Department of Health and Human Services DEPARTMENTAL APPEALS BOARD Civil Remedies Division |
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IN THE CASE OF | |
Karen S. Tanner, |
DATE: July 11, 2001 |
- v - |
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The
Inspector General
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Docket No.C-01-393
Decision No. CR795 |
DECISION | |
DECISION Karen S. Tanner (Petitioner) appeals the decision of the
Inspector General (I.G.), made pursuant to section 1128(a)(2) of the Social
Security Act (Act), to exclude her from participation in Medicare, Medicaid,
and all federal health care programs for a period of five years. For the
reasons discussed below, I uphold the I. G.'s decision.
APPLICABLE LAW Section 1128(a)(2) of the Act mandates exclusion from
all federal health care programs(1) of
any individual or entity convicted "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(i)(3) of the Act defines the term
"convicted" of a criminal offense to include those circumstances in which
a guilty plea by an individual has been accepted by a federal, State,
or local court. Section 1128(c)(3)(B) of the Act sets the minimum exclusion
period at five years. See also 42 C.F.R. � 1001.102(a).
The Secretary has delegated to the I.G. the responsibility to exclude
any individual convicted of patient neglect or abuse. 42 C.F.R. � 1001.101(a).
When the I.G. imposes the minimum mandatory exclusion under the Act, the
reasonableness of the length of the exclusion is not an issue. 42 C.F.R.
� 1001.2007(a)(2).
FINDINGS OF FACT AND CONCLUSIONS OF LAW 1. Petitioner's criminal conviction constitutes a conviction
within the scope of section 1128(i)(3) of the Act. 2. The I.G. had a basis upon which to exclude Petitioner
from participation in Medicare, Medicaid and all other federal health
care programs for a period of five years. DISCUSSION By letter dated December 29, 2000, the I.G. notified Petitioner
of her decision to exclude her from program participation. Petitioner
filed a timely request for review, and the matter has been assigned to
me for resolution. The parties have waived their rights to an in-person
hearing, and agreed that the matter could be decided on the written record.(2) The critical facts of this case are not in dispute. Petitioner
worked as a nurses' aide at Whetstone Gardens and Care Center in Franklin
County, Ohio. In July 1999, she was indicted on one felony count of patient
abuse. I.G. Ex. 3, 6. Petitioner subsequently pled guilty to the lesser
included offense of assault, in violation of Ohio Revised Code section
2903.13, a first degree misdemeanor. I.G. Ex. 4, 5. Petitioner was sentenced
to six months in jail, with that sentence suspended for time served, and
to pay the costs of the prosecution. I.G. Ex. 4. Petitioner has not disputed that she was convicted of
a crime relating to patient neglect or abuse in connection with the delivery
of a health care item or service. Instead, Petitioner raises questions
about the fairness of her conviction, and notes that the County Court
of Common Pleas subsequently expunged her conviction. Neither of Petitioner's
claims justify lessening the length of her exclusion.
First, with respect to the fairness of her conviction,
Petitioner may not use this forum to attack collaterally her criminal
conviction. The regulations are explicit:
42 C.F.R. � 1001.2007(d). Joann Fletcher Cash, DAB No. 1725 (2000); Chander Kachoria, R. Ph., DAB No. 1380 (1993) ("There is no reason to 'unnecessarily encumber the exclusion process' with efforts to reexamine the fairness of state convictions"). Second, with respect to the expungement of Petitioner's conviction, section 1128(i) of the Act specifically precludes my consideration as to whether a conviction has been expunged:
(emphasis added). CONCLUSION For the reasons discussed above, I conclude that the I.G. properly excluded Petitioner from participation in Medicare, Medicaid, and all other federal health care programs, and the five-year exclusion is sustained. |
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JUDGE | |
Carolyn Cozad Hughes Administrative Law Judge
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FOOTNOTES | |
1. "Federal health care program" is defined in section 1128B(f) as any plan or program that provides health benefits, whether directly, through insurance, or otherwise, which is funded directly, in whole or in part, by the United States Government , or any state health care program. "State health care program" is defined in section 1128(h) of the Act and includes the Medicaid program (Title XIX). 2. Attached to the I.G.'s brief are I.G. Exhibits (I.G. Exs.) 1 - 6. The Petitioner submitted only a short letter with no exhibits. There being no objection, I.G. Exs. 1 - 6 are admitted into evidence. | |