Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD
Appellate Division
In the Case of:
Leon Brown, M.D.,
Docket No. C-180
Decision No. 1208 Petitioner,
-
v.
The Inspector General.
DATE: November 15, 1990
FINAL DECISION ON REVIEW OF ADMINISTRATIVE LAW
JUDGE
DECISION
Petitioner requested review by the Appellate Panel of a June 12,
1990
decision by Administrative Law Judge (ALJ) Charles E. Stratton.
See
Leon Brown, M.D., DAB Civ. Rem. C-180 (1990) (ALJ's
Decision). The
ALJ's Decision granted the Inspector General's (I.G.)
motion for summary
disposition of Petitioner's appeal and upheld the I.G.'s
determination
excluding Petitioner from participation in the Medicare program
and
directing his exclusion from State health care programs for five
years.
Petitioner raised three arguments on appeal relating to the ALJ's
findings
of fact and conclusions of law and his supporting analysis.
(Petitioner's
appeal did not cite particular findings of fact and
conclusions of law to
which he objected, however.) We discuss these
arguments below and
conclude that the ALJ's Decision was correct.
Accordingly, we affirm the
five-year exclusion imposed on Petitioner and
adopt as our own each of the
ALJ's findings of fact and conclusions of
law (FFCLs).
I. Petitioner was "convicted" of a criminal offense within the
meaning
of section 1128(i) (FFCL No. 12).
In his analysis, the ALJ concluded that Petitioner met two of the
four
definitions of a person who could be considered to have been
"convicted"
of a crime under section 1128(i) of the Social Security
Act. See ALJ's
Decision, pp. 6-7. Petitioner argued that there
was insufficient
evidence in the record to support the finding of
"conviction" based on a
finding of guilt against him by a state court.
See section 1128(i)(2).
Even if we were to agree with that argument (which we
do not, as
discussed below) that argument would not cause us to reverse the
ALJ's
Decision since Petitioner clearly met another definition
for
"conviction" in section 1128(i). Under section 1128(i)(4), a person
is
considered to have been "convicted" of a criminal offense--
when the individual . . . has entered into
participation in a first
offender, deferred
adjudication, or other arrangement or program
where
judgment of conviction has been withheld.
Petitioner did not argue that he had not been "convicted" within
the
meaning of that provision, and the record fully supports the
ALJ's
conclusion that he was. The official transcript of the
proceedings
before the state court judge demonstrates that Petitioner
specifically
agreed to an arrangement whereby the judge stayed entry of
judgment and
placed Petitioner on probation for three years, with the balance
of the
probation to be suspended after Petitioner had made restitution in
the
amount of $10,050. I.G. Exhibit (Ex.) H. Thus, we find that
Petitioner
was "convicted" within the meaning of section 1128(i)(4).
We also find that Petitioner can be considered to have been
"convicted"
under section 1128(i)(2). (This finding is ultimately
unnecessary,
however, since an individual need only be "convicted" under one
of the
four definitions in section 1128(i).) The ALJ's Decision
relied
primarily on Petitioner's affirmative answer to the judge's
question
that he understood that the stipulated facts were sufficient to find
him
guilty of the charge. The ALJ added that the state court would not
have
had the authority to impose probation or any other type of
sanction
without a finding of guilt.
Petitioner on appeal conceded that a sentence to probation and
restitution
under Article 27, section 641 of the Annotated Code of
Maryland may result
only from a plea of guilty or nolo contendere or
from a finding of
guilt. Petitioner's Brief, p. 2. That section,
subtitled
"Probation after plea or finding of guilt; power of court to
provide terms
and conditions; waiver of right to appeal from judgment of
guilt,"
provides:
Whenever a person accused of a crime pleads guilty
or nolo
contendere or is found guilty of an offense,
a court exercising
criminal jurisdiction, if
satisfied that the best interests of the
person and
the welfare of the people of the State would be
served
thereby, and with the written consent of the
person after
determination of guilt or acceptance of
a nolo contendere plea, may
stay the entering of
judgment, defer further proceedings, and place
the
person on probation subject to reasonable terms and
conditions
as appropriate. (emphasis
added)
Since the court indisputably disposed of Petitioner's criminal
charge
under this provision, we agree with the ALJ that the court must
have
found Petitioner guilty, if Petitioner did not in fact plead guilty
or
nolo contendere (which would also have been a basis for finding
a
conviction under section 1128(i)). Thus, even though the
court
transcript indicates that a finding of guilt in the sense of an entry
of
judgment had been stayed, the Petitioner nevertheless had to have
been
found guilty for the court to stay the entering of judgment. The
basis
for that finding rests in the judge's statement that the
stipulated
facts were sufficient for a finding of guilt, and
Petitioner's
concurrence with that statement in court. The ALJ did not
rely on a
press release in support of this finding as Petitioner
implied. The ALJ
properly based his finding on the transcript of
proceedings (I.G. Ex.
H), the agreed statement of facts (I.G. Ex. E), the
plea agreement (I.G.
Ex. G), and the order for probation (I.G. Ex. I).
Thus, we uphold the
ALJ's finding concerning conviction under section
1128(i)(2).
II. Petitioner was convicted of a criminal offense "related to
the
delivery of an item or service under Medicaid" within the meaning
of
section 1128(a) (FFCL No. 13), and a minimum mandatory exclusion of
five
years is required (FFCL No. 14).
Petitioner also argued on appeal that the ALJ incorrectly failed
to
consider whether a permissive exclusion under section 1128(b) would
have
been appropriate in lieu of his mandatory exclusion under
section
1128(a). We have previously considered this issue in several
earlier
appeals. See, e.g., Jack W. Greene, DAB No. 1078 (1989), pp.
9-11,
aff'd, 731 F. Supp. 838 (E.D. Tenn. 1990); Charles W. Wheeler and
Joan
K. Todd, DAB No. 1123 (1990), pp. 6-7; Napoleon S. Maminta, M.D.,
DAB
No. 1135 (1990). We concluded that in the absence of section
1128(a),
which provides that the Secretary "shall" exclude individuals
where
applicable, it is possible that an offense that would have required
a
mandatory exclusion would also fit within the scope of the
1128(b)
provisions. However, section 1128(a) in fact exists and the
Secretary
consequently has no obligation under the statute to decide that
section
1128(b) would not apply to a particular criminal offense before
applying
the mandatory provisions of section 1128(a) to that offense.
Here,
Petitioner did not argue (much less demonstrate) that section
1128(a)
was not applicable to his offense. Since the requirements of
the
mandatory provisions in section 1128(a) have been met, the
Secretary
must impose an exclusion under that provision.
III. Summary disposition was appropriate in this case (FFCL No. 11).
Finally, Petitioner argued that he was improperly denied a
post-suspension
hearing, citing Ram v. Heckler, 792 F.2d 444 (4th Cir.
1986). The ALJ's
Decision concluded that there were no genuine issues
of material fact that
would require the submission of additional
evidence, and accordingly granted
the I.G.'s request for summary
disposition of the appeal. Petitioner
did not take exception to the
ALJ's conclusion concerning the absence of a
dispute about material
facts requiring additional evidence, nor did he allege
that he could
have submitted any additional evidence at a hearing that would
have been
relevant to the issues in dispute. Further, although the ALJ
stated in
his order and schedule dated March 16, 1990 that Petitioner should
file
a request for oral argument with his response brief, Petitioner made
no
request for oral argument with his brief. Nor did Petitioner
request
oral argument before this appellate panel.
The Ram decision, which Petitioner cited, clearly does not support
his
position, since the decision indicates that genuine issues of
material
fact related to the appropriate length of the suspension existed
there
that reasonably could have required hearing testimony.
Petitioner's
exclusion here was for the mandatory minimum five-year period
required
by statute, and therefore no factual issue was raised concerning
the
appropriate length of the exclusion.
Conclusion
Based on the foregoing, we affirm the five-year exclusion imposed
on
Petitioner.
Judith A. Ballard
Theodore J. Roumel U. S. Public Health Service
Donald F. Garrett Presiding Panel