Gary Royce Wisner, DAB CR6514 (2024)

DECISION

Petitioner, Gary Royce Wisner, was a licensed California physician, whose practice included orthopedic surgery, spine surgery, and sports medicine.  He was California’s top biller for specific x-ray-related services.  He was also among the nation’s highest paid providers for standard x-ray imaging.  Inasmuch as he practiced in a county that had a relatively sparse population, his billing practices sparked the interest of officials from the state agency that investigates fraud and abuse in the Medi-Cal program (California’s Medicaid program).  Investigators concluded that Petitioner Wisner had been submitting multiple false claims to the Medicare and Medi-Cal programs.

Petitioner was indicted.  Following a jury trial, he was convicted on ten felony counts of healthcare fraud.  The court sentenced him to two years in prison, followed by five years probation. 

Based on his conviction, the Inspector General (IG) has excluded Petitioner for 20 years from participating in Medicare, Medicaid, and all federal health care programs, as provided for in section 1128(a)(1) of the Social Security Act (Act).

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Petitioner appeals.  He agrees that the IG may exclude him but challenges the length of the exclusion beyond the mandatory five years.  

For the reasons discussed below, I find that the IG properly excluded Petitioner and that the 20-year exclusion falls within a reasonable range. 

Background

In a letter dated December 29, 2023, the IG notified Petitioner that he was excluded from participating in Medicare, Medicaid, and all federal health care programs for a minimum period of 20 years 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.”  The letter explained that section 1128(a)(1) of the Act authorizes the exclusion.  IG Ex. 1.  

Petitioner timely requested review. 

Exhibits.  The IG has submitted a written brief (IG Br.), nine exhibits (IG Exs. 1-9), and a Reply brief (IG Reply).  Petitioner has submitted his own brief (P. Br.) with nine exhibits (P. Exs. 1-9). 

In the absence of any objections, I admit into evidence IG Exs. 1-9 and P. Exs. 1-9.  

Hearing on the written record.  I instructed the parties to indicate, in their briefs, whether an in-person (video) hearing would be necessary and, if so, to explain why, identify any proposed witness, and submit, “in the form of an affidavit or a written sworn declaration,” the witness’s direct testimony.  Order and Schedule for Filing Briefs and Documentary Evidence at 4 (¶ 7) (March 18, 2024) (emphasis added). 

The IG indicates that an in-person hearing is not necessary.  IG Br. at 7-8. 

Petitioner, however, maintains that an in-person hearing is necessary and lists one witness:  Gayle Perry, the bookkeeper for Petitioner’s medical practice.  According to Petitioner, Bookkeeper Perry calculated “true damages” and found “a significantly reduced amount of restitution.”  P. Br. at 10, citing P. Ex. 9. 

Contrary to my order, Petitioner does not submit Bookkeeper Perry’s written declaration, which, by itself, precludes him from presenting the witness. 

More significant, as discussed below, the amount of restitution has already been established by the criminal court.  As discussed below, the court allowed the parties to substitute a negotiated amount of restitution, but it did not find that its original determination as to program damages was incorrect. Petitioner may not use this appeal to attack collaterally the court’s determination.  See 42 C.F.R. § 1001.2007(d).  The

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bookkeeper’s opinions are therefore irrelevant and must be excluded.  42 C.F.R. § 1005.17(c). 

Even if the court’s determination did not resolve the issue, the bookkeeper’s “true damages” calculation is too limited to be of much use.  Her “calculations” reflect only the purported fraudulent billing for the ten of Petitioner’s patients who were named in the criminal proceedings.  As discussed below, in determining program losses, I am not limited to the “acts resulting in the conviction” but may consider “similar acts” as well.  And overwhelming evidence establishes that losses went well beyond those ten individuals. 

Because there are no witnesses offering relevant testimony, an in-person hearing would serve no purpose, and this case may be decided based on the written record. 

Discussion

1. Petitioner must be excluded from program participation for a minimum of five years because he was convicted, under state law, of criminal offenses related to the delivery of services under Medicare and a state health care program.  Act § 1128(a)(1).¹

Under section 1128(a)(1) of the Act, the Secretary of Health and Human Services must exclude an individual who has been convicted under federal or state law 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). 

Petitioner concedes, as he must, that he was convicted of program-related crimes and is subject to a five-year exclusion.  P. Br. at 1-2, 4; Order and Schedule for Filing Briefs and Documentary Evidence at 3 (¶ 3) (March 18, 2024).  He was, after all, charged and convicted on ten counts of felony healthcare insurance fraud, in violation of Cal. Penal Code § 550(a)(5), because he submitted “false and fraudulent claims” to the Medicare and Medi-Cal programs.  IG Exs. 4, 6.  Petitioner was thus plainly convicted under state law of criminal offenses related to the delivery of an item or service under Medicare and a state health care program.  He must therefore be excluded for a minimum period of five years under section 1128(a)(1). 

2. Based on the aggravating factors and no mitigating factor, the 20-year exclusion falls within a reasonable range.

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An exclusion brought under section 1128(a)(1) must be for a minimum period of five years.  Act § 1128(c)(3)(B); 42 C.F.R. § 1001.102(a).  I now consider whether the length of the exclusion, beyond five years, falls within a reasonable range.  See Edwin L. Fuentes, DAB No. 2988 at 8-9; Hussein Awada, M.D., DAB No. 2788 at 5-6 (2017). 

Among the factors that may serve as a basis for lengthening the period of exclusion are the four that the IG relies on in this case:  1) the acts that resulted in the conviction, or similar acts, caused a government program or another entity financial losses 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; 3) the sentence imposed by the court included incarceration; and 4) the individual has been the subject of any other adverse action by any federal, state, or local government agency or board, if the adverse action is based on the same set of circumstances that serves as the basis for imposing the exclusion.  42 C.F.R. § 1001.102(b).  The presence of an aggravating factor or factors, not offset by any mitigating factor or factors, justifies lengthening the mandatory period of exclusion.  

“Simply meeting the threshold for an aggravating factor is a clear indication of untrustworthiness.”  Hussein Awada, M.D., DAB No. 2788 at 10. 

As the following discussion shows, the IG correctly identified the aggravating factors and correctly determined that there are no mitigating factors. 

Program financial loss (42 C.F.R. § 1001.102(b)(1)).  Financial losses of even one dollar over the $50,000 threshold justify extending the length of the period of exclusion.  Fuentes, DAB No. 2988 at 13.  Significant evidence – including the sentencing court’s initial order of restitution – establishes that the losses suffered by the Medicare and Medicaid programs were many times greater than the $50,000 threshold for aggravation. 

In a declaration, written in support of an arrest warrant and the felony complaint, Special Agent Ross Martin reviewed Medicare and Medi-Cal payment records and identified $1,741,295.74 in program losses caused by Petitioner’s fraudulent billing.  IG Ex. 2 at 43 (Ross Decl.).  After Petitioner was convicted, the trial court found that the programs suffered even higher losses and ordered him to pay $787,726.52 in restitution to the Medi-Cal program and $1,388,893.15 to the Medicare program.  P. Ex. 7 at 5. 

The parties to the criminal proceedings subsequently agreed that Petitioner would pay $35,200 in restitution, which the court accepted.  The court documents offer no explanation for the settlement.  IG Ex. 7.  Petitioner now claims that even this amount is too high and points to calculations offered by his bookkeeper, purporting to show that the programs lost a mere $20,000.  P. Ex. 9.  

While an order of restitution may be considered a reasonable measure, it is not the only way to determine program losses.  The regulation explicitly directs me to consider

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“similar acts” as well as the “acts resulting in conviction.”  42 C.F.R. § 1001.102(b)(1).  As the Departmental Appeals Board has explained:  

Although the Board “has long acknowledged that restitution is a measure of program loss,” Hussein Awada, M.D., DAB No. 2788, at 7 (2017), the Board has never held that court-ordered restitution is the only measure of program loss for purposes of section 1001.102(b)(1).  Nor is there any requirement under section 1001.102(b)(1) that the amount of financial loss be adjudicated and established in the underlying criminal proceedings.  The plain language of section 1001.102(b)(1) does not limit application of this aggravating factor to cases where a restitution order has been entered or where the amount of program loss was fully adjudicated and established in court. 

Shawn Thaxter, DAB No. 3053 at 29 (2021). 

I must therefore determine whether the evidence of record supports the IG’s finding of program loss, considering both the criminal court findings and other evidence.  Thaxter, DAB No. 3059 at 29. 

Here, significant evidence establishes that program losses were substantially greater than those associated with the ten patients, whose records Bookkeeper Perry ostensibly reviewed and upon which her estimate is based.  In fact, compelling evidence establishes that, in calculating the fraudulent bills, she limited herself to a fraction of Petitioner’s total submissions to the Medicare and Medi-Cal programs. 

Between January 1, 2012, and December 16, 2016, Petitioner billed the Medicare program approximately $7.9 million for services – primarily x-rays.  The Medicare program paid him approximately $2.4 million.  IG Ex. 2 at 5-6.  During this time, he billed the Medi-Cal program more than $9,034,027.69. and Medi-Cal paid him $1,516,045.31, over half of which were for x-rays.  IG Ex. 2 at 10.  Bookkeeper Perry’s calculations do not even consider or explain these gross amounts.  P. Ex. 9. 

Petitioner ordered a staggering number of x-rays.  For 17 Medi-Cal patients, whose charts Agent Martin reviewed, Petitioner ordered an average of 77 x-rays per patient.  He x-rayed all body parts, not just the problematic areas.  IG Ex. 2 at 11; see, e.g., IG Ex. 2 at 14 (indicating 60 x-rays in a three-month period for Patient AS); IG Ex. 2 at 17 (indicating 140 x-rays in a nine-month period for Patient KC).  The California Medical Board detailed similar findings.  IG Ex. 8 at 12-38 (see discussion below).

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That Petitioner was the state’s top biller for many types of x-ray services is especially significant because he practiced in San Joaquin County, with a population of about 700,000, as opposed to Los Angeles County, with its population of 9,800,000.  IG Ex. 2 at 8.

Considering how much he billed the programs and how long his fraudulent billing continued (see discussion below), the $20,000 amount must represent a fraction of the total fraud.  I therefore find more complete and more reflective of the actual fraud, Agent Martin’s testimony regarding program losses, which he based on program data, and the court’s initial restitution order.  The court may have accepted the parties’ unexplained settlement agreement, but it did not find that that amount represented total program losses nor indicate that its initial calculation was incorrect. 

An exclusion is designed to protect program integrity and program beneficiaries.  In directing me to consider program losses, the regulation recognizes that the amount of loss reflects, in part, the seriousness of the individual’s crime and thus the level of threat he poses to program integrity.  While the process is inexact, so long as the IG reasonably translates the aggravating factor into an increase in the period of exclusion, I must affirm the determination.  That a corrupt practitioner and the schemes in which he participates can cause health care programs substantial losses underscores the importance of excluding the unscrupulous.  Over time, health care programs simply cannot withstand these losses.  See Brandon Michael Coburn, DAB CR5247 at 4 (2019).  

Here, the program losses were many times the threshold amount.  Such losses, by themselves, justify increasing the period of exclusion well beyond the five-year minimum.  See Thaxter, DAB No. 3053 at 31-32; Robert Kolbusz, M.D., DAB No. 2759 at 6-7 (2017); Jeremy Robinson, DAB No. 1905 (2004); Donald A. Burstein, PhD., DAB No. 1865 (2003). 

Duration of criminal conduct (42 C.F.R. § 1001.102(b)(2)).  We consider the length of Petitioner’s participation in criminal activity in order to distinguish the individual whose lapse in integrity is short-lived from those who display a lack of integrity over a longer period of time.  “Participation in, or even knowing but silent acquiescence in, a continuing fraudulent scheme that could be expected to cause repeated misrepresentations and repeated harm over a period of time evidences a continuing lack of integrity.”  Hussain Awada, M.D., DAB No. 2788 at 8. 

The parties disagree about the duration of Petitioner’s criminal conduct.  The IG points to the criminal complaint with the ten felony charges on which Petitioner was convicted.  Those convictions leave no doubt that Petitioner began fraudulently billing the Medi-Cal program as early as January 7, 2013.  IG Ex. 4 at 3 (Count 7).  Incidents of fraudulent

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billing are listed from then until December 6, 2016.  IG Ex. 4 at 2 (Count 1).  Petitioner thus committed his illegal acts for almost four years.²

Moreover, the complaint and convictions establish that, even without considering the totality of Petitioner’s illegal conduct, I could find that his conduct lasted for more than one year based solely on some of the individual counts.  Each count of the complaint charges fraudulent billing for services involving a distinct patient.  For each of five of those patients, Petitioner’s fraudulent billing lasted for more than one year: 

• From July 10, 2015, until July 29, 2016 – more than one year – Petitioner submitted fraudulent claims to the Medi-Cal program for services allegedly provided to patient KC.  IG Ex. 4 at 2 (Count 2).
• From October 28, 2013, until September 23, 2016 – almost three years – he submitted fraudulent claims to the Medicare program for services allegedly provided to patient CG.  IG Ex. 4 at 3 (Count 6).
• From January 7, 2013, until September 9, 2016 – three years and eight months – he submitted fraudulent claims to the Medicare program for services allegedly provided to patient BF.  IG Ex. 4 at 3 (Count 7).
• From November 6, 2013, until February 13, 2015 – two years and three months – he submitted fraudulent claims to the Medicare program for services allegedly provided to patient GM.  IG Ex. 4 at 3 (Count 8). 
• From February 7, 2013, until September 23, 2015 – two years and seven months – he submitted fraudulent claims to the Medicare program for services allegedly provided to patient MB.  IG Ex. 4 at 4 (Count 9).

Petitioner concedes that the criminal complaint “contemplates acts spanning approximately three years” but complains that “there were no specific findings of fact to indicate which portions of Petitioner’s care and treatment were believed to be fraudulent.”  P. Br. at 5.³

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Petitioner points out that no findings indicate that “all care and treatment” he provided during the relevant time period was fraudulent.  P. Br. at 6 (emphasis in original).  For this reason, according to Petitioner, the IG “has not demonstrated that that the allegedly fraudulent conduct spanned more than one year,” and, therefore, the IG may not apply this aggravating factor to lengthen the period of Petitioner’s exclusion.  P. Br. at 6 (emphasis added). 

This is nonsense.  First, Petitioner did not “allegedly” engage in fraudulent conduct.  He was convicted of engaging in fraudulent conduct.  For almost four years, he submitted fraudulent bills, claiming that he provided necessary services to multiple patients.  The IG doesn’t have to establish that everything he did was illegal – presumably, he submitted some legitimate bills.  She must establish that some of his conduct was illegal and that he engaged in that conduct for more than one year.  His felony convictions establish that.  

Petitioner actively engaged in his criminal activities for almost four years (from January 7, 2013, through December 6, 2016).  This is four times the one-year threshold for aggravation and justifies a period of exclusion that is longer than the minimum.  See Rosa Velia Serrano, DAB No. 2923 at 9 (2019) (stating that participation in Medicaid fraud for four years demonstrated “a protracted period of criminal conduct” that showed petitioner was “extremely untrustworthy”), recon. denied, DAB Ruling No. 2019-2 (April 25, 2019); Laura Leyva, DAB No. 2704 at 10 (2016) (stating that participation in a conspiracy to defraud Medicare that lasted more than two years “amply demonstrates more than a short-lived lapse in integrity”); Vinod Chandrashekar Patwardhan, M.D., DAB No. 2454 at 7 (2012) (finding that a three-year scheme demonstrated an “ongoing lack of integrity”). 

Incarceration (42 C.F.R. § 1001.102(b)(5)).  The court sentenced Petitioner to a substantial period of incarceration – two years.  IG Ex. 6.  While any period of incarceration justifies increasing the period of exclusion, the Board has repeatedly held that longer periods of incarceration are relevant in determining whether a period of exclusion is reasonable.  Eugene Goldman, M.D. a/k/a Yevgeniy Goldman, M.D., DAB No. 2635 at 6 (2015).  Generally, the longer the jail time, the longer the exclusion, because a lengthy sentence evidences a more serious offense. 

Petitioner, however, characterizes his two-year jail sentence as insignificant and cites a couple of Board decisions finding that sentences greater than four years are “significant.”

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P. Br. at 6.  But it does not follow that, because a four-year sentence is significant, anything short of that is insignificant.  The Board has repeatedly said otherwise.  See Fuentes, DAB No. 2988 at 12 (characterizing a 24-month incarceration as “a substantial term.”); Jeremy Robinson, DAB No. 1905 at 6 (characterizing a nine-month incarceration as “relatively substantial.”); Jason Hollady, M.D., a/k/a Jason Lynn Hollady, DAB No. 1855 at 12 (2002); Stacy Ann Battle, D.D.S., DAB No. 1843 (2002) (finding that four months in a halfway house, followed by four months home confinement justifies lengthening the period of exclusion); Brenda Mills, M.D., a/k/a Brenda Kluttz, DAB CR1461 (2006), aff’d DAB No. 2061 (2007) (finding that six months home confinement justifies increasing the length of exclusion). 

Moreover, regardless of how the length of incarceration is characterized, it must be considered in light of the other aggravating factors.  In Laura Leyva, DAB No. 2704 at 11, the Board declined to characterize the petitioner’s period of incarceration (a weekend in jail followed by eight months of home confinement) but weighed it with the other aggravating factors – $216,000 in program losses and conduct lasting more than two years – in determining that a ten-year exclusion was reasonable. 

I consider a two-year jail term significant.  It is one of four factors that, considered together, establish that Petitioner is not trustworthy. 

Other adverse actions (42 C.F.R. § 1001.102(b)(9)).  Petitioner was subject to two adverse actions by state medical boards, based on the same set of circumstances that serve as the basis for this exclusion. 

• California.  Petitioner was licensed to practice medicine in California.  On July 23, 2018, the Executive Director of the Medical Board of California filed an “Accusation” against him.  The Accusation reflects Petitioner’s felony conviction and lists multiple, specific instances in which he ordered unnecessary x-rays of eight patients.  The Accusation charges him with gross negligence for repeatedly ordering excessive, non-medically necessary x-rays.  See, e.g., IG Ex. 8 at 12-14 (finding that, although the patient’s chief complaint was left hip pain, Petitioner ordered x-rays of his cervical spine, thoracic spine, a scoliosis film, left knee, left femur, left tibia, right foot, right ankle, and right calcaneus and charging that Petitioner “committed gross negligence in his care and treatment of [the patient] in that [Petitioner] obtained excessive, non-medically necessary and repeated x-rays of areas outside [the patient’s] complaint.”).  The accusation asked that Petitioner’s license to practice medicine be revoked.  IG Ex. 8 at 38.⁴

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On September 2, 2022, the State Board suspended Petitioner’s license to practice.  IG Ex. 8 at 3.  In a stipulated surrender of his license, dated December 12, 2022, Petitioner conceded the factual bases for the charges against him and agreed that they constituted a cause for discipline.  Id. at 7.  On January 23, 2023, the Medical Board of California adopted, as its decision and order, the stipulated surrender, effective January 30, 2023.  Id. at 1. 

• Texas.  In a letter, dated February 22, 2023, the Texas Medical Board noted that Petitioner had been convicted of ten felony counts of healthcare insurance fraud and sentenced to two years incarceration, followed by five years of mandatory supervision.  His license to practice was therefore revoked, effective February 22, 2023.  IG Ex. 9.

Thus, based on the same set of circumstances that serves as the basis for imposing this exclusion, Petitioner was subject to two additional adverse actions by state medical boards, and the IG may apply this factor to extend the period of his exclusion. 

Petitioner, however, claims that, because he voluntarily relinquished his license “with the understanding that his criminal conviction would be sufficient to serve as a basis for the revocation of his medical license,” he was not subject to additional government actions that would justify extending the period of his exclusion.  P. Br. at 7 (emphasis in original).  I find his argument puzzling.  He concedes that he surrendered his California license while an adverse action was pending because he recognized that his criminal conviction established a sufficient basis for the license revocation.  This fits within the definition of an aggravating factor based on an adverse action. 

Petitioner also asserts that his licenses to practice in Alabama and Nevada were not revoked.  I find this irrelevant. 

No mitigating factors.  The regulations consider mitigating just three factors:  1) a petitioner was convicted of three or fewer misdemeanor offenses and the resulting financial loss to the program was less than $5,000; 2) the record in the criminal proceedings demonstrates that a petitioner had a mental, physical, or emotional condition that reduced his culpability; and 3) a petitioner’s cooperation with federal or state officials resulted in others being convicted or excluded, or additional cases being investigated, or a civil money penalty being imposed.  42 C.F.R. § 1001.102(c).  Characterizing the mitigating factor as “in the nature of an affirmative defense,” the Board has ruled that Petitioner has the burden of proving any mitigating factor by a preponderance of the evidence.  Barry D. Garfinkel, M.D., DAB No. 1572 at 8 (1996).

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No mitigating factors offset the significant aggravating factors present in this case.  Petitioner was convicted of felonies.  No evidence suggests that he had a mental, physical, or emotional condition that reduced his culpability.  He did not cooperate with federal or state officials.  

Petitioner’s unhelpful comparisons to other exclusions.  Petitioner also complains that, compared to others, he has been treated more harshly.  As the Board has explained, comparing exclusion periods “is not generally helpful in assessing reasonableness, due in part to the varying mix of factors and wide range of relevant circumstances that may need to be considered in individual cases.”  Edwin L. Fuentes, DAB No. 2988 at 15, citing Karim Maghareh, Ph.D. and BestCare Laboratory Services, DAB No. 2919 at 28-29 (2018), remanded Maghareh v. Azar, Civil Action No. 4:19-CV-00238 (S.D. Tex. Apr. 8, 2020), on remand Karim Maghareh, Ph.D. and BestCare Laboratory Services, LLC, DAB CR5797 (2021); Michael D. Dinkel, DAB No. 2445 at 22 (2012) (such comparisons “are not controlling and of limited utility”), aff’d Dinkel v. Sec’y, United States Dep’t. of Health & Human Servs., No. 6:12-cv-00748 (M.D. Fla. Dec. 13, 2013). 

The Board’s criticism of the petitioner’s approach in Fuentes applies here as well. 

Appellant’s cherry-picked list of ten-year exclusions demonstrates this general observation.  He fails to recognize that some appellants successfully showed a mitigating factor that was considered to reduce the range of exclusion periods that might otherwise have been reasonable.  He does not identify whether the appellants in the listed cases even challenged the reasonableness of the length of the exclusions imposed and, if they did, what arguments or evidence they offered relating to the factors.  In these and other ways, the facts of the cases Appellant cites as similarly situated do not actually demonstrate much comparability (and, as noted, similarities among cases are of limited utility). 

Fuentes, DAB No. 2988 at 15.  See, e.g., Dr. Darren James, D.P.M., DAB No. 1828 (2002) (a 22-year-old case in which the Board found a significant mitigating factor); Mark B. Kabins, M.D., DAB No. 2410 (2011) (a 13-year-old case, brought under section 1128(a)(3), with no aggravating factors presented); Ilya Kogan, DAB No. 3034 (2021) (a case presenting three aggravating factors); Devon Rambert-Hairston, DAB No. 3069 (2022) (a case presenting two aggravating factors).  

Moreover, the Board very recently determined that a 20-year exclusion is reasonable in a case that presented just two aggravating factors:  program losses of about $1.9 million; and criminal acts that occurred from June 2016 until May 2020, just under four years.  Cesar M. Cubano-Martinez, M.D., DAB No. 3142 (2024).  See also Robert Hadley

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Gross, DAB No. 2807 at 2, 8-9 (2017), aff’d, No. 1:17-cv-0801, 2023 WL 5094912 (D.D.C. Aug. 9, 2023) (affirming a 28-year exclusion of a physician whose fraudulent billing caused program losses over $1.8 million and who engaged in fraud for more than five years). 

My role here 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.”  Fuentes, DAB No. 2988 at 8, quoting Sushil Aniruddh Sheth, M.D., DAB No. 2491 at 5 (2012).  Such an evaluation does not rest on the specific number of aggravating or mitigating factors or any rigid formula for weighing those factors; I make a case-specific determination of the weight to be accorded each factor based on a qualitative assessment of the circumstances surrounding the relevant factors.  Yolanda Hamilton, DAB No. 3061 at 12 (2022); Thaxter at 12; Kimberly Jones, DAB No. 3033 at 7 (2021); Sheth at 5.  So long as that period falls within a reasonable range, my role is not to second-guess the IG’s judgment.  Jeremy Robinson, DAB No. 1905 at 5 (ALJ review must reflect the deference accorded to the IG by the Secretary). 

The goal here is to protect federal health care programs and beneficiaries from potential harm.  Joann Fletcher Cash, DAB No. 1725 (2000). 

Petitioner’s crime was one of many that erode the financial viability of the federal and state healthcare programs.  Petitioner engaged in truly egregious conduct for almost four years that cost the Medicare and Medi-Cal programs substantial amounts of money.  His crime was serious enough to merit two years of incarceration.  His California and Texas medical licenses were revoked, with the California Medical Board finding that he committed gross negligence.  Petitioner has shown a lack of integrity and that he poses a significant threat to health care programs and their beneficiaries.  I therefore conclude that the 20-year exclusion falls within a reasonable range. 

Conclusion

The IG properly excluded Petitioner from participating in Medicare, Medicaid, and other federal health care programs.  So long as the period of exclusion is within a reasonable range, based on demonstrated criteria, I have no authority to change it.  Joann Fletcher Cash, DAB No. 1725 at 7, citing 57 Fed. Reg. 3298, 3321 (1992). 

I find that the 20-year exclusion falls within a reasonable range.

Endnotes

¹  My findings of fact/conclusions of law are set forth, in italics and bold, in the discussion captions of this decision.

²  In error, the parties estimate approximately three years of illegal conduct.  IG Br. at 5; P. Br. at 5.  From January 2013 until January 2016 is three years.  The illegal billing continued for another 11 months – until December 2016, which is closer to four years.  

³  In fact, in his written declaration, Special Agent Martin details multiple specific examples of Petitioner’s fraudulent billing over the years.  IG Ex. 2 at 38-43.  He also reports that Medi-Cal claims data showed dramatic increases in Petitioner’s total billing.  In 2014, Petitioner billed the Medi-Cal program approximately $76,000.  In 2015, his billings exceeded $1.8 million.  In 2016, he billed more than $6.7 million.  IG Ex. 2 at
2-3.  In addition, when it revoked Petitioner’s medical license, the Medical Board of California detailed Petitioner’s “excessive,” and “non-medically necessary” x-ray orders.  See IG Ex. 8 (discussed below).

⁴  Based on the medical board’s findings (and Petitioner’s acquiescence), the IG might have added another aggravating factor:  the acts that resulted in the conviction, or similar acts, had a significant adverse physical, mental, or financial impact on one or more program beneficiaries or other individuals.  42 C.F.R. § 1001.101(b)(3).