Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD
Civil Remedies Division
In the Case of:
Patricia Self,
Petitioner,
- v. -
The Inspector General.
DATE: May 19, 1992
Docket No. C-446
DECISION
On August 20, 1991, the Inspector General (I.G.) notified Petitioner that she
was being excluded from
participation in Medicare and State health care programs. 1/ The I.G. told Petitioner
that she was being
excluded for five years as a result of her conviction in a Louisiana court of
a criminal offense relating to
the neglect or abuse 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 law required that
the minimum period of such an exclusion be for not less than five years.
Petitioner timely requested a hearing as to her exclusion, and the case was
assigned to me for a hearing and
decision. The I.G. moved for summary disposition in this case, to which Petitioner
responded. The parties
were also given the opportunity to brief the question of what, if any, effect,
the regulations recently
promulgated at 57 Fed. Reg. 3298 (January 29, 1992), may have on the outcome
of this case, but declined
to do so. 2/ Based on the evidence submitted, and on applicable law, I conclude
that the I.G. was required
to exclude Petitioner from participating in Medicare and Medicaid for at least
five years. Therefore, I
sustain the five-year exclusion which the I.G. imposed and directed against
Petitioner.
ISSUE
The issue in this case is whether Petitioner was convicted of a criminal offense
relating to the neglect or
abuse of a patient, within the meaning of section
1128(a)(2) of the Act.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
1. At all times relevant to this case and until July 2, 1990, Petitioner was
a nurse's aide at the Harvest
Manor Nursing Home, Denham Springs, Louisiana. I.G. Ex. E, G; P. Br. 1. 3/
2. On May 7, 1991, Petitioner was charged with the offense of simple battery
in violation of Article R.S.
14:35 of the Louisiana Criminal Code, allegedly by committing a battery upon
Mary Whelihan, a patient at
the Harvest Manor Nursing Home. I.G. Ex. A, D, E, F, G. 4/
3. On May 7, 1991, Petitioner pled nolo contendere to the criminal charge which
had been filed against her
in the Twenty-First Judicial District Court, Livingston Parish, Louisiana. I.G.
Ex. B.
4. Petitioner was sentenced to serve 90 days in the parish jail (suspended),
and placed on unsupervised
bench probation for two years, with the special condition that Petitioner have
no contact with her victim.
Petitioner was also fined $250 and court costs. I.G. Ex. B.
5. Petitioner's duties as a nurse's aide at the Harvest Manor Nursing Home
included providing care to
patients at that facility. I.G. Ex. E, F, G.
6. The criminal charge against Petitioner was based in part on Petitioner's
admission that, on June 29,
1990, while she was in Ms. Whelihan's room to perform duties related to Ms.
Whelihan's care, she was
involved in an altercation with Ms. Whelihan. I.G. Ex. G.
7. Petitioner admitted that, during the altercation with Ms. Whelihan, she
struck Ms. Whelihan with an
extension cord and removed Ms. Whelihan's hand from her shirt when Ms. Whelihan
grabbed her. I.G. Ex.
G.
8. The Act defines a `conviction' of a criminal offense to include a conviction
of a misdemeanor or a
felony. Social Security Act, section 1128(i).
9. Petitioner was convicted of a criminal offense within the meaning of section
1128(i) of the Act. FFCL
3.
10. Petitioner was convicted of a criminal offense relating to 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. FFCL 1 - 9.
11. The minimum mandatory exclusion period is five years for an individual
who has been convicted of a
criminal offense relating to abuse of patients in connection with the delivery
of a health care item or
service. Social Security Act, sections 1128(a)(2), and (c)(3)(B).
12. The Secretary of the United States Department 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 Act. 48 Fed. Reg. 21661 (May 13, 1983).
13. On August 9, 1991, the I.G. excluded Petitioner from participating in the
Medicare program, and
directed that she be excluded from participating in Medicaid, for five years,
pursuant to section 1128(a)(2)
of the Act.
14. There are no disputed issues of material fact in this case and summary disposition is appropriate.
15. The exclusion imposed and directed against Petitioner by the I.G. is for
five years, the minimum
period required for exclusions pursuant to section 1128(a)(2) of the Act.
16. The exclusion imposed and directed against Petitioner by the I.G. is mandated
by law. Social Security
Act, sections 1128(a)(2) and (c)(3)(B).
ANALYSIS
Petitioner was employed as a nurse's aide at Harvest Manor Nursing Home in
Denham Springs, Louisiana.
Her duties included providing care for residents at that facility. On May 7,
1991, Petitioner pled nolo
contendere to a plea of simple battery. The criminal charge against Petitioner,
and her plea of nolo
contendere, resulted from allegations that, in the course of performing her
nurse's aide duties, Petitioner
had assaulted a patient at the Harvest Manor Nursing Home. Specifically, it
was alleged that Petitioner had
become involved in an altercation with the patient while setting up a screen
in the patient's room. It was
alleged that, during the course of this altercation, Petitioner forcefully grabbed
the patient by the wrist and
struck the patient with an electrical cord. 5/
The I.G. imposed and directed an exclusion against Petitioner, pursuant to
section 1128(a)(2) of the Act.
This section mandates the exclusion of any party who is convicted of a criminal
offense relating to neglect
or abuse of patients in connection with the delivery of a health care item or
service. 6/ The I.G. excluded
Petitioner for a period of five years. This is the minimum period mandated by
section 1128(c)(3)(B) of the
Act for parties who are convicted of criminal offenses as defined by section
1128(a)(2).
Petitioner argues that the I.G. has not proven that he had authority to exclude
Petitioner pursuant to section
1128(a)(2). She contends, first, that under Louisiana law, a conviction for
simple battery is not a
conviction of "abuse." Therefore, according to Petitioner, her conviction
was not of an offense within the
meaning of section 1128(a)(2) of the Act. Quoting from State v. Schench, 513
So.2d 1159, Petitioner
asserts that, under Louisiana law, the "[e]ssential element of battery
is physical contact, whether injurious,
or merely offensive, and may be committed by touching another through clothing."
Petitioner asserts that
there was no allegation of neglect or abuse in the criminal proceedings against
her. Thus, Petitioner argues
that her conduct does not rise to the level of conduct the mandatory exclusion
provisions of section
1128(a)(2) were supposed to include, i.e. the protection of program beneficiaries
and recipients from
incompetent or abusive individuals who provide inappropriate or inadequate treatment,
care, or services.
Second, Petitioner contends there are disputed issues of fact which operate
to preclude a summary
disposition in favor of the I.G. She asserts that the facts of this case do
not prove that she was convicted of
an offense relating to patient neglect or abuse. She argues that the State investigator's
and other reports
upon which the criminal charges against her were based are hearsay or otherwise
unreliable evidence.
Petitioner denies that she engaged in the conduct for which she was charged.
She argues that her plea of
nolo contendere does not amount to an admission of culpability. Petitioner asserts
that, inasmuch as she is
contesting the truth of the allegations which underlie the criminal charges
filed against her and to which
she pleaded, she should be provided a full evidentiary hearing as to those charges.
I conclude that the offense of which Petitioner was convicted related to the
abuse of a patient in connection
with the delivery of a health care item or service, as is proscribed by section
1128(a)(2) of the Act. I find
further that there are no disputed material facts in this case which would bar
entry of summary disposition
in favor of the I.G. Janet Wallace, L.P.N., DAB 1326 (1992) (Wallace). Therefore,
I enter summary
disposition in favor of the I.G., sustaining the five-year exclusion which the
I.G. imposed and directed
against Petitioner.
Four statutory requirements must be satisfied in order for the I.G. to have
authority to impose an exclusion
under section 1128(a)(2) of the Act. Petitioner must have been: 1) convicted
of a criminal offense; 2)
relating to neglect or abuse; 3) of patients; 4) in connection with the delivery
of a health care item or
service. Wallace, DAB 1326 at 7; Norman C. Barber, D.D.S., DAB CR123 at 8 (1991)
(Barber).
The first criterion, that Petitioner must be convicted of a criminal offense,
is satisfied in this case by
Petitioner's nolo contendere plea to criminal charges and the Louisiana court's
acceptance of that plea. The
Act's definition of a "conviction" includes the acceptance by a court
of a party's plea of nolo contendere.
Social Security Act, section 1128(i)(3). The Act does not differentiate between
convictions for felonies
and misdemeanors. Thus, any conviction is a conviction for the purposes of the
Act. In this case,
Petitioner entered a plea of nolo contendere to the criminal offense of simple
battery and the court accepted
her plea. FFCL 3.
To satisfy the second criterion, Petitioner's conviction must relate to an
act of neglect or abuse. A
conviction need not be for an offense called patient neglect or abuse, it need
only "relate" to neglect or
abuse. Bruce Lindberg, D.C., DAB 1280 at 4 (1991). Thus, the second criterion
will be satisfied in cases
where a party is convicted of an offense based on charges of neglectful or abusive
conduct even if the
crime of which that party is convicted is not specifically labeled "neglect"
or "abuse." That criterion is
satisfied here based on Petitioner's nolo contendere plea to a criminal charge
which was based on
allegations of abusive conduct towards a resident at the Harvest Manor Nursing
Home.
The Act does not define the term "abuse." In Thomas M. Cook, DAB
CR51 (1989), I gave the term
"abuse" its common and ordinary meaning by utilizing the dictionary
definition, "to use or treat so as to
injure, hurt or damage; MALTREAT . . .", and I further stated that abuse
was intended, "to include those
situations where a party willfully mistreats another person." See, Wallace,
DAB 1326 at 10. Wrongfully
striking or restraining another individual constitutes mistreatment of that
individual.
A physical assault against an individual therefore plainly falls within the
common and ordinary meaning of
the term "abuse."
Petitioner is correct in her assertion that the offense of which she was convicted,
simple battery, does not
necessarily entail abusive conduct. However, it is apparent that the criminal
charges against Petitioner
emanated from allegations of abusive conduct. That is apparent from the investigator's
report on which the
criminal charges were based.
Extrinsic evidence relevant to the nature of the charges against a party, and
the offense of which that party
was convicted, is admissible to establish that section 1128(a)(2) applies in
a particular case. Lindberg,
DAB 1280 at 3. It is consistent with congressional intent to admit evidence
which explains the
circumstances of the offense of which a party is convicted. Thus, I must examine
all relevant facts to
determine if there is a relationship between the Petitioner's criminal offense
and neglect or abuse.
Here, the evidence establishes that the criminal charges against Petitioner
emanated from allegations that
she had assaulted a resident at the Harvest Manor Nursing Home. There is no
evidence to show that the
charge resulted from other allegations. Thus, there is a clear nexus between
Petitioner's conviction and
allegations of abusive conduct.
Petitioner asserts, however, that the facts on which the criminal charges and
her conviction are based are
not true. She asserts that she should be provided with the opportunity to present
evidence that these
allegations are not true. Petitioner appears to be arguing that, if in fact
the allegations are not substantiated,
she would not stand convicted of abuse of a patient.
I disagree with Petitioner's contention. The issue before me is not whether
Petitioner abused another
individual, but whether Petitioner was convicted of an offense related to abuse.
The I.G.'s authority to
impose and direct an exclusion under section 1128(a)(2) of the Act emanates
from that conviction and not
from Petitioner's actual guilt or innocence of the criminal charges filed against
her. Bernardo G. Bilang,
M.D., DAB 1295 at 7 - 8 (1992); Christino Enriquez, M.D., DAB CR119 at 11 -
12 (1991). That test is
satisfied by evidence which establishes the nature of the charges to which Petitioner
pleaded.
Extrinsic evidence is also relevant to establish whether Petitioner's conviction
of abuse: 1) involved a
patient or patients; and 2) was in connection with the delivery of a health
care item or service. Barber,
DAB CR123 at 11; Cook, DAB CR51 at 5 - 6; Lindberg, DAB 1280. As with evidence
relevant to
whether the offense concerned abuse, evidence as to these last two criteria
is relevant to establishing the
basis for the charges against Petitioner. It is not necessary to establish that
the charges against Petitioner
are true, or that the facts on which the charges were based are true, in order
to decide whether Petitioner's
offense related to patients in connection with the delivery of a health care
item or service.
The evidence on which I have relied to decide the circumstances of Petitioner's
conviction consists of the
State investigator's summaries and Petitioner's own written statement with respect
to the incident, in which
she admits to striking Ms. Whelihan. 7/ This evidence establishes that the charges
involving Petitioner
emanated from an incident involving a patient and the delivery of a health care
item or service.
Ms. Whelihan was a resident at the Harvest Manor Nursing Home. She was receiving
health care services
at the nursing home in connection with her stay at that facility. Therefore,
she was a "patient" within the
meaning of the Act.
Petitioner was a nurse's aide providing nursing care for patients of Harvest
Manor Nursing Home. The
duties of a nurse's aide include the general care of patients. I.G. Ex. F. These
duties are services which are
necessary and incidental to medically-related stays in a nursing home, and so
are related to a health care
item or service. The allegations of abuse relate to Petitioner's performance
of her duties at the Harvest
Manor Nursing Home, and in particular to her providing services to the patient
whom she was alleged to
have assaulted. Thus, Petitioner's conviction involved abuse in connection with
the delivery of a health
care item or service.
CONCLUSION
Based on the material facts and the law, I conclude that the I.G.'s determination
to exclude Petitioner from
Medicare, and to direct that Petitioner be excluded from participation in Medicaid,
for five years, was
mandated by law. Therefore, I am entering a decision in favor of the I.G. in
this case. The five-year
exclusion imposed and directed against Petitioner is sustained.
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 is excluded.
2. The dispositive issue in this case is whether Petitioner was convicted of
a criminal offense within the
meaning of section 1128(a)(2) of the Act. The new regulations do not state or
suggest that the Secretary
intends that section 1128(a)(2) be applied in a way other than that which would
be directed by its plain
meaning.
3. The parties' exhibits and briefs will be referred to as follows:
I.G.'s Exhibits I.G. Ex. (letter/page)
I.G.'s Brief I.G. Br. (page)
Petitioner's Brief P. Br. (page)
4. The charges filed against Petitioner which form the basis for her conviction
allege that she committed a
battery upon Mary "Whelidan". The other exhibits in this case (I.G.
Exs. D, E, F, G), and Petitioner's brief,
refer to Mary "Whelihan". For the purposes of this proceeding, I find
that Mary Whelidan and Mary
Whelihan are one and the same person. I will refer to this person in this decision
as "Ms. Whelihan."
5. The State investigator summarized information gained during an interview
with an eyewitness, nurse's
aide Donahue, that on June 29, 1990, she and Petitioner entered Ms. Whelihan's
room to put a "screen" in
front of Ms. Whelihan's bed. Ms. Whelihan was agitated and cursing at Petitioner.
Ms. Whelihan knocked
the screen down and Petitioner got a "lamp cord" and began to strike
Ms. Whelihan on her arms, hands and
other parts of her body. While Petitioner was striking Ms. Whelihan, "Whelihan
was calling Petitioner
names and crying out for . . . [Petitioner] to stop." Petitioner allegedly
grabbed Ms. Whelihan's hand and
bent it back. Petitioner allegedly also cursed Ms. Whelihan. I.G. Ex. F.
6. The legislative history of section 1128(a)(2) reflects Congressional concern
that the Secretary have
authority to protect program beneficiaries and recipients from individuals who
have been convicted of
offenses which the Secretary concludes entailed or resulted in neglect or abuse
of patients, and whose
continued participation in the programs would constitute a risk to the health
and safety of patients in those
programs. S. Rep. No. 109, 100th Cong., 1st Sess. 6, reprinted in 1987 U.S.
Code Cong. & Admin. News,
686 - 687.
7. I do not utilize this extrinsic evidence to prove whether or not Petitioner
is guilty of the offense of
simple battery. Petitioner has already pled guilty to that offense. I utilize
this evidence only to explain the
circumstances surrounding Petitioner's plea and to ascertain whether or not
it relates to an excludable
offense under section 1128(a)(2) of the Act.