SUBJECT:

William D. Trusnovic, M.D.,

Petitioner,

The Inspector General.

DECISION

I sustain the determination of the Inspector General (I.G.) to exclude Petitioner, William D. Trusnovic, M.D., from participating in the Medicare, Medicaid, and all other federal health care programs, for a period of five years. I base my decision on the documentary evidence, the applicable law and regulations, and the arguments of the parties. It is my finding that Petitioner was convicted of " . . . a felony relating to the unlawful manufacture, distribution, prescription, or dispensing of a controlled substance," within the meaning of section 1128(a)(4) of the Social Security Act (Act).

This case is before me pursuant to a request for hearing filed by Petitioner on September 16, 2004. See 42 C.F.R. � 1001.2007.

By letter dated August 31, 2004, the I.G. notified Petitioner that he was being excluded from participating in the Medicare, Medicaid, and all federal health care programs as defined in section 1128B(f) of the Act for the statutory minimum period of five years.

The I.G. informed Petitioner that the action was taken under section 1128(a)(4), due to his conviction of a criminal offense as defined in section 1128(i) of the Act, related to the unlawful manufacturing, distribution, prescription, or dispensing of a controlled substance.

The parties agreed that this matter could be decided based on written arguments and documentary evidence, and that an evidentiary hearing was unnecessary. Each side has made written submissions in support of their respective contentions. ⁽¹⁾ The I.G. submitted five proposed exhibits. These have been identified as I.G. Exs. 1-5. Petitioner proposed no exhibits. I admit I.G. Exs. 1-5.

I find, as I explain in detail below, that William D. Trusnovic is a medical doctor, who was convicted in the State of Ohio, Court of Common Pleas, Jefferson County, of a felony offense related to the unlawful, manufacture, distribution, prescription, or dispensing of a controlled substance.

Whether the I.G. had a basis upon which to exclude Petitioner from participating in the Medicare, Medicaid, and all other federal health care programs.

Section 1128(a)(4) of the Act authorizes the Secretary of Health and Human Services (Secretary) to exclude from participation in any federal health care program (as defined in section1128B(f)of the Act), any individual convicted under federal or State law, of a criminal offense relating to the manufacture, distribution, prescription, or dispensing of a controlled substance.

The exclusion under section1128(a)(4) of the Act must be for a minimum period of five years. Section 1128(c)(3)(B) of the Act. However, aggravating factors can serve as a basis for lengthening the period of exclusion. 42 C. F. R. � 1001.102(b).

Pursuant to 42 C. F. R. � 1001.2007, a person excluded under section 1128(a)(4) may file a request for hearing before an Administrative Law Judge.

The findings of fact and conclusions of law enumerated below are followed by a discussion of each finding.

1. Petitioner, William D. Trusnovic, is a medical doctor who was convicted of a criminal offense relating to the manufacture, distribution, prescription, or dispensing of a controlled substance pursuant to section1128(a)(4) of the Act.

The Petitioner is a medical doctor, licensed in the State of Ohio. On February 11, 2003, the Prosecuting Attorney for Jefferson County, State of Ohio, filed a Bill of Information in the Court of Common Pleas charging Petitioner with 48 Counts of drug related offenses. I.G. Ex. 2. On February 14, 2003, Petitioner entered a guilty plea to all 48 Counts and the Court accepted such plea. I.G. Ex. 2, at 15. Based on the Court's finding that drug or alcohol usage was a factor leading to Petitioner's criminal behavior it was determined that he was qualified for intervention in lieu of conviction within the meaning of the Ohio Revised Code. See OH ST � 2951.13(B)(2)(b). Consequently, all proceedings were stayed and Petitioner was ordered to complete three years of rehabilitation under the supervision and control of the Jefferson County Adult Probation Department and Alcohol & Mental Health Counseling Inc. I. G. Ex. 3.

On August 27, 2004, the Court determined that Petitioner had successfully completed the intervention plan and proceeded to dismiss the case and issue a discharge. ALJ Ex. 1. ⁽²⁾

Petitioner contends that he has not been convicted of any crime in any jurisdiction. He maintains that the original Indictment and Bill of Information have been dismissed. See ALJ Ex. 1; Petitioner's brief ( P. Br.) at 1. From these arguments, I infer that it is Petitioner's position that an exclusion cannot be sustained under Ohio's statutory scheme, because the court's finding of eligibility for intervention in lieu of conviction cannot be construed as a "conviction" as that term is defined in 42 U.S.C. � 1320a-7(i).

The threshold question to be decided is whether Petitioner was convicted of a criminal offense relating to the manufacture, distribution, prescription, or dispensing of a controlled substance pursuant to section 1128(a)(4) of the Act. The Act provides that, for purposes of an exclusion under section1128(a)(4), an individual is considered "convicted" of a criminal offense-

(1) when a judgment of conviction has been entered against the individual or entity by a Federal, State, or local court, regardless of whether there is an appeal pending or whether the judgment or conviction or other record relating to criminal conduct has been expunged;

(2) when there has been a finding of guilt against the individual or entity by a Federal, State, or local court;

(3) when a plea of guilty or nolo contendere by the individual or entity has been accepted by a Federal, State, or local court; or

(4) when the individual or entity has entered into participation in a first offender, deferred adjudication, or other arrangement or program where judgment of conviction has been withheld.

Section 1128(i) of the Act. In this case, Petitioner entered a plea of guilty to 48 counts of deception to obtain dangerous drugs, and the court accepted the plea. I.G. Ex. 3. Petitioner's argument that his guilty plea should not be construed as a conviction under section 1128(i) because the Bill of Information to which he pled guilty was dismissed is unavailing. See P. Br. at 2. The Act does not provide for such an exception, and Petitioner has advanced no legal foundation for his contention.

Under the Ohio Revised Code, section 2952.041, if an eligible offender, such as Petitioner, enters a plea of guilty or no contest, the state criminal court ". . . may stay all criminal proceedings and order the offender . . . [to a period of rehabilitation] . . . ." OH ST � 2951.041. I find that the Ohio "Intervention in Lieu of Conviction" procedures constitute a conviction for purposes of the I.G.'s exclusion authority under section 1128(i) of the Act.

Congress broadly defined the term "conviction" in order " . . . to ensure that exclusions from federally-funded health programs would not hinge on state criminal justice policies." Carolyn Westin, DAB No. 1381, at 3 (1993). So, the fact that a court's adjudication is not a "conviction" under state law is not controlling. Id. Petitioner must be deemed convicted under the broad language of section 1128(i) (4) of the Act regardless of whether the criminal case has been dismissed or the judgment or conviction or other record relating to criminal conduct has been expunged. When considering what constitutes a conviction for purposes of the I.G.'s exclusion authority, I must look to the federal statute and not to State law or its interpretation. Thus, I am bound by the Act's emphasis on the fact that the individual has been determined to be guilty whether by admission, nolo plea, or verdict, rather than the mechanism employed by the court to impose judgment. Those found guilty of a criminal offense relating to the manufacture, distribution, prescription, or dispensing of a controlled substance pursuant to section 1128(a)(4) of the Act cannot circumvent the federal exclusion provisions by availing themselves of creative sentencing procedures.

Petitioner's additional argument that, according to the Ohio Revised Code, the agreement to participate in intervention in Lieu of Conviction is not to be used as an exclusionary device under any terms, is without merit. P. Br. at 1. The I. G. is not bound by any agreement entered into by Petitioner in the criminal proceedings, nor can that agreement have a nullifying effect on the federal exclusion statute.

2. Petitioner's exclusion for a period of five years is the mandatory minimum period as a matter of law.

An exclusion under section 1128(a)(4) of the Act must be for a minimum mandatory period of five years. Act, section 1128(c)(3)(B). When the I.G. imposes an exclusion for the mandatory five-year period, the reasonableness of the length of the exclusion is not an issue. 42 C.F.R. � 1001.2007(a)(2). Consequently, I have no discretion to grant Petitioner's request for special dispensation in regard to the exclusion imposed by the I.G.

Conclusion

Sections 1128(a)(4) and 1128(c)(3)(B) of the Act mandate that Petitioner be excluded from Medicare, Medicaid, and all other federal health care programs for a period of at least five years because of his conviction of a criminal offense related to the unlawful manufacture, distribution, prescription, or dispensing of a controlled substance.

José A. Anglada

Administrative Law Judge

1. I have deemed Petitioner's two page letter dated December 26, 2004, to be his brief in this case.

2. Neither party offered into evidence the August 27, 2004 "Judgment Journal Entry" of the Court of Common Pleas, Jefferson County, Ohio. I have, therefore, entered that document motu proprio as ALJ Ex. 1.