Department of Health and Human Services DEPARTMENTAL APPEALS BOARD Civil Remedies Division |
|
IN THE CASE OF | |
Eleanor D'Angelo, L.P.N., |
DATE: March 6, 2001 |
- v - |
|
The
Inspector General
|
Docket No.C-00-385
Decision No. CR748 |
DECISION | |
By letter dated February 29, 2000, Eleanor
D'Angelo, L.P.N. (Petitioner) was notified by the Inspector General (I.G.),
U.S. Department of Health and Human Services (DHHS), of the decision to
exclude her for a period of five years from participation in the Medicare,
Medicaid, Maternal and Child Health Services Block Grant and Block Grants
to States for Social Services programs.(1)
The I.G. explained that the five-year exclusion was mandatory under sections
1128(a)(2) and 1128(c)(3)(B) of the Social Security Act (Act) because Petitioner
had been convicted in the District Court of Nassau County, First District,
State of New York, of a criminal offense relating to the neglect or abuse
of patients in connection with the delivery of a health care item or service. 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. The I.G. submitted a brief and four proposed exhibits
(I.G. Exs. 1-4). Petitioner did not object to these exhibits and I therefore
admit them into evidence. Petitioner submitted a response brief and no
proposed exhibits. 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.
APPLICABLE LAW 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 period of five years.
PETITIONER'S ARGUMENTS Petitioner contends that her conviction for a "violation"
of the New York Penal Law is not the legal equivalent of a conviction
for a "criminal" offense and cannot be the basis for an exclusion under
section 1128(a)(2) of the Act. In particular, Petitioner maintains that
her conviction for harassment does not relate to conduct which rises to
the level of "criminal" misconduct. She maintains that, although the original
indictment alleged facts and specified offenses which may constitute criminal
offenses, she in fact pled guilty to lesser offenses which do not constitute
criminal offenses and also do not establish the elements of patient abuse
or mistreatment. In her brief, Petitioner notes that, under New York State
law, crimes are defined as "felonies or misdemeanors" and consequently,
her conviction for an offense defined as a "violation" under New York
State law does not constitute a criminal offense within the scope of the
Act.
FINDINGS OF FACT AND CONCLUSIONS OF LAW 1. At all times relevant herein, Petitioner was a licensed
practical nurse in the State of New York. I.G. Ex. 4. 2. During the period at issue, Petitioner was employed
as a licensed practical nurse at Meadowbrook Care Center, a nursing home
facility in Freeport, New York. I.G. Exs. 2, 4.
3. On May 18, 1998, a criminal accusation was filed in
the District Court of Nassau County, State of New York, against Petitioner,
who was charged with one count of "Wilful Violation of the Public Health
Law" in violation of �� 12-b(2) and 2803-d(7) of the New York Public Health
Laws. I.G. Ex. 4. 4. The accusation charged that, on February 20, 1998 at
Meadowbrook Care Center where she was employed as a licensed practical
nurse, Petitioner did wilfully violate the New York Public Health Law
"by forcing back the head of nursing home resident, by intentionally pulling
her hair back and repeatedly forcing medication into her mouth, thereby
committing an act of physical abuse of said resident." I.G. Ex. 4. 5. On October 10, 1998, Petitioner pled guilty to one
count of harassment in the second degree in violation of New York Penal
Law � 240.26. I.G. Ex. 2 at 2. 6. On October 10, 1998, the court sentenced Petitioner
to a one-year conditional discharge. I.G. Ex. 2. 7. On February 29, 2000, 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. I.G. Ex. 1. 8. Petitioner's guilty plea constitutes a conviction within
the meaning of sections 1128(i)(1) and (3) of the Act. 9. Petitioner's conviction constitutes a conviction for
a "criminal offense" as that term is used in section 1128(a)(2) of the
Act. 10. Petitioner's conviction for harassment, relating to
her actions involving a patient in her care, was 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. 11. The mandatory minimum period for an exclusion pursuant
to sections 1128(a)(2) and 1128(c)(3)(B) of the Act is five years. 12. The Secretary has delegated to the I.G. the duty to
determine and impose exclusions pursuant to section 1128(a) of the Act.
13. 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.
DISCUSSION To justify excluding an individual pursuant to section
1128(a)(2) of the Act, the I.G. must prove that:
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
deemed to have been 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. Act, section 1128(i). This section establishes four alternative definitions
of the term "convicted." An individual or entity need only satisfy 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 sections 1128(i)(1) and (3)
of the Act. The record reflects that Petitioner admitted her guilt in
court. The court then accepted Petitioner's guilty plea and sentenced
her. Petitioner was therefore "convicted" of a criminal offense within
the meaning of sections 1128(i)(1) and (3) of the Act. Carlos E. Zamora,
M.D., DAB CR22 (1989), aff'd, DAB No. 1104 (1989); Anthony
A. Tommasiello, DAB CR282 (1993). I further find that Petitioner's conviction for harassment constitutes a conviction for a "criminal" offense within the scope of the Act and is not merely a non-criminal "violation" as Petitioner claims. In Carmencita Alhabsi, DAB CR555 (1998), I sustained a five-year exclusion imposed against the petitioner, a nurse employed in a nursing home. In Alhabsi, the petitioner was found subject to exclusion under section 1128(a)(2) based on her convictions for harassment in the second degree of a nursing home patient, in violation of New York Penal Law � 240.26, and one count of disorderly conduct, in violation of New York Penal Law � 240.20. DAB CR555 at 3. In that case, I stated that "[i]t is clear that Federal law supercedes State law for purposes of determining whether an individual has been convicted of a criminal offense." Id. at 5; see also, Diaz v. Chasen, 642 F.2d 764, 765 (5th Cir. 1981); Bowles v. Seminole Rock & Sand Co., 325 U.S. 410 (1945); Dickerson v. New Banner Institute, Inc., 460 U.S. 103, 112 (1983). Therefore, whether New York State treats convictions for violations of the Penal Code differently than a conviction for misdemeanors or felonies is not relevant to the issue of whether Petitioner's conviction triggered the exclusion provisions of section 1128(a)(2) of the Act. Section 1128(a)(2) of the Act requires that an individual be convicted of a "criminal offense;" it does not specify that individuals may be excluded only if they are convicted of misdemeanors or felonies. See, e.g., Glen E. Bandel, DAB CR261 (1993) ("Because section 1128(a)(2) does not specify a criminal offense of a particular grade, the I.G.'s authority to exclude Petitioner is not affected by the fact that the offense was a simple misdemeanor."). The facts in this case support
the conclusion that Petitioner was convicted of a "criminal offense."
A wilful violation of the health laws is punishable by imprisonment or
a fine. New York Public Health Law, section 12-b(2). Harassment, the charge
to which Petitioner pled guilty, is codified in the New York Penal Code.
As part of her sentence, Petitioner faced the possibility of time in jail
if she failed to fulfill the conditions of her sentence.
On these facts, I find that Petitioner's offense constitutes a "criminal
offense" within the scope of section 1128(a)(2) of the Act. See
Alhabsi at 6. In a similar case, Janet Wallace, L.P.N., DAB CR155
(1991); aff'd, DAB No. 1326 (1992), an appellate panel of the Departmental
Appeals Board (DAB) upheld a five-year exclusion against a nurse who failed
to administer a dose of medication to a residential care facility patient
and then made a false entry in the patient's chart to indicate that she
had given the medication as prescribed. The petitioner was charged with
violation of � 12-b(2) of the New York State Public Health Law. She pled
guilty to this charge and was sentenced to community service and conditional
discharge.
|
|
JUDGE | |
Joseph K. Riotto Administrative Law Judge
|
|
FOOTNOTES | |
1. In this decision, I use the term "Medicaid" to refer to these State health care programs. | |