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                              Mohammed Tariq Amin, CR6296 (2023)
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Mohammed Tariq Amin, CR6296 (2023)








  
  
    

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





Mohammed Tariq Amin
(O.I. File No.: 3-17-40230-9)
Petitioner,

v.

The Inspector General,
U.S. Department of Health and Human Services,
Respondent
Docket No. C-22-628Decision No. CR6296June 8, 2023

        
              
    

      DECISION

Petitioner is excluded from participation in Medicare, Medicaid, and all federal health care programs pursuant to section 1128(a)(1) and (3) of the Social Security Act (Act) (42 U.S.C. § 1320a-7(a)(1), (3)) effective May 19, 2022.  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)).  Exclusion for an additional 10 years, for a total minimum exclusion of 15 years,1  is not unreasonable based on the existence of four aggravating factors and one mitigating factor.

Page 2

I. Background

The Inspector General (IG) notified Petitioner by letter dated April 29, 2022, that he2  was excluded from participation in Medicare, Medicaid, and all federal health care programs for a minimum of 25 years.  The IG cited section 1128(a)(1) and (3) of the Act as the authority for Petitioner’s exclusion based on his convictions in the United States District Court, Eastern District of Virginia (district court), of:

(1)  A criminal offense related to the delivery of an item or service under Medicare or a State health care program (Act § 1128(a)(1)); and

(2)  A felony criminal offense related to fraud, theft, embezzlement, breach of fiduciary responsibility, or other financial misconduct in connection with the delivery of a health care item or service (Act § 1128(a)(3)).

The IG extended the five-year minimum period of exclusion to a total of 25 years citing the existence of four aggravating factors and no mitigating factor.  IG Exhibit (Ex.) 2 (revised) at 2-3.

Petitioner requested a hearing pursuant to 42 C.F.R. § 1005.2 on June 29, 2022 (RFH).  I convened a prehearing conference by telephone on July 29, 2022, the substance of which is memorialized in my Prehearing Conference Order and Schedule for Filing Briefs and Documentary Evidence dated the same day (Prehearing Order).

On January 18, 2023, the IG issued a letter amending the IG’s April 29, 2022 notice of exclusion to provide for a total period of exclusion of 15 years rather than 25 years, based on further consideration of the aggravating factor under 42 C.F.R. § 1001.102(b)(5) and the mitigating factor under 42 C.F.R. § 1001.102(c)(3).  IG Ex. 2 (revised) at 1.

The IG filed IG Ex. 1 on January 6, 2023, with a joint motion for extension of the prehearing schedule.  The IG filed IG Ex. 2 on January 23, 2023, in connection with a joint status report.  On February 13, 2023, the IG filed a motion for summary judgment with a supporting brief, exhibit list, and IG Exs. 2 (revised) through 11.  IG Ex. 10 was filed by the IG as a password protected document without requesting that the document be filed under seal.  The IG and Petitioner were concerned about the district court’s limitations on public disclosure of the document marked IG Ex. 10.  At my request, the parties filed a stipulation discussing the origin of the document marked IG Ex. 10, and

Page 3

the relevant facts in IG Ex. 10 to avoid the need to admit or consider IG Ex. 10 as evidence.  Joint Statement of Facts Regarding Government’s Motion to Reduce Petitioner’s Sentence (Joint Statement).  I do not order that IG Ex. 10 be sealed or impose any limitations on access to the document.  However, the document should be treated as remaining subject to any limitations imposed by the district court.  The parties Joint Statement is considered as evidence rather than the document marked IG Ex. 10.

On March 29, 2023, Petitioner filed a brief opposing the IG’s motion for summary judgment (P. Br.) with Petitioner’s exhibits (P. Exs.) 1 through 21.  The IG filed a reply brief on April 13, 2022 (IG Reply).

An administrative law judge (ALJ) determines the admissibility of evidence and is not bound by the Federal Rules of Evidence but refers to them as appropriate.  42 C.F.R. § 1005.17(a)-(b).  I must exclude irrelevant or immaterial evidence.  42 C.F.R. § 1005.17(c).  Under the Federal Rules of Evidence, the test for whether evidence is relevant is whether the evidence has “any tendency to make a fact more or less probable than it would be without the evidence;” and “the fact is of consequence in determining the action.”  Fed. R. Evid. 401.  The only issues before me are whether there is a basis to exclude Petitioner and whether the period of exclusion is unreasonable.  42 C.F.R. § 1002.2007(a)(1).  The elements that trigger exclusion under section 1128(a)(1) of the Act are whether:  Petitioner was convicted of a criminal offense; whether the offense was related to the delivery of an item or service; and whether the delivery of the item or service was under Medicare or a state health care program such as Medicaid.  Act § 1128(a)(1); 42 C.F.R. § 1001.101(a).  The elements that trigger exclusion under section 1128(a)(3) of the Act are whether:  Petitioner was convicted of an offense that occurred after August 21, 1996; Petitioner was convicted of a felony; the offense of which Petitioner was convicted was related to fraud, theft, embezzlement, breach of fiduciary responsibility, or other financial misconduct; and the offense of which Petitioner was convicted was committed in connection with the delivery of a health care item or service or with respect to an act or omission in a health care program, other than Medicare or Medicaid, operated or financed by a federal, state, or local government agency.  Act § 1128(a)(3); 42 C.F.R. § 1001.101(c).  As explained in greater detail later in this decision the scope of my review of whether the period of exclusion is unreasonable is limited.  In determining whether the period of a mandatory exclusion greater than five years is unreasonable, I consider whether the IG considered as aggravating, factors other than those established by 42 C.F.R. § 1001.101(b) and whether the IG failed to consider mitigating factors established by 42 C.F.R. § 1001.201(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); Prehearing Order ¶ 4.  If the evidence does not show the IG considered as aggravating a factor not authorized by 42 C.F.R. § 1001.101(b) or failed to consider a mitigating factor authorized

Page 4

by 42 C.F.R. § 1001.101(c), I may not substitute my judgment for that of the IG in determining the reasonable period of exclusion.

Petitioner did not object to my consideration of IG Exs. 1 or 10.  However, neither are admitted as evidence.  IG Ex. 1, an order of the district court unsealing a government motion for a limited purpose, does not tend to make a fact of consequence to any issue that I may decide in this case more or less probable.  Therefore, IG Ex. 1 is not admitted as evidence.  IG Ex. 10 is cumulative of the parties’ Joint Statement of the relevant content of the exhibit and cumulative evidence need not be admitted even though relevant.  42 C.F.R. § 1005.17(d).  Consideration and discussion of IG Ex. 10 in this decision also runs the unnecessary risk of violating the district court’s consent order unsealing the document marked IG Ex. 10 for a limited purpose.  Therefore, IG Ex. 10 is not admitted or considered as evidence.

The IG objected to my consideration of P. Exs. 1 through 20.  IG Reply at 4-1 n.1.  P. Exs. 1 through 20 are related to the convictions of Petitioner’s co-conspirators.  P. Ex. 21 is a document filed by Petitioner in district court that addresses his sentencing.  Petitioner states that P. Exs. 1 through 21 are offered to show that the IG failed to “reasonably assess [Petitioner’s] role in the conspiracy” and that Petitioner’s “15-year exclusion is unreasonably disproportionate to the exclusion periods of his co-conspirators.”  P. Br. at 2-3, 7-20.  Petitioner does not dispute the existence of the four aggravating factors considered by the IG under 42 C.F.R. § 1001.102(b) (P. Br. at 13) or that the IG failed to consider the one mitigating factor identified by Petitioner as a basis for reducing Petitioner’s period of exclusion from 25 to 15 years (P. Br. at 15).  Petitioner’s argument is that the IG failed to properly weigh the four aggravating factors and the one mitigating factor considered by the IG.  P. Br. at 14-21.  However, because it is undisputed the IG considered the four aggravating factors and the one mitigating factor that are present in this case, I have no authority to reweigh those factors and substitute my judgment for that of the IG as to the reasonable period of exclusion.  Therefore, I conclude that P. Exs. 1 through 21 have no tendency to make a fact of consequence to any issue that I may decide in this case more or less probable, and Petitioner’s exhibits are not admitted as evidence.

II. Discussion

**A.  Applicable Law**

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

Page 5

Pursuant to section 1128(a)(1) of the Act, the Secretary must exclude from participation in any federal health care program any individual convicted under federal or state law of a criminal offense related to the delivery of an item or service under Medicare or a state health care program.  A state health care program includes a state Medicaid program.  Act § 1128(h) (42 U.S.C. § 1320a-7(h)).  The Secretary has promulgated regulations implementing this provision of the Act.  42 C.F.R. § 1001.101(a).

The Secretary must also exclude from participation in any federal health care program:

Any individual or entity that has been convicted for an offense which occurred after [August 21, 1996], under Federal or State law, in connection with the delivery of a health care item or service or with respect to any act or omission in a health care program (other than those specifically described in [section 1128(a)(1)]) operated by or financed in whole or in part by any Federal, State, or local government agency, of a criminal offense consisting of a felony relating to fraud, theft, embezzlement, breach of fiduciary responsibility, or other financial misconduct.

Act § 1128(a)(3) (42 U.S.C. § 1320a-7(a)(3)).  The Secretary has promulgated regulations implementing this provision of the Act.  42 C.F.R. § 1001.101(c).

Pursuant to section 1128(i) of the Act (42 U.S.C. § 1320a-7(i)), an individual is convicted of a criminal offense when:  (1) a judgment of conviction has been entered against them by a federal, state, or local court whether or not an appeal is pending or the record has been expunged; (2) there is a finding of guilt by a court; (3) a plea of guilty or no contest is accepted by a court; or (4) the individual has entered into any arrangement or program where judgment of conviction has been withheld.  Act § 1128(i);42 § 42 C.F.R. § 1001.2.

Exclusion for a minimum period of five years is mandatory for any individual or entity convicted of a criminal offense for which exclusion is required by section 1128(a) of the Act.  Act § 1128(c)(3)(B) (42 U.S.C. § 1320a-7(c)(3)(B)).  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 fewer than five years.  42 C.F.R. § 1001.102(c).

In this proceeding, 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.

Page 6

42 C.F.R. § 1005.15(b), (c); Prehearing Order ¶ 4.  There may be no collateral attack of the conviction that is the basis for the exclusion.  42 C.F.R. § 1001.2007(d).

**B.  Issues**

The Secretary has by regulation limited my scope of review to two issues:

Whether the IG has a basis for excluding Petitioner from participation in Medicare, Medicaid, and all federal health care programs; and

Whether the length of the proposed period of exclusion is unreasonable.

42 C.F.R. § 1001.2007(a)(1).

**C.  Findings of Fact, Conclusions of Law, and Analysis**

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

**1.  Petitioner’s request for hearing was timely and I have jurisdiction.**

During the prehearing conference, the IG conceded that Petitioner’s request for hearing was timely filed.  Prehearing Order ¶ 2.  Accordingly, I have jurisdiction pursuant to section 1128(f) of the Act and 42 C.F.R. pt. 1005.

**2.  Summary judgment is appropriate in this case.**

Pursuant to section 1128(f) of the Act, a person subject to exclusion has a right to reasonable notice and an opportunity for a hearing.  The Secretary has provided by regulation that a sanctioned party has the right to a hearing before an ALJ, and both the sanctioned party and the IG have a right to participate in the hearing.  42 C.F.R. § 1005.2‐.3.  Either or both parties may choose to waive appearance at an oral hearing and to submit only documentary evidence and written argument for my consideration.  42 C.F.R. § 1005.6(b)(5).  An ALJ may also resolve a case, in whole or in part, by summary judgment.  42 C.F.R. § 1005.4(b)(12).

Summary judgment is appropriate in an exclusion case when there are no disputed issues of material fact and when the undisputed facts, clear and not subject to conflicting interpretation, demonstrate that one party is entitled to judgment as a matter of law.  *Tanya A. Chuoke, R.N.*, DAB No. 1721 (2000); *David A. Barrett*, DAB No. 1461 (1994); *Robert C. Greenwood*, DAB No. 1423 (1993); *Thelma Walley*, DAB No. 1367 (1992);*Catherine L. Dodd, R.N.*, DAB No. 1345 (1992); *John W. Foderick, M.D.*, DAB No.

Page 7

1125 (1990).  When the undisputed material facts of a case support summary judgment, there is no need for a full evidentiary hearing, and neither party has the right to one.  *Surabhan Ratanasen, M.D.*, DAB No. 1138 (1990); *Foderick*, DAB No. 1125.  In opposing a properly supported motion for summary judgment, the nonmovant must allege facts that show there is a genuine dispute of material fact that affects the proponent’s prima facie case or that might establish a defense.  The nonmovant may not rely upon mere allegations or denials to defeat a properly supported motion for summary judgment.  To defeat a properly supported motion for summary judgment and proceed to a trial, the nonmovant must show there is a genuine dispute as to a material fact that requires determination by the fact finder.  On summary judgment, the judge does not weigh the evidence or attempt to determine the truth.  Rather, the judge accepts the nonmovant’s evidence as true and draws all permissible inferences in the nonmovant’s favor.  *Anderson v. Liberty Lobby, Inc.*, 477 U.S. 242, 247-57 (1986).

The IG moved for summary judgment and Petitioner opposes the motion.  Petitioner does not dispute that his conviction triggered mandatory exclusion pursuant to section 1128(a)(1) and (3) of the Act.  Petitioner does not dispute that his exclusion for a minimum of five years is mandatory under the Act.  Petitioner does not dispute the existence of the four aggravating factors cited and considered by the IG as a basis for extending Petitioner’s period of exclusion beyond five years.  Petitioner also does not dispute that the IG considered, when extending Petitioner’s exclusion, one mitigating factor identified by Petitioner.  Petitioner argues that there are material facts in dispute that defeat summary judgment, but Petitioner’s arguments are that the IG improperly weighed the aggravating and mitigating factors in this case.  RFH; P. Br.  Petitioner’s arguments must be resolved against him as a matter of law.  I conclude that there are no genuine disputes of material fact in this case and all issues must be resolved as matters of law.  Accordingly, I conclude that summary judgment is appropriate.

**3.****Section 1128(a)(1) and (3) of the Act require Petitioner’s exclusion from participation in Medicare, Medicaid, and all other federal health care programs.**

**a.  Undisputed Facts**

The following facts are undisputed.  All factual inferences are drawn in Petitioner’s favor on summary judgment.

On November 10, 2020, a criminal information was filed in the district court charging Petitioner with one count of conspiracy to offer and pay health care kickbacks in violation of 18 U.S.C § 371 and one count of conspiracy to commit health care fraud in violation of 18 U.S.C § 1349.  The information alleges that the alleged crimes occurred from about January 2015 through November 2018.  IG Ex. 3 at 1, 9-12.

Page 8

On November 6, 2020, Petitioner executed a plea agreement in which he agreed to plead guilty to one count of conspiracy to offer and pay health care kickbacks and one count of conspiracy to commit health care fraud as alleged in the information.  IG Exs. 3, 4.  Petitioner admitted in his plea agreement based on a stipulation of facts (IG Ex. 5) that he knowingly and willfully participated in a conspiracy to offer and pay health care kickbacks in violation of 18 U.S.C § 371 and to commit health care fraud in violation of 18 U.S.C § 1349.  IG Ex. 4 at 2.  Petitioner also admitted in his plea agreement that his criminal conduct resulted in mandatory restitution pursuant to 18 U.S.C § 3663A and he agreed to the entry of a restitution order for the full amount of the victims’ losses.  IG Ex. 4 at 6.  Petitioner agreed to a stipulation of facts on about November 10, 2020, as part of his plea agreement.  IG Ex. 4 at 2; IG Ex. 5.  Petitioner agreed the government could prove the stipulated facts beyond a reasonable doubt.  IG Ex. 5 at 18.  Petitioner admitted in the stipulation that from about January 2015 through about November 2018, he knowingly and willfully conspired with others known and unknown to offer and pay health care kickbacks and to commit health care fraud.  Petitioner admitted that Medicare, Virginia Medicaid, Maryland Medicaid, Tricare, Anthem BlueCross BlueShield, CareFirst BlueCross and BlueShield, Aetna, and United Healthcare, who administered federal and state healthcare programs, were victims of the conspiracy.  IG Ex. 5 at 3, 7, 11.

On April 16, 2021, the district court accepted Petitioner’s guilty pleas and entered a judgment of guilty of conspiracy to offer and pay health care kickbacks and of conspiracy to commit health care fraud.  IG Ex. 7.  The district court sentenced Petitioner to 24 months incarceration on each of the two counts to be served concurrently, three years of supervised release, and an amount of restitution to be determined through a restitution hearing.  IG Ex. 7 at 2-6.  The district court later reduced Petitioner’s period of incarceration to 14 months based on a motion filed by the government pursuant to Rule 35(b) of the Federal Rules of Criminal Procedure.  Joint Statement at 5-6; IG Ex. 11 at 1.  On July 9, 2021, the district court issued a restitution order and required Petitioner to pay $7,150,922.12 jointly and severally with his co-conspirators.  Restitution was ordered to be paid to Medicare, Virginia and Maryland Medicaid, Tricare, the United States Office of Personnel Management, Aetna, Anthem, CareFirst BlueCross BlueShield, CVS, and Express Scripts.  IG Ex. 8.

On May 3, 2021, the Virginia Department of Health Professions suspended Petitioner’s license to practice as a pharmacy technician in the Commonwealth of Virginia based on his conviction in the district court.  IG Ex. 9.

Page 9

**b.  Analysis**

The IG cites section 1128(a)(1) and (3) of the Act as the authority requiring Petitioner’s exclusion from Medicare, Medicaid, and any federal health care programs.  IG Ex. 2 (revised); IG Br.; IG Reply.  Petitioner concedes that there is a basis for his exclusion pursuant to section 1128(a)(1) and (3) of the Act.  P. Br. at 1-2

Congress requires that the Secretary exclude an individual or entity if the individual or entity is:  (1) convicted of a criminal offense (misdemeanor or felony); (2) the criminal offense is related to the delivery of an item or service; and (3) the delivery of the item or service is under Medicare or any state health care program such as Medicaid.  Act § 1128(a)(1).  Petitioner does not dispute that the elements that trigger exclusion under section 1128(a)(1) of the Act are present in this case.

Petitioner does not dispute that he was convicted of a criminal offense within the meaning of section 1128(i) of the Act.  The district court accepted Petitioner’s guilty pleas to conspiracy to offer and pay health care kickbacks and conspiracy to commit health care fraud (Act § 1128(i)(3)); Petitioner was found guilty pursuant to his guilty pleas by the district court (Act § 1129(i)(2)); and judgment of conviction was entered against Petitioner by the district court (Act § 1128(i)(1)).  IG Ex. 7.

Petitioner also does not dispute that the crimes of which he was convicted were related to the delivery of an item or service under Medicare, Medicaid, and Tricare.  Petitioner states that the facts to which he stipulated as part of his plea agreement are not in dispute.  P. Br. at 3-4.  Petitioner specifically quotes in his brief language from the stipulation of fact indicating that the furnishing of items or services for which payment would be made by a federal health care program was an objective of the conspiracy of which Petitioner was convicted.  P. Br. at 3-4 (citing IG Ex. 5 ¶ 10).  The charges also reflect on their face that an objective of the conspiracy was obtaining payment from Medicare, Medicaid, Tricare, and others.  IG Ex. 3 at 4-12, ¶

The Board has long held that the statutory terms describing an offense do not control whether that offense is “related to” the delivery of a health care item or service under Medicare or a state health care program for purposes of exclusion pursuant to section 1128(a) of the Act.  *See, e.g., Dewayne Franzen*, DAB No. 1165 (1990) (inquiry is whether conviction is related to Medicaid fraud, not whether the petitioner was convicted of Medicaid fraud).  An ALJ must examine whether there is a “common sense connection or nexus between the offense and the delivery of an item or service under the program.”  *Scott D. Augustine*, DAB No. 2043 at 5-6 (2006) (citations omitted).  To determine whether there is such a nexus or common-sense connection, “evidence as to the nature of an offense may be considered,” such as the “facts upon which the conviction was predicated.”  *Robert C. Hartnett*, DAB No. 2740 at 7 (2016) (quoting *Berton Siegel,*

Page 10

*D.O.*, DAB No. 1467 at 6-7 (1994)).  The bar to a petitioner collaterally attacking the conviction underlying an exclusion does not preclude review of the facts and circumstances on which the conviction was based.  An ALJ may consider extrinsic evidence to determine the events which formed the basis for the offense.  *Narendra M.* *Patel, M.D.*, DAB No. 1736 (2000).  The terms “related to” and “relating to” in section 1128(a) of the Act simply mean that there must be a nexus or common-sense connection.  *Friedman v. Sebelius*, 686 F.3d 813, 820 (D.C. Cir. 2012) (describing the phrase “relating to” as “deliberately expansive words,” “the ordinary meaning of [which] is a broad one,” and one that is not subject to “crabbed and formalistic interpretation”) (internal quotes omitted); *Quayum v. U.S. Dep’t of Health & Human Servs.*, 34 F.Supp.2d 141, 143 (E.D.N.Y. 1998).  I conclude that the undisputed facts establish the required connection, rational link, or nexus between Petitioner’s criminal offense and the delivery of a health care item or service, under Medicare and Medicaid.  *W. Scott Harkonen*, *MD*, DAB No. 2485 (2012), *aff’d, Harkonen v. Sebelius*, No. C 13-0071 PJH, 2013 WL 5734918 (N.D. Cal. Oct. 22, 2013).

Although mandatory exclusion is triggered under section 1128(a)(1) of the Act and one basis for mandatory exclusion is all that is required, the IG also cites section 1128(a)(3) of the Act as the basis for mandatory exclusion.  Section 1128(a)(3) of the Act is not specifically discussed or disputed by Petitioner.  RFH, P. Br.  Under section 1128(a)(3) of the Act, Congress has mandated exclusion from any federal health care program if:  (1) an individual or entity is convicted of a criminal offense under federal or state law; (2) the offense of which the individual or entity was convicted was a felony; (3) the offense of which convicted occurred after August 21, 1996 (the date of enactment of the Health Insurance Portability and Accountability Act of 1996); (4) the criminal offense was committed in connection with the delivery of a health care item or service or with respect to any act or omission in a health care program other than Medicare or Medicaid, that is operated or financed by the federal, state, or a local government; and (5) the criminal offense was related to fraud, theft, embezzlement, breach of fiduciary responsibility, or other financial misconduct.  I conclude that the elements that trigger mandatory exclusion under section 1128(a)(3) of the Act are satisfied in this case.

Petitioner does not dispute in his request for hearing or briefing that he was convicted by the district court under federal law.  IG Ex. 7.  Petitioner does not dispute that he was convicted of felony3  offenses of conspiracy to commit health care fraud and conspiracy to

Page 11

offer and pay health care kickbacks.  IG Ex. 7.  He does not dispute the offenses of which he was convicted occurred after August 21, 1996.  IG Exs. 3, 4, 5, 7.  Petitioner does not dispute that his offenses were connected to the delivery of a health care item or service, specifically pharmacy items.  IG Ex. 5.  Petitioner does not dispute that the offenses of which he was convicted by the district court involved fraud committed against Medicare, Medicaid, Tricare, and others.  IG Exs. 5, 7, 8 at 3-4.

The Board’s approach to analysis of the connection, rational linkage, or nexus between the criminal conduct of which one is convicted and the delivery of a health care item or service; Medicare, Medicaid, Tricare, and other health care government health care programs; and the relationship to fraud, theft, embezzlement, breach of fiduciary responsibility, or other financial misconduct is fundamentally no different than the nexus analysis discussed for Petitioner’s exclusion pursuant section 1128(a)(1).  I conclude that the undisputed facts establish the required connection, rational link, or nexus in this case and trigger mandatory exclusion under section 1128(a)(3) of the Act.

There is a basis for Petitioner’s exclusion pursuant to section 1128(a)(1) and (3) of the Act and Congress has mandates his exclusion from participation in any federal health care program.  I have no discretion not to exclude Petitioner in this case as I am bound to follow the federal statutes and regulations.  42 C.F.R. § 1005.4(c)(1).

**4.  Section 1128(c)(3)(B) of the Act requires a minimum exclusion of five years for any exclusion pursuant to section 1128(a) of the Act.**

I have concluded that a basis exists to exclude Petitioner pursuant to section 1128(a)(1) and (3) of the Act.  Therefore, the IG must exclude Petitioner for the minimum period of five years required by Congress in section 1128(c)(3)(B) of the Act.  There is no discretion to impose a lesser period of exclusion.  The remaining issue is whether it is unreasonable to extend Petitioner’s exclusion by an additional 10 years for a total exclusion of 15 years.

Page 12

**5.  Four aggravating factors established by 42 C.F.R. § 1001.102(b) exist in this case that were considered by the IG as a basis to extend the period of exclusion beyond five years.**

**6.  One mitigating factor established by 42 C.F.R. § 1001.102(c) exists in this case that was considered by the IG in determining the period of exclusion.**

The IG cites four aggravating factors and one mitigating factor in extending Petitioner’s period of exclusion from the mandatory minimum five-year exclusion to 15 years.  IG Ex. 2 (revised) at 1, 3.  Petitioner does not argue that the IG considered an aggravating factor authorized by 42 C.F.R. § 1001.102(b) that does not exist or that there was a mitigating factor authorized by 42 C.F.R. § 1001.102(c) that the IG failed to consider.  P. Br. at 13-21.  There is no genuine dispute as to existence of the aggravating and mitigating factors considered by the IG, which are discussed briefly.

**a.  Petitioner’s offenses resulted in a loss of $50,000 or more to one or more government agencies or programs.  42 C.F.R. § 1001.102(b)(1).**

The IG may consider as an aggravating factor that the acts of which one was convicted caused, or were intended to cause, a financial loss of $50,000 or more to a government agency or program, or to one or more other entities.  42 C.F.R. § 1001.102(b)(1).

Petitioner agreed that an entry of a restitution order by the district court was mandatory for the full amount of the victims’ losses pursuant to 18 U.S.C. § 3663A(c)(2).  IG Ex. 4 at 6.  On July 9, 2021, the district court issued a restitution order that required Petitioner to pay restitution jointly and severally with his co-conspirators in the amount of $7,150,922.12.  IG Ex. 8 at 1.  The Board has previously accepted that an amount ordered as restitution constitutes proof of the amount of financial loss.  *Jeremy Robinson*, DAB No. 1905 at 11 (2004); *Craig Richard**Wilder*, DAB No. 2416 at 9 (2011); *Juan de Leon, Jr.*, DAB No. 2533 at 5 (2013); *Laura Leyva*, DAB No. 2704 at 9 (2016).  Therefore, the court order to pay restitution is good and undisputed evidence that Petitioner’s offenses caused the loss of more than $50,000 by one or more government agencies or programs.  IG Ex. 8 at 3-4.  Petitioner also admitted in his plea agreement that the loss was more than $3,500,000 but less than $9,500,000.  IG Ex. 4 at 4.

I conclude that this aggravating factor established by 42 C.F.R. § 1001.102(b)(1) exists in this case.

Page 13

**b.  The acts that resulted in Petitioner’s conviction were committed over a period of one year or more.  42 C.F.R. § 1001.102(b)(2).**

The IG may consider as an aggravating factor that the acts for which one is convicted occurred for a year or more.  42 C.F.R. § 1001.102(b)(2).  In the present case, Petitioner admitted as part of his plea agreement that the conspiracy for which he was convicted occurred from about January 2015 through November 2018.  IG Ex. 4; IG Ex. 5 at 7.

The Board has previously discussed the purpose of the aggravating factor under 42 C.F.R. § 1001.102(b)(2), saying that it reflects “the Secretary’s recognition that an individual whose lapse in integrity occurs over a period of one or more years poses a far greater threat to federal health care programs and beneficiaries than an individual ‘whose lapse in integrity is short-lived.’”  *Hussein Awada*, *M.D.*, DAB No. 2788 at 8 (2017) (quoting *Donald A. Burstein*, *Ph.D.*, DAB No. 1865 at 8 (2003)).  Petitioner’s acts were not short-lived and were committed over a period of more than a year.

The undisputed facts Petitioner admitted by his guilty plea establish the existence of this aggravating factor, which was properly considered by the IG.

**c.  Petitioner was sentenced to be incarcerated.  42 C.F.R. § 1001.102(b)(5).**

An aggravating factor that may be considered under 42 C.F.R. § 1001.102(b)(5) is that the sentence imposed by the district court included incarceration.

It is undisputed that on April 16, 2021, the district court sentenced Petitioner to 24 months of incarceration to run concurrently on each of the two counts of which Petitioner was convicted.  IG Ex. 7 at 2.  The district court subsequently reduced Petitioner’s prison sentence to 14 months.  IG Ex. 11 at 1.  According to Petitioner he was released from confinement after fewer than 10 months, which I accept as true.  P. Br. at 19 n.58.

A period of incarceration of any duration may be considered by the IG as an aggravating factor justifying extending the period of exclusion beyond the five-year minimum.  *See Jason Hollady, M.D.*, DAB No. 1855 at 9 (2002) (holding that a prison sentence of as little as nine months is “relatively substantial” for exclusion purposes.).

I conclude that this aggravating factor exists in this case.

**d.  Petitioner was subject to an adverse action by a state board and the adverse action was based on the same set of**

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**circumstances that are the basis for the imposition of the exclusion.  42 C.F.R. § 1001.102(b)(9).**

The IG may consider as an aggravating factor that Petitioner was 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)(9).

It is not disputed that on May 3, 2021, the Virginia Department of Health Professions suspended Petitioner’s license to practice as a pharmacy technician in the Commonwealth of Virginia.  IG Ex. 9 at 1.  The suspension was based on Petitioner’s felony convictions of offering and paying health care kickbacks and conspiracy to commit health care fraud.  IG Ex. 9 at 3.

The regulation requires that for the adverse action to be considered as aggravating, the adverse action must be 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)(9); *Narendra M. Patel, M.D.*, DAB No. 1736 at 28-29 (2000) (finding reasonable “the fact of additional adverse action beyond criminal conviction as additional evidence of the seriousness of the underlying conduct” . . . “since adverse actions by professional regulatory bodies, for example, may well be relevant to assessing how serious a risk a practitioner presents to patients or to payors.”).  There is no dispute that the suspension of Petitioner’s license was based on his conviction.  Therefore, I conclude that this aggravating factor exists in this case.

**e.  One mitigating factor established by 42 C.F.R. § 1001.102(c) exists in this case.**

If any of the aggravating factors authorized by 42 C.F.R. § 1001.102(b) are cited by the IG to justify an exclusion of longer than five years, as in this case, then mitigating factors may be considered as a basis for reducing the period of exclusion to no fewer 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).

After issuing the notice of exclusion, the IG determined that Petitioner’s cooperation with the government aided in conviction of his co-conspirators, which the IG considered a mitigating factor under 42 C.F.R. § 1001.102(c)(3).  Therefore, the IG reduced the period of Petitioner’s exclusion from 25 to 15 years.  IG Ex. 2 (revised).

Petitioner does not allege that any other mitigating factors recognized by 42 C.F.R. § 1001.102(c) exist in this case.  P. Br.

Page 15

**6.  Exclusion for 15 years is not unreasonable in this case.**

The Secretary requires by regulation that the ALJ determine whether the length of exclusion imposed is “unreasonable,” if a period greater than the minimum period is imposed by the IG.  42 C.F.R. § 1001.2007(a)(1)-(2).  The Board has interpreted the regulations as significantly limiting the scope of ALJ review.  The regulation states that the ALJ must determine whether the length of exclusion imposed is “unreasonable,” without definition of what is unreasonable or direction for how to determine whether a period of exclusion is unreasonable.  42 C.F.R. § 1001.2007(a)(1)(ii).  The drafters of the regulation explained that the intent of the regulation is to ensure that if the IG’s proposed period of exclusion is “within a reasonable range based on demonstrated criteria, the ALJ has no authority” to change the period of exclusion.  57 Fed. Reg. 3298, 3321 (Jan. 29, 1992).  The drafters provided no explanation of what are “demonstrated criteria.”

The Board has determined that 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(b) and (c) and determine whether the period of exclusion imposed by the IG falls within a “reasonable range.”  *Edwin L. Fuentes*, DAB No. 2988 at 7-10 (2020); *Juan de Leon, Jr.*, DAB No. 2533 at 4-5; *Wilder*, DAB No. 2416 at 8; *Joann Fletcher Cash*, DAB No. 1725 at 17 n.6 (2000).  The Board explained that, in determining whether a period of exclusion is “unreasonable,” the ALJ is to consider whether such period falls “within a reasonable range.”  *Cash*, DAB No. 1725 at 17 n.6.  The Board cautions that whether the ALJ thinks the period of exclusion is too long or too short is not the issue.  The ALJ may not substitute his or her judgment for that of the IG and may only change the period of exclusion in limited circumstances.  In *John (Juan) Urquijo*, DAB No. 1735 (2000), the Board concluded that if the IG considers an aggravating factor to extend the period of exclusion and that factor is not later shown to exist on appeal, or if the IG fails to consider a mitigating factor that is shown to exist, then the ALJ may decide the appropriate extension of the period of exclusion beyond the minimum.  In *Gary Alan Katz, R.Ph.*, DAB No. 1842 (2002), the Board suggested that when it is found that an aggravating factor considered by the IG is not proved before the ALJ, then some downward adjustment of the period of exclusion should be expected absent some circumstances that indicates no such adjustment is appropriate.  In this case, Petitioner does not argue that the IG considered an aggravating factor that did not exist or failed to consider a mitigating factor that did exist.  Therefore, I have no discretion to reassess the period of exclusion under current Board decisions.

Based on my de novo review, I conclude that a basis for exclusion exists and that the undisputed evidence establishes four aggravating factors and one mitigating factor.  The IG, in selecting a 15-year exclusion, did not consider aggravating factors shown not to exist or fail to consider mitigating factors that did exist.  IG Ex. 2 (revised) at 2-3.  I

Page 16

conclude that a period of exclusion of 15 years is within a reasonable range and not unreasonable considering the existence of four aggravating factors and one mitigating factor.  No basis exists for me to reassess the period of exclusion.  Exclusion is effective 20 days from the date of the IG’s notice of exclusion to Petitioner.  42 C.F.R. § 1001.2002(b).

Petitioner’s arguments in this case are that the IG improperly weigh the aggravating and mitigating factors in this case.  P. Br. at 1-2, 13-21.  Petitioner portrays his role in the conspiracy as minor compared to his co-conspirators.  He argues that his actions were the result of his overbearing employer and supervisor.  He argues that the IG weighed too heavily the amount of loss to victims of the conspiracy.  He argues that his incarceration was reduced by the district court to 10 years, but he was subsequently released after only nine months.  He argues that the suspension of his license in Virginia should be considered less significant than similar actions of his co-conspirators who were licensed professionals.  Petitioner argues his cooperation was more substantial than reflected by the period of exclusion imposed by the IG.  P. Br. 4-21.  Because I have no discretion to reassess the period of exclusion, Petitioner evidence and arguments are not relevant, even if accepted as true for purposes of summary judgment.4

Page 17

III. Conclusion

For the foregoing reasons, Petitioner is excluded from participation in Medicare, Medicaid, and all federal health care programs for 15 years effective May 19, 2022.

Endnotes

1   Pursuant to 42 C.F.R. § 1001.3001(a), Petitioner may apply for reinstatement only after the period of exclusion expires.  Reinstatement is not automatic upon completion of the period of exclusion.  Citations are to the 2021 revision of the Code of Federal Regulations (C.F.R.), unless otherwise stated.

2   The pronouns he, his, and him are used in this decision as Petitioner expressed no other preference.

3   Petitioner acknowledged in his plea agreement that he was subject to a maximum period of imprisonment of not more than 20 years for his conviction of conspiracy to commit health care fraud under 18 U.S.C. § 1349.  IG Ex. 4 at 1.  A federal criminal offense that is punishable by imprisonment for less than 25 years but ten or more years is a Class C felony.  18 U.S.C. § 3559(a)(3).  Petitioner also acknowledged in his plea agreement that he was subject to a maximum period of imprisonment of no more than five years for his conviction of conspiracy to offer and pay health care kickbacks under 18 U.S.C. § 371.  IG Ex. 4 at 1.  A federal criminal offense that is punishable by imprisonment for five years is a Class D felony.  18 U.S.C. § 3559(a)(4).

4   If I had discretion to reassess the additional period of exclusion imposed by the IG, I would be far less charitable than the IG was in reducing the period of exclusion from 25 to 15 years.  The facts Petitioner stipulated to as part of his plea agreement show significant actions by Petitioner in furtherance of the conspiracy.  Indeed, the stipulated facts show that Petitioner had a key role in the conspiracy.  IG Ex. 5.  Although Petitioner’s cooperation was treated by the IG as a mitigating factor, the weight of that factor would not weigh heavily in my decision regarding a reasonable period of exclusion in as much Petitioner’s cooperation was specifically required by his plea agreement.  IG Ex. 4 at 7-8.  In my opinion, Petitioner’s cooperation does not reflect trustworthiness, contriteness, or rehabilitation.  Finally, while the district court did reduce Petitioner’s sentence to confinement, there is no evidence that the district court considered whether protection of Medicare and Medicaid was necessary – a responsibility specifically entrusted to the IG under section 1128 of the Act.  The exclusion remedy serves twin congressional purposes:  the protection of federal funds and program beneficiaries from untrustworthy individuals and the deterrence of health care fraud.  S. Rep. No. 100-109, at 1-2 (1987), *reprinted in* 1987 U.S.C.C.A.N. 682, 686 (“clear and strong deterrent”); *Cash*, DAB No. 1725 at 18 (discussing trustworthiness and deterrence).  When Congress added section 1128(a)(3) in 1996, it again focused upon the desired deterrent effect: “greater deterrence was needed to protect the Medicare program from providers who have been convicted of health care, fraud felonies . . . .” H.R. Rep. 104-496(I), at 86 (1996), *reprinted in* 1996 U.S.C.C.A.N. 1865, 1886.
  
          /s/
        Keith W. Sickendick

                      Administrative Law Judge Back to top
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