SUBJECT:

Layfe Robert Anthony, M.D.,

Petitioner,

The Inspector General.

DECISION

I sustain the determination of the Inspector General (I.G.) to exclude Petitioner, Layfe Robert Anthony, M.D., from participating in Medicare or other federally funded health care programs for a period of five years. Petitioner's exclusion is mandatory because he was convicted of a criminal offense relating to neglect or abuse of patients in connection with the delivery of a health care item or service, within the meaning of section 1128(a)(2) of the Social Security Act (Act).

I. Background

Petitioner is a physician who practices medicine in the State of Utah. On March 31, 2004, the I.G. notified Petitioner that he was being excluded from participation in Medicare and other federally funded health care programs for a period of five years. The I.G. told Petitioner that his exclusion was due to his being convicted in a Utah court of a criminal offense related to patient neglect or abuse in connection with the delivery of a health care item or service.

Petitioner requested a hearing, and the case was assigned to me for a hearing and a decision. After holding a pre-hearing conference by telephone, I established a schedule for the parties to file briefs and proposed exhibits addressing the merits of the case. The I.G. filed a brief and six proposed exhibits (I.G. Exhibit (Ex.) 1 - I.G. Ex. 6). Petitioner then filed an opposing brief without offering exhibits. Petitioner did not object to my receiving into evidence any of the I.G.'s exhibits and, therefore, I receive I.G. Ex. 1 - I.G. Ex. 6. Petitioner then requested an oral argument. I granted Petitioner's request and heard oral argument by telephone on October 15, 2004.

II. Issues, findings of fact and conclusions of law

A. Issues

The issues in this case are whether:

1. A decision is appropriate at this time;

2. The I.G. must exclude Petitioner because Petitioner was convicted of a criminal offense relating to patient neglect or abuse in connection with the delivery of a health care item or service;

3. Exclusion of Petitioner for at least five years is required by law; and

4. I may hear and decide Petitioner's argument that section 1128(a)(2) was applied to Petitioner's case in an unconstitutional manner.

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. It is appropriate to decide this case at this time.

It is appropriate that I decide this case now without conducting further proceedings. Petitioner has not established a basis for me to hold an in-person hearing for the purpose of receiving additional evidence. The evidence that is relevant to deciding this case is contained entirely within the exhibits that were submitted by the I.G. Petitioner made no showing that he possesses additional relevant evidence.

In this case the I.G. offered evidence relating to Petitioner's criminal conviction by a Utah court. The evidence includes documents that were received by the court in connection with a no contest plea that Petitioner made in response to a charge of negligent homicide. I.G. Ex. 3 - I.G. Ex. 5. As I discuss below, at Finding 2, the court documents describe the elements of the crime of which Petitioner was convicted.

Petitioner does not dispute that I.G. Ex. 3 - I.G. Ex. 5 were received by the Utah court in connection with Petitioner's conviction. Nor does he dispute the accuracy or genuineness of the exhibits' contents. Rather, Petitioner asserts that additional proceedings are necessary in this case because Petitioner's "conduct did not amount to neglect of a patient as that terminology was intended in the . . . [Act]." Petitioner's Brief at 3.

Petitioner expands on this argument by asserting that allegedly extremely relevant facts remain in dispute. According to Petitioner, there remains open the issue of whether he actually breached a standard of patient care in delivering health care services to the patient whose death is the basis for Petitioner's conviction of negligent homicide. Petitioner's Brief at 4. Petitioner denies that his no contest plea amounts to an admission of liability. Petitioner argues that he must have an evidentiary hearing in order to be able to contest whether he actually violated an appropriate standard of care. He suggests that, at such a hearing, the I.G. would be obligated to offer evidence - which Petitioner could challenge or rebut - establishing the appropriate standard of care, its breach, and proximate cause. He likens this case to one of medical malpractice and asserts that the I.G., having the burden of proof, should be expected to produce expert testimony on the issues of standard of care and breach of the standard of care. Id. at 4 - 5.

I do not find this argument to be persuasive. In effect, Petitioner would like to look behind his conviction and litigate the issue of whether he actually committed an act of criminal neglect in his practice of medicine. But, the law clearly proscribes consideration of this issue.

This case is not about whether Petitioner violated a standard of care, nor whether he admitted such a violation, nor whether Petitioner actually engaged in conduct that falls within the generally used meaning of the terms "neglect" and "abuse." All that is at issue here is whether Petitioner was convicted of an offense that relates to patient neglect or abuse as is described by section 1128(a)(2). If Petitioner was convicted of such an offense then the I.G. must exclude him. If he was not convicted of such an offense then the I.G. has no authority to exclude him.

It is irrelevant, for purposes of deciding whether an exclusion is authorized by section 1128(a)(2), to decide whether the excluded individual actually engaged in conduct that would constitute patient neglect or abuse under state or federal law. Section 1128(a)(2) specifically mandates that the I.G. exclude any 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.

(Emphasis added). The plain meaning of this section is that the authority to exclude derives from an individual's conviction of a criminal offense falling within the section's purview. The authority to exclude does not derive from the conduct that underlies the conviction.

Not only is Petitioner's argument made irrelevant by the explicit wording of section 1128(a)(2), but it also is made so by the legal principle encompassed in regulations that an excluded party may not challenge the I.G.'s authority to exclude, where the authority is derived from a conviction for an offense, by contesting the facts upon which that party's conviction is based. This principle is stated succinctly at 42 C.F.R. � 1001.2007(d):

When the exclusion is based on the existence of a criminal conviction . . ., the basis for the underlying conviction . . . , is not reviewable and the individual or entity may not collaterally attack it either on substantive or procedural grounds . . . .

See Joanne Fletcher Cash, DAB No. 1725 (2000); Chander Kachoria, DAB No. 1380 (1993).

The I.G.'s counsel initially characterized her brief and exhibits as a motion for summary affirmation of the exclusion determination. Subsequently, the I.G. correctly recognized that this characterization was inaccurate and withdrew the designation. Summary judgment is always appropriate in a case where there are no genuinely disputed issues of material fact. Here, however, it is unnecessary that I address the issue of whether summary judgment is appropriate. The evidence that the I.G. offered is the sole relevant evidence that either side has offered or proposed to offer that addresses the question of whether Petitioner was convicted of a neglect or abuse related offense within the meaning of section 1128(a)(2). It is appropriate that I decide this case now simply because no additional relevant evidence has been offered.

2. The I.G. must exclude Petitioner because Petitioner was convicted of a criminal offense relating to patient neglect or abuse in connection with the delivery of a health care item or service.

The evidence establishes that Petitioner was convicted of a criminal offense falling within the purview of section 1128(a)(2) of the Act. Consequently, the I.G. must exclude Petitioner.

On January 25, 2002, an amended criminal Information was issued in the Fifth District Court of Washington County, State of Utah, charging Petitioner with one count of negligent homicide. I.G. Ex. 4. The Information alleged, specifically, that Petitioner:

acting with criminal negligence, caused the death of another, . . . in violation of Section 76-5-206, Utah Code Annotated, 1953, as amended.

Id. ⁽¹⁾ On February 4, 2002, Petitioner entered a no contest plea to the Information and the plea was accepted by the court. I.G. Ex. 3. In entering his plea Petitioner filed a statement in which he averred that he was not contesting that he had committed the crime of negligent homicide. Id. at 2. Specifically, Petitioner averred that he did not contest facts that established a factual basis for his no contest plea. These facts consist of the following:

� . . . [Petitioner] performed an in-office liposuction procedure on decedent . . . [S.W.] on November 9, 1999.

� After the procedure, . . . [Petitioner] prescribed Lortab and Phenergan for post-operative pain and nausea.

� . . . [S.W.], escorted by her husband, left . . . [Petitioner's] office on the afternoon of November 9, 1999 and returned directly to her home in Bunkerville, Nevada.

� As a result of a job-related accident, . . . [S.W.'s husband] had previously been prescribed a medication for headaches at . . . [a clinic] . . . The pills were a sedating medication and had the effect of putting . . . [S.W.'s husband] to sleep.

� . . . [S.W.] experienced post-surgical pain from the 9^th of November until the 11^th of November, 1999, the day she died. She refused to leave the house.

� As a result of the pain, . . . [S.W.] had a conversation with . . . [Petitioner] on November 10, 1999 and . . . [Petitioner] agreed to provide her some additional pain medication, which could be administered through a syringe by her husband. The medication provided was pain medication, Stadol and an anti-nausea medication.

� A detective who testified at . . . [Petitioner's] preliminary hearing stated that . . . [Petitioner] told him that since . . . [S.W.] refused to see him and refused to go to a hospital, he offered to have her husband provide a pain medication with a syringe.

� In the early evening of November 10, 1999, . . . [S.W.'s husband] met . . . [Petitioner] at his office and was given a syringe with some medication for . . . [S.W.].

� Later on that evening at approximately 10:00 p.m., . . .[S.W.'s husband] administered the medication that was in the syringe to . . . [S.W.].

� During the early morning hours of November 11, 1999, . . . [S.W.] would doze on-and-off in her bedroom. She was conscious at times and able to communicate with her husband.

� At about 11:30 a.m. on November 11, 1999 . . . [S.W.'s husband] decided to take a nap and slept for approximately 1� hours. After he woke, he went into the bedroom to check on his wife and determined that she was dead, confirmed a few hours later by the Clark County Coroner's office.

� An investigation ensued, an autopsy was performed, and it was determined that . . . [S.W.] had the presence of Hydrocodone, Stadol, and Amitriptyline, an antidepressant drug not prescribed by . . . [Petitioner], in her system at the time of her death.

� The coroner who performed the autopsy testified at the preliminary hearing that the cause of death was the toxic combination of Hydrocodone and Stadol, although he could not rule out to any medical certainty that the cause of death was a combination of these drugs, plus Amitriptyline.

� A day or so after . . . [S.W.'s] death, an investigator from the Clark County Coroner's Office came to . . . [S.W.'s] house and re-interviewed . . . [S.W.'s husband]. At that time . . . [S.W.'s husband] stated to the investigator that S.W. had been taking the . . . [sedative previously prescribed to S.W.'s husband] for pain since her surgery and that she had taken the last of the medication they had.

� An expert medical witness for the State testified at the preliminary hearing that . . . [Petitioner] breached the applicable standard of care in the prescribing of Stadol, because Stadol is a drug that should be given where the patient can be monitored and that to give someone such a medication administered by a layperson "without knowing what their physical status was, what their blood pressure was, what their respirations were, what the pulse is, their fluid, electrolytes, all those other things and simply just give them that, . . . is something that is just not done."

Id. at 2 - 3.

The facts which Petitioner did not contest establish plainly that his conviction is for a crime relating to neglect or abuse of a patient in connection with the delivery of a health care item or service. The uncontested facts establish that S.W. was Petitioner's patient. They establish also that S.W.'s death was connected to Petitioner's providing Stadol to S.W. as an aspect of the care that Petitioner gave to this individual. Finally, they establish conduct which comprises criminal neglect of a patient within the meaning of section 1128(a)(2).

The plain meaning of "neglect" in section 1128(a)(2) encompasses an act by a health care provider that is criminally negligent or which criminally violates applicable standards of professional care. In this case, the negligent homicide charge against Petitioner is essentially that his care of S.W. was a criminal violation of a standard of care. The Information rests on the allegation that Petitioner provided Stadol to S.W. without ensuring that S.W. would be monitored and without adequate knowledge of S.W.'s physical status at the time that the Stadol was administered to her.

I emphasize that, for purposes of establishing the I.G.'s authority to exclude Petitioner, it is irrelevant whether Petitioner actually contravened an applicable standard of care. I have explained at Finding 1 of this decision that the authority to exclude derives from Petitioner's conviction of a crime that is based on an allegation that he contravened an applicable standard of care. For that reason, I do not address the issue of whether any of Petitioner's actual conduct contravened a standard of professional care.

Petitioner argues that, in fact, Congress intended the word "neglect" in section 1128(a)(2) to have a narrower meaning than its plain meaning. According to Petitioner, the Act was intended to address practitioners who have been found to be incompetent or unfit to provide care. Petitioner's Brief at 11 - 14. He seems to suggest that a specific allegation of incompetence or unfitness to provide care is a necessary element of a section 1128(a)(2) offense. Petitioner argues that no such allegation, much less a finding of incompetence or unfitness, was made in his case. Moreover, according to Petitioner, the fact that the State of Utah has not revoked or suspended his professional license is affirmative proof that the State continues to find him fit to engage in the practice of medicine. This asserted finding of fitness, according to Petitioner, makes it clear that his conviction was not for "neglect" of a patient.

I find this argument to be unpersuasive. As I discuss above, the meaning of section 1128(a)(2) is plain. It is not necessary to resort to legislative history to discern what the word "neglect" means in the section. Plainly, the word encompasses a conviction of a criminal offense that is premised on a physician's failure to comply with an applicable standard of care. The fact that Petitioner was charged with a crime means that, in the eyes of prosecuting authorities, he did far more than commit a simple practice error or make an isolated mistake in providing care. The charge signified that Petitioner's alleged transgression of a standard of care was so egregious as to rise to the level of a criminal offense. Petitioner's no contest plea to that charge and the court's acceptance of that plea is a conviction of the charge and the rationale that underlies it.

The fact that the State of Utah may not have revoked or suspended Petitioner's professional license is irrelevant. Independent grounds would exist to exclude Petitioner under section 1128(b)(4) of the Act had the State sanctioned Petitioner. But, section 1128(a)(2) provides a basis for exclusion that is independent from that which is provided at section 1128(b)(4). The I.G.'s authority to exclude Petitioner derives from his conviction of a crime that falls within the reach of section 1128(a)(2), whether or not the State took action against Petitioner's license. ⁽²⁾

3. An exclusion of at least five years is required by law.

Section 1128(c)(3)(B) of the Act mandates that any individual who is excluded pursuant to section 1128(a)(2), among other sections, be excluded for a period of at least five years. The exclusion that the I.G. imposed in this case - five years - is for the minimum period that is required by law.

4. I have no authority to hear and decide Petitioner's additional arguments.

Petitioner makes additional arguments concerning the constitutionality of section 1128(a)(2) as it has been applied by the I.G. Petitioner's Brief at 6 - 9. However, and as Petitioner concedes, I have no authority to hear and decide these arguments and, consequently, I do not consider them.

Steven T. Kessel

Administrative Law Judge

1. The Information recited the name of the victim of Petitioner's alleged crime. I refer to that individual as "S.W." in this decision.

2. Section 1128(a)(2) mandates exclusion for an abuse or neglect-related crime whereas section 1128(b)(4) permits exclusion for loss of a professional license. Although the two sections are independent, the mandatory exclusion requirement of section 1128(a)(2) trumps any permissive exclusion provision contained elsewhere in the Act.