SUBJECT:

Dirk G.Wood, M.D.,

Petitioner,

The Inspector General

DECISION

Dirk G. Wood, M.D. (Petitioner), is excluded from participation in Medicare, Medicaid, and all other federal health care programs pursuant to section 1128(a)(4) of the Social Security Act (Act) (42 U.S.C. § 1320a-7(a)(4)), effective September 19, 2002, based upon his conviction for felonies relating to the unlawful manufacture, distribution, prescription, or dispensing of a controlled substance. There is a proper basis for exclusion. Petitioner's exclusion for five years is mandatory pursuant to section 1128(c)(3)(B) of the Act ( 42 U.S.C. § 1320a-7(c)(3)(B)). Further, extension of the minimum period of exclusion by five years, for a total period of ten years, is not unreasonable given the presence of three aggravating factors and no mitigating factor.

I. PROCEDURAL HISTORY

Petitioner was notified of his exclusion by letter dated August 30, 2002. The Inspector General (I.G.) cited section 1128(a)(4) of the Act as the basis for Petitioner's exclusion. Petitioner requested a hearing to challenge the I.G.'s action by letter dated October 25, 2002. On November 29, 2002, the case was assigned to me for hearing and decision. On January 6, 2003, I conducted a telephonic prehearing conference which I continued to allow Petitioner to obtain counsel. On February 21, 2003, I conducted a second telephonic prehearing conference, the substance of which is memorialized in my order of February 24, 2003. Pursuant to the briefing schedule established in that order, the I.G. filed a brief in support of summary disposition on March 24, 2003 (I.G. Br.), with attached exhibits 1 through 5 (I.G. Ex.). Petitioner filed his brief opposing summary disposition and cross-motion for summary judgment on May 9, 2003 (P. Br.), with attached exhibits A through K (P. Ex.). The I.G. filed a reply brief on May 23, 2003 (I.G. Reply). The parties made no objections to the exhibits offered by one another and the offered exhibits are admitted as I.G. Exhibits 1 through 5 and Petitioner Exhibits A through K.

Both parties assert that they are entitled to summary judgment. Petitioner asserts that, if he is not entitled to summary judgment, there are material facts in dispute which "cannot be determined without a face-to-face hearing." P. Br. at 7. As explained below, I conclude there are no material facts in dispute and grant the I.G.'s request for summary disposition.

II. FINDINGS OF FACT

The following findings of fact are based upon the uncontested and undisputed assertions of fact in the parties' pleadings and the exhibits admitted.

1. During the period relevant to this case, Petitioner was a medical doctor licensed by the States of Ohio and Michigan. I.G. Ex. 5; P. Exs. A and C.

2. On February 9, 2001, in the Court of Common Pleas of Clark County, Ohio, Petitioner was found guilty pursuant to his pleas of 19 felony counts of intentionally making, uttering, or selling, or knowingly possessing false or forged prescriptions for controlled substances in violation of section 2925.23(B) of the Ohio Revised Code and one count of attempted drug possession in violation of section 2925.11 of the Ohio Revised Code. I.G. Exs. 1, 2.

3. Petitioner was also found guilty pursuant to his pleas of five felony counts of unlawful possession of a dangerous ordinance in violation of section 2923.17 of the Ohio Revised Code. I.G. Ex. 2.

4. On February 14, 2001, the Court sentenced Petitioner to a one-year term of imprisonment for each of the 25 counts to which he pled guilty, but, the terms were to run concurrently. Petitioner was also ordered to pay the maximum financial sanction of $77,500. I.G. Ex. 3, at 2.

5. The acts which resulted in the drug convictions were committed over a period of one year or more, i.e., between January 1998 and January 2000. I.G. Exs. 1, 2.

6. On August 8, 2001, the State Medical Board of Ohio (Ohio Medical Board), after reviewing evidence concerning Petitioner's convictions and drug use, permanently revoked Petitioner's physician's license to practice medicine in Ohio. I.G. Ex. 4, at 1.

7. The I.G. notified Petitioner by letter dated August 30, 2002, that he was being excluded from participation in Medicare, Medicaid, and all other federal health care programs for ten years pursuant to section 1128(a)(4) of the Act, effective 20 days from the date of the letter. The I.G. stated that the action was based upon Petitioner's conviction of a criminal offense related to the unlawful manufacture, distribution, prescription, or dispensing of a controlled substance.

8. Petitioner timely requested a hearing.

III. CONCLUSIONS OF LAW

1. Summary judgment is appropriate in this case as there are no material facts in dispute.

2. Petitioner was convicted within the meaning of section 1128(i) of the Act (42 U.S.C. § 1320a-7(i)).

3. Petitioner was convicted of felonies relating to the unlawful manufacture, distribution, prescription, or dispensing of a controlled substance within the meaning of section 1128(a)(4) of the Act (42 U.S.C. § 1320a-7(a)(4)).

4. There are three aggravating factors present in this case: Petitioner's acts occurred over a period of one year or more (42 C.F.R. § 1001.102(b)(2)), Petitioner was incarcerated (42 C.F.R. § 1001.102(b)(5)), and Petitioner was subject to adverse action by the Ohio Medical Board based on the same circumstances as serve as the basis for the proposed exclusion and convicted of other offenses (42 C.F.R. § 1001.102(b)(9)).

5. There are no mitigating factors, as defined in 42 C.F.R. § 1001.102(c), present in this case.

6. Petitioner's conviction of drug-related felonies requires that he be excluded from participation in Medicare, Medicaid, and other federal health care programs for a minimum period of five years. Act, §§ 1128(a)(4) and 1128(c)(3)(B); 42 U.S.C. § 1320a-7(a)(4) and (c)(3)(B).

7. Extending Petitioner's period of exclusion by five years, for a total of ten years, is not unreasonable given the presence of three aggravating factors and no mitigating factor.

8. Under 42 C.F.R. § 1001.2002(b), Petitioner's exclusion was effective on September 19, 2002, twenty days after the date of the I.G.'s August 30, 2002 notice of exclusion.

V. DISCUSSION

A. APPLICABLE LAW

Petitioner's right to a hearing by an administrative law judge (ALJ) and judicial review of the final action of the Secretary is provided by section 1128(f) of the Act (42 U.S.C. § 1230a-7(f)). Petitioner's request for a hearing was timely filed and I do have jurisdiction. However, the Secretary of the Department of Health and Human Services (Secretary) has by regulation limited my scope of review to two issues: (1) whether there is a basis for the imposition of the sanction, and, (2) whether the length of the exclusion is unreasonable. 42 C.F.R.§ 1001.2007(a)(1). The standard of proof is a preponderance of the evidence and there may be no collateral attack of the conviction that is the basis for the exclusion. 42 C.F.R. § 1001.2007(c) and (d). 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).

Pursuant to section 1128(a)(4) of the Act, the Secretary must exclude from participation in the Medicare and Medicaid programs any individual convicted for an offense which occurred after August 21, 1996, under Federal or State law, of a criminal offense consisting of a felony relating to the unlawful manufacture, distribution, prescription, or dispensing of a controlled substance.

Section 1128(c)(3)(B) of the Act provides that an exclusion imposed under section 1128(a)(4) of the Act shall be for a minimum period of five years. Pursuant to 42 C.F.R. § 1001.102(b), the period of exclusion may be extended based on the presence of specified aggravating factors. Only if the aggravating factors justify an exclusion of longer than five years may mitigating factors be considered as a basis for reducing the period of exclusion to no less than five years. 42 C.F.R.§ 1001.102(c).

B. ISSUES

Petitioner does not dispute that he was convicted of felonies relating to the unlawful manufacture, distribution, prescription, or dispensing of a controlled substance within the meaning of the Act. Petitioner also concedes that the Act mandates that he be excluded from participation in Medicare, Medicaid and all federal health care programs for a minimum period of five years. P. Br. at 2. ⁽¹⁾ The only issue presented by this case is:

Whether a period of exclusion of ten years, the minimum five-year exclusion plus five additional years based on the presence of aggravating factors, is unreasonable.

I also address, as a separate issue, Petitioner's argument that his period of exclusion should run from the date of his conviction rather than the twentieth day after the date of the I.G.'s notice of exclusion.

C. ANALYSIS

Summary judgment is appropriate and no hearing is required where either: there are no disputed issues of material fact and the only questions that must be decided involve application of law to the undisputed facts; or, the moving party must prevail as a matter of law even if all disputed facts are resolved in favor of the party against whom the motion is made. A party opposing summary judgment must allege facts which, if true, would refute the facts relied upon by the moving party. See, e.g., Fed. R. Civ. P. 56(c); Garden City Medical Clinic, DAB No. 1763 (2001); Everett Rehabilitation and Medical Center, DAB No. 1628, at 2 (1997) (in-person hearing required where non-movant shows there are material facts in dispute that require testimony); see also, New Millennium CMHC, DAB CR672 (2000); New Life Plus Center, DAB CR700 (2000).

As explained below, Petitioner has not presented evidence to establish the existence of a disputed issue of material fact and has failed to identify such an issue in his brief. Accordingly, summary judgment is appropriate and no hearing is necessary in this case for a full and fair disposition.

1. There are three aggravating factors, as defined by 42 C.F.R. § 1001.102(b), in this case.

Pursuant to section 1128(c)(3)(B) of the Act, five years is the minimum period for a mandatory exclusion pursuant to 1128(a)(4). In this case, the I.G. added five years to the minimum five years for a total of ten years. The I.G. asserts the additional five years is reasonable due to the presence of three aggravating factors:

(1) Petitioner's acts occurred over a period of one year or more (42 C.F.R. § 1001.102(b)(2));

(2) Petitioner was incarcerated (42 C.F.R. § 1001.102(b)(5)); and

(3) Petitioner's medical license was permanently revoked by the State of Ohio based on his conviction of drug offenses - the same circumstances as serve as the basis for the proposed exclusion, and Petitioner was convicted of felony offenses for possession of dangerous ordinance (42 C.F.R. § 1001.102(b)(9)).

Petitioner concedes that these three aggravating factors are present. P. Br. at 7. Petitioner argues however, that these are only three of the nine aggravating factors specified in the regulation and that the I.G. has not met the burden of showing that a five-year extension of the period of exclusion is warranted. I agree that these three aggravating factors are present in this case based on the concession of Petitioner as well as the undisputed facts. I also conclude, as discussed with regard to the reasonableness of the period of exclusion, that the three factors do warrant at least a five-year extension of the period of exclusion.

Subsection 1001.102(b)(2) provides that a five-year exclusion period may be lengthened if "[t]he acts that resulted in the conviction, or similar acts, were committed over a period of one year or more." Petitioner does not deny that on February 9, 2001, he pled guilty to felonies relating to the unlawful manufacture, distribution, prescription, or dispensing of a controlled substance. I.G. Ex. 2. Petitioner does not dispute that the indictment upon which he was convicted alleged that Petitioner engaged in his unlawful drug conduct from January 1998 through January 2000 (I.G. Ex. 1) and the findings of guilt indicate no variation from the terms of the indictment. I.G. Ex. 2. Thus there are no disputed material facts as to whether the acts that resulted in Petitioner's drug-related convictions were committed over a period of at least two years.

Subsection 1001.102(b)(2)(5) provides that a five-year exclusion period may be lengthened if "[t]he sentence imposed by the court included incarceration." Petitioner does not dispute that he was sentenced to imprisonment of one year for each of the 25 counts of which he was convicted. I.G. Ex. 2. Thus, there are no disputed material facts that Petitioner was sentenced to incarceration.

Subsection 1001.102(b)(2)(9) provides that a five-year exclusion period may be lengthened if the individual --

was convicted of other offenses besides those which formed the basis for the exclusion, or has been the subject of any other adverse action by any Federal, State or local government agency or board, if the adverse action is based on the same set of circumstances that serves as the basis for imposition of the exclusion.

Petitioner also does not dispute that his license to practice medicine was revoked by the Ohio Medical Board and the revocation was based on the same set of circumstances that serves as the basis for imposition of the exclusion. ⁽²⁾ I.G. Ex. 4. Additionally, Petitioner does not dispute that he was also convicted of five felony counts of possession of dangerous ordinance, basically automatic weapons and silencers. I.G. Exs. 1, 2. Thus, there are no material disputed facts as to the presence of this factor.

2. There are no mitigating factors, as defined by 42 C.F.R. § 1001.102(c), present in this case.

Section 1001.102(c) of 42 C.F.R. provides that only if any of the aggravating factors justify a period of exclusion longer than five years may mitigating factors be considered as a basis for reducing the period of the exclusion to no less than five years. The following factors may be considered as mitigating and a basis for reducing the period of exclusion:

(1) The individual or entity was convicted of 3 or fewer misdemeanor offenses, and the entire amount of financial loss to Medicare and the State health care programs due to the acts that resulted in the conviction, and similar acts, is less than $1500;

(2) The record in the criminal proceedings, including sentencing documents, demonstrates that the court determined that the individual had a mental, emotional, or physical condition before or during the commission of the offense that reduced the individual's culpability; or

(3) The individual's or entity's cooperation with Federal or State officials resulted in -

(i) Others being convicted or excluded from Medicare, Medicaid, or all other Federal health care programs,

(ii) Additional cases being investigated or reports being issued by the appropriate law enforcement agency identifying program vulnerabilities or weaknesses, or

(iii) The imposition against anyone of a civil money penalty or assessment under part 1003 of this chapter.

Evidence which does not relate to an aggravating factor or a mitigating factor is irrelevant to determining the length of an exclusion. The burden is upon petitioners to show the presence of mitigating factors. 42 C.F.R. § 1005.15; Darren James, D.P.M., DAB No. 1828, at 4 (2002).

Petitioner asserts that before his addiction he was an accomplished, successful and contributing member of society and by his drug addiction he only hurt himself; that he voluntarily entered a drug treatment program before he was criminally investigated and voluntarily presented himself to and participated in the Ohio Physicians Effectiveness Program; that he presently is an active participant in the Michigan Health Professional Recovery Corporation and does not use drugs now; that the Michigan Medical Board investigated his criminal conviction and prior addiction and did not revoke his license to practice medicine; that of nine possible aggravating factors, only three of them apply to him.

Even assuming all Petitioner's factual assertions to be accurate, they are not related to the mitigating factors listed at 42 C.F.R. § 1001.102(c), and are not relevant to my determination of whether the ten-year exclusion is unreasonable. Petitioner argues that he was addicted to the drugs he prescribed for himself and that that fact should be considered in determining the appropriate period of exclusion. P. Br. at 8, 11 - 12. Section 1001.102(c)(2) of Title 42 C.F.R. does allow consideration as a mitigating factor that the record of the criminal proceedings shows that the sentencing court found the individual of lesser culpability due to a mental, emotional, or physical condition during the commission of the offense. However, Petitioner does not argue and has presented no evidence that the sentencing court considered his drug addiction as lessening his culpability in this case. See Joseph M. Rukse, Jr., R.Ph., DAB No. 1851 (2002). Therefore, Petitioner has failed to show that there are any disputed material facts as to the presence of a mitigating factor.

3. A ten-year exclusion is not unreasonable in this case.

Section 1001.2007(a)(1)(ii) of 42 C.F.R. provides that the ALJ must determine whether the length of exclusion imposed is "unreasonable." In making such a determination, the ALJ is to conduct a "de novo" review as to the facts related to any aggravating and mitigating factors identified at 42 C.F.R. § 1001.102. Joann Fletcher Cash, DAB No. 1725 (2000), fn. 6, and cases cited therein. As the Board has noted, however, the preamble to the regulations governing exclusions states that "[s]o long as the amount of time chosen by the OIG is within a reasonable range, based on demonstrated criteria, the ALJ has no authority to change it under this rule." Id. at 17, quoting 57 Fed. Reg. 3298, 3321 (1992). A "reasonable range" is "a range of exclusion periods that is more limited than the full range authorized by the statute and that is tied to the circumstances of the individual case." Gary Alan Katz, R.Ph., DAB No. 1842, at 8, n. 4 (2002). In determining the reasonable range, it is not the number of aggravating factors that is determinative; rather, it is the quality of the circumstances which is controlling in analyzing these factors. Keith Michael Everyman, D.C., DAB No. 1880 (2003); Barry D. Garfinkel, M.D., DAB No. 1572 (1996).

Thus, my determination of whether or not the exclusionary period in this case is unreasonable hinges on three-points: (1) whether the I.G. has shown the existence of aggravating factors; (2) whether the Petitioner has shown that there is a mitigating factor that the I.G. failed to consider; and (3) whether the period of exclusion is within a reasonable range given the quality of the circumstances of the specific aggravating or mitigating factors. Therefore, having determined that the I.G. properly concluded there are three aggravating factors and no mitigating factor presented in this case, I must consider whether the ten-year exclusion imposed by the I.G. is within the "reasonable range" and therefore not unreasonable - without substituting my judgment for that of the I.G.

Petitioner argues that a ten-year exclusion is "unduly excessive and represents an abuse of discretion" (P. Br. at 2) and that the I.G. "has failed to demonstrate that the aggravating factors found in Section 1001.102 warrant the additional period of exclusion." P. Br. at 7. In support of this conclusion, Petitioner makes a number of arguments and alleges a number of facts in support of these arguments.

Petitioner argues that duration (i.e., that the acts that resulted in the conviction, or similar acts, were committed over a period of one year or more) should not be an aggravating factor in the context of drug addiction because drug addiction is a disease and a disability. P. Br. at 8. Petitioner asserts that 42 C.F.R. § 1001.102(b)(2) was designed to punish more severely those who "cause greater harm to the government or others the longer the behavior persists," not someone who had hurt himself rather than others. Id. Petitioner asserts that the I.G. has recognized that drug addiction is a disease by not taking action against other drug-impaired physicians. Petitioner attached pages from the Ohio Medical Board website (P. Ex. D) listing three physicians who plead guilty to drug-related offenses and represents that no exclusions were imposed on these physicians.

I have no authority to find invalid or refuse to follow federal regulations. 42 C.F.R. § 1005.4(c)(1). The duration of Petitioner's criminal conduct is, as a matter of law, a factor applicable to this case and properly considered in relation to the period of exclusion. To the extent that Petitioner is arguing the factor should be given less weight because it is related to drug addiction, I reject this argument for the following reasons.

•The purpose of the exclusion sanction is to protect programs and beneficiaries from harmful behaviors, not to punish individuals engaged in harmful behaviors. Manocchio v. Kusserow, 961 F.2d 1539 (11^th Cir. 1992); Erickson v. U.S. ex rel. Department of Health and Human Services, 67 F.3d 858, 864, n. 2 (9^th Cir 1995); cf. Patel v. Thompson, 319 F.3d 1317 (11^th Cir. 2003). Drug addiction can result in a range of harmful behaviors such as false prescription writing to obtain drugs, false billing to fund the addiction, and practicing medicine with impaired judgment. Therefore, even if drug addiction is regarded as a disease, health programs and beneficiaries must be protected from drug-addicted health care providers and exclusion is one appropriate means of protection.

•Petitioner's assertions that his drug addiction never hurt other people is irrelevant in evaluating the weight to be given a factor under 42 C.F.R. § 1001.102(b)(2). Katz, DAB No. 1842, at 13. Lack of harm would be relevant to evaluating the weight to be given the aggravating factor listed at 42 C.F.R. § 1001.102(b)(3). Id. That factor concerns whether "the acts that resulted in the conviction, or similar acts, had a significant adverse . . . impact on one or more program beneficiaries or other individuals." However, since the I.G. did not cite section 1001.102(b)(3) as an aggravating factor, Petitioner's assertions are irrelevant in the context of this case.

•Additionally, Petitioner's argument that his drug addiction hurt only him is not credible. Medical doctors occupy positions of trust in the community, both as health care providers and, under federal law, as the authorized dispensers of federally regulated drugs. Petitioner's addiction, abuse of prescription medication, and violation of Ohio drug laws over a roughly two-year period violated his trusted positions while, at a minimum, subjecting his patients to the risk of his treatment while under the residual effects of medication and abusing his prescribing authority for his own personal use. Further, Petitioner obtained these drugs by writing false prescriptions for his employees and friends to fill, without regard for the risk of prosecution that this presented for them. I.G. Ex. 5, at 17; P. Ex. J, at 1; P. Br. at 3.

•Petitioner Exhibit D lists three doctors with drug-related offenses, two of whom are described as having pled guilty to drug-related felonies and been found eligible for treatment in lieu of conviction. It is not within my discretion to initiate action against these individuals. Rather, Congress and the Secretary have granted such power to the I.G. who will take such action as required by law. The fact that action may not have yet been taken in the cases cited by Petitioner does not establish that the I.G. has determined drug addiction is a disease such that it would be inappropriate to extend the duration of mandatory exclusions of drug-impaired physicians, or, in any respect, mitigate the seriousness of the risk Petitioner's behavior posed to health care programs and program beneficiaries.

I find that the duration of the offenses reflects the seriousness of Petitioner's offenses, is a significant factor reflecting upon his future trustworthiness, and justifies lengthening his exclusion beyond the statutory minimum of five years.

Regarding the sentence of incarceration, Petitioner asserts that his incarceration resulted from the animosity of the local sheriff arising from disputes Petitioner had with the sheriff when Petitioner was the coroner of Clark County. P. Br. at 9. Petitioner contends that the prosecution, "by the crafty drafting of the indictment," aggregated the three instances Petitioner wrote a prescription for oxycontin (Count 23 of the Indictment) in order to charge him with a second degree felony. P. Br. at 9. According to Petitioner, it was the presence of this second degree felony charge which precluded the court, under Ohio law, from considering a motion for treatment in lieu of conviction. Id. Petitioner concludes that "[i]t cannot seriously be argued that a person who is more vigorously prosecuted than another and/or appears before a more onerous judge and thus forced to suffer prison, is more deserving of a longer period of expulsion." P. Br. at 8 - 9.

Petitioner presents no evidence in support of his conspiracy theory. But even if I assume Petitioner's conspiracy theory is credible, it would not be relevant in determining the reasonableness of the period of exclusion in this case. Assuming the sheriff and the prosecutorial staff of Clark County treated Petitioner more harshly than they would have treated other drug-addicted physicians, assertions of vindictive prosecution are irrelevant in the context of exclusions under section 1128(a)(4). Petitioner elected to plead guilty rather than contest the charges in the trial court and as a matter of law he cannot now mount a collateral attack before me - Petitioner is bound by the terms of the plea arrangement he negotiated. 42 C.F.R. § 1001.2007(d).

I find that the adjudged incarceration in this case reflects the seriousness of Petitioner's offenses, is a significant factor reflecting upon his future trustworthiness, and justifies lengthening his exclusion beyond the statutory minimum of five years.

As to the revocation of his license by the Ohio Medical Board, which was based on the same set of circumstances that served as the basis for his exclusion, Petitioner argues that he was not present to address the Board; that the Board has treated others less harshly; and that the hearing officer who recommended revocation inconsistently also said "the board may wish to permit Dr. Wood to retain his license." P. Br. at 10. Additionally, Petitioner pointed out that the Michigan Medical Board allowed him to keep his license. Id. at 11.

I reject these arguments for the following reasons.

•First, in the license revocation proceeding in Ohio, Petitioner had a hearing before a hearing examiner at which he testified, presented eight witnesses, and was represented by counsel. I.G. Ex. 5.

•Second, the fact that the hearing officer offered the Ohio Medical Board the alternative of allowing Petitioner to retain his license does not negate the fact that, having reviewed the record before the hearing officer, the Ohio Medical Board chose to revoke his license.

•Third, assuming the Ohio Medical Board did not revoke the licences of some other drug-convicted physicians, this fact is irrelevant. As the Departmental Appeals Board has said, "[g]enerally, we consider it reasonable to infer that a licensing body will base its decision making on appropriate factors and make a considered judgment about what sanction to impose based on the facts of the particular case." Katz, DAB No. 1842, at 12. Facts about the other drug-convicted physicians are not before me and the Ohio Medical Board's considered judgment in those cases does not negate the fact that, in Petitioner's case, its considered judgment resulted in revocation of Petitioner's license.

•The fact that the Michigan Medical Board allowed him to retain his medical license in Michigan does not negate the fact that the Ohio Medical Board revoked his license.

I find that the revocation of Petitioner's medical license reflects the seriousness of Petitioner's drug-related offenses, is a significant factor reflecting upon his future trustworthiness, and justifies lengthening his exclusion beyond the statutory minimum of five years.

Petitioner also objects to the I.G.'s reliance on his conviction for five felony counts of possession of dangerous ordinance, noting that his failure to register these guns was not the basis for his exclusion and that the Ohio Medical Board was satisfied that Petitioner was actually a gun collector. P. Br. at 3. This conviction clearly falls within 42 C.F.R. § 1001.102(b)(9) which provides that convictions of "other offenses besides those which formed the basis for the exclusion" constitute an aggravating factor. Further, even assuming Petitioner was a legitimate licensed gun collector, this conviction shows Petitioner was not careful about abiding by applicable laws.

Petitioner raises an additional argument based on 42 C.F.R. § 1001.102(d)(1) which provides for a minimum exclusion of ten years if an "individual has been convicted on one other occasion of one or more offenses for which an exclusion may be effected under section1128(a) of the Act." Petitioner argues that this regulation shows that a ten-year exclusion is "only reserved for repeat offenders." P. Br. at 12.

I reject this argument. Section 1001.102(d)(1) is based on section 1128(c)(3)(G)(i) of the Act. Section 1128(c)(3)(G)(i) sets forth a congressionally mandated minimum exclusion period for one-time repeat offenders. Section 1128(c)(3)(G)(i) does not restrict the I.G.'s discretion to lengthen the minimum duration of a one-time offender's exclusion (see 42 C.F.R. § 1001.102(d)(1)) or mean that Congress intended only one-time repeat offenders to be subject to ten-year exclusions.

In summary, illegal conduct occurring over a year or more, incarceration, and adverse actions by another government entity are factors which do not exist in every drug offense conviction and factors which the I.G. has reasonably determined to be a "basis for lengthening the mandatory exclusion period." Katz, DAB No. 1842, at 7. In this case, these factors indicate that the illegal conduct was not a temporary, short-lived aberration; that a court viewed the illegal conduct as so serious that incarceration was justified; and that a licensing body independently determined that the illegal conduct was so serious as to merit revocation of Petitioner's license. Given the presence of these three aggravating factors, the quality of the relevant circumstances surrounding the three aggravating factors, and the absence of mitigating factors, I conclude that an exclusion of ten years is not unreasonable.

4. The exclusion began to run as of September 19, 2002, not as Petitioner urges, the date his incarceration began.

Petitioner argues without citation to any authority, that his period of exclusion should run from February 9, 2001, the date of his conviction, rather than September 19, 2002.

Section 1001.2002(b) of 42 C.F.R. states that a period of exclusion begins to run twenty days after the date of the I.G.'s exclusion letter. The I.G.'s notice was dated August 30, 2002 and the twentieth day thereafter was September 19, 2002. I have no authority to find invalid or refuse to follow federal regulations and cannot alter the beginning date of an exclusion. 42 C.F.R. § 1005.4(c)(1). Petitioner's period of exclusion was effective and runs from September 19, 2002.

V. CONCLUSION

For the foregoing reasons, Petitioner is excluded from participation in Medicare, Medicaid and all other federal health care programs for a period of ten years, effective September 19, 2002.

KEITH W. SICKENDICK

Administrative Law Judge

1. Petitioner asserts that he "considers the Act's breadth as it extends to his debarment as unconstitutionally arbitrary, capricious and violative of his Fifth and Fourteenth Amendment rights to due process of law and equal protection under the law." P. Br. at 2. However, Petitioner withdraws and does not raise this argument before me because, as he correctly acknowledges, an ALJ has no authority to declare a federal statute unconstitutional. Susan Malady, R.N., DAB No.1816 (2002).

2. Although the I.G. has not asserted it as a separate basis for exclusion, section 1128(b)(4) of the Act, allows the I.G. to permissively exclude any individual whose license to provide health care has been revoked by any State licensing authority for reasons bearing on the individual's professional competence, professional performance, or financial integrity. Under section 1128(c)(3)(E), the period of a section 1128(b)(4) exclusion may not be less than the period during which the individual's license is revoked.