Breton Lee MORGAN, M.D., Plaintiff-Appellant, v. Kathleen SEBELIUS, Secretary of Department of Health and Human Services, Defendant-Appellee.
No. 10-2270
United States Court of Appeals, Fourth Circuit
Argued: May 17, 2012. Decided: June 14, 2012.
681 F.3d 582
Before TRAXLER, Chief Judge, and MOTZ and KEENAN, Circuit Judges.
OPINION
PER CURIAM:
Breton Lee Morgan appeals a district court order dismissing his action challenging the decision of the Secretary of the United States Department of Health and Human Services (“the Secretary“) to exclude him for five years from participating in Medicare, Medicaid, and all other federally sponsored health care programs pursuant to the applicable terms of
I.
Morgan is a physician licensed to practice medicine in West Virginia. In March 2007, he pled guilty to one count of violating
On May 30, 2008, the Inspector General (“I.G.“) of the Department of Health and Human Services (“HHS“) wrote Morgan, notifying him that he would be excluded for five years from participating in Medicare, Medicaid, and all other federal health-care programs pursuant to the applicable terms of
Morgan appealed the I.G.‘s decision in a proceeding before an Administrative Law Judge (“ALJ“) in HHS‘s Departmental Appeals Board (“DAB“) Civil Remedies Division. The ALJ found that the I.G. had a sufficient basis to exclude Morgan and that the five-year term of the exclusion
Morgan then appealed the ALJ‘s decision to the DAB Appellate Division on April 3, 2009. In his proceeding before the Appeals Board (the “Board“), Morgan argued, as is relevant here, that to warrant an exclusion under
Morgan subsequently brought an action in federal district court, asserting that the Board erred in failing to recognize that
II.
Reiterating his argument that
“We review questions of statutory construction de novo.” Orquera v. Ashcroft, 357 F.3d 413, 418 (4th Cir. 2003). Because the Secretary is charged with administering
Under Chevron‘s first step, we “employ[] traditional tools of statutory construction” in considering whether Congress addressed “the precise question at issue.” Chevron, 467 U.S. at 842, 843 n. 9, 104 S.Ct. 2778. In doing so, “we begin with the text and structure of the statute.” National Elec. Mfrs. Ass‘n v. United States Dep‘t of Energy, 654 F.3d 496, 504 (4th Cir. 2011).
Congress required the Secretary to exclude from participation in federal health-care programs any person who has been convicted of an offense “in connection with the delivery of a health care item or service” if that “offense consist[s] of a felony relating to fraud, theft, embezzlement, breach of fiduciary responsibility, or other financial misconduct.”
The applicable language makes clear that to warrant mandatory exclusion, an offense need only relate to at least one of five categories: (1) fraud, (2) theft, (3) embezzlement, (4) breach of fiduciary responsibility, or (5) other financial misconduct. The argument that the presence of the fifth category, “other financial misconduct,” somehow narrows the meaning of “fraud” from its ordinary usage is unpersuasive. See Carbon Fuel Co. v. USX Corp., 100 F.3d 1124, 1133 (4th Cir. 1996) (explaining that unless there is “explicit legislative intent to the contrary,” we must give words in a statute their “plain and ordinary meaning“). Morgan maintains that if the presence of the word “other” did not have this narrowing effect, “there would be no reason to have the word ‘other’ in the statute.” Appellant‘s brief at 11. But that is simply not correct. That the fifth category is “other financial misconduct” reflects the fact that the other four categories can, themselves, relate to financial misconduct. In this way, the presence of “other” eliminates the possible confusion that could have resulted from a statute that applied to “embezzlement ... or financial misconduct.”
In fact, it is Morgan‘s interpretation that would render much of the language surplusage. See Gustafson v. Alloyd Co., 513 U.S. 561, 574, 115 S.Ct. 1061, 131 L.Ed.2d 1 (1995) (explaining that a court should “avoid a reading which renders some words altogether redundant“). Had Congress intended that an offense must relate to financial misconduct for the mandatory exclusion to apply, then it could have omitted the terms “fraud,” “theft,” “embezzlement,” and “breach of fiduciary responsibility” and simply required the exclusion for offenses “relating to financial misconduct.”
Furthermore, Morgan‘s interpretation would not serve the statute‘s purposes. See, e.g., United States Nat‘l Bank of Oregon v. Independent Ins. Agents of Am., Inc., 508 U.S. 439, 455, 113 S.Ct. 2173, 124 L.Ed.2d 402 (1993) (explaining that “[i]n expounding a statute, we must not be guided by a single sentence or member of a sentence, but look to the provisions of the whole law, and to its object and policy” (internal quotation marks omitted)). Congress enacted the Health Insurance Portability and Accountability Act of 1996 (“HIPAA“), of which
Finally, it is worth noting that the Senate Report that accompanied the statute as originally enacted described the provision as applying to “a criminal offense relating to fraud, theft, embezzlement, breach of fiduciary responsibility or financial abuse.” S.Rep. No. 100-109, at 6 (1987), reprinted in 1987 U.S.C.C.A.N. 682, 687; see National Elec. Mfrs. Ass‘n, 654 F.3d at 504-05 (“[W]e have described legislative history as one of the traditional tools of interpretation to be consulted at Chevron‘s step one.“). Considering that the word “other” did not even appear in the description, there was no suggestion that Congress intended that “fraud” would have anything other than its ordinary meaning.
For all of these reasons, we hold that regardless of whether the district court correctly concluded that the statute unambiguously does not require that any fraud relate to financial misconduct in order to warrant the mandatory five-year exclusion, the Secretary‘s construction was, at the very least, a permissible one to which we must defer.
Finding no error, we affirm the district court‘s dismissal of Morgan‘s case.
AFFIRMED