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IRWIN L. EISENBERG v. COMMONWEALTH PENNSYLVANIA (10/16/86)

decided: October 16, 1986.

IRWIN L. EISENBERG, D.O., APPELLEE,
v.
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF PUBLIC WELFARE, APPELLANT



Appeal from Orders of Commonwealth Court Dated January 25, 1985 Denying Reargument of Order Dated December 11, 1984 at No. 1565 C.D. 1982. 86 Pa. Commonwealth Ct. 358, Nix, C.j., and Larsen, Flaherty, McDermott, Hutchinson, Zappala and Papadakos, JJ. McDermott, J., files a concurring opinion.

Author: Hutchinson

[ 512 Pa. Page 182]

OPINION OF THE COURT

The Department of Public Welfare ("Department") appeals by allowance a Commonwealth Court order remanding this disciplinary proceeding against appellee Eisenberg to allow him to present evidence on his behalf. The Department terminated appellee's current contractual right to participate in its program of providing Medicaid benefits

[ 512 Pa. Page 183]

    and declared him ineligible to reapply for preferred provider status for five years on the basis of his nolo contendere plea in federal court to mail fraud charges relating to his participation in the Medicaid program.*fn1 The Department considered this a "conviction" warranting suspension under its regulation*fn2 without need for further evidence.

In remanding, Commonwealth Court held that the nolo contendere plea was not an admission of guilt and therefore the Department was required to hold evidentiary hearings before imposing its penalties. We hold that imposition of the federal court's sentence on the nolo contendere plea constitutes a "conviction" under the applicable regulation. However, we believe Commonwealth Court was correct in holding that this case must be remanded to the Department because the version of the Department's regulation applicable to this case does not provide for automatic imposition of penalty on conviction. Therefore, petitioner is entitled to a hearing and opportunity to present evidence on what penalty is appropriate to his conviction before the Department exercises its discretion in imposing a penalty. Thus, we affirm the order of Commonwealth Court as modified.

[ 512 Pa. Page 184]

On September 30, 1980, the Department informed appellee that he was banned from the Medicaid preferred provider program for three years because of improper recordkeeping and billing practices.*fn3 The Department conducted a peer review and held hearings in this matter. Before the hearing examiner issued his findings, appellee was charged in federal court with mail fraud*fn4 and other related charges in connection with the Medicaid program. On February 3, 1982, appellee entered what is called an Alford plea. Under that plea, named for North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970), a defendant pleads nolo contendere while still contesting the underlying facts. The court then enters a judgment of conviction on the plea.

After the Department learned of the federal proceeding, it attempted to reopen the hearings to introduce the Alford plea as evidence. It asked for further penalties based on the conviction itself, not the underlying facts, and moved for summary judgment on that point. The examiner, noting that there was no summary judgment procedure in administrative procedures on license suspension, treated the motion as an amendment to the original charge against appellee. No further hearings were held. The examiner recommended sanctions per the Department's motion, and the Secretary of Public Welfare declared appellee ineligible for five years from the date appellee entered his plea.

Appellee filed a petition for review with Commonwealth Court.*fn5 The court vacated the five-year prohibition based on the mail fraud charges. It held that appellee's due

[ 512 Pa. Page 185]

    process rights were violated by not conducting any hearings on the charge. The Department was granted leave to appeal by this Court.

The effect of a nolo contendere plea in Pennsylvania is concisely discussed in the leading case of Commonwealth v. ...


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