Pamela L. Gavlak, DAB CR5430 (2019)

DECISION

The Inspector General of the United States Department of Health and Human Services (the IG) excluded Petitioner, Pamela L. Gavlak, from participation in Medicare, Medicaid, and all other federal health care programs for five years, based on her criminal conviction for an offense related to the unlawful manufacture, distribution, prescription, or dispensing of a controlled substance.  Petitioner sought review of the exclusion.  For the reasons stated below, I affirm the IG’s exclusion determination.

I. Background and Procedural History

By letter dated January 31, 2019, the IG notified Petitioner that she was excluded from participating in Medicare, Medicaid, and all federal health care programs under section 1128(a)(4) of the Social Security Act (Act) for a period of five years due to her conviction for a criminal offense related to the unlawful manufacture, distribution, prescription, or dispensing of a controlled substance.  IG Exhibit (Ex.) 1.  The IG based the exclusion on Petitioner’s felony conviction in Pennsylvania state court of a criminal

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offense related to the unlawful manufacture, distribution, prescription, or dispensing of a controlled substance.  Id. at 1.  Petitioner timely requested a hearing before an Administrative Law Judge (ALJ) and I was designated to hear and decide this case.

I held a pre‑hearing telephone conference on April 25, 2019, the substance of which is summarized in my April 25, 2019 Order Summarizing Pre-hearing Conference and Setting Briefing Schedule (Summary Order).  Among other things, I directed the parties to file pre‑hearing briefs articulating their respective arguments as well as identifying witnesses and exhibits in support thereof.  Summary Order at 4‑5.

The IG timely filed a brief (IG Br.) and four exhibits (IG Exs. 1‑4), while Petitioner filed a brief (P. Br.) and five exhibits (P. Exs. 1‑5). 

II. Admission of Exhibits and Decision on the Record

Petitioner did not object to the IG’s proposed exhibits.  I therefore admit IG Exs. 1‑4 into evidence. 

Petitioner’s exhibits are not marked in accordance with the requirements set forth in my Summary Order.  Summary Order ¶ 7(d).  Nor did she submit her witness statements as “written direct testimony in the form of an affidavit or declaration that complies with 28 U.S.C. § 1746.”  Id. at ¶ 7(c)(ii).  Nevertheless, the IG did not object to Petitioner’s exhibits, and Petitioner’s exhibits, while minimally relevant, are not material to the outcome of this case.  Accordingly, I admit P. Exs. 1-5 into evidence.

The IG indicated that a hearing is not necessary and did not propose any witnesses.  IG Br. at 5.  Petitioner stated that a hearing is necessary and provided letters from five witnesses.  P. Br. at 2-3.  The IG did not request cross‑examination of Petitioner’s witnesses.  I have already admitted Petitioner’s proposed testimony into the record.  An in‑person hearing would therefore serve no purpose and the matter may be decided on the written record.  See Civ. Remedies Div. P. § 19(d). 

III. Issue

Whether the IG has a basis to exclude Petitioner from participation in all federal health care programs under section 1128(a)(4) of the Act (42 U.S.C. § 1320a-7(a)(4)).  42 C.F.R. § 1001.2007.

IV. Applicable Law

Section 1128(f) of the Act (42 U.S.C. § 1320a-7(f)) provides Petitioner with rights to a hearing before an ALJ and judicial review of the final action of the Secretary of Health and Human Services (Secretary).  The right to a hearing before an ALJ is set forth in

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42 C.F.R. §§ 1001.2007(a) and 1005.2, while the rights of both the sanctioned party and the IG to participate in a hearing are specified at 42 C.F.R. § 1005.3.

The Secretary must exclude from participation in federal health care programs “[a]ny individual or entity that has been convicted for an offense which occurred after August 21, 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.”  Act § 1128(a)(4) (42 U.S.C. § 1320a-7(a)(4)); see also 42 C.F.R. § 1001.101(d).

An individual is convicted of a criminal offense when:  (1) a judgment of conviction has been entered against him or her in a federal, state, or local court regardless of whether an appeal is pending or the record of the conviction is expunged; (2) there is a finding of guilt by a court; (3) a plea of guilty or no contest is accepted by a court; or (4) the individual has entered into any arrangement or program where judgment of conviction is withheld.  Act § 1128(i) (42 U.S.C. § 1320a-7(i)).  There may be no collateral attack of the conviction that provides the basis of the exclusion.  42 C.F.R. § 1001.2007(d).

Section 1128(c)(3)(B) of the Act (42 U.S.C. § 1320a-7(c)(3)(B)) provides that an exclusion imposed under section 1128(a) of the Act (42 U.S.C. § 1320a-7(a)) shall be for a minimum period of five years.  42 C.F.R. § 1001.102(a).  The exclusion is effective twenty days from the date of the notice of exclusion.  42 C.F.R. § 1001.2002(b).  The period of exclusion may be extended based on the presence of specified aggravating factors.  42 C.F.R. § 1001.102(b).  Mitigating factors are considered as a basis for reducing the period of exclusion only if aggravating factors justify an exclusion of longer than five years.  42 C.F.R. § 1001.102(c).

The standard of proof is a preponderance of the evidence.  42 C.F.R. § 1001.2007(c).  Petitioner bears the burden of proof and the burden of persuasion on any affirmative defenses or mitigating factors; the IG bears the burden on all other issues.  42 C.F.R. § 1005.15(c); Summary Order at 4.

V. Jurisdiction

Because Petitioner timely requested a hearing, I have jurisdiction to hear and decide this case.  See 42 C.F.R. §§ 1001.2007(a)(1)-(2), 1005.2(a); see also Act § 1128(f)(1) (42 U.S.C. § 1320a‑7(f)(1)).

VI. Findings of Fact, Conclusions of Law, and Analysis

My conclusions of law are set forth in bold and followed by pertinent findings of fact and analysis.

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A. There is a basis for Petitioner’s exclusion as she was convicted of a criminal offense within the meaning of section 1128(a)(4) of the Act.

Section 1128(a)(4) (42 U.S.C. § 1320a‑7(a)(4)) requires the Secretary to exclude from program participation any individual or entity convicted of a felony criminal offense that occurred after August 21, 1996, “relating to the unlawful manufacture, distribution, prescription, or dispensing of a controlled substance.”  See 42 C.F.R. § 1001.101(d).  As discussed below, the IG has established, by preponderance of the evidence, the elements necessary to exclude Petitioner.

Petitioner concedes that she was convicted of a felony occurring after August 21, 1996.  P. Br. at 1.  Nevertheless, I note for the record that on April 12, 2018, Petitioner pleaded guilty to possession with intent to deliver a controlled substance (cocaine), criminal conspiracy/possession with intent to deliver a controlled substance (cocaine), both felonies, and criminal use of a communication facility, a felony in the third degree.  IG Ex. 3 at 1.  The court accepted Petitioner’s guilty plea and sentenced Petitioner to incarceration for a minimum period of 22 months.1 Therefore, the record before me clearly reflects Petitioner was convicted of a felony after August 21, 1996.  Act § 1128(i) (42 U.S.C. § 1320a-7(i)).

Petitioner argues that her conviction was not related to the unlawful manufacture, distribution, prescription, or dispensing of a controlled substance because she “never sold or distributed a controlled substance . . . never possessed marked money, or was in the presence of distribution of controlled substances.”  P. Br. at 2.  She asserts that her conviction “stemmed from [her] family members using [her] home as a vehicle for distributing drugs.”  Req. for Hearing at 1.

By disputing her role in her offenses of conviction, Petitioner seeks to collaterally attack her convictions; I need not entertain her attempts to re-characterize the nature of her criminal conduct.  42 C.F.R. § 1001.2007(d).  Instead, it is sufficient to note that Petitioner pleaded guilty to a charge that on its face encompasses the intent to distribute controlled substances, which therefore must fall within the meaning of section 1128(a)(4) of the Act.  See Frank R. Pennington, M.D., DAB No. 1786 at 2 (2001) (concluding that a guilty plea to felony possession of crack cocaine with intent to distribute met the requirements for exclusion under section 1128(a)(4)). 

Furthermore, I note Petitioner pleaded guilty to one count of criminal conspiracy/possession with intent to deliver a controlled substance.  IG Ex. 3 at 1.  In a criminal conspiracy, each co‑conspirator is held equally liable regardless of which

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particular acts they took in furtherance of the conspiracy.  See Smith v. United States, 568 U.S. 106, 111 (2013) (“. . . a defendant who has joined a conspiracy . . . becomes responsible for the acts of his co‑conspirators in pursuit of their common plot.”) (citations omitted).  Thus, even if Petitioner never personally sold or distributed a controlled substance, she is equally liable for her co‑conspirators’ criminal acts.  Roland Mark Sartori, DAB CR5214 at 4‑5 (2018).

Ultimately, to require exclusion under section 1128(a)(4) of the Act, Petitioner’s conviction need only be related to the manufacture, distribution, prescription, or dispensing of a controlled substance.  The term “related to” simply means that there must be a nexus or common sense connection.  See Friedman v. Sebelius, 686 F.3d 813, 820 (D.C. Cir. 2012) (describing the phrase “related to” in another part of section 1320a‑7 as “deliberately expansive words,” “the ordinary meaning of [which] is a broad one,” and one that is not subject to “crabbed and formalistic interpretation.”) (internal quotation marks and citations omitted); see also Quayum v. U.S. Dep’t of Health & Human Servs., 34 F. Supp. 2d 141, 143 (E.D.N.Y. 1998).

Here, it is plainly evident that Petitioner’s offenses of conviction meet that broad, common sense standard.  Indeed, it is difficult to make a colorable argument that Petitioner’s conviction does not relate to the unlawful manufacture, prescription, distribution, or dispensing of a controlled substance.  She pleaded guilty to both possession with intent to distribute and conspiracy for possession with intent to distribute.  These charges on their face describe conduct falling within the meaning of section 1128(a)(4) of the Act.  Pennington, M.D., DAB No. 1786 at 2.  Accordingly, I have no difficulty concluding that Petitioner was convicted of a criminal offense that occurred after August 21, 1996 which related to the unlawful manufacture, distribution, prescription, or dispensing of a controlled substance, as contemplated by section 1128(a)(4) of the Act (42 U.S.C. § 1320a-7(a)(4)).

Petitioner’s remaining arguments also provide no basis to overturn the IG’s exclusion.  Petitioner explains that she has struggled to find employment post-conviction and reintegrate into society.  P. Br. at 2.  She contends that she has not been given a fair opportunity at a second chance.  Id.  Petitioner substantiates her efforts to improve her life with letters from character references who support her work in her community and describe her dedication to the nursing profession.  Id. at 3; see also P. Exs. 1‑5. 

I am sympathetic to Petitioner’s position, and fully credit her desire to serve her community using her professional skills.  However, these arguments are equitable in nature, and I may not “review the IG’s decision to impose an exclusion . . . on the ground that the excluded person is a good person or well-thought of in the profession or suffering from the loss of his/her vocation.”  Donna Rogers, DAB No. 2381 at 6 (2011); see also Stefan Murza, D.C., DAB No. 2848 at 4 (2018).

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B. Petitioner must be excluded for a minimum period of five years.

Because I have concluded that a basis exists to exclude Petitioner under section 1128(a)(4) of the Act (42 U.S.C. § 1320a-7(a)(4)), Petitioner must be excluded for a minimum period of five years.  Act § 1128(c)(3)(B) (42 U.S.C. § 1320a-7(c)(3)(B)); 42 C.F.R. §§ 1001.102(a), 1001.2007(a)(2).  The IG has no discretion to impose a lesser period of exclusion, and I may not reduce the period of exclusion below five years.

VII. Conclusion

For the foregoing reasons, Petitioner is excluded from participation in Medicare, Medicaid, and all federal health care programs for five years pursuant to section 1128(a)(4) of the Act (42 U.S.C. § 1320a-7(a)(4)), effective February 20, 2019.

• 1. The sentencing judge observed Petitioner would be eligible for an alternative minimum sentence/Recidivism Risk Reduction Incentive Program minimum, which would allow an alternative minimum sentence of 16 months and 15 days. IG Ex. 4 at 2.