SUBJECT:

Jana Allen, a/k/a
Jana L. Neighbors,

Petitioner,

The Inspector General.

DECISION

Petitioner, Jana Allen (who has also been known as Jana L. Neighbors), appeals the decision of the Inspector General (I.G.), made pursuant to section 1128(a)(4) of the Social Security Act (Act), to exclude her from participation in Medicare, Medicaid, and all federal health care programs for a period of five years. For the reasons discussed below, I find that the I.G. is authorized to exclude Petitioner, and that the statute mandates a minimum five-year exclusion.

I. Background

By letter dated April 29, 2005, the I.G. notified Petitioner of his decision to exclude her from program participation for five years. The letter explained that the exclusion action was taken pursuant to section 1128(a)(4) of the Act because Petitioner was convicted of a felony offense relating to the unlawful manufacture, distribution, prescription, or dispensing of a controlled substance. In a letter dated July 10, 2006, Petitioner requested review. Although the regulations governing these proceedings require that a hearing request be filed within sixty days of receipt of the notice letter (42 C.F.R. �� 1001.2007(b), 1005.2(c) and (e)(1)), Petitioner asserts that she did not receive the notice letter until May 10, 2006, and the I.G. does not challenge the timeliness of her appeal.

I held a telephone prehearing conference on August 22, 2006, at which Petitioner was represented by counsel. The parties agreed that the case could be resolved on the written submissions, and we set a briefing schedule. Order and Schedule (August 24, 2006).

Pursuant to my scheduling order, the I.G. submitted his Brief on the Merits (I.G. Br.) with five exhibits attached, I.G. Exhibits (I.G. Exs.) 1-5. Petitioner filed her response (P. Br.) with three exhibits attached, Petitioner's Exhibits (P. Exs.) 1-3. ⁽¹⁾ The I.G. submitted a reply brief (Reply) with four additional exhibits attached, I.G. Exs. 6-9. There being no objections, I.G. Exs. 1-9 and P. Exs. 1-3 are admitted into evidence.

II. Issue

The sole issue before me is whether the I.G. had a basis upon which to exclude Petitioner from participation in the Medicare, Medicaid, and all federal health care programs. Because an exclusion under section 1128(a)(4) must be for a minimum period of five years, the reasonableness of the length of the exclusion is not an issue.

Petitioner also argues that the I.G. unreasonably delayed imposing the exclusion. As discussed below, I have no authority to alter the I.G.'s timing of the exclusion.

III. Discussion

I make findings of fact and conclusions of law to support my decision in this case. I set forth each finding below, in italics, as a separate numbered or lettered heading.

A. Petitioner was convicted of a felony relating to the unlawful manufacture, distribution, prescription, or dispensing of a controlled substance, within the meaning of section 1128(a)(4) of the Act.

The critical facts of this case are not in dispute. Petitioner was a licensed practical nurse in the State of Missouri. I.G. Ex. 2, at 2. On January 17, 2002, she pled guilty in state court to the felony offense of possessing a chemical with the intent to create a controlled substance. Specifically, she

knowingly possessed two lithium batteries, charcoal lighter fluid, four blister packs of pills containing ephedrine, one empty jug of muriatic acid, and numerous syringes with the intent to process that chemical to create a controlled substance, to wit: methamphetamine.

I.G. Exs. 5, 1. The Court accepted her plea, sentenced her to five years probation, and ordered her to attend and complete treatment for substance abuse. I.G. Ex. 1.

Section 1128(a)(4) of the Act requires that any individual or entity convicted of a felony criminal offense that occurred after the date of the enactment of HIPAA (August 21, 1996) "relating to the unlawful manufacture, distribution, prescription, or dispensing of a controlled substance" be excluded from all federal health care programs. ⁽²⁾ Petitioner does not dispute either the date of the criminal offense or her felony conviction. Further, inasmuch as Petitioner possessed the necessary ingredients with which to manufacture methamphetamine, and admitted that she intended to do so, there seems no question that her felony conviction is directly "related to" the unlawful manufacture of a controlled substance. Nevertheless, Petitioner suggests that subjecting her to a mandatory exclusion would not further the purpose of the law, because her misconduct harmed neither her patients nor the program. P. Br. at 6-7. But the statute does not require a showing of program-relatedness or actual patient harm. Exclusions are imposed to protect health care programs from those who have demonstrated themselves to be untrustworthy and a threat to the integrity of federal health care programs. See Manocchio v. Kusserow, 961 F.2d 1539 (11^th Cir. 1992); Douglas Schram, R.Ph., DAB No. 838 (1992). An individual who intends to manufacture methamphetamine can hardly claim to possess a level of trustworthiness required for program participation.

B. The statute mandates a five-year minimum period of exclusion, and mitigating factors may not be considered to reduce that period of exclusion.

An exclusion under section 1128(a)(4) must be for a minimum mandatory period of five years. As set forth in section 1128(c)(3)(B) of the Act:

Subject to subparagraph (G), in the case of an exclusion under subsection (a), the minimum period of exclusion shall be not less than five years. . . .

When the I.G. imposes an exclusion for the minimum mandatory five-year period, the reasonableness of the length of the exclusion is not an issue. 42 C.F.R. � 1001.2007(a)(2).

C. I have no authority to change the effective date of Petitioner's exclusion.

Petitioner complains that the I.G. unjustly delayed imposing this exclusion. She was convicted in January 2002, but not excluded until April 2005. ⁽³⁾ However, an administrative law judge is without authority to change the effective date of an exclusion. As a matter of law, an exclusion must become effective 20 days from the date of the I.G.'s notice of exclusion. 42 C.F.R. � 1001.2002. The administrative law judge may not review the timing of the I.G.'s determination to impose an exclusion or alter retroactively the date of the imposition of the exclusion. Tanya A. Chuoke, R.N., DAB No. 1721 (2000); Samuel W. Chang, M.D., DAB No. 1198 (1990); Susan Malady, R.N., DAB CR835 (2001), aff'd on other grounds, DAB No. 1816 (2002); Larry B. Shuster, R.Ph., DAB CR872 (2002); Kathleen E. Talbot, DAB CR772 (2001).

IV. Conclusion

For these reasons, I conclude that the I.G. properly excluded Petitioner from participation in Medicare, Medicaid, and all other federal health care programs, and I sustain the five-year exclusion.

Carolyn Cozad Hughes

Administrative Law Judge

1. Petitioner labeled her exhibits A-C. To conform to Civil Remedies Division procedures, we have changed Petitioner's lettered exhibits to numbered exhibits.

2. "Federal health care program" is defined in section 1128B(f) of the Act as any plan or program that provides health benefits, whether directly, through insurance, or otherwise, which is funded directly, in whole or in part, by the United States Government, or any state health care program.

3. Petitioner also complains that the I.G. sent her exclusion letter to the wrong address, so she received it a year late. However, since the I.G. does not challenge the timeliness of her appeal, and the notice delay has not in any way extended the period of her exclusion, it does not appear that she has suffered any harm as a result.