Francois Antoine Legagneur, Jr., M.D., DAB CR6737 (2025)

DECISION

I affirm the 12-year exclusion of Petitioner, Francois Antoine Legagneur, Jr., M.D., from participation in all federal health care programs.

I. Background and Procedural History

In a September 30, 2024 notice, the Inspector General (IG) of the United States Department of Health and Human Services excluded Petitioner from participation in all federal health care programs under section 1128(a)(3) of the Social Security Act (42 U.S.C. § 1320a-7(a)(3)) for 12 years due to his felony conviction in the United States District Court for the Southern District of Florida of a criminal offense related to fraud, theft, embezzlement, breach of fiduciary responsibility, or other financial misconduct, in connection with the delivery of a health care item or service.  The notice identified two aggravating factors to lengthen the exclusion from the statutorily required minimum 5 years to 12 years:  1) the acts that resulted in conviction, or similar acts, were committed over a period of one year or more (i.e., from about April 2016 to July 2021); and 2) the sentence imposed by the court included incarceration (i.e., 27 months).  The notice stated that the exclusion would take effect 20 days after the date on the notice.  IG Ex. 1 at 1.

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On December 3, 2024, Petitioner filed a request for hearing to dispute the exclusion and the length of exclusion.  On December 23, 2024, the Civil Remedies Division (CRD) acknowledged receipt of the hearing request, gave notice of a telephonic prehearing conference to be held on January 14, 2025, and issued my Standing Order.  On January 11, 2025, Petitioner requested a continuance of the prehearing conference to find legal counsel; however, on January 13, 2025, I denied the request so that I could discuss with Petitioner the amount of time he would need to hire an attorney and to make initial contact with him.  Petitioner did not appear for the conference due to confusion as to the time of the conference.  On January 16, 2025, I rescheduled the prehearing conference for February 24, 2025, so that Petitioner would have time to find an attorney.

On February 24, 2025, I held a telephonic prehearing conference with the parties, the substance of which is summarized in my February 26, 2025 Order Following Prehearing Conference and Setting Schedule for Prehearing Submissions.  Petitioner represented himself at the conference; however, Petitioner indicated that he still wanted to obtain representation.  When setting the prehearing exchange schedule, I provided Petitioner with additional time to file his exchange so that he would have time to find an attorney.

On March 31, 2025, the IG submitted a prehearing exchange consisting of a brief (IG Br.) and five proposed exhibits (IG Exs. 1-5).  On June 2, 2025, Petitioner submitted three videos as proposed exhibits.  Electronic Filing System (E-File) Doc. Nos. 9-11.1  On June 5, 2025, the IG filed notice that the IG would not submit a reply brief.  On June 10, 2025, CRD received from Petitioner a brief (P. Br.) and ten proposed exhibits (P. Exs. 1-10).  In a motion dated June 11, 2025 (June 11 Motion), Petitioner requested, among other things, that I require the IG to respond to Petitioner’s prehearing exchange.  Also on June 11, 2025, the IG requested an extension of time to file a reply brief.  I granted the IG’s request for an extension.  On June 26, 2025, the IG filed a reply brief (IG Reply).

On July 5, 2025, and July 14, 2025, respectively, CRD received an email and a filing from Petitioner stating that the IG sent documents to Petitioner from another individual’s exclusion case.  Petitioner also asked for time to respond to the IG’s reply brief.

In a July 15, 2025 Order, I directed CRD to redact certain contact information from the documents Petitioner filed from the unrelated exclusion case.  42 C.F.R. § 1005.18(d).  I also denied Petitioner’s request to file a sur-reply because Petitioner provided no reason why it was necessary, the parties completed the schedule of prehearing submissions, and a review of the IG’s reply brief showed that the IG did not raise any new arguments.  Finally, I informed the parties that the record in this case was closed.

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II. Admission of Exhibits

I admit IG Exhibits 1 through 5, Petitioner Exhibits 1 through 10, and Petitioner’s video exhibits (E-File Doc. Nos. 9-11) into the record, without objection.  Standing Order ¶ 13; see 42 C.F.R. § 1005.8(c).

III. Decision on the Written Record

Neither party offered any witnesses and neither party believes an evidentiary hearing is necessary.  IG Br. at 10; P. Br. at 32.  Therefore, I issue this decision based on the written record.  Standing Order ¶¶ 12, 16; see also 42 C.F.R. § 1005.6(b)(5).

IV. Issues

1) Whether the IG had a legitimate basis to exclude Petitioner from participation in all federal health care programs under 42 U.S.C. § 1320a-7(a)(3).

2) Whether a 12-year length of exclusion is unreasonable.

V. Jurisdiction

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

VI. Findings of Fact

1) On January 12, 2023, a grand jury empaneled by the United States District Court for the Southern District of Florida (District Court) returned an Indictment against Petitioner and several other individuals.  IG Ex. 2.  Count 1 of the Indictment charged Petitioner and several others with Conspiracy to Commit Wire Fraud in violation of 18 U.S.C. § 1349.  IG Ex. 2 at 9-13.

2) On May 10, 2023, Petitioner signed a Plea Agreement in which he agreed to plead guilty to Count 1 of the Indictment.  IG Ex. 3.

3) In the Plea Agreement, Petitioner stated that he “understands and acknowledges that because of this plea, [Petitioner] will be excluded from Medicare, Medicaid, and all Federal health care programs.  [Petitioner] agrees to complete and execute all necessary documents provided by any department or agency of the federal government, including but not limited to the United States Department of Health

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and Human Services, to effectuate this exclusion within 60 days of receiving the documents.”  IG Ex. 3 at 2.

4) On May 10, 2023, Petitioner signed a document entitled Factual Basis in Support of Plea, which included the following facts:

1. Petitioner owned and operated Unparalleled Review Services, LLC (Unparalleled Review), located in Jamaica, New York.   IG Ex. 5 at 2-4.
2. Petitioner and various co-conspirators, “[f]rom at least as early as in or around April of 2016, and continuing through in or around July of 2021 . . . solicited and recruited co-conspirators . . . and others, seeking nursing credentials and employment as [a registered nurse] or [licensed practical nurse/licensed vocational nurse] in the health care field.”  IG Ex. 5 at 6.
3. Petitioner, with various co-conspirators, “caused to be created and distributed, via interstate wire communications, false and fraudulent transcripts and diplomas to co-conspirators . . . and others falsely and fraudulently representing that the co-conspirators attended Palm Beach School of Nursing, Quisqueya, or Florida College of Health in Florida and completed the necessary courses and/or clinicals to obtain [registered nurse] or [licensed practical nurse/licensed vocational nurse] diplomas, when in fact the co-conspirators had never actually completed the necessary courses and/or clinicals.”  IG Ex. 5 at 6-7.
4. Petitioner’s co-conspirators “used the false and fraudulent diplomas and transcripts and other records created and distributed, and caused to be created and distributed, by [Petitioner and others], to obtain licensure as [a registered nurse] or [licensed practical nurse/licensed vocational nurse] in various states including Ohio, New York, New Jersey, and Massachusetts.”  IG Ex. 5 at 7.
5. Petitioner’s co-conspirators “used the false and fraudulent diplomas, transcripts and other documents created and distributed, and caused to be created and distributed, by [Petitioner and others], to fraudulently obtain employment and benefits as [a registered nurse] or [licensed practical

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5. nurse/licensed vocational nurse] at various unwitting health care providers throughout the country . . . .  Those health care providers hired and paid salaries, wages, and other benefits to the [registered nurses] and [licensed practical nurses/vocation nurses] based on their fraudulent credentials.”  IG Ex. 5 at 7.
6. “[Petitioner] as owner and operator of Unparalleled Review entered into an agreement with [J.N.], by which he paid her between $7,000 and $8,000 for 49 nursing school diploma[s] and transcript[s] the Palm Beach School of Nursing issued to students [Petitioner] recruited.  [Petitioner] communicated directly with [G.R.] to obtain the diplomas and transcripts for his students.  These nursing school students each paid [Petitioner] approximately $15,000 for the documents.  Therefore, [Petitioner] made approximately $367,500 as a result of the students he recruited at Unparalleled Review.”  IG Ex. 5 at 8.
7. “[Petitioner] was also an employee at Palm Beach School of Nursing where he trained approximately 75 out of state students at the Bergenline facility.  [Petitioner] received an hourly salary.  Financial records show he made deposits into his accounts from Palm Beach School of Nursing and its affiliated schools totaling $66,230.  As a result of [Petitioner’s] participation in this scheme, he collected payments totaling $433,730.”  IG Ex. 5 at 8.

5) In a June 6, 2024 Judgment in a Criminal Case, the District Court stated that Petitioner pleaded guilty to Count 1 of the Indictment and that Petitioner “is adjudicated guilty of . . . 18 U.S.C. § 1349 / Conspiracy to commit wire fraud.”  IG Ex. 4 at 1; P. Ex. 1 at 1.

6) The District Court sentenced Petitioner to 27 months of imprisonment.  IG Ex. 4 at 2; P. Ex. 1 at 2.

VII. Conclusions of Law and Analysis

1. Petitioner is subject to exclusion under 42 U.S.C. § 1320a‑7(a)(3) because he was convicted of a felony offense related to fraud in connection with the delivery of a health care item or service.

The Secretary of Health and Human Services (Secretary) must exclude an individual from participation in all federally funded health care programs when that individual:

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has been convicted for an offense which occurred after August 21, 1996, under Federal or State law, in connection with the delivery of a health care item or service . . . of a criminal offense consisting of a felony relating to fraud, theft, embezzlement, breach of fiduciary responsibility, or other financial misconduct.

42 U.S.C. § 1320a-7(a)(3).  The Secretary delegated to the IG his authority to impose mandatory exclusions.  42 C.F.R. § 1001.101.

As stated in the Secretary’s regulations, the three essential elements to support this mandatory exclusion are:  (1) a conviction under federal or state law of a felony that occurred after August 21, 1996; (2) the felony is related to fraud, theft, embezzlement, breach of fiduciary responsibility, or other financial misconduct; and 3) the felony was in connection with the delivery of a health care item or service.  42 C.F.R. § 1001.101(c)(1).

As explained below, the IG proved, by a preponderance of the evidence, that Petitioner was convicted of a felony under federal law, for conduct occurring after 1996, which was related to fraud and was in connection with the delivery of a health care item or service.  Therefore, Petitioner is subject to a mandatory exclusion.

I note that, as stated in Findings of Fact number 3 above, Petitioner agreed and acknowledged that his criminal plea would result in this exclusion.  Petitioner also agreed to assist in the effectuation of paperwork related to this exclusion.  Petitioner’s appeal of the imposition of an exclusion is inconsistent with the terms in the Plea Agreement.

a. Petitioner was convicted of a felony under federal law for conduct that occurred after August 21, 1996.

For purposes of exclusion, individuals are deemed “convicted” of an 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.”  42 U.S.C. § 1320a‑7(i)(1), (3).

Petitioner was convicted of Conspiracy to Commit Wire Fraud.  As stated in Findings of Fact numbers 2 through 5 above, he pleaded guilty to the crime, and the District Court accepted that plea and issued a judgment of conviction.

Petitioner was also convicted of a felony.  Petitioner’s conviction was for a class C felony because wire fraud carries a maximum penalty of 20 years of imprisonment, and the

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maximum penalty for conspiracy is the same as that of the underlying offense.  See 18 U.S.C. §§ 1343, 1349, 3559(a)(3).

Finally, as stated in Findings of Fact number 4(b), Petitioner’s criminal conduct occurred no earlier than 2016.

b. Petitioner was convicted of a felony relating to fraud.

The IG may only impose a mandatory exclusion under 42 U.S.C. § 1320a-7(a)(3) if there is a felony conviction relating to fraud, theft, embezzlement, breach of fiduciary responsibility, or other financial misconduct.

The term “fraud” in § 1320a-7(a)(3) is “targeting fraud generally,” which means that it encompasses any type of fraud and not merely fraud involving financial misconduct.  Morgan v. Sebelius, 694 F.3d 535, 538 (4th Cir. 2012).

The words “relating to” mean that exclusion under § 1320a-7(a)(3) is not limited to individuals convicted of the generic offense of fraud (i.e., crimes with the core elements of fraud) but to all criminal conduct that has a factual relationship to fraud.  Friedman v. Sebelius, 686 F.3d 813, 821 (D.C. Cir. 2012).  This is because the words “relating to” in § 1320a-7 are “deliberately expansive” and have a broad “ordinary meaning” that is “to stand in some relation; to have bearing or concern; to pertain; refer; to bring into association with or connection with.”2  Friedman, 686 F.3d at 820; see also Yohannes Tinsae, DAB No. 3084 at 9-10 (2023).  Put another way, there only needs to be a nexus or common-sense connection to fraud for an exclusion to be imposed.  See Quayum v. U.S. Dep’t of Health & Human Servs., 34 F. Supp. 2d 141, 143 (E.D.N.Y. 1998); see also Tinsae, DAB No. 3084 at 10; Berton Siegel, D.O., DAB No. 1467 (1994).

The breadth of the term “relating to” can be seen in the Friedman case.  A corporation was convicted of “misbranding” a medication, with the intent to defraud or mislead, through marketing claims about the medication that were false.  Friedman, 686 F.3d at 816.  However, the defendants in Friedman were senior corporate officers who were only convicted of misdemeanor misbranding under the responsible corporate officer doctrine because they failed to prevent the corporation’s fraudulent marketing of the medication.  686 F.3d at 816.  Although the corporate officers were not convicted of fraud, their crime was still related to fraud for purposes of exclusion because their crime was a failure to stop the corporation from engaging in fraud.  Friedman, 686 F.3d at 824.

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There is no doubt that Petitioner’s crime was related to fraud.  Petitioner was convicted of conspiracy to commit wire fraud in violation of 18 U.S.C. § 1349.  The substantive crime underlying the conspiracy, wire fraud, includes as elements of the offense the terms “defraud” and “fraudulent.”  18 U.S.C. § 1343.  Further, as described in Findings of Fact Number 4 above, Petitioner was involved in fraudulently obtaining nursing credentials for other individuals so that those individuals could fraudulently obtain licenses and jobs as nurses.  Therefore, Petitioner’s felony offense was related to fraud.

c. Petitioner’s felony conviction was in connection with the delivery of a health care item or service.

The final element required to exclude an individual under 42 U.S.C. § 1320a-7(a)(3) is whether the felony offense was “in connection with the delivery of a health care item or service.”

The term “in connection with” is equivalent to the term “relating to,” discussed above.  As a result, “in connection with” similarly means that there only has to be a nexus or common-sense connection.  Quayum, 34 F. Supp. 2d at 143; see Charice D. Curtis, DAB No. 2430 at 5 (2011).  Therefore, the “in connection with” phrase is applied in the same broad manner as the “relating to” phrase.  As explained by the Friedman court:

Congress used “relating to” and “in connection with” each to denote a factual relationship–respectively, the relationship between the facts underlying a person’s conviction and conduct that would qualify as “fraud”; and the relationship between that conduct and the delivery of health care.

686 F.3d at 822.  Because the “in connection with” phrase means that there simply needs to be a factual connection between the criminal conduct and the delivery of a health care item or service, exclusions under § 1320a-7(a)(3) are not limited “to offenses involving the actual delivery of healthcare.”  Curtis, DAB No. 2430 at 5; see also Baxter v. Kennedy, 136 F.4th 70, 86 (4th Cir. 2025) (holding that mandatory exclusion under § 1320a-7(a)(1) means that the conviction must “merely . . . be related to . . . a delivery [of an item or service].  So there was no need to prove that [the excluded individual’s company] shipped an item to an identified [Medicaid participant].  The causal chain that [the excluded individual] pleaded to–misbranding as an attempt to get [Medicaid] to cover [a new medication]–is more than enough.”).

As described in Findings of Fact numbers 4c through 4e, Petitioner’s criminal conduct allowed individuals to fraudulently obtain nursing credentials and, in turn, obtain nursing jobs in the health care field.  Therefore, Petitioner’s crime was intended to cause, and did cause, unqualified individuals to provide nursing services to patients through “unwitting health care providers throughout the country” who hired the unqualified individuals.  IG

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Ex. 5 at 7.  This indirect, but clear, connection between Petitioner’s crime and the delivery of a health care item or service, is sufficient to meet the “in connection with” element for exclusion.

Petitioner disagrees that his felony conviction was in connection with the delivery of a health care item or service.  P. Br. at 6.  Petitioner argues that the Friedman case indicates that there must be a “direct relationship” between the criminal conduct and the delivery of health care items or services.  P. Br. at 11-12; see also June 11 Motion at 3-4.  Petitioner asserts that it is not a sufficiently direct connection just because some “graduates secured employment at federally funded facilities,” and that “Petitioner’s role was strictly educational, with no involvement in billing, patient care, or licensure fraud.”  P. Br. at 6-8; see P. Ex. 3.  Petitioner states that his company, Unparalleled Review, was legally established as an educational entity specializing in test preparation for domestically and internationally educated individuals seeking to take the nursing board examination.  P. Br. at 9-10; see P. Ex. 4.  As a result, “the fraud was purely educational,” and “students were not yet licensed or providing care during fraud.”  June 11 Motion at 2, 5.  The IG’s position is, Petitioner argues, overbroad because mandatory exclusions are for providers who directly threaten program integrity, and not educators.  June 11 Motion at 5.  Finally, Petitioner asserts that many of the individuals who received fraudulent diplomas went on to pass nursing licensing examinations, receive advanced degrees, and work as nurse practitioners, and that this demonstrates “that the fraudulent diplomas did not result in unqualified practitioners endangering the public.”  P. Br. at 7, 11; P. Ex. 2.

Although Petitioner believes that his criminal conduct is far removed from the delivery of health care items or services, it is, as explained above, sufficiently connected to it.  The Friedman case, discussed in detail earlier, states the opposite to Petitioner’s position, making it clear that the “in connection with” element does not mean a direct connection with the delivery of health care items or services.  Petitioner’s own argument, that his students have gone on to higher levels of education and licensure, shows how connected his criminal conduct was to providing health care items or services to patients.  Petitioner enabled individuals, who were not qualified to be licensed as nurses, to take the licensure examination and, once licensed, to obtain employment as nurses with health care entities.

2. Petitioner must be excluded from participation in all federal health care programs for a minimum of five years.

As indicated above, the record shows that Petitioner was convicted, as that term is defined in 42 U.S.C. § 1320a-7(i), and that conviction meets all of the elements under 42 U.S.C. § 1320a-7(a)(3) for a mandatory exclusion.  Therefore, Petitioner is subject to a mandatory minimum exclusion of at least five years.  42 U.S.C. § 1320a-7(c)(3)(B).

Petitioner disagrees that a mandatory exclusion should be imposed on him.  He asserts that he was actually convicted of a felony offense that is described in a provision for a

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permissive, rather than mandatory, exclusion (i.e., 42 U.S.C. § 1320a-7(b)(1)).  P. Br. at 4-5.  Petitioner moved for remand of this case to the IG to consider whether a permissive exclusion under § 1320a-7(b)(1) ought to be imposed in place of the mandatory exclusion.  June 11 Motion at 2.  The IG opposes this, arguing that “where an exclusion may be based on both a mandatory or permissive authority, the mandatory authority must be used.”  IG Reply at 1-2.

The IG is correct.  Darling Navidad Oki, DAB No. 3176 at 2 (2025) (“[W]hen an offense falls under the mandatory exclusion statute, federal courts have ‘repeatedly held’ that the I.G. is required to impose a mandatory exclusion even if an individual’s conduct also falls within the scope of the permissive exclusion provision.”).  When the statutory elements for a mandatory exclusion are met, the IG must impose the exclusion.  Travers v. Shalala, 20 F.3d 993, 998 (9th Cir. 1994).  Therefore, I deny Petitioner’s motion for a remand to the IG to consider whether a permissive exclusion should be imposed because the IG appropriately imposed a mandatory exclusion in this case.3

3. The IG has proven the existence of two aggravating factors that justify a length of exclusion beyond the minimum five-year requirement.

Although individuals excluded under 42 U.S.C. § 1320a‑7(a)(3) must be excluded for a minimum of five years, the statute does not preclude a longer term of exclusion.  The applicable regulations provide a list of aggravating factors that may serve as the basis for extending an exclusion beyond five years.  42 C.F.R. § 1001.102(b).  As explained below, the IG proved the existence of two aggravating factors listed in the regulations.

a. The District Court sentenced Petitioner to 27 months of incarceration.

The regulations provide the following as an aggravating factor:  “The sentence imposed by the court included incarceration.”  42 C.F.R. § 1001.102(b)(5).  The District Court sentenced Petitioner to 27 months of incarceration.  IG Ex. 4 at 2; P. Ex. 1 at 2.  Therefore, I conclude that the IG proved this aggravating factor.

b. Petitioner’s acts that resulted in conviction, or similar acts, were committed for more than one year.

The regulations provide the following as an aggravating factor:  “The acts that resulted in conviction, or similar acts, were committed over a period of one year or more.”  42 C.F.R. § 1001.102(b)(2).

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Count 1 of the Indictment alleged, and Petitioner admitted, that the conspiracy to commit wire fraud lasted “[f]rom at least as early as in or around April of 2016, and continuing through in or around July of 2021.”  IG Ex. 2 at 9; IG Ex. 5 at 6.  However, Petitioner asserts that his personal criminal conduct only lasted for one year, from April 2018 until an unspecified date in 2019.  P. Br. at 13.  Petitioner states that he immigrated to the United States due to marriage, which took place in November 2017.  P. Br. 12.  Petitioner also asserts that he started working at the Palm Beach Nursing School after receiving work authorization in April 2018.  P. Br. at 13.  He further states that the employment ended about a year later.  P. Br. at 13.  The IG did not respond to this argument.

Petitioner submitted his work authorization documentation that shows Petitioner was authorized to work in the United States starting on April 17, 2018.  P. Ex. 5 at 4; see also P. Ex. 5 at 6.  Further, Unparalleled Review, the company that Petitioner owned and used as a place to recruit students for the conspiracy, was not created until early 2018.  P. Ex. 4 at 1-6; IG Ex. 5 at 2-4, 8.  This evidence supports Petitioner’s involvement in the conspiracy no earlier than 2018.

Petitioner provided little documentary support for the end of his role in the conspiracy.  Petitioner included a Certificate of Appreciation from the Palm Beach School of Nursing for the “Year of 2018-2019.”  P. Ex. 3 at 1.  However, this does not prove that his involvement in the conspiracy ended in 2019.

Petitioner’s judgment of conviction expressly states that Petitioner’s criminal offense ended on July 31, 2021.  CMS Ex. 4 at 1; P. Ex. 1 at 1.  Petitioner’s argument that his criminal conduct ended before that date is an impermissible collateral attack on that judgment.  42 C.F.R. § 1001.2007(d).  Therefore, even though Petitioner did not join the conspiracy until April 2018, his criminal conduct lasted for more than three years.  As a result, I conclude that Petitioner’s criminal acts lasted for more than a year.

4. Petitioner did not prove the existence of any mitigating factors to reduce the length of exclusion imposed by the IG.

If there are aggravating factors that justify increasing the length of exclusion to exceed five years, then the length of exclusion can be reduced if certain mitigating factors listed in the regulations are present in a case.  42 C.F.R. § 1001.102(c).  Petitioner asserts several matters as mitigating, but only one listed in the regulations (i.e., cooperation with law enforcement authorities).  P. Br. at 17-31.  Petitioner has the burden to prove any mitigating factors that he alleges.  See Stacey R. Gale, DAB No. 1941 (2004); Standing Order ¶ 7.  For the reasons explained below, I conclude that the record does not support the existence of the alleged mitigating factor.

Petitioner claims that he cooperated with federal authorities and provided evidence concerning the conspiracy to the Board of Nursing.  P. Br. at 19.

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To qualify as a mitigating factor, an excluded individual must show the following:

(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.

42 C.F.R. § 1001.102(c)(3).

While Petitioner alleges cooperation, he did not submit evidentiary support for it.  Evidence that federal or state officials took one of the actions specified in the regulations is essential to prove cooperation as a mitigating factor because that is the only way to validate the cooperation.  Gale, DAB No. 1941 at 10-11; see also 63 Fed. Reg. 46,676, 46,681 (Sept. 2, 1998); 57 Fed. Reg. 3298, 3315 (Jan. 29, 1992).  Because there is no such evidence in the record, I conclude Petitioner did not prove that this mitigating factor.

Petitioner also asserts a variety of other mitigating factors that are not listed in the regulations.  While I cannot consider these arguments when determining the reasonableness of the length of exclusion, I discuss them to acknowledge the arguments.

Petitioner asserts that his role in the conspiracy was the first job that he had after gaining work authorization in the United States and that he thought the conspiracy was operating as a legitimate business.  P. Br. at 18, 22.  Petitioner also states that there is no evidence of illicit financial gain or allegations he profited from fraudulent activity.  P. Br. at 18.  However, Petitioner admitted, when pleading guilty, that he purchased fraudulent diplomas and transcripts from Palm Beach Nursing School and sold them to students, making $367,500.  IG Ex. 5 at 8.  Petitioner specifically admitted that this involved distributing “false and fraudulent transcripts and diplomas” to co-conspirators representing that those co-conspirators attended Palm Beach School of Nursing or other schools, when they had not.  IG Ex. 5 at 7.  Petitioner also received $66,230 in payments from the Palm Beach Nursing School, which, with the $367,500 he made from selling the diplomas and transcripts, totaled $433,730 for his role in the conspiracy.  IG Ex. 5 at 8.  Significantly, in the Plea Agreement, Petitioner agreed to pay the United States, as a forfeiture, the entire $433,730 that he received for his part in the conspiracy.  P. Ex. 3 at 4-5.  Petitioner engaged in fraud and profited significantly from his fraudulent conduct.

Petitioner also asserts that he had a minimal role in the conspiracy and “[h]is involvement was strictly peripheral to the institution’s decisions.”  P. Br. at 20-21.  Petitioner states

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that he had no authority over admissions, diploma issuance, or financial affairs, and that others made policies and were the public faces of the school.  P. Br. at 21.  Petitioner cites the United States Sentencing Guidelines to argue that his minimal role in the conspiracy warrants a downward adjustment.  P. Br. at 21.  Similarly, Petitioner asserts that the record is not clear as to his exact role in the conspiracy, and the District Court’s decision not to order restitution shows the lack of an identifiable victim.  P. Br. 23-24.

Petitioner’s role in the conspiracy was laid out in Findings of Fact number 4.  While Petitioner was not in charge of the conspiracy, he admitted to procuring and selling fraudulent diplomas and transcripts to his students.  The District Court found, under the Sentencing Guidelines, that Petitioner’s “Role in the Offense” made him ineligible for either an aggravating or mitigating role adjustment.  IG Ex. 3 at 3.  Therefore, while Petitioner did not lead the conspiracy, he was an active participant.  Further, while the District Court did not order restitution, it did order Petitioner to forfeit his profits from the conspiracy, consistent with the Plea Agreement.  IG Ex. 4 at 8; P. Ex. 1 at 8.

Petitioner further argues that he has no prior criminal record and that he has contributed positively to the community, as evidenced by letters from many people.  P. Br. at 22-23; P. Ex. 6; E-File Doc. Nos. 9-11.  Further, Petitioner discussed in detail his success in his medical residency program and the service he provided to various individuals during that period of time.  Because Petitioner was under criminal charges during this time period, Petitioner believes that it shows his rehabilitation.  P. Br. at 24-29; P. Exs. 6-8.  Petitioner also states that his good conduct in prison had reduced his period of incarceration to 23 months.  P. Br. at 30-31; P. Exs. 9-10.  However, none of these matters are mitigating factors that I can consider.  I may only consider mitigating factors listed in the regulations to reduce the length of an exclusion.  Baldwin Ihenacho, DAB No. 2667 at 8 (2015).

5. The 12-year length of Petitioner’s exclusion is not unreasonable based on a qualitative analysis of the aggravating factors in this case.

When considering the length of exclusion, “[t]he evaluation does not rest on the specific number of aggravating or mitigating factors or any rigid formula for weighing those factors, but rather on a case-specific determination of the weight to be accorded each factor based on a qualitative assessment of the circumstances surrounding the factors in that case.”  Farzana Begum, M.D., DAB No. 2726 at 2 (2016).  However, an excluded individual’s age, financial condition, and employment prospects are not considered.  Jeremy Robinson, DAB No. 1905 (2004); Zahid Imran, M.D., DAB No. 2680 at 14 (2016).  Ultimately, I must decide whether the 12-year length of exclusion is unreasonable, i.e., whether it is within a reasonable range based on the relevant factors.  42 C.F.R. § 1001.2007(a)(1)(ii); 57 Fed. Reg. 3298, 3321 (Jan. 29, 1992).

When conducting this analysis, it is important to note that health care providers do not have a fundamental right to participate in federal health care programs; therefore, an

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exclusion only needs to be rationally related to a legitimate government interest, such as patient health or protecting federal health care programs from fraud and abuse.  Parrino v. Price, 869 F.3d 392 (6th Cir. 2017).  For exclusions, the trustworthiness of the excluded individual is a key question.  See Morgan, 694 F.3d at 538 (“[T]he legislative history to § 1320-7(a)(3) as it was originally enacted indicates that it was specifically intended to protect federal programs from untrustworthy individuals . . . .”); see also Susan Malady, R.N., DAB No. 1816 at 9 (2002).  Because the purpose of an exclusion is to protect federal health care programs from fraud and abuse, it is remedial and not punitive.  Manocchio v. Kusserow, 961 F.2d 1539, 1541-42 (11th Cir. 1992).

Turning to the aggravating factors in this case, Petitioner participated in a criminal conspiracy for more than three years.  As discussed earlier, Petitioner objects that he only joined the conspiracy in 2018 and left it in 2019.  However, as also noted earlier, the judgment of conviction states that his criminal offense ended in July 2021, and I must accept that as the end of his conduct.

The duration of Petitioner’s criminal acts is more than three times the minimum one-year amount needed for this to be an aggravating factor.  This multi-year length of criminal conduct weighs heavily against a finding of Petitioner’s trustworthiness to participate in federal programs.  See Janice Cassandra Wrenn, DAB No. 3118 at 17 (2023).

Petitioner was also sentenced to 27 months in prison.  A prison sentence of as little as nine months is considered to be relatively substantial for exclusion purposes.  Jason Hollady, M.D., DAB No. 1855 at 12 (2002).  Petitioner’s sentence is for three times longer than the nine months in Hollady and constitutes a significant basis to increase the length of exclusion.  Although Petitioner alleged that his prison sentence has been reduced for good behavior, it is the 27-month sentence that I consider for purposes of an aggravating factor.  Hameedi v. Becerra, No. 23-CV-2654, 2024 WL 4212061 at *4 (E.D.N.Y. Sept. 17, 2024).

Both a long period of criminal conduct and a long period of incarceration provide a basis for the IG’s lengthy 12-year exclusion.  There is little doubt that the IG considered the specific crime, that of conspiracy to commit wire fraud, as a reason to doubt Petitioner’s trustworthiness to participate in federal programs.  Petitioner sold falsified nursing diplomas and transcripts to 49 persons knowing that the purpose of those documents was for unqualified individuals to obtain nursing licenses and nursing jobs.  While Petitioner states in briefing that many of these persons have gone on to productive careers in nursing, Petitioner’s fraudulent conduct undermined the state licensing and educational requirements for nurses, which is meant to ensure that nurses are competent to treat patients.  Petitioner put the public at risk for monetary gain and did so by selling false documentation that was submitted to state licensing boards and health care entities.

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Exclusions are imposed to protect federal health care programs and those programs’ beneficiaries.  While 12 years may be near the high end of the “reasonable range” for this case, it is still reasonable considering the aggravating factors and the potential threat that Petitioner poses to federal health care programs.

VIII.  Conclusion

I affirm the IG’s determination to exclude Petitioner for 12 years from participating in all federal health care programs under 42 U.S.C. § 1320a-7(a)(3).