Jesus Virlar-Cadena, DAB CR6721 (2025)

DECISION

Respondent, the Acting Inspector General (IG) for the U.S. Department of Health and Human Services, excluded Petitioner, Jesus Virlar-Cadena, from participation in Medicare, Medicaid, and all other federal health care programs for 32 years pursuant to section 1128(a)(1) of the Social Security Act (Act) (42 U.S.C. § 1320a-7(a)(1)).  Petitioner challenges his exclusion.  For the reasons stated below, I affirm the IG’s exclusion action and find the 32-year exclusion period selected by the IG not unreasonable.

I. Case Background and Procedural History

By later dated April 30, 2024, the IG notified Petitioner of his exclusion from participation in Medicare, Medicaid, and all federal health care programs pursuant to 42 U.S.C. § 1320a-7(a)(1) for a period of 32 years.  IG Ex. 1.  The IG explained she took this action based on Petitioner’s conviction in the U.S. District Court for the Southern District of Texas (District Court) for a criminal offense related to the delivery of an item or service under Medicare or a state health care program, including the performance of management or administrative services relating to the delivery of such items or services.  Id. at 1.

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The IG cited four aggravating factors to justify extending Petitioner’s exclusion period beyond the minimum five-year period:

(1) The acts that resulted in the 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 that resulted in the conviction, or similar acts, were committed over a period of one year or more;
(3) The sentence imposed included incarceration; and
(4) The individual has been the subject of any other adverse action by a federal, state, or local agency or board if the adverse action is based on the same set of circumstances that serves as the basis for the imposition of the exclusion.

Id.

The IG also identified a mitigating factor she considered to determine Petitioner’s period of exclusion, namely his cooperation with federal or state officials that satisfied the criteria to be considered a mitigating factor under 42 C.F.R. § 1001.102(c)(3).  Id.

Petitioner timely sought review of his exclusion before an administrative law judge (ALJ) in the Civil Remedies Division, resulting in my designation to hear and decide this case.  I convened a pre-hearing conference by telephone with the parties on September 19, 2024, the substance of which is memorialized in my September 23, 2024 Order Summarizing Pre-hearing Conference and Setting Briefing Schedule (Summary Order).  See 42 C.F.R. § 1005.6.  Among other things, I directed the parties to file pre-hearing briefs articulating their respective arguments as well as identifying witnesses and exhibits in support thereof.  Summary Order at 4-5.

The IG submitted a brief (IG Br.) and eight proposed exhibits (IG Exs. 1-8), four of them identified in DAB E-file as “under seal.”  See IG Exs. 2, 3, 6, and 8.  Petitioner submitted a short-form brief (P. Br.), a narrative response1 (P. Resp.), 12 proposed marked exhibits (P. Exs. 1-12), and one proposed unmarked exhibit (P. Unmarked Ex.).  The IG submitted a reply brief (IG Reply).

On March 7, 2025, I issued an Order to Show Cause (OSC) requiring the IG to demonstrate good cause for me to accept IG Exhibits 2, 3, 6, and 8.  I noted the IG did not have the authority to unilaterally file documents in this forum “under seal,” a term unrecognized by the IG’s regulations.  OSC at 1.  I also observed these documents were

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in fact marked as sealed by the District Court, meaning they could not be disseminated without that court’s approval.  Id. at 1-2.  I therefore required the IG to articulate a basis for me to accept these exhibits into evidence with these concerns in mind.

The IG filed her response on March 13, 2025 and advised me the District Court had unsealed three of these documents – IG Exhibits 2, 3, and 6 – to permit their admission in this proceeding.  IG OSC Resp. at 1.  The IG reported the District Court did not unseal IG Ex. 8, which according to the IG pertains to the nature of Petitioner’s cooperation.  Id. at 2.  The IG therefore withdrew IG Exhibit 8 as a proposed exhibit.  Id.  The IG acknowledged Petitioner cooperated within the meaning of the regulations and cited his recitation of the nature of that cooperation, which I take to be waiver of any objection by the IG to his account.  Id., citing P. Resp. at 66-68.

On April 24, 2025, I issued an order discharging the Order to Show Cause (Discharge Order).  I permitted the IG to submit IG Exhibits 2, 3, and 6 as part of her pre-hearing exchange, with the proviso that I would rule on their ultimate admissibility in this decision.  Discharge Order at 1.  I struck IG Exhibit 8 from the record and permitted the IG additional time to file an amended reply if she wished.  Id. at 2.  The IG declined that opportunity.

II. Admission of Exhibits and Decision on the Record.

Petitioner does not object to the IG’s proposed exhibits.  The IG objects to all of Petitioner’s proposed exhibits as irrelevant, characterizing them as newspaper articles with no relation to either the basis or the length of Petitioner’s exclusion.  IG Reply at 5.  In fact, P. Exhibit 3 and the unmarked exhibit are diagrams that appear to describe aspects of the criminal scheme underlying Petitioner’s offenses of conviction.

42 C.F.R. § 1005.17(c) requires me to exclude evidence that is irrelevant from the record.  Even construing the newspaper articles Petitioner submitted liberally, I find they are irrelevant to the narrow issues before me:  the basis for the IG’s exclusion action and the reasonableness of the exclusion period she selected.  I therefore exclude P. Exhibits 1, 2, and 4 through 12 from the record.  For purposes of review and to provide a foundation for my finding concerning their relevance, I have not stricken them from the record.

P. Exhibit 3 and the unmarked exhibit appear at least related to Petitioner’s arguments concerning the nature of the cooperation he provided to resolve the charges against him.  P. Resp. at 66-67.  They are minimally relevant.  I therefore admit them into the record.

Neither party proposed witnesses or believes a hearing to be necessary.  IG Br. at 7; P. Br. at 3.  Accordingly, I proceed to a decision based on the briefs submitted and the exhibits of record.  Civ. Remedies Div. P. § 19(d).

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III. Issues

The issues in this case are limited to determining if the IG had a basis to exclude Petitioner from participating in Medicare, Medicaid, and all other federal health care programs and, if so, whether the 32-year exclusion imposed by the IG is unreasonable.  See 42 C.F.R. § 1001.2007(a)(1).

IV. Jurisdiction

I have jurisdiction to hear and decide this case.  42 C.F.R. §§ 1001.2007(a)(1)-(2), 1005.2(a); see also 42 U.S.C. § 1320a-7(f)(1).

V. Applicable Law

Section 1128(f) of the Act (42 U.S.C. § 1320a-7(f)) provides Petitioner with rights to an administrative hearing and judicial review of the final action by the Secretary of Health and Human Services (Secretary).  The right to a hearing before an ALJ is set forth at 42 C.F.R. §§ 1001.2007(a) and 1005.2.  The rights of both the sanctioned party and the IG to participate in a hearing are set forth at 42 C.F.R. § 1005.3.

The Act requires the Secretary to exclude from participation in federal health care programs “[a]ny individual or entity that has been convicted of a criminal offense related to the delivery of an item or service under subchapter XVIII of this chapter or under any State health care program.”  Act § 1128(a)(1) (42 U.S.C. § 1320a-7(a)(1)); see also 42 C.F.R. § 1001.101(a).

The Act defines an individual to be 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 nolo contendere is accepted by a court; or (4) the individual has entered into any arrangement or program where judgment of conviction is withheld.  Act § 1128(i) (42 U.S.C. § 1320a-7(i)); 42 C.F.R. § 1001.2.  Exclusion under this provision of the Act is mandatory and does not distinguish between misdemeanor and felony convictions.  Act § 1128(a)(1) (42 U.S.C. § 1320a-7(a)(1)).  Excluded parties seeking to challenge their exclusion may not collaterally attack the conviction that provides the basis for exclusion.  42 C.F.R. § 1001.2007(d).

Section 1128(c)(3)(B) of the Act (42 U.S.C. § 1320a-7(c)(3)(B)) mandates a minimum five-year period of exclusion if imposed under section 1128(a) of the Act.  Exclusion is effective 20 days from the date the IG issues the notice of exclusion.  42 C.F.R. § 1001.2002(b).  The IG may elect to extend the period of exclusion based on the presence of certain aggravating factors.  42 C.F.R. § 1001.102(b).  If the IG has applied

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aggravating factors to increase the exclusion period beyond five years, she must consider the mitigating factors identified by the regulations as a basis for reducing the period of exclusion.  42 C.F.R. § 1001.102(c).  The IG’s determination of the length of exclusion enjoys deference only if it is not unreasonable.  42 C.F.R. § 1001.2007(a)(1)(ii).

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; the IG bears the burden on all other issues.  Summary Order at 3; 42 C.F.R. § 1005.15(c).

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

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

A. The IG has established a basis for Petitioner’s exclusion pursuant to section 1128(a)(1) of the Act.

The Act requires the IG to exclude an individual convicted of a criminal offense related to the delivery of a health care item or service under the Medicare program from participation in federal health care programs.  42 U.S.C. § 1320a-7(a)(1); 42 C.F.R. § 1001.101(a).  Petitioner does not challenge the propriety of his exclusion but disputes its length as unreasonable.  P. Br. at 2-3; P. Resp. at 35-72.  Nevertheless, to provide necessary context for my analysis, I address the factual bases for exclusion the IG has established by a preponderance of the evidence.

1. Relevant Facts

On October 16, 2018, a grand jury seated in the Southern District of Texas charged Petitioner in a superseding indictment with one count of Conspiracy to Commit Health Care Fraud in violation of 18 U.S.C. § 1349 and one count of Conspiracy to Pay and Receive Healthcare Kickbacks, in violation of 18 U.S.C. § 371.  IG Ex. 6 at 8, 26.  On May 22, 2019, Petitioner executed a written agreement pleading guilty to violations of 18 U.S.C. §§ 371 and 1349.2  IG Ex. 2 at 1, 15.  He also stipulated to facts related to those offenses in a separately filed document.  IG Ex. 3.

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As to the first count of the superseding information against him, Petitioner admitted he acted in concert with co-conspirators from in or around 2009 through in or around 2018 to execute a scheme to defraud the Medicare program.  Id. at 1.  Acting as the Medical Director for entities that provided hospice care and home health services, Petitioner authorized such services for Medicare beneficiaries that he knew were not medically necessary.  Id. at 2.  Petitioner knowingly and willfully caused false and fraudulent claims to be submitted to the Medicare program.  Id. at 3.  He falsified patient records to make it appear that certain patients had six months or less to live.  Id.  In exchange, Petitioner received payments from his co-conspirators.  Id.  He also received payments in exchange for patient referrals.  Id.

Petitioner concealed his ownership of affiliated entities through a nominal owner to conceal his referral of patients to those entities and disguise his control over the proceeds from the fraud scheme.  Id. at 4.  He also created false records related to five patients and produced them to the grand jury.  Id.  Petitioner was identified as the attending physician for approximately $18,400,995.64 in claims billed to the Medicare program by affiliated entities.  Id. at 4-5.  He agreed the loss stemming from the conspiracy to commit healthcare fraud ranged from $7,000,000 to $18,400,995.64.  Id. at 5.

As to the second count of the superseding information, Petitioner admitted that from in or around 2013 to in or around 2015, he and his co-conspirators used the mail and “other facilities in interstate commerce” to violate the Texas Commercial Bribery Act and thus 18 U.S.C. § 1952(a)(3), the Travel Act.  IG Ex. 3 at 5.  Petitioner stipulated he and his co-conspirators received illegal bribes and kickbacks in exchange for ordering prescription medications for patients.  Id. at 6.  Petitioner submitted prescriptions for patients to pharmacies without regard for their medical necessity.  Id.  He generated false documents to disguise the kickbacks and bribes he received.  Id.

In his capacity as attending physician, Petitioner caused claims for compounding drugs to be submitted to private health insurance companies for reimbursement and in exchange received kickbacks and bribes.  Id. at 6-7.  Petitioner stipulated the private insurers incurred at least $2,000,000 in losses from these false submissions.  Id. at 7.  In total, Petitioner stipulated that the losses stemming from the criminal conduct described in both counts of the information to which he pleaded amounted to between $9,000,000 and $18,400,995.64.  Id.

The District Court accepted Petitioner’s guilty plea on June 4, 2019 and imposed judgment against him on September 27, 2023.3  IG Ex. 4 at 9; IG Ex. 5 at 1.  The District

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Court sentenced Petitioner to 50 months’ incarceration4 and ordered him to pay $9,000,000 in restitution to the Medicare program.  IG Ex. 5 at 2, 5.

On October 10, 2023, the Texas Medical Board revoked Petitioner’s medical license.  IG Ex. 7 at 1.  The Medical Board indicated Petitioner’s felony conviction required automatic revocation by operation of state law.  Id. (citing Tex. Occ. Code § 164.057).

2. Petitioner was convicted of a criminal offense related to the delivery of a health care item or service under the Medicare program requiring exclusion under 42 U.S.C. § 1320a-7(a)(1).

Petitioner concedes his conviction for a criminal offense.  P. Br. at 1.  The evidence of record confirms Petitioner executed a plea agreement with the United States to resolve the criminal charges against him.  IG Exs. 2, 3.  The District Court accepted Petitioner’s guilty plea and entered judgment against him.  IG Exs. 4, 5.  The IG has established Petitioner was convicted of a criminal offense within the meaning of the Act.  Act § 1128(i)(1) (42 U.S.C. § 1320a-7(i)(1)); 42 C.F.R. § 1001.2.

Petitioner also concedes his conviction related to the delivery of an item or service under the Medicare program.  P. Br. at 2.  Doing otherwise would be futile.  Petitioner, a physician, pleaded guilty to one count of Conspiracy to Commit Health Care Fraud in violation of 18 U.S.C. § 1349 and one count of Conspiracy to Violate the Travel Act in violation of 18 U.S.C. § 371.  IG Ex. 2 at 1.  On its face, a conviction for conspiring to commit health care fraud against the Medicare program amply demonstrates the nexus between Petitioner’s criminal conduct and a covered healthcare program necessary to warrant exclusion.

Petitioner’s actual offense conduct reinforces that connection; Petitioner admitted he and co-conspirators “would knowingly and willfully cause the submission of false and fraudulent claims” to the Medicare program for “medically unnecessary services.”  IG Ex. 3 at 3.  He did so by falsifying patient records to make it appear that certain patients had six months or less to live.  Id.  He concealed his ownership of affiliated entities to conceal his referral of patients to those entities and disguise his control over the proceeds from the fraud scheme.  Id. at 4.

As a result of his criminal conduct, the District Court ordered Petitioner to pay restitution to the Medicare program.  IG Ex. 4 at 6.  Payment of restitution to a covered healthcare program for losses incurred from criminal conduct demonstrates the nexus between the

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offense of conviction and the delivery of an item or service to that program.  Summit S. Shah, M.D., DAB No. 2836 at 8-9 (2017) (quoting Berton Siegel, D.O., DAB No. 1467 at 6-7 (1994) (“[A] criminal offense resulting in financial loss to a State Medicaid program is ‘related to’ the delivery of items or services under that Medicaid program because it results ‘in less funds being available to pay for covered services’ delivered to Medicaid patients.”)).  These facts establish the requisite “common sense” connection between Petitioner’s offense of conviction and the delivery of services to the Medicare program.

B. Petitioner must be excluded for a minimum of five years.

Because I have concluded a basis exists to exclude Petitioner pursuant to 42 U.S.C. § 1320a-7(a)(1), he must be excluded for a minimum of five years.  42 U.S.C. § 1320a-7(c)(3)(B); 42 C.F.R. § 1001.102(a).

C. The IG has established four aggravating factors which together justify exclusion beyond the five-year statutory minimum.

Petitioner concedes the IG has correctly identified and applied four aggravating factors to extend his period of exclusion.  P. Br. at 2.  Because the IG bears the burden of establishing their application to be warranted, I have nevertheless scrutinized the factual basis for these aggravating factors.  42 C.F.R. § 1005.15(c).

1. The IG established financial loss to a government program of $50,000 or more, as required by 42 C.F.R. § 1001.102(b)(1).

In the plea agreement and stipulation of facts he executed to resolve the criminal action against him, Petitioner admitted his participation in a criminal fraud scheme against the Medicare program resulted in a loss between $9,000,000 and $18,400,995.64.  IG Ex. 2 at 8-9; IG Ex. 3 at 7.  The District Court ordered him to pay $9,000,000 in restitution to the Medicare program.  IG Ex. 5 at 5.  Restitution is an appropriate measure to demonstrate program loss.  Shah, DAB No. 2836 at 8 (citations omitted).  The IG has established Petitioner was responsible for considerably more than $50,000 in loss to the Medicare program.

2. The IG established Petitioner’s conviction arose from acts that lasted for a period of one year or more, as required by 42 C.F.R. § 1001.102(b)(2).

To resolve the criminal charges against him, Petitioner conceded the criminal conspiracy in which he participated lasted from approximately 2009 through 2018.  IG Ex. 3 at 1.  The IG has established Petitioner’s criminal conduct occurred for over one year.

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3. The IG established Petitioner was incarcerated as part of his sentence, as required by 42 C.F.R. § 1001.102(b)(5).

The District Court imposed a sentence of 50 months’ incarceration for Petitioner’s admitted criminal conduct.  IG Ex. 5 at 2.  The IG has established Petitioner’s sentence included a period of incarceration.

4. The IG established Petitioner was the subject of another adverse action by another government entity based on the same set of circumstances forming the basis of exclusion, as required by 42 C.F.R. § 1001.102(b)(9).

On October 10, 2023, the Texas Medical Board revoked Petitioner’s medical license.  IG Ex. 7 at 1.  The Medical Board indicated it took that action as a result of Petitioner’s felony conviction.  Id.The IG has established Petitioner was the subject of an adverse action by another government entity for the same circumstances that provided the basis for his exclusion.

D. The IG properly applied one mitigating factor.

Petitioner has the burden of proving mitigating factors.  42 C.F.R. § 1005.15(c).  Here, the IG concedes the presence of one of the three mitigating factors permitted by the regulations, namely cooperation with federal or state officials resulting in additional action taken against other individuals to protect the integrity of the Medicare program.  IG Br. at 5; 42 C.F.R. § 1001.102(c)(3).5

Petitioner argues the IG should have applied another mitigating factor here, namely the presence of a mental, emotional, or physical condition used by the sentencing court to find reduced culpability.  P. Resp. at 71-72; see 42 C.F.R. § 1001.102(c)(2).  Petitioner claims the District Court determined his substance abuse condition reduced his culpability and ordered him to enroll in treatment for drug and alcohol abuse.  P. Resp. at 71-72.  He argues the regulation does not require an explicit finding by the court that his substance abuse condition reduced his culpability but that I can infer such a determination from statements made by the court during sentencing.  Id.  The IG contends the District Court made no such finding expressly and that it would be improper to establish this mitigating factor based solely on inferences drawn from the record, as Petitioner urges.  IG Reply at 5.

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The Board has rejected the IG’s position as to this last point, holding “. . . . the sentencing court need not make explicit findings that a mental, emotional, or physical condition existed at the time of the offense that reduced culpability. . . .”  Yolanda Hamilton, M.D., DAB No. 3061 at 20 (2022), quoting Mohamad Ahmad Bazzi, DAB No. 2917 at 10-11 (2018).  Instead, I must “be able to infer clearly from the evidence of the [criminal] proceedings that the sentencing court made the requisite determination.”  Bazzi, DAB No. 2917 at 11.

However, I cannot draw the inference Petitioner urges based on the record before me.  Petitioner asserts I could infer “from the judge’s statement during sentencing” and the pre-sentencing report that the District Court found his culpability reduced because of his mental condition.  P. Resp. at 71-72.  Neither document is part of the record before me.  I recognize that Petitioner’s incarceration made it difficult for him to procure and submit records.  But the burden of establishing a mitigating factor still belonged to him.  42 C.F.R. § 1005.15(c); Bazzi, DAB No. 2917 at 10.

Petitioner was a licensed physician – even allowing for lack of legal acumen, he is well-educated, far beyond the average person.  I provided him paper copies of the regulations at 42 C.F.R. part 1005 which govern these proceedings and outline methods to procure documents.  Petitioner could have asked the IG to produce these documents in a discovery request or asked me to issue a subpoena for their production.  See 42 C.F.R. §§ 1005.7(a), 1005.9.

Even without knowledge of these options, Petitioner could have simply requested these records directly from the attorney who defended him in the criminal case at issue here.  Or he could have asked me to procure them for him, in which instance I would have taken measures to grant his request or provided him instructions and additional time to obtain them himself.  Petitioner’s voluminous hearing request and pre-hearing response demonstrate his capacity to articulate requests in writing.  His failure to do so, even while arguing that I should take these specific documents into account to reach the inference he seeks, means he has not satisfied his burden to establish a mitigating factor under 42. C.F.R. § 1001.102(c)(2).

Similarly, Petitioner appears to argue he has demonstrated additional cooperation beyond that taken into consideration by the District Court and ultimately, the IG.  See P. Resp. at 68 (“The information provided to the FBI . . . should lead to over $100 million in fraud recoupment, and millions more in prevention.”).  Even if true, this assistance does not meet the regulatory definition of cooperation sufficient to establish a mitigating factor.  42 C.F.R. § 1001.102(c)(3) (providing cooperation must result in the conviction or exclusion of others, additional cases being investigated, reports being issued by law enforcement identifying program vulnerabilities or weaknesses, or the imposition of a civil money penalty against another person).  Petitioner does not even allege, let alone establish, that the conduct he described resulted in any of these outcomes.

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E. A 32-year exclusion period is not unreasonable.

I must uphold the IG’s determination as to the length of exclusion if it is not unreasonable.  42 C.F.R. § 1001.2007(a)(1)(ii).  This means that:

[s]o long as the amount of time chosen by the OIG is within a reasonable range, based on demonstrated criteria, the ALJ has no authority to change it under this rule.  We believe that the deference § 1001.2007(a)(2) grants to the OIG is appropriate, given the OIG’s vast experience in implementing exclusions under these authorities.

57 Fed. Reg. 3298, 3321 (Jan. 29, 1992).

To determine whether the period of exclusion selected by the IG is not unreasonable, I may not substitute my own judgment for that of the IG.  Richard E. Bohner, DAB No. 2638 at 2 (2015) (citations omitted), aff’d, Bohner v. Burwell, No. 15-cv-4088, 2016 WL 8716339 (E.D. Pa. Dec. 2, 2016).  Instead, I look to see “whether the period of exclusion imposed by the I.G. was within a reasonable range, based on demonstrated criteria.”  Craig Richard Wilder, DAB No. 2416 at 8 (2011).

To do so, I must consider the aggravating and mitigating factors established in the record before me.  42 C.F.R. § 1001.102(b), (c).  The quality of the aggravating or mitigating factors is of greater significance than the mere number of the factors present in a given case.  The preamble to the final rule publishing the exclusion regulations provides:

We do not intend for the aggravating and mitigating factors to have specific values; rather, these factors must be evaluated based on the circumstances of a particular case.  For example, in one case many aggravating factors may exist, but the subject’s cooperation with the OIG may be so significant that it is appropriate to give that one mitigating factor more weight than all of the aggravating.  Similarly, many mitigating factors may exist in a case, but the acts could have had such a significant physical impact on program beneficiaries that the existence of that one aggravating factor must be given more weight than all of the mitigating.  The weight accorded to each mitigating and aggravating factor cannot be established according to a rigid

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formula, but must be determined in the context of the particular case at issue.

57 Fed. Reg. at 3314-15.

Here, the IG established four aggravating factors and acknowledged one mitigating factor.  Having reviewed them, as well as the parties’ arguments, I conclude the IG reasonably evaluated these factors to justify a significant period of exclusion.  First, Petitioner’s criminal conduct resulted in an enormous loss to the Medicare program – at least $9,000,000.  IG Ex. 3 at 7; IG Ex. 5 at 5.  The Board has observed it is “entirely reasonable” to give significant weight to loss amounts substantially larger than the minimum regulatory threshold.  Leyva, DAB No. 2704 at 9-10 (2016) (citations omitted).  Petitioner’s criminal conduct resulted in a loss to the Medicare program approximately 180 times the regulatory minimum of $50,000 for program loss to be considered an aggravating factor.  42 C.F.R. § 1001.102(b)(1).

Petitioner now contests the loss determination by the District Court, attacking the statistical sampling undertaken by the government and arguing the validity of some of his certifications of terminal illness.  P. Resp. at 40-46.  These arguments have no merit because Petitioner may not collaterally attack his conviction; this includes the amount of loss to the Medicare program he agreed he caused as part of the plea deal he made to resolve the criminal charges against him.  IG Ex. 3 at 5; IG Ex. 5 at 5; 42 C.F.R. § 1001.2007(d); Michael D. Miran, Esta Miran, & Michael D. Miran, Ph.D. Psychologist P.C., DAB No. 2469 at 5 (2012) (“Petitioners’ attempt to contest the restitution figure is another impermissible collateral attack under 42 C.F.R. § 1001.2007(d) since the plea agreement was a final disposition of that matter. . . . ”).

Petitioner knowingly and intentionally bilked this country’s health insurance safety net for the elderly and disabled.  In so doing, he caused millions of dollars in losses to that program.  This reflects a profound level of untrustworthiness to participate in the Medicare program.  The IG properly gave significant weight to this aggravating factor in selecting a 32-year period of exclusion.  Hussein Awada, M.D., DAB No. 2788 at 7 (2017) (“The millions of dollars in losses that Petitioner’s actions caused . . . merits a substantial increase in the length of his exclusion beyond the minimum period.”).

The duration of Petitioner’s offense signaled a level of culpability and untrustworthiness the IG appropriately considered.  The Board observed criminal conduct lasting more than four years is “a protracted period” that shows an individual “is extremely untrustworthy.”  Rosa Velia Serrano, DAB No. 2923 at 9 (2019).  Petitioner’s criminal conduct here continued for over twice that period – from approximately 2009 through 2018.  IG Ex. 3 at 1.  Petitioner’s persistent criminal conduct reflects a sustained lack of integrity, not a momentary lapse of judgment.  Donald A. Burstein, Ph.D., DAB No. 1865 at 8 (2003) (observing “[t]he purpose of [this] aggravating factor is to distinguish between petitioners

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whose lapse in integrity is short-lived from those who evidence a lack of such integrity over a longer period of time.”).  The IG properly gave significant weight to the nearly decade-long duration of Petitioner’s criminal offense in selecting his period of exclusion.

The revocation of Petitioner’s medical license by the state of Texas corroborates the IG’s assessment of his trustworthiness.  As a matter of law, Texas believed Petitioner’s felony conviction sufficiently serious to automatically preclude him from treating any patient in the state, not just those for whom the federal and state governments provided financial support.  IG Ex. 7 at 1.  This action is consistent with the IG’s assessment of Petitioner’s untrustworthiness and justifies, in part, a longer period of exclusion.

The District Court’s imposition of a 50-month sentence of incarceration reinforces the seriousness of Petitioner’s offense.  IG Ex. 5 at 2.  Petitioner claims he is scheduled to be released after serving only 17 months, which in his view indicates his criminal conduct was not as serious as the sentence of incarceration imposed by the District Court would suggest.  P. Resp. at 47-49.  But application of this aggravating factor is premised on the imposition of a sentence of incarceration and the weight given is based on the sentencing court’s determination of the length of incarceration, not subsequent reductions or modifications made for reasons that have nothing to do with that court’s initial assessment.  See Eugene Goldman, M.D., DAB No. 2635 at 5 (2015) (observing “nothing in [42 C.F.R. § 1001.102(b)(5)] precludes consideration of the period of incarceration imposed by the sentencing court” in assessing the reasonableness of the exclusion period and “the period of incarceration reflects the sentencing judge’s ‘assessment of Petitioner’s untrustworthiness.’”) (citation omitted).

Petitioner contends the District Court’s imposition of a 50-month sentence cannot serve as a proxy for that court’s assessment of his untrustworthiness because that sentence was “determined by Federal Sentencing Guidelines.”  P. Br. at 47.6  Petitioner contends the District Court was obligated to impose a sentence within the Guidelines, meaning the length of his incarceration cannot properly reflect the sentencing judge’s assessment of his untrustworthiness.  Id. at 48.  This claim is erroneous.  As Petitioner acknowledges, the District Court was not bound to impose a sentence within the Guidelines and could have imposed a lower period of incarceration, or no period, if the court deemed it appropriate.  Id.; see also U.S. v. Booker, 543 U. S. 220, 264 (2005).

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The District Court’s decision to impose a within-Guidelines sentence of incarceration therefore remains a reasonable proxy to consider in assessing Petitioner’s trustworthiness.  Goldman, DAB No. 2635 at 7-8 (“We agree that the length of incarceration for a federal crime is determined by the Sentencing Guidelines rather than entirely within the discretion of the sentencing judge.  Nevertheless, the establishment of different benchmark ranges for different crimes and provision for various departures from those benchmarks, as well as the degree of discretion retained by the judge, means that length of incarceration is not necessarily unconnected to the elements contributing to untrustworthiness.”).7

The imposition of a 50-month sentence by the District Court on a health care provider who pleaded guilty to a non-violent offense reflects the seriousness of that offense and reflects a significant level of untrustworthiness.  See Spyros N. Panos, M.D., DAB No. 2709 at 12 (2016) (incarceration for 54 months is “unquestionably a significant period”); Gracia L. Mayard, M.D., DAB No. 2767 at 8 (2017) (characterizing a 54-month incarceration term as “substantial”); Raymond Lamont Shoemaker, DAB No. 2560 at 8 (2014) (finding a 55-month prison term to be substantial).

The IG acknowledged Petitioner established cooperation that satisfied the requirements of 42 C.F.R. § 1001.102(c)(3).  IG Br. at 7.  Petitioner contends the significant cooperation he provided merited greater consideration as a mitigating factor.  P. Resp. at 66-69.  There is little to no evidence in the record to describe the nature of Petitioner’s cooperation.  Petitioner asserted he provided over 100 pages of documentation of fraud committed by other health care providers to the FBI.  Id. at 67.  He indicated he met with the FBI more than six times, sometimes for hours at a time.  Id.  Petitioner claimed he testified for three days against three indicted individuals.  Id. at 68.

The IG does not dispute Petitioner’s description of his cooperation nor the propriety of considering it a mitigating factor.  His described conduct meets the regulatory definition of cooperation.  Id.; 42 C.F.R. § 1001.102(c)(3).  I fully credit Petitioner’s extensive efforts to assist the government in discovering and prosecuting at least three fellow criminals and agree his cooperation was significant.  But I cannot ignore the fact that Petitioner’s cooperation only occurred after nine long years of criminal conduct that caused at least $9 million in loss to the Medicare program.  Nor can I disregard the view

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of the District Court that despite Petitioner’s cooperation his offense nevertheless warranted a sentence of incarceration exceeding four years.  There is no evidence in the record to suggest Petitioner had any inclination to cease his criminal acts until he was caught.  His cooperation thereafter, however notable, more likely reflects a vigorous sense of self-preservation, not a sudden affliction of integrity that would signal greater trustworthiness than the aggravating features of Petitioner’s criminal offense otherwise suggest.

For the foregoing reasons, I conclude the IG has established the existence of four aggravating factors and one mitigating factor.  She has also demonstrated she reasonably weighed those factors.  Petitioner’s crime had a substantial financial impact on the Medicare program, occurred over a long period of time, and resulted in his incarceration.  His cooperation was a significant mitigating factor, but he did not seek to cooperate with the government or cease his criminal conduct until he was caught.  I cannot find the IG’s selection of a 32-year period of exclusion in this case unreasonable.  See Craig Richard Wilder, DAB No. 2416 at 10-11 (2011) (affirming a 35-year period of exclusion where the petitioner caused approximately $4,000,000 in program loss from criminal acts lasting over a period of two years but provided “extraordinary cooperation” which resulted in the conviction of several confederates).8

F. I cannot modify the effective date of Petitioner’s exclusion.

Petitioner argues that the Act required his exclusion to begin the date he met the statutory definition of “convicted” – June 4, 2019, the date the District Court accepted his guilty plea.  P. Resp. at 1-4; IG Ex. 4 at 9.  Whatever the merits of Petitioner’s claim, I have no authority to modify the effective date of Petitioner’s exclusion.  Shaikh M. Hasan, M.D., DAB No. 2648 at 8 (2015); Thomas Edward Musial, DAB No. 1991 (2005) (citing Douglas Schram, R.PH., DAB No. 1372 at 11 (1992) (“Neither the ALJ nor this Board may change the beginning date of Petitioner’s Exclusion.”).  Instead, the Act makes clear that the exclusion period is triggered by the date of the IG’s notice of exclusion, not the date of conviction.  42 U.S.C. § 1320a-7(c)(2) (providing “such an exclusion shall be effective with respect to services furnished to an individual on or after the effective date of the exclusion.”) (emphasis added); 42 C.F.R. § 1001.2002(b).

G. Petitioner’s remaining arguments

Petitioner’s 73-page handwritten pleading includes constitutional attacks on the IG’s exclusionary authority and claims of arbitrary and capricious statutory construction.  See generally P. Resp.  I have addressed the arguments that plausibly fall within my jurisdictional purview – whether the IG had a basis to exclude Petitioner and whether the

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32-year period of exclusion selected by the IG is reasonable.  I do not have the authority to address Petitioner’s remaining arguments.  Matthew J. Girardy, DMD, DAB No. 2987 at 7 (2020) (citation omitted).

VI. Conclusion

I affirm the IG’s determination to exclude Petitioner from participating in Medicare, Medicaid, and all other federal health care programs for a period of 32 years.