Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD
Civil Remedies Division
In the Case of: David A. Barrett, Petitioner,
- v. -
The Inspector General.
DATE: October 14, 1993
Docket No. C-93-113
Decision No. CR288
DECISION
This matter is before me on the request for hearing filed by David A. Barrett
(Petitioner) on August 25,
1993, to contest his exclusion from participating in Medicare and State health
care programs. 1/ Petitioner
was informed by the Inspector General (I.G.) of the Department of Health and
Human Services that the
exclusion was being imposed under section 1128(a)(2) of the Social Security
Act (Act) because Petitioner
had been convicted in Cerro Gordo County, Iowa, of a criminal offense relating
to neglect or abuse of
patients in connection with the delivery of a health care item or service. The
exclusion is for a period of
five years.
During the prehearing conference held on September 3, 1993, the parties agreed
that there is no material
fact in dispute and that this case should be decided on cross motions for summary
disposition. In addition,
the parties jointly moved for an expedited briefing schedule. During the conference,
I granted their motion
to expedite proceedings.
Shortly after the conclusion of the prehearing conference, I received and considered
Petitioner's motion to
stay the exclusion pending resolution of this administrative hearing. Petitioner
cited 5 U.S.C. 705 for
support of his contention that, when an agency finds that justice so requires,
it may postpone the effective
date of an action taken by it, pending judicial review. I ruled that the Secretary
has not delegated to
administrative law judges the authority to stay exclusions. I therefore denied
Petitioner's motion for me to
stay the exclusion. September 8, 1993 Prehearing Order and Schedule for Filing
Motions for Summary
Disposition, pp. 2 - 3.
Having considered the parties' cross-motions for summary disposition, the materials
submitted in support
thereof, 2/ the parties' joint stipulations, and the applicable law, I grant
the I.G.'s motion for summary
disposition. For the reasons that follow, I conclude that the I.G. has the authority
to exclude Petitioner
pursuant to section 1128(a)(2) of the Act and that the five-year exclusion imposed
by the I.G. is mandated
by law.
ISSUES
The issue is whether Petitioner is subject to the minimum mandatory five-year
exclusion provisions of
sections 1128(a)(2) and 1128(c)(3)(B) of the Act. Under this issue, I must resolve
the following questions:
1. Whether Petitioner was "convicted" of a criminal offense within
the meaning of section
1128(a)(2) and section 1128(i) of the Act;
2. Whether the criminal offense of which Petitioner was convicted was "in
connection with the
delivery of a health care item or service;" and
3. Whether Petitioner was convicted of a criminal offense relating either
to the "neglect of
patients" or the "abuse of patients."
FINDINGS OF FACT AND CONCLUSIONS OF LAW (FFCL)
A. Findings of Fact and Conclusions of Law by Agreement of the Parties
1. Petitioner is the Director of Residential Services for Handicap Village,
a residential and vocational
center which provides services for mentally and physically disabled individuals.
Joint Stipulations, p. 1. 3/
2. In February of 1992, Petitioner was informed by a female staff member that
a Handicap Village resident
had complained of being sexually abused by a certain male staff member. Joint
Stipulations, p. 1.
3. Petitioner completed an investigation of the resident's allegation and ultimately
determined that the
resident's charge was unsubstantiated. Although Petitioner was a mandatory reporter
under Iowa Code
235B, Petitioner also determined that the resident's allegation should not be
reported to the Iowa
Department of Human Services for reasons which included the following:
a) there were no witnesses to the alleged sexual abuse other than the resident;
b) the accused male staff member neither admitted nor denied the allegations;
c) the accused male staff member resigned, therefore insulating the resident from any further abuse; and
d) the resident's family did not want the allegation reported since the resident
had a history of sexual
deviancy.
Joint Stipulations, pp. 1 - 2.
4. After another individual notified the Iowa Department of Human Services
of the allegation of sexual
abuse at Handicap Village, Roxanne Neary, an investigator from the Iowa Department
of Inspections and
Appeals, investigated the alleged sexual abuse. During the course of her investigation,
Petitioner discussed
what he knew about the incident. At the end of her investigation, Ms. Neary
informed Petitioner that he
might be facing possible criminal charge for failure to report suspicion of
adult abuse. Ms. Neary also
informed Petitioner that she was forwarding her investigative file to the Cerro
Gordo County Attorney.
Joint Stipulations, p. 3; P. Ex. 1, p. 2.
5. On March 5, 1993, the Cerro Gordo County Attorney charged Petitioner with
failure to report a
suspected case of adult abuse, a violation of Iowa Code 235B.1(1)(a)(4), 235B.1(7)(a),
and 235B.1(11).
Joint Stipulations, p. 3.
6. Petitioner then contacted Ms. Neary, who informed him that the charge was
a mere formality and that
he would probably only have to pay a $50 fine. When asked if the charge would
affect his employment,
Ms. Neary stated that his continued employment at Handicap Village was a matter
between him and
Handicap Village. Joint Stipulations, p. 3.
7. On March 18, 1993, Petitioner pled guilty to failure to report a suspected
case of adult abuse, a violation
of Iowa Code 235B.1(1)(a)(4), 235B.1(7)(a), and 235B.1(11). Petitioner was not
represented by counsel.
The magistrate who took Petitioner's plea fined Petitioner $50 and assessed
Petitioner a $15 surcharge and
$25 in costs. Petitioner paid his fine that day. Joint Stipulations, pp. 3 -
4.
8. By letter dated August 13, 1993, the I.G. notified Petitioner that, effective
20 days from the date of the
letter, the Secretary of Health and Human Services was excluding him from participation
in the Medicare
program and from any State health care program which receives federal funding,
pursuant to section
1128(a)(2) of the Act. This action was based on Petitioner's conviction in the
Iowa District Court for Cerro
Gordo County for his failure to report a suspected case of adult abuse. Since
there were no aggravating
circumstances, Petitioner's exclusion was for the minimum five-year period mandated
by section
1128(c)(3) of the Act. Joint Stipulations, p. 4.
9. Handicap Village receives approximately 50 percent of its funding from Medicare
and other federal
programs. Thus, unless Handicap Village can pay Petitioner's salary from a source
that does not include
federal funds, the effect of the exclusion directed by the I.G. was to prohibit
Petitioner from working at
Handicap Village after September 2, 1993 (i.e., 20 days from the date of the
I.G.'s notice letter). The
Executive Director of Handicap Village has testified in a different proceeding
that Handicap Village might
be able to fund a chaplin or minister position with strictly private funds.
Thus, there remains a possibility
that Petitioner could continue working at Handicap Village, albeit in a different
role. Joint Stipulations, p.
4.
10. On August 24, 1993, Petitioner filed a post-conviction relief petition,
asserting that his conviction
should be set aside. That matter is still pending in State court. Joint Stipulations,
p. 5.
11. On August 25, 1993, Petitioner filed a timely request for hearing before
a federal administrative law
judge to contest the exclusion imposed and directed by the I.G.. The case was
assigned to me for hearing
and the issuance of a decision. Joint Stipulations, p. 5.
12. On August 27, 1993, Petitioner filed an action in federal district court
seeking to enjoin the Secretary
of Health and Human Services from excluding him pending the exhaustion of his
administrative remedies.
By order dated September 1, 1993, the court denied Petitioner's Motion for Temporary
Restraining Order
and Preliminary Injunction and Request for Evidentiary Hearing. Joint Stipulations,
p. 5; Barrett v.
Shalala, No. C93-3058 (N.D. Iowa Sept. 1, 1993).
13. Petitioner's conviction is not related to the abuse of patients. I.G. Rep., p. 1; P. Mem., p. 6.
B. Other Findings of Fact and Conclusions of Law
14. Petitioner was "convicted" of a criminal offense within the meaning
of sections 1128(a)(2) and 1128(i)
of the Act.
15. Petitioner may not utilize this administrative proceeding to collaterally attack his criminal conviction.
16. The elements of Petitioner's conviction establish that Petitioner was "convicted"
of a criminal offense
relating to a patient, within the meaning of section 1128(a)(2) of the Act.
17. The elements of Petitioner's conviction establish that Petitioner was convicted
of a criminal offense
which was "in connection with the delivery of a health care item or service,"
within the meaning of section
1128(a)(2) of the Act.
18. The elements of Petitioner's conviction establish that Petitioner was convicted
of a criminal offense
relating to "neglect" of patients, within the meaning of section 1128(a)(2)
of the Act.
19. The Secretary of Health and Human Services has delegated to the I.G. the
authority to determine,
impose, and direct exclusions pursuant to section 1128 of the Act. 48 Fed. Reg.
21,662 (1983).
20. The five-year exclusion imposed and directed against Petitioner by the
I.G. is for the minimum period
required for exclusions imposed and directed pursuant to section 1128(a)(2)
of the Act. Section
1128(c)(3)(B) of the Act.
21. The exclusion imposed and directed by the I.G. against Petitioner is in
accordance with the mandates
of the Act.
22. Neither the I.G. nor the administrative law judge has the authority to
reduce the five-year minimum
exclusion mandated by sections 1128(a)(2) and 1128(c)(3)(B) of the Act.
ANALYSIS
A. Petitioner was "convicted" of a criminal offense within the meaning
of section 1128(a)(2) and section
1128(i) of the Act.
The facts and stipulations of record establish that Petitioner had pled guilty
to a misdemeanor offense in
State court and the presiding magistrate had accepted his plea. FFCL # 7; I.G.
Ex. 1 and 2. These facts
establish the existence of a conviction within the meaning of sections 1128(a)(2)
and 1128(i) of the Act.
Nevertheless, Petitioner asserts that he was not convicted within the meaning
of the Act. P. Mem., pp. 3, 5.
He argues that the criminal complaint against him was technically defective;
that he should not have been
charged under a superseded statute and after the statute of limitations had
expired; that the description of
the acts constituting the offense are inaccurate; that he was not informed that
an exclusion from the
Medicare and Medicaid programs would ensue from his guilty plea; and that the
presiding magistrate erred
in having accepted a guilty plea that was not intelligently or knowingly made
by Petitioner. P. Mem., pp. 5
- 6; P. Ex. 3. Petitioner has instituted postconviction relief proceedings in
Cerro Gordo County Court in
order to set aside the conviction he believes to be contrary to law. P. Mem.,
p. 5; FFCL #10.
In challenging his exclusion before me, Petitioner has confused the existence
of his conviction with his
opinion of its validity. His arguments make clear that he regrets having pled
guilty to the State's charge
and believes he should not have been convicted. However, on the undisputed facts
of this case, the laws
and regulations applicable to these proceedings prohibit Petitioner from denying
the existence of his
conviction.
Section 1128(i) of the Act defines "conviction" as, inter alia, "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 . . . ." and "when a plea of guilty . . . by the individual
or entity has been accepted by a . . .
State, or local court . . . ." Sections 1128(i)(1) and 1128(i)(3) of the
Act. The pendency of Petitioner's
postconviction relief motion and its bases do not negate the existence of Petitioner's
conviction in this or
any other forum.
In addition, the regulations that control the scope of these exclusion proceedings
expressly prohibit
Petitioner from collaterally attacking his conviction in the present forum.
42 C.F.R. 1001.2007(d)(1992).
I am without authority to adopt the rationale articulated by Petitioner in his
postconviction relief motion, no
matter how sympathetically he has portrayed himself. Where, as here, a petitioner
to the federal exclusion
proceedings believes that his underlying State conviction is invalid, he must
test the merits of his belief in
State court, where the prosecution has a right also to set forth its position
and where the presiding officials
will have the benefit of a full record pertaining to the conviction when they
consider whether to grant
Petitioner relief. Petitioner may not use the federal exclusion hearing procedures
to prove his grievances
against the State.
For the same reasons, I give no effect to Petitioner's assertion that he "had
been told by a state employee
who is employed by the very office responsible for reporting the conviction
to the Inspector General that
the conviction would not have an impact on his job." P. Mem., p. 5. Petitioner
is using the words he
attributes to the State employee for the impermissible purpose of collaterally
attacking the validity of his
conviction in these proceedings. However, because Petitioner's attribution also
preserves an estoppel
argument against the I.G., I find it appropriate to address the matter as a
separate but related issue under
section 1128(i) of the Act.
First, Petitioner has stated under oath:
I met with an investigator, Roxanne Neary, and . . . she indicated to me that
. . . she would be talking to
the county attorney for Cerro Gordo, Iowa, about charging me with failure to
report a suspected case of
dependent adult abuse. I questioned her about what this would mean, and she
indicated that the crime was
a simple misdemeanor and that a conviction would not have an impact on my job
unless my employer so
chose.
P. Ex. 1, p. 2 (emphasis added). This conversation should have put Petitioner
on notice that his job might
be affected by the conviction.
I further note that Petitioner's reference is to an employee of the State of
Iowa. There is no fact of record
establishing that this State employee spoke to Petitioner as a representative
of the I.G.. There is no fact of
record suggesting that the I.G. has authorized the State employee to give advice
to Petitioner on the I.G.'s
behalf. Nor is there any fact of record suggesting that the I.G. had induced
Petitioner to seek or rely on a
State employee's opinion concerning the legal ramifications of any guilty plea
Petitioner may enter. In
sum, nothing said between a State employee and Petitioner can be construed as
having estopped the I.G.
from acting on the existence of Petitioner's conviction under section 1128(a)(2)
of the Act.
Moreover, section 1128 of the Act is a federal statute which was designed to
advance the federal interest in
protecting federally-funded health care programs from health care providers
who cannot be trusted to
handle program funds. There is nothing in section 1128 which suggests that Congress
intended that the
authority to impose and direct exclusions be subject to limitations imposed
by employees of State
governments. I conclude that a State employee does not have the authority to
make a decision on behalf of
the Secretary of Health and Human Services that would frustrate the strong federal
interest in protecting the
integrity of federally-funded health care programs. Anthony Accaputo, Jr., DAB
CR249 (1993), aff'd,
DAB 1416 (1993).
I find that Petitioner was convicted within the meaning of the Act.
B. The elements of Petitioner's conviction establish that Petitioner was convicted
of a criminal offense
relating to a "patient" and that the criminal offense was "in
connection with the delivery of a health care
item or service."
Petitioner admits that, during February of 1992, he was informed by a female
staff member of Handicap
Village that a resident of Handicap Village had complained of having been sexually
abused by a certain
male staff member of Handicap Village. FFCL # 2. Petitioner admits also that,
at the time he learned of
the complaint, he was the facility's Director of Residential Services, and Handicap
Village was a residential
and vocational center which provides services for mentally and physically disabled
individuals, using funds
from federal and State health care programs. FFCL # 1 and # 9; see also P. Ex.
2, p. 1. He was convicted
after pleading guilty to the following charges:
that on or about the 19th day of February, 1992, . . . said defendant did
unlawfully, knowingly and
willfully fail to report a case of suspected dependent adult abuse, as a mandatory
reporter in charge of an
institution or facility for the care of dependent adults, to-wit: did fail to
report to the Department of Human
Services a suspected case of dependent adult abuse involving deprivation of
supervision, contrary to
Sections 235B.1(1)(a)(4), 235B.1(7)(a), and 235B.1(11), of the 1991 Code of
Iowa, a simple misdemeanor.
P. Ex. 1, p. 5.
The I.G. contends that, on the foregoing facts, Petitioner can interpose no
meritorious challenge to the
I.G.'s conclusion that the conviction was "in connection with the delivery
of a health care item or service,"
as required by section 1128(a)(2) of the Act. I.G. Mem., p. 4.
However, Petitioner asserts in his reply brief that the I.G. is not entitled
to summary disposition on this
issue because the I.G. has not presented any evidence that the resident who
had complained of sexual abuse
was at Handicap Village for medical treatment. 4/ In essence, Petitioner's argument
is that section
1128(a)(2) requires a "patient" to have been neglected in connection
with the delivery of health care, and
there is no evidence in this case that the alleged victim of neglect or abuse
was a patient at Handicap
Village.
I agree with Petitioner that, under section 1128(a)(2) of the Act, at least
one patient has to have been
neglected in relation to the criminal offense underlying Petitioner's conviction.
In the context of
Petitioner's case, the statutory elements underlying Petitioner's conviction
adequately establish that the
resident of Handicap Village who had complained of sexual abuse was a patient
at Handicap Village during
the relevant time period. In reaching this conclusion, I do not imply that,
in all cases involving patient
neglect under section 1128(a)(2), the patient neglected must be those of the
excluded individual's
institution. See discussion of Carolyn Westin, DAB 1381 (1993) below.
Petitioner has misplaced reliance on the decision in Wilhelmina K. Rote, R.N.,
DAB CR242 (1992) to
support his argument that the I.G. must submit additional evidence proving that
the resident who
complained of sexual abuse was at Handicap Village for medical reasons. Rote
is inapposite. The
petitioner in Rote had been convicted of assault under a statute that did not,
by its clear terms, establish that
petitioner's offense related to a patient in a treatment setting. In this case,
given the statutory elements of
the offense for which Petitioner was convicted, the individual who allegedly
suffered from sexual abuse
was without doubt a "patient" at Handicap Village during the time
period and in the events relevant to
Petitioner's offense, and the circumstances that gave rise to Petitioner's conviction
were connected with the
delivery of a health care item or service to that individual.
As discussed earlier, Petitioner is bound by the fact of his conviction and
he is not entitled to collaterally
attack the elements to which he had already pleaded guilty in contesting the
I.G.'s authority to exclude him.
Petitioner was convicted under section 235B.1(1)(a)(4) of the 1991 Code of Iowa,
which defined
"dependent adult abuse" as:
The deprivation of the minimum food, shelter, clothing, supervision, physical
and mental health care,
and other care necessary to maintain a dependent adult's life or health.
"Dependent adult," as defined by section 235B.1(3) of the 1991 Code of Iowa, meant:
a person eighteen years of age or older who is unable to protect the person's
own interests or unable to
adequately perform or obtain services necessary to meet essential human needs,
as a result of a physical or
mental condition which requires assistance from another, or as defined by departmental
rule.
Section 235B.1(7)(a) of the 1991 Code of Iowa, under which Petitioner was convicted
as well, imposed a
reporting duty on health practitioners, the heads of hospitals or similar institutions
and their designated
agents, as follows:
A health practitioner, . . . who examines, attends, or treats a dependent
adult and who reasonably
believes the dependent adult has suffered dependent adult abuse, shall report
the suspected abuse to the
department of human services. If the health practitioner examines, attends,
or treats the dependent adult as
a member of the staff of a hospital or similar institution, the health practitioner
shall immediately notify the
person in charge of the institution or the person's designated agent, and the
person in charge or the
designated agent shall make the report.
Petitioner's guilty plea and conviction for failure to report "dependent
adult abuse" establish that the
resident who complained of sexual abuse was so severely handicapped that he
was unable to protect his
own interests or adequately care for his own essential human needs without help
from others. See sections
235B.1(1)(a)(4) and 235B.1(3) of the 1991 Code of Iowa; FFCL # 2. The fact that
this individual resides
at Handicap Village (Petitioner has consistently referred to him as a "resident")
in such an utterly
dependent state readily implies that even the routine services provided by Handicap
Village to maintain his
survival should have included health care services. See Dawn Potts, DAB CR120,
at 7 (1992). The
elements of Petitioner's conviction contradict Petitioner's theory that during
the period of time and in the
events relevant to Petitioner's conviction, the purported victim of abuse might
have been receiving only
nonmedically related "residential or vocational care" at Handicap
Village. P. Rep., p. 5.
In addition, the elements of Petitioner's conviction specifically establish
that the purported victim of
dependent adult abuse was examined, attended, or treated by a health care practitioner
who was on the staff
of Handicap Village. See section 235B.1(7)(a) of the 1991 Code of Iowa. While
attending to, examining,
or treating the dependent adult resident in question, the health care practitioner
on Handicap Village's staff
formed a reasonable belief that said resident had been the victim of suspected
dependent adult abuse
involving the deprivation of supervision necessary for maintaining his life
or health. 5/ See id. and section
235B.1(1)(a)(4) of the 1991 Code of Iowa. Only because Handicap Village is a
hospital or like institution,
the health care practitioner on its staff reported her beliefs of dependent
adult abuse to Petitioner in his
capacity as the designated agent for Handicap Village. See section 235B.1(7)(a)
of the 1991 Code of Iowa.
Petitioner could not have been convicted absent a complaint by a dependent
adult resident whose survival
necessitated the delivery of health care services for his maintenance. Absent
the involvement of a health
care practitioner on Handicap Village's staff who examined, attended, or treated
the alleged victim of abuse
during her delivery of a health care item or service to him, Petitioner would
not have been convicted.
Petitioner's failure to report could not have resulted in his conviction had
Handicap Village not been an
institution like a hospital. Petitioner's conviction was therefore "in
connection with the delivery of a health
care item or service" and relating to a "patient" within the
meaning of the Act.
C. Petitioner's offense is related to the "neglect" of patients.
The I.G.'s argument that Petitioner's conviction is related to the neglect
of patients is supported by the
appellate panel's decision in Carolyn Westin, DAB 1381 (1993) and the administrative
law judge's decision
in Vicky L. Tennant, R.N., DAB CR134 (1991), both of which involved criminal
convictions for the
failure to file medical incident reports with the State. The I.G.'s position
in this case is also consistent with
the holdings in cases that have involved criminal convictions for the failure
to report suspected patient
abuse to the State.
In Dawn Potts, DAB CR120 (1991), the convicted individual was a house manager
at a facility that
provided health care to mentally handicapped persons. In the course of her duties
as house manager, she
was informed that an individual she supervised had struck a mentally handicapped
resident who was
receiving health care at the institution. Because she failed to report the incident
of suspected abuse to the
State authorities as required by law, she was convicted of a criminal offense
under Florida's reporting
statute.
The administrative law judge held that the conviction was related to patient
neglect within the meaning of
section 1128(a)(2) of the Act. He reasoned that the convicted individual had
a duty to provide care by
virtue of her position as a house manager, and the care she was under a duty
to provide included following
the directives of State law to report those incidents which might place patients
in jeopardy of their health
and safety. By failing to make the report of suspected abuse, she breached her
duty as a health care
provider to the patient who was allegedly abused. Her conviction therefore resulted
from her neglect of
that patient.
Recently, I decided a case which involved facts very similar to Petitioner's
and a conviction for the same
offense as the one committed by Petitioner. Section 235B.1(7)(a) of the 1991
Code of Iowa; Glen E.
Bandel, DAB CR261 (1993). Mr. Bandel was the head of a nursing home in Iowa,
and, as such, was
required by Iowa law to report incidents of suspected dependent adult abuse.
After having conducted his
own investigation of the alleged patient abuse that was reported to him by a
member of his staff, he
concluded that there was no reasonable basis for reporting the incident to the
State. The State later
convicted him in Cerro Gordo County, Iowa, upon his pleading guilty to section
235B.1(7)(a) of the 1991
Code of Iowa, for his failure to report the suspected abuse. I concluded in
the Bandel case that the
conviction under section 235B.1(7)(a) of the 1991 Code of Iowa related to the
neglect of patients within
the meaning of section 1128(a)(2) of the Act.
I reached that conclusion in Bandel on the basis of the duty that the Iowa
legislature had placed on Mr.
Bandel to use the statutorily specified means for protecting the health, safety,
and well-being of those
dependent adult patients in his charge. I noted that each State has the right
to protect its own dependent
adult citizens and regulate the health care services that are delivered to them.
By statute, the State of Iowa
had determined that, in the course of delivering health care to dependent adult
patients, persons in Mr.
Bandel's position must care for the dependent adults in their charge by referring
to the State all incidents of
suspected patient abuse. In failing to comply with the mandatory reporting requirements
of the Iowa law,
Mr. Bandel neglected a dependent adult patient's right to certain specific aspects
of care especially
recognized and required by Iowa law.
Petitioner takes issue with the neglect analysis in Bandel and Potts on several
grounds. First, Petitioner
asserts that Congress intended to reach only those persons who "directly
abuse or neglect patients." P.
Mem., p. 7. Petitioner next argues that he cannot be excluded because the statute
under which he was
convicted does not set forth the criminal elements of a patient neglect offense;
other Iowa statutes define
patient neglect offenses. P. Mem., pp. 8 - 9. Petitioner contends also that
it is not the State law that
controls; rather, the underlying facts supporting the conviction should be considered
in determining
whether the conviction relates to patient neglect. P. Mem., pp. 9 - 11. Petitioner
contends that the facts
that underlie his conviction show that he should not be excluded from the Medicare
and Medicaid
programs. P. Mem., pp. 9 - 12; P. Rep., pp. 2 - 4.
1. Those who directly abuse or neglect patients are not the only ones who may
be excluded under
section 1128(a)(1) of the Act.
I am not persuaded by Petitioner's argument that, in enacting section 1128(a)(2)
of the Act, Congress
intended to reach only those persons who have directly abused or neglected patients.
Since applying the
reasoning I used in Bandel to the facts of this case leads to the conclusion
that Petitioner had directly
neglected the care of the patient who complained of abuse, I assume what Petitioner
means by his legal
argument is that persons who perform administrative or supervisory responsibilities
in the health care
delivery chain are not subject to section 1128(a)(2) of the Act.
The language and history of the statute do not support the theory that, to
be excluded under section
1128(a)(2), the convicted individual must have had direct interaction with patients.
Congress' use of
"relating to" to describe patient neglect or abuse indicates that
the exclusion provision at issue must be read
as covering more than those who have inflicted direct harm on patients through
abuse or neglect. The
regulation at 42 C.F.R. 1001.101(b) interprets an offense related to the neglect
or abuse of a patient as
"including any offense that the OIG concludes entailed, or resulted in,
neglect or abuse of patients." The
preamble to said regulation contains an example of an embezzlement offense in
a nursing home that may
be related to patient neglect or abuse. 57 Fed. Reg. 3303 (1992). Even the legislative
report quoted by
Petitioner states that the exclusion shall apply to those individuals who were
convicted of offenses that
"entailed or resulted in neglect or abuse of other patients." P. Mem.,
p. 7.
In sum, the statute can reach others in the health care delivery chain, such
as heads of medical institutions
and supervisors of direct care personnel, who may have had no direct contact
with any patient but whose
conviction was for an offense that related to, resulted in, or entailed the
abuse or neglect of patients.
2. Patient neglect need not be an element in the conviction as asserted by Petitioner.
I reject also Petitioner's arguments that section 1128(a)(2) of the Act is
inapplicable to his situation because
the Iowa statute used to convict him did not contain patient neglect as an element
and he was not convicted
under any of the State's patient neglect laws.
Section 1128(a)(2) of the Act does not require a conviction for patient abuse
or neglect; rather it requires a
conviction for an offense that is related to, entailed, or resulted in the abuse
or neglect of a patient. Section
1128(a)(2) of the Act; 42 C.F.R. 1001.101(b). The relatedness determination
is for the I.G., and now me,
to make. 42 C.F.R. 1001.101(b); section 205(b)(1) of the Act. In promulgating
regulations to implement
the statute, the Secretary of Health and Human Services has especially noted,
"Further, the offense that is
the basis for the exclusion need not be couched in terms of patient abuse or
neglect;" the illustrative
example given is of a conviction for embezzlement of nursing home funds that
resulted in the neglect of
patients. 57 Fed. Reg. 3303 (1992). An appellate panel of the Departmental Appeals
Board (Board) also
has held that "it does not matter that the term 'neglect' was not specifically
mentioned during the criminal
process." Carolyn Westin, DAB 1381, at 12 (1993). Under a proper reading
of the law, there is no
conceivable merit to Petitioner's contention that patient neglect must be an
element of the offense for which
he was convicted.
According to Petitioner, a statement I made in Bandel supports his contention
that he cannot be excluded
unless he has been convicted of an offense having patient neglect as an element.
P. Mem., p. 8. My
statement, "However, Iowa law controls here in determining what is related
to the neglect of patients within
its own boundaries" (Bandel at 10) does not alter the plain language of
the federal statute or the agency's
implementing regulations. In Bandel, I made that statement in the course of
noting that, in a jurisdiction
which did not have a reporting statute similar to Iowa's, the same omissions
by Mr. Bandel might not result
in a conviction that I would find to be related to patient neglect. In the context
of addressing Mr. Bandel's
arguments, I was simply pointing out that, even though all States do not require
the same type of care for
their dependent adult patients, I could not decide the "related to patient
neglect" issue in Mr. Bandel's case
by using other States' laws. My statement does not support Petitioner's incorrect
legal theory.
3. Petitioner has failed to establish that section 1128(a)(2) is inapplicable
to him because he believes he
has caused no harm and poses no risk to the programs' beneficiaries and participants.
I next turn to Petitioner's affirmative arguments that he should not be excluded
on the basis of patient
neglect because, in his view, the facts that underlie his conviction show that
he has caused no harm by his
failure to report the suspected patient abuse; that he constitutes no risk to
the health and safety of his
patients and, absent such serious risk, he is beyond the exclusion mandates
of the Act; that he was acting
within his discretion as a supervisor when he failed to report the suspected
abuse; that he was convicted
even though the law allowed him to exercise his discretion on whether to report
the offense; and that he has
actually helped prevent abuse of dependent patients by investigating the allegations
of patient abuse and
accepting the resignation of the staff member under investigation. While acknowledging
that his failure to
report the suspected patient abuse for a State investigation may have impacted
negatively on the State's
effort to keep records on patient abusers and keep them from taking positions
where they could inflict their
abuse again, Petitioner says he has not neglected any patient. P. Mem., pp.
9 - 12; P. Rep., pp. 3 - 4.
It should be apparent from my earlier rejection of Petitioner's related arguments
on "direct" patient neglect
that I do not view actual harm to a patient as a prerequisite to Petitioner's
exclusion. In Westin and
Tennant, the appellate panel and the administrative law judge, respectively,
upheld the exclusions imposed
under section 1128(a)(2) in the absence of any proof of actual harm to patients.
The underlying offenses in
those cases were the individuals' failure to file medical incident reports with
the State concerning certain
patient deaths that were not caused by the individuals. In those cases, relatedness
to patient neglect was
established by the offense's potential for harming patients.
Petitioner has cited no authority showing that an individual may not be excluded
unless he had caused
actual harm to a patient by neglect. Petitioner's reading of the preamble to
the regulations is not in accord
with its plain meaning or its context. See P. Mem., pp. 10 - 11. The preamble's
reference to the I.G.'s
authority to impose an exclusion "irrespective of whether the individual
intended to harm patients" means
what it says; furthermore, this explanation was given to explain the example
where a conviction for an
offense without a patient neglect element (such as embezzlement) may be related
to patient neglect. 57
Fed. Reg. 3303 (1992).
Even the dictionary definition of "neglect" quoted by Petitioner,
i.e., "to fail to care for or attend to
properly" (P. Rep., p. 2) makes no reference to harm caused by such failure.
The facts underlying
Petitioner's conviction shows that he had in fact neglected patients under the
dictionary definition he used.
As to the resident who complained of sexual abuse, Petitioner had "fail[ed]
to care for or attend to [him]
properly" in the manner directed by the State of Iowa during the course
of delivering health care to him.
Bandel, at pp. 9 - 10; Potts, at pp. 6 - 7.
Even if actual harm to patients were material to this case, Petitioner has
not proven as facts his affirmative
arguments that his omission under the Iowa statute has no adverse effect on
patients. Because Petitioner
did not file the required report with the State when he learned of the abuse
allegations, Petitioner's
conclusions that the alleged victim has not been harmed by sexual abuse or by
his personal investigation of
the matter are speculative. Petitioner's decision not to report the matter to
the State has foreclosed
comparing the results from his investigation for Handicap Village with those
of a contemporaneous and
independent investigation conducted by the State. Valuable information or physical
evidence in support of
the abuse allegations and successful prosecution of the offender may have been
lost by the time the State
learned of the incident. Even if Petitioner had been well versed in the requisite
investigative techniques
relevant to sexual abuse alleged by severely handicapped individuals, Petitioner
was not a disinterested
investigator, and he was not empowered to compel the production of information
from those reluctant to
provide it to him. Every patient in Iowa who believed that he or she had been
sexually abused by an
institution's employee had the right to make his or her complaint known and
have the head of the
institution, or a designate, safeguard that patient's health and safety by referring
the complaint to the State
for an independent evaluation by professionals who should have no stake in its
outcome.
Even though the accused staff member had voluntarily resigned during Petitioner's
investigation (FFCL #
3(c)), Handicap Village has no legal reason for not rehiring him in the future
-- especially after Petitioner
has found no basis for suspecting that sexual abuse had occurred. P. Ex. 1,
p. 2. Thus, contrary to
Petitioner's arguments, the resignation of the accused provided no real protection
to the alleged victim or
other patients at Handicap Village.
I reject Petitioner's contentions that he neglected no patient because his
decision not to report the allegation
of abuse was within his managerial prerogatives and that the Iowa statute used
to convict him had allowed
him to exercise his judgment to determine whether a report of suspected abuse
should be filed. Petitioner's
contentions reflect his inaccurate reading of the Iowa statute. The Iowa statute
did not permit him to
exercise his managerial discretion in the manner he did, and the Iowa statute
did not permit him to decide
whether he agreed with the others' suspicions of dependent adult abuse. Once
others (e.g., the staff
member who treated, attended, or examined the alleged victim) had determined
that their suspicions of the
abuse were reasonable and referred their suspicions to Petitioner, his only
recourse was to report the others'
reasonable suspicions to the State. Section 235B.1(7)(a) of the 1991 Code of
Iowa. Moreover, Petitioner's
reliance on his misreading of the Iowa law amounts to another collateral attack
on the validity of his
conviction, which is beyond the purview of this case.
On Petitioner's arguments that he poses no risk to Medicare beneficiaries and
Medicaid recipients, and
therefore should be exempted from the exclusion, I note that Congress has already
determined that persons
who have been convicted of offenses related to patient neglect pose very great
risks to program
beneficiaries and recipients. The facts that underlie Petitioner's conviction
cannot be used to alter that
legislative determination. In addition, even if he were entitled to prove that
he poses no risk despite his
conviction, I do not find his arguments persuasive.
Petitioner put many patients at risk with his decision not to report the allegations
of sexual abuse to the
State. He unreasonably characterizes his offense as the dereliction of a statutory
duty he owed only to the
State -- not to patients. He fails to recognize that the State uses the reports
of suspected adult abuse to
make investigations, keep records, and provide services for the protection and
benefits of patients. His
conviction was for the dereliction of a statutory duty he owed to patients.
Petitioner's denial posture appears especially inappropriate in the face of
his acknowledgment that his
failure to make the report to initiate a State investigation may have negatively
impacted on the State's
efforts to track patient abusers and keep them from taking jobs that may put
other patients in danger. P.
Rep., p. 3. 6/ As earlier noted, an appellate panel of the Board has upheld
a finding of patient neglect in an
analogous fact situation where an individual's failure to file a required report
also deprived the State of the
vital information it was tracking. There, the patient whose condition should
have been reported had passed
away before the commission of the offense, but patients elsewhere were put at
risk by the absence of the
required report. The Board upheld the finding that the offense had a direct
relationship to the health and
safety of patients and therefore constituted patient neglect. In reaching this
conclusion, the appellate panel
stated:
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.
Westin, at 12 (citing Tennant, at 10 - 11). So in this case, too, Petitioner's
offense must be found to be
related to the neglect of patients in and out of his employing institution.
4. Petitioner's offense was related to patient neglect within the meaning of the law.
I have not been persuaded that the analysis in Potts and Bandel are erroneous.
Thus, using the rationale
already discussed in full in those two decisions as well as in the foregoing
sections of the present decision,
I find that Petitioner's conviction for his failure to report suspected abuse
of a patient is a conviction for an
offense related to his neglect of that patient.
CONCLUSION
Based on the undisputed material facts and the law, I conclude that the I.G.'s
determination to exclude
Petitioner from Medicare, and to direct that Petitioner be excluded from participation
in Medicaid, for five
years, was mandated by law. Therefore, I am entering a decision in favor of
the I.G. in this case. The five-
year exclusion imposed and directed against Petitioner is sustained.
________________________________
Mimi Hwang Leahy
Administrative Law Judge
1. "State health care program" is defined by section 1128(h) of the
Social Security Act, 42 U.S.C.
1320a-7(h), to cover three types of federally-assisted programs, including State
plans approved under Title
XIX (Medicaid) of the Social Security Act. Unless the context indicates otherwise,
I use the term
"Medicaid" hereafter to represent all State health care programs from
which Petitioner was excluded.
2. Each party has submitted a memorandum in support of summary disposition
and a reply
memorandum, together with various exhibits. In this decision, I refer to Petitioner's
supporting
memorandum and reply memorandum as "P. Mem." and "P. Rep.,"
respectively, and to the I.G.'s
supporting memorandum and reply memorandum as "I.G. Mem." and "I.G.
Rep.," respectively. In citing
the exhibits filed by the parties, I refer to "P. Ex." or "I.G.
Ex.," followed by the numerical designation of
the exhibit and the page number.
Petitioner's exhibits are:
P. Ex. 1: The affidavit Petitioner prepared for this case (pp. 1 - 4) with
documents in support of his
assertions (pp. 5 - 12).
P. Ex. 2: The affidavit prepared by Gary Mrosko for this case (pp. 1 - 2).
P. Ex. 3: A copy of Petitioner's Motion to Amend Pleading filed before the
Iowa District Court (p. 1); a
copy of Petitioner's Amended and Restated Application for Postconviction Relief
(pp. 2 - 8) with
supporting documents (pp. 9 - 18); a copy of Petitioner's Application for Postconviction
Relief (pp. 19 -
24) with supporting documents (pp.25 - 32).
Petitioner's Exhibit 3 contains numerous duplicate pages because he used many
of the same documents as
attachments in support of his postconviction relief motion and amended postconviction
relief motion.
The I.G.'s two exhibits are:
I.G. Ex. 1: A copy of the Complaint filed against Petitioner in Iowa District
Court on March 5, 1993 (p.
1), and a copy of the court summons (p. 2).
(I.G.'s exhibit 1 duplicates P. Ex. 1, pp. 5 - 6, and P. Ex. 3, pp. 15 - 16, 25 - 26.)
I.G. Ex. 2: A copy of the docket sheet of Petitioner's proceedings before
the magistrate in Cerro Gordo
County, Iowa (p. 1).
Neither party has objected to the foregoing exhibits, and I have admitted all
of them into the record for the
purpose of considering the merits of the parties' positions.
3. As summarized in my September 8, 1993 Prehearing Order and Schedule for
Filing Motions for
Summary Disposition, the parties have stipulated to facts numbered 1 - 3 and
6 - 14 found in a document
marked as Joint Stipulations. While I have adopted the Joint Stipulations without
substantive changes, I
have changed their numbering where appropriate, I have conformed the style with
the style I use in other
parts of the Decision, and I have made other noncontroversial changes for the
sake of clarity.
4. According to Petitioner, "There is no evidence that the resident was
there for medical treatment[;]"
and "[t]here is no evidence that the resident at issue here is at that
facility for medical reasons." P. Rep., p.
5.
5. Petitioner takes issue with the allegation in the State's complaint that
the abuse Petitioner failed to
report involved a failure to supervise. P. Mem., p. 5. Petitioner contends that
"[t]here was never any
allegations of failure to supervise involved in the case." Id. Petitioner's
contention lacks merit. The State's
allegation of failure to supervise in this case had been lodged in its complaint,
and Petitioner had pled
guilty to having violated section 235B.1(1)(a)(4) of the 1991 Iowa Code, which
lists as an offense the
"deprivation of . . . supervision . . . necessary to maintain a dependent
adult's life or health." I.G. Ex. 1 and
2. As noted earlier, Petitioner is not entitled to collaterally attack his conviction
in this proceeding. In
addition, proceeding as I must from the parties' stipulations that the material
facts underlying Petitioner's
conviction relate only to his failure to report suspected sexual abuse, I can
reasonably read the State's
complaint as averring that the suspected sexual abuse at Handicap Village, if
it took place as alleged,
involved a failure of supervision at the facility.
6. The evidence placed before the United States District Court for Iowa (see
FFCL # 12) led the judge to
find that the accused staff member who resigned from Handicap Village did later
secure employment to
care for the mentally retarded in another facility, and at the second facility
the accused admitted to having
had "close contact" with the Handicap Village resident who complained
of sexual abuse. Barrett v.
Shalala, No. C93-3058, (N.D. Iowa Sept. 1, 1993). I have not made these same
findings only because
Petitioner has not stipulated to them in moving for summary disposition.