James Brian Joyner, M.D., DAB CR5071 (2018)

DECISION

The Inspector General (IG) of the United States Department of Health and Human Services excluded James Brian Joyner, M.D. (Petitioner) from participation in Medicare, Medicaid, and all federal health care programs for a period of 13 years, pursuant to section 1128(a)(4) of the Social Security Act (Act) (42 U.S.C. § 1320a-7(a)(4)).  Petitioner now challenges the exclusion.  For the reasons stated below, I conclude that the IG had a basis for excluding Petitioner from program participation and that the 13-year exclusion period is not unreasonable.  I therefore affirm the IG’s exclusion determination.

I.  Case Background and Procedural History

On October 7, 2014, a grand jury indicted Petitioner with violations of 21 U.S.C. §§ 841(a)(1) and 846 (Count One) and of 18 U.S.C. § 1956(h) (Count Two).  IG Ex. 2.1  On May 25, 2016, Petitioner entered a plea agreement agreeing to plead guilty to Count One in exchange for the dismissal of Count Two.  IG Ex. 3 at 1.  On November 18, 2016,

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the Court accepted Petitioner’s plea, dismissed Count Two, and sentenced him to 70 months of imprisonment.  IG Ex. 4.

By letter dated June 30, 2017, the IG notified Petitioner that he was being excluded from participation in Medicare, Medicaid, and all federal health care programs under 42 U.S.C. § 1320a-7(a)(4) for a period of 15 years.  IG Ex. 1.  The IG based the exclusion on Petitioner’s felony conviction of a criminal offense in the United States District Court, Eastern District of Tennessee (District Court) related to the unlawful manufacture, distribution, prescription, or dispensing of a controlled substance as defined under federal or state law.  Id. at 1.

The IG identified two aggravating factors as a basis for increasing the exclusion period from five to 15 years:  (1) the acts that resulted in Petitioner’s conviction, or similar acts, were committed over a period of more than one year, from approximately July 2009 to December 2010; and (2) the sentence imposed by the court included a term of incarceration, in this case 70 months.  Id. at 2.

Petitioner requested a hearing before an administrative law judge (ALJ) to dispute the length of the exclusion.  Specifically, Petitioner challenged the first aggravating factor, asserting his plea agreement established that he was only involved in the acts that led to his conviction from April 30, 2010 to June 30, 2010.  On October 12, 2017, I held a prehearing conference by telephone with the parties, the substance of which is summarized in the October 17, 2017 Order and Schedule for Filing Briefs and Documentary Evidence (Summary Order).

After the prehearing conference, on October 19, 2017, the IG issued an amendment to Petitioner’s notice of exclusion.  IG Ex. 5.  The amendment notified Petitioner that the IG reconsidered its assessment of the period of exclusion and had removed the first aggravating factor, finding that Petitioner’s acts that resulted in his conviction were not committed over a period of one year or more.  As a result, the IG reduced Petitioner’s exclusion period from 15 years to 13 years.  Id.

The IG filed an informal brief (IG Br.) on November 13, 2017, with exhibits marked as IG Exs. 1 through 5.  Petitioner filed a Motion for Continuance and Stay of Proceedings (Motion to Stay) on January 9, 2018, a Motion to Compel Discovery (Motion to Compel) on January 10, 2018, and an informal brief (P. Br.) that was received on January 18, 2018.  The IG filed its responses to Petitioner’s motions on January 26, 2018, and a reply brief (IG Reply) on January 29, 2018.  Petitioner filed a sur-reply (P. Sur-Reply) that was received on February 15, 2018.

Petitioner did not object to any of the IG’s proposed exhibits.  Therefore, I admit all of the proposed exhibits into the record.  Order ¶ 5; 42 C.F.R. § 1005.8(c); Civ. Remedies Division Pro. (CRDP) § 14(e).

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The IG indicated he did not believe a hearing to be necessary in this case and identified no witnesses.  IG Br. at 10.  Petitioner asserted a hearing is necessary and provided a lengthy list of proposed witnesses.  P. Br. at 3-4.  However, I advised the parties that “[s]hould a party desire an in-person hearing, it must submit the written testimony of its witnesses in advance, in the form of an affidavit or a written sworn declaration.”  Summary Order ¶ 7.  While Petitioner submitted a list of witnesses, he did not provide direct examination testimony in writing for his proposed witnesses, as directed by my Summary Order.  Nor has either party requested cross-examination of the opposing party’s witnesses.  CRDP § 19(d).  Therefore, I do not find that an in-person hearing is necessary and accordingly will decide this case on the briefs submitted and the exhibits of record.

II.  Ruling on Pending Motions

A. Motion to Stay

Petitioner seeks to stay the proceedings “until the appellate process is complete in the alleged underlying criminal matter.”  Petitioner asserts that because he is appealing his criminal conviction, the conviction is not final, and therefore, the exclusion “is in violation of the U.S. Supreme Court.”  Motion to Stay.  This argument is without merit.  While Petitioner may appeal his criminal conviction, pursuant to section 1128(i)(1) of the Act (42 U.S.C. § 1320a-7(i)(1)), exclusion is required when an individual is convicted of an offense “regardless of whether there is an appeal pending.”  The regulations do not contemplate staying an exclusion while an appeal of the underlying conviction is pending.  As discussed further below, Petitioner has, for purposes of exclusion, been convicted because his guilty plea has been accepted by a federal court.  See Act § 1128(i)(1), (3); 42 U.S.C. § 1320a-7(i)(1), (3).  I note that should Petitioner succeed in his appeal and obtain reversal of his conviction, the IG is required to remove his exclusion retroactive to its effective date.  42 C.F.R. § 1001.3005(a)(1).  For these reasons, I deny Petitioner’s Motion to Stay.

B. Motion to Compel

Petitioner also seeks to compel discovery of a copy of the “Drug Enforcement Agency’s DOMEX Report for provider BJ5013216,”2 and “Physical copies of patient records where Petitioner was the prescribing provider.”  Motion to Compel.  Petitioner explains that the DOMEX report would show that he wrote prescriptions in the suggested dosage

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range, while the patient records would show that he wrote no prescription for more than 30 days.  P. Br. at 7.

Based on Petitioner’s arguments, it appears that he is seeking documents generated in connection with the investigation into his criminal activities in order to undermine his conviction.  However, Petitioner may not attack his conviction or the factual basis underlying that conviction before me.  See 42 C.F.R. § 1001.2007(d); Damon Jamuale Heath, DAB CR4891 at 8 (2017) (providing a petitioner “may not re-litigate his conviction, including the facts underlying his conviction, in this forum.”).  The materials sought by Petitioner are therefore irrelevant to these proceedings.  His Motion to Compel is accordingly denied.  42 C.F.R. § 1005.7(e)(2)(i).

III.  Issues

The issues in this case are limited to determining if the IG has a basis for excluding Petitioner from participating in Medicare, Medicaid, and all other federal health care programs and, if so, whether the length of exclusion imposed by the IG is unreasonable.  See 42 C.F.R. § 1001.2007(a)(1).

IV.  Jurisdiction

I have jurisdiction to hear and decide this case.  42 U.S.C. § 1320a-7(f)(1); 42 C.F.R. §§ 1001.2007(a)(1), 1005.2(a).

V.  Findings of Fact, Conclusions of Law, and Analysis3

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

The Secretary must exclude from participation in any federal health care program any individual convicted under federal or state law of a felony offense related “to the unlawful manufacture, distribution, prescription, or dispensing of a controlled substance.”  Act § 1128(a)(4); 42 U.S.C. § 1320a-7(a)(4).  Exclusion for a minimum period of five years is mandatory for any individual or entity convicted of a criminal offense for which exclusion is required by section 1128(a) of the Act.  Act § 1128(c)(3)(B); 42 U.S.C. § 1320a-7(c)(3)(B).  Pursuant to 42 C.F.R. § 1001.102(b), an individual’s period of exclusion may be lengthened based on the presence of specified aggravating factors.  Only if the aggravating factors justify an exclusion of longer than five years are mitigating factors considered as a basis for reducing the period of exclusion to no less than five years.  42 C.F.R. § 1001.102(c).

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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(b).

1. Petitioner was convicted of a criminal offense as defined in sections 1128(i)(1) and 1128(i)(3) of the Act.

Section 1128(i) of the Act provides that an individual is “convicted” of a criminal offense under the following circumstances:

(1) when a judgment of conviction has been entered against the individual or entity by a Federal, State, or local court, regardless of whether there is an appeal pending or whether the judgment of conviction or other record relating to criminal conduct has been expunged;

(2) when there has been a finding of guilt against the individual or entity by a Federal, State, or local court;

(3) when a plea of guilty or nolo contendere by the individual or entity has been accepted by a Federal, State, or local court; or

(4) when the individual or entity has entered into participation in a first offender, deferred adjudication, or other arrangement or program where judgment of conviction has been withheld.

Act § 1128(i).

The IG argues that Petitioner was “convicted” because his circumstances meet the statutory criteria specified in subsection 1128(i)(3).  IG Br. at 4.  Petitioner disagrees and asserts that because he has a pending appeal, his conviction is not “final and thus ripe for any civil remedy action such as the instant matter.”  P. Br. at 1-2, 6.

Petitioner’s arguments are unavailing.  Under subsection 1128(i)(3), an individual is considered “convicted” for the purposes of exclusion when a court accepts his or her guilty plea.  It is undisputed that Petitioner pleaded guilty to conspiracy to distribute a quantity of oxycodone, morphine, oxymorphone, and alprazolam by writing illegal prescriptions, in violation of 21 U.S.C. §§ 841(a)(1) and 846.  IG Ex. 3 at 1.  On November 18, 2016, the U.S. District Court for the Eastern District of Tennessee

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accepted Petitioner’s plea.  IG Ex. 4.  Accordingly, I conclude that Petitioner was “convicted” within the meaning of section 1128(i)(3) of the Act.

Petitioner’s circumstances also meet the definition of “convicted” under section 1128(i)(1) of the Act because a judgment of conviction was entered against him by a federal, state, or local court.  Act § 1128(i)(1).  Under this provision, an individual is considered “convicted” “regardless of whether there is an appeal pending.”  Id.  It is undisputed that on November 18, 2016, in addition to accepting Petitioner’s guilty plea, the District Court also entered a judgment sentencing Petitioner to 70 months of imprisonment followed by three years of supervised release and ordered him to pay a $100 assessment.  IG Ex. 4.  Although Petitioner asserts that his conviction is not “final and thus ripe for any civil remedy action,” the Act expressly states that an individual is considered “convicted” for purposes of exclusion if a judgment of conviction has been entered “regardless of whether there is an appeal pending.”  Act § 1128(i)(1).  Therefore, I find Petitioner was also “convicted” within the meaning of section 1128(i)(1) of the Act.

2. Petitioner must be excluded pursuant to section 1128(a)(4) of the Act because Petitioner was convicted of a felony offense related to the unlawful manufacture, distribution, prescription, or dispensing of a controlled substance.

An individual must be excluded from participation in any federal health care program if the individual was convicted of a felony that occurred after August 21, 1996, relating to the unlawful manufacture, distribution, prescription, or dispensing of a controlled substance.  Act § 1128(a)(4); see also 42 C.F.R. § 1001.101(d).  As stated above, I conclude that Petitioner was convicted within the meaning of the Act.  Therefore, I must determine whether Petitioner’s conviction was for a felony offense and whether it was related to the unlawful manufacture, distribution, prescription, or dispensing of a controlled substance.

Petitioner’s conviction pursuant to 21 U.S.C. § 841(a)(1) is not specifically classified as a felony.4  However, any offense not specifically classified in the section defining it is classified as a class C felony if the maximum term of imprisonment authorized is less than 25 years but at least ten years.  18 U.S.C. § 3559(a)(3).  Petitioner’s conviction is for an offense punishable pursuant to 21 U.S.C. § 841(b)(1)(C), which provides that an individual shall be sentenced to a term of imprisonment not more than 20 years.  Therefore, Petitioner was convicted of a felony offense.

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Based on the language of Count One of the Indictment (IG Ex. 2) and the facts stipulated to in Petitioner’s plea agreement (IG Ex. 3), Petitioner was involved in a scheme that involved Petitioner improperly providing narcotic prescriptions, specifically oxycodone, morphine, oxymorphone, and alprazolam, to his patients that were “not for a legitimate medical purpose” and were “outside the usual course of professional practice.”  IG Ex. 2 at 1-3; IG Ex. 3 at 3.  Petitioner’s plea agreement specifically states that the purpose of the conspiracy “was to distribute controlled substances, by prescribing the controlled substances . . . .”  IG Ex. 3 at 2.  Thus, there can be no dispute that the felony offense for which Petitioner was convicted was clearly related to the unlawful prescription of a controlled substance.

Despite pleading guilty to the felony offense of conspiracy to distribute a quantity of oxycodone, morphine, oxymorphone, and alprazolam by writing illegal prescriptions, Petitioner argues that his conviction was not related to the unlawful manufacture, distribution, prescription, or dispensing of a controlled substance within the meaning of section 1128(a)(4) of the Act.  P. Br. at 2, 7.  Petitioner asserts that he “wrote prescriptions that were within the manufacturer’s suggested dosage ranges” and that he did not prescribe “a dosage that was outside the norm dosage nor was any prescription written for more than a 30 day period.”  P. Br. at 7.  Petitioner further asserts that he “doubts that the OIG has investigated the alleged matter independently as it is charted [sic] to do so.”  P. Sur-Reply at 1.

In essence, Petitioner is attempting to argue that he did not commit the criminal acts to which he pleaded, and which led to his felony conviction.  Id.  However, the regulations explicitly preclude such a collateral attack on Petitioner’s conviction:

When the exclusion is based on the existence of a criminal conviction . . . where the facts were adjudicated and a final decision was made, the basis for the underlying conviction .  .  . is not reviewable and the individual or entity may not collaterally attack it either on substantive or procedural grounds in this appeal.

42 C.F.R. § 1001.2007(d).  The Departmental Appeals Board (Board) has repeatedly affirmed this categorical preclusion.  See, e.g., Lyle Kai, R.Ph., DAB No. 1979 at 8 (2005) (“Excluding individuals based on criminal convictions ‘provides protection for federally funded programs and their beneficiaries and recipients, without expending program resources to duplicate existing criminal processes.’” (internal citation omitted)).  Accordingly, I will not consider Petitioner’s arguments attacking his underlying conviction.  I conclude that there is a basis to exclude Petitioner pursuant to section 1128(a)(4) of the Act.

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

Five years is the minimum authorized period for a mandatory exclusion pursuant to section 1128(a).  Act § 1128(c)(3)(B); 42 U.S.C. § 1320a-7(c)(3)(B).  Because I have concluded that a basis exists to exclude Petitioner pursuant to section 1128(a)(4) of the Act (42 U.S.C. § 1320a-7(a)(4)), Petitioner must be excluded for a minimum period of five years.  Act § 1128(c)(3)(B); 42 U.S.C. § 1320a-7(c)(3)(B).

4. The IG proved that the District Court’s sentence included incarceration, which is an aggravating factor that justifies lengthening the period of exclusion beyond the five-year statutory minimum. 

The regulations establish aggravating factors that the IG may consider to lengthen the period of exclusion beyond the five-year minimum for a mandatory exclusion.  42 C.F.R. § 1001.102(b).  The IG may increase the length of an exclusion if the court’s sentence includes a period of incarceration.  42 C.F.R. § 1001.102(b)(5).

Here, the record shows that the District Court sentenced Petitioner to 70 months of incarceration followed by three years of probation based on his conviction for conspiracy to distribute a quantity of oxycodone, morphine, oxymorphone, and alprazolam by writing illegal prescriptions.  IG Ex. 4 at 2-3.  Thus, the IG has established the presence of this aggravating factor.

5. Petitioner did not prove any mitigating factors exist in this case which would justify reducing the exclusion period.

If an aggravating factor justifies an exclusion for longer than five years, only then can specified mitigating factors be considered as a basis for reducing the period of exclusion to no less than five years.  42 C.F.R. § 1001.102(c).  Petitioner has the burden to prove by a preponderance of the evidence that there is a mitigating factor or factors for me to consider.  42 C.F.R. § 1005.15(b)(1).  While Petitioner indicated that mitigating factors exist that support reducing the length of his exclusion, he failed to identify any mitigating factors that would apply or present any supporting evidence.  Based on my consideration of the entire record, I conclude that Petitioner has failed to establish any mitigating factor that I am permitted to consider to reduce the period of his exclusion.

6. Based on the aggravating factor in this case, and the absence of any mitigating factors, an exclusion period of 13 years is reasonable.

I must uphold the IG’s determination as to the length of exclusion unless it is unreasonable.  42 C.F.R. § 1001.2007(a)(1)(ii).  It is important to note that it is the quality of the aggravating (or mitigating) factors that is most important when considering the length of exclusion and not the sheer number of aggravating factors that are present in

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a given case.  As the Secretary stated in the preamble to the final rule establishing the exclusion regulations:

We do not intend for the aggravating and mitigating factors to have specific values; rather, these factors must be evaluated based on the circumstances of a particular case.  For example, in one case many aggravating factors may exist, but the subject’s cooperation with the OIG may be so significant that it is appropriate to give that one mitigating factor more weight than all of the aggravating.  Similarly, many mitigating factors may exist in a case, but the acts could have had such a significant physical impact on program beneficiaries that the existence of that one aggravating factor must be given more weight than all of the mitigating.  The weight accorded to each mitigating and aggravating factor cannot be established according to a rigid formula, but must be determined in the context of the particular case at issue.

57 Fed. Reg. at 3314-15 (1992).

The severity of the aggravating factor and the absence of any mitigating factors support an increase in length of Petitioner’s exclusion period beyond the five-year minimum.  Petitioner was sentenced to 70 months of imprisonment, which represents a substantial period of incarceration and indicates the severity of the scheme in which Petitioner was involved.  Indeed, the Board determined a nine-month period of incarceration was “relatively substantial,” and sufficient to support an eight-year exclusion period.  Jason Hollady, M.D., DAB No. 1855 at 12 (2002).  Here, the length of Petitioner’s incarceration was nearly eight times that imposed in Hollady.  The imposition of a significant length of incarceration for Petitioner’s conduct leads me to conclude the IG gave reasonable weight to this particular aggravating factor.

Petitioner has not presented any evidence that would establish that the IG failed to consider any mitigating factor.  Moreover, looking beyond the substantial length of the sentence imposed on Petitioner by the U.S. District Court, it is clear the circumstances of the case support the IG’s determination that a longer period of exclusion beyond the five-year minimum was warranted.  As he admitted in his guilty plea, Petitioner provided only nominal supervision to his staff, and minimal examinations of the patients to which he prescribed controlled substances including oxycodone and morphine.  IG Ex. 3 at 2-3.  Petitioner further conceded that his conduct did not meet the accepted course of professional practice, and that he prescribed these scheduled narcotics without legitimate medical purpose.  Id. at 4.  In short, the conduct to which Petitioner admitted in resolving the criminal case against him demonstrates that he put his community and his patients at

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grave risk for his own personal gain.  Accordingly, I must conclude that the IG’s determination to increase his exclusion period from five to 13 years was reasonable.

VI.  Conclusion

For the foregoing reasons, I affirm the IG’s determination to exclude Petitioner for 13 years from participating in Medicare, Medicaid, and all federal health care programs pursuant to section 1128(a)(4) of the Act (42 U.S.C. § 1320a-7(a)(4)).

• 1. Document 5c in the official case file maintained in the Departmental Appeals Board Electronic Filing (DAB E-File) system; for clarity and simplicity, I will cite to the exhibits attached by the parties to their respective briefs by the exhibit numbers indicated by the parties, not the document numbers assigned by DAB E-file.
• 2. Document and Media Exploitation report, created by the U.S. Department of Justice’s National Drug Intelligence Center to analyze raw data from evidence procured in connection to law enforcement investigations at the request of investigators or prosecutors. See U.S. Dep’t of Justice, Nat’l Drug Intelligence Center, Document and Media Exploitation Customer Guide at 3, available at https://www.justice.gov/archive/ndic/domex/domex-guide.pdf (last visited Apr. 12, 2018).
• 3. My findings of fact and conclusions of law appear in bold and italics.
• 4. Petitioner was also convicted pursuant to 21 U.S.C. § 846, which states “[a]ny person who attempts or conspires to commit any offense defined in this subchapter shall be subject to the same penalties as those prescribed for the offense, the commission of which was the object of the attempt or conspiracy.”