CASE | DECISION | JUDGE

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


SUBJECT:

Mansour Mahmoud Hamza, M.D.,

Petitioner,

DATE: November 27, 2002
                                          
             - v -

 

The Inspector General

 

Docket No.C-01-949
Decision No. CR982
DECISION
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DECISION

This matter is before me on the Inspector General's (I.G.'s) request for summary affirmance. The parties have submitted briefs and exhibits in support of their positions and I have reviewed their pleadings carefully. Having done so, I find no material facts in dispute and conclude that the I.G.'s position is correct as a matter of law. Accordingly, I affirm, summarily, the I.G.'s determination to exclude Mansour Mahmoud Hamza, M.D. (Petitioner), from participation in Medicare, Medicaid, and all other federally funded health care programs, under section 1128(a)(1) of Social Security Act (Act) for a five-year minimum mandatory period.

I. Procedural Background

At all material times, Petitioner was a physician and surgeon licensed to practice medicine in the State of California. I.G. Ex. 2. On or about October 7, 1998, Petitioner unlawfully issued a prescription for Valium, the commercial name for diazepam, a Schedule IV Controlled Substance. I.G. Exs. 1, 5, 6; 21 U.S.C. § 812. On or about May 11, 1999, in the Superior Court of the State of California, County of Los Angeles, Petitioner pleaded guilty to Count 1 of an Information charging him with violation of Cal. Health & Safety Code § 11153(a), a felony. I.G. Exs. 1, 3.

On or about the same date, and in the same proceeding in the Superior Court of the State of California, County of Los Angeles, Petitioner's guilty plea was accepted by the court and a judgment of conviction was entered on his plea. I.G. Ex. 3.

By letter dated July 31, 2001, the I.G. notified Petitioner that he was to be excluded, for a period of five years, from participation in Medicare, Medicaid, and all other federal health care programs as required by section 1128(a)(4) of the Social Security Act, 42 U.S.C. § 1320a-7(a)(4). The basis of the I.G.'s action was Petitioner's "felony conviction as defined in section 1128(i) (42 U.S.C. 1320a-7(i)), in the Superior Court of California, County of Los Angeles, of a criminal offense related to the unlawful manufacture, distribution, prescription, or dispensing of a controlled substance." The I.G.'s letter has not been offered as an exhibit by either party, but I have included a copy of it in this record, identified as Administrative Law Judge Exhibit (ALJ Ex.) 1.

The statute under which the I.G. proceeded establishes a five-year minimum mandatory exclusion of persons or entities convicted of felonies related to the unlawful manufacture, distribution, prescription, or dispensing of a controlled substance which occurred after August 21, 1996.

In a letter dated August 28, 2001, Petitioner timely sought review of the I.G.'s determination. The sufficiency of Petitioner's hearing request has not been challenged and no other jurisdictional issues have been raised or become apparent to me. Petitioner's letter has not been offered as an exhibit by either party, but I have included a copy of it in this record, identified as ALJ Ex. 2.

In a letter dated September 17, 2001, this case was docketed and assigned to me for hearing and a decision. I convened a prehearing telephone conference with the parties on June 6, 2002, to discuss the issues presented by this case and the procedures best suited for addressing them. The parties agreed that the case should be decided on written submissions in lieu of an in-person hearing, and I established a schedule for the submission of a request for summary disposition by the I.G., and for briefing and development of the documentary record by the parties.

The I.G. submitted her Preliminary Statement and Brief in Support of Summary Affirmance (I.G. Br.), accompanied by six exhibits (I.G. Exs. 1-6), on July 12, 2002. Petitioner filed a Preliminary Statement and Brief in Opposition to Summary Affirmance (P. Br.), accompanied by his own sworn Declaration as to certain facts, on August 16, 2002. I have treated Petitioner's Declaration as an exhibit (P. Ex. 1). The I.G. filed her Reply to Petitioner's Brief in Opposition to Summary Affirmance (I.G. Reply Br.) on August 29, 2002. In the absence of objection by either side, I admit I.G. Exs. 1-6 and P. Ex. 1. ALJ Exs. 1 and 2 are part of the record, as noted above.

The nine exhibits will allow me briefly to summarize here the events that led to the I.G.'s action. Although neither the I.G.'s notice letter (ALJ Ex. 1) nor Petitioner's hearing request (ALJ. Ex. 2) specifically says so, this appeal concerns itself with Petitioner's investigation for, admission of, and conviction on charges of improperly prescribing Valium to an undercover police detective on or about October 7, 1998, in Venice, California. I.G. Ex. 6 at 1-2. Valium is a commercial name for diazepam, a Schedule IV Controlled Substance. 21 U.S.C. § 812. That act was charged as Count 1 of a three-count Information filed May 11, 1999, in California v. Hamza, No. SA034339, Superior Court of the State of California, County of Los Angeles. I.G. Ex. 1. On June 30, 1999, Petitioner pleaded guilty to that Count of the Information, and the presiding judge accepted the guilty plea and entered judgment of conviction on the plea. I.G. Ex. 3 at 8. Petitioner was immediately sentenced to a term of probation and to a day's confinement in the county jail, with credit for time already served; the remaining two counts of the Information were dismissed. I.G. Ex. 3 at 9.

Like many other states, California provides an opportunity for qualifying criminal defendants to seek relief from the opprobrium or the consequences of a criminal conviction. In the instant case, after what appears to have been an incident-free first year of probation, Petitioner was relieved of the remaining term. I.G. Ex. 3 at 23. At the same hearing, on June 15, 2000, the presiding judge acted in accordance with California's post-conviction relief procedure by amending sua sponte the charge to which Petitioner had pleaded guilty from a felony to a misdemeanor, allowing Petitioner to plead not guilty to the misdemeanor, then setting aside his earlier plea and conviction, and finally dismissing the case entirely. I.G. Ex. 3 at 21-23.

II. Issues

The legal issue before me is limited. It is:

Whether Petitioner's conviction authorizes the I.G. to exclude Petitioner from Medicare, Medicaid, and all other federal health care programs for the mandatory minimum period of five years, pursuant to the terms of Section 1128(a)(4) of the Act?

As will be seen in the following discussion, there are significant matters implicit in this case that the parties do not contest. Thus, it is not necessary for me to decide whether the offense for which Petitioner was convicted occurred after August 21, 1996: on the face of the record, it did. Nor is it necessary for me to determine whether the offense charged and admitted was a felony: the court records show that it was and the parties do not suggest otherwise. Neither party to this litigation suggests that the substance unlawfully prescribed was not a controlled substance: 21 U.S.C. § 812 establishes that it was. Finally, although neither the I.G.'s notice of exclusion (ALJ Ex. 1) nor Petitioner's hearing request (ALJ Ex. 2) specifically identifies the date or docket number of Petitioner's guilty plea and conviction, it is plain from their briefing and the exhibits that Petitioner's May 11, 1999 plea and conviction on Count 1 of California v. Hamza, supra, is the basis of the I.G.'s action and this appeal.

III. Controlling statutes and regulations

Summary judgment is appropriate and no hearing is required 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 judgment 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); 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). To accomplish this, the opposing party must go beyond mere allegations, and come forward with factual evidence that creates a genuine issue of material fact. All reasonable inferences are to be drawn in the opposing party's favor. Pollock v. American Tel. & Tel. Long Lines, 794 F.2d 860, 864 (3rd Cir. 1986).

Section 1128(a)(4) of the Social Security Act (Act), 42 C.F.R. § 1320a-7(a)(4), requires the exclusion from participation in Medicare, Medicaid, and all other federal health care programs of any individual or entity convicted, under federal or State law, of a criminal offense consisting of a felony which occurred after August 21, 1996, and which related to the unlawful manufacture, distribution, prescription, or dispensing of a controlled substance. This exclusion is mandatory and must be imposed for a minimum of five years. Section 1128(c)(3)(B) of the Act.

The Act defines "convicted" as including those circumstances when "a plea of guilty or nolo contendere by the individual or entity has been accepted by a Federal, State, or local court" (section 1128(i)(3) of the Act); when "a judgment of conviction has been entered against the individual or entity by a … court, regardless of whether … the judgment of conviction or other record…has been expunged" (section 1128(i)(1) of the Act); and when "the individual or entity has entered into participation in a first offender, deferred adjudication, or other arrangement or program where judgment of conviction has been withheld" (section 1128(i)(4) of the Act).

IV. Findings of fact and conclusions of law

I make the following findings of fact and conclusions of law (Findings) to support my decision in this case. I set forth each Finding below as a separate heading. I discuss each Finding in detail and address Petitioner's arguments.

1. There are no remaining disputed issues of material fact and summary disposition is therefore appropriate in this matter.

Summary disposition is appropriate in a case where there are no disputed issues of material fact. See Fed. R. Civ. P. 56. I find summary disposition to be appropriate here. Petitioner has accepted CMS's "uncontested statement of the facts" in this case although he has advocated some additional "contested facts" which he contends are material. I note, however, that the ultimate "facts" which Petitioner represents are in dispute - whether Petitioner's conviction falls within the purview of section 1128(a) of the Act; and whether the I.G. has discretion under 1128(a) of the Act, to impose a five year exclusion - are not questions of fact, but conclusions of law.

2. I must sustain an exclusion of at least five years pursuant to section 1128(a)(4) of the Act.

Based on his plea of guilty, its acceptance by the court, and the judgment of conviction entered on that plea, Petitioner has been "convicted" within the meaning of section 1128(a)(4) of the Act. 42 C.F.R. § 1001.2. Petitioner has been convicted for an offense which occurred after August 21, 1996 "consisting of a felony relating to the unlawful manufacture, distribution, prescription, or dispensing of a controlled substance," within the meaning of section 1128(a)(4) of the Act. 42 C.F.R. § 1001.2. 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. 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 proper.

3. The exclusion statute considers an individual to have been convicted regardless of whether the record relating to criminal conduct has been expunged.

Although it is true that Petitioner successfully availed himself of the post-conviction relief procedures established in Cal. Penal Code §§ 1785, 1203.3, and 1203.4, he concedes here:

… that modification of the charges against Petitioner does not bind the Inspector General, and that the exclusion statute considers an individual to have been convicted regardless of whether the record relatingto criminal conduct has been expunged.

P. Br. at 9.

Petitioner's concession acknowledges this forum's long-standing and well-established rule to the same effect. Handel J. Roberts, DAB CR911 (2002); Ivy M. Muhar, DAB CR803 (2001); Robert Mark Armentrout, DAB CR786 (2001); Conrad J. Sardecki, D.O., DAB CR722 (2000); Aida Cantu, DAB CR462 (1997); Benjamin P. Council, M.D., DAB CR391 (1995); Carlos E. Zamora, M.D., DAB CR462 (1989). The rule is a carefully-derived understanding of congressional goals and intent, and its continued soundness is best appreciated in the discussion found in Ivy M. Muhar, supra: the entire purpose of the exclusion mechanism is the protection of federal health care programs from those who have been demonstrated to be untrustworthy in the programs' context, and post hoc amendment or emendation of a conviction is irrelevant to the fact of its having occurred. Petitioner's conviction may have been set aside for most purposes under California law, but he remains "convicted" for purposes of exclusion under section 1128(a)(4) of the Act.

Thus, the resolution of the issue before me is straightforward and brief: Petitioner's conviction does not merely authorize the I.G. to exclude him from all federal health care programs; by operation of law, the conviction requires that result. The conviction under which the I.G. proceeds here falls within the fourth of four categories of predicate conviction established in section 1128(a) of the Act. Each category sets out certain criteria by which a conviction is evaluated as a potential predicate for mandatory exclusion. Once the conviction of an entity or individual has been found to fall within the terms of section 1128(a)(1), 1128(a)(2), 1128(a)(3), or 1128(a)(4), it is ipso jure the predicate for mandatory and non-discretionary exclusion of the individual or entity. Lloyd G. Bayme, M.D., DAB CR876 (2002); Freddie P. Novak, M.D., DAB CR687 (2000); Lorna Faye Gardner, DAB No. 1733 (2000); Narendra M. Patel, M.D., DAB No. 1736 (2000); Susan Malady, DAB No. 1816 (2002).

4. The I.G. was authorized to exclude Petitioner from participation in Medicare and Medicaid for a period of five years pursuant to section 1128(a)(4).

Petitioner has suggested that section 1128(a)(4) does not apply to the conduct underlying his conviction, arguing that what he admitted was a lapse in "standard of practice considerations rather than … the customary 'criminal' conduct usually associated with drug law offenses." P. Br. at 3, 8.

This assertion deserves a moment of brief but close inspection, since it amounts to an invocation of the "doctor knows best" shibboleth in a setting singularly ill-suited to it. Petitioner writes:

The adequacy of an examination is a matter that turns on the facts and circumstances of each case. It is often (if not always) a question of expert opinion whether an examination is adequate for purposes of issuing a pain medication for a complaint such as that with which the "patient" in this case presented, viz., low back pain.

P. Br. at 8; P. Ex. 1 at 1-2.

Three salient points emerge when this assertion is read against the record. The first is that the information on its face, the criminal complaint on which the warrant for Petitioner's arrest was issued, and all other court records without exception describe the events of October 7, 1998 as fairly customary criminal conduct: "the crime of UNLAWFUL CONTROLLED SUBSTANCE PRESCRIPTION ... a felony," I.G. Exs. 1 at 1; 5 at 1; or "ILLEGAL PRESCRIPTION," I.G. Exs. 3 at 2, 3, 22; 4 at 1. The second is the long line of cases decided in this forum holding that conduct in every way similar to that admitted by Petitioner falls within the reach of section 1128(a)(4). Paul R. Scollo, D.P.M., DAB No. 1484 (1994); Peter Edmonson, DAB No. 1330 (1992); Ernest Valle, DAB CR309 (1994). And the remarkable third point is this: the Officer's Report of the incident on October 7, 1998, shows Petitioner hewing to a very permissive standard of practice indeed: undercover Detective Osama Agaiby repeatedly "… told Hamza that my girlfriend," and not the undercover detective himself, wanted the Valium, and "… asked Hamza if I should fill out the forms in my name or my girlfriends' (sic) name, and "… said that I did not know how many she would need." I.G. Ex. 6 at 1, 2. The remaining portions of the Officer's Report may be examined at length for any display of a professional standard of practice which would support the prescribing of a Schedule IV Controlled Substance on the representations of an unknown, unidentified, and unexamined person, never before a patient, in the name of that person but for the purported use of an absent--and in fact fictitious--third person, who herself was unknown, unidentified, unexamined, and not a patient.

These three points refute Petitioner's assertion that there is an open "… question of law whether the conviction in this case comes within the purview of 1128(a)(4) of the Act." P. Br. at 8. The settled law of this forum, when applied to the settled facts of this case, places Petitioner's conviction within the terms of section 1128(a)(4) of the Act. It is for that reason a sufficient predicate for mandatory exclusion for the minimum period of five years.

The second element of Petitioner's position in this litigation are his assertions that:

(1) The IG has discretion under section 1128(a)(4) of the Act. The IG is authorized to consider the facts and circumstances underlying the conviction in order to determine whether the conviction warrants the grave penalty of a five-year minimum exclusion.

(2) Section 1128(a)(4) of the Act contains no express language man-dating an exclusion.

(3) The IG has acted under the assumption that an exclusion is man-dated under section 1128(a)(4) of the Act. There is no mandatory exclusion provided for by the Act. Finally, the IG's failure to consider mitigating circumstances constitutes an improper failure to exercise discretion under the Act.

P. Br. at 3, 4, 7, 9.

The discussion above leaves little more to be added on the subject of the I.G.'s discretion to suspend or reduce the mandatory minimum term: no such discretion has been vested in the I.G., and the first four words of section 1128(a) of the Act: "The Secretary shall exclude …" are the source of the mandatory character of the I.G.'s action. Those four words are amplified by the opening language of 42 C.F.R. §§ 1001.101 and 1001.102(a). Thus, Petitioner's five-year exclusion is already the shortest term, and thus the most lenient treatment, to which he could conceivably be entitled.

5. Only the specific mitigating factors explicitly identified in 42 C.F.R. § 1001.102(c)(1)-(3) may be considered in reducing a term of exclusion imposed under section 1128(a)(4) of the Act, and only after the I.G. has attempted to enlarge the term of exclusion by asserting one or more of the aggravating factors identified in 42 CFR §1001.102(b)(1)-(9).

Petitioner's reference to "mitigating circumstances" invokes a brief discussion of another aspect of the I.G.'s exclusion authority. While the I.G. lacks the authority to alter or forebear imposing the five-year minimum mandatory term of exclusion, she is authorized, at her discretion, to enlarge the term. See 42 C.F.R. § 1002. The I.G. may extend the five-year period if certain specified aggravating factors are demonstrated to have attended on the criminal conduct for which the individual or entity has been convicted. 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. Only the following factors may be considered mitigating--

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

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), there is no occasion for her or for me to consider mitigating circumstances. But if there were, nothing in this record would properly invoke any of the defined mitigating factors specified by regulation. In sum, there is no claim in mitigation directed to the I.G.'s discretion which Petitioner is entitled to raise on this record.

VI. Conclusion

Because I believe that the I.G.'s request for summary affirmance is supported by the settled facts of this case and by well-established law, I grant the request, and thereby sustain the I.G.'s determination to exclude Petitioner from participation in Medicare, Medicaid, and all other federal health care programs for a mandatory minimum period of five years, pursuant to the terms of section 1128(a)(4) of the Act, 42 U.S.C. § 1320a-7(a)(4).

JUDGE
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Richard J. Smith

Administrative Law Judge

CASE | DECISION | JUDGE