Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD
Civil Remedies Division
In the Case of: Ella Janice McGee, Petitioner,
- v. -
The Inspector General.
DATE: August 7, 1992
Docket No. C-92-083
Decision No. CR221
DECISION
By letter dated February 10, 1992, Ella Janice McGee, the Petitioner herein,
was notified by the Inspector
General (I.G.) of the Department of Health & Human Services (HHS) that it
had been determined to
exclude her for a period of five years from participation in the Medicare program
and the state health care
programs (referred to collectively in this decision as Medicaid) defined in
section 1128(h) of the Social
Security Act (the Act). This exclusion, the I.G. stated, was mandated by section
1128(a)(2) of the Act and
arose out of Petitioner's conviction of a criminal offense involving the neglect
or abuse of patients.
By undated letter received on March 10, 1992, Petitioner requested that the
I.G.'s determination be
reviewed by an administrative law judge.
The I.G. moved for summary disposition of the case. In a letter dated June
18, 1992, Petitioner requested
an in- person hearing to show "...that the investigation report [I.G. Exhibit
3]... was altered and
reconstructed after my trial;" that "I was not tried on this evidence;"
and that "this statement is not the
original statement made by Mrs. Lela Wright at my trial...." Petitioner's
substantive arguments are set forth
below.
I conclude that Petitioner's allegations, even if provable, are legally irrelevant;
that, even without regard to
I.G. Exhibit 3, undisputed evidence shows that the mandatory exclusion provisions
of Section 1128(a)(2)
control this case; that an in-person hearing is unwarranted since there are
no material factual disputes; and
that summary disposition in favor of the I.G. is justified.
Law
Section 1128(a)(2) of the Act makes it mandatory for the Secretary of HHS (or
his designee) to exclude
any person who has been convicted, under federal or State law, of a criminal
offense relating to the neglect
or abuse of patients, in connection with the delivery of health care, from participation
in the Medicare and
Medicaid programs.
Section 1128(c)(3)(B) of the Act provides that the minimum period of exclusion
for a offense of this nature
is five years.
Findings of Fact and Conclusions of Law 1/
1. It is undisputed that, during the period relevant to this case, Petitioner
was employed as a nursing aide at
the Valley View Care Center (the home).
2. On September 11, 1990, a complaint was filed in the Municipal Court of the
City of Anson, Texas,
charging Petitioner, with having slapped a (named) 74 year old Alzheimers'patient
who was being cared for
at the home.
I.G. Ex. 1
3. Petitioner appeared in Anson Municipal Court on December 5, 1990 and entered
a plea of not guilty to
the charge set forth in the complaint. She waived her right to a jury trial.
I.G. Ex. 2
4. On December 5, 1990, the court found Petitioner "guilty of the offense
as charged in the complaint" and
imposed a fine. I.G. Ex. 2
5. The Secretary of HHS delegated to the I.G. the authority to impose exclusions
pursuant to section 1128
of the Act. 48 Fed. Reg. 21662 (May 13, 1983).
6. Section 1128(a)(2) of the Act mandates the exclusion, for a minimum period
of five years, of any
person who has been convicted of a criminal offense relating to the neglect
or abuse of patients in
connection with the delivery of a health care item or service.
7. Petitioner's conviction for assaulting a resident of the home who was being
cared for by Petitioner and
her coworkers constitutes a criminal conviction relating to patient abuse in
connection with the delivery of
a health care service within the meaning of section 1128(a)(2) of the Act.
8. Petitioner cannot use the HHS administrative appeal process to collaterally
attack her prior criminal
conviction and, thus, is not entitled to relief in this proceeding based on
her contention that she was falsely
accused and did not slap the patient, or her argument that her action actually
was self-defense.
9. The Act requires persons who violate section 1128(a)(2) to be excluded for
a minimum of five years,
which period cannot be waived or lessened.
Argument
Petitioner contends that she was innocent and that another employee of the
home, motivated by personal
animus, had falsely accused her. Petitioner acknowledges raising her hand toward
the patient in question,
but explains that she did so to protect herself from the patient, who was often
violent. Lastly, Petitioner
insists that her trial was unfair because she was unrepresented and misled,
and because the judge was
biased against her.
Discussion
Undisputed evidence shows that Petitioner was charged with unlawfully slapping
an elderly patient while
Petitioner was working as an aide in the nursing home where the patient in question
resided, and that,
following a bench trial, she was convicted of such offense.
Petitioner's conviction for doing physical violence to a patient in her care
satisfies the statutory requirement
of section 1128(a)(2) that there be a conviction "...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(a)(2) is controlling wherever it is shown that an appropriate
criminal conviction has
occurred. Dewayne Franzen, DAB 1165 (1990). HHS does not look beyond the fact
of conviction and a
Petitioner may not utilize its administrative proceedings to collaterally attack
the criminal conviction by
seeking to show that she did not do the act charged or that there was no criminal
intent. Richard G. Philips,
D.P.M., DAB CR133 (1991). If Petitioner believes that her criminal conviction
was improperly tainted by
judicial bias, lack of counsel, or false evidence, her recourse may be within
the State court system, but not
here. Peter J. Edmonson, DAB 1330 (1992).
Once section 1128(a)(2) is determined to be applicable, the statute requires
that the guilty individual be
excluded for a minimum period of five years. There is no authority in law or
regulation for an
administrative law judge's waiving or reducing this minimum sanction.
Conclusion
Petitioner's conviction of a criminal offense involving patient abuse mandates
her exclusion from the
Medicare and Medicaid programs for a period of five years.
__________________________
Joseph K. Riotto
Administrative Law Judge
1. The I.G. submitted five numbered documents as exhibits, plus an affidavit
from William J. Hughes,
which the I.G. appears to also regard as evidence. I admit exhibits 1, 2, 4,
and 5. They are referred to
herein as "I.G. Ex. 1, 2, 4, and 5." The Hughes affidavit, which is
a first-hand explanation of the process
whereby the I.G.'s office excluded Petitioner, is also admissible as evidence.
Because the authenticity of
I.G. Exhibit 3 -- the Texas Attorney General's "Criminal Investigative
Report" -- is in question, I do not
admit it.
In my Order of April 24, 1992, I afforded the parties the opportunity to submit
evidence and argument.
Petitioner offered no evidence. Both parties submitted extensive argument.