Funmilola Mary Taiwo, DAB No. 2995 (2020)

FINAL DECISION ON REVIEW OF ADMINISTRATIVE LAW JUDGE DECISION

Funmilola Mary Taiwo (Petitioner) appeals a decision by an Administrative Law Judge (ALJ) upholding the Inspector General’s (I.G.) exclusion of Petitioner from participation in all federal health care programs for a period of five years.  Funmilola Mary Taiwo, DAB CR5498 (2019) (ALJ Decision).  The ALJ concluded that the I.G. properly excluded Petitioner based on her conviction for a criminal offense related to neglect or abuse of patients in connection with the delivery of a health care item or service, pursuant to section 1128(a)(2) of the Social Security Act (Act), which requires a minimum exclusion period of five years (Act § 1128(c)(3)(B)).  

For the reasons set out below, we reject Petitioner’s arguments and affirm the ALJ’s decision.

Legal Background

Section 1128(a)(2) of the Act provides that the Secretary of Health and Human Services “shall exclude” from participation in federal health care programs an individual who “has been convicted, under Federal or State law, of a criminal offense relating to neglect or abuse of patients in connection with the delivery of a health care item or service.” 

An individual is considered to be “convicted” of a criminal offense when:  (1) a judgment of conviction has been entered against the individual 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) there has been a finding of guilt against the individual by a federal, state, or local court; (3) a plea of guilty or no contest by the individual has been accepted by a federal, state, or local court; or (4) the individual has entered into participation in a first offender, deferred adjudication, or other arrangement or program where judgment of conviction has been withheld.  Act § 1128(i); 42 C.F.R. § 1001.2.

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When an exclusion is imposed under section 1128(a), section 1128(c)(3)(B) requires that the “minimum period of exclusion . . . be not less than five years . . . .”  An excluded individual may request a hearing before an ALJ, but only on the issues of whether the I.G. had a basis for the exclusion and whether an exclusion longer than the mandatory minimum period is unreasonable in light of any of the aggravating and mitigating factors specified in the regulations that apply to the case before the ALJ.  42 C.F.R. §§ 1001.2007(a), 1005.2(a).  A party dissatisfied with the ALJ’s decision (to which 42 C.F.R. § 1005.20 refers as the “initial decision”) may appeal it to the Board.  Id. § 1005.21.

Case Background1

Petitioner was a supervising nurse at a New York nursing facility.  ALJ Decision at 1, 2.  On June 24, 2015, the State of New York issued a criminal complaint alleging that Petitioner “neglected to render care” to a resident “as required by the standards of her profession.”  I.G. Ex. 2, at 2.  Subsequently, in a May 18, 2016 indictment, Petitioner was charged with one felony count of Endangering the Welfare of an Incompetent or Physically Disabled Person in the First Degree in violation of New York Penal Law (NYPL) § 260.25, one misdemeanor count of Willful Violation of Health Laws (Willful Health Violation) in violation of New York Public Health Law (NYPHL) §§ 12-b(2) and 2803-d(7), and one misdemeanor count of Falsifying Business Records in the First Degree in violation of New York Public Health Law § 175.10.  ALJ Decision at 3 (citing I.G. Ex. 3). 

On January 31, 2017, Petitioner entered a guilty plea to the misdemeanor count of Willful Health Violation, and to a new count of Disorderly Conduct, a violation of NYPL § 240.20.  Id.; I.G. Ex. 4.  In pleading guilty, Petitioner expressly admitted “to an act of negligen[ce] by failing to provide [a resident] with timely, consistent, safe, adequate and appropriate services, treatment and care[.]”  ALJ Decision at 3; I.G. Ex. 4, at 8.  As part of Petitioner’s plea, she agreed to complete a twelve-week elder abuse program and refrain from providing nursing or home health care to any persons aged 60 and above for one full year.  ALJ Decision at 3; I.G. Ex. 4, at 3-8.  If Petitioner met those conditions, her misdemeanor conviction of Willful Heath Violation would be “dismissed” and she would be sentenced to a $250 fine and a conditional discharge for the Disorderly Conduct violation.  ALJ Decision at 3; I.G. Ex. 4, at 8.  If she failed to meet those conditions, Petitioner’s misdemeanor conviction would remain and she would be sentenced to a maximum of one year incarceration.  ALJ Decision at 3; I.G. Ex. 4, at 9.

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On January 31, 2018, the court determined that Petitioner satisfied the terms of her conditional plea agreement.  Petitioner’s misdemeanor plea was “vacated,” and she was sentenced to a conditional discharge and $250 fine for the Disorderly Conduct violation.  ALJ Decision at 3; I.G. Ex. 5.

By letter dated June 28, 2019, the I.G. notified Petitioner that, pursuant to section 1128(a)(2) of the Act, she was being excluded from Medicare, Medicaid, and all federal health care programs for a minimum period of five years due to her conviction “in the Queens County Supreme Court of the State of New York, of a criminal offense related to neglect or abuse of patients, in connection with the delivery of a health care item or service . . . .”  I.G. Ex. 1, at 1; ALJ Decision at 2.  Petitioner filed a timely request for an ALJ hearing.  Id.  The parties submitted briefs along with exhibits to which neither party objected.  Neither sought to cross-examine any witness.

Petitioner argued that she was not convicted of a crime within the meaning of Act § 1128(a)(2) because her conviction of Willful Health Violation was vacated pursuant to the terms of her plea deal.  Pet. Informal Br. at 3-4.  Petitioner asserted that she only stood convicted of Disorderly Conduct, NYPL § 240.20, which “is a ‘violation’ of the law and not a ‘crime,’ not constituting either a felony or misdemeanor.”  Id. at 4.  Petitioner argued that her conviction did not relate to neglect or abuse of a patient because “there is no subsection under” NYPL § 240.20 that relates to “patient neglect or abuse.”  Id. at 5-6.  Petitioner also asserted that the I.G. delayed her exclusion, and argued that the period of time between the date of her incident and the date that the I.G. served its exclusion letter was “unwarranted, unreasonable, and should result [in] bar[ring] the exclusion sought by the I.G.”  Id. at 6.  

ALJ Decision

In a decision issued on the written record, the ALJ affirmed the I.G.’s determination to exclude Petitioner from all federal health care programs for five years in accordance with section 1128(a)(2) of the Act.  The ALJ admitted the parties’ exhibits, and noted that the parties agreed that an in-person hearing was not necessary.  ALJ Decision at 2.  The ALJ then concluded that “Petitioner must be excluded from program participation for a minimum of five years because she 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.”  Id. (citing Act § 1128(a)(2)) (emphasis removed).  

In reaching her conclusions, the ALJ rejected Petitioner’s argument that she was not convicted of a crime within the meaning of section 1128(a)(2) for two reasons.  Id. at 4.  First, the ALJ found, “a vacated conviction is nevertheless a conviction” within the meaning of section 1128 as applicable here.  The ALJ explained:

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The statute and regulations provide that a person is “convicted” when a “judgment of conviction has been entered” regardless of whether that judgment has been (or could be) expunged or otherwise removed.  Act § 1128(i)(1); 42 C.F.R. § 1001.2(a)(2)).  Individuals who participate in “deferred adjudication or other programs or arrangement[s] where judgment of conviction has been withheld” are also “convicted” within the meaning of the statute.  Act § 1128(i)(4); 42 C.F.R. § 1001.2(d)). 

Id.  The ALJ observed that the Board has previously held that a “conviction” includes “diverted, deferred and expunged convictions regardless of whether state law treats such actions as a conviction[.]”  Id. (quoting 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)).  Second, the ALJ found that the I.G. “reasonably considers” Petitioner’s disorderly conduct conviction a “criminal offense” under section 1128 “because the violation is defined in the New York Penal Law . . . .”  Id. (citing cases).  Moreover, the ALJ found that the “facts underlying Petitioner’s conviction establish that it was related to neglect.”  Id.; see also id. at 5 (“Given Petitioner’s admission in open court, there is no doubt that her disorderly conduct conviction stemmed from her neglecting a very ill nursing home patient.”).    

Regarding Petitioner’s argument that the I.G. delayed her exclusion, the ALJ concluded that she has “no authority to change the effective date of the exclusion.”  Id. at 5.  The ALJ also determined that she “may not review the timing of the [I.G.]’s determination to impose an exclusion or alter retroactively its effective date.”  Id. (citing, inter alia, Sushil Aniruddh Sheth, M.D., DAB No. 2491, at 18-19 (2012)). 

Standard of Review

Our standard of review of an exclusion imposed by the I.G. is established by regulation. We review a disputed issue of fact as to “whether the initial decision is supported by substantial evidence on the whole record.”  42 C.F.R. § 1005.21(h).  We review a disputed issue of law as to “whether the initial decision is erroneous.”  Id.

Analysis

Petitioner raises four issues on appeal.  Notice of Appeal (NA) at 2.  First, Petitioner argues that she does not stand “convicted” of Willful Health Violation because her guilty plea was vacated pursuant to the terms of her plea deal.  Id. at 6-7.  Second, Petitioner argues that the only offense of which she remains convicted, Disorderly Conduct, cannot serve as a basis for exclusion under section 1128(a)(2) because the violation was not related to the neglect or abuse of a patient in connection with the delivery of a health care item or service.  Id. at 7-8.  Third, Petitioner argues that the exclusion violates her constitutional due process rights.  Id. at 8-10.  Fourth, Petitioner argues that the duration of her exclusion is “excessive.”  Id. at 11-12.

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As we explain below, we reject Petitioner’s arguments and conclude that the ALJ’s decision is supported by substantial evidence and free of legal error.  In Section I, we address whether the I.G. had a valid legal basis to exclude Petitioner under section 1128(a)(2) of the Act.  In Section II, we address Petitioner’s constitutional arguments, which we conclude go beyond the scope of this appeal.  We therefore affirm the ALJ’s ultimate conclusion that a 5‑year exclusion is warranted.

I.   The I.G. had a valid legal basis to exclude Petitioner under Act § 1128(a)(2) based on her January 31, 2017 conviction. 

A. Petitioner was convicted of a criminal offense within the meaning of the Act.

For the purpose of exclusion, a person “is considered to have been ‘convicted of a criminal offense’ if any one of the four subsections” under Act § 1128(i) are met.  Nenice Marie Andrews, DAB No. 2656, at 4 (2015).  Subsections (3) and (4) provide that a person is convicted “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.”  Act § 1128(i)(3)-(4).  Based on the evidence of record, both subsection (3) and (4) were satisfied under the terms of Petitioner’s plea deal.  The judicial records submitted by the I.G. show that Petitioner consented to an arrangement under which she pleaded guilty to Willful Health Violation and Disorderly Conduct, an unclassified misdemeanor and violation, respectively.  I.G. Ex. 4, at 6-10.  The court accepted her guilty plea and deferred sentencing for a year.  Id.  At the sentencing hearing, the court “vacated”2 Petitioner’s Willful Health Violation guilty plea because she complied with the terms of her plea deal, and sentenced Petitioner for the Disorderly Conduct violation.  I.G. Exs. 5, 6.  Accordingly, Petitioner entered a guilty plea that was accepted by the state court, satisfying subsection (3).  Petitioner also entered into an “arrangement” in which her judgment of conviction was withheld, meeting the elements of subsection (4).

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We reject Petitioner’s argument that “vacating” her Willful Health Violation guilty plea negates her “conviction” under the Act.  See NA at 6-7.3   The regulations provide an avenue for reinstatement into the Medicare, Medicaid, and other federal health care programs when an exclusion is based on “a conviction that is reversed or vacated on appeal[.]”  42 C.F.R. § 1001.3005(a)(1).  Notably, neither the Act nor regulations provide the same relief for individuals whose guilty pleas are vacated pursuant to the terms and conditions of a plea deal.  The Act’s legislative history provides context here: 

With respect to convictions that are ‘expunged,’ the Committee intends to include all instances of conviction which are removed from the criminal record of an individual for any reason other than the vacating of the conviction itself, e.g., a conviction which is vacated on appeal.  The Committee wishes to emphasize that, if a conviction is overturned or vacated on appeal, the individual can no longer be excluded from the Medicare and Medicaid programs (unless, of course, he or she has been excluded on grounds independent of such conviction).

H.R. Rep. No. 99-727, at 75 (1986), reprinted in 1986 U.S.C.C.A.N. 3607, 3665; see also the Board’s discussion in Gupton at 7-8 (“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.”).  Thus, while a conviction that has been vacated on appeal (e.g., on the merits) can no longer serve as a basis for exclusion under the statute, the same does not apply to all other instances in which the conviction is removed from the criminal record, as it is the criminal act itself that impugns the integrity and trustworthiness of an individual regardless of any remedial measures taken pursuant to a plea arrangement.  Put another way, exclusion under section 1128(a)(2) is derivative of the conviction as defined by the Act, not the ultimate judgment of conviction imposed by a state or federal court.   

Here, Petitioner’s Willful Health Violation conviction was not vacated on appeal but as part of Petitioner’s conditional plea deal.  Petitioner attempts to differentiate her “vacated” guilty plea from an “expunged” conviction, but we find no substantive difference in this situation for the purpose of the exclusion statute.  Petitioner’s vacated plea is analogous to a post-conviction expungement such as is provided in some state first-offender diversion programs, which the Board has long held qualifies as a conviction

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under the Act.  See Gupton at 8 (“[C]onviction is to be understood very broadly as including even situations where the judgment has been expunged, where a finding of guilt or a plea of guilty or no contest has been accepted by a court . . . and where a diversion arrangement of some kind permits the person to avoid entry of judgment against them.”); Michael S. Rudman, M.D., DAB No. 2171, at 6-7 (2008) (affirming the ALJ’s finding that the appellant had been convicted when he was sentenced under a deferred adjudication arrangement whereby judgment of conviction was withheld), aff’d, Rudman v. Leavitt, 578 F. Supp.2d 812 (D. Md. 2008).  

Additionally, Petitioner provides no evidence or authority for us to draw an inference that that the two and a half year “delay” between Petitioner’s January 31, 2017 conviction and the I.G.’s June 28, 2019 exclusion letter demonstrates that the I.G. does not “consider the vacated plea to be a conviction.”  NA at 8.  The applicable law does not guarantee prompt notice of or prompt action on exclusions, nor do we have the authority to review the timeliness of the I.G.’s imposition of an exclusion.  Seide v. Shalala, 31 F. Supp. 2d 466, 469 (E.D. Pa. 1998) (“Neither the Social Security Act nor its implementing regulations set any deadline within which the Inspector General must act.”), affirming Charles Seide, DAB CR525 (1998)); Kailash C. Singhvi, M.D., DAB No. 2138, at 5-7 (2007) (“[T]he ALJ and this Board do not have the authority to review the I.G.’s decision on when to impose the exclusion (including the decision to exclude Petitioner some eight months after he was sentenced), and may not grant Petitioner the essentially equitable relief he seeks.”), aff’d, Kailash C. Singhvi, M.D. v. Inspector General Dep’t of Health & Human Servs., No. CV08-0659 (SJF) (E.D. N.Y. Sept. 21, 2009). 

In sum, the ALJ did not err in determining that Petitioner was “convicted” for the purpose of the exclusion under section 1128(a)(2). 

B. Petitioner’s criminal offense(s) related to the neglect of a patient in connection with the delivery of a health care item or service. 

Petitioner challenges the ALJ’s finding that the “facts underlying Petitioner’s conviction establish that it was related to neglect.”  ALJ Decision at 4, 5.  Petitioner argues that there is “no evidence” showing that she “committed any type of neglect.”  NA at 7.  Petitioner asserts that the criminal complaint relied on by the I.G. “is not evidence, but instead mere allegations.”  Id.  Petitioner contends that while the complaint alleges that she “failed to render care” to an injured resident, she actually “did render care by directing her staff members to take action, and by ensuring that 9-1-1 was called so that the patient could be transported to the hospital.”  Id. at 7-8.  Petitioner also observes that, in regards to her Disorderly Conduct violation, “[n]one of the sections of N.Y. Penal Law § 240.20 pertain to patient care or health care at all.”  Id. at 7.

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When determining whether a criminal offense provides a valid basis to exclude under section 1128(a)(2), ALJ’s are not limited to considering the bare elements or labels of the criminal statutes under which the individual was convicted.  Summit S. Shah, DAB No. 2836, at 7 (2017) (“The Board has long held . . . that an ALJ is free to look beyond the narrow constructs of a state’s criminal statutes.”); Narendra M. Patel, DAB No. 1736, at 10 (2000) (Congress did not intend to limit the I.G.’s exclusion authority through “dependence on the vagaries of state criminal law definitions or record development”), aff’d, Patel v. Thompson, 319 F.3d 1317 (11th Cir. 2003), cert. denied, 539 U.S. 959 (2003); Berton Siegel, D.O., DAB No. 1467, at 4 (1994) (“[I]t is not the labeling of the offense under the state statute which determines whether the offense is program-related”).  Rather, ALJ’s may look at “evidence as to the nature of an offense” such as “facts upon which the conviction was predicated.”  Id.; Patel at 10 (“[T]he conviction is not required to be for patient neglect or abuse, but rather the circumstances that surrounded the actual offense need only show a relation to the neglect or abuse of a patient”); Rudman at 9 (an ALJ may consider “evidence regarding the nature of the offense, rather than the state’s labeling of the admitted offense, to determine whether it involved conduct warranting exclusion”).  The ALJ in this case was therefore not limited to looking solely at the New York Penal Law provisions under which Petitioner was convicted, but was free to consider evidence of the facts upon which Petitioner’s conviction was based. 

Contrary to Petitioner’s assertions, the evidence of record – including the criminal complaint and the facts stipulated to in Petitioner’s plea – plainly establish that both criminal offenses related to the neglect of a patient.  Petitioner’s criminal complaint alleged that on October 23, 2014, a resident who suffered from “dementia, altered mental status, and a host of serious physical ailments,” “emerged from his room, crawling on his back along the floor and bleeding profusely from open wounds to the back of his head and his jaw.”  ALJ Decision at 2; I.G. Ex. 2, at 1-2.  The complaint alleged that Petitioner “was present and observed” the resident, but “neglected to render care . . . as required by the standards of her profession.”  Id. at 2.  The complaint also alleged that Petitioner did not treat the resident’s “open wounds, thereby acting in a manner likely to be injurious to the physical, mental, or moral welfare” of the resident.”  Id.  Petitioner does not dispute that this fact pattern formed the basis for the subsequent indictment brought against her, including the Willful Health Violation charge.  Nor does Petitioner show that the Disorderly Conduct violation – added as part of her plea agreement – emanated from facts different from those found in the complaint.  Moreover, in pleading guilty to both charges, Petitioner admitted to “subjecting” the resident “to an act of negligen[ce] by failing to provide that person with timely, consistent, safe, adequate and appropriate services, treatment and care[.]”  I.G. Ex. 4, at 8.  We do not have the authority to review the basis for Petitioner’s conviction – nor does Petitioner have the ability to collaterally attack her conviction – and we therefore must accept these stipulated facts as true.  42 C.F.R. § 1001.2007(d); Delores L Knight, DAB No. 2945, at 7 (2019).

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Accordingly, we conclude that substantial evidence supports the ALJ’s finding that Petitioner’s criminal offenses related to patient neglect in connection with the delivery of a health care item or service.     

II.   Petitioner’s constitutional arguments are meritless.

The only issue before the ALJ in an appeal of a mandatory exclusion for a period of five years is whether “[t]he basis for the imposition of the sanction exists . . . .”  42 C.F.R. § 1001.2007(a)(1).  Petitioner makes several constitutional arguments that go beyond the scope of this narrow issue, which we reject.

Petitioner argues that the exclusion violates her due process rights under the Fifth Amendment.  NA at 8.  Regarding substantive due process, Petitioner contends that she has a property interest in continuing to participate in the Medicare and Medicaid programs.  Id.  Petitioner asserts that she has a liberty interest in protecting her “reputation, good name, honor, and integrity,” which will be implicated because she will carry the “stigma” of being placed on the I.G.’s exclusion list.  Id. at 9.  Petitioner further argues that her “procedural due process rights” were violated because “she was not informed of the potential exclusion” prior to entering her plea.  Id. at 10.

Petitioner also invokes the Eighth Amendment in arguing that a five-year exclusion period is “excessive” and “disproportionate” to her criminal offenses.  Id. at 11.  Petitioner asserts that her misconduct is minor in comparison to other individuals who have violated the law, and that “a blanket mandatory exclusion for any conviction” is not “narrowly drawn to achieve” the government’s “legitimate interest in protecting beneficiaries of its health programs from incompetent practitioners and inappropriate or inadequate care.”  Id. at 9.  Petitioner objects that she is not able to present evidence of “mitigating factors” to reduce the exclusion period.  Id. at 10.  Petitioner asserts that she “is a mother of three school-aged children, a founder of a charitable organization, an ordained minister, and a community activist . . . .”  Id.  Petitioner also notes that “she has already faced numerous sanctions, participated in continuing education . . . [and] suffered a pregnancy miscarriage as a result of all the stress sustained from this incident.”  Id. at 11. 

ALJs and the Board do “not have the authority to . . . [f]ind invalid or refuse to follow Federal statutes or regulations[.]”  42 C.F.R. § 1005.4(c)(1).  The Board has previously found that similar contentions, i.e., that an exclusion mandated by law would violate an individual’s constitutional rights under the Fifth and Eighth Amendments, “constitute an attack upon the Act and regulations on which neither the ALJ nor the Board may rule.”  W. Scott Harkonen, M.D., DAB No. 2485, at 22 (2012), aff’d, Harkonen v. Sebelius, No. C 13-0071 PJH, 2013 WL 5734918 (N.D. Cal. Oct. 22, 2013); see also Valentine Okonkwo, DAB No. 2832, at 5 (2017) (“Petitioner’s challenge on constitutional grounds is effectively a way of asking us to overturn or refuse to implement [the exclusion

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statute’s] provisions, which we are not permitted to do”).  Thus, the Board has no authority to decide the constitutional questions raised by Petitioner here.  See Aiman M. Hamdan, M.D., DAB No. 2955, at 9 (2019). 

We note, moreover, that Federal courts and this Board have repeatedly rejected constitutional challenges to the I.G.’s exclusion authority.  For example, courts and the Board have held that exclusions under section 1128 are “civil and remedial rather than criminal and punitive,” and are therefore not subject to Eighth amendment implications.  Sheth at 17-18 (quoting Jeremy Robinson, DAB No. 1905, at 4 n.4 (2004)); Harkonen at 22 (citing, inter alia, Manocchio v. Kusserow, 961 F.2d 1539, 1543 (11th Cir. 1992) (holding that exclusions are remedial, not punitive); Greene v. Sullivan, 731 F. Supp. 838, 840 (E.D. Tenn. 1990) (rejecting an excluded pharmacist’s due process arguments)).  The Board has also observed that “federal courts have rejected claims that the Secretary’s exclusion procedures amount to a deprivation of due process, finding no constitutionally-protected property or liberty interests.”  Id. (and cited cases).  Petitioner cites to two appellate court cases to support her assertion that a provider has a constitutionally protected property interest in continued participation in the Medicare and Medicaid programs.  NA at 8 (citing Patchogue Nursing Home v. Bowen, 797 F.2d 1137 (2d Cir. 1986), and Parrino v. Dept. of Health & Human Servs, 655 Fed.Appx. 399, 403 (6th Cir. 2016)).  We observe, however, that since Patchogue was issued, the Second Circuit has questioned whether providers have a property interest in continued participation in federal health care programs.  See Senape v. Constantino, 936 F.2d 687, 690-91 (2d Cir. 1991).  In addition, Parrino was an appeal of a criminal case that raised the issue of whether the defendant, a pharmacist, received ineffective counsel because his attorney allegedly did not inform him that his conviction could serve as a basis for exclusion.  The 6th Circuit held that the defendant was not deprived of effective counsel, and did not even address the issue of a constitutional property interest.  Subsequently, in an appeal of Parrino’s exclusion, the 6th Circuit held that the pharmacist had no protected property or liberty interest in continuing to participate in federal health care programs.  Parrino v. Price, 869 F.3d 392, 397-98 (6th Cir. 2017).  In any event, “[c]ourts that have considered the issue have almost without exception concluded that a physician or other health care practitioner or entity does not have a protected interest in continuing eligibility for Medicare participation or reimbursement.”  Francis J. Cinelli, Sr., D.O., DAB No. 2834, at 11 n.16 (2017).  Along with the 6th Circuit, at least four other circuits have determined that participation in the Medicare program is not a constitutionally protected property interest.  See Lilia Gorovits, M.D., P.C., DAB No. 2985, at 18 n.7 (2020) (citing Shah v. Azar, 920 F.3d 987, 997-998 (5th Cir. 2019); Erickson v. U.S. ex rel. Dep’t of Health & Human Servs., 67 F.3d 858, 862 (9th Cir. 1995); Koerpel v. Heckler, 797 F.2d 858, 863–65 (10th Cir. 1986); Cervoni v. Sec’y of Health, Ed. & Welfare, 581 F.2d 1010, 1018–19 (1st Cir. 1978)), appeal docketed, Gorovits v. Azar, No. 2:20-cv-01850 (E.D. Pa. Apr. 9, 2020).  Moreover, to the extent that Petitioner’s procedural due process challenge amounts to a collateral attack on her conviction in the Supreme Court of New York, we note that such challenges are impermissible in this forum.  42 C.F.R. § 1005.4(c)(1).

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Petitioner’s argument that the five-year exclusion period is excessive is equally unavailing.  Under the governing authority, the minimum period for an exclusion action imposed under section 1128(a)(2) is five years, and neither the ALJ nor Board have the ability to reduce an exclusion to a shorter duration.  Act § 1128(c)(3)(B); 42 C.F.R. §§ 1001.102(a), 1005.4(c)(1).  The ability of the I.G. to apply section 1128(a)(2) to an individual who has committed a more egregious offense does not affect whether the I.G. had a valid basis to exclude Petitioner under the statute in this instance.  Benny R. Bailey, DAB No. 2935, at 10 (2019) (finding that the “I.G.’s enforcement action against . . . any other individual . . . has no bearing on whether the I.G. had a valid basis to exclude Petitioner under section 1128(a)(3) in this circumstance”), appeal docketed, Bailey v. Azar, No. 1:19-cv-01721 (D.D.C. June 13, 2019).  Furthermore, as Petitioner herself acknowledges, there is no provision in the applicable authority that allows an excluded individual to present evidence of mitigating factors when the I.G. has set the exclusion period at five years.  See NA at 10; Olandis Moore, DAB No. 2963, at 7 (2019) (“Neither an ALJ nor the Board may overturn a lawful mandatory exclusion, or reduce it below the statutory five-year minimum, based on character references, evidence of future employability, or other alleged mitigating factors”) (citing Ioni D. Sisodia, M.D., DAB No. 2224, at 7 (2008)).  Petitioner’s arguments essentially amount to a request for equitable relief, which we have no authority to grant.  Matthew J. Girardy, DMD, DAB No. 2987, at 7 (2020) (“To the extent Petitioner's request for reduction of the exclusion period may be construed as a request for equitable relief, the Board is bound to follow the exclusion authorities and cannot sit in equity”) (citing Rita Patel, DAB No. 2884, at 7 (2018) (The Board “does not have the power to decline to apply a regulation based on equity alone.”), appeal dismissed, Patel v. Sec’y United States Dep’t of Health & Human Servs., No. 2:19-cv-08925 (D.N.J. Mar. 3, 2020)).

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Conclusion

For the reasons stated above, we affirm the ALJ Decision.

1. The factual information in this section is drawn from the ALJ Decision and the record and is presented to provide a context for the discussion of the issues raised on appeal. Nothing in this section is intended to replace, modify, or supplement the ALJ’s findings of fact.
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2. At Petitioner’s plea hearing, the court stated that if Petitioner complied with the terms of her plea deal, “eventually the misdemeanor will be dismissed . . . .”  I.G. Ex. 4, at 8.  At Petitioner’s sentencing hearing, the court stated that the plea to her misdemeanor was vacated.  I.G. Ex. 5, at 3.  The ALJ and parties have characterized the court’s action as vacating Petitioner’s conviction.  We need not wade into these potential inconsistencies insomuch as we conclude that the elements of conviction under Act § 1128(i) were satisfied by Petitioner’s plea arrangement.  Whether characterized as dismissing, vacating, or expunging, the trial court acceptance of Petitioner’s arrangement clearly did not involve the conviction being reversed or overturned on appeal.
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3. Even if we were to conclude that vacating Petitioner’s Willful Health Violation guilty plea negated Petitioner’s “conviction” under the Act, which we do not, Petitioner remained convicted of Disorderly Conduct, which by itself provided a sufficient basis for the I.G. to exclude Petitioner under section 1128(a)(2), having arisen from the same facts relating to her failure to treat a patient in need.
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