Susan K. Brown, DAB CR5622 (2020)

DECISION

I affirm the determination of the Inspector General (IG) of the Department of Health and Human Services that Susan K. Brown (Petitioner) must be excluded from participation in all federal health care programs for at least five years under 42 U.S.C. § 1320a‑7(a)(4).

I.  Background and Procedural History

In an October 31, 2019 notice, the IG informed Petitioner that she was being excluded from participation in all federal health care programs under 42 U.S.C. § 1320a-7(a)(4), for a period of five years.  The notice stated that the exclusion would be effective 20 days from the date of the notice.  IG Ex. 1.

Petitioner requested a hearing to dispute the exclusion on February 23, 2020.  In response, the Civil Remedies Division issued my Standing Prehearing Order and notified the parties that I would hold a prehearing conference.  On March 24, 2020, I held the prehearing conference by telephone, the substance of which was summarized in my March 25, 2020 Order Following Prehearing Conference and Setting Schedule for Prehearing Submissions.  During the conference call, I discussed the timeliness of

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Petitioner's hearing request.  Petitioner explained that she did not receive the exclusion notice and only learned of the exclusion later.  Counsel for the IG stated that she had not moved for dismissal and was prepared for the case to proceed on the merits.  Therefore, I found the hearing request to be timely.  At the conference, the parties agreed to an expedited submission schedule.

In accordance with the submission schedule:  the IG filed a prehearing exchange consisting of a brief (IG Br.) and three exhibits (IG Exs. 1-3); Petitioner filed a brief (P. Br.) and four exhibits (P. Exs. 1-4); and the IG filed a reply brief (IG Reply).

II.  Decision on the Record

Neither party objected to any of the proposed exhibits; therefore, I admit them all into the record.  Standing Prehearing Order ¶ 12; 42 C.F.R. § 1005.8(c).

In their briefs, both parties indicated that neither had any witness testimony to offer and both thought that an in-person hearing was unnecessary to decide this case.  IG Br. at 4; P. Br. at 2.  Therefore, I issue this decision based on the written record.  Standing Prehearing Order ¶ 16.

III.  Issue

Whether the IG had a basis to exclude Petitioner for five years from participation in Medicare, Medicaid, and all other healthcare programs.  42 C.F.R. § 1001.2007(a)(1)-(2).

IV.  Jurisdiction

I have jurisdiction to adjudicate this case.  42 U.S.C. § 1320a-7(f)(1); 42 C.F.R. § 1005.2.

V.  Findings of Fact

1. Petitioner is licensed as a registered nurse in Delaware.  See P. Br. at 4-5.
2. In June 2019, Petitioner was arrested and charged with the felony of knowingly causing a diversion of medication from a patient or resident, as well as two related misdemeanor offenses.  P. Ex. 1; P. Br. at 3.
3. On July 11, 2019, a Delaware Deputy Attorney General filed an Information in the Delaware Court of Common Pleas for New Castle County (Court of Common Pleas) charging Petitioner with Medication Diversion in violation of section 1136(b) of Title 16 of the Delaware Code.  IG Ex. 2.

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4. The Information alleged that Petitioner "on or about the 9th day of November, 2018 . . . did knowingly obstruct the delivery of Oxycodone to a patient by removing the prescription drug from the medication cart and placing it in her mouth while working as a health-care professional."  IG Ex. 2.
5. Petitioner signed a Guilty Plea Form on June 26, 2019, in which Petitioner pleaded guilty to the felony of "Med diversion" and indicated that she understood that she "will not have a trial."  The Guilty Plea Form was filed with the Court of Common Pleas on July 11, 2019.  IG Ex. 3.
6. The "Other Conditions" section of the Guilty Plea Form indicated "drug diversion."  IG Ex. 3.
7. Petitioner completed the Delaware Drug Diversion Program in November 2019, which consisted of 14 weeks of urine drug screenings and twice weekly group therapy sessions, as well as one-on-one meetings with a counselor once every two weeks.  P. Ex. 3; P. Br. at 3.
8. On November 13, 2019, a Delaware Deputy Attorney General filed a Notice of Entry of Nolle Prosequi in Petitioner's criminal case with the Court of Common Pleas based on "Completion of Drug Diversion Program."  P. Exs. 1-2.

VI.  Conclusions of Law and Analysis

The Secretary of Health and Human Services (Secretary) must exclude an individual from participation in Medicare, Medicaid, and all other federally-funded health care programs if that individual:

[H]as been convicted for an offense which occurred after August 21, 1996, under Federal or State law, of a criminal offense consisting of a felony relating to the unlawful manufacture, distribution, prescription, or dispensing of a controlled substance.

42 U.S.C. § 1320a-7(a)(4).  Further, the regulations implementing this statute state that this exclusion provision applies to, among others, health care practitioners.  42 C.F.R. § 1001.101(d)(1).

1. Petitioner was convicted of a criminal offense for purposes of 42 U.S.C. § 1320a-7(a)(4), because she entered a deferred adjudication program or other arrangement where the judgment of conviction was withheld.

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Under 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, regardless of 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 nolo contendere is accepted by a court;1 or (4) the individual has entered into a first offender program, deferred adjudication program, or other arrangement where a judgment of conviction is withheld.

In the present case, Petitioner filed a completed Guilty Plea Form with the Court of Common Pleas that indicated Petitioner was to enter a drug diversion program.  IG Ex. 3.  Further documents submitted by Petitioner confirm that she entered and completed that program.  P. Ex. 3.  Finally, completion of the program was the reason that she received a Nolle Prosequi in her criminal case.  P. Exs. 1-2.

This matter fits squarely into the definition of "convicted" under 42 U.S.C. § 1320a‑7(i)(4).  Travers v. Shalala, 20 F.3d 993, 997 (9th Cir. 1994) ("In a deferred adjudication, on the other hand, if the defendant does not live up to the terms of his agreement, he is not free to set aside his plea or proceed to trial—the court may simply enter a judgment of conviction.  Under those circumstances, the entry of a judgment is a mere formality because the defendant has irrevocably committed himself to a plea of guilty or no contest which cannot be unilaterally withdrawn."); Rudman v. Leavitt, 578 F. Supp. 2d 812, 815 (D. Md. 2008).  As indicated on the Guilty Plea Form, Petitioner waived her right to a trial and would have been subject to conviction and sentencing had she not completed the drug diversion program.  IG Ex. 3.

It is understandable that Petitioner is surprised that federal law treats as a conviction a matter that, under state law, is not a conviction.  P. Br. at 5.  However, Congress is not bound to follow state laws and has chosen to define convictions more broadly for purposes of excluding parties from participation in federal programs.

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2. Petitioner was convicted of a felony.

There is no dispute that the offense that Petitioner pleaded guilty to was a felony.  P. Br. at 3, 5; IG Exs. 2-3; Del. Code tit. 16, § 1136(b).

3. Petitioner was convicted of a felony criminal offense relating to the unlawful manufacture, distribution, prescription, or dispensing of a controlled substance.

In order for a felony conviction to serve as a basis to exclude under 42 U.S.C. § 1320a‑7(a)(4), that conviction must have been for conduct relating to the unlawful manufacture, distribution, prescription, or dispensing of a controlled substance.  The terms "related to" and "relating to" in 42 U.S.C. § 1320a-7(a) simply mean that there must be a nexus or common sense connection.  See James Randall Benham, DAB No. 2042 at 5 (2006) (internal citations omitted); see also 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).  Such a nexus exists between Petitioner's criminal offense and the distribution or dispensing of a controlled substance.

The statute that Petitioner violated made it a crime to "knowingly cause[] medication diversion of a patient or resident . . . ."  Del. Code tit. 16, § 1136(b).  The Information provided the salient facts of the incident.  Petitioner was to provide Oxycodone to a patient but instead took the Oxycodone herself.  IG Ex. 2.  Therefore, Petitioner had access to the Oxycodone because she was to distribute or dispense it to a patient prescribed to receive it, but Petitioner diverted that drug to herself.

4. The conduct for which Petitioner was convicted occurred after August 21, 1996.

The Information charged that Petitioner committed the diversion of the Oxycodone on November 9, 2018.  IG Ex. 2.  Therefore, Petitioner's criminal conduct occurred after August 21, 1996.

5. Petitioner is or has been a health care practitioner.

The Information charged that Petitioner committed her criminal conduct "while working as a health-care professional."  IG Ex. 2.  Petitioner indicated that she has a nursing license, but that she was placed on three years of probation.  P. Br. at 4.  Therefore, Petitioner is or has been a health care practitioner.  See 42 C.F.R. § 1001.101(d)(1).

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6. Under 42 U.S.C. § 1320a-7(a)(4), Petitioner must be excluded from participation in all federal health care programs for five years under 42 U.S.C. § 1320a‑7(c)(3)(B).

Petitioner indicated that she has sincere remorse and regret for her mistakes and that she had a clean record as a nurse for 27 years.  She stated that she provides the primary income for her family and had been offered a position at a group home where she could utilize both her nursing and psychology background to care for the residents.  Finally, Petitioner explains all of the treatment she received concerning her substance abuse problems.  P. Br. at 3-5.

Despite Petitioner's arguments, neither the IG nor I have any authority to remove the exclusion or reduce the length of the exclusion.  See 42 C.F.R. §§ 1001.1(b), 1001.101(d), 1001.102(a).  The United States Court of Appeals for the Ninth Circuit explained the mandatory nature of a five-year exclusion in the following manner:

However, the Inspector General was not engaging in a fact-finding or discretionary function when he excluded Travers.

Conviction of a program-related offense as defined by § 1320a–7(i) is the triggering event that mandates the Secretary to impose a minimum five-year exclusion.  The language—"[t]he Secretary shall exclude"—is mandatory, not discretionary.  42 U.S.C.§ 1320a–7(a).  To determine whether Travers was convicted of a program-related offense, the Inspector General looked to the substance of the state proceedings and the nature of Travers' crime as charged by the State of Utah.  As noted by the district court, "[i]t is not necessary or proper for the Inspector General to delve into the facts surrounding the conviction."  Travers v. Sullivan, 801 F. Supp. 394, 403 (E.D. Wash. 1992).  Once he found that the Utah state court's disposition of the charge amounted to a conviction of a program-related offense, the Inspector General had no choice but to impose the mandatory 5–year exclusion under § 1320a–7(a)(1).

Travers, 20 F.3d at 998.  As indicated above, the record conclusively shows that Petitioner was convicted, as that term is defined in the statute, and that conviction meets all of the elements under 42 U.S.C. § 1320a-7(a)(4) for a mandatory exclusion.  Therefore, the law required the IG to exclude Petitioner and requires me to affirm that exclusion.

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VII.  Conclusion

I affirm the IG's determination to exclude Petitioner for five years from participating in all federal health care programs under 42 U.S.C. § 1320a‑7(a)(4).

• 1. The IG asserted that Petitioner was convicted for exclusion purposes because Petitioner pleaded guilty and a court accepted that guilty plea.  IG Br. at  3.  However, neither of the IG's two substantive exhibits in this case prove that a court accepted the Petitioner's guilty plea.  There is no court order, judgment of conviction, plea hearing transcript, or judge's signature on the Guilty Plea Form.  The IG has the burden of proving that there is a basis for exclusion.  Standing Prehearing Order ¶ 6; see 42 C.F.R. § 1005.15(c).  The IG did not meet this burden with respect to its principal argument as to why Petitioner should be considered to have been convicted for exclusion purposes.  However, the IG also alluded to 42 U.S.C. § 1320a-7(i)(4) as a basis for concluding that Petitioner had been convicted.  IG Reply at 2.  As explained above, I agree that the record supports that conclusion.