Date: March 1, 1999

In the Case of:

Juanita Brown, R.N.,
Petitioner,

- v. -

The Inspector General.

Docket No. C-98-423
Decision No. CR579

By letter dated June 30, 1998, Juanita Brown, R.N., the Petitioner herein, was notified by the Inspector General (I.G.), United States Department of Health and Human Services (HHS), that it had 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).⁽¹⁾ 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 Superior Court of the State of Delaware, Sussex County, 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. 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, and five proposed exhibits (I.G. Exs. 1-5). Petitioner did not object to these exhibits and I admit them into evidence. Petitioner submitted a brief, a reply brief, six proposed exhibits (P. Exs. 1-6), and her affidavit which I have renumbered as P. Ex. 7. The I.G. did not object to these exhibits and I admit P. Exs. 1-7 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 contends that her conviction for "emotional abuse of a resident" does not constitute abuse or neglect, as those terms are used in section 1128(a)(2) of the Act. She contends that case law shows that prior findings of abuse or neglect in other cases involve only physical abuse or neglect. Petitioner also contends that her actions underlying the conviction for "emotional abuse of a resident" were not related to the delivery of a health care item or service in that Petitioner was not offering health care to the resident but, as charge nurse, commenting on certain behavior exhibited by the resident and responding to a nursing assistant as a supervisor. In addition, Petitioner has submitted her affidavit in which she disputes that she uttered the remarks her co-workers asserted she did and she contends that the remark she made to the patient was innocuous.

Further, Petitioner asserts that her exclusion should date from the date of her criminal conviction and that it is unfair for the exclusion to commence over one year later, when the I.G. notified her of the exclusion.

1. At all times relevant herein, Petitioner was a registered nurse in the State of Delaware. I.G. Ex. 4.

2. During the period at issue, Petitioner was employed as a registered nurse at Harbor Health Care and Rehabilitation Center (Harbor Health Care), a nursing home in Delaware. I.G. Ex. 4.

3. A criminal indictment was filed in the Superior Court of the State of Delaware, Sussex County, against Petitioner who was charged with one count of emotional abuse of a resident in violation of Title 16, section 1136(a) of the Delaware Code of 1974, as amended. I.G. Ex. 5.

4. The indictment charges that Petitioner knowingly emotionally abused a resident of Harbor Health Care, by addressing her in a demeaning and derogatory manner. I.G. Ex. 5.

5. On March 23, 1997, Petitioner pled nolo contendere to one count of emotional abuse of a resident in violation of Title 16, section 1136(a) of the Delaware Code of 1974, as amended. I.G. Ex. 2.

6. On May 23, 1997, the court adjudged Petitioner guilty of the offense pursuant to her plea. I.G. Ex. 2.

7. On May 23, 1997, the court ordered Petitioner to pay the costs of prosecution and to be placed in the custody of the Department of Corrections at Supervision Level Five for a period of 90 days with credit for time served. The sentence was suspended for three months at Supervision Level One, consecutive to any probation previously imposed. In addition, Petitioner was ordered to refrain from seeking employment in any Medicaid funded health care facility during the period of her probation. I.G. Ex. 2.

8. On June 30, 1998, the I.G. notified Petitioner that she was being excluded from participation in the Medicare and Medicaid programs for a period of five years pursuant to section 1128(a)(2) of the Act. I.G. Ex. 1.

9. The court's acceptance of Petitioner's nolo contendere plea constitutes a conviction within the meaning of sections 1128(i)(3) of the Act.

10. Petitioner was convicted of a criminal offense relating to neglect or 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. Pursuant to section 1128(c)(3)(B) of the Act, the mandatory minimum period for an exclusion imposed pursuant to section 1128(a)(2) of the Act is five years.

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

13. 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.

14. 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.

To justify excluding an individual pursuant to section 1128(a)(2) of the Act, the I.G. must prove that: (1) the individual being excluded has been convicted of a criminal offense; (2) the conviction is related to 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. 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.

Act, section 1128(i).

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 section 1128(i)(3) of the Act. 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 record reflects that Petitioner pled nolo contendere. The court then accepted Petitioner's guilty plea by adjudging her to be guilty of the offense and sentencing her. I.G. Ex. 2. Therefore, Petitioner was "convicted" of a criminal offense within the meaning of section 1128(i)(3) of the Act. Carlos E. Zamora, M.D., DAB CR22 (1989), aff'd DAB No. 1104 (1989); Anthony Tommasiello, DAB CR282 (1993).

I further find that Petitioner's conviction of emotional abuse was related to the abuse or neglect of a patient within the scope of section 1128(a)(2) of the Act. Petitioner contends that emotional abuse of a nursing home resident does not constitute abuse within the scope of the Act and she asserts that a review of case law shows that prior findings of abuse or neglect in other cases involve only physical abuse or neglect. I find that the term "abuse" as used in the Act is not by its terms limited to physical abuse and that it encompasses emotional or other types of abuse. Further, I find that it is appropriate and warranted to include Petitioner's misconduct within the scope of the Act. In determining whether an exclusion is appropriate under this section, an ALJ may look beyond the charge for which an individual was convicted to the underlying circumstances. Norman C. Barber, D.D.S., DAB CR123 (1991). Although the term "abuse" is not defined in section 1128(a)(2), previous cases have determined that the term "abuse" should be given its ordinary and common meaning. "Abuse" is intended to include those situations where a party willfully mistreats another person. Thomas M. Cook, DAB CR51 (1989); Rosette Elliott, DAB CR84 (1990). I find that Petitioner's treatment of the patient falls within the common and ordinary meaning of the term "abuse."

Petitioner was convicted of an offense relating to patient abuse. Statements from the Deputy Attorney General who prosecuted Petitioner's case reflect that: "Based upon an investigation by the Medicaid Fraud Control Unit, the State of Delaware alleged that the defendant had uttered degrading obscenities to a 77-year-old, confused, female patient of Harbor Health Care on March 30, 1996. Even though the victim couldn't testify to the abuse her comments were overheard by three co-workers who were outraged and reported the incident." I.G. Ex. 4. The Deputy Attorney General also noted that Petitioner "confessed to [a police officer] that she had used vile language towards the victim." P. Ex. 4. The criminal indictment in Petitioner's case alleged that she "did knowingly emotionally abuse . . . , a resident of Harbor Health Care, . . . by addressing her in a demeaning and derogatory manner." I.G. Ex. 5 "Emotional abuse" is defined by the Delaware Code as including "ridiculing or demeaning a patient or resident, making derogatory remarks to a patient or resident or cursing directed towards a patient or resident, or threatening to inflict physical or emotional harm on a patient." 16 Del. C. § 1131(1)(b).

From this record, it is evident that Petitioner's derogatory remarks underlying her conviction constituted willful mistreatment of a patient and falls within the common and ordinary meaning of the term "abuse." Certainly, as implied by the Delaware statute, the infliction of emotional distress of the sort occasioned by remarks such as Petitioner's can be as abusive and hurtful as the infliction of physical abuse, especially when such remarks were directed at an individual who may be emotionally or intellectually unequipped to deal with them.

I also find that Petitioner's abuse of a patient occurred in connection with the delivery of a health care item or service. Petitioner argues that she was not offering health care to the resident but, as charge nurse, commenting on certain behavior exhibited by the resident and responding to a nursing assistant as a supervisor. However, where an attack occurs in a health care facility where the victim has been residing as a patient and the perpetrator is an employee of the facility whose duty is 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). The victim of Petitioner's abuse was a resident of Harbor Health Care, a residential health care facility, where she received health care services. She was, therefore, a patient within the meaning of the Act. The incident which formed the basis of Petitioner's conviction occurred in the course of Petitioner's employment duties as a charge nurse and a supervisor of nursing assistants and involved an individual entrusted to her care. The DAB has interpreted the broad terminology of section 1128(a)(2) to suggest that Congress intended to allow even a minimal nexus between the offense and the delivery of a health care item or service to satisfy the statutory test. Anthony W. Underhill, DAB CR231 (1992). Based on this, I conclude that Petitioner was convicted of an offense which occurred in connection with the delivery of a health care item or service.

In her defense, Petitioner denies that she made the remarks attributed to her by her co-workers and she asserts that the remarks she made were innocuous. These claims of Petitioner amount to a collateral attack on her conviction, which the Departmental Appeals Board (DAB) has previously held to be an ineffectual argument in the context of an exclusion appeal. 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 Edmonson, DAB No. 1330 (1992).

Once it is determined that a conviction of a criminal offense relating to the abuse or neglect of a patient in connection with the delivery of a health care item or service has occurred, exclusion is mandatory under section 1128(a)(2). Peter J. Edmonson, DAB CR163 (1991), aff'd DAB No. 1330 (1992). In this case, Petitioner has been convicted of such an offense. Under section 1128(c)(3)(B) of the Act, the mandatory minimum period for an exclusion, imposed pursuant to section 1128(a)(2) of the Act, is five-years. 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 (1989), aff'd, DAB No. 1078 (1989) aff'd sub nom, Greene v. Sullivan, 731 F. Supp. 835 (E.D. Tenn 1990).

In addition, Petitioner asserts that it is unfair that her exclusion did not commence at the date of her criminal conviction. I find no merit in this claim. Exclusions are remedial in nature and not punitive. Manocchio v. Kusserow, 961 F.2d. 1539 (11th Cir. 1992). The I.G. has the discretion to determine when to impose an exclusion. Lawrence Wynn, M.D., DAB CR344 (1994). Neither the statute nor the regulations set any specific deadline for the I.G. to act. See Chander Kachoria, DAB No. 1380 (1993). It is clear that an exclusion must take effect 20 days from the date of the I.G.'s notice of exclusion. Act, section 1128(c)(1); 42 C.F.R. § 1001.2002. This means that the exclusion must take effect 20 days after the June 30, 1998 exclusion letter and not 20 days after Petitioner's conviction. Although Petitioner implies that her exclusion should be retroactive, an ALJ is without authority to change the effective date of an exclusion. Stanley Karpo, D.P.M., CR356 (1995); Chander Kachoria, supra; Lawrence Wynn, M.D., supra; Samuel W. Chang, M.D., DAB No. 1198 (1990). Similarly the I.G. has no authority to make exclusions retroactive and neither the I.G. nor the ALJ can move the effective date of the exclusion back to Petitioner's date of conviction. See Karpo, at 17. In Chander Kachoria, supra, there was a three-year delay between the date of the I.G. initial investigation and the date when the petitioner received the exclusion letter. The ALJ ruled, however, that neither the statute nor the regulations set any specific deadline for the I.G. to act once an individual is convicted.

Consequently, I find that the time which elapsed between Petitioner's conviction and the receipt of the exclusion letter does not violate her rights.

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 abuse or neglect 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

1. Unless the context indicates otherwise, I use the term "Medicare" to refer to all of the federal health care programs from which Petitioner was excluded. I use the term "Medicaid" to refer to all of the State health care programs from which Petitioner was excluded.