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                              Devon Rambert-Hairston, DAB No. 3069 (2022)
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Devon Rambert-Hairston, DAB No. 3069 (2022)








  
  
    

  
      
Department of Health and Human Services 
    DEPARTMENTAL APPEALS BOARD
          Appellate Division





Devon Rambert-Hairston
Docket No. A-22-54Decision No. 3069August 26, 2022

        
              
    

      FINAL DECISION ON REVIEW OF ADMINISTRATIVE LAW JUDGE DECISION

Devon Rambert-Hairston (Petitioner) appeals the decision of an Administrative Law Judge (ALJ) upholding a determination by the Inspector General (I.G.) to exclude Petitioner from participating in all federal health care programs for 13 years.  *See *Devon Rambert-Hairston, DAB CR6063**(2022) (ALJ Decision).  The ALJ concluded that Petitioner was subject to exclusion under section 1128(a)(1) of the Social Security Act (Act)1 because she had been convicted of a criminal offense related to the delivery of an item or service under a state Medicaid program.  The ALJ further concluded that a 13-year exclusion – eight years longer than the applicable statutory minimum exclusion period – was not unreasonable given the existence of two aggravating factors related to her conviction and the absence of any relevant mitigating factor.  For the reasons explained below, the Board affirms the ALJ Decision because it is supported by substantial evidence and not legally erroneous.

Legal Background

Section 1128(a) of the Act requires the Secretary of Health and Human Services to exclude from participation in any “[f]ederal health care program” individuals who have been convicted of certain types of criminal offenses specified in paragraphs (a)(1) through (a)(4) of that section.  Exclusions imposed under section 1128(a) are referred to as “mandatory” exclusions.  The general purposes of a section 1128 exclusion are to protect federal health care programs and their beneficiaries from untrustworthy individuals and to deter health care fraud.  *See Jeremy Robinson*, DAB No. 1905, at 3, 8, 11 (2004).

As permitted by the Act, the Secretary has delegated his authority to enforce section 1128’s exclusion provisions to the I.G.  Act § 1128A(j)(2); 48 Fed. Reg. 21,662 (May 13,

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1983); 53 Fed. Reg. 12,993 (Apr. 20, 1988).  The I.G. in turn has issued regulations, codified in 42 C.F.R. Part 1001, implementing the delegated exclusion authority.  *See* 42 C.F.R. § 1001.1.  Those regulations apply to and bind the I.G. in imposing exclusions, and they also apply to and bind administrative law judges and the Departmental Appeals Board (Board) in reviewing exclusions imposed by the I.G.  *Id.*§ 1001.1(b).

Section 1128(a)(1) of the Act – the provision under which the I.G. imposed the exclusion at issue in this case – mandates the exclusion of an individual “convicted of a criminal offense related to the delivery of an item or service under [Medicare] or under any State health care program.”  The term “State health care program” is defined in the statute to include “a State plan approved under title XIX” – that is, a state’s federally approved Medicaid program.  Act § 1128(h).  For purposes of the exclusion statute, an individual has been “convicted” of a criminal offense when (among other circumstances) “a judgment of conviction has been entered against the individual . . . by a Federal, State, or local court” or “when a plea of guilty . . . by the individual . . . has been accepted by a Federal, State, or local court.”  Act § 1128(i)(1), (3).

If the I.G. validly determines that an individual has been convicted of an offense described in section 1128(a), then, with exceptions not relevant here, the I.G. must exclude the individual for a period of “not less than five years[.]”  Act § 1128(c)(3)(B); *see also* 42 C.F.R. § 1001.102(a).  The I.G. may extend the mandatory exclusion period beyond the statutory minimum if one or more “aggravating” factors specified in 42 C.F.R. § 1001.102(b) are present.  Two such factors are relevant here:

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. . . .;

*   *   *

The sentence imposed by the court included *incarceration*[.2]

*Id.* §§ 1001.102(b)(1), (5) (italics added).  With respect to the financial-loss factor, the Board has held that a sentencing court’s order that the defendant pay restitution to a government agency or program may constitute proof, and a reasonable measure, of financial loss caused or intended by the defendant’s conduct.3

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If the I.G. determines that one or more aggravating factors warrant an exclusion longer than the five-year minimum, then the I.G. may consider certain “mitigating” factors in 42 C.F.R. § 1001.102(c) – including the excluded individual’s “cooperation with Federal or State officials” (provided that the cooperation resulted in certain outcomes) – as a basis for reducing the exclusion period to no less than five years.  The factors specified in section 1001.102 of the I.G.’s regulations are the only factors that may be considered aggravating or mitigating in imposing or reviewing a section 1128(a) exclusion longer than the statutory minimum.  *Andrew Louis Barrett*, DAB No. 2887, at 7 (2018).

When the I.G. decides that exclusion is warranted, she sends written notice of the decision to the excluded individual identifying, among other things, the legal and factual basis for exclusion, the length of the exclusion, and the factors considered, if any, in determining the exclusion’s length.  42 C.F.R. § 1001.2002.  The excluded individual may then challenge the I.G.’s decision by requesting a hearing before an administrative law judge.  *Id.*§§ 1001.2007(a)(1), 1005.2(a).

The regulations limit an administrative law judge’s review of a challenged exclusion to two general issues:  first, whether “[t]he basis for imposition of the [exclusion] exists”; and second, whether “[t]he length of exclusion [to the extent it exceeds the mandatory minimum period] is unreasonable.”  *Id.* § 1001.2007(a)(1)-(2); *Delores L. Knight*, DAB No. 2945, at 13 (2019).  The administrative law judge addresses these issues *de novo* and in doing so may consider information or evidence that the I.G. did not consider or rely upon in imposing the exclusion.  *Shaun Thaxter*, DAB No. 3053, at 3 (2021).  Thus, the excluded individual may contend before an administrative law judge that the exclusion’s length is unreasonable due to the presence of a mitigating factor not considered by the I.G.

Based on the parties’ documentary evidence, hearing testimony (if any), and other record material, the administrative law judge issues an “initial decision” that affirms, increases, or reduces the exclusion imposed by the I.G.  42 C.F.R. § 1005.20(a)-(b).  A party dissatisfied with the initial decision may appeal the decision to the Board.  *Id.* § 1005.21(a).  Board review of the initial decision is, in general, based on the evidentiary record developed before the administrative law judge.  *See id.* § 1005.21(f); *Gracia L. Mayard, M.D.*, DAB No. 2767, at 6-8 (2017).  The Board “may decline to review the case, or may affirm, increase, reduce, reverse or remand any . . . exclusion determined by the ALJ.”  42 C.F.R. § 1005.21(g).

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Case Background

On March 28, 2019, federal prosecutors charged Petitioner in the United States District Court for the Western District of North Carolina with one count of conspiracy to commit money laundering in violation of 18 U.S.C. § 1956(h).  I.G. Ex. 2, at 1, 5.  The Bill of Information alleged that, as an employee of Taylor Behavioral Health Center (TBHC) in Monroe, North Carolina, Petitioner conspired with TBHC’s owners to submit false or fraudulent health care benefit claims to the North Carolina Medicaid program, claims that resulted in improper payment by that program of at least $813,762.  *Id.* at 2-4.

Pursuant to a written plea agreement, Petitioner pleaded guilty to the conspiracy charge.  I.G. Ex. 3, at 1; P. Ex. 1, at 2-3, 16, 31-32.  The district court accepted the plea, entered judgment of conviction against Petitioner, and sentenced her to 12 months and one day of imprisonment.  I.G. Ex. 3, at 1; P. Ex. 1, at 3.  The district court also ordered Petitioner to pay $813,726 in restitution to the North Carolina Medicaid program, while notifying her that she and her co-defendants would be jointly and severally liable for such payment.  I.G. Ex. 3, at 4, 5; P. Ex 1, at 39.  Petitioner’s conviction was affirmed by the United States Court of Appeals for the Fourth Circuit on October 6, 2020.  *United States v. Rambert-Hairston*, 824 F. App’x 179 (4th Cir. 2020).4

On September 30, 2021, the I.G. notified Petitioner that she was being excluded from participation in all federal health care programs for 13 years pursuant to section 1128(a)(1) of the Act because she had been convicted of a criminal offense related to the delivery of an item or service under Medicare or a state health care program.  I.G. Ex. 1, at 1.  The I.G. explained that eight years had been added to the statutory minimum exclusion period because of two aggravating factors:  (i) acts by Petitioner resulting in her conviction (or similar acts) had caused, or were intended to cause, a financial loss to a government program of $50,000 or more; and (ii) the sentence imposed by the district court for her criminal offense included incarceration.  *Id.* at 1-2.

Petitioner timely requested a hearing before the ALJ to challenge the exclusion.  The ALJ entered a Standing Prehearing Order advising the parties that the I.G. would “bear the burden of proof as to the basis for exclusion and the existence of any aggravating factors”; that Petitioner would “bear the burden of proving any affirmative defenses or factors to mitigate the length of exclusion”; and that the applicable “standard of proof”

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was a “preponderance of the evidence . . ., which means a fact is proven if the evidence shows that it is more likely true than not true.”  Standing Prehearing Order ¶ 6.5

Both parties submitted written argument and documentary evidence (all of which the ALJ admitted).  The parties’ submissions included “Informal Briefs” consisting of answers to the ALJ’s questions about their positions on key issues.

In her Informal Brief to the ALJ (dated January 15, 2022), Petitioner did not dispute that she had been “convicted” of a criminal offense within the meaning of the exclusion statute.  Pet. Informal Br. at 1.  Nor did she argue that her offense failed to meet the criteria for exclusion under section 1128(a)(1).  *See id.* at 2-3.6  Petitioner instead alleged that, notwithstanding her guilty plea, she was, in fact, innocent of the offense; that she had been wrongfully prosecuted based on insufficient evidence; that her guilty plea had been coerced; that her defense lawyer was ineffective; and that the prosecutor had engaged in prejudicial misconduct and had slandered her in the media.  *Id.* at 2-3, 10, 11-22.  Petitioner implied that these circumstances warranted vacating the exclusion or, at minimum, reducing its length.  *See id.*at 2-3, 10-11.

During a prehearing telephone conference (at which Petitioner appeared *pro se*), the parties stated that an in-person evidentiary hearing was not required.  *See*Nov. 16, 2021 Order Summarizing Pre-Hearing Conf. at 6.  The ALJ accordingly proceeded to decide the case “on the written record.”  ALJ Decision at 2.

In accordance with the regulation limiting her scope of review, the ALJ considered two main issues:  (1) whether the I.G. had a basis to exclude Petitioner under section 1128(a)(1) of the Act; and, if so, (2) whether a 13-year exclusion is unreasonable.  *Id.*   Before addressing those issues, the ALJ found the following facts, drawn mainly from the government’s Bill of Information (I.G. Ex. 2), to be the factual basis for Petitioner’s conviction for conspiracy to commit money laundering:

“Petitioner was licensed as a nurse practitioner [in North Carolina] from September 2010 through at least August 2018.”  ALJ Decision at 3*.*Page 6

“In 2015, Petitioner was employed at Taylor Behavior Health Center (TBHC), a provider of mental and behavioral health services and after school programs . . . .  Petitioner served as the clinical director of TBHC from August 2016 to February 2017.”  *Id.*
	“Petitioner was enrolled [in the North Carolina Medicaid program] as a rendering provider and was a billing provider.  All billing and rendering providers must certify that they will only bill the government for services actually rendered.”*Id.* (citations omitted).
	“Beginning in or about July 2015, TBHC’s co-owners, T.G.T. and J.T., engaged in a scheme to defraud Medicaid by submitting false and fraudulent reimbursement claims and misrepresenting the services provided.  In furtherance of the scheme to defraud, Petitioner reviewed and signed off on progress notes reflecting behavioral health services provided by TBHC to Medicaid beneficiaries.  Petitioner did not personally provide medical services and she rarely interacted with the beneficiaries.  Many of the beneficiaries did not receive services from Petitioner or TBHC, and those who did receive services did so from a licensed marriage and family therapist, who was precluded by Medicaid regulations from rendering the evaluation and management services claimed.”  *Id.* (citations omitted).
	“In or around August 2016, Petitioner agreed to allow T.G.T. and J.T. to submit Medicaid claims using her National Provider Identifier (NPI) number as the billing provider until other entities owned by T.G.T. and J.T. could be enrolled as Medicaid providers.  Between September 2016 and February 2017, approximately $1.3 million in fraudulent claims were submitted to Medica[id] under Petitioner’s NPI number as both the rendering and billing provider.  Medicaid wired at least $813,726 directly into Petitioner’s State Employees Credit Union (SECU) account.  Petitioner transferred at least $751,000 of the funds to T.G.T. and J.T. and kept the remainder.  On several occasions, Petitioner visited SECU with T.G.T. to transfer funds from her account to his.  She also transferred the funds via cash withdrawals and cashier’s checks.”  *Id.* (citations omitted).Based on these findings, and on records evidencing Petitioner’s guilty plea and the district court’s adjudication of guilt, the ALJ concluded that Petitioner had been convicted of an offense related to the delivery of a health care item or service under Medicaid, and that the I.G. therefore had a basis to exclude her – and indeed was required to exclude her – from all federal health care programs for a minimum of five years.  *See* ALJ Decision at 4-5.  The ALJ further held that Petitioner’s contentions amounted to a “collateral attack on the underlying conviction” whose merits she had no authority to consider in deciding whether there is a basis for exclusion.  *Id.* at 5-6.  In refusing to entertain Petitioner’s allegations regarding the validity of her conviction, the ALJ relied on 42 C.F.R. § 1001.2007(d), which provides that “[w]hen the exclusion is based on the

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existence of a criminal conviction . . ., the basis for the underlying conviction . . . is not reviewable and the individual or entity may not collaterally attack it either on substantive or procedural grounds” in an administrative appeal of the exclusion.

Turning to the question of whether a 13-year exclusion is reasonable, the ALJ found that the I.G. had proved the existence of the two aggravating factors specified in its notice of exclusion, and that Petitioner had not alleged or proved the presence of any mitigating factor.  ALJ Decision at 6-7.  The ALJ acknowledged an allegation by Petitioner that she had cooperated with FBI agents in 2017 but found that Petitioner had not proved that the alleged cooperation met any of the conditions in 42 C.F.R. § 1001.102(c)(3) for treating it as a mitigating factor.7  *Id.*In addition, the ALJ noted that the I.G. “has broad discretion in determining the length of an exclusion, based on [her] ‘vast experience’ in implementing exclusions,” *id.*at 6 (quoting *Craig Richard Wilder* at 8 (internal quotation marks omitted)), and that she (the ALJ) “d[id] not have the authority to substitute [her] own judgment for that of the IG, nor to impose a period of exclusion that seems more reasonable to [her],” *id.* at 7 (citing *Juan de Leon, Jr.*at 4).  The ALJ concluded that “the IG’s determination of a 13-year exclusion is reasonable” based on the two demonstrated aggravating factors.  *Id.*at 7.

Having resolved the two main issues before her in favor of the I.G., the ALJ affirmed the 13-year exclusion imposed on Petitioner.  *Id.*

Petitioner timely appealed the ALJ Decision to the Board, attaching a six-page brief (dated May 15, 2022) to her notice of appeal.  The I.G. filed a response brief.  Although Petitioner stated in her appeal brief that she would address certain matters (including the aggravating factors found by the ALJ) in a “final” brief, Petitioner did not file, or ask the Board for leave to file, a reply to the I.G.’s response brief.8

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Analysis

Like the ALJ, the Board is bound by the regulation limiting the scope of administrative review of a section 1128 exclusion.  *See* 42 C.F.R. § 1001.1(b); *Kenneth Schrager*, DAB No. 2366, at 6 (2011) (stating that the Board is “bound by all applicable regulations”).  Accordingly, our analysis is limited to deciding whether the ALJ erred in concluding:  (1) that a basis exists to exclude Petitioner under section 1128(a)(1) of the Act; and (2) that a 13-year exclusion is not unreasonable based on the aggravating factors found by the ALJ and the absence of any mitigating factor.  In doing so, we “will not consider any issue not raised in the parties’ [appeal] briefs, nor any issue in the briefs that could have been raised before the ALJ but was not.”  42 C.F.R. § 1005.21(e).  We review any disputed “issue of fact” to determine “whether the initial decision [by the ALJ] is supported by substantial evidence on the whole record,” and any disputed “issue of law” to determine “whether the initial decision is erroneous.”  *Id.* § 1005.21(h); *Sheila Ann Reed*, DAB No. 3059, at 6 (2022).

****The ALJ correctly found that a basis exists to exclude Petitioner under section 1128(a)(1).****A basis exists to exclude an individual under section 1128(a)(1) if two criteria are satisfied:  first, the individual “has been *convicted* of a criminal offense” (italics added); and second, the offense is “*related to the delivery of* an item or service under” Medicare or Medicaid (italics added).  The ALJ found both criteria to be satisfied.  She found:  (1) that Petitioner was “convicted” of a criminal offense (within the meaning of the exclusion statute and regulations) when she pleaded guilty to conspiracy to commit money laundering and the district court accepted her plea; and (2) that the offense was related to the delivery of an item or service under a federal health care program because it involved fraudulent billing of the North Carolina Medicaid program.  *See*ALJ Decision at 4-5.  Petitioner does not dispute any element of these findings.9  We therefore summarily affirm the ALJ’s conclusion that a basis exists to exclude Petitioner under section 1128(a)(1) of the Act for at least five years.  *See, e.g.*, *Diane Marie Krupka*, DAB No. 3020, at 5 (2020) (summarily affirming an administrative law judge’s conclusion that the I.G. had a basis to exclude the appellant because the appellant alleged no error by the ALJ in reaching that conclusion).

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As she did before the ALJ, Petitioner suggests that the exclusion should be vacated because her conspiracy conviction is, for various reasons, invalid or unjustified.  For example, she claims that she was not guilty of the conspiracy charge because she did not act with the necessary knowledge or criminal intent, and that her defense lawyer “coerced” her to plead guilty.  Pet. Appeal Br. at 2-3, 4-5 (alleging there was “no agreement to defraud the government between the petitioner” and any co-defendant).

The ALJ correctly rejected these and other contentions about the conviction’s merits as irrelevant in this proceeding.  As noted, 42 C.F.R. § 1001.2007(d) provides that “[w]hen the exclusion is *based on the existence of* a criminal conviction” (italics added), the excluded individual “may not collaterally attack [the conviction] either on substantive or procedural grounds” before the ALJ or the Board.  The challenged exclusion in this case is based on the continuing “existence” or fact of Petitioner’s conviction for an offense meeting section 1128(a)(1)’s criteria, not on a retrospective assessment of the conviction’s merits.  Consequently, Petitioner may not contest the exclusion by contending that the underlying conviction is substantively or procedurally defective, as she does by claiming, for example, that the conviction rests on an involuntary guilty plea.  *See Olandis Moore*, DAB No. 2963, at 6 (2019) (noting that the Board has consistently refused to entertain claims that a conviction supporting an exclusion is invalid or that the excluded person was in fact innocent of the offense of conviction); *Emmanuel Uko Akpan*, DAB No. 2330, at 8 (2010) (holding that the merits of a claim that a guilty plea had been coerced could not be reviewed by the ALJ or the Board in an appeal of a section 1128 exclusion); *Peter J. Edmonson*, DAB No. 1330, at 4-5 (1992) (holding that it is “the fact of the conviction which causes the exclusion,” that the Secretary could not “look behind the conviction” in deciding whether an exclusion was mandated under section 1128(a)(2), and that “the fact that a criminal conviction may have been defective . . . is irrelevant to the issue of the I.G.’s authority to exclude a convicted individual”); *Mohamad Ahmad Bazzi*, DAB No. 2917, at 9 (2018) (holding that section 1001.2007(d) precludes “any attempt [by the excluded individual] to defend against the exclusion derived from [a] conviction by denying or minimizing the crime itself”).  The appropriate forum for challenging the validity of a conviction is an appropriate state or federal court, not the administrative hearing-and-appeal process for reviewing federal program exclusions.

****The ALJ’s conclusion that a thirteen-year exclusion is not unreasonable is supported by substantial evidence and free of legal error.****Because Petitioner is indisputably subject to exclusion based on her federal conspiracy conviction, the only remaining material issue in this appeal is whether the ALJ erred in concluding that a 13-year exclusion is not unreasonable.  In reviewing the reasonableness of an exclusion longer than the statutory minimum, an administrative law judge should determine whether the record establishes the presence of any aggravating and mitigating factors, and then determine de novo “whether [the exclusion] falls within a reasonable

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range, given the aggravating and mitigating factors and the circumstances underlying them.”10  *Shaun Thaxter*at 26 (internal quotation marks omitted); *Edwin L. Fuentes*, DAB No. 2988, at 9 (2020) (noting that the ALJ “is to review the record before [her] to determine what the evidence establishes as to the . . . aggravating and mitigating factors, rather than review the record as it was when the I.G. issued the exclusion”), *aff’d, Fuentes v. Becerra*, No. 4:20-cv-26, 2021 WL 43411115 (W.D. Va. Sept. 23, 2021).  “Such an evaluation does not rest on the specific number of aggravating or mitigating factors or any rigid formula for weighing those factors, but rather on a case-specific determination of the weight to be accorded each factor based on a qualitative assessment of the circumstances surrounding the factors in that case.”  *Shaun Thaxter* at 26 (internal quotation marks omitted).

***a.  Aggravating factors***

As noted, the ALJ in this case found that the I.G. had proved the presence of two aggravating factors – namely, that:  (1) actions of Petitioner resulting in her conviction had caused, or were intended to cause, financial loss to a government agency or program of $50,000 or more (the factor specified in 42 C.F.R. § 1001.102(b)(1)); and (2) that Petitioner had received a sentence of incarceration (the factor specified in 42 C.F.R. § 1001.102(b)(5)).  ALJ Decision at 6.  The ALJ further found that both factors supported an exclusion longer than the statutory minimum.  *Id.*  Petitioner does not challenge these findings and, therefore, we summarily affirm them.

***b.  Mitigating factors***

Petitioner contends that there are “several mitigating factors” in her case.  Pet. Appeal Br. at 5.  In particular, she alleges that she played a minor role in the money-laundering conspiracy (compared to her co-conspirators); did not personally submit or cause the submission of false Medicaid claims; did not benefit financially (or otherwise) from any illegal activity; and had a clean record with the North Carolina Medicaid program (prior to the acts resulting in her prosecution).  Even if true, these circumstances are irrelevant in assessing the reasonableness of the exclusion because 42 C.F.R. § 1001.102(c) does not identify them as mitigating factors, and because none is related to an established mitigating factor.11  *Gracia L. Mayard* at 9 (holding that the excluded individual’s allegedly diminished culpability and claim that she derived no financial benefit from her

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criminal conduct were irrelevant in determining the exclusion period’s reasonableness because those circumstances were “not the basis for, or related to, any established mitigating factor”); *Andrew Louis Barrett*at 7 (holding that “an ALJ’s review of the exclusion’s reasonableness must be based only on the aggravating and mitigating factors specified in the IG’s regulations,” and that circumstances which could be weighed by a court in imposing a defendant’s sentence are not necessarily relevant in the administrative hearing and appeal process for reviewing section 1128 exclusions).

Petitioner also alleges, for the first time, that she provided the government “significant assistance” that resulted in her “co-defendants” receiving “significant prison time and other penalties.”  Pet. Appeal Br. at 5.  To support that allegation, Petitioner cites the transcript of her sentencing hearing.  *Id.*(citing P. Ex. 1).  During that hearing, the district court granted the government’s request under section 5K1.1 of the United States Sentencing Guidelines for a “downward departure” from the sentencing range determined under the Guidelines because of Petitioner’s “substantial assistance” to authorities.12  P. Ex. 1, at 5, 35.

Petitioner did not call these circumstances to the ALJ’s attention or suggest to the ALJ that the cooperation which motivated the government’s request for a downward departure constituted a mitigating factor under 42 C.F.R. § 1001.102(c)(3).  *See*Pet. Informal Br. at 11.  Because Petitioner could have raised that issue before the ALJ but did not, we do not consider the issue and accordingly affirm the ALJ’s finding that Petitioner failed to establish that her cooperation is a mitigating factor.  *Cf.*42 C.F.R. § 1005.21(e) (providing that the Board “will not consider . . . any issue . . . that could have been raised before the ALJ but was not”).

Even if the Board were to consider the issue, the ALJ did not err in concluding that Petitioner failed to present evidence establishing the mitigating factor under section 1001.102(c)(3).  ALJ Decision at 7 (“Petitioner did not provide evidence that her cooperation resulted in others being convicted or excluded, other cases being investigated, or civil monetary penalties imposed.”).  The sentencing transcript does not show that Petitioner’s “substantial assistance” satisfied any of the conditions under section 1001.102(c)(3).  As 42 C.F.R. § 1001.102(c)(3) provides, an individual’s “cooperation with” (or assistance to) federal or state authorities may not be regarded as a mitigating factor in assessing the reasonableness of an exclusion period unless the cooperation has resulted in:  (1) others being convicted or excluded from federal health

Page 12

care programs; (2) “[a]dditional cases being investigated or reports being issued by the appropriate law enforcement agency identifying program vulnerabilities or weaknesses”; or (3) the imposition of a civil money penalty or assessment.  These conditions are “designed to authorize mitigation for *significant or valuable* cooperation that yielded positive results for the state or federal government,” such as a “new case actually being opened for investigation.”  *Stacey R. Gale*, DAB No. 1941, at 10-11 (2004) (italics added); *see also Farzana Begum, M.D.*, DAB No. 2726, at 13-14 (2016) (agreeing with the analysis of an administrative law judge who found that the excluded physician did not satisfy the conditions for treating her cooperation as a mitigating factor because she failed to demonstrate that her alleged cooperation was “instrumental in obtaining” another’s conviction or that the government had opened a new case or investigation because of her cooperation), *aff’d, Begum v. Hargan*, No. 16 CV 9624, 2017 WL 5624388 (N.D. Ill. Nov. 21, 2017).

Contrary to Petitioner’s suggestion, there is nothing in the sentencing-hearing transcript indicating that the assistance she purportedly rendered, and which prompted the government’s section 5K1.1 motion, was instrumental in obtaining convictions of her co-defendants.  Statements by the prosecutor during the hearing indicate that the basis for the motion was a “lead” provided by Petitioner in another case.13  P. Ex. 1, at 4-5.  Petitioner does not allege, nor is there evidence in the record, that this “lead” resulted in the conviction or exclusion of others, or caused officials to open new cases or investigations, or resulted in any of the other outcomes specified in section 1001.102(c)(3).  The prosecutor’s statements during the sentencing hearing indicate only that Petitioner’s lead had “resulted in several interviews” from which authorities hoped to “identify a person” of interest.14  P. Ex. 1, at 5.

For all of these reasons, we find no error in the ALJ’s conclusion that Petitioner failed to prove the existence of any mitigating factors.

***c.  Evaluation of the established aggravating factors***

The ALJ concluded that a 13-year exclusion is “not unreasonable” based on the two established aggravating factors and the absence of any mitigating factor.  Petitioner does

Page 13

not address that conclusion in her appeal submission or suggest that the aggravating factors (and their underlying circumstances) fail to justify an eight-year lengthening of the statutory minimum exclusion period.  Petitioner merely asserts that the exclusion is unreasonable because it is “questionable” that she committed the offense for which she was convicted.  Pet. Appeal Br. at 2.  Because Petitioner does not dispute the ALJ’s conclusion that a 13-year exclusion is not unreasonable based on the demonstrated aggravating factors, we summarily affirm that conclusion.  *See*42 C.F.R. § 1005.21(e) (providing that the Board “will not consider any issue not raised in the parties’ [appeal] briefs”).

Even if Petitioner had raised this issue in her appeal brief, we would nonetheless conclude that both aggravating factors deserve substantial weight and adequately support the ALJ’s conclusion that a 13-year exclusion is not unreasonable.  The record reflects that the financial loss to the North Carolina Medicaid program caused or intended by Petitioner’s conduct – the first aggravating factor – was $813,276, the amount of restitution that the district court ordered Petitioner to pay as part of her sentence.  *See*P. Ex. 3 (plea agreement), at 2 (indicating that Petitioner had agreed to an offense level of 20 under the Sentencing Guidelines “because the defendant is accountable for the underlying health care fraud scheme and the amount of health care fraud loss known to or reasonably foreseeable by the defendant was $813,726”); *Rambert-Hairston* *v. United States*, No. 3:21-civ-138-RJC, 2021 WL 2110884, at *1 (W.D.N.C. May 25, 2021) (summarizing provisions of Petitioner’s plea agreement).  Notably the loss was more than 16 times the $50,000 regulatory threshold for treating program loss as an aggravating factor.  The Board has held that it is “entirely reasonable to consider a program loss amount substantially larger than the [regulatory] threshold . . . [to be] an *exceptional*aggravating factor to be accorded significant weight.”  *Eduardo Miranda, M.D.*, DAB No. 2755, at 4-5 (2016) (italics added, internal quotation marks omitted).

Petitioner’s one-year-and-one-day prison sentence is a similarly, and independently, weighty factor.  The Board has accorded “significant weight” to sentences of incarceration as short as six to nine months.  *See, e.g., Shaun Thaxter*at 36 (holding that a six-month prison sentence warranted “significant weight”); *Jeremy Robinson* at 12 (upholding a 15-year exclusion based in part on a prison sentence of one year and one day); *Jason Hollady, M.D*.**, DAB No. 1855, at 12 (2002) (characterizing a nine-month sentence of incarceration that included a period of work release as “more than a token incarceration and, in that sense, relatively substantial”); *Stacy Ann Battle, D.D.S., et al., DAB No. 1843, at 7 (2002)*(stating that placement in a halfway house constituted incarceration, and that four months in a halfway house, followed by four months of home confinement, justified lengthening the exclusion period).  In pronouncing Petitioner’s sentence, the district court commented that her offense amounted to “very serious wrongdoing” and an “abuse” of a system that “relies upon healthcare providers acting in an honorable, trustworthy way.”  P. Ex. 1, at 36-37.  That assessment, which implicates the purpose of the I.G.’s exclusion authority (to protect federal health care programs and

Page 14

program beneficiaries from “untrustworthy” individuals), further persuades us that Petitioner’s prison sentence should be accorded substantial weight as an aggravating factor.  *Cf. Eugene Goldman, M.D.*, DAB No. 2635, at 5 (2015) (noting that a term of incarceration may be considered a “reasonable proxy . . . for untrustworthiness in the context of deciding how much weight to give the aggravating factor for incarceration”).

Petitioner does not contend that a 13-year exclusion is excessive when considering the two established aggravating factors.  Nor does she cite any Board precedent suggesting that a 13-year exclusion falls outside of a “reasonable range” of exclusion periods that might be appropriate under the circumstances of this case.  She merely asserts that the exclusion is unreasonable because it is “questionable” that she committed the offense for which she was convicted.  Pet. Appeal Br. at 2.  As previously explained, Petitioner’s collateral attacks on her conviction are impermissible in these proceedings.  We hold that substantial evidence supports the ALJ’s conclusion that a 13-year exclusion is not unreasonable given the circumstances relating to the established aggravating factors and the absence of any relevant mitigating factor.

****Petitioner’s claims that the I.G. retaliated against her and submitted inaccurate information to the National Provider Data Bank are unsubstantiated and irrelevant.****Petitioner asserts that, while this case was pending before the ALJ, the I.G. retaliated against her for challenging the exclusion by “terminating her indefinitely from” federal health care programs, and that the I.G. provided inaccurate information about her to the National Provider Data Bank (NPDB).  Pet. Appeal Br. at 3, 4-5 (alleging a “recent act of retaliation by the IG terminating the petitioner indefinitely from” federal programs on March 13, 2022).  Petitioner submitted no evidence of retaliation by the I.G., and her allegation that the I.G. submitted erroneous information to the NPDB has no bearing on the validity of the challenged exclusion.15

Page 15

Conclusion

For the reasons stated above, we affirm the ALJ Decision.

Footnotes

1 The current version of the Social Security Act can be found at http://www.socialsecurity.gov/OP_Home/ssact/ssact.htm.  Each section of the Act on that website contains a reference to the corresponding United States Code chapter and section.  Also, a cross-reference table for the Act and the United States Code can be found at https://www.ssa.gov/OP_Home/comp2/G-APP-H.html.

2 For purposes of the I.G.’s regulations, the term “[i]ncarceration means imprisonment or any type of confinement with or without supervised release, including, but not limited to, community confinement, house arrest and home detention.”  42 C.F.R. § 1001.2.

3 *See, e.g., Craig Richard Wilder, M.D.*, DAB No. 2416, at 9 (2011) (noting that court-ordered restitution has “long been considered a reasonable measure” of financial loss attributable to a criminal offense); *Laura Leyva*, DAB No. 2704, at 9 (2016) (holding that a sentencing court’s restitution order was proof of program loss equal to or exceeding the threshold for applying the aggravating factor).

4 After her conviction was affirmed on direct appeal, Petitioner filed (with the district court) a motion under 28 U.S.C. § 2255 to vacate her sentence, claiming that:  (1) the district court had erred in accepting her guilty plea and refusing to consider certain evidence offered at her sentencing hearing; (2) she received constitutionally ineffective assistance of counsel; and (3) the prosecutors had engaged in prejudicial misconduct.  *See Rambert-Hairston* *v. United States*, No. 3:21-civ-138-RJC, 2021 WL 2110884 (W.D.N.C. May 25, 2021).  The district court rejected these contentions and denied the motion to vacate her sentence.  *Id.*

5 The ALJ issued these guidelines in accordance with 42 C.F.R. § 1005.15(c) and (d), which provide that “the ALJ will allocate the burden of proof as the ALJ deems appropriate” and that the “burden of persuasion will be judged by a preponderance of the evidence.”

6 In her Informal Brief, Petitioner checked “yes” in response to the question of whether she had been “convicted of an offense for which exclusion is required,” but then indicated that she disagreed with the I.G.’s finding that her offense was related to the delivery of an item or service under a federal health care program.  Pet. Informal Br. at 2.  However, Petitioner stated no reasons for the disagreement (despite being prompted to do so) and instead proceeded to question the validity of her conviction.  *Id.*at 2-3.

7 Petitioner made this allegation in a memorandum that she appended to her hearing request and later submitted as her Exhibit 16.  Petitioner stated in the memorandum that, on July 6, 2017 (approximately 21 months before the government filed the Bill of Information), “FBI Agents visited her employment” to investigate the owners of TBHC, and that she “was very cooperative with the agents and provided a significant number of documents and emails to the agents during this time.”  P. Ex. 16, at 3.  Petitioner did not submit or cite any evidence substantiating that statement, nor did she contend before the ALJ that her cooperation with the FBI in July 2017 constituted a relevant mitigating factor under section 1001.102(c)(3)(i)-(iii).

8 While the regulations do not afford the parties a right to file reply briefs, they allow the Board to permit them to do so.  42 C.F.R. § 1005.21(c).

9 Neither finding appears to be factually unfounded or legally erroneous in any event.  The ALJ’s finding that Petitioner’s offense was related to the delivery of an item or service under Medicaid is consistent with Board precedent.  The Board has held that offenses (such as Petitioner’s) involving false billing, or the facilitation of false billing, of a federal health care program are “related to the delivery of an item or service” under that program.  *Yolanda Hamilton, M.D.*, DAB No. 3061, at 11 (2022); *Olandis Moore*, DAB No. 2963, at 5 (2019); *Clemenceau Theophilus Acquaye*, DAB No. 2745, at 4-5 (2016); *Douglas Schram, R.Ph.*, DAB No. 1372, at 6-9 (1992).

10 A reasonable range means “a range of exclusion periods that is more limited than the full range authorized by the statute and that is tied to the circumstances of the individual case.”  *Jeremy Robinson*at 5 (internal quotation marks omitted).

11 Petitioner does not contend that the circumstances she characterizes as mitigating factors are related to either of the established aggravating factors.

12 Section 5K1.1 provides that “[u]pon motion of the government stating that the defendant has provided substantial assistance in the investigation or prosecution of another person who has committed an offense, the court may depart from the guidelines.”  U.S. Sentencing Guidelines Manual § 5K1.1 (U.S. Sentencing Comm’n 2021) (available at https://www.ussc.gov/sites/default/files/pdf/guidelines-manual/2021/GLMFull.pdf).

13 The prosecutor alluded at the hearing to a memorandum supporting the government’s section 5K1.1 motion (P. Ex. 1, at 4), but Petitioner did not submit a copy of that memorandum.

14 The prosecutor at one point described Petitioner’s assistance as being related to a “particular investigative opportunity that the government was previously unaware of.”  P. Ex. 1, at 4.  It is unclear from this brief, vague statement whether Petitioner’s assistance led authorities to open a new case or new investigation; the referenced “investigative opportunity” may well have arisen in the context of an existing case or investigation.  In any event, Petitioner does not allege in her appeal brief that her assistance resulted in the opening of new cases or investigations.

15 Petitioner submitted a NPDB report reflecting her criminal conviction and other information, *see*P. Ex. 10, but she does not indicate what, if any, information in the report is inaccurate.  If a provider believes that a NPDB report is inaccurate, then the provider may dispute the report by following the process specified on the NPDB’s website, available at https://www.npdb.hrsa.gov/faqs/d5.jsp (link titled “What If I Disagree With My Report”).  The Board has no authority to resolve disputes about information in a NPDB report.
  
          /s/
        Michael Cunningham

                      Board Member
          /s/
        Constance B. Tobias

                      Board Member
          /s/
        Christopher S. Randolph

                      Presiding Board Member Back to top
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