This case is before me pursuant to a request for hearing filed by John Allen Fuller (Petitioner), dated March 26, 2004. Social Security Act, section 1128(f) (Act); 42 C.F.R. � 1001.2007

PROCEDURAL BACKGROUND

By letter dated January 30, 2004, the Inspector General (I.G.) notified Petitioner that he was being excluded from participation in the Medicare, Medicaid, and all federal health care programs as defined in section 1128B(f) of the Act for a period of five years, the minimum statutory period. That exclusion, the I.G. said, was taken under section 1128(a)(2) of the Act, due to his State conviction of a criminal offense as defined in section 1128(i), related to abuse or neglect of patients in connection with the delivery of a health care item or service.

I held a telephone prehearing conference on May 18, 2004. The parties agreed that this matter could be decided based on written arguments and documentary evidence, and that an evidentiary hearing was unnecessary. Each side has made written submission in support of their contentions. Additionally, the I.G. submitted four proposed exhibits.

These have been identified as I.G. Exhibits (Ex.) 1 - 4. Petitioner offered one proposed exhibit, which I have identified as Petitioner's Exhibit (P. Ex.) 1. In the absence of objection, I am admitting I.G. Exs. 1 - 4 and P. Ex. 1.

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 base my decision on the documentary evidence, the applicable law and regulations, and the arguments of the parties. It is my finding that the 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.

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 Health and Human Services (Secretary) to exclude from participation in any federal health care program [as defined in 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. 1128 (c)(3)(B) of the Act; 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). When an exclusion is based on the existence of a conviction, the basis for the underlying conviction is not subject to review. 42 C.F.R. � 1001.2007(d). In addition, Petitioner may not collaterally attack the underlying determination, either on substantive or procedural grounds, in his appeal. Id.

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.

DISCUSSION

Petitioner was a health care worker at the Metron of Cedar Springs Nursing Home (Metron), in the State of Michigan. On September 20, 2002, the State of Michigan issued a misdemeanor criminal complaint charging Petitioner with physically mistreating and harmfully neglecting a patient in violation of Mich. Comp. Laws (MCL) � 333.21771(1). I.G. Ex. 3. The complaint charged that while employed at Metron, Petitioner transported the victim, a 92 year old woman, in a wheelchair at an unsafe speed, without foot pedals for the victim. The complaint also stated that the victim's feet, upon hitting the floor, caused her to fly forward landing on her left side and forehead. As a result of the fall, the victim suffered serious injuries, including a large laceration under the eye, large skin tear to the left elbow and knee, and a non-displaced left hip fracture. I.G. Ex. 3.

Petitioner entered a plea of not guilty and received a bench trial in the 63-1st Judicial District Court of Michigan. On July 7, 2003, after a full trial, Petitioner was found guilty as charged, of one count of patient abuse, MCL � 333.21771(1), and sentenced to one year probation and ordered to pay $1,160 in court costs and fines. I.G. Ex. 4.

MCL � 333.21771(1) provides that:

The essential elements that provide a basis for exclusion from Federal health care programs are the existence of abuse or neglect of a patient, and that such neglect or abuse occur in connection with the delivery of a health care item or service. These conditions are present in this case.

Petitioner argues, however, that his conviction under MCL � 333.21771(1) cannot serve a basis for mandatory exclusion pursuant to section 1128(a)(2) of the Act. Specifically, Petitioner contends that the Michigan statute must be construed to mean that the criminal offense of which he was convicted has neglect as an essential element of the crime, and that neglect has to be accompanied by some level of mens rea. The Michigan District Court, in its ruling, found that "the defendant does not need mens rea or scienter as the criminal law defines those terms." P. Ex. 1, at 4. Moreover, Petitioner would have me disturb the District Court's ruling by reinterpreting the Michigan statue.

However, 42 C.F.R. � 1001.2007(d), provides that:

In the case of Peter J. Edmonson, DAB 1330 (1992), at 4, in response to a plea of innocence and incompetent counsel, the Departmental Appeals Board (DAB) held:

The DAB went on to say that:

Edmonson, DAB 1330 (1992), at 5.

In its brief, Petitioner recognizes that, at least, one federal U.S. District Court has held that in order for a conviction to lead to an exclusion from the Medicare program, there is no requirement that actual neglect or abuse of patients occur. Petitioner refers to the case of Westin v. Shalala, 845 F. Supp. 1446 (D. Kan. 1994). P. Br. at 5.

In Westin, the Petitioner argued that his exclusion should be dismissed because: (1) the I.G. had never defined the patient abuse or neglect charge against her in enough detail for her to defend against it, even though Petitioner specifically requested such a definition; (2) the I.G. did not prove that she committed patient abuse or neglect; and (3) the I.G. did not prove that her conviction was related to patient abuse or neglect. The DAB rejected these arguments. The DAB determined that the ALJ was correct when he determined that the I.G. did not have to prove that Petitioner committed patient abuse or neglect. The I.G. met his burden of proof by establishing that there was a conviction as defined by the Act and that the offense of which Petitioner was convicted was related to patient neglect in connection with the delivery of a health care service.

In spite of acknowledging the existence of these precedents, Petitioner urges me to reach a different result, "given the important liberty interest at stake." P. Br. at 5. Petitioner further states that "undoubtedly, the Due Process Clause is invoked where the State, imposes upon a citizen a stigma or other disability that forecloses his freedom to take advantage of other employment opportunities." Id. It is unclear whether Petitioner is making a case for equitable relief or seeks a favorable ruling on due process grounds under the Constitution. In either case, I am unable to provide any relief inasmuch as I am bound by the clear holdings of the appellate forums exercising supervisory authority, nor am I invested with power to entertain an argument of a constitutional nature.

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 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 of federal health care programs.

In view of the clear statutory and regulatory language as well as case precedents, Petitioner's defense grounded on the argument that the State Court did not establish the existence of neglect in its conviction of Petitioner, is without merit. Furthermore, I am prohibited from providing equitable relief or relief based on Constitutional grounds.

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 he 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. Additionally, because the five-year exclusion imposed by the I.G. is the minimum period mandated by law no inquiry is permitted regarding the length of such exclusion. The five-year exclusion is therefore sustained.