Donatus Okechukwu Mbanefo, MD, DAB CR5759 (2020)

DECISION

The Inspector General (IG) of the United States Department of Health and Human Services excluded Petitioner, Donatus Okechukwu Mbanefo, MD, from participation in Medicare, Medicaid, and all other federal health care programs based on his convictions of several felony offenses relating to the unlawful manufacture, distribution, prescription, or dispensing of controlled substances.  For the reasons discussed below, I conclude that the IG has a basis for excluding Petitioner because he was convicted of felony offenses relating to the unlawful manufacture, distribution, prescription, or dispensing of controlled substances.  I affirm the 12-year length of the exclusion because the IG proved the existence of two aggravating factors and there are no mitigating factors.  I also affirm the March 19, 2020 effective date of Petitioner's exclusion.

I.  Background

In a letter dated February 28, 2020, the IG informed Petitioner that he would be excluded from participation in Medicare, Medicaid, and all federal health care programs as defined in section 1128B(f) of the Social Security Act (Act), effective 20 days from the date of

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the letter.1   IG Ex. 2 at 1.  The IG explained that Petitioner's exclusion was based on a felony conviction "in the United States District Court, Middle District of Georgia, of a  criminal offense related to the unlawful manufacture, distribution, prescription, or dispensing of a controlled substance" pursuant to section 1128(a)(4) of the Act, 42 U.S.C. § 1320a-7(a)(4).  IG Ex. 1 at 1.  Section 1128(a)(4) of the Act mandates the exclusion of any individual who is convicted of a felony occurring after August 21, 1996, relating to the unlawful manufacture, distribution, prescription, or dispensing of a controlled substance.  The IG lengthened the exclusion beyond the mandatory minimum of five years based on the presence of aggravating factors that included that the sentence imposed by the court included incarceration and that Petitioner was subject to other adverse actions based on the same circumstances that formed the basis of his exclusion.2  IG Ex. 2 at 2; see 42 C.F.R. § 1001.102(b)(5), (9).

Petitioner submitted a timely request for hearing that the Civil Remedies Division received on April 1, 2020.  On June 22, 2020, the Civil Remedies Division issued my standing pre-hearing order (Pre-Hearing Order),3 and on July 22, 2020, pursuant to 42 C.F.R. § 1005.6, I presided over a telephonic pre-hearing conference.  Shortly thereafter, I issued an order in which I, inter alia, established a schedule for the filing of briefs and documentary evidence.  Pursuant to these orders, the IG filed a brief (IG Br.) and nine proposed exhibits (IG Exs. 1-9).  Petitioner filed a brief (P. Br.),4 and the IG filed a reply brief.

Neither party has submitted the written testimony of any witnesses, and therefore, a hearing is unnecessary for the purpose of cross-examination of any witnesses.  Pre-Hearing Order § 11; see Lena Lasher, DAB No. 2800 at 4 (2017) (discussing that when neither party submits written direct testimony as directed, "no purpose would be served

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by holding an in-person hearing"), aff'd sub nom. Lasher v. Dep't of Health & Human Servs., 369 F. Supp. 3d 243 (D.D.C. 2019). I will decide this case on the written submissions and documentary evidence.

II.  Issue

Whether the IG has a basis for exclusion and, if so, whether the 12-year length of the exclusion imposed by the IG is unreasonable.  42 C.F.R § 1001.2007(a)(1)-(2).

III.  Jurisdiction

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

IV.  Findings of Fact, Conclusions of Law, and Analysis5

1. Petitioner's conviction subjects him to a mandatory exclusion from all federal health care programs.

A mandatory exclusion from all federal health care programs is set forth at 42 U.S.C. § 1320a-7(a)(4),6 which states:

(a) Mandatory exclusion

The Secretary shall exclude the following individuals and entities from participation in any Federal health care program (as defined in section 1320a-7b(f) of this title):

****

(4) Felony conviction relating to controlled substance

Any individual or entity that has been convicted for an offense which occurred after August 21, 1996, under Federal or State law, of a criminal offense consisting of a felony

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relating to the unlawful manufacture, distribution, prescription, or dispensing of a controlled substance.

The IG argues that she properly excluded Petitioner from all federal health care programs based on his felony convictions relating to the unlawful manufacture, distribution, prescription, or dispensing of a controlled substance.  IG Br. at 6-7.  Petitioner does not dispute that he was convicted of felony offenses occurring after August 21, 1996, relating to the unlawful manufacture, distribution, prescription, or dispensing of a controlled substance.  Therefore, exclusion from all federal health care programs is mandated pursuant to section 1128(a)(4).

Pursuant to a superseding indictment filed on June 15, 2016, a federal grand jury charged that Petitioner engaged in a conspiracy to violate 21 U.S.C. § 841(a)(1) by knowingly and intentionally distributing and dispensing various controlled substances, in violation of 21 U.S.C. § 846.  The indictment detailed actions taken by Petitioner and other co-conspirators in furtherance of the conspiracy, to include the following:

[T]he conspirators also did knowingly open, lease, rent, use, and maintain . . . the Relief Institute of Columbus (RIC) . . . for the purpose of causing the unlawful dispensation of controlled substances . . . RIC was a nominal pain management clinic which in fact was a pill mill engaged in the unlawful dispensation of Schedule II, III, and IV controlled substances.  Prescriptions issued at RIC were done outside the usual course of professional practice and without legitimate medical purpose.

IG Ex. 6 at 8.  The superseding indictment further explained that Petitioner, who is a physician, was "typically paid a daily rate for working at the clinic," and that the doctors employed by the clinic "were able to provide to drug-seeking customers, prescriptions for schedule II, III, and IV controlled substances."  IG Ex. 6 at 9.  Further, "prescriptions were issued for no legitimate medical reason and were prescribed in quantities greatly in excess of those which might be used for legitimate purposes," and the clinic's doctors "would commonly prescribe excessive amounts of controlled substances to the patients at the pill mills, primarily some combination of controlled substances including most often oxycodone, thereby causing . . . and facilitating the misuse, abuse, and illicit distribution of these controlled substances."  IG Ex. 6 at 9.  In addition to the conspiracy charge, the superseding indictment charged Petitioner with two counts of unlawfully prescribing controlled substances, in violation of 18 U.S.C. § 2 and 21 U.S.C. § 841(a)(1), (b)(1)(C), and (b)(2).7   IG Ex. 6 at 12.

On June 13, 2018, a jury found Petitioner guilty of the aforementioned charges.  IG Ex. 4 at 1-2.  A Senior United States District Judge imposed judgment on December 5, 2018, at

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which time he imposed a sentence that included a separate 96-month term of incarceration for each count, to be served concurrently.  IG Ex. 7 at 2.  The sentencing judge also ordered a three-year term of post-release supervision, with the following special condition:  "[Petitioner] shall not engage in an occupation, business, or profession that entails the operation or management of a pain management clinic, weight loss clinic, or any other type of medical clinic or medical practice."  IG Ex. 7 at 5.

Petitioner does not dispute that he has criminal convictions that mandate an exclusion for a minimum period of five years.  P. Br. at 1 (acknowledging conviction for one count of conspiracy to dispense controlled substances and two counts of unlawful dispensing of controlled substances); 4 (proposing a reduced period of exclusion of six years).  An individual is "convicted" of a criminal offense "when a judgment of conviction has been entered against the individual" or when a guilty plea "has been accepted by a Federal, State, or local court."  42 U.S.C. § 1320a-7(i)(1), (3).  Petitioner has undoubtedly been convicted of felonies relating to the unlawful manufacture, distribution, prescription, or dispensing of a controlled substance.  IG Ex. 7 at 1; see IG Ex. 7 at 2 (sentence of 96 months of incarceration for each count, to run concurrently); see 18 U.S.C. § 3559(a) (federal criminal code classifying a crime as a felony if the offense is punishable by more than one year of incarceration).  Therefore, Petitioner's felony convictions involving the conspiracy to dispense controlled substances and the unlawful dispensing of controlled substances mandate exclusion pursuant to section 1128(a)(4) of the Act.  IG Ex. 7 at 1.

2. A 12-year minimum exclusion is warranted based on the presence of two aggravating factors and no mitigating factors.

Pursuant to 42 U.S.C. § 1320a-7(c)(3)(B), the minimum period of exclusion based on a section 1128(a)(4) felony conviction relating to a controlled substance is five years.    Owing to the existence of aggravating factors, the IG imposed a 12-year exclusion, which is more than double the mandatory five-year minimum period of exclusion.  The IG has the discretion to impose an exclusion longer than the minimum period when aggravating factors are present.  See 42 C.F.R. § 1001.102.  Petitioner argues that an exclusion for a minimum period of 12 years is not warranted and that a six-year exclusion would be appropriate.  P. Br. at 2-4.  However, Petitioner does not dispute the IG's determination that the exclusion should be lengthened based on the application of two aggravating factors.  Nor does Petitioner argue that the IG failed to consider any regulatory mitigating factors.

As previously discussed, the IG asserts the presence of two aggravating factors.  IG Ex. 2 at 2; IG Br. at 4-8.  First, the sentence imposed included incarceration.  42 C.F.R. § 1001.102(b)(5); IG Ex. 7 at 2.  Second, Petitioner was subject to another adverse action based on the same circumstances that support the exclusion.  42 C.F.R. § 1001.102(b)(9); IG Ex. 8.

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With regard to Petitioner's sentence of incarceration, Petitioner was sentenced to a significant period of incarceration of 96 months for his three convictions relating to the manufacture, distribution, prescription, or dispensing of a controlled substance.  IG Ex. 7 at 2.  The IG properly considered Petitioner's lengthy sentence of incarceration to be an aggravating factor in this case.  42 C.F.R. § 1001.102(b)(5); see Jason Hollady, M.D., DAB No. 1855 at 12 (2002) (determining that a nine-month period of incarceration was "relatively substantial").

With respect to the second aggravating factor, Petitioner was subject to another adverse action, the suspension of his Georgia medical license.  IG Ex. 8; see 42 C.F.R. § 1001.102(b)(9).  In May 2016, Petitioner waived his right to contest the suspension of his medical license following his indictment for the aforementioned felony charges.  IG Ex. 8 at 1-2.  Because Petitioner's license suspension was based on the same facts underlying his conviction and exclusion, the suspension of Petitioner's medical license is properly considered an adverse action that is an aggravating factor pursuant to 42 C.F.R. § 1001.102(b)(9).  IG Ex. 8 at 1-2.

Evidence of aggravation may be offset by evidence of mitigation if it relates to one of the factors set forth at 42 C.F.R. § 1001.102(c).  I cannot consider evidence of mitigation unless it offsets the lengthening of a period of exclusion due to one or more of the enumerated aggravating factors listed in 42 C.F.R. § 1001.102(b).  42 C.F.R. § 1001.102(c).  Petitioner has not identified a factor that can warrant mitigation of an exclusion pursuant to 42 C.F.R. § 1001.102(c).

A minimum period of exclusion of 12 years is appropriate based on the presence of two aggravating and no mitigating factors; the additional seven years of exclusion is entirely reasonable based on the presence of aggravating factors.  In fact, the 12-year period of exclusion nearly parallels the sentence imposed by the District Court, in that the sentence effectively restricted Petitioner's ability to operate or manage a medical practice for up to 11 years following his criminal conviction.  Specifically, Petitioner was sentenced to eight years of incarceration, to be followed by three years of supervised release in which he would be precluded from "engag[ing] in an occupation, business or profession that entails the operation or management" of a pain management clinic, medical clinic, or medical practice.  By fashioning a special condition of supervision that restricted Petitioner's ability to operate or manage a medical practice, it is apparent that the sentencing judge believed that Petitioner, as a physician, could continue to pose a threat to the public following his release from incarceration.  IG Ex. 7 at 5.  Further, aside from his lengthy period of incarceration, Petitioner's medical license was suspended based on the same criminal conduct that led to his conviction.  42 C.F.R. § 1001.102(b)(5), (9).  As such, a minimum period of exclusion of 12 years based on consideration of two aggravating factors is entirely reasonable.  See Clemenceau Theophilus Acquaye, DAB No. 2745 at 9 (2016) (concluding that a 13-year exclusion was reasonable based on a single aggravating factor of three to 15 years of incarceration); Eugene Goldman, M.D.,

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DAB No. 2635 at 8-12 (2015) (15-year exclusion upheld based on two aggravating factors).

V.  Effective Date of Exclusion

The effective date of the exclusion, March 19, 2020, is established by regulation, and I am bound by that provision.  42 C.F.R. §§ 1001.2002(b), 1005.4(c)(1).

VI.  Conclusion

For the foregoing reasons, I affirm the IG's decision to exclude Petitioner from participation in Medicare, Medicaid, and all federal health care programs for a minimum period of 12 years.

• 1. The February 28, 2020 letter informed Petitioner that he would be excluded for a minimum period of 15 years.  IG Ex. 2 at 1.  In a subsequent letter, dated July 2, 2020, the IG reduced the length of the exclusion to 12 years based on her determination that one of the three previously cited aggravating factors was inapplicable.  IG Ex. 3.
• 2. I omit discussion of a third aggravating factor because that factor was not a basis for lengthening the exclusion.  IG Ex. 3; see IG Ex. 2 at 2.
• 3. As a result of the COVID-19 pandemic, the Civil Remedies Division experienced significant disruptions in its ability to process incoming and outgoing mail, which delayed the docketing of this case.
• 4. Petitioner also filed a motion to vacate the exclusion order, which I denied on August 7, 2020.  In addition, Petitioner filed a motion to compel the IG to release records pursuant to the Freedom of Information Act, which I denied in an order dated August 28, 2020.
• 5. My findings of fact and conclusions of law are set forth in italics and bold font.
• 6. While there are slight differences in the wording of section 1128 of the Act and its codification at 42 U.S.C. § 1320a-7, the two authorities are substantively identical and I refer to them interchangeably.  I further note that the Secretary of the Department of Health and Human Services has delegated to the IG the authority "to suspend or exclude certain health care practitioners and providers of health care services from participation in these programs."  48 Fed. Reg. 21,662 (May 13, 1983); see also 42 C.F.R. § 1005.1.
• 7. I do not address another charge for which Petitioner was acquitted by a jury.