Morgan v. Sebelius, No. 10-2270

Decided: June 14, 2012

The Fourth Circuit Court of Appeals affirmed a district court order dismissing Breton Lee Morgan’s action challenging his exclusion from participating in Medicare, Medicaid, and all other federally sponsored health care programs pursuant to 42 U.S.C.A. § 1320a-7(a)(3).

Morgan is a licensed medical physician in West Virginia.  He pled guilty to one count of violating 21 U.S.C. § 843(a)(3) for “knowingly or intentionally . . . acquir[ing] or obtain[ing] possession of a controlled substance by misrepresentation, fraud, forgery, deception, or subterfurge.”  Morgan accepted samples hydrocodone from pharmaceutical representatives for his personal use while representing to the pharmaceutical representatives that he would give the samples to his patients for medical purposes.  Morgan was sentenced to thirty days imprisonment and three months of supervised release.  Morgan was then notified that he would be excluded for five years from participating in Medicare, Medicaid, and all other federal health-care programs, pursuant to 42 U.S.C.A. § 1320a-7(a)(3).  This statute requires the exclusion to be imposed on “[a]ny individual or entity that has been convicted for an offense which occurred after August 21, 1996, under Federal or State law, in connection with the delivery of a health care item or service” if that offense consists of a “felony relating to fraud, theft, embezzlement, breach of fiduciary responsibility, or other financial misconduct.” Morgan appealed, arguing that a conviction must be for an offense that relates to financial misconduct to warrant exclusion.  Morgan argued his offense did not include financial misconduct because he had neither a corrupt motive nor received any substantial pecuniary benefit.

The Fourth Circuit rejected this argument because Morgan was convicted to a fraud-related felony in connection with the delivery of health care.  42 U.S.C.A. § 1320a-7(a)(3) makes clear that exclusion is warranted when an offense relates to at least one of five categories: (1) fraud, (2) theft, (3) embezzlement, (4) breach of fiduciary responsibility, or (5) other financial misconduct.  The presence of “other” financial misconduct simply means that the other four categories can themselves relate to financial misconduct.  Morgan’s interpretation would render much of the statutory language superfluous, and would not serve the statute’s purpose. The statute is unambiguous regarding the question presented, and thus the statute’s plain meaning controls.

Full Opinion

-Jenna Hendricks

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