SUBJECT:

John L. Grant, M.D.,

Petitioner,

The Inspector General

I decide that the Inspector General (I.G.) is authorized to exclude Petitioner, John L. Grant, M.D., from participating in Medicare and other federally funded health care programs, pursuant to section 1128(a)(4) of the Social Security Act (Act). The authority for excluding Petitioner arises from Petitioner's conviction of a felony relating to the unlawful manufacture, distribution, prescription, or dispensing of a controlled substance. I decide also that the length of the exclusion that the I.G. imposed against Petitioner, five years, is not unreasonable, inasmuch as the exclusion is for the minimum period that is required by law for exclusions that are imposed under section 1128(a) of the Act.

I. Background

Petitioner is a physician and a board certified neurological surgeon. On July 31, 2000, the I.G. notified Petitioner that he was being excluded, pursuant to section 1128(a)(4) of the Act, from participating in Medicare and other federally funded health care programs for a term of five years. Petitioner requested a hearing and the case was assigned to me. I held a prehearing conference by telephone at which the parties agreed that the case could be heard and decided based on written submissions. Each side has supplied me with submissions in accordance with the prehearing order that I issued.

The I.G. filed four proposed exhibits (I.G. Ex. 1 - I. G. Ex. 4) as part of its submission in this case. Petitioner filed a series of letters, totaling 19 pages, as part of his submission. Petitioner did not label these letters as exhibits, although it is apparent that he wishes me to consider them in my evaluation of the merits. I am electing to designate all of these letters as a single exhibit (P. Ex. 1). I receive into evidence I.G. Ex. 1 - I.G. Ex. 4 and P. Ex. 1.

II. Issues, findings of fact and conclusions of law

A. Issues

The issues in this case are whether:

1. The I.G. is authorized to exclude Petitioner pursuant to section 1128(a)(4) of the Act, and;

2. An exclusion of five years is unreasonable.

B. Findings of fact and conclusions of law

I make findings of fact and conclusions of law (Findings) to support my decision in this case. I set forth each Finding below as a separately numbered heading. I discuss each Finding in detail.

1. The I.G. is authorized to exclude Petitioner pursuant to section 1128(a)(4) of the Act inasmuch as Petitioner was convicted under federal law of a felony that occurred after August 21, 1996, relating to the unlawful prescription or dispensing of a controlled substance.

The I.G. determined to exclude Petitioner pursuant to section 1128(a)(4) of the Act. This section requires the I.G. to exclude any individual or entity:

that has been convicted for an offense which occurred after the date of the enactment of the Health Insurance Portability and Accountability Act of 1996 [HIPAA], 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.

Act, section 1128(a)(4).

In order for authority to exclude under section 1128(a)(4) to be present, the following must be established:

• An individual or entity must be convicted of a felony under either federal or State law.

• The offense which is the basis for the conviction must have occurred after the date of enactment of HIPAA. I take notice that the enactment date of HIPAA was August 21, 1996. Therefore, the offense must have occurred after August 21, 1996.

• The conviction must relate to the unlawful manufacture, distribution, prescription, or dispensing of a controlled substance.

On August 3, 1999, a criminal information was filed against Petitioner in the United States District Court for the Eastern District of Virginia, Norfolk Division. I.G. Ex. 2 at 1 - 2. The information charged that, on or about July 28, 1997, Petitioner knowingly and intentionally aided and abetted the acquisition and obtaining of a Schedule III controlled substance (Fioricet with Codeine), by misrepresentation, fraud, deception, and subterfuge. Id. at 1. It alleged that Petitioner fraudulently utilized his Drug Enforcement Agency registration to obtain, in the absence of a doctor-patient relationship and without a legitimate medical purpose, controlled substances for another individual who was addicted to and dependent on controlled substances. Id. at 1 - 2. It charged that these acts were in violation of Title 21, section 843(a)(3) and Title 18, section 2, of the United States Code. Id. at 2.

Petitioner agreed to plead guilty to the criminal information. I.G. Ex. 3 at 1. On November 9, 1999, he entered a guilty plea. I.G. Ex. 4 at 1.

The evidence in this case plainly establishes the elements that are necessary for an exclusion under section 1128(a)(4) of the Act. First, Petitioner pled guilty under federal law to a felony. I.G. Ex. 4 at 1. I take notice that the criminal offenses to which Petitioner pled guilty, 21 U.S.C. § 843(a)(3) and 18 U.S.C. § 2, are felonies.

Second, the offenses to which Petitioner pled guilty occurred after August 21, 1996. The criminal information pursuant to which Petitioner entered his guilty plea charged that Petitioner engaged in criminal conduct on or about July 28, 1997.

Third, Petitioner's conviction related to the unlawful prescription or dispensing of a controlled substance. Petitioner was charged with, and pled guilty to, unlawfully using his Drug Enforcement Administration registration to obtain a controlled substance for use by another individual. The acts which were the basis for Petitioner's criminal conviction occurred outside of, and were not a part of, a doctor-patient relationship.

2. An exclusion of five years is reasonable, inasmuch as the I.G. imposed the minimum exclusion that is mandated by law.

An exclusion that is imposed pursuant to any of the subparts of section 1128(a) of the Act is mandatory. The I.G. has no choice but to impose an exclusion where an individual, such as Petitioner, is convicted of an offense within the meaning of section 1128(a)(4). The Act prescribes the minimum period of exclusion that must be imposed for an exclusion imposed under one of the subparts of section 1128(a). That minimum period is five years. Act, section 1128(c)(3)(B).

The I.G. had no choice but to exclude Petitioner for a minimum of five years inasmuch as Petitioner was convicted of a criminal offense within the meaning of section 1128(a)(4). In this case, the I.G. imposed the minimum exclusion period. Therefore, as a matter of law, the five-year exclusion that the I.G. imposed against Petitioner is reasonable.

Petitioner argues that the inevitable effect on him of the exclusion imposed by the I.G. will be to end his career as a neurosurgeon. He asserts that, as a consequence of his exclusion, he will lose his privileges to practice in full service medical centers, thereby cutting him off from access to the type of medical care that he specializes in providing. I do not doubt that the effect on Petitioner of the exclusion may be profound. However, Congress has made a decision that, in the case of an individual who is excluded pursuant to one of the subparts of section 1128(a), the I.G. must impose an exclusion of at least five years. The I.G. has no choice in this case but to impose the minimum exclusion and I am without authority to modify the length of that exclusion regardless of the equities that may exist in Petitioner's case.

I note also that Petitioner has offered a number of letters from professional colleagues that attest to his skills as a surgeon and to his personal qualities. P. Ex. 1. I do not doubt the sincerity of the support that Petitioner's colleagues have given to Petitioner. But, in this case, I have no choice but to sustain the minimum exclusion that the I.G. imposed against him.

Steven T. Kessel

Administrative Law Judge