Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD
Civil Remedies Division
In the Case of:
Peter J. Edmonson
Petitioner,
- v. -
The Inspector General.
DATE: November 7, 1991
Docket No. C-401
DECISION
On May 24, 1991, the Inspector General (I.G.) notified
Petitioner that he was being excluded from participation
in Medicare and any State health care program for a
period of five years. 1/ The I.G. told Petitioner that he
was being excluded as a result of his conviction in a
Louisiana State court of a criminal offense related to
the abuse or neglect of patients in connection with the
delivery of a health care item or service. Petitioner
was advised that the exclusion of individuals convicted
of such an offense is mandated by section 1128(a)(2) of
the Social Security Act (Act). The I.G. further advised
Petitioner that the required minimum period of such an
exclusion is five years. The I.G. informed Petitioner
that he was being excluded for the minimum mandatory five
year period.
On June 11, 1991, Petitioner timely requested a hearing
and the case was assigned to me. On July 26, 1991, a
telephone prehearing conference was held in which both
Petitioner and the I.G. participated. At the prehearing
conference, the parties agreed to deadlines by which time
they were to submit, respectively, a motion for summary
disposition and an opposition. The I.G. was given until
August 21, 1991 to file a motion for summary disposition
and supporting brief. Petitioner was given until
September 30, 1991 to file a brief in response to the
I.G.'s motion for summary disposition.
The I.G. has timely submitted his motion for summary
disposition and supporting brief. Petitioner was
scheduled to file his response by September 30, 1991, but
did not do so. After repeated attempts by Civil Remedies
Division staff attorneys to contact him, Petitioner was
reached during the week of October 14, 1991. Petitioner
was informed by a Civil Remedies Division staff attorney
that he was tardy with his response. After consultation
with both the I.G. and Petitioner, I gave Petitioner
until October 31, 1991 to submit his response. The I.G.
did not object to the extension of time given to
Petitioner.
On October 25, 1991, the Civil Remedies Division received
Petitioner's response. Petitioner's response consisted
of resubmitting a copy of his June 11, 1991 letter
requesting a hearing along with a brief cover letter
listing the name and address of a person whom Petitioner
described as a witness.
I have considered the I.G.'s brief and supporting
documentation. I have also considered the documents
submitted by Petitioner, including Petitioner's June 11,
1991 letter in which he requested a hearing to protest
his exclusion. I conclude that there are no disputed
questions of material fact that would require an
evidentiary hearing. I further conclude that the I.G.'s
decision to exclude Petitioner in this case is mandated
by law. I accordingly enter summary disposition in favor
of the I.G. and against the Petitioner.
ISSUE
The issue in this case is whether Petitioner was convicted
of a criminal offense relating to the 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 was employed as a nurse's assistant at
Shreveport Manor Nursing Home located in Shreveport,
Louisiana. I.G. Br. at 1, 5; I.G. Ex. 4; See I.G. Ex. 3.
2/
2. The alleged victim was, at the time of the incident,
a resident at Shreveport Nursing Home. I.G. Ex. 3; I.G.
Ex. 4; I.G. Br. 5; Hughes Aff.
3. Petitioner was charged with the offense of "Cruelty to
the Infirm" on October 12, 1989. It was alleged in an
affidavit for an arrest warrant that Petitioner
intentionally and negligently mistreated a nursing home
resident by beating him with a shoe. I.G. Ex. 3, 4.
4. Petitioner pled guilty in Louisiana state court to
simple battery on August 27, 1990, and was sentenced to six
months in the parish jail. The sentence was suspended and
Petitioner was placed on probation for a period of one
year. I.G. Ex. 1.
5. Petitioner was convicted of a criminal offense
relating to neglect and abuse of patients in connection
with the delivery of a health care item or service.
Findings 1-4.
6. Petitioner was convicted of a criminal offense within
the meaning of section 1128(a)(2) of the Social Security
Act. Findings 1-5.
7. On May 24, 1991, the I.G. excluded Petitioner from
participating in the Medicare program and directed that he
be excluded from participating in Medicaid, pursuant to
section 1128(a)(2) of the Act.
8. There are no disputed issues of material fact in this
case and summary disposition is appropriate. Findings 1-7.
9. The Secretary of Health and Human Services (the
Secretary) delegated to the I.G. the authority to
determine, impose, and direct exclusions pursuant to
section 1128 of the Social Security Act. 48 Fed. Reg.
21662 (May 13, 1983).
10. The exclusion imposed and directed against Petitioner
by the I.G. was for five years, the minimum period required
by law for exclusions imposed and directed pursuant to
section 1128(a)(2) of the Social Security Act. Social
Security Act, section 1128(c)(3)(B).
11. Petitioner may not collaterally attack his criminal
conviction in this proceeding. Social Security Act,
sections 1128(a)(1) and 1128(c)(3)(B).
12. The exclusion imposed and directed against Petitioner
by the I.G. is mandated by law. Findings 5-7.
ANALYSIS
There are no disputed facts in this case. The undisputed
facts are that, on August 27, 1990, Petitioner pled guilty
in State court in Louisiana to the crime of simple battery.
The arrest warrant and supporting documentation (I.G. Exs.
3 and 4) and affidavit of William Hughes, as well as the
I.G.'s brief, make it clear that the crime to which
Petitioner pled guilty arose from an incident at Shreveport
Nursing Home in which Petitioner was alleged to have
repeatedly struck a 75 year-old nursing home resident with
a shoe. Based on Petitioner's guilty plea and on the
allegations which led to the criminal complaint to which
Petitioner pled, the I.G. excluded Petitioner from
participating in any Medicare or Medicaid program for a
period of five years, pursuant to section 1128(a)(2) of the
Act.
1. Petitioner was convicted of a criminal offense within
the meaning of section 1128(a)(2) of the Act.
Section 1128(i)(3) defines what is a criminal conviction
for the purposes of subsection 1128(a)(2) of the Act and
states, in relevant part: "For purposes of subsections (a)
and (b), an individual or entity is considered to have been
'convicted' of a criminal offense ... (3) when a plea of
guilty or nolo contendere by the individual or entity has
been accepted by a Federal, State or local court. . .".
It is undisputed that, on August 27, 1990, Petitioner did
plead guilty to the offense of battery. I.G. Ex. 1; Hughes
Aff. at 1. Therefore, Petitioner was "convicted" of an
offense for the purposes of 1128(i)(3). The crucial issue
here, however, is whether the offense for which Petitioner
was convicted was "a criminal offense relating to neglect
or abuse of patients in connection with the delivery of a
health care item or service", as the I.G. alleges and as
required by section 1128(a)(2). As was stated in Vicky L.
Tennant, R.N., DAB Civ. Rem. C-329 (1991) at 7-8:
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).
In this case, Petitioner's conviction does not, on its face
specify that the victim of the battery was a "patient".
However, it is apparent from the facts alleged against
Petitioner in the criminal complaint which was filed
against him that Petitioner's conviction is related to
patient abuse and neglect. As was stated in Vicky L.
Tennant, R.N., DAB Civ. Rem. C-329, (1991) at 9 - 10,
citing Norman C. Barber, D.D.S., DAB Civ. Rem. C-198 (1991)
at 10 - 11:
It is consistent with congressional intent
to admit limited evidence concerning the
facts upon which the conviction was
predicated in order to determine whether
the statutory criteria of section
1128(a)(2) have been satisfied. Congress
could have conditioned imposition of the
exclusion remedy on conviction of criminal
offenses consisting of patient neglect or
abuse. Had it used the term "of" instead
of the term "relating to" in section
1128(a)(2), that intent would have been
apparent. Had Congress done so, then
arguably, no extrinsic evidence would be
permitted to explain the relationship
between the criminal conviction and the
underlying conduct. However, Congress
intended that the exclusion authority under
1128(a)(2) apply to a broader array of
circumstances. It mandated that the
Secretary exclude providers who are
convicted or criminal offenses "relating
to" patient neglect or abuse in connection
with the delivery of a health care item or
service. The question ... is whether the
criminal offense which formed the basis for
the conviction relates to neglect or abuse
of patients, not whether the court
convicted Petitioner of an offense called
"patient abuse" or "patient neglect".
See Dewayne Franzen, DAB App. 1165 (1990) and H. Gene
Blankenship, DAB Civ. Rem. C-67 (1989).
As was held in Tennant, I have the authority to go beyond
the face of Petitioner's conviction in order to make a
determination as to whether the offense to which Petitioner
pled was related to patient neglect or abuse. In this
case, the offense to which Petitioner pled guilty was
battery. It is apparent from the record before me that the
victim of the battery to which Petitioner pled guilty was,
at the time of the offense, a resident patient at the
Shreveport Manor Nursing Home. Petitioner allegedly took
the patient's shoe and hit him repeatedly with it.
Abuse is defined in Webster's New International Dictionary,
1964 Edition, as "to use or treat so as to injure." This
definition accords with the one given by Webster's Ninth
New Collegiate Dictionary, 1983 Edition "improper use or
treatment". From these plain meaning definitions of the
term abuse, the type of treatment that Congress had in mind
is apparent. It is also apparent that Petitioner's offense
falls squarely within that category. The patient was
battered by Petitioner. The offense for which Petitioner
was convicted was the unlawful touching or striking of
another person. The State of Louisiana defines battery as
"the intentional use of force or violence upon the person
of another." LA. REV. STAT. ANN., section 1435.
Therefore, Petitioner was convicted of violent conduct
against the patient, and Petitioner's conviction is
therefore a conviction for an act of patient abuse within
the meaning of section 1128(a)(2).
I find that the act of abuse for which Petitioner was
convicted was an offense committed "in connection with the
delivery of a health care item or service" within the
meaning of section 1128(a)(2). In applying this section
the key phrase is the phrase "in connection with". This
very broad terminology suggests that Congress required only
a minimal nexus between the offense and the delivery of a
health care item or service as a prerequisite to meeting
the statutory test. I conclude that the test is satisfied
where, as in this case, the rendering of a health care item
or service provides some opportunity for the offense to
have occurred. In this case, the test is met because the
victim of Petitioner's offense was a patient at the
facility at which Petitioner was employed, and Petitioner
committed his offense during the course of his employment.
3/
2. Petitioner may not collaterally attack his criminal
conviction in this proceeding.
Petitioner contends that he was falsely accused, that he
never abused any patient at the nursing home, and that he
was not adequately informed of the administrative
repercussions of his plea bargain agreement. Petitioner
also contends that his plea bargain was recommended to him
by his public defender as a way to save time and money, and
that the alleged injuries sustained by the nursing home
patient were in fact the product of some outside cause, and
not the battery charge to which he pleaded guilty.
The I.G. contends that Petitioner cannot collaterally
attack his guilty plea in this proceeding. The I.G.
contends that by accepting Petitioner's guilty plea, the
Louisiana court implicitly found that Petitioner knowingly
and intelligently waived his right to a jury trial, and
more importantly, found that Petitioner was not induced
into the guilty plea by any promises other than those
contained within the plea itself.
Notwithstanding Petitioner's arguments of his innocence, it
is well established that a hearing before an administrative
law judge to challenge the basis for an exclusion may not
be utilized to collaterally attack a State criminal
conviction. Richard G. Philips, D.P.M., DAB Civ. Rem. C-
347 (1991). The mandatory exclusion arises from the fact
of the conviction, not its actual validity. "The law does
not require the Secretary to look behind the conviction to
determine whether it is valid. It is not relevant to the
issue of the I.G.'s authority that the criminal conviction
may have been defective." Philips at 6.
3. The exclusion imposed and directed against Petitioner
is mandated by law.
Sections 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 of five
years, when such individuals and entities have been
convicted of a criminal offense relating to the 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."
Since Petitioner's criminal conviction meets the statutory
requirements of section 1128(a), the I.G. must apply the
minimum mandatory five year exclusion applicable to a
section 1128(a) offense as set forth in section
1128(c)(3)(B). Therefore, I sustain the exclusion imposed
and directed against Petitioner by the I.G.
CONCLUSION
Based on the law and the undisputed material facts in the
record 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)(2)
and 1128(c)(3)(B) of the Social Security Act. Accordingly,
I enter summary disposition in favor of the I.G., sustain-
ing the five-year exclusion which he imposed and directed
against Petitioner.
_________________________
Steven T. Kessel
Administrative Law Judge
1. "State health care program" is defined by section
1128(h) of the Social Security Act to cover three types of
federally-financed health care programs, including
Medicaid. I use the term "Medicaid" hereafter to represent
all State health care programs from which Petitioner was
excluded.
2. The I.G. submitted four numbered and paginated
exhibits in support of his motion for summary disposition.
I have admitted the exhibits into evidence. They will be
referred to as I.G. Ex. (number) at (page). The I.G. also
submitted a brief and supporting affidavit of William J.
Hughes, an I.G. program analyst who has personal knowledge
of this case. The brief will be referred to as I.G. Br.
(page). The affidavit will be referred to as Hughes' Aff.
(page). I have admitted the affidavit into evidence.
Petitioner submitted no documents other than his original
letter, dated June 11, 1991, protesting his exclusion.
Petitioner subsequently resubmitted a copy of his June 11
letter, along with a cover letter. I will refer to the
Petitioner's original letter as Pet. Let. (page).
3. The test under section 1128(a)(2) is different from
that stated in section 1128(a)(1). In order for an offense
to meet the statutory criteria in section 1128(a)(1), that
offense must be "related to" the delivery of an item or
service under Medicare or Medicaid. The phrase "related
to" may suggest a somewhat narrower meaning than the phrase
"in connection with." Furthermore, section 1128(a)(1)
specifically requires a nexus with a Medicare or Medicaid
item or service, whereas section 1128(a)(2) does not
require such a nexus.