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                              Afzal Beemath, M.D., DAB CR6364 (2023)
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Afzal Beemath, M.D., DAB CR6364 (2023)








  
  
    

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





Afzal Beemath, M.D.
(O.I. File No.: 5-16-40153-9),
Petitioner,

v.

The Inspector General.
Docket No. C-22-763Decision No. CR6364September 29, 2023

        
              
    

      DECISION

The Inspector General (IG) of the United States Department of Health and Human Services excluded Afzal Beemath, M.D. (Petitioner), from participation in Medicare, Medicaid, and all other federal health care programs for 20 years pursuant to section 1128(a)(4) of the Social Security Act (Act) (42 U.S.C. § 1320a-7(a)(4)).  The IG’s exclusion of Petitioner is the result of Petitioner’s conviction of conspiracy to unlawfully prescribe controlled substances and unlawful prescription of controlled substances.  Petitioner’s exclusion for the minimum period of five years is required by section 1128(c)(3)(B) of the Act (42 U.S.C. § 1320a-7(c)(3)(B)).  The IG proved the presence of three aggravating factors and is therefore permitted to extend the minimum exclusion period of five years, by an additional 15 years, for a total exclusion period of 20 years.  Petitioner did not prove the presence of any mitigating factors.  For the reasons stated below, I affirm the IG’s exclusion determination under section 1128(a)(4) and find the 20-year duration of the exclusion is not unreasonable.

I.  Background and Procedural History

Petitioner is a physician who was licensed to practice medicine in the state of Michigan.  IG  Exhibits (Exs). 2 at 2; 3 at 4.  Petitioner owned and operated Afzal Beemath, M.D.,

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P.C. which marketed itself as a palliative care clinic in Lathrup Village in Oakland County, Michigan.  IG Exs. 2 at 2; 4 at 18-19.

Petitioner pleaded guilty to certain counts contained in the superseding indictment:  one count of conspiracy to possess with intent to distribute and to distribute controlled substances from January 2013 through October 2018, and 19 counts of unlawful distribution of controlled substances (by writing unlawful prescriptions) related to conduct during the time frame ranging from March 2015 to November 2017.  IG Exs. 2 at 4-7; 4 at 18-22; 6 at 1-2.

Petitioner, along with two individuals (J.R. and R.N.), conspired to prescribe controlled substances for illegitimate medical purposes from January 2013 to October 2018.  IG Exs. 2 at 4-5; 4 at 18-19.  The co-conspirators recruited patients with no legitimate medical need for pain medications to come to Petitioner’s clinic.  IG Ex. 4 at 19.  The recruited “patients” would pay cash for the office visit.  IG Ex. 2 at 2.  After a cursory examination or no examination at all, Petitioner wrote prescriptions for controlled substances including oxycodone HCl, oxymorphone, and alprazolam (Xanax) without medical necessity and outside the scope of professional medical practice for the recruited “patients.”  *Id*. at 2-3.  After filling the prescriptions, the recruited “patients” would sell all or a portion of the controlled substances to the co-conspirators in exchange for cash.  *Id*. at 4.  Petitioner required some patients to undergo a drug screen prior to issuing a prescription.  *Id*. at 3.  Petitioner prescribed controlled substances, even if the patient’s drug screen was negative for previously prescribed medications or positive for illicit controlled substances such as heroin or cocaine.  *Id*.  During the conspiracy, from 2013 through 2018, Petitioner prescribed more than 1.9 million doses of controlled substances.  *Id*. at 4.  Petitioner also distributed controlled substances by writing prescriptions outside the scope of professional practice, with no legitimate medical purpose, and by transferring prescriptions of various controlled substances to R.T. and Y.K. (specifically, for oxycodone HCl, oxymorphone, and alprazolam) from 2015 to 2017.  IG Exs. 2 at 5-7; 4 at 18-22.

On September 30, 2019, the United States District Court for the Eastern District of Michigan, Southern Division (District Court) accepted Petitioner’s guilty plea and found Petitioner guilty of one count of conspiracy to possess with intent to distribute and to distribute controlled substances in violation of 21 U.S.C. § 841(a)(1), (b)(1)(C) and 19 counts of distributing controlled substances in violation of 21 U.S.C. § 841(a)(1), (b)(1)(C).  IG Exs. 2 at 4-7; 4 at 18-23; 6 at 1-2.  On June 22, 2021, the District Court entered a judgment of conviction and Petitioner was sentenced to 120 months of incarceration per count (a total of 20 counts) to run concurrently.  IG Ex. 6 at 1-3.  Petitioner was also sentenced to supervised release for a term of three years per count to run concurrently.  *Id*. at 4.  Petitioner was assessed $2,000 in criminal monetary penalties and a fine of $20,000.  *Id*. at 7.

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Subsequently, on January 28, 2020, the Michigan Board of Medicine Disciplinary Subcommittee (MBOM), suspended Petitioner’s medical license in the state of Michigan based on violations of the Michigan Public Health Code related to his prescribing of controlled substances.  IG Ex. 3.  Petitioner was present for the proceeding before the MBOM and his counsel had withdrawn. IG Ex. 5; *see also*P. Br. at 4.  The MBOM final order provides the suspension was based on a 2017 administrative complaint, the findings of fact made in the 2019 amended proposal for decision, and the MBOM’s review of the administrative record.  IG Ex. 5 at 1.  The administrative complaint outlines Petitioner’s licensure history with the MBOM, including a 2010 complaint related to his prescription of controlled substances that was resolved through a consent order requiring a period of licensure probation.  IG Ex. 3 at 4; IG Ex. 7.  The administrative complaint and amended proposal for decision describes Petitioner’s failure to comply with standards of practice related to the prescription of controlled substances including oxycodone, oxymorphone, and alprazolam.  *See* IG Exs. 3 at 4-10; 5 at 6-11.  The amended proposal for decision outlines a pattern of prescription of controlled substances, including oxycodone, oxymorphone, and Xanax (alprazolam) from 2013 to 2018, where Petitioner disregarded discrepant drug screens from patients that he prescribed controlled substances to, continued to prescribe controlled substances, and disregarded signs of drug abuse or diversion.  *See* IG Ex. 5 at 6-10.  The MBOM found drug screens that were positive for illicit controlled substances or negative for prescribed controlled substances.  *Id*.  Discrepant drug screen results are indicative of drug abuse or diversion.  *Id*. at 7.  The MBOM’s review of Petitioner’s patient records found that he continually prescribed controlled substances to patients which discrepant results for months after receiving those results.  *Id*.  The MBOM found that Petitioner failed to exercise the requisite due care and that his license should be suspended.  IG Ex. 3 at 1-3.

By letter dated June 20, 2022, the IG excluded Petitioner under section 1128(a)(4) of the Act for 20 years because:  1) the criminal conduct occurred for a period greater than one year (42 C.F.R. § 1001.102(b)(2)); 2) the sentence imposed by the court included incarceration (42 C.F.R. § 1001.102(b)(5)); and 3) Petitioner has been the subject of any other adverse action by any government agency or board based on the same set of circumstances that serves as the basis for the exclusion, because the Michigan Board of Medicine suspended Petitioner’s license to practice medicine (42 C.F.R. § 1001.102(b)(9)).  IG Ex. 1.

Petitioner filed a request for hearing (RFH) on August 21, 2022.  I conducted a prehearing telephone conference on October 5, 2022, the substance of which I memorialized in my Order issued October 7, 2022, including a schedule for submission of arguments and evidence by the parties.  The IG submitted her prehearing exchange composed of a prehearing brief (IG Br.), nine exhibits (IG Exs. 1-9), and a reply (IG Reply).  Petitioner submitted his prehearing exchange composed of a prehearing brief (P. Br.) and one composite exhibit (P. Ex. A).

Page 4

Petitioner was also permitted to file a surreply, which was initially due on March 17, 2023 in accordance with my October 7, 2022 Order.  In the intervening time, there have been a number of extensions to Petitioner’s surreply deadline as a result of issues with mail and access thereto at the facility where Petitioner has been incarcerated.  Most recently, Petitioner’s surreply deadline was extended to September 11, 2023.  Petitioner has not filed his surreply as of the date of this decision and has not otherwise requested an extension.  Moreover, Petitioner’s surreply was to be limited to “any new matters the IG raised in the reply brief that Petitioner had not raised in his prehearing exchange.”  October 7, 2022 Order at 2.  Upon review of the IG’s Reply, I find that the IG has not raised any new matters that Petitioner had not raised in his prehearing exchange.  Therefore, given the missed significantly extended deadline and the lack of new issues raised in the IG’s Reply, I am closing the record in this matter at this time.

II.  Jurisdiction

Petitioner timely requested a hearing, and 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).

III.  Issues

The Secretary of the U.S. Department of Health and Human Services (Secretary) has, by regulation, limited my scope of review to two issues:  Whether the IG has a basis for excluding Petitioner from participating in Medicare, Medicaid, and all other federal health care programs and, if so, whether the length of the exclusion imposed by the IG is unreasonable.  *See*42 C.F.R. § 1001.2007(a)(1).

IV.  Exhibits

Petitioner did not object to the IG’s proposed exhibits, and I therefore admit IG Exhibits 1-9 into evidence.

The IG objects to Petitioner’s proposed Exhibit A as irrelevant to the issues before me: whether the IG had a legal basis to exclude Petitioner and whether the duration of the exclusion is reasonable.  *See*IG Reply at 2.  Petitioner’s Exhibit A consists of a compilation of sub-appendices marked A-N and consist of various complaints Petitioner has made regarding the failure of McDowell Federal Correctional Institute (FCI) to properly and timely handle Petitioner’s legal mail along with other supporting documents since he has been incarcerated there.  The supporting documents include Program Statements on mail handling, copies of envelopes evidencing that they are marked “Legal Mail – Open in the Presence of Inmate,” and emails with Petitioner’s criminal appeals counsel referencing trouble with legal mail delivery and counsel explaining that a deadline for seeking en banc review had passed as a result.

Page 5

I sustain the IG’s objection to Petitioner’s Exhibit A, and I find it inadmissible as irrelevant to the proceeding before me.  While the issues pertaining to legal mail delivery delay and improper handling are significant, they do not relate to the issues for which I have the authority to adjudicate as described above and articulated in greater detail below.

V.  Decision on the Written Record

In a March 18, 2023 email following the submission of Petitioner’s prehearing exchange, Petitioner requested an oral hearing and proposed himself as a witness along with all of the patients listed in the charges against him and in the MBOM complaint.  Petitioner requests an oral hearing so that Petitioner can directly recount the facts of the underlying criminal conviction since he “know[s] all his patients better than any other expert” and to argue that he failed to receive due process at the MBOM proceeding.  *Id.* In its reply, the IG objects to Petitioner’s request on three grounds:  (1) that the testimony will include an impermissible collateral attack on Petitioner’s conviction, (2) the request was submitted past the date that Petitioner’s prehearing exchange was due, March 17, 2023, and (3) this request does not include “a list of all proposed fact and expert witnesses along with a brief summary of the testimony that the party anticipates each proposed witness will provide” in accordance with my Standing Prehearing Order (SPO).  IG Reply at 2-3.

I find that an oral hearing on the merits of this exclusion is unnecessary in light of the completeness of the written record, the reasons provided by Petitioner in requesting an oral hearing, and the failure to provide a summary of the testimony and other required information for the other generally proposed witnesses.  Petitioner’s summary of the testimony he would provide at an oral hearing amount to a collateral attack on his conviction which is impermissible under the current regulations and Board decisions.  42 C.F.R. § 1001.2007(d); *Natalie Galbo, R.N.*, DAB CR4347 at 6 (2015) (concluding that the petitioner is “bound by the facts she agreed to as part of her plea agreement” and her attempt to dispute those facts is an impermissible collateral attack).  Additionally, I have no authority or jurisdiction to hear alleged due process violations that occurred in other forums such as at the MBOM.  I am bound by the facts as recited in Petitioner’s plea agreement and by the outcomes at the District Court and the MBOM in reaching my decision in the exclusion matter presently before me.

VI.  Applicable Law

Section 1128(f) of the Act (42 U.S.C. § 1320a-7(f)) establishes Petitioner’s right to a hearing by an administrative law judge (ALJ) and judicial review of the final action of the Secretary.  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.

Page 6

The Secretary shall exclude an individual from participation in Medicare, Medicaid, and all other federally funded health care programs if that individual:

[H]as 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); Act § 1128(a)(4).  The Secretary has promulgated regulations implementing this provision of the Act.  42 C.F.R. § 1001.101(d).

An individual has been “convicted” of a criminal offense “when 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.”  Sections 1128(i)(1) and (i)(3) of the Act; *see* 42 C.F.R. § 1001.2.

Section 1128(c)(3)(B) of the Act provides that an exclusion imposed under section 1128(a) of the Act will be for a period of no fewer than five years.  Pursuant to 42 C.F.R. § 1001.102(b), an individual’s period of exclusion may be extended based on the presence of specified aggravating factors.  Only if the aggravating factors justify an exclusion of longer than five years, however, are mitigating factors considered as a basis for reducing the period of exclusion to no less 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, and the IG bears the burden on all other issues.  42 C.F.R. § 1005.15(b), (c).

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

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

**A. The IG established a basis for Petitioner’s exclusion pursuant to section 1128(a)(4) of the Act (42 U.S.C. § 1320a-7(a)(4)).**

**1. Petitioner was convicted of a felony occurring after August 21, 1996.**

Here, Petitioner does not contest that the IG has a basis to exclude him from participation in federal health care programs under section 1128(a)(4) of the Act, but rather he requests that I delay deciding this matter until he receives a decision on his request that his underlying conviction be vacated.  *See generally* RFH; P. Br.  Petitioner does not dispute

Page 7

that he was convicted of one count of conspiracy to possess with intent to distribute and to distribute controlled substances in violation of 21 U.S.C. § 841(a)(1), (b)(1)(C), and 19 counts of distributing controlled substances in violation of 21 U.S.C. § 841(a)(1), (b)(1)(C).  P. Br. at 1-2; IG Ex. 2 at 4-7; IG Ex. 4 at 18-23; IG Ex. 6 at 1-2.  Petitioner’s criminal convictions were felonies.  *See* IG Ex. 4 at 14.

On June 22, 2021, the United States District Court for the Eastern District of Michigan, Southern Division (District Court) entered judgment against Petitioner and sentenced Petitioner to 120 months of incarceration per count to run concurrently.  IG Ex. 6 at 1-3.  An individual has been “convicted” within the meaning of the Act when a guilty plea has been accepted by a Federal court or a judgement of conviction has been entered against the individual by a Federal court, regardless of whether there is an appeal pending.  *See* Section 1128(i) of the Act (42 U.S.C. § 1320a-7(i)).

A criminal offense is a felony if the maximum term of imprisonment authorized is greater than one year.  *See* 18 U.S.C. § 3559(a).  Petitioner was convicted of 19 counts of violating 21 U.S.C. § 841(a)(1) and one count of conspiracy to violate 21 U.S.C. § 841(a)(1), each count of which carry a maximum penalty of 20 years.  *See* IG Ex. 6 at 1-2; 21 U.S.C. § 841(b)(1)(C).  Thus, Petitioner was convicted of felony criminal offenses.

I therefore find that Petitioner was convicted of felonies occurring after August 21, 1996.

**2. Petitioner was convicted of a felony relating to the unlawful manufacture, distribution, prescription, or dispensing of a controlled substance.**

Petitioner does not contest that his felony convictions relate to the unlawful prescription of a controlled substance under Section 1128(a)(4) of the Act.  *See*October 7, 2022 Order at 1.  Both the statute on its face (21 U.S.C. § 841(a)(1)) as well as the underlying facts outlined above fit squarely within the scope of Section 1128(a)(4) of the Act.  *See*IG Exs. 2, 4.  I find that Petitioner’s felony convictions clearly relate to the unlawful prescription of a controlled substance.

However, Petitioner is currently seeking the withdrawal of his guilty plea and asks that this proceeding be held in abeyance until a final determination is rendered on his motion to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255 that is currently pending before the District Court.  *See*October 7, 2022 Order at 1;P. Br. at 6.  Section 1128(i) of the Act states that when a guilty plea has been accepted by a Federal court or when a judgement of conviction has been entered against the individual by a Federal court, a conviction has occurred within the meaning of the Act.  Because Petitioner’s guilty plea was accepted and a judgment of conviction was entered against him, Petitioner remains convicted for the purposes of exclusion, even with a pending motion to

Page 8

withdraw his plea.  Under section 1128(i)(1) of the Act, Petitioner remains convicted regardless of whether there is an appeal pending.  Importantly, proceeding with a determination in this proceeding does not in any way hamper Petitioner from requesting the withdrawal of his exclusion and retroactive reinstatement if his conviction is reversed or vacated on appeal.  42 C.F.R. § 1001.3005.  Because of this protection, there is no basis to delay these proceedings.

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

Because I have concluded that a basis exists to exclude Petitioner pursuant to 42 U.S.C. § 1320a-7(a)(4), he must be excluded for a minimum of five years.  42 U.S.C. § 1320a‐7(c)(3)(B).

**C. The IG has established three aggravating factors which together permit the IG to lengthen the exclusion beyond the five-year statutory minimum.**

In relevant part, the following factors may be considered to be aggravating and a basis for lengthening the period of a mandatory exclusion under section 1128(a)(4):

(2)  The acts that resulted in the conviction, or similar acts, were committed over a period of one year or more;

* * * *

(5)  The sentence imposed by the court included incarceration;

* * * *

(9)  The individual or entity has been the subject of any other adverse action by any Federal, State or local government agency or board if the adverse action is based on the same set of circumstances that serves as the basis for the imposition of the exclusion.

42 C.F.R. § 1001.102(b)(2), (5), and (9).

The IG bears the burden of establishing aggravating factors.  42 C.F.R. § 1005.15(c).  The IG has met its burden with respect to the three aggravating factors which together permit the IG to lengthen the exclusion beyond the five-year statutory minimum, as discussed below.

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**1. The IG established that the acts that resulted in Petitioner’s conviction were committed over a period of one year or more.**

Under 42 C.F.R. § 1001.102(b)(2), the IG may extend the length of an exclusion if “the acts that resulted in the conviction, or similar acts, were committed over a period of one year or more.”

Petitioner was convicted of criminal offenses whose duration was five years and spanned the period from January 2013 through October 2018.  *See* IG Exs. 2 at 5-6; 6 at 1.  The IG considered a subset of this time period, January 2013 to November 2017, slightly more than four years, to determine that the aggravating factor was present and to support the period of exclusion.  *See* IG Exs. 4 at 18-19, 6 at 1-2.  Petitioner does not contest this aggravating factor.  P. Br. at 3-4.  Accordingly, the IG established a basis for application of the aggravating factor set forth at 42 C.F.R. § 1001.102(b)(2).

**2. The IG established that Petitioner’s sentence included incarceration.**

The Petitioner was sentenced to 120 months of imprisonment for each of the 20 felony counts related to the unlawful prescription of a controlled substance under Federal law, to run concurrently.  IG Ex. 6 at 1-3.  Petitioner does not contest this aggravating factor.  P. Br. at 3-4.  Petitioner’s sentence of incarceration meets the requirements of 42 C.F.R. § 1001.102(b)(5).

**3. The IG established that Petitioner has been subjected to an adverse action by a state government board based on the same set of circumstances that form the basis for the imposition of the exclusion.**

Under 42 C.F.R. § 1001.102(b)(9), the IG may consider any adverse action against Petitioner by a state government agency or by a state government board based on the same set of circumstances that form the basis for the imposition of the exclusion as an aggravating factor when extending the length of exclusion beyond five years.

Petitioner’s medical license was suspended by the MBOM, a state government licensing board, based on his improper prescription of controlled substances, including oxycodone, oxymorphone, and Xanax (alprazolam) from 2013 to 2018, the same controlled substances and time period that led to the Federal criminal offenses that serve the basis for his exclusion, conspiracy to possess with intent and to distribute controlled substances and distribution of controlled substances.  *See* IG Ex. 3 at 1-4; 6-9; IG Ex. 5 at 6-10.  The MBOM considered Petitioner’s practice of prescribing these controlled substances to patients with discrepant drug screens, including those who tested negative for prescribed controlled substances and/or positive for illicit controlled substances when determining

Page 10

his license should be suspended.  IG Ex. 5 at 7-10.  This same conduct was a basis for Petitioner’s conviction of conspiracy.  IG Ex. 2 at 3.

While Petitioner does not dispute that the MBOM suspended his license to practice medicine based on the same set of circumstances that underlie his criminal conviction, he argues that his due process rights in the proceeding before the MBOM were infringed.  P. Br. at 4.  Petitioner alleges that the MBOM proceeding suspending his license violated his due process rights as it occurred in absentia and after his counsel had withdrawn.  *Id*.  Even if true that the MBOM violated Petitioner’s due process rights, I do not have the authority to adjudicate collateral constitutional due process attacks on proceedings at the MBOM or other forums.  Since the suspension currently stands and has not been withdrawn, I cannot separately make a determination in this exclusion proceeding that the MBOM suspension was the result of an unconstitutional proceeding and therefore should not qualify as an aggravating factor.

Accordingly, the IG established a basis for application of the aggravating factor set forth at 42 C.F.R. § 1001.102(b)(9).

**4. There are no mitigating factors applicable in this case.**

If any of the aggravating factors authorized by 42 C.F.R. § 1001.102(b) that permit the IG to impose an exclusion of longer than five years apply, as they do in this case, then mitigating factors may be considered as a basis for reducing the period of exclusion to no less than five years.  42 C.F.R. § 1001.102(c).  The only authorized mitigating factors that I may consider are listed in 42 C.F.R. § 1001.102(c):

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

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

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

Page 11

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

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

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

Petitioner has the burden of proving any mitigating factors and affirmative defenses.  42 C.F.R. § 1005.15(c); Standing Prehearing Order ¶ 5.  Although Petitioner contests the 20-year duration of the exclusion, Petitioner has not argued or presented any evidence to support mitigating factors that can be considered under 42 C.F.R. § 1001.102(c).

**D. Given the specific facts pertaining to the applicable aggravating factors, a 20-year exclusion period is not unreasonable.**

The role of the ALJ in exclusion cases is to conduct a *de novo*review of the facts related to the basis for the exclusion and the existence of aggravating and mitigating factors identified at 42 C.F.R. § 1001.102 and to determine whether the period of exclusion imposed by the IG falls within a reasonable range.  42 C.F.R. § 1001.2007(a)(1)(ii); *Craig Richard Wilder*, DAB No. 2416 at 8 (2011); *Joann Fletcher Cash*, DAB No. 1725 at 17 n.6 (2000).

While the IG is not compelled to extend the length of exclusion for any period beyond five years in the presence of aggravating factors, it may choose to exercise its discretion to do so.  42 C.F.R. § 1001.102(b) (“Any of the following factors **may**be considered to be aggravating and a basis for lengthening the period of exclusion.” (emphasis supplied)).  An ALJ must uphold the IG’s determination as to the length of exclusion unless it is unreasonable, and an ALJ has no authority to change the amount of time chosen by the IG if it is within a reasonable range.  42 C.F.R. § 1001.2007(a)(1)(ii); 57 Fed. Reg. 3298, 3321 (Jan. 29, 1992).

“[T]he assessment of aggravating and mitigating factors is qualitative, focusing on the circumstances of the case at hand, rather than quantitative or a matter of mathematical formulas . . . .”  *Sushil Aniruddh Sheth, M.D.*, DAB No. 2491 at 8 (2012).  In reviewing whether an exclusion duration in excess of the statutory minimum is unreasonable, “[c]omparisons with other cases are not controlling and of limited utility” because aggravating and mitigating factors “must be evaluated based on the circumstances of a particular case . . . which can vary widely.”  *Robert Hadley Gross*, DAB No. 2807 at 2, 6 (2017) (internal quotation marks omitted); *see also Edwin L. Fuentes*, DAB No. 2988 at

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15 (2020), *aff’d*, No. 4:20-cv-00026, 2021 WL 4341115 (W.D. Va. Sept. 23, 2021) (“The Board has repeatedly explained that comparing exclusion periods is not generally helpful in assessing reasonableness, due in part to the varying mix of factors and wide range of relevant circumstances that may need to be considered in individual cases.”).

Here, the IG has established three aggravating factors— two of which Petitioner does not dispute— and Petitioner has established no mitigating factors.  Furthermore, Petitioner does not dispute the weight the IG assigned to the aggravating factors in determining the length of the exclusion period.  With respect to the duration of criminal conduct, the Board has found that a prolonged duration of criminal conduct warrants a longer exclusion period.  *See Valentine Okonkwo*, DAB No. 2832 at 5 (2017) (holding three years engaged in a plan to dispense oxycodone supported a 40-year exclusion period).  Petitioner’s conduct, occurring over a period of at least four years, from January 2013 through at least November 2017, significantly exceeds the one-year minimum for the IG to consider the aggravating factor and supports the 20-year period of exclusion.  *See* IG Exs. 4 at 18-19; 6 at 1-2.

As to the imposition of a sentence including incarceration, this tribunal has found that “[w]hile any period of incarceration, by regulation, justifies increasing the period of exclusion, the Board has repeatedly held that longer periods of incarceration are relevant in determining whether a period of exclusion is reasonable. Generally, the longer the jail time, the longer the exclusion because a lengthy sentence evidences a more serious offense.” *Jason RH Castle, M.D.,* DAB CR6112 at 7 (2022) (holding an exclusion period of 8 years following a sentence of 22 months incarceration reasonable) (citing to *Eugene Goldman, M.D. a/k/a Yevgeniy Goldman, M.D.*, DAB No. 2635 at 6 (2015)).  While sentencing judges do not directly assess untrustworthiness for purposes of exclusion from Federal healthcare programs, the factors that contribute to the selection of a criminal sentence, including the nature of the crime, are reasonable proxy markers for untrustworthiness in the context of deciding how much weight to give the aggravating factor for incarceration.  *See Christopher Switlyk*, DAB No. 2600 at 4 (holding a 20-year exclusion reasonable when the period of incarceration, 108 months, demonstrated that the crime was very serious and indicative of a highly untrustworthy individual from whom Federal health care programs and their beneficiaries must be protected for an extended period).  Petitioner here was sentenced to 120 months for each of the 20 felony counts related to the unlawful prescription of a controlled substance under Federal law to run concurrently.  *See*IG Ex. 6 at 1-3.  This is a substantial period of incarceration, indicative of a serious crime and a high risk of untrustworthiness, justifying the imposition of a longer exclusion period.

Lastly, Petitioner’s loss of a medical license based on the same set of circumstances that served the basis for the exclusion is also a reasonable reason for lengthening the exclusion period.  *See Castle*, DAB No. CR6112 at 7-8 (explaining the regulation permits lengthening of the exclusion period based on an adverse state board action); 42 C.F.R.

Page 13

§ 1001.102(b)(9).  Petitioner was subject to an adverse action from the MBOM for the same set of circumstances (improper prescription of controlled substances, including oxycodone, oxymorphone, and Xanax (alprazolam) from 2013 to 2018) that form the basis for his exclusion.

In light of the evidence supporting the three aggravating factors and the absence of any mitigating factors, I therefore must conclude that the IG’s assessment of a 20-year exclusionary period is not unreasonable.

VIII. Conclusion

I affirm the IG’s determination to exclude Petitioner for 20 years from participating in Medicare, Medicaid, and all other federal healthcare programs pursuant to 42 U.S.C. § 1320a-7(a)(4), and I find that the length of the exclusion imposed by the IG is not unreasonable.
  
          /s/
        Jacinta L. Alves

                      Administrative Law Judge Back to top
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