Wilton Clinton Meeks, III, DAB No. 3128 (2024)

FINAL DECISION ON REVIEW OF ADMINISTRATIVE LAW JUDGE DECISION

Wilton Clinton Meeks, III (Petitioner), a pharmacist, appeals the decision of an Administrative Law Judge (ALJ) upholding the determination of the Inspector General (I.G.) to exclude Petitioner from participating in all federal health care programs for seven years under section 1128(a)(3) of the Social Security Act (Act).¹  Wilton Clinton Meeks, III, DAB CR6356 (2023) (ALJ Decision).  The ALJ concluded that the I.G. had a lawful basis to exclude Petitioner based on a conviction for one felony count of “Acquiring a Controlled Substance by Misrepresentation, Deception or Subterfuge” in violation of 21 U.S.C. § 843(a)(3).  The ALJ also concluded that the seven-year duration of the exclusion was not unreasonable.  For the reasons explained below, we affirm the ALJ Decision.

Legal Background

Section 1128(a) of the Act mandates the exclusion of individuals who have been convicted of certain types of criminal offenses from participating in all federal health care programs.  Act § 1128(a)(1)-(4).²  Relevant here, section 1128(a)(3) requires the exclusion from participation in all federal health care programs any individual who “has been convicted for an offense which occurred after . . . 1996, under Federal or State law, in connection with the delivery of a health care item or service . . . of a criminal offense consisting of a felony relating to fraud, theft, embezzlement, breach of fiduciary

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responsibility, or other financial misconduct.”  Id. § 1128(a)(3) (42 U.S.C. § 1320a-7(a)(3)); see also 42 C.F.R. § 1001.101(c)(1).  Section 1128(a)(4) requires the exclusion from all federal healthcare programs of any individual who has been convicted of a felony criminal offense under federal or state law that relates “to the unlawful manufacture, distribution, prescription, or dispensing of a controlled substance.”  Act § 1128(a)(4) (42 U.S.C. § 1320a-7(a)(4)); see also 42 C.F.R. § 1001.101(d).  The term “convicted” includes, among other things, when a court accepts an individual’s guilty plea or enters a judgment of conviction.  See 42 C.F.R. § 1001.2 (defining “Convicted”).

The mandatory minimum period of an exclusion imposed under section 1128(a) is five years.  Act § 1128(c)(3)(B); 42 C.F.R. § 1001.102(a).  The exclusion period may be extended beyond the statutory minimum if any of the aggravating factors provided in the regulations apply, including, as relevant here:

(2) The acts that resulted in the conviction, or similar acts, were committed over a period of one year or more;

*        *        *

(6) The convicted individual or entity has a prior criminal, civil or administrative sanction record[.]

42 C.F.R. § 1001.102(b)(2), (6).

An excluded individual may challenge the exclusion by requesting a hearing before an ALJ.  42 C.F.R. § 1005.2(a).  When, as here, the exclusion is imposed under section 1128(a) for more than the minimum five-year period, the excluded individual may request a hearing only on the issues of whether the I.G. had a basis for the exclusion and whether the duration of the exclusion is unreasonable.  42 C.F.R. § 1001.2007(a)(1); Shaun Thaxter, DAB No. 3053, at 3 (2021).  When an exclusion is based on a criminal conviction, the basis for the underlying conviction is not reviewable or subject to collateral attack in the administrative appeal.  42 C.F.R. § 1001.2007(d).

A party dissatisfied with an ALJ decision may appeal the decision to the Board.  42 C.F.R. § 1005.21(a).  The Board may, among other actions, affirm, reverse, or remand any exclusion determined by the ALJ.  Id. § 1005.21(g).

Case Background

On August 1, 2018, Petitioner voluntarily surrendered his pharmacist license to the Georgia State Board of Pharmacy.  I.G. Ex. 5.  On February 5, 2019, by Information, the government charged Petitioner in the United States District Court, Southern District of Georgia, Augusta Division (District Court) with one count of acquiring a controlled

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substance by misrepresentation, deception, or subterfuge in violation of 21 U.S.C. § 843(a)(3).  I.G. Ex. 3.  The criminal count was based on the allegation that Petitioner “knowingly and intentionally acquired Oxycodone, a Schedule II controlled substance, by misrepresentation, deception, or subterfuge, to wit, that [Petitioner] acquired Oxycodone that [Petitioner] knew had not been prescribed to [Petitioner] from a pharmacy under [Petitioner’s] control for [Petitioner]’s personal use”, and that Petitioner did so “[b]eginning at least as early as January 1, 2017 and continuing until on or about July 1, 2018.”  Id.

On March 19, 2019, Petitioner pled guilty to the criminal count charged in the Information:  Acquiring a Controlled Substance by Misrepresentation, Deception, or Subterfuge in violation of 21 U.S.C. § 843(a)(3).  I.G. Ex. 6.  The elements of the offense charged in the Information, as stated in the plea agreement, were: (1) Petitioner acquired or obtained possession of a controlled substance; (2) Petitioner did so by misrepresentation, fraud, deception, or subterfuge; and (3) Petitioner did so knowingly and intentionally.  P. Ex. 4, at 1.  The plea agreement also recited the factual basis for the charge contained in the Information:

Beginning at least as early as January 1, 2017 and continuing until on or about July 1, 2018, in the Southern District of Georgia, [Petitioner] knowingly and intentionally acquired Oxycodone, a Schedule II controlled substance, by misrepresentation, deception, or subterfuge, to wit, that [Petitioner] acquired Oxycodone that [Petitioner] knew had not been prescribed to [Petitioner] from a pharmacy under [Petitioner]’s control for [Petitioner]’s personal use, in violation of Title 21 United States Code, Section 843(a)(3), and that [Petitioner]’s guilty plea constitutes proof as to that Count.

Id. at 2; see also I.G. Ex. 3.  Additionally, the plea agreement included the statement that Petitioner “agrees that he is, in fact, guilty of this offense.”  P. Ex. 4, at 1.  On September 6, 2019, the court entered judgment against Petitioner and sentenced Petitioner to a three-year term of probation.  I.G. Ex. 7.

On November 27, 2019, Petitioner and Petitioner’s pharmacy entered into a settlement agreement with the Drug Enforcement Administration (DEA).  P. Ex. 6.  The settlement agreement provided that it was neither an admission of liability by Petitioner or the pharmacy, nor a concession by the Government that its claims were not well founded, but required Petitioner and the pharmacy to pay, collectively, $150,000 to the DEA.  Id. at 2.

By letter dated April 29, 2022, the I.G. notified Petitioner of his exclusion from participation in Medicare, Medicaid, and all federal health care programs for eight years.  I.G. Ex. 1.  On August 15, 2023, after a hearing before the ALJ, the I.G. amended the Notice of Exclusion to reduce the length of Petitioner’s exclusion to seven years.

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Compare I.G. Ex. 1, at 1 with I.G. Ex. 11, at 1.³  The I.G. excluded Petitioner under sections 1128(a)(3) and (a)(4) of the Act due to Petitioner’s felony conviction in the District Court.  I.G. Ex. 1, at 1.  The I.G. increased the exclusion period to seven years  based on two aggravating factors:  the acts that resulted in the conviction occurred for over a period of one year or more from about January 2017 to about July 2018 (42 C.F.R. § 1001.102(b)(2)), and Petitioner had a prior criminal, civil or administrative sanction because on August 1, 2018, the Georgia State Board of Pharmacy accepted Petitioner’s voluntary surrender of license (42 C.F.R. § 1001.102(b)(6)).  Id. at 1-2.

ALJ Decision

Petitioner timely requested an ALJ hearing.  ALJ Decision at 3.  After a prehearing conference, the parties exchanged pre-hearing briefs and exhibits.  Id.  Petitioner proposed four witnesses and requested an oral hearing, over the I.G.’s objection.  Id.  The ALJ convened an oral hearing on February 1, 2023.  Id.  Thereafter, the parties submitted post-hearing briefs and exhibits (including the I.G.’s amended Notice of Exclusion, I.G. Ex. 11).  Neither party objected to the other’s proposed exhibits, and the ALJ admitted all 11 of the I.G.’s exhibits and all 18 of the Petitioner’s exhibits.  ALJ Decision at 4.

The ALJ affirmed the exclusion under section 1128(a)(3) and, as a result, found it unnecessary to address the basis for exclusion under section 1128(a)(4), affirmed the presence of two aggravating and no mitigating factors, and concluded that the seven-year exclusion period was not unreasonable.  ALJ Decision at 1, 11, 12-16, 16.  The ALJ concluded that the I.G. established a basis for Petitioner’s exclusion under section 1128(a)(3) of the Act because Petitioner was convicted of a felony relating to fraud and the offense was committed in connection with the delivery of a health care item or service.  Id. at 5-8.  The ALJ reasoned there was a nexus, or common-sense connection, between Petitioner’s felony conviction for acquiring a controlled substance by misrepresentation, deception or subterfuge and the element of fraud as used in section 1128(a)(3), which was the basis for Petitioner’s exclusion.  Id. at 7-8.  The ALJ explained, “Petitioner knowingly and intentionally took controlled substances for his own personal use that he knew he did not have a prescription for, and he hid these actions for at least eighteen months.”  Id. at 8 (citing P. Ex. 4, at 1-2).  The ALJ found that this conduct amounts to “at least a knowing, implied misrepresentation/concealment of a material fact” in that “Petitioner used his status and representation as an owner of a pharmacy and a pharmacist to obtain controlled substances he otherwise would not have

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been able to legally obtain without a prescription.”  Id. at 7-8, 8.  The ALJ concluded that Petitioner’s conduct “was only possible based on the representation – whether explicitly or implicitly – that the controlled substances will be distributed, dispensed, or administered” lawfully and would not be used for Petitioner’s personal consumption.  Id. at 8.

The ALJ further found that there was a nexus between Petitioner’s conviction and “the delivery of a health care item or service,” as required by section 1128(a)(3), rejecting Petitioner’s arguments “that there was no relation to health care” because “as the sole owner of his pharmacy the drugs belonged to him and . . . he did not seek reimbursement from the Medicare or Medicaid program.”  ALJ Decision at 8-9, 10.  The ALJ concluded that as the pharmacist and owner of the pharmacy, Petitioner “performed both management and administrative services with respect to drugs (a health care item).”  Id. at 11.  According to the ALJ, there is a clear connection between the conviction and the delivery of a health care item or service because “Petitioner took health care items in the form of controlled substances for personal use that were only in Petitioner’s possession for purposes of delivering health care items to patients with the appropriate prescription.”  Id.

The ALJ then concluded that because the I.G. established a basis to exclude Petitioner under section 1128(a)(3), Petitioner must be excluded for five years, and that it was unnecessary to decide whether section 1128(a)(4) was applicable.  ALJ Decision at 11.  Next, the ALJ concluded that the I.G. established two aggravating factors:  Petitioner’s acts resulting in conviction were committed over a period of one year or more and Petitioner had a prior criminal, civil or administrative sanction record.  Id. at 12 (citing 42 C.F.R. § 1001.102(b)(2) and (6)).  The ALJ determined that Petitioner did not establish any applicable mitigating factors.  Id. at 15-16.  Finally, the ALJ upheld the seven-year period of exclusion because it “falls within a reasonable range.”  Id. at 16.

Petitioner timely requested Board review of the ALJ Decision.

Standard of Review

The Board reviews a disputed issue of fact as to whether the ALJ “decision is supported by substantial evidence on the whole record.”  42 C.F.R. § 1005.21(h).  The Board reviews a disputed issue of law as to whether the ALJ decision “is erroneous.”  Id.; see also Guidelines – Appellate Review of Decisions of Administrative Law Judges in Cases to Which Procedures in 42 C.F.R. Part 1005 Apply (Guidelines), “Completion of the Review Process, ¶ c (available at https://www.hhs.gov/about/agencies/dab/different-appeals-at-dab/appeals-to-board/guidelines/procedures/index.html).  The Part 1005 regulations provide that the Board “will not consider any issue not raised in the parties’ briefs, nor any issue in the briefs that could have been raised before the ALJ but was not.”  42 C.F.R. § 1005.21(e).  The term “substantial evidence” means “such relevant

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evidence as a reasonable mind might accept as adequate to support a conclusion.”  Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consol. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)).

Analysis

Before the Board, Petitioner argues that as “the sole owner of his pharmacy” who used Oxycodone “to self-medicate,” Petitioner “owned the scheduled narcotics” and therefore “never sold [the drugs] or committed theft,” that “[t]here were no funds involved at all in this matter,” and “[t]here was no health care fraud or theft involved.”  P. Br. 2, 4.  According to Petitioner, the ALJ erred by concluding that the conviction violated section 1128(a)(3), because Petitioner’s “legal problems were related to his failure to keep proper records” and there is “no evidence that there was any action by [Petitioner] to defraud either the federal government under the Medicare statute or any state law or any health care agency.”  Id. at 4.  Petitioner contends that there was no “concealment” as used in a legal definition of fraud and that “someone cannot steal from himself.”  Id. at 5.  Petitioner also argues that the ALJ erred in concluding that two aggravating factors applied to lengthen the exclusion beyond five years.  Id. at 7-9.  Finally, Petitioner argues that the I.G.’s delay in acting on the exclusion is “constitutionally infirm and in violation of due process.”  Id. 9-10.

At the outset, we note that Petitioner raises the constitutional and due process arguments regarding the I.G.’s alleged failure to act promptly in imposing the exclusion for the first time before the Board.  P. Br. at 9-10.  Petitioner could have, but did not, present these arguments to the ALJ.  The regulations controlling these proceedings state that the Board “will not consider any issue not raised in the parties’ briefs, nor any issue in the briefs that could have been raised before the ALJ but was not.”  42 C.F.R. § 1005.21(e).  Therefore, the Board may not consider Petitioner’s constitutional and due process claims about the timing of the exclusion.  See Salman Ali, DPT and Roohi Ali, DPT, DAB No. 3048, at 13 (2021) (“Petitioners make no attempt to explain why they did not raise and could not have raised the argument below.  For this reason alone, we reject Petitioners’ contention that the ALJ erred[.]”); see also Charice D. Curtis, DAB No. 2430, at 6 (2011) (“We are barred by regulation from considering this argument because Petitioner did not raise it before the ALJ.”).  In any event, the Board has consistently held that the regulations governing exclusions do not authorize an ALJ, or the Board, to review the timing of a petitioner’s exclusion when the I.G. has delayed the imposition of an exclusion.  See, e.g., Randall Dean Hopp, DAB No. 2166, at 4 (2008) (three-year delay); Kevin J. Bowers, DAB No. 2143 (2008) (two-year delay); and Kailash C. Singhvi, M.D., DAB No. 2138 (2007) (five-year delay).

The Board’s authority in reviewing an ALJ’s Decision is limited to whether the ALJ’s findings of fact are supported by substantial evidence and whether the ALJ’s conclusions of law are erroneous.  See 42 C.F.R. § 1005.21(h); Curtis, DAB No. 2430 at 5 (“The

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regulations limit the ALJ’s review in this case to determining whether the I.G. had a basis for the exclusion, and further limit our review of an exclusion to evaluating whether the ALJ decision was free of legal errors and supported by substantial evidence.”).  For the reasons explained below, we conclude that none of Petitioner’s arguments have merit and that Petitioner has not shown that the ALJ erred in concluding that the I.G.’s determination to exclude Petitioner for seven years was not unreasonable.

I.      Petitioner’s arguments identify no grounds to reverse the ALJ’s conclusion that there is a basis to exclude Petitioner pursuant to section 1128(a)(3) of the Act, which is supported by substantial evidence and free of legal error. 

Petitioner’s primary argument is that Petitioner “had legal possession of the drugs that he used for self-medication,” “never sold or committed any theft” and “owned the scheduled narcotics that he used to self-medicate.”  P. Br. at 1, 2.  Petitioner emphasizes that the basis for the conviction could not be related to fraud because no evidence established that Petitioner “was illegally dealing in drugs, illegally dispensing or distributing drugs to any other person” nor were “funds involved at all in this matter.  There was no health care fraud or theft involved.”  Id. at 4.

Petitioner was convicted of acquiring a “controlled substance, by misrepresentation, deception, or subterfuge” in violation of 21 U.S.C. § 843(a)(3).  I.G. Ex. 3.  As we previously explained, the elements necessary to prove this offense include: (1) Petitioner acquired or obtained possession of a controlled substance; (2) Petitioner did so by misrepresentation, fraud, deception, or subterfuge; and (3) Petitioner did so knowingly and intentionally.  P. Ex. 4, at 1.  Thus, the criminal count under which Petitioner was charged and on which Petitioner’s plea was based did not require an element of theft.  See id.  As the ALJ noted, the Information made no mention of theft, either.  ALJ Decision at 6 (“The Information makes no mention of fraud or theft.”).  Any argument that Petitioner makes regarding the absence of theft from his conduct or that “[Petitioner] is one who cannot steal from himself” is irrelevant.  See P. Br. at 7.  Petitioner may not introduce into the statute an element which is not required to prove the charge only to argue against the statute’s plausibility.  Moreover, Petitioner has not provided an explanation or pointed to any legal authority that would establish how Petitioner could have legally acquired, possessed, or “owned” the schedule II controlled substance without a prescription for Petitioner’s personal use, rather than for the pharmacy’s business purposes.  As the ALJ noted, the controlled substances “were only in Petitioner’s possession for purposes of delivering the health care items to patients with the appropriate prescription.”  ALJ Decision at 11.  To the extent that Petitioner attempts to recharacterize the nature of the conviction in these administrative proceedings, the Board rejects this type of collateral attack on the underlying conviction.  See 42 C.F.R. § 1001.2007(d) (“When the exclusion is based on the existence of a criminal conviction . . . the basis for the underlying conviction . . . is not reviewable and the individual . . . may not collaterally attack it either on substantive or procedural grounds in this appeal.”); see Chaim Charles Steg, DAB No.

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3115, at 12 (2023) (“Having been convicted, Petitioner is precluded from re-litigating the criminal charges in administrative proceedings before the ALJ or the Board.”).

Petitioner argues that the criminal statute that formed the basis for the conviction uses the term “subterfuge” which, Petitioner argues, “is not fraud.”  P. Br. at 4.  Despite Petitioner’s attempt to parse the statute based solely on “subterfuge,” Petitioner does not challenge the ALJ’s explanation of how the structure of the criminal statue under which Petitioner was convicted supports the conclusion that Petitioner committed fraud for purposes of section 1128(a)(3).  See ALJ Decision at 5-11.  As the ALJ explained:

There is a nexus or common-sense connection between fraud and Petitioner’s felony conviction under 21 U.S.C. § 843(a)(3): the structure of the statute itself acknowledges the relatedness between fraud and misrepresentation, deception, and subterfuge as any one of these is sufficient to satisfy the second required element of the statute.

Id. at 7 (emphasis added).  Therefore, even assuming arguendo that there was an absence of subterfuge from Petitioner’s conduct, the circumstances of Petitioner’s felony conviction under 21 U.S.C. § 843(a)(3) provided a basis for exclusion under section 1128(a)(3).

Petitioner next challenges the ALJ’s reliance on Charice D. Curtis, DAB No. 2430 (2011), and argues that the present case is distinguishable given that the misconduct in Curtis “did have the effect of costing Medicare or Medicaid money which the statute was designed to prohibit.”⁴  P. Br. at 5.  Petitioner argues that Curtis and other decisions, including other ALJ decisions the ALJ cited, are not applicable because the crimes in those cases had a financial impact on Medicare or Medicaid.  Id. at 7.  In Erik D. DeSimone, R.Ph., DAB No. 1932 (2004), the Board rejected the proposition that section 1128(a)(3) requires fraud in connection with the Medicare or Medicaid program.  The Board there explained that section 1128(a)(3) “is written in the disjunctive to cover two different categories of felonies relating to ‘fraud, theft, embezzlement, breach of fiduciary responsibility or other financial misconduct.’”  DeSimone at 4; compare 42 C.F.R. § 1001.101(c)(1) with § 1001.101(c)(2).  The first category covers “any individual convicted of one of the listed felonies ‘in connection with the delivery of a health care item or service’[.]”  DeSimone at 4 (citing 42 C.F.R. § 1001.101(c)(1)).  The second category covers “any individual convicted of a listed felony with respect to any act or omission in a health care program operated by or financed in whole or in part by any Federal, State, or local government.”  Id. (citing 42 C.F.R. § 1001.102(c)(2)).

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Petitioner’s conviction falls into the first category of the statute and does not require that the felony conviction be for an act or omission involving federal or state Medicare or Medicaid funding.  Moreover, when considering the legislative history of section 1128(a)(3), the Board has concluded that there is “no suggestion that Congress intended to limit the scope of section 1128(a)(3) to only those criminal offenses where an individual has demonstrated a corrupt motive or achieved a substantial pecuniary gain.”  Breton Lee Morgan, M.D., DAB No. 2264, at 9 (2009) (“[T]he legislative history reveals that Congress intended the statute to be broadly applied to protect the program from individuals who are not trustworthy.”).  The ALJ’s citation to and reliance on Curtis was therefore not erroneous.

Finally, Petitioner argues that the ALJ improperly cited DeSimone and Andrew D. Goddard, DAB No. 2032 (2006), which upheld a section 1128(a)(3) exclusion based on a pharmacist’s felony conviction for theft of drugs from their employer, on the ground that Petitioner “owned the drugs that he used to self-medicate” and therefore “did not steal anything” because Petitioner “cannot steal from himself.”  P. Br. at 6-7.  Petitioner argues that the ALJ failed to consider this argument, but the ALJ, in concluding that “Petitioner’s felony offense was committed in connection with the delivery of a health care item or service” acknowledged Petitioner’s “arguments that as the sole owner of his pharmacy the drugs belonged to him,” ALJ Decision at 10, and ultimately determined that these arguments “are unavailing.”  Id.  As we have explained, it was not necessary for the ALJ to determine whether Petitioner committed theft to properly conclude that the I.G. established a basis to exclude Petitioner under section 1128(a)(3).  The ALJ needed only to determine whether Petitioner’s felony conviction was “an offense which occurred after . . . 1996, under Federal or State law, in connection with the delivery of a health care item or service . . . of a criminal offense consisting of a felony relating to fraud, theft, embezzlement, breach of fiduciary responsibility, or other financial misconduct.”  Act § 1128(a)(3).  Neither an ALJ nor the Board may read into the Act a required element, i.e. theft, that is not in the statute.  The ALJ properly determined that Petitioner was convicted of a felony offense related to fraud, in connection with the delivery of a health care item or service and did not err in citing DeSimone or Goddard.  See ALJ Decision at 11.

II.      The ALJ’s determination that a seven-year exclusion period is not unreasonable is supported by substantial evidence and free of legal error.

The ALJ concluded that the I.G. established the presence of two aggravating factors in sections 1001.102(b)(2) and (b)(6), which “together permit the IG to lengthen the exclusion beyond the five-year statutory minimum.”  ALJ Decision at 12.  We affirm the ALJ’s conclusion.

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A.    The acts that resulted in Petitioner’s conviction were committed over a period of one year or more – 42 C.F.R. § 1001.102(b)(2).

Petitioner challenges the ALJ’s determination that the acts that resulted in the conviction were committed over a period of one year or more.  P. Br. at 7.  Petitioner states that the admission in the plea agreement “that his self-medication terminated on or about July 1, 2018 does not establish that he committed any theft over a time greater than one (1) year as found by the [ALJ]” and repeats the argument that one cannot steal from one’s self.  P. Br. at 7-8.

This assertion does not accurately represent the ALJ’s determination, as the ALJ did not find that Petitioner committed theft, and correctly observed that a finding of theft is not required to support an exclusion, as discussed above.  Instead, as the ALJ observed, Petitioner’s plea agreement included a factual basis for the plea, which provided the time frame of Petitioner’s conduct.  ALJ Decision at 12.  Specifically, the plea agreement stated that “[b]eginning at least as early as January 1, 2017 and continuing until on or about July 1, 2018,” Petitioner engaged in conduct related to acquiring drugs for personal use for which he did not have a prescription.  P. Ex. 4, at 2.

Therefore, the ALJ’s finding that the “acts that resulted in Petitioner’s conviction were committed between January 1, 2017 and until on or about July 1, 2018 – a period of over one year” is supported by substantial evidence in the record.  We affirm the ALJ’s finding upholding the I.G.’s application of the aggravating factor in section 1001.102(b)(2).

B.    Petitioner had a prior criminal, civil, or administrative sanction record  - 42 C.F.R. § 1001.102(b)(6).

Petitioner challenges the ALJ’s application of 42 C.F.R. § 1001.102(b)(6), which relates to a prior criminal, civil, or administrative sanction, to individuals who seek treatment for their addiction.  P. Br. at 8.  Petitioner contends that the ALJ’s Decision “has the effect of discouraging individuals like [Petitioner] from seeking treatment and participating in programs offered by the Georgia Board of Pharmacy and others in the medical field who become addicted.”  Id.

Petitioner does not dispute the ALJ’s finding that on “August 6, 2018, Petitioner voluntarily surrendered his license to practice as a pharmacist in the state of Georgia.”  ALJ Decision at 13 (citing I.G. Ex. 5, at 1).  This administrative sanction had “the same effect as a license revocation” and was “considered a public record of a disciplinary action taken by the Georgia State Board of Pharmacy against Petitioner’s license with his consent.”  Id. (citing I.G. Ex. 5, at 1-2).  The ALJ’s finding that the I.G. had a basis to apply section 1001.102(b)(6) is supported by substantial evidence in the record.

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Petitioner’s contention that the ALJ Decision may discourage individuals from seeking treatment for addiction may reasonably be understood as a plea for a shorter exclusion period for equitable reasons.  Like ALJs, the Board is bound to follow the exclusion authorities.  Richard R. Jimenez, DAB No. 2986, at 6 (2020) (citing Ethan Edwin Bickelhaupt, M.D., DAB No. 2480, at 3 (2012)); see also 42 C.F.R. § 1005.4(c).  The Board has “no authority to provide equitable relief.”  John O. Dimowo, M.D., DAB No. 3101, at 11 (2023) (citing Mohammad Nawaz, M.D., & Mohammad Zaim, M.D., PA, DAB No. 2687, at 16 (2016)); see also Rita Patel, DAB No. 2884, at 7 (2018) (The Board “does not have the power to decline to apply a regulation based on equity alone.”), appeal dismissed, No. 2:19-cv-08925 (D.N.J. Mar. 3, 2020).

C.    A seven-year exclusion is not unreasonable.

Petitioner does not challenge the ALJ’s finding that there were no mitigating factors applicable in this case.  See ALJ Decision at 13-14.  Although Petitioner identifies no error in the ALJ Decision, Petitioner asserts that “additional penalties over and above the 5-years is arbitrary and capricious.”⁵  P. Br. at 8.

The ALJ determined that a seven-year exclusion period is “not unreasonable” based on the I.G. having established the presence of two aggravating factors under the circumstances of the case.  ALJ Decision at 16.  The ALJ reasoned that “the I.G.’s addition of two years to the [five-year mandatory] exclusionary period as a result of these two aggravating factors still falls within a reasonable range.”  Id.  The ALJ added that “Petitioner used his status as a pharmacist and the owner of a pharmacy to obtain access to opioids that he knew he did not have a lawful prescription to take, and he took them for his own personal use.”  Id.

An ALJ’s de novo review of an exclusion period that is longer than the five-year statutory minimum is limited to “determin[ing] whether it falls within a reasonable range based on any aggravating and mitigating factors and the circumstances underlying those factors.”  Yolanda Hamilton, M.D., DAB No. 3061, at 12 (2022) (citing Sushil Aniruddh Sheth, M.D., DAB No. 2491, at 5 (2012), appeal dismissed in part, summarily aff’d in part, No. 13-cv-00448, 2014 WL 11813597 (D.D.C. Jan 10, 2014), appeal dismissed, No. 14-5179, 2015 WL 3372286 (D.C. Cir. May 7, 2015)); Shaun Thaxter, DAB No. 3053, at 26-27 (2021).  An ALJ, or the Board, “may not substitute [its] judgment for that of the

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I.G. or determine a ‘better’ exclusion period.”  Steg, DAB No. 3115, at 13 (quoting Sheth, DAB No. 2491, at 5).  In view of the presence of two aggravating factors and the absence of mitigating factors, under the circumstances of this case, we find no error in the ALJ’s decision to sustain the seven-year exclusion imposed by the I.G.  We agree that a seven-year exclusion period is not unreasonable.

In sum, Petitioner has invoked essentially equitable considerations, including that Petitioner’s criminal conduct resulted from an addiction to opioids that were initially prescribed following surgery, caused no loss or harm to other individuals or health care programs, and that the court recognized these considerations in imposing “a probated sentence that was substantially shortened.”  P. Br. at 9.  As the ALJ recognized, while “Petitioner’s situation and the circumstances surrounding his addiction are sympathetic,” Petitioner “does not offer evidence of any of the mitigating factors authorized by 42 C.F.R. § 1001.102(c)” which are the only mitigating circumstances that ALJs and the Board, in their limited review, may apply to reduce the length of an exclusion.  ALJ Decision at 15; see Asim A. Hameedi, M.D., DAB No. 3087, at 20 (2023) (“The Board has no authority to treat the extenuating circumstances Petitioner cites as mitigating factors in addition to those established by regulation.”).

Conclusion

For the reasons stated above, we affirm the ALJ Decision.

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Endnotes

¹  Section 1128 of the Act is codified at 42 U.S.C. § 1320a–7.  The current version of the Act can be found at https://www.ssa.gov/OP_Home/ssact/ssact-toc.htm.  Each section of the Act on that website contains a reference to the corresponding United States Code chapter and section.  Cross-reference tables for the Act and the United States Code can be found at https://www.ssa.gov/OP_Home/comp2/G-APP-H.html.

²  The Secretary has delegated the exclusion authority in section 1128 to the I.G.  Act § 1128A(j)(2); 53 Fed. Reg. 12,993 (Apr. 20, 1988); 48 Fed. Reg. 21,662 (May 13, 1983).  The I.G in turn has issued regulations, codified in 42 C.F.R. Part 1001, implementing the delegated exclusion authority.  See 42 C.F.R. § 1001.1.  Those regulations apply to and bind the I.G. in imposing exclusions, and they also apply to and bind ALJs and the Departmental Appeals Board (Board) in reviewing exclusions imposed by the I.G.  Id. § 1001.1(b).

³  The I.G.’s initial Notice of Exclusion applied three aggravating factors to increase Petitioner’s exclusion period beyond the minimum five years.  I.G. Ex. 1, at 1-2.  The amended Notice of Exclusion withdrew the aggravating factor at 42 C.F.R. §1001.102(b)(9) (“[t]he individual or entity has been the subject of any other adverse action by any Federal, State, or local government agency or board if the adverse action is based on the same set of circumstances that serves as the basis for the imposition of the exclusion”).  I.G. Ex. 11.

⁴  The ALJ cited the holding in Curtis that section 1128(a)(3) is not limited to “felonies that constitute fraud or one of the other listed offenses” but “encompasses felonies ‘relating to’ fraud and other types of listed offenses.”  ALJ Decision at 6 (quoting Curtis, DAB No. 2430, at 4).

⁵  Petitioner’s use of the “arbitrary and capricious” standard of review of the ALJ’s determination is misplaced in this appeal.  That standard – “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law” – is defined in the Administrative Procedure Act (APA) as a standard of review for court review of final agency action on the record.  5 U.S.C § 706(2)(A); Benny R. Bailey, DAB No. 2935, at 10 (2019) (explaining the Board “is an appellate adjudicative body in an administrative appeal process.”).  The APA standard “is not the standard of review applicable to administration appeals of I.G. exclusions[.]”  Bailey at 10.