Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD
Civil Remedies Division
DATE: June 20, 1990
Docket No. C-200
In the Case of:
Rosette Elliott,
Petitioner,
- v. -
The Inspector General.
DECISION
On December 1, 1989, the Inspector General (the I.G.) notified Petitioner that
she was being excluded from
participation in Medicare and State health care programs for a period of five
years. The I.G. told Petitioner
that she was being excluded as a result of her 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 (Act). The I.G. further advised Petitioner
that section (c)(3)(B) of the
Act required that the minimum period of such an exclusion be for not less than
five years.
Petitioner timely requested a hearing and this case was assigned to me for
a hearing and a decision. The
I.G. moved for summary disposition, and Petitioner opposed the motion. I have
considered the parties'
arguments, the undisputed material facts, and the applicable law and regulations.
Based on the record
before me, I conclude that the five year exclusion imposed by the I.G. is required
by section 1128(a)(2) of
the Act.
APPLICABLE STATUTES AND REGULATIONS
I. The Federal Statute.
Section 1128 of the Act is codified at 42 U.S.C. 1320a-7 (West U.S.C.A., 1989
Supp.). Section 1128(a)(2)
of the Act provides for the exclusion from Medicare and Medicaid of those individuals
or entities
"convicted" of a criminal offense "relating to neglect or abuse
of patients in connection with the delivery of
a health care item or service". Section 1128(c)(3)(B) provides for a five
year minimum period of exclusion
for those excluded under section 1128(a)(2).
II. The Federal Regulations.
The governing federal regulations (Regulations) are codified in 42 C.F.R.,
Parts 498, 1001, and 1002
(1988). Part 498 governs the procedural aspects of this exclusion case; Parts
1001 and 1002 govern the
substantive aspects.
Section 1001.123 requires the I.G. to give a party written notice that he or
she is excluded from
participation in Medicare, beginning 15 days from the date on the notice, whenever
the I.G. has conclusive
information that a practitioner or other individual has been convicted of a
crime related to his or her
participation in the delivery of medical care or services under the Medicare,
Medicaid, or the social
services program.
ISSUES
The issues are:
1. Whether Petitioner was "convicted" of a criminal offense within
the meaning of section 1128(i) of the
Act.
2. 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.
3. Whether summary disposition is appropriate in this case.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
1. On March 29, 1989, Petitioner was charged under Texas law with committing
a criminal offense of
negligence that caused bodily injury to an elderly individual over the age of
65. I.G. Ex. 1,2.
2. Petitioner was accused of causing injury to a nursing home patient. I.G. Ex. 1,2,3,4,6,7.
3. Petitioner was a nurse's aid in the nursing home in which the allegedly
injured party resided. I.G. Ex.
1,2,6.
4. The incident which led to criminal charges being filed against Petitioner
occurred in the course of
Petitioner's duties and involved a nursing home patient. I.G. Ex. 6,7; P. Br.
2.
5. On July 17, 1989, Petitioner pleaded nolo contendere in a Texas court to
the criminal offense of injury
to the elderly, as alleged in the criminal information. I.G. Ex. 2,3.
6. Petitioner's nolo plea was made in lieu of a trial of the criminal charges against Petitioner. I.G. Ex. 3.
7. On July 17, 1989, the Texas court accepted Petitioner's nolo plea and entered
an Order (attached to the
nolo plea) accepting the plea. I.G. Ex. 3.
8. On July 17, 1989, the Texas court entered an Order deferring adjudication,
fining Petitioner, ordering
Petitioner to pay court costs, and placing Petitioner on probation. I.G. Ex.
4.
9. Petitioner was "convicted" of a criminal offense as defined by section 1128(i) of the Act. FFCL 7.
10. 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.
FFCL 1-7.
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 Act.
48 Fed. Reg. 21662 (May
13, 1983).
12. On December 21, 1989, the I.G. excluded Petitioner from participating in
the Medicare program and
directed that she be excluded from participating in Medicaid, pursuant to section
1128(a)(2) of the 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 Act.
14. The five year exclusion imposed and directed against Petitioner by the
I.G. is mandated by federal law.
FFCL 1-12; Act, sections 1128(a)(2); 1128(c)(3)(B), 1128(i).
15. Summary disposition is appropriate in this case.
See 56 F.R.C.P.; Wheeler and Todd, DAB App. 1123 (1990).
DISCUSSION
I. Petitioner was "Convicted" of a Criminal Offense as a Matter of Federal Law.
The I.G.'s authority to exclude an individual from Medicare and Medicaid programs
under section 1128
(a)(2) of the Act is based upon a "conviction" of a petitioner of
a criminal offense "relating to neglect or
abuse of patients in connection with the delivery of an item or service"
as defined in sections 1128(a)(1)
and 1128(i) of the Act. Without such a "conviction," there is no authority
to exclude an individual.
Section 1128(i) of the Act provides that an individual has been "convicted" of a criminal offense when:
(1) 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) there has been a finding of guilt against the individual or entity by
a Federal, State, or
local court;
(3) a plea of guilty or nolo contendere by the individual or entity has been
accepted by a
Federal, State, or local court; or
(4) 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.
In this case, the record contains evidence that Petitioner pled nolo contendere
to one misdemeanor count of
injury to the elderly. FFCL 1-7. Petitioner admits that she pleaded nolo to
the criminal information and
admits that the Texas court "accepted" her plea and that she was placed
on 12 months of "deferred
adjudication." I.G. Ex. 7. Petitioner argues that the criminal court withheld
adjudication, did not enter a
final judgment, and did not pronounce sentence. Petitioner argues that, under
Texas law, her plea of nolo
contendere was not a conviction. She argues that Texas law requires a formal
entry of judgment by the
criminal court in order for a plea to constitute a conviction. P Br. 1-4.
Based on Petitioner's admissions and the court's order, I conclude that the
criminal court "accepted"
Petitioner's plea. Thus, Petitioner's plea of nolo contendere, having been "accepted"
by a State court,
constitutes a "conviction" within the meaning of the sections 1128(a)(2)
and 1128(i)(3) of the Act.
Although it is only necessary that I find that Petitioner be convicted as defined
by one of the subsections of
section 1128 (i), I also conclude that Petitioner was "convicted,"
as defined by section 1128 (i)(4) of the
Act. Petitioner's state court arrangement was one where judgment of conviction
was withheld and she
received probation. These facts constitute a "conviction"; this is
a type of arrangement that Congress
meant to include within its federal definition of "conviction" for
purposes of exclusions from Medicare and
Medicaid.
II. 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.
Having concluded that Petitioner was "convicted" of a criminal offense,
I must determine whether the
evidence demonstrates a relationship between the conviction and "neglect
or abuse of patients in
connection with the delivery of a health care item or service."
The State statute of which Petitioner was convicted does not specifically refer
to neglect or abuse.
Petitioner was convicted of the offense of criminal negligence. I conclude that,
as a matter of federal law,
Petitioner was convicted of an offense relating to "neglect or abuse"
of another individual, as that term is
used in section 1128(a)(2) of the 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: leave undone or unattended . . . ." "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 22.04 of the Texas Penal Code
and the criminal information to
which she pleaded nolo contendere stated, in relevant part, that:
unlawfully and with criminal negligence, by act, cause bodily injury; to wit:
injury to the head;
to a person; to wit: Opal Thompson and said Opal Thompson being at that time
65 years of age or older;
said criminally negligent act being leaving said Opal Thompson in a bathroom.
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 22.04 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 she 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 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. 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."
Dewayne Franzen, DAB No. 1165 (1990).
In this case, the only evidence that is necessary for me to consider to decide
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 injuring through her criminal neglect
and Petitioner's relationship to
that individual.
The undisputed material facts of this case establish that Petitioner was a
nurse's aid at a nursing home, that
the incident that resulted in Petitioner's guilty plea occurred in the course
of Petitioner's duties, and that the
incident involved a nursing home patient. FFCL 1-4. These undisputed facts establish
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).
III. Summary Disposition Is Appropriate In This Case.
The issue of whether the I.G. was required to exclude Petitioner under section
1128(a)(2) is a legal issue. I
have concluded as a matter of law that Petitioner was properly excluded and
that the length of her
exclusion is mandated by federal law. There are no genuine issues of material
fact which would require the
submission of additional evidence, and there is no need for an evidentiary hearing
in this case.
Accordingly, the I.G. is entitled to summary disposition as a matter of law.
See Wheeler and Todd, DAB
No. 1123 (1990) and Rule 56 F.R.C.P.
CONCLUSION
Based on the undisputed material facts and the law, I conclude that the I.G.'s
five year exclusion was
mandated by federal law. The five-year exclusion imposed and directed against
Petitioner by the I.G. is
required by section 1128 of the Act.
__________________________
Charles E. Stratton
Administrative Law Judge