Alieu Drammeh, DAB No. 3107 (2023)

DETERMINATION TO DECLINE REVIEW OF ADMINISTRATIVE LAW JUDGE DECISION

On May 22, 2023, Alieu Drammeh (Petitioner) appealed the administrative law judge’s decision in Alieu Drammeh, DAB CR6275 (2023) (ALJ Decision).  Upon reviewing the record underlying the ALJ Decision, we have determined that we need not render a separate decision.

The ALJ reviewed a determination by the Inspector General (I.G.) to exclude Petitioner from all federal health care programs for six years.  The I.G. took that action under section 1128(b)(1) of the Social Security Act.  Section 1128(b)(1) permits the I.G. to exclude an individual who has been convicted of a misdemeanor offense “relating to fraud, theft, embezzlement, breach of fiduciary responsibility, or other financial misconduct . . . in connection with the delivery of any health care item or service.”  The ALJ found that Petitioner was convicted in 2022 in a United States District Court of a misdemeanor offense meeting those conditions, and that Petitioner was therefore subject to exclusion under section 1128(b)(1).  ALJ Decision at 3-8.

Having found that Petitioner’s conviction met the statutory conditions for exclusion, the ALJ next considered whether the length of the exclusion imposed by the I.G. was reasonable.  A section 1128(b)(1) exclusion must be for a period of three years, unless one or more “aggravating or mitigating factors listed in [42 C.F.R. § 1001.201(b)(2) and (b)(3)] form a basis for lengthening or shortening that period.”  42 C.F.R. § 1001.201(b)(1).  The ALJ found the presence of four aggravating factors and no mitigating factors.  ALJ Decision at 8-12.  The ALJ noted that Petitioner, in an April 8, 2023 brief, had “self-identifie[d]” a history of treatment for mental disorders stemming from childhood trauma.  Id. at 12.  Under the I.G.’s regulations, an individual’s mental condition constitutes a mitigating factor only if the court in which the individual was convicted determined that the condition:  (1) existed “before or during the commission of the offense”; and (2) “reduced the individual’s culpability.”  42 C.F.R. § 1001.201(b)(3)(ii).  The ALJ found that Petitioner had not alleged or presented evidence that the District Court made such findings.  ALJ Decision at 12.  The ALJ

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concluded that a six-year exclusion was “not unreasonable” given the established aggravating factors and the absence of any mitigating factor.  Id. at 1, 9, 11.

Petitioner’s notice of appeal does not challenge any of the ALJ’s key findings and conclusions.  Petitioner does not dispute the I.G.’s authority to impose an exclusion under section 1128(b)(1) due to the 2022 federal misdemeanor conviction.  Nor does Petitioner contend that the ALJ improperly found four aggravating factors.  In addition, Petitioner does not claim that the ALJ should have found and applied a mitigating factor to reduce the six-year exclusion imposed by the I.G.  Although Petitioner alludes to allegations of childhood trauma and a history of mental health treatment, Petitioner does not assert this constitutes a mental condition that qualifies as a mitigating factor under section 1001.201(b)(3)(ii), or dispute the ALJ’s finding that Petitioner had not alleged or demonstrated the factor’s existence.  Finally, Petitioner does not argue that a six-year exclusion is unreasonable based on the established aggravating factors.

In short, Petitioner has alleged no error by the ALJ in upholding Petitioner’s exclusion.  Accordingly, pursuant to 42 C.F.R. § 1005.21(g), we decline review of and summarily affirm the ALJ Decision.