DEPARTMENT OF HEALTH AND HUMAN SERVICES
Departmental Appeals Board
Civil Remedies Division
In the Case of:
Thomas M. Cook,
Petitioner,
- v. -
The Inspector General.
Docket No. C-106
DATE: October 27, 1989
DECISION OF ADMINISTRATIVE LAW JUDGE
ON MOTION FOR SUMMARY DISPOSITION
On February 14, 1989, the Inspector General (the I.G.) notified Petitioner
that he was being excluded from
participation in Medicare and State health care programs. The I.G. told Petitioner
that he was being
excluded as a result of his conviction in a Texas court 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 was advised that the
exclusion of individuals convicted of such an offense is mandated by section
1128(a)(2) of the Social
Security Act. The I.G. further advised Petitioner that the law required that
the minimum period of such an
exclusion be for not less than five years.
Petitioner timely requested a hearing as to the exclusion, and the case was
assigned to me for a hearing and
a decision. The I.G. moved for summary disposition of the case, and Petitioner
opposed the motion. I
have considered the parties' arguments, the undisputed material facts, and the
applicable law and
regulations. I conclude that the exclusions imposed and directed by the I.G.
are mandated by section
1128(a)(2) of the Social Security Act. Therefore, I am deciding this case in
favor of the I.G.
ISSUE
The issue in this case is whether 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 Social Security Act.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
1. On February 8, 1988, Petitioner was charged under Texas law with committing
a criminal offense of
intentionally or recklessly engaging in conduct that caused injury to an elderly
individual. I.G. Ex. 1.
2. Petitioner was accused of causing injury to a nursing home patient. I.G. Ex. 1.
3. Petitioner was an administrator of the nursing home in which the allegedly
injured party resided. I.G.
Ex. 1; P.'s Brief at 2.
4. The incident which led to criminal charges being filed against Petitioner
occurred in the course of
Petitioner's administrative duties and involved a nursing home patient. I.G.
Ex. 1; P.'s Brief at 2-3.
5. On July 13, 1988, Petitioner pleaded guilty in a Texas court to the criminal
offense of reckless conduct.
I.G. Ex. 2.
6. Petitioner's guilty plea was made in lieu of a trial of the criminal charges against Petitioner. I.G. Ex. 2.
7. The Texas court found Petitioner guilty of reckless conduct and entered
a final judgment against him.
I.G. Ex. 2.
8. 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. Findings 1-6.
9. Petitioner was convicted of a criminal offense within the meaning of section
1128(a)(2) of the Social
Security Act. Findings 1-7; Social Security Act, section 1128(a)(2).
10. Petitioner was convicted of a criminal offense as defined by section 1128(i)
of the Social Security Act.
Finding 7; Social Security Act, section 1128(i).
11. The Secretary of Health and Human Services (the Secretary) delegated to
the I.G. the authority to
determine, impose, and direct exclusions pursuant to section 1128 of the Social
Security Act. 48 Fed. Reg.
21662 (May 13, 1983).
12. On February 14, 1989, the I.G. excluded Petitioner from participating in
the Medicare program and
directed that he be excluded from participating in Medicaid, pursuant to section
1128(a)(2) of the Social
Security Act.
13. The exclusion imposed and directed against Petitioner by the I.G. was for
five years, the minimum
period required by law for exclusions imposed and directed pursuant to section
1128(a)(2) of the Social
Security Act. Social Security Act, section 1128(c)(3)(B).
14. The exclusion imposed and directed against Petitioner by the I.G. is mandated
by law. Finding 7;
Social Security Act, sections 1128(a)(2); 1128(c)(3)(B).
ANALYSIS
Petitioner pleaded guilty in a Texas court to the criminal offense of reckless
conduct. 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 Social Security Act. This section
mandates the exclusion
from participating in Medicare and Medicaid of individuals who are:
(C)onvicted, 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.
Neither party to this case disagrees that Petitioner was convicted of a criminal
offense within the meaning
of section 1128. The undisputed facts establish that Petitioner entered a guilty
plea to a criminal offense,
and the Court accepted Petitioner's plea and entered a judgment of guilty. The
exclusion law defines the
term "convicted of a criminal offense" to include those circumstances
in which a judgment of conviction
has been entered against an individual by a federal, state, or local court.
Social Security Act, section
1128(i)(1).
The statute of which Petitioner was convicted does not specifically refer to
neglect or abuse. Petitioner was
convicted of the offense of reckless conduct. I conclude that Petitioner was
convicted of an offense
relating to "neglect" of another individual, as that term is used
in section 1128(a)(2) of the Social Security
Act.
The terms "neglect" and "abuse" are not defined in section
1128(a)(2). In the absence of a definition, they
should be given their common and ordinary meaning.
"Neglect" is defined in Webster's Third New International Dictionary,
1976 Edition as "1: to give little or
no attention or respect to:. . . 2: to carelessly omit doing (something that
should be done) either altogether
or almost altogether . . . ." "Abuse" is defined as "4:
to use or treat so as to injure, hurt, or damage;
MALTREAT . . . ." I conclude from these common definitions that Congress
intended the statutory term
"neglect" to include failure by a party to satisfy a duty of care
to another person. "Abuse" is intended to
include those situations where a party willfully mistreats another person.
Petitioner was convicted of violating section 22.05 of the Texas Penal Code,
which provides in relevant
part that:
(a) A person commits an offense if he recklessly engages in conduct that places
another in imminent
danger of serious bodily injury.
I conclude that reckless conduct that places another in imminent danger of
serious bodily harm falls within
the common definition of "neglect." Therefore, a conviction under
section 22.05 of the Texas Penal Code
is plainly a conviction related to "neglect" within the meaning of
section 1128(a)(2).
Thus, Petitioner's guilty plea and the statute under which Petitioner was convicted
establish that he was
convicted of an offense relating to neglect of another. However, it is not clear
from Petitioner's guilty plea
or from the statute under which Petitioner was convicted whether the offense
related to patient neglect or
abuse in connection with the delivery of a health care item or service. That
raises the issue of whether
there is relevant evidence concerning the facts upon which Petitioner's conviction
was predicated to
determine if Petitioner was convicted of an offense related to patient neglect
or abuse. I conclude that it is
consistent with Congressional intent to admit limited evidence to establish
whether the individual who was
the subject of the offense for which Petitioner was convicted is a "patient,"
and to determine whether the
incident which led to Petitioner's conviction was "in connection with the
delivery of a health care item or
service."
A primary purpose of the exclusion law is to provide a remedy to protect Medicare
beneficiaries and
Medicaid recipients from individuals who have demonstrated by their actions
that they are not trustworthy
to render services. The purpose is not to create additional penalties for state
criminal convictions, but,
rather, to protect federal programs and recipients and beneficiaries of those
programs. Congress made a
legislative determination that parties convicted of criminal offenses relating
to neglect or abuse of patients
in connection with the delivery of a health care item or service were untrustworthy,
and it mandated the
exclusion of such parties.
Congress could have conditioned imposition of the exclusion remedy on conviction
of criminal offenses
consisting of patient neglect or abuse. 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 plainly
intended that the exclusion
apply to a broader array of circumstances. It mandated that the Secretary exclude
parties who are
convicted of criminal offenses "relating to" patient neglect or abuse
in connection with the delivery of a
health care item or service.
It is consistent with Congressional intent to admit evidence which explains
the circumstances of the offense
of which a party is convicted. In this case, the only extrinsic evidence that
is necessary to establish
whether Petitioner was convicted of an offense within the meaning of section
1128(a)(2) is evidence
establishing the identity of the person Petitioner was convicted of endangering
and Petitioner's relationship
to that individual.
The undisputed material facts of this case establish that Petitioner was a
nursing home administrator, that
the incident that resulted in Petitioner's guilty plea occurred in the course
of Petitioner's administrative
duties, and that the incident involved a nursing home patient. Findings 2-4.
These undisputed facts
therefore establish all that is necessary to conclude that Petitioner was convicted
of a criminal offense
relating to neglect of a patient in connection with the delivery of a health
care item or service, satisfying
the requirements of section 1128(a)(2). Therefore, I conclude that the I.G.
was required to impose and
direct an exclusion against Petitioner pursuant to section 1128(a)(2) of the
Social Security Act.
CONCLUSION
Based on the undisputed material facts and the law, I conclude that the I.G.'s
exclusion was mandated by
law. Therefore, I am entering a decision in favor of the I.G. in this case.
The five-year exclusion imposed
and directed against Petitioner is sustained.
__________________________
Steven T. Kessel
Administrative Law Judge