Nalluri v. Ohio Bur. of Workers' Comp. , 2021 Ohio 4625 ( 2021 )

[Cite as Nalluri v. Ohio Bur. of Workers' Comp., 2021-Ohio-4625.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
Anil Choudary Nalluri, M.D., :
Appellant-Appellant, :
No. 21AP-140
v. : (C.P.C. No. 19CV-07964)
Ohio Bureau of Workers' Compensation, : (REGULAR CALENDAR)
Appellee-Appellee. :
D E C I S I O N
Rendered on December 30, 2021
On brief: Graff & McGovern, LPA, and Levi J. Tkach,
for appellant. Argued: Levi J. Tkach.
On brief: David Yost, Attorney General, and Jacquelyn
McTigue, for appellee. Argued: Jacquelyn McTigue.
APPEAL from the Franklin County Court of Common Pleas
MENTEL, J.
{¶ 1} Appellant-appellant, Anil Choudary Nalluri, M.D., appeals from a March 8,
2021 decision from the Franklin County Court of Common Pleas affirming a final order
issued by appellee-appellee, Ohio Bureau of Workers' Compensation ("BWC"), denying his
application for certification as a provider in the Health Partnership Program ("HPP").
{¶ 2} For the reasons that follow, we affirm.
I. FACTS AND PROCEDURAL HISTORY
{¶ 3} Appellant is a physician licensed to practice medicine in the state of Ohio
since 1977. On March 15, 2012, appellant was indicted by a Franklin County Grand Jury of
two counts of workers' compensation fraud in violation of R.C. 2913.48, felonies of the fifth
degree; and two counts of tampering with records in violation of R.C. 2913.42, felonies of
the third degree. State v. Nalluri, Franklin C.P. No. 12CR-1367. On December 13, 2012,
appellant pleaded guilty to one count of workers' compensation fraud in violation of R.C.
No. 21AP-140 2
2913.48, a misdemeanor of the first degree. Appellant paid restitution, costs of the
investigation, and voluntarily decertified from BWC reimbursement eligibility.
{¶ 4} On April 21, 2017, appellant applied to the BWC to be enrolled and certified
as a provider in the HPP. In the application, appellant disclosed that he had a history of
one or all of the following: "a felony conviction in any jurisdiction, a conviction under a
federal controlled substance act; a conviction for an act involving dishonesty, fraud, or
misrepresentation; a conviction for a misdemeanor committed in the course of practice or
involving moral turpitude." By letter dated June 12, 2017, BWC notified appellant that it
would deny his application for HPP certification based on a "history of a Felony conviction
for Workers' Compensation Fraud." Appellant requested a hearing before the BWC. On
October 19, 2017, BWC sent a letter to appellant stating that his denial was not based on a
felony conviction, but appellant's "history of a misdemeanor conviction for Workers'
Compensation Fraud, in the Court of Common Pleas, Franklin County, Ohio Case numbers:
12CR-03-1367." (October 19, 2017 Letter.)
{¶ 5} The hearing was held on November 3, 2017. There is no dispute that the
evidence adduced at the hearing demonstrated that appellant had been convicted of
workers' compensation fraud in violation of R.C. 2913.48, a misdemeanor of the first
degree. On April 26, 2018, the referee issued a report and recommendation finding that
BWC's decision to deny appellant's application for HPP certification was proper. The
referee wrote, "Dr. Nalluri admitted, and the record confirms, that on December 13, 2012,
he pleaded guilty to one count of Workers' Compensation Fraud, a misdemeanor of the first
degree." (Apr. 26, 2018 Report & Recommendation at 5.) The referee found that it was
required to deny the application as long as the guilty plea remains in force. Appellant filed
objections to the report and recommendation. On September 19, 2019, BWC issued a final
order denying appellant's application for certification as a HPP provider. Appellant filed a
notice of appeal to the Franklin County Court of Common Pleas on October 3, 2019.
{¶ 6} On March 8, 2021, the Franklin County Court of Common Pleas filed its
decision and judgment entry affirming the final order issued by BWC finding that the
BWC's decision to deny appellant's application for certification as a HPP provider was
supported by reliable, probative, and substantial evidence. The common pleas court found
that the offense committed by appellant constituted "both a misdemeanor committed in
the course of practice and a misdemeanor involving moral turpitude." (Mar. 8, 2021
No. 21AP-140 3
Decision & Jgmt. Entry at 6.) The common pleas court ultimately concluded that, pursuant
Ohio Adm.Code 4123-6-02.2(B)(5), the BWC had no discretion to certify a physician's
application as a HPP provider if he or she has a felony conviction or a conviction for an act
involving dishonesty, fraud, or misrepresentation. (Mar. 8, 2018 Decision & Jgmt. Entry
at 6.)
{¶ 7} Appellant filed a timely appeal.
II. ASSIGNMENT OF ERROR
{¶ 8} Appellant assigns the following as trial court error:
The common pleas court erred as a matter of law by
misapplying BWC's review requirements.
III. LEGAL ANALYSIS
A. Appellant's Sole Assignment of Error
{¶ 9} In appellant's sole assignment of error, he argues the common pleas court
erred in misapplying BWC's review requirements for appellant's application for
certification as a HPP provider.
{¶ 10} Pursuant to R.C. 119.12, a court of common pleas, when resolving
administrative appeals, must review the entire record to determine whether the agency's
decision was supported by reliable, probative, and substantial evidence. Pons v. Ohio State
Med. Bd., 66 Ohio St.3d 619, 621 (1993); Wloszek v. Ohio Bur. of Workers' Comp., 10th
Dist. No. 12AP-529, 2013-Ohio-769, ¶ 6, citing Leslie v. Ohio Dept. of Dev., 171 Ohio App.3d
55, 2007-Ohio-1170, ¶ 43 (10th Dist.), citing Univ. of Cincinnati v. Conrad, 63 Ohio St.2d
108, 110-11 (1980). "The court of common pleas' review of the administrative record is
neither a trial de novo nor an appeal on questions of law only, but a hybrid review in which
the court must appraise all the evidence as to the credibility of the witnesses, the probative
character of the evidence and the weight thereof." (Internal quotation and citation omitted.)
Gralewski v. Ohio Bur. of Workers' Comp., 167 Ohio App.3d 468, 2006-Ohio-1529, ¶ 16
(10th Dist.). When determining whether the agency's decision is adequately supported, the
court of common pleas must give due deference to the agency's decision as the legislator
has determined that it is best positioned to consider the evidence presented. Id. at ¶ 16,
quoting Krain v. State Med. Bd., 10th Dist. No. 97APE08-981 (Oct. 29, 1998).
{¶ 11} The standard of review for this court in an administrative appeal is even more
limited and will only reverse the decision of the common pleas court when the decision
No. 21AP-140 4
constitutes an abuse of discretion. Melnyk v. Ohio Dept. of Medicaid, 10th Dist. No. 18AP-
693, 2019-Ohio-5134, ¶ 16, citing Avalon Resort & Spa LLC v. State Unemp. Comp. Rev.
Comm., 10th Dist. No. 18AP-212, 2018-Ohio-4294, ¶ 20, citing Miracle Home Health Care,
LLC v. Ohio Dept. of Job & Family Servs., 10th Dist. No. 12AP-318, 2012-Ohio-5669, ¶ 18.
A finding of abuse of discretion requires a finding that a court's decision is "unreasonable,
arbitrary or unconscionable." Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983).
"However, on the question of whether the [agency's] order was in accordance with the law,
this court's review is plenary." Saxe v. Ohio Dept. of Mental Retardation & Dev.
Disabilities, 10th Dist. No. 09AP-1022, 2010-Ohio-4377, ¶ 8, citing Univ. Hosp., Univ. of
Cincinnati College of Medicine v. State Emp. Relations Bd., 63 Ohio St.3d 339, 343 (1992);
Black v. State Bd. of Psychology, 10th Dist. No. 04AP05-491, 2005-Ohio-1449, ¶ 5, citing
Univ. Hosp. at paragraph one of the syllabus.
{¶ 12} The Ohio General Assembly created the HPP to provide a comprehensive
managed care program, administered by BWC, to provide medical services to employees
for their work-related injuries or occupational diseases. Kistler v. Ohio Bur. of Workers'
Comp., 10th Dist. No. 04AP-1095, 2006-Ohio-3308, ¶ 3, citing R.C. 4121.441(A). The State
of Ohio has a legitimate interest in regulating the character, honesty, and busines practices
of its medical providers to ensure payments from the state "do not go to convicted felons
and those convicted of acts of fraud and dishonesty." Wloszek at ¶ 11.
{¶ 13} The BWC is required to "establish minimum criteria for provider
certification. Providers must meet all licensing, certification, or accreditation requirements
necessary to provide services in Ohio." Ohio Adm.Code 4123-6-02.2(A). Ohio Adm.Code
4123-6-02.2(B) establishes provider certification criteria under HPP. In relevant part, a
provider shall:
Not have a history of a felony conviction in any jurisdiction, a
conviction under a federal controlled-substance act, a
conviction for an act involving dishonesty, fraud, or
misrepresentation, a conviction for a misdemeanor committed
in the course of practice or involving moral turpitude, or court
supervised intervention or treatment in lieu of conviction
pursuant to section 2951.041 of the Revised Code or the
equivalent law of another state.
Ohio Adm.Code 4123-6-02.2(B)(5), effective December 3, 2015.
No. 21AP-140 5
{¶ 14} In the present case, appellant was convicted of workers' compensation fraud
in violation of R.C. 2913.48, a misdemeanor of the first degree. This court has consistently
found that the language of Ohio Adm.Code 4123-6-02.2(B)(5) is clear and unambiguous in
that the BWC is required to deny certification of a physician's application as a provider in
the HPP if he or she is convicted of an act of dishonesty, fraud, or misrepresentation.
Wloszek at ¶ 9, 11 ("under Ohio Adm.Code 4123-6-02.2(B)(5), the BWC has no discretion
to certify a physician to participate in HPP once it demonstrated that the physician has a
felony conviction or a conviction for an act involving dishonesty, fraud, or
misrepresentation."); Kistler, 2006-Ohio-3308, at ¶ 12 (finding the BWC has no discretion
to certify a physician once it is demonstrated that the physician has (1) a felony conviction,
or (2) a conviction for an act involving dishonesty, fraud, or misrepresentation); Gralewski,
2006-Ohio-1529, at ¶ 22, 41 (concluding that evidence of mitigation was irrelevant to the
basic issue of whether the administrator had the legal authority to decertify the provider).
Therefore, the trial court did not err in upholding the agency's decision as appellant's
conviction for workers' compensation fraud precluded him from certification as a provider
in the HPP.
{¶ 15} While appellant appears to contend throughout his brief that mitigating
circumstances should be considered, it is irrelevant to the ultimate issue of whether
appellant meets the minimum credentialing requirements for certification as a HPP
provider. Gralewski at ¶ 16. Neither the relevant statute nor the foregoing rules contain
any mention of mitigating circumstances. Id. at ¶ 22. Here, appellant has failed to identify
a statutory basis for BWC to have considered mitigating circumstances or discretion as it is
bound by the mandatory terms of Ohio Adm.Code 4123-6-02.2.
{¶ 16} Appellant notes that Ohio Adm.Code 4123-6-02.2 was amended on
September 1, 2020. The revised language reads in relevant part:
(B) The minimum criteria for a provider, where applicable
based upon the type of provider, are as follows. The provider
shall:
***
(5) Not be currently ineligible to participate in the [HPP] due
to the provider having been convicted of or pleaded guilty to a
criminal offense as set forth in the appendix to this rule.
No. 21AP-140 6
Ohio Adm.Code 4123-6-02.2(B)(5), effective September 1, 2020.
{¶ 17} Article II, Section 28 of the Ohio Constitution prohibits the General Assembly
from passing retroactive laws and defends vested rights from new legislative infringements.
State ex rel. A.J. Rose Mfg. Co. v. Schwarz, 10th Dist. No. 11AP-379, 2012-Ohio-4367, ¶ 5,
citing Cosby v. Franklin Cty. Dept. of Job & Family Servs., 10th Dist. No. 07AP-41, 2007-
Ohio-6641, ¶ 15. Any preclusion against retroactive laws as to legislative enactments also
applies to rules and regulations of an administrative agency. Id. To determine if a statute
or rule can be applied retroactively, a reviewing court must engage in a two-part test. Id."First, it must be determined whether the statute or rule contains language that expresses
a clear intent that it be applied retroactively. If it does, only then does the analysis progress
to the second step, which analyzes whether the challenged statute or rule is remedial or
substantive." Id.; Ohio Civ. Serv. Emps. Assn., AFSCME Loc. 11, AFL-CIO v. Ohio School
Facilities Comm., 10th Dist. No. 06AP-413, 2007-Ohio-297, ¶ 17. Here, Ohio Adm.Code
4123-6-02.2 contains no language to indicate that the General Assembly intended that it
apply retroactively. Accordingly, Ohio Adm.Code 4123-6-02.2, effective December 3, 2015,
controls our analysis in this case.
{¶ 18} Regardless, Ohio Adm.Code 4123-6-02.2, as currently constructed, still
requires that appellant be denied certification as a HPP provider. Under the appendix for
"Exclusions Due to Criminal Convictions," under Tier I "Permanent ineligibility" offenses,
"[i]ndividuals who have been convicted of or pleaded guilty to an offense in any of the
following sections of the Revised Code are permanently ineligible to participate in the
[HPP]." Id. Listed under the Tier I, permanent ineligible offenses, is a conviction of
workers' compensation fraud in violation of R.C. 2913.48. Accordingly, under either the
new or previous iteration of Ohio Adm.Code 4123-6-02.2, appellant is barred from HPP
certification.
{¶ 19} Appellant identifies several other provisions of the administrative code and
revised code that he contends allows the BWC discretionary authority for HPP certification
in this case, none of which are persuasive. Appellant first identifies R.C. 4121.444, which is
titled "[p]enalties for obtaining or attempting to obtain payment by deception; termination
of agreement or reimbursement." R.C. 4121.444 precludes healthcare providers from
obtaining or attempting to obtain payments by deception under R.C. 4121, 4123, 4127 and
4131, and provides penalties from the providers that engage in the prohibited behavior.
No. 21AP-140 7
After careful review of R.C. 4121.444, this court finds the statute inapplicable to the facts of
the case. Similarly, we also find appellant's reliance on Ohio Adm.Code 4123-6-17(A)
unpersuasive as this provision of the administrative code concerns "standards and
procedures for adjudication hearings" when refusing to certify or recertify a provider for
the HPP. As Ohio Adm.Code 4123-6-17(A) does not apply as to whether appellant qualifies
for certification as a participant in the HPP, there is no conflict between the mandatory
language of "shall" in Ohio Adm.Code 4123-6-02.2(B) and the discretionary language
"may" in Ohio Adm.Code 4123-6-17(A) as suggested by appellant.
{¶ 20} Appellant next argues that Ohio Adm.Code 4123-6-02.51(B) allows the BWC
discretion to grant appellant HPP certification. Ohio Adm.Code 4123-6-02.51(B) states,
"[n]otwithstanding and in addition to the provisions set forth in this rule, pursuant to
division (C)(1) of section 4121.444 of the Revised Code the administrator may terminate
any agreement between the bureau and * * * a health care provider * * * and cease
reimbursement to, decertify and terminate the enrollment of that * * * provider * * * for
services rendered." After careful review of the administrative code provision, we find
appellant's argument is without merit. Ohio Adm.Code 4123-6-02.51(B) authorizes the
BWC to decertify an already-certified HPP provider. Ohio Adm.Code 4123-6-02.51(B) does
not address whether the BWC has discretion to grant HPP certification to a provider that is
otherwise disqualified based on the minimum criteria for certification as a HPP provider.
In order to reach Ohio Adm.Code 4123-6-02.51(B), a provider must meet the minimum
eligibility criteria of Ohio Adm.Code 4123-6-02.2. Because appellant was convicted of a
misdemeanor committed in the course of practice or involving moral turpitude, BWC was
required to deny appellant's application to become a provider under the HPP.
{¶ 21} Appellant's sole assignment of error is overruled.
IV. CONCLUSION
{¶ 22} Having overruled appellant's sole assignment of error, we affirm the
judgment of the Franklin County Court of Common Pleas.
Judgment affirmed.
DORRIAN, P.J. and LUPER SCHUSTER, J., concur.
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