SUBJECT:

Detra Tate Fairley,

Petitioner,

The Inspector General.

DECISION

This matter is before me on the Inspector General's (I.G.'s) Motion for Summary Affirmance of his determination to exclude the Petitioner herein, Detra Tate Fairley, from participation in Medicare, Medicaid, and all other federal health care programs for a period of two years. The I.G.'s Motion and determination to exclude Petitioner are based on the terms of section 1128(b)(1)(B) of the Social Security Act (Act), 42 U.S.C. � 1320a-7(b)(1)(B). As I shall explain below, the facts in this case require the imposition of the exclusion, but do not support the reasonableness of the I.G.'s determination to set that period of exclusion at two years. For those reasons, I grant the I.G.'s Motion for Summary Affirmance only as to the imposition of the exclusion, and I establish the period of that exclusion at three years, the mandatory minimum period required by statute and regulation.

I. Procedural Background

Detra Tate Fairley was Vice President of Faith Home Health Services, Inc. (FHHS) during the time relevant to this case, and owned approximately five percent of the corporation. Petitioner's mother, Paulette White Jackson, was the President of FHHS and retained approximately 85 percent ownership of the corporation. On January 24, 2001, Petitioner and Ms. Jackson appeared together in the United States District Court for the Middle District of Louisiana. Each tendered her individual guilty plea to a one-count criminal Bill of Information charging violation of 29 U.S.C. � 1021(d)(1) and 18 U.S.C. � 2. The charged offense was a misdemeanor.

Judgment of Conviction and sentence was imposed against each defendant on June 14, 2001. Petitioner was sentenced to a one-year term of probation, fined $150, and required to pay a $25 assessment. Paulette White Jackson was sentenced to a one-year term of probation, fined $300, and ordered to pay a $25 assessment.

The I.G. began exclusion proceedings against Jackson in September, 2002, based on section 1128(b)(1)(B) of the Act, 42 U.S.C. � 1320a-7(b)(1)(B). That exclusion was upheld for an enhanced period of four years in Paulette White Jackson, DAB No. 1915 (2004).

On December 7, 2001, relying purportedly on the authority of section 1128(a) of the Act, the I.G. began the process of excluding Petitioner by notifying her that her exclusion was being considered. On December 30, 2004, the I.G. notified Petitioner that she was to be excluded from participation in Medicare, Medicaid, and all other federal health care programs for two years, as authorized by the terms of section 1128(b)(1) of the Act, 42 U.S.C. � 1320a-7(b)(1). The I.G.'s notice letter provided the following justification for the two-year period of exclusion:

Your period of exclusion would have been greater than [the three-year mandatory minimum] because our records contain evidence of these aggravating factors:

(1) financial loss of approximately $261,000; and (2) the length of the scheme involved in your conviction was from approximately July 1996 through approximately March 1998. However, we have established a period of exclusion of 2 years due to the length of time it has taken to implement your exclusion.

I.G.'s Notice of Exclusion dated December 30, 2004 at 1.

Acting through counsel, Petitioner timely sought review of the I.G.'s action on February 15, 2005. I convened a prehearing conference on April 18, 2005, pursuant to 42 C.F.R. � 1005.6. Its results and the actions taken during the conference are set out in my Order of April 26, 2005. Since the matter appeared to lend itself to the I.G.'s suggested approach by summary disposition, a schedule for the filing of the I.G.'s motion and the parties' briefs on the merits of that motion was established.

The I.G.'s Motion for Summary Affirmance and a Brief in support of that Motion were filed on May 18, 2005. The I.G. submitted six proposed exhibits as attachments to the Brief (I.G. Exs. 1 - 6). Petitioner's Response was filed on June 15, 2005: that Response articulated objections to proposed I.G. Exs. 2, 3, and 4, and proffered nine proposed exhibits (P. Exs. 1 - 9). The I.G.'s Reply Brief was filed on July 1, 2005, and contained additional argument and authorities, as well as the I.G.'s objections to proposed P. Exs. 2 - 8. The briefing cycle and the record in this case closed on July 21, 2005.

I have considered Petitioner's objections to proposed I.G. Exs. 2, 3, and 4. They are not well-founded and they are overruled: I.G. Exs. 1 - 6 are admitted to the record. I have also considered the I.G.'s objections to proposed P. Exs. 2 - 8. The I.G.'s objections to these exhibits are based on their asserted irrelevancy to the issues before me in this appeal, and while I agree that they are in very large measure not relevant, I will not sustain the objections, in order to insure the broadest possible consideration of Petitioner's position here. P. Exs. 1 - 9 are admitted. I have also determined that this record will be more complete with the inclusion of the I.G.'s letters of December 7, 2001 and December 30, 2004 to Petitioner, which were included with the documents submitted in support of her February 15, 2005 hearing request. I have marked them P. Exs. 10 and 11, respectively, and they are admitted with those designations.

II. 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:

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(b)(1)(B) of the Act; and

2. Whether the two-year length of the period of exclusion is unreasonable.

The controlling authorities require that the first issue be resolved in favor of the I.G.'s position. Section 1128(b)(1)(B) of the Act supports Petitioner's exclusion since her predicate conviction has been established. Summary disposition of this first issue in favor of the I.G.'s position is appropriate, since the I.G. has a basis for the proposed exclusion.

But the second issue presents a vexing problem, and as to it I am unable to agree with the I.G.'s analysis and conclusion. A three-year period of exclusion is the normal mandatory minimum period of exclusion established by section 1128(c)(3)(D) of the Act, 42 U.S.C. � 1320a-7(c)(3)(D), and would therefore have been ipso jure reasonable if imposed. The factor relied on by the I.G. to reduce the period to two years is stated frankly in this record, and the purpose and spirit underlying the reduction may be generous and laudable. Nevertheless, I must reluctantly conclude that the reduction is based on a factor not recognized by statute or regulation, is thus not authorized by statute or regulation, and that the reduction of the period to two years is therefore unreasonable.

I emphasize that I do not here propose to substitute my view for the I.G.'s as to what period might be reasonable based on my own evaluation of listed and proven aggravating or mitigating factors. The I.G.'s view of the weight to be accorded those recognized factors is entitled to substantial deference when those factors are present and form the basis for the I.G.'s determination. Nor have I reached my conclusion based on what might be perceived as a failure of proof as to any such recognized factor asserted by either party: neither the I.G. nor Petitioner has alleged and relied on, but failed to prove, the existence of any factor specified at 42 C.F.R. �� 1001.201(b)(2) and (b)(3). In reducing the period of Petitioner's exclusion to two years, the I.G. has invoked his "inherent discretionary authority" to do so, and in these particular circumstances, I cannot agree that the I.G. possesses such authority.

III. Controlling Statutes and Regulations

Section 1128(b)(1)(B) of the Act, 42 U.S.C. � 1320a-7(b)(1)(B), authorizes the exclusion from participation in Medicare, Medicaid, and all other federal health care programs of any individual or entity convicted under Federal or State law of an offense which occurred after August 21, 1996 ". . . relating to fraud, theft, embezzlement, breach of fiduciary responsibility, or other financial misconduct with respect to any act or omission in a program (other than a health care program) operated by any Federal, State, or local government agency." The terms of section 1128(b)(1)(B) are restated somewhat more broadly in regulatory language at 42 C.F.R. � 1001.201(a)(1).

The Act defines "conviction" as including those circumstances "when a judgment of conviction has been entered against the individual . . . by a . . . Federal . . . court," (section 1128(i)(1) of the Act); "when there has been a finding of guilt against the individual . . . by a . . . Federal . . . court," (section 1128(i)(2) of the Act); or "when a plea of guilty . . . by the individual . . . has been accepted by a . . . Federal . . . court," (section 1128(i)(3) of the Act, 42 U.S.C. �� 1320a-7(i)(1)-(3)). These definitions are repeated at 42 C.F.R. � 1001.2.

An exclusion based in section 1128(b)(1)(B) of the Act is discretionary. If the I.G. determines that a conviction constitutes a valid predicate for the exclusion, he must send notice of his intent to exclude the affected party and must allow that party to respond to the notice of intent with documentary evidence and written argument concerning whether the exclusion is warranted and any related issues. 42 C.F.R. � 1001.2001. If the I.G. remains convinced that exclusion is warranted, he must send written notice of his final decision to exclude to the affected individual or entity, and must in that notice provide information about the appeal rights of the excluded party. 42 C.F.R. � 1001.2002. See also Act, section 1128(c), 42 U.S.C. � 1320a-7(c).

If the I.G. exercises his discretion to proceed with the sanction, then the mandatory minimum period of exclusion to be imposed under section 1128(b)(1)(B) of the Act is three years unless the I.G. "determines in accordance with published regulations that a shorter period is appropriate because of mitigating circumstances or that a longer period is appropriate because of aggravating circumstances." Act, section 1128(c)(3)(D); 42 U.S.C. � 1320a-7(c)(3)(D). The regulatory language of 42 C.F.R. � 1001.201(b)(1) affirms the statutory provision.

The aggravating or mitigating factors upon which the I.G. may justify a departure from the three-year mandatory minimum period of exclusion are limited in number and are carefully defined. Those factors are listed at 42 C.F.R. �� 1001.201(b)(2) and (b)(3). In listing the factors which might mitigate the length of a proposed exclusion, the regulation employs these prefatory words at 42 C.F.R. � 1001.201(b)(3): "Only the following factors may be considered as mitigating and a basis for reducing the period of exclusion . . . ."

IV. Findings and Conclusions

I find and conclude as follows:

1. On January 24, 2001, in the United States District Court for the Middle District of Louisiana, the Petitioner Detra Tate Fairley pleaded guilty to one misdemeanor charge of violating the Employment Retirement Income Security Act, 29 U.S.C. � 1021(d)(1) and 18 U.S.C. � 2. I.G. Exs. 1; 2; 5.

2. On January 24, 2001, Petitioner's guilty plea was accepted by the trial court. I.G. Ex. 5.

3. Judgment of conviction on her guilty plea was entered against Petitioner, and she was sentenced based on that conviction, on June 14, 2001. I.G. Ex. 1.

4. The gravamen of the criminal charge on which Petitioner was convicted was financial misconduct relating to an omission in a program (other than a health care program) operated or financed by a federal government agency. Jackson, DAB No. 1915.

5. The plea, judgment of conviction, and sentence described above each constitutes a criminal "conviction" within the meaning of sections 1128(b)(1)(B) and 1128(i)(1) - (3) of the Act, and 42 C.F.R. � 1001.2.

6. Petitioner was the co-defendant of Paulette White Jackson in the proceedings which led to the criminal conviction described above, and she pleaded guilty to the same offense, based on the same factual basis, and at the same hearing, as her co-defendant Paulette White Jackson. I.G. Exs. 2; 3; 5; 6.

7. The violations and facts reflected in Petitioner's conviction as described above are for all material purposes identical to the violations and facts described and discussed in Jackson, DAB No. 1915. I.G. Exs. 2; 3; 5; 6.

8. On December 7, 2001, relying purportedly on the authority of section 1128(a) of the Act, the I.G. informed Petitioner, pursuant to 42 C.F.R. � 1001.2001, that her exclusion from participation in Medicare, Medicaid, and all other federal health care programs was being considered. P. Ex. 10.

9. On December 30, 2004, the I.G. notified Petitioner that she was to be excluded from participation in Medicare, Medicaid, and all other federal health care programs for a period of two years, based on the authority set out in section 1128(b)(1)(B) of the Act. P. Ex. 11.

10. On February 15, 2005, Petitioner perfected her appeal from the I.G.'s action by filing a timely hearing request.

11. By reason of Petitioner's conviction, a basis exists for the I.G.'s exercise of discretionary authority, pursuant to section 1128(b)(1)(B) of the Act, 42 U.S.C. � 1320a-7(b)(1)(B), to exclude Petitioner from participation in Medicare, Medicaid, and all other federal health care programs.

12. By reason of her conviction, Petitioner was subject to, and the I.G. was authorized to impose, the mandatory minimum three-year period of exclusion from Medicare, Medicaid, and all other federal health care programs, unless the I.G. "determines in accordance with published regulations that a shorter period is appropriate because of mitigating circumstances or that a longer period is appropriate because of aggravating circumstances." Act, section 1128(c)(3)(D).

13. In determining the length of a period of exclusion imposed pursuant to section 1128(c)(3)(D) of the Act, the I.G. is without "inherent discretionary authority" to consider any mitigating circumstances other than those enumerated at 42 C.F.R. �� 1001.201(b)(3)(i), (ii), (iii), and (iv) as a basis for reducing the period of exclusion. Keith Michael Everman, D.C., DAB No. 1880 (2003); Frank A. DeLia, D.O., DAB No. 1620 (1997).

14. None of the mitigating factors set out in 42 C.F.R. �� 1001.201(b)(3)(i), (ii), (iii), or (iv) are present in the record of this case. I.G. Exs. 1 - 6; P. Exs. 1 - 11.

15. The I.G.'s mitigation of Petitioner's exclusion to a period of two years is unsupported by fact and law and is therefore unreasonable. Findings and Conclusions 1 - 14, supra.

16. The exclusion of Petitioner for a period of three years is for the minimum period prescribed by law and is therefore ipso jure not unreasonable. Findings and Conclusions 1 - 14, supra.

17. 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(b)(1)(B) of the Act are: (1) the individual to be excluded must have been convicted of a criminal offense; (2) the criminal offense must have occurred after August 21, 1996; and (3) the conviction must have been for conduct ". . . relating to fraud, theft, embezzlement, breach of fiduciary responsibility, or other financial misconduct with respect to any act or omission in a program (other than a health care program) operated by any Federal, State, or local government agency." Jackson, DAB No. 1915.

There is no genuine issue as to the I.G.'s demonstration of these three essential elements. Petitioner's guilty plea and the trial court's acceptance of that plea appear in ipsissima verba in the proceedings of January 24, 2001. I.G. Ex. 5, at 9, 27. The trial court's acceptance of Petitioner's guilty plea satisfies the criterion for "conviction" at section 1128(i)(3) of the Act. In addition, I.G. Ex. 1 reflects both an adjudication of guilt, in satisfaction of the criterion at section 1128(i)(2) of the Act, and a judgment of conviction, in satisfaction of the terms of section 1128(i)(1) of the Act.

Moreover, in spite of Petitioner's characterization of her conviction as a "non criminal statutory violation" (Petitioner's Response Brief (Br.) at 3) a "non crime" (Petitioner's Response Br. at 9), and "not criminal rather civil" (Petitioner's Sur-Reply Br. at 3), the records of Petitioner's conviction are on their face the records of a criminal proceeding. For example, I.G. Ex. 1 is captioned "JUDGMENT IN A CRIMINAL CASE" and reflects Petitioner's conviction for violating not simply 29 U.S.C. � 1021(d)(1), but also of aiding and abetting the violation of that statute, an act made criminal by 18 U.S.C. � 2, which forbids aiding, abetting, counseling, commanding, inducing, or procuring "an offense against the United States." Other examples of the criminal nature of Petitioner's conviction abound: I.G. Ex. 1 contains multiple references to the terms "guilty," "sentence," "probation," "offense," "criminal monetary penalties," and other terms of art uniquely limited to criminal proceedings. I.G. Ex. 2 is an Information charging a crime in its language, and bears a criminal-case docket number. I.G. Ex. 4 is replete with references to matters and considerations unique to criminal proceedings, including "grand jury proceeding," "Federal Rules of Criminal Procedure," "no additional criminal proceedings," "maximum sentence'" and "imprisonment." The transcript of proceedings on January 24, 2001 is unmistakably that of a criminal proceeding leading to the two co-defendants' guilty pleas. I.G. Ex. 5. Petitioner's argument to the contrary is labored to the point of falling somewhat short of complete candor.

It is particularly labored in light of the Departmental Appeals Board's (Board's) ruling in Jackson, DAB No. 1915. This Petitioner was Paulette White Jackson's co-defendant in the 2001 criminal proceedings, and the record before me is remarkable not only for that reason, but for the additional reason that every material point of law and fact in the Board's Jackson decision, every material criminal charge, every material admission of criminal wrongdoing by the defendants in their pleas, and every material event in open court involved Paulette White Jackson and Petitioner identically. I.G. Exs. 2; 3; 4; 5, at 4 - 9, 19 - 20, 24 - 25; 6; P. Ex. 1, at 5 - 11. The facts of Petitioner's conviction, all of which I find based solely on the record before me in this case, mirror in all material respects those recited by the Board in Jackson. Thus the Board's categorical statement that "[t]he court's acceptance of this (Jackson's) guilty plea constituted a conviction of a criminal offense within the meaning of section 1128(b)(1)(B) of the Act . . . ." Jackson, DAB No. 1915, at 10, answers not only the question of whether Petitioner's conviction was "criminal," but also answers the further questions of whether the criminal conduct occurred after August 1, 1996, and of whether it was based on financial misconduct related to any act or omission in a program (other than a health care program) operated by any Federal, State, or local government agency. Beyond that, it directly refutes Petitioner's argument that her exclusion may not be sustained unless her conviction was based on the specific crime of fraud. Petitioner's Response Br. at 1 - 2. The unique nature of this record, on all material points a virtual copy of that reviewed by the Board in Jackson, requires my finding that all three essential elements have been demonstrated by the parties' exhibits in this case. DAB No. 1915, at 9 - 10. There is a basis for Petitioner's exclusion.

The period of this exclusion is another matter, however. It may be helpful to recall that, because it is imposed on the permissive authority of section 1128(b)(1) of the Act, the length of the period of this permissive exclusion and the factors which may extend or shorten this period are governed by section 1128(c)(3)(D) of the Act, 42 U.S.C. � 1320a-7(c)(3)(D), and by the regulations at 42 C.F.R. �� 1001.201(b)(1), (b)(2), and (b)(3). The statute employs the language "the period of exclusion shall be 3 years, unless the Secretary determines in accordance with published regulations" that the three-year period should be shortened or lengthened. This statutory language differs, at least on its face, from the statutory provisions that establish the periods of mandatory exclusions imposed under section 1128(a) of the Act. For mandatory exclusions imposed under section 1128(a), "the minimum period of exclusion shall be not less than five years. . . ." Act, section 1128(c)(3)(B).

The Board has unvaryingly used the term "mandatory minimum" when describing the five-year period mandated in section 1128(c)(3)(B). That usage began at or near the time the statute and regulations took their present forms, in exclusion cases such as Samuel W. Chang, M.D., DAB No. 1198 (1990); Betsy Chua, M.D., et al., DAB No. 1204 (1990); David S. Muransky, D.C., DAB No. 1227 (1991); and David D. DeFries, D.C., DAB No. 1317 (1992). The usage continued in such decisions as Tanya A. Chuoke, R.N., DAB No. 1721 (2000); Dr. Frank R. Pennington, M.D., DAB No. 1786 (2001); and Susan Malady, R.N., DAB No. 1816 (2002); its present vitality is demonstrated in Dr. Darren James, D.P.M., DAB No. 1828 (2002); Arthur C. Haspel, D.P.M., DAB No. 1929 (2004); and Erik D. DeSimone, R. Ph., DAB No. 1932 (2004).

In apparent distinction from the words "mandatory minimum," the Board has until recently used a very different word to describe the period of exclusion authorized by sections 1128(b)(1) and 1128(c)(3)(D) of the Act. That word has been "benchmark." The three-year period was so described by the Board in Barry D. Garfinkel, M.D., DAB No. 1572 (1996); DeLia, DAB No. 1620; and Everman, DAB No. 1880. The administrative law judge (ALJ) who reviewed the I.G.'s proposed exclusion of Paulette White Jackson employed that word as well in writing Paulette White Jackson, DAB CR1103 (2003). Until it considered the appeal of that decision, the Board had never used any word other than "benchmark" to describe the three-year period.

The word "benchmark" does not appear in the Board's Jackson decision. What does appear in that decision's Footnote 2 is this sentence: "The mandatory minimum period of exclusion under section 1128(b)(1) of the Act is three years." Jackson, DAB No. 1915, at 12. The difference between "benchmark" and "mandatory minimum" may fade in the abstract, but in the factual matrix of this case it is crucial, for the Board's choice of the term "mandatory minimum period" suggests that I must treat the three-year period as mandated, presumptively obligatory, and entitled to the same presumption of ipso jure reasonableness as the five-year period is when invoked via section 1128(a). Based on the Board's choice of that language, I have employed the same term in this decision, and have been instructed by the Board's adoption of the term as I evaluate the two-year period of exclusion proposed by the I.G. here. In evaluating the implications of the Board's choice of language, I have been guided by Board holdings that an ALJ may properly turn to the existing regulations governing mandatory exclusions for general guidance in permissive exclusion cases. Joel Davids, DAB No. 1283 (1991); Joyce Faye Hughey, DAB No. 1221 (1991); Vincent Baratta, M.D., DAB No. 1172 (1990).

As I have noted above, the I.G.'s discretion in weighing the importance of mitigating and aggravating factors in exclusion cases commands great deference when it is reviewed by ALJs. The wellspring of the doctrine of deference is historical and derives from the belief of the regulations' authors that the I.G.'s "vast experience in implementing exclusions . . ." 57 Fed. Reg. 3298 - 3321 (January 29, 1992). The doctrine has evolved as a concept central to exclusion cases in such Board decisions as Garfinkel, DAB No. 1572, and DeLia, DAB No. 1620, to which I have referred above. With the Board's decisions in JoAnn Fletcher Cash, DAB No. 1725 (2000), Everman, DAB No. 1880, and Jeremy Robinson, DAB No. 1905 (2004), this doctrine of deference to the I.G.'s assessment of aggravating and mitigating factors took its present form.

Stated in its essentials, that doctrine teaches that the ALJ must not substitute her or his own view of what period might appear to be "best" in any given case for the view of the I.G. on the same evidence. No matter which of the recognized aggravating or mitigating factors may have been established by the evidence, in assessing the period of exclusion the ALJ must go no further than the question of reasonableness, and the ALJ's review must reflect the deference accorded to the I.G. by the Secretary's regulation. So long as the length of the exclusion is within a reasonable range and is based on the same listed factors pleaded by the I.G.--demonstrated and proved as pleaded, and without proof of additional listed factors and without failure of proof as to the listed factors relied on by the I.G.--the ALJ must not alter it.

The function of the factors listed at 42 C.F.R. �� 1001.201(b)(2) and (b)(3) has led to their apt comparison with rules of evidence: they establish which factors may be considered in deciding whether an exclusion is reasonable, but do not impose a rigid formula of weight or persuasiveness to be afforded any specific item of that evidence. Robinson, DAB No. 1905, at 4; Everman, DAB No. 1880, at 7, and cases cited therein. The weight to be given any particular listed factor when it has been proven is determined by the factual matrix of the record as a whole: the circumstances of each case "drive the weight that a decision maker can give the aggravating and mitigating factors." Robinson, DAB No. 1905, at 4. As to all but one of the listed potential mitigating and aggravating factors to be evaluated by the decision maker, each factor is to be assayed according to what it reveals about a petitioner's trustworthiness. Everman, DAB No. 1880, at 7. The mitigating factor described in 42 C.F.R. � 1001.201(b)(3)(iv) requires a different analysis and is not relevant here.

But deference to the I.G.'s acknowledged "vast experience" in weighing the recognized and identified factors set out at 42 C.F.R. � 1001.201(b)(2) and (b)(3) does not alter the strict limits on what factors the I.G. may consider in the first place. The regulation itself is unequivocal: "[a]n exclusion imposed in accordance with this section will be for a period of 3 years, unless aggravating or mitigating factors listed in paragraphs (b)(2) and (b)(3) of this section form a basis for lengthening or shortening that period." 42 C.F.R. � 1001.301(b)(1). It is also minatory, and it admonishes that: "[o]nly the following factors may be considered as mitigating and a basis for reducing the period of exclusion--." 42 C.F.R. � 1001.201(b)(3). The Board has rejected an ALJ's efforts to assess a petitioner's trustworthiness based on factors not specified in the regulations (DeLia, DAB No. 1620), and has rebuffed arguments that would "serve to expand the limited list of possible mitigating factors set out in the regulations . . . ." Everman, DAB No. 1880, at 6.

In DeLia, the limitations on factors to be considered in mitigation of the three-year period arose when the ALJ found that the petitioner had not recently engaged in criminal conduct and relied on that fact to mitigate the period of exclusion proposed by the I.G. The Board wrote:

The I.G. also alleged that the ALJ in his decision improperly considered a mitigating factor that is not specified in 42 C.F.R. � 1001.202(b)(3), the length of time that elapsed since Petitioner's last criminal act. The ALJ had noted that the record indicated that Petitioner had not engaged in any criminal activity since 1991, which, according to the ALJ, diluted Petitioner's untrustworthiness. The I.G. argued that the ALJ's conclusion on this issue was legally erroneous.

We agree with the I.G. The regulations at 42 C.F.R. � 1001 do not provide any basis for deciding at what point prior criminal conduct becomes remote, making the individual therefore less culpable. The period of time that may elapse from an individual's last instance of criminal conduct to an I.G. decision to impose an exclusion can be attributable to any number of factors, the length and complexity of an investigation, for example. Similarly, the reasons why an individual decides to refrain from further criminal conduct could be myriad and impossible to ever ascertain accurately. The applicable regulations do not provide for credit to an individual for not engaging in criminal acts for some length of time. Therefore, the ALJ's finding that the criminal conduct here was "remote" was not supported by substantial evidence. The ALJ should not have used this as a factor in the evaluating the reasonableness of the I.G.'s proposed exclusion.

DeLia, DAB No. 1620, at 10.

The Board's Everman decision reflects an even more probing evaluation of the eligibility of certain factors to be considered in mitigation. The question before the ALJ and the Board in that case was whether a petitioner's claimed good standing in his profession and community, or his claimed rehabilitation, might properly be considered as mitigating factors. The ALJ in Keith Michael Everman, D.C., DAB CR948 (2002), said they might not. The Board agreed, but carefully drew a conceptual distinction between factors not listed in the regulation and offered purely qua independent mitigators or aggravators, and factors which, although not listed in the regulations, might be connected with listed factors so as to illuminate or explain the listed factor. The Board's language is as precise as it is instructive:

Facts that do not constitute mitigating facts are potentially relevant if, but only if, they are connected with a listed mitigating or aggravating factor in a manner bearing on the appropriate weight to be given that factor.

It is evident from a careful reading of the ALJ decision as a whole that she did not refuse to consider evidence of relevant facts that related to the mitigating factor (set out in the regulation at 42 C.F.R. � 1001.201(b)(3)(i)), as Everman implied. Instead, she properly restricted her consideration to the single mitigating factor, rejecting Everman's attempts to cast other matters not listed in the regulation as independently mitigating.

Everman, DAB No. 1880, at 7 - 8.

The I.G.'s position on the reason for the mitigation of the exclusion period has been consistent and it has been candid. Both in P. Ex. 11 and in his briefing, the I.G. eschews reliance on any of the factors listed at 42 C.F.R. � 1001.201(b)(3), and instead asserts the "inherent discretionary authority . . . to reduce the period of exclusion based on a consideration of all the surrounding circumstances because this is a permissive exclusion. Here, the I.G. shortened the period of exclusion to two years in recognition of the length of time it took to implement Petitioner's exclusion." I.G. Br. at 11 - 12. It is not impossible that the I.G.'s determination to ameliorate the three-year period was influenced by the concerns expressed in Stephen Michael Cook, M.D., DAB CR1234 (2004), but however benignant, enlightened, and well-meant that determination may have been, I can find no support for the theory on which the I.G. explains and justifies it.

First, it must be remembered that the listed mitigating and aggravating factors are, with one irrelevant exception, all indicia of a petitioner's trustworthiness, and that the length of time from Petitioner's conviction to the beginning of exclusion proceedings against her has nothing to teach the I.G. about her trustworthiness. That is the Board's explicit DeLia holding.

Next, the period of delay cannot be understood as "connected with a listed mitigating or aggravating factor" so as to be entitled to the I.G.'s consideration as "bearing on the appropriate weight" to be given such a listed factor. The period of delay exhibits interesting features--some of which I shall address presently--but none of them are "connected with a listed mitigating" factor. The delay has no bearing on whether Petitioner's conviction involved three or fewer misdemeanors and a loss of less than $1,500, as required to invoke the mitigator at 42 C.F.R. � 1001.201(b)(3)(i). The delay can shed no light on the possibility of some mental, emotional, or physical condition having been found present and operating to diminish her culpability, as required to invoke the mitigator at 42 C.F.R. � 1001.201(b)(3)(ii). The delay could only by the most remote speculation be "connected with" the mitigator at 42 C.F.R. � 1001.201(b)(3)(iii), and there is neither claim nor hint in this record to instigate speculation that Petitioner successfully offered material "cooperation with Federal or State officials . . ." in other investigations. As has been noted elsewhere, the mitigator listed at 42 C.F.R. � 1001.201(b)(3)(iv) is irrelevant in this context.

Finally, the I.G. simply cannot use the fact that the exclusion determination itself rests in his discretionary authority as a justification for blinking when the word "only" appears in the lines "[o]nly the following factors may be considered as mitigating and a basis for reducing the period . . . ." 42 C.F.R. � 1001.201(b)(3). The I.G.'s basic decision to exclude may very well be discretionary, and it is perfectly-well-understood to be not subject to review here. 42 C.F.R. � 1005.4(c)(5); Everman, DAB No. 1880; Tracey Gates, R.N., DAB No. 1768 (2001); Wayne E. Imber, M.D., DAB No. 1740 (2000); see also Frederick Nahas, M.D., DAB CR1180 (2004). But unless the I.G. is prepared to argue that his adherence to all the other substantive and procedural provisions that attend a discretionary exclusion based on section 1128(b) of the Act is also discretionary and not subject to review, he may have difficulty in pointing out which of those provisions are subject to modification by his newly-proclaimed "inherent discretion" and which are not. The I.G. has made no attempt to do so here, and has not illustrated or supported his claim to that specific component of his "inherent discretion" with citation of statutory, regulatory, or precedential authority. I have discovered no such authorities, and must therefore conclude that the I.G.'s claim to that specific element of "inherent discretion" is unsupported by law.

A brief review of the delay itself provides an interesting perspective on the I.G.'s position. It will be recalled that the Jackson case and this one share a fundamental starting date: the predicate judgments of conviction were entered against both Jackson and Petitioner on June 14, 2001. From that moment on, the Jackson case and this one have unfolded at different speeds toward very different consequences.

The Board and ALJ decisions in Jackson, DAB No. 1915, and Jackson, DAB CR1103, show that the I.G.'s exclusion proceeding against Jackson was announced 15 months after the convictions, on September 30, 2002, and was based on the permissive provisions of section 1128(b)(1) of the Act. The exclusion period originally proposed by the I.G. was six years, but that period was reduced to four years by the Board and ALJ decisions. The effective end of Jackson's exclusion will therefore be mid-October, 2006. 42 C.F.R. � 1001.2002(b).

In this case, the I.G. gave notice on December 7, 2001 of her intent to use the mandatory provisions of section 1128(a) of the Act to exclude Petitioner for five years. P. Ex. 10. This announcement was made 18 months after Petitioner's conviction, but it was not followed promptly by final exclusion under section 1128(a) or section 1128(b). That step did not occur until December 30, 2004, 42 months after the conviction and eight months after the Board's decision in Jackson. P. Ex 11. When it came, it was based on section 1128(b) of the Act, and because it proposed a two-year period, the effective end of the proposed two-year period would have been mid-January, 2007. The three-year mandatory minimum period, if the I.G. had determined to impose it on December 30, 2004 would have extended until mid-January 2008. If the I.G. had proceeded against Petitioner at approximately the same time his predecessor acted against Paulette White Jackson and had imposed the mandatory minimum three-year exclusion, that exclusion would be nearing its end in mid-October 2005.

Now, it is beyond present argument that just as the I.G. exercises unreviewable discretion in determining whether to impose the exclusion sanction under section 1128(b) of the Act, he also exercises unreviewable discretion in determining when to impose the sanction. There is no extant mechanism by which the Board or an ALJ can review the length of time it takes the I.G. to begin the exclusion process, even though significant consequences may flow from delays. Thomas Edward Musial, DAB No. 1991 (2005); Samuel W. Chang, M.D., DAB No. 1198 (1990); David S. Muransky, D.C., DAB No. 1227 (1991); Richard G. Philips, D.P.M., DAB No. 1279 (1991); David D. DeFries, D.C., DAB No. 1317 (1992); Chander Kachoria, R.Ph., DAB No. 1380 (1993); see also Cook, DAB CR1234.

In this case there is no mechanism by which the Board or I can look into the reasons for the lacunae between June 14, 2001, December 7, 2001, and December 30, 2004. The I.G.'s letter of December 7, 2001 purported to rely on a statutory provision of doubtful application to the facts of this case; the I.G.'s letter of December 30, 2004 was written after the Board's April 12, 2004 Jackson decision and after my October 19, 2004 decision in Cook. Whether the I.G.'s change in the statutory basis of this action accounts for the delay, and whether Jackson or Cook had any effect on the I.G.'s actions in this case, are questions explicitly beyond the reach of this discussion. The result, however, of the I.G.'s inaction until December 30, 2004 is obvious. The delay has created an anomaly: the I.G.'s effort to ameliorate the mandatory minimum period of exclusion because of his delay in beginning this action is not sustainable by statute and regulation, and is therefore unreasonable. I hold here that he must impose the mandatory minimum period of three years, which will end in mid-January 2008. Because that period is the minimum provided by statute and regulation, as a matter of law it is not unreasonable.

Neither party to this litigation seeks that result: the I.G. commendably wishes to make up for his delay and exclude Petitioner only until mid-January 2007, and Petitioner obdurately denies that she is subject to any exclusion at all. It falls to me to proffer the bitter cup to both parties, and I would greatly prefer simply to spill it. Nevertheless, the I.G.'s discretionary authority to determine whether to exclude under section 1128(b) of the Act, his discretionary authority to decide when to begin the exclusion process, and his discretionary authority to weigh the mitigating and aggravating circumstances "in accordance with published regulations" do not create--and do not imply the creation of--an inherent discretionary authority to consider mitigating factors other than those listed by statute and regulation. I am obliged to set the period of Petitioner's exclusion at three years.

VI. Conclusion

For the reasons set out above, the I.G.'s exclusion of Petitioner Detra Tate Fairley from participation in Medicare, Medicaid, and all other federal health care programs should be, and it is, SUSTAINED, pursuant to the terms of section 1128(b)(1) of the Act, 42 U.S.C. � 1320a-7(b)(1). The period of that exclusion must be, and it is, set at three years, pursuant to the terms of section 1128(c)(3)(D) of the Act, 42 U.S.C. � 1320a-7(c)(3)(D).

Richard J. Smith

Administrative Law Judge