Pharmacy Times

A Pharmacist’s Exclusion from Federal Health Plans

Author: Joseph L. Fink III, BSPharm, JD


When a pharmacist pleads guilty to charges related to controlled substances and is then notified by federal authorities that he will be excluded from participating in federal health programs, can he avoid the consequences of his guilty plea?
ISSUE OF THE CASE

When a pharmacist is charged with a number of serious offenses related to controlled substances and enters into an agreement to plead guilty if the state will not oppose a deferred judgment, and subsequently is notified by federal authorities that he will be excluded from participating in federal health programs, can he avoid the onerous collateral consequences of his guilty plea?

FACTS OF THE CASE

A pharmacist who practiced on a part-time basis in a Midwestern state was the subject of a theft warrant. Upon his arrest, the police searched his vehicle and found 57 prescription containers. He initially told the police that he was a pharmacy technician and intended to destroy the medications. His employer had a different story, reporting to the police that the pharmacist did not have permission to remove the medication containers from the pharmacy. All this led to the pharmacist being charged with 3 felony counts of violating the state’s controlled substances statutes.

Following negotiations with state prosecutors, the pharmacist entered into a plea agreement: he would plead guilty to 3 felony counts plus 1 misdemeanor if the prosecutors would agree not to oppose his request that the court grant him a deferred judgment. A deferred judgment means that the court will hold off entering a final judgment on the matter if the defendant meets certain stipulated conditions within a specified period of time. Those conditions could include probation, community service, some form of community supervision, or participation in a diversion program or treatment program. The pharmacist was on supervised probation for 2 years and had to undergo random drug testing. Typically, if such conditions are met, the court that originally dealt with the matter may dismiss the case or expunge the record.

Following the handling of the case at the trial court level and the court’s approval of the plea agreement, the pharmacist received a letter from the federal government notifying him that he was being excluded “from eligibility to participate in any capacity in the Medicare, Medicaid, and all federal health care programs” as a result of his felony “convictions.” The “practical impact of the letter was that the defendant was virtually unemployable as a pharmacist.”

The pharmacist in the instant case did fulfill the conditions of probation and returned to the trial court to ask it to vacate the conviction. The trial court denied this request, and the pharmacist took the matter to the state supreme court. One of the arguments advanced on appeal was that he had ineffective assistance of counsel at the trial court level because he was not alerted to the possible collateral consequences of his guilty pleas (ie, exclusion from federal programs due to this state-level conviction).

THE COURT’S RULING

The state supreme court looked at the relevant state statutes governing post-conviction relief and agreed with the decision of the trial court that the conviction should not be vacated.

THE COURT’S REASONING

The state’s highest court presented a protracted and detailed discussion of the law of the state on the matter of post-conviction relief, but of greatest interest to pharmacy audiences is the discussion about collateral consequences. The court noted that “In recent years, there has been a striking growth of what is generally termed ‘collateral consequences’ that flow from a criminal conviction.” Federal law imposes dozens of sanctions on persons with felony drug convictions.

Addressing the issue of effective assistance of counsel, the court noted that “Recent developments in the law of the right to effective assistance of counsel have recognized the need for lawyers representing criminal defendants to advise their clients of the direct collateral consequences of a plea bargain.” It pointed to a US Supreme Court case in which an attorney failed to advise his client that entering a guilty plea to controlled substances offenses would result in his deportation, with that failure equating to ineffective assistance of counsel.

The bottom line for the state supreme court, after reviewing a long line of earlier case decisions, was that a guilty plea pursuant to a “deferred judgment” is not a conviction under the law of that state. It noted that some other states did indeed treat deferred judgments as convictions for purposes of post-conviction relief statutes, but that was not how the legislature in their state had approached the matter. As a result, the pharmacist had to live with the deal he had struck with the prosecutors.

Note: The Office of the Inspector General of the US Department of Health and Human Services reported that as of April, 2013, there were in excess of 51,000 individuals excluded from participation in federal health care programs. Such exclusions are typically for a stated period of time (eg, 5 years). The lesson from this case is that a defendant considering a possible plea agreement should discuss with competent counsel all possible ramifications of that action.


Dr. Fink is professor of pharmacy law and policy and Kentucky Pharmacists Association Endowed Professor of Leadership at the University of Kentucky College of Pharmacy, Lexington.