SUBJECT:

Carl Jeffrey Boyette

Petitioner,

The Inspector General

DECISION

Carl Jeffrey Boyette (Petitioner) appeals the decision of the Inspector General (I.G.), made pursuant to section 1128(a)(4) of the Social Security Act (Act), to exclude him 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 July 31, 2003, the I.G. notified Petitioner of her decision to exclude him from program participation for five years. The letter explained that exclusion was mandatory under 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. By letter dated September 30, 2003, Petitioner requested review, and the matter has been assigned to me for resolution. I held a telephone prehearing conference on November 21, 2003, at which Petitioner participated without benefit of counsel. He has acknowledged that he is aware of his right to counsel. The parties raised no disputes of material fact that would require an in-person hearing, and they agreed to a briefing schedule. Order and Schedule for Filing Briefs and Documentary Evidence (December 1, 2003).

Pursuant to my scheduling order, on December 19, 2003, the I.G. submitted her Motion for Summary Affirmance and Brief in Support. Petitioner's response was due January 26, 2004. When I did not receive any submissions from the Petitioner, staff contacted him, inquiring as to whether he had filed or planned to file a brief and/or supporting documents. Petitioner indicated that he had forgotten about the filing deadlines, did not intend to abandon his appeal, and would send a written request for an extension of time in which to file. See Order (February 26, 2004).

On February 17, 2004, Petitioner submitted a letter, dated February 9, 2004, apologizing for missing the January 26 filing deadline. In that letter Petitioner did not suggest that he intended to abandon his appeal, but he neither requested an extension of time in which to file his submissions, nor indicated that the record could be closed. In an order dated February 26, 2004, I advised the parties that on March 10, 2004, I would close the record and issue a decision based on the written submissions contained in the record at that time. Petitioner made no additional submissions.

Attached to the I.G.'s brief are I.G. Exhibits (I.G. Exs.) 1 - 6. There being no objections, I.G. Exs. 1 - 6 are admitted into evidence. In reaching this decision, I have also considered the arguments contained in Petitioner's hearing request and his February 9, 2004 letter.

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. This depends on whether he was "convicted" of a felony within the meaning of section 1128(a)(4) of the Act.

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 suggests that his constitutional rights have been violated. However, as discussed below, I have no authority to review those issues.

III. Discussion

The critical facts of this case are not in dispute. Petitioner was a licensed vocational nurse in the State of California. On August 20, 2001, he pled guilty to five felony counts of obtaining a controlled substance by fraud, in violation of section 11173(a) of the State Health and Safety Code. I.G. Exs. 2, 5. At the same time, the state court found him eligible for "deferred entry of judgment" under Chapter 2.5, Title 6, Part 2 of the California Penal Code. The Court deferred entry of judgment, referred Petitioner to a drug counseling and education program, and ordered Petitioner to comply with other conditions. I.G. Ex. 6. Petitioner successfully complied with the conditions imposed by the Court, and, on May 7, 2003, the case against him was dismissed. I.G. Ex. 3.

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. ⁽¹⁾

Section 1128(a)(4) of the Act requires that any individual or entity "convicted of a felony criminal offense relating to the unlawful manufacture, distribution, prescription, or dispensing of a controlled substance" be excluded from all federal health care programs. ⁽²⁾ An individual is considered to have been "convicted" within the meaning of the statute if his plea of guilty or nolo contendere "has been accepted by a Federal, State, or local court" (Act, section 1128(i)(3)), or he 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)(4).

Petitioner points to the court documents indicating that the charges against him were dismissed and argues that he is not a convicted felon "in the eyes of the Superior Court of California." February 9, 2004 letter. While that may be true, he nevertheless is considered to have been "convicted" for section 1128(a)(4) purposes. Congress broadly defined the term "conviction" in order "to ensure that exclusions from federally funded health programs would not hinge on state criminal justice policies," so the fact that a court's adjudication is not a "conviction" under state law is not controlling. Carolyn Westin, DAB No. 1381, at 6 (1993). In Westin, the petitioner participated in a deferred adjudication program, and her plea of nolo contendere was dismissed. She argued, accurately, that she had not been convicted under state law. Nevertheless, the Departmental Appeals Board (Board) recognized that the federal statute controls, and concluded that her participation in the deferred adjudication program fell within the statutory definition of a conviction. See Travers v. Shalala, 20 F.3d 993, 996 (9^th Cir. 1994). Here, Petitioner signed a document stating "I plead guilty," to five felony charges, which the court accepted, and Petitioner subsequently participated in a deferred adjudication program. These are exactly the processes described in section 1128(i)(3) and (4). I.G. Ex. 2, at 1, 3, 5. See Victoria Winterhalter, DAB CR1114 (2003); Handel J. Roberts, M.D., DAB CR911 (2002).

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

Petitioner also urges me to consider certain mitigating factors. By all accounts he was very cooperative and fully complied with all of the terms and conditions of his drug diversion program, and has lived an exemplary life since the time of his conviction. However, the regulations allow consideration of specified mitigating factors only if the existence of aggravating factors justifies an exclusion period longer than five years. 42 C.F.R. § 1001.102(c). Section 1128(c)(3)(B) of the Act sets the minimum exclusion period at five years. See 42 C.F.R. § 1001.102(a).

C. I do not have authority to review Petitioner's other claims.

Petitioner suggests that his exclusion violates his Constitutional rights. Section 1001.2007(a)(1) of 42 C.F.R. grants me the authority to review exclusions of individuals from participation in Medicare and all other federal health care programs. However, that regulation provides that I may only review whether a basis for the exclusion exists and whether the length of the exclusion is unreasonable. My review is further limited by section 1005.4(c)(1) which provides that in reviewing exclusions, civil money penalties, and assessments, an ALJ "does not have the authority to . . . [f]ind invalid or refuse to follow Federal statutes or regulations or secretarial delegations of authority." 42 C.F.R. § 1005.4(c)(1). Therefore, under this express limitation, I lack authority to find unconstitutional any provision of the statute or regulations.

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. 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.

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.