Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD
Civil Remedies Division
In the Case of: Patricia McClendon, Petitioner,
- v. -
The Inspector General.
DATE: May 21, 1993
Docket No. C-93-038
Decision No. CR264
DECISION
By letter dated December 11, 1992, Patricia McClendon, the Petitioner herein,
was notified by the
Inspector General (I.G.), U.S. Department of Health & Human Services (HHS),
that it had been decided to
exclude her for a period of five years from participation in the Medicare program
and from participation in
the State health care programs mentioned in section 1128(h) of the Social Security
Act (Act). (I use the
term "Medicaid" in this Decision when referring to the State programs.)
The I.G. explained that the five-
year exclusion was mandatory under sections 1128(a)(2) and 1128(c)(3)(B) of
the Act because Petitioner
had been convicted of a criminal offense related to patient abuse, in connection
with the delivery of health
care.
Petitioner filed a timely request for review of the I.G.'s action, and the
I.G. moved for summary
disposition.
Because I have determined that there are no material and relevant factual issues
in dispute (i.e., the only
matter to be decided is the legal significance of the undisputed facts), I have
granted the I.G.'s motion and
decide the case on the basis of written submissions in lieu of an in-person
hearing.
I affirm the I.G.'s determination to exclude Petitioner from participation
in the Medicare and Medicaid
programs for a period of five years.
APPLICABLE LAW
Sections 1128(a)(2) and 1128(c)(3)(B) of the Act make it mandatory for any
individual who has been
convicted of a criminal offense related to the neglect or abuse of patients,
in connection with the delivery
of a health care item or service, to be excluded from participation in the Medicare
and Medicaid programs
for a period of at least five years.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
1. During the period relevant to this case, Petitioner was a nurse's aide,
employed by the Vicksburg Trace
Haven (VTH), a health care facility participating in the Medicare and Medicaid
programs, located in
Vicksburg, Mississippi. I.G. Exhibits (Ex.) 1 and 2.
2. Petitioner was charged with having committed "abuse and battery"
upon an elderly patient at VTH, by
physically striking such individual on or about September 29, 1991. I.G. Ex.
2.
3. Petitioner entered a plea of nolo contendere (no contest) to "misdemeanor
abuse of a vulnerable adult"
in the Circuit Court of Warren County on July 1, 1992. I.G. Ex. 3.
4. The court accepted the plea and sentenced Petitioner to one year's probation,
court costs, a fine and
assessments. I.G. Ex. 3.
5. The Secretary of Health and Human Services has delegated to the I.G. the
authority to determine and
impose exclusions pursuant to section 1128 of the Act. 48 Fed. Reg. 21662 (1983).
6. Petitioner was "convicted" of abuse, within the meaning of the
mandatory exclusion provisions of the
Act.
7. The individual Petitioner abused had been a "patient" within the
meaning of the mandatory exclusion
provisions of the Act.
8. Petitioner's conviction was related to the delivery of health care, within
the meaning of the mandatory
exclusion provisions of the Act.
9. Mandatory exclusion is invoked by relevant misdemeanor convictions as well
as by convictions for
felonies; Congress was not obliged to make distinctions between classes of criminal
offenses and did not
do so.
PETITIONER'S ARGUMENT
Petitioner contends that a misdemeanor is not a crime and that a statute which
fails to distinguish between a
crime and a misdemeanor is unconstitutionally vague. In the case at hand, she
insists, the exclusion law's
failure to properly define what constitutes a crime and what constitutes a misdemeanor
deprives her of due
process. She maintains also that certain statutory language regarding mandatory
exclusion shows that such
sanction was intended to apply to crimes, but not to misdemeanors.
Petitioner's remaining arguments are that her no contest plea was not an admission
of wrongdoing, and that
she had not received the necessary training and support from her employer to
enable her to deal with
abusive patients.
DISCUSSION
Section 1128(a)(2) of the Act requires, initially, that the person to be excluded
must have been convicted of
an offense. Petitioner herein, a nurse's aide, was convicted of unlawfully abusing,
by doing violence to an
elderly patient of VTH, during the time Petitioner was supposed to be performing
her professional duties
there.
Petitioner pled no contest to the charge. The court accepted the plea and Petitioner
was sentenced. Section
1128(i)(3) of the Act expressly provides that when an individual enters a no
contest plea, and such plea has
been accepted by the court, the individual in question will be considered to
have been "convicted" within
the meaning of the mandatory exclusion provisions of the Act.
Petitioner's assertions that certain statutory language regarding mandatory
exclusion shows that such
sanction was intended to apply to felony crimes, but not to misdemeanors, and
that the exclusion law's
failure to define what constitutes a crime and what constitutes a misdemeanor
deprives her of due process,
are without legal merit. The language to which Petitioner apparently refers
is the subsection caption for
section 1128(a)(1) of the Act, which reads "Conviction of Program-Related
Crimes."
While it is evident that this caption does indeed utilize the word "crimes,"
examination of the full text of
this and related provisions indicates that Congress intended mandatory exclusion
to apply to convictions of
all types and that it recognized no distinction of the sort upon which Petitioner
relies. In Glen E. Bandel,
DAB CR261 (1993), the ALJ expressly held that a misdemeanor conviction is sufficient
to invoke
mandatory exclusion.
Petitioner's contention that the federal statute is defective because it does
not define what shall be
considered a crime, and what a misdemeanor, is also without merit. The mandatory
exclusion law is
derivative in nature, meaning that it requires exclusion when there has been
a relevant conviction by a state
or federal court. It was entirely proper for Congress to decide, as it evidently
did, that all such convictions
should trigger exclusion actions. It was not necessary for Congress to have
attempted to catalogue and
define the myriad variety of criminal offenses and convictions which might be
conceived of by numerous
court systems and legislatures. Moreover, even if there were some merit to the
due process issue raised by
Petitioner, the regulations proscribe me from finding federal statutes invalid.
42 C.F.R. 1005.4(c)(1).
Petitioner's remaining arguments - that her no contest plea was not an admission
of wrongdoing and that
she had not received the necessary training and support from her employer to
enable her to deal with
abusive patients -- are also unavailing. As noted supra, the Act explicitly
provides that the entering of a no
contest plea is sufficient, when the other requirements of section 1128(a)(2)
of the Act also are met, to
warrant mandatory exclusion. Her attempt to shift some of the blame to VTH,
thereby suggesting, by
implication, that she did not mean to harm the patient, is irrelevant. This
is because section 1128(a)(2) of
the Act is always applicable when an appropriate criminal conviction has occurred.
Dewayne Franzen,
DAB 1165 (1990). I am not empowered to look beyond the fact of conviction, and,
indeed, it has been
held that the intent of the individual committing the offense is not a factor
to be considered in imposing a
section 1128(a) exclusion. Summit Health Limited, DAB 1173 (1990); Richard G.
Philips, D.P.M., DAB
CR133 (1991). Thus, the explanations of her conduct advanced by Petitioner do
not affect the outcome of
this case.
Section 1128(a)(2) of the Act requires further that the individual who has
been neglected or abused must
have been a "patient" and that the criminal offense must have been
related to the delivery of health care. In
this regard, the affidavit which was submitted by the State to the Mississippi
court when Petitioner was
charged (I.G. Ex. 2) -- and which was not disputed by Petitioner or her counsel
at the state trial or in the
instant proceeding -- identifies Petitioner's victim as a patient of VTH and
indicates that VTH is a health
care facility. Furthermore, Petitioner's counsel, in her letter requesting a
hearing, confirms also that the
person Petitioner abused had indeed been a patient ("she had not received
the necessary training and
support from her employer to enable her to deal with abusive patients").
As to the last criterion, I conclude that because: 1) the attack took place
in a health care facility where the
victim had been residing as a patient; and 2) the perpetrator was a facility
employee whose duty was to
assist in the care of patients, the conviction was related to the delivery of
health care.
CONCLUSION
Sections 1128(a)(2) and 1128(c)(3)(B) of the Act require that Petitioner be
excluded from the Medicare
and Medicaid programs for a period of at least five years because of her conviction
for patient abuse,
related to the delivery of health care.
The I.G.'s five-year exclusion is, therefore, sustained.
___________________________________
Joseph K. Riotto
Administrative Law Judge