Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD
Civil Remedies Division
In the Case of: Gloria Phillips, Petitioner,
- v. -
The Inspector General.
DATE: July 21, 1993
Docket No. C-93-051
Decision No. CR277
DECISION
By letter dated January 12, 1993, Gloria Phillips, 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 relating to neglect or abuse of patients
in connection with the delivery
of a health care item or service.
Petitioner filed a timely request for review of the I.G.'s action, and the
I.G. moved for summary
disposition. Petitioner was expressly afforded the opportunity to submit argument
and evidence in support
of her position, but she did neither. Thus, the I.G.'s case is, essentially,
undisputed.
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
decided 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 relating to 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/
1. On March 3, 1992, Petitioner was charged in an information filed by the
New Mexico Attorney
General's office with having abused a resident on or about March 15, 1991. The
prosecutors contended
that Petitioner's conduct constituted a criminal violation of New Mexico statute
30-47-4 ("Abuse of a
Resident"). I.G. Ex. 2.
2. The exact nature of Petitioner's misconduct was that she intentionally failed
to administer medication
that had been ordered for an elderly resident and patient of the Home. (She
was charged with having done
this to only one person, but the record of the State investigation indicates
that others may have been
similarly mistreated.) I.G. Ex. 5.
3. On March 3, 1992, Petitioner, relying on the legal principle enunciated
in North Carolina v. Alford, 400
U.S. 25 (1970) entered a plea in the New Mexico Second Judicial District Court
to the charge of "Abuse of
a Resident." I.G. Ex. 3.
4. Petitioner's plea was accepted by the court. I.G. Ex. 4.
5. Petitioner's Alford plea, which was accepted by the State court, constitutes
a "conviction" for purposes
of section 1128(a) of the Act.
6. At the time she was convicted, Petitioner was a licensed practical nurse,
employed at the Camino Vista
Nursing Home (Home). I.G. Ex. 5.
7. A commonsense appraisal of Petitioner's undisputed conduct shows that her
unwarranted obstruction of
the care which the elderly resident had a right to expect, is, reasonably, definable
as "abuse."
8. The investigation by the State Auditor's department (see I.G. Ex. 5) reveals
that Petitioner's victim was
receiving medical treatment while a resident of the Home. Thus, such resident
was a "patient" within the
meaning of section 1128(a) of the Act.
9. Petitioner's conviction for abusing a patient at the home, a crime committed
while she was on duty, and
at a time when she was supposed to be caring for such patient, clearly indicates
that the abuse was
connected with the delivery of a health care item or service.
10. The Act requires persons who violate section 1128(a)(2) by abusing patients
to be excluded for a
minimum of five years, which period cannot be waived or lessened.
11. The Secretary of Health and Human Services delegated to the I.G. the authority
to determine and
impose exclusions pursuant to section 1128 of the Act. 48 Fed. Reg. 21662 (1983).
PETITIONER'S ARGUMENT
Petitioner contended that her Alford plea was not intended to admit guilt.
She asserted also that her lawyer
had assured her there would be no other sanctions if she pled guilty.
DISCUSSION
The law relied upon by the I.G. to exclude Petitioner (section 1128(a)(2))
requires, initially, that the person
excluded must have been convicted of a crime. Petitioner herein, a licensed
practical nurse charged with
the unlawful abuse of a person in her care, entered an Alford plea in State
court. 2/
The court accepted the plea and Petitioner was sentenced. Section 1128(i)(3)
of the Act provides that when
an individual enters a guilty plea or pleads nolo contendere to a criminal charge,
and such plea is 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. Established case precedent holds
that an Alford plea falls
within this rule. Russell E. Baisley, et al., DAB CR276 (1991).
The investigation by the State Auditor's department (I.G. Ex. 5), which Petitioner
has not disputed, reveals
that she intentionally failed, in at least one instance, to administer medication
that had been ordered for an
elderly resident and patient of the Home. A commonsense appraisal of this conduct
leads me to conclude
that the unwarranted obstruction of care which an elderly resident had the right
to expect is, reasonably,
definable as "abuse."
The evidence produced by the State investigation further establishes that the
person abused by Petitioner
was receiving medical treatment while a resident of the Home. Thus, the victimized
individual was a
"patient" within the meaning of section 1128(a) of the Act.
As to the last statutory criterion, I conclude that the facts that Petitioner's
misconduct took place in a
nursing home where the victim had been residing as well as receiving treatment
as a patient, and that the
perpetrator was a health-care worker whose duty was to assist in the care of
patients, establish that the
criminal offense was in connection with the delivery of a health care item or
service.
Based on the above facts and reasoning, I have determined that the Petitioner
herein was convicted of a
State criminal offense relating to the neglect or abuse of patients in connection
with the delivery of a health
care item or service.
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
of criminal patient
abuse in connection with the delivery of a health care item or service. Neither
the I.G. nor the judge is
authorized to reduce the five-year minimum mandatory period of exclusion. Jack
W. Greene, DAB CR19,
at 12 - 14 (1989).
The I.G.'s five-year exclusion is, therefore, sustained.
_______________________________
Joseph K. Riotto
Administrative Law Judge
1. The I.G. submitted a brief and six documentary exhibits. I admit the exhibits
into evidence and cite
them as I.G. Ex. (number).
2. When raising an Alford plea, a criminal defendant accepts being treated
as guilty by the court, while
reserving the right to simultaneously proclaim his or her innocence.