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                              Dennis D. Tedford, M.D., DAB CR5916 (2021)
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Dennis D. Tedford, M.D., DAB CR5916 (2021)








  
  
    

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





Dennis D. Tedford, M.D.,
(OI File No. B-20-40540-9),
Petitioner,

v.

The Inspector General,

Respondent.
Docket No. C-21-350Decision No. CR5916August 9, 2021

        
              
    

      DECISION

Respondent, the Inspector General of the United States Department of Health and Human Services (the IG), excluded Petitioner, Dennis D. Tedford, from participation in Medicare, Medicaid, and all other federal health care programs for 15 years, based on his criminal conviction for an offense related to the unlawful manufacture, distribution, prescription, or dispensing of a controlled substance.  Petitioner seeks review of the length of his exclusion.

As explained herein, I conclude that the IG has a basis to exclude Petitioner but did not establish one of the aggravating factors she relied upon to determine Petitioner’s period of exclusion.  I therefore find the length of the exclusion to be unreasonable and reduce it from 15 years to 12 years.

I.  Background and Procedural History

On March 25, 2019, Petitioner was charged with distributing or dispensing a Schedule IV controlled substance in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(2), an offense to which he subsequently pleaded guilty.  IG Ex. 2 at 1; IG Ex. 3.  On October 18, 2019, while awaiting sentencing, Petitioner entered into an Agreed Order with the Texas Medical Board (Medical Board).  IG Ex. 10.  Under the terms of the Agreed Order, the

Page 2

Medical Board revoked Petitioner’s medical license but stayed the revocation to allow him to practice in a limited manner subject to probationary conditions.  *Id.* at 4-9.

On December 6, 2019, the United States District Court for the Northern District of Texas (District Court) accepted Petitioner’s guilty plea and sentenced him to 60 months’ incarceration.  IG Ex. 8 at 1-2.  On February 21, 2020, the Medical Board notified Petitioner that his medical license had been revoked due to his imprisonment following a felony conviction.  IG Ex. 9 at 1-2.

By letter dated October 30, 2020, the IG notified Petitioner that he was excluded from participating in Medicare, Medicaid, and all federal health care programs under section 1128(a)(4) of the Social Security Act (Act) for a period of 15 years due to his conviction for a criminal offense related to the unlawful manufacture, distribution, prescription, or dispensing of a controlled substance.  IG Ex. 1.  The IG relied on three aggravating factors to extend the term of Petitioner’s exclusion from the mandatory minimum of five years to a period of 15 years.  *Id.* at 2.  Petitioner timely requested a hearing before an administrative law judge (ALJ), and I was designated to hear and decide this case.

I held a pre-hearing telephone conference on March 16, 2021, the substance of which is summarized in my March 16, 2021 Order Summarizing Pre-hearing Conference and Setting Briefing Schedule (Summary Order).  Among other things, I directed the parties to file pre-hearing briefs articulating their respective arguments as well as identifying witnesses and exhibits in support thereof.  Summary Order at 5.

The IG filed a brief (IG Br.) and 10 exhibits (IG Exs. 1-10), while Petitioner filed a brief (P. Br.) with no proposed exhibits.  The IG thereafter filed a statement indicating she would not submit a reply brief in this matter.

II.  Admission of Exhibits and Decision on the Record

In the absence of any objections, I admit into evidence IG Exs. 1-10.

Neither party proposed any witnesses nor indicated that a hearing was necessary.  IG Br. at 10;  P. Br. at 11.  An in-person hearing would serve no purpose and I therefore decide this matter on the record before me.  *See*Civ. Remedies Div. P. § 19(d).

III.  Issues

Petitioner concedes the IG had a basis to exclude him from participation in federal health care programs under section 1128(a)(4) of the Act.  P. Br. at 1-2.  Therefore, the only issue in this case is whether the 15-year period of exclusion selected by the IG is reasonable.  42 C.F.R. § 1001.2007.

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IV.  Applicable Law

Section 1128(f) of the Act (42 U.S.C. § 1320a-7(f)) provides Petitioner with rights to a hearing before an ALJ and judicial review of the final action of the Secretary of Health and Human Services (Secretary).  The right to a hearing before an ALJ is set forth in 42 C.F.R. §§ 1001.2007(a) and 1005.2, while the rights of both the sanctioned party and the IG to participate in a hearing are specified at 42 C.F.R. § 1005.3.

The Secretary must exclude from participation in federal health care programs “[a]ny individual or entity that has been convicted for an offense which occurred after August 21, 1996, under Federal or State law, of a criminal offense consisting of a felony relating to the unlawful manufacture, distribution, prescription, or dispensing of a controlled substance.”  42 U.S.C. § 1320a-7(a)(4); *see also* 42 C.F.R. § 1001.101(d).

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.  42 U.S.C. § 1320a-7(i).  There may be no collateral attack of the conviction that provides the basis of the exclusion.  42 C.F.R. § 1001.2007(d).

Section 1128(c)(3)(B) of the Act (42 U.S.C. § 1320a-7(c)(3)(B)) provides that an exclusion imposed under section 1128(a) of the Act (42 U.S.C. § 1320a-7(a)) shall be for a minimum period of five years.  The exclusion is effective 20 days from the date of the notice of exclusion.  42 C.F.R. § 1001.2002(b).  The period of exclusion may be extended based on the presence of specified aggravating factors.  42 C.F.R. § 1001.102(b)*.*  Mitigating factors are considered as a basis for reducing the period of exclusion only if aggravating factors justify an exclusion of longer than five years.  42 C.F.R. § 1001.102(c).

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; the IG bears the burden on all other issues.  42 C.F.R. § 1005.15(b).

V.  Jurisdiction

Because Petitioner timely requested a hearing, I have jurisdiction to hear and decide this case.  *See* 42 C.F.R. §§ 1001.2007(a)(1)-(2), 1005.2(a); *see also* 42 U.S.C. § 1320a-7(f)(1).

Page 4

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

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

**A. There is a basis for Petitioner’s exclusion pursuant to section 1128(a)(4) of the Act.**

Section 1128(a)(4) mandates that the Secretary exclude from program participation any individual or entity convicted of a felony criminal offense “relating to the unlawful manufacture, distribution, prescription, or dispensing of a controlled substance.”  *See* 42 C.F.R. § 1001.101(d).  As discussed below, the IG has established, by preponderance of the evidence, the elements necessary to exclude Petitioner.

***1. Petitioner was convicted of a criminal offense within the meaning of section 1128(a)(4) for which exclusion was required.***

On March 25, 2019, the United States charged Petitioner with distributing or dispensing a Schedule IV controlled substance by a practitioner, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(2).  IG Ex. 2 at 1.  Petitioner subsequently pleaded guilty.  IG Ex. 7.  On December 6, 2019, the District Court accepted Petitioner’s plea and adjudicated him guilty of the charged offense.  IG Ex. 8.  Petitioner was sentenced to 60 months’ incarceration.  *Id.* at 2.

Petitioner concedes he was convicted of a felony committed after August 21, 1996.  P. Br. at 1.  He further concedes that his conviction related to the unlawful manufacture, distribution, prescription, or dispensing of a controlled substance, and that his exclusion is thus required.  *Id.* at 2.  I therefore need not devote any great deal of time to articulating how the IG met her burden as to these elements.

I find it sufficient to note that on its face, the count to which Petitioner pleaded relates to the unlawful distribution or dispensing of a controlled substance.  IG Ex. 3 at 1; IG Ex. 4 at 1.  The plea agreement made between Petitioner and the United States to resolve the charge against him specifically sets forth stipulations that demonstrate a factual basis for Petitioner’s guilty plea and conviction.  IG Ex. 4 at 1-3.  I therefore have no difficulty concluding that Petitioner was convicted of a criminal offense that occurred after August 21, 1996 that related to the unlawful manufacture, distribution, prescription, or dispensing of a controlled substance, as contemplated by 42 U.S.C. § 1320a-7(a)(4).

**B. Petitioner must be excluded for a minimum of five years.**

Because I have concluded that a basis exists to exclude Petitioner under 42 U.S.C. § 1320a-7(a)(4), Petitioner must be excluded for a minimum period of five years.

Page 5

42 U.S.C. § 1320a-7(c)(3)(B); 42 C.F.R. §§ 1001.102(a), 1001.2007(a)(2).  Petitioner has conceded a five-year exclusion period is appropriate.  P. Br. at 2.  In any event, the IG has no discretion to impose a lesser period of exclusion, and I may not reduce the period of exclusion below five years.

**C. The IG has proven two aggravating factors exist to support an exclusion period beyond the five-year statutory minimum.**

The regulations establish aggravating factors that the IG may consider to lengthen the period of exclusion beyond the five-year minimum for a mandatory exclusion.  42 C.F.R. § 1001.102(b).  In this case, the IG applied three aggravating factors to impose a 15-year term of exclusion:  (1) the acts that resulted in the conviction, or similar acts, were committed over a period of one year or more; (2) Petitioner’s sentence imposed by the District Court included incarceration; and (3) Petitioner was the subject of another adverse action by a State board based on the same set of circumstances that served as the basis for the exclusion.  IG Ex. 1 at 2; 42 C.F.R. §§ 1001.102(b)(2), (b)(5), (b)(9).  As outlined below, I conclude that the IG established the existence of only two of these three aggravating factors.

***1. The IG established the sentence imposed against Petitioner included a period of incarceration.***

The IG applied the aggravating factor found at 42 C.F.R. § 1001.102(b)(5) because Petitioner’s criminal conviction resulted in a sentence of incarceration.  IG Ex. 1 at 2.  There is no dispute that the District Court sentenced Petitioner to a 60-month term of incarceration for the conviction upon which the IG’s exclusion is based.  IG Ex. 8 at 2; P. Br. at 1.  The IG appropriately applied this aggravating factor in determining Petitioner’s period of exclusion.

***2. The IG established that Petitioner was the subject of an adverse action by a State board based on the same set of circumstances that served as the basis for the exclusion.***

The IG applied the aggravating factor found at 42 C.F.R. § 1001.102(b)(9) because the Texas Medical Board revoked Petitioner’s license to practice medicine.  IG Ex. 1 at 2.  Petitioner concedes his medical license was revoked.  P. Br. at 3.  The IG has established the existence of this aggravating factor.

Page 6

***3. The IG has not established the acts that resulted in the conviction, or similar acts, were committed over a period of one year or more.***

The IG applied the aggravating factor found at 42 C.F.R. § 1001.102(b)(2), claiming the acts that resulted in Petitioner’s conviction, or similar acts, were committed over a period of one year or more.  IG Ex. 1 at 2.  The IG summarily argues that Petitioner’s offense of conviction was part of an “overall pattern of prescribing” demonstrated from approximately March 2016 through approximately March 2018.  IG Br. at 5-6; IG Ex. 1 at 2.  Petitioner asserts the IG failed to establish this aggravating factor.  P. Br. at 4, 6-10.  Petitioner is correct.

To conclude that Petitioner’s acts resulting in conviction (or similar acts) were committed over a period of one year or more, the IG ostensibly relies upon the “Factual Resume” accompanying Petitioner’s signed plea agreement, which sets forth the relevant facts stipulated to by Petitioner and the United States to resolve his criminal case.  IG Br. at 5-6, citing IG Ex. 3; IG Ex. 4.  The Factual Resume describes concerns reported to the Drug Enforcement Agency (DEA) about Petitioner’s prescribing habits, analysis of how many and what type of pills he prescribed over given time periods, and a summary of the DEA’s investigation—including witness interviews and expert analysis.  IG Ex. 4.  This comprehensive 15-paragraph summary of the investigation into Petitioner’s prescription practices does not, as the IG claims, “illustrate the length of his conduct.”  IG Br. at 6.

The only act stipulated to by Petitioner, with which he was charged and for which he was convicted, was one instance of knowingly and intentionally distributing or dispensing a Schedule IV controlled substance for other than a legitimate medical purpose on March 13, 2018.  IG Ex. 4 at 1, 4.  The remainder of the stipulations within the Factual Resume detail the course of the investigation that resulted in the charge against Petitioner, but do not explicitly state a length of time beyond one day in 2018 that Petitioner admitted to engaging in criminal activity or other similar acts.

Specifically, the Factual Resume provides that upon receiving a tip from an informant at a local pharmacy in January 2018, the DEA undertook an analysis of prescriptions written by Petitioner from March 2, 2016, to March 2, 2018 and compared them to prescriptions written by other practitioners in the area.  IG Ex. 4 at 2.  The DEA concluded Petitioner was prescribing an unusually high amount of controlled substances (carisoprodol and hydrocodone1
) for a family medicine practitioner.  *Id.*  But the Factual Resume does not identify any prescriptions Petitioner wrote from March 2016 to March 2018 to be unlawful except for one or more instances that occurred on March 13, 2018.  Describing a volume of prescriptions from a two-year period as “unusual” does not

Page 7

establish Petitioner’s criminal acts or similar acts took place over a period of more than one year.  IG Ex. 4 at 2.  One could perhaps infer it, but the IG cannot meet her burden of proof with an inference.

Likewise, the Factual Resume reports that investigators requested an “analysis of Dr. Tedford’s prescribing habits . . . that covered January 3, 2016, to December 29, 2017[.]” *Id.*  This analysis revealed that during this period of approximately two years, Petitioner wrote prescriptions for “539,637 hydrocodone tablets, 96,519 carisoprodol tablets, and 33,955 alprazolam tablets[.]”  *Id.*  But without context, this fact fails to reveal how many of these prescriptions were criminal or even medically improper.  These numbers appear high, but as the Factual Resume notes, Petitioner was only the ninth-highest prescriber of hydrocodone in two counties from March 2016 to 2018.  *Id*.  The Factual Resume memorializes the fact that investigators found Petitioner’s volume of prescriptions from a slightly overlapping but different two-year period “highly unusual,” but without a more specific admission from Petitioner, the volume of his prescriptions is in itself insufficient to conclude he engaged in criminal or similar acts for more than one year.

The Factual Resume goes on to describe information gathered from an individual who worked “from 2014 through 2017” at the medical center that employed Petitioner.  IG Ex. 4 at 3.  That individual relayed observations and concerns about Petitioner’s prescribing habits.  *Id.*  However, the Factual Resume provides no timeframe during which the individual observed Petitioner’s prescribing habits other than the duration of the individual’s employment, the years 2014 through 2017.  *Id.*

It is possible to infer that this individual observed Petitioner engage in criminal or similar acts over a period of more than one year, but it is equally possible that the individual’s observations of Petitioner’s concerning prescription-writing behavior occurred entirely within the year preceding March 13, 2018, the only date on which Petitioner admitted to engaging in criminal conduct.  In assessing the factual basis for the establishment of this aggravating factor, I cannot draw an inference in the IG’s favor from the fact one person thought Petitioner’s prescribing habits to be concerning at some point during their three-year tenure at his place of employment.

Finally, the Factual Resume memorializes the fact that investigators obtained “several patient files” and reviewed Petitioner’s prescribing habits “for the time frame of January 2014 through May 2018.”  *Id.*  An outside medical expert who reviewed 12 of Petitioner’s patient files concluded that in 10 of them, Petitioner had prescribed controlled substances for no legitimate medical purpose.  *Id.*  However, no date is identified for these 10 patient files.  It is possible to infer the expert drew from a four-year cross-section of files to analyze Petitioner’s prescribing practices.  But is equally possible to infer that the expert only looked at recent files within the year preceding March 13, 2018, the only date on which Petitioner admitted to engaging in criminal

Page 8

conduct.  The IG cannot establish the duration of Petitioner’s criminal or other similar acts with mere inference.

In sum, the Factual Resume containing Petitioner’s stipulations only definitively establishes that:  (1) on January 31, 2018, the DEA received a tip about Petitioner’s prescribing habits on or about January 22, 2018; and (2) Petitioner admitted to prescribing controlled substances for a reason other than a legitimate medical purpose in violation of federal law on March 13, 2018.  IG Ex. 4 at 1-2.  Beyond that, the stipulations agreed to by Petitioner simply do not address the nature of his other prescriptions.  The Factual Resume offers no conclusive proof that Petitioner engaged in the relevant offense conduct or similar acts for a period of one year or more.  Neither does any other exhibit submitted by the IG.

Given the foregoing, I find that the IG failed to establish the acts that led to Petitioner’s conviction, or similar acts, occurred over a period of one year or more.  The evidence supplied by the IG is simply silent as to the nature of Petitioner’s acts beyond one date in 2018.  I cannot make findings of fact based on implication and inference.  *See John (Juan) Urquijo*, DAB No. 1735 (2000) at 4-5 (upholding the ALJ’s determination that the IG failed to prove the petitioner’s acts occurred over a period of one year or more where “[a] close reading of the[ IG’s submitted] documents does not unequivocally establish” the time frame, and where the evidence did not “on [its] face definitively establish that Petitioner’s acts committed in furtherance of the conspiracy lasted more than one year”).

**D. No mitigating factors exist in this case upon which I may rely to reduce the exclusion period.**

The IG considered no mitigating factors in determining the length of Petitioner’s exclusion.  IG Ex. 1; IG Br. at 8.  Petitioner, in turn, asserts none. P. Br. at 11.  Accordingly, there are no mitigating factors for me to consider in this case.

**E. A 15-year exclusion period is unreasonable, and I therefore impose a 12-year exclusion period.**

I must uphold the IG’s determination as to the length of exclusion unless it is unreasonable.  42 C.F.R. § 1001.2007(a)(1)(ii).  It is important to note that it is the quality of the aggravating (or mitigating) factors that is most important when considering the length of exclusion, and not the sheer number of aggravating factors that are present in a given case.  As the Secretary of Health and Human Services stated in the preamble to the final rule establishing the exclusion regulations:

We do not intend for the aggravating and mitigating factors to have specific values; rather, these factors must be evaluated based on the circumstances of a particular case.  For example,

Page 9

in one case many aggravating factors may exist, but the subject’s cooperation with the OIG may be so significant that it is appropriate to give that one mitigating factor more weight than all of the aggravating.  Similarly, many mitigating factors may exist in a case, but the acts could have had such a significant physical impact on program beneficiaries that the existence of that one aggravating factor must be given more weight than all of the mitigating.  The weight accorded to each mitigating and aggravating factor cannot be established according to a rigid formula, but must be determined in the context of the particular case at issue.

57 Fed. Reg. 3298 at 3314-15.

Here, Petitioner admitted to dispensing or distributing controlled substances without a legitimate medical need.  IG Ex. 4 at 1.  He was charged and convicted only for conduct which occurred on March 13, 2018.  *Id.*  However, the evidence before me makes clear that his prescribing habits outside that one day were “highly unusual” and raised alarm among individuals who worked with Petitioner, pharmacists, law enforcement agents, and federal prosecutors, who likely would not have subjected Petitioner to criminal sanctions for an isolated incident of improper prescribing.

As a technical matter, while I have found the IG did not establish this conduct occurred for more than one year, the evidence of record nevertheless establishes that Petitioner’s prescribing habits provoked extreme concern and were not isolated to one day in 2018.  The individual who contacted the DEA about Petitioner in January of 2018 did so based on concerns about the high number of prescriptions Petitioner wrote.  *Id.* at 2.  Petitioner’s prescribing habits were sufficiently unusual to disturb local pharmacists and arouse the suspicions of at least one colleague.  *Id.* at 2-3.  A clinical professor of medicine employed by the DEA to review some of Petitioner’s files determined that on at least 10 occasions, he had prescribed controlled substances to his patients without legitimate medical need.  *Id.*at 3.

In the context of assessing the reasonableness of the period of time Petitioner should be excluded from participation in federal health care programs, I note that addiction to prescription opioids and benzodiazepines has caused untold pain to individuals and families throughout our country in recent years.  Texas, where Petitioner’s prescriptions for hydrocodone, alprazolam, and carisoprodol caused such alarm among local pharmacists and others, is no exception.  In 2018 alone, 547 Texans lost their lives due to an overdose involving prescription opioids.  Nat’l Inst. On Drug Abuse, Texas Opioid Summary, *available at* https://www.drugabuse.gov/drug-topics/opioids/opioid-summaries-by-state/texas-opioid-involved-deaths-related-harms (last visited Jul. 30, 2021).  Whether due to greed, carelessness, or a “soft-hearted” nature, Petitioner’s actions

Page 10

no doubt contributed to the abuse of controlled substances in his area and surrounding communities.  IG Ex. 4 at 3.

Beyond the serious nature of Petitioner’s criminal conduct, I have also considered Petitioner’s 60-month sentence of incarceration.  IG Ex. 8 at 2.  This is undoubtedly a substantial sentence.  *Gracia L. Mayard*, DAB No. 2767 at 7 (2017) (characterizing a 54-month sentence of incarceration as a “substantial prison term”); *Jason Hollady, M.D., a/k/a Jason Lynn Hollady*, DAB No. 1855 at 8 (2002) (characterizing even a sentence of nine months as “relatively substantial”).  The lengthy period of incarceration imposed by the District Court demonstrates the severity of Petitioner’s offense, as well as his level of untrustworthiness.  *Eugene Goldman, M.D.*,*a/k/a Yevgeniy Goldman, M.D.*,DAB No. 2635 at 5 (2015).  The Departmental Appeals Board has repeatedly upheld lengthier periods of exclusion in cases where the petitioners received lengthy sentences of incarceration.  *Anthony Joseph Moschetto*, *D.O.*, DAB No. 3030 at 9 (2021) (recounting that the Board has found even “periods of incarceration shorter than [five years], some being significantly shorter, were substantial and supported lengthening the exclusion period.”).

I have also considered the other aggravating factor successfully established by the IG, namely that Petitioner’s Medical Board took action against him based upon his criminal conduct.  IG Ex. 9; IG Ex. 10.  Petitioner now contends the IG weighed this factor too heavily.  P. Br.at 2-3.  He points to the Medical Board’s October 18, 2019 Agreed Order staying the revocation of his license and requiring “only remedial education.”  *Id.*at 3-4.  Petitioner claims the ultimate revocation of his medical license that followed on February 21, 2020 was simply “required by law” due to his subsequent incarceration.  *Id.*at 3.  In Petitioner’s view, the aggravating factor associated with the revocation of his medical license should be accorded less weight because the Medical Board initially contemplated permitting him to continue practicing medicine.  *Id.*at 3-4.

Petitioner’s argument is without merit.  In the first place, he mischaracterizes the October 18, 2019 Agreed Order to require “only remedial education.”  *Id.*at 3.  In fact, the Medical Board also placed Petitioner on probation, publicly reprimanded him for his conduct, and ordered him to provide a copy of the Agreed Order to all Texas hospitals and other health care facilities where he had privileges.  IG Ex. 10 at 4-5.  The Medical Board made clear that the Agreed Order “constitute[d] a restriction on [Petitioner’s] license” and that he “shall not be permitted to supervise or delegate prescriptive authority” to a physician assistant or other practitioner.  *Id.*at 6.  The Medical Board’s reaction to Petitioner’s misconduct demonstrates its seriousness, regardless of whether he was incarcerated or not.

Petitioner also contends less weight should be given to the ultimate revocation of his medical license because it occurred by operation of law as a result of his incarceration.  P. Br. at 3-4.  This claim is without merit.  That revocation of Petitioner’s medical license

Page 11

was required by law does not lessen its significance as an aggravating factor.  *Frank R. Pennington*, DAB No. 1786 at 6 (2001), *aff’d*, *Pennington v. Thompson*, 249 F. Supp. 2d 931 at 935 (W.D. Tenn. 2003) (“The regulations make no distinction between adverse actions taken by government agencies or boards that are mandated by statute or those that are merely allowable.”).

Finally, I must also consider the fact that the IG has not established one of the three aggravating factors it used to impose a 15-year period of exclusion.  A reduction in the exclusion period is appropriate.  *Gary Alan Katz*, DAB No. 1842 at 8 (2002) (“the fact that the I.G. did not establish the aggravating factor at section 1001.102(b)(2) warrants a reduction in the length of the exclusion.”); *Hollady*, DAB No. 1855 at 7.

In considering an appropriate period of exclusion, I note that the quality of the aggravating factors established by the IG which demonstrate the serious nature of Petitioner’s criminal offense are entitled to significant weight.  I also note the absence of mitigating factors.  Finally, I am mindful that “[c]omparisons with other cases are not controlling and of limited utility given that aggravating and mitigating factors ‘must be evaluated based on the circumstances of a particular case’ . . . which can vary widely.”  *Paul D. Goldenheim, M.D., Howard R. Udell, Michael Friedman*, DAB No. 2268 at 29 (2009) (quoting 57 Fed. Reg. 3298 at 3314), *rev’d and remanded, Friedman, et al. v. Sebelius*, 686 F.3d 813 (D.C. Cir. 2012) (upholding the exclusion but remanding for further consideration of the duration).

Nevertheless, it useful to consider the exclusion periods of similarly situated petitioners.  Doing so, I conclude a 12-year period of exclusion reflects a reasonable term in cases that share characteristics similar to this one.  *See Gracia L. Mayard*, DAB No. 2767 (2017) (upholding as reasonable a 13-year exclusion period where the petitioner was convicted of a felony related to the unlawful manufacture, distribution, prescription, or dispensing of a controlled substance and sentenced to 54 months of incarceration, and where the IG established the same two aggravating factors as those established in Petitioner’s case); *Pennington*, DAB No. 1786 (upholding a 10-year exclusion where the petitioner was sentenced to 47 months of incarceration and where the IG established the same two aggravating factors present here).

Accordingly, having carefully considered the specific facts and circumstances of this case, as well as similarly situated Petitioners, I find a 12-year period of exclusion is reasonable, as it appropriately reflects the seriousness of Petitioner’s offense and his lack of trustworthiness to participate in federal health care programs.

VII.  Conclusion

The IG properly excluded Petitioner from participating in Medicare, Medicaid, and other federal health care programs.  The IG did not establish by preponderance of the evidence

Page 12

one of the three aggravating factors it relied upon to determine a period of exclusion. Having carefully considered the remaining aggravating factors, the lack of mitigating factors, and other relevant circumstances unique to this case, I find that Petitioner should be excluded for a period of 12 years.


          /s/
        Bill Thomas

                      Administrative Law Judge
      1. Carisoprodol is the generic name for a muscle relaxer known under the brand name “Soma,” a Schedule IV controlled substance; Hydrocodone is a narcotic pain medication classified under federal law as a Schedule II controlled substance.  IG Ex. 4 at 1. back to note 1 Back to top
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