SUBJECT:

Kathleen E. Talbot, M.D.,

Petitioner,

The Inspector General

DECISION

I sustain the determination of the Inspector General (I.G.) to exclude Petitioner, Kathleen E. Talbot, M.D., from participating in the Medicare, Medicaid, and all federal health care programs as defined in section 1128B(f) of the Social Security Act (Act)⁽¹⁾ for a period of five years.

I. DISCUSSION

By letter dated August 31, 2000, the I.G. notified Petitioner that she is being excluded from participating in Medicare and Medicaid for a period of five years, the minimum statutory period. The I.G. advised Petitioner that the exclusion was being imposed pursuant to section 1128(a)(4) of the Act because Petitioner was convicted of a criminal offense consisting of a felony relating to the unlawful manufacture, distribution, prescription, or dispensing of a controlled substance. The I.G. also advised Petitioner that the exclusion would be effective 20 days from the date of the August 31, 2000 letter.

By letter dated October 28, 2000, Petitioner requested a hearing and the case was assigned to me for appropriate proceedings. I convened a prehearing conference by telephone on December 5, 2000. Petitioner elected to appear at this proceeding on her own behalf.

During the conference, Petitioner stated that she is not contesting that she was convicted of a criminal offense consisting of a felony relating to the unlawful manufacture, distribution, prescription, or dispensing of a controlled substance. Petitioner stated that she is therefore not contesting the I.G.'s authority to exclude her pursuant to section 1128(a)(4) of the Act, and she is not contesting that she is subject to an exclusion for a period of five years, the minimum statutory period. Petitioner stated that the issue she wants me to decide is the effective beginning date of the exclusion. See December 26, 2000 Order and Schedule for Filing Briefs and Documentary Evidence (December 26, 2000 Order) at pp. 1 - 2.

According to Petitioner, she pled guilty to the felony offense in September 1998. The exclusion, however, did not go into effect until approximately two years later, in September of 2000. Petitioner stated that she has not billed Medicare, Medicaid, or any insurance program since September 1998, and that she has in effect voluntarily excluded herself during the period from September 1998 until the exclusion officially went into effect in September 2000. Petitioner therefore asked that she be given "credit for time served," and she stated that the relief that she is seeking is for me to change the effective date of the exclusion to begin in September 1998 when she pled guilty to the felony offense which is the basis of the exclusion. December 26, 2000 Order at p. 2.

Petitioner argued that granting this relief would be fair because she would have voluntarily notified the I.G. of her conviction at the time it occurred, had she been aware that she was subject to the mandatory exclusion. This would have prompted the I.G. to exclude her sooner rather than waiting two years after her conviction to impose the exclusion. Petitioner argued also that waiting two years after her conviction to impose the exclusion is "inhumane" additional punishment and that it does not contribute to her rehabilitation. She stated also that she was interested in exploring alternative means of resolving this case, such as using an ombudsman or mediator. December 26, 2000 Order at p. 2.

Counsel for the I.G. stated that it is the I.G.'s position that there is no provision in the law which gives a deadline for the I.G. to impose an exclusion. According to the I.G., Petitioner is subject to an exclusion for the minimum, mandatory period of five years and the I.G. does not have the option to compromise under the law. In view of this, the I.G. stated that it does not believe that it would be appropriate to use alternative means of resolving this case. December 26, 2000 Order at p. 2.

I stated that I do not have the authority to assign this case to an ombudsman or mediator unless both sides agree to do so. I suggested that the best way to proceed would be for the I.G. to submit a written brief, thereby enabling Petitioner to study the I.G.'s position and supporting legal authorities. In view of the fact that Petitioner is appearing pro se, I instructed the I.G. to attach copies of decisions which she relies on in her brief. I also stated that I would give Petitioner the opportunity for oral argument if she wished. December 26, 2000 Order at pp. 2 - 3.

Both parties agreed that it would be appropriate to proceed by submitting written arguments supported by legal citations and documentary evidence. I established a liberal briefing schedule so that Petitioner would have sufficient time to prepare her response to the I.G.'s initial submission, either on her own or with the help of any attorney she may have chosen to retain in the meantime. December 26, 2000 Order at pp. 2 - 3.

The I.G. submitted a brief accompanied by seven proposed exhibits which the I.G. identified as I.G. Ex. 1 - 7. Petitioner submitted a one-page response which was not accompanied by proposed exhibits. The I.G. declined to file a reply. Petitioner did not object to the I.G.'s proposed exhibits, and I receive I.G. Ex. 1 - 7 into evidence. In addition, Petitioner did not request oral argument in this case.

In affirming the I.G.'s determination, I have considered the applicable law, the exhibits, and the statements of the parties. I conclude that no material controversy exists in this case on the issue of the I.G.'s authority to exclude Petitioner pursuant to section 1128(a)(4) of the Act, and on the issue of the reasonableness of the length of the exclusion.

The I.G. has submitted sufficient reliable evidence to sustain her burden of proving that there is a basis for the exclusion under section 1128(a)(4) of the Act. The evidence adduced by the I.G. amply demonstrates that Petitioner was convicted of a criminal offense consisting 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 first requirement that must be satisfied in order to establish that the I.G. has the authority to exclude Petitioner under section 1128(a)(4) of the Act is that Petitioner must have been convicted of a criminal offense. The undisputed evidence establishes that Petitioner pled guilty to five counts of the criminal offense of Deception to Obtain Dangerous Drugs in the Court of Common Pleas for Lorain County, Ohio. I.G. Ex. 1 - 2. Based on its acceptance of Petitioner's guilty plea, the court issued a Judgment Entry of Conviction and Sentence on November 13, 1998 in which it sentenced Petitioner to three years of probation, 100 hours of community service, a $1000 fine, and treatment for substance abuse. I.G. Ex. 2. The Act defines the term "convicted" of a criminal offense to include those circumstances in which a guilty plea by an individual has been accepted by a federal, State, or local court. Act, section 1128(i)(3). Based on the record before me, I conclude that Petitioner was convicted of a criminal offense within the meaning of section 1128(a)(4) of the Act.

The second requirement of section 1128(a)(4) - that the criminal offense underlying the conviction consists of a felony - has also been met. The Judgment Entry of Conviction and Sentence issued by the court specifically identifies the offense Deception to Obtain Dangerous Drugs as a fifth degree felony. I.G. Ex. 2.

I further find that the third requirement of section 1128(a)(4) - that the criminal offense underlying the conviction must be related to the unlawful manufacture, distribution, prescription, or dispensing of a controlled substance - has also been met. The record shows that Petitioner was convicted of five counts of Deception to Obtain Dangerous Drugs based on charges that Petitioner unlawfully wrote prescriptions for Vicodin in the names of others in order to obtain drugs for her personal use. I.G. Ex. 1 - 4. Vicodin is a Schedule III controlled substance. I.G. Ex. 1. There is no question that the criminal offense underlying Petitioner's exclusion relates 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 exclusions for individuals convicted of felony offenses relating to the unlawful manufacture, distribution, prescription, or dispensing of a controlled substance. The law not only mandates exclusions for individuals convicted of this type of offense, it requires that the term of such exclusions be for at least five years pursuant to section 1128(c)(3)(B) of the Act.

Since Petitioner was convicted of a criminal offense consisting 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 I.G. is required by law to exclude Petitioner for a minimum of five years.

The material facts of this case are not in dispute. Although Petitioner has been given ample opportunity to submit evidence which would cast doubt on the validity of the I.G.'s determination, she has not done so. Indeed, Petitioner's failure to do so is consistent with her verbal concessions at the prehearing conference that she was convicted of a felony offense relating to the unlawful manufacture, distribution, prescription, or dispensing of a controlled substance. Petitioner also agreed that, under these circumstances, the law requires the I.G. to exclude her for at least five years.

While Petitioner does not dispute that the I.G. has the authority to exclude her for a period of five years, she does challenge the date that the exclusion became effective. In her statement in response to the I.G.'s brief, Petitioner asserts that "drug abuse is a disease, from which one can recover." She points out that the State Medical Board of Ohio determined that she recovered from her disease of addiction sufficiently to allow her to practice medicine in September of 1999. She states that "the federal government is practicing medicine without a license" by issuing a determination that she cannot be trusted to participate in Medicare and Medicaid until September of 2005. In addition, she argues that the exclusion discriminates against her, "a person with a disability." She also states that the exclusion punishes the public by "putting another excellent family practitioner out of practice for a total of 7� years."

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. While it is unfortunate that the I.G. did not send Petitioner an exclusion notice until almost two years after she was convicted of the criminal offense, an administrative law judge has no authority to review the timing of the I.G.'s determination to impose an exclusion or to retroactively alter the date of the imposition of the exclusion. Samuel W. Chang, M.D., DAB No. 1198 (1990).

I do not have the authority to grant the equitable relief sought by Petitioner. An administrative law judge's jurisdiction in hearings regarding exclusions imposed pursuant to section 1128(a)(4) restricts the issues that may be heard to the issues of whether:

(i) [t]he basis for the imposition of the sanction exists, and (ii) [t]he length of exclusion is unreasonable.

42 C.F.R. � 1001.2007(a)(1).

The regulations provide also that:

[w]hen the [I.G.] imposes an exclusion under subpart B of this part for a period of 5 years, paragraph (a)(1)(ii) of this section will not apply.

42 C.F.R. � 1001.2007(a)(2).

In the instant case, the I.G. has imposed a five-year minimum mandatory exclusion under Subpart B of the regulations.⁽³⁾ Thus, the only issue I may consider is whether the basis for imposition of the exclusion exists. There is nothing in the law or regulations which either states or suggests that the Secretary of the United States Department of Health and Human Services has delegated to administrative law judges the authority to grant the equitable relief sought by Petitioner.

II. FINDINGS OF FACT AND CONCLUSIONS OF LAW

For the reasons discussed above, I issue formal findings and conclusions (Findings) based on the pleadings and undisputed evidence that are material under the applicable statute and regulations:

1. Petitioner was convicted of a felony offense relating to the unlawful manufacture, distribution, prescription, or dispensing of a controlled substance within the meaning of section 1128(a)(4) of the Act. I.G. Ex. 1 - 4; December 26, 2000 Order.

2. The minimum mandatory period for an exclusion imposed pursuant to section 1128(a)(4) of the Act is five years. Act, section 1128(c)(3)(B).

3. The I.G. properly excluded Petitioner from participation in Medicare and Medicaid for a period of five years pursuant to sections 1128(a)(4) and 1128(c)(3)(B) of the Act. Findings 1 - 2.

4. An administrative law judge is without authority to change the effective date of an exclusion imposed by the I.G.

III. CONCLUSION

I sustain the exclusion imposed by the I.G.

Marion T. Silva

Chief Administrative Law Judge

1. In this decision, I refer to all programs from which Petitioner has been excluded, other than Medicare, as "Medicaid."

2. I note that section 1128(a)(4) applies only in situations where the felony offense occurred after August 21, 1996, the date of the enactment of the Health Insurance Portability and Accountability Act of 1996. The undisputed facts show that Petitioner was convicted of offenses which took place in May and June of 1997. I.G. Ex. 1 - 2.

3. Subpart B of the regulations provides for a mandatory exclusion for a minimum period of five years for individuals convicted of a felony that occurred after August 21, 1996 relating to the unlawful manufacture, distribution, prescription or dispensing of a controlled substance.