Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD
Civil Remedies Division
Brian Keith Labat,
(O.I. File No. E-23-40163-9),
Petitioner,
v.
The Inspector General
Docket No. C-24-296
Decision No. CR6505
DECISION
Petitioner, Brian Keith Labat, worked at a Specialized Treatment Facility in Gulfport, Mississippi. He was charged with abuse of a vulnerable person and pleaded guilty to the charge. Based on his conviction, the Inspector General (IG) has 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 IG properly excluded Petitioner Labat and that the statute mandates a minimum five-year exclusion.
Background
In a letter dated February 29, 2024, the IG notified Petitioner that he was excluded from participating in Medicare, Medicaid, and all federal health care programs for a period of five years because he had been 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. The letter explained that section 1128(a)(2) of the Act authorizes the exclusion. IG Ex. 1.
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Petitioner timely requested review.
Each party submitted a written argument (IG Br.; P. Br.). The IG submitted six proposed exhibits (IG Exs. 1-6). In the absence of any objections, I admit into evidence IG Exs. 1-6.1
The parties agree that an in-person hearing is not necessary. IG Br. at 7; P. Br. at 3.
Discussion
Petitioner must be excluded from program participation for a minimum of five years because he 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. Act § 1128(a)(2).2
Under section 1128(a)(2) of the Act, the Secretary of Health and Human Services must exclude an individual who has been convicted, under federal or state law, of “a criminal offense related to neglect or abuse of patients, in connection with the delivery of a health care item or service.” 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.
Here, Petitioner Labat was working as a care-giver at a Specialized Treatment Facility, located in Gulfport, Mississippi. On February 8, 2022, while supervising the dayroom, he grabbed a resident by the hair and pulled him across the room. The incident was caught on video. IG Exs. 3, 6.
Petitioner was charged with one count of misdemeanor abuse of a vulnerable person, in violation of Miss. Code Ann. § 43-47-19(2)(a). IG Exs. 3, 4, 5, 6.
On August 10, 2023, Petitioner pleaded guilty to the charge. The state court entered an order of non-adjudication and held the guilty plea in abeyance, ordering Petitioner to pay a $500 fine, $250 in investigative costs, and $157.75 in court fees. The court imposed a six-month suspension and six months of nonreporting probation. IG Exs. 2, 6. The matter was set for review on January 31, 2024, with the understanding that, if Petitioner
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Labat completed the terms of his probation without incident, the matter would be “non-adjudicated” and dismissed. IG Ex. 6 at 2.
On January 31, 2024, the court determined that Petitioner had successfully completed the terms of the deferred adjudication program and dismissed the charges. IG Ex. 5.
Petitioner asserts that he was not convicted of a crime because the case was not adjudicated but was ultimately dismissed. P. Br. at 2. The statute says otherwise. Individuals who participate in “deferred adjudication or other program or arrangement where judgment of conviction has been withheld” are “convicted” within the meaning of the statute. Act § 1128(i)(4); 42 C.F.R. § 1001.2(d). Based on these provisions, the Departmental Appeals Board characterizes as “well established” the principle that a “conviction” includes “diverted, deferred and expunged convictions regardless of whether state law treats such actions as a conviction.” Henry L. Gupton, DAB No. 2058 at 8 (2007), aff’d sub nom. Gupton v. Leavitt, 575 F. Supp. 2d 874 (E.D. Tenn. 2008).
For sound reasons, Congress deliberately defined “conviction” broadly to assure that exclusions would not hinge on state criminal justice policies. Funmilola Mary Taiwo, DAB No. 2995 at 6 (2020); Gupton, DAB No. 2058 at 7-8.
The rationale for the different meanings of “conviction” for state criminal law versus federal exclusion purposes follows from the distinct goals involved. The goals of criminal law generally involve punishment and rehabilitation of the offender, possibly deterrence of future misconduct by the same or other persons, and various public policy goals. [footnote omitted]. Exclusions imposed by the I.G., by contrast, are civil sanctions, designed to protect the beneficiaries of health care programs and the federal fisc, and are thus remedial in nature rather than primarily punitive or deterrent. . . . In the effort to protect both beneficiaries and funds, Congress could logically conclude that it was better to exclude providers whose involvement in the criminal system raised serious concerns about their integrity and trustworthiness, even if they were not subjected to criminal sanctions for reasons of state policy.
Gupton, DAB No. 2058 at 7-8.
Petitioner Labat was thus “convicted” within the meaning of section 1128(a)(2) and he is subject to exclusion.
Petitioner expresses concern about his serious health problems and need for ongoing care: “I just want the care and oppo[r]tunity to acces[s] all the health care that I am entitled [to] as a tax payer.” P. Br. at 2. Petitioner can rest assured that the exclusion does not affect his personal entitlement to healthcare benefits. As his notice letter explains:
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This exclusion does not affect your rights or the rights of your family members to collect benefits to which you or they may be entitled as a beneficiary under any Federal program such as Medicare, Medicaid, or Social Security.
Notice letter (E-file # 1c) at 3.
Finally, 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).
Conclusion
For these reasons, I conclude that the IG properly excluded Petitioner from participating in Medicare, Medicaid and all federal health care programs, and I sustain the five-year exclusion.
Endnotes
1 Responding to my order to show cause for failing to submit his prehearing exchange in accordance with my prehearing order, Petitioner submitted numerous medical records. Based on these records, I find good cause for the delays in his submissions.
2 I make this one finding of fact/conclusion of law.
Carolyn Cozad Hughes Administrative Law Judge