Anthony Joseph Moschetto, D.O., DAB CR5660 (2020)

DECISION

The Inspector General (IG) of the United States Department of Health and Human Services excluded Petitioner, Anthony Joseph Moschetto, D.O., from participation in Medicare, Medicaid, and all other federal health care programs based on Petitioner’s conviction of a felony related to the unlawful manufacture, distribution, prescription, or dispensing of a controlled substance.  For the reasons discussed below, I conclude that the IG has a basis for excluding Petitioner because he was convicted of a felony offense related to the unlawful prescription of a controlled substance.  I affirm the 15-year length of the exclusion because the IG proved the existence of three aggravating factors and there are no mitigating factors.  I also affirm that the effective date of Petitioner’s exclusion is February 20, 2020.

I.  Background

In a letter dated January 31, 2020, the IG informed Petitioner that he would be excluded from participation in Medicare, Medicaid, and all federal health care programs as defined in section 1128B(f) of the Social Security Act (Act) for a minimum period of 15 years, effective 20 days from the date of the letter.  IG Ex. 1 at 1.  The IG explained that

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Petitioner’s exclusion was based on a felony conviction “in the Nassau County Court of the State of New York, of a criminal offense related to the unlawful manufacture, distribution, prescription, or dispensing of a controlled substance” pursuant to section 1128(a)(4) of the Act, 42 U.S.C. § 1320a-7(a)(4).  IG Ex. 1 at 1.  Section 1128(a)(4) of the Act mandates the exclusion of any individual who is convicted of a felony occurring after August 21, 1996, relating to the unlawful manufacture, distribution, prescription, or dispensing of a controlled substance.  The IG extended the exclusion to 15 years based on the presence of the following three aggravating factors: 1.) the sentence imposed by the court included incarceration;Petitioner is currently serving a five-year term of incarceration.  IG Ex. 2 at 1, 2; P. Brief (Br.) at 5-6.  He was sentenced to a two-year term of incarceration for the offense involving his sale of a prescription for a controlled substance, and a separate five-year term of incarceration for the offense of criminal possession of a weapon in the first degree.  IG Ex. 2 at 1, 3; see IG Ex. 3 at 3, 19-20.  Additionally, Petitioner was sentenced to an indeterminate term of incarceration ranging from one to three years for the offense of conspiracy in the fourth degree to commit assault in the first degree, and a separate indeterminate sentence of incarceration ranging from 16 months to four years for the offense of arson in the third degree.  IG Ex. 2 at 1, 3; see IG Ex. 3 at 1, 20-21.  All four sentences of incarceration run concurrently.  IG Ex. 2 at 1, 3. 2.) Petitioner was convicted of other offenses in addition to the offense that formed the basis for the exclusion; and, 3.) Petitioner was subject to other adverse actions based on the same circumstances that formed the basis for his exclusion, in that he was excluded from participation in the New York Medicaid program and surrendered his New York medical license in lieu of contesting a charge of professional misconduct.At the time he surrendered his medical license, Petitioner admitted guilt to his state medical board’s charge of professional misconduct that was related to his criminal convictions.  IG Ex. 4 at 1.  IG Ex. 1 at 2; see 42 C.F.R. § 1001.102(b)(5), (8), (9).

Petitioner submitted a timely request for hearing that the Civil Remedies Division docketed on February 12, 2020.  On February 21, 2020, the Civil Remedies Division issued my standing pre-hearing order (Pre-Hearing Order), and on March 12, 2020, pursuant to 42 C.F.R. § 1005.6, I presided over a telephonic pre-hearing conference.  That same day, I issued an order in which I, inter alia, established a schedule for the filing of briefs and documentary evidence.

Pursuant to these orders, the IG filed a brief (IG Br.) and nine proposed exhibits (IG Exs. 1-9).  Petitioner filed a brief that included several appended documents.Petitioner submitted a twelve-paged typewritten brief that is paginated, along with several handwritten pages that are not paginated.  Petitioner appended three documents to his brief that relate to Freedom of Information Law (“FOIL”) requests he submitted to the Office of the District Attorney for Nassau County, New York.  One document is a November 27, 2017 letter from the District Attorney denying Petitioner’s appeal of the District Attorney’s denial of a FOIL request because the unspecified documents could not be located.  The other documents, dated October 23 and November 19, 2018, pertain to the District Attorney’s denial of Petitioner’s request for a copy of a search warrant and affidavit because those documents “were sealed pursuant to a court order,” and “the District Attorney’s office is not at liberty to disclose those materials.”  Even if Petitioner had been able to submit a copy of the search warrant and related documents as evidentiary exhibits, Petitioner is not permitted to collaterally attack his conviction in this forum.  42 C.F.R. § 1001.2007(d).  Thereafter, the IG filed a reply brief.

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Neither party has submitted the written testimony of any witnesses, and therefore, a hearing is unnecessary for the purpose of cross-examination of any witnesses.  Pre-Hearing Order § 11; see Lena Lasher, DAB No. 2800 at 4 (2017) (discussing that when neither party submits written direct testimony as directed, “no purpose would be served by holding an in-person hearing”), aff’d, Lasher v. Dep’t of Health & Human Servs., 369 F. Supp.3d 243 (D.D.C. 2019). I will decide this case on the written submissions and documentary evidence.

II.  Issue

Whether the IG has a basis for exclusion and, if so, whether the 15-year length of the exclusion imposed by the IG is unreasonable.  42 C.F.R § 1001.2007(a)(1)-(2).

III.  Jurisdiction

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

IV.  Findings of Fact, Conclusions of Law, and AnalysisMy findings of fact and conclusions of law are set forth in italics and bold font.

1.  Petitioner’s conviction subjects him to a mandatory exclusion from all federal health care programs.

A mandatory exclusion from all federal health care programs is set forth at 42 U.S.C. § 1320a-7(a)(4), which states:

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(a) Mandatory exclusion

The Secretary shall exclude the following individuals and entities from participation in any Federal health care program (as defined in section 1320a-7b(f) of this title):

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(4) Felony conviction relating to controlled substance

Any individual or entity that has been convicted for an offense which occurred after August 21, 1996, under Federal or State law, of a criminal offense consisting of a felony relating to the unlawful manufacture, distribution, prescription, or dispensing of a controlled substance.

The IG argues that she properly excluded Petitioner from all federal health care programs based on his felony conviction for an offense related to the unlawful manufacture, distribution, prescription, or dispensing of a controlled substance.  IG Br. at 2-4.  Petitioner does not dispute that he was convicted of a felony offense relating to the prescription of a controlled substance occurring after August 21, 1996.  Therefore, exclusion from all federal health care programs is mandated pursuant to section 1128(a)(4).

On or about October 28, 2015, a grand jury returned a true bill of indictment charging that Petitioner committed 77 separate criminal offenses, to include that on or about January 22, 2015, he “did knowingly and unlawfully sell a prescription for a controlled substance, other than in good faith in the course of his professional practice.”  IG Ex. 3 at 3.  Petitioner entered a plea of guilty to that offense, along with three other offenses.  IG Ex. 2 at 1, 3; see IG Ex. 3 at 1, 3, 19-21.  On January 31, 2017, a New York Supreme Court justice sentenced Petitioner to, inter alia, five years of incarceration.The five-year sentence of incarceration was based on the offense that carried the longest period of incarceration, and as previously discussed, Petitioner was sentenced to a two-year period of incarceration for the offense of criminal sale of a prescription for a controlled substance.  IG Ex. 2 at 1, 3.  Although the exclusion is based solely on Petitioner’s conviction for selling controlled substances, his guilty plea and resulting conviction to the three other counts is an aggravating factor that the IG cited as a basis for lengthening of the exclusion, as will be discussed below.  IG Ex. 2 at 1, 3; see IG Ex. 9 at 1-2 (U.S. Drug Enforcement Administration press release).

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In his brief, Petitioner alleges that his guilty plea and convictions were the product of an unfair criminal justice process.  Petitioner argues that his attorney told him that he would get a “great deal,” that he would be pleading guilty only to a “non-violent gun charge,” and that he “would be out [of prison] in 27 months.”  P. Br. at 4-5.  Petitioner explained that he ultimately realized that he had “many other charges besides the gun charge” and “was denied work release” because of his classification as a violent offender.  P. Br. at 5-6.  Petitioner alleged that the news media spread “fake news” and “sensationalize[d] his case,” and that he was arrested for “publicity.”  P. Br. at 6-7 (emphasis omitted).  Petitioner also alleged that a confidential informant repeatedly acted in his own self-interest, and that the confidential informant “drugged” him.  P. Br. at 7-11.  Petitioner’s typewritten brief is largely silent about his conviction for criminal sale of a prescription for a controlled substance, but he alleges in a handwritten addendum that “they could not produce even one illegal prescription.”In a handwritten addendum to his typewritten brief, Petitioner argued that he “refused to write illegal prescriptions” and “g[a]ve the [cooperating informant]” a blank, expired prescription pad . . . from [his] previous practice.”  Petitioner pleaded guilty to the felony offense of criminal sale of a prescription for a controlled substance, and his conviction for that offense is binding on these proceedings.  IG Ex. 2 at 1, 3; see 42 C.F.R. § 1001.2007(d).  P. Br. at 5.  Despite these various allegations, Petitioner did not challenge that he had entered a guilty plea to a felony offense related to the prescription of a controlled substance or had been convicted of that offense.  P. Br.  Petitioner explained that he thought he would only have to enter a guilty plea to the weapons charge, but entered pleas to the other three charges because his attorney told him he “had to say yes as ‘part of the deal.’”  P. Br. at 5.  Further, although Petitioner raised a number of sympathetic factors, such as adversity in his early years and that he had resuscitated a fellow inmate, none of these allegations identify any of the  enumerated mitigating factors listed in 42 C.F.R. § 1001.102(c).  See Eugene Goldman, M.D., aka Yevgeniy Goldman, M.D., DAB No. 2635 at 10 (2015) (explaining that unlisted factors, such as qualifications, skill, standing, or reputation cannot reduce the exclusion period).

Petitioner’s criminal conviction for criminal sale of a prescription for a controlled substance mandates exclusion pursuant to section 1128(a)(4).  An individual is “convicted” of a criminal offense “when a judgment of conviction has been entered against the individual” or when a guilty plea has been accepted by a Federal, State, or local court.”  42 U.S.C. § 1320a-7(i)(1), (3).  Section 1128(a)(4) mandates exclusion when an individual has a felony conviction relating to a controlled substance.  Petitioner’s conviction relates to the prescribing of a controlled substance, and that conviction is for a felony offense.  IG Exs. 2 at 1, 3; 3 at 3; see IG Ex. 7 at 1-2 (N.Y. Penal Law § 220.65 (classifying the offense of criminal sale of a prescription for a controlled substance as a class C felony));18 U.S.C. § 3559(a) (federal criminal code classifying a crime as a felony if the offense is punishable by more than one year of

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incarceration).  Therefore, Petitioner’s guilty plea to Count Twelve of the indictment, which charged that he committed a felony offense involving the prescribing of a controlled substance, mandates exclusion pursuant to section 1128(a)(4) of the Act.  IG Exs. 2 at 1, 3; 3 at 3

2.  A 15-year minimum exclusion is warranted based on the presence of three aggravating factors and no mitigating factors.

Petitioner argues that the IG was unreasonable in her determination that an exclusion for a minimum period of 15 years is warranted.  Pursuant to section 1128(a) of the Act, the minimum period of exclusion for a felony conviction involving the unlawful prescribing of a controlled substance is five years.  42 U.S.C. § 1320a-7(c)(3)(B).  Owing to the existence of aggravating factors, the IG imposed a 15-year exclusion, which is considerably longer than the mandatory five-year minimum period of exclusion.  The IG has the discretion to impose an exclusion longer than the minimum period when aggravating factors are present.  See 42 C.F.R. § 1001.102. 

The IG asserts the presence of three aggravating factors.  IG Ex. 1 at 2; IG Br. at 4-8.  First, the sentence imposed included incarceration.  42 C.F.R. § 1001.102(b)(5); IG Ex. 2 at 1, 3.  Second, Petitioner was convicted of other offenses in addition to the offense that was the basis for exclusion.  42 C.F.R. § 1001.102(b)(8); IG Exs. 2 at 1, 3; 3 at 1, 19-21.  And third, Petitioner was subject to other adverse actions based on the same circumstances that support the exclusion.  42 C.F.R. § 1001.102(b)(9); IG Exs. 4, 8.  

With regard to Petitioner’s sentence of incarceration, the uncontroverted evidence demonstrates that Petitioner was sentenced to incarceration for his conviction for the criminal sale of a prescription for a controlled substance.  IG Ex. 2 at 1, 3.  The sentencing judge ordered that Petitioner be incarcerated for two years for that offense alone, and for a total term of five years.  IG Ex. 2 at 1, 3.  The IG properly considered Petitioner’s sentence of incarceration to be an aggravating factor in this case.  42 C.F.R. § 1001.102(b)(5); see Jason Hollady, M.D., a/k/a Jason Lynn Hollady, DAB No. 1855 at 12 (2002) (determining that a nine-month period of incarceration was “relatively substantial”).

With respect to the second aggravating factor, Petitioner pleaded guilty to, and was convicted of, three other felonies (arson in the third degree, criminal possession of a weapon in the first degree, and conspiracy in the fourth degree to commit assault in the first degree).  IG Exs. 2 at 1, 3; 3 at 1, 19-21.  The IG properly considered Petitioner’s conviction for three other felony offenses to be an aggravating factor pursuant to 42 C.F.R. § 1001.102(b)(8).

Finally, and with respect to the third aggravating factor, Petitioner was subject to two other adverse actions.  IG Ex. 4, 8; see 42 C.F.R. § 1001.102(b)(9).  First, the New York

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Office of the Inspector General excluded Petitioner from the state’s Medicaid program based on his criminal conviction that was related to the furnishing of or billing for medical care, services, or supplies.  IG Ex. 8 at 1.  Second, Petitioner voluntarily surrendered his New York medical license, at which time he admitted guilt to a charge of professional misconduct that included specifications that he had a state criminal conviction and had fraudulently practiced medicine.  IG Ex. 4 at 1.  Because the charge of professional misconduct was based on the same facts underlying his conviction and exclusion, Petitioner’s surrender of his medical license is properly considered an adverse action that is an aggravating factor pursuant to 42 C.F.R. § 1001.102(b)(9).  IG Ex. 4 at 4-6.

Evidence of aggravation may be offset by evidence of mitigation if it relates to one of the factors set forth at 42 C.F.R. § 1001.102(c).  I cannot consider evidence of mitigation unless it offsets the lengthening of a period of exclusion due to one or more of the enumerated aggravating factors listed in 42 C.F.R. § 1001.102(b).  42 C.F.R. § 1001.102(c).  Petitioner has not identified a factor that can warrant mitigation of an exclusion pursuant to 42 C.F.R. § 1001.102(c).

A 15-year exclusion is appropriate based on the presence of three aggravating, and no mitigating factors; the additional 10 years of exclusion is entirely reasonable, if not insufficiently lenient, based on the presence of several aggravating factors.  Not only was Petitioner sentenced to incarceration, but the same criminal conduct that led to his conviction formed the basis for the other adverse actions involving his loss of his medical license and his exclusion by the New York Medicaid program.  42 C.F.R. § 1001.102(b)(5),(9). 

Most significantly of the three aggravating factors, Petitioner was convicted of several other serious crimes in connection with his conviction for the criminal sale of a prescription for a controlled substance.  IG Ex. 2 at 1, 3; see 42 C.F.R. § 1001.102(b)(8).  This factor, alone, could fully support the IG’s determination that a lengthy exclusion is necessary because Petitioner is “an untrustworthy individual whose conduct presents a substantial risk to the Federal health care programs.”  IG Br. at 8.  With respect to this aggravating factor, the IG explained the following:

Petitioner’s scheme to harm a rival cardiologist, started with the burning of his rival’s building (Arson), and progressed to a conspiracy to assault and possibly kill his former colleague (Conspiracy) . . . Petitioner funded his crimes thru [sic] the sale of prescriptions for Oxycodone (Criminal Sale of Prescription for a Controlled Substance) and trafficking guns and rifles (Criminal Possession of a Dangerous Weapon).

IG Br. at 8 (internal citations omitted).  A felony complaint, dated April 14, 2015, charged that Petitioner enlisted two co-defendants who “intentionally started a fire and

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damaged a building.”  IG Ex. 5 at 1.  The felony complaint charged that Petitioner provided the co-defendants a key to access the building, and also provided them a “financial payment.”  IG Ex. 5 at 1.  According to the felony complaint, a co-defendant “entered the building with the key with a duffel bag of gasoline which he ignited.”  IG Ex. 5 at 1.  The seriousness of this arson is underscored by the fact that Petitioner’s sentence included an order that he pay more than $80,000 in restitution for the property damage that resulted from the arson.  IG Ex. 2 at 1.  Likewise, the gravity of this aggravating factor is evidenced by Petitioner’s conviction for engaging in a conspiracy to commit first degree assault upon another individual.  IG Exs. 2 at 1, 3; 3 at 19-20; see N.Y. Penal Law § 121.10 (defining assault in the first degree to include an assault “by means of a deadly weapon or dangerous instrument” or “[w]ith intent to disfigure . . . seriously and permanently, or to destroy, amputate or disabled permanently a member of organ of [someone’s] body.”).  In particular, and in furtherance of this conspiracy to commit a first degree assault on another person, Petitioner provided “payments of currency to the co-conspirators” and “instruct[ed] . . .  the means, methods and locations of where the victim should be assaulted.”  IG Ex. 3 at 20-21; see IG Ex. 6 at 1 (felony complaint).  The significance of Petitioner’s other offenses is evidenced by the fact that the sentencing justice imposed a lengthy 13-year order of protection for the victim of Petitioner’s crimes, meaning that the order of protection will continue for years after Petitioner presumably completes his five-year term of incarceration and five-year term of supervised post-release parole.  IG Ex. 2 at 1, 3.  These other offenses, which are connected to the offense underlying Petitioner’s exclusion, constitute a significant aggravating factor. I need not address Petitioner’s conviction for criminal possession of a weapon in the first degree, other than to note that this offense involved his criminal possession of ten or more firearms and yielded a five-year term of incarceration.  IG Exs. 2 at 1, 3; 3 at 19-20.  The Departmental Appeals Board (DAB) has explained that an exclusion is “remedial,” and is “designed to protect federal health care programs and beneficiaries from untrustworthy individuals.”  Robert Kolbusz, M.D., DAB No. 2759 at 6 (2017).  Petitioner’s crimes involving arson and the conspiracy to cause a serious injury to another person unquestionably evidence a high degree of untrustworthiness that warrants a lengthy exclusion based on this aggravating factor alone.

The DAB has repeatedly upheld lengthy exclusions when aggravating factors are present.  Edwin L. Fuentes, DAB No. 2988 at 12-14 (2020) (15-year exclusion upheld based on three aggravating factors); Eugene Goldman, M.D., DAB No. 2635 at 8-12 (15-year exclusion upheld based on two aggravating factors); Fareydoon Abir, M.D., DAB No. 1764 at 8 (2001) (15-year exclusion upheld based on three aggravating factors); Mohomad Ahmad Bazzi, DAB No. 2917 at 14 (2018) (upholding an 18-year exclusion when three aggravating factors (loss of $50,000 or more, acts committed over a period of one year or more, and a sentence including incarceration) and one mitigating factor (cooperation with federal or state officials) were present).  Further, the DAB has issued decisions in which it reinstated 15-year exclusions when aggravating factors were

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present.  Jeremy Robinson, DAB No. 1905 (2004); Thomas D. Harris, DAB No. 1881 (2003).  Although the aforementioned cases support a 15-year exclusion based on the untrustworthiness of the excluded individual, none of these cases involve an aggravating factor involving simultaneous convictions for the egregious crimes of arson, conspiracy to commit assault in the first degree, and criminal possession of a weapon in the first degree.  See IG Ex. 2 at 1, 3.

V.  Effective Date of Exclusion

The effective date of the exclusion, February 20, 2020, is established by regulation, and I am bound by that provision.  42 C.F.R. §§ 1001.2002(b); 1005.4(c)(1).

VI.  Conclusion

For the foregoing reasons, I affirm the IG’s decision to exclude Petitioner from participation in Medicare, Medicaid, and all federal health care programs for a minimum period of 15 years.