Decision No. CR651 |
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IN THE CASE OF | ||||
Odessa Moore, |
DATE: March 1, 2000 | |||
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The
Inspector General
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Docket No.C-99-759 | |||
DECISION | ||||
This case is before me pursuant to an undated request for hearing filed by Odessa Moore (Petitioner), which was received by the Civil Remedies Division of the Departmental Appeals Board (DAB) on September 14, 1999. By letter dated July 30, 1999, the Inspector General (I.G.) notified
Petitioner that she was being excluded from participation in the Medicare,
Medicaid, and all federal health care programs, as defined in section
1128B(f) of the Social Security Act (Act), for a period of five years,
the minimum mandatory period of exclusion under the Act. The I.G. then
informed Petitioner that the I.G. had excluded her under section 1128(a)(2)
of the Act, due to her conviction in the Municipal Court of Grenada, Mississippi,
of a criminal offense related to abuse or neglect of patients in connection
with the delivery of a health care item or service. Additionally, the
I.G. informed her that no payment would be made to any entity in which
she served as an employee or in any other capacity for any services performed
by her. I held a telephone prehearing conference in this case on November 9, 1999. During the conference, I advised Petitioner of her right to representation. Petitioner elected to appear on her own behalf. Also during the conference, the parties agreed that this matter could be decided based on written arguments and documentary evidence and that an in-person evidentiary hearing was unnecessary. Each party has made a written submission in support of their contentions. Additionally, the I.G. submitted seven proposed exhibits. These have been identified as I.G. Exhibits (I.G. Exs) 1-7. Petitioner offered no documentary evidence.
In the absence of objection, I am admitting into evidence I.G. Exs. 1-7. Based on the documentary evidence, the applicable law and regulations,
and the arguments of the parties, it is my decision to sustain the determination
of the I.G. to exclude Petitioner from participating in the Medicare,
Medicaid, and all federal health care programs, for a period of five years.
I find that Petitioner was convicted under State law of a criminal offense
relating to neglect or abuse of patients in connection with the delivery
of a health care item or service. Additionally, I find that the five-year
exclusion imposed by the I.G. is the minimum period of exclusion mandated
by law. Thus, I am unable to consider whether the length of Petitioner's
exclusion is unreasonable.
Whether the I.G. had a basis upon which to exclude Petitioner from participation
in the Medicare, Medicaid, and all federal health care programs.
Section 1128(a)(2) of the Act authorizes the Secretary of the Department
of Health and Human Services (Secretary) to exclude from participation
in Medicare, Medicaid, and all federal health care program [as defined
in section 1128B(f) of the Act], any individual convicted under federal
or State law, of a criminal offense relating to neglect or abuse of patients
in connection with the delivery of a health care item or service. Any exclusion under section 1128(a)(2) of the Act must be for a minimum
period of five years. Act, section 1128(c)(3)(B); 42 C.F.R. � 1001.102(a). Pursuant to 42 C.F.R. � 1001.2007, a person excluded under section 1128(a)(2) of the Act may file a request for hearing before an administrative law judge (ALJ).
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FINDINGS OF FACT AND CONCLUSIONS OF LAW | ||||
Petitioner was a nurse's assistant(1)
employed by the Grenada Lake Medical Center on October 27, 1998, although
she was off duty at the time of the incident in question. I.G. Exs. 6,
7. On that day, she was observed hitting a 79-year old patient in that
medical facility in the face with her hand. I.G. Exs. 4, 6. For this,
she was indicted on April 22, 1999, of abuse of a vulnerable adult. I.G.
Exs. 2, 7. On May 25, 1999, she was convicted of one count of misdemeanor
abuse of a 79-year old patient. I.G. Exs. 2, 7. Petitioner was sentenced
to six months in jail, suspended, two years, unsupervised probation, fined
$1,000, and assessed court costs. Id. An investigative report in
the case indicates that Petitioner's assault occurred in the process of
forcing medication on the victim. I.G. Ex. 6. That Petitioner was off duty at the time of the assault does not diminish
the fact that she is an "individual convicted under Federal or State law,
of a criminal offense relating to neglect or abuse of patients in connection
with the delivery of a health care item or service." Act, section 1128(a)(2).
The essential elements for mandatory exclusion are the existence of a
conviction for neglect or abuse of a patient and that such neglect or
abuse occur in connection with the delivery of a health care item or service.
These elements are present in this case. Specifically, Petitioner has
been convicted (in the Municipal Court of Grenada, Mississippi) of committing
abuse by hitting a 79-year old patient in the face, which abuse was in
the process of delivering a health care item or service to this patient,
i.e., trying to get the patient to take medication.(2)
In her hearing request and written submission, Petitioner asserts that
she was treated unfairly because she did not mistreat anyone. Her conviction
came about, she stated, through a guilty plea on the advice of court appointed
counsel. Furthermore, she alleges being unable to work and obtain funds
to purchase her high blood pressure and diabetes medication due to her
exclusion.(3) Pursuant to section 1128(a)(2) of the Act and 42 C.F.R. � 1001.2007,
an excluded individual under this section may file a request for hearing
before an ALJ on the issue of whether:
However, when the I.G. imposes an exclusion for the minimum mandatory
five-year period, the issue of the length of that exclusion is not considered.
42 C.F.R. � 1001.2007(a)(2). This is because Congress has established
a minimum mandatory exclusion period of five years. Aggravating factors
for lengthening a period of exclusion may be considered, but the five-year
period cannot be shortened. Thus, the only issue in this case is whether a basis exists for the sanction. Moreover, 42 C.F.R. � 1001.2007(d), provides that:
In the case of Peter J. Edmonson, DAB No. 1330 (1992), in response to the petitioner's argument that he was innocent of the conduct for which he was convicted and that he had incompetent assistance of counsel, an appellate panel of the Departmental Appeals Board held:
Edmonson, DAB No. 1330, at 4. The appellate panel went on say that:
Edmonson, DAB No. 1330, at 5. It is evident that Petitioner's conduct is the type of untrustworthy conduct that Congress sought to prevent. It follows, then, that a person who abuses patients is not fit to participate in Medicare, Medicaid, and all other federal health care programs. This is consistent with the Secretary's duty to assure that the requirements which govern the provision of health care, and the enforcement of those requirements, are adequate to protect the health, safety, welfare, and rights of beneficiaries and recipients of these programs. In view of the clear statutory and regulatory language, Petitioner's defense, which is grounded on alleged innocence and inadequate representation, cannot prosper. Congress left no room for discretion under these circumstances. I am, therefore, prohibited from providing equitable relief.
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CONCLUSION | ||||
Sections 1128(a)(2) and 1128(c)(3)(B) of the Act mandate that Petitioner be excluded from Medicare, Medicaid, and all federal health care programs for a period of at least five years because she was convicted of a criminal offense relating to abuse or eglect of a patient in connection with the delivery of a health care item or service. Petitioner's five-year exclusion is therefore sustained.
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JUDGE | ||||
Jose A. Anglada
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FOOTNOTES | ||||
1. Petitioner was not a certified nurse's assistant (CNA) on October 27, 1998. I.G. Ex. 5. However, Petitioner's lack of certification does not affect my decision that she is subject to a minimum mandatory five-year exclusion in this case. 2. I note that this 79-year old patient was Petitioner's brother-in-law. I.G. Ex. 6. However, this family relationship does not alter the essence of Petitioner's conviction and is unrelated to the issue before me. 3. Petitioner's reference to her lack of funds for
the purchase of medication does not warrant discussion here, as it is
unrelated to the issue before me. | ||||