Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD
Civil Remedies Division
In the Case of:
Olian Small,
Petitioner,
- v. -
The Inspector General.
DATE: June 12, 1991
Docket No. C-272
DECISION
In this case, governed by section 1128 of the Social Security Act (Act), Petitioner
requested a hearing
before an administrative law judge (ALJ) to contest a determination by the Inspector
General (I.G.) to
exclude Petitioner from participation in the Medicare program and certain federally-assisted
State health
care programs.
In a letter dated August 6, 1990, the I.G. advised Petitioner that he was being
excluded from participation
in the Medicare and Medicaid programs because he had been "convicted,"
within the meaning of section
1128(i) of the Social Security Act (Act), 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. further
informed Petitioner that
exclusions of individuals convicted of such offenses are mandated by section
1128(a)(2) of the Act for a
minimum period of five years. The I.G. stated that, based on the existence of
several aggravating
circumstances, Petitioner would be excluded for a period of ten years.
Petitioner timely requested a hearing and the case was assigned to ALJ Charles
E. Stratton for hearing and
decision. Judge Stratton conducted a prehearing conference by telephone. At
the prehearing conference,
the parties agreed that the case could likely be disposed of on motions for
summary disposition. The
parties filed motions for summary disposition in accordance with Judge Stratton's
Prehearing Order. The
case was subsequently reassigned to me for decision.
I have considered the arguments contained in the parties' motions for summary
disposition, the undisputed
material facts, and applicable law and regulations. I conclude that the exclusion
imposed and directed by
the I.G. is mandated by section 1128(a)(2) of the Act for a period of at least
five years. I further conclude
that the I.G. has demonstrated aggravating factors which warrant lengthening
the mandatory minimum
period of exclusion. The I.G. has not proved that an exclusion of ten years
is reasonable, however. My
decision is that an exclusion of seven years is reasonable in this case.
ISSUES
1. Whether 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, within the meaning
of section 1128(a)(2) of
the Act.
2. Whether a ten year exclusion is reasonable under the circumstances of this case.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
1. On or about October 4, 1989, the grand jury for Sagadahoc County, Maine,
indicted Petitioner in a nine-
count indictment. The indictment charged Petitioner with one count of attempted
murder, two counts of
aggravated assault, and six counts of endangering the welfare of an incompetent
person. I.G. Ex. 4 at 1-5.
2. On or about October 12, 1989, Petitioner was committed to the county jail
because he was unable to
furnish bail. Petitioner remained in jail until his trial. P. Mem. at 5 (unnumbered)
and Attachment.
3. Prior to Petitioner's trial, the attorney general dismissed counts VI and
IX of the indictment. Counts VI
and IX were two of the six counts that charged Petitioner with endangering the
welfare of an incompetent
person. I.G. Ex. 4 at 6.
4. At the time of the conduct charged in the indictment, Petitioner was employed
as a nurse's
aide/medication technician at Amenity Manor, a nursing home located in Topsham,
Maine. I.G. Mem. at
5; P. Mem. at 2.
5. In the course of his employment, one of Petitioner's duties was to administer
medications to the patients
at Amenity Manor and to place his initials in the patients' medical records,
indicating that the medications
had been given. I.G. Ex. 6 at 53-54.
6. Count V of the indictment charged that Petitioner knowingly endangered the
health, safety, or mental
welfare of Alice Lewis, a patient at Amenity Manor, who, by reason of advanced
age, physical or mental
disease or disorder, was unable to care for herself, by failing to administer
the medication nitroglycerin
ointment to her, and by making false entries in her medical records, indicating
that he had administered the
medication. I.G. Ex. 4 at 3.
7. Count VII of the indictment (originally count VIII) charged that Petitioner
knowingly endangered the
health, safety, or mental welfare of Helen Ada Potter, a patient at Amenity
Manor, who, by reason of
advanced age, physical or mental disease or disorder, was unable to care for
herself, by failing to
administer the medications carafate and tagamet to her and by making false entries
in her medical records,
indicating that he had administered the medications. I.G. Ex. 4 at 4.
8. At Petitioner's trial, the State did not adduce evidence that Petitioner's
failure to give the medications, as
charged in the indictment, caused actual harm to either patient. P. Mem. at
3-4.
9. John H. Kanwit, M.D., a physician called by the State as a witness at Petitioner's
trial, testified that
Petitioner's failure to administer nitroglycerin ointment could expose a patient
to the risk of heart damage,
if the underlying heart condition continued untreated. I.G. Ex. 7 at 19.
10. Dr. Kanwit, who was Mrs. Potter's treating physician, testified that the
failure to administer carafate
and tagamet could have exposed Mrs. Potter to the potential risk of suffering
a "rebleed," that is, a
reoccurrence of the stomach hemorrhage for which she was being treated. Dr.
Kanwit testified that such a
rebleed would have been "disastrous" to the patient. I.G. Ex. 7 at
10-11, 15.
11. Dr. Kanwit testified that if Mrs. Potter's medical records indicated that
she had received carafate and
tagamet, when in fact she had not, the false entry might have led him to make
an incorrect treatment
decision. Specifically, Dr. Kanwit stated that if the patient suffered another
hemorrhage, he would assume
that nothing more could be done for her through medication and he would have
to intervene surgically. In
Mrs. Potter's case, Dr. Kanwit opined that she probably could not have tolerated
surgery. I.G. Ex. 7 at 11-
12, 17-18.
12. On May 25, 1990, a jury found Petitioner guilty of Counts V and VII of
the indictment. Petitioner was
acquitted on the remaining charges. I.G. Ex. 2.
13. The trial judge entered a judgment of conviction against Petitioner. I.G. Ex. 2.
14. The crime of endangering the welfare of an incompetent person is a Class
D misdemeanor, which
carries a maximum sentence of 364 days' imprisonment and a $1,000 fine, under
Maine law. P. Mem. at 4.
15. The trial judge sentenced Petitioner to a jail term of 205 days. That period
corresponded with the
amount of time Petitioner had been jailed awaiting trial. The judge credited
Petitioner with time served. P.
Mem. at 4-5; I.G. Ex. 2.
16. Petitioner has a record of prior criminal convictions dating back to 1972. I.G. Ex. 8.
17. Petitioner's State Bureau of Identification record indicates that he was
convicted on six occasions for
negotiating a worthless instrument; on two occasions for theft by unauthorized
taking or transfer; and on
one occasion each for petty larceny, cheating by false pretenses, and theft
by deception. I.G. Ex. 8.
18. Petitioner was "convicted" of a criminal offense within the meaning
of section 1128(i) of the Act.
Findings 12, 13.
19. Petitioner's conviction was related to the neglect or abuse of patients
in connection with the delivery of
a health care item or service, within the meaning of section 1128(a)(2) of the
Act. Findings 4-12.
20. Pursuant to section 1128(a)(2) of the Act, the Secretary is required to
exclude Petitioner from
participation in Medicare and to direct his exclusion from participation in
Medicaid.
21. The minimum mandatory period of exclusion for exclusions pursuant to section
1128(a) of the Act is
five years. Social Security Act, section 1128(c)(3)(B).
22. The Secretary delegated to the I.G. the duty to impose and direct exclusions
pursuant to section 1128
of the Social Security Act. 48 Fed. Reg. 21662 (May 13, 1983).
23. The I.G. imposed and directed an exclusion against Petitioner for a period of ten years. I.G. Exhibit 1.
24. It is an aggravating factor that the nature of Petitioner's offenses placed
Medicare beneficiaries at risk
of suffering grave health consequences.
25. It is neither an aggravating nor a mitigating factor that Petitioner was sentenced to "time served."
26. It is an aggravating factor that Petitioner has a lengthy record of convictions
for crimes involving
dishonesty.
27. An exclusion of seven years is reasonable in this case. Findings 1-26.
ANALYSIS
1. Petitioner was convicted of a criminal offense related to neglect or abuse
of patients in connection with
the delivery of a health care item or service, within the meaning of section
1128(a)(2) of the Social
Security Act.
There are no disputed issues of material fact in this case. Petitioner was
employed as a nurse's
aide/medication technician at Amenity Manor, a nursing home located in Topsham,
Maine. In that
capacity, Petitioner had the duty to distribute medications to patients and
to note in the patients' medical
records that the medications had been given. Petitioner was convicted of two
counts of endangering the
welfare of an incompetent person in that he failed to administer medications
to two elderly nursing home
patients and attempted to conceal that fact by falsely indicating in the patients'
records that the medications
had been given. Petitioner falls within the ambit of section 1128(a)(2) because:
(1) he was convicted of
two criminal offenses; (2) the convictions were for neglect of patients; and
(3) the acts of neglect occurred
in connection with the delivery of a health care item or service.
Petitioner has admitted that he was convicted of a criminal offense, within
the meaning of section 1128(i)
of the Act. Petitioner contends, however, that the conviction was not related
to neglect or abuse of
patients, within the meaning of section 1128(a)(2). Petitioner's argument appears
to be that because neither
patient was shown to have suffered any actual ill effects from Petitioner's
failure to administer medications,
no neglect or abuse occurred. See P. Mem. at 3-4. I disagree.
Petitioner's failure to administer medications to elderly nursing home patients
is an act of patient neglect
within the meaning of section 1128(a)(2). The term "neglect" is not
defined in section 1128. In the
absence of a statutory definition, the term must be defined according to its
common and ordinary meaning.
In the context of section 1128, "neglect" means failure to attend
to the needs of patients in circumstances
where the party is under a duty to provide care. Summit Health Care Limited,
dba Marina Convalescent
Hospital, DAB Civ. Rem. C-108 (1989), aff'd, DAB App. 1173 (1990). The Main
statute under which Petitioner was convicted defines endangering in almost identical terms:
As used in this section "endangers" includes a failure to act only
when the defendant had a legal
duty to protect the health, safety or mental welfare of the incompetent person.
Me. Rev. Stat. Ann. tit. 17-A, 555 (1983). No showing of actual injury to a
patient is required under
either standard.
Petitioner's duties as a nurse's aide/medication technician included the duty
to administer medications. His
failure to do so constituted an act of "neglect" within the meaning
of section 1128(a)(2). Petitioner was
convicted, after a jury trial, of endangering the welfare of two incompetent
persons. The legal definition of
that offense, under State law, encompasses the same conduct that constitutes
"neglect" under federal law.
Therefore, Petitioner's conviction was for neglect, within the meaning of the
Social Security Act.
Petitioner does not dispute that the acts of neglect for which he was convicted
occurred in connection with
the delivery of a health care item or service. Indeed, on the present facts
there could be no dispute. The
two patients who failed to receive their medications because of Petitioner's
neglect were confined to
Amenity Manor because their advanced age and ill health required skilled nursing
care. The administration
of medications is an integral part of the nursing care that patients in a nursing
home require. Therefore,
Petitioner's failure, as a nursing home employee, to administer medications
as prescribed is an act of
neglect in connection with the delivery of a health care item or service.
2. An exclusion of seven years is reasonable in this case.
Because Petitioner's conviction was for an act of neglect of patients in connection
with the delivery of a
health care item or service, the I.G. was required, under section 1128(c)(3)(B)
of the Act, to exclude
Petitioner for at least five years. The I.G. imposed an exclusion of ten years.
The I.G.'s notice to Petitioner
stated that an additional five years was added to the term of exclusion based
on two aggravating factors: (1)
a jury found Petitioner guilty of endangering the welfare of an incompetent
person, and (2) the court
sentenced Petitioner to a 205-day jail sentence. I.G. Ex. 1. In his Memorandum,
the I.G. also refers to
Petitioner's criminal record. The I.G. argues that this criminal record indicates
Petitioner's lack of
trustworthiness. I.G. Mem. at 9-10.
My review of the reasonableness of the exclusion imposed by the I.G. is de
novo. Social Security Act,
section 205(b)(1). Accordingly, in deciding the appropriate length of an exclusion,
I must make an
independent assessment of the law and the facts. Based on that independent assessment,
I have the
authority to and will modify an exclusion if I determine that the exclusion
is not reasonable. Id.
In determining the reasonableness of an exclusion, I am guided by the remedial
purpose of section 1128.
Congress enacted section 1128 to protect the Medicare and Medicaid programs
from fraud and abuse and
to protect the beneficiaries and recipients of those programs from incompetent
or inadequate care. See S.
Rep. No. 109, 100th Cong., 1st Sess. 1, reprinted in 1987 U.S. Code Cong. &
Admin. News 682. The
primary purpose of an exclusion, then, is to protect the Medicare and Medicaid
trust funds, and the
beneficiaries and recipients of those funds, from those individuals or entities
who have proven by their
misconduct that they are untrustworthy. See Christino Enriquez, M.D., DAB Civ.
Rem. C-277 at 9 (1991).
The Secretary has adopted regulations governing the duration of suspensions
for program-related crimes.
The regulations express the Secretary's policy for evaluating cases where the
I.G. has discretion in
determining the length of an exclusion, including exclusion periods beyond the
mandatory minimum. Id.
at 11. The regula-tions direct that the following factors be considered in determining
the length of an
exclusion:
(1) The number and nature of the program violations and other related offenses;
(2) The nature and extent of any adverse impact the violations have had on beneficiaries;
(3) The amount of the damages incurred by the Medicare, Medicaid, and the
social services
programs;
(4) Whether there are any mitigating circumstances;
(5) The length of the sentence imposed by the court;
(6) Any other facts bearing on the nature and seriousness of the program violations; and
(7) The previous sanction record of the suspended party under the Medicare or Medicaid program.
42 C.F.R. 1001.125. The regulations were adopted by the Secretary to implement
the Act prior to the
1987 Amendment. To the extent that they have not been repealed or modified,
however, it is appropriate
for me to continue to be guided by them, particularly in cases involving program-related
convictions.
On the facts of the present case, I find that there are aggravating factors
warranting an increase in the
length of exclusion beyond the mandatory five year minimum. However, the I.G.
has not proved all the
aggravating circumstances alleged in his notice and therefore has not proved
that an exclusion of ten years
is reasonable.
The I.G. argues that the nature of the offenses of which Petitioner was convicted
is an aggravating factor in
this case. I.G. Mem. at 8-9. I agree. Petitioner was convicted of failing to
administer medications to two
elderly nursing home patients, who, because of age and ill health, were unable
to care for themselves.
Findings 6, 7, 12. While his conduct may not have caused actual injury to the
patients, it did place them at
risk for serious health consequences. Findings 8-10. Moreover, an element of
Petitioner's crime was
concealment of his failure to give the medications. The false entries made by
Petitioner in the patients'
medical records could have misled doctors and nurses in making medical decisions
regarding the patients'
treatment. Finding 11. The nature of Petitioner's crimes indicates that he cannot
be trusted to care for
Medicare and Medicaid beneficiaries and recipients for a lengthy period of time.
The I.G. additionally argues that Petitioner's prior criminal record indicates
that he is not a trustworthy
individual. I.G. Mem. at 9-10. The I.G. has not specifically alleged that this
is an aggravating factor. A
substantial number of Petitioner's prior convictions involve deception or dishonesty.
Finding 17. The
conviction which formed the basis for Petitioner's exclusion also involved dishonesty,
in that Petitioner was
convicted of falsifying information on patients' medical records. Petitioner's
criminal record spans at least
seventeen years and includes a conviction for a theft occurring after the conduct
which formed the basis for
his exclusion. Petitioner's lengthy criminal record and the nature of the offenses
of which he has been
convicted demonstrate that he cannot be trusted to make accurate record entries
or to perform other duties
which depend upon his personal honesty. Therefore, I conclude that Petitioner's
prior convictions for
negotiating a worthless instrument and his convictions for theft, larceny, cheating
by false pretenses, and
theft by deception, all combined, constitute an aggravating factor warranting
a lengthy exclusion.
Finally, the I.G. argues that it is an aggravating factor that Petitioner was
sentenced to a "substantial" jail
term. I.G. Mem. at 9. Petitioner argues that, under the circumstances of this
case, his jail sentence should
not be regarded as an aggravating factor. Petitioner points out that he was
merely sentenced to "time
served," and that the only reason he was imprisoned pending his trial was
because he was unable to post
bail. Petitioner further argues that the maximum sentence for a class D misdemeanor
is 364 days in jail and
a $1000 fine. Since Petitioner was convicted on two counts, the trial judge
could have sentenced him to
nearly two years in prison, but instead decided not to impose any further term
of imprisonment. P. Mem.
at 4-5.
The record before me does not reflect whether the trial judge made any remarks
that would illuminate his
reasons for imposing the sentence he did. I can conclude that the judge chose
not to impose a longer prison
term, and that he chose not to impose a fine of any amount. However, it is not
clear from this record
whether the judge would have imposed a jail term, had Petitioner been free on
bail pending his trial. Had
Petitioner not been in jail for the 205 days preceding his trial, the trial
judge may not have imposed a
prison term at all. The regulations state that the length of any sentence imposed
must be considered in
setting the length of an exclusion. The regulations do not require that the
fact that a prison sentence was
imposed be considered an aggravating circumstance. I have considered the length
of the sentence imposed.
I consider it to be a neutral factor under the circumstances of this case. On
the present record, I conclude
that the I.G. has not proven that sentencing Petitioner to "time served"
as a consequence of his convictions
should be regarded as an aggravating factor in this case.
Because the I.G. has failed to prove the existence of one of the aggravating
factors on which he based his
decision to exclude Petitioner for ten years, I conclude that a ten-year exclusion
is excessive in this case.
See Victor M. Janze, M.D., DAB Civ. Rem. C-212 (1990). Neverthe-less, as I have
stated, the nature of
the crimes of which Petitioner was convicted and his history of dishonesty warrant
a lengthy period of
exclusion. Moreover, Petitioner has not offered any evidence of his present
trustworthiness or
rehabilitation since his conviction. Therefore, I conclude that an exclusion
of seven years is reasonable in
this case.
CONCLUSION
Based on the undisputed material facts and the law, I conclude that the I.G.'s
determination to exclude
Petitioner from participation in the Medicare and Medicaid programs was authorized
by law. I further
conclude that a seven year exclusion is reasonable and appropriate in this case.
IT IS SO ORDERED.
___________________________
Constance T. O'Bryant
Administrative Law Judge