Victor Clark Kirk, DAB CR6600 (2025)

DECISION

Petitioner, Victor Clark Kirk, is excluded from participating in Medicare, Medicaid, and all federal health care programs pursuant to section 1128(a)(1) of the Social Security Act (Act) (42 U.S.C. § 1320a-7(a)(1)), effective January 18, 2024.  There is a basis for exclusion.  Petitioner’s exclusion for a minimum of five years is required by section 1128(c)(3)(B) of the Act (42 U.S.C. § 1320a-7(c)(3)(B)).  An additional exclusion of 20 years, for a total minimum exclusion of 25 years,1 is not unreasonable based upon the existence of three aggravating factors and no mitigating factors.

Page 2

I. Background

The Inspector General (IG) of the U.S. Department of Health and Human Services notified Petitioner by letter dated December 29, 2023, that he was excluded from participation in Medicare, Medicaid, and all federal health care programs for 25 years.   The IG cited section 1128(a)(1) of the Act as the basis for Petitioner’s exclusion.  The IG stated that the exclusion was based on Petitioner’s conviction in the United States District Court, Middle District of Louisiana (district court), of a criminal offense related to the delivery of an item or service under Medicare or a state health care program.  The IG notified Petitioner that the IG extended the mandatory five-year exclusion to 25 years because Petitioner’s acts that resulted in his2 conviction were intended to cause or caused a financial loss of $50,000 or more to a government agency or program or one or more other entities, the acts for which Petitioner was convicted were committed over one year or more, and the sentence imposed by the district court included incarceration.  IG Exhibit (Ex.) 1 at 1.

Petitioner requested a hearing (RFH) by a letter dated January 7, 2023, that was postmarked February 7, 2024.  On February 26, 2024, the case was assigned to me to hear and decide.  I convened a telephone prehearing conference on April 4, 2024, the substance of which is memorialized in my Prehearing Conference Order and Schedule for Filing Briefs and Documentary Evidence issued on April 8, 2024 (Prehearing Order).

The IG filed a motion to dismiss or, in the alternative, for summary judgment and supporting memorandum on June 12, 2024 (IG Br.) with IG Exhibits 1 through 8.  Because Petitioner did not respond to the IG’s motion, on November 13, 2024, I dismissed this case for abandonment.  But on November 13, 2024, a filing was received from Petitioner.  Petitioner’s filing showed he did not intend to abandon his request for hearing.  Therefore, on November 18, 2024, the November 13, 2024 dismissal order was vacated.  Petitioner’s filing (Departmental Appeals Board Electronic Filing System # 14) is treated as Petitioner’s brief (P. Br.) in response to the IG’s motions.  The IG filed a reply on November 29, 2024 (IG Reply).

Petitioner did not object to my consideration of IG Exhibits 1 through 8 and they are admitted as evidence.  Petitioner attached to his November 13, 2024 filing some documents related to sentence monitoring, the timeline for his prosecution, and a May 4, 2012 email thread.  The documents are considered in support of Petitioner’s argument though they are not relevant and would not be admitted if offered as evidence.  The IG filed with its brief Attachments A through Z and Attachment AA, which are copies of law and cases cited by the IG in the IG brief.  The attachments to the IG brief are not admitted

Page 3

as evidence as they were served upon Petitioner and filed by the IG for the convenience of Petitioner.

II. Discussion

A. Applicable Law

Section 1128(f) of the Act (42 U.S.C. § 1320a-7(f)) establishes Petitioner’s right to a hearing by an administrative law judge (ALJ) and judicial review of the final action of the Secretary of Health and Human Services (the Secretary).

Pursuant to section 1128(a)(1) of the Act, the Secretary must exclude from participation in any federal health care program any individual 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.  A state health care program includes a state Medicaid program.  Act § 1128(h) (42 U.S.C. § 1320a-7(h)).

Pursuant to section 1128(i) of the Act (42 U.S.C. § 1320a-7(i)), an individual is convicted of a criminal offense when:  (1) a judgment of conviction has been entered against him or her in a federal, state, or local court whether an appeal is pending or the record of the conviction is expunged; (2) there is a finding of guilt by a court; (3) a plea of guilty or no contest is accepted by a court; or (4) the individual has entered into any arrangement or program where judgment of conviction is withheld.  The Secretary has promulgated regulations implementing these provisions of the Act.  42 C.F.R. § 1001.101(a), (c).3

Exclusion for a minimum period of five years is mandatory for any individual or entity convicted of a criminal offense for which exclusion is required by section 1128(a) of the Act.  Act § 1128(c)(3)(B) (42 U.S.C. § 1320a-7(c)(3)(B)).  Pursuant to 42 C.F.R § 1001.102(b), an individual’s period of exclusion may be extended based on the presence of specified aggravating factors.  Only if the aggravating factors justify an exclusion of longer than five years, however, are mitigating factors considered as a basis for reducing the period of exclusion to no fewer than five years.  42 C.F.R. § 1001.102(c).

In this proceeding, the standard of proof is a preponderance of the evidence.  42 C.F.R. § 1001.2007(c).  Petitioner bears the burden of proof and the burden of persuasion on any affirmative defenses or mitigating factors, and the IG bears the burden on all other issues.  42 C.F.R. § 1005.15(b), (c); Prehearing Order ¶ 4.  There may be no collateral attack of the conviction that is the basis for the exclusion.  42 C.F.R. § 1001.2007(d).

Page 4

B. Issues

The Secretary has by regulation limited my scope of review to two issues:

Whether the IG has a basis for excluding Petitioner from participating in Medicare, Medicaid, and all other federal health care programs; and

Whether the length of the exclusion is unreasonable.

42 C.F.R. § 1001.2007(a)(1).

C. Findings of Fact, Conclusions of Law, and Analysis

My conclusions of law are set forth in bold text followed by my findings of fact and analysis.

1. Petitioner timely filed his request for hearing, and I have jurisdiction.

There is no dispute that Petitioner’s request for hearing was timely filed.  I conclude that I have jurisdiction pursuant to section 1128(f) of the Act and 42 C.F.R. pt. 1005.

2. Summary judgment is appropriate.

The IG moved to dismiss the request for hearing in this case because Petitioner requested in his request for hearing that the exclusion action be held in abeyance pending appeal of his criminal conviction.  The IG correctly asserts that I have no authority to order that an exclusion be held in abeyance.  My authority upon receipt of a timely request for hearing, is to review whether the IG had a basis to exclude and whether the period of exclusion is reasonable.  42 C.F.R. § 1001.2007(a)(1).  Pursuant to 42 C.F.R. § 1005.2(e)(4), I am required to dismiss a request for hearing that fails to raise an issue that may be addressed at a hearing.  Whether Petitioner’s exclusion should be held in abeyance is not an issue that I may address and I have no authority to issue an order to hold the exclusion in abeyance.  Pursuant to 42 C.F.R. § 1005.4(c)(1)-(4), I have no authority to compel the Secretary or the IG to act.  The Act is also clear that one is convicted and subject to exclusion by the IG when a judgment of conviction is entered, and the filing of an appeal of the conviction does not change the status of the conviction or the authority of the IG to proceed with an exclusion under section 1128(a) of the Act.  Act § 1128(i)(1).  Further, if a conviction is reversed or vacated on appeal, the Secretary has provided by regulation that the exclusion is withdrawn effective the date of the exclusion ensuring that the excluded individual receives the benefit of the favorable appellate ruling.  42 C.F.R.

Page 5

§ 1001.3005(a)(1).4  I conclude dismissal is not required however, because Petitioner’s November 13, 2024 filing raised the issue of whether there are mitigating factors that need to be considered to determine the appropriate period of exclusion.  Because Petitioner has raised an issue that I may consider, it is appropriate to proceed to adjudicate this case.

Pursuant to section 1128(f) of the Act, a person subject to exclusion has a right to reasonable notice and an opportunity for a hearing.  The Secretary has provided by regulation that a sanctioned party has the right to a hearing before an ALJ, and both the sanctioned party and the IG have the right to participate in the hearing.  42 C.F.R. §§ 1005.2-.3.  Either or both parties may choose to waive appearance at an oral hearing and to submit only documentary evidence and written argument for my consideration.  42 C.F.R. § 1005.6(b)(5).  An ALJ may also resolve a case, in whole or in part, by summary judgment.  42 C.F.R. § 1005.4(b)(12).

Summary judgment is appropriate in an exclusion case when there are no disputed issues of material fact and when the undisputed facts, which are clear and not subject to conflicting interpretation, demonstrate that one party is entitled to judgment as a matter of law.  Tanya A. Chuoke, R.N., DAB No. 1721 (2000); David A. Barrett, DAB. No. 1461 (1994); Robert C. Greenwood, DAB No. 1423 (1993); Thelma Walley, DAB No. 1367 (1992); Catherine L. Dodd, R.N., DAB No. 1345 (1992); John W. Foderick, M.D., DAB No. 1125 (1990).  When the undisputed material facts of a case support summary judgment, there is no need for a full evidentiary hearing, and neither party has the right to one.  Surabhan Ratanasen, M.D., DAB No. 1138 (1990); Foderick, DAB No. 1125.  In opposing a properly supported motion for summary judgment, the nonmovant must allege facts that show there is a genuine dispute of material fact that affects the proponent’s prima facie case or that might establish a defense.  The nonmovant may not rely upon mere allegations or denials to defeat a properly supported motion for summary judgment.  To defeat a properly supported motion for summary judgment and proceed to a trial, the nonmovant must show there is a genuine dispute as to a material fact that requires determination by the fact finder.  On summary judgment, the judge does not weigh the evidence or attempt to determine the truth.  Rather, the judge accepts the nonmovant’s evidence as true and draws all permissible inferences in the nonmovant’s favor.  Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-57 (1986).

Page 6

There are no genuine issues of material fact in dispute in this case.  Petitioner does not dispute that he was convicted by a jury of conspiracy to commit health care fraud and multiple counts of health care fraud, which provides the IG a basis for Petitioner’s exclusion pursuant to section 1128(a)(1) of the Act.  Petitioner does not dispute the existence of the three aggravating factors the IG relied upon to extend Petitioner’s period of exclusion to 25 years.  In his request for hearing Petitioner requested that the IG’s exclusion be held in abeyance pending the appeal of his criminal conviction.  RFH.  As already explained, I have no authority to order that Petitioner’s exclusion be held in abeyance.  In his brief, Petitioner argues that there are mitigating facts and circumstances that should be considered.  P. Br. at 1-2 (document page counter).  Petitioner’s arguments must be resolved against him as matters of law.  Accordingly, I conclude that summary judgment is appropriate.

3. Section 1128(a)(1) of the Act requires Petitioner’s exclusion from participation in Medicare, Medicaid, and all other federal health care programs.

a. Facts

The parties were advised by my Prehearing Order ¶ 8 that on summary judgment a fact alleged and not specifically denied may be accepted as true and all evidence will be considered admissible and true absent specific objection to admissibility or accuracy.  The material facts are undisputed.

There is no dispute that Petitioner was charged by a grand jury indictment filed in the district court on September 18, 2019, of one count of conspiracy to commit health care fraud in violation of 18 U.S.C. § 1349, and five counts of health care fraud in violation of 18 U.S.C. § 1347.  The charges alleged that the conspiracy and fraudulent acts occurred beginning in around 2011 and continued through in or around June 2015.  The indictment alleged more specifically that Petitioner and a co-conspirator conspired to and did file with Louisiana Medicaid, false and fraudulent claims for group psychotherapy services provided to school students when such services were medically unnecessary or not provided.  IG Ex. 2 at 11-14.  The indictment alleged that Petitioner and his co‑conspirator received $1,841,527.31 from Medicaid from August 2011 through June 2015.  IG Ex. 2 at 11.

There is no dispute that on September 23, 2022, despite his pleas of not guilty, a jury found Petitioner guilty of the one count of conspiracy and the five counts of healthcare fraud as alleged by the grand jury indictment.  IG Ex. 4.

There is no dispute that on January 18, 2023, the district court entered a judgment finding Petitioner guilty of one count of conspiracy and five counts of health care fraud.  IG Ex. 5 at 1.  Petitioner was sentenced to 82 months in prison, followed by three years of

Page 7

supervised release.  IG Ex. 5 at 2-3.  He was ordered to pay $1,841,527.31 in restitution to Louisiana Medicaid with his co-defendants being jointly and severally liable for the amount.  He was also sentenced to pay a fine of $30,000.  IG Ex. 5 at 6; IG Ex. 8.

b. Analysis

The IG cites section 1128(a)(1) of the Act as the basis for Petitioner’s mandatory exclusion.  The statute provides in relevant part:

(a)  MANDATORY EXCLUSION. – The Secretary shall exclude the following individuals and entities from participation in any Federal health care program (as defined in section 1128B(f)):

(1)  CONVICTION OF PROGRAM-RELATED CRIMES. – Any individual or entity that has been convicted of a criminal offense related to the delivery of an item or service under title XVIII or under any State health care program. 

Act § 1128(a)(1).

Congress has, by the plain language of section 1128(a)(1) of the Act, required the Secretary to exclude from participation in Medicare, Medicaid, and all federal health care programs any individual or entity:  (1) convicted of a criminal offense, whether a misdemeanor or felony; (2) where the offense is related to the delivery of an item or service; and (3) the delivery of the item or service was under Medicare or a state health care program.

The elements that trigger an exclusion under section 1128(a)(1) of the Act are triggered in this case.  Petitioner does not dispute that he was convicted by a jury of one count of conspiracy to commit health care fraud and five counts of health care fraud.  IG Ex. 4.  When the jury convicted Petitioner of the charges in the indictment, the jury was required to have found that the allegations were true beyond a reasonable doubt.  In re Winship, 397 U.S. 358, 364 (Due Process Clause “protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.”)  The district court subsequently entered a judgment of conviction as to the charges based on the jury verdict.  IG Ex. 5.  Accordingly, Petitioner was convicted within the meaning of the Act.  Act § 1128(i)(1)-(2).

Petitioner does not dispute that the charges of which he was convicted clearly alleged he and his co-conspirator submitted false and fraudulent claims to Louisiana Medicaid.  I conclude, based on the undisputed facts, that there is a common-sense connection or

Page 8

nexus between Petitioner’s health care fraud and the delivery of an item or service under the Medicare program.  Saadite A. Green, DAB No. 2940 at 6-7 (2019) (and cases cited therein).

Accordingly, I conclude that all elements that trigger mandatory exclusion pursuant to section 1128(a)(1) of the Act are satisfied and the IG has a basis to exclude Petitioner.  Because I have found that there is a basis for Petitioner’s exclusion pursuant to section 1128(a)(1) of the Act, Congress has mandated his exclusion.  Neither the IG nor I has any discretion not to exclude Petitioner in this case as we are both bound to follow the federal statutes and regulations.  42 C.F.R. § 1005.4(c)(1).

Petitioner argued in his request for hearing that his criminal case is not final because of his appeal to the United States Court of Appeals for the Fifth Circuit.  RFH.  However, even accepting that fact as true for purposes of summary judgment, it is not grounds to set aside or delay Petitioner’s exclusion.  A judgment of conviction was entered against Petitioner by the district court.  Therefore, he was convicted within the meaning of section 1128(i)(1) of the Act.  Section 1128(i)(1) of the Act specifically provides that one is convicted regardless of whether an appeal of the conviction is pending.  Furthermore, the regulations provide adequate relief if Petitioner’s conviction is overturned on appeal in the federal courts.  The IG has provided by regulation that an exclusion will be withdrawn, and the excluded individual reinstated to Medicare, Medicaid, and all federal health care programs retroactive to the date of exclusion if the individual’s conviction is reversed or vacated on appeal.  42 C.F.R. § 1001.3005(a).  I am bound to follow federal statutes and regulations.  42 C.F.R. § 1005.4(c)(1).

4. Pursuant to section 1128(c)(3)(B) of the Act, a five-year period of exclusion is mandatory.

I have concluded that there is a basis to exclude Petitioner pursuant to section 1128(a)(1) of the Act.  Therefore, the IG must exclude Petitioner for a minimum period of five years pursuant to section 1128(c)(3)(B) of the Act.  The IG has no discretion to impose a lesser period, and I may not reduce the period of exclusion to fewer than five years.

The remaining issue is whether it is unreasonable to extend Petitioner’s exclusion by an additional 20 years.  My determination of whether the period of exclusion in this case is unreasonable turns on whether:  (1) the IG has proven that there are aggravating factors; (2) Petitioner has proven that the IG considered an aggravating factor that does not exist or that there are mitigating factors that the IG failed to consider; and (3) the period of exclusion is within a reasonable range.

Page 9

5. Three aggravating factors authorized by 42 C.F.R. § 1001.102(b) are present that justify extending the minimum period of exclusion to 25 years.

The IG notified Petitioner that three aggravating factors are present in this case that justify an exclusion of more than five years:

1. Petitioner’s acts that resulted in his conviction, or similar acts, caused or were intended to cause, a financial loss to a government agency or program of $50,000 or more.
2. The acts for which Petitioner was convicted occurred over a period of one year or more.
3. The sentence imposed by the court included a period of incarceration. 

IG Ex. 1 at 1.  I conclude that each aggravating factor is established by undisputed facts.

Petitioner does not dispute that the district court ordered him to pay restitution of $1,841,527.31 to Louisiana Medicaid.  IG Ex. 5 at 6; IG Ex. 8.  The Board has previously accepted that an amount ordered as restitution constitutes proof of the amount of financial loss.  Jeremy Robinson, DAB No. 1905 at 11 (2004); Craig Richard Wilder, DAB No. 2416 at 9 (2011); Juan de Leon, Jr., DAB No. 2533 at 5 (2013); Laura Leyva, DAB No. 2704 at 9 (2016).  The indictment also specifically alleged that Petitioner and his co-conspirator received $1,841,527.31 from Louisiana Medicaid (IG Ex. 2 at 11) and the jury found Petitioner guilty of the charges beyond a reasonable doubt (IG Exs. 4-5).  The acts of which Petitioner was convicted caused or were intended to cause a loss of $50,000 or more by Louisiana Medicaid.  I conclude that the undisputed evidence establishes the existence of the first aggravating factor established by 42 C.F.R. § 1001.102(b)(1).

Petitioner does not dispute that he was charged and found guilty by a jury beyond a reasonable doubt, and his criminal acts occurred between about August 2011 and June 2015, a period of more than a year.  IG Ex. 2 at 11-14; IG Exs. 4-5.  I conclude that the aggravating factor established by 42 C.F.R. § 1001.102(b)(2) is shown to exist by the undisputed evidence.

It is also undisputed that the district court sentenced Petitioner to incarceration for 82 months, which establishes the existence of the third aggravating factor considered by the IG under 42 C.F.R. § 1001.102(b)(5).  IG Ex. 4 at 2.

Page 10

6. Petitioner has not met his burden to establish by a preponderance of the evidence a mitigating factor authorized by 42 C.F.R. § 1001.102(c).

If any of the aggravating factors authorized by 42 C.F.R. § 1001.102(b) justify an exclusion of longer than five years, as they do in this case, then 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).  The IG did not list, and therefore did not consider, any mitigating factors in deciding to extend Petitioner’s exclusion to 25 years.  IG Ex. 1 at 1.

The only mitigating factors that I am authorized to consider are listed in 42 C.F.R. § 1001.102(c):

(1)  In the case of an exclusion under § 1001.101(a), whether the individual or entity was convicted of three or fewer misdemeanor offenses and the entire amount of financial loss (both actual loss and intended loss) to Medicare or any other Federal, State, or local governmental health care program due to the acts that resulted in the conviction, and similar acts, is less than $5,000;

(2)  The 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; or

(3)  The individual’s or entity’s cooperation with Federal or State officials resulted in –

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

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

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

Petitioner has the burden to prove by a preponderance of the evidence that there is a mitigating factor for me to consider.  42 C.F.R. § 1005.15(c); Prehearing Order ¶ 4.

Page 11

Petitioner argues that I should consider mitigating factors.  P. Br. at 1-2.  I accept Petitioner’s assertions and representations as true for purposes of summary judgment.  However, not one of Petitioner’s asserted mitigating factors is a mitigating factor that the IG or I am authorized to consider under 42 C.F.R. § 1001.102(c).  Therefore, Petitioner has failed to meet his burden to show the existence of a mitigating factor.  I conclude that Petitioner has failed to show any genuine dispute that there is a mitigating factor that may be considered under 42 C.F.R. § 1001.102(c) that the IG failed to consider, even if I accept his allegations as true for purposes of summary judgment.

Petitioner’s arguments could be construed to be that his 25-year exclusion is a cruel and unusual punishment that violates the Constitutional prohibition of such punishment.  U.S. Const. amend. VIII.  Exclusions imposed by the IG are civil sanctions, remedial in nature and not punitive and criminal.  Because exclusions are remedial sanctions, they do not violate the double jeopardy clause or the prohibition against cruel and unusual punishment.  Manocchio v. Kusserow, 961 F.2d 1539 (11th Cir. 1992); Greene v. Sullivan, 731 F. Supp. 838 (E.D. Tenn. 1990); Joann Fletcher Cash, DAB No. 1725 (2000); Douglas Schram, R.Ph., DAB No. 1372 (1992); and Janet Wallace, L.P.N., DAB No. 1326 (1992).5  Arguments that the exclusion provisions are anything but remedial have been found to be without merit.  Manocchio, 961 F.2d at 1541-42; Greene, 731 F. Supp. at 839-40.  Many federal courts have also rejected claims that the Secretary’s exclusion procedures amount to a deprivation of due process, finding no constitutionally protected property or liberty interests.  Rodabaugh v. Sullivan, 943 F.2d 855 (8th Cir. 1991); Lavapies v. Bowen, 883 F.2d 465 (6th Cir. 1989); Hillman Rehab. Ctr. v. U.S. Dep’t. of Health & Human Servs., No. 98-3789 (GEB), slip op. at 16, 1999 WL 34813783, at 16 (D.N.J. May 13, 1999); Travers v. Sullivan, 801 F. Supp. 394, 404‑05 (E.D. Wash. 1992), aff’d, Travers v. Shalala, 20 F.3d 993 (9th Cir. 1994).  Accordingly, I conclude that Petitioner’s possible Constitutional arguments are without merit.

The effective date of exclusion is 20 days after the date of the IG’s notice of exclusion.  42 C.F.R. § 1001.2002(b).

Page 12

7.  Exclusion for 25 years is not unreasonable in this case.

The regulation states that the ALJ must determine whether the length of exclusion is “unreasonable.”  42 C.F.R. § 1001.2007(a)(1).  The Board, however, has made clear that the role of the ALJ in exclusion cases is to conduct a de novo review of the facts related to the basis for the exclusion and the existence of aggravating and mitigating factors identified at 42 C.F.R. § 1001.102 and to determine whether the period of exclusion imposed by the IG falls within a reasonable range.  Juan de Leon, Jr., DAB No. 2533 at 4-5; Craig Richard Wilder, DAB No. 2416 at 8; Joann Fletcher Cash, DAB No. 1725 at 17 n.6.  The Board has explained that, in determining whether a period of exclusion is “unreasonable,” the ALJ is to consider whether such period falls “within a reasonable range.”  Cash, DAB No. 1725 at 17 n.6.  The Board cautions that whether the ALJ thinks the period of exclusion is too long or too short is not the issue.  The ALJ may not substitute his or her judgment for that of the IG and may only change the period of exclusion in limited circumstances.  Juan de Leon, Jr., DAB No. 2533 at 4-5; Craig Richard Wilder, DAB No. 2416 at 8.

In John (Juan) Urquijo, DAB No. 1735 (2000), the Board made clear that, if the IG considers an aggravating factor to extend the period of exclusion and that factor is not later shown to exist on appeal, or if the IG fails to consider a mitigating factor that is shown to exist, then the ALJ may make a decision as to the appropriate extension of the period of exclusion beyond the minimum.  In Gary Alan Katz, R.Ph., DAB No. 1842 (2002), the Board suggested that when it is found that an aggravating factor considered by the IG is not proved before the ALJ, then some downward adjustment of the period of exclusion should be expected absent some circumstances that indicate no such adjustment is appropriate.  Thus, the Board has by these various prior decisions significantly limited my authority under the applicable regulation to judge the unreasonableness of the period of exclusion.

Based on my de novo review, I conclude that a basis for the exclusion exists and that the undisputed evidence established the three aggravating factors the IG considered in determining to impose the 25-year exclusion.  Petitioner has not presented evidence that shows a genuine dispute that the IG failed to consider a mitigating factor authorized by 42 C.F.R. § 1001.102(c) or considered an aggravating factor that did not exist.  I conclude that a period of exclusion of 25 years is in a reasonable range and not unreasonable considering the existence of three aggravating factors and no mitigating factors.  Accordingly, no basis exists for me to reassess the period of exclusion.

Page 13

III. Conclusion

For the foregoing reasons, Petitioner is excluded from participation in Medicare, Medicaid, and all other federal health care programs for a minimum period of 25 years, effective January 18, 2024.