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                              2019
                              Parvez Mehboob Fatteh, MD, DAB CR5485 (2019)
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Parvez Mehboob Fatteh, MD, DAB CR5485 (2019)








  
  
    

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





Parvez Mehboob Fatteh, MD,
(OI File No. 9-15-40007-9),
Petitioner,
v.
The Inspector General,
US Department of Health & Human Services.
Docket No. C-19-818Decision No. CR5485December 5, 2019

        
              
    

      DECISION
Petitioner is excluded from participating in Medicare, Medicaid, and all federal health care programs pursuant to section 1128(b)(1)(A)(i) of the Social Security Act (Act) (42 U.S.C. § 1320a-7(b)(1)(A)(i)), effective April 18, 2019. There is a proper basis for Petitioner’s exclusion based upon his conviction of a misdemeanor criminal offense related to financial misconduct committed after August 21, 1996, in connection with the delivery of a health care item or service. Petitioner’s exclusion for a minimum period of three years is not unreasonable. Act § 1128(c)(3)(D) (42 U.S.C. § 1320a-7(c)(3)(D)); 42 C.F.R. § 1001.201(b)(1).1
**Page 2**
I. Background
The Inspector General (IG) for the Department of Health and Human Services notified Petitioner by letter dated March 29, 2019, that he was excluded from participation in Medicare, Medicaid, and all federal health care programs for three years. The IG cited section 1128(b)(1) of the Act as authority for Petitioner’s exclusion based on his conviction in the California Superior Court, County of Orange (state court) of an offense described in section 1128(b)(1) of the Act. IG Exhibit (Ex.) 1 at 1.
Petitioner timely requested a hearing on May 22, 2019 (RFH). On June 7, 2019, the case was assigned to me to hear and decide. I convened a telephone prehearing conference on June 28, 2019, the substance of which is memorialized in my Prehearing Conference Order and Schedule for Filing Briefs and Documentary Evidence (Prehearing Order) issued on July 1, 2019.
On August 6, 2019, the IG filed a motion for summary judgment (IG Brief) with IG exhibits 1 through 15. Petitioner filed a response in opposition to the IG motion (P. Br.) with Petitioner’s exhibits (P. Exs.) 1 and 2 on September 26, 2019. The IG filed a reply on October 11, 2019. The parties have not objected to my consideration of the offered exhibits and IG Exs. 1 through 15 and P. Exs. 1 and 2 are admitted as evidence.
II. Discussion
**A. Applicable Law**
Section 1128(f) of the Act (42 U.S.C. § 1320a-7(f)) establishes Petitioner’s right to a hearing by an administrative law judge (ALJ) and judicial review of the final action of the Secretary of Health and Human Services (the Secretary).
Pursuant to section 1128(b)(1)(A) of the Act (42 U.S.C. § 1320a-7(b)(1)(A)), the Secretary may exclude from participation in any federal health care program an individual convicted under federal or state law of a misdemeanor criminal offense committed after August 21, 1996, related to fraud, theft, embezzlement, breach of fiduciary responsibility, or other financial misconduct: (i) in connection with the delivery of any health care item or service; or (ii) with respect to any act or omission in a health care program not subject to section 1128(a)(1), operated by or financed in whole or in part by any federal, state, or local government agency. Pursuant to section 1128(b)(1)(B) (42 U.S.C. § 1320a-7(b)(1)(B)), the Secretary may exclude from participation in any federal health care program an individual convicted under federal or state law of a criminal offense committed after August 21, 1996, related to fraud, theft, embezzlement, breach of fiduciary responsibility, or other financial misconduct with respect to any act or omission in a program (other than a health care program) operated or financed by a federal, state or local government agency. Section 1128(b)(1)(B) of the Act covers both
**Page 3**
misdemeanor and felony offenses. The Secretary has promulgated regulations implementing these provisions of the Act. 42 C.F.R. § 1001.201(a).
Section 1128(c)(3)(D) of the Act provides that an exclusion imposed under section 1128(b)(1) of the Act will be for a period of three years, unless the Secretary determines that a shorter period is appropriate because of mitigating circumstances or that a longer period is appropriate because of aggravating circumstances. 42 C.F.R. § 1001.201(b). Authorized aggravating and mitigating factors are listed in 42 C.F.R. § 1001.201(b)(2) and (3).
The standard of proof is a preponderance of the evidence, and there may be no collateral attack of the conviction that is the basis of the exclusion. 42 C.F.R. § 1001.2007(c)-(d). I advised the parties in my Prehearing Order that 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.
**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 participating in Medicare, Medicaid, and all other federal health care programs; and
Whether the length of the proposed 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 followed by the pertinent undisputed findings of fact and analysis.
**1. Petitioner timely filed his request for hearing and I have jurisdiction.**
There is no dispute that Petitioner timely requested a hearing and that 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
**Page 4**
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, completely 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, which are 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. 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 nonmoving party must show that there are material facts that remain in dispute, and that those facts either affect the proponent’s prima facie case or might establish a defense. *Garden City Med. Clinic*, DAB No. 1763 (2001); *Everett Rehab. & Med. Ctr.*, DAB No. 1628 (1997). It is insufficient for the nonmovant to rely upon mere allegations or denials to defeat the motion and proceed to hearing. *See Anderson v. Liberty Lobby, Inc*., 477 U.S. 242, 247 (1986).
There are no genuine issues of material fact in dispute in this case. Petitioner argues generally that: he was not convicted within the meaning of 42 C.F.R. § 1001.2; in approximately two years he will be eligible for reinstatement pursuant to 42 C.F.R. § 1001.3005; and the period of exclusion is unreasonably long given the existence of mitigating factors. RFH at 1-3; P. Br. at 6-16. For purposes of summary judgment, I accept as true and draw all favorable inferences for Petitioner from P. Exs. 1 and 2. Nevertheless, all issues raised by Petitioner must be resolved against him as a matter of law. Accordingly, I conclude that summary judgment is appropriate.
**3. Petitioner was convicted of an offense related to financial misconduct within the meaning of section 1128(b)(1)(A) of the Act, and the offense occurred after August 21, 1996, the date of enactment of the Health Insurance Portability and Accountability Act of 1996.**
**4. Petitioner was convicted of an offense related to financial misconduct in connection with the delivery of a health care item or service within the meaning of section 1128(b)(1)(A)(i) of the Act.**
**Page 5**
**5. There is a basis for Petitioner’s exclusion from Medicare, Medicaid, and all other federal health care programs under section 1128(b)(1)(A)(i) of the Act.**
**a. Undisputed Facts**
The following facts are undisputed or accepted as true for purposes of summary judgment. I advised the parties in the Prehearing Order that for purposes of summary judgment, a fact alleged in briefing and not specifically denied will be accepted as true and any evidence will be considered admissible and true, unless specific objection is made. Prehearing Order ¶ 8. I also advised the parties that, pursuant to 42 C.F.R. § 1005.15(c), Petitioner bears the burden of persuasion on any affirmative defenses or mitigating factors and the IG bears the burden on all other issues. Prehearing Order ¶ 4.
According to Petitioner, his conviction involved a single patient who was a California worker’s compensation patient, not a federal health care program beneficiary. Petitioner received one payment in April 2014 from Monarch Medical Group (Monarch) that he believed was for the purchase of his accounts receivable from patients for whom he prescribed medicinal creams. Petitioner believed this arrangement was legitimate and it was memorialized by a written contract. Petitioner was charged with a violation of California law for the arrangement, because his conduct was construed to be an upfront payment or rebate for referring patients to the pharmacy that worked with Monarch. IG Ex. 5 at 5, 29-30. I accept Petitioner’s representations as true for purposes of summary judgment.
On April 3, 2017, Petitioner was charged by a 12-count felony indictment with one count of conspiracy to commit medical insurance fraud; three counts of submitting false and fraudulent claims; two counts of receiving or accepting rebates for patient referrals; and six counts of insurance fraud. IG Ex. 8.
On August 14, 2018, Petitioner pleaded guilty to one misdemeanor count of violation of section 650 of the California Business and Professions Code. The remaining counts of the felony complaint were dismissed as part of a plea agreement. IG Ex. 5 at 17-20; IG Ex. 9 at 1-4. Petitioner stated as the factual basis for his guilty plea:
On or about and between April 4, 2014, and April 12, 2014, in Orange County, CA, I received a payment to buy my accounts receivable which, in effect, was a rebate for referring a patient to a pharmacy.
IG Ex. 5 at 19; IG Ex. 9 at 3. The misdemeanor sentencing recommendation related to Petitioner’s plea agreement provided for two years of informal probation, to pay various fees, and to make a $5,100 donation to the victim witness fund. The sentencing
**Page 6**
recommendation stated that restitution had been satisfied but did not state the amount of restitution or to whom it was paid. The sentencing recommendation provided that after two years of successful probation, Petitioner would be permitted to withdraw his guilty plea and enter a not guilty plea and the case would be dismissed. IG Ex. 5 at 21-22; IG Ex. 9 at 5-6.
Petitioner’s guilty plea to one misdemeanor count of violation of section 650 of the California Business and Professions Code was accepted by the state court. Imposition of sentence was suspended and Petitioner was placed on two years informal probation. Petitioner was ordered to pay various fees, the state court found restitution had been paid in full (the amount and recipient were not stated), and Petitioner was to make a $5,100 contribution to the victim witness fund. The state court stated that after two years of successful probation, Petitioner could withdraw his guilty plea, enter a not guilty plea, and the case would be dismissed if the District Attorney had no objection. IG Ex. 10 at 4-5; IG Ex. 11 at 8-9; P. Br. at 5-7; RFH at 2.
**b. Analysis**
The March 29, 2019 IG notice did not specify the subsection of section 1128(b)(1) of the Act applicable in this case. The notice did not identify whether the IG determined that Petitioner’s offense was considered by the IG to be fraud, theft, embezzlement, breach of fiduciary responsibility, or other financial misconduct. The regulations require that Petitioner be notified of the basis for exclusion and do not require any particular level of specificity. 42 C.F.R. § 1001.2002(c)(1). In this case, the notice advised Petitioner of the general basis for permissive exclusion. Petitioner did not raise any objection to the adequacy of the notice or allege any adverse impact upon his ability to defend in this case. Accordingly, I conclude that the IG notice of the exclusion was adequate to satisfy the requirements of 42 C.F.R. § 1001.2002(c).
The IG is more specific in her brief, alleging that Petitioner’s offense was related to financial misconduct under section 1128(b)(1)(A) of the Act, and that the offense was in connection with the delivery of a health care item or service under section 1128(b)(1)(A)(i). IG Br. at 11-13.
Section 1128(b)(1)(A)(i) of the Act provides:
(b) PERMISSIVE EXCLUSION. – The Secretary may exclude the following individuals and entities from participation in any Federal health care program (as defined in section 1128B(f)):
(1) CONVICTION RELATING TO FRAUD. – Any individual or entity that has been convicted for an offense
**Page 7**
which occurred after [August 21, 1996] the date of the enactment of the Health Insurance Portability and Accountability Act of 1996, under Federal or State law –
(A) of a criminal offense consisting of a misdemeanor relating to fraud, theft, embezzlement, breach of fiduciary responsibility, or other financial misconduct –
(i) in connection with the delivery of a health care item or service, . . .
The elements for exclusion pursuant to section 1128(b)(1)(A)(i) are: (1) conviction in a state or federal court; (2) of a misdemeanor offense related to fraud, theft, embezzlement, breach of fiduciary responsibility, or other financial misconduct; (3) the offense occurred after August 21, 1996; and (4) the offense is in connection with the delivery of a health care item or service.
Petitioner does not dispute that on August 14, 2018, he entered a guilty plea to a misdemeanor count of a violation of section 650 of the California Business and Professions Code. Petitioner does not dispute that the violation occurred after August 21, 1996. Petitioner does not dispute that the offense involved financial misconduct. Petitioner does not dispute that the offense was committed in connection with the delivery of a health care item or service. RFH; P. Br.
Petitioner argues, however, that he was not convicted within the meaning of section 1128(b)(1)(A) of the Act and not subject to permissive exclusion for that reason. RFH at 1-3; P. Br. at 6-8. There are no factual disputes as to the actions of the state court and whether Petitioner was convicted is an issue of law, which must be resolved against Petitioner as a matter of law.
Section 1128(i) of the Act provides the controlling definition of conviction applicable to exclusions pursuant to section 1128 of the Act.
(i)  Convicted Defined.—For purposes of subsections (a) and (b) [§ 1128(a) and (b)], an individual or entity is considered to have been “convicted” of a criminal offense—
(1) when a judgment of conviction has been entered against the individual or entity by a Federal, State, or local court, regardless of whether there is an appeal pending or whether the judgment of conviction or other record relating to criminal conduct has been expunged;
**Page 8**
(2) when there has been a finding of guilt against the individual or entity by a Federal, State, or local court;
(3) when a plea of guilty or nolo contendere by the individual or entity has been accepted by a Federal, State, or local court; or
(4) when the individual or entity has entered into participation in a first offender, deferred adjudication, or other arrangement or program where judgment of conviction has been withheld.
There is no dispute that Petitioner pleaded guilty to the offense or that the state court accepted the guilty plea. In fact, the state court specifically accepted Petitioner’s guilty plea having found that there was no “legal cause why judgment should not be pronounced” as Petitioner pleaded guilty to the offense. IG Ex. 10 at 4-5; IG Ex. 11 at 8-9. Accordingly, I conclude that Petitioner was convicted based on the definition of conviction under section 1128(i)(3) of the Act.
Petitioner does not deny that he pleaded guilty or that the guilty plea was accepted by the state court. Rather, Petitioner argues that if he completes probation, he will be permitted to withdraw his guilty plea, enter a not guilty plea, and then the charge against him will be dismissed. However, it is undisputed that when the IG excluded Petitioner, Petitioner remained on probation. There is no dispute that Petitioner has not completed his probation, the state court has not permitted him to withdraw his guilty plea and enter a not guilty plea, and the state court has not dismissed the charge. Further, it was Petitioner’s guilty plea and the acceptance of his plea that constituted a conviction under section 1128(i)(3) of the Act. The statute creates no exception for the contingency that state law may subsequently permit that the guilty plea be withdrawn after a period of probation. Petitioner urges me to treat his situation as a deferred prosecution rather than a deferred adjudication. P. Br. at 7-8. The undisputed facts show, however, that there was no deferred prosecution in this case. Petitioner was charged by a felony complaint. IG Ex. 8. Petitioner negotiated a plea agreement. IG Ex. 9. Petitioner made multiple court appearances personally and/or by counsel leading up to and through his guilty plea, the acceptance of that plea, and his conviction. IG Exs. 10-11.
Accordingly, I conclude that all the elements necessary for the IG to exercise her discretion to permissively exclude Petitioner pursuant to section 1128(b)(1)(A)(i) of the Act are satisfied in this case.
Petitioner also argues that 42 C.F.R. § 1001.3005 provides for withdrawing the exclusion and reinstatement into Medicare retroactive to the exclusion effective date, when a conviction is reversed or vacated. Petitioner argues that if he completes probation, if he is permitted to withdraw his guilty plea, if a plea of not guilty is entered, and the charge is
**Page 9**
dismissed, that is tantamount to a reversal or vacation of his conviction requiring that his exclusion be withdrawn retroactively. Petitioner also argues that the period of exclusion is unreasonable if it extends beyond the point in time when Petitioner’s guilty plea is withdrawn and the charge dismissed.
The regulation provides:
(a) An exclusion will be withdrawn and an individual or entity will be reinstated into Medicare, Medicaid, and other Federal health care programs retroactive to the effective date of the exclusion when such exclusion is based on—
(1) A conviction that is reversed or vacated **on appeal**;
(2) An action by another agency, such as a State agency or licensing board, that is reversed or vacated on appeal; or
(3) An OIG exclusion action that is reversed or vacated at any stage of an individual’s or entity’s administrative appeal process.
42 C.F.R. § 1001.3005(a) (emphasis added). This regulation has no application to Petitioner’s case according to its plain language. There is no evidence or favorable inference to be drawn for Petitioner that he filed an appeal from his criminal conviction, which may result in the reversal or vacation of his conviction. Therefore, Petitioner’s legal argument based on 42 C.F.R. § 1001.3005(a) is without merit.
**6. Petitioner’s exclusion for three years is not unreasonable considering the absence of any mitigating factor.**
The period of exclusion under section 1128(b)(1) is three years, unless aggravating or mitigating factors justify lengthening or shortening that period. Act § 1128(c)(3)(D); 42 C.F.R. § 1001.201(b)(1). Only the aggravating factors authorized by 42 C.F.R. § 1001.201(b)(2) may be considered to increase the period of exclusion, and only the mitigating factors authorized by 42 C.F.R. § 1001.201(b)(3) may be considered to reduce the period of exclusion. Mitigating factors are:
(i) The individual or entity was convicted of three or fewer offenses, and the entire amount of financial loss (both actual loss and reasonably expected loss) to a government agency or program or to other individuals or entities due to the acts that resulted in the conviction and similar acts is less than $5,000;
**Page 10**
(ii) The record in the criminal proceedings, including sentencing documents, demonstrates that the court determined that the individual had a mental, emotional, or physical condition, before or during the commission of the offense, that reduced the individual’s culpability; or
(iii) The individual’s or entity’s cooperation with Federal or State officials resulted in—
(A) Others being convicted or excluded from Medicare, Medicaid or any of the other Federal health care programs, or
(B) Additional cases being investigated or reports being issued by the appropriate law enforcement agency identifying program vulnerabilities or weaknesses, or
(C) The imposition of a civil money penalty against others; or
(iv) Alternative sources of the type of health care items or services furnished by the individual or entity are not available.
42 C.F.R. § 1001.201(b)(3). A mitigating factor may justify a reduction in the three-year period of exclusion, but the regulations do not state that it must result in a downward adjustment or how significant such an adjustment should be. 42 C.F.R. § 1001.201(b)(3). Similarly, where an aggravating factor is present in a case, the regulations do not require that it must result in lengthening the period of exclusion or specify how significant the adjustment should be. 42 C.F.R. § 1001.201(b)(2). Pursuant to 42 C.F.R. § 1001.2002(c)(2), the IG is required to state in the notice of exclusion the factors considered in setting the length of the exclusion.
The March 29, 2019 IG notice does not reflect that the IG considered any aggravating factors in determining to impose a three-year exclusion. IG Ex. 1. The IG notice shows that the IG considered a submission by Petitioner’s attorney and determined not to waive exclusion because the waiver request was not submitted by “the person directly responsible for administering the Federal or State health care program for which the waiver” was requested as required by 42 C.F.R. § 1001.1801(a). IG Ex. 1 at 1. The notice also shows that the IG considered no mitigating factors.
The applicable regulation broadly states that the ALJ must determine whether the length of exclusion imposed is “unreasonable.” 42 C.F.R. § 1001.2007(a)(1)(ii). Pursuant to 42 C.F.R. § 1005.20(b), I have authority to “affirm, increase or reduce” the period of exclusion proposed by the IG or to reverse the exclusion. The Board, however, has made
**Page 11**
clear that the role of the ALJ in exclusion cases is more limited than suggested by the regulations. According to the Board, the ALJ’s role 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 and to determine whether the period of exclusion imposed by the IG falls within a reasonable range. *Juan de Leon, Jr.*, DAB No. 2533 at 4-5 (2013); *Craig Richard Wilder, M.D.*, DAB No. 2416 at 8 (2011); *Joann Fletcher Cash*, DAB No. 1725 at 17 n.6 (2000). The Board has 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 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 made clear 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 make a decision as to the appropriate extension of the period of exclusion beyond the minimum. In *Gary Alan Katz, R.Ph.*, DAB No. 1842 (2002), the Board suggests 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 indicate no such adjustment is appropriate. Thus, the Board has by these various prior decisions significantly limited my authority under the applicable regulation to judge the reasonableness of the period of exclusion.
Petitioner argues that there are three mitigating factors that should be considered, the existence of which make a three-year exclusion unreasonable. Petitioner argues that he was convicted of only one misdemeanor offense and there was no financial loss to anyone or any entity. Petitioner argues that he cooperated with federal and state prosecutors and investigators. Finally, Petitioner argues that he is one of a limited number of physicians that provide the type of services he provides. Petitioner asserts that there are material issues of disputed fact as to the existence of these three mitigating factors that prevent summary judgment. Petitioner bears the burden of proof and the burden of persuasion on any mitigating factors. Prehearing Order ¶ 4. Petitioner may not defeat a motion for summary judgment by mere denials but must present some evidence to show that a dispute of material fact exists. *Anderson*, 477 U.S. at 247. Petitioner placed in evidence his affidavit (P. Ex. 1) and the affidavit of Kayvan Haddadan, MD (P. Ex. 2).
Regarding the mitigating factor established by 42 C.F.R. § 1001.201(b)(3)(i), the elements are: (1) Petitioner was convicted of three or fewer offenses; and (2) the entire amount of financial loss (both actual loss and reasonably expected loss) to a government agency or program or to other individuals or entities due to the acts that resulted in the
**Page 12**
conviction and similar acts is less than $5,000. Both elements must exist as indicated by the use of the conjunction “and” in order for the mitigating factor to exist. There is no dispute that Petitioner was convicted of only one misdemeanor offense. However, Petitioner has presented no evidence from which it may be inferred that the loss or expected loss from his criminal act amounted to less than $5,000. Petitioner asserts in his brief that there was no loss to any entity or individual, but offers no evidence in support of that assertion. P. Br. at 11.
Regarding the mitigating factor established by 42 C.F.R. § 1001.201(b)(3)(iii), the elements are: (1) Petitioner cooperated with federal or state officials; (2) Petitioner’s cooperation resulted in conviction of others; or (3) the exclusion of others from Medicare, Medicaid, or other federal health care programs; or (4) additional cases being investigated or reports issued by appropriate law enforcement agencies that identify program vulnerabilities or weakness; or (5) the imposition of a civil money penalty against others. Petitioner states in his affidavit that he cooperated with federal prosecutors and investigators. P. Ex. 1. I accept the assertion Petitioner cooperated as true for purposes of summary judgment. However, under this mitigating factor the fact Petitioner cooperated is insufficient as there must be evidence that the cooperation had one of the effects specified. Petitioner does not allege or present any evidence from which I can infer that his cooperation resulted in any of the effects required to establish the existence of this mitigating factor.
Regarding the mitigating factor established by 42 C.F.R. § 1001.201(b)(3)(iv), it must be shown that alternative sources of the type of health care items or services furnished by the Petitioner are not available if he is excluded. Dr. Haddadan states that there is a shortage of pain management and addiction medicine physicians. He states that Petitioner’s exclusion has exacerbated the shortage. P. Ex. 2. However, Dr. Haddadan does not state that there are no other physicians who can deliver the services Petitioner delivered. Therefore, Dr. Haddadan’s affidavit does not raise an inference that the services Petitioner formerly delivered are not available due to Petitioner’s exclusion. Indeed, Petitioner admits that he is one of “a limited number of physicians” who can deliver services that he formerly delivered. P. Br. at 13; IG Ex. 5 at 9-10. Accordingly, I conclude that there is no genuine dispute that Petitioner’s exclusion does not result in the type of services he delivered not being available.
Petitioner conceded in his response to the IG notice of the proposal to exclude that the mitigating factor established by 42 C.F.R. § 1001.201(b)(3)(ii) does not exist in this case. IG Ex. 5 at 7.
Unfortunately for Petitioner, even though I accept the facts he asserts as true and draw all inferences in his favor, none of the facts he asserts establish any of the other mitigating factors permitted to be considered under 42 C.F.R. § 1001.201(b)(3). Accordingly,
**Page 13**
I conclude that I have no authority to reduce the period of exclusion set by the IG and that the period set by the IG is not unreasonable.
III. Conclusion
For the foregoing reasons, Petitioner is excluded from participation in Medicare, Medicaid, and all other federal health care programs for a period of three years, effective April 18, 2019.


          /s/
        Keith W. Sickendick

                      Administrative Law Judge
      1. Pursuant to 42 C.F.R. § 1001.3001, 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 2018 revision of the Code of Federal Regulations (C.F.R.), unless otherwise stated. back to note 1 Back to top
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