$05:Exclusion Case
Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD
Civil Remedies Division
In the Case of:
Alicia Pinto,
Petitioner,
- v. -
The Inspector General.
DATE: April 13, 1995
Docket No. C-94-331
Decision No. CR369
DECISION
By letter dated February 9, 1994, Alicia Pinto, the Petitioner
herein, was notified by the Inspector General (I.G.), of the United
States Department of Health & Human Services (HHS), that it had
been decided to exclude Petitioner for a period of five years from
participation in the Medicare, Medicaid, Maternal and Child Health
Services Block Grant, and Block Grants to States for Social
Services programs. 1/ The I.G.'s rationale was that exclusion, for
at least five years, is mandated by sections 1128(a)(2) and
1128(c)(3)(B) of the Social
Security Act (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.
The I.G. moved for summary disposition.
Because I have determined that there are no facts of decisional
significance genuinely in dispute, and that the only matters to be
decided are the legal implications of the undisputed facts, I have
decided the case on the basis of the parties' written submissions.
I grant the I.G.'s motion for summary disposition.
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 (FFCL) 2/
1. During the period relevant to this case, Petitioner was
employed as a certified nursing assistant (C.N.A.) at the Sarah R.
Neuman Nursing Home (Home), located in Mamaroneck, New York. I.G.
Exs. 1, 5, 9.
2. On July 30, 1991, Petitioner was charged, by information, with
having committed the offense of "wilful violation of the health
laws" under New York State Public Health Law, section 12-b(2), by
violating Public Health Law, section 2803-d, subdivision 7. I.G.
Ex. 1.
3. Specifically, the information alleged that, on February 21,
1991, Petitioner had slapped a female resident of the Home. I.G.
Ex. 1. 3/
4. Petitioner's case was tried before a jury in the Rye Town
Justice Court in Westchester County. I.G. Ex. 2.
5. On July 15, 1992, the jury found Petitioner guilty of one count
of wilful violation of the public health laws, a misdemeanor. I.G.
Ex. 2.
6. On October 28, 1992, judgment was formally entered against
Petitioner, and she was sentenced to six months probation, one year
conditional discharge, and twenty hours of community service in a
local hospital. I.G. Ex. 3.
7. The record contains an affidavit of the assistant nursing care
coordinator at the Home, in which she states that the person whom
Petitioner was convicted of abusing was a patient at the Home on
February 21, 1991. I.G. Ex. 9.
8. The affidavit evidence and other record evidence, which show
the nursing assistance required by the individual whom Petitioner
was convicted of abusing, establish that the individual was a
"patient" of the Home. I.G. Exs. 5 - 9.
9. The record contains this patient's admission record to the
Home. I.G. Ex. 6.
10. The patient at issue suffered from at least two serious
diseases and required continuous nursing support in her activities
of daily living. I.G. Exs. 6 - 9.
11. According to the affidavit of the assistant nursing care
coordinator, a C.N.A. performs patient care duties, which include
handling, transferring, feeding, and bathing of patients, and using
equipment such as wheelchairs and other devices. I.G. Ex. 9.
12. Petitioner regularly aided the patient at issue by performing
patient care duties for her. I.G. Ex. 9.
13. The incident which led to Petitioner's conviction occurred
while Petitioner was placing the patient in her wheelchair. I.G.
Ex. 5.
14. Petitioner was convicted of a criminal offense, within the
meaning of section 1128(i)(1) of the Act. FFCL 6.
15. Petitioner was convicted of a criminal offense, within the
meaning of section 1128(i)(2) of the Act. FFCL 5.
16. The criminal offense of which Petitioner was convicted relates
to neglect or abuse of patients in connection with the delivery of
a health care item or service, within the meaning of section
1128(a)(2) of the Act. FFCL 1 - 13.
17. The Secretary of HHS 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).
18. The five-year exclusion imposed and directed against
Petitioner by the I.G. is for the minimum period required by the
Act. Act, sections 1128(a)(2), 1128(c)(3)(B).
19. Under section 1128(a)(2) of the Act, a conviction within the
meaning of section 1128(i) mandates exclusion. The administrative
law judge is not authorized to look behind the conviction to
determine its validity.
20. Neither the I.G. nor an administrative law judge is authorized
to reduce the five-year minimum mandatory period of exclusion.
21. The I.G. properly excluded Petitioner from participation in
the Medicare and Medicaid programs for five years, as required by
sections 1128(a)(2) and 1128(c)(3)(B) of the Act. FFCL 1 - 20.
PETITIONER'S ARGUMENT
Petitioner contends that, notwithstanding the jury verdict against
her, she was not guilty of striking the elderly woman who was in
her care at the Home. She believes that her lack of mastery of the
English language, plus poor legal representation, caused her to be
wrongfully convicted. Petitioner's Brief at 1 - 6.
DISCUSSION
The law relied upon by the I.G. to exclude Petitioner requires,
initially, that the excluded individual has been convicted of a
criminal offense. Petitioner, a C.N.A., was charged with wilful
violation of the health laws, which charge was based on
Petitioner's alleged intentional and unlawful striking of a female
resident at the Home who was in Petitioner's care at the time.
FFCL 1 - 3. A jury found Petitioner guilty of the charge. FFCL 4,
5. The court thereupon sentenced Petitioner. FFCL 6.
Section 1128(i) of the Act provides that an individual will be
deemed "convicted" of a criminal offense under any of the following
circumstances:
(1) when a judgment of conviction has been entered against the
individual or entity by a Federal, State, or local court,
regardless of whether there is an appeal pending or whether the
judgment of conviction or other record relating to criminal conduct
has been expunged;
(2) when there has been a finding of guilt against the
individual or entity by a Federal, State, or local court;
(3) when a plea of guilty or nolo contendere by the individual
or entity has been accepted by a Federal, State, or local court; or
(4) when the individual or entity has entered into
participation in a first offender, deferred adjudication, or other
arrangement or program where judgment of conviction has been
withheld.
In the case at hand, sections 1128(i)(1) and (2) are clearly
applicable. FFCL 14, 15. Petitioner was found guilty by a jury,
and the court entered a judgment of conviction against Petitioner.
FFCL 5, 6. Thus, Petitioner must be regarded as having been
"convicted" for purposes of the mandatory exclusion law.
Next, the statute requires that the criminal offense must have been
related to the neglect or abuse of patients in connection with the
delivery of a health care item or service (although not necessarily
related to the Medicare or Medicaid programs).
In this regard, the undisputed evidence establishes that the abused
person was a 95-year-old patient at the Home, and that Petitioner,
in her capacity as a health care worker there, was performing a
patient care duty for this patient -- i.e., placing her in a
wheelchair -- at the time Petitioner struck her. 4/ I.G. Ex. 6;
FFCL 7, 8, 13. Petitioner's wilful use of unjustified and harmful
physical force under these circumstances reasonably constitutes
patient abuse in connection with the delivery of health care
services, within the meaning of section 1128(a)(2) of the Act.
Petitioner was convicted under N.Y. Pub. Health L. 2803-d(7),
which pertains to patient abuse, and states that "any person who
commits an act of physical abuse, neglect or mistreatment, . . .
shall be deemed to have violated this section and shall be liable
for a penalty pursuant to section twelve of this chapter. . . . "
I.G. Ex. 4. Thus, Petitioner's conviction for her act of physical
violence to a patient of the Home, satisfies the requirement of
section 1128(a)(2) that there be a conviction " . . . 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); FFCL 16.
Lastly, Petitioner maintains that she did not, in fact, strike the
patient at issue. Petitioner's Brief at 1 - 3, 5. However, under
section 1128(a)(2), proof that a relevant criminal conviction has
occurred ends the inquiry as to whether mandatory exclusion is
justified. See DeWayne Franzen, DAB 1165 (1990). The
administrative law judge is not authorized to look behind the
conviction to determine its validity (FFCL 19), or entertain claims
of innocence, or consider evidence intended to mitigate the minimum
mandatory exclusionary period. Peter J. Edmonson, DAB CR163
(1991), aff'd, DAB 1330 (1992); Richard G. Philips, D.P.M., DAB
CR133 (1991), aff'd, DAB 1279 (1991); Janet Wallace, L.P.N., DAB
CR155 (1991), aff'd, DAB 1326 (1992). An appellate panel of the
Departmental Appeals Board has held that the intent of the
individual in committing the criminal offense is not relevant under
section 1128(a)(2) of the Act. Summit Health Limited, DAB 1173
(1990). Consequently, Petitioner's explanations are not relevant
or material to the outcome of this case.
CONCLUSION
Petitioner's exclusion from the Medicare and Medicaid programs, for
at least five years, is mandated by sections 1128(a)(2) and
1128(c)(3)(B) of the Act because of her conviction of a criminal
offense related to the neglect or abuse of patients in connection
with the delivery of a health care item or service. FFCL 21.
Neither the I.G. nor an administrative law judge isauthorized to
reduce the five-year minimum mandatory period of exclusion. FFCL
20. Jack W. Greene, DAB CR19, aff'd, DAB 1078 (1989), aff'd sub
nom., Greene v. Sullivan, 731 F. Supp. 835, 838 (E.D. Tenn. 1990).
The five-year exclusion is, therefore, sustained.
_______________________
Joseph K. Riotto
Administrative Law Judge
1. In this decision, I refer to all programs from which
Petitioner has been excluded, other than Medicare, as "Medicaid."
2. The I.G. submitted a brief in support of her motion for
summary disposition. Petitioner submitted a letter dated January
5, 1995, which I construed to be her response brief. The I.G.
submitted a reply.
The I.G. submitted nine exhibits with her initial brief. I cite
the I.G.'s exhibits as "I.G. Ex. (number)." I admit into evidence
I.G. Exs. 1 - 9. Petitioner did not submit any exhibits.
3. I do not disclose the name of this individual, so as to
respect her privacy.
4. Petitioner herself does not deny that this person is a
nursing home patient. Petitioner's Brief at 2 - 3.