Samirkumar Shah, M.D., DAB No. 3111 (2023)

FINAL DECISION ON REVIEW OF ADMINISTRATIVE LAW JUDGE DECISION

Samirkumar Shah, M.D. (Petitioner) appeals the May 23, 2023 decision of an Administrative Law Judge (ALJ) that upheld, on summary judgment, the determination of the Inspector General (I.G.) to exclude Petitioner from participation in Medicare, Medicaid, and all other federal health care programs under sections 1128(a)(1) and 1128(a)(3) of the Social Security Act (Act), based on a conviction of felony health care fraud.  Samirkumar Shah, M.D., DAB CR6291 (2023) (ALJ Decision).  The ALJ also concluded that excluding Petitioner for 27 years – 22 years longer than the mandatory minimum of five years – was reasonable based on undisputed evidence of three aggravating factors and the absence of any cognizable mitigating factor. 

We conclude, on de novo review, that summary judgment for the I.G. is appropriate.  The undisputed facts establish a basis for mandatory exclusion under sections 1128(a)(1) and 1128(a)(3) of the Act and three aggravating factors that support an exclusion period longer than five years.  Petitioner disputed below, and disputes before the Board, only the reasonableness of the 27-year exclusion period; however, Petitioner did not identify, and still does not identify, a cognizable mitigating factor that could support a reduction or offsetting of the effect of three significant aggravating factors.  Having considered Petitioner’s arguments for a shorter exclusion period, we, like the ALJ, conclude that the 27-year exclusion period is not unreasonable, and affirm the ALJ Decision. 

Legal Background

Under section 1128(a)(1) of the Act, the Secretary of Health and Human Services (Secretary) must exclude from participation in any federal health care program (as defined in section 1128B(f) of the Act) an individual who has been convicted of a criminal offense related to the delivery of an item or service under Medicare or a state health care program.  See also 42 C.F.R. § 1001.101(a).  

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Under section 1128(a)(3) of the Act, the Secretary also must exclude – 

[a]ny individual . . . [who] has been convicted for an offense which occurred after [August 21, 1996], under Federal . . . law, in connection with the delivery of a health care item or service or with respect to any act or omission in a health care program (other than those specifically described in [section 1128(a)(1)]) operated by or financed in whole or in part by any Federal, State, or local government agency, of a criminal offense consisting of a felony relating to fraud, theft, embezzlement, breach of fiduciary responsibility, or other financial misconduct. 

Act § 1128(a)(3); accord 42 C.F.R. § 1001.101(c).

An individual is “convicted” of a criminal offense “when a judgment of conviction has been entered against the individual . . . by a Federal . . . 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” or “when there has been a finding of guilt against the individual . . . by a Federal . . . court[.]”  Act § 1128(i)(1), (i)(2); see also 42 C.F.R. § 1001.2 (paragraphs (a) and (b) under the definition of “Convicted”). 

The Secretary has delegated the exclusion authority in section 1128 to the I.G.  Act § 1128A(j)(2); 53 Fed. Reg. 12,909, 12,993 (Apr. 20, 1988); 48 Fed. Reg. 21,523, 21,662 (May 13, 1983).  The I.G. has issued regulations, codified in 42 C.F.R. Part 1001, subpart B, implementing the mandatory exclusion provisions.  See 42 C.F.R. § 1001.1.  Those regulations apply to and bind the I.G. in imposing exclusions of individuals from federal health care programs.  Id.  The regulations also apply to and bind the ALJs and the Board in reviewing the I.G.-imposed exclusions.  Id. § 1001.1(b).

An exclusion imposed under section 1128(a) of the Act must be in effect for at least five years.  Act § 1128(c)(3)(B); 42 C.F.R. § 1001.102(a).  The I.G. may impose a longer exclusion period if any of the nine aggravating factors in 42 C.F.R. § 1001.102(b) are present.  Relevant here are three aggravating factors:

• (1) The acts resulting in the conviction, or similar acts, caused, or were intended to cause, a financial loss to a government agency or program or to one or more other entities of $50,000 or more. (The entire amount of financial loss to such government agencies or programs or to other entities, including any amounts resulting from similar acts not adjudicated, will be considered regardless of whether full or partial restitution has been made[.]);
• (2) The acts that resulted in the conviction, or similar acts, were committed over a period of one year or more;

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

42 C.F.R. § 1001.102(b)(1), (b)(2), (b)(5).  If the I.G. excludes an individual for more than five years based on the application of any of these aggravating factors, any one or more of three mitigating factors in 42 C.F.R. § 1001.102(c) – and only those mitigating factors – may be considered to reduce the lengthened exclusion period, but not to less than five years.¹ 

An excluded individual may challenge the exclusion by requesting a hearing before an ALJ.  42 C.F.R. § 1005.2(a).  The only issues the ALJ may address are whether (1) the I.G. had a basis for the exclusion and (2) the length of the exclusion is unreasonable.  Id. § 1001.2007(a)(1).  A party dissatisfied with an ALJ’s decision may appeal the decision to the Board.  Id. § 1005.21(a). 

Case Background²

Petitioner’s crime and conviction

From about January 2008 through December 2014, Petitioner, a Pennsylvania cardiologist, was involved in a scheme to defraud health care programs, including Medicare and Medicaid, and health insurance companies that provide Medicare insurance.  ALJ Decision at 5-6; I.G. Ex. 2, at 1, 2-3, 6.  The scheme involved improperly billing the programs and companies for administering external counterpulsation (ECP) – a treatment for disabling angina that uses pressurized air cuffs that inflate and deflate around a patient’s legs to increase blood flow to the heart – to patients for whom ECP was not medically necessary.  ALJ Decision at 5-6; I.G. Ex. 2, at 6-10.  Petitioner also directed non-physician employees to administer the improperly-billed ECP treatments without the required physician supervision.  ALJ Decision at 6; I.G. Ex. 2, at 7 ¶¶ 20-21.  Petitioner also improperly “unbundled” the billing for ECP by using the Current Procedural Terminology (CPT) code designated for ECP but also additional CPT codes

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designated for service components already accounted for in the CPT code for ECP.³  I.G. Ex. 2, at 8 ¶ 28; I.G. Ex. 7, at 11.  Petitioner caused fraudulent billings totaling over $2,500,000 to be sent to Medicare, Medicaid, and multiple health insurance companies.  I.G. Ex. 2, at 8-9 ¶ 29.   

A federal grand jury indictment filed in 2016, in the United States District Court for the Western District of Pennsylvania (District Court) charged Petitioner with two felony counts of committing health care fraud, between January 2008 and December 2014, in violation of 18 U.S.C. § 1347.  ALJ Decision at 5-6; I.G. Ex. 2.  On June 14, 2019, a jury found Petitioner guilty on both counts.  ALJ Decision at 6 (citing I.G. Ex. 3).  In August 2021, the District Court entered judgment and sentenced Petitioner to 78 months of incarceration for each count to run concurrently, and three years of supervised release for each count to run concurrently.  Id. (citing I.G. Ex. 4, at 1-2; I.G. Ex. 6).  The District Court ordered Petitioner to pay restitution of $1,234,983.60 to Medicare and others.  Id. (citing I.G. Ex. 4, at 6-7; I.G. Ex. 6).  

I.G. Exclusion

By letter dated June 30, 2022, the I.G. notified Petitioner that Petitioner was excluded from participation in all federal health care programs, pursuant to sections 1128(a)(1) and 1128(a)(3) of the Act.  ALJ Decision at 2; I.G. Ex. 1, at 1.  The I.G. stated that the offense of which Petitioner was convicted in the District Court was “a criminal offense related to the delivery of an item or service under Medicare or a State health care program,” thus mandating exclusion under section 1128(a)(1).  I.G. Ex. 1, at 1.  The I.G. also stated that the same conviction required Petitioner’s exclusion under section 1128(a)(3) because the felony offense of which Petitioner was convicted was:

related to fraud, theft, embezzlement, breach of fiduciary responsibility, or other financial misconduct, in connection with the delivery of a health care item or service, or with respect to any act or omission in a health care program (other than Medicare and a State health care program) operated by, or financed in whole or in part, by any Federal, State or local government agency. 

Id.

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The I.G. extended the required minimum five-year exclusion to 27 years based on the presence of three aggravating factors:  (1) the acts resulting in Petitioner’s conviction, or similar acts, caused, or were intended to cause, financial loss to a government agency or program or to one or more other entities of $50,000 or more; (2) the acts resulting in Petitioner’s conviction, or similar acts, were committed over a period of one year or more; and (3) the District Court imposed a sentence that included incarceration.  Id. at 1-2; see also 42 C.F.R. § 1001.102(b)(1), (b)(2), (b)(5).  The I.G. stated that the District Court ordered Petitioner “to pay approximately $1,234,900 in restitution”; Petitioner’s criminal “acts occurred from about January 2008 to about December 2014”; and the District Court “sentenced [Petitioner] to 78 months of incarceration.”  I.G. Ex. 1, at 2.  The I.G. did not state that it considered any mitigating factor in 42 C.F.R. § 1001.102(c) in determining the exclusion’s length.  Id.

ALJ Proceedings and Decision

Petitioner timely requested ALJ review.  ALJ Decision at 2, 4.  The I.G. moved for summary judgment in the I.G.’s favor, asserting, among other things, that the evidence of conviction of felony health care fraud established a basis to exclude Petitioner under sections 1128(a)(1) and 1128(a)(3) of the Act.  Id. at 2; I.G.’s Motion for Summary Judgment at 7-10.  Petitioner filed a brief opposing summary judgment for the I.G. but did not dispute the fact of felony conviction or that the I.G. had a lawful basis to exclude Petitioner under sections 1128(a)(1) and 1128(a)(3) of the Act.  ALJ Decision at 2, 5 (citing P. Br. at 4). 

Granting summary judgment for the I.G., the ALJ concluded that the I.G. lawfully excluded Petitioner under sections 1128(a)(1) and 1128(a)(3) of the Act.  Id. at 5; see 42 C.F.R. § 1005.4(b)(12) (stating that an ALJ may, “[u]pon motion of a party, decide cases, in whole or in part, by summary judgment where there is no disputed issue of material fact”) (cited in ALJ Decision at 4).

The ALJ next turned to the issue of the duration of the exclusion and its reasonableness.  Because the I.G. had a lawful basis to exclude Petitioner under section 1128(a) of the Act, the ALJ stated that the I.G. must exclude Petitioner for at least five years as “required by Congress in section 1128(c)(3)(B) of the Act.”  ALJ Decision at 6 (also noting Petitioner acknowledged, in page 4 of their brief, that “there is no review of the reasonableness of the five-year period of exclusion or any discretion to impose a lesser period”).  The ALJ noted that Petitioner conceded the existence of three aggravating factors in 42 C.F.R. § 1001.102(b)(1), (b)(2), and (b)(5) that the I.G. applied to extend the five-year period; that Petitioner “cannot establish a mitigating factor” in section 1001.102(c); and that Petitioner challenged only the reasonableness of the exclusion period.  Id. at 5 (citing P. Br. at 4-7), 7-8 (separately discussing each aggravating factor).  The ALJ concluded that the 27-year exclusion was not unreasonable considering that “each of the [three] aggravating factors justifies a significant increase” of the required

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minimum five-year period.  Id. at 8-9.  The ALJ noted that the restitution amount is “24 times the amount of loss or intended loss that the I.G. may consider an aggravating factor”; “Petitioner’s acts occurred over a period seven times longer than the [one-year] period that may be considered as aggravating”; and the imposition of 78 months of incarceration (for each of the two counts of which Petitioner was convicted) reflects the District Court’s assessment of Petitioner’s “criminality” that “justifies a significant increase” of the required minimum exclusion period.  Id. at 9.  Finally, the ALJ rejected Petitioner’s equitable arguments for relief – “particularly those related to his age,” the alleged permanence of the exclusion, “the fact his offenses occurred more than ten years ago, and that his medical license has been reinstated” – as the ALJ had “no authority to grant such relief.”  Id. at 11.

The ALJ concluded that the I.G. lawfully excluded Petitioner from participation in all federal health care programs under sections 1128(a)(1) and 1128(a)(3) of the Act, effective July 20, 2022 (20 days after the date of the I.G.’s exclusion notice).  Id. (citing 42 C.F.R. § 1001.2002(b)).  The ALJ also concluded that the 27-year exclusion period was not unreasonable.  Id.    

Standard of Review

Whether summary judgment is appropriate is a legal issue the Board addresses de novo.  Sylvie Wamba, DAB No. 3068, at 6 (2022); Kimbrell Colburn, DAB No. 2683, at 4 (2016).  Summary judgment is appropriate when there is no genuine dispute about a fact or facts material to the outcome of the case, and the moving party is entitled to judgment as a matter of law.  Wamba, DAB No. 3068, at 6 (citing Delores L. Knight, DAB No. 2945, at 5 (2019)); Celotex Corp. v. Catrett, 477 U.S. 317, 322-25 (1986).  A dispute of fact is “material” if its resolution might affect the case’s outcome under the governing law.  Southpark Meadows Nursing & Rehab. Ctr., DAB No. 2703, at 5 (2016) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)).  The Board assesses whether summary judgment is appropriate in the light most favorable to the non-moving party (here, Petitioner) and gives that party the benefit of all reasonable inferences.  Wax David Flowers, Ph.D., DAB No. 3039, at 8 (2021) (citation omitted).  However, we are not required to draw unreasonable inferences or accept the non-moving party’s legal conclusions.  Brightview Care Ctr., DAB No. 2132, at 10 (2007).  Inferences based on speculation are not reasonable.  Dumas Nursing & Rehab., L.P., DAB No. 2347, at 18 (2010).  The reviewer may not assess credibility or weigh the evidence when deciding a summary judgment motion.  See Anderson, 477 U.S. at 249. 

The Board’s standard of review on a disputed conclusion of law is whether the ALJ’s decision is erroneous.  42 C.F.R. § 1005.21(h); see also Guidelines – Appellate Review of

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Decisions of Administrative Law Judges in Cases to Which Procedures in 42 C.F.R. Part 1005 Apply (Guidelines), “Completion of the Review Process,” ¶ c.⁴    

Analysis

Petitioner does not dispute that the I.G. had a lawful basis to exclude Petitioner under sections 1128(a)(1) and 1128(a)(3) of the Act based on a conviction, consistent with the definition of the term “convicted” in section 1128(i) of the Act and 42 C.F.R. § 1001.2, of felony health care fraud in violation of federal law.  Petitioner’s Br. in Support of Notice of Appeal to Board (P. Br. to Board) at 1 (stating that Petitioner “does not challenge the validity of the exclusion”), 4 (conceding that the I.G. “properly excluded” Petitioner under the Act).  Nor does Petitioner dispute that “three aggravating factors” in 42 C.F.R. § 1001.102(b)(1), (b)(2), and (b)(5) exist.  See id. at 4.  Petitioner, moreover, does not fault the ALJ for finding that Petitioner did not prove, let alone identify, the existence of a mitigating factor in 42 C.F.R. § 1001.102(c).  See id. (“[Petitioner] is unable to avail himself of any mitigating factors.”).  In short, Petitioner did not raise, and still does not raise, any dispute about a fact material to (1) establishing a legal basis for exclusion for at least five years; and (2) extending the mandatory minimum exclusion period based on aggravating factors. 

On de novo review, we, like the ALJ, conclude that the I.G. lawfully excluded Petitioner from participation in all federal health care programs under sections 1128(a)(1) and 1128(a)(3) of the Act and lengthened the required minimum exclusion period.  Those ALJ determinations being free of error and undisputed, we need not further discuss them.

Petitioner challenges now, as earlier, only the reasonableness of the 27-year exclusion period but does not raise any dispute about a fact that could be material to that issue.  As an initial matter, Petitioner argues that the ALJ erred in deciding this case on summary judgment.  P. Br. to Board at 2, 3.  Petitioner takes exception to the ALJ’s “conclusions of law” numbered 2 (“Summary Judgment is appropriate in this case.”) and 6 (“Exclusion for 27 years is not unreasonable in this case.”).  Id. at 3; ALJ Decision at 4, 8.  However, Petitioner does not actually identify any factual disagreement material to the issue of reasonableness of the exclusion period, which is the only issue Petitioner wants the Board to review.

The gravamen of Petitioner’s arguments is that the I.G. did not “properly assess the circumstances surrounding the three aggravating factors” that, according to Petitioner, “do not merit the weight” the I.G. assigned to them.  P. Br. to Board at 5.  As we understand the arguments, Petitioner is alleging the ALJ thus erred in upholding the

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I.G.’s decision to impose a 27-year exclusion.  However, nowhere does Petitioner address how the I.G. improperly assessed the proven aggravating factors and why the I.G. put too much weight on any of them.  Petitioner instead makes only arguments about mitigating circumstances – none within the ambit of 42 C.F.R. § 1001.102(c) – that, Petitioner says, ought to be the basis for a shorter exclusion.  Those arguments, taken together, assert, without evidence, that the I.G. is punishing Petitioner, and seek an equitable reduction of the exclusion period; they do not address or show how the I.G. put too much weight on any aggravating factor. 

We confine our analysis below to the issue of reasonableness of the exclusion period.  Having fully assessed the aggravating factors and the circumstances of this case, we conclude that a 27-year exclusion period is reasonable and affirm the ALJ Decision.

I.      The 27-year exclusion period is reasonable based on three significant aggravating factors and the absence of any cognizable mitigating factor.

The I.G. has “broad discretion” in determining the length of an exclusion, given its “vast experience in implementing exclusions.”  Spyros N. Panos, M.D., DAB No. 2709, at 11 (2016) (quoting Sushil Aniruddh Sheth, M.D., DAB No. 2491, at 5 (2012), appeal dismissed, No. 13-cv-00448 (BJR) (D.D.C. Oct. 22, 2013), aff’d, No. 14-5179, 2015 WL 3372286 (D.C. Cir. May 7, 2015)).  As “long as the amount of time chosen by the [I.G.] is within a reasonable range, based on demonstrated criteria, the ALJ has no authority to change” the length of the exclusion.  57 Fed. Reg. 3298, 3321 (Jan. 29, 1992).  As such, the ALJ’s (and the Board’s) review of the length of exclusion imposed by the I.G. is not “an unconstrained mandate to select any period of exclusion that may appear reasonable[.]”  Edwin L. Fuentes, DAB No. 2988, at 9 (2020), aff’d, No. 4:20-cv-00026 (W.D. Va. Sept. 23, 2021).  The ALJ’s and the Board’s review is limited to determining whether the length of exclusion “is within the range of reasonable exclusion periods (given the proven aggravating and mitigating factors).”  Id. at 11; see also Panos, DAB No. 2709, at 11; Shaun Thaxter, DAB No. 3053, at 26-27 (2021). 

We do not weigh aggravating and mitigating factors using a “rigid formula” but instead assess each factor “based on the circumstances of a particular case.”  Fuentes, DAB No. 2988, at 12 (quoting 57 Fed. Reg. at 3314-15); see also Yolanda Hamilton, M.D., DAB No. 3061, at 21 (2022) (stating that the assessment is “case-specific”); Robert Kolbusz, M.D., DAB No. 2759, at 6 (2017) (stating that the assessment “must be qualitative, not just quantitative”).  “While no rigid formula applies, the exclusion period . . . must be large enough to reflect the significant program loss and the need ‘to protect federally-funded health care programs from untrustworthy individuals.’”  Vinod Chandrashekhar Patwardhan, M.D., DAB No. 2454, at 6 (2012) (quoting Donald A. Burstein, Ph.D., DAB No. 1865, at 12 (2003)); see also Hussein Awada, M.D., DAB No. 2788, at 5 (2017) (and cited decisions). 

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As discussed in the ALJ Decision (at 7-8) and set out below, the record evidence shows that (1) Petitioner’s fraud caused substantial financial loss to federally-funded health care programs, including Medicare and Medicaid, as evidenced by the court-ordered restitution; (2) Petitioner participated in the fraud scheme for a lengthy period of approximately seven years; and (3) the District Court imposed a considerably long incarceration term of 78 months.  These three factors are significant individually, and collectively reflect a high degree of untrustworthiness of an individual whose lapse in integrity was not short-lived and who poses a considerable risk of harm to federal health care programs.  Moreover, these aggravating factors’ gravity and magnitude are not offset by any mitigating factor in 42 C.F.R. § 1001.102(c).  In short, the undisputed facts amply support excluding Petitioner for 27 years, a period we believe is appropriate and reasonable to protect federal health care programs and the beneficiaries they serve.  

1. A.     Three aggravating factors, individually significant and collectively indicative of a high degree of untrustworthiness, support an exclusion considerably longer than the mandatory minimum five-year period.
   1. 1.     Financial loss of at least $50,000 (42 C.F.R. § 1001.102(b)(1))

It is undisputed that the District Court ordered Petitioner to pay $1,234,983.60 in restitution to Medicare, Gateway Medicaid, Highmark Blue Cross Blue Shield, and UPMC’s Fraud, Waste, and Abuse Unit – the victims of Petitioner’s fraud.  ALJ Decision at 7 (citing I.G. Ex. 4, at 6-7; I.G. Ex. 6).  Where, as here, the acts resulting in conviction caused a financial loss of $50,000 or more to a government agency or program or other entities, the “entire amount of financial loss . . . will be considered regardless of whether full or partial restitution has been made.”  42 C.F.R. § 1001.102(b)(1). 

“The Board has long acknowledged that restitution is a measure of program loss.”  Awada, DAB No. 2788, at 7; see also Summit S. Shah, M.D., DAB No. 2836, at 8 (2017); Fuentes, DAB No. 2988, at 13; Panos, DAB No. 2709, at 7; Craig Richard Wilder, DAB No. 2416, at 9 (2011); ALJ Decision at 7 (and cited decisions).  The restitution amount is one indication of the seriousness of the individual’s crime and thus the level of threat the individual poses to program integrity.  Awada, DAB No. 2788, at 7.  In instances where the program loss is substantially larger than the regulation’s threshold amount, this factor may be considered “an ‘exceptional aggravating factor’ to be accorded significant weight.”  Laura Leyva, DAB No. 2704, at 10 (2016) (quoting Sheth, DAB No. 2491, at 7), aff’d, No. 8:16-CV-1986-T-27AEP, 2017 WL 2880125 (M.D. Fla. Apr. 24, 2017).  

The ALJ aptly noted that the “magnitude of the restitution” amount of $1,234,983.60, which is over “24 times the amount of loss or intended loss that the I.G. may consider” as an aggravating factor, “reflects” the significant “financial impact of Petitioner’s criminal offenses recognized by the district court.”  ALJ Decision at 9.  We also note that the record indicates over $556,000 of the total restitution amount were allocated to Medicare

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Part B.⁵  I.G. Ex. 4, at 6.  That amount alone is more than 11 times the threshold amount for the aggravating factor in section 1001.102(b)(1).  We agree that the “financial loss” factor in section 1001.102(b)(1) is an “exceptional” factor that warrants “significant weight.”  Leyva, DAB No. 2704, at 10.   

1. 2. 2.     Crimes were committed over a period of one year or longer (42 C.F.R. § 1001.102(b)(2))

Petitioner participated in the criminal offense from about January 2008 to December 2014, approximately a seven-year period.  ALJ Decision at 7-8 (citing I.G. Ex. 3, at 5).  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.”  Burstein, DAB No. 1865, at 8.  We cannot overstate the importance of distinguishing between the two groups of individuals in light of the need to protect federal health care programs and the beneficiaries they serve from untrustworthy individuals.  See Awada, DAB No. 2788, at 5 (and cited decisions); Hamilton, DAB No. 3061, at 14-15 (and cited decisions). 

The assessment of reasonableness of a lengthened exclusion period does not involve application of a “rigid formula” in weighing aggravating and mitigating factors.  See Eugene Goldman, M.D., a/k/a Yevgeniy Goldman, M.D., DAB No. 2635, at 8 (2015).  Accordingly, comparisons of individual cases are of limited value.  See Asim A. Hameedi, M.D., DAB No. 3087, at 14 (2023).  Nevertheless, assessment of individual aggravating factors in other cases can be illustrative and instructive.  We note that, in numerous section 1128(a) exclusion cases arising from health care fraud, we have found criminal conduct for periods shorter than the approximately seven-year period established here to be significant and indicative of the excluded individual’s degree of untrustworthiness.  See, e.g., Panos, DAB No. 2709, at 12 (stating that participation for five years was “substantially longer than the one year threshold for it to become an aggravating factor”); Patwardhan, DAB No. 2454, at 7 (stating that a three-year scheme demonstrated an “ongoing lack of integrity”); Rosa Velia Serrano, DAB No. 2923, at 9 (2019) (stating that participation in Medicaid fraud for four years amounted to “a protracted period of criminal conduct” that showed petitioner was “extremely untrustworthy”), recon. denied, DAB Ruling No. 2019-2 (Apr. 25, 2019); Leyva, DAB No. 2704, at 10 (stating that participation in conspiracy to defraud Medicare that lasted more than two years “amply demonstrates more than a short-lived lapse in integrity”).

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The ALJ correctly observed that Petitioner participated in a “years-long” fraud scheme, for a period “seven times longer than the period that may be considered as aggravating.”  ALJ Decision at 9, 10.  We agree with the ALJ that this is a lengthy period, and it indicates Petitioner is highly untrustworthy.

1. 1. 3.     Sentence included incarceration (42 C.F.R. § 1001.102(b)(5))

The sentence imposed by the District Court included incarceration for 78 months for each of two counts of which Petitioner was charged and found guilty.  ALJ Decision at 8 (citing I.G. Ex. 4, at 2). 

“Any period of incarceration can support an increase of the period of exclusion” in accordance with 42 C.F.R. § 1001.102(b)(5).  Goldman, DAB No. 2635, at 6.  However, the term of incarceration may be considered a reasonable proxy for assessing an individual’s untrustworthiness in the context of deciding how much weight to assign to the aggravating factor of incarceration.  Hamilton, DAB No. 3061, at 17 (citing Goldman at 5).  Accordingly, a lengthy incarceration period may reasonably correlate to a higher level of untrustworthiness and thus warrant more weight.  The Board has considered incarceration periods of 78 months, and some much shorter than that, to be significant and warrant more weight.  See, e.g., Kimberly Jones, DAB No. 3033, at 9 (2021) (stating that a 78-month incarceration term is a “lengthy period of incarceration to which an ALJ may assign substantial weight”); Waleed Khan, DAB No. 3083, at 7 (2023) (determining 72-month incarceration term justified substantial increase of the required minimum exclusion period); Hamilton, DAB No. 3061, at 17 (describing a 60-month incarceration term as “substantial”); Panos, DAB No. 2709, at 12 (characterizing a 54-month incarceration period as an “unquestionably [] significant period”); Fuentes, DAB No. 2988, at 12 (characterizing 24-month incarceration as “a substantial term”); Jason Hollady, M.D., a/k/a Jason Lynn Hollady, DAB No. 1855, at 12 (2002) (characterizing a nine-month incarceration term 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).   

We agree with the ALJ that the 78-month incarceration period is “a substantial amount of time that reflects [Petitioner’s] criminality in the eyes of the district court and justifies a significant increase from the minimum exclusion of five years.”  ALJ Decision at 9.  The substantial term of incarceration may be viewed as “an unmistakable reflection of the District Court’s assessment of Petitioner’s untrustworthiness.”  Raymond Lamont Shoemaker, DAB No. 2560, at 8 (2014). 

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1. B.     No cognizable mitigating factor exists to reduce or offset the effect of three significant aggravating factors.

Because aggravating factors in 42 C.F.R. § 1001.102(b) were applied to lengthen the minimum five-year exclusion period, any one or more of the three mitigating factors in 42 C.F.R. § 1001.102(c) may be considered to reduce the lengthened exclusion period to no less than five years. 

The ALJ notified Petitioner early in the appeal process, before the I.G. moved for summary judgment in its favor, that Petitioner must bear the burden of proof and the burden of persuasion on any mitigating factors.  See ALJ Decision at 4 (citing regulations and Prehearing Order ¶ 4).  Petitioner did not identify the existence of any mitigating factor in section 1001.102(c).  The ALJ stated that “Petitioner . . . cannot establish a mitigating factor not considered by the I.G.”  Id. at 8.  Petitioner does not dispute this statement by the ALJ or assert that a mitigating factor recognized in section 1001.102(c) exists.  Petitioner raises no argument about any dispute of fact concerning the mitigating factors in section 1001.102(c). 

II.     Petitioner raises arguments about mitigating circumstances that the governing regulations do not recognize and that cannot be a basis for reducing the 27-year exclusion period.

Petitioner asserts several arguments for shortening the 27-year exclusion period that the I.G. determined and the ALJ upheld, but we cannot and do not accept those arguments.  “[T]he only mitigating factors that may be considered in determining whether an exclusion period is unreasonable are those set out in sections 1001.102(c)(1)-(3).”  James Brian Joyner, M.D., DAB No. 2902, at 9 (2018).  Petitioner does not allege or prove the existence of any such regulatory mitigating factors, and the circumstances Petitioner characterizes as mitigating cannot serve to reduce the exclusion period as a matter of law.

1. A.     We reject Petitioner’s argument that a 27-year exclusion is a “permanent” exclusion.

Petitioner argues, without citing any authority, that a 27-year exclusion, which is “five times as long as the mandatory minimum,” is, “in effect,” a “permanent” exclusion from federally-funded health care programs.  P. Br. to Board at 5, 6, 7.  The Board understands Petitioner’s concern to be that a 27-year exclusion puts Petitioner, who is now 60 years old (id. at 2, 5), in the predicament of possibly being unable to resume medical practice and participate in federal health care programs after the lengthy exclusion period ends.  Petitioner raised a similar argument below, and the ALJ rejected it.  The ALJ stated:

Petitioner cites no authority to support a position that the IG does not have discretion under section 1128(c)(3) of the Act and 42 C.F.R. § 1001.102 to

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impose a permanent exclusion.  However, the fact is that the IG did not impose a permanent exclusion but, rather, a 27-year exclusion clearly reflecting that the IG knew the difference and exercised discretion. 

ALJ Decision at 9-10.

We agree with the ALJ.  As explained above and in the ALJ Decision (at 8-9), the ALJ’s and the Board’s role on appeal is not to substitute their judgment for that of the I.G., who has the authority to set appropriate exclusion periods, but to assess the full record to determine whether the length of the exclusion the I.G. chose to impose is consistent with applicable authorities and lies within a reasonable range.  That assessment does not consider the excluded individual’s age when the exclusion was imposed and how old that individual would be after an augmented exclusion period ends, because neither is a mitigating factor recognized in 42 C.F.R. § 1001.102(c).⁶  The fact that a lengthened exclusion effectively could operate as a “permanent” exclusion under Petitioner’s circumstances does not mean that a lengthened exclusion period is unlawful or unreasonable. 

Furthermore, the I.G.’s choice to impose an exclusion that is (more than) five times the mandatory minimum does not mean that the I.G. imposed an unreasonably long exclusion.  See Hamilton, DAB No. 3061, at 24 (rejecting implication that a 35-year exclusion, seven times the mandatory period for a section 1128(a)(1) exclusion, indicated an unreasonable lengthening of the required minimum period).  Petitioner does not cite, and we are unaware of, any authority that imposes an upper limit on the number of years (whether total, in addition to the required minimum, or expressed as multiples of the required minimum period) that the I.G. reasonably may impose on an exclusion under section 1128(a) of the Act. 

Petitioner also argues that the I.G. has imposed, or effectively has imposed, an unlawful “permanent” exclusion even though a permanent exclusion is authorized only where an excluded individual has multiple convictions – which Petitioner does not have.  P. Br. to Board at 6 (citing 42 C.F.R. § 1001.102(d)). 

We reject the argument as unfounded.  The I.G. may impose a minimum exclusion of 10 years where an individual has been convicted on one previous occasion of one or more

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offenses for which an exclusion may be imposed under section 1128(a) of the Act, and a “permanent” exclusion if the individual has been convicted on two or more previous occasions of one or more offenses for which an exclusion may be imposed under section 1128(a) of the Act.  See Act § 1128(c)(3)(G); 42 C.F.R. § 1001.102(d)(1), (d)(2).  The record does not show that Petitioner was convicted of a crime other than the felony health care fraud for which the I.G. decided to exclude Petitioner.  Nothing in the record indicates that the I.G. increased the minimum five-year period by 22 years on the assumption that Petitioner had more than one conviction.  To the extent Petitioner suggests that either the I.G. or ALJ erroneously assumed Petitioner had multiple convictions, we reject that suggestion.  Moreover, a 27-year exclusion is “[a]n exclusion of finite duration” and thus “is not the equivalent of a permanent exclusion.”  Jeremy Robinson, DAB No. 1905, at 7 (2004) (also discussing Congress’s determination that a minimum exclusion of 10 years or a permanent exclusion may be appropriate for individuals with more than one conviction, which indicates that “Congress did not view permanent exclusion as the functional equivalent of an exclusion of finite duration”).  

1. B.     We reject Petitioner’s argument that a 27-year exclusion is punitive.

Petitioner asserts the I.G. seeks to punish Petitioner with a 27-year exclusion.  P. Br. to Board at 5, 6, 7.  Petitioner posits that the I.G.’s “failure to articulate justification” for the “extensive” exclusion “suggests” the exclusion period is “punitive rather than solely intended to protect publicly funded health care programs from an untrustworthy individual.”  Id. at 5.  These arguments are another way of asserting that the exclusion period is unreasonably long.

Petitioner’s brief discusses the distinction between a section 1128 exclusion, which is a civil action whose purpose is remedial and that is designed to protect federally funded health care programs from untrustworthy individuals, and punishment imposed for a crime.  See P. Br. to Board at 5.  Thus, Petitioner appears to be aware that I.G. exclusions are not intended to be punitive, as established in numerous Board decisions.  See, e.g., Valentine Okonkwo, DAB No. 2832, at 5 (2017) (stating “courts and the Board have explained that exclusion is not a punitive but rather a remedial measure” to protect federal health care programs and their beneficiaries from untrustworthy individuals); Ethan Edwin Bickelhaupt, M.D., DAB No. 2480, at 3 (2012) (“[C]ourts and the Board have repeatedly held that exclusions under section 1128 are civil and remedial, not criminal and punitive.”); Joann Fletcher Cash, DAB No. 1725, at 10 (2000) (“[A] section 1128 exclusion is civil and remedial rather than criminal and punitive.”).  Yet, Petitioner repeatedly argues that the I.G. is punishing Petitioner. 

The I.G.’s selection of an exclusion period’s length is not “punitive” when, as here, the exclusion period chosen is grounded in three significant aggravating factors and no legally recognized mitigating factor(s) to offset their collective effect.  Like the ALJ, we recognize the assigned length of Petitioner’s exclusion period as reflecting instead the

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I.G.’s exercise of its broad discretion and vast experience in implementing exclusions.  See ALJ Decision at 9-10; see also Juan de Leon, Jr., DAB No. 2533, at 5 (2013) (“The preamble to 42 C.F.R. Part 1001 indicates that the I.G. has ‘broad discretion’ in setting the length of an exclusion in a particular case, based on the I.G.’s ‘vast experience’ in implementing exclusions.” (citing 57 Fed. Reg. at 3321)).

We also reject Petitioner’s objection that the I.G. did not “articulate justification” for its imposition of a 27-year exclusion and thus the exclusion period is “punitive” (unreasonable).  The I.G. did “articulate justification” – the existence of three significant aggravating factors, which indicate that Petitioner is a highly untrustworthy individual who stole a significant amount of money from federal health care programs and insurers for approximately seven years, and whose lengthy incarceration, as the ALJ aptly stated, reflects the District Court’s assessment of Petitioner’s “criminality.”  ALJ Decision at 9. 

1. C.     Petitioner’s ability to pay restitution may not be considered to reduce the 27-year exclusion.

Petitioner states that as “daunting” as the prospect of having to pay over $1.2 million in restitution is, Petitioner is committed to paying it.  P. Br. to Board at 3.  Petitioner asserts, however, that, in light of Petitioner’s age, a 27-year exclusion “renders it unrealistic, if not impossible, . . . to repay the restitution.”  Id. at 6.  Petitioner advanced a similar argument before the ALJ, who framed it as follows:  “Petitioner is arguing that he needs to be able to bill Medicare and Medicaid so that he can afford to reimburse Medicare and Medicaid for his years-long, multimillion-dollar fraud.”  ALJ Decision at 10.  The ALJ stated that “[w]hether Petitioner pays the restitution ordered by the district court is a matter between Petitioner and the district court,” and “Petitioner’s ability to pay restitution is not a basis upon which” the ALJ is “permitted to overturn the I.G.’s discretion.”  Id. 

We agree with the ALJ that Petitioner’s ability to pay restitution is not relevant here.  Neither the excluded individual’s responsibility to pay court-ordered restitution, nor the fact that the restitution amount is, as here, substantial, may be considered to reduce the length of an exclusion longer than the mandatory minimum.  See Robinson, DAB No. 1905, at 7 (“While the practical effect of . . . [an] exclusion . . . in any particular case might be to prevent a provider from ever participating in federally funded programs again, the Board has repeatedly declined to consider an individual’s age or financial or employment prospects in determining whether an exclusion period was reasonable.”).As stated elsewhere, only the mitigating factors in 42 C.F.R. § 1001.102(c) may be applied.  See Joyner, DAB No. 2902, at 9.

If anything, Petitioner’s statement about the “daunting” prospect of having to pay a significant restitution amount serves to underscore the considerable extent and duration of Petitioner’s criminal activity that enabled Petitioner to steal a significant sum of

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money, which indicates a high degree of untrustworthiness.  Furthermore, the full amount of the restitution of over $1.2 million is to be considered as the financial loss incurred by the victims of Petitioner’s fraud regardless of whether any part of it was or ever is actually paid.  See 42 C.F.R. § 1001.102(b)(1); see also Paul W. Williams, Jr. & Grand Coteau Prescription, DAB No. 1785, at 3 (2001) (in considering this aggravating factor, rejecting argument that the magnitude of the theft is irrelevant if the government succeeds in recovering the loss).  It would make no sense to consider the full restitution amount as the financial loss caused by the excluded individual when applying the aggravating factor in section 1001.102(b)(1) to lengthen the mandatory minimum exclusion period, but then to ease that individual’s burden by reducing the exclusion period because the individual allegedly or possibly could not pay the restitution.  Such a proposition finds no support in the exclusion authorities and would be incompatible with an exclusion’s remedial purpose. 

Despite Petitioner’s expression of intent to pay restitution, Petitioner’s statements about how difficult it would be to do so, together with multiple references to Petitioner’s age, essentially amount to a plea for a shorter exclusion period to facilitate Petitioner’s return to gainful employment as soon as possible.  In assessing the reasonableness of an exclusion period, we cannot consider collateral consequences of an exclusion that could affect the excluded individual’s future employment or career prospects.  See Charice D. Curtis, DAB No. 2430, at 6 (2011) (explaining that the Board has no authority to provide equitable relief based on “the damage to [a petitioner’s] career the exclusion has wrought”); Hamilton, DAB No. 3061, at 25 (rejecting argument that a lengthy exclusion would have “wide-sweeping consequences that will destroy any realistic chance” petitioner “might have to obtain gainful employment or even a volunteer position in health care”); Robinson, DAB No. 1905, at 8 (“The practical consequences [of an I.G. exclusion] to the excluded individual or entity are not mitigating factors for consideration.”); Cash, DAB No. 1725, at 19 (upholding exclusion period as imposed by the I.G. despite the potential for “dramatic impact” on employment prospects); Wamba, DAB No. 3068, at 16 (stating that the ALJ “correctly determined that possible adverse consequences of the exclusion on [p]etitioner’s business is not a mitigating factor recognized under section 1001.102(c)”).

1. D.     The status of Petitioner’s Pennsylvania medical license has no bearing on the reasonableness of the lengthened exclusion.

Petitioner refers to “disciplinary action” that is “pending against” Petitioner’s “active” Pennsylvania medical license.  P. Br. to Board at 3.  Petitioner states that even if the Pennsylvania State Board of Medicine were to revoke the license, there is a “a pathway to reinstatement” available to Petitioner before the lapse of the I.G. exclusion.  Id. at 3, 6.  Petitioner suggests the Board ought to reduce the 27-year exclusion in consideration of the current status of his medical license and the possibility of its reinstatement (if revoked), and because a state medical licensing board’s disciplinary actions and the I.G.’s

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exclusions are both intended to protect public welfare and safety.  See id. at 6.     

Neither the current status of Petitioner’s medical license, nor the possibility that the license, if revoked, suspended, or restricted in any way, could be reinstated or activated in the future, has any bearing on our analysis.  See Jones, DAB No. 3033, at 12 (“There is . . . no legal requirement that the length of an exclusion match or track the suspension of an individual’s state professional license.”).  The issue is whether the lengthened exclusion period is reasonable, in accordance with the applicable exclusion authorities.  None of the mitigating factors in 42 C.F.R. § 1001.102(c) concerns an excluded physician’s licensing status.  The I.G. was under no legal obligation to consider Petitioner’s licensing status in setting the exclusion’s length.   

1. E.     Petitioner’s remaining arguments amount to a plea for equitable reduction of the exclusion period that neither the ALJ nor the Board may provide.

Petitioner states that “[t]he passage of time as well as a period of incarceration has provided [Petitioner] with ample opportunity to reflect on his conduct,” which occurred “a decade ago,” and that Petitioner is “less likely” to “reoffend or pose a threat to” federal health care programs in the future.  P. Br. to Board at 3, 7.  Petitioner is now “a humbler individual than the physician who improperly billed more than a decade ago.”  Id. at 3. 

These statements, considered with the statements about Petitioner’s age and facing a “permanent” exclusion without good prospects for gainful pursuits, boil down to a plea for equitable reduction of the exclusion period.  As the ALJ correctly stated, the ALJ is not empowered to grant equitable relief and must apply the exclusion authorities.  ALJ Decision at 11 (citations omitted).  The same is true for the Board.  See Khan, DAB No. 3083, at 14 (and cited decisions).     

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Conclusion

We affirm the ALJ Decision.

Endnotes

¹  The mitigating factors in 42 C.F.R. § 1001.102(c) address situations where the excluded individual:  was convicted of misdemeanor offenses with losses less than $5,000; demonstrated a mental, emotional or physical condition before or during the commission of the offense that reduced the excluded individual’s culpability; or cooperated with federal or state officials in investigations that resulted in certain outcomes.  None are applicable here.

²  The facts are undisputed and drawn from the ALJ Decision and the record of the ALJ proceedings. 

³  The Current Procedural Terminology, or “CPT,” is the American Medical Association’s coding system of descriptive terms and numeric codes that health care providers use to report and bill for their services.  The Centers for Medicare & Medicaid Services (CMS), which administers the Medicare program, incorporated the CPT into CMS’s Healthcare Common Procedure Coding System (HCPCS), a compilation of definitions of physician and other health care professional services, codes for those services, and payment modifiers used to process and pay Medicare claims.  See Realhab, Inc., DAB No. 2542, at 6 (2013) (and cited law and regulations).  “Unbundled” billing involves the misuse of CPT codes that could result in overbilling.  See HeartFlow, Inc., DAB No. 2781, at 3-4, 12 (2017).

⁴  The Guidelines are available at:  https://www.hhs.gov/about/agencies/dab/different-appeals-at-dab/appeals-to-board/guidelines/procedures/index.html?language=en.

⁵  The remainder was allocated to the other recipients of restitution, including companies that provide Medicare insurance.  See I.G. Ex. 4, at 6-7; I.G. Ex. 2, at 2-3.

⁶  We are aware that Petitioner is not asserting that the fact that Petitioner is now 60 years old is itself a factor that warrants a shorter exclusion period.  P. Br. to Board at 5 (Petitioner “does not offer his age as a mitigating factor”).  Nevertheless, in addressing an argument that a 48-year section 1128(a)(1) exclusion was equivalent to a lifetime exclusion, the Board acknowledged that petitioner’s chances of returning to medical practice were “unlikely” given a 48-year exclusion, but stated that a petitioner’s “age is not relevant to the question of the reasonableness of the period of exclusion because it is not a mitigating factor.”  Zahid Imran, M.D., DAB No. 2680, at 14 (2016).