DECISION

Petitioner, Yvette Greaves, is excluded from participation in Medicare, Medicaid, and all other federal health care programs pursuant to section 1128(a)(2) of the Social Security Act (the Act) (42 U.S.C. � 1320a-7(a)(2)), effective June 20, 2005, based upon her conviction of a criminal offense related to the neglect or abuse of a patient, in connection with the delivery of a health care item or service. There is a proper basis for exclusion. Petitioner's exclusion for five years is mandatory pursuant to section 1128(c)(3)(B) of the Act (42 U.S.C. � 1320a-7(c)(3)(B)).

I. Background

The Inspector General for the Department of Health and Human Services (the I.G.) notified Petitioner by letter dated May 31, 2005, that she was being excluded from participation in Medicare, Medicaid, and all federal health care programs for the minimum statutory period of five years, pursuant to section 1128(a)(2) of the Act. The basis cited for Petitioner's exclusion was her conviction in the Suffolk County First District Court of the State of New York of a criminal offense related to neglect or abuse of patients, in connection with the delivery of a health care item or service. See Act, section 1128(a)(2); 42 U.S.C. � 1320a-7(a)(2); and 42 C.F.R. � 1001.101(b).

The I.G. filed a motion for summary judgment and supporting brief on November 11, 2005 (I.G. Brief), with I.G. Exhibits (I.G. Exs.) 1 through 3. Petitioner filed an opposition to the motion for summary judgment on December 9, 2005 and amended opposition and brief on December 22, 2005 (P. Brief), with no exhibits. The I.G. filed a reply brief on January 6, 2006 (I.G. Reply). No objection has been made to the admissibility of any of the proposed exhibits and I.G. Exs. 1 through 3 are admitted.

II. Discussion

The following findings of fact are based upon the uncontested and undisputed assertions of fact in the pleadings and the exhibits admitted. Citations may be found in the analysis section of this decision if not included here.

The Secretary of the Department of Health and Human Services (the Secretary) has by regulation limited my scope of review to two issues:

42 C.F.R. � 1001.2007(a)(1).

In this case, there is no issue as to the reasonableness of the proposed period of exclusion as it is the minimum period of five years mandated by the Act. The standard of proof is a preponderance of the evidence and there may be no collateral attack of the conviction that is the basis for the exclusion. 42 C.F.R. � 1001.2007(c) and (d). Petitioner bears the burden of proof and persuasion on any affirmative defenses or mitigating factors and the I.G. bears the burden on all other issues. 42 C.F.R. � 1005.15(b) and (c).

Petitioner's right to a hearing by an Administrative Law Judge (ALJ) and judicial review of the final action of the Secretary is provided by section 1128(f) of the Act (42 U.S.C. � 1320a-7(f)). Petitioner's request for a hearing was timely filed and I do have jurisdiction.

Pursuant to section 1128(a)(2) of the Act, the Secretary must exclude from participation in Medicare and Medicaid programs any individual convicted of a criminal offense related to the neglect or abuse of patients, in connection with the delivery of a health care item or service.

Section 1128(c)(3)(B) of the Act provides that an exclusion imposed under section 1128(a) of the Act shall be for a minimum period of five years. Pursuant to 42 C.F.R. � 1001.102(b), the period of exclusion may be extended based on the presence of specified aggravating factors. Only if the aggravating factors justify an exclusion of longer than five years may mitigating factors be considered as a basis for reducing the period of exclusion to no less than five years. 42 C.F.R. � 1001.102(c).

Pursuant to section 1128(f) of the Act, a person subject to exclusion has a right to reasonable notice and an opportunity for a hearing. The right to hearing before an ALJ is accorded to a sanctioned party by 42 C.F.R. � 1005.2 and the rights of both the sanctioned party and the I.G. to participate in a hearing are specified in 42 C.F.R. � 1005.3. Either or both parties may choose to waive appearance at an oral hearing and to submit only documentary evidence and written argument for my consideration. 42 C.F.R. � 1005.6(b)(5). The ALJ may also resolve a case, in whole or in part, by summary judgment. 42 C.F.R. � 1005.4(b)(12). Summary judgment is appropriate and no hearing is required where either: there are no disputed issues of material fact and the only questions that must be decided involve application of law to the undisputed facts; or, the moving party must prevail as a matter of law even if all disputed facts are resolved in favor of the party against whom the motion is made. A party opposing summary judgment must allege facts which, if true, would refute the facts relied upon by the moving party. See e.g., Fed. R. Civ. P. 56(c); Garden City Medical Clinic, DAB No. 1763 (2001); Everett Rehabilitation and Medical Center, DAB No. 1628, at 3 (1997) (in-person hearing required where non-movant shows there are material facts in dispute that require testimony); Thelma Walley, DAB No. 1367 (1992); see also, New Millennium CMHC, DAB CR672 (2000); New Life Plus Center, DAB CR700 (2000).

There are no genuine issues of material fact in dispute in this case as all the facts material to disposition of this case were admitted to by Petitioner in connection with her plea of guilty to the offense involved and her admissions are recorded in a transcript admitted as evidence without objection by Petitioner. The sole issue in dispute before me is whether the facts Petitioner admitted show that Petitioner was convicted of an offense that was related to patient neglect or abuse. The issue before me for resolution is an issue of law, no material facts are in dispute, and summary judgment is appropriate.

The I.G. cites section 1128(a)(2) of the Act as the basis for Petitioner's mandatory exclusion. The statute provides:

The statute requires the Secretary to exclude from participation any individual or entity: (1) convicted of a criminal offense; (2) where the offense is related to neglect or abuse; (3) the neglect or abuse was of a patient; and (4) the neglect or abuse occurred in connection with the delivery of a health care item or service. This section, unlike section 1128(a)(1), does not require that the delivery of the health care item or service was under the Medicare or Medicaid programs.

Petitioner does not dispute that she was convicted of a criminal offense within the meaning of section 1128(i) of the Act. Petitioner does not dispute that the conduct she admitted to when pleading guilty involved a patient. Petitioner also does not dispute that the conduct she admitted to when pleading guilty was related to the delivery of a health care item or service. Petitioner argues that it is necessary to draw a distinction between the inchoate crime of an attempt to endanger the welfare of an incompetent or physically disabled person, the crime of which she was convicted pursuant to her plea, and the crime of actually endangering such a person. P. Brief at 6-7. Petitioner argues that only if a person is convicted of the latter offense is he or she subject to exclusion pursuant to section 1128(a)(2) of the Act. Petitioner's argument is without merit based upon the plain language of the Act which requires exclusion for an offense relating to the neglect or abuse of a patient. I have no difficulty concluding that an attempt to endanger the welfare of an incompetent or disabled person in the manner to which Petitioner admitted in connection with her plea, is an offense related to the abuse of that patient. Cf. Kenneth M. Behr, DAB No. 1997, at 3-4 (2005) (section 1128(a)(3) encompasses attempted embezzlement as an offense related to embezzlement); see 42 C.F.R. � 488.301 (abuse and neglect in the context of long-term care facilities defined). Certainly, an attempt to endanger relates to neglect or abuse and one who attempts to endanger poses a threat to health care recipients just as one who actually succeeds in neglecting or abusing a patient. Both the attempt to neglect or abuse and actual neglect or abuse are repugnant to the purposes of the Act.

Petitioner has not disputed that the minimum period of an exclusion pursuant to section 1128(a)(2) is five years as mandated by section 1128(c)(3)(B), if I determine Petitioner is subject to mandatory exclusion. I have found there is a basis for Petitioner's exclusion pursuant to section 1128(a)(2), and the minimum period of exclusion is thus five years.

III. Conclusion

For the foregoing reasons, Petitioner is excluded from participation in Medicare, Medicaid and all federal health care programs for a period of five years, effective June 20, 2005, 20 days after the May 31, 2005 I.G. notice of exclusion.

Administrative Law Judge