Ronald Allen Cormier, DAB CR112 (1990)

Department of Health and Human Services

DEPARTMENTAL APPEALS BOARD

Civil Remedies Division

In the Case of:

Ronald Allen Cormier,

Petitioner,
- v. -
The Inspector General

DATE: December 17, 1990

Docket No. C-206

DECISION

On November 20, 1989, the Inspector General (I.G.) notified
Petitioner that he was being excluded for ten years from
participation in the Medicare and any State health care programs.
1/ The I.G. told Petitioner that he was being excluded as a result
of his conviction in the County Court of the Eighth Judicial Circuit
in and for Alachua County, Florida (Alachua County Court), of a
criminal offense relating to patient abuse. 2/ The I.G. advised
Petitioner that the exclusion of individuals convicted of such an
offense is mandated by section 1128(a)(2) of the Social Security Act
(Act), and that Section 1128(c)(3)(B) of the Act provides that the
minimum period of exclusion for such an offense is five years. The
I.G. excluded Petitioner for five years in addition to the minimum
mandatory period after taking into consideration that "the program
violations had a significant adverse physical, mental or financial
impact on program beneficiaries or patients."

Petitioner, through his attorney, requested a hearing on January 17,
1990, and the case was assigned to me for a hearing and a decision.
About March 15, 1990, before the first prehearing conference,
Petitioner's attorney withdrew from the case. I provided Petitioner
with time to secure the representation of another attorney.
However, Petitioner has not obtained new counsel and appeared before
me pro se.

I held a telephone prehearing conference in this case on April 24,
1990. At that time I set a date and a place to hear this case; June
5, 1990, in Gainesville, Florida. Petitioner later requested a
postponement of this hearing, explaining that he needed additional
time to collect evidence in support of his case, in light of
unexpected items in the I.G.'s exhibit and witness lists. The I.G.
did not oppose this request. In an Order dated June 15, 1990 I set
a new hearing date of September 18, 1990.

On August 24, 1990, the I.G. made a motion to dismiss Petitioner's
appeal, as Petitioner had failed to file the requisite submissions
itemized in my June 15, 1990 Order. Petitioner's submissions were
to include copies of proposed witness and exhibit lists, and copies
of proposed exhibits and written statements. On August 29, 1990, I
issued an Order to show cause why Petitioner had both failed to file
his submissions or to contact either the I.G. or my office. In the
absence of any communication from Petitioner, I stated that I must
conclude that Petitioner did not intend to pursue his hearing
request. I gave the Petitioner until September 5, 1990 to contact
my office to let me know whether he still wanted a hearing and, if
so, why he had not complied with my Order. Failure to contact my
office would have resulted in a dismissal of his case, and a
forfeiture of his right to a hearing.

Petitioner timely contacted my office and informed me that he did
want a hearing, but that he would not be offering any evidence or
witnesses. Accordingly, I reconfirmed the hearing for Tuesday,
September 18, 1990, at the Alachua County Courthouse.

By telephone on September 17, 1990, Petitioner informed my office
that he would be unable to keep his September 18, 1990 hearing date
because on that date he was to be in court to defend a charge of
driving under the influence.

Accordingly, I held a hearing in this case on October 12, 1990 in
Gainesville, Florida. Petitioner declined to submit a post-hearing
written statement, preferring instead to base his arguments on the
hearing request submitted by his attorney. The I.G. submitted a
post-hearing statement on November 27, 1990.

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 ten year exclusion imposed by the
I.G. is reasonable. Therefore, I sustain the exclusion imposed and
directed against Petitioner.

ISSUES

The issues in this case are whether:

1. In the absence of regulations, the I.G. has
jurisdiction to impose and direct Petitioner's
exclusion;

2. Abuses in the criminal proceeding
against Petitioner would preclude the I.G.'s exclusion of
Petitioner;

3. There are any constitutional issues in
Petitioner's case which would preclude the
I.G.'s exclusion of Petitioner;

4. Petitioner was convicted of a criminal offense;

5. The criminal offense of which Petitioner was
convicted relates 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;

6. The length of the exclusion imposed and directed
by the I.G. is reasonable.


FINDINGS OF FACT AND CONCLUSIONS OF LAW 3/

1. At all times relevant to this case Petitioner was employed as a
nursing assistant (nurse tech) at University Nursing Care Center in
Gainesville, Florida. Tr. at 15, 21 - 22.

2. On September 22, 1987, Petitioner was indicted in the Alachua
County Court of six counts of criminal abuse of a disabled person.
I.G. Ex. 1.

3. On September 26, 1988, Petitioner pleaded nolo contendere to
Count IV of this indictment. Count IV states that Petitioner "on or
about February 2, 1987, in the County of Alachua and the State of
Florida, did knowingly or willfully abuse, neglect, or exploit an
aged or disabled person, to-wit: Anna Lou Tomlinson and by such
omission and/or failure, significantly impaired and/or jeopardized
the physical or emotional health of the patient contrary to Section
415.111(4), Florida Statutes." I.G. Ex. 1, 2.

4. Pursuant to Petitioner's nolo contendere plea, on September 26,
1990, the court entered an order withholding adjudication of guilt
and placing Petitioner on probation. Petitioner received six months
probation, and was ordered to either complete 20 hours of community
service or pay $101.25 in court costs and fees. I.G. Ex. 2.

5. Nurse techs at University Nursing Care Center were responsible
for patient care; they made sure patients were bathed, fed, and kept
clean and changed when they were incontinent. Tr. at 18 - 19, 21.

6. Most of the patients on the floor in question at University
Nursing Care Center had Alzheimers or senile dementia - organic
brain syndrome, or had strokes. They were not able to carry on
intelligible conversations. Some were bedridden, and the others
could not voluntarily ambulate. Tr. at 19 - 21, 33 - 34, 38 -39.

7. Credible testimony as to Petitioner's interactions with his
patients, bolstered by Petitioner's inability to rebut the
testimony, depicts a pattern of abusive conduct towards aged and
helpless individuals. Specifically, Petitioner: 1) forcefully
grabbed a patient by the arms in a way painful to the patient; 2)
spanked a patient in a way painful to the patient; 3) left a patient
restrained for an entire day, unfed and soiled and in an agitated
condition; and 4) restrained another patient in a chair in an
improper way and for such a length of time that the patient urinated
on the floor. Tr. at 22 - 33.
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 - 4, 7.

9. Petitioner was convicted of a criminal offense within the
meaning of section 1128(a)(2) of the Act. Findings 1 - 4, 7.

10. Petitioner was convicted of a criminal offense as defined by
section 1128(i) of the Act.

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. 21661
(May 13, 1983).

12. The I.G. has the authority to impose and direct Petitioner's
exclusion even in the absence of regulations.

13. I do not have the authority to decide the constitutional issues
raised by Petitioner.

14. Sections 1128(a)(2) and 1128(c)(3)(B) set a minimum mandatory
period of exclusion of five years in cases of persons convicted of
patient abuse. However, the I.G. may direct and impose an exclusion
for more than the minimum mandatory period in the appropriate
circumstance.

15. On November 20, 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 Act.

16. The I.G. excluded Petitioner for ten years due to Petitioner's
significant adverse physical, mental or financial impact on program
beneficiaries or patients.

17. A remedial objective of section 1128 of the Act is to protect
program beneficiaries and recipients by permitting the Secretary (or
his delegate the I.G.) to impose and direct exclusions from
participation in Medicare and Medicaid of those individuals who
demonstrate by their conduct that they cannot be trusted to provide
items or services to program beneficiaries and recipients.

18. An additional remedial objective of section 1128 of the Act is
to deter individuals from engaging in conduct which jeopardizes the
integrity of federally-funded health care programs.

19. Petitioner engaged in acts that endangered the health and
safety of patients. Finding 7. See 42 C.F.R. 1001.125(b)(2).

20. Petitioner has not demonstrated any comprehension of the
wrongfulness of his acts or of the injury that these acts caused.
See 42 C.F.R. 1001.125(b)(6).

21. Petitioner, by his acts and his failure to comprehend the
wrongfulness of his acts or the injury that these acts caused, has
demonstrated that he cannot be trusted to deal with beneficiaries
and recipients of federally funded health care programs.

22. A lengthy exclusion is needed in this case to protect
beneficiaries and recipients from the possibility that Petitioner
might expose them to harm, and to deter others from engaging in the
misconduct engaged in by Petitioner.

23. The ten year exclusion imposed and directed against Petitioner
by the I.G. is reasonable. Findings 1 - 22.


ANALYSIS

The I.G. excluded Petitioner from participation in the Medicare and
Medicaid programs after concluding that 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, within the meaning of section 1128(a)(2) of the Act. The
I.G. further concluded that aggravating factors necessitated a
longer exclusion than that mandated as a minimum by section
1128(c)(3)(B).


Petitioner has contested his exclusion. Petitioner has not,
however, presented any evidence or offered any testimony in this
case to rebut the evidence presented by the I.G. Petitioner has
instead relied for his defense on unsubstantiated arguments raised
by his attorney in Petitioner's request for a hearing. In this
request, a number of threshold objections were raised as to whether
or not the I.G. had the authority to exclude Petitioner. Petitioner
argued that: 1) the I.G. had no jurisdiction to impose and direct
his exclusion in the absence of regulations; 2) abuses in
Petitioner's trial court criminal proceeding invalidated
Petitioner's conviction as a basis for excluding Petitioner; and 3)
imposition of an exclusion against Petitioner contravened provisions
of the United States Constitution. Petitioner also contests the
reasonableness of the length of his exclusion.

I find that the I.G. has the authority to exclude Petitioner, and
that there are no valid issues precluding the I.G.'s exercise of
that authority in this case. Further, I find that the length of the
exclusion directed and imposed against Petitioner is reasonable
given the gravity of Petitioner's conduct and Petitioner's manifest
untrustworthiness to deal with program beneficiaries and recipients.
Findings 1 - 23.

1. The I.G. has the authority to impose and direct Petitioner's
exclusion even in the absence of regulations.

Petitioner argues that under section 1128(c) of the Act Congress
required that the Department of Health and Human Services (DHHS)
promulgate regulations to implement the mandatory exclusion
sanctions of Public Law 100-93, the Medicare and Medicaid Patient
and Program Protection Act of 1987, which became effective on August
18, 1987. Petitioner further argues that without such regulations
the I.G. is without jurisdiction to impose exclusions. I disagree
with Petitioner's contention.

This issue was raised in the case of Jack W. Greene, DAB Civ. Rem.
C-56, aff'd DAB App. 1078, aff'd Greene v. Sullivan, 731 F. Supp.
835 (E.D. Tenn. 1990), a case brought under section 1128(a)(1).
Section 1128(a)(1) provides a minimum mandatory five year exclusion
for convictions of "a criminal offense related to the delivery of an
item or service" under the Medicare or Medicaid programs. In
Greene, the Departmental Appeals Board (the Board) held that a
mandatory exclusion may be applied on the basis of the statute alone
and the existing regulations that preceded these 1987 revisions.
The Board stated that the Secretary could rely on existing
regulations as long as they were compatible with the revised
statute, and provided for the timing and notice of the exclusion in
a manner fully consistent with the revised statutory provisions.
The Board stated that as long as the agency proceeds in accordance
with "ascertainable standards" and "provides a statement showing its
reasoning in applying the standards," formal rulemaking was not
required. Moreover, the Board held that Congress clearly authorized
the Secretary to apply the revised provisions prior to promulgating
new regulations when it authorized exclusions based on convictions
occurring on or after the enactment of the revisions.

The Board's interpretation was upheld in Greene, 731 F.Supp 835,
where the Court held:

The 1987 amendments simply imposed a five-year
minimum period of exclusion . . . . These
provisions are self executing and do not require the formation
of additional regulations prior to their
application. Adequate notice and hearing
regulations were already in place when Congress
enacted the 1987 Amendments.

2. I do not have authority to consider alleged
improprieties in Petitioner's criminal conviction as grounds to
challenge the I.G.'s determination to exclude Petitioner pursuant to
section 1128(a)(2).

In his hearing request, Petitioner alleged that he had been denied
due process in the criminal proceeding in which he entered his plea
of nolo contendere. He argued that, because his conviction was
unfairly imposed, the I.G. lacked authority to impose and direct an
exclusion. Petitioner specifically alleged that ineffective
assistance of counsel and the fact that he did not give his consent
to be represented by a legal intern as required by Florida law
violated his rights to competent counsel and to be represented by an
attorney under the Sixth and Fourteenth Amendments to the United
States Constitution. Petitioner did not, however, introduce any
evidence to substantiate these allegations.

Claims of impropriety in a state criminal proceeding are not
relevant to deciding whether the I.G. had a legal basis to impose
and direct exclusions pursuant to section 1128(a)(2). The section
of the Act which entitles parties to administrative hearings in
certain contested cases does not authorize collateral challenges of
state criminal convictions. See Andy E. Bailey, C.T., DAB App. 1131
(1990).

Section 205(b) of the Social Security Act authorizes hearings with
respect to specific decisions by the Secretary (or by officials with
authority delegated by the Secretary such as the I.G.). The
decision which Petitioner seeks to challenge here is the I.G.'s
determination that he has authority to exclude Petitioner based on
Petitioner's conviction of a criminal offense within the meaning of
section 1128(a)(2). The only pertinent question with respect to the
issue of authority is whether Petitioner was in fact convicted of a
criminal offense within the meaning of Section 1128(a)(2). Section
1128(a)(2) does not require the I.G. to look behind a criminal
conviction in order to determine whether that conviction was imposed
consonant with the requirements of due process. Therefore,
Petitioner may not litigate the due process issue in this hearing.
4/

3. I do not have authority to adjudicate the constitutional
arguments raised by Petitioner.

Petitioner argues in his hearing request that the Act is
unconstitutional as applied to him. Petitioner argues that: (1)
application of the Act to him would be a retroactive ex post facto
violation of the Constitution, as the sanctions imposed are penal in
nature and based on purported criminal conduct occurring before the
date of the law's enactment; (2) the definition of "conviction" as
contained in section 1128(i) of the Act, without the protection of a
criminal trial, constitutes a constitutionally proscribed bill of
attainder; and (3) the exclusion violated Petitioner's due process
rights by excluding him before a hearing, by informing him in only
an arbitrary and capricious manner of the basis for the exclusion,
and by excluding him for an excessive period of time.

I am without authority to decide the validity of federal statutes or
regulations in cases brought pursuant to the Act. I make no
decision concerning the constitutionality of the Act as it is being
applied to Petitioner. However, I do have authority to rule on the
factual premises and contentions of the parties and to interpret
laws, regulations, and court decisions. 42 C.F.R. 1003.105(c); See
Betsy Chua M.D. et. al., DAB Civ. Rem. C- 139, aff'd DAB App. 1204
(1990); Jack W. Greene, DAB Civ. Rem. C-56, aff'd DAB App. 1078
(1989), aff'd Greene v. Sullivan, 731 F. Supp. 835 (E.D. Tenn.
1990). I conclude that Petitioner's constitutional arguments are
inapplicable to the facts of this case.

a. Retroactivity and ex post facto:

Petitioner contends that the mandatory minimum five year exclusion
provisions cannot be applied in this case, because the activity
underlying his conviction took place on February 2, 1987, prior to
the August 18, 1987 enactment of the mandatory exclusion provisions.
Petitioner further contends that if the Act can be construed to
permit the imposition of such sanctions, these sanctions violate the
ex post facto clause of the Constitution. Although I make no
decision concerning Petitioner's constitutional argument, I disagree
with its premise.

First, the exclusion law is not being retroactively applied in this
case. Congress intended the mandatory minimum exclusion provisions
to apply prospectively from the date of the statute's enactment to
all convictions occurring on or after the effective date of the 1987
amendment. In this case, Petitioner's conviction occurred on
September 26, 1988, after the date of the law's enactment. Second,
the exclusion law is not a penal law, but is remedial. The purpose
of the exclusion law is not to punish, but to protect program
integrity by preventing untrustworthy providers from having ready
access to the Medicare and Medicaid trust funds. See Betsy
Chua, M.D. et. al., DAB Civ. Rem. C-139 (1990), aff'd DAB App. 1204
(1990); Francis Shaenboen, R.Ph., DAB Civ. Rem. C-221 (1990). See
also H.R. Rep. No. 158, 97th Cong., 1st Sess. 461-462, reprinted in
1981 U.S. Code Cong. & Admin. News 727-728; Preamble to the
Regulations at 48 Fed. Reg. 38827 to 38836 (August 26, 1983).

b. Due process:

Petitioner argues that his due process rights were violated by the
I.G. when the I.G. allegedly refused to permit a hearing or an
informal discussion with counsel prior to the imposition of
sanctions against Petitioner. Petitioner also argues that the
I.G.'s actions were arbitrary and capricious because of the
vagueness of the I.G.'s notice to Petitioner. Petitioner states
that he was only advised in very conclusive terms of the basis of
his ten year exclusion, without disclosure of the evidence
supporting the conclusion. I make no decision concerning the
constitutionality of the I.G.'s actions in this case. However, it
is evident that the pre-exclusion actions taken by the I.G. in this
case were in accord with procedures established by Congress.
Furthermore, the notice of exclusion sent to Petitioner by the I.G.
reasonably apprises Petitioner of the basis for the exclusion in
this case.

Congress directed the Secretary to provide excluded parties with the
opportunity to have hearings on their exclusions. Act, section
1128(f). They do not, however, have a right to a pre-exclusion
hearing. A hearing scheduled promptly after an exclusion is enough
to satisfy a petitioner's due process rights. See Ram v. Heckler,
792 F.2d 444 (4th Cir. 1986). The law only requires that an
excluded party be afforded reasonable notice and opportunity for a
hearing by the Secretary to the same extent as is provided in
section 205(b) of the Act. Section 205(b) states that:

Upon request by any . . . individual who makes a showing
in writing that his or her rights may be
prejudiced by any decision the Secretary has
rendered . . .[the Secretary] shall give such . . .
[individual] reasonable notice and opportunity for
a hearing with respect to such decision, and if a
hearing is held, shall on the basis of evidence
adduced at the hearing, affirm, modify, or reverse
his findings of fact and such decision.

In this case, Petitioner received reasonable notice of the I.G.'s
actions, and took advantage of the hearing offered to him, which
culminated in this action.

The I.G.'s exclusion notice states that Petitioner was excluded due
to his conviction for patient abuse, and that the I.G. excluded
Petitioner for ten years, five years more than the minimum mandatory
exclusion, due to program violations which had a significant adverse
physical, mental or financial impact on Petitioner's patients.
While the Notice does not itemize Petitioner's actions, it does put
Petitioner on notice that it is his actions with respect to the
incidents that led to his indictment and conviction that the I.G.
looked at when the I.G. determined to exclude Petitioner for ten
years.

c. Bill of attainder

Petitioner argues that the trial court judge withheld adjudication
of guilt so that Petitioner has not been convicted of any offense.
Petitioner further argues that even though Congress at section
1128(i) of the Act has defined "conviction" to include a plea of
nolo contendere, the imposition of sanctions based on this
redefinition of "conviction" without the protection of a criminal
trial constitutes a constitutionally proscribed "bill of attainder."
Again, I make no decision on the constitutional issue raised by
Petitioner. However, the statutory definition of conviction
contained in section 1128(i) does not fall within the common and
ordinary meaning of "bill of attainder." Therefore, I disagree with
this premise of Petitioner's constitutional argument.

Black's Law Dictionary, Fifth Edition, West Publishing Co., 1979,
page 116, defines a "bill of attainder" as:

Such special acts of the legislature as inflict capital
punishments upon persons supposed to be guilty of high offenses,
such as treason and felony, without any conviction in the
ordinary course of judicial proceedings. If an act inflicts
a milder degree of punishment than death, it is called a
"bill of pains and penalties," but both are included in the
prohibition in the Constitution. (Art. 1, Sec. 9).

Today the courts view a bill of attainder as a legislative act
imposing a punishment on a named individual or identifiable members
of a group. See Nixon v. Administrator of General Services, 433
U.S. 425, 474-475 (1977). Two tests were applied by the Court in
Nixon, supra, to determine whether a statute was punitive. The
first was functional,

. . . analyzing whether the law under challenge,
viewed in terms of the type and severity of burdens
imposed, reasonably can be said to further nonpunitive
legislative purposes . . . Where such
legitimate legislative purposes do not appear, it
is reasonable to conclude that punishment of
individuals disadvantaged by the enactment was
the purpose of the decisionmakers. Id. at 2806- 2807.

The other test was motivational, an inquiry as to whether the
legislative record evinced a Congressional intent to punish.

The exclusion law was enacted by Congress to protect the integrity
of federally funded health care programs. Among other things, the
law was designed to protect program recipients and beneficiaries
from individuals who have demonstrated by their behavior that they
cannot be entrusted with the well-being and safety of recipients and
beneficiaries.

There are two ways that exclusions imposed and directed pursuant to
this law advance the remedial purpose. First, the law protects
recipients and beneficiaries from untrustworthy providers until they
can be trusted to serve program recipients and beneficiaries.
Second, exclusions function as examples to deter providers of items
or services from engaging in conduct which threatens the well-being
and safety of recipients and beneficiaries. See House Rep. No. 95-
393, Part II, 95th Cong., 1st Sess., reprinted in 1977 U.S. Code
Cong. & Admin. News, 3072. Thus, as the exclusion law is a non-
punitive, remedial law, the Act (and its various subsections) is not
a bill of attainder.

4. Petitioner was convicted of a criminal offense.

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.

Petitioner pleaded nolo contendere to one count of abuse of a
disabled person. Findings 2, 3. Under section 1128(i)(3) a plea of
nolo contendere which is accepted by a Federal, State, or local
court constitutes a conviction for the purposes of the Act.

Petitioner argues, however, that he was never "convicted", as after
he pleaded nolo contendere an adjudication of guilt was withheld
and he was placed on probation. Petitioner contends that, as he was
not convicted of a criminal offense under state law, he cannot be
considered as having been "convicted" within the meaning of the Act.

Section 1128 is a federal statute. It defines what constitutes a
conviction independently from the definitions or interpretations
applied by the states. It is not relevant that an action might not
constitute a conviction within the meaning of state law, so long as
the action meets the federal definition of a conviction. James F.
Allen, M.D.F.P., DAB Civ. Rem C-152 at 6 (1990); Carlos E. Zamora,
M.D., DAB Civ. Rem. C-74 (1989), aff'd DAB App. 1104 (1989).
Congress intended that its definition of conviction sweep in the
situation where a party admits or pleads nolo contendere to dispose
of a complaint. In Congress' view, a party's admission of guilt or
nolo contendere is sufficient to establish a conviction, regardless
of how that admission is treated under the various states' criminal
statutes and procedures. Allen at 8 - 9.

The Congressional committee which drafted the 1986 version of
section 1128 stated "If the financial integrity of Medicare and
Medicaid is to be protected, the programs must have the prerogative
not to do business with those who have pleaded to charges of
criminal abuse against them." H.R. No. 727, 99th Cong., 2d Sess.
75, reprinted in 1986 U.S. Code Cong. & Admin. News 3607, 3665; see
Zamora, DAB App. 1104 at 5 - 6.

Furthermore, the fact that a plea of guilty or nolo contendere is
held in abeyance or subsequently expunged does not mean that the
plea is not a conviction within the meaning of section 1128(i).
This section specifically provides that guilty or nolo contendere
pleas which are accepted by courts are "convictions" regardless
whether the conviction or other record is subsequently expunged, or
whether judgment of conviction has been withheld. Social Security
Act, section 1128(i)(1), (4).

Petitioner pleaded nolo contendere. That plea was accepted by the
Alachua County Court. While Petitioner's adjudication of guilt was
then withheld, this is a conviction for the remedial purposes of
sections 1128(i)(3), 1128(i)(4), 1128(a)(2) and 1128(c)(3)(B).

5. Petitioner's "conviction" relates to the neglect or abuse of
patients in connection with the delivery of a health care item or
service.

Sections 1128(a)(2) and 1128(c)(3)(B) of the Act require the I.G. to
exclude individuals and entities from the Medicare and Medicaid
programs when individuals or entities have been "convicted" of
neglect or abuse of patients in connection with the delivery of a
health care item or service. Petitioner pleaded guilty to a
criminal charge that he "did knowingly or willfully abuse, neglect,
or exploit an aged or disabled person, to-wit: Anna Lou Tomlinson
and by such omission and/or failure, significantly impaired and/or
jeopardized the physical or emotional health of the patient contrary
to Section 415.111(4), Florida Statutes." (Emphasis added.) I.G. Ex.
1.

Petitioner, in his hearing request, has argued that section
1128(a)(2) necessitates a basis for a conviction of neglect or abuse
of patient(s) in the plural, and that he was convicted of neglecting
or abusing only one patient. Section 1128(a)(2), however, does not
require that the offense include abuse or neglect of more than one
patient. Rather, section 1128(a)(2) describes the offense as "a
criminal offense relating to neglect or abuse of patients" and
concerns the issue of whether or not a petitioner's offense relates
to patient abuse or neglect, not to the number of patients a
petitioner might have neglected or abused. (Emphasis added.)

On its face the charging document refers to Ms. Tomlinson as a
"patient" of Petitioner's. Thus, when Petitioner pleaded nolo
contendere he was pleading guilty to the neglect or abuse of a
patient. Evidence presented at the hearing makes it quite clear
that such neglect or abuse took place in the setting of the
University Nursing Care Center, where Petitioner delivered health
care services to patients. Findings 1, 5, 6, 7. I conclude
therefore, that Petitioner was convicted of a criminal offense
within the meaning of section 1128(a)(2) of the Act.

5. The ten year exclusion imposed and directed by the I.G. is
reasonable.

The I.G. excluded Petitioner for ten years. The I.G. is required by
law to exclude a petitioner for a minimum of five years under
sections 1128(a)(2) and 1128(c)(3)(B). There is no mandated maximum
exclusion period for exclusions imposed pursuant to section 1128.
In this case the I.G. determined to impose a ten year exclusion as
he found:

The program violations had a significant
adverse physical, mental or financial
impact on program beneficiaries or
patients.

In determining the reasonableness of an exclusion, the primary
consideration must be the degree to which the exclusion serves the
law's remedial objectives of protecting program recipients and
beneficiaries from untrustworthy providers and acting as an example
to deter other providers from engaging in similar conduct. An
exclusion is not excessive if it does reasonably serve these
objectives, even if it has an adverse impact on the person against
whom it is imposed.

The hearing is, by law, de novo. Social Security Act, section
205(b). Evidence which is relevant to the reasonableness of an
exclusion will be admitted in a hearing on an exclusion whether or
not that evidence was available to the I.G. at the time the I.G.
made his exclusion determination. Moreover, evidence which relates
to a petitioner's trustworthiness or to the remedial objectives of
the exclusion law is admissible at an exclusion hearing, even if
that evidence is of conduct other than that which establishes
statutory authority to exclude a petitioner. The purpose of the
hearing is not to determine how accurately the I.G. applied the law
to the facts before him, but whether, based on all relevant
evidence, the exclusion comports with legislative intent.

The Secretary has adopted regulations to be applied in exclusion
cases. The regulations specifically apply only to exclusions for
"program-related" offenses (convictions for criminal offenses
relating to Medicare and Medicaid). However, they express the
Secretary's policy for evaluating cases where the I.G. has some
discretion in determining the length of an exclusion. Thus, the
regulations are instructive as broad guidelines for determining the
appropriate length of exclusions in cases where the Secretary has
discretionary authority to exclude individuals and entities. The
regulations require the I.G. to consider factors related to the
seriousness and program impact of the offense, and to balance those
factors against any mitigating factors that may exist. 42 C.F.R.
1001.125(b)(1) - (7).

An exclusion determination will be held to be reasonable where,
given the evidence in the case, it is shown to fairly comport with
legislative intent. "The word 'reasonable' conveys the meaning that
. . . [the I.G.] is required at the hearing only to show that the
length of the [exclusion] determined . . . was not extreme or
excessive." (Emphasis added.) 48 Fed. Reg. 3744 (Jan. 27, 1983).
However, based on the law and the evidence, should I determine that
an exclusion is unreasonable, I have authority to modify the
exclusion. Social Security Act, section 205(b).

The evidence in this case overwhelmingly establishes that Petitioner
abused gravely disabled individuals who were entrusted to his care.
These individuals were utterly dependent on Petitioner to provide
them with the minimum necessities to sustain them. The evidence
shows that Petitioner treated these patients with disdain, and, at
times, engaged in acts of cruelty against them. There is no
evidence of record which would mitigate or even explain Petitioner's
conduct. Petitioner is a manifestly untrustworthy individual, and
the evidence in this case amply justifies the ten-year exclusion
imposed by the I.G.

The testimony of Ms. Shirley Shealy is especially critical to my
understanding of the nature and circumstances surrounding
Petitioner's conduct towards patients. She had direct contact with
Petitioner and was able to observe Petitioner interacting with his
patients. She provided graphic testimony that Petitioner mistreated
these individuals. Petitioner's cruelty towards patients included
restraining and abandoning an elderly and hopelessly mentally
incapacitated patient. Hours later, Ms. Shealy found this patient
bound to a chair, amid her own feces and urine.

Petitioner has not contested any of this testimony, despite ample
opportunity provided at the hearing both to cross-examine the I.G.'s
witnesses or to testify on his own behalf. During the hearing,
after listening to the testimony of the I.G.'s witnesses, Petitioner
stated it had been so long since the incidents in question that he
didn't recall details, and that he would rely on the legal arguments
presented by his attorney in his hearing request. Tr. at 61 - 62.
In the absence of any rebuttal by Petitioner, I infer that
Petitioner concedes the truthfulness of the I.G.'s witnesses'
testimony.

Although Petitioner pleaded nolo contendere to, and was convicted
of, only one count of his indictment, Ms. Shealy's testimony depicts
a disturbing pattern of abusive conduct towards elderly and
incompetent persons in his care. Finding 7. Petitioner did not
seem to understand the harm he could cause to his patients, and
scorned those who tried to work with these patients in a caring
manner. Tr. at 34 -35. While Petitioner's patients may not have
been cognizant of their surroundings, they could still feel
discomfort and pain. Tr. at 22 - 23. The contrast between this
pattern of conduct and the level of care Petitioner was obliged to
provide to these patients (Finding 5) demonstrates the extent of his
abuse.


The unrebutted evidence in this case provides strong justification
for the exclusion imposed by the I.G. The ten-year exclusion is, in
this case, entirely consistent with the remedial purpose of section
1128.


CONCLUSION

I conclude that the exclusion imposed and directed against
Petitioner is reasonable. Given the facts of this case, a ten year
exclusion is needed to protect program beneficiaries and recipients
and the integrity of federally-funded health care programs.

___________________________
Steven T. Kessel
Administrative Law Judge


* * * Footnotes * * *

1. "State health care program" is defined by section
1128(h) of the Social Security Act to include any State Plan
approved under Title XIX of the Act (such as Medicaid). I use the
term "Medicaid" hereafter to represent all State health care
programs from which Petitioner was excluded.
2. Inspector General Exhibits 1 and 2 refer to Petitioner
as Ronald Allen Courmier. Documents submitted by Petitioner to the
Civil Remedies Division refer to him as Ronald Allen Cormier.
Petitioner did not object to the introduction of these exhibits, and
from this I infer that Ronald Allen Courmier and Ronald Allen
Cormier are one and the same person.
3. The I.G.'s exhibits and the hearing transcript will be
referred to as follows:

I.G.'s Exhibit I.G. Ex. (number)/(page)

Hearing Transcript Tr. (page).


4. The exclusion law did not bar Petitioner from appealing
his conviction in State court.