SUBJECT:

Trent C. Brash,

Petitioner,

The Inspector General.

DECISION

By letter dated August 31, 2004, the Inspector General (I.G.), United States Department of Health and Human Services, notified Trent C. Brash (Petitioner) that he would be excluded from participation in Medicare, Medicaid, and all federal health care programs as defined in section 1128B(f) of the Social Security Act (Act), for a period of five years. The I.G. imposed this exclusion, pursuant to section 1128(a)(3) of the Act, because of Petitioner's guilty plea in the Court of Common Pleas, Columbiana County, State of Ohio, to felony criminal offenses related to theft in connection with the delivery of health care items. As explained below, I sustain the I.G.'s determination to exclude Petitioner from participating in Medicare, Medicaid, and all federal health care programs for a period of five years.

I. Background

Petitioner timely filed a request for hearing on October 4, 2004. I held a prehearing telephone conference with the parties on December 2, 2004. During the telephone conference, I.G. counsel said he planned to file a motion for summary affirmance and believed an in-person hearing would be unnecessary. Petitioner agreed that a decision could be made based on written submissions and exhibits. Thereafter, in this proceeding, the parties filed the following motions and supporting briefs:

� On January 5, 2005, the I.G. filed "The Inspector General's Motion for Summary Affirmance."

�On February 1, 2005, Petitioner filed "Petitioner's Brief in Support of Motion for Summary Judgment Reversing Program Exclusion." (P. Br.)

�On February 17, 2005, the I.G. requested leave to file a reply brief. I established a supplementary briefing schedule.

�On March 7, 2005, the I.G. filed "The Inspector General's Reply Brief." (I.G. R. Br.).

�Although Petitioner was given until March 21, 2005, to file a sur-reply, Petitioner submitted nothing further.

The I.G. submitted six proposed exhibits (I.G. Exs. 1 - 6). Petitioner submitted no exhibits and did not object to the I.G.'s proposed exhibits. Therefore, I.G. Exs. 1 - 6 are admitted into the record.

Because I have determined there are no material facts at issue and the only matter to be decided is the legal significance of the facts, I have decided that summary disposition is appropriate. The case can be decided on the basis of the parties' written submissions in lieu of an in-person hearing. Fed. R. Civ. P. 56(c); Garden City Medical Center, DAB No. 1763 (2001); Everett Rehabilitation and Medical Center, DAB No. 1628, at 3 (1977) (in-person hearing required where non-moving party shows there are material facts in dispute that require testimony).

In making this decision to sustain the I.G.'s imposition of an exclusion against Petitioner, I have considered the record exhibits, the parties' arguments, and the applicable law and regulations.

II. Applicable Law

Under section 1128(a)(3) of the Act, it is mandatory that the Secretary of Health and Human Services exclude from participation in the federal health care programs any individual who has been convicted of a criminal offense, that occurred after the date of enactment of the Health Insurance and Portability and Accountability Act (HIPAA) of 1996, consisting of a felony relating to fraud, theft, embezzlement, breach of fiduciary responsibility, or other financial misconduct in connection with the delivery of a health care item or service or with respect to any act or omission in a health care program financed in whole or in part by a government entity. Exclusions imposed pursuant to section 1128(a)(3) of the Act are mandatory and must remain in effect for a period of not less than five years. Act, section 1128(c)(3)(B); 42 C.F.R. � 1001.102(a).

III. Issue

The issue is whether a basis exists under section 1128(a)(3) of the Act for Petitioner's exclusion.

IV. The Parties' Contentions

A. The I.G.'s Arguments

The I.G. contends that all of the elements exist that call for Petitioner's mandatory exclusion for the statutory minimum of five years in that: (1) Petitioner was convicted; (2) of a felony; (3) after the enactment of HIPAA on August 21, 1996; (4) of a crime relating to fraud, theft, embezzlement, breach of fiduciary responsibility, or other financial misconduct; and (5) in connection with the delivery of a health care item or service.

B. Petitioner's Arguments

Petitioner contends that he was not convicted as defined in section 1128(i) of the Act, because his guilty plea was part of his participation in an intervention in lieu of conviction program. Petitioner argues that because the court specifically found that he had successfully completed his intervention in lieu of conviction, the indictment against him was dismissed. P. Br. at 3. Petitioner acknowledges that the Departmental Appeals Board (Board) has previously considered the particular Ohio statute to which he refers, and that the Board has interpreted Ohio's "intervention in lieu of conviction" as a conviction for purposes of exclusion. Handel J. Roberts, DAB CR911 (2002); P. Br. at 4 - 5. Petitioner, nonetheless, argues that his situation is different. Petitioner relies on Ohio State law to argue that because the court dismissed the indictment and expunged the record, Petitioner actually was on "probation in lieu of conviction" but had not been convicted. Petitioner also refers to the applicable Ohio statute which states the following:

Successful completion of the intervention plan and period of abstinence under this section shall be without adjudication of guilt and is not a criminal conviction for purposes of any disqualification or disability imposed by law and upon conviction of a crime, and the court may order the sealing of records related to the offense in question . . . .

Ohio Rev. Code Ann. �� 2953.31 to 2953.36 (1996).

Petitioner argues that he was admitted to the treatment intervention program prior to the entry of a guilty plea and was, therefore, not convicted.

V. Findings of Fact and Conclusions of Law

I discuss my findings and conclusions below each lettered heading.

A. Petitioner was convicted as "conviction" is defined in the Act.

The I.G. must first prove a basis for Petitioner's exclusion; i.e., whether Petitioner was actually convicted.

Petitioner does not dispute the I.G.'s statement of facts. Petitioner was a certified registered nurse anesthetist in the State of Ohio. I.G. Ex. 3. On or about September 30, 1997 through October 20, 1997, while working at the East Liverpool City Hospital, East Liverpool, Ohio, Petitioner stole quantities of Fentanyl, a "Schedule II narcotic," ⁽¹⁾ that was intended for surgical patients at the hospital. Petitioner obtained the drugs from the hospital's anesthesiology narcotics supplies by overstating actual patient dosage and self-administering the excess. I.G. Exs. 3, 4. On December 4, 1997, a criminal indictment was filed in the Court of Common Pleas, Columbiana County, Ohio, charging Petitioner with nine counts of theft of drugs, in violation of Ohio Rev. Code Ann. � 2913.02(A)(2) (1996). I.G. Ex. 4. Theft of drugs, as Petitioner was charged, is a felony under Ohio law. Ohio Rev. Code Ann. � 2913.02(B) (1996).

Under Ohio law, a drug-dependent offender may petition the court for treatment in lieu of conviction. Ohio Rev. Code Ann. � 2951.04(A) (1996). Petitioner sought status as a drug-dependent offender. The court accepted his request for drug-dependent status and ordered Petitioner to undergo a three-year period of rehabilitation. I.G. Ex. 6.

The I.G., in his reply brief, did not contest the statement of facts in Petitioner's brief that: (1) Judge David Tobin of the Court of Common Pleas, Columbiana County, found that Petitioner had successfully completed his treatment in lieu of conviction; (2) that the Judge dismissed the indictment; and (3) that Petitioner was released from probation. I.G. R. Br. 7.

Under Ohio law, if an offender is charged with a criminal offense and the court has reason to believe that drug or alcohol usage was a factor leading to the offender's criminal behavior, the court may accept, prior to the entry of a guilty plea, the offender's request for intervention in lieu of conviction. Ohio Rev. Code Ann. � 2951.041 (1996).

An offender may be eligible for the intervention program if, inter alia: (1) the offender is a first-time offender; (2) the offender's alleged felony is not of the 1^st, 2^nd, or 3^rd degree; (3) the offender's alleged felony is non-violent; (4) the offense does not have a mandatory sentence; (5) drug treatment would substantially reduce the likelihood of any future criminal activity; (6) the alleged offense did not result in physical harm to any person; and (7) the offender was not previously treated for drug abuse. Ohio Rev. Code Ann. � 2951.041 (1996)

The applicable Ohio law further provides that if the court finds that the offender is eligible for intervention in lieu of conviction and grants the offender's request:

. . . [t]he court shall accept the offender's plea of guilty and waiver of the defendant's right to a speedy trial, the preliminary hearing, the time period within which the grand jury may consider an indictment against the offender, . . . the court may then stall all criminal proceedings and order the offender to comply with all terms and conditions imposed by the court . . .

Ohio Rev. Code Ann. � 2951.041 (1996) (emphasis added).

Pursuant to the federal statute at issue in this case, however, a person is "convicted" within the meaning of section 1128(i) of the Act if:

(1) 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.

Act, section 1128(i).

The question Petitioner presents is whether Ohio's intervention in lieu of conviction program, in which he participated, fits within the statutory definition of "conviction" as set forth in the Act.

A number of states have devised alternative criminal plea programs which, among other things, lessen the stigma of a criminal conviction. The Act at issue herein was amended specifically to include the alternative programs within the definition of "conviction" for exclusion purposes; i.e., the Act expressly includes first offender, deferred adjudication, and other arrangements or programs where judgment of conviction has been withheld. Act, section 1128(i). Administrative law judges of the Board have previously considered such programs in the context of the exclusion provisions of the Act. Their decisions are inclusive in holding that these types of arrangements are convictions under the Act. Carlos E. Zamora, M.D., DAB CR22 (1989), aff'd, DAB No. 1104 (1989); Benjamin P. Council, M.D., DAB CR391 (1995); Conrad J. Sarnecki, D.O., DAB CR722 (2000).

Petitioner points to the language in the Ohio statute that his intervention plan in lieu of conviction is without adjudication of guilt and is not a criminal conviction. Therefore, he argues, it cannot serve as the basis of an exclusion. However, the language of the Ohio Rev. Code Ann. � 2951.041 (1996), "the court shall accept the offender's plea of guilty" and "the court shall dismiss the proceedings against the offender [if the offender completes a treatment program successfully]," compared with the plain language of the Act, shows that Ohio's intervention in lieu of conviction program fits precisely within the definition of "conviction" in the Act. First, the Ohio court had to accept Petitioner's guilty plea in order to enroll him in the intervention program. Thus, Petitioner's situation fits within section 1128(i)(3) of the Act. Moreover, Ohio's intervention in lieu of conviction program will result in the conviction of the participant if the participant fails to abstain from drugs and/or alcohol for a specified period of time. Ohio's intervention in lieu of conviction is clearly an "other arrangement or program where judgment of conviction has been withheld," and thus fits within the language of section 1128(i)(4) of the Act. Thus, Petitioner was convicted as "conviction" is defined in the Act.

Petitioner refers to an Ohio appellate court decision holding that an individual who had participated in the "treatment in lieu of conviction" program need not wait three years to move for sealing of records as required in other Ohio laws because the individual had not been "convicted." State v. Fortado, 108 Ohio App. 3d 706; 671 N.E. 2d 622 (1996). Petitioner argues from this holding that he has not been "convicted" for purposes of exclusion either. The I.G.'s decision, however, to exclude a petitioner from all federal health care programs is a matter governed by federal law based on the Supremacy Clause of the United States Constitution. Congress determined in the statutory definition of conviction that arrangements as described in section 1128(i) of the Act were to be considered convictions for purposes of the federal exclusion law, even if they were not convictions under state law. Janet Wallace, L.P.N., DAB No. 1326 (1992); Diane Amicucci, L.P.N., DAB CR540 (1998); Michael P. Hiotis, DAB CR316 (1994). A state cannot bar enforcement of a federal law in contravention of the Supremacy Clause. If a state program fits the definition of "conviction" specifically set forth in a federal law, it will be a conviction for purposes of that statute regardless of the language of the state law. Id.

B. Petitioner's conviction was for a felony offense that occurred after August 21, 1996, and was related to theft in connection with the delivery of a health care item or service.

The Act provides that mandatory exclusion applies to an individual convicted for an offense which occurred after the date of the enactment of HIPAA of 1996, under federal or state law, in connection with the delivery of a health care item or service or with respect to any act or omission in a health care program operated by or financed in whole or in part by any federal, state, or local government agency, consisting of a felony relating to fraud, theft, embezzlement, breach of fiduciary responsibility, or other financial misconduct. Act, section 1128(a)(3).

HIPAA was enacted on August 21, 1996. The acts for which Petitioner was convicted occurred from September 30, 1997 through October 20, 1997. I.G. Exs. 3, 4. Thus, the offenses occurred after the date of enactment of HIPAA.

Petitioner, while working as a certified nurse anesthetist at a hospital, stole Fentanyl that was intended for the hospital's surgical patients. Petitioner, while committing the acts for which he was convicted, was directly involved in the delivery of both health care items and services, and his theft was of a portion of these items. I.G. Ex. 6. Edward J. Levine, M.D., DAB CR735 (2001).

Additionally, the offenses for which Petitioner was convicted are for his acts of theft and are felonies under Ohio law. Ohio Rev. Code Ann. � 2913.02(B) (1996). In sum, the I.G. has shown that Petitioner was convicted for an offense which occurred after HIPAA's enactment in connection with the delivery of a health care item or service consisting of a felony relating to theft. The I.G. has shown by a preponderance of the evidence all elements required for exclusion under section 1128(a)(3) of the Act.

C. The length of exclusion for an offender under section 1128(a)(3) of the Act is mandatory and cannot be for less than five years.

Once an individual has been convicted of a criminal offense within the meaning of section 1128(a)(3) of the Act, exclusion from participation in Medicare, Medicaid, and all other federal health care programs for a minimum term of five years is mandatory. Act, section 1128(c)(3)(B). By reason of his conviction, Petitioner was subject to, and the I.G. was required to impose upon him, mandatory exclusion from participation in Medicare, Medicaid, and all other federal health care programs for a period of not less than five years. Id. The I.G.'s exclusion of Petitioner for the minimum mandatory period of five years is supported by fact and law, and is therefore reasonable and proper.

VI. Conclusion

For the foregoing reasons, I sustain Petitioner's exclusion from participation in Medicare, Medicaid, and all federal health care programs for a period of five years.

Anne E. Blair

Administrative Law Judge

1. Substances are placed in these categories when the United States Attorney General or, in this case, the Ohio State Board of Pharmacy, determines that the substance has a high degree of abuse potential. The higher the abuse potential, the lower the schedule. Schedule II drugs generally have at least one accepted medical use, and a high degree of abuse potential. Ohio Rev. Code Ann. � 3719.01(C) (1996).