$05:Exclusion Case
Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD
Civil Remedies Division
In the Case of:
Selma Zimmerman,
Petitioner,
- v. -
The Inspector General.
DATE: March 16, 1995
Docket No. C-94-414
Decision No. CR364
DECISION
By letter dated June 10, 1994, the Inspector General (I.G.)
notified Petitioner that she was being excluded for five years from
participation in the Medicare, Medicaid, Maternal and Child Health
Services Block Grant and Block Grants to States for Social Services
programs specified in sections 1128(a) and 1128(h) of the Social
Security Act (Act). The I.G. cited section 1128(a)(2) of the Act
as the basis for imposing and directing this exclusion. Petitioner
requested a hearing to contest her exclusion. With her hearing
request, she filed also a Brief in Support of Request for Hearing
(P. Hrg. Req. Br. at (page)).
I held a prehearing conference in this case on September 1, 1994.
The parties filed the following documents pursuant to the schedule
established at this conference:
I.G.'s Motion for Summary Disposition; I.G.'s Proposed Findings of
Fact and Conclusions of Law; I.G.'s Brief in Support of Motion for
Summary Disposition (I.G. Br. at (page)); I.G.'s exhibits numbered
1 to 4 (I.G. Ex. 1 to 4) 1/; Petitioner's Response to Motion for
Summary Disposition (P. Resp. to Motion for Summ. Disp. at (page));
Petitioner's Brief in Support of Response to Motion for Summary
Disposition (P. Br. at (page)); Petitioner's Proposed Findings of
Fact and Conclusions of Law (P. Prop. FFCLs. at (page));
Petitioner's exhibits numbered 1 to 3 (P. Ex. 1 to 3) 2/; I.G.'s
Brief in Reply to Petitioner's Brief (I.G. Reply at (page)).
Neither party has objected to the admissibility of the other's
exhibits. Therefore, I have admitted into evidence all exhibits
offered by the parties.
Having considered the arguments and submissions of the parties, I
grant the I.G.'s summary disposition motion (summary judgment
motion) for the reasons stated below.
I. ISSUES, FINDINGS OF FACT, AND CONCLUSIONS OF LAW
I identified the following issues in my October 5, 1994 Order and
Schedule for Filing Briefs and Documentary Evidence:
A. Whether the I.G. had a basis upon which to exclude
Petitioner; and
B. Whether the length of the exclusion imposed and
directed against Petitioner is reasonable.
However, because the I.G. imposed and directed an exclusion of only
five years against Petitioner, the reasonableness of the exclusion
period is wholly controlled by whether the I.G. had a basis for
excluding Petitioner under section 1128(a)(2) of the Act. See 42
C.F.R. 1001.2007(a)(2). As further explained below, section
1001.2007(a)(2) specifies that the reasonableness of the exclusion
period is not an issue for hearing where, as here, the I.G. has
imposed an exclusion of five years under section 1128(a) of the
Act. Id.
To resolve the controversies before me, I issue the following
findings and conclusions, with citation to the parts of my decision
at which I discuss each finding or conclusion in greater detail:
1. There are no material facts in dispute in this case.
Thus, the case can be decided on the parties' summary judgment
motions. 3/ Pages 3-5.
2. Petitioner was convicted of a criminal offense. Pages
5-6.
3. Petitioner was convicted of a criminal offense which
related to a "patient" and was "in connection with delivery of
a
health care item or service." Pages 6-7.
4. The criminal offense which Petitioner was convicted of is
"related to neglect" of a patient. Pages 8-12.
5. Petitioner's five-year exclusion is reasonable as a matter
of law. Page 12.
6. Petitioner is not entitled to an award of the costs she
incurred in opposing the I.G.'s summary judgment motion. Page 12.
7. I grant the I.G.'s summary judgment motion in full.
Page 13.
II. DISCUSSION
A. The case can be decided on the basis of the I.G.'s
summary judgment motion and Petitioner's response to
that motion.
As the Secretary's delegate, the I. G. has the authority to impose
and direct an exclusion pursuant to section 1128(a)(2) of the Act
where an individual has been "convicted, under Federal or State
law, of a criminal offense relating to neglect or abuse of patients
in connection with the delivery of a health care item or service."
Act, section 1128(a)(2). In cases where the foregoing statutory
criteria are met, the I.G. must exclude the convicted individual or
entity for a period of not less than five years. Act, section
1128(c)(3)(B). Therefore, in cases such as this one, where the
I.G. has imposed an exclusion of only five years pursuant to what
the Secretary's regulations term a "mandatory exclusion" under
section 1128(a) of the Act, the excluded individual does not have
a right to a hearing on whether that five-year period of exclusion
is reasonable. 42 C.F.R. 1001.2007(a)(2); 42 C.F.R. Part 1001,
Subpart B. Accordingly, an exclusion of five years is mandatory
and reasonable as a matter of law where the I.G. had the basis for
imposing and directing an exclusion under section 1128(a)(2) of the
Act. However, if the facts fail to establish the requisite basis
for an exclusion under section 1128(a)(2) of the Act, then the
five-year exclusion is per se invalid, and, therefore,
unreasonable.
The I.G. has chosen to file a summary judgment motion in this case.
The regulations authorize me to decide a case by summary judgment
where there is no material fact in dispute. 42 C.F.R.
1005.4(b)(12). In adjudicating the I.G.'s summary judgment motion,
I have followed the principles contained in Rule 56 of the Federal
Rules of Civil Procedure and the interpretations of administrative
law judges and appellate panels of the Departmental Appeals Board
(the Board). 4/ See, e.g., Thelma Walley, DAB 1367 (1992).
To prevail on a summary judgment motion, a moving party must
establish, by use of affidavits or other filings of record, that
there is no genuine issue as to any material fact and that the
movant is entitled to judgment as a matter of law. Fed. R. Civ. P.
56(c). That is to say,
the party moving for summary judgment
has the initial burden of showing the absence of any
genuine issue as to all the material facts which, under applicable
principles of substantive law, entitle that party to judgment as a
matter of law. If the documents before the court fail to establish
clearly that there is no genuine issue as to any material fact, the
motion must be denied.
Walley DAB 1367 at 6 (emphasis in original) (citations omitted).
When the summary judgment motion is properly supported, the adverse
party may not rest upon mere allegations or denials. Fed. R. Civ.
P. 56(e). The function of summary judgment is to pierce the
pleadings and to assess the parties' proof to determine whether
there is a genuine need for further proceedings. Therefore,
summary judgment may be entered if the adverse party does not
respond to a properly supported summary judgment motion or does not
set forth specific facts showing that there is a genuine issue that
should be reserved for trial or other disposition. Fed. R. Civ. P.
56(e).
Petitioner argues that the I.G. is not entitled to summary judgment
as a matter of law. As discussed below, in her opposition to the
I.G.'s summary judgment motion, Petitioner has not demonstrated any
genuine issue as to any material fact. Indeed, Petitioner
describes her arguments as "legal rather than factual." P. Resp.
to Motion for Summ. Disp. at 1. According to Petitioner, her
conviction was, "as a matter of law, unrelated to abuse or
neglect." Id.
Having considered the facts and arguments of record in this case,
I conclude that the I.G. is entitled to prevail as a matter of law.
I have therefore resolved this case in full by entering summary
judgment for the I.G.
B. Petitioner was convicted of a criminal offense.
Under Section 1128(i)(1) of the Act, an individual is considered to
have been "convicted" when a judgment of conviction has been
entered against the individual or entity. In this case, Petitioner
has admitted that she was convicted of failing to report abuse.
According to court documents supplied by both parties, Petitioner
was found guilty on December 30, 1992, of failing to "report a case
of suspected abuse, neglect, or exploitation . . ." in violation of
ARK. CODE ANN. 5-28-202 (1987), and a judgement of conviction
was entered against her by the Municipal Court of Lonoke, Arkansas.
P. Br. at 2, I.G. Br. at 1; I.G. Ex. 3. Based on these undisputed
facts, I conclude that Petitioner was "convicted" of a criminal
offense within the meaning of section 1128(i) of the Act. I.G. Ex.
2, 3.
C. Petitioner was convicted of a criminal offense which was
related to a "patient" and was "in connection with the delivery
of
a health care item or service."
Petitioner was Assistant Administrator of the Zimmerman Nursing
Home in Carlisle, Arkansas. P. Hrg. Req. Br. at 1. Based on the
parties submissions, I have no doubt that the Zimmerman Nursing
Home was in the business of providing health care to its residents
during the entire period Petitioner was its Assistant
Administrator. Therefore, I find that the residents of the
Zimmerman Nursing Home are its "patients," within the ordinary
definition of that word.
Petitioner acknowledges that her conviction arose out of an
incident involving a resident of the Zimmerman Nursing Home named
"Jane Doe." P. Br. at 1; P. Prop. FFCLs. at 1. According to
Petitioner, Jane Doe was a schizophrenic with delusional tendencies
and a history of mental problems. Id. On the day of the incident
which led to Petitioner's conviction, Jane Doe accused Petitioner
of beating her. Id. Petitioner was subsequently tried and
convicted of failing to report Ms. Doe's allegations of abuse. P.
Br. at 2. These undisputed facts of record leave no doubt that
Jane Doe was living in Zimmerman Nursing Home in order to receive
health care items or services.
Even if the record before me were less clear as to the status of
the individual who claimed to have been beaten by Petitioner, I
could conclude from the elements of the Arkansas Code under which
Petitioner was convicted that the alleged victim of suspected abuse
was in the Zimmerman Nursing Home for the receipt of health care
items or services. Arkansas law provides for a penalty which must
be invoked against any individual "required by this chapter to
report a case of suspected abuse," when such individual fails to do
so. ARK. CODE. ANN. 5-28-202 (1987) (emphasis added). Section
5-28-203, incorporated by section 5-28-202, describes the
individuals who are "required by this chapter" to make a report of
suspected abuse.
Section 5-28-203 describes the individuals who are under a duty to
report suspected abuse. Under part (a)(1) of section 5-28-203, any
"physician, surgeon, . . . resident intern, registered nurse,
hospital personnel who are engaged in the administration,
examination, care, or treatment of persons," must report any
"reasonable" suspicions of abuse. Part (a)(2) of section 5-28-203
provides that "[w]henever a person is required to report under this
chapter in his capacity as a member of the staff [or] an employee
in a facility, . . . he shall immediately notify the person in
charge of the institution [or] facility, . . . or his designated
agent . . . ." 5/ This person in charge of the institution or
facility "shall then become responsible for making a report or
cause a report to be made." Id. Thus, the Arkansas Code, by its
clear terms, regulates the actions of those who deliver health care
services.
Section 5-28-203 imposes this duty to report whenever there is
reasonable cause to suspect that an "endangered adult" may be
subject to abuse. As defined by the Arkansas Code, "Endangered
adults" are adults living inside or outside of a long-term care
facility who are "found to be in a situation or condition which
poses an imminent risk of death or serious bodily harm to that
person" and who lack the ability "to comprehend the nature and
consequence of remaining in that situation or condition." ARK.
CODE ANN. 5-28-101(1)(A). In this case, Petitioner could not
have been convicted absent a complaint by an endangered individual
whose survival necessitated the delivery of health care services
for her care and maintenance. Furthermore, Petitioner's failure to
report could not have resulted in her conviction had the Zimmerman
Nursing Home not been a health care facility, had Jane Doe not been
an "endangered adult" patient residing there at the time of the
alleged abuse, and had Petitioner not been the Assistant
Administrator of the Zimmerman Nursing Home and the individual to
whom Jane Doe alleged the abuse.
I find, therefore, that Petitioner's conviction related to a
"patient" and was "in connection with the delivery of a health
care
item or service" within the meaning of section 1128(a)(2) of the
Act.
D. Petitioner's offense is related to the "neglect" of a patient.
The I.G. does not contend that Petitioner's conviction is related
to the abuse of any patient. I.G. Br. at 11. The I.G. contends
only that Petitioner's conviction is for a criminal offense related
to the neglect of a patient. Id. Having considered Petitioner's
submissions to the contrary, I find that Petitioner's conviction
for failure to report abuse, pursuant to section 5-28-202 of the
Arkansas Code, is "related to neglect" of a patient, within the
meaning of section 1128(a)(2) of the Act.
1. Petitioner's conviction establishes that Petitioner had
an affirmative duty to report the abuse alleged by Jane Doe.
In an earlier decision, I analyzed the relationship between section
1128(a)(2)'s reference to patient neglect and a conviction for
failure to report an incident of suspected patient abuse. Glen E.
Bandel, DAB CR261 (1993). In Bandel, the petitioner was in charge
of the health care facility where he worked, and, in that capacity,
he had a duty under an Iowa statute to report any incident of
suspected dependent adult abuse. I found that the State law under
which Mr. Bandel was convicted created a duty of care to protect
the health, safety, and well-being of the dependent adult patients
in his charge. In failing to comply with the mandatory reporting
requirements of the State statute involved, Mr. Bandel neglected a
dependent adult patient's right to an aspect of care especially
recognized and required by the State reporting law. Therefore, the
resultant conviction in Iowa State court was related to patient
neglect within the meaning of section 1128(a)(2) of the Act.
In this case, Petitioner asserts that she did not have a duty to
report suspected abuse under Arkansas law because she was the one
falsely accused of having abused the patient and, therefore, she
did not have any "reasonable cause" to suspect abuse, as required
under section 5-28-203. P. Br. at 6. Petitioner contends also
that she was not "the person in charge" of the Zimmerman Nursing
Home, and therefore, it was not her responsibility to report the
incident pursuant to section 5-28-203(a)(2). P. Hrg. Req. Br. at
2. Petitioner alleges that "by unwritten policy," the Director of
Nursing was the official responsible for reporting any incidents of
suspected abuse at the Zimmerman Nursing home. Id. Moreover,
Petitioner argues that since the Director of Nursing reported the
incident the day after it occurred, there was no need for
Petitioner to "make a redundant reporting call." Id.
Both arguments, however, are collateral attacks on Petitioner's
conviction, and I am not authorized to consider them. 42 C.F.R.
1001.2007(d). As discussed earlier, Petitioner's conviction was
for failure to report suspected abuse under section 5-28-202, which
cross-references section 5-28-203. These State statutes contain
the elements that must be proven for a conviction. Therefore,
Petitioner's conviction means that Petitioner was found to have had
a duty to report Jane Doe's allegation of abuse, and that
Petitioner wilfully failed to make this report. See, e.g., I.G.
Ex. 3 and State statutes cited therein.
I must accept as valid the findings of fact inherent in the
conviction itself. See, 42 C.F.R. 1001.2007(d). Petitioner's
arguments to the contrary are of no legal weight. I cannot allow
Petitioner to use federal exclusion hearing procedures to challenge
her State conviction.
2. Even though Petitioner was not convicted of
actual neglect, her conviction was for a criminal offense
"relat[ed] to neglect," within the meaning of section 1128(a)(2).
Petitioner cites legislative history, the absence of a conviction
for neglect under State law, and certain language from my decision
in Bandel to support her contention that she was not convicted of
a criminal offense "related to neglect." P. Br. at 3-6. For
example, Petitioner argues that, because the Arkansas Code does not
specifically include the offense of failure to report abuse in its
definition of "neglect," Petitioner's conviction is not "related
to
neglect" under Arkansas law. Moreover, Petitioner contends that
the Arkansas Code differs from the Iowa reporting statute I
considered in Bandel; and that therefore, I may not rely on Bandel
for the proposition that failure to report suspected abuse is a
form of neglect. According to Petitioner, her position is
supported by my observation in Bandel that "Petitioner's [i.e., Mr.
Bandel's] omission might not relate to patient neglect in
jurisdictions without laws similar to Iowa's [statute imposing a
reporting duty]." P. Br. at 4.
I reject Petitioner's arguments.
I note first by way of background that Congress did not intend for
section 1128(a)(2) of the Act to reach only those persons who have
directly abused or neglected patients. Section 1128(a)(2) of the
Act does not require a conviction for actual patient abuse or
neglect; rather, it requires a conviction for an offense that
related to, entailed, or resulted in, the abuse or neglect of a
patient. Section 1128(a)(2) of the Act; 42 C.F.R. 1001.101(b)
(1992). In promulgating regulations to implement the Act, the
Secretary has noted especially that, "the offense [which] is the
basis for the exclusion need not be couched in terms of patient
abuse or neglect." 57 Fed. Reg. 3303 (1992). The illustrative
example which is given in the Federal Register to prove this point
is a conviction for embezzlement of nursing home funds that
resulted in the neglect of patients. Id.
In addition, Petitioner has misinterpreted a statement I made in
Bandel. P. Br. at 5. My observation that Mr. Bandel's omission
might not relate to patient neglect in jurisdictions without laws
similar to Iowa's section 135B.1(7) does not mean that, for me to
find Petitioner's conviction to be related to patient neglect in
this case, the Arkansas reporting statute must be the same as
Iowa's reporting statute. Nor did my statement mean that the
omission committed by Mr. Bandel is the only type of offense I
would consider to be related to patient neglect in Iowa or
elsewhere. I made the statement quoted by Petitioner in the course
of noting that I was deciding the issues in Bandel based on the
facts and laws relevant to that case. In short, I was pointing out
that I decide the "related to patient neglect" issue on a case by
case basis.
It is true that this case differs from Bandel in that Petitioner
herein was convicted of failing to report an incident in which she
was the alleged abuser, whereas Mr. Bandel was convicted for
failing to report an incident in which another employee was the
alleged abuser. However, such a distinction is without any legal
significance regarding the issue as to whether each conviction was
related to the neglect of patients. Both the petitioner in Bandel
and Petitioner in this case were convicted of violating a state
reporting statute, and of breaching their duty to report suspected
incidents of patient abuse.
In several decisions involving fact patterns and state reporting
laws similar to those before me here, the Board has affirmed the
I.G.'s determination that a conviction for failure to report
suspected or alleged abuse is "related to neglect" of patients,
within the meaning of section 1128(a)(2) of the Act. E.g., Dawn
Potts, DAB CR120 (1991); Vicky L. Tennant, R.N., DAB CR134
(1991); Carolyn Westin, DAB CR229 (1992), aff'd DAB 1381 (1993),
aff'd sub nom., Westin v. Shalala, 845 F. Supp. 1446 (D. Kan.
1994). In Westin, the petitioner was convicted for failing to file
an incident report regarding a resident of the nursing home where
she was an administrator. An appellate panel of the Board found
that because the Act explicitly provides for exclusion when a party
is convicted of a crime "related to" patient neglect or abuse, "it
does not matter that the term `neglect' was not specifically
mentioned during the criminal process." Westin, DAB 1381 at 12.
On judicial review, the U.S. District Court agreed and held as
follows:
[T]here is no requirement that the Secretary demonstrate
that actual neglect or abuse of patients occurred, nor is there a
requirement that the individual or entity be convicted of an actual
offense of patient neglect or abuse. The phrase "relating to"
clearly encompasses a broader range of conduct than actual neglect
or abuse.
Westin, 845 F. Supp. at 1450. The court affirmed the imposition of
the five-year exclusion under section 1128(a)(2) of the Act. Id.
at 1449, 1454.
For the foregoing reasons, I conclude that Petitioner was convicted
of an offense related to patient neglect even though the State of
Arkansas did not charge her with actually neglecting Jane Doe.
Petitioner was convicted under section 5-28-202 of the Arkansas
Code, which incorporates section 5-28-203 by reference. Since
neither of these sections uses the term "neglect," I do not find it
necessary to interpret the definition of "neglect" contained in
section 5-28-101, as urged by Petitioner. P. Br. at 5-6.
3. Petitioner's conviction is "relat[ed] to
neglect," within the meaning of section 1128(a)(2), even though she
was acquitted of an assault charge.
Petitioner contends that her actions did not result in the neglect
of a patient. Petitioner reasons that because the Municipal Court
of Lonoke, Arkansas found her to be not guilty of abuse, her
failure to report an incident of abuse was not an act of neglect
within the meaning of section 1128(a)(2) of the Act. P. Br. at 4.
However, while Petitioner's evidence establishes that she was found
not guilty of assault under Arkansas law,
(P. Ex. 2.), I find that Petitioner's conviction "relates to
neglect," even though she has not been found guilty of patient
abuse. The I.G. has not contended that Petitioner's conviction for
failure to report suspected abuse is related to patient abuse under
section 1128(a)(2) of the Act. The I.G. argues only that
Petitioner's conviction is related to patient neglect. I.G. Reply
at 7.
Petitioner's acquittal of an assault charge does not negate the
fact that her conviction relates to the neglect of a patient. As
I explained in the preceding section, in determining whether a
criminal offense is "relat[ed] to neglect" under section 1128(a)(2)
of the Act, there is no requirement for proof that a patient was
actually neglected or abused. E.g., Westin, 845 F. Supp. at 1450.
E. The length of the exclusion imposed and directed against
Petitioner is reasonable as a matter of law.
Under the facts of this case, I cannot consider Petitioner's
argument that the length of her exclusion is unconscionable. P.
Br. at 7; 42 C.F.R. 1001.2007(a)(2). Section 1128(a)(2)
mandates that parties who are convicted of offenses described in
that section must be excluded from Medicare and Medicaid for five
years. Congress gave the Secretary no discretion to impose an
exclusion of less than five years in such cases. Therefore, I must
affirm the five-year exclusion imposed and directed against
Petitioner by the I.G.
F. Petitioner is not entitled to an award of costs.
Petitioner requests an award of the costs she has incurred in her
opposition to the I.G.'s summary judgment motion. P. Resp. to
Motion for Summ. Disp. at 1. Petitioner's request is premised on
her contention that she is entitled to prevail as a matter of law.
Id. Therefore, my conclusion that the I.G. (and not Petitioner) is
entitled to judgment as a matter of law is dispositive of
Petitioner's request for costs. I do not find it necessary to
consider whether Petitioner had a proper regulatory or statutory
basis for having filed such a request in the first instance.
CONCLUSION
For the foregoing reasons, I have concluded that there exists no
genuine issue of fact concerning the I.G.'s basis for imposing and
directing an exclusion against Petitioner pursuant to section
1128(a)(2) of the Act. The I.G. is entitled to judgment on this
issue as a matter of law. Also as a matter of law, the length of
the exclusion in this case (five years) is proper. I therefore
grant the I.G.'s summary judgment motion in full and sustain the
exclusion imposed and directed against Petitioner.
___________________________
Mimi Hwang Leahy
Administrative Law Judge
1. I have re-numbered the I.G.'s exhibits to include the
affidavit which the I.G. submitted as an attachment to her brief.
Accordingly, I refer to the affidavit of Johanna G. Evans,
Investigative Assistant for the Office of the Inspector General, as
I.G. Ex. 1; the warrant of arrest and accompanying affidavit as
I.G. Ex. 2; the court's entry of Petitioner's conviction as I.G.
Ex. 3; and the court's entry of Petitioner's acquittal as I.G. Ex.
4.
2. Petitioner's exhibits were not numbered. I have numbered
Petitioner's exhibits to conform with my Order of October 5, 1994.
Thus, the court's entry of Petitioner's conviction is P. Ex. 1; the
court's entry of Petitioner's acquittal is P. Ex. 2; and the
affidavit of Selma Zimmerman is P. Ex. 3.
3. Even though Petitioner has not styled her filings as a
cross-motion for summary judgment, I have construed them as such.
4. Even though the Federal Rules of Civil Procedure have no
binding force in administrative proceedings, administrative law
judges have often used them for guidance. In addition, the summary
judgment criterion stated in the Secretary's regulation is the same
as that contained in the Federal Rules. 42 C.F.R.
1005.4(b)(12); Fed. R. Civ. P. 56.
5. This section of the statute also imposes a reporting duty on
employees of the Department of Human Services and the head of the
agency. However, there is no evidence that Petitioner was an
employee of the Department of Human Services; nor was she the head
of any agency at the time of the incident involving "Jane Doe."