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                              Ifeanyi Irubor, DAB CR5883 (2021)
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Ifeanyi Irubor, DAB CR5883 (2021)








  
  
    

  
      
Department of Health and Human Services 
    DEPARTMENTAL APPEALS BOARD
          Civil Remedies Division





Ifeanyi Irubor
(O.I. File No. H-20-40069-9)
Petitioner,

v.

Inspector General
U.S. Department of Health and Human Services,
Respondent.
Docket No. C-21-335Decision No. CR5883June 11, 2021

        
              
    

      DECISION

Petitioner, Ifeanyi Irubor, is excluded from participating in Medicare, Medicaid, and all federal health care programs pursuant to section 1128(a)(1) of the Social Security Act (Act) (42 U.S.C. § 1320a-7(a)(1)), effective November 19, 2020.  There is a basis for exclusion.  Petitioner’s exclusion for a minimum of five years is required by section 1128(c)(3)(B) of the Act (42 U.S.C. § 1320a-7(c)(3)(B)).  An additional exclusion of two years, for a total minimum exclusion of seven years,1
 is not unreasonable based upon considerations of two aggravating factors and no mitigating factors.

I.  Background

The Inspector General (IG) of the U.S. Department of Health and Human Services notified Petitioner by letter dated October 30, 2020, that he was excluded from participation in Medicare, Medicaid, and all federal health care program for seven years.

**Page 2**

The IG cited section 1128(a)(1) of the Act as the basis for Petitioner’s exclusion.  The IG stated that the exclusion was based on Petitioner’s conviction in the 338th District Court of Harris County, Texas (state court), of a criminal offense related to the delivery of an item or service under Medicare or a state health care program. The IG notified Petitioner that the IG extended the mandatory five-year exclusion to seven years because Petitioner’s acts that resulted in a conviction caused, or were intended to cause, a financial loss to a government agency or program of $50,000.00 or more, and the acts for which Petitioner was convicted were committed over a period of one year or more.  IG Exhibit (Ex.) 1 at 2.

Petitioner timely requested a hearing on December 31, 2020 (RFH).  On January 8, 2021, the case was assigned to me to hear and decide.  I convened a telephone prehearing conference on January 21, 2021, the substance of which is memorialized in my Prehearing Conference Order and Schedule for Filing Briefs and Documentary Evidence issued on January 25, 2021 (Prehearing Order).

On February 24, 2021, the IG filed a motion for summary judgment and supporting brief (IG Br.) with IG Exs. 1 through 4.  On April 22, 2021, Petitioner filed a response brief (P. Br.) with Petitioner’s exhibits (P. Exs.) 1 through 6.  The IG filed a reply brief on May 5, 2021.  Petitioner did not object to my consideration of IG Exs. 1 through 4 and they are admitted as evidence.  The IG objects to P. Exs. 3, 4, 5 being admitted as evidence.  The IG objects to my consideration of P. Ex. 3 on grounds that it is incomplete.  Petitioner represents that P. Ex. 3 lists 17 Medicaid recipients for whom claims were filed by Petitioner between September 26, 2012 and September 18, 2013 totaling $867,864.26, with a total paid amount of $178,885.79.  Petitioner offers P. Ex. 3 to show that Petitioner’s acts lasted under one year.  P. Br. at 5.  CMS argues that P. Ex. 3 is incomplete as on its face it shows it is a single page from a 12-page document.  The IG also objects to P. Ex. 3 on grounds it is irrelevant and immaterial to the issues before me.  IG Br. at 6.  The IG does not request that Petitioner be ordered to produce the remainder of the document or contend that fairness requires that the entire document should be considered.  Fed. R. Evid. 106.  P. Ex. 3 is also relevant to one of the aggravating factors cited by the IG as a basis for extending the period of exclusion from five to seven years in this case.  The IG objection to P. Ex. 3 is overruled and P. Ex. 3 is admitted as evidence.  P. Ex. 4 is comprised of health insurance claim forms related to one individual.  P. Ex. 5 is a list of transportation services rendered to the same individual as the individual listed on the claim forms in P. Ex. 4.  The IG argues P. Exs. 4 and 5 are irrelevant and immaterial.  IG Br. at 6.  Petitioner argues that P. Exs. 4 and 5 show that the individual listed in the documents received transportation service from Petitioner for which claims were filed during only one month in 2013.  Petitioner’s argument, as I construe it, is that P. Exs. 4 and 5 show that the conduct for which Petitioner was convicted did not last for a year or more, contrary to the aggravating factor cited by the IG.  IG Ex. 1 at 2.  I

**Page 3**

conclude that P. Exs. 4 and 5 are relevant.  The IG objections to P. Exs. 4 and 5 are overruled and both are admitted as evidence.

II.  Discussion

**A.  Applicable Law**

Section 1128(f) of the Act (42 U.S.C. § 1320a-7(f)) establishes Petitioner’s right 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)(1) of the Act, the Secretary must exclude from participation in any federal health care program any individual convicted under federal or state law of a criminal offense related to the delivery of an item or service under Medicare or a state health care program.  A state health care program includes a state Medicaid program.  Act § 1128(h) (42 U.S.C. § 1320a-7(h)).

Pursuant to section 1128(i) of the Act (42 U.S.C. § 1320a-7(i)), an individual is convicted of a criminal offense when:  (1) a judgment of conviction has been entered against him or her in a federal, state, or local court whether an appeal is pending or the record of the conviction is expunged; (2) there is a finding of guilt by 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 is withheld.  The Secretary has promulgated regulations implementing these provisions of the Act.  42 C.F.R. § 1001.101(a), (c).2

Exclusion for a minimum period of five years is mandatory for any individual or entity convicted of a criminal offense for which exclusion is required by section 1128(a) of the Act.  Act § 1128(c)(3)(B) (42 U.S.C. § 1320a-7(c)(3)(B)).  Pursuant to 42 C.F.R § 1001.102(b), an individual’s period of exclusion may be extended based on the presence of specified aggravating factors.  Only if the aggravating factors justify an exclusion of longer than five years, however, are mitigating factors considered as a basis for reducing the period of exclusion to no fewer than five years.  42 C.F.R. § 1001.102(c).

In this proceeding, the standard of proof is a preponderance of the evidence.  42 C.F.R. § 1001.2007(c).  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(b), (c); Prehearing Order ¶ 4.  There may be no collateral attack of the conviction that is the basis for the exclusion.  42 C.F.R. § 1001.2007(d).

**Page 4**

**B.  Issues**

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

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

Whether the length of the exclusion is unreasonable.

42 C.F.R. § 1001.2007(a)(1).

**C.  Findings of Fact, Conclusions of Law, and Analysis**

My conclusions of law are set forth in bold text followed by my findings of fact and analysis.

**1.  Petitioner timely filed his request for hearing, and I have jurisdiction.**

Petitioner timely filed his request for hearing.  I conclude that I have jurisdiction pursuant to section 1128(f) of the Act and 42 C.F.R. pt. 1005.

**2.  Summary judgment is appropriate.**

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 the 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

**Page 5**

opposing a properly supported motion for summary judgment, the nonmovant must allege 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 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).

There are no genuine issues of material fact in dispute in this case.  Petitioner does not dispute that he pleaded guilty to and was convicted of Medicaid fraud.  P. Br. at 1-2. Petitioner does not dispute the aggravating factor cited by the IG that the acts that are the basis of his conviction caused or were intended to cause a financial loss to the government of $50,000 or more.  IG Ex. 3 at 1.  Petitioner argues that the evidence shows that acts for which Petitioner was convicted occurred over less than a year and the IG erred in considering as an aggravating factor that Petitioner’s acts occurred over a period of one year or more.  P. Br. at 4-5.  The issue of whether Petitioner’s acts occurred over a period of one year or more must be resolved against Petitioner as a matter of law.  Petitioner argues that there are genuine disputes of material fact as to a mitigating factor that should be considered in determining the duration of the exclusion.  P. Br. at 4-7.  However, even if I accept Petitioner’s assertions of fact as true for purposes of summary judgment, Petitioner does not aver facts that establish a mitigating factor I am authorized to consider under the regulations discussed hereafter.  Accordingly, I conclude that summary judgment is appropriate.

**3.  Section 1128(a)(1) of the Act requires Petitioner’s exclusion from participation in Medicare, Medicaid, and all other federal health care programs.**

**a.  Facts**

The material facts are undisputed.

On August 22, 2019, Petitioner was charged by a Texas grand jury with a felony offense of Medicaid fraud in the amount of $200,000 or more.  The charge alleged that Petitioner committed the offense of Medicaid fraud beginning on or about January 31, 2012 and continuing through October 31, 2013.  The charge alleged Petitioner engaged in one scheme or continuing course of conduct, filing claims with the Texas Medicaid Program for “individual non-emergency basic life support transport and mileage for recipients who either were not transported by ambulance, were transported with other recipients in the

**Page 6**

same ambulance, were transported to or from an adult day care facility when the transport was billed as a transport to or from a diagnostic or treatment facility, or were not transported at all . . . .”  IG Ex. 2 at 1.

On December 20, 2019, Petitioner entered an agreement to plead guilty to the following charge:

[O]n or about January 31, 2012 [and] continuing through October 31, 2013, [Petitioner] did then and there unlawfully, pursuant to one scheme or continuing course of conduct, knowingly make or cause to be made a false statement or misrepresentation of a material fact, namely, filed or caused to be filed claims to the Texas Medicaid Program for individual non-emergency basic life support transport and mileage for recipients who either were not transported by ambulance, were transported with other recipients in the same ambulance, were transported to or from an adult day care facility when the transport was billed as a transport to or form a diagnostic or treatment facility, or were not transported at all, to permit Defendant to receive a benefit or payment under the Medicaid program that was not authorized or greater than authorized under the Medicaid program, directly or indirectly, the total value of claims for payment as a result of the conduct was two hundred thousand dollars or more.

I.G. Ex. 3 at 1.  Petitioner specifically stated in his plea agreement that he understood the allegations of the charge and that he “confess[ed] that they are true and that the acts alleged . . . were committed on JANUARY 31, 2012 CONTINUING THROUGH OCTOBER 31, 2013.”  IG Ex. 3 at 1 (emphasis in original).

On December 20, 2019, the state court accepted Petitioner’s guilty plea to the first-degree felony of Medicaid fraud in an amount of $200,000 or greater, committed during the period January 31, 2012 through October 31, 2013.  Petitioner was granted deferred adjudication for four years and ordered to pay restitution of $100,000.  IG Ex. 4 at 1.  Pursuant to his plea agreement, the restitution was to be paid to the Texas Health and Human Service Commission – Office of Inspector General.  IG Ex. 3 at 1.

Petitioner also agreed in his plea agreement to cooperate in the investigation of another case and testify truthful if requested to testify.  IG Ex. 3 at 1.

**Page 7**

**b.  Analysis**

The IG cites section 1128(a)(1) of the Act as the basis for Petitioner’s mandatory exclusion. The statute provides in relevant part:

(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.

Act § 1128(a)(1).  Congress has, by the plain language of section 1128(a)(1) of the Act, required the Secretary to exclude from participation in Medicare, Medicaid, and all federal health care programs any individual or entity:  (1) convicted of a criminal offense, whether a misdemeanor or felony; (2) where the offense is related to the delivery of an item or service; and (3) the delivery of the item or service was under Medicare or a state health care program.

Petitioner does not dispute that he was convicted or that his conviction is a basis for exclusion from Medicare, Medicaid, and all federal health care programs.  P. Br. at 1-2; RFH.

The state court accepted Petitioner’s guilty plea to Medicaid fraud and entered a deferred adjudication with four years of community supervision.  IG Ex. 4.  Accordingly, Petitioner was convicted within the meaning of the Act.  Act § 1128(i)(3), (4).  Petitioner cannot collaterally attack his conviction in this proceeding.  42 C.F.R. § 1001.2007(d).  Petitioner is bound by his plea and the action of the state court, and I have no authority to look behind either.

Petitioner does not dispute that the offense of which he was convicted was related to the delivery of an item or service under Texas Medicaid.  There is no dispute that Texas Medicaid is a state health care program under section 1128(h)(1) of the Act.  Petitioner admitted by his guilty plea the facts alleged in the criminal charge that he submitted false claims to the Texas Medicaid program for individual non-emergency basic life support transport services that otherwise should not have been billed or were incorrectly billed.  IG Ex. 3 at 1.  I conclude, based on the facts, that there is a common-sense connection or nexus between Petitioner’s Medicaid fraud and the delivery of an item or service under

**Page 8**

Medicaid, a state health care program.  *Saadite Green*, DAB No. 2940 at 6-7 (2019) (and cases cited therein).

Accordingly, I conclude that all elements that trigger mandatory exclusion pursuant to section 1128(a)(1) of the Act are satisfied and the IG has a basis to exclude Petitioner.  Because I have found that there is a basis for Petitioner’s exclusion pursuant to section 1128(a)(1) of the Act, Congress has mandated his exclusion.  Neither the IG nor I have any discretion not to exclude Petitioner in this case.  I am bound to follow the federal statutes and regulations.  42 C.F.R. § 1005.4(c)(1).

Petitioner requests that his seven-year exclusion be reduced.  P. Br. at 1.  Pursuant to 42 C.F.R. § 1001.2007(a)(1), my authority is limited to reviewing whether the IG has a basis to exclude an individual and whether the period of exclusion is reasonable.

**4.  Pursuant to section 1128(c)(3)(B) of the Act a five-year period of exclusion is mandatory.**

I have concluded that there is a basis to exclude Petitioner pursuant to section 1128(a)(1) 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.  The IG has no discretion to impose a lesser period, and I may not reduce the period of exclusion below five years.

The remaining issue is whether it is unreasonable to extend Petitioner’s exclusion by an additional two years.  My determination of whether the period of exclusion in this case is unreasonable turns on whether:  (1) the IG has proven that there are aggravating factors;  (2) Petitioner has proven that the IG considered an aggravating factor that does not exist or that there are mitigating factors that the IG failed to consider; and (3) the period of exclusion is within a reasonable range.

**5.  Two aggravating factors authorized by 42. C.F.R. § 1001.102(b) are present that justify extending the minimum period of exclusion to seven years.**

The IG notified Petitioner that two aggravating factors are present in this case that justify an exclusion of more than five years:

1.  Petitioner’s acts that resulted in his conviction, or similar acts, caused or were intended to cause financial loss to a state or federal government agency or program or one or more entities of $50,000 or more; and

2.  Petitioner’s acts that resulted in his conviction, or similar acts, were committed over a period of one year or more from about January 2012 to about October 2013.

**Page 9**

IG Ex. 1 at 2.  I conclude that each aggravating factor is established by undisputed facts.

The grand jury charged that Petitioner received $200,000 or more from Texas Medicaid through his fraudulent claims.  Petitioner pleaded guilty to the charge thereby admitting the allegation and his guilty plea was accepted.  Petitioner may not challenge, and I may not review, his conviction or sentence in this proceeding.  42 C.F.R. § 1001.2007(d).  The state court ordered that Petitioner pay restitution of $100,000.  IG Ex. 4 at 1.  Pursuant to Petitioner’s plea agreement, he agreed that the restitution was to be paid to the Texas Health and Human Service Commission – Office of Inspector General.  The Departmental Appeals Board (Board) has held that an amount ordered as restitution constitutes proof of the amount of financial loss to a government program.  *Jeremy Robinson*, DAB No. 1905 at 11 (2004); *Craig Richard Wilder*, DAB No. 2416 at 9 (2011); *Juan de Leon, Jr.*, DAB No. 2533 at 5 (2013); *Laura Leyva*, DAB No. 2704 at 9 (2016).  Petitioner does not dispute that the amount of restitution that he was ordered to pay exceeds the $50,000 loss that triggers the aggravating factor considered by the IG under 42 C.F.R. § 1001.102(b)(1).

Petitioner was charged for Medicaid fraud that occurred from on or about January 31, 2012 through on or about October 31, 2013.  IG Ex. 2 at 1.  Petitioner admitted by his guilty plea that his criminal acts occurred from on or about January 31, 2012 through on or about October 31, 2013.  Petitioner’s guilty plea was accepted by the state court.  Petitioner cannot now challenge, and I may not review, his conviction for his Medicaid fraud occurring from on about January 31, 2012 through October 31, 2013.  42 C.F.R. § 1001.2007(d).  I conclude that Petitioner is bound by his plea agreement and the admissions of fact he made before the state court in order to gain the benefit of his plea bargain.

Petitioner disputes that the acts for which he was convicted were committed for over a year.  P. Br.; RFH.  However, Petitioner cannot attack the state court determination entered based on Petitioner’s plea of guilty.  The regulation states the aggravating factor as follows:  “[t]he acts that resulted in the conviction, or similar acts, were committed over a period of one year or more.”  42 C.F.R. § 1001.102(b)(2).  The regulation is clear that the entire period of criminal activity is to be considered an aggravating factor.  The regulation does not permit by its language excluding periods when the person to be excluded was not actively engaged in a criminal act as Petitioner argues.  The Board has previously discussed the purpose of the aggravating factor under 42 C.F.R. § 1001.102(b)(2), saying that it reflects “the Secretary’s recognition that an individual whose lapse in integrity occurs over a period of one or more years poses a far greater threat to federal health care programs and beneficiaries than an individual ‘whose lapse in integrity is short-lived.’”  *Hussein Awada*, DAB No. 2788 at 8 (2017) (quoting *Donald A. Burstein*, Ph.D., DAB No. 1865 at 8 (2003)).  Petitioner’s acts were not short-lived and

**Page 10**

were committed over a period of more than a year.  The facts Petitioner admitted by his guilty plea establish the existence of the second aggravating factor considered by the IG under 42 C.F.R. § 1001.102(b)(2).

**6.  Petitioner has not met his burden to establish by a preponderance of the evidence a mitigating factor authorized by 42 C.F.R. § 1001.102(c).**

If any of the aggravating factors authorized by 42 C.F.R. § 1001.102(b) justify an exclusion of longer than five years, as they do in this case, then mitigating factors may be considered as a basis for reducing the period of exclusion to no less than five years.  42 C.F.R. § 1001.102(c).  The IG did not list, and therefore did not consider, any mitigating factors in deciding to extend Petitioner’s exclusion to seven years.  IG Ex. 1. at 2.  The only authorized mitigating factors that I may consider are listed in 42 C.F.R. § 1001.102(c):

(1)  In the case of an exclusion under § 1001.101(a), whether the individual or entity was convicted of three or fewer misdemeanor offenses and the entire amount of financial loss (both actual loss and intended loss) to Medicare or any other Federal, State, or local governmental health care program due to the acts that resulted in the conviction, and similar acts, is less than $5,000;

(2)  The record in the criminal proceeding, including sentencing documents, demonstrates that the court determined that the individual had a mental, emotional or physical condition before or during the commission of the offense that reduced that individual’s culpability; or

(3)  The individual’s or entity’s cooperation with Federal or State officials resulted in –

(i)  Others being convicted or excluded from Medicare, Medicaid and all other Federal health care programs,

(ii)  Additional cases being investigated or reports being issued by the appropriate law enforcement agency identifying program vulnerabilities or weaknesses, or

**Page 11**

(iii)  The imposition against anyone of a civil money penalty or assessment under part 1003 of this chapter.

Petitioner has the burden to prove by a preponderance of the evidence that there is a mitigating factor for me to consider.  42 C.F.R. § 1005.15(c); Prehearing Order ¶ 4.

Petitioner argues that I should consider as a mitigating factor his cooperation with a state Medicaid fraud investigation and the prosecution of another individual.  Petitioner argues that as part of his plea agreement he cooperated with state fraud investigators in two separate Medicaid fraud cases.  Petitioner admits that no convictions have occurred because the cases have been repeatedly postponed due to COVID-19.  P. Br. at 5-6; P. Ex. 6.

I accept Petitioner’s representations that he cooperated as true for purposes of summary judgment.  I have examined Petitioner’s arguments and the evidence offered in support of those arguments.  It is not disputed that Petitioner cooperated with state officials and gave them information.  However, Petitioner’s cooperation as described is not sufficient to establish the mitigating factor recognized by 42 C.F.R. § 1001.102(c)(3).

In *Stacey R. Gale*, the Board elaborated on petitioner’s burden related to proving a mitigating factor under 42 C.F.R. § 1001.102(c)(3):

Thus, it is Petitioner’s responsibility to locate and present evidence to substantiate the existence of any alleged mitigating factor in her case.  In alleging the existence of the factor at 42 C.F.R. § 1001.102(c)(3)(ii), Petitioner must demonstrate that she cooperated with a state or federal official and this cooperation resulted in “[a]dditional cases being investigated.”  As is apparent from the foregoing, the I.G. does not have the responsibility to prove the non-existence of the mitigating factor under the regulation.  For example, the I.G. does not have the responsibility to substantiate under the regulation that even though Petitioner may have cooperated with a state or federal official, that cooperation did not result in additional cases being investigated.  It is entirely Petitioner’s burden to demonstrate that her cooperation with a state or federal official resulted in additional cases being investigated.

DAB No. 1941 at 9 (2004).  The Board went on the explain that mere cooperation is not enough.  The Board held that the regulation requires that a petitioner show that law

**Page 12**

enforcement officials actually exercised discretion and began a new investigation or issued a report as a result of his or her cooperation rather than simply providing investigators additional information related to an ongoing case.  *Stacey R. Gale*, DAB No. 1941 at 14, 17.  The Board’s interpretation of the regulation is consistent with the plain language of 42 C.F.R. § 1001.102(c)(3).  The regulation clearly requires that a petitioner must show that his or her cooperation had one of the results listed in the regulation, i.e., another individual was convicted or excluded; additional cases were investigated; reports identifying program vulnerabilities or weaknesses were issued by the appropriate law enforcement agency; or the imposition of a civil money penalty.  42 C.F.R. § 1001.102(c)(3).  The fact that one gave a statement or testified in a pending case does not trigger the mitigating factor absent one of the results specified in the regulation.

I conclude that Petitioner has failed to show that there is a mitigating factor that I am permitted to consider under 42 C.F.R. § 1001.102(c), even if I accept his allegations as true for purposes of summary judgment.  Accordingly, this case presents no mitigating factors the IG failed to consider.

**7.  Exclusion for seven years is not unreasonable in this case.**

The regulation states that the ALJ must determine whether the length of exclusion is “unreasonable.”  42 C.F.R. § 1001.2007(a)(1).  The Board, however, has made clear that the role of the ALJ in exclusion cases is to conduct a de novo review of the facts related to the basis for the exclusion and the existence of aggravating and mitigating factors identified at 42 C.F.R. § 1001.102 and to determine whether the period of exclusion imposed by the IG falls within a reasonable range.  *Juan de Leon, Jr.*, DAB No. 2533 at 4-5; *Craig Richard Wilder*, DAB No. 2416 at 8; *Joann Fletcher Cash*, DAB No. 1725 at 17 n.6 (2000).  The Board has explained that, in determining whether a period of exclusion is “unreasonable,” the ALJ is to consider whether such period falls “within a reasonable range.”  *Joann Fletcher Cash*, DAB No. 1725 at 17 n.6.  The Board cautions that whether the ALJ thinks the period of exclusion is too long or too short is not the issue.  The ALJ may not substitute his or her judgment for that of the IG and may only change the period of exclusion in limited circumstances.

In *John (Juan) Urquijo*, DAB No. 1735 (2000), the Board made clear that, if the IG considers an aggravating factor to extend the period of exclusion and that factor is not later shown to exist on appeal, or if the IG fails to consider a mitigating factor that is shown to exist, then the ALJ may make a decision as to the appropriate extension of the period of exclusion beyond the minimum.  In *Gary Alan Katz, R.Ph.*, DAB No. 1842 (2002), the Board suggested that when it is found that an aggravating factor considered by the IG is not proved before the ALJ, then some downward adjustment of the period of exclusion should be expected absent some circumstances that indicate no

**Page 13**

such adjustment is appropriate.  Thus, the Board has by these various prior decisions significantly limited my authority under the applicable regulation to judge the reasonableness of the period of exclusion.

Based on my de novo review, I conclude that a basis for the exclusion exists and that the undisputed evidence established the two aggravating factors the IG considered in determining to impose the seven-year exclusion.  Petitioner has not presented evidence that shows a genuine dispute that the IG failed to consider a mitigating factor authorized by 42 C.F.R. § 1001.102(c) or considered an aggravating factor that did not exist.  I conclude that a period of exclusion of seven years is in a reasonable range and not unreasonable considering the existence of two aggravating factors and no mitigating factors.  No basis exists for me to reassess the period of exclusion.

III. Conclusion

For the foregoing reasons, Petitioner is excluded from participation in Medicare, Medicaid, and all other federal health care programs for a minimum period of seven years, effective November 19, 2020.


          /s/
        Keith W. Sickendick

                      Administrative Law Judge
      1. Pursuant to 42 C.F.R § 1001.3001, Petitioner may apply for reinstatement only after the period of exclusion expires.  Reinstatement is not automatic upon completion of the minimum period of exclusion. back to note 1
                      2. Citations are to the 2019 revision of the Code of Federal Regulations (C.F.R.), unless otherwise stated. back to note 2 Back to top
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