Department of Health and Human Services DEPARTMENTAL APPEALS BOARD Civil Remedies Division |
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IN THE CASE OF | |
Edward R. Bennedy, D.C., |
DATE: March 8, 2002 |
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The
Inspector General
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Docket No.C-01-668
Decision No. CR878 |
DECISION | |
DECISION This case is before me pursuant to a request for hearing
filed on May 7, 2001 by Edward R. Bennedy, D.C. (Petitioner). I. Background By letter dated March 30, 2001, the Inspector General
(I.G.) notified Petitioner that he was being excluded from participation
in the Medicare, Medicaid, and all other federal health care programs
as defined in section 1128B(f) of the Social Security Act (Act) for a
minimum period of 10 years. The I.G. informed Petitioner that his exclusion
was imposed pursuant to section 1128(a)(4) of the Act, due to his conviction
(as defined in section 1128(i) of the Act), in the Cortland County Court
of the State of New York, of a criminal offense related to the unlawful
manufacture, distribution, prescription or dispensing of a controlled
substance. I conducted a telephone conference on July 12, 2001. The
I.G. is represented in this case by the Office of Counsel. Although advised
of his right to representation, Petitioner elected to appear on his own
behalf. The parties agreed that the case could be decided based on written
arguments and documentary evidence, and that an in-person evidentiary
hearing was unnecessary. On September 13, 2001, the parties simultaneously
submitted their respective initial briefs (P. Br.; I.G. Br.) and proposed
exhibits. The I.G. filed six proposed exhibits. These have been identified
as I.G. Exhibits (I.G. Exs.) 1-6. Petitioner filed eight proposed exhibits.(1)
These have been identified as Petitioner Exhibits (P. Exs.) 1-8. On October
11, 2001, Petitioner submitted his response brief (P. Resp.) and offered
three additional exhibits. These have been admitted as P. Exs. 9-11.(2)
The I.G. did not file a response brief. Neither party objected to the
admission of the opposition's proposed exhibits. Therefore, I admit into
evidence I.G. Exs. 1-6 and P. Exs. 1-11. It is my decision to sustain the determination of the
I.G. to exclude Petitioner from participating in the Medicare, Medicaid,
and all other federal health care programs, for a period of 10 years.
I base my decision on the documentary evidence, the applicable law and
regulations, and the arguments of the parties. It is my finding that Petitioner
was convicted of a criminal offense related to the unlawful manufacture,
distribution, prescription or dispensing of a controlled substance. Additionally,
I find that his 10-year exclusion is not unreasonable. II. Issues
III. Applicable Law and Regulations Section 1128(a)(4) of the Act authorizes the Secretary of the U.S. Department of Health and Human Services (Secretary) to exclude from participation in any federal health care program (as defined in section 1128B(f) of the Act), any individual convicted under federal or State law, of a criminal offense relating to the unlawful manufacture, distribution, prescription or dispensing of a controlled substance. An exclusion under section 1128(a)(4) of the Act must
be for a minimum period of five years. Act, section 1128(c)(3)(B). Aggravating
factors can serve as a basis for lengthening the period of exclusion.
42 C.F.R. � 1001.102(b). If aggravating factors justify an exclusion longer
than five years, mitigating factors may be considered as a basis for reducing
the period of exclusion to no less than five years. 42 C.F.R. � 1001.102(c). Pursuant to 42 C.F.R. � 1001.2007, a person excluded under
section 1128(a)(4) of the Act may file a request for hearing before an
administrative law judge (ALJ). IV. Findings and Discussion The findings of fact and conclusions of law noted below in italics are followed by a discussion of each finding.
Petitioner was a licensed chiropractor in the State of
New York. I.G. Ex. 5, at 15-16. On April 5, 1999, he was charged with
one count of criminal sale of a controlled substance (cocaine) in the
third degree as defined in New York Penal Law section 220.39(1). I.G.
Ex. 3. On that same date, Petitioner entered a plea of guilty to the charge
of criminal sale of a controlled substance. On May 24, 1999, Petitioner
was sentenced to a five to 15-year term of imprisonment and ordered to
pay restitution in the sum of $220.00. I.G. Exs. 4, 5. It has been established, and Petitioner concedes, that
he was convicted of a criminal offense related to unlawful manufacture,
distribution, prescription, or dispensing of a controlled substance. Petitioner argues that the I.G. cannot, at this point
in time, use the May, 1999 conviction as an additional basis for exclusion
in light of the exclusion imposed on September 30, 1999. By letter dated
September 30, 1999, the I.G. advised Petitioner of his exclusion from
participation in federal and state health care programs based upon section
1128(b)(4) of the Act, which relates to Petitioner's surrender of his
license to practice chiropractic medicine in the State of New York.(3)
P. Ex. 6. Thus, he posits that the current exclusion action undertaken
by the I.G. in March 2001, runs counter to the principles of res judicata
and collateral estoppel. P. Br., at 1-3; P. Resp., at 1-2. Petitioner
further asserts that the I.G. should have included in the exclusion action,
grounded on the revocation of his New York chiropractic license, all issues
relative to the May, 1999 conviction. Having passed up that opportunity,
Petitioner concludes, the I.G. is now foreclosed from bringing an independent
action. In advancing his novel theory, Petitioner overlooks the fact that the exclusion based on the revocation of his license has a life of its own, and is legally distinct from the exclusion based on his conviction for violation of the controlled substance statute. The former of these exclusions is required by section 1128(b)(4) of the Act, while the latter is mandated by section 1128(a)(4) of the Act. In a situation such as the case before me, the I.G.'s exercise of the Congressional authority can be carried out independently, and the exclusion actions undertaken by the I.G. pursuant to these two sections of the Act are not mutually exclusive. Moreover, the Congressional Act directs the I.G. to impose the exclusions noted above, without reference to the limitations suggested by Petitioner.
On March 30, 2001, the I.G. notified Petitioner that he was being excluded from participation in the Medicare, Medicaid, and all federal health care programs for a minimum period of 10 years. I.G. Ex. 1. That action was taken pursuant to section 1128(a)(4) of the Act due to his conviction as defined in section 1128(i). An exclusion under section 1128(a)(4) of the Act must be for a minimum mandatory period of five years as set forth in section 1128(c)(3)(B) of the Act which states:
When the I.G. imposes an exclusion for the mandatory five-year
period, the issue of the length of such exclusion is not considered. 42
C.F.R. � 1001.2007(a)(2). Aggravating factors which justify extending
the exclusion period may be taken into account, but the five-year term
will not be shortened. Petitioner admits that he was convicted of a criminal
offense related to the manufacturing, distribution, prescription or dispensing
of a controlled substance, and that the I.G. was required to exclude him,
pursuant to section 1128(a)(4) of the Act for at least five years. Consequently,
the only issue in controversy is whether the 10-year exclusion period
imposed against Petitioner is unreasonable. The I.G. has discretion to impose an exclusion of more than five years in appropriate circumstances. In Petitioner's case, the I.G. added five years to the statutory five-year minimum.
The aggravating factors that the I.G. may consider in
lengthening a period of exclusion are found at 42 C.F.R. � 1001.102(b).
In the instant case, the I.G. contends that a basis exists for enlarging
the period of exclusion in view of these three factors:
With regard to the first factor, 42 C.F.R. � 1001.102(b)(5)
provides for enlarging the period of exclusion if "the sentence imposed
by the court included incarceration." On May 24, 1999, subsequent to the
entry of a guilty plea, Petitioner was sentenced to 5-15 years at the
New York State Correctional Facility in Elmira, N.Y. I.G. Exs. 4, 5 at
23. Further evidence proves that Petitioner has a prior criminal
record. According to the sentencing transcript, Petitioner was convicted
of criminal sale of a controlled substance in the third degree in 1978,
and in 1990 he was convicted of a criminal possession of a controlled
substance in the seventh degree. I.G. Ex. 5, at 15. Finally, since October 20, 1999, Petitioner has been excluded
under section 1128(b)(4) of the Act as a result of having surrendered
his license to practice chiropractic medicine in the State of New York.
I.G. Exs. 1, 5 at 16, and 6. Petitioner contends that the I.G. cannot use the June
15, 1999 revocation of his New York license as an aggravating factor to
increase the exclusion under section 1128(a)(4) because that action occurred
after his conviction in May, 1999. As such, he argues, it cannot be considered
as a prior sanction. Petitioner relies on the decision in Chris Mark
Spierer, DAB CR360 (1995), to support his supposition. P. Br., at
14-15. Petitioner's reliance on the Spierer decision is misplaced
because the issue in that case concerned the lengthening of the exclusion
period pursuant to 42 C.F.R. � 1001.102(b)(6). In Petitioner's case, the
I.G. used the license revocation action as a factor for extending the
five-year mandatory exclusion pursuant to 42 C.F.R. � 1001.102(b)(9).
This subsection does not refer to "prior criminal, civil, or administrative
sanction record." The requirement under 42 C.F.R 1001.102(b)(9) is that
the adverse action which serves as a basis for lengthening the exclusion
period be "based on the same set of circumstances that serves as the basis
for imposition of the exclusion." It cannot be disputed that the revocation
of Petitioner's New York chiropractic license was based on the same set
of circumstances that led to his controlled substance conviction.(4) Petitioner also argues that the I.G. cannot use his prior convictions for sale and possession of illicit drugs as an aggravating factor because these circumstances are not based on the same set of circumstances as the more recent conviction as required by 42 C.F.R. � 1001.102(b)(9). P. Br., at 17. Petitioner shows confusion as to the subsection of the regulation upon which the I.G. relies. The I.G. used Petitioner's prior drug convictions to lengthen the exclusion period pursuant to 42 C.F.R. � 1002.102(b)(6) and not the subsection he cites. The portion of the regulation relied on by the I.G. only requires that the excluded individual have a prior criminal record. There is no need for the convictions to be based on the same set of circumstances as the conviction that serves as the basis for the exclusion.
Petitioner further suggests that the following three mitigating
circumstances, found at 42 C.F.R. � 1001.102(c), are applicable in this
case:
In this case, the exclusion is based on criminal sale
of a controlled substance and not on a financial loss to a government
program. Therefore, the fact that the offense committed by Petitioner
did not represent a loss to state or federal health care programs does
nothing to diminish the impact of the aggravating factors. Additionally,
Petitioner was not "convicted of three or fewer misdemeanors," but rather
a third degree drug felony. I find specious Petitioner's argument that a mitigating
factor exists because he sold cocaine to finance his addiction. A review
of the sentencing transcript fails to show that the court made a determination
that Petitioner had a mental, emotional or physical condition before or
during the commission of the offense that reduced his culpability. Such
a finding by the court is crucial. It does not suffice that the court
concluded that Petitioner was addicted to drugs. Petitioner's claim that he attempted many times to cooperate with the District Attorney and the police in the apprehension of other larger drug suppliers and was willing to testify in any cases, is baseless, and has no support in the record.
Obviously, Petitioner's conduct is the type that Congress sought to deter for the protection of the beneficiaries of the Federal and State health care programs. It follows that, since Petitioner poses a risk to the welfare of Medicare and Medicaid recipients, his untrustworthiness makes him unfit to participate in any of these programs. I must determine whether the length of exclusion is unreasonable
based on the facts as found by me. In order to make that determination,
I must consider whether the length of the exclusion imposed by the IG
is within a reasonable range. Thus, to determine if the IG's length of
exclusion is unreasonable, I must consider the parties' evidence as it
pertains to the aggravating and mitigating factors delineated at 42 C.F.R.
� 1001.102 and, based upon my findings, if the IG's decision is within
a reasonable range. For the reasons previously stated above and in light of my consideration of the regulatory criteria, I find that the 10-year exclusion imposed by the I.G. is within a reasonable range of possible exclusion periods given the circumstances of this case, in which three aggravating factors were present and no mitigating factors. I find that the five-year additional exclusion imposed by the I.G. is not excessive. The 10-year exclusion is a legitimate remedial remedy, and not punitive(5) as claimed by Petitioner, which is consistent with the purpose of section 1128 of the Act. P. Br., at 11. In essence, the purpose of section 1128 of the Act is to protect federally-funded health care programs and their beneficiaries and recipients from untrustworthy individuals. V. Conclusion Sections 1128(a)(4) and 1128(c)(3)(B) of the Act mandate that Petitioner be excluded from Medicare, Medicaid, and all other federal health care programs for a period of at least five years because of his criminal conviction for an offense related to the unlawful manufacture, distribution, prescription or dispensing of a controlled substance. The I.G. was also justified in lengthening the period of exclusion due to the existence of aggravating factors. The 10-year exclusion is therefore sustained. |
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JUDGE | |
José A. Anglada Administrative Law Judge
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FOOTNOTES | |
1. Petitioner inadvertently misnumbered his proposed exhibits. In actuality, only seven proposed exhibits were submitted with his initial brief. For the sake of clarity, I will refer to each exhibit by the number assigned to the documents by Petitioner. 2. Petitioner had identified the documents he filed with his response brief as Exhibit A, pp.1-3. I have re-labeled them as Petitioner's Exhibits 9-11 in conformity with Civil Remedies Division procedures. 3. Petitioner's license was, in reality, revoked by the I.G. on October 20, 1999, pursuant to section 1128(b)(4) of the Act, after he filed an application to surrender his license to the State of New York in March, 1999. See P. Ex. 3. 4. I have decided elsewhere that the Spierer decision does not stand for the proposition that aggravating factors pursuant to 42 C.F.R. � 1001.102(b)(6) may only be present if they predate the commission of acts that eventually lead to a conviction. Cheryl Elizabeth Richardson, M.D., DAB CR682 (2000). 5. Petitioner requests that I alter the effective date of the 10-year exclusion to begin on September 30, 1999, contending that it would be punitive to commence the period of exclusion on April 19, 1999. P. Br., at 9. I do not have the authority to change the effective date of an exclusion imposed by the I.G. acting within the scope of discretion delegated by statute. Christino Enriquez, M.D., DAB CR119 (1991). | |