Rita Patel, DAB CR5085 (2018)

DECISION

Petitioner, Rita Patel, is a pharmacist in the State of New Jersey.  She pled guilty to attempted criminal sale of a prescription for a controlled substance in violation of N.Y. Penal Law §§ 110 and 220.65.  Based on this disposition of her criminal case, the Inspector General (I.G.) excluded Petitioner for five years from participating in Medicare, Medicaid, and all federal health care programs, as authorized by section 1128(a)(4) of the Social Security Act (Act).  Petitioner appeals the exclusion.  For the reasons discussed below, I find that the I.G. properly excluded Petitioner Patel and that the statute mandates a minimum five-year exclusion.

I. Background

In a letter dated September 29, 2017, the I.G. notified Petitioner that she was excluded from participating in Medicare, Medicaid, and all federal health care programs for a period of five years because she had been convicted of a felony offense related to the unlawful manufacture, distribution, prescription, or dispensing of a controlled substance

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as defined under Federal or State law.  The letter explained that section 1128(a)(4) of the Act authorizes the exclusion.  I.G. Exhibit (Ex.) 1.

Petitioner timely requested a hearing before an administrative law judge.

Each party submitted a written argument (I.G. Br.; P. Br.) and the I.G. submitted a reply (I.G. Reply).  The I.G. submitted four proposed exhibits (I.G. Exs. 1-4).  Petitioner submitted six proposed exhibits (P. Exs. A-F).  Neither party objected to the exhibits offered by its party-opponent.  Therefore, in the absence of objections, I admit into evidence I.G. Exs. 1-4 and P. Exs. A-F.

Petitioner requests an in-person hearing for the purpose of offering her own testimony.  P. Br. at 2.  My December 21, 2017 Order and Schedule for Filing Briefs and Documentary Evidence (Pre-hearing Order) required each party to submit the written direct testimony of any proposed witness in the form of an exhibit, along with the party’s brief and other proposed exhibits.  Pre-hearing Order, § 7(c)(ii).  The Pre-hearing Order further explained that I would not convene an in-person hearing unless a party asks to cross-examine a witness for whom the opposing party has provided written direct testimony and I determine that the proposed testimony is relevant and non-cumulative.  Pre-hearing Order, § 9.

Petitioner submitted numerous proposed exhibits, but none contained her written direct testimony.  See P. Exs. A-F.  Moreover, even if I were to construe the arguments described in Petitioner’s brief as her proffered written direct testimony, the I.G. did not request to cross-examine Petitioner and, indeed, argues that an in-person hearing is not necessary.  See I.G. Br. at 5; I.G. Reply at 2-3.  Furthermore, Petitioner’s proposed testimony is irrelevant to any issue I may hear and decide.  Petitioner’s testimony appears intended to cast doubt on whether she engaged in the conduct for which she was convicted and to support her argument that the length of the exclusion is inappropriate.  See P. Br. at 3-4.  Under the applicable regulations, both issues are irrelevant as a matter of law.  See 42 C.F.R. § 1001.2007(a)(2), (d).  See also 42 C.F.R. § 1001.2002(b).  Therefore, with no proffer of relevant testimony and in the absence of any request to cross-examine a witness, I decide this case based on the parties’ written submissions.  See Pre-hearing Order, § 9.

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II. Discussion

A. Petitioner must be excluded from program participation for a minimum of five years because she was convicted of a felony criminal offense related to the unlawful prescription of a controlled substance within the meaning of section 1128(a)(4) of the Act.1

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).

Petitioner is a pharmacist who worked at Shayona Pharmacy in Perth Amboy, New Jersey.  I.G. Ex. 2 at 2; P. Br. at 3.  On or about December 16, 2013, a grand jury indicted Petitioner with conspiracy to commit a criminal sale of a prescription for a controlled substance in violation of N.Y. Penal Law § 105.10-1, a class E felony; and two counts of criminal sale of a prescription for a controlled substance by a practitioner or pharmacist in violation of N.Y. Penal Law § 220.65, class C felonies.  I.G. Ex. 2 at 1, 13-14; I.G. Ex. 4 at 1.  The grand jury detailed Petitioner’s role in an extensive scheme to sell prescriptions “for oxycodone based upon perfunctory or nonexistent treatment” by Petitioner’s co-conspirator.  I.G. Ex. 2 at 1.  Specifically, “it was . . . part of the conspiracy for [Petitioner’s co-conspirator] to direct patients to use [Petitioner] of the Shayona Pharmacy . . . to fill their prescriptions.”  I.G. Ex. 2 at 2.  Petitioner “fill[ed] prescriptions for oxycodone issued by [her co-conspirator],” and she directed him “to issue oxycodone prescriptions to patients based upon their insurance coverage so as to maximize the profit of the conspiracy.”  Id.  Further, she “instruct[ed] [her co-conspirator] how to prescribe oxycodone to avoid detection by law enforcement . . . [and] charged [her co-conspirator’s] patients more than their insurance copayment to fill their oxycodone prescriptions.”  Id.

On November 2, 2016, the Supreme Court of New York, County of Richmond (State Court) accepted Petitioner’s guilty plea to attempted criminal sale of a prescription for a controlled substance by a practitioner or pharmacist.  I.G. Ex. 3 at 29.  Specifically, Petitioner pled guilty to count 2 of the indictment as an attempt.  I.G. Ex. 3 at 20, 22-24.  In so doing, she admitted that “on or about June 15th of 2012, that [she,] a pharmacist[,] . . .  knowingly and unlawfully attempted to sell a prescription for a controlled substance, namely, Oxycodone . . . and [she] did so other than in good faith in the course of [her] professional practice.”  I.G. Ex. 3 at 27.  The State Court sentenced her to time served.  I.G. Ex. 3 at 45.

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Petitioner’s conviction was plainly related to the unlawful prescription and dispensing of a controlled substance.  She pled guilty to attempted criminal sale of a prescription for a controlled substance in violation of N.Y. Penal Law §§ 110 and 220.65.  I.G. Ex. 3 at 44.  The elements of Petitioner’s offense are that Petitioner “with intent to commit a crime . . . engage[d] in conduct which tends to effect the commission of such crime,” to wit, “knowingly and unlawfully [selling] a prescription for a controlled substance.”  N.Y. Penal Law §§ 110; 220.65.  Attempted criminal sale of a prescription for a controlled substance is a class D felony under New York law.  I.G. Ex. 3 at 7, 44; see N.Y. Penal Law §§ 110.05(5); 220.65.

Petitioner concedes that she was convicted of a felony criminal offense.  P. Br. at 1.  However, she denies that her conviction was related to the unlawful manufacture, distribution, prescription, or dispensing of a controlled substance.  P. Br. at 2, 3-4.  While admitting that she pled “guilty to attempted criminal sale of a prescription drug,” P. Br. at 3, Petitioner argues that “the facts in [the] matter weighed against her guilt” because the prescription was “seemingly valid,” another pharmacist filled it, “the filling pharmacist exercised her independent professional judgment,” and “there is no evidence [Petitioner] knew that the underlying prescription was fraudulent.”  P. Br. at 3.

Petitioner’s arguments are not a basis to set aside her exclusion.  The regulations provide that when appealing an exclusion, an excluded party may not collaterally attack the conviction or civil judgment underlying the exclusion:

When the exclusion is based on the existence of a criminal conviction . . . by Federal, State or local court . . .  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).  Petitioner’s conviction is a “prior determination where the facts were adjudicated and a final decision was made” within the meaning of 42 C.F.R. § 1001.2007(d).  Therefore, she may not attack her conviction in this forum and her argument that she did not, in fact, engage in the criminal conduct to which she pled guilty is precluded.  Her conviction, on its face, relates to the unlawful prescription of a controlled substance.  See Shaikh M. Hasan, M.D., DAB No. 2648 at 4-5 (2015) (leaving undisturbed the administrative law judge’s finding that a conviction of N.Y. Penal Law § 220.65 mandates exclusion pursuant to section 1128(a)(4)).

Petitioner also argues that she has had a long, distinguished career as a pharmacist.  P. Br. at 3-4.  She asserts that her criminal conduct was not indicative of her career.  P. Br. at 3.  She notes that she has paid a very high financial cost, and her family, who rely on her for support, would suffer as a result of her exclusion.  P. Br. at 4.  These arguments are

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essentially equitable.  However, equitable considerations are not a basis to overturn Petitioner’s exclusion.  I may not “review the I.G.’s decision to impose an exclusion . . . on the ground that the excluded person is a good person or well-thought of in the profession or suffering from the loss of his/her vocation.”  Donna Rogers, DAB No. 2381 at 6 (2011); see also Stefan Murza, D.C., DAB No. 2848 at 4 (2018).  To the extent that Petitioner argues certain mitigating factors weigh against her exclusion (P. Br. at 4), I cannot consider mitigating factors in this case because the I.G. has imposed the minimum period of exclusion required by law.  42 C.F.R. §§ 1001.2007(a)(2); 1001.102(a), (c).

Because Petitioner was convicted of a felony offense that is explicitly related to the unlawful prescription of a controlled substance, section 1128(a)(4) of the Act requires that she be excluded for not less than five years.  Neither the I.G. nor an administrative law judge has discretion to decline to exclude Petitioner.  Further, as discussed below, an administrative law judge similarly lacks authority to alter the effective date of an exclusion.

B. Petitioner’s exclusion is effective October 19, 2017, 20 days from the date of the I.G.’s notice of exclusion.

Petitioner argues that the effective date of her exclusion should be made retroactive to either November 2, 2016, the date of her conviction, or December 1, 2016, the date that her counsel notified the I.G. of her conviction via letter and argued that exclusion was not warranted.  P. Br. at 4-6; see P. Ex. A at 1-2.  Petitioner also argues that because her conviction occurred on November 2, 2016, she was effectively excluded as of that date due to her “inability to process prescriptions for Federal healthcare programs” as of November 2, 2016.  P. Br. at 4.  As a result, she argues, her period of exclusion “would effectively extend . . . by an additional year,” if it were to take effect as the regulation requires, due to the I.G.’s failure, in her view, to promptly exclude her.  P. Br. at 5.

Appellate panels of the Departmental Appeals Board (DAB) have long rejected arguments such as Petitioner’s.  Where, as here, the I.G. imposes an exclusion for the mandatory minimum period of five years pursuant to section 1128(a) of the Act, my review is strictly limited to the issue of whether there is a basis for exclusion.  42 C.F.R. § 1001.2007(a)(1)-(2).  For that reason, in interpreting section 1001.2002(b), DAB appellate panels have held that neither they nor administrative law judges of the Civil Remedies Division have authority to change the effective date of an exclusion imposed by the Inspector General.  See, e.g., Shaikh M. Hasan, M.D., DAB No. 2648 at 7-13 (and cases cited therein).

Accordingly, as required by regulation, “[t]he exclusion will be effective 20 days from the date of the notice.”  42 C.F.R. § 1001.2002(b).

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III. Conclusion

For the reasons explained above, I conclude that the I.G. properly excluded Petitioner from participation in Medicare, Medicaid and all federal health care programs, and I sustain the five-year exclusion effective October 19, 2017.