The opinion of the court was delivered by: Leon Jordan United States District Judge
This civil action is before the court on the parties' dispositive motions. The defendant has filed a "Motion to Dismiss, or in the Alternative, for Summary Judgment" [doc. 7], to which the plaintiff has responded and filed a cross motion for summary judgment [docs. 14 and 15]. The defendant has filed a response to the plaintiff's cross motion and a reply [doc. 18]. The court finds that oral argument is not necessary, and the motions are ripe for the court's consideration. For the reasons discussed below, the defendant's motion for summary judgment will be granted, and the plaintiff's cross motion for summary judgment will be denied.
On February 28, 2006, the plaintiff, Dr. Henry Gupton, was notified by the Office of the Inspector General for the United States Department of Health and Human Services ("DHHS") that he "was being excluded from participation in any capacity in Medicare, Medicaid, and all Federal health care programs . . . for the minimum statutory period of 5 years." A.R. at 63-64 (emphasis in original).*fn1
The exclusion was based on the plaintiff's "conviction" in Criminal Court, Anderson County, Tennessee, related to the delivery of an item or service under the Medicare or a state health care program. The plaintiff promptly requested a hearing before an administrative law judge who ruled in favor of DHHS and upheld the exclusion. A.R. at 1-7. The plaintiff appealed the ALJ's decision, and a three-member panel of the Appeals Board affirmed the exclusion. A.R. at 8-21. However, because the plaintiff had not been afforded oral argument before the three-member panel, the matter was reopened to allow oral argument. Following oral argument, the panel again upheld the plaintiff's exclusion. A.R. at 22-28. Thereafter, the plaintiff filed this civil action arguing that he has not been convicted of any crime and his constitutional rights have been violated.
Dr. Gupton, a medical doctor, practiced family medicine in Clinton, Tennessee, prior to his exclusion by DHHS. In his affidavit submitted to DHHS, Dr. Gupton stated:
During the course of my practice at Clinton Family Physicians, I began to receive specific and repeated threats of violence against me and my family by a patient who sought to procure prescriptions for a controlled substance. This patient made me aware that he had access to various weapons and specifically referenced his expertise with explosives, military weaponry, and other incendiary devices on a number of occasions. On more than one occasion, this patient commented specifically on how some of these deadly weapons could harm me or my family, such as for example, booby trapping my car. There were occasions when the patient would wait for me to leave my office at night when no one else was around and threaten me in the parking lot. There were also other occasions when this patient would also follow me or my family during trips to and from our home and then tell me of our movements in order to intimidate me. During this time, my children were very young. As a result of these threats, I feared for my life and for the lives of my family members, including my wife and small children.
A.R. at 103. Dr. Gupton called the local police who told him that the threats could not be prosecuted, a fact that was verified by the Assistant District Attorney. Dr. Gupton finally gave into the threats and wrote prescriptions for Ritalin. The prescriptions were filled at a pharmacy reimbursed by TennCare, a state health care program.
Dr. Gupton was indicted by the Anderson County grand jury on eight counts related to TennCare fraud. His nolo contendere plea to one charge of attempted TennCare fraud was accepted (A.R. at 65), and the remaining counts were dismissed because the Assistant District Attorney believed the threats occurred and would support a duress defense to the charges. A.R. at 135-38. By agreement with the District Attorney's office and with approval from the state court, Dr. Gupton was placed on a sixty-day diversion. Dr. Gupton successfully completed the diversionary period, all charges were dismissed, and all records relating to the charges were expunged. A.R. at 33, 97-100.
C. Relevant Statutory Provisions
The plaintiff was excluded from participation in federal health care programs pursuant to 42 U.S.C. § 1320a-7. The relevant parts of that statute are as follows:
The Secretary shall exclude the following individuals and entities from participation in any Federal health care program (as defined in section 1320a-7b(f) of this title): . . . .
Any individual or entity that has been convicted of a criminal offense related to the delivery of an item or service under subchapter XVIII of this chapter or under any State health care program.
42 U.S.C. § 1320a-7(a)(1). [I]n the case of an exclusion under subsection (a) of this section, the minimum period of exclusion shall be not less than five years . . . .
42 U.S.C. § 1320a-7(c)(3)(B). "Convicted" defined For purposes of subsections (a) and (b) of this section, an individual or entity is considered to have ...