SUBJECT:

Mark D. Perrault, M.D.,

Petitioner,

The Inspector General.

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, Mark D. Perrault, M.D., from participation in Medicare, Medicaid, and all other federal health care programs for a period of five years. The I.G.'s Motion and determination to exclude Petitioner are based on the terms of section 1128(a)(1) of the Social Security Act (Act), 42 U.S.C. � 1320a-7(a)(1). The facts in this case require the imposition of a five-year exclusion, and for that reason I grant the I.G.'s Motion for Summary Affirmance.

I. Procedural Background

Mark D. Perrault, M.D., Petitioner, was first licensed to practice medicine in the State of California in 1987. During the summer of 2004 he was identified as one of several defendants in a scheme to defraud the State of California and Medi-Cal, its Medicaid program. A First Amended Felony Complaint in 41 counts, filed in the Superior Court of California, County of Sacramento on July 27, 2004, named Petitioner as a co-defendant and charged him with one count of violating CAL. PENAL CODE � 182(a)(1), criminal conspiracy, one count of violating CAL. PENAL CODE � 487(a), grand theft, and 15 counts of violating CAL. WELF. & INST. CODE � 14107, presenting false claims for payment by Medi-Cal with intent to defraud the program. Those charges were all felonies.

The precise sequence of events that followed is not clear on this record, but it is certain that in early March 2005, Petitioner reached a negotiated agreement with prosecutors to tender a plea to a misdemeanor. A plea agreement was signed by Petitioner and prosecutors on March 9, 2005, and filed March 11, 2005. A Second Amended Felony Complaint was filed on March 11, 2005. To it a new Count 42 had been added, and that Count charged Petitioner and three other co-defendants with the misdemeanor violation of CAL. PENAL CODE � 32, by facilitating others in presenting false claims to Medi-Cal, the California Medicaid program, and receiving "financial remuneration as a result thereof."

Petitioner appeared with counsel in the Superior Court of California, County of Sacramento, on or about March 9, 2005, and pleaded nolo contendere to Count 42 of the Second Amended Felony Complaint. The court proceeded to sentencing immediately: Petitioner was sentenced to a three-year term of unsupervised probation; was ordered to pay restitution and investigative costs of $30,000; to pay other minor fees; and to perform 40 hours of community service. The remaining charges outstanding against Petitioner were dismissed.

In early August 2005, Petitioner sought early termination of his probation pursuant to CAL. PENAL CODE � 1203.3 (2005) and additional relief under CAL. PENAL CODE � 1203.4 (2005), California's statutory plan that allows some defendants to gain expunction of their conviction records and relief from some of the penalties and disabilities otherwise imposed by California law. The prosecution did not oppose Petitioner's request. On August 9, 2005, the Superior Court set aside Petitioner's plea of nolo contendere and its finding of guilt based on that plea, entered a plea of not guilty in their place, and dismissed the charge.

As required by the terms of section 1128(a) of the Act, 42 U.S.C. � 1320a-7(a), the I.G. began the process of excluding Petitioner from participation in Medicare, Medicaid, and all other federal health care programs. Section 1128(a)(1) of the Act mandates the exclusion, for a period of not less than five years, of "[a]ny individual or entity that has been convicted of a criminal offense related to the delivery of an item or service under . . . any State health care program." On September 30, 2005, the I.G. notified Petitioner that he was to be excluded pursuant to the terms of section 1128(a)(1) of the Act for the mandatory minimum period of five years.

Acting through counsel, Petitioner timely sought review of the I.G.'s action by letter dated November 21, 2005. I convened a prehearing conference, by telephone, on January 19, 2006, pursuant to 42 C.F.R. � 1005.6. The I.G. expressed the intention to seek summary disposition on written submissions, and I established a schedule for the filing of documents and briefs. All briefing is now complete. The record in this case closed on June 27, 2006.

The evidentiary record on which I decide the issues before me contains nine exhibits. The I.G. proffered eight exhibits marked I.G. Exhibits 1-8 (I.G. Exs. 1-8). Petitioner proffered one exhibit, Petitioner's Exhibit 1 (P. Ex. 1). Neither party has objected to any of those exhibits, and they are all admitted as designated.

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(a)(1) of the Act; and

2. Whether the proposed five-year period of exclusion is unreasonable.

The controlling authorities require that both issues be resolved in favor of the I.G.'s position. Section 1128(a)(1) of the Act mandates Petitioner's exclusion, for his predicate conviction has been established. A five-year period of exclusion is reasonable as a matter of law, since it is the minimum period established by section 1128(c)(3)(B) of the Act, 42 U.S.C. � 1320a-7(c)(3)(B).

III. Controlling Statutes and Regulations

Section 1128(a)(1) of the Act, 42 U.S.C. � 1320a-7(a)(1), requires the mandatory exclusion from participation in Medicare, Medicaid, and all other federal health care programs of any "individual or entity that has been convicted of a criminal offense related to the delivery of an item or service under Title XVIII or under any State health care program." The terms of section 1128(a)(1) are restated in regulatory language at 42 C.F.R. � 1001.101(a). This statutory provision makes no distinction between felony convictions and misdemeanor convictions as predicates for mandatory exclusion.

The Act defines "convicted" as including, among others, those circumstances:

(1) when a judgment of conviction has been entered against the individual . . . by a . . . State . . . court, regardless of 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 . . . by a . . . State . . . court; (or)

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

Act, section 1128(i)(1)-(4), 42 U.S.C. �� 1320a-7(i)(1)-(4). These definitions are repeated at 42 C.F.R. � 1001.2.

An exclusion based in section 1128(a)(1) is mandatory and the I.G. must impose it for a minimum period 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. The I.G. has not sought to enhance the five-year mandatory minimum period by offering to prove any of the carefully-defined aggravating factors set out at 42 C.F.R. �1001.102(b). For that reason, I may not inquire into the existence, importance, or effect of any of the specific aggravating or mitigating factors set out at 42 C.F.R. � 1001.102(b) and (c).

In this case, 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).

IV. Findings and Conclusions

I find and conclude as follows:

1. On his plea of nolo contendere on March 9, 2005, in the Superior Court of California, County of Sacramento, Petitioner Mark D. Perrault, M.D., was found guilty of the misdemeanor offense of facilitating others in presenting false claims to the Medi-Cal program, in violation of CAL. PENAL CODE �32. I.G. Exs. 4, 5, 6.

2. Judgment of conviction was entered against Petitioner in the Superior Court, and sentence was imposed upon him, on March 9, 2005. I.G. Exs. 5, 6.

3. The plea, finding of guilt, and judgment of conviction described above in Findings 1 and 2 constitute a "conviction" within the meaning of sections 1128(a)(1) and 1128(i)(1), (2), and (3) of the Act, and 42 C.F.R. � 1001.2.

4. For purposes of the exclusion remedy mandated by section 1128(a) of the Act, 42 U.S.C. � 1320a-7(a), a "conviction" established pursuant to any of the definitions set out at sections 1128(i)(1), (2), and (3) of the Act is unaffected by its subsequent expunction pursuant to the terms of CAL. PENAL CODE � 1203.4.

5. A nexus and a common-sense connection exist between the criminal offense to which Petitioner pleaded guilty, of which Petitioner was found guilty, and of which he was convicted, as noted above in Findings 1 and 2, and the delivery of an item or service under a State health care program. I.G. Exs. 2, 3, 4, 5; Berton Siegel, D.O., DAB No. 1467 (1994).

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

7. By reason of his conviction, Petitioner was subject to, and the I.G. was required to impose, the mandatory minimum five-year period of exclusion from Medicare, Medicaid, and all other federal health care programs. Section 1128(c)(3)(B) of the Act; 42 C.F.R. �1001.102(a).

8. On September 30, 2005, 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)(1) of the Act.

9. On June 27, 2005, Petitioner perfected his appeal from the I.G.'s action by filing a timely hearing request.

10. Because the five-year period of Petitioner's exclusion is the mandatory minimum period provided by law, it is therefore not unreasonable. Section 1128(c)(3)(B) of the Act; 42 C.F.R. ��1001.102(a) and 1001.2007(a)(2).

11. There are no disputed issues of material fact and summary disposition is therefore appropriate in this matter. Tanya A. Chuoke, R.N., DAB No. 1721 (2000); Thelma Walley, DAB No. 1367 (1992); 42 C.F.R. � 1005.4(b)(12).

V. Discussion

The essential elements necessary to support an exclusion based on section 1128(a)(1) of the Act are: (1) the individual to be excluded must have been convicted of a criminal offense; and (2) the criminal offense must have been related to the delivery of an item or service under Title XVIII of the Act (Medicare) or any state health care program. Thelma Walley, DAB No. 1367; Boris Lipovsky, M.D., DAB No. 1363 (1992); Lyle Kai, R.Ph., DAB CR1262 (2004) rev'd on other grounds, DAB No. 1979 (2005). Those two essential elements are fully established in the record before me.

Petitioner admits all of the material procedural events in the criminal proceedings against him. P. Br., at 2-5; P. Ex. 1. The underlying facts of those material procedural events are clear and uncontested: I.G. Exs. 3, 4, 5, and 6 show that on March 9, 2005, Petitioner appeared in the Superior Court of California, County of Sacramento, with counsel. The appearance was the result of plea negotiations in connection with a 41-count Complaint filed against Petitioner eight-and-a-half months earlier. I.G. Exs. 2, 3. As part of the plea negotiation, a Second Amended Felony Complaint was filed with an added forty-second count. Count 42 charged Petitioner with violation of CAL. PENAL CODE � 32, a misdemeanor charge explicitly based on Petitioner's facilitating the presentation of false claims to Medi-Cal. I.G. Ex. 4, at 17. Petitioner tendered a plea of nolo contendere to Count 42; the trial court found that a factual basis existed for the plea, approved the plea, accepted the plea, and found Petitioner guilty. I.G. Exs. 5, 6. Final judgment of conviction was entered against Petitioner and sentence was imposed upon him at the same hearing in the Superior Court. I.G. Ex. 5, at 2. Those events satisfy the definitions of "conviction" set out at sections 1128(i)(1), 1128(i)(2), and 1128(i)(3) of the Act. The I.G. has proven the first essential element.

Petitioner does not contest the substance of the second element, the relation of the offense to which he pleaded nolo contendere to the delivery of an item or service under the state health care program, Medi-Cal. P. Br, at 2-4. In any case, Count 42 could not be plainer in charging that "Mark Perrault (and others) facilitated others in presenting false claims to the Medi-Cal program and received financial remuneration as a result thereof . . . ." I.G. Ex. 4, at 17, lines 22-24. The submission of false billings to the Medicare and Medicaid programs has been consistently held to be a program-related crime within the reach of section 1128(a)(1). Jack W. Greene, DAB No. 1078 (1989), aff'd sub nom. Greene v. Sullivan, 731 F. Supp. 835 (E.D. Tenn. 1990); Kennard C. Kobrin, DAB CR1213 (2004); Norman Imperial, DAB CR833 (2001); Egbert Aung Kyang Tan, M.D., DAB CR798 (2001); Mark Zweig, M.D., DAB CR563 (1999); Alan J. Chernick, D.D.S., DAB CR434 (1996). I find that the language of Count 42, read in the context of the plea agreement and the First and Second Amended Felony Complaints, demonstrates the requisite nexus and common-sense connection between the criminal act and the program. Berton Siegel, D.O., DAB No. 1467. I also believe that Petitioner's conviction for violating CAL. PENAL CODE � 32 in the particular fashion charged is a program-related crime as a matter of law. The I.G. has proved the second essential element.

Petitioner's principal reliance here is on the effect of CAL. PENAL CODE � 1203.4, by which his conviction was expunged on August 9, 2005. I.G. Ex. 7. In his own words, his position is this: "the alleged 'conviction' does not give rise to an exclusion because of the absence of a judgment upon which a conviction may be entered." P. Br., at 2. He maintains that the effect of that expunction, and the policy behind California's statutory plan, bar the application of the definition of "conviction" set out in section 1128(i)(1) of the Act. P. Br., at 5-6. He asks that I "[a]nalyze the reasonableness of the I.G.'s exclusion in light of the absence of any judgment or conviction in Petitioner's record, and enter a decision that exclusion is unreasonable under these special circumstances." P. Br., at 2.

This forum has never denied that such dispositions might well represent rational state criminal justice policy, but the operation of such a policy in California's criminal courts does not protect Petitioner here. Three of the federal statutory definitions squarely apply. Petitioner's guilty plea was accepted, satisfying the definition at section 1128(i)(3) of the Act. I.G. Ex. 5. The court found Petitioner guilty upon his plea, satisfying the definition at section 1128(i)(2) of the Act. A judgment of conviction was entered against Petitioner and later expunged, thus satisfying the definition at section 1128(i)(1) of the Act. I.G. Exs. 5, 7.

For purposes of this federal exclusion sanction, based on federal policy choices, created and authorized by federal statute and intended to protect federally-funded health programs, federal law defines "conviction." Travers v. Shalala, 20 F.3d 993 (9th Cir. 1994); Carolyn Westin, DAB No. 1381 (1993), aff'd sub nom. Westin v. Shalala, 845 F. Supp. 1446 (D. Kan. 1994); Theresa A. Bass, DAB CR1397 (2006); Gerald David Austin, DAB CR1207 (2004). The Departmental Appeals Board (Board) has very recently revisited the broad question of state definitions of "conviction" in the context of section 1128(i) of the Act, and has reaffirmed in comprehensive language the fundamental principle that the Act's definitions apply in these circumstances. Marc Schneider, D.M.D., DAB No. 2007 (2005).

As I recently pointed out in Amable de los Reyes Aguiluz, DAB CR1417 (2006), the Ninth Circuit has repeatedly held that California convictions expunged pursuant to CAL. PENAL CODE � 1203.4 remain cognizable as bases for actions under federal statutes and regulations. Cedano-Viera v. Ashcroft, 324 F.3d 1062 (9th Cir. 2003); Ramirez-Castro v. INS, 287 F.3d 1172 (9th Cir. 2002); Murillo-Espinoza v. INS, 261 F.3d 771 (9th Cir. 2001); Lujan-Armendariz v. INS, 222 F.3d 728 (9th Cir. 2000); Carr v. INS, 86 F.3d 949 (9th Cir. 1996). In United States v. Hayden, 255 F.3d 768 (9th Cir. 2001), that Circuit identified many situations in which California courts and administrative bodies have likewise treated such convictions as cognizable for special purposes comparable to the one at issue here. There seems to be general recognition in the federal courts that while states may treat expunged state convictions as their own states' policy choices require, the implications of those convictions for federal purposes will be assessed by federal legal standards. The ALJ's decision in Marc Schneider, D.M.D., DAB CR1423 (2005) cited particularly clear and economical language from a United States District Court on the point:

The goals sought to be obtained under the Act reveal a purpose to preclude state authority in regulating the administration of any federal health care programs. Congress left no room for the States to supplement this law. Therefore this Court must turn to the Social Security Act's construction for interpretive guidance.

Tore v. Department of Health and Human Services, CA No. 3:03-CV-7205 (W. D. Ohio 2005).

Petitioner's argument based on CAL. PENAL CODE � 1203.4 is unavailing: for purposes of the exclusion remedy mandated by section 1128(a) of the Act, 42 U.S.C. � 1320a-7(a), a "conviction" established pursuant to any of the definitions set out at sections 1128(i)(1), (2), and (3) of the Act is unaffected by its subsequent expunction pursuant to the terms of CAL. PENAL CODE � 1203.4.

Petitioner attempts to avoid the mandatory effect of section 1128(a)(1) by arguing that "the I.G. fails to recognize 42 CFR � 1001.201 which states that the I.G. may exclude a provider from federal health care programs." P. Br., at 7 (emphasis in original). What Petitioner fails to recognize is that 42 C.F.R. � 1001.102 is based on section 1128(b) of the Act, 42 U.S.C. � 1320a-7(b). Section 1128(b) provides for permissive, rather than mandatory, exclusions, and is generally regarded as appropriate to situations in which individuals or entities may present less-serious threats to the integrity of the protected programs. But once a conviction is shown to be within the ambit of section 1128(a)(1), the mandatory operation of that section bars any petitioner, including this one, from claiming that other more lenient, more discretionary, or more favorable exclusionary provisions should be applied instead. Even in situations where the underlying conviction could plausibly be argued to fall within both section 1128(a)(1) and one or more of the permissive exclusions or three-year mandatory minimum periods of section 1128(b)(1)-(15), the rule is clear: if section 1128(a)(1) fits, then the mandatory exclusion and mandatory minimum period prescribed by section 1128(a)(1) must be imposed. Neither the I.G. nor the ALJ may choose to proceed otherwise. Stacy Ann Battle, D.D.S., et al., DAB No. 1843 (2002); Tarvinder Singh, D.D.S., DAB No. 1752 (2000); Lorna Fay Gardner, DAB No. 1733 (2000); Douglas Schram, R.Ph., DAB No. 1372 (1992); Niranjana B. Parikh, M.D., et al., DAB No. 1334 (1992); David S. Muransky, D.C., DAB No. 1227 (1991); Leon Brown, M.D., DAB No. 1208 (1990); Napoleon S. Maminta, M.D., DAB No. 1135 (1990); Charles W. Wheeler, et al., DAB No. 1123 (1990); Jack W. Greene, DAB No. 1078 , aff'd sub nom. Greene v. Sullivan, 731 F.Supp. 835.

Petitioner's further argument against exclusion seeks, in one way or another, to alter the facts of his crime and conviction. He asserts that he was himself "defrauded" and "duped" by his co-defendants who "abused his trust." P. Br., at 7. He protests his innocence in his own Declaration (P. Ex. 1, at 1, paragraph 6), and offers "the lack of intentional acts by the Petitioner" as an element cancelling the very certain fact of his plea and conviction. P. Br., at 6. This, however, is not the place for such arguments: any form of collateral attack on predicate convictions in exclusion proceedings is barred by regulation at 42 C.F.R. � 1001.2007(d), and that preclusion has been affirmed repeatedly by the Board. Susan Malady, R.N., DAB No. 1816 (2002); Dr. Frank R. Pennington, M.D., DAB No. 1786 (2001); Joann Fletcher Cash, DAB No. 1725 (2000); Paul R. Scollo, D.P.M., DAB No. 1498 (1994); Chander Kachoria, R.Ph., DAB No. 1380 (1993). Petitioner's conviction stands, and as I have explained above, it satisfies both essential elements necessary to a mandatory exclusion.

Petitioner characterizes these proceedings as imposing "injustice and harsh punishment." P. Br., at 6. This forum and the Board have characterized the exclusion remedy rather differently. The exclusion remedy is remedial, not punitive. Susan Malady, R.N., DAB No. 1816; Narendra M. Patel, M.D., DAB No. 1736 (2000); Thomas A, Oswald, R.Ph., DAB CR1216 (2004). The effect of the remedy, which Petitioner describes as an "injustice," is in need of no justification beyond the language used by the Board in Joann Fletcher Cash, DAB No. 1725:

Section 1128 seeks to protect the funds of Federal health care programs and the programs' beneficiaries and recipients from untrustworthy providers. If a provider has been convicted of a criminal offense related to the delivery of an item or service under Medicare or Medicaid, that provider is presumed by Congress to be untrustworthy and a threat to federal health programs and their beneficiaries and recipients.

The Board's language in Cash also answers Petitioner's complaint that "[i]mposition of such a sanction is unwarranted and does not serve the public interest in any meaningful manner; and, in fact, the I.G.'s proposed exclusion of Dr. Perrault's participation in the Medicare program unjustifiably eliminates a qualified physician from rendering services to the very population for which the program was historically created." P. Br, at 5. As the Board explained, it is precisely the protection of that program and that population from untrustworthy physicians that justifies the existence and the imposition of the exclusion remedy. And the protection of that program and others like it is not to be frustrated by Petitioner's plea that his exclusion from them will leave him "[f]urther handicapped and his medical practice virtually eliminated." P. Br., at 6. Such consequences do not in any way invalidate or modify the exclusion, and they offer no good reason whatsoever for suspending its imposition. ⁽¹⁾ George E. Smith, M.D., M.Ed., DAB CR885 (2002); Tracey Gates, R.N., DAB CR708 (2000); Farhad Mohebban, M.D., DAB CR686 (2000); Paul W. Wilson, D.O., DAB CR628 (1999); Arlene Elizabeth Hunter, R.N., DAB CR505 (1997).

Petitioner claims entitlement to mitigation of the period of exclusion because of his cooperation in the prosecution of his co-defendants. P. Br., at 8, lines 1-6, 25-26; P. Ex. 1, at 2, lines 2-6. Beyond his own Declaration, Petitioner offers no evidence of this cooperation, its scope, or most notably its result, and as a result his claim falls short of the requirements listed at 42 C.F.R. � 1001.102(c)(3). But that is not the fundamental flaw in Petitioner's claim in mitigation. Unless the I.G. proposes to enhance the period of exclusion beyond the mandatory minimum period, I may not consider mitigating factors of any sort in assessing the reasonableness of the five-year period. 42 C.F.R. �1001.102(c). Salmon Daniels, DAB CR1380 (2005); Emma Voloshin, M.D., DAB CR1179 (2004); Diane C. Turner, M.D., DAB CR1176 (2004); Carl Jeffrey Boyette, DAB CR1165 (2004); Karl Eric Swanson, M.D., DAB CR1002 (2003); Diane Amicucci, L.P.N., DAB CR540 (1998); Robert L. Howard, DAB CR459 (1997); Charles Addo Yobo, M.D., DAB CR361 (1995); Doina M. Buzea, M.D., DAB CR310 (1994).

The I.G. has not proposed an enhanced period of exclusion here. The five-year period 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)(2). Neither the DAB nor I may reduce it. Mark K. Mileski, DAB No. 1945 (2004); Salvacion Lee, M.D., DAB No. 1850 (2002).

Finally, Petitioner suggests that if an exclusion is to be imposed, it should begin to run in October 2003, instead of October 2005. P. Br., at 8, lines 27-28; 9; 1-3. Neither the Board nor I can alter the effective date of the period, which by operation of law is set at 20 days after the I.G.'s notice letter of September 30, 2005. Thomas Edward Musial, DAB No. 1991 (2005); Douglas Schram, R.Ph., DAB No. 1372; David D. DeFries, DAB No. 1317 (1992); Richard D. Philips, DAB No. 1279 (1991); Samuel W. Chang, M.D., DAB No. 1198 (1990).

Summary disposition in an exclusion case such as this one is appropriate when there are no disputed issues of material fact and when those undisputed facts, clear and not subject to conflicting interpretation, demonstrate that one party is entitled to judgment as a matter of law. Summary disposition is explicitly authorized by the terms of 42 C.F.R. �1005.4(b)(12), and this forum looks to FED. R. CIV. P. 56 for guidance in applying that regulation. Tanya A. Chuoke, R.N., DAB No. 1721; Robert C. Greenwood, DAB No. 1423 (1993); Thelma Walley, DAB No. 1367; John W. Foderick, M.D., DAB No. 1125 (1990). When the undisputed material facts of a case support summary disposition, there is no right to, and no need of, a full evidentiary hearing. Surabhan Ratanasen, M.D., DAB No. 1138 (1990); John W. Foderick, M.D., DAB No. 1125. The material facts in this case are undisputed, clear, and unambiguous. They support summary disposition as a matter of law, and this Decision issues accordingly.

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 Mark D. Perrault, M.D., from participation in Medicare, Medicaid, and all other federal health care programs for a period of five years, pursuant to the terms of section 1128(a)(1) of the Act, 42 U.S.C. � 1320a-7(a)(1), is thereby sustained.

Richard J. Smith

Administrative Law Judge

1. When he signed the plea agreement and pleaded nolo contendere, Petitioner was fully aware of the potential for exclusion as a result of his conviction, and of the consequences of such an exclusion. Paragraphs 13, 14, and 15 of the plea agreement expressly acknowledged both the potential and the consequences, and those typed paragraphs are made even more specific and precise by substantial and detailed handwritten interlineations to which the initials "MP" are annotated. Part of paragraph 13 reads: "While excluded, neither defendant MARK PERRAULT nor any company owned by defendant will be eligible to be paid by Medi-Cal or Medicare, and no one who employs defendant MARK PERRAULT will be eligible to be paid by Medi-Cal or Medicare for services rendered by defendant." I.G. Ex. 3, at 4.