David John Loiselle, D.P.M., DAB CR6192 (2022)

DECISION

I affirm the determination of the Inspector General (IG) of the United States Department of Health and Human Services to exclude Petitioner, David John Loiselle, D.P.M., from participation in all federal health care programs for five years under 42 U.S.C. § 1320a‑7(a)(4).

I.   Procedural History

In an October 19, 2021 notice, the IG informed Petitioner that the IG was required to exclude Petitioner from participation in all federal health care programs based on his conviction in the United States District Court for the Middle District of Florida (District Court).  The IG provided Petitioner with 30 days to submit information and supporting documentation that Petitioner wanted the IG to consider, “including cooperation you may have provided which would meet the criteria for the mitigating factor under 42 C.F.R. 1001.102(c)(3).”  IG Ex. 1 at 1.

In two emails sent on November 17, 2021, Petitioner responded to the IG’s October 19, 2021 notice and provided screenshots showing his cooperation with law enforcement and

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his efforts to address underlying emotional, mental, and physical problems that contributed to his criminal conduct.  IG Exs. 6-22.  In one of the emails, Petitioner provided the name and an email address for a federal prosecutor who could confirm his cooperation.  IG Ex. 6 at 1.  Petitioner also stated:  “I hope and pray this information and documentation of mitigating factors will be enough to prevent exclusion from the government health care assistance I am so fortunate to currently have and need.”¹  IG Ex. 6 at 2.

In an April 29, 2022 notice, the IG informed Petitioner that he was being excluded from participation in all federal health care programs under 42 U.S.C. § 1320a-7(a)(4) for a period of five years based on a felony conviction in the District Court.  The notice stated that the exclusion would be effective 20 days from the date of the notice.  IG Ex. 2.

Petitioner requested a hearing to dispute the exclusion.  On July 25, 2022, the Civil Remedies Division (CRD) issued my Standing Prehearing Order and notified the parties that I would hold a prehearing conference.  On August 9, 2022, I held the prehearing conference by telephone, the substance of which was summarized in my August 12, 2022 Order Following Initial Prehearing Conference, Scheduling Second Prehearing Conference, and Setting Schedule for Prehearing Submissions.  At the conference, Petitioner indicated that he might want to hire an attorney but had not done so for financial reasons.  After clarifying the issue that I would be able to decide in this case, I rescheduled the prehearing conference in order to provide Petitioner with time to consult with an attorney.

My August 12 Order required the IG to submit a prehearing exchange.  Based on concerns Petitioner raised at the prehearing conference, I directed the IG to submit as exhibits all of the documents Petitioner provided to the IG in response to the IG’s October 19, 2021 notice.  On September 12, 2022, the IG filed a prehearing exchange consisting of a brief (IG Br.) and 22 exhibits.

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On September 20, 2022, I held another prehearing conference, the substance of which is summarized in my September 22, 2022 Order Following Second Prehearing Conference, and Setting Schedule for Prehearing Submissions.  Petitioner stated at the conference that, although he could not afford to hire an attorney, he had consulted with one concerning the merits of this case.  I set October 18, 2022, as the date on which Petitioner needed to file his prehearing exchange and set a date for the IG to file a reply brief.

Petitioner did not file a prehearing exchange on October 18, 2022.  In an October 19, 2022 email, CRD staff reminded Petitioner that his prehearing exchange was due and informed Petitioner that I had extended his filing date to October 21, 2022.  E-Filing System (E-File) Document No. 9.  In an October 20, 2022 email, Petitioner stated that he was helping a friend adversely affected by Hurricane Ian and requested a new prehearing exchange due date of November 4, 2022.  E-File Document No. 10 at 1.  CRD staff sent an email on October 20, 2022, informing Petitioner that I granted the extension.  CRD staff stated:  “You MUST file your exchange (and we must receive your exchange) no later than Friday, November 4, 2022.”  E-File Document 10 at 1 (emphasis in original).  Petitioner did not file a prehearing exchange.

II.   Admission of Evidence and Decision on the Record

Petitioner did not object to any of the proposed exhibits; therefore, I admit all of the IG’s exhibits into the record.  See 42 C.F.R. § 1005.8(c); Standing Prehearing Order ¶ 12.

The IG indicated that she did not have any witness testimony to offer in this case and did not believe that an in-person hearing was necessary.  IG Br. at 5.  Petitioner did not indicate that he wanted any witnesses to testify in this case.  Therefore, I conclude that there is no need to hold an in-person hearing in this case, and I render a decision based on the written record.²  See CRD Procedures § 19(d).

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III.   Issue

Whether the IG had a basis to exclude Petitioner for five years from participation in all federal healthcare programs.  42 U.S.C. § 1320a-7(a)(4); 42 C.F.R. § 1001.2007(a)(1)-(2).

IV.   Jurisdiction

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

V.   Findings of Fact

1. Petitioner was a licensed podiatrist in Florida for more than 30 years.  See IG Ex. 4 at 19; IG Ex. 6 at 1.
2. On September 28, 2017, a grand jury empaneled by the District Court indicted Petitioner on three counts of criminal conduct.  IG Ex. 3.
3. Count One of the Indictment charged that, on or about April 14, 2016, Petitioner and another individual knowingly, willfully, and intentionally conspired to distribute a Schedule II controlled substance (oxycodone) in violation of 21 U.S.C. §§ 841(b)(1)(C), 846.  IG Ex. 3 at 1.
4. On March 27, 2018, Petitioner signed a plea agreement in which Petitioner agreed to enter a plea of guilty to Count One of the Indictment and to cooperate fully with the United States in the investigation and prosecution of other persons concerning the charges in Petitioner’s criminal case.  IG Ex. 4.
5. As part of the plea agreement Petitioner agreed to the following facts (IG Ex. 4 at 19-20): 

[Petitioner] is a podiatrist, who became addicted to prescription opiates.  To satisfy his addiction, he wrote prescriptions for oxycodone for [two individuals], who gave [Petitioner] some of their oxycodone after filling their prescriptions.

[Petitioner] wrote the prescriptions for [one of the individuals] on or about April 14, 2016, and he wrote the prescriptions for [the other individual] on or about April 25, 2016, May 23, 2016, and June 14, 2016.  [Drug Enforcement Administration] agents have obtained these prescriptions and have shown them to [Petitioner and the other individuals].

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All have confirmed that [Petitioner] wrote the prescriptions for oxycodone, that [the other individuals] filled them, and that [the other individuals] then – as part of each’s agreement with [Petitioner] – gave some of their oxycodone back to [Petitioner] for his personal use.

[Petitioner] also admitted he had written the [other two individuals’] prescriptions outside the course of his professional practice.  He further explained that he did not consider [the other two individuals] to be his patients, that he did not keep patient files for them, and that he took steps to avoid red flags for the prescriptions.  For instance, on one of the prescriptions that he had written for [one of the other individuals], [Petitioner] noted that the oxycodone was for “post operative pain,” even though, as both he and [the other individual] have admitted, [the other individual] had had no operation.

Additionally, on or about March 10, 2016, [Petitioner] wrote a prescription for hydrocodone for a minor girl with a toothache.  [Petitioner] admitted that he had written the prescription outside the scope of his professional practice because he is not a dentist.  He added that he had not examined the child before writing the prescription, that the prescription was too strong for a girl of her age, and that he did not keep a file for her because he did not consider her to be a patient.

In all, the above-discussed prescriptions totaled to 1200 milligrams of oxycodone and 150 milligrams of hydrocodone.

During the investigation, [Petitioner] voluntarily surrendered his [Drug Enforcement Administration] license.

6. In a July 19, 2019 Judgment in a Criminal Case, the District Court acknowledged that Petitioner pleaded guilty to Count One of the Indictment; adjudicated Petitioner guilty of Conspiracy to Distribute Oxycodone (21 U.S.C. §§ 841(b)(1)(C) and 846); dismissed two other counts in the Indictment; and sentenced Petitioner to probation for five years.  IG Ex. 5 at 1-2.

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VI.   Conclusions of Law and Analysis

The Secretary of Health and Human Services (Secretary) must exclude an individual from participation in any federal health care program if that individual: 

[H]as 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.

42 U.S.C. § 1320a-7(a)(4).  Further, the regulations implementing this statute state that this exclusion provision applies to, among others, health care practitioners.  42 C.F.R. § 1001.101(d)(1).

In the present case, the record supports the conclusion that all of the elements for a mandatory exclusion are met.

1. Petitioner was convicted of a criminal offense for purposes of 42 U.S.C. § 1320a-7(i)(1)-(3) because the District Court accepted Petitioner’s guilty plea, found Petitioner guilty, and entered a judgment of conviction against Petitioner.

Under 42 U.S.C. § 1320a-7(i), an individual is “convicted” of a criminal offense when:  (1) a judgment of conviction has been entered against him or her in a federal, state, or local court, regardless of whether an appeal is pending or the record of the conviction is expunged; (2) there is a finding of guilt by a court; (3) a plea of guilty or nolo contendere is accepted by a court; or (4) the individual has entered into a first offender program, deferred adjudication program, or other arrangement where a judgment of conviction is withheld.

In this case, the record shows that Petitioner pleaded guilty, the District Court adjudicated Petitioner guilty of an offense, and the District Court entered a judgment of conviction.  IG Ex. 5 at 1.  Petitioner did not dispute this.  See Hearing Req.; IG Ex. 6 at 1 (admitting that he is a convicted felon).  Therefore, I conclude that Petitioner meets the statutory definition of “convicted” of a criminal offense for purposes of exclusion under 42 U.S.C. § 1320a-7(i)(1)-(3).

2. Petitioner was convicted of a felony.

The IG argues:

Petitioner was convicted of violating 21 U.S.C. § 846.  I.G. Ex. 5.  The punishment for an offense under this section is a

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term of imprisonment of 20 years, a fine not to exceed $1 million, or both.  21 U.S.C. § 846, § 841(b)(1)(C).  An offense with a maximum term of imprisonment of 20 years is a federal felony under 18 U.S.C. § 3559(a)(3).  Therefore, Petitioner’s criminal offense was a felony under Federal law.

IG Br. at 3-4.  Petitioner does not dispute this and admits that he was convicted of a felony.  IG Ex. 6 at 1.

3. Petitioner was convicted of a felony criminal offense relating to the unlawful manufacture, distribution, prescription, or dispensing of a controlled substance.

In order for a felony conviction to serve as a basis to exclude under 42 U.S.C. § 1320a‑7(a)(4), that conviction must have been for conduct relating to the unlawful manufacture, distribution, prescription, or dispensing of a controlled substance.  The terms “related to” and “relating to” in 42 U.S.C. § 1320a-7(a) simply mean that there must be a nexus or commonsense connection.  See James Randall Benham, DAB No. 2042 at 5 (2006) (internal citations omitted); see also Friedman v. Sebelius, 686 F.3d 813, 820 (D.C. Cir. 2012) (describing the phrase “related to” in another part of section 1320a-7 as “deliberately expansive words,” “the ordinary meaning of [which] is a broad one,” and one that is not subject to “crabbed and formalistic interpretation.”) (internal quotation marks omitted).  Such a nexus exists between Petitioner’s criminal offense and the distribution, prescription, or dispensing of a controlled substance.

The IG argues the following:

Petitioner pleaded guilty to conspiracy to distribute oxycodone.  The elements of the offense, as admitted, are: two or more people agree to a shared and unlawful plan, Petitioner knew of the unlawful purpose of the plan and willfully joined in it, and the object of the unlawful plan was to distribute or dispense controlled substances, either for no legitimate medical purpose or outside the usual course of professional practice.  The facts demonstrate that Petitioner was a willing participant to unlawfully distribute oxycodone to others in order [to] obtain and use the drug himself.  His participation in the conspiracy was clearly connected to his unlawful distribution of controlled substances.  Therefore, the offense establishes the requisite nexus to the distribution of a controlled substance.

IG Br. at 4 (citations omitted).  I agree with the IG that Petitioner’s plea agreement demonstrates that the criminal offense to which he admitted guilt is clearly connected to

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the unlawful distribution or dispensing of controlled substances.  As the IG alludes to, Petitioner agreed that the elements of the offense in Count One of the Indictment (i.e., involving violations of 21 U.S.C. §§ 841(b)(1)(C) and 846) included an “unlawful plan     . . . to distribute or dispense, or cause the distribution or dispensing of, controlled substances, either for no legitimate medical purpose or outside the usual course of professional practice.”  IG Ex. 4 at 2.  The facts Petitioner admitted in the plea agreement, provided in full in the fifth factual finding above, conclusively show that Petitioner’s criminal offense was related to the distribution, prescription, or dispensing of controlled substances.  Petitioner did not dispute this.  See Hearing Req.; IG Ex. 6.

4. The conduct for which Petitioner was convicted occurred after August 21, 1996.

Petitioner admitted that his criminal acts took place in 2016.  IG Ex. 4 at 19-20.  The District Court found that the date that Petitioner’s offense concluded was April 14, 2016.  IG Ex. 5 at 1.  Therefore, Petitioner’s criminal conduct occurred after August 21, 1996. 

5. Petitioner is or has been a health care practitioner.

Petitioner admitted that he was a podiatrist at the time of his criminal conduct.  IG Ex. 4 at 19; IG Ex. 6 at 1.  Therefore, Petitioner is or has been a health care practitioner.  See 42 C.F.R. § 1001.101(d)(1).

6. Petitioner must be excluded from participation in all federal health care programs for five years.

As indicated above, the record conclusively shows that Petitioner was convicted, as that term is defined in 42 U.S.C. § 1320a-7(i), and that conviction meets all of the elements under 42 U.S.C. § 1320a-7(a)(4) for a mandatory exclusion.  Therefore, Petitioner is subject to a five-year exclusion under 42 U.S.C. § 1320a-7(c)(3)(B).

In his hearing request, Petitioner asserted that he had provided the IG with information and evidence related to four mitigating factors under 42 C.F.R. § 1001.101 that applied in this case (see IG Exs. 6-22) and that the IG did not explain why all of the mitigating factors were denied.  Petitioner stated that he would “greatly appreciate a review of this [exclusion] decision and the 4 overtly adequate mitigating factors with supporting documentation that would preclude such a life altering punishment.”  Hearing Req.  Further, at the first prehearing conference, Petitioner also raised a concern that it took the IG a long time to impose the exclusion following his conviction.

Neither of the arguments that Petitioner raised can result in a reduced length of exclusion.  The IG has 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 have no authority to review or alter the length

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of the exclusion imposed on Petitioner.  See 42 C.F.R. § 1001.2007(a)(2).  While it appears that Petitioner cooperated with federal law enforcement and Petitioner’s cooperation may constitute a mitigating circumstance under the regulations, (see 42 C.F.R. § 1001.102(c)(3)), a mitigating factor can only reduce the length of an exclusion that exceeds five years and cannot reduce it below the mandatory minimum five-year period.  See 42 C.F.R. § 1001.102(c).  As a result, Petitioner’s apparent mitigating circumstance could not reduce the length of his exclusion.

Finally, to the extent that Petitioner wishes an earlier effective date for the exclusion, so that the exclusion will end sooner, I have no jurisdiction to consider the effective date of his exclusion.  I am bound by the regulation that sets 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).

VII.   Conclusion

I affirm the IG’s determination that Petitioner must be excluded from participation in all federal health care programs for five years under 42 U.S.C. § 1320a‑7(a)(4).

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Endnotes

¹ In the email, Petitioner explained that he has several serious medical conditions that require medical services and medication on a regular basis.  Petitioner stated that he did not have the financial means to pay for those services or medication and that the “[l]oss of the current assistance I so greatly appreciate will be tantamount to a death sentence for me.  I [i]mplore you to consider the following information as meeting the criteria for mitigating factors.”  IG Ex. 6 at 1.  It is unclear what government health care assistance Petitioner receives; however, the IG’s exclusion does not prohibit Petitioner from participating in federal health care programs as a recipient or beneficiary of those programs.  The  exclusion only prohibits Petitioner’s participation as a person involved in providing and billing federal health programs for health care services.  See 42 C.F.R. § 1001.1901.

² Although a hearing request must be dismissed if a party abandons the request, I cannot conclude that Petitioner has abandoned his hearing request.  Despite failing to file a prehearing exchange, Petitioner has previously responded to CRD communication and actively participated at two lengthy prehearing conferences.  Further, because the IG submitted all of the emails and documents that Petitioner provided to the IG in response to its October 19, 2021 notice of intent to exclude, much of the record in this case is composed of Petitioner’s arguments and evidence.  Therefore, in all likelihood, the record already contains the argument and evidence that would have constituted Petitioner’s prehearing exchange.  Similarly, although I may sanction a party for failing to comply with my orders, dismissal is not appropriate as a sanction in this case.  Rather, it is sufficient that Petitioner has forfeited his right to file additional argument and evidence beyond that which he submitted to the IG or included in his hearing request.  The record before me is sufficient to render this merits-based decision.