Janell Olson , CR6282 (2023)

DECISION

I affirm the determination of the Inspector General (IG) of the United States Department of Health and Human Services to exclude Janell Olson (Petitioner) from participation in all federal health care programs for three years. 

I.    Background and Procedural History

In an October 31, 2022 notice, the IG informed Petitioner that she was excluding Petitioner from participation in all federal health care programs under 42 U.S.C. § 1320a 7(b)(3) for a period of three years. The notice stated that the exclusion would be effective 20 days from the date of the notice. P. Ex. 3 at 1; IG Ex. 1 at 1

On December 30, 2022, Petitioner requested a hearing to dispute the exclusion.  The hearing request included a brief and six proposed exhibits.  On January 4, 2023, the Civil Remedies Division acknowledged receipt of the hearing request, issued my Standing Prehearing Order (SPO), and notified the parties that I would hold a prehearing conference on January 24, 2023. 

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On January 23, 2023, Petitioner re-filed her prehearing brief (P. Br.) and six proposed exhibits (P. Exs. 1-6).  Petitioner marked and paginated the proposed exhibits in accordance with the requirements in the SPO. 

On January 24, 2023, I held the prehearing conference by telephone, the substance of which was summarized in my January 25, 2023 Order Following Prehearing Conference and Setting Schedule for Prehearing Submissions (January 25 Order). 

On February 14, 2023, Petitioner submitted her written direct testimony as Petitioner Exhibit 7 and requested that I seal/restrict access to that document.  On March 21, 2023, the IG filed a prehearing exchange consisting of a brief (IG Br.) and four proposed exhibits (IG Exs. 1-4).  On April 4, 2023, Petitioner filed a reply brief (P. Reply). 

On April 10, 2023, I issued an order restricting access to Electronic Filing System (E‑File) Document Numbers 8 through 10.  See 42 C.F.R. § 1005.18(c). 

II.    Admission of Exhibits and Decision on the Record

Neither party objected to any of the proposed exhibits; therefore, I admit them all into the record.¹  See 42 C.F.R. § 1005.8(c); SPO ¶ 12. 

Petitioner submitted her own written direct testimony.  P. Ex. 7.  The IG did not have any witnesses to present and indicated that an in-person hearing was unnecessary.  IG Br. at 7.  Because the IG did not request to cross-examine Petitioner, an in-person hearing is unnecessary, and I decide this case based on the written record.  SPO ¶¶ 11, 16; Civil Remedies Division Procedures ¶¶ 16(b), 19(b), (d); see also 42 C.F.R. § 1005.16(b). 

III.    Issue

Whether the IG had a legitimate basis to exclude Petitioner from participation in all federal health care programs for three years. 

IV.    Jurisdiction

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

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V.    Findings of Fact

1. From 2017 to 2019, Petitioner was employed at Detoxification Solutions Medication Assisted Treatment Clinic as an assistant manager handling marketing and admissions.  Petitioner also served as the front desk receptionist.  P. Ex. 5 at 1. 
2. On December 7, 2021, an Assistant United States Attorney filed a Superseding Criminal Information (Information) in the United States District Court for the District of Nevada (District Court) charging Petitioner with one count of “Possession of a Controlled Substance – Buprenorphine” in violation of 21 U.S.C. § 844(a).  The Information also alleged that Petitioner did not obtain the Buprenorphine directly from a practitioner or pursuant to a valid prescription or order from a practitioner.  P. Ex. 2; IG Ex. 3. 
3. On December 7, 2021, a Plea Agreement was filed with the District Court, in which Petitioner agreed to plead guilty to the charge in the Information.  IG Ex. 2. 
4. In the Plea Agreement, Petitioner agreed to the following factual basis for the charge against her: 
   1. Detoxification Solutions was a clinic that purported to treat patients for chronic pain and/or opioid addiction.  By January 2019, Petitioner had been employed at Detoxification Solutions for several months.  IG Ex. 2 at 5. 
   2. “On or about January 15, 2019, an individual visited the clinic.  The individual was not an existing patient and had not previously visited the clinic.  [Petitioner] – who was working at the front desk of the clinic on that date – provided the individual with a portion of a lozenge that contained buprenorphine, a controlled substance.  [Petitioner] provided the lozenge before the individual had met with or had been examined by any medical professionals who worked at the clinic.  [Petitioner] knew that the lozenge that she provided to the individual contained buprenorphine. . . . [Petitioner] obtained this buprenorphine lozenge from a ‘house supply’ that was kept at the clinic.  The clinic accumulated this ‘house supply’ by submitting prescriptions in the names of people who were not patients of the clinic to a pharmacy run by [a] co-defendant[.] The pharmacy filled those prescriptions and provided the buprenorphine lozenges directly to the clinic, instead of the people named in the prescriptions.  The clinic then used those lozenges to maintain its ‘house supply.’ . . . At the conclusion of the individual’s visit to the clinic, after the individual had met with [certain] co-defendants . . . , [Petitioner] provided the individual with a tray of fifteen additional lozenges containing buprenorphine.  [Petitioner] had been instructed to provide the fifteen lozenges by [the clinic owner].  [Petitioner]

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accepted a cash payment for the lozenges on behalf of the clinic. . . . The buprenorphine that [Petitioner] provided to the individual was not obtained directly, or pursuant to a valid prescription or order, from a practitioner, while acting in the course of his or her professional practice.”  IG Ex. 2 at 5-6. 

3. Petitioner acknowledged that the factual basis stated in the Plea Agreement was true and correct. IG Ex. 2 at 14

5. On April 18, 2022, the District Court held a sentencing hearing for Petitioner.  P. Ex. 4.  The prosecutor supported a sentence of one-year probation for Petitioner because “[a]lthough [Petitioner] was part of a much larger conspiracy that involved a larger amount of buprenorphine, which is a drug that may be abused, [Petitioner] did have a much more limited role in this conspiracy than the other conspirators.” P. Ex. 4 at 4-5.  Petitioner’s counsel agreed that Petitioner had a minor role in the conspiracy by serving as a “receptionist.” P. Ex. 4 at 5.  At the hearing, the District Court sentenced Petitioner to probation for two years, rather than one, because there was likely going to be a related criminal trial involving the clinic owner, with whom Petitioner has a romantic relationship.  P. Ex. 4 at 7-13. 
6. On May 3, 2022, the District Court issued an Amended Judgment in a Criminal Case that noted that Petitioner pleaded guilty to Count One in the Information and was adjudicated guilty of violating 21 U.S.C. § 844(a) (Possession of a Controlled Substance- Buprenorphine).  P. Ex. 1 at 1.  It also indicated that the District Court sentenced Petitioner to two years of probation.²   

VI.    Conclusions of Law and Analysis

The Secretary of Health and Human Services (Secretary) may exclude an individual from participation in all federal health care programs if that individual: 

[H]as been convicted, under Federal or State law, of a criminal offense consisting of a misdemeanor relating to the unlawful manufacture, distribution, prescription, or dispensing of a controlled substance. 

42 U.S.C. § 1320a-7(b)(3).  This exclusion may be imposed on individuals who have been employed in the health care industry.  42 C.F.R. § 1001.401(a)(3). 

As explained below, the record supports the three-year exclusion imposed on Petitioner. 

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1. Petitioner was convicted of a misdemeanor criminal offense under 42 U.S.C. § 1320a-7(i)(1)-(3) because the District Court accepted her guilty plea, adjudged her guilty, and issued a judgment of conviction.

For exclusion purposes, 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.  42 U.S.C. § 1320a-7(i). 

Petitioner admits that she was convicted of a misdemeanor criminal offense.  P. Br. at 2; P. Ex. 7 ¶ 6.  The record is also clear that Petitioner pleaded guilty to the charge in the Information, and the District Court accepted that plea, adjudged Petitioner guilty, and issued a judgment of conviction.  P. Ex. 1 at 1; IG Ex. 2 at 2, 15; IG Ex. 4 at 1.  Further, Petitioner’s criminal offense is a Class A misdemeanor because the maximum sentence that could be imposed for that offense is one year of imprisonment.  See 18 U.S.C. § 3559(a)(6); 21 U.S.C. § 844(a); IG Ex. 2 at 4. 

2. Petitioner’s criminal offense was related to the unlawful manufacture, distribution, prescription, or dispensing of a controlled substance. 

Petitioner argues that the crime to which she pleaded guilty only involved simple possession of a controlled substance (Buprenorphine) and did not relate to the manufacture, distribution, prescription, or dispensing of a controlled substance.  P. Br. at 2-3; P. Reply at 1.  Petitioner argues that she had a limited role in a conspiracy involving the owner of Detoxification Solutions because she had no supervisory or managerial duties.  P. Br. at 5.  Petitioner asserts that she was likely only charged because she had a romantic relationship with the owner of Detoxification Solutions.  P. Br. at 6. 

In support of her arguments, Petitioner cites federal court opinions indicating that a simple possession charge under 21 U.S.C. § 844(a) does not involve an intent to distribute the controlled substance.  P. Reply at 2.  Petitioner distinguishes the criminal provision under which she was convicted with 21 U.S.C. § 841(a)(1), which makes it a crime to knowingly and intentionally manufacture, distribute, or dispense a controlled substance, or to possess a controlled substance with the intent to distribute or dispense it.  P. Reply at 2.  Because these two crimes are significantly different, Petitioner argues that it would be against the legislative intent of the Controlled Substances Act to interpret pleading guilty to a crime under 21 U.S.C. § 844(a) as relating to the manufacture, distribution, prescription, or dispensing of a controlled substance.  P. Reply at 3. 

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The IG argues that, while Petitioner was convicted of the crime of possession of a controlled substance, Petitioner’s crime “relates to” the unlawful distribution or dispensing of a controlled substance because Petitioner’s plea agreement details how Petitioner provided an individual, who visited Detoxification Solutions’ clinic, buprenorphine lozenges without a prescription.  The IG asserts that, for purposes of exclusion, the nature of an excluded individual’s offense must be considered and not just the statutory label of the offense.  IG Br. at 4-5. 

In order for a conviction to serve as a basis to exclude under 42 U.S.C. § 1320a‑7(b)(3), 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 simply mean that there must be a common-sense connection or nexus.  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). 

When considering whether the criminal conviction is related to the unlawful manufacturing, distribution, prescription, or dispensing of a controlled substance, “the labeling or classification of the crime for which an excluded individual was convicted is not determinative for I.G. exclusion purposes.”  Kami L. Purvis, DAB No. 2990 at 5 (2020).  Like the present case, in Purvis, the excluded individual pleaded guilty to possession of a controlled substance.  Purvis, DAB No. 2990 at 2; see also N.Y. Penal Law § 220.09(1).  However, the record in that case (i.e., the sworn complaint) showed that the excluded individual had fraudulently used her employer’s prescription pad in order to have controlled substances improperly dispensed to herself.  Purvis, DAB No. 2990 at 5-6.  As a result, the exclusion was upheld: 

[T]he [administrative law judge] in this case was correct to extend his review of the facts and circumstances surrounding Petitioner’s conviction and not to restrict his review solely to the elements of the offense of possession of controlled substances.  Therefore, we find that the [administrative law judge] did not err when he concluded that Petitioner’s conviction was for a crime relating to the manufacture, distribution, prescription, or dispensing of a controlled substance. 

Purvis, DAB No. 2990 at 6. 

In the present case, it is true that Petitioner’s offense only involved the elements of knowingly possessing a controlled substance and that the controlled substance was not

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legitimately obtained.  IG Ex. 2 at 3.  However, in the Plea Agreement, Petitioner admitted certain facts and acknowledged that those facts were sufficient to satisfy the elements of her offense.  IG Ex. 2 at 5.  Those admitted facts involved Petitioner providing a buprenorphine lozenge to an individual who entered Detoxification Solutions’ clinic before that individual had been examined by medical staff at the clinic.  IG Ex. 2 at 5-6.  Further, at the conclusion of the individual’s visit at the clinic, Petitioner provided the individual with 15 additional buprenorphine lozenges.  IG Ex. 2 at 6.  Petitioner admitted that she knew that the lozenges contained a controlled substance.  IG Ex. 2 at 6.  She also admitted that the lozenges had been obtained through improper means.  IG Ex. 2 at 6.  Therefore, there can be no doubt that Petitioner’s criminal conviction was related to the distribution or dispensing of a controlled substance. 

Petitioner offers a variety of facts surrounding her criminal conduct, presumably to show that it was not related to the distribution or dispensing of a controlled substance.  Petitioner testified that she was eager to assist the clinic in its mission to help addicts wean off harmful and deadly opioids.  P. Ex. 7 ¶¶ 3-4.  Petitioner also indicated that, as a receptionist, she had no supervisory or managerial role and that she followed the direction of others.  P. Ex. 7 ¶ 5.  In support of these statements, Petitioner submitted a letter from a private investigator hired to assist in her defense.  The investigator stated that, as a former Federal Bureau of Investigations special agent, he evaluated Petitioner to be wholly concerned with helping addicts and did not understand that her actions violated federal law.  P. Ex. 6 at 33.  Petitioner also submitted a significant number of statements and documents as to her volunteer activities.  P. Exs. 5-6.  

I am limited to determining if the IG had a legitimate basis for imposing an exclusion.  42 C.F.R. § 1001.2007(a)(1)(i).  Although the IG imposed a “permissive” exclusion, I cannot review the IG’s discretion to exclude an individual under 42 U.S.C. § 1320a-7(b).  42 C.F.R. § 1005.4(c)(5).  Further, to the extent that Petitioner attempts to undermine the factual basis for her underlying conviction, I must reject those efforts as impermissible collateral attacks on her criminal conviction.  42 C.F.R. § 1001.2007(d). 

In the present matter, the factual basis agreed to by the parties to the criminal case includes Petitioner providing a controlled substance to an individual who had not yet been seen by a health care provider at the clinic.  Further, the controlled substance had been improperly obtained by the clinic.  Petitioner also provided more of the controlled substance to the individual before the individual left the clinic.  She agreed that she did these actions in her admission of knowingly possessing a controlled substance that had not been properly obtained.  IG Ex. 2 at 3.  Therefore, I conclude that Petitioner’s criminal conviction is related to the distribution or dispensing of a controlled substance.

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3. Petitioner is or has been employed in the health care industry. 

Petitioner worked in a drug treatment clinic at the time of her criminal conduct.  IG Ex. 2 at 5.  From 2019 through 2022, Petitioner worked as an admissions coordinator at Advanced Medical Medication Assisted Treatment Clinic.  P. Ex. 5 at 1.  Therefore, Petitioner “[i]s, or has ever been, employed in any capacity in the health care industry.”  42 C.F.R. § 1001.401(a)(3).

4. Petitioner must be excluded from participation in all federal health care programs for three years. 

When the IG excludes an individual under 42 U.S.C. § 1320a-7(b)(3):  

[T]he period of exclusion shall be 3 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. 

42 U.S.C. § 1320a-7(c)(3)(D).  I advised Petitioner that she would bear the burden of proving circumstances that mitigate the length of exclusion.  January 25 Order at 2; SPO ¶ 6. 

In this case, the IG did not allege the existence of any aggravating circumstances.  Petitioner alleged many reasons why she thinks that the length of exclusion should be reduced.  P. Br. at 5-10.  However, the only mitigating circumstance potentially available in this case is the following: 

Only the following factor may be considered to be mitigating and to be a basis for shortening the period of exclusion:  The individual’s or entity’s cooperation with Federal or State officials resulted in—

(i) Others being convicted or excluded from Medicare, Medicaid, and any other Federal health care program;

(ii) Additional cases being investigated or reports being issued by the appropriate law enforcement agency identifying program vulnerabilities or weaknesses; or

(iii) The imposition of a civil money penalty against others. 

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42 C.F.R. § 1001.401(c)(3). 
Petitioner argues the following: 

Petitioner was expressly willing to cooperate with federal officials, which would have resulted in “others being convicted or excluded from Medicare, Medicaid, and any other Federal health care program” and “the imposition of a civil money penalty against others” under § 1001.401(c)(3)(i) and (iii)—consequences that indeed did occur. (See Page 7 of Petitioner’s Appeal Brief; see also ¶¶ 10-11 of Petitioner’s Declaration Filed as Petitioner’s Exhibit 7 (Under Seal)).  Consequently, if the Petitioner’s exclusion is upheld, its length must be minimal. 

P. Reply at 4.  

While Petitioner asserts that she informed law enforcement of her willingness to cooperate, there is no evidence that her offer was accepted.  Further, while Petitioner asserts certain individuals were convicted of crimes, there is no evidence that Petitioner had a role in those convictions.  See P. Ex. 7 ¶¶ 10-11. 

Petitioner’s cooperation and the results of that cooperation (e.g., additional cases being investigated, convictions obtained) must be validated to be a mitigating circumstance.  Stacey R. Gale, DAB No. 1941 at 10-11 (2004); see 63 Fed. Reg. 46,676, 46,681 (Sept. 2, 1998); 57 Fed. Reg. 3298, 3315 (Jan. 29, 1992). 

The record does not validate that Petitioner cooperated with law enforcement.  See IG Ex. 2 at 2 (list of “Defendant’s Obligations”), 6-9 (agreed sentencing factors included acceptance of responsibility but not cooperation with prosecutors).  Further, Petitioner admitted that her offer to cooperate was “not a qualifying regulatory basis for mitigation under 42 CFR [§] 1001.401(c)(3).”  P. Br. at 7.  Therefore, I conclude that Petitioner did not meet her burden to prove a mitigating circumstance and that Petitioner must be excluded for three years. 

VII.    Conclusion

I affirm the IG’s determination to exclude Petitioner for three years.

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Endnotes

¹ Specifically, I admit the versions of Petitioner Exhibits 1 through 6 found in E-File Document No. 6 and the version of Petitioner Exhibit 7 found in E-File Document No. 9. 

² The District Court’s original Judgment in a Criminal Case incorrectly indicated that the judgment was issued April 18, 2021.  IG Ex. 4 at 1.