Vasan Haluthore Deshikachar, DAB CR6175 (2022)

DECISION DISMISSING CASE

The Inspector General (IG) of the Department of Health and Human Services excluded Petitioner from participating in all federal health care programs for five years.  Petitioner concedes that he must be excluded.  However, Petitioner disputes the date when the exclusion should take effect. 

My jurisdiction in these cases is limited to disputes as to whether an exclusion was properly imposed and/or the length of the exclusion is unreasonable.  Petitioner does not dispute the imposition of an exclusion or the length of the exclusion.  Therefore, I must dismiss this case because Petitioner has not raised any matters that I can adjudicate. 

Petitioner disputes the date on which the exclusion became effective.  However, I do not have the authority to alter the effective date of an exclusion.  I issue this dismissal as a decision dismissing this case for the purpose of noting that Petitioner has preserved this issue should he wish to seek judicial review in the federal courts after exhausting his administrative appeals. 

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I.   Petitioner’s Criminal Case

Petitioner is a physician.  On May 17, 2018, an Indictment was filed in the United States District Court for the Eastern District of Michigan (District Court) that charged Petitioner with 25 counts of criminal conduct (Counts 1-25).  Electronic Filing System (E-File) Document No. 4 at 9.¹  Count 1 charged “Conspiracy to Distribute Controlled Substance,” a felony, and Counts 2 through 25 charged “Controlled Substance – Sell, Distribute, or Dispense,” also felonies.  E-File Document No. 4 at 8. 

On March 12, 2019, Petitioner entered into a plea agreement, which was filed with the District Court.  E-File Document No. 4 at 13.  In the plea agreement, Petitioner agreed to plead guilty to Count 1 of the Indictment (i.e., a violation of 21 U.S.C. § 841).  E-File Document No. 1 at 10; E-File Document No. 7 at 1.  The plea agreement stated that the elements of this offense were: 

First:  That two or more persons conspired, or agreed, to commit the crime of unlawful distribution of controlled substances; and

Second:  That the defendant knowingly and voluntarily joined the conspiracy;

Third:  The controlled substances involved in the conspiracy included but were not limited to the schedule II controlled substances Oxycodone HCl and Oxymorphone HCl.

E-File Document No. 1 at 11.  The plea agreement provided a factual basis for the plea in which Petitioner admitted that he willfully conspired with two or more persons “to possess with intent to distribute and to distribute controlled substances, including but not limited to the Schedule II drug Oxycodone HC1 and the Schedule II drug Oxymorphone HC1 in violation of 21 U.S.C. §§ 841(a)(1) and 846.”  E-File Document No. 1 at 13.  The other individuals in the conspiracy would provide names and dates of birth to Petitioner who “prescribed controlled substances for patients he did not see or adequately examine,” and “knew he was not prescribing legitimately or in good faith.”  E-File Document No. 1 at 13.  Petitioner stipulated that he was a member of the conspiracy from on or about January 2015 through on or about March 2018, and that his conduct involved the distribution of more than 40,000 doses of Schedule II controlled substances.  E-File Document No. 1 at 14.  Petitioner also stated in the plea agreement that his conviction may “carry additional consequences under federal and state law, including the potential

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loss . . . and ability to hold certain licenses or to be employed in certain fields.”  E-File Document No. 1 at 23. 

After filing the plea agreement, the District Court set and reset the sentencing hearing multiple times from 2019 to 2021.  E-File Document No. 4 at 13-16.  On October 21, 2021, the District Court held the sentencing hearing at which the District Court accepted the plea agreement.  E-File Document No. 4 at 16.  Federal prosecutors filed a § 5K1.1 motion for a “50% downward departure” in Petitioner’s sentence, from 87-108 months of imprisonment to a custodial sentence of 44 months.  E-File Document No. 1 at 4, 7.  The motion indicated that Petitioner aided in the investigation and prosecution of others in the conspiracy, including testifying at trial.  E-File Document No. 1 at 5-6.

On October 25, 2021, the District Court entered a Judgment in Criminal Case in which the District Court adjudicated Petitioner guilty of violating 21 U.S.C. § 841 (Conspiracy to Possess with Intent to Distribute and to Distribute Controlled Substances).  E-File Document No. 7 at 1.  The District Court sentenced Petitioner to two months of imprisonment with “Time Served,” and three years of supervised release.  E-File Document No. 7 at 2-3.  The District Court also ordered the forfeiture of a variety of cryptocurrencies that Petitioner possessed as well as entered “a forfeiture money judgment in the amount of $1,500,000 . . . in favor of the United States.”  E-File Document No. 7 at 8. 

II.   Petitioner’s Exclusion and Appeal of that Exclusion

In an August 31, 2022 notice, the IG stated that Petitioner was being excluded, effective 20 days after the date on the notice, from participation in all federal health care programs under section 1128(a)(4) of the Social Security Act (42 U.S.C. § 1320a-7(a)(4)) for a period of 5 years.  The basis for the exclusion was “due to [Petitioner’s] felony conviction . . .  in the [District Court] of a criminal offense related to the unlawful manufacture, distribution, prescription, or dispensing of a controlled substance.”  E-File Document No. 1a at 1.

On September 7, 2022, Petitioner filed a request for hearing to contest the exclusion that the IG imposed.  Petitioner provided three arguments in the hearing request:  1) Petitioner met the criteria for a mitigating circumstance in 42 C.F.R. § 1001.102(c) because he provided extensive cooperation with federal law enforcement as evidenced by the motion in Petitioner’s criminal case for a downward departure in Petitioner’s sentence; 2) Petitioner’s sentencing was delayed by more than two years after the date he entered into a plea agreement “due to the fact he was a Cooperating Witness in the trial of his Codefendant”; and 3) Petitioner was unable to make use of the recent holding in Ruan v. United States, 142 S. Ct. 2370 (2022), as a defense in his criminal case because he pleaded guilty years earlier.  E-File Document No. 1 at 1-3.  Petitioner also attached several documents in support of the hearing request. 

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On September 9, 2022, the Civil Remedies Division acknowledged receipt of the hearing request, notified the parties that I set a telephonic prehearing conference for September 29, 2022, and issued my Standing Prehearing Order and an informal “short-form” brief (Informal Brief) for Petitioner to complete and submit with his prehearing exchange after the prehearing conference.  E-File Document Nos. 2-2d.  

On September 14, 2022, Petitioner filed the completed Informal Brief along with an exhibit.  In the Informal Brief, Petitioner indicated that he was convicted of a felony related to the unlawful manufacture, distribution, prescription, or dispensing of a controlled substance and agreed that it was an offense for which exclusion is required.  Petitioner also indicated that he did not have any witness testimony that he wanted to present at a hearing and believed that an in-person hearing was unnecessary.  In addition, Petitioner presented arguments from his hearing request in more detail concerning his cooperation with federal law enforcement and the fact that his cooperation delayed the conclusion of his criminal case, resulting in an exclusion that did not become effective until years after Petitioner had pleaded guilty.  Petitioner asserted that the result of this delay, caused by his cooperation, in effect extended the exclusion by approximately three years.  Therefore, Petitioner sought a retroactive effective date for the imposition of his exclusion.  In doing so, Petitioner noted that the regulations do not permit a party to appeal the effective date of an exclusion; however, Petitioner also indicated that he wanted to obtain “judicial intervention.”  E-File Document No. 4 at 1-5. 

I held a telephonic prehearing conference on September 29, 2022, at which Petitioner and counsel for the IG were present.  When asked if he had hired an attorney, Petitioner stated that he was representing himself.  I informed Petitioner that he had the right to be represented by an attorney in this proceeding at his own expense.  See 42 C.F.R. § 1005.3(a)(1).  I also stated that Petitioner should tell me, at any point in the conference, if he decided that he wanted an attorney to represent him. 

At the prehearing conference, I summarized the exclusion notice, Petitioner’s hearing request, and Petitioner’s Informal Brief.  I also explained that I had limited jurisdiction and that I could only determine whether 1) there was a basis for the imposition of the exclusion and 2) whether the length of exclusion was unreasonable.  See 42 C.F.R. § 1001.2007(a)(1).  I noted that the IG had imposed the mandatory minimum length of exclusion (five years) based on Petitioner’s felony conviction (see 42 U.S.C. § 1320a-7(a)(4), (c)(3)(B); 42 C.F.R. §§ 1001.101(d), 1001.102(a)); therefore, I had no authority to review or alter the length of the exclusion imposed on Petitioner.  See 42 C.F.R. § 1001.2007(a)(2).  Further, I explained that, while it appears Petitioner’s cooperation with federal law enforcement constituted a mitigating circumstance that could reduce the length of exclusion (see 42 C.F.R. § 1001.102(c)(3)), a mitigating factor could only reduce the length of an exclusion that exceeded five years and could not shorten an exclusion to less than the mandatory minimum five-year period.  See 42 C.F.R.

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§ 1001.102(c).  As a result, Petitioner’s apparent mitigating circumstance could not reduce the length of his exclusion.  In addition, I informed Petitioner I could not consider whether the holding in Ruan could affect the outcome in his criminal case because I was bound by the judgment of conviction currently in effect.  See 42 C.F.R. § 1001.2007(d).  Petitioner would need for the District Court or another federal court to vacate his conviction for Ruan to affect his exclusion.  See 42 C.F.R. § 1001.3005(a)(1).  Finally, I confirmed that Petitioner was correct that I had no jurisdiction to consider the effective date of his exclusion because I was bound by the regulation that set the effective date as 20 days following the date on the exclusion notice.  See 42 C.F.R. § 1001.2002(b); see also 42 U.S.C. § 1320a-7(c)(1); 42 C.F.R. § 1005.4(c)(1). 

After informing Petitioner of my limited jurisdiction, I stated that Petitioner had two options:  1) I could issue a decision dismissing this case, which Petitioner could administratively appeal to exhaust the administrative appeals process, at which point Petitioner could then seek judicial review of the exclusion’s effective date in federal court (see 42 C.F.R. §§ 1005.21(a), (j), (k); cf. Seide v. Shalala, 31 F. Supp. 2d 466, 468-69 (E.D. Pa. 1998)); or 2) I could allow Petitioner to amend his filings to dispute whether there was a basis for the imposition of the exclusion, in which case I would ultimately render a decision on that issue.  Petitioner responded that he concurred with my summary of his arguments and my lack of jurisdiction.  Petitioner stated that he would prefer for me to issue a decision dismissing this matter so that he could eventually seek judicial review of the effective date.  IG counsel also agreed with my summary and assessment as to my jurisdiction.  I informed the parties I would issue a decision dismissing the case and that I would do so in a manner that preserves Petitioner’s challenge to the effective date of the exclusion.  I also requested that IG counsel submit a copy of Petitioner’s judgment of conviction for the record, which counsel did after the conference. 

III.   Dismissal of Petitioner’s Hearing Request

I am required to dismiss a hearing request when that “hearing request fails to raise any issue which may properly be addressed in a hearing.”  42 C.F.R. § 1005.2(e)(4).  As explained during the prehearing conference and summarized above, I may only consider whether there was a basis for the imposition of the five-year exclusion on Petitioner.  42 C.F.R. § 1001.2007(a)(1)-(2).  Petitioner’s hearing request did not dispute that there was a basis for imposing the exclusion and, in his Informal Brief, Petitioner admitted that there was a basis for imposing the exclusion.  Because there is no issue raised in the hearing request that I can adjudicate, I must dismiss the hearing request. 

Endnotes

¹ I cite to documents in this decision using the document number assigned by E-File and to the page that appears on the PDF counter when viewing the document.