Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD
Civil Remedies Division
In the Case of:
Barbara Ford, R.N.,
Petitioner,
- v. -
The Inspector General.
DATE: October 18, 1991
DOCKET No. C-289
DECISION
On June 13, 1990, the Inspector General notified Petitioner, Barbara Ford,
R.N., that she would be
excluded from participating in Medicare and any State health care program, such
as Medicaid, as defined
in Section 1128(h) of the Social Security Act (Act), for a period of ten years.
The I.G. advised her that the
exclusion was mandated based on her conviction of a criminal offense "relating
to neglect or abuse of
patients in connection with the delivery of a health care item or service"
within the meaning of section
1128(a)(2) of the Act and that section 1128(c)(3)(B) of the Act provides that
such exclusions be for a
period of not less than five years. By letter dated August 13, 1990, Petitioner
timely requested a hearing.
On September 21, 1990, the I.G. advised Petitioner that her exclusion had been
amended to five years.
The case was assigned originally to Judge Charles E. Stratton, who conducted
a prehearing conference on
October 16, 1990. By Prehearing Order dated October 19, 1990, a schedule was
set for hearing of the case
by summary disposition. On November 16, 1990, the I.G. filed his motion for
summary disposition. On
December 18, 1990, Petitioner filed a memorandum opposing the I.G.'s motion
for summary disposition.
The I.G. replied, and the Petitioner filed a sur-reply in January, 1991. Judge
Stratton heard oral argument
on the motion for summary disposition on February 7 and March 14, 1991. During
oral argument, Judge
Stratton set the case for an in-person evidentiary hearing and gave the I.G.
the opportunity to file a motion
to amend the June 13, 1990 notice to include section 1128(a)(1) of the Act as
an additional basis to exclude
Petitioner. On March 22, 1991, the I.G. filed a motion to amend and on April
12, 1991 Petitioner filed her
opposition and requested oral argument.
On April 15, 1991, the case was reassigned to me. I heard oral argument on
the motion to amend on April
24, 1991. In a preliminary ruling issued on April 26, 1991, I concluded that:
1) the I.G.'s motion to amend presents a "new issue" within the
meaning of 42 C.F.R. 498.56;
2) the I.G.'s motion is within the time requirements under such regulation;
3) Petitioner had proper notice of the I.G.'s intent to amend the Notice;
4) Petitioner had opportunity to defend against the I.G.'s motion to amend the
Notice to add
section 1128(a)(1) as an additional basis for the exclusion; and
5) there is no prejudice or undue hardship to Petitioner arising from such an
amendment.
My preliminary ruling was made in the interest of judicial economy. It was
reasonable, practical and fair
to consolidate the issues. Petitioner received notice of the I.G.'s intent to
amend and had opportunity to
respond both orally and in writing. Petitioner did not demonstrate that she
would be prejudiced or suffer
undue hardship if I permitted the I.G. to amend. I considered Petitioner's argument
that the I.G. was "issue
shopping", but found nothing that would have precluded the I.G. from issuing
a new notice under section
1128(a)(1) at any time, even had I found on behalf of Petitioner regarding the
section 1128(a)(2) exclusion.
Lastly, the mandatory nature of the statute requires the Secretary, and his
lawful delegate, the I.G., to seek
an exclusion if the authority to do so is deemed to exist. Thus, it was in Petitioner's
benefit to have the
issue consolidated and resolved in the pending hearing rather than potentially
have to address this issue at a
subsequent future proceeding.
On May 10, 1991, in New York City, I held an in-person evidentiary hearing.
At the hearing, I made final
my preliminary ruling. 1/
I have considered the arguments, the evidence and the applicable law. I conclude
that the five year
exclusion imposed and directed by the I.G. against Petitioner is mandated by
law, under both sections
1128(a)(1) and 1128(a)(2) of the Act and that the exclusion is the minimum mandatory
period required by
section 1128(c)(3)(B) of the Act.
ISSUES
The issues in this case are as follows:
1) Whether Petitioner was convicted of a criminal offense "related to
the delivery of an item or
service" under Medicare or Medicaid within the meaning of section 1128(a)(1)
of the Act; and
2) Whether Petitioner was convicted of a criminal offense "relating to
neglect or abuse of patients in
connection with the delivery of a health care item or service" within the
meaning of section 1128(a)(2) of
the Act.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
1. Petitioner, Barbara Ford, is a Registered Nurse in the State of New York
and has been a health care
provider for thirty years. Tr. 102-104; I.G. Ex. 15. 2/
2. On January 27, 1988, Mary Hissiger was a driver for Century Ambulance Service
and Chacko Kurian,
an emergency medical technician, accompanied her. Tr. 68, 75; I.G. Ex. 14.
3. Ms. Hissiger was directed by her dispatcher to go to the Clearview Nursing
Home in Whitestone, New
York on January 27, 1988 at approximately 4:00 a.m. to pick up an 82 year old
woman named Mae Duffy.
Tr. 69 - 70; I.G. Ex. 14.
4. Upon observation and examination of Ms. Duffy by the ambulance crew, her
condition was congestive
heart failure, dyspnea (difficulty breathing), cyanosis (bluish tinted skin
due to oxygen deprivation),
diaphoresis (sweating), and unresponsive to stimuli. Tr. 73-75; I.G. Ex. 10,
14. Ms. Duffy was having
difficulty breathing, had audible lung sounds indicating fluid in her lungs
and had an abnormally high
respiration rate along with a low pulse rate. Tr. 76-78, 89; I.G. Ex. 10, 14.
5. Ms. Hissiger and Mr. Kurian were instructed by Clearview Nursing Home to
take Ms. Duffy to
Flushing Hospital, where Ms. Duffy's treating physician, Dr. J. Konefal, was
affiliated. Tr. 79; I.G. Ex. 10,
14
6. Due to the unavailability of emergency room beds at Flushing Hospital, the
ambulance crew was
advised by their dispatcher to divert to Parkway Hospital. Tr. 92-93. During
the transport, the crew had to
administer oxygen to Ms. Duffy and suction out her airway to assist her breathing.
Tr. 73, 77-78; I.G. Ex.
14.
The ambulance arrived at Parkway at approximately 5:15 a.m. Tr. 79.
7. Century Ambulance policy dictated that if a designated hospital is on diversion,
irrespective of the
location or affiliation of the patient's doctor, the ambulance crew will proceed
to an available hospital. Tr.
87.
8. On January 27, 1988, Petitioner was the nursing supervisor on duty at Parkway
Hospital in charge of
medicine, surgery and the critical care areas, which included the emergency
room. Tr. 104.
9. Petitioner received a call from a Mr. Cantos, the nurse on duty, and was
informed that a Century
Ambulance had brought a patient to the emergency room with transfer papers designating
Flushing
Hospital. Parkway had no prior notification that the ambulance was bringing
Ms. Duffy to its emergency
room. Tr. 104.
10. Petitioner went directly to the emergency room and found Ms. Duffy on a
stretcher, accompanied by
an ambulance driver. Tr. 105.
11. Petitioner was informed by Mr. Cantos of the discrepancy in the transfer
sheet and was informed that
Ms. Duffy's doctor was affiliated with Flushing Hospital. Tr. 105.
12. Petitioner contacted Ms. Thomas, the supervisor of nursing at Clearview
Nursing Home, and asked
how she could locate Ms. Duffy's physician. Tr. 109-110.
13. Petitioner did not physically examine Ms. Duffy, and made no extensive
assessment of her condition.
Tr. 84, 106; I.G. Ex. 15. The emergency room physician was not present and Mr.
Cantos did not know his
whereabouts. Tr. 107. No one attempted to page the emergency room doctor to
enable him to examine
Ms. Duffy, nor did Petitioner make any personal effort to find him. Tr. 108,
113, 114, 122-3; I.G. Ex. 15.
No hospital record was ever created reflecting Ms. Duffy's presence in the emergency
room. Tr. 108, 120,
123.
14. In the criminal proceeding, Petitioner admitted under oath that when Ms.
Duffy was in the emergency
room she manifested "life threatening symptoms" which "would
require immediate treatment". Tr. 127-
128; I.G. Ex. 15.
15. No determination was made by anyone as to Ms. Duffy's financial ability
to pay her expenses.
Tr. 108.
16. After reviewing the transfer sheet from Clearview Nursing Home which indicated
that Ms. Duffy
was to be transported to Flushing Hospital and being told that Flushing was
"closed", Petitioner called Ms.
Thomas to determine whether Ms. Duffy's physician wanted her to remain at Parkway
Hospital or go to
Flushing Hospital. Tr. 105, 110. Ms. Thomas advised Petitioner that Ms. Duffy's
physician wanted her
taken to Flushing. Tr. 111. Thereupon, Petitioner directed the dispatcher of
Century Ambulance to
transport Ms. Duffy to Flushing Hospital. Tr. 111.
17. Petitioner directed the ambulance crew to take Ms. Duffy to Flushing Hospital,
without her being
examined by the emergency room physician, nor having a hospital report created,
and without any effort to
properly assess her medical stability, despite her life-threatening condition.
FFCL 8-14 and 16.
18. Petitioner's principal concern after being notified of Ms. Duffy's presence
in the emergency room of
Parkway Hospital was to get Ms. Duffy to Flushing Hospital where her physician
"was waiting to see her,
or would be meeting her". Petitioner believed that having Ms. Duffy await
for and receive care in
Parkway's emergency room (a period of approximately one hour), which would have
included being
examined by a physician and the preparation of forms, would have resulted in
"delaying the process of
getting her to her care". Tr. 112-113.
19. The total time the patient stayed in the emergency room at Parkway was
approximately 15 minutes.
Tr. 112.
The approximate driving time from Parkway Hospital to Flushing Hospital was
10-15 minutes. Tr. 85,
109. Ms. Duffy was received at Flushing Hospital in "very poor condition".
I.G. Ex. 4. It took
approximately three hours before Ms. Duffy was admitted or seen by a physician.
Tr. 115-116.
20. Dr. Clark, who testified in Petitioner's criminal proceeding, opined that
Ms. Duffy's condition
remained the same from the time of leaving Clearview Nursing Home until she
was examined and treated
at Flushing Hospital. Tr. 118; P. Ex. 2.
21. Petitioner admits that technically she violated New York State Public Health
Statute 2805-b(2). Tr.
112.
This section provides that "any person who in any manner excludes, obstructs
or interferes with the ingress
of another person into a general hospital who appears there for the purpose
of being examined or diagnosed
or treated; or any person who obstructs or prevents such other person from being
examined or diagnosed or
treated by an attending physician thereat shall be guilty of a misdemeanor and
subject to a term of
imprisonment not to exceed one year and a fine not to exceed one thousand dollars".
I.G. Ex. 3.
22. New York State Public Health Statute 2805-b(2) contemplates circumstances
where a person could be
transferred from one hospital to another, but only "[a]fter examination,
diagnosis and treatment by an
attending physician and where, in the opinion of such physician, the patient
has been stabilized sufficiently
to permit it". Before any such transfer, a form must be completed indicating,
among other things, the
treatment the patient received at the original hospital, the identity of the
physician at the receiving hospital
who authorized its availability to treat the patient, and the signature of the
physician ordering the transfer.
I.G. Ex. 3.
23. At the time Ms. Duffy was transported to Parkway Hospital for emergency
treatment, it was the
hospital's policy "that every patient who is presented in the Emergency
Room have a medical record made
out, each and every patient is assessed by a Registered Professional Nurse and
then seen, examined and
treated by a physician". I.G. Ex. 4.
24. Petitioner was counseled by Joseph Fiorentino, R.N., Vice President of
Patient Care Services for
Parkway Hospital, in an Employee Conference Record dated January 27, 1988 (which
she signed), that her
actions were inappropriate "because once the patient was brought into the
hospital and brought to the
Emergency Room a record was not made out on this patient, and the patient was
not seen and examined".
She was further advised that her actions "were unsafe and put the patient's
life as well as the hospital in
jeopardy". Consequently, Petitioner was suspended without pay for a period
of three days, January 27
through January 29, 1988. I.G. Ex. 4.
25. Ms. Duffy was a Medicaid recipient and a Medicare beneficiary at the time
she was transported to
Parkway Hospital. Tr. 38-42; I.G. 11, 13.
26. Petitioner's employer, Parkway Hospital, has been a participant in the
Medicare Program since May of
1966. Tr. 42 - 43. I.G. Ex. 12.
27. Petitioner was convicted, in a criminal jury trial in Queens, New York,
of violating New York Public
Health Law 2805-b(2) and was sentenced to 200 hours of community service and
a $500 fine. I.G. Ex. 6.
28. The Secretary of the Department of Health and Human Services (Secretary)
delegated to the I.G. the
authority to determine, impose, and direct exclusions pursuant to section 1128
of the Act. 48 Fed. Reg.
21662 (May 13, 1983).
29. The exclusion imposed and directed against Petitioner by the I.G. is for
five years, the minimum
period required by the Act. Sections 1128(a)(1), (a)(2), and (c)(3)(B) of the
Act.
30. The exclusion imposed and directed against Petitioner by the I.G. is mandated
by law. Sections
1128(a)(1), (a)(2) and (c)(3)(B) of the Act.
RATIONALE
1. Petitioner was convicted of a criminal offense related to the delivery of
an item or service under
Medicare or Medicaid programs.
Petitioner, Barbara Ford, is a registered nurse, and was the emergency room
supervisor at Parkway
Hospital on the morning of January 27, 1988. FFCL 1, 8. Mae Duffy, a resident
at the Clearview Nursing
Home, was both a Medicare and Medicaid beneficiary/recipient at that time. FFCL
25. Parkway Hospital
was a participant in the Medicare program at the time Ms. Duffy was transported
there for emergency
treatment. FFCL 26.
Petitioner was convicted of excluding, obstructing and interfering with the
ingress of Ms. Duffy into
Parkway Hospital for examination, diagnosis, and treatment; and for obstructing
or preventing Ms. Duffy
from being examined, diagnosed or treated by an attending physician at such
hospital. FFCL 21, 27.
Petitioner was sentenced to 200 hours of community service and a $500 fine.
FFCL 27.
Petitioner admits she was convicted, but contends that her conviction is not
a conviction of a criminal
offense related to the delivery of an item or service pursuant to the Medicare/Medicaid
program within the
meaning of section 1128(a)(1) of the act. Petitioner argues that the legislative
history of Section 1128(a)
demonstrates that 1) it was enacted to protect the Medicare and Medicaid programs
from "fraud and abuse
and beneficiaries from incompetent practitioners and from inappropriate or inadequate
care". P. Br. at 8.
In short, Petitioner argues that the "mere existence" of Ms. Duffy
and Parkway Hospital being program
participants does not make the offense "program related" and in this
case there is no "impact on the
integrity of the [Medicare/Medicaid] program itself". Id. at 8, 10. Petitioner
misconstrues the legislative
history and the factual circumstances of this case.
Section 1128(a)(1) of the Act requires the Secretary (or his lawful delegate,
the I.G.) to impose and direct
an exclusion against any individual or entity:
that has been convicted of a criminal offense related to the delivery of an
item or service under . . .
[Medicare] or under any . . . [Medicaid] program.
While the Act does not specifically define the term "criminal offense
related to the delivery of an item or
service", a criminal offense related to the delivery of an item or service
has been held to fall within the
reach of section 1128(a)(1) where:
[T]he submission of a bill or claim for Medicaid reimbursement is the necessary
step, following
the delivery of the item or service, to bring the "item" within the
purview of the program.
Jack W. Greene, DAB App. 1078 at 7 (1989); aff'd sub nom. Greene v. Sullivan,
731 F.Supp 835 and 838
(1990). Under the rationale of Greene, a criminal offense is an offense which
is related to the delivery of
an item or service under Medicare or Medicaid where the delivery of a Medicare
or Medicaid item or
service is an element in the chain of events giving rise to the offense.
In H. Gene Blankenship v. Inspector General, DAB Civ. Rem. C-67 (1989), the
Board stated that the
determination of whether a conviction is related to the delivery of an item
or service under the Medicare
program "must be a common sense determination based on all the relevant
facts as determined by the
finder of fact, not merely a narrow examination of the language within the four
corners of the final
judgment and order of the criminal trial court."
The facts of this case are straightforward. Petitioner was convicted under
New York Public Health Law
section 2805-b(2) for failing to allow Ms. Duffy to utilize the services of
Parkway's emergency room,
including the examination, diagnosis and treatment by a physician. Petitioner's
criminal conviction
involved the failure to provide the requisite care to both a program beneficiary
and recipient (Ms. Duffy)
by a program provider (Parkway). Therefore, Petitioner's criminal offense related
to providing an item or
service (emergency care) under the Medicare and Medicaid programs.
Common sense, as well as the Departmental Appeals Board (DAB) precedent, dictate
that Petitioner`s
conviction is program related within the meaning of section 1128(a)(1). The
conviction is, both under the
Blankenship test of "common sense determination based on all of the relevant
facts", and under the Greene
test of "an act that directly and necessarily follows from the delivery
of the item or service", directly related
to the Medicare and Medicaid programs.
Petitioner admits that the Act applies to inadequate or inappropriate care.
P. Br. at 8. Petitioner denies,
however, that her conviction was program related within the meaning of the statute.
Id. Petitioner's
criminal conviction under the N.Y Public Health law was for failure to provide
the requisite emergency
services to Mrs. Duffy. Petitioner's criminal offense involved inadequate or
inappropriate care because
Petitioner's actions resulted in Mrs. Duffy not receiving the level of care
mandated by the law. Therefore,
Petitioner's criminal offense is program related, as, by Petitioner's own admission,
inadequate or
inappropriate care situations are covered by the Act.
2. Petitioner was convicted of a criminal offense relating to neglect or abuse
of patients in
connection with the delivery of a health care item or service.
Century Ambulance Service was called to Clearview Nursing Home on January 27,
1988 to provide
emergency transportation for Mae Duffy, an 82 year old resident of the nursing
home. FFCL 3. Ms.
Duffy's condition was noted by the ambulance crew as congestive heart failure,
dyspnea (labored
breathing); cyanosis (blue skin color due to oxygen deprivation); diaphoresis
(excessive sweating); and
unresponsive to stimuli. FFCL 4. She had difficulty breathing (including a high
respiration rate with a low
pulse rate), and audible lung sounds necessitating the crew to suction out her
airways in route to the
hospital and give her continuous oxygen by mask. FFCL 4, 6. In essence, a crew
member concluded that
Ms. Duffy was "an elderly woman who was dying". Tr. 78-79. 3/
The transfer sheet from Clearview Nursing Home noted the destination as Flushing
Hospital, the hospital
where Ms. Duffy's physician, Dr. J. Konefal, was affiliated. FFCL 5. Due to
the absence of available
emergency room beds at Flushing Hospital causing that facility to be placed
on diversion, the dispatcher
for Century Ambulance, based on standard policy, directed that Ms. Duffy be
transported to an alternate
facility, Parkway Hospital. FFCL 6-7.
No prior notification was afforded Parkway Hospital when Ms. Duffy arrived in
the emergency room.
FFCL 9. The admitting nurse saw that the transfer sheet indicated that Ms. Duffy
was to be transported to
Flushing Hospital and contacted his supervisor, Petitioner. FFCL 9, 11. Petitioner
made a cursory
observation of Ms. Duffy's condition but at no time did she physically examine
her. FFCL 13. The
attending physician was not in the emergency room, could not readily be located,
and no effort was made
to page him. FFCL 13.
Petitioner did not accept the ambulance crew's statement that Flushing Hospital
was "closed", but called
the supervisor of nursing, Ms. Thomas, at Clearview Nursing Home for clarification
and advice where to
send Ms. Duffy. Tr. 105; FFCL 16. Ms. Thomas apparently contacted Ms. Duffy's
physician, who
indicated that she should be transported to Flushing Hospital. Based on this
information, Petitioner
directed the ambulance crew to transport Ms. Duffy to Flushing Hospital. FFCL
16. Apparently,
Petitioner felt that Ms. Duffy would be better served by going to Flushing Hospital,
where her own
personal physician was affiliated, and avoid the delay caused by awaiting the
presence of the Parkway
physician to examine, diagnose, and treat Ms. Duffy and complete the required
paper work. FFCL 18. No
one at Parkway ever contacted Flushing Hospital to determine whether it was
still on diversion and as a
result Ms. Duffy waited three hours at Flushing for examination and treatment.
FFCL 13, 16, 19. Ms.
Duffy's condition upon arrival at Parkway was "life threatening" and
she arrived at Flushing Hospital in
"poor condition". FFCL 4, 14, 19. However, her condition did not worsen
during the period of time
between her departure from Clearview Nursing Home and her receipt of treatment
at Flushing Hospital.
FFCL 20.
Pursuant to New York Public Health Law 2805-b(2) hospitals, such as Parkway,
are under strict liability to
provide examination, diagnosis, or treatment to anyone who arrives at the emergency
room in need of
medical assistance. Failure to allow such treatment will result in a misdemeanor,
subjecting the guilty
person to imprisonment and fine. This statutory provision contemplates the transfer
of the patient to
another facility but only after the patient "has been sufficiently stabilized
to permit it". Prior to such
transfer, the attending physician at the original hospital must attest that
1) the patient is sufficiently stable
to withstand transfer; and 2) the receiving hospital is available and willing
to accept the patient; and 3) an
attending physician is there to admit the patient. At the time of transfer,
a form must be completed,
including pertinent history of the patient's condition, and treatment and other
information related to the
transfer of the patient. As previously indicated, Petitioner was found guilty
of violating N.Y. Public Health
Law 2805-b(2), sentenced to community service and fined. FFCL 21-22, 27.
The requisite criteria to support a finding of a conviction of a criminal offense
relating to the neglect or
abuse of patients was set forth by me in Vicky L. Tennant, DAB Civ. Rem. C-329
(1991), citing Dawn
Potts, DAB Civ. Rem. C-291 (1991):
Under section 1128(a)(2), the statutory criteria may be met in one of two
circumstances. First, a
party who is convicted of patient neglect or abuse will be found to have been
convicted of an offense
within the meaning of the section. Ronald Allen Cormier, DAB Civ. Rem. C-206
(1990). Second, a party
who is convicted of an offense relating to patient neglect or abuse will be
found to have been convicted of
an offense within the meaning of the section. See Summit Health Limited, dba
Marina Convalescent
Hospital, DAB Civ. Rem. C-108 (1989).
The I.G. concedes that Petitioner's conviction did not involve "abuse",
but patient "neglect". I.G. Br. at 14.
The term "neglect" is not defined in the statute. Absent a statutory
definition, "neglect" should be given its
common and ordinary meaning. As I indicated in Bruce Lindberg, D.C., DAB Civ.
Rem. C-348 (1991),
which referred to Thomas M. Cook, DAB Civ. Rem. C-106 (1989):
"Neglect" is defined in Webster's Third New International Dictionary,
1976 Edition as "1: to give little
or no attention or respect to: . . . 2: to carelessly omit doing (something
that should be done) either
altogether or almost altogether . . . . Lindberg at 10.
While Public Health Law 2805-b(2) does not utilize the term "neglect",
a fair reading of this statutory
provision demonstrates that the legislature intended that persons needing emergency
care who present
themselves to a general hospital, such as Parkway, will be seen, diagnosed,
and treated by a physician, and
anyone who interferes with that process will be guilty of a criminal offense.
Moreover, prior to transfer of
any such patient from the original facility to another hospital, the attending
physician must attest that the
patient is sufficiently stable for transfer and that the receiving Hospital
is available and will treat such
patient. In this case, Petitioner was convicted of interfering with Ms. Duffy's
care at the emergency room
of Parkway in that she was never seen by a physician and no record was created
pursuant to New York law
regarding her stability for transfer and the availability of Flushing Hospital
to treat Ms. Duffy at the time of
transfer.
As a registered nurse with supervisory responsibility over the emergency room,
Petitioner had an
obligation and duty to ensure that there was compliance with N.Y. Public Law
2805-b(2) at the time Ms.
Duffy was transported to Parkway for emergency treatment. The New York law establishes
a standard of
care that each hospital must provide persons seeking emergency treatment, and
Petitioner by her actions
prevented Ms. Duffy from receiving the requisite care. Ms. Duffy, an 82 year
old unconscious person with
significant life threatening medical problems, was not in a position where she
could assist herself, but was
totally dependent on others for her care and welfare.
Petitioner's failure to adhere to her statutory duty to refrain from acts that
prevented Ms. Duffy from
receiving emergency care at Parkway Hospital constitutes "neglect"
as that term has been defined by case
precedent interpreting section 1128(a)(2). See, Tennant, supra. (failure to
file an incident report required
by Colorado Department of Health Regulation); Potts, supra. (failure to report
allegations of abuse as
required by Florida law); Olian Small, DAB Civ. Rem C-272 (1991) (failure to
administer medications to
elderly nursing home patients); Cook, supra. (reckless conduct which placed
another in imminent danger of
serious bodily harm); Summit Health Limited, supra. (failure to perform duty
to plan patient care and
administer medications and treatment to patients); and Rosette Elliott, DAB
Civ. Rem. C-200 (1990)
(reckless conduct that places another in imminent danger of serious bodily harm).
The statutory language
of N.Y. Public Health Law 2805-b(2) is clear as to the level of care that should
have been rendered to Ms.
Duffy while at Parkway Hospital. Due to Petitioner's actions, that care was
not provided Ms. Duffy. It has
been specifically held that Congress intended the term "neglect" as
used in section 1128(a)(2) to "include
failure by a party to satisfy a duty of care to another person". Rosette
Elliott, supra. at 7.
As supervisor of the emergency room, it was Petitioner's responsibility to
see that the required care was
given. Not only did Petitioner fail to ensure that the required care was provided
by Parkway to Ms. Duffy,
she improperly relied on her own judgment that Flushing Hospital was a more
appropriate facility to treat
Ms. Duffy than Parkway. This determination was based solely on conversations
with Ms. Thomas, the
supervisor of nursing at Clearview Nursing Home, and a cursory observation of
Ms. Duffy in the
emergency room. While Petitioner's intentions may have been well motivated in
that she believed any care
at Parkway would delay care at Flushing, the simple fact is that Petitioner
had no right to exercise that
determination for Ms. Duffy. 4/
Under New York Public Health law, that determination could only be made by
a physician who 1)
examined, diagnosed and treated Ms. Duffy; 2) concluded she was sufficiently
stable to be transferred; and
3) was advised that Flushing Hospital was available to receive and treat her.
Also, having failed to
ascertain that Flushing Hospital could treat Ms. Duffy at the time Petitioner
directed the ambulance crew to
transport her to that facility, Ms. Duffy languished for three hours at Flushing
Hospital before receiving
treatment. Moreover, Petitioner's actions were contrary to the policy of Parkway
Hospital requiring that
every emergency room patient be assessed by a registered nurse and examined
and treated by a physician,
and that a medical record of such examination be prepared. FFCL 23. This failure
to follow hospital
policy resulted in Petitioner being suspended without pay for three days. FFCL
24.
Petitioner contends that her conviction does not fall within the ambit of section
1128(a)(2), because it is not
a criminal offense relating to neglect or abuse of patients. P. Br. at 11. Petitioner
supports this position
with the following: 1) the State statute under which she was convicted imposed
strict liability without the
need to find "fault, bad motive, bad intent, or failure to fulfill an obligation";
2) her conduct relating to Ms.
Duffy was intended to see that she received "better health care than that
she would have received at
Parkview [sic] Hospital"; and 3) her decision to have Ms. Duffy transferred
to Flushing Hospital "was
made after it was determined that the patient was in a sufficiently stable state
to be safely transported to the
correct hospital". P. Mem. at 6-15.
Petitioner cannot take comfort in that N.Y Public Health Law 2805-b(2) imposed
strict liability on persons
who prevented emergency room patients from receiving the level of care required
by law. There is nothing
in the statutory language of section 1128(a)(2) that imposes a requirement of
"intent" or "scienter" to find
"neglect or abuse". As the appellate panel held in Summit Health Limited,
dba Marina Convalescent
Hospital, DAB App. 1173 (1990) at 9:
[T]here is no requirement in section 1128 (a)(2) that the entity or individual
be convicted of an offense
with a particular level of intent as a necessary element. Under section 1128
(a)(2), the level of intent of the
entity or individual in committing the offense is not relevant.
I do not accept Petitioner's interpretation of the applicable provisions of
the N.Y. Public Health law
as imposing no duty or obligation on Petitioner regarding Ms. Duffy's receipt
of the required emergency
care. To the contrary, I find that such a duty or obligation is imposed by New
York law.
Additionally, the contention that Petitioner believed Ms. Duffy would receive
better care at Flushing
Hospital than at Parkway is irrelevant to a finding of "neglect" under
section 1128(a)(2). Her motivation
for her actions, even if meritorious, cannot be a substitute for preventing
proper treatment of a patient
needing emergency room care. In this case, Petitioner has no right to impose
her judgment as to the proper
location of treatment for Ms. Duffy. By New York law, only an examining physician
could make that
determination. Petitioner prevented that from happening by directing the ambulance
crew to transport Ms.
Duffy to Flushing Hospital without the provisions of section 2805-b(2) being
met.
Lastly, the record flatly contradicts Petitioner's assertion that she made
sure that Ms. Duffy was sufficiently
stable prior to transfer to Flushing Hospital. She was never examined by a physician
and Petitioner only
briefly observed her condition before contacting Clearview Nursing Home and
directing her to be sent to
Flushing for treatment. Petitioner attempts to minimize the culpability of her
conduct by pointing out that
Ms. Duffy's condition did not worsen from the time she left Clearview until
being treated at Flushing. Tr.
25. This gratuitous circumstance cannot excuse the actions of Petitioner, which
resulted in Ms. Duffy
failing to receive at Parkway Hospital the level of care required under New
York law.
3. The exclusion imposed and direct against Petitioner is mandated by law.
Sections 1128(a)(1), 1128(a)(2) and 1128(c)(3)(B) of the Act require the I.G.
to exclude individuals and
entities from the Medicare and Medicaid programs for a minimum period of five
years, when such
individuals and entities have been convicted of a criminal offense relating
to neglect or abuse of patients in
connection with the delivery of a health care item or service. Congressional
intent is clear from the express
language of section 1128(c)(3)(B):
In the case of an exclusion under subsection (a), the minimum period of exclusion
shall be not less than
five years . . .
The I.G. must apply the minimum mandatory exclusion of five years once a section
1128(a) violation is
established.
I recognize that application of the congressionally mandated five year exclusion
to Petitioner may present
the appearance of an unnecessarily harsh result. At Petitioner's Sentence Proceedings,
Judge Richard
Buchter indicated the following:
Well, I think it is certainly undisputed that Mrs. Ford is an outstanding
nurse. I've read all the letters
that counsel has submitted to the Court. It is clear that defendant has provided
a high level of service to the
sick and, up until this incident, has always been an ethical and compassionate
person. The Court concludes
from that this was, in fact, an aberrational act, which is not consistent with
the defendant's character.
I.G. Ex. 6.
Unlike cases brought under section 1128(b) of the Act, where I have the authority
to consider the
reasonableness of the exclusions and the trustworthiness of petitioners, I have
no discretion here and must
affirm the exclusion. Absence the exercise of discretion, section 1128(a) violations
unfortunately may
result in exclusions of a length seemingly disproportionate to the severity
of the crimes upon which the
exclusions are based. As stated in Dawn Potts, supra at 8:
. . . Congress has not given the Secretary discretion to reduce exclusions
under section 1128(a)(2)
beneath the five year minimum mandatory period. Congress determined as a matter
of legislative policy
that cases of patient abuse and neglect pose such a threat to program beneficiaries
and recipients that
minimum exclusion of five years were necessary for the protection and well-being
of beneficiaries and
recipients. The inevitable consequence of that policy determination is that
in some cases, such as this one,
application of the Act will produce results which seem to be harsh.
CONCLUSION
Based on the law and the facts of this case, I conclude that the I.G. properly
excluded Petitioner from the
Medicare and Medicaid programs for a period of five years, pursuant to sections
1128(a)(1), 1128(a)(2)
and 1128(c)(3)(B) of the Act.
____________________________
Edward D. Steinman
Administrative Law Judg
1. At the outset of the May 10, 1991 evidentiary hearing, I asked if Petitioner
had any further argument
with regard to the I.G.'s motion to amend and my preliminary ruling. Petitioner's
counsel presented no
further argument and accepted the amendment in light of the I.G.'s ability in
the future to raise section 1128
(a)(1) as an additional basis for the mandated exclusion. Accordingly, I made
final my preliminary ruling
of April 26, 1991.
2. The parties' exhibits, briefs, memoranda and the transcript of the hearing will be cited as follows:
I.G.'s Exhibit I.G. Ex. (number)
Petitioner's Exhibit P. Ex. (number)
I.G.'s Brief I.G. Br. (page)
Petitioner's Brief P. Br. (page)
I.G. Reply Brief I.G. R. Br.(page)
Petitioner's Memorandum in Opposition
to Motion for Summary Disposition P. Mem. (page)
Transcript of hearing Tr. (page)
My Findings and Conclusions FFCL (number)
3. Counsel for the I.G. averred in a preliminary statement at the evidentiary
hearing that Ms. Duffy was
suffering from AIDS (Acquired Immune Deficiency Syndrome). Tr. 16. Implicit
in this assertion is that
this condition was a factor in her being denied examination and treatment at
Parkway Hospital. Since the
I.G. offered no proof to establish Ms. Duffy did in fact have AIDS, I make no
such finding.
4. Petitioner estimated that it would have taken approximately one hour for
Ms. Duffy to receive
examination and treatment by a physician at Parkway Hospital. In contrast, the
driving time to Flushing
Hospital from Parkway was approximately 15 minutes. FFCL 18-19.