Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD
Civil Remedies Division
(OI File No. H-19-42309-9),
The Inspector General,
Docket No. C-20-697
Decision No. CR5870
The Inspector General of the U.S. Department of Health and Human Services excluded Petitioner Rishi Ramdial (Petitioner) from participation in Medicare, Medicaid, and all other federal health care programs for 10 years pursuant to Section 1128(a)(4) of the Social Security Act (Act) (42 U.S.C. § 1320a-7(a)(4)). Petitioner challenges the exclusion. For the reasons stated below, it is concluded that the Inspector General (IG) had a basis for excluding Petitioner from program participation and that the 10-year exclusion period is not unreasonable. The IG’s exclusion determination is affirmed.
I. Background and Procedural History
On June 30, 2020, the IG of the U.S. Department of Health and Human Services notified Petitioner Ramdial of his exclusion from participation in Medicare, Medicaid, and all federal healthcare programs under section 1128(a)(4) of the Social Security Act (Act) for a minimum of 10 years. 42 U.S.C. § 1320a-7(a)(4). The exclusion is due to Petitioner’s
felony convictions in the Circuit Court of the Fifteenth Judicial Circuit in and for Palm Beach County, State of Florida (State Court) for criminal offenses related to the unlawful manufacture, distribution, prescription, or dispensing of a controlled substance. IG Exhibit (Ex.) 1.
On August 7, 2020, Petitioner timely sought a hearing before an administrative law judge. On August 14, 2020, at Judge Leslie Weyn’s direction, the Civil Remedies Division (CRD) issued an acknowledgement letter, along with CRD Procedures and a non-discrimination notice. A prehearing conference was scheduled for October 6, 2020.
On September 4, 2020, Petitioner requested a waiver from using the Departmental Appeals Board electronic filing system due to his incarceration. Petitioner’s request was granted on September 8, 2020.
A prehearing conference was held by telephone on October 6, 2020. At the conference, Petitioner requested a continuance because he needed additional time to obtain counsel. The request was granted, and a second prehearing conference was scheduled for December 1, 2020.
On October 20, 2020, Petitioner filed a motion to stay the proceedings due to his current incarceration. Following the December 1, 2020 prehearing conference, Judge Weyn issued an Order and Schedule for Filing Briefs and Documentary Evidence on December 4, 2020. In that Order, Judge Weyn summarized the substance of the prehearing conference, set a briefing schedule, and denied Petitioner’s motion to stay the proceedings.
On January 4, 2021, the IG submitted a brief and nine proposed exhibits. On March 26, 2021, Petitioner submitted a brief with five proposed exhibits and objections to IG’s Exs. 5-9. The IG submitted a reply brief on March 23, 2021.
This case was transferred from Judge Weyn to Judge Tannisha Bell on April 14, 2021. Petitioner filed a final argument on April 28, 2021, renewing his objection to the exclusion and to the IG’s proposed exhibits.
II. Admission of Exhibits and Decision on the Record
The parties agree that an in-person hearing is not necessary to resolve this matter. IG Br. at 7; P. Br. at 5. As such, this matter will be decided on the written record.
Petitioner submitted a brief along with five exhibits. The IG did not object to Petitioner’s exhibits, so all will be admitted into evidence.
The IG submitted a brief, nine exhibits, and a reply. Petitioner noted his objections to IG’s exhibits 5-9 because they contain information on the underlying offense. P. Br. at 1. Petitioner misinterprets 42 C.F.R. § 1001.2007(d). The regulation is meant to prohibit attacks on the validity of a conviction, civil judgment, or decision by another court or agency. Parties are permitted to submit evidence on the events that caused the exclusion. As such, Petitioner’s objection is overruled, and IG exhibits 1-9 will be admitted.
The issue is whether the IG has a basis to exclude Petitioner from participation in Medicaid, Medicare, and any federal healthcare programs and, if so, whether the imposed 10-year exclusion imposed by the IG is reasonable.
Jurisdiction is provided under 42 C.F.R. §§ 1001.2007(a)(1)-(2), 1005.2(a); see also 42 U.S.C. § 1320a-7(f)(1).
V. Findings of Fact
Petitioner was a registered pharmacy technician in the State of Florida working at Humana Pharmacy. IG Ex. 5. On or about May 7, 2018, a pharmacist at Humana Pharmacy contacted law enforcement to report approximately 1,600 missing narcotic pills. IG Ex. 5. The pharmacist noted that Petitioner was working on the day of the incident and sent a text saying that he was sick and would not be returning to work after his lunch break. The missing pills included hydromorphone, oxycodone, fentanyl, and alprazolam. IG Ex. 5. On May 25, 2018, Petitioner returned to Humana Pharmacy. Though he was not permitted to be in the pharmacy area, Petitioner forced himself into the pharmacy, assaulted an employee, and snatched a cell phone to stop another employee from calling the police. IG Ex. 6. Once inside the pharmacy area, Petitioner indicated that he needed to get to the control cabinet where the scheduled narcotics were stored. IG Ex. 6. The Palm Beach Sheriff’s Office investigated both incidents and concluded that Petitioner pilfered the narcotics from his employer with the intent to sell. The State of Florida charged Petitioner with numerous felony offenses related to the theft of the narcotics and the assault on the pharmacy employees. IG Exs. 7, 8.
On November 18, 2019, Petitioner entered a guilty plea and was convicted of the following charges: trafficking in hydrocodone, trafficking in oxycodone, attempted trafficking of hydrocodone, possession of Schedule IV substance, possession of fentanyl, and grand theft. IG Ex. 2. In a separate case, Petitioner pleaded guilty to, and was convicted of, burglary with assault or battery, false imprisonment, and robbery by sudden snatching. IG Exs. 2, 4. The proceedings took place in the Circuit Court of the Fifteenth Judicial Circuit in and for Palm Beach County, State of Florida. Petitioner was sentenced
to five years at the Department of Corrections with credit for 466 days of incarceration. The State Court also ordered Petitioner to pay $106,108 in fines and costs. IG Ex. 2. Petitioner is currently incarcerated for those convictions.
On March 6, 2019, the State of Florida Board of Pharmacy revoked Petitioner’s pharmacy technician license based on the Petitioner’s felony convictions. IG Ex. 9.
VI. Analysis and Conclusions of Law
A. Basis for the Exclusion
The Secretary of the U.S. Department of Health and Human Services shall exclude an individual from participation in Medicare, Medicaid, and all other federally funded health care programs if that individual:
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.
42 U.S.C. § 1320a-7(a)(4).
On November 18, 2019, Petitioner was adjudicated guilty for 11 felony criminal offenses relating to the trafficking in of controlled substances, including oxycodone, hydrocodone, and fentanyl. IG Ex. 4.
Petitioner argues that he was adjudicated guilty, but not convicted of the 11 felony crimes. P. Br. at 3; P. Ex. 3. Petitioner also argues that the underlying conviction is not valid because the judge’s signature is not present on the plea agreement and that there was no evidence to support the underlying charges. P. Br. at 3; P. Ex. 1; IG Ex. 2. Petitioner cites Winston vs. Mediafare Entm’t Corp., 777 F.2d 78 (2d Cir. 1986) to support his argument that the conviction is not valid. P. Ex 3.
Section 1128(i) of the Act provides that an individual is convicted of a criminal offense when: 1) a judgment of conviction has been entered against him or her in a federal, state, or local court, whether an appeal is pending or the record of the conviction is expunged; 2) there is a finding of guilt by a court; 3) a plea of guilty or no contest is accepted by a court; or 4) the individual has entered into any arrangement or program where judgment of conviction is withheld. 42 U.S.C. § 1320a-7(i). The State Court accepted Petitioner’s guilty plea on November 18, 2019 and sentenced him to five years of incarceration. The record shows that Petitioner has been convicted of several felonies related to the unlawful
manufacture, distribution, prescription, or dispensing of a controlled substance. IG. Exs. 2, 4. The details of Petitioner’s convictions and sentence are outlined in a signed judgment issued by the State Court, and Petitioner is currently incarcerated due to those convictions. IG Ex. 4. Additionally, Petitioner’s argument constitutes a collateral attack on the underlying convictions, which is prohibited by the regulations.
When the exclusion is based on the existence of a . . . determination by another Government agency, or any other prior determination where the facts were adjudicated and a final decision was made, the basis for the underlying . . . determination 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); Marvin L. Gibbs, Jr., M.D., DAB No. 2279 at 8-10 (2009); Roy Cosby Stark, DAB No. 1746 (2000).
The IG has provided sufficient, relevant evidence to prove that Petitioner was convicted of a crime, related to the unlawful manufacture, distribution, prescription, or dispensing of a controlled substance that occurred after August 21, 1996. As such, the IG has met its burden of proof and there is a clear basis for the exclusion.
B. Length of the Exclusion
Now that a basis for the exclusion has been established, it is necessary to address the reasonableness of the length of the exclusion. Under 42 C.F.R. § 1001.102, five years is the mandatory minimum for exclusions. However, the regulations provide that the IG may impose a longer period of exclusion if aggravating factors are met. 42 C.F.R. § 1001.102. Here, the IG relies on two aggravating factors to impose a 10-year exclusion: 1) Petitioner’s sentence included incarceration; and 2) Petitioner was subject to an adverse action by the Florida Board of Pharmacy. IG Br. 5.
The IG has broad discretion in determining the length of an exclusion, based on the IG's "vast experience" in implementing exclusions. Craig Richard Wilder, DAB No. 2416 at 8 (2011) (citing 57 Fed. Reg. 3298, 3321 (Jan. 29, 1992)). The regulations provide that the IG’s proposed exclusion must be upheld as long as the length of exclusion is not unreasonable. Petitioner was sentenced to five years of incarceration, with credit for 466 days of time served prior to the conviction. In addition, the State of Florida Board of Pharmacy revoked Petitioner’s license to practice as a registered pharmacy technician. As such, the IG has proven that aggravating factors exist and a 10-year exclusion is reasonable.
Petitioner argues that the revocation of his pharmacy technician license should not be considered because the revocation hearing took place without his knowledge while he was incarcerated, and the notice was sent to an old address. Those are issues to be addressed with the Florida Board of Pharmacy. For the purposes of this matter, Petitioner’s license has been revoked and the IG rightfully considered it as an aggravating factor.
C. Mitigating Factors
Petitioner states that there was no financial loss to Medicare, Medicaid, or any federal healthcare program due to his actions and this should be considered a mitigating factor. Under 42 C.F.R. § 1001.102 (c)(1), less than $5,000 in financial loss may be a mitigating factor for a person or entity charged under § 1001.101(a). In this case, Petitioner was charged under 42 C.F.R. § 1001.101(d). There are no mitigating factors to consider in this matter.
The IG properly excluded Petitioner from participating in Medicare, Medicaid, and other federal health care programs. The 10-year exclusion is reasonable based upon the circumstances of this case.
Tannisha D. Bell Administrative Law Judge