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                              2022
                              Michael Mak, M.D. a.k.a. Mikhail Makhmetov, DAB CR6203 (2022)
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Michael Mak, M.D. a.k.a. Mikhail Makhmetov, DAB CR6203 (2022)








  
  
    

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





Michael Mak, M.D. a.k.a. Mikhail Makhmetov
(OI File No. 2-10-40383-9),
Petitioner,

v.

The Inspector General.
Docket No. C-22-762Decision No. CR6203December 15, 2022

        
              
    

      DECISION

The Inspector General (IG) of the United States Department of Health and Human Services excluded Petitioner, Michael Mak, M.D., also known as Mikhail Makhmetov, from participation in Medicare, Medicaid, and all other federal health care programs based on his convictions for health care fraud conspiracy and money laundering conspiracy that were related to the delivery of a health care item or service under the Medicare and Medicaid programs.  Petitioner does not dispute his convictions mandate exclusion, nor does he dispute that a minimum period of exclusion of 10 years is not unreasonable based on the application of two aggravating factors and one mitigating factor.  I uphold the 10-year exclusion, and I am not empowered to grant the additional relief sought by Petitioner.

I.   Background

In a letter dated July 29, 2022, the IG excluded Petitioner from participation in Medicare, Medicaid, and all federal health care programs as defined in section 1128B(f) of the Social Security Act (Act) (42 U.S.C. § 1320a-7b(f)) for a minimum period of 24 years, effective 20 days from the date of the letter.  IG Ex. 1 at 1.  The IG explained the following bases for excluding Petitioner:

Page 2

The OIG is imposing this exclusion under section 1128(a)(1) of the Act, due to your conviction (as defined in section 1128(i) of the Act), in the United States District Court, for the Eastern District, New York, 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.  See 42 U.S.C. 1320a-7(a)(1), 42 C.F.R. 1001.101(a).

IG Ex. 1 at 1.  The IG informed Petitioner that the exclusion was for “a minimum period of 24 years.”  IG Ex. 1 at 1; *see*42 U.S.C. § 1320a-7(c)(3)(B).  The IG extended the exclusion period from the statutory minimum of five years to 24 years based on the presence of the following two aggravating factors:  1) The acts resulting in the conviction, or similar acts, caused, or were intended to cause, a financial loss to a government program or one or more entities of $50,000 or more, with $6,607,700 in court-ordered restitution; 2) The acts that resulted in the conviction, or similar acts, were committed over a period of one year or more, from “September 2008 to February 2011.”  IG Ex. 1 at 1-2; 42 C.F.R. § 1001.102(b).  The IG did not cite any mitigating factors.  IG Ex. 1; *see*42 C.F.R. § 1001.102(c).

Petitioner, through counsel, filed a timely request for an administrative law judge (ALJ) hearing on August 30, 2022.  Thereafter, the Civil Remedies Division issued my Standing Pre-Hearing Order (Pre-Hearing Order).  On September 19, 2022, I presided over a telephonic pre-hearing conference and issued an order summarizing the conference.

On October 17, 2022, the IG issued an amended notice of exclusion in which she reduced the period of exclusion from 24 years to 10 years based on her application of a mitigating factor.  IG Ex. 6 at 1.  The IG explained that she had determined, pursuant to 42 C.F.R. § 1001.102(c)(3), that Petitioner’s “cooperation with Federal or State officials” resulted in convictions or exclusions, additional cases being investigated or reports being issued by law enforcement that identified program vulnerabilities or weaknesses, or the imposition of a civil monetary penalty or assessment.  IG Ex. 6 at 1.

Shortly thereafter, the IG, through counsel, filed a brief and seven proposed exhibits (IG Exs. 1-7).  Petitioner then filed a brief (P. Br.) and the IG filed a reply.
Neither party has submitted the written testimony of any witnesses, nor has either party provided notice that it is unable to provide the written direct testimony of an essential witness.1  *See*Pre-Hearing Order § 14.  An in-person hearing for the purpose of

Page 3

cross‐examination of witnesses is therefore unnecessary.  *See*Pre-Hearing Order  §§ 15, 16.  This matter is ready for a decision on the merits of the written record.

II.   Issues

Whether there is a basis for exclusion, and, if so, whether the 10-year exclusion imposed by the IG is not unreasonable.  42 C.F.R. § 1001.2007(a)(1).

III.   Jurisdiction

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

IV.   Findings of Fact, Conclusions of Law, and Analysis2

***Petitioner was convicted of a program-related crime, in that his criminal offense related to the delivery of a health care item or service under the Medicare and Medicaid programs, which subjects him to a mandatory exclusion from all federal health care programs for a minimum period of five years.
	Petitioner concedes that exclusion is mandated pursuant to 42 C.F.R. § 1320a-7(a)(1).***Subsection 1128(a)(1) requires a mandatory exclusion from all federal health care programs under certain conditions.3  Section 1128(a)(1) states:

Page 4

(a) Mandatory Exclusion.—The Secretary shall exclude the following individuals and entities from participation in any Federal health care program (as defined in section 1128B(f)):

(1) Conviction of program-related crimes—Any individual or entity that has been convicted of a criminal offense related to the delivery of an item or service under title XVIII or under any State health care program.

42 U.S.C. § 1320a-7(a)(1).

On June 10, 2014, Petitioner entered into a “cooperation agreement” with the United States Attorney for the Eastern District of New York in which he waived indictment and agreed to plead guilty to health care fraud conspiracy and money laundering conspiracy.4  IG Ex. 3 at 1; *see*IG Ex. 2 (information).  The parties acknowledged that Petitioner faced exposure to a maximum term of incarceration of 10 years for the health care fraud conspiracy count and 20 years for the money laundering conspiracy count.5  IG Ex. 3 at 1-2.  Petitioner “acknowledge[d] that he received money and property that are subject to forfeiture as a result of his violations of 18 U.S.C. § 1349 and 18 U.S.C. § 1956(h) as alleged in the Information,” and “consent[ed] to the entry of a forfeiture money judgment in the amount of . . . ($6,726,560.00).”  IG Ex. 3 at 6.  The agreement addressed Petitioner’s intent to provide substantial assistance to law enforcement authorities and memorialized the government’s stated intent to file a pre-sentencing motion for a downward departure pursuant to section 5K1.1 of the United States Sentencing Guidelines if Petitioner fully cooperated and provided substantial assistance.  IG Ex. 3 at 10-11.  The agreement also stated that Petitioner “understands and acknowledges that [he] will be excluded from Medicare, Medicaid, and all Federal health care programs.”  IG Ex. 3 at 14.

Page 5

Contemporaneous to executing the cooperation agreement, the United States filed a two‐count information charging the aforementioned conspiracy offenses.  The information charged that Petitioner engaged in the money laundering conspiracy from “[i]n or about and between September 2008 and February 2011.”  IG Ex. 2 at 2.  The information also provided notice of the government’s intent to seek forfeiture of the gross proceeds of the crimes.  IG Ex. 2 at 3-5; *see*IG Ex. 4 at 3 (judgment ordering $6,607,786.00 in restitution).

Nearly eight years after Petitioner entered into the cooperation agreement, Petitioner appeared for a sentencing hearing on March 3, 2022.  IG Ex. 7 at 1.  At that time, the district judge accepted a guilty plea that had been entered before a magistrate judge.  IG Ex. 7 at 2-3.  The district judge determined that the offense level, for purposes of sentencing guidelines, was 27, which corresponds to a Guidelines range of incarceration of between 70 and 87 months.  IG Ex. 7 at 4-5; *see*Sentencing Table, *https://www.ussc.gov/guidelines/2021-guidelines-manual/annotated-2021-chapter-5*(last visited December 12, 2022).  On March 3, 2022, the district court imposed sentence and judgment, at which time it did not order any incarceration,6 imposed a $200 fine, and ordered that Petitioner pay $6,607,786.00 in restitution.  IG Ex. 4 at 1-3.  Petitioner’s counsel reported that Petitioner provided substantial assistance “to a total of almost 15 various cases and defendants from which his cooperation either assisted or was substantially direct in leading to either a trial prosecution or ultimately guilty pleas.”  IG Ex. 7 at 9.  The United States echoed these claims, stating that Petitioner “did sort of participate in every way that you can think of that someone can provide substantial assistance at both providing information, providing documents, making recordings, being available to testify at multiple trials and then ultimately testifying at trial.”  IG Ex 7 at 19.  The United States added that Petitioner “provided substantial assistance for such a long period of time over a large number of cases and substantial is maybe not even a large enough word to explain just the magnitude of what he provided.”  IG Ex. 7 at 19.  At the sentencing hearing, Petitioner’s counsel reported that Petitioner had not worked as a medical professional since 2014 and that “he’s not going to be able to function as a medical professional.”  IG Ex. 7 at 13.  Counsel and Petitioner explained that Petitioner was employed as a commercial pilot for a local airline and expected to maintain that position following his sentencing.  IG Ex. 7 at 9, 13, 17-18.

Petitioner does not dispute that he was convicted of a criminal offense relating to the delivery of an item or service under the Medicare program.  Request for Hearing at 2 (“Dr. Michael Mak concedes that he was convicted of the crimes referenced in the letter and that based on that criminal conviction, the imposition of the exclusion was within the discretion of the OIG.”); P. Br. at 1 (not disputing that the IG “has sufficient grounds to

Page 6

justify the exclusion”); *see*IG Ex. 2 at 1‐2 (charging that Petitioner engaged in a conspiracy to “defraud one or more health care benefit programs, specifically Medicare and Medicaid . . . in connection with the delivery and payment for health care benefits,” and that Petitioner engaged in a conspiracy involving financial transactions that “involved the proceeds of specified unlawful activity, specifically health care fraud”).  Pursuant to section 1128(i)(2) and (3) of the Act, an individual is considered to have been convicted of a criminal offense “when there has been a finding of guilt . . . by a Federal, state, or local court” or “when a plea of guilty . . . has been accepted by a Federal, State, or local court.”  42 U.S.C. § 1320a-7(i)(2), (3).  Petitioner pleaded guilty to the criminal offenses of health care fraud conspiracy, in violation of 18 U.S.C. § 1349, and money laundering conspiracy, in violation of 18 U.S.C. § 1956(h), and a district judge accepted his guilty plea and imposed judgment on March 3, 2022.  IG Exs. 4 at 1; 7 at 2-3.

Congress, through enactment of the Act, determined that an individual who has been convicted of a criminal offense related to either the delivery of an item or service under Medicare or a state health care program must be excluded from federal health care programs for no less than five years, and it afforded neither the IG nor an ALJ the discretion to impose an exclusion of a shorter duration.  42 U.S.C. § 1320a-7(c)(3)(B).  I cannot shorten the length of the exclusion to a period of less than five years because I do not have authority to “find invalid or refuse to follow Federal statutes or regulations.”  42 C.F.R. § 1005.4(c)(1).  Petitioner has criminal convictions for health care fraud conspiracy and money laundering conspiracy, and the criminal offenses involved the Medicare and Medicaid programs and related to the delivery of a health care item or service under Medicare.  Petitioner’s exclusion is mandated for a minimum period of five years based on subsection 1128(a)(1).

***A 10-year minimum exclusion is not unreasonable based on the presence of two aggravating factors and one mitigating factor.
	Petitioner concedes that a 10-year period of exclusion is not unreasonable.***The Act requires a minimum exclusion period of five years when the exclusion is mandated under section 1320a-7(a).  42 U.S.C. § 1320a-7(c)(3)(B).  In this case, exclusion is required under section 1320a-7(a)(1), and therefore Petitioner must be excluded for a minimum of five years.  The IG has the discretion to impose an exclusion longer than the minimum period when aggravating factors are present.  *See* 42 C.F.R. § 1001.102.  The IG increased the minimum exclusion period from five years to 10 years based on the presence of two aggravating factors and one mitigating factor.  IG Exs. 1 at 1-2; 6 at 1-2.  The IG bears the burden of persuasion with respect to aggravating factors, and Petitioner bears the burden of persuasion with respect to mitigating factors.  42 C.F.R. § 1005.15(c).

Page 7

Petitioner does not dispute the IG’s application of the aggravating factors and mitigating factor, and he does not dispute that a 10-year period of exclusion is not unreasonable.  P. Br. at 1.  As I explain below, a 10-year exclusion is not unreasonable based on the presence of two aggravating factors and one mitigating factor.

The first aggravating factor is that the loss to a government program or other entities as a result of Petitioner’s criminal conduct was greater than $50,000, as evidenced by the district court’s order that he pay approximately $6.6 million in restitution.  IG Exs. 1 at 2; 4 at 3; *see*IG Ex. 2 at 1 (information charging the “scheme and artifice to defraud one or more health care programs, specifically Medicare and Medicaid”); 42 C.F.R. § 1001.102(b)(1).  The $6.6 million program loss was *well more than 100 times* the $50,000 threshold for application of this aggravating factor, and the IG had a reasonable basis to significantly lengthen the exclusion based on this factor.  42 C.F.R. § 1001.102(b)(1); *see Edwin L. Fuentes*, DAB No. 2988 at 13 (2020) (“We find it deserves some significant weight in extending the mandatory exclusion period given that the regulations reflect that financial losses of even one dollar over $50,000 would justify at least some extension.”).

The second aggravating factor is that the acts resulting in Petitioner’s conviction, or similar acts, were committed over a period of one year or more.  42 C.F.R. § 1001.102(b)(2); *see*IG Ex. 2 at 2 (information charging that Petitioner participated in the money laundering conspiracy from “[i]n or about and between September 2008 and February 2011”).  The IG properly considered the length of the acts underlying Petitioner’s conviction to be an aggravating factor.  42 C.F.R. § 1001.102(b)(2); *see* *Kimberly Jones*, DAB No. 3033 at 11 (2021) (unlawful conduct that “occurred over a period far exceeding a year . . . more than satisfies the aggravating factor and supports the significant weight given to it”).

Evidence of aggravation may be offset by evidence of mitigation if it relates to one of the factors set forth at 42 C.F.R. § 1001.102(c).  Pursuant to 42 C.F.R. § 1001.102(c)(3), Petitioner may demonstrate mitigation if his cooperation resulted in others being convicted or excluded from Medicare, Medicaid and all other federal health care programs; resulted in additional cases being investigated or reports being issued by the appropriate law enforcement agency identifying program vulnerabilities or weaknesses; or resulted in a civil monetary penalty or assessment pursuant to 42 C.F.R. part 1003.  There is no doubt that Petitioner provided substantial assistance to law enforcement and that his cooperation resulted in, at a minimum, other convictions.  The IG appropriately applied this mitigating factor, and Petitioner does not claim that the IG erred in her application of this mitigating factor.

In the absence of any claim by Petitioner that a minimum period of exclusion of 10 years is unreasonable, there is no basis to disturb the IG’s imposition of a minimum period of exclusion of 10 years based on the presence of two aggravating factors and one

Page 8

mitigating factor.  I conclude that the imposition of a minimum period of exclusion for 10 years is not unreasonable.

***Petitioner has not demonstrated any factual or legal basis to support his argument that the length of the exclusion should be reduced to account for “time served.”***Although Petitioner does not argue the imposition of a 10-year period of exclusion is unreasonable, he requests, without citation to any legal authority, that I consider “the length of time that [he] was strongly ‘encouraged’ by Federal prosecutors to remove himself from the practice of Medicine and participation in Medicare, Medicaid, and other Federally funded health care programs.”  P. Br. at 1.  Petitioner argues that “he has been serving under a Federally coerced ‘exclusion’ for a number of years” and that he should be given “credit for now and to be credited for that ‘time served’ and that time count against the currently proposed 10 year exclusion period that has been proposed by the [IG].”  P. Br. at 2.

I am not alone in recognizing that Petitioner provided significant cooperation to law enforcement for an extended period of time.  *See*IG Ex. 7 at 19 (government’s discussion of the “magnitude” of Petitioner’s substantial assistance).  And the IG likewise recognized this extensive cooperation when she, prior to submitting her pre-hearing exchange, reduced the minimum length of the exclusion from 24 years to 10 years.  *Compare*IG Ex. 1 *with*IG Ex. 6.  Petitioner commendably opted to cooperate with the United States, and the United States fulfilled its promise to support a downward departure from the presumptive sentencing range for his crimes.  IG Exs. 3 at 11; 7 at 19.

However, and like Petitioner, I am unaware of any authority allowing for “time served” prior to a criminal conviction to reduce the minimum period of exclusion.  Petitioner has not claimed that the IG did not adequately account for his cooperation with law enforcement as a mitigating factor, and the 10-year period of exclusion, based on the staggering amount of loss of approximately 132 times the $50,000 threshold, is an undoubtedly short period of exclusion within an unquestionably low range for such a criminal loss.  Petitioner has not demonstrated the presence of any other factor for consideration and application by the IG.  *See*42 C.F.R. § 1001.102(c).

Inasmuch as I recognize the lengthy multi-year gap between Petitioner’s entry into a cooperation agreement in 2014 and his sentencing in 2022, which Petitioner attributed to both his extensive cooperation and the COVID-19 pandemic (P. Br. at 3-4), I note that Petitioner received great personal benefit from his substantial assistance to law enforcement; although the Guidelines sentencing range for Petitioner’s felony convictions was between 70 and 87 months of incarceration, the United States supported a downward departure and the district court ultimately did not impose a sentence of incarceration.  IG Ex. 7 at 4-5, 19.  Petitioner’s substantial assistance yielded *both*a

Page 9

reduced period of exclusion and tremendous leniency by the criminal justice system,7 but there is no mechanism to allow pre-exclusion credit for “time served.”  To the extent Petitioner seeks relief based on what could be viewed as a glacial pace of his own case through the criminal justice system, there is simply no provision of law to reduce the period of exclusion based on the length of time it took for Petitioner’s guilty plea to be accepted and judgment of conviction issued.  Further, there is no statutory or regulatory authority supporting a reduction of the length of an exclusion or other relief on the basis of a physician not practicing medicine while providing substantial assistance, and I may only consider the factors listed in 42 C.F.R. § 1001.102(b), (c) when reviewing whether the length of the exclusion is unreasonable.  *See*42 U.S.C. § 1320a-7(c)(3)(B); *see also*42 C.F.R. §§ 1001.2002(b) (“[t]he exclusion will be effective 20 days from the date of the notice”); 1005.4(c)(1) (ALJ does not have authority to refuse to follow federal regulations).  Although Petitioner made laudable efforts following his criminal conduct, such efforts do not necessarily undo the criminal harm he caused to health care benefit programs and render him trustworthy to the IG.  *See*IG Ex. 3 at 14 (agreement that Petitioner would be excluded even after providing substantial assistance to law enforcement).

***The effective date of Petitioner’s exclusion is August 18, 2022.***Petitioner agreed, dating back to his entry into the cooperation agreement, that he would be excluded from Medicare, Medicaid, and other federal health care programs.  IG Ex. 3 at 14.  The district court accepted Petitioner’s guilty plea and imposed judgment on March 3, 2022.  *See*IG Ex. 4 at 1.  The following month, the IG informed Petitioner of her intent to impose an exclusion.  IG Ex. 5.  The effective date of the exclusion, August 18, 2022, is 20 days after the date of the IG’s July 29, 2022 notice of exclusion and is established by regulation.  *See*42 C.F.R. § 1001.2002(b).  I am bound by that regulation.  42 C.F.R. § 1005.4(c)(1).

Page 10

V.   Conclusion

For the foregoing reasons, a 10-year exclusion from participation in Medicare, Medicaid, and all other federal health care programs, effective August 18, 2022, is not unreasonable.

Endnotes

1 Petitioner requested the following in his brief:  “Petitioner seeks to have the Court consider the credible testimony of Petitioner as evidence that this declaration made by the Prosecutors that he should remove himself from the practice of Medicine and from participation in the Federal programs constituted a form of Federal action that pushed the Petitioner to constructively ‘exclude’ himself from Federal programs long before [he] was actually found guilty and actually sentenced for any crimes and years before the [IG] actually proposed and then later imposed the actual exclusion that is the subject of this case.”  P. Br. at 2.  Petitioner did not avail himself of the opportunity to submit his own written direct testimony or to file a witness list identifying himself as a proposed witness.  *See*Pre‐Hearing Order § 9 (“If a party will be presenting witnesses, the party’s pre‐hearing exchange will include a list of all proposed witnesses and the written direct testimony of each witness (other than expert witnesses).”).  Nonetheless, even accepting that Petitioner somehow excluded himself while he cooperated with law enforcement, there is no legal authority allowing what amounts to constructive credit to a later-imposed exclusion.

2 My findings of fact and conclusions of law are set forth in italics and bold font.

3 While there are slight differences in the wording of Section 1128 of the Act and its codification at 42 U.S.C. § 1320a-7, the two authorities are substantively identical and I refer to them interchangeably.  I further note that the Secretary of the Department of Health and Human Services (Secretary) has delegated to the IG the authority “to suspend or exclude certain health care practitioners and providers of health care services from participation in these programs.”  48 Fed. Reg. 21662 (May 13, 1983); *see also*42 C.F.R. § 1005.1.

4 Although the IG identified this document as a “Plea Agreement” on her exhibit list, the document is captioned as a “Cooperation Agreement.”

5 The two offenses are both felony offenses.  *See* 18 U.S.C. § 3559(a)(3) (classifying both offenses as Class C felonies).

6 The district court ordered imprisonment for a total term of “time served” in the custody of the Attorney General.  IG Ex. 4 at 2.

7 I note that Petitioner’s cooperation almost certainly yielded a reduction in the period of exclusion; without his cooperation and the resulting motion for a downward departure, Petitioner faced the possibility of a lengthy sentence of incarceration and the applicability of an additional aggravating factor.  *See*42 C.F.R. § 1001.102(b)(5) (aggravating factor for application when a sentence includes incarceration).
  
          /s/
        Leslie C. Rogall

                      Administrative Law Judge Back to top
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