I sustain the Inspector General's (I.G.) determination to exclude Dorothy Jane Vultaggio a/k/a Dorothy J. Voltaggio, Petitioner, from participation in Medicare, Medicaid, and all other federal health care programs for a five-year period pursuant to sections 1128(a)(3) and 1128(c)(3)(B) of the Social Security Act (Act).

I. BACKGROUND

This case is before me pursuant to a request for hearing filed on October 31, 2005, by Dorothy Jane Vultaggio, Petitioner. By letter dated August 31, 2005, the I.G. notified Petitioner that she was being excluded from participation in the Medicare, Medicaid, and all federal health care programs as defined in section 1128B(f) of the Social Security Act (Act) for the minimum period of five years. The I.G. informed Petitioner that her exclusion was imposed under section 1128(a)(3) of the Act, due to her conviction of a criminal offense (as defined in section 1128(i) of the Act) related to fraud, theft, embezzlement, breach of fiduciary responsibility, or other financial misconduct in connection with the delivery of a health care item or service or any act or omission in a health care program operated or financed by any federal, state, or local government agency.

On January 18, 2006, I convened a telephone prehearing conference during which the parties agreed that an in-person hearing was not required and that the issues could be decided on the parties' written submissions. Petitioner appeared pro se and was advised of the right to have an attorney represent her in these proceedings.

An order establishing briefing deadlines for the parties was issued on January 24, 2006. Pursuant to that order, the I.G. filed a brief on February 21, 2006, accompanied by eight proposed exhibits. The exhibits have been entered into the record as I.G. Exhibits (Exs.) 1-8, without objection. Following a request for an extension, Petitioner filed her brief on March 31, 2006, accompanied by seven proposed exhibits. These have been entered into the record as Petitioner (P.) Exs. 1-7, without objection. On May 2, 2006, the I.G. filed a reply brief.

My decision to sustain the determination of the I.G. to exclude Petitioner from participating in the Medicare, Medicaid, and all federal health care programs, for a period of five years is based 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 criminal offense related to fraud, theft, embezzlement, breach of fiduciary responsibility, or other financial misconduct in connection with the delivery of a health care item or service. Additionally, I find that where the exclusion is for the minimum period required by statutory law, no question of reasonableness exists.

II. ISSUES

III. APPLICABLE LAW AND REGULATIONS

Section 1128(a)(3) 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 section 1128B(f) of the Act), any individual convicted of a criminal offense relating to fraud, theft, embezzlement, breach of fiduciary responsibility, or other financial misconduct in connection with the delivery of a health care item or service.

An exclusion under section 1128(a)(3) of the Act must be for a minimum period of five years. Act, � 1128(c)(3)(B). Aggravating factors can serve as a basis for lengthening the period of exclusion. 42 C.F.R. � 1001.102(b). If aggravating factors justify an exclusion longer than five years, mitigating factors may be considered as a basis for reducing the period of exclusion to no less than five years. 42 C.F.R. 1001.102(c).

Pursuant to the regulation at 42 C.F.R. � 1001.2007, an individual or entity excluded under section 1128(a)(3) of the Act may file a request for a hearing before an administrative law judge.

IV. FINDINGS AND DISCUSSION

The findings of fact and conclusions of law noted below, in bold face, are followed by a discussion of each finding.

Petitioner was employed as a licensed practical nurse (LPN) at Wellspring Health Center (Wellspring) in Cincinnati, Ohio in November 2003. P. Brief at 2. On January 7, 2004, a grand jury in the Court of Common Pleas, Hamilton County, Ohio, returned a two-count felony indictment against Petitioner charging her with the theft of a dangerous drug (Hydrocodone), belonging to her employer. I.G. Ex. 3. The indictment charged her with obtaining Hydrocodone from Wellspring by theft on November 23, 2003 and November 26, 2003, in violation of Ohio Revised Code section 2913.02(A)(2). Id.

On July 20, 2004, Petitioner entered a plea of guilty to the first count in the indictment, which alleged that she stole Hydrocodone from Wellspring on November 23, 2003. I.G. Ex. 4, 5; also see I.G. Ex. 6. On August 10, 2004, the court sentenced her to five years of probation and one year driving suspension. I.G. Ex. 7.

In view of the above events, the I.G. informed Petitioner on August 31, 2005, that she was being excluded for the mandatory period of five years under section 1128(a)(3) of the Act, due to her conviction of a criminal offense (as defined in section 1128(i) of the Act) related to fraud, theft, embezzlement, breach of fiduciary responsibility, or other financial misconduct in connection with the delivery of a health care item or service or any act or omission in a health care program operated or financed by any federal, state, or local government agency. I.G. Ex. 1.

Petitioner argues that it is unreasonable for the I.G. to exclude her beginning August 2005. She alleges that for the following reasons the exclusion should be for a 30-month period commencing at the time of the incident to which she pleaded guilty, that is, November 23, 2003:

P. Brief at 3-4.

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

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). Aggravating factors that justify lengthening the exclusion period may be taken into account, but the five-year term will not be shortened. Petitioner was convicted of a criminal offense related to fraud, theft, embezzlement, breach of fiduciary responsibility, or other financial misconduct in connection with the delivery of a health care item or service. As a result of Petitioner's conviction, the I.G. was required to exclude her pursuant to section 1128(a)(3) of the Act, for at least five years. Neither the I.G. nor an administrative law judge have discretion to shorten this five-year mandatory exclusion period. Thus, the reasons cited by Petitioner as bearing upon the length of the five-year exclusion imposed by the I.G. are without legal merit.

V. CONCLUSION

Petitioner's conviction pursuant to sections 1128(a)(3) and 1128(c)(3)(B) of the Act mandate that she be excluded from Medicare, Medicaid, and all other federal health care programs for a period of at least five years, therefore I affirm the I.G.'s exclusion of Petitioner.

Administrative Law Judge