Renato Pietro Battisti, DAB CR6551 (2024)

DECISION

Petitioner, Renato Pietro Battisti, is a chiropractor, licensed to practice in New York.  For more than a decade, he submitted false claims to federal workers’ compensation programs.  He was eventually caught, charged with felony health care fraud, and pleaded guilty to the charge.

Based on his conviction, the Inspector General (IG) has excluded him for 21 years from participating in Medicare, Medicaid, and all federal health care programs, as provided for in section 1128(a)(3) of the Social Security Act (Act).

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 21-year exclusion falls within a reasonable range.

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Background

In letters dated November 30, 2023, and June 11, 2024, the IG notified Petitioner that he was excluded from participating in Medicare, Medicaid, and all federal health care programs for a minimum period of 21 years because he had been convicted of a “criminal offense related to fraud, theft, embezzlement, breach of fiduciary responsibility, or other financial misconduct, in connection with the delivery of a health care item or service . . . .”  IG Ex. 1 at 1.  The letter explained that section 1128(a)(3) of the Act authorizes the exclusion.  IG Ex. 1; IG Ex. 2 (an amendment to the notice that added a third aggravating factor).

Petitioner timely requested review.

Exhibits.  The IG has submitted a written brief (IG Br.), seven exhibits (IG Exs. 1-7), and a Reply brief (IG Reply).  Petitioner has submitted his own brief (P. Br.) with no exhibits.

In the absence of any objections, I admit into evidence IG Exs. 1-7.

Hearing on the written record.  The IG indicates that an in-person hearing is not necessary.  IG Br. at 10.

Petitioner, however, claims that an in-person hearing is necessary and that Petitioner “intends to testify regarding mitigating factors, including his involvement and assistance with federal agency investigations involving billing fraud.”  P. Br. at 5.  However, contrary to my initial order and Civil Remedies Division Procedures (CRDP), Petitioner did not provide a copy of the witness’s testimony in the form of an affidavit or written declaration.  Order and Schedule for Filing Briefs and Documentary Evidence at 5 (¶ 7) (February 23, 2024) (“The parties must submit witness testimony in the form of an affidavit or written sworn declaration.”); CRDP at 16 (¶ 16a) (“If the ALJ directed each party to file written direct testimony of its proposed witnesses, the witness list should identify which proposed exhibit contains the written direct testimony of each proposed witness.”).  The witness would therefore not be allowed to testify.  Ilya Kogan, DAB No. 3034 at 3-4 (2021); James Brian Joyner, M.D., DAB No. 2902 at 11-12 (2018).

Because there are no witnesses to be examined or cross-examined, an in-person hearing would serve no purpose, and this case may be decided based on the written record.

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Discussion

1. Petitioner must be excluded from program participation for a minimum of five years because he was convicted, under federal law, of felony health care fraud; he submitted false claims to federal workers’ compensation programs.  Act § 1128(a)(3).1

Under section 1128(a)(3) of the Act, the Secretary of Health and Human Services must exclude an individual who has been convicted under federal or state law of felony fraud, theft, embezzlement, breach of fiduciary responsibility, or other financial misconduct in connection with the delivery of a health care item or service.  42 C.F.R. § 1001.101(c)(1).

Petitioner concedes, as he must, that he was convicted of felony health care fraud and is subject to a five-year exclusion.  P. Br. at 1 n.1; see Order and Schedule for Filing Briefs and Documentary Evidence at 3 (¶ 3) (February 23, 2024).  He was, after all, charged with and convicted of felony healthcare fraud, in violation of 18 U.S.C. § 1347.  IG Exs. 4, 6.

Petitioner’s crime.  Petitioner was a licensed chiropractor, who owned and operated a chiropractic practice, with clinics in several New York locations.  IG Ex. 4 at 3 (¶ 11).  In about 2005, he enrolled his practice in the Office of Workers’ Compensation Programs, a division of the U.S. Department of Labor that administers benefits under the Federal Employees’ Compensation Act, 5 U.S.C. § 8101 et seq.  IG Ex. 4 at 1-3 (¶¶ 1, 12).  The programs provide medical payments and compensation to federal employees who sustain on-the-job injuries.  IG Ex. 4 at 1 (¶ 1).

Between approximately October 2008 and April 2019, Petitioner “engaged in a fraudulent scheme in which he sought unlawfully to enrich himself” by submitting, to the workers’ compensation programs, claims for services that he did not provide and by “upcoding” – a type of medical billing fraud where, in order to receive higher reimbursement, a healthcare provider uses a higher billing code than warranted by the service provided.  IG Ex. 4 at 3-5 (¶¶ 13, 14, 17).

The conviction.  Petitioner was charged with one count of health care fraud, in violation of 18 U.S.C. § 1347.  IG Ex. 4.  He pleaded guilty to the charge.  IG Exs. 5, 6.  On August 31, 2023, the Federal District Court for the Eastern District of New York entered judgment against him.  The Court sentenced Petitioner to three months of monitored home detention, followed by three years of probation.  IG Ex. 6 at 1, 2.  The Court ordered him to complete 200 hours of community service.  IG Ex. 6 at 4.  The Court also

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ordered Petitioner to pay a whopping $950,712.94 in restitution to the Office of Workers’ Compensation Programs.  IG Ex. 6 at 5.

Thus, Petitioner was plainly convicted, under federal law, of felony health care fraud.  See 42 C.F.R. §§ 1001.2, 1001.101(c).  He must therefore be excluded for a minimum period of five years under section 1128(a)(3).  42 C.F.R. § 1001.102(a).

2. Based on the aggravating factors and no mitigating factor, the 21-year exclusion falls within a reasonable range.

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 (2020); 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 three that the IG relies on in this case:  1) the sentence imposed by the court included incarceration; 2) the acts that resulted in the conviction, or similar acts, were committed over a period of one year or more; and 3) the acts that resulted in the conviction, or similar acts, caused a government program or another entity financial losses of $50,000 or more.  42 C.F.R. § 1001.102(b)(1)-(2), (5).  The presence of an aggravating factor or factors, not offset by any mitigating factor or factors, justifies lengthening the mandatory period of exclusion.

I review de novo the duration of an exclusion period longer than the five-year minimum to determine whether it falls within a reasonable range based on any aggravating and mitigating factors and the circumstances underlying those factors.  Yolanda Hamilton, M.D., DAB No. 3061 at 12 (2022) (citing Sushil Aniruddh Sheth, M.D., DAB No. 2491 at 5 (2012)), appeal dismissed in part, summarily affirmed in part, Sheth v. Sebelius, No. CV 13-00448 (BJR), 2014 WL 11813597 (D.D.C. Jan. 10, 2014), appeal dismissed, Sheth v. Burwell, No. 14-5179, 2015 WL 3372286 (D.C. Cir. May 7, 2015).  My evaluation “does not rest on the number of aggravating or mitigating factors or any rigid formula for weighing them, but on a case-specific determination of the weight to be accorded to each factor based on a qualitative assessment of the circumstances surrounding the factors in the case. . . .  [I] may not substitute [my] judgment for that of the IG . . . , who ‘has broad discretion . . . [and] vast experience implementing exclusions.’”  Hamilton, DAB No. 3061 at 12 (citations omitted); Shaun Thaxter, DAB No. 3053 at 26 (2021); Kimberly Jones, DAB No. 3033 at 7 (2021); Sheth, DAB No. 2491 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 (2004) (ALJ review must reflect the deference accorded to the IG by the Secretary).

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

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

Incarceration (42 C.F.R. § 1001.102(b)(5)).  The court sentenced Petitioner to three months of home detention.  IG Ex. 6 at 2.  Petitioner argues that he was not really incarcerated, and, even if he had been incarcerated “in the technical sense of the word,” the length of his incarceration was so minimal that it does not justify a 21-year exclusion.  P. Br. at 2.

Incarceration includes any type of confinement, including house arrest and home confinement.  42 C.F.R. § 1001.2.  Any differences between prison and non-prison confinement are irrelevant for purposes of determining whether a petitioner was incarcerated.  Roji Esha, DAB No. 3076 at 15 (2022); Stacy Ann Battle, D.D.S., DAB No. 1843 (2002).

Generally, longer periods of incarceration are relevant in determining whether a period of exclusion is reasonable.  Eugene Goldman, M.D., DAB No. 2635 at 6 (2015).  However, any period of incarceration justifies increasing the period of exclusion.  See Jeremy Robinson, DAB No. 1905 at 6 (characterizing a nine-month incarceration as “relatively substantial”); Jason Hollady, M.D., DAB No. 1855 at 12 (2002); Stacy Ann Battle, D.D.S., DAB No. 1843 (finding that four months in a halfway house, followed by four months home confinement justifies lengthening the period of exclusion); Brenda Mills, M.D., DAB CR1461 (2006), aff’d, DAB No. 2061 (2007) (finding that six months home confinement justifies increasing the length of exclusion).

Moreover, the length of incarceration must be considered along with the other aggravating factors.  In Laura Leyva, DAB No. 2704 at 11 (2016), for example, the Board weighed the petitioner’s period of incarceration (a weekend in jail followed by eight months of home confinement) with two additional aggravating factors – $216,000 in program losses and conduct lasting more than two years – in determining that the period of exclusion (ten years) was reasonable.

Here, the two additional factors more than justify a significant increase in the length of Petitioner’s exclusion.

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.

In pleading guilty, Petitioner conceded that the acts resulting in his conviction cost the workers’ compensation programs $950,712.94.  IG Ex. 5 at 4 (¶ 6).  Consistent with his admission, the sentencing court ordered him to pay $950,712.94 in restitution.  IG Ex. 6

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at 5.  Restitution has long been considered a reasonable measure of losses.  Awada, DAB No. 2788 at 7; Juan de Leon, Jr., DAB No. 2533 at 5 (2013); Craig Richard Wilder, DAB No. 2416 at 9 (2011).  The Board has characterized amounts substantially greater than the statutory standard as an “exceptionally aggravating factor” that is entitled to significant weight.  Thaxter, DAB No. 3053 at 31-32; Robert Kolbusz, M.D., DAB No. 2759 at 6-7 (2017); Jeremy Robinson, DAB No. 1905; Donald A. Burstein, Ph.D., DAB No. 1865 (2003).  I agree.

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 losses were many times the threshold amount and, by themselves, justify increasing the period of exclusion well beyond the five-year minimum.

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.  Awada, DAB No. 2788 at 8 (“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.”) (quoting Burstein, DAB No. 1865 at 8 (2003)).

Here, the District Court found that Petitioner engaged in his felonious activities from October 2008 through April 2019 – more than a decade.  IG Ex. 6.2  This is a staggering length of time, which, by itself, establishes that Petitioner is not trustworthy and justifies a period of exclusion many times 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); Leyva, DAB No. 2704 at 10 (stating that participation in a conspiracy to defraud Medicare that lasted more than two years “amply demonstrates more than a short-lived

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lapse in integrity”); Vinod Chandrashekhar Patwardham, M.D., DAB No. 2454 at 7 (2012) (finding that a three-year scheme demonstrated an “ongoing lack of integrity”).

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 ha[s] the burden of proving any mitigating factor by a preponderance of the evidence . . . .”  Barry D. Garfinkel, M.D., DAB No. 1572 at 8 (1996) (emphasis added).

No mitigating factors offset the significant aggravating factors present in this case.  Petitioner was convicted of a felony.  No evidence suggests that he had a mental, physical, or emotional condition that reduced his culpability.  He produces no evidence establishing that he cooperated with federal or state officials.

Pointing to his “Cooperation Agreement,” Petitioner insists that he cooperated with law enforcement.  P. Br. at 2.  Notwithstanding the IG’s requests and my granting him multiple extensions of time to gather the documents, Petitioner has not presented any actual evidence of his cooperation.  See DAB E-File Dkt. C-24-223, Docs. # 7, 10.  Nor has he shown that, because of his cooperation, others were convicted or excluded, additional cases were investigated, or a civil money penalty was imposed.  He has therefore failed to establish cooperation as a mitigating factor.  See Devon Rambert-Hairston, DAB No. 3069 at 11-12 (2022); Farzana Begum, M.D., DAB No. 2726 at 13-14 (2016), aff’d, Begum v. Hargan, No. 16 CV 9624, 2017 WL 5624388 (N.D. Ill. Nov. 21, 2017).

A promise to cooperate does not establish a mitigating circumstance.  In Rambert-Hairston, the petitioner produced an actual sentencing transcript in which the court granted the prosecution’s request for a downward departure from the sentencing range based on Petitioner’s “substantial assistance.”  DAB No. 3069 at 11.  The Board found that this evidence did not establish a mitigating factor because it did not establish that others had been convicted or excluded, that additional cases had been investigated, or that civil money penalties had been imposed.  Rambert-Hairston, DAB No. 3069 at 12.  “These conditions are ‘designed to authorize mitigation for significant or valuable cooperation that yielded positive results for the state or federal government,’ such as a ‘new case actually being opened for investigation.’”  Rambert-Hairston, DAB No. 3069 at 12 (quoting Stacey R. Gale, DAB No. 1941 at 10-11 (2004)).

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Petitioner’s unhelpful comparisons to other exclusions.  Petitioner also complains that, compared to two other cases, 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.”  Fuentes, DAB No. 2988 at 15 (citing Karim Maghareh, Ph.D. & BestCare Lab. Servs., LLC, DAB No. 2919 at 28-29 (2018), remanded Maghareh v. Azar, Civil Action No. 4:19-CV-00238 (S.D. Tex. May 8, 2020), on remand Karim Maghareh, Ph.D. & BestCare Lab. Servs., 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).

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.

The cases Petitioner points to here illustrate the prudence of the Board’s observation:

• Petitioner cites Fuentes, where the petitioner was excluded for 15 years, even though the court imposed a longer period of incarceration (24 months vs. three months).  There, however, the program losses considered were a fraction of those incurred here ($243,451.27 vs. $950,712.94), and the duration of the criminal conduct was significantly shorter (31 months vs. 126 months).3  Fuentes, DAB No. 2988 at 12-13.

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• Petitioner also points to the ALJ decision in John Krawczyk, DAB No. CR6223 (2023), where the petitioner was excluded for 14 years.  Although the program losses in that case were greater than those here ($4,003,200), the period of criminal activity was considerably shorter (39 months), and the period of incarceration was much shorter (just one day).  The IG also found two significant mitigating factors:  the petitioner cooperated with law enforcement (which the ALJ characterized as “a strong mitigating factor”) and the petitioner had a mental, emotional, or physical condition that reduced his culpability.  Krawczyk, DAB No. CR6223 at 11-24.

Petitioner’s additional arguments – that he “has made a sincere and concerted effort to ensure that his chiropractic practice remains fully compliant with all state and federal regulations moving forward,” that he has not committed any additional crimes, and that he “has improved himself personally” – are irrelevant.  P. Br. at 2-3.  Putting aside the obvious fact that, at a minimum, all providers and suppliers must comply with the law, I am bound by the statute and regulations and may not alter the IG’s decision to exclude an individual on the ground that he “is a good person or well-thought of in the profession . . . .”  Donna Rogers, DAB No. 2381 at 6 (2011).

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 over ten years that cost federal workers’ compensation programs almost a million dollars.  His crime was serious enough to merit incarceration.  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 21-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.  Cash, DAB No. 1725 at 7 (citing 57 Fed. Reg. 3298, 3321 (1992)).

I find that the 21-year exclusion falls within a reasonable range.