Erik X. Alonso, DAB CR6616 (2025)

DECISION

The Inspector General (IG) of the United States Department of Health and Human Services excluded Erik X. Alonso (Petitioner) from participation in Medicare, Medicaid, and all other federal health care programs for 42 years pursuant to section 1128(a)(1) of the Social Security Act (Act) (42 U.S.C. § 1320a-7(a)(1)).  For the reasons discussed below, it is determined that the IG had a basis to exclude Petitioner from program participation, and a mandatory exclusion must be imposed.  Based on the facts and evidence presented in this case, I find that a 42-year exclusion is not unreasonable.  The IG’s exclusion determination is affirmed.  

I.    Background and Procedural History

By notice letter dated November 30, 2017, the IG informed Petitioner that he was being excluded from participation in Medicare, Medicaid, and all other federal health care programs for a minimum period of 42 years pursuant to section 1128(a)(1) of the Act.  The exclusion was imposed due to Petitioner’s conviction, in the United States District Court for the Southern District of Florida (District Court), “of a criminal offense related to the delivery of an item or service under the Medicare or a State health care program, 

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including the performance of management or administrative services relating to the delivery of items or services, under such programs.”  IG Exhibit (Ex.) 1 at 1.  The IG identified four aggravating factors and one mitigating factor considered in determining the length of Petitioner’s exclusion.  IG Ex. 1 at 2.  

The Civil Remedies Division (CRD) received Petitioner’s request for a hearing on August 30, 2023.  On September 13, 2023, the CRD issued my Standing Pre-Hearing Order (Standing Order) and a letter, at my direction, acknowledging receipt of Petitioner’s hearing request.  The letter notified the parties that a telephone prehearing conference was scheduled for September 26, 2023.  On the date of the prehearing conference, Petitioner appeared pro se and Peter Clark, Esq. appeared on behalf of the IG.  Both parties acknowledged that Petitioner’s request for hearing was untimely filed and agreed to submit motions addressing the issue of timeliness.  

On October 13, 2023, the IG filed a Motion to Dismiss along with nine exhibits (IG Exs. 1-9).  Petitioner filed a Response to the IG’s Motion to Dismiss (P. Resp.) on November 12, 2023, along with two exhibits (P. Exs. 1-2), and objections to the IG’s proposed exhibits.  On May 8, 2024, I issued an order directing the parties to file supplemental briefing with information on the address of the correctional institution where Petitioner was housed.  On May 12, 2024, Petitioner subsequently filed a supplemental brief and P. Exs. 3-9.  The IG filed a Motion to Withdraw Motion to Dismiss on May 13, 2024.  

On July 23, 2024, I issued an Order Granting Inspector General’s Withdrawal of Motion to Dismiss and Setting Schedule for Prehearing Submissions (July 23, 2024 Order).  Among other things, the Order directed the IG to address Petitioner’s argument that because he did not receive the IG’s notice of exclusion, he was not afforded the opportunity (1) to submit information and supporting documentation prior to the IG’s making a final determination regarding the exclusion or (2) to request a waiver of an exclusion as “the sole community practitioner or sole source of essential specialized services in a community.”  P. Resp. at 3; July 23, 2024 Order at 2.  In response, the IG filed a Motion to Stay Proceedings for 60 days in order to permit the IG to assign a new reviewing official to consider Petitioner’s submission de novo and redetermine whether an exclusion was warranted and, if so, its duration.  

On July 31, 2024, I issued an Order Setting Prehearing Conference and Staying Proceedings to allow Petitioner the opportunity to submit documents to the IG for reconsideration.  A second prehearing conference was held on August 27, 2024, Petitioner appeared pro se, and attorney Peter Clark represented the IG. An Order Following Second Prehearing Conference, Lifting Stay, and Setting Briefing Schedule was issued on September 9, 2024 (September 9, 2024 Order).  

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The IG filed notice of Petitioner’s Reconsideration of Exclusion on October 1, 2024.  The reviewing official concluded that the originally proposed 42-year exclusion was appropriate based on the aggravating and mitigating circumstances presented.  IG Ex. 10.  

The IG filed its short form brief (IG Br.) and IG Exs. 10-14 on October 15, 2024.  Petitioner untimely filed a brief (P. Br.) on December 15, 2024.  On December 16, 2024, I issued an Order Accepting Petitioner’s Untimely Prehearing Exchange and Setting Deadline for the IG’s Reply.  

The IG filed a reply brief on December 19, 2024.  

II.    Admission of Exhibits and Decision on the Written Record

The IG indicated that an in-person hearing was not necessary to resolve this matter.  IG Br. at 11.  Petitioner did not address whether he believes that an in-person hearing is necessary.  See P. Br.  However, neither party identified witnesses to provide testimony.  As stated in the September 9, 2024 Order, a hearing will be held only if a party asks to cross-examine a witness for whom the opposing party has provided written direct testimony and the witness’ proposed testimony is found to be relevant and non-cumulative.  September 9, 2024 Order at 3; Civil Remedies Division Procedures § 19(d); see July 23, 2024 Order at 3.  Therefore, a hearing is not necessary, and this matter will be decided on the written record.  

Petitioner objected to the admission and use of IG Exs. 2, 4, and 9.  Petitioner argues that IG Exs. 2 (Petitioner’s indictment) and 4 (Factual basis for plea) are not relevant and they are probative in value.  Petitioner also objected to IG Ex. 9, arguing that the declaration calls for speculation.  I find that IG Exs. 2 and 4 are relevant and material to the issues to be decided in this case.  However, Petitioner’s objection to IG Ex. 9 is sustained.  The declaration is no longer relevant due to the IG’s withdrawal of its Motion to Dismiss.  Therefore, IG Exs. 1-8 and 10-14 and P. Exs. 1-8 are admitted into evidence.  All evidence will be given the proper weight and consideration.  

III.    Issues

The issues to be decided are:  

Whether the IG had a basis to exclude Petitioner from participation in Medicare, Medicaid, and all other federal health care programs under section 1128(a)(1) of the Act.  42 C.F.R. § 1001.2007(a)(1)(i).  

Whether the 42-year exclusion imposed by the IG is unreasonable.  42 C.F.R. § 1001.2007(a)(1)(ii).  

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IV.    Jurisdiction

I have jurisdiction to hear and adjudicate this case.  42 C.F.R. §§ 1001.2007(a)(1), 1005.2; see also 42 U.S.C. § 1320a-7(f)(1).  

V.    Findings of Fact

1. Petitioner was a licensed clinical social worker in the State of Florida.  Petitioner served as the clinical director of St. Theresa Community Mental Health Center (St. Theresa) and R&S Community Mental Health (R&S) (collectively referred to as the “Clinics”).  IG Ex. 2 at 3-4.  St. Theresa and R&S purported to be community mental health centers that offered partial hospitalization programs (PHP) for the treatment of mental illness.  IG Ex. 2 at 2-4.  
2. On May 28, 2015, Petitioner was indicted by a Grand Jury for one count of Conspiracy to Commit Health Care Fraud and Wire Fraud (Count One) in violation of 18 U.S.C. § 13491 ; one count of Conspiracy to Defraud the United States and Pay Health Care Kickbacks in violation of 18 U.S.C. § 371 (Count 2)2 ; and one count of Conspiracy to Make False Statements Relating to Health Care Matters in violation of Title 18 U.S.C. § 371 (Count 5).  IG Ex. 2.  
3. On October 9, 2015, Petitioner signed a plea agreement in which he pleaded guilty to Counts 1 and 5 of the indictment.  IG Ex. 3.  The indictment alleged that from approximately January 2008 through October 2010, Petitioner and his co-conspirators falsified, fabricated, altered, and caused the falsification, fabrication, and alteration of patient documentation to make it appear that Medicare beneficiaries needed, qualified for, and received PHP services, when the services were not medically necessary and not provided.  IG Ex. 2 at 6.  Count 5 of the indictment alleged that Petitioner knowingly and willfully conspired to falsify, conceal, and cover up by any trick, scheme, and device a material fact in connection with the delivery of and payment for health care benefits, items, and services involving Medicare, a health care benefit program.  IG Ex. 2 at 10-11.  
4. Petitioner signed an Agreed Factual Basis for Guilty Plea in which he admitted guilt and detailed his role in the fraudulent scheme.  Petitioner admitted that his primary role in the scheme involved supervising therapists at the Clinics and

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4. overseeing the fabrication of patient files, including group therapy session notes.  IG Ex. 4.  Petitioner admitted to directing and supervising the preparation of fabricated patient records which did not accurately reflect the patients’ statements, physical or mental conditions, or interactions with therapists.  IG Ex. 4 at 2.  In many instances, those records were prepared by unlicensed and unqualified individuals with no medical training.  IG Ex. 4 at 2.  Petitioner also admitted that the Clinics were operated for the purpose of billing the Medicare Program for expensive PHP services that were not medically necessary and/or were not provided.  IG Ex. 4 at 1.  
5. The District Court accepted Petitioner’s guilty plea and adjudicated Petitioner guilty on December 18, 2015.  The District Court sentenced Petitioner to 60 months of imprisonment and three years of supervised release upon release from incarceration.  IG Ex. 5 at 2.  Petitioner was also ordered to perform 200 hours of community service and to pay $26,155,133 in restitution (jointly and severally liable with his co-defendants).  IG Ex. 5 at 5.  
6. On February 21, 2016, the United States Department of Justice filed a Government’s Motion for a Rule 35 Reduction with the District Court in which they recommended a 35% reduction in the length of Petitioner’s imprisonment due to Petitioner’s substantial assistance and cooperation with the government.  IG Ex. 13.3    Petitioner assisted in connection with the trial of his co-defendant Damian Mayol, who was convicted of conspiracy to pay health care kickbacks.  IG Exs. 13, 14.  
7. On April 11, 2016, the District Court granted the government’s Rule 35 motion and reduced Petitioner’s prison sentence to 40 months of incarceration.  IG Ex. 11.  
8. On March 16, 2017, the State of Florida Board of Clinical Social Work, Marriage and Family Therapy, and Mental Health Counseling (Florida Board) permanently revoked Petitioner’s license to practice as a clinical social worker in the State of Florida.  IG Ex. 12.  Pursuant to Fla. Stat. § 456.072(1)(ll), the Florida Board permanently revoked Petitioner’s license due “to being convicted of, or entering a plea of guilty or nolo contendere to, regardless of adjudication, a crime in any jurisdiction that related to health care fraud.”  IG Ex. 12 at 3.  The Florida Board’s order revoking Petitioner’s license stated that the basis for the revocation was that Petitioner was adjudicated guilty, in the District Court, “to one count of Conspiracy to Commit Health Care Fraud and Wire Fraud . . . and one count of Conspiracy to Make False Statements Relating to Health Care Matters . . . .”  

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8. IG Ex. 12 at 6 (findings of fact in the Administrative Complaint incorporated into the Florida Board’s license revocation order).  

VI.    Legal Authorities

The Secretary of the United States Department of Health and Human Services (Secretary) shall exclude an individual from participation in Medicare, Medicaid, and all other federal health care programs if that individual has been convicted of a criminal offense related to the delivery of an item or service under Medicare or any state health care program.  42 U.S.C. § 1320a-7(a)(1).  The Act requires a minimum exclusion period of five years when the exclusion is mandated under section 1320a-7(a).  42 U.S.C. § 1320a-7(c)(3)(B).  

In exclusion cases, the IG has the burden of proving the basis for the exclusion and the existence of any aggravating factors.  42 C.F.R. § 1005.15(c); Standing Order ¶ 6.  Petitioner has the burden of proving any affirmative defenses or factors to mitigate the length of the exclusion if aggravating factors have been established.  42 C.F.R. § 1001.102(c); Standing Order ¶ 6.  The standard of proof is a preponderance of the evidence, which means a fact is proven if the evidence shows that it is more likely true than not true.  42 C.F.R. §§ 1001.2007(c), 1005.15(d).  In this case, the IG must prove that Petitioner was convicted of an offense related to the delivery of an item or service under Medicare or a state health care program.  

An excluded individual may request a hearing before an administrative law judge (ALJ), but only on the issues of whether the IG had a basis for the exclusion and whether an exclusion longer than the required minimum period is unreasonable in light of any applicable aggravating and mitigating factors.  42 C.F.R. §§ 1001.2007(a), 1005.2(a).  

VII.     Analysis and Conclusions of Law

1.    Petitioner was convicted of a criminal offense related to the delivery of an item or service under the Medicare program, which subjects him to a mandatory exclusion from all federal health care programs for a minimum of five years.  

In order to prevail, the IG must prove that Petitioner was convicted of a criminal offense related to the delivery of an item or service under Medicare or a state health care program.  Under the Act, an individual is considered to have been convicted of a criminal offense “when a judgment of conviction has been entered against the individual or entity by a Federal, State, or local court, regardless of whether there is an appeal pending or whether the judgment of conviction or other record relating to criminal conduct has been expunged” or when “a plea of guilty or nolo contendere by the individual or entity has been accepted by a Federal, State, or local court.”  Act § 1128(i)(1), (3) (42 U.S.C. 

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§ 1320a-7(i)(1), (3)); see also 42 C.F.R. § 1001.2 (paragraphs (a) and (c) under the definition of “Convicted”).  The evidence shows, and Petitioner does not dispute, that he was convicted of conspiracy to commit health care fraud and conspiracy to make false statements related to healthcare matters.  IG Ex. 5; P. Br. at 1.  The  District Court accepted Petitioner’s guilty plea and sentenced him on December 18, 2015.  IG Ex. 5; P. Br. at 2.  Petitioner is not contesting the basis of the exclusion but argues that the length of the exclusion is unreasonable.  P. Br. at 1.  

Next, to prove that Petitioner’s conviction was related to the delivery of an item or service under Medicare, the IG must show that there is a nexus between the offense and the delivery of an item or service under Medicare.  The Departmental Appeals Board (Board) has repeatedly held that the phrase “related to” within the context of section 1128(a)(1) requires only that a common sense nexus exist between the offense and the delivery of an item or service under Medicare.  Summit S. Shah, M.D., DAB No. 2836 at 6 (2017) (citing cases).  The evidence shows that Petitioner directed and supervised staff in the preparation of fabricated patient records and was aware that his co-conspirators unlawfully paid kickbacks for referrals.  IG Exs. 2, 3.  In addition, the Centers for Medicare and Medicaid Services (CMS) is listed as the victim on the District Court’s Judgment in a Criminal Case, and the District Court ordered restitution in the amount of $26,155,133 payable to CMS.  IG Ex. 5 at 5.  The IG has proven that Petitioner’s conviction is related to the delivery of an item or service under Medicare, which Petitioner does not dispute.  See P. Br. at 1.  I find that the IG had a legal basis to impose an exclusion against Petitioner.  

2.    The IG has identified aggravating factors that support an exclusion beyond the five-year minimum.  

Exclusions imposed under section 1128(a)(1) carry a five-year mandatory minimum exclusion period.  Act § 1128(c)(3)(B) (42 U.S.C. § 1320a-7(c)(3)(B)); 42 C.F.R. § 1001.102(a).  The IG may extend the five-year exclusion period based on the application of the aggravating factors listed in 42 C.F.R. § 1001.102(b).  If any of the aggravating factors set forth in 42 C.F.R. § 1001.102(b) justifies an exclusion longer than five years, mitigating factors listed at 42 C.F.R. § 1001.102(c) may be considered as a basis for reducing the period of exclusion to no less than five years.  In this case, the IG proposed a 42-year exclusion based on four aggravating factors and one mitigating factor.  IG Ex. 1 at 2; IG Ex. 10.  Petitioner argues that the length of the exclusion is unreasonable and that there are additional mitigating factors that should be considered when determining the length of the exclusion.  P. Br. at 2-3.  

The IG identified the following four aggravating factors as a basis for imposing a 42-year exclusion against Petitioner:  loss to a government program or other entities as a result of Petitioner’s criminal conduct was greater than $50,000; the acts that resulted in the conviction, or similar acts, were committed over a period of one year or more; the 

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sentence imposed included incarceration; and Petitioner has been the subject of an adverse action by a Federal, State, local government agency or board based on the same set of circumstances that serves as the basis of the exclusion.  IG Ex. 1 at 2; 42 C.F.R. § 1001.102(b)(1)-(2), (5), (9).  Each factor is discussed below.  

A.    The acts resulting in the conviction, or similar acts, caused, or were intended to cause, a financial loss to a government program of $50,000 or more.  

The District Court found Petitioner jointly and severally liable for $26,155,133 in restitution to the Medicare program, which is over 500 times the $50,000 threshold for the application of this aggravating factor.  IG Ex. 5 at 5; 42 C.F.R. § 1001.102(b)(1).  Petitioner argues that the restitution amount does not accurately reflect his involvement and that he did not directly profit from the fraudulent claims.  P. Br. at 1.  However, it is well-established that an amount ordered as restitution constitutes proof of the amount of financial loss to a government program.  Yolanda Hamilton, M.D., DAB No. 3061 at 12-14 (2022).  The Board has also stated that the regulation does not say that an individual or entity has to benefit from the program loss, only that the offense “caused” or “intended to cause” the loss.  Craig Richard Wilder, DAB No. 2416 at 9 (2011).  Therefore, the IG has established that the restitution amount may be used as an aggravating factor.  

B.    The acts that resulted in Petitioner’s conviction, or similar acts, were committed over a period of one year or more.  

The second aggravating factor identified by the IG is the acts that resulted in the conviction, or similar acts, were committed over a period of one year or more.  “[T]he purpose of this aggravating factor ‘is to distinguish between petitioners whose lapse in integrity is short-lived from those who evidence a lack of such integrity over a longer period . . . .’”  Vinod Chandrashekhar Patwardhan, M.D., DAB No. 2454 at 7 (2012) (quoting Donald A. Burstein, Ph.D., DAB No. 1865 at 8 (2003)).  In this case, the acts that resulted in Petitioner’s conviction occurred from about March 2008 to December 2010.  IG Ex. 4.  Despite agreeing to the timeframe in the Agreed Factual Basis for Guilty Plea, Petitioner now argues that his involvement in the criminal activity was limited, that he was focused on patient care, and that the timeframe overlooks his “prompt resignation upon suspicion of wrongdoing.”  P. Br. at 1.  Despite Petitioner’s assertion, participating in criminal activity for approximately two years is indicative of deliberate participation and not a temporary lapse in judgment.  The IG has proven the existence of the second aggravating factor, which is significant and supports an enhancement to the mandatory minimum five-year exclusion.  

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C.    The sentence imposed by the District Court included incarceration.  

It is undisputed that the District Court sentenced Petitioner to 60 months of incarceration, and the sentence was subsequently reduced to 40 months.  P. Br. at 2; IG Ex. 5; IG Ex. 11 at 1; 42 C.F.R. § 1001.102(b)(5).  This substantial prison term reflects the seriousness of Petitioner’s offense, justifying a longer period of exclusion.  See, e.g., Gracia L. Maynard, M.D., DAB No. 2767 at 8 (2017) (quoting Raymond Lamont Shoemaker, DAB No. 2560 at 8 (2014) (petitioner’s sentence is “an unmistakable reflection of the . . . Court’s assessment of Petitioner’s untrustworthiness.”); see also Juan de Leon, Jr., DAB No. 2533 at 6 (2013) (noting that “a substantial period of incarceration would, on its own, justify the I.G. in increasing an exclusion significantly in excess” of the mandatory minimum and noting that the Board “once characterized a nine month incarceration, which included a period of work release, as relatively substantial”); Jason Hollady, M.D., DAB No. 1855 at 12 (2002) (the Board characterizing a nine-month incarceration as “relatively substantial”).  The IG has the legal authority to use Petitioner’s incarceration as an aggravating factor.  

D.    Petitioner was subject to an adverse action by a state board based on the same set of circumstances that serve as the basis of the imposition of the exclusion.  

If the circumstances that serve as the basis of the exclusion also resulted in an adverse action by any Federal, State, or local government agency or board, the IG may consider that as an aggravating factor.  42 C.F.R. § 1001.102(b)(9).  

The Florida Board permanently revoked Petitioner’s license to practice as a clinical social worker in the State of Florida.  IG Ex. 12 at 2.  The revocation states that Petitioner, the licensee, violated Florida state law by being convicted of a crime in any jurisdiction that is related to health care fraud.  IG Ex. 12 at 3.  The evidence shows that the revocation was related to the same circumstances that serve as the basis for this exclusion.  Therefore, IG has proven the existence of this aggravating factor.  

E.    The IG identified one mitigating factor in determining the length of Petitioner’s exclusion.  

The regulations provide a list of mitigating factors that may be applied to reduce an exclusion to no less than five years if aggravating factors are present.  42 C.F.R. § 1001.102(c).  The applicable regulations identify only three mitigating factors that may be considered to reduce a period of exclusion:  (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 the court determined 

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that a petitioner had a mental, physical, or emotional condition that reduced their culpability; and (3) a petitioner’s cooperation with federal or state officials resulted in others being convicted or excluded, additional cases being investigated, or a civil money penalty being imposed.  42 C.F.R. § 1001.102(c).  

Here, the IG identified Petitioner’s cooperation with officials that led to the conviction of a co-conspirator as a mitigating factor.  The record shows that Petitioner’s cooperation was substantial enough to warrant a 35% reduction in his prison sentence.  IG Ex. 11.  The IG noted that this mitigating factor was considered in determining the length of the extension in both the initial exclusion and the reconsidered exclusion.  IG Exs. 1, 10.  

Petitioner argues that there are additional mitigating factors that should be considered, including the lack of personal benefit derived from the fraudulent scheme, his limited role in the scheme, low risk of recidivism, and his rehabilitation.  P. Br. at 2.  However, an ALJ is not able to consider evidence of mitigation unless it is encompassed into one or more of the enumerated aggravating factors listed in 42 C.F.R. § 1001.102(b).  42 C.F.R. § 1001.102(c).  While I appreciate and understand Petitioner’s arguments, I do not have the authority to consider the additional information provided by Petitioner as mitigating factors in determining whether the length of the imposed exclusion is unreasonable.  Waleed Khan, DAB No. 3083 at 9 (2023); Shaun Thaxter, DAB No. 3053 at 35 (2021) (“The mitigating factors that ALJs and the Board may consider are limited to those listed in the regulation . . . .”).  Based on the evidence provided, the only mitigating factor that may be considered in this case is Petitioner’s cooperation with authorities.  

3.    Based on the four aggravating factors and one mitigating factor, I find that the 42-year exclusion imposed by the IG is not unreasonable.  

In determining whether the length of exclusion is unreasonable, I must determine whether the length falls into a “reasonable range” based on the evidence before me.  The regulations provide that the IG’s proposed exclusion must be upheld as long as the length of exclusion is not unreasonable.  42 C.F.R. § 1001.2007(a)(1)(ii).  It is important to note that it is the quality of the aggravating (or mitigating) factors that is most important when considering the length of exclusion and not the sheer number of aggravating factors that are present in a given case.  The Secretary stated in the preamble to the final rule establishing the exclusion regulations that:  

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

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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. 3298, 3314-15 (Jan. 29, 1992).  

Here, Petitioner engaged in a fraudulent billing scheme, along with his co-conspirators, that resulted in the submission of over $65 million in false and fraudulent claims to Medicare and payment of approximately $26 million for those claims.  IG Ex. 4.  This is an astonishing amount of fraud, particularly for a program designed to provide healthcare to some of this country’s most vulnerable populations.  Additionally, the Board has held that “it is entirely reasonable to consider a program loss amount substantially larger than” the threshold program loss amount to be “an ‘exceptional aggravating factor’ to be accorded significant weight.”  Laura Leyva, DAB No. 2704 at 10 (2016).  It is again worth mentioning that the fraudulent activity continued for about two years, which calls into question Petitioner’s trustworthiness and shows that this was not a temporary lapse in judgment.  

Additionally, even with a 35% reduction in the length of his incarceration due to Petitioner’s significant cooperation, the District Court sentenced him to 40 months of incarceration and three years of supervised release.  Even with a sizable reduction, 40 months is a significant period of incarceration which justifies a sizeable increase in the duration of the Petitioner’s exclusion.  

Lastly, Petitioner seemingly downplays the permanent revocation of his license to practice as a clinical social worker in the State of Florida.  Petitioner argues that the Florida Board suspended his license because he was unable to appear before the board due to his incarceration and that the matter is currently on appeal.  Petitioner also argues that he is eligible to apply for his license in other states, making this aggravating factor irrelevant.  P. Br. at 2.  Despite Petitioner’s argument, having a professional license permanently revoked is certainly relevant and it holds substantial weight in determining the length of an exclusion.  

Petitioner now minimizes his role in the fraudulent scheme and implies that he is less culpable than his co-conspirators.  P. Br.  However, the evidence shows that Petitioner was aware that his co-conspirators paid kickbacks and bribes to patient recruiters in violation of federal law.  IG Ex. 4 at 2.  Petitioner also admitted to directing and supervising the fabrication of patient records, including group therapy notes.  IG Ex. 4 at 2.  

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Based on the circumstances, I find that a 42-year exclusion is not unreasonable in this case based on the presence of one mitigating factor and four aggravating factors which include a large amount of restitution, a 40-month period of incarceration, the duration of the fraudulent activity, and the permanent revocation of Petitioner’s license to practice clinical social work in Florida.  

Lastly, Petitioner argues that his experience in child and adolescent mental health for bilingual populations who have faced suicidal ideations and sexual abuse is critical for the community.  P. Br. at 3.  Petitioner also states that the length of the exclusion will result in financial hardship and serves as a de facto lifetime ban from his profession.  P. Br. at 3.  Although I understand Petitioner’s concerns, they do not serve as a basis to lessen the period of his exclusion.  To the extent that Petitioner’s arguments may be construed as a request for equitable relief, an ALJ is not empowered to grant such relief.  Matthew J. Girardy, DMD, DAB No. 2987 at 7 (2020).  

VIII.  Conclusion

For the foregoing reasons, I find that the IG has proven, by a preponderance of the evidence, that Petitioner was convicted of an offense that requires exclusion under section 1128(a)(1) of the Act.  I also find that a 42-year exclusion from participation in Medicare, Medicaid, and all other federal health care programs, effective December 20, 2017, is not unreasonable based on the circumstances of this case.