Stuart Alan Rockwell, D.D.S., DAB CR5633 (2020)

DECISION

The Inspector General (IG) of the United States Department of Health and Human Services excluded Petitioner, Stuart Alan Rockwell, D.D.S., from participation in Medicare, Medicaid, and all other federal health care programs based on Petitioner's conviction for Medicaid fraud, which is a criminal offense related to the delivery of a health care item or service under Medicare or a state health care program.  For the reasons discussed below, I conclude that the IG has a basis for excluding Petitioner, and an exclusion for the minimum period of five years is mandatory pursuant to section 1128(c)(3)(B) of the Social Security Act (Act) (42 U.S.C. § 1320a-7(c)(3)(B)).

I.  Background

In a letter dated November 29, 2019, the IG excluded Petitioner from participation in Medicare, Medicaid, and all federal health care programs as defined in section 1128B(f) of the Act (42 U.S.C. § 1320a-7b(f)) for a minimum period of 5 years, effective 20 days from the date of the letter.  IG Ex. 2 at 1.  The IG explained that Petitioner's exclusion was based on a "conviction as defined in section 1128(i) (42 U.S.C. [§] 1320a-7(i)), in the District Court of Pulaski County, Arkansas, of a criminal offense related to the

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delivery of an item or service under the Medicare or a State health care program, including the performance of management or administrative services relating to the delivery of items or services, under any such program."  IG Ex. 2 at 1.  The IG explained that she had excluded Petitioner pursuant to section 1128(a)(1) of the Act, which mandates the exclusion of an individual who is convicted under federal or state law of a criminal offense related to the delivery of an item or service under Medicare or any state health care program.  42 U.S.C. § 1320a-7(a)(1).  The IG informed Petitioner that the exclusion was for "the minimum statutory period of 5 years."  IG Ex. 2 at 1; see 42 U.S.C. § 1320a-7(c)(3)(B).

On January 30, 2020, the Civil Remedies Division issued my standing pre-hearing order (Pre-Hearing Order), and on February 11, 2020, pursuant to 42 C.F.R. § 1005.6, I presided over a telephonic pre-hearing conference.  That same day, I issued an order in which I, inter alia, established a schedule for the filing of briefs and documentary evidence.

Pursuant to these orders, the IG filed a brief (IG Br.) and four proposed exhibits (IG Exs. 1-4).  Petitioner, through counsel, filed a brief (P. Br.) and four proposed exhibits (P. Exs. 1-4).  Thereafter, the IG filed a reply brief (IG Reply) and one additional proposed exhibit (IG Ex. 5).  Petitioner, with leave, filed a sur-reply (P. Sur-Reply).

Both parties have filed evidentiary objections (P. Objections; IG Reply at 2-5), with the IG objecting to P. Exs. 1 and 4 and Petitioner objecting to IG Exs. 1, 3, and 5.  Petitioner objects to IG Ex. 1, claiming that this document "represents witness testimony."  P. Objections at 1.  Petitioner is mistaken.  IG Ex. 1 is a "case summary" authored by an investigator with the Arkansas Medicaid Fraud Control Unit, beginning with the telephone call that triggered the investigation and concluding on the date the "bench warrant" was issued for the arrest of Petitioner.  IG Ex. 1 at 1-2.  There is no indication that the investigator prepared this document for the purpose of providing testimony in connection with the instant exclusion case.  To the contrary, it is undated, unsigned, and unsworn.  See 42 C.F.R. § 1005.16(b) (allowing an ALJ to admit written testimony); Pre-Hearing Order § 8 (stating that written direct testimony must be in the form of an affidavit or declaration that complies with 28 U.S.C. § 1746).  Although I admit IG Ex. 1 as documentary evidence, I do not rely on IG Ex. 1 in upholding Petitioner's exclusion.

IG Ex. 3 is an affidavit in support of a warrant for the arrest of Petitioner, filed in the District Court of Pulaski County, Arkansas, and signed by both the affiant (the Medicaid Fraud Control Unit investigator) and the District Judge.  The affiant stated that "she has reason to believe that [Petitioner] has committed the offense of violating Ark. Code Ann. §[] 5-55-111, Medicaid Fraud" over a more than four-month period of time by "unlawfully, feloniously and purposely making or causing to be made false statements or representations of material facts in applications for any benefit or payment under the Arkansas Medicaid Program."  IG Ex. 3 at 1 (emphasis in original).  The affidavit

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detailed that Petitioner "made or caused to be made at least 14 illegal claim instances to the Arkansas Medicaid Program for which [he] was paid an aggregate amount of at least $1,025.05 for alleged services that were never provided to this Medicaid recipient . . . ."  IG Ex. 3 at 2.  The District Judge signed the following statement authorizing the issuance of the arrest warrant:  "I hereby find that this sworn affidavit demonstrates reasonable and probable cause for the issuance of a warrant of arrest for the above-named individual for the above-stated offense."  IG Ex. 3 at 3.  This document is not testimony; it is an arrest warrant that was authorized by a state judge.  It is admissible evidence.

Petitioner also objects to the admission of IG Ex. 5, which the IG submitted with her reply.  The IG explained that Petitioner argued for the first time in his brief that he does not have a conviction pursuant to section 1128(i) (42 U.S.C. § 1320a-7(i)) of the Act because he entered into a deferred prosecution agreement.  IG Reply at 6; see P. Br. at 9 ("This agreement is a deferred prosecution—not a deferred adjudication.").  The IG explained that she had "good cause" to submit IG Ex. 5 in order to respond to Petitioner's new allegation.  IG Reply at 5-6.  I granted Petitioner leave to file a sur-reply addressing IG Ex. 5.

The IG had good cause to submit IG Ex. 5 with her reply.  Petitioner, in his request for hearing, listed the four statutory criteria defining a conviction for purposes of an exclusion.  Request for Hearing at 1, citing 42 U.S.C. § 1320a-7(i).  Petitioner also explained that he had not been "convicted" for purposes of an exclusion, stating:

[Petitioner] was not convicted of a program-related crime as such term is defined by the Social Security Act.  Furthermore, the underlying charges against [Petitioner] are subject to dismissal as stated by Pulaski County District Court.  Accordingly, the Inspector General's imposition of a mandatory five-year exclusion against [Petitioner] is in error, and we respectfully request a hearing on this matter so this error can be reversed.

Request for Hearing at 2.  Despite the fact that 42 C.F.R. § 1005.2(d) requires a request for hearing to identify specific issues or findings of fact and conclusions of law being challenged, along with the bases for disagreement, Petitioner, who is represented by the same counsel who handled his criminal matter, did not provide an explanation for why he felt the IG lacked a factual or legal basis to impose an exclusion.  Further, even though Petitioner had listed the aforementioned four criteria for determining whether an individual has been convicted for purposes of an exclusion pursuant to 42 U.S.C. § 1320a-7(i), he did not identify which, if any, of those criteria were not met.  Notably, Petitioner did not contend that he had not been convicted based on having entered into a deferred prosecution agreement with the Attorney General; in fact, Petitioner explained that, inconsistent with a deferred prosecution, "charges" had been filed against him.

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Request for Hearing at 2; see Travers v. Shalala, 20 F.3d 993 at 997 (9th Cir. 1994) ("In a deferred prosecution, it is not simply the judgment, but the initiation of charges altogether, which is withheld.").  Petitioner's request for hearing did not put the IG on notice that he would argue that he did not have a conviction for purposes of section 1128(i) of the Act based on a deferred prosecution agreement.1   Because Petitioner first made this allegation in his brief, the IG had good cause to submit IG Ex. 5, which consists of documentation regarding the prosecutor's offer of a plea agreement, with her reply.

Petitioner argues in his sur-reply that IG Ex. 5 is "in violation of Rules 408 and 410 of the Federal Rules of Evidence."  P. Sur-Reply at 8.  However, the Federal Rules of Evidence are not binding on these proceedings.  42 C.F.R. § 1005.17(b) (discussing that "the ALJ will not be bound by the Federal Rules of Evidence" and that "the ALJ may apply the Federal Rules of Evidence where appropriate . . . .").  Because the ALJ determines the admissibility of evidence, and the Federal Rules of Evidence are not binding on me, I admit IG Ex. 5 because it contains relevant and material evidence.2   42 C.F.R. § 1005.17.  Further, I observe that, pursuant to Rule 408, evidence of conduct or statements made during compromise negotiations is inadmissible "to prove or disprove the validity or amount of a disputed claim or to impeach by a prior inconsistent statement or a contradiction."  Because the IG has not submitted IG Ex. 5 to prove or disprove the validity or amount of a disputed claim or to impeach a prior inconsistent statement or contradiction, Rule 408 is inapplicable to my consideration of whether IG Ex. 5 should be admitted into the evidentiary record.  Likewise, Rule 410, as it pertains to a statement made during plea discussions, is inapplicable because Petitioner entered a guilty plea and that guilty plea has not been withdrawn.  Fed. R. Evid. 410(a)(4).

The IG has submitted objections to P. Exs. 1 and 4.  P. Ex. 1 is Petitioner's written direct testimony in which he largely challenges his conviction and argues that he did not commit Medicaid fraud.  See Pre-Hearing Order § 8 ("Written direct testimony will not be accepted for the purpose of collaterally attacking an underlying conviction, civil judgment imposing liability, determination by another government agency, or any prior determination where the facts were determined and a final decision was made, if the conviction, judgment, or determination is the basis for the exclusion."); see 42 C.F.R. § 1001.2007(d).  Although much of Petitioner's testimony is irrelevant and is an effort to collaterally attack his conviction, I recognize that portions of his testimony are

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nonetheless admissible.  Therefore, I admit Petitioner's written testimony, in its entirety, into the evidentiary record.  See Pre-Hearing Order § 8.

The IG also objects to P. Ex. 4, which are police reports documenting a complaint Petitioner initiated in May 2018.  In the police reports, Petitioner claimed that an employee who had assisted him with the paperwork for his bankruptcy case caused approximately $200,000 in losses by arranging free or reduced-price dental services for his family and friends.  P. Ex. 4 at 3.  Further, Petitioner alleged that the same employee had committed identity theft when he removed patient files from the office.3   P. Ex. 4 at 3.  It appears that Petitioner submitted these reports in an effort to collaterally attack his conviction, but he cannot do so because "the basis for the underlying conviction . . . is not reviewable[,]" and Petitioner "may not collaterally attack it either on substantive or procedural grounds in this appeal."  42 C.F.R. § 1001.2007(d).  Further, the police reports do not provide relevant and material evidence regarding the question of whether Petitioner has been convicted of Medicaid fraud.  Therefore, I sustain the IG's objection to P. Ex. 4.  See, e.g., 42 C.F.R. § 1005.17(c) ("The ALJ must exclude irrelevant or immaterial evidence.").

Therefore, I admit IG Exs. 1-5 and P. Exs. 1-3 into the evidentiary record.

The IG has not submitted the testimony of any witnesses, and therefore there are no witnesses for Petitioner to cross-examine.  Further, the IG has not requested an opportunity to cross-examine Petitioner.  See P. Ex. 1.  As such, a hearing is unnecessary for the purpose of cross-examination of any witnesses.  Pre-Hearing Order § 11.  I will decide this case on the written submissions and documentary evidence.  See Pre-Hearing Order § 11.

II.  Issue

Whether there is a basis for exclusion pursuant to 42 U.S.C. § 1320a-7(a)(1).  See 42 C.F.R. § 1001.2007(a)(1)-(2).

III.  Jurisdiction

I have jurisdiction to adjudicate this case.  42 U.S.C. § 1320a-7(f)(1); 42 C.F.R. § 1005.2.

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IV.  Findings of Fact, Conclusions of Law, and Analysis4

1. Petitioner was convicted of an offense related to the delivery of a health care item or service under a state health care program, which is an offense, pursuant to section 1128(a)(1) of the Act, that subjects him to a mandatory exclusion from all federal health care programs for a minimum of five years.

Section 1128(a)(1) requires a mandatory exclusion from all federal health care programs under certain conditions.5  Section 1128(a)(1) states:

(a) Mandatory exclusion

The Secretary shall exclude the following individuals and entities from participation in any Federal health care program (as defined in section 1128B(f)):

(1) Conviction of program-related crimes--

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.

See 42 U.S.C. § 1320a-7(a)(1).

The IG argues that she properly excluded Petitioner from all federal health care programs based on Petitioner's conviction for an offense related to the delivery of a health care item or service under a state health care program.  IG Br. at 3-4.  The evidence demonstrates that Petitioner was convicted of a criminal offense, for purposes of the Act, that mandates exclusion from all federal health care programs.

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Pursuant to section 1128(i) of the Act, an individual is considered to have been convicted of a criminal offense "when a plea of guilty or nolo contendere by the individual or entity has been accepted by a Federal, State, or local court."6   42 U.S.C. § 1320a-7(i)(3).  Petitioner argues that the court did not accept his guilty plea,7 and therefore, he has not been convicted pursuant to section 1128(i)(3).  However, there is no doubt that the District Judge accepted Petitioner's guilty plea.

On June 4, 2019, Petitioner entered a plea of guilty to the offense of Medicaid fraud.  IG Ex. 4 at 1 (District Judge's Order stating that "[t]he Defendant entered a negotiated plea of guilty to the charge of Medicaid fraud, which is a Class A misdemeanor.").  At that time, the District Judge ordered that Petitioner pay $1,025.05 "in restitution as part of his sentence."  IG Ex. 4.  The District Judge also ordered that Petitioner pay a "mandatory fine in the amount of $600; court costs; a booking fee; and any other fees or costs authorized by statute."  IG Ex. 4 at 1.  It is simply illogical that the District Judge would "sentence" Petitioner to pay restitution and impose a "mandatory" fine and other costs, even though the District Judge purportedly, according to Petitioner, did not accept Petitioner's guilty plea.  To the contrary, Arkansas law recognizes that ordering a defendant to pay restitution, a fine, and other costs is consistent with a court's acceptance of a guilty plea, even if the court has not entered judgment of conviction.  IG Ex. 4 at 1; see Ark. Code Ann. § 16-10-305(a) ("[t]here shall be levied and collected the following court costs from each defendant upon each conviction, each plea of guilty or nolo contendere, or each forfeiture of bond."); Ark. Code Ann. § 12-41-505(b)(1), (2)(b) ("A person convicted of a felony or a Class A misdemeanor shall be assessed a booking and administration fee of twenty dollars ($20.00). . . . If a court suspends imposition of sentence on a defendant or places him or her on probation and does not enter a judgment of conviction, the court shall impose the booking and administrative fee as a cost."); Ark. Code. Ann. § 5-55-108(a), (a)(2) ("Any person who is found guilty of or who pleads guilty or nolo contendere to Medicaid fraud . . . shall pay one (1) of the following fines . . . a fine of an amount of not less than the amount of the monetary loss to the Arkansas Medicaid program and not more than three (3) times the amount of the monetary loss to the Arkansas Medicaid Program."); see also IG Ex. 5 at 2 ("The recommended sentence will be as follows. . . . Mandatory fine $600 to Arkansas general revenue (mandatory 3 times the restitution required by Ark. Code Ann. § 5-55-107(a)(2)(A) based on maximum misdemeanor amount of $200[.])").  Petitioner has not offered support for his claim that,

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in order for his guilty plea to have been accepted, the District Judge's written order must have explicitly documented acceptance of Petitioner's guilty plea.  P. Sur-Reply at 6 ("Here it is clear, the Arkansas Order did not constitute acceptance of the Petitioner's plea, as contemplated by federal law.").  It is unmistakably clear that the District Judge's acceptance of Petitioner's guilty plea was the basis for his imposition of a "sentence" that included restitution, a "mandatory" fine, court costs, and a booking fee.  IG Ex. 4 at 1.  It is plainly apparent that the District Judge accepted the guilty plea; the judge memorialized that Petitioner had "entered" his guilty plea, and made no mention that he did not accept the plea when he imposed financial penalties and costs that Arkansas law prescribes for defendants who have been convicted and/or pleaded guilty.  IG Ex. 4 at 1.

Without providing any evidentiary support, Petitioner argues that the District Judge's order that judgment be reserved for one year "reflects a deferred prosecution agreement" and "made it clear that an entered plea does not equate to an accepted plea."  P. Br. at 6, 11.  Nothing within the four corners of the District Judge's order evidences that he did not accept the guilty plea.  IG Ex. 4 at 1-2.  Nor does the order indicate that the District Judge reserved judgment for one year because he had not accepted the guilty plea that Petitioner had "entered."  IG Ex. 4 at 1.  As previously explained, the District Judge imposed a "sentence" based on this guilty plea.  IG Ex. 4 at 1.  Further, it is not unusual for a state court to reserve or withhold judgment of a conviction; in fact, Congress contemplated such circumstances when it drafted the exclusion legislation.  See 42 U.S.C. § 1320a‑7(i)(4) (mandating exclusion in such an instance, even when a judgment of conviction has been withheld); see also Olandis Moore, DAB No. 2963 at 4-5 (2019) (determining that the petitioner had been "convicted"8 pursuant to section 1128(i) when the judgment of conviction had been withheld and the case was later dismissed); see also Michael S. Rudman, M.D., DAB No. 2171 at 7 (2008), aff'd, Rudman v. Leavitt, 578 F. Supp. 2d 812 (D. Md. 2008) ("[C]ongress's clear purpose in enacting section 1128(i)(4) was to ensure that the [IG] had the authority to exclude persons, like Petitioner, who though not judicially 'convicted' under state law, have pled guilty to criminal offenses . . . and to ensure that efforts to exclude such persons do 'not hinge on state criminal justice policies.'").

Further, Petitioner, in claiming that he has not been convicted pursuant to 1128(i), relies on a half-reading of the Travers decision.  See P. Sur-Reply at 9 (citing Travers in arguing that the IG "provided no precedential proof that Petitioner did not enter into a deferred prosecution agreement, as defined under federal law.").  The Travers decision clearly explained that there are two elements in a deferred prosecution agreement.  Specifically, Travers explained that "[i]n a deferred prosecution, it is not simply the judgment, but the initiation of charges altogether, which is withheld."  Travers, 20 F.3d at 997.  Travers discussed the lower court's observation that "[i]n a deferred prosecution, an

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agreement is entered into between the prosecutor and the defendant[,]"9 and that the distinction between a deferred prosecution and deferred adjudication is that "[a]t the heart of deferred prosecution is an agreement by the prosecutor to delay bringing or prosecuting charges."  Id.,citing Travers v. Sullivan, 801 F. Supp. 394, 401 (E.D. Wash. 1992).  The Circuit Court determined that this distinction was a "rational distinction which is consistent with the language and purposes of the statute."  Id.  The Departmental Appeals Board (DAB) has adopted the analysis of the Travers court, stating:

To the extent that Petitioner's contention could be construed as an argument that she was in a "deferred prosecution" program rather than a "deferred adjudication" program within the meaning of section 1128(i)(4) of the Act, we reject that argument as well.  In Marc Schneider, D.M.D., DAB No. 2007 (2005), we discussed Travers and determined that a "deferred prosecution" requires two elements:  the deferral of the initiation of criminal charges, and the ability of the accused to enter or persist in a plea of not guilty and demand a trial if the agreement with the prosecutor is voided.  DAB No. 2007, at 8 (discussing Travers, 20 F.3d at 997). . . . There was never a delay in the initiation of charges or an agreement that such a delay would occur.  Thus, this case does not even meet the first Travers element of a "deferred prosecution."

Ellen L. Morand, DAB No. 2436 at 6 (2012).  In the instant case, the prosecutor had already brought charges against Petitioner, and Petitioner "entered a negotiated plea of guilty to the charge of Medicaid fraud, which is a Class A misdemeanor."  IG Ex. 4 at 1.  Not only has Petitioner failed to acknowledge that he does not meet the first element of the Travers analysis, but he has not factually demonstrated that he entered into a deferred prosecution agreement that would render 1128(i) inapplicable for purposes of exclusion.10

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Petitioner has submitted written direct testimony in which he attempts to attack the validity of his criminal conviction, claiming that he did not commit Medicaid fraud, but rather, made a "typographical error" in his submission of the Medicaid claims for reimbursement.  P. Ex. 1 at 2.  Petitioner claims that when the Medicaid Fraud Investigation Unit began investigating this matter, an employee he had tasked to resolve this "inadvertent mistake" embezzled money from his practice, rather than resolving this matter as he had expected him to do.  P. Ex. 1 at 3.  Petitioner also claims that he pleaded guilty to the misdemeanor offense of Medicaid fraud only in order to avoid a felony prosecution.  P. Ex. 1 at 4.  Although Petitioner disputes his conviction and the facts underlying his criminal conviction, he may not do so in this forum.  42 C.F.R. § 1001.2007(d).  The DAB has explained the following:

The Board has long held that such "collateral attacks" on the validity of criminal convictions on which exclusions are based are forbidden by regulation.  Section 1001.2007(d) states that when an exclusion "is based on the existence of a criminal conviction or a civil judgment imposing liability by Federal, State or local court" (or "on a determination by another Government agency, or any other prior determination where the facts were adjudicated and a final decision was made"), then "the basis for the underlying conviction, civil judgment or determination is not reviewable and the individual or entity may not collaterally attack it either on substantive or procedural grounds in this appeal[.]" (emphasis added).  See, e.g., Michael J. Vogini, D.O., DAB No. 2584, at 8 (2014) ("Petitioner pled guilty to and was convicted of Count 14 and may not now collaterally attack that conviction"); Lyle Kai, R.Ph., DAB No. 1979, at 5 (2005) ("'the basis for the underlying conviction . . . is not reviewable and the individual . . . may not collaterally attack it . . . .'  42 C.F.R. § 1001.2007(d)"); Peter J. Edmonson, DAB No. 1330, at 4 (1992). . . . A petitioner who "believes

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there are serious flaws" in the state's action on which the exclusion is based thus "must challenge it 'in the appropriate forum.'"  Marvin L. Gibbs, Jr., M.D., [DAB No. 2279]at 10 [2009], citing Leonard Friedman, M.D., DAB No. 1281 (1991).  Per section 1001.2007(d), this is not the appropriate forum for Petitioner to air his grievances about the propriety of his conviction.

Clemenceau Theophilus Acquaye, DAB No. 2745 at 7 (2016).  I reject Petitioner's attempt to collaterally attack his criminal conviction.  Petitioner, with the advice of counsel, entered a guilty plea to the charge of Medicaid fraud that was accepted by the District Judge (IG Ex. 4 at 1); while Petitioner may have avoided a felony prosecution by pleading guilty to a misdemeanor offense of Medicaid fraud (P. Ex. 1 at 4), he cannot avoid the mandatory exclusion that results from his guilty plea to Medicaid fraud and resulting conviction for purposes of an exclusion.  See 42 U.S.C. § 1320a-7(a)(1); see also 42 U.S.C. § 1320a-7(i)(3).

Petitioner limited his arguments to whether he has been convicted pursuant to section 1128(i), and he did not dispute that a conviction for Medicaid fraud is for an offense that  warrants exclusion pursuant to section 1128(a)(1) (42 U.S.C. § 1320a-7(a)(1)).  P. Br. at 11 (Petitioner's argument that because he was not convicted, it is irrelevant whether such a crime is related to the delivery of an item or service under a state health care program).  Therefore, Petitioner waived any argument that his conviction is not a criminal offense that is contemplated by section 1128(a)(1).  42 U.S.C. § 1320a-7(a)(1).  Nonetheless, the evidence establishes that Petitioner was convicted of Medicaid fraud, which is an offense that is related to the delivery of an item or service under the Arkansas Medicaid Program.  IG Ex. 4 at 1;11 P. Ex. 1 at 2 (Petitioner's testimony that his arrest was based on Medicaid fraud charges related to reimbursement claims for a patient's treatment).

Petitioner, a dentist, pleaded guilty to Medicaid fraud relating to his submission of claims for reimbursement to the Arkansas Medicaid program (IG Ex. 4 at 1; P. Ex. 1 at 2), and his crimes therefore involved the performance of management or administrative services relating to the delivery of items or services to that program.  Petitioner's Medicaid fraud is unquestionably a criminal offense related to the delivery of a health care item or service under Medicare or a state health care program, to include the performance of management or administrative services relating to the delivery of items or services in a state Medicaid program.  42 U.S.C. § 1320a-7(a)(1).  Congress, through enactment of the Act, determined that an individual who has been convicted of a criminal offense related to the delivery of an item or service under Medicare or a state health care program must be excluded from federal health care programs for no less than five years, and it afforded

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neither the IG nor an administrative law judge the discretion to impose an exclusion of a shorter duration.  42 U.S.C. § 1320a-7(c)(3)(B).  I cannot shorten the length of the exclusion to a period of less than five years because I do not have authority to "[f]ind invalid or refuse to follow Federal statutes or regulations . . . ."  42 C.F.R. § 1005.4(c)(1).  An exclusion for a minimum period of five years is mandated.

2. The effective date of Petitioner's exclusion is December 19, 2019.

The effective date of the exclusion, December 19, 2019, is 20 days after the date of the IG's November 29, 2019 letter, and is established by regulation (42 C.F.R. § 1001.2002(b)); I am bound by that regulation.  42 C.F.R. § 1005.4(c)(1).

V.  Conclusion

For the foregoing reasons, I affirm the IG's decision to exclude Petitioner from participation in Medicare, Medicaid, and all other federal health care programs for a minimum period of five years, effective December 19, 2019.

1. The IG recognizes that "[d]eferred prosecution, unlike deferred adjudication, does not constitute a conviction as defined by section 1128(i) of the Act, and therefore does not support exclusion."  IG Reply at 6.
• back to note 1
2. Although I admit IG Ex. 5, I note that my sole reference to that exhibit is to its discussion of how the mandatory fine was calculated.  See IG Ex. 5 at 2; see also IG Ex. 4 at 1 (District Judge's order imposing mandatory fine).
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3. Petitioner references this document in the portion of his testimony that collaterally attacks his conviction (P. Ex. 1 at 3), but does not address it in his briefing.
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4. My findings of fact and conclusions of law are set forth in italics and bold font.
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5. While there are slight differences in the wording of section 1128 of the Act and its codification at 42 U.S.C. § 1320a-7, the two authorities are substantively identical and I refer to them interchangeably.  I further note that the Secretary of the Department of Health and Human Services has delegated to the IG the authority "to suspend or exclude certain health care practitioners and providers of health care services from participation in these programs."  48 Fed. Reg. 21,662 (May 13, 1983); see also 42 C.F.R. § 1005.1.
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6. Also relevant, I note that a petitioner has been convicted pursuant to section 1128(i) if he or she "has entered into participation in a first offender, deferred adjudication, or other arrangement or program where judgment of conviction has been withheld."  42 U.S.C. § 1320a-7(i)(4).
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7. Petitioner has not submitted evidence that the court did not accept his guilty plea.  Although Petitioner submitted written direct testimony, he did not claim in his sworn testimony that the judge did not accept his guilty plea.  P. Ex. 1.
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8. I note that the Moore case involved the same court, the Pulaski County District Court.
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9. In my May 19, 2020 order, I specifically asked Petitioner to submit any evidence of such an agreement.  In response, Petitioner did not submit any evidence, stating:  "[d]espite not having a 'formal label' or document evidencing the deferred prosecution agreement, it is applicable nonetheless."  P. Sur-Reply at 1.  The IG claims that IG Ex. 5 demonstrates that Petitioner's claim that he had a deferred prosecution agreement is "specious" and "inaccurate."  IG Reply at 10, 12.  While I decline to discuss the substance of the attorneys' plea discussions, there is nothing in the prosecutor's offer of a plea agreement or the ensuing email communications by counsel to indicate a deferred prosecution agreement.  IG Ex. 5.
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10. Because the first Travers element is not met, I need not address the second Travers element of a deferred prosecution agreement—"if the defendant does not live up to the terms of his agreement with the prosecutor, he may be free to enter or persist in a plea of not guilty and proceed to trial."  Travers, 20 F.3d at 997.  However, I note that Petitioner has not presented any evidence of such an agreement with the prosecutor.  Further, Rule 26.1 of the Arkansas Rules of Criminal Procedure provides that when a defendant has pleaded guilty and that plea has been accepted by a court, but judgment of conviction has not been entered, the defendant can withdraw a plea of guilty if he or she "proves to the satisfaction of the court" that withdrawal of the plea is necessary "to correct a manifest injustice."  None of the listed circumstances would allow a defendant to withdraw a guilty plea and proceed with trial if he or she had failed to comply with the terms of a deferred prosecution agreement (if such an agreement existed).  Ark. R. Crim. P. 26.1.
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11. Petitioner's counsel and the prosecuting attorney both signed the order acknowledging their approval "as to form."  IG Ex. 4 at 2.
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