SUBJECT:

Muhamad Salah Zoobi,

Petitioner,

The Inspector General.

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)(4) of the Act; and

2. Whether the five-year term of the exclusion is unreasonable.

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 convictions have been established. A five-year term of exclusion is the minimum period of exclusion established by section 1128(c)(3)(B) of the Act, 42 U.S.C. � 1320a-7(c)(3)(B), and is therefore reasonable as a matter of law.

III. 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 deny that at least three of the felonies to which he pleaded nolo contendere are comprehended in this statutory language, and that nexus is fully established by the evidence before me.

The Act defines "conviction" as including, inter alia, those circumstances "when a plea of guilty or nolo contendere . . . by the individual . . . has been accepted by a . . . State . . . court," section 1128(i)(3) of the Act, 42 U.S.C. �� 1320a-7(i)(3), and "when the individual . . . 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)(4) of the Act, 42 U.S.C. � 1320a-7(i)(4). These definitions are repeated at 42 C.F.R. � 1001.2. Petitioner argues that, in spite of the plain language of the statute and regulation, the proceedings below cannot be regarded as a "conviction.

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).

IV. FINDINGS AND CONCLUSIONS

I find and conclude as follows:

1. On January 30, 2003, in the Circuit Court of Okaloosa County, Florida, Petitioner Muhamad Salah Zoobi pleaded nolo contendere to five felonies: three counts of obtaining controlled substances by fraud or forging a prescription; one count of possession of a controlled substance; and one count of grand theft in connection with obtaining prescription medications. I.G. Ex. 2.

2. The trial court accepted the pleas of nolo contendere, placed Petitioner on two years' probation, and withheld adjudication of guilt and final imposition of sentence subject to Petitioner's successful completion of the probationary period. I.G. Ex. 3.

3. On November 30, 2004, 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 five years, based on the authority set out in section 1128(a)(4) of the Act.

4. On December 20, 2004, Petitioner perfected his appeal from the I.G.'s action by filing a timely hearing request.

5. The trial court's acceptance of Petitioner's nolo contendere pleas to the three felony charges of obtaining drugs by fraud or forging a prescription constitutes "conviction" within the meaning of sections 1128(a)(4) and 1128(i)(3) of the Act, and 42 C.F.R. � 1001.2.

6. Petitioner's entry into the deferred adjudication program described above constitutes "conviction" within the meaning of sections 1128(a)(4) and 1128(i)(4) of the Act, and 42 C.F.R. � 1001.2.

7. The I.G.'s exclusion of Petitioner for a period of five years is supported by fact and law and is not unreasonable. I.G. Exs. 2, 3; Findings and Conclusions 1-6, supra.

8. There are no remaining disputed issues of material fact and summary disposition is therefore appropriate in this matter.

V. 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. Deborah Jo Oltman, R.N., DAB CR1254 (2004); Stephen Michael Cook, M.D., DAB CR1234 (2004); 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 second and third of the three essential elements in a section 1128(a)(4) exclusion are proven here without serious argument. Records of the Circuit Court of Okaloosa County, Florida, show conclusively that on December 11, 2002, Petitioner was charged with five felonies related to controlled substances. The three felony charges on which the I.G. relies in support of the proposed exclusion were based on Petitioner's use of fraudulent prescriptions to obtain specifically-named controlled substances such as oxycodone, hydrocodone, and adderal. One felony charge was based on his unlawful possession of hydrocodone and oxycodone, and one felony charge of grand theft was premised on his having unlawfully obtained prescription medications from the Fort Walton Beach Medical Center. I.G. Ex. 1. On January 30, 2003, Petitioner pleaded nolo contendere to all five felony charges. I.G. Exs. 2, 3. The status of the crimes to which Petitioner pleaded nolo contendere as felonies, and the nexus of three of those crimes to the "unlawful manufacture, distribution, prescription, or dispensing of a controlled substance" as required by section 1128(a)(4) of the Act, are not directly contested by Petitioner, and are in any case fully established on the record before me. Were additional evidence of that status and that nexus desired, it would be found in I.G. Exs. 4 and 5, the records of the Florida Board of Health's proceedings against Petitioner. Were it necessary that I consider them, I would find them credible and reliable for that purpose. Narendra M. Patel, M.D., DAB No. 1736 (2000); Tanya A. Chuoke, R.N., DAB No. 1721 (2000); Berton Siegel, D.O., DAB No. 1467 (1994); Dewayne Franzen, DAB No. 1165 (1990).

It is the first essential element that Petitioner denies: he asserts that the proceedings below did not result in his "conviction." Following the offer and acceptance of the Petitioner's nolo contendere pleas, the trial judge placed Petitioner on two years' supervised probation and withheld final adjudication of guilt and imposition of sentence. I.G. Ex. 3. Petitioner's principal focus is on the trial court's deferral of final adjudication, and his thesis is that the definition of "conviction" to include entry into a deferred-adjudication program, as set out at section 1128(i)(4) of the Act, should be limited in its application to only those exclusions based on sections 1128(a)(1) and (a)(3) of the Act, 42 U.S.C. � 1320a-7(a)(1) and (a)(3).

By this limitation, Petitioner argues that Congress' intent in drafting and passing the statutory language would be more faithfully effected. Petitioner represents Congressional intent as desiring that only those malefactors who commit offenses related to the delivery of items or services in protected health care programs, or who commit felony offenses related to fraud, theft, or similar financial misconduct in such programs, should stand "convicted" after deferred adjudications. According to Petitioner, Congress intended that those who criminally abuse or criminally neglect their patients and are to be excluded pursuant to section 1128(a)(2), or who commit felony violations of state or federal controlled-substances laws and are to be excluded pursuant to section 1128(a)(4), should not stand "convicted" after deferred adjudications, and should be free to return to participation in the protected health care programs. Petitioner offers his interpretation of Congress' intent without citation of supporting authority, in studied avoidance of the pellucid language and history of the statute, and in frank acknowledgment that his interpretation is directly contradicted by Carolyn Westin, DAB No. 1381 (1993), aff'd sub nom Westin v. Shalala, 845 F. Supp. 1446 (D. Kan. 1994).

Petitioner's effort to explicate Congressional intent may be bold, but it is not novel in this forum, and it has not heretofore been successful. I am unable to improve on the analysis of an identical argument, or on the language employed by the Administrative Law Judge (ALJ) in explaining her rejection of it, to be found in Joseph S. Scheidler, D.O., DAB CR1143 (2004):

Because the passage refers to individuals who "admitted that they engaged in criminal abuse against a Federal health program," Petitioner argues that section 1128(i)(4) should only apply to those excluded pursuant to section 1128(a)(1). P. Br. at 7. Of course, the plain language of the statute is the best expression of Congressional intent. When the language is clear, there is no need to resort to legislative history to attempt to discern a different meaning. Florence Peters, DAB No. 1706 (1999). The plain language of section 1128(i) could not be clearer -- it applies to all exclusions under section 1128(a). Further, the I.G.'s construction of section 1128(i)(4) is consistent with the cited legislative history. The passage cited by Petitioner is part of a 1986 discussion about improving the I.G.'s ability to protect Medicare and Medicaid. Those improvements included adding a federal definition of the term "convicted." Congress later expanded the I.G.'s exclusion authority and continued to apply the definition of "convicted" to these new authorities. Section 1128(a)(4) was enacted in 1996 (Health Insurance Portability and Accountability Act of 1996, Pub. L. No. 104-191, � 211(b)(1)), ten years after the adoption of the federal definition. If Congress had not wanted the definition to apply to section 1128(a)(4), it would have said so.

Another ALJ of this forum, writing in Victoria L. Winterhalter, DAB CR1114 (2003), addressed the question in similar language and arrived at an identical conclusion:

Petitioner contends that the legislative history of section 1128 of the Act establishes that Congress wrote section 1128(i)(4) only to cover first offender and deferred adjudication dispositions in cases that involved financial crimes against Medicare. Petitioner's brief at 6 - 7. Thus, according to Petitioner, the type of deferred adjudication that Petitioner entered into -- in a case involving substance abuse and no program fraud -- simply is beyond the purview of the Act.

Petitioner's argument is without merit. First, the plain language of section 1128(i)(4) does not differentiate cases of program fraud from cases of substance abuse. There is no need here to resort to legislative history to interpret the Act because the meaning of section 1128(i)(4) is unambiguous. On its face, it applies to convictions for all types of offenses and not simply to convictions of program fraud. Second, the legislative history relied on by Petitioner addresses a version of the Act that was enacted by Congress in 1986. H.R. Rep. No. 99-727, at 68 (1986), reprinted in 1986 U.S.C.C.A.N. 3607, 3658. The Act has been amended numerous times since 1986 and section 1128(a)(4) was not added until later. The kinds of offenses for which a person may be convicted and which are covered by the exclusion provisions of the Act increased with each amendment after the 1986 enactment. It was unnecessary for Congress to qualify its definition of conviction with each subsequent broadening of the reach of the Act in order for that definition to apply to the newly added crimes.

The congruent reasoning of the two ALJs fully answers Petitioner's argument in this case. Because their reasoning is cogent and apposite, I adopt it and apply it here as I hold that Petitioner's participation in Florida's deferred-adjudication program constitutes "conviction" within the meaning of sections 1128(a)(4) and 1128(i)(4) of the Act, and 42 C.F.R. � 1001.2.

The I.G. correctly points out that the trial court's acceptance of Petitioner's nolo contendere pleas represents a second, and entirely independent, basis for regarding the proceedings in state court as culminating in Petitioner's "conviction." Though Petitioner's argument concerning section 1128(i)(4) of the Act and deferred adjudications is broad enough to include its possible application to the definition of "conviction" based on the acceptance of a nolo contendere plea set out at section 1128(i)(3) of the Act, he does not attempt that argument directly. That is, he does not address the fact that whatever the effect of a deferred or withheld adjudication of his guilt might be, his nolo contendere pleas incontestably were offered, and just as incontestably were accepted by the trial court. It is patent that unless and until the trial court accepted Petitioner's nolo contendere pleas, the process represented by the trial court's Order Withholding Adjudication of Guilt and Placing Defendant on Probation (I.G. Ex. 3) simply could not have begun. Douglas L. Reece, D.O., DAB CR305 (1994); Robert W. Emfinger, R.Ph., DAB CR92 (1990). I hold that since Petitioner's pleas of nolo contendere were accepted by the trial court, those pleas constitute "conviction" within the meaning of sections 1128(a)(4) and 1128(i)(3) of the Act, and 42 C.F.R. � 1001.2, and do so independently of the basis provided by section 1128(i)(4) of the Act.

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). The term of such an exclusion must be for a minimum of five years, and neither I nor the Board may reduce such a term to less than five years since it is reasonable as a matter of law. Mark K. Mileski, DAB No. 1945 (2004).

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 Muhamad Salah Zoobi 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, is thereby sustained.

RICHARD J. SMITH

Administrative Law Judge