SUBJECT:

Brenda Holbert Frenandez,

Petitioner,

The Inspector General.

DECISION

Brenda Holbert Fernandez (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 her 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 November 30, 2005, the I.G. notified Petitioner of his decision to exclude her from program participation for five years. The letter explained that the exclusion action was taken pursuant to 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. P. Exhibit (P. Ex.) 3. In a letter dated January 23, 2006, Petitioner timely requested review, and the matter has been assigned to me for resolution. I held a telephone prehearing conference on April 24, 2006, at which Petitioner was represented by counsel. At that time, Petitioner conceded that she pled guilty to a drug-related offense - forging prescriptions using a physician's DEA (Drug Enforcement Administration) number in order to obtain drugs. The parties agreed that the issues before me were legal issues for which an in-person hearing is not required and we set a briefing schedule. Order (April 25, 2006).

Pursuant to my scheduling order, the I.G. submitted his Brief on the Merits with four exhibits attached, I.G. Exhibits (I.G. Exs.) 1 - 4. Petitioner filed her response (P. Br.), with six exhibits attached, P. Exs. 1 - 6. ⁽¹⁾ The I.G. submitted a reply brief. There being no objections, I.G. Exs. 1 - 4 and P. Exs. 1 - 6 are admitted into evidence.

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. 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 has also raised a constitutional issue, and argues that the I.G. unreasonably delayed imposing the exclusion. I have no authority to review the constitutional issues, and, as discussed below, may not alter the I.G.'s timing of the exclusion.

III. Discussion

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.

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.

The critical facts of this case are not in dispute. Petitioner was a family nurse practitioner, licensed in Texas, who specialized in radiation oncology. I.G. Ex. 1. On March 30, 2005, she pled guilty in state court to three felony counts of possessing a controlled substance by fraud. Specifically, on March 14, 2004, she "knowingly attempt[ed] to possess or obtain" a controlled substance (dihydrocodeinone) by presenting a forged prescription; on March 24, 2004, she successfully obtained a controlled substance by presenting a forged prescription; and, on January 12, 2004, she presented a fraudulent prescription for the controlled substance over the telephone. I.G. Exs. 3, 4. The Court accepted her plea and issued an order for deferred adjudication, putting her on probation for five years. The Court also imposed a $2500 fine. I.G. Ex. 4.

Section 1128(a)(4) of the Act requires that any individual or entity convicted of a felony criminal offense that occurred after the date of the enactment of the Health Insurance Portability and Accountability Act (HIPAA) (August 21, 1996) "relating to the unlawful manufacture, distribution, prescription, or dispensing of a controlled substance" be excluded from all federal health care programs. ⁽²⁾ Inasmuch as Petitioner unlawfully used forged and fraudulent prescriptions to obtain a controlled substance, there seems no question that her felony conviction is directly "related to" the unlawful prescription or dispensing of a controlled substance. Nevertheless, without citation to any authority, Petitioner argues that section 1128(a)(4) applies only to those who are actually authorized to "manufacture, distribute, prescribe, or dispense a controlled substance." P. Br. at 6. I do not consider this a plausible reading of the law. Nothing in the statute, regulations or elsewhere suggests such interpretation. Exclusions are imposed to protect health care programs from those who have demonstrated themselves to be untrustworthy and a threat to the integrity of federal health care programs. See Manocchio v. Kusserow, 961 F.2d 1539 (11^th Cir. 1992); Douglas Schram, R.Ph., DAB No. 1372 (1992). That Petitioner was not even authorized to prescribe drugs when she forged her prescriptions hardly makes her more trustworthy.

Petitioner also suggests that her exclusion violates her rights to equal protection. To the extent that she is raising a Constitutional issue, I have no authority to review it. Susan Malady, R.N., DAB No. 1816 (2002). Moreover, the logic of Petitioner's argument is seriously flawed. She first makes the obvious point that the I.G. only excludes individuals and entities who actually participate or seek to participate in federal health care programs. But then she complains that the I.G. therefore "in effect, applies this broad statute in an uneven and discriminatory manner." P. Br. at 4. She then seems to reverse herself, and agrees that the statute should not be applied against the "drug kingpin" whose actions "have no bearing on Federal health programs." She then makes a colossal leap in logic to argue that since she - like the hypothetical "drug kingpin" - is not authorized to prescribe or distribute controlled substances, she should not be excluded. P. Br. at 4 - 5. Of course the important distinction between Petitioner and her hypothetical "drug kingpin" is that she actually participates or seeks to participate in federal health care programs, and the "kingpin," presumably, does not. Any such "kingpin" who seeks to participate in a federal health care program must be excluded if he/she has been convicted of a felony related to the "unlawful manufacture, distribution, prescription, or dispensing of a controlled substance."

Finally, Petitioner points out that her nursing license has been reinstated, and the physician from her rehabilitation clinic has determined that she is not chemically dependent and is able to work without restriction. P. Br. at 7. The I.G. is correct in observing that these factors are irrelevant. See Shanti Jain, M.D., DAB No. 1398 (1993) (Action of a state licensing board is "simply irrelevant" to a mandatory exclusion under section 1128).

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

An exclusion under section 1128(a)(4) must be for a minimum mandatory period of five years. As set forth in section 1128(c)(3)(B) of the Act:

Subject to subparagraph (G), in the case of an exclusion under subsection (a), the minimum period of exclusion shall be not less than five years . . . .

When the I.G. imposes an exclusion for the minimum mandatory five-year period, the reasonableness of the length of the exclusion is not an issue. 42 C.F.R. � 1001.2007(a)(2).

C. I have no authority to change the effective date of Petitioner's exclusion.

Petitioner complains that the I.G. unjustly delayed imposing the exclusion until nine months after the Court entered its judgment, "in effect, impermissibly extend[ing] the time Petitioner is precluded from providing care to patient beneficiaries under Medicare, Medicaid and all other Federal health care programs." P. Br. at 8 - 9. However, an administrative law judge is without authority to change the effective date of an exclusion. As a matter of law, an exclusion must become effective 20 days from the date of the I.G.'s notice of exclusion. 42 C.F.R. � 1001.2002. The administrative law judge may not review the timing of the I.G.'s determination to impose an exclusion or alter retroactively the date of the imposition of the exclusion. Tanya A. Chuoke, R.N., DAB No. 1721 (2000); Samuel W. Chang, M.D., DAB No. 1198 (1990); Susan Malady, R.N., DAB CR835 (2001), aff'd on other grounds, DAB No. 1816 (2002); Larry B. Shuster, R.Ph., DAB CR872 (2002); Kathleen E. Talbot, M.D., DAB CR772 (2001).

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. Although, in her exhibit list, Petitioner correctly numbered her exhibits, the documents themselves are tabbed by letter. To conform to Civil Remedies procedures, we have changed Petitioner's lettered exhibits to numbered exhibits.

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.