SUBJECT:

Lisa Alice Gantt,

Petitioner,

The Inspector General.

DECISION

I sustain the determination of the Inspector General (I.G.) to exclude Petitioner, Lisa Alice Gantt, from participating in Medicare, Medicaid, and all other federally-funded health care programs for a period of five years.

I. Background

During the time period relevant to this case, Petitioner was a registered nurse in the State of Florida. I.G. Exhibit (Ex.) 1. On June 11, 2001, Petitioner pled guilty to two felony charges and was convicted in the Circuit Court for Duval County, Florida. Petitioner was found to have unlawfully possessed controlled substance paraphernalia and unlawfully sold or delivered cocaine, a controlled substance, in violation of Florida Statutes � 893.13(1)(a)(1). I.G. Ex.2.

On June 30, 2006, the I.G. notified Petitioner that she was being excluded from participation in Medicare, Medicaid, and all federal health care programs for a period of five years pursuant to section 1128(a)(4) of the Social Security Act (Act). Although Petitioner was convicted in June 2001, the I.G. did not exclude her until June 2006. The record before me does not explain the five-year period between Petitioner's conviction and the I.G.'s final determination to exclude Petitioner.

By letter dated July 6, 2006, Petitioner requested review of her five-year exclusion. On August 16, 2006, I held a pre-hearing conference with both parties and advised Petitioner of her right to be represented by an attorney. Petitioner indicated that, although she understood her right to be represented by counsel, she would represent herself in these proceedings. The parties agreed that an in-person hearing was not necessary and I set a schedule for the submission of briefs and documents. See Order dated August 18, 2006.

Pursuant to this schedule, the I.G. submitted a brief (I.G. Br.) with three proposed exhibits and a reply brief (I.G. Reply). Petitioner submitted a brief (P. Br.) with five exhibits. There being no objections, I.G. Exs. 1-3 and Petitioner Exs. 1-5 are admitted into evidence.

Petitioner did not contest the fact that she was convicted of a felony offense that falls within the scope of section 1128(a)(4) of the Act. Moreover, Petitioner did not contest that her conviction constitutes a sufficient basis for her mandatory five-year exclusion under the Act. P. Br. at 3. Therefore, the material facts in this case are not in dispute.

II. Issues

In the specific context of this record, there are two legal issues before me:

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.

There is an additional issue before me that arises from the timing of the I.G.'s mandatory exclusion. Petitioner requests a retroactive application of the exclusion. Petitioner notes that the I.G.'s determination to exclude her occurred five years after her 2001 conviction. Petitioner points out that she has not actively practiced as a registered nurse for a period of eight years and contends that this period of inactivity should be considered. P. Br. at 3.

As discussed below, my authority is limited in scope by the Secretary's regulations. Irrespective of the reasons for or how long the I.G.'s delay in the imposition of the exclusion may be, I do not have the authority to grant the relief that Petitioner seeks. The regulations do not permit me to provide a retroactive application of the exclusion.

III. Findings of fact and conclusions of law

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 lettered or numbered 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.

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 the Health Insurance Portability and Accountability Act (HIPAA) "relating to the unlawful manufacture, distribution, prescription, or dispensing of a controlled substance" be excluded from all federal health care programs.

B. The statute mandates a five-year minimum period of exclusion.

An exclusion under section 1128(a)(4) must be for a minimum mandatory period of five years. The I.G. set the term of Petitioner's exclusion at five years and Petitioner does not dispute the reasonableness of the length of her exclusion. P. Br. at 3. Therefore, as set forth in section 1128(c)(3)(B) of the Act, subject to paragraph (G), the minimum period of Petitioner's exclusion shall not be less than five years.

C. The regulations do not permit me to change the effective date of Petitioner's exclusion.

Five years have passed since Petitioner's conviction and during this five-year period, Petitioner appears to have completed the requirements and sought the treatments prescribed by the court. However, an administrative law judge is without authority to alter the effective date of an exclusion. Samuel W. Chang, M.D., DAB No. 1198 (1990).

Furthermore, the regulations do not afford me the authority to retroactively apply the exclusion. Despite the lapse of time between Petitioner's conviction and the I.G.'s imposition of an exclusion, I do not have the authority to grant the relief that Petitioner seeks.

IV. Conclusion

For the above stated reasons, I conclude that the I.G. had the authority to exclude Petitioner from Medicare, Medicaid, and all other federal health care programs for a period of five years. Therefore, I sustain Petitioner's five-year exclusion.

Administrative Law Judge