Date: January 29, 1999

In the Case of:

Michelle L. Thomas,
Petitioner,

- v. -

The Inspector General.

Docket No. C-98-427
Decision No. CR569

By letter dated June 30, 1998, Michelle L. Thomas, the Petitioner herein, was notified by the Inspector General (I.G.), U.S. Department of Health and Human Services (HHS), that it had been decided to exclude her for a period of five years from participation "in the Medicare, Medicaid, and all Federal health care programs as defined in section 1128B(f) of the Social Security Act (Act) . . . ." (Emphasis in original text). The I.G. explained that the five-year exclusion was being imposed pursuant to section 1128(a)(2) of the Act because Petitioner had been convicted in the State of Ohio, Court of Common Pleas, Holmes County, 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. 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. Petitioner submitted a brief and two proposed exhibits ("Exhibit A" and "Exhibit B," which I have re-numbered as P. Ex. 1 and P. Ex. 2). The I.G. did not object to these exhibits and I admit P. Exs. 1 and 2 into evidence. The I.G. submitted a brief in support of a motion for summary disposition, and with it, six proposed exhibits (I.G. Exs. 1-6). Petitioner did not object to these exhibits and I admit I.G. Exs. 1-6 into evidence.

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.

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 not less than five years.

Petitioner acknowledges that she entered a guilty plea to a reduced charge of gross neglect, a misdemeanor. However, Petitioner, in her hearing request, contends that "she did not plead guilty to a charge of patient abuse, however, it was a plea bargain arrangement." Moreover, Petitioner asserts that she did not engage in the alleged criminal misconduct. In this regard, she maintains that the testimony of witnesses in a preliminary hearing in State court in the criminal matter did not support a finding of guilt; that there was no medical evidence to sustain the allegations; and that the State of Ohio, Department of Health, dismissed its investigation of the incident. On such facts, Petitioner contends that her "Alford plea" cannot be used as a basis to exclude her from program participation.⁽¹⁾ Petitioner requests that her five-year exclusion be reduced or terminated.

1. At all times relevant herein, Petitioner was employed as a licensed practical nurse in a nursing home in Millersburg, Ohio. P. Ex. 2.

2. Petitioner's duties as a licensed practical nurse at the nursing home included providing care to patients at that facility. Id.

3. On or about April 11, 1997, a one-count criminal indictment was filed against Petitioner in the Court of Common Pleas, Holmes County, Ohio, alleging that Petitioner, an employee of a "care facility," abused a patient of such facility and harmed said patient. I.G. Ex. 6.

4. Petitioner was charged in the indictment with patient abuse, a felony in violation of Ohio Revised Code § 2903.34(A)(1). Id.

5. On July 31, 1997, Petitioner pled guilty to one count of gross neglect of a patient, a misdemeanor, in violation of Ohio Revised Code § 2903.34(A)(3). I.G. Ex. 5.

6. On September 12, 1997, the Ohio State court accepted Petitioner's guilty plea and sentenced her to 90 days in the Holmes County jail, suspended, three years probation, and a fine of $500. I.G. Ex. 2.

7. Petitioner's guilty plea and the court's acceptance of such plea constitute a "conviction" within the meaning of sections 1128(i)(1) and (3) of the Act.

8. Petitioner's conviction for gross neglect concerning her actions involving a patient in her care is an offense relating to the neglect or abuse of a patient and is connected with the delivery of a health care item or service within the meaning of section 1128(a)(2) of the Act.

9. The mandatory minimum period for exclusions pursuant to sections 1128(a)(2) and 1128(c)(3)(B) of the Act is five years.

10. The Secretary has delegated to the I.G. the duty to determine and impose exclusions pursuant to section 1128(a) of the Act.

11. 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.

12. Neither the I.G. nor an 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.

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 must have 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. The term "convicted" is defined in section 1128(i) of the Act. This section provides that an individual or entity will be convicted of a criminal offense:

(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 judgment of conviction has been withheld.

Section 1128(i) of the Act.

This section establishes four alternative definitions of the term "convicted." An individual or entity need satisfy only one of the four definitions under section 1128(i) to establish that the individual or entity has been convicted of a criminal offense within the meaning of the Act.

In the present case, I find that Petitioner was "convicted" of a criminal offense within the meaning of sections 1128(i)(1) and (3) of the Act. On July 31, 1997, Petitioner pled guilty to one count of gross neglect of a patient, a misdemeanor, in violation of Ohio Revised Code § 2903.34(A)(3). I reject Petitioner's contention that her "Alford plea" is not within the scope of section 1128(i) of the Act. Prior decisions of the Departmental Appeals Board (DAB) have unequivocally held that an "Alford plea" to a criminal charge satisfies the requirement that Petitioner have been convicted within the meaning of section 1128(i) of the Act. Russell E. Baisley, DAB CR128 (1991); Raymond R. Veloso, M.D., DAB CR124 (1991); Magdi Z. Fahmy, M.D., DAB CR176 (1992). By entering an "Alford plea," Petitioner is deemed to have pled guilty, and the record shows that the Ohio State Court accepted this plea and sentenced her. Therefore, Petitioner was convicted within the meaning of sections 1128(i)(1) and (3) of the Act.⁽²⁾

I find further that Petitioner's conviction for gross neglect of a nursing home patient related to the abuse or neglect of a patient within the scope of section 1128(a)(2) of the Act. Petitioner's conviction for gross neglect was based upon her mistreatment of a patient. Specifically, the record reflects that, during the course of her regular duties as a licensed practical nurse, Petitioner grabbed a patient by the arm and dragged her, allegedly causing the patient to dislocate her shoulder. P. Ex. 2.

I find also that Petitioner's neglect of a patient occurred in connection with the delivery of a health care item or service.

Petitioner in this case is a licensed practical nurse who was employed in that capacity at a nursing home. Petitioner's duties as a licensed practical nurse directly involve patient care and the delivery of health care services. Petitioner does not dispute that she was employed by the facility as a licensed practical nurse and had the duty to assist in caring for the patient when the incident at issue occurred. Where an attack occurs in a health care facility where the victim has been residing as a patient, and the perpetrator is a facility employee whose duty is to assist in the care of patients, this is deemed to satisfy the statutory requirement that the criminal offense must have been related to the delivery of health care. Patricia McClendon, DAB CR264 (1993). Therefore, Petitioner's conviction for gross neglect constitutes a conviction related to the neglect of a nursing home patient in connection with the delivery of a health care item or service, within the meaning of section 1128(a)(2) of the Act.

In her defense, Petitioner asserts that she should not be subject to exclusion under section 1128(a)(2) of the Act because she was not guilty of the act alleged. She asserts that the preliminary hearing in State court in the criminal matter did not establish her guilt; that there was no medical evidence concerning the incident; and that the Ohio Department of Health investigation of the incident was terminated. Petitioner, by such arguments, seeks to challenge the propriety of her criminal conviction. Such challenge amounts to a collateral attack on her conviction. The DAB has previously held such arguments to be ineffectual in the context of an exclusion appeal, as the I.G. and the ALJ are not permitted to look beyond the fact of conviction. Paul R. Scollo, D.P.M., DAB No. 1498 (1994); Ernest Valle, DAB CR309 (1994); Peter J. Edmonson, DAB No. 1330 (1992).

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. Aida Cantu, DAB CR462 (1997). In this case, Petitioner has been convicted within the meaning of sections 1128(i)(1) and (3) of the Act, of gross neglect of a nursing home patient in connection with the delivery of a health care item or service. 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 a five-year 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).

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 related to the abuse or neglect of patients 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

1. Under an Alford plea, a defendant does not admit guilt but concedes that the State has sufficient evidence for conviction. See North Carolina v. Alford, 400 U.S. 25, 35-38 (1970).

2. Petitioner's conviction for a misdemeanor offense does not preclude the imposition of an exclusion pursuant to section 1128(a)(2) of the Act. 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. Michelle Burnette, R.N., DAB CR496 (1997).