SUBJECT:

Darwin P. Whitaker,

Petitioner,

The Inspector General.

DECISION

Darwin P. Whitaker (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, 2005, 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 December 12, 2005, Petitioner timely requested review, and the matter has been assigned to me for resolution. I held a telephone prehearing conference on February 23, 2006, at which Petitioner, who was represented by counsel, conceded that he had been convicted of a felony and that his conviction fell within section 1128(a)(4). 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 (February 23, 2006).

Pursuant to my scheduling order, the I.G. submitted his Brief in Support of Motion for Summary Affirmance, with three exhibits attached, I.G. Exhibits (I.G. Exs.) 1 - 3. Petitioner filed his response (P. Br.), with four exhibits attached, Petitioner's Exhibits (P. Exs.) 1 - 4. The I.G. asked leave to file a reply brief for the purpose of responding to three issues raised in Petitioner's brief, and I granted that request. Petitioner objected to my affording the I.G. additional time in which to reply, noting that he mentioned these issues during the prehearing conference, and allowing a reply would only protract the matter unnecessarily. However, the I.G. filed his reply within days, so Petitioner has not been disadvantaged by any unnecessary delay.

There being no objections, I.G. Exs. 1 - 3 and P. Exs. 1 - 4 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.

In Petitioner's view, the fundamental issue here is the timing of this exclusion, which was imposed three and a half years after his conviction. Petitioner urges me to review that issue and argues that any regulation precluding such review violates the Social Security Act and the Constitution. As discussed below, I am bound by the Secretary's regulations. I may not alter the I.G.'s timing of an exclusion, no matter how apparently egregious, and I have no authority to review constitutional issues.

III. Discussion

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.

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.

The critical facts of this case are not in dispute. Petitioner was a licensed physician's assistant in Kentucky. Petitioner pled guilty to engaging in an agreement to unlawfully dispense and distribute measurable quantities of schedule III and IV controlled substances to "patients" and others without legitimate medical purposes and outside the scope of professional medical practice, a violation of 21 U.S.C. � 846. I.G. Ex. 2. Petitioner's criminal offense was based on conduct that occurred between March 21, 2000 and October 24, 2000, which is after August 21, 1996, the date of the enactment of the Health Insurance Portability and Accountability Act of 1996 (HIPAA). Id. The United States District Court, Eastern District of Kentucky, accepted Petitioner's plea of guilty on October 18, 2002 and entered a judgment of conviction against Petitioner. I.G. Ex. 3. Petitioner was sentenced to three months imprisonment and two years of probation. Id.

Section 1128(a)(4) of the Act requires that any individual or entity convicted of a felony criminal offense, that occurred after the date of the enactment of HIPAA, "relating to the unlawful manufacture, distribution, prescription, or dispensing of a controlled substance" be excluded from all federal health care programs. ⁽¹⁾ 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 7.

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. did not impose the exclusion until three and a half years after his conviction. Petitioner characterizes the I.G.'s action as "manifestly untimely," and argues that the I.G. has effectively imposed an eight and a half year exclusion. The regulations give me the authority to review the reasonableness of any period of exclusion in excess of five years. Petitioner also points out that he was convicted in a federal proceeding brought by a federal agency, and suggests that I.G. should therefore have known immediately of the conviction. P. Br. at 7-10; See 42 C.F.R. � 1001.2007(a)(1)(ii).

It is well-settled that an administrative law judge (ALJ) is without authority to change the effective date of an exclusion, no matter how inexplicable and unfair the delay may appear. By regulation, the ALJ may review only two issues: whether a basis exists for imposing the sanction; and, whether the length of the exclusion (in excess of the mandatory five years) is reasonable. 42 C.F.R. � 1001.2007(a)(1) and (2). Because the regulations do not explicitly afford him/her the authority to do so, the ALJ may not review the timing of the I.G.'s determination to impose an exclusion and may not 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); see also 42 C.F.R. � 1005.4(c)(1) (ALJ has no authority to find invalid or refuse to follow federal statutes or regulations).

Petitioner also argues that any bar to my reviewing the timing of the I.G.'s action violates the Fifth and Fourteenth Amendments to the United States Constitution. I do not have authority to review constitutional challenges. Susan Malady, DAB No. 1816 (2002).

IV. Conclusion

For these reasons, I conclude that the I.G. had the authority to exclude 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