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Bronx Petitioner Conceal The Error By Misinforming The Patient
Carmencita Alhabsi, the Petitioner herein, was notified by the Inspector General (I.G.), U.S. Department of Health and Human Services (HHS), that it had been decided to exclude her for a period of five years from participation in the Medicare, Medicaid, Maternal and Child Health Services Block Grant and Block Grants to States for Social Services programs.
The I.G. explained that the five-year exclusion was being imposed pursuant to section 1128(a)(2) of the Social Security Act (Act) because Petitioner had been convicted in the Criminal Court of the City of New York, Bronx County, of a criminal offense relating to the neglect or abuse of patients in connection with the delivery of a health care item or service.
The I.G. moved for summary disposition. Because I have determined that there are no material and relevant factual issues in dispute (the only matter to be decided is the legal significance of the undisputed facts), I have decided the case on the basis of the parties' written submissions in lieu of an in-person hearing.
Applicable Law
Sections 1128(a)(2) and 1128(c)(3)(B) of the Act make it mandatory for any individual who has been convicted of a criminal offense relating to neglect or abuse of patients in connection with the delivery of a health care item or service to be excluded from participation in the Medicare and Medicaid programs for a period of not less than five years.
Petitioner's Argument
Petitioner contends that her conviction for "violations" of the New York Penal Law is not a conviction of a "criminal" offense and cannot be the basis for an exclusion under section 1128(a)(2) of the Act. In particular, Petitioner maintains that her conviction was for harassment and disorderly conduct, which do not rise to the level of "criminal" misconduct. She maintains that, although the criminal accusation filed against her alleged facts and specified offenses which may constitute criminal offenses, she in fact pled guilty to lesser offenses which do not constitute criminal offenses and also do not establish the elements of patient abuse or neglect.
The accusation charges that Petitioner: negligently injected insulin into Lina Y., a nursing home resident; attempted to conceal the error by misinforming the patient; and made false entries in the nursing home records to conceal the fact that she had negligently injected the patient with insulin.
Conclusion
Sections 1128(a)(2) and 1128(c)(3)(B) of the Act mandate that Petitioner herein be excluded from the Medicare and Medicaid programs for a period of at least five years because she was convicted of a criminal offense related to the abuse or neglect of a patient in connection with the delivery of a health care item or service. The five-year exclusion is therefore sustained.
Joseph K. Riotto
Administrative Law Judge
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