This matter is before me on the Inspector General's (I.G.'s) Motion for Summary Affirmance of the I.G.'s determination to exclude Petitioner pro se, Dana William White, from participation in Medicare, Medicaid, and all other federal health care programs for a period of five years. The I.G.'s Motion and determination to exclude Petitioner are based on the terms of section 1128(a)(1) of the Social Security Act (Act), 42 U.S.C. � 1320a-7(a)(1).

The facts in this case mandate the imposition of the mandatory minimum five-year exclusion, and the settled law of this forum supports the I.G.'s determination to set that period of exclusion to begin on or about April 19, 2006. For those reasons, I grant the I.G.'s Motion for Summary Affirmance.

I. Procedural Background

Dana William White, Petitioner pro se, was the owner and operator of a medical laboratory in the State of Louisiana. The laboratory was certified as a provider to the Louisiana Medicaid program in 1998. Eventually Petitioner and the laboratory, acting with and through others, defrauded and otherwise abused the program; this conduct led on October 26, 2001, to Petitioner's appearance with counsel in the United States District Court for the Middle District of Louisiana. Petitioner's appearance in District Court on October 26, 2001, was the result and culmination of a negotiated settlement of several criminal charges outstanding against him. Petitioner pleaded guilty to a two-count Information. The first count charged him with violating 18 U.S.C. � 371 by conspiring to commit the crime of health care fraud, as defined at 18 U.S.C. � 1347. The second count charged him with violating 18 U.S.C. � 4, misprision of felony, by not reporting additional violations of 18 U.S.C. � 1347 of which he had knowledge. Apparently, in consequence of delays caused by collateral proceedings involving others charged with related misconduct, Petitioner was not sentenced until September 29, 2005.

Sections 1128(a)(1) and 1128(c)(3)(B) of the Act mandate the exclusion, for a period of not less than five years, of "[a]ny individual or entity that has been convicted of a criminal offense related to the delivery of an item or service under Title XVIII or any State health care program." On July 31, 2003, the I.G. notified Petitioner that he was to be excluded pursuant to the terms of section 1128(a)(1) of the Act for a period of five years. Acting pro se, Petitioner sought review of the I.G.'s action by letter of April 12, 2006.

I held a prehearing conference by telephone on May 17, 2006, pursuant to 42 C.F.R. � 1005.6, in order to discuss the issues in the case with the parties, and to discuss the procedures best suited for addressing those issues. The parties agreed that the case could be decided on written submissions, and I established a schedule for the submission of documents and briefs. The results of that conference appear in the Order of May 18, 2006. The briefing cycle established by that Order is complete, and the record in this case closed on July 31, 2006.

The I.G. has submitted eleven exhibits, marked I.G. Exhibits 1-11 (I.G. Exs. 1-11). Petitioner has not objected to them, and they are admitted to the record of this case as designated. Petitioner has submitted one exhibit marked DWW Ex. 1, to which the I.G. has not objected. I have redesignated it Petitioner's Exhibit 1 (P. Ex. 1) and it is admitted with that designation.

II. Issues

The issues before me are limited to those noted at 42 C.F.R. � 1001.2007(a)(1). In the context of this record they are:

The controlling authorities require that both issues be resolved in favor of the I.G.'s position. Section 1128(a)(1) of the Act mandates Petitioner's exclusion. A five-year period of exclusion is the minimum period established by section 1128(c)(3)(B) of the Act, 42 U.S.C. � 1320a-7(c)(3)(B).

III. Controlling Statutes and Regulations

Section 1128(a)(1) of the Act, 42 U.S.C. � 1320a-7(a)(1), requires the mandatory exclusion from participation in Medicare, Medicaid, and all other federal health care programs of any "individual or entity that has been convicted of a criminal offense related to the delivery of an item or service under Title XVIII or under any State health care program." Title XVIII of the Act is the Medicare program. The terms of section 1128(a)(1) are restated somewhat more broadly in regulatory language at 42 C.F.R. � 1001.101(a).

The Act defines "conviction" as including those circumstances "when a judgment of conviction has been entered against the individual . . . by a Federal . . . court," Act, section 1128(i)(1); "when there has been a finding of guilt against the individual . . . by a Federal . . . court," Act, section 1128(i)(2); or "when a plea of guilty . . . by the individual . . . has been accepted by a Federal . . . court," Act, section 1128(i)(3). These definitions are repeated at 42 C.F.R. � 1001.2.

An exclusion based on section 1128(a)(1) is mandatory and the I.G. must impose it for a minimum period of five years. Act, section 1128(c)(3)(B); 42 U.S.C. � 1320a-7(c)(3)(B). The regulatory language of 42 C.F.R. � 1001.102(a) affirms the statutory provision. The minimum mandatory period of exclusion is subject to enhancement on proof of certain carefully-defined aggravating factors set out at 42 C.F.R. �� 1001.102(b)(1) - (9). In this case, the I.G. does not seek to enhance the period of exclusion.

IV. Findings and Conclusions

I find and conclude as follows:

1. On October 26, 2001, in the United States District Court for the Middle District of Louisiana, Petitioner Dana William White pleaded guilty to an Information charging him with one felony violation of 18 U.S.C. � 371, conspiracy to commit health care fraud as defined at 18 U.S.C. � 1347, and one felony violation of 18 U.S.C. � 4, misprision of the felony of health care fraud, as defined at 18 U.S.C. � 1347. I.G. Exs. 3, 4, 5, 6.

2. Final adjudication of guilt, judgment of conviction, and sentencing based on that conviction were imposed on Petitioner in the United States District Court on September 29, 2005. I.G. Ex. 2.

3. On March 31, 2006, the I.G. notified Petitioner that he was to be excluded from participation in Medicare, Medicaid, and all other federal health care programs for a period of five years, based on the authority set out in section 1128(a)(1) of the Act. I.G. Ex. 1.

4. On April 12, 2006, Petitioner perfected his appeal from the I.G.'s action by filing a pro se hearing request.

7. The I.G.'s exclusion of Petitioner for a period of five years is for the minimum period established by law, and is therefore not unreasonable. Section 1128(c)(3)(B) of the Act, 42 U.S.C. � 1320a-7(c)(3)(B).

8. The beginning date of Petitioner's exclusion is established by operation of law as April 19, 2006, the date 20 days from the date of the I.G.'s March 31, 2006 notice letter and I have no authority to change the April 19, 2006 date. Section 1128(c)(1) of the Act, 42 U.S.C. � 1320a-7(c)(1); 42 C.F.R. � 1001.2002(b); Thomas Edward Musial, DAB No. 1991 (2005).

9. There are no disputed issues of material fact and summary affirmance is appropriate in this matter. Tanya A. Chuoke, R.N., DAB No. 1721 (2000); Thelma Walley, DAB No. 1367 (1992); 42 C.F.R. � 1005.4(b)(12).

Once a predicate conviction within the purview of section 1128(a)(1) has been demonstrated, exclusion for the minimum period of five years is mandatory. Mark K. Mileski, DAB No. 1945 (2004); Salvacion Lee, M.D., DAB No. 1850 (2002); Lorna Fay Gardner, DAB No. 1733 (2000); David A. Barrett, DAB No. 1461 (1994).

It is the effective date of this five-year period that Petitioner challenges here. "Simply stated, Petitioner is not challenging 'if,' 'how,' or 'the authority' for issuing the exclusion letter. The question is 'when' shall the exclusion letter issue." Petitioner's Response Brief, at 2. Since the I.G.'s March 31, 2006 exclusion letter -- in common with virtually all other I.G. exclusion letters -- sets the beginning of the exclusion at 20 days from the date of the letter, the date of the I.G.'s letter determines the effective date of the exclusion. I.G. Ex. 1.

Petitioner correctly points out that the span of time between his guilty pleas and the final imposition of sentence based on those pleas amounted to 47 months, and he also quite correctly notes that one of the statutory definitions of "conviction" was satisfied by the acceptance of his guilty pleas on the very first day of that period, October 26, 2001. Section 1128(i)(3). Petitioner asserts that the I.G. should have issued an exclusion letter then and claims October 26, 2001, as the date on which his exclusion should have become effective. What Petitioner does not say directly is this: if his exclusion had begun on the date of that accepted guilty plea, its five-year period would expire approximately two months from today, instead of on April 19, 2010.

Such an argument may have the ring of fairness, but the argument has been made and rejected repeatedly in this forum and before the Departmental Appeals Board (Board). Although the I.G. may exercise no discretion whatsoever in determining whether to impose the exclusion sanction under section 1128(a) of the Act, he exercises unreviewable discretion in determining when to impose the sanction. There is simply no legal authority extant by which the Board or an ALJ can review or alter the timing of the I.G.'s decision to begin the exclusion process, even though significant consequences may flow from the I.G.'s delay in doing so. Thomas Edward Musial, DAB No. 1991 (2005); Douglas Schram, R.Ph., DAB No. 1372 (1992); David D. DeFries, D.C., DAB No. 1317 (1992); Richard G. Philips, D.P.M., DAB No. 1279 (1991); Samuel W. Chang, M.D., DAB No. 1198 (1990); see also Detra Tate Fairley, DAB CR1349 (2005); Thomas Edward Musial, DAB CR1291 (2005); Steven Michael Cook, M.D., DAB CR1234 (2004). The beginning date of Petitioner's exclusion is established by operation of law as April 19, 2006, 20 days from the date of the I.G.'s March 31, 2006 notice letter. I have no authority to change the April 19, 2006 date. Section 1128(c)(1) of the Act, 42 U.S.C. � 1320a-7(c)(1); 42 C.F.R. � 1001.2002(b); Thomas Edward Musial, DAB No. 1991.

VI. Conclusion

For the reasons set out above, the I.G.'s Motion for Summary Affirmance should be, and it is, GRANTED. The I.G.'s exclusion of Petitioner Dana William White from participation in Medicare, Medicaid, and all other federal health care programs for a term of five years, pursuant to the terms of section 1128(a)(1) of the Act, is sustained.