Roland Mark Sartori, DAB CR5214 (2018)

DECISION

The Inspector General of the United States Department of Health and Human Services (the IG) excluded Petitioner, Roland Mark Sartori, from participation in Medicare, Medicaid, and all other federal health care programs for five years, based on his criminal conviction for an offense related to the unlawful manufacture, distribution, prescription, or dispensing of a controlled substance.  Petitioner sought review of the exclusion.  For the reasons stated below, I affirm the IG’s exclusion determination.

I. Procedural History

By letter dated February 28, 2018, the IG notified Petitioner that he was excluded from participating in Medicare, Medicaid, and all federal health care programs under section 1128(a)(4) of the Social Security Act (Act) for a period of eight years due to his conviction for a criminal offense related to the unlawful manufacture, distribution, prescription, or dispensing of a controlled substance.  IG Ex. 1.1   The IG relied on one aggravating factor to extend the term of Petitioner’s exclusion to eight years.  Id.  Petitioner timely requested a hearing before an administrative law judge (ALJ).

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On June 7, 2018, I held a pre-hearing telephone conference, the substance of which is summarized in my June 13, 2018 Order Summarizing Pre-hearing Conference and Setting Briefing Schedule (Summary Order).  Among other things, I directed the parties to file pre-hearing briefs articulating their respective arguments as well as identifying witnesses and providing documentary evidence in support thereof.  Summary Order at 3.

The IG filed a brief (IG Br.) and nine exhibits (IG Exs. 1-9), while Petitioner filed a brief (P. Br.) and two exhibits (P. Exs. 1-2).  The IG then submitted a reply brief (IG Reply).

On August 10, 2018, the same day the IG filed his pre-hearing exchange, he issued a notice to Petitioner amending the period of exclusion to the minimum statutory period of five years.  IG Ex. 9.

II. Admission of Exhibits and Decision on the Record

Petitioner offered no objections to the IG’s exhibits.  I admit IG Exs. 1 through 9 into evidence.  The IG objects to both of Petitioner’s proposed exhibits as irrelevant, since they relate to actions taken by the state of New York that affected his professional licensure and have no bearing on the basis of this exclusion action.  IG Reply at 3.  The IG’s objection is overruled.  Petitioner’s proffered documents provide the underlying factual basis for his conviction in the case of Exhibit 1, and establish he was a physician’s assistant empowered to prescribe controlled substances at the time his relevant offense conduct occurred, in the case of Exhibit 2.  These exhibits are therefore at least minimally relevant.  I admit P. Exs. 1 and 2 into the record.

Neither party requested an in-person hearing or identified any witnesses whose testimony they wished to offer.  IG Br. at 5; P. Br. at 3-4.  Accordingly, an in-person hearing would serve no purpose, and the matter may be decided on the written record.  See Civ. Remedies Div. Pro. § 19(d).

III. Issues

Whether the IG has a basis to exclude Petitioner from participation in federal health care programs under section 1128(a)(4) of the Social Security Act.  42 C.F.R. § 1001.2007.

IV. Applicable Law

Section 1128(f) of the Act (42 U.S.C. § 1320a-7(f)) provides Petitioner with rights to a hearing before an ALJ and judicial review of the final action of the Secretary of Health and Human Services (Secretary).  The right to a hearing before an ALJ is set forth in 42 C.F.R. §§ 1001.2007(a) and 1005.2, while the rights of both the sanctioned party and the IG to participate in a hearing are specified by 42 C.F.R. § 1005.3.

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The Secretary must exclude from participation in federal health care programs any individual that has been convicted for a criminal offense consisting of a felony relating to the unlawful manufacture, distribution, prescription, or dispensing of a controlled substance as defined under federal or state law.  42 U.S.C. § 1320a-7(a)(4).

Pursuant to section 1128(i) of the Act (42 U.S.C. § 1320a-7(i)), an individual is convicted of a criminal offense when:  (1) a judgment of conviction has been entered against him or her in a federal, state, or local court whether an appeal is pending or the record of the conviction is expunged; (2) there is a finding of guilt by a court; (3) a plea of guilty or no contest is accepted by a court; or (4) the individual has entered into any arrangement or program where judgment of conviction is withheld.  The statute does not distinguish between misdemeanor and felony convictions.  There may be no collateral attack of the conviction that provides the basis of the exclusion.  42 C.F.R. § 1001.2007(d).

Section 1128(c)(3)(B) of the Act (42 U.S.C. § 1320a-7(c)(3)(B)) provides that an exclusion imposed under section 1128(a) of the Act (42 U.S.C. § 1320a-7(a)) shall be for a minimum period of five years.  The exclusion is effective twenty days from the date of the notice of exclusion.  42 C.F.R. § 1001.2002(b).  The period of exclusion may be extended based on the presence of specified aggravating factors.  42 C.F.R. § 1001.102(b).  Mitigating factors are considered as a basis for reducing the period of exclusion only if aggravating factors justify an exclusion of longer than five years.  42 C.F.R. § 1001.102(c).

The standard of proof is a preponderance of the evidence.  42 C.F.R. § 1001.2007(c).  Petitioner bears the burden of proof and the burden of persuasion on any affirmative defenses or mitigating factors; the IG bears the burden on all other issues.  42 C.F.R. § 1005.15(b).

V. Findings of Fact, Conclusions of Law, and Analysis

My conclusions of law are set forth in bold and followed by pertinent findings of fact and analysis.

A. Petitioner’s request for hearing was timely, and I have jurisdiction.

Petitioner timely requested a hearing, and I therefore have jurisdiction to hear and decide this case.  See 42 C.F.R. §§ 1001.2007(a)(1)-(2), 1005.2(a); see also 42 U.S.C. § 1320a‑7(f)(1).

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B. There is a basis for Petitioner’s exclusion pursuant to section 1128(a)(4) of the Act.

Section 1128(a)(4) mandates that the Secretary exclude from program participation any individual or entity convicted of a felony criminal offense “relating to the unlawful manufacture, distribution, prescription, or dispensing of a controlled substance.”  See 42 C.F.R. § 1001.101(d).  As discussed below, the IG has established, by preponderance of the evidence, the elements necessary to exclude Petitioner.

1. Petitioner was convicted under federal or state law of a criminal offense that occurred after August 21, 1996.

Petitioner conceded that he was convicted of a felony occurring after August 21, 1996.  P. Br. at 1-2.

2. Petitioner was convicted of an offense within the meaning of section 1128(a)(4).

Petitioner appeared to concede that he was convicted of an offense for which exclusion is required under section 1128(a)(4) of the Act (meaning, a conviction related to the unlawful manufacture, distribution, prescription, or dispensing of a controlled substance), P. Br. at2, but later argued that “[t]he facts that form the basis of the conviction do not clearly relate to the unlawful distribution of a controlled substance.”  P. Br. at 6.  I will accordingly address this element.

On December 12, 2012, Petitioner was charged with one count of conspiring to distribute, dispense, and possess with intent to distribute and dispense a controlled substance in violation of 21 U.S.C. § 846.  IG Ex. 2.  He resolved the charge against him by plea agreement, which adopts the charged conduct as true and specifies Petitioner participated in a “conspiracy to distribute and dispense oxycodone from on or about November 6, 2011 through on or about February 16, 2012.”  IG Ex. 5 at 1.  A U.S. District Court entered judgment against Petitioner for conspiracy to distribute and possess with intent to distribute Oxycodone on March 18, 2015.  IG Ex. 6.

Petitioner contends his conviction would not require exclusion because he did not actually manufacture, distribute, prescribe, or dispense a controlled substance.  Id.  In the first place, Petitioner misapprehends the legal effect of his criminal conspiracy conviction.  In a criminal conspiracy, each co-conspirator is held equally liable regardless of which particular acts they took in furtherance of the conspiracy.  See Smith v. United States, 133 S. Ct. 714, 719 (2013) (“. . . a defendant who has joined a conspiracy . . . becomes responsible for the acts of his co-conspirators in pursuit of their common plot . . .”) (citations omitted).  Thus, even if Petitioner did not personally manufacture,

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distribute, prescribe, or dispense a controlled substance, he is equally liable for his co-conspirator who did.  In this case, Petitioner admitted that his co-conspirator used a printer maintained by Petitioner in his home to print false prescriptions which were then submitted to a pharmacy.  P. Br. at 6.  Petitioner is therefore as equally responsible for the unlawful prescription and dispensing of a controlled substance as his co-conspirator.

Furthermore, to require exclusion under section 1128(a)(4), Petitioner’s conviction need only be related to the manufacture, distribution, prescription, or dispensing of a controlled substance.  The term “related to” simply means that there must be a nexus or common sense connection.  See Friedman v. Sebelius, 686 F.3d 813, 820 (D.C. Cir. 2012) (describing the phrase “related to” in another part of section 1320a-7 as “deliberately expansive words,” “the ordinary meaning of [which] is a broad one,” and one that is not subject to “crabbed and formalistic interpretation”) (internal quotation marks omitted); see also Quayum v. U.S. Dep’t of Health and Human Servs., 34 F. Supp. 2d 141, 143 (E.D.N.Y. 1998).

Here, it is evident that Petitioner’s offense of conviction meets that broad, common sense standard, as he by his own admission maintained the printer used by his co-conspirator to print false prescriptions which were then submitted to a pharmacy.  P. Br. at 6.  Indeed, it is difficult to see how Petitioner’s conviction could not relate to the unlawful manufacture, distribution, prescription, or dispensing of a controlled substance.  Without his participation, Petitioner’s co-conspirator could not have printed or then submitted the false prescriptions.

I therefore conclude Petitioner’s conviction was related to the manufacture, distribution, prescription, or dispensing of a controlled substance, and that a basis exists to exclude Petitioner under section 1128(a)(4) of the Act.

3. Petitioner must be excluded for a minimum of five years.

Because I have concluded that a basis exists to exclude Petitioner under 42 U.S.C. § 1320a-7(a)(4), Petitioner must be excluded for a minimum period of five years.  42 U.S.C. § 1320a-7(c)(3)(B); 42 C.F.R. §§ 1001.102(a), 1001.2007(a)(2).  The IG has no discretion to impose a lesser period of exclusion, and I may not reduce the period of exclusion below five years.

4. I cannot change the effective date of Petitioner’s exclusion.

Petitioner requests his exclusion be lifted, as the eight-year period since he stopped practicing as a physician’s assistant in 2010 encompasses a five-year period where he did not work.  P. Br. at 7.  In essence, he requests that the effective date of his exclusion be moved to an earlier date than that selected by the IG.

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There are no facts in evidence to explain why the IG did not impose exclusion, as required by the Act, until nearly three years after Petitioner’s conviction.  But whether proper or improper, the reason for the delay is irrelevant.  The Act and its effectuating regulations do not permit me to modify the effective date of exclusion for any reason.  See Thomas Edward Musial, DAB No. 1991 (2005), citing Douglas Schram, R.PH., DAB No. 1372 at 11 (1992) (“[n]either the ALJ nor this Board may change the beginning date of Petitioner’s Exclusion.”); David D. DeFries, D.C., DAB No. 1317 at 6 (1992) (“The ALJ can not . . . decide when [the exclusion] is to begin.”); Richard D. Phillips, DAB No. 1279 (1991) (“An ALJ does not have ‘discretion . . . to adjust the effective date of an exclusion, which is set by regulation.’”); Samuel W. Chang, M.D., DAB No. 1198 at 10 (1990) (“The ALJ has no power to change . . . [an exclusion’s] beginning date.”); see also 42 C.F.R. § 1001.2002(b) (“The exclusion will be effective 20 days from the date of the notice.”).  In sum, I am not empowered to provide Petitioner the relief he seeks.

VI.  Conclusion

For the foregoing reasons, Petitioner is excluded from participation in Medicare, Medicaid, and all federal health care programs for five years pursuant to section 1128(a)(4) of the Act (42 U.S.C. § 1320a-7(a)(4)), effective March 20, 2018.

• 1. Document No. 8b in the official case file maintained in the DAB E-File system; for clarity and simplicity, whenever possible I will cite to the exhibits attached to the parties’ respective briefs by the exhibit numbers therein, not the document numbers assigned by the E-file system.