Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD
Appellate Division
In the Case of:
Lee G. Balos,
Petitioner,
- v. -
The Inspector General.
DATE: October 19, 1995
Docket No. C-95-025
Decision No. 1541
FINAL DECISION ON REVIEW OF
ADMINISTRATIVE LAW JUDGE DECISION
Lee G. Balos (Petitioner) appealed the June 2, 1995
decision of Administrative Law Judge (ALJ) Jill S.
Clifton upholding the exclusion of Petitioner from
participation in the Medicare, Medicaid, Maternal and
Child Health Services Block Grant and Block Grants to
State for Social Services programs under section
1128(a)(2) of the Social Security Act (Act). See Lee G.
Balos, DAB CR378 (1995) (ALJ Decision). The term of the
exclusion was for the minimum mandatory five-year period
set by section 1128(c)(3)(B) of the Act. The Inspector
General (I.G.) had notified Petitioner that the exclusion
was the result of Petitioner's conviction of a criminal
offense relating to neglect or abuse of patients in
connection with the delivery of a health care item or
service. The parties before the ALJ agreed to proceed on
written submissions. The ALJ concluded that no material
factual issues were in dispute and affirmed the I.G.'s
determination to exclude Petitioner for five years.
Petitioner excepted to six of the numbered findings of
fact and conclusions of law (FFCLs) in the ALJ Decision.
Petitioner argued that his convictions for endangering
the welfare of an incompetent person by performing the
duties of a certified registered nurse anesthetist (CRNA)
while impaired and for reckless conduct by tampering with
drug ampules intended for patients did not relate to
patient neglect as required under section 1128(a)(2) of
the Act, 1/ and that addicted providers who endangered
patient safety and were convicted of crimes had received
permissive exclusions in other administrative cases.
Petitioner also argued that, since similarly situated
providers were treated differently, his constitutional
guarantee to equal protection was violated by his
mandatory exclusion.
Based on the record before the ALJ, the ALJ Decision, and
the parties' submissions on appeal, we conclude, for the
reasons explained below, that Petitioner's exceptions and
arguments are without merit. Therefore, we uphold the
five-year mandatory exclusion of Petitioner, and we
affirm and adopt all the FFCLs in the ALJ Decision.
Background
Section 1128(a)(2) of the Act requires 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.
Petitioner's notice of appeal did not except to FFCLs
1-17, and 24. We therefore affirm and adopt those FFCLs
without further discussion and rely on them for the
following summary of the factual scenario.
In 1991, Petitioner was a CRNA in a Maine hospital, when
he was observed acting "dopey or high" in the operating
room and found by a supervisor to have "heavy eyelids and
slurred speech." FFCLs 1-3. He tested positive for
drugs in a urine test, whereupon he admitted his drug
dependency. FFCLs 4-6. He then warned the hospital that
he had substituted saline solution in ampules of drugs
used in the anesthesia department. FFCL 7. He gave this
warning to ensure the ampules were not given to a
patient. FFCL 8. In April 1992, he pled guilty to a
three-count information and was convicted of (1)
endangering the welfare of an incompetent person by
performing CRNA functions while impaired, (2) stealing
drugs from the hospital, and (3) reckless conduct in that
he "created a substantial risk of serious bodily injury
to patients ... by tampering with" the ampules. FFCLs 9-
14.
Arguments on Appeal
The FFCLs to which Petitioner did except were the
following: 2/
18. Petitioner's conviction for the offense of
endangering the welfare of an incompetent person
constitutes a conviction of a criminal offense
relating to neglect of patients in connection with
the delivery of a health care item or service,
within the meaning of section 1128(a)(2) of the Act.
19. Petitioner's conviction for the offense of
reckless conduct constitutes a conviction of a
criminal offense relating to neglect of patients in
connection with the delivery of a health care item
or service, within the meaning of section 1128(a)(2)
of the Act.
20. Pursuant to section 1128(a) of the Act, the
I.G. is required to exclude Petitioner form
participating in Medicare and Medicaid.
21. The minimum mandatory period of exclusion
pursuant to section 1128(a)(2) is five years.
22. The I.G. properly excluded Petitioner from
participation in Medicare and Medicaid for a period
of five years pursuant to sections 1128(a)(2) and
1128(c)(3)(B) of the Act.
23. The determination of the I.G. to impose and
direct a five-year exclusion in this case does not
violate Petitioner's right to equal protection under
the United States Constitution.
In support of his exceptions, Petitioner argued that he
did not in fact commit patient neglect in that he "did
not give `little or no attention' to any patient" or omit
a required action, even though he was performing his
duties while impaired. Petitioner Br. at 3-4. In so
arguing, Petitioner relied on a definition of þneglectþ
from the Webster's Third New International Dictionary
(1976 ed.), quoted from the decision in Rosette Elliott,
DAB CR84, at 5 (1990) as: "1: to give little or no
attention or respect to; . . . 2: to carelessly omit
doing (something that should be done) either altogether
or almost altogether; leave undone or unattended . . . ."
Hence, he contended that, although his offenses were
styled as endangering a patient and reckless conduct, no
actual neglect was shown absent evidence that he failed
to administer a required medication or that a patient was
harmed or unattended. Petitionerþs Br. at 3-4.
Further, Petitioner argued that not a single
administrative case supports the ALJ's conclusion "that
an impaired health care provider's conviction relating to
his endangering of his patients' safety due to his
addiction--without more--relates to patient neglect."
Petitioner Br. at 2. Petitioner cited seven cases in
which ALJs allegedly imposed only permissive exclusions
in situations involving drug-addicted providers:
Kenneth Behymer, DAB CR73 (1990); Thomas J. DePietro, DAB
CR117 (1991); James E. Keil, DAB CR75 (1990); Bertha K.
Krickenbarger, DAB CR250 (1993); Bernard Lerner, DAB CR60
(1989); Michael B. Reiner, DAB CR90 (1990); and Robert A.
Woolhandler, DAB CR127 (1991).
Finally, Petitioner raised constitutional arguments based
on equal protection in that other similarly situated
providers did not receive mandatory exclusions.
Analysis
1. Petitioner's argument that his convictions do not
relate to patient neglect is without merit.
In the absence of a statutory definition of neglect, the
ALJ turned to its common and ordinary meaning, which she
found to include "failure . . . to satisfy a duty of care
to another person." ALJ Decision at 7; see also Summit
Health Limited, dab Marina Convalescent Hospital, DAB
1173, at 8 (1990) and Janet Wallace, L.P.N., DAB 1326, at
10 (1992)(a common meaning is "to fail to care for or
attend to sufficiently"). She noted that the Maine
statute under which Petitioner was convicted in the count
of endangering the welfare of an incompetent person
defines "endanger" to include "a failure to act only when
the defendant had a legal duty to protect the health,
safety or mental welfare of the incompetent person." Id.
The ALJ thus found that a statutory element of the
offense necessarily required that the state court have
determined that Petitioner breached a duty of care. No
further inquiry was needed to establish that the offense
related to neglect (and Petitioner did not contest the
findings that the offense involved a patient and occurred
"in connection with the delivery of a health care item or
service"). 3/
In addition, the ALJ found that Petitioner's conviction
for reckless conduct related to neglect of patients. The
ALJ found that the criminal information on its face
establishes that the substitution of saline for the drugs
intended for alleviating the pain of surgical patients
recklessly "create[d] a substantial risk of serious
bodily injury to patients." ALJ Decision at 8.
Petitioner did not dispute that the offense of which he
was convicted created such a risk, but argued that he did
not violate any duty of care owing to patients or commit
"actual neglect." Petitioner Br. at 3-4.
We agree with the ALJ that recklessly creating such a
risk for patients in the hospital in which he served as a
CRNA was plainly a breach of Petitioner's duty toward
those patients and was related to neglect of them under
any reasonable understanding of the word. Petitioner's
warning the hospital of his actions after he was
confronted with the results of his drug test, while it
may have averted more serious consequences, does not undo
the reality of the risk which he created and permitted to
exist for some period of time, counter to his duty of
care to the hospital patients not to put them at such a
risk.
Petitioner pointed to no persuasive authority to support
the position that some sort of actual harm must result
before neglect can be found. In fact, his own preferred
definition of neglect includes giving little "attention"
and leaving someone or something "unattended," without
any mention of a resulting consequence. Clearly, a
patient under anesthesia is in need of continuous
attention and is neglected when left unattended. A CRNA
who is "dopey" and drowsy because he is on drugs while
administering anesthesia cannot be fully or sufficiently
attending to the patient. Whether or not the potential
disasters in that situation were realized, the patient
was neglected. Furthermore, Petitioner's definition
includes leaving something undone that ought to be done.
Safely handling medication to be used in the anesthesia
of surgical patients is an apparent duty of a CRNA which
was left undone because of Petitioner's tampering.
Hence, even under Petitioner's definition, we would find
that his convictions relate to neglect of patients.
Furthermore, the meaning of neglect must be understood in
a manner "consistent with the purposes and intent" of the
exclusion law. Summit Health Limited, dab Marina
Convalescent Hospital, DAB 1173, at 8 (1990). Section
1128(a)(2) is designed to protect the integrity of the
federally-funded programs and the interests of the
beneficiaries. It would be counter to these purposes to
read into the law a requirement that actual harm have
befallen patients as a result of Petitioner's inattention
to their needs before a conviction could be considered to
be "related to" neglect of a patient.
We conclude that the ALJ did not err in finding that
Petitioner was convicted of an offense relating to the
neglect of patients, as the term is used in section
1128(a)(2) of the Act.
2. Petitioner's argument that he may not be subject to a
mandatory exclusion because other impaired providers in
similar situations have been excluded under the
permissive exclusions provisions is also without merit.
We have reviewed the administrative cases to which
Petitioner alluded. We note that those cases were all
resolved by ALJs without appeals to this Board. We have
no basis to second guess the judgment of the I.G.,
affirmed by ALJs, that permissive exclusions were
appropriate in those cases, from which neither party
appealed. 4/ Petitioner did not point to any appellate
decision that suggested that impaired providers whose
crimes endanger patient safety are subject to only
permissive, rather than mandatory, exclusion. Nor have
we found any appellate case so holding. The issue before
us (as before the ALJ) is not whether the I.G. erred in
determining that mandatory exclusions were not applicable
in some other cases, but whether Petitioner's convictions
required the I.G. to impose a mandatory exclusion in this
case. See ALJ Decision at 10-11. Once the I.G.
determined that Petitioner's convictions were governed by
section 1128(a)(2), the I.G. had no discretion to impose
anything but a mandatory exclusion. Cf. Niranjana B.
Parikh, M.D., et al., DAB 1334, at 7-8 (1992); Jack W.
Greene v. Sullivan, 731 F.Supp. 835 (E.D. Tenn. 1990).
Furthermore, as the ALJ pointed out, none of the
providers in the cases cited by Petitioner was convicted
of the same offenses on which Petitioner's exclusion was
based. ALJ Decision at 10. The providers in those cases
were convicted of offenses such as theft or unlawful
distribution of controlled substances which do not
include as an element of the offense a breach of a duty
of care to a patient or creating a substantial risk to a
patient. Those cases did not involve convictions
impinging directly on care of a patient as did
Petitioner's convictions for endangering the welfare of
an incompetent person and reckless conduct. In
Petitioner's case, the I.G. expressly stated that a
mandatory exclusion would not have been applied had
Petitioner been convicted only of the third count of the
indictment against him, i.e., stealing drugs, and the ALJ
did not rely on that conviction in upholding the
exclusion. ALJ Decision at 10, n.3; I.G. Br. at 10.
Thus, it appears that conviction of an impaired provider
for misappropriating drugs, without more, has
consistently been treated by the I.G. and the ALJs as not
relating to patient neglect. By contrast, no authority
cited by Petitioner supports the position that an
impaired provider who is convicted of an offense which
does relate to patient neglect is not subject to a
mandatory exclusion.
Petitioner acknowledged that the offenses involved in the
cited cases were distinct from his own, but argued that
"the nature of the criminal charge . . . is irrelevant,
since the IG is not bound by the elements of the offense
in determining whether or not a conviction relates to
patient abuse or neglect." Petitioner Br. at 3. 5/ It
is true that, in determining whether a particular
conviction related to patient neglect or abuse, the I.G.
may look beyond the simple elements of the statute
involved to the circumstances of the offense as they
appear in the criminal record. However, this does not
imply that the elements of an offense may not suffice to
establish neglect. In Petitioner's case, the elements of
the statutes under which he was convicted, together with
the information, clearly established neglect and tied it
to patients. By contrast, an offense of theft or illegal
distribution of drugs does not necessarily involve any
potential effect on or hazard to a patient. See ALJ
Decision at 10. Furthermore, the facts and circumstances
which the I.G. may consider in determining whether the
conviction is one governed by section 1128(a)(2) are
those of the offense for which the provider was
convicted. Even if a provider abused drugs on the job,
the I.G. could not impose a mandatory exclusion under
section 1128(a)(2) unless the provider were convicted of
an offense relating to patient neglect or abuse resulting
from that activity.
We conclude that, since Petitioner's convictions do
relate to patient neglect under section 1128(a)(2), it is
irrelevant whether the cases of other providers should
have been brought under that section. Further, we
conclude that the offenses in those cases were not the
same as those for which Petitioner was convicted, so that
the I.G. may properly have determined that they were not
subject to mandatory exclusions. Therefore, we conclude
that the ALJ did not err in rejecting Petitioner's
contention that his exclusion was invalid because
similarly-situated providers received permissive
exclusions.
3. The ALJ was correct in rejecting Petitioner's claim
that his exclusion violated his right to equal
protection.
We previously upheld an ALJ's determination that he did
not have authority to resolve constitutional issues of
due process based on the narrow scope of review under the
regulations. Shanti Jain, M.D., DAB 1398, at 7 (1993).
The reasoning applies here to Petitioner's assertion that
the ALJ should invalidate his exclusion on equal
protection grounds.
In any case, Petitioner failed to establish a factual
basis for his constitutional claims, since, as we
explained above, the providers who allegedly received
disparate treatment were not similarly situated in that
their convictions were not the same as Petitioner's.
Furthermore, since the law mandates that the I.G. impose
a minimum five-year exclusion whenever the I.G.
determines that a conviction relates to patient neglect,
the I.G. had no discretion to apply the permissive
provisions, regardless of what transpired in any other
case.
We therefore conclude that the ALJ did not err in
rejecting Petitioner's constitutional claims.
Conclusion
For the above reasons, we uphold Petitioner's five-year
exclusion under section 1128(a)(2) of the Act.
___________________________
Cecilia Sparks Ford
___________________________
Donald F. Garrett
___________________________
Judith A. Ballard
Presiding Board Member
1. The ALJ did not consider whether the offense of
stealing drugs was related to neglect or abuse, because
the I.G. did not argue it. Further, the ALJ did not
consider whether either of the remaining two convictions
could constitute abuse, as opposed to neglect, for the
same reason. Lee G. Balos, DAB CR378, at 6, n.2. (1995)
2. Citations in the FFCLs are omitted.
3.
Petitioner challenged the ALJ's citation of Olian Small,
DAB CR136 (1991), in which a nurse's aide was convicted
under the identical statute and excluded under section
1128(a)(2). Petitioner argued that Small was inapposite
because the petitioner there actually failed to
administer a required medication to a patient. The
factual differences between the cases were recognized by
the ALJ but are beside the point for which she cited
Small. See ALJ Decision at 7-8. The point is that the
nature of the statutory definition of endangering under
the State statute involved in both cases so squarely
tracks the common meaning of neglect that it is difficult
to see how a set of circumstances could justify
conviction of endangering under this definition without
also constituting neglect as commonly understood.
4. There is no reason to believe that any of the
parties in the cases cited by Petitioner even raised the
question of whether the I.G. should have proceeded by
mandatory exclusion. As the ALJ noted, even if the I.G.
misapplied the law in any of those cases, that would not
invalidate the proper application of a mandatory
exclusion in this case. ALJ Decision at 10.
5.
Nevertheless, Petitioner repeatedly referred to these
cases as if they all involved "drug addicted doctors who
endangered patient safety as a result of their addictions
and who were convicted of crimes relating to such
wrongdoing." Petitioner's Br. at 2. The commonality
that the providers in these cases, like Petitioner, were
drug abusers does not make the nature of their offenses
identical. In none of the cases were the providers
convicted of crimes relating to endangering patient
safety as a result of the provider's drug abuse.