Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD
Appellate Division
Yolanda Hamilton, M.D.
Docket No. A-22-32
Decision No. 3061
FINAL DECISION ON REVIEW OF ADMINISTRATIVE LAW JUDGE DECISION
Petitioner Yolanda Hamilton, M.D. appeals the decision by an Administrative Law Judge (ALJ) upholding the determination of the Inspector General (I.G.) to exclude Petitioner from participation in all federal health care programs under section 1128(a)(1) of the Social Security Act (Act) based on her conviction of a criminal offense related to the delivery of an item or service under a federal or state health care program. Yolanda Hamilton, M.D., DAB CR6005 (2021) (ALJ Decision). The ALJ also determined that excluding Petitioner for 35 years – 30 years longer than the statutory minimum of five years – was reasonable.
For the reasons explained below, we conclude that the ALJ Decision is supported by substantial evidence and is free of legal error. We therefore affirm the ALJ Decision.
Legal Background
Section 1128(a)(1) of the Act requires the Secretary of Health and Human Services to exclude from participation in federal health care programs an individual who “has been convicted of a criminal offense related to the delivery of an item or service” under Medicare or under any state health care program.
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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.” Act § 1128(i)(1); see also 42 C.F.R. § 1001.2 (paragraph (a) under the definition of “Convicted”).
In an appeal of an exclusion, the individual excluded from program participation based on a criminal conviction, a civil judgment imposing liability by Federal, State or local court, or other prior determination where the facts were adjudicated and a final decision was made is barred from collaterally attacking the basis for that underlying decision on substantive or procedural grounds. See 42 C.F.R. § 1001.2007(d).
The mandatory minimum period of an exclusion imposed under section 1128(a) is five years. Act § 1128(c)(3)(B); 42 C.F.R. § 1001.102(a). The I.G. may extend the mandatory minimum period of exclusion based on the application of the aggravating factors in 42 C.F.R. § 1001.102(b). Four of those factors are relevant here. They are:
- 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 acts that resulted in the conviction, or similar acts, were committed over a period of one year or more;
- The sentence imposed by the court included incarceration; and
- The individual or entity has been the subject of any other adverse action by any Federal, State or local government agency or board if the adverse action is based on the same set of circumstances that serves as the basis for the imposition of the exclusion.
42 C.F.R. § 1001.102(b)(1), (2), (5), (9).
The I.G. may apply any mitigating factor in section 1001.102(c) only if the I.G. extends an exclusion period based on the application of one or more aggravating factors in section 1001.102(b). Only those mitigating factors specified in this regulation may be applied to reduce the length of the exclusion period to no less than the mandatory minimum five years. 42 C.F.R. § 1001.102(c).
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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 an exclusion longer than the mandatory minimum period is unreasonable in light of any applicable aggravating and mitigating factors specified in the regulations. 42 C.F.R. §§ 1001.2007(a), 1005.2(a). A party dissatisfied with the ALJ’s decision may appeal it to the Board. Id. § 1005.21(a).
Case Background The factual information in this section is drawn from the ALJ Decision and the record of the ALJ proceedings and is not intended to replace, modify, or supplement the ALJ’s findings of fact.
Petitioner is a Texas physician who owned and operated HMS Health and Wellness Center, PLLC, a medical clinic in Houston, Texas. I.G. Ex. 2, at 3.
On July 6, 2017, a grand jury in the U.S. District Court for the Southern District of Texas, Houston Division (District Court), indicted Petitioner on one count of Conspiracy to Commit Health Care Fraud in violation of 18 U.S.C. § 1349, one count of Conspiracy to Solicit and Receive Healthcare Kickbacks in violation of 18 U.S.C. § 371, and four counts of False Statements Relating to Health Care Matters in violation of 18 U.S.C. § 1035. I.G. Ex. 2, at 1, 4-10. The indictment alleged that –
- From about January 2012 to about August 2016, Petitioner and others conspired to sign false and fraudulent plans of care and other medical documents for Medicare beneficiaries; caused the submission and concealment of false and fraudulent Medicare claims and the receipt and transfer of proceeds from those claims; and caused the diversion of the proceeds of the fraud for the personal use and benefit of Petitioner and her co-conspirators. Id. at 4.
- Petitioner fraudulently certified and recertified patients for home health care services by falsely stating in medical documents that the patients were qualified for, and had a medical need for, those services; submitted Part B claims to Medicare and Texas Medicaid for certifying and recertifying patients not qualified for home health services; and submitted Part B claims to Medicare for medically unnecessary tests performed on the patients referred to home health care. Id. at 3, 5.
- From about January 2012 to about August 2016, Petitioner submitted, and caused the submission of, approximately $2.8 million in Medicare claims for certifying and recertifying patients for home health services. Medicare paid Petitioner approximately $275,000 on those claims. Id. at 6.
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- “From in or around January 2012 to in or around August 2016, co-conspirators at [home health agencies], known and unknown, submitted, and caused the submission of, approximately $13.8 million to Medicare in claims for home-health services submitted by [home health agencies] where [Petitioner] was listed as the attending physician. Medicare paid [home health agencies] approximately $15.8 million on these claims.” Id.
- Petitioner solicited and received kickbacks and bribes from co-conspirators at home health agencies for certifying and recertifying patients for home health care and referring them for home health services for which the home health agencies billed and were paid by Medicare. Id. at 6, 7, 8.
On October 7, 2019, a jury found Petitioner guilty of one count of Conspiracy to Commit Health Care Fraud, one count of Conspiracy to Solicit and Receive Healthcare Kickbacks, and two of four counts of False Statements Relating to Healthcare Matters. I.G. Ex. 3; I.G. Ex. 4, at 1.
By Order of Suspension by Operation of Law dated September 8, 2020, a Disciplinary Panel of the Texas Medical Board suspended Petitioner’s medical license, thereby prohibiting Petitioner from practicing medicine in Texas “until authorized to do so by the [Texas Medical] Board.” I.G. Ex. 5, at 1, 2. The Order stated that Petitioner’s medical license was being suspended “on proof” that, “[o]n or around October 7, 2019,” Petitioner was convicted of felony conspiracy to commit health care fraud. Id. at 2.
On November 25, 2020, the District Court entered a judgment of conviction against Petitioner. I.G. Ex. 4, at 1. The District Court sentenced Petitioner to 60 months of imprisonment (id. at 2) and ordered her to pay $9.5 million in restitution to the Medicare program. Id. at 5.
By letter dated February 26, 2021, the I.G. notified Petitioner that she was excluded from participation in Medicare, Medicaid, and all federal health care programs, pursuant to section 1128(a)(1) of the Act, based on her conviction, in accordance with section 1128(i) of the Act, of a criminal offense related to the delivery of an item or service under Medicare or a state health care program,
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the exclusion would take effect 20 days from the date of the exclusion notice. I.G. Ex. 1, at 1. The I.G. also informed Petitioner that the minimum five-year exclusion would be lengthened to 35 years based on “evidence of the following circumstances”:
- The acts resulting in the conviction, or similar acts, that caused, or were intended to cause, a financial loss to a Government program or to one or more entities of $50,000 or more. (The entire amount of financial loss to such programs or entities, including any amounts resulting from similar acts not adjudicated, will be considered regardless of whether full or partial restitution has been made.) The [District Court] ordered [Petitioner] to pay approximately $9.5 million 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 January 2012 to about August 2016.
- The sentence imposed by the [District Court] included incarceration. The [District Court] sentenced [Petitioner] to 60 months of incarceration.
- The individual or entity has been the subject of any other adverse action by any Federal, State, or local government agency or board if the adverse action is based on the same set of circumstances that serves as the basis for the imposition of the exclusion. The Texas Medical Board suspended [Petitioner’s] license.
Id. at 2; see 42 C.F.R. § 1001.102(b)(1), (2), (5), (9).
ALJ Proceedings and Decision
Petitioner timely requested a hearing before an ALJ to contest the I.G.’s 35-year exclusion. ALJ Decision at 2.
Petitioner submitted 11 exhibits (P. Exs. 1-11), which included her own written direct testimony (P. Ex. 9) and that of her attorney (P. Ex. 10),
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ALJ, and, as to Petitioner’s exhibits 2, 3, 7, 9, and 11, that they were also offered to collaterally attack the conviction. ALJ Decision at 3; I.G.’s Reply Br. to ALJ at 2-6; I.G.’s Objections to Petitioner’s Exhibits.
Noting that the I.G. did not ask to cross-examine Petitioner’s witnesses and did not propose any witnesses who would be subject to cross-examination by Petitioner, the ALJ determined that it was not necessary to hold an in-person hearing to receive oral testimony. ALJ Decision at 3. The ALJ therefore proceeded to her decision based on the written record. Id. (citing Civ. Remedies Div. P. § 19(d)).
The ALJ made four findings of fact and conclusions of law. We quote them below.
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- Petitioner was convicted[
In finding that Petitioner was “convicted,” the ALJ cited section 1128(i)(3) of the Act and paragraph (c) under the definition of “Convicted” in section 1001.2 of the regulations, which defines “convicted” consistent with section 1128(i)(3). See ALJ Decision at 5. However, the ALJ quoted the language from section 1128(i)(1) of the Act, which provides that an individual is considered to have been convicted of a criminal offense “when a judgment of conviction has been entered against the individual or entity by a Federal, State, or local court, regardless of whether there is an appeal pending or whether the judgment of conviction or other record relating to the criminal record has been expunged.” See id. The citations are harmless errors. See 42 C.F.R. § 1005.23. The ALJ evidently determined that Petitioner was “convicted” within the meaning of section 1128(i)(1) and paragraph (a) under the definition of “Convicted” in section 1001.2, which defines “convicted” similarly to the language in section 1128(i)(1). ] of a criminal offense related to the delivery of a health care item or service under the Medicare program, which subjects her to a mandatory exclusion from all federal health care programs for a minimum of five years. - Petitioner is not entitled to a stay of the exclusion.
- The IG has identified four aggravating factors that support an exclusion beyond the five-year minimum.
- Based on the four aggravating factors and lack of mitigating factors, I find that the 35-year exclusion imposed by the IG is not unreasonable.
ALJ Decision at 5, 6, 8 (ALJ’s emphases removed). The ALJ concluded, “[T]he IG has proven, by a preponderance of the evidence, that Petitioner was convicted of an offense that requires exclusion under section 1128(a)(1) of the Act.” Id. at 9. The ALJ also concluded that “a 35-year exclusion from participation in Medicare, Medicaid, and all other federal health care programs, effective March 18, 2021, is not unreasonable based on the circumstances of this case.” Id.
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.” 42 C.F.R. § 1005.21(h). The Board reviews a disputed issue of law as to whether the ALJ’s decision “is erroneous.” Id. The term “substantial evidence” means “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consol. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)).
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Analysis
In her brief to the Board (P. Br.),
As we explain in Section I below, we, like the ALJ, conclude that the I.G. established a basis for exclusion under section 1128(a)(1). In Section II, we discuss why we agree with the ALJ that the 35-year exclusion period is reasonable. In Section III, we explain that the applicable authorities do not provide for a stay of the exclusion.
I. The ALJ’s conclusion that Petitioner was convicted of a criminal offense for which she must be excluded for at least five years is supported by substantial evidence and is free of legal error.
The ALJ found and concluded, “Petitioner was convicted of a criminal offense related to the delivery of a health care item or service under the Medicare program, which subjects her to a mandatory exclusion from all federal health care programs for a minimum of five years.” ALJ Decision at 5 (ALJ’s emphases omitted). Quoting this language, Petitioner states that she “does not challenge this conclusion.” See P. Br. at 3. Nevertheless, Petitioner takes exception to the following language in the ALJ’s decision:
Specifically, Petitioner fraudulently certified and recertified patients for home health services by falsely stating in medical documents that the patients were confined to their homes and that they qualified for and received home health services under Medicare when those serv[ic]es were
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not medically necessary, not provided, or both. IG Ex. 2 at 5. Petitioner submitted approximately $2.8 million in false claims to Medicare for certifying and recertifying patients for home health services. IG Ex. 2 at 6. Petitioner’s co-conspirators submitted approximately $13.8 million in false claims to Medicare for home health services submitted by home health agencies where Petitioner was listed as the attending physician. IG Ex. 2 at 6. Petitioner received kickbacks and bribes in exchange for referring Medicare beneficiaries for home health services that were billed to, and paid by, Medicare. IG Ex. 2 at 7.
P. Br. at 2-3 (quoting ALJ Decision at 4). Petitioner asserts that, assuming the ALJ had intended the above language to be a finding of fact, the finding was erroneous because “[t]he only basis for the ‘finding’ is the indictment that alleged these matters.” Id. at 3 (citing I.G. Ex. 2 (indictment)). According to Petitioner, “the [g]overnment did not necessarily prove all of these details when it obtained a conviction,” and she “has challenged the sufficiency of the evidence to support each of the quoted elements of the indictment.” Id. Petitioner, in her appeal of the conviction, disputes that she “conspired with others to sign false and fraudulent plans of care and other medical documents for Medicare beneficiaries and caused the submission and concealment of false and fraudulent claims to Medicare.” Id. (quoting ALJ Decision at 6). Thus, although Petitioner states that she “does not challenge” the ALJ’s “conclusion” (quoted above), she does challenge the ALJ’s fact-finding and rationale underpinning her conclusion and thereby asserts that the exclusion is not lawful because it does not rest on a valid conviction. Also, referring to the brief she filed with the Fifth Circuit (P. Ex. 11), Petitioner says that she submitted the brief to the ALJ “not as a collateral attack on the underlying conviction,” “but to demonstrate that she has challenged the lack of evidence to support her conviction and sentence . . . .” P. Br. at 3 (citing ALJ Decision at 3).
Petitioner’s arguments are unavailing. Despite her insistence to the contrary, Petitioner is collaterally attacking her conviction, which is prohibited by 42 C.F.R. § 1001.2007(d). The purpose of this regulation “is to prevent excluded individuals from relitigating the validity of their convictions.” Joann Fletcher Cash, DAB No. 1725, at 6 (2000) (citing Travers v. Shalala, 20 F.3d 993, 998 (9th Cir. 1994)). The regulation “prohibit[s] . . . any attempt to defend against the exclusion derived from the conviction by denying or minimizing the crime itself.” Mohamad Ahmad Bazzi, DAB No. 2917, at 9 (2018) (citing 42 C.F.R. § 1001.2007(d)). The regulation “recognizes that it is ‘the fact of the conviction which causes the exclusion. The law does not permit the Secretary to look behind the conviction.’” Michael D. Miran, Esta Miran, & Michael D. Miran,
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Ph.D. Psychologist P.C., DAB No. 2469, at 4 (2012) (quoting Peter J. Edmonson, DAB No. 1330, at 4 (1992)); see also Richard E. Bohner, DAB No. 2638, at 14 (2015) (“Petitioner’s attempts to downplay the underlying factual basis of Count 97 . . . in paragraphs 1-93 of Count One of the indictment amount to a prohibited collateral attack on his conviction.”) (citing 42 C.F.R. § 1001.2007(d)), aff’d, Bohner v. Burwell, No. 15-4088, 2016 WL 8716339 (E.D. Pa. Dec. 2, 2016).
A. A qualifying conviction is established.
Despite the pending appeal of Petitioner’s conviction, the fact remains that a jury found Petitioner guilty of one count of Conspiracy to Commit Health Care Fraud, one count of Conspiracy to Solicit and Receive Healthcare Kickbacks, and two of four counts of False Statements Relating to Healthcare Matters. I.G. Ex. 3; I.G. Ex. 4, at 1. On November 25, 2020, the District Court entered a judgment of conviction against Petitioner. I.G. Ex. 4, at 1. Accordingly, Petitioner was “convicted” within the meaning of section 1128(i)(1) of the Act and 42 C.F.R. § 1001.2, and she may not collaterally attack her conviction in this forum.
B. Petitioner’s conviction is related to the delivery of an item or service under Medicare or a state health care program.
A conviction having been established, the crux of our analysis is whether Petitioner’s conviction is related to the delivery of an item or service under Medicare or a state health care program. If it is, there is a lawful basis for excluding Petitioner under section 1128(a)(1) of the Act. “The Board has repeatedly held that the phrase ‘related to’ within the context of section 1128(a)(1) requires only that a common-sense nexus exists between the offense and the delivery of a health care item or service under the state healthcare program.” Summit S. Shah, M.D., DAB No. 2836, at 6 (2017) (citing James O. Boothe, DAB No. 2530, at 3 (2013) and James Randall Benham, DAB No. 2042, at 5 (2006)) (cited in ALJ Decision at 6); see also Scott D. Augustine, DAB No. 2043, at 5-6 (2006) (Based on the plain meaning of “related,” an offense is considered “related to” an item or service under a covered program if there is a common-sense connection between the offense and the delivery of an item or service under the program.) (citing cases). “[T]he test for whether a common-sense nexus exists is ‘based on all relevant facts’ and ‘not merely a narrow examination of the language within the four corners of the final judgment and order of the criminal trial court.’” Shah at 8 (quoting Dewayne Franzen, DAB No. 1165, at 3 (1990)). Accordingly, when determining whether the requisite nexus exists, it is appropriate to consider “evidence as to the nature of an offense,” including the “facts upon which the conviction was predicated.” Shah at 7 (internal quotation marks and citations omitted). Furthermore, where, as here, a petitioner has been found guilty of the offenses as charged, it is proper to consider the factual allegations in the indictment to determine whether the requisite nexus exists. See W. Scott Harkonen, M.D., DAB No. 2485, at 18 (2012) (holding that since the jury found
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petitioner guilty of the offense as alleged in the indictment, the I.G. properly relied on the factual allegations in the indictment in considering whether the offense occurred in connection with the delivery of a health care item for purposes of exclusion under section 1128(a)(3)), aff’d, Harkonen v. Sebelius, No. C 13-0071 PJH, 2013 WL 5734918 (N.D. Cal. Oct. 22, 2013).
The indictment charged that Petitioner fraudulently certified and recertified patients for services when those patients did not qualify for the services or did not need them; signed false and fraudulent medical documents to support the filing of claims for program reimbursement for services for patients who did not qualify for coverage of those services or who did not need those services; and took bribes and kickbacks for falsifying documents to be submitted for program reimbursement. Petitioner was convicted of multiple counts of these offenses. See I.G. Exs. 3 and 4. The filing of a false claim or facilitating the filing of a false claim is considered related to the delivery of an item or service under the program. See Cash, DAB No. 1725, at 3 (“False billing for items or services has been repeatedly held to be an offense related to the delivery of an item or service within the meaning of section 1128(a)(1).”) (citing cases); Olandis Moore, DAB No. 2963, at 5 (2019) (“[F]iling a false claim for payment under Medicaid, or facilitating such a filing, is ‘related to the delivery of an item or service’ under the program because a false claim is a ‘representation’ that the billing health care provider ‘has delivered a covered item or service to a program beneficiary.’”) (quoting Kimbrell Colburn, DAB No. 2683, at 5 (2016)) (cited in ALJ Decision at 6); see also Timothy Wayne Hensley, DAB No. 2044, at 3, 7-15 (2006) (affirming exclusion under section 1128(a)(1) based on a misdemeanor conviction for making a false statement or representation of fact material to determining a right to payment under a federal health care program).
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II. The ALJ’s conclusion that extending Petitioner’s exclusion to 35 years is not unreasonable is supported by substantial evidence and is free of legal error.
The I.G. applied the four aggravating factors in 42 C.F.R. § 1001.102(b)(1), (2), (5), and (9) to extend the required minimum exclusion period of five years to 35 years. I.G. Ex. 1, at 2. An ALJ reviews de novo the duration of an exclusion period longer than the required minimum to determine whether it falls within a reasonable range based on any aggravating and mitigating factors and the circumstances underlying those factors. Sushil Aniruddh Sheth, M.D., DAB No. 2491, at 5 (2012), appeal dismissed in part, summarily affirmed in part, Sheth v. Sebelius, No. 13-cv-00448, 2014 WL 11813597 (D.D.C. Jan. 10, 2014), appeal dismissed, Sheth v. Burwell, No. 14-5179, 2015 WL 3372286 (D.C. Cir. May 7, 2015). 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. Id. (citing cases). An ALJ may not substitute his or her judgment for that of the I.G. or determine a “better” exclusion period than that set by the I.G., who “has ‘broad discretion’ in setting the length of an exclusion in a particular case, based on [the I.G.’s] ‘vast experience’ implementing exclusions.” Id. (quoting Craig Richard Wilder, DAB No. 2416, at 8 (2011), and Paul D. Goldenheim, M.D., et al., DAB No. 2268, at 21 (2009), aff’d sub nom., Friedman v. Sebelius, 755 F. Supp. 2d 98 (D.D.C. 2010), rev’d on other grounds and remanded, 686 F.3d 813 (D.C. Cir. 2012) (for further consideration of length of exclusion), reh’g denied, No. 1:09-cv-02028 (Nov. 29, 2012)) (internal citation and quotation marks omitted); see also 57 Fed. Reg. 3298, 3321 (Jan. 29, 1992) (in the preamble to 42 C.F.R. Part 1001, explaining that the limitation on the ALJ’s authority to review the length of an exclusion is appropriate given the I.G.’s “vast experience in implementing exclusions under these authorities”).
A. The ALJ appropriately afforded substantial weight to the aggravating factor of program loss (42 C.F.R. § 1001.102(b)(1)).
The I.G. may lengthen the mandatory minimum exclusion period if “[t]he acts resulting in the underlying 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[.])” 42 C.F.R. § 1001.102(b)(1).
Based on evidence that the District Court ordered Petitioner to pay $9.5 million in restitution, which the ALJ noted was “190 times the $50,000 threshold” amount, the ALJ determined that the I.G. had “identified” the aggravating factor in section 1001.102(b)(1). ALJ Decision at 7 (citing I.G. Ex. 4, at 5); see also ALJ Decision at 8 (referring to “a
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large amount of restitution”). In response to Petitioner’s arguments that the restitution sought by the government is inaccurate because most of the loss was attributable to the home health care providers, and that the amount of restitution was increased considerably after her second trial (P. Br. to ALJ at 4),
Petitioner informs the Board that she “challenged the sufficiency of the evidence to support each of the quoted elements of the indictment[,]” including, in particular, “the loss calculations on appeal[,]” and that she proved that the loss amounts attributed to her actions were “grossly overstated.” P. Br. at 3 (citing P. Ex. 11, at 65-73). Petitioner also says “[t]he government improperly included every service that [she] provided to the home-health patients, including well-woman exams, colonoscopies, and other testing, without any showing that they were not medically necessary.” Id. at 5 (citing P. Ex. 11, at 24, 68). Petitioner also complains that “the vast majority of the ‘loss’ pinned on [her] was derived from what the home-health care providers received from Medicare as a result of their billings (around $15 million).” Id. (citing P. Ex. 11, at 70-80) (Petitioner’s emphases). According to Petitioner, she was sentenced to 60 months of imprisonment and ordered to pay $9.5 million in restitution “even though she received only $274,000 from Medicare and $376,000 in patient co-pays for office visits related to home-health services over the course of four years,” which was “barely enough to cover her clinic operations.” Id. (citing P. Ex. 11, at 70-80).
We reject Petitioner’s contentions. Petitioner again attempts to collaterally attack the underlying conviction, which she may not do. To the extent Petitioner argues the Board should assign less weight to the aggravating factor in section 1001.102(b)(1), relying on extraneous facts about the criminal proceedings that Petitioner believes resulted in a restitution amount higher than she believes was attributable to her, the argument is to no avail. The ALJ correctly determined that there need be only evidence of financial loss to a government program of a minimum of $50,000 to apply the aggravating factor to lengthen the mandatory minimum exclusion period. Not only is the minimum met in this case, but the restitution ordered is, as the ALJ aptly noted, 190 times the threshold amount. Where, as here, the program loss as evidenced by the restitution amount is considerably larger than the threshold amount, significant weight may be assigned to that amount to determine the reasonableness of the exclusion period. See, e.g., Miran, DAB
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No. 2469, at 5 (stating that restitution amount is considered a reasonable valuation of financial loss incurred by a program); Wilder, DAB No. 2416, at 9 (same); Laura Leyva, DAB No. 2704, at 9-10 (2016) (“[I]t is entirely reasonable to consider a program loss amount substantially larger than” the threshold amount (“over 40 times the threshold amount”) to be “an ‘exceptional aggravating factor’ to be accorded significant weight.”) (quoting Sheth, DAB No. 2491, at 7), aff’d, Leyva v. Price, No. 8:16-CV-1986-T-27AEP, 2017 WL 2880125 (M.D. Fla. Apr. 24, 2017); Hussein Awada, M.D., DAB No. 2788 at 7 (2017) (“The millions of dollars in losses that [p]etitioner’s actions caused . . . merits a substantial increase in the length of his exclusion.”) (citation omitted); Donald Burstein, Ph.D., DAB No. 1865, at 23 (2003) (“[T]he loss to the [Medicaid] program from [petitioner’s] offense was over $1.7 million[,] . . . [which] is over 1,000 times the minimum required [under section 1001.102(b)(1) then in effect] in order for the aggravating factor to apply, and clearly warrants significantly more weight than the ALJ gave it.”).
B. The ALJ appropriately afforded substantial weight to the aggravating factor of commission of criminal acts for one year or more (42 C.F.R. § 1001.102(b)(2)).
The ALJ determined that the I.G. established the aggravating factor in 42 C.F.R. § 1001.102(b)(2). See ALJ Decision at 7 (stating that the I.G. “identified” that “the acts resulting in Petitioner’s conviction, or similar acts, were committed over a period of one year or more”) (citation omitted). The ALJ did so based on evidence that Petitioner was engaged in the health care fraud scheme for which she was convicted “from January 2012 until August 2016.” Id. (citing I.G. Ex. 4, at 2); see also id. at 8 (stating that “Petitioner engaged in fraudulent billing for a four-year period . . .”). Petitioner does not dispute that her criminal conduct lasted from about January 2012 to about August 2016, a period of around four and one-half years. The ALJ correctly determined that the I.G. established the existence of this aggravating factor.
It is also evident the ALJ found this factor significant, as she noted “the duration of the fraudulent activity” in assessing the reasonableness of the extended exclusion period. ALJ Decision at 9. The ALJ noted, too, that Petitioner’s “engage[ment] in fraudulent billing for a four-year period,” together with other considerations, “call[s] into question her trustworthiness.” Id. at 8. We fully agree with the ALJ that the evidence establishing this aggravating factor reflects negatively on Petitioner’s trustworthiness. The length of time Petitioner was involved in the fraud scheme is particularly noteworthy because the purpose of the aggravating factor in section 1001.102(b)(2) “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 of time.” Burstein, DAB No. 1865, at 8. The importance of distinguishing between the two groups of individuals cannot be overstated in light of the remedial purpose of the I.G.’s exclusion authority under section 1128: to protect federal health care programs and the beneficiaries they serve from untrustworthy
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individuals. See, e.g., Susan Malady, R.N., DAB No. 1816, at 9 (2002); Cash, DAB No. 1725, at 10; Robert Kolbusz, M.D., DAB No. 2759, at 6 (2017) (citations omitted).
The Board has determined that similar types of misconduct for periods similar to and in some cases shorter than that in Petitioner’s case evidenced untrustworthiness. See, e.g., Rosa Velia Serrano, DAB No. 2923, at 9 (2019) (stating that involvement in Medicaid fraud for more than four years, for which petitioner was excluded under section 1128(a)(1), is “a protracted period” that shows petitioner “is extremely untrustworthy”), recon. denied, Ruling 2019-2 (April 25, 2019); Leyva, DAB No. 2704, at 10 (stating, regarding an exclusion under section 1128(a)(1), that participation in the fraud scheme for over two years “amply demonstrates more than a short-lived lapse in integrity”). Here, the considerably long duration of Petitioner’s illegal activity raises significant concerns about her trustworthiness. Enhancing the required minimum exclusion period under these circumstances would serve the purpose of protecting the programs from the threat of untrustworthy actors. See Cash, DAB No. 1725, at 15 (stating that aggravating factors, such as the length of time during which the excluded individual committed the acts, “go to assessing the seriousness of the past misdeeds in order to assess the nature of the future threat to the programs or patients,” and, along with any mitigating factors, are used to “evaluat[e] the future trustworthiness of a provider and the nature of any future threat posed by a provider”).
C. The ALJ appropriately afforded substantial weight to the aggravating factor of incarceration (42 C.F.R. § 1001.102(b)(5)).
The ALJ found that “Petitioner was sentenced to 60 months of incarceration” and thus concluded that the I.G. proved the existence of the aggravating factor in 42 C.F.R. § 1001.102(b)(5). ALJ Decision at 7 (citing I.G. Ex. 4, at 2). The ALJ acknowledged Petitioner’s argument that, because the U.S. District Judge permitted her to delay reporting for incarceration pending the appeal of her conviction, the I.G. accordingly should delay using her sentence to incarceration as an aggravating factor. See ALJ Decision at 7 (citing P. Br. to ALJ at 3). The ALJ noted, however, that “the delay in reporting for incarceration does not negate the sentence, nor does it prevent the IG from using it as an aggravating factor.” ALJ Decision at 7. The ALJ also noted that Petitioner’s “actions call into question her trustworthiness.” Id. at 8.
Petitioner states that the U.S. District Judge allowed her “to remain free on bond during the appeal over the government’s strenuous objection.” P. Br. at 4. “[T]o grant this relief,” Petitioner says, the Judge “had to find that [she] presented serious and meritorious legal challenges to her conviction and sentence on appeal that are likely to result in a reversal, new trial, or modification of her sentence.” Id. at 4-5 (citing P. Exs. 5 (Petitioner’s “Motion to Stay Surrender Date Pending Appeal”) and 6 (U.S. District Judge’s “Order on [Petitioner’s] Motion for Relief as to Restitution Order”)). Petitioner adds that the Judge “granted this relief within a few days of filing the motion to stay
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surrender, and without waiting for the government’s response.” P. Br. at 5. Petitioner also states that she “challenged her five-year sentence on multiple grounds, demonstrating that absent the erroneous enhancements, the [United States Sentencing Commission] Guidelines would have produced an offense level of 24 with an imprisonment range of 51-63 months[
Petitioner thus repeats much of what she wrote in page 3 of her brief to the ALJ, but does not actually assert that the ALJ erred in finding that she was sentenced to incarceration for 60 months, or in stating that the U.S. District Judge’s actions neither “negate the sentence” nor “prevent the IG from using it as an aggravating factor.” ALJ Decision at 7. Petitioner thus does not comply with 42 C.F.R. § 1005.21(c), which provides that a brief in support of an appeal to the Board review must “specify[ ] exceptions to” the ALJ’s decision and the “reasons for supporting the exceptions.” In any event, regardless of the status of Petitioner’s appeal of her conviction and the U.S. District Judge’s determination to allow Petitioner to remain free on bond pending the appeal, it is undisputed that “[t]he sentence imposed by the court included incarceration.” 42 C.F.R. § 1001.102(b)(5). Accordingly, as the ALJ correctly determined, the aggravating factor is established.
The Board has stated that periods of incarceration shorter or in some cases significantly shorter than that imposed on Petitioner, were substantial and supported lengthening the exclusion period. See, e.g., Edwin L. Fuentes, DAB No. 2988, at 12 (2020) (characterizing 24-month incarceration as “a substantial term”), aff’d, No. 4:20-cv-00026, 2021 WL 4341115, at *9 (W.D. Va. Sept. 23, 2021); Jeremy Robinson, DAB No. 1905, at 12 (2004) (stating that an incarceration term of one year and a day in concert with other factors supports “sufficient” “weight”); Jason Hollady, M.D., a/k/a Jason Lynn Hollady, DAB No. 1855, at 12 (2002) (characterizing a nine-month incarceration that included a period of work release as “more than a token incarceration and, in that sense, relatively substantial”); Stacy Ann Battle, D.D.S., and Stacy Ann Battle, D.D.S., P.C., DAB No. 1843, at 7 (2002) (stating that placement in a halfway house constituted incarceration, and that four months in a halfway house, followed by four months of home confinement, justified lengthening the exclusion period); Spyros N. Panos, M.D., DAB No. 2709, at 12 (2016) (stating that incarceration for 54 months is “unquestionably a significant period”); Gracia L. Mayard, M.D., DAB No. 2767, at 8 (2017) (describing a 54-month incarceration term as a “substantial” one); Raymond Lamont Shoemaker, DAB No. 2560, at 8 (2014) (agreeing with the ALJ that a 55-month prison term is substantial); Angelo D. Calabrese, M.D., DAB No. 2744, at 7 (2016) (stating that a 37-month incarceration term was “a substantial amount of time considering that incarceration of any length would constitute an aggravating factor under section 1001.102(b)(5)”).
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The Board has recognized that an incarceration term may be viewed as a “reasonable proxy . . . for untrustworthiness in the context of deciding how much weight to give the aggravating factor for incarceration.” Eugene Goldman, M.D., a/k/a Yevgeniy Goldman, M.D., DAB No. 2635, at 5 (2015). Thus, a substantial term of incarceration, as is the 60-month term evidenced here, may be viewed as “an unmistakable reflection of the [court’s] assessment of [a] [p]etitioner’s untrustworthiness.” Shoemaker, DAB No. 2560, at 8 (citation and internal quotation marks omitted). We agree with the ALJ that the undisputed fact of Petitioner’s 60-month incarceration term constitutes an exceptional aggravating factor that supports lengthening the required minimum exclusion period. See ALJ Decision at 8. As the Board concluded in Dr. Frank R. Pennington, M.D., DAB No. 1786, at 8 (2001), aff’d, Pennington v. Thompson, 249 F. Supp. 2d 931 (W.D. Tenn. 2003), “The ALJ did not err in considering the fact and length of the incarceration as an appropriate measure of the relative severity of the offense.” That conclusion is equally apt here. We agree with the ALJ’s assessment of the incarceration term imposed on Petitioner.
D. The ALJ appropriately considered the aggravating factor of the suspension of Petitioner’s medical license based on her conviction (42 C.F.R. § 1001.102(b)(9)).
The I.G. may apply the aggravating factor in 42 C.F.R. § 1001.102(b)(9) to lengthen the mandatory minimum exclusion period when, as here, the excluded individual “has been the subject of any other adverse action” that “is based on the same set of circumstances that serves as the basis for the imposition of the exclusion.” Kimberly Jones, DAB No. 3033, at 13 (2021) (quoting section 1001.102(b)(9)) (internal quotation marks omitted).
Based on evidence that the Texas Medical Board had suspended Petitioner’s medical license (I.G. Ex. 5), the ALJ determined that the aggravating factor in section 1001.102(b)(9) had been established. ALJ Decision at 7-8.
Petitioner raises no specific argument challenging the ALJ’s analysis of this aggravating factor, and we see no reason to disturb it. The I.G. established the existence of this
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aggravating factor and thus properly applied it to lengthen the exclusion period because the suspension of Petitioner’s medical license is an “adverse action beyond the criminal conviction” that serves as “additional evidence of the seriousness” of the conviction supporting the exclusion. Narendra M. Patel, M.D., DAB No. 1736, at 29 (2000), aff’d, 319 F.3d 1317 (11th Cir. 2003), cert. denied, 539 U.S. 959 (2003).
E. The ALJ correctly determined that no cognizable mitigating factor existed.
If, as here, the I.G. extends an exclusion period based on the application of one or more aggravating factors, the I.G. may then consider any one or more of the three mitigating factors in 42 C.F.R. § 1001.102(c) for purposes of reducing the exclusion period to no less than the mandatory minimum five years.
Before the ALJ, Petitioner acknowledged that no section 1001.102(c) mitigating factor existed. See ALJ Decision at 8 (citing P. Br. to ALJ at 6). Petitioner nevertheless urged the ALJ to shorten the exclusion period, “proffer[ing] a host of reasons why additional circumstances should be considered in lieu of mitigating factors [in the regulation], including her pending appeal before the Fifth Circuit, the District Court’s decision to stay her incarceration, the pending proceeding before the Texas Medical Board to probate the suspension of Petitioner’s medical license, and the need for Petitioner’s services.” ALJ Decision at 8 (citing P. Br. to ALJ at 6). The ALJ determined that Petitioner had not established any section 1001.102(c) mitigating factor. ALJ Decision at 7 (“The parties did not identify any mitigating factors.”); see also id. at 8. Petitioner does not now assert that the ALJ erred as to that determination, with which we agree.
Petitioner instead attempts to reprise earlier arguments to support a plea for a reduced exclusion period. Petitioner states that she was not accused of, much less charged with, any misconduct or of providing substandard patient care, and she argues there is no evidence that she caused her patients “economic or other harm.” P. Br. at 1. Referring to the criminal proceedings, Petitioner maintains that “the trial record” shows that “patient witnesses uniformly testified that [she] was a very professional doctor who addressed their health concerns and they didn’t believe she would do anything that was not in the best interests of their health.” Id. at 1-2 (citing P. Ex. 2, at 36, 87). Petitioner adds that the U.S. District Judge who had presided over the criminal proceedings indicated that he could “well imagine” Petitioner “is a very competent and comforting doctor” and commented that she appeared less culpable than other similarly situated defendants. P. Br. at 2 (quoting P. Ex. 3, at 23 and citing P. Ex. 2, at 118).
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Petitioner’s arguments that her patients thought well of her and that she is a good physician are to no avail. “[G]eneral ‘trustworthiness’” is not “an independent basis, i.e., independent from the specified aggravating and mitigating factors, for determining whether the period of an exclusion is unreasonable.” See Mohamed Basel Aswad, M.D., DAB No. 2741, at 11 (2016), aff’d, Aswad v. Hargan, No. 2:16-cv-1367-BRB-SMV, 2018 WL 704370 (D.N.M. Feb. 2, 2018). The Board also has rejected arguments that considerations such as a physician’s qualifications, skill or ability as a physician, standing in the medical community, or reputation among patients ought to be considered for mitigation purposes. See Goldman, DAB No. 2635, at 10. Similarly, the Board has rejected arguments that character references ought to be considered as relevant evidence since the regulations do not recognize character as a mitigating factor. See Leyva, DAB No. 2704, at 9 (citations omitted); Baldwin Ihenacho, DAB No. 2667, at 8 (2015).
As for Petitioner’s claim that that she caused no “economic or other harm” to her patients, we find that claim specious. Petitioner presumably means that she did not steal from individual patients directly or physically, nor mentally or physically harmed them in the course of providing them medical care. But Petitioner’s argument disregards that, by illegally diverting or causing to be diverted program resources through her participation in the fraudulent documentation and billing scheme, Petitioner (and her co-conspirators) deprived the beneficiary population of the benefit of those resources. We fully agree with the ALJ that Petitioner’s “defrauding health care programs meant to assist patients” “not only threatened the fiscal integrity of the Medicare and Medicaid programs, but also harmed Medicare and Medicaid beneficiaries by wasting resources that could otherwise be used to provide beneficiaries with needed services.” ALJ Decision at 8 (citing Robert Hadley Gross, DAB No. 2807, at 5 (2017), appeal pending, No. 17-1801 (D.D.C. Sept. 22, 2017)).
As we noted, Petitioner does not assert that any mitigating factor in section 1001.102(c) exists. Nevertheless, a brief discussion of the mitigating factor in section 1001.102(c)(2) is in order in light of Petitioner’s reliance on the U.S. District Judge’s comments that she appeared less culpable than other defendants prosecuted for similar offenses. For the mitigating factor to apply, “[t]he record in the criminal proceedings, including sentencing documents, [must] demonstrate[ ] that the court determined that the individual had a mental, emotional or physical condition before or during the commission of the offense
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that reduced the individual’s culpability[.]” 42 C.F.R. § 1001.102(c)(2). The excluded individual bears the burden of establishing this mitigating factor. See Bazzi, DAB No. 2917, at 10-11. While the sentencing court need not make explicit findings that a mental, emotional, or physical condition existed at the time of the offense that reduced culpability, we “must nevertheless be able to infer clearly from the evidence of the [criminal] proceedings that the sentencing court made the requisite determination.” Id. at 11 (citing Russell Mark Posner, DAB No. 2033, at 9 (2006)). We can draw no such inference in this case.
F. The ALJ’s conclusion that excluding Petitioner for 35 years is not unreasonable based on the existence of four aggravating factors and in the absence of any mitigating factor is supported by substantial evidence and is free of legal error.
Noting the existence of four aggravating factors and the absence of any mitigating factor in section 1001.102(c), the ALJ determined that Petitioner’s 35-year exclusion is not unreasonable. See ALJ Decision at 8-9. The ALJ noted in particular Petitioner’s “engage[ment] in fraudulent billing for a four-year period [which] caus[ed] $9.5 million in damages to government health care programs” in assessing the reasonableness of the exclusion period. Id. at 8.
The ALJ rejected Petitioner’s argument that her 35-year exclusion is unreasonably long in light of the good care Petitioner says she provided her patients and in light of the U.S. District Judge’s observation that she appeared less culpable than others similarly situated and his decision to allow her to delay reporting for the incarceration. ALJ Decision at 8 (citing P. Br. to ALJ at 6 and P. Ex. 2, at 24-25). The ALJ wrote, “Petitioner ignores the fact that her actions call into question her trustworthiness and that she caused harm by defrauding federal health care programs meant to assist patients. Petitioner’s actions not only threatened the fiscal integrity of the Medicare and Medicaid programs, but also harmed Medicare and Medicaid beneficiaries by wasting resources that could otherwise be used to provide beneficiaries with needed services.” ALJ Decision at 8. Further, the ALJ noted that other exclusion cases Petitioner cited as support for a shorter exclusion in her case were “not analogous to Petitioner’s case,” because in those cases “the exclusion was based upon lesser periods of incarceration, smaller amounts of damages, and different aggravating factors.” Id. The ALJ also observed that Petitioner, in service of her argument that “she never put her patients at risk and should therefore receive a lesser exclusion,” appeared to have cited cases that involved situations in which “medical professionals compromised patient care.” Id.
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Petitioner asserts the I.G. and the ALJ did not adequately explain how the aggravating factors supported a 35-year exclusion. P. Br. at 6, 7. According to Petitioner, that period “is not tied to any particular factors, much less objective or measurable criteria.” Id. at 6. Petitioner complains that the ALJ gave “short shrift” to the five exclusion decisions she cited in support of her argument that, in contrast to those petitioners, she did not put her patients at harm and gave them highly competent and compassionate care. Id. at 6-7 (citing P. Br. to ALJ at 4-6; P. Ex. 2, at 36, 87; P. Ex. 3, at 23).
The assessment of aggravating and mitigating factors is case-specific. “Every case involves a complex interaction of diverse circumstances and regulatory factors with varying weights. For this very reason case comparisons, while sometimes informative for the ALJ’s or the Board’s decision-making in a given case, are of limited value and ultimately are not dispositive on the question of reasonableness of an exclusion period in a given case.” Goldman, DAB No. 2635, at 11 (citing Sheth, DAB No. 2491, at 6). Nevertheless, we have examined the five decisions Petitioner cited in support of her argument that other petitioners who were comparably more culpable were excluded for shorter periods. See P. Br. to ALJ at 5-6. The five decisions are:
Anthony Joseph Moschetto, D.O., DAB No. 3030 (2021) – Dr. Moschetto was excluded under section 1128(a)(4) of the Act based on a felony conviction related to the unlawful prescription of a controlled substance. The required minimum five-year exclusion was lengthened to 15 years based on three aggravating factors – a sentence of five years of incarceration; additional convictions for arson, criminal possession of a dangerous weapon, and conspiracy to commit assault on another person (see 42 C.F.R. § 1001.102(b)(8)); and the doctor’s voluntary surrender of his New York medical license and subsequent exclusion from the New York Medicaid program. No mitigating factor was established.
Nicholas John Capos, Jr., M.D., DAB CR5255 (2019) – Dr. Capos, a cardiologist, was excluded under section 1128(a)(4) based on his felony conviction, by guilty plea, of a criminal offense related to the prescription of controlled substances, including oxycodone, hydrocodone, OxyContin, and methadone, without medical justification, to individuals who were willing to pay him $100 per prescription. Three aggravating factors – writing unlawful prescriptions for almost two years; a sentence of incarceration of 52 months; and the doctor’s surrender of his California medical license upon the Medical Board of California’s initiation of proceedings to revoke or suspend his license based on the offense – were applied to lengthen the mandatory minimum five-year exclusion period to 13 years. No mitigating factor was shown.
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Guillermo Tirado-Menendez, M.D., DAB CR5634 (2020) – Dr. Tirado-Menendez, an internal medicine physician, was also excluded under section 1128(a)(4). He pleaded guilty to one count of conspiracy to manufacture, distribute and dispense and to possess with intent to distribute and dispense a controlled substance, and one count of possession with intent to dispense a controlled substance outside the scope of professional practice and not for a legitimate medical purpose. He was excluded for 10 years, five of which were added to the required minimum in consideration of two aggravating factors – his involvement in the illegal conduct for over eight years and his sentence of incarceration for 24 months – and in the absence of any mitigating factor.
Elena L. Polukhin, M.D., Ph.D., DAB CR5216 (2018) – Dr. Polukhin was excluded under section 1128(a)(1) based on a felony conviction, by guilty plea, of defrauding Medicare and Medicaid. She pleaded guilty to felony aiding and abetting in the soliciting and receiving of kickbacks. As part of her plea agreement, Dr. Polukhin agreed that she knowingly sought and received kickbacks from a pharmacy in exchange for writing prescriptions for Medicare and Medicaid beneficiaries to be filled by the pharmacy, knowing that Medicare and Medicaid would pay, in whole or in part, for the prescriptions the pharmacy would fill. She was excluded for 10 years, with five of those years added to the required minimum based on program loss of over $420,000, her involvement in the scheme for almost two years, and the 18-month incarceration term. No mitigating factor was established.
Jennifer Franklin, M.D., DAB CR5512 (2020) – Dr. Franklin was excluded under section 1128(a)(4). She was convicted of writing illegitimate prescriptions for controlled substances, including oxycodone, without medical justification, and received $100 for every patient for whom she wrote the prescriptions. The mandatory five-year exclusion period was expanded to 10 years based on three aggravating factors: the acts that resulted in the conviction were committed for 17 months; she was sentenced to 33 months of incarceration; and the Michigan Bureau of Professional Licensing revoked her medical license and the Michigan Department of Health and Human services terminated her Medicaid provider agreement. No mitigating factor was shown.
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All five cases
We therefore find the five exemplar cases distinguishable from Petitioner’s case in numerous meaningful ways such that they offer little support to Petitioner’s argument that a 35-year exclusion imposed on Petitioner is unreasonable. Petitioner attempts to rely on five exemplar decisions to persuade the ALJ and the Board, yet she has not identified any decisions sharing commonalities with her case (e.g., exclusion under section 1128(a)(1), for conviction of program-related crimes, and similar aggravating circumstances with comparable degrees of significance, such as similar loss amounts) that lend persuasiveness to her argument that the 35-year exclusion imposed on her is disproportionately lengthy.
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Petitioner also notes that the exclusion period is seven times longer than both her five-year incarceration term and the mandatory minimum exclusion period. See P. Br. at 1, 6; P. Br. to ALJ at 4. Petitioner suggests that the exclusion term ought to be similar to or correlate with the incarceration term imposed for the conviction on which her exclusion is based. She implies that an exclusion period that does not correlate with the incarceration term or that is multiple times the mandatory minimum exclusion period is indicative of an unreasonable lengthening of the minimum exclusion period.
Petitioner offers no authority that supports her suggestion. Petitioner’s argument also disregards important considerations. Exclusion proceedings are distinguishable from criminal proceedings in that the exclusion is not intended to punish the excluded individual for committing a crime, but to protect federal health care programs from untrustworthy providers and suppliers. See Burstein, DAB No. 1865, at 12 (“It is well-established that section 1128 exclusions are remedial in nature, rather than punitive, and are intended to protect federally-funded health care programs from untrustworthy individuals.”) (citations omitted); Fuentes, DAB No. 2988, at 14 (stating that the exclusion’s purpose is “not to punish the wrongdoer”) (citation omitted); Rehab. Ctr. at Hollywood Hills, LLC, DAB No. 3001, at 15 (2020) (collecting cases), appeal dismissed, No. 0:20-cv-61357 (S.D. Fla. May 24, 2021). And, although the I.G. may base a lengthened exclusion period in part on the incarceration period (if, as here, the aggravating factor in section 1001.102(b)(5) is applied), the two periods are not determined based on the same considerations. The I.G. determines the length of an exclusion on a qualitative assessment of the circumstances of the case consistent with exclusion law; the I.G. does not rely on the same considerations a sentencing judge would rely on to determine an appropriate incarceration term, such as the sentencing guidelines to which Petitioner refers. See P. Br. at 5.
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law and regulations.” Salman Ali, DPT and Roohi Ali, DPT, DAB No. 3048, at 16 (2021) (rejecting petitioners’ argument that “credit” is due for the time during which they did not participate in federal health care programs in compliance with a court order in the criminal proceedings before the I.G. excluded them), appeal docketed, No. 2:21-CV-12365 (E.D. Mich. Oct. 17, 2021).
Petitioner also states that, were she required to serve her full five-year prison term, she “will have more than paid her debt to society” and should be allowed to resume practicing medicine after her license is reinstated. P. Br. at 6. Petitioner says that, even assuming reinstatement of her medical license, the “unnecessarily lengthy exclusion has wide-sweeping consequences that will destroy any realistic chance” she might have to obtain gainful employment or even a volunteer position in health care. Id. To the extent these statements may be construed as an appeal for the reduction of the exclusion period based on equity reasons, we have no authority to give Petitioner equitable relief. See Matthew J. Girardy, DMD, DAB No. 2987, at 7 (2020) (“To the extent Petitioner’s request for reduction of the exclusion period may be construed as a request for equitable relief, the Board is bound to follow the exclusion authorities and cannot sit in equity.”) (citation omitted); Rita Patel, DAB No. 2884, at 7 (2018) (The Board “does not have the power to decline to apply a regulation based on equity alone . . . .”) (citation omitted), appeal dismissed, Patel v. Sec’y of United States Dep’t of Health & Human Servs., No. 2:19-cv-08925 (D.N.J. Mar. 3, 2020)).
The circumstances of this case, in particular the lengthy duration of Petitioner’s crimes and incarceration term, coupled with the significant amount of program loss, indicate that Petitioner is a highly untrustworthy individual who undermined the public’s faith and confidence in federal health care programs. We agree with the ALJ that a 35-year exclusion is reasonable.
III. The ALJ correctly determined that Petitioner was not entitled to a stay of the exclusion.
Below, Petitioner argued that the ALJ should not immediately impose her exclusion because she had appealed her conviction. ALJ Decision at 6 (citing P. Br. to ALJ at 1-2 and P. Ex. 11). The ALJ found and concluded that “Petitioner is not entitled to a stay of the exclusion.” ALJ Decision at 6 (emphases omitted). The ALJ noted that an individual is considered “convicted” “when a judgment of conviction has been entered against the individual or entity by a Federal, State, or local court, regardless of whether there is an appeal pending.” Id. (quoting Act § 1128(i) and citing 42 C.F.R. § 1001.2) (internal quotation marks omitted). The ALJ also noted that if Petitioner succeeds in getting her conviction reversed or vacated, the I.G.’s exclusion will be withdrawn and Petitioner will be reinstated to federal health care programs retroactive to the effective date of the exclusion. ALJ Decision at 6 (citing 42 C.F.R. § 1001.3005(a)(1)). The ALJ wrote,
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“Until then, Petitioner is not entitled to defer her exclusion pending the outcome of an appeal.” ALJ Decision at 6 (citing Serrano, DAB No. 2923, at 8).
The ALJ correctly relied on the fact of Petitioner’s conviction to uphold the exclusion and correctly determined that the applicable exclusion regulations do not allow for a stay of her exclusion. See James Brian Joyner, M.D., DAB No. 2902, at 7-8 (2018) (rejecting argument that there was no qualifying conviction to support the exclusion because the conviction was not final pending the outcome of his appeal of the conviction, and concluding the ALJ did not err in denying motion to stay the exclusion pending the outcome of the appeal); Serrano, DAB No. 2923, at 8 (rejecting argument that the ALJ erred in affirming petitioner’s exclusion because she had appealed her conviction, and holding petitioner was not entitled to a reversal or stay of her exclusion while the appeal of her conviction was pending) (citations omitted). In accordance with section 1001.3005(a)(1), an excluded individual will be reinstated to federal health care programs retroactive to the effective date of exclusion if the exclusion was based on a conviction that is later reversed or vacated. The Board has stated that “there would be no need for” section 1001.3005(a)(1) if an “exclusion could be stayed pending a federal court appeal.” Emannuel Adebayo Ayodele, DAB No. 2602, at 5 (2014) (citing Miran, DAB No. 2469, at 4-5). Consequently, Petitioner is not entitled to a stay of her exclusion.
Petitioner’s request for a stay of the exclusion also disregards authorities that require an exclusion to take effect 20 days from the date of the I.G.’s exclusion notice. See Act § 1128(c)(1) (stating that an exclusion under section 1128 “shall be effective at such time and upon such reasonable notice . . . as may be specified in regulations . . .”); 42 C.F.R. § 1001.2002(b) (“The exclusion will be effective 20 days from the date of the notice.”). As the ALJ stated, Petitioner’s exclusion took effect on March 18, 2021, 20 days after the I.G.’s February 26, 2021 exclusion notice. ALJ Decision at 6 (citing I.G. Ex. 1, at 1).
Petitioner does not raise any specific challenge to the ALJ’s analysis but complains that the ALJ did not address her argument in support of a stay. P. Br. at 4. Petitioner asserts, as she did before the ALJ (see P. Br. to ALJ at 2-3), that a stay or “deferral” of an exclusion is possible through a “process” in the Medicare Provider Integrity Manual (MPIM), CMS Pub. 100-08,
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(ALA).” P. Br. at 4. According to Petitioner, Transmittal 718, “which is the HHS guidance for provider reporting and HHS’ CMS reviews for participation in Medicare under 42 CFR 424.516 and 42 C.F.R. 424.535[,]”
Petitioner misreads Transmittal 718. Transmittal 718 does not provide a process under which Petitioner may be allowed to continue participating in and billing Medicare notwithstanding her exclusion from federal health care programs. The stated purpose of Transmittal 718 is “to update chapter 15 of [MPIM] to include information and resources to assist [CMS’s] Medicare Administrative Contractors (MACs) in reviewing final adverse actions while processing provider enrollment applications.” Transmittal 718 at PDF page 1. The revisions to chapter 15 of the MPIM via Transmittal 718 provide MACs guidance on how to process applications under multiple scenarios (to include initial enrollment, revalidation of enrollment, and applications to change enrollment information) where the provider or supplier in question has one or more adverse legal actions, or “ALAs,” such as “Federal Health Care programs exclusions/debarments.”
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On the contrary, PDF page 19 of the Transmittal instructs contractors to “[d]eny” an initial or reactivation application under 42 C.F.R. § 424.530 provisions if the “[p]rovider or someone with ownership interest and/or managing control has an active HHS and/or OIG exclusion,” whether or not the provider reported a “current exclusion.” Using similar language, Transmittal 718 instructs contractors to revoke billing privileges under 42 C.F.R. § 424.535 where the provider in question is under a current, active exclusion, regardless of whether the provider had reported that exclusion. See id. at PDF page 26. Thus, the Transmittal can hardly be read to support the idea that an I.G. exclusion based on a felony conviction may be referred to CMS for a stay of the exclusion to permit the excluded individual to continue participating in and billing Medicare.
Importantly, Petitioner’s argument disregards that CMS’s manual provisions are not statutes or regulations. See Judith E. Wessely, CNS, DAB No. 2909, at 9 (2018) (“Unlike the Medicare statute and regulations, . . . CMS’s instructions to contractors [in the Medicare Benefit Policy Manual, CMS Pub. 100-02] do not have the force and effect of law and are not binding on [ALJs or] the Board.”) (citations and internal quotation marks omitted); see also BGI Retirement, LLC, d/b/a Crossbreeze Care Ctr., DAB No. 2620, at 10 (2015) (stating that “CMS manuals, instructions, or policy ‘guidance’ do not have the force of law”) (collecting cases). Even assuming that any sub-regulatory guidance (such as CMS manual provisions) contemplates a “process” for possible stay of an I.G. exclusion based on a felony conviction, Petitioner does not address how such a “process” would be consonant with federal law (section 1128) and implementing regulations discussed earlier, which require Petitioner’s exclusion from all federal health care programs for a mandatory minimum five years, effective 20 days from the date of the exclusion notice, and which would permit Petitioner to be reinstated to federal health care programs retroactive to the effective date of the exclusion if Petitioner successfully gets her conviction reversed or vacated. Any such process set out in sub-regulatory guidance could not supplant the exclusion law and regulations that we must follow. See 42 C.F.R. §§ 1005.4(c)(1) (stating that the ALJ has no authority to “[f]ind invalid or refuse to follow Federal statutes or regulations or secretarial delegations of authority”); 1005.4(c)(4) (stating that an ALJ cannot “[e]njoin any act of the Secretary”); Ethan Edwin Bickelhaupt, M.D., DAB No. 2480, at 3 (2012) (“[t]he limitations on the ALJ’s authority in section[s] 1005.4(c)(1) and (4) also apply to the Board in its review of the ALJ [d]ecision”) (citations omitted); see also Conn. Dep’t of Soc. Servs., DAB No. 1982, at 20 (2005) (Because a manual “does not have the legal authority of the statute and regulations, its instructions must give way to the statute and regulations to the extent of any conflict.”). In any case, as we have explained, the Transmittal provisions may be read as congruent with the exclusion law and regulations in that they instruct contractors to take appropriate action in accordance with enrollment and revocation regulations to preclude individuals who have been excluded by the I.G. from billing Medicare.
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Conclusion
The Board affirms the ALJ Decision.
/s/
Christopher S. Randolph Board Member
/s/
Constance B. Tobias Board Member
/s/
Susan S. Yim Presiding Board Member