SUBJECT:

Maureen T. Kehoe,

Petitioner,

The Inspector General

Petitioner filed a request for a hearing. 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 brief, and five proposed exhibits (I.G. Exs. 1-5). Petitioner has not objected to these proposed exhibits and I admit I.G. Exhibits 1-5 into evidence. Petitioner submitted a brief and nine proposed exhibits (P. Exs. 1-9). The I.G. did not object to these exhibits and I accept Petitioner Exhibits 1-9 into evidence.

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.

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 minimum period of five years.

Petitioner contends that her conviction for "Falsification" in violation of Ohio Revised Code (ORC) � 2921.13 does not constitute a conviction for abuse or neglect of a patient as those terms are used in section 1128(a)(2) of the Act. She maintains that she did not plead guilty to patient abuse as defined in ORC � 2903.34. She admits that her criminal offense arose out of the circumstances stated by the I.G. but contends that Falsification is not a lesser offense of patient abuse. She asserts that her offense is not one related to patient abuse but rather relates to a permissive fraud exclusion under section 1128(b) of the Act.

Petitioner also asserts that she does not bear sole responsibility for the injury to the patient. An investigation of the incident in question reflects that the nursing home where she was employed was poorly managed and maintained and through its negligence the water temperature on the boiler reached scalding level. She notes that she has been employed as a nurse for many years and had not, until the incident in question, ever been accused of misfeasance.

1. At all times relevant herein, Petitioner was a licensed practical nurse employed at Cuyahoga Nursing Home.
I.G. Ex. 4.

2. An investigation of a July 4, 1997 incident at Cuyahoga Nursing Home reflects that Petitioner recklessly: failed to test the temperature of the bath water before lowering a patient into the bath, causing second-degree burns to the patient's feet and resulting in amputation of the patient's legs; failed to disclose the patient's injuries or seek medical attention for the patient; attempted to cover up the incident by lying about the patient's condition; failed to obtain the proper medical attention required to treat severe burns; and neglected to enter information regarding the injury into the patient's medical record. I.G. Ex. 4; P. Ex. 1.

3. On June 29, 1998, Petitioner was indicted on a charge of Patient Abuse, a fourth degree felony, based on the July 4, 1997 incident. I.G. Ex. 5.

4. On December 2, 1998, the original indictment for Patient Abuse was amended to Falsification in violation of ORC � 2921.13. I.G. Ex. 2.

5. On December 2, 1998, Petitioner pled guilty to Falsification and a judgment was entered against her. I.G. Ex. 2.

6. As a result of her conviction, Petitioner was sentenced to Cuyahoga County jail for a term of six months, suspended and ordered to pay costs and a fine of $500. I.G. Ex. 2.

7. On September 30, 1999, the I.G. notified Petitioner that she 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.

8. Petitioner's guilty plea constitutes a conviction within the meaning of section 1128(i)(3) of the Act.

9. Petitioner's conviction for "Falsification" is 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.

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

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

12. 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.

13. Neither the I.G. nor an 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.

To justify excluding an individual 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 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 guilty to Falsification in violation of ORC � 2921.13. The court then accepted Petitioner's guilty plea and sentenced her. 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 scope of section 1128(a)(2) of the Act. Petitioner contends that her conviction for Falsification does not constitute abuse or neglect within the scope of the Act. However, I find that it is appropriate and warranted to include Petitioner's misconduct within the scope 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), both ALJs and Appellate Panels of the DAB have determined that they should be given their ordinary and common meaning. As stated in Rosette Elliott, DAB CR84 (1990) "neglect" includes failure by party to satisfy a duty of care to another person. "Abuse" is intended to include those situations where a party willfully mistreats another person. I find that Petitioner's misconduct falls within the common and ordinary meaning of the terms "neglect" and "abuse." See Patricia Self, DAB CR198 (1992).

The record here establishes that Petitioner failed to disclose the circumstances surrounding the patient's injury and failed to enter the injury into the patient's medical record, depriving the patient of prompt and appropriate medical treatment. Petitioner herself acknowledges that she failed to disclose how the injury occurred. P. Brief at 10. Petitioner's misconduct reflects a significant deviation from the standard of care she owed to her patient and is serious misconduct. See Frank S. Horng, M.D., DAB CR410 (1996); Gabriel S. Orzame, M.D., DAB CR587 (1999). 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 stated that altered medical records can have a negative impact on patients "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 stressed the importance of accurate documentation in assuring the continuity of care provided a patient. I find that, by her misconduct, Petitioner needlessly subjected her patient to potential risks and failed to meet her duty of care.

In her defense, Petitioner asserts that the nursing home where she was employed bears great responsibility for the unfortunate injury however such argument is not relevant. Petitioner pled guilty to Falsification and she cannot seek to undermine the validity of such plea in a collateral attack on her conviction in these proceedings. Paul R. Scollo, D.P.M., DAB CR300 (1994), aff'd DAB No. 1498 (1994); Ernest Valle, DAB CR309 (1994); Peter J. Edmondson, 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 DAB has interpreted the broad terminology of section 1128(a)(2) to suggest that Congress intended to allow even a minimal nexus between an 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 licensed practical nurse providing medical services to patients in the nursing home where she was employed, clearly is within the scope of the Act.

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 abuse or neglect of patients in connection with the delivery of a health care item or service. Aida Cantu, DAB CR462 (1997). Petitioner asserts that her conviction more properly relates to section 1128(b), permissive exclusions relating to fraud, but I disagree. Petitioner's conviction for Falsification clearly rose out of incident involving patient abuse, and the basis for her conviction, her failure to maintain accurate medical records regarding a patient in her care, under the authority cited above, is within the scope of section 1128(a)(2).

Once it is determined that a conviction relating to the abuse or neglect of a patient has occurred, exclusion is mandatory under section 1128(a)(2). See Edmondson. In this case, Petitioner has been convicted within the meaning of section 1128(i)(3) of the Act of an act involving the abuse or neglect 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 (1989), 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 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 abuse or neglect 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

1. In this decision, I use the term "Medicaid" to refer to these State health care programs.