Decision No. CR651
Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD
Civil Remedies Division

SUBJECT:

Odessa Moore,

Petitioner,

The Inspector General

This case is before me pursuant to an undated request for hearing filed by Odessa Moore (Petitioner), which was received by the Civil Remedies Division of the Departmental Appeals Board (DAB) on September 14, 1999.

By letter dated July 30, 1999, the Inspector General (I.G.) notified Petitioner that she was being excluded from participation in the Medicare, Medicaid, and all federal health care programs, as defined in section 1128B(f) of the Social Security Act (Act), for a period of five years, the minimum mandatory period of exclusion under the Act. The I.G. then informed Petitioner that the I.G. had excluded her under section 1128(a)(2) of the Act, due to her conviction in the Municipal Court of Grenada, Mississippi, of a criminal offense related to abuse or neglect of patients in connection with the delivery of a health care item or service. Additionally, the I.G. informed her that no payment would be made to any entity in which she served as an employee or in any other capacity for any services performed by her.

I held a telephone prehearing conference in this case on November 9, 1999. During the conference, I advised Petitioner of her right to representation. Petitioner elected to appear on her own behalf. Also during the conference, the parties agreed that this matter could be decided based on written arguments and documentary evidence and that an in-person evidentiary hearing was unnecessary. Each party has made a written submission in support of their contentions. Additionally, the I.G. submitted seven proposed exhibits. These have been identified as I.G.

Exhibits (I.G. Exs) 1-7. Petitioner offered no documentary evidence. In the absence of objection, I am admitting into evidence I.G. Exs. 1-7.

Based on the documentary evidence, the applicable law and regulations, and the arguments of the parties, it is my decision to sustain the determination of the I.G. to exclude Petitioner from participating in the Medicare, Medicaid, and all federal health care programs, for a period of five years. I find that Petitioner was convicted under State law of a criminal offense relating to neglect or abuse of patients in connection with the delivery of a health care item or service. Additionally, I find that the five-year exclusion imposed by the I.G. is the minimum period of exclusion mandated by law. Thus, I am unable to consider whether the length of Petitioner's exclusion is unreasonable.

Whether the I.G. had a basis upon which to exclude Petitioner from participation in the Medicare, Medicaid, and all federal health care programs.

Section 1128(a)(2) of the Act authorizes the Secretary of the Department of Health and Human Services (Secretary) to exclude from participation in Medicare, Medicaid, and all federal health care program [as defined in section 1128B(f) of the Act], any individual convicted under federal or State law, of a criminal offense relating to neglect or abuse of patients in connection with the delivery of a health care item or service.

Any exclusion under section 1128(a)(2) of the Act must be for a minimum period of five years. Act, section 1128(c)(3)(B); 42 C.F.R. § 1001.102(a).

Pursuant to 42 C.F.R. § 1001.2007, a person excluded under section 1128(a)(2) of the Act may file a request for hearing before an administrative law judge (ALJ).

1. Petitioner was employed by Grenada Lake Medical Center in Grenada, Mississippi, as a nurse's aide. I.G. Exs. 5, 6.



2. On March 19, 1999, an affidavit was signed by an investigator from the Mississippi Attorney General's Office charging Petitioner with hitting a 79-year old vulnerable adult in the face with her hand. A separate memorandum prepared by this same investigator indicates that Petitioner's action was taken in the process of forcing this vulnerable adult to take medication while he was a patient at Grenada Lake Medical Center. I.G. Exs. 4, 6.



3. Based on this affidavit, Petitioner was indicted on April 22, 1999 and convicted in the Municipal Court of Grenada, Mississippi, on May 25, 1999, of one count of misdemeanor abuse of a 79-year old patient at Grenada Lake Medical Center. I.G. Exs. 4, 7.



4. Petitioner has been convicted, under State law, 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 set forth in section 1128(a)(2) of the Act.



5. The Secretary has delegated to the I.G. the authority to determine and impose exclusions from Medicare, Medicaid, and all federal health care programs pursuant to section 1128(a) of the Act.



6. Pursuant to section 1128(a)(2) of the Act, the I.G. is required to exclude Petitioner from participating in Medicare, Medicaid, and all federal health care programs.



7. The minimum mandatory period of exclusion under section 1128(a)(2) of the Act is five years. Act, section 1128(c)(3)(B).



8. The I.G. properly excluded Petitioner from participating in Medicare, Medicaid, and all federal health care programs, for five years.

Petitioner was a nurse's assistant⁽¹⁾ employed by the Grenada Lake Medical Center on October 27, 1998, although she was off duty at the time of the incident in question. I.G. Exs. 6, 7. On that day, she was observed hitting a 79-year old patient in that medical facility in the face with her hand. I.G. Exs. 4, 6. For this, she was indicted on April 22, 1999, of abuse of a vulnerable adult. I.G. Exs. 2, 7. On May 25, 1999, she was convicted of one count of misdemeanor abuse of a 79-year old patient. I.G. Exs. 2, 7. Petitioner was sentenced to six months in jail, suspended, two years, unsupervised probation, fined $1,000, and assessed court costs. Id. An investigative report in the case indicates that Petitioner's assault occurred in the process of forcing medication on the victim. I.G. Ex. 6.

That Petitioner was off duty at the time of the assault does not diminish the fact that she is an "individual convicted under Federal or State law, of a criminal offense relating to neglect or abuse of patients in connection with the delivery of a health care item or service." Act, section 1128(a)(2). The essential elements for mandatory exclusion are the existence of a conviction for neglect or abuse of a patient and that such neglect or abuse occur in connection with the delivery of a health care item or service. These elements are present in this case. Specifically, Petitioner has been convicted (in the Municipal Court of Grenada, Mississippi) of committing abuse by hitting a 79-year old patient in the face, which abuse was in the process of delivering a health care item or service to this patient, i.e., trying to get the patient to take medication.⁽²⁾

In her hearing request and written submission, Petitioner asserts that she was treated unfairly because she did not mistreat anyone. Her conviction came about, she stated, through a guilty plea on the advice of court appointed counsel. Furthermore, she alleges being unable to work and obtain funds to purchase her high blood pressure and diabetes medication due to her exclusion.⁽³⁾

Pursuant to section 1128(a)(2) of the Act and 42 C.F.R. § 1001.2007, an excluded individual under this section may file a request for hearing before an ALJ on the issue of whether:

• The basis for the imposition of a sanction exists, and



• The length of exclusion is unreasonable.

However, when the I.G. imposes an exclusion for the minimum mandatory five-year period, the issue of the length of that exclusion is not considered. 42 C.F.R. § 1001.2007(a)(2). This is because Congress has established a minimum mandatory exclusion period of five years. Aggravating factors for lengthening a period of exclusion may be considered, but the five-year period cannot be shortened.

Thus, the only issue in this case is whether a basis exists for the sanction. Moreover, 42 C.F.R. § 1001.2007(d), provides that:

In the case of Peter J. Edmonson, DAB No. 1330 (1992), in response to the petitioner's argument that he was innocent of the conduct for which he was convicted and that he had incompetent assistance of counsel, an appellate panel of the Departmental Appeals Board held:

Edmonson, DAB No. 1330, at 4.

The appellate panel went on say that:

Edmonson, DAB No. 1330, at 5.

It is evident that Petitioner's conduct is the type of untrustworthy conduct that Congress sought to prevent. It follows, then, that a person who abuses patients is not fit to participate in Medicare, Medicaid, and all other federal health care programs. This is consistent with the Secretary's duty to assure that the requirements which govern the provision of health care, and the enforcement of those requirements, are adequate to protect the health, safety, welfare, and rights of beneficiaries and recipients of these programs.

In view of the clear statutory and regulatory language, Petitioner's defense, which is grounded on alleged innocence and inadequate representation, cannot prosper. Congress left no room for discretion under these circumstances. I am, therefore, prohibited from providing equitable relief.

Sections 1128(a)(2) and 1128(c)(3)(B) of the Act mandate that Petitioner be excluded from Medicare, Medicaid, and all federal health care programs for a period of at least five years because she was convicted of a criminal offense relating to abuse or eglect of a patient in connection with the delivery of a health care item or service. Petitioner's five-year exclusion is therefore sustained.

Jose A. Anglada
Administrative Law Judge

1. Petitioner was not a certified nurse's assistant (CNA) on October 27, 1998. I.G. Ex. 5. However, Petitioner's lack of certification does not affect my decision that she is subject to a minimum mandatory five-year exclusion in this case.

2. I note that this 79-year old patient was Petitioner's brother-in-law. I.G. Ex. 6. However, this family relationship does not alter the essence of Petitioner's conviction and is unrelated to the issue before me.

3. Petitioner's reference to her lack of funds for the purchase of medication does not warrant discussion here, as it is unrelated to the issue before me.