Birnbaum v. Lackner

Opinion

THOMPSON, J. Section 51458 of title 22 of the California Administrative Code incorporates a rule of the Director of the Department of Health which provides that a plea of nolo contendere to an offense involving moral turpitude shall be deemed to be a conviction of the charged offense which authorizes the director to suspend the defendant’s status as a provider of medical services in the California Medical Assistance Program (Medi-Cal). This appeal tests the validity of that rule. As did the trial court, we conclude that the rule is contrary to and not authorized by statute. (See Cartwright v. Board of Chiropractic Examiners (1976) 16 Cal.3d 762 [129 Cal.Rptr. 462, 548 P.2d 1134].) Accordingly, we affirm a judgment of the trial court which mandates the Director of the Department of Health to vacate a suspension of respondent based solely upon respondent’s plea of nolo contendere to a charge of conspiracy to defraud.

Appellant Director of the California Department of Health filed an accusation against respondent Milton Birnbaum, M.D. The accusation seeks suspension of Dr. Bimbaum’s status as a “provider” in Medi-Cal. The sole factual basis asserted in the accusation is Dr. Bimbaum’s plea of nolo contendere to a criminal charge of conspiracy to defraud.1

Based upon the fact of the nolo contendere plea and the resulting judgment of conviction in the criminal proceeding, an administrative law judge recommended Dr. Bimbaum’s suspension as a Medi-Cal provider for one year.2 The Department of Health adopted the recommendation of the administrative law judge.

[287]Dr. Bimbaum sought review of the department’s determination by petition for writ of administrative mandate. The trial court concluded that a “plea of nolo contendere is not a conviction, and may not be considered to be a conviction” for the purpose of authorizing the suspension from Medi-Cal provider status. It issued its peremptory writ of mandate directing the department to set aside its decision suspending Dr. Bimbaum’s status.

In this appeal from the trial court judgment, the department asserts that by reason of its rule incorporated in section 51458 of title 22 of the California Administrative Code, the judgment in the criminal case is a proper basis of suspension although the judgment is based upon a plea of nolo contendere.

In Cartwright v. Board of Chiropractic Examiners, supra, 16 Cal.3d 762, 771-773, our Supreme Court has held that, absent a specific statute authorizing the process, a conviction of a crime based upon the defendant’s plea of nolo contendere pursuant to Penal Code section 1016, subdivision 3, may not be used for a collateral purpose such as the revocation or suspension of a professional license. (Id., at pp. 768, 774.) The Supreme Court enunciates two principal bases for its rule. It finds a legislative intent to preclude the use of a conviction based upon a nolo contendere plea as a basis for professional discipline in situations not specifically covered by statute from legislation authorizing the use of a nolo contendere plea for that purpose in limited situations.3 (Id., at pp. 771-772.) It reasons further that, in contrast to a guilty finding after trial or a plea of guilty, a nolo contendere plea is not a reliable indicator that the person entering the plea in fact committed the offense charged. (Id., at pp. 773-774.)