Date: 1999 March 26

The Inspector General.

By letter dated July 31, 1998, Gabriel S. Orzame, M.D., (Petitioner), was notified by the Inspector General (I.G.), U.S. Department of Health and Human Services (HHS), that Petitioner had been excluded for a period of five years from participation in the Medicare, Medicaid, and all federal health care programs as defined in section 1128B(f) of the Social Security Act (Act) (Medicare and Medicaid). 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 in the State of Michigan, County of Berrien, Fifth District Court of a criminal offense relating to the 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. Because I have determined that there are no material and relevant factual issues in dispute (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.

The I.G. submitted a written brief in support of its motion for summary disposition and five proposed exhibits, which I have numbered I.G. Exs. 1-5. Petitioner objected to proposed I.G. Exs. 3 and 4 to the extent that the I.G. "claims said documents prove Petitioner pleaded to an offense relating to abuse or neglect of patients . . . ." As I find such proposed exhibits relevant, I admit I.G. Exs. 1-5 into evidence.

Petitioner submitted a brief in opposition to the I.G.'s motion for summary disposition and in support of its cross-motion for summary disposition. Petitioner also submitted two proposed exhibits, which I have numbered P. Exs. 1 and 2. The I.G. did not object to these proposed exhibits and I accept into evidence Petitioner Exs. 1 and 2.

I grant the I.G.'s motion for summary disposition. Further, I affirm the I.G.'s determination to exclude Petitioner from participation in the Medicare and Medicaid programs for a period of five years.

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 five years.

Petitioner contends that his conviction for "recklessly placing inaccurate information in a medical record" does not constitute abuse or neglect as those terms are used in section 1128(a)(2) of the Act. He contends that case law does not show that his misconduct rises to that level. He also asserts that the individual whom Petitioner's alleged criminal activity involved was not a patient but was an undercover policeman who feigned illness. Finally, Petitioner asserts that his conviction does not relate to a health care item or service as "there is no proof that the service (temperature and blood pressure) claimed to have been provided was listed in an itemized claim for payment." Petitioner brief at 11.

1. At all times relevant herein, Petitioner was a physician licensed to practice in the State of Michigan. I.G. Ex. 1.

2. A criminal information was filed by the Attorney General's Office for the State of Michigan charging that Petitioner recklessly placed misleading information regarding a patient's diagnosis, treatment, or cause of condition in a patient record in violation of Mich. Comp. Laws Ann. section 750.492a(1)(b) in that Petitioner recklessly placed inaccurate information regarding patient J.W.'s temperature and blood pressure in his medical record. I.G. Exs. 1 and 5.

3. On January 20, 1998, Petitioner pled nolo contendere in the State of Michigan District Court to one count of "Reckless Falsification of a Medical Record" in violation of Mich. Comp. Laws. Ann. section 750.492a(1)(b). I.G. Ex. 4.

4. On January 20, 1998, the court adjudged Petitioner guilty of the offense pursuant to his plea. I.G. Ex. 4.

5. On January 20, 1998, the court ordered Petitioner to pay fines and court costs totaling $3060. I.G. Ex. 4.

6. On July 31, 1998, the I.G. notified Petitioner that he was being excluded from participation in the Medicare and Medicaid programs for a period of five years pursuant to sections 1128(a)(2) and 1128(c)(3)(B) of the Act.

7. Petitioner's nolo contendere plea constitutes a conviction within the meaning of section 1128(i)(3) of the Act.

8. Petitioner's conviction for "Reckless Falsification of a Medical Record" is for an offense relating 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.

9. The mandatory minimum period of exclusion pursuant to sections 1128(a)(2) and 1128(c)(3)(B) of the Act is five years.

10. The Secretary has delegated to the I.G. the duty to determine and impose exclusions pursuant to section 1128(a)(2) of the Act.

11. The I.G. properly excluded Petitioner from participation in the Medicare and Medicaid programs for a period of five years, pursuant to sections 1128(a)(2) and 1128(c)(3)(B) of the Act.

12. Neither the I.G. nor the administrative law judge (ALJ) has the authority to reduce the five-year minimum exclusion mandated by sections 1128(a)(2) and 1128(c)(3)(B) of the Act.

In order to justify excluding an individual from the Medicare and Medicaid programs pursuant to section 1128(a)(2) of the Act, the I.G. must prove that: (1) the individual charged has been convicted of a criminal offense; (2) the conviction is related to the neglect or abuse of patients; and (3) 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.

The first criterion that must be satisfied in order to establish that the I.G. has the authority to exclude Petitioner under section 1128(a)(2) of the Act is that Petitioner must have been convicted of a criminal offense. The term "convicted" is defined in section 1128(i) of the Act. This section provides that an individual or entity will be convicted of a criminal offense:

(1) when a judgment of conviction has been entered against the individual or entity by a Federal, State, or local court, regardless of whether there is an appeal pending or whether the judgment of conviction or other record relating to criminal conduct has been expunged;

(2) when there has been a finding of guilt against the individual or entity by a Federal, State, or local court;

(3) when a plea of guilty or nolo contendere by the individual or entity has been accepted by a Federal, State, or local court; or

(4) when the individual or entity has entered into participation in a first offender, deferred adjudication, or other arrangement or program where judgment of conviction has been withheld.

This section thus establishes four alternative definitions of the term "convicted." An individual or an entity need satisfy only one of the four definitions under section 1128(i) to establish that the individual or entity has been convicted of a criminal offense within the meaning of the Act.

In the present case, I find that Petitioner was "convicted" of a criminal offense within the meaning of section 1128(i)(3) of the Act. The record reflects that Petitioner pled nolo contendere. The court then accepted Petitioner's guilty plea and sentenced him. Petitioner was therefore "convicted" of a criminal offense within the meaning of section 1128(i)(3) of the Act. Carlos E. Zamora, M.D., DAB CR22 (1989), aff'd, DAB No. 1104 (1989); Anthony Tommasiello, DAB CR282 (1993).

I further find that Petitioner's conviction was related to the abuse or neglect of a patient within the meaning of section 1128(a)(2) of the Act. Petitioner contends that his conviction for "Reckless Falsification of a Medical Record" does not constitute neglect or abuse within the meaning of the Act. In my review, I find that it is appropriate and warranted to include Petitioner's misconduct within the meaning of the Act. In determining whether an exclusion is appropriate under this section, an ALJ may look beyond the charge for which an individual was convicted to the underlying circumstances. Norman C. Barber, D.D.S., DAB CR123 (1991). Because the terms "neglect" and "abuse" are not defined in section 1128(a)(2), ALJs have determined that they should be given their ordinary and common meaning. Neglect includes "failure by a party to satisfy a duty of care to another person. 'Abuse' is intended to include those situations where a party willfully mistreats another person." Rosette Elliott, DAB CR84 (1990). I find that Petitioner's misconduct falls within the common and ordinary meaning of the terms "neglect" and "abuse." Rosette Elliott, supra.

The record in Petitioner's case establishes that he recklessly entered inaccurate information regarding blood pressure and temperature in patient J.W.'s medical records.⁽¹⁾ Petitioner's misconduct reflects a significant deviation from the standard of care he owed to his patient and is serious misconduct. See Frank S. Horng, M.D., DAB CR410 (1996). In Horng, the ALJ discussed the risk that altered medical records pose to the safe treatment of patients stating "a physician who relies on an altered record to make a medical judgment about how to treat a patient risks harming the patient." Id. at 17. The ALJ further states that altered medical records can have a negative impact on a patient "because that patient may be harmed by incorrect treatments ordered on the basis of the altered record." Id. The necessity for accurate and precise documentation of information relating to patient treatment is further highlighted in the case of Sunil R. Lahiri, M.D., DAB CR348 (1994), a decision in which the exclusion of a doctor was upheld for reasons which included his failure to maintain accurate documentation of patient treatment. In Lahiri, the ALJ stresses the importance of accurate documentation in assuring the continuity of care provided a patient. Consequently, Petitioner's situation must be viewed within this context. Improper information in this patient's record could lead to a number of negative outcomes beginning with the wrong medication and ending in physical harm, which clearly relates to abuse or neglect within the meaning of section 1128(a)(2) of the Act. As a result, I find that Petitioner, by his misconduct, needlessly subjected J.W. to potential risks, and Petitioner failed to meet his duty of care.

In his defense, Petitioner asserts that patient J.W. was not a "patient" but was an undercover policeman who feigned illness and did not warrant medical treatment. I note that the statute under which Petitioner was convicted describes as a "patient" the individual to whom the health care provider breached the standard of care. The individual's representation to Petitioner is irrelevant when the issue is physician misconduct. As far as Petitioner knew, J.W. was simply another patient in need of care. Moreover, insofar as this relationship is an element of the statutory offense, Petitioner's claim amounts to a collateral attack on his conviction, which the DAB has previously held to be an ineffectual argument in the context of an exclusion appeal, as the I.G. and the ALJ are not permitted to look beyond the fact of conviction. Paul R. Scollo, D.P.M., DAB CR300 (1994), aff'd, DAB No. 1498 (1994); Ernest Valle, DAB CR309 (1994); Peter J. Edmonson, DAB CR163 (1991), aff'd, DAB No. 1330(1992).

I also find that Petitioner's abuse of a patient occurred in connection with the delivery of a health care item or service. The broad terminology of section 1128(a)(2) has been interpreted to suggest that Congress intended to allow even a minimal nexus between the offense and the delivery of a health care item or service to satisfy the statutory test. Anthony W. Underhill, DAB CR231 (1992). Petitioner's situation as a physician providing medical services to patients is clearly within the meaning of the Act. While Petitioner asserts that the definition of a health care item or service requires that an itemized claim for payment must be made, Petitioner's assertion is without merit. Petitioner's claim for payment is irrelevant in this case. Instead, the issue in this case is abuse or neglect to a patient in connection with the delivery of a health care item or service.

A five-year exclusion under section 1128(a)(2) of the Act is mandatory when a petitioner 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. Aida Cantu, DAB CR462 (1997); Peter J. Edmonson, supra. In this case, Petitioner has been convicted within the meaning of section 1128(i)(3) of the Act of a criminal offense involving the neglect or abuse of a patient in relation to the delivery of a health care item or service. Therefore, the I.G. is required to exclude Petitioner for at least five years. Neither the I.G. nor the ALJ is authorized to reduce a five-year mandatory period of exclusion. Jack W. Greene, DAB CR19, aff'd, DAB No. 1078 (1989) aff'd sub nom, Greene v. Sullivan, 731 F. Supp. 835 (E.D. Tenn. 1990).

Sections 1128(a)(2) and 1128(c)(3)(B) of the Act mandate that Petitioner 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. The five-year exclusion is therefore sustained.