Matthew Alexander Camera, DAB CR6264 (2023)

DECISION

I sustain the determination of the Inspector General (IG) to exclude Petitioner, Matthew Alexander Camera, from participating in Medicare, Medicaid, and other federally funded healthcare programs for a minimum period of eight years.

I. Background

Neither the IG nor Petitioner requested an in-person hearing. Consequently, I decide this case based on the parties’ written exchanges.

The IG filed a brief, a reply brief, and four exhibits, identified as IG Ex. 1 - IG Ex. 4.  Petitioner filed a brief and five exhibits, identified as P. Ex. 1 - P. Ex. 5.  Neither party objected to my receiving exhibits.  I receive IG Ex. 1 - IG Ex. 4 and P. Ex. 1 - P. Ex. 5 into evidence.

II. Issues, Findings of Fact and Conclusions of Law

A. Issues

The issues are whether the IG must exclude Petitioner and whether an eight-year exclusion is reasonable.

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B. Findings of Fact and Conclusions of Law

The IG excluded Petitioner pursuant to section 1128(a)(3) of the Social Security Act.  This section mandates the exclusion of any individual convicted of a crime occurring after August 21, 1996, that is related to fraud, theft, embezzlement, breach of fiduciary responsibility, or other financial misconduct in connection with the delivery of a health care item or service.

There is no dispute that Petitioner was convicted of a section 1128(a)(3) crime.  Petitioner, a pharmacist, was the Pharmacy Chief at the Veterans Affairs Hospital in Erie, Pennsylvania.  IG Ex. 2.  On November 12, 2021, Petitioner pled guilty to obtaining controlled substances, including hydrocodone and oxycodone, from the hospital’s pharmacy by misrepresentation, fraud, deception, and subterfuge, in violation of federal law.  Id.; IG Ex. 3.  Petitioner admitted that he stole pills from bottles that had been filled for patients.  P. Ex. 4 at 4.  He further admitted that his crime transpired over a period of more than three years - from January 2017 to around June 2020.  IG Ex. 3.

Petitioner’s crime constituted theft and fraud committed in connection with a health care item or service (medication prescribed to Veterans’ Affairs patients).  That crime fits squarely within the elements of a section 1128(a)(3) crime.

Conviction of a crime falling under the purview of section 1128(a)(3) mandates an exclusion of a minimum of five years.  Act § 1128(c)(3)(B).  In this case the IG opted to exclude Petitioner for a minimum of eight years.  Petitioner challenges this determination.

My authority is limited when deciding the reasonableness of the length of exclusion.  I may not second-guess the IG, nor may I substitute my judgment for that of the IG.  Juan de Leon Jr., DAB No. 2533 at 5 (2013); Craig Richard Wilder, DAB No. 2416 at 8 (2011). Rather, I must decide whether an exclusion falls within a reasonable range, based on evidence relating to defined regulatory factors.  42 C.F.R. § 1001.102(b), (c); 57 Fed. Reg. 3298, 3321 (Jan. 29, 1992).

The regulation governing exclusions for more than the statutory minimum period sets forth both aggravating and mitigating factors that may be considered.  42 C.F.R. § 1001.102(b), (c).  These factors function as rules of evidence.  As is the case with rules of evidence, the factors describe what is relevant to deciding the length of an exclusion.  They do not state a formula for deciding what length of exclusion is appropriate.  Instead, they operate as guidelines when considering evidence that is relevant to the question of what is needed to protect federally-financed healthcare programs, program beneficiaries and recipients from individuals who have been determined to be untrustworthy to provide care or to deal with program assets.

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Here, the IG cites evidence relating to a single factor described at 42 C.F.R. § 1001.102(b)(2) as justifying the eight-year minimum exclusion imposed against Petitioner.  The applicable factor cites crimes that are perpetrated over a period of more than a year as a basis for imposing a greater-than-minimum exclusion.  The IG relies on Petitioner’s guilty plea to crimes that he committed during a period that lasted more than three years.  IG Ex. 2; IG Ex. 3. 

I find that the protracted length of Petitioner’s crimes justifies the IG’s determination to exclude him for at least eight years.  Petitioner pled guilty to perpetrating a lengthy and systematic fraud.  That is evidence of sufficient untrustworthiness to warrant more than a minimum exclusion period.  In examining the exclusion length, I cannot say that the IG’s determination is unreasonable.  As I have stated, I may not second-guess that determination nor substitute my judgment for it.

In challenging the IG’s determination, Petitioner contends that the duration of his crime was for less than a year.  As support for this assertion, Petitioner relies on a letter signed by his former attorney.  The attorney avers that Petitioner told him that his criminal conduct transpired only during calendar year 2020.  P. Ex. 1.

Effectively, Petitioner now seeks to retract that part of his guilty plea in which he admitted criminal conduct occurring over a period of more than three years.  This obviously self-serving assertion is not relevant.  An individual who is excluded based on a conviction of a crime may not challenge that conviction collaterally in an administrative hearing to decide either the basis for, or the reasonableness of, an exclusion determination.  42 C.F.R. § 1001.2007(d).

Petitioner asserts also that there is evidence conforming to a mitigating factor that justifies reduction of the length of his exclusion.  The factor cited by Petitioner is 42 C.F.R. § 1001.102(c)(2).  It provides that:

The record in the criminal proceedings, including sentencing documents, demonstrates that the [sentencing] court determined that the individual had a mental, emotional, or physical condition before or during the commission of the offense that reduced the individual’s culpability.

Petitioner asserts that the sentencing judge acknowledged that Petitioner had a substance abuse disorder that reduced his culpability. 

Proof of reduced culpability means that there is evidence showing that a convicted individual’s responsibility for the crime that he or she committed is somehow reduced or diminished by some exceptional factor in that individual’s case.  The requirement is not satisfied by evidence that simply explains the convicted individual’s motive for

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committing a crime.  Every individual who commits a crime does so for a reason.  Thus, an individual’s substance abuse disorder might explain why he or she misappropriated controlled substances.  But that explanation doesn’t diminish that person’s responsibility for the crime that he or she commits.

There is no question that Petitioner had a substance abuse disorder and that the sentencing judge was aware of that disorder.  The judge imposed a sentence that was for less than the recommended sentencing guideline, citing, among other things as reasons for the downward variation, that Petitioner was drug or alcohol dependent.  P. Ex. 3 at 3.  However, the judge did not find that Petitioner’s substance abuse disorder reduced his culpability.  For example, the judge did not cite diminished capacity as a reason for the sentence.  Id.

Finally, Petitioner cites to evidence that Petitioner has worked to rehabilitate himself.  P. Ex. 5.  That evidence does not fall under any of the mitigating factors that are identified at 42 C.F.R. § 1001.102(c).  Therefore, it is not relevant to my decision.