Keesha Dinkins, DAB CR6420 (2024)

DECISION

The Inspector General of the United States Department of Health and Human Services (IG) excluded Petitioner, Keesha Dinkins, from participation in Medicare, Medicaid, and all other federal health care programs for 23 years pursuant to section 1128(a)(1) of the Social Security Act (Act) (42 U.S.C. § 1320a-7(a)(1)).  Petitioner’s exclusion for the minimum period of five years is required by section 1128(c)(3)(B) of the Act (42 U.S.C. § 1320a-7(c)(3)(B)).  Petitioner challenges the length of the exclusion.  For the reasons stated below, I conclude that the 23-year exclusion period is not unreasonable.  I affirm the IG’s exclusion determination.

I.     Procedural History

The IG issued a notice to Petitioner dated March 31, 2023, informing her that she was excluded from participation in Medicare, Medicaid, and all federal health care programs for 23 years.  IG Exhibit (Ex.) 1 at 1.  The IG cited section 1128(a)(1) of the Act as the basis for Petitioner’s exclusion.  The IG stated the exclusion was based on Petitioner’s conviction in the United States District Court, Western District of Louisiana, Shreveport Division (District Court), of a criminal offense related to the delivery of an item or

Page 2

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.  The IG extended the mandatory five-year exclusion to 23 years because:  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 (42 C.F.R. § 1001.102(b)(1)); 2) the acts that resulted in the conviction, or similar acts, were committed over a period of one year or more (42 C.F.R. § 1001.102(b)(2)); and 3) the sentence the court imposed included incarceration (42 C.F.R. § 1001.102(b)(5)).  IG Ex. 1 at 1.

Petitioner timely requested an administrative law judge (ALJ) hearing, and I was designated to hear and decide this case.  The Civil Remedies Division issued an Acknowledgment Notice and my Standing Prehearing Order (Prehearing Order).

I conducted a prehearing telephone conference on June 28, 2023, the substance of which I memorialized in my June 29, 2023 Order, including a schedule for submission of arguments and evidence by the parties.  The IG submitted a brief (IG Br.) and six exhibits (IG Exs. 1-6), while Petitioner submitted a brief (P. Br.) and one exhibit (P. Ex. 1).  The IG also submitted a reply brief (IG Reply).

II.    Exhibits and Decision on the Record

Petitioner did not object to the IG’s proposed exhibits.  The IG objected to Petitioner’s Exhibit 1 as irrelevant, because the exhibit, a brief Petitioner filed with the United States Court of Appeals for the Fifth Circuit, allegedly constitutes a collateral attack of Petitioner’s conviction.  IG Reply at 3.  I overrule the IG’s objection; the exhibit is relevant because Petitioner challenges the restitution amount from the District Court directly through the appeal process – not collaterally – and the restitution amount is relevant to the reasonableness of the duration of the exclusion.  Therefore, I admit IG Exhibits 1 through 6 and Petitioner’s Exhibit 1 into evidence.

There is some ambiguity as to whether Petitioner requests an in-person hearing.  Petitioner indicates an in-person hearing is necessary to decide the case, but then states, “This matter is ripe for adjudication on the written record.”  P. Br. at 4.  Petitioner then indicates she would be the sole witness and had testimony she wished to offer.  P. Br. at 4.  However, in response to the question of whether the proposed testimony would duplicate something that is already stated in an exhibit, Petitioner states, “No other testimony will be offered by Petitioner.”  P. Br. at 4.  As required by ¶ 6 of my Prehearing Order, Petitioner did not provide a summary of her anticipated testimony.  Additionally, Petitioner did not propose any other witnesses.

The IG asserts a hearing is unnecessary, because Petitioner did not specify what testimony she would offer and did not submit prior written statements of witnesses for

Page 3

whom direct testimony will be solicited and prior sworn testimony of experts who have been subject to adverse examination, as required by 42 C.F.R. §§ 1005.8, 1005.16.  IG Reply at 3.

Because Petitioner has not provided a summary of her anticipated testimony, has not proposed any witnesses other than herself, and indicates she has no additional testimony other than the information contained in P. Ex. 1, an in-person hearing would serve no purpose.  Therefore, this matter will be decided on the written record.  See Civ. Remedies Div. P. § 19(d).

III.   Issues

The Secretary of Health and Human Services (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, if so, whether the length of the exclusion the IG imposed is unreasonable.  See 42 C.F.R. § 1001.2007(a)(1).  Here, Petitioner concedes the IG has a basis to exclude her from participation in federal health care programs for five years under section 1128(a)(1) of the Act.  P. Br. at 1.  Therefore, the only issue in this case is whether the 23-year period of exclusion imposed by the IG is reasonable.

IV.   Applicable Law

Section 1128(f) of the Act (42 U.S.C. § 1320a-7(f)) establishes Petitioner’s right to an ALJ hearing and judicial review of the final action of the Secretary.  The right to an ALJ hearing is set forth in 42 C.F.R. §§ 1001.2007(a) and 1005.2, while the rights of both the sanctioned party and the IG to participate in a hearing are specified at 42 C.F.R. § 1005.3.

Pursuant to section 1128(a) 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.  Act § 1128(a)(1).  A state health care program includes a state Medicaid program.  Act § 1128(h)(1) (42 U.S.C. § 1320a-7(h)(1)).  Pursuant to section 1128(i) of the Act (42 U.S.C. § 1320a-7(i)), an individual is convicted of a criminal offense when, among other things, a plea of guilty or no contest is accepted by a court.  Act § 1128(i)(3).  The Secretary has promulgated regulations implementing these provisions of the Act.  42 C.F.R. § 1001.101(a), (c).  There may be no collateral attack of the conviction that is the basis for the exclusion.  42 C.F.R. § 1001.2007(d).

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

Page 4

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 less 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 ¶ 5.

V.     Findings of Fact, Conclusions of Law, and Analysis

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

1. I have jurisdiction to hear this case.

Petitioner timely requested a hearing.  I therefore have jurisdiction to hear and decide this case.  See 42 C.F.R. §§ 1001.2007(a)(1)-(2), 1005.2(a); see also 42 U.S.C. § 1320a-7(f)(1).

2. Petitioner was convicted of a criminal offense related to the delivery of a health care item or service under the Medicaid program requiring exclusion under 42 U.S.C. § 1320a-7(a)(1).

The IG must exclude an individual from participation in federal health care programs if the individual was convicted of a criminal offense related to the delivery of a health care item or service under Medicare or a state health care program.  42 U.S.C. § 1320a-7(a)(1).  Here, Petitioner concedes she was convicted of an offense requiring exclusion.  P. Br. at 1.  Nevertheless, because the nature and circumstances of her conviction are relevant to the outcome here, I note them for the record.

A Bill of Information filed in the District Court on October 25, 2021, charged Petitioner with one count of Misprision of a Felony in violation of 18 U.S.C. § 4.  IG Ex. 3.  The Bill of Information alleged Petitioner had “knowledge of the actual commission of a felony cognizable by a court of the United States, to wit, Healthcare Fraud pursuant to Title 18, United States Code, Section 1347,” “conceal[ed] the same by doing the affirmative act of creating false and fraudulent client files,” and “did not as soon as possible make known the same to some judge or other person in civil or military authority under the United States . . . .”  IG Ex. 3.

On October 25, 2021, Petitioner pleaded guilty to one count of Misprision of a Felony in violation of 18 U.S.C. § 4.  IG Exs. 2, 3.  Petitioner agreed to the factual basis in the plea agreement.  IG Ex. 2.  According to the plea agreement, Petitioner was a manager and

Page 5

supervisor at Positive Change Counseling Agency, LLC (Positive Change), owned and operated by another individual, M.J.  IG Ex. 2 at 12.  Petitioner knew that between 2014 and January 2018, M.J. submitted fraudulent claims to Medicaid on behalf of Positive Change for mental health rehabilitation and non-emergency transportation services that Petitioner and M.J. knew were not performed or rendered.  IG Ex. 2 at 12-13.  Petitioner and M.J. knowingly and willfully instructed and supervised employees to create false client files to conceal from Medicaid and insurance company auditors and inspectors that Positive Change had not performed the services in the claims Positive Change had submitted to Medicaid.  IG Ex. 2 at 13.

The District Court accepted Petitioner’s plea on October 25, 2021.  IG Ex. 4.  On April 19, 2022, the District Court sentenced Petitioner to 24 months of incarceration and one year of supervised release.  IG Ex. 5 at 2, 3.  The District Court also ordered Petitioner to pay $3,500,000 in restitution and a $100 assessment.  IG Ex. 5 at 5.

Petitioner does not dispute she was convicted of a criminal offense within the meaning of the statute.  P. Br. at 1.  Petitioner pleaded guilty, and the District Court accepted the plea and adjudicated her guilty of one count of misprision of a felony.  IG Exs. 4, 5.  Accordingly, Petitioner was convicted of a criminal offense as defined in subsections 1128(i)(2) and (3) of the Act (an individual is “convicted” where there has been a finding of guilt against the individual, or where a court has accepted an individual’s guilty plea).

Petitioner also does not dispute that her conviction related to the delivery of an item or service under Medicaid.  P. Br. at 1.  To prove that Petitioner’s conviction was related to the delivery of a health care item or service, the IG must show that there is a nexus between the offense and the delivery of a health care item or service.  The Departmental Appeals Board (Board) has repeatedly held that the phrase “related to” within the context of section 1128(a)(1) requires only that a common‑sense nexus exist between the offense and the delivery of a health care item or service.  Summit S. Shah, M.D., DAB No. 2836 at 6 (2017) (citing cases).

Petitioner knowingly and willfully instructed employees to create false client files to conceal that Positive Change had not performed the services in the claims Positive Change submitted to Medicaid for reimbursement.  IG Ex. 2 at 12-13.  Petitioner knew that Positive Change submitted fraudulent claims to Medicaid and she facilitated the concealment of filing of false claims to Medicaid, which is “related to the delivery of an item or service under [Medicaid].”  Yolanda Hamilton, M.D., DAB No. 3061 at 11 (2022) (citing cases).  Therefore, Petitioner’s conviction is related to the delivery of a health care item or service. 

The facts pertaining to Petitioner’s conviction establish Petitioner was convicted of a criminal offense related to the delivery of a health care item or service under the Medicaid program requiring exclusion under 42 U.S.C. § 1320a-7(a)(1).  See Travers v.

Page 6

Shalala, 20 F.3d 993, 998 (9th Cir. 1994) (affirming conviction for filing fraudulent claims with the Medicaid program is “a program‑related offense” and “such financial misconduct is exactly what Congress sought to discourage” through imposing exclusions).  Petitioner is therefore subject to a five-year exclusion pursuant to section 1128(a)(1) of the Act.

3. Petitioner must be excluded for a minimum of five years.

Because I have concluded that a basis exists to exclude Petitioner pursuant to 42 U.S.C. § 1320a-7(a)(1), she must be excluded for a minimum of five years.  42 U.S.C. § 1320a-7(c)(3)(B).

4. The IG has established three aggravating factors which together permit the IG to lengthen the exclusion beyond the five-year statutory minimum.

In relevant part, the following factors may be considered to be aggravating and a basis for lengthening the period of a mandatory exclusion under section 1128(a)(1): 

(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[;]

* * * *

(2)  The acts that resulted in the conviction, or similar acts, were committed over a period of one year or more;

* * * *

(5)  The sentence imposed by the court included incarceration[.] 

42 C.F.R. § 1001.102(b)(1), (2), (5).

The IG bears the burden of establishing aggravating factors.  42 C.F.R. § 1005.15(c).  The IG has met its burden with respect to the three aggravating factors which together permit the IG to lengthen the exclusion beyond the five-year statutory minimum, as discussed below.

Page 7

1. The IG established that the acts resulting in Petitioner’s conviction caused a financial loss to a government program of $50,000 or more under 42 C.F.R. § 1001.102(b)(1). 

The IG may extend the length of an exclusion if 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.  42 C.F.R. § 1001.102(b)(1).  Pursuant to Petitioner’s plea agreement, the District Court ordered Petitioner to pay $3,500,000 in restitution.  IG Ex. 5 at 5.

Petitioner objects to the attribution of the $3,500,000 restitution amount as a proxy for the amount of financial loss to the government.  Petitioner argues both that (1) the restitution amount determined by the District Court is inappropriate and Petitioner has thus appealed the restitution amount to the U.S. Court of Appeals for the Fifth Circuit, and (2) regardless, the entirety of the restitution amount should not be attributed to Petitioner given her limited role in the underlying conviction.  P. Br. at 2.  Petitioner asserts that the plea agreement states the restitution amount was conditional and subject to the completion of the Government’s investigation and the District Court’s analysis of that investigation.  P. Br. at 2-3 (citing IG Ex. 2 at 3).  Petitioner notes she has appealed the restitution award (P. Ex. 1), because the District Court failed to conduct or provide any analysis or basis for the restitution amount and the Government failed to satisfy its burden of proof as to the restitution amount.  P. Br. at 3.

Petitioner’s arguments disputing the restitution amount directly contravenes the plain language of her plea agreement.  By pleading guilty, Petitioner agreed to the factual basis underlying her conviction, and she specifically recommended in her plea agreement that the restitution amount in the case be $3,500,000.  IG Ex. 2 at 4, 12-14.  Petitioner also “underst[ood] and agree[d]” that “the Court shall order restitution in this case” and that she “will be held liable for all restitution jointly and severally” with her codefendant.  IG Ex. 2 at 2-3.  As stipulated in the plea agreement, the restitution amount was subject to the District Court’s discretion and even acknowledged that the District Court “may not be limited to the amounts or victims referred to in the specific charge(s) to which [Petitioner] has pled guilty . . . .”  IG Ex. 2 at 3, 4.  The District Court ultimately determined the final amount of the restitution to be $3,500,000 – the exact amount Petitioner recommended in her plea agreement.  IG Ex. 5 at 5.  Because the District Court finally adjudicated the restitution amount, Petitioner may not now challenge the restitution amount unless the restitution amount is modified by the District Court or on appeal at the Fifth Circuit.  Hamilton, DAB No. 3061 at 13-14.  Additionally, even if the District Court reduces the restitution amount on appeal, that does not prevent the IG from using the current restitution amount as an aggravating factor if and until the restitution amount is reduced.  See Hamilton, DAB No. 3061 at 13.

Page 8

The amount ordered as restitution has long been considered a reasonable measure of program losses.  Summit S. Shah, M.D., DAB No. 2836 at 8; Laura Leyva, DAB No. 2704 at 9 (2016), aff’d, Leyva v. Price, No. 8:16-CV-1986, 2017 WL 2880125 (M.D. Fla. Apr. 24, 2017); Juan de Leon, Jr., DAB No. 2533 at 5 (2013); Craig Richard Wilder, DAB No. 2416 at 9 (2011).  The regulation focuses on the entire amount of program losses, not the amount that could be directly attributed to Petitioner.  42 C.F.R. § 1001.102(b)(1); Leyva, DAB No. 2704 at 9; see Donald A. Burstein, Ph.D., DAB No. 1865 (2003).  Here, Petitioner’s conduct, according to her plea agreement and the District Court’s judgment, caused a financial loss of $3,500,000 to the Medicaid program, 70 times more than the $50,000 threshold to establish this aggravating factor.  Therefore, the IG has established the existence of the aggravating factor set forth at 42 C.F.R. § 1001.102(b)(1).  

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

Under 42 C.F.R. § 1001.102(b)(2), the IG may extend the length of an exclusion if “the acts that resulted in the conviction, or similar acts, were committed over a period of one year or more.”  “[T]he purpose of this aggravating factor ‘is to distinguish between petitioners whose lapse in integrity is short-lived from those who evidence a lack of such integrity over a longer period.’”  Vinod Chandrashekhar Patwardhan, M.D., DAB No. 2454 at 7 (2012) (quoting Burstein, DAB No. 1865 at 8).

Petitioner does not contest this aggravating factor.  See P. Br. at 2.  Petitioner agreed that between 2014 and January 2018, she knew M.J. submitted fraudulent claims to Medicaid on behalf of Positive Change.  IG Ex. 2 at 12-13.  During that period, Petitioner knowingly and willfully instructed and supervised employees who created false client files to submit fraudulent claims to Medicaid for services that Positive Change had not actually performed.  IG Ex. 2 at 13.

The acts that formed the basis of Petitioner’s conviction lasted more than three years, significantly exceeding the minimum one year required to meet this aggravating factor.  The length of Petitioner’s health care fraud scheme and failure to report the fraudulent activity represents more than a short-lived lapse of integrity and reflects negatively on her trustworthiness.  Hamilton, DAB No. 3061 at 14 (citing Burstein, DAB No. 1865 at 8).

Page 9

Accordingly, the IG has established a basis for application of the aggravating factor set forth at 42 C.F.R. § 1001.102(b)(2).

3. The IG established that Petitioner’s sentence included incarceration under 42 C.F.R. § 1001.102(b)(5).

An aggravating factor exists if the court imposes incarceration as part of an individual’s sentence.  42 C.F.R. § 1001.102(b)(5).  Incarceration includes, “any type of confinement with or without supervised release, including, but not limited to, community confinement, house arrest and in home detention.”  42 C.F.R. § 1001.2.

To establish the aggravating factor at 42 C.F.R. § 1001.102(b)(5), the only relevant inquiry is whether Petitioner’s sentence included incarceration.  The Board has held that “incarceration of any length would constitute an aggravating factor.”  Angelo D. Calabrese, M.D., DAB No. 2744 at 8 (2016) (emphasis added).  A nine-month incarceration that included a period of work release has been characterized as “relatively substantial.”  Jason Hollady, M.D., DAB No. 1855 at 8 (2002).

The District Court sentenced Petitioner to 24 months of incarceration and one year of supervised release.  IG Ex. 5 at 2, 3.  Petitioner also does not contest this aggravating factor.  See P. Br. at 2.  Therefore, the IG has established the presence of a third aggravating factor.

4. There are no mitigating factors applicable in this case.

If any of the aggravating factors authorized by 42 C.F.R. § 1001.102(b) apply, 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 23 years.

The only authorized mitigating factors that I may 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;

Page 10

(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.

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 ¶ 5.

Petitioner argues she had “no role in the clinical or transportation side of the business, did not prepare bills sent to the various providers and, importantly, did not share in any of the profits or revenues of the business with the owner [M.J.].”  P. Br. at 1-2.  Petitioner explains that: 

[W]hile she may have directed some of the Positive Change employees to carry out [M.J.’s] instructions, she did not realize, nor did she believe that the files were being fraudulently augmented to seek payment from the government for services that had been billed-for but not rendered services or patients that had been billed for but not seen or treated.

P. Br. at 2.

Again, while she may have been unaware or had a limited role in the fraudulent scheme, Petitioner pleaded guilty to participating in a scheme to submit false claims to Medicaid.  Petitioner may not now collaterally attack her conviction in this forum.  42 C.F.R. § 1001.2007(d); Leyva, DAB No. 2704 at 7-8.

Page 11

Moreover, Petitioner has not established a mitigating factor I may consider.  An ALJ does not have authority to consider any factors as mitigating other than those specified at 42 C.F.R. § 1001.102(c).  Waleed Khan, DAB No. 3083 at 9 (2023); Shaun Thaxter, DAB No. 3053 at 35 (2021) (“The mitigating factors that ALJs and the Board may consider are limited to those listed in the regulation.”); Anthony Joseph Moschetto, D.O., DAB No. 3030 at 14 (2021) (emphasizing that “only the mitigating factors in section 1001.102(c) may be considered for possible reduction of an exclusion period longer than the mandatory minimum period.”); Hussein Awada, M.D., DAB No. 2788 at 8 (2017) (“Only the mitigating factors identified in section 1001.102(c) may be considered and applied to reduce a period of exclusion.”).  Therefore, Petitioner has failed to meet her burden to show the existence of any regulatorily permissible mitigating factor.

5. Given the specific facts pertaining to the applicable aggravating factors, a 23-year exclusion period is not unreasonable.

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 exclusion period imposed by the IG falls within a reasonable range.  42 C.F.R. § 1001.2007(a)(1)(ii); Wilder, DAB No. 2416 at 8; Joann Fletcher Cash, DAB No. 1725 at 17 n.6 (2000).

While the IG is not compelled to extend the exclusion length for any period beyond five years in the presence of aggravating factors, she may choose to exercise her discretion to do so.  42 C.F.R. § 1001.102(b) (“Any of the following factors may be considered to be aggravating and a basis for lengthening the period of exclusion.” (emphasis added)).  An ALJ must uphold the IG’s determination as to the length of exclusion unless it is unreasonable, and an ALJ has no authority to change the amount of time chosen by the IG if it is within a reasonable range.  42 C.F.R. § 1001.2007(a)(1)(ii); 57 Fed. Reg. 3298, 3321 (Jan. 29, 1992).

“[T]he assessment of aggravating and mitigating factors is qualitative, focusing on the circumstances of the case at hand, rather than quantitative or a matter of mathematical formulas. . . .”  Sushil Aniruddh Sheth, M.D., DAB No. 2491 at 8 (2012).  The ALJ’s evaluation does not rest on the number of aggravating or mitigating factors or any rigid formula for weighing them, but on a case-specific determination of the weight to be accorded to each factor based on a qualitative assessment of the circumstances surrounding the factors in the case.  Mrugeshkumar Shah, M.D., DAB No. 3079 at 9-10 (2022) (citing Sheth, DAB No. 2491 at 5). 

Petitioner argues the 23-year exclusion is unreasonable and a five-year exclusion is a more appropriate sanction, but only specifically objects to the $3,500,000 restitution amount.  P. Br. at 2.  As discussed above, Petitioner cannot challenge the restitution amount in this forum as she agreed to that restitution amount during the District Court

Page 12

proceedings.  See also 42 C.F.R. § 1001.2007(d).  Additionally, Petitioner’s claim that any loss directly attributed to her would be less than $3,500,000 is not valid as the regulation considers the entire amount of the program’s financial loss and does not allow for reductions based on others’ joint or several liability or the benefit to Petitioner.  42 C.F.R. § 1001.102(b)(1); Leyva, DAB No. 2704 at 9; see Burstein, DAB No. 1865.

Here, the IG has established three aggravating factors— two of which Petitioner does not dispute— and Petitioner has established no mitigating factors.  The record shows that a 23-year exclusion is not unreasonable.  Petitioner pleaded guilty to one count of misprision of a felony, agreeing that she participated in the illegal conduct from 2014 through January 2018.  IG Exs. 2, 3.  The District Court sentenced Petitioner to 24 months of incarceration and one year of supervised released and ordered $3,500,000 in restitution.  IG Ex. 5 at 2, 3, 5.

Petitioner’s conduct resulted in program losses 70 times the threshold for aggravation, warranting a significant increase in Petitioner’s period of exclusion.  Thaxter, DAB No. 3053 at 31-32; de Leon, Jr., DAB No. 2533 at 5.  In instances where the program loss is substantially larger than the regulation’s threshold amount, this factor may be considered “an ‘exceptional aggravating factor’ to be accorded significant weight.”  Samirkumar Shah, M.D., DAB No. 3111 at 9 (2023) (citing Leyva, DAB No. 2704 at 10).  The restitution amount is one indication of the seriousness of Petitioner’s crime and the threat Petitioner poses to program integrity.  Awada, DAB No. 2788 at 7.  Accordingly, this factor alone justifies extending the exclusion period by a significant amount.

Petitioner’s participation in the fraudulent scheme for more than three years, from 2014 to January 2018, is thrice longer than the one-year threshold required for aggravation.  Petitioner’s long-term engagement in illegal conduct raises concerns about her trustworthiness and demonstrates that she poses a substantial threat to federal health care programs and beneficiaries.  See, e.g., Mrugeshkumar Shah, DAB No. 3079 at 10; Hamilton, DAB No. 3061 at 14; Awada, DAB No. 2788 at 8.  Significant weight may be assigned to illegal conduct that “occurred for even slightly longer than the one-year threshold.”  Mrugeshkumar Shah, DAB No. 3079 at 10 (citing Awada, DAB No. 2788 at 8-10).  Therefore, this factor also weighs in favor of a longer exclusion period to protect federally funded health care programs from the threat of untrustworthy actors.  See Cash, DAB No. 1725 at 15.

Additionally, the District Court sentenced Petitioner to 24 months of incarceration and one year of supervised release, which further warrants a greater exclusion period.  This substantial term of incarceration reflects the seriousness of Petitioner’s offense and justifies a longer period of exclusion.  De Leon, Jr., DAB No. 2533 at 6 (noting that “a substantial period of incarceration would, on its own, justify the I.G. in increasing an exclusion significantly in excess” of the mandatory minimum); Thaxter, DAB No. 3053 at 28 (affirming “a six-month sentence is not insignificant” and “[a]ny period of

Page 13

incarceration justifies increasing the period of exclusion”).  Further, the fact that Petitioner was sentenced to incarceration demonstrates the federal district court judge deemed Petitioner’s conduct sufficiently serious to merit incarceration and serves as further evidence of her untrustworthiness.  Gerald A. Snider, M.D., DAB No. 1637 at 8 (1997).  The length of Petitioner’s sentence reflects the seriousness of Petitioner’s criminal conduct and justifies a substantial increase in the duration of Petitioner’s exclusion.

Considering the three aggravating factors, particularly the extremely long duration of Petitioner’s illegal conduct and the significant program losses resulting from the fraudulent scheme, and the absence of any mitigating factors, I conclude that the IG’s assessment of a 23-year exclusionary period is not unreasonable.

VI.   Conclusion

I affirm the IG’s determination to exclude Petitioner for 23 years from participating in Medicare, Medicaid, and all other federal healthcare programs pursuant to 42 U.S.C. § 1320a-7(a)(1), and I find that the length of the exclusion the IG imposed is not unreasonable.