CASE | DECISION | JUDGE | FOOTNOTES

Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD
Civil Remedies Division
IN THE CASE OF  


SUBJECT:

Karen S. Tanner,

Petitioner,

DATE: July 11, 2001
                                          
             - v -

 

The Inspector General

 

Docket No.C-01-393
Decision No. CR795
DECISION
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DECISION

Karen S. Tanner (Petitioner) appeals the decision of the Inspector General (I.G.), made pursuant to section 1128(a)(2) of the Social Security Act (Act), to exclude her from participation in Medicare, Medicaid, and all federal health care programs for a period of five years. For the reasons discussed below, I uphold the I. G.'s decision.

APPLICABLE LAW

Section 1128(a)(2) of the Act mandates exclusion from all federal health care programs(1) of any individual or entity 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(i)(3) of the Act defines the term "convicted" of a criminal offense to include those circumstances in which a guilty plea by an individual has been accepted by a federal, State, or local court. Section 1128(c)(3)(B) of the Act sets the minimum exclusion period at five years. See also 42 C.F.R. § 1001.102(a). The Secretary has delegated to the I.G. the responsibility to exclude any individual convicted of patient neglect or abuse. 42 C.F.R. § 1001.101(a). When the I.G. imposes the minimum mandatory exclusion under the Act, the reasonableness of the length of the exclusion is not an issue. 42 C.F.R. § 1001.2007(a)(2).

FINDINGS OF FACT AND CONCLUSIONS OF LAW

1. Petitioner's criminal conviction constitutes a conviction within the scope of section 1128(i)(3) of the Act.

2. The I.G. had a basis upon which to exclude Petitioner from participation in Medicare, Medicaid and all other federal health care programs for a period of five years.

DISCUSSION

By letter dated December 29, 2000, the I.G. notified Petitioner of her decision to exclude her from program participation. Petitioner filed a timely request for review, and the matter has been assigned to me for resolution. The parties have waived their rights to an in-person hearing, and agreed that the matter could be decided on the written record.(2)

The critical facts of this case are not in dispute. Petitioner worked as a nurses' aide at Whetstone Gardens and Care Center in Franklin County, Ohio. In July 1999, she was indicted on one felony count of patient abuse. I.G. Ex. 3, 6. Petitioner subsequently pled guilty to the lesser included offense of assault, in violation of Ohio Revised Code section 2903.13, a first degree misdemeanor. I.G. Ex. 4, 5. Petitioner was sentenced to six months in jail, with that sentence suspended for time served, and to pay the costs of the prosecution. I.G. Ex. 4.

Petitioner has not disputed that she was convicted of a crime relating to patient neglect or abuse in connection with the delivery of a health care item or service. Instead, Petitioner raises questions about the fairness of her conviction, and notes that the County Court of Common Pleas subsequently expunged her conviction. Neither of Petitioner's claims justify lessening the length of her exclusion.

First, with respect to the fairness of her conviction, Petitioner may not use this forum to attack collaterally her criminal conviction. The regulations are explicit:

When the exclusion is based on the existence of a conviction . . . the basis for the underlying determination is not reviewable and the individual or entity may not collaterally attack the underlying determination, either on substantive or procedural grounds, in this appeal.

42 C.F.R. § 1001.2007(d). Joann Fletcher Cash, DAB No. 1725 (2000); Chander Kachoria, R. Ph., DAB No. 1380 (1993) ("There is no reason to 'unnecessarily encumber the exclusion process' with efforts to reexamine the fairness of state convictions").

Second, with respect to the expungement of Petitioner's conviction, section 1128(i) of the Act specifically precludes my consideration as to whether a conviction has been expunged:

[A]n individual or entity is considered 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 the judgment of conviction or other record relating to criminal conduct has been expunged.

(emphasis added).

CONCLUSION

For the reasons discussed above, I conclude that the I.G. properly excluded Petitioner from participation in Medicare, Medicaid, and all other federal health care programs, and the five-year exclusion is sustained.

JUDGE
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Carolyn Cozad Hughes

Administrative Law Judge

 

FOOTNOTES
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1. "Federal health care program" is defined in section 1128B(f) as any plan or program that provides health benefits, whether directly, through insurance, or otherwise, which is funded directly, in whole or in part, by the United States Government , or any state health care program. "State health care program" is defined in section 1128(h) of the Act and includes the Medicaid program (Title XIX).

2. Attached to the I.G.'s brief are I.G. Exhibits (I.G. Exs.) 1 - 6. The Petitioner submitted only a short letter with no exhibits. There being no objection, I.G. Exs. 1 - 6 are admitted into evidence.

CASE | DECISION | JUDGE | FOOTNOTES