John Thomas Gordon, D.D.S., DAB CR5358 (2019)

DECISION

Petitioner, John Thomas Gordon, D.D.S., is a dentist in the State of New York.  He was convicted of conspiracy to distribute oxycodone in violation of 21 U.S.C. §§ 846 and 841(b)(1)(C).  Based on the disposition of his criminal case, the Inspector General (IG), excluded Petitioner from participation in Medicare, Medicaid, and all federal health care programs for a period of five years, in accordance with section 1128(a)(4) of the Social Security Act (Act).  Petitioner appeals the exclusion.  For the reasons discussed below, I find that the IG properly excluded Petitioner.  Because five years is the minimum period of exclusion required by statute, a five-year exclusion is reasonable as a matter of law.

I. Background

On November 13, 2015, in the United States District Court for the Eastern District of New York (federal district court), Petitioner pleaded guilty to a criminal information charging him with conspiring to distribute a controlled substance containing oxycodone, a Schedule II controlled substance, contrary to 21 U.S.C. §§ 846 and 841(b)(1)(C).  IG Exhibits (Exs.) 2, 3.  The federal district court accepted Petitioner’s guilty plea.  IG Ex. 2.  On October 21, 2016, the court adjudicated Petitioner guilty of violating 21 U.S.C.

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§§ 846 and 841(b)(1)(C).  IG Ex. 4 at 1.  The federal district court sentenced Petitioner to five years’ probation and imposed a criminal monetary penalty of $100.00.  IG Ex. 4 at 2-5.

By letter dated December 31, 2018, the IG notified Petitioner that he was being excluded from Medicare, Medicaid, and all federal health care programs for a period of five years, effective 20 days from the date of the notice letter (i.e. January 20, 2019).  IG Ex. 1.  The notice letter further explained that Petitioner was excluded pursuant to section 1128(a)(4) of the Act because of his felony conviction of a criminal offense related to the unlawful manufacture, distribution, prescription, or dispensing of a controlled substance as defined under Federal or State law.  Id.  Petitioner timely requested review, and the case was assigned to me for hearing and decision.

I convened a telephone prehearing conference and issued an Order and Schedule for Filing Briefs and Documentary Evidence (Briefing Order).  Pursuant to my Briefing Order, the IG submitted a written argument (IG Br.) and five proposed exhibits (IG Exs. 1-5).  Petitioner filed his informal brief (P. Br.) along with three proposed exhibits (P. Exs. 1-3).  Neither Petitioner nor the IG objected to the exhibits offered by the opposing party.  Therefore, in the absence of objection, I admit into evidence IG Exs. 1-5 and P. Exs. 1-3.

I directed the parties to indicate in their briefs whether an in-person hearing would be necessary and, if so, to submit the testimony of any proposed witness as “written direct testimony in the form of an affidavit or declaration.”  Briefing Order ¶ 7.c.ii.  Neither party offered the written direct testimony of any witness.  Further, the parties agree that an in-person hearing is not necessary.  IG Br. at 4; P. Br. at 2.  I therefore decide this case based on the written record.

II. Discussion

A. Petitioner must be excluded from program participation because he was convicted of a criminal offense 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.1

The Act requires the Secretary of Health and Human Services (Secretary) to exclude from program participation any individual or entity that has been convicted of a felony that occurred after August 21, 1996, relating to the unlawful manufacture, distribution, prescription, or dispensing of a controlled substance.  Act § 1128(a)(4); see also 42 C.F.R. § 1001.101(d).

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An individual has been “convicted” within the meaning of the Act when “a judgment of conviction has been entered against the individual . . . by a Federal, State, or local court,” “when there has been a finding of guilt against the individual . . . by a Federal, State, or local court” or “when a plea of guilty or nolo contendere by the individual . . . has been accepted by a Federal, State, or local court.”  Act § 1128(i)(1), (2), (3); see also 42 U.S.C. § 1001.2.  The IG’s evidence demonstrates that, on November 13, 2015, the federal district court accepted Petitioner’s guilty plea.  IG Ex. 2.  Subsequently, on October 21, 2016, the court entered judgment finding Petitioner guilty of violating 21 U.S.C. §§ 846 and 841(b)(1)(C), resulting in a felony conviction.2  IG Ex. 4 at 1.

Petitioner’s conviction is plainly related to the unlawful prescription and distribution of a controlled substance.  He pleaded guilty to conspiracy to distribute oxycodone in violation of 21 U.S.C. §§ 841(b)(1)(C) and 846.  IG Ex. 4 at 1.  The elements of Petitioner’s offense are that Petitioner “knowingly and intentionally conspire[d] to distribute . . . a substance containing oxycodone, a Schedule II controlled substance.”  IG Ex. 3 at 1.  Further, Petitioner concedes that his conviction is for a felony criminal offense occurring after August 21, 1996, relating to the unlawful manufacture distribution, prescription, or dispensing of a controlled substance.  P. Br. at 1-2; Act § 1128(a)(4).  Accordingly, there is no dispute that Petitioner was convicted of a felony offense relating to the unlawful manufacture, distribution, prescription, or dispensing of a controlled substance, as defined in subsections 1128(a)(4) and1128(i)(1), (2), and (3) of the Act.

B. Petitioner must be excluded for five years, the minimum period required by law.

Section 1128(c)(3)(B) of the Act requires that individuals excluded under section 1128(a)(1)-(4) be subject to a minimum period of exclusion that is not less than five years.  Act § 1128(c)(3)(B); 42 C.F.R. § 1001.102(a).  An administrative law judge does not have discretion to decline to exclude Petitioner, nor to determine that the minimum exclusion period of five years is unreasonable.  42 C.F.R. § 1001.2007(a)(2).

Petitioner argues that a five-year exclusion is unreasonable because it would preclude him from complying with the requirements of his probation that he “work regularly at a lawful occupation” and that he “support his dependents and meet other family obligations.”  P. Br. at 6, 8; IG Ex. 4 at 2.  He claims that because he is a licensed dentist who has practiced for 26 years, he can only satisfy the work requirement of his probation by practicing dentistry.  P. Br. at 7.  Because exclusion from federal health care programs prevents him from being “employed by a provider to perform functions paid for, in whole

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or in part, by any federal health care program,” Petitioner argues that a five-year exclusion would prevent him from working and force him to violate the terms of his probation.  P. Ex. 1 at 3; P. Br. at 7.  Additionally, if Petitioner’s work opportunities are limited by the five-year exclusion, he claims he will not be able to support his family as required by the terms of his probation.  P. Br. at 8.  It is therefore Petitioner’s position that “exclusion for any period of time would be unfair and unjust as it pertains to upholding the conditions of [his] probation.”  Id.

Petitioner’s arguments are essentially equitable.  However, equitable considerations are not a basis to overturn Petitioner’s exclusion.  Appellate panels of the Departmental Appeals Board (DAB) have consistently rejected such arguments.  For example, in its decision in Henry L. Gupton, the panel stated:

[Petitioner’s] contentions are also in essence pleas for equity on the grounds that the length of the exclusion is excessive based on the particular circumstances which Petitioner asserts. . . . The contentions have no merit, however, because the length of the exclusion imposed by the [IG] is the minimum mandated by the statute.  Section 1128(a) of the Act.  The [IG], the [administrative law judge,] and the [DAB] all lack discretion to reduce the exclusion below the statutory minimum.

DAB No. 2058 at 13-14 (2007), aff’d, Gupton v. Leavitt, 575 F. Supp. 2d 874 (E.D. Tenn. 2008); see also Ioni D. Sisodia, M.D., DAB No. 2224 at 7 (2008).  Because Petitioner was convicted of a felony offense that is explicitly related to the unlawful distribution of a controlled substance, section 1128(a)(4) of the Act requires that he be excluded for not less than five years.  The duration of the exclusion is therefore reasonable as a matter of law.

III. Conclusion

For the reasons explained above, I conclude that the IG properly excluded Petitioner from participation in Medicare, Medicaid, and all federal health care programs, and I sustain the five-year exclusion, effective January 20, 2019.

• 1. My findings of fact and conclusions of law appear as headings in bold italic type.
• 2. Conspiracy to distribute oxycodone is a class C felony because the maximum term of imprisonment for the offense is 20 years. 18 U.S.C. § 3559(a)(3); see also 21 U.S.C. §§ 846, 841(b)(1)(C).