Department of Health and Human Services DEPARTMENTAL APPEALS BOARD Civil Remedies Division |
|
IN THE CASE OF | |
Patricia Konyeaso, |
DATE: October 18, 2001 |
- v - |
|
The
Inspector General
|
Docket No.C-01-773 Decision No. CR827 |
DECISION | |
DECISION
By letter dated May 31, 2001, the Inspector General (I.G.)
notified Petitioner that she was being excluded from participation in
the Medicare, Medicaid, and all federal health care programs, as defined
in section 1128B(f) of the Social Security Act (Act), for a period of
five years, the minimum mandatory period of exclusion under the Act. The
I.G. informed Petitioner that she was being excluded pursuant to section
1128(a)(2) of the Act, due to her conviction in the Circuit Court for
Baltimore County, Maryland, of a criminal offense related to the neglect
or abuse of patients in connection with the delivery of a health care
item or service. I held a telephone prehearing conference in this case
on July 20, 2001. The parties agreed that this matter could be decided
based on written arguments and documentary evidence, and that an in-person
evidentiary hearing was unnecessary. The parties have made written submissions
in support of their contentions. Additionally, the I.G. submitted 12 proposed
exhibits. These have been identified as I.G. Exhibits (Exs.) 1-12. Petitioner
offered no documentary evidence. In the absence of any objection, I am
admitting I.G. Exs. 1-12. It is my decision to sustain the determination of the
I.G. to exclude Petitioner, Patricia Konyeaso, from participating in the
Medicare, Medicaid, and all federal health care programs for a period
of five years. I base my decision on the documentary evidence, the applicable
law and regulations, and the arguments of the parties. It is my finding
that Petitioner was 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. Additionally, I find that the five-year exclusion imposed
by the I.G. is the minimum period mandated by law and no inquiry is permitted
regarding the length of such exclusion.
Applicable Law and Regulations Section 1128(a)(2) of the Act authorizes the Secretary
of the Department of Health and Human Services (Secretary) to exclude
from participation in any federal health care program [as defined in section
1128B(f)], any individual convicted under federal or State law, 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 under section
1128(a)(2) of the Act must be for a minimum mandatory period of five years.
Act, 1128(c)(3)(B); 42 C.F.R. � 1001.102(a). Pursuant to 42 C.F.R. � 1001.2007, a person excluded under
1128(a)(2) may file a request for hearing before an Administrative Law
Judge (ALJ). Section 1128(b) of the Act authorizes the Secretary to
exclude individuals from receiving payment for services that would otherwise
be reimbursable under Medicare, Medicaid, or other federal health care
programs. Findings of Fact and Conclusions
of Law 1. Petitioner was employed by the Flying Colors of Success
residential group home as a care giver. I.G. Ex. 3. 2. Flying Colors of Success is a non-profit organization
that provides community- based, residential support and assistance to
people with developmental disabilities. I.G. Ex. 4. 3. Flying Colors of Success is licensed by the Maryland
Office of Health Care Quality and is a provider under the Maryland Medical
Assistance Program. I.G. Ex. 12. 4. On or about August 20, 1999, Petitioner was charged
with the care of Mr. Maurice Benjamin, a resident of Flying Colors of
Success who was severely mentally retarded and also suffered from cerebral
palsy. I.G. Ex. 3 at 2. 5. On March 8, 2000, the Attorney General of Maryland filed an application for Statement of Charges in the District Court for Baltimore County against Petitioner alleging that on or about August 20, 1999, Petitioner was observed grabbing Mr. Maurice Benjamin, while he was in her care at the group home, by the collar just under his chin and pushing him up against the wall. I.G. Ex. 3. 6. Petitioner was charged with: one count of Vulnerable
Adult Abuse in violation of Article 27, � 35D of the Code of Maryland;
one count of Assault in the Second Degree in violation of Article 27,
� 12A of the Code of Maryland; and one count of Interfering With the Rights
of an Individual in violation of Health-General Article 7-1002(b)(3).
I.G. Ex.5. 7. Petitioner was found guilty on April 20, 2000 of one count of Vulnerable Adult Abuse and one count of Assault in the Second Degree. I.G. Ex. 6. 8. Petitioner was sentenced to a suspended sentence of three years of incarceration; two years of supervised probation; 116 hours of community service; and a $750 fine. I.G. Ex. 6.9. Petitioner appealed her conviction and was granted
a de novo trial. The Circuit Court heard her case on an agreed statement
of facts and on September 29, 2000, entered a sentence of 18 months of
probation before judgment pursuant to Article 27, � 641 of the annotated
Code of Maryland. Petitioner was also ordered to pay a $750.00 fine and
complete 116 hours of community service. I.G. Exs. 9, 10. 10. The Circuit Court's adjudication of probation before judgment constitutes a conviction within the meaning of section 1128(i)(4) of the Act. 11. Petitioner has been convicted
under a State law, of a criminal offense relating to the neglect or abuse
of a patient in connection with the delivery of a health care item or
service as set forth in section 1128(a)(2) of the Act. 14. The minimum mandatory period of exclusion under section 1128(a)(2) of the Act is five years. Act, section 1128(c)(3)(B). 15. The I.G. properly excluded
Petitioner from participating in Medicare, Medicaid, and all other federal
health care programs for five years.
Discussion Petitioner was a care-giver employed by the Flying Colors
of Success residential group home on August 20, 1999. On that day she
was observed assaulting a severely retarded resident who suffered from
cerebral palsy. For this, she was charged on March 8, 2000, by criminal
summons, with three misdemeanor counts. On April 20, 2000, she was convicted
of one count misdemeanor abuse of a vulnerable adult and one misdemeanor
count of assault in the second degree. See I.G. Exs. 6, 7. Petitioner
had a de novo trial in the Circuit Court for Baltimore County, where she
was granted probation before judgment for the offense of second degree
assault. She was also fined $750.00 and ordered to complete 116 hours
of community service. At the time of the offense, Petitioner was charged
with the care of the victim, as part of her duties as a paid care-giver
for disabled vulnerable persons. I.G. Ex. 3. Petitioner is an "individual convicted under Federal or
State law, of a criminal offense relating to neglect or abuse of patients
in connection with the delivery of a health care item or service." Act,
section 1128(a)(2). The essential elements for mandatory exclusion are
the existence of a conviction for neglect or abuse of a patient and that
such neglect or abuse occur in connection with the delivery of an item
of health care or service. These elements are present in this case. Petitioner's
conduct-assaulting a severely retarded resident-plainly constitutes abuse
of a patient. Because the retarded individual whom Petitioner assaulted
was a resident of a Medicaid group home in which Petitioner was employed
as a care-giver, I conclude that the abuse occurred in connection with
the delivery of a health care item or service. Petitioner asserts, however, that her sentence of probation
before judgment is neither a "conviction" as defined in section 1128(i)
of the Act nor under Maryland law. She argues that her probation before
judgment does not meet the federal definition of conviction. In this regard,
Petitioner contends that she was not found guilty of any crime in the
Circuit Court for the Baltimore County. She reasons that judgment has
been withheld, and that "by receiving probation before judgment, she has
been sentenced to a three years suspended sentence, two years supervised
probation, payment of a fine and court costs, and preclusion from taking
employment where she would be working with children or vulnerable adults."
P. Br. at 3. Petitioner further argues that Maryland Code Article 27,
Crimes and Punishments � 641(2001) and Myers v. Maryland, (303
Md. 639, 496 A.2d 312 (1985)) stand for the proposition that probation
before judgment is not a conviction. I cannot agree with Petitioner's reasoning. At the outset,
it must be said that the Maryland authorities cited by Petitioner do not
and cannot define "conviction" for purposes of exclusions under section
1128(a)(2) of the Act. The United States Congress has already done that
in very specific, yet broad terms, in section 1128(i). Therefore, in order
to determine whether an individual has been "convicted" for purposes of
enforcement of the exclusion statute, I am not permitted to look for legislative
authority beyond the confines of section 1128(i) of the Act. Additionally,
Petitioner points to no other authority in support of the argument that
Maryland's definition of what constitutes a conviction under certain circumstances
is binding as a matter of federal law. It is my finding that the language of section 1128(i)(4)
is unequivocal in its application to the situation at hand. That subsection
clearly states that a conviction for exclusion purposes includes:
The language of Maryland Code � 641, alluded to by Petitioner in her brief (P. Br. at 4), fails to support her contention. That section provides that:
In this case, although judgment was withheld (stayed),
Petitioner stands "convicted" in light of the clear language of section
1128(i)(4) of the Act. The statute places greater stock in the fact that
the individual has been determined to be guilty whether by admission,
nolo plea, or verdict, than the mechanism employed by the court to impose
punishment. If individuals who are found guilty of a criminal offense
related to neglect or abuse of patients in connection with the delivery
of a health care item or service could circumvent the federal exclusion
provisions by availing themselves of creative sentencing procedures, the
exclusion statute would be rendered meaningless. Pursuant to 42 C.F.R. � 1001.2007, an individual excluded
under this section may file a request for hearing before an ALJ on the
issue of whether:
However, when the I.G. imposes an exclusion under subpart
B of Part 1001 of 42 C.F.R. for the mandatory five-year period, the issue
of the length of such exclusion is not considered. 42 C.F.R. � 1001.2007(a)(2).
Congress has established a mandatory exclusion period of five years, minimum.
Aggravating factors for lengthening the period may be considered, but
the five-year term will not be shortened. Thus, the only issue in this case is whether a basis exists
for the sanction. It is evident that Petitioner's
conduct is the type that Congress sought to prevent for the benefit of
a protected class of individuals. It follows then, that a person who abuses
patients is not fit to participate in federal health care programs. This
is consistent with the Secretary's duty to assure that the requirements
that govern the provision of health care, and the enforcement of those
requirements, are adequate to protect the health, safety, welfare, and
rights of beneficiaries of federal health care programs. In view of the clear statutory and regulatory language, Petitioner's defense grounded on the State of Maryland's definition of conviction is without merit. The unambiguous language of the Congressional legislation allows no room for a different interpretation.
CONCLUSION Sections 1128(a)(2) and 1128(c)(3)(B) of the Act mandate that Petitioner be excluded from Medicare, Medicaid, and all other federal health care programs for a period of at least five years because she was convicted of a criminal offense relating to abuse or neglect of a patient in connection with the delivery of a health care item or service. The five-year exclusion is therefore sustained. |
|
JUDGE | |
Jose A. Anglada Administrative Law Judge
|
|