Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD
Civil Remedies Division
In the Case of: Venerando S. Santos, Petitioner,
- v. -
The Inspector General.
DATE: June 1, 1993
Docket No. C-92-134
Decision No. CR268
DECISION
By letter dated June 9, 1992, Venerando S. Santos, the Petitioner herein, was
notified by the Inspector
General (I.G.), U.S. Department of Health & Human Services (HHS), that it
had been decided to exclude
him for a period of five years from participation in the Medicare program and
from participation in the
State health care programs mentioned in section 1128(h) of the Social Security
Act (Act). (I use the term
"Medicaid" in this Decision when referring to the State programs.)
The I.G. explained that the five-year
exclusion was mandatory under sections 1128(a)(2) and 1128(c)(3)(B) of the Act
because Petitioner had
been convicted of a criminal offense related to patient abuse, in connection
with the delivery of health care.
Petitioner filed a timely request for review of the I.G.'s action, and the
I.G. moved for summary
disposition.
Because I have determined that there are no material and relevant factual issues
in dispute (i.e., the only
matter to be decided is the legal significance of the undisputed facts), I have
granted the I.G.'s motion and
decide the case on the basis of written submissions in lieu of an in-person
hearing. 1/
Thus, I affirm the I.G.'s determination to impose and direct the exclusion
of 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 related to the 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 at least five years.
PETITIONER'S ARGUMENT
Petitioner contends that any injuries suffered by the patient were accidental.
Petitioner contends further
that he did not intend to harm this individual, that he regrets his action,
and that he has always worked hard
caring for his patients. Petitioner contends also that he has never committed
any other crime, and that he
has complied with the terms of his probation. Finally, Petitioner contends that
his family will be destitute
if the effect of the exclusion is to bar him from employment in his field. 2/
FINDINGS OF FACT AND CONCLUSIONS OF LAW
1. At the time he committed the criminal offense which is the basis of this
proceeding, Petitioner was a
C.N.A., employed at the Eden West Convalescent Hospital (EWCH), in Hayward,
California. P. Br. at 2;
I.G. Ex. 1, 2, 3.
2. EWCH personnel informed public officials that an elderly, male patient at
the facility had been
observed bleeding from a head wound and accusing Petitioner of hitting him.
I.G. Ex. 1, 2.
3. In September, 1991, a two count misdemeanor complaint was filed against
Petitioner. Count one
alleged that, on or about April 10, 1991, Petitioner did willfully and unlawfully
use force and violence on
the patient (a violation of California Penal Code 242). Count two alleged that
Petitioner, knowing that the
patient was elderly, willfully and unlawfully caused him to suffer, by inflicting
on the patient unjustifiable
physical pain and mental suffering. Count two alleged further that Petitioner,
who had care and custody of
the patient, willfully and unlawfully caused the patient to be injured (a violation
of California Penal Code
368(b)). I.G. Ex. 2.
4. Petitioner acknowledged that the elderly male who had accused Petitioner
of hitting him "was
[Petitioner's] patient at Eden West Convalescent Hospital." P. Br. at 2.
5. Petitioner stated that he struck the patient with a bell cord, but that it was an accident. P. Br. at 2.
6. On September 24, 1991, in Alameda County Municipal Court, Petitioner pleaded
no contest to count
two of the misdemeanor complaint. Count one was dismissed. I.G. Ex. 2, 3.
7. The court accepted the plea and sentenced Petitioner to three years' "conditional
release," and five days
of volunteer work. I.G. Ex. 3.
8. The State of California has revoked Petitioner's certification as a C.N.A.
Furthermore, the State
asserted that, based upon the serious nature of Petitioner's alleged offense,
it would not hold the license
revocation in abeyance pending a formal administrative hearing. I.G. Ex. 6.
9. On March 11, 1992, pursuant to Petitioner's conviction, California Medicaid
indefinitely suspended
Petitioner from the Medi-Cal program. I.G. Ex. 5.
10. The Secretary of HHS delegated to the I.G. the authority to determine and
impose exclusions pursuant
to section 1128 of the Act. 48 Fed. Reg. 21662 (1983).
11. Petitioner was "convicted" of patient abuse, within the meaning
of the mandatory exclusion provisions
of the Act. Findings 1 - 7.
12. The individual whom Petitioner abused was a "patient" within
the meaning of the mandatory
exclusion provisions of the Act. Findings 1, 2, 4.
13. The facts that the attack upon the elderly male for which Petitioner was
convicted took place in a
health care facility where the elderly male was a patient, and that Petitioner
was an employee of the facility
whose duty was to assist in the care of patients, establish that Petitioner's
criminal offense was related to
the delivery of health care within the meaning of the mandatory exclusion provisions
of the Act. Findings
1 - 7.
14. The five-year exclusion imposed and directed by the I.G. against Petitioner
is appropriate and federal
law and regulations provide that the exclusion cannot be waived or reduced by
the I.G. or by me, under the
established facts. Findings 1 - 13; Act, sections 1128(a)(2) and 1128(c)(3)(B).
DISCUSSION
Section 1128(a)(2) of the Act, relied upon by the I.G. to exclude Petitioner,
requires, initially, that the
person to be excluded must have been convicted of a crime. Petitioner, a C.N.A.,
was accused of
intentionally injuring an elderly patient at EWCH, during the time that Petitioner
was supposed to be
performing his professional duties by caring for such individual. Finding 3.
Petitioner pled no contest to the charge contained in count two of the misdemeanor
complaint. The court
accepted the plea and Petitioner was sentenced. Section 1128(i)(3) of the Act
expressly provides that when
an individual enters a no contest plea to a criminal charge, and such plea has
been accepted by the court,
the individual in question will be considered to have been "convicted",
within the meaning of the
mandatory exclusion provisions of the Act.
Section 1128(a)(2) further requires that the individual who has been neglected
or abused must have been a
"patient" and that the criminal offense must be related to the delivery
of health care.
The first point -- that the elderly male was indeed a patient at EWCH -- is
conceded by Petitioner. Finding
4.
As to the last statutory criterion, I conclude that the facts that the attack
took place in a health care facility
where the victim was a patient, and that the perpetrator was an employee of
such facility whose duty was to
assist in the care of patients, establish that the criminal offense was related
to the delivery of health care.
Findings 1 - 7.
Lastly, Petitioner maintains that he did not intend to harm the patient, that
he regrets his action, and that
other than this incident he has no criminal record and is complying with the
terms of his probation.
However, under section 1128(a)(2) of the Act, proof that an appropriate criminal
conviction has occurred
ends the inquiry as to whether mandatory exclusion is justified. Thus, this
judge cannot look beyond the
fact of conviction or consider evidence in mitigation of a five-year mandatory
exclusion. It is also well
established in case precedent that the intent of the individual committing the
criminal offense is not
relevant. Summit Health Limited, DAB 1173 at 9 (1990). Thus, Petitioner's explanations
are not relevant
or material to the outcome of this case.
CONCLUSION
Sections 1128(a)(2) and 1128(c)(3)(B) of the Act require that Petitioner be
excluded from the Medicare
and Medicaid programs for a period of at least five years because of his conviction
of criminal patient
abuse, related to the delivery of health care.
Accordingly, I sustain the five-year exclusion imposed by the I.G.
___________________________
Joseph K. Riotto
Administrative Law Judge
1. On October 28, 1992, the I.G. submitted a motion for summary disposition
accompanied by eight
exhibits. I refer to the I.G.'s motion for summary disposition as I.G. Br. (at
page). I refer to the I.G.'s
exhibits as I.G. Ex. (at page). On November 30, 1992, the I.G. requested that
I.G. Ex. 2, the misdemeanor
complaint against Petitioner, be replaced with a more complete copy. In the
absence of objection, I am
granting the I.G.'s request. Petitioner submitted his response by letter of
January 28, 1993. Petitioner did
not submit any exhibits. I refer to Petitioner's response as P. Br. (at page).
The I.G. submitted a reply brief
on March 30, 1993. I refer to the I.G.'s reply brief as I.G. R. Br. (at page).
2. In his January 28, 1993 response, Petitioner states that he is asking the
I.G. ". . . not to revoke [his]
certified nursing assistant license. . ." P. Br. at 3. Petitioner appears
to believe that the I.G. has the
authority to revoke his certified nursing assistant (C.N.A.) license. However,
the I.G. does not have this
authority. Under section 1128(a)(2) of the Act, the I.G.'s authority is limited
to excluding Petitioner from
participation in the Medicare program and directing his exclusion from participation
in the Medicaid
program. It is up to the California licensing authorities, who granted Petitioner
his C.N.A. license, to
revoke that license. See, I.G. Ex. 6.