SUBJECT:

John R. Tomko, R.Ph,

Petitioner,

The Inspector General

DECISION

This is another case presenting the question of whether an individual's plea agreement in Ohio State court "for treatment in lieu of conviction" constitutes a conviction within the meaning of section 1128(a)(4) of the Social Security Act (Act). John R. Tomko, a registered pharmacist (Petitioner), appeals the decision of the Inspector General (I.G.), made pursuant to section 1128(a)(4) of the Act, to exclude him from participation in Medicare, Medicaid, and all federal health care programs for a period of five years. For the reasons discussed below, I have no alternative but to uphold the I.G.'s decision.

I. Background

By letter dated July 31, 2003 (I.G. Ex. 6), the I.G. notified Petitioner of the decision to exclude him from program participation for five years. On September 23, 2003, Petitioner filed a timely request for review, and the matter has been assigned to me for resolution. In a prehearing telephone conference, the parties agreed to a briefing schedule. The parties have raised no disputes of material fact that would require an in-person hearing. ⁽¹⁾

The critical facts of this case are not in dispute. Petitioner was a licensed pharmacist in the State of Ohio. I.G. Ex. 1, at 2. On July 24, 2002, a criminal information was filed against Petitioner in Mahoning County, Ohio for one felony count of theft of drugs and one felony count of deception to obtain a dangerous drug, in violation of sections 2913.02(A)(3)(B)(6) and 2925.22(A)(B)(2) of the Ohio Revised Code. I.G. Ex. 2. On July 31, 2002, Petitioner pled guilty to both counts. I.G. Ex. 5. The court declared Petitioner eligible for intervention in lieu of conviction under Ohio Rev. Code Ann. � 2951.041, accepted the guilty plea, stayed further criminal proceedings, and ordered Petitioner to comply with certain terms and conditions. Id. Petitioner successfully complied with the terms and conditions imposed by the court and, on July 7, 2003, the Mahoning County Court dismissed the charges contained in the indictment. P. Ex. 2.

II. Issue

The sole issue before me is whether Petitioner was "convicted" of a felony relating to a controlled substance within the meaning of section 1128(a)(4) of the Act. ⁽²⁾

Petitioner also suggests that his exclusion violates the constitutional protection against double jeopardy, and his rights to equal protection under the law. However, as discussed below, I have no authority to review those issues.

III. Discussion

1. Petitioner was convicted of a felony relating to a controlled substance within the meaning of section 1128(a)(4) of the Act.

Section 1128(a)(4) of the Act requires that any individual or entity "convicted of a felony criminal offense relating to the unlawful manufacture, distribution, prescription, or dispensing of a controlled substance" be excluded from all federal health care programs. ⁽³⁾ An individual is considered to have been "convicted" within the meaning of the statute if his plea of guilty or nolo contendere "has been accepted by a Federal, state, or local court" (Act, section 1128(i)(3)), or he has "entered into participation in a first offender, deferred adjudication, or other arrangement or program where judgment of conviction has been withheld." Act, section 1128(i)(4).

Under Ohio Rev. Code Ann. � 2952.041, if an eligible offender, such as Petitioner, "enters a plea of guilty or no contest," the state criminal court "may stay all criminal proceedings and order the offender to a period of rehabilitation." Ohio Rev. Code Ann. � 2952.041(B) (2002). Petitioner argues that he was not "convicted" within the meaning of section 1128(a)(4) of the Act. He argues that the court's reference to "treatment in lieu of conviction" means that he was not convicted since "in lieu of" means "in place of." Further, Petitioner notes that, since he completed the terms and conditions set by the court, all charges from the indictment have been dropped, and the record sealed. Thus, according to the Ohio Court record and records from the State Board of Pharmacy, Petitioner has no criminal record, and thus has not been convicted. I.G. Ex. 4; P. Ex. 2.

I reject Petitioner's arguments. Ohio Rev. Code Ann. � 2952.041 plainly creates a "deferred adjudication program" and a "program where judgment of conviction has been withheld." Under the state statute, if an eligible offender enters a plea of guilty or no contest, the court may stay all criminal proceedings. By staying the proceeding after the entry and acceptance of a plea, the court defers the adjudication of the charges and withholds a judgment of conviction. What occurs next turns on whether the offender successfully completes the rehabilitation plan. If the offender fails to comply with the rehabilitation plan, the court "shall enter an adjudication of guilt and shall impose upon the offender a term of imprisonment." Ohio Rev. Code Ann. � 2952.041(F) (2002). If the person successfully completes his/her period of rehabilitation, the court may dismiss the proceedings against him. Ohio Rev. Code Ann. � 2952.041(H) (2002). In either case, the requirements of section 1128(i)(4) are met, i.e., an adjudication has been deferred and a judgment of conviction withheld.

In Travers v. Shalala, 20 F.3d 993, at 996 - 999 (9^th Cir. 1994), the court explained that this is precisely the type of program encompassed by the plain language of section 1128(i)(4). In Travers, the court distinguished between deferred prosecution procedures and deferred adjudication procedures. Under deferred prosecution, the parties agree to defer prosecution and withhold initiation of charges. If the defendant subsequently fails to abide by the terms of the parties' agreement, the defendant may then plead not guilty and proceed to trial. In contrast, Ohio Rev. Code Ann. � 2952.041 provides for an adjudication of guilt based on the earlier plea if the defendant fails to comply with the rehabilitation plan. The Ohio program therefore falls within the plain meaning of section 1128(i)(4). See Victoria L. Winterhalter, DAB CR1114, at 4 - 6 (2003); Handel J. Roberts, M.D., DAB CR911, at 7 (2002) (both holding that a plea of guilty pursuant to Ohio Rev. Code Ann. � 2952.041 constitutes a conviction under section 1128(i)(4)).

Congress broadly defined the term "conviction" in order "to ensure that exclusions from federally-funded health care programs would not hinge on state criminal justice policies," so the fact that a court's adjudication is not a "conviction" under state law is not controlling. Carolyn Westin, DAB No. 1381, at 3 (1993). In Westin, the petitioner participated in a deferred adjudication program, and her plea of nolo contendere was dismissed nunc pro tunc (now for then). She argued, accurately, that she had not been convicted under the state law. Nevertheless, the Departmental Appeals Board (Board) recognized that the federal statute controls, and concluded that her participation in the deferred adjudication program fell within the statutory definition of a conviction. See Travers at 996. Here, Petitioner signed a document titled "Plea of Guilty," which the court "accepted and ordered filed," exactly the process described in section 1128(i)(3) of the Act. I.G. Ex. 3; see also, Winterhalter at 4; Roberts at 7 (both holding that a plea of guilty pursuant to Ohio Rev. Code � 2952.041 constitutes a conviction under section 1128(i)(3)).

2. I do not have authority to review Petitioner's other claims.

Petitioner argues that his exclusion violates his Constitutional rights to equal protection ⁽⁴⁾ and to be free from double jeopardy. The regulations at 42 C.F.R. � 1001.2007(a)(1) grant me the authority to review exclusions of individuals from participation in Medicare and all other federal health care programs. However, that regulation provides I may only review whether a basis for the exclusion exists and whether the length of the exclusion is unreasonable. My review is further limited by section 1005.4(c)(1) of the Code of Federal Regulations which provides that in reviewing exclusions, civil money penalties, and assessments, an ALJ "does not have the authority to . . . find invalid or refuse to follow Federal statutes or regulations or secretarial delegations of authority." 42 C.F.R. � 1005.4(c)(1). Therefore, under this express limitation, I lack authority to find unconstitutional any provision of the statute or regulations.

IV. Conclusion

For the reasons discussed above, I conclude that the I.G. properly excluded Petitioner from participation in Medicare, Medicaid, and all other federal health care programs, and the five-year exclusion is sustained.

Carolyn Cozad Hughes

Administrative Law Judge

1. Attached to the I.G.'s brief (I.G. Br.) are I.G. Exhibits (I.G. Exs.) 1 - 6. Petitioner submitted a brief (P. Br.) and Petitioner Exhibits (P. Exs.) A through D. I have re-marked and re-numbered Petitioner's exhibits to conform to Civil Remedies Division standards: P. Exs. 1 - 10. The I.G. submitted a reply brief (I.G. Reply). There being no objections, I.G. Exs. 1 - 6 and P. Exs. 1 - 10 are admitted into evidence.

2. An exclusion under section 1128(a)(4) of the Act must be for a minimum period of five years. Where, as here, the I.G. imposes the minimum mandatory exclusion, the reasonableness of the length of the exclusion is not at issue. 42 C.F.R. � 1001.2007(a)(2).

3. "Federal health care program" is defined in section 1128B(f) of the Act as any plan or program that provides health benefits, whether directly, through insurance, or otherwise, which is funded directly, in whole or in part, by the United States Government, or any State health care program. "State health care program" is defined in section 1128(h) of the Act and includes the Medicaid program (Title XIX).

4. He asserts that, because of the relationship between the Ohio State Board of Pharmacy and the criminal court, a chemically dependant Ohio pharmacist receives harsher treatment than pharmacists from other states. Whereas other states address the problem through an administrative adjudication, the Ohio pharmacist in need of treatment will be more likely to receive a felony conviction.