Elfatih Mohamed Ibrahim, DAB CR6738 (2025)

DECISION

Respondent, the Acting Inspector General of the United States Department of Health and Human Services (the IG), excluded Petitioner, Elfatih Mohamed Ibrahim, from participation in Medicare, Medicaid, and all other federal health care programs for 15 years based on a criminal conviction for an offense related to the delivery of an item or service under Medicare or a state health care program.  Petitioner challenges his exclusion before me.  For the reasons stated below, I affirm the IG's exclusion action and find the 15-year exclusion period selected by the IG not unreasonable.

I.    Background and Procedural History

By letter dated July 31, 2024, the IG notified Petitioner of his exclusion for 20 years from participation in Medicare, Medicaid, and all federal health care programs under section 1128(a)(4) of the Social Security Act (Act).  IG Ex. 1.  The IG explained she took this action based on Petitioner's convictions in New Jersey and New York state courts for a criminal offense related to the unlawful manufacture, distribution, prescription, or dispensing of a controlled substance.  Id. at 1.

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The IG cited three aggravating factors to justify extending Petitioner's exclusion period beyond the minimum period of five years:

(1) The acts that resulted in the conviction, or similar acts, caused or were intended to cause a financial loss 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; and
(3) The sentence imposed included incarceration.

Id.  

Petitioner timely sought review by an administrative law judge (ALJ) in the Civil Remedies Division, resulting in my designation to hear and decide this case.  I held a pre-hearing conference by telephone with the parties on December 3, 2024, the substance of which is summarized in my December 4, 2024 Order Summarizing Pre-hearing Conference and Setting Briefing Schedule (Summary Order).

On February 4, 2025, the IG issued an amended notice of exclusion to Petitioner, indicating she had modified the basis for Petitioner's exclusion to arise under section 1128(a)(1) of the Act, meaning Petitioner's offense of conviction was 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.  IG Ex. 2 at 1.

The IG clarified she based Petitioner's exclusion solely on his New York state conviction without regard for his New Jersey state conviction.  Id.  The IG also identified a fourth aggravating factor to justify a 20-year period of exclusion, namely an adverse action taken against him by another government agency or board based on the same set of circumstances that served as the basis for exclusion.  Id.  Finally, the IG stated the original effective date of Petitioner's exclusion remained in effect.  Id.

On April 9, 2025, the IG issued another modified notice of exclusion to Petitioner to inform him that after reviewing "new" evidence that established Petitioner's cooperation within the meaning of 42 C.F.R. § 1001.102(c), the IG determined it appropriate to reduce Petitioner's period of exclusion to 15 years.  IG Ex. 15 at 1.  The IG again stated Petitioner's initial effective date of exclusion remained in effect.  Id.

II.    Petitioner's Representation

Two attorneys, Kenneth Haber and Michael Tabacco, appeared at the pre-hearing conference with Petitioner to ostensibly represent him.  I directed them to file notices of appearance afterwards.  Petitioner filed a "Notice of Appearance And Issues on Appeal" for Mr. Haber on December 12, 2024 that bore Mr. Haber's e-signature.  The DAB E-file

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system identifies both Mr. Haber and Mr. Tabacco as authorized users with access to this case, although only one e-mail address associated with Mr. Haber was provided for both.  Because Mr. Tabacco failed to file a notice of appearance, register for separate access to this case in the DAB E-file system, or otherwise participate in any capacity, I do not consider him to be counsel for Petitioner in this proceeding.

More concerning, I cannot discern Mr. Haber's level of involvement in this case.  Petitioner filed all pleadings and exhibits in this case directly in the DAB E-file system under his own name.  The pleading he filed in response to the IG's brief is not a brief containing arguments and legal citation.  It is simply his own statement, written from the first-person perspective, which should have been submitted as an exhibit.  Summary Order at 4.

Petitioner also failed to file the short-form brief provided to him with my Summary Order, though I advised Mr. Haber during the pre-hearing conference I required him to provide that form or the information elicited by it in his own briefing.  Finally, none of the exhibits Petitioner submitted are paginated or labeled, despite receiving explicit instructions and more than one opportunity to do so.  These failures suggest Mr. Haber did not review my Summary Order or meaningfully participate in the compilation of exhibits to support Petitioner's case.  Nor did he submit a brief in response to the IG's filings.  The only arguments that may have come from Mr. Haber are found in the Notice of Appearance, which improperly includes a discourse on issues on appeal.

The sur-reply filed by Petitioner bearing Mr. Haber's electronic signature does contain some semblance of legal argument but largely duplicates Petitioner's declaration.  These arguments are rudimentary and speak to mitigating factors not recognized by the Secretary's regulations, a mistake more commonly made by pro se filers.  They do not reflect reasoned legal analysis one could reasonably expect from an attorney who self-identifies as a former federal prosecutor and former senior attorney for the IG.  P. Sur-reply at 6.  The additional exhibits Petitioner submitted with his sur-reply reinforce the impression that Mr. Haber had little to do with their filing; Petitioner filed them without first seeking leave and again failed to include proper labeling or pagination.  They also include three of the IG's proposed exhibits, a mistake few lawyers would make.

In short, the rudimentary quality of Petitioner's pleadings and exhibits, the failure to comply with basic filing protocols, and the fact that Petitioner directly uploaded all the documents himself suggest Mr. Haber had little to no involvement in this case.  Mr. Haber appeared as counsel in a pre-hearing conference before me and subsequently filed a notice of appearance in this matter as Petitioner's attorney.  He was obliged to zealously represent Petitioner or file notice of his withdrawal from representation.  He has not done either.

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I note these irregularities to establish a basis to treat Petitioner's pleadings and arguments as if he were proceeding pro se, meaning I have construed his claims as broadly as possible to ascertain the best version of his arguments and overlooked Petitioner's filing irregularities.

III.    Admission of Exhibits and Decision on the Record

The IG filed a brief (IG Br.) and ten proposed exhibits (IG Exs. 1-10), while Petitioner filed a declaration stylized as a brief (P. Br.) and two proposed exhibits (P. Exs. 1-2).1  The IG submitted a reply brief (IG Reply) and, without seeking leave to do so, five additional exhibits (IG Exs. 11-15).  I required the IG to file a motion for leave to amend her pre-hearing exchange, which I subsequently granted.

I also gave Petitioner leave to file a sur-reply (P. Sur-reply).  Petitioner did so and submitted 11 additional exhibits, including three of the IG's proposed exhibits.  I directed him to refile these exhibits with proper pagination and labelling without resubmitting the IG's proposed exhibits.  Petitioner resubmitted eight proposed exhibits (P. Supp. Exs. 1-9) but did not properly label or paginate them.  In addition, he identified them as P. Exhibits 1 through 9 but omitted P. Ex. 8.  See DAB E-file Dkt. C-25-10, Doc. Nos. 21b-21i.  Owing to Petitioner's deemed pro status, I have not required him to correct these defects.  I refer to Petitioner's proposed exhibits as they are identified in the DAB E-file system, meaning as Exhibits 1 through 7 and 9.

In the absence of any objections, I admit into evidence IG Exhibits 1 through 15, P. Exhibits 1 and 2, and P. Supplemental Exhibits 1 through 7 and 9.

The IG does not believe an in-person hearing to be necessary.  IG Br. at 9.  Nor has she sought to cross-examine Petitioner based on his declaration.  Petitioner asks for the opportunity to appear and convey his remorse to me directly, P. Br. at 1, but there is no need for me to hold an in-person hearing to allow Petitioner to reiterate the sentiments already preserved in his written declaration.  Further, I do not doubt Petitioner's sincerity.  But neither the validity nor the intensity of Petitioner's remorse can affect the outcome here.  Accordingly, I find an in-person hearing would serve no purpose and decide this matter on the written record.  Civ. Remedies Div. P. § 19(d).

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IV.    Issues

Whether the IG has a basis to exclude Petitioner from participation in federal health care programs under section 1128(a)(1) of the Social Security Act, and if so, whether the 15-year period of exclusion selected by the IG is not unreasonable.  42 C.F.R. § 1001.2007.

V.    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).

VI.    Applicable Law

Section 1128(f) of the Act provides Petitioner with rights to an administrative hearing and judicial review of the final action of the Secretary of Health and Human Services (Secretary).  42 U.S.C. § 1320a-7(f).  The right to a hearing before an ALJ is set forth in 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 Secretary must exclude from participation in federal health care programs any individual that has been convicted for an offense related to the delivery of an item or service under Medicare or any State health care program, including the performance of management or administrative services relating to the delivery of items or services under any such program.  42 U.S.C. § 1320a-7(a)(1); 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.  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.  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).

The Act mandates a minimum five-year period of exclusion if imposed under section 1128(a) of the Act.  42 U.S.C. § 1320a-7(c)(3)(B).  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).  The IG must consider the mitigating factors identified by the regulations as a basis for reducing the period of exclusion, and then only if she has applied aggravating factors to increase the exclusion period beyond five years.  42 C.F.R.

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§ 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).

VII.    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.

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

The Act mandates exclusion from participation in Medicare, Medicaid, and all federal health care programs where an individual has been convicted, under federal or State law, 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); 42 C.F.R. § 1001.101(a).  The IG has established by a preponderance of the evidence the elements necessary to exclude Petitioner.

1. Relevant Facts

At times relevant to his offense, Petitioner was a pharmacist licensed to practice in New York.  IG Ex. 3 at 6.  On May 3, 2019, a New Jersey state grand jury returned an indictment against Petitioner charging him with conspiracy to commit Health Care Claims Fraud, Distribution of Prescription Legend Drugs, Medicaid Fraud, Distribution of Controlled Dangerous Substances, and Possession with Intent to Distribute Prescription Legend Drugs.  IG Ex. 5 at 2, 4, 7, 11, 12.  The grand jury accused Petitioner, with others, of submitting or attempting to submit false claims for reimbursement of health care services as well as knowingly distributing prescription drugs by unlawful prescription or administration by a practitioner authorized to prescribe medicine.  Id. at 2-3, 5, 6.

Meanwhile, the New Jersey Attorney General's office contacted New York's Medicaid Fraud Control Unit (MCFU) and requested assistance in August 2018.  IG Ex. 4 at 1.  The MCFU initiated its own investigation into Petitioner and his pharmacy and eventually sought to prosecute him.  Id. at 1-2.  On October 4, 2021, Petitioner entered into a plea and cooperation agreement with the Attorney General for New York.  IG Ex. 3.  Petitioner agreed to be charged with one count of Grand Larceny and one count of Offering a False Instrument for Filing.  Id. at 1.  Petitioner stipulated to certain facts to

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execute the plea agreement.  He admitted that between approximately January 2013 and August 2018, acting in concert with others, he caused false claims exceeding $1,000,000 in value to be submitted to the New York Medicaid program.  Id. at 7.  He also admitted he caused a false certification statement to be submitted to the New York Medicaid program that falsely represented his pharmacy's full compliance with Medicaid rules and regulations.  Id.  Petitioner agreed to repay $1,623,989.36 in restitution under terms set forth in a separate civil settlement agreement.  Id. at 9.

On April 11, 2022, the New York Attorney General filed an information against Petitioner charging him with one count of Grand Larceny and one count of Offering a False Instrument for Filing.  IG Ex. 6 at 2-3.  The Attorney General asserted Petitioner, acting in concert with others, stole over $1,000,000 from the New York Medicaid program by submitting reimbursement claims that falsely represented Petitioner's pharmacy had dispensed medications to insured patients when those medications were not in fact dispensed.  Id. at 2.  The Attorney General also charged Petitioner with submitting a false certification statement to the New York Medicaid program that falsely represented his pharmacy's full compliance with Medicaid rules and regulations.  Id. at 3.

The New York state court accepted Petitioner's guilty plea and entered judgment of conviction against him for the grand larceny and false instrument filing offenses that same day.  IG Ex. 4 at 1; IG Ex. 7 at 1.  On June 23, 2022, the New York state court sentenced Petitioner to six months' incarceration and five years of probation.  Id.  The state court also ordered Petitioner to repay $1,623,989.36 in restitution.  IG Ex. 4 at 1.

On May 19, 2022, after being charged with professional misconduct, Petitioner applied to surrender his license to practice pharmacy to New York's State Board for Pharmacy.  IG Ex. 9 at 1-2.  He admitted to professional misconduct and cited his offense conduct as the basis for his request.  Id. at 4-5.  On September 13, 2022, the pharmacy board granted Petitioner's application and accepted the surrender of his license.  Id. at 2.

2. Petitioner was "convicted" of a criminal offense within the meaning of the Act

Petitioner executed a plea agreement with the New York Attorney General to resolve the criminal charges against him.  IG Ex. 3.  The state court accepted Petitioner's guilty plea and entered judgment against him.  IG Ex. 7 at 1.  The Act considers a person "convicted" when judgment of conviction has been entered against them or when a plea of guilty or nolo contendere has been accepted by a federal, state, or local court.  42 U.S.C. § 1320a-7(i)(1), (3); 42 C.F.R. § 1001.2.  The IG has established Petitioner was convicted of a criminal offense within the meaning of the Act.

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3. Petitioner's criminal offense is related to the delivery of an item or service under Medicare or a state health care program within the meaning of section 1128(a)(1) of the Act.

Petitioner, a pharmacist, pleaded guilty to one count of Grand Larceny and one count of Offering a False Instrument for Filing.  IG Ex. 6 at 2-3.  On their face these charges do not necessarily relate to the delivery of an item or service of health care.  But Petitioner's offenses of conviction need only be "related to" the delivery of an item or service under Medicare or a state health care program.  The term "related to" simply means that there must be a nexus or common-sense connection.  See Friedman v. Sebelius, 686 F.3d 813, 820 (D.C. Cir. 2012) (describing the phrase "related to" in another part of section 1320a-7 as "deliberately expansive words," "the ordinary meaning of [which] is a broad one," and one that is not subject to "crabbed and formalistic interpretation.") (internal quotation marks omitted); see also Quayum v. U.S. Dep't of Health & Human Servs., 34 F. Supp. 2d 141, 143 (E.D.N.Y. 1998).  In determining the relatedness of an offense, I am not bound to the elements of the charged offense.  Berton Siegel, D.O., DAB No. 1467 at 4 (1994) ("[i]t is not the labeling of the offense under the state statute which determines whether the offense is program-related").  Instead, I examine the nature of the offense, which properly includes the "facts upon which the conviction was predicated."  Id.

Here, looking beyond the charged offenses, the connection between Petitioner's offense conduct and the delivery of a health care item or service to the Medicaid program is clear.  Petitioner stipulated that for over five years, he conspired with others to cause false claims exceeding $1,000,000 in value to be submitted to the New York Medicaid program.  IG Ex. 3 at 7.  He and his co-conspirators did so by submitting false claims for reimbursement to Medicaid-funded managed care organizations for prescription medications that were never dispensed to Medicaid patients.  Id.  The submission of false claims to the Medicaid program plainly relates to the delivery of items or services to that program.

Petitioner also submitted a certification statement to the New York Medicaid program that falsely represented his pharmacy's full compliance with Medicaid rules and regulations.  Id.  Without making this false representation, Petitioner would not have been able submit claims to the Medicaid program at all.  The stipulations Petitioner made to resolve both offenses of conviction make clear his criminal conduct occurred in connection with the delivery of an item or service to the Medicaid program.

The connection between Petitioner's offenses of conviction and the delivery of items or services to the Medicaid program is further reinforced by the fact that the state court ordered him to pay $1,623,989.36 in restitution.  IG Ex. 4 at 1; IG Ex. 7 at 1; see also IG Ex. 3 at 6, 9.  It is true that the "Certificate of Disposition" proffered by the IG does not

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identify the New York Medicaid program as the victim to whom restitution was owed.2  Nevertheless, it is beyond dispute that Petitioner paid restitution to that program.  The charges against him specified he caused that specific amount of loss to the New York Medicaid program.  IG Ex. 6 at 2.  He also stipulated to causing that same amount of loss to the New York Medicaid program in his plea agreement.  IG Ex. 3 at 9.  Finally, the IG submitted an "Action Report" from an assistant attorney general associated with New York's MCFU memorializing the fact that Petitioner entered into a civil settlement agreement with the MCFU to pay $1.62 million in restitution.  IG Ex. 4 at 2.

Taken together, these facts establish Petitioner was ordered by the state court to repay $1,623,989.36 to New York's Medicaid program.  Payment of restitution to a covered healthcare program for losses incurred as a result of criminal conduct demonstrates the nexus between the 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.").

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

Because I have concluded a basis exists to exclude Petitioner under 42 U.S.C. § 1320a-7(a)(1), he must be excluded for a minimum period of five years.  42 U.S.C. § 1320a-7(c)(3)(B); 42 C.F.R. §§ 1001.102(a), 1001.2007(a)(2).  Neither I nor the IG have the discretion to impose a lesser period of exclusion under the Act.

3. The IG has established four aggravating factors to support an exclusion period beyond the five-year statutory minimum.

The regulations establish aggravating factors that the IG may consider to lengthen the period of exclusion beyond the five-year minimum for a mandatory exclusion.  42 C.F.R. § 1001.102(b).  In this case, the IG applied four aggravating factors to impose a 15-year term of exclusion:  (1) the acts that resulted in the conviction, or similar acts, caused or were intended to cause a financial loss 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) another government agency or board took an adverse action against Petitioner based on the same set of circumstances that served as the basis for exclusion.  IG Ex. 1 at 1; IG Ex. 2 at 1; 42 C.F.R. § 1001.102(b)(1), (2), (5), (9).

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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 he executed to resolve the criminal action against him, Petitioner agreed to repay $1,623,989.36 in restitution.  IG Ex. 3 at 6, 9.  The state court ordered him to pay that same amount in restitution.  IG Ex. 4 at 1; IG Ex. 7 at 1.  Restitution is an appropriate measure to demonstrate program loss.  See Summit S. Shah, M.D., DAB No. 2836 at 8 (2017) (citations omitted).  The IG has established Petitioner was responsible for considerably more than $50,000 in loss to the Medicaid program.

2. The IG established that 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).

In his plea agreement with New York's Attorney General, Petitioner conceded the criminal conspiracy in which he participated, and which resulted in his conviction that forms the basis for the IG's exclusion action against him, lasted from approximately January 2013 to August 2018.  IG Ex. 3 at 7.  The IG has established Petitioner's criminal conduct occurred for over one year.

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

The state court imposed a sentence of six months' incarceration for Petitioner's admitted criminal conduct.  IG Ex. 7 at 1.  The IG has established Petitioner's conviction resulted in a sentence that 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 May 19, 2022, after being charged with professional misconduct, Petitioner applied to surrender his license to practice pharmacy to New York's State Board for Pharmacy.  IG Ex. 9 at 1-2.  He admitted to professional misconduct and cited his offense conduct as the basis for his request.  Id. at 4-5.  New York's pharmacy board granted Petitioner's application and accepted the surrender of his license on September 13, 2022.  Id. at 2.

The pharmacy board's acceptance of Petitioner's offer to surrender his license is an adverse action.  See Wilton Clinton Meeks, III, DAB No. 3128 at 10-11 (2024) (affirming a pharmacist's surrender of his pharmacy license "had 'the same effect as a license revocation[.]'" for purposes of establishing this aggravating factor).  The IG has

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established Petitioner was the subject of an adverse action by another government entity for the same circumstances that provided the basis for his exclusion.

4. The IG recognized a mitigating factor to reduce Petitioner's exclusion period.

The Secretary's regulations identify only three mitigating factors I may consider to reduce a period of exclusion:  (1) convictions for three or fewer misdemeanor offenses that resulted in less than $5,000 in program loss; (2) evidence from a criminal proceeding demonstrating a mental, physical, or emotional condition that reduced a petitioner's culpability; and (3) cooperation with federal or state officials resulting in the conviction or exclusion of others, the investigation of additional cases, or the imposition of a civil money penalty.  42 C.F.R. § 1001.102(c).

In the initial and first amended notices of exclusion, the IG did not recognize or apply a mitigating factor.  However, Petitioner declares he cooperated with local prosecutors in New York and New Jersey who could confirm the nature and significance of that cooperation.  P. Br. at 2.  To her credit,3 counsel for the IG investigated this claim, contacted three state prosecutors familiar with Petitioner's criminal cases, and obtained their written statements.  IG Reply at 1-2.  As a result of her efforts, the IG found sufficient evidence to establish Petitioner's cooperation satisfied the regulatory elements to be considered a mitigating factor.  Id., citing IG Exs. 12-14.  The IG then reduced Petitioner's exclusion period from 20 years to 15 based on this mitigating circumstance.  See IG Ex. 15 at 1.

5. A 15-year exclusion period is not unreasonable.

I must uphold the IG's determination as to the length of exclusion unless it is unreasonable.  42 C.F.R. § 1001.2007(a)(1)(ii).  The quality of the aggravating (or mitigating) factors is most important when considering the length of exclusion, and not the sheer number of aggravating factors that are present in a given case.  As the Secretary stated in the preamble to the final rule establishing the exclusion regulations:

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

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

57 Fed. Reg. 3271, 3314-15 (Jan. 29, 1992).

Examining the quality of the aggravating and mitigating factors here, I cannot say the IG's decision to impose a 15-year period of exclusion is unreasonable.  The loss to New York's Medicaid program caused by Petitioner and his co-conspirators is profound; they stole over $1,600,000 from that program.  IG Ex. 3 at 9; IG Ex. 4 at 2; IG Ex. 7 at 1.  It is "entirely reasonable" to give significant weight to loss amounts substantially larger than the minimum regulatory threshold.  Laura Leyva, DAB No. 2704 at 9-10 (2016) (citations omitted).  Petitioner's criminal conduct resulted in a loss to the Medicaid program amounting to approximately 32 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's willingness to participate in a conspiracy intended to bilk New York's health care safety net for the poor of this much money reflects a profound level of untrustworthiness to participate as a biller to that program.  Hussein Awada, M.D., DAB No. 2788 at 7 (2017) ("[t]he 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 criminal offense conduct supports the 15-year exclusion period selected by the IG.  Petitioner knowingly participated in a criminal conspiracy that lasted for over five years.  IG Ex. 3 at 7.  He also submitted a certification statement to the New York Medicaid program that falsely represented his pharmacy's full compliance with Medicaid rules and regulations to ensure he could continue filing false claims to that program.  Id.  Criminal conduct lasting more than four years is "a protracted period of criminal conduct" that shows the individual "is extremely untrustworthy."  Rosa Velia Serrano, DAB No. 2923 at 9 (2019).  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) ("The purpose of this aggravating factor 'is to distinguish . . . petitioners whose lapse in integrity is short-lived from those who evidence a lack of such integrity over a longer period . . . .'").  The IG appropriately weighed the duration of Petitioner's criminal offense as an aggravating factor.

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The seriousness of Petitioner's offense is further reflected by the New York state court's determination to subject Petitioner, a health care provider who pleaded guilty to a non-violent offense, to six months of incarceration.  IG Ex. 4 at 2; 42 C.F.R. § 1001.102(b)(5).  A sentence of incarceration is a "reasonable proxy . . . for untrustworthiness in the context of deciding how much weight to give the aggravating factor for incarceration."  Eugene Goldman, M.D., DAB No. 2635 at 5 (2015).  And "[a]ny period of incarceration can support an increase of the period of exclusion."  Id. at 6; see also Roji Esha, DAB No. 3076 at 29 (2022) ("[W]hile the [90-day] term of incarceration in [p]etitioner's sentence was relatively short, the fact that her sentence included a term of incarceration alone serves as evidence of additional untrustworthiness. . . .").  The IG gave appropriate weight to Petitioner's incarceration in selecting a 15-year exclusion period.

The revocation of Petitioner's pharmacist license by the state of New York corroborates the IG's assessment of his trustworthiness.  New York's pharmacy board believed Petitioner's offense conduct sufficiently serious to preclude him from providing pharmacy services to any patient in the state, not just those for whom the federal and state governments provided payment.  IG Ex. 9 at 2.  Petitioner apparently agreed with that licensing body's assessment, as he surrendered his license even before judgment of conviction was entered against him.  IG Ex. 9 at 4-5; IG Ex. 7 at 1.  The IG gave proper weight to this adverse action in determining Petitioner's length of exclusion.

Finally, I consider whether the IG properly weighed the significance of Petitioner's cooperation as a mitigating factor.  Acting of her own accord, IG counsel secured evidence of Petitioner's cooperation from state prosecutors involved in the criminal actions against him.  IG Exs. 12-14.  One prosecutor confirmed Petitioner acted as a cooperating witness against another individual who the state of New Jersey subsequently arrested and obtained a conviction and sentence of incarceration against.  IG Ex. 13 at 1.  Petitioner also served as an undercover informant to generate evidence in two other cases, though his cooperation did not result in indictments.  Id.  A second prosecutor confirmed the state obtained "several" convictions as a result of Petitioner's cooperation.  IG Ex. 14 at 1.  That prosecutor estimated Petitioner's efforts revealed five individuals unknown to the investigating office and characterized his cooperation as significant because it "exposed weaknesses in return policies for pharmaceuticals that created the opportunity to engage in buy backs on the street and return them after expiration at a significant profit."  Id.

These facts demonstrate Petitioner's cooperation not only met the regulatory requirements to be considered in mitigation but was in fact significant and deserving of great weight.  However, I am satisfied the IG recognized and accounted for the significance of Petitioner's cooperation.  The IG reduced Petitioner's minimum period of exclusion from 20 to 15 years.  IG Ex. 15 at 1.  Her decision to reduce Petitioner's exclusion period by 25%, despite establishing four aggravating factors that include a loss

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amount over a million dollars and an extended period of criminality against a state's health care safety net, is not unreasonable.

6. Petitioner's arguments seek equitable relief beyond my authority.

Petitioner makes several arguments to support his request to reduce his period of exclusion.  First, he expresses the depth and sincerity of his remorse for his criminal conduct.  P. Br. at 1; Notice of Appearance at 1-2.  He assures me his actions did not harm any patient, though he concedes the possibility of harm from tampered medicine.  P. Br. at 2.  Petitioner highlights aspects of his cooperation with New York and New Jersey, noting he fronted over $800,000 for the investigation, operated his pharmacy without reimbursement to facilitate that investigation, voluntarily relinquished medication unknown to the government, and provided "essential evidence and insight" to criminal investigators.  Id.

Petitioner also sets forth mitigating factors identified by the New Jersey state court in his sentencing, including:  his lack of criminal history; the unlikeliness of recurrence; the 2,000 hours of community service he completed as part of his New York sentence; his contributions to the New York Sudanese-American community; his provision of training and educational opportunities to pharmacy students; a character endorsement from a spiritual leader; and his efforts at rehabilitation, including his application to the New York state court to be relieved of any legal barriers to seek employment resulting from his conviction.  P. Sur-Reply.

As I have already explained, the IG properly recognized the significance of Petitioner's cooperation to significantly reduce his minimum exclusion period from 20 to 15 years.  I do not doubt the sincerity of Petitioner's remorse.  I applaud his efforts to rehabilitate himself and contribute to his community.  But neither the sincerity of his remorse nor the mitigating factors he identifies are recognized by the Secretary's regulations.  42 C.F.R. § 1001.102(c).  I cannot give them weight in considering the reasonableness of the period of exclusion selected by the IG.  Matthew J. Girardy, DMD, DAB No. 2987 at 7 (2020) (citation omitted).

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VIII.  Conclusion

For the foregoing reasons, I conclude the IG had a basis to exclude Petitioner from participating in Medicare, Medicaid, and other federal health care programs, and find the 15-year period of exclusion selected by the IG is not unreasonable.