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                              Sunita Kain Kumar, CR6324 (2023)
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Sunita Kain Kumar, CR6324 (2023)








  
  
    

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





Sunita Kain Kumar
(OI File No.: 2-13-40114-9),
Petitioner,

v.

The Inspector General.
Docket No. C-23-249Decision No. CR6324July 27, 2023

        
              
    

      **DECISION**

The Inspector General (IG) of the United States Department of Health and Human Services excluded Sunita Kain Kumar (Petitioner), from participation in Medicare, Medicaid, and all other federal health care programs for 16 years pursuant to section 1128(a)(1) of the Social Security Act (Act) (42 U.S.C. § 1320a-7(a)(1)).  For the reasons discussed below, I conclude that the IG has a basis to exclude Petitioner from program participation and the 16-year exclusion is not unreasonable based on the evidence provided.  The IG’s exclusion determination is affirmed.

I. Background and Procedural History

By letter dated November 30, 2022, the IG excluded Petitioner from participation in Medicare, Medicaid, and all federal health care programs pursuant to section 1128(a)(1) of the Act for a minimum period of 16 years, effective 20 days from the date of the letter.  IG Exhibit (Ex.) 1 at 1.  The IG excluded Petitioner due to her conviction of a criminal offense related to the delivery of an item or service under Medicare or a State health care program, including the performance of management or administrative services relating to the delivery of such items or services, under any such program.  IG Ex. 1 at 1.  The

**Page 2**

conviction took place in the United States District Court for the Southern District of New York (District Court).  IG Ex. 1 at 1.

The mandatory minimum exclusion under section 1128(a) of the Act is five years.  However, in this case the IG imposed a greater period of exclusion based on the presence of three aggravating factors:

1)    The acts resulting in the conviction, or similar acts, caused, or were intended to cause, a financial loss to a government agency or program or to one or more entities of $50,000 or more, with approximately $840,000 in court-ordered restitution.
	2)    The acts that resulted in the conviction, or similar acts, were committed over a period of one year or more, occurring from January 2015 to December 2016.
	3)    The sentence imposed by the court included incarceration. The District Court sentenced Petitioner to two years of home detention.IG Ex. 1 at 1.  The IG did not identify any mitigating factors.

On January 30, 2023, Petitioner timely requested a hearing before an administrative law judge (ALJ).  On February 1, 2023, the Civil Remedies Division (CRD) issued an Acknowledgment Notice, my Standing Prehearing Order, and the CRD Procedures.

A prehearing conference was held by telephone on February 23, 2023.  On the same date, an Order and Schedule for Filing Briefs and Documentary Evidence (Prehearing Conference Order) was issued.  The Prehearing Conference Order summarized the substance of the prehearing conference and set a briefing schedule.

On April 26, 2023, the IG submitted an informal brief (IG Br.) and six proposed exhibits (IG Exs. 1-6).  On May 26, 2023, Petitioner submitted an informal brief (P. Br.) and one exhibit (P. Ex. 1).  The IG submitted a reply brief on May 30, 2023 (IG Reply).

II. Admission of Exhibits and Decision on the Record

All proposed exhibits are admitted into the record without objection.  42 C.F.R. § 1005.8(c).

Neither party offered witnesses to testify, and both parties indicated that an evidentiary hearing is unnecessary in this case.  IG Br. at 11; P. Br. at 4.  Therefore, this matter will be decided on the written record.  Prehearing Conference Order ¶ 7.

**Page 3**

III. Issues

The issues are whether the IG has a basis to exclude Petitioner from participation in Medicaid, Medicare, and any federal healthcare programs and, if so, whether the 16-year exclusion imposed by the IG is unreasonable.

IV. Jurisdiction

Jurisdiction is provided under 42 C.F.R. §§ 1001.2007(a)(1)-(2), 1005.2(a); *see also* 42 U.S.C. § 1320a-7(f)(1).

V. Legal Authorities

The Secretary of the U.S. Department of Health and Human Services (Secretary) shall exclude an individual from participation in Medicare, Medicaid, and all other federally funded health care programs if that individual or entity has been convicted of a criminal offense related to the delivery of an item or service under title XVIII or any State health care program.  42 U.S.C. § 1320a-7(a)(1).  The Act requires a minimum exclusion period of five years when the exclusion is mandated under section 1320a-7(a).  42 U.S.C. § 1320a-7(c)(3)(B).  The IG has the discretion to impose an exclusion longer than the minimum period when aggravating factors are present.  42 C.F.R. § 1001.102(b).  Here, the IG has imposed a 16‐year exclusion based on three aggravating factors.

The Act requires the Secretary to exclude certain individuals from participation in any federal health care programs, as defined in Section 1128B(f) of the Act.  Act § 1128(a).  The Secretary has delegated this exclusion authority to the IG.  42 C.F.R. § 1001.101(c).  Here, the IG excluded Petitioner pursuant to section 1128(a)(1) of the Act.  IG Ex. 1; *see* 42 U.S.C. § 1320a-7(a)(1).  Section 1128(a)(1) mandates exclusion if an individual or entity has been convicted of a criminal offense related to the delivery of an item or service under Medicare or a state health care program.  Act § 1128(a)(1).

The IG has the burden of proving the basis for the exclusion and the existence of any aggravating factors.  42 C.F.R. §§ 1005.15(b)(2), 1001.102(b).  Petitioner bears the burden of proof and the burden of persuasion on any affirmative defenses or mitigating factors.  42 C.F.R. §§ 1005.15(b)(1), 1001.102(c).  The standard of proof is a preponderance of the evidence, and there may be no collateral attack of the conviction that provides the basis of the exclusion.  42 C.F.R. §§ 1001.2007(c), 1005.15(d).

An excluded individual may request a hearing before an ALJ, but only on the issues of whether the IG had a basis for the exclusion and whether an exclusion longer than the required minimum period is unreasonable in light of any applicable aggravating and mitigating factors.  42 C.F.R. §§ 1001.2007(a), 1005.2(a).

**Page 4**

VI. Findings of Fact

On July 17, 2017, a criminal complaint charged Petitioner with one count of health care fraud in violation of 18 U.S.C. §§ 2, 1347 and one count of illegal remuneration in violation of 42 U.S.C. § 1320a-7b(b)(2).  IG Ex. 2 at 1-2.  An Information filed on November 15, 2017 in the District Court charged Petitioner with the same offenses outlined in the criminal complaint.  IG Ex. 3.

The complaint alleged that in or about January 2015, Petitioner and her husband owned two pharmacies, Pharmacy-1 and Pharmacy-2, located in Brooklyn, New York.  IG Ex. 2 at 4.  Petitioner managed the day-to-day operations of both pharmacies.  IG Ex. 2 at 5.  During its investigation of Petitioner, the Federal Bureau of Investigation (FBI) utilized the previous owner of Pharmacy-1 as a cooperating witness (CW).  IG Ex. 2 at 4-8.  The CW previously participated in a separate but similar scheme to defraud health care benefit programs by billing Medicare and Medicaid for prescriptions that were not actually dispensed.  IG Ex. 2 at 5.  When the CW owned the pharmacy, the CW paid kickbacks to a customer for providing prescriptions to the CW, which the CW fraudulently submitted to Medicare and Medicaid.  IG Ex. 2 at 5.  Following CW’s sale of Pharmacy-1 to Petitioner’s husband, Petitioner continued to pay kickbacks to the customer for unfilled prescriptions and fraudulently submitted the prescriptions to Medicare and Medicaid.  IG Ex. 2 at 5; *see*IG Ex. 2 at 5-11.

In or about early April 2016, an undercover FBI officer posed as a Medicaid beneficiary and met with Petitioner at Pharmacy-2.  IG Ex. 2 at 8.  The undercover officer provided Petitioner with two prescriptions for Lovaza and Soleraze, both with three refills.  IG Ex. 2 at 8-9.  Petitioner and the undercover officer agreed that Petitioner would fill one prescription and pay the undercover officer a kickback for the other prescription.  IG Ex. 2 at 9.  The undercover officer told Petitioner that she could “put [the filled prescription medication] in the garbage.”  IG Ex. 2 at 9.  Petitioner paid the undercover officer $50 but did not dispense any medications.  IG Ex. 2 at 9.  Petitioner billed Medicaid for the two prescriptions despite not dispensing Lovaza or Soleraze to the undercover officer.  IG Ex. 2 at 9.

On May 5, 2016, Petitioner billed Medicaid for refills of Lovaza and Soleraze even though the undercover officer did not go to Pharmacy-2 for a refill.  IG Ex. 2 at 10.  The undercover officer visited Pharmacy-2 again on or about June 15, 2016.  IG Ex. 2 at 9.  The officer told Petitioner, “I’m here for my refills . . . [but] I don’t need them, if you could just give them, same as last time.”  IG Ex. 2 at 10.  Petitioner did not dispense the medications and handed the undercover officer a brown paper bag containing $70.  IG Ex. 2 at 10.  Again, Petitioner billed Medicaid for the prescription refills even though she had not dispensed the medications to the undercover officer.  IG Ex. 2 at 10.

**Page 5**

A comparison of billing records and purchase records for Pharmacy-1 and Pharmacy-2 from January 2015 through December 2016 showed Petitioner billed Medicare and Medicaid for “far more units of medication” than the pharmacies purchased from licensed wholesalers.  IG Ex. 2 at 10-11.  Petitioner caused an estimated $9 million in losses to Medicare and Medicaid in the form of reimbursements for prescription drugs she did not order or dispense.  IG Ex. 2 at 11-12.

On December 21, 2020, Petitioner pleaded guilty to one count of health care fraud in violation of 18 U.S.C. §§ 2, 1347.  IG Ex. 4.  On July 7, 2022, the District Court accepted the plea and sentenced Petitioner to three years of supervised release.  IG Ex. 5 at 1, 3.  As special conditions of supervision, the District Court placed Petitioner on home detention for two years and ordered her to perform 300 hours of community service.  IG Ex. 5 at 5.  Additionally, the District Court ordered Petitioner to pay $840,000 in restitution, a $95,000 fine, and a $100 assessment fee.  IG Ex. 5 at 6; IG Ex. 6.

VII. Analysis and Conclusions of Law

***1. Petitioner was convicted of a criminal offense related to the delivery of a health care item or service under Medicare and Medicaid, which subjects her to a mandatory exclusion from all federal health care programs for a minimum of five years.**1*****In order to prevail, the IG must prove Petitioner was convicted of a criminal offense related to the delivery of a health care item or service.  Petitioner does not dispute she was convicted of a criminal offense within the meaning of the statute.  P. Br. at 1.   Petitioner pleaded guilty, and the District Court accepted the plea and adjudicated her guilty of one count of health care fraud.  IG Exs. 4, 5.  Accordingly, Petitioner was convicted of a criminal offense as defined in subsections 1128(i)(2) and (3) of the Act (an individual is “convicted” where there has been a finding of guilt against the individual, or where a court has accepted an individual’s guilty plea).

To prove that Petitioner’s conviction was related to the delivery of a health care item or service, the IG must show that there is a nexus between the offense and the delivery of a health care item or service.  The Departmental Appeals Board (Board) has repeatedly held that the phrase “related to” within the context of section 1128(a)(1) requires only that a common sense nexus exist between the offense and the delivery of a health care item or service. Summit S. Shah, M.D., DAB No. 2836 at 6 (2017) (citing cases therein).  In this case, Petitioner paid kickbacks to Medicare and Medicaid beneficiaries for prescriptions and submitted claims to Medicare and Medicaid for prescription drugs that she never dispensed. IG Exs. 2, 3.  “The filing of

**Page 6**

a false claim or facilitating the filing of a false claim is considered related to the delivery of an item or service under [Medicare and Medicaid].” Yolanda Hamilton, M.D., DAB No. 3061 at 11 (2022) (citing cases therein).  Petitioner also does not dispute that her conviction related to the delivery of an item or service under Medicare or Medicaid. P. Br. at 2.  Accordingly, Petitioner’s criminal offense was related to the delivery of items or services under the Medicare and Medicaid programs.  Petitioner is therefore subject to a five-year exclusion pursuant to section 1128(a)(1) of the Act.

***2. The IG has established three aggravating factors which together justify exclusion beyond the five-year minimum.***Exclusions imposed under section 1128(a)(1) carry a five-year mandatory minimum exclusion period.  Act § 1128(c)(3)(B) (42 U.S.C. § 1320a-7(c)(3)(B)); 42 C.F.R. § 1001.102(a).  The IG may extend the five-year exclusion period based on the application of the aggravating factors listed in 42 C.F.R. § 1001.102(b).  If any of the aggravating factors set forth in 42 C.F.R. § 1001.102(b) justify an exclusion longer than five years, mitigating factors listed at 42 C.F.R. § 1001.102(c) may be considered as a basis for reducing the period of exclusion to no less than five years.  The IG bears the burden of persuasion with respect to aggravating factors and Petitioner bears the burden of persuasion with respect to mitigating factors.  42 C.F.R. § 1005.15(b), (c).

In this case, the IG relies on three aggravating factors to impose a 16-year exclusion:  1) Petitioner’s acts resulted in a financial loss of $50,000 or more; 2) Petitioner was sentenced to a term of incarceration; and 3) Petitioner’s acts were committed over a period of one year of more.  42 C.F.R. § 1001.102(b)(1), (2), (5).  Petitioner does not dispute the IG’s identification of the aggravating factors.  P. Br. at 2.  The aggravating factors are discussed in detail below.

***A. The acts resulting in the conviction, or similar acts, caused, or were intended to cause, a financial loss to a government agency or program or to one or more other entities of $50,000 or more.***An aggravating factor exists if “acts resulting in the conviction . . . caused, or were intended to cause, a financial loss to a government agency or program or to one or more entities of $50,000 or more.”  42 C.F.R. § 1001.102(b)(1).  The complaint estimated Petitioner’s acts resulted in over $9 million in losses to Medicare and Medicaid.  IG Ex. 2.  The District Court ordered Petitioner to pay $840,000 in restitution to Medicare and Medicaid, more than 16 times the $50,000 threshold to establish this aggravating factor.  IG Ex. 5 at 6; IG Ex. 6.

The IG has the legal authority to use a financial loss greater than $50,000 to a government agency or program as an aggravating factor.  42 C.F.R. § 1001.102(b)(1).  The Board has held that “it is entirely reasonable to consider a program loss amount

**Page 7**

substantially larger than” the threshold program loss amount to be “an ‘exceptional aggravating factor’ to be accorded significant weight.”  *Laura Leyva*, DAB No. 2704 at 9-10 (2016), *aff’d*, *Leyva v. Price,*No. 8:16-CV-1986, 2017 WL 2880125 (M.D. Fla. Apr. 24, 2017).  Restitution is a reasonable measure of program losses.  *See, e.g.*, *Leyva*, DAB No. 2704 at 9; *Juan de Leon, Jr.*, DAB No. 2533 at 5 (2013).  Therefore, the IG acted within its authority in applying the amount of financial loss, in the form of restitution, as an aggravating factor.

***B. Petitioner’s sentence included incarceration.***An aggravating factor exists if incarceration is imposed by the court as part of an individual’s sentence.  42 C.F.R. § 1001.102(b)(5).  Incarceration includes, “any type of confinement with or without supervised release, including, but not limited to, community confinement, house arrest and in home detention.”  42 C.F.R. § 1001.2.

To establish this aggravating factor, the only relevant inquiry is whether Petitioner’s sentence included incarceration.  The Board has held that “incarceration of *any length* would constitute an aggravating factor.”  *Angelo D. Calabrese, M.D.*, DAB No. 2744 at 8 (2016) (emphasis added).  The District Court sentenced Petitioner to three years of supervised release with two years of home detention.  IG Ex. 5 at 3, 5.  This substantial term of incarceration reflects the seriousness of Petitioner’s offense, justifying a longer period of exclusion.  *See, e.g.,* *Gracia L. Maynard, M.D.*, DAB No. 2767 at 8 (2017) (petitioner’s sentence is “an unmistakable reflection of the . . . Court’s assessment of Petitioner’s untrustworthiness.”); *Juan De Leon, Jr.*, DAB No. 2533 at 6 (noting that “a substantial period of incarceration would, on its own, justify the I.G. in increasing an exclusion significantly in excess” of the mandatory minimum); *Jason Hollady, M.D.*, DAB No. 1855 at 12 (2002) (the Board characterizing a nine-month incarceration as “relatively substantial”).  Therefore, based on Petitioner’s incarceration, the IG has established the presence of a second aggravating factor.

***C. The acts that resulted in Petitioner’s conviction were committed over a period of one year or more***.An aggravating factor exists if “the acts that resulted in the conviction . . . were committed over a period of one year or more.”  42 C.F.R. § 1001.102(b)(2).  The acts that formed the basis of Petitioner’s conviction began in January 2015 and continued until December 2016, a period of almost two years, which exceeds the minimum one year required to meet this aggravating factor.  IG Ex. 2 at 1; IG Ex. 3 at 1; IG Ex. 4 at 1.  “[T]he purpose of this aggravating factor ‘is to distinguish between petitioners whose lapse in integrity is short-lived from those who evidence a lack of such integrity over a longer period.’”  *Vinod Chandrashekhar Patwardhan, M.D.*, DAB No. 2454 at 7 (2012) (quoting *Donald A. Burstein, Ph.D.*, DAB No. 1865 at 8 (2003)).  The length of Petitioner’s health care fraud scheme represents more than a short-lived lapse of integrity

**Page 8**

and reflects negatively on her trustworthiness.  *Hamilton*, DAB No. 3061 at 14 (citing *Burstein*, DAB No. 1865 at 8).  Therefore, the IG has acted within her authority in applying the length of time that the criminal acts were committed as an aggravating factor.

***3. Petitioner has failed to establish any mitigating factor recognized under 42 C.F.R. § 1001.102(c).***The regulations provide a list of mitigating factors that may be applied to reduce an exclusion to no less than five years if aggravating factors are present.  42 C.F.R. § 1001.102(c).  The applicable regulations identify only three mitigating factors that may be considered to reduce a period of exclusion:  (1) a petitioner was convicted of three or fewer misdemeanor offenses and the resulting financial loss to the program was less than $5,000; (2) the record in the criminal proceedings demonstrates that the court determined that a petitioner had a mental, physical, or emotional condition that reduced their culpability; and (3) a petitioner’s cooperation with federal or state officials resulted in others being convicted or excluded, or additional cases being investigated, or a civil money penalty being imposed.  42 C.F.R. § 1001.102(c).

Petitioner argues that although none of the regulatory mitigating factors apply, there are other factors, outlined in the sentencing memorandum submitted to the District Court (P. Ex. 1 at 1-24), that favor a shorter exclusion period.  P. Br. at 5.  Petitioner argues that she was under extreme stress in early 2015 due to dealing with an undiagnosed illness that affected her adult son.  P. Ex. 1 at 1. In the sentencing memorandum, Petitioner’s counsel explained that Petitioner committed the offenses because her fears about her son’s medical condition clouded her judgment.  P. Ex. 1 at 1-3, 9. Petitioner also mentioned that she was diagnosed with a mental illness and that she started counseling in 2016.  P. Ex. 1 at 13.   To the extent Petitioner argues a mental, emotional, or physical condition before or during the commission of her crimes reduced her culpability, Petitioner did not substantiate that the District Court made a finding of any mental or physical condition that reduced her culpability of committing the offense.

Though the uncertainty surrounding her son’s health was undoubtedly a stressful time for Petitioner and her family, I do not have the authority to consider that information in determining whether the length of the imposed exclusion is unreasonable. An ALJ does not have authority to consider any factors as mitigating other than those specified at 42 C.F.R. § 1001.102(c).  *Waleed Khan*, DAB No. 3083 at 9 (2023); *Shaun Thaxter*, DAB No. 3053 at 35 (2021) (“The mitigating factors that ALJs and the Board may consider are limited to those listed in the regulation.”); *Anthony Joseph Moschetto, D.O.*, DAB No. 3030 at 14 (2021) (emphasizing that “*only* the mitigating factors in section 1001.102(c) may be considered for possible reduction of an exclusion period longer than the mandatory minimum period”); *Hussein Awada, M.D.*, DAB No. 2788 at 8 (2017) (“Only

**Page 9**

the mitigating factors identified in section 1001.102(c) may be considered and applied to reduce a period of exclusion.”).

The sentencing memorandum explains that Petitioner accepts full responsibility, is remorseful, has been a model supervisee since her arrest, has remained completely law-abiding since committing the offense, and has rehabilitated herself.  P. Ex. 1 at 4-6.  Petitioner also submitted letters from family members, friends, and colleagues attesting to her character.  P. Ex. 1 at 26-44, 51-54.  However, an individual’s good character and reputation are not mitigating factors under the governing regulations and, therefore, cannot be considered in determining the length of exclusion.  *See* 42 C.F.R. § 1001.102(c); *see also* *Hamilton*, DAB No. 3061 at 18-19 (the Board agreeing with the ALJ that petitioner’s arguments that her patients thought well of her and that she is a good physician are to no avail).  For all these reasons, Petitioner has not established the presence of any mitigating factors that may be considered to reduce the period of exclusion.

***4. Based on the three aggravating factors and no mitigating factors, I find that the 16-year exclusion imposed by the IG is not unreasonable.***Petitioner argues the IG gave excessive weight to the aggravating factors, while minimizing other factors favoring a shorter exclusion period.  P. Br. at 5.  Contrary to Petitioner’s arguments, the regulations in 42 C.F.R. Part 1001, including the mitigating factors in section 1001.102(c), are applicable and binding on the IG and the ALJ.  *Khan*, DAB No. 3083 at 9 (citing 42 C.F.R. § 1001.1(b)).  Only the mitigating factors specified at 42 C.F.R. § 1001.102(c) may be considered to reduce the length of an exclusion exceeding the statutory minimum.  *Khan*, DAB No. 3083 at 9; *Thaxter*, DAB No. 3053 at 35; *Moschetto*, DAB No. 3030 at 14; *Awada*, DAB No. 2788 at 8.  Petitioner did not meet her burden to prove the existence of any of the regulatory mitigating factors.  Therefore, no mitigating factors exist to reduce the exclusion period.

Relatedly, Petitioner asserts the District Court judge “gave considerable weight to Petitioner’s personal characteristics including the remarkable stress that she suffered from during the lengthy period of her son’s illness” and the IG should have done the same when determining the exclusion period.  P. Br. at 6.  Again, the IG may only consider the regulatory mitigating factors to reduce an exclusion period.  Further, in contrast to the punitive nature of criminal prosecution, the IG’s exclusion authority serves the remedial purpose of protecting “present and future Medicare beneficiaries from the abusers of these programs.”  *Manocchio v. Kusserow*, 961 F.2d 1539, 1542 (11th Cir. 1992).  Petitioner provides no authority to support her claim that the IG or ALJ should weigh her personal circumstances in the same manner as the District Court.

Petitioner further argues the IG “limited its decision making to the mere existence of aggravating factors alone,” resulting in an unreasonable exclusion period.  P. Br. at 6-7.

**Page 10**

However, the IG has broad discretion in determining the length of an exclusion based on the IG’s “vast experience” in implementing exclusions.  *Craig Richard Wilder*, DAB No. 2416 at 8 (2011) (citing 57 Fed. Reg. 3298, 3321 (Jan. 29, 1992)).  In determining whether the length of exclusion is unreasonable, an ALJ must determine whether the length of the exclusion falls into a “reasonable range” based on the evidence in the record.  The regulations provide that the IG’s proposed exclusion must be upheld as long as the length of exclusion is not 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 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, 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, 3314-15 (1992).

An ALJ reviews de novo the duration of an exclusion period to determine whether it falls within a reasonable range based on any aggravating and mitigating factors and the circumstances underlying those factors.  *Hamilton*, DAB No. 3061 at 12 (citing*Sushil Aniruddh Sheth, M.D.*, DAB No. 2491 at 7 (2012), *appeal dismissed, Sheth v. Sebelius*, No. 13-cv-00448 (BJR), 2014 WL 11813597 (D.D.C. Jan. 10, 2014), *aff’d*,*Sheth v. Burwell*, No. 14‐5179, 2015 WL 3372286 (D.C. Cir. May 7, 2015)).  The ALJ’s evaluation does not rest on the number of aggravating or mitigating factors or any rigid formula for weighing them, “but rather on a case-specific determination of the weight to be accorded [to] each factor based on a qualitative assessment of the circumstances surrounding the factors in th[e] case.”  *Mrugeshkumar Shah, M.D.,**DAB No. 3079 at 9-10 (2022) (quoting Sheth**, DAB No. 2941 at 5).*  However, ALJs may not substitute their judgment for that of the IG or choose an exclusion period that they prefer over that set by the IG.  *Hamilton*, DAB No. 3061 at 12.  An ALJ does not have the authority to change a period of exclusion so long as the period of exclusion imposed by the IG is within a

**Page 11**

reasonable range.  *Jeremy Robinson*, DAB No. 1905 at 5 (2004); *Joann Fletcher Cash*, DAB No. 1725 at 7 (2000).

Based on the evidence and the circumstances surrounding Petitioner’s conviction,  a 16-year exclusion is not unreasonable.  Petitioner pleaded guilty to health care fraud for submitting claims for prescription drugs to Medicare and Medicaid that she did not actually dispense.  IG Ex. 4.  The District Court ordered restitution in the amount of $840,000, more than 16 times the $50,000 threshold amount for aggravation in 42 C.F.R. § 1001.102(b)(1).  *See*IG Ex. 5 at 6; IG Ex. 6.  It is “entirely reasonable” to consider financial losses substantially greater than the regulatory threshold to be an “exceptional aggravating factor entitled to significant weight.”  *Devon Rambert-Hairston*, DAB No. 3069 at 13 (2022) (citing *Eduardo Miranda, M.D.*, DAB No. 2755 at 4-5 (2016) (internal quotation marks omitted)).  Accordingly, this factor alone justifies extending the period of exclusion by a significant length.

The District Court also sentenced Petitioner to three years of supervised release to include two years of home detention.  IG Ex. 5 at 3, 5.  Despite Petitioner’s claim that there is a distinction between home detention and incarceration, the regulation specifically includes supervised release and home detention as incarceration.  42 C.F.R. § 1001.2; *Roji Esha*, DAB No. 3076 at 15 (2022) (any differences between prison and non-prison forms of confinement, such as home detention, are irrelevant for the purpose of determining whether a petitioner was sentenced to incarceration); *Brenda Mills, M.D.*,*a/k/a Brenda Kluttz*, DAB CR1461 at 4 (2006) (six months of home confinement establishes incarceration), *aff’d*, DAB No. 2061 (2007).  Three years of supervised release, with two years of home detention justifies a greater exclusion period.  *See* *Shaun Thaxter*, DAB No. 3053 at 32 (2021) (“[a]ny period of incarceration justifies increasing the period of exclusion”).

Additionally, Petitioner’s engagement in illegal conduct for nearly two years demonstrates she is untrustworthy and poses a substantial threat to federal health care programs and beneficiaries.  *See, e.g.*, *Shah*, DAB No. 3079 at 10; *Hamilton*, DAB No. 3061 at 14; *Awada*, DAB No. 2788 at 8.  Significant weight may be assigned to illegal conduct that “occurred for even slightly longer than the one-year threshold.”  *Shah*, DAB No. 3079 at 10 (citing *Awada*, DAB No. 2788 at 8-10).  Therefore, this factor also weighs heavily in favor of enhancing the exclusion period to protect health care programs and their beneficiaries from the threat of untrustworthy actors.  *See* *Hamilton*, DAB No. 3061 at 14.

Finally, Petitioner cites *Ronald Grusd, M.D.*, DAB CR5800 (2021), where the IG imposed a 14-year exclusion based on three aggravating factors, an offense that was committed for approximately three years, 48 months of imprisonment, and state action

**Page 12**

against the petitioner’s license.2  P. Br. at 7.  Petitioner also cites *Thomas Sahs*, DAB CR5815 (2021), where the IG imposed a 15-year exclusion based on the presence of two aggravating factors, restitution of $3,493,512 and 45 months of imprisonment.  P. Br. at 7.  Petitioner claims her 16-year exclusion period is unreasonable compared to the petitioners in *Grusd and Sahs* because the District Court sentenced her to home detention rather than incarceration and ordered only $840,000 in restitution.  P. Br. at 7.

The Board has long rejected case comparisons.  *Thaxter*, DAB No. 3053 at 32; *Robert Hadley Gross*, DAB No. 2087 at 6 (2017) (“Comparisons with other cases are not controlling and of limited utility” because aggravating and mitigating factors do not have specific values and “must be evaluated based on the circumstances of a particular case . . . which can vary widely.”).  Case comparisons “are of limited value and ultimately are not dispositive on the question of reasonableness of an exclusion period in a given case.”  *Shah*, DAB No. 3079 at 12 (citing *Eugene Goldman, M.D.*, *a/k/a Yevgeniy Goldman, M.D.*, DAB No. 2635 at 11 (2015)).

Moreover, neither of the two cases Petitioner cites demonstrates that her 16-year exclusion falls outside a reasonable range.  Petitioner’s criminal offense lasted almost two years, reflecting more than a brief lapse in judgment, an aggravating factor that was not applicable in *Sahs*.  *See Sahs*, DAB CR5815.  *Grusd* can also be distinguished from this case because the IG did not determine the petitioner in *Grusd* caused significant losses to Medicare and Medicaid.3 *See* *Grusd*, DAB CR5800.

The three proven aggravating factors establish that Petitioner manifests a high degree of untrustworthiness, justifying a lengthy exclusion.  *See Burstein*, DAB No. 1865 (2003 WL 1055659 at *8) (citing *Patel v. Thompson*, 319 F.3d 1317, 1319 (11th Cir. 2003); *Mannocchio v. Kusserow*, 961 F.2d at 1543).  Petitioner engaged in health care fraud for nearly two years, demonstrating that she posed an ongoing threat to federal health care programs and beneficiaries.  Petitioner’s fraudulent scheme resulted in losses to Medicare and Medicaid that exceeded the threshold more than 16 times.  Additionally, Petitioner’s sentence to supervised release and home detention supports an increase in the exclusion.

**Page 13**

Therefore, based upon the underlying facts of Petitioner’s case and the existence of three aggravating factors and no mitigating factors, a 16-year exclusion is not unreasonable.

VIII. Conclusion

The IG properly excluded Petitioner from participating in Medicare, Medicaid, and other federal health care programs.  The 16-year exclusion is not unreasonable based upon the circumstances of this case.

Endnotes

1  My findings of fact and conclusions of law are set forth in bold and italic text.

2  The IG originally imposed a 20-year exclusion on petitioner Ronald Grusd, M.D.  However, the IG conceded the 20-year length of exclusion was unreasonable because the federal district court significantly reduced Dr. Grusd’s period of incarceration from 10 years to 48 months.  The IG proposed a six-year reduction of the original length of the exclusion, which the ALJ found appropriate based on a qualitative assessment of the aggravating factors in that case.

3  While the District Court ordered $840,000 in restitution, the complaint charged that Petitioner caused an estimated $9 million in losses to Medicare and Medicaid in the form of reimbursements for prescription drugs she did not order or dispense.  IG Ex. 2 at 11-12.
  
          /s/
        Tannisha D. Bell

                      Administrative Law Judge Back to top
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