Lee G. Balos, CR No. 378 (1995)

$05:Exclusion Case

Department of Health and Human Services

DEPARTMENTAL APPEALS BOARD

Civil Remedies Division


In the Case of:

Lee G. Balos,

Petitioner,

- v. -

The Inspector General.

DATE: June 2, 1995
Docket No. C-95-025
Decision No. CR378


DECISION

By letter dated September 20, 1994, the Inspector General (I.G.) of
the United States Department of Health and Human Services (DHHS)
notified Lee Balos (Petitioner), that he was being excluded from
participation in the Medicare, Medicaid, Maternal and Child Health
Services Block Grant and Block Grants to States for Social Services
programs for a period of five years. 1/ The I.G. advised
Petitioner that he was being excluded as a result of his conviction
of a criminal offense relating to neglect or abuse of patients in
connection with the delivery of a health care item or service. The
I.G. advised Petitioner that the exclusion of individuals convicted
of such offenses is mandated by section 1128(a)(2) of the Social
Security Act (Act). The I.G. further advised Petitioner that for
exclusions imposed pursuant to section 1128(a)(2) of the Act,
section 1128(c)(3)(B) requires a five-year minimum period of
exclusion.

Petitioner filed a request for review of the I.G.'s action. This
case was initially assigned to Judge Joseph K. Riotto for hearing
and decision, and then it was reassigned to me. During a
prehearing conference held by Judge Riotto on November 23, 1994,
the parties agreed to proceed by written submissions. Accordingly,
Judge Riotto established a schedule for the parties to file briefs
and documentary evidence.

Thereafter, the I.G. filed a brief, including a statement
enumerating the material facts and conclusions of law the I.G.
considered to be uncontested. The I.G.'s brief was accompanied by
seven exhibits which I identify as I.G. Ex. 1 through 7.
Petitioner responded with a brief, including a response to the
I.G.'s proposed findings of fact and conclusions of law and an
additional statement enumerating material facts and conclusions of
law Petitioner considered to be uncontested. Petitioner's
responsive brief was accompanied by 13 exhibits which I identify as
P. Ex. 1 through 13. The I.G. filed a reply and Petitioner filed
a sur-reply.

Petitioner has not contested the admissibility of the seven
exhibits submitted by the I.G. I admit into evidence I.G. Ex. 1
through 7. The I.G. has not contested the admissibility of the 13
exhibits submitted by Petitioner. I admit into evidence P. Ex. 1
through 13.

I have considered the parties' arguments, supporting exhibits, and
the applicable law. I conclude that there are no material factual
issues in dispute (i.e., the only matter to be decided is the legal
significance of the undisputed facts). I conclude also that
Petitioner is subject to the minimum mandatory exclusion provisions
of sections 1128(a)(2) and 1128(c)(3)(B) of the Act, and I affirm
the I.G.'s determination to exclude Petitioner from participation
in Medicare and Medicaid for a period of five years.

FINDINGS OF FACT AND CONCLUSIONS OF LAW (FFCLs)

1. During the period relevant to this case, Petitioner was
employed as a certified registered nurse anesthetist (CRNA) by
Waterville Osteopathic Hospital (WOH) in Waterville, Maine. I.G.'s
Proposed FFCLs, paragraph 1; Petitioner's Response to I.G.'s
Proposed FFCLs, paragraph 1.

2. On July 23, 1991, a nurse in a operating room at WOH reported
that Petitioner was acting inappropriately in the operating room.
The nurse observed Petitioner to be "dopey or high." I.G. Ex. 3,
p. 1; Petitioner's Proposed FFCLs, paragraph 1.

3. Upon learning this, Petitioner's supervisor went into the
operating room and observed that Petitioner had heavy eyelids and
slurred speech. Petitioner's supervisor observed also that
Petitioner had filled out incorrect times on the operating room
anesthetic record completed by him. I.G. Ex. 3, p. 1; P. Ex. 10,
p. 1.

4. Petitioner's supervisor suspected that Petitioner was
performing his CRNA duties while under the influence of drugs, and
he requested Petitioner to submit a urine sample for drug testing.
I.G. Ex. 3, pp. 1 - 2.

5. The results of the drug test were positive. P. Ex. 10, p. 2.

6. When confronted with the results of the drug test, Petitioner
admitted that he had a problem with drug dependency. P. Ex. 10, p.
2.

7. When confronted with the results of the drug test, Petitioner
took affirmative steps to notify hospital authorities that he had
removed ampules of drugs from WOH's anesthesia department and
replaced the drugs with ampules filled with a sterile saline
solution. I.G. Ex. 4, 5.

8. Petitioner informed hospital authorities that the drug cupboard
contained ampules of saline solution in an effort to ensure that no
patient would be harmed. FFCL 7; I.G. Ex. 4, 5.

9. On April 8, 1992, the State of Maine filed a three count
criminal information against Petitioner in the Superior Court for
Kennebec County (the court). I.G. Ex. 1.

10. Count 1 of the information charged Petitioner with the offense
of endangering the welfare of an incompetent person. The
information alleged that Petitioner knowingly endangered the
health, safety or mental welfare of a person who is unable to care
for himself by performing CRNA functions such as administering
anesthesia while impaired by the scheduled drugs sufentanil and
morphine. I.G. Ex. 1.

11. Count 2 of the information charged Petitioner with the offense
of stealing drugs. The information alleged that Petitioner
committed the theft of the scheduled drugs sufentanil and morphine
from WOH. I.G. Ex. 1.

12. Count 3 of the information charged Petitioner with the offense
of reckless conduct. The information alleged that Petitioner
recklessly created a substantial risk of serious bodily injury to
patients at WOH by tampering with the scheduled drugs sufentanil
and morphine which were used by WOH personnel to provide patients
relief from pain during surgery. I.G. Ex. 1.

13. On April 9, 1992, Petitioner entered a plea of guilty to all
three counts of the information. I.G. Ex. 2, p. 1.

14. The court accepted Petitioner's guilty plea and found him
guilty of the offenses of endangering the welfare of an incompetent
person, stealing drugs, and reckless conduct as charged. I.G. Ex.
2, p. 1.

15. Based on its acceptance of Petitioner's guilty plea, the court
sentenced Petitioner to 364 days of imprisonment on each count,
sentence suspended, placed him on probation for one year, and fined
him $1650. As a special condition of probation, the court ordered
Petitioner to abstain from the possession and use of alcohol and
drugs, except upon the prescription of a licensed physician, and to
participate in an alcohol and substance abuse treatment program.
I.G. Ex. 2, p. 1.

16. The Secretary of DHHS has delegated to the I.G. the authority
to determine, impose, and direct exclusions pursuant to section
1128 of the Act. 48 Fed. Reg. 21662 (1983).

17. Petitioner's guilty plea, and the court's acceptance of that
plea, constitute a conviction of a criminal offense within the
meaning of sections 1128(a)(2) and 1128(i) of the Act. FFCLs 9 -
15; I.G.'s Proposed FFCLs, paragraph 20; Petitioner's Response to
I.G.'s Proposed FFCLs, paragraph 20.

18. Petitioner's conviction for the offense of endangering the
welfare of an incompetent person
constitutes a conviction of a criminal offense relating to neglect
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.
FFCLs 1 - 6, 9 - 10, 13 - 15, 17.

19. Petitioner's conviction for the offense of reckless conduct
constitutes a conviction of a criminal offense relating to neglect
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.
FFCLs 1, 7 - 9, 12 - 15, 17.

20. Pursuant to section 1128(a)(2) of the Act, the I.G. is
required to exclude Petitioner from participating in Medicare and
Medicaid.

21. The minimum mandatory period of exclusion pursuant to section
1128(a)(2) is five years. Act, section 1128(c)(3)(B).

22. The I.G. properly excluded Petitioner from participation in
Medicare and Medicaid for a period of five years pursuant to
sections 1128(a)(2) and 1128(c)(3)(B) of the Act.

23. The determination of the I.G. to impose and direct a five-year
exclusion in this case does not violate Petitioner's right to equal
protection of the law under the United States Constitution.

24. Neither the I.G. nor an administrative law judge has the
authority to reduce the five-year minimum exclusion mandated by
sections 1128(a)(2) and 1128(c)(3)(B) of the Act.

DISCUSSION

The I.G. excluded Petitioner from participating in Medicare and
directed that Petitioner be excluded form participating in
Medicaid, pursuant to section 1128(a)(2) of the Act. This section
mandates the exclusion of individuals who are:

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.

The I.G.'s authority to impose and direct an exclusion under
section 1128(a)(2) is based on the fulfillment of the following
statutory criteria: (1) conviction of a criminal offense, (2)
relating to neglect or abuse, (3) of patients, and (4) in
connection with the delivery of a health care item or service.

The first criterion that must be satisfied in order to establish
that the I.G. had the authority to exclude Petitioner under section
1128(a)(2) is that Petitioner must be convicted of a criminal
offense. Petitioner does not dispute that he was convicted of a
criminal offense within the meaning of the Act. The undisputed
facts establish that Petitioner entered a guilty plea to the
offenses of endangering the welfare of an incompetent person,
stealing drugs, and reckless conduct in the Superior Court for
Kennebec County, Maine, and that the court accepted Petitioner's
guilty plea. FFCLs 9 - 15. The Act defines the term "convicted of
a criminal offense" to include those circumstances in which a plea
of guilty by an individual has been accepted by a federal, State,
or local court. Act, section 1128(i)(3). Therefore, I conclude
that Petitioner was convicted of a criminal offense within the
meaning of sections 1128(a)(2) and 1128(i) of the Act.

The second criterion that must be satisfied in order to find that
the I.G. had the authority to exclude Petitioner under section
1128(a)(2) is that criminal offense must relate to neglect or abuse
of another individual. The undisputed facts that Petitioner was
convicted of three criminal offenses: (1) endangering the welfare
of an incompetent person, (2) stealing drugs, and (3) reckless
conduct. The I.G. contends that the offenses endangering the
welfare of an incompetent person and reckless conduct which formed
the basis of Petitioner's conviction are related to neglect of
another individual. Petitioner contends, however, that these
offenses are not related to neglect, within the meaning of section
1128(a)(2) of the Act. 2/

The information to which Petitioner pled guilty does not
specifically refer to neglect. Petitioner was convicted of the
offenses of endangering the welfare of an incompetent person and
reckless conduct. I conclude that these offenses relate to
"neglect" of another individual, as that term is used in section
1128(a)(2) of the Act.

Congress could have conditioned imposition of the exclusion remedy
on conviction of criminal offenses consisting of patient neglect.
Had it used the term "of" instead of the term "relating to" in
section 1128(a)(2), that intent would have been apparent. However,
Congress intended that the exclusion authority under section
1128(a)(2) apply to a broader array of circumstances. It mandated
that the Secretary exclude providers who are convicted of criminal
offenses "relating to" patient neglect in connection with the
delivery of a health care item or service. The question before me
is whether the criminal offense which formed the basis of the
conviction relates to neglect, not whether the court convicted
Petitioner of an offense called "patient neglect."

The term neglect is not defined in section 1128(a)(2). In the
absence of a definition, the term must be defined according to its
common and ordinary meaning. Case law precedent has consistently
held that based on the common definition of neglect, Congress
intended the statutory term neglect to include failure by a party
to satisfy a duty of care to another person. Thomas M. Cook, DAB
CR51 (1989); Rosette Elliott, DAB CR84 (1990). Moreover, neglect
can be unintentional, as there is nothing in the definition
suggesting that there must be a purposeful or malicious failure to
act. Janet Wallace, L.P.N., DAB 1326 (1992).

Petitioner was convicted of endangering the welfare of an
incompetent person in violation of Title 17-A, section 555 of the
statutes of the State of Maine. In Olian Small, DAB CR136 (1991),
the petitioner was convicted of the same offense under the same
Maine statute. The petitioner in Small was a nurse's
aide/medication technician who committed the offense endangering
the welfare of an incompetent person by failing to administer
medications to nursing home patients and falsifying the patients'
records in an attempt to conceal that fact. The administrative law
judge in Small found that the petitioner's offense was related to
neglect, within the meaning of section 1128(a)(2).

In reaching this conclusion, the administrative law judge in Small
pointed out that the Maine statute under which the petitioner was
convicted defines endangering in terms which are almost identical
to the common definition of neglect:

As used in this section, `endangers' includes a failure to act
only when the defendant had a legal duty to protect the health,
safety or mental welfare of the incompetent person.

Me. Rev. Stat. Ann. tit. 17-A, 555; see I.G.'s Brief, footnote
1. The administrative law judge in Small reasoned that the
petitioner's duties as a nurse's aide/medication technician
includes the duty to administer medications. His failure to do so
constituted an act of "neglect" within the meaning of section
1128(a)(2).

Although the facts in the present case are not on all fours with
the facts of Small, the rationale used by the administrative law
judge in deciding that case can be applied here. In this case,
count 1 of the criminal information establishes that Petitioner
committed the offense of endangering the welfare of an incompetent
person by "perform[ing] C.R.N.A. functions such as administering
anesthesia while impaired by scheduled drugs." The statutory
elements of Petitioner's offense establish that by administering
anesthesia while impaired by scheduled drugs, Petitioner failed to
satisfy a legal duty of care he owed to an incompetent person.

The common material element in both Small and this case is that, in
both cases, the criminal offense involved a failure to satisfy a
duty of care owed to another individual. In both cases, the
petitioners were convicted of the offense of endangering the
welfare of an incompetent person. The legal definition of that
offense, under Maine State law, encompasses the same conduct that
constitutes "neglect" under federal law. Therefore, Petitioner's
offense was related to neglect, within the meaning of section
1128(a)(2) of the Act.

Petitioner's offense of reckless conduct in violation of section
211 of Title 17-A of the Maine statutes also relates to neglect,
within the meaning of section 1128(a)(2) of the Act. Count 3 of
the criminal information to which Petitioner pled guilty
establishes that Petitioner committed this offense by "tampering
with scheduled drugs, to wit, sufentanil and morphine, which were
utilized by Waterville Osteopathic Hospital personnel for purposes
of alleviating pain during surgery." The information establishes
that through such acts, Petitioner "recklessly create[d] a
substantial risk of serious bodily injury to patients" at the
hospital.

As a CRNA at WOH, Petitioner owed the patients at WOH a duty to
care for them in a manner that would not create a substantial risk
of serious bodily injury. By tampering with WOH's supply of drugs
intended for patients at WOH, Petitioner neglected this duty of
care. I conclude that reckless conduct that creates a substantial
risk of bodily injury falls within the common definition of
"neglect." Therefore, Petitioner's conviction for the offense
reckless conduct is plainly a conviction for an offense related to
"neglect," within the meaning of section 1128(a)(2). See Rossette
Elliott, DAB CR84 (1990).

Petitioner appears to argue that no neglect has occurred since the
I.G. has not shown that any individual suffered ill effects as a
result of Petitioner's care. I disagree. The Petitioner in Small
made a similar argument. Nevertheless, the administrative law
judge in Small upheld the exclusion imposed under section
1128(a)(2) in the absence of any proof of actual harm to patients.
In rejecting the petitioner's argument in Small, the administrative
law judge referred to the common and ordinary meaning of neglect,
failure by a party to satisfy a duty of care owed to another, and
found that it does not make any reference to harm caused by such
failure. Small, DAB CR136 at 7.

What remains to be determined is whether the neglect of which
Petitioner was convicted was neglect of a patient and whether it
occurred in connection with the delivery of a health care item or
service. Petitioner does not dispute that his criminal offenses
involved patients and occurred in connection with the delivery of
a health care item or service. Indeed, the relevant counts to
which Petitioner pled guilty establish that the offenses involved
patients in connection with the delivery of a health care item or
service.

The information establishes that Petitioner committed the offense
of endangering the welfare of an incompetent person in the course
performing his CRNA functions. Specifically, Petitioner committed
this offense while he was administering anesthesia to a patient.
The information establishes also that Petitioner committed the
offense of reckless conduct when he tampered with drugs which were
intended for the use of patients at a hospital for the purpose of
alleviating pain during surgery. I conclude that the language of
the information on its face establishes that the neglect of which
Petitioner was convicted involved patients and occurred in
connection with the delivery of a health care item or service.

Petitioner seeks to invalidate his exclusion by contending that the
I.G. treated him differently than other similarly-situated health
care practitioners. Petitioner argues that the I.G. has in several
other cases imposed "permissive exclusions" under section 1128(b)
of the Act against health-care providers who, like himself, have
been "convicted of drug-related crimes and who have endangered or
jeopardized their patients' safety due to their addictions."
Petitioner's Brief, p. 12. Petitioner argues that based on the
I.G.'s action in these other cases, he should receive only a
permissive exclusion. Petitioner argues also that in treating him
differently by excluding him under the mandatory provision, the
I.G. is violating Petitioner's constitutional right to equal
protection under the law.

I am not persuaded by Petitioner's argument. None of the providers
in the cases cited by Petitioner was convicted of the specific
criminal offenses which formed the basis for Petitioner's
exclusion. For example, in several of the cases cited by
Petitioner, the excluded providers were convicted of criminal
offenses involving theft or unlawful distribution of a controlled
substance. These offenses do not necessarily by themselves provide
a basis for an exclusion under section 1128(a)(2), given that a
provider may steal or unlawfully distribute controlled substances
without neglecting any duties owed to a patient. I assume that the
I.G. determined that under the facts of the cases cited by
Petitioner the relevant offenses did not fall within the parameters
of the mandatory exclusion provisions of section 1128(a)(2). Once
that determination was made, the I.G. was free to determine whether
the offenses merited a permissive exclusion. 3/

Since the parties in the cases cited by Petitioner did not raise
the issue of whether the I.G. should have treated the provider's
conviction as the basis for a mandatory exclusion action, the
I.G.'s choice to proceed under the permissive exclusion authority
was not subjected to the scrutiny of the administrative law judges
reviewing those cases. Moreover, even if the I.G. misapplied the
law in other cases involving similarly situated providers, that
does not invalidate the exclusion in this case. Nicholas J. Penna,
D.M.D., DAB CR338 (1994).

In this case, the I.G. made the determination that Petitioner's
offenses were governed by section 1128(a)(2) of the Act. Once that
determination was made, she had no discretion to impose anything
other than a mandatory exclusion. Petitioner challenged this
determination and asked that it be reviewed by an administrative
law judge. I have carefully reviewed the record in this case, and
conclude that the I.G. properly classified Petitioner's offenses as
falling under the mandatory exclusion authority of section
1128(a)(2) of the Act. The law requires that Petitioner be
excluded for at least five years. Act, section 1128(c)(3)(B).

The determination of the I.G. to impose and direct an exclusion in
this case does not violate Petitioner's right to equal protection
of the law under the United States Constitution. The I.G. is
merely carrying out the specific directive of section 1128 of the
Act that a criminal conviction of an offense related to the
delivery of an item or service mandates an exclusion of at least
five years. I see nothing unreasonable or inequitable in the
I.G.'s exclusion of Petitioner.


CONCLUSION

Based on the law and the undisputed material facts in this case, I
conclude that the I.G. properly excluded Petitioner from Medicare
and Medicaid pursuant to section 1128(a)(2) of the Act. I further
conclude that the five-year minimum period of exclusion imposed and
directed against Petitioner is mandated by section 1128(c)(3)(B) of
the Act.


Jill S. Clifton
Administrative Law Judge

1. In this decision, I refer to all programs from which
Petitioner has been excluded, other than Medicare, as "Medicaid."

2. Since the I.G. does not argue that the offense of stealing
drugs is related to neglect or abuse, I do not address that issue
in this decision. In addition, while the I.G. tracks the language
of section 1128(a)(2) of the Act in her statement of proposed FFCLs
by using the term abuse together with the term of neglect, she does
not argue that Petitioner's criminal offenses relate to abuse.
Accordingly, I do not address the issue of whether Petitioner's
offenses relate to abuse in this decision.

3. It is noteworthy that the Petitioner in this case was
convicted of the offense of stealing drugs, but the I.G. did not
base its authority to exclude under section 1128(a)(2) on that
offense. In her reply brief, the I.G. stated that had stealing
drugs been the only offense of which Petitioner was convicted, the
I.G. would not have excluded him under section 1128(a)(2) of the
Act.