SUBJECT:

Charles D. Howard, M.D.,

Petitioner,

The Inspector General.

DECISION

I grant the Inspector General's (I.G.'s) motion for summary affirmance and, thus, sustain the I.G.'s determination to exclude Petitioner, Charles D. Howard, M.D., from participating in Medicare, Medicaid, and other federal health care programs for a period of five years. I find that the I.G. is authorized to exclude Petitioner pursuant to section 1128(a)(2) of the Social Security Act (Act), and that the five-year exclusion imposed by the I.G. against Petitioner is the minimum mandatory period of exclusion under the Act.

I. Background

By letter dated February 28, 2005, the I.G. notified Petitioner that he was being excluded from participation in Medicare, Medicaid, and all federal health care programs (as defined in section 1128B(f) of the Act) for a minimum period of five years. The I.G. advised Petitioner that he was being excluded pursuant to section 1128(a)(2) of the Act as a result of his conviction in the Washington Circuit Court, Commonwealth of Kentucky, of a criminal offense related to neglect or abuse of patients in connection with the delivery of a health care item or service. The I.G. also noted that the Act mandates that Petitioner be excluded for a minimum period of five years. Petitioner appealed his exclusion by timely filing a request for hearing on March 23, 2005.

On May 23, 2005, I convened a prehearing telephone conference. As a result of the briefing schedule set during that conference call, the I.G., on June 24, 2005, submitted The Inspector General's Motion for Summary Affirmance and Brief in Support of Motion for Summary Affirmation (I.G. Br.) and three proposed exhibits (I.G. Exs. 1-3). Petitioner submitted The Petitioner's Brief in Response to Motion for Summary Affirmance (P. Br.) and no proposed exhibits. On August 8, 2005, the I.G. submitted The Inspector General's Motion for Leave to Reply to Petitioner's Response to Motion for Summary Affirmance and The Inspector General's Reply Brief (I.G. R. Br.) and another proposed exhibit (I.G. Ex. 4). I find the I.G. has shown good cause for submitting a reply and admit it into the record.

As part of his original brief and in his August 24, 2005 response to the I.G.'s reply, Petitioner submitted objections to the admission of proposed I.G. Exs. 2 and 4. With respect to I.G. Ex. 2, a copy of the indictment used to charge Petitioner with a criminal offense, Petitioner objects because the general allegations contained therein do not necessarily constitute the factual basis upon which a plea is entered. I consider this an objection to the weight to be given the exhibit, not an objection to admissibility. With respect to I.G. Ex. 4, an emergency order of suspension by a medical licensing board, Petitioner contends the order was ex parte and Petitioner did not have an opportunity to rebut any of the allegations included in the document. Again, I find that Petitioner's objection to I.G. Ex. 4 is more properly an argument regarding the weight to be given the exhibit. Petitioner provides no particular rationale why I.G. Ex. 4 should not be admitted on evidentiary grounds. He suggests that the allegations contained in it constitute uncontested hearsay. Hearsay, however, is admissible in these proceedings. I, therefore, overrule Petitioner's objections and admit all proposed exhibits into the record.

II. Issues

The issues in this care are:

1. Whether summary affirmance is appropriate in this case; and,

2. Whether the I.G. had a basis under section 1128(a)(2) of the Act to exclude Petitioner from participation in Medicare, Medicaid, and all federal health care programs.

III. Applicable Law

Section 1128(a)(2) of the Act mandates exclusion from federal health care programs of an individual or entity convicted of "a criminal offense related to neglect or abuse of patients in connection with the delivery of a health care item or service." Section 1128(i) of the Act defines the term "convicted" to include: (1) when a judgment of conviction has been entered against the individual or entity by a federal, state or local court, regardless of whether there is an appeal pending or whether the judgment of conviction or other record relating to criminal conduct has been expunged; (2) when there has been a finding of guilt against the individual or entity by a federal, state or local court; (3) when a plea of guilty or nolo contendere by the individual or entity has been accepted by a federal, State, or local court; or (4) when the individual or entity has entered into participation in a first offender, deferred adjudication, or other arrangement or program where judgment of conviction has been withheld. Section 1128(i)(1)-(4) of the Act.

Section 1128(c)(3)(B) of the Act sets the minimum exclusion period at five years. The Secretary of Health and Human Services (Secretary) has given the I.G. the responsibility for excluding an individual convicted of patient abuse or neglect. 42 C.F.R. § 1001.101(b).

IV. The Petitioner's Contentions

In this case, Petitioner objects to a summary judgment decision and asks me to hold an in-person hearing to permit me "to consider evidence regarding the alleged circumstances that lead to the indictment and diversion agreement." P. Br. at 7. He also objects to the admission of the indictment filed against him because (1) the general allegations of an indictment do not necessarily constitute the factual basis upon which a plea is entered, and (2) the indictment at issue, I.G. Ex. 2, does not state that the offense charged involved a doctor-patient relationship or the delivery of a health care item or service. Moreover, Petitioner asserts that I.G. Ex. 1, which sets forth Petitioner's agreed upon surrender of his medical license, is not a conviction upon which an exclusion can be based and he has a right to a hearing to contest any conclusion or inference that may be made from the document. Petitioner also argues that he was not convicted of an offense because he entered into a conditional Alford plea as part of a pre-trial diversion program. ⁽¹⁾

V. Findings of Fact and Conclusions of Law

I make findings of fact and conclusions of law to support my decision in this case. I set forth each finding below, as a separate finding. Petitioner agreed to the following I.G. proposed findings:

1. At all times relevant to this case, Charles D. Howard, M.D. was licensed by the Kentucky Board of Medical Licensure to practice medicine. I.G. Ex. 1, at 1.

2. In October 2002, Petitioner was indicted by the Washington Circuit Grand Jury on one count of Unlawful Imprisonment in the First Degree, a Class D Felony, and one count of Sexual Abuse in the First Degree, a Class D Felony. I.G. Ex. 2.

3. The Indictment charged that, on or about May 2002, Petitioner (1) "knowingly and unlawfully restrained another person under circumstances which exposed that person to a risk of serious physical injury" and (2) "subjected another person to sexual contact by forcible compulsion." I.G. Ex. 2.

4. On June 28, 2004, Petitioner entered into a two-year Pretrial Diversion agreement pursuant to North Carolina v. Alford. I.G. Ex. 3.

5. On October 21, 2004, Petitioner entered into an Agreed Order of Surrender pursuant to which he voluntarily surrendered his medical licence. I.G. Ex. 1.

I make the following findings to which Petitioner did not agree:

6. Summary judgment is appropriate in this case.

7. Petitioner was convicted under Kentucky 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.

8. The I.G. had a basis upon which to exclude Petitioner from participation in Medicare, Medicaid, and all federal health care programs.

9. The I.G. is required to exclude Petitioner for a period of at least five years.

IV. Discussion

A. Summary affirmance is proper in this case.

Summary judgment (or affirmance) is appropriate when there is no genuine dispute as to any material fact, and the moving party is entitled to judgment as a matter of law. Lebanon Nursing and Rehabilitation Center, DAB No. 1918 (2004). The party moving for summary judgment bears the initial burden of showing the basis for its motion and identifying the portions of the record that it believes demonstrate the absence of a genuine factual dispute. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If a moving party carries its initial burden, the non-moving party must "come forward with 'specific facts showing that there is a genuine issue for trial.'" Matsushita Elec. Industrial Co. v. Zenith Radio, 475 U.S. 574, 587 (1986) (quoting Fed. R. Civ. P. 56e). That is, the non-moving party must act affirmatively by tendering evidence of specific facts showing that a dispute exists. Denials and assertions in pleadings or briefs are not sufficient to overcome a well-supported motion. In this case, the I.G. carried his initial burden of showing that Petitioner was convicted of a criminal offense relating to neglect or abuse of patients in connection with the delivery of a health care item or service. Petitioner has failed to tender evidence of specific facts showing that a dispute exists. Petitioner's denials and assertions are insufficient to overcome the I.G.'s submitted evidence. I conclude that summary affirmance in this case is appropriate.

B. The I.G. offered evidence sufficient to prove that Petitioner was convicted of a criminal offense.

Conviction for purposes of exclusion is defined in Section 1128 of the Act. Under Section 1128(i), an individual is convicted of a criminal offense when any one of four alternative situations has occurred:

•when a judgment of conviction has been entered against the individual or entity by a federal, state, or local court, regardless of whether there is an appeal pending or whether the judgment of conviction or other record relating to criminal conduct has been expunged;

•when there has been a finding of guilt against the individual or entity by a federal, state, or local court;

•when a plea of guilty or nolo contendere by the individual or entity has been accepted by a federal, state, or local court; or

•when the individual or entity has entered into participation in a first offender, deferred adjudication, or other arrangement or program where judgment of conviction has been withheld.

The I.G. has shown that Petitioner was indicted, via Indictment No. 02-CR-00092, in the Commonwealth of Kentucky, Eleventh Judicial District, Washington Circuit Court, on one count of Unlawful Imprisonment in the First Degree, a Class D Felony, and one count of Sexual Abuse in the First Degree, also a Class D Felony. I.G. Ex. 2. The I.G. has also shown that on June 28, 2004, Petitioner, with respect to the charges of "Unlawful Imprisonment/Sexual Abuse" entered into a plea "pursuant to North Carolina v. Alford." I.G. Ex. 3. An Alford plea constitutes a conviction within the meaning of Section 1128(i) of the Act. An Alford plea is in the nature of a nolo contendere plea. Petitioner's Alford plea was accepted by the Court. I.G. Ex. 3. An accepted nolo contendere plea constitutes a conviction for purposes of an exclusion under section 1128(i)(3) of the Act. Moreover, the order signed by Petitioner and admitting him into a pretrial diversion program in Kentucky clearly shows that Petitioner entered into a "deferred adjudication, or other arrangement or program where judgment of conviction has been withheld." Section 1128(i)(4) of the Act. Petitioner must complete the diversion program successfully or the Court may sentence Petitioner. I.G. Ex. 3. I find, therefore, that Petitioner was convicted within the meaning of the Act.

C. The I.G. proved that the conduct for which Petitioner entered into an Alford plea is a criminal offense relating to neglect or abuse of patients in connection with the delivery of a health care item or service.

The I.G. submitted Petitioner's agreement to surrender his medical license made with the Commonwealth of Kentucky's Board of Medical Licensure. I.G. Ex. 1. While Petitioner, in the order, "denies engaging in any inappropriate conduct with patients . . . .," the agreed order shows that Petitioner was charged with First Degree Unlawful Imprisonment and First Degree Sexual Abuse, under Indictment No. 02-CR-092, based upon allegations that he engaged in inappropriate sexual touching of Patient E. Indictment No. 02-CR-092 is the indictment that is the subject of the I.G.'s instant exclusion. Id. at 4. While neither the language of the indictment alone nor the language of the agreed order alone sets forth all the elements necessary for finding that Petitioner was convicted of a criminal offense related to neglect or abuse of a patient in connection with the delivery of a medical service, when one puts the two documents together, the finding is clear. The I.G. need not rely on solely one or the other of the exhibits to carry its burden. The ALJ must examine whether there is "some nexus or common sense connection between the offense of which a petitioner was convicted and the delivery of an item or service under a covered program." Berton Siegel, DAB No. 1467 (1994). In determining whether there is such a nexus or connection, evidence as to the nature of an offense may be considered, such as facts upon which the conviction was predicated. Siegel at 6-7.

Moreover, the I.G. submitted his Ex. 4, an order of emergency suspension of Petitioner's license issued by Kentucky's Board of Medical Licensure prior to the agreed upon order of suspension. This document describes Patient E's complaints in further detail. That the conduct described in I.G. Ex. 4 is the subject of the indictment for which Petitioner was convicted is further supported by the fact that both describe conduct that occurred in May 2002. I.G. Exs. 1, 4. According to I.G. Ex. 4, Patient E had been Petitioner's patient since 1994. In May 2002, Patient E went to Petitioner's office for neck pain and a migraine headache. After Patient E went into Petitioner's examination room, he came up behind her and started rubbing her neck from behind. Among many other reported abusive actions, when Patient E stood and turned to face Petitioner, Petitioner grabbed her around the waist and tried to forcibly stick his hand into her pants. I.G. Ex. 4, at 5. This description provides a more than sufficient connection between Petitioner's conviction for a criminal offense and abuse of a patient in connection with the delivery of a health care item or service.

D. Petitioner failed to offer specific evidence to rebut the I.G.'s proof.

The Petitioner argues that the Alford plea under the terms of the diversion agreement does not, standing alone, establish as a matter of law for summary affirmance that Petitioner engaged in conduct that would subject him to exclusion under section 1128 (a)(2) of the Act. "The Petitioner vigorously contends that no conduct which would subject him to exclusion under section 1128(a)(2) occurred." P. Br. at 3.

As noted above with respect to the standards for summary judgment, once the moving party, the I.G., has met its burden, the Petitioner must do more than "vigorously contend" in order to defeat the I.G.'s motion. Petitioner is required to come forward with specific facts to show that there is a genuine dispute whether his conviction was for sexual abuse of a patient or was in connection with the delivery of a health care item or service. Petitioner has failed to do this and, instead, has tendered only arguments and assertions. Petitioner submitted no documents or affidavits that would allow me to accept that a dispute exists that his conviction relating to Patient E involved neither a patient nor the delivery of a health care item or service. To defeat the I.G.'s motion for summary judgment, it was incumbent upon Petitioner to provide some minimal evidence to show that his indictment and conviction were for some conduct other than that claimed by the I.G.

The I.G. has met its burden for purposes of summary affirmance by showing that the conduct involved in Petitioner's conviction was for inappropriate sexual touching of a patient. Petitioner's conviction was for abuse, e.g., First Degree Sexual Abuse, and was in connection with the delivery of a health care item or service.

Petitioner also argues that an in-person hearing is necessary to provide him with the opportunity to question witnesses and submit other evidence contesting that the conviction involved a patient or was in connection with the delivery of a medical item or service. In addition to his failure to proffer any evidence to the contrary, Petitioner's argument is unpersuasive because an exclusion under section 1128(a)(2) is a derivative exclusion; it is based on the fact of a criminal conviction. Excluding individuals based on criminal convictions "provides protection for federally funded programs and their beneficiaries and recipients, without expending program resources to duplicate existing criminal processes." Peter J. Edmonson, DAB No. 1330, at 4 (1992). Once a conviction is entered, "the basis for the underlying conviction . . . is not reviewable and the individual . . . may not collaterally attack it . . . ." 42 C.F.R. § 1001.2007 (d).

For the reasons stated above, I find that the I.G. has shown Petitioner was convicted of a criminal offense related to neglect or abuse of a patient in connection with the delivery of a health care item or service. Petitioner has provided no evidence to show that there is a genuine dispute about the facts upon which the I.G. relied.

E. Once the I.G. has shown a basis for an exclusion under section 1128(a)(2) of the Act, an exclusion of at least five years is mandated.

The statute is clear. In the case of an exclusion under section 1128(a), the minimum period of exclusion shall be not less than five years. Section 1128(c)(3)(B) of the Act. Since the I.G. imposed the minimum exclusion on Petitioner, no question of the reasonableness of the length of the exclusion exists.

VII. Conclusion

I grant the I.G.'s motion for summary affirmance. The Petitioner has not raised any material facts in dispute. The I.G. has shown the elements necessary for the I.G. to impose an exclusion against an individual under section 1128(a)(2) of the Act. The Petitioner must, therefore, be excluded for the mandatory minimum of five years.

Anne E. Blair

Administrative Law Judge

1. The term 'Alford plea' comes from the case of North Carolina v. Alford, 400 U.S. 25 (1970) in which the Supreme Court found that when a defendant is represented by counsel and a strong factual basis for a guilty plea exists, a court commits no error in accepting a guilty plea despite the defendant's claims of innocence. An Alford plea is similar to a plea of nolo contendere.