Department of Health and Human Services DEPARTMENTAL APPEALS BOARD Civil Remedies Division |
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IN THE CASE OF | |
Ivy M. Muhar, M.D., |
DATE: July 27, 2001 |
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The
Inspector General
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Docket No.C-01-442
Decision No. CR803 |
DECISION | |
DECISION I sustain the determination of the Inspector General (I.G.)
to exclude Ivy M. Muhar, M.D., (Petitioner) from participation in the
Medicare, Medicaid, and all federal health care programs (Medicare and
Medicaid) for a period of three years. I find that the I.G. is authorized
to exclude Petitioner pursuant to section 1128(b)(3) of the Social Security
Act (Act), and that the three-year period of exclusion imposed by the
I.G. against Petitioner falls within a reasonable range. I. BACKGROUND By letter dated December 29, 2000, the I.G. notified Petitioner
that she was being excluded from participation in Medicare and Medicaid
for three years due to her conviction in the Court of Common Pleas for
Lycoming County, Pennsylvania (Pennsylvania court), of a criminal offense
related to the unlawful manufacture, distribution, prescription, or dispensing
of a controlled substance. The I.G. advised Petitioner that the exclusion
of individuals convicted of such offenses is authorized by section 1128(b)(3)
of the Act. By letter dated February 26, 2001, Petitioner requested a
hearing before an administrative law judge. The case was assigned to me
for a hearing and decision.
I convened a telephone prehearing conference on March
22, 2001. During the conference, Petitioner's counsel stated that she
had not been "convicted," as that term is defined in the Act, which I
determined to be a legal issue that I could decide on the written record
in lieu of an in-person evidentiary hearing. With the consent of the parties,
I set a briefing schedule for the case. The I.G. submitted a brief in
support of exclusion (I.G. Br.) accompanied by six exhibits (I.G. Exs.
1 - 6). Petitioner submitted a response (P. Br.) accompanied by four exhibits
(P. Exs. 1 - 4).(1) The I.G. submitted
a reply brief (I.G. Reply Br.). In the absence of objection, I accept
I.G. Exs. 1 - 6 and P. Exs. 1 - 4 into evidence. II. UNCONTESTED FACTS Petitioner does not contest the following facts as stated by the I.G. (I.G. Br. at 2 - 3).(2) P. Br. at 1. 1. On June 2, 2000, the Commonwealth of Pennsylvania filed a criminal complaint against Petitioner, Ivy M. Muhar, M.D., a physician then residing in the Commonwealth of Pennsylvania and licensed to practice medicine and surgery in Pennsylvania. The criminal complaint accused her of violating sections 780-113(a)(21) and 780-113(a)(16) of Title 35 of the Pennsylvania Controlled Substance, Drug, Device and Cosmetic Act. See I.G. Ex. 1. 2. The complaint states that Petitioner
"refused or failed to make, keep or furnish any record, notification,
order form, statement, invoice or information required under the act"
in violation of section 780-113(a)(21) of Title 35 of the Pennsylvania
Controlled Substance, Drug, Device and Cosmetic Act. See I.G. Ex.
1; 35 Pa. Cons. Stat. Ann. � 780-113(a)(21). 3. The complaint also accuses Petitioner of "knowingly or intentionally possessing a controlled or counterfeit substance by a person not registered under this act, or a practitioner not registered or licensed by the appropriate State Board, unless the substance was obtained directly from, or pursuant to, a valid prescription order or order of a practitioner, or except as otherwise authorized by this act." See I.G. Ex. 1; 35 Pa. Cons. Stat. Ann. � 780-113(a)(16). 4. The complaint states that Petitioner prescribed a Schedule III Controlled Substance, Hydrocodone, in the name of her husband, Stephen J. Marrocco, and that these prescriptions were received by and solely used by Petitioner. See I.G. Ex. 1. 5. Ninety-one prescriptions were prescribed in this manner, resulting in the dispensing of 5,140 dosage units from May 8, 1998 to December 13, 1999. See I.G. Ex. 1. 6. No patient records were kept
regarding these prescriptions as required by State law.(3)
See I.G. Ex. 1. 8. Petitioner pled guilty to both
counts of the criminal information. See I.G. Exs. 3, 4. 10. On September 21, 2000, the
Commonwealth of Pennsylvania's Bureau of Professional and Occupational
Affairs notified Petitioner of the automatic one-year suspension of her
license to practice medicine. See I.G. Ex. 5. III. PETITIONER'S CONTENTIONS Petitioner disputes the I.G.'s fact number 12, which states,
"Petitioner's exclusion from participation in Medicare, Medicaid and all
Federal health care programs, pursuant to section 1128(b)(3), is legally
supportable and appropriate." Specifically, Petitioner asserts that her criminal charges in Pennsylvania were disposed of in accordance with 35 Pa. Cons. Stat. Ann. � 780-117 (section 17), Probation Without Verdict, which should be applied here. Petitioner notes that the statute states, in relevant part, that: "Discharge and dismissal shall be without adjudication of guilt and shall not constitute a conviction for any purpose whatever. . . ." Petitioner notes a second provision of the statute, 35 Pa. Cons. Stat. Ann. � 780-119 (section 19), Expunging Criminal Records, which states, in relevant part, that:
Petitioner argues that she pled to misdemeanor charges
and that she accepted a plea agreement in exchange for a section 17 disposition,
as set forth above. Petitioner asserts that an individual granted a section
17 disposition under this statute is entitled to a discharge and dismissal
of charges "without adjudication of guilt and [it] shall not constitute
a conviction for any purpose whatever." 35 Pa. Cons. Stat. Ann. � 780-117(3).
Petitioner asserts that under section 19, as set forth above, Petitioner's
conviction is to be expunged and it is criminal under Pennsylvania law
to use the expunged conviction in a civil proceeding such as the I.G.
exclusion. Petitioner accepts that the federal government has the
right to establish eligibility criteria for providers in Medicare and
Medicaid. However, Petitioner argues that the federal government's power
to do so is not unlimited and is subject to Constitutional due process.
Petitioner asserts that using a State conviction as the sole basis for
an exclusion must have some rational relationship to the proceedings that
are the basis of the I.G.'s action. Here, Petitioner argues that she was not "convicted" as
the term is defined at section 1128(i) of the Act. Instead, the Pennsylvania
court deferred adjudication in Petitioner's case and placed her on probation.
Petitioner argues that on April 17, 2001, the Pennsylvania court dismissed
the charges against Petitioner and ordered that the records of Petitioner's
case be expunged. P. Ex. 1. Thus, Petitioner argues that the criminal
proceedings are a nullity, as if they had never occurred, and that the
I.G. could not exclude her because the sole basis for her exclusion is
a conviction which has been expunged. Petitioner asserts that this case is distinguishable from
the case of Conrad J. Sarnecki, Jr., D.O., DAB CR722 (2000), a
case where the petitioner was excluded under section 1128(a)(4) for a
minimum mandatory period based on a felony conviction under the same statute
as Petitioner. Dr. Sarnecki appealed his exclusion and his exclusion was
affirmed by the administrative law judge. Petitioner argues that her case
is different, because his case, although a section 17 adjudication, involved
a felony rather than a misdemeanor and did not cite section 19 and, thus,
Dr. Sarnecki's exclusion was not expunged as was Petitioner's. Petitioner also asserts that the regulations do not meet
a test of fundamental fairness, because they do not recognize as a mitigating
factor conduct which does not involve fraud, financial gain, or injury
to a patient or other third party. Petitioner asserts that she is trustworthy
to participate in Medicare and Medicaid because her personal addiction,
for which she has successfully sought treatment, should not be used as
a basis for exclusion. IV. APPLICABLE LAW Section 1128(b)(3) of the Act allows the Secretary of
Health and Human Services (Secretary) to exclude from participation in
Medicare and Medicaid an individual who has been convicted under federal
or State law of a misdemeanor criminal offense "relating to the unlawful
manufacture, distribution, prescription, or dispensing of a controlled
substance." The Secretary has delegated to the I.G. the authority
to impose an exclusion pursuant to section 1128(b)(3) of the Act. 42 C.F.R.
� 1001.401(a). The regulations specify a benchmark exclusion period of
three years, which may be lengthened or shortened based on the presence
of specific aggravating or mitigating factors listed in the regulations.
42 C.F.R. � 1001.401(c). V. ISSUES, FINDINGS OF FACTS AND CONCLUSIONS OF LAW
The issues in this case are:
I make findings of fact and conclusions of law (Findings) to support my decision in this case. I set forth each Finding, below, in italics, as a separately numbered heading. I discuss each finding in detail.
Petitioner does not dispute that, if the Pennsylvania
court's action constituted a conviction, that conviction, for unlawfully
prescribing a controlled substance and failing to keep a record of the
prescription and possession of a controlled substance, would be a basis
for the I.G. to impose a period of exclusion against her under the Act.
Petitioner argues only that the expungement of her conviction by the Pennsylvania
court means that no conviction ever existed and that the absence of a
conviction means that the I.G. is without a basis or the authority to
exclude her. I disagree. Section 1128(i) of the Act states that an individual will
be considered to have been "convicted" of a criminal offense for the purposes
of exclusion under section 1128(b) if "the individual . . . has entered
into participation in a first offender, deferred adjudication, or other
arrangement or program where judgment of conviction has been withheld."
Act, section 1128(i)(4). In amending the Act in 1986, Congress was particularly concerned that the exclusion remedy should apply to "first offender" or deferred adjudication dispositions:
Lily V. Nevrekar, M.D., DAB CR319 (1994) (quoting H.R. Rep. No. 727, 99th Cong., 2d Sess. 75 (1986), reprinted in 1986 U.S.C.C.A.N. 3607, 3665). Petitioner argues that the expungement of her conviction under section 19 removes the basis for her exclusion. However, the congressional committee amending the provisions of the Act in 1986 stated that the committee intended to include all instances of conviction which are removed from the criminal record of an individual for any reasons other than the vacating of the conviction itself, e.g., a conviction which is vacated on appeal. See id. In this case, Petitioner pled guilty, a conviction under section 1128(i)(3) of the Act, her plea was accepted by the Pennsylvania court, and she received a deferred adjudication under section 17. This is precisely the situation envisioned by section 1128(i)(4) of the Act. The fact that the Pennsylvania court set aside her plea and dismissed the charges against her does not affect her conviction for the purposes of the Act nor does it prohibit the I.G. from excluding her after her record was expunged following the conclusion of her deferred adjudication. See Conrad J. Sarnecki, Jr., D.O., DAB CR722.(4)
The regulations state, at 42 C.F.R. � 1001.401(c)(1), that in the absence of the aggravating or mitigating factors specified in 42 C.F.R. � 1001.401(c)(2) or 1001.401(c)(3), a three-year exclusion will be imposed for misdemeanor convictions relating to the unlawful manufacture, distribution, prescription or dispensing of a controlled substance. The I.G. has not asserted that aggravating factors exist in this case and Petitioner has not proved that any mitigating factors as specified in the regulations exist. Instead, Petitioner has asserted that the regulations are unfair because they do not recognize as mitigating factors situations in which a petitioner's conduct does not involve fraud or financial gain or injury to a patient or third party or where an individual has successfully been treated for addiction. I am unable to consider Petitioner's arguments regarding mitigating factors because I am bound by the regulations which limit the type of mitigating factors I can consider. The I.G. has excluded Petitioner for the minimum period specified in the regulations. As it is for the minimum period specified in the regulations, in the absence of specified mitigating or aggravating factors, I must find that Petitioner's exclusion is within a reasonable range of exclusion periods. VI. CONCLUSIONPetitioner has been convicted of a criminal offense within the meaning of section 1128(b)(3) of the Act. The regulations at 42 C.F.R. � 1001.401 require that, in the absence of specified mitigating or aggravating factors, a three-year period of exclusion must be imposed. This minimum exclusion, being mandated by the regulations, falls within a reasonable range of exclusion periods. Therefore, I sustain the three-year exclusion imposed against Petitioner by the I.G. |
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JUDGE | |
Marion T. Silva Chief Administrative Law Judge
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FOOTNOTES | |
1. P. Ex. 4 contains three attachments, which Petitioner has titled Exhibits 1 - 3. 2. The following paragraphs 1 - 11 are direct quotes from the I.G.'s brief. 3. Title 35, sec. 780-112(b) requires that every practitioner licensed by law to administer, dispense, or distribute controlled substances shall keep a record of all such substances administered, dispensed, or distributed. These records are required to show the amount administered, dispensed, or distributed, the date, the name and address of the patient to whom such substances are dispensed or distributed. See 35 Pa. Cons. Stat. Ann. � 780-112(b); I.G. Ex. 1 at 4. 4. Petitioner attempts to distinguish this case from Sarnecki because the administrative law judge's decision in Sarnecki did not expressly mention section 19. However, section 19 does not distinguish between misdemeanor and felony convictions and Petitioner was prosecuted under the same statute that was the subject of the Sarnecki exclusion. | |