Nwaokocha v. Ill. Dep't of Fin. & Prof'l Regulation

• Decision Date: 15 March 2018
• Docket Number: No. 1–16–2614,1–16–2614
• Citation: 105 N.E.3d 16,2018 IL App (1st) 162614
• Parties: Emmanuel K. NWAOKOCHA, Plaintiff–Appellee/Cross–Appellant, v. The ILLINOIS DEPARTMENT OF FINANCIAL AND PROFESSIONAL REGULATION and Jay Stewart, in His Official Capacity as Director of the Division of Professional Regulation of the Illinois Department of Financial and Professional Regulation, Defendants–Appellants/Cross Appellees.
• Court: United States Appellate Court of Illinois

2018 IL App (1st) 162614
105 N.E.3d 16

Emmanuel K. NWAOKOCHA, Plaintiff–Appellee/Cross–Appellant,
v.
The ILLINOIS DEPARTMENT OF FINANCIAL AND PROFESSIONAL REGULATION and Jay Stewart, in His Official Capacity as Director of the Division of Professional Regulation of the Illinois Department of Financial and Professional Regulation, Defendants–Appellants/Cross Appellees.

No. 1–16–2614

Appellate Court of Illinois, First District, Fourth Division.

Opinion filed March 15, 2018

Lisa Madigan, Attorney General, of Chicago (David L. Franklin, Solicitor General, and Paul Racette, Assistant Attorney General, of counsel), for appellants.

Alan Rhine, of Chicago, for appellee.

JUSTICE McBRIDE delivered the judgment of the court, with opinion.

105 N.E.3d 19

¶ 1 In this case, the plaintiff, Emmanuel K. Nwaokocha, was found to have violated the Medical Practice Act of 1987 (Act) ( 225 ILCS 60/1 et seq. (West 2012) ) based on his guilty plea in federal court, in which he admitted to knowingly and willfully soliciting and receiving a kickback for referring a patient to a home healthcare provider for services that would be paid for by Medicare. The Director of the Division of Professional Regulation (Director) of the Illinois Department of Financial and Professional Regulation (Department) concluded that, based on this violation, plaintiff's medical license should be suspended for a minimum period of three years. Plaintiff challenged the sanction in a complaint for administrative review in the circuit court, and the circuit court subsequently instructed the Department to enter a suspension without a minimum period. In this court, the Department contends that the Director did not abuse his discretion and that the Director's chosen sanction should have been imposed. Plaintiff cross-appeals, arguing that any suspension is "unduly harsh" and that the appropriate sanction would have been probation.

¶ 2 The record shows that in September 2013, a federal grand jury charged in a superseding indictment that plaintiff and 10 other defendants had engaged in a scheme to commit Medicare fraud over a five-year period. The indictment alleged that plaintiff and another physician referred patients to Rosner Home Healthcare (Rosner), a provider of home healthcare services, and falsely certified on forms that the patients were confined to their homes and required home healthcare services. Medicare reimbursed Rosner for the medically unnecessary services that it provided as a result of those referrals, and Rosner paid bribes and kickbacks to plaintiff and the other physicians in exchange for the referrals.

¶ 3 In April 2014, the federal government filed a superseding information against plaintiff, charging plaintiff with violating 42 U.S.C. § 1320a–7b(b)(1)(A) (2012), which provided that "[w]hoever knowingly and willfully solicits or receives any remuneration (including any kickback, bribe, or rebate) directly or indirectly, overtly or covertly, in cash or in kind *** in return for referring an individual to a person for the furnishing or arranging for the furnishing of any item or service for

105 N.E.3d 20

which payment may be made in whole or in part under a Federal health care program *** shall be guilty of a felony." The information specifically alleged that in July 2012, plaintiff was paid a kickback of $600 by a representative of Rosner in exchange for referring a patient to it for home health care services that would be paid for by Medicare. The information further alleged that the $600 payment was subject to forfeiture.

¶ 4 Plaintiff entered into a plea agreement to "enter a voluntary plea of guilty to the superseding information, which charged [plaintiff] with knowingly and willfully soliciting and receiving remuneration from Rosner in return for referring patients to Rosner for the furnishing and arranging for the furnishing of services for which payment may be made in whole or in part under Medicare, in violation of Title 42, United States Code, Section 1320a–7b(b)(1)(A)." Plaintiff agreed that he was pleading guilty "because he [wa]s in fact guilty of the charge contained in the superseding information." The plea agreement provided a factual basis, and plaintiff admitted "the following facts and that those facts establish his guilt beyond a reasonable doubt." Specifically, plaintiff admitted that on July 19, 2012, he met with Edgardo Hernal from Rosner, and during the meeting, plaintiff "received from Hernal a cash payment of $600, which [plaintiff] understood was payment for his referring a patient to Rosner." Plaintiff also admitted that he "knew that accepting the money was unlawful" and that "Rosner billed Medicare for the home health care services purportedly provided to the patient whom [plaintiff] referred." Plaintiff acknowledged that the charge to which he was pleading guilty carried a maximum sentence of five years imprisonment and "a maximum fine of $250,000, or twice the gross gain or gross loss resulting from the offense, whichever is greater." Plaintiff agreed that each party could "recommend whatever sentence it deem[ed] appropriate." Plaintiff further stated that he had "read [the plea] [a]greement and carefully reviewed each provision with his attorney" and that he "underst[ood] and voluntarily accept[ed] each and every term and condition of" the plea agreement.

¶ 5 A presentence investigation report (PSI) was prepared by a probation officer and submitted to the federal district court in advance of the sentencing hearing. The PSI indicated that in addition to the $600 kickback that he received in July 2012, plaintiff had also received a series of payments from representatives at Rosner for several years prior. The PSI also indicated that between 2008 and 2012, plaintiff had referred 72 patients to Rosner for which Medicare paid Rosner approximately $1.2 million. Special agent Ed Leitelt of the office of the Inspector General of the United States Department of Health and Human Services reported that plaintiff was recorded accepting $600 kickbacks on nine separate occasions and estimated that plaintiff had received a total of $78,000 in kickbacks from Rosner.

¶ 6 The PSI further indicated that plaintiff had made a written statement, reporting that he "was told, and believed, the money he received from Rosner was for marketing purposes." He claimed that he did not know that the conduct was illegal, but admitted that he could have taken steps to discover that it was. Plaintiff stated that he "did not set out to break the law but knew in his heart something was not right about the situation." He told the probation officer that he did not solicit or ask for the bribes but accepted them "against [his] better judgment." Plaintiff further claimed that he donated $10,500 of funds received from Rosner to charity.

¶ 7 At sentencing before the federal court, the government requested a sentence of 30 months' imprisonment, arguing that plaintiff "took advantage of the trust that his patients placed in him by making decisions that were influenced by his receipt of undisclosed, illegal remuneration from Rosner." Plaintiff contended that he was trusting, naive, and "led down a primrose path" by other participants in the scheme. Plaintiff submitted a number of letters from patients and coworkers, attesting to his character, and requested a sentence of probation. Plaintiff asserted that even if the federal district court would "do nothing other than impose the conviction and the mandatory special assessment of $100, [plaintiff] would still lose a variety of rights that he holds incredibly dear, including *** his chosen profession," noting that he would "have disciplinary action

105 N.E.3d 21

taken against his medical license by the Illinois Department of Financial and Professional Regulation."

¶ 8 The federal district court adopted the PSI and sentenced plaintiff to four years of probation, 250 hours of community service, forfeiture of the $600 kickback, and a $5000 fine. The court indicated that it was sentencing plaintiff "below the advisory guideline range" but did not explain its reasons for the departure. The court specifically stated that it was "recommend[ing] to the Department of Financial and Professional Regulation that [plaintiff] be permitted to keep his medical license," but it did not provide any reasons for that recommendation.

¶ 9 Thereafter, in June 2014, the Department filed an administrative complaint against plaintiff, seeking discipline with regards to his medical license, which began the proceedings that are the subject of the instant appeal. The complaint alleged that plaintiff's guilty plea established that he violated section 22(A)(3) of the Act, which allows the Department to impose discipline based on a "plea of guilty *** under the laws of any jurisdiction of the United States of any crime that is a felony." 225 ILCS 60/22(A)(3) (West 2012). The Department also alleged that plaintiff's guilty plea established a violation of section 22(A)(5) of the Act, allowing for discipline based on "[e]ngaging in dishonorable, unethical or unprofessional conduct of a character likely to deceive, defraud or harm the public." Id. § 22(A)(5). The Department asked that plaintiff's medical license be "suspended, revoked, or otherwise disciplined." In plaintiff's answer to the complaint, he admitted his guilty plea but contended that his...