SUBJECT:

Victoria L. Winterhalter,

Petitioner,

The Inspector General

DECISION

I sustain the determination by the Inspector General (I.G.) to exclude Petitioner, Victoria L. Winterhalter, from participating in Medicare and other federally funded programs for a period of five years. I do so because the I.G. proved by a preponderance of the evidence that Petitioner was convicted, within the meaning of section 1128(a)(4) of the Social Security Act (Act), of a felony relating to the unlawful manufacture, distribution, prescription, or dispensing of a controlled substance.

I. Background and undisputed facts

The facts of this case are not in dispute. These facts are described in exhibits filed by the I.G. (I.G. Ex. 1 - I.G. Ex. 4) and Petitioner (P. Ex. A) which I am receiving into evidence in the absence of any objection from the parties.

Petitioner is a registered nurse and certified nurse anesthetist who practiced in the State of Ohio. On April 9, 2001, Petitioner was indicted by a grand jury in the Court of Common Pleas of Hamilton County in the State of Ohio (court). I.G. Ex. 2. The indictment charged Petitioner with four felony counts of theft of drugs and four counts of tampering with drugs. Id.; I.G. Ex. 4, at 1. On August 16, 2001, Petitioner entered a guilty plea to the indictment. I.G. Ex. 3. The court found that Petitioner was eligible for intervention in lieu of conviction under Ohio State law. Id. at 1. It directed that Petitioner be placed in a supervised rehabilitation program. Id. ⁽¹⁾

On May 30, 2003, the I.G. notified Petitioner that she was excluded from participating in Medicare and other federally funded programs for a period of five years. The I.G. based the determination on Petitioner's alleged conviction of felony offenses as are described at section 1128(a)(4) of the Act.

On June 13, 2003, the court granted a motion by Petitioner to dismiss the criminal case against Petitioner, to expunge the record of Petitioner's criminal case, and to terminate Petitioner's probation. In doing so, the court ruled that Petitioner had successfully completed her court-ordered rehabilitation. P. Ex. A.

Petitioner requested a hearing and the case was assigned to me for a hearing and a decision. I held a pre-hearing conference by telephone at which the parties agreed that the case could be heard and decided based on their written submissions. I established a schedule by which the parties could submit their proposed exhibits and arguments and the parties complied with this schedule.

II. Issues, findings of fact and conclusions of law

A. Issue

There are potentially two issues which I am authorized to hear and decide in this case. These are: whether Petitioner was "convicted," within the meaning of section 1128(i) of the Act, of a criminal offense under Ohio law; and whether any offense of which Petitioner was convicted falls within the meaning of section 1128(a)(4) of the Act. ⁽²⁾ However, Petitioner has not denied that her offenses - assuming that she was convicted of anything - fit the definition of offenses that are covered by section 1128(a)(4). Rather, Petitioner argues that she was not "convicted" of criminal offenses. For that reason I do not address in this decision the potential issue of whether Petitioner's offenses are covered by section 1128(a)(4). ⁽³⁾

B. Findings of fact and conclusions of law

I make findings of fact and conclusions of law (Findings) to support my decision in this case. I set forth each Finding below as a separate heading. I discuss each Finding in detail.

1. Petitioner was "convicted," within the meaning of section 1128(i) of the Act, of a criminal offense under Ohio law.

The purpose of section 1128 is remedial. Congress concluded that individuals who were convicted of certain enumerated criminal offenses or who engaged in other conduct that is defined at section 1128 were, as a matter of law, untrustworthy to provide care to beneficiaries and recipients of federally funded programs and it empowered (or, in the case of offenses described by section 1128(a), mandated) the I.G. to exclude those individuals from participating in Medicare and other federally funded programs.

In large measure the I.G.'s authority to exclude an individual under section 1128 derives from that individual's conviction of one of the offenses that are enumerated in the section. Congress plainly wanted the I.G. to be able to exclude an individual by relying on the fact that criminal proceedings resulted in a determination that is adverse to the individual. Moreover, in enacting section 1128 Congress concluded that the I.G.'s derivative exclusion authority should not be precluded in circumstances where an individual is allowed by prosecuting authorities to enter into a plea arrangement other than a simple plea of guilty. From Congress' perspective a person who enters into an alternate disposition of a criminal charge in lieu of simply pleading guilty to that charge may nevertheless be untrustworthy and may merit exclusion as a remedial measure. Thus, Congress defined "conviction" very broadly.

Section 1128(i) defines a "conviction" to be:

(1) when a judgment of conviction has been entered . . . 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 . . . by a Federal, State, or local court;

(3) when a plea of guilty or nolo contendere . . . has been accepted by a Federal, State, or local court; or

(4) when . . . [the excluded individual] has entered into participation in a first offender, deferred adjudication, or other arrangement or program where judgment of conviction has been withheld.

The undisputed facts establish that Petitioner was "convicted" within the meaning of both subsections (3) and (4) of section 1128(i).

First, a court accepted a plea of guilty from Petitioner consistent with the requirements of section 1128(i)(3). The undisputed facts are that Petitioner entered a guilty plea to the eight felony charges that were filed against her. I.G. Ex. 3. In finding Petitioner to be eligible for intervention in lieu of conviction, the court accepted Petitioner's plea. Section 2941.041(C) of the Ohio Revised Code provides that:

[i]f the court finds . . . that the offender is eligible for intervention in lieu of conviction and grants the offender's request [for intervention], the court shall accept the offender's plea of guilty . . . .

Second, Petitioner's entry into intervention in lieu of a conviction constituted entry into participation in a first offender, deferred adjudication, or other arrangement or program where judgment of conviction has been withheld consistent with the requirements of section 1128(i)(4). Section 1128(i)(4) was intended to address programs under Federal or State law in which an offender enters a provisional guilty or nolo contendere plea. In such programs the plea may be dismissed contingent upon successful cooperation with law enforcement authorities or upon completion of a rehabilitation program. And, in such programs, failure to comply with the terms established by the court may lead to the imposition of criminal penalties without adjudication of the underlying charges.

Here, Petitioner entered into precisely the type of program that Congress sought to include in its definition of a conviction at section 1128(i)(4). The court's order made it plain that dismissal of Petitioner's plea would be contingent upon Petitioner's successful completion of a rehabilitation program. I.G. Ex. 3, at 1. It explicitly stayed imposition of the conviction pending completion of the program and it contained reporting requirements to assure that Petitioner remained compliant with her rehabilitation program. Id., at 1 - 2. Although the court's order does not say so explicitly, it is evident that the court would have enforced a judgment of conviction against Petitioner and imposed criminal sanctions against her had she failed to complete the rehabilitation program.

Petitioner argues that under Ohio law her participation and completion of an intervention program in lieu of adjudication is not a "deferred adjudication." As support for this argument Petitioner cites to section 2951.041 of the Ohio Revised Code, which states in part that:

Successful completion of . . . [an] 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 . . . .

Petitioner notes that she successfully completed her intervention program and that, as a consequence, the court dismissed her indictment and expunged her criminal record. P. Ex. A.

I do not find this argument to be persuasive. The plain language of section 295.041 of the Ohio Revised Code describes an arrangement or program where a judgment of conviction has been withheld as is defined by section 1128(i)(4) of the Act. ⁽⁴⁾

Section 1128(i)(4) was written to encompass programs where rehabilitation in lieu of a final adjudication of guilt is the objective. The significant fact for purposes of deciding whether Petitioner was convicted within the meaning of section 1128(i)(4) is her entry into an intervention program and not her successful completion of that program. That she pleaded guilty and entered into a program where final adjudication would be held in abeyance pending her successful completion of the program is sufficient to establish the existence of a conviction. Of course, Petitioner's failure to complete the intervention program successfully would have led to the imposition of criminal penalties against her. But, the fact that she completed the program successfully is irrelevant to the definition of conviction which is at play under section 1128(i)(4).

Petitioner contends that the legislative history of section 1128 of the Act establishes that Congress wrote section 1128(i)(4) only to cover first offender and deferred adjudication dispositions in cases that involved financial crimes against Medicare. Petitioner's brief at 6 - 7. Thus, according to Petitioner, the type of deferred adjudication that Petitioner entered into - in a case involving substance abuse and no program fraud - simply is beyond the purview of the Act.

Petitioner's argument is without merit. First, the plain language of section 1128(i)(4) does not differentiate cases of program fraud from cases of substance abuse. There is no need here to resort to legislative history to interpret the Act because the meaning of section 1128(i)(4) is unambiguous. On its face it applies to convictions for all types of offenses and not simply to convictions of program fraud. Second, the legislative history relied on by Petitioner addresses a version of the Act that was enacted by Congress in 1986. H.R. Rep. No. 99-727, at 68 (1986), reprinted in 1986 U.S.C.C.A.N. 3607, 3658. The Act has been amended numerous times since 1986 and section 1128(a)(4) was not added until later. The kinds of offenses for which a person may be convicted and which are covered by the exclusion provisions of the Act increased with each amendment after the 1986 enactment. It was unnecessary for Congress to qualify its definition of conviction with each subsequent broadening of the reach of the Act in order for that definition to apply to the newly added crimes.

2. I do not have authority to decide whether the ADA precludes the I.G. from excluding Petitioner.

I am not authorized to decide whether provisions of the ADA preclude the I.G. from excluding Petitioner. My authority to adjudicate cases involving exclusions imposed pursuant to section 1128 of the Act derives solely from regulations that are published at 42 C.F.R. Parts 1001 and 1005. Nothing in those regulations suggests that I am authorized to limit the reach of section 1128 based on its interaction with other federal statutes.

Having said that, I note that to limit the reach of section 1128 as advocated by Petitioner would potentially render meaningless a significant aspect of the section's remedial purpose. Section 1128 is intended to protect program beneficiaries and recipients from untrustworthy individuals. There is nothing in section 1128 to suggest that an otherwise untrustworthy individual should be excepted from the Act's remedial reach because that person is arguably eligible for some protection under the ADA. Congress could have carved out an exception to section 1128(a)(4) for individuals whose substance abuse was the product of a disability. It did not do so.

The I.G. argues that its exclusion authority is exempt from the ADA because federal executive agencies do not constitute "public entities" as defined by the ADA. Additionally, the I.G. contends that Petitioner does not meet the ADA's definition of an "individual with a disability" because Petitioner does not meet the Rehabilitation Act's definition of such an individual due to her unlawful use of drugs at the time that she committed the felonies to which she pled guilty. See 29 U.S.C. § 705(20)(C)(i). While these arguments may have merit I do not reach them here because the Secretary has not delegated the authority to me to decide whether the I.G.'s exclusion authority is limited by the ADA.

Steven T. Kessel

Administrative Law Judge

1. Additionally, on November 13, 2001, Petitioner entered into a consent agreement with the Ohio Board of Nursing which suspended her license to practice nursing in Ohio. I.G. Ex. 4.

2. The reasonableness of the length of the exclusion imposed by the I.G., assuming that the I.G. is authorized to impose an exclusion, is not at issue inasmuch as the I.G. imposed the minimum mandatory exclusion of five years. See Act, section 1128(c)(3)(B).

3. Additionally, Petitioner argues that the I.G. may not exclude her because she is a "qualified individual with disability" as is defined by the Americans with Disabilities Act (ADA). Below, I explain why I do not have authority to order the I.G. to take into account the requirements of the ADA in determining whether or not to exclude Petitioner.

4. My conclusion here is in accord with another administrative law judge decision which also addresses the significance of a plea made pursuant to section 2951.041 of the Ohio Revised Code. Handel J. Roberts, DAB CR911 (2002).