SUBJECT:

Julius Williams, III,

Petitioner,

The Inspector General.

DECISION

This matter is before me on the Inspector General's (I.G.'s) Motion for Summary Affirmance of the I.G.'s determination to exclude Petitioner pro se, Julius Williams, III, from participation in Medicare, Medicaid, and all other federal health care programs for a period of 15 years. The I.G.'s Motion and determination to exclude Petitioner are based on the terms of section 1128(a)(1) of the Social Security Act (Act), 42 U.S.C. � 1320a-7(a)(1).

The facts in this case mandate the imposition of at least the minimum five-year exclusion, and fully support the reasonableness of the I.G.'s determination to enhance that period of exclusion to 15 years. For those reasons, I grant the I.G.'s Motion for Summary Affirmance.

I. Procedural Background

In 2002, Julius Williams, III, Petitioner pro se, was a pharmacist licensed by the State of Georgia. On December 23, 2002, in the United States District Court for the Northern District of Georgia, the United States Attorney for the Northern District of Georgia filed an Information charging Petitioner with a felony violation of 18 U.S.C. � 1347, health care fraud.

This record does not show with absolute certainty the date of Petitioner's guilty plea to the Information, but there is an indication that the plea was offered and accepted on or about January 23, 2003. That such a plea was offered and accepted is established with virtual certainty by the fact that Petitioner was adjudged guilty on his plea and was sentenced accordingly on April 14, 2003. Petitioner was sentenced to a 15-month prison term and a three-year term of supervised probation following his release, was required to pay a special assessment of $100, and was ordered to pay restitution to the Georgia Medicaid program in the sum of $130,514.

As the terms of section 1128(a) of the Act, 42 U.S.C. � 1320a-7(a) require, the I.G. began the process of excluding Petitioner from participation in Medicare, Medicaid, and all other federal health care programs. Sections 1128(a)(1) and 1128(c)(3)(B) of the Act mandate the exclusion, for a period of not less than five years, of "[a]ny individual or entity that has been convicted of a criminal offense related to the delivery of an item or service under Title XVIII or any State health care program." On July 31, 2003, the I.G. notified Petitioner that he was to be excluded pursuant to the terms of section 1128(a)(1) of the Act for a period of 15 years. The I.G.'s notice letter was sent to Petitioner's home address.

Acting pro se, Petitioner sought review of the I.G.'s action by letter of March 30, 2005. Petitioner's letter asserted that the I.G.'s notice letter had not been forwarded to the prison facility where he had been incarcerated, and that he had therefore not received the I.G.'s notice letter in the regular and timely fashion presumed by law.

A telephone prehearing conference scheduled for June 1, 2005 was postponed at Petitioner's request in order to allow him time to retain counsel and, on August 31, 2005, Robert Alan Glickman, Esquire entered his appearance for Petitioner. I convened the prehearing conference by telephone on September 7, 2005, pursuant to 42 C.F.R. � 1005.6. The I.G. noted that Petitioner's hearing request appeared on its face to be untimely, and I established a schedule for addressing that issue. The I.G.'s Motion to Dismiss was filed on October 11, 2005. Petitioner responded on November 14, 2005. Soon thereafter, following the exchange of documents relating to Petitioner's incarceration, the I.G. on November 30, 2005 withdrew his Motion to Dismiss. The timeliness of Petitioner's hearing request is no longer an issue in this case.

I convened a second prehearing conference by telephone on December 19, 2005. The purpose of this second conference was to discuss the issues in the case with both parties, and to discuss the procedures best suited for addressing those issues. The parties agreed that the case could be decided on written submissions, and I established a schedule for the submission of documents and briefs. The results of that conference and my directions to the parties appear in the Order of December 21, 2005.

The I.G.'s Motion for Summary Affirmance and Brief in support of the Motion was timely filed on January 20, 2006. Petitioner's Answer Brief was due by February 21, 2006, but no such pleading was timely filed, and on March 6, 2006 an Order to Show Cause was issued requiring Petitioner's response not later than March 13, 2006.

On March 7, 2006, Robert Alan Glickman wrote: "There will be no response filed on the petitioner's behalf to the Inspector General's Motion for Summary Affirmance." Mr. Glickman offered an explanation of that statement in his letter of March 15, 2006, and on March 16, 2006 Petitioner wrote "Mr. Glickman no longer represents me as counsel. I now want to represent myself. I request 30 days in which to file an answer to the Inspector General brief." By Order of March 17, 2006 Petitioner's request was granted, and a supplemental briefing schedule was established. Although Petitioner failed to comply with its final step, that schedule has now been completed. The record in this case closed on May 25, 2006.

The I.G. has submitted four exhibits, marked I.G. Exhibits 1-4 (I.G. Exs. 1-4). Petitioner has not objected to them, and they are admitted to the record of this case as designated.

Petitioner has submitted eleven exhibits (P. Exs. 1-11). The I.G. has objected to all of them as irrelevant to the issues properly before me, and to a very large degree those objections are entirely valid. But a much more serious objection to the admission of most of Petitioner's exhibits is the fact that, on their faces, their sources are unclear and their integrity very uncertain. Many bear marginal notes of an argumentative nature, and many are patently incomplete. Several appear to be made up of pages taken from different unidentified documents and proffered together in a single exhibit. In any normal situation such material would not find its way into the record of this case. Nevertheless, because Petitioner appears here pro se, and for reasons that will appear more fully in the discussion below, I have admitted P. Exs. 1-11 to the record of this case as designated.

II. Issues

The legal issues before me are limited to those enumerated at 42 C.F.R. � 1001.2007(a)(1). In the specific context of this record they are:

1. Whether the I.G. has a basis for excluding Petitioner from participating in Medicare, Medicaid, and all other federal health care programs pursuant to section 1128(a)(1) of the Act; and,

2. Whether the 15-year length of the period of exclusion is unreasonable.

The controlling authorities require that both issues be resolved in favor of the I.G.'s position. Section 1128(a)(1) of the Act mandates Petitioner's exclusion since his predicate conviction has been established. A five-year period of exclusion is the minimum period established by section 1128(c)(3)(B) of the Act, 42 U.S.C. � 1320a-7(c)(3)(B). The enhanced period of exclusion is not unreasonable: all three of the aggravating factors relied on by the I.G. to enhance the period are fully proven in the record before me, and no mitigating factors have been demonstrated. The 15-year period proposed by the I.G. is thus within a reasonable range based on the facts of this case.

III. Controlling Statutes and Regulations

Section 1128(a)(1) of the Act, 42 U.S.C. � 1320a-7(a)(1), requires the mandatory exclusion from participation in Medicare, Medicaid, and all other federal health care programs of any "individual or entity that has been convicted of a criminal offense related to the delivery of an item or service under Title XVIII or under any State health care program." Title XVIII of the Act is the Medicare program. The terms of section 1128(a)(1) are restated somewhat more broadly in regulatory language at 42 C.F.R. � 1001.101(a).

The Act defines "conviction" as including those circumstances "when a judgment of conviction has been entered against the individual . . . by a Federal . . . court," Act, section 1128(i)(1); "when there has been a finding of guilt against the individual . . . by a Federal . . . court," Act, section 1128(i)(2); or "when a plea of guilty . . . by the individual . . . has been accepted by a Federal . . . court," Act, section 1128(i)(3). These definitions are repeated at 42 C.F.R. � 1001.2.

An exclusion based on section 1128(a)(1) is mandatory and the I.G. must impose it for a minimum period of five years. Act, section 1128(c)(3)(B); 42 U.S.C. � 1320a-7(c)(3)(B). The regulatory language of 42 C.F.R. � 1001.102(a) affirms the statutory provision. The minimum mandatory period of exclusion is subject to enhancement in some limited circumstances and on proof of carefully-defined aggravating factors set out at 42 C.F.R. �� 1001.102(b)(1) - (9). In this case, the I.G. relies on the aggravating factors listed at 42 C.F.R. �� 1001.102(b)(1), (b)(2), and (b)(5).

If the I.G. attempts to enhance the period of exclusion by relying on any of those aggravating factors, a petitioner may attempt to limit or nullify the proposed enhancement through a showing of certain mitigating factors set out at 42 C.F.R. �� 1001.102(c)(1) - (3).

The standard of proof in this case is a preponderance of the evidence. Petitioner bears the burden of proof and persuasion on any affirmative defenses or mitigating factors and the I.G. bears the burden on all other issues. 42 C.F.R. �� 1005.15(b), (c).

IV. Findings and Conclusions

I find and conclude as follows:

1. On December 23, 2002, in the United States District Court for the Northern District of Georgia, Petitioner Julius Williams, III, was charged by Information with one felony violation of 18 U.S.C. � 1347, health care fraud, based on his submission of fraudulent claims to the Georgia Medicaid program. I.G. Ex. 3.

2. Final adjudication of guilt, judgment of conviction, and sentencing based on that conviction were imposed on Petitioner in the United States District Court on or about April 14, 2003. I.G. Ex. 4.

3. On July 31, 2003, the I.G. notified Petitioner that he was to be excluded from participation in Medicare, Medicaid, and all other federal health care programs for a period of 15 years, based on the authority set out in section 1128(a)(1) of the Act, and on the presence of three aggravating factors set out in 42 C.F.R. �� 1001.102(b)(1), (2), and (5). I.G. Ex. 1.

4. On March 30, 2005, Petitioner perfected his appeal from the I.G.'s action by filing a pro se hearing request. The I.G. does not contest the timeliness of Petitioner's hearing request.

5. The adjudication of guilt, judgment of conviction, and sentence based on Petitioner's violation of 18 U.S.C. � 1347, as described in Finding 2 above, constitute a "conviction" related to the delivery of an item or service under the Georgia Medicaid program, within the meaning of sections 1128(a)(1) and 1128(i)(1) and (2) of the Act, and 42 C.F.R. � 1001.2.

6. By reason of his conviction, Petitioner was subject to, and the I.G. was required to impose, a period of exclusion from Medicare, Medicaid, and all other federal health care programs of not less than five years. Act, sections 1128(a)(1), 1128(c)(3)(B).

7. The acts resulting in Petitioner's conviction of a violation of 18 U.S.C. � 1347 caused a financial loss to the Georgia Medicaid program of approximately $130,514. I.G. Ex. 3, 4.

8. Because the acts resulting in Petitioner's conviction caused a financial loss to a Government program of more than $5,000, the aggravating factor set out in 42 C.F.R. � 1001.102(b)(1) is present.

9. The acts resulting in Petitioner's conviction of a violation of 18 U.S.C. � 1347 were committed over the period from on or about September 1, 1999 through on or about December 29, 2001. I.G. Ex. 3.

10. Because the acts resulting in Petitioner's conviction were committed over a period of one year or more, the aggravating factor set out in 42 C.F.R. � 1001.102(b)(2) is present.

11. As the result of his conviction of a violation of 18 U.S.C. � 1347, Petitioner was sentenced to incarceration for a term of 15 months. I.G. Ex. 4.

12. Because Petitioner was sentenced to a term of incarceration, the aggravating factor set out in 42 C.F.R. � 1001.102(b)(5) is present.

13. None of the mitigating factors set out in 42 C.F.R. �� 1001.102(c)(1)-(3) are present. P. Exs. 1-11.

14. The I.G.'s exclusion of Petitioner for a period of 15 years is supported by fact and law, is within a reasonable range, and is therefore not unreasonable. I.G. Exs. 3, 4; Findings 1-13, above.

15. There are no disputed issues of material fact and summary affirmance is appropriate in this matter. Tanya A. Chuoke, R.N., DAB No. 1721 (2000); Thelma Walley, DAB No. 1367 (1992); 42 C.F.R. � 1005.4(b)(12).

V. Discussion

The essential elements necessary to support an exclusion based on section 1128(a)(1) of the Act are: (1) the individual to be excluded must have been convicted of a criminal offense; and (2) the criminal offense must have been related to the delivery of an item or service under Title XVIII of the Act (Medicare) or any state health care program. Thelma Walley, DAB No. 1367 (1992); Boris Lipovsky, M.D., DAB No. 1363 (1992); Lyle Kai, R.Ph., DAB CR1262 (2004) rev'd on other grounds, DAB No. 1979 (2005). Those two essential elements are fully established in the record before me.

Petitioner's conviction is shown by I.G. Exs. 3 and 4. His plea of guilty to a violation of 18 U.S.C. � 1347 was plainly negotiated in the context of the Information, since felony charges must be presented to a grand jury unless the prospective defendant consents that they may be filed by Information. FED. R. CRIM. P. 7. Petitioner's guilty plea necessarily was tendered and accepted at some time between the filing of the Information on December 23, 2002 and April 14, 2003, since the trial court found him guilty and entered its judgment of conviction against him on April 14, 2003. The acceptance of the plea may not be explicit on this record, but the court's finding of guilty and its entry of judgment do satisfy explicitly the definitions of "conviction" set out at sections 1128(i)(1) and (2) of the Act. The I.G. has proved the first essential element.

The Information charges that between approximately September 1, 1999 and approximately December 29, 2001, Petitioner devised a scheme to defraud the Georgia Medicaid program through the submission of false billings. I.G. Ex. 3, at 1. The Information specifically charged that "The defendant, JULIUS WILLIAMS, III, obtained at least $130,000 from Medicaid through the submission of the above-described fraudulent and improper claims." I.G. Ex. 3, at 3. The submission of false billings to the Medicare and Medicaid programs has been consistently held to be a program-related crime within the reach of section 1128(a)(1). Jack W. Greene, DAB No. 1078 (1989), aff'd sub nom. Greene v. Sullivan, 731 F. Supp. 835 (E.D. Tenn. 1990); Kennard C. Kobrin, DAB CR1213 (2004); Norman Imperial, DAB CR833 (2001); Egbert Aung Kyang Tan, M.D., DAB CR798 (2001); Mark Zweig, M.D., DAB CR563 (1999); Alan J. Chernick, D.D.S., DAB CR434 (1996). While I find the required nexus and common-sense connection between the criminal act and the program present here as a matter of fact, Berton Siegel, D.O., DAB No. 1467 (1994), I believe that Petitioner's conviction for violating 18 U.S.C. � 1347 is a program-related crime as a matter of law. The I.G. has proved the second essential element.

Petitioner does not directly deny his conviction, but he does protest that he is not guilty of the charge he admitted. He blames his conviction on his counsel. His position is set out in the following self-serving and arrantly false expressions of innocence: "The submissions were correct and legitimate according to (the fiscal agent's) rules and regulations" (P. Br. at 3, lines 2-3); "The investigation was unmerited and I felt unfairly treated. At this time, I had not yet sought legal counsel to advocate on my behalf. All the bills I submitted were absolutely correct and legitimate" (P. Br. at 3, lines 9-11); "He (defense counsel) advised me that because of the sentencing guidelines I was better off rushing into a guilty plea. I was na�ve and I didn't understand the Federal Court. I assumed that in a criminal information hearing, I could have a chance to explain my unwise decisions and unfortunate mistakes in that forum" (P. Br. at 3, lines 15-18); "My actions never risked the health, safety, or welfare of any patient" (P. Br. at 4, lines 5-6); "I pled guilty to these charges, believing that at the criminal information hearing, I could address the matter of my guilt" (P. Br. at 4, lines 8-9).

Insofar as Petitioner now seeks to abjure or disavow his admission of criminality, he is bound by the facts established by his plea of guilty to the Information, including the specific admissions that he ". . . did knowingly and willfully devise and intend to devise a scheme to defraud Medicaid . . . and to obtain money and property by means of materially false and fraudulent pretenses and representations, through the filing of false and fraudulent electronic billings for pharmaceuticals and pharmacy services claimed to have been provided to Medicaid recipients which were not in fact so provided" (I.G. Ex. 3, at 1); that he ". . . did electronically file claims with Medicaid for pharmacy services that were in fact not rendered" (I.G. Ex. 3, at 2); and that he " . . . did not actually dispense any pharmaceuticals or provide any other pharmacy services to Medicaid patients based on the false and fraudulent prescriptions" (I.G. Ex. 3, at 3). He is bound, as well, by his confession of criminality with reference to ten specifically-identified claims in the Information's Paragraph 10. I.G. Ex. 3, at 3-4. He will not be heard to recant those admissions now. See Susan Malady, R.N., DAB No. 1816 (2002); Theodore Sabot, M.D., DAB CR1160 (2004); Dirk G. Wood, M.D., DAB CR1068 (2003). Any form of collateral attack on predicate convictions in exclusion proceedings is precluded by regulation at 42 C.F.R. � 1001.2007(d), and that preclusion has been affirmed repeatedly by the Board. Susan Malady, R.N., DAB No. 1816; Dr. Frank R. Pennington, M.D., DAB No. 1786 (2001); Joann Fletcher Cash, DAB No. 1725 (2000); Paul R. Scollo, D.P.M., DAB No. 1498 (1994); Chander Kachoria, R.Ph., DAB No. 1380 (1993). Petitioner's conviction stands and, as I have explained above, it satisfies both essential elements necessary to sustaining the exclusion.

Once a predicate conviction within the purview of section 1128(a) has been demonstrated, exclusion for the minimum period of five years is mandatory. Mark K. Mileski, DAB No. 1945 (2004); Salvacion Lee, M.D., DAB No. 1850 (2002); Lorna Fay Gardner, DAB No. 1733 (2000); David A. Barrett, DAB No. 1461 (1994).

The period of exclusion may be enhanced to more than five years if the I.G. is able to demonstrate the existence of certain aggravating factors, and if the I.G. undertakes to do so, a petitioner may attempt to limit or nullify the proposed enhancement through a showing of certain mitigating factors. The I.G. may offer evidence relating to any of the aggravating factors set out at 42 C.F.R. � 1001.102(b)(1)-(9). Those factors may be countered by evidence relating to any of the mitigating factors set forth at 42 C.F.R. �� 1001.102(c)(1)-(3). But the overarching principle is this: so long as the length of the exclusion is within a reasonable range and is based on demonstrated criteria, I must not alter it. Jeremy Robinson, DAB No. 1905 (2004); Joann Fletcher Cash, DAB No. 1725.

The first aggravating factor on which the I.G. relies is conclusively shown by the record before me. That factor is present when "[t]he acts resulting in the conviction, or similar acts . . . caused . . . a financial loss to a Government program . . . of $5,000 or more." 42 C.F.R. � 1001.102(b)(1). Petitioner was required to pay $130,514 in program restitution as part of his sentence. I.G. Ex. 4, at 5. If it were necessary to rely solely on this adjudicated amount of restitution as prima facie proof of the amount of loss, settled precedent of this forum would support that reliance. Dr. Darren J. James, D.P.M., DAB CR860 (2002); Ruth Ferguson, DAB CR725 (2000); Steven Alonzo Henry, M.D., DAB CR638 (2000); Thomas P. Whitfield, D.P.M., DAB CR539 (1998); Gilbert Ross, M.D., et al., DAB CR478 (1997). But it is not necessary here to rely on the amount of restitution as an estimate of the total amount of loss caused by Petitioner's crime, for he has admitted a very similar amount. The Information to which he pleaded guilty specified that "[t]he defendant, JULIUS WILLIAMS, III, obtained at least $130,000 from Medicaid . . . ." I.G. Ex. 3, at 3, paragraph 9. That amount satisfies the requirement of 42 C.F.R. � 1001.102(b)(1). The I.G. has established this first aggravating factor.

The second aggravating factor relied on by the I.G. is specified at 42 C.F.R. � 1001.102(b)(5). The I.G. alleges that Petitioner's sentence included incarceration. The court records are plain that Petitioner was sentenced to a prison term of 15 months. I.G. Ex. 4. He has now completed that term of incarceration. There is no genuine issue of material fact as to the nature or length of the sentence. The I.G. has established this second aggravating factor.

The third aggravating factor asserted by the I.G. is specified at 42 C.F.R. � 1001.102(b)(2). That factor is present if "[t]he acts that resulted in the conviction, or similar acts, were committed over a period of one year or more." Here, as with the first aggravating factor, the Information to which Petitioner pleaded guilty demonstrates the factor. The first lines of that Information read: "From on or about September 1, 1999, and continuing through on or about December 29, 2001 . . . the defendant, JULIUS WILLIAMS, III, did knowingly and willfully devise and intend to devise a scheme to defraud Medicaid . . . ." I.G. Ex. 3, at 1. Petitioner's admission of guilt is sufficient to demonstrate the temporal span of his crime. The I.G. has established this third aggravating factor.

Evidence relating to aggravating factors may be countered by evidence relating to any of the mitigating factors set forth at 42 C.F.R. � 1001.102(c)(1)-(3). Those mitigating factors appear immediately following the regulation's emphatic expression that "[o]nly the following factors may be considered mitigating . . ." 42 C.F.R. � 1001.102(c). As to each of the mitigating factors, ". . . Petitioner ha[s] the burden of proving any mitigating factor by a preponderance of the evidence, since the mitigating factor is in the nature of an affirmative defense." Barry D. Garfinkel, M.D., DAB No. 1572 (1996). This allocation of the burden of proof, set out at 42 C.F.R. � 1005.15(b)(1), is fully consistent with Board pronouncements. Stacey R. Gale, DAB No. 1941 (2004); Dr. Darren James, D.P.M., DAB No. 1828, at 7-8 (2002).

The mitigating factor Petitioner claims is set out in the following language at 42 C.F.R. � 1001.102(c)(2):

(2) The record in the criminal proceedings, including sentencing documents, demonstrates that the court determined that the individual had a mental, emotional or physical condition before or during the commission of the offense that reduced the individual's culpability . . . .

42 C.F.R. � 1001.102(c)(2).

Petitioner concedes that he is " . . . now in need of evidence of mitigation." P. Br. at 4. He blames his counsel in the criminal proceedings for the absence of such evidence, just as he blames that counsel for his guilty plea. P. Br. at 4-5. He now offers letters from two physicians in support of his claim about his "ailments and how they affected my emotional and mental health, and how those conditions affected my actions for which I was prosecuted." P. Br. at 5.

The two letters appear in this record as part of P. Ex. 9. The first is dated May 7, 2003. It describes Petitioner as having severe sleep apnea, and gives directions for its management. This first letter makes no reference at all to the period over which the apnea may have existed. The second letter is dated May 23, 2003 and is from Petitioner's treating physician since 2001. It reflects Petitioner's medical history as including severe sleep apnea and hypertension, and points out the need for certain measures to moderate the problems.

Both letters are dated after the sentence and entry of final judgment of conviction in this case, which took place on April 14, 2003. I.G. Ex. 4. They are not part of the record in the criminal proceedings and not part of the sentencing documents, and could not have been the basis for any judicial determination of reduced culpability during relevant times. Indeed, neither letter purports even to hint at a connection between Petitioner's sleep apnea and hypertension and his criminal behavior, nor to hint at a possible link among any treatments or medications related to the conditions, the conditions themselves, and Petitioner's crime. The I.G.'s objection to the relevance of the letters is sound, but the letters must be discussed since they are the only evidence from identified sources that this pro se Petitioner has to offer in support of his claim in mitigation.

In my description of the serious problems with many of Petitioner's exhibits, I noted that the sources of many are unclear, and that several appear to be made up of pages taken from different unidentified documents and proffered together in a single exhibit. One such exhibit contains the only other reference to Petitioner's health. P. Ex. 9, at 3. The reference occurs in a paragraph numbered 43, and reads: "The defendant advised he does not suffer from mental or emotional health problems. However, the defendant sought psychiatric help for 6 months in 1993 and was prescribed Prozac."

It seems to me very likely that the document from which this page was extracted is the presentence report prepared in connection with Petitioner's conviction. Neither on that page, nor on any other pages resembling it in format but scattered throughout Petitioner's exhibits, can anything be found to positively so identify it, but assuming arguendo that it is and accepting its representations at face value, the reference is of no help to Petitioner. It shows no "mental or emotional health problems" in need of the court's consideration, and points to a time far in advance of Petitioner's crime when Petitioner sought psychiatric help for only six months. Paragraph 44 of the document also shows that Petitioner's alcohol and drug use had ceased well before he began his criminal scheme in 1999. But even if I assume that these two paragraphs are part of the presentence report and therefore part of the "the sentencing record as a whole," I find that it is utterly unreasonable to infer from the entire record that the presiding judge made the determinations required by the regulation as part of the sentencing process. Arthur C. Haspel, D.P.M., DAB No. 1929 (2004).

Petitioner has made no attempt to point out any other mitigating factors. Without intending the slightest weakening of the rule that requires a petitioner to shoulder the burden of proving any mitigating factor by a preponderance of the evidence, I have searched Petitioner's pro se pleadings and attached documents for any hint that one or more additional mitigating factors might be brought into consideration. In doing so I have been guided by the Board's reminders that pro se litigants should be offered "some extra measure of consideration" in developing their records and their cases. Mark K. Mileski, DAB No. 1945; Brij Mattel, M.D., DAB No. 1894 (2003); Louis Mathews, DAB No. 1574 (1996); Timothy L. Stern, M.D., DAB No. 1314 (1992); Edward J. Petrus, Jr., M.D., DAB No. 1264 (1991). That search has revealed nothing that points to or hints at any additional colorable claim in mitigation. Since Petitioner was convicted of a felony, 42 C.F.R. � 1001.102(c)(1) does not apply. At least two of Petitioner's own exhibits, P. Ex. 5 and P. Ex. 8, make it surpassingly clear that he cannot claim to have cooperated with Federal or State officials investigating health care fraud.

The I.G.'s discretion in weighing the importance of aggravating and mitigating factors in exclusion cases commands great deference when Administrative Law Judges (ALJs) review it. This doctrine evolved as a central concept in such Board decisions as Barry D. Garfinkel, M.D., DAB No. 1572, Frank A. DeLia, D.O., DAB No. 1620 (1997), and Gerald A. Snider, M.D., DAB No. 1637 (1997). With the Board's decisions in Joann Fletcher Cash, DAB No. 1725; Stacy Ann Battle, D.D.S., et al., DAB No. 1843 (2002), Keith Michael Everman, D.C., DAB No. 1880 (2003), and Jeremy Robinson, DAB No. 1905, this doctrine of deference to the I.G.'s assessment of aggravating and mitigating factors took its present form.

Stated simply, the doctrine requires that the ALJ not substitute her or his own view of what period of exclusion might appear "best" in any given case for the view of the I.G. on the same evidence. ⁽¹⁾ In general, the Board has insisted that ALJs may reduce an exclusionary period only when they discover some form of meaningful evidentiary failing in the aggravating factors upon which the I.G. relied, or when they discover evidence reliably establishing a mitigating factor not considered by the I.G. in setting the enhanced period. Jeremy Robinson, DAB No. 1905. Where, as here, all of the aggravating factors on which the I.G. relied are present and there are no mitigating factors, a holding that the exclusion period chosen by the I.G. was unreasonable could be reached only through an exercise that Jeremy Robinson expressly forbids. The only question I may ask now is whether the exclusion period is within a reasonable range. In the instant case, the proposed 15-year period is commensurate with the range established as reasonable in Jeremy Robinson, DAB No. 1905; Thomas D. Harris, DAB No. 1881 (2003); Keith Michael Everman, D.C., DAB No. 1880; Fereydoon Abir, M.D., DAB No. 1764 (2001); Joann Fletcher Cash, DAB No. 1725.

Summary disposition in an exclusion case such as this one is appropriate when there are no disputed issues of material fact and when the undisputed facts, clear and not subject to conflicting interpretation, demonstrate that one party is entitled to judgment as a matter of law. Summary disposition is explicitly authorized by the terms of 42 C.F.R. �1005.4(b)(12), and this forum looks to FED. R. CIV. P. 56 for guidance in applying that regulation. Tanya A. Chuoke, R.N., DAB No. 1721; Robert C. Greenwood, DAB No. 1423 (1993); Thelma Walley, DAB No. 1367; John W. Foderick, M.D., DAB No. 1125 (1990). When the undisputed material facts of a case support summary disposition, there is neither a right to -- nor the need of -- a full evidentiary hearing. Surabhan Ratanasen, M.D., DAB No. 1138 (1990); John W. Foderick, M.D., DAB No. 1125. The material facts in this case are undisputed, clear, and unambiguous. They support summary disposition as a matter of law, and this Decision issues accordingly.

VI. Conclusion

For the reasons set out above, the I.G.'s Motion for Summary Affirmance should be, and it is, GRANTED. The I.G.'s exclusion of Petitioner Julius Williams, III, from participation in Medicare, Medicaid, and all other federal health care programs for a period of 15 years, pursuant to the terms of section 1128(a)(1) of the Act, 42 U.S.C. � 1320a-7(a)(1), is thereby sustained.

Richard J. Smith

Administrative Law Judge

1. I.G. Ex. 2 shows that Petitioner's Pharmacist License No. 14193 was surrendered to the Georgia State Board of Pharmacy on July 23, 2003, and that the circumstances involved his "fitness to resume the practice of pharmacy." If the I.G. had chosen to invoke the aggravating factor described at 42 C.F.R. � 1001.102(b)(9), the facts before me would support that invocation prima facie. The I.G. has not chosen to invoke it, and I have not considered it as an aggravating factor in this Decision.