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 the Petitioner herein, Steven Michael Cook, M.D., from participation in Medicare, Medicaid, and all other federal health care programs for a period of five years beginning on or about February 19, 2004. The I.G.'s Motion and determination to exclude Petitioner are based on the terms of section 1128(a)(4) of the Social Security Act (Act), 42 U.S.C. � 1320a-7(a)(4). As I shall explain below, the undisputed facts in this case require the imposition of a mandatory five-year exclusion, and my authority in the case simply does not allow me to modify that mandatory exclusion or alter, even in the slightest degree, the date on which it began to run. For those reasons, I grant the I.G.'s Motion for Summary Affirmance.

PROCEDURAL BACKGROUND

Dr. Cook practiced medicine in the State of Iowa in the 1990s and 2000. On June 4, 2001, Dr. Cook was convicted in Iowa District Court for Fayette County on his pleas of guilty to four felony charges of obtaining a Schedule II controlled substance by fraud, deceit, misrepresentation, subterfuge, or by concealment of a material fact, in violation of sections 155A.23(1)(a) and (c), 155A.24, 124.206(1) and (4)(d), and 124.401(1)(c)(8) of the Iowa Code Annotated. I.G. Exs. 2, 5, 6.

As he was required to do by the terms of section 1128(a) of the Act, 42 U.S.C. � 1320a-7(a)(4), the I.G. began the process of excluding Petitioner from participation in Medicare, Medicaid, and all other federal health care programs. Section 1128(a)(4) dictates the mandatory exclusion, for a term of not less than five years, of "(a)ny individual or entity that has been convicted . . . under Federal or State law, of a criminal offense consisting of a felony relating to the unlawful manufacture, distribution, prescription, or dispensing of a controlled substance." Section 1128(c)(3)(B) of the Act; 42 U.S.C. � 1320a-7(c)(3)(B). On January 30, 2004, the I.G. notified Petitioner that he was to be excluded for the minimum mandatory period of five years; the exclusion was to take effect 20 days after the letter's date. I.G. Ex. 1. The record before me does not explain the 32-month period between Petitioner's conviction and the I.G.'s final determination to exclude him.

Petitioner, acting through counsel, timely sought review of the I.G.'s action by letter dated March 19, 2004. I convened a telephonic prehearing conference on May 26, 2004 pursuant to 42 C.F.R. � 1005.6. My purpose in doing so was to discuss the issues presented by the case with both parties and explore with them the procedures best suited for addressing those issues. The parties agreed that the case likely could be decided on written submissions, and I established a schedule for the submission of documents and briefs. All briefing is now complete.

The I.G. has proffered six proposed exhibits (I.G. Exs. 1-6). They are admitted. Petitioner has submitted no exhibits of his own and has not objected to the authenticity of I.G. Exs. 1-6. Moreover, as will be seen, Petitioner does not contest the fact of his conviction and does not contest that it constitutes a sufficient basis for his five-year exclusion under the Act. Petitioner's Brief, at 3, 4. The material facts in this case are therefore not in dispute.

There is an additional undisputed fact in the record before me: Petitioner's license to practice medicine in Iowa was suspended indefinitely on May 3, 2001. I.G. Exs. 3, 4. Petitioner points out that the suspension of his license effectively ended his eligibility to provide medical services to the Medicare and Medicaid programs. He asserts that the extended period between his license suspension and conviction in 2001 and the I.G.'s final action in 2004 operated to create a de facto enhancement of the term of his exclusion from five to well over seven-and-one-half years, and he argues that this result is "arbitrary and capricious and it violates the statutory scheme and imposes an exclusion that is unreasonably long and contrary to the statute." Petitioner's Brief, at 4.

Although Petitioner's argument is reasoned and cogent, it is contradicted in the most direct way by a substantial body of settled authority in this forum. I am bound to follow that authority. Accordingly, and because the I.G.'s Motion for Summary Affirmance is supported by the undisputed material facts and by that well-established law, I grant the Motion, and thereby sustain the I.G.'s determination to exclude Petitioner from participation in Medicare, Medicaid, and all other federal health care programs for a period of five years, effective on or about February 19, 2004.

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:

The applicable statutory, regulatory, and decisional authorities require that both issues be resolved in favor of the I.G.'s position. Section 1128(a)(4) of the Act mandates Petitioner's exclusion since his predicate conviction has been established. The five-year term of exclusion is the irreducible minimum established by section 1128(c)(3)(B) of the Act, 42 U.S.C. � 1320a-7(c)(3)(B), and is therefore ipso jure reasonable.

As I have noted above, however, the real question in this appeal is rather different. Petitioner has conceded that the issues set out above must be resolved as I have announced, but asks only that I order the running of his term of exclusion to begin on the date his license to practice medicine was suspended. The real question is whether I enjoy the authority to do so.

The I.G. correctly points out that I am without that authority and cannot change the effective date of his exclusion. A unanimous body of precedent supports the I.G.: I cannot grant Petitioner the relief he seeks here.

CONTROLLING STATUTES AND REGULATIONS

Section 1128(a)(4) of the Act, 42 U.S.C. � 1320a-7(a)(4) requires the mandatory exclusion from participation in Medicare, Medicaid, and all other federal health care programs of "(a)ny individual or entity that has been convicted . . . under Federal or State law, of a criminal offense consisting of a felony relating to the unlawful manufacture, distribution, prescription, or dispensing of a controlled substance." The terms of section 1128(a)(4) are restated somewhat more broadly in regulatory language at 42 C.F.R. � 1001.101(d). Petitioner does not contest that the nature of his conviction is comprehended in this statutory language, and that nexus is fully established by the evidence before me.

The Act defines "conviction" as including those circumstances "when a judgment of conviction has been entered against the individual . . . by a . . . State . . . court," section 1128(i)(1) of the Act; "when there has been a finding of guilt against the individual . . . by a . . . State . . . court," section 1128(i)(2) of the Act; "when a plea of guilty . . . by the individual . . . has been accepted by a . . . State . . . court," section 1128(i)(3) of the Act; or "when the individual . . . has entered into participation in a . . . deferred adjudication . . . program . . . where judgment of conviction has been withheld," section 1128(i)(4) of the Act. See 42 U.S.C. �� 1320a-7(i)(1)-(4). These definitions are repeated at 42 C.F.R. � 1001.2. Petitioner does not contest that his conviction falls within the statutory and regulatory definition, and his conviction's satisfaction of that definition is fully established in the record before me.

An exclusion based in section 1128(a)(4) is mandatory and the I.G. must impose it for a minimum term of five years. Section 1128(c)(3)(B) of the Act, 42 U.S.C. � 1320a-7(c)(3)(B). The regulatory language of 42 C.F.R. � 1001.102(a) affirms the statutory provision. Although the minimum mandatory term of exclusion is subject to enlargement in some limited circumstances and on proof of carefully-defined factors, in this case the I.G. has not sought to enhance the five-year minimum mandatory term by offering to prove any of them, and for that reason I may not inquire into the existence vel non of any of the specific aggravating or mitigating factors set out at 42 C.F.R. � 1001.102(b) and (c).

FINDINGS OF FACT AND CONCLUSIONS OF LAW

I find and conclude as follows:

1. On June 4, 2001, Petitioner Steven Michael Cook, M.D., was convicted in Iowa District Court for Fayette County on his pleas of guilty to four felony charges of obtaining a Schedule II controlled substance by fraud, deceit, misrepresentation, subterfuge, or by concealment of a material fact, in violation of sections 155A.23(1)(a) and (c), 155A.24, 124.206(1) and (4)(d), and 124.401(1)(c)(8), Iowa Code Annotated. I.G. Exs. 2, 5, 6.

2. The plea, conviction, and sentence described above in Finding 1 constitute a "conviction" within the meanings of sections 1128(a)(4) and 1128(i)(1), (2), and (3) of the Act, and 42 C.F.R. � 1001.2.

3. By reason of his conviction of a felony relating to the unlawful manufacture, distribution, prescription, or dispensing of a controlled substance, Petitioner was subject to, and the I.G. was required to impose, a term of exclusion from participation in Medicare, Medicaid, and all other federal health care programs. Section 1128(a)(4) of the Act.

4. The I.G. properly and reasonably set the term of Petitioner's exclusion at five years, the minimum mandatory term provided by law. Section 1128(c)(3)(B) of the Act; 42 C.F.R. �� 1001.102(b) and 1001.2007(a)(2).

5. An Administrative Law Judge (ALJ) is without the authority to alter in any fashion whatsoever the I.G.'s determination of the effective date of an exclusion imposed pursuant to section 1128(a) of the Act.

6. There are no disputed issues of material fact before me and summary disposition is therefore appropriate in this matter. Carrier Mills Nursing Home, DAB No. 1883 (2003).

DISCUSSION

The essential elements necessary to support an exclusion based on section 1128(a)(4) of the Act are: (1) the individual to be excluded must have been convicted of a criminal offense; (2) the criminal offense must have been a felony; and (3) the felony conviction must have been for conduct related to the unlawful manufacture, distribution, prescription, or dispensing of a controlled substance. Michael J. O'Brien, D.O., DAB CR1150 (2004); Karl Eric Swanson, M.D., DAB CR1002 (2003); Kathleen E. Talbott, M.D., DAB CR772 (2001); Conrad J. Sarnecki, Jr., D.O., DAB CR722 (2000). The material facts alleged by the I.G. are conceded by Petitioner. Those facts fully establish these three essential elements and thus provide an entirely-sufficient legal basis for the exclusion here proposed.

Once a predicate conviction within the purview of section 1128(a) has been demonstrated, exclusion is mandatory. Salvacion Lee, M.D., DAB No. 1850 (2002); Lorna Fay Gardner, DAB No. 1733 (2000); David A. Barrett, DAB No. 1461 (1994). Since the five-year term of exclusion proposed in this case is the irreducible minimum required by section 1128(c)(3)(B) of the Act, as a matter of law it is not unreasonable. 42 C.F.R. �� 1001.2007(a)(1) and (a)(2). Neitra Maddox, DAB CR1218 (2004); Thomas A. Oswald, R.Ph., DAB CR1216 (2004); Mary Jo Izzo, DAB CR1136 (2004); Rose Mary Maye, DAB CR1028 (2003); Norman Imperial, DAB CR833 (2001); Kathleen E. Talbott, M.D., supra.

Petitioner does not deny that he is subject to the mandatory five-year term of exclusion, but he points out with some truth that his exclusion has been imposed in a context shaped by other significant events. His Iowa license to practice medicine was suspended on May 3, 2001, and from that date he has been ineligible to participate in the Medicare and Medicaid programs as an Iowa physician. Thus, on the assumption that he might regain his license at some point before the end of his exclusionary period, his de facto period of program ineligibility would extend from May 3, 2001 to February 19, 2009 and would amount to a period of seven years and nine months.

The cause of this additional 33-month period of ineligibility is quite clear, but the reason for it is not. The cause is the 32-month period between Petitioner's conviction on June 4, 2001 and the I.G.'s final action to exclude Petitioner on January 30, 2004. The reason for the I.G.'s Fabian strategy remains obscure. That very obscurity lies at the heart of Petitioner's grievance with the delay:

Petitioner's Brief, at 5.

This is an argument of more than casual attractiveness, but it is not an argument made for the first time here, and it is not an argument by which the Departmental Appeals Board (Board) has been much impressed. Indeed, from its first opportunity to consider the argument Petitioner now advances, the Board has resolutely rejected it.

In 1990, an ALJ of this forum was shown a 19-month inadvertent delay between predicate event and the I.G.'s notice of exclusion. That ALJ accepted the underlying proposition urged on me by Petitioner today--that due process of law and fundamental fairness required reasonable notice of an intended exclusion and a prompt hearing on it--and granted the relief Petitioner seeks from me here, by setting a retroactive effective date for the beginning of the exclusion. Samuel W. Chang, M.D., DAB CR74 (1990). On appeal, the Board rejected the petitioner's argument and the ALJ's analysis, reversed the decision's ruling and remedy, and laid down the rule that has governed this question ever since: the timing of the I.G.'s decision to effect an exclusion is discretionary and fundamentally non-reviewable, and an ALJ is absolutely without authority to alter the beginning or effective date of such an exclusion as determined by the I.G. Samuel W. Chang, M.D., DAB No. 1198 (1990).

The Board has applied the rule it fashioned in Chang repeatedly, and in applying it has not been troubled by substantial delays between predicate events and I.G. actions. A period of 31 months' delay did not deter the Board from invoking the rule in Chander Kachoria, R.Ph., DAB No. 1380 (1993); nor did 16 months give it concern in Richard G. Philips, D.P.M., DAB No. 1279 (1991). Sixteen months were at issue in David D. DeFries, D.C., DAB No. 1317 (1992) as well, but no difference is apparent between the Board's treatment of that delay and its disposition of a 12-month gap in Shanti Jain, M.D., DAB No. 1398 (1993) or the relatively-brief 10 months' lacuna in David S. Muransky, D.C., DAB No. 1227 (1991). Indeed, the Board's decisions have given no indication that there might be some upward limit on the length of I.G delay it is prepared to countenance. This potential for unlimited and non-reviewable I.G. delay in taking mandatory action is precisely the situation against which Petitioner protests in his Brief.

But while the Board has given no indication that there might be some limit on the I.G.'s discretion to delay acting on its mandatory obligation, the ALJs of this forum have applied the Chang rule to delays much greater than any directly reviewed by the Board. For example, in Morton Markoff, D.O., DAB CR538 (1998), the delay between predicate event and I.G. action was 53 months; in Ishfaq Pendi, M.D., DAB CR368 (1995), the delay was 44 months; and in Douglas Edmund Foster, L.P.N., DAB CR495 (1997) the delay was 35 months. Application of the Chang rule in cases where the I.G. has temporized for two years or more is not uncommon: see, e.g., Annamali Ashokan, M.D., DAB CR1032 (2003); Kathleen E. Talbott, M.D., supra; Alfredo Rodríguez-Machado, DAB CR706 (2000); and Randall E. Wierzba, DAB CR172 (1992). I have recently applied the Chang rule in a case where the I.G. waited slightly over 31 months before taking the steps mandated by section 1128(a) of the Act. Neitra Maddox, supra.

Petitioner's argument runs directly counter to this settled body of authority. The Chang rule invests the I.G. with non-reviewable discretion to choose the time for beginning the mandatory exclusion process contemplated by section 1128(a) of the Act, and thus effectively to choose the date on which such an exclusion will begin to run. The Chang rule does not contemplate the possibility that in some future case the I.G. might delay taking mandatory action long enough for the delay to be seen as abusive, or that the strategic goal served by such an extended delay might be seen as improper; in fact, the Chang rule attempts no distinction among delays caused by deliberate tactical choice, avoidable mistake, or excusable oversight. But the Chang rule applies to the facts of this case and controls its outcome: I may not grant Petitioner the relief he requests.

CONCLUSION

For the reason set out above, the I.G.'s Motion for Summary Affirmance should be, and it is, GRANTED. The I.G.'s exclusion of Petitioner Steven Michael Cook, M.D., from participation in Medicare, Medicaid, and all other federal health care programs for a term of five years, pursuant to the terms of section 1128(a)(4) of the Act, 42 U.S.C. � 1320a-7(a)(4), is thereby sustained.