Tangtang Zhao, DAB CR6594 (2024)

DECISION

Petitioner, Tangtang Zhao, is excluded from participation in Medicare, Medicaid, and all federal health care programs pursuant to section 1128(a)(3) of the Social Security Act (Act) (42 U.S.C. § 1320a-7(a)(3)), effective May 20, 2024.  Petitioner’s exclusion for the minimum period of five years is required by section 1128(c)(3)(B) of the Act (42 U.S.C. § 1320a-7(c)(3)(B)).1

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I.      Background

The Inspector General (IG) notified Petitioner by letter dated April 30, 2024, that he2 was excluded from participation in Medicare, Medicaid, and all federal health care programs for five years.  The IG cited section 1128(a)(3) of the Act as the authority for Petitioner’s exclusion based on his felony conviction in the United States District Court, Northern District of Illinois (district court), of a criminal offense related to fraud, theft, embezzlement, breach of fiduciary responsibility, or other financial misconduct in connection with the delivery of a health care item or service.  IG Exhibit (Ex.) 1.

Petitioner filed a request for hearing on July 2, 2024 (RFH).  The case was docketed and assigned to me on July 8, 2024.  I convened a prehearing conference by telephone on July 23, 2024, the substance of which is memorialized in my Prehearing Conference Order and Schedule for Filing Briefs and Documentary Evidence dated July 23, 2024 (Prehearing Order).

The IG filed a motion for summary judgment and supporting brief on August 20, 2024, with IG Exhibits 1 through 4.  Petitioner filed a response in opposition to the IG’s motion on October 21, 2024 (P. Br.) with no exhibits.  The IG filed a reply brief (IG Reply) and IG Exhibit 5 on November 5, 2024.  Petitioner filed a motion for leave to file a sur-reply along with a sur-reply (P. Reply) on November 25, 2024, which is accepted and considered.   Petitioner has not objected to my consideration of IG Exhibits 1 through 5 and they are admitted as evidence.

II.      Discussion

1. Applicable Law

Section 1128(f) of the Act (42 U.S.C. § 1320a-7(f)) establishes Petitioner’s rights to a hearing by an administrative law judge (ALJ) and judicial review of the final action of the Secretary of Health and Human Services (the Secretary).

Pursuant to section 1128(a)(3) of the Act, the Secretary must exclude from participation in any federal health care program:

Any individual or entity that has been convicted for an offense which occurred after [August 21, 1996], under Federal or State law, in connection with the delivery of a

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health care item or service or with respect to any act or omission in a health care program (other than those specifically described in [section 1128(a)(1)]) operated by or financed in whole or in part by any Federal, State, or local government agency, of a criminal offense consisting of a felony relating to fraud, theft, embezzlement, breach of fiduciary responsibility, or other financial misconduct.

Act § 1128(a)(3); 42 C.F.R. § 1001.101(c).

Pursuant to section 1128(i) of the Act, an individual is convicted of a criminal offense when:  (1) a judgment of conviction has been entered by a federal, state, or local court whether or not an appeal is pending or the record has been expunged; (2) there is a finding of guilt in a court; (3) a plea of guilty or no contest is accepted by a court; or (4) the individual has entered into any arrangement or program where judgment of conviction has been withheld.  Act § 1128(i) (42 U.S.C. § 1320a-7(i)); 42 C.F.R. § 1001.2.

Section 1128(c)(3)(B) of the Act provides that an exclusion imposed under section 1128(a) of the Act will be for no fewer than five years.  Act § 1128(c)(3)(B) (42 U.S.C. § 1320a-7(c)(3)(B)); 42 C.F.R. § 1001.102(a).  The Secretary has published regulations that establish aggravating factors that the IG may consider to extend the period of exclusion beyond the minimum five-year period, as well as mitigating factors that may be considered only if the minimum five‑year period is extended.  42 C.F.R. § 1001.102(b), (c).  The IG imposed the minimum authorized five-year exclusion and aggravating and mitigating factors are not relevant in this case.  IG Ex. 1 at 1.

The standard of proof is a preponderance of the evidence.  42 C.F.R. §§ 1001.2007(c), 1005.15(d).  There may be no collateral attack of the conviction that is the basis for the exclusion on either substantive or procedural grounds.  42 C.F.R. § 1001.2007(d).  Petitioner bears the burden of proof and the burden of persuasion on any affirmative defenses or mitigating factors, and the IG bears the burden on all other issues.  42 C.F.R. § 1005.15(c); Prehearing Order ¶ 4.

2. Issues

The Secretary has by regulation limited my scope of review to two issues:

Whether the IG has a basis for excluding Petitioner from participation in Medicare, Medicaid, and all federal health care programs; and

Whether the length of the period of exclusion is unreasonable.

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42 C.F.R. § 1001.2007(a)(1).

When, as in this case, the IG imposes the minimum authorized five-year exclusion under section 1128(a) of the Act, there is no issue as to whether the period of exclusion is unreasonable.  42 C.F.R. § 1001.2007(a)(2).

3. Findings of Fact, Conclusions of Law, and Analysis

My conclusions of law are set forth in bold followed by the pertinent findings of undisputed fact and analysis. 

1. Petitioner’s request for hearing was timely and I have jurisdiction.

There is no dispute that Petitioner timely requested a hearing and that I have jurisdiction pursuant to section 1128(f) of the Act and 42 C.F.R. pt. 1005.

2. Summary judgment is appropriate in this case.

Pursuant to section 1128(f) of the Act, a person subject to exclusion has a right to reasonable notice and an opportunity for a hearing.  The Secretary has provided by regulation that a sanctioned party has the right to a hearing before an ALJ, and both the sanctioned party and the IG have a right to participate in the hearing.  42 C.F.R. §§ 1005.2, -.3.  Either or both parties may choose to waive appearance at an oral hearing and to submit only documentary evidence and written argument for my consideration.  42 C.F.R. § 1005.6(b)(5).  An ALJ may also resolve a case, in whole or in part, by summary judgment.  42 C.F.R. § 1005.4(b)(12).

Summary judgment is appropriate in an exclusion case when there are no disputed issues of material fact and when the undisputed facts, clear and not subject to conflicting interpretation, demonstrate that one party is entitled to judgment as a matter of law.  Tanya A. Chuoke, R.N., DAB No. 1721 (2000); David A. Barrett, DAB No. 1461 (1994); Robert C. Greenwood, DAB No. 1423 (1993); Thelma Walley, DAB No. 1367 (1992); Catherine L. Dodd, R.N., DAB No. 1345 (1992); John W. Foderick, M.D., DAB No. 1125 (1990).  When the undisputed material facts of a case support summary judgment, there is no need for a full evidentiary hearing, and neither party has the right to one.  Surabhan Ratanasen, M.D., DAB No. 1138 (1990); Foderick, DAB No. 1125.  In opposing a properly supported motion for summary judgment, the nonmovant must set forth specific facts that show there is a genuine dispute of material fact that affects the proponent’s prima facie case or that might establish a defense.  The nonmovant may not rely upon mere allegations or denials to defeat a properly supported motion for summary judgment.  To defeat a properly supported motion for summary judgment and proceed to a trial, the nonmovant must show there is a genuine dispute as to a material fact that requires determination by the fact finder.  On summary judgment, the judge does not

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weigh the evidence or attempt to determine the truth.  Rather, the judge accepts the nonmovant’s evidence as true and draws all permissible inferences in the nonmovant’s favor.  Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-57 (1986).

The IG has moved for summary judgment.  There are no genuine disputes of material fact in this case.  All issues must be resolved against Petitioner as matters of law.  Accordingly, I conclude that summary judgment for the IG is appropriate.

3. Petitioner’s exclusion from participation in Medicare, Medicaid, and all other federal health care programs is required by section 1128(a)(3) of the Act.
   1. Undisputed Facts

The following facts are undisputed.  All factual inferences are drawn in Petitioner’s favor on summary judgment.

Petitioner does not dispute that he was charged by an indictment filed in the district court on August 12, 2021, of 12 counts of theft of government property in violation of 18 U.S.C. § 641.  The indictment charged that Petitioner stole Centers for Disease Control and Prevention (CDC) COVID-19 vaccination record cards on 12 occasions and sold them.  Petitioner does not dispute that on June 23, 2023, he was convicted by a jury in the district court of 12 counts of theft of government property in violation of 18 U.S.C. § 641.  On November 28, 2023, judgment was entered, and Petitioner was sentenced to probation for a year and ordered to pay an assessment, a fine, and costs.  P. Br. at 2-3; RFH at 2; IG Exs. 3, 4.

Petitioner admits that he was employed by Company 1, which operates retail stores and pharmacies in Chicago and across the nation.  Petitioner admits that Company 1 administered COVID-19 vaccines at its locations nationwide.  Petitioner does not deny that pursuant to a requirement of the CDC, Company 1 provided a CDC COVID-19 vaccine record to each person who received a COVID-19 vaccine.  P. Br. at 2-3.

Petitioner attempts to minimize the weight that should be accorded to Petitioner’s criminal indictment (IG Ex. 2), asserting that as an indictment it contains only allegations.  P. Br. at 2-3.  However, Petitioner is mistaken as to the legal weight of the indictment after conviction on the charges alleged in the indictment.  Petitioner was charged by indictment (which Petitioner accurately states included allegations) most of which were likely based on evidence sufficient to establish probable cause.  Fed. R. Crim. Pro. 9(a).  The standard of proof in this proceeding is probable cause, i.e., more likely

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true than not.  42 C.F.R. §§ 1001.2007(c), 1005.15(d).  Evidence that is only sufficient to establish probable cause is insufficient alone to meet the preponderance of the evidence standard.3  However, when the jury convicted Petitioner of the charges in the indictment, the jury was required to have found that the allegations were true beyond a reasonable doubt, which is a far higher standard of proof making the indictment far weightier evidence than the preponderance of the evidence standard applicable in this proceeding.  In re Winship, 397 U.S. 358, 364 (1970) (Due Process Clause “protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.”)

The indictment charged in 12 counts that on 12 days from March 25 through April 11, 2021, Petitioner “did embezzle, steal, purloin, and knowingly convert to his use and the use of another and without authority, did sell, convey, and dispose of” CDC vaccination record cards of an aggregate value exceeding $1,000, in violation of 18 U.S.C. § 641.  IG Ex. 2 at 3.  The indictment also alleged that the federal government contracted to purchase the COVID-19 vaccination record cards which were provided to vaccine distribution locations (such as Company 1 where Petitioner worked) to be issued to those who received a COVID-19 vaccination.  IG Ex. 2 at 2-3; P. Br. at 2-3.  I accept that Petitioner did not plead guilty in the district court and did not admit to the facts alleged in the indictment.  However, the jury convicted Petitioner of the 12 counts and to do so had to find that Petitioner’s guilt of the criminal acts alleged in the indictment were established beyond a reasonable doubt.  IG Ex. 3.  The Secretary has provided by regulation that if an exclusion is based on a criminal conviction after adjudication of the facts, the conviction may not be collaterally attacked before me on either substantive or procedural grounds.  42 C.F.R. § 1001.2007(d).  Petitioner argues that the evidence does not show that he stole the COVID-19 vaccination record cards from his employer.  P. Br. at 8; P. Reply at 1-3.  However, I conclude for reasons discussed in the analysis, that the evidence before me establishes beyond a reasonable doubt Petitioner’s conviction for stealing COVID-19 vaccination record cards from his employer (Company 1), and then selling those cards for his own benefit.  The evidence also establishes beyond a reasonable doubt that the COVID-19 vaccination record cards stolen and sold by Petitioner were procured by and were the property of the federal government provided to

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Petitioner’s employer to be distributed for the purpose of showing that one received the COVID-19 vaccine.

Theft of government property is classified as a felony offense under 18 U.S.C. § 3559(a) because it carries a maximum prison term of 10 years when the total value of government property exceeds $1,000.  18 U.S.C. §§ 641, 3559(a).

2. Analysis

The IG cites section 1128(a)(3) of the Act as the basis for Petitioner’s mandatory exclusion.  The statute requires the Secretary to exclude from participation in any federal health care program any individual or entity if the following elements are satisfied:

(1)  Convicted of a criminal offense under federal or state law;

(2)  The criminal offense occurred after August 21, 1996 (the date of enactment of the Health Insurance Portability and Accountability Act of 1996);

(3)  The criminal offense was committed

(a)  in connection with the delivery of a health care item or service, or

(b)  with respect to any act or omission in a health care program other than Medicare or Medicaid, that is operated or financed by the federal, state, or a local government;

(4)  The criminal offense was a felony; and

(5)  The criminal offense was related to fraud, theft, embezzlement, breach of fiduciary responsibility, or other financial misconduct.

Act § 1128(a)(3); 42 C.F.R. § 1001.101(c).  When the elements of section 1128(a)(3) of the Act are satisfied, Congress mandates exclusion and the Secretary and I have no discretion not to exclude.  I conclude that the elements that trigger mandatory exclusion under section 1128(a)(3) of the Act are satisfied in this case.

Based on the foregoing findings of undisputed facts I conclude there is no dispute that:

• On June 23, 2023, Petitioner was found guilty by a federal jury of all 12 counts of theft of government property in violation of 18 U.S.C. § 641.

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• Petitioner was convicted of a felony because the value of the stolen COVID-19 vaccination records exceeded $1,000 and the maximum term of imprisonment was 10 years.
• On November 28, 2023, the district court entered judgment against Petitioner, finding Petitioner guilty pursuant to the jury verdict and imposing sentence.
• The thefts of COVID-19 vaccination records of which Petitioner was found guilty occurred between about March 25, 2021 and April 11, 2021, which is after August 21, 1996.  Petitioner concedes that he was convicted by the district court of offenses that occurred after August 1996.  P. Br. at 6.
• The findings of guilt and the imposition of judgment by the district court constitute a conviction within the meaning of section 1128(i) of the Act.

These undisputed facts establish the existence of three of the five elements for exclusion pursuant to section 1128(a)(3) of the Act.  However, Petitioner challenges his exclusion on two primary grounds.  Petitioner argues he is not subject to exclusion under section 1128(a)(3) of the Act because he was not convicted of health care fraud – an issue that must be resolved against Petitioner as a matter of law.  Petitioner also disputes the existence of the element of section 1128(a)(3) of the Act that requires that the criminal offenses of which Petitioner was convicted were in connection with the delivery of a health care item or service, or with respect to any act or omission in a health care program other than Medicare or Medicaid, that is operated or financed by the federal, state, or a local government.  Resolving Petitioner’s arguments against him on summary judgment is appropriate as there is no genuine dispute of material fact that requires a trial and Petitioner’s arguments must be resolved against him as matters of law.

Petitioner argues that there is no basis for his exclusion under section 1128(a)(3) of the Act because he was not convicted of a felony relating to health care fraud and his crimes were not committed in connection with the delivery of a health care service.  RFH at 3; P. Br. at 6-7; P. Reply at 1-3.

Petitioner’s assertion that his felony conviction must be directly related to health care fraud is erroneous as a matter of law.  Petitioner misreads section 1128(a)(3) of the Act.  The Act does not require that Petitioner’s conviction be directly related to health care fraud, but rather requires that Petitioner’s criminal offense be related to “fraud, theft, embezzlement, breach of fiduciary responsibility, or other financial misconduct.”  Act § 1128(a)(3) (emphasis added).  The plain language of section 1128(a)(3) of the Act provides that it applies to a conviction of fraud or theft or embezzlement or breach of fiduciary responsibility, or other financial misconduct.  Section 1128(a)(3) of the Act does not require that the enumerated crimes be related to health care fraud as argued by Petitioner.  Petitioner was convicted of theft of government property and the act of selling

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the stolen property certainly falls within the broad scope of other financial misconduct.  Petitioner’s misreading of section 1128(a)(3) of the Act may be explained by the fact that the title of the section is “Felony conviction relating to health care fraud.”  Act § 1128(a)(3); 42 U.S.C. § 1320a-7(a)(3).  The Departmental Appeals Board (Board) has previously taken the position that titles of sections or subsections of regulations or statutes are not controlling, do not add to the operative language of the statute or regulation, and may only be used to aid in resolving an ambiguity in the operative language.  Louis J. Gaefke, D.P.M., DAB No 2554 at 8 (2013); Breton Lee Morgan, M.D., DAB No. 2264 at 8 (2009).  There is no ambiguity in section 1128(a)(3) of the Act that requires resolution.  The title of the section may seem confusing, but the title does not require a conviction of health care fraud; only that the crime of which one is convicted relates to health care fraud.  Section 1128(a)(3) of the Act specifies in its operative language the relationship that must be established, i.e., connection to the delivery of a health care item or service or any act or omission in a health care program in one of the listed programs.  Ellen L. Morand, DAB No. 2436 at 8 (2012) (title of section 1128(a)(3) does not require felony conviction of health care fraud).  Accordingly, I conclude that even though Petitioner was not charged with or convicted of health care fraud, his conviction of theft and selling government property, which the jury verdict shows was established beyond reasonable doubt, triggers the application of section 1128(a)(3) of the Act.

Petitioner also argues that the mandatory exclusion pursuant to section 1128(a)(3) of the Act is not triggered because his conviction does not have the required connection, rational link, or nexus to the delivery of a health care item or service because Petitioner did not bill federal health care programs, and there is no “express allegation or finding” that Petitioner stole the CDC vaccination record cards while he was working in his capacity as a pharmacist at his employer.  P. Br. at 7-8; P. Reply at 1-3.  There is no genuine dispute of facts for trial and the legal issue must be resolved as a matter of law.

Section 1128(a)(3) of the Act does not include any element that requires that the criminal conduct for which one is convicted involved billing Medicare, Medicaid, or any other federal health care program.  Evidence of billing might be evidence of the nexus between the criminal conduct and the delivery of a health care item or service, but billing a health care program is not the only evidence that can show the required nexus.

Petitioner’s argument that the evidence does not show he stole the COVID-19 vaccination cards from his employer or by using or relying upon his status a pharmacist is also without merit as the evidence is not subject to a genuine dispute.  The indictment specifically alleged that Petitioner’s employer, Company 1, administered COVID-19 vaccines and was required by the CDC to provide a vaccination record card to each person who received the COVID-19 vaccine.  IG Ex. 2 at 2-3.  The indictment also alleged that Petitioner was a licensed pharmacist employed by Company 1.  IG Ex. 2 at 1.  The verdict of the jury (IG Ex. 3) established these facts beyond a reasonable doubt.

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Petitioner is correct that the indictment did not specifically allege that Petitioner stole the COVID-19 cards from his employer while working as a pharmacist.  However, I conclude that the facts, which are not subject to dispute before me, that:  (1) Petitioner was a pharmacist working for Company 1; (2) Company 1 had a supply of COVID-19 vaccination record cards from the CDC; (3) the CDC required the distribution of the COVID-19 vaccination record card as evidence of receiving the COVID-19 vaccination, are sufficient to show by a preponderance of the evidence that there was the required nexus between Petitioner’s criminal acts and the delivery of a health care item or service.  Petitioner has presented no affidavit or other evidence to show there is a genuine dispute of material fact as to where or how he obtained the COVID-19 vaccination records cards he was convicted of stealing. 

The terms “related to” and “relating to” in 42 U.S.C. § 1320a-7 simply mean that there must be a nexus or common-sense connection.  Friedman v. Sebelius, 686 F.3d 813, 820 (D.C. Cir. 2012) (describing the phrase “relating to” as “deliberately expansive words,” “the ordinary meaning of [which] is a broad one,” and one that is not subject to “crabbed and formalistic interpretation”) (internal quotes omitted); Quayum v. U.S. Dep’t of Health & Human Servs., 34 F. Supp. 2d 141, 143 (E.D.N.Y. 1998).  An ALJ must examine whether there is a “common sense connection or nexus between the offense and the delivery of an item or service under the program.”  Scott D. Augustine, DAB No. 2043 at 5-6 (2006) (citations omitted).  To determine whether there is such a nexus or common-sense connection, “evidence as to the nature of an offense may be considered,” such as the “facts upon which the conviction was predicated.”  Robert C. Hartnett, DAB No. 2740 at 7 (2016) (quoting Berton Siegel, D.O., DAB No. 1467 at 6-7 (1994)).  The bar to a petitioner collaterally attacking the conviction underlying an exclusion does not preclude review of the facts and circumstances on which the conviction was based.  An ALJ may consider extrinsic evidence to determine the events which formed the basis for the offense.  Narendra M. Patel, M.D., DAB No. 1736 (2000).

My decision is also guided by the decision of the Board in W. Scott Harkonen, M.D., DAB No. 2485 (2012), aff’d, Harkonen v. Sebelius No. C13-0071 PJH, 2013 WL 5734918 (N.D. Cal. Oct. 22, 2013).  In Harkonen, an appellate panel of the Board discussed in detail the elements of section 1128(a)(3) of the Act, which requires that the offense of which one is convicted have been committed in connection with the delivery of a health care item or service.  The Board discussed that in prior cases, it had interpreted the language “in connection with” to require a common-sense connection or nexus, also characterized as a “rational link,” between the criminal offense and the delivery of a health care item or service.  Harkonen, DAB No. 2485 at 7.  The Board noted that in Erik D. DeSimone, R.Ph., DAB No. 1932 (2004), it found the required nexus in a case where a pharmacist, in the guise of performing his professional duties, took controlled substances for his own use.  Harkonen, DAB No. 2485 at 7.  In Kenneth M. Behr, DAB No. 1997 (2005), the Board found the nexus where a pharmacist who had access to drugs due to his position attempted to embezzle those drugs, rejecting the

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argument that the underlying criminal offense must involve actual delivery of a health care item or service.  Harkonen, DAB No. 2485 at 7-8.  In Ellen L. Morand, DAB No. 2436, the Board concluded that the Petitioner’s theft from the evening deposit of the pharmacy that employed her had the requisite nexus considering that the evening deposit included revenue from the sale of health care items and that the Petitioner diverted those funds to her use.  Harkonen, DAB No. 2485 at 8.  The Board summarized its prior holdings to be that “frauds or thefts that are linked in a rational way to the delivery of a health care item or service do fall within the ambit” of section 1128(a)(3).  Harkonen, DAB No. 2485 at 8.  The Board further noted that its interpretation is consistent with the interpretation of similar language found in section 1128(a)(1) of the Act (42 U.S.C. § 1320a-7(a)(1)).  Harkonen, DAB No. 2485 at 9.  The Board pointed out that its interpretation of the language of section 1128(a) “effectuates the twin purposes of section 1128(a):  (1) to protect federal health care programs and their beneficiaries from individuals who have been shown to be untrustworthy; and (2) to deter health care fraud.”  Harkonen, DAB No. 2485 at 9 (citations omitted).  In Harkonen, the Board stated that section 1128(a)(3) does not require proof of an actual impact or effect upon the delivery of a health care item or service, rather the ALJ must consider all the evidence of circumstances underlying the criminal offense, including evidence extrinsic to the criminal proceedings if reliable and credible, to find the rational link between the criminal offense and the delivery of a health care item or service.  Harkonen, DAB No. 2485 at 10.

I conclude that the undisputed facts and facts found by the jury beyond reasonable doubt, which are not subject to dispute in this forum, establish the required connection, rational link, or nexus between Petitioner’s criminal offense and the delivery of a health care item or service.  The CDC procured COVID-19 vaccination record cards and required that Company 1 distribute a record card to individuals who received a vaccine as evidence of vaccination.  Petitioner worked for Company 1 as a pharmacist during the period when he allegedly stole COVID-19 vaccination record cards to resell for his benefit.  Petitioner was convicted of stealing and reselling COVID-19 vaccination records.  Petitioner has presented no evidence to show there is a genuine dispute that he took the CDC’s COVID‑19 vaccination record cards from the supply of such cards the CDC placed in the custody and control of Company 1.  I note that section 1128(a)(3) of the Act includes no element that requires that a theft be from an employer.  Further, section 1128(a) of the Act requires that the Secretary exclude individuals or entities from participating in any federal health care program but does not limit its application to those enrolled in a federal health program to provide health care items or services.  Therefore, whether Petitioner was a pharmacist or stole from his employer are not determinative but are simply evidence that may be considered to determine the existence of the required nexus between the offenses for which Petitioner was convicted and the offenses connection to the delivery of a health care item or service.

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Accordingly, I conclude that the elements necessary to trigger an exclusion pursuant to § 1128(a)(3) of the Act are satisfied and Petitioner's exclusion is required by the Act.

4. The IG had no discretion to exclude Petitioner under the permissive exclusion provisions of section 1128(b) of the Act in lieu of mandatory exclusion under section 1128(a) of the Act.

Petitioner argues that the IG has discretion to impose a permissive exclusion under section 1128(a) of the Act with a shorter period of exclusion.  P. Br. at 5-6.  Petitioner’s argument is contrary to law.  If mandatory exclusion under section 1128(a) of the Act is triggered, Congress gave the IG no discretion to impose a permissive exclusion under section 1128(b) of the Act.  The Board has been consistent that the IG must exclude under section 1128(a) of the Act even if an individual’s conduct could be a basis for permissive exclusion under section 1128(b) of the Act.  Gregory J. Salko, M.D., DAB No. 2437 at 4 (2012) (citing Timothy Wayne Hensley, DAB No. 2044 at 16 (2006) (and cases cited therein)); Craig Richard Wilder, DAB No. 2416 at 7 (2011); Lorna Fay Gardner, DAB No. 1733 at 6 (2000).  Congress required Petitioner’s exclusion pursuant to section 1128(a)(3) of the Act and that requirement is binding upon the Secretary, the IG, the Board, and me.

5. Section 1128(c)(3)(B) of the Act requires a minimum exclusion of five years for any exclusion pursuant to section 1128(a) of the Act.

Petitioner argues that a five-year exclusion is unreasonable and excessive.  Petitioner argues that there are mitigating factors that I should consider and that a five-year exclusion will negatively impact his ability to get a job as a pharmacist.  RFH at 3; P. Br. at 9-10.

I have concluded that a basis exists to exclude Petitioner pursuant to section 1128(a)(3) of the Act.  Therefore, the IG must exclude Petitioner for a minimum period of five years pursuant to section 1128(c)(3)(B) of the Act.  I have no authority to review the reasonableness of the five-year period of exclusion or any discretion to impose a lesser period.  42 C.F.R. §§ 1001.102(a), 1001.2007(a)(2).

6. Petitioner’s exclusion is effective 20 days after the IG’s notice of exclusion.

The regulation specifies that the effective date of Petitioner’s exclusion is 20 days after the date of the IG’s notice of exclusion, and the IG, the Board, and I have no discretion to change the effective date.  42 C.F.R. § 1001.2002(b); Shaikh M. Hasan, M.D., DAB No. 2648 at 9 (2015), aff’d Hasan v. HHS, No. 1-15-cv-4687, ECF No. 27 (E.D.N.Y. July 10, 2017).

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7. No equitable relief is available in this forum.

Petitioner’s arguments that his exclusion should be shortened to one year based on mitigating factors and the adverse impact on his employability as a pharmacist (RFH at 3; P. Br. at 9-10) may be construed to be requests for equitable relief, but I have no authority to grant such relief.  Matthew J. Girardy, DMD, DAB No. 2987 at 7 (2020).  Congress required Petitioner’s exclusion pursuant to section 1128(a)(3) of the Act and that requirement is binding upon the Secretary and me.  I am bound to follow the Act and the Secretary’s regulations.  42 C.F.R. § 1005.4(c)(1).

III.      Conclusion

For the foregoing reasons, Petitioner is excluded from participation in Medicare, Medicaid, and all federal health care programs for five years effective May 20, 2024.