Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD
Civil Remedies Division
In the Case of:
Abelard A. Pelaez, M.D.,
Petitioner,
- v. -
The Inspector General.
DATE: October 11, 1991
Docket No. C-202
DECISION
By letter dated October 24, 1989, the Inspector General (I.G.) notified Abelard
A. Pelaez, M.D. (Petitioner)
that he would be excluded from participation in the Medicare program and any
federally-assisted State
health care program (such as Medicaid), as defined in section 1128(h) of the
Social Security Act (Act), for
a period of six years. 1/ The I.G. further advised Petitioner that his exclusion
was due to his federal
conviction of a criminal offense related to the unlawful manufacture, distribu-tion,
prescription, or
dispensing of a controlled substance. Petitioner was informed that exclusions
from Medicare and Medicaid
programs after such a conviction are authorized by section 1128(b)(3) of the
Act.
Petitioner timely requested a hearing before an Administrative Law Judge (ALJ)
to contest his exclusion.
The case was assigned to me for hearing and decision. On January 24, 1991, I
conducted a hearing in
Charleston, West Virginia. Thereafter, the parties filed post-hearing briefs.
I have considered the evidence introduced by both parties at the January 24
hearing and the arguments
contained in their post-hearing briefs. Based on the evidence, the arguments
of the parties, and the
applicable law, I conclude that the I.G.'s determination to exclude Petitioner
for six years is reasonable. I,
therefore, uphold the exclusion.
APPLICABLE STATUTES AND REGULATIONS
I. The Federal Statute
Section 1128 of the Act is codified at 42 U.S.C. 1320a-7 (1988). Section 1128(a)
of the Act requires the
exclusion from Medicare and Medicaid of those individuals or entities "convicted"
of a criminal offense
"related to the delivery of an item or service" under the Medicare
or Medicaid programs. Section 1128(b)
of the Act permits the exclusion of individuals or entities that lose their
licenses, fail to supply payment
information, or are convicted of criminal offenses relating to fraud, or, as
in this case, to the unlawful
manufacture, distribution, prescription, or dispensing of a controlled substance.
II. The Federal Regulations
The governing federal regulations are codified at 42 C.F.R. Parts 498, 1001,
and 1002 (1990). Part 498
governs the procedural aspects of this exclusion case; Parts 1001 and 1002 govern
the substantive aspects.
ADMISSIONS
Petitioner has admitted that he was convicted of the offense for which he was
excluded and that his
conviction was for the type of offense contemplated by section 1128(b)(3). Tr./
5. 2/
ISSUE
The issue in this case is whether the length of the exclusion imposed and directed
against Petitioner is
reasonable and appropriate.
FINDINGS OF FACT AND CONCLUSIONS OF LAW 3/
1. Petitioner held an unrestricted license to practice medicine and surgery
in the State of West Virginia
until February 10, 1988. I.G. Ex. 7/1.
2. On or about February 10, 1988, Petitioner entered into a Consent Order with
the West Virginia Board of
Medicine (Board of Medicine). I.G. Ex. 7/1, 5.
3. By signing the Consent Order, Petitioner admitted (a) that he had failed
to comply with the Board of
Medicine's 1985 order to cease prescribing controlled substances to his wife,
and (b) that probable cause
existed to charge Petitioner with violating West Virginia Code 30-3-14(c)(13),
which prohibits
"prescribing, dispensing, administering, mixing or otherwise preparing
a prescription drug, including any
controlled substance under State or Federal law, other than in good faith and
in a therapeutic manner in
accordance with accepted medical standards. . . . " I.G. Ex. 7/1, 2.
4. Under the terms of the Consent Order, Petitioner's license to practice medicine
was suspended for six
months. The suspension was stayed and Petitoner was placed on probation for
three years, during which
time he was permitted to practice only under the supervision of a physician
selected and approved by the
Board of Medicine. I.G. Ex. 7/3.
5. Pursuant to the Consent Order, Petitioner agreed to pursue continuing education
in prescribing practices
and rational drug therapy. Petitioner also agreed to maintain a record of each
and every prescription he
wrote for Schedule II controlled substances during the three-year probationary
period. I.G. Ex. 7/4.
6. A "controlled substance" is a "drug or other substance or
immediate precursor, included in schedule I,
II, III, IV, or V of [21 U.S.C. 812]." 21 U.S.C. 811(a)(1)(A), (C).
7. Drugs or other substances listed in Schedules I through V have a potential for abuse. Tr./16.
8. The lower the number of the schedule in which a controlled substance is
listed, the less the medical
value of that substance, and the greater the potential for abuse. Tr./16-17.
9. Regulations of the Drug Enforcement Administration of the United States
Department of Justice (DEA)
require persons who wish to dispense and prescribe controlled substances to
be registered with DEA. I.G.
Ex. 3, 3A/1.
10. Petitioner was registered with DEA until his registration number expired
on March 31, 1988. I.G. Ex.
3, 3A/2.
11. On or about December 15, 1988, the Grand Jury for the United States District
Court for the Southern
District of West Virginia indicted Petitioner on four felony counts of prescribing
controlled substances
using an expired DEA registration number, in violation of 21 U.S.C. 843(a)(2).
I.G. Ex. 3, 3A.
12. The indictment alleged that during the months of April through July of
1988, Petitioner knowingly,
intentionally, and without authority, used and caused the use, of an expired
DEA registration in the course
of dispensing and prescribing of controlled substances. I.G. Ex. 3, 3A/2, 4,
9, 14.
13. On January 10 through 12, 1989, Petitioner was tried by a jury in the United
States District Court for
the Southern District of West Virginia (District Court). I.G. Ex. 5.
14. Petitioner was found guilty of the four felony counts charged in the indictment. I.G. Ex. 4/1; 5/339.
15. On April 28, 1989, the District Court sentenced Petitioner to terms of
15 months' incarceration and one
year of supervised release on each of the four counts on which he was convicted,
the sentences to run
concurrently. I.G. Ex. 4/2-3.
16. The District Court also ordered Petitioner to pay the sum of $20,200, comprised
of a $5,000 fine, a
$200 special assessment, and $15,000 to cover the cost of incarceration. I.G.
Ex. 4/5.
17. In imposing Petitioner's sentence, the Judge departed upward from the sentencing
guidelines of two to
eight months' incarceration because he found that Petitioner had shown a disregard
for criminal and civil
regulation over a period of years. I.G. Ex. 5/356, 358.
18. On June 1, 1989, the Board of Medicine revoked Petitioner's license to
practice medicine, citing
Petitioner's convictions and certain violations of the Consent Order as unprofessional
conduct. I.G. Ex.
8/5-7.
19. By order dated October 5, 1989, DEA denied Petitioner's applications to
renew his registration under
the Controlled Substances Act. I.G. Ex. 10.
20. Petitioner was "convicted" of a criminal offense relating to
the unlawful manufacture, distribution,
prescription, or dispensing of a controlled substance, within the meaning of
Section 1128(b)(3) and 1128(i)
of the Act.
21. Pursuant to section 1128(b)(3) of the Act, the Secretary of the Department
of Health and Human
Services (Secretary) has authority to impose and direct an exclusion against
Petitioner from participating in
Medicare and Medicaid.
22. The Secretary delegated to the I.G. the duty to impose and direct exclusions
pursuant to section 1128
of the Act. 48 Fed. Reg. 21662 (May 13, 1983).
23. By letter dated October 24, 1989, the I.G. notified Petitioner that he
was being excluded from
participating in the Medicare and Medicaid programs for six years, pursuant
to section 1128(b)(3) of the
Act.
24. There is no length or period of exclusion mandated by statute for section
1128(b)(3) exclusions. The
exclusion provisions of section 1128 of the Act do not establish a minimum or
maximum period of
exclusion to be imposed and directed in cases where the I.G. has discretion
to impose and direct exclusions.
Act, sections 1128(b)(1)-(14).
25. The regulations set forth the factors to be considered in determining the
length of mandatory
exclusions. Those factors provide guidance in determining the appropriate length
of permissive exclusions.
The factors include: (1) the number and nature of the offenses; (2) the nature
and extent of any adverse
impact the violations have on beneficiaries; (3) the amount of the damages incurred
by the Medicare,
Medicaid, and social services programs; (4) the existence of mitigating circumstances;
(5) the length of the
sentence imposed by the court; (6) any other facts bearing on the nature and
seriousness of the violations;
and (7) the previous sanction record of the excluded individual. 42 C.F.R. 1001.125(b)(1)-(7).
26. There are substantial reasons for a lengthy exclusion in this case: (1)
Petitioner disregarded the
regulations designed to safeguard the prescribing of controlled substances,
after being warned by DEA
officials that his registration had expired; (2) even before Petitioner's conviction,
the Board of Medicine
had disciplined Petitioner for failing to prescribe controlled substances in
an accepted therapeutic manner;
(3) Petitioner was sentenced to 15 months' incarceration; (4) Petitioner was
sentenced to one year
supervised release following his imprisonment; (5) the judge who sentenced Petitioner
departed upward
from the sentencing guidelines because of Petitioner's disregard for civil and
criminal regulation; (6)
Petitioner's license to practice medicine was revoked; and (7) Petitioner's
applications to renew his DEA
registration were denied.
27. Petitioner established that: (1) Petitioner is 57 years of age (Tr./58;
P. Br. at 2); (2) Petitioner has two
minor children to support (id.); (3) Petitioner is not trained for any type
of employment outside the medical
field (Tr./59); (4) Petitioner has been unable to find employment outside the
medical field (Tr./59; P. Br. at
3); (5) prior to his conviction, Petitioner had no criminal record (Tr./68);
(6) Petitioner served his prison
sentence without incident and is complying with the terms of his supervised
release (Tr./68-69; P. Br. at 3);
(7) Petitioner practiced in his specialties of gastroenterology and radiology
with a high degree of
competence (P. Ex. 1, 2, 4, 5, 8-11, 14-16); Petitioner completed a course in
Rational Drug Therapy, as
required by the Consent Order (Tr./69; P. Br. at 3). This evidence does not
establish that the I.G.'s
determination concerning the length of Petitioner's exclusion is unreasonable.
28. Petitioner did not establish that he practiced in a medically underserved area.
29. Petitioner has not proven that an exclusion of six years is unreasonable.
30. The I.G.'s determination to exclude Petitioner from participation in the
Medicare or Medicaid
programs for six years is reasonable. FFCL 1-26; see also 42 C.F.R. 1001.125(b)(1)-(7).
DISCUSSION
I. Petitioner Was "Convicted" Of A Criminal Offense "Relating
To The Unlawful Manufacture,
Distribution, Prescription, Or Dispensing Of A Controlled Substance", Within
The Meaning Of Section
1128(b)(3) Of The Act.
Section 1128(b)(3) of the Act authorizes the I.G. to exclude from participation
in the Medicare and
Medicaid programs individuals who have been "convicted" of criminal
offenses "relating to the unlawful
manufacture, distribution, prescription, or dispensing of a controlled substance".
On January 12, 1989,
Petitioner was found guilty by a jury of knowingly, intentionally, and without
authority dispensing and
prescribing controlled substances using an expired DEA registration. FFCL 11.
Petitioner admits, and I
find and conclude, that he was "convicted" within the meaning of section
1128(i) and that his conviction
was for a type of criminal offense enumerated in section 1128(b)(3) of the Act.
FFCL 12, 14, 20.
II. A Six-Year Exclusion Is Appropriate And Reasonable In This Case.
Petitioner has admitted, and I have concluded, that Petitioner was "convicted"
of a criminal offense that
falls within the scope of section 1128(b)(3) of the Act. Therefore, the I.G.
was authorized to impose an
exclusion. The remaining issue is whether the six-year exclusion imposed in
this case is appropriate and
reasonable. For the reasons set out below, I conclude that a six-year exclusion
is reasonable.
As I stated in Falah R. Garmo, R.Ph., DAB Civ. Rem C-222 (1990) (citing Victor
M. Janze, M.D., DAB
Civ Rem. C-212
(1990), and Charles J. Burks, M.D., DAB Civ. Rem. C-111 (1989), in making a
determination regarding
the length of an exclusion, I am guided by the purpose behind the exclusion
law. Congress enacted section
1128 of the Act to protect the Medicare and Medicaid programs from fraud and
abuse and to protect the
beneficiaries and recipients of those programs from impaired and incompetent
practitioners and
inappropriate or inadequate care. S. Rep. No. 109, 100th Cong., lst Sess. 1;
reprinted in 1987 U.S. Code
Cong. & Admin. News 682, 708.
The key term is "protection," the prevention of harm. See Websters
II New Riverside University
Dictionary 946 (1984). As a means of protecting the Medicare and Medicaid programs
and their
beneficiaries and recipients, Congress chose to mandate, and in other instances
to permit, the exclusion of
individuals and entities. Through the exclusion law, individuals and entities
who have caused harm, or
may cause harm, to the program or its beneficiaries or recipients are no longer
permitted to receive
reimbursement for items or services which they provided to Medicare beneficiaries
or Medicaid recipients.
Thus, individuals are removed from a position which provides a potential avenue
for causing harm to the
programs. An exclusion also serves as a deterrent to other individuals and entities
against errant or deviant
behavior which may result in harm to the Medicare and Medicaid programs or their
beneficiaries and
recipients.
No statutory minimum mandatory exclusion period exists for section 1128(b)(3)
exclusions. The
determination of when an individual should be trusted and allowed to reapply
for participation as a
provider in the Medicare and Medicaid programs is a difficult issue and is one
which is subject to
discretion; there is no mechanical formula. The federal regulations provide
some guidance which may be
followed in making this determination.
The regulations provide that the length of Petitioner's exclusion may be determined
by reviewing: 1) the
number and nature of the offenses; 2) the nature and extent of any adverse impact
the violations have had
on benefici-aries; 3) the amount of the damages incurred by the Medicare, Medicaid,
and social services
programs; 4) the existence of mitigating circumstances; 5) the length of sentence
imposed by the court; 6)
any other facts bearing on the nature and seriousness of the violations; and
7) the previous sanction record
of Petitioner. See 42 C.F.R. 1001.125(b).
These regulations were adopted by the Secretary (and his delegate, the I.G.)
to implement the Act prior to
the 1987 Amendment. The regulations specifically apply only to exclusions for
"program related"
offenses. To the extent that they have not been repealed, however, they embody
the Secretary's intent that
they continue to apply, at least as broad guidelines, to the cases in which
discretionary exclusions are
imposed. See Garmo, supra at 10; Leonard N. Schwartz, R.Ph., DAB Civ. Rem. C-62
at 12 (1989). In
addition to the factors listed above, given congressional intent to exclude
untrust-worthy individuals from
participation in Medicare and Medicaid programs, I also consider those circumstances
which indicate the
extent of an individual's or entity's trustworthiness.
By not mandating that exclusions from participation in the Medicare and Medicaid
program be permanent,
Congress has allowed the I.G. the opportunity to give individuals a "second
chance." The placement of a
limit on the period of exclusion allows an excluded individual or entity the
opportunity to demonstrate that
he or she can and should again be trusted to participate in the Medicare and
Medicaid programs as a
provider of items and services to beneficiaries and recipients. A determination
of an individual's current
and future trustworthiness thus necessitates an appraisal of the crime for which
that individual was
convicted, the circumstances surrounding it, whether and when that individual
sought help to correct the
behavior which led to the criminal conviction, and how far that individual has
come towards rehabilitation.
A. The nature of Petitioner's crime was not a mere technicality.
Petitioner argues that the six-year exclusion imposed by the I.G. is unduly
harsh. He urges me to draw a
distinction between a conviction for prescribing or dispensing controlled substances
for non-therapeutic
purposes and one where the illegality did not involve prescription for non-therapeutic
purposes, as
Petitioner asserts is the case here. In essence, Petitioner appears to be arguing
that his conviction involved
a mere technical violation of the controlled substances law and therefore should
be regarded as less serious
than a situation involving the sale or distribution of controlled substances
for illicit purposes. These
arguments go to the nature of the crime of which Petitioner was convicted and
the circumstances
surrounding it.
Under certain circumstances, it might be possible to view the failure promptly
to renew an expired DEA
registration as a mere technicality which would not reflect negatively on Petitioner's
trustworthiness as a
provider of services to the Medicare and Medicaid programs. However, in the
present case, I am unable to
draw the conclusion that Petitioner's conviction involved a mere technicality.
The facts underlying Petitioner's conviction indicate that Petitioner intentionally
prescribed controlled
substances after receiving specific advice that he was no longer permitted to
do so. On April 19, 1988,
Petitioner met with DEA agents and an Assistant U.S. Attorney in connection
with an investigation of
another physician. At the end of that meeting, one of the DEA agents informed
Petitioner that his DEA
registration had expired. The DEA agent testified at Petitioner's criminal trial
that she informed Petitioner
that he was not permitted to prescribe any controlled substances until his DEA
registration was renewed.
Petitioner testified at his trial, and again at the hearing in this case, that
the DEA agent instructed him that
he could not prescribe Schedule II controlled substances, but that he was permitted
to prescribe Schedule
III and IV controlled substances. Petitioner testified that, to the extent he
prescribed controlled substances
after the April 19 meeting, he did so in good faith in reliance on his understanding
of the DEA agent's
instructions. Apparently, the jury in Petitioner's criminal trial did not believe
Petitioner's explanation,
because they found Petitioner guilty of knowingly prescribing controlled substances
using an expired DEA
registration.
At the hearing in this case, Petitioner reiterated his purported understanding
of the instructions he received
from the DEA agent. I do not find Petitioner's testimony convincing. I simply
cannot credit Petitioner's
contention that a DEA agent advised him that he could legally prescribe certain
schedules of controlled
substances, but not others, at a time when his DEA registration was no longer
in force. 4/
Petitioner also introduced as an exhibit a written chronology encompassing
his explanation of the sequence
of events leading to his conviction. See P. Ex. 13. The written chronology recites
that Petitioner took
immediate steps to renew his DEA certificate. Id./3. Even Petitioner's version
of the facts, however,
acknowledges that he did not complete the application for renewal until May
27, 1988, more than a month
after the April 19 meeting. The written statement also asserts that Petitioner
believed that when DEA
cashed his checks for the renewal fees, this indicated that his application
had been approved. Id./5.
However, Petitioner did not receive his bank statement showing that the checks
had been negotiated until
about July 13, 1988. Id. By this time, Petitioner had already written all of
the prescriptions which formed
the basis for counts one through three of his indictment. Thus, even Petitioner's
statement demonstrates
that he wrote prescriptions for controlled substances during a period when he
knew that his DEA
registration had expired. 5/
Federal law and regulation concerning the prescription of controlled substances
reflect a legislative
conclusion that these substances are potentially dangerous to the health and
safety of consumers. Because
of the potential for harm and abuse, Congress has decided that these substances
must be strictly regulated.
Undoubtedly the laws and regulations work at times to inconvenience physicians,
as well as pharmacists
and consumers. But any inconvenience which results to these parties reflects
the legislative determination
that strict controls must be maintained for the public good. No individual has
the right to exempt himself
from inconvenient aspects of this system of controls, regardless of his motivation.
See Thomas Andrew
Hunter, DAB Civ. Rem. C-337 (1991).
Therefore, I conclude that the nature of the crime of which Petitioner was
convicted was not merely a
technical violation. Instead, the conviction indicates that Petitioner treats
cavalierly the laws and
regulations designed to safeguard the prescription and dispensing of controlled
substances. Indeed,
Petitioner has demonstrated a pattern of reinterpreting official instructions
regarding his prescription
practices.
B. The circumstances surrounding Petitioner's conviction demonstrate a pattern
of disregarding
official instructions concerning the prescribing of controlled substances.
The conduct that led to Petitioner's conviction appears to be part of a long-standing
pattern of irresponsible
behavior by Petitioner involving the prescription of controlled substances.
In a letter dated November 5, 1985, the West Virginia Board of Medicine wrote
to Petitioner, requiring him
to cease prescribing any controlled substances, including demerol, to his then
wife, Kay Pelaez. The Board
of Medicine warned Petitioner that its investigation suggested that Petitioner
might have violated W. Va.
Code 30-3-14, which prohibits
Prescribing, dispensing, administering, mixing or otherwise preparing a prescription
drug,
including any controlled substance under state or federal law, other than in
good faith and in a therapeutic
manner in accordance with accepted medical standards and in the course of the
physician's . . . professional
practice.
See I.G. Ex. 6.
Subsequently, in January, 1988, Petitioner entered into a Consent Order with
the Board of Medicine in
which he admitted that, on numerous occasions, he had not complied with the
Board's 1985 order. In the
Consent Order, Petitioner further admitted that probable cause existed to file
disciplinary charges against
him for violation of the statutory provision quoted above.
As part of the Consent Order, Petitioner and the Board of Medicine agreed that
Petitioner would be
disciplined by having his license placed on probation for three years. During
the probationary period,
Petitioner was to practice under the supervision of another physician, to keep
a record of every Schedule II
controlled substance which he prescribed, and to permit the Board of Medicine
to inventory any Schedule
II controlled substances that were kept in his offices.
In his direct testimony at the hearing in this case, Petitioner stated that
he had not prescribed any
medication for his wife after the Board of Medicine issued its 1985 Order. Tr./60.
On cross examination,
Petitioner stated that he had been coerced into entering the Consent Order.
Tr./90. However, in response
to further cross examination, Petitioner admitted that he had renewed prescriptions
for Schedule III
controlled substances such as Valium and Tylenol #3 (with codeine) for his wife.
Tr./87-90. Petitioner
explained that, in his view, he had complied with the Board of Medicine's Order.
He contended that he had
not prescribed demerol for his wife after the Board issued its Order, and that
the Board's concern in its
Order was that Petitioner's wife may have been addicted to demerol. Tr./89.
I find that the Board of Medicine's 1985 Order clearly states that Petitioner
was not to prescribe any
controlled substances to his wife. Apparently, the Board of Medicine's concerns
were not limited to the
prescrip-tion of demerol. Based on the Consent Order and on Petitioner's testimony
before me, I conclude
that Petitioner did prescribe controlled substances for his wife after being
ordered not to do so by the Board
of Medicine. I further find that Petitioner's testimony on this subject was
less than forthright. These
factors indicate a lack of trustworthiness on Petitioner's part.
Taken together with Petitioner's conviction, his behavior in relation to the
Board of Medicine's 1985 Order
suggests a pattern of disregarding official orders aimed at controlling his
prescribing practices. Perhaps
Petitioner feels that, as a physician, he knows better than the Board of Medicine
or the DEA how he should
be prescribing. In any event, in each instance Petitioner appears to have rationalized
after the fact that the
official orders he received authorized him to act as he did.
I also note that the U.S. District Judge who sentenced Petitioner similarly
concluded that Petitioner
demonstrated a pattern of disregarding civil and criminal regulations over a
number of years. On that
basis, the Judge departed upward from the federal sentencing guidelines and
imposed a sentence of 15
months' incarceration. I.G. Ex. 5/358.
Based on these facts, I conclude that the circumstances surrounding Petitioner's
criminal conviction and
discipline by the Board of Medicine indicate that he believes that he can reinterpret
statutes, regulations,
and official orders to suit the needs of his practice. These circumstances indicate
a lack of trustworthiness.
C. Petitioner has not demonstrated significant rehabilitation.
There are some indications in the record before me that Petitioner may be beginning
to rehabilitate himself.
Petitioner served his prison sentence without incident and is complying with
the terms of his probation.
Indeed, the record contains a letter of appreciation recognizing that Petitioner
displayed extra effort and
dedication to his job in the prison laundry. P. Ex. 20. Petitioner has pursued
continuing medical education
in prescribing practices. Tr./69. However, Petitioner did not undertake these
efforts voluntarily, but only
after being ordered to do so by the Court or the Board of Medicine. Therefore,
I cannot accord great
weight to these facts.
I find it particularly troubling that Petitioner has not acknowledged the wrongfulness
of his actions. In
testimony before me and in his written statement, Petitioner still asserts that
a DEA agent instructed him
that he could prescribe Schedule III and IV controlled substances using an expired
DEA certificate. The
jury in Petitioner's criminal trial did not find Petitioner's explanation convincing;
nor do I. Petitioner
appears to feel that he has been unjustly singled out for punish-ment. Tr./102.
As long as Petitioner is
unwilling to acknowledge that he has prescribed controlled substances improperly
and illegally in the past,
I do not feel confident that he can be trusted to observe appropriate prescribing
practices in the near future.
D. Petitioner has not shown that an exclusion of six years is unreasonable.
My purpose in hearing and deciding the issue of whether an exclusion is reasonable
is not to second-guess
the I.G.'s determination, but to decide whether that determination was extreme
or excessive. 48 Fed. Reg.
3744 (Jan. 27, 1983). In this case, I conclude that the exclusion imposed by
the I.G. is not extreme or
excessive and is reasonable and appropriate.
The I.G. proved a number of facts which indicate Petitioner is untrustworthy
and thus justify a lengthy
exclusion. As discussed above, Petitioner disregarded the regulations designed
to safeguard the prescribing
of controlled substances, after being warned by DEA officials that his registration
had expired. Moreover,
even before Petitioner's conviction, the Board of Medicine had disciplined Petitioner
for failing to
prescribe controlled substances in an accepted thera-peutic manner. The Judge
who sentenced Petitioner
departed upward from the sentencing guidelines because of Petitioner's disregard
for civil and criminal
regulation; Petitioner's sentence included 15 months' incarceration and one
year supervised release
following his imprison-ment. Finally, following his conviction, Petitioner's
license to practice medicine
was revoked and Petitioner's applications to renew his DEA registration were
denied.
Petitioner established a number of facts that, to my mind, do not reflect one
way or another on his
trustworthiness as a health care provider. These facts include Petitioner's
age (57), his responsibility for the
support of his two minor children, his lack of training for any type of employment
outside the medical
field, and his present unemployment.
Petitioner established that, prior to his conviction, he had no criminal record.
However, while the presence
of a prior criminal record might indicate a greater lack of trustworthiness
on Petitioner's part, the absence
of such prior convictions does not indicate that he is trustworthy.
Petitioner also introduced evidence to show that he practiced in his specialties
of gastroenterology and
radiology with a high degree of competence (P. Ex. 1, 2, 4, 5, 8-11, 14-16).
This evidence might suggest
that Petitioner can be trusted to provide competent care to program beneficiaries
and recipients. However,
evidence of Petitioner's competence does not convince me that he can be trusted
to observe appropriate
prescribing practices.
There was some testimony at the hearing concerning the demographics of the
area of West Virginia in
which Petitioner formerly practiced. However, there was no evidence to substantiate
that Petitioner
practiced in a medically underserved area.
I have considered all the evidence which Petitioner introduced. However, I
conclude that Petitioner has not
proven that an exclusion of six years is unreasonable. Therefore, the I.G.'s
determination to exclude
Petitioner from participation in the Medicare or Medicaid programs for six years
is reasonable and
appropriate. FFCL 1-26; see also 42 C.F.R. 1001.125(b)(1)-(7).
CONCLUSION
Based on the evidence in this case and the law, I conclude that the I.G.'s
determination to exclude
Petitioner from participation in the Medicare and Medicaid programs for six
years is reasonable and
appropriate. Therefore, I am entering a decision in favor of the I.G. in this
case.
IT IS SO ORDERED
Charles E. Stratton
Administrative Law Judg
1. "State health care program" is defined by section 1128(h) of the
Social Security Act to cover three types
of federally-assisted programs, including State plans approved under Title XIX
of the Act (Medicaid). I
use the term "Medicaid" hereafter to represent all State health care
programs from which Petitioner was
excluded.
2. Citations to the record in this decision are as follows:
Petitioner's Exhibits P. Ex. (number)/(page)
Petitioner's Brief P. Br. (page)
I.G.'s Exhibits I.G. Ex. (number)/(page)
Transcript Tr./(page)
Findings of Fact and FFCL (number)
Conclusions of law
3. Some of my statements in the sections preceding these formal findings of
fact and conclusions are also
findings of fact and conclusions of law. To the extent that they are not repeated
here, they were not in
controversy.
4. As discussed more fully below, a January 1988 Consent Order entered into
by Petitioner and the Board
of Medicine placed significant restrictions on Petitioner's ability to prescribe
Schedule II controlled
substances. For this reason, it appears more likely that Petitioner had ceased
or limited his prescription of
those drugs before the April 19, 1988 meeting ever occurred, and that his explanation
of the DEA agent's
instructions constituted a rationalization after the fact that would appear
consistent with his actual
prescribing pattern.
5. Petitioner states that he knew of numerous other physicians who had failed
to renew their DEA
certificates in a timely manner, but who had nonetheless been granted renewal
and had not been
prosecuted. See P. Ex. 13/2. This argument does nothing to aid Petitioner's
case. Presumably, in these
instances, the failure to renew was an oversight which the physician corrected
when it was discovered.
Thus, to the extent these physicians wrote prescriptions using expired DEA certificates,
they did so
unknowingly. Petitioner was convicted of knowingly writing prescriptions using
an expired certificate.
Petitioner apparently has never disputed that he knew, as of April 19, 1988,
that his DEA certificate was
expired.