Federal Register, Volume 76, Number 149, August 3, 2011, Pages 46595-47054 Page: 46,847
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Federal Register/Vol. 76, No. 149/Wednesday, August 3, 2011 /Notices
of health care, or * * * a State health
care program, for reasons bearing on the
individual's or entity's professional
competence, professional performance,
or financial integrity," Id. 1320a-
7(b)(5), where an entity is "controlled
by a sanctioned individual," Id.
1320a-7(b)(8),1 and where an
individual or entity has failed to "fully
and accurately make any disclosure
required by [42 U.S.C. 1320a-3,
1320a-3a, or 1320a-5]." Id. 1320a-
7(b)(15).
As the foregoing demonstrates, in
granting the Secretary authority to
exclude providers from participating in
Federal health care programs, Congress
created two distinct categories of
exclusion. When, however, in 1987
Congress amended section 304 of the
Controlled Substances Act to authorize
the Attorney General to suspend or
revoke a registration based on a
provider's having "been excluded (or
directed to be excluded) from
participation in" a Federal health care
program, it provided that the exclusion
must be "pursuant to section 1320a-
7(a)." 21 U.S.C. 824(a)(5).
By its plain terms, section 824(a)(5)
therefore limits the Attorney General's
authority to revoke a registration based
on an entity's exclusion from any
Federal health care program to only
those instances in which an individual
or entity has been mandatorily
excluded. See 42 U.S.C. 1320a-7(a). If
Congress had intended that revocation
of a DEA registration was warranted
whenever a provider has been excluded
from participation in a Federal health
care program, it could have easily done
so in the statutory text.
o10 This paragraph provides that:
Any entity with respect to which the Secretary
determines that a person-
(A)(i) who has a direct or indirect ownership or
control interest of 5 percent or more in the entity
or with an ownership or control interest (as defined
in [42 U.S.C. 1320(a)(3)]) in that entity,
(ii) who is an officer, director, agent, or managing
employee (as defined in [42 U.S.C. 1320a-5(b)]) of
that entity; or
(iii) who was described in clause (i) but is no
longer so described because of a transfer of
ownership or control interest, in anticipation of (or
following) a conviction, assessment, or exclusion
described in subparagraph (B) against the person, to
an immediate family member (as defined in
subsection (j)(1)) or a member of the household of
the person (as defined in subsection (j)(2)) who
continues to maintain an interest described in such
clause-
is a person-
(B)(i) who has been convicted of any offense
described in subsection (a) or in paragraph (1), (2),
or (3) of this subsection;
(ii) against who a civil monetary penalty has been
assessed under [42 U.S.C. 1320a-7a or 1320a- 8];
(iii) who has been excluded from participation
under a program under [42 U.S.C. 1395 et seq.] orunder a State health care program.
42 U.S.C. 1320a-7(b)(8).It is undisputed that both Duncan
Fordham and the corporate entity,
Fordham, Inc., were convicted of
healthcare fraud in violation of 18
U.S.C. 1347. GXs 14 & 15. While
Fordham and his corporation were
terminated as a Medicaid provider by
the Georgia DCH (and not the Secretary),
it is clear that his and his corporation's
respective convictions constitute a
"[f]elony conviction relating to health
care fraud" and fall within the
Secretary's "mandatory exclusion"
authority. 42 U.S.C. 1320a-7(a)(3).
It is also clear, however, that neither
Terese Fordham nor Respondent has
been convicted of any offense, let alone
one which would subject them to the
Secretary's mandatory exclusion
authority. See 42 U.S.C. 1320a-7(a).
Moreover, none of the other grounds
which were alleged by the State for
excluding Respondent from
participation in Medicaid (providing
materially false information, being the
alter ego of Duncan Drugs, and failing to
provide documentation requested by
DCH, see GX 7, at 1), subjected it to
mandatory exclusion by the Secretary.
See Id. Indeed, even the allegation that
Respondent is the alter ego of Duncan
Drugs (and is controlled by Duncan
Fordham) appears to have been
specifically addressed by Congress in
section 1320a-7(b)(8), which applies to
"[e]ntities controlled by a sanctioned
individual." Id. 1320a-7(b)(8).
However, as explained above, this
ground falls within the Secretary's
"permissive exclusion" authority and,
as such, is outside of the scope of the
Attorney General's authority under
subsection 824(a)(5). 21 U.S.C. 824(a)(5).
Moreover, the Government does not cite
any decision of the Secretary holding
that an entity that is deemed to be the
alter ego of an entity which has been
convicted of an offense subject to the
"mandatory exclusion" authority is
likewise subject to that authority.
The Government's brief does not
address the applicability of subsection
824(a)(5) to its contention. However, in
subsection 824(a)(5), Congress
specifically addressed the
circumstances in which an exclusion by
the Secretary is grounds for the
revocation of a DEA registration. As the
Supreme Court has long explained, "[a]
specific provision controls over one of
more general application." Gozlon-
Peretz v. United States, 498 U.S. 395,
407 (1991) (citing Crawford Fitting Co.
v. J.T. Gibbons, Inc., 482 U.S. 437, 445
(1987)); see also Bloate v. United States,
130 S.Ct. 1345, 1354 (2010) (quoting D.
Ginsberg & Sons, Inc. v. Popkin, 285
U.S. 204, 208 (1932) ("General languageof a statutory provision, although broad
enough to include it, will not be held to
apply to a matter specifically dealt with
in another part of the same
enactment.")). This rule of construction
provides reason alone to reject the
Government's assertion.
The Government's construction fails
for other reasons. First, it ignores the
history of the CSA. As originally
enacted, the CSA limited the Attorney
General's authority to revoke a
registration to three circumstances: (1)
Where a registrant had materially
falsified an application for registration
under either subchapter I (the CSA) or
subchapter II (the Import and Export
provisions, 21 U.S.C. 951-971); (2)
where a registrant had been convicted of
a felony under either subchapter I or II,
"or of any State [or other Federal law],
relating to any substance defined in this
title as a controlled substance"; and (3)
where a registrant no longer has
authority under State law to
manufacture, distribute or dispense
controlled substances. Comprehensive
Drug Abuse Prevention and Control Act
of 1970, Public Law 91-515, 304(a), 84
Stat. 1437, 1460 (1970) (codified as
amended at 21 U.S.C. 824(a)).
Congress did not grant the Attorney
General authority to revoke on public
interest grounds until 1984, when it
enacted the Drug Enforcement
Amendments to the Comprehensive
Crime Control Act of 1984. See Public
Law 98-473, 512, 98 Stat.1838, 2073
(1984). Congress then explained that the
"[i]mproper diversion of controlled
substances by practitioners is one of the
most serious aspects of the drug abuse
problem. However, effective Federal
action against practitioners has been
severely inhibited by the limited
authority in current law to deny or
revoke practitioner registrations." H.R.
Rep. No. 98-1030, at 266 (1984),
reprinted in 1984 U.S.C.C.A.N. 3182,
3448. Continuing, the House Report
explained that:
because of a variety of legal, organizational,
and resource problems, many States are
unable to take effective or prompt action
against violating registrants. Since State
revocation of a practitioner's license or
registration is a primary basis on which
Federal registration may be revoked or
denied, problems at the State regulatory level
have had a severe adverse impact on Federal
anti-diversion efforts. The criteria of prior
felony drug conviction for denial or
revocation of registration has proven too
limited in certain cases as well, for many
violations involving controlled substances
which are prescription drugs are not
punishable as felonies under State law.
Moreover, delays in obtaining conviction
allow practitioners to continue to dispensedrugs with a high abuse potential even where
there is strong evidence that they have46847
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United States. Office of the Federal Register. Federal Register, Volume 76, Number 149, August 3, 2011, Pages 46595-47054, periodical, August 3, 2011; Washington D.C.. (https://digital.library.unt.edu/ark:/67531/metadc52326/m1/261/: accessed April 25, 2024), University of North Texas Libraries, UNT Digital Library, https://digital.library.unt.edu; crediting UNT Libraries Government Documents Department.