SUBJECT:

Gerald A. Levitt, D.D. S.,

Petitioner,

The Inspector General.

DECISION

By letter dated June 30, 2004, the Inspector General (I.G.), United States Department of Health and Human Services, notified Gerald A. Levitt, D.D.S. (Petitioner) that he would be excluded from participation in Medicare, Medicaid, and all federal health care programs as defined in section 1128B(f) of the Social Security Act (Act), for a period of five years. The I.G. imposed this exclusion pursuant to section 1128(a)(4) of the Act because of a jury's finding of guilty in the Court of Common Pleas, Stark County, State of Ohio, to the felony charges of Deception to Obtain a Dangerous Drug, in violation of section 2925.22(A) of the Ohio Revised Code. As explained below, I sustain the I.G.'s determination to exclude Petitioner from participating in Medicare, Medicaid, and all federal health care programs for a period of five years.

I. Background

After Petitioner's timely request for hearing on July 13, 2004, to contest the basis for his exclusion, I held a prehearing telephone conference with the parties. Petitioner was advised of his right to counsel in this case but chose to proceed pro se. During the telephone conference, counsel for the I.G. said she planned to file a motion for summary affirmance and believed an in-person hearing would be unnecessary. Petitioner agreed that a decision could be made on the written submissions and exhibits. Thereafter in this proceeding, the following motions and supporting briefs were filed:

�On October 8, 2004, the I.G. filed The Inspector General's Motion for Summary Affirmance and Brief in Support (I.G. Br.).

�On October 27, 2004, Petitioner filed his response (P. Br.).

�On November 9, 2004, the I.G. filed The Inspector General's Reply Brief In Support of Exclusion (I.G. R. Br.).

�Although Petitioner was given until December 3, 2004 to file a sur-reply, Petitioner submitted nothing further.

The I.G. submitted six proposed exhibits (I.G. Exs. 1 - 6). Petitioner submitted no exhibits and did not object to the I.G.'s proposed exhibits. I.G. Exs. 1 - 6 are therefore admitted into the record.

Because I have determined there are no material facts at issue and the only matter to be decided is the legal significance of the facts, I have decided that summary disposition is appropriate. This case can be decided on the basis of the parties' written submissions in lieu of an in-person hearing. See, e.g., Fed. R. Civ. P. 56(c); Garden City Medical Clinic, DAB No. 1763 (2001); Everett Rehabilitation and Medical Center, DAB No. 1628, at 3 (1997) (in-person hearing required where non-movant shows there are material facts in dispute that require testimony).

In issuing this Decision to sustain the I.G.'s imposition of an exclusion against Petitioner, I have considered the record exhibits, the parties' arguments, and the applicable law and regulations.

II. Applicable Law

Under section 1128(a)(4) of the Act, it is mandatory that the Secretary of Health and Human Services (Secretary) exclude from participation in the federal health care programs any individual who has been convicted of a felony criminal offense relating to the unlawful manufacture, distribution, prescription, or dispensing of a controlled substance. Section 1128(c)(3)(B) of the Act provides that a period of exclusion imposed under section 1128(a)(4) shall not be less than five years.

III. Issue

The primary issue in this case is whether a basis exists under section 1128(a)(4) of the Act for Petitioner's exclusion.

IV. The Parties' Contentions

A. The I.G.'s Arguments

The I.G. contends that all of the elements exist that call for Petitioner's mandatory exclusion for the statutory minimum of five years in that: (1) Petitioner was convicted; (2) of a felony; (3) after August 21, 1996; and, (4) the conviction is related to the unlawful manufacture, distribution, prescription, or dispensing of a controlled substance. I.G. Br. at 6 and 7.

B. Petitioner's Arguments

Petitioner contends that he was tried in the Court of Common Pleas, Stark County, Ohio, because he wrote one prescription for Vicodin for Helene Bobbins, his wife, in April 2000, and obtained three refills in August, September, and October of 2000. He asserts that his wife, who has often used her maiden name of Helene Bobbins, has been a dental patient of his for over thirty years and he wrote the prescription at issue to alleviate her temporo-mandibular joint disease. He asserts that he has never taken a controlled substance. He further contends that he was convicted because he had ineffective assistance of counsel at his trial and that the jurisdiction where he was tried may be anti-Semitic. P. Br. at 1-3.

V. Findings of Fact and Conclusions of Law

I discuss my findings and conclusions below each lettered heading.

A. Petitioner was convicted as "conviction" is defined in the Act.

Petitioner was a licensed dentist in the State of Pennsylvania. ⁽¹⁾ I.G. Ex. 6. On February 19, 2002, Petitioner was indicted for five felony counts of Deception to Obtain a Dangerous Drug. IG. Ex. 2. In particular, the indictment charged that Petitioner, from on or about April 12, 2000 until on or about October 3, 2000, wrote prescriptions for the drug Vicodin ES, a dangerous drug, to a false name, in violation of section 2925.22(A) of the Ohio Revised Code. I.G. Exs. 2 and 6. ⁽²⁾

On August 15, 2002, Petitioner was found guilty of four counts, counts 1 - 4, of Deception to Obtain a Dangerous Drug, by a jury in the Court of Common Pleas, Stark County, Ohio. I.G. Ex. 3. On September 9, 2002, Petitioner was sentenced to 11 months of incarceration, and he was ordered to pay a fine of $500 for each count. I.G. Ex. 4.

By statute, a person is "convicted" within the meaning of section 1128(i) of the Act if:

(1) a judgment of conviction has been entered against the individual 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 by a Federal, State, or local court;

(3) when a plea of guilty or nolo contendere by the individual 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.

Act, section 1128(i).

Thus, for purposes of exclusion under section 1128 of the Act, an individual has been "convicted" of a criminal offense when there has been a finding of guilt against the individual or entity by a federal, state, or local court. Act, section 1128(i)(2). Both the guilty verdict and the entry of judgment against Petitioner constitute a conviction within the meaning of section 1128(i) of the Act. Act, section 1128(i)(1) and (2), 42 C.F.R. � 1001.2.

B. Petitioner was convicted of felony offenses that occurred after August 21, 1996.

To exclude an individual under section 1128(a)(4) of the Act, the individual's conviction must be for a felony offense which occurred after the date of the enactment of the Health Insurance Portability and Accountability Act of 1996 (HIPAA). HIPAA was enacted on August 21, 1996. HIPAA, Pub. L. No. 104-191, � 211. Petitioner's conviction was based on activity that occurred on or about April 12, 2000 until on or about October 3, 2000. Thus, Petitioner was convicted of offenses that occurred after August 21, 1996.

C. Petitioner's conviction was for a felony criminal offense relating to the unlawful manufacture, distribution, prescription, or dispensing of a controlled substance.

The Act provides that mandatory exclusion applies to an individual convicted of a felony criminal offense "relating to the unlawful manufacture, distribution, prescription, or dispensing of a controlled substance." Act, section 1128(a)(4). Petitioner was charged with, and was found guilty of, writing prescriptions to a false name for the drug, Vicodin ES, a Schedule III controlled substance, and picking up the prescription for his own use. I.G. Exs. 2 and 6. The charges of deceptively obtaining a dangerous drug are classified as a fifth degree felony under Ohio law. Ohio Rev. Code Ann. � 2925.22(A). ⁽³⁾

Given that Vicodin ES [sic] is a Schedule III controlled substance, by the plain language of Act, section 1128(a)(4), Petitioner's felony criminal offense, as described in the indictment and verdict forms, i.e., "procuring the administration of a prescription for . . . Vicoden ES, a dangerous drug," relates to the unlawful prescription of a controlled substance. I.G. Exs. 2 and 3.

D. For purposes of exclusion, I cannot consider whether Petitioner received a fair trial because I cannot look behind the conviction itself.

Even if I were to accept as true that Petitioner was unfairly convicted because of ineffective assistance of counsel and because those involved in the trial, such as the judge and jury, were prejudiced against him, I cannot look behind the conviction for purposes of this decision. By regulation, collateral attacks on Petitioner's conviction are prohibited. Section 1001.2007(d) of 42 C.F.R. provides that:

When the exclusion is based on the existence of a criminal conviction . . . where the facts were adjudicated and a final decision was made, the basis for the underlying conviction . . . is not reviewable and the individual or entity may not collaterally attack it either on substantive or procedural grounds in this appeal.

An administrative law judge's inability to review the conviction, or relitigate the validity of the conviction, has been consistently upheld by the Departmental Appeals Board. Travers v. Shalala, 20 F.3d 993, 998 (9^th Cir. 1994).

E. The length of exclusion pursuant to section 1128 (a)(4) of the Act is mandatory and cannot be for less than five years.

Once an individual has been convicted of a criminal offense within the meaning of section 1128(a)(4) of the Act, exclusion from participation in Medicare, Medicaid, and all other federal health care programs for a minimum term of five years is mandatory. Act, section 1128(c)(3)(B). By reason of his conviction, Petitioner was subject to, and the I.G. was required to impose upon him, mandatory exclusion from participation in Medicare, Medicaid, and all other federal health care programs for a period of not less than five years. Id. The I.G.'s exclusion of Petitioner for the minimum mandatory period of five years is supported by fact and law, and is therefore reasonable and proper.

VI. Conclusion

The I.G. has shown by a preponderance of the evidence all four elements required for exclusion under section 1128(a)(4) of the Act. Petitioner was convicted of an offense which occurred after the date of the enactment of HIPAA, under federal or state law, of a criminal offense consisting of a felony relating to the unlawful manufacture, distribution, prescription, or dispensing of a controlled substance.

For the foregoing reasons, I sustain Petitioner's exclusion from participation in Medicare, Medicaid, and all federal health care programs for a period of five years.

Anne E. Blair

Administrative Law Judge

1. Petitioner obtained the drug, Vicodin ES, from a pharmacy in the City of Canton, Stark County, Ohio.

2. As part of this indictment, Petitioner was also charged with writing a prescription for Lorazepam for himself on November 7, 2000. I.G. Ex. 2, at 3. The record contains no evidence that Petitioner was convicted of this count of the indictment.

3. Vicodin ES, a hydrocodone combination, is a Schedule III controlled substance pursuant to Ohio law (Ohio Rev. Code Ann. �� 3719.41, 3719.43 and 3719.44, adopting federal scheduling of controlled substances). See http://www.deadiversion.usdoj.gov.