Brandon Michael Coburn, DAB CR5247 (2019)

DECISION

Petitioner, Brandon Michael Coburn, was a nurse practitioner, licensed in the State of New York, who, as part of a criminal conspiracy, was paid to write bogus prescriptions for controlled substances, including fentanyl.  He was caught, indicted, and pled guilty to one felony count of conspiracy to possess fentanyl, with intent to distribute.  Based on this conviction, the Inspector General (IG) has excluded him for twenty years from participating in Medicare, Medicaid, and all federal health care programs, as provided for in section 1128(a)(4) of the Social Security Act (Act).  Petitioner concedes that he must be excluded for a minimum period of five years but challenges the length of the exclusion beyond the five years.  For the reasons discussed below, I find that the IG properly excluded Petitioner and that the twenty-year exclusion falls within a reasonable range.

Background

By letter dated March 30, 2018, the IG notified Petitioner Coburn that he was excluded from participating in Medicare, Medicaid, and all federal health care programs for a period of twenty years because he had been convicted of a criminal offense related to the

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unlawful manufacture, distribution, prescription, or dispensing of a controlled substance.  The letter explained that section 1128(a)(4) of the Act authorizes the exclusion.  IG Ex. 1.  Petitioner appeals.  He concedes that he was convicted and is subject to exclusion. Petitioner Brief (P. Br.) at 1, 2.

Each party submitted a written argument (IG Br.; P. Br.).  The IG also submitted five exhibits (IG Exs. 1-5) and a reply brief.  Petitioner submitted two exhibits (P. Exs. 1-2).  In the absence of any objections, I admit into evidence IG Exs. 1-5 and P. Exs. 1-2.

The parties agree that an in-person hearing is not necessary.  IG Br. at 10; P. Br. at 4.

Issue

Because the parties agree that the IG has a basis upon which to exclude Petitioner from program participation, the sole issue before me is whether the length of the exclusion (twenty years) is reasonable.  42 C.F.R. § 1001.2007.

Discussion

Section 1128(a)(4) mandates that the Secretary exclude from program participation any individual or entity convicted of a felony “relating to the unlawful manufacture, distribution, prescription, or dispensing of a controlled substance.”  See 42 C.F.R. § 1001.101(d).

Petitioner Coburn was a nurse practitioner, authorized to prescribe drugs.  Between July 2013 and May 2015, he conspired with others to possess and distribute Schedule II controlled substances – fentanyl, oxymorphone, oxycodone, and amphetamines.  As part of the scheme, he wrote drug prescriptions for people recruited by his cohorts.  He did not know these recruits; he did not treat them; the prescriptions served no legitimate medical purpose.  Petitioner’s co-conspirators paid him to write the prescriptions and paid the recruits to fill them and turn the drugs over to the co-conspirators.  IG Ex. 2 at 2‑3.

The conspirators were eventually caught, arrested, and, on October 29, 2015, charged with multiple counts of conspiracy to distribute and obtain, through fraud, controlled substances; distribution of fentanyl; distribution of oxycodone; and distribution of oxymorphone.  IG Ex. 3.

On May 11, 2017, Petitioner pled guilty to one count of conspiracy to possess with intent to distribute fentanyl.  IG Ex. 2.  On August 31, 2017, the district court for the Western District of New York accepted his plea and entered judgment against him on the felony count.  IG Ex. 4.  The court sentenced Petitioner Coburn to 108 months in prison, followed by two years of supervised release, and ordered him to pay $62,651.11 in

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restitution to the Centers for Medicare & Medicaid Services (which administers the Medicare program) and other health insurers.  IG Ex. 4 at 2, 3, 6, 7.

Petitioner was thus convicted of a felony relating to the unlawful distribution, prescription, or dispensing of a controlled substance and is subject to exclusion under section 1128(a)(4).

Based on three aggravating factors and no mitigating factors, the twenty-year exclusion is reasonable.1

I now consider whether the length of the exclusion, beyond five years, falls within a reasonable range.

An exclusion under section 1128(a)(4) must be for a minimum period of five years.  Act, § 1128(c)(3)(B); 42 C.F.R. §§ 1001.102(a), 1001.2007(a)(2).  Federal regulations set forth criteria for lengthening exclusions beyond the five-year minimum.  42 C.F.R. § 1001.102(b).  Evidence that does not pertain to one of the aggravating or mitigating factors (42 C.F.R. § 1001.102(c)) listed in the regulations may not be used to decide whether an exclusion of a particular length is reasonable.

Among the factors that may serve as bases for lengthening the period of exclusion are the three that the IG relies on in this case:  1) the acts that resulted in the conviction, or similar acts, caused a government program or another entity financial losses of $50,000 or more; 2) the sentence imposed by the court included incarceration; and 3) the convicted individual has been the subject of any other adverse action by any federal, state, or local government or board, if the adverse action is based on the same set of circumstances that serves as the basis for the exclusion.  42 C.F.R. § 1001.102(b).  The presence of an aggravating factor or factors, not offset by any mitigating factor or factors, justifies lengthening the mandatory period of exclusion.

Program financial loss (42 C.F.R. § 1001.102(b)(1)).  Petitioner concedes that the district court ordered him to pay $62,651.11 in restitution.  P. Br. Attachment 1 at 3; see IG Ex. 4 at 6.  Restitution has long been considered a reasonable measure of losses.  Hussein Awada, M.D., DAB No. 2788 at 7 (2017); Juan de Leon, Jr., DAB No. 2533 at 5 (2013); Craig Richard Wilder, DAB No. 2416 at 9 (2011).

Petitioner argues, however, that he should not be accountable for all of the program losses because the court ordered restitution “jointly and severally” among eight defendants.  P. Br. Attachment 1 at 3.  But the regulation directs me to consider “the entire amount of the financial losses”; it does not allow for reductions based on other’s joint or several liability.  42 C.F.R. § 1001.102(b)(1).  Petitioner’s crime caused financial

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losses greater than the $50,000 threshold for aggravation and justifies extending the period of exclusion beyond the five-year minimum.2

Moreover, an exclusion is supposed to protect program integrity and program beneficiaries.  As the regulation recognizes, the amount of program losses reflects, in part, the seriousness of the individual’s crime and thus the level of threat he poses to program integrity.  While the process is inexact, so long as the IG reasonably translates the aggravating factor into an increase in the period of exclusion, I must affirm his determination.  That a corrupt practitioner and the schemes in which he participates can cause health care programs substantial losses underscores the importance of excluding the unscrupulous.  Over time, health care programs simply cannot withstand these losses.

Incarceration (42 C.F.R. § 1001.102(b)(5)).  The criminal court sentenced Petitioner to a very substantial period of incarceration – 108 months (nine years).  IG Ex. 4 at 2.  While any period of incarceration justifies increasing the period of exclusion, the Departmental Appeals Board has repeatedly held that longer periods of incarceration are relevant in determining whether a period of exclusion is reasonable.  Eugene Goldman, M.D. a/k/a Yevgeniy Goldman, M.D., DAB No. 2635 at 6 (2015).  Generally, the longer the jail time, the longer the exclusion, because a lengthy sentence evidences a more serious offense.  See Jeremy Robinson, DAB No. 1905 (2004) (characterizing a nine-month incarceration as “relatively substantial.”).  Jason Hollady, M.D., DAB No. 1855 at 12 (2002); Stacy Ann Battle, DDS., DAB No. 1843 (2002) (finding that four months in a halfway house, followed by four months home confinement justifies lengthening the period of exclusion); Brenda Mills, M.D., DAB CR1461, aff’d DAB No. 2061 (2007) (finding that six months home confinement justifies an increase in length of exclusion).

That the court here sentenced Petitioner to such a long period of incarceration underscores the seriousness of his crimes and justifies significantly increasing his period of exclusion beyond the minimum five years.  See Awada, DAB No. 2788 at 12 (“The fact that the criminal court sentenced Petitioner to seven years of jail time even after taking into account his cooperation, his efforts to rehabilitate himself, and willingness to seek treatment for his mental conditions reflects the gravity of his criminal conduct and lends additional support to the ALJ’s determination that a significant extension of the minimum exclusion period was appropriate in this case.”).

Other adverse actions (42 C.F.R. § 1001.102(b)(9)).  Following Petitioner’s felony conviction, the Office of the Medicaid Inspector General for the State of New York excluded him from participating in the State Medicaid program.  In a notice letter dated

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October 20, 2017, the state office explained that New York law authorizes the exclusion because Petitioner was convicted of a crime related to the furnishing of, or billing for, medical care, services, or supplies.  IG Ex. 5.

Mitigating factor.  The regulations consider mitigating just three factors:  1) a petitioner was convicted of three or fewer misdemeanor offenses and the resulting financial loss to the program was less than $5,000; 2) the record in the criminal proceedings demonstrates that a petitioner had a mental, physical, or emotional condition that reduced his culpability; and 3) a petitioner’s cooperation with federal or state officials resulted in others being convicted or excluded, or additional cases being investigated, or a civil money penalty being imposed.  42 C.F.R. § 1001.102(c).  The Petitioner bears the burden of proving any mitigating factor by a preponderance of the evidence.  42 C.F.R. § 1005.15(b)(1); Barry D. Garfinkel, M.D., DAB No. 1572 at 8 (1996).  The relevant inquiry is “whether a petitioner has proven that the sentencing court determined that the mental disorder reduced the petitioner’s culpability.”  Awada, DAB No. 2788 at 16 (citations omitted).

Petitioner argues that he was addicted to drugs and points out that, in sentencing, the court recommended that he be placed in the Bureau of Prison’s drug treatment program.  P. Br. Attachment 1 at 4; IG Ex. 4 at 2.  But this does not establish that Petitioner had a physical, mental, or emotional condition that reduced his culpability.

The sentencing record here is thin; it includes the arguments submitted by Petitioner’s attorneys during the criminal proceedings, but no articulation of the court’s thinking in sentencing.  The court’s actions, however, provide some insight.  Sentencing guidelines dictated a sentencing range of 108 to 135 month’s imprisonment.  P. Ex. 2 at 2.  Petitioner submitted to a mental health evaluation and drug testing, which probation authorities used in preparing a pre-sentencing report.  That report calculated the same sentencing range:  108 to 135 months.  P. Ex. 2 at 2.  Based in significant part on Petitioner’s opiate addiction, Petitioner’s attorneys argued that “a nine-year sentence of incarceration is far greater than necessary in this case and is simply unwarranted.”  P. Ex. 2 at 15.  The court nevertheless followed the sentencing guidelines and imposed a nine-year sentence, which suggests that, in the court’s view, Petitioner’s addiction did not reduce his culpability.  See Russell Mark Posner, DAB No. 2033 at 11 (2006) (finding evidence of eligibility for residential drug treatment insufficient to establish a mitigating factor.).

In any event, Petitioner has not met his burden of establishing, based on the record in his criminal proceedings, that his physical, mental, or emotional condition reduced his culpability.

Petitioner was convicted of a serious felony.  His conduct cost health insurers significant financial losses and warranted a lengthy prison sentence.  He was excluded from

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participating in the New York Medicaid program.  I find that his criminal behavior and the period of his incarceration demonstrate that he is untrustworthy, and justify the twenty-year exclusion.

Conclusion

The IG properly excluded Petitioner from participating in Medicare, Medicaid, and other federal health care programs.  So long as the period of exclusion is within a reasonable range, based on demonstrated criteria, I have no authority to change it.  Joann Fletcher Cash, DAB No. 1725 at 7 (2000), citing 57 Fed. Reg. 3298, 3321 (1992).  I find that the twenty-year exclusion falls within a reasonable range.

• 1. I make this one finding of fact/conclusion of law.
• 2. Until February 13, 2017, a $5,000 program loss was considered an aggravating factor, but this amount has been increased.  82 Fed. Reg. 4100, 4103, 4112 (Jan. 12, 2017).  Although his conviction pre-dated the change, I apply the amount in effect at the time the IG imposed Petitioner’s exclusion, March 30, 2018.