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Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD
Civil Remedies Division
IN THE CASE OF  


SUBJECT:

Joseph A. Tore, M.D.,

Petitioner,

DATE: December 6, 2002
                                          
             - v -

 

The Inspector General.

 

Docket No.C-02-723
Decision No. CR985
DECISION
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DECISION

Joseph A. Tore, M.D., (Petitioner), was excluded from participation in Medicare, Medicaid, and all other federal health care programs for a period of five years pursuant to section 1128(a)(4) of the Social Security Act (Act) based upon his "conviction" for an offense related to the unlawful manufacture, distribution, prescription, or dispensing of a controlled substance. Based on the evidence before me, I find that the Inspector General (I.G.) has established that there is a proper basis for this exclusion and a five-year exclusion is the minimum allowed by law.

I. Background

Petitioner was notified of his exclusion by letter dated June 28, 2002. The I.G. cited section 1128(a)(4) of the Act (42 U.S.C. � 1320a-7(a)(4)) as the basis for Petitioner's exclusion. Petitioner appeals the I.G.'s action by letter dated July 4, 2002, arguing that he was not convicted within the meaning of the Act.

This case was assigned to me for hearing and decision. On August 28, 2002, I conducted a prehearing conference. During the prehearing conference, the parties agreed that this case could be decided based on written submissions. The I.G. filed its brief with attached exhibits 1 through 6 (I.G. Exs. 1 - 6). Petitioner filed his brief in response.. The I.G. filed a reply brief. No objections were made to any of the exhibits. I admit into evidence I.G. Exs. 1 - 6.

II. Applicable law

Pursuant to section 1128(a)(4) of the Act, the Secretary must exclude from participation in the Medicare and Medicaid programs any individual or entity that has been convicted of a felony criminal offense related to the unlawful manufacture, distribution, prescription, or dispensing of a controlled substance. Section 1128(i) of the Act (42 U.S.C. � 1230a-7(i)) defines the term "convicted" as used in section 1128(a) as follows:

an individual or entity is considered to have been "convicted" of a criminal offense -

(1) when a judgment of conviction has been entered against the individual or entity by a Federal, State, or local court, regardless of whether there is an appeal pending or whether the judgment of conviction or other record relating to criminal conduct has been expunged;

(2) when there has been a finding of guilt against the individual or entity by a Federal, State, or local court;

(3) when a plea of guilty or nolo contendere by the individual or entity has been accepted by a Federal, State, or local court; or

(4) when the individual or entity has entered into participation in a first offender, deferred adjudication, or other arrangement or program where judgment of conviction has been withheld.

Section 1128(i) of the Act.

Section 1128(c)(3)(B) of the Act provides that an exclusion imposed under section 1128(a)(4) of the Act shall be for a minimum period of five years, unless specified aggravating or mitigating factors are present which form the basis for lengthening or shortening the period of exclusion. See also 42 C.F.R. � 1001.102(a), (b), and (c). Only if the aggravating factors justify an exclusion of longer than five years, may mitigating factors be considered as a basis for reducing the period of exclusion to no less than five years. 42 C.F.R. � 1001.102(c).

The standard of proof is a preponderance of the evidence and there may be no collateral attack of the conviction that is the basis for the exclusion. 42 C.F.R. � 1001.2007(c) and (d). Petitioner bears the burden of proof and persuasion on any affirmative defenses or mitigating factors and the I.G. bears the burden on all other issues. 42 C.F.R. � 1005.15(b) and (c).

III. Issue, finding of facts and conclusions of law

a. Issue

The scope of my review is limited to two issues: (1) whether there is a basis for the imposition of the sanction; and, (2) whether the length of the exclusion is unreasonable. 42 C.F.R. � 1001.2007(a)(1). There are no disputed issues of material fact in this case. The only issue in dispute is whether Petitioner was "convicted" within the meaning of section 1128(i) of the Act (42 U.S.C. � 1320a-7(i)). If Petitioner was convicted, then his exclusion is mandatory under section 1128(a) and the Act specifies that the minimum period of exclusion is five years. The I.G. did not extend the statutory minimum five-year period in this case. Thus, there is no issue related to the reasonableness of the period of mandatory exclusion.

b. Findings of fact and conclusions of law

The following findings of fact and conclusions of law are based upon the uncontested and undisputed assertions of fact in the parties' pleadings and the exhibits admitted.

1. At all times relevant to this case, Petitioner held a training certificate in the State of Ohio to practice medicine and surgery. I.G. Exs. 2, 3.

2. On or about June 29, 2000, Petitioner issued a prescription for a controlled substance under a false name and diverted this controlled substance for Petitioner's own use. I.G. Ex. 3, at 4; I.G. Ex. 4.

3. On September 13, 2000, Petitioner was charged by an indictment with one count of Illegal Processing of Drug Documents. I.G. Ex. 4.

4. Petitioner pleaded guilty to this same count on January 16, 2001, and his plea was accepted by the Court of Common Pleas, State of Ohio, Lucas County. I.G. Exs. 5, 6.

5. Following Petitioner's guilty plea, the Court granted Petitioner "Treatment in Lieu of Conviction" as provided by Ohio law (Ohio Revised Code � 2951.041 (2002)) rather than conviction with sentencing. Id.

6. On January 12, 2001, the Court ordered Petitioner to: (i) complete a one year period of probation; (ii) complete appropriate treatment; (iii) submit to random urinalysis with negative results; and (iv) refrain from ingesting any illicit drugs and/or alcohol. I.G. Ex. 6.

7. Upon successful completion of the "Treatment in Lieu of Conviction" program, the Court would dismiss the criminal charges pending against Petitioner. See Ohio Revised Code � 2951.041 (2002).

8. Based on Petitioner's guilty plea, the State Medical Board of Ohio suspended Petitioner's training certificate to practice medicine and surgery in the State of Ohio for a period of six months. I.G. Exs. 2, 3.

9. By letter dated June 28, 2002, the I.G. advised Petitioner that he was being excluded from further participation in Medicare, Medicaid, and all federal health care programs for a period of five years, effective 20 days after the date of the letter, based upon Petitioner's conviction as described in Findings 3 and 4.

10. Petitioner was convicted within the meaning of section 1128(i) of the Act of one count of Illegal Processing of Drug Documents, a violation of section 1128(a)(4) of the Act (42 U.S.C. 1320a-7(a)(4)).

11. Petitioner must be excluded from participation in any federal health care program for a minimum period of five years pursuant to section 1128(c)(3)(B) of the Act (42 U.S.C. � 1320a-7(c)(3)(B)) due to his conviction.

IV. Discussion

1. Petitioner was properly excluded pursuant to section 1128(a)(4) of the Act because he was convicted as that term is defined by section 1128(i) of the Act.

There is no dispute that Petitioner entered a plea of guilty to one count of illegally processing a prescription by making a false prescription to obtain a controlled substance, Ambien, for his personal abuse which he claims was for the treatment of a sleep disorder. The plea was entered and accepted by the Court of Common Pleas, Lucas County, Ohio. I.G. Exs. 5, 6. Petitioner entered into a program for "Treatment in Lieu of Conviction" as allowed by Ohio law (Ohio Revised Code � 2951.041). (1)

The I.G. notified Petitioner that he was excluded from participation in Medicare, Medicaid, and all other federal health care programs pursuant to section 1128(a)(4) of the Act due to his conviction for an offense related to a controlled substance. Petitioner argues that he is not subject to exclusion pursuant to section 1128(a)(4) because he was not "convicted" within the meaning of the Act.

Petitioner focuses in on section 1128(i) of the Act which provides the definition of the term "convicted" as used in section 1128(a)(4), specifically section 1128(i)(4) which provides that an individual or entity is "convicted:"

(4) when the individual or entity has entered into participation in a first offender, deferred adjudication, or other arrangement or program where judgment of conviction has been withheld.

Petitioner argues that "Treatment in Lieu of Conviction" as provided by Ohio law and the program in which he participated does not fall within section 1128(i)(4) of the Act and thus he was not convicted. I note, as did the I.G. in its brief and Administrative Law Judge Sickendick in Handel J. Roberts, DAB CR911 (2002), that there are actually four subsections to section 1128(i), stated in the disjunctive. Section 1128(i)(3) clearly applies in Petitioner's case.

Section 1128(i)(3) of the Act provides that an individual or entity is "convicted" for purposes of section 1128(a) "when a plea of guilty or nolo contendere by the individual or entity has been accepted by a Federal, State, or local court." There is no dispute that Petitioner pled guilty to one felony count of Illegal Processing of Drug Documents and that the Court of Common Pleas accepted that plea of guilty. I.G. Exs. 5, 6. Nothing more is required by section 1128(i) to constitute a conviction. Accordingly, I conclude that Petitioner was "convicted" within the meaning of 1128(a)(4).

Additionally, Petitioner was "convicted" because "Treatment in Lieu of Conviction" is "an arrangement or program where judgment of conviction has been withheld" as described by section 1128(i)(4). This program was found to fit within the meaning of section 1128(i)(4) of the Act in Handel J. Roberts because the program "requires that an offender enter a guilty plea and that the judge find the offender guilty by accepting the guilty plea. If the judge makes other findings consistent with the criteria of the program, the offender can be directed to rehabilitation. If the offender successfully completes the term of rehabilitation, the charges are dismissed and judgment of conviction is not entered on the public record. If the offender fails rehabilitation, then the court enters a finding of guilty and sentences the offender." Handel J. Roberts at 7. Almost identical programs in other states have been found to fit within section 1128(i)(4). See e.g., Robert Mark Armentrout, DAB CR786 (2001); Barbara Hart, DAB CR727 (2001); Patricia Konyeaso, DAB CR827 (2001); Conrad J. Sarnecki, DAB CR722 (2000); Michael P. Hiotis, DAB CR316 (1994).

Petitioner agues that it was not the intent of Congress to include a program such as "Treatment in Lieu of Conviction" as a conviction within the meaning of the Act. I disagree. As stated in Handel J. Roberts, "finding that the Ohio program amounts to a conviction for purposes of section 1128(a)(4), contrary to arguments of Petitioner, is consistent with Congressional intent. Section 1128(a)(4) clearly provides for exclusion of those convicted of felony drug offenses. Section 1128(i)(4) provides for exclusion even for those who go into a diversion program and never have their conviction recorded. Congress draws no distinction in section 1128(i) between diversions related to fraud and drug offenses, although it is clear from the citation to legislative history provided by Petitioner that there was debate on 1128(i). The plain language of the statute is the best expression of Congressional intent and, when the language is clear, as it is in section 1128(i), there is no need to resort to legislative history to attempt to discern a different meaning. Florence Peters, DAB No. 1706 (1999)." Handel J. Roberts at 8.

2. There is no issue related to the reasonableness of the period of exclusion in this case.

The Act specifies a minimum exclusion of five years for an exclusion under section 1128(a)(4). The I.G., the Secretary, and I have no discretion or authority to shorten the five-year minimum exclusion. Act, section 1128(c)(3)(B); 42 U.S.C. � 1320a-7(c)(3)(B).

Thus, there is no issue of reasonableness in this case.

IV. Conclusion

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

JUDGE
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Alfonso J. Montano

Administrative Law Judge

FOOTNOTES
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1. "Treatment in Lieu of Conviction" was formerly known as "Intervention in Lieu of Conviction" under section 2951.041 of the Ohio Revised Code.

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