Department of Health and Human Services DEPARTMENTAL APPEALS BOARD Civil Remedies Division |
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IN THE CASE OF | |
Conrad J. Sarnecki, Jr., D.O., |
DATE: December 13, 2000 |
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The
Inspector General
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Docket No.C-00-575
Decision No. CR722 |
DECISION | |
By letter dated April 28, 2000, the Inspector General (I.G.), U.S. Department of Health and Human Services (DHHS), notified Conrad J. Sarnecki, Jr., D.O. (Petitioner), that he would be excluded from participation in the Medicare, Medicaid, and all federal health care programs as defined in section 1128B(f) of the Social Security Act (Act), for a period of five years.(1) The I.G. explained that the five-year exclusion was mandatory under sections 1128(a)(4) and 1128(c)(3)(B) of the Act, because Petitioner had been convicted in the Court of Common Pleas of Luzerne County, Pennsylvania of a criminal offense relating to the unlawful manufacture, distribution, prescription, or dispensing of a controlled substance. Petitioner filed a request for review of the I.G.'s action.
The I.G. moved for summary disposition. Petitioner also moved for summary
disposition. Because I have determined that there are no material and
relevent factual issues in dispute (the only matter to be decided is the
legal significance of the undisputed facts), I have decided the case on
the basis of the parties' written submissions in lieu of an in-person
hearing. Both parties submitted briefs in this matter. The I.G.
submitted eight proposed exhibits (I.G. Ex. 1-8). Petitioner did not object
to these exhibits, and I accept into I.G. Ex. 1-8 into evidence. The I.G.
also submitted a reply brief in this matter. Petitioner did not submit
any exhibits. I grant the I.G.'s motion for summary disposition. I affirm
the I.G.'s determination to exclude Petitioner from participation in the
Medicare and Medicaid, and all federal health care programs for a period
of five years.
APPLICABLE LAW Sections 1128(a)(4) and 1128(c)(3)(B) of the Act mandate
exclusion of any individual who has been convicted of a felony criminal
offense relating to the unlawful manufacture, distribution, prescription,
or dispensing of a controlled substance from participation in Medicare,
Medicaid, and all federal health care programs for a period of at least
five years. Section 1128(i) of the Act provides that an individual
or entity is considered to have been "convicted" of a criminal offense:
Section 1128(i) of the Act establishes four alternative
definitions of the term "convicted." An individual or entity need satisfy
only one of the four definitions under section 1128(i) to establish that
the individual or entity has been convicted of a criminal offense within
the meaning of the Act.
PETITIONER'S ARGUMENTS Petitioner contends that he was not convicted within the
meaning of section 1128(i) of the Act. Petitioner contends that the procedure
under which he was tried did not result in a conviction under Pennsylvania
law. He notes that under Pennsylvania law, probation was imposed without
verdict and his guilty plea was expunged and the charges against him were
dismissed upon his successful completion of probation. Pennsylvania statute
provides that the court shall discharge such a person and dismiss the
proceedings within and that such discharge and dismissal shall be without
adjudication of guilt and shall not constitute a conviction for any purpose
whatsoever. 35 Penn. Stat. �780-117. Further, Petitioner asserts that his violation involved
self-medication and did not involve any injury to a third party. Moreover,
Petitioner notes that there was no element of gain or financial benefit
to him. Finally, Petitioner maintains that it is a violation of
his constitutional rights to exclude him as he claims such action constitutes
double jeopardy, since he has already been tried for the same conduct
in a criminal proceeding. He also contends that an exclusion represents
the imposition of an ex post facto application of law. Petitioner asserts
that his exclusion is barred under the procedure of Pennsylvania law,
which permitted the imposition of probation without verdict and provides
that discharge under such procedure shall not constitute a conviction
for any purpose.
FINDINGS OF FACT AND CONCLUSIONS OF LAW 1. During the period relevent to this case, Petitioner
was licensed to practice osteopathic medicine and surgery in the Commonwealth
of Pennsylvania. I.G. Ex. 5. 2. On May 8, 1998, Petitioner was charged in a Police
Criminal Complaint with 16 counts of knowingly and intentionally acquiring
or obtaining possession of Hydrocone/APAP 7.5mg/500, a Schedule III controlled
substance, from CVC Pharmacy in Kingston, Pennsylvania, through illegal
prescriptions, in violation of Section 13(a)(12) of Act 64 of the Pennsylvania
Controlled Substance, Drug, Device and Cosmetic Act. I.G. Ex.3. 3. On December 10, 1998, in the Court of Common Pleas
of Luzerne County, Pennsylvania, Petitioner pleaded guilty to all 16 felony
counts as charged. I.G. Exs. 4 and 5. 4. The Court accepted Petitioner's guilty plea and sentenced
him to one year of probation "without a verdict" on the condition that
he comply with the terms of the drug treatment program of the Pennsylvania
Medical Society. I.G. Exs. 4 and 5. 5. On January 26, 2000, on Petitioner's Motion for Dismissal
of Charges and Expungement of Record, the Court of Common Pleas of Luzerne
County ordered that Petitioner's charges be dismissed and that his arrest
record related to these charges be expunged from "the criminal repositiories
of all criminal and justice agencies" because Petitioner had successfully
met the conditions of probation by completing the drug treatment program
of the Pennsylvania Medical Society. I.G. Exs. 6,7, and 8. 6. The Secretary of DHHS has delegated to the I.G. the
duty to determine and impose exclusions pursuant to section 1128(a)(4)
of the Act. 7. On April 28, 2000, the I.G. notified Petitioner that he was being excluded from participation in the Medicare/Medicaid program for a period of five years pursuant to section 1128(a)(4) of the Act. I.G. Ex. 1. 8. Once an individual has been convicted of a felony criminal
offense related to the unlawful manufacture, distribution, prescription,
or dispensing of a controlled substance under section 1128(a)(4) of the
Act, exclusion is mandatory under section 1128(c)(3)(B) of the Act. 9. Where the I.G. excludes an individual pursuant to section
1128(a)(4) of the Act, the minimum term of exclusion is five years pursuant
to section 1128(c)(3)(B) of the Act. 10. Petitioner's entry of a guilty plea and the acceptance
of such plea by the Luzerne County Court, Commonwealth of Pennsylvania,
constitutes a conviction within the meaning of sections 1128(i)(3) and
(4) of the Act. 11. Petitioner's felony conviction related to the unlawful
prescription or dispensing of a controlled substance is within the scope
of section 1128(a)(4) of the Act. 12. The I.G. properly excluded Petitioner, pursuant to
section 1128(a)(4) of the Act, for a period of five years, as required
by the minimum mandatory exclusion provision of section 1128(c)(3)(B)
of the Act.
DISCUSSION The first statutory requirement for the imposition of
mandatory exclusion pursuant to section 1128(a)(4) of the Act is that
the individual or entity in question be convicted of a criminal offense
under federal or state law. I find that this requirement is met in Petitioner's
case. The term "convicted" is defined in section 1128(i) of the Act. Section
1128(i) of the Act established for alternative definitions of the "convicted."
An individual or entity need satisfy only one of the four definitions
under section 1128(i) to establish that the individual or entity has been
convicted of a criminal offense within the meaning of the Act. The record reflects that Petitioner pleaded guilty to
sixteen counts of knowingly and intentionally acquiring or obtaining Hydrocone/APAP
7.5 mg/500, a Schedule III controlled substance, from CVC Pharmacy in
Kingston, Pennsylvnia, through illegal prescriptions in violation of section
13(a)(12) of Act 64 of the Pennsylvania Controlled Substance, Drug, Device
and Cosmetic Act. The Court accepted his plea and sentenced him to probation
without verdict for one year. Therefore, Petitioner was convicted within
the meaning of section 1128(i)(3). A plea is "accepted within the meaning
of section 1128(i)(3) of the Act whenever a party offers a plea and a
court consents to receive it as an element of an arrangement to dispose
of a pending criminal matter." Maximo Levin, M.D., DAB CR343 (1994);
Lila M. Nevrekar, M.D., DAB CR319 (1994). I further find that Petitioner was convicted within the
scope of section 1128(i)(4) of the Act. The record reflects that Petitioner
was sentenced pursuant to a deferred adjudication procedure. Departmental
Appeals Board (DAB) decisions, which have dealt with such deferred adjudications,
have held that such procedures constitute convictions within the scope
of section 1128(i)(4) of the Act. Benjamin P. Council, M.D., DAB
CR391 (1995); Carlos E. Zamora, M.D., DAB CR22 (1989) (five-year
exclusion of physician who entered a plea of nolo contendere which was
later withdrawn upheld). The petitioner in Council entered a guilty
plea and was not adjudicated guilty or sentenced but was instead placed
on probation as part of a deferred sentencing option. Based on those facts,
the administrative law judge (ALJ) held that the petitioner had entered
into a deferred sentencing arrangement within the scope of section 1128(i)(4)
of the Act. In the present case, it is clear that judgment of conviction has been withheld as Petitioner satisfactorily completed his probation term but, under DAB precedent cited above, such procedure is within the scope of section 1128(i)(4) of the Act. The fact that the court set aside Petitioner's plea and dismissed the charge does not affect Petitioner's conviction for purposes of the Act. There is nothing in the Act that prohibits the I.G. from excluding a petitioner after a case has been dismissed following a deferred adjudication. Aida Cantu, CR462 (1997). For the purposes of the Act, it is the fact of the conviction itself that gives the I.G. authority to exclude. Id. Here, Petitioner has been convicted within the meaning of sections 1128(i)(3) and (4) of the Act. Next, it is required under section 1128(a)(4) of the Act
that the crime at issue be a felony relating to the unlawful manufacture,
distribution, prescription, or dispensing of a controlled substance. The
record established that these elements existed in Petitioner's case and
he does not challenge that these statutory requirements have been satisfied.
Petitioner does assert that his offense involved self-medication, did
not involve injury to a third party, and did not involve finncial gain
to him. To the extent that such assertions involve a collateral attack
on his conviction, such claims are not permitted in the context of an
exclusion appeal. Paul R. Scollo, D.P.M., DAB No. 1498 (1994);
Ernest Valle, DAB CR309 (1994); Peter Edmonson, DAB No.
1330 (1992).(2) Petitioner also argues that to exclude him from the Medicare,
Medicaid, and all federal health care programs would violate the constitutional
protection against double jeopardy because he has been punished in the
course of the Pennsylvania criminal case. The ALJ however has no authority
to rule upon the constitutionality of the I.G.'s actions. See,
e.g., Roberta E. Miller, DAB CR367 (1995). Moreover, the
DAB and federal courts have found that exclusions imposed under section
1128 of the Act are remedial in nature, rather than punitive, and do not
violate the double jeopardy provision of the Constitution. Id.
at 6-7; Manocchio v. Kusserow, 961 F.2d 1539, 1541 (11th Cir. 1992);
Kahn v. Inspector General of the U.S. Department of Health and Human
Services, 848 F.Supp. 432 (S.D.N.Y. 1994); Westin v. Shalala,
845 F.Supp. 1446 (D. Kan. 1994); Joann Fletcher Cash, DAB No. 1725
(2000). Because the purpose of Petitioner's exclusion is to protect program
beneficiaries and not to punish Petitioner, this exclusion is remedial
in nature. Paul Karsch, DAB CR454 (1997). Petitioner also maintains that his exclusion represents
the imposition of an ex post facto law. The record reflects that the offenses
in question occurred between April 15, 1997 and July 24, 1997 and that
he pleaded guilty on December 10, 1998. Section 1128(a)(4) was effective
January 1, 1997, prior to Petitioner's crimes. In fact, the language of
section 1128(a)(4) states that it applies to any individual who has been
convicted for an offense which occurred after the date of the enactment
of the Health Insurance Portability and Accountability Act of 1996, i.e.,
January 1, 1997. Moreover, the civil remedy of exclusion does not trigger
the protections afforded by the constitution which are applicable to criminal
laws. Cherlyn J. Parrish, M.D., DAB CR560 (1998). Finally, Petitioner asserts that his exclusion is barred
under the procedure of Pennsylvania law, which permitted the imposition
of probation without verdict as such law provides that discharge under
such procedure shall not constitute a conviction for any purpose. I find
no merit in such claim. Section 1128(i) specifically addresses the fact
that an individual is considered to have been "convicted" for purposes
of an exclusion under section 1128(a) regardless of whether "the individual...has
entered into participation in a first offender, deferred adjudication,
or other arrangement or program where judgment of conviction has been
withheld." Section 1128(i)(4) of the Act. Thus, "Congress defined the
effect that was to be given to State criminal dispositions such as the
one at issue here. Congress stated that such arrangements were to be considered
as convictions for purposes of the Federal exclusion law, even if they
were not convictions under State law." Michael P. Hiotis, DAB CR316
(1994). The I.G.'s decision to exclude Petitioner from all federal health
care programs is a matter governed by federal law, based on the Supremacy
Clause of the United States Constitution. Id. "To allow the State
to bar enforcement of the Federal law would be to frustrate and override
Federal law in violation of the Supremacy Clause." Diane Amicucci,
L.P.N., DAB CR540 (1998) (quoting Janet Wallace, L.P. N., DAB
No. 1326 (1992)). Consequently, Petitioner's exclusion under section 1128(a)(4)
of the Act is not precluded by the dismissal of the charges and expungement
of his criminal record by the Pennsylvania court.
CONCLUSION Sections 1128(a)(4) and 1128(c)(3)(B) of the Act mandate that Petitioner herein be excluded from the Medicare and Medicaid programs for a period of at least five years because he has been convicted of a criminal offense. The five-year exclusion is therefore sustained. |
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JUDGE | |
Joseph K. Riotto Administrative Law Judge |
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FOOTNOTES | |
1. In this decision, I use the term "Medicaid" to include any State health care program which receives federal funds, as defined by section 1128(h) of the Act. 2. As the I.G. has imposed the minimum term of exclusion, to the extent Petitioner makes such claims in mitigation, such claims are not relevant. | |