Nabil Mohsen Mohsen Al-Subari, DAB No. 3162 (2024)

FINAL DECISION ON REVIEW OF ADMINISTRATIVE LAW JUDGE DECISION

Nabil Mohsen Mohsen Al-Subari (Petitioner) appeals a decision by an Administrative Law Judge (ALJ) upholding the determination of the Inspector General (I.G.) to exclude Petitioner from participating in all federal health care programs for 22 years.  See Nabil Mohsen Mohsen Al-Subari, DAB CR6513 (2024) (ALJ Decision). The ALJ held that Petitioner was subject to exclusion under section 1128(a)(1) of the Social Security Act (Act) because of his 2022 federal conviction for health care fraud.  The ALJ further held that a 22-year exclusion – 17 years longer than the statutory mandatory minimum – was not unreasonable given the existence of two aggravating factors relating to his criminal offense and the absence of any legally relevant mitigating factor.

In this appeal, Petitioner chiefly contends that the mitigating factor described in 42 C.F.R. § 1001.102(c)(2) warrants a reduction in the exclusion period.  However, substantial evidence supports the ALJ’s finding that this factor is not present in Petitioner’s case.  Furthermore, Petitioner has not shown that the ALJ erred in concluding a 22-year exclusion is not unreasonable.  For these and other reasons, we affirm the ALJ Decision.

Legal Background

Section 1128(a) of the Act requires the Secretary of Health and Human Services to exclude from participation in any “[f]ederal health care program” individuals who have been convicted of certain types of criminal offenses specified in paragraphs (a)(1) through (a)(4) of that section.  Act §§ 1128(a), 1128B(f) (defining “Federal health care program”).  Exclusions imposed under section 1128(a) are known as “mandatory” exclusions.  The general purposes of a section 1128 exclusion are to protect federal health care programs and their beneficiaries from untrustworthy individuals and to deter health care fraud.  Jeremy Robinson, DAB No. 1905, at 3, 8, 11 (2004).

As permitted by the Act, the Secretary has delegated his statutory exclusion authority to the I.G.  Act § 1128A(j)(2); 48 Fed. Reg. 21,662 (May 13, 1983); 53 Fed. Reg. 12,993

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(Apr. 20, 1988).  The I.G. in turn has issued regulations, codified in 42 C.F.R. Part 1001, implementing section 1128’s provisions.  See 42 C.F.R. § 1001.1.  Those regulations apply to and bind the I.G. in imposing exclusions, and they also apply to and bind ALJs and the Departmental Appeals Board (Board) in reviewing exclusions imposed by the I.G.  Id. § 1001.1(b).

Section 1128(a)(1) of the Act mandates the exclusion of an individual “convicted of a criminal offense related to the delivery of an item or service under [Medicare] or under any State health care program.”¹  For purposes of the exclusion statute, an individual is considered to have been “convicted” of a criminal offense when (among other circumstances) a court has accepted the individual’s guilty plea or entered a judgment of conviction against the individual.  Act § 1128(i)(1), (3).

If the I.G. correctly determines that an individual has been convicted of an offense described in section 1128(a), then, with exceptions not relevant here, the I.G. must exclude the individual from federal health care programs for a period of “not less than five years[.]”  Act § 1128(c)(3)(B).  The I.G. may impose an exclusion longer than the mandatory minimum five years if one or more “aggravating” factors specified in 42 C.F.R. § 1001.102(b) are present.  Two such factors are relevant here:

(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. . . .

(2)  The acts that resulted in the conviction, or similar acts, were committed over a period of one year or more[.]

42 C.F.R. § 1001.102(b)(1), (2).  (We sometimes refer to these aggravating factors as the financial-loss and offense-duration factors.)

If one or more aggravating factors are found to justify an exclusion longer than the mandatory minimum, then certain “mitigating factors” may be “considered as a basis for reducing the period of exclusion to no less than five years.”  42 C.F.R. § 1001.102(c).  Of relevance here, section 1001.102(c)(2) provides that a mitigating factor exists when:

[t]he record in the criminal proceedings, including sentencing documents, 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[.]

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The only facts or circumstances that may be considered “mitigating” for purposes of determining the length of an exclusion, or reviewing an imposed exclusion’s reasonableness, are the factors specified in section 1001.102(c) of the I.G.’s regulations.  42 C.F.R. § 1001.102(c) (enumerating three mitigating factors and indicating that “[o]nly” those factors “may be considered mitigating”); Andrew Louis Barrett, DAB No. 2887, at 7 (2018).

When the I.G. decides to impose an exclusion, it sends written notice of the decision to the excluded individual identifying, among other things, the legal and factual bases for exclusion, the length of the exclusion, and the factors considered, if any, in determining the exclusion’s length.  42 C.F.R. § 1001.2002.  The excluded individual may then challenge the I.G.’s decision by requesting a hearing before an ALJ.  Id. §§ 1001.2007(a)(1), 1005.2(a).

The regulations limit an ALJ’s review of a challenged exclusion to two general issues:  first, whether “[t]he basis for the imposition of the [exclusion] exists”; and second, whether “[t]he length of exclusion [to the extent it exceeds the mandatory minimum period] is unreasonable.”  42 C.F.R. § 1001.2007(a)(1)-(2); Delores L. Knight, DAB No. 2945, at 13 (2019).  The ALJ addresses these issues de novo and in doing so may consider information or evidence that the I.G. did not consider or rely upon in imposing the exclusion.  Shaun Thaxter, DAB No. 3053, at 3 (2021).  Thus, the excluded individual may contend before an ALJ that the exclusion’s length is unreasonable due to the presence of a mitigating factor not considered by the I.G.  Id.

Based on the parties’ documentary evidence, hearing testimony (if any), and other record material, the ALJ issues an “initial decision” that affirms, increases, or reduces the exclusion imposed by the I.G.  42 C.F.R. § 1005.20(a)-(b).  A party dissatisfied with the initial decision may appeal the decision to the Board.  Id. § 1005.21(a).  Board review of the initial decision is, in general, based on the evidentiary record developed before the ALJ.  See id. § 1005.21(f); Gracia L. Mayard, M.D., DAB No. 2767, at 6-8 (2017).  The Board “may decline to review the case, or may affirm, increase, reduce, reverse or remand any . . . exclusion determined by the ALJ.”  42 C.F.R. § 1005.21(g).

Case Background

The following facts are drawn from the record before the ALJ, are largely recounted in the ALJ’s decision, and are undisputed.  On May 25, 2022, in accordance with a written plea agreement, Petitioner pled guilty in a United States district court to a single count of health care fraud, a violation of 18 U.S.C. § 1347.  I.G. Ex. 3; I.G. Ex. 5, at 3-4.  The district court accepted Petitioner’s guilty plea on that date.  I.G. Ex. 5, at 4 (indicating that the court had “accepted [Petitioner’s] oral plea” when entered).

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The plea agreement states that from approximately January 2012 through April 2019, Petitioner, a licensed pharmacist and the owner and pharmacist-in-charge of Dix Family Care Pharmacy, “participated in a scheme to submit fraudulent claims to Medicare, Medicaid, and Blue Cross Blue Shield of Michigan for prescription medications that often were not dispensed.”  I.G. Ex. 3, at 3.  The plea agreement further states that Petitioner “was aware of the scheme to submit fraudulent claims, knew the medication billing should have been reversed, and did nothing to ensure the reversal of billings and as the owner he benefited” from the scheme.  Id.  The plea agreement also states that “[f]rom approximately 2012 through 2019, [Petitioner] caused a loss to Medicare, Medicaid, and Blue Cross Blue Shield of Michigan of at least $1,033,950.”  Id. at 4.  In addition, the plea agreement states that the parties agreed that “for purposes of determining the applicable sentencing guidelines range, the loss amount attributable to [Petitioner’s] conduct [was] $1,033,950.”  Id. at 8.

On September 29, 2022, the district court held a sentencing hearing.  I.G. Ex. 5.  After Petitioner and the government presented their arguments, the court sentenced Petitioner to “six months on home confinement, six months of incarceration,” a term below the range of 37-46 months determined by the court under the United States Sentencing Guidelines.  Id. at 4, 9, 20.  The district court also ordered Petitioner to pay $1,033,950 in restitution to the victims of his offense.  Id. at 23.  The court entered a judgment of conviction reflecting Petitioner’s guilty plea and the elements of his sentence.  I.G. Ex. 4.

On November 30, 2023, the I.G. notified Petitioner that he was being excluded from participation in federal health care programs pursuant to section 1128(a)(1) of the Act because he had been convicted of a criminal offense related to the delivery of an item or service under Medicare or a State health care program.  I.G. Ex. 1.  The notice stated the length of Petitioner’s exclusion as 22 years, effective 20 days from the date of the notice.  Id. at 1; see also 42 C.F.R. § 1001.2002(b).  The notice also stated that 17 years had been added to the statutory minimum exclusion period because of two aggravating factors, namely:  (1) the financial-loss factor in 42 C.F.R. § 1001.102(b)(1); and (ii) the offense-duration factor in section 1001.102(b)(2).  CMS Ex. 1, at 1.  The I.G. noted that “[t]he court ordered [Petitioner] to pay approximately $1,033,900 in restitution” and that his offense “occurred from about January 2012 to about April 2019.”  Id.

Petitioner timely requested a hearing before the ALJ to challenge the exclusion.  The parties then submitted written argument and documentary evidence.  Petitioner conceded that the I.G. lawfully excluded him from participation in federal health care programs for at least five years under section 1128(a)(1) of the Act based on his conviction.  Pet.’s Pre-Hr’g Br. at 1.  Hence, the only issue before the ALJ was whether the exclusion’s length – 22 years – was reasonable in light of factors the ALJ was permitted to consider.  Id. at 12 (requesting that the ALJ find the exclusion’s length “unreasonable”); ALJ Decision at 3.

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In addressing the reasonableness issue, Petitioner did not dispute the existence of the two aggravating factors found by the I.G. but argued that they were entitled to no “significant weight.”  Pet.’s Pre-Hr’g Br. at 11, 12.  Petitioner further contended that the I.G. should have found applicable the mitigating factor in 42 C.F.R. § 1001.102(c)(2).  Id. at 9-11.  In support of the mitigation claim, Petitioner asserted, as he had during the 2022 criminal proceeding, that his commission of health care fraud coincided with a period (beginning in late 2015) of “severe mental and emotional” strain and distraction stemming from his struggle to find and oversee appropriate treatment for his brother’s terminal illness, and from the lengthy period of grieving and mourning that followed his brother’s death in 2017.  Id. at 5-6, 8-10; P. Ex. 3, at 7-9; I.G. Ex. 5, at 17.  Petitioner asserted that these circumstances “prevented” him from exercising “proper oversight” of his pharmacy to prevent or correct the unlawful billing practices that resulted in his criminal prosecution.  Pet.’s Pre-Hr’g Br. at 8, 10, 11.  In addition, Petitioner contended that the “sentencing judge did in fact find that Petitioner’s mental and emotional state was tied to his conduct, and stated as much.”  Id. at 10.  Petitioner claimed the court’s “favorable comments” about him, coupled with the court’s “notable decision to impose a sentence which significantly deviated below the sentencing guidelines demonstrates that Petitioner’s severe mental and emotional condition reduced Petitioner’s culpability.”  Id. at 10-11.  Finally, Petitioner contended that the alleged mitigating factor and his argument that the aggravating factors deserved no significant weight showed that “any exclusion greater than the statutory minimum of [five] years” is not “appropriate.”  Id. at 9-12.

The ALJ Decision

Because neither party proposed to present oral witness testimony, the ALJ found an in-person hearing unnecessary and proceeded to decide the case based on the parties’ written submissions.  ALJ Decision at 2.  The ALJ first determined that Petitioner had been convicted of an offense that subjected him to exclusion under section 1128(a)(1) of the Act, and that Petitioner therefore had to be excluded from all federal healthcare programs for a minimum of five years.  Id. at 4-5.

Next, the ALJ concluded that the I.G. had established the existence of the financial-loss and offense-duration factors that together permitted the I.G. to increase the exclusion period from five to 22 years.  Id. at 5-6.  The ALJ noted that Petitioner had not contested the I.G’s consideration of either aggravating factor, but “only the weight the IG assigned to [them] in arriving at a 22-year exclusionary period.”  Id.  Regarding the financial-loss factor, the ALJ noted that an amount ordered as restitution in a criminal proceeding ($1,033,950 in this case) “has long been considered a reasonable measure of program losses.”  Id. at 9 (citing Board decisions).  Regarding the offense-duration factor, the ALJ found that Petitioner had admitted in his plea agreement that his participation in the fraudulent scheme had spanned approximately seven years (2012 to 2019).  Id. at 6 (citing I.G. Ex. 3, at 3).

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The ALJ next determined that the only mitigating factors that the ALJ could lawfully consider were the ones specified in 42 C.F.R. § 1001.102(c), and that none was applicable or present.  ALJ Decision at 6-8.  The ALJ found that Petitioner had not established the existence of the mitigating factor in section 1001.102(c)(2) because the district court had not made the determination called for by that provision:

Petitioner points to the following statement from the Judge in the District Court’s sentencing transcript in support of his position:

There are many things that happened in your life during this time period where you were not watchful, and even though you knew you weren’t watchful you were not watchful because there were so many other things going on.

Here, the District Court Judge in the underlying proceedings acknowledged that Petitioner’s lack of watchfulness over his pharmacy, of which Petitioner knew was an issue at the time, was due in part to the circumstances surrounding his brother’s illness and passing.  This sentence falls short of evidencing that the District Court determined Petitioner had an emotional or mental condition that reduced his culpability, and I can find no other support that the District Court made such a determination.  I too acknowledge the difficulty of Petitioner’s life circumstances at the time of the commission of his offense and the resulting turmoil he experienced, as well as his remarkable professional achievements, reputation in the community, and the responsibility he shoulders in supporting his immediate and extended family.  But I am prevented under the law from considering any of these facts and circumstances as mitigating factors.

Id. at 7-8 (record citations omitted, italics added).

Finally, the ALJ concluded that the I.G.’s imposition of a 22-year exclusion was not unreasonable in light of “facts pertaining to the applicable aggravating factors.”  Id. at 8 (ALJ’s emphasis omitted).  The ALJ rejected Petitioner’s contention that those factors deserved no or minimal weight, noting that Petitioner’s seven-year participation in the “fraudulent scheme” was “seven times longer than the one-year threshold required for aggravation,” and that Petitioner’s offense “resulted in program losses 20 times the threshold for aggravation, warranting a significant increase in Petitioner’s period of exclusion.”  Id. at 9-10.

Standard of Review

The Board reviews a disputed factual issue arising from an ALJ’s decision to determine whether that decision is “supported by substantial evidence on the whole record.”  42

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C.F.R. § 1005.21(h).  The Board reviews a disputed issue of law to determine whether the ALJ’s resolution of that issue 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 Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)).

Analysis

On appeal, Petitioner does not challenge the ALJ’s conclusion that he is subject to a mandatory minimum five-year exclusion under section 1128(a)(1) of the Act.  Nor does Petitioner contest the ALJ’s conclusion that CMS established the existence of the aggravating factor specified in section 1001.102(b)(1) regarding financial loss to a government agency or program (or to other entities) and the aggravating factor in section 1001.102(b)(2) regarding offense duration.  In addition, Petitioner does not dispute the ALJ’s key subsidiary findings relating to the aggravating factors – namely, that his offense conduct (“acts resulting in [his] conviction, or similar acts”) had caused a financial loss to Medicare, Medicaid, and Blue Cross Blue Shield of Michigan totaling $1,033,950, and that such acts spanned approximately seven years.  We therefore affirm those conclusions and findings without further discussion.  Cf. Diane Marie Krupka, DAB No. 3020, at 5 (2020) (summarily affirming ALJ’s conclusion that petitioner was subject to a mandatory five-year exclusion under section 1128(a)(3) of the Act because petitioner “allege[d] no error by the ALJ” as to that conclusion).

Petitioner appeals only the ALJ’s conclusions that the mitigating factor in 42 C.F.R. § 1001.102(c)(2) does not exist in this case, and that a 22-year exclusion is not unreasonable.  See P. Br. at 1, 2, 4.  As explained below, Petitioner has identified no factual or legal error by the ALJ in reaching those conclusions.  We decline Petitioner’s request that we reduce the 22-year exclusion period to the mandatory minimum five years.

1. Substantial evidence supports the ALJ’s finding that the mitigating factor in 42 C.F.R. § 1001.102(c)(2) does not exist.

As noted, 42 C.F.R. § 1001.102(c)(2) provides that a mitigating factor exists when “[t]he 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” (italics added).  As the italicized phrase makes clear, an ALJ may rely on section 1001.102(c)(2) to reduce the length of a mandatory exclusion to no less than five years when there is “evidence of a judicial determination, made on the record of the [excluded] individual’s criminal proceeding, that a ‘mental, emotional or physical condition before or during the commission of the offense . . . reduced the individual’s culpability.’”  Gracia L. Mayard, M.D. at 7 (italics in original).  Although the requisite judicial determination need not be “explicit,” the ALJ or

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the Board “must nevertheless be able to infer clearly from the evidence of the criminal proceedings that the sentencing court made the . . . determination.”  Yolanda Hamilton, M.D., DAB No. 3061, at 20 (2022) (internal quotation and brackets omitted).

The ALJ found that “[w]hile Petitioner ha[d] provided evidence that he suffered great emotional upset” stemming from his brother’s illness and death, the record of his criminal proceeding does not show that the district court made the reduced-culpability finding required by section 1001.102(c)(2).  ALJ Decision at 7.  Substantial evidence – in particular, the transcript of Petitioner’s September 29, 2022 sentencing hearing – supports the ALJ’s finding.  The hearing transcript shows that in accordance with the federal sentencing statute (18 U.S.C. § 3553), the district court considered various circumstances in determining Petitioner’s sentence, including the “characteristics and nature” of his offense, his history of criminal conduct, his family ties and “standing in the community,” and the degree to which the chosen sentence was necessary to serve the purposes specified in 18 U.S.C. § 3553(a)(2), including deterrence and protection of the community from further crime by Petitioner.  I.G. Ex. 5, at 18-20.  In specifying the  reasons for its sentencing determination, the district court acknowledged Petitioner’s claim that his brother’s illness and death had diverted his attention from running his pharmacy, remarking that “many things . . . happened in your life during this time period where you were not watchful.”  Id. at 18-19.  However, the court did not find that Petitioner had a mental, emotional, or physical condition that reduced his culpability for the criminal conduct to which he had pled guilty.

Petitioner incorrectly suggests that the reduced-culpability finding required by section 1001.102(c)(2) can be inferred from the district court’s imposition of a prison sentence below the recommended range calculated under the United States Sentencing Guidelines.  P. Br. at 7 (asserting that the court’s “decision to impose a sentence which significantly deviated below the sentencing guidelines demonstrate[s] that [Petitioner]’s severe mental and emotional condition reduced his culpability”).  This inference is unreasonable because the federal sentencing statute required the district court to state its reasons for imposing such a sentence.  18 U.S.C. § 3553(c)(2) (requiring that when a federal district court imposes a sentence “outside the range” recommended by the Sentencing Guidelines, the court must “state in open court . . . the specific reason for” doing so); see also United States v. Zobel, 696 F.3d 558, 566 (6th Cir. 2024) (stating that a court must state in open court the specific reason for imposing the chosen sentence, including an explanation for any departure or variation from the range).  The court’s purpose thus was to state the reasons for imposing a diminished sentence, without suggesting (much less determining) that Petitioner had a mental or emotional condition before or while committing the offense that reduced his culpability.  Cf. Marcia C. Smith, DAB No. 2046, at 7-8 (2006) (rejecting argument that a court’s imposition of a prison sentence lighter than the one authorized by state law was based on a finding of reduced culpability because the court “explicitly stated a different rationale for not sentencing [the excluded individual] to an extended period of incarceration”).  The proposed inference is also

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unreasonable because Petitioner did not ask the district court to impose a sentence below the guidelines range based on a claim of reduced culpability.  Instead, Petitioner told the court in his September 23, 2022 Sentencing Memorandum that he was “not denying any responsibility in this matter.”  P. Ex. 3, at 10.  The court in any event regarded the allegations of distracted mental and emotional condition as immaterial to culpability, observing that they were “never offered . . . as an excuse” but only “put . . . out as a factual statement.”  I.G. Ex. 5, at 19; P. Ex. 3 (requesting the imposition of a “non-custodial sentence” in accordance with 18 U.S.C. § 3553(f)(1)-(5) and stating reasons for that request that did not touch on culpability or responsibility for the criminal conduct).

For the foregoing reasons, we affirm the ALJ’s finding that the mitigating factor in section 1001.102(c)(2) is inapplicable.

2. Petitioner identifies no error by the ALJ in concluding that a 22-year exclusion is not unreasonable given two aggravating factors relating to his criminal offense and the absence of any relevant mitigating factor.

Petitioner contends that a 22-year exclusion is unreasonable and the ALJ should therefore have reduced the exclusion period to five years.  P. Br. at 1, 3.  However, Petitioner identifies no legal or factual error by the ALJ in reaching the conclusion that a 22-year exclusion is not unreasonable given the two aggravating factors and the absence of any mitigating factor.

In addressing whether a mandatory exclusion longer than the five-year statutory minimum is unreasonable, “the ALJ’s role is to review the length of an exclusion de novo to determine whether it falls within a reasonable range, given the aggravating and mitigating factors and the circumstances underlying them.”  Roji Esha, DAB No. 3076, at 26 (2022) (internal quotation marks omitted).  “Such an evaluation does not rest on the specific number of aggravating or mitigating factors or any rigid formula for weighing those factors, but rather on a case-specific determination of the weight to be accorded each factor based on a qualitative assessment of the circumstances surrounding the factors in that case.”  Id. (internal quotation marks omitted).  “Importantly, despite this de novo posture, an ALJ may not substitute his or her judgment for that of the I.G. or determine a better exclusion period.”  Id. (internal quotation marks and brackets omitted).  “Rather, the ALJ’s role is limited to considering whether the period of exclusion imposed by the I.G. was within a reasonable range, based on demonstrated criteria.”  Id. (internal quotation marks omitted).

The ALJ applied these decision-making standards, basing her conclusion on a case-specific assessment of the “weight” or gravity of the established aggravating factors.  ALJ Decision at 8-10.  Regarding the financial-loss factor, the ALJ noted that “Petitioner’s conduct resulted in program losses 20 times the threshold for aggravation, warranting a significant increase in Petitioner’s period of exclusion.”  Id. at 9.  Regarding the offense-

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duration factor, the ALJ found that Petitioner’s “participation in the fraudulent scheme . . . [was] seven times longer than the one-year threshold required for aggravation,” that Petitioner’s “long-term engagement in illegal conduct raises concerns about his trustworthiness,” and that she could not find that a 22-year exclusion “falls outside of a reasonable range given the lengthy period of time that Petitioner failed to exercise proper oversight knowing that false bills were being submitted” to the Medicare and Medicaid programs.  Id. at 9-10.

These findings are supported by the record, consistent with Board precedent, and sufficient bases for the ALJ’s conclusion that the imposed exclusion was not unreasonable.  The Board has held that the financial-loss factor is entitled to “significant weight” when the loss amount is “substantially more” than the threshold for applying the factor, as it indisputably is in this case.  Shaun Thaxter at 31; see also Laura Leyva, DAB No. 2704, at 9-10 (2016) (“[I]t is entirely reasonable to consider a program loss amount substantially larger than” the regulatory threshold amount to be “an exceptional aggravating factor to be accorded significant weight.” (internal quotation marks omitted)), aff’d, No. 8:16-cv-1986-T-27AEP, 2017 WL 2880125 (M.D. Fla. Apr. 24, 2017).  Similarly, regarding the offense-duration factor, the Board has held that an ALJ “may reasonably assign significant weight to illegal conduct that occurred for even slightly longer than the one-year threshold.”  Kimberly Jones, DAB No. 3033, at 11 (2021) (internal quotation marks omitted).  Illegal conduct whose duration is significantly longer than the threshold – as Petitioner’s was – shows that the excluded individual is “highly untrustworthy” and deserving of a lengthy enlargement of the statutory minimum exclusion period.  Samirkumar Shah, M.D., DAB No. 3111, at 11 (2023) (affirming 27-year exclusion based in part on the individual’s participation in fraud scheme spanning seven years, a “lengthy” period indicating that the individual was “highly untrustworthy”); Rosa Velia Serrano, DAB No. 2923, at 9 (2019) (characterizing four-year participation in Medicaid fraud as “protracted” and indicative of “extreme[ ]” untrustworthiness), recon. denied, DAB Ruling 2019-2 (April 25, 2019); Laura Leyva, DAB No. 2704, at 10 (stating that participation in the fraud scheme for over two years “amply demonstrates more than a short-lived lapse in integrity”).

Petitioner asserts that the ALJ assigned “disproportionate” weight to the aggravating factors (P. Br. at 4) but does not explain why they show a less serious threat to the integrity of federal health care programs than the ALJ found.  Petitioner’s contention that a 22-year exclusion is unreasonable appears to depend entirely on the alleged, but unproven, existence of the mitigating factor in section 1001.102(c)(2).  See id. at 7 (asserting that the “mitigating factor . . . should be applied to this case and the exclusion term should be reduced to the statutory minimum”), 8 (asserting the decision to impose a 22-year exclusion “fail[ed] to properly consider the mitigating factor” in section 1001.102(c)(2)).

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Petitioner makes other contentions regarding the reasonableness issue, but none persuades the Board that the ALJ erred.  Petitioner implies that no increase in the exclusion beyond five years was justified because the I.G. “cited to only 2 of the 9 aggravating factors” specified in 42 C.F.R. § 1001.102(b).  P. Br. at 5.  However, the “evaluation [of the exclusion’s reasonableness] does not rest on the specific number of aggravating or mitigating factors or any rigid formula for weighing those factors, but rather on a case-specific determination of the weight to be accorded each factor based on a qualitative assessment of the circumstances surrounding the factors in that case.”  Kimberly Jones at 7 (internal quotation marks and citation omitted).  Also, setting aside for the moment the lack of evidence of the existence of the mitigating factor in section 1001.102(c)(2), the proposition that the ALJ or the Board could reduce the 22-year exclusion period to the required minimum five years is tenuous at best because two aggravating factors undisputedly exist and the I.G. applied them to augment the five-year period.  If at least one aggravating factor in section 1001.102(b) is found to exist, the I.G. has authority to extend the mandatory minimum period, as the I.G. did here.  Roji Esha at 16 (“[S]imply by establishing the two aggravating factors at issue – or either of the two – the I.G. was authorized to lengthen [Esha’s] exclusion period beyond five years.”).

Petitioner, arguing for mitigation, in fact complains that the ALJ did not consider the “underlying facts and circumstances” that led the district court to impose a prison sentence “significantly below” the range calculated under the Sentencing Guidelines and to grant him lenient conditions of release.  P. Br. at 3, 4, 8 (urging the Board to reduce the exclusion “based on the unique underlying circumstances” relating to his background, “personal characteristics,” criminal proceeding, and other matters).  However, in assessing the reasonableness of an exclusion longer than the mandatory minimum five years, an ALJ may consider only information relevant to determining the existence or weight of a legally relevant aggravating or mitigating factor.  See Andrew Louis Barrett at 7 (observing that “a circumstance that a court might weigh at criminal sentencing is not necessarily relevant in an administrative appeal of a section 1128(a)(1) exclusion,” and that “an ALJ’s review of the exclusion’s reasonableness must be based only on the aggravating and mitigating factors specified in the IG’s regulations”); Asim A. Hameedi, M.D., DAB No. 3087, at 19-20 (2023) (holding that the circumstances cited by the federal district court in imposing a sentence of imprisonment below the Sentencing Guidelines were not lawful bases to reduce an exclusion because they were “not among the three mitigating factors the regulations permit ALJs and the Board to consider in [their] limited review”), aff’d, No. 23-CV-2654 (HG), 2024 WL 4212061 (E.D.N.Y. Sept. 17, 2024); Waleed Khan, DAB No. 3083, at 9 (2023) (stating that ALJs have no authority to consider factors as mitigating other than those specified in the regulations).  Furthermore, the governing regulations do not recognize personal or professional attributes of the excluded individual (e.g., reputation, character) as mitigating factors.  See Baldwin Ihenacho, DAB No. 2667, at 8 (2015); Angelo D. Calabrese, M.D., DAB No. 2744, at 7 (2016).  Thus, Petitioner does not identify any fact or circumstance found by the district court that constitutes a relevant mitigating factor or serves to diminish the

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weight assigned by the ALJ to the established aggravating factors.

If the court’s imposition of a sentence that included six months of incarceration (I.G. Ex. 5, at 20) has any relevance here, it tends to support, rather than call into question, the reasonableness of the 22-year exclusion.  One aggravating factor is that “[t]he sentence imposed by the court included incarceration.”  42 C.F.R. § 1001.102(b)(5).  “Any period of incarceration can support an increase of the period of exclusion.”  Goldman at 6.  The I.G.’s choice not to cite a particular aggravating factor “does not preclude considering those circumstances in the context of the exclusion statute’s overarching concern of protecting the Medicare program from untrustworthy individuals.”  Sushil Aniruddh Sheth, M.D., DAB No. 2491, at 11 (2012), appeal dismissed in part & summarily affirmed 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); see also Asim A. Hameedi, M.D., DAB No. 3087, at 22 (noting, in upholding exclusion period as determined by I.G., that the record contained “evidence of an additional aggravating factor that the I.G. could have applied but did not apply in setting the length of the exclusion”).  We believe the court’s imposition of a six-month term of incarceration is relevant to Petitioner’s untrustworthiness and supportive of the reasonableness of a 22-year exclusion period.  See Roji Esha at 26 (“[W]hile the [90-day] term of incarceration in [p]etitioner’s sentence was relatively short, the fact that her sentence included a term of incarceration alone serves as evidence of additional untrustworthiness. . . .”).

Petitioner implies that the imposed exclusion constitutes “punishment” for his health care fraud offense (see P. Br. at 7), but it does not.  Although Petitioner might subjectively regard his exclusion as additional punishment for the offense (on top of that imposed by the district court), it is well-established that an exclusion is not a criminal penalty or sanction but rather a civil measure whose purpose is “remedial” – that is, protective – rather than punitive.  Joann Fletcher Cash, DAB No. 1725, at 10 (2000) (noting that courts and the Board have “repeatedly held that a section 1128 exclusion is civil and remedial rather than criminal and punitive”); Donald A. Burstein, Ph.D., DAB No. 1865, at 12 (2003) (noting that the principle is “well-established”).  In enacting section 1128, Congress recognized a purpose distinct from the goals of the criminal law:  that individuals who have been convicted of certain types of criminal offenses pose a threat to the integrity and well-being of federal health care programs and their beneficiaries and that an exclusion serves to minimize that threat.  See Susan Malady, R.N., DAB No. 1816, at 9 (2002) (noting that a provider convicted of an offense described in section 1128(a) was “presumed by Congress to be untrustworthy”); Jeremy Robinson at 3 (discussing Congress’s intent in enacting section 1128); Henry L. Gupton, DAB No. 2058, at 7 (2007) (distinguishing the goals of exclusions and the criminal law), aff’d, 575 F. Supp. 2d 874 (E.D. Tenn. 2008); Andrew Louis Barrett at 6 (stating that “criminal sentencing and administrative exclusions have different objectives”).

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Finally, Petitioner makes an unsupported assertion that a 22-year exclusion is “unnecessary to protect federal health care programs, and draconian in light of the underlying facts and [his] personal characteristics.”  P. Br. at 3.  This assertion merely restates Petitioner’s suggestion, which we have rejected, that circumstances besides those relating to the two established aggravating factors should have informed the ALJ’s assessment of the exclusion’s reasonableness.  The aggravating factors specified in the I.G.’s regulations “reflect the degree or level of [an individual’s] untrustworthiness” and corresponding need to protect federal health care programs.  Jeremy Robinson at 11.  Petitioner identifies no facts or evidence indicating that the two aggravating factors proven in this case are not indicative of substantial untrustworthiness necessitating a lengthy exclusion to protect those programs.

Conclusion

For the reasons stated above, we affirm the ALJ’s decision to sustain the I.G.’s 22-year exclusion of Petitioner from all federal health care programs.

ENDNOTES

¹  The term “State health care program” is defined in the statute to include “a State plan approved under title XIX” of the Act – that is, a state’s federally approved Medicaid program.  Act § 1128(h)(1).