Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD
Appellate Division
In the Case of:
Janet Wallace, L.P.N.,
Petitioner,
- v. -
The Inspector General,
Respondent.
DATE: April 21, 1992
Docket No. C-358
Decision No. 1326
FINAL DECISION ON REVIEW OF ADMINISTRATIVE LAW JUDGE
DECISION
Petitioner, Janet Wallace, L.P.N., appealed the decision of Joseph
K.
Riotto, Administrative Law Judge (ALJ), upholding her
five-year
mandatory exclusion from participation in Medicare and certain
state
health care programs. 1/ Petitioner was excluded from Medicare
and
Medicaid under sections 1128(a)(2) and (c)(3)(B) of the Social
Security
Act (42 U.S.C. . 1320a-7(a)(2) and (c)(3)(B)) after pleading guilty
to a
willful violation of New York's public health laws, a
criminal
misdemeanor under New York law. Janet Wallace, DAB CR358, at 3
(1991)
(ALJ Decision). The plea related to Petitioner's failure to give
a
nursing home patient who was under her care a prescribed dose
of
medication. We affirm the ALJ Decision for reasons stated below.
BACKGROUND
Petitioner pled guilty to violating certain of New York's Public
Health
Laws and regulations. Petitioner then received a letter dated
January
22, 1991 from the Inspector General (I.G.) of the Department of
Health
and Human Services (HHS). See Ex. R-8. 2/ The letter
notified her that
she was being excluded from participation in the Medicare
and Medicaid
programs for five years under sections 1128(a)(2) and (c)(3)(B)
of the
Social Security Act.
Petitioner appealed her exclusion to the Departmental Appeals Board,
Civil
Remedies Division. On October 11, 1991, Administrative Law Judge
Joseph
K. Riotto upheld her exclusion. This appeal followed.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
The ALJ Decision was based on the following FFCLs:
1. On January 27, 1989, Petitioner was employed
as a Licensed
Practical Nurse at the Blossom Health Care Center, located in
Rochester,
N.Y.
2. On January 27, 1989, despite having been
instructed to do so,
Petitioner willfully failed to administer a dose of
Coumadin, an
anticoagulant medication, to Alice Meister, a patient under her
care who
suffered from heart disease.
3. Petitioner subsequently made a false entry
on Ms. Meister's
chart stating that she - Petitioner - had, in fact, given
the Coumadin
as prescribed.
4. Petitioner pled guilty to violating Section
12b-2 of the New
York State Public Health Law, in connection with Section
2803(d)(7) of
the New York State Public Health Law and Part 81 of the
regulations
promulgated thereunder. Such laws provide, in pertinent
part,
penalties, including fines and imprisonment, for persons who
willfully
abuse, mistreat, or neglect patients. Part 81 of the
regulations
expressly includes failure to provide medication in its
definition of
neglect.
5. Petitioner's plea herein satisfies the
statutory requirement
that there have been a conviction of a criminal
offense.
6. On June 19, 1990, the Rochester City Court
sentenced Petitioner
to 100 hours of community service and gave her a
one-year conditional
discharge.
7. The sentencing court gave Petitioner a
Certificate of Relief
from Disabilities. This document states on its
face, inter alia, that
it relieves the holder of all "bars to employment" and
that the
conviction specified therein shall not cause automatic forfeiture of
any
license or employment.
8. Such Certificate does not preclude HHS from
barring Petitioner
from participation in the Medicaid and Medicare
programs.
9. The Secretary of HHS delegated to the I.G.
the authority to
impose exclusions pursuant to Section 1128 of the Act.
10. Petitioner was convicted of a criminal offense
relating to
patient abuse or neglect in connection with the delivery of a
health
care item or service, thus justifying her five-year exclusion
from
participation in the Medicare and Medicaid programs.
ALJ Decision at 2-3 (citations omitted).
PETITIONER'S EXCEPTIONS
Petitioner raised six issues and objected to six FFCLs. See
generally
Petitioner's Appeal. First, Petitioner objected to the
finding that her
failure to administer the medication was willful.
Second, Petitioner
objected to the finding that her entry on the patient's
chart was false.
Third, Petitioner objected to the finding that she 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.
Fourth,
Petitioner asserted that the Certificate of Relief from
Disabilities
issued by the state court bars her exclusion from Medicare and
Medicaid.
Fifth, Petitioner objected to the exclusion on the alleged grounds
that
it violates the Double Jeopardy Clause of the Fifth Amendment to
the
Constitution. Sixth, Petitioner argued that summary disposition of
the
case by the ALJ was inappropriate because Petitioner was entitled to
a
hearing to explain the circumstances surrounding her conviction. 3/
Specifically, Petitioner objected to FFCL Nos. 2, 3, 4, 5, 8, and
10.
Petitioner's Appeal at 2-4. We note that Petitioner did not object
to
FFCL Nos. 1, 6, 7 and 9, and we therefore affirm and adopt those
FFCLs
without further discussion.
ANALYSIS
The Appellate Division has a limited role as the forum for
administrative
review of an ALJ's decision in an exclusion case. The
standard of
review on disputed issues of fact is whether the ALJ
Decision is supported by
"substantial evidence." The standard of review
on disputed issues of
law is whether the ALJ Decision is "erroneous."
Joyce Faye Hughey, DAB 1221,
at 11 (1990); Lakshmi N. Murty Achalla, DAB
1231, at 7 (1991). Below,
we address both the general issues raised by
Petitioner on appeal and the
particular objections stated in
Petitioner's exceptions to certain of the
FFCLs. Under the applicable
standard of review, we conclude that the
ALJ Decision was correct. Thus
we affirm and adopt each of the
contested FFCLs and affirm the five-year
exclusion imposed on Petitioner.
I. The ALJ did not err in concluding that
Petitioner willfully
failed to administer a dose of Coumadin to a
patient.
Petitioner objected to FFCL No. 2, which concluded that she
"willfully
failed to administer a dose of Coumadin." For this FFCL, the
ALJ relied
in part on the transcript of the proceeding during which
Petitioner pled
guilty (plea colloquy). See Ex. R-2. Petitioner
stated that the plea
colloquy supports her position that her failure to
administer this
medication was not willful. Petitioner's Appeal at
2. In response, the
I.G. argued that the ALJ properly found that
Petitioner's failure to
administer the drug was willful based on the plea
colloquy and the
express terms of the statute to which she pled guilty.
Furthermore, the
I.G. argued that Petitioner admitted that she knew she was
required to
administer the medication but did not. I.G. Brief at 2-3
(citing Ex.
R-2 at 4, 7, 10).
In her plea colloquy, Petitioner admitted that she "willing, fully
[sic]
and knowingly failed to give a medication . . . ." See Ex. R-2 at
10.
Furthermore, she pled guilty under New York Public Health Law
section
12b-2 to a willful violation of public health laws. 4/ As the
I.G.
argued before the ALJ, "willful" within the meaning of section
12b-2
does not mean that the act had to be done with bad intention, but
rather
that it was voluntary as opposed to accidental. It means
consciously
and deliberately done, but not necessarily maliciously.
I.G. Reply
Brief Before ALJ, at 2 (citing People v. Coe, 501 N.Y.S.2d 997,
aff'd
510 N.Y.S.2d 470, aff'd 527 N.Y.S.2d 741, 522 N.E.2d 1039 (1986);
People
v. Flushing Hospital & Medical Center, 471 N.Y.S.2d 745
(1983)). Thus,
we find that the ALJ did not err in concluding that
Petitioner's conduct
in failing to administer the drug was willful, and we
affirm and adopt
FFCL No. 2. 5/
II.
The ALJ's finding that Petitioner made a false entry on
a patient's chart was
based on substantial evidence.
Petitioner objected to FFCL No. 3, which found that she made a false
entry
on the patient's chart stating that Petitioner had given the
patient the
medication prescribed. Petitioner argued that her entry in
the chart
was not deliberately false but rather an error due to her own
illness that
day. She also argued that all charges relating to the
falsification of
records were dismissed at the time of her plea.
Petitioner's Appeal at
2-3.
The I.G. conceded that Petitioner's entry in the patient's record
properly
could have been characterized by the ALJ as incorrect or
erroneous (rather
than false) and that charges on this count were
dismissed. The I.G.
argued, however, that this finding by the ALJ was
gratuitous and was not
relied upon in determining that Petitioner's
exclusion was mandated by
law. I.G. Brief at 2, n.2.
A common definition of false is "not true; in error;
incorrect;
mistaken." Webster's New World Dictionary, Third College
Edition (Simon
& Schuster, Inc. 1988). Petitioner admitted in her
plea colloquy that
she made an entry in the patient's medical chart in which
she "in
correctly [sic] or falsely" indicated that the drug had
been
administered. Ex. R-2 at 7-8. This would constitute a false
entry. As
apparent from the common dictionary definition, in order for
something
to be false, it only has to be an error or mistake; it does not
have to
be deliberately false.
The exclusion was grounded on the criminal conviction under state
law,
which was based on the failure to give medication and not on the
false
entry in the patient's chart. While we agree with the I.G. that
this
finding of fact was not necessary to the ALJ's conclusion
that
Petitioner's exclusion was mandated by law, this finding was based
on
substantial evidence and a reasonable use of the term
"false."
Therefore, we affirm and adopt FFCL No. 3.
III.
The ALJ's conclusion that Petitioner's exclusion under
section 1128(a)(2) was
mandated under the law was not erroneous.
Petitioner asserted that the ALJ erred in concluding that she
was
convicted of an offense relating to the neglect or abuse of
patients.
Petitioner objected to FFCL Nos. 4, 5, and 10, which collectively
found
that Petitioner pled guilty to violating certain New York Public
Health
Laws (FFCL No. 4); that the guilty plea constituted a conviction of
a
criminal offense (FFCL No. 5) relating to the neglect or abuse
of
patients in connection with the delivery of a health care item
or
service (FFCL No. 10); and that Petitioner's exclusion under
section
1128(a)(2) was therefore mandated by law (FFCL No. 10).
Petitioner's
Appeal at 3-4.
Section 1128(a)(2) provides for the exclusion of "[a]ny individual,
or
entity that has been 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."
Section
1128(c)(3)(B) provides that "[i]n the case of an exclusion
under
subsection (a), the minimum period of exclusion shall be not less
than
five years . . . ." As is apparent from the language,
section
1128(a)(2) has four elements: the individual or entity 1) must
have
been convicted, 2) of a criminal offense under state or federal law,
3)
relating to neglect or abuse of patients, 4) in connection with
the
delivery of a health care item or service.
A. Petitioner was convicted of a criminal
offense under
state law in connection with the delivery of a health
care item
or service.
In order to be excluded under section 1128(a)(2), a person must have
been
convicted of the offense at issue. Section 1128(i)(3) states that
a
guilty plea accepted by a state court is considered a conviction for
purposes
of the statute. On April 30, 1990, Petitioner pled guilty to
the
willful violation of certain New York public health laws. Ex. R-2
at
9-10. Petitioner conceded before the ALJ that she was convicted
within
the meaning of section 1128(i). I.G. Brief Before ALJ (citing
the ALJ's
Prehearing Order), at 6, n.2. Therefore, since Petitioner
conceded she
was convicted within the meaning of the statute, we affirm
and adopt FFCL No.
5. We also affirm and adopt that portion of FFCL No.
10 which finds
that Petitioner was convicted.
To fall under section 1128(a)(2), the conviction must have been of
a
criminal offense under federal or state law. Petitioner pled guilty
to
section 12b-2 of the New York Public Health Law, a section which
carries
a maximum penalty of up to one-year imprisonment, a fine of $2,000,
or
both. Under New York criminal law, a misdemeanor is a crime
punishable
by imprisonment not to exceed one year. A crime is defined
as a
misdemeanor or a felony. See New York Criminal Law .. 10.00(4) and
(6).
Therefore, the ALJ did not err in concluding in FFCL No. 10
that
Petitioner pled guilty to a criminal offense under state law, and
we
affirm and adopt that portion of FFCL No. 10.
A third element for an exclusion under section 1128(a)(2) is that
the
offense had to be in connection with the delivery of a health care
item
or service. Petitioner did not argue that her failure to give
a
prescription medication to a patient under her care in a
nursing
facility falls outside the purview of delivery of a health care item
or
service. In at least one previous decision, the Board held that
failure
to provide an item or service (as opposed to incorrectly or
wrongfully
providing) constituted an offense "related to the delivery of an
item or
service" and was a violation of the section 1128(a)(1)
mandatory
exclusion provisions. See Francis Shaenboen, DAB 1249
(1991)
(pharmacist's acts of fraudulently billing Medicaid for
prescription
drugs which had not been prescribed or dispensed related to the
delivery
of an item or service and subjected the petitioner to the
mandatory
exclusion provisions). We find that the ALJ did not err in
concluding
in FFCL No. 10 that Petitioner's conviction was in connection with
the
delivery of a health care item or service, and we affirm and adopt
that
portion of FFCL No. 10.
B. Petitioner's offense related to
neglect or abuse of
patients.
Section 1128(a)(2) requires that the criminal conviction relate to
the
neglect or abuse of patients. In excepting to FFCL No. 10,
Petitioner
argued that she pled guilty to an unclassified misdemeanor
regarding the
willful violation of health laws and that there was no colloquy
or
finding that any patient was abused or neglected. Petitioner's
Appeal
at 3. The I.G. argued in response essentially that Petitioner
pled
guilty to actions which clearly constituted the neglect of a patient
and
that the plea colloquy found so. I.G. Brief at 3-4 (citing Ex. R-2
at
6, 7).
Petitioner pled guilty to violating section 12b-2 in connection
with
section 2803-d(7) of the New York Public Health Law and Part 81 of
the
regulations implementing section 2803-d(7). Ex. R-2 at 9.
Section
2803-d(7) provides:
In addition to any other penalties prescribed by law, any
person
who commits an act of physical abuse, neglect or
mistreatment,
or who fails to report such an act as provided in this
section,
shall be deemed to have violated this section and shall
be
liable for a penalty pursuant to section twelve of this
chapter
after an opportunity to be heard pursuant to this section.
Section 12b-2 provides:
A person who wilfully violates any provision of this chapter,
or
any regulation lawfully made or established by any
public
officer or board under authority of this chapter, the
punishment
for violating which is not otherwise prescribed by this
chapter
or any other law, is punishable by imprisonment not
exceeding
one year, or by a fine not exceeding two thousand dollars
or
both.
Part 81 of the regulations expressly includes failure to
provide
medication in its definition of "neglect." 6/
We find that Petitioner did in fact plead guilty to an offense relating
to
the neglect or abuse of patients. While New York Health Law
section
12b-2 does not itself relate specifically to neglect or abuse
of
patients, Petitioner pled guilty to "Public Health Law 12b-2
in
connection with Section 2803(d)(7) of the Public Health Law and Part
81
of the regulations promulgated thereunder." Ex. R-2 at 9, 10
(emphasis
added). Section 2803(d)(7) specifically relates to neglect
and abuse of
patients. Furthermore, Petitioner's plea colloquy
discusses the facts
surrounding her charge in some detail. The charge
involved her failure
to give medicine to a nursing home patient under her
care. Ex. R-2 at
6-8. Part 81 of the regulations defines
"neglect" to include failure of
a health care provider to give prescribed
medication. 7/ Therefore, we
affirm and adopt FFCL No. 4.
Even if the statutes and regulation involved in Petitioner's
conviction
had not been clear on their face, the common and ordinary meaning
of the
terms "abuse" and "neglect" would establish that Petitioner's
conviction
related to the abuse or neglect of a patient. See Summit
Health Limited
at 8 (where not defined by statute, terms "neglect" and
"abuse" are
given their ordinary meaning within the purpose of the
statute).
A common definition of "neglect" is "to fail to care for or attend
to
sufficiently or properly." Webster's New World Dictionary,
Third
College Edition (Simon & Schuster, Inc. 1988). This would
suggest that
neglect can be unintentional or accidental, as there is nothing
in the
definition suggesting that there must be a purposeful or
malicious
failure to act. Petitioner's plea colloquy and brief indicate
that
Petitioner failed to give a patient under her care her
prescribed
medication. Ex. R-2 at 6-8. This is clearly a failure
to attend to
sufficiently or properly and falls within the definition of
neglect
within its common and ordinary meaning.
We find that the ALJ was correct in concluding that
Petitioner's
conviction related to the neglect or abuse of patients.
The nursing
home patient was under Petitioner's care, and Petitioner failed
to give
the patient her prescribed medication. This constitutes neglect
under
both the definition provided by state law and the common sense
and
dictionary definitions of the word as applied to the purposes of
section
1128(a)(2). We therefore affirm and adopt that portion of FFCL
No. 10
which found that Petitioner's conviction related to the neglect or
abuse
of patients. Since Petitioner's conviction also meets the other
three
elements of section 1128(a)(2), we find that Petitioner's exclusion
was
mandatory under the law. Thus, we affirm and adopt FFCL No. 10 in
its
entirety.
IV. The ALJ's conclusion that the Certificate of
Relief issued by
the state court does not bar the exclusion was not
erroneous.
Petitioner was awarded at the time of sentencing a "Certificate of
Relief
from Disabilities." FFCL No. 7. The certificate states that
it
shall:
[r]elieve the holder of all forfeitures and of all
disabilities
and bars to employment, excluding the right to retain or
be
eligible for public office, by virtue of the fact that
this
certificate is issued at the time of sentence.
FFCL No. 7. The reverse side of the certificate states that it
prevents
the automatic forfeiture of a license or employment based on
the
conviction. It also states that it does not prevent any
judicial,
administrative, or licensing body from exercising its discretion
to
suspend any license, authority or privilege. See Ex. R-5.
Petitioner
objected to FFCL No. 8 in which the ALJ concluded that the
Certificate
of Relief from Disabilities did not preclude Petitioner's
exclusion
under the law. Petitioner argued that the Certificate
precludes the use
of her state court conviction as a basis for mandatory
exclusion from
Medicare and Medicaid. Petitioner's Appeal at 4.
The I.G. argued that the granting of the certificate does not expunge
the
underlying conviction. The I.G. then cited additional cases for
the
principles that states cannot frustrate the enforcement of federal
laws;
that federal law prevails to the extent that state and federal
law
conflict; and that relief granted by state certificates has been held
to
bar only forfeitures of employment based on state law. I.G. Brief at
4
(incorporating by reference I.G. Brief Before ALJ, at 5, n.1.)
Of all of the cases cited by the I.G., the one most applicable to
the
facts of this case is Nass v. Local 348, Warehouse Production et.
al.,
503 F. Supp. 217 (E.D.N.Y. 1980). In Nass, plaintiff held office
in a
labor union. As a result of certain actions he took while
holding
office, he pled guilty under New York law to conspiracy to commit
labor
bribery and was fined. The New York state court issued plaintiff
a
Certificate of Relief from Disabilities identical to the one issued
to
Petitioner in this case. Id. Soon thereafter the union, along
with the
U.S. Secretary of Labor, sought to remove plaintiff from holding
office
in the union. This removal was based on a federal law which
prohibits
anyone from holding office in a union who has been convicted of
certain
crimes, including the one which plaintiff committed, for five
years.
Plaintiff argued that the Certificate of Relief from
Disabilities
prohibited the Secretary of Labor and the union from removing
him from
office. Id.
The court did not agree. While noting that the certificate
would
prevent a forfeiture of office if based on state law, it stated
that:
[i]t is a fundamental constitutional principle that
where
Congress has entered a field it may lawfully regulate,
federal
law prevails to the extent that State and federal law
conflict.
Id. at 219-20. The court then noted the extensive involvement of
the
federal government in the labor union area, and stated that to allow
the
state to bar enforcement of the federal law would be to frustrate
and
override federal law in violation of the Supremacy Clause (U.S.
Const.
art. VI, . 2). The court also noted the remedial purpose of the
federal
law, namely protecting labor union members from the corrupt practices
of
union officers, in finding that the state certificate could not
override
federal law. Nass, 503 F. Supp. 217, 221.
We find the situation in Nass to be very similar to the facts of
this
case. Like in Nass, Petitioner was convicted under state law of
an
offense and was issued a certificate of relief. However, the
state
conviction triggered mandatory action under a federal law which
was
designed to protect a federal interest. In this case, that interest
is
protecting patients receiving services under Medicare and Medicaid
from
being treated by health care providers who have had convictions
for
neglecting or abusing patients. We therefore find that based on
the
Supremacy Clause issues as applied to certificates of relief, which
were
resolved in Nass, the ALJ properly found that Petitioner's
mandatory
exclusion under section 1128(a)(2) was not precluded by the
Certificate
of Relief from Disabilities issued by the New York court.
We therefore
affirm and adopt FFCL No. 8.
V. Petitioner's exclusion does not violate
the Double Jeopardy
Clause of the Constitution.
Petitioner argued that her exclusion from Medicare and Medicaid
was
punitive, severe, and constituted punishment for the same crime twice
in
violation of the Double Jeopardy Clause of the Fifth
Amendment.
Petitioner's Appeal at 5. Petitioner cited U.S. v. Halper,
490 U.S. 435
(1989), in support of her position. The I.G. argued that
Petitioner
cannot raise this issue before the Board because it was not
presented to
and ruled on by the ALJ. The I.G. further argued that
there is no merit
to Petitioner's double jeopardy argument because Halper has
been
distinguished by prior Board decisions and has been held inapplicable
to
exclusion cases which involve only remedial sanctions. I.G. Brief
at
1-2, n.1.
The guidelines applicable to review by the Appellate Panel expressly
state
that it will not consider issues which could have been presented
to the ALJ
but were not. Guidelines, Appellate Review of Decisions
of
Administrative Law Judges in "Exclusion Only" Cases, . III(c).
8/ In
any event, we find no merit to Petitioner's argument that
Halper
requires a finding that the mandatory exclusion provision violates
the
Fifth Amendment prohibition against double jeopardy.
Halper involved a defendant who was penalized under the federal
criminal
False Claims Act of submitting multiple false claims for
reimbursement
under the Medicare program. After conviction and
sentencing, the court
then granted the government, in a separate suit against
the defendant,
additional civil remedies that bore no rational relation to
the
government's actual loss. The U.S. Supreme Court found that
this
constituted a violation of the defendant's right against
double
jeopardy. Halper, 490 U.S. at 452.
The Board has distinguished the Halper case from exclusion cases,
noting
that in exclusion cases,
the case against the Petitioner is not one where the
Federal
Government has subjected him to criminal prosecution and is
now
seeking an additional "make whole" civil remedy.
Rather,
following the Petitioner's criminal conviction (as defined
by
section 1128(i) of the Act) in State court, the
Federal
Government simply moved to apply the minimum sanction
available
in order to protect program integrity. There is no
evidence
that the Government's action is anything other than
consistent
with the acknowledged purpose of section 1128 of the
Act.
Shaenboen, at 8. The Board found that the mandatory exclusion
provision
is not comparable to the civil penalty imposed in Halper but is
remedial
in nature.
Federal district courts and the Board have specifically found
that
exclusions under section 1128 are remedial in nature, rather
than
punitive, and do not violate the double jeopardy provisions of
the
constitution. See Manocchio v. Sullivan, 768 F. Supp. 814 (S.D.
Fla.
1991); Greene v. Sullivan, 731 F. Supp. 838 (E.D. Tenn. 1990); John
N.
Crawford, M.D., DAB 1324 (1992). Therefore, we find no merit
to
Petitioner's double jeopardy argument.
VI.
Summary disposition of the case by the ALJ was
appropriate.
The ALJ summarily decided Petitioner's claim without a hearing.
Petitioner
requested a hearing, arguing that there were material issues
of fact as to
whether her conviction was based on neglect or abuse of
patients. She
argued that fundamental fairness required that she be
given an opportunity to
present the circumstances surrounding her
conviction. Petitioner then
asserted that her "negligence in coming
into work when she was clearly
extremely ill does not constitute a crime
relating to patient abuse or
neglect." Petitioner's Appeal at 4.
The I.G. moved for summary disposition on the grounds that there were
no
disputed issues of material fact. I.G. Brief at 2. The I.G.
argued
that Petitioner's level of intent in failing to give the medication
was
irrelevant because the criminal conviction itself triggered
the
exclusion. The I.G. asserted that section 1128(a) makes
consideration
of any factors underlying a conviction irrelevant to a
mandatory
exclusion. I.G. Brief at 4.
An ALJ has the authority to summarily decide a claim when there are
no
disputed issues of material fact. See, e.g., Summit Health Limited
(ALJ
decided case on summary judgment where there were only legal matters
to
be decided); 42 C.F.R. .1005.4(b)(12) (January 29, 1992). In
granting
summary disposition, the ALJ stated that, even accepting
wholly
Petitioner's version of the facts, she was still convicted of a
criminal
offense relating to patient neglect or abuse in connection with
the
delivery of a health care item or service. ALJ Decision at
4.
Therefore, he had no authority to reduce or waive the
five-year
exclusion. Since he could not reduce or waive the exclusion,
there was
no cause for a fact-finding hearing.
We conclude that summary disposition was appropriate in this case.
As
the ALJ stated, he may receive evidence to resolve factual
ambiguities.
Id. However, this presupposes that the factual issues
which would be
resolved at a hearing would have a potential bearing on the
outcome of
the case (i.e., they would be "material"). In this case, the
ALJ found
that even if all benefits of the doubt were resolved in favor
of
Petitioner, the outcome would still be mandated because it was
clear
that her conviction related to patient abuse or neglect.
We agree. Petitioner did not deny that the offense to which she
pled
guilty was that she failed to administer medication having
been
instructed to do so. Similarly, she did not deny that the plea
colloquy
accurately detailed the New York State statutory and
regulatory
provisions she was convicted of violating. Therefore, the
record before
the ALJ contained material evidence, the plea colloquy, which
was
undisputed and which established that section 1128(a)(2) applied.
In
light of the undisputed material evidence before the ALJ, he
correctly
determined that the factual circumstances of her offense upon which
she
sought a hearing were not relevant.
Where section 1128(a) applies to facts that are not disputed, the
Social
Security Act makes consideration of factors underlying the
criminal
conviction irrelevant where Petitioner is given the statutory
minimum
five-year exclusion. See Francis Shaenboen, at 9 (1991).
Furthermore,
Petitioner cannot use the administrative review remedies
available to
her to collaterally attack a state criminal conviction.
Richard G.
Philips, D.P.M., DAB CR347 (1991). Petitioner had an
opportunity to
have a full trial on the merits before the state court; she
should have
availed herself of that opportunity to explain the facts and
challenge
the charges if she believed there was no merit to them.
CONCLUSION
We conclude that the ALJ was correct that Petitioner's exclusion
from
participation in Medicare and Medicaid for five years was mandated
by
section 1128(a)(2) of the Social Security Act and was decided
properly
on summary disposition without a hearing. We further conclude
that the
Certificate of Relief from Disabilities issued by the State of New
York
does not preclude the exclusion, and that the mandatory
exclusion
provision does not violate.constitutional provisions against
double
jeopardy. Thus we affirm and adopt FFCL Nos. 2, 3, 4, 5, 8, and
10 and
uphold the five-year exclusion imposed by the I.G.
___________________________
Donald
F. Garrett
___________________________
Theodore
J. Roumel
Public Health Service
__________________________
Cecilia
Sparks Ford
Presiding Board Member
1. The state health care programs from which Petitioner was
excluded
are those listed in section 1128(h) of the Social Security Act
and
include programs funded under titles XIX, V, and XX. The
term
"Medicaid" is used in this decision to represent all state health
care
programs from which the I.G. directed that Petitioner be excluded.
2. All citations in this format refer to the Inspector
General's
exhibits presented to the ALJ and forwarded to the appellate
division.
3. Petitioner also excepted to footnote two of the ALJ Decision,
which
admitted all eight of the I.G.'s exhibits before the ALJ into
the
record. That footnote stated that "Petitioner did not contest
the
authenticity or relevancy of these exhibits." Petitioner excepted
to
footnote two as applied to a press release (Ex. R-7). Petitioner
based
this exception on her brief before the ALJ which stated on page
seven
that "Petitioner objects to the inclusion of a `press release' as
part
of the record in these proceedings." While the ALJ is
technically
correct, since Petitioner did not literally object to the
document's
authenticity or relevance, it is clear the Petitioner did not
agree that
the press release ought to be included in the record in this
matter.
Since the ALJ did not cite to this document or rely on its contents
in
any way, any possible error by the ALJ in not more fully addressing
the
Petitioner's objection is harmless. Thus, this exception presents
no
basis for disturbing the ALJ's decision.
4. See text of New York Public Health Law 12b-2, infra, at 9.
5. We do note, however, that such a finding was not necessary to
the
ALJ's conclusion that Petitioner's exclusion was mandated by law.
We
have previously concluded that the level of intent of the individual
in
committing the offense is not relevant under section 1128(a).
See
Summit Health Limited, DAB 1173, at 9 (1990).
6. Petitioner did not dispute the accuracy of the I.G.'s reference
to
Part 81 as defining the term "neglect" to include "the failure
to
provide medication to a patient of a residential health care
facility."
See I.G. Brief Before ALJ, at 4. Nor did Petitioner deny
that Blossom
Health Care Center was a "residential health care facility"
within the
meaning of Part 81.
7. We note that we are not bound under section 1128(a)(2) to define
the
terms "abuse" and "neglect" with reference to state law. See
Summit
Health Limited at 8.
8. A copy of these guidelines were sent to Petitioner with the
ALJ