Cesar M. Cubano-Martinez, M.D., DAB No. 3142 (2024)

FINAL DECISION ON REVIEW OF
ADMINISTRATIVE LAW JUDGE DECISION

Cesar M. Cubano-Martinez, M.D. (Petitioner) appeals the March 22, 2024 decision of an Administrative Law Judge (ALJ), captioned Cesar M. Cubano-Martinez, M.D., DAB CR6446 (2024) (ALJ Decision).  The ALJ Decision upheld the determination of the Inspector General (I.G.) to exclude Petitioner from participation in Medicare, Medicaid, and all federal health care programs for 20 years under section 1128(a)(1) of the Social Security Act (Act).  We affirm the ALJ Decision for the reasons stated below.

Legal Background

Section 1128(a)(1) of the Act requires the Secretary of the Department of Health and Human Services to exclude from participation in all federal health care programs any individual who “has been convicted of a criminal offense related to the delivery of an item or service under title XVIII or under any State health care program.”  Act § 1128(a)(1).  The implementing regulation echoes the statute, providing in pertinent part that the I.G. “will exclude any individual or entity that—(a) Has been convicted of a criminal offense related to the delivery of an item or service under Medicare or a State health care program.” 42 C.F.R. § 1001.101(a).   

An exclusion imposed under section 1128(a)(1) of the Act must be for at least five years.  Act § 1128(c)(3)(B); 42 C.F.R. § 1001.102(a).  The I.G. may impose an exclusion under section 1128(a) that exceeds five years if any of several specified aggravating factors are present.  42 C.F.R. § 1001.102(b).  Two such factors are relevant here:

• The acts that resulted in the conviction caused a financial loss to a government agency or program of $50,000 or more; and
• The acts that resulted in the conviction were committed over a period of one year or more.

See id. § 1001.102(b)(1)-(2). 

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If the I.G. determines that one or more aggravating factors justify an exclusion longer than five years, the I.G. may consider only three specified mitigating factors as a basis for reducing the exclusion period to no less than five years.  See id. § 1001.102(c).  One such factor is applicable when the record of the criminal proceedings “demonstrates that the court determined that the individual had a mental, emotional, or physical condition before or during the commission of the offense that reduced the individual’s culpability.”  Id. § 1001.102(c)(2).  Another mitigating factor concerns cooperation with government officials and is applicable if:

The individual’s or entity’s cooperation with Federal or State officials resulted in—

(i) Others being convicted or excluded from Medicare, Medicaid and all other Federal health care programs,

(ii) Additional cases being investigated or reports being issued by the appropriate law enforcement agency identifying program vulnerabilities or weaknesses, or

(iii) The imposition against anyone of a civil money penalty or assessment under part 1003 of this chapter.

Id. § 1001.102(c)(3). 

In exclusion cases such as this, an excluded individual may request a hearing before an ALJ.  Id. § 1005.2(a); see also id. § 1005.1 (defining “exclusion cases”).  However, the ALJ may address only two issues, namely whether: (i) the I.G. had a basis for imposing the exclusion; and (ii) an exclusion longer than the required minimum period is unreasonable.  Id. § 1001.2007(a)(1). 

A party dissatisfied with the ALJ’s decision may appeal it to the Board.  Id. § 1005.21(a). 

Case Background ¹

Petitioner, a physician authorized to practice medicine in Puerto Rico, was charged in federal court in September 2022 with one count of health care fraud and pled guilty.  I.G. Exs. 2-3.  Specifically, Petitioner pled guilty to knowingly and willfully executing, from June 2016 through May 2020, “a scheme and artifice to defraud, and to obtain, by means

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of materially false and fraudulent pretenses, representations, and promises, money and property owned by and under the custody and control of” Medicare “in connection with the delivery of and payment for healthcare benefits, items, and services.”  I.G. Ex. 3, at 1‑2, 11.  Petitioner stipulated to having caused “false and fraudulent claims to be submitted to Medicare for services not rendered.”  Id. at 12.  Petitioner’s “scheme to defraud Medicare” admittedly involved “false and fraudulent office visits” and issuing prescription drugs, including controlled substances, “without examining the patients,” and billing for purportedly providing such services in one locality while actually employed full time in another.  Id.  Petitioner’s false and fraudulent claims to Medicare totaled “approximately $2,644,116.67,” and Petitioner admittedly was paid $1,941,017.26, for “face-to-face office visits” with dates of service when Petitioner “was not present” and “did not provide such services.”  Id. 

On February 15, 2023, the court entered a judgment, accepting Petitioner’s guilty plea and imposing a sentence of probation for five years.  I.G. Ex. 4, at 1-2.  The court further ordered Petitioner to pay $1,941,017.26 in restitution to the Medicare Program.  Id. at 5.

By letter dated July 31, 2023 (the Notice Letter), the I.G. gave notice of Petitioner’s exclusion for 20 years (beginning 20 days from the letter’s date) from participation in all federal health care programs pursuant to section 1128(a)(1) of the Act.  ALJ Decision at 1; I.G. Ex. 1, at 1.  The I.G. explained the exclusion was due to Petitioner’s conviction “of a criminal offense related to the delivery of an item or service under Medicare or a State health care program, including the performance of management or administrative services relating to the delivery of items of services under any such program.”  Id. The I.G. stated that Petitioner’s “period of exclusion is greater” than five years due to evidence of two 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.)  The court ordered you to pay approximately $1,941,100 in restitution.
2. 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 June 2016 to about May 2020.

IG Ex. 1, at 1.

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Petitioner timely requested an ALJ hearing.²  ALJ Decision at 2; RFH1, at 1-2; RFH2, at 1-2.  Petitioner did not challenge the basis for imposing the sanction but argued that its length was “extremely harsh” and “severe.”  RFH1, at 2; RFH2, at 1.  Petitioner asserted the 20-year exclusion made it “almost impossible” to pay $1,941,100 in restitution within a reasonable amount of time and to “fully operate [Petitioner’s] office,” as the “vast majority of” Petitioner’s patients are Medicare beneficiaries.  RFH2, at 1-2.  Petitioner further objected to the exclusion’s impact on the “vulnerable people” Petitioner’s practice treats in “rural communities with poor to no access to medical services.”  Id. at 2.  Petitioner requested a six-month to one-year “transitional period” to refer patients to other physicians and a repayment plan of between 10 and 20 years.  Id. at 3.

The I.G. filed a brief and four exhibits, arguing that the requirements for excluding Petitioner under section 1128(a)(1) of the Act were met and the evidence establishes two aggravating factors.  ALJ Decision at 2; I.G. Br. to ALJ at 4-7; I.G. Exs. 1-4.  Those factors were that Petitioner’s criminal acts caused a financial loss to a government agency or program of $50,000 or more (based on the court-ordered restitution of $1,941.017.26) and occurred over a period of one year or more (from June 2016 to about May 2020).  I.G. Br. to ALJat 7-8.  The I.G. applied no mitigating factors and argued that Petitioner did not provide evidence to establish any mitigating factors.  Id. at 8.  The I.G. proffered no witness testimony and considered a hearing unnecessary.  Id. at 10-11.

Petitioner filed a brief, asserting primarily that the 20-year exclusion, “even if allegedly supported by the applicable laws, regulations and cases,” was a cruel and unusual punishment.  P. Br. to ALJ.  Petitioner argued the exclusion was unnecessary, “overly severe compared to the crime,” and “a life sentence.”  Id.  Petitioner asked to reduce the exclusion to a maximum of one year, beginning retroactively in September 2022, due to “his advanced age,” with “no job, no income,” and “no possibility” of paying the ordered restitution, which “goes against [I.G.’s] interest in collecting” it.  Id. (emphasis omitted).  Petitioner attached three unlabeled, unpaginated proposed exhibits.  ALJ Decision at 2; P. Br. to ALJ.  The first was an unsigned letter dated March 6, 2023, from Petitioner to the I.G., requesting leniency because Hurricane Maria in 2017 left Petitioner’s office without electricity for approximately 6 months, the office catered to elderly and impoverished people reliant on Medicare, and Petitioner fully “cooperated with the investigation.”  ALJ Decision at 2; P. Ex. 1, at 1.  The second attachment included an undated summary of Petitioner’s personal and educational background and a November 3, 2022 email from

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Petitioner offering the I.G. repayment terms.  ALJ Decision at 2; P. Ex. 2.  The third attachment was a copy of Petitioner’s hearing request.  ALJ Decision at 2; P. Ex. 3. On March 22, 2024, the ALJ issued a written decision, deeming a hearing unnecessary and deciding the case on the written record because neither party had requested an in‑person hearing.  ALJ Decision at 2-3.  Noting no objections, the ALJ admitted all exhibits.  Id. at 2.  The ALJ held that the I.G. properly excluded Petitioner under section 1128(a)(1) of the Act because Petitioner was convicted of a felony offense related to the delivery of an item or service under Medicare or a state health care program.  Id. at 1, 4-6.  The ALJ also concluded that the 20-year exclusion the I.G. imposed was “not unreasonable,” as the I.G. “established the existence of two aggravating factors” and Petitioner “identified no mitigating factors recognized by the regulations.”  Id. at 8-9.  The ALJ found that Petitioner’s “criminal conduct resulted in a staggering loss to the Medicare program – by his own admission, over $1.9 million,” which is “38 times greater than” the regulatory minimum of $50,000 required to constitute an aggravating factor.  Id. at 9.  The ALJ also found that Petitioner engaged in fraudulent billing to Medicare for “almost precisely four years,” which “reflects a sustained lack of integrity, not a momentary lapse of judgment.”  Id. at 10.  The ALJ further found that Petitioner has not identified any of the three circumstances that permit mitigation under 42 C.F.R. § 1001.102(c).  Id. at 7.  The ALJ acknowledged Petitioner’s arguments but explained an ALJ’s lack of power to “hear constitutional claims,” to “consider any grounds to mitigate an extended period of exclusion except the three bases identified at 42 C.F.R. § 1001.102(c),” or to alter the beginning date of an exclusion.  Id. at 7-8.

Petitioner timely appealed the ALJ’s Decision to the Board by means of a “Petition for Reconsideration,” which we accept as a request for review (RR).³  Petitioner asserts three arguments:  a 20-year exclusion “constitutes a ‘de facto’ exclusion for life” due to Petitioner’s age and diabetes; Petitioner “cooperated fully with the federal authorities”; and the exclusion makes Petitioner’s payment of the court-ordered restitution “a physical impossibility,” contrary to governmental interests.  RR at 1-2.

The I.G. responds that the ALJ did not err in determining that Petitioner’s conviction mandated exclusion under section 1128(a)(1) of the Act and that the 20-year exclusion was reasonable.  I.G.’s Br. in Opp. to Appellant’s Appeal (I.G. Resp.) at 4-7.  The I.G. reiterates that the evidence supports the presence of two aggravating factors and Petitioner “provides no basis for reducing the length of his exclusion, because he has not referred to [mitigation] factors specified in” 42 C.F.R. § 1001.102(c).  Id. at 5-7. 

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Standard of Review

The Board has “a limited role in reviewing ALJ decisions in exclusion cases.”  Barry D. Garfinkel, M.D., DAB No. 1572, at 5 (1996), aff’d, No. 3:96-CV-00604 (D. Minn. June 25, 1997).  “Our standard of review of an ALJ decision to uphold the I.G.’s exclusion is set by regulation.”  Kailash C. Singhvi, M.D., DAB No. 2138, at 3 (2007), aff’d, No. 2:08-CV-00659 (E.D.N.Y. Sept. 21, 2009).  “The standard of review on a disputed issue of fact is whether the initial decision is supported by substantial evidence on the whole record.”  42 C.F.R. § 1005.21(h).  “The standard of review on a disputed issue of law is whether the initial decision is erroneous.”  Id.; see also Guidelines – Appellate Review of 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), (Feb. 7, 2012), (last visited July 10, 2024), https://www.hhs.gov/about/agencies/dab/different-appeals-at-dab/appeals-to-board/guidelines/procedures/index.html?language=en.

Analysis

Petitioner does not challenge most of the ALJ’s findings and conclusions, which we therefore summarily affirm.  Petitioner raises no objection to the ALJ’s evidentiary determinations or election to decide the case upon the written record.  It is undisputed that Petitioner’s conviction requires a mandatory exclusion period of at least five years under section 1128(a)(1) of the Act and 42 C.F.R. § 1001.101(a) and that the two aggravating factors in section 1001.102(b)(1)-(2) are established.⁴  Petitioner also does not contest the ALJ’s determination that the exclusion lawfully took effect on August 20, 2023 (20 days after the date of the Notice Letter).  Those determinations are free of error in any event, for the reasons the ALJ stated, and we therefore summarily affirm them without further discussion.  See Laura Leyva, DAB No. 2704, at 12 (2016) (stating that where the excluded individual “does not allege factual or legal error with regard to” the ALJ’s determination, “we therefore summarily affirm it”), aff’d, No. 8:16-CV-1986-JDW-AEP, 2017 WL 2868407 (M.D. Fla. Mar. 29, 2017), report and recommendation adopted, No. 8:16-CV-1986-T-27AEP, 2017 WL 2880125 (M.D. Fla. Apr. 24, 2017).

Petitioner also does not directly challenge the ALJ’s conclusions concerning mitigating factors and the length of the exclusion period but does make assertions arguably relevant to both issues.  First, Petitioner asserts that a 20-year exclusion is a “de facto” exclusion

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for life due to Petitioner’s age and status as “a diabetic patient since early age.”  RR at 1.  Second, Petitioner asserts full cooperation “with the federal authorities, thus avoiding a slow and costly investigation.”  Id.  Third, Petitioner argues a 20-year exclusion would “work against the interest of the U.S. Department of Health” by restricting Petitioner’s income “for the rest of [Petitioner’s] productive life” and rendering it “a physical impossibility to repay the money owed to the United States.”  Id. at 2. 

To address these arguments, we first discuss the potential applicability of any mitigating factors, then assess the reasonableness of the exclusion period.  See 42 C.F.R. § 1001.102(c)(2)-(3).   We conclude that the ALJ Decision rests upon substantial evidence and contains no legal error.  

I. The ALJ’s determination that Petitioner’s 20-year exclusion period is not unreasonable is supported by substantial evidence and free of legal error because Petitioner has not proven any mitigating factors under 42 C.F.R. § 1001.102(c) and equitable relief is unavailable.

The ALJ determined that Petitioner proved no mitigating factors under 42 C.F.R. § 1001.102(c) that could reduce the exclusion period, despite bearing that burden of proof, and that Petitioner’s constitutional and equitable arguments were beyond the ALJ’s authority to address.  ALJ Decision at 7-8.  Petitioner specifies no error by the ALJ, and we see none, in those determinations.

A. Petitioner’s arguments based on age and health considerations do not timely raise or satisfy the 42 C.F.R. § 1001.102(c)(2) mitigating factor, and the Board cannot grant equitable relief.

The mitigating factor in 42 C.F.R. § 1001.102(c)(2) is applicable only when the record in the criminal proceedings “demonstrates that the court determined that the individual had a mental, emotional, or physical condition before or during the commission of the offense that reduced the individual’s culpability.” 

Before the ALJ, Petitioner claimed to have a current diabetic condition, but Petitioner’s status as “a diabetic patient since early age” is newly asserted before the Board.  Compare RFH1, at 1, with RR at 1.  Furthermore, Petitioner does not cite 42 C.F.R. § 1001.102(c)(2) or point to any evidence that the criminal court determined that lifelong diabetes reduced Petitioner’s culpability before or during commission of the offense. 

Accordingly, to the extent Petitioner is attempting to invoke the mitigating factor in 42 C.F.R. § 1001.102(c)(2), that effort is untimely and, in any event, unpersuasive.  See 42 C.F.R. § 1005.21(e) (stating that Board will not consider any issue “that could have been raised before the ALJ but was not”); Waleed Khan, DAB No. 3083, at 10 (2023) (citing illustrative cases); Gracia L. Mayard, M.D., DAB No. 2767, at 6 (2017)(finding

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section 1001.102(c)(2) mitigating factor not established where the excluded individual “did not tell the ALJ that the court had made an explicit or implicit determination that [health] problems had reduced his culpability for the offense of conviction”). 

To the extent Petitioner intends to argue instead that the 20-year exclusion is an inequitable “life sentence,” given Petitioner’s age and health status, that argument is mistaken.  RR at 1.  An excluded individual’s age and health are not permissible grounds for reducing the exclusion period, unless all the criteria in 42 C.F.R. § 1001.102(c) are met.  See, e.g., Samirkumar Shah, M.D., DAB No. 3111, at 13 (2023) (explaining that ALJ’s and Board’s assessment of the record “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)”); Spyros N. Panos, M.D., DAB No. 2709, at 9-10 (2016) (rejecting argument for shorter exclusion period based on excluded individual’s alleged alcoholism, depression, and bladder cancer, where section 1001.102(c)(2) criteria were not met).  “The fact that a lengthened exclusion effectively could operate as a ‘permanent’ exclusion under [the excluded individual’s] circumstances does not mean that a lengthened exclusion period is unlawful or unreasonable.”  Shah at 13.“The ALJ is not empowered to alter federal law based on general notions of equity or fairness.”  Henry L. Gupton, DAB No. 2058, at 12 (2007), aff’d, 575 F. Supp. 2d 874 (E.D. Tenn. 2008).  Also, Petitioner’s comparison of exclusion by the I.G. to a “life sentence” in a criminal case is inapt because, as the ALJ correctly stated, exclusion “is not a criminal sanction and is not intended as a punitive measure.”  See ALJ Decision at 7; Lisa Alice Gantt, DAB No. 2065, at 4 (2007) (“[F]ederal courts and the Board . . . have held that a section 1128 exclusion is civil and remedial rather than criminal and punitive.”) (citing cases).

Thus, the ALJ did not err in determining that no mitigating factor, including the 42 C.F.R. § 1001.102(c)(2) factor, was established.

B. Petitioner’s arguments based on alleged cooperation with law enforcement do not satisfy the mitigating factor of 42 C.F.R. § 1001.102(c)(3).

The mitigating factor in 42 C.F.R. § 1001.102(c)(3) is applicable only where an individual’s cooperation with government officials resulted in one of three circumstances.  Such cooperation can be mitigating only if it resulted in an appropriate law enforcement agency’s: (i) conviction or exclusion of others; (ii) investigation of additional cases or issuance of reports identifying program vulnerabilities or weaknesses; or (iii) imposition against anyone of a civil money penalty or assessment. 

Petitioner has not asserted, and the record does not show, that any of those circumstances apply here.  Petitioner claims to have provided “full access to all files and cooperated with the investigation without hesitation,” P. Ex. 1, at 1, and to have “cooperated fully 

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with the federal authorities, thus avoiding a slow and costly investigation,” RR at 1.  However, Petitioner does not even cite to 42 C.F.R. § 1001.102(c)(3), argue why it applies here, or charge error in the ALJ’s conclusion that Petitioner identified “none of [the section 1001.102(c)] mitigating factors as grounds to reduce his exclusion period,” ALJ Decision at 7.   Petitioner points to no record evidence of cooperation that produced any of the regulation-required results (for example, another person’s conviction or exclusion, or the investigation of additional cases).  

We emphasize that Petitioner “had the burden in the ALJ proceeding to prove the existence of any mitigating factor,” including the 42 C.F.R. § 1001.102(c)(3) “cooperation” factor, but failed to meet that burden.  See Andrew Louis Barrett, DAB No. 2887, at 8 (2018).  Compelling reasons support placing that burden on the individual being excluded.  Stacey R. Gale, DAB No. 1941, at 18 (2004).  That individual, not the I.G., knows the alleged cooperation’s full extent, “including the substance of the information and evidence provided, the names and positions of officials who received the information, the dates and times of the contacts, and the content of any agreements of cooperation with prosecutors.”  Id.  Petitioner did not provide any such information, and mere claims of general cooperation and granting of file access do not establish the requirements for applying section 1001.102(c)(3).  Therefore, no mitigation is established.  See Khan at 10 (holding no mitigating factor established where the excluded individual “provided no details confirming whether [the excluded individual’s] cooperation produced any convictions or other results within the scope of section 1001.102(c)(3)(i)-(iii)”); Rehabilitation Ctr. at Hollywood Hills, LLC, DAB No. 3001, at 14 n.8 (2020) (“The I.G. has indicated that mitigation based on cooperation contemplates an actual, positive outcome; the act of ‘cooperating’ is not itself sufficient.”), appeal dismissed per stipulation, No. 0:20-cv-61357-WPD (S.D. Fla. May 25, 2021); Sushil Aniruddh Sheth, M.D., DAB No. 2491, at 11 (2012) (“To be a mitigating factor, cooperation with law enforcement must have one of the results listed in the regulation, such as others being convicted or excluded.”), appeal dismissed in part & summarily aff’d in part, No. 13-cv-0448, 2014 WL 11813597 (D.D.C. Jan. 10, 2014), appeal dismissed per curiam, No. 14-5179, 2015 WL 3372286 (D.C. Cir. May 7, 2015).

C. Petitioner’s arguments based on alleged detriment to Petitioner’s medical practice, earning capacity, and ability to pay restitution do not invoke any regulatory mitigating factor, and the Board cannot grant equitable relief.

The ALJ correctly concluded that the controlling regulations do not permit “any grounds to mitigate an extended period of exclusion except the three bases identified in 42 C.F.R. § 1001.102(c).”  ALJ Decision at 8.  Section 1001.102(c) “on its face precludes consideration of any other factors in determining whether to reduce an exclusion period of more than five years.”  Robert Seung-Bok Lee, DAB No. 2614, at 9 (2015).  The “ability to pay restitution is not relevant,” because “[n]either the excluded individual’s

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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.”  Shah at 15.  Thus, the ALJ rightly did not address Petitioner’s “claim that preventing him from billing the Medicare program coupled with his advanced age would make it unlikely he could ever repay the amount he stole.”  ALJ Decision at 8. 

Whatever professional and financial consequences Petitioner may face, the ALJ and the Board cannot reduce the length of the exclusion due to such considerations, as “ALJs and the Board have no authority to grant equitable relief.”  Khan at 14; see also Yolanda Hamilton, M.D., DAB No. 3061, at 25 (2022) (rejecting equitable argument that the excluded individual’s diminished employment prospects warranted shorter exclusion); Matthew J. Girardy, DMD, DAB No. 2987, at 6-7 (2020) (rejecting equitable argument that adverse effect on the excluded individual’s practice warranted shorter exclusion); Jeremy Robinson, DAB No. 1905, at 7-8 (2004) (“[T]he Board has repeatedly declined to consider an individual’s age or financial or employment prospects in determining whether an exclusion period was reasonable,” and its “practical consequences to the excluded individual . . . are not mitigating factors for consideration”). 

II. Petitioner’s period of exclusion is not unreasonable.

The ALJ determined that a 20-year exclusion period is not unreasonable based on the existence of two aggravating factors and no mitigating factors.  ALJ Decision at 9. Concerning the aggravating factor in 42 C.F.R. § 1001.102(b)(1), the ALJ summarized that Petitioner’s criminal conduct caused Medicare a “staggering loss” of “over $1.9 million,” which was “38 times greater” than the minimum loss required to qualify as aggravating.  Id.  The ALJ considered it “‘entirely reasonable’ to give significant weight” to such “loss amounts ‘substantially larger’ than the minimum regulatory threshold.”  Id. (quoting Leyva at 9-10).  Concerning section 1001.102(b)(2), the ALJ concluded that Petitioner’s protracted criminal conduct shows extreme untrustworthiness and a “sustained lack of integrity,” and so this aggravating factor properly received “significant weight in determining Petitioner’s period of exclusion.”  Id. at 10 (citing Rosa Velia Serrano, DAB No. 2923, at 9 (2019), and Donald A. Burstein, Ph.D., DAB No. 1865, at 8 (2003)).  As for mitigation, and as discussed above, the ALJ correctly summarized that “Petitioner has identified no mitigating factor recognized by the regulations I could apply to reduce” the exclusion period’s length.  Id. at 9.

Petitioner identifies no legal error, and we see none, in the ALJ’s conclusion, based on the whole record, that, “[u]nder these circumstances, I cannot say excluding Petitioner from participation in Medicare, Medicaid, and all other federal health care programs for 20 years is unreasonable.”  Id. at 10.  The ALJ’s analysis and conclusion were consistent with the ALJ’s responsibility, as the Board has described it, not to “conduct an appellate-type inquiry into how the I.G. arrived at the particular length” of an exclusion but instead to determine whether the evidence before the ALJ “shows that that length is not

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unreasonable.”  Edwin L. Fuentes, DAB No. 2988, at 9 (2020), aff’d, No. 4:20-cv-00026, 2021 WL 4341115, at *9 (W.D. Va. Sept. 23, 2021).  In other words, the ALJ’s role is “not to determine what period of exclusion would be ‘better’ but whether the period imposed by the I.G. was within a reasonable range,” and the ALJ committed no error in carrying out that role in this case.  See Garfinkel at 11.  The ALJ also properly considered “the overarching issue in determining whether the length of an exclusion is reasonable,” which is “whether it is consistent with the statutory purpose of protecting federal health care programs and their beneficiaries.”  Sheth at 11.  The ALJ appropriately recognized that exclusions are remedial and serve to protect federally funded health care programs from untrustworthy individuals, which the I.G. supportably determined Petitioner to be.  ALJ Decision at 7-8 (citing Baldwin Ihenacho, DAB No. 2667, at 10 (2015)).

In our assessment, as in the ALJ’s, 20 years is not an unreasonable exclusion period and is consistent with Board precedent.  While “comparisons with other exclusion cases are not controlling,” we nevertheless have affirmed the 28-year exclusion of a physician who engaged in fraudulent billing that cost Medicare and Medicaid over $1.8 million and “engaged in this fraud for more than five years.”  Robert Hadley Gross, DAB No. 2807, at 2, 8-9 (2017), aff’d, No. 1:17-cv-01801, 2023 WL 5094912 (D.D.C. Aug. 9, 2023).  In affirming the reasonableness of that exclusion, we observed that “[f]raud not only threatens the fiscal integrity of” Medicare and Medicaid but also “harms beneficiaries” of those programs “by wasting resources that could otherwise be used to provide them with needed services.”  Id. at 8.  On the particular facts of this analogous case, we conclude that a 20-year exclusion period is not unreasonable.

Conclusion

We affirm the ALJ Decision.

Endnotes

¹  We draw the factual information in this section from the ALJ Decision and the record before the ALJ.  Nothing in this section is intended to replace, modify, or supplement the ALJ’s findings.

²  Petitioner’s counsel filed a timely hearing request on August 15, 2023 (RFH1) in Case No. C-23-658, and Petitioner filed a separate timely hearing request on August 18, 2023 (RFH2) in Case No. C-23-665.  Both requests raised consistent arguments, and the ALJ ordered both appeals consolidated into Case No. C-23-665.  See Order Consolidating Cases and Summarizing Pre-Hr’g Conference and Setting Briefing Schedule at 2.  When referencing RFH1 and RFH2, we cite only to the unpaginated hearing requests, omitting all cover letters and envelope copies electronically filed with them.

³  Petitioner included with the Petition for Reconsideration a cover page and certified mailing receipt.  For citation purposes, we omit those documents and refer only to the two-page petition itself.

⁴  We note a legal citation error that Petitioner also did not raise as a basis for appeal.  Before both the ALJ and the Board, the I.G. has described Petitioner as subject to “mandatory exclusion pursuant to section 1128(a)(1) of the Act” and thus correctly has cited to 42 C.F.R. § 1001.102(b) as enumerating the applicable aggravating factors.  I.G. Br. to ALJ at 7; see I.G. Resp. at 2-3.  However, the I.G. also mistakenly has cited 42 C.F.R. § 1001.201(b)(2)(i)-(ii), an inapplicable (though largely identical) regulation that specifies mitigating factors only for discretionary, not mandatory, exclusions.  I.G. Br. to ALJ at 7-8, 10; I.G. Resp. at 6.  Even if Petitioner had preserved and raised this issue for appellate review, the record contains no indication that the error misled or prejudiced Petitioner, as neither the I.G.’s July 31, 2023 Notice Letter, nor any of Petitioner’s briefing, nor the ALJ decision itself made any reference to the miscited section 1001.201(b).