Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD
Appellate Division
In the Case of:
Carolyn Westin,
Petitioner,
- v. -
The Inspector General.
DATE: January 19, 1993
Docket No. C-391
Decision No. 1381
FINAL DECISION ON REVIEW OF
ADMINISTRATIVE LAW JUDGE
DECISION
Carolyn Westin (Petitioner) appealed a decision by Administrative
Law
Judge (ALJ) Edward D. Steinman issued on August 24, 1992. See
Carolyn
Westin, DAB CR229 (1992) (ALJ Decision). The ALJ upheld a
determination
by the Inspector General (I.G.) excluding Petitioner from
participation
in Medicare, Medicaid, and other federally funded state health
care
programs for five years.
Based on the following analysis, we affirm the ALJ Decision and adopt
each
of the findings of fact and conclusions of law (FFCLs) in that
decision
except FFCL 14, which we strike as unsupported.
Background
In 1989, the Adams County (Colorado) District Court accepted
Petitioner's
plea of nolo contendere to Count Four of a criminal
indictment which had been
returned in 1985 in the Denver District Court.
Count Four charged Petitioner
with "Willful Disregard of Colorado
Department of Health Regulation . . .
." I.G. Exhibit (Ex.) 3, at 1.
The narrative portion of the indictment
relating to this count
identified the regulation in question as Chapter VI,
4, 4.3(4) and
Chapter V, 4, 4.5(4), 6 CCR 1011-1, and quoted the regulation
as
providing that "[a]ccidents and incidents resulting in possible
patient
injury shall be reported on special report forms. . . . A copy
of
report shall be filed in the patient's medical record." According
to
the indictment, the incident to which Count Four related occurred
in
1984, when a nurse at the nursing home of which Petitioner was
the
administrator found a patient entrapped between the rail and the
frame
of her bed. The patient required emergency resuscitation and
was
airlifted to a hospital, where she later died. No report of
this
incident was ever filed.
Although Petitioner's nolo contendere plea to Count Four of the
indictment
was accepted, the court deferred judgment and sentence for
one year and
dismissed the count the following year in accordance with
Petitioner's plea
agreement.
Petitioner's exclusion was based on section 1128(a)(2) of the
Social
Security Act (Act), which mandates exclusion from Medicare and
State
health care programs 1/ for 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." Any such exclusion must be imposed for at least five
years.
Section 1128(c)(3)(B) of the Act.
The ALJ Decision
In his decision, the ALJ noted that, in Vicky L. Tennant, DAB
CR134
(1991), he had sustained a five-year exclusion based on facts which
were
"essentially identical" to the facts of this case. ALJ Decision at
6.
Tennant was the director of nursing for the nursing home of
which
Petitioner was administrator, and was indicted based on the
same
incident in question here, and pled nolo contendere to the same
offense.
The ALJ stated that Petitioner had not offered any evidence
to
distinguish her case from Tennant, nor had she presented any
evidence
that Tennant was incorrectly decided. The ALJ thus sustained
the
exclusion against Petitioner for the reasons set forth in Tennant,
which
are summarized below. In Tennant, the ALJ first addressed the
issue of
whether Tennant was "convicted" even though the case against her
was
ultimately dismissed following the same procedure as in
Petitioner's
case. The ALJ noted that section 1128(i)(3) provides that
an individual
is convicted "when a plea of guilty or nolo contendere by the
individual
. . . has been accepted by a Federal, State, or local court,"
while
section 1128(i)(4) provides that an individual is convicted "when
the
individual . . . has entered into participation in a first
offender,
deferred adjudication, or other arrangement or program where
judgment of
conviction has been withheld." The ALJ found that since
Tennant pled
nolo contendere, her plea was accepted, and she was accepted
into a
deferred adjudication program, there was a conviction within the
meaning
of both of these provisions. He stated that it was the fact of
the
conviction itself, as defined in these provisions, that gives the
I.G.
the authority to exclude, and that the date upon which the
state
criminal action was dismissed was thus irrelevant for purposes of
the
Act.
In Tennant, the ALJ also addressed the issue of whether
Tennant's
conviction related to neglect or abuse of patients in connection of
the
delivery of a health care item or service within the meaning of
section
1128(a)(2). The ALJ found that, as the director of nursing,
Tennant had
a duty to ensure that an incident report was filed with respect
to any
incidents which could harm a patient. The ALJ further found
that
Tennant's failure to ensure that the incident report was filed
directly
related to her duty to care not only for the patient involved in
the
incident but for other patients who might suffer injuries as a result
of
a similar incident, and amounted to patient neglect in connection
with
the delivery of a health care item or service. The ALJ stated that
it
was not necessary to find that Tennant was convicted of neglect or
abuse
of a patient as long as the act which triggered the conviction was
an
act of neglect. The ALJ also ruled that it was proper to rely
on
Tennant's indictment, as well as on the document admitted at
the
sentencing hearing as the factual basis for her plea, in order
to
determine whether her conviction met the elements of section
1128(a)(2).
Finally, the ALJ concluded in Tennant that since Tennant's offense met
the
statutory requirements of section 1128(a)(2), a five-year minimum
exclusion
was required and he had no discretion to modify that
exclusion.
.Discussion of Issues on Appeal
On appeal, Petitioner took exception to 19 of the 24 FFCLs in the
ALJ
Decision upholding her exclusion. In addition, Petitioner argued
that
the exclusion should be dismissed on numerous other grounds not
related
to a specific FFCL. We have divided Petitioner's arguments into
four
categories: (1) arguments related to whether she was "convicted;"
(2)
arguments related to whether her conviction was related to neglect
or
abuse of patients; (3) arguments that could be characterized
as
constitutional claims; (4) arguments raising factual disputes.
The ALJ's wholesale incorporation by reference of his legal analysis
from
the Tennant case apparently caused him to overlook some of
Petitioner's
unique contentions, made it difficult for us to determine
what parts of the
ALJ Decision addressed other contentions, and further
contributed to
Petitioner's concern that her case was not being given
individual
attention. It was particularly inappropriate because
Petitioner had
expressed that concern early in the proceeding and
because Petitioner was
representing herself. While we conclude that the
legal analysis and
necessary factual findings in the ALJ Decision are
legally sufficient to
support the exclusion, the ALJ's approach obliged
us to treat Petitioner's
objections at length.
We have in some instances paraphrased and summarized Petitioner's
numerous
contentions, many of which we found to be duplicative and
overlapping.
Even if not expressly mentioned, we have considered each
and every one of the
arguments made in the briefs and attachments and
other documents submitted by
Petitioner. As our decision reflects, we
concur with the ALJ's
conclusion that Petitioner was convicted of a
criminal offense related to
patient neglect in connection with the
delivery of a health care service and
that her exclusion from Medicare
and Medicaid for five years is mandated by
law.
1. CONVICTION
Many of Petitioner's objections are based upon her contention that she
was
not actually "convicted" of a crime because, after she pled nolo
contendere,
she was placed on probation for one year, after which time
the county court
dismissed her plea "nunc pro tunc." 2/ According to
Petitioner, the ALJ
erred because the "conviction" in this case does not
meet "the general legal
understanding of that action" (10/10/92 appeal
brief (app. br.) at 3), and
because her counsel and state court had both
explained to her that this
arrangement would result in expungement of
her record as if no conviction had
occurred. 3/
The ALJ correctly held that the definition of "convicted" to be applied
in
determining whether an exclusion was authorized here is found in
section
1128(i) of the Act. The ALJ found that Petitioner met two parts
of that
definition -- she had had a plea of nolo contendere accepted by
a court
(section 1128(i)(3)) and she had entered into participation in a
deferred
adjudication program (section 1128(i)(4)). If there were no
definition
of "convicted" in the Act, then Petitioner's arguments about
whether a
conviction exists as commonly understood or for state law
purposes would be
relevant. 4/ However, Congress has defined for the ALJ
and this Board what
"convicted" means for purposes of section 1128 and
that definition is binding
on us. Moreover, it is clear from the
legislative history of this
provision that Congress adopted such broad
definitions to ensure that
exclusions from federally funded health
programs would not hinge on state
criminal justice policies. The
Committee Report recommending adoption
of this definition expressly
discussed first offender and deferred
adjudication programs stating --
These criminal dispositions may well represent rational
criminal
justice policy. The Committee is concerned, however,
that
individuals who have entered guilty or nolo pleas to
criminal
charges of defrauding the Medicaid program are not subject
to
the exclusion from either Medicare or Medicaid.
These
individuals have admitted that they engaged in criminal
abuse
against a Federal health program and, in the view of
the
Committee, they should be subject to exclusion.
H.R.Rep. No. 727, 99th Cong., 2d Sess. 75, reprinted in 1986
U.S.C.C.A.N.
3607, 3665. Although Petitioner in this case pled to a
charge amounting
to patient neglect rather than fraud, the same policy
is applicable
here. Petitioner did not except to FFCLs finding that her
nolo plea was
accepted (FFCL 6) or that she entered into a deferred
adjudication program
(FFCL 7). Consequently, the ALJ correctly
concluded that Petitioner was
convicted as defined in section 1128(i) of
the Act.
Petitioner also objected specifically to FFCLs 16 and 17 which state:
16. Petitioner's plea of nolo contendere constitutes
a
conviction for the purposes of section 1128(a)(2) of the Act.
17. Notwithstanding that Petitioner's plea of nolo
contendere
was dismissed nunc pro tunc in March 1990, Petitioner's
plea
constituted a conviction of a criminal offense within
the
definition of section 1128(i)(3) and section 1128(i)(4) of
the
Act.
ALJ Decision at 5. 5/ Petitioner argued that these FFCLs
were
erroneous. 6/ She also maintained that since her nolo contendere
plea
was dismissed before the I.G. began his exclusion action, it could
not
be used as the basis for an exclusion. However, as noted
previously,
the statute specifically provides that an individual whose plea
has been
accepted by a court is "convicted." There is nothing in the
statute
which indicates that this definition does not apply if the
nolo
contendere plea is subsequently dismissed; in fact, the
definition
expressly includes individuals whose charges are dismissed as part
of a
deferred adjudication or first offender program. Although,
technically,
these FFCLs are incomplete because they refer only to the
nolo
contendere plea and not to its acceptance, or the deferred
adjudication,
we see no reason to modify them in light of FFCLs 6 and 7 which
make the
requisite findings.
Petitioner also excepted to FFCLs 3 and 4, which provide:
3. On November 8, 1985, a criminal indictment was returned
in
the Denver (Colorado) District Court, against
Petitioner,
Victoria Tennant (Vicky L. Tennant), and T & S Leasing,
Inc.,
DBA Aspen Care Center West.
4. Petitioner was charged with one felony and
four
misdemeanors.
Petitioner argued that the charges in the indictment were not
properly
considered because all of the counts except Count Four were
dismissed
and that Count Four was maintained only for the purpose of her
entering
a nolo contendere plea "to end the matter." App. br. at
2. This
argument has no merit. Petitioner did not deny that the
indictment
identified in FFCL 3 was returned or that it charged her with one
felony
and four misdemeanors. Thus, there is no dispute that the FFCLs
are
factually correct. Moreover, contrary to Petitioner's argument,
in
determining whether Petitioner's exclusion was warranted, the ALJ
did
not take into account the charges against Petitioner which
were
dismissed initially. Furthermore, the ALJ properly considered
Count
Four of the indictment since, under section 1128(i)(3), the
acceptance
of a nolo contendere plea constitutes a conviction regardless of
a
petitioner's intent in making the plea.
Petitioner also objected to FFCLs 9 and 10 which state:
9. Colorado Department of Health regulations at 6 CCR (Code
of
Colorado Regulations) 1011-1 Ch. V section 4.5.4. provide that:
Accidents and incidents resulting in possible patient
injury
shall be reported on special report forms. The report
shall
include date, time and place of incident; circumstances of
the
occurrence, signature of witness; time the doctor was
notified;
physician's report; signature of person making the
report. A
copy of report shall be filed in the patient's medical
record.
10. Count Four charged that Petitioner unlawfully and
willfully
violated and disobeyed the provisions of the lawful
regulations
of the Colorado Department of Health requiring the
preparation
and maintenance of an incident report to document
the
circumstances surrounding any unusual occurrence resulting
in
possible injury to a patient in a licensed nursing home.
Petitioner argued that the regulation to which these FFCLs refer was
a
1986 regulation which was not applicable to her case since the
incident
in question occurred in 1984. Petitioner also maintained that
--
o the charge was fictitious except for the purpose of entering into
the
nolo contendere plea; 7/
o the regulation was unclear and it was for that reason that
the
prosecution wished to settle the case;
o she did not know that pleading nolo contendere would result in
a
finding of neglect, and she presently denied any involvement
with
patient abuse or neglect;
o the IG had to prove that she was required to file an incident report;
o and as she was "clothed in innocence," (reply br. at 1) the I.G.
must
prove (and had not) that she committed patient neglect.
All of Petitioner's contentions amount to an attack on her
state
conviction which must be rejected. We note that the record in
this case
does not show whether the regulation referred to in FFCLs 9 and 10
was
in existence in 1984 because the copy of the regulation in I.G. Ex.
14
is undated, while I.G. Ex. 12 refers to a 1986
regulation.
Nevertheless, we conclude that this is not a basis for a finding
of
error. Count Four of the indictment clearly quotes the text of
the
regulation as it appears in FFCL 9 as the regulation which
Petitioner
was charged with violating. Thus, this is the regulation to
which
Petitioner pled nolo contendere. Since the court accepted her
plea,
this is the offense of which she was convicted within the meaning
of
section 1128(a)(2) of the Act. Douglas Schram, R.Ph., DAB 1372
(1992).
It is disingenuous of Petitioner to acquiesce to the application of
this
regulation when it suits her and then later to attack it. If
Petitioner
wished to argue that the offense identified in Count Four was not
an
offense under Colorado law at the time the incident occurred, the
proper
forum for her argument was a state or county court. Id.
Under the Act,
since the offense only has to be "related to patient neglect,"
and the
relationship between failure to file a required report under
the
circumstances here is reasonably related to patient neglect,
Petitioner
had constructive notice that her plea could lead to a finding of
patient
neglect.
Moreover, we have held that an ALJ is not required to determine the
"guilt
or innocence" of a party as to the conduct on which the state
action is based
before affirming a petitioner's exclusion by the I.G.
Behrooz Bassim, M.D.,
DAB 1333 at 9-10 (1992). Our conclusion is
consistent with the
legislative history and purpose of those sections of
the Act authorizing
derivative exclusions. There would be no point in
relying on these
actions if they could be reopened and relitigated
during the exclusion
proceedings.
Consequently, all of Petitioner's arguments about her intentions
or
understandings when she pled nolo contendere, and her claim that she
is
innocent of any wrongdoing unless the I.G proves her guilty,
are
irrelevant. As we stated in Peter J. Edmonson, DAB 1330 (1992),
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.
Edmonson at 4.
2. NEGLECT
Petitioner objected to FFCL 20:
Petitioner was convicted of a criminal offense relating
to
neglect or abuse of patients within the meaning of
section
1128(a) of the Act.
Petitioner contended that the FFCL was erroneous and that the
exclusion
should be dismissed because (1) the I.G. had never defined the
patient
abuse or neglect charge against her in enough detail for her to
defend
against it, even though Petitioner specifically requested such
a
definition; (2) the I.G. did not prove that she committed patient
abuse
or neglect; and (3) the I.G. did not prove that her conviction
was
related to patient abuse or neglect.
Upon review of the record in this case, we find that, in addition
to
having constructive notice from the statute, Petitioner was
amply
informed of the relevant definition of patient abuse or neglect in
this
case by the I.G.'s briefs and by decisions supplied to her by the
ALJ.
The I.G. explained in his motion for summary judgment and in his
3/5/92
response to Petitioner's motions his position that it was not
necessary
that the words "patient abuse or neglect" be contained in the
regulation
which Petitioner admitted violating. Instead, since the
Act's language
provides for exclusions for "convictions . . . related to
neglect or
abuse of patients in connection with the delivery of a health care
item
or service," the I.G. contended that the ALJ should examine the
conduct
underlying the misdemeanor to which Petitioner pled nolo
contendere. In
addition, the ALJ provided Petitioner with all ALJ and
Board appellate
cases discussing the application of section 1128(a)(2).
See 3/2/92
Letter to Petitioner and I.G. Counsel from Civil Remedies Division
Staff
Attorney. These cases also informed Petitioner that the ALJ would
look
to the conduct underlying the offense. See, e.g., Summit
Health
Limited, dba Marina Convalescent Hospital, DAB 1173 (1990). All
of
these explanations were provided to Petitioner before she was
required
to file any briefs in this case; consequently, we find that she
had
received explanations of the I.G.'s case more than sufficient to
prepare
her defense.
In addition, the ALJ was correct when he determined that the I.G. did
not
have to prove that Petitioner committed patient abuse or neglect.
The I.G.
met his burden of proof by establishing that there was a
conviction as
defined by the Act and that the offense of which
Petitioner was convicted was
related to patient neglect in connection
with the delivery of a health care
service.
Since we agree with the ALJ that the conviction standing alone,
provided
the offense was of the type specified by the statute, was sufficient
to
invoke the mandatory exclusion, we next discuss Petitioner's
contentions
concerning the ALJ's finding that Petitioner's conviction was
for
patient neglect. In connection with this, Petitioner argued that
there
must a "plain English" reading of the Act to require that the
court
conviction speak for itself; that, in order to use a conviction in
this
manner, it was required that "neglect" be specifically mentioned
during
the criminal process so that an accused could defend at that time;
that
it was inappropriate to use the "factual basis" determination by
the
state trial judge to determine the nature of the violation she pled
to;
and that the I.G. did not prove that she had a "duty to report" or
that
her actions directly impacted on the health and safety of patients
under
her care.
We disagree with Petitioner's contention that the "plain English"
reading
of the Act mandates exclusion only where a person or entity is
convicted of a
statute or regulation containing the terms "patient
neglect or abuse."
To the contrary, the Act specifically provides for
exclusion where a party is
convicted of a crime "related to" patient
neglect or abuse, so the question
is whether the criminal offense which
formed the basis for the conviction
related to neglect or abuse of
patients. Because of this wording, it
does not matter that the term
"neglect" was not specifically mentioned during
the criminal process.
We reject Petitioner's other contentions about whether her conviction
was
related to patient neglect. We determine that the ALJ did not err
in
reaching the following conclusions:
o It was appropriate to use the "factual basis" determination used
by
the state trial judge in determining whether to accept the plea,
despite
Petitioner's claim that it was adopted for expediency.
Petitioner
stipulated to its accuracy during the plea hearing. I.G. Ex.
8 at 3.
o By proving her nolo contendere plea to the particular section of
the
Colorado code which establishes that the filing of an incident report
is
a duty of care owed both to nursing home patients and the public,
the
I.G. established that the offense of which Petitioner was convicted
was
a failure to meet a "duty to report" this incident. See I.G. Exs.
13
and 14.
o Since failure to file the required report denied the state
important
information about the circumstances of the patient's death, the
offense
had a direct relationship to the health and safety of patients
and
therefore constituted patient neglect. See Tennant at 10-11.
Petitioner also objected to FFCL 15, which states:
Prior to the death of L.G., Aspen's management was aware of
the
tragic results that could occur from the improper care of
a
Huntington's disease patient and the need to take
corrective
action. This is reflected by the death of V.C., a
patient at
Aspen, who died of asphyxia in her bed in similar
circumstances
to L.G. Prior knowledge also arose from a
Department review of
Aspen in the Spring of 1984. During the
course of the review,
Petitioner was told that steps had to be taken to
protect
another Huntington's disease patient whose bedding was
observed
to be unsafe.
Petitioner argued that this FFCL was incomplete because it did not
mention
other conversations between Petitioner and the Department in
which "the
Department" agreed that patient L.G. was well cared for.
Petitioner indicated
that she was unable to document such conversations
because the ALJ denied her
request for discovery. Petitioner also
argued that she has never been
involved in anything related to patient
abuse or neglect and in fact was an
excellent caregiver.
We conclude that Petitioner's arguments do not provide a basis
for
reversing this FFCL. Petitioner did not dispute any of the
statements
in the FFCL. Even if Petitioner was told on other occasions
that this
patient or other patients in the nursing home were well cared for,
this
does not directly contradict the evidence supporting the ALJ's
finding
about the notice received concerning the need to protect
Huntington's
disease patients in the home. Thus, it would not affect
the result in
this case if Petitioner were able to document the conversations
referred
to in her exception. In addition, Petitioner's other
contentions about
her treatment of patients are not material here, since,
once it is
determined that Petitioner's conviction was for a criminal
offense
relating to patient neglect, her exclusion is mandatory. See
Travers v.
Sullivan, 791 F.Supp. 1471 (E.D. Wash. 1992).
Petitioner objected to FFCL 21 on the ground that the I.G. has not
proven
the underlying facts. That FFCL states:
On May 24, 1991, the I.G. excluded Petitioner from
participating
in Medicare and directed that she be excluded from
participating
in Medicaid, pursuant to section 1128(a)(2) of the
Act.
We construe Petitioner's objection to mean that, in order to exclude
her,
the I.G. was required to prove such underlying facts as whether the
incident
occurred. We have already explained at length that the Act
requires
only that the I.G. prove that Petitioner was convicted of a
criminal offense
related to patient neglect or abuse and that the I.G.
has established that in
this case. Consequently, we reject Petitioner's
contention.
Finally, Petitioner objected to FFCL 23, which provides:
The exclusion imposed and directed against Petitioner is
for
five years, the minimum mandatory period for
exclusions
authorized pursuant to section 1128(a)(2) of the Act.
In addition to Petitioner's claim that the I.G. had not proven his
case
against her, which we have already discussed and rejected, she
noted
that in the case of George Iturralde, M.D, DAB CR218 (1992), the
same
ALJ had upheld an exclusion of only three years. Petitioner
asked
whether her exclusion should have been for the same period.
The
Iturralde case involved a permissive exclusion under section of
the
1128(b) of the Act; while HHS has discretion to set a period
shorter
than five years for cases falling under that section, Petitioner's
case
involves section 1128(a), which requires a minimum period of five
years.
See section 1128(c)(3)(B) of the Act.
3. CONSTITUTIONAL CLAIMS
Petitioner raised several arguments that could be characterized
as
constitutional claims. Unfortunately, the ALJ did not address any
of
them, even though nearly all of them had been addressed in prior ALJ
or
Board decisions which could easily have been cited and discussed by
the
ALJ. As we discuss below, none of Petitioner's constitutional
attacks
are meritorious, so we find that the delay in addressing them in
this
case has caused her no harm. We have divided the issues into
two
groups: (1) attacks on application of the Act or the
implementing
regulations as unconstitutional in this case; and (2)
contentions
related to whether Petitioner received due process in the
proceeding
before the ALJ.
A. There are no constitutional barriers to application of the Act
or
implementing regulations in this case.
Petitioner contended that her exclusion violated the double
jeopardy
clause of the Constitution because she was being punished twice for
the
same offense. She maintained that the amount of income she will
lose is
about $500,000, which renders the exclusion unreasonable and
punitive,
rather than remedial, in nature. 8/ Accordingly, she argued,
the
exclusion regulations and statute are unconstitutional as applied
and
the exclusion should be dismissed.
The constitutional ban on double jeopardy protects against
multiple
prosecutions for an offense by the same government. Section
1128(a) of
the Act does not contemplate a federal "prosecution" for an
offense
separately defined under federal law. Rather, it provides
that,
whenever an individual has been convicted in a federal, state, or
local
court, the Secretary must exclude that individual from Medicare
and
Medicaid. Thus, a mandatory exclusion does not raise the
double
jeopardy concerns of successive prosecutions by the same
government
based on the same conduct. See Schram, DAB 1372 at 15.
Once the
Secretary has determined that a conviction is of the type described
in
section 1128(a)(2), exclusion is mandatory. See Travers v.
Sullivan,
791 F.Supp. 1471 (E.D. Wash. 1992)
With respect to Petitioner's claim that the consequences of the
exclusion
are so great as to constitute a second punishment for the same
action, we
recognize that the Supreme Court addressed this concern in
United States v.
Halper, 490 U.S. 435 (1989). That case, however,
involved two federal
actions, a criminal case followed by a civil
monetary penalty action under
section 1128A of the Act. While several
courts have treated an
exclusion action as also raising the question of
multiple punishments for the
same conduct, they have concluded that the
double jeopardy clause was not
violated because the intent, as well as
the nature and effect, of the
exclusion was remedial rather than
punitive. Greene v. Sullivan, 731 F.
Supp. 838 (E.D. Tenn. 1990);
Manocchio v. Kusserow, 961 F.2d 1539 (11th Cir.
1992). The Greene court
noted the "apt comparison between the exclusion
remedy and professional
license revocations for lawyers, physicians, and real
estate brokers
which have the function of protecting the public and have
routinely been
held not to violate the double jeopardy clause." 731 F.
Supp. 838, 840.
In Manocchio the court looked at the legislative history of
this
provision and concluded that its primary goal was to protect present
and
future Medicare and Medicaid beneficiaries "from
incompetent
practitioners and from inappropriate or inadequate care."
961 F.2d
1539, 1542, citing S. Rep. No. 109, 100th Cong., 1st Sess. 1-2
(1987),
reprinted in 1987 U.S.C.C.A.N. 682. 9/ The purpose of the
exclusion in
the case before us is remedial -- to protect beneficiaries from
an
individual whose trustworthiness Congress has deemed questionable due
to
a conviction for patient neglect. Although the economic effects on
the
individual may be adverse, the Act requires that this protection must
be
provided for a period of five years. Accordingly, we
reject
Petitioner's double jeopardy claim.
Petitioner also contended that since the incident underlying
her
conviction happened in 1984, well before adoption of the statutory
and
regulatory provisions governing exclusions, the I.G. is applying the
law
in an unlawful ex post facto manner. We disagree. In order
for a
statute to be considered ex post facto, it must be a criminal or
penal
statute, and it must be retrospective in that it applies to
events
occurring before its enactment. See Betsy Chua, M.D. and Betsy
Chua,
M.D., S.C., DAB 1204 (1990). In this case, we have determined
that the
exclusion provision in the 1987 amendment to the Act is a civil
statute
imposing a remedial sanction, and not a criminal statute with a
penal
intent. Furthermore, as this Board has previously held,
Congress
intended that the 1987 amendment should be applied "prospectively to
all
convictions occurring on or after August 18, 1987, even though
the
circumstances leading to the conviction may have occurred prior to
that
date." See Francis Shaenboen, R.Ph., DAB 1249 (1991), at 6.
Thus, the
amended exclusion provision does not trigger the
constitutional
protection from ex post facto laws. See Schram at
18-19. The exclusion
in this case, which is based on a 1989 conviction,
is remedial in nature
and does not violate the prohibition on ex post facto
laws.
Petitioner also contended that the delay between the incident
underlying
her conviction and her exclusion by the I.G. denied her a
reasonable and
speedy disposition of her case, and that the exclusion should
therefore
be dismissed. The constitutional right to a speedy trial to
which
Petitioner alluded, however, applies to criminal cases and, as we
have
already discussed, this exclusion is remedial in nature.
Moreover,
since the exclusion is based on the conviction, which took place
on
February 24, 1989, rather than on the underlying incident, which
took
place in December 1984, the majority of the delay was attributable
to
the state criminal proceedings. Furthermore, Petitioner was able
to
receive reimbursement from the programs from which she was
ultimately
excluded during the period between her conviction and the
effective date
of her exclusion, June 13, 1991. See 6/13/91 request for
a hearing at
5. Consequently, this contention does not provide a basis
for dismissal
of the exclusion..B. There were no procedural defects in
this
proceeding that warrant dismissal of the exclusion.
Petitioner had numerous complaints about the conduct of the proceeding
in
her case. We have reviewed them all and determined that Petitioner
has
received, either at the ALJ stage or through this proceeding, all
the process
due her. Our analysis follows.
1. Petitioner denied "all facts based on earlier reports" where she
had
not been allowed to examine the original document and depose the
author
(app. br., attachment (att.) 1 at 2), denied authenticity of
all
documents submitted by the I.G. (id.), and challenged the
ALJ's
admission of I.G. exhibits. 10/22/92 submission at 1.
Petitioner's contentions on this score are without merit.
Petitioner
herself submitted two of the critical documents supporting her
exclusion
-- the factual basis used by the judge in determining whether to
accept
the parties' stipulation of plea and judgment and the stipulation
itself
-- as attachments to her initial appeal of the exclusion. See
6/13/91
request for a hearing, atts. 2 and 3. They are identical to the
copies
submitted by the I.G. Moreover, there is nothing on the face of
these
documents nor has Petitioner made any specific allegation or offered
any
evidence to indicate that they are not genuine copies of the
originals,
even though she clearly had access to at least the relevant
court
documents. Consequently, we do not credit her later broad
assertions
that the ALJ's admission of and reliance upon these documents
was
improper.
2. Petitioner objected to FFCL 22, which states:
There are no disputed issues of material fact in this case
and
summary judgment is appropriate.
Petitioner contended that summary judgment was not appropriate in her
case
since she disputed almost every issue of material fact and the I.G.
had not
met his burden of proof. App. br. at 3. Petitioner
also
complained about the ALJ's denial of her request for any and
all
documents used by HHS to suggest her involvement in patient neglect,
and
she claimed that the I.G. had not supplied her with documents to
satisfy
the regulations' requirements of a "quite fact-specific" prima
facie
case prior to the hearing process. Petitioner had requested a
ruling
from the ALJ that the I.G. not be allowed to submit the
required
documents during the hearing process.
We find that the ALJ's summary disposition of this case was proper.
As
stated above, the fact of Petitioner's conviction of a criminal
offense
which the ALJ found (and we agree) to be related to patient
neglect
provided the necessary legal basis for Petitioner's exclusion.
As noted
above, Petitioner's supposed challenge to the documents submitted by
the
I.G. was spurious, and none of Petitioner's alleged factual
disputes
were material and relevant to this critical issue. Thus,
summary
judgment was appropriate. Moreover, Petitioner's request that
the I.G.
be prohibited from introducing further evidence was based on her
faulty
premise that the I.G. failed to make a prima facie case with
the
exclusion notice.
3. Petitioner challenged FFCLs 18 and 19 which state:
18. Regulations published on January 29, 1992,
establish
criteria to be employed by the I.G. in determining to impose
and
direct exclusions pursuant to sections 1128(a)(1) and (2)
and
(b) of the Act.
19. The Secretary did not intend that the regulations
contained
in 42 C.F.R. Part 1001, and, in particular, 42 C.F.R.
.
1001.101, govern my decision in this case. However, even
if
these regulations did apply, they are consistent with the
manner
in which section 1128(a)(2) has previously been interpreted
by
the Departmental Appeals Board, and Petitioner would not
be
subjected to a different standard of liability, nor to
an
increased sanction.
Petitioner commented extensively on these regulations; attacked the
ALJ's
denial of her request that the regulations be spelled out in
"plain English;"
contended that the ALJ did not respond to her comments;
and stated that she
did not understand why the regulations were not
applicable here. She
argued that the exclusion should be dismissed
since the I.G. did not allege
that all of the criteria for exclusion in
these regulations were met, and she
requested that the assumption be
made that not all requirements were met and
the exclusion be dismissed.
App. br. at 3. Petitioner stated that she
believed that these
regulations were indeed applicable, and she asked that
this Board give
her any benefits arising from their application.
We have previously ruled in Bassim that the Secretary did not intend
for
the substantive provisions of these regulations to apply to
cases
pending before ALJs at the time of their adoption. Moreover, we
agree
with the ALJ that the regulations had to speak for themselves
(see
4/1/92 ruling); and that these regulations did not have any
substantive
effect in this case because Petitioner is being excluded under
a
mandatory provision for the minimum time required by statute. FFCL
19.
10/ The ALJ's ruling in his decision effectively responded
to
Petitioner's comments on the application of these regulations to
her
case. Finally, since these regulations were inapplicable,
Petitioner's
contentions about whether the I.G. met their requirements
are
irrelevant.
4. Petitioner contended that FFCL 24, which states simply that
"[t]he
exclusion imposed and directed against Petitioner by the I.G.
is
mandated by law," was based on incorrect conclusions that she was
unable
to defend against because she is not an attorney, was denied
counsel,
and was denied discovery. In fact, Petitioner presented
numerous
allegations and arguments in support of an overall contention that
she
did not receive a fair hearing on her exclusion case.
Petitioner
alleged in her reply brief before the ALJ that there existed
an
unreasonable bias against her as a 44 year old woman. She
sought
unsuccessfully to be allowed to face her accusers in open forum prior
to
exclusion; to have a different federal agency hear this case; to
have
another ALJ who was not familiar with the Tennant case assigned to
her
case; and to have different counsel assigned to represent the
I.G.
because of possible bias against her due to a pending personnel
dispute
between her husband and the regional office in which I.G. counsel
was
located. Petitioner contended that the process was unfair because
she
is not a lawyer and her request for agency-appointed counsel was
denied;
discovery was not permitted of the resumes of all counsel involved
in
her case (so that she could establish that she was at a disadvantage
due
to her lack of legal training); the Civil Remedies Division denied
her
9/27/91 request that she be advised any time she had a right that
she
had not exercised; and the ALJ and other attorneys involved did not
act
as "officers of the court" in explaining what evidence she was
supposed
to introduce. Petitioner also complained about the ALJ's
denial of her
request to have the Tennant decision translated into "plain
English" and
she asked this Board to explain the points as they apply in her
case.
Petitioner additionally complained that the ALJ failed to rule on all
of
her motions; that he ruled incorrectly on those which he did
address;
and that he erred in denying her request for immediate review of
those
requests which he denied.
Our review of the record in this proceeding shows that the ALJ stayed
this
case for a considerable period of time to allow Petitioner to
obtain counsel
and, when she determined to proceed pro se, he afforded
her great leeway in
presenting her case. His rulings concerning the
appropriate forum,
provision of counsel, and the proper role for himself
and that of the other
attorneys involved in the case were manifestly
correct. 11/ In
addition, his position that the Tennant decision had to
speak for itself was
also correct.
We note that despite Petitioner's lack of legal training she made a
number
of highly sophisticated requests and arguments throughout the
course of the
proceeding; thus, to the extent that she claimed that the
legal standards
applicable to her case were difficult to understand,
that appears to reflect
an unwillingness to accept that her
circumstances fall squarely within their
parameters. Given that
Petitioner's requests were numerous,
overlapping, and repetitious, we
find that the ALJ's failure to expressly
rule on each motion is not a
basis for overturning this exclusion. The
rationale provided by the
rulings of 10-9-91 and 4-1-92 and the ALJ's final
decision provided a
sufficient response to Petitioner's motions. For
example, the ALJ held
in his decision that the January 29, 1992 regulations
were not
applicable to Petitioner's case; thus, without expressly
acknowledging
each of Petitioner's comments on those regulations, the ALJ did
respond
to them. Moreover, the ALJ accurately informed Petitioner that
any
appeal of his decision, which we take to include his rulings,
was
appealable only to this Board after his final decision. We
have
reviewed these rulings and, with one exception in the area
of
discovery, agree with them all.
Petitioner sought discovery of documents relating to her case by
making
requests to the ALJ for discovery of information regarding the
Tennant
case and regarding her case from the Health Care
Financing
Administration, HHS, Region VIII, and the state of Colorado, and
by
making Freedom of Information Act (FOIA) and "RTP" requests. 12/
She
also requested that her case be dismissed because the I.G. had
not
responded to her FOIA request. In response, the ALJ ruled that he
had
no authority to order the I.G. to release documents under the FOIA
and
that he was not dismissing the exclusion on the basis that the I.G.
had
not complied with Petitioner's FOIA requests. The ALJ also ruled
that
he would not compel the production of any documents, including
those
pertaining to the Tennant case, because Petitioner had not
demonstrated
their relevancy or materiality. 4/1/92 ruling at 4.
As we have discussed in prior sections of this decision, the
specific
allegations about what Petitioner would hope to find in the
requested
files concerning agency findings on the general quality of care
at
Aspen, are indeed immaterial due to Petitioner's conviction of
a
specific offense of patient neglect. We therefore agree with the
ALJ
that Petitioner did not show the relevance and materiality of
the
documents she sought pertaining to herself. However, given the
ALJ's
characterization of the Tennant case as a "companion case," we
believe
that he should have, at minimum, supplied Petitioner with a copy of
the
record in the Tennant case so that she could attempt to distinguish
her
case. After all, such records are ordinarily available to the
public.
On the other hand, given that there is substantial evidence in
the
record for Petitioner's case, including her individual conviction
and
the factual basis for her plea, to support the ALJ's conclusion that
the
exclusion was proper, this procedural error was harmless.
4. FACTUAL DISPUTES
Petitioner alleged that certain factual statements made in the
ALJ
Decision were not accurate. We discuss each point below.
Petitioner objected to FFCL 1, which states:
Petitioner, a licensed nursing home administrator and
a
registered nurse, was, at all times relevant to this case,
the
Nursing Home Administrator at Aspen Care Center West (Aspen),
a
skilled nursing home.
Petitioner argued that the reference to the fact that she was a
registered
nurse should be deleted because it was not germane.
We conclude that the ALJ did not err in including the reference
to
Petitioner's status as a registered nurse. Petitioner did not deny
that
she was a registered nurse at the time the incident in
question
occurred. Thus, the FFCL is factually correct. Although
the ALJ did
not explain the relevance of her status as a registered
nurse,
Petitioner is not prejudiced by the inclusion of this
apparently
extraneous fact.
Petitioner also took exception to FFCL 2, which states:
As the principal executive officer and administrator at
Aspen,
Petitioner's responsibilities included, but were not limited
to,
maintaining liaison between the various functional areas
within
the facility, personnel and financial management, and
providing
a suitable framework for the administration of patient
care.
Petitioner was also responsible for the organization of
the
facility to carry out its responsibilities and the
development
of appropriate policies for patient care governing the
nursing,
medical, and other related services.
Petitioner argued that the I.G. had not proved that she was the
principal
executive officer of the nursing home. We conclude that
substantial
evidence supports the ALJ's finding that Petitioner was the
principal
executive officer. The record includes an 11/9/90 letter
from
Petitioner's then attorney which describes Petitioner as the
"corporate
representative in charge" of the nursing home. Request for a
hearing,
att. 1 at 1. In addition, the narrative description of Count
Four of
the indictment states that Petitioner was the "principal
executive
officer." I.G. Ex. 3 at 10.
Petitioner also took issue with FFCL 13, which states:
After L.G.'s transport, Petitioner and Vicky L. Tennant,
the
Director of Nursing at Aspen, advised the charge nurse that
the
nurse's note describing the incident did not need to mention
the
position in which L.G. was found. The charge nurse
was
responsible for preparing an incident report, which was
required
by Department regulation and Aspen internal policy. No
incident
report was ever prepared.
Petitioner asserted that, contrary to this FFCL, she did not advise
the
charge nurse that the note describing the incident did not need
to
mention the patient's position. Petitioner did not offer any
evidence
to support her assertion; however, Petitioner alleged that if the
ALJ
had granted her request for discovery of all documents relating to
her
case, she would have been able to provide relevant evidence.
We conclude that there is substantial evidence in the record to
support
this FFCL. This FFCL is based on the factual basis adopted by
the court
in accepting Petitioner's nolo plea (I.G. Ex. 4) which, as noted
above,
Petitioner stipulated to. Thus, even if Petitioner's request
for
discovery had been granted, any discovered evidence would have no
weight
in light of Petitioner's admission.
Petitioner additionally objected to FFCL 14, which states:
The medical records supervisor, Sharon Wasinger,
upon
discovering the lack of an incident report, has indicated
that
she told either Petitioner or Vicky L. Tennant that a
report
should be prepared. In response, Ms. Wasinger was told
that no
incident report was necessary, because "the incident was
not
unusual." Records Consultant Nancy Weber was told by
Ms.
Wasinger that she advised Vicky L. Tennant of the need to
file
an incident report.
Petitioner argued that there was no proof that Petitioner was told by
the
medical records supervisor that an incident report should be
prepared or that
she responded that it was not necessary.
We agree with Petitioner that this FFCL is not supported by the record.
As
support for this FFCL, the ALJ cited Petitioner's Exhibits 3 and 4.
However,
as the ALJ himself noted (at footnotes 2 and 5 to the ALJ
Decision),
Petitioner did not submit any exhibits for the record in this
case.
Moreover, the ALJ stated elsewhere in his decision that one fact
that
distinguished this case from Tennant was that "Records Consultant
Nancy Weber
was told, by Medical Records Supervisor Sharon Wasinger,
that Wasinger had
advised Ms. Tennant, but not Petitioner, of the need
to file an incident
report . . . ." Wasinger's statement that she
advised Tennant, but not
Petitioner, of the need to file an incident
report, is clearly inconsistent
with the conclusion that Wasinger told
"either Petitioner or Vicky L. Tennant
that a report should be
prepared." Accordingly, since this FFCL is
clearly unsupported, we are
striking it from the decision.
CONCLUSION
After a thorough review of all Petitioner's contentions and
the
administrative record in this proceeding, we affirm and adopt each
of
the ALJ's FFCLs with the exception of FFCL 14, which we strike
as
unsupported and unnecessary to the decision. Accordingly, we affirm
the
Petitioner's five-year exclusion from the Medicare and
Medicaid
programs.
___________________________ Judith
A.
Ballard
___________________________ Donald
F.
Garrett
___________________________ M.
Terry
Johnson Presiding Board Member
1. "State health care program" is defined in section 1128(h) of the
Act
and includes the Medicaid program under Title XIX of the Act.
Unless
the context indicates otherwise, we use the term "Medicaid" here
to
refer to all programs listed in section 1128(h).
2. There is no mention of the term "nunc pro tunc" in the
court
documents introduced by the I.G. in this case; this characterization
of
the dismissal was apparently introduced by the ALJ in his FFCL 17.
If
the dismissal was indeed nunc pro tunc then its effective date would
be
March 1990 rather than March 1991. As we discuss in the text,
however,
the critical date here is the date of the conviction, so that
this
misdescription of the dismissal is harmless error.
3. Petitioner also maintained that the Department of Health and
Human
Services (HHS) should be barred from bringing this exclusion
action
because the State Board of Examiners of Nursing Home
Administrators,
which Petitioner called "one of HHS' agents," had stated
after
reprimanding her that the reprimand fully resolved the complaint.
See
I.G. Ex. 12. While the nursing home (Aspen) may have been required
by
Colorado's Medicaid plan to employ a licensed nursing home
administrator
as a condition of participation in the program, that
requirement does
not make the state licensing board an HHS agent.
4. Petitioner claimed that the Act is unclear on this point and
that
the I.G.'s citation to three precedents calls the clarity of
this
definition into question. She also speculated that there must
be
contrary precedent. We know of none and, contrary to what
Petitioner
claimed, the mere fact that the I.G. cited case law does not
render the
Act's language unclear or suggest that contrary precedent
exists.
5. Throughout this decision we do not reproduce the ALJ's
citations
when we quote FFCLs.
6. Petitioner also objected to FFCL 7, which states:
Petitioner's plea was entered pursuant to a proposed
stipulation
for a deferred judgment and sentence for a period of one
year.
The only conditions imposed upon Petitioner were that she
not
violate the law and that she pay court costs if so ordered.
If
she complied with the terms of the deferred judgment, the
action
against her would be dismissed.
Petitioner argued that this FFCL is incomplete because it does not
state
that the case against her was ultimately dismissed. However,
since FFCL
17 specifically includes this fact, we reject this exception.
7. Petitioner also argued that the I.G. failed to show that
violation
of this regulation constituted a crime. However, this count
is
identified in the indictment as a misdemeanor (see I.G. Ex. 3), and
the
stipulation for deferred judgment and sentence refers to this as
a
criminal action (I.G. Ex. 7). Thus, we reject this argument.
8. We note that Petitioner's estimate for the cost to her of
this
exclusion is apparently based on an estimate of her expected salary
and
benefits as a nursing home administrator for five years. App. br.,
att.
1 at 2. Petitioner's exclusion, however, only bars her
receiving
compensation from federally funded programs; it does not bar
her
employment as a nursing home administrator or registered nurse
for
employers in other circumstances.
9. For a more thorough discussion of these cases, see Schram at 15-18.
10. In contrast, the provisions governing permissive exclusions
were
substantively changed by the new regulations. For example, the
new
regulations established for the first time a "benchmark" length of
three
years for permissive exclusions. See 57 Fed. Reg. 3298, 3304
(January
29, 1992).
11. For example, the ALJ explained in his 4/1/92 ruling, "In
my
position as the ALJ presiding over this case, it is not my role
to
provide legal counsel or advise either party."
12. Petitioner did not explain what an "RTP"
request