DECISION

It is my decision to sustain the determination of the Inspector General (I.G.) to exclude Petitioner, Humberto Rojas, M.D., from participating in Medicare, Medicaid, and all other federal health care programs for a period of five years. I base my decision 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 "felony relating to the manufacture, distribution, prescription, or dispensing of a controlled substance," within the meaning of section 1128(a)(4) of the Social Security Act (Act).

This case is before me pursuant to a request for hearing filed by the Petitioner on October 27, 2002. The I.G. is represented by the Office of Counsel. Petitioner appears on his own behalf, although advised of his right to retain legal representation.

By letter dated September 30, 2002, the I.G. notified Petitioner that he was being excluded from participation in the Medicare, Medicaid, and all federal health care programs as defined in section 1128B(f) of the Act for a period of five years. The I.G. informed Petitioner that the action was taken under section 1128(a)(4) of the Act, due to his conviction of a criminal offense as defined in section 1128(i) of the Act, related to the unlawful manufacturing, distribution, prescription, or dispensing of a controlled substance.

The parties agreed that this matter could be decided based on written arguments and documentary evidence, and that an evidentiary hearing was unnecessary. Each side has made written submissions in support of their respective contentions. The I.G. submitted seven proposed exhibits. These have been identified as I.G. Exhibits (Exs.) 1 - 7. Petitioner proposed 21 exhibits (P. Exs. 1 - 21). The I.G. filed an objection to Petitioner's proposed exhibits 6 - 21, as irrelevant to the issues in this case. Petitioner, on the other hand, believes that those documents shed light on the value of his professional services to the Hispanic community of Flint, Michigan. It is my ruling that Petitioner, who is appearing pro se, may make use of whatever argument he deems appropriate, regardless of its probative value. Thus, I deny CMS's motion objecting to Petitioner's exhibits. I therefore, admit P. Exs. 1- 21.

Petitioner is a medical doctor who was indicted in a superseding indictment filed on August 18, 1999, charging him with illegal distribution of controlled prescription drugs. I.G. Ex. 5. On November 3, 1999, he entered a plea of guilty to 9 counts of the superseding indictment in the United States District Court for the Eastern District of Michigan. I.G. Ex. 7. The Court sentenced Petitioner to a prison term of 6 months for each count and a $900.00 court assessment. I.G. Ex. 7.

I. Issues

1. Whether the I.G. had a basis upon which to exclude Petitioner from participating in the Medicare, Medicaid, and all other federal health care programs.

2. Whether the five year exclusion imposed by the I.G. is unreasonable.

II. Applicable Law and Regulations

Section 1128(a)(4) 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)), any individual convicted under federal or State law, of a criminal offense relating to the manufacture, distribution, prescription, or dispensing of a controlled substance.

The exclusion under section 1128(a)(4) of the Act must be for a minimum period of five years. Section 1128(c)(3)(B) of the Act. However, aggravating factors can serve as a basis for lengthening the period of exclusion. 42 C. F. R. � 1001.102(b).Pursuant to 42 C. F. R. � 1001.2007, a person excluded under section 1128(a)(4) of the Act may file a request for hearing before an Administrative Law Judge.

Section 1128(b) of the Act authorizes the Secretary to exclude individuals from receiving payment for services that would otherwise be reimbursable under Medicare, Medicaid, or other federal health care programs.

III. Findings and Discussion

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

The Petitioner is a physician who was licensed to practice medicine in the State of Michigan. On August 18, 1999, he was indicted in a superseding indictment for unlawfully distributing, without a legitimate medical purpose and outside the course of his professional practice, certain controlled substances, in violation of Title 21, U.S.C. � 841(a)(1). I.G. E.x. 5. Pursuant to Rule 11 of the Federal Rules of Criminal Procedure, Petitioner entered into a plea agreement accepting responsibility for his illegal conduct, and on November 3, 1999, he pleaded guilty to counts 4, 51, 63, 71, 97, 98, 102, 105, and 118. I.G. Ex. 6. The Court accepted his plea on August 1, 2000, and entered a judgment of conviction against Petitioner for illegal distribution of controlled prescription drugs in violation of 21 U.S.C. � 841. Petitioner was sentenced to a 6 month prison term for each count concurrently, and he was ordered to pay a $900 court assessment. I. G. Ex. 7.

It has been established, and Petitioner does not dispute, that he was convicted of a felony pursuant to section 1128(b)(4) of the Act.

When the I.G. imposes an exclusion pursuant to subpart B of part 1001 of 42 C. F. R., for the mandatory five-year period, the length of such exclusion is not an issue and will not be considered. 42 C. F. R. � 1001.2007(a)(2). Aggravating factors that justify enlarging the exclusion period may be taken into account, but the five-year term will not be shortened. Petitioner admits that he was convicted of a criminal offense relating to the manufacture, distribution, prescription, or dispensing of a controlled substance. Somehow, however, he suggests that no exclusion at all would be appropriate in his case. But neither the law nor regulation provide for such a window of opportunity.

Through the documentary evidence submitted, Petitioner suggests that his mental condition at the time of the commission of the offense and the need for his professional services in the Hispanic community of Flint, Michigan should suffice to shield him from the I.G.'s exclusion action. I note that 42 C.F.R. � 1001.101(c)(2) establishes that the exclusion period may be shortened if 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. However, that applies only to situations where the I.G. has imposed an exclusion for a period greater than five years because of the existence of aggravating circumstances. In this case, I do not need to look into the record of the criminal proceedings, because no aggravating factors were considered by the I.G. with a view to enlarging the exclusion period beyond five years. Petitioner's suggestion that a waiver should be granted based on his assertion that he is the sole community physician or a sole source of essential specialized services is also misplaced. Section 1128(c)(3)(B) of the Act states that only the Secretary may exercise this type of authority and only upon the request of a State. Additionally, a State request for a waiver would only apply to State Medicaid programs and not federal health care programs. 42 C.F.R � 1001.102(c).

In conclusion, once it has been established that Petitioner was convicted of a felony under section 1128(a)(4) of the Act, I am without discretion to impose an exclusion for less than the five-year mandatory minimum.

IV. Conclusion

Sections 1128(a)(4) and 1128(c)(3)(B) of the Act mandate that Petitioner be excluded from Medicare, Medicaid, and all other federal health care programs for a period of at least five years because he was convicted of a criminal offense relating to the unlawful manufacture, distribution, prescription, or dispensing of a controlled substance.