SUBJECT:

Eleanor D'Angelo, L.P.N.,

Petitioner,

The Inspector General

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 four proposed exhibits (I.G. Exs. 1-4). Petitioner did not object to these exhibits and I therefore admit them into evidence. Petitioner submitted a response brief and no proposed exhibits.

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 five years.

Petitioner contends that her conviction for a "violation" of the New York Penal Law is not the legal equivalent of a conviction for a "criminal" offense and cannot be the basis for an exclusion under section 1128(a)(2) of the Act. In particular, Petitioner maintains that her conviction for harassment does not relate to conduct which rises to the level of "criminal" misconduct. She maintains that, although the original indictment alleged facts and specified offenses which may constitute criminal offenses, she in fact pled guilty to lesser offenses which do not constitute criminal offenses and also do not establish the elements of patient abuse or mistreatment. In her brief, Petitioner notes that, under New York State law, crimes are defined as "felonies or misdemeanors" and consequently, her conviction for an offense defined as a "violation" under New York State law does not constitute a criminal offense within the scope of the Act.

1. At all times relevant herein, Petitioner was a licensed practical nurse in the State of New York. I.G. Ex. 4.

2. During the period at issue, Petitioner was employed as a licensed practical nurse at Meadowbrook Care Center, a nursing home facility in Freeport, New York. I.G. Exs. 2, 4.

3. On May 18, 1998, a criminal accusation was filed in the District Court of Nassau County, State of New York, against Petitioner, who was charged with one count of "Wilful Violation of the Public Health Law" in violation of §§ 12-b(2) and 2803-d(7) of the New York Public Health Laws. I.G. Ex. 4.

4. The accusation charged that, on February 20, 1998 at Meadowbrook Care Center where she was employed as a licensed practical nurse, Petitioner did wilfully violate the New York Public Health Law "by forcing back the head of nursing home resident, by intentionally pulling her hair back and repeatedly forcing medication into her mouth, thereby committing an act of physical abuse of said resident." I.G. Ex. 4.

5. On October 10, 1998, Petitioner pled guilty to one count of harassment in the second degree in violation of New York Penal Law § 240.26. I.G. Ex. 2 at 2.

6. On October 10, 1998, the court sentenced Petitioner to a one-year conditional discharge. I.G. Ex. 2.

7. On February 29, 2000, 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 sections 1128(a)(2) and 1128(c)(3)(B) of the Act. I.G. Ex. 1.

8. Petitioner's guilty plea constitutes a conviction within the meaning of sections 1128(i)(1) and (3) of the Act.

9. Petitioner's conviction constitutes a conviction for a "criminal offense" as that term is used in section 1128(a)(2) of the Act.

10. Petitioner's conviction for harassment, relating to her actions involving a patient in her care, was an offense relating to the neglect or abuse of a patient and is connected with the delivery of a health care item or service within the meaning of section 1128(a)(2) of the Act.

11. The mandatory minimum period for an exclusion pursuant to sections 1128(a)(2) and 1128(c)(3)(B) 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.

To justify excluding an individual pursuant to section 1128(a)(2) of the Act, the I.G. must prove that:

(1) the individual charged has been convicted of a criminal offense;

(2) the conviction is related to the 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 deemed to have been 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 only satisfy 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 sections 1128(i)(1) and (3) of the Act. The record reflects that Petitioner admitted her guilt in court. The court then accepted Petitioner's guilty plea and sentenced her. Petitioner was therefore "convicted" of a criminal offense within the meaning of sections 1128(i)(1) and (3) of the Act. Carlos E. Zamora, M.D., DAB CR22 (1989), aff'd, DAB No. 1104 (1989); Anthony A. Tommasiello, DAB CR282 (1993).

I further find that Petitioner's conviction for harassment constitutes a conviction for a "criminal" offense within the scope of the Act and is not merely a non-criminal "violation" as Petitioner claims. In Carmencita Alhabsi, DAB CR555 (1998), I sustained a five-year exclusion imposed against the petitioner, a nurse employed in a nursing home. In Alhabsi, the petitioner was found subject to exclusion under section 1128(a)(2) based on her convictions for harassment in the second degree of a nursing home patient, in violation of New York Penal Law § 240.26, and one count of disorderly conduct, in violation of New York Penal Law § 240.20. DAB CR555 at 3. In that case, I stated that "[i]t is clear that Federal law supercedes State law for purposes of determining whether an individual has been convicted of a criminal offense." Id. at 5; see also, Diaz v. Chasen, 642 F.2d 764, 765 (5th Cir. 1981); Bowles v. Seminole Rock & Sand Co., 325 U.S. 410 (1945); Dickerson v. New Banner Institute, Inc., 460 U.S. 103, 112 (1983). Therefore, whether New York State treats convictions for violations of the Penal Code differently than a conviction for misdemeanors or felonies is not relevant to the issue of whether Petitioner's conviction triggered the exclusion provisions of section 1128(a)(2) of the Act. Section 1128(a)(2) of the Act requires that an individual be convicted of a "criminal offense;" it does not specify that individuals may be excluded only if they are convicted of misdemeanors or felonies. See, e.g., Glen E. Bandel, DAB CR261 (1993) ("Because section 1128(a)(2) does not specify a criminal offense of a particular grade, the I.G.'s authority to exclude Petitioner is not affected by the fact that the offense was a simple misdemeanor.").

The facts in this case support the conclusion that Petitioner was convicted of a "criminal offense." A wilful violation of the health laws is punishable by imprisonment or a fine. New York Public Health Law, section 12-b(2). Harassment, the charge to which Petitioner pled guilty, is codified in the New York Penal Code. As part of her sentence, Petitioner faced the possibility of time in jail if she failed to fulfill the conditions of her sentence. On these facts, I find that Petitioner's offense constitutes a "criminal offense" within the scope of section 1128(a)(2) of the Act. See Alhabsi at 6.

I further find that Petitioner's conviction was related to the abuse or neglect of a patient, within the scope of section 1128(a)(2) of the Act. Petitioner was charged in the accusation with wilful violation of the New York State health laws because she, in an act of abuse, forced back the head of a nursing home resident by pulling back her hair and repeatedly forced medication into her mouth. I.G. Ex 4. A conviction need not be for an offense called "patient abuse" or "patient neglect;" it need only "relate" to neglect or abuse. Patricia Self, DAB CR198 (1992). In Patricia Self, the petitioner was a nurse's aide who pled nolo contendere to a charge of battery. The petitioner allegedly struck a nursing home patient with an electrical cord. The ALJ held that it was sufficient that a party was convicted of an offense based on charges of neglectful or abusive conduct even if the crime for which the party is convicted is not specifically labeled "abuse."

In determining whether exclusion is appropriate under section 1128(a)(2) of the Act, 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). In the present case, Petitioner's conviction for harassment was based upon her mistreatment of a patient. I.G. Exs. 2 and 4. Because the terms "neglect" and "abuse" are not defined in section 1128(a)(2) of the Act, the DAB has determined that they should be given their ordinary and common meaning. "Neglect" includes "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." Rosette Elliott, DAB CR84 (1990). I find that Petitioner's treatment of the resident falls within the common and ordinary meaning of the terms "negligence" and "abuse."

The charge to which Petitioner pled guilty support the I.G.'s contention that her conviction was based on her abuse of a resident. A conviction for harassment in the second degree requires that an individual "with intent to harass, annoy, or alarm another person . . . . strikes, shoves, kicks, or otherwise subjects such other person to physical conduct or attempts or threatens to do the same; or . . . . follows a person in or about a public place . . . . or . . . . engages in a course of conduct or repeatedly commits acts which alarm or seriously annoy such other person and which serve no legitimate purpose." New York Penal Law, section 240.26.

I find that Petitioner's conviction for harassment, with the additional evidence in the record which explains the basis of the charges, supports a finding that Petitioner was convicted of a crime related to the abuse or neglect of a resident.

Civil Remedies Division (CRD) case law supports my determination that Petitioner's criminal conviction constitutes one for abuse or neglect. In Jacqueline L. Dennis, R.N., DAB CR404 (1995), the ALJ found that the petitioner was properly excluded for five years. The petitioner, a registered nurse, was charged with four counts of wilful violation of the health laws, in violation of §§ 12-b(2) and 2803-d(7) of the New York State Public Health Law and three counts of falsifying business records in the second degree, in violation of § 175.05(1) of the New York Penal Law. The petitioner had failed to provide appropriate treatment to three patients in her care and then made false entries in the patients' charts to indicate that she had provided proper services. See Alhabsi. The petitioner pled guilty to one count of wilful violation of the health laws. In upholding the petitioner's exclusion, the ALJ found that her failure to perform proper services and her falsification of records constituted patient abuse or neglect and warranted exclusion under section 1128(a)(2) of the Act.

In a similar case, Janet Wallace, L.P.N., DAB CR155 (1991); aff'd, DAB No. 1326 (1992), an appellate panel of the Departmental Appeals Board (DAB) upheld a five-year exclusion against a nurse who failed to administer a dose of medication to a residential care facility patient and then made a false entry in the patient's chart to indicate that she had given the medication as prescribed. The petitioner was charged with violation of § 12-b(2) of the New York State Public Health Law. She pled guilty to this charge and was sentenced to community service and conditional discharge.

I also find that Petitioner's abuse of a patient occurred in connection with the delivery of a health care item or service. Where an attack occurs in a health care facility where the victim had been residing as a patient, and the perpetrator was a facility employee whose duty was to assist in the care of patients, this conviction is deemed to be related to the delivery of health care. Patricia McClendon, DAB CR264 (1993). In the matter before me, the victim of Petitioner's neglect or abuse, the resident was a patient of Meadowbrook Care Center, a nursing home facility, where she received health care services. She was, therefore, a "patient" within the meaning of the Act. As a nurse, Petitioner was employed to provide health care services to the resident and the other nursing home residents. The DAB has interpreted the broad terminology of section 1128(a)(2) of the Act 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 this statutory test. Anthony W. Underhill, DAB CR231 (1992). Petitioner's situation clearly is within the scope of section 1128(a)(2) of the Act.

Joseph K. Riotto

Administrative Law Judge

1. In this decision, I use the term "Medicaid" to refer to these State health care programs.