Alicia Marie Smithey, DAB CR5106 (2018)

DECISION

Petitioner, Alicia Marie Smithey, was a pharmacy technician licensed in Alabama and Florida.  The Alabama Board of Pharmacy (Pharmacy Board) revoked Petitioner’s pharmacy technician license1 based on its conclusion that she engaged in or enabled the unauthorized practice of pharmacy and/or the operation of a pharmacy that was not properly licensed under Alabama law.  Now, pursuant to section 1128(b)(4) of the Social Security Act (Act),2 the Inspector General (I.G.) has excluded Petitioner from participation in Medicare, Medicaid, and all federal health care programs until she regains her pharmacy technician license in Alabama.

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For the reasons set forth below, I find that Petitioner’s pharmacy technician license was revoked for reasons bearing on her professional competence or professional performance.  The I.G. therefore had a legal basis to exclude her from program participation.  The duration of the exclusion is the minimum required by section 1128(c)(3)(E) of the Act; accordingly, it is reasonable as a matter of law.

I.  Background

In a letter dated October 31, 2017, the I.G. advised Petitioner that she was excluded from participation in Medicare, Medicaid, and all federal health care programs because her license to provide health care as a pharmacy technician in the State of Alabama was revoked, suspended, or otherwise lost for reasons bearing on her professional competence, professional performance, or financial integrity.  I.G. Exhibit (Ex.) 1.  The letter explained that section 1128(b)(4) of the Act authorizes the exclusion.  Id.  Petitioner timely requested review.  I convened a telephone prehearing conference and issued an Order and Schedule for Filing Briefs and Documentary Evidence (Briefing Order).

Pursuant to the Briefing Order, the I.G. submitted a brief and three proposed exhibits (I.G. Br.; I.G. Exs. 1-3).  Petitioner submitted a brief and three proposed exhibits (P. Br.; P. Exs. 1-3).  The I.G. submitted a reply brief (I.G. Reply).  Neither party objected to any of the exhibits proposed by the opposing party.  Therefore, in the absence of objection, I admit into evidence I.G. Exs. 1-3 and P. Exs. 1-3.

The parties agree that this case may be resolved without an in-person hearing.  I.G. Br. at 5; P. Br. at 5.  I therefore decide this case based on the written record.  See Briefing Order ¶ 9.

II.  Discussion

A. The I.G. is authorized to exclude Petitioner because the Alabama Pharmacy Board revoked Petitioner’s pharmacy technician license for reasons bearing on her professional competence or professional performance.3

The Act authorizes the Secretary of Health and Human Services (Secretary) to exclude from program participation an individual whose license to provide health care is revoked, suspended, or otherwise lost for reasons bearing on her professional competence, professional performance, or financial integrity.  Act § 1128(b)(4).  The Secretary has delegated this exclusion authority to the I.G.  42 C.F.R. § 1001.501(a).

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Petitioner does not dispute that her Alabama pharmacy technician license was revoked.  P. Br. at 1.  However, Petitioner does contend that the license revocation is not related to her professional competence or professional performance.  P. Br. at 2-4.  I disagree.

Following a hearing on January 24, 2017,4 the Pharmacy Board revoked Petitioner’s pharmacy technician license.  I.G. Ex. 2 at 1, 12.  The Pharmacy Board’s Final Order described the following conduct as a basis for revoking Petitioner’s license, along with those of other pharmacy technicians and an Alabama pharmacy:

9.   A patient would perform a Google search for a particular symptom, disease or related question resulting in an advertisement popup from C.V. McDowell Medical website in Fort Lauderdale, Florida; thereafter a prescription would be generated from various prescribers throughout the United States. . . .

10.   H & B Medical, a call center located in Bradenton, Florida received the prescriptions forwarded from the C.V. McDowell Medical website which would then designate the prescriptions to be forwarded to one of three pharmacies . . . including the Respondent Pharmacy.  If H & B Medical . . . determined there was payment for the prescription, the Respondent Pharmacy would be notified to dispense the prescription by mail. . . .

11.   The Respondent Technicians [including Petitioner], located in Florida, would input the prescription information resulting in the prescription and label to be sent via computer and/or by facsimile transmission to the Respondent Pharmacy.  The label would show the names or initials of the Respondent Technician located in Florida who input the prescription and the initials of the Alabama pharmacist scheduled to work the next day, which were made to appear [that] the Florida Respondent Technician was working at the Respondent Pharmacy in Alabama.

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I.G. Ex. 2 at 4-5.  Petitioner was employed at H & B Medical as an inventory specialist.  P. Br. at 6; see also P. Ex. 1 at 3.  Petitioner additionally acknowledges that C.V. McDowell Medical was a client of H & B Medical.  P. Ex. 1 at 2.

The Pharmacy Board revoked Petitioner’s pharmacy technician license because, among other reasons, it concluded that she violated Ala. Code § 34-23-131(a)5 by:

Engaging in or enabling the unauthorized practice of pharmacy and/or the operation of a pharmacy at a location in the State of Florida which did or does not possess a permit to operate a pharmacy by engaging in any or all of the following:  a) accepting for dispensing to patients prescriptions originally sent to a Florida location not licensed by the Board, . . . d) allowing individuals to whom the Board issued technician registrations to perform activities while not under the direct supervision of any licensed pharmacist . . .

I.G. Ex. 2 at 9-10.  The Pharmacy Board further concluded that Petitioner’s pharmacy technician license was subject to revocation because she was guilty of violating Ala. Code § 34-23-132(3).  I.G. Ex. 2 at 10.  That provision authorizes the Pharmacy Board to revoke a pharmacy technician’s license if the technician commits an “[a]ction which threatens the public health, safety, or welfare.”  In summary, the Pharmacy Board’s Final Order constitutes a finding that Petitioner’s actions as an employee of H & B Medical in Florida constituted or enabled the unauthorized practice of pharmacy (in that she was not under the direct supervision of a licensed pharmacist and that the Florida location was not licensed by the Alabama Pharmacy Board) and that this conduct posed a threat to public health, safety, or welfare.

The I.G. argues that these findings by the Pharmacy Board establish that Petitioner’s pharmacy technician license was revoked for reasons bearing on her professional competence or professional performance.  I.G. Br. at 3-4.  In response, Petitioner argues that she did not knowingly engage in unauthorized practice as a pharmacy technician and that she had no reason to know that her employer lacked the off-site permits required under Alabama law.  P. Br. at 3-4.  However, the I.G.’s authority to exclude does not depend on a finding that an individual intentionally violated a licensing requirement.  Rather, section 1128(b)(4) authorizes exclusion where an individual’s license is revoked and the revocation action concerns the individual’s professional competence or professional performance.  See Christy Nichols Frugia, DAB No. 2736 at 5 (2016) (argument that licensing board incorrectly found individual’s conduct adversely affected her professional competence or performance does not go to an issue material to the I.G.’s

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exclusion authority).  In the present case, I agree with the I.G. that the Pharmacy Board’s finding that Petitioner’s conduct posed a threat to public health, safety, or welfare bears on Petitioner’s professional competence or professional performance within the meaning of section 1128(b)(4) of the Act.  Therefore, the I.G. had a legal basis to exclude Petitioner.

Further, to the extent Petitioner argues that the proceedings before the Pharmacy Board were unfair or that she did not, in fact, engage in the conduct described in the Pharmacy Board’s Final Order, these contentions represent collateral attacks on her license revocation and, as such, are foreclosed by the applicable regulations.

B. Petitioner’s assertions that she did not commit the violations charged in the Pharmacy Board’s Final Order and that the proceedings before the Pharmacy Board were unfair represent impermissible collateral attacks on her license revocation which cannot be a basis to set aside her exclusion.

The regulations provide that when appealing an exclusion, an excluded party may not collaterally attack the conviction or civil or administrative judgment underlying the exclusion:

When the exclusion is based on the existence of a criminal conviction or a civil judgment imposing liability by Federal, State or local court, a determination by another Government agency, or any other prior determination where the facts were adjudicated and a final decision was made, the basis for the underlying conviction, civil judgment or determination is not reviewable and the individual or entity may not collaterally attack it either on substantive or procedural grounds in this appeal.

42 C.F.R. § 1001.2007(d).  Petitioner argues that her pharmacy technician license was revoked on a technicality in a default proceeding at which she was not present.  P. Br. at 2-3.  Petitioner additionally implies that she did not engage in the conduct charged in the Final Order.  See, e.g., id. at 2, 4 (Pharmacy Board’s Order did not make a finding of fact that any prescription label bore Petitioner’s initials); see also P. Ex. 1 at 2 (H & B Medical pharmacy technicians were allegedly under the direct supervision of an Alabama licensed pharmacist when they logged in remotely because the pharmacist had access to the same computer screen).  Both contentions are impermissible collateral attacks on the Pharmacy Board’s Final Order.

With regard to Petitioner’s suggestion that the Pharmacy Board’s process was unfair, 42 C.F.R. § 1001.2007(d) makes clear that proceedings before an administrative law judge on review of an exclusion are not the appropriate forum for Petitioner to air her grievances about the propriety of her license revocation.  If Petitioner “believes there are

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serious flaws” in the state’s action on which the exclusion is based, she “must challenge it ‘in the appropriate forum.’”  Marvin L. Gibbs, Jr., M.D.,DAB No. 2279 at 10 (2009), citing Leonard Friedman, M.D., DAB No. 1281 (1991).  Accordingly, Petitioner must challenge the Pharmacy Board’s Final Order, if at all, in an Alabama administrative or judicial proceeding.

Similarly, Petitioner’s apparent contention that the Pharmacy Board’s Final Order revoking her pharmacy technician license was based on an incomplete or incorrect understanding of the facts must be addressed to Alabama authorities.  The Pharmacy Board’s Final Order is a “prior determination where the facts were adjudicated and a final decision was made” within the meaning of 42 C.F.R. § 1001.2007(d).  Therefore, Petitioner may not retry the facts underlying her license revocation before me.

Finally, as explained in the following section of this decision, the regulations do not permit me to consider Petitioner’s assertion that mitigating factors weigh against her exclusion in this case.

C. Because the I.G. properly exercised his discretion to exclude Petitioner pursuant to section 1128(b)(4) of the Act, Petitioner must be excluded until she regains her pharmacy technician license in Alabama.

The Social Security Act provides that, in the case of an individual excluded pursuant to section 1128(b)(4) of the Act, the period of exclusion “shall not be less than the period during which the individual’s . . . license . . . is revoked, suspended, or surrendered . . . .”  Act § 1128(c)(3)(E); see also 42 C.F.R. § 1001.501(b).  The I.G. has excluded Petitioner until she regains her pharmacy technician license in Alabama.  I.G. Ex. 1.  Petitioner argues that a number of mitigating factors are present in her case.  P. Br. at 5-7.  For example, she argues that she has dedicated her career to the field of pharmacy; that she has a previously unblemished record of complying with Medicare rules and regulations; that she was not a manager at H & B Medical and simply followed instructions and company policy; and that she did not knowingly or intentionally violate the Alabama laws governing her practice as a pharmacy technician.  Id.  To the extent Petitioner asserts that there is a basis to impose a shorter exclusion based on these factors, I am without authority to consider them because the I.G. has imposed the minimum exclusion required by law.

Moreover, to the extent Petitioner makes a general appeal to equity, equitable considerations are not a basis to overturn or shorten Petitioner’s exclusion.  Thus, if Petitioner’s argument is that the I.G. should not have chosen to exclude her because her exclusion does not serve a remedial purpose (P. Br. at 7), I may not grant her relief on that basis.  I may not “review the I.G.’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);

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see also Stefan Murza, D.C., DAB No. 2848 at 4 (2018).  As both the Rogers and Murza decisions make clear, an administrative law judge may not review the I.G.’s exercise of discretion in deciding to exclude an individual pursuant to the I.G.’s permissive exclusion authority.

Finally, I note that, effective February 13, 2017, 42 C.F.R. § 1001.501 was amended by adding a new subsection (c).  See 82 Fed. Reg. 4100, 4113-14 (Jan. 12, 2017).  Subsection 1001.501(c)(1) authorizes the I.G. to consider early reinstatement of an individual if, after being fully informed of the circumstances leading to the exclusion, a state licensing authority (other than the one that originally suspended or revoked the individual’s license) grants the individual a new health care license or takes no adverse action against an existing health care license.  Id. at 4113.  Petitioner avers that she has an active pharmacy technician license in Florida.  P. Br. at 7.  Thus, if Florida permitted Petitioner to retain her pharmacy technician license (after being informed of the circumstances under which Petitioner’s Alabama license was revoked), Petitioner might be eligible for early reinstatement.  The record is silent on whether Petitioner made the Florida licensing authority aware of her Alabama license revocation.  But, even if the record included such facts, I have no authority to direct that Petitioner be granted early reinstatement.  The regulations delegate to the I.G. the discretion to grant or deny early reinstatement.  See 42 C.F.R. §§ 1001.3002(f); 1001.3004(c).

III.  Conclusion

For the above reasons, I conclude that the I.G. had a legal basis to exclude Petitioner from participation in Medicare, Medicaid, and all other federal health care programs for so long as her pharmacy technician license is revoked in the State of Alabama.

• 1. The Pharmacy Board refers to the authorization issued to Petitioner to practice as a pharmacy technician as a “registration” rather than a “license.”  Petitioner has not argued that her Alabama pharmacy technician registration is not a license within the meaning of the applicable statutory provision.  I therefore refer to Petitioner’s Alabama registration as a license in this decision.
• 2. The current version of the Social Security Act can be found at https://www.ssa.gov/OP_Home/ssact/ssact-toc.htm.  Each section of the Act on that website contains a reference to the corresponding United States Code chapter and section.
• 3. My findings of fact and conclusions of law are set out in bold italic type.
• 4. Petitioner did not appear before the Pharmacy Board.  I.G. Ex. 2 at 6; see also P. Br. at 2.  Petitioner avers that she did not receive notice of the hearing before the Pharmacy Board.  P. Ex. 1 at 2.  The Pharmacy Board’s Final Order recites that all respondents were “properly notified” of the charges against them.  I.G. Ex. 2 at 6.  I need not resolve this factual dispute because, as explained more fully below, any objections to the Pharmacy Board’s procedures or its decision must be addressed to the Pharmacy Board or a court of competent jurisdiction in Alabama.
• 5. Ala. Code § 34-23-131(a) provides, in pertinent part:  “A pharmacy technician shall not perform pharmacy functions or be present in the prescription department of a pharmacy unless he or she is under the direct supervision of a licensed pharmacist.”