Loretta Chee, CR No. 351 (1995)

$05:Exclusion Case

Department of Health and Human Services

DEPARTMENTAL APPEALS BOARD

Civil Remedies Division


In the Case of:

Loretta Chee,

Petitioner,

- v. -

The Inspector General.

DATE: January 9, 1995
Docket No. C-94-351
Decision No. CR351


DECISION

By letter dated February 8, 1994, Loretta Chee, the Petitioner
herein, was notified by the Inspector General (I.G.), of the 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 described in section 1128(h) of the
Social Security Act (Act), which are referred to herein as
"Medicaid."

The reason given for this action was that exclusion, for at least
five years, is mandated by sections 1128(a)(2) and 1128(c)(3)(B) of
the Act because Petitioner had 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.

Petitioner filed a timely request for review of the I.G.'s action
by an administrative law judge (ALJ) of the Departmental Appeals
Board (DAB). The I.G. moved for summary disposition. Petitioner
agreed that the case could be decided on the documentary record and
that no in-person hearing was necessary. Petitioner then moved for
summary disposition in her favor.

Because I determined that there are no facts of decisional
significance genuinely in dispute, and that the only matters to be
decided in this case are the legal implications of the undisputed
facts, I have granted the
requests for summary disposition and decided the case on the basis
of the parties' written arguments and evidence. 42 C.F.R.
1005.4(b)(12).

I find no reason to disturb 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 Medicaid or Medicare programs for a period of
at least five years.


FINDINGS OF FACT AND CONCLUSIONS OF LAW 1/

1. During the period relevant to this case, Petitioner was a
nurse's aide at San Juan Manor Nursing Home, a health care
facility, located in New Mexico. I.G. Exs. 1, 6.

2. While employed at San Juan Manor Nursing Home, Petitioner
participated in caring for a patient and resident named James
Smith. I.G. Exs. 1 - 6; P. Ex. 1.

3. Petitioner attests that, on November 15, 1992, while she was
attempting to bathe Mr. Smith prior to his bedtime, "he became very
combative." P. Ex. 1.

4. Petitioner contends that, because Mr. Smith had kicked and hit
her, she then "restrained" Mr. Smith by tying him to the bed. P.
Ex. 1.


5. Based upon the incident involving Mr. Smith, a criminal
complaint was filed in the Magistrate's Court, San Juan County, New
Mexico, on or about March 9, 1993, charging Petitioner with false
imprisonment -- i.e., that Petitioner intentionally restrained
another person without his consent and with knowledge that she had
no lawful authority to do so. I.G. Ex. 1.

6. The complaint stated further that Petitioner "did restrain
James Smith, a resident of the San Juan Manor Nursing Home, a care
facility, by tying him to a bed immobilized and leaving him
unattended and said restraint was without the consent of James
Smith and not authorized by the facility nor any doctor or nurse,
and the defendant knew she had no lawful authority to restrain
James Smith." I.G. Ex. 1.

7. Petitioner entered into a plea bargain with the State whereby
she pled nolo contendere to a misdemeanor charge of having
committed battery upon Mr. Smith. I.G. Exs. 2, 3.

8. By order issued May 26, 1993, the court "accepted the plea as
an admission of guilt for purposes of this action only," but ruled
that sentencing was to be "deferred 90 days on the condition no
similar charges during this time [sic]." I.G. Ex. 4.

9. On October 4, 1993, the court dismissed the case against
Petitioner. The reason for its action was that Petitioner " . . .
did not receive any similar charges during the deferral period."
I.G. Ex. 5.

10. To justify excluding an individual pursuant to section
1128(a)(2) of the Act, the I.G. must prove: (1) that the individual
has been convicted of a criminal offense; (2) that the conviction
is related to the neglect or abuse of patients; and (3) that the
patient neglect or abuse to which an excluded individual's
conviction is related occurred in connection with the delivery of
a health care item or service.

11. The court's acceptance of Petitioner's nolo contendere plea
constitutes a conviction within the meaning of section 1128(i)(3)
of the Act.

12. The court's deferral of a formal finding of guilt against
Petitioner is a deferred adjudication or other arrangement or
program where judgment of conviction has been withheld,
constituting a conviction within the meaning of section 1128(i)(4)
of the Act.

13. The conviction of the criminal offense at issue here relates
to the neglect or abuse of a patient, and is connected with the
delivery of a health care item or service, within the meaning of
section 1128(a)(2) of the Act.

14. The I.G. properly excluded Petitioner from participation in
the Medicare and Medicaid programs for five years, as required by
the minimum mandatory exclusion provisions of sections 1128(a)(2)
and 1128(c)(3)(B) of the Act.

15. Neither the I.G. nor an administrative law judge is authorized
to reduce the length of a mandatory five-year period of exclusion.

16. The determination of the I.G. to impose and direct a five-year
exclusion in this case does not violate the prohibition against
double jeopardy under the United States Constitution because the
sanction imposed is reasonably related to a legitimate remedial
objective -- i.e., protecting consumers of health care -- and
because such exclusion was preceded by a State conviction.


PETITIONER'S POSITION

In documents filed in this proceeding, Petitioner acknowledges that
she "restrained" Mr. Smith. 2/ She states also that she "does not
dispute" that such crime related to patient abuse in connection
with the delivery of a health care item or service.

Petitioner contends, nevertheless, that the law does not require
her exclusion. In particular, she maintains that the dismissal of
the case against her by the court is not a deferred adjudication
encompassed by section 1128(i)(4) of the Act, which section
classifies deferred adjudication as a form of conviction. Evidence
of the absence of deferred adjudication, she says, is that certain
policies or practices, allegedly indispensable to deferred
adjudication -- forbidding a defendant from withdrawing a guilty or
nolo plea and requiring a defendant to pay fines, expenses, or
restitution before commencing a deferral-of-adjudication period --
were not applied to her, thereby showing that her case was not a
deferred adjudication. Instead, she maintains that what occurred
in her case was a deferred prosecution which does not mandate her
exclusion. Petitioner cites Travers v. Shalala, 20 F.3d 993 (9th
Cir. 1994) as supporting her position.

Additionally, Petitioner argues that the length of the exclusion
makes it disproportionate and punitive. Being punitive in nature,
she continues, an exclusion would amount to her being twice
punished for the same offense, in violation of the Eighth
Amendment. Finally, and also with regard to proportionality, she
suggests that for the government to do something as drastic as
taking away her ability to earn a living, in a case like this,
where the government suffered no initial financial loss, violates
the Constitution. Petitioner cites United States v. Halper, 490
U.S. 435 (1989).


DISCUSSION

The law relied upon by the I.G. to exclude Petitioner requires,
initially, that the person being excluded have been "convicted" of
a crime. In the case at hand, Petitioner, a nurse's aide, arranged
a plea bargain with the prosecution. She entered a plea of nolo
contendere (meaning she did not dispute the State's allegations) to
the charge that she had used unlawful violence against Mr. Smith.

The State judge accepted the nolo plea "as an admission of guilt
for purposes of this action only" but ruled sentencing was to be
"deferred 90 days on the condition no similar charges during this
time [sic]." When Petitioner completed the required period of good
behavior, the charges against her were dropped.

Section 1128(i) of the Act provides four definitions of the term
"convicted." Specifically: a court could enter a judgment of
conviction pursuant to section 1128(i)(1); a court could make a
formal finding of guilt pursuant to section 1128(i)(2); a court
could accept a guilty or nolo contendere plea pursuant to section
1128(i)(3); or, a court could allow the individual or entity to
enter into a first offender, deferred adjudication, or other
arrangement or program where judgment of conviction has been
withheld pursuant to section 1128(i)(4).

Two of these definitions of "convicted" are relevant here. For
purposes of mandatory exclusion under subsections 1128(a) and (b),
a person will be regarded as having been "convicted" if, inter
alia, he has entered a plea of nolo contendere to a criminal charge
and the court accepts such plea, or if (notwithstanding the court's
acceptance of a plea or determination of guilt) a formal judgment
of conviction is deferred or withheld, as might occur in a first
offender program. Thus, in the case at hand, two independent
statutory bases apparently are present which establish that
Petitioner was "convicted" -- i.e., the State court's acceptance
of Petitioner's plea and the presence of Petitioner's deferred
adjudication.

Petitioner, though, believes that the State court's action was not
a deferred adjudication within the meaning of section 1128(i)(4) of
the Act. She argues that it was a deferred prosecution, which does
not mandate her exclusion. She is of the opinion that the Travers
case supports her position in that it shows that, in a genuine
deferred adjudication, the accused cannot withdraw a guilty or nolo
plea, and that a defendant must pay fines, expenses, or restitution
before being allowed to commence the deferral period. I, however,
cannot agree that these factors support her position.

Travers, like the present case, arose out of the I.G.'s imposition
of the five-year mandatory exclusion provided in section 1128(a)
upon a health care worker who had been convicted of a relevant
criminal offense. The Court of Appeals, among other things,
affirmed that a deferred prosecution was not the equivalent of a
conviction, but that deferred adjudication was.

The Travers decision noted that "the heart of a deferred
prosecution is an agreement by the prosecutor to delay bringing or
prosecuting charges. In a deferred adjudication, there is no such
deferral by the prosecutor." The decision further states that
"[i]f the defendant [in a deferred prosecution] does not live up to
the terms of his agreement with the prosecutor, he may be free to
enter or persist in a plea of not guilty and proceed to trial. In
a deferred adjudication, on the other hand, if the defendant does
not live up to the terms of his agreement, he is not free to set
aside his plea or proceed to trial -- the court may simply enter a
judgment of conviction. . . . because the defendant has
irrevocably committed himself to a plea of guilty or no contest
which cannot be unilaterally withdrawn."

These holdings from Travers are consistent with the conclusion that
what occurred in the case at hand was indeed a deferred
adjudication. First, there is no indication that the prosecution
entered into an agreement with anybody to delay Petitioner's case.
Next, it must be emphasized that the New Mexico judge characterized
his own ruling as deferred sentencing. Third, Petitioner was
clearly advised that her nolo plea meant that she surrendered her
right to a trial; that no future trials could be expected; and that
all that remained was sentencing. This indicates that no
prosecutorial action was being reserved for the future. Likewise,
the prosecution was not free to change its mind and recharge or try
Petitioner. The prosecutor gave up this option by signing the
"Plea and Disposition Agreement," which provides that the original
charges (arising out of the Smith incident) may not again be
brought against Petitioner. I.G. Ex. 2. Thus, the prosecution was
not "deferring" action against Petitioner. Rather, it had
negotiated the plea bargain, and, from that time, its role was,
essentially, over.

As to Petitioner's references to a defendant's inability to
withdraw a plea, Travers simply makes it clear that, in a deferred
adjudication, the defendant's guilt has usually been established
(by plea or otherwise) well before the judge must decide upon
sanctions, deferrals, or the like.

Petitioner insists that certain policies or practices, allegedly
characteristic of deferred adjudication (forbidding a defendant
from withdrawing a guilty or nolo plea and requiring a defendant to
pay fines, expenses, or restitution before commencing a
deferral-of-adjudication period) were not applied to her, thereby
proving that her case was not a deferred adjudication. The
evidence, however, does not show that Petitioner had a genuine
opportunity to change her plea. There were some references in
court documents to withdrawal of pleas, but these were multipurpose
documents and the language did not apply to Petitioner. The
contention that there must be substantial financial penalties prior
to a deferral of adjudication has not been shown to have any legal
basis.
The law imposes the further requirement (in subsection 1128(a)(2))
that the criminal conviction at issue be related to the neglect or
abuse of patients in connection with the delivery of a health care
item or service.

This criterion is readily satisfied in the instant case. San Juan
Manor Nursing Home, where Petitioner worked, was a facility whose
purpose was providing health care services. It is undisputed that
Petitioner's job -- nurse's aide -- directly involved her in
patient care and the delivery of health care services to
individuals at San Juan Manor Nursing Home. Indeed, she was
personally and directly caring for Mr. Smith when she used unlawful
force on him.

As to whether Petitioner's misconduct constituted "abuse" or
"neglect," neither of these terms is defined in the Act, but it is
self-evident that a health care worker's use of unauthorized force
and "restraint" on an individual entrusted to her amounts to abuse.
Furthermore, Petitioner entered her nolo plea to a charge of
battery. Battery, by definition, involves the intentional use of
unlawful force, in a harmful or offensive manner, 3/ and, is
inherently violative of section 1128(a)(2).

As to Petitioner's constitutional arguments, inasmuch as the
sanction imposed herein is reasonably related to a legitimate
remedial objective -- i.e., protecting consumers of health care --
such civil sanction does not violate the prohibition against double
jeopardy. Manocchio v. Kusserow, 961 F.2d 1539, 1542 (11th Cir.
1992).

It is also well established that the constitutional prohibition
against double jeopardy does not apply to exclusions from the
Medicare or Medicaid programs arising out of a State conviction.
Kahn v. Inspector General, 848 F. Supp. 432, 437 (E.D. N.Y. 1994).

CONCLUSION

Sections 1128(a)(2) and 1128(c)(3)(B) of the Act mandate that the
Petitioner herein be excluded from the Medicare and Medicaid
programs for a period of at least five years because of her State
criminal conviction.


Joseph K. Riotto
Administrative Law Judge

1. Petitioner and the I.G. each submitted motions for summary
disposition and briefs. The I.G. submitted a reply brief. The
I.G. also submitted evidence in the form of eight documentary
exhibits. I cite the I.G. exhibits as "I.G. Ex(s). (number) at
(page)." I admit I.G. exhibits 1 - 8. Petitioner submitted her
affidavit in opposition to the I.G.'s motion for summary
disposition. I am admitting this in the record as Petitioner's
exhibit and cite it as "P. Ex. 1."

2. In her Brief in Opposition, Petitioner, through her counsel,
stated that she "admits and adopts the material facts submitted by
respondent in his [first] brief." Because there is some ambiguity
as to just what this stipulation encompasses, I have tried to
independently show a factual or legal basis for the reasoning and
holdings of this Decision.

3. See I.G.'s brief at page 10. See also Black's Law
Dictionary.