Case Number: BS165771 Hearing Date: May 24, 2018 Dept: 85

Robert Wayne Baker v. State of California, Department of Health Care Services, et al., BS165771

Tentative decision on petition for writ of mandate: denied

Petitioner Robert Wayne Baker (“Baker”) seeks a writ of mandate directing Respondents Department of Health Care Services (“DHCS”) and DHCS’s Department of Audits and Investigation Division (“DAID”) to set aside DHCS’s decision and reinstate Baker as a provider in the Medi-Cal program.

The court has read and considered the moving papers, opposition, and reply, and renders the following tentative decision.

A. Statement of the Case

Petitioner Baker commenced this proceeding on May 22, 2017. The verified Petition alleges in pertinent part as follows.

On March 14, 2000, Baker received his Registered Nursing (“RN”) license in California. In 2009, Baker entered a plea nolo contendere to two charges of misdemeanor battery: one involved his former spouse and the other a female student on whom he was demonstrating to a class how to do a cardiac exam. Baker was convicted of both charges.

Based on these convictions, the Board of Registered Nursing (“Board”) filed an Accusation against him alleging unprofessional conduct. In 2010, Baker entered into a stipulated settlement with the Board in which he agreed to surrender his RN license and not apply for reinstatement for two years. This suspension also resulted in the suspension of his status as a provider of service in the Medi-Cal program.

In 2014, Baker applied to the Board for reinstatement as an RN. The Board found Baker to be rehabilitated and reinstated him conditioned on his passing a mental health exam and paying costs of $4,381.50. He complied with these conditions and was reinstated and placed on probation for three years.

In 2016, Baker applied to the Board for early termination of his probation and to DHCS for reinstatement as a provider of Medi-Cal services. The Board granted Baker’s request for early termination of his probation and DHCS denied his request for reinstatement in the Medi-Cal program. DHCS’s June 30, 2016 letter sets forth the basis for denying Baker’s reinstatement as a Medi-Cal provider. The letter erroneously states that Baker was arrested for sexual battery on an unconscious patient on August 21, 2008. In fact, no such arrest ever took place, and DHCS failed to provide evidence to substantiate this assertion.

DHCS has violated Baker’s due process rights by basing its denial of reinstatement on unsupported evidence.

B. Standard of Review

Petitioner Baker wrongly contends that the court exercises its independent judgment in determining whether DHCS erred in denying him reinstatement. DHCS is not required to hold an evidentiary hearing before denying an application for enrollment or re-enrollment in the Medi-Cal program. Welfare & Institutions (“W&I”) Code section 14043.2(b) states that the process for challenging denial of enrollment shall be in accordance with W&I Code section 14043.65, which states only that a provider is entitled to a written appeal. A trial court’s review of DHCS’s discretionary decision to deny a provider’s application for re-enrollment in the Medi-Cal program is made pursuant to traditional mandamus (CCP §1085) and is limited to determining whether the decision was arbitrary, capricious, entirely lacking in evidentiary support, or that the decision was made contrary to required legal procedures. Marvin Lieblein, Inc. v. Shewry, (“Lieblein”) (2006) 137 Cal.App.4th 700, 713-14.

In reviewing DHCS’s decision, the California Supreme Court has instructed that: “[t]he Medi-Cal program was created for the benefit of those eligible to receive assistance under it, and not for the economic advantage of [Medi-Cal providers] which render services to the beneficiaries. This basic premise imposes a duty [upon courts] to interpret the rules applicable to the program in a manner favorable to the beneficiaries.” Paramount Convalescent Center v. Department of Health Care Services, (1975) 15 Cal.3d 489, 499.

No administrative record is required for traditional mandamus to determine whether DHCS’s decision was an abuse of its discretion.

C. Governing Law

Title XIX of the Social Security Act, 42 USC sections 1396 et seq. (“Medicaid Act”), authorizes federal financial support to states for medical assistance to low-income persons who are aged, blind, disabled, or members of families with dependent children. The program is jointly financed by the federal and state governments and administered by the states. California has elected to participate in the Medicaid program through its Medi-Cal program. W&I Code §§ 14000 et seq.; 22 CCR §§ 50000 et seq. DHCS is the state agency that administers Medi-Cal.

1. Suspension

Under federal law, DHCS has discretion to exclude providers from participating in the Medi-Cal program if that provider’s license to provide health care has been revoked or suspended by any state licensing agency. 42 USC §§ 1396(a)(39), 1320a-7(b)(4). Under state law, DHCS must automatically suspend a provider in the Medi-Cal program whose license to provide health care has been revoked or suspended by a California licensing authority. W&I Code §14043.6.

In addition, the director of DHCS may suspend a provider from participation in the Medi-Cal program for conviction of any felony or any misdemeanor involving fraud, abuse of the Medi-Cal program or patient, or otherwise “substantially related to the qualifications, functions, or duties of a provider of services.” W&I Code §14123(a)(1). A conviction following a plea of nolo contendere is deemed to be a conviction within the meaning of W&I Code section 14123. W&I Code §14123(a)(2). DHCS has discretion to determine the length of the provider’s suspension. 42 CFR §1002.210.

2. Reinstatement

DHCS may grant reinstatement only if it is “reasonably certain that the types of actions that formed the basis for the original exclusion have not recurred and will not recur.” 42 CFR §1002.215(a). In making this determination, DHCS will consider (1) the conduct of the individual occurring prior to the date of the notice of suspension, if not known to DHCS at the time of the suspension; (2) the conduct of the individual after the date of the notice of suspension; and (3) whether all fines, and all debts due and owing to the government that relate to Medicare or any of the State health care programs have been paid. Id.

D. Statement of Facts[1]

1. Administrative Record

The Board issued Baker an RN license on March 14, 2000. AR 3.

a. The Convictions

(i). Battery against Student

The First Amended Accusation before the Board alleged in part as follows. In June 2008, Baker was teaching his students cardiovascular assessment as an instructor for a Health Assessment Lab at the California State University Northridge. AR 10. The students were practicing finding and taking an apical pulse. AR 10-11. This may require an examiner to use the hand with fingers closed to shift a female’s breast to perform a palpation. AR 11. While instructing the students, Baker “cupped” a student’s breast with his hand and brushed his hand over her nipple several times with his fingers. AR 11. Baker commented that the student had the “perfect sized breast” to conduct the examination, and the students reported that he was “constantly staring at their breasts.” Id. Baker also indicated that patients would not normally be wearing undergarments, such as a bra, and urged a student to change into a gown where she could remove her bra. Id. Baker stated that, at the very least, the students would have to wear gowns without undergarments for their final examination. Id.

In August 2008, Baker was booked for violating Penal Code section 243.4(c) for sexual battery where victim was unconscious of the act because of the perpetrator’s fraudulent representation of a professional purpose.[2] Pet. Arrest Records (“Arr. Rec.”) 7. Baker subsequently also was charged with sexual battery under Penal Code section 243.4(e)(1).[3] AR 128.

As part of a plea agreement, the complaint against Baker was amended on October 1, 2009 to add a misdemeanor charge of simple battery (Penal Code §242).[4] AR 105. Baker plead nolo contendere to the misdemeanor battery, was convicted, and placed on three years of summary probation. AR 105-06. The remaingin counts were dismissed as part of the plea agreement. AR 106.

(i). Battery against Former Spouse

In September 2008, while facing the charge for sexual battery, Baker was arrested for domestic violence on his ex-wife (Penal Code §273.5).[5] AR 38.

Pursuant to a plea agreement, the complaint against Baker was amended on September 25, 2008 to add a misdemeanor violation of spousal battery (Penal Code §243(e)(1)). AR 38. Baker plead nolo contendere to the misdemeanor spousal battery, was convicted, and was placed on three years of summary probation. AR 40. The remaining domestic violence charge was dismissed in the interest of justice. AR 41.

In January 2014 and December 2015, Baker requested the dismissal of his convictions under Penal Code section 1203.4. AR 35-36. This statute permits convicted misdemeanants to petition the court for release from the penalties and disabilities resulting from the conviction after their probationary period has ended. See People v. Ricci, (2017) 18 Cal.App.5th 526, 528. The trial court granted both requests. Id.

b. The License Suspension

On December 30, 2009, the Board brought a First Amended Accusation against Baker. AR 9-13. The accusation identified three separate causes for discipline: (1) unprofessional conduct, (2) sexual misconduct, and (3) substantially-related convictions. AR 11-12.

Baker stipulated to surrender his RN license without a disciplinary hearing, effective August 26, 2010. AR 2-7, 14.

c. License Reinstatement

On January 31, 2013, Baker filed a petition for reinstatement of his RN license with the Board. AR 18. The Board found that Baker demonstrated that he was rehabilitated to the extent that it would not be against the public interest to allow him to undergo mental health evaluation to determine if he can safely practice nursing. AR 19. If the evaluation showed that he could practice nursing safely, the Board concluded that Baker’s reinstatement petition would be granted and that he would be placed on probation for three years. AR 19-20.

Baker passed the mental health evaluation and re-attained his RN license. See AR 17.

d. The Provider Status Reinstatement Application

Baker was placed on DHCS’s Medi-Cal provider exclusion list for two reasons: (1) the misdemeanor convictions (W&I Code §14123(a); and (2) his voluntary surrender of his nurse’s license. W&I Code §14043.6. AR 14-15.

On October 22, 2015, Baker requested DHCS for reinstatement as a provider in the Medi-Cal program. AR 16. Baker attached a copy of the Board’s decision to reinstate his license and a printout from the Department of Consumer Affairs website indicating that his license status was “current.” AR 16-24.

On November 4, 2015, DHCS informed Baker that it received his petition for reinstatement. AR 27. DHCS informed Baker that it was providing both him and the Attorney General with an opportunity to present written argument and evidence on his request. Id. DHCS further informed Baker that DHCS’s DAID would investigate. AR 27.

Baker’s counsel submitted documents showing that Baker’s two misdemeanor convictions had been expunged pursuant to Penal Code section 1203.4. AR 34-46. On March 21, 2016, Baker provided DHCS with a certified copy of the court minutes from the student battery case. AR 52.

Baker also filled out a personal history statement as part of his reinstatement request. AR 86-99. Baker signed the statement certifying “that there are no willful misrepresentations, omissions, or falsifications, included in the personal history statement” and that he was “fully aware that any such misrepresentations, omissions, or falsifications will be grounds for the immediate rejection of [his] re-statement application or termination.” AR 99.

On March 21, 2016, a DHCS investigator reviewed Baker’s case file and interviewed him. AR 52-53. The investigator asked Baker to explain the circumstances of his 2008 and 2009 convictions. Even when prompted, Baker never offered any details or explanation of either circumstance. AR 52. The investigator characterized Baker as “not forthcoming.” Id. According to the investigator, Baker also adamantly claimed that he did nothing wrong and did not take responsibility for his actions. AR 53. Baker stated that he was “not actually arrested” for his Penal Code section 242 conviction. Id. Baker seemed to feel he was the victim in both cases. Id.

The investigator noticed that Baker omitted on his personal history statement the August 21, 2008 arrest for sexual battery on an unconscious person. AR 52, 94. The investigator asked Baker about this omission. AR 52. Baker responded that he knew nothing of the arrest or charge and that “I had my record expunged and was told you would not be able to get those records. That could be the original charge and I just plead down to simple battery.” Id.

The investigator recommended that Baker not be reinstated as a provider in the Medi-Cal program. AR 53. The investigator opined that Baker’s convictions for simple battery and spousal battery were serious offenses and he showed no remorse nor claimed any responsibility for his actions during their meeting. Id. The investigator felt that Baker was only concerned with getting his name removed from the ineligibility list so that he could be gainfully employed. Id.

e. The Denial

On June 30, 2016, DHCS notified Baker that his petition for reinstatement was denied. AR 115-17. DHCS first noted that the federal standard for reinstatement requires that it be “reasonably certain” that the types of actions forming the basis for the original exclusion will not reoccur, a standard that is “high”. AR 116.

DHCS noted that to Baker’s credit, his RN license had been renewed, the Board indicated that he had complied with its conditions, and he took anger management and sexual harassment prevention classes. AR 116. Both convictions had been dismissed under Penal Code section 1203.4, but remain subject to the DHCS jurisdiction. AR 116.

DHCS noted that the convictions demonstrated a “lack of restraint and unprofessional conduct.” AR 117. DHCS remarked, “Both were unwanted touching, one was violent in nature and the other involved him touching a student inappropriately in front of several witnesses.” Id. Baker omitted his arrest for sexual battery on an unconscious person on his personal history statement. Although the incident did not result in conviction, DHCS could not ignore the frequency and sexual nature of the incidences. Id.

DHCS showed concern that Baker was not completely rehabilitated as he did not show remorse during the interview, adamantly denied wrongdoing, and was not forthcoming. Id. DHCS has a vested interest in protecting these beneficiaries and implied that Baker’s evidenced non-rehabilitation did not serve this interest. Id.

2. Petitioner’s Supplemental Declaration

In 2008, Baker had an altercation with his former spouse and was arrested for spousal battery under Penal Code section 273.5(a). Baker Decl. ¶2. In 2009, Baker was convicted of spousal battery (Penal Code §243(e)(1)) and the domestic violence charge (Penal Code §273.5(a)) was dismissed. Id.

In 2008, Baker was also arrested and charged with sexual battery on a person who was conscious of the nature of the act (Penal Code §243.4(c)). Baker Decl. ¶3. Baker committed the violation while demonstrating to nursing students a procedure for taking a person’s apical pulse with a stethoscope. Id. In 2009, the sexual battery count under Penal Code section 243.4(c) was dismissed, and Baker was convicted of simple battery (Penal Code §242). Id.

Baker complied with all court orders resulting from the charges and had the charges dismissed. See Penal Code §1203.4. Baker Decl. ¶¶ 2-3.

As a result of the convictions, Baker voluntarily surrendered his RN license and was placed on the exclusion list for providers of Medi-Cal services. Baker Decl. ¶4. In 2014, the Board restored his nursing license and placed him on probation. Baker Decl. ¶5. In 2016, the Board terminated his probation and fully restored his license. Id.

In 2015, Baker applied for reinstatement as a Medi-Cal provider. Baker Decl. ¶6. Baker disclosed on his application both of the situations that led to his arrest and convictions. Id. On June 30, 2016, his petition was denied. Id. DHCS stated Baker showed a lack of remorse and failed to disclose a charge of sexual battery on an unconscious person. Id.

Baker represented himself in his petition for reinstatement and did not know the meaning of “unconscious” as used in the Penal Code. Baker Decl. ¶6. He was dismayed when he heard that the DHCS investigator accused him of omitting an arrest for sexual battery on an unconscious patient. Baker Decl. ¶7. He protested that he did not sexually touch an unconscious person. Id. Baker felt like he was being accused of a third crime in addition to the two crimes for which he was prosecuted. Id.

Baker loves nursing and wants to continue to advance in his profession. Baker Decl. ¶9. He has made mistakes and tried to learn from them, and he is no longer a threat to Medi-Cal patients. Baker Decl. ¶10.

3. Respondents’ Supplemental Declaration

DHCS prepared a Report of Investigation in response to Baker’s request for reinstatement to the Medi-Cal program. Granda Decl. ¶6. A DHCS attorney Sara M. Granda (“Granda”) reviewed this report. Id. Granda observed that Baker had been arrested for a violation of Penal Code section 243.4(c), phrased in the report of investigation as “sexual batt: unconscious person.” Id. In denying Baker’s request, Granda observed that he was arrested for sexual battery of a person who was at the time unconscious of the nature of the act because Baker fraudulently represented that the touching served a professional purpose. Id. Granda did not believe that “sexual battery of an unconscious person” meant sexual touching of a person at the time the person had lost consciousness. Id.

On April 17, 2018, Granda searched online and determined that Baker is currently employed as a “Registered Nurse Case Manager” with Hollywood Presbyterian Medical Center. Granda Decl. ¶7.

E. Analysis

Petitioner Baker seeks a writ of mandate directing DHCS to set aside its decision and reinstate him as a provider in the Medi-Cal program. The court may overturn the decision only if DHCS’s exercise of discretion was arbitrary and capricious.

Baker contends that DHCS’s findings are not supported by the evidence. Pet. Op. Br. at 3. He alleges that, contrary to DHCS’s finding, he did not omit an arrest for sexual battery on an unconscious person in his personal history statement because such an arrest never happened. Pet. Op. Br. at 4.

According to both booking records and the California Department of Justice’s criminal background report, Baker was arrested for sexual battery on an unconscious person (Penal Code §243.4(c)). AR 127; Pet. Arr. Rec. 7. Baker attempts to discredit the booking record by pointing out that it identifies the arresting officer as “Gladstein”, and Gladstein was actually the trial court judge presiding over the criminal matter. Pet. Op. Br. at 4; Pet. Arr. Rec. 7. Baker explains that the judge ordered him to be booked by the next court date. Id.

Baker does not demonstrate error. An “arrest” is the taking of a person into custody in a case and manner authorized by law. Penal Code §834. An arrest is made by actual restraint of the person. Penal Code §835. A person arrested for a misdemeanor may be released by the arresting officer in most circumstances and given a citation that requires the defendant to be booked or fingerprinted. Penal Code §853.6(g). If it is so indicated, the magistrate shall order the defendant to be booked or fingerprinted by the arresting agency before the next court appearance. Id. The booking record shows that the judge ordered Baker to be booked by his next court appearance per Penal Code section 853.6(g). Baker was arrested for sexual battery on an unconscious person and later booked for that offense. Baker could not reasonably have been expected to know this law, however, and the court will accept that he may not have known that he had been arrested for the Penal Code §243.4(c) charge when he filled out his Personal History Statement.

However, the Personal History Statement requires disclosure of more than arrests. It requires disclosure of arrests and detentions by the police and any summons into a court procedure. For each such procedure, Baker was required to list the “alleged crime.” AR 94. In August 2008, Baker was charged in a criminal complaint with both sexual battery where victim was unconscious of the act because of the perpetrator’s fraudulent representation of a professional purpose (Penal Code §243.4(c)) and sexual battery (Penal Code §243.4(e)(1)). In his Personal History Statement, he disclosed only his plea to simple battery and not the more serious charges. AR 94. In September 2008, while facing the charge for sexual battery, Baker was arrested for domestic violence on his ex-wife (Penal Code §273.5). AR 38. Again, he listed in his Personal History Statement only the misdemeanor charge of spousal battery (Penal Code §243(e)(1)), and not the more serious domestic violence charge. AR 94.

These omissions possibly could be excused if Baker had been candid in his interview. Yet, in that interview, Baker was asked to explain the circumstances of his two convictions and failed to do so. AR 52. Even when prompted, he was not forthcoming about the underlying facts and adamantly contended that he did nothing wrong. When asked why he pled nolo, Baker said he did not want to risk having to register as a sex offender. AR 53. Baker’s failure to disclose the facts behind his two cases — particularly the student assault – made his failures material omissions.

Baker contends that DHCS misinterpreted the meaning of “unconscious” in Penal Code section 243.4(c). Pet. Op. Br. at 5. He contends that the criminal case never involved sexual assault on an unconscious person as that word is used in common parlance. Id. He states he was shocked when the investigator accused him of that offense. Baker Decl.¶7.

Penal Code section 243.4(c)’s unconsciousness requirement does not require proof that the victim was totally and physically unconscious during the acts in question. People v. Pham, (2009) 180 Cal.App.4th 919, 928. It simply requires proof that the defendant tricked the victim into submitting to the touching on the pretext it served a professional purpose. Id. There is no evidence that either the DHCS or its investigator misinterpreted the term “unconscious” in Penal Code section 243.4(c). To the contrary, DHCS’s counsel asserts that she properly understood its meaning when she evaluated Baker’s petition. Granda Decl. ¶¶ 1, 6.

Baker may have been in shock, but he could easily have addressed his misunderstanding by going over the facts and allegations with the DHCS investigator. Yet, when asked about the charge, Baker responded that his record had been expunged and he thought DHCS “would not be able to get those records.” AR 52. It seems plain that Baker failed to discuss the accusations and underlying facts because he knew they involved an accusation of sexual misconduct in the course of his professional nursing duties, which would be a serious issue for DHCS. See AR 117.

DHCS also showed concern that Baker was not completely rehabilitated because he did not show remorse during the interview, adamantly denied wrongdoing, and was not forthcoming. AR 117. DHCS has a vested interest in protecting the Medi-Cal beneficiaries and Baker’s lack of rehabilitation did not serve this interest. Id. As DHCS’s opposition points out, Baker committed two battery offenses showing a lack of control, provided no evidence of remorse, and failed to provide any evidence of rehabilitation. Opp. at 14.

DHCS’s opinion is fully supported on this ground alone. Baker adamantly claimed that he did nothing wrong and did not take responsibility for his actions. AR 53. He was not forthcoming with his answers. AR 52. He appeared to feel like he was the victim. AR 53. These are not actions of a remorseful and fully rehabilitated applicant for the Medi-Cal system.

Finally, Baker contends without citation to legal authority that he was deprived of due process because DHCS did not afford him an opportunity to contest its findings. Pet. Op. Br. at 3. In order to invoke the protection of the due process clause, Baker must demonstrate that he has a liberty or property interest at stake. Mednik v. State Dept. of Health Care Services, (2009) 175 Cal.App.4th 631, 641. An applicant for reinstatement is just like a new prospective provider of Medi-Cal services, and has no protected property interest to participate in the Medi-Cal program. Id. Baker has no property interest on which to invoke the protection of the due process clause. Nor is there a liberty interest in a mere application.

DHCS did not commit arbitrary or capricious abuse of discretion when it denied reinstatement of Baker’s Medi-Cal provider status.

F. Conclusion

The Petition for writ of mandate is denied. Respondents’ counsel is ordered to prepare a proposed judgment, serve it on Baker’s counsel for approval as to form, wait ten days after service for any objections, meet and confer if there are objections, and then submit the proposed judgment along with a declaration stating the existence/non-existence of any unresolved objections. An OSC re: judgment is set for July 19, 2018 at 9:30 a.m.

[1] Although an administrative record is not required, the parties have submitted an Administrative Record and each has supplemented it with a declaration.

[2] Penal Code section 243.4(c) provides: “Any person who touches an intimate part of another person for the purpose of sexual arousal, sexual gratification, or sexual abuse, and the victim is at the time unconscious of the nature of the act because the perpetrator fraudulently represented that the touching served a professional purpose, is guilty of sexual battery.”

[3] Penal Code section 243.4(e)(1) provides: “Any person who touches an intimate part of another person, if the touching is against the will of the person touched, and is for the specific purpose of sexual arousal, sexual gratification, or sexual abuse, is guilty of misdemeanor sexual battery.”

[4] Penal Code section 242 provides: “A battery is any willful and unlawful use of force or violence upon the person of another.”

[5] Penal Code section 273.5 provides: “Any person who willfully inflicts corporal injury resulting in a traumatic condition upon a victim described in subdivision (b) [e.g., a spouse or former spouse] is guilty of a felony.”