SUBJECT:

Neitra Maddox,

Petitioner,

The Inspector General.

As she was required to do by the terms of section 1128(a)(2) of the Act, the I.G. began the process of excluding Petitioner from participation in Medicare, Medicaid, and all other federal health care programs. Section 1128(a)(2) dictates the mandatory exclusion, for a term of not less than five years, of "(a)ny individual or entity that has been 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 I.G. notified Petitioner of her exclusion for the mandatory minimum period of five years by letter on December 31, 2003.

Petitioner, acting pro se, timely sought review of the I.G.'s action by letter dated February 25, 2004. Although unsuccessful in my first effort to convene a telephonic prehearing conference on April 27, 2004, I did so successfully on May 6, 2004, pursuant to 42 C.F.R. � 1005.6. My purpose in doing so was to discuss various aspects of Petitioner's pro se status with her, to explain to her the procedural and substantive questions involved in this proceeding, and to discuss with both parties the issues presented by the case and the procedures best suited for addressing them. The parties agreed that the case likely could be decided on written submissions, and I therefore established a schedule for the submission of documents and briefs. All briefing is now complete.

The I.G. has filed seven proposed exhibits (I.G. Exs. 1-7) and they are admitted. I shall explain below the legal theory by which I admit I.G. Exs. 1 and 2. I.G. Ex. 4 is admitted for the limited purpose of corroborating the charges and disposition set out in I.G. Exs. 3, 5, 6, and 7; I have not considered it for any other reason, and have explicitly declined to consider for any purpose the handwritten notations in the "PRIOR CONVICTIONS/RECORD" section of the document. Petitioner has submitted no exhibits of her own, and has not objected to the authenticity of I.G. Exs. 1-7. Moreover, as will be seen, Petitioner does not directly contest the fact of her conviction, and does not contest that M.A. was in her care at the time of the incident. The material facts in this case are therefore uncontested.

Because the I.G.'s Motion for Summary Affirmance is supported by the undisputed material facts and by well-established law, I grant the Motion, and thereby sustain the I.G.'s determination to exclude Petitioner from participation in Medicare, Medicaid, and all other federal health care programs for a period of five years.

ISSUES

The legal issues before me are those enumerated at 42 C.F.R. � 1001.2007(a)(1). In the specific context of this record they are:

1. Whether Petitioner's 2001 conviction is a basis for excluding her from Medicare, Medicaid, and all other federal health care programs pursuant to section 1128(a)(2) of the Act; and,

2. Whether the five-year term of the exclusion is unreasonable.

If the I.G. has a basis upon which to exclude Petitioner under section 1128(a)(2) of the Act a five-year term of exclusion is the irreducible minimum established by section 1128(c)(3)(B) of the Act, 42 U.S.C. � 1320a-7(c)(3)(B), and is therefore ipso jure reasonable.

CONTROLLING STATUTES AND REGULATIONS

Section 1128(a)(2) of the Act, 42 U.S.C. � 1320a-7(a)(2) requires the mandatory exclusion from participation in Medicare, Medicaid, and all other federal health care programs of any individual or entity that has been 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 terms of section 1128(a)(2) are restated somewhat more broadly in regulatory language at 42 C.F.R. � 1001.101(b).

The Act defines "conviction" as including those circumstances "when a judgment of conviction has been entered against the individual . . . by a . . . State . . . court," section 1128(i)(1) of the Act; "when there has been a finding of guilt against the individual . . . by a . . . State . . . court," section 1128(i)(2) of the Act; or "when a plea of guilty or nolo contendere by the individual . . . has been accepted by a . . . State . . . court," section 1128(i)(3) of the Act. See 42 U.S.C. �� 1320a-7(i)(1)-(3). These definitions are repeated at 42 C.F.R. � 1001.2.

An exclusion based in section 1128(a)(2) is mandatory and must be imposed for a minimum term of five years. Section 1128(c)(3)(B) of the Act, 42 U.S.C. � 1320a-7(c)(3)(B). The regulatory language of 42 C.F.R. � 1001.102(a) affirms the statutory provision. Although the minimum mandatory term of exclusion is subject to enlargement in some limited and carefully-defined circumstances, in this case the I.G. has not sought to enhance the five-year minimum mandatory term, and for that reason I may not inquire into the existence vel non of any of the specific aggravating or mitigating factors set out at 42 C.F.R. � 1001.102(b) and (c).

FINDINGS OF FACT AND CONCLUSIONS OF LAW

I find and conclude as follows:

1. On her plea of nolo contendere on May 13, 2001, in the State Court of DeKalb County, Georgia, Petitioner was convicted of the misdemeanor offense of Simple Battery, in violation of O.C.G.A. � 16-5-23(c). I.G. Exs. 5, 6, 7.

2. Judgment of conviction and sentence were imposed on Petitioner in the State Court of DeKalb County on May 13, 2001. I.G. Ex. 7.

3. The person upon whom Petitioner committed the simple battery of which she was convicted was M.A., who was then a patient and resident of Budd Terrace, Wesley Woods Nursing Home, and who was then under Petitioner's care. I.G. Exs. 1, 2, 3.

4. The plea, conviction, and sentence described above in Findings 1 and 2 constitute a "conviction" within the meanings of sections 1128(a)(2) and 1128(i)(1), (2), and (3) of the Act, and 42 C.F.R. � 1001.2.

5. There is a nexus and a common-sense relationship between the criminal offense of which Petitioner was convicted, as noted above in Findings 1, 2, and 3, and neglect or abuse of a patient, viz. M.A., in connection with the delivery of a health care service. I.G. Exs. 1, 2, 3.

6. By reason of her conviction of a criminal offense relating to neglect or abuse of a patient in connection with the delivery of a health care service, Petitioner was subject to, and the I.G. was required to impose, a term of exclusion from participation in Medicare, Medicaid, and all other federal health care programs. Section 1128(a)(2) of the Act.

7. The I.G. properly and reasonably set the term of Petitioner's exclusion at five years, the minimum mandatory term provided by law. Section 1128(c)(3)(B) of the Act; 42 C.F.R. �� 1001.102(a) and 1001.2007(a)(2).

8. There are no disputed issues of material fact and summary disposition is therefore appropriate in this matter. Carrier Mills Nursing Home, DAB No. 1883 (2003).

DISCUSSION

From on or about October 30, 2000 through on or about April 20, 2001, Petitioner was employed as a Certified Nursing Assistant (C.N.A.) at Budd Terrace, Wesley Woods Nursing Home (Budd Terrace), in Georgia. I.G. Ex. 1. On April 20, 2001, M.A. was a resident patient at Budd Terrace. I.G. Exs. 1, 2. M.A. was in Petitioner's care when the incident occurred. I.G. Exs. 1, 2. I.G. Exs. 3-7 demonstrate conclusively that Petitioner, acting with the advice and assistance of counsel, pleaded nolo contendere to and was convicted of the misdemeanor offense of Simple Battery, in violation of O.C.G.A � 16-5-23(a). On May 13, 2001 a Solicitor-General's Information in the State Court of DeKalb County, Georgia, charged Petitioner, in Count 1, with having committed that misdemeanor by making "contact of an insulting and provoking nature with M.A., a person of 65 years of age of older, by striking M.A. on the arm . . . ." I.G. Ex. 3. The complaint alleged that the offense occurred on April 20, 2001. Petitioner appeared in court that day with counsel and pleaded nolo contendere to the charge set out in Count 1 of the Information; the guilty plea was accepted by the State Court Judge; judgment of conviction was entered, and sentence imposed on that date. I.G. Exs. 4, 6, 7. Pursuant to plea negotiations, an order nolle prosequi disposed of the Information's Count 2. I.G. Exs. 4, 5, 7.

I.G. Exs. 1 and 2 establish that, at the time of the offense, M.A. was a resident patient at Budd Terrace, that Petitioner was employed there as a C.N.A., and that the battery occurred in the course of Petitioner's providing health care services to him. I may properly consider these two exhibits even though they are not part of the court records, since they are both reliable and credible to show the underlying context of Petitioner's conviction, and since the contents and source of the two exhibits correspond in all particulars to the actual court records. Narendra M. Patel, DAB No. 1736 (2000); Tanya Chouke, R.N., DAB CR865 (2002); Donald J. Purcell, II, M.D., DAB CR572 (1999).

The essential elements necessary to support an exclusion based on section 1128(a)(2) of the Act are: (1) the individual to be excluded must have been convicted of a criminal offense; (2) the conviction must have been related to the neglect or abuse of patients; and, (3) the patient neglect or abuse to which an excluded individual's conviction related must have occurred in connection with the delivery of a health care item or service. Ann M. MacDonald, DAB CR519 (1998); Anthony A. Tommasiello, DAB CR282 (1993). A conviction of battery committed against a patient in the course of providing health care services to that patient constitutes a conviction related to abuse that occurred in connection with the delivery of a health care item or service. Anthony W. Underhill, DAB CR231 (1992). The facts I have summarized in the two preceding paragraphs fully establish these three essential elements, and fully demonstrate the nexus between the offense and patient abuse.

Petitioner does not contest that she has been convicted as the I.G. asserts, and does not deny that an altercation of some sort took place between M.A. and herself at Budd Terrace on April 20, 2001, while she was interacting with him as a C.N.A. P. Response, at 1. Further, Petitioner does not contest that her conviction falls within the statutory and regulatory definition, and her conviction's satisfaction of that definition is fully established in the record before me. In addition, Petitioner does not contest that her conviction is related to the delivery of a health care service to a patient in her care, and this relationship is fully established by the evidence before me. She does, however, describe a situation of confusion and anxiety in which her physical contact with M.A. may not have been unprovoked, intentional, intentionally insulting or provoking, or even more than de mimimis. Whatever the situation may have been, however, Petitioner is bound by the facts established by her plea of nolo contendere to the language set out in Count 1 of the Information. See Susan Malady, R.N., DAB No. 1816 (2002); Theodore Sabot, M.D., DAB CR1160 (2004); Dirk G. Wood, M.D., DAB CR1068 (2003). Any form of collateral attack on predicate convictions in exclusion proceedings is precluded by regulation at 42 C.F.R. � 1001.2007(d), and that preclusion has been affirmed repeatedly and firmly by the Departmental Appeals Board (Board). Susan Malady, R.N., supra; Dr. Frank R. Pennington, M.D., DAB No. 1786 (2001); Joann Fletcher Cash, DAB No. 1725 (2000); Paul R. Scollo, D.P.M., DAB No. 1498 (1994); Chander Kachoria, R.Ph., DAB No. 1380 (1993).

Petitioner points out that she was quite young at the time of the incident, frightened, without financial resources, and powerless. She describes herself as otherwise without criminal history, and as having lost the opportunity to work in her chosen career while facing serious responsibilities as a parent. P. Response, at 1-2. She asks that I reduce the term of her exclusion, or set its effective beginning date at the time of the incident itself. These are remedies that I do not have the authority to undertake. I am specifically without authority to consider arguments based on equitable considerations. Salvacion Lee, M.D., DAB CR920 (2002); Tanya A. Chouke, R.N., DAB CR865 (2002); Mark Zweig, M.D., DAB CR563 (1999); Joshua Yaw Boateng, D.P.M., DAB CR365 (1995). Nor may I consider the effect of exclusion on Petitioner's professional career, employment, or income. George E. Smith, M.D., DAB CR885 (2002); Tracey Gales, R.N., DAB CR708 (2000); Farhad Mohebban, M.D., DAB CR686 (2000). In addition, I cannot alter the effective beginning date of her term of exclusion, which is established by 42 C.F.R. 1001.2002 at 20 days after the I.G.'s December 31, 2003 notice letter. Samuel W. Chang, M.D., DAB No. 1198 (1990); Annamali Ashokan, M.D., DAB CR1032 (2003).

It is a recognized and virtually exception-free rule of this forum that once an individual's conviction is found to lie within the terms of sections 1128(a)(1), 1128(a)(2), 1128(a)(3), or 1128(a)(4), the imposition of the five-year minimum exclusion established by section 1128(c)(3)(B) of the Act is mandatory and beyond the authority of the I.G. or an Administrative Law Judge (ALJ) to reduce, modify, or suspend. The Departmental Appeals Board has made this point in the clearest possible terms: "Petitioner's exclusion was mandatory under the Act once the nexus was established between her offense and the delivery of an item or service under the Medicare program. The ALJ had no discretion to impose a lesser remedy." Salvacion Lee, M.D., DAB No. 1850, at 4. This link between conviction in any of the circumstances identified in the four subsections of section 1128(a) and a mandatory five year exclusion is absolute: "We therefore affirm the ALJ conclusion . . . that once an individual has been found to have been convicted of a program-related criminal offense under section 1128(a)(1) of the Act, exclusion is mandatory." Lorna Fay Gardner, DAB No. 1733, at 6 (2000); Douglas Schram, R.Ph., DAB No. 1372 (1992); Napoleon S. Maminta, M.D., DAB No. 1135 (1990); ); Juanita Brown, R.N., DAB CR579 (1999); Ann M. MacDonald, supra; Aida Cantu, DAB CR462 (1997); Anthony A. Tommasiello, supra.

There are two approaches in this forum to the unreasonableness of the duration of the five-year term, but both reach the same conclusion. The more frequently-applied approach analyzes 42 C.F.R. � 1001.2007(a)(1) and (a)(2) and concludes that the issue of unreasonableness simply cannot arise when nothing more than the minimum mandatory period is imposed. This "no-issue" approach is exemplified by Rose Mary Maye, DAB CR1028 (2003); Norman Imperial, DAB CR833 (2001); Kathleen E. Talbot, M.D., DAB CR772 (2001); Dr. David Vainio, DAB CR762 (2001); and Rosemary Oteri, DAB CR755 (2001). The second approach allows the question of unreasonableness to be asked but answers it empirically: if the I.G. imposes the minimum exclusionary period, as a matter of law it cannot be unreasonable. It may be seen at work in Mary Jo Izzo, DAB CR1136 (2004) and John L. Grant, M.D., DAB CR737 (2001). Both analytical paths arrive at the same result: there is simply no challenge available in this forum to the reasonableness of Petitioner's five-year exclusion.

It may be helpful to make one other point before closing this discussion. Petitioner has conducted her appeal courteously, temperately, and candidly, but she has also conducted it pro se. The Board has cautioned that "some extra measure of consideration" is due pro se litigants in developing their records and, at least to some extent, their positions. Louis Mathews, DAB No. 1574 (1996); see also Brij Mattel, M.D., DAB No. 1894 (2003); Timothy L. Stern, M.D., DAB No. 1314 (1992); Edward J. Petrus, Jr., M.D., DAB No. 1264 (1991). I have reviewed the record in this case with that admonition in mind, but have found nothing in it that would alter the findings, conclusions, and result I announce here.

CONCLUSION

For the reasons set out above, the I.G.'s Motion for Summary Affirmance should be, and it is, granted. The I.G.'s exclusion of Petitioner from participation in Medicare, Medicaid, and all federal health care programs for a term of five years, pursuant to the terms of section 1128(a)(2) of the Act, 42 U.S.C. � 1320a-7(a)(2), is thereby sustained.

Richard J. Smith

Administrative Law Judge