Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD
Civil Remedies Division
Salman Ali, DPT
(OI File No. 5-12-40105-9),
The Inspector General.
Docket No. C-21-8
Decision No. CR5846
The Inspector General (IG) of the U.S. Department of Health and Human Services excluded Petitioner, Salman Ali, from participation in Medicare, Medicaid, and all other federal health care programs for 20 years pursuant to Section 1128(a)(1) of the Social Security Act (Act) (42 U.S.C. § 1320a-7(a)(1)). Petitioner challenges the exclusion. For the reasons stated below, I conclude the IG had a basis for excluding him from program participation, and that the 20-year exclusion period is not unreasonable. I affirm the IG's exclusion determination.
I. Case Background and Procedural History
The IG issued notice to Petitioner on July 31, 2020, that he was being excluded from participation in Medicare, Medicaid, and all federal health care programs for 20 years. IG Ex. 2 at 1.1 The IG cited section 1128(a)(1) of the Act, which mandates exclusion
when an individual is convicted of a criminal offense related to the delivery of an item or service under Medicare or a State health care program. Id. Petitioner timely requested a hearing, and I was designated to hear and decide this case.
I conducted a pre-hearing telephone conference on November 18, 2020, the substance of which I memorialized in my November 24, 2020 Order (Summary Order), and set forth a schedule for submission of arguments and evidence by the parties. The IG submitted a brief (IG Br.) and nine exhibits (IG Exs. 1-9), while Petitioner submitted an informal brief (P. Inf. Br.), a supplemental brief (P. Supp. Br.), and seven exhibits (P. Exs. 1-7). The IG submitted a reply brief (IG Reply).
Neither party objected to the opposing party's proposed exhibits. I therefore admit IG Exs. 1-9 and P. Exs. 1-7 into evidence.
II. A Decision on the Record is Appropriate.
Neither party indicated a hearing was necessary in this matter. P. Inf. Br. at 4; IG Br. at 11. I therefore proceed to a decision based on the record before me. Civ. Remedies Div. P. § 19(d).
The issues in this case are limited to determining if the IG has a basis for excluding Petitioner from participating in Medicare, Medicaid, and all other federal health care programs and, if so, whether the 20-year exclusion imposed by the IG is unreasonable. See 42 C.F.R. § 1001.2007(a)(1).
I have jurisdiction to hear and decide this case. 42 C.F.R. §§ 1001.2007(a)(1)-(2), 1005.2(a); see also 42 U.S.C. § 1320a-7(f)(1).
V. Findings of Fact, Conclusions of Law, and Analysis2
1. Petitioner was convicted of a criminal offense related to the delivery of a health care item or service under the Medicare program requiring exclusion under 42 U.S.C. § 1320a-7(a)(1).
The IG must exclude an individual from participation in federal health care programs if the individual was convicted of a criminal offense related to the delivery of a health care item or service under the Medicare program. 42 U.S.C. § 1320a-7(a)(1). Here, Petitioner
concedes he was convicted of an offense requiring exclusion. P. Inf. Br. at 2; P. Supp. Br. at 1. Nevertheless, because the nature and circumstances of his offense of conviction are relevant to the outcome here, I note them for the record.
On May 14, 2013, the United States government charged Petitioner in the Eastern District of Michigan with one count of health care fraud conspiracy in violation of 18 U.S.C. § 1349. IG Ex. 3. On October 15, 2013, Petitioner pleaded guilty to that charge. IG Ex. 5 at 2. He admitted that beginning in or around October 2005 and continuing until March 2013, he and his wife and co-conspirator, Roohi Ali, operated several businesses that ostensibly provided home health services, but in fact created fictitious therapy files to allow them to bill the Medicare program for home health care visits that never occurred. Id. at 3.
Petitioner admitted he and his co-conspirators provided kickbacks and bribes to recruiters who would induce Medicare beneficiaries to provide billing information and signatures to permit Petitioner through his companies to falsely bill the Medicare program. Id. at 4. Petitioner similarly provided bribes and kickbacks to physicians and other physical therapists to provide necessary medical documentation to allow for the submission of fraudulent bills to the Medicare program. Id. Petitioner admitted that through his criminal conduct he caused the Medicare program to pay $12,089,078.28 in false and fraudulent claims. Id. at 5. On January 16, 2020, the United States District Court for the Eastern District of Michigan (District Court) entered judgment against Petitioner. IG Exs. 6, 9.
The facts admitted to by Petitioner in order to resolve the criminal charge against him clearly establish that Petitioner was convicted of a criminal offense related to the delivery of a health care item or service under the Medicare program requiring exclusion under 42 U.S.C. § 1320a-7(a)(1). See Travers v. Shalala, 20 F.3d 993, 998 (9th Cir. 1994) (affirming conviction for filing fraudulent claims with the Medicaid program is "a program‑related offense" and "such financial misconduct is exactly what Congress sought to discourage" through imposing exclusions).
2. Petitioner must be excluded for a minimum of five years.
Because I have concluded that a basis exists to exclude Petitioner pursuant to 42 U.S.C. § 1320a-7(a)(1), he must be excluded for a minimum of five years. 42 U.S.C. § 1320a-7(c)(3)(B).
3. The IG has established three aggravating factors which together justify exclusion beyond the five-year statutory minimum.
Petitioner disagrees with the IG's identification of aggravating factors in his informal brief, but fails to identify which factors he believes were incorrectly applied. P. Inf. Br. at 2-3. I have nevertheless scrutinized the application of these aggravating factors as the IG bears the burden of establishing they are warranted. 42 C.F.R. § 1005.15(c).
a. The IG established financial loss to a government program of $50,000 or more, as required by 42 C.F.R. § 1001.102(b)(1).
In the plea agreement he entered into in order to resolve the criminal action against him, Petitioner admitted his criminal conduct resulted in a $12,089,078.28 loss by the U.S. Department of Health and Human Services, for which he was responsible. IG Ex. 5 at 8. The District Court ordered him to pay restitution in this amount to the Medicare Trust Fund as part of his sentence. IG Ex. 6 at 6. The Departmental Appeals Board (Board) has recognized that restitution is an appropriate measure to demonstrate program loss. See Summit S. Shah, M.D., DAB No. 2836 at 8 (2017) (citations omitted). The IG has established Petitioner was responsible for considerably more than $50,000 in loss to the Medicare program.
b. The IG established that Petitioner's conviction arose from acts that lasted for a period of one year or more, as required by 42 C.F.R. § 1001.102(b)(2).
Petitioner conceded in his plea agreement with the government that the criminal conspiracy in which he participated, which resulted in his conviction that forms the basis for the IG's exclusion action against him, lasted from approximately October 2005 to March 2013. IG Ex. 5 at 2. The IG has established Petitioner's criminal conduct occurred for over one year.
c. The IG established Petitioner was incarcerated as part of his sentence as required by 42 C.F.R. § 1001.102(b)(5).
As a result of the plea agreement Petitioner made with the government, the District Court rendered judgment against him. IG Ex. 6. As part of that judgment, the District Court imposed a sentence of 32 months' incarceration for Petitioner's admitted criminal conduct. Id. at 2. The IG has established Petitioner's sentence included a period of incarceration.
d. The IG properly applied one mitigating factor.
Petitioner has the burden of proving mitigating factors. 42 C.F.R. § 1005.15(c). Here, the IG concedes the presence of one of the three mitigating factors permitted by the regulations, namely cooperation with federal or state officials resulting in additional action taken against other individuals to protect the integrity of the Medicare program. IG Br. at 6; 42 C.F.R. § 1001.102(c)(3).3 Petitioner does not argue application of the other two mitigating factors to be appropriate here. P. Inf. Br.; P. Supp. Br. I therefore find the IG properly applied one mitigating factor – Petitioner's cooperation with federal or state officials – in determining the period of exclusion.
4. A 20-year exclusion period is not unreasonable.
I must uphold the IG's determination as to the length of exclusion if it is not unreasonable. 42 C.F.R. § 1001.2007(a)(1)(ii). This means that:
[s]o long as the amount of time chosen by the OIG is within a reasonable range, based on demonstrated criteria, the ALJ has no authority to change it under this rule. We believe that the deference § 1001.2007(a)(2) grants to the OIG is appropriate, given the OIG's vast experience in implementing exclusions under these authorities.
57 Fed. Reg. 3298, 3321 (Jan. 29, 1992).
In making my determination, the quality of the aggravating (or mitigating) factors is of greater significance than the mere number of the factors present in a given case. As the Secretary of Health and Human Services stated in the preamble to the final rule establishing the exclusion regulations:
We do not intend for the aggravating and mitigating factors to have specific values; rather, these factors must be evaluated based on the circumstances of a particular case. For example, in one case many aggravating factors may exist, but the subject's cooperation with the OIG may be so significant that it is appropriate to give that one mitigating factor more weight than all of the aggravating. Similarly, many mitigating factors may
exist in a case, but the acts could have had such a significant physical impact on program beneficiaries that the existence of that one aggravating factor must be given more weight than all of the mitigating. The weight accorded to each mitigating and aggravating factor cannot be established according to a rigid formula, but must be determined in the context of the particular case at issue.
57 Fed. Reg. at 3314-15. In determining whether the period of exclusion selected by the IG is not unreasonable, I may not substitute my own judgment for that of the IG. Richard E. Bohner, DAB No. 2638 at 2 (2015) (citations omitted), aff'd, Bohner v. Burwell, No. 15-cv-4088, 2016 WL 8716339 (E.D. Pa. Dec. 2, 2016). Instead, I look to see "whether the period of exclusion imposed by the I.G. was within a reasonable range, based on demonstrated criteria." Craig Richard Wilder, DAB No. 2416 at 8 (2011).
In assessing the reasonableness of the exclusion period selected by the IG, I must consider both mitigating and aggravating factors. Here, the IG appropriately applied three aggravating factors and one mitigating factor, the unique circumstances of which explain the significant period of exclusion selected by the IG.
First, Petitioner's criminal conduct resulted in a staggering loss to the Medicare program – over $12,000,000. IG Ex. 5 at 5. The Board has observed it is "entirely reasonable" to give significant weight to loss amounts substantially larger than the minimum regulatory threshold. Laura Leyva, DAB No. 2704 at 9-10 (2016) (citations omitted). Here, Petitioner's criminal conduct resulted in a loss to the Medicare program amounting to approximately 240 times the regulatory minimum of $50,000 for program loss to be considered an aggravating factor. 42 C.F.R. § 1001.102(b)(1). That Petitioner could participate in a conspiracy targeting the Medicare program and bilk the country's health insurance safety net of this much money reflects a profound level of untrustworthiness to participate as a biller to that program. Hussein Awada, M.D., DAB No. 2788 at 7 (2017) ("[t]he millions of dollars in losses that Petitioner's actions caused . . . merits a substantial increase in the length of his exclusion beyond the minimum period").
The duration of Petitioner's offense signaled a level of culpability and untrustworthiness the IG appropriately considered. The Board has held that criminal conduct lasting more than four years is "a protracted period of criminal conduct" that shows the individual "is extremely untrustworthy." Rosa Velia Serrano, DAB No. 2923 at 9 (2019). By contrast, Petitioner's criminal conduct here continued from approximately October 2005 until approximately March 2013, or well over seven years. IG Ex. 5 at 2. Petitioner's persistent criminal conduct reflects a sustained lack of integrity, not a momentary lapse of judgment. Donald A. Burstein, Ph.D., DAB No. 1865 at 8 (2003) (observing that "the purpose of this aggravating factor 'is to distinguish . . . petitioners whose lapse in
integrity is short-lived from those who evidence a lack of such integrity over a longer period . . . .'"). The IG properly gave this aggravating factor significant weight in determining Petitioner's period of exclusion.
The seriousness of Petitioner's offense is also reflected by the District Court's imposition of a 32-month sentence of incarceration. IG Ex. 6 at 2; 42 C.F.R. § 1001.102(b)(5). Petitioner makes much of the fact the government asked the District Court to reduce his sentence by 55% below the low-end of the recommended sentencing guideline range, see P. Supp. Br. at 10, citing P. Ex. 3 at 2, but he neglects to mention that his criminal offense was so serious that even a 55% reduction from the lowest possible guideline sentence – 108 months – resulted in a recommended sentence of incarceration of 48 months. P. Ex. 3 at 1.
The District Court clearly gave significant weight to Petitioner's cooperation and other relevant mitigating factors not applicable here, lowering his sentence even further to 32 months. But the fact remains that Petitioner's crime was so serious that even after demonstrating extraordinary levels of cooperation, the sentencing court still believed it appropriate to incarcerate Petitioner for nearly three years. A sentence of incarceration for such an offense is a "reasonable proxy . . . for untrustworthiness in the context of deciding how much weight to give the aggravating factor for incarceration." Eugene Goldman, M.D., DAB No. 2635 at 5 (2015). The IG appropriately determined that the sentence of incarceration imposed here, even after reduction for cooperation and other mitigating circumstances, reflected a level of untrustworthiness that demanded a significant period of exclusion.
Petitioner contends the significant cooperation he provided merited greater consideration as a mitigating factor, and should have led the IG to select the minimum period of exclusion permitted by law, five years. P. Supp. Br. at 4-12. He fulsomely explains the nature of his cooperation, pointing out that he made himself fully available to prosecutors to expose and convict "scores" of other bad actors. Id. at 2. He also cites his engagement in "extensive undercover activities" and identifies 18 individuals who were convicted as a result of his cooperation. Id. at 4-5.
Petitioner's cooperation was indeed significant, and I do not understate the impact it had in delivering numerous individuals to justice. However, I cannot ignore the fact that his cooperation occurred after more than seven long years of criminal conduct that caused over $12 million in loss to the Medicare program, and warranted, in the view of the District Court, a significant sentence of incarceration despite that cooperation. Nor can I set aside the fact that Petitioner made no effort to cease his criminal conduct or assist the government until he came to believe the government was in the process of investigating him. P. Hearing Req. at 2; P. Supp. Br. at 3. His cooperation thereafter, however notable, more likely reflects a vigorous sense of self-preservation, not a sudden affliction of integrity. In short, I fully credit Petitioner's efforts at cooperation, which resulted in
substantial success by the government in discovering and prosecuting fellow criminals. But I cannot say the IG unreasonably determined, after consideration of all three aggravating factors and a significant mitigating circumstance, that a 20-year period of exclusion was nevertheless warranted.
Petitioner also points to other exclusion matters in an attempt to show the 20-year period of exclusion selected by the IG here was unreasonable. P. Supp. Br. at 9-12. At the outset, I note that comparison of other exclusion cases and the periods of exclusion selected by the IG in those cases is often an exercise of limited persuasive value, as the weighing of aggravating and mitigating factors is necessarily case-specific. Sushil Aniruddh Sheth, M.D., DAB No. 2491 at 5-6 (2012), citing Goldenheim et al., DAB No. 2268 at 29 (quotation omitted). Nevertheless, the Board has acknowledged that such comparisons can inform my analysis of reasonableness. Id. at 6.
Here, Petitioner cites several cases that he believes demonstrate a lower period of exclusion to be warranted. P. Supp. Br. at 9-12. However, I agree with the IG that these cases are poor comparators. IG Reply at 3-5. Petitioner cites Arie Oren, M.D., DAB CR564 (1999), where the ALJ reduced the period of exclusion from ten to seven years. P. Supp. Br. at 9. But Petitioner Oren's criminal conduct lasted only two years and resulted in $272,000 in restitution, while here, Petitioner participated in a more elaborate criminal conspiracy that lasted over seven years and which he did not terminate until he had reason to believe the government was aware of his crimes. Oren, DAB CR564. Significantly, Petitioner's criminal conduct resulted in a loss to the Medicare program of $12 million, approximately 44 times greater than the loss imputed to Oren. The two cases are simply inapposite.
Petitioner's attempt to compare his case with Dinkar N. Patel, M.D., DAB CR283 (2001) fails because that ALJ in that case found the IG had not proven the presence of one aggravating factor, which would of course necessitate reducing the period of exclusion. The remaining cases cited by Petitioner simply involve much lower loss amounts and smaller periods of incarceration, or result from different bases of exclusion altogether having nothing to do with the false submission of claims to the Medicare program. See Dr. Abdul Abassi, DAB CR390 (1995) (loss amount of $75,000 and a one-year term of incarceration); Steven Herlich, DAB CR197 (1992) ($290,000 loss amount and five years' probation); Keith O. Irby and Michelle P. Irby, R. Ph., DAB CR321 (1994) ($10,000 loss amount, five years' probation); Norman A. Klegon, D.O., DAB CR152 (1991) ($5,482 loss amount and 30-month term of incarceration);4 Bertha K. Krickenberger, R.Ph., DAB CR250 (1993) (improper prescription of narcotics, suspended 18-month term of incarceration); Gerald A. Snider, M.D., DAB CR484 (1997)
(a loss of $241,952, incarceration for a year and a day, and criminal conduct spanning only 20 months).
It is clear Petitioner made no effort to find comparable cases, but instead identified cases where the ALJ opted to reduce the period of exclusion. These citations have no bearing on my determination here, as they simply do not reflect similar aggravating or mitigating circumstances.
My own survey reveals that where a petitioner's criminal conduct has caused a loss comparable to that wrought by Petitioner here, the Board has affirmed substantially longer periods of exclusion selected by the IG. See Sheth, DAB No. 2491 at 7 (discussing ALJ cases involving 50-year periods of exclusion). In Marcellus Jhekwuoba Anunobi, DAB CR2480 (2012), the IG excluded Anunobi for 50 years based on criminal conduct persisting 14 months, a loss amount of $2,220,019.36, and the imposition of a 20-year period of incarceration. In Christopher George Collins, DAB CR2515 (2012), where the petitioner was also convicted for conspiracy to commit health care fraud, the IG excluded Collins for 50 years based on a loss amount of $6,987,500, the duration of Collins' criminal acts committed over 26-27 months, and the imposition of a 63-month sentence of incarceration.
In Wilder, DAB No. 2416, the Board reviewed the impact the mitigating factor of cooperation should have played on the IG's selection of a 35-year period of exclusion. There, Petitioner Wilder caused approximately $4,000,000 in program loss from criminal acts lasting over a period of two years, but provided "extraordinary cooperation" which resulted in the conviction of several confederates. DAB No. 2416 at 10-11. Considering the aggravating and mitigating circumstances, the Board reduced Wilder's period of exclusion to 18 years, strikingly close in range to the 20 years imposed here.5
And in Callie Hall Herpin, DAB CR2333 (2011), the IG imposed a 50-year period of exclusion where Petitioner Herpin was also convicted of conspiracy to commit health care fraud and caused a loss of $12,926,680 to the Medicare program. DAB CR2333 at 1-2. Critically, the IG became aware Herpin cooperated with the government during the pendency of her appeal before an ALJ, but only reduced her period of exclusion from 50 to 45 years. Id. at 2, 5. The smaller reduction in exclusion afforded Herpin suggests the IG found her cooperation less extraordinary than Wilder's, perhaps in comparison to the far greater loss amount she caused compared to the loss caused by Wilder.
Ultimately, the IG has not articulated what she believes the precise value of Petitioner's cooperation to be here. It would perhaps be more helpful to reviewing courts (and less
opaque to excluded individuals) for the IG to simply state the increase in the period of exclusion caused by aggravating factors, and then the reduction in the period of exclusion warranted by any mitigating factors. But the regulations have never required the IG to unshroud the process by which a period of exclusion is determined beyond the mandatory minimum period.
Nevertheless, it is sufficient to note that in other cases with a loss amount resulting from program fraud anywhere near the level caused by Petitioner, the IG has imposed a substantially higher period of exclusion, more than double the 20-year period imposed here. Indeed, even where the loss amount is roughly one-sixth to one-half of the more than $12 million loss Petitioner caused, and the duration of the criminal acts shorter, the IG has seen fit to impose a 50-year period of exclusion. And in cases where a petitioner has demonstrated significant, even extraordinary cooperation as a mitigating factor, neither the Board nor any ALJs have seen fit to reduce the period of exclusion to the mandatory minimum, as Petitioner suggests. Having reviewed other cases with similar aggravating and mitigating circumstances, I conclude the IG acknowledged Petitioner's substantial and profound cooperation as a mitigating factor, and as a result, provided an equally substantial and profound reduction in his period of exclusion.
For these reasons, I conclude that the IG has established the existence and the significant weight of the aggravating factors, and demonstrated she adequately considered Petitioner's significant level of cooperation as a mitigating factor in selecting a 20-year period of exclusion. Petitioner's crime had a substantial financial impact on the Medicare program, occurred over a long period of time, and resulted in his incarceration. His cooperation was a significant mitigating factor, but he did not seek to cooperate with the government or stop committing criminal offenses that victimized the Medicare program until he thought he might be caught. The length of exclusion imposed by the IG is not unreasonable.
I affirm the IG's determination to exclude Petitioner from participating in Medicare, Medicaid, and all other federal health care programs for a period of 20 years.
Bill Thomas Administrative Law Judge
1. Document 11c in the official case file maintained in the Departmental Appeals Board E-file system; for clarity and simplicity, I will cite to the exhibits attached by the parties to their respective briefs by the exhibit numbers indicated by the parties, not the document numbers assigned by E-file.
- back to note 1 2. My findings of fact and conclusions of law appear as numbered headings in bold italic type.
- back to note 2 3. More fully, the regulations permit cooperation to mitigate a period of exclusion where "cooperation with Federal or State officials resulted in—(i) Others being convicted or excluded from Medicare, Medicaid and all other Federal health care programs, [or] (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 [42 C.F.R. Part 1003]." 42 C.F.R. § 1001.102(c)(3).
- back to note 3 4. The lengthy term of incarceration here results from the unlawful manufacture, distribution, prescription, or dispensing of a controlled substance. Petitioner Klegon admitted to illegally prescribing controlled substances in exchange for sexual favors. Klegon, DAB CR152 at 5. The circumstances of that case are even less comparable here than the other cases cited by Petitioner.
- back to note 4 5. Given that he caused a loss over three times greater than the loss caused by Wilder through commission of criminal offenses that lasted over three times longer than those committed by Wilder, who also provided "extraordinary" cooperation, Petitioner is perhaps fortunate the IG did not seek to impose a proportionally greater period of exclusion.
- back to note 5