Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD
Civil Remedies Division
In the Case of: Aida Cantu, Petitioner,
- v. -
The Inspector General.
DATE: February 24, 1997
Docket No. C-96-204
Decision No. CR462
DECISION
By letter dated June 28, 1995, Aida Cantu, the Petitioner
herein, was notified by the Inspector General (I.G.), U.S.
Department of Health and Human Services (HHS), that it had
been decided to exclude her 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. explained that the
five-year exclusion was mandatory under 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 request for review of the I.G.'s action.
The I.G. moved for summary disposition. 2/
Because I have determined that there are no material and
relevant factual issues in dispute and the only matter to be
decided is the legal significance of the undisputed facts, I
have decided the case on the basis of the parties' written
submissions in lieu of an in-person hearing. I grant the
I.G.'s motion for summary disposition.
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.
PETITIONER'S ARGUMENT
Petitioner asserts that, although a nurse's aide had reported
to her witnessing an elderly patient being pushed by another
employee and had also stated that she had noticed old bruises
on the patient, Petitioner herself did not see any bruises or
other signs of abuse when checking on this patient.
Consequently, Petitioner did not believe that she had any
proof or reasonable cause for acting on this information.
Petitioner contends further that she checked the patient a
week later and saw faded bruises. Because she did not
believe these bruises related to the incident reported by the
nurse aide, she did not report them. Petitioner maintains
also that she was not advised at the time she entered her
guilty plea that she could be excluded from participation in
the Medicare and Medicaid programs under section 1128(a)(2)
of the Act as a consequence of such plea.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
1. At all times relevant herein, Petitioner was a licensed
vocational nurse at a Medicaid certified nursing facility,
Harlingen Good Samaritan Center, in Harlingen, Texas. P. Ex.
1. 3/
2. On June 12, 1993, a criminal information was filed
against Petitioner by the State of Texas charging her with
one count of failure to report abuse and neglect of a patient
(M.C.), in violation of Texas Health & Safety Code Ann. Art.
242.131, a misdemeanor. I.G. Exs. 1, 6. 4/
3. The criminal information alleged that Petitioner
knowingly failed to report that M.C., a resident of the
Harlingen Good Samaritan Center, was physically abused or
neglected and that Petitioner had reason to know of this.
I.G. Ex. 1.
4. Petitioner waived her right to a jury trial and pled
guilty in open court to the offense which gave rise to the
criminal information. I.G. Exs. 2, 3.
5. On November 30, 1994, the Texas State court deferred
adjudication of guilt, placed Petitioner on probation for
ninety days, and fined her $400.00. I.G. Ex. 3.
6. On November 21, 1995, the Texas State court entered an
order setting aside the conviction and dismissing the charge
of failure to report abuse and neglect against Petitioner.
I.G. Ex. 4.
7. Petitioner's guilty plea, which was accepted by the State
court, falls within the definition of "convicted of a
criminal offense" listed in section 1128(i)(3) of the Act.
8. The deferred adjudication arrangement Petitioner entered
into with the court falls within the definition of "convicted
of a criminal offense" listed in section 1128(i)(4) of the
Act.
9. The fact that the court set aside Petitioner's conviction
and dismissed the charge does not affect Petitioner's
conviction.
10. Petitioner's criminal conviction for failure to report
the alleged abuse at issue was an offense relating to 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.
11. Under section 1128(a)(2) of the Act, the fact that a
conviction within the meaning of section 1128(i) has occurred
mandates exclusion and an administrative law judge is not
authorized to look behind the conviction.
12. The five-year exclusion imposed and directed against
Petitioner by the I.G. is for the minimum period required by
the Act.
13. Neither the I.G. nor an administrative law judge is
authorized to reduce the length of a mandatory five-year
period of exclusion.
14. 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.
DISCUSSION
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's 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.
I find that the facts show that Petitioner was convicted of a
criminal offense within the meaning of sections 1128(a)(2)
and 1128(i) of the Act. Petitioner pled guilty to the
offense of failure to report abuse and neglect and the State
court accepted her plea. Moreover, the term "convicted of a
criminal offense" includes also those circumstances in which
the individual enters into a deferred adjudication
arrangement with the court. Here, the Texas State court
deferred adjudication of Petitioner's guilt, placed her on
probation, and assessed a fine. The fact that the court, on
November 21, 1995, set aside Petitioner's conviction and
dismissed the charge does not affect Petitioner's conviction.
There is nothing in the Act that prohibits the I.G. from
excluding a Petitioner after a case has been dismissed
following a deferred adjudication. For the purposes of the
Act, it is the fact of the conviction itself that gives the
I.G. the authority to exclude. Here, Petitioner has been
convicted within the meaning of sections 1128(i)(3) and (4)
of the Act. Accordingly, I find that Petitioner was
convicted within the meaning of the Act.
Although Petitioner is not alleged to have abused anyone, the
State of Texas 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. As
an employee at the Harlingen Good Samaritan Center,
Petitioner had a duty to maintain the health, safety, and
well-being of patients at that facility. Petitioner's
failure to report the alleged abuse in this case constituted
an act of "neglect" within the meaning of section 1128(a)(2)
of the Act. Petitioner thus breached her duty of care to a
patient (M.C.) of that Center, 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). 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).
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 employee who
under State law had a duty to report incidents of suspected
abuse or neglect which may have adversely affected a
Harlingen Good Samaritan Center patient's well-being.
Therefore, I conclude that Petitioner's failure to report the
alleged abuse directly related to the duty of care she owed
to that patient and occurred in connection with the delivery
of a health care item or service within the meaning of
section 1128(a)(2). See Vicky L. Tennant, R.N., DAB CR134
(1991).
In her defense, Petitioner asserts that, since she did not
personally observe the alleged abuse, and did not have any
proof or "reasonable cause" to pass along the information she
had been given, she is not culpable. Petitioner contends
also that her criminal proceeding was unfair because she was
not advised that her guilty plea might subject her to
exclusion under section 1128(a)(2) of the Act. Once it is
determined, however, that a conviction relating to the abuse
or neglect of a patient has occurred, exclusion is mandatory
under section 1128(a)(2) of the Act as a purely derivative
action. The I.G. is not permitted to look beyond the fact of
conviction. Peter J. Edmonson, DAB CR163 (1991), aff'd, DAB
1330 (1992). The intent of the individual committing the
offense is not relevant under section 1128(a). DeWayne
Franzen, DAB CR58 (1989), aff'd, DAB 1165 (1990). Assertions
by a petitioner that he or she is actually innocent, that his
or her trial was unfair, or that the statutory five-year
minimum mandatory exclusion specified in section 1128(a)
should be modified because of mitigating circumstances cannot
be addressed in this forum. Edmonson, DAB 1330 at 4-5; Janet
Wallace, L.P.N., DAB CR155 (1991), aff'd, DAB 1326 (1992);
Richard G. Philips, D.P.M., DAB CR133 (1991), aff'd, DAB 1279
(1991). Mitigating factors are not relevant unless the I.G.
relies upon aggravating factors to exclude a petitioner for
more than five years. 42 U.S.C. § 1001.102(c). The
Petitioner was excluded for only the minimum period, with no
aggravating factors cited. Thus in the case at hand, I am
without authority to consider Petitioner's assertions that
she is innocent and that the criminal proceedings were
unfair.
CONCLUSION
Sections 1128(a)(2) and 1128(c)(3)(B) of the Act mandate that
Petitioner herein be excluded from the Medicare and Medicaid
programs for a period of at least five years because she 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. The five-year exclusion is therefore
sustained.
________________________
Joseph K. Riotto
Administrative Law Judge
* * * Footnotes * * *
1. In this decision, I use the term "Medicaid" to
refer to these State health care programs.
2. Petitioner's hearing request is dated April
15, 1996. In her hearing request, Petitioner states that she
never received the I.G.'s notice. In her brief, the I.G. did
not challenge Petitioner's statement and neither party
addressed the issue of timeliness in their briefs. For this
reason, and also because I find for the I.G. on the merits, I
make no findings as to whether Petitioner's request for
hearing is timely or untimely.
3. In this case, Petitioner submitted a letter
brief, with attached documents. I refer to Petitioner's
letter brief as "P. Brief." I have marked Petitioner's
documents collectively as "P. Ex. 1." The I.G. submitted a
brief, five exhibits (I.G. Exs. 1-5), and one attachment to
her brief. I refer to the I.G.'s brief as "I.G. Brief." I
have marked the attachment as "I.G. Ex. 6." Neither party
has objected to the other party's exhibits. In the absence
of objection, I admit both parties' exhibits into evidence.
4. To protect the identity of the nursing home
resident, I am using the resident's initials.