SUBJECT:

James Rosselit, Jr.,

Petitioner,

The Inspector General.

DECISION

I sustain the determination of the Inspector General (I.G.) to exclude Petitioner, James Rosselit, Jr., from participation in Medicare, Medicaid, and all federal health care programs for a period of five years. I find the I.G. is authorized to exclude Petitioner pursuant to section 1128(a)(3) of the Social Security Act (Act) and that the five-year exclusion imposed by the I.G. is the minimum mandatory period of exclusion under the Act. Act, section 1128(c)(3)(B).

I. Background

By letter dated September 30, 2005, the I.G. notified Petitioner that pursuant to section 1128(a)(3) of the Act, he was being excluded from participation in Medicare, Medicaid, and all other federally funded health care programs based on a felony conviction. By letter dated November 30, 2005, Petitioner requested a hearing.

On February 24, 2006, I convened a prehearing conference by telephone during which I established a schedule for the parties to submit briefs and proposed exhibits. Counsel for Petitioner was informed that the two issues over which I have jurisdiction are: 1) whether the I.G. has the authority to exclude Petitioner from participation in the Medicare and Medicaid programs; and 2) whether the period of exclusion imposed by the I.G. is reasonable. I also explained that where there is a mandatory five-year exclusion, I do not have the authority to reduce the five-year exclusion period. The parties were informed that the case could be addressed through an in-person hearing or through written submissions. The parties agreed that this case could be decided based on written submissions.

On April 4, 2006, I received the I.G.'s motion for summary affirmance, together with a brief in support of the motion and six exhibits, I.G. Exs. 1-6. On May 6, 2006, I received Petitioner's response to the I.G.'s motion and three documentary exhibits which were labeled as A, B, and C, but which I have marked as P. Exs. 1-3 respectively. I received the I.G.'s reply on June 1, 2006, and closed the record of the case on that date. Neither party filed objections to the exhibits offered by the other party; therefore, I admit I.G. Exs. 1-6 and P. Exs. 1-3 into evidence.

II. Issue

The sole issue in this case is whether the I.G. had a basis upon which to exclude Petitioner. As the I.G. imposed the minimum mandatory period of exclusion, five years, there is no issue as to whether the exclusion is unreasonable. Act, section 1128(c)(3)(B).

III. Findings of Fact and Conclusions of Law

I make findings of fact and conclusions of law (Findings) to support my decision in this case. I set forth each Finding below, in italics, as a separately lettered heading.

A. The I.G. has a legal basis to exclude Petitioner pursuant to section 1128(a)(3) of the Act.

During the relevant period, Petitioner was employed as a pharmacist and/or osteopathic physician and served as chief anesthesiologist at Grandview Hospital. I.G. Ex. 3. On March 17, 2003, a grand jury in the State of Ohio issued a nine-count indictment charging Petitioner with theft of drugs in violation of section 2913.02(A)(2) of the Ohio Revised Code. I.G. Ex. 4. The prosecuting attorney of Montgomery County, Ohio, charged that between January 27, 2003, and January 29, 2003, Petitioner stole dangerous drugs from Grandview Hospital. Id.

On April 1, 2003, Petitioner submitted a Petition for Intervention in Lieu of Conviction with the Common Pleas Court of Montgomery County, Ohio, Criminal Division. I.G. Ex. 5. On April 25, 2003, the presiding judge accepted Petitioner's request for intervention in lieu of conviction subject to the conditions that Petitioner undergo a period of rehabilitation not to exceed three years, complete 100 hours of community service, maintain full-time employment, sign all necessary release of information forms, complete a treatment program, and cooperate with the Ohio Board of Pharmacy. I.G. Ex. 6.

Section 1128(a)(3) of the Act authorizes the I.G. to exclude an individual who has -

been convicted for an offense which occurred after the date of the enactment of the Health Insurance Portability and Accountability Act of 1996 [HIPAA], under Federal or State law, in connection with the delivery of a health care item or service or with respect to any act or omission in a health care program . . . operated by or financed in whole or in part by any Federal, State, or local government agency, of a criminal offense consisting of a felony relating to fraud, theft, embezzlement, breach of fiduciary responsibility, or other financial misconduct.

Petitioner does not dispute the fact that he was convicted of a criminal offense within the meaning of section 1128(i) of the Act. According to Petitioner, "for the purposes of exclusion, the Court's acceptance of Dr. Rosselit's guilty plea and determination of eligibility for Treatment in Lieu of Conviction is a 'conviction under the Act.'" P. Br. at 5. Furthermore, because Petitioner's criminal offense occurred between January 27, 2003, and January 29, 2003, the applicability of section 1128(a)(3) relating to the effective date of HIPAA ⁽¹⁾ is not at issue in this case. I.G. Ex. 4.

The crux of Petitioner's argument is that he was not convicted for a criminal offense in connection with the delivery of a health care item or service. P. Br. at 8-10. Petitioner contends that "no claims were submitted to, or funds received from any Federal, State, or local government agency for [Petitioner's] action, nor can any be inferred." P. Br. at 9. Additionally, Petitioner asserts that there are no "operative facts that can prove the requisite 'delivery of a health care item or service' element as the basis for an exclusion." P. Br. at 9.

I find Petitioner's argument to be without merit. Section 1128(a)(3) specifically states that an individual can be excluded if he is convicted of a felony relating to theft, provided it is in connection with the delivery of a health care item or service. In order to determine whether Petitioner's criminal offense of theft was "in connection with" the delivery of a health care item or service there must be a nexus that links the offense for which Petitioner was convicted to the delivery of a health care item or service. Edward J. Levine, M.D., DAB CR735 (2001). Also, an Appellate Panel of the Departmental Appeals Board (Board) explained in Erik D. DeSimone, R.Ph., DAB No. 1932 (2004), that section 1128(a)(3) of the Act requires a "common sense connection between the offense and the delivery of a health care item or service." DeSimone at 5. For the reasons stated below, I find that there was a "nexus" and a "common sense connection" between Petitioner's criminal offense and the delivery of a health care item or service.

Petitioner was employed by Grandview Hospital; and as chief anesthesiologist and pharmacist, Petitioner was in an exclusive position that gave him unfettered access to the dangerous drugs that he stole. That fact alone, coupled with the specified criminal offense, places Petitioner squarely within the purview of the first part of section 1128(a)(3) of the Act. See Thomas A. Oswald, R.Ph., DAB CR1216 (2004). I am persuaded by the I.G.'s argument that "if it were not for [Petitioner's] employment as an anesthesiologist/pharmacist at the hospital, [Petitioner] would not have had access to the dangerous drugs that he later plead to stealing." I.G. Brief at 8. The very essence of being a pharmacist is dealing with controlled substances and dangerous drugs. Furthermore, as the chief anesthesiologist, Petitioner's access to dangerous drugs is inherent. In the DeSimone case, the Petitioner was a pharmacist at a retail drug store who was convicted of stealing controlled substances from his place of employment. The Board explained in DeSimone that "[i]ndeed, Petitioner was able to steal this drug because he had access to it while he was in the process of performing his professional responsibilities of delivering health care items or services to the general public." DeSimone at 5. In this case, Petitioner had access to the dangerous drugs while he was in the process of performing his professional responsibilities of delivering health care items or services to the general public. Therefore, there is a common sense connection between Petitioner's theft of the dangerous drugs and the delivery of a health care item or service.

The second reason that a nexus exists between Petitioner's criminal offense and the delivery of a health care item or service is that Petitioner provided health care services to patients at Grandview Hospital at the time when he stole the dangerous drugs. I.G. Exs. 3, 4. Petitioner's ability to dispense controlled substances and prescribe dangerous drugs flowed not only from Petitioner's access to these items, but also from his additional responsibility of providing health care services to patients he cared for or served. See Kenneth M. Behr, DAB CR1297 (2005). Thus, Petitioner had a duty to his patients and the patients of the hospital to dispense drugs only when authorized to do so and to deliver the drugs to specific patients when authorized. As the Administrative Law Judge found in Erik D. DeSimone, R.Ph., DAB CR1163 (2004), and the Board affirmed, the theft of a particular dangerous drug from a health care professional's place of employment often has the effect of subverting the delivery by him and his employer of the very same drug to the general public. See DeSimone at 5. Section 1128(a)(3) of the Act protects the general public by restricting health care professionals from depleting the means and methods of delivering health care items or services. This too shows that there is a nexus between Petitioner's theft of the dangerous drugs and the delivery of a health care item or service.

Based on all of the evidence before me, I find that Petitioner's felony conviction relating to theft was in connection with the delivery of a health care item or service. Pursuant to section 1128(a)(3) of the Act, the I.G. is authorized to exclude Petitioner from participation in Medicare, Medicaid, and all other federally funded health care programs.

B. Petitioner's exclusion for a period of five years is not unreasonable.

The Act mandates exclusion of any individual who is convicted of a crime falling under section 1128(a)(3). The minimum mandatory exclusion is for five years. Act, section 1128(c)(3)(B). The I.G. was required to exclude Petitioner because he was convicted of offenses described in section 1128(a)(3). In this case, the I.G. has excluded Petitioner for the minimum mandatory period of five years. Consequently, there is no issue in this case as to whether the length of Petitioner's exclusion is reasonable.

IV. Conclusion

For the foregoing reasons, I conclude that the I.G. properly excluded Petitioner from participation in Medicare, Medicaid, and all federal health care programs for a mandatory period of five years.

Alfonso J. Montano

Administrative Law Judge

1. HIPAA was enacted on August 21, 1996. See HIPAA, Pub.L.No. 104-191, � 211.