I sustain the determination of the Inspector General (I.G.) to exclude Petitioner, Marc Schneider, D.M.D, 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. It is my finding 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).

This case is before me pursuant to a request for hearing filed by Petitioner on February 23, 2005 (received March 1, 2005). See 42 C.F.R. § 1001.2007.

By letter dated December 30, 2004, the I.G. notified Petitioner that he was being excluded from participating in Medicare, Medicaid, and all federal health care programs as defined in section 1128B(f) of the Act for the statutory minimum period of five years. The I.G. informed Petitioner that the action was taken under section 1128(a)(4), due to his conviction of a criminal offense as defined in section 1128(i) of the Act, related to the unlawful manufacturing, distribution, prescription, or dispensing of a controlled substance.

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 four proposed exhibits with his initial brief and two exhibits with his reply brief. These have been identified as I.G. Exhibits (Exs.) 1-6. Petitioner submitted five proposed exhibits. These have been identified as Petitioner (P.) Exs. 1-5. Petitioner has objected to the admission of I.G. Exs. 1 and 2, specifically, and, generally, to any I.G. exhibit relating to the criminal proceeding that is the basis for this exclusion action. Petitioner contends that pursuant to Kentucky law, Kentucky Revised Statutes (KRS), section 431.076(5), the statute governing the underlying criminal action, the underlying criminal action never occurred. Therefore, Petitioner argues that the documents objected to should be excluded and held for naught. P. Brief (Br.) at 2.

I.G. Ex. 1 is Petitioner's Motion to Enter Guilty Plea, and I.G. Ex. 2 is Kentucky's Offer on the Guilty Plea. I find these documents to be authentic inasmuch as they are what they purport to be. Additionally, they are relevant to the issue of exclusion before me. The remaining four exhibits proffered by the I.G. are equally authentic court documents that have relevance to the issue at hand. Consequently, Petitioner's motion objecting to the I.G.'s exhibits is hereby denied.

I find, as I explain in detail below, that Marc Schneider is a doctor of dental medicine, who was convicted in the State of Kentucky, Jefferson County Circuit Court, of a felony offense related to the unlawful manufacture, distribution, prescription, or dispensing of a controlled substance.

I. Issue

The issue before me is 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.

II. 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 section 1128B(f) of the Act), 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 section 1128(a)(4) of the Act must be for a minimum period of five years. Act, section 1128(c)(3)(B). However, aggravating factors can serve as a basis for lengthening the period of exclusion. 42 C.F.R. § 1001.102(b).

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

III. Findings and Discussion

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

Petitioner is a doctor of dental medicine licensed in the State of Kentucky. On June 12, 2002, the Grand Jurors of the County of Jefferson, State of Kentucky, returned a five count indictment against Petitioner related to the obtaining or attempt to obtain a controlled substance by fraud or deceit. I.G. Ex. 4. On July 7, 2002, Petitioner filed a motion to enter a guilty plea to the above indictment in return for the Commonwealth's recommendation that the court allow him to participate in a pretrial diversion program. I.G. Exs. 1, 2. The court accepted the plea, and on August 22, 2002, entered an Order granting pretrial diversion. I.G. Ex. 5. On December 28, 2004, the court granted an early termination of the period of pretrial diversion, and, based on the finding that Petitioner had successfully complied with the provisions of the agreement, ordered that the charges against him be "dismissed/diverted" pursuant to KRS section 533.258(1). I.G. Ex. 6.

Petitioner contends that inasmuch as the original indictment has been dismissed, he has not been convicted of any crime in any jurisdiction. It is Petitioner's position that an exclusion cannot be sustained under Kentucky's statutory scheme, because the court's finding of eligibility for pretrial diversion cannot be construed as a "conviction" as that term is defined in 42 U.S.C. § 1320a-7(i). More specifically, Petitioner maintains that the Act's definition of a conviction under section 1128(i) does not relate to the present case in that there was no judgment of conviction entered; there was no finding of guilt; nor was a guilty plea accepted by the court. P. Br. at 6, 7. Furthermore, Petitioner argues that in light of the decision in Travers v. Shalala, 20 F.3d 993 (9^th Cir. 1994), his plea does not meet the definition of "conviction" as defined in the Act because the court's order provides for "deferred prosecution" and not "deferred adjudication."

Therefore, Petitioner maintains that inasmuch as Kentucky's pretrial diversion program constitutes a "deferred prosecution," he was at liberty to withdraw his plea and proceed to trial if he so chose. P. Br. at 7, 8.

The threshold question to be decided is whether Petitioner was convicted of a criminal offense relating to the manufacture, distribution, prescription, or dispensing of a controlled substance pursuant to section 1128(a)(4) of the Act. The Act provides that, for purposes of an exclusion under section1128(a)(4), an individual is considered "convicted" of a criminal offense -

Section 1128(i) of the Act.

In this case, Petitioner entered a plea of guilty to five counts of obtaining or attempting to obtain a controlled substance by fraud or deceit. I.G. Ex. 3. Petitioner's argument that his guilty plea was not accepted by the court is unavailing. The court records disclose that Petitioner moved the court for entry of a guilty plea in order to diminish the harshness of the punishment provided in the statute for the offense committed. In his motion, Petitioner sought to persuade the court to allow him to withdraw his previously entered plea of "not guilty" and enter a plea of "guilty." I.G. Ex. 1. I infer that the court's issuance of an Order granting pretrial diversion, based on Petitioner's entry of a guilty plea, indicates acceptance of that plea; Petitioner has presented no evidence to indicate that the court failed to accept Petitioner's guilty plea.

Contrary to Petitioner's contention, once he entered a guilty plea and was granted participation in a pretrial diversion program, he was bound to follow said program to successful completion. He was not at liberty to withdraw his guilty plea unilaterally. In this regard, KRS section 533.256 provides that:

P. Ex. 4, at 4.

Id.

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." Carolyn Westin, DAB No. 1381, at 3 (1993). So, the issue of whether a court's adjudication is or is not a "conviction" under state law is not controlling for purposes of exclusion here. Id. Petitioner must be deemed convicted under the broad language of section 1128(i)(4) of the Act regardless of whether the criminal case has been dismissed or the judgment or conviction or other record relating to criminal conduct has been expunged. When considering what constitutes a conviction for purposes of the I.G.'s exclusion authority, I must look to the federal statute and not to state law or its interpretation. Thus, I am bound by the Act's emphasis on the fact that the individual has been determined to be guilty whether by admission, nolo plea, or verdict, rather than the mechanism employed by the court to impose judgment. Those found guilty of a criminal offense relating to the manufacture, distribution, prescription, or dispensing of a controlled substance pursuant to section 1128(a)(4) of the Act cannot circumvent the federal exclusion provisions by availing themselves of state creative dispositional procedures.

In Tore v. Department of Health and Human Services, CA No. 3:03 CV 7205 (W.D. Ohio 2005), the Court stated as follows:

Id. at 6.

The exclusion provisions of the Act seek to preclude from federal health care programs untrustworthy individuals who pose a risk to those programs. By having engaged in conduct that constituted a felony under Kentucky law regarding the unlawful manufacture, distribution, prescription, or dispensing of a controlled substance, Petitioner placed himself in the category of individuals for whom the exclusion provisions were intended. He is no less of a risk because he entered a pretrial diversion program.

Pursuant to the Act and the applicable regulations, where a basis is found, as here, for a mandatory exclusion under section 1128(a) of the Act, the exclusion must be for a minimum mandatory period of five years. Act, section 1128(c)(3)(B); 42 C.F.R. § 1001.102(a). When the I.G. imposes an exclusion for the mandatory five-year period, the reasonableness of the length of the exclusion is not an issue for my review. 42 C.F.R. § 1001.2007(a)(2).

IV. Conclusion

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