SUBJECT:

Jaymi Annette Lindsey,

Petitioner,

The Inspector General.

DECISION

I sustain the determination of the Inspector General (I.G.) to exclude Petitioner, Jaymi Annette Lindsey, from participating in Medicare and other federally funded health care programs for a period of five years.

I. Background

On May 31, 2006 the I.G. notified Petitioner that she was being excluded from participating in Medicare and other federally funded health care programs for a period of five years. The I.G. advised Petitioner that the basis for her exclusion was that she had been convicted of a criminal offense covered by the mandatory exclusion provisions of section 1128(a)(2) of the Social Security Act (Act).

Petitioner requested a hearing and the case was assigned to me for a hearing and a decision. Neither the I.G. nor Petitioner requested that I convene an in-person hearing for the purpose of taking testimony. The I.G. filed a written submission consisting of a brief and four proposed exhibits (I.G. Ex. 1 - I.G. Ex. 4). Petitioner filed a brief and two proposed exhibits (P. Ex. 1 - P. Ex. 2). The I.G. did not object to my receiving into evidence Petitioner's proposed exhibits. Petitioner objected to my receiving into evidence I.G. Ex. 2 on grounds of "hearsay and authentication."

I receive into evidence I.G. Ex. 1 - I.G. Ex. 4 and P. Ex. 1 - P. Ex. 2. I overrule Petitioner's objections to I.G. Ex. 2. The exhibit is a copy of an official court record, an affidavit that was filed in connection with the criminal charges made against Petitioner, and is authentic. Furthermore, although there is no rule against receiving hearsay in an administrative hearing such as this, the exhibit is in fact evidence that falls within one of the traditional exemptions to the hearsay rule. The I.G. is not offering the exhibit for the truth of its contents but in order to show the prosecutor's reason for filing criminal charges against Petitioner.

II. Issue, findings of fact and conclusions of law

A. Issue

The issue in this case is whether Petitioner was convicted of a crime that mandates her exclusion for a five-year period pursuant to the requirements of section 1128(a)(2) of the Act.

B. Findings of fact and conclusions of law

I make findings of fact and conclusions of law (Findings) to support my decision in this case. I set forth each Finding below as a separate heading. I discuss each Finding in detail.

1. Petitioner was convicted of a crime involving abuse of a patient in connection with the delivery of a health care item or service and, therefore, her exclusion is mandated by section 1128(a)(2) of the Act.

Section 1128(a)(2) of the Act mandates the exclusion of any individual who:

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. bases his case for exclusion of Petitioner on the following evidence. Petitioner was employed as a certified nurse aide at a nursing home in Oklahoma. On August 16, 2005, Petitioner was charged in a State criminal information with the crime of aggravated assault and battery, a misdemeanor under Oklahoma law. I.G. Ex. 1. The information was based on a probable cause affidavit that was filed in Oklahoma State court and which contained the sworn testimony of an investigator for the Oklahoma Medicaid Fraud Control Unit. I.G. Ex. 2. In the affidavit, the investigator relates that witnesses had informed him that, on the evening of February 5, 2005, Petitioner, while performing her duties as a nurse aide, cursed at a resident, a demented individual, and struck the resident by flicking the resident on the forehead with her finger and thumb. Id. at 1. On November 10, 2005, Petitioner pled guilty to the charge. I.G. Ex. 3; I.G. Ex. 4. In her plea Petitioner explicitly acknowledged that:

I believe that the witnesses and evidence against me can prove . . . [the charge of aggravated assault and battery to which Petitioner pled] and establish facts to support my plea.

I.G. Ex. 3, at 1. Petitioner received a sentence which included a deferral of a final adjudication and fines and court costs totaling $628. I.G. Ex. 4, at 1.

The evidence establishes a basis for finding that Petitioner was convicted of a crime that falls within the reach of section 1128(a)(2) and which mandates Petitioner's exclusion under that section. Petitioner was charged in a State court with deliberately striking a patient while in the course of performing her duties as a certified nurse aide. That allegation, on its face, is abuse of a patient in connection with the delivery of a health care item or service. Petitioner was convicted of this charge. She pled guilty to it and, in doing so, admitted that there existed evidence that was sufficient to establish her crime.

Petitioner's guilty plea is a "conviction" within the meaning of the Act although it allowed for deferral of a finding of guilt. The Act defines a conviction to include the circumstance where a defendant enters into participation in a first offender, deferred adjudication, or other arrangement or program where judgment of conviction is withheld. Act, section 1128(i)(4).

Petitioner does not deny that she was convicted of the offense of which she was charged. She argues, however, that the evidence offered by the I.G. does not prove that she actually "abused" a patient. Furthermore, she contends that the I.G. failed to prove that any abuse, if Petitioner perpetrated it, occurred in connection with the delivery of a health care item or service.

I find these arguments to be without merit. First, and as I have discussed, the allegations made against Petitioner, and which Petitioner admitted to be sufficient to prove the criminal charge made against her, on their face describe abuse committed in connection with the delivery of a health care item or service. Petitioner was charged with deliberately striking a patient while she was performing her duties as a certified nurse aide. There can be no question that such conduct, if proven or admitted, is "abuse" by any definition of the term. It is the willful and deliberate infliction of harm by an individual upon another. ⁽¹⁾ The abuse that Petitioner was charged with committing occurred while Petitioner was providing patient care. The nexus between the abuse and the delivery of a health care item or service is thus patent.

Petitioner seems to be arguing that the I.G. has a burden to prove that she actually engaged in the conduct of which she was charged and convicted. That is a misunderstanding of the I.G.'s obligations. The exclusion requirement under section 1128(a)(2) derives from Petitioner's conviction. The Act does not suggest that the exclusion requirement of section 1128(a)(2) exists only where the I.G. can prove that the conduct underlying a conviction actually occurred. All that is required to trigger the mandatory exclusion requirements of the section is that a conviction exists based on allegations of a crime falling within the purview of that section. ⁽²⁾

2. The reasonableness of the length of Petitioner's exclusion is not at issue in this case because the I.G. imposed the minimum exclusion period that is mandated by the Act.

The I.G. excluded Petitioner for a period of five years. That is the minimum period that is mandated for exclusions imposed pursuant to section 1128(a)(2). Act, section 1128(c)(3)(B). Consequently, the reasonableness of the length of Petitioner's exclusion is not at issue here.

Steven T. Kessel

Administrative Law Judge

1. Although the Act does not define "abuse" Medicare regulations governing nursing facilities do. "Abuse" is defined to be:

the willful infliction of injury, unreasonable confinement, intimidation, or punishment with resulting physical harm, pain or mental anguish.

42 C.F.R. � 488.301. The charges against Petitioner clearly embodied elements of willful infliction of intimidation and punishment with resulting pain.

2. However, Petitioner admitted that the evidence against her was sufficient to prove her guilt.