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# John Krawczyk, DAB CR6223 (2023)

----

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

## John Krawczyk(OI File No. 3-18-40234-9),Petitioner,

## v.

## The Inspector General.

### Docket No. C-22-487Decision No. CR6223January 26, 2023

## DECISION

Petitioner, John Krawczyk, pleaded guilty to the felonies of conspiring to pay kickbacks in connection with a federal health care program and paying kickbacks in connection with a federal health care benefit program.  Petitioner co-owned, with a co-conspirator, companies that enrolled in the Medicare program as durable medical equipment, prosthetics, orthotics and supplies (DMEPOS) suppliers.  Petitioner and the co‐conspirator made an agreement with the owner of an international call center (another co‐conspirator), operated in the Philippines, that they would pay money each time the call center obtained a physician order for a Medicare beneficiary to receive an orthotic brace.  Upon filling those orders, Petitioner’s companies billed the Medicare program for the orthotic braces and, from those Medicare reimbursement payments, paid the owner of the international call center as agreed.  From about September 2015 until about December 2018, Petitioner and the co-conspirator submitted to the Medicare program claims for reimbursement in the approximate amount of $7,700,000 and received payments for more than $4 million based on those claims. 

After pleading guilty, the United States District Court for the Eastern District of Pennsylvania (District Court) sentenced Petitioner to one day of incarceration, three years

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of supervised release, and $50,000 in fines.  The District Court also found Petitioner to be jointly and severally liable, along with his co-conspirators, for paying restitution to the Medicare program for the more than $4 million in payments made to them. 

Due to the conviction, and the circumstances surrounding the conviction (i.e., the length of time Petitioner engaged in criminal conduct, the amount of loss to the Medicare program, and his sentence to incarceration), the Inspector General of the United States Department of Health and Human Services (IG) excluded Petitioner from participation in federal health care programs for 21 years.  Petitioner sought review administrative law judge review of the length of exclusion imposed, alleging that mitigating circumstances (i.e., cooperation with law enforcement and the presence of a mental or emotional condition that reduced his culpability) were present.  The IG agreed and, during the pendency of this appeal, reduced the length of exclusion to 14 years.  However, Petitioner believes that the five-year statutory minimum length of exclusion, and not 14 years, is warranted in this case. 

Based on my analysis below of the aggravating and mitigating factors in this case, I conclude that the IG’s determination to impose a 14-year length of exclusion on Petitioner is not unreasonable.  Therefore, I affirm the 14-year exclusion in this case. 

### I.  Background

In a February 28, 2022 notice, the IG informed Petitioner that he was being excluded from participation in all federal health care programs under section 1128(a)(1) of the Social Security Act (42 U.S.C. § 1320a-7(a)(1)) for a period of 21 years.  This exclusion was “due to [Petitioner’s] conviction . . . in the United States District Court for the Eastern District of Pennsylvania, 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 items or services under any such program.”  The IG stated that the exclusion would be effective 20 days from the date of the notice.  IG Ex. 1. 

The IG stated that, based on the following aggravating circumstances, the exclusion would extend beyond the minimum five years required under the statute: 
                            - 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 entire amount of financial loss to such government agencies or programs or to other entities, including any amounts resulting from similar acts not adjudicated, will be considered regardless of whether full or partial

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restitution has been made.)  The court ordered [Petitioner] to pay approximately $4,003,200 in restitution.  
                            - The acts that resulted in the conviction, or similar acts, were committed over a period of one year or more.  The acts occurred from about September 2015 to about December 2018. 
                            - The sentence imposed by the court included incarceration.  The court sentenced [Petitioner] to one day of incarceration. 

IG Ex. 1 at 1; *see* 42 C.F.R. § 1001.102(b)(1), (2), (5). 

Petitioner filed a request for an administrative law judge hearing, which was received on April 27, 2022, to dispute the length of exclusion.  Petitioner also submitted a brief and eight exhibits.  Electronic Filing System (E-File) Document Nos. 1, 1b. 

[Redacted]

On April 29, 2022, the Civil Remedies Division (CRD) acknowledged Petitioner’s hearing request, informed the parties that I would hold a prehearing conference on May 24, 2022, and issued my Standing Prehearing Order.  

On May 24, 2022, I held a telephonic prehearing conference, the substance of which is summarized in my May 24, 2022 Order Following Prehearing Conference and Setting Schedule for Prehearing Submissions.  I directed Petitioner to file his prehearing

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exchange first because the primary factual dispute in this case involves the existence of the mitigating circumstances alleged by Petitioner.  I also provided extended deadlines for the submission of exchanges to permit Petitioner time to obtain more evidence to support his claimed mitigating circumstances.  In addition, I provided information as to how the parties could file documents under seal/request restricted access to those documents.  Finally, the parties tentatively waived their appearance at an oral hearing, which would result in a decision based on the written record.  *See* 42 C.F.R. § 1005.6(b)(5). 

After receiving additional time to file his exchange, on September 7, 2022, Petitioner filed a brief (P. Br.) and nine proposed exhibits under seal (P. Exs. 1-9). 

On November 30, 2022, the IG issued a notice that she was reducing Petitioner’s length of exclusion to 14 years.  42 C.F.R. § 1001.2002(e).  The IG stated that, based on further review, the IG determined that two mitigating factors are present in this case as alleged by Petitioner in his hearing request (i.e., 42 C.F.R. § 1001.102(c)(2), (3)).  IG Ex. 2. 

After also receiving additional time to file a prehearing exchange, on December 8, 2022, the IG submitted a prehearing brief (IG Br.) and eight proposed exhibits.  The IG filed the brief, exhibit list, and four of the proposed exhibits under seal. 

On December 14, 2022, I ordered restricted access to the following documents (as identified by their E-File document numbers):  E-File Document Nos. 1b, 8, 10-14, 16-17, 22-23, and 27-30.  I restricted access to these documents because the documents were subject to seal by the District Court.  The District Court issued orders releasing the documents for the sole purpose of permitting this adjudication. 

On December 22, 2022, Petitioner filed a reply brief (P. Reply) and requested that I seal it. 

### II.  Restricted Access to Record and Redaction of this Decision

As stated above, the District Court sealed many records in Petitioner’s criminal case and only authorized the release of some of those records for the purpose of adjudicating this matter.  *See* E-File Document No. 19 at 4; E-File Document No. 32 at 6; P. Ex. 5 at 34-35.  As a result, I restricted access to E-File Document Nos. 1b, 8, 10-14, 16-17, 22-23, and 27-30.  For the same reason, I grant Petitioner’s request and order restricted access, under the same terms stated in my December 14, 2022 Order Restricting Access to Documents Filed Under Seal, to Petitioner’s reply brief (E-File Document No. 34).  42 C.F.R. § 1005.18(c). 

Further, before this decision is made public, I direct CRD to redact all text that references information from documents for which I have restricted access.  42 C.F.R. § 1005.18(d). 

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### III.  Admission of Evidence

I admit IG Exhibits 1 through 8 and Petitioner Exhibits 3, 5, 7, and 9, without objection. *See* 42 C.F.R. § 1005.8(c).  Further, I overrule the IG’s objection to Petitioner Exhibits 4 and 8, and admit them into the record.  Finally, I sustain the objection to Petitioner Exhibits 1, 2, and 6, and exclude those exhibits from the record. 

I overrule the IG’s objection to Petitioner Exhibits 4 and 8 because both documents were part of the submissions in Petitioner’s criminal case.  P. Br. at 7, 22.  The IG objected to those documents as irrelevant because Petitioner has offered them only in support of impermissible collateral attacks on his criminal conviction.  As discussed in the decision, I agree that Petitioner uses these exhibits to make collateral attacks on his criminal conviction.  Nevertheless, I will enter them into the record because I discuss matters pertaining to them in the decision. 

I sustain the IG’s objection to Petitioner Exhibits 1, 2, and 6, because the IG’s versions of those exhibits provide more complete versions of those documents.  Petitioner did not dispute the IG’s objection.  *See* P. Reply at 5.  

### IV.  Decision on the Written Record

The parties stated at the prehearing conference that they expected to waive their right to an in-person hearing.  [Redacted]  Therefore, I decide this case based on the written record.  42 C.F.R. § 1005.16(b). 

### V.  Issue

[Redacted]  Therefore, the only issue I may consider is whether the length of the exclusion imposed by the IG is unreasonable.  42 C.F.R. § 1001.2007(a)(1)(ii). 

### VI.  Jurisdiction

I have jurisdiction to adjudicate this case.  42 U.S.C. § 1320a-7(f)(1); 42 C.F.R. § 1005.2. 

### VII.  Findings of Fact

                            - Petitioner and a co-conspirator were co-owners and operators of three DMEPOS companies for various time periods from September 2015 through December

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2018.  The companies were enrolled in the Medicare program as DMEPOS suppliers.  IG Ex. 3 at 3; IG Ex. 4 at 4-5. 
                            - On September 10, 2019, the United States Attorney for the Eastern District of Pennsylvania filed a two-count Information in the District Court charging Petitioner with conspiracy to pay kickbacks in connection with a federal health care program (18 U.S.C. § 371), kickback payments in connection with a federal health care benefit program (42 U.S.C. § 1320a-7b(b)(2)(B)), and aiding and abetting (18 U.S.C. § 2).  IG Ex. 3. 
                            - The Information alleged the following in support of Count One:  “From at least in or about September 2015 until in or about December 2018, in the Eastern District of Pennsylvania, and elsewhere, [Petitioner] conspired and agreed, together with Individual 1, Individual 2, and others known and unknown to the United States Attorney, to knowingly and willfully offer and pay, and cause to be offered and paid, remuneration, that is kickbacks, directly and indirectly, overtly and covertly, to any person to induce such person to purchase, lease, order, and arrange for and recommend purchasing, leasing, and ordering any good, facility, service, or item for which payment may be made in whole or in part under a Federal health care program, in violation of [42 U.S.C. §] 1320a-7b(b)(2)(B).”  IG Ex. 3 at 4.   	 
                            - The Information alleged the following in support of Count Two:  “On May 15, 2018, in the Eastern District of Pennsylvania and elsewhere, [Petitioner], knowingly and willfully offered to pay, paid, and caused to be offered and paid, and aided and abetted the payment of, remuneration, that is kickbacks, directly and indirectly, overtly and covertly, in the approximate amount of $10,500 via international wire transfer from the originating account . . . ending in 3269 to Company A’s bank account ending 0843, belonging to Individual 2, to induce such person to purchase, lease, order, and arrange for and recommend the purchasing, leasing, and ordering of any good, facility, service, and item, for which payment may be made in whole or in part under a Federal health care program, namely, Medicare.  All in violation of [42 U.S.C. §] 1320a-7b(b)(2)(B), and [18 U.S.C. §] 2.”  IG Ex. 3 at 8.   	 
                            - The Information alleged the following facts, to support both counts in the Information.  Petitioner and another individual falsely certified to the Medicare program that they, as enrolled providers in the Medicare program, would abide by Medicare laws and regulations, including the Anti-Kickback Statute.  Petitioner and another individual paid kickbacks to obtain prescriptions for braces for Medicare beneficiaries.  Petitioner and another individual submitted or caused the submission of more than

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$7,705,168 in DME claims to the Medicare program, “which resulted in a net benefit conferred of approximately $4,003,248.”  IG Ex. 3 at 5-6, 8. 

[Redacted]

Page 8

[Redacted] 

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[Redacted] 
                            - On June 7, 2021, the District Court issued a Judgment in A Criminal Case, which indicated the following: 
                            - Petitioner pleaded guilty to Counts One and Two of the Information.  P. Ex. 7 at 1.   	 
                            - The District Court adjudged Petitioner guilty of Counts One and Two of the Information.  P. Ex. 7 at 1.   	 
                            - The District Court sentenced Petitioner to imprisonment for one day as to Counts One and Two to run concurrently.  P. Ex. 7 at 2.   	 
                            - The District Court sentenced Petitioner to supervised release for three years as to Counts One and Two to run concurrently.  P. Ex. 7 at 3.   	 
                            - The District Court ordered Petitioner to pay a $50,000 fine.  P. Ex. 7 at 6.   	 

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f. The District Court ordered Petitioner to pay restitution, jointly and severally with two other individuals, in the amount of $4,003,248.67 to the Centers for Medicare & Medicaid Services.  P. Ex. 7 at 6-7. 
                            - On June 7, 2021, the District Court issued a Judgment and Preliminary Order of Forfeiture, in which the District Court ordered Petitioner to forfeit $794,000 in gross proceeds he obtained from his commission of the offenses indicated in Counts One and Two of the Information.  IG Ex. 8 at 2. 

### VIII.  Conclusions of Law and Analysis

The Secretary of Health and Human Services (Secretary) must exclude an individual from participation in all federally funded health care programs when that individual “has been convicted of a criminal offense related to the delivery of an item or service under subchapter XVIII [of the Social Security Act] or under any State health care program.”  42 U.S.C. § 1320a-7(a)(1).  The Secretary has interpreted this statute to mean that an individual must be excluded when the individual “[h]as been convicted 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 items or services under any such program.”  42 C.F.R. § 1001.101(a).  Therefore, for the purposes of this case, the two essential elements to support a mandatory exclusion are:  (1) the excluded individual must have been convicted of an offense; and (2) the offense must be related to the delivery of a health care item or service under the Medicare or Medicaid programs. 

If an individual has been convicted of a crime that requires mandatory exclusion, then the Secretary must exclude the individual for at least five years.  42 U.S.C. § 1320a‐7(c)(3)(B).  However, the Secretary established, by regulation, a list of aggravating and mitigating factors that are to be considered in each case to determine whether the length of a mandatory exclusion should exceed five years.  *See* 42 C.F.R. § 1001.102(b)-(c). 

The regulations state that the preponderance of the evidence standard of proof is employed in exclusion cases.  42 C.F.R. §§ 1001.2007(c), 1005.15(d).  The regulations provide administrative law judges with the discretion to allocate who has the burden of proof in most exclusion cases.  42 C.F.R. § 1005.15(c).  I gave notice at the beginning of these proceedings that the IG had the burden of proving the existence of all alleged aggravating factors and that Petitioner had the burden of proving all mitigating factors.  Standing Prehearing Order ¶ 6. 

When reviewing the length of exclusion, an administrative law judge may only reduce the length of exclusion when the length imposed by the IG is “unreasonable.”  42 C.F.R. § 1001.2007(a)(1)(ii). 

Page 11
                            *Petitioner is subject to a mandatory exclusion for at least five years under 42 U.S.C. § 1320a-7(a)(1). *

Petitioner does not dispute that he must be excluded for a minimum of five years under 42 U.S.C. § 1320a-7(a)(1).  A review of the record indicates that there is no doubt that Petitioner is subject to a mandatory five-year exclusion. 
                            *The IG appropriately considered as an aggravating factor that Petitioner’s criminal conspiracy resulted in a 
*$4,003,200 loss to the Medicare program.  This amount is a significant factor weighing heavily in favor of an extremely lengthy exclusion. **

In the February 28, 2022 exclusion notice, the IG stated that the acts resulting in conviction, or similar acts, caused or were intended to cause, a financial loss to a government agency or program of $50,000 or more.  The IG then cited as support that “[t]he court ordered [Petitioner] to pay approximately $4,003,200 in restitution.”  IG Ex. 1 at 1.  

[Redacted]

**Page 12**

[Redacted]

**Page 13**

[Redacted]

The regulation I must apply in this case states:

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 entire amount of financial loss to such government agencies or programs or to other entities, including any amounts resulting from similar acts not adjudicated, will be considered regardless of whether full or partial restitution has been made).

42 C.F.R. § 1001.102(b)(1). 

Based on the plain reading of this regulation, I reject Petitioner’s second argument that there will be no loss to the Medicare program in the present case because full restitution will be paid.  As quoted above, the regulation establishing this aggravating factor expressly states that the payment of restitution does not affect the amount of loss.  42 C.F.R. § 1001.102(b)(1). 

Further, I conclude that Petitioner’s arguments, based on the calculation of loss in criminal cases, is inapplicable to the present case.  Petitioner did not cite any cases interpreting § 1001.102(b)(1).  In addition, the IG is correct that prior administrative decisions have consistently considered the amount of restitution ordered in a criminal case as a primary basis for calculating loss.  In fact, a prior case decision shows that an effort to claim that a program’s loss was less than the restitution amount was rejected as an impermissible collateral attack on the criminal conviction.  *Yolanda Hamilton, M.D*., DAB No. 3061 at 13-14 (2022). 

There is good reason for placing high evidentiary value on the order of restitution to determine loss to a government program.  After all, in the context of this case, the word “restitution” means: 
                            - Compensation for loss;  esp., full or partial compensation paid by a criminal to a victim, not awarded in a civil trial for

*Page 14*

tort, but ordered as part of a criminal sentence or as a condition of probation.

*“RESTITUTION,” Black’s Law Dictionary (11th ed. 2019) (emphasis added).  Therefore, while a restitution amount may not fully reflect the loss incurred by criminal conduct, it does not reflect an amount that is more than the loss incurred by the conduct.*

*[Redacted]*

*Petitioner’s efforts to claim a lower loss amount represents an impermissible collateral attack on that judgment (42 C.F.R. § 1001.2007(d)) and an effort to contradict the agreement he made with the prosecutor. *

*Petitioner’s criminal conspiracy is responsible for a loss to the Medicare program that is 80 times more than the minimum amount ($50,000) for me to consider such a loss to be an aggravating factor.  Therefore, this aggravating factor is sufficient to support an extremely lengthy exclusion. *
                            *****The IG appropriately considered as an aggravating factor that Petitioner’s criminal conspiracy spanned more than three years.  This length of time is a significant factor that strongly supports a lengthy exclusion. *****

*In the February 28, 2022 exclusion notice, the IG stated that Petitioner’s acts that resulted in the conviction, or similar acts, occurred from about September 2015 until about December 2018.  IG Ex. 1 at 1. *

[Redacted]

**Page 15**

[Redacted]

**Page 16**

[Redacted] 

I note that Petitioner was factually charged in the Information with having: 

conspired and agreed, together with Individual 1, Individual 2, and others known and unknown to the United States Attorney, to **knowingly and willfully** offer and pay, and cause to be offered and paid, remuneration, that is, kickbacks, directly and indirectly, overtly and covertly, to any person to induce such person to purchase, lease, order, and arrange for and recommend purchasing, leasing, and ordering any good, facility, service, or item for which payment may be made in whole or in part under a Federal health care program, in violation of Title 42, United States Code, Section 1320a-7b(b)(2)(B). 

IG Ex. 3 at 4 (emphasis added). 

[Redacted]

Page 17

[Redacted] 

I agree with the District Court that Petitioner was under an obligation to ensure that his business operation was legal.  The Medicare enrollment process includes the requirement that the enrollment application be signed.  It is made very clear that “[t]he signature attests that the information submitted is accurate **and that the provider or supplier is aware of, and abides by, all applicable statutes, regulations**, and program instructions.”  42 C.F.R. § 424.510(d)(3) (emphasis added).  Even if Petitioner had been simply ignorant, this would not be a reason to limit the severity of this aggravating factor.  As an enrolled DMEPOS supplier, Petitioner was obligated to ensure that he was following the law.  An ignorant supplier is a serious potential threat to the Medicare program because such ignorance can also result in improper billing practices. 

However, the District Court did not believe Petitioner’s excuses and neither do I.  Petitioner’s criminal conduct and conspiracy lasted for over three years.  During that time Petitioner and his co-conspirator billed Medicare for more than $7 million.  This serves as a significant basis to impose a lengthy exclusion. 

Page 18
                            ***The IG appropriately considered as an aggravating factor that Petitioner was sentenced to incarceration for one day.  Because the District Court thought that a fine was more appropriate than incarceration, the fact that the District Court still imposed incarceration on Petitioner provides support for lengthening the exclusion. ***

In the February 28, 2022 exclusion notice, the IG stated that the District Court’s sentence included one day of incarceration.  IG Ex. 1 at 1. 

[Redacted]

Page 19

[Redacted]

Instead of sentencing Petitioner to a lengthy incarceration, the District Court instead imposed significant punishment on Petitioner in another form. 

[Redacted]

While a fine is not an aggravating factor authorized under the regulations, I find that the reason the District Court imposed a significant fine important to my qualitative analysis of the aggravating factor involving incarceration.  The single day of incarceration is important because the District Court knew that providing for Petitioner’s imprisonment, no matter how short, was necessary based on the gravity of Petitioner’s crime.  Further, it is clear that Petitioner ought to have had a longer term, but the District Court decided instead to impose a hefty fine as a substitute for a significant period of incarceration in order to preserve Petitioner’s family.  As a result, I will not disregard Petitioner’s sentence of incarceration and I consider it additional support for the IG to lengthen the exclusion. 
                            ***The IG concedes that a mitigating factor, i.e., cooperation with federal law enforcement, is present in this case.  This is a strong mitigating factor. ***

In the November 30, 2022 notice reducing the length of exclusion, the IG stated that, upon review of information referenced in Petitioner’s appeal, the IG had determined that Petitioner’s case includes the mitigating factor that Petitioner cooperated with law enforcement that led to others being convicted and investigated.  IG Ex. 2 at 1. 

Page 20

[Redacted]

The regulatory provision for this mitigating factor states: 

(3) The individual’s or entity’s cooperation with Federal or State officials resulted in—(i) Others being convicted or excluded from Medicare, Medicaid and all other Federal health care programs,(ii) Additional cases being investigated or reports being issued by the appropriate law enforcement agency identifying program vulnerabilities or weaknesses, or(iii) The imposition against anyone of a civil money penalty or assessment under part 1003 of this chapter. 

42 C.F.R. § 1001.102(c)(3). 

[Redacted] 

Page 21

[Redacted]

Page 22

I conclude that Petitioner has met his burden to prove that his cooperation with law enforcement is a mitigating factor concerning the length of the exclusion.  As noted above, in reducing the exclusion, the IG found that this mitigating factor was present.  I also conclude that this is a strong mitigating factor.  [Redacted]  I do not conclude that Petitioner’s cooperation fully offsets the aggravating factors in this case. 
                            ***The IG concedes that a mitigating factor, i.e., the District Court determined that Petitioner had a mental, emotional, or physical condition that reduced his culpability, applies in this case.  This is a modest mitigating factor. ***

In the November 30, 2022 notice reducing the length of exclusion, the IG stated that, based upon review of information referenced in Petitioner’s appeal, the IG had determined that Petitioner’s case included the mitigating factor that Petitioner had a mental, emotional, or physical condition that a court determined reduced Petitioner’s culpability.  IG Ex. 2 at 1. 

[Redacted]

Page 23

[Redacted]

The regulations state that a mitigating factor to reduce the length of an exclusion that is more than five years in length is the following: 

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. 

42 C.F.R. § 1001.102(c)(2). 

[Redacted]

Page 24

[Redacted]

I conclude that Petitioner’s mental, emotional, and physical conditions were recognized by the District Court as reducing Petitioner’s culpability concerning his crimes; however, ultimate responsibility remained with Petitioner.  Therefore, the District Court found that Petitioner’s culpability was reduced in only a limited manner.  The District Court determined that Petitioner made the decisions involving his criminal conduct.  As a result, this mitigating factor, which the IG determined was present, serves only to provide some support to reduce the length of the exclusion.  I do not conclude that a further reduction to the minimum five-year length of exclusion is warranted based on this mitigating factor.  

Page 25
                            ***The 14-year length of Petitioner’s exclusion is not unreasonable based on the aggravating factors and mitigating factors in this case. ***

When considering the length of exclusion, “[t]he 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.”  *Farzana Begum, M.D.*, DAB No. 2726 at 2 (2016).  Further, the general purpose of an exclusion under 42 U.S.C. § 1320a-7 is “to protect federal health care programs and the programs’ beneficiaries and recipients from untrustworthy providers.”  *Susan Malady, R.N*., DAB No. 1816 at 9 (2002).  Ultimately, I must decide whether the 14-year exclusion is unreasonable (i.e., is it within a reasonable range for the length of exclusion based on the relevant factors?).  42 C.F.R. § 1001.2007(a)(1)(ii); 57 Fed. Reg. 3298, 3321 (Jan. 29, 1992). 

Above, I performed the qualitative assessment of the aggravating and mitigating factors.  The loss to the Medicare program is very high and the length of time Petitioner engaged in criminal conduct is long.  As discussed above, these factors support a lengthy exclusion.  In further support is the sentence to incarceration. 

However, Petitioner, after being investigated, cooperated with law enforcement authorities.  Petitioner’s cooperation was significant.  The sentencing court also recognized that Petitioner’s mental, emotional, and physical ailments reduced his culpability for his crimes, although the District Court clearly found Petitioner to still be responsible for them. 

I am persuaded that the 14-year length of exclusion is not unreasonable based on these factors.  Petitioner is a significant threat to the Medicare program.  The District Court made it clear that Petitioner’s primary motivation in business is to make a lot of money and his conduct as the owner of Medicare-enrolled DMEPOS suppliers proves this. 

Petitioner enrolled his companies in the Medicare program, a process that requires Petitioner to certify that he understands and will follow Medicare’s laws and regulations. 

[Redacted]

Page 26

[Redacted]

Petitioner’s criminal conduct and failure to take his responsibilities as an owner of enrolled suppliers in the Medicare program seriously show that his continued participation in federal health care programs is extremely risky. 

[Redacted]

It should have been clear to anyone that selling DMEPOS items to Medicare beneficiaries is not just like any other business.  I have no reason to conclude that Petitioner was as ignorant of Medicare-related laws as he claims, but even if he had been, that would hardly make him less of a threat to federal health care programs. 

The Medicare program is an extraordinarily important program that ensures health care for millions of aged and disabled persons in this country.  It is well known that the program has fiscal difficulties due to its mandate to pay for that care.  Yet, Petitioner, in violation of his obligations as an enrolled supplier in the program, acted in a manner that  sought to weaken that program so that he could improperly enrich himself.  Based on the facts in this case, it is impossible for me to find that Petitioner is trustworthy to participate in federal health care programs. 

[Redacted]

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[Redacted]

The IG’s exclusion is the proper method to protect federal health care programs. 

Based on the factors above and Petitioner’s demonstrated threat to federal health care programs, I conclude that the IG’s 14-year length of exclusion is not unreasonable. 

### IX.  Conclusion

I affirm the IG’s determination to exclude Petitioner for 14 years from participating in all federal health care programs. 

Scott AndersonAdministrative Law Judge