Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD
Civil Remedies Division
In the Case of: Douglas Edmund Foster, L.P.N., Petitioner,
- v. -
The Inspector General.
DATE: September 23, 1997
Docket No. C-97-250
Decision No. CR495
DECISION
By letter dated February 19, 1997, Douglas Edmund Foster,
L.P.N., the Petitioner herein, was notified by the
Inspector General (I.G.), United States Department of
Health and Human Services (HHS), that it had been decided
to exclude him 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.
explained that the five-year exclusion was mandatory
under section 1128(a)(2) of the Social Security Act (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. The I.G. moved for summary disposition. Because
I have determined that there are no material and relevant
factual issues in dispute (the only matter to be decided
is the legal significance of the undisputed facts), I
have decided the case on the basis of the parties'
written submissions in lieu of an in-person hearing. The
I.G. submitted a brief with eight proposed exhibits (I.G.
Exs. 1-8). Petitioner submitted a statement in response.
Petitioner did not submit any proposed exhibits with his
statement, nor did he object to the I.G.'s exhibits. I
admit I.G. Exs. 1-8 into evidence. The I.G. also filed a
motion to file a reply brief and a reply brief.
Petitioner made no objection. I have therefore granted
the I.G.'s motion and made her reply brief part of the
record before me.
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 minimum period of five years.
PETITIONER'S ARGUMENTS
Petitioner does not dispute the length of his exclusion,
but contends that the I.G acted improperly by excluding
him over three years after the date of his criminal
conviction. Petitioner contends that such exclusion
should have begun on the date of his conviction.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
1. At all times relevant hereto, Petitioner had been
licensed as a practical nurse in the states of Oklahoma
and Michigan. I.G. Exs. 3, 8.
2. During the period relevant herein, Petitioner was
employed as a licensed practical nurse at Hobart Good
Samaritan Center in Hobart, Oklahoma. I.G. Ex. 3.
3. On or about January 14, 1994, a criminal information
was filed in Kiowa County (Oklahoma) District Court, Case
No. CRM-94-15, against Petitioner. I.G. Ex. 4.
4. The criminal information charged Petitioner with one
count of aggravated assault and battery against E.P., a
nursing home patient. I.G. Ex. 4; see I.G. Ex. 3.
5. The criminal information alleged that Petitioner
picked up E.P. and threw her into a wheelchair, while
shouting and threatening her, and repeatedly slammed her
wheelchair into a wall. I.G. Ex. 4.
6. Petitioner was convicted in a jury trial for the
crime of aggravated assault and battery. I.G. Ex. 5.
7. On or about March 8, 1994, the Oklahoma court entered
judgment against Petitioner for the crime of aggravated
assault and battery and sentenced Petitioner to pay a
fine of $250. Id.
8. Petitioner's duties as a licensed practical nurse at
the Hobart Good Samaritan Center directly involved
patient care and the delivery of health care services.
9. Petitioner's conviction satisfies the definition of
"conviction" found in section 1128(i) of the Act for
purposes of mandatory exclusion.
10. Petitioner's conviction for aggravated assault and
battery was an offense relating to the abuse of a patient
in connection with the delivery of a health care item or
service, within the meaning of section 1128(a)(2) of the
Act.
11. The Secretary of HHS is required under section
1128(a)(2) of the Act to exclude Petitioner from
participation in the Medicare and Medicaid programs
because of his conviction.
12. The mandatory minimum period of exclusion for a
person convicted of a criminal offense relating to
neglect or abuse of patients in connection with the
delivery of a health care item or service is five years,
pursuant to sections 1128(a)(2) and 1128(c)(3)(B) of the
Act.
13. The Secretary has delegated to the I.G. the duty to
impose a mandatory exclusion when an individual is
convicted of an offense, pursuant to section 1128(a) of
the Act.
14. Petitioner is subject to the mandatory minimum
exclusion of five years for his conviction of a criminal
offense relating to neglect or abuse of a patient in
connection with the delivery of a health care item or
service.
15. The I.G. properly excluded Petitioner from
participation in the Medicare and Medicaid programs for a
period of five years, pursuant to sections 1128(a)(2) and
1128(c)(3)(B) of the Act.
DISCUSSION
To justify excluding an individual pursuant to section
1128(a)(2) of the Act, the I.G. must prove that: (1) the
excluded individual has been convicted of a criminal
offense; (2) the conviction is related to the abuse or
neglect of a patient; and (3) 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.
In the present case, I find, and Petitioner does not
dispute, that he was "convicted" of a criminal offense
within the meaning of sections 1128(i)(1) and (2) of the
Act. 2/ On March 8, 1994, the Oklahoma court entered a
judgment of conviction against Petitioner, satisfying
section 1128(i)(1). This judgment was based upon a jury
finding of guilt within the scope of section 1128(i)(2)
of the Act.
I further find that Petitioner's conviction for
aggravated assault and battery against a nursing home
patient must be deemed to be a conviction for abuse or
neglect of a patient within the scope of section
1128(a)(2) of the Act. A conviction need not be for an
offense called patient abuse or patient neglect; it need
only "relate" to neglect or abuse. Patricia Self, DAB
CR198 (1992). In Self, the petitioner was a nurse's aide
who pled nolo contendere to a charge of battery. The
petitioner allegedly struck a nursing home patient with
an electrical cord in the course of performing her
nurse's aide duties. The administrative law judge (ALJ)
held in the decision that it was sufficient that a party
is convicted of an offense based on charges of neglectful
or abusive conduct even if the crime of which that party
is convicted is not specifically labeled "neglect" or
"abuse." Id.
Petitioner in this case is a licensed practical nurse who
was employed at the Hobart Good Samaritan Nursing Home.
Petitioner does not dispute that, during the course of
his regular duties, he committed an aggravated assault
and battery upon E.P., a nursing home patient. According
to the criminal information, Petitioner picked E.P. up
and threw her into a wheelchair, while shouting and
threatening her, and repeatedly slammed her wheelchair
into a wall.
Although the terms "abuse" and "neglect" are not defined
within the Act, the term "abuse" is to include those
situations where a party willfully mistreats another
person. Thomas M. Cook, DAB CR51 (1989). In the present
case, Petitioner was convicted of aggravated assault and
battery for his abusive conduct towards E.P. described
above. A physical assault against an individual clearly
falls within the common and ordinary meaning of the term
"abuse." Self, supra.
E.P. was a "patient" within the meaning of the Act. See
I.G. Ex. 3. I find that Petitioner's abuse of E.P.
occurred in connection with the delivery of a health care
item or service. Petitioner's duties as a licensed
practical nurse directly involved patient care and the
delivery of health care services. Petitioner does not
dispute that he was an employee of the facility and had
the duty to assist in caring for E.P. when the assault
and battery occurred. Where an attack occurs in a health
care facility where the victim had been residing as a
patient and the perpetrator was an employee of the
facility whose duty was to assist in the care of
patients, the conviction is deemed to be related to the
delivery of health care. Patricia McClendon, DAB CR264
(1993).
In his statement, Petitioner asserts that his exclusion
should have begun on March 8, 1994, the date of his
conviction of aggravated assault and battery. I find no
merit in this claim. As a matter of law, an exclusion
must take effect 20 days from the date of the I.G.'s
notice of exclusion. Section 1128(c); 42 C.F.R. §
1001.2002. This means that Petitioner's exclusion took
effect 20 days after the I.G's February 19, 1997
exclusion letter and not 20 days after Petitioner's
conviction. Although Petitioner asserts that his
exclusion should be retroactive, an ALJ is without
authority to change the effective date of an exclusion.
Stanley Karpo, D.P.M., DAB CR356 (1995); Chander
Kachoria, R.Ph., DAB CR220 (1992), aff'd, DAB No. 1380
(1993); Laurence Wynn, M.D., DAB CR344 (1994); Samuel W.
Chang, M.D., DAB No. 1198 (1990). The effective date of
Petitioner's exclusion cannot be altered in this
proceeding. Furthermore, the I.G. has no authority to
make exclusions retroactive. Neither the ALJ nor the
I.G. can move the effective date of exclusion back to
Petitioner's original March 8, 1994 date of conviction.
In Kachoria, the petitioner argued that his exclusion was
unreasonable because the I.G. arbitrarily delayed
imposing the exclusion. An appellate panel of the DAB
ruled, however, that neither the statute nor the
regulations set any specific deadline for the I.G. to act
once an individual becomes subject to exclusion due to a
conviction. Kachoria, DAB No. 1330, at 10 (citing
Douglas Schram, R.Ph., DAB No. 1372, at 10 (1992) and
Chang, DAB No. 1198, at 13-16 (1990)). Consequently, I
find that the time which has elapsed between Petitioner's
conviction and the receipt of the exclusion letter from
the I.G. does not violate Petitioner's due process
rights.
CONCLUSION
Sections 1128(a)(2) and 1128(c)(3)(B) of the Act mandate
that Petitioner herein be excluded from the Medicare and
Medicaid programs for a period of at least five years
because he was convicted of a criminal offense related to
the neglect or abuse of a patient in connection with the
delivery of a health care item or service. The five-year
exclusion is therefore sustained.
Joseph K. Riotto
Administrative Law Judge
* * * Footnotes * * *
1. In this decision, I use the term "Medicaid"
to refer to these State health care programs.
2. For Petitioner to be "convicted" of a
criminal offense within the meaning of section 1128(i) of
the Act, it is necessary to find that one of the four
subsections of section 1128(i) has been satisfied. Here,
I find that Petitioner's conviction fell within two
subsections.