Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD
Civil Remedies Division
In the Case of:
Dawn Potts,
Petitioner,
- v. -
The Inspector General.
DATE: March 15, 1991
Docket No. C-291
DECISION
On August 14, 1990, the Inspector General (I.G.) notified
Petitioner that she was being excluded from participation
in Medicare and State health care programs. 1/ The
I.G. told Petitioner that she was being excluded for five
years as a result of her conviction in a Florida 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 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 decision. The I.G. moved for summary disposition.
On January 28, 1991, I issued a Ruling which granted in
part and denied in part the I.G.'s motion. I ruled that,
based on the undisputed material facts and the law, the
I.G. had established that Petitioner was "convicted" of a
criminal offense within the meaning of section 1128 of
the Act. I also ruled that the undisputed facts did not
establish that Petitioner had been convicted of a
criminal offense relating to the neglect or abuse of
patients within the meaning of section 1128(a)(2) of the
Act.
I afforded the parties the opportunity to file additional
submissions in connection with the motion for summary
disposition. The parties have done so. I now conclude
that, based on the undisputed material facts and the law,
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, as described
by section 1128(a)(2) of the Act. I conclude that the
I.G. had no choice but to exclude Petitioner from
participating in Medicare and Medicaid for at least five
years. Therefore, I sustain the five-year exclusion
which the I.G. imposed and directed against Petitioner.
ISSUES
The issue in this case is whether Petitioner was
convicted of a criminal offense relating to the neglect
or abuse of a patient within the meaning of section
1128(a)(2) of the Act.
FINDINGS OF FACT AND CONCLUSIONS OF LAW 2/
1. On March 5, 1990, Petitioner was charged under
Florida law with the criminal offense of failing to
report a case of known or suspected abuse, neglect, or
exploitation of an aged person or disabled adult. I.G.
Ex. A. 3/
2. On May 22, 1990, the County Court of Marion County,
Florida, entered a disposition of the criminal charge
against Petitioner. I.G. Ex. E.
3. Adjudication of guilt against Petitioner was
withheld. I.G. Ex. E; P. Hrg. Req. 1. 4/
4. Petitioner was sentenced to pay a fine of $100.00
and to pay court costs of $87.50. I.G. Ex. E.
5. Petitioner had worked in the position of house
manager at a facility named the Ocala Cluster. I.G. Ex.
D.
6. Petitioner's duties as house manager included
insuring that employees at the Ocala Cluster provide
proper care for residents of the facility. I.G. Ex. I.
7. The Ocala Cluster is a facility, licensed by the
State of Florida, which provides health care for mentally
retarded persons. I.G. Ex. F and G.
8. Residents of the Ocala Cluster are, therefore,
patients within the meaning of section 1128(a)(2) of the
Act.
9. The incident which was the basis for the criminal
charge against Petitioner occurred at the Ocala Cluster.
I.G. Ex. D.
10. In the course of her duties as house manager,
Petitioner was informed that one of the employees whom
she supervised had struck a resident of the Ocala
Cluster. I.G. Ex. D.
11. The individual who allegedly had been struck was a
profoundly mentally retarded resident, who received
health care at the Ocala Cluster. I.G. Ex. A and H.
12. Petitioner did not report this incident to State
authorities as required by Florida law. I.G. Ex. D.
13. The criminal charge against Petitioner involved
Petitioner's failure to report the alleged striking of
the resident by an employee whom Petitioner supervised.
Findings 1-12.
14. Petitioner was convicted of a criminal offense
within the meaning of section 1128(i) of the Act.
Findings 1 and 2; Social Security Act, Section 1128(i).
15. Petitioner was convicted of a criminal offense
relating to neglect or abuse of patients within the
meaning of section 1128(a)(2) of the Act. Findings 1-14;
Social Security Act, section 1128(a)(2).
16. 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).
17. On August 14, 1990, the I.G. excluded Petitioner
from participating in Medicare and directed that she be
excluded from participating in Medicaid, pursuant to
section 1128 of the Social Security Act.
18. There are no disputed issues of material fact in
this case and summary disposition is appropriate.
19. The exclusion imposed and directed against
Petitioner by the I.G. is for five years, the minimum
period required for exclusions pursuant to section
1128(a)(2) of the Social Security Act. Social Security
Act, section 1128(c)(3)(B).
20. The exclusion imposed and directed against
Petitioner by the I.G. is mandated by law. Social
Security Act, sections 1128(a)(2) and 1128(c)(3)(B).
ANALYSIS
There are no disputed material facts in this case.
Petitioner was employed as a house manager, a supervisory
position, at the Ocala Cluster, a Florida residential
care facility for mentally retarded persons. In the
course of her assigned duties, Petitioner learned that an
employee whom she supervised at the Ocala cluster
allegedly had struck a profoundly mentally retarded
resident. Petitioner did not report this episode to
State authorities.
Florida law requires a person to immediately report to
State authorities any incident of neglect or abuse of an
aged or disabled person that he or she knows or
reasonably suspects to have occurred. Florida Statutes,
415.103. Failure to make such a report is a criminal
offense under Florida law. Florida Statutes, 415.111.
Petitioner was charged with this offense, and eventually
a disposition of the charge was entered in Petitioner's
case. The court's records relate that adjudication of
guilt against Petitioner was withheld, and she was
sentenced to pay a fine of $100.00 and court costs of
$87.50.
21. Petitioner was "convicted" of a criminal offense
within the meaning of section 1128 of the Social Security
Act.
The issue which I must resolve is whether, based on these
undisputed material facts, Petitioner has been convicted
of a criminal offense relating to the neglect or abuse of
a patient in connection with the delivery of a health
care item or service, as described in section 1128(a)(2)
of the Act. If so, then I must affirm the five-year
exclusion imposed and directed against Petitioner by the
I.G., because the Act mandates exclusions of at least
five years for persons convicted of criminal offenses as
described in section 1128(a)(2). Social Security Act,
sections 1128(a)(2) and 1128(c)(3)(B).
In deciding that issue, I must first decide whether
Petitioner was "convicted" of a criminal offense within
the meaning of the Act. Based on the undisputed facts, I
conclude that Petitioner was "convicted" of a criminal
offense. Petitioner has admitted that she was found
guilty of the offense of which she had been charged after
a jury trial. P. Hrg. Req. 1. Section 1128(i)(2) of the
Act defines "convicted" of a criminal offense to include
cases where there has been a finding of guilt.
Petitioner was sentenced to pay a fine and court costs
pursuant to a disposition which recited that adjudication
of guilt was withheld. Finding 2; I.G. Ex. E.
Section 1128(i)(4) of the Act defines "convicted" of a
criminal offense to include:
[W]hen 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 there is no document which precisely
explains the meaning, under Florida law, of a disposition
in which adjudication of guilt is withheld. I conclude
that in light of Petitioner's admission that she was
found guilty after a jury trial and sentenced to pay a
fine and court costs, the disposition in her case
constituted either a finding of guilt (section
1128(i)(2)) or a disposition where judgment of conviction
was withheld (section 1128(i)(4)). A jury finding of
guilt would fall precisely within the definition
contained in section 1128(i)(2). A disposition where
adjudication of guilt is withheld is synonymous with a
disposition where judgment of conviction is withheld in
light of the fact that the disposition included the
sentence of payment of a fine and court costs.
22. 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.
I must next decide whether Petitioner's conviction is for
a criminal offense relating to neglect or abuse of a
patient in connection with the delivery of a health care
item or service. It is evident from the undisputed
material facts that the statutory criteria have been met
in this case.
Under section 1128(a)(2), the statutory criteria may be
met in one of two circumstances. First, a party who is
convicted of patient neglect or abuse will be found to
have been convicted of an offense within the meaning of
the section. Ronald Allen Cormier, DAB Civ. Rem C-206
(1990). Second, a party who is convicted of an offense
relating to patient neglect or abuse will be found to
have been convicted of an offense within the meaning of
the section.
In this case, Petitioner's conviction amounted to a
conviction for neglect of a patient. Therefore,
Petitioner was convicted of an offense within the meaning
of section 1128(a)(2). The undisputed facts which direct
this conclusion are as follows. First, the individual
against whom an abusive act was allegedly perpetrated was
a patient in a health care facility. This individual was
a profoundly retarded person who was institutionalized at
the Ocala Cluster, a facility devoted to the residential
care of retarded persons. Findings 7 and 11. Second,
the allegedly abusive act was perpetrated in connection
with the delivery of a health care item or service. This
conclusion logically follows from the patient's state of
dependency and the fact that the alleged abusive conduct
was reported to Petitioner as having been perpetrated
against the patient by an employee whom Petitioner
supervised. It is not unreasonable to infer that the
patient in question was utterly dependent on the staff at
the Ocala Cluster for even the essential minimum services
necessary for her survival. See I.G. Ex. H. Given that,
the patient's maintenance at the Ocala Cluster is a
health care item or service, and any act perpetrated
against that patient by a staff employee in the course of
that patient's residence at the Ocala Cluster must be
deemed to be in connection with the delivery of a health
care item or service.
Third, Petitioner's failure to report the allegations of
abuse constituted an act of "neglect" within the meaning
of section 1128(a)(2). The term "neglect" is not defined
in section 1128. In the absence of a statutory
definition, the term must be defined according to its
common and ordinary meaning. In the context of section
1128, "neglect" means failure to attend to the needs of
patients in circumstances where the treating party is
under a duty to provide care. Summit Health Care
Limited, dba Marina Convalescent Hospital, DAB Civ. Rem.
C-108 (1989), affirmed DAB App. 1173 (1990). Here,
Petitioner's duties as a house manager at the Ocala
Cluster included caring for the needs of patients under
her charge. Her duty of care under State law included
the duty to report incidents which might place patients
in jeopardy of their health or safety. Her failure to
report an act of alleged abuse against one of those
patients breached that duty of care to that patient and
constituted an act of "neglect" within the meaning of
section 1128(a)(2). 5/ Her conviction of a criminal
offense resulting from her failure to report the alleged
act of abuse therefore constituted a conviction of a
criminal offense for "neglect" of a patient within the
meaning of the Act.
It is not relevant to the question of whether Petitioner
was convicted of a criminal offense within the meaning of
the Act whether or not the patient actually was abused.
There is no evidence in this case which proves that an
act of abuse actually was committed against the patient.
The act which triggered Petitioner's conviction and
which ultimately is the basis for the exclusion in this
case is Petitioner's failure to report an allegation of
abuse, where Petitioner was under a duty to make such a
report. Her failure to report such allegation was an act
of neglect under Florida law and within the meaning of
section 1128(a)(2).
23. The exclusion imposed and directed against
Petitioner is mandated by law.
Section 1128(a)(2) mandates exclusion of parties who are
convicted of offenses as described in that section. In
such cases, Congress gave the Secretary no discretion to
impose exclusions of less than five years. Therefore, I
must affirm the exclusion imposed and directed here by
the I.G.
Petitioner argues that section 1128(a)(2) should not be
applied to mandate her exclusion, because to do so would
produce an unfair result. She argues that her failure to
report the allegations of abuse resulted from her concern
that the charges against the employee whom she supervised
might not be true. Petitioner contends that she
misunderstood her duty to report such allegations. She
asserts in effect that she is a dedicated and
compassionate health care provider, who is being unfairly
penalized.
Although I have no choice but to affirm the exclusion, I
am nonetheless sympathetic with Petitioner. It appears
from the undisputed facts that, at most, Petitioner
exercised poor judgment as to her responsibilities. It
is quite possible that Petitioner was acting in good
faith. It may well be, as Petitioner contends, that she
has learned her lesson and will never again repeat her
mistake. However, Congress has not given the Secretary
discretion to reduce exclusions under section 1128(a)(2)
beneath the five year minimum mandatory period. Congress
determined as a matter of legislative policy that cases
of patient abuse and neglect pose such a threat to
program beneficiaries and recipients that minimum
exclusions of five years were necessary for the
protection and well-being of beneficiaries and
recipients. The inevitable consequence of that policy
determination is that in some cases, such as this one,
application of the Act will produce results which seem to
be harsh.
CONCLUSION
Based on the undisputed material facts and the law, I
conclude that the I.G.'s determination to exclude
Petitioner from Medicare, and to direct that Petitioner
be excluded from participation in Medicaid, for five
years, 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
* * * Footnotes * * *
1. "State health care program" is defined by
section 1128(h) of the Social Security Act to cover three
types of federally-financed health care programs,
including Medicaid. I use the term "Medicaid" hereafter
to represent all State health care programs from which
Petitioner was excluded.
2. The parties' exhibits and memoranda will be
referred to as follows:
I.G.'s Exhibit I.G. Exhibit (number)/(page)
Petitioner's Hearing
Request P. Hrg. Req. (page)
3. The I.G. filed two sets of exhibits in
connection with his motion for summary disposition in
this case. The I.G. filed his first set of exhibits as
an attachment to his motion for summary disposition. The
I.G. chose to identify the exhibits in this first set as
Exhibits A through E. The I.G. filed his second set of
exhibits as an attachment to his supplemental memorandum
in support of his motion for summary disposition. The
I.G. chose to identify the exhibits in this second set as
Exhibits A through D. Because of the obvious potential
for confusion resulting from multiple exhibits with the
same identifier, I have opted to reidentify the exhibits
in the second set. These exhibits are now identified as
I.G. Exhibits F (formerly Exhibit A), G (formerly Exhibit
B), H (formerly Exhibit C), and I (formerly Exhibit D).
4. The judgment does not indicate a trial by
jury with a verdict of guilty. In her hearing request,
Petitioner states that she was found guilty by a jury.
5. Because I conclude that Petitioner was
convicted of an act of neglect, I do not need to decide
whether Petitioner was convicted of an offense relating
to an act of neglect or abuse.