Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD
Civil Remedies Division
In the Case of: Carolyn Westin, Petitioner,
- v. -
The Inspector General.
DATE: August 24, 1992
Docket No. C-391
Decision No. CR229
DECISION
On May 24, 1991, the Inspector General (I.G.) notified Petitioner that she
was being excluded for five
years from participation in the Medicare and any State health care programs.
1/ The I.G. advised Petitioner
that she was being excluded due to her conviction in the District Court, Adams
County, Colorado, of a
criminal offense relating to neglect or abuse of patients in connection with
the delivery of a health care
item or service. The I.G. further advised Petitioner that the exclusion of individuals
convicted of such an
offense is mandated by section 1128(a)(2) of the Social Security Act (Act),
and that section 1128(c)(3)(B)
of the Act provides a minimum five year period of exclusion.
Petitioner requested a hearing on May 30, 1991, and the case was assigned to
me for hearing and decision.
I have considered the exhibits submitted by the I.G., the parties' arguments,
and the applicable law and
regula-tions. 2/ Based on the record before me, I conclude that: 1) the I.G.
has authority to exclude
Petitioner pursuant to section 1128(a)(2) of the Act; and 2) the five year exclusion
imposed by the I.G. is
mandated by law. Therefore, I sustain the exclusion imposed and directed against
Petitioner.
ISSUES
The issues in this case are whether Petitioner:
1) was convicted of a criminal offense;
2) was convicted of a criminal offense relating toneglect or abuse of patients
in connection
with thedelivery of a health care item or service.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
1. Petitioner, a licensed nursing home administrator and a registered nurse,
was, at all times relevant to this
case, the Nursing Home Administrator at Aspen Care Center West (Aspen), a skilled
nursing home. I.G.
Ex. 3/10, 4. 3/
2. As the principal executive officer and administrator at Aspen, Petitioner's
responsibilities included, but
were not limited to, maintaining liaison between the various functional areas
within the facility, personnel
and financial management, and providing a suitable framework for the administration
of patient care.
Petitioner also was responsible for the organization of the facility to carry
out its responsibilities and the
development of appropriate policies for patient care governing the nursing,
medical, and other related
services. I.G. Ex. 3/10.
3. On November 8, 1985, a criminal indictment was returned in the Denver (Colorado)
District Court,
against Petitioner, Victoria Tennant (Vicky L. Tennant), and T & S Leasing,
Inc., DBA Aspen Care Center
West. I.G. Ex. 3.
4. Petitioner was charged with one felony and four misdemeanors. I.G. Ex. 3.
5. On September 25, 1986, all but Counts Two and Four of the Indictment were
dismissed by the Adams
County District Court. This decision was affirmed by the Colorado Supreme Court
on November 23,
1988. I.G. Ex. 5, 6.
6. On February 24, 1989, the Adams County District Court accepted Petitioner's
plea of nolo contendere to
Count Four of the Indictment. Count Two was dismissed. I.G. Ex. 7, 8, 9.
7. Petitioner's plea was entered pursuant to a proposed stipulation for a deferred
judgment and sentence for
a period of one year. The only conditions imposed upon Petitioner were that
she not violate the law and
that she pay court costs if so ordered. If she complied with the terms of the
deferred judgment, the action
against her would be dismissed. I.G. Ex. 7.
8. Count Four of the indictment charged Petitioner with "Willful Disregard
of Colorado Department of
Health Regulation; Section 25-1-114 C.R.S. (1982 Rep Vol) Unclassified Misdemeanor."
I.G. Ex. 3/1.
9. Colorado Department of Health regulations at 6 CCR (Code of Colorado Regulations)
1011-1 Ch. V
section 4.5.4 provide that:
Accidents and incidents resulting in possible
patient injury shall be reported on special report
forms. The report shall include date, time and
place of incident; circumstances of the occurrence,
signature of witness; time the doctor was notified;
physician's report; signature of person making the
report. A copy of report shall be filed in the
patient's medical record.
I.G. Ex. 14.
10. Count Four charged that Petitioner unlawfully and willfully violated and
disobeyed the provisions of
the lawful regulations of the Colorado Department of Health requiring the preparation
and maintenance of
an incident report to document the circumstances surrounding any unusual occurrence
resulting in possible
injury to a patient in a licensed nursing home. I.G. Ex. 3/9.
11. Count Four relates to an incident involving an Aspen resident, L.G., with
advanced Huntington's
Disease. This resident was incapacitated by her illness and dependent on the
help of others for her
survival. She was a "total care patient". She was unable to control
her own bodily movements, needed
help eating and dressing, and was unable to walk or talk. She was mentally incompetent
and engaged in
constant involuntary movements of her arms, legs, and trunk during her waking
hours. I.G. Ex. 3/10, 4.
12. On December 17, 1984, L.G. was found tightly entrapped between the bedrail
and the bedframe of her
bed. Her body was freed from the bed by removing the bedrail. After emergency
resuscitation, L.G. was
airlifted to a hospital. I.G. Ex. 3/11 - 12, 4.
13. After L.G.'s transport, Petitioner and Vicky L. Tennant, the Director of
Nursing at Aspen, advised the
charge nurse that the nurse's note describing the incident did not need to mention
the position in which
L.G. was found. The charge nurse was responsible for preparing an incident report,
which was required by
Department regulation and Aspen internal policy. No incident report was ever
prepared. I.G. Ex. 3/9 - 13,
4.
14. The medical records supervisor, Sharon Wasinger, upon discovering the lack
of an incident report, has
indicated that she told either Petitioner or Vicky L. Tennant that a report
should be prepared. In response,
Ms. Wasinger was told that no incident report was necessary, because "the
incident was not unusual."
Records Consultant Nancy Weber was told by Ms. Wasinger that she advised Vicky
L. Tennant of the need
to file an incident report. P. Ex. 3, 4.
15. Prior to the death of L.G., Aspen's management was aware of the tragic
results that could occur from
the improper care of a Huntington's disease patient and the need to take corrective
action. This is reflected
by the death of V.C., a patient at Aspen, who died of asphyxia in her bed in
similar circumstances to L.G.
Prior knowledge also arose from a Department review of Aspen in the Spring of
1984. During the course
of the review, Petitioner was told that steps had to be taken to protect another
Huntington's disease patient
whose bedding was observed to be unsafe. I.G. Ex. 3/11.
16. Petitioner's plea of nolo contendere constitutes a conviction for the purposes
of section 1128(a)(2) of
the Act. See sections 1128(i)(3) and 1128(i)(4) of the Act.
17. Notwithstanding that Petitioner's plea of nolo contendere was dismissed
nunc pro tunc in March 1990,
Petitioner's plea constituted a conviction of a criminal offense within the
definition of section 1128(i)(3)
and section 1128(i)(4) of the Act.
18. Regulations published on January 29, 1992, establish criteria to be employed
by the I.G. in
determining to impose and direct exclusions pursuant to sections 1128(a)(1)
and (2) and (b) of the Act. 42
C.F.R. Part 1001; 57 Fed. Reg. 3298, 3330 - 3341 (January 29, 1992).
19. The Secretary did not intend that the regulations contained in 42 C.F.R.
Part 1001, and, in particular,
42 C.F.R. 1001.101, govern my decision in this case. However, even if these
regulations did apply, they
are consistent with the manner in which section 1128(a)(2) has previously been
interpreted by the
Departmental Appeals Board, and Petitioner would not be subjected to a different
standard of liability, nor
to an increased sanction.
20. Petitioner was convicted of a criminal offense relating to neglect or abuse
of patients within the
meaning of section 1128(a)(2) of the Act. FFCL 1 - 17.
21. On May 24, 1991, the I.G. excluded Petitioner from participating in Medicare
and directed that she be
excluded from participating in Medicaid, pursuant to section 1128(a)(2) of the
Act.
22. There are no disputed issues of material fact in this case and summary disposition is appropriate
23. The exclusion imposed and directed against Petitioner is for five years,
the minimum mandatory
period for exclusions authorized pursuant to section 1128(a)(2) of the Act.
24. The exclusion imposed and directed against Petitioner by the I.G. is mandated by law.
RATIONALE
On June 7, 1991, I sustained a five year exclusion imposed and directed by
the I.G. against Vicky L.
Tennant (Vicky L. Tennant, DAB CR134 (1991)), Petitioner's co-defendant in the
State action constituting
the basis for the exclusion in this case. 4/ In Tennant, I found that Ms. Tennant's
conviction provided the
I.G. with authority to exclude under section 1128(a)(2) of the Act. The activity
which triggered her
conviction was the failure to report an unusual incident which she, as Director
of Nursing at Aspen, had a
duty to report. I found that this failure to report an unusual incident directly
impacted on the safety and
health of patients under her care and on the State's need to monitor nursing
home conditions to ensure that
the welfare of patients was properly met. I further found that Ms. Tennant's
failure to report constituted
"neglect" within the meaning of section 1128(a)(2) and that the exclusion
imposed and directed against Ms.
Tennant was mandated by law.
After a thorough evaluation of all the evidence presented to me in this case,
I find that the facts of
Petitioner's case are essentially identical to the facts in Tennant. The only
differences between the two
cases are that: 1) Records Consultant Nancy Weber was told, by Medical Records
Supervisor Sharon
Wasinger, that Wasinger had advised Ms. Tennant, but not Petitioner, of the
need to file an incident report
(FFCL 14); and 2) Petitioner, but not Ms. Tennant, was informed, after a Department
review of Aspen in
1984, that steps had to be taken to protect Huntington's disease patients from
unsafe bedding. FFCL 15.
These slight fact variances are not material differences in terms of Petitioner
and Ms. Tennant's liability
under the Act. Petitioner and Ms. Tennant were charged with the same offenses,
pled nolo contendere to
the same offense, and received the same sentence. Petitioner has not offered
any evidence to distinguish
her case from that of Ms. Tennant. The exhibits introduced in this case are
essentially the same exhibits
that were introduced in Tennant. Thus, in these two cases, I am evaluating the
same record. Furthermore,
Petitioner has not presented any evidence which would lead me to conclude that
my decision in the
Tennant case was in any way incorrect or not mandated by law. 5/
Thus, since Petitioner's case is essentially identical to Ms. Tennant's, for
the reasons set forth in my
Tennant decision, I am sustaining 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.
Edward D. Steinman
Administrative Law Judge
1. "State health care program" is defined by section 1128(h) of the
Social Security Act to include any
State plan approved under Title XIX of the Act (such as Medicaid). I use the
term "Medicaid" hereafter to
represent all State health care programs from which Petitioner was excluded.
2. The I.G. filed 14 exhibits (I.G. Ex.) with his brief, accompanied by the
required declaration. These are
admitted into evidence as I.G. Ex. 1 - 14. Petitioner filed no exhibits.
3. The parties' exhibits and memoranda will be referred to as follows:
I.G. Exhibit I.G. Ex. (number/page)
I.G. Brief I.G. Br. (page)
Petitioner Response P. Br. (page)
Brief
I.G. Reply Brief I.G. R. Br. (page)
Petitioner Reply P. R. Br. (page)
Brief
4. I forwarded copies of all Civil Remedies Division decisions with regard to
section 1128(a)(2) to
Petitioner on March 2, 1992, excluding the Tennant decision. This is because,
as of that date, Petitioner
already had a copy of the Tennant decision.
5. Petitioner did not offer any evidence in this case. Petitioner did, however,
make a number of motions.
I ruled on these motions (both in my "Rulings" and in letters prepared
by my office at my direction) on
October 9, 1991, October 16, 1991, October 30, 1991, November 25, 1991, February
24, 1992, March 2,
1992, April 1, 1992, June 12, 1992, and June 29, 1992. I incorporate by reference
in this decision all of my
previous rulings in this case.