SUBJECT:

Frank B. Fondren, III, M.D.,

Petitioner,

The Inspector General

DECISION

There is a basis for Petitioner's exclusion from participation in Medicare, Medicaid, and all federal health care programs pursuant to section 1128(a)(4) of the Social Security Act (Act) (42 U.S.C. § 1320a-7(a)(4)), for not less than five years, the minimum period mandated by section 1128(c)(3)(B) of the Act (42 U.S.C. § 1320a-7(c)(3)(B)). Pursuant to 42 C.F.R. § 1001.2002, the five-year period of exclusion begins to run on June 19, 2003, the twentieth day after the May 30, 2003 I.G. notice of intent to exclude.

I. PROCEDURAL HISTORY

Petitioner was notified by letter from the Inspector General (I.G.) dated May 30, 2003, that, effective 20 days thereafter, he 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 Act. The I.G. cited as the basis for her action that Petitioner had been convicted, in the United States District Court for the Southern District of Alabama, of a felony offense related to the unlawful manufacture, distribution, prescription, or dispensing of a controlled substance. Petitioner requested a hearing by letter dated July 21, 2003.

On July 9, 2003, the case was assigned to me for hearing and decision. On September 25, 2003, I conducted a telephone prehearing conference, the substance of which is memorialized in my order of September 29, 2003. The I.G. represented during the conference that there were no material issues of fact in dispute and urged that a schedule be established for summary judgment briefing before further case development was undertaken. On October 24, 2003, the I.G. filed a motion for summary judgment with supporting brief and I.G. exhibits (I.G. Ex.) 1 through 4. On December 15, 2003, Petitioner filed a response to the I.G.'s motion with exhibits (P. Ex.) 1 through 7. The I.G. filed a reply brief on February 2, 2004, with I.G. Exs. 5, 6 and 7 attached. No objections were made to any of the proffered exhibits. Accordingly, I.G. Exs. 1 through 7 and P. Exs. 1 through 7 are admitted.

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. On August 25, 1999, Petitioner pled guilty to count 46 of a 57 count indictment. Count 46 alleged unlawful distribution of 50 dosage units of Percocet (acetaminophen and oxycodone hydrochloride) on about March 4, 1999. I.G. Exs. 2, 3.

2. On November 15, 1999, Petitioner was found guilty in the United States District Court, Southern District of Alabama, pursuant to his guilty plea, of distributing and dispensing oxycodone in violation of 21 U.S.C. § 841(a)(1) on about March 4, 1999. I.G. Ex. 4.

3. On November 15, 1999, Petitioner was sentenced to confinement for 24 months; 3 years' supervised release; a fine of $50,000; and an assessment of $100.00. Id. at 2-4.

4. On October 27, 1999, while under investigation, Petitioner voluntarily surrendered his certificate of qualification and license to practice medicine in the State of Alabama, and the I.G. was notified of the surrender. I.G. Ex. 1; P. Ex. 1; P. Ex. 2.

5. On January 24, 2003, the Medical Licensure Commission of Alabama reinstated Petitioner's certificate and license to practice medicine. P. Ex. 3.

6. On May 30, 2003, the I.G. notified Petitioner that he was being excluded from participation in Medicare, Medicaid, and all federal health care programs.

7. On July 21, 2003, Petitioner requested a hearing by an administrative law judge (ALJ).

8. On September 24, 2003, the United States Department of Justice, Drug Enforcement Administration, reinstated Petitioner's registration under the Controlled Substances Act. P. Ex. 4.

III. CONCLUSIONS OF LAW

1. Petitioner timely requested a hearing to challenge the I.G.'s notice of exclusion.

2. Petitioner was convicted, in the United States District Court for the Southern District of Alabama, of a felony offense related 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)) and there is a basis for Petitioner's exclusion from participation in Medicare, Medicaid, and all federal health care programs.

3. Pursuant to the Act and the regulations, where there is a basis for a mandatory exclusion under section 1128(a) of the Act, there is an automatic exclusion for a minimum period of five years. Act, section 1128(c)(3)(B); 42 C.F.R. § 1001.102(a).

4. In an exclusion case pursuant to section 1128(a) of the Act, the period of exclusion begins to run on the twentieth day after date of the I.G.'s notice of intent to exclude. 42 C.F.R. § 1001.2002.

5. In an exclusion case pursuant to section 1128(a) of the Act, an ALJ has no discretion to change the effective date of the period of exclusion, as such date is fixed by regulation.

IV. DISCUSSION

A. APPLICABLE LAW

Petitioner's right to a hearing by an ALJ and judicial review of the final action of the Secretary is provided by section 1128(f) of the Act (42 U.S.C. § 1320a-7(f)). Section 1128(f) of the Act provides that an individual or entity subject to exclusion is entitled to notice and hearing to the same extent as provided by section 205(b) of the Act. An oral hearing is contemplated. See section 205(b) of the Act; 42 C.F.R. §§ 1005.2(a), 1005.3(a), 1005.4(a) and (b), 1005.9, 1005.15, and 1005.16. However, an oral hearing is not required where the parties agree to submit the case for my decision on a stipulated record or where both parties waive appearance at an oral hearing and submit the case on documentary evidence and written argument. 42 C.F.R. § 1005.6(b)(4) and (5). Further, no hearing is necessary where all issues may be resolved on a motion for summary judgment as authorized by 42 C.F.R. § 1005.4(b)(12). 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 3 (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).

Pursuant to section 1128(a)(4) of the Act, the Secretary must exclude from participation in the Medicare and Medicaid programs any individual convicted of a felony offense related 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) of the Act shall be for a minimum period of five years.

B. ISSUES

The Secretary of Health and Human Services (Secretary) has, by regulation, limited my scope of review in exclusion cases pursuant to section 1128 of the Act to two issues:

Whether there is a basis for the imposition of the exclusion; and,

Whether the length of the exclusion is unreasonable.

42 C.F.R. § 1001.2007(a)(1).

C. ANALYSIS

Petitioner's request for a hearing was timely filed invoking my jurisdiction. However, the case provides no justiciable controversy within my jurisdiction as limited by the Secretary.

There is no dispute as to any of the facts I have found. There is also no dispute that there is a basis for Petitioner's exclusion and that the minimum period of exclusion is fixed by the Act at five years. The sole issue presented is whether or not I have authority to establish an effective date for Petitioner's period of exclusion earlier than 20 days after the date on the I.G.'s notice of exclusion.

The Act provides that an exclusion pursuant to section 1128(a) "shall be effective at such time and upon such reasonable notice to the public and to the individual or entity excluded as may be specified in regulations . . . ." Act, section 1128(c)(1). Congress granted the Secretary essentially unfettered discretion through section 1128(c)(1) to establish the effective date of exclusion by regulation. The regulation promulgated as 42 C.F.R. § 1001.2002(b) provides that an exclusion is effective 20 days from the date of the notice of exclusion. The regulation does not give an ALJ discretion to change the effective date. Furthermore, 42 C.F.R. § 1005.4(c)(1) specifically provides that an ALJ may not refuse to follow a regulation of the Secretary. ⁽¹⁾ My decision is consistent with prior decisions of the Departmental Appeals Board involving the same issue. See, e.g., Shanti Jain, DAB No. 1398 (1993); David D. DeFries, DAB No. 1317 (1992); Samuel W. Chang, DAB No. 1198 (1990).

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 five years, effective June 19, 2003.

KEITH W. SICKENDICK

Administrative Law Judge

1. I note that no similar restriction is imposed upon the Departmental Appeals Board, to which the Secretary has granted regulatory authority to review ALJ decisions in cases of this type. 42 C.F.R. § 1005.21. I express no opinion on the issue of whether the Board, as the representative of the Secretary, might accord the relief requested by the Petitioner