John Peter Christensen, MD, DAB CR5476 (2019)

DECISION

Petitioner is excluded from participation in Medicare, Medicaid, and all federal health care programs pursuant to section 1128(a)(2) and (4) of the Social Security Act (Act) (42 U.S.C. § 1320a-7(a)(2), (4)), effective February 20, 2019. Petitioner’s exclusion for the minimum period of 10 years is required by section 1128(c)(3)(B) of the Act (42 U.S.C. § 1320a-7(c)(3)(B)). An additional period of exclusion of 40 years, a total minimum exclusion of 50 years,1 is not unreasonable based upon the presence of two aggravating factors and no mitigating factor. 

I. Background

The Inspector General (IG) notified Petitioner by letter dated January 31, 2019, that he was excluded from participation in Medicare, Medicaid, and all federal health care

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programs for 50 years. The IG cited section 1128(a), subsections (2) and (4) of the Act, as authority for Petitioner’s exclusion based on his conviction in the Fifteenth Judicial Circuit Court, Palm Beach County, Florida (state court) of a criminal offense. The IG excluded Petitioner pursuant to section 1128(a)(2) based on Petitioner’s conviction of a criminal offense related to neglect or abuse of patients, in connection with the delivery of a health care item or service. The IG excluded Petitioner pursuant to section 1128(a)(4) based on Petitioner’s 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. The IG advised Petitioner that, because he had a prior conviction, the mandatory 5-year minimum exclusion was increased to 10 years. The IG further advised Petitioner that the minimum 10-year exclusion was extended to 50 years because Petitioner’s acts had a significant adverse physical, mental, or financial impact on one or more program beneficiaries or other individuals; and he was sentenced to incarceration. IG Exhibit (Ex.) 1.

On March 19, 2019, Petitioner timely filed a request for hearing (RFH) before an administrative law judge (ALJ). This case was docketed and assigned to me on April 5, 2019. A prehearing conference was convened on May 7, 2019. The substance of the conference is memorialized in my Prehearing Conference Order and Schedule for Filing Briefs and Documentary Evidence dated May 7, 2019 (Prehearing Order).

The IG filed a motion for summary judgment and supporting brief on August 16, 2019, with IG Exs. 1 through 10. Petitioner filed a response in opposition to the IG motion for summary judgment (P. Br.) on October 3, 2019, with Petitioner’s exhibits (P. Exs.) marked FG-F, FG-R, FG-A, PS-F, PS-R, PS-A, and DEA. The IG filed a reply brief on October 11, 2019. 

Petitioner did not object to my consideration of IG Exs. 1 through 10, and they are admitted as evidence. Petitioner filed an exhibit list that listed an exhibit marked “Misc” that is described as including “Misc. Letters Reports.” Petitioner Exhibit Legend, filed October 3, 2019 Departmental Appeals Board Electronic Filing System (DAB E-File) Item # 7a. However, no document marked “Misc” was uploaded to DAB E-File. Petitioner’s exhibits marked FG-F, FG-R, FG-A, PS-F, PS-R, PS-A, and DEA must be excluded as evidence because they are not relevant to the limited issues I am permitted to consider under 42 C.F.R. § 1001.2007(a)(1), i.e., whether there is a basis for exclusion and whether the period of exclusion is reasonable. 42 C.F.R. § 1005.17(c) (ALJ must exclude irrelevant evidence).

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II. Discussion

A. Applicable Law

Section 1128(f) of the Act (42 U.S.C. § 1320a-7(f)) establishes Petitioner’s rights to a hearing by an ALJ and judicial review of the final action of the Secretary of Health and Human Services (the Secretary).

Pursuant to section 1128(a)(2) of the Act, the Secretary must exclude from participation in any federal health care program an individual convicted under federal or state law of a criminal offense related to the neglect or abuse of a patient, in connection with the delivery of a health care item or service. The Secretary has promulgated regulations implementing these provisions of the Act. 42 C.F.R. § 1001.101(b).

Pursuant to section 1128(a)(4) of the Act, the Secretary must exclude from participation in the Medicare and Medicaid programs any individual convicted of a felony criminal offense under federal or state law, that occurred after August 21, 1996, related to the unlawful manufacture, distribution, prescription, or dispensing of a controlled substance. 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 Secretary has promulgated regulations implementing these provisions of the Act. 42 C.F.R. § 1001.101(a).

Section 1128(c)(3)(B) of the Act provides that an exclusion imposed under section 1128(a) of the Act will be for a period of no fewer than five years. 42 C.F.R. § 1001.102(a). Section 1128(c)(3)(G)(i) of the Act provides that for a mandatory exclusion under Section 1128(a) of the Act, the mandatory exclusion will be for no fewer than 10 years if the individual has been convicted on one prior occasion of one or more offenses for which exclusion is required under Section 1128(a) of the Act. The Secretary has published regulations that establish aggravating factors the IG may consider to extend the period of exclusion beyond the mandatory minimum period, as well as mitigating factors that may be considered only if the IG proposes to impose an exclusion longer than five years. 42 C.F.R. § 1001.102(b), (c). 

The standard of proof is a preponderance of the evidence and there may be no collateral attack of the conviction that provides the basis of the exclusion. 42 C.F.R. § 1001.2007(c), (d). Petitioner bears the burden of proof and the burden of persuasion on any affirmative defenses or mitigating factors, and the IG bears the burden on all other issues. 42 C.F.R. § 1005.15(c); Prehearing Order ¶ 4.

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B. Issues

The issues in this case are:

Whether summary judgment is appropriate;

Whether there is a basis for exclusion; and

Whether the length of the proposed exclusion is unreasonable.

42 C.F.R. § 1001.2007(a)(1).

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

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

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

2. Summary judgment is appropriate. 

There is no dispute that Petitioner’s request for hearing was timely and I have jurisdiction pursuant to section 1128(f) of the Act and 42 C.F.R. pt. 1005.

Pursuant to section 1128(f) of the Act, a person subject to exclusion has a right to reasonable notice and an opportunity for a hearing. The Secretary has provided by regulation that a sanctioned party has the right to hearing before an ALJ and both the sanctioned party and the IG have a right to participate in the hearing. 42 C.F.R. §§ 1001.2007(a)(1), 1005.2-.3. Either or both parties may choose to waive appearance at an oral hearing and to submit only documentary evidence and written argument for my consideration. 42 C.F.R. § 1005.6(b)(5). 

An ALJ may also resolve a case, in whole or in part, by summary judgment. 42 C.F.R. § 1005.4(b)(12). Summary judgment is appropriate and no hearing is required where either: there are no genuine disputes of material fact and the only questions that must be decided involve application of law to the undisputed facts; or the moving party prevails as a matter of law even if all disputed facts are resolved in favor of the party against whom the motion is made. A party opposing summary judgment must allege facts which, if true, would refute the facts relied upon by the moving party. See, e.g., Fed. R. Civ. P. 56(c); Garden City Med. Clinic, DAB No. 1763 (2001); Everett Rehab. & Med. Ctr., DAB No. 1628 at 3 (1997) (holding in-person hearing is required where the non-movant shows there are material facts in dispute that require testimony); Thelma Walley, DAB No. 1367 (1992).

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Petitioner does not dispute that he was convicted pursuant to his guilty pleas of two counts of third-degree manslaughter and one count of drug trafficking. P. Br. at 4. He does not dispute that his conviction is a basis for exclusion under section 1128(a), subsections (2) and (4) of the Act. P. Br., RFH. The issues raised by Petitioner must be resolved against him as a matter of law and the case can be resolved by applying the law to the undisputed facts. Accordingly, summary judgment is appropriate.

3. There is a basis for Petitioner’s exclusion pursuant to section 1128(a)(2) of the Act.

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

a. Undisputed Facts

On July 11, 2013, a grand jury in the Fifteenth Judicial Circuit, Palm Beach, Florida, indicted Petitioner on 2 counts of first degree murder, 1 count of conspiracy to traffic in oxycodone, 90 counts of trafficking oxycodone, 23 counts of the sale or delivery of alprazolam, and 10 counts of the sale of a Schedule III or IV substance. IG Ex. 2.

A superseding indictment dated February 13, 2014, charged Petitioner with 1 count of first degree murder, 1 count of manslaughter, 1 count of conspiracy to traffic in oxycodone, 6 counts of delivery of alprazolam, 1 count of delivery of Fioricet®, 2 counts of delivery of Ambien®, 1 count of delivery of a Schedule IV substance, and 66 counts of trafficking in oxycodone. IG Ex. 3.

A superseding information was filed on April 3, 2014. The charges were 2 counts of manslaughter, 1 count of conspiracy to traffic in oxycodone, 6 counts of delivery of alprazolam, 2 counts of delivery of Ambien®, 1 count of delivery of Fioricet®, 1 count of delivery of a Schedule IV substance, and 66 counts of trafficking in oxycodone. IG Ex. 4.

On January 28, 2017, Petitioner pleaded guilty to two counts of manslaughter in the second degree and one count of conspiracy to traffic in oxycodone, a first-degree offense. Pursuant to a plea agreement, the prosecution agreed not to proceed on the remaining counts of the April 3, 2014 superseding information. Petitioner was convicted pursuant to his pleas and sentenced to four years in prison to run concurrently with the one-year sentence he received in the federal court. IG Exs. 6 at 1, 7, 8 (amended judgment dated May 9, 2017). Petitioner agreed as part of his plea agreement that he no longer had a license to practice medicine and that he was permanently barred from seeking reinstatement as a physician. IG Ex. 6 at 2.

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The IG previously excluded Petitioner. Effective November 20, 2013, Petitioner was excluded from participation in Medicare, Medicaid, and all federal health care programs pursuant to section 1128(b)(4) of the Act because his Florida medical license was revoked, suspended, lost, or surrendered. The exclusion runs until Petitioner regains his Florida license. IG Ex. 10. The IG notified Petitioner on April 28, 2017, that he was excluded from Medicare, Medicaid, and all federal health care programs for 15 years pursuant to section 1128(a)(1) of the Act based on his conviction in the US District Court, Middle District of Florida of a criminal offense related to the delivery of an item or service under a state health care program. IG Ex. 9. 

b. Analysis

The IG cites section 1128(a)(2) of the Act as authority for Petitioner’s mandatory exclusion. The statute provides:

(a) MANDATORY EXCLUSION. — The Secretary shall exclude the following individuals and entities from participation in any federal health care program (as defined in section 1128B(f)):

* * * *

(2) Conviction relating to patient abuse. — Any individual or entity that has been convicted, under federal or State law, of a criminal offense relating to neglect or abuse of patients in connection with the delivery of a health care item or service.

Act § 1128(a)(2). The plain language of section 1128(a)(2) of the Act requires that the Secretary exclude from participation in Medicare, Medicaid, and all federal health care programs, any individual or entity: 

(1) convicted of a criminal offense;

(2) where the offense related to neglect or abuse of patients; and

(3) where the offense is related to the delivery of a health care item or service.

There is no requirement for a felony conviction.

The IG also cites section 1128(a)(4) of the Act as authority for Petitioner’s exclusion. Section 1128(a)(4) requires that the Secretary exclude from participation in Medicare, Medicaid, and all federal health care programs any individual or entity:

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(1) convicted of a felony criminal offense under federal or state law;

(2) where the offense occurred after August 21, 1996; and

(3) the criminal offense is related to the unlawful manufacture, distribution, prescription, or dispensing of a controlled substance.

Appellate panels of the Departmental Appeals Board (the Board) have long held that the statutory terms describing an offense do not control whether that offense is “related to” the delivery of a health care item or service under Medicare or a state health care program for purposes of an exclusion pursuant to section 1128(a) of the Act. Rather, an ALJ and the Board must determine whether there is a common sense connection or nexus between the offense and the delivery of a health care item or service. An ALJ and the Board consider evidence as to the nature of the offense and the facts that were the basis for the conviction. Kimbrell Colburn, DAB No. 2683 at 5 (2016); Scott D. Augustine, DAB No. 2043 at 5-6 (2006); Berton Siegel, D.O., DAB No. 1467 at 6-7 (1994); Dewayne Franzen, DAB No. 1165 (1990). An ALJ may also use extrinsic evidence to “[fill] in the circumstances surrounding the events which formed the basis for the offense of which Petitioner was convicted.” Narendra M. Patel, M.D., DAB No. 1736 at 7 (2000). The terms “related to” and “relating to” in 42 U.S.C. § 1320a-7 simply mean that there must be a nexus or common sense connection. Friedman v. Sebelius, 686 F.3d 813, 820 (D.C. Cir. 2012) (describing the phrase “relating to” 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 quotes omitted); Quayum v. U.S. Dep’t of Health & Human Servs., 34 F.Supp.2d 141, 143 (E.D.N.Y. 1998).

Petitioner does not deny that he pleaded guilty to and was convicted of three felonies under Florida law: two counts of manslaughter and one count of conspiracy to traffic in oxycodone. Petitioner does not dispute that the offenses to which he pleaded guilty and of which he was convicted are those alleged in Counts 1 through 3 of the superseding information filed April 3, 2014 (IG Ex. 4). Count 1 of the information alleged that Petitioner unlawfully killed a person by his act or culpable negligence by delivering to that person a prescription for the controlled substances methadone and alprazolam. Count 2 alleged that Petitioner killed a person by his act or culpable negligence by delivering to that person a prescription for the controlled substances oxycodone and alprazolam. Count 3 alleged that between July 22, 2009 and January 21, 2010, Petitioner conspired to unlawfully and knowingly deliver 28 grams or more of morphine, opium, oxycodone, hydrocodone, hydromorphone or any salt, isomer, or salt of an isomer thereof, including heroin, or a mixture of such substances. Petitioner does not deny that by pleading guilty, he admitted the elements of and facts alleged in each of the three counts of the superseding information (IG Ex. 4). Petitioner does not dispute that the individuals killed were his patients as evidenced by the fact he gave them prescriptions. Petitioner does not dispute that killing his patients by his act or through culpable

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negligence amounts to abuse or neglect of those patients. Petitioner does not dispute that providing prescriptions for patients is the delivery of a health care item or service. Petitioner does not dispute that conspiracy to traffic in oxycodone is a drug offense or that the drug offense occurred after August 21, 1996. P Br., RFH. 

Accordingly, I conclude that the elements that trigger mandatory exclusion pursuant to sections 1128(a)(2) and (4) are satisfied and there are bases for Petitioner’s exclusion. 

In his brief, Petitioner attacks the actions of law enforcement, attempting to cast doubt upon his conviction. He argues that he was unaware of drug abuse by his patients who died. Petitioner argues that the state court judge did not follow the terms of his plea agreement by sentencing him to four additional years in prison. He argues that he pleaded guilty under duress, fearing that he faced many years in prison if he did not plead guilty. He argues that he served his prison sentence without adverse incident and that his ability to make restitution is impaired by his inability to work in health care. P. Br. Pursuant to 42 C.F.R. § 1001.2007(d), when as here, exclusion is based on a criminal conviction, the basis for the conviction is not subject to my review or collateral attack by Petitioner on either substantive or procedural grounds. Therefore, Petitioner’s arguments challenging his conviction are not subject to my review and may not be considered as a matter of law.  

5. Pursuant to section 1128(c)(3)(G)(i) of the Act, exclusion for 10 years is mandatory.

I have concluded that a basis exists to exclude Petitioner pursuant to sections 1128(a)(2) and (4) of the Act. Generally, the IG must exclude Petitioner for a minimum period of five years pursuant to section 1128(c)(3)(B) of the Act. However, there is no dispute that Petitioner was previously convicted in the US District Court, Middle District of Florida. IG Exs. 1 at 2, 9 at 1; P. Br. at 4. Because Petitioner has the prior conviction, Congress has directed that the minimum period of exclusion must be no fewer than 10 years. The IG has no discretion to impose a lesser period and I may not reduce the period of exclusion below 10 years. 

The remaining issue is whether it is unreasonable to extend Petitioner’s exclusion by an additional 40 years. My determination of whether the exclusionary period in this case is unreasonable turns on whether: (1) the IG has proven that there are aggravating factors; (2) Petitioner has proven that the IG considered an aggravating factor that does not exist or that there are mitigating factors that the IG failed to consider; and (3) the period of exclusion is within a reasonable range.

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6. Two aggravating factors are present that justify extending the minimum period of exclusion to 50 years.

The IG notified Petitioner that two aggravating factors are present in this case that justify an exclusion of more than 10 years: 

(1) Petitioner’s acts that resulted in his conviction, or similar acts, had significant adverse physical, mental, or financial impact on one or more program beneficiaries or other individuals; and 

(2) The sentence imposed by the court included incarceration.

IG Ex. 1 at 2. 

Petitioner does not deny the existence of the two aggravating factors cited by the IG. RFH; P. Br. I conclude that the aggravating factors the IG cites are established by the evidence before me and are undisputed. The aggravating factors are a basis for the IG to extend the period of exclusion beyond the minimum exclusion of 10 years. 42 C.F.R. § 1001.102(b)(5), (b)(9).

7. Exclusion for 50 years is not unreasonable in this case.

The regulation states that the ALJ must determine whether the length of exclusion imposed is “unreasonable.” 42 C.F.R. § 1001.2007(a)(1). The Board, however, has made clear that the role of the ALJ in exclusion cases is to conduct a de novo review of the facts related to the basis for the exclusion, and the existence of aggravating and mitigating factors identified at 42 C.F.R. § 1001.102, and to determine whether the period of exclusion imposed by the IG falls within a reasonable range. Juan de Leon, Jr., DAB No. 2533 at 4-5 (2013); Craig Richard Wilder, DAB No. 2416 at 8 (2011); Joann Fletcher Cash, DAB No. 1725 at 17 n.6 (2000). The Board explained that, in determining whether a period of exclusion is “unreasonable,” the ALJ is to consider whether such period falls “within a reasonable range.” Cash, DAB No. 1725 at 17 n.6. The Board cautions that whether the ALJ thinks the period of exclusion too long or too short is not the issue. The ALJ may not substitute his or her judgment for that of the IG and may only change the period of exclusion in limited circumstances.

In John (Juan) Urquijo, DAB No. 1735 (2000), the Board made clear that, if the IG considers an aggravating factor to extend the period of exclusion and that factor is not later shown to exist on appeal, or if the IG fails to consider a mitigating factor that is shown to exist, then the ALJ may make a decision as to the appropriate extension of the period of exclusion beyond the minimum. In Gary Alan Katz, R.Ph., DAB No. 1842 (2002), the Board suggested that when it is found that an aggravating factor considered by the IG is not proved before the ALJ, then some downward adjustment of

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the period of exclusion should be expected absent some circumstances that indicate no such adjustment is appropriate. Thus, the Board has by these various prior decisions significantly limited my authority under the applicable regulation to judge the reasonableness of the period of exclusion.

The only mitigating factors I am permitted to consider are those established by 42 C.F.R. § 1001.102(c). Petitioner asks me to consider his age, the time he served in prison and his good behavior, his acceptance of his guilt, his desire to make restitution, his request for forgiveness, and his past efforts to help address the drug problem. P. Br. at 3, 6. However, I am not permitted to consider any of these facts, even though I may accept them as true for purposes of summary judgment, because none are mitigating factors under 42 C.F.R. § 1001.102(c).

Based on my de novo review, I conclude that bases for Petitioner’s exclusion exist and that the undisputed evidence establishes the two aggravating factors that the IG relied on to impose the 50-year exclusion. 

I conclude that I have no authority to change the period of Petitioner’s exclusion. I further conclude that a period of exclusion of 50 years is in a reasonable range and not unreasonable considering the existence of two aggravating factors and no mitigating factor. Accordingly, I conclude that no change in the period of exclusion is necessary or permitted. 

Petitioner argues that the 50-year exclusion imposed by the IG is additional punishment that should be considered “unreasonable and exclusionary.” P. Br. at 5. Exclusions imposed by the I.G. are civil sanctions, remedial in nature and not punitive and criminal. Because exclusions are remedial sanctions, they do not violate the double jeopardy clause or the prohibition against cruel and unusual punishment. Manocchio v. Kusserow, 961 F.2d 1539 (11th Cir. 1992); Greene v. Sullivan, 731 F.Supp. 838 (E.D. Tenn. 1990); Joann Fletcher Cash, DAB No. 1725 (2000); Douglas Schram, R.Ph., DAB No. 1372 (1992); and Janet Wallace, L.P.N., DAB No. 1326 (1992).2 Arguments that the exclusion

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provisions are anything but remedial have been found to be without merit. Manocchio, 961 F.2d 1539; Greene, 731 F.Supp. 838. 

Petitioner’s argument may also be construed to be that the 50-year exclusion affects his ability to pursue his chosen profession in health care and infringes upon his property and liberty interests. The federal courts have rejected claims that the Secretary’s exclusion procedures amount to a deprivation of due process, finding no constitutionally-protected property or liberty interests. Rodabaugh v. Sullivan, 943 F.2d 855 (8th Cir. 1991); Lavapies v. Bowen, 883 F.2d 465 (6th Cir. 1989); Hillman Rehab. Ctr. v. U.S. Dep’t of Health & Human Servs., No. 98-3789 (GEB), slip op. at 16, 1999 WL 34813783, at 16 (D.N.J. May 13, 1999); Travers v. Sullivan, 801 F.Supp. 394, 404-05 (E.D. Wash. 1992), aff’d, Travers v. Shalala, 20 F.3d 993 (9th Cir. 1994). Of course, Petitioner’s exclusion does not prohibit him from engaging in all employment. Petitioner’s exclusion precludes him from participation in Medicare, Medicaid, and all federal health care programs and payment for his services through those programs.

III. Conclusion

For the foregoing reasons, Petitioner is excluded from participation in Medicare, Medicaid, and all federal health care programs for 50 years pursuant to sections 1128(a)(2) and (4) of the Act, effective February 20, 2019.

• 1. Pursuant to 42 C.F.R. § 1001.3001, Petitioner may apply for reinstatement only after the period of exclusion expires.  Reinstatement is not automatic upon completion of the minimum period of exclusion.  Citations are to the 2018 revision of the Code of Federal Regulations (C.F.R.), unless otherwise stated.
• 2. The exclusion remedy serves twin congressional purposes:  the protection of federal funds and program beneficiaries from untrustworthy individuals and the deterrence of health care fraud.  S. Rep. No. 109, 100th Cong., 1st Sess. 1-2 (1987), reprinted in 1987 U.S.C.C.A.N. 682, 686 (“clear and strong deterrent”); Cash, DAB No. 1725 at 13-15 (2000) (discussing trustworthiness and deterrence).  When Congress added section 1128(a)(3) in 1996, it again focused upon the desired deterrent effect:  “greater deterrence was needed to protect the Medicare program from providers who have been convicted of health care fraud felonies . . . .”  H.R. Rep. 496(I), 104th Cong., 2nd Sess. (1996), reprinted in 1996 U.S.C.C.A.N. 1865, 1886.