Aillyn Aulov, DAB CR6253 (2023)

DECISION

I affirm the determination of the Inspector General (IG) of the United States Department of Health and Human Services to exclude Petitioner from participation in all federal health care programs for 23 years. 

I.   Background

In an August 31, 2022 notice, the IG excluded Petitioner from participation in all federal health care programs under section 1128(a)(1) of the Social Security Act (42 U.S.C. § 1320a-7(a)(1)) for a period of 23 years due to her conviction of a criminal offense related to the delivery of an item or service under Medicare or a state health care program in the U.S. District Court for the Southern District of Florida (District Court).  The notice stated that the exclusion would be effective 20 days from the date of the notice.  IG Ex. 1. 

The notice stated that, based on the following aggravating circumstances, the exclusion would extend beyond the minimum five years required under the statute:

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1. The acts resulting in the conviction, or similar acts, caused, or were intended to cause, a financial loss to a government agency or program or to one or more other entities of $50,000 or more.  (The entire amount of financial loss to such government agencies or programs or to other entities, including any amounts resulting from similar acts not adjudicated, will be considered regardless of whether full or partial restitution has been made.)  The court ordered [Petitioner] to pay approximately $1,163,100 in restitution.
2. The acts that resulted in the conviction, or similar acts, were committed over a period of one year or more.  The acts occurred from about June 2013 to about August 2019.
3. The sentence imposed by the court included incarceration.  The court sentenced [Petitioner] to 24 months of incarceration.

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

On October 20, 2022, Petitioner, acting pro se, filed a request for an administrative law judge hearing to dispute the 23-year length of exclusion.  Petitioner included two documents with the hearing request.¹  Petitioner asserted that mitigating factors exist to reduce the length of exclusion.  In particular, Petitioner alleged cooperation with government officials for two years, which led to additional individuals being investigated and sentenced to prison.  Further, Petitioner alleged that the District Court determined that Petitioner had a substance abuse problem and recommended that Petitioner enroll in a drug treatment program.  Hearing Req. at 1-2.

On October 21, 2022, the Civil Remedies Division (CRD) acknowledged Petitioner’s hearing request, informed the parties that I would hold a prehearing conference on November 10, 2022, and issued my Standing Prehearing Order (SPO).

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On November 10, 2022, I held a telephonic prehearing conference, the substance of which is summarized in my November 10, 2022 Order Following Prehearing Conference and Setting Schedule for Prehearing Submissions (Nov. 10, 2022 Order).  At the prehearing conference, Petitioner conceded that she was convicted of a crime for which the IG was authorized to exclude Petitioner from participation in all federal health care programs for a minimum of five years.  Petitioner also conceded the existence of the three aggravating factors as alleged by the IG under 42 C.F.R. § 1001.102(b)(1)-(2), (5).  Petitioner further alleged two mitigating factors under 42 C.F.R. § 1001.102(c)(2), (3):  1) cooperation with Federal or State officials over the course of more than two years resulted in others being investigated for health care fraud, which resulted in her receiving a 5K1.1 Substantial Assistance to Authorities during sentencing; and 2) the record in the criminal proceedings, including sentencing documents, demonstrates that the court determined that Petitioner had a substance abuse condition before or during the commission of the offense that reduced her culpability.  Petitioner also said that a 23-year period of exclusion is punitive, rather than remedial.  At the conference, I stated, consistent with SPO ¶ 6, that Petitioner bore the burden of proving the existence of mitigating factors under 42 C.F.R. § 1001.102(c).  I also advised the parties that the only issue to be decided in this case is whether the 23-year length of exclusion is unreasonable.  Nov. 10, 2022 Order at 2.

On November 30, 2022, the IG filed a prehearing brief (IG Br.) and five proposed exhibits (IG Exs. 1-5).  Petitioner requested additional time to file a prehearing exchange, and, on January 25, 2023, I granted a 60-day extension.  On February 23, 2023, Petitioner filed a letter brief (P. Br.) and one exhibit (P. Ex. 1).²  On March 7, 2023, the IG filed a reply brief (IG Reply), which included an objection to Petitioner’s proposed exhibit.

II.    Admission of Evidence

I admit IG Exhibits 1 through 5 into the record, without objection.  See 42 C.F.R. § 1005.8(c).

I overrule the IG’s objection to Petitioner Exhibit 1 and admit it into the record.  Petitioner Exhibit 1 is a series of email messages between Petitioner’s former criminal defense counsel and one of the United States Department of Justice (DOJ) prosecutors in Petitioner’s criminal case.  The IG objects that the emails are not authenticated and that the statements in the emails were not made under oath or as a declaration.  CMS Reply at 2 n.1. 

I overrule the IG’s objection because I am not bound by the Federal Rules of Evidence, and I have no reason to believe that the emails are unreliable.  42 C.F.R. § 1005.17(b); cf. Anthony Bruce Camillo, DAB CR5877 at 5 (2021) (IG submitted an email from a DOJ

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prosecutor as an exhibit).  Further, the emails are relevant to this case.  42 C.F.R. § 1005.17(c).

III.  Decision on the Written Record

I informed the parties that they needed to submit the written direct testimony for any witnesses that they wanted to testify in this case or, if they were unable to obtain the written direct testimony, to request a subpoena to be issued to the witness or witnesses.  SPO ¶ 10.  I also informed the parties that I would not conduct a hearing unless written direct testimony was submitted by a party and the opposing party requested to cross-examine one or more witnesses.  SPO ¶ 11.

In the present case, the IG gave notice that it did not have any witnesses to present in this case and did not think an in-person hearing was necessary.  IG Br. at 10.  Petitioner neither provided any written direct testimony nor a witness list.  Therefore, there is no need for me to hold an in-person hearing and I issue this decision based on the written record.  CRD Procedures §§ 16(a)-(b), 19(b), (d).  

IV.   Issue

Whether the length of the exclusion imposed by the IG is unreasonable.  Nov. 10, 2022 Order at 2; 42 C.F.R. § 1001.2007(a)(1)(ii).

V.    Jurisdiction

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

VI.   Findings of Fact

1. Petitioner and another individual co-owned two businesses, Bravo Drugs Inc., and Bravo Drugs Two, Inc., both located in southern Florida.  IG Ex. 2 at 3; IG Ex. 3 at 1. 
2. A DOJ prosecutor filed an Information in the District Court charging Petitioner with conspiracy to commit health care fraud (18 U.S.C. § 1349).  IG Ex. 2.  The Information alleged the following: 
   1. Petitioner knowingly and willfully engaged in a conspiracy, from June 2013 through August 2019, to defraud the Medicare program and Medicare Part D drug plan sponsors.  IG Ex. 2 at 3-4.
   2. Petitioner and co-conspirators signed retail network agreements with Medicare Part D plan sponsors.  Petitioner and co-conspirators would

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purchase prescription medications from wholesale pharmaceutical distributors, submit claims to Medicare and Medicare Part D plan sponsors falsely representing that the prescription medications had been provided to Medicare beneficiaries, and return the prescription medications to the wholesale distributors.  IG Ex. 2 at 4-5.

3. “[Petitioner] and her co-conspirators caused the submission of approximately $1,163,178 in claims for prescription drugs that were medically unnecessary, were not provided to beneficiaries, and that were returned to wholesale distributors.”  IG Ex. 2 at 5. 
4. “[Petitioner] and her co-conspirators used the proceeds from the false and fraudulent claims for their own use and the use of others, and to further the fraud.”  IG Ex. 2 at 5.

3. Petitioner entered into a Plea Agreement with DOJ prosecutors in which Petitioner agreed to plead guilty to the charge in the Information.  IG Ex. 4.  The terms of the Plea Agreement included the following:
   1. Petitioner acknowledged that the statutory maximum term of imprisonment that the District Court could impose was ten years.  IG Ex. 4 at 3. 
   2. Petitioner understood and acknowledged that Petitioner would be excluded from serving as a provider in all federal health care programs.  IG Ex. 4 at 3.
   3. Petitioner agreed to cooperate with law enforcement officials, DOJ attorneys, and federal regulatory officials overseeing the Medicare program “by providing full, complete, and truthful information regarding her knowledge, conduct, and actions while involved in health care and by providing active cooperation in ongoing investigations if requested to do so.”  IG Ex. 4 at 4. 
   4. DOJ reserved the right to evaluate the nature and extent of Petitioner’s cooperation at the time of sentencing.  “If in the sole and unreviewable judgment of [DOJ] the [Petitioner’s] cooperation is of such quality and significance to the investigation or prosecution of other criminal matters as to warrant the Court’s downward departure from the sentence advised by the Sentencing Guidelines, [DOJ] may at or before sentencing make a motion pursuant to . . . Section 5K1.1 of the Sentencing Guidelines . . . reflecting that the [Petitioner] has provided substantial assistance and recommending a sentence reduction.”  IG Ex. 4 at 6.

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5. Petitioner acknowledged that “the Court must order the [Petitioner] to pay restitution for the full loss caused by her criminal conduct . . . and the [Petitioner] agree[s] that the [Petitioner] shall pay restitution to the United States in the amount of $1,163,178, which shall be joint and several with her co-conspirators.”  IG Ex. 4 at 13-14.

4. Petitioner also signed an Agreed Factual Basis for Guilty Plea, which stated the following as the basic factual basis for Petitioner’s violation of 18 U.S.C. § 1349 (IG Ex. 3):

Beginning in or around at least June 2013 through in or around August 2019, the [Petitioner] did knowingly combine, conspire, and agree with other co-conspirators, incuding Co-Conspirator 1 . . . to commit health care fraud. . . .

The [Petitioner] and Co-Conspirator 1 owned and operated Bravo Drugs, Inc. and Bravo Drugs II, Inc. (collectively, “Bravo Drugs”), Florida corporations that did business in the Southern District of Florida.  Through Bravo Drugs, the [Petitioner] and Co-Conspirator 1 billed Medicare drug plan sponsors, for, among other things, prescription drugs that were medically unnecessary, were not provided to beneficiaries, and/or were never purchased by Bravo Drugs.  Additionally, the [Petitioner] and Co-Conspirator 1 intentionally concealed Co-Conspirator 1’s role at Bravo. 

Through the conspiracy, the [Petitioner] and Co-Conspirator 1 caused Bravo Drugs to submit approximately $1,163,178 in claims for prescription drugs that were medically unnecessary, were not provided to beneficiaries, and/or were never purchased by Bravo Drugs.

5. Regarding the substantive criminal violation, Petitioner agreed in the Plea Agreement that the following was true and could be proven by DOJ at a trial (IG Ex. 4 at 7): 
   1. That the [Petitioner] knowingly and willfully participated in a conspiracy to defraud a health care benefit program affecting commerce and to obtain, by means of materially false and fraudulent pretenses, representations, and promises, money and property owned by, and under the custody and control of, said healthcare benefit program, in connection with the

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delivery of and payment for healthcare benefits, items, and services;

2. That the [Petitioner’s] participation in this conduct resulted in an actual or intended loss to the Medicare program of at least $1,163,178; and
3. That the offense was a federal health care offense that resulted in a loss to the Medicare program exceeding one million dollars.

6. On January 27, 2022, the District Court issued a Judgment in a Criminal Case, which indicated the following: 
   1. Petitioner pleaded guilty to the charge in the Information.  IG Ex. 5 at 1. 
   2. The District Court sentenced Petitioner to imprisonment for 24 months.  IG Ex. 5 at 2. 
   3. The District Court sentenced Petitioner to supervised release for three years.  IG Ex. 5 at 3.
   4. The District Court ordered Petitioner to pay restitution in the amount of $1,163,178.32.  IG Ex. 5 at 6.

VII.  Conclusions of Law and Analysis

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

If an individual has been convicted of a crime that requires mandatory exclusion, then the Secretary must exclude the individual for at least five years.  42 U.S.C.

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§ 1320a‑7(c)(3)(B).  However, the Secretary established, by regulation, a list of aggravating and mitigating factors that are to be considered in each case to determine whether the length of a mandatory exclusion should exceed five years.  See 42 C.F.R. § 1001.102(b)-(c). 

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

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

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

Petitioner does not dispute that the IG must exclude Petitioner for a minimum of five years under 42 U.S.C. § 1320a-7(a)(1).  Nov. 10, 2022 Order at 2; see also Hearing Req. at 2 (seeking review only of the length of exclusion); IG Ex. 4 at 3-4 (Petitioner acknowledging in Plea Agreement that exclusion will be imposed).  A review of the record indicates that there is no doubt that Petitioner is subject to a mandatory five-year exclusion. 

2. The IG appropriately considered as an aggravating factor that Petitioner’s criminal conspiracy resulted in a $1,163,178 loss to the Medicare program.  This amount is a significant factor that weighs heavily in favor of an extremely lengthy exclusion. 

In the August 31, 2022 exclusion notice, the IG stated that the acts resulting in conviction, or similar acts, caused or were intended to cause, a financial loss to a government agency or program of $50,000 or more.  The IG specified that “[t]he court ordered [Petitioner] to pay approximately $1,163,100 in restitution.”  IG Ex. 1 at 1.  

As stated in Findings of Fact 2c, 3e, 4, 5b and c, and 6d above, Petitioner billed the Medicare program/Medicare Part D plan sponsors for a total of $1,163,178, received that money, admitted that the $1,163,178 represented a loss to the Medicare program, and agreed to repay/was ordered to pay restitution in the amount of $1,163,178.  Petitioner did not dispute the existence of this aggravating factor.  Nov. 10, 2022 Order at 2.

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Petitioner’s criminal conspiracy is responsible for a loss to the Medicare program that is 23 times more than the minimum amount ($50,000) required for that loss to be considered an aggravating factor.  Therefore, this aggravating factor is sufficient to support an extremely lengthy exclusion. 

3. The IG appropriately considered as an aggravating factor that Petitioner’s criminal conspiracy spanned more than six years.  This length of time is a significant factor that weighs heavily in favor of an extremely lengthy exclusion.

In the August 31, 2022 exclusion notice, the IG stated that Petitioner’s acts that resulted in the conviction, or similar acts, occurred from about June 2013 to about August 2019.  IG Ex. 1 at 1. 

As stated in Findings of Fact 2a and 4 above, the Petitioner’s conspiracy lasted from at least June 2013 to August 2019, or for over six years.  Petitioner did not dispute the existence of this aggravating factor.  Nov. 10, 2022 Order at 2. 

Petitioner’s criminal conduct and conspiracy lasted six times longer than the minimum amount of time necessary for it to be considered an aggravating factor.  Such a lengthy period of time in which Petitioner committed fraud serves as a significant basis to impose a lengthy exclusion. 

4. The IG appropriately considered as an aggravating factor that Petitioner was sentenced to incarceration for two years.  This aggravating factor provides strong support for a lengthy exclusion.

In the February 28, 2022 exclusion notice, the IG stated that the District Court’s sentence included 24 months of incarceration.  IG Ex. 1 at 1. 

As stated in Finding of Fact 6b above, Petitioner was sentenced to incarceration for 24 months. Petitioner did not dispute the existence of this aggravating factor.  Nov. 10, 2022 Order at 2. 

A prison sentence of as little as nine months is considered to be relatively substantial for exclusion purposes.  Jason Hollady, M.D., DAB No. 1855 at 12 (2002).  Petitioner’s 24-month sentence is two and one-half times that amount and demonstrates the seriousness of Petitioner’s criminal offense.  This length of imprisonment strongly supports a lengthy exclusion. 

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5. Petitioner failed to prove that there are any mitigating factors present in this case.

If there are aggravating factors that justify the length of exclusion to exceed five years, then the length of exclusion can be reduced if certain mitigating factors are present in a case.  42 C.F.R. § 1001.102(c).  Petitioner alleged in the hearing request that the following mitigating factors exist in this case: 

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

42 C.F.R. § 1001.102(c)(2), (3). 

Regarding the first alleged mitigating factor, i.e., that the District Court determined that Petitioner had a mental, emotional, or physical condition that reduced Petitioner’s culpability, Petitioner alleged the following:  “[T]he court determined that I had a substance abuse problem and recommended I enroll in a drug treatment [program] while incarcerated and/or out in the community.”  Hearing Req. at 1.  Petitioner only submitted the Judgment in a Criminal Case with the hearing request as support for the existence of this mitigating factor, which was admitted into the record as IG Exhibit 5. 

The Judgment in a Criminal Case only states that a Special Condition for Supervision is that Petitioner will participate in an approved treatment program for drug and/or alcohol abuse.  IG Ex. 5 at 5.  This does not prove that the District Court found that Petitioner’s substance abuse problem reduced Petitioner’s criminal culpability.  This is consistent with the fact that Petitioner, during sentencing, did not argue that her substance abuse problem was a basis for a reduced sentence.  Hearing Req. at 5-6 (raising various personal issues to the District Court’s attention in a Sentencing Memorandum and Motion for Downward Variance but not mentioning a substance abuse problem).

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For 42 C.F.R. § 1001.102(c)(2), the relevant inquiry is whether Petitioner has proven that the District Court determined that Petitioner’s substance abuse problem reduced Petitioner’s criminal culpability.  Patel v. Shalala, 17 F. Supp. 2d 662, 667 (W.D. Ky. 1998) (“Plaintiff has not provided any citation to the record in the criminal proceeding where the court made any finding that plaintiff was less culpable for his crimes due to a dependence on alcohol or drugs.”).  Reviewing the record, I can neither find an express statement from the District Court nor infer from any documents in the record that the District Court found Petitioner less culpable based on a substance abuse problem.  See Farzana Begum, M.D., DAB No. 2726 at 9-10 (2016).  Therefore, I conclude that Petitioner failed to prove that the mitigating factor at 42 C.F.R. § 1001.102(c)(2) applies in this case. 

Concerning the second alleged mitigating factor, i.e., cooperation with law enforcement authorities that results in additional cases being investigated or other individuals being convicted, Petitioner has more evidence.  However, Petitioner’s evidence is insufficient to prove the existence of this mitigating factor. 

Petitioner alleges that she cooperated with DOJ for over two years before her conviction, which led to additional individual/cases being investigated based on Petitioner’s knowledge of health care fraud in South Florida.  Petitioner alleges that some of the individuals had been sentenced to prison.  Further, Petitioner claims that she remained available after sentencing to cooperate further.  Hearing Req. at 1-2; P. Br. 

In support of this mitigating factor, Petitioner submitted an email from one of the DOJ prosecutors on her case, who stated: 

[Petitioner] cooperated with the government.  She proffered on numerous occasions, conducted a recorded telephone call(s) on behalf of agents, and provided documents.  Unfortunately, at this stage, it has not resulted in any additional charges, but no fault of [Petitioner.]

P. Ex. 1 at 3.  The DOJ prosecutor sent another email that stated the following: 

I have confirmed with [a United States Attorney’s office in New York] that my email is accurate.  But the government will not be producing any of the underlying reports.

P Ex. 1 at 2.  

This evidence certainly proves that Petitioner cooperated with law enforcement, as she was required to do under her Plea Agreement.  IG Ex. 4 at 4-5.  However, the emails do not prove that there were investigations initiated or convictions obtained due to

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Petitioner’s cooperation, as required for a mitigating factor to be present under 42 C.F.R. § 1001.102(c)(3).  The emails are too vague to draw such conclusions.

In addition, Petitioner’s Sentencing Memorandum and Motion for Downward Variance stated that, although Petitioner cooperated with DOJ, DOJ did not file a motion to reduce Petitioner’s sentence under § 5K1.1 of the Sentencing Guidelines.  Hearing Req. at 4.  This means that DOJ did not consider Petitioner’s cooperation to be “substantial assistance.”  See IG Ex. 4 at 6.

As stated in a prior case decision, the failure by DOJ to recognize Petitioner’s assistance as substantial is extremely important for my evaluation of this mitigating factor.

[T]he regulation requires that the cooperation result in one of two specified forms of validation:  additional cases being investigated or reports being issued . . . . [It] requires an individual to demonstrate that a law enforcement official actually exercised his or her discretion and began an investigation or issued a report as a result of the individual’s cooperation . . . . The rule is not designed to reward individuals who may have provided evasive, speculative, unfounded or even spurious information that proved to be so useless that the government official was unable even to open a new case for investigation.  Rather, the regulation is designed to authorize mitigation for significant or valuable cooperation that yielded positive results for the state or federal government in the form of a new case actually being opened for investigation or a report actually being issued.

Stacey R. Gale, DAB No. 1941 at 10-11 (2004).  Without DOJ acknowledging that Petitioner’s cooperation was significant, I cannot conclude that Petitioner’s cooperation can serve as a mitigating factor.  See 63 Fed. Reg. 46,676, 46,681 (Sept. 2, 1998); 57 Fed. Reg. 3298, 3315 (Jan. 29, 1992).  In rejecting Petitioner’s argument that her cooperation should mitigate the length of exclusion in this case, I note that Petitioner’s Sentencing Memorandum and Motion for Downward Variance describes Petitioner cooperation in some detail but fails to explicitly assert that Petitioner’s cooperation led to the conviction of another individual or that additional investigations had been initiated.  Hearing Req. at 2-3.

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6. The 23-year length of Petitioner’s exclusion is not unreasonable based on the aggravating factors and mitigating factors in this case.

When considering the length of exclusion, “[t]he evaluation does not rest on the specific number of aggravating or mitigating factors or any rigid formula for weighing those factors, but rather on a case-specific determination of the weight to be accorded each factor based on a qualitative assessment of the circumstances surrounding the factors in that case.”  Begum, DAB No. 2726 at 2.  Further, the general purpose of an exclusion under 42 U.S.C. § 1320a-7 is “to protect federal health care programs and the programs’ beneficiaries and recipients from untrustworthy providers.”  Susan Malady, R.N., DAB No. 1816 at 9 (2002).  Ultimately, I must decide whether the 23-year exclusion is unreasonable (i.e., is it within a reasonable range for the length of exclusion based on the relevant factors).  42 C.F.R. § 1001.2007(a)(1)(ii); 57 Fed. Reg. 3298, 3321 (Jan. 29, 1992).

Above, I performed the qualitative assessment of the aggravating and mitigating factors.  The loss to the Medicare program is very high, the length of time Petitioner engaged in criminal conduct is long, and the length of Petitioner’s sentence of incarceration is long.  These factors strongly support a lengthy exclusion.

The IG has valid concerns that Petitioner is insufficiently trustworthy to participate in federal health care programs as a provider or supplier of health care items or services.  Petitioner established companies and entered into retail network agreements with Medicare Part D plan sponsors in an effort to defraud the Medicare program.  Petitioner filed claims for payment knowing that her companies did not provide any drugs to Medicare beneficiaries as alleged in the claims.  Petitioner filed such claims many times and over six years.  This manifests a fundamental lack of moral restraint and the ability to engage in deception as a normal business practice.

The Medicare program is an extraordinarily important program that ensures health care for millions of aged and disabled persons in this country.  Medicare Part D provides coverage for prescription medications.  It is against this program, which is essential for so many Americans, that Petitioner engaged in rank fraud.  Based on the facts in this case, it is impossible for me to find that Petitioner is trustworthy enough to participate in federal health care programs.  Therefore, I conclude that the IG’s 23-year length of exclusion is not unreasonable.

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VIII.  Conclusion

I affirm the IG’s determination to exclude Petitioner for 23 years from participating in all federal health care programs.

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Endnotes

¹  Petitioner uploaded the hearing request and two additional documents to the Electronic Filing System (E-File) as a single PDF document.  E-File Document No. 1.  Petitioner did not consecutively paginate the hearing request and the attached documents.  Therefore, in this decision, I cite to the hearing request and documents using the PDF counter number as the page number (e.g., Hearing Req. at 4).  As mentioned later in this decision, Petitioner uploaded a single unmarked and unpaginated exhibit as part of Petitioner’s prehearing exchange.  E-File Document No. 11.  I refer to this document as Petitioner Exhibit 1 and, when citing to that document, I use the PDF counter number as well (e.g., P. Ex. 1 at 2).

²  Petitioner’s letter brief is E-File Document No. 11a.