SUBJECT:

Andrew D. Goddard,

Petitioner,

The Inspector General.

DECISION

In this odd and puzzling case, Pharmacist Andrew Goddard (Petitioner) appropriated from his employer one tablet of the diuretic drug, Lasix, valued at no more than $0.20, which he used in a not-very-funny practical joke. The prank has cost him a felony conviction, and, because of the rigidity of the Inspector General's (I.G.) regulations, will now exclude him from participation in Medicare, Medicaid, and all federal health care programs for five years.

1. Background

The facts are not in dispute. In 1999, Petitioner was a pharmacist working at a Rite Aid pharmacy. As a practical joke, he took one 20 milligram tablet of furosemide, the generic form of Lasix, and put it in the office coffee pot. P. Ex. 1; I.G. Ex. 2. It seems that his employer was not amused, and he was criminally charged. I.G. Ex. 3. On February 26, 2003, he pled guilty in Ohio State Court to one fourth-degree felony count of theft of drugs, and to one misdemeanor count of placing harmful objects in food or confection. I.G. Exs. 4, 5.

In a letter dated August 31, 2005, the I.G. notified Petitioner that, because of the felony conviction, he would be excluded from program participation for five years pursuant to section 1128(a)(3) of the Social Security Act (Act). On September 15, 2005, Petitioner filed a timely request for review, and the matter has been assigned to me for resolution. The parties agree that this matter should proceed on their written submissions and that an in-person hearing is not necessary. Order (November 28, 2005) at 2; I.G. Brief (I.G. Br.) at 2. ⁽¹⁾

The parties have submitted their briefs. Attached to the I.G.'s brief are I.G. Exhibits (I.G. Exs.) 1-7. Attached to Petitioner's brief (P. Br.) is an exhibit I have labeled P. Ex. 1. The I.G. submitted a reply brief (I.G. Reply). There being no objections, I.G. Exs. 1-7 and P. Ex. 1 are admitted into evidence.

2. Issue

The sole issue before me is whether the I.G. had a basis upon which to exclude Petitioner from participation in the Medicare, Medicaid, and all federal health care programs. This depends on whether the felony for which he was convicted was "in connection with the delivery of a health care item or service." The length of the period of exclusion is not an issue because the I.G. imposed the statutory minimum.

3. Finding

Petitioner must be excluded for five years because he was convicted of a felony relating to theft in connection with the delivery of a health care item, within the meaning of section 1128(a)(3) of the Act. ⁽²⁾

Under the statute and regulations, an individual convicted of felony theft in connection with the delivery of a health care item must be excluded from participation in federal health care programs for a minimum of five years. Act, � 1128(a)(3); 42 C.F.R. � 1001.101(c). Petitioner admits the felony conviction, but argues that his offense was not committed in the course of delivery of a health care item. He recognizes the line of cases holding that theft of drugs by a pharmacist from his employer constitutes theft in connection with the delivery of a health care item. He nevertheless argues that these cases do not establish a general principle that all such thefts by a pharmacy employee are thefts in connection with the delivery of a health care item, and maintains that his case is different because he took only one, inexpensive non-controlled drug. Applying a "common sense analysis," he reasons, the Board has found the necessary connection only in cases involving significant theft of controlled substances. Erik D. DeSimone, R.Ph., DAB No. 1932 (2004) (where the petitioner pled guilty to theft of a controlled substance and paid $2,500 in restitution); Robert F. Tschinkel, R.Ph., DAB CR1323 (2005) (theft of Vicodin); Thomas A. Oswald, R.Ph., DAB CR1216 (2004) (conviction on four counts of theft of Schedule III controlled substances).

The Board's reasoning in finding a "common sense connection" in cases involving pharmacy employees has been as follows: the pharmacy obtains health care items for the purpose of delivering them to members of the general public in order to meet their medical needs. When an employee pharmacist takes one of those drugs, he interferes with the delivery of that item. "[T]heft of [a] drug while under the guise of performing his professional responsibilities is clearly the requisite common sense 'connection' to health care delivery that section 1128(a)(3) requires." DeSimone, DAB No. 1932, at 4-5.

The drug here may not be a controlled substance, but it is unquestionably a health care item. Petitioner may not have taken very much of it, but I cannot ignore that his theft was significant enough to garner for him a felony conviction. As uncomfortable as I may be with this result, I am not aware of any de minimus exception to the plain language of the regulation. And, while I do not believe that Petitioner poses any threat to the financial integrity of federal healthcare programs, I have no alternative but to sustain the exclusion.

4. Conclusion

For these reasons, I conclude that the I.G. has a basis for excluding Petitioner from participation in Medicare, Medicaid, and all other federal health care programs, and I sustain the five-year exclusion.

Carolyn Cozad Hughes

Administrative Law Judge

1. The I.G. mischaracterizes its submission as a motion for summary judgment. In fact, the parties have waived appearance at an oral hearing, and agreed to submit only documentary evidence and written argument. 42 C.F.R. � 1005.4(a)(5). The distinction may be significant because in summary judgment all disputed facts and inferences must be drawn in favor of the nonmoving party. Where the parties have agreed to resolve the case on the written record, the judge is free to weigh the evidence and to draw whatever inferences are most reasonable.

2. I make this one finding of fact/conclusion of law to support my decision in this case.