CASE | DECISION | JUDGE

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


SUBJECT:

John Boyd Gilleland, III, R. Ph.,

Petitioner,

DATE: February 4, 2003
                                          
             - v -

 

The Inspector General

 

Docket No.C-02-488
Decision No. CR1003
DECISION
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DECISION

Petitioner, John Boyd Gilleland, III, R.Ph., is 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), effective March 20, 2002 based upon his conviction for an offense in violation of 21 U.S.C. § 856(a)(2). There is a proper basis for the exclusion and a five-year exclusion is the minimum allowed by law.

PROCEDURAL HISTORY

Petitioner was notified of his exclusion by letter dated February 28, 2002. The Inspector General (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 appealed the I.G.'s action by letter dated April 23, 2002 arguing that he was not convicted of an offense which subjects him to mandatory exclusion under the Act.

On May 1, 2002 the case was assigned to me for hearing and decision. On July 3, 2002 I conducted a telephonic prehearing conference, the substance of which is memorialized in my order of July 11, 2002. The parties agreed that this case could be decided upon written submissions and documentary evidence and that a hearing may be ordered if I conclude that testimony is required. On August 23, 2002 the I.G. filed a motion for summary affirmance and supporting brief (I.G. Brief), which I have treated as a motion for summary judgment, with attached exhibits (I.G. Exs.) 1 through 6. Petitioner filed his brief in opposition (Brief in Opp.) on October 14, 2002 with Petitioner's exhibits (P. Exs.) 1 through 4. The I.G. filed a reply brief on October 30, 2002. The parties were advised by letter dated December 6, 2002 that the record was closed and that I would proceed to decide the I.G.'s motion. The offered exhibits are admitted without objection.

There are no disputed issues of material fact in this case. The stipulation of fact entered by Petitioner in the criminal prosecution in the United States District Court for the Eastern District of Virginia is admitted as I.G. Ex. 6 and is binding upon the parties in this case. Furthermore, Petitioner does not argue that summary judgment will not lie in this case, but rather argues that his conviction does not subject him to mandatory exclusion under the Act, an issue that must be resolved as an issue of law. The issue presented is whether Petitioner's conviction was the conviction of "a felony relating to the unlawful manufacture, distribution, prescription, or dispensing of a controlled substance." If so, Petitioner is subject to mandatory exclusion pursuant to section 1128(a)(4) of the Act (42 U.S.C. § 1320a-7(a)(4)). If Petitioner's exclusion is mandatory under section 1128(a)(4), the Act specifies that the minimum period of exclusion is five years (Act, section 1128(c)(3)(B); 42 U.S.C. § 1320a-7(c)(3)(B)). Petitioner concedes that the I.G. seeks to impose the minimum period of exclusion authorized and Petitioner waives further argument on the issue of the reasonableness of the period of exclusion. Brief in Opp., at 3. Because the I.G. did not extend the statutory minimum five-year period in this case, there is no issue related to the reasonableness of the period of mandatory exclusion if a mandatory exclusion applies.

Summary judgment is appropriate, and no hearing is necessary in this case for a full and fair disposition. The only issue that exists in this case may be resolved as a question of law.

FINDINGS OF FACT

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

1. Petitioner was a pharmacist licensed by the State of Virginia and authorized to participate in Medicare, Medicaid, or other federal health care programs during the period 1995 through 1997.

2. On March 22, 2001, in the United States District Court, Eastern District of Virginia, Judge Richard L. Williams found Petitioner guilty pursuant to his plea, of one count of"maintaining a building for purpose of distribution of cocaine" during the period 1995 through 1997 as alleged in the criminal information, in violation of 21 U.S.C. § 856(a)(2). I.G. Exs. 2, 3, 5, and 6 (para. 4).

3. Petitioner was sentenced to probation for three years (with drug treatment and monitoring, 30 days intermittent confinement and 180 days home confinement with electronic monitoring), and a special assessment of $100. I.G. Ex. 2.

4. On March 27, 2001 Petitioner's Virginia pharmacist license was suspended. I.G. Ex. 4.

5. Petitioner's Virginia pharmacist license was reinstated, and he was placed on probation on May 8, 2002. P. Exs. 2, 3.

6. By letter dated February 28, 2002 the I.G. advised Petitioner that he was being excluded from further participation in Medicare, Medicaid or other federal health care programs for a period of five years, effective 20 days after the date of the letter, based upon Petitioner's felony conviction of a criminal offense related to the unlawful manufacture, distribution, prescription, or dispensing of a controlled substance.

7. The I.G. cites no aggravating factors in this case that justify a period of exclusion beyond the five-year minimum.

CONCLUSIONS OF LAW

1. Summary judgment is appropriate in this case as there are no material facts in dispute.

2. Petitioner was convicted within the meaning of section 1128(i) of the Act. 42 U.S.C. § 1320a-7(i).

3. Petitioner was convicted, pursuant to his plea, of one count of "maintaining a building for purpose of distribution of cocaine," a violation of 21 U.S.C. § 856(a)(2), which provides it shall be unlawful to "manage or control any building, . . . as an owner, lessee, agent, employee, or mortgagee, and knowingly and intentionally . . . make available for use, with or without compensation, the building . . . for the purpose of unlawfully . . . distributing, or using a controlled substance."

4. The violation of 21 U.S.C. § 856(a)(2), to which Petitioner pled guilty, is a "felony relating to the unlawful . . . distribution . . . of a controlled substance," which is grounds for mandatory exclusion as required by section 1128(a)(4) of the Act (42 U.S.C. § 1320a-7(a)(4)).

5. 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.

DISCUSSION

A. APPLICABLE LAW

Petitioner's right to a hearing by an administrative law judge and judicial review of the final action of the Secretary of Health and Human Services (Secretary) is provided by section 1128(f) of the Act (42 U.S.C. § 1320a-7(f)). Petitioner's request for a hearing was timely filed and I do have jurisdiction. However, the Secretary has by regulation limited my scope of review 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). 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(c).

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.

Pursuant to 21 U.S.C. § 856(a)(2), it is unlawful to:

(2) manage or control any building, room, or enclosure, either as an owner, lessee, agent, employee, or mortgagee, and knowingly and intentionally rent, lease, or make available for use, with or without compensation, the building, room, or enclosure for the purpose of unlawfully manufacturing, storing, distributing, or using a controlled substance.

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).

B. ISSUE

Whether Petitioner was convicted of an offense which subjects him to mandatory exclusion pursuant to section 1128(a)(4) of the Act (42 U.S.C. § 1320a-7(a)(4)).

C. ANALYSIS

1. Summary judgment is appropriate.

Summary disposition is appropriate where either: there are no disputed issues of material fact and the only questions that must be decided involve application of law to the undisputed facts; or, the moving party must prevail as a matter of law even if all disputed facts are resolved in favor of the party against whom the motion is made. A party opposing summary disposition must allege facts which, if true, would refute the facts relied upon by the moving party. See, e.g., Fed. R. Civ. P. 56(c). There are no issues of material fact in dispute in this case. The only issue involves determining whether the nature of Petitioner's federal conviction subjects him to mandatory exclusion pursuant to section 1128(a)(4) of the Act (42 U.S.C. § 1320a-7(a)(4)). No hearing is required for a full adjudication of the issue, and summary judgment is appropriate.

2. Petitioner was properly excluded pursuant to section 1128(a)(4) of the Act because he was convicted of an offense "related to distribution of a controlled substance."

There is no dispute that Petitioner pled guilty to violating 21 U.S.C. § 856(2). Petitioner stipulated that from 1995 through 1997, he allowed a third-party to "distribute drugs" to Petitioner and others at Petitioner's residence that he owned, managed, and controlled. I.G. Ex. 6, paras. 1 - 4. Petitioner cannot collaterally attack his conviction before me and he is bound by the facts to which he stipulated as part of his plea agreement.

Petitioner argues that he was not involved in the distribution of cocaine. However, Petitioner admits that a third-party sold "user quantities to [Petitioner] and two of his friends while at [Petitioner's] home." Brief in Opp., at 12. Petitioner does not explain how the sale of cocaine, even in only a user quantity, is not an unlawful distribution of cocaine. Petitioner asserts that his home was not a "crack house," which is what Congress sought to criminalize in 21 U.S.C. § 856. Neither the plain language of the statute nor the legislative history cited by Petitioner establishes the distinction Petitioner draws. The statute clearly criminalizes allowing manufacturing, storing, distributing, or using a controlled substance in a building, room, or other enclosure one owns or controls. Congress allowed no exception in the plain language of the statute, and the legislative history cited does not support a reading that Congress intended an exception.

Petitioner also argues that the phrase "related to," as used in section 1128(a)(4) of the Act in the context of distribution of a controlled substance, does not include purchases of user quantities by the Petitioner in his own home. Petitioner cites no authority for this proposition. Petitioner's argument also fails to consider that he pled guilty to allowing others to purchase user quantities of cocaine from another in his home and not to just purchasing cocaine himself.

Petitioner is bound by his conviction and his stipulation of fact entered to obtain the benefit of a plea agreement. Petitioner does not dispute that he was convicted of a felony or that cocaine is a controlled substance. Petitioner was, in fact, convicted of allowing distribution of cocaine to himself and others in a building that he owned or controlled, his home. His misconduct is clearly related to the distribution of a controlled substance. Therefore, I conclude that Petitioner was convicted of a felony relating to the distribution of a controlled substance, and mandatory exclusion is required by section 1128(a)(4) of the Act.

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

Petitioner does not challenge that, if mandatory exclusion is required, the Act imposes a minimum exclusion of five years. 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).

The effective date of Petitioner's exclusion is March 20, 2002, 20 days after February 28, 2002 the date of the I.G.'s notice of exclusion. 42 C.F.R. § 1005.20(b).

CONCLUSION

For the foregoing reasons, Petitioner is excluded from participation in Medicare, Medicaid, and all other federal health care programs for a period of five years effective March 20, 2002.

JUDGE
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Keith W. Sickendick
Administrative Law Judge

CASE | DECISION | JUDGE