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                              2022
                              Jorge Sfeir, MD, DAB CR6176 (2022)
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Jorge Sfeir, MD, DAB CR6176 (2022)








  
  
    

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





Jorge Sfeir, MD
(O.I. File No. 5-11-40847-9)
Petitioner,

v.

Inspector General
U.S. Department of Health and Human Services,
Respondent.
Docket No. C-21-1114Decision No. 6176October 14, 2022

        
              
    

      DECISION

Petitioner, Jorge Sfeir, MD, is excluded from participating in Medicare, Medicaid, and all federal health care programs pursuant to section 1128(a)(1) of the Social Security Act (Act) (42 U.S.C. § 1320a-7(a)(1)), effective September 20, 2021.  There is a basis for exclusion.  Petitioner’s exclusion for a minimum of five years is required by section 1128(c)(3)(B) of the Act (42 U.S.C. § 1320a-7(c)(3)(B)).  An additional exclusion of 17 years, for a total minimum exclusion of 22 years,1 is not unreasonable based upon the existence of three aggravating factors and no mitigating factors.

Page 2

I.  Background

The Inspector General (IG) of the U.S. Department of Health and Human Services notified Petitioner by letter dated August 31, 2021, that he was excluded from participation in Medicare, Medicaid, and all federal health care programs for 22 years.  The IG cited section 1128(a)(1) of the Act as the basis for Petitioner’s exclusion.  The IG stated that the exclusion was based on Petitioner’s conviction in the United States District Court, Northern District of Illinois (district court), of a criminal offense related to the delivery of an item or service under Medicare or a state health care program.  The IG notified Petitioner that the IG extended the mandatory five-year exclusion to 22 years because Petitioner’s acts that resulted in his conviction were intended to cause or caused a financial loss of $50,000 or more to a government agency or program or one or more other entities, the sentence imposed by the district court included incarceration, and Petitioner was subject to other adverse action by a federal, state, or local government agency or board based on the same set of circumstances that are the basis for exclusion.  IG Exhibit (Ex.) 1 at 1.

Petitioner requested a hearing (RFH) by a letter dated September 8, 2021, that was postmarked on September 14, 2021.  On October 13, 2021, the case was assigned to me to hear and decide.  I convened a telephone prehearing conference on November 9, 2021, the substance of which is memorialized in my Prehearing Conference Order and Schedule for Filing Briefs and Documentary Evidence issued on November 19, 2021 (Prehearing Order).

The IG filed a motion for summary judgment and supporting memorandum on December 21, 2021 (IG Br.) with IG Exs. 1 through 5.  On about August 17, 2022, Petitioner filed his response to the IG’s motion for summary judgment (P. Br.).  Petitioner also filed on about August 17, 2022, three documents that I treat as if marked as Petitioner’s exhibits (P. Exs.) 1 through 3:

P. Ex. 1 – Document titled “Court presentation Dr. Sfeir request” (Departmental Appeals Board Electronic Filing System (DAB E-File) # 18);

P. Ex. 2 – Document titled “Defendant’s Clarifications and Objections to the Presentence Investigation Report; and Position Paper and Commentary on Sentencing Factors” (DAB E-File # 18a); and

P. Ex. 3 – Document titled “Defendant’s Motion to Modify His Term of Imprisonment Pursuant to 18 U.S.C. § 3582(c)” (DAB E-File # 18b).

On August 24, 2022, the IG filed a reply brief (IG Reply).

Page 3

Petitioner did not object to my consideration of IG Exs. 1 through 5 and they are admitted as evidence.  The IG objected to my consideration of Petitioner’s exhibits.  IG Reply at 1, 5-6.  P. Ex. 1 is an unsworn statement of Petitioner, offered in support of the arguments in his response to the IG’s motion for summary judgment.  P. Ex. 1 is not admitted as evidence as it is unsworn.  42 C.F.R. § 1005.16(a), (b) (witness testimony must be under oath or affirmation).  However, P. Ex. 1 is treated and considered as Petitioner’s additional argument.  P. Exs. 2 and 3 are documents related to Petitioner’s criminal conviction.  P. Ex. 2, Petitioner’s clarifications and objections to the presentence investigation presented to the district court, discusses in detail Petitioner’s position on the amount of loss to Medicare; the document is relevant for that reason, and it is admitted as evidence.  P. Ex. 3, Petitioner’s motion in the district court to modify the term of his imprisonment is not admitted as it is not relevant to any issue that I may decide.  42 C.F.R. § 1005.17(c).  Petitioner may not collaterally attack his conviction in this forum, and I have no authority to review Petitioner’s conviction or sentencing.  My authority is limited to review whether there is a basis for Petitioner’s exclusion and whether the period of exclusion falls within a reasonable range or is unreasonable.

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(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)).

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 him or her in a federal, state, or local court whether an appeal is pending or the record of the conviction is 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 is withheld.  The Secretary has promulgated regulations implementing these provisions of the Act.  42 C.F.R. § 1001.101(a), (c).2

Page 4

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.  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 participating in Medicare, Medicaid, and all other federal health care programs; and

Whether the length of the 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 my findings of fact and analysis.

**1.  Petitioner timely filed his request for hearing, and I have jurisdiction.**

There is no dispute that Petitioner’s request for hearing was timely filed.  I conclude that I have jurisdiction pursuant to section 1128(f) of the Act and 42 C.F.R. pt. 1005.

**2.  Summary judgment is appropriate.**

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 the right to participate in the hearing.  42 C.F.R.

Page 5

§§ 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, 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 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).

There are no genuine issues of material fact in dispute in this case.  Petitioner does not dispute that he pleaded guilty to and was convicted of health care fraud.  Petitioner argues that exclusion for 22 years is unreasonable.  P. Br.; P. Ex. 1.  I accept Petitioner’s assertions of fact as true for purposes of summary judgment, except as specifically noted.  However, the facts that Petitioner asserts do not show that the IG considered aggravating factors that were not authorized or established by the evidence or establish any of the mitigating factors I am authorized to consider under the regulations discussed hereafter.  Therefore, the reasonableness of exclusion for 22 years must be resolved against Petitioner as a matter of law.  Accordingly, I conclude that summary judgment is appropriate.

Page 6

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

**a.  Facts**

The material facts are undisputed.

On October 21, 2020, the district court entered a judgment of guilty pursuant to Petitioner’s guilty plea to Count 3 of the Superseding Indictment, which alleged health care fraud in violation of 18 U.S.C. § 1347.  IG Ex. 4 at 1.

Count 3 of the Superseding Indictment alleged that Petitioner and others knowingly and willfully executed and attempted to execute a scheme to defraud Medicare.  It was alleged that Petitioner and others submitted false claims for home health services provided from on or about July 26, 2013 through on or about September 23, 2013.  The claims were alleged to be false and not entitled to payment because the Medicare beneficiary was not confined to home and the services were not medically necessary.  IG Ex. 2 at 10.

Petitioner admitted in his Plea Declaration that he was guilty of the charge alleged by Count 3 of the Superseding Indictment.  Specifically, Petitioner admitted that he falsely certified that a Medicare beneficiary was homebound, qualified for home health care services including skilled nursing services and in-home physician visits, and falsely prescribed certain diagnostic tests for the beneficiary that were not medically necessary or entitled to payment by Medicare.  IG Ex. 3 at 2-6.  Petitioner reserved the right to contest the appropriate amount of restitution that might be ordered by the district court.  IG Ex. 3 at 8.

On October 21, 2020, the district court sentenced Petitioner to 18 months in prison and ordered him to pay restitution of $4,278,693 to the Centers for Medicare & Medicaid Services (CMS), which administers Medicare.  IG Ex. 4 at 2-3.  Petitioner disputes that $4,278,693 accurately reflects the amount of actual or intended loss to Medicare.  Petitioner argues that the loss was less than $50,000 without presenting an affidavit or declaration or any other evidence in support of that position to show there is a genuine dispute of material fact.  P. Br. at 2 ¶ 4 (document page counter).  Petitioner’s assertion is also contrary to an admission made to the district court.  In his response to the presentence investigation filed with the district court Petitioner challenged the government’s assertion that the loss or intended loss exceeded $4 million.  Petitioner argued that the amount of loss should be calculated based only on the amount billed to Medicare for the five specific patients listed in the Superseding Indictment.  Petitioner stated that the government’s proof was ample and reliable regarding those patients.

Page 7

Petitioner admitted that the amount billed to Medicare for the five patients totaled $142,594.05.  P. Ex. 2 at 2-4.  The district court clearly rejected Petitioner’s position by ordering restitution of $4,278,693 to CMS.  IG Ex. 4 at 3.  As already noted, Petitioner cannot collaterally attack his conviction and I have no authority to review the determinations of the district court.  42 C.F.R. § 1001.2007(d).  Therefore, I find that Petitioner is bound by the district court’s determination of loss or intended loss by Medicare as reflected by the amount of restitution ordered.  Even if one accepted Petitioner’s admission in the district court that the amount billed to Medicare and the loss to that program was $142,594.05, that amount far exceeds $50,000.

On December 7, 2020, the Illinois Department of Financial and Profession Regulation, Division of Professional Regulation, indefinitely suspended Petitioner’s physician and surgeon license effective December 21, 2020.  The indefinite suspension was based on Petitioner’s October 21, 2020 conviction of health care fraud.  IG Ex. 5.

**b.  Analysis**

The IG cites section 1128(a)(1) of the Act as the basis for Petitioner’s mandatory exclusion.  The statute provides in relevant part:

(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.

Act, § 1128(a)(1).  Congress has, by the plain language of section 1128(a)(1) of the Act, required the Secretary to exclude from participation in Medicare, Medicaid, and all federal health care programs any individual or entity:  (1) convicted of a criminal offense, whether a misdemeanor or felony; (2) where the offense is related to the delivery of an item or service; and (3) the delivery of the item or service was under Medicare or a state health care program.

The elements that trigger an exclusion under section 1128(a)(1) of the Act are triggered in this case.  Petitioner does not dispute that he was convicted of a criminal offense.  Petitioner pleaded guilty, thereby admitting that he committed health care fraud against Medicare.  IG Ex. 3 at 2-6.  The district court accepted Petitioner’s guilty plea to health care fraud and entered a judgment finding Petitioner guilty of health care fraud.  IG Ex. 4

Page 8

at 1.  Accordingly, Petitioner was convicted within the meaning of the Act.  Act § 1128(i)(1)-(3).

Petitioner does not dispute that he admitted by his plea that Medicare was the target of his health care fraud.  IG Ex. 3 at 2-6; P. Br.; P. Ex. 1; RFH.  Petitioner admitted to the district court that he falsely certified that a Medicare beneficiary was homebound, qualified for home health care services including skilled nursing services and in-home physician visits, and falsely prescribed certain diagnostic tests for the beneficiary that were not medically necessary or entitled to payment by Medicare.  IG Ex. 3 at 2-6.  I conclude, based on the undisputed facts, that there is a common-sense connection or nexus between Petitioner’s health care fraud and the delivery of an item or service under the Medicare program.  *Saadite A. Green*, DAB No. 2940 at 6-7 (2019) (and cases cited therein).

Accordingly, I conclude that all elements that trigger mandatory exclusion pursuant to section 1128(a)(1) of the Act are satisfied and the IG has a basis to exclude Petitioner.  Because I have found that there is a basis for Petitioner’s exclusion pursuant to section 1128(a)(1) of the Act, Congress has mandated his exclusion.  Neither the IG nor I have any discretion not to exclude Petitioner in this case as we are both bound to follow the federal statutes and regulations.  42 C.F.R. § 1005.4(c)(1).

Petitioner argued in his request for hearing that his criminal case is not completely resolved.  RFH.  However, even accepting that fact as true for purposes of summary judgment, it is not grounds to set aside or delay Petitioner’s exclusion.  A judgment of conviction was entered against Petitioner by the district court.  Therefore, he was convicted within the meaning of section 1128(i)(1) of the Act.  Section 1128(i)(1) specifically provides that one is convicted regardless of whether an appeal of the conviction is pending.  Furthermore, the regulations already provide adequate relief if Petitioner’s conviction is overturned on appeal in the federal courts.  The IG has provided by regulation that an exclusion will be withdrawn, and the excluded individual reinstated to Medicare, Medicaid, and all federal health care programs retroactive to the date of exclusion if the individual’s conviction is reversed or vacated on appeal.  42 C.F.R. § 1001.3005(a).  I am bound to follow federal statutes and regulations.  42 C.F.R. § 1005.4(c)(1).

**4.  Pursuant to section 1128(c)(3)(B) of the Act, a five-year period of exclusion is mandatory.**

I have concluded that there is a basis to exclude Petitioner pursuant to section 1128(a)(1) of the Act.  Therefore, the IG must exclude Petitioner for a minimum period of five years pursuant to section 1128(c)(3)(B) of the Act.  The IG has no discretion to impose a lesser period, and I may not reduce the period of exclusion to fewer than five years.

Page 9

The remaining issue is whether it is unreasonable to extend Petitioner’s exclusion by an additional 17 years.  My determination of whether the period of exclusion in this case is unreasonable turns on whether:  (1) the IG has proven that there are aggravating factors; (2) Petitioner has proven that the IG considered an aggravating factor that does not exist or that there are mitigating factors that the IG failed to consider; and (3) the period of exclusion is within a reasonable range.

**5.  Three aggravating factors authorized by 42 C.F.R. § 1001.102(b) are present that justify extending the minimum period of exclusion to 22 years.**

The IG notified Petitioner that three aggravating factors are present in this case that justify an exclusion of more than five years:

1.  Petitioner’s acts that resulted in his conviction, or similar acts, caused or were intended to cause, a financial loss to a government agency or program of $50,000 or more.

2.  The sentence imposed by the court included a period of incarceration.

3.  Petitioner was subject to other adverse action by the Illinois Department of Financial and Profession Regulation, Division of Professional Regulation, which indefinitely suspended Petitioner’s physician and surgeon license effective December 21, 2020, based on Petitioner’s October 21, 2020 conviction of health care fraud.  IG Ex. 5.

IG Ex. 1 at 1.  I conclude that each aggravating factor is established by undisputed facts.

Petitioner does not dispute that the district court ordered him to pay restitution of more than $4 million.  IG Ex. 4 at 3.  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).  Furthermore, Petitioner admitted in his response to the presentence report submitted to the district court that the fraudulent bills submitted to Medicare for five Medicare beneficiaries amounted to $142,594.05.  Thus, contrary to his arguments, Petitioner has admitted that the loss to Medicare was at least $50,000 or more.  Petitioner’s argument that the loss to Medicare was less than $50,000 is unsupported by an affidavit, declaration, or any other evidence.  I conclude that Petitioner’s argument is insufficient to show that there is genuine dispute as to the material fact of the amount of the loss.  I further conclude that the undisputed evidence establishes the existence of the first aggravating factor established by 42 C.F.R. § 1001.102(b)(1).

Page 10

It is also undisputed that the district court sentenced Petitioner to incarceration for 18 months, which establishes the existence of the second aggravating factor considered by the IG under 42 C.F.R. § 1001.102(b)(5).  IG Ex. 4 at 2.

Petitioner does not dispute that the Illinois Department of Financial and Profession Regulation, Division of Professional Regulation, indefinitely suspended his physician and surgeon license effective December 21, 2020, based on his October 21, 2020 conviction of health care fraud.  IG Ex. 5.  Accordingly, I conclude that the undisputed facts show that the third aggravating factor established by 42 C.F.R. § 1001.102(b)(9) is present in this case.

**6.  Petitioner has not met his burden to establish by a preponderance of the evidence a mitigating factor authorized by 42 C.F.R. § 1001.102(c).**

If any of the aggravating factors authorized by 42 C.F.R. § 1001.102(b) justify an exclusion of longer than five years, as they do in this case, then mitigating factors may be considered as a basis for reducing the period of exclusion to no less than five years.  42 C.F.R. § 1001.102(c).  The IG did not list, and therefore did not consider, any mitigating factors in deciding to extend Petitioner’s exclusion to 22 years.  IG Ex. 1 at 1.

The only mitigating factors that I am authorized to consider are listed in 42 C.F.R. § 1001.102(c):

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

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

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

Page 11

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

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

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

Petitioner has the burden to prove by a preponderance of the evidence that there is a mitigating factor for me to consider.  42 C.F.R. § 1005.15(c); Prehearing Order ¶ 4.

Petitioner argues that a 22-year exclusion is unreasonable.  He requests that I reduce the period of exclusion to the period he has been unable to practice medicine.  P. Ex. 1 at 2, 12.  Petitioner urges that I consider, among other things:

The government agreed to allow him to plead guilty to only one of 15 counts;
	He felt he was not guilty but pleaded guilty based on his uncertainty about defending as to one patient who he now agrees may not have been homebound as required for the Medicare claims submitted for his services or pursuant to his orders;
	He pleaded guilty, in part, to spare his patients from having to testify in the district court;
	Out of hundreds of cases examined, the government only found a few questionable cases that he was confident he could show at trial were baseless;
	The government confiscated $48,000 from his bank accounts;
	He was not in charge of the scheme to defraud Medicare, he was only a doctor visiting patients and signing paperwork, he did not intend to commit fraud, he just intended to help his patients;
	The district court gave too much weight to the prosecution’s estimate of a loss to the government of more than $4 million;Page 12

The district court considered him old enough and experienced enough to recognize the fraud perpetrated, but that was incorrect as he did not know about the activities of the company that employed him as part of the scheme;
	It is unfair that the district court wanted to make an example of him;
	He is an honorably discharged and retired Army veteran;
	He has saved hundreds and possibly thousands of people by his dedicated, competent, and professional care;
	His term in prison was particularly harsh due to the raging COVID-19 pandemic and his advanced age;
	He has been unable to practice since January 2017, which is more than five years;
	He is unlikely to practice medicine again due to his age, but would like his medical license back to potentially teach or to engage in humanitarian missions;
	He requests an opportunity to redeem himself;
	He has been diligent in observing the limitations of his probation;
	He requests mercy; and
	His personal and family history.P. Br.; P. Ex. 1.

I accept Petitioner’s assertions and representations as true for purposes of summary judgment.  However, not one of Petitioner’s asserted mitigating factors is a mitigating factor that the IG or I am authorized to consider under 42 C.F.R. § 1001.102(c).  Therefore, Petitioner has failed to meet his burden to show the existence of a mitigating factor.  I conclude that Petitioner has failed to show any genuine dispute that there is a mitigating factor that may be considered under 42 C.F.R. § 1001.102(c) that the IG failed to consider, even if I accept his allegations as true for purposes of summary judgment.

Petitioner argues that exclusion for 22 years is an extreme, cruel, and harsh punishment.  P. Br. at 4 (document page counter); P. Ex. 1 at 2.  Petitioner’s argument could be construed to be that his exclusion for 22 years is a cruel and unusual punishment that violates the Constitutional prohibition of such punishment.  U.S. Const. amend. VIII.  Exclusions imposed by the IG are civil sanctions, remedial in nature and not punitive and

Page 13

criminal.  Because exclusions are remedial sanctions, they do not violate the double jeopardy clause or the prohibition against cruel and unusual punishment.  *Manocchio v. Kusserow*, 961 F.2d 1539 (11th Cir. 1992); *Greene v. Sullivan*, 731 F. Supp. 838 (E.D. Tenn. 1990); *Joann Fletcher Cash*, DAB No. 1725 (2000); *Douglas Schram, R.Ph.*, DAB No. 1372 (1992); and *Janet Wallace, L.P.N.*, DAB No. 1326 (1992).3  Arguments that the exclusion provisions are anything but remedial have been found to be without merit.  *Manocchio*, 961 F.2d at 1541-42;*Greene*, 731 F. Supp. at 839-40.  Many federal courts have also rejected claims that the Secretary’s exclusion procedures amount to a deprivation of due process, finding no constitutionally protected property or liberty interests.  *Rodabaugh v. Sullivan*, 943 F.2d 855 (8th Cir. 1991); *Lavapies v. Bowen*, 883 F.2d 465 (6th Cir. 1989); *Hillman Rehab. Ctr. v. U.S. Dep’t. of Health & Human Servs.*, No. 98-3789 (GEB), slip op. at 16, 1999 WL 34813783, at 16 (D.N.J. May 13, 1999); *Travers v. Sullivan*, 801 F. Supp. 394, 404‐05 (E.D. Wash. 1992), *aff’d*, *Travers v. Shalala*, 20 F.3d 993 (9th Cir. 1994).  Accordingly, I conclude that Petitioner’s possible Constitutional argument is without merit.

Petitioner requests that his exclusion be reduced to the mandatory minimum five years and that the five-year period of exclusion run from 2017, when he had to stop practicing medicine.  P. Ex. 1 at 12.  However, the applicable regulation is clear that the effective date of exclusion is 20 days after the date of the IG’s notice of exclusion, and the IG, the Board, and I have no discretion to change the effective date as Petitioner requests, even if I was inclined to do so.  42 C.F.R. § 1001.2002(b).

**7.  Exclusion for 22 years is not unreasonable in this case.**

The regulation states that the ALJ must determine whether the length of exclusion is “unreasonable.”  42 C.F.R. § 1001.2007(a)(1).  The Board, however, has made clear 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 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; *Craig Richard Wilder*, DAB No. 2416 at 8; *Joann Fletcher Cash*, DAB No. 1725 at

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17 n.6.  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 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 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 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 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 unreasonableness of the period of exclusion.

Based on my de novo review, I conclude that a basis for the exclusion exists and that the undisputed evidence established the three aggravating factors the IG considered in determining to impose the 22-year exclusion.  Petitioner has not presented evidence that shows a genuine dispute that the IG failed to consider a mitigating factor authorized by 42 C.F.R. § 1001.102(c) or considered an aggravating factor that did not exist.  I conclude that a period of exclusion of 22 years is in a reasonable range and not unreasonable considering the existence of three aggravating factors and no mitigating factors.  Accordingly, no basis exists for me to reassess the period of exclusion.

III.  Conclusion

For the foregoing reasons, Petitioner is excluded from participation in Medicare, Medicaid, and all other federal health care programs for a minimum period of 22 years, effective September 20, 2021.

Endnotes

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 minimum period of exclusion.

2 Citations are to the 2020 revision of the Code of Federal Regulations (C.F.R.), which was in effect at the time of the IG action, unless otherwise stated.

3 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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