Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD
Civil Remedies Division
In the Case of: Ronald E. Jones, Petitioner,
- v. -
The Inspector General.
DATE: April 16, 1993
Docket No. C-92-096
Decision No. CR257
DECISION
By letter dated April 7, 1992, Ronald E. Jones, the Petitioner herein, was
notified by the Inspector General
(I.G.), U.S. Department of Health & Human Services (HHS), that it had been
decided to exclude him for a
period of five years from participation in the Medicare program and from participation
in the State health
care programs mentioned in section 1128(h) of the Social Security Act (Act).
(I use the term "Medicaid" in
this Decision when referring to the State programs.) The I.G. explained that
the five-year exclusion was
mandatory under sections 1128(a)(2) and 1128(c)(3)(B) of the Act because Petitioner
had been convicted
of a criminal offense related to the abuse of a patient in connection with the
delivery of a health care item
or service.
Petitioner filed a timely request for review of the I.G.'s action, and the
I.G. moved for summary
disposition.
Because I conclude that there are no material and relevant factual issues in
dispute, I have granted the I.G.'s
motion and have decided the case on the basis of written submissions in lieu
of an in-person hearing.
I affirm the I.G.'s determination to exclude Petitioner from participation
in the Medicare and Medicaid
programs for a period of five years.
APPLICABLE LAW
Sections 1128(a)(2) and 1128(c)(3)(B) of the Act make it mandatory for any
individual who has been
convicted of a criminal offense related to the neglect or abuse of patients,
in connection with the delivery
of a health care item or service, to be excluded from participation in the Medicare
and Medicaid programs
for a period of at least five years.
FINDINGS OF FACT AND CONCLUSIONS OF LAW 1/
1. On July 22, 1991, Petitioner was a nurse's aide employed at the Episcopal
Church Home (Home) in
Hockessin, Delaware. I.G. Ex. 13.
2. During the relevant period, the Home was a certified provider of health
care services under the
Medicare program. I.G. Ex. 14.
3. Among Petitioner's duties on July 22, 1991 was providing nursing care to
an 82-year-old male stroke
victim who required total nursing care, including medication and assistance
in all phases of daily living.
I.G. Ex. 6, 13.
4. Petitioner was charged by the State of Delaware with intentionally striking
the aforesaid 82-year-old
male stroke victim on July 22, 1991, thereby violating section 1136(1) of Title
16 of the Delaware Code.
I.G. Ex. 3.
5. On September 25, 1991, Petitioner pled guilty in the New Castle County,
Delaware, Superior Court to
abusing a resident of the Home. I.G. Ex. 2, 3.
6. On September 25, 1991, the Delaware court accepted Petitioner's plea of
guilty and sentenced him to
one year's imprisonment (suspended) and placed him on probation. Also, the Delaware
court ordered that
Petitioner not work in the health care field during his probation. I.G. Ex.
4.
7. Section 1128(a)(2) of the Act mandates the exclusion, for a minimum period
of five years, of any
person who has been 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.
8. The Secretary of HHS delegated to the I.G. the authority to impose exclusions
pursuant to section 1128
of the Act. 48 Fed. Reg. 21662 (1983).
9. By letter dated April 7, 1992, Petitioner was notified by the I.G. that
it had been decided to exclude him
for a period of five years from participation in the Medicare and Medicaid programs
because Petitioner had
been convicted of a criminal offense related to the abuse or neglect of patients
in connection with the
delivery of a health care item or service. I.G. Ex. 7.
10. In light of the fact that the stroke victim required and received skilled
nursing care at the Home, his
status at the home on July 22, 1991, was that of a patient receiving treatment.
I.G. Ex. 13
11. Petitioner's conviction for abusing a resident constitutes a criminal conviction
relating to patient abuse
in connection with the delivery of a health care service, within the meaning
of section 1128(a)(2) of the
Act. Findings 1 - 10.
12. The Act requires persons who violate section 1128(a)(2) to be excluded
for a minimum of five years,
which period cannot be waived or lessened. Sections 1128(a)(2) and 1128(c)(3)(B)
of the Act.
PETITIONER'S ARGUMENTS
In this proceeding, Petitioner does not claim either that he was not convicted
or that the I.G. did not have a
basis upon which to exclude him. Rather, he contends that the crime for which
he was convicted did not
reflect his training and his character. Petitioner alleges that he was trained
to treat people well and that
when he hit the stroke victim he was acting only instinctively, as the stroke
victim had spit at him.
Petitioner states also that he "love[s] to work in the nursing field,"
and asks that he not be barred from so
doing for five years. See Petitioner's letter to Gerald Choppin of July 13,
1992; Petitioner's response brief
of September 20, 1992; staff attorney's letter to the parties of March 25, 1993.
DISCUSSION
The law relied upon by the I.G. to exclude Petitioner requires that the individual
to be excluded have been
1) convicted of a crime; 2) involving the neglect or abuse of a patient; and
3) in connection with the
delivery of a health care item or service.
Here, Petitioner, a nurse's aide, was charged with intentionally and unlawfully
striking an 82-year-old man
living at the Home who was in Petitioner's care at the time. Petitioner pled
guilty to the charge of abusing
a resident. The Delaware court accepted his plea and he was sentenced. Section
1128(i)(3) of the Act
provides that when a person enters a plea of guilty to a criminal charge and
the court accepts such plea, that
individual will be regarded as having been "convicted" within the
meaning of the mandatory exclusion
provisions of the Act. As Petitioner's plea of guilty was accepted by the Delaware
court, Petitioner was
convicted of a crime within the meaning of the Act.
Petitioner's conviction also involved the abuse of a patient. The affidavit
evidence which the I.G.
submitted, and which was not disputed by Petitioner, establishes that the Home
is a Medicare certified
medical care facility; that the stroke victim was there to receive skilled nursing
care as a patient; and that
Petitioner was employed as a nurse's aide when he abused the stroke victim.
The Delaware court found
that Petitioner's action constituted abuse. Thus, Petitioner's conviction satisfies
the statutory requirement of
section 1128(a)(2) that there be abuse of a patient. Moreover, Petitioner's
abuse of the stroke victim
occurred in the course of Petitioner's provision of nursing care to the stroke
victim. Thus, Petitioner's
conviction constitutes a conviction of a criminal offense relating to the abuse
of a patient in connection
with the delivery of a health care service, satisfying the basis for exclusion
under section 1128(a)(2) of the
Act.
Petitioner has attempted to explain his conduct as a reflexive gesture, contrary
to his training and character.
However, Petitioner's explanations are irrelevant. Section 1128(a)(2) of the
Act is controlling wherever it
is shown that an appropriate criminal conviction has occurred. DeWayne Franzen,
DAB 1165 (1990). The
statute precludes looking beyond the fact that there was a conviction. Richard
G. Philips, D.P.M., DAB
CR133 (1991), aff'd, DAB 1279 (1991). Indeed, an appellate panel of the Departmental
Appeals Board
has explicitly held that ". . . the level of intent of the individual in
committing the offense is not relevant
under section 1128(a);" it is the conviction which compels exclusion. Summit
Health Limited, DAB 1173
(1990).
Once I find that section 1128(a)(2) is applicable, the Act requires that the
individual who has been
convicted of patient abuse or neglect in connection with the delivery of a health
care item or service be
excluded for a minimum period of five years. There is no authority in law or
regulation by which an
administrative law judge can waive or reduce the exclusion.
CONCLUSION
Petitioner's conviction of a criminal offense involving patient abuse in connection
with the delivery of a
health care service justifies the five-year exclusion imposed and directed against
Petitioner by the I.G.
__________________________________
Joseph K. Riotto
Administrative Law Judge
1. Petitioner and the I.G. both submitted briefs. Also, the I.G. submitted exhibits
in support of the I.G.'s
briefs. In the absence of objection, I have admitted all of the I.G. exhibits
(I.G. Ex.). However, I have
renumbered the three exhibits submitted by the I.G. on February 5, 1993, with
the renewed motion for
summary disposition. Thus, I.G. Ex. 1 of the renewed motion is now I.G. Ex.
12, I.G. Ex. 2 of the renewed
motion is now I.G. Ex. 13, and I.G. Ex. 3 of the renewed motion is now I.G.
Ex. 14.