Does Medicare/Medicaid Exclusion Mean DEA Registration Denial? Not Always

If you, as a physician, were excluded from Medicare and Medicaid because you accepted a kickback, does this mean you could be denied a DEA registration in the future?

Based on the results of a recent matter we at Chapman Law Group handled, that is not necessarily the case.

Often, it’s about putting forth the strongest reasons as to why a DEA registration is needed; demonstrating how the physician has handled him-/herself since the exclusion to show he/she can be trusted; and having a credible colleague who can lend solid testimony to the matter.

Take our client, a physician who sought a DEA registration to administer controlled substances to the inmates at a state prison.

He had been forthright about his kickback conviction at every step.

He showed he had made strides to correct his actions and displayed sincere remorse.

And, in putting forth the assertion that without a DEA registration he would be doing more harm than good to his patients, both we and his medical colleague argued that he was not a threat to public health and safety.

As a result, his DEA registration approval demonstrates that a past conviction on one regulated matter — in this instance, Medicare and Medicaid exclusion — need not be a deterrent to get authorization for another.

A Sentencing, a New Career — and a DEA Roadblock

In 2016, our client, a Florida-based internal medicine physician, pleaded guilty to accepting a $700 kickback for referring a patient to a home health provider. He was sentenced to eight months’ confinement, ordered to pay nearly $55,000 in fees, fines and restitution, and was excluded from federal health care programs for the statutory minimum of five years.

He later obtained licensure in Maryland, Montana, New York and Pennsylvania, and took three continuing medical education courses on medical ethics.

Our client then was hired as the medical director and sole, full-time physician at the state prison in Somerset, Pennsylvania. This facility is where inmates from across the state would go for surgical procedures, oncology care and end-of-life care. In addition, our client provided care to approximately 300 of Somerset’s 2,600 inmates, and he saw upward of 45 patients daily.

His DEA registration, which was issued in 2004, had expired in 2016, so the state prison system’s regional director asked him to get a new one.

The DEA, however, in its order to show cause, said registration denial was warranted because of our client’s Medicare and Medicaid exclusion. It further argued that “the underlying conviction that led to mandatory exclusion does not need to involve controlled substances to support sanction.”

No DEA Registration ‘Adversely Impacts the Quality of Medical Care’

Without a DEA registration, we contended, inmates who needed immediate medical attention would need to wait, at times, up to 72 hours before medication could be obtained — and would “suffer needlessly while the facility locates a provider [to] write a prescription for a controlled substance.”

The regional director testified that our client was “‘one of our top physicians,’” praised “the fine quality of work” he did at the prison, and noted that not having a DEA registration “adversely impacts the quality of medical care he is able to provide to the inmates.”

In addition, we stated that the licensing authorities in Maryland, Montana, New York and Pennsylvania do not perceive our client “‘as a threat to public safety and believe … his unfettered licensure is consistent with public interest.’”

Finally, we argued, the government was unable to prove, “‘by a preponderance of the evidence,’” that our client’s DEA registration should be denied solely because of his Medicare/Medicaid exclusion.

DEA Registration Denial ‘Would Simply Be Added Punishment’

In his recommendation that our client be granted a DEA registration, “without further delay,” the U.S. Administrative Law Judge noted that our client:

  • Never had any negative experiences in dispensing controlled substances, nor did he “fail to comply with any state or federal laws concerning controlled substances.”
  • Never faced any “allegations of any other conduct that may threaten the public health and safety” outside of the kickback and resulting medical exclusion, and his kickback misconduct “was not related to controlled substances.”
  • “[S]tipulated to the accuracy” of the Medicare/Medicaid exclusion.

In addition, his accepting responsibility for his actions was “sincere and unequivocal”; he “demonstrated sincere remorse”; and, most tellingly, “denying his application would not be remedial in nature, it would simply be added punishment.” (Emphasis added.)

We Are Your Experts for DEA Matters

Our health care lawyers Chapman Law Group are well-versed and have earned a reputation for achieving positive results for physicians, pharmacists, dentists, veterinarians, and other licensed health care providers who are confronted with DEA matters.

As this case shows, our criminal law attorneys have helped applicants with criminal convictions and prior disciplinary actions obtain a DEA registration. We also have successfully helped registrants obtain DEA registrations following a suspension by the DEA or surrender of their registration. In addition, we assist practitioners and their practice with routine DEA audits and inspections, as well as investigations into violations of the Controlled Substances Act.

When you’re facing actions that threaten your DEA registration, we are here to fight them. Contact us today and let us put our expertise to work for you.

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Ronald W. Chapman Sr., M.P.A., LL.M.

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