Department of Health and Human Services DEPARTMENTAL APPEALS BOARD Civil Remedies Division |
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IN THE CASE OF | |
Dustin Wade Thomasson, |
DATE: August 30, 2001 |
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The
Inspector General
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Docket No.C-01-418 Decision No. CR812 |
DECISION | |
DECISION I find to be excessive the determination of the Inspector
General (I.G.) to exclude Petitioner, Dustin Wade Thomasson, L.P.N., from
participating in Medicare and other federally funded health care programs
for a period of 10 years. I modify the exclusion to a term of six years. I. Background Petitioner is a nurse. On December 29, 2000, the I.G.
excluded Petitioner from participating in Medicare and other federally
funded health care programs for a period of 10 years. The I.G. determined
that Petitioner had been convicted of a felony related to the unlawful
distribution of a controlled substance as is described by section 1128(a)(4)
of the Social Security Act (Act). The I.G. determined further that two
aggravating factors existed in Petitioner's case which supported a 10-year
exclusion. Petitioner opposes the I.G.'s determination. Petitioner
does not deny that a basis exists for excluding him pursuant to section
1128(a)(4). He argues that the length of the exclusion is excessive. He
asserts that the evidence justifies an exclusion of only five years. He
contends, furthermore, that the exclusion should begin to run on May 5,
1999, the date when his incarceration began and he was "taken out of the
health care delivery system." Petitioner's brief
at 8. He also contends that his failure to receive the I.G.'s preliminary
notice is a basis for invalidating his period of exclusion. I held a prehearing conference in this case at which I
directed the parties to file written submissions. The I.G. filed a brief
and nine proposed exhibits (I.G. Ex. 1 - I.G. Ex. 9). Petitioner filed
a brief and eight proposed exhibits (P. Ex. 1 - P. Ex. 8). Additionally,
Petitioner moved for an in-person hearing in the event that I excluded
from evidence any of Petitioner's proposed exhibits. In the absence of
objection, I am receiving into evidence I.G. Ex. 1 - I.G. Ex 9 and P.
Ex. 1 - P. Ex. 8. I find no reason to convene an in-person hearing inasmuch
as I am receiving into evidence all of the parties' proposed exhibits. II. Issue, findings of fact and conclusions of law
The issue in this case is whether a 10-year exclusion
of Petitioner is unreasonable. Section 1128(a)(4) of the Act mandates the exclusion of an individual who is convicted of a felony relating to the unlawful manufacture, distribution, prescription, or dispensing of a controlled substance. There is no issue in this case as to whether a basis exists to exclude Petitioner pursuant to section 1128(a)(4). Petitioner does not deny that he was convicted of such an offense. Furthermore, the I.G. offered evidence to prove that, on April 14, 1999, Petitioner was convicted in the State of Oklahoma of the felony of unlawful distribution of a controlled substance. I.G. Ex. 4 at 1. The facts which underlie Petitioner's conviction are that, in return for a payment of $500, he agreed to transport 10 pounds of marijuana to another individual who was, in fact, an undercover police officer.
I make findings of fact and conclusions of law (Findings) to support my decision in this case. I set forth each Finding below as a separately numbered heading. I explain each Finding in detail.
The minimum exclusion that I must sustain in this case is for a period of five years. The Act requires that an exclusion imposed pursuant to any part of section 1128(a), including section 1128(a)(4), be for a minimum period of five years. Act, section 1128(c)(3)(B).
The Secretary of this Department has published regulations
which govern the length of exclusions that are imposed pursuant to section
1128 of the Act. 42 C.F.R. Part 1001. The regulation which establishes
criteria to govern the length of an exclusion that is imposed under section
1128(a)(4) is 42 C.F.R. � 1001.102. This regulation identifies "aggravating"
factors which may be used, if present in a case, as a basis to lengthen
an exclusion beyond the five-year minimum period and "mitigating" factors
which may be used, if present in a case, to offset any aggravating factors
that are established. The regulation makes it clear that only those factors that it identifies as either aggravating or mitigating may be considered to determine whether an exclusion of more than five years is reasonable in a case involving section 1128(a)(4). The aggravating and mitigating factors operate as rules of evidence in such a case. Evidence which does not relate to an identified aggravating or mitigating factor is irrelevant to determining the length of an exclusion and may not be considered.
Any individual who is excluded has a right to a hearing
before an administrative law judge. Such a hearing is conducted pursuant
to section 205(b) of the Act. That section has been interpreted on numerous
occasions to afford a party who is entitled to a hearing a de novo hearing
and an independent decision by an administrative law judge. That is not to suggest that the administrative law judge is free to ignore entirely the determination that is made by the I.G. The I.G. has expertise in making exclusion determinations and her determinations deserve to be respected. The I.G.'s determination should be sustained as reasonable if that determination falls within a reasonable range of possible exclusions given the evidence that is presented. However, the administrative law judge must evaluate independently the evidence relating to the aggravating and mitigating factors that are set forth in the regulations. If the administrative law judge concludes, based on his or her independent and de novo evaluation of the evidence, that the exclusion imposed by the I.G. departs significantly from that which the administrative law judge decides is reasonable, then the administrative law judge may modify the length of the exclusion to assure that the exclusion falls within a reasonable range of exclusions.
The aggravating factors that the I.G. proved are as follows:
Petitioner was sentenced to a term of 15 years' incarceration (of which five years was suspended) in return for his agreement to plead guilty to the felony charge of unlawful distribution of a controlled substance. I.G. Ex. 4 at 1 - 2. Petitioner's sentence to a term of incarceration comprises an aggravating factor under 42 C.F.R. � 1001.102(b)(5).
On May 24, 2000 Petitioner entered into a consent order
with the Oklahoma Board of Nursing to surrender his license to practice
licensed practical nursing in Oklahoma. I.G. Ex. 7. He entered into that
order in response to a complaint before the Oklahoma Board of Nursing
that emanated from his conviction of unlawful distribution of a controlled
substance. I.G. Ex. 6; see I.G. Ex. 4 at 1. The adverse State action
against Petitioner is based on the same facts as the basis for Petitioner's
conviction and thus comprises an aggravating factor under 42 C.F.R. �
1001.102(b)(9). I note that the I.G. incorrectly averred that Petitioner's
license surrender was an aggravating factor under 42 C.F.R. � 1001.102(b)(8).
I.G.'s brief at 5, 12, 13. However, the I.G.'s intent to identify an aggravating
factor under subsection (b)(9) of the regulation is clear and I find no
prejudice to Petitioner in the I.G.'s misidentification of the section
of the regulation which describes the appropriate aggravating factor.
Petitioner argues that a mitigating factor exists in this
case arising out of the assistance that he provided to prosecuting authorities.
He asserts that the assistance he gave led to the conviction of another
individual. A mitigating factor exists in a case if the excluded individual's
cooperation with federal or State authorities resulted in others being
convicted or excluded from participating in Medicare, Medicaid, and all
other federally funded health care programs. 42 C.F.R. � 1001.102(c)(3)(i).
The regulation requires as a prerequisite to establishing a mitigating
factor that the cooperation that an excluded individual gives to prosecuting
authorities results in the conviction or exclusion of others.
Proof of cooperation will not qualify as a mitigating factor in the absence
of evidence that the cooperation resulted in conviction or exclusion of
others. Petitioner did not prove that he met the criteria for
a mitigating factor under 42 C.F.R. � 1001.102(c)(3)(i). Petitioner provided
to his then-counsel a handwritten list of other individuals who Petitioner
alleged engaged in unlawful conduct regarding controlled substances. Petitioner's
then-counsel turned the list over to prosecuting authorities. P. Ex. 2
at 1 - 2. Subsequently, one of the individuals on the list was convicted
of a controlled substance-related offense. Although this evidence establishes
a degree of cooperation by Petitioner with prosecuting authorities, it
does not prove that his cooperation resulted in anyone's conviction. Petitioner
has offered no evidence that prosecuting authorities used his list to
investigate, prosecute, or convict any other individual. Petitioner argues that additional evidence should serve to mitigate the length of the exclusion that was imposed against him. Among other things he cites his cooperative behavior with authorities, his participation in a voluntary treatment program for substance abuse, and the support of his parole officer, his former employer and other individuals. This evidence is not relevant to deciding whether the exclusion imposed against Petitioner is unreasonable. I may not consider it because it does not relate to any of the mitigating factors delineated under 42 C.F.R. � 1001.102(c).
Although 42 C.F.R. � 1001.102 establishes the sole factors
which may be considered in deciding whether an exclusion is reasonable,
it does not prescribe the weight which is to be given to any factor. The
regulation contains no formula prescribing any exclusion length beyond
the five-year minimum period based on the presence of aggravating factors
or the absence of mitigating factors. The regulation merely identifies
the factors which may be used to lengthen an exclusion beyond the minimum
period. I must look to the purpose of the Act in order to decide
what is the reasonable length of an exclusion where aggravating or mitigating
factors are present in the absence of any statement in the regulation
as to how much weight must be given to an aggravating or mitigating factor.
Section 1128 of the Act is remedial. Its purpose is not to punish the
excluded individual but to protect federally funded health care programs,
and the beneficiaries and recipients of program funds, from an individual
whose conduct establishes him or her not to be trustworthy. In assessing
the length of any exclusion that is imposed under section 1128, the ultimate
issue that must be addressed is: how long of an exclusion is reasonably
necessary to protect programs and their beneficiaries and recipients from
an untrustworthy individual? An individual may not be excluded arbitrarily for a period
of more than five years simply because aggravating factors are present.
The evidence that pertains to those factors must be weighed in order to
establish the degree of untrustworthiness that is manifested by the excluded
individual. An exclusion that is not based on what the evidence shows
about the trustworthiness of the excluded individual may be arbitrary
and unreasonably punitive. In this case the record does not show that the I.G. weighed
the evidence carefully. The I.G. has not advanced any argument - aside
from merely citing the presence of aggravating factors - to justify
the 10-year exclusion that she imposed against Petitioner. I.G.'s brief
at 12 - 14; I.G.'s reply brief at 7 - 9. At first blush the evidence which pertains to the aggravating
factors suggests that Petitioner is a highly untrustworthy individual
who should be excluded for a lengthy period. Petitioner was sentenced
to 15 years' incarceration as a response to his guilty plea (five years
of this sentence were suspended), suggesting that the sentencing judge
found him to be a highly culpable individual. I.G. Ex. 4 at 1; I.G. 5
at 3. Petitioner surrendered his license to practice nursing rather than
face a hearing into allegations relating to his conviction. I.G. Ex. 7. However, there is more to this case than at first meets
the eye. While it is true that Petitioner received a lengthy sentence
for his crime, his actual period of incarceration was rather brief. Petitioner
was paroled after only 17 months' incarceration. P. Ex. 3 at 1; see
Petitioner's brief at 2. On November 16, 2000, the Oklahoma Board of Nursing
reinstated Petitioner's license as a practical nurse subject to conditions
which included his participation in a peer assistance program for nurses
who have alcohol or substance abuse problems. P. Ex. 5; see P.
Ex. 6. Thus, Petitioner's license to practice nursing in Oklahoma was
surrendered only for a period of approximately six months. This evidence, which relates to the two aggravating factors
established in this case, shows Petitioner to be far less untrustworthy
than is indicated by the mere facts of his original sentence and his license
surrender. Obviously, officials in Oklahoma have placed sufficient trust
in Petitioner to release him from custody and to restore his license. Establishing the length of an exclusion is not a task
that lends itself to precise guidelines. Here, however, the evidence shows
that the 10-year exclusion that the I.G. determined to impose is beyond
a reasonable range and is excessive. An exclusion of 10 years would be
reasonable only if the evidence showed that Petitioner manifests a very
high degree of untrustworthiness. The fact that authorities in Oklahoma
have found Petitioner to be worthy of their trust - albeit limited and
carefully conditioned - demonstrates that Petitioner is not so untrustworthy. I modify the exclusion to a term of six years. A six-year exclusion takes into account the nature of Petitioner's crime and the risks that are posed by permitting an individual who has abused controlled substances to treat program beneficiaries and recipients. But, it also takes into account the evidence in this case which shows that Petitioner has worked to regain the trust of Oklahoma authorities.
Petitioner requests that I modify the exclusion so that it begins to run on May 5, 1999, the date his incarceration began and he was taken out of the health care delivery system. I do not have the authority to change the beginning date of an exclusion as Petitioner requests. Therefore, I deny his request
Petitioner asserts that because he failed to receive the I.G.'s preliminary notice the I.G.'s exclusion determination should be invalidated. Even assuming that Petitioner failed to receive the I.G.'s preliminary notice, such failure does not constitute a basis for invalidating the exclusion decision made in his case. I have afforded Petitioner the opportunity to offer de novo any evidence that might be relevant to his case. And, I have made an independent decision as to whether the exclusion that the I.G. determined to impose is unreasonable. Petitioner's assertion that he has been denied the opportunity to present relevant evidence to the I.G. is moot, because Petitioner has had the opportunity to present the identical evidence in this proceeding. |
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JUDGE | |
Steven T. Kessel Administrative Law Judge |
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