Ernest Valle, CR No. 309 (1994)

$05:Exclusion Case

Department of Health and Human Services

DEPARTMENTAL APPEALS BOARD

Civil Remedies Division

In the Case of: Ernest Valle, Petitioner,
- v. -
The Inspector General.

DATE: April 15, 1994

Docket No. C-93-106
Decision No. CR309

DECISION

By letter dated June 15, 1993, Ernest Valle, the Petitioner herein,
was notified by the Inspector General (I.G.), United States
Department of Health & Human Services (HHS), that it had been
decided to exclude Petitioner for a period of five years from
participation in the Medicare, Medicaid, Maternal and Child Health
Services Block Grant and Block Grants to States for Social Services
programs. 1/ The I.G.'s rationale was that exclusion, for at least
five years, is mandated by sections 1128(a)(2) and 1128(c)(3)(B) of
the Social Security Act (Act) because Petitioner had been convicted
of a criminal offense relating to neglect or abuse of patients 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.
The I.G. moved for summary disposition.

Because I have determined that there are no facts of decisional
significance genuinely in dispute, and that the only matters to be
decided are the legal implications of the undisputed facts, I have
decided the case on the basis of the parties' written submissions.

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
relating to 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. During the period relevant to this case, Petitioner was
employed by the Woodlawn Hills Care Center (Woodlawn) as its
administrator. I.G. Ex. 4. 2/

2. Woodlawn is a nursing home facility. September 28, 1993 Order
and Schedule for Submission of Briefs and Exhibits; I.G. Ex. 4;
I.G. Br. at 1, 12.

3. On March 22, 1991, Petitioner was charged, by information,
with the criminal offense of failure to report abuse (Tex. Stat.
Ann. Art. 4442C, 16(a)(g)). I.G. Exs. 1, 2.

4. The abuse Petitioner was charged with failing to report
allegedly had been inflicted upon a patient at Woodlawn by an
orderly who was employed by Woodlawn. I.G. Exs. 1, 4.

5. In March 1989, the acting director of nurses at Woodlawn
allegedly had reported the patient's complaints of abuse by an
orderly to Petitioner in his official capacity as Woodlawn's
administrator. P. Br. at 1; I.G. Br. at 1; FFCL 1, 4.

6. On April 30, 1991, in the County Court of Bexar County,
Texas, Petitioner pled nolo contendere to the charge of failure to
report abuse. I.G. Exs. 2, 3; FFCL 3.

7. On September 4, 1991, the court accepted Petitioner's plea and
imposed monetary penalties and a period of probation upon him.
I.G. Exs. 2, 3; FFCL 6.

8. Instead of "entering an adjudication of guilty" (I.G. Ex. 2)
against Petitioner, the court deferred further proceedings against
him pending completion of probation. I.G. Exs. 2, 3.

9. On March 4, 1992, Petitioner satisfactorily completed his
deferred adjudication probation and, on that day, the court
dismissed the charge against him. I.G. Ex. 3; FFCL 3, 8.

10. To justify excluding an individual pursuant to section
1128(a)(2) of the Act, the I.G. must prove: (1) that the
individual has been convicted of a criminal offense; (2) that the
conviction is related to the neglect or abuse of patients; and (3)
that the patient neglect or abuse to which an excluded individual's
conviction is related occurred in connection with the delivery of
a health care item or service.

11. The court's acceptance of Petitioner's nolo contendere plea
constitutes a conviction within the meaning of section 1128(i)(3)
of the Act. FFCL 6-7.

12. The court's deferral of a formal finding of guilt against
Petitioner is a deferred adjudication or other arrangement or
program where judgment of conviction has been withheld,
constituting a conviction within the meaning of section 1128(i)(4)
of the Act. FFCL 8.

13. The Woodlawn resident who allegedly was abused was a patient
at Woodlawn. I.G. Ex. 4; P. Br. at 1.

14. Under State law, Petitioner, as Woodlawn's administrator, owed
a legal duty of care to Woodlawn's patients to report any
allegations of patient abuse which either had occurred or might
have occurred. FFCL 1.

15. Petitioner's failure to report the alleged abuse at issue was
an offense related to the neglect or abuse of a patient, within the
meaning of section 1128(a)(2). FFCL 14.

16. As Woodlawn's administrator, Petitioner was responsible for
the health, safety, and well-being of all patients at Woodlawn,
including the responsibility to ensure that the health care
services provided to Woodlawn's patients safeguarded the patients'
health, safety, and well-being.

17. Part of the health care services Petitioner rendered to
Woodlawn's patients was his duty to report incidents or allegations
of abuse or neglect to proper authorities in order to protect the
health, safety, and well-being of those patients. FFCL 14-16.

18. Petitioner's failure to report the alleged abuse directly
related to the duty of care he owed to the allegedly abused patient
and occurred in connection with the delivery of his health care
services to that patient. FFCL 17.

19. The conviction of the criminal offense at issue here relates
to the neglect or abuse of a patient and is connected with the
delivery of a health care item or service, within the meaning of
section 1128(a)(2) of the Act. FFCL 10-18.

20. The five-year exclusion imposed and directed against
Petitioner by the I.G. is for the minimum period required by the
Act. Act, sections 1128(a)(2), 1128(c)(3)(B).

21. Under section 1128(a)(2) of the Act, the fact that a
conviction within the meaning of section 1128(i) has occurred
mandates exclusion. An administrative law judge is not authorized
to look behind the conviction.

22. Neither the I.G. nor an administrative law judge is authorized
to reduce the length of a mandatory five-year period of exclusion.


23. The I.G. properly excluded Petitioner from participation in
the Medicare and Medicaid programs for five years, as required by
sections 1128(a)(2) and 1128(c)(3)(B) of the Act.

PETITIONER'S ARGUMENT

Petitioner contends that he did not plead guilty or nolo contendere
to the charge of failure to report abuse, that he was not convicted
of the charge of failure to report abuse, that he was not convicted
of an offense involving the neglect or abuse of patients, that he
was not put on probation, and that he did not receive a deferred
adjudication as defined by State law. P. Br. at 1-3; P. Proposed
FFCL at 1; see letter from Petitioner's attorney, dated August 13,
1993. Petitioner alleges also that he did, in fact, report the
alleged abuse. P. Br. at 1.

Specifically, Petitioner argues that court records introduced by
the I.G. do not show that his case was disposed of as the I.G.
alleges. Petitioner asserts the I.G. misunderstood the court's
docket sheet relating to his case (I.G. Ex. 3) and misinterpreted
the nature of the court's action. Petitioner asserts further that
the I.G. did not consider the necessary legal elements of a
deferred adjudication as defined by State law. P. Br. at 1-3.
Petitioner argues further that there is a crucial difference
between a deferred adjudication and what he calls "straight
probation." P. Br. at 1. It is Petitioner's contention that his
case is not a deferred adjudication, principally because the court
made no formal declaration of a deferred adjudication and did not
impose community supervision (by which Petitioner means supervised
probation). Additionally, Petitioner asserts that the court did
not make an entry that Petitioner was warned of the consequences of
violating his probation. P. Br. at 1-2. Instead, Petitioner
maintains that he was charged with a criminal offense, but that the
charge was eventually dismissed, apparently for reasons having
nothing to do with the State's deferred adjudication process. P.
Br. at 3.


DISCUSSION

The undisputed facts establish that, on March 22, 1991, Petitioner
was charged, by information, with the criminal offense of failure
to report abuse (Tex. Stat. Ann. Art. 4442C, 16(a)(g)). FFCL 3.
The abuse Petitioner was charged with failing to report allegedly
had been inflicted upon a patient at Woodlawn by an orderly who was
employed by Woodlawn. I.G. Ex. 4; FFCL 4. In March 1989, the
acting director of nurses at Woodlawn reported the patient's
complaints of abuse by an orderly to Petitioner in his official
capacity as Woodlawn's administrator. FFCL 5. The Criminal
Investigative Report Supplement prepared by the Texas Attorney
General's Medicaid Fraud Control Unit, the contents of which are
summarized in the affidavit of William J. Hughes (I.G. Ex. 4),
contains the information that the patient said the orderly
frequently hit him on the head and covered his mouth. I.G. Ex. 4.
In the course of investigating a second incident of abuse involving
the same orderly, a special investigator with the Texas Department
of Health contacted the regional Texas Department of Health in San
Antonio and requested that it review all incident reports from
March 1989 through May 1989 for any incident report concerning the
first incident of abuse which was alleged to have taken place in
March 1989. The Texas Department of Health's review found no
report of the March 1989 incident. I.G. Ex. 4.

To justify excluding an individual pursuant to section 1128(a)(2)
of the Act, the I.G. must prove: (1) that the individual charged
has been convicted of a criminal offense; (2) that the conviction
is related to the neglect or abuse of patients; and (3) that the
patient neglect or abuse to which an excluded individual's
conviction is related occurred in connection with the delivery of
a health care item or service.

A. Petitioner was convicted of a criminal offense within the
meaning of section 1128(i) of the Act.

Section 1128(i) of the Act indicates that there are several actions
a court can take which the Act will regard as the equivalent of a
conviction for purposes of mandatory exclusion. Specifically, 1)
a court could enter a judgment of conviction (it is immaterial
whether there is an appeal pending or whether the judgment is
ultimately expunged) (section 1128(i)(1)); 2) a court could make a
formal finding of guilt (section 1128(i)(2)); 3) a court could
accept a guilty or nolo contendere plea (section 1128(i)(3)); or,
4) a court could allow the individual or entity to enter into a
first offender, deferred adjudication, or other arrangement or
program where judgment of conviction has been withheld (section
1128(i)(4)).

I find that the facts show Petitioner to have been "convicted"
based upon: 1) the court's acceptance of his nolo contendere plea,
which falls within the meaning of section 1128(i)(3) of the Act,
and 2) the court's placing Petitioner in a deferred adjudication
status or other arrangement or program where judgment of conviction
has been withheld, which falls within the meaning of section
1128(i)(4) of the Act. FFCL 11-12. The I.G. supports her
contention that Petitioner was "convicted" within the meaning of
section 1128(i) of the Act by submitting as exhibits two public
documents, a Deferred Adjudication document and a document
captioned "Criminal Docket." I.G. Exs. 2, 3.

I.G. Ex. 2 is a photocopy of a report or summation of the minutes
of the court, with the heading "Capias Pro Fine -- Deferred
Adjudication." I.G. Ex. 2. This document was signed by a deputy
to the clerk of the County Court at Law, Bexar County, Texas, on
September 4, 1991, and bears the (authenticated) seal of the court.
I.G. Ex. 2. The I.G. attached a declaration to this exhibit
representing that the exhibit was a true copy of the original on
file with the County Clerk of Bexar County, Texas. This Deferred
Adjudication document states that Petitioner appeared in court,
with his attorney, and "...entered a plea of nolo to the offense of
failure to report abuse...as charged in the information." I.G. Ex.
2. The document continues by stating that the court, on September
4, 1991, after listening to the Petitioner and reviewing evidence,
"...deferred further proceedings without entering an adjudication
of guilty, placed the defendant on probation for a term of six
months..." and required him to pay fines and costs. I.G. Ex. 2.

Petitioner argued that this Deferred Adjudication document was "not
an order signed by the Court but is in fact an entry by a Clerk in
order to obtain money." P. Br. at 2. I reject Petitioner's
characterization of this official court document. The document
clearly recites the action taken by the court ("...the Court, after
receiving defendant's plea, after hearing the evidence submitted,
the Court deferred further proceedings without entering an
adjudication of guilty...") with respect to Petitioner's case.
I.G. Ex. 2. The fact that the document was signed by a deputy to
the clerk is not fatal. The court's seal has been impressed upon
it and the document provides for the signature of a deputy to the
clerk rather than for a judge's signature. Accordingly, it has
been signed by the appropriate public official. Moreover, although
this document does state the fines and costs assessed upon
Petitioner, it serves more than a mere bookkeeping purpose. I find
that the Deferred Adjudication document is, on its face, a routine
record kept by the court in the course of its ordinary business,
and is a trustworthy recitation of the court's proceedings against
Petitioner.

The other court document submitted as an exhibit by the I.G. (I.G.
Ex. 3) is a photocopy of a ledger-like page captioned "Criminal
Docket," which has columns for judges' orders and clerks'
memoranda. With respect to the meaning of the handwritten markings
on this document for the September 4, 1991 entry, Petitioner stated
that "[t]here is no basis offered to support the Inspector
General's interpretation of the markings in question. Further, the
cited entries were made more than four months after the fact." P.
Br. at 1. The I.G. attached a declaration to this exhibit
representing that the exhibit was a true copy of the original on
file with the County Clerk of Bexar County, Texas. Unlike I.G. Ex.
2, which deals almost exclusively with Petitioner's court
appearance on September 4, 1991, I.G. Ex. 3 is a log of
Petitioner's involvement with the State court system over an
11-month period, containing the date of his first court appearance,
to the ultimate dismissal of his case. I reject Petitioner's
unsubstantiated claim that some of the entries were made "after the
fact." Moreover, whether or not the entries were made "after the
fact," I find this document to be trustworthy as a routine record
summary of Petitioner's case as kept by the court in the course of
its ordinary business.

I conclude that preponderant evidence shows I.G. Exs. 2 and 3 to be
relevant, trustworthy, and not readily subject to
misinterpretation. Thus, I reject Petitioner's argument that I.G.
Exs. 2 and 3 must have been misunderstood and misinterpreted by the
I.G.

The Deferred Adjudication document and the Criminal Docket sheet
support the I.G.'s contention that Petitioner entered a nolo
contendere plea to the offense of failure to report abuse. FFCL
6-7. Both court documents indicate that Petitioner pled "nolo." 3/


Petitioner offered his nolo contendere plea to dispose of the
criminal charge against him. The record demonstrates that the
court heard the plea, evaluated it, and then imposed monetary
penalties and a period of probation 4/ upon Petitioner. FFCL 7.
Put another way, the court, motivated by Petitioner's plea, took
action to resolve the charges brought against him, thereby
disposing of his case. Such an assumption of control by the court
over this case may be regarded as proof of the court's "acceptance"
of the plea. I find that this arrangement amounts to acceptance of
Petitioner's plea of nolo contendere within the meaning of section
1128(i)(3). See Douglas L. Reece, D.O., DAB CR280 (1993),
remanded, DAB 1448 (1993), on remand, DAB CR305 (1994); Act,
section 1128(i)(3); FFCL 6-7.

I find further that the court's imposition of fines, costs, and a
period of probation upon Petitioner (during which time entry of
judgment against him was deferred), followed by the dismissal of
all charges when the probationary period was satisfactorily
completed, amounts to additional confirmation that his nolo
contendere plea was accepted.

The court's disposition of Petitioner's case also constitutes a
conviction under section 1128(i)(4). Under section 1128(i)(4) of
the Act, an individual is considered to have been "convicted" of a
criminal offense if he "has entered into participation in a first
offender, deferred adjudication, or other arrangement or program
where judgment of conviction has been withheld." (Emphasis added.)
Petitioner insists that his case cannot be called a deferred
adjudication because it did not correspond to his interpretation of
certain State laws relevant to deferred adjudications (for example,
he believes that State law makes unsupervised probation
incompatible with deferred adjudication). P. Br. at 1-2. The
problem with Petitioner's argument (besides the fact that
Petitioner's statutory interpretations are by no means beyond
dispute) is that it is irrelevant for purposes of this
administrative proceeding whether Petitioner's case was a deferred
adjudication as defined by State law. At issue is whether
Petitioner's deferred adjudication fits within one of the
definitions of "conviction" under section 1128(i) of the Act.
Moreover, Petitioner did not controvert the facts set forth in the
I.G.'s exhibits. In his brief, Petitioner stated that he "adopts"
all of the I.G.'s exhibits. P. Br. at 3. Instead, Petitioner
presents a legal argument as a question of fact.

The last entry on the Criminal Docket sheet evidences the ultimate
disposition of Petitioner's case. Although some of the entries on
this document are handwritten and almost unreadable, this final
entry was made with a rubber stamp and is quite clear. Next to the
handwritten date of "3/4/92" is the entry: "Defr. Adj. Prob.
Satisfied and Dismissed." I.G. Ex. 3. It is noteworthy that
Petitioner himself argues that the criminal charge against him "was
subsequently dismissed." P. Br. at 3. Thus, based on Petitioner's
own statement, it is clear that the court did take some type of
action in his case. That the court dismissed Petitioner's charge
is borne out by the 3/4/92 stamped entry, which indicates that the
charge was dismissed. However, in addition to stating the word
"Dismissed", the stamped entry also states the abbreviations "Defr.
Adj. Prob." With respect to these abbreviations, I find that they
stand for "Deferred Adjudication Probation." Thus, reading the
stamped entry of 3/4/92 in its entirety, I find it to mean that
Petitioner, on March 4, 1992, had satisfactorily completed his
deferred adjudication probation and, on that day, the court
dismissed the charge against him. FFCL 9.

I find that the manner in which the court treated Petitioner falls
within the term "deferred adjudication, or other program where
judgment of conviction has been withheld." Act, section
1128(i)(4). This conclusion is consistent with the plain meaning
of section 1128(i)(4). Additionally, as the I.G. correctly points
out, the action taken by the court is the type of arrangement
contemplated by Congress, as expressed through legislative history.
I.G. Br. at 8-9. The congressional committee charged with drafting
the 1986 amendments to the Act stated:

The principal criminal dispositions to which the exclusion
remedy [currently] does not apply are the "first offender" or
"deferred adjudication" dispositions. It is the Committee's
understanding that States are increasingly opting to dispose of
criminal cases through such programs, where judgment of conviction
is withheld. The Committee is informed that State first offender
or deferred adjudication programs typically consist of a procedure
whereby an individual pleads guilty or nolo contendere to criminal
charges, but the court withholds the actual entry of a judgment of
conviction against them and instead imposes certain conditions of
probation, such as community service or a given number of months of
good behavior. If the individual successfully complies with these
terms, the case is dismissed entirely without a judgment of
conviction ever being entered.

These criminal dispositions may well represent rational
criminal justice policy. The Committee is concerned, however, that
individuals who have entered guilty or nolo [contendere] pleas to
criminal charges of defrauding the Medicaid program are not subject
to exclusion from either Medicare or Medicaid. These individuals
have admitted that they engaged in criminal abuse against a Federal
health program and, in the view of the Committee, they should be
subject to exclusion. If the financial integrity of Medicare and
Medicaid is to be protected, the programs must have the prerogative
not to do business with those who have pleaded to charges of
criminal abuse against them.

H.R. Rep. No. 727, 99th Cong., 2d Sess. 75 (1986), reprinted in
1986 U.S.C.C.A.N. 3607, 3665.

As I said in Reece, Congress intended to exclude from Medicare and
Medicaid programs those who entered into first offender or deferred
adjudication arrangements or programs. The legislative history
demonstrates Congress' strong desire to protect the Medicare and
Medicaid programs from untrustworthy providers. Although the
aforementioned passage refers to the mandatory provisions of
section 1128(a)(1), it is reasonable to apply this same rationale
to those who are excluded under section 1128(a)(2). I find that
the arrangement between Petitioner and the court falls squarely
within the kinds of arrangements envisioned by the congressional
drafting committee to be within the scope of section 1128(i)(4).
See Reece, DAB CR305, at 15 (1994).

Finally, Petitioner argues that he is not guilty of failing to
report abuse, stating that he did notify the Texas Department of
Health of the alleged abuse. P. Br. at 1. However, I am not
authorized to look behind a conviction. FFCL 21. Peter J.
Edmonson, DAB 1330, at 4 (1992). Thus, an excluded person or
entity may not utilize administrative proceedings to collaterally
attack a prior court action (for example, by seeking to show that
he did not do the act charged, or that there was no criminal
intent, or that a criminal conviction was tainted by legal error).
Id. at 4-5. Additionally, Petitioner asserts that the court "made
no entry of any kind regarding the required admonition of the
consequences of a violation of the mandated community supervision."
P. Br. at 2. If Petitioner is suggesting that his conviction is
void because of this alleged oversight, such an argument is not
valid here. Petitioner may have recourse in the State courts to
rectify such matters, but not in this forum. Peter J. Edmonson;
Richard G. Philips, D.P.M., DAB CR133 (1991), aff'd, DAB 1279
(1991).

I re-emphasize that the evidence leaves no doubt about what
happened to Petitioner in the State judicial system. First,
Petitioner pled nolo contendere, and the court evaluated the plea
in the context of the relevant evidence. The court then afforded
Petitioner some leniency, by allowing him to pay a sum of money and
undergo a period of probation, following which the case against him
could be (and was) dismissed. FFCL 6-9. These facts are set forth
unambiguously in reliable and trustworthy public documents, and
they comport fully with the "conviction" requirement of the federal
mandatory exclusion law.

By contrast, Petitioner offered no evidence to support his view of
the disposition of his case. Petitioner asserted that he was
charged with a criminal offense, but that the charge was dismissed.
Petitioner did not explain the circumstances behind the dismissal
of the charge, other than to argue that a deferred adjudication had
not taken place. P. Br. at 3.

Thus, I find that the court's handling and disposition of
Petitioner's case falls within the definition of a conviction under
sections 1128(i)(3) and (4) of the Act, thereby conclusively
establishing that Petitioner was "convicted."

B. Petitioner's conviction relates to the neglect or abuse of
patients in connection with the delivery of a health care item or
service.

1. The Woodlawn resident who allegedly was abused is a patient.

The alleged abuse which Petitioner was convicted of not reporting
consisted of a report of physical attacks upon a resident being
cared for at Woodlawn. The abuse was allegedly committed by an
orderly employed by Woodlawn. FFCL 4. In the Information, the
victim is referred to only as a "residence [sic]" at Woodlawn (I.G.
Ex. 1). However, the Criminal Investigative Report Supplement
prepared by the Texas Attorney General's Medicaid Fraud Control
Unit, the contents of which are summarized in the affidavit of
William J. Hughes (I.G. Ex. 4), contains information that the
institutionalized resident at Woodlawn who complained of being
abused by an orderly was a "patient" at Woodlawn. Specifically,
the affidavit states that, on June 13, 1989, a nurse at Woodlawn
reported to the Medicaid Fraud Control Unit investigator that, on
March 23, 1989, when she was the acting director of nurses, she
received information that one of the patients at Woodlawn had
complained that he was being abused by an orderly. The patient
said that the orderly frequently hit him on the head and covered
his mouth. I.G. Ex. 4. I note also that Petitioner did not
contest that the Woodlawn resident was a patient. In his brief,
Petitioner stated, "[a]s the Inspector General points out[,] the
employee, who was an orderly, denied abusing the patient."
(Emphasis added.) P. Br. at 1. I conclude from this that the
Woodlawn resident who was allegedly abused was a patient at
Woodlawn. FFCL 13.

2. Petitioner's failure to report the alleged abuse of the
Woodlawn patient was an offense related to the neglect or abuse of
a patient, within the meaning of section 1128(a)(2).

Petitioner's failure to report the alleged abuse at issue was an
offense related to the neglect or abuse of a patient, within the
meaning of section 1128(a)(2). FFCL 15. Petitioner is not alleged
to have abused anyone. However, the State has a legitimate
interest in requiring health care workers to report incidents of
suspected patient abuse. Towards this end, the State has a
mandatory reporting requirement, which Petitioner was convicted of
violating. The specific violation, as stated in the Information
filed by the State against Petitioner, was that the Petitioner,
"while an employee of an institution, namely: Woodlawn Hills Care
Center, and having cause to believe that an institution residence's
[sic]...physical and mental health and welfare had been or may have
been adversely affected by abuse, to-wit: physical contact, caused
by another,...did knowingly fail to report said incident in
violation of Art. 4442C, Sec. 16, subsection (a) and (g), V.A.C.S."
I.G. Ex. 1.

Under State law, Petitioner, as Woodlawn's administrator, owed a
legal duty of care to Woodlawn's patients to report any allegations
of patient abuse which either had occurred or might have occurred.
FFCL 14. Petitioner had a duty to maintain the health, safety, and
well-being of all the patients at Woodlawn and to ensure that their
health, safety, and well-being was not put in jeopardy. FFCL 16.
By failing to report the alleged abuse in this case, Petitioner
breached his duty of care to a Woodlawn patient, which directly
impacted the health, safety, and well-being of that patient. Thus,
Petitioner's offense was related to the neglect or abuse of a
patient, within the meaning of section 1128(a)(2). FFCL 15. See
Dawn Potts, DAB CR120 (1991); Vicky L. Tennant, R.N., DAB CR134
(1991); Glen E. Bandel, DAB CR261 (1993); Carolyn Westin, DAB CR229
(1992), aff'd, DAB 1381 (1993).

Accordingly, I conclude that Petitioner's conviction for failure to
report abuse constitutes a conviction of a criminal offense related
to the neglect or abuse of a patient within the meaning of section
1128(a)(2) of the Act. FFCL 10-15.

3. The abuse Petitioner was charged with failing to report
occurred in connection with the delivery of a health care item or
service.

Finally, to justify an exclusion pursuant to section 1128(a)(2), I
must find that the patient neglect or abuse to which an excluded
individual's conviction is related occurred in connection with the
delivery of a health care item or service. Here, Petitioner was a
nursing home administrator, 5/ and, as such, he provided health
care services to all patients at Woodlawn. This is because, as
Woodlawn's administrator, Petitioner had overall responsibility for
the health, safety, and well-being of all Woodlawn's patients.
FFCL 16. This responsibility included reporting incidents or
allegations of abuse which might adversely affect a Woodlawn
patient's health, safety, or well-being to the proper authorities.
FFCL 17. Petitioner's failure to report the alleged abuse of a
patient is thus inextricably related to the health care of that
patient. Therefore, I conclude that Petitioner's failure to report
the alleged abuse directly related to the duty of care he owed to
the allegedly abused patient here and occurred in connection with
the delivery of his health care services to that patient, within
the meaning of section 1128(a)(2). FFCL 18; See Vicky L. Tennant,
R.N. Accordingly, the conviction of the criminal offense at issue
here relates to the neglect or abuse of a patient and is connected
with the delivery of a health care item or service, within the
meaning of section 1128(a)(2) of the Act. FFCL 19.

CONCLUSION

Sections 1128(a)(2) and 1128(c)(3)(B) of the Act mandate that the
Petitioner herein be excluded from the Medicare and Medicaid
programs for a period of at least five years because he was
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. FFCL 20. Neither the I.G. nor an administrative law
judge is authorized to reduce the five-year minimum mandator

period of exclusion. FFCL 22; Jack W. Greene, DAB CR19, aff'd, DAB
1078 (1989), aff'd sub nom., Greene v. Sullivan, 731 F. Supp. 835,
838 (E.D. Tenn. 1990).

The five-year exclusion is, therefore, sustained.



Joseph K. Riotto
Administrative Law Judge

1. In this decision, I refer to all programs from which
Petitioner has been excluded, other than Medicare, as "Medicaid."


2. The parties' briefs and my findings of fact and conclusions
of law will be cited as follows:

I.G.'s Brief in Support of I.G. Br. (at page)
Motion for Summary
Disposition

I.G.'s Proposed Findings of I.G. Proposed FFCL (at Fact
and Conclusions of Law page)

Petitioner's Brief in P. Br. (at page)
Opposition to Motion for
Summary Disposition

Petitioner's Proposed Findings P. Proposed FFCL (at
of Fact and Conclusions of page)
Law

I.G.'s Reply Brief I.G. R. Br. (at page)

My Findings and Conclusions FFCL

The I.G. submitted four exhibits. Petitioner "adopts" all of the
I.G.'s exhibits. P. Br. at 3. I admit I.G. exhibits 1-4 into
evidence. I cite the I.G.'s exhibits as "I.G. Ex. (number) (at
page)." Petitioner submitted no exhibits.

3. In the August 13, 1993 letter from Petitioner's attorney
requesting a hearing, Petitioner's attorney stated that "[o]n the
advice of Counsel, [Petitioner] entered a plea of "no contest" on
the understanding the charge against him would be dismissed."
However, during the September 8, 1993 prehearing conference and in
Petitioner's proposed findings of fact, Petitioner asserted that he
"did not plead nolo contendere to failure to report abuse. . ." P.
Proposed FFCL at 1. However, both I.G. Exs. 2 and 3 refute
Petitioner's assertions that he did not plead nolo contendere.

4. Although Petitioner denies that he was ever put on probation
by the court or ever served a period of probation (P. Br. at 2),
the evidence shows that Petitioner served a six-month period of
probation. The Deferred Adjudication document, by which the court
summarized its deferral of further proceedings without entering an
adjudication of guilt and placed Petitioner on a six-month
probation, is dated September 4, 1991. I.G. Ex. 2. The court
dismissed Petitioner's charge on March 4, 1992, which is exactly
six months from September 4, 1991. I.G. Ex. 3. Any doubt as to
whether Petitioner served probation is clarified by the stamped
"3/4/92" entry on I.G. Ex. 3, which, on its face, indisputably
indicates that Petitioner satisfied his deferred adjudication
probation.

5. Petitioner did not contest that Woodlawn is a nursing home
facility.