SUBJECT:

Handel J. Roberts, M.D.

Petitioner,

The Inspector General

DECISION

PROCEDURAL HISTORY

Petitioner was notified of his exclusion by letter dated August 31, 2001. The Inspector General (I.G.) cited section 1128(a)(4) of the Act (42 U.S.C. � 1320a-7(a)(4)) as the basis for Petitioner's exclusion. Petitioner appeals the I.G.'s action by letter dated October 15, 2001, arguing that he was not convicted within the meaning of the Act.

On December 20, 2001, the case was assigned to me for hearing and decision. On January 28, 2002, I conducted a telephonic prehearing conference, the substance of which is memorialized in my order of February 4, 2002. The I.G. filed its brief on February 27, 2002, with attached exhibits 1 through 7 (I.G. Ex.). Petitioner filed his response on March 29, 2002, with exhibits A and B (P. Ex.). The I.G. filed a reply brief on April 12, 2002. The offered exhibits are admitted.

There are no disputed issues of material fact in this case. The only issue is whether Petitioner was "convicted" within the meaning of section 1128(i) of the Act (42 U.S.C. � 1320a-7(i)). If Petitioner was convicted, then his exclusion is mandatory under section 1128(a) and the Act specifies that the minimum period of exclusion is five years. The I.G. did not extend the statutory minimum five-year period in this case. Thus, there is no issue related to the reasonableness of the period of mandatory exclusion. Furthermore, Petitioner concedes that he is subject to permissive exclusion pursuant to section 1128(b)(4) (42 U.S.C. � 1320a-7(b)(4)) because his medical license was suspended indefinitely by the State of Ohio. Petitioner makes no argument about the appropriate length of a permissive exclusion. Therefore, he has waived any argument that a permissive exclusion should be less than five years in duration or the period of suspension of his medical license, whichever is greater. ⁽¹⁾

Summary judgment is appropriate and no hearing is necessary in this case for a full and fair disposition. The only issue may be resolved as a question of law.

FINDINGS OF FACT

The following findings of fact are based upon the uncontested and undisputed assertions of fact in the parties' pleadings and the exhibits admitted.

1. Petitioner was, on the date of the I.G. action, a medical doctor licensed by the State of Ohio and authorized to participate in Medicare, Medicaid, and all federal health care programs. I.G. Ex. 3.

2. On September 20, 2000, in the Stark County Common Pleas Court, criminal docket number 2000CR0884, before Judge John G. Haas, Petitioner entered guilty pleas to eight counts of illegally processing drug documents by making false prescriptions to obtain controlled substances for his personal use. I.G. Ex. 5.

3. Petitioner entered guilty pleas on September 20, 2000, pursuant to a pretrial agreement which provided for the Prosecutor to stipulate to "Intervention in Lieu of Conviction" as provided by Ohio law (Ohio Revised Code 2951.041) ⁽²⁾ rather than conviction with sentencing. I.G. Ex. 6.

4. On September 20, 2000, Judge Haas accepted Petitioner's guilty pleas and found Petitioner eligible for Intervention in Lieu of Conviction. Judge Haas ordered a stay in the criminal proceeding and ordered a one to three year period of rehabilitation under the supervision of the County Adult Probation Department. The order provided that if Petitioner successfully completed rehabilitation, no judgment of conviction would be entered on the public record, but if he failed rehabilitation, judgment of conviction would be entered. I.G. Ex. 6; P. Ex. B.

5. On December 28, 2001, Judge Haas ordered that Petitioner's Treatment in Lieu of Supervision be terminated, that Petitioner be discharged, and that all civil rights be restored. P. Ex. A.

6. On December 13, 2000, the State Medical Board of Ohio entered a consent agreement with Petitioner pursuant to which Petitioner's licences to practice medicine and surgery were suspended for an indefinite period but not less than one year. The basis for the action was Petitioner's admission of conduct underlying his guilty pleas on September 20, 2000 to eight counts of illegally processing drug documents. I.G. Ex. 3.

7. By letter dated August 31, 2001, the I.G. advised Petitioner that he was being excluded from further participation in Medicare, Medicaid, and all federal health care programs for a period of five years, effective 20 days after the date of the letter, based upon Petitioner's conviction as described in Findings 3 and 4.

8. The I.G. cites no aggravating factors in this case that justify a period of exclusion beyond the five-year minimum.

9. Two aggravating factors are present that would justify exclusion in excess of the minimum period: (a) the acts for which Petitioner was convicted occurred over a period of one year or more from September 15, 1998 through May 24, 2000 (I.G. Ex. 4); and (b) the Petitioner was subject to adverse action by The State Medical Board of Ohio, which suspended Petitioner's medical license for an indefinite period but not less than one year (I.G. Ex. 3).

CONCLUSIONS OF LAW

1. Summary judgment is appropriate in this case as there are no material facts in dispute.

2. Petitioner was convicted within the meaning of section 1128(i) of the Act (42 U.S.C. 1320a-7(i)).

3. Petitioner was convicted, pursuant to his pleas, of eight counts of illegally processing prescription documents, a violation of section 1128(a)(4) of the Act (42 U.S.C. 1320a-7(a)(4)).

4. Petitioner must be excluded from participation in any federal health care program for a minimum period of five years pursuant to section 1128(c)(3)(B) of the Act (42 U.S.C. � 1320a-7(c)(3)(B)) due to his conviction.

DISCUSSION

A. APPLICABLE LAW

Petitioner's right to a hearing by an ALJ and judicial review of the final action of the Secretary is provided by section 1128(f) of the Act (42 U.S.C. � 1230a-7(f)). Petitioner's request for a hearing was timely filed and I do have jurisdiction. However, the Secretary has by regulation limited my scope of review to two issues: (1) whether there is a basis for the imposition of the sanction; and, (2) whether the length of the exclusion is unreasonable. 42 C.F.R. � 1001.2007(a)(1). The standard of proof is a preponderance of the evidence and there may be no collateral attack of the conviction that is the basis for the exclusion. 42 C.F.R. � 1001.2007(c) and (d). 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) and (c).

Pursuant to section 1128(a)(4) of the Act, the Secretary must exclude from participation in the Medicare and Medicaid programs any individual or entity that has been convicted of a felony criminal offense related to the unlawful manufacture, distribution, prescription, or dispensing of a controlled substance. Section 1128(i) of the Act (42 U.S.C. � 1230a-7(i)) defines the term "convicted" as used in section 1128(a) as follows:

an individual or entity is considered to have been "convicted" of a criminal offense -

(1) when a judgment of conviction has been entered against the individual or entity by a Federal, State, or local court, regardless of whether there is an appeal pending or whether the judgment of conviction or other record relating to criminal conduct has been expunged;

(2) when there has been a finding of guilt against the individual or entity by a Federal, State, or local court;

(3) when a plea of guilty or nolo contendere by the individual or entity has been accepted by a Federal, State, or local court; or

(4) when the individual or entity has entered into participation in a first offender, deferred adjudication, or other arrangement or program where judgment of conviction has been withheld.

Section 1128(i) of the Act.

Section 1128(c)(3)(B) of the Act provides that an exclusion imposed under section 1128(a)(4) of the Act shall be for a minimum period of five years, unless specified aggravating or mitigating factors are present which form the basis for lengthening or shortening the period of exclusion. See also 42 C.F.R. � 1001.102(a), (b), and (c). Only if the aggravating factors justify an exclusion of longer than five years, may mitigating factors be considered as a basis for reducing the period of exclusion to no less than five years. 42 C.F.R. � 1001.102(c).

B. ISSUE

Whether Petitioner was convicted within the meaning of section 1128(a)(4) of the Act and thus subject to minimum five-year exclusion from participation in Medicare, Medicaid, and all federal health care programs.

C. ANALYSIS

1. Summary judgment is appropriate.

Summary disposition is appropriate where either: there are no disputed issues of material fact and the only questions that must be decided involve application of law to the undisputed facts; or, the moving party must prevail as a matter of law even if all disputed facts are resolved in favor of the party against whom the motion is made. A party opposing summary disposition must allege facts which, if true, would refute the facts relied upon by the moving party. See, e.g., Fed.R.Civ.P. 56(c). There are no issues of material fact in dispute in this case. The only issue involves interpretation of the statutory definition of the term "convicted." No hearing is required for a full adjudication of the issue and summary judgment is appropriate.

2. Petitioner was properly excluded pursuant to section 1128(a)(4) of the Act because he was convicted as that term is defined by section 1128(i) of the Act.

There is no dispute that Petitioner entered pleas of guilty to eight counts of illegally processing prescriptions by making false prescriptions to obtain a controlled substance for his personal abuse. The pleas were entered and accepted by Judge Haas on September 20, 2000. Petitioner pled guilty pursuant to a pretrial agreement under which the prosecutor agreed to recommend that the judge subject Petitioner to "Intervention in Lieu of Conviction" as allowed by Ohio law (Ohio Revised Code 2951.041) rather than entering a judgment of conviction with sentencing.

The I.G. notified Petitioner that he was excluded from participation in Medicare, Medicaid and all other federal health care programs pursuant to section 1128(a)(4) of the Act due to his conviction for an offense related to a controlled substance. Petitioner argues that he is not subject to exclusion pursuant to section 1128(a)(4) because he was not "convicted" within the meaning of the Act.

The parties arguments focus on section 1128(i) of the Act which provides the definition of the term "convicted" as used in section 1128(a)(4), specifically section 1128(i)(4) which provides that an individual or entity is "convicted:"

(4) when the individual or entity has entered into participation in a first offender, deferred adjudication, or other arrangement or program where judgment of conviction has been withheld.

Petitioner argues that "Intervention in Lieu of Conviction" or "Treatment in Lieu of Conviction" as provided by Ohio law and the program in which he participated by order of Judge Haas does not fall within section 1128(i)(4) of the Act and thus he was not convicted. I note that there are actually four subsections to section 1128(i), stated in the disjunctive. Because 1128(i)(3) clearly applies in Petitioners case, it is not necessary to decide the issue debated by the parties.

Section 1128(i)(3) of the Act provides that an individual or entity is "convicted" for purposes of section 1128(a) "when a plea of guilty or nolo contendere by the individual or entity has been accepted by a Federal, State, or local court." There is no dispute that Petitioner pled guilty to eight felony counts of illegally making prescriptions and that Judge Haas accepted those pleas. I.G. Ex. 5. Nothing more is required by section 1128(i) to constitute a conviction. Accordingly, I conclude that Petitioner was "convicted" within the meaning of 1128(a)(4).

Whether or not the program to which Petitioner was diverted satisfied the definition of section 1128(i)(4) of the Act is not controlling. However, it is clear from the plain language of Ohio Revised Code section 2951.041 that it is "an arrangement or program where judgment of conviction has been withheld" as described by section 1128(i)(4). The procedure established by the Ohio statute for "Intervention in Lieu of Conviction" is simple. The Ohio statute requires that an offender enter a guilty plea and that the judge find the offender guilty by accepting the guilty plea. If the judge makes other findings consistent with the criteria of the program, the offender can be directed to rehabilitation. If the offender successfully completes the term of rehabilitation, the charges are dismissed and judgment of conviction is not entered on the public record. If the offender fails rehabilitation, then the court enters a finding of guilty and sentences the offender. This program is a little different from similar programs in other states that have been found to fit within section 1128(i)(4). See e.g., Robert Mark Armentrout, DAB CR786 (2001); Barbara Hart, DAB CR727 (2001); Patricia Konyeaso, DAB CR827 (2001); Conrad J. Sarnecki, DAB CR722 (2000); Michael P. Hiotis, DAB CR316 (1994).

Further, finding that the Ohio program amounts to a conviction for purposes of section 1128(a)(4), contrary to arguments of Petitioner, is consistent with Congressional intent. Section 1128(a)(4) clearly provides for exclusion of those convicted of felony drug offenses. Section 1128(i)(4) provides for exclusion even for those who go into a diversion program and never have their conviction recorded. Congress draws no distinction in section 1128(i) between diversions related to fraud and drug offenses, although it is clear from the citation to legislative history provided by Petitioner that there was debate on 1128(i). The plain language of the statute is the best expression of Congressional intent and, when the language is clear as it is in section 1128(i), there is no need to resort to legislative history to attempt to discern a different meaning. Florence Peters, DAB No. 1706 (1999).

3. There is no issue related to the reasonableness of the period of exclusion in this case.

Petitioner does not challenge that, if he was "convicted" within the meaning of the Act, the Act imposes a minimum exclusion of five years. The I.G., the Secretary, and I have no discretion or authority to shorten the five-year minimum exclusion. Act, section 1128(c)(3)(B); 42 U.S.C. � 1320a-7(c)(3)(B).

The effective date of Petitioner's exclusion is April 19, 2001, 20 days after the March 30, 2001, I.G. notice of exclusion. 42 C.F.R. � 1005.20(b).

CONCLUSION

For the foregoing reasons, Petitioner is excluded from participation in Medicare, Medicaid, and all other federal health care programs for a period of five years effective April 19, 2001.

Keith W. Sickendick

Administrative Law Judge

1. I could view Petitioner's concession as mooting this appeal because there is nothing for me to decide - the net effect of his concession being that he will be excluded for at least five years and possibly more whether he is excluded under either the mandatory or permissive provisions of the Act. However, out of an abundance of caution, I address Petitioner's substantive legal argument.

2. A change in Ohio law resulted in a change from the phrase "treatment in lieu of conviction" to "treatment in lieu of supervision."