Wax David Flowers, Ph.D., DAB No. 3039 (2021)

FINAL DECISION ON REVIEW OF ADMINISTRATIVE LAW JUDGE DECISION

Petitioner Wax David Flowers, Ph.D. appeals the February 23, 2021 decision of an Administrative Law Judge (ALJ), Wax David Flowers, Ph.D., DAB CR5822 (2021) (ALJ Decision).  The ALJ sustained, on summary judgment, the determination of the Inspector General (I.G.) to exclude Petitioner from participation in Medicare, Medicaid, and all federal health care programs under section 1128(a)(l) of the Social Security Act (Act), based on his state court conviction for Medicaid fraud.  The ALJ also determined that excluding Petitioner for a minimum of eight years – three years longer than the statutory minimum of five years – was not unreasonable based on the existence of three aggravating factors and the absence of any mitigating factors. 

We conclude that summary judgment for the I.G. was appropriate and that the undisputed material facts support an eight-year exclusion.  Accordingly, we affirm the ALJ Decision. 

Legal background

Section 1128(a)(1) of the Act requires the Secretary of Health and Human Services to exclude an individual from participation in all federal health care programs if that individual “has been convicted of a criminal offense related to the delivery of an item or service under title XVIII [of the Act, that is, Medicare,] or under any State health care program.”  Accord 42 C.F.R. § 1001.101(a).We apply the regulations that were in effect when the I.G. issued the determination to exclude Petitioner.  See Ishtiaq A. Malik, M.D., DAB No. 2962, at 1 n.2 (2019), appeal docketed, Malik v. United States Dep’t of Health & Human Servs., No. 1:20-CV-00091 (E.D. Va. Jan. 28, 2020).  An individual is “convicted” of a criminal offense “when a plea of guilty or nolo contendere by the individual . . . has been accepted by a Federal, State, or local court[.]”  Act § 1128(i)(3); see also 42 C.F.R. § 1001.2 (paragraph (c) under the definition of “Convicted”).  “State health care program” includes a “State plan approved under title XIX [of the Act, that is, Medicaid.]”  Act § 1128(h)(1).   

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Five years is the mandatory minimum period of exclusion for an exclusion imposed under section 1128(a)(1).  Act § 1128(c)(3)(B); 42 C.F.R. § 1001.102(a).  The I.G. may extend the five-year exclusion period based on the application of the aggravating factors in 42 C.F.R. § 1001.102(b).  As relevant here, those factors include the following:  “[t]he 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”; “[t]he acts that resulted in the conviction, or similar acts, were committed over a period of one year or more”; and “[t]he sentence imposed by the court included incarceration.”  Id. § 1001.102(b)(1), (b)(2), (b)(5).  

Only if any aggravating factor(s) in section 1001.102(b) is (or are) applied to lengthen the five-year exclusion period may the mitigating factors in section 1001.102(c) (and only those mitigating factors) be considered to reduce the length of the exclusion period to no less than five years.  42 C.F.R. § 1001.102(c).  Those factors are:

(1) In the case of an exclusion under § 1001.101(a), whether the individual . . . 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 government 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 . . . 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; [and]

(3) The individual’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 [42 C.F.R.] part 1003 . . . . 

Id. § 1001.102(c)(1)-(3). 

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An excluded individual may request a hearing before an ALJ, but only on the issues of whether the I.G. had a basis for the exclusion and whether any period of exclusion longer than the mandatory minimum is unreasonable.  42 C.F.R. §§ 1001.2007(a), 1005.2(a). 

The ALJ will issue an initial decision and any party may appeal that decision to the Departmental Appeals Board (Board).  Id. §§ 1005.20, 1005.21.  The Board “may decline to review the case, or may affirm, increase, reduce, reverse or remand any penalty, assessment or exclusion determined by the ALJ.”  Id.§ 1005.21(g).

Case background

The facts set out in this section are drawn from the ALJ Decision and the record of the ALJ proceedings.  These facts are undisputed unless otherwise stated.

Petitioner was a Licensed Clinical Social Worker in Georgia.  I.G. Ex. 2, at 3.  A bill of indictment, filed on April 25, 2019 in the Superior Court of Dekalb County, Georgia (court), charged Petitioner with two counts of Medicaid fraud and five counts of forgery in the second degree in violation of Georgia law.  I.G. Ex. 2; Official Code of Georgia Annotated (O.C.G.A.) §§ 49-4-146.1(b) and 16-9-1(c).  On November 12, 2019, Petitioner pleaded guilty to one count of Medicaid fraud (Count 1) (I.G. Exs. 2, at 1; 3, at 1, 3) as set out in the indictment, which alleged that, “between on or about May 11, 2016 and continuing through on or about May 16, 2018” (I.G. Ex. 2, at 3, emphasis in original removed), Petitioner unlawfully obtained and retained “for himself payments to which he was not entitled . . . by means of a fraudulent scheme and device.”  I.G. Ex. 2, at 3.  Specifically, Petitioner used his business, Positive Impact Residential Services, Inc., to file claims with Amerigroup Georgia Managed Care Company, Inc., d/b/a Amerigroup Community Care, a managed care program funded in part by the Georgia Medicaid program, for therapy services Petitioner did not provide to Georgia Medicaid beneficiaries.  Id. at 3-4.  The indictment alleged that, by filing the fraudulent claims, Petitioner “caused Amerigroup to deposit payments in the approximate amount of $57,700.53 into a bank account under his ownership and control.”  Id. at 4.  Petitioner thereby “obtained and retained payments to which he was not entitled and in amounts greater than that to which he was entitled.”  Id.

On November 12, 2019, the court accepted Petitioner’s plea of guilty to the charge of Medicaid fraud (Count 1).Employing the process of nolle prosequi, the state decided not to proceed on the remaining counts.  I.G. Ex. 3, at 1 and 5 (indicating a disposition of “NOLLE PROSSE” as to Counts 2-7).  I.G. Exs. 2, at 1; 3, at 1-3.  That day the court sentenced Petitioner to ten years, with six months to be served in confinement and the remainder to be served on probation (provided that the defendant, Petitioner, complied with the conditions of probation).  I.G. Ex. 3, at 1, 2.  The court also ordered Petitioner not to

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participate in or contract with any entity doing business with Georgia Medicaid and to pay $118,281.53 in restitution.  Id. at 3.

By letter dated July 31, 2020, the I.G. notified Petitioner that he was excluded from participation in Medicare, Medicaid, and all federal health care programs under section 1128(a)(1) of the Act, based on his conviction, as defined in section 1128(i) of the Act, in the Superior Court of Dekalb County, Georgia, of a criminal offense related to the delivery of an item or service under Medicare or a State health care program.  I.G. Ex. 1, at 1.  The notice also informed Petitioner that he would be excluded for a minimum of eight years based on the circumstances of his case.  Id. at 1, 2.  The I.G. stated:  

• 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 entities of $50,000 or more. . . .  The court ordered you to pay approximately $118,200 in restitution.
• 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 May 2016 to about May 2018.
• The sentence imposed by the court included incarceration.  The court sentenced you to 6 months of incarceration.

Id. at 2 (citing Act § 1128(c)(3)(B)); accord 42 C.F.R. § 1001.102(b)(1), (2), (5).

ALJ proceedings and decision

Petitioner timely filed a request for hearing, challenging the I.G.’s determination to extend the mandatory minimum exclusion period to eight years.  ALJ Decision at 2, 3, 4; Statement submitted with request for hearing (CRD Dkt. No. C-20-767) at 2.  The I.G. filed a motion for summary judgment and supporting brief, asserting that the undisputed facts support the legal basis for exclusion, section 1128(a)(1) of the Act, and the duration of the exclusion period, eight years.  ALJ Decision at 2; I.G. Br. at 1, 12.  Petitioner responded to the I.G.’s brief, asserting “there are disputes of material facts” concerning “the issue of mitigating circumstances.”  P. Br. at 2.  The I.G. filed a reply brief, to which Petitioner filed a response.  ALJ Decision at 2.  In the absence of objections to any exhibit, the ALJ admitted Petitioner’s exhibits 1-8 and I.G.’s exhibits 1-3 into the record.  Id.  Neither party offered testimonial evidence. 

Petitioner requested an opportunity to present oral argument.  P. Br. at 2.  The ALJ denied the request because he determined that “the documentary evidence and briefing by the parties are sufficient” and “oral argument would not be beneficial.”  ALJ Decision at 4-5.

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Petitioner also asked the ALJ to waive the exclusion.  P. Br. at 3-7.  The ALJ determined that he had no authority to grant the waiver, stating, “Only the Secretary and the IG have the authority to grant a waiver, and then only in limited circumstances that do not appear to be applicable in this case.”  ALJ Decision at 7 (citing Act § 1128(c)(3)(B), (d)(3)(B); 42 C.F.R. § 1001.1801; Delores L. Knight, DAB No. 2945, at 12-13 (2019)). 

The ALJ determined that it would be appropriate to decide the appeal by summary judgment because there were no genuine issues of material fact in dispute as to the existence of a qualifying conviction for exclusion under section 1128(a)(1) of the Act or as to the three aggravating factors that could be applied to extend the five-year exclusion period.  ALJ Decision at 4 (citing 42 C.F.R. § 1005.4(b)(12), which permits the ALJ to resolve a case, in whole or in part, by summary judgment).  Moreover, the ALJ determined, Petitioner failed to show a genuine dispute of material fact as to any mitigating factor authorized by section 1001.102(c) and which could be applied to offset the effect of the aggravating factors.The ALJ notified Petitioner early in the appeal process that he must bear the burden of proof of going forward and the burden of persuasion on any affirmative defenses or mitigating factors by a preponderance of the evidence.  ALJ’s October 8, 2020 Prehearing Conference Order and Schedule for Filing Briefs and Documentary Evidence (Prehearing Order) at 4, ¶ 4 (citing 42 C.F.R. § 1005.15(b), (c)).  Id. at 4, 10. 

The ALJ found that the evidence established a qualifying conviction.The ALJ determined that Petitioner was “convicted” of Medicaid fraud in accordance with section 1128(i)(3) of the Act.  ALJ Decision at 6.  The I.G. maintained that Petitioner was also “convicted” consistent with section 1128(i)(1) of the Act, which provides that an individual is “convicted” of a criminal offense “when a judgment of conviction has been entered against the individual . . . by a Federal, State, or local court, regardless of whether there is an appeal pending or whether the judgment of conviction or other record relating to criminal conduct has been expunged.”  I.G. Br. to the ALJ at 5.  The ALJ did not need to also find that Petitioner was convicted in accordance with section 1128(i)(1) of the Act, nor do we, in order to decide whether summary judgment for the I.G. was appropriate.  Petitioner does not dispute that he was “convicted” within the meaning of section 1128(i) of the Act for purposes of exclusion under section 1128(a)(1) of the Act.  The ALJ found that, on November 12, 2019, Petitioner pleaded guilty to an allegation that he committed Medicaid fraud from on or about May 2016 through on or about May 2018, by using his business to file claims with, and receive reimbursement from, a managed care program funded by Georgia Medicaid, for therapy services he did not provide.  The court accepted that plea and entered judgment.  ALJ Decision at 5, 6, 8 (citing I.G. Exs. 2, 3; P. Exs. 3, 4).  The ALJ also determined that “there is a common-sense connection or nexus between Petitioner’s Medicaid fraud and the delivery of an item or service under Medicaid, a state health care program.”  Id. at 6 (citing Saadite A. Green, DAB No. 2940, at 6-7 (2019)); see also id. at 2 (citing section 1128(h)(1) of the Act and stating that “[a] state health care program includes a state Medicaid program”).  By pleading guilty to the charge of Medicaid fraud, the ALJ stated, Petitioner admitted the facts as alleged in Count 1 of the indictment – that he filed claims for Medicaid reimbursement for therapy services that he did not provide.  Id. at 6; I.G. Ex. 2, at 3-4.  Petitioner did not dispute that he was

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convicted of Medicaid fraud or that his offense was related to the delivery of an item or service under Medicaid.  ALJ Decision at 4, 6.  The ALJ thus concluded that Petitioner was convicted of a criminal offense related to the delivery of an item or service under a state healthcare program, thereby “trigger[ing] a mandatory exclusion pursuant to section 1128(a)(1) of the Act.”  Id. at 6. 

Turning to the duration of the exclusion period, the ALJ found that the undisputed facts established three aggravating factors.  ALJ Decision at 7-8.  The ALJ found as follows:

• The acts that resulted in Petitioner’s conviction for Medicaid fraud caused Georgia Medicaid to lose more than $50,000.  Id. at 5, 7-8 (citing I.G. Exs. 2, at 3-4; 3, at 3); 42 C.F.R. § 1001.102(b)(1).
• The acts that resulted in Petitioner’s conviction for Medicaid fraud were committed over a period of one year or more (from on or about May 2016 through on or about May 2018).  ALJ Decision at 5, 7-8 (citing I.G. Ex. 2, at 3-4); 42 C.F.R. § 1001.102(b)(2).
• The court sentenced Petitioner to six months of confinement.  ALJ Decision at 5, 7-8 (citing I.G. Ex. 3, at 1 (sentencing Petitioner “to confinement in such institution as the Commissioner of the State Department of Corrections may direct”)); 42 C.F.R. § 1001.102(b)(5).Section 1001.102(b)(5) requires that a court-imposed sentence include “incarceration,” a term 42 C.F.R. § 1001.2 defines as “imprisonment or any type of confinement with or without supervised release, including, but not limited to, community confinement, house arrest and home detention.”  Emphasis added.  We are bound by this definition.  See Laura Leyva, DAB No. 2704, at 11 (2016), aff’d, Leyva v. Price, No. 8:16-CV-1986, 2017 WL 2880125 (M.D. Fla. Apr. 24, 2017).  Section 1001.2’s broad definition of “incarceration” encompasses the confinement to which the court sentenced Petitioner.  In any case, Petitioner does not dispute that he was sentenced to incarceration for purposes of this aggravating factor.   

On the aggravating factor in section 1001.102(b)(1), the ALJ acknowledged Petitioner’s argument that $57,700.53, the amount Count 1 of the indictment alleged Petitioner had fraudulently obtained from Georgia Medicaid, not the $118,281.53 reflected in the sentencing document as the restitution amount, should be considered the relevant amount.  ALJ Decision at 8 (citing P. Br. at 7-8, 10-11).  The ALJ rejected that argument, stating that “[t]he Board has held that an amount ordered as restitution constitutes proof of the amount of financial loss to a government program.”  Id. (citing 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); Leyva, DAB No. 2704, at 9).  The ALJ also stated, that, even were he to accept that Georgia Medicaid lost $57,700.53 as a result of Petitioner’s acts, that amount exceeded the $50,000 loss that triggers the aggravating

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factor in section 1001.102(b)(1).The court’s sentencing document did not specify to whom the restitution of $118,281.53 was to be made.  See I.G. Ex. 3, at 3.  However, Count 1 charged Petitioner with receipt of $57,700.53 obtained through fraudulent Medicaid claims submitted to Amerigroup; Count 2 charged Petitioner with receipt of $60,581 obtained through fraudulent Medicaid claims submitted to WellCare of Georgia, Inc, a Georgia Medicaid agent (allegedly claimed between on or about May 4, 2016 and continuing through on or about June 15, 2017).  I.G. Ex. 2, at 4, 5-6; I.G. Ex. 3, at 1.  The amounts, $57,700.53 and $60,581, combined, equal $118,281.53, the total restitution amount.  Accordingly, it appears the court determined that Georgia Medicaid incurred a loss of $118,281.53 as a result of Petitioner’s acts.  We also note that section 1001.102(b)(1) provides, “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[.]”  Accordingly, it is proper to consider the entire amount of $118,281.53 as the amount Georgia Medicaid lost.  In any case, as the ALJ correctly noted, the amount of loss alleged under Count 1, $57,700.53, alone, is higher than the $50,000 in loss necessary to apply the aggravating factor in section 1001.102(b)(1).  Id.  As for the aggravating factor in section 1001.102(b)(2), the ALJ stated that Petitioner’s misconduct, which occurred “for more than a year,” was “not short-lived.”  Id. (citing Hussein Awada, DAB No. 2788, at 8 (2017)).   

Petitioner asked the ALJ to reduce the eight-year exclusion period based on, among other things, his age, lengthy duration of practice with no complaints, lack of prior criminal convictions, and history of service and helping people.  ALJ Decision at 9-10 (citing request for hearing; P. Br.; P. Exs. 5, 6, 8).  The ALJ considered Petitioner’s assertions and representations as true for purposes of summary judgment, but determined that “not one of Petitioner’s asserted mitigating factors is a mitigating factor that [he was] authorized to consider by 42 C.F.R. § 1001.102(c) to reduce the period of exclusion imposed by the IG.”  Id. at 10.  “Therefore,” the ALJ concluded, “Petitioner has failed to meet his burden to show the existence of a mitigating factor.”  Id. 

The ALJ determined that an eight-year exclusion is “within a reasonable range” and “not unreasonable” considering evidence of three aggravating factors and no evidence of the mitigating factors recognized in section 1001.102(c).  ALJ Decision at 10-11 (citing Joann Fletcher Cash, DAB No. 1725, at 17 n.6 (2000) and other Board decisions; 42 C.F.R. § 1001.2007(a)(1)).  Accordingly, the ALJ stated, “No basis exists for me to reassess the period of exclusion.”  Id. at 11. 

The ALJ concluded that Petitioner is excluded from participation in Medicare, Medicaid, and all other federal health care programs for a minimum of eight years, effective August 20, 2020.The regulation in 42 C.F.R. § 1001.2002(b) provides, “The exclusion will be effective 20 days from the date of the notice” to the affected individual of the I.G.’s exclusion decision.  Accordingly, as the ALJ stated, Petitioner’s exclusion took effect August 20, 2020, 20 days from the I.G.’s exclusion notice, dated July 31, 2020.  ALJ Decision at 1, 11; I.G. Ex. 1, at 1.  Id. at 1, 11.  

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Standard of review

The Board reviews a disputed issue of fact as to whether the ALJ’s decision is “supported by substantial evidence on the whole record” and a disputed issue of law as to whether the ALJ’s decision is “erroneous.”  42 C.F.R. § 1005.21(h).  

We review whether summary judgment is appropriate de novo.  Knight, DAB No. 2945, at 5; Kimbrell Colburn, DAB No. 2683, at 4-5 (2016); Timothy Wayne Hensley, DAB No. 2044, at 2 (2006).  “Summary judgment is appropriate when the record shows there is no genuine issue as to any material fact, and the moving party is entitled to judgment as a matter of law.”  Southpark Meadows Nursing & Rehab. Ctr., DAB No. 2703, at 5 (2016).  A dispute of fact is “material” if its resolution might affect the outcome of the case under the governing law.  Id. (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)).  In evaluating a party’s motion for summary judgment, we view the record in the light most favorable to the non-moving party (here, Petitioner, the party who did not prevail before the ALJ on summary judgment) and giving that party the benefit of all reasonable inferences.  Pearsall Nursing & Rehab. Ctr., DAB No. 2692, at 5 (2016); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (quoting United States v. Diebold, Inc., 369 U.S. 654, 655 (1962)).  Drawing factual inferences in the light most favorable to the non-moving party does not, however, require that a reviewer draw unreasonable inferences or accept the non-moving party’s legal conclusions.  Brightview Care Ctr., DAB No. 2132, at 10 (2007); Cedar Lake Nursing Home, DAB No. 2344, at 7 (2010).  Inferences based on speculation are not reasonable.  Dumas Nursing & Rehab., L.P., DAB No. 2347, at 18 (2010).  Nor may the adjudicator make credibility determinations or weigh the evidence when deciding a summary judgment motion.  See Anderson, 477 U.S. at 249. 

Analysis

Before the Board, Petitioner does not dispute that:  (1) he was convicted of Medicaid fraud; (2) he caused Georgia Medicaid to lose more than $50,000; (3) he committed fraud for a period exceeding one year; and (4) the court sentenced him to confinement.  Nor does Petitioner challenge the ALJ’s determination that the offense of which he was convicted is “related to the delivery of an item or service under” Medicaid, a state health care program.  Petitioner does not dispute the ALJ’s determination that he failed to identify any mitigating factor in section 1001.102(c); nor does he now assert that any such mitigating factor exists.    

We determine (as the ALJ did) that the undisputed facts establish a basis for exclusion under section 1128(a)(1) of the Act and the existence of three aggravating factors.  We also agree with the ALJ that the aggravating factors together amply support an exclusion period of eight years, which is reasonable and appropriate to protect federal health care

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programs.The I.G. urges the Board to affirm the ALJ’s decision because it is free of legal error and is supported by substantial evidence on the record as a whole.  I.G.’s response brief at 1, 2-3, 4, 6.  This misstates the standard for our review of summary judgment as set out earlier in this decision.  We affirm the ALJ’s decision because, on de novo review of the question of summary judgment, we find that the undisputed material facts establish a qualifying conviction for exclusion under section 1128(a)(1) of the Act and the bases for reasonably extending the five-year exclusion period by three years.  We agree that the ALJ’s decision is free of legal error.  Evidence that Petitioner defrauded Medicaid for two years, double the minimum one-year period set out in section 1001.102(b)(2), is particularly important.  That evidence indicates Petitioner’s lapse in integrity was, as the ALJ stated in page 8 of his decision, not “short-lived.”  See Vinod Chandrashekhar Patwardhan, M.D., DAB No. 2454, at 7 (2012) (The purpose of the aggravating factor in 42 C.F.R. § 1001.102(b)(2) is to distinguish individuals whose lapse in integrity is short-lived from individuals who show lack of integrity for a longer period.).

Petitioner asks the Board to shorten the exclusion period or “dismiss” the exclusion case altogether for two reasons.  Notice of Appeal (NA) at 2; Reply Br. at 2.  First, Petitioner complains that, early in the appeal process, the ALJ denied his motion “requesting time to obtain an attorney” and thus he “never obtained an attorney” to represent him during the ALJ proceedings.  Reply Br. at 1.  Second, Petitioner complains that the ALJ deprived him of sufficient time to “mount” a “credible” and “viable” “defense.”  NA at 1-2.  We address the complaints below and explain why neither complaint has merit. 

In a letter dated September 16, 2020, the Civil Remedies Division notified the parties that, on October 6, 2020, the ALJ would hold a prehearing conference to establish a schedule for development of the case.  In a “Motion for Continuance” dated September 22, 2020, Petitioner asked the ALJ to postpone the prehearing conference because he “need[ed] time to seek legal advice.”  By ruling issued September 25, 2020, the ALJ denied Petitioner’s motion, stating that “Petitioner has ample time before the prehearing conference to seek legal counsel” and, in any case, “the purpose of the conference is to discuss procedural matters, not the substance of Petitioner’s case.”  September 25, 2020 Ruling at 1; 42 C.F.R. § 1005.6(b) (setting out various types of procedural matters, e.g., scheduling dates for the exchange of witness lists and proposed exhibits, that an ALJ could discuss with the parties at a prehearing conference).  The prehearing conference took place on October 6, 2020, as scheduled.  As the ALJ noted in his October 8, 2020 Prehearing OrderThe ALJ gave the parties ten days to raise any objection to his Prehearing Order.  Prehearing Order at 6.  The record reveals no objection. issued in accordance with 42 C.F.R. § 1005.6(c), Petitioner appeared at the prehearing conference pro se; an attorney appeared on behalf of the I.G.  Prehearing Order at 2, ¶ 1.

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We reject the implication that, by not postponing the prehearing conference, the ALJ denied Petitioner an opportunity to retain an attorney at any time during the ALJ proceedings.  See Reply Br. at 1 (stating that Petitioner “never obtained an attorney” because the ALJ denied his motion to postpone the prehearing conference); id. at 2 (stating that “by denying time for Petitioner to obtain an attorney” the ALJ violated Petitioner’s right to counsel under the United States Constitution, which, Petitioner says, “mandates that every U.S. citizen is entitled to an attorney”).  Although the ALJ proceeded with the prehearing conference as scheduled, the ALJ nevertheless informed Petitioner before the prehearing conference that if Petitioner were to retain counsel after the prehearing conference, that counsel could ask the ALJ to modify the schedule for prehearing development.  September 25, 2020 Ruling at 1.  Thus, Petitioner was made aware that he could retain an attorney later should he choose to do so, and that the ALJ would consider revising the schedule for prehearing development as appropriate to give the attorney representing Petitioner additional time, if requested.  We note, moreover, that after the prehearing conference the ALJ again expressly informed Petitioner that he “may retain counsel to represent him in this matter at any time,” though Petitioner was not entitled to have an attorney appointed to represent him and the government was not obligated to pay counsel fees.  Prehearing Order at 2, ¶¶ 1a and 1b.  Petitioner did not retain an attorney at any time during the ALJ proceedings and proceeded pro se, as he now does in his appeal of the ALJ Decision to the Board.  Petitioner’s proceeding pro se is not attributable to the ALJ’s determination to convene the prehearing conference as scheduled.  The ALJ did not in any way deprive Petitioner of his right to obtain the advice and counsel of an attorney during the proceedings below.           

As for Petitioner’s complaint that the ALJ did not give him sufficient time to prepare his submissions, Petitioner states that, after he received the I.G.’s motion, brief and exhibits on November 19, 2020, he had only one week “outside . . . [the] holidays” since, by his count, the Thanksgiving holiday lasted one week, the Christmas holiday lasted for approximately two weeks, and the New Year’s holiday lasted approximately one week.  NA at 1-2; Reply Br. at 1 (similar statements).  Petitioner also writes, “Petitioner filed a brief . . . asking for a continuance.  Petitioner was not given enough time to prepare a defense despite asking for more time.  Petitioner prayed for time to investigate and analyze the evidence in order to prepare a defense due to not receiving the evidence and arguments until November 19, 2020.”  NA at 1; Reply Br. at 2 (similar statement).Petitioner also “refers to the Constitution that affords Petitioner due process which includes time to mount a defense.”  NA at 2; Reply Br. at 2 (same statement).  As noted earlier, he also asserts that the United States Constitution entitles him to attorney representation.  Reply Br. at 2.  As explained in the text, we have determined that Petitioner was afforded sufficient opportunity to retain an attorney and to make his case before the ALJ in accordance with the governing exclusion statute, regulations and procedures.  To the extent Petitioner’s statements may be understood as asserting that the proceedings violate constitutional due process provisions, the Board has no authority to alter or reject applicable procedures on constitutional grounds.  See, e.g., Aiman M. Hamdan, M.D., DAB No. 2955, at 9 (2019) (and cited cases); Funmilola Mary Taiwo, DAB No. 2995, at 9-10 (2020) (and cited cases).  In any case, as explained in the text, we find Petitioner received all the process that was due.

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The I.G. filed a motion for summary judgment and brief in support of the motion, along with the I.G.’s exhibits, on November 19, 2020, one day before the due date set in the October 8, 2020 Prehearing Order, page 4, paragraph 5a.  Petitioner’s submission was due January 4, 2021.  Prehearing Order at 4, ¶ 5b.  On December 14, 2020, Petitioner filed a “Motion for Continuance” (Motion), stating that he was “seeking a continuance” because he needed more time to prepare his submissions.  Motion at 1.  In the Motion, Petitioner made statements about the duration of the holidays that are similar to his statements in his Notice of Appeal and reply brief.  See id. at 1-2.

By order dated December 17, 2020, the ALJ granted an extension of the prehearing schedule (Extension Order).  The ALJ noted that the I.G. did not oppose Petitioner’s Motion.  Finding good cause to grant additional time, the ALJ extended the due date for Petitioner to respond to the I.G.’s motion for summary judgment from January 4 to January 18, 2021, and the due date for the I.G. to file a reply brief or a waiver of reply, from January 19 to February 2, 2021, thereby extending the parties’ respective filing due dates established in the Prehearing Order (page 4, ¶ 5) by two weeks.  Petitioner filed his brief and exhibits on January 15, 2021, three days before the extended due date.  The I.G. then filed a reply brief on January 27, 2021.  Thus, both parties complied with the extended due dates established by the Extension Order.

Petitioner’s assertion that the ALJ did not afford him sufficient opportunity to present his case in defense of the exclusion has no merit.  In his Motion to the ALJ, Petitioner did not specify how much additional time he needed to prepare his response brief and exhibits, and thus did not comply with the ALJ’s Prehearing Order, page 3, paragraph 1f, which required the movant to “state the number of days requested for the extension.”  In our view, it was reasonable for the ALJ, in exercising his discretionary authority, to grant a two-week extension when Petitioner did not specify the amount of additional time he needed to prepare and file his brief and exhibits.  See 42 C.F.R. § 1005.4(b)(6) (“The ALJ has the authority to . . . [r]ule on motions and other procedural matters[.]”).  The record reflects no communication from Petitioner to the ALJ’s office between December 18, 2020, the date on which the Extension Order was uploaded to DAB E-File, and January 15, 2021, when Petitioner filed his brief and exhibits.  If Petitioner believed he needed more time, he presumably could have filed a motion for another extension.  The Extension Order did not include any language that Petitioner reasonably could have understood to mean that no further extension request would be considered.  Nor do we see in the record any earlier ALJ order or instructions indicating that the ALJ would consider only one extension of the due dates set in his Prehearing Order.  Petitioner, as noted, filed his brief and exhibits three days before the extended due date without making

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any comment about the two-week extension.The regulation at 42 C.F.R. § 1005.21(e) provides that the Board does not consider “any issue in the [parties’] briefs that could have been raised before the ALJ but was not.”  As noted, Petitioner failed to raise any objection to the length of the extension before the ALJ, and, in any case, Petitioner’s argument to us on the question of his time to respond fails on the merits. 

We also note that, on February 14, 2021, Petitioner submitted a reply to the I.G.’s reply brief.  The ALJ accepted and considered that reply before issuing his decision even though neither his Prehearing Order nor his Extension Order expressly permitted an opportunity to reply to the I.G.’s reply brief and Petitioner apparently did not request leave to file that reply.  See ALJ Decision at 2 (“Petitioner filed a further reply on February 14, 2021.”).  The ALJ’s acceptance and consideration of Petitioner’s reply to the I.G.’s reply brief further undercuts Petitioner’s argument that the ALJ did not give him sufficient opportunity to present his case to the ALJ. 

Moreover, a mandatory exclusion period lengthened through the application of the aggravating factors, as here, may be reduced at best to five years, if the length of the period is unreasonable based on the proven aggravating factors, any applicable proven mitigating factors and the surrounding circumstances.  See, e.g., Robinson, DAB No. 1905, at 11.  The ALJ correctly determined that, even accepting all of Petitioner’s assertions and representations as true for purposes of summary judgment, Petitioner did not identify any mitigating factor recognized in section 1001.102(c).  See ALJ Decision at 4, 8-10.  Petitioner therefore has not “presented through a preponderance of evidence” that the extended exclusion period should be reduced to “no more than 5 years,” contrary to his claims.  NA at 2; Reply Br. at 2.  No exclusion law or regulation authorizes the Board (or the ALJ) to reduce an exclusion period longer than the mandatory minimum to the mandatory minimum as “compensat[ion]” (NA at 2) for (alleged) due process violations.  We see no such infringement or irregularity here.  At bottom, Petitioner has not identified or proven any basis for reducing the eight-year exclusion, which we agree with the ALJ is reasonable, despite having been given ample opportunity to do so.

We reject Petitioner’s argument that he was not afforded adequate opportunity to make his case before the ALJ.

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Conclusion

We affirm the ALJ Decision.