Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD
Appellate Division
In the Case of:
Peter J. Edmonson,
Petitioner,
- v. -
The Inspector General.
DATE: May 21, 1992
Docket No. C-401
Decision No. 1330
FINAL DECISION ON REVIEW OF
ADMINISTRATIVE LAW JUDGE
DECISION
Peter J. Edmonson (Petitioner) requested review of a November 7,
1991
decision by Administrative Law Judge (ALJ) Steven T. Kessel
upholding
Petitioner's exclusion from participation in Medicare and any
State
health care program for five years. 1/ See Peter J. Edmonson, DAB
CR163
(1991) (ALJ Decision).
Petitioner's exclusion was based on section 1128(a)(2) of the
Social
Security Act (Act). Section 1128(a) of the Act provides for
mandatory
exclusions and states that the Secretary of the Department of
Health and
Human Services "shall exclude" from Medicare and Medicaid any
individual
or entity "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." Section 1128(c)(3)(B)
establishes
that "[i]n the case of an exclusion under subsection (a), the
minimum
period of exclusion shall be not less than five years."
The record in this case consists of the record before the ALJ, the
ALJ
Decision, the Board's transcript of Petitioner's appeal from the
ALJ
Decision, the Inspector General's (I.G.'s) brief, and the transcript
of
a telephone conference conducted by the Presiding Panel Member in
which
the parties presented oral arguments. 2/
Based on the following analysis, we affirm the ALJ Decision
excluding
Petitioner from Medicare and Medicaid for five years.
Background
The I.G. excluded Petitioner from Medicare and Medicaid for five
years
pursuant to section 1128(a)(2) of the Act. Petitioner timely
requested
a hearing before an ALJ.
The ALJ upheld Petitioner's exclusion based on the following findings
of
fact and conclusions of law (FFCLs) --
1. Petitioner was employed as a nurse's assistant at Shreveport
Manor
Nursing Home located in Shreveport, Louisiana.
2. The alleged victim was, at the time of the incident, a resident
at
Shreveport Nursing Home.
3. Petitioner was charged with the offense of "Cruelty to the
Infirm"
on October 12, 1989. It was alleged in an affidavit for an
arrest
warrant that Petitioner intentionally and negligently mistreated
a
nursing home resident by beating him with a shoe.
4. Petitioner pled guilty in Louisiana state court to simple battery
on
August 27, 1990, and was sentenced to six months in the parish
jail.
The sentence was suspended and Petitioner was placed on probation for
a
period of one year.
5. Petitioner was convicted of a criminal offense relating to
neglect
and abuse of patients in connection with the delivery of a health
care
item or service.
6. Petitioner was convicted of a criminal offense within the meaning
of
section 1128(a)(2) of the Social Security Act.
7. On May 24, 1991, the I.G. excluded Petitioner from participating
in
the Medicare program and directed that he be excluded from
participating
in Medicaid, pursuant to section 1128(a)(2) of the Act.
8. There are no disputed issues of material fact in this case
and
summary disposition is appropriate.
9. The Secretary of Health and Human Services (the Secretary)
delegated
to the I.G. the authority to determine, impose, and direct
exclusions
pursuant to section 1128 of the Social Security Act.
10. The exclusion imposed and directed against Petitioner by the
I.G.
was for five years, the minimum period required by law for
exclusions
imposed and directed pursuant to section 1128(a)(2) of the
Social
Security Act.
11. Petitioner may not collaterally attack his criminal conviction
in
this proceeding.
12. The exclusion imposed and directed against Petitioner by the
I.G.
is mandated by law.
ALJ Decision at 3-4 (citations omitted).
Petitioner's Exception
In his appeal of the ALJ Decision, Petitioner denied the facts upon
which
his battery conviction was based. Specifically, Petitioner
maintained
that he did not mistreat or abuse the patient in question.
Rather, Petitioner
alleged that his court-appointed counsel for the
state criminal proceedings
"railroaded" him. Petitioner explained that
he was not well-educated
and was dependent upon his attorney to explain
the intricacies of his legal
dilemma to him. Petitioner alleged that
the proceedings in his criminal
case were often delayed and that his
attorney was unresponsive to his
numerous attempts to contact her for
information. Petitioner
stated that counsel did not inform him that he
could lose his livelihood in
the health care field based on the battery
conviction. Had he been
aware of this possibility, Petitioner alleged
that he would have taken the
stand to explain himself rather than
allowing counsel to convince him to plea
to the lesser charge.
During the oral argument, Petitioner continued to assert that he
was
innocent of the charges against him.
Analysis
While Petitioner did not specifically identify the FFCLs with which
he
disagreed, it is clear from his arguments that he takes exception
to
FFCL 11, which concluded that he may not collaterally attack
his
criminal conviction in this proceeding.
Section 1128(a)(2) of the Act provides for the mandatory exclusion
of
"[a]ny 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." Section
1128(i) of
the Act defines the term "conviction." As is relevant here,
an
individual is considered to have been "convicted" of a criminal
offense
"when a plea of guilty or nolo contendere [no contest] by the
individual
. . . has been accepted by a Federal, State, or local
court." See
section 1128(i)(3) of the Act. Additionally, section
1128(c)(3)(B)
mandates that the minimum period of exclusion under section
1128(a)
shall be five years.
The ALJ's analysis stated that section 1128(a)(2) applied here since
"it
[was] clear that the crime to which Petitioner pled guilty arose from
an
incident . . . in which Petitioner was alleged to have repeatedly
struck
a 75 year-old nursing home resident with a shoe." ALJ Decision
at 4.
Since section 1128(a)(2) mandated the exclusion, Petitioner's
assertions
of innocence are immaterial. The mandatory exclusion which
the I.G.
imposed, and the ALJ upheld, resulted from Petitioner's conviction
of a
criminal offense covered by section 1128(a)(2). It is the fact of
the
conviction which causes the exclusion. The law does not permit
the
Secretary to look behind the conviction. Instead, Congress intended
the
Secretary to exclude potentially untrustworthy individuals or
entities
based on criminal convictions. This provides protection for
federally
funded programs and their beneficiaries and recipients,
without
expending program resources to duplicate existing criminal
processes.
As we have noted elsewhere, the fact that a criminal conviction may
have
been defective or that conduct once proscribed is now lawful
is
irrelevant to the issue of the I.G.'s authority to exclude a
convicted
individual. See Andy E. Bailey, C.T., DAB 1131 (1990); see
also John
W. Foderick, M.D., DAB 1125 (1990). While Petitioner
argued that he was
innocent of the charges upon which the conviction was
based, he did not
deny the fact that he was convicted of an offense to which
section
1128(a)(2) applied. Thus, the ALJ did not err when he concluded
that
the administrative exclusion proceeding could not be used
to
collaterally attack the state criminal conviction.
If Petitioner believes that his criminal conviction for simple battery
was
improper due to the inadequacy of counsel or for some other reason,
he is
free to pursue whatever remedy may be available to him through the
Louisiana
state court system. However, these administrative proceedings
cannot be
used to attack a state (or federal) criminal conviction. So
long as
there exists a conviction for an offense described in section
1128(a)(2) of
the Act, Petitioner must be excluded.
Conclusion
Based on the preceding analysis, we affirm and adopt FFCL 11 to
which
Petitioner took exception. We also affirm and adopt FFCLs 1-10
and 12
to which Petitioner did not take exception. Consequently, we
sustain
the ALJ Decision affirming Petitioner's exclusion from Medicare
and
Medicaid for five years.
_________________________
Donald
F. Garrett
_________________________
Theodore
J. Roumel Public Health
Service
_________________________
Cecilia
Sparks Ford Presiding
Panel Member
1. "State health care program" is defined by section 1128(h) of the
Act
to include, in part, a State plan approved under Title XIX of the
Act
(Medicaid). We use the term Medicaid to refer to all state
health
programs.
2. Indicating that he did not feel he could adequately express
himself
in writing, Petitioner submitted a taped appeal from the ALJ
Decision.
The Panel transcribed the tape and provided the parties with a copy
of
both the tape and the transcript. Given Petitioner's concerns,
the
Presiding Panel Member conducted an oral argument by
telephone
conference on April 7, 1992 to permit the Petitioner to reply
to the
I.G.'s brief orally, rather than in