Carolyn Westin, DAB No. 1381 (1993) Department of Health and Human Services DEPARTMENTAL APPEALS BOARD Appellate Division ) In the Case of: ) DATE: January 19, 1993 ) Carolyn Westin, ) Docket No. C-391 ) Decision No. 1381 Petitioner, ) ) - v. - ) ) The Inspector General. ) ) FINAL DECISION ON REVIEW OF ADMINISTRATIVE LAW JUDGE DECISION Carolyn Westin (Petitioner) appealed a decision by Administrative Law Judge (ALJ) Edward D. Steinman issued on August 24, 1992. See Carolyn Westin, DAB CR229 (1992) (ALJ Decision). The ALJ upheld a determination by the Inspector General (I.G.) excluding Petitioner from participation in Medicare, Medicaid, and other federally funded state health care programs for five years. Based on the following analysis, we affirm the ALJ Decision and adopt each of the findings of fact and conclusions of law (FFCLs) in that decision except FFCL 14, which we strike as unsupported. Background In 1989, the Adams County (Colorado) District Court accepted Petitioner's plea of nolo contendere to Count Four of a criminal indictment which had been returned in 1985 in the Denver District Court. Count Four charged Petitioner with "Willful Disregard of Colorado Department of Health Regulation . . . ." I.G. Exhibit (Ex.) 3, at 1. The narrative portion of the indictment relating to this count identified the regulation in question as Chapter VI, 4, 4.3(4) and Chapter V, 4, 4.5(4), 6 CCR 1011-1, and quoted the regulation as providing that "[a]ccidents and incidents resulting in possible patient injury shall be reported on special report forms. . . . A copy of report shall be filed in the patient's medical record." According to the indictment, the incident to which Count Four related occurred in 1984, when a nurse at the nursing home of which Petitioner was the administrator found a patient entrapped between the rail and the frame of her bed. The patient required emergency resuscitation and was airlifted to a hospital, where she later died. No report of this incident was ever filed. Although Petitioner's nolo contendere plea to Count Four of the indictment was accepted, the court deferred judgment and sentence for one year and dismissed the count the following year in accordance with Petitioner's plea agreement. Petitioner's exclusion was based on section 1128(a)(2) of the Social Security Act (Act), which mandates exclusion from Medicare and State health care programs 1/ for any individual or entity "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." Any such exclusion must be imposed for at least five years. Section 1128(c)(3)(B) of the Act. The ALJ Decision In his decision, the ALJ noted that, in Vicky L. Tennant, DAB CR134 (1991), he had sustained a five-year exclusion based on facts which were "essentially identical" to the facts of this case. ALJ Decision at 6. Tennant was the director of nursing for the nursing home of which Petitioner was administrator, and was indicted based on the same incident in question here, and pled nolo contendere to the same offense. The ALJ stated that Petitioner had not offered any evidence to distinguish her case from Tennant, nor had she presented any evidence that Tennant was incorrectly decided. The ALJ thus sustained the exclusion against Petitioner for the reasons set forth in Tennant, which are summarized below. In Tennant, the ALJ first addressed the issue of whether Tennant was "convicted" even though the case against her was ultimately dismissed following the same procedure as in Petitioner's case. The ALJ noted that section 1128(i)(3) provides that an individual is convicted "when a plea of guilty or nolo contendere by the individual . . . has been accepted by a Federal, State, or local court," while section 1128(i)(4) provides that an individual is convicted "when the individual . . . has entered into participation in a first offender, deferred adjudication, or other arrangement or program where judgment of conviction has been withheld." The ALJ found that since Tennant pled nolo contendere, her plea was accepted, and she was accepted into a deferred adjudication program, there was a conviction within the meaning of both of these provisions. He stated that it was the fact of the conviction itself, as defined in these provisions, that gives the I.G. the authority to exclude, and that the date upon which the state criminal action was dismissed was thus irrelevant for purposes of the Act. In Tennant, the ALJ also addressed the issue of whether Tennant's conviction related to neglect or abuse of patients in connection of the delivery of a health care item or service within the meaning of section 1128(a)(2). The ALJ found that, as the director of nursing, Tennant had a duty to ensure that an incident report was filed with respect to any incidents which could harm a patient. The ALJ further found that Tennant's failure to ensure that the incident report was filed directly related to her duty to care not only for the patient involved in the incident but for other patients who might suffer injuries as a result of a similar incident, and amounted to patient neglect in connection with the delivery of a health care item or service. The ALJ stated that it was not necessary to find that Tennant was convicted of neglect or abuse of a patient as long as the act which triggered the conviction was an act of neglect. The ALJ also ruled that it was proper to rely on Tennant's indictment, as well as on the document admitted at the sentencing hearing as the factual basis for her plea, in order to determine whether her conviction met the elements of section 1128(a)(2). Finally, the ALJ concluded in Tennant that since Tennant's offense met the statutory requirements of section 1128(a)(2), a five-year minimum exclusion was required and he had no discretion to modify that exclusion. Discussion of Issues on Appeal On appeal, Petitioner took exception to 19 of the 24 FFCLs in the ALJ Decision upholding her exclusion. In addition, Petitioner argued that the exclusion should be dismissed on numerous other grounds not related to a specific FFCL. We have divided Petitioner's arguments into four categories: (1) arguments related to whether she was "convicted;" (2) arguments related to whether her conviction was related to neglect or abuse of patients; (3) arguments that could be characterized as constitutional claims; (4) arguments raising factual disputes. The ALJ's wholesale incorporation by reference of his legal analysis from the Tennant case apparently caused him to overlook some of Petitioner's unique contentions, made it difficult for us to determine what parts of the ALJ Decision addressed other contentions, and further contributed to Petitioner's concern that her case was not being given individual attention. It was particularly inappropriate because Petitioner had expressed that concern early in the proceeding and because Petitioner was representing herself. While we conclude that the legal analysis and necessary factual findings in the ALJ Decision are legally sufficient to support the exclusion, the ALJ's approach obliged us to treat Petitioner's objections at length. We have in some instances paraphrased and summarized Petitioner's numerous contentions, many of which we found to be duplicative and overlapping. Even if not expressly mentioned, we have considered each and every one of the arguments made in the briefs and attachments and other documents submitted by Petitioner. As our decision reflects, we concur with the ALJ's conclusion that Petitioner was convicted of a criminal offense related to patient neglect in connection with the delivery of a health care service and that her exclusion from Medicare and Medicaid for five years is mandated by law. 1. CONVICTION Many of Petitioner's objections are based upon her contention that she was not actually "convicted" of a crime because, after she pled nolo contendere, she was placed on probation for one year, after which time the county court dismissed her plea "nunc pro tunc." 2/ According to Petitioner, the ALJ erred because the "conviction" in this case does not meet "the general legal understanding of that action" (10/10/92 appeal brief (app. br.) at 3), and because her counsel and state court had both explained to her that this arrangement would result in expungement of her record as if no conviction had occurred. 3/ The ALJ correctly held that the definition of "convicted" to be applied in determining whether an exclusion was authorized here is found in section 1128(i) of the Act. The ALJ found that Petitioner met two parts of that definition -- she had had a plea of nolo contendere accepted by a court (section 1128(i)(3)) and she had entered into participation in a deferred adjudication program (section 1128(i)(4)). If there were no definition of "convicted" in the Act, then Petitioner's arguments about whether a conviction exists as commonly understood or for state law purposes would be relevant. 4/ However, Congress has defined for the ALJ and this Board what "convicted" means for purposes of section 1128 and that definition is binding on us. Moreover, it is clear from the legislative history of this provision that Congress adopted such broad definitions to ensure that exclusions from federally funded health programs would not hinge on state criminal justice policies. The Committee Report recommending adoption of this definition expressly discussed first offender and deferred adjudication programs stating -- These criminal dispositions may well represent rational criminal justice policy. The Committee is concerned, however, that individuals who have entered guilty or nolo pleas to criminal charges of defrauding the Medicaid program are not subject to the exclusion from either Medicare or Medicaid. These individuals have admitted that they engaged in criminal abuse against a Federal health program and, in the view of the Committee, they should be subject to exclusion. H.R.Rep. No. 727, 99th Cong., 2d Sess. 75, reprinted in 1986 U.S.C.C.A.N. 3607, 3665. Although Petitioner in this case pled to a charge amounting to patient neglect rather than fraud, the same policy is applicable here. Petitioner did not except to FFCLs finding that her nolo plea was accepted (FFCL 6) or that she entered into a deferred adjudication program (FFCL 7). Consequently, the ALJ correctly concluded that Petitioner was convicted as defined in section 1128(i) of the Act. Petitioner also objected specifically to FFCLs 16 and 17 which state: 16. Petitioner's plea of nolo contendere constitutes a conviction for the purposes of section 1128(a)(2) of the Act. 17. Notwithstanding that Petitioner's plea of nolo contendere was dismissed nunc pro tunc in March 1990, Petitioner's plea constituted a conviction of a criminal offense within the definition of section 1128(i)(3) and section 1128(i)(4) of the Act. ALJ Decision at 5. 5/ Petitioner argued that these FFCLs were erroneous. 6/ She also maintained that since her nolo contendere plea was dismissed before the I.G. began his exclusion action, it could not be used as the basis for an exclusion. However, as noted previously, the statute specifically provides that an individual whose plea has been accepted by a court is "convicted." There is nothing in the statute which indicates that this definition does not apply if the nolo contendere plea is subsequently dismissed; in fact, the definition expressly includes individuals whose charges are dismissed as part of a deferred adjudication or first offender program. Although, technically, these FFCLs are incomplete because they refer only to the nolo contendere plea and not to its acceptance, or the deferred adjudication, we see no reason to modify them in light of FFCLs 6 and 7 which make the requisite findings. Petitioner also excepted to FFCLs 3 and 4, which provide: 3. On November 8, 1985, a criminal indictment was returned in the Denver (Colorado) District Court, against Petitioner, Victoria Tennant (Vicky L. Tennant), and T & S Leasing, Inc., DBA Aspen Care Center West. 4. Petitioner was charged with one felony and four misdemeanors. Petitioner argued that the charges in the indictment were not properly considered because all of the counts except Count Four were dismissed and that Count Four was maintained only for the purpose of her entering a nolo contendere plea "to end the matter." App. br. at 2. This argument has no merit. Petitioner did not deny that the indictment identified in FFCL 3 was returned or that it charged her with one felony and four misdemeanors. Thus, there is no dispute that the FFCLs are factually correct. Moreover, contrary to Petitioner's argument, in determining whether Petitioner's exclusion was warranted, the ALJ did not take into account the charges against Petitioner which were dismissed initially. Furthermore, the ALJ properly considered Count Four of the indictment since, under section 1128(i)(3), the acceptance of a nolo contendere plea constitutes a conviction regardless of a petitioner's intent in making the plea. Petitioner also objected to FFCLs 9 and 10 which state: 9. Colorado Department of Health regulations at 6 CCR (Code of Colorado Regulations) 1011-1 Ch. V section 4.5.4. provide that: Accidents and incidents resulting in possible patient injury shall be reported on special report forms. The report shall include date, time and place of incident; circumstances of the occurrence, signature of witness; time the doctor was notified; physician's report; signature of person making the report. A copy of report shall be filed in the patient's medical record. 10. Count Four charged that Petitioner unlawfully and willfully violated and disobeyed the provisions of the lawful regulations of the Colorado Department of Health requiring the preparation and maintenance of an incident report to document the circumstances surrounding any unusual occurrence resulting in possible injury to a patient in a licensed nursing home. Petitioner argued that the regulation to which these FFCLs refer was a 1986 regulation which was not applicable to her case since the incident in question occurred in 1984. Petitioner also maintained that -- o the charge was fictitious except for the purpose of entering into the nolo contendere plea; 7/ o the regulation was unclear and it was for that reason that the prosecution wished to settle the case; o she did not know that pleading nolo contendere would result in a finding of neglect, and she presently denied any involvement with patient abuse or neglect; o the IG had to prove that she was required to file an incident report; o and as she was "clothed in innocence," (reply br. at 1) the I.G. must prove (and had not) that she committed patient neglect. All of Petitioner's contentions amount to an attack on her state conviction which must be rejected. We note that the record in this case does not show whether the regulation referred to in FFCLs 9 and 10 was in existence in 1984 because the copy of the regulation in I.G. Ex. 14 is undated, while I.G. Ex. 12 refers to a 1986 regulation. Nevertheless, we conclude that this is not a basis for a finding of error. Count Four of the indictment clearly quotes the text of the regulation as it appears in FFCL 9 as the regulation which Petitioner was charged with violating. Thus, this is the regulation to which Petitioner pled nolo contendere. Since the court accepted her plea, this is the offense of which she was convicted within the meaning of section 1128(a)(2) of the Act. Douglas Schram, R.Ph., DAB 1372 (1992). It is disingenuous of Petitioner to acquiesce to the application of this regulation when it suits her and then later to attack it. If Petitioner wished to argue that the offense identified in Count Four was not an offense under Colorado law at the time the incident occurred, the proper forum for her argument was a state or county court. Id. Under the Act, since the offense only has to be "related to patient neglect," and the relationship between failure to file a required report under the circumstances here is reasonably related to patient neglect, Petitioner had constructive notice that her plea could lead to a finding of patient neglect. Moreover, we have held that an ALJ is not required to determine the "guilt or innocence" of a party as to the conduct on which the state action is based before affirming a petitioner's exclusion by the I.G. Behrooz Bassim, M.D., DAB 1333 at 9-10 (1992). Our conclusion is consistent with the legislative history and purpose of those sections of the Act authorizing derivative exclusions. There would be no point in relying on these actions if they could be reopened and relitigated during the exclusion proceedings. Consequently, all of Petitioner's arguments about her intentions or understandings when she pled nolo contendere, and her claim that she is innocent of any wrongdoing unless the I.G proves her guilty, are irrelevant. As we stated in Peter J. Edmonson, DAB 1330 (1992), It is the fact of the conviction which causes the exclusion. The law does not permit the Secretary to look behind the conviction. Instead, Congress intended the Secretary to exclude potentially untrustworthy individuals or entities based on criminal convictions. This provides protection for federally funded programs and their beneficiaries and recipients, without expending program resources to duplicate existing criminal processes. Edmonson at 4. 2. NEGLECT Petitioner objected to FFCL 20: Petitioner was convicted of a criminal offense relating to neglect or abuse of patients within the meaning of section 1128(a) of the Act. Petitioner contended that the FFCL was erroneous and that the exclusion should be dismissed because (1) the I.G. had never defined the patient abuse or neglect charge against her in enough detail for her to defend against it, even though Petitioner specifically requested such a definition; (2) the I.G. did not prove that she committed patient abuse or neglect; and (3) the I.G. did not prove that her conviction was related to patient abuse or neglect. Upon review of the record in this case, we find that, in addition to having constructive notice from the statute, Petitioner was amply informed of the relevant definition of patient abuse or neglect in this case by the I.G.'s briefs and by decisions supplied to her by the ALJ. The I.G. explained in his motion for summary judgment and in his 3/5/92 response to Petitioner's motions his position that it was not necessary that the words "patient abuse or neglect" be contained in the regulation which Petitioner admitted violating. Instead, since the Act's language provides for exclusions for "convictions . . . related to neglect or abuse of patients in connection with the delivery of a health care item or service," the I.G. contended that the ALJ should examine the conduct underlying the misdemeanor to which Petitioner pled nolo contendere. In addition, the ALJ provided Petitioner with all ALJ and Board appellate cases discussing the application of section 1128(a)(2). See 3/2/92 Letter to Petitioner and I.G. Counsel from Civil Remedies Division Staff Attorney. These cases also informed Petitioner that the ALJ would look to the conduct underlying the offense. See, e.g., Summit Health Limited, dba Marina Convalescent Hospital, DAB 1173 (1990). All of these explanations were provided to Petitioner before she was required to file any briefs in this case; consequently, we find that she had received explanations of the I.G.'s case more than sufficient to prepare her defense. In addition, the ALJ was correct when he determined that the I.G. did not have to prove that Petitioner committed patient abuse or neglect. The I.G. met his burden of proof by establishing that there was a conviction as defined by the Act and that the offense of which Petitioner was convicted was related to patient neglect in connection with the delivery of a health care service. Since we agree with the ALJ that the conviction standing alone, provided the offense was of the type specified by the statute, was sufficient to invoke the mandatory exclusion, we next discuss Petitioner's contentions concerning the ALJ's finding that Petitioner's conviction was for patient neglect. In connection with this, Petitioner argued that there must a "plain English" reading of the Act to require that the court conviction speak for itself; that, in order to use a conviction in this manner, it was required that "neglect" be specifically mentioned during the criminal process so that an accused could defend at that time; that it was inappropriate to use the "factual basis" determination by the state trial judge to determine the nature of the violation she pled to; and that the I.G. did not prove that she had a "duty to report" or that her actions directly impacted on the health and safety of patients under her care. We disagree with Petitioner's contention that the "plain English" reading of the Act mandates exclusion only where a person or entity is convicted of a statute or regulation containing the terms "patient neglect or abuse." To the contrary, the Act specifically provides for exclusion where a party is convicted of a crime "related to" patient neglect or abuse, so the question is whether the criminal offense which formed the basis for the conviction related to neglect or abuse of patients. Because of this wording, it does not matter that the term "neglect" was not specifically mentioned during the criminal process. We reject Petitioner's other contentions about whether her conviction was related to patient neglect. We determine that the ALJ did not err in reaching the following conclusions: o It was appropriate to use the "factual basis" determination used by the state trial judge in determining whether to accept the plea, despite Petitioner's claim that it was adopted for expediency. Petitioner stipulated to its accuracy during the plea hearing. I.G. Ex. 8 at 3. o By proving her nolo contendere plea to the particular section of the Colorado code which establishes that the filing of an incident report is a duty of care owed both to nursing home patients and the public, the I.G. established that the offense of which Petitioner was convicted was a failure to meet a "duty to report" this incident. See I.G. Exs. 13 and 14. o 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. See Tennant at 10-11. Petitioner also objected to FFCL 15, which states: Prior to the death of L.G., Aspen's management was aware of the tragic results that could occur from the improper care of a Huntington's disease patient and the need to take corrective action. This is reflected by the death of V.C., a patient at Aspen, who died of asphyxia in her bed in similar circumstances to L.G. Prior knowledge also arose from a Department review of Aspen in the Spring of 1984. During the course of the review, Petitioner was told that steps had to be taken to protect another Huntington's disease patient whose bedding was observed to be unsafe. Petitioner argued that this FFCL was incomplete because it did not mention other conversations between Petitioner and the Department in which "the Department" agreed that patient L.G. was well cared for. Petitioner indicated that she was unable to document such conversations because the ALJ denied her request for discovery. Petitioner also argued that she has never been involved in anything related to patient abuse or neglect and in fact was an excellent caregiver. We conclude that Petitioner's arguments do not provide a basis for reversing this FFCL. Petitioner did not dispute any of the statements in the FFCL. Even if Petitioner was told on other occasions that this patient or other patients in the nursing home were well cared for, this does not directly contradict the evidence supporting the ALJ's finding about the notice received concerning the need to protect Huntington's disease patients in the home. Thus, it would not affect the result in this case if Petitioner were able to document the conversations referred to in her exception. In addition, Petitioner's other contentions about her treatment of patients are not material here, since, once it is determined that Petitioner's conviction was for a criminal offense relating to patient neglect, her exclusion is mandatory. See Travers v. Sullivan, 791 F.Supp. 1471 (E.D. Wash. 1992). Petitioner objected to FFCL 21 on the ground that the I.G. has not proven the underlying facts. That FFCL states: On May 24, 1991, the I.G. excluded Petitioner from participating in Medicare and directed that she be excluded from participating in Medicaid, pursuant to section 1128(a)(2) of the Act. We construe Petitioner's objection to mean that, in order to exclude her, the I.G. was required to prove such underlying facts as whether the incident occurred. We have already explained at length that the Act requires only that the I.G. prove that Petitioner was convicted of a criminal offense related to patient neglect or abuse and that the I.G. has established that in this case. Consequently, we reject Petitioner's contention. Finally, Petitioner objected to FFCL 23, which provides: The exclusion imposed and directed against Petitioner is for five years, the minimum mandatory period for exclusions authorized pursuant to section 1128(a)(2) of the Act. In addition to Petitioner's claim that the I.G. had not proven his case against her, which we have already discussed and rejected, she noted that in the case of George Iturralde, M.D, DAB CR218 (1992), the same ALJ had upheld an exclusion of only three years. Petitioner asked whether her exclusion should have been for the same period. The Iturralde case involved a permissive exclusion under section of the 1128(b) of the Act; while HHS has discretion to set a period shorter than five years for cases falling under that section, Petitioner's case involves section 1128(a), which requires a minimum period of five years. See section 1128(c)(3)(B) of the Act. 3. CONSTITUTIONAL CLAIMS Petitioner raised several arguments that could be characterized as constitutional claims. Unfortunately, the ALJ did not address any of them, even though nearly all of them had been addressed in prior ALJ or Board decisions which could easily have been cited and discussed by the ALJ. As we discuss below, none of Petitioner's constitutional attacks are meritorious, so we find that the delay in addressing them in this case has caused her no harm. We have divided the issues into two groups: (1) attacks on application of the Act or the implementing regulations as unconstitutional in this case; and (2) contentions related to whether Petitioner received due process in the proceeding before the ALJ. A. There are no constitutional barriers to application of the Act or implementing regulations in this case. Petitioner contended that her exclusion violated the double jeopardy clause of the Constitution because she was being punished twice for the same offense. She maintained that the amount of income she will lose is about $500,000, which renders the exclusion unreasonable and punitive, rather than remedial, in nature. 8/ Accordingly, she argued, the exclusion regulations and statute are unconstitutional as applied and the exclusion should be dismissed. The constitutional ban on double jeopardy protects against multiple prosecutions for an offense by the same government. Section 1128(a) of the Act does not contemplate a federal "prosecution" for an offense separately defined under federal law. Rather, it provides that, whenever an individual has been convicted in a federal, state, or local court, the Secretary must exclude that individual from Medicare and Medicaid. Thus, a mandatory exclusion does not raise the double jeopardy concerns of successive prosecutions by the same government based on the same conduct. See Schram, DAB 1372 at 15. Once the Secretary has determined that a conviction is of the type described in section 1128(a)(2), exclusion is mandatory. See Travers v. Sullivan, 791 F.Supp. 1471 (E.D. Wash. 1992) With respect to Petitioner's claim that the consequences of the exclusion are so great as to constitute a second punishment for the same action, we recognize that the Supreme Court addressed this concern in United States v. Halper, 490 U.S. 435 (1989). That case, however, involved two federal actions, a criminal case followed by a civil monetary penalty action under section 1128A of the Act. While several courts have treated an exclusion action as also raising the question of multiple punishments for the same conduct, they have concluded that the double jeopardy clause was not violated because the intent, as well as the nature and effect, of the exclusion was remedial rather than punitive. Greene v. Sullivan, 731 F. Supp. 838 (E.D. Tenn. 1990); Manocchio v. Kusserow, 961 F.2d 1539 (11th Cir. 1992). The Greene court noted the "apt comparison between the exclusion remedy and professional license revocations for lawyers, physicians, and real estate brokers which have the function of protecting the public and have routinely been held not to violate the double jeopardy clause." 731 F. Supp. 838, 840. In Manocchio the court looked at the legislative history of this provision and concluded that its primary goal was to protect present and future Medicare and Medicaid beneficiaries "from incompetent practitioners and from inappropriate or inadequate care." 961 F.2d 1539, 1542, citing S. Rep. No. 109, 100th Cong., 1st Sess. 1-2 (1987), reprinted in 1987 U.S.C.C.A.N. 682. 9/ The purpose of the exclusion in the case before us is remedial -- to protect beneficiaries from an individual whose trustworthiness Congress has deemed questionable due to a conviction for patient neglect. Although the economic effects on the individual may be adverse, the Act requires that this protection must be provided for a period of five years. Accordingly, we reject Petitioner's double jeopardy claim. Petitioner also contended that since the incident underlying her conviction happened in 1984, well before adoption of the statutory and regulatory provisions governing exclusions, the I.G. is applying the law in an unlawful ex post facto manner. We disagree. In order for a statute to be considered ex post facto, it must be a criminal or penal statute, and it must be retrospective in that it applies to events occurring before its enactment. See Betsy Chua, M.D. and Betsy Chua, M.D., S.C., DAB 1204 (1990). In this case, we have determined that the exclusion provision in the 1987 amendment to the Act is a civil statute imposing a remedial sanction, and not a criminal statute with a penal intent. Furthermore, as this Board has previously held, Congress intended that the 1987 amendment should be applied "prospectively to all convictions occurring on or after August 18, 1987, even though the circumstances leading to the conviction may have occurred prior to that date." See Francis Shaenboen, R.Ph., DAB 1249 (1991), at 6. Thus, the amended exclusion provision does not trigger the constitutional protection from ex post facto laws. See Schram at 18-19. The exclusion in this case, which is based on a 1989 conviction, is remedial in nature and does not violate the prohibition on ex post facto laws. Petitioner also contended that the delay between the incident underlying her conviction and her exclusion by the I.G. denied her a reasonable and speedy disposition of her case, and that the exclusion should therefore be dismissed. The constitutional right to a speedy trial to which Petitioner alluded, however, applies to criminal cases and, as we have already discussed, this exclusion is remedial in nature. Moreover, since the exclusion is based on the conviction, which took place on February 24, 1989, rather than on the underlying incident, which took place in December 1984, the majority of the delay was attributable to the state criminal proceedings. Furthermore, Petitioner was able to receive reimbursement from the programs from which she was ultimately excluded during the period between her conviction and the effective date of her exclusion, June 13, 1991. See 6/13/91 request for a hearing at 5. Consequently, this contention does not provide a basis for dismissal of the exclusion. B. There were no procedural defects in this proceeding that warrant dismissal of the exclusion. Petitioner had numerous complaints about the conduct of the proceeding in her case. We have reviewed them all and determined that Petitioner has received, either at the ALJ stage or through this proceeding, all the process due her. Our analysis follows. 1. Petitioner denied "all facts based on earlier reports" where she had not been allowed to examine the original document and depose the author (app. br., attachment (att.) 1 at 2), denied authenticity of all documents submitted by the I.G. (id.), and challenged the ALJ's admission of I.G. exhibits. 10/22/92 submission at 1. Petitioner's contentions on this score are without merit. Petitioner herself submitted two of the critical documents supporting her exclusion -- the factual basis used by the judge in determining whether to accept the parties' stipulation of plea and judgment and the stipulation itself -- as attachments to her initial appeal of the exclusion. See 6/13/91 request for a hearing, atts. 2 and 3. They are identical to the copies submitted by the I.G. Moreover, there is nothing on the face of these documents nor has Petitioner made any specific allegation or offered any evidence to indicate that they are not genuine copies of the originals, even though she clearly had access to at least the relevant court documents. Consequently, we do not credit her later broad assertions that the ALJ's admission of and reliance upon these documents was improper. 2. Petitioner objected to FFCL 22, which states: There are no disputed issues of material fact in this case and summary judgment is appropriate. Petitioner contended that summary judgment was not appropriate in her case since she disputed almost every issue of material fact and the I.G. had not met his burden of proof. App. br. at 3. Petitioner also complained about the ALJ's denial of her request for any and all documents used by HHS to suggest her involvement in patient neglect, and she claimed that the I.G. had not supplied her with documents to satisfy the regulations' requirements of a "quite fact-specific" prima facie case prior to the hearing process. Petitioner had requested a ruling from the ALJ that the I.G. not be allowed to submit the required documents during the hearing process. We find that the ALJ's summary disposition of this case was proper. As stated above, the fact of Petitioner's conviction of a criminal offense which the ALJ found (and we agree) to be related to patient neglect provided the necessary legal basis for Petitioner's exclusion. As noted above, Petitioner's supposed challenge to the documents submitted by the I.G. was spurious, and none of Petitioner's alleged factual disputes were material and relevant to this critical issue. Thus, summary judgment was appropriate. Moreover, Petitioner's request that the I.G. be prohibited from introducing further evidence was based on her faulty premise that the I.G. failed to make a prima facie case with the exclusion notice. 3. Petitioner challenged FFCLs 18 and 19 which state: 18. Regulations published on January 29, 1992, establish criteria to be employed by the I.G. in determining to impose and direct exclusions pursuant to sections 1128(a)(1) and (2) and (b) of the Act. 19. The Secretary did not intend that the regulations contained in 42 C.F.R. Part 1001, and, in particular, 42 C.F.R.  1001.101, govern my decision in this case. However, even if these regulations did apply, they are consistent with the manner in which section 1128(a)(2) has previously been interpreted by the Departmental Appeals Board, and Petitioner would not be subjected to a different standard of liability, nor to an increased sanction. Petitioner commented extensively on these regulations; attacked the ALJ's denial of her request that the regulations be spelled out in "plain English;" contended that the ALJ did not respond to her comments; and stated that she did not understand why the regulations were not applicable here. She argued that the exclusion should be dismissed since the I.G. did not allege that all of the criteria for exclusion in these regulations were met, and she requested that the assumption be made that not all requirements were met and the exclusion be dismissed. App. br. at 3. Petitioner stated that she believed that these regulations were indeed applicable, and she asked that this Board give her any benefits arising from their application. We have previously ruled in Bassim that the Secretary did not intend for the substantive provisions of these regulations to apply to cases pending before ALJs at the time of their adoption. Moreover, we agree with the ALJ that the regulations had to speak for themselves (see 4/1/92 ruling); and that these regulations did not have any substantive effect in this case because Petitioner is being excluded under a mandatory provision for the minimum time required by statute. FFCL 19. 10/ The ALJ's ruling in his decision effectively responded to Petitioner's comments on the application of these regulations to her case. Finally, since these regulations were inapplicable, Petitioner's contentions about whether the I.G. met their requirements are irrelevant. 4. Petitioner contended that FFCL 24, which states simply that "[t]he exclusion imposed and directed against Petitioner by the I.G. is mandated by law," was based on incorrect conclusions that she was unable to defend against because she is not an attorney, was denied counsel, and was denied discovery. In fact, Petitioner presented numerous allegations and arguments in support of an overall contention that she did not receive a fair hearing on her exclusion case. Petitioner alleged in her reply brief before the ALJ that there existed an unreasonable bias against her as a 44 year old woman. She sought unsuccessfully to be allowed to face her accusers in open forum prior to exclusion; to have a different federal agency hear this case; to have another ALJ who was not familiar with the Tennant case assigned to her case; and to have different counsel assigned to represent the I.G. because of possible bias against her due to a pending personnel dispute between her husband and the regional office in which I.G. counsel was located. Petitioner contended that the process was unfair because she is not a lawyer and her request for agency-appointed counsel was denied; discovery was not permitted of the resumes of all counsel involved in her case (so that she could establish that she was at a disadvantage due to her lack of legal training); the Civil Remedies Division denied her 9/27/91 request that she be advised any time she had a right that she had not exercised; and the ALJ and other attorneys involved did not act as "officers of the court" in explaining what evidence she was supposed to introduce. Petitioner also complained about the ALJ's denial of her request to have the Tennant decision translated into "plain English" and she asked this Board to explain the points as they apply in her case. Petitioner additionally complained that the ALJ failed to rule on all of her motions; that he ruled incorrectly on those which he did address; and that he erred in denying her request for immediate review of those requests which he denied. Our review of the record in this proceeding shows that the ALJ stayed this case for a considerable period of time to allow Petitioner to obtain counsel and, when she determined to proceed pro se, he afforded her great leeway in presenting her case. His rulings concerning the appropriate forum, provision of counsel, and the proper role for himself and that of the other attorneys involved in the case were manifestly correct. 11/ In addition, his position that the Tennant decision had to speak for itself was also correct. We note that despite Petitioner's lack of legal training she made a number of highly sophisticated requests and arguments throughout the course of the proceeding; thus, to the extent that she claimed that the legal standards applicable to her case were difficult to understand, that appears to reflect an unwillingness to accept that her circumstances fall squarely within their parameters. Given that Petitioner's requests were numerous, overlapping, and repetitious, we find that the ALJ's failure to expressly rule on each motion is not a basis for overturning this exclusion. The rationale provided by the rulings of 10-9-91 and 4-1-92 and the ALJ's final decision provided a sufficient response to Petitioner's motions. For example, the ALJ held in his decision that the January 29, 1992 regulations were not applicable to Petitioner's case; thus, without expressly acknowledging each of Petitioner's comments on those regulations, the ALJ did respond to them. Moreover, the ALJ accurately informed Petitioner that any appeal of his decision, which we take to include his rulings, was appealable only to this Board after his final decision. We have reviewed these rulings and, with one exception in the area of discovery, agree with them all. Petitioner sought discovery of documents relating to her case by making requests to the ALJ for discovery of information regarding the Tennant case and regarding her case from the Health Care Financing Administration, HHS, Region VIII, and the state of Colorado, and by making Freedom of Information Act (FOIA) and "RTP" requests. 12/ She also requested that her case be dismissed because the I.G. had not responded to her FOIA request. In response, the ALJ ruled that he had no authority to order the I.G. to release documents under the FOIA and that he was not dismissing the exclusion on the basis that the I.G. had not complied with Petitioner's FOIA requests. The ALJ also ruled that he would not compel the production of any documents, including those pertaining to the Tennant case, because Petitioner had not demonstrated their relevancy or materiality. 4/1/92 ruling at 4. As we have discussed in prior sections of this decision, the specific allegations about what Petitioner would hope to find in the requested files concerning agency findings on the general quality of care at Aspen, are indeed immaterial due to Petitioner's conviction of a specific offense of patient neglect. We therefore agree with the ALJ that Petitioner did not show the relevance and materiality of the documents she sought pertaining to herself. However, given the ALJ's characterization of the Tennant case as a "companion case," we believe that he should have, at minimum, supplied Petitioner with a copy of the record in the Tennant case so that she could attempt to distinguish her case. After all, such records are ordinarily available to the public. On the other hand, given that there is substantial evidence in the record for Petitioner's case, including her individual conviction and the factual basis for her plea, to support the ALJ's conclusion that the exclusion was proper, this procedural error was harmless. 4. FACTUAL DISPUTES Petitioner alleged that certain factual statements made in the ALJ Decision were not accurate. We discuss each point below. Petitioner objected to FFCL 1, which states: Petitioner, a licensed nursing home administrator and a registered nurse, was, at all times relevant to this case, the Nursing Home Administrator at Aspen Care Center West (Aspen), a skilled nursing home. Petitioner argued that the reference to the fact that she was a registered nurse should be deleted because it was not germane. We conclude that the ALJ did not err in including the reference to Petitioner's status as a registered nurse. Petitioner did not deny that she was a registered nurse at the time the incident in question occurred. Thus, the FFCL is factually correct. Although the ALJ did not explain the relevance of her status as a registered nurse, Petitioner is not prejudiced by the inclusion of this apparently extraneous fact. Petitioner also took exception to FFCL 2, which states: As the principal executive officer and administrator at Aspen, Petitioner's responsibilities included, but were not limited to, maintaining liaison between the various functional areas within the facility, personnel and financial management, and providing a suitable framework for the administration of patient care. Petitioner was also responsible for the organization of the facility to carry out its responsibilities and the development of appropriate policies for patient care governing the nursing, medical, and other related services. Petitioner argued that the I.G. had not proved that she was the principal executive officer of the nursing home. We conclude that substantial evidence supports the ALJ's finding that Petitioner was the principal executive officer. The record includes an 11/9/90 letter from Petitioner's then attorney which describes Petitioner as the "corporate representative in charge" of the nursing home. Request for a hearing, att. 1 at 1. In addition, the narrative description of Count Four of the indictment states that Petitioner was the "principal executive officer." I.G. Ex. 3 at 10. Petitioner also took issue with FFCL 13, which states: After L.G.'s transport, Petitioner and Vicky L. Tennant, the Director of Nursing at Aspen, advised the charge nurse that the nurse's note describing the incident did not need to mention the position in which L.G. was found. The charge nurse was responsible for preparing an incident report, which was required by Department regulation and Aspen internal policy. No incident report was ever prepared. Petitioner asserted that, contrary to this FFCL, she did not advise the charge nurse that the note describing the incident did not need to mention the patient's position. Petitioner did not offer any evidence to support her assertion; however, Petitioner alleged that if the ALJ had granted her request for discovery of all documents relating to her case, she would have been able to provide relevant evidence. We conclude that there is substantial evidence in the record to support this FFCL. This FFCL is based on the factual basis adopted by the court in accepting Petitioner's nolo plea (I.G. Ex. 4) which, as noted above, Petitioner stipulated to. Thus, even if Petitioner's request for discovery had been granted, any discovered evidence would have no weight in light of Petitioner's admission. Petitioner additionally objected to FFCL 14, which states: The medical records supervisor, Sharon Wasinger, upon discovering the lack of an incident report, has indicated that she told either Petitioner or Vicky L. Tennant that a report should be prepared. In response, Ms. Wasinger was told that no incident report was necessary, because "the incident was not unusual." Records Consultant Nancy Weber was told by Ms. Wasinger that she advised Vicky L. Tennant of the need to file an incident report. Petitioner argued that there was no proof that Petitioner was told by the medical records supervisor that an incident report should be prepared or that she responded that it was not necessary. We agree with Petitioner that this FFCL is not supported by the record. As support for this FFCL, the ALJ cited Petitioner's Exhibits 3 and 4. However, as the ALJ himself noted (at footnotes 2 and 5 to the ALJ Decision), Petitioner did not submit any exhibits for the record in this case. Moreover, the ALJ stated elsewhere in his decision that one fact that distinguished this case from Tennant was that "Records Consultant Nancy Weber was told, by Medical Records Supervisor Sharon Wasinger, that Wasinger had advised Ms. Tennant, but not Petitioner, of the need to file an incident report . . . ." Wasinger's statement that she advised Tennant, but not Petitioner, of the need to file an incident report, is clearly inconsistent with the conclusion that Wasinger told "either Petitioner or Vicky L. Tennant that a report should be prepared." Accordingly, since this FFCL is clearly unsupported, we are striking it from the decision. CONCLUSION After a thorough review of all Petitioner's contentions and the administrative record in this proceeding, we affirm and adopt each of the ALJ's FFCLs with the exception of FFCL 14, which we strike as unsupported and unnecessary to the decision. Accordingly, we affirm the Petitioner's five-year exclusion from the Medicare and Medicaid programs. ___________________________ Judith A. Ballard ___________________________ Donald F. Garrett ___________________________ M. Terry Johnson Presiding Board Member 1. "State health care program" is defined in section 1128(h) of the Act and includes the Medicaid program under Title XIX of the Act. Unless the context indicates otherwise, we use the term "Medicaid" here to refer to all programs listed in section 1128(h). 2. There is no mention of the term "nunc pro tunc" in the court documents introduced by the I.G. in this case; this characterization of the dismissal was apparently introduced by the ALJ in his FFCL 17. If the dismissal was indeed nunc pro tunc then its effective date would be March 1990 rather than March 1991. As we discuss in the text, however, the critical date here is the date of the conviction, so that this misdescription of the dismissal is harmless error. 3. Petitioner also maintained that the Department of Health and Human Services (HHS) should be barred from bringing this exclusion action because the State Board of Examiners of Nursing Home Administrators, which Petitioner called "one of HHS' agents," had stated after reprimanding her that the reprimand fully resolved the complaint. See I.G. Ex. 12. While the nursing home (Aspen) may have been required by Colorado's Medicaid plan to employ a licensed nursing home administrator as a condition of participation in the program, that requirement does not make the state licensing board an HHS agent. 4. Petitioner claimed that the Act is unclear on this point and that the I.G.'s citation to three precedents calls the clarity of this definition into question. She also speculated that there must be contrary precedent. We know of none and, contrary to what Petitioner claimed, the mere fact that the I.G. cited case law does not render the Act's language unclear or suggest that contrary precedent exists. 5. Throughout this decision we do not reproduce the ALJ's citations when we quote FFCLs. 6. Petitioner also objected to FFCL 7, which states: Petitioner's plea was entered pursuant to a proposed stipulation for a deferred judgment and sentence for a period of one year. The only conditions imposed upon Petitioner were that she not violate the law and that she pay court costs if so ordered. If she complied with the terms of the deferred judgment, the action against her would be dismissed. Petitioner argued that this FFCL is incomplete because it does not state that the case against her was ultimately dismissed. However, since FFCL 17 specifically includes this fact, we reject this exception. 7. Petitioner also argued that the I.G. failed to show that violation of this regulation constituted a crime. However, this count is identified in the indictment as a misdemeanor (see I.G. Ex. 3), and the stipulation for deferred judgment and sentence refers to this as a criminal action (I.G. Ex. 7). Thus, we reject this argument. 8. We note that Petitioner's estimate for the cost to her of this exclusion is apparently based on an estimate of her expected salary and benefits as a nursing home administrator for five years. App. br., att. 1 at 2. Petitioner's exclusion, however, only bars her receiving compensation from federally funded programs; it does not bar her employment as a nursing home administrator or registered nurse for employers in other circumstances. 9. For a more thorough discussion of these cases, see Schram at 15-18. 10. In contrast, the provisions governing permissive exclusions were substantively changed by the new regulations. For example, the new regulations established for the first time a "benchmark" length of three years for permissive exclusions. See 57 Fed. Reg. 3298, 3304 (January 29, 1992). 11. For example, the ALJ explained in his 4/1/92 ruling, "In my position as the ALJ presiding over this case, it is not my role to provide legal counsel or advise either party." 12. Petitioner did not explain what an "RTP" request