Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD
Civil Remedies Division
Jamie Lynn Eaves-Lewis, R.N.,
(O.I. File No. H-17-41640-9),
The Inspector General.
Docket No. C-18-120
Decision No. CR5070
Petitioner, Jamie Lynn Eaves-Lewis, is a registered nurse (R.N.) in the State of California. She pled no contest to a charge of battery in violation of California Penal Code section 242. Based on this disposition of her criminal case, the Inspector General (I.G.) excluded Petitioner for five years from participating in Medicare, Medicaid, and all federal health care programs, as authorized by section 1128(a)(2) of the Social Security Act (Act). Petitioner appeals the exclusion. For the reasons discussed below, I find that the I.G. properly excluded Petitioner Eaves-Lewis and that the statute mandates a minimum five-year exclusion.
In a letter dated August 31, 2017, the I.G. notified Petitioner that she was excluded from participating in Medicare, Medicaid, and all federal health care programs for a period of five years because she had been convicted of a criminal offense related to the neglect or abuse of patients in connection with the delivery of a health care item or service. The letter explained that section 1128(a)(2) of the Act authorizes the exclusion. IG Ex. 1. Petitioner timely requested a hearing before an administrative law judge.
Each party submitted a written argument (I.G. Br.; P. Br.) and the IG submitted a reply (I.G. Reply). The IG submitted seven proposed exhibits (I.G. Exs. 1-7). Petitioner did not offer any exhibits, nor did Petitioner object to the exhibits offered by the I.G. Therefore, in the absence of objections, I admit into evidence I.G. Exs. 1-7.
The parties agree that an in-person hearing is not necessary. I.G. Br. at 8; P. Br. at 12. I therefore decide this case based on the parties’ written submissions.
Petitioner must be excluded from program participation for a minimum of five years because she was convicted of a criminal offense related to the neglect or abuse of a patient in connection with the delivery of a health care item or service within the meaning of section 1128(a)(2) of the Act.1
Section 1128(a)(2) of the Act requires the Secretary of Health and Human Services to exclude an individual who has been convicted, under federal or state law, of “a criminal offense related to the neglect or abuse of a patient, in connection with the delivery of a health care item or service. . . .” See 42 C.F.R. § 1001.101(b). The “delivery of a health care item or service” includes providing any item or service to an individual to meet his or her physical, mental, or emotional needs or well-being, whether or not reimbursed by Medicare, Medicaid, or any federal health care program. Id.
Petitioner is an R.N. who worked at a skilled nursing facility in Lakeport, California. I.G. Ex. 3 at 1. On November 21, 2014, she was charged with one felony count of elder or dependent adult abuse (California Penal Code § 368). I.G. Ex. 2 at 2-3. A Special Agent of the California Department of Justice, Bureau of Medi-Cal Fraud and Elder Abuse executed a “Declaration in Support of Arrest Warrant” in which she detailed her investigation of an incident at the facility where Petitioner worked that led to the death of a resident. I.G. Ex. 3. The special agent averred under penalty of perjury that, on August 8, 2011, Petitioner gave A.S., a 91-year-old patient of the facility, methadone that was intended for another patient. Id. at 1. The special agent further alleged that Petitioner administered the methadone to A.S. without following facility policies or taking other steps to ensure that the medication was administered to the correct patient. Id. The special agent’s declaration acknowledged that, upon discovering the error, Petitioner notified the facility’s nurse practitioner of the incident and followed the nurse practitioner’s instructions. Id. The declaration further recited that, although A.S.’s vital signs appeared stable during the remainder of Petitioner’s shift, A.S.’s condition later deteriorated, and she ultimately died of methadone intoxication. Id.
On March 22, 2017, the Superior Court of California, County of Lake (Superior Court) amended the felony complaint against Petitioner to “add count 3, Penal Code section 242.” I.G. Ex. 6 at 2. Petitioner pled no contest to count 3 of the amended complaint. Id. The Superior Court accepted Petitioner’s plea, entered judgment finding her guilty, and sentenced her to two years’ probation and to pay an assessment of $630. I.G. Ex. 6 at 2, 10.
Petitioner concedes that she was convicted of a criminal offense. P. Br. at 2. However, she denies that her conviction was related to the neglect or abuse of a patient. P. Br. at 2‑12. To be more precise, Petitioner objects that the I.G. has based the exclusion on the crime with which she was charged, rather than the crime for which she was convicted. P. Br. at 2-4.
Petitioner misunderstands the basis for exclusion pursuant to section 1128(a)(2) of the Act. The statute mandates exclusion for individuals convicted of offenses related to neglect or abuse of patients; it does not require that the title of the offense for which the individual is convicted include the words “neglect” or “abuse.”2 For example, an appellate panel of the Departmental Appeals Board has observed:
[N]othing in section 1128(a)(2) . . . requires that the necessary elements of the criminal offense must mirror the elements of the exclusion authority, nor that all statutory elements required for an exclusion must be contained in the findings or record of the state criminal court. We see no reason to assume that Congress intended to narrowly proscribe the I.G.’s exclusion authority by dependence on the vagaries of state criminal law definitions or record development. On the contrary, the statutory language says nothing about what evidence of the nature of and circumstances surrounding the offense itself may be considered to determine if the individual’s criminal conduct included the elements necessary for a mandatory exclusion.
Narendra M. Patel, M.D., DAB No. 1736 at 6 (2000), aff’d sub nom Patel v. Thompson, No. 00-00277-CV-HLM-4 (N.D. Ga. 2002), aff’d, 319 F.3d 1317 (11th Cir. 2003), cert. denied, 539 U.S. 959 (2003).
Accordingly, the I.G. – as well as the administrative law judge – may appropriately look to the facts alleged in the special agent’s declaration supporting the original charge of elder or dependent adult abuse to determine whether Petitioner’s conviction for simple battery was “related to the neglect or abuse of a patient.” 42 C.F.R. § 1001.101(b). The record of proceedings before the Superior Court shows that, in essence, the charge of elder or dependent adult abuse in violation of California Penal Code § 368 was reduced to a charge of simple battery and Petitioner pled no contest to the reduced charge. I.G. Ex. 6 at 2. There is no suggestion that there was some factual basis for Petitioner’s plea other than her treatment of A.S. on August 8, 2011. Thus, I infer that the battery to which Petitioner pled no contest consisted of the “willful and unlawful use of force or violence upon the person of” A.S. See I.G. Ex. 7 (citing California Penal Code § 242). There is no dispute that A.S. was Petitioner’s patient at the time. It is apparent then, that Petitioner’s conviction for inflicting “unlawful . . . force or violence” on A.S. is a conviction related to abuse of a patient. Moreover, the offense occurred in connection with the delivery of a health care item or service because the battery occurred when Petitioner incorrectly administered medication to the patient.
This conclusion is reinforced by the factual basis recited in the accusation before the State of California Board of Registered Nursing (State Board). See I.G. Ex. 4 at 13-16. Although Petitioner objects to the I.G.’s reliance on the State Board proceedings (P. Br. at 4-5), the documents are relevant because they further corroborate the allegations of the special agent in her declaration supporting the charges against Petitioner. See Bruce Lindberg, D.C., DAB No. 1386 at 4 (1993) (extrinsic evidence regarding the nature of conviction should be evaluated based on its reliability). As the I.G. points out, before the State Board, Petitioner explicitly agreed that there was a basis to take disciplinary action against her nursing license based on the identical facts recited in the special agent’s declaration. Compare I.G. Ex. 4 at 15‑16 with I.G. Ex. 3 at 1; see also I.G. Ex. 4 at 3 (“[Petitioner] admits that there is a factual basis for the imposition of discipline, based on the charges and allegations contained in [the] Accusation”). The declaration of the special agent, which she signed under penalty of perjury, and the accusation before the State Board, which Petitioner agreed alleged a factual basis for discipline, are sufficiently reliable to establish that Petitioner’s conviction for simple battery is related to neglect or abuse of a patient in connection with the delivery of a health care item or service, within the meaning of section 1128(a)(2) of the Act.
Contrary to Petitioner’s argument (P. Br. at 7-12), the conduct to which Petitioner’s conviction relates, i.e., her administration of methadone to the wrong patient, ultimately causing the patient’s death, is related to abuse or neglect of a patient under either the regulatory definition of abuse or the ordinary or common meaning of abuse. The regulatory definition of abuse at 42 C.F.R. § 488.301, provides:
Abuse is the willful infliction of injury, unreasonable confinement, intimidation, or punishment with resulting physical harm, pain or mental
anguish. . . . Willful, as used in this definition of abuse, means the individual must have acted deliberately, not that the individual must have intended to inflict injury or harm.
42 C.F.R. § 488.301. Petitioner’s actions inflicted injury with resulting physical harm to A.S. because A.S. died from methadone intoxication after Petitioner administered the wrong medication. Even though Petitioner did not intend to cause harm, she deliberately administered the medication to A.S. See I.G. Ex. 3 at 1; I.G. Ex. 4 at 15. Accordingly, the conviction is related to abuse as that term is defined in 42 C.F.R. § 488.301. Contrary to Petitioner’s contention, the regulation does not include any requirement that conduct related to abuse be violent. Cf. P. Br. at 9-11.
Similarly, Petitioner’s conduct falls within the common or ordinary meaning of abuse. As one administrative law judge explained:
“Neglect” is defined in Webster's Third New International Dictionary, 1976 Edition 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 . . . .” “Abuse” is defined as “4: to use or treat so as to injure, hurt, or damage; MALTREAT . . . .” I conclude from these common definitions that Congress intended the statutory term “neglect” to include failure by a party to satisfy a duty of care to another person. “Abuse” is intended to include those situations where a party willfully mistreats another person.
Thomas M. Cook, DAB CR51 at 4-5 (1989). For the same reasons just described, Petitioner’s conduct constituted abuse because it involved willful – in the sense of deliberate – mistreatment of a patient. Petitioner’s conduct could also be related to neglect under the ordinary or common meaning of the term as described in the Cook decision. That is, Petitioner failed in her duty of care to A.S. by administering the wrong medication to her.3
Petitioner’s conviction thus falls squarely within the ambit of section 1128(a)(2). While delivering health care services to a vulnerable patient, Petitioner incorrectly administered medication, which ultimately resulted in the patient’s death. She is therefore subject to exclusion. An exclusion brought under section 1128(a)(2) must be for a minimum period of five years. Act § 1128(c)(3)(B); 42 C.F.R. §§ 1001.102(a), 1001.2007(a)(2).
For these reasons, I conclude that the I.G. properly excluded Petitioner from participation in Medicare, Medicaid and all federal health care programs, and I sustain the five-year exclusion.
Leslie A. Weyn Administrative Law Judge
1. I make this one finding of fact/conclusion of law.
- back to note 1 2. Further, Petitioner’s misunderstanding of section 1128(a)(2) of the Act does not establish that her exclusion violates her right to due process of law. See, e.g., P. Br. at 5, 7. The fact that Petitioner – or her attorney – mistakenly believed that the disposition of her criminal case would not subject her to exclusion does not mean that she lacked notice of the consequences of her plea. The statute, regulations, and numerous administrative and court decisions interpreting the statute and regulations are a matter of public record.
- back to note 2 3. Petitioner argues that, had the I.G. analyzed her conviction under the regulatory definition of neglect, he could not have concluded that the conviction related to neglect of a patient. P. Br. at 7. I agree that the regulatory definition of neglect does not appear to apply to Petitioner’s conduct. Section 488.301 defines neglect as “the failure of the facility, its employees or service providers to provide goods and services to a resident that are necessary to avoid physical harm, pain, mental anguish, or emotional distress.” Petitioner’s conduct in administering the incorrect medication to a patient does not involve her failure to provide goods or services to her patient. However, the fact that Petitioner’s conduct did not amount to neglect as defined in 42 C.F.R. § 488.301 does not detract from the conclusion that Petitioner’s conviction otherwise meets the criteria for exclusion pursuant to section 1128(a)(2), as discussed above.
- back to note 3