Adeniyi Adepoju, DAB CR6587 (2024)

DECISION

Petitioner, Adeniyi Adepoju, is excluded from participation in Medicare, Medicaid, and all federal health care programs pursuant to section 1128(a)(4) of the Social Security Act (Act) (42 U.S.C. § 1320a-7(a)(4)), effective May 20, 2024.  Petitioner’s exclusion for the minimum period of five years is required by section 1128(c)(3)(B) of the Act (42 U.S.C. § 1320a‑7(c)(3)(B)).1

Page 2

I.     Background

The Inspector General (IG) notified Petitioner by letter dated April 30, 2024, that he2 was excluded from participation in Medicare, Medicaid, and all federal health care programs.  The IG cited section 1128(a)(4) of the Act as the basis for Petitioner’s exclusion based on his conviction in the United States District Court, Eastern District of Michigan (district court), of a criminal offense related to the unlawful manufacture, distribution, prescription, or dispensing of a controlled substance.  The IG’s notice further advised Petitioner that the mandatory five-year exclusion was extended to seven years because of the existence of one aggravating factor, specifically, that the acts that resulted in Petitioner’s conviction were committed over a period of one year or more.  IG Exhibit (Ex.) 5 at 1; Petitioner’s Exhibit (P. Ex.) 5 at 1.  But on August 27, 2024, the IG amended the prior exclusion notice because the IG determined that the aggravating factor did not in fact apply.  The IG advised Petitioner that he was excluded for the minimum statutory period of five years.  IG Ex. 1 at 1; P. Ex. 7. 

On July 3, 2024, Petitioner timely filed a request for hearing (RFH).  This case was docketed and assigned to me on July 17, 2024.  A prehearing conference was convened on August 15, 2024.  The substance of the conference is memorialized in my Prehearing Conference Order and Schedule for Filing Briefs and Documentary Evidence dated August 15, 2024 (Prehearing Order). 

The IG filed a motion for summary judgment and supporting brief (IG Br.) on September 9, 2024, with IG Exhibits 1 through 5.  Petitioner filed a response in opposition to the IG motion for summary judgment (P. Br.) on October 17, 2024, with Petitioner’s exhibits (P. Exs.) 1 through 7.  The IG filed a reply brief on October 24, 2024. 

No objections were made to my consideration of the offered exhibits.  I must exclude irrelevant or immaterial evidence.  42 C.F.R. § 1005.17(c).  An administrative law judge (ALJ) determines the admissibility of evidence and is not bound by the Federal Rules of Evidence but refers to them as appropriate.  42 C.F.R. § 1005.17(a)-(b).  Under the Federal Rules of Evidence, the test for whether evidence is relevant is whether the evidence has “any tendency to make a fact more or less probable than it would be without the evidence”; and “the fact is of consequence in determining the action.”  Fed. R. Evid. 401.  The only issue before me is whether there is a basis to exclude Petitioner.  The reasonableness of the period of exclusion – the minimum period authorized by Congress – is not at issue before me.  42 C.F.R. § 1001.2007(a)(1), (2).  The elements that trigger exclusion under section 1128(a)(4) of the Act are whether:  Petitioner was convicted of a

Page 3

felony criminal offense under federal or state law; the offense occurred after August 21, 1996; and the offense is related to the unlawful manufacture, distribution, prescription, or dispensing of a controlled substance.  Act § 1128(a)(4); 42 C.F.R. § 1001.101(d). 

IG Exhibits 1 through 5 contain evidence relevant to the determination of whether the elements necessary for exclusion of Petitioner under section 1128(a)(4) of the Act are satisfied.  Those exhibits are therefore relevant within the meaning of Fed. R. Evid. 401, and the exhibits are admitted and considered as evidence.3  Petitioner Exhibits 1 through 7 are relevant and admitted. 

II.     Discussion

A.  Applicable Law

Section 1128(f) of the Act (42 U.S.C. § 1320a-7(f)) establishes Petitioner’s right to a hearing by an ALJ and judicial review of the final action of the Secretary of Health and Human Services (the Secretary). 

Pursuant to section 1128(a)(4) of the Act, the Secretary must exclude from participation in any federal health care program any individual convicted of a felony criminal offense under federal or state law, that occurred after August 21, 1996, related to the unlawful manufacture, distribution, prescription, or dispensing of a controlled substance.  Act § 1128(a)(4).  The Secretary has promulgated regulations implementing this provision of the Act.  42 C.F.R. § 1001.101(d). 

Pursuant to section 1128(i) of the Act (42 U.S.C. § 1320a-7(i)), 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. 

Section 1128(c)(3)(B) of the Act provides that an exclusion imposed under section 1128(a) of the Act will be for a period of not less than five years.  42 C.F.R. § 1001.102(a).  The Secretary has published regulations that establish aggravating factors that the IG may consider to extend the period of exclusion beyond the minimum five-year period, as well as mitigating factors that may be considered only if the minimum five‑year period is extended.  42 C.F.R. § 1001.102(b), (c).  The IG imposed the

Page 4

minimum authorized five-year exclusion and aggravating and mitigating factors are not relevant in this case.  IG Ex. 1 at 1; IG Ex. 5 at 1. 

The standard of proof is a preponderance of the evidence.  42 C.F.R. § 1001.2007(c).  Petitioner bears the burden of proof and the burden of persuasion on any affirmative defenses or mitigating factors, and the IG bears the burden on all other issues.  42 C.F.R. § 1005.15(c); Prehearing Order ¶ 4.  There may be no collateral attack of the conviction that is the basis for the exclusion.  42 C.F.R. § 1001.2007(d). 

B.  Issue

The issue in this case is: 

Whether there is a basis for exclusion. 

42 C.F.R. § 1001.2007(a)(1). 

When, as in this case, the IG imposes the minimum authorized five-year exclusion under section 1128(a) of the Act, there is no issue as to whether the period of exclusion is unreasonable.  42 C.F.R. § 1001.2007(a)(2). 

C. Findings of Fact, Conclusions of Law, and Analysis

My conclusions of law are set forth in bold followed by the pertinent findings of fact and analysis. 

1. Petitioner’s request for hearing was timely and I have jurisdiction.
2. Summary judgment is appropriate.

There is no dispute that Petitioner’s request for hearing was timely, and I have jurisdiction pursuant to section 1128(f) of the Act and 42 C.F.R. pt. 1005. 

Pursuant to section 1128(f) of the Act, a person subject to exclusion has a right to reasonable notice and an opportunity for a hearing.  The Secretary has provided by regulation that a sanctioned party has the right to a hearing before an ALJ and both the sanctioned party and the IG have a right to participate in the hearing.  42 C.F.R. §§ 1005.2-.3.  Either or both parties may choose to waive appearance at an oral hearing and to submit only documentary evidence and written argument for my consideration.  42 C.F.R. § 1005.6(b)(5). 

An ALJ may also resolve a case, in whole or in part, by summary judgment.  42 C.F.R. § 1005.4(b)(12).  Summary judgment is appropriate, and no hearing is required, where

Page 5

either:  there are no genuine disputes of material fact and the only questions that must be decided involve application of law to the undisputed facts; or the moving party prevails as a matter of law even if all disputed facts are resolved in favor of the party against whom the motion is made.  A party opposing summary judgment must allege facts which, if true, would refute the facts relied upon by the moving party.  See, e.g., Fed. R. Civ. P. 56(c); Garden City Med. Clinic, DAB No. 1763 (2001); Everett Rehab. & Med. Ctr., DAB No. 1628 at 3 (1997) (holding in-person hearing is required where the non-movant shows there are material facts in dispute that require testimony); Thelma Walley, DAB No. 1367 (1992). 

The IG moved for summary judgment.  Petitioner does not dispute that he was convicted of a felony offense that meets the elements for a mandatory exclusion pursuant to section 1128(a)(4) of the Act.  P. Br. at 1-3.  Petitioner’s arguments must be resolved against him as a matter of law.  There are no genuine disputes of material fact in this case, and the case can be resolved by applying the law to the undisputed facts.  Accordingly, summary judgment is appropriate. 

3. There is a basis for Petitioner’s exclusion pursuant to section 1128(a)(4) of the Act.
   1. Undisputed Facts

On May 12, 2021, Petitioner was charged by a superseding indictment, with multiple co-defendants, of one count of conspiring with others from about September 2017 to on or about June 2020, to knowingly, intentionally, and unlawfully possess with intent to distribute and to distribute controlled substances, including but not limited to oxycodone, oxymorphone, oxycodone-acetaminophen, hydrocodone, hydrocodone-acetaminophen and promethazine with codeine, in violation of 21 U.S.C. §§ 841(a)(1) and 846.  P. Ex. 2 at 8-9 (count 1). 

On October 21, 2021, Petitioner agreed to plead guilty to count 1 of the superseding indictment that alleged conspiracy in exchange for the dismissal of other charges.  IG Ex. 3 at 1; P. Ex. 3 at 1.  Petitioner agreed as part of the plea agreement that he engaged in a conspiracy from about November 2019 to about June 2020, to possess with the intent to distribute and to distribute, among other drugs, oxycodone HCL and oxymorphone HCL.  IG Ex. 3 at 5-7; P. Ex. 3 at 5-7.  Petitioner also agreed he dispensed medically unnecessary prescriptions as a pharmacist with the full knowledge that the prescriptions should not have been filled.  IG Ex. 3 at 6. 

On December 19, 2023, the district court accepted Petitioner’s guilty plea to count 1 of the superseding indictment and entered judgment finding Petitioner guilty of the offense.  Although not relevant to resolving the issue before me, I note that Petitioner was

Page 6

sentenced by the district court to one day of confinement with three years of supervised release.  IG Ex. 4 at 1-3; P. Ex. 4 at 1-3; P. Br. at 3; P. Ex. 6 at 1. 

On April 30, 2024, the IG notified Petitioner that he was excluded from participation in Medicare, Medicaid, and all federal health care programs pursuant to section 1128(a)(4) of the Act for seven years.  IG Ex. 5 at 1; P. Ex. 5 at 1.  On August 27, 2024, the IG issued an amended notice in which the IG advised Petitioner that he was excluded for the minimum statutory period of five years.  IG Ex. 1 at 1; P. Ex. 7. 

2. Analysis

Section 1128(a)(4) of the Act requires that the Secretary exclude from participation in Medicare, Medicaid, and all federal health care programs any individual or entity: 

(1) convicted of a felony criminal offense under federal or state law;

(2) where the offense occurred after August 21, 1996 (the date of enactment of the Health Insurance Portability and Accountability Act of 1996); and

(3) the criminal offense is related to the unlawful manufacture, distribution, prescription, or dispensing of a controlled substance. 

Petitioner does not dispute that based on his guilty plea the district court found him guilty of one count of conspiracy to possess with intent to distribute and to distribute controlled substances in violation of 21 U.S.C. §§ 841(a)(1) and 846.  IG Ex. 4 at 1; IG Ex. 3 at 5; P. Br. at 3.  The acceptance of Petitioner’s guilty plea by the district court with the entry of the judgment of guilty constitutes a “conviction” under the Act.  Act § 1128(i)(1)-(3).  Petitioner also does not dispute that he could have been sentenced to a maximum of 20 years in prison, making his offense a felony under 18 U.S.C. § 3559(a)(3).  IG Ex. 3 at 2; P. Br. at 4.  Petitioner admitted as part of his plea agreement that his involvement in the conspiracy occurred from November 2019 through June 2020, which is after August 21, 1996.  IG Ex. 3 at 6.  Based on the undisputed facts, I conclude that Petitioner was convicted of a felony criminal offense under federal law which occurred after August 21, 1996, and the first two elements required to trigger an exclusion under section 1128(a)(4) of the Act are satisfied. 

Petitioner also does not dispute that his criminal conduct was related to the unlawful manufacture, distribution, prescription, or dispensing of a controlled substance, the last element necessary to trigger an exclusion under section 1128(a)(4) of the Act.  Petitioner mentions, in passing, that he was not indicted on charges of unlawful distribution of controlled substances or aiding and abetting as his other co-defendants were, but those facts, while true, are immaterial.  P. Br. at 3.  Petitioner admitted in his plea agreement that he conspired with others to unlawfully possess with the intent to distribute and to

Page 7

distribute controlled substances.  IG Ex. 3 at 5; P. Ex. 5.  Therefore, the relationship or nexus between the offense of which Petitioner was convicted and the unlawful distribution or dispensing of a controlled is clearly established. 

I conclude that the elements of section 1128(a)(4) of the Act are satisfied by the undisputed facts, and Petitioner’s exclusion is required by the Act. 

4. Petitioner’s exclusion for five years is not unreasonable as a matter of law.

Congress has established a five-year minimum period of exclusion for exclusions pursuant to section 1128(a) of the Act.  Act § 1128(c)(3)(B).  Pursuant to 42 C.F.R. § 1001.2007(a)(2), when the IG imposes an exclusion in accordance with section 1128(a) of the Act for the statutory minimum period of five years, there is no issue of whether the period is unreasonable. 

Petitioner represents that he is “an upstanding and highly respected member of his community” as evidenced by his “cooperation with the government in connection with his plea agreement.”  P. Br. at 3.  Petitioner also points out that he faced a maximum of 20 years imprisonment following his guilty plea and argues that his sentence of one day of imprisonment reflects his relatively “minimal involvement.”  P. Br. at 3-4.  Petitioner adds that he has “acknowledged his wrongdoings and accepted the punishment set forth by the district court judge” and that further exclusion “will only add to the ever-mounting damage to [his] reputation and ability to practice his chosen profession.”  P. Br. at 4.  All Petitioner’s assertions are accepted as true for purposes of summary judgment.  But, a five-year exclusion is the minimum authorized by Congress and the issue of the reasonableness of the period of exclusion is not before me.  42 C.F.R. § 1001.2007(a)(2).  The IG ultimately did not consider any aggravating factor to extend the period of exclusion beyond five years and the facts asserted by Petitioner do not constitute mitigating factors under 42 C.F.R. § 1001.102(c) that may be considered when determining the period of exclusion.  Petitioner’s arguments may be viewed as requests for equitable relief.  But I have no authority to grant Petitioner any equitable relief.  Matthew J. Girardy, DMD, DAB No. 2987 at 7 (2020).  Congress required Petitioner’s exclusion for a minimum of five years pursuant to section 1128(a)(4) of the Act, and I am bound to follow the Act and the Secretary’s regulations.  42 C.F.R. § 1005.4(c)(1). 

Finally, Petitioner requests waiver of the exclusion on grounds that it would impose a hardship on all individuals who would have otherwise used his services as a community pharmacist.  P. Br. at 4.  Congress granted the Secretary limited authority to waive an exclusion under section 1128(a)(1), (3), and (4) of the Act.  Act § 1128(c)(3)(B).  I have been delegated no authority to grant a waiver, and I am limited to deciding the issues specified by 42 C.F.R. § 1001.2007(a)(1) with authority specified by 42 C.F.R. § 1005.4(b).  Having found a basis for the exclusion, I must uphold a minimum

Page 8

mandatory period of five years.  Act § 1128(c)(3)(B); 42 C.F.R. § 1001.102(a).  Accordingly, I conclude that Petitioner’s exclusion for a period of five years is not unreasonable as a matter of law. 

III.     Conclusion

For the foregoing reasons, Petitioner is excluded from participation in Medicare, Medicaid, and all other federal health care programs for a minimum of five years, effective May 20, 2024.