Jodi Lynn Levins, DAB CR5831 (2021)

DECISION

The Inspector General (IG) of the United States Department of Health and Human Services excluded Petitioner, Jodi Lynn Levins, from participation in Medicare, Medicaid, and all other federal health care programs based on her conviction of felony offenses related to the unlawful manufacture, distribution, prescription, or dispensing of a controlled substance.  For the reasons discussed below, I conclude that the IG has a basis for excluding Petitioner because she was convicted of felony offenses related to her unlawful prescription of controlled substances.  An exclusion for the minimum period of five years is mandatory pursuant to section 1128(c)(3)(B) of the Social Security Act (Act) (42 U.S.C. § 1320a-7(c)(3)(B)).  

I.  Background

In a letter dated October 30, 2020, the IG informed Petitioner that she would be excluded from participation in Medicare, Medicaid, and all federal health care programs as defined in section 1128B(f) of the Act (42 U.S.C. § 1320a-7b(f)) for a minimum period of five years, effective 20 days from the date of the letter.  IG Exhibit (Ex.) 1 at 1.  The IG explained that Petitioner’s exclusion was based on a felony conviction “in the Circuit

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Court of the Tenth Judicial Circuit, in and for Polk County, State of Florida, of a criminal offense related to the unlawful manufacture, distribution, prescription, or dispensing of a controlled substance as defined under Federal or State law.”  IG Ex. 1 at 1.  The IG explained that she had excluded Petitioner pursuant to section 1128(a)(4) of the Act, which 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.  IG Ex. 1 at 1; see 42 U.S.C. § 1320a-7(a)(4).   

Petitioner filed a request for hearing on November 13, 2020.  On November 16, 2020, the Civil Remedies Division issued my standing pre-hearing order (Pre-Hearing Order), and on December 3, 2020, pursuant to 42 C.F.R. § 1005.6, I presided over a telephonic pre‑hearing conference.  That same day, 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 four proposed exhibits (IG Exs. 1-4).  Petitioner, who is unrepresented by counsel, filed a brief (P. Br.) that included supporting documents that have not been proposed as exhibits.1   Thereafter, the IG filed a reply brief (IG Reply).

Neither party has submitted the testimony of any witnesses.  A hearing is therefore unnecessary for the purpose of cross-examination of any witnesses.  Pre-Hearing Order § 11.  I will decide this case on the written submissions and documentary evidence.  Pre‑Hearing Order §§ 1, 5, 17.   

II.  Issue

Whether there is a basis for exclusion pursuant to 42 U.S.C. § 1320a-7(a)(4).  See 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.

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IV.  Findings of Fact, Conclusions of Law, and Analysis2

1. Petitioner’s conviction subjects her to a mandatory exclusion from all federal health care programs for a minimum period of five years.

Section 1128(a)(1) requires a mandatory exclusion from all federal health care programs under certain conditions.3   Section 1128(a)(1) 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 1128B(f)):

****

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

See 42 U.S.C. § 1320a-7(a)(4).

On November 20, 2018, the State of Florida filed an information charging that Petitioner committed 26 separate felony offenses.  IG Ex. 2.  As relevant for purposes of this decision, Counts 1 through 8 charged that Petitioner obtained controlled substances by fraud on numerous dates between July 29 and August 18, 2017, stating that she “did acquire or obtain, or attempt to acquire or obtain possession of Oxycodone, a controlled substance, by misrepresentation, fraud, forgery, deception or subterfuge, contrary to

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Florida Statute 893.13.”4   IG Ex. 2 at 1-2.  On December 3, 2018, Petitioner signed a “Felony Plea Form” in which she agreed to enter a guilty/no contest plea to, inter alia, the first eight counts the information and participate in a “post adjudicatory” drug court program as a condition of probation.  IG Ex. 3 at 1-3.  A judgment of conviction, dated December 3, 2018, reports that Petitioner “entered a plea of nolo contendere” to, inter alia, the first eight counts of the information.  IG Ex. 4 at 1.  The judgment “ordered that [Petitioner] is hereby adjudicated guilty . . . .”  IG Ex. 4 at 2.  A “Monetary Obligations Order” ordered payment of mandatory costs, fines, and fees, to include “Felony” and “Adjudicated Guilty” mandatory costs.  IG Ex. 4 at 3.

I find that Petitioner was convicted of criminal offenses that mandate exclusion from all federal health care programs pursuant to section 1128(a)(4) of the Act.

As relevant here, an individual is “convicted” of a criminal offense “when a judgment of conviction has been entered against the individual.”  42 U.S.C. § 1320a-7(i)(1).  A state court issued a judgment of conviction on December 3, 2018, and Petitioner acknowledges that she was convicted of criminal offenses.  IG Ex. 4; P. Br. at 1-2.  Further, the offense of obtaining a controlled substance by fraud is categorized as a third-degree felony and carries a maximum term of incarceration of five years; the IG correctly treated these offenses as felony offenses for purposes of exclusion.  IG Ex. 4 at 1; see IG Ex. 2 at 1-2; Fla. Stat. § 775.082(9)(a)3.d.; see, e.g., 21 U.S.C. § 802(44) (defining a felony drug offense as an offense that is punishable by imprisonment for more than one year under any law of the United States or of a State).   

Petitioner’s multiple convictions for obtaining controlled substances by fraud mandate exclusion.  See IG Exs. 2; 4.  Petitioner admits that, as a nurse practitioner, her offense conduct involved “writing prescriptions in other people’s names for [her own] benefit.”  P. Br. at 4.  Thus, Petitioner concedes that her convictions relate to the unlawful prescribing of controlled substances.  P. Br. at 4.  Because exclusion is mandated when a felony offense is related to the unlawful prescription of a controlled substance, exclusion is mandated in this case.  42 U.S.C. § 1320a-7(a)(4).

When exclusion is mandated pursuant to 42 U.S.C. § 1320a-7(a)(4), the period of exclusion must be for a minimum period of five years.  42 U.S.C. § 1320a-7(c)(3)(B).  Congress, through enactment of the Act, determined that an individual who has been

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convicted of a criminal offense related to the manufacture, distribution, prescription, or dispensing of a controlled substance must be excluded from federal health care programs for no less than five years and did not afford an administrative law judge any discretion to shorten the length of an exclusion.  42 U.S.C. § 1320a‑7(c)(3)(B).  

I recognize that Petitioner successfully completed a lengthy substance abuse treatment program and currently serves as a facilitator for a substance abuse support group, both of which are commendable.  See P. Br. at 4-5.  Further, based on Petitioner’s successful completion of the drug court post-adjudicatory program, the State of Florida filed a notice of nolle prosequi with respect to 20 other drug-related charges, to include drug trafficking.  P. Br. at 7 (appendices).  However, I may not shorten an exclusion to less than the five years mandated by Congress.  42 U.S.C. § 1320a‑7(c)(3)(B).  I am not empowered to “[f]ind invalid or refuse to follow Federal statutes or regulations . . . .”  42 C.F.R. § 1005.4(c)(1).  An exclusion for a minimum period of five years is mandated by law.  42 U.S.C. § 1320a-7(c)(3)(B).

V.  Effective Date of Exclusion

The effective date of the exclusion, November 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 five years, effective November 19, 2020.

1. Because Petitioner’s brief and supporting documents are unpaginated, I cited to the page number listed in the .pdf version of the filing.
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2. My findings of fact and conclusions of law are set forth in italics and bold font.
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3. 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.
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4. I focus on Counts 1 through 8 of the information, which relate to obtaining a controlled substance by fraud.  IG Exs. 2 at 1-2; 4 at 1.  Petitioner was also convicted of Counts 21 through 26 of the information, which relate to her criminal use of personal identification information to obtain controlled substances.  IG Exs. 2 at 4-5; 4 at 1; see P. Br. at 4 (Petitioner’s acknowledgment that, for her own use, she unlawfully wrote prescriptions in the names of other individuals).
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