SUBJECT:

Bruce S. Worrell, D.O.,

Petitioner,

The Inspector General.

DECISION

I sustain the determination of the Inspector General (I.G.) to exclude Bruce S. Worrell, D.O., (Petitioner) from participating in the Medicare, Medicaid, and all other federal health care programs, for a period of five years. I base my decision on the documentary evidence, the applicable law and regulations, and the arguments of the parties. It is my finding that the Petitioner was convicted of "a felony relating to the unlawful manufacture, distribution, prescription, or dispensing of a controlled substance," within the meaning of section 1128(a)(4) of the Social Security Act (Act).

This case is before me pursuant to a request for hearing filed by Petitioner on July 19, 2004. See 42 C.F.R. § 1001.2007.

By letter dated June 30, 2004, the I.G. notified Petitioner that he was being excluded from participating in the Medicare, Medicaid, and all federal health care programs as defined in section 1128B(f) of the Act for the statutory minimum period of five years. The I.G. informed Petitioner that the action was taken under section 1128(a)(4) due to his conviction of a criminal offense, as defined in section 1128(i), related to the unlawful manufacturing, distribution, prescription, or dispensing of a controlled substance.

The parties agreed that this matter could be decided based on written arguments and documentary evidence, and that an evidentiary hearing was unnecessary. Each party has made written submissions in support of their respective contentions. The I.G. submitted five proposed exhibits. These have been identified as I.G. Exhibits (Exs.) 1-5. Petitioner submitted two proposed exhibits. These have identified as Petitioner's (P.) Exs. 1-2. ⁽¹⁾

Petitioner is a licensed Doctor of Osteopathy (D.O.) who was convicted in the State of Ohio, Court of Common Pleas, Hamilton County, of a felony offense related to the unlawful, manufacture, distribution, prescription, or dispensing of a controlled substance.

I. Issue

Whether the I.G. had a basis upon which to exclude Petitioner from participating in the Medicare, Medicaid, and all other federal health care programs.

II. Applicable Law and Regulations

Section 1128(a)(4) of the Act authorizes the Secretary of Health and Human Services (Secretary) to exclude from participation in any federal health care program (as defined in section 1128B(f) of the Act), any individual convicted under federal or State law, of a criminal offense relating to the manufacture, distribution, prescription, or dispensing of a controlled substance.

The exclusion under section 1128(a)(4) of the Act must be for a minimum period of five years. Act, section 1128(c)(3)(B). However, aggravating factors can serve as a basis for lengthening the period of exclusion. 42 C. F. R. § 1001.102(b).

Pursuant to 42 C. F. R. § 1001.2007, a person excluded under section 1128(a)(4) of the Act may file a request for hearing before an Administrative Law Judge.

III. Findings and Discussion

The findings of fact and conclusions of law noted below in italics are followed by a discussion of each finding.

A. Petitioner is a medical doctor who was convicted of a criminal offense relating to the manufacture, distribution, prescription, or dispensing of a controlled substance pursuant to section 1128(a)(4) of the Act.

Petitioner is a D.O., who is licensed to practice medicine in the State of Ohio. On January 22, 2003, a Grand Jury in Hamilton County, Ohio returned an eight- count indictment against Petitioner for deception to procure the dispensing of a schedule III controlled substance. I.G. Ex. 2. On August 26, 2003, Petitioner entered a guilty plea, and based on the Court's finding that Petitioner was drug dependent or in danger of becoming drug dependent, determined that rehabilitation would substantially reduce the likelihood of additional criminal activity. Pursuant to the State of Ohio's "Intervention in Lieu of Conviction" program, all proceedings were stayed and Petitioner was ordered to complete three years of rehabilitation. The Court stipulated, however, that failure to comply with the terms and conditions of community control would result in the imposition of an 11-month prison sentence for each of the eight counts of the indictment. I.G. Ex. 3.

Although Petitioner has not completed the three years of rehabilitation ordered by the court, he asserts having completed all requirements imposed by the judgment. P. Br. at 3. Petitioner represents that all charges have been dismissed and the record of the criminal proceedings have been expunged. However, Petitioner cannot offer documentary proof because the court's final entry granting dismissal has been sealed. Expungement of the record and dismissal of the proceedings occurred, according to Petitioner, by operation of Ohio State law after one year of successful treatment under the rehabilitation program. Id. at 2. Petitioner maintains that an exclusion cannot be sustained under Ohio's statutory scheme, because the court's finding of eligibility for intervention in lieu of conviction cannot be construed as a "conviction" as that term is defined in 42 U.S.C. § 1320a-7(i)(4). Id.

Petitioner further argues that exclusion in this case is barred by the Rehabilitation Act which prohibits federal agencies from discriminating against a "qualified individual with disability" on the basis of that person's disability pursuant to 29 U.S.C. § 794(a). P. Br. at 9. In this regard, Petitioner maintains that the sole basis for the I.G.'s exclusion actions was his disability.

The threshold question to be decided is whether Petitioner was convicted of a criminal offense relating to the manufacture, distribution, prescription, or dispensing of a controlled substance pursuant to section 1128(a)(4) of the Act. The Act provides that, for purposes of an exclusion under section 1128(a)(4), an individual is considered "convicted" of a criminal offense-

(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 or 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, section 1128(i).

In the case before me, Petitioner entered a plea of guilty to eight counts of deception to obtain dangerous drugs, and the court accepted such plea. I.G. Ex 3. Petitioner's argument, that his guilty plea should not be construed as a "conviction" under section 1128(i) because the plea was a technical requirement under Ohio law in order to be eligible for Intervention in Lieu of Conviction, is unavailing. P. Br. at 2. The Act does not provide for such an exception, and Petitioner has advanced no legal foundation for his novel contention. Nonetheless, I note that the presiding judge advised Petitioner that if he violated the terms and conditions of community control, the court would impose a prison sentence of 11 months for each count in the Department of Corrections. Of course, the underlying authority for the imposition of such sentence was the guilty plea entered by Petitioner. Thus, the requirement that Petitioner plead guilty as a condition precedent to participating in the Intervention in Lieu of Conviction program is not the hollow technicality Petitioner would have me believe. Rather, it is an essential element of the court's supervisory authority over Petitioner's conduct.

I also find that Petitioner must be deemed convicted under the broad language of section 1128(i) of the Act. Pursuant to that section, Petitioner is considered convicted "regardless of whether the judgment or conviction or other record relating to criminal conduct has been expunged." See Act, section 1128(i)(1) (emphasis added). When considering what constitutes a "conviction" for purposes of the I.G.'s exclusion authority, I must look to the federal statute, and not to state law or its interpretation. Thus, I am bound by the Act's emphasis on the determination of the individual's guilt, whether by admission, nolo contendere plea, or verdict, rather than the mechanism employed by the court to impose judgment. Those found guilty of a criminal offense relating to the manufacture, distribution, prescription, or dispensing of a controlled substance pursuant to section 1128(a)(4) of the Act cannot circumvent the federal exclusion provisions by availing themselves of creative sentencing procedures. The exclusion provision would be rendered meaningless if that were permitted.

Petitioner's additional argument, that the exclusion in this case is barred by the Rehabilitation Act which prohibits federal agencies from discriminating against a "qualified individual with a disability" on the basis of that person's disability, is also without merit. The legal basis for Petitioner's exclusion from all federal health care programs is his conviction of an offense relating to the manufacture, distribution, prescription, or dispensing of a controlled substance pursuant to section 1128(a)(4) of the Act. The basis for the exclusion was not his addiction. Although at the time of his conviction Petitioner was engaging in the illegal use of drugs, that was not the reason for the criminal charges brought against him, nor the reason for the I.G.'s exclusion action. The only action driven by his addiction was the State court's determination to allow him to participate in the "Intervention in Lieu of Conviction" program. ⁽²⁾ Moreover, the Rehabilitation Act , 29 U.S.C. § 701 et seq., does not protect a current drug user. However, once the drug user has gone through the rehabilitation process, he or she must still prove that he or she suffers from a significant limitation in performing a major life activity. Petitioner has made no such claim in this case. Fedorov v. Board of Regents for the University of Georgia, 194 F. Supp. 2d 1378, 1390 (2002); see also 29 U.S.C. § 705(20)(B).

Finally, Petitioner's reliance on the Rehabilitation Act must fail inasmuch as he has not shown that the exclusion provisions of the Act recognize the Rehabilitation Act as limiting mechanism to the I.G.'s exclusion authority. The purpose of section 1128 of the Act is to protect federally-funded health care programs, their recipients and beneficiaries from untrustworthy health care providers. See JoAnn Fletcher Cash, DAB No. 1725 (2000); Daniel Joseph Gormley, DAB CR850 (2001); Arlene Verizzo, R.Ph., DAB CR1138 (2004). Clearly, if Petitioner is a liability to the health care programs and those who benefit from them, the Rehabilitation Act cannot be asserted as a "safe haven" from the Act's exclusion provisions.

B. Petitioner's exclusion for a period of five years is the mandatory minimum period as a matter of law.

An exclusion under section 1128(a)(4) of the Act must be for a minimum mandatory period of five years. Act, section 1128(c)(3)(B). When the I.G. imposes an exclusion for the mandatory five-year period, the reasonableness of the length of the exclusion is not an issue. 42 C.F.R. § 1001.2007(a)(2).

IV. Conclusion

It is my determination that the I.G. was authorized to exclude Petitioner from participation in Medicare, Medicaid, and all federal health care programs. Sections 1128(a)(4) and 1128(c)(3)(B) of the Act mandate that Petitioner be excluded from participation for a period of at least five years because of his conviction of a criminal offense related to the unlawful manufacture, distribution, prescription, or dispensing of a controlled substance.

José A. Anglada

Administrative Law Judge

1. Petitioner erroneously labeled his exhibits as Exhibits A and B. I have re-labeled these as Exhibits 1 and 2.

2. That was an act of leniency on the part of the court prompted by Petitioner's addiction.