Jeffrey Sattora, DAB CR5129 (2018)

DECISION

Petitioner, Jeffrey Sattora, was a physician assistant, working in New York, who used a forged prescription to purchase the narcotic Percocet.  He was caught and pled guilty in Oneida City Court to one misdemeanor count of possessing a forged instrument.  Based on his conviction, the Inspector General (IG) excluded him for three years from participating in Medicare, Medicaid, and all federal health care programs, as authorized by section 1128(b)(3) of the Social Security Act (Act).  Petitioner appeals.

For the reasons discussed below, I find that the IG is authorized to exclude Petitioner under section 1128(b)(3) and that no mitigating factor justifies shortening the length of the exclusion.

Background

Petitioner Sattora was a licensed physician assistant working under the direction of physicians at a health care center in Oneida, New York.  IG Ex. 4 at 1, 3.  Using the name and prescription pad of a center physician, he presented to a Walgreen’s pharmacy a forged prescription for Percocet tablets.  IG Ex. 4.  A suspicious pharmacist contacted the

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physician’s medical practice and confirmed that it was stolen from the physician without his knowledge.  IG Ex. 4 at 5.

Petitioner was charged with four misdemeanors:  second degree criminal possession of a forged instrument, first degree falsifying business records, third degree identity theft, and the unlawful manufacture, sale, prescription, distribution, dispensing, administering, possessing, or transporting of a controlled substance.  IG Ex. 2.  On January 27, 2016, he pled guilty to one misdemeanor count of possessing a forged instrument.  IG Ex. 3.

In a letter dated January 31, 2018, the IG notified Petitioner that he was excluded from participation in Medicare, Medicaid, and all federal health care programs for a period of three years, because he had been convicted of a misdemeanor criminal offense “related to the unlawful manufacture, distribution, prescription or dispensing of a controlled substance . . . .”  IG Ex. 1.  Petitioner requested review.

The IG submitted a brief (IG Br.) and four exhibits (IG Exs. 1-4).  Petitioner also submitted a brief (P. Br.), with four exhibits, which (contrary to Civil Remedies Division procedures and my explicit instructions) he labeled Exs. A through D.  In the absence of any objections, I admit into evidence IG Exs. 1-4 and P. Exs. A-D.  The IG submitted a reply brief (IG Reply).

The parties agree that an in-person hearing is not necessary.  IG Br. at 6; P. Br. at 3.Petitioner nevertheless suggests that his testimony “would be helpful as the mitigating factors relate specifically to Petitioner’s own conduct and treatment for [substance use disorders].”  P. Br. at 3-4.  As I explain below, however, Petitioner’s proffered testimony is not relevant to the issues before me and therefore is not admissible.  42 C.F.R. § 1005.17(c); see Order and Schedule for Filing Briefs and Documentary Evidence at 3-4 (¶ 7) (March 15, 2018).  I therefore close the record and issue this decision based on the parties’ written submissions.

Issue

The issues before me are:  whether the IG has a basis for excluding Petitioner from program participation; and, if so, whether the length of the exclusion is reasonable.

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Discussion

1. Because Petitioner was convicted of a misdemeanor criminal offense relating to the unlawful manufacture, distribution, prescription, or dispensing of a controlled substance, the IG may exclude him from participating in all federal health care programs.My findings of fact/conclusions of law are set forth, in italics and bold, in the discussion captions of this decision.

Section 1128(b)(3) of the Act allows the Secretary of Health and Human Services to exclude from participation in all federal health care programs an individual who has been convicted, under federal or state law, of a misdemeanor criminal offense relating to the unlawful manufacture, distribution, prescription, or dispensing of a controlled substance.  42 C.F.R. § 1001.401.  Among others who are subject to exclusion under section 1128(b)(3) is any individual who is, or has ever been, a health care practitioner or has ever been employed in any capacity in the health care industry.  42 C.F.R. § 1001.401(a).

Petitioner admits that he was convicted of a misdemeanor criminal offense.  He does not deny that his offense was related to the unlawful prescription or dispensing of a controlled substance – which it plainly was – but suggests that excluding him would not serve public policy.  P. Br. at 5.  He admitted the crime (albeit, after he was caught) and took steps to treat his substance use disorder.  But these equitable arguments have no bearing on whether Petitioner’s exclusion was legally permissible, and I have no authority to determine whether the IG should have exercised his authority to exclude. 
Igor Mitreski, M.D., DAB No. 2665 at 4 (2015).

All of the criteria for imposing an exclusion under section 1128(b)(3) have been met in this case.  Petitioner was a health care practitioner, employed in the health care industry.  He was convicted of a misdemeanor related to the unlawful prescription or dispensing of a controlled substance.  The IG was therefore authorized to exclude him from program participation.

2. No mitigating circumstance justifies shortening the length of Petitioner’s three-year exclusion.

A permissive exclusion based on section 1128(b)(3) is for three years unless the Secretary determines, in accordance with published regulations, that a shorter period is appropriate because of mitigating circumstances or that a longer period is appropriate because of aggravating circumstances.  Act § 1128(c)(3)(D); 42 C.F.R. § 1001.401(c)(1).  The regulations list as mitigating just one circumstance:  that the individual’s cooperation with federal or state officials resulted in:  others being convicted or excluded; other cases

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being investigated; reports being issued by the appropriate law enforcement agency identifying program vulnerabilities or weaknesses; or civil money penalties being imposed against others.

That Petitioner “cooperated” with law enforcement in his own case, after he was caught, does not create a mitigating circumstance.  He complains that, because of its nature, his crime did not lend itself to the level of cooperation and the results required by the regulation.  I’ve no doubt that the drafters of the regulation recognized the obvious fact that this factor would apply to a limited number of crimes.  At the time 42 C.F.R. § 1001.401 was initially promulgated, “[c]ommenters contended that cooperation itself should be considered mitigating, regardless of whether another individual or entity was sanctioned.”  57 Fed. Reg. 3298, 3315 (Jan. 29, 1992).  The drafters responded that while cooperation generally factors into the decision whether to exclude at all, “only significant cooperation should be considered mitigating, and the imposition of a sanction as a result of cooperation establishes that the cooperation was significant.”  Id.  A later amendment to the regulation expanded this mitigating factor, but only to include situations where cooperation led to additional investigations or law enforcement issuing reports identifying program vulnerabilities or weaknesses.  See 63 Fed. Reg. 46,676, 46,681, 46,688 (Sept. 2, 1998).  Limiting the scope of mitigation is well within the authority granted the Secretary by section 1128(c), and I am bound to follow the Secretary’s regulations.

Conclusion

The IG was authorized to exclude Petitioner from participating in Medicare, Medicaid, and other federal health care programs, and no mitigating circumstance justifies shortening the length of the three-year exclusion.