$05:Exclusion Case
Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD
Civil Remedies Division
In the Case of: Teri L. Gregory, Petitioner,
- v. -
The Inspector General.
DATE: October 3, 1994
Docket No. C-93-080
Decision No. CR336
DECISION
By letter dated May 10, 1993 (Notice), the Inspector General (I.G.)
of the United States Department of Health and Human Services (DHHS)
notified Teri L. Gregory (Petitioner) that she was being excluded
from participation in the Medicare, Medicaid, Maternal and Child
Health Services Block Grant and Block Grants to States for Social
Services programs for a period of five years. 1/ The I.G. advised
Petitioner that she was being excluded as a result of her
conviction of a criminal offense related to the delivery of an item
or service under the Medicare and Medicaid programs, within the
meaning of section 1128(a)(1) of the Social Security Act (Act).
The I.G. advised Petitioner that exclusions of individuals
convicted of program-related offenses are mandated by section
1128(a)(1) of the Act. The I.G. further advised Petitioner that
section 1128(c)(3)(B) of the Act requires a five-year minimum
period of exclusion.
Petitioner timely requested a hearing, and the case was assigned to
me for hearing and decision. Based on the record before me, I
conclude that Petitioner is subject to the mandatory exclusion
provisions of sections 1128(a)(1) and 1128(c)(3)(B) of the Act, and
that Petitioner's exclusion for a minimum of five years is mandated
by law.
PROCEDURAL BACKGROUND
During a September 7, 1993 prehearing conference, the parties
agreed to proceed in this case by submitting written arguments
supported by documentary evidence. Thereafter, the I.G. filed a
brief, proposed findings of fact and conclusions of law, and four
exhibits. Petitioner responded with a brief, proposed findings of
fact and conclusions of law, and one exhibit.
Petitioner subsequently requested leave to amend her proposed
findings of fact and conclusions of law. In the absence of
objection from the I.G., I allowed Petitioner to amend her proposed
findings of fact and conclusions of law. The I.G. filed a reply.
On March 22, 1994, I issued a Ruling in which I admitted into
evidence the four exhibits submitted by the I.G. (I.G. Ex. 1 - 4)
and the one exhibit submitted by Petitioner (P. Ex. 1). In
addition, I concluded that neither party had convinced me to grant
a judgment in their favor. I gave the I.G. an opportunity to
further develop the record and Petitioner an opportunity to
respond.
Thereafter, the I.G. filed a brief and three exhibits. These
exhibits consisted of written statements signed by three
individuals. In her responding brief, Petitioner argued that the
three written statements offered by the I.G. were legally deficient
because they were not sworn under penalty of perjury.
The I.G. replied by obtaining identical statements from the three
individuals, which were sworn under penalty of perjury, and moved
to substitute them for the previously submitted unsworn statements.
Petitioner opposed the I.G.'s motion to substitute on the grounds
that the substituted exhibits were untimely.
While Petitioner did not explicitly object to the written
statements initially submitted by the I.G. on the grounds that the
statements are not credible, her concern that the statements were
not sworn under penalty of perjury implicitly raised questions
about their credibility. In view of this, I offered Petitioner the
opportunity to test the credibility of these statements by
exercising her right to subpoena the declarants and to confront
them at an in-person hearing. By telephone on July 25, 1994,
counsel for Petitioner declined the offer for an in-person hearing
and stated that Petitioner wished to proceed on the basis of a
written record.
I subsequently issued a Ruling in which I granted the I.G.'s motion
to substitute on the grounds that Petitioner had not demonstrated
that allowing the I.G. to substitute the sworn statements for the
previously submitted unsworn statements would prejudice her right
to due process in this proceeding. I therefore admitted into
evidence I.G. Ex. 5 - 7, which accompanied Petitioner's motion to
substitute.
ISSUE
The issue before me in this case is whether Petitioner was
convicted of a criminal offense related to the delivery of an item
or service under Medicare or Medicaid within the meaning of section
1128(a)(1) of the Act.
FINDINGS OF FACT AND CONCLUSIONS OF LAW (FFCLs)
Uncontested FFCLs
The following are FFCLs to which Petitioner either admitted or
specifically declined to contest in her Amended Proposed Findings
of Fact and Conclusions of Law:
1. Petitioner worked as a certified nurse's aide at Sunny Knoll
Care Center, Rockwell City, Calhoun County, Iowa, on March 11, 12,
and 13, 1992. Petitioner's Amended Proposed Findings of Fact and
Conclusions of Law, paragraph 1.
2. B.D., a 93-year-old individual diagnosed with senile
dementia/Alzheimer type, was a resident of Sunny Knoll Care Center
on March 11, 12, and 13, 1992, and a Medicaid recipient. 2/
Petitioner's Amended Proposed Findings of Fact and Conclusions of
Law, paragraph 2.
3. Petitioner was responsible for providing care to B.D. on March
11, 12, and 13, 1992. Petitioner's Amended Proposed Findings of
Fact and Conclusions of Law, paragraph 2.
4. On August 13, 1992, Petitioner was charged with the crime of
theft in the fifth degree by taking control or possession of a
wedding ring belonging to B.D. and appropriating it to her own use
in violation of 1992 Code of Iowa, Section 714.2(5). Petitioner's
Amended Proposed Findings of Fact and Conclusions of Law, paragraph
1.
5. On August 24, 1992, Petitioner appeared in the District Court
of Iowa in and for Calhoun County, and pled guilty to the crime of
theft in the fifth degree. Petitioner's Amended Proposed Findings
of Fact and Conclusions of Law, paragraph 1.
6. On March 11, 12, and 13, 1992, B.D. was receiving items or
services which were reimbursed by the Iowa Medicaid program.
Petitioner's Amended Proposed Findings of Fact and Conclusions of
Law, paragraph 2.
7. Petitioner was convicted of a criminal offense. Petitioner's
Amended Proposed Findings of Fact and Conclusions of Law, paragraph
1.
8. The Secretary of DHHS delegated to the I.G. the authority to
determine, impose, and direct exclusions pursuant to section 1128
of the Act. Petitioner's Amended Proposed Findings of Fact and
Conclusions of Law, paragraph 1.
9. On May 10, 1993, the I.G. notified Petitioner of her
determination to exclude Petitioner for a period of five years, as
required by law. Petitioner's Amended Proposed Findings of Fact
and Conclusions of Law, paragraph 1.
10. Neither the I.G. nor an administrative law judge has the
discretion or authority to reduce the five-year minimum exclusion
mandated by section 1128(c)(3)(B) of the Act. Petitioner's Amended
Proposed Findings of Fact and Conclusions of Law, paragraph 1.
Other FFCLs
11. The offense which formed the basis of Petitioner's conviction
was committed sometime during the period from March 11 through
March 13, 1992. I.G. Ex. 2, 3; P. Ex. 1.
12. The court's acceptance of Petitioner's guilty plea is
demonstrated by the fact that, on August 24, 1992, it ordered
Petitioner to pay a $50 fine, a $15 surcharge, and $25 in costs.
I.G. Ex. 2.
13. The nurse's aide services Petitioner delivered to B.D. during
the period from March 11 through March 13, 1992, were covered
services reimbursed by Medicaid. FFCLs 1 - 3, 6; I.G. Ex. 1, 4- 7.
14. At the time that Petitioner committed the offense for which
she was convicted, she was engaged in the performance of duties
which were a part of the Medicaid-covered nurse's aide services she
provided directly to B.D. P. Ex. 1; FFCLs 1 - 13.
15. Petitioner was convicted of a criminal offense related to the
delivery of a service under Medicaid, within the meaning of section
1128(a)(1) of the Act.
FFCLs 1 - 14.
16. Petitioner may not utilize this administrative proceeding to
collaterally attack her criminal conviction by seeking to show that
there was no criminal intent.
17. The I.G. properly excluded Petitioner from participation in
Medicare and Medicaid for a period of five years, pursuant to
sections 1128(a)(1) and 1128(c)(3)(B) of the Act. FFCLs 1 - 16.
DISCUSSION
The Act mandates exclusion of:
Any individual or entity that has been convicted of a criminal
offense related to the delivery of an item or service under . . .
[Medicare] or under . . . [Medicaid].
Act, section 1128(a)(1).
The Act further requires that in the case of an exclusion imposed
and directed pursuant to section 1128(a)(1), the minimum term of
such exclusion "shall be not less than five years." Act, section
1128(c)(3)(B).
The I.G. asserts that Petitioner was convicted of a criminal
offense that falls within the meaning of section 1128(a)(1) of the
Act. The I.G. asserts therefore that Petitioner's exclusion was
mandatory, and that Petitioner must be excluded for at least five
years pursuant to section 1128(c)(3)(B).
In order for imposition of a five-year exclusion to be proper in
this case, the following two statutory criteria have to be met:
(1) Petitioner must be convicted of a criminal offense; and (2) the
criminal offense must be related to the delivery of an item or
service under Medicare or Medicaid.
I. Petitioner was convicted of a criminal offense.
The first criterion that must be satisfied in order to establish
that the I.G. had the authority to exclude Petitioner under
sections 1128(a)(1) and 1128(c)(3)(B) of the Act is that Petitioner
must have been convicted of a criminal offense. In this case, it
is undisputed that Petitioner was convicted of a criminal offense
within the meaning of the applicable provisions of section 1128 of
the Act.
Section 1128(i) of the Act defines when a person has been convicted
for purposes of an exclusion. That provision defines the term
"convicted" of a criminal offense to include those circumstances
"when a plea of guilty or nolo contendere by the individual or
entity has been accepted by a Federal, State or local court; . . ."
Act, section 1128(i)(3).
In the case at hand, the record establishes that the State of Iowa
charged Petitioner with the offense of committing theft in the
fifth degree. FFCL 4. Petitioner appeared in the District Court
of Iowa in and for Calhoun County and pled guilty to the charged
offense. FFCL 5. The court's acceptance of that plea is
demonstrated by the fact that, on August 24, 1992, it ordered
Petitioner to pay a $50 fine, a $15 surcharge, and $25 in costs.
FFCL 12. Petitioner admits that she was convicted of a criminal
offense. Petitioner's Amended Proposed Findings of Fact and
Conclusions of Law, paragraph 1; FFCL 7. In view of the
foregoing, I conclude that the undisputed facts establish that
Petitioner was convicted of a criminal offense within the meaning
of sections 1128(a)(1) and 1128(i) of the Act.
II. Petitioner was convicted of a criminal offense related to the
delivery of an item or service under Medicaid.
The second criterion that must be satisfied in order to find that
the I.G. had the authority to exclude Petitioner under sections
1128(a)(1) and 1128(c)(3)(B) is that the criminal offense in
question must be "program-related," i.e., related to the delivery
of an item or service under Medicare or Medicaid. Throughout this
proceeding, Petitioner has consistently maintained the position
that the criminal offense for which she was convicted was not
related to the delivery of an item or service under Medicare or
Medicaid.
The name of the criminal offense which formed the basis of
Petitioner's conviction is theft in the fifth degree. This offense
does not mention Medicare, Medicaid, or any other State health care
program, and on its face, there is no indication that it is related
to the delivery of an item or service under Medicare or Medicaid.
However, it is consistent with congressional intent for me to
examine the facts underlying Petitioner's conviction in order to
determine whether the statutory criteria of section 1128(a)(1) have
been satisfied. In construing the language "related to the
delivery of an item or service," the administrative law judge
stated in the case of H. Gene Blankenship:
The test of whether a `conviction' is `related to' Medicaid
must be a common sense determination based on all relevant facts as
determined by the finder of fact, not merely a narrow examination
of the language within the four corners of the final judgment and
order of the criminal trial court.
DAB CR42, at 11 (1989). Thus, the question before me here is
whether Petitioner's criminal offense is related to the delivery of
an item or service under Medicare or Medicaid, not whether
Petitioner was convicted under a criminal statute expressly
criminalizing fraud against Medicare or Medicaid.
A. At the time I issued my March 22, 1994 Ruling, the record
was insufficient to establish that Petitioner's criminal offense
was program-related.
In this case, the I.G. submitted with her initial motion for
summary disposition a statement of proposed findings of fact and
conclusions of law. Petitioner responded by either admitting or
explicitly declining to contest the following facts alleged by the
I.G. Petitioner worked as a certified nurses's aide at Sunny Knoll
Care Center, Rockwell City, Calhoun County, Iowa, on March 11, 12
and 13, 1992. B.D., a 93-year-old individual diagnosed with senile
dementia/Alzheimer type, was a resident of Sunny Knoll Care Center
on March 11, 12, and 13, 1992, and a Medicaid recipient.
Petitioner was responsible for providing care to B.D. on March 11,
12, and 13, 1992. On August 13, 1992, Petitioner was charged with
the crime of theft in the fifth degree by taking control or
possession of a wedding ring belonging to B.D. and appropriating it
to her own use in violation of 1992 Code of Iowa, Section 714.2(5).
On August 24, 1992, Petitioner appeared in the District Court of
Iowa in and for Calhoun County, and pled guilty to the crime of
theft in the fifth degree. On March 11, 12, and 13, 1992, B.D. was
receiving items or services which were reimbursed by the Iowa
Medicaid program. Petitioner was convicted of a criminal offense.
Petitioner's Amended Proposed Findings of Fact and Conclusions of
Law, paragraphs 1 and 2.
In addition, it is apparent from the court documents submitted by
the I.G. that the complaint to which Petitioner pled guilty alleged
that the offense occurred "on or about" March 11, 1992. I.G. Ex.
2, 3. In her affidavit, Petitioner asserts that she "found" B.D.'s
ring on March 12, 1992, and that she "forgot" to return it that day
and the following day. P. Ex. 1. Thus, it is undisputed that the
offense occurred some time during the period from March 11 through
March 13, 1992.
In my March 22, 1994 Ruling, I found that the record before me at
that time was insufficient to establish the requisite nexus between
Petitioner's criminal offense and the delivery of a Medicaid item
or service. I reaffirm my conclusion here.
The Act does not define what constitutes "related to the delivery
of an item or service" under Medicare or Medicaid. However, case
law precedent has recognized that the plain wording of the statute
requires some "nexus" or "common sense connection" between
the
offense of which a petitioner was convicted and the delivery of an
item or service under a covered program. Berton Siegel, D.O., DAB
1467 (1994). In drafting section 1128(a)(1), Congress required
that a person be excluded when convicted of an offense related to
the delivery of items or services under Medicare or Medicaid.
Therefore, the plain meaning of the statute requires finding a
nexus between a criminal offense and the delivery of a specifically
identifiable item or service under one or more covered programs.
The record before me at the time that I issued my March 22, 1994
Ruling failed to show such a nexus. The uncontested facts
established merely that the victim of the offense was a Medicaid
recipient and that she was receiving items or services which were
reimbursed by the Iowa Medicaid program on the date that the crime
occurred. The uncontested facts did not establish the specific
items or services which were reimbursed by the Iowa Medicaid
program on the date in question. The I.G. must show that there
exists some specifically identified item or service which relates
to Petitioner's offense. Absent such a showing, it is not possible
to determine whether the requisite nexus between the Medicaid items
or services and the criminal offense is present.
In my Ruling I found that the requisite nexus would exist if the
I.G. established that the nurse's aide services delivered to B.D.
by Petitioner during the period from March 11 through March 13,
1992 were covered services under Medicaid. I reaffirm my
conclusion here.
In Thelma Walley, DAB 1367 (1992), the petitioner was convicted of
the criminal offense of unlawfully destroying tangible property
belonging to other individuals. The petitioner in Walley was a
nurse who committed the criminal offense of destroying medication
belonging to patients at the facility where she worked. In its
decision, an appellate panel of the Departmental Appeals Board
discussed ways in which the I.G. could satisfy the requirement to
prove that the petitioner was convicted of a criminal offense
related to the delivery of an item or service under Medicaid. The
appellate panel stated that the requisite nexus would exist if the
I.G. proved that the nursing facility services received by these
patients on the date of the criminal offense, which services would
necessarily include the responsibility for the administration and
safekeeping of the medication, were covered services reimbursed by
Medicaid.
Although the facts of the present case are not on all fours with
the facts of Walley, the rationale used by the appellate panel in
deciding that case can be applied here. The common material
element in both Walley and this case is that, in both cases, the
criminal offense involved a violation of standards of professional
care.
In Walley, the appellate panel found that the duties of a nurse
included the responsibility for the administration and safekeeping
of medication. The expectation that a nurse will carry out this
duty responsibly is an integral element of the services a nurse
delivers. In Walley, the petitioner's criminal acts interfered
with the delivery of her nursing services. Therefore, the
appellate panel concluded that, if the I.G. proved that the nursing
services delivered by the petitioner were covered by Medicaid,
then the I.G. would satisfy the burden of proving that Petitioner
was convicted of a criminal offense related to the delivery of an
item or service under Medicaid.
In this case, Petitioner, a nurse's aide, was convicted of stealing
personal property of a patient under her care during the course of
the patient's stay at the facility where Petitioner worked. The
duties of a nurse's aide include the general care of the aide's
patients. Theft of personal belongings violates professional
standards of care expected of a nurse's aide. The expectation that
Petitioner would not steal personal property from patients under
her care was an integral element of the nurse's aide services she
provided to her patients. Petitioner's criminal offense interfered
with B.D.'s expectation that she could depend on Petitioner to
deliver her nurse's aide services consistent with professional
standards of care. Therefore, the I.G. had to prove that the
nurse's aide services delivered by Petitioner in this case were
covered by Medicaid in order to satisfy the requirement that
Petitioner be convicted of a criminal offense related to the
delivery of an item or service under Medicaid, within the meaning
of section 1128(a)(1) of the Act.
In my Ruling, I found that the I.G. had not established that B.D.'s
nurse's aide services were covered by Medicaid during the relevant
period. I stated that although the I.G. asserted in briefs that
Sunny Knoll Care Center was reimbursed by the Iowa Medicaid program
for the nurse's aide services rendered by Petitioner to B.D. during
the period from March 11 through 13, 1992, this assertion was not
supported by the record before me at that time. I noted that this
assertion was not included in the I.G.'s proposed findings of facts
and conclusions of law and therefore Petitioner had not either
admitted this assertion or explicitly declined to contest it. In
addition, while the I.G. cited I.G. Ex. 4 to support this
assertion, I found that this document was insufficient to establish
that the nurse's aide services Petitioner rendered to B.D. on the
date of the offense were covered by Medicaid, as the I.G.
contended.
I.G. Ex. 4 is a copy of a payment summary for B.D. covering the
period from March 1, 1992 through March 31, 1992. While the
payment summary appears to be a business record of the Iowa
Department of Human Services, it does not indicate that it is a
payment summary for Medicaid reimbursement. The payment summary
indicates that payments were made for items or services for the
period March 1, 1992 through March 31, 1992, but it does not
conclusively show the nature of items or services being reimbursed.
The payment summary refers to "Intermediate Care Billing Claim",
but it does not define what this term means. The payment summary
does not establish that the items or services being reimbursed
included the nurse's aide services delivered by Petitioner.
Nowhere in the payment summary or elsewhere in the record are the
various codes defined. 3/ The evidence is insufficient to show
whether the payment summary was in fact a Medicaid payment summary
or whether the nurse's aide services Petitioner rendered to B.D. on
the date of the offense were covered by Medicaid, as the I.G.
contends.
B. The I.G. brought forward sufficient evidence subsequent to
my March 22, 1994 Ruling to establish that Petitioner's criminal
offense is related to the delivery of a service under Medicaid.
Subsequent to my March 22, 1994 Ruling, the I.G. filed a brief and
additional documentary evidence. I have examined those exhibits,
and I now conclude that the I.G. has brought forward sufficient
evidence to establish that Petitioner's criminal offense was
related to the delivery of an item or service under Medicaid,
within the meaning of section 1128(a)(1) of the Act.
I.G. Ex. 5 is the declaration of Joyce Welch, a Systems Support
Worker III with the Iowa Department of Human Services. Ms. Welch
identifies I.G. Ex. 4 as a copy of Form AA-4163-0, a form she uses
to exchange information with nursing facilities on a monthly basis
regarding the number of days of care provided to Medicaid-eligible
patients. She states further that I.G. Ex. 4 is a copy of the Form
AA-4163-0 submitted by the Sunny Knoll Care Center for the month of
March 1992 for Medicaid patient B.D. Finally, Ms. Welch states
that, based on the information contained in the form, Medicaid paid
$908.24 to Sunny Knoll Care Center for 31 days of care provided to
B.D. during the month of March 1992.
I.G. Ex. 6 is the declaration of Kathleen Kellen, Institutional
Program Manager with the Iowa Department of Human Services, Bureau
of Institutional and Community-Based Services. Ms. Kellen states
that the Bureau of Institutional and Community-Based Services is
responsible for the administration of the Iowa Medicaid program as
it relates to participation of nursing facilities, including the
establishment of facility per diem rates. Ms. Kellen states that,
in March 1992, nurse's aide salaries were allowable costs for
purposes of Medicaid per diem rate calculation.
Ms. Kellen's assertion is corroborated by an excerpt from the Iowa
Department of Human Services Medicaid Provider Manual for Nursing
Facilities, attached to her declaration, which states:
A facility's per diem rate is intended to cover all normal
costs of operating a nursing care facility. Included are fixed
operating costs, building and medical equipment, salaries,
disposable supplies, and all services provided to residents.
According to Ms. Kellen, the general policies and procedures
described in the attachment were in effect in March 1992.
I.G. Ex. 7 is the declaration of Daniel T. Myers, the Chief
Financial Officer of the Boyle Company, Inc., which owns the Sunny
Knoll Care Center. Mr. Myers states that one of his employment
duties is to prepare the Financial and Statistical Reports (cost
reports) required by the Iowa Department of Human Services for
nursing facilities certified to participate in Medicaid. The
information contained in Schedule C of the cost report is used by
the State to compute the per diem rate which will be paid the
facility to cover the expenses of its Medicaid-eligible patients.
Attached to the affidavit of Mr. Myers is a copy of the cover sheet
and Schedule C of the cost report he prepared for the Sunny Knoll
Care Center for the period from January 1, 1992 through June 30,
1992. According to his affidavit, the amount listed on Line 42 of
the attached Schedule C represents the total amount paid by Sunny
Knoll Care Center for nurse's aide compensation during that period.
Mr. Myers stated that wages paid to Petitioner for her nurse's aide
services performed during the period from March 11 through 13, 1992
were included in Schedule C, Line 42 of the cost report and were
used by the Iowa Department of Human Services to compute the per
diem rate for services to Medicaid-eligible patients.
I am satisfied that the record now shows that the nurse's aide
services Petitioner delivered to B.D. during the period from March
11 through 13, 1992 were covered services reimbursed by Medicaid.
Ms. Welch, the declarant in I.G. Ex. 5, is an employee of the Iowa
Department of Human Services, with an expertise in matters relating
to Medicaid reimbursement. Her declaration conclusively
establishes that I.G. Ex. 4 is a payment summary for Medicaid
reimbursement. Her declaration establishes also that I.G. Ex. 4
shows that the Iowa Medicaid program paid $908.24 to Sunny Knoll
Care Center for 31 days of care provided to patient B.D. during the
month of March 1992.
I.G. Ex. 6 and I.G. Ex. 7 contain persuasive evidence as to how the
$908.24 figure was calculated and what services it covered. Ms.
Kellen, a State Medicaid program official, stated in her
declaration that nurse's aide salaries are allowable costs for
purposes of Medicaid per diem rate calculation. This evidence is
persuasive because Ms. Kellen has expertise in establishing
facility per diem rates and her declaration is corroborated by
excerpts from a Medicaid program manual. Mr. Myers, the Chief
Financial Officer of the company that owns Sunny Knoll Care Center,
provided persuasive evidence showing that the nurse's aide services
delivered by Petitioner during the period from March 11 through 13,
1992 were used to calculate the per diem rate charged to Medicaid.
Petitioner has not raised a meaningful doubt that the information
provided in I.G. Ex. 5 - 7 is unreliable or erroneous. The I.G.
has satisfied me that the nurse's aide services received by B.D.
during the relevant period were services covered by Medicaid and,
thus, the offenses were related to the delivery of an item or
service under Medicaid.
Petitioner argues that I.G. Ex. 4 is merely the bill submitted by
Sunny Knoll Care Center for services provided to B.D. She argues
that the I.G. has not shown that her nurse's aide services were
"under" Medicaid because the I.G. has not proven that Medicaid paid
for any of the billed services. Petitioner's argument is without
merit.
Petitioner admitted in her statement of facts that on March 11, 12,
and 13, 1992, B.D. was receiving items or services which were
reimbursed by the Iowa Medicaid program. The declaration submitted
by Joyce Welch establishes that I.G. Ex. 4 is the form used by the
Iowa Medicaid program to ascertain the number of days of care which
are provided to Medicaid-eligible patients. Ms. Welch attests
that, based on the information contained in I.G. Ex 4, Medicaid
paid Sunny Knoll Care Center for the care provided to B.D. during
the relevant period. Petitioner has not brought forward any
evidence to rebut this assertion. In the absence of evidence
showing that Medicaid rejected Sunny Knoll's claim for services and
refused to pay for the billed services, I find that the
preponderance of the evidence establishes that the nurse's aide
services were covered services which were reimbursed by Medicaid.
Petitioner argues that she should not be subject to an exclusion
under section 1128(a)(1) because she did not intend to engage in
criminal activity. In a declaration submitted by Petitioner, she
avers that she found B.D.'s ring in a box of vinyl gloves. She
states that just after she returned from her break on the morning
of March 12, 1992, she was filling her cart with supplies such as
sheets, gown, gloves, pads, and pillows. When she stuck her hand
in the box to grab some gloves, B.D.'s ring fell out. Petitioner
states that she put the ring in her pocket, fully intending to take
it to the nurse's station so that it could be returned to its
owner. According to Petitioner, she forgot about the ring until
she went home. That night, she found the ring in her pocket and
put it on her finger to remind herself to turn it in the next day.
When she returned to work the next day, she did not think about the
ring and again forgot to turn it in at the nurse's station.
Petitioner states that she did not intend to steal the ring, but
that she pled guilty to the charge of theft because it would take
too many resources to fight the charge. P. Ex. 1.
Petitioner's argument is without merit. Even assuming that
Petitioner's assertion that she did not intend to steal B.D.'s ring
is true, it is not relevant to the issue of whether the I.G. has
the authority to exclude her in this case. Section 1128(a)(1) does
not require that the individual must intend to commit a criminal
offense for an exclusion to be proper. It merely requires that the
individual's acts cause the individual to be convicted of an
offense and that the offense be related to the delivery of an item
or service under Medicaid. The underlying conduct behind the
conviction, except for the limited purpose of establishing the
"related to" requirement of the statute, is not relevant in
considering whether the I.G. had authority to exclude an individual
pursuant to section 1128(a)(1). The conviction, and not the
underlying conduct, is the triggering event which requires the I.G.
to impose and direct an exclusion. It is well settled that proof
that an appropriate criminal conviction has occurred ends the
inquiry as to whether mandatory exclusion is called for under
section 1128(a)(1); the intent or state of mind of the individual
committing the crime is not relevant. DeWayne Franzen, DAB 1165
(1990).
Petitioner argues also that her criminal offense was not related to
the delivery of an item or service under Medicaid because she "was
in the hallway and not providing services to any individual patient
at the time she discovered the ring." Petitioner's Response to the
I.G.'s Motion for Summary Disposition at p. 3. Petitioner points
out also that evidence adduced by the I.G. fails to establish that
she provided any nurse's aide services directly to B.D. on March
12, 1992, the date on which Petitioner states that the criminal
offense occurred. Petitioner's Memorandum in Support of Resistance
to the I.G.'s Renewed Motion for Summary Disposition at pp. 1 - 2.
Petitioner appears to be arguing that the statutory requirement
that the criminal offense must "relate" to the delivery of a
Medicaid item or service encompasses only those situations where
there is direct interaction between the convicted individual and
the recipient of a Medicaid item or service at the time that the
offense occurred. I disagree.
The language of the statute does not support the theory that, to be
excluded under section 1128(a)(1), the convicted individual must
have had direct interaction with the recipient of a Medicaid item
or service at the time that the offense occurred. The phrase
"related to" is broad language and suggests that Congress required
only a minimal nexus between the offense and the delivery of an
item or service as a prerequisite to meeting the statutory test.
Congress' use of the phrase "related to" indicates that section
1128(a)(1) must be read as covering more than those instances where
a criminal offense is committed at the time that the convicted
individual is in direct contact with the Medicaid recipient.
Indeed, the implementing regulation at 42 C.F.R. 1001.101(a)
supports this conclusion. That regulation interprets an offense
related to the delivery of a Medicaid item or service as "including
the performance of management or administrative services relating
to the delivery of items or services" under Medicaid.
The record contains an investigative report of the Iowa Medicaid
Fraud Control Bureau which states that Petitioner worked as a
certified nurse's aide at Sunny Knoll Care Center on March 11, 12,
and 13, 1992. In addition, the investigative report specifically
states that Petitioner provided care to B.D. on March 11 and March
13, 1992. I.G. Ex. 1. While this report does not specifically
state that Petitioner had direct interaction with B.D. on March 12,
1992, in her statement of facts Petitioner specifically declined to
contest that she was responsible for providing care to B.D. on that
date. Petitioner's Amended Proposed Findings of Fact and
Conclusions of Law, paragraph 2.
For purposes of this decision, I accept as true Petitioner's
assertion that she found B.D.'s ring in a box of vinyl gloves while
she was filling her cart with supplies. This does not, however,
derogate from my conclusion that Petitioner's offense was related
to the delivery of a Medicaid service. A finding that Petitioner
was in direct contact with a Medicaid recipient at the time that
the offense occurred is not an essential element of my decision.
What is important is that, at the time of the offense, Petitioner
was engaged in the performance of duties which were part of the
Medicaid-covered nurse's aide services she provided directly to
B.D. Filling a cart with supplies is part of the complex of duties
which Petitioner was required to perform in the course of
delivering nurse's aide services to B.D. The fact that Petitioner
was not engaged in direct interaction with B.D. at the time she
committed the criminal offense does not insulate Petitioner from
the reach of section 1128(a)(1) of the Act.
The impact of Petitioner's theft on the delivery of Medicaid
services is not tangential or ephemeral. The purpose of the
exclusion law is to protect Medicare beneficiaries and Medicaid
recipients from "incompetent practitioners and from inappropriate
or inadequate care." S. Rep. 109, 100th Cong., 1st Sess. 2 (1987);
reprinted in 1987 U.S.C.C.A.N. 682. The relationship between
caregivers and patients is inherently a dependency relationship.
In this case, B.D. was a 93-year-old individual diagnosed with
senile dementia/Alzheimer type. She depended on her caregivers to
provide the care that she needed, free from the threat of being
victimized by crimes against her. Petitioner was convicted of
perpetrating a crime against B.D. in the course of providing her
nurse's aide services. Petitioner's offense involved conduct which
had a direct effect on the quality of the Medicaid services which
she delivered and it encompassed the "inappropriate" care which the
exclusion law was intended to protect against. Under these
circumstances, Petitioner's argument (that the theft of which she
was convicted was unrelated to the delivery of her nurse's aide
services because it occurred while she was filling her cart rather
than while she was interacting with B.D.) is without merit.
III. A five-year exclusion is required in this case.
Sections 1128(a)(1) and 1128(c)(3)(B) of the Act require the I.G.
to exclude individuals and entities from Medicare and Medicaid for
a minimum period of five years, when such individuals have been
convicted of a criminal offense related to the delivery of an item
or service under Medicare or Medicaid, within the meaning of
section 1128(a)(1) of the Act.
Since Petitioner was convicted of a criminal offense and it was
related to the delivery of an item or service under Medicaid,
within the meaning of sections 1128(a)(1) and (i) of the Act, the
I.G. was required by section 1128(c)(3)(B) of the Act to exclude
Petitioner for a minimum of five years. Neither the I.G. nor an
administrative law judge has discretion to reduce the mandatory
minimum five-year period of exclusion.
CONCLUSION
Based on the evidence and the law, I conclude that Petitioner was
convicted of a criminal offense related to the delivery of an item
or service under Medicaid, within the meaning of section 1128(a)(1)
of the Act. The five
year exclusion which the I.G. imposed and directed against
Petitioner was mandated by law. Therefore, I sustain the
exclusion.
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. I do not disclose the name of this individual, so as to
respect her privacy.
3. In Thelma Walley, the appellate panel found similar
deficiencies with regard to payment statements provided by the I.G.
to support the assertion that the petitioner in that case was
convicted of a criminal offense related to the delivery of an item
or service under Medicaid. Thelma Walley, DAB 1367, at 10 - 11.
The appellate panel stated that the payment statements were
deficient for the additional reason that they did not conclusively
show whether the payments covered items or services rendered on the
day the offense was committed. In this case, however, the payment
summary explicitly indicated that the payment covered services
rendered on each of the 31 days during the period from March 1,
1992 through March 31, 1992.