CASE | DECISION | JUDGE

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


SUBJECT:

Patricia Konyeaso,

Petitioner,

DATE: October 18, 2001

- v -

 

The Inspector General

 

Docket No.C-01-773
Decision No. CR827
DECISION
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DECISION

This case is before me pursuant to a request for hearing filed by Patricia Konyeaso (Petitioner), which was received by the Civil Remedies Division of the Departmental Appeals Board (DAB) on June 18, 2001.

By letter dated May 31, 2001, 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. informed Petitioner that she was being excluded pursuant to section 1128(a)(2) of the Act, due to her conviction in the Circuit Court for Baltimore County, Maryland, of a criminal offense related to the neglect or abuse of patients in connection with the delivery of a health care item or service.

I held a telephone prehearing conference in this case on July 20, 2001. 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. The parties have made written submissions in support of their contentions. Additionally, the I.G. submitted 12 proposed exhibits. These have been identified as I.G. Exhibits (Exs.) 1-12. Petitioner offered no documentary evidence. In the absence of any objection, I am admitting I.G. Exs. 1-12.

It is my decision to sustain the determination of the I.G. to exclude Petitioner, Patricia Konyeaso, from participating in the Medicare, Medicaid, and all federal health care programs for a period of five years. I base my decision on the documentary evidence, the applicable law and regulations, and the arguments of the parties. It is my finding that Petitioner was convicted of a criminal offense relating to the 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 mandated by law and no inquiry is permitted regarding the length of such exclusion.

Issue

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

Applicable Law and Regulations

Section 1128(a)(2) of the Act authorizes the Secretary of the Department of Health and Human Services (Secretary) to exclude from participation in any federal health care program [as defined in section 1128B(f)], 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. The exclusion under section 1128(a)(2) of the Act must be for a minimum mandatory period of five years. Act, 1128(c)(3)(B); 42 C.F.R. § 1001.102(a).

Pursuant to 42 C.F.R. § 1001.2007, a person excluded under 1128(a)(2) may file a request for hearing before an Administrative Law Judge (ALJ).

Section 1128(b) of the Act authorizes the Secretary to exclude individuals from receiving payment for services that would otherwise be reimbursable under Medicare, Medicaid, or other federal health care programs.

Findings of Fact and Conclusions of Law

1. Petitioner was employed by the Flying Colors of Success residential group home as a care giver. I.G. Ex. 3.

2. Flying Colors of Success is a non-profit organization that provides community- based, residential support and assistance to people with developmental disabilities. I.G. Ex. 4.

3. Flying Colors of Success is licensed by the Maryland Office of Health Care Quality and is a provider under the Maryland Medical Assistance Program. I.G. Ex. 12.

4. On or about August 20, 1999, Petitioner was charged with the care of Mr. Maurice Benjamin, a resident of Flying Colors of Success who was severely mentally retarded and also suffered from cerebral palsy. I.G. Ex. 3 at 2.

5. On March 8, 2000, the Attorney General of Maryland filed an application for Statement of Charges in the District Court for Baltimore County against Petitioner alleging that on or about August 20, 1999, Petitioner was observed grabbing Mr. Maurice Benjamin, while he was in her care at the group home, by the collar just under his chin and pushing him up against the wall. I.G. Ex. 3.

6. Petitioner was charged with: one count of Vulnerable Adult Abuse in violation of Article 27, § 35D of the Code of Maryland; one count of Assault in the Second Degree in violation of Article 27, § 12A of the Code of Maryland; and one count of Interfering With the Rights of an Individual in violation of Health-General Article 7-1002(b)(3). I.G. Ex.5.

7. Petitioner was found guilty on April 20, 2000 of one count of Vulnerable Adult Abuse and one count of Assault in the Second Degree. I.G. Ex. 6.

8. Petitioner was sentenced to a suspended sentence of three years of incarceration; two years of supervised probation; 116 hours of community service; and a $750 fine. I.G. Ex. 6.

9. Petitioner appealed her conviction and was granted a de novo trial. The Circuit Court heard her case on an agreed statement of facts and on September 29, 2000, entered a sentence of 18 months of probation before judgment pursuant to Article 27, § 641 of the annotated Code of Maryland. Petitioner was also ordered to pay a $750.00 fine and complete 116 hours of community service. I.G. Exs. 9, 10.

10. The Circuit Court's adjudication of probation before judgment constitutes a conviction within the meaning of section 1128(i)(4) of the Act.

11. Petitioner has been convicted under a 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.

12.
The Secretary has delegated to the I.G. the authority to determine and impose exclusions from federal health care programs pursuant to section 1128(a) of the Act.

13.
Pursuant to section 1128(a)(2) of the Act, the I.G. is required to exclude Petitioner from participating in Medicare, Medicaid, and all other federal health care programs.

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

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

Discussion

Petitioner was a care-giver employed by the Flying Colors of Success residential group home on August 20, 1999. On that day she was observed assaulting a severely retarded resident who suffered from cerebral palsy. For this, she was charged on March 8, 2000, by criminal summons, with three misdemeanor counts. On April 20, 2000, she was convicted of one count misdemeanor abuse of a vulnerable adult and one misdemeanor count of assault in the second degree. See I.G. Exs. 6, 7. Petitioner had a de novo trial in the Circuit Court for Baltimore County, where she was granted probation before judgment for the offense of second degree assault. She was also fined $750.00 and ordered to complete 116 hours of community service. At the time of the offense, Petitioner was charged with the care of the victim, as part of her duties as a paid care-giver for disabled vulnerable persons. I.G. Ex. 3.

Petitioner 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 an item of health care or service. These elements are present in this case. Petitioner's conduct-assaulting a severely retarded resident-plainly constitutes abuse of a patient. Because the retarded individual whom Petitioner assaulted was a resident of a Medicaid group home in which Petitioner was employed as a care-giver, I conclude that the abuse occurred in connection with the delivery of a health care item or service.

Petitioner asserts, however, that her sentence of probation before judgment is neither a "conviction" as defined in section 1128(i) of the Act nor under Maryland law. She argues that her probation before judgment does not meet the federal definition of conviction. In this regard, Petitioner contends that she was not found guilty of any crime in the Circuit Court for the Baltimore County. She reasons that judgment has been withheld, and that "by receiving probation before judgment, she has been sentenced to a three years suspended sentence, two years supervised probation, payment of a fine and court costs, and preclusion from taking employment where she would be working with children or vulnerable adults." P. Br. at 3.

Petitioner further argues that Maryland Code Article 27, Crimes and Punishments § 641(2001) and Myers v. Maryland, (303 Md. 639, 496 A.2d 312 (1985)) stand for the proposition that probation before judgment is not a conviction.

I cannot agree with Petitioner's reasoning. At the outset, it must be said that the Maryland authorities cited by Petitioner do not and cannot define "conviction" for purposes of exclusions under section 1128(a)(2) of the Act. The United States Congress has already done that in very specific, yet broad terms, in section 1128(i). Therefore, in order to determine whether an individual has been "convicted" for purposes of enforcement of the exclusion statute, I am not permitted to look for legislative authority beyond the confines of section 1128(i) of the Act. Additionally, Petitioner points to no other authority in support of the argument that Maryland's definition of what constitutes a conviction under certain circumstances is binding as a matter of federal law.

It is my finding that the language of section 1128(i)(4) is unequivocal in its application to the situation at hand. That subsection clearly states that a conviction for exclusion purposes includes:

when the individual or entity has entered into participation in a first offender, deferred adjudication, or other arrangement or program where judgment has been withheld. (Emphasis added).

The language of Maryland Code § 641, alluded to by Petitioner in her brief (P. Br. at 4), fails to support her contention. That section provides that:

whenever a person accused of a crime pleads guilty or nolo contendere or is found guilty of an offense, a court exercising criminal jurisdiction, if satisfied that the best interests of the person and the welfare of the people of the State would be served thereby, and with the written consent of the person after determination of guilt or acceptance of a nolo contendere plea, may stay the entering of judgment, defer further proceedings, and place the person on probation subject to reasonable terms and conditions as appropriate. (Emphasis supplied).

In this case, although judgment was withheld (stayed), Petitioner stands "convicted" in light of the clear language of section 1128(i)(4) of the Act. The statute places greater stock in the fact that the individual has been determined to be guilty whether by admission, nolo plea, or verdict, than the mechanism employed by the court to impose punishment. If individuals who are found guilty of a criminal offense related to neglect or abuse of patients in connection with the delivery of a health care item or service could circumvent the federal exclusion provisions by availing themselves of creative sentencing procedures, the exclusion statute would be rendered meaningless.

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

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


  • the length of exclusion is unreasonable.

However, when the I.G. imposes an exclusion under subpart B of Part 1001 of 42 C.F.R. for the mandatory five-year period, the issue of the length of such exclusion is not considered. 42 C.F.R. § 1001.2007(a)(2). Congress has established a mandatory exclusion period of five years, minimum. Aggravating factors for lengthening the period may be considered, but the five-year term will not be shortened.

Thus, the only issue in this case is whether a basis exists for the sanction. It is evident that Petitioner's conduct is the type that Congress sought to prevent for the benefit of a protected class of individuals. It follows then, that a person who abuses patients is not fit to participate in federal health care programs. This is consistent with the Secretary's duty to assure that the requirements that govern the provision of health care, and the enforcement of those requirements, are adequate to protect the health, safety, welfare, and rights of beneficiaries of federal health care programs.

In view of the clear statutory and regulatory language, Petitioner's defense grounded on the State of Maryland's definition of conviction is without merit. The unambiguous language of the Congressional legislation allows no room for a different interpretation.

CONCLUSION

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

JUDGE
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Jose A. Anglada

Administrative Law Judge

 

CASE | DECISION | JUDGE