Phousavath Luangrath, DAB CR6095 (2022)

DECISION

Phousavath Luangrath (Petitioner) was convicted of misprision of a felony in violation of 18 U.S.C. § 4.  Based on the disposition of her criminal case, the Inspector General of the U.S. Department of Health and Human Services (IG) excluded Petitioner from participation in Medicare, Medicaid, and all federal health care programs for a period of five years, in accordance with section 1128(a)(4) of the Social Security Act (Act).  Petitioner appeals the exclusion.  For the reasons discussed below, I find that the IG properly excluded Petitioner.  Because five years is the minimum period of exclusion required by statute, a five-year exclusion is reasonable as a matter of law.

I.  Background

Petitioner is a registered nurse and a former employee of Erie County Medical Center (ECMC).  IG Exhibit (Ex.) 5 at 6; see also Petitioner’s Brief (P. Br.) at 3.  In late 2016 or early 2017, Petitioner became romantically involved with Dr. J.K., who also worked for ECMC.  P. Br. at 3; see also IG Ex. 3 at 2.  During this period, Dr. J.K. was a Drug Enforcement Administration (DEA) registrant and maintained DEA authorization to

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dispense controlled substances.  IG Ex. 5 at 3.  During this same period, he was addicted to Adderall.1   IG Ex. 3 at 3; P. Br. at 4.

While Petitioner and Dr. J.K. were romantically involved, Dr. J.K. asked Petitioner if he could issue Adderall prescriptions using her biographical information and Petitioner agreed.  IG Ex. 3 at 3.  From February 2, 2017 to December 21, 2017, Dr. J.K. electronically issued 10 prescriptions for Adderall under Petitioner’s name.  Id.  These prescriptions were not issued for a legitimate medical purpose; rather, they were intended for Dr. J.K.’s personal use.  Id.

In each instance, once Petitioner received a notification from a pharmacy informing her that the prescription was ready for pick up, Petitioner would fill the prescription and obtain the Adderall, which she would take to Dr. J.K.’s apartment.  Id.  Early in her relationship with Dr. J.K., Petitioner used Adderall with him.  However, as time passed, Dr. J.K. used most of the drug to support his addiction.  Id.; see also IG Ex. 5 at 15.  The relationship between Petitioner and Dr. J.K. became strained because of Dr. J.K.’s substance abuse problem and eventually ended in early 2018.  IG Ex. 5 at 14.

Based on these facts, a criminal complaint was filed against Petitioner, Dr. J.K., and other defendants in December 2018.  IG Ex. 5.  The complaint charged that the defendants conspired to possess with intent to distribute, and to distribute, controlled substances, as well as obtaining controlled substances through fraud.  Id. at 1.  In December 2019, Petitioner agreed to waive indictment and be charged by information with one count of misprision of a felony in violation of 18 U.S.C. § 4.  18 U.S.C. § 3362; Fed. R. Crim. P. 7(a)(1)(B), (b); IG Ex. 2 at 2; IG Ex. 3 at 1.  The single count of the information charged that Petitioner, "having knowledge of the actual commission of a felony . . . namely, the acquiring of controlled substances by misrepresentation, fraud, forgery, and subterfuge . . . by [Dr. J.K.], did conceal the same and did not as soon as possible make known the same to some judge or other person in civil . . . authority under the United States."  IG Ex. 2 at 1.

On December 23, 2019, Petitioner pleaded guilty to Count 1, as charged in the information, and admitted to the facts described above.  IG Ex. 3.  On July 22, 2020, the U.S. District Court for the Western District of New York (Court) entered judgment adjudicating Petitioner guilty of misprision of a felony.  IG Ex. 4 at 1.  The Court ordered Petitioner to pay restitution to Independent Health Association, Inc. in the amount of $572.20.  Id. at 5.

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In a letter dated October 29, 2021, the IG notified Petitioner that she was being excluded from participating in all Federal health care programs pursuant to section 1128(a)(4) of the Act for a period of five years.  Act § 1128(a)(4); 42 C.F.R. § 1001.101(a)(4); IG Ex. 1 at 1.

Petitioner timely requested a hearing before an administrative law judge.  Request for Hearing (RFH) at 1.  I held a telephone prehearing conference on January 26, 2022, in which both parties participated.  On the same day the telephone prehearing conference was held, I issued an Order and Schedule for Filing Briefs and Documentary Evidence (Briefing Order) in which I established a schedule for the parties to exchange their respective arguments and evidence.

Pursuant to the Briefing Order, the IG timely submitted a brief and five proposed exhibits (IG Br.; IG Exs. 1‑5).  Petitioner timely filed a brief and one incorrectly marked proposed exhibit (P. Br.; P. Ex. A).  The IG timely filed a reply brief (IG Reply).  Neither party objected to the exhibits offered by the opposing party.  Accordingly, in the absence of objection, I admit IG Exs. 1-5 and P. Ex. A into the record.

The Briefing Order directed the parties to indicate in their briefs whether an in-person hearing would be necessary and, if so, to submit the testimony of any proposed witness as "written direct testimony in the form of an affidavit or declaration."  Briefing Order ¶ 7.c.ii (emphasis omitted).  The order also explained that I would hold a hearing only if a party offered witness testimony that is relevant and non-cumulative and the opposing party requested cross‑examination.  Id. ¶ 9.  Because the parties agree that an in-person hearing is not necessary to resolve the case and neither party offered witness testimony, I decide this case based on the written record.  See IG Br. at 7; P. Br. at 5.

II.  Discussion

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

The Act requires the Secretary of Health and Human Services (Secretary) to exclude from program participation any individual or entity that has been convicted of a felony offense occurring after the date of the enactment of the Health Insurance Portability and Accountability Act of 1996 (that is, after August 21, 1996), and related to the unlawful manufacture, distribution, prescription, or dispensing of a controlled substance under federal or state law.  Act § 1128(a)(4).  The Secretary has delegated this authority to the IG.  42 C.F.R. § 1001.101(d).

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1. Petitioner was convicted of a felony offense occurring after August 21, 1996.

An individual has been "convicted" within the meaning of the Act when "a judgment of conviction has been entered against the individual . . . by a Federal, State, or local court;" "when there has been a finding of guilt against the individual . . . by a Federal, State, or local court;" or "when a plea of guilty or nolo contendere by the individual . . . has been accepted by a Federal, State, or local court."  Act § 1128(i)(1), (2), (3); see also 42 C.F.R. § 1001.2 (defining "convicted").

Petitioner concedes that she was convicted of a felony offense occurring after August 21, 1996.  RFH at 1; P. Br. at 1-2.  The IG’s evidence demonstrates that, on December 23, 2019, Petitioner entered a plea of guilty to violating 18 U.S.C. § 4.  IG Ex. 3.  Subsequently, on July 22, 2020, the Court entered judgment finding Petitioner guilty of violating 18 U.S.C. § 4, resulting in a felony conviction.3   IG Ex. 4 at 1.  Accordingly, Petitioner was convicted, as that term is defined in subsections 1128(i)(1), (2), and (3) of the Act, of a felony offense occurring after August 21, 1996.

2. The felony offense for which Petitioner was convicted is related to the unlawful manufacture, distribution, prescription, or dispensing of a controlled substance under federal law.

Petitioner argues that she was convicted of misprision of a felony, which she contends is not a felony relating to the unlawful manufacture, distribution, prescription, or dispensing of a controlled substance.  P. Br. at 2.  She contends that for a felony to be related to the unlawful manufacture, distribution, prescription, or dispensing of a controlled substance, the elements of the crime must include the requisite conduct.  P. Br. at 3.  Petitioner further argues that her conviction does not fall within section 1128(a)(4) because hers was a crime of omission, not commission.  See P. Br. at 3-4.  Neither of Petitioner’s arguments has merit.

First, Petitioner’s argument that her conviction is not on its face related to the unlawful manufacture, distribution, prescription, or dispensing of a controlled substance is belied by the plain terms of the information to which she pleaded guilty.  The information charged that the felony which Petitioner failed to report was Dr. J.K.’s "acquiring of controlled substances by misrepresentation, fraud, forgery, and subterfuge."  IG Ex. 2

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at 1.  Based on this language, I find that the felony for which Petitioner was convicted is, on its face, related to the unlawful manufacture, distribution, prescription, or dispensing of a controlled substance, within the meaning of section 1128(a)(4) of the Act.

However, even if the felony information to which Petitioner pleaded guilty did not specifically reference the unlawful manufacture, distribution, prescription, or dispensing of a controlled substance, this would not end the inquiry.  That is because section 1128(a)(4) requires only that an individual be convicted of a felony "relating to" the unlawful manufacture, distribution, prescription, or dispensing of a controlled substance.  The term "relating to" means that there must be a nexus or common-sense connection between the offense and the unlawful manufacture, distribution, prescription, or dispensing of a controlled substance.  See Quayum v. U.S. Dep’t of Health & Human Servs., 34 F. Supp. 2d 141, 143 (E.D.N.Y. 1998); see also Friedman v. Sebelius, 686 F.3d 813, 820 (D.C. Cir. 2012) (describing the phrase "relating to" in section 1128(b)(1) 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).  The "exclusion authority under section 1128 is not limited ‘to the bare elements of the offense on which the individual was convicted.’"  Aiman M. Hamdan, M.D., DAB No. 2955 at 7 (2019) (quoting with approval the administrative law judge’s decision (DAB CR5270 (2019))); see also Kami L. Purvis, DAB No. 2990 at 5-6 (2020).  Thus, an administrative law judge is "not limited to considering the bare elements or labels of the criminal statute under which the individual was convicted."  Funmilola Mary Taiwo, DAB No. 2995 at 8 (2020).  The administrative law judge is authorized to look at "‘evidence as to the nature of an offense,’ such as the ‘facts upon which a conviction was predicated.’"  Robert C. Hartnett, DAB No. 2740 at 7 (2016) (quoting Berton Siegel, D.O., DAB No. 1467 at 6-7 (1994)).

In this case, there is an obvious nexus or common-sense connection between Petitioner’s felony offense and the unlawful manufacture, distribution, prescription, or dispensing of a controlled substance.  It is undisputed that Petitioner authorized Dr. J.K. to use her biographical information to issue prescriptions for Adderall, a Schedule II controlled substance.  IG Ex. 3 at 3; P. Br. at 3; IG Br. at 2.  The prescriptions were outside the scope of professional practice and were not for any legitimate purpose, thereby making them unlawful.4   IG Ex. 3 at 2-3; see also IG Ex. 5 at 12.  The prescriptions were fraudulently issued for the personal used of Dr. J.K.  IG Ex. 3 at 3.  Furthermore,

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Petitioner not only provided Dr. J.K. with her biographical information to issue the fraudulent prescriptions when no bona fide doctor-patient relationship existed, she also filled the prescriptions, obtained the Adderall from the pharmacies, and transported the Adderall to Dr. J.K.’s house for personal consumption.  IG Ex. 3 at 3; see also IG Ex. 5 at 13-16.  In pleading guilty, Petitioner admitted to actions that, at a minimum, facilitated Dr. J.K.’s unlawful prescription of Adderall.

Petitioner also argues that section 1128(a)(4) of the Act does not apply to a crime of omission.  See P. Br. at 4.  As an initial matter, I do not accept Petitioner’s characterization of her felony conviction as limited to a crime of omission.  As I have described above, the factual basis for Petitioner’s guilty plea makes clear that her actions were not limited to failing to disclose Dr. J.K.’s wrongdoing.  Rather, she played an active part in Dr. J.K.’s fraudulent prescribing of Adderall.  See IG Ex. 3.  But, even if it were accurate to describe Petitioner’s felony as one of omission, this would not defeat application of section 1128(a)(4).  The statutory language nowhere suggests a limitation to crimes of commission.

Section 1128(a)(4) mandates exclusion of any individual convicted of any felony "relating to" the unlawful manufacture, distribution, prescription, or dispensing of a controlled substance.  The term "felony" is not defined by the Act.  However, the common meaning of "felony" is "a serious crime [usually] punishable by imprisonment for more than one year or by death."  Felony, Black’s Law Dictionary (11th ed. 2019); see also 18 U.S.C. § 3156(a)(3) ("[T]he term ‘felony’ means an offense punishable by a maximum term of imprisonment of more than one year.").  The plain meaning of the word felony does not exclude crimes of omission.  Moreover, no word or term in section 1128(a)(4) modifies the noun "felony" to restrict its meaning to encompass only crimes of commission.  See Act § 1128(a)(4).  The ordinary meaning of the word "felony" is broad enough to encompass both crimes of commission and crimes of omission.  Thus, even a felony crime of omission falls within section 1128(a)(4) if it is related to the unlawful manufacture, distribution, prescription, or dispensing of a controlled substance.  See Act § 1128(a)(4).

Accordingly, notwithstanding Petitioner’s arguments, her felony conviction was related to the unlawful manufacture, distribution, prescription, or dispensing of a controlled substance within the meaning of section 1128(a)(4) of the Act.  The IG was therefore required to exclude Petitioner from participation in the Medicare program for a minimum period of five years.  Act § 1128(c)(3)(B); 42 C.F.R. § 1001.102(a).

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2. Petitioner must be excluded for five years, the minimum period required by law.

Petitioner argues that the equities in this case weigh in favor of finding a five-year exclusion unreasonable.  See P. Br. at 3-5.  Petitioner asks me to reduce or reverse the five-year exclusion based on several factors.  Petitioner cites a history of childhood abuse; full cooperation with law enforcement and acceptance of responsibility for her criminal acts; an exemplary record of professional practice; and her current employer’s interests.  Id.  I have no reason to doubt Petitioner’s sincerity or her remorse and rehabilitation.  However, the regulations do not authorize an administrative judge to reduce the length of a mandatory exclusion below five years for any reason.

Petitioner mistakenly believes that I may review the reasonableness of her exclusion based on the balance of equities in this case.  P. Br. at 4.  Petitioner fails to acknowledge that, under the Act and regulations, her period of exclusion may not be less than five years.  Act § 1128(c)(3)(B); 42 C.F.R. § 1001.102(a).  Further, "[o]nly if any of the aggravating factors set forth in paragraph (b) of [section 1001.102] justifies an exclusion longer than [five] years, may 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).  Since the IG did not rely on aggravating factors to extend the five-year exclusion period, I may not consider mitigating factors in this case.  Moreover, the circumstances Petitioner describes are not mitigating factors that the regulations authorize the administrative law judge to consider.  42 C.F.R. § 1001.102(c).

Petitioner’s arguments are essentially equitable.  However, equitable considerations are not a basis to overturn Petitioner’s exclusion.  Decisions of the Departmental Appeals Board (DAB) have consistently rejected such arguments.  For example, the decision in Henry L. Gupton stated:

[Petitioner’s] contentions are also in essence pleas for equity on the grounds that the length of the exclusion is excessive based on the particular circumstances which Petitioner asserts. . . .  The contentions have no merit, however, because the length of the exclusion imposed by the [IG] is the minimum mandated by the statute.  Section 1128(a) of the Act.  The [IG], the [administrative law judge,] and the [DAB] all lack discretion to reduce the exclusion below the statutory minimum.

DAB No. 2058 at 13-14 (2007), aff’d, Gupton v. Leavitt, 575 F. Supp. 2d 874 (E.D. Tenn. 2008); see also Ioni D. Sisodia, M.D., DAB No. 2224 at 7 (2008).

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In summary, because Petitioner was convicted of a felony offense related to the unlawful prescription or distribution of a controlled substance, she must be excluded pursuant to section 1128(a)(4) of the Act.  Section 1128(c)(3)(B) of the Act provides that individuals excluded under section 1128(a)(4) must be excluded for no less than five years.  Act § 1128(c)(3)(B); 42 C.F.R. § 1001.102(a).  An administrative law judge does not have discretion to decline to exclude such an individual, nor to determine that the minimum exclusion period of five years is unreasonable.  42 C.F.R. § 1001.2007(a)(2).  The duration of Petitioner’s exclusion is therefore reasonable as a matter of law.

3. To the extent Petitioner argues that her exclusion should be waived due to a shortage of health care workers, I have no authority to grant a waiver.

Petitioner argues that the New York State Office of the Medicaid Inspector General (OMIG) determined not to exclude Petitioner from participating in the New York Medicaid program, instead reducing the sanction to a censure.  P. Br. at 4; see also P. Ex. A.  According to Petitioner, OMIG took this action so that Petitioner "would not be barred from nursing employment."  P. Br. at 4.  Petitioner additionally argues that her current employer, a dialysis facility, "had a critical problem [with staffing] because of the shortage of health care workers and especially nurses during the [COVID-19] pandemic."  Id.  These arguments and representations may be intended to suggest that Petitioner’s exclusion should be waived because excluding her would have a negative impact on access to health care services.  Such a remedy is beyond my authority to grant.

Under the applicable regulations,

The OIG has the authority to grant or deny a request from a State health care program that an exclusion from that program be waived with respect to an individual or entity . . . .  The request must be in writing and from an individual directly responsible for administering the State health care program.

42 C.F.R. § 1001.1801(a); see also Act § 1128(c)(3)(B).  Although the New York OMIG reduced Petitioner’s sanction to a censure, there is no indication that OMIG requested that her exclusion be waived.  To the contrary, the OMIG letter states that, should Petitioner be excluded from Medicare by the U.S. Department of Health and Human Services, her exclusion from Medicaid would be mandatory.  P. Ex. A.  Moreover, even had OMIG requested that Petitioner’s exclusion be waived, only the IG has authority to grant or deny a waiver request.  42 C.F.R. § 1001.1801(a).  Further, the "decision to grant, deny or rescind a request for a waiver is not subject to administrative or judicial review."  42 C.F.R. § 1001.1801(f); see also Act § 1128(c)(3)(B).  Therefore, I am without authority to grant (or even to consider) a request to waive Petitioner’s exclusion.  See, e.g., Matthew J. Girardy, DMD, DAB No. 2987 at 6 (2020).

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III.  Conclusion

For the reasons explained above, I conclude that the IG properly excluded Petitioner from participation in Medicare, Medicaid, and all federal health care programs.  An exclusion of five years is the minimum period required by law.

1. Adderall is a brand name for dextroamphetamine-amphetamine, which is a Schedule II controlled substance.  See IG Ex. 5 at 5 n.2; see also U.S. Drug Enf’t Admin., Drug Scheduling, http://www.dea.gov/drug-information/drug-scheduling (last visited May 27, 2022).
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2. My findings of fact and conclusions of law appear as headings in bold italic type.
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3. Pursuant to title 18 of the United States Code, a criminal offense that carries a maximum penalty of incarceration for less than five years but for more than one year is classified as a class E Felony.  18 U.S.C. § 3559(a)(5).  In this case, the crime for which Petitioner was convicted, misprision of a felony, is a class E felony because it carries a maximum penalty of incarceration of three years.  18 U.S.C. § 4.
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4. "A prescription for a controlled substance to be effective must be issued for a legitimate medical purpose by an individual practitioner acting in the usual course of his professional practice."  21 C.F.R. § 1306.04.  A physician, in this case Dr. J.K., "acts outside professional practice when he issues a prescription for an individual who is not under his direct care."  United States v. Ahuja, 209 F. Supp. 3d 489, 494 (D. Conn. 2016) (citing United States v. Salcedo, No. 02–CV–1095 (FB) (VVP), 2003 WL 21196843, at *2 (E.D.N.Y. Feb. 19, 2003)).
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