SUBJECT:

Diane C. Turner, M.D.,

Petitioner,

The Inspector General.

DECISION

By letter dated February 28, 2003, the Inspector General (I.G.), United States Department of Health and Human Services, notified Diane C. Turner, M.D., (Petitioner), that she would be excluded from participation in the 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 1128(a)(4) of the Act, because of Petitioner's felony conviction in the United States District Court for the District of Wyoming of a criminal offense related to the unlawful manufacture, distribution, prescription, or dispensing of a controlled substance. 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 a hearing to contest the exclusion and her request for a continuance due to a personal tragedy, I held a prehearing telephone conference with the parties on July 30, 2003. During the telephone conference, the I.G. said she planned to file a motion for summary judgment and believed an in-person hearing would be unnecessary. I reserved judgment on the necessity of an in-person hearing pending receipt of the parties' briefs and proposed exhibits.

Thereafter, in this proceeding, the following motions and supporting briefs were filed.On September 8, 2003, the I.G. filed the Inspector General's Motion for Summary Affirmance and Supporting Brief (I.G. Br.). After several extensions, on March 3, 2004, Petitioner filed Petitioner's Memorandum in Response to Inspector General's Motion for Summary Affirmance (P. Br.). On March 29, 2004, the I.G. filed Inspector General's Reply Brief (I.G. R. BR.). The I.G. submitted five proposed exhibits (I.G. Exs. 1- 4). Petitioner submitted no proposed exhibits. Petitioner did not object to the I.G.'s proposed exhibits and they 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. Even if I were to assume all facts as alleged by Petitioner, my decision would not change. Petitioner's credibility is not at issue. Therefore, 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. Rule 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 an exclusion imposed under section 1128(a)(4) shall not be less than five years.

III. Issues

Two primary issues are presented in cases of this type: (1) whether a basis exists under section 1128(a)(4) of the Act for Petitioner's exclusion; and (2) whether the length of the exclusion is reasonable.

IV. The Parties' Contentions

A. Petitioner's Arguments

The Petitioner presents three main arguments. First, she contends that the circumstances surrounding the offense for which she was charged were related to her medical condition, its treatment and her subsequent addiction to pain relieving substances. P. Br. at 2. Second, she argues that the public at large will suffer because she provides scarce, specialized medical services for her community. Third, she argues that she is in the process of requesting a waiver of exclusion from the State of Wyoming health care program based upon her skills and the relative scarcity of oncology specialists in the community she serves and it would be a waste of judicial resources to exclude her while her waiver request is pending. Id. at 2-3.

B. 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 (4) that is related to the unlawful manufacture, distribution, prescription, or dispensing of a controlled substance. The I.G. contends that the Act mandates an exclusion of no less than five years and that Petitioner's waiver request is irrelevant to this proceeding; an ALJ has no authority to review the waiver request and the ALJ cannot hold the case in abeyance until the waiver matter has been settled.

V. Findings of Fact and Conclusions of Law

Because this Decision is made pursuant to a Summary Affirmation motion, I have accepted the facts alleged by Petitioner in her brief even though she provided no evidence in support of the allegations. See, Findings 2-6, 11, and 12, infra.

1. At all times relevant to this proceeding, Petitioner was a licensed physician practicing in the State of Wyoming. I.G. Ex. 2, at 2.

2. Petitioner is Board Certified in Oncology and Hematology. P. Br. at 1.

3. In 1996, Petitioner was diagnosed with Systemic Lupus Erythematosus (SLE). P. Br. at 1.

4. In October 1998, Petitioner's SLE was exacerbated and she experienced Raynaud's Syndrome which resulted in extreme pain in her fingers. Morphine was prescribed for Petitioner to deal with her pain. Petitioner continued to suffer from periodic exacerbations of her condition and her pain symptoms were again treated with morphine. The severity of Petitioner's pain led her to take substantial doses of morphine. P. Br. at 1-2.

5. Petitioner became physically addicted to pain-relieving medications. P. Br. at 2.

6. Petitioner began to obtain extra-legal prescriptions of morphine and did so throughout 2000 and 2001. P. Br. at 2.

7. In January 2002, Petitioner entered into a plea agreement with the United States that she signed and was accepted in February 2002. She agreed to plead guilty to an information alleging she had acquired or obtained possession of a controlled substance by misrepresentation, fraud, forgery, deception or subterfuge, in violation of 21 U.S.C. § 843(a)(3), a violation classified as a class "E" felony pursuant to 18 U.S.C. § 843(d)(1). I.G. Ex. 3, at 2.

8. On February 20, 2002, the Wyoming Board of Medicine and the Petitioner entered into an amended consent decree providing that Petitioner would surrender her license to practice medicine in Wyoming and would be prohibited for six months from petitioning the Board for reinstatement. I.G. Ex. 5.

9. On April 8, 2002, an information was filed, as previously agreed, charging Petitioner with one felony count of unlawfully acquiring or obtaining Oxycodone, a Schedule II controlled substance, by misrepresentation, fraud, forgery, deception, and subterfuge, in violation of 21 U.S.C. § 843(a)(3). I.G. Ex. 2, at 1. The information charged Petitioner with illegally altering an Oxycodone prescription by changing the number of tablets prescribed from 25 to 125. Id.

10. On July 9, 2002, a U.S. District Judge accepted Petitioner's guilty plea and entered judgment against her. I.G. Ex. 4, at 1. She was placed on probation for two years and was fined $2000. Id. at 2.

11. Petitioner underwent intensive treatment for her substance abuse and other related physical, emotional and mental conditions. P. Br. at 2. The Wyoming Board of Medicine recently reinstated her license to practice medicine. Id.

12. Petitioner is in the process of requesting that the State of Wyoming's health care program request a waiver of her exclusion because of the relative scarcity of oncology specialists in the community served by her. P. Br. at 3-4.

13. The I.G. has proved all necessary elements for sustaining Petitioner's exclusion for five years; i.e., (1) Petitioner was convicted (2) of a felony (3) after August 21, 1996 (4) that is related to the unlawful manufacture, distribution, prescription, or dispensing of a controlled substance.

a. Petitioner was convicted as conviction is defined in the Act.

Under section 1128(i)(2) of the Act, an individual is considered to have been convicted "when there has been a finding of guilt against the individual . . . by a Federal . . . court." 42 U.S.C. § 1320a-7(i)(2). Further, section 1128(i)(3) defines conviction to include "when a plea of guilty or nolo contendere by the individual . . . has been accepted by a Federal . . . court." 42 U.S.C. § 1320a-7(i)(3).

The evidence shows - and Petitioner does not deny - that she pleaded guilty to an information alleging that she acquired or obtained possession of a controlled substance by forgery, fraud, deception, or subterfuge, in violation of 21 U.S.C. §843(a)(3). I.G. Ex. 4, at 1. A judgment that Petitioner was guilty to the charge was entered by the United States District Court, District of Wyoming. This judgment or finding of guilt by the court constitutes a conviction within the meaning of section 1128(i)(2) of the Act. Id. Further, the court accepted Petitioner's plea of guilty. Id. Thus, Petitioner was convicted as conviction is defined in section 1128(i)(3) of the Act. Petitioner was convicted as conviction is defined for purposes of an exclusion under section 1128(a)(4) of the Act.

b. Petitioner was convicted of a felony offense.

Under federal criminal law, a felony offense is any criminal offense punishable by imprisonment for a term exceeding one year. 18 U.S.C. § 1. The offense to which Petitioner pled guilty, that is, possession of a controlled substance by misrepresentation, fraud, forgery, deception, or subterfuge, is an offense punishable by up to four years imprisonment. 21 U.S.C. § 843(d)(1). Thus, even though Petitioner was not sentenced to incarceration, the offense for which she pled guilty carried a possible sentence of over one year of imprisonment and is defined as a felony. She was convicted of a felony offense.

c. Petitioner's felony offense occurred after August 21, 1996.

For exclusion, the Act requires an individual's conviction to be for a felony offense that occurred after the date of enactment of the Health Insurance Portability and Accountability Act of 1996 (HIPAA). The date of HIPAA's enactment was August 21, 1996. HIPAA, Pub.L. No. 104-191, § 211. Petitioner pled guilty to activity that occurred on or about August 23, 2001. I.G. Exs. 1 and 4, at 1. Thus, Petitioner's criminal offense was after the date of HIPAA's enactment, August 21, 1996.

d. The felony offense for which Petitioner was convicted related to the unlawful prescription of a controlled substance.

Section 1128 of the Act states that the Secretary shall exclude "[A]ny individual or entity that has been convicted . . . of a criminal offense consisting of a felony relating to the unlawful manufacture, distribution, prescription, or dispensing of a controlled substance." 42 U.S.C. § 1320a-7(a)(4).

As charged in the Information and as accepted by the Petitioner in her guilty plea agreement, the Petitioner altered a prescription she had obtained for Oxycodone, a controlled substance, from Dr. Don Quyen Thai, M.D., by changing the prescribed number of tablets from 25 tablets to 125 tablets. I.G. Ex. 2, at 1; I.G. Ex. 3, at 4-5. Pursuant to her guilty plea, Petitioner admitted she obtained a Schedule II controlled substance through misrepresentation, fraud, forgery, deception and subterfuge. 21 U.S.C. § 843(a)(3).

All subsections of Section 1128(a) of the Act use the term "relating to" in setting forth the activities that trigger mandatory exclusions. Whether a crime is related to the unlawful manufacture, distribution, prescription, or dispensing of a controlled substance, must be a common sense determination based on all relevant facts. In this case, the act Petitioner admitted she engaged in was altering a prescription. I.G. Ex. 2, at 1; I.G. Ex. 3, at 4-5. Petitioner's altering of the prescription was expressly "relating to" an activity - prescription - that triggers an exclusion under Section 1128(a)(4) of the Act. Other ALJs at the Departmental Appeals Board have concurred that altering a prescription to obtain additional quantities of a controlled substance is related to the unlawful prescription of a controlled substance within the meaning of section 1128(a)(4) of the Act. See, e.g., Kathleen E. Talbot, M.D., DAB CR772 (2001).

For the foregoing reasons, I find that Petitioner was convicted for an offense which occurred after the date of the enactment of the HIPAA 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. 42 U.S.C. § 1320a-7(a)(4).

14. Petitioner must be excluded for five years. The length of exclusion for Section 1128 (a)(4) of the Act is mandatory and cannot be for less than five years.

I have accepted all facts proffered by Petitioner in her brief in explanation of her commission of the felony offense at issue. She unfortunately suffers from SLE and was in a great deal of pain and became addicted to pain-relieving medications in order to cope with her physical and mental illnesses. These circumstances are not relevant, however, in light of the fact that Petitioner is subject to a mandatory exclusion under section 1128(a) of the Act. 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 her conviction, Petitioner was subject to, and the I.G. was required to impose upon her, mandatory exclusion from participation in Medicare, Medicaid, and all other federal health care programs for a period of not less than five years. Section 1128(c)(3)(B) of the Act. 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.

While the I.G. must impose the five-year minimum mandatory term of exclusion, she is authorized, at her discretion, to enlarge the term. See 42 C.F.R. § 1001.102. The I.G. may extend the five-year period if certain specified aggravating factors are demonstrated. Those aggravating factors are defined in detail at 42 C.F.R. §§ 1001.102(b)(1)-(9). And, in the clear language of 42 C.F.R. § 1001.102(c):

Only if any of the aggravating factors set forth in paragraph (b) of this section justifies an exclusion longer than 5 years, may mitigating factors be considered as a basis for reducing the period of exclusion to no less than 5 years. ⁽¹⁾

If the I.G. had decided to impose a longer exclusion based on specified aggravating factors, I may have been able to consider the circumstances of Petitioner's illnesses in mitigation, but I could not have, in any event, lessened the period of exclusion to less than five years. ⁽²⁾ 42 C.F.R. § 1001.102(a).

15. Petitioner's request to the State of Wyoming for a waiver of the I.G.'s exclusion is not relevant to this case.

Petitioner points out in her brief that her license to practice medicine in Wyoming has recently been reinstated. P.R. Br. at 2. She also notes that she has important specialized skills in oncology that are rare in Wyoming. I have accepted these facts as true. Although the Petitioner did not expressly argue that her specialized skills as an oncologist and her value to her community should be considered a mitigating factor, I reiterate that, in this case, the I.G. has not exercised her discretion to enlarge the term of exclusion beyond the mandatory minimum, and has declined to offer proof of any of the aggravating factors defined by regulation. Thus, by the explicit terms of 42 C.F.R. § 1001.102(c), I cannot consider Petitioner's importance to the medical care of an underserved area both because: (1) the I.G. demonstrated no aggravating factors; and (2) service to a medically unserved area is not a listed mitigating factor.

Petitioner also argues that she is in the process of requesting a waiver from the state's health care program based upon her specialized skills and the scarcity of specialists in the community she serves. Id. at 3-4. She asserts that it would be improper, inequitable and a waste of judicial and administrative resources to grant the relief sought by the I.G. at this time. Id. at 3. She refers to the "waiver" process as set forth in 42 U.S.C. § 1320a-7(d)(23)(B) as affirming Congressional intent not to apply by rote the mandatory aspects of the Act. Id. On the contrary, the Departmental Appeals Board has held that, if a conviction falls within the meaning of section 1128(a) of the Act, the I.G. must impose the exclusion. Niranjana B. Parikh, M.D., DAB No.1334 (1992).

Moreover, the exclusion process follows a distinctly different path than does the application for a waiver. I do not have the authority to grant a waiver, nor am I authorized to hear or decide the issue of a waiver. Yvon Nazon, M.D., DAB No. 1376 (1992); see, Stanley A. Bittman, Ph.D., DAB CR153 (1991). According to the terms of the Act, a waiver must be requested by a State and only the Secretary may consider this issue. 42 U.S.C. § 1320a-7(c)(3)(B). Moreover, there is no provision in the Act or regulations for a suspension of an exclusion during the pendency of a waiver request. Albert Lerner, DAB CR91 (1990).

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.

Anne E. Blair

Administrative Law Judge

1. The three mitigating factors are defined with particularity in 42 C.F.R. § 1001.102(c)(1)-(3). No other factors may be considered.

2. One of the specified mitigating factors for mandatory exclusions which can be considered in exclusions imposed for longer than five years comes into play if "[T]he record in the criminal proceedings, including sentencing documents, demonstrates that the court determined that the individual had a mental, emotional or physical condition before or during the commission of the offense that reduced the individual's culpability . . . ." 42 C.F.R. § 1001.102(c)(2).