George Appiah, PharmD, DAB No. 3081 (2022)

DETERMINATION TO DECLINE REVIEW OF ADMINISTRATIVE LAW JUDGE DECISION

After reviewing the record to evaluate the issues presented by George Appiah, PharmD (Petitioner) in his appeal of the administrative law judge decision in George Appiah, PharmD, DAB CR6154 (2022) (ALJ Decision), we have determined that we need not render a separate decision.  The ALJ determined that (i) the Inspector General (I.G.) had a lawful basis to exclude Petitioner, a pharmacist, from participation in all federal health care programs under section 1128(a)(4) of the Social Security Act (Act) based on his felony conviction relating to the unlawful manufacture, distribution, prescription, or dispensing of a controlled substance; and (ii) the nine-year exclusion imposed by the I.G. (four years longer than the mandatory minimum period) is not unreasonable based on three established aggravating factors and no mitigating factors.  ALJ Decision at 3-7.  On appeal, Petitioner does not identify any legal or factual error by the ALJ.  Instead, Petitioner asks the Board to reduce the length of his exclusion because it has imposed a hardship on him and his family, and because he is remorseful and in need of a “second chance.”  Notice of Appeal at 1-2; see also Reply at 1.¹

While we acknowledge the difficulties Petitioner will face due to his felony conviction and subsequent exclusion, neither the Board nor the ALJ has authority to reduce the length of his exclusion for any of the reasons proffered by Petitioner.²  And, as the ALJ concluded, Petitioner failed to identify, much less establish, any mitigating factor under

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42 C.F.R. § 1001.102(c) that could be considered to reduce the length of his exclusion to no less than five years.  ALJ Decision at 6-7.  Accordingly, pursuant to 42 C.F.R. § 1005.21(g), we decline review of and summarily affirm the ALJ Decision.  

Endnotes

¹ The Board has considered Petitioner’s letter dated November 27, 2022, as Petitioner’s reply despite being filed without leave and more than 10 days after the I.G.’s response brief.

² See, e.g., Yolanda Hamilton, M.D., DAB No. 3061, at 25 (2022) (rejecting argument that petitioner’s diminished employment prospects warrant reducing the length of an exclusion and characterizing this argument as a request for equitable relief for which the Board has no authority to grant); Matthew J. Girardy, DMD, DAB No. 2987, at 6-7 (2020) (rejecting argument that length of exclusion should be reduced based on the adverse effect on petitioner’s dental practice and noting that the Board has no authority to grant equitable relief); Jeremy Robinson, DAB No. 1905, at 7-8 (2004) (noting that “the Board has repeatedly declined to consider an individual’s age or financial or employment prospects in determining whether an exclusion period was reasonable” and explaining that “the practical consequences [of exclusion] to the excluded individual . . . are not mitigating factors”); Joann Fletcher Cash, DAB No. 1725, at 18-19 (2000) (rejecting argument that petitioner’s “dedication to her profession and an otherwise law-abiding life” warrant a reduction in the length of petitioner’s exclusion).