Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD
Civil Remedies Division
In the Case of: Glen E. Bandel, Petitioner,
- v. -
The Inspector General.
DATE: May 6, 1993
Docket No. C-93-033
Decision No. CR261
DECISION
The case has come to me on the request for hearing timely filed by Glen E.
Bandel ("Petitioner") under 42
C.F.R. 1005.2 (1992). Petitioner takes issue with the Inspector General's (I.G.'s)
determination under
section 1128(a)(2) of the Social Security Act ("Act") that he should
be excluded from participating in the
Medicare and various federally funded State health care programs 1/ for a period
of five years due to his
conviction for a criminal offense related to the neglect or abuse of patients
in connection with the delivery
of a health care item or service. Petitioner was notified of the exclusion by
letter from the I.G. dated
November 20, 1992, and the exclusion is currently in effect.
On January 7, 1993, I held a prehearing conference with the I.G.'s counsel
and Petitioner, who was pro se.
At that time, the parties indicated their wish to seek summary disposition in
this case. Accordingly, a
briefing schedule was established and confirmed in the January 15, 1993 Prehearing
Order and Schedule
for Filing Submissions for Summary Disposition. The parties have complied with
the scheduling order
with their briefs and exhibits in support. 2/
In deciding the case, I reviewed principally the various jurisdictional documents
filed by Petitioner; the
I.G.'s Motion for Summary Disposition with Memorandum in Support ("I.G.
Memo."); the nine exhibits
("I.G. Ex.") appended to the I.G.'s Memorandum in Support; Petitioner's
Response to the Inspector
General's Motion for Summary Disposition ("P. Resp."); the nine exhibits
("P. Ex.") appended to
Petitioner's brief; and the reply brief from the I.G. The parties have not specifically
objected to the
authenticity, reliability, or materiality of each other's exhibits. Their disagreements
pertain to the weight
and legal significance of the exhibits.
I have reviewed all of the appended exhibits in the context of the parties'
respective motions for summary
disposition. Despite some duplications in the exhibits and some problems with
materiality in certain
portions of individual exhibits, they relate as a whole to the substance of
the parties' respective briefs, and
the parties have cited them in the briefs with use of their current numbers.
To cull out the partial
duplications and eliminate the immaterial portions of otherwise relevant exhibits
from this record may
undercut the clarity of the parties' positions. Therefore, I have excluded no
proffered evidence from the
record on which I now issue this summary disposition decision.
Based on the undisputed facts of this case material to section 1128(a)(2),
I find that I must uphold the five-
year exclusion despite my personal sympathy for Petitioner's circumstances.
ISSUE
The only issue in this case is whether the I.G. had a basis for imposing the
exclusion under section
1128(a)(2) of the Act. 42 C.F.R. 1001.2007(a)(2) (1992). Under this issue, I
must resolve the following
questions:
a. whether Petitioner was "convicted" of a criminal offense; and
b. if so, whether Petitioner's conviction was related to neglect or abuse
of patients and in connection
with the delivery of a health care item or service.
Where the foregoing statutory conditions have been met, the I.G. has the basis
for imposing an exclusion,
and the Act requires him to impose an exclusion lasting not less than five years.
Therefore, Petitioner, who
received the minimum five-year exclusion, cannot challenge the length of his
exclusion.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
1. During the time period relevant to these proceedings, Petitioner was the
administrator at the
Americana Health Care Center. I.G. Exs. 1, 2.
2. On October 24, 1991, the State of Iowa filed a Complaint (Docket No. 74596)
under section
235B.1(7) of the Iowa Code (1991) charging Petitioner, as the head of an institution
within the meaning of
said law, with failure to report to the State on or about "April 31 [sic],
1991," the suspected abuse of a
dependent adult that had been personally reported to him by staff members or
employees of his institution.
P. Ex. 7 at 2; I.G. Ex. 4.
3. Also on October 24, 1991, the State of Iowa filed another Complaint (Docket
No. 74597) charging
Petitioner with the same violation under the same circumstances for his failure
to report to the State on or
about March 31, 1991, suspected abuse of a dependent adult. P. Ex. 7 at 4; I.G.
Ex. 4.
4. The violations alleged in both Complaints constituted simple misdemeanors
under Iowa law. P. Ex. 7
at 2, 4.
5. On December 16, 1991, Petitioner pled guilty to the charge specified in
Docket No. 74596
concerning his failure to have made a report to the State on or about "April
31, 1991." P. Ex. 7; I.G. Ex. 7.
6. The court accepted Petitioner's plea of guilty in Docket No. 74596. Id.
7. The charge contained in Docket No. 74597, concerning Petitioner's alleged
failure to have made a
report to the State on or about March 31, 1991, was dismissed. Id.; see also
copy of document containing
the State's motion to dismiss and the court's granting of said motion appended
to Petitioner's Hearing
Request.
8. Petitioner was convicted of a criminal offense, within the meaning of section
1128(i) of the Act.
Findings 2 - 6.
9. Petitioner's conviction was in connection with the delivery of a health
care item or service, within the
meaning of section 1128(a)(2) of the Act. Section 235B.1 of the Iowa Code.
10. Petitioner's conviction is not related to the abuse of patients, within
the meaning of section 1128(a)(2)
of the Act. Findings 2 - 6, 9.
11. Petitioner was convicted of a criminal offense relating to neglect of patients,
within the meaning of
section 1128(a)(2) of the Act. Findings 2 - 6, 8, 9. Section 235B.1 of the Iowa
Code.
12. The Secretary of Health and Human Services has delegated to the I.G. the
authority to determine,
impose, and direct exclusions pursuant to section 1128 of the Act. 48 Fed. Reg.
21,662 (1983).
13. By notice letter dated November 20, 1992, the I.G. had excluded Petitioner
from participating in
the Medicare and Medicaid Programs for five years pursuant to section 1128(a)(2)
of the Act.
14. Summary disposition is appropriate in this case because there exists no
disputed issue of material
fact.
15. The five-year exclusion imposed and directed against Petitioner by the
I.G. is for the minimum
period required by section 1128(a)(2) of the Act. Social Security Act, section
1128(c)(3)(B).
16. The exclusion imposed and directed by the I.G. against Petitioner is in
accordance with the
mandates of the Act. Social Security Act, sections 1128(a)(2) and 1128(c)(3)(B).
DISCUSSION
A. Petitioner was Convicted within the Meaning of the Act.
For purposes of the Act, "convicted" includes "when a plea of
guilty or nolo contendere by the individual
or entity has been accepted by a Federal, State, or local court . . . ."
Section 1128(i)(3) of the Act.
Petitioner had been charged with having failed to report suspected adult abuse
under Iowa law in two
cases, Docket Nos. 74596 and 74597. P. Ex. 7. Petitioner was convicted within
the meaning of section
1128 when he pled guilty on December 16, 1991 to the charge contained in Docket
No. 74596, and his plea
was accepted by a court of competent jurisdiction in Cerro Gordo County, Iowa.
I.G. Ex. 7. 3/ Petitioner's
focus on the absence of trial in advance of his guilty plea does not negate
the statutory definition of
"conviction." The statute gives several alternative definitions for
"conviction," including a finding of
guilty by a court after trial (section 1128(i)(2)), as well as a plea of guilty
that has been accepted by a court
without trial. Section 1128(i)(3).
Petitioner has noted that the offense to which he pled guilty was a simple
misdemeanor. P. Resp. at 3.
However, simple misdemeanor is a form of criminal offense. Since section 1128(a)(2)
does not specify a
criminal offense of a particular grade, the I.G.'s authority to exclude Petitioner
is not affected by the fact
that the offense was a simple misdemeanor.
I sympathized with Petitioner's feelings as he criticized the process by which
he was convicted. Petitioner
said that he had followed the advice of counsel in pleading guilty to Docket
No. 74596. P. Resp. at 3. He
said he had not put on evidence in his own defense, and he was not supposed
to know the names of the
alleged victims of suspected abuse in advance of his trial. Hearing Request
at 1 - 2. 4/ The pre-July 1,
1991 Iowa Code required the head of a health care institute to relay a health
care practitioner's reasonable
suspicions of dependent adult abuse without regard for whether he (the institution's
head) shared in such
suspicions or believed them reasonable. I.G. Ex. 4; see also Complaints at P.
Ex. 7. 5/ Petitioner believes
that the State's training tapes instructed him to make his own assessment concerning
the existence of a
reasonable basis for suspecting abuse before filing a report. 6/ Petitioner
said that he thought he had acted
lawfully by failing to file a report with the State because his independent
investigation revealed no
reasonable basis for suspecting adult abuse. P. Resp. at 4, 5; I.G. Ex. 2.
Nevertheless, Petitioner's having pled guilty and having been convicted within
the meaning of section
1128(i)(3) of the Act now bind me to the fact of his conviction for purposes
of adjudicating his current
exclusion. See Peter J. Edmonson, DAB 1330, at 4 (1992). I am not authorized
to decide his guilt or
innocence on the State's charge, and I cannot invalidate or find deficient any
State's rules of procedure in
federal exclusion cases. Nor can I allow Petitioner to collaterally attack his
conviction in the proceedings
before me. 42 C.F.R. 1001.2007(d) (1992). Petitioner must look to his State
remedies if he wishes to set
aside the conviction that underlies his present exclusion under section 1128(a)(2)
of the Act.
B. Petitioner's Conviction was in Connection with the Delivery of a Health Care
Item or Service.
Petitioner was the administrator of Americana Health Care Center in Mason City,
Iowa, from June 29,
1986 until June 24, 1991. I.G. Ex. 2 at 1. According to the court documents
already discussed, Petitioner
pled guilty to having failed on or about "April 31, 1991," to report
the suspected adult abuse which had
been "reported to him as the person in charge of the facility . . . ."
P. Ex. 7 at 2. Nothing in the parties'
arguments and documentary submissions leaves any doubt that Americana Health
Care Center was in the
business of providing health care services to its residents during the entire
period Petitioner was its
administrator. Even though the record before me does not directly establish
the identity or status of the
victim of suspected abuse in the case to which Petitioner had pled guilty, 7/
I can reasonably conclude from
the elements of the State law used to convict him that the victim of suspected
abuse was at Americana
Health Care Center for the receipt of health care items or services.
The Iowa law under which Petitioner was convicted had imposed a reporting duty
on any "health
practitioner who examines, attends, or treats a dependent adult," any "member
of the staff of a hospital or
similar institution" who is such a "health practitioner," and
any "person in charge of the institution" where
such a "health practitioner" is on staff. Section 235.B.1(7)(a). The
Iowa law, by its clear terms, regulated
the actions of those who delivered health care services. The subject of the
law's protection were
"dependent adults," who were defined as those unable to protect their
own interests or unable to adequately
perform or obtain the services necessary to meet their essential human needs
"as a result of a physical or
mental condition which requires assistance from another. . . ." Section
235B.1(3); I.G. Ex. 4. Since
Petitioner had pled guilty to a charge of "failure to report suspected
adult abuse" under said law in his
capacity as "the person in charge of the facility" (P. Ex. 7 at 2),
I can conclude only that -- even without
knowing the identity of the victim of suspected abuse and without having direct
proof that he/she was a
resident at Americana Health Care Center -- Petitioner's conviction was "in
connection with the delivery of
health care item or service" as required by section 1128(a)(2) of the Act.
C. Petitioner's Conviction was Unrelated to the Abuse of Patients.
Petitioner argued that there is no evidence of harm to any nursing home resident.
P. Resp. at 6, 7. I agree,
and thus I conclude that Petitioner's conviction was not related to patient
abuse.
Section 1128(a)(2) specifies a conviction "relating to the . . . abuse
of patients" whereas Petitioner's
conviction relates to suspected abuse of a patient. In our system of laws, the
modifier "suspected" is
significant and is controlling on whether the individual should be excluded
for reasons of patient abuse.
Like the plain language of the statute itself, the agency's implementing regulations
also emphasize the
actual occurrence of some event that constitutes abuse. Offenses "related
to the . . . abuse of patients"
specifically include, for the agency, those that "entailed, or resulted
in . . . abuse of patients." 42 C.F.R.
1001.101(b) (1992). Nothing in the statute or the regulations suggests that
an individual should be
excluded for a conviction of a criminal offense "related to the . . . abuse
of patients" where, as here, no
abuse has been proven, no abuse victim has been established, no suspected perpetrator
has been charged,
and Petitioner was not even the one who suspected that any patient had been
abused. Petitioner was simply
the one who had failed to pass on to the State someone else's suspicion. Moreover,
the elements of the
criminal offense under which Petitioner was convicted did not require the existence
of an actual crime of
patient abuse; it just required that a health care provider had to have suspected
it and reported it to an
individual in Petitioner's position, who was under a statutory duty to relate
it to the State but failed to do so.
D. Petitioner's Conviction was Related to Neglect of Patients.
I conclude, however, that the offense for which Petitioner was convicted is
related to the neglect of patients
within the meaning of section 1128(a)(2) of the Act. I do so only on the basis
of the statutory duty that the
Iowa legislature had placed on him as the head of an institution that was providing
health care to those who
were unable adequately to care for their own essential human needs or protect
their own interests. See
section 235B.1 of Iowa Code. Again, for reasons already noted, I do not associate
Petitioner's neglect with
any patient specifically identified by the I.G.
Each state has the right to regulate the health care services that are delivered
within its own borders and to
protect the safety of its dependent adult citizens. The State of Iowa had chosen
to impose certain reporting
duties on health care providers and heads of institutions as a part of the health
care that they must deliver to
dependent adult patients. I take judicial notice that the delivery of health
care services, especially to
dependent adults residing in long-term nursing facilities, entails the dispensing
of what is tangible as well
as the safeguarding of the patients' safety and well-being. By virtue of their
status, dependent adult patients
have a need for others to be vigilant so that actions may be taken on behalf
of the patient. The law
Petitioner violated reflected, among other things, the State's determination
of how health care institutions
must care for their dependent adult patients' safety and well-being.
Iowa chose to have its own investigators determine whether health care providers'
suspicions of abuse are
founded. That is why it imposed a duty on heads of institutions to pass on reports
of suspected abuse
instead of authorizing the heads of institutions to conduct their own investigations
in lieu of making a
report to the State. In failing to comply with the mandatory reporting requirements
of the law, Petitioner
neglected a dependent adult patient's right to certain specific aspects of care
especially recognized and
required by law. For these reasons, Petitioner's conviction is related to patient
neglect.
I am mindful that Petitioner said he had conducted his own investigations when
suspicions of abuse were
made known to him, and he said he had found the others' suspicions unfounded.
E.g., I.G. Ex. 2. His
statements suggest that he was trying not to be neglectful of his patients'
care. Such intentions are
commendable, and Petitioner's omission might not relate to patient neglect in
jurisdictions without laws
similar to Iowa's section 235B.1(7). However, Iowa law controls here in determining
what is related to the
neglect of patients within its own boundaries. The federal exclusion at issue
is wholly derivative of the
State conviction. The wisdom and benefit of what Petitioner did instead of filing
a report with the State are
beyond the scope of this adjudication.
CONCLUSION
For the foregoing reasons, I have concluded that there exists no genuine issue
of fact on the sole issue
before me: whether the I.G. had authority to impose the five- year exclusion
mandated by law due to a
conviction for a criminal offense related to patient abuse or neglect in the
delivery of health care services
or items. The record before me contains all the facts necessary for resolving
this issue. Petitioner, who
opposed the I.G.'s motion and asked that his exclusion be set aside, created
no legally cognizable issues of
law or fact that would entitle him to prevail even when the evidence was viewed
in a light most favorable
to him. Petitioner's professionalism in his own representation has persuaded
me that the record he helped
create does not lack for other information that may be favorable to his position.
Consequently, I see no
legitimate interest that can be served by proceeding to an in-person hearing.
I find that the I.G. is entitled
to summary judgment as a matter of law.
____________________________
Mimi Hwang Leahy
Administrative Law Judge
1. Section 1128(h) of the Act identifies the various types of State health care
plans that receive federal
funding and are affected by the exclusion. The Medicaid program, which receives
federal funding under
Title XIX of the Act, will be used as an abbreviation for all such affected
programs.
2. Petitioner has not filed a document entitled a motion. However, inasmuch
as Petitioner's brief has
asked that the exclusion be overruled (Petitioner's Response at 10) and given
his reasons in support, I
construe his efforts as the equivalent of a motion within the meaning of 42
C.F.R. 1005.13(a) (1992).
3. Also appended to Petitioner's Hearing Request was a copy of another court
document showing that
Petitioner had pled guilty to the charge in Docket No. 74596 and that the court
had ordered the dismissal of
the charge in Docket No. 74597.
4. This contention is supported by P. Ex. 7, which shows that the State filed
Complaints for Docket Nos.
74596 and 74597 on October 24, 1991 with the names of the alleged victims deleted
in compliance with
Iowa privacy laws. The docket sheet for these cases shows that only the October
24, 1991 Complaints (i.e.,
the ones without the alleged victims' names) had been served on Petitioner.
I.G. Ex. 7. Petitioner said in
his Hearing Request that he found out the identities of the individuals due
to the State's poor "white-out"
efforts on his copy (Hearing Request at 2), although he has not said whose names
he saw on his copy.
5. Petitioner was convicted under section 235B.1 (7)(a) of the Iowa Code as
it existed prior to July 1,
1991. The date of the offense for Docket No. 74596, the case to which he pled
guilty, is "April 31, 1991."
P. Ex. 7 at 2. The version of section 235B.1 that was effective until July 1,
1991 imposed the following
duties:
A health practitioner . . . who examines, attends, or treats a dependent adult
and who reasonably
believes the dependent adult has suffered dependent adult abuse, shall report
the suspected abuse to the
department of human services. If the health practitioner examines, attends,
or treats the dependent adult as
a member of the staff of a hospital or similar institution, the health practitioner
shall immediately notify the
person in charge of the institution . . . and the person in charge . . . shall
make the report.
6. The summary of the videotape stated, for example:
As mandatory reporters . . . [w]e need to be aware of all the signs that have
been given in other areas of
this tape and just watch for them. If we see something that we think substantiates
abuse or looks like its
[sic] suspicious then we need to call in the investigators and have them do
the investigating.
P. Ex. 2 at 2.
As soon as you become suspicious or as soon as you become certain that you
need to make a report,
telephone the DHS.
Id. at 3.
7. The I.G. submitted a copy of a Complaint containing the name of a victim
of suspected abuse at
Petitioner's facility (I.G. Ex. 7 at 1) for the contention that Petitioner had
pled guilty for having failed to
report the suspected abuse of that patient at his facility. I.G. Memo. at 3.
There is inadequate evidence to
support the I.G.'s conclusions. The I.G.'s version of the Complaint containing
the victim's name does not
give any indication that it was filed in court, and it does not contain Docket
No. 74596. I.G. Ex. 5 at 1.
Nor does the court's docket sheet for No. 74596 show that such a Complaint was
filed. I.G. Ex. 7. The
court's docket sheet shows that the Complaint was filed on October 24, 1991,
and only said Complaint was
served. Id. The October 24, 1991 Complaint that was filed and served in Docket
No. 74596 is different
from the I.G.'s version; the former contains no name of any alleged victim but
does show the date of the
alleged occurrence, which had been left blank in the I.G.'s version. P. Ex.
7 at 2; I.G. Ex. 5 at 1. Similarly,
the undated report from the Iowa Department of Inspections and Appeals (I.G.
Ex. 1 at 1) does not require
the conclusion that Petitioner had been charged in accordance with the report's
recommendation to use the
named patient's suspected abuse as a basis for the complaint.