SUBJECT:

Howard Wertheim,

Petitioner,

The Inspector General.

DECISION

Howard Wertheim (Petitioner) appeals the decision of the Inspector General (I.G.), made pursuant to section 1128(a)(4) of the Social Security Act (Act), to exclude him from participation in Medicare, Medicaid, and all federal health care programs for a period of five years. For the reasons discussed below, I find that the I.G. is authorized to exclude Petitioner, and that the statute mandates a minimum five-year exclusion.

I. Background

By letter dated November 30, 2004, the I.G. notified Petitioner of his decision to exclude him from program participation for five years. The letter explained that the exclusion action was taken pursuant to section 1128(a)(4) of the Act because Petitioner was convicted of a felony offense relating to the unlawful manufacture, distribution, prescription, or dispensing of a controlled substance. I.G. Exhibit (I.G. Ex.) 1. In a letter dated January 5, 2005, Petitioner timely requested review, and the matter has been assigned to me for resolution. I held a telephone prehearing conference on February 8, 2005, at which Petitioner was represented by counsel. I determined that the issues before me were legal issues for which an in-person hearing is not required and set a briefing schedule. Order (March 4, 2005).

Pursuant to my scheduling order, on March 29, 2005 (received March 30), the I.G. submitted his Brief in Support of Motion for Summary Judgment, with five exhibits attached, I.G. Exhibits (I.G. Exs.) 1 - 5. I granted Petitioner a short extension of time in which to respond, and, on May 12, 2005 (received May 18), Petitioner filed his response (P. Br.), with eight exhibits attached, Petitioner's Exhibits (P. Exs.) 1 - 8. The I.G. submitted a reply on June 8, 2005 (received June 9). There being no objections, I.G. Exs. 1 - 5 and P. Exs. 1 - 8 are admitted into evidence.

II. Issue

The sole issue before me is whether the I.G. had a basis upon which to exclude Petitioner from participation in the Medicare, Medicaid, and all federal health care programs. Because an exclusion under section 1128(a)(4) must be for a minimum period of five years, the reasonableness of the length of the exclusion is not an issue.

Petitioner has also raised some constitutional issues, and argues that the I.G. unreasonably delayed imposing the exclusion. ⁽¹⁾ I have no authority to review the constitutional issues, and, as discussed below, may not alter the I.G.'s timing of the exclusion.

III. Discussion

The critical facts of this case are not in dispute. Petitioner was a licensed pharmacist in New Jersey. On April 16, 2004, he pled guilty to felony counts of possessing and distributing controlled substances. He admitted that he sold Lorzapam tablets to an undercover investigator while performing his pharmacy duties. When arrested, he had in his pockets other controlled substances, Hydrocodone, Percocet, Loritab, and Adderall. I.G. Ex. 2.

A. 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 Act. ⁽²⁾

Section 1128(a)(4) of the Act requires that any individual or entity convicted of a felony criminal offense "relating to the unlawful manufacture, distribution, prescription, or dispensing of a controlled substance" be excluded from all federal health care programs. ⁽³⁾ Here, Petitioner concedes that he was convicted of a felony relating to the unlawful distribution, prescription or dispensing of a controlled substance, and is therefore subject to a five-year exclusion. P. Br. at 1.

B. The statute mandates a five-year minimum period of exclusion, and mitigating factors may not be considered to reduce that period of exclusion.

An exclusion under section 1128(a)(4) must be for a minimum mandatory period of five years. As set forth in section 1128(c)(3)(B) of the Act:

Subject to subparagraph (G), in the case of an exclusion under subsection (a), the minimum period of exclusion shall be not less than five years . . . .

When the I.G. imposes an exclusion for the minimum mandatory five-year period, the reasonableness of the length of the exclusion is not an issue. 42 C.F.R. � 1001.2007(a)(2).

C. I have no authority to change the effective date of Petitioner's exclusion.

Although he recognizes the mandatory nature of the five-year exclusion, Petitioner complains that the I.G. unreasonably "delayed" imposing the exclusion for nine months. Had the I.G. acted earlier, part of his period of exclusion would have coincided with the loss of his pharmacy license, which resulted in his not being able to participate in federal healthcare programs independent of an exclusion. Petitioner cites "mitigating factors" which, he argues, compel the I.G. to impose an earlier effective date of exclusion. However, it is well-settled that an administrative law judge is without authority to change the effective date of an exclusion. As a matter of law, an exclusion must become effective 20 days from the date of the I.G.'s notice of exclusion. 42 C.F.R. � 1001.2002. An administrative law judge has no authority to review the timing of the I.G.'s determination to impose an exclusion or to alter retroactively the date of the imposition of the exclusion. Tanya A. Chuoke, R.N., DAB No. 1721 (2000); Samuel W. Chang, M.D., DAB No. 1198 (1990); Susan Malady, R.N., DAB CR835 (2001), aff'd on other grounds, DAB No. 1816 (2002); Larry B. Shuster, R.Ph., DAB CR872 (2002); Kathleen E. Talbot, DAB CR772 (2001).

IV. Conclusion

For these reasons, I conclude that the I.G. properly excluded Petitioner from participation in Medicare, Medicaid, and all other federal health care programs, and I sustain the five-year exclusion.

Carolyn Cozad Hughes

Administrative Law Judge

1. Petitioner also argues that this issue as to the reasonableness of the "delay" creates disputes of material facts for which an in-person hearing is necessary. However, because I have no authority to review the timing of an exclusion, such facts are not material.

2. I make findings of fact and conclusions of law to support my decision in this case. I set forth each finding below, in italics, as a separate numbered or lettered heading.

3. "Federal health care program" is defined in section 1128B(f) of the Act as any plan or program that provides health benefits, whether directly, through insurance, or otherwise, which is funded directly, in whole or in part, by the United States Government, or any State health care program.