Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD
Civil Remedies Division

The I.G. submitted five proposed exhibits (I.G. Exs. 1 - 5). Petitioner submitted no exhibits and did not object to the I.G.'s proposed exhibits. I.G. Exs. 1 -5 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. The 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 Center, DAB No. 1763 (2001); Everett Rehabilitation and Medical Center, DAB No. 1628, at 3 (1977) (in-person hearing required where non-movant shows there are material facts in dispute that require testimony).

In making 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 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. Issues

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

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.

Petitioner contends that he was not convicted as defined in 42 U.S.C. § 1320a-7(i) because the court did not enter his guilty plea due to his participation in "intervention in lieu of conviction." According to Petitioner, his guilty plea pursuant to O.R.C. § 2951.041 specifically provides that it is not a ". . . criminal conviction for purposes of any disqualification or disability imposed by law . . ." Secondly, Petitioner argues that the charges against him did not relate to the unlawful manufacture, distribution, prescription, or dispensing of a controlled substance because the charges against him were for his theft and possession of controlled substances. Third, Petitioner argues that an exclusion would violate his rights under the Americans with Disabilities Act.

V. Findings of Fact and Conclusions of Law.

I discuss my findings and conclusions below each lettered heading.

Petitioner was a licensed physician in the State of Ohio. I.G. Ex. 5. On February 6, 2002, Petitioner was indicted for ten felony counts in violation of O.R.C. §§ 2913.02(A)(1) & (B)(6) and 2925.11(C)(1)(a); and six misdemeanor counts in violation of O.R.C §§ 4729.51(C)(3) and 2925.11(C)(2)(a). CMS Ex. 2, at 8. In particular, the indictment charged Petitioner with stealing Diprivan, Versed, and Fentanyl from Trinity West Medical Center in Steubenville, Ohio, and possessing the drugs. Fentanyl is a Schedule II controlled substance and Versed is a Schedule IV controlled substance. CMS Ex. 2.

On March 18, 2002, Petitioner appeared before Judge Joseph J. Bruzzese, Jr., of the State of Ohio, Common Pleas Court of Jefferson County. The court found that drug or alcohol usage was a factor leading to Petitioner's criminal behavior and that Petitioner was qualified for "intervention in lieu of conviction" pursuant to O.R.C. § 2951.041(A)(1). I.G. Ex. 4. In finding Petitioner eligible for intervention in lieu of conviction, the court "has accepted [Petitioner's] plea of guilty." Id. The court also stayed all criminal proceedings against Petitioner pursuant to O.R.C. § 2951.041(C). Id. Petitioner was not "sentenced." He was placed under the control of the Jefferson County Adult Probation Department and the Shepard Hill (abuse) Program for a period of two years. Id.

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

42 U.S.C. § 1320a - 7(i).

Under Ohio law, if an offender is charged with a criminal offense and the court has reason to believe that drug or alcohol usage was a factor leading to the offender's criminal behavior, the court may accept, prior to the entry of a guilty plea, the offender's request for intervention in lieu of conviction. O.S.C. § 2951.041. An offender may be eligible for the intervention program if inter alia the offender is a first-time offender; if the offender's alleged felony is not of the 1^st, 2^nd or 3^rd degree, and is not a violent offense; the offense does not have a mandatory sentence; drug treatment would substantially reduce the likelihood of any future criminal activity; the alleged offense did not result in physical harm to any person; and, the offender was not previously treated for drug abuse. Id.

The applicable Ohio law further provides that if the court finds that the offender is eligible for intervention in lieu of conviction and grants the offender's request:

O.R.C. § 2951.041(C).

At O.R.C. § 2951.041(E), the Ohio statute expressly provides that:

The question Petitioner presents is whether Ohio's intervention in lieu of conviction program in which he participated fits within the statutory definition of "conviction" as set forth in the Act.

A number of states have devised alternative criminal plea programs which, among other things, lessen the stigma of criminal conviction. The Act was amended specifically to include the alternative programs within the definition of conviction for exclusion purposes; i.e., the Act expressly includes first offender, deferred adjudication, and other arrangements or programs where judgment of conviction has been withheld. 42 U.S.C. § 1320a - 7(i). The Administrative Law Judges of the Departmental Appeals Board (DAB ALJs) have previously considered such programs in the context of the exclusion provisions of the Act. The decisions are inclusive in holding that programs of a nature described in § 1320a - 7(i) are convictions under the Act. Carlos E. Zamora, M.D., DAB CR22 (1989) aff'd DAB No. 1104(1989); Benjamin P. Council, M.D., DAB CR391 (1995); Conrad J. Sarnecki, D.O., DAB CR722 (2000).

Petitioner, however, points to the language in the Ohio statute that his intervention plan in lieu of conviction is without adjudication of guilt and is not a criminal conviction. He argues, therefore, that it cannot serve as the basis of an exclusion. Petitioner contends that Ohio's intervention plan is neither a deferred adjudication plan, because nothing was adjudicated, nor a first offender program in that eligibility for intervention is entirely different than a first offender program; nor a judgment of conviction that has been withheld because he had no judgment of conviction in the first place.

On the contrary, the language of O.R.C. § 2951.041, e.g., "the court shall accept the offender's plea of guilty" and "the court shall dismiss the proceedings against the offender" [if the offender completes a treatment program successfully], compared with the plain language of the Act shows that Ohio's intervention in lieu of conviction fits precisely within the definition of conviction. First, the Ohio court had to accept Petitioner's guilty plea in order to enroll him in the intervention program. Thus, Petitioner's situation fits within Section 1128(i)(3) of the Act. Moreover, Ohio's intervention in lieu of conviction program will result in the conviction of the participant if the participant fails to abstain from drugs and/or alcohol for a specified period of time. Ohio's intervention in lieu of conviction is clearly an "other arrangement or program where judgment of conviction has been withheld," and, thus, fits within the language of Section 1128(i)(4). Thus, Petitioner was convicted as conviction is defined in the Act.

Petitioner contends, however, that Congressional intent in adding deferred adjudication and first offender programs to the definition of conviction in the Act [ 42 U.S.C. § 1320a-7(i)(4)] was to insure only that individuals facing criminal charges for defrauding the Medicare program would not escape mandatory exclusion. The change in the Act was made, according to Petitioner, to protect the financial integrity of the program. Congress did not intend to include individuals who went into treatment in lieu of conviction for substance abuse. P. Br., at 5-6.

The DAB has not interpreted so restrictively the Congressional intent in adding deferred adjudication, et al, to the definition of conviction. The DAB has upheld exclusions for convictions as described in Section 1128(i)(4) of the Act for crimes that are not financial. Naranda M. Patel, DAB No.1736 (2000)(sexual abuse); Conrad Sarnecki, D.O., DAB CR722 (2000)(drug use); Eleanor D'Angelo, L.P.N., DAB CR748 (neglect and abuse). Had Congress intended to specify different definitions of conviction for financial as opposed to other types of crimes, Congress surely would have done so. Petitioner's argument is unpersuasive.

Petitioner also refers to language from O.R.C. § 2951.041, quoted above, to support his argument that the intervention in lieu of conviction plan in which he participated cannot be used for the purpose of any disqualification or disability imposed by law and upon conviction of a crime. He argues that exclusion from federal health care programs is prohibited as that would be a disqualification or disability imposed by law. Petitioner concludes, therefore, that the intervention plan cannot form the basis for an exclusion under the Act.

Similar arguments have been made previously in similar exclusion cases and have been found without merit. The I.G.'s decision to exclude a petitioner from all federal health care programs is a matter governed by federal law based on the Supremacy Clause of the United States Constitution. Congress determined in the statutory definition of conviction that arrangements as described in Section 1128(i) of the Act were to be considered convictions for purposes of the federal exclusion law, even if they were not convictions under state law. Janet Wallace, L.P.N., DAB No. 1326 (1992); Diane Amicucci, L.P.N., DAB CR540 (1998); Michael P. Hiotis, DAB CR316 (1994). A state cannot bar enforcement of a federal law in contravention of the Supremacy Clause. If a state program fits the definition of conviction specifically set forth in a federal law, it will be a conviction for purposes of that statute regardless of the language of the state law. Hiotis, DAB CR316, at 10-11.

Petitioner makes another interesting argument to support his contention that his intervention in lieu of conviction does not fit within the Act. He concedes he is indeed subject to exclusion by the Secretary pursuant to 42 U.SC. § 1320a-7(b)(4) as a result of his mandatory license suspension. Petitioner's license to practice medicine was suspended on April 10, 2002. Under O.R.C. § 3719.121, the State Medical Board of Ohio is required to suspend the medical license of anyone accepted into the treatment in lieu of conviction program. I find Petitioner's argument inapposite in that simply because he can be excluded under another of the exclusion provisions does not respond to whether or not he was convicted as defined in the Act.

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." 42 U.S.C. § 1320a-7(a)(4). Petitioner argues that even if he was convicted, his conviction was for a theft offense and drug possession. He was not charged with the unlawful manufacture, distribution, prescription, or dispensing of a controlled substance. P. Br., at 8.

If Congress intended to only require exclusion for the specific crimes of the unlawful manufacture, distribution, prescription or dispensing of a controlled substance, Congress would not have included in the Act the "relating to" language. I read the language of Section 1128 as manifesting Congress' intention to be more inclusive than only referring to exact specified offenses.

Eleven subsections of Section 1128(a) of the Act use the term "relating to" in setting forth the activities that trigger mandatory exclusions. For purposes of other subsections, e.g., a crime that is "related to" Medicare or Medicaid, DAB ALJs have found that whether the required relationship exists must be a common sense determination based on all relevant facts as determined by the finder of fact, not merely a narrow examination of the language within the four corners of the final judgment and order of the criminal trial court. Teri L. Gregory, DAB CR336 (1994), emphasis added.

In this case, the charging documents against Petitioner do not provide much detail about what occurred. I.G. Ex. 2. The indictment stated that, on or about November 13, 2001, "with purpose to deprive the Trinity West Medical Center, " Petitioner knowingly obtained without consent and possessed various dangerous drugs and controlled substances. Id. On the other hand, a notice of suspension letter sent to Petitioner by the State Medical Board of Ohio is far more descriptive of what actually happened. I.G. Ex. 5. While the events described in this letter are not within the four corners of his indictment and conviction, and carry less weight as a result, Petitioner did not contest either the admission of the letter into the record or what was described in the letter. The letter is instructive in determining whether the required relationship exists between the acts for which Petitioner was convicted and the statutory language of Section 1128(a)(4).

According to the notice of suspension letter, Petitioner, beginning in October 2000, while he was practicing as an anesthesiologist in Canton, Ohio began to self-administer Fentanyl, a Schedule II controlled substance, and Versed, a Schedule IV controlled substance, and Diprivan, a dangerous drug, while on duty as an anesthesiologist. He obtained the drugs for his own use by appropriating them from the anesthesiology narcotic cabinet and cart at Mercy Medical Center by overstating actual patient dosage and self-administering the excess. On November 23, 2000, Petitioner was found unconscious from an overdose of drugs while he was waiting for the next surgical patient scheduled for his anesthesia services. I.G. Ex. 5, at 2.

Later in August 2001, after relocating to Trinity West Hospital as a staff anesthesiologist, Petitioner began to self-administer Diprivan, Fentenyl and Versed while on duty as an anesthesiologist. Petitioner used the same method of taking the drugs from the hospital narcotic cabinet and overstating patient dosage and self-administering the excess. Around November 13, 2001, Petitioner overdosed and was found unconscious in a public restroom at the hospital. At the time of the overdose, Petitioner was responsible for supervising a nurse anesthetist who was administering anesthesia to a surgical patient. I.G. Ex. 5, at 2. Petitioner was thereafter diagnosed with major depression and drug abuse and was admitted to a long term treatment program for chemical dependence. Id.

I find there is a common sense nexus between what Petitioner was convicted of and the dispensing of controlled substances. In the act of dispensing controlled substances to surgical patients, Petitioner overstated the amount of substances "dispensed" and "dispensed" the remainder to himself. What Petitioner was convicted of related to the dispensing of controlled substances in two ways. First, Petitioner was convicted for stealing drugs that should have been used to dispense to patients, and second, he was convicted of possessing; i.e., dispensing the drugs to himself. See, Conrad J. Sarnecki, D.O., DAB CR722 (2000).

In his brief, Petitioner submitted a definition of "dispensing" found in the Controlled Substance Act, 21 U.S.C. § 802(10), as meaning to deliver a controlled substance to an ultimate user through a lawful order of a practitioner, including the prescribing and administering of a controlled substance. Petitioner argues, therefore, that because he was the "practitioner" and he stole the drugs and administered them to himself, he was not involved in - and was not convicted of - manufacturing distributing, prescribing or dispensing the drugs. P. Br., at 8-9. On the contrary, Section 1128 (a)(4) requires that the criminal offense forming the basis of the exclusion "relate to" the manufacture, distribution, prescription or dispensing of the drugs. Petitioner, as a staff surgical anesthesiologist, had the responsibility to prescribe and administer controlled substances to his patients. He dispensed such substances as a matter of course in his profession. The criminal offenses of which he was convicted all related to his professional activities of prescribing and administering controlled substances. I must find that his criminal offenses related to the dispensing of controlled substances.

The evidence is clear that the offenses for which Petitioner was convicted, as defined in the Act, all occurred after August 21, 1996, the date of enactment of the Health Insurance Portability and Accountability Act of 1996. Pub. L. No. 104-191 § 211. The indictment refers to occurrences in September, October and November of 2001. I.G. Ex. 2. See also, I.G. Ex. 5.

The offenses for which Petitioner was convicted included eight counts of theft of a dangerous drug or controlled substance, a fourth degree felony under the State law of Ohio, and two counts of possession of a dangerous drug or controlled substance, a fifth degree felony under the State law of Ohio. O.RC. § 2913.02(A)(1) & (B)(6); O.R.C. § 2925.11(C)(1)(a). He was, therefore, convicted of a felony under State law. I.G. Ex. 4, at 2.

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 the Health Insurance Portability and Accountability Act of 1996, 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.

Petitioner argues that he had sought and completed participation in a supervised drug rehabilitation program at the time of the exclusion. Because he is no longer using drugs, he contends he is a qualified individual with a disability protected by the Americans with Disabilities Act (ADA) pursuant to 42 U.S.C. § 12132. A denial of an opportunity to participate in federal health care programs, therefore, according to Petitioner, is a violation of the ADA.

Administrative law judges are limited in the types of claims they may adjudicate. See 42 C.F.R. § 1005.4(c)(1) and (5). Administrative law judges have no statutory or regulatory authority to find invalid or refuse to follow federal statutes or regulations. DAB ALJs cannot decide claims arising under other federal statutes such as the ADA. The DAB has concluded that for an ALJ to reverse an exclusion as violative of the ADA would require the ALJ to either find section 1128 invalid or to refuse to follow its requirements. Tracey Gates, R. N., DAB No. 1768 (2001). The regulations specifically preclude the ALJ from doing either. Id.

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. Section 1128(c)(3)(B) of the Act. 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.

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