Bernie Michael Simons, DAB CR6603 (2025)

DECISION

I affirm the determination of the Inspector General (IG) of the United States Department of Health and Human Services to exclude Petitioner, Bernie Michael Simons, for four years from participation in all federal health care programs.

I.     Procedural History

In a July 31, 2024 notice, the IG excluded Petitioner for four years from participation in all federal health care programs under section 1128(b)(3) of the Social Security Act.  42 U.S.C. § 1320a-7(b)(3); 42 C.F.R. § 1001.401.  The IG based the exclusion on Petitioner’s conviction of a misdemeanor in the Court of Common Pleas of Beaver County, Pennsylvania, related to the unlawful manufacture, distribution, prescription, or dispensing of a controlled substance, as defined under federal or state law.  See 42 U.S.C. § 1320a-7(b)(3); 42 C.F.R. § 1001.401.  The IG increased the length of exclusion from the presumptive three-year length under 42 U.S.C. § 1320a-7(c)(3)(D) to four years based on the alleged existence of the following aggravating circumstances:

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1. The acts that resulted in the conviction, or similar acts, were committed over a period of one year or more (i.e., from about January 2018 to about June 2019); and
2. The individual has been the subject of any other adverse action by any federal, state, or local government agency or board if the adverse action is based on the same set of circumstances that serves as the basis for the imposition of the exclusion (i.e., the Pennsylvania State Board of Medicine suspended Petitioner’s license to practice medicine).

IG Ex. 1 at 1; see also 42 C.F.R. § 1001.401(c)(2)(i), (2)(vi). 

Petitioner timely filed a request for hearing through the mail, which the Civil Remedies Division (CRD) received on August 28, 2024.  Petitioner challenged the four-year length of exclusion as too long and requested a reduction in the length of exclusion to three years. 

On August 30, 2024, CRD acknowledged receipt of the hearing request, informed the parties that I scheduled a telephone prehearing conference for September 24, 2024, and issued my Standing Order. 

On September 24, 2024, IG counsel appeared for the telephone conference, but Petitioner did not.  On September 26, 2024, CRD received in the mail a letter from Petitioner, mailed before the conference, indicating that he did not want to pursue his appeal “at this time” and that he would like to later pursue this appeal once he regained his license to practice medicine. 

In a September 27, 2024 Order, I rescheduled the prehearing conference for October 16, 2024.  I stated that Petitioner only had this one opportunity to appeal the length of the exclusion and, if he did not pursue the appeal now, he would not have an opportunity to do so in the future.  I stated that I would dismiss Petitioner’s hearing request if Petitioner still wanted to withdraw his hearing request now that he knew he would permanently lose his right to appeal. 

Petitioner appeared for the October 16, 2024 telephone conference, a summary of which is in my October 17, 2024 Order Following Prehearing Conference and Setting Schedule for Prehearing Submissions.  At the conference, Petitioner confirmed that he wanted to pursue his appeal, that he was only challenging the length of the exclusion, and that he would represent himself.  The parties also agreed to a prehearing submission schedule. 

On November 15, 2024, the IG submitted a brief (IG Br.) and five proposed exhibits (IG Exs. 1-5).  On December 12, 2024, Petitioner filed a letter brief (P. Br.) and a proposed exhibit.  Electronic Filing System (E-File) Doc. Nos. 10-11e.  On November 26, 2024, the IG filed a reply brief.

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II.    Issue

Whether the four-year length of the exclusion imposed on Petitioner is unreasonable. 

III.   Admission of Evidence and Decision on the Written Record

I admit all of the IG’s proposed exhibits into the record, without objection. See Standing Order ¶ 13; 42 C.F.R. § 1005.8(c).  I exclude Petitioner’s proposed exhibit because it duplicates IG Exhibit 5 at 17-22. 

The IG has no witness testimony to offer and indicated that an in-person hearing was unnecessary.  IG Br. at 6.  Petitioner did not provide a witness list or written direct testimony for any witnesses.  Because there are no witnesses to testify in this case, I issue this decision based on the written record. Standing Order ¶¶ 12, 16; see also 42 C.F.R. § 1005.6(b)(5). 

IV.   Jurisdiction

I have jurisdiction to adjudicate this case. 42 U.S.C. § 1320a-7(f)(1); 42 C.F.R. § 1001.2007. 

V.   Findings of Fact

1. Petitioner was licensed to practice medicine in Pennsylvania.  IG Ex. 5 at 1. 

Criminal Conviction

2. On July 20, 2023, an agent with the Pennsylvania Office of the Attorney General filed a Police Criminal Complaint against Petitioner charging him with three violations of Pennsylvania law that prohibits prescribing controlled substances to individuals who are dependent on those medications, but who are not using those medications in the medically proper manner.  IG Ex. 5 at 10-13.
3. The agent signed a detailed Affidavit of Probable Cause related to the investigation of Petitioner’s prescribing practices concerning three patients.  IG Ex. 5 at 14-26.
4. In August 2023, Petitioner entered into a Plea Agreement in which he agreed to plead guilty to three violations of improperly providing controlled substances to a dependent person.  IG Ex. 3 at 1.  The Plea Agreement indicated an agreed sentence of three years of probation and a restriction of Petitioner’s Drug Enforcement Administration license.  IG Ex. 3 at 1.

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5. On September 25, 2023, the Pennsylvania Attorney General’s Office issued an Information charging Petitioner with three misdemeanor counts of violating the Pennsylvania Controlled Substance Drug Device and Cosmetic Act from January 1, 2018 to June 6, 2019, by continuing to prescribe a controlled substance for patients whom Petitioner knew were addicted to the medications and who were not using them in the manner in which they were medically prescribed.  IG Ex. 2 at 5-6; IG Ex. 5 at 29-30.
6. On October 11, 2023, Petitioner pleaded guilty to counts 1 through 3 in the Information.  IG Ex. 5 at 31.
7. On October 11, 2023, the Court of Common Pleas sentenced Petitioner consistently with the Plea Agreement.  IG Ex. 4; IG Ex. 5 at 32-34.

Medical License Suspension

8. The Pennsylvania State Board of Medicine (Board of Medicine) licensed Petitioner to practice medicine in Pennsylvania under license number MD049102L.  IG Ex. 5 at 1.
9. On December 22, 2023, the Pennsylvania Department of State petitioned the Board of Medicine to impose an automatic suspension on Petitioner based on Petitioner’s misdemeanor criminal convictions.  IG Ex. 5 at 6-9.
10. On February 6, 2024, the Board of Medicine issued a Notice and Order of Automatic Suspension, which suspended Petitioner’s medical license in Pennsylvania for three years.  IG Ex. 5 at 1-4.  The Board of Medicine imposed the automatic suspension because “on October 11, 2023, [Petitioner] pled guilty to three counts of prescribing controlled substances to a person known to him to be, or whom he had reason to know, was a drug dependent person, namely [Petitioner] continued to write prescriptions for controlled substances for patients whom he knew were addicted to the medications and who were not using them in the manner in which they were medically prescribed, in violation of section 13(a)(13) of the Controlled Substance, Drug, Device, and Cosmetic Act (Drug Act).”  IG Ex. 5 at 1.

VI. Conclusions of Law and Analysis

1. Petitioner is subject to exclusion because he was convicted of a misdemeanor offense involving the unlawful prescription of a controlled substance. 

The Secretary of Health and Human Services (Secretary) may exclude an individual from participation in any federal health care program if that individual:

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[H]as been convicted, under Federal or State law, of a criminal offense consisting of a misdemeanor relating to the unlawful manufacture, distribution, prescription, or dispensing of a controlled substance.

42 U.S.C. § 1320a-7(b)(3). This exclusion provision applies to, among others, health care practitioners.  42 C.F.R. § 1001.401(a)(1).

Petitioner does not challenge that he is subject to exclusion for his misdemeanor criminal conviction and only requests a reduction in the length of the exclusion.  See Hearing Req.; October 17, 2024 Order Following Prehearing Conference and Setting Schedule for Prehearing Submissions at 2.  A review of the record in this matter (Findings of Fact 2-7) supports the conclusion that Petitioner is subject to exclusion under 42 U.S.C. § 1320a-7(b)(3) because he was convicted (42 U.S.C. § 1320a-7(i)(3) (guilty plea that was accepted by a court)) of a misdemeanor relating to the unlawful prescription of a controlled substance. 

2. The IG has proven two aggravating factors listed in the regulations that justify a length of exclusion beyond the general three-year period, and Petitioner has not proven the existence of any mitigating factors identified in the regulations to reduce the length of exclusion.

For an exclusion imposed under 42 U.S.C. § 1320a-7(b)(3), the general length of exclusion is three years unless, as provided in the regulations, there are aggravating factors to lengthen it or mitigating factors to reduce it.  42 U.S.C. § 1320a-7(c)(3)(D).

The IG alleged the existence of two aggravating factors listed in 42 C.F.R. § 1001.401(c)(2) to support the increased length of exclusion.  The IG identified as an aggravating factor that “[t]he acts that resulted in conviction or similar acts were committed over a period of one year or more.”  42 C.F.R. § 1001.401(c)(2)(i).  As stated in Findings of Fact 5-6, the Information charged that Petitioner’s criminal conduct lasted from January 1, 2018 to June 1, 2019, and Petitioner pleaded guilty to those charges.  Therefore, the IG proved the existence of this aggravating factor.

The IG also identified as an aggravating factor that Petitioner was subject to an adverse action by a state government board that was based on the same set of circumstances that serves as the basis for the imposition of the exclusion.  42 C.F.R. § 1001.401(c)(2)(vi).  As stated in Findings of Fact 9-10, Petitioner’s medical license in Pennsylvania was suspended for three years based on the same conduct that was charged in his criminal case.  Therefore, the IG proved this aggravating factor.

The only mitigating factor listed in the regulations for the exclusion imposed in this case is cooperation with federal or state authorities that results in others being convicted or

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excluded from participation in a federal health care program, additional cases being investigated, reports being issued identifying program vulnerabilities or weaknesses, or the imposition civil money penalties against others.  42 C.F.R. § 1001.401(c)(3).  Petitioner did not allege that this mitigating factor existed.

3. The four-year length of Petitioner’s exclusion is not unreasonable.

When considering the length of exclusion, “[t]he evaluation does not rest on the specific number of aggravating or mitigating factors or any rigid formula for weighing those factors, but rather on a case-specific determination of the weight to be accorded each factor based on a qualitative assessment of the circumstances surrounding the factors in that case.”  Farzana Begum, M.D., DAB No. 2726 at 2 (2016).  Further, the general purpose of an exclusion under 42 U.S.C. § 1320a-7 is “to protect federal health care programs and the programs’ beneficiaries and recipients from untrustworthy providers.”  Susan Malady, R.N., DAB No. 1816 at 4 (2002).  Ultimately, I must decide whether the four-year length of exclusion is unreasonable (i.e., is it within a reasonable range for the length of exclusion based on the relevant factors). 42 C.F.R. § 1001.2007(a)(1)(ii);
57 Fed. Reg. 3298, 3321 (Jan. 29, 1992).

In this case, Petitioner was convicted of three counts of unlawfully prescribing controlled substances for three individuals over the course of a year and a half, which resulted in a three-year suspension of his medical license.  Because Petitioner’s misconduct lasted over a prolonged period, involved multiple patients, and was severe enough to result in a three-year license suspension, I cannot conclude that the IG’s decision to add an additional year to the general three-year length of exclusion is unreasonable.

In arguing for a shorter period of exclusion, Petitioner raises his long history of working diligently to provide care to patients, the training he received that taught him to prescribe more opioid medications for patients, and the fact that someone in his practice would prescribe opioids under Petitioner’s name without authorization.  P. Br. at 1.  Petitioner also provided information concerning each of the patients involved in the criminal charges against him and that his actions concerning those patients were not criminal.  P. Br. at 1-2.  Rather, Petitioner only pleaded guilty to the criminal charges because his counsel advised it to avoid the possibility that Petitioner could face further charges and several years of imprisonment.  P. Br. at 2.  Finally, Petitioner states that he simply seeks to participate in federal programs once his medical license is restored rather than having to wait until a four-year exclusion concludes.  P. Br. at 3.

I am unable to reduce the length of exclusion based on Petitioner’s arguments.  Petitioner essentially argues that he is innocent of the crimes he pleaded guilty to committing.  However, it is impermissible in this forum to make collateral attacks on a criminal conviction. 42 C.F.R. § 1001.2007(d); see Travers v. Shalala, 20 F.3d 993, 998 (9th Cir. 1994).

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I understand Petitioner’s position that the exclusion should coincide with his medical license suspension.  However, the presumptive length of exclusion in this case is three years.  Based on the aggravating factors, I cannot find that the IG’s decision to add an additional year to the length of exclusion to be unreasonable.  The standard by which I review the IG’s decision concerning the length of exclusion is deferential.  Bryant Pryor, DAB No. 3165 at 10 (2024).  Therefore, I must uphold the length of exclusion.

VII.   Conclusion

I affirm the IG’s exclusion of Petitioner for four years from participation in federal health care programs.