*1 EISENBERG, D.O., Appellee, L. Irwin Pennsylvania, DEPARTMENT OF COMMONWEALTH WELFARE, Appellant. PUBLIC Supreme Pennsylvania.
Argued June
Decided Oct. *2 Baron, Harrisburg, appellant. for
Bruce G. Tolcott, for Abramson, Philadelphia, Michael B. B. Gilbert appellee. C.J., LARSEN, FLAHERTY, NIX,
Before HUTCHINSON, McDERMOTT, ZAPPALA and PAPADAKOS, JJ. THE OF COURT
OPINION HUTCHINSON, Justice. ap- (“Department”) Department of Public Welfare remanding order allowance Commonwealth
peals by to Eisenberg appellee against disciplinary proceeding this Depart- behalf. present him to allow right contractual current appellee’s ment terminated Medicaid benefits providing program in its participate ineligible reapply prefered provider him declared nolo contendere of his years for five on the basis status charges relating court to mail fraud to his federal program.1 the Medicaid participation warranting suspension under “conviction” considered need for further evidence. without regulation2 its held remanding, Commonwealth Court guilt not an admission of and there- plea was to hold hear- required evidentiary fore the hold that imposing penalties. imposition We ings before nolo contendere on the federal court’s sentence of the regulation. the applicable a “conviction” under constitutes However, correct we believe Commonwealth Court was must remanded to the holding that this case be regulation applica- the Department’s the version of because provide imposition this case does not for automatic ble to Therefore, is entitled to a petitioner on conviction. *3 penal- on what opportunity present and hearing Department before the appropriate to his conviction ty Thus, imposing penalty. discretion in exercises its Court as modified. the order of Commonwealth affirm Department formerly action as a Although characterized such the 1. provider the suspension, was in effect a termination of current it 1983, reapplication. coupled precluding In agreement with an order terminology Department changed to termination to reflect this. its Appellee prohibited participating in Pa.Bull. 3655. was also from 13 improper recordkeeping program years and the Medicaid for three for Department billing practices, years and for five because the federal suspended The Health and Human Services him from Medicare. 30, three-year prohibition began on October 1980. It was not contest- proceedings and is therefore not ed in the Commonwealth suspen- five-year prohibition on the federal before us. The state based began part proceeding period on sion was not of this below. That 12, terms, July By appellee participate cannot in Medicaid 1984. program reinstate him in the Medicare until the federal authorities 18, 1987, February prohibition when the based and in no event before order, expires. separate appeal conviction from that on the 1984, C.D. has been in Commonwealth Court at No. 2899 docketed five-year only on this record is the discontinued. issue charges. This appellee’s to the mail fraud based on 18, February period continues until (b)(3) (4). Appellee charged 1101.81 was under 55 Pa.Code — 1983, change and amended without substantial these subsections were 1101.77(a)(6)-(7). at Pa.Code § are now found 30, 1980, appel- informed September On preferred provid- from the Medicaid that he was banned lee recordkeep- of improper for three years er because program conducted a billing practices.3 ing this matter. Before the hearings peer review held charged hearing findings, appellee issued his examiner charges mail fraud4 and other related federal court with 3, February On program. the Medicaid in connection with plea. called an Under 1982, entered what is appellee for U.S. Alford, named North Carolina plea, (1970), pleads a defendant L.Ed.2d 162 91 S.Ct. facts. The contesting underlying still while plea. on the enters a of conviction judgment court then proceeding, learned of the federal After the to introduce reopen hearings it attempted to for further based on penalties It asked evidence. facts, and moved itself, underlying not the the conviction examiner, point. noting judgment on that summary procedure adminis- judgment no summary that there was the motion treated suspension, on license procedures trative against appellee. original charge as an amendment recom- The examiner were held. hearings No further motion, and the per sanctions mended ineligible for declared appellee Secretary Public Welfare his entered appellee from the date years five petition for review with filed prohibition based five-year The court vacated Court.5 due appellee’s It held charges. the mail fraud *4 matter, was held that prior In decision holding hearings. Common- impose without first able to this 530, wealth, Eisenberg, 454 Pa. v. 499 Public Welfare (1982). A.2d 513 § 4. 18 U.S.C. contract, this case though Department’s order terminated
5. Even Claims The Board of Court. properly in Commonwealth filed sought damages and the were jurisdiction because no no would have appel- preventing beyond period, the contract effect extended order’s 5, 1978, P.L. of October applying See Act for a new contract. lee from Larson, 615, 4651-4; 260, 3, 1104, Ezy 499 Pa. Parks v. 72 §P.S. No. (1982). A.2d 928 454
185 process rights were violated by not conducting any hearings on the charge. was granted leave to appeal by this Court.
The effect of a nolo contendere plea in Pennsylvania is concisely discussed in leading case of Commonwealth v. Ferguson, 44 Pa.Superior (1910): Ct. 626 contendere, of nolo
A plea when accepted court, by the is, in its upon effect equivalent to a plea of guilty. It is an implied confession guilt only, and against cannot be used the defendant as an admission in any civil suit for the same act. judgment of convic- upon tion follows plea such upon well as plea guilty.
44 Pa.Superior Ct. at 628. See also Buck v. Common
wealth,
(1885);
tion, arguing it was improperly imposed solely He argues that under our law the cannot be used proceeding, administrative which he *5 argument This proceeding.6 to a civil
says equivalent is in Court in rejected Commonwealth presented Board v. Fried- Examining Dental Council and State (1976). man, 27 Pa.Commonwealth Ct. There, stated: Commonwealth Court dealing to enforce are not here with civil suit
[W]e Rather, dealing are with an admin- rights. we individual out sovereign carry of the seeks to agency istrative which Commonwealth duty protect by its to the citizens of the It of its licensees. is the interests regulating the conduct impels many rather than the interest few which Board. same concerns are A.2d Because the at 366.
Id. at proceeding, Commonwealth in the instant obviously present with its rationale holding squarely conflicts Court’s suspension of a dental Friedman involved Friedman. prepared relating for mail fraud to false invoices license Here, li- professional while the insurance reimbursement. issue, ability participate is to itself not an cense However, the grounds. on the same challenged Medicaid is as a plea use the attempt here does not Rather, the convic- of the fact of fraud. admission judicial fact operative itself is the which upon plea tion entered it- evidence of the conviction This suspension. authorizes leading up plea, procedure is not affected self proceeding. administrative and it admissible plea that the properly held proceeding. in the instant could be used to how the remains as However, question proceeding. used to be and there plea is conclusive of the urges that evidence permitted. should be no fore rebuttal to show his introduce evidence he be allowed to asks that appropriate, which view In order to decide innocence. charge evidence of either is not A criminal nolo Ferguson, supra. later civil action. underlying facts in a or ultimate on the same act or corollary a civil action based that in It follows contesting transaction, denying precluded or pleader from is not the facts of transaction look at the carefully authorizing penalties. must *6 1011.81(b)(3)-(4). charged was under 55 Pa.Code § time, At that those sections read:
(b) Termination provider agreement. Depart- [T]he may agreement provider ment terminate its with a if ... it has that the provider ...
(3) Has been convicted of a Medicaid related criminal
Federal, State,
offense
by
as certified
a
or local court.
(4) Has
of a criminal
been convicted
offense under
relating
practice
State or Federal laws
of his
as certified
the court.7
profession
by
appellee agree
Both the
that
the crime
program.
involved related to the Medicaid
the only
plea
concern is whether the
of the
entry
constitutes
regulation.
a “conviction” under this
leading
One of the
federal cases on this
subject
Soko
Cir.1974).
Saxbe,
(2d
Section
for revocation a
that the
a
registrant
drug-related felony.
has been convicted of
this,
To
properly
establish
the Administrator
relied not
upon any
implied by
admission
[nolo
]
plea
upon
petitioner’s
but
the uncontested fact of
convic-
tion____
(or
rule)
Where,
here,
a statute
judicial
conviction,
to the fact of a
legal consequences
attaches
there is no
majority
of courts have held that
valid
upon
a
distinction between a conviction
nolo
guilty plea
a
after a
or trial.
contendere and
conviction
previously,
supra n.
these sections have been
7. As mentioned
see
change and can be found at 55 Pa.Code
amended without substantial
1101.77(a)(6)-(7).
original).
regulation
The
in
(emphasis
501 F.2d at
instant case is similar
the statute
Sokoloff.8
imposed
penalties may
states
be
regulation
... as certified
provider
where
“has been convicted
law,
judgment
...
Under our
conviction
Court.”
supra.
Ferguson,
nolo contendere
See
on a
entered
with the rea
language
of our
consonant
regulation’s
reference to the certi
soning
Sokoloff.
record fact
clearly implies
fication
a court
bare
of sentence or conviction is
be intro
judgment
of the
con
Here, although
an
duced.
was
tendere
copy
of sentence
plea,
judgment
certified
record. Reproduced
included in the administrative
*7
21a,
proof
This
all the
of conviction
Record
25a.
at
regulation,9
the
and it is conclusive
the
required by
Sokoloff, supra.
out in
conten
appellee’s
reasons set
of
introduce evidence
tion that he should be able to
meaning
the
plain
language
the
of
rejected
innocence
Department’s
regulation.
Although
sufficient
establish
regulation,
Department
violation of
applica
matter. The
holding
hearing
not
erred
336,
regulation,
at
states
quoted
ble
may
involving
In a case
impose penalties for conviction.
Lee v.
Young
J.
license,
lottery
of a
sales
suspension
Revenue,
Commonwealth,
Department of
367,
474
504 Pa.
did not
(1983),
language
that similar
A.2d 266
we noted
of
proof
or revocation on
conviction:
require suspension
Cir.1978);
(5th
Qureshi
Bensinger,
v.
also
v.
189 significant It is to note that the State Law Lottery [Act 1971, 351, 26, 91, August P.L. No. 72 P.S. 3761-1 to §§ does not mandate li- appellee’s revocation of 3761-15] Rather, the Secretary cense. of Revenue “may suspend if or revoke a it find applicant license ... shall or (1) licensee has been of crime involving convicted moral turpitude____” 5,
S.Ct. (1976) (termination L.Ed.2d 18 of disability benefits).
Therefore, acted improperly by imposing the five-year prohibition giving appellee without an opportu- nity present the appropriateness of the *8 for his conviction in federal court.11 The language Department sustantially changed regulation the this 10. on point. regulation provides: The current (b) Departmental provider’s termination the par- enrollment and of ticipation. (3) disciplinary Termination for criminal or conviction action shall be follows: (i) provider’s shall terminate a enrollment and years participation provider for if the is convicted of a ... crime____ related Medicare/Medicaid Thus, 1101.77(b)(3). regulations provide Pa.Code the § current no penalty. discretion as to brief, that, appellee argues given opportunity, In his the he would argued against prohibition five-year have a based on his of assertion court, service, community innocence in federal his record of loss the precludes imposition in this case applicable
of regulation must this hearing. a remand penalties of without proper a determination of for matter appellee. penalty imposable as mod- affirmed The order opinion. by ified this J., files
McDERMOTT, concurring opinion. a
JUDGMENT WHEREOF, it is ordered hereby ON CONSIDERATION Court that the Order the Common- this adjudged by Opinion. as modified is affirmed wealth Court OPINION CONCURRING McDERMOTT, Justice. a of a advantage except to all others may guilt contest his
defendant conviction, There he suffers pleads. he court which before others, sanc- appropriate to which all like all conviction regula- instant case had the In the may imposed. tions be ground alone was tion1 conviction provided revocation, be sufficient. under would conviction Hence, “shall”. I “may” and not however he heard. agree that is entitled be reluctantly action, the exist- community occasioned activity, already imposed penalties for the same other ence of allegations improper damages, the lack of level of minimal ruling not on what Appellee’s at While medical care. Brief hearing appellee the later evidence will be admissible at which, true, Depart- might persuade alleged grounds if well has impose penalty. ment to a lesser 1011.81(b)(3)-(4). 1. 55 Pa.Code