SUBJECT:

Daniel Joseph Gormley,

Petitioner,

The Inspector General

DECISION

I sustain the determination of the Inspector General (I.G.) to exclude Petitioner, Daniel Joseph Gormley, from participating in the Medicare, Medicaid, and all other federal health care programs, for a period of five years. I base my decision on the documentary evidence, the applicable law and regulations, and the arguments of the parties. I find that 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 Social Security Act(Act).

I. Background

Petitioner is a Registered Nurse who was convicted in the Second Judicial District Court for the State of Colorado, County of Denver, of a felony offense consisting of obtaining a controlled substance by fraud and deceit on September 1, 1999, and September 2, 1999. Petitioner entered a plea of guilty and the Court deferred entry of a judgment on Petitioner's guilty plea, and the imposition of sentence was deferred for two years.

By letter dated February 28, 2001, the I.G. notified Petitioner that he was being excluded from participating in Medicare, Medicaid, and all federal health care programs as defined in § 1128B(f) of the Act for the statutory minimum period of five years. The I.G. informed Petitioner that the action was taken pursuant to § 1128(a)(4), due to his conviction of a criminal offense as defined in § 1128(i), related to the unlawful manufacturing, distribution, prescription, or dispensing of a controlled substance. By letter dated March 15, 2001, Petitioner requested review of the I.G.'s actions, and the case was assigned to me for hearing and decision.

The parties agreed that this matter could be decided based on written arguments and documentary evidence, and that an evidentiary hearing was unnecessary. Each side has made written submissions in support of their respective contentions. The I.G. submitted six proposed exhibits. These have been identified as I.G. Exs. 1-6. Petitioner proposed twenty-two exhibits. These have been identified as P. Exs. 1-22. Additionally, at the request of Petitioner I entertained argument via telephone on October 25, 2001.

II. Issue

1. Whether the I.G. had a basis upon which to exclude Petitioner from participating in the Medicare, Medicaid, and all other federal health care programs.

III. Applicable Law and Regulations

Section 1128(a)(4) of the Act authorizes the Secretary of Health and Human Services (Secretary) to exclude from participation in any federal health care program(as defined in § 1128B(f), any individual convicted under federal or State law, of a criminal offense relating to the manufacture, distribution, prescription, or dispensing of a controlled substance.

The exclusion under § 1128(a)(4) of the Act must be for a minimum period of five years. § 1128(c)(3)(B) of the Act.

Pursuant to 42 C. F. R. § 1001.2007, a person excluded under 1128(a)(4) may file a request for hearing before an Administrative Law Judge.

Section 1128(b) of the Act authorizes the Secretary to exclude individuals from receiving payment for services that would otherwise be reimbursable under Medicare. Medicaid, or other federal health care programs.

IV. Findings and Discussion

The findings of fact and conclusions of law enumerated below are followed by a discussion of each finding.

FFCL 1. Petitioner, was convicted of a criminal offense relating to the manufacture, distribution, prescription, or dispensing of a controlled substance pursuant to § 1128(a)(4) of the Act.

On February 23, 2000, in a two count indictment, Petitioner was indicted for unlawfully, feloniously, and knowingly obtaining and possessing controlled substances by fraud, deceit, misrepresentation and subterfuge. I.G. Ex. 3. Petitioner pleaded guilty to the count of obtaining a controlled substance by fraud and deceit. I. G. Ex 4.

Petitioner's conviction based on his guilty plea, and the courts's acceptance of that plea, constitute a conviction under section 1128(i) of the Act.

FFCL 2. The I.G. was justified in excluding Petitioner from participation in Medicare, Medicaid, and all other federal health care programs.

On February 28, 2001, the I.G. notified Petitioner that he was being excluded from participating in Medicare, Medicaid, and all federal health care programs for the statutory minimum period of 5 years. I.G. Ex. 1. That action was taken under § 1128(a)(4) of the Act due to his conviction as defined in § 1128(i). Once it has been established that an individual was convicted of a felony pursuant to § 1128(a)(4) of the Act, a basis exists for the exclusion of such individual from federally funded health care programs.

FFCL 3. Petitioner's exclusion for a period of five years is mandatory.

Petitioner argues that the five year exclusion imposed by the I.G. is unreasonable. In support of his contention, he argues that:

1. Enforcing the five year exclusion under the circumstances of this case is punitive.

2. The exclusion will prevent Mr. Gormley's participation in the Colorado Nursing Health Program (CHNP)and will destroy his nursing career. See P. Ex. 7.

3. Mr. Gormley's conduct is not likely to occur again.

4. The Office of Inspector General has reinstated nurses excluded under similar circumstances. See P. Ex. 22.

5. There is a critical need for nurses in Colorado.

An exclusion predicated on 42 C. F. R. § 1001.102 due to a conviction of a criminal offense relating to the manufacturing, distribution, prescription, or dispensing of a controlled substance carries a mandatory exclusion of five years. Thus, when the I.G. imposes an exclusion pursuant to subpart B of part 1001 of 42 C.F.R., for the mandatory five year period, the issue of the length of such exclusion is not considered. 42 C.F.R. § 1001.2007(a)(2).

The purpose of § 1128 of the Act is to protect federally funded health care programs and their beneficiaries and recipients from untrustworthy individuals. The Congress of the United States deemed that the remedial goals of the statute would be met by imposing a five year mandatory exclusion in situations such as the one in the case before me. Aggravating factors that justify enlarging the exclusion period may be taken into account, but the five year term may not be shortened. Petitioner admits that he was convicted of a felony offense related to the manufacture, distribution, prescription, or dispensing of a controlled substance. Nonetheless, he contends that no exclusion at all would be appropriate in this case. But neither the law nor regulation provide for such a window of opportunity. In fact, once it has been established that Petitioner was convicted of a felony under § 1128(a)(4) of the Act, I am without discretion to impose an exclusion that is less than the five year mandatory minimum. The statute does not invest me with latitude to take into consideration any of the arguments advanced by Petitioner.

Additionally, Petitioner's assertion that exclusion is inappropriate because his nursing career will be destroyed, and his conduct is not likely to occur again is an argument I may not consider. The main purpose of the statute is to protect the integrity of the program. The United States Congress reasoned that federally funded health care programs should be protected by removing from them untrustworthy individuals. To allow untrustworthy, convicted felons, to continue participating in federally funded health care programs with impunity, would make a mockery of the statute. Hopefully, during the period of exclusion the offender would seek employment that is consistent with the statutory protection provided for beneficiaries of federally funded health care programs, and strive to remain informed of his or her profession. Also, in keeping with the aims of the statute, the excluded individual will use the hiatus from federally funded programs to reform and refrain from engaging again in the offensive conduct that resulted in the exclusion.

The argument that the I.G. has reinstated individuals excluded under circumstances similar to those of Petitioner is inappropriate here. Such relief would have to be sought directly from the I.G. in the exercise of her discretion, and not in this forum. In the case before me I am bound by the applicable statutory and regulatory provisions. I do not have discretion to grant the waiver Petitioner seeks. Furthermore, I do not have the authority to dictate to the I.G. the manner in which she may exercise her discretion.

Finally, the shortage of registered nurses in Colorado is not contemplated by the statute or regulations as grounds for lessening or disregarding the application of the five year mandatory exclusion.

In view of the above, I find that the five year exclusion imposed by the I.G. is not excessive or unreasonable, and is a legitimate remedy consistent with and mandated by § 1128 of the Act. That purpose is to protect federally funded programs and their beneficiaries from untrustworthy individuals.

V. Conclusion

Sections 1128(a)(4) and 1128(c)(3)(B) mandate that Petitioner be excluded from Medicare, Medicaid, and all other federal health care programs for a period of at least five years because he was convicted of a criminal offense relating to the unlawful manufacture, distribution, prescription, or dispensing of a controlled substance.

Jose A. Anglada

Administrative Law Judge