SUBJECT:

Annamali Ashokan, M.D.,

Petitioner,

The Inspector General

I sustain the determination of the Inspector General (I.G.) to exclude Petitioner, Annamali Ashokan, M.D., from participating in Medicare, Medicaid, and all federal health care programs for a period of five years. I find that the I.G. is authorized to exclude Petitioner pursuant to section 1128(a)(2) of the Social Security Act (Act), and that the statute mandates a five-year period of exclusion.

I. Background

By letter dated August 30, 2002, the I.G. notified Petitioner that he was being excluded from participation in Medicare, Medicaid, and all federal health care programs (as defined in section 1128B(f) of the Act) for a period of five years based on his conviction in California Superior Court. Petitioner timely requested a hearing and the case was assigned to me. On November 7, 2002, I convened a prehearing conference by telephone, at which the parties agreed that an in-person hearing was not necessary, and that the case could be heard based on written submissions in lieu of an in-person hearing. See Order dated November 13, 2002.

The I.G. submitted a motion for summary disposition and brief, accompanied by six exhibits (I.G. Exs. 1 - 6). Petitioner submitted a response brief (Petitioner's Reply), accompanied by three exhibits (P. Exs. 1 - 3). The I.G. submitted a reply brief. In the absence of objection, I receive into evidence I.G. Exs. 1 - 6 and P. Exs. 1 - 3.

The critical facts of this case are not in dispute. Petitioner was a licensed physician in the State of California who, on April 13, 2000, entered a plea of no contest to a charge of sexual exploitation, section 729(a) of the California Business & Professions Code, which Petitioner concedes is "an offense relating to abuse or neglect of a patient in connection with the delivery of health care." I.G. Ex. 1; Petitioner's Reply at 1. Based on the same inappropriate act, the California Medical Board ordered his license revoked, but then stayed the revocation and placed him on probation for five years, with specific conditions attached, including the 60-day suspension of his license to practice medicine. P. Ex. 3; I.G. Ex. 5. On June 20, 2002, the California Superior Court entered an order that withdrew his plea, entered a plea of not guilty, and dismissed his conviction. P. Ex. 1.

Petitioner concedes that he was "convicted" within the meaning of section 1128(a)(2) of the Act, but he asks that he be allowed to petition for reinstatement upon the successful completion of his probationary period under the terms and conditions of the California Medical Board order. His sole request is that the five-year period of exclusion coincide with the period of probation. Petitioner's Reply at 3. Although Petitioner's request does not seem unreasonable, I have no authority to grant it.

II. Discussion ⁽¹⁾

1. Because Petitioner was convicted of a criminal offense relating to the neglect or abuse of a patient in connection with the delivery of a health care item or service, the statute requires that he be excluded from participation in federal health care programs for a minimum of five years.

Section 1128(a)(2) of the Act mandates the exclusion from federal health care programs of an individual or entity convicted of "a criminal offense relating to neglect or abuse of patients in connection with the delivery of a health care item or service." Section 1128(i) of the Act defines the term "convicted" to include: (1) when a judgment of conviction has been entered against the individual or entity by a federal, State, or local court, regardless of whether there is an appeal pending or 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 or entity by a federal, State, or local court; (3) when a plea of guilty or nolo contendere by the individual or entity has been accepted by a federal, State, or local court; or (4) when the individual or entity has entered into participation in a first offender, deferred adjudication, or other arrangement or program where judgment of conviction has been withheld. Act, section 1128(i)(1) - (4).

Section 1128(c)(3)(B) of the Act sets the minimum exclusion period at five years. In a case where the exclusion is for the minimum amount of time, no question of reasonableness exists, and, notwithstanding the persuasiveness of Petitioner's arguments or any other factor, I have no authority to decrease the length of the exclusion below the five-year minimum. 42 C.F.R. § 1001.102(a).

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

Petitioner asks that the effective date of exclusion run concurrently with his medical license probationary period, which has the practical effect of backdating the effective date of his exclusion by about one year (from September 2002 back to September 2001). I.G. Ex. 5, at 2. It is well-settled that 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. An administrative law judge has no authority to review the timing of the I.G.'s determination to impose an exclusion or to alter retroactively the date of the imposition of the exclusion. Tanya A. Chuoke, 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, M.D., DAB CR772 (2001).

III. Conclusion

For the reasons set forth above, I conclude that the I.G. properly excluded Petitioner from participation in Medicare, Medicaid, and all federal health care programs, and the five-year exclusion is sustained.

Carolyn Cozad Hughes

Administrative Law Judge

1. In the Discussion section of this decision, I make findings of fact and conclusions of law, which are set out, in italics and bold, as separate headings.