SUBJECT:

Eveline Gates, C.N.A.,

Petitioner,

The Inspector General

By letter dated April 28, 2000, Eveline Gates, C.N.A. (Petitioner) was notified by the I.G., U.S. Department of Health and Human Services (D.H.H.S.), of the decision to exclude her for a period of five years from participation in the Medicare, Medicaid, Maternal and Child Services Block Grant, and Block Grant to States for Social Services programs.⁽¹⁾ The I.G. explained that the five-year exclusion was mandatory under sections 1128(a)(1) and 1128(c)(3)(B) of the Social Security Act (Act). The I.G. informed Petitioner that the exclusion was due to her conviction in the State of New York, County of Onondaga, City Court of Syracuse, of a criminal offense related to the delivery of an item or service under the Medicaid program.

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. Both parties submitted briefs in this matter. The I.G. submitted six proposed exhibits (I.G. Exs. 1-6). Petitioner objected to I.G. Ex. 3, the Misdemeanor Information in Petitioner's criminal case, claiming that it is prejudicial. I find that it is relevant and material and, contrary to Petitioner's assertion, I do not find it prejudicial as I consider only the offense for which Petitioner was convicted. Therefore, I find that the probative value of this exhibit is in no way "substantially outweighed by the danger of unfair prejudice." 42 C.F.R. � 1005.17(d). I admit I.G. Exs. 1-6 into evidence. Petitioner submitted two exhibits (P. Exs. 1 and 2). The record reflects however that these exhibits are duplicates of those submitted by the I.G. (see I.G. Exs. 2 and 5), which I have accepted. I therefore need not accept Petitioner's exhibits into evidence.

Sections 1128(a)(1) and 1128(c)(3)(B) of the Act make it mandatory for any individual who has been convicted of a criminal offense related to the delivery of a health care item or service under Medicare or Medicaid to be excluded from participation in such programs for a period of at least five years.

Petitioner contends that her conviction for falsifying business records is not related to the delivery of a health care item or service. She also maintains that the five-year exclusion is not reasonable in that such exclusion will result in the loss of her employment and career. She further asserts that such exclusion is excessive, as no patient was harmed by her misconduct and she has been subject to sanctions by New York State licensing agencies.

1. During the period relevant to this case, Petitioner was licensed by the State of New York as a licensed practical nurse. I.G. Exs. 4 and 5.

2. During the period relevant to this case, Petitioner worked as a licensed practical nurse at Rosewood Heights Health Center, a nursing home in Syracuse, New York. I.G. Exs. 4 and 5.

3. On January 6, 1999, in the City Court of Syracuse, New York, Petitioner was charged in a Misdemeanor Information with 22 counts which included: Wilful Violation of Public Health Laws (in violation of sections 12-b(2) and 2803-d(7) of the New York Public Health Laws and section 81.1(3) of Title 10 of the New York Code of Rules and Regulations); Endangering the Welfare of an Incompetent Person (in violation of section 260.25 of the New York Penal Law); and Falsifying Business Records in the Second Degree (in violation of section 175.05(1) of the New York Penal Law). I.G. Ex. 3.

4. Count 3 of the Misdemeanor Information alleged that Petitioner, on September 15, 1998, made a false entry on the Medimark II Treatment sheet of a patient at Rosewood Heights Health Center. Petitioner placed her initials in the block indicating that Petitioner had carried out the treatment order for a resident calling for irrigation of the abscess on her right ischium with water, flushing with normal saline, and application of a dry sterile dressing, when, in fact, Petitioner had not provided this treatment. I.G. Ex. 3 at 2-3.

5. On October 15, 1999, Petitioner pled guilty to Count 3 of the Misdemeanor Information, falsifying business records in the second degree, a violation of section 175.05(1) of the New York Penal Law. I.G. Exs. 4 and 5.

6. On October 15, 1999, as a result of her plea, Petitioner was sentenced to one-year conditional discharge. I.G. Ex. 4.

7. The resident's payer source for her medical care at Rosewood Heights Health Center was both Medicare and Medicaid, and on September 15, 1998, the primary payer source was Medicaid. I.G. Ex. 6.

8. Section 1128(a) of the Act provides for mandatory exclusion of individuals convicted of a criminal offense related to the delivery of a health care item or service under the Medicare and Medicaid program.

9. By letter dated April 28, 2000, the I.G. informed Petitioner that she would be excluded from participation in the Medicare and Medicaid programs for a period of five years pursuant to section 1128(a)(1) of the Act. I.G. Ex. 1.

10. Petitioner's criminal conviction constitutes a "conviction" within the meaning of section 1128(i)(3) of the Act.

11. Petitioner's conviction for Falsifying Business Records in the Second Degree is related to the delivery of a health care item or service under the Medicare/Medicaid programs within the meaning of section 1128(a)(1) of the Act.

12. Once an individual has been convicted of a program-related criminal offense under section 1128(a)(1) of the Act, exclusion is mandatory under section 1128(c)(3)(B) of the Act.

13. The I.G. properly excluded Petitioner, pursuant to section 1128(a)(1) of the Act, for a period of five years, as required by the minimum mandatory exclusion provision of section 1128(c)(3)(B) of the Act.

The first statutory requirement for the imposition of mandatory exclusion pursuant to section 1128(a)(1) of the Act is that the individual or entity in question is convicted of a criminal offense under federal or state law. Petitioner does not challenge that she has been convicted under state law, and I so find. The record reflects that Petitioner pled guilty to the offense on October 15, 1999 in the City Court of Syracuse, New York. I.G. Exs. 4 and 5. Petitioner was thus convicted within the meaning of section 1128(i)(3) of the Act.

Next, it is required under section 1128(a)(1) of the Act that the crime in question be related to the delivery of a health care item or service under the Medicare/Medicaid program. To determine if an offense is program-related, the Administrative Law Judge (ALJ) must analyze the facts and circumstances underlying the conviction to determine whether a nexus or common sense connection links the offense, for which a petitioner has been convicted, and the delivery of a health care item or service under a covered program. Berton Siegel, D.O., DAB No. 1467 (1994). In Petitioner's case, a nexus links the facts underlying her crime with the delivery of health care items or services under Medicaid. The record reflects that Petitioner was employed as a licensed practical nurse in a health care facility. I.G. Ex. 3. While so employed, Petitioner was responsible for the care of a patient who was a Medicare and Medicaid recipient. In the course of her employment, Petitioner falsely completed a medical record regarding the patient. Petitioner claimed to have provided required medical care to the patient when in fact she did not and she annotated the patient's medical records to falsely reflect that she provided the required treatment. In the present case, the nexus between Petitioner's offense and the delivery of health care items or services is firmly established by her conviction for the charge of Falsifying Business Records in the Second Degree. I.G. Ex. 4.

Petitioner asserts that exclusion is not warranted in her case because such penalties effectively deprive her of her nursing license and the right to practice her profession as she cannot be employed in the health care field while excluded. Such argument however has been previously rejected. Farhad Mohebban, M.D., DAB CR686 (2000); Arlene Elizabeth Hunter, R.N., DAB CR505 (1997).

Finally, Petitioner argues that her exclusion is excessive as no patient was harmed and she has already been sanctioned by the State of New York licensing authorities. Under section 1128(c)(3)(B) of the Act, a five-year period of exclusion is mandatory. Neither the I.G. nor the ALJ is authorized to reduce this mandatory period. 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)(1) 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 of her conviction for a criminal offense related to the delivery of a health care item or service under the Medicaid program. 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.