Esmeralda Ramos, DAB CR6959 (2026)

DECISION

I affirm the exclusion of Petitioner, Esmeralda Ramos, from participation in all federal health programs. 

I.  Background

In a March 31, 2026 notice, the Inspector General (IG) of the Department of Health and Human Services excluded Petitioner from participation in all federal health care programs under section 1128(b)(4) of the Social Security Act (Act) (42 U.S.C. § 1320a-7(b)(4)) because Petitioner’s “license to provide health care as a registered pharmacy technician in the State of Florida was revoked, suspended, or otherwise lost or was surrendered while a formal disciplinary proceeding was pending, for reasons bearing on [Petitioner’s] professional competence, professional performance, or financial integrity.”  IG Ex. 1 at 1.  The notice also states that the exclusion will remain in effect until the IG reinstates Petitioner, which may occur if Petitioner regains a Florida registered pharmacy technician license, obtains a health care license in another state, or completes at least three years of the exclusion.  Id. 

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On April 15, 2026, Petitioner requested a hearing to dispute the exclusion.  On April 23, 2026, the Civil Remedies Division acknowledged receipt of the hearing request, gave notice I would hold a prehearing conference, and issued my Standing Order. 

On May 19, 2026, I held a telephonic prehearing conference with the parties.  DAB E-File Entry No. 5 (Order Following Prehearing Conference).  The parties agreed to the prehearing exchange schedule that I set. 

On June 22, 2026, the IG submitted a prehearing exchange, consisting of a brief (IG Br.), and 3 proposed exhibits (IG Exs. 1-3).  On June 28, 2026, Petitioner timely filed a brief (P. Br.).  Petitioner did not submit any proposed exhibits and did not object to any of the IG’s proposed exhibits.  On August 3, 2026, the IG timely filed a reply brief (IG Reply). 

A.  Admission of Exhibits

Absent objection from Petitioner, I admit IG exhibits 1 through 3 into the record.  Standing Order ¶ 13; see also 42 C.F.R. § 1005.8(c). 

B.  Decision on the Written Record

I directed the parties to indicate in their briefs whether an in-person hearing would be necessary, and, if so, to “describe the testimony” they wish to present, the names of the witnesses they would call, and a summary of each witness’ proposed testimony.  Standing Order ¶ 11; DAB E-File Entry Nos. 5a-5b.  The parties indicated that an in-person hearing is not necessary.  IG Br. at 4; P. Br. at 3. 

I also advised that “I will not conduct a hearing in this case unless a party files admissible, written direct testimony, and the opposing party asks to cross-examine one or more witnesses.  If I do not conduct a hearing, then I will issue a decision based on the written record.”  Standing Order ¶ 12; see also Civil Remedies Division Procedures § 19(b).  The parties did not offer any witnesses for examination nor file direct testimony.  IG Br. at 4; P. Br. at 3. 

Under these circumstances, there is no need to hold an in-person hearing and I issue a decision based on the written record. 

II.  Issues

The issues in this case are: 

1. Whether the IG had a legitimate basis to exclude Petitioner under 42 U.S.C. § 1320a-7(b)(4); and,

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2. If so, whether the length of exclusion is unreasonable. 

III.  Jurisdiction

Pursuant to 42 U.S.C. § 1320a-7(f)(1), I have jurisdiction to adjudicate this case.  See also 42 C.F.R. §§ 1001.2007, 1005.2. 

IV.  Findings of Fact

1. Petitioner was licensed to practice as a registered pharmacy technician in the State of Florida.  IG Ex. 2 at 1.
2. On March 3, 2025, the State of Florida Department of Health filed an Administrative Complaint before the Board of Pharmacy against Petitioner.  IG Ex. 2.
3. The Administrative Complaint alleged that between June and September 2024, Petitioner diverted oxycodone and Adderall, both Schedule II controlled substances, from her employer on one or more occasions.  Id. at 2.  It further alleged that Petitioner did not lawfully obtain either drug from a practitioner or pursuant to a valid prescription and did not have a legitimate purpose to be in possession of the drugs.  Id.  Based on these allegations, the Administrative Complaint asserted that Petitioner violated the law prohibiting persons from unlawfully obtaining and possessing controlled substances while acting in the course of her professional practice.  Id. at 3; Fla. Stat. § 893.13(6)(a).  Accordingly, the Department of Health requested that the Board of Pharmacy enter an order imposing, among other things, permanent revocation or suspension of Petitioner’s license.  Id.
4. The Administrative Complaint included a Notice of Rights, which informed Petitioner that she could request a hearing.  Id. at 5.  The Notice of Rights further warned Petitioner that she would “waive the right to request a hearing on the facts alleged in [the] Administrative Complaint” if Petitioner failed to request a hearing.  Id.  Petitioner did not request a hearing.  IG Ex. 3 at 1; P. Br. at 4.
5. On November 10, 2025, the Board of Pharmacy issued a Final Order revoking Petitioner’s license.  IG Ex. 3.  The Final Order explains that because Petitioner did not request a hearing, the facts alleged in the Administrative Complaint were deemed admitted, and the conclusions of law approved and adopted.  Id. at 2.  Based on the undisputed findings of fact and conclusions of law, the Board of Pharmacy found Petitioner’s violations warranted discipline and revoked Petitioner’s license.  Id. 

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V.  Conclusions of Law and Discussion

A.  The IG excluded Petitioner under 42 U.S.C. § 1320a-7(b)(4)(A) and has proven each required element under the statute. 

The Act authorizes the Secretary of Health and Human Services to exclude from program participation an individual whose license to provide health care “has been revoked or suspended by any State licensing authority” for reasons bearing on the individual’s “professional competence, professional performance, or financial integrity.”  42 U.S.C. § 1320a-7(b)(4)(A); see also 42 C.F.R. § 1001.501(a)(1).  Petitioner does not dispute either element.  P. Br. at 1, 2. 

Regarding the first element, as detailed in Finding of Fact No. 4, the State of Florida Board of Pharmacy revoked Petitioner’s license.  IG Ex. 3 at 2.  For the second element, Findings of Fact Nos. 3 and 5 show that the Board of Pharmacy found that Petitioner, during the course of her professional practice, diverted Schedule II controlled substances from her employer on at least one occasion and unlawfully possessed those substances, which were not obtained from a practitioner or pursuant to a valid prescription.  IG Ex. 2 at 2-3.  These findings establish the required nexus between the Board’s revocation and Petitioner’s professional performance. 

Having proven the essential elements, the IG is authorized to exclude Petitioner.  Nevertheless, Petitioner proffers that the allegations in the Administrative Complaint were investigated and that the Florida State Attorney’s Office ultimately declined to file criminal charges.  P. Br. at 4; see also Request for Hearing; DAB E File Entry No. 1a (Notice of Case Status – Letter of Release).  Petitioner further explains that her decision to not respond to the Administrative Complaint was not an admission of guilt but was instead based on her intention to leave the pharmacy technician profession, and she confirms she has adopted a new career path and does not intend to return to pharmacy.  P. Br. at 4. 

I have no reason to doubt Petitioner’s assertions.  However, as Petitioner acknowledges, this forum is not appropriate for challenging the Board of Pharmacy’s revocation.  I am unable to review the Board of Pharmacy’s Final Order nor is it otherwise subject to collateral attack.  42 C.F.R. § 1001.2007(d); see also, e.g., Donna Rogers, DAB No. 2381 (2011).  Likewise, the State Attorney’s decision not to pursue criminal charges does not control the exclusion determination, which is instead based on the Board’s revocation of Petitioner’s license.  To the extent that Petitioner requests that I exercise discretion and provide equitable relief, I lack the authority to grant it.  Letatia Norris, DAB No. 3135 at 15 (2024); Matthew J. Girardy, DMD, DAB No. 2987 at 6-7 (2020); US Ultrasound, DAB No. 2302 at 8 (2010) (“Neither the ALJ nor the Board is authorized to provide equitable relief by reimbursing or enrolling a supplier who does not meet statutory or regulatory requirements.”). 

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Therefore, as the record establishes—and Petitioner does not dispute—that the revocation of her pharmacy technician license was related to professional performance, I find that the criteria for permissive exclusion under 42 U.S.C. § 1320a‑7(b)(4)(A) are met. Accordingly, the IG had proper grounds to exclude Petitioner under this provision. 

B.  The length of Petitioner’s exclusion is reasonable as a matter of law. 

The length of the period of exclusion is established by statute.  Under 42 U.S.C. § 1320a-7(c)(3)(E), the period of exclusion “shall not be less than the period during which the individual’s or entity’s license to provide health care is revoked, suspended, or surrendered . . . .”  See also 42 C.F.R. § 1001.501(b)(1).  Because the length of the exclusion is dictated by statute, the period of exclusion is not subject to my review or action.  42 C.F.R. § 1005.4(c)(1) (stating that an ALJ does not have the authority to find invalid or refuse to follow Federal statutes or regulations).  Petitioner has not asserted that her license has been reinstated; therefore, I conclude that an indefinite period of exclusion is warranted under 42 U.S.C. § 1320a-7(c)(3)(E).1 

VI.  Conclusion

I affirm the IG’s determination to exclude Petitioner from participating in all federal health care programs under 42 U.S.C. § 1320a-7(b)(4).