SUBJECT:

Rogelio Fernandez, R.Ph.,

Petitioner,

The Inspector General

I sustain the Inspector General's (I.G.) determination, made pursuant to section 1128(b)(4) of the Social Security Act (Act), to exclude Rogelio Fernandez, R. Ph., Petitioner, from participation in Medicare, Medicaid, and other federally funded health care programs. ⁽¹⁾

I. Background

The critical facts of this case are not in dispute. Petitioner was a pharmacist licensed in the State of New York. On April 4, 2002, he filed with the New York State Board of Pharmacy (State Board or licensing authority) an application for a consent order, in which he admitted his guilt on one specification of professional misconduct for failing to supervise adequately his pharmacy. He agreed to a three-year suspension of his license to practice pharmacy. He specifically admitted that on several occasions, while he was the supervising pharmacist, pharmacy employees sold prescription drugs without a prescription. I.G. Exs. 1, 2. On July 18, 2002, the State Board granted his request and suspended his license. I.G. Ex. 3.

By letter dated August 30, 2002, the I.G. notified Petitioner that, pursuant to section 1128(b)(4) of the Act, he was being excluded from participation in Medicare, Medicaid, and all other federally funded health care programs because his license to practice medicine or provide health care in the State of New York had been "revoked, suspended, or otherwise lost" or "was surrendered while a formal disciplinary proceeding was pending before the State licensing authority for reasons bearing on [his] professional competence, professional performance, or financial integrity." The letter advised that program exclusion remains in effect as long as Petitioner's New York license is revoked, suspended, or otherwise lost.

Petitioner timely requested a hearing and the case was assigned to me. I held a prehearing conference by telephone on November 5, 2002. The parties agreed that the matter could be heard and decided based on written submissions. Order dated November 6, 2002; I.G. Ex. 5. Both parties submitted briefs (I.G. or P. Br.) accompanied by documentary evidence. The I.G. filed six exhibits (I.G. Exs. 1 - 6) as part of her submission, and, in the absence of any objection, I admit I.G. Exs. 1-6. Petitioner attached to his brief six unmarked photocopies of newspaper articles describing government settlements in high-profile Medicare cases involving charges of major fraud. The I.G. objected to their admission on the grounds of relevance. I agree that these documents are not relevant to the issue before me and decline to admit them.

II. Issue

The sole issue before me is whether, based on the loss of Petitioner's New York pharmacist license, the I.G. appropriately excluded him from participation in Medicare, Medicaid, and other federally funded health care programs.

III. Findings of Fact and Conclusions of Law

I make findings of fact and conclusions of law (Findings) to support my decision in this case. I set forth each Finding below, in italics, as a separately lettered heading. I discuss each Finding in detail.

A. Because the State licensing authority suspended Petitioner's pharmacist license for reasons bearing on his professional competence or performance, the I.G. may appropriately exclude him from participation in Medicare, Medicaid, and other federally funded health care programs.

The statute authorizes the Secretary to exclude from participation in any federal health care program an individual whose license to provide health care "has been revoked or suspended by any State licensing authority" for reasons bearing on the individual's "professional competence, professional performance, or financial integrity." Act, section 1128(b)(4)(A); see also 42 C.F.R. § 1001.501. Petitioner concedes the suspension of his license by the New York licensing authority. He concedes that the licensing authority cited "professional misconduct" as the reason for its actions. He even acknowledges that he may not collaterally attack the State Board's decision. Nevertheless, he then sets forth his version of the facts underlying the State Board's action - that it stemmed from actions by a pharmacy technician and cashier, who were entrapped by an undercover police officer, and who ultimately suffered minimal repercussions - and suggests that to impose this penalty against him is unfair.

Where, as here, an exclusion is based on the existence of a determination made by another governmental agency, the basis for the underlying determination is not reviewable. 42 C.F.R. § 1001.2007(d); Roy Cosby Stark, DAB No. 1746 (2000). I am required to determine the reasons for the State Board's actions, but not whether its reasoning was valid. The State Board determination plainly articulates that the reason for the suspension was "professional misconduct" (I.G. Ex. 2, at 1), and Petitioner specifically admitted his guilt - "I admit guilt to the one specification of professional misconduct . . . ." I.G. Ex. 1, at 2. I therefore find that Petitioner's pharmacist license was suspended for reasons bearing on his professional performance, and must sustain the exclusion.

B. The I.G.'s exercise of her discretion to impose an exclusion is not reviewable.

Petitioner correctly observes that the I.G.'s determination to impose an exclusion in this case is discretionary, and suggests that the I.G. has abused that discretion. However, the regulations specifically preclude my reviewing the I.G.'s exercise of her discretion to exclude an individual under section 1128(b) of the Act. 42 C.F.R. § 1005.4(c)(5); Brenda Jo Gallagher, DAB CR834, at 4 (2001); Tracey Gates, R.N., DAB No. 1768, at 9 - 10 (2001).

C. The exclusion period may not be less than the period during which Petitioner's pharmacist license is suspended.

Finally, Petitioner points to a number of Civil Remedies Division cases and, without arguing the merits of the administrative law judge's decision in any particular case, complains that they were upheld on appeal. Neither I nor the I.G. has much discretion in determining the duration of an exclusion under section 1128(b)(4) of the Act, since that duration is set by statute. For a person excluded under section 1128(b)(4) of the Act, the statute requires that the period of exclusion "shall not be less than the period during which the individual's or entity's license . . . is . . . suspended." Act, section 1128(c)(3)(E). I therefore have no authority to change the length of the exclusion period. Tracey Gates, R.N., DAB No. 1768, at 9 - 10 (2001).

IV. Conclusion

For the reasons stated above, I conclude that the suspension of Petitioner's pharmacist license related to his professional performance. I therefore affirm the I.G.'s determination and find that the I.G. had a basis to exclude Petitioner from participation in Medicare, Medicaid, and other federal health care programs for an indefinite period pursuant to section 1128(b)(4) of the Act.

Carolyn Cozad Hughes

Administrative Law Judge

1. "Federal health care program" is defined in section 1128B(f) of the Act as any plan or program that provides health benefits, whether directly, through insurance, or otherwise, which is funded directly, in whole or in part, by the United States Government, or any State health care program. "State health care program" is defined in section 1128(h) of the Act and includes the Medicaid program (Title XIX).