Department of Health and Human Services DEPARTMENTAL APPEALS BOARD Civil Remedies Division |
|
IN THE CASE OF | |
John L. Grant, M.D., |
DATE: February 9, 2001 |
- v - |
|
The
Inspector General
|
Docket No.C-00-867 Decision No. CR737 |
DECISION | |
I decide that the Inspector General (I.G.) is authorized
to exclude Petitioner, John L. Grant, M.D., from participating in Medicare
and other federally funded health care programs, pursuant to section 1128(a)(4)
of the Social Security Act (Act). The authority for excluding Petitioner
arises from Petitioner's conviction of a felony relating to the unlawful
manufacture, distribution, prescription, or dispensing of a controlled
substance. I decide also that the length of the exclusion that the I.G.
imposed against Petitioner, five years, is not unreasonable, inasmuch
as the exclusion is for the minimum period that is required by law for
exclusions that are imposed under section 1128(a) of the Act. I. Background Petitioner is a physician and a board certified neurological
surgeon. On July 31, 2000, the I.G. notified Petitioner that he was being
excluded, pursuant to section 1128(a)(4) of the Act, from participating
in Medicare and other federally funded health care programs for a term
of five years. Petitioner requested a hearing and the case was assigned
to me. I held a prehearing conference by telephone at which the parties
agreed that the case could be heard and decided based on written submissions.
Each side has supplied me with submissions in accordance with the prehearing
order that I issued. The I.G. filed four proposed exhibits (I.G. Ex. 1 - I.
G. Ex. 4) as part of its submission in this case. Petitioner filed a series
of letters, totaling 19 pages, as part of his submission. Petitioner did
not label these letters as exhibits, although it is apparent that he wishes
me to consider them in my evaluation of the merits.
I am electing to designate all of these letters as a single exhibit (P.
Ex. 1). I receive into evidence I.G. Ex. 1 - I.G. Ex. 4 and P. Ex. 1. II. Issues, findings of fact and conclusions of
law
The issues in this case are whether:
I make findings of fact and conclusions of law (Findings)
to support my decision in this case. I set forth each Finding below as
a separately numbered heading. I discuss each Finding in detail.
The I.G. determined to exclude Petitioner pursuant to
section 1128(a)(4) of the Act. This section requires the I.G. to exclude
any individual or entity:
Act, section 1128(a)(4). In order for authority to exclude under section 1128(a)(4) to be present, the following must be established:
On August 3, 1999, a criminal information was filed against
Petitioner in the United States District Court for the Eastern District
of Virginia, Norfolk Division. I.G. Ex. 2 at 1 - 2. The information charged
that, on or about July 28, 1997, Petitioner knowingly and intentionally
aided and abetted the acquisition and obtaining of a Schedule III controlled
substance (Fioricet with Codeine), by misrepresentation, fraud, deception,
and subterfuge. Id. at 1. It alleged that Petitioner fraudulently
utilized his Drug Enforcement Agency registration to obtain, in the absence
of a doctor-patient relationship and without a legitimate medical purpose,
controlled substances for another individual who was addicted to and dependent
on controlled substances. Id. at 1 - 2. It charged that these acts
were in violation of Title 21, section 843(a)(3) and Title 18, section
2, of the United States Code. Id. at 2. Petitioner agreed to plead guilty to the criminal information.
I.G. Ex. 3 at 1. On November 9, 1999, he entered a guilty plea. I.G. Ex.
4 at 1. The evidence in this case plainly establishes the elements
that are necessary for an exclusion under section 1128(a)(4) of the Act.
First, Petitioner pled guilty under federal law to a felony. I.G. Ex.
4 at 1. I take notice that the criminal offenses to which Petitioner pled
guilty, 21 U.S.C. � 843(a)(3) and 18 U.S.C. � 2, are felonies. Second, the offenses to which Petitioner pled guilty occurred
after August 21, 1996. The criminal information pursuant to which Petitioner
entered his guilty plea charged that Petitioner engaged in criminal conduct
on or about July 28, 1997. Third, Petitioner's conviction related to the unlawful
prescription or dispensing of a controlled substance. Petitioner was charged
with, and pled guilty to, unlawfully using his Drug Enforcement Administration
registration to obtain a controlled substance for use by another individual.
The acts which were the basis for Petitioner's criminal conviction occurred
outside of, and were not a part of, a doctor-patient relationship.
An exclusion that is imposed pursuant to any of the subparts
of section 1128(a) of the Act is mandatory. The
I.G. has no choice but to impose an exclusion where an individual, such
as Petitioner, is convicted of an offense within the meaning of section
1128(a)(4). The Act prescribes the minimum period of exclusion that must
be imposed for an exclusion imposed under one of the subparts of section
1128(a). That minimum period is five years. Act, section 1128(c)(3)(B). The I.G. had no choice but to exclude Petitioner for a
minimum of five years inasmuch as Petitioner was convicted of a criminal
offense within the meaning of section 1128(a)(4). In this case, the I.G.
imposed the minimum exclusion period. Therefore, as a matter of law, the
five-year exclusion that the I.G. imposed against Petitioner is reasonable. Petitioner argues that the inevitable effect on him of
the exclusion imposed by the I.G. will be to end his career as a neurosurgeon.
He asserts that, as a consequence of his exclusion, he will lose his privileges
to practice in full service medical centers, thereby cutting him off from
access to the type of medical care that he specializes in providing. I
do not doubt that the effect on Petitioner of the exclusion may be profound.
However, Congress has made a decision that, in the case of an individual
who is excluded pursuant to one of the subparts of section 1128(a), the
I.G. must impose an exclusion of at least five years. The I.G.
has no choice in this case but to impose the minimum exclusion and I am
without authority to modify the length of that exclusion regardless of
the equities that may exist in Petitioner's case. I note also that Petitioner has offered a number of letters from professional colleagues that attest to his skills as a surgeon and to his personal qualities. P. Ex. 1. I do not doubt the sincerity of the support that Petitioner's colleagues have given to Petitioner. But, in this case, I have no choice but to sustain the minimum exclusion that the I.G. imposed against him. |
|
JUDGE | |
Steven T. Kessel Administrative Law Judge
|
|