Peter Anyakora, M.D., CR No. 407 (1995)

$05:Exclusion Case

Department of Health and Human Services

DEPARTMENTAL APPEALS BOARD

Civil Remedies Division

In the Case of:

Peter Anyakora, M.D.,

Petitioner,

- v. -

The Inspector General.

DATE: December 15, 1995
Docket No. C-95-146
Decision No. CR407


DECISION

I conclude that Petitioner, Peter Anyakora, M.D., is subject to a
five-year minimum mandatory period of exclusion from participation
in the Medicare, Medicaid, Maternal and Child Health Services Block
Grant and Block Grants to States for Social Services programs. 1/


I. Procedural History

By letter dated January 24, 1995, the Inspector General (I.G.) of
the United States Department of Health and Human Services (DHHS)
notified Petitioner that he was being excluded for five years from
participation as a provider in Medicare and Medicaid. The I.G.
advised Petitioner that he was being excluded as a result of his
conviction of a criminal offense relating to neglect or abuse of
patients in connection with the delivery of a health care item or
service, and that the exclusion of individuals convicted of such
offenses is mandated by section 1128(a)(2) of the Social Security
Act (Act). 2/ The I.G. further advised Petitioner that, for
exclusions imposed pursuant to section 1128(a)(2), section
1128(c)(3)(B) of the Act mandates a five-year minimum period of
exclusion.

By letter dated June 10, 1995, Petitioner filed a request for
hearing. During prehearing conferences held on July 18 and 19,
1995, Petitioner requested an in-person hearing. During the
conferences, I noted that the issues in the case were limited only
to: 1) whether Petitioner was convicted of a criminal offense and,
if so, 2) whether the offense was related to neglect or abuse of
patients in connection with the delivery of a health care item or
service. Based on the parties' representations at the conferences,
it did not appear to me that there were disputed issues of fact
relevant to the issues in the case which would require an in-person
hearing. Instead, I determined that the case could be heard based
on a written record. Therefore, I denied Petitioner's request for
an in-person hearing and established a schedule for the parties to
file briefs and documentary evidence.

The I.G. filed a brief (I.G. Br.), including a statement
enumerating the material facts and conclusions of law the I.G.
considered to be uncontested. The I.G.'s brief was accompanied by
I.G. Exhibits (I.G. Exs.) 1 through 5. Petitioner responded with
a brief (P. Br.), accompanied by eight attachments he offers as
exhibits in the case. These attachments are not marked in
accordance with my Order of July 27, 1995. Petitioner marked only
the first attachment, which he termed "Exhibit A." The Petitioner
then filed a supplemental brief (P. Supp. Br.), accompanied by
Petitioner's exhibits (P. Exs.) 1 through 10. To avoid confusion
with Petitioner's supplemental submission, I have marked the
attachments accompanying Petitioner's initial brief as P. Exs. A
through H.

Petitioner has not objected to the admission into evidence of the
exhibits submitted by the I.G. The I.G. has not objected to the
admission into evidence of the exhibits submitted by Petitioner.
In the absence of objection, I admit into evidence I.G. Exs. 1
through 5, and P. Exs. A through H and 1 through 10.

After careful consideration of the briefs and documentary evidence
submitted by the parties, I conclude that there exist no facts of
decisional significance genuinely in dispute and that the only
matters to be decided are the legal implications of the undisputed
facts. Based on these facts, I conclude that Petitioner is subject
to the minimum mandatory exclusion provisions of sections
1128(a)(2) and 1128(c)(3)(B) of the Act. Accordingly, I affirm the
I.G.'s determination to exclude Petitioner from participation in
Medicare and Medicaid for a period of five years.


II. Issues

The issues are: 1) whether Petitioner was convicted of a criminal
offense under federal or State law; and 2) if Petitioner was so
convicted, whether the conviction relates to neglect or abuse of
patients in connection with the delivery of a health care item or
service.


III. Findings of Fact and Conclusions of Law

1. At all relevant times, Petitioner was a resident physician at
Harlem Hospital Center in New York, New York. Currently,
Petitioner is a medical doctor practicing in Florida. I. G. Ex. 1;
I.G. Ex. 3 at 3; P. Br. at 1.

2. On February 10, 1993, the State of New York filed a four-count
criminal indictment against Petitioner. I.G. Ex. 1.

3. The four counts of the indictment charged Petitioner with
offenses occurring from about September 22, 1991 to about February
28, 1992, during Petitioner's residency at Harlem Hospital Center
in New York. Specifically, Petitioner was charged with violating
public health law section 2805-b(2) (Count One), falsifying
business records in the first degree (Counts Two and Three), and
tampering with physical evidence (Count Four). I.G. Ex. 1.

4. Following a jury trial, Petitioner was convicted of all four
counts of the indictment. I.G. Exs. 4 - 5.

5. Count One of the indictment alleged that, on or about September
22, 1991, Petitioner refused to treat a person arriving at a
general hospital to receive emergency medical treatment who was in
need of such treatment. Count One alleged specifically that, while
employed as a resident physician, Petitioner refused to treat CB
3/, a woman who arrived at Harlem Hospital Center in need of
emergency medical assistance in the delivery of a child. I.G. Ex.
1.

6. Petitioner's conviction of Count One of the indictment
constitutes a conviction of a criminal offense. Act, sections
1128(a)(2), 1128(i)(1); Finding 4.

7. Petitioner's conviction of Count One of the indictment relates
directly to neglect of a patient in connection with the delivery of
a health care item or service. Act, section 1128(a)(2); Findings
4, 5.

8. The Secretary of DHHS (Secretary) has delegated to the I.G. the
authority to exclude individuals from participation in Medicare and
to direct their exclusion from participation in Medicaid. 48 Fed.
Reg. 21,662 (1983); 53 Fed. Reg. 12,993 (1988).

9. The I.G. is required to exclude Petitioner from participation
in Medicare and to direct his exclusion from participation in
Medicaid. Act, section 1128(a)(2).

10. The minimum period of exclusion pursuant to section 1128(a)(2)
is five years. Act, section 1128(c)(3)(B).

11. Neither the I.G. nor an administrative law judge has the
authority to reduce the five-year minimum exclusion mandated by
sections 1128(a)(2) and 1128(c)(3)(B) of the Act.


IV. Discussion

The I.G. excluded Petitioner from participation in Medicare and
directed that Petitioner be excluded from participation in
Medicaid, pursuant to section 1128(a)(2) of the Act. This section
mandates the exclusion of

[a]ny individual or entity that 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.

A. Petitioner has been convicted of a criminal offense.

I have found that Petitioner was convicted of refusing to treat a
person arriving at a general hospital to receive emergency medical
treatment who was in need of such treatment. Findings 2 - 5.
Petitioner's conviction falls within the meaning of section
1128(i)(1) of the Act, in that a judgment of conviction has been
entered against him by a State court. Thus, Petitioner has been
convicted of a criminal offense within the meaning of section
1128(a)(2) of the Act. Finding 6.

Petitioner does not dispute that he was convicted of a criminal
offense within the meaning of section 1128(i) of the Act. Instead,
Petitioner maintains that he should not have been convicted.
Petitioner maintains that he has never refused treatment to anyone.
P. Br. at 1. Petitioner asserts that Harlem Hospital Center
concluded that "[t]here was NO refusal of patient care but rather,
there was a delay due to overcrowding." P. Br. at 3. Petitioner
asserts further that there was no "medical Emergency with respect
to pregnant mother," CB. P. R. Br. at 1. Petitioner alleges that
there was a "coverup on the part of the prosecutor," and asserts
that his convictions are the result of "UNJUST PROSECUTION,
DISCRIMINATION, SCAPEGOATING, PROSECUTORS RECKLESS VIOLATION OF
HUMAN AND INDIVIDUAL RIGHTS UNDER THE CONSTITUTION, AND HIGH-TECH
LYNCHING." P. Br. at 3.

Petitioner's arguments are not persuasive. Petitioner may not
argue the merits of his criminal case in this administrative
proceeding. His arguments amount to an impermissible collateral
attack on his conviction. In this regard, an appellate panel of
the Departmental Appeals Board held in the case of Peter J.
Edmonson, DAB 1330 (1992):

[i]t is the fact of the conviction which causes theexclusion.
The law does not permit the Secretary tolook behind the conviction.
Instead, Congressintended the Secretary to exclude
potentiallyuntrustworthy individuals or entities based oncriminal
convictions. This provides protection forfederally funded programs
and their beneficiariesand recipients, without expending program
resourcesto duplicate existing criminal processes.

Id. at 4.

Further, the applicable regulations provide:

[w]hen the exclusion is based on the existence of a
conviction, . . . the basis for the underlying determination is not
reviewable and the individual or entity may not collaterally attack
the underlying determination, either on substantive or procedural
grounds. . .

42 C.F.R. 1001.2007(d).

The correct forum for Petitioner to have disputed the circumstances
of his criminal case is the State court in which he was charged
criminally. Paul R. Scollo, D.P.M., DAB 1498, at 14 (1994);
Francis Shaenboen, R.Ph., DAB 1249, at 9 (1991).

B. Petitioner's conviction is related to neglect 4/ of
patients in connection with the delivery of a health care item or
service.

Although the term neglect is not defined in section 1128(a)(2) of
the Act, a common and ordinary meaning of the term includes the
failure to satisfy a duty of care to another person. Lee G. Balos,
DAB CR378, at 7 (1995), aff'd, DAB 1541, at 4 (1995); see also
Summit Health Limited, dba Marina Convalescent Hospital, DAB 1173,
at 8 (1990); Janet Wallace, L.P.N., DAB 1326, at 10 (1992) (a
common meaning is "to fail to care for or attend to sufficiently").
Given the fact of his conviction, there can be no doubt that
Petitioner breached his duty of care to this patient. Petitioner's
criminal offense, refusing to treat a person arriving at a general
hospital to receive emergency medical treatment who was in need of
such treatment, on its face relates to neglect of a patient in
connection with the delivery of a health care item or service.
Thus, Petitioner's conviction relates to neglect of a patient in
connection with the delivery of a health care item or service
within the meaning of section 1128(a)(2) of the Act.

Petitioner contends, however, that his offense is not related to
neglect, within the meaning of section 1128(a)(2) of the Act. In
support of his contention, Petitioner alleges: 1) he was only a
resident physician, and the supervising attending physician, not
Petitioner, was responsible for making decisions regarding patient
care (P. Br. at 2); 2) he was responding to a medical emergency
pertaining to another patient (P. Br. at 3); 3) CB's emergency
status was precipitated after Petitioner first saw her, by EMS
personnel who used a scalpel to break her baby's bag of water (P.
Br. at 3); and 4) CB's companion terrorized and threatened
Petitioner, causing a delay in CB's evaluation. P. Supp. Br. at 2
- 3.

Petitioner's allegations, even if true, do not alter my conclusion
that his conviction is related to the neglect of patients in
connection with the delivery of a health care item or service.
Petitioner's allegations amount to an impermissible collateral
attack on his conviction and are not relevant to my determination
that his conviction is related to neglect of patients in connection
with the delivery of a health care item or service. See Scollo,
DAB 1498, at 14; Shaenboen, DAB 1249, at 9.

Petitioner argues also that no neglect occurred because neither CB
nor her baby suffered physical harm. However, no actual harm is
required for a conviction to relate to neglect of patients. Balos,
DAB 1541, at 6.

C. Neither the I.G. nor an administrative law judge has
the discretion to exclude Petitioner for less than the mandatory
minimum period of five years.

After careful review of the record, I conclude that the I.G.
properly classified Petitioner's conviction of the enumerated
criminal offenses as falling under the mandatory exclusion
authority of section 1128(a)(2) of the Act. The law requires that
Petitioner be excluded for at least five years. Act, section
1128(c)(3)(B).

Once a section 1128(a)(2) violation is established, neither the
I.G. nor an administrative law judge has any discretion to exclude
a provider for less than the minimum mandatory period of five
years. Balos, DAB 1541, at 7.

D. Other arguments advanced by Petitioner do not
persuade me that I have the authority either to
conclude that there was no basis for
Petitioner's exclusion or to change the
effective date of Petitioner's exclusion.

Petitioner alleges that he did not receive notice of the exclusion
the I.G. imposed and directed against him on January 24, 1995,
until his employer in Florida, the Women's Health Center of Hardee
County, informed him that requests for Medicaid reimbursement for
his services were being denied. June 10, 1995 Request for Hearing;
July 27, 1995 Order and Schedule for Filing Briefs and Documentary
Evidence; P. Supp. Br. at 1. The record reflects that the letter
notifying Petitioner of his exclusion is dated January 24, 1995.
The notice letter was addressed to Petitioner and was mailed to a
post office box in Baltimore, Maryland. Petitioner alleges that
this post office box has never been connected to him. Petitioner
alleges also that he has been residing in Florida since November
1993. P. Supp. Br. at 1. For the purposes of this decision, I
accept Petitioner's allegations as true.

Based on this lack of notice, Petitioner argues that he has been
denied due process under the United States Constitution, because he
was excluded before receiving notice of his exclusion. Petitioner
appears to argue further that, because his exclusion is
unconstitutional, he should not be excluded at all. I do not have
the authority to decide the constitutional validity of an exclusion
imposed and directed in accordance with the Act and regulations.
Balos, DAB 1541, at 9; Shanti Jain, M.D., DAB 1398, at 7 (1993).
Moreover, the Act and regulations do not entitle Petitioner to a
pre-exclusion hearing. The Act and regulations give Petitioner
only the right to request a hearing on the issue of whether there
is a basis for his exclusion. 42 C.F.R. 1001.2007. I have
afforded Petitioner the hearing (based on the written record)
contemplated by the Act and regulations.

Petitioner appears to argue also that if, in fact, he must be
excluded, his exclusion should not have become effective until
after he received notice of the exclusion. I do not have the
authority to alter the effective date of an exclusion imposed and
directed in accordance with the Act and regulations. 42 C.F.R.
1005.4(c); Samuel W. Chang, M.D., DAB 1198, at 9 - 11 (1990); Jain,
DAB 1398 (1993); Kathleen M. Casey, DAB CR401 (1995).


V. Conclusion

The I.G. properly imposed and directed against Petitioner a
five-year minimum mandatory period of exclusion from participation
in Medicare and Medicaid.


Jill S. Clifton
Administrative Law Judge

1. Unless otherwise indicated, hereafter I refer to all
programs from which Petitioner has been excluded, other than
Medicare, as "Medicaid."

2. Those parts of the Act discussed herein are codified in 42
U.S.C. 1320a-7.

3. To preserve this woman's privacy, I refer to her by her
initials only.

4. Petitioner's offense relates to neglect. I do not find that
Petitioner's offense relates to abuse.