$05:Exclusion Case
Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD
Civil Remedies Division
In the Case of:
Jacqueline L. Dennis, R.N.,
Petitioner,
- v. -
The Inspector General.
DATE: December 1, 1995
Docket No. C-95-124
Decision No. CR404
DECISION
By letter dated April 17, 1995, Jacqueline L. Dennis, R.N., 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 Petitioner 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 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 Act because Petitioner had been convicted of a criminal offense
relating to the neglect or abuse of patients in connection with the
delivery of a health care item or service.
Petitioner filed a request for review of the I.G.'s action by an
administrative law judge of the Departmental Appeals Board (DAB).
During the prehearing conference call with the parties on May 26,
1995, both parties agreed that the case could be decided by
submission of written documentation and that an in-person
evidentiary hearing was not necessary. Order and Schedule for
Filing Briefs and Documentary Evidence, dated June 1, 1995.
Because I 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 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.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
1. During the period relevant to this case, Petitioner was a
registered nurse in Rochester, New York.
2. On March 16, 1994, Petitioner was charged in a criminal
information, brought in the City Court of Rochester, County of
Monroe, with four counts of willful violation of the health laws,
in violation of section 12-b(2) and 2803-d(7) of the New York State
Public Health Law and Part 81.1(c) of the regulations promulgated
thereunder and three counts of falsifying business records in the
second degree, in violation of section 175.05(1) of the New York
State Penal Law. I.G. Exs. 1, 7.
3. The information alleged that Petitioner, while working at St.
Ann's Home for the Aged in Rochester, New York, had willfully
failed to provide appropriate treatment to patients in her care by
failing to irrigate a patient's catheter, even though this had been
ordered by the doctor, and by failing to properly treat bedsores of
two other patients as had been ordered by their physicians.
Allegedly, Petitioner thereupon made false entries on these
patients' charts to falsely indicate that she had performed these
services. I.G. Exs. 1, 4 - 6.
4. On August 31, 1994, Petitioner was found guilty after a jury
trial of four counts of willful violation of the health laws and
three counts of falsifying business records in the second degree.
I.G. Exs. 7, 8.
5. On October 25, 1994, Petitioner was sentenced to 60 days in
jail, three years' probation, and a $500 fine. I.G. Ex. 9 at 16 -
17.
6. On June 13, 1994, in a separate criminal proceeding in the
County of Monroe, Gates Town Court, Petitioner was charged with two
counts of willful violation of the health laws, in violation of
section 12-b(2) and 2803-d(7) of the New York State Public Health
Law and Part 81.1(c) of the regulations and two counts of
falsifying business records in the second degree, in violation of
section 175.05(1) of the New York State Penal Law. I.G. Exs. 10,
16.
7. The criminal information in Finding 6 alleged that Petitioner,
while employed as a registered nurse at Westgate Nursing Home in
Gates, New York, willfully failed to provide adequate and
appropriate services, treatment, and care to two patients by
failing to perform a blood glucose test as ordered by these
patients' physicians, and then, with intent to defraud, did make
false entries in their medical charts indicating that the patients
had certain blood glucose values when, in fact, these tests had not
been done. I.G. Exs. 10 - 13.
8. On November 16, 1994, Petitioner pled guilty in the Gates
Justice Court to one count of willful violation of the health laws
in satisfaction of the four-count criminal information and was
sentenced to 60 days in jail and three years' probation to run
concurrently with the sentence Petitioner received in October for
her previous conviction. Finding 6; I.G. Exs. 14, 15.
9. It is undisputed that the individuals neglected or abused by
Petitioner were patients at either St. Ann's Home for the Aged or
the Westgate Nursing Home at the time, and that Petitioner had been
expressly assigned to care for them. I.G. Exs. 1 - 6, 11 - 14.
10. On April 17, 1995, the I.G. notified Petitioner that she was
being excluded for a period of five years from participation in the
Medicare and Medicaid programs based on her conviction, in the
State of New York, Monroe County Court, of a criminal offense
relating to neglect or abuse of patients in connection with the
delivery of a health care item or service.
11. 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 (May 13, 1983).
12. The entry of a judgment of conviction against Petitioner in
the County of Monroe, in either the City Court of Rochester or the
Gates Town Court, constitutes a conviction of a criminal offense
within the meaning of section 1128(a)(2) and 1128(a)(i) of the Act.
I.G. Ex. 8.
13. The convictions of the criminal offenses at issue here relate
to the neglect or abuse of patients 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. Pursuant to section 1128(a)(2) of the Act, the I.G. is
required to exclude Petitioner from participating in Medicare and
Medicaid.
15. The minimum mandatory period of exclusion pursuant to section
1128(a)(2) is five years. Act, section 1128(c)(3)(B).
16. Under section 1128(a)(2) of the Act, the fact that a
conviction within the meaning of section 1128(i) has occurred
mandates exclusion.
17. Neither the I.G. nor an administrative law judge is authorized
to reduce the length of a mandatory five-year period of exclusion.
18. 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.
DISCUSSION
The I.G. excluded Petitioner from participating in Medicare and
directed that Petitioner be excluded from 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 law relied upon by the I.G. to exclude Petitioner requires,
initially, that Petitioner has been convicted of a criminal
offense. Petitioner, a registered nurse, was charged with
unlawfully failing to care for several elderly individuals at St.
Ann's Home for the Aged who had been entrusted to her for care. A
jury found Petitioner guilty of violating New York law and a judge
sentenced her. Additionally, in a separate criminal proceeding,
Petitioner was convicted of a willful violation of the public
health laws in connection with her failure to administer a blood
glucose test to a patient in the Westgate Nursing Home.
Section 1128(i) of the Act provides that an individual will be
deemed "convicted" 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 judgement of conviction has been
withheld.
In the case at hand, sections 1128(i)(1) and (2) both apply and
thus I find Petitioner "convicted" for purposes of the mandatory
exclusion law.
Next, the statute requires that the criminal activity must have
been related to the delivery of health care items or services
(although not necessarily related to the Medicaid or Medicare
programs). It is undisputed that Petitioner was employed as a
registered nurse at both St. Ann's Home for the Aged and Westgate
Nursing Home and that the victims were patients who had been
formally placed in her care. It is also true that, in the
circumstances surrounding each of her convictions, Petitioner
failed to provide services to patients and then falsified records
to indicate that she had provided these services. Thus,
Petitioner's entire relationship with these individuals, including
the crimes she committed against them, was based upon the delivery
of health care items or services, as required by section
1128(a)(2).
The final requirement of section 1128(a)(2) is that the persons
victimized have been subjected to neglect or abuse. Although
neither of these terms is defined in the statute, I regard it as
self-evident that Petitioner's
violation of physicians' direct orders by failing to (1) irrigate
a patient's catheter; (2) properly treat two patients' bedsores;
and (3) administer a blood glucose test resulted in these patients
suffering pain or harm and constitutes neglect and abuse within the
meaning of the statute. Petitioner's attempts to hide her misdeeds
by falsifying patients' charts to give the impression that she had
performed services which she did not also constitutes neglect and
abuse under the statute.
Petitioner claims that she has been wrongly accused and is not
guilty of the offenses of which she has been convicted.
Specifically, Petitioner claims that she did not receive a fair
trial in the City Court of Rochester in that the judge was biased
against her, her colleagues lied under oath, and her attorney was
not diligent in presenting her case. These allegations, however,
are not relevant here. Petitioner may not use these administrative
proceedings to relitigate questions presented to and resolved by
the State court. The statute requires that the Petitioner only be
"convicted." If Petitioner believes that she was unfairly
convicted, she may pursue this question in the State or federal
courts, but not in this forum. Under section 1128(a)(2), proof
that a relevant criminal conviction has occurred ends the inquiry
as to whether mandatory exclusion is justified. DeWayne Franzen,
DAB 1165 (1990). I am not authorized to look beyond the fact of
conviction, or entertain claims of innocence, or consider evidence
intended to mitigate the minimum exclusionary period.
Consequently, Petitioner's explanations are not relevant or
material to the outcome of this case.
CONCLUSION
Petitioner's exclusion, for at least five years, is mandated by
sections 1128(a)(2) and 1128(c)(3)(B) of the Act because of either
of her convictions of a criminal offense relating to the neglect or
abuse of patients in connection with the delivery of a health care
item or service.
Joseph K. Riotto
Administrative Law Judge