Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD
Civil Remedies Division
In the Case of: Michelle Burnette, R.N., Petitioner,
- v. -
The Inspector General.
DATE: September 23, 1997
Docket No. C-97-253
Decision No. CR496
DECISION
By letter dated February 25, 1997, the Inspector General
(I.G.), United States Department of Health and Human
Services (HHS), notified Michelle Burnette, R.N.
(Petitioner), that she would be 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. explained that the five-year
exclusion was mandatory under 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 request for review of the I.G.'s
action. I convened a prehearing conference on May 20,
1997. During the conference, the parties agreed that the
case could be heard and decided based on a written
record. The I.G. submitted a brief accompanied by five
proposed exhibits. (I.G. Ex. 1 - 5). Petitioner
submitted a response brief. The I.G. submitted a reply
brief. Petitioner did not object to the five exhibits
submitted by the I.G. and I receive into evidence I.G.
Ex. 1 - 5.
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.
PETITIONER'S ARGUMENT
Petitioner contends that her plea of no contest cannot be
used as a basis to exclude her from program
participation. She also maintains that exclusion under
section 1128(a)(2) of the Act contemplates conviction of
serious felonies, not simple assault (a misdemeanor) of
the sort committed by Petitioner. Finally she asserts
that by excluding her from program participation for a
greater period than that imposed by the State Board of
Nursing, the I.G. is inflicting cruel and unusual
punishment.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
1. At all times relevant herein, Petitioner was a
registered nurse who was employed at Hosmer Senior
Citizens' Home. I.G.'s Proposed Findings of Fact #1;
Petitioner's Response Brief at 2; I.G. Ex. 1.
2. Petitioner's duties as a nurse at the Hosmer Senior
Citizens' Home included providing care to patients at
that facility. I.G.'s Proposed Findings of Fact #2;
Petitioner's Response Brief at 2; I.G. Ex. 1.
3. In a proceeding before the South Dakota Board of
Nursing on July 18, 1996, Petitioner stipulated that
during the course of her employment as a registered nurse
at Colonial Manor and Hosmer Senior Citizens' Home during
the period from February 18, 1996 through June 17, 1996,
she allegedly was involved in two incidents in which she
engaged in abusive conduct against persons entrusted to
her care. I.G. Ex. 1.
4. Petitioner waived her right to a hearing on the
charges of abuse and agreed to enter into a Stipulation
and Order which placed her nursing license on a
probationary status for two years. The South Dakota
Board of Nursing approved the Stipulation and Order.
I.G. Ex. 1.
5. On or about September 23, 1996, a criminal
Information was filed in the Fifth Judicial Circuit
Court, Edmunds County, South Dakota. Count I of the
Information charged Petitioner with the felony offense of
abuse of a disabled adult. Count II charged Petitioner
with the misdemeanor offense of simple assault, alleging
that on June 17, 1996, Petitioner intentionally caused
bodily injury to Reuben Holwager, a nursing home patient,
which did not result in serious bodily injury. I.G. Ex.
2, 3; I.G. Proposed Findings of Fact #5 - 7; Petitioner's
Response Brief at 2.
6. On November 5, 1996, Petitioner entered into a plea
of no contest to the charge of simple assault, Count II
of the criminal Information. I.G. Ex. 3.
7. The Fifth Judicial Circuit Court accepted
Petitioner's no contest plea. Based on this acceptance,
the court entered a judgment of conviction against
Petitioner on the charge of simple assault, Count II of
the criminal Information. I.G. Ex. 3.
8. Petitioner was sentenced to serve fifteen days in
jail. The sentence was suspended on the condition that
Petitioner pay court costs in the amount of $26.50 and
transcript fees in the amount of $94.50; and that
Petitioner comply with the terms of the South Dakota
Board of Nursing Stipulation and Order which the court
incorporated into the Judgment of Conviction. I.G. Ex.
3; I.G. Proposed Findings of Fact #10; Petitioner's
Response Brief at 2.
9. Petitioner's plea of no contest, and the court's
acceptance of that plea, constitutes a conviction within
the meaning of section 1128(i)(3) of the Act.
10. The court's entry of judgment against Petitioner
constitutes a conviction within the meaning of section
1128(i)(1) of the Act.
11. Petitioner was convicted of a criminal offense
relating 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.
12. The Secretary of HHS has delegated to the I.G. the
authority to determine and impose exclusions pursuant to
section 1128 of the Act.
13. Pursuant to section 1128(a)(2) of the Act, the I.G.
is required to exclude Petitioner from participating in
Medicare and Medicaid programs.
14. The minimum mandatory period for exclusions pursuant
to section 1128(a)(2) of the Act is five years.
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.
16. Neither the I.G. nor the administrative law judge
(ALJ) 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
To justify excluding an individual pursuant to section
1128(a)(2) of the Act, the I.G. must prove that: (1) the
individual charged has been convicted of a criminal
offense; (2) the conviction is related to the neglect or
abuse of patients; 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.
The first criterion that must be satisfied in order to
establish that the I.G. has the authority to exclude
Petitioner under section 1128(a)(2) of the Act is that
Petitioner must have been convicted of a criminal
offense. Section 1128(i) of the Act defines when a
person has been convicted for purposes of an exclusion.
I find that Petitioner was "convicted" of a criminal
offense within the meaning of sections 1128(i)(1) and (3)
of the Act. 2/
In this case, Petitioner admits that she pled no contest
to the charge of simple assault, but she argues that the
I.G. lacks authority to exclude her because this type of
plea does not constitute a "conviction" within the
meaning of the Act. I disagree.
Section 1128(i)(3) of the Act expressly provides that
when a person enters a plea of nolo contendere to a
criminal charge and the court accepts such plea, the
individual will be regarded as having been "convicted"
within the meaning of the mandatory exclusion provisions
of the Act. The undisputed evidence of record
establishes that Petitioner pled no contest to the charge
of simple assault and that the court entered a judgment
of conviction against Petitioner based on her plea. The
record shows that Petitioner pled no contest in order to
dispose of the criminal charge against her, and that the
court disposed of the case based on its receipt of
Petitioner's plea. This transaction amounts to
"acceptance" of a plea within the meaning of section
1128(i)(3) of the Act, and Petitioner was therefore
"convicted" of a criminal offense within the meaning of
that provision. Carlos E. Zamora, M.D., DAB CR22 (1989),
aff'd DAB No. 1104 (1989); Anthony Tommasiello, DAB CR282
(1993).
In addition, section 1128(i)(1) of the Act provides that
an individual is "convicted" of a criminal offense "when
a judgment of conviction has been entered against the
individual . . . by a Federal, State, or local court."
The undisputed evidence shows that a judgment of
conviction was entered against Petitioner by the court,
and this establishes that Petitioner was convicted of a
criminal offense pursuant to section 1128(i)(1) of the
Act.
I conclude also that the offense of which Petitioner was
convicted related to the abuse 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
that case, 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. The ALJ held that it was sufficient
that a party is convicted of an offense based on charges
of abusive conduct, even if the crime of which that party
is convicted is not specifically labeled "abuse."
In this case, Petitioner pled no contest to the charge of
simple assault. The Information to which she pled no
contest alleged that she intentionally caused bodily
injury to another in an incident which occurred on June
17, 1996. In addition, the judgment of conviction
incorporated the Stipulation and Order of the South
Dakota Board of Nursing. That document states that in
the course of her employment as a registered nurse,
Petitioner allegedly engaged in abusive conduct against a
person entrusted to her care in an incident which
occurred on June 17, 1996. Given that the judgment of
conviction incorporated the Stipulation and Order of the
South Dakota Board of Nursing and that both documents
refer to an incident which occurred on June 17, 1996, I
conclude that the criminal charge to which Petitioner
pled no contest emanated from the alleged June 17, 1996
incident described by the Stipulation and Order of the
South Dakota Board of Nursing. Moreover, Petitioner does
not contest assertions made by the I.G. in her brief that
the criminal charge to which Petitioner pled no contest
emanated from allegations of abusive conduct against a
nursing home patient.
Although the term "abuse" is not defined within the Act,
the term "abuse" is intended to include those situations
where a party wilfully mistreats another person. Thomas
M. Cook, DAB CR51 (1989). In the present case,
Petitioner was convicted of simple assault for
intentionally causing bodily injury to another person. A
physical assault against an individual clearly falls
within the common and ordinary meaning of the term
"abuse." Patricia Self, supra.
I also find that Petitioner's abuse of a patient occurred
in connection with the delivery of a health care item or
service. It is undisputed that Petitioner was a nurse,
and that her duties as a nurse directly involve patient
care and the delivery of health care services. In
addition, the undisputed material facts establish that
the alleged incident underlying Petitioner's no contest
plea occurred in the course of Petitioner's employment
duties, and that it involved an individual entrusted to
her care. Based on these undisputed facts, I conclude
that Petitioner was convicted of a criminal offense which
occurred in connection with the delivery of a health care
item or service.
Petitioner contends that the I.G. has no authority to
exclude her because she was convicted only of a
misdemeanor offense. I find that the fact that
Petitioner was convicted of a misdemeanor crime does not
negate the imposition of an exclusion pursuant to section
1128(a)(2). Congress intended that the exclusion
authority set forth in section 1128(a) would apply to all
convictions, regardless of class or type. Congress
recognized no distinctions between felonies and
misdemeanors. Patricia McClendon, DAB CR264 (1993); Joel
A. Baringer, R.Ph., DAB CR397 at 4 (1995).
Petitioner points out that the South Dakota Board of
Nursing placed her license to practice nursing on a
probationary status for a period of two years. She
asserts that by excluding her for five years, the I.G.
has effectively removed her from nursing for a period of
five years. She argues that by imposing an exclusion
which is three years longer than the sanction imposed by
the State Board of Nursing, the I.G. has inflicted cruel
and unusual punishment on her in violation of her
constitutional rights.
Petitioner's argument is without merit. It is well-
settled that the primary purpose of an exclusion is
remedial rather than punitive. The purpose of a
mandatory exclusion is to protect the integrity of the
Medicare and Medicaid programs, program beneficiaries and
recipients, and the public from persons who have been
shown to be guilty of program-related or patient-related
crimes. Joel A. Baringer, R.Ph., DAB CR397 (1995).
Moreover, I have no authority to rule on the
constitutionality of Petitioner's exclusion. Id. See 42
C.F.R. § 1005.4.
A five-year exclusion under section 1128(a)(2) of the Act
is mandatory when a petitioner has been convicted of a
criminal offense relating to the abuse or neglect of
patients in connection with the delivery of a health care
item or service. In this case, Petitioner has been
convicted of such an offense. Therefore the I.G. is
required to exclude Petitioner for at least five years.
Neither the I.G. nor the ALJ is authorized to reduce the
five-year minimum mandatory period of exclusion. Jack W.
Greene, DAB CR19, aff'd DAB No. 1078 (1989), aff'd sub
nom, Greene v. Sullivan, 731 F. Supp. 835 (E.D. Tenn.
1990).
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 she was convicted of a criminal offense relating
to the 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. Unless the context indicates otherwise, I
use the term "Medicaid" to refer to all State health care
programs from which Petitioner was excluded.
2. For Petitioner to be "convicted" of a
criminal offense within the meaning of section 1128(i) of
the Act, it is only necessary to find that one of the
four subsections of section 1128(i) has been satisfied.
Here, however, I found that Petitioner's conviction fell
within two subsections.