Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD
Appellate Division
In the Case of:
David A. Barrett, Petitioner,
- v. -
The Inspector General.
DATE: February 2, 1994
Docket No. C-93-113
Decision No. 1461
FINAL DECISION ON REVIEW OF ADMINISTRATIVE LAW JUDGE
DECISION
David A. Barrett (Petitioner) appealed an October 14, 1993 decision by
Administrative Law Judge (ALJ) Mimi Hwang Leahy. David A. Barrett, DAB
CR288 (1993) (ALJ Decision). There, the ALJ granted the Inspector
General's (I.G.'s) Motion for Summary Disposition and affirmed the
I.G.'s determination to exclude Petitioner from participation in
Medicare and State health care programs for five years.
Petitioner's exclusion was based on sections 1128(a)(2) and
1128(c)(3)(B) of the Social Security Act (Act). Section 1128(a)(2)
mandates exclusion from Medicare and State health care programs for any
individual or entity "convicted . . . 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) establishes that "[i]n
the
case of an exclusion under subsection (a), the minimum period of
exclusion shall be not less than five years . . . ."
Petitioner had entered a guilty plea in an Iowa state court to one
charge of failure to report a suspected case of dependent adult abuse.
The I.G. determined that Petitioner's plea constituted a conviction for
purposes of section 1128(a)(2) of the Act and proposed that Petitioner
be excluded from Medicare and State health care programs. 1/
Petitioner raised two general exceptions to the ALJ Decision. As
discussed more fully below, we affirm the ALJ Decision in part. However,
we also find that there was no support in the record for certain
inferences drawn by the ALJ which were essential to her decision to
grant summary disposition for the I.G. Consequently, we remand to the
ALJ for further consideration consistent with our analysis.
Background
The ALJ Decision excluding Petitioner was based on the following
findings of fact and conclusions of law (FFCLs):
A. Findings of Fact and Conclusions of Law by Agreement of the Parties
1. Petitioner is the Director of Residential Services for Handicap
Village, a residential and vocational center which provides services for
mentally and physically disabled individuals.
2. In February of 1992, Petitioner was informed by a female staff
member that a Handicap Village resident had complained of being sexually
abused by a certain male staff member.
3. Petitioner completed an investigation of the resident's allegation
and ultimately determined that the resident's charge was
unsubstantiated. Although Petitioner was a mandatory reporter under
Iowa Code 235B, Petitioner also determined that the resident's
allegation should not be reported to the Iowa Department of Human
Services for reasons which included the following:
a) there were no witnesses to the alleged sexual abuse other than
the resident;
b) the accused male staff member neither admitted nor denied the
allegations;
c) the accused male staff member resigned, therefore insulating the
resident from any further abuse; and
d) the resident's family did not want the allegation reported since
the resident had a history of sexual deviancy.
4. After another individual notified the Iowa Department of Human
Services of the allegation of sexual abuse at Handicap Village, Roxanne
Neary, an investigator from the Iowa Department of Inspections and
Appeals, investigated the alleged sexual abuse. During the course of
her investigation, Petitioner discussed what he knew about the incident.
At the end of her investigation, Ms. Neary informed Petitioner that he
might be facing possible criminal charge for failure to report suspicion
of adult abuse. Ms. Neary also informed Petitioner that she was
forwarding her investigative file to the Cerro Gordo County Attorney.
5. On March 5, 1993, the Cerro Gordo County Attorney charged Petitioner
with failure to report a suspected case of adult abuse, a violation of
Iowa Code 235B.1(1)(a)(4), 235B.1(7)(a), and 235B.1(11).
6. Petitioner then contacted Ms. Neary, who informed him that the
charge was a mere formality and that he would probably only have to pay
a $50 fine. When asked if the charge would affect his employment, Ms.
Neary stated that his continued employment at Handicap Village was a
matter between him and Handicap Village.
7. On March 18, 1993, Petitioner pled guilty to failure to report a
suspected case of adult abuse, a violation of Iowa Code
235B.1(1)(a)(4), 235B.1(7)(a), and 235B.1(11). Petitioner was not
represented by counsel. The magistrate who took Petitioner's plea fined
Petitioner $50 and assessed Petitioner a $15 surcharge and $25 in costs.
Petitioner paid his fine that day.
8. By letter dated August 13, 1993, the I.G. notified Petitioner that,
effective 20 days from the date of the letter, the Secretary of Health
and Human Services was excluding him from participation in the Medicare
program and from any State health care program which receives federal
funding, pursuant to section 1128(a)(2) of the Act. This action was
based on Petitioner's conviction in the Iowa District Court for Cerro
Gordo County for his failure to report a suspected case of adult abuse.
Since there were no aggravating circumstances, Petitioner's exclusion
was for the minimum five-year period mandated by section 1128(c)(3) of
the Act.
9. Handicap Village receives approximately 50 percent of its funding
from Medicare and other federal programs. Thus, unless Handicap Village
can pay Petitioner's salary from a source that does not include federal
funds, the effect of the exclusion directed by the I.G. was to prohibit
Petitioner from working at Handicap Village after September 2, 1993
(i.e., 20 days from the date of the I.G.'s notice letter). The
Executive Director of Handicap Village has testified in a different
proceeding that Handicap Village might be able to fund a chaplain or
minister position with strictly private funds. Thus, there remains a
possibility that Petitioner could continue working at Handicap Village,
albeit in a different role.
10. On August 24, 1993, Petitioner filed a post-conviction relief
petition, asserting that his conviction should be set aside. That
matter is still pending in State court.
11. On August 25, 1993, Petitioner filed a timely request for hearing
before a federal administrative law judge to contest the exclusion
imposed and directed by the I.G. The case was assigned to me for
hearing and the issuance of a decision.
12. On August 27, 1993, Petitioner filed an action in federal district
court seeking to enjoin the Secretary of Health and Human Services from
excluding him pending the exhaustion of his administrative remedies. By
order dated September 1, 1993, the court denied Petitioner's Motion for
Temporary Restraining Order and Preliminary Injunction and Request for
Evidentiary Hearing. . . . Barrett v. Shalala, No. C93-3058 (N.D. Iowa
Sept. 1, 1993).
13. Petitioner's conviction is not related to the abuse of patients.
B. Other Findings of Fact and Conclusions of Law
14. Petitioner was "convicted" of a criminal offense within the meaning
of sections 1128(a)(2) and 1128(i) of the Act.
15. Petitioner may not utilize this administrative proceeding to
collaterally attack his criminal conviction.
16. The elements of Petitioner's conviction establish that Petitioner
was "convicted" of a criminal offense relating to a patient, within
the
meaning of section 1128(a)(2) of the Act.
17. The elements of Petitioner's conviction establish that Petitioner
was convicted of a criminal offense which was "in connection with the
delivery of a health care item or service," within the meaning of
section 1128(a)(2) of the Act.
18. The elements of Petitioner's conviction establish that Petitioner
was convicted of a criminal offense relating to "neglect" of patients,
within the meaning of section 1128(a)(2) of the Act.
19. The Secretary of Health and Human Services has delegated to the
I.G. the authority to determine, impose, and direct exclusions pursuant
to section 1128 of the Act. 48 Fed. Reg. 21,662 (1983).
20. The five-year exclusion imposed and directed against Petitioner by
the I.G. is for the minimum period required for exclusions imposed and
directed pursuant to section 1128(a)(2) of the Act. Section
1128(c)(3)(B) of the Act.
21. The exclusion imposed and directed by the I.G. against Petitioner
is in accordance with the mandates of the Act.
22. Neither the I.G. nor the administrative law judge has the authority
to reduce the five-year minimum exclusion mandated by sections
1128(a)(2) and 1128(c)(3)(B) of the Act.
ALJ Decision at 4-7 (citations omitted).
Petitioner's Exceptions
Petitioner did not point to specific FFCLs with which he disagreed.
Rather, he raised two general exceptions. First, Petitioner excepted to
the ALJ's conclusions that the elements of Petitioner's conviction
establish both that he was convicted of a criminal offense relating to a
"patient" and that the criminal offense was "in connection with
the
delivery of a health care item or service." This exception involves
FFCLs 16, 17, and 21.
Second, Petitioner excepted to the ALJ's conclusion that Petitioner's
offense was related to the neglect of patients. This exception involves
FFCL 18. 2/
Analysis
We have 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 on the whole record. The standard of review on disputed issues
of law is whether the ALJ Decision is erroneous. See Thelma Walley, DAB
1367, at 3 (1992).
As explained more fully below, we conclude that the ALJ was not
reasonable in inferring from the elements of the State statute under
which Petitioner was convicted the elements necessary to establish that
a section 1128(a)(2) exclusion was proper. The ALJ Decision granting
summary disposition for the I.G. was based on inferences from the
elements of Petitioner's criminal conviction which were not necessary
inferences based on the language of the Iowa statutory provisions. The
record before the ALJ did not establish that Petitioner's mandatory
reporting obligation arose because of a report to him by a health
practitioner. Since the record does not establish that the female staff
member who informed Petitioner of the alleged abuse was a health
practitioner, the ALJ could not reasonably rely on that part of the Code
of Iowa. Moreover, the actual legal status of Handicap Village under
Iowa law is not established on the record so there is no basis for a
determination, based on the nature of the facility, that the dependent
adult in question was a patient who was at Handicap Village receiving
health care services.
Accordingly, we conclude that the ALJ erred by granting the I.G.'s
motion for summary disposition. We therefore remand FFCLs 16, 17, and
21 for further consideration by the ALJ of whether Petitioner's
conviction related to neglect of "patients" and was "in connection
with
the delivery of a health care item or service." The ALJ need not
immediately convene a hearing since it is unclear whether there would be
a genuine dispute as to the material facts related to these elements;
these elements simply were not established by the record before the ALJ.
The ALJ may provide the I.G. with a further opportunity to demonstrate
whether summary disposition is appropriate and of course must convene a
hearing if she determines that there is a genuine dispute as to material
fact. We also summarily affirm the ALJ's analysis that Petitioner's
criminal offense related to neglect. Therefore, FFCL 18 is affirmed
subject to any modifications required on remand.
I. There was not substantial evidence in the record that Petitioner was
convicted of a criminal offense relating to a patient and that the
criminal offense was in connection with the delivery of a health care
item or service.
The following FFCLs are at issue:
16. The elements of Petitioner's conviction establish that Petitioner
was "convicted" of a criminal offense relating to a patient, within
the
meaning of section 1128(a)(2) of the Act.
17. The elements of Petitioner's conviction establish that Petitioner
was convicted of a criminal offense which was "in connection with the
delivery of a health care item or service," within the meaning of
section 1128(a)(2) of the Act.
21. The exclusion imposed and directed by the I.G. against Petitioner
is in accordance with the mandates of the Act.
On appeal, Petitioner asserted that the I.G. had failed to meet its
burden to show that the resident in question was a "patient" or that
the
alleged neglect was "in connection with the delivery of a health care
item or service." 3/ Petitioner asserted that, at most, the record
established that he had been convicted of a failure to report suspected
abuse of a resident at Handicap Village. Petitioner asserted that the
ALJ had not cited the full section of the Iowa mandatory reporting
statute and had reached the "entirely unwarranted conclusion" that
--
Absent the involvement of a health care practitioner on Handicap
Village's staff who examined, attended, or treated the alleged victim of
abuse during her delivery of a health care item or service to him,
Petitioner would not have been convicted. Petitioner's failure to report
could not have resulted in his conviction had Handicap Village not been
an institution like a hospital. Petitioner's conviction was therefore
"in connection with the delivery of a health care item or service"
and
relating to a "patient" within the meaning of the Act.
ALJ Decision at 14.
The Code of Iowa (1991), at section 235B.1 7.a, imposed the mandatory
reporting requirement at issue here. In reaching the conclusion quoted
above, the ALJ relied on the following language from paragraph 7.a.:
A health practitioner . . . who examines, attends, or treats a
dependent adult and who reasonably believes the dependent adult has
suffered dependent adult abuse, shall report the suspected abuse to the
department of human services. If the health practitioner examines,
attends, or treats the dependent adult as a member of the staff of a
hospital or similar institution, the health practitioner shall
immediately notify the person in charge of the institution or the
person's designated agent, and the person in charge or the designated
agent shall make the report.
ALJ Decision at 12.
The ALJ then reasoned:
Petitioner's guilty plea and conviction for failure to report
"dependent adult abuse" establish that the resident who complained
of
sexual abuse was so severely handicapped that he was unable to protect
his own interests or adequately care for his own essential human needs
without help from others. . . . The fact that this individual resides at
Handicap Village . . . in such an utterly dependent state readily
implies that even the routine services provided by Handicap Village to
maintain his survival should have included health care services. . . .
The elements of Petitioner's conviction contradict Petitioner's theory
that during the period of time and in the events relevant to
Petitioner's conviction, the purported victim of abuse might have been
receiving only nonmedically related "residential or vocational care"
at
Handicap Village.
Id. at 12-13 (citations omitted).
Petitioner admitted that the language quoted by the ALJ imposed a
reporting requirement on health practitioners. However, Petitioner
asserted that the ALJ erred when she assumed, based on that language,
that the allegation of abuse was brought to Petitioner's attention by a
health practitioner and that Handicap Village was "a hospital or like
institution." Petitioner contended that the statute also established a
mandatory reporting obligation for the staff of institutions providing
residential services to individuals who do not need health services on a
regular basis. Thus, no health care practitioner need have been
involved in a violation of the reporting requirement. Petitioner
maintained that there was no proof in the record that his conviction was
"in connection with the delivery of a health care item or service."
Petitioner's Brief in Support of Appeal at 4-6.
The subsequent statutory language in paragraph 7.a. to which Petitioner
referred provided, in pertinent part:
A self-employed social worker, a social worker under the
jurisdiction of the department of human services, a social worker
employed by a public or private agency or institution, or by a public or
private health care facility as defined in section 135C.1, a certified
psychologist, a member of the staff of a mental health center, a member
of the staff of a hospital, a member of the staff or an employee of a
public or private health care facility as defined in section 135C.1, or
a peace officer, who, in the course of employment, examines, attends,
counsels, or treats a dependent adult or reasonably believes the
dependent adult has suffered adult abuse shall report the suspected
abuse to the department of human services.
Petitioner then noted that the Code of Iowa, Chapter 135C (titled
"Health Care Facilities") at section 135C.1 5 defines "health
care
facility" as "a residential care facility, a nursing facility, an
intermediate care facility for the mentally ill, or an intermediate care
facility for the mentally retarded." Paragraph 16 of that section
defines "residential care facility" as:
Any institution, place, building, or agency providing . . .
accommodation, board, personal assistance and other essential daily
living activities to three or more individuals . . . who by reason of
illness, disease, or physical or mental infirmity are unable to
sufficiently or properly care for themselves but who do not require the
services of a registered or licensed practical nurse except on an
emergency basis.
Section 135C.1 8 defines "intermediate care facility for the mentally
retarded" as an institution "with a primary purpose to provide health
or
rehabilitative services." Petitioner's Brief in Support of Appeal at 5.
Based on these statutory definitions, Petitioner reasoned that staff
members of institutions providing residential services to people who are
unable to properly care for themselves, but who do not need health care
on a regular basis, are mandatory reporters. Thus, Petitioner contended
that, contrary to the ALJ's rationale, a "health practitioner" is
not a
necessary element to a mandatory reporting violation. Moreover,
Petitioner argued that there was no proof that his conviction was in
connection with the delivery of a health care item or service as
opposed to being connected with residential services. Id. at 5-6
The Board has held that to succeed in a motion for summary disposition
the moving party must put forth evidence on each material element of its
case and that the evidence must be clear and not subject to conflicting
interpretation. Robert C. Greenwood, DAB 1423, at 2 (1993); Walley,
DAB 1367, at 5-7.
The I.G. has the burden of proof on each element of an exclusion case.
Additionally, as we explained in Walley, courts are in unanimous
agreement that a party moving for summary disposition --
has the initial burden of showing the absence of any genuine issue
as to all the material facts which, under applicable principles of
substantive law, entitle that party to judgment as a matter of law. If
the documents before the court fail to establish clearly that there is
no genuine issue as to any material fact, the motion must be denied.
Id. at 6 (citation omitted).
In concluding that the elements of Petitioner's conviction establish
that he was convicted of an offense related to a "patient" and that
the
offense was "in connection with the delivery of a health care item or
service," the ALJ Decision does not take into account the subsequent
language in paragraph 7.a. cited by Petitioner. Consequently, the ALJ
Decision lacks an adequate explanation for the ALJ's finding that the
female staff member who reported the suspected abuse to Petitioner was a
health practitioner rather than another individual required to report
under the statute.
We agree with Petitioner that there is no evidence in the record to show
that the part of the Iowa statute relied on by the ALJ was the part
which mandated that Petitioner report the suspected dependent adult
abuse. The allegation of abuse was brought to Petitioner's attention by
an individual described as a "female staff member." FFCL 2. Whether
by
design or by chance, the designation "female staff member" provides
no
basis for determining this individual's role at Handicap Village. There
is no evidence in the record from which one could determine if she was a
health practitioner or another type of employee at Handicap Village.
Handicap Village is identified only as "a residential and vocational
center which provides services for mentally and physically disabled
individuals," not a hospital or similar institution. FFCL 1. There is
no basis in the record for concluding what type of legal entity this
facility is; thus, it is unclear what part of the statute triggered
Petitioner's reporting obligation. The statute mandates a report of
suspected dependent adult abuse by the person in charge (or the
designated agent) of a "public or private institution, agency or
facility" when a staff member or employee of the institution is
designated by statute as a mandatory reporter (i.e., a social worker,
etc. on the institution's staff).
We note that a "health care facility" (as defined by the Code of
Iowa)
includes various types of facilities providing residential services.
However, on the face of the current record it is not clear if Handicap
Village is a "residential care facility" or an "intermediate
care
facility for the mentally retarded" or other type of facility which
would fall within the statutory definition of "health care facility."
If Handicap Village is in fact a "health care facility," the ALJ could
reasonably infer that it was delivering health care items or services
and its residents were patients. This (together with the conclusion
that Petitioner's offense was neglect) would be sufficient to establish
that the neglect was of patients in the delivery of a health care item
or service. We do not consider it necessary for the I.G. to establish
that the alleged abuser was engaged in the delivery of a service which,
by itself, would qualify as a health care service. Any service an
employee of a health care facility provides to patients is part of the
complex of institutional care which qualifies as a health care service.
Additionally, the ALJ's analysis was flawed because of her assumption
that the mandatory reporting obligation here was that of a "health
practitioner." There is no evidence in the record to support the ALJ's
conclusion that the part of the Code of Iowa upon which she relied
actually applied. Thus, there is no basis on the face of this record
for concluding that the "elements of Petitioner's conviction"
established the statutory prerequisites for a section 1128(a)(2)
exclusion as stated in FFCLs 16 and 17.
The ALJ erred in granting the I.G.'s Motion for Summary Disposition
based on an unwarranted assumption derived from the text of the Iowa
statute. The evidence in the record viewed in Petitioner's favor is
insufficient to support the ALJ's finding that the dependent adult was a
"patient" and that the criminal offense occurred "in connection
with the
delivery of a health care item or service."
In concluding that the ALJ erred, we have considered the I.G.'s
assertions that we should affirm the disputed FFCLs. The I.G. relied
on the definition of dependent adult in the Code of Iowa and argued that
Petitioner's argument was one of semantics, not substance. The Code of
Iowa, at section 235B.1(3), defines "dependent adult" as --
a person eighteen years of age or older who is unable to protect
the person's own interests or unable to adequately perform or obtain
services necessary to meet essential human needs, as a result of a
physical or mental condition which requires assistance from another, or
as defined by departmental rule.
The I.G. asserted that a dependent adult relies on others for essential
human needs so that such individuals are patients in any residential
care setting. The I.G. argued that Petitioner's argument was absurd and
would invite euphemistic designations such as client or customer to
avoid the application of section 1128(a)(2). Additionally, the I.G.
argued that since Handicap Village was a facility providing care to
physically and mentally disabled individuals, not a hotel, Petitioner's
conviction was clearly in connection with the delivery of a health care
item or service. I.G.'s Reply to Petitioner's Brief in Support of
Appeal at 2-4.
The I.G.'s assertions are not persuasive. While it is reasonable to
infer that a dependent adult would need health care services, it is not
a necessary inference from the statutory definition of a dependent adult
that a residential facility like Handicap Village was delivering health
care services. Even if it is unlikely that the I.G. is wrong as to this
alleged victim's status or the nature of the services provided at
Handicap Village, the record before the ALJ just does not provide
sufficient support for her conclusions. Since the I.G. had the burden
to support its Motion for Summary Disposition with evidence adequate for
the ALJ to find that there was no genuine dispute as to the elements of
section 1128(a)(2), the matter must be remanded for further
consideration of the conclusions stated in FFCLs 16, 17, and 21.
Although the ALJ may ultimately conduct a hearing, we do not find that
the ALJ necessarily erred by not conducting a hearing. The status of
the alleged victim, as well as that of the individual who brought the
allegation of abuse to Petitioner's attention, or the nature of Handicap
Village's institutional services could be developed by affidavit or
other documentary evidence. At this time, however, the inferences drawn
by the ALJ regarding these questions are not supported by evidence in
this record.
Consequently, we remand FFCLs 16, 17, and 21 to the ALJ so that she may
have an opportunity to further develop the record with regard to the
conclusions stated in those FFCLs.
II. The ALJ's analysis of whether Petitioner's offense was related to
neglect was correct.
Petitioner excepted to FFCL 18 where the ALJ stated --
The elements of Petitioner's conviction establish that Petitioner
was convicted of a criminal offense relating to "neglect" of patients,
within the meaning of section 1128(a)(2) of the Act.
Petitioner argued that the legislative history of the section 1128(a)(2)
shows that this exclusion provision was intended to reach persons who
directly or indirectly harm patients. Petitioner maintained that his
actions did not evidence potential or actual patient neglect.
Petitioner noted that he conducted a thorough investigation of the
allegations in this case, determined that they were baseless and
reasoned that the resident's welfare would not have benefitted by
reporting them. Petitioner argued that the I.G. and the ALJ were
required to examine these circumstances before deciding to exclude him.
Petitioner's Notice of Appeal at 6-10. 4/
We have reviewed Part C of the ALJ Decision which addresses the issue of
"neglect." Id. at 14-22. We find the ALJ's analysis of this issue
to
be correct and in accord with Carolyn Westin, DAB 1381 (1993), cited by
the ALJ. Accordingly, we summarily affirm this FFCL subject to any
adjustment required by the remand proceedings. If, after further
consideration on remand, the ALJ determines that Petitioner's offense
was for patient neglect she may retain FFCL 18 without modification.
Conclusion
Based on the preceding analysis we affirm and adopt FFCLs 1-15, 19, 20
and 22. However, we remand FFCLs 16, 17, and 21 to the ALJ for further
consideration of the conclusions reached in those FFCLs consistent with
our analysis. The ALJ may adjust the language of FFCL 18, which we
affirm in principle, if necessary because of her conclusions on remand.
_________________________ Judith A. Ballard
_________________________ M. Terry Johnson
_________________________ Cecilia Sparks Ford
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.
2. We affirm and adopt the remaining FFCLs 1-15, 19-20, and 22
without discussion.
3. Petitioner raised this argument for the first time in his Reply
Brief before the ALJ. Petitioner and the I.G. filed simultaneous reply
briefs. See Prehearing Order and Schedule for Filing Motions for
Summary Disposition (September 8, 1993) at 4 7.b. Thus, the I.G. did
not have an opportunity to respond to this issue before the ALJ.
4. On January 18, 1994 the Board received an unsolicited Reply Brief
from Petitioner devoted to the issue of "neglect." There is no inherent
right to file a reply brief these proceedings. See 42 C.F.R.
1005.21(c). Generally, the Board might ask parties to file replies
where it determined that such additional information was necessary to
develop the record, or the Board may permit a reply after a showing of
good cause by the requesting party. Neither circumstance was present
here. Nevertheless, we have examined Petitioner's Reply Brief and
determined that it would not change our analysis regarding the issue of