Howard Franklin Jackson, DPM, DAB CR6741 (2025)

DECISION

I uphold the determination of the Inspector General (IG) of the United States Department of Health and Human Services to exclude Howard Franklin Jackson, DPM (Petitioner) from participation in all federal health care programs for 10 years.

I.  Case Background and Procedural History

In a July 31, 2024 notice, the IG excluded Petitioner from participation in all federal health care programs under 42 U.S.C. § 1320a-7(a)(1) for 10 years due to Petitioner's conviction in the United States District Court for the Southern District of Illinois (District Court) of a criminal offense related to the delivery of an item or service under Medicare or a state health care program.  The notice stated that the exclusion was effective 20 days from the date on the notice.  IG Ex. 1 at 1.

The exclusion notice stated that the IG increased the length of the exclusion from the mandatory minimum length of five years to ten years based on the following two aggravating factors:

• The acts resulting in the conviction, or similar acts, caused, or were intended to cause, a financial loss to a government agency or program or to one or more other

Page 2

entities of $50,000 or more.  The IG alleged that the District Court ordered Petitioner to pay approximately $144,600 in restitution.  See 42 C.F.R. § 1001.102(b)(1).

• The acts that resulted in the conviction, or similar acts, were committed over a period of one year or more.  The IG alleged that the acts that resulted in the conviction, or similar acts, occurred from about January 2016 to about January 2021.  See 42 C.F.R. § 1001.102(b)(2).

IG Ex. 1 at 1.

Petitioner filed a request for hearing on October 8, 2024, contesting the basis for the exclusion and the length of the exclusion.  On October 11, 2024, the Civil Remedies Division (CRD) acknowledged receipt of the hearing request, notified the parties of the date for a prehearing conference, and issued my Standing Order.

Petitioner requested that I reschedule the prehearing conference so that he could hire counsel.  I granted Petitioner's request as well as three additional requests to reschedule the prehearing conference.  On April 29, 2025, I held a prehearing conference, the substance of which is summarized in my April 29, 2025 Order Following Prehearing Conference and Setting Schedule for Prehearing Submissions.

Consistent with the prehearing submission schedule established at the prehearing conference, on June 3, 2025, the IG filed a prehearing exchange consisting of a brief (IG Br.) and five proposed exhibits (IG Exs. 1-5).1  On July 8, 2025, Petitioner filed a brief (P. Br.), a supplemental narrative statement (P. Supp. Br.), and four proposed exhibits (P. Exs. 2, 4-6).2  The IG filed a reply brief (IG Reply).

Page 3

II.  Issues

1. Whether the IG had a legitimate basis for excluding Petitioner from participation in all federal health care programs under 42 U.S.C. § 1320a-7(a)(1).
2. If the IG properly excluded Petitioner, whether the ten-year length of exclusion imposed by the IG is unreasonable.

III.  Admission of Evidence

I admit the parties' proposed exhibits into the record, without objection.3  See 42 C.F.R. § 1005.8(c); Standing Order ¶ 13.

IV.  Decision on the Written Record

Both the IG and Petitioner do not believe an in-person hearing is necessary to decide this case.  P. Br. at 3; IG Br. at 10.  Petitioner submitted written direct testimony from a witness (P. Ex. 5), but the IG did not request to cross-examine that witness.  Therefore, I render a decision based on the written record.  Standing Order ¶¶ 11-12, 16; EI Med., Inc., DAB No. 3117 at 15 (2023); Vandalia Park, DAB No. 1940 (2004); see 42 C.F.R. §§ 1005.6(b)(5), 1005.16(b).

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 April 6, 2023, the United States Attorney's Office for the Southern District of Illinois filed a one count Information with the District Court charging Petitioner with Health Care Fraud in violation of 18 U.S.C. § 1347.  IG Ex. 3.  Count 1 of the Information charged Petitioner with a scheme, that lasted from on or about January 1, 2016 to on or about January 5, 2021, to bill the Medicare and Medicaid programs for performing nail avulsion surgical procedures when Petitioner was only providing routine foot care services.  IG Ex. 3 at 3.
2. On April 6, 2023, Petitioner signed a Plea Agreement in which Petitioner agreed to plead guilty to Count 1 of the Information.  IG Ex. 5.

Page 4

3. On April 6, 2023, Petitioner signed a Stipulation of Facts that included the following admissions:
   1. Petitioner is a Doctor of Podiatric Medicine licensed to practice in Illinois.  IG Ex. 4 at 1.
   2. Petitioner was a participating provider in both the Medicare and Medicaid programs.  IG Ex. 4 at 2.
   3. The claims processes for the Medicare and Medicaid programs use Current Procedural Terminology (CPT) codes to identify the medical procedures provided to beneficiaries for which reimbursement is sought.  IG Ex. 4 at 2.
   4. A nail avulsion is a surgical procedure that typically requires the injection of local anesthetic into the toe and the removal of some or all of the nail from the toe.  Nail avulsion procedures are CPT codes 11730 and 11732.  IG Ex. 4 at 2.
   5. The treatment of a simple, uncomplicated or asymptomatic aberrant growing nail by removal of a nail spicule, not requiring local anesthesia, is routine foot care and that could not be billed using CPT code 11730 or 11732.  IG Ex. 4 at 3.
   6. "[Petitioner] knowingly and willfully submitted claims to Medicare and Medicaid for nail avulsions allegedly performed from January 1, 2016 to December 31, 2020, which claims certified that the nail avulsions were medically necessary and actually provided by [Petitioner] when in fact [Petitioner] knew he had not performed the claimed nail avulsions . . . .  Instead, on many occasions when [Petitioner] billed for nail avulsions[,] he provided only routine foot care services to the Medicare or Medicaid patients, such as trimming and clipping nails.  [Petitioner] did not use an injectable anesthetic to provide these services."  IG Ex. 4 at 3.
   7. "[Petitioner] acted with intent to defraud Medicare and Medicaid."  IG Ex. 4 at 3.
   8. Petitioner was not entitled to $144,694.69 of the money he received from the Medicare and Medicaid programs based on claims submitted under CPT codes 11730 and 11732.  Therefore, "[r]estitution is owed in this amount, with $115,931.35 going to Medicare and $28,763.34 going to Medicaid."  IG Ex. 4 at 3.

Page 5

4. On July 27, 2023, the District Court held a sentencing hearing in Petitioner's criminal case.  P. Ex. 6.  The District Court diverged from the sentencing guidelines, which suggested a period of incarceration, and only sentenced Petitioner to three years of probation.  P. Ex. 6 at 67, 70.  The District Court did not impose a fine because the District Court decided to order restitution to be paid to the Medicare and Medicaid programs, and Petitioner would not have the ability to pay the fine in addition to the restitution.  P. Ex. 6 at 71-72.  The District Court was lenient because:  the court did not think Petitioner was motivated by greed, and was probably just a disorganized and overwhelmed person; Petitioner was almost 70 years old with a medical condition; Petitioner had no criminal history or substance abuse issues; Petitioner provides for the basic needs of an adult child with severe mental health issues; Petitioner cared for his elderly father who had recently passed away at age 103; and Petitioner was shown to be a compassionate person, good father, community leader, and man of faith through the many character witnesses and letters submitted in the case.  P. Ex. 6 at 66-68.  The District Court did not think Petitioner had a desire to defraud the government.  P. Ex. 6 at 69.  The District Court noted that Petitioner practiced podiatry in his community for almost 40 years.  P. Ex. 6 at 69.
5. On July 28, 2023, the District Court entered a Judgment in a Criminal Case in which the court:  acknowledged that Petitioner pleaded guilty to Count 1 of the Information; stated that Petitioner "is adjudicated guilty of . . . Health Care Fraud" under 18 U.S.C. § 1347; sentenced Petitioner to three years of probation; and ordered Petitioner to pay restitution in the amount of $115,931.35 to the Centers for Medicare and Medicaid Services of the U.S. Department of Health and Human Services and $28,763.34 to the Illinois Department of Healthcare and Family Services.  IG Ex. 2 at 1-2, 5.

VII.  Conclusions of Law and Analysis

1. Petitioner was convicted of a criminal offense related to the delivery of a health care item or service under the Medicare and Medicaid programs; therefore, exclusion is required under 42 U.S.C. § 1320a‑7(a)(1).

The IG must exclude an individual from participation in all federal health care programs if that individual was convicted under federal or state law of a criminal offense related to

Page 6

the delivery of an item or service under Medicare or a state health care program.4  42 U.S.C. § 1320a‑7(a)(1).

Petitioner admitted that he was convicted of a criminal offense for which exclusion is required.  P. Br. at 1-2.  Further, my independent review of the record shows that Petitioner was convicted of a criminal offense because he pleaded guilty to a crime, the plea was accepted, and the District Court issued a judgment of conviction.  IG Exs. 2, 4-5; 42 U.S.C. § 1320a‑7(i)(1), (3).

In addition, Petitioner's criminal offense is related to the delivery of health care items or services under the Medicare and Medicaid programs.  For purposes of exclusion, the term "related to" simply means that there must be a nexus or common-sense connection.  See Quayum v. U.S. Dep't of Health & Hum. Servs., 34 F. Supp. 2d 141, 143 (E.D.N.Y. 1998); see also Baxter v. Kennedy, 136 F.4th 70, 86 (4th Cir. 2025) (holding that mandatory exclusion under section 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."); Friedman v. Sebelius, 686 F.3d 813, 820 (D.C. Cir. 2012) (describing the phrase "relating 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).

There is no doubt that a conviction involving false claims submitted to the Medicare or Medicaid programs is "related to" the delivery of an item or service under those programs.  See Travers v. Shalala, 20 F.3d 993, 998 (9th Cir. 1994) (conviction for filing false claims with the Medicaid program is "a program‑related offense" and "such financial misconduct is exactly what Congress sought to discourage" through imposing exclusions.); Kahn v. Inspector Gen. of the U.S. Dep't of Health & Hum. Servs., 848 F. Supp. 432, 434, 436 (S.D.N.Y. 1994) (concluding that a podiatrist's conviction for attempted grand larceny was program-related for purposes of an exclusion because it was related to the filing of false Medicaid claims); Greene v. Sullivan, 731 F. Supp. 835, 838 (E.D. Tenn. 1990) ("There is no question that Mr. Greene's crime [of filing false claims] resulted in a Medicaid overpayment and was a program-related crime triggering the mandatory exclusion under Section 1320a‑7(a).").  In addition, as discussed in Findings of Fact numbers 3(h) and 5, Petitioner's admission that he needed to pay restitution to the

Page 7

Medicare and Medicaid programs, which was approved and ordered by the District Court, shows that Petitioner's criminal offense was related to the delivery of a healthcare item or service under the Medicare and Medicaid programs.  Summit S. Shah, M.D., DAB No. 2836 at 8-10 (2017).

Because Petitioner was convicted of a criminal offense related to the delivery of healthcare items or services under the Medicare and Medicaid programs, Petitioner is subject to a mandatory exclusion under 42 U.S.C. § 1320a‑7(a)(1).

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

Because I have concluded that a basis exists to exclude Petitioner under 42 U.S.C. § 1320a‑7(a)(1), Petitioner must be excluded for a minimum of five years.  42 U.S.C. § 1320a‑7(c)(3)(B).

3. The IG has proven that two aggravating factors exist in this case to extend the length of exclusion beyond the minimum five-year requirement.

Although individuals excluded under 42 U.S.C. § 1320a‑7(a)(1) 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.  Further, Petitioner does not dispute that the aggravating factors identified by the IG exist in this case.  P. Br. at 2.

1. Petitioner admitted that he caused $144,694.69 in loss to the Medicare and Medicaid programs, and the District Court ordered that Petitioner pay restitution in that amount to the Medicare and Medicaid  programs.

The IG provided evidence that demonstrates the acts resulting in Petitioner's criminal conviction caused, or were intended to cause, a financial loss to a government program of $50,000 or more.  42 C.F.R. § 1001.102(b)(1).  Specifically, as stated in Finding of Fact number 3(h), Petitioner was not entitled to $144,694.69 of the money he received from the Medicare and Medicaid programs based on claims submitted under CPT codes 11730 and 11732.  Petitioner agreed that restitution of $115,931.35 was owed to the Medicare program and $28,763.34 was owed to the Illinois Medicaid program.  IG Ex. 4 at 3.  The District Court ordered restitution in the amount of $144,694.69, with $115,931.35 for Medicare and $28,763.34 for Illinois Medicaid.  IG Ex. 2 at 5; P. Ex. 6 at 6, 8, 72.

Petitioner asserts that the Medicare and Medicaid program loss amounts agreed to during the guilty plea are arbitrary because Petitioner's lawyer did not have the time to devote to

Page 8

his criminal case.  P. Supp. Br.  However, it is well‑established that an amount ordered as restitution constitutes proof of the amount of financial loss to a government program.  See, e.g., Juan de Leon, Jr., DAB No. 2533 at 5 (2013); Jason Hollady, M.D., DAB No. 1855 (2002).  Therefore, I must accept the evidence in the record, i.e., the Stipulation of Facts by the parties and the restitution ordered by the court, as proof that this aggravating factor exists.

2. Petitioner's acts that resulted in conviction, or similar acts, were committed for more than one year, i.e., from approximately January 2016 to in or around January 2021.

The IG provided evidence that demonstrates the acts that resulted in the conviction, or similar acts, were committed for one year or more.  42 C.F.R. § 1001.102(b)(2).  Specifically, Petitioner stipulated that he "knowingly and willfully submitted claims to Medicare and Medicaid for nail avulsions allegedly performed from January 1, 2016 to December 31, 2020 . . . ."  IG Ex. 4 at 3.  The District Court found that Petitioner's criminal offense ended on January 5, 2021, which is within a few days of the stipulated end date.  IG Ex. 2 at 1.  Therefore, I conclude that the IG proved this aggravating factor.

4. Petitioner did not prove the existence of any mitigating factors that would justify a reduction in the length of exclusion imposed by the IG.

If there are aggravating factors that justify the length of exclusion to exceed five years, then the length of exclusion can be reduced if certain mitigating factors are present in a case.  42 C.F.R. § 1001.102(c).  Petitioner alleged a variety of matters in mitigation; however, I could discern only one that might be cognizable under the regulations.  The regulations provide that the following is a mitigating factor:

The record in the criminal proceedings, including sentencing documents, demonstrates that the court determined that the individual had a mental, emotional or physical condition before or during the commission of the offense that reduced the individual's culpability.

42 C.F.R. § 1001.102(c)(2).

Petitioner states that caring for his adult son with mental illness has had a significant impact on his practice and life.  P. Br. at 4; P. Supp. Br.  Petitioner's sister testified at the sentencing hearing that Petitioner's son will only communicate with Petitioner and no one else in the family, so his son's care falls entirely on Petitioner.  P. Ex. 6 at 48-50.  Petitioner asserts that he has been affected emotionally due to the fact that his son's mental illness was not effectively controlled for years.  P. Br. at 4.

Page 9

Under 42 C.F.R. § 1001.102(c)(2), the relevant inquiry is whether Petitioner has proven that the District Court determined that Petitioner had a mental or emotional condition that reduced Petitioner's criminal culpability.  Patel v. Shalala, 17 F. Supp. 2d 662, 667 (W.D. Ky. 1998) ("Plaintiff has not provided any citation to the record in the criminal proceeding where the court made any finding that plaintiff was less culpable for his crimes due to a dependence on alcohol or drugs.").  While the District Court considered Petitioner's care for his son as a basis for diverging from sentencing guidelines to sentence Petitioner to probation instead of incarceration, the District Court did not find that Petitioner had a mental or emotional condition that reduced his culpability.  P. Ex. 6 at 66-68.  Reviewing the record, the District Court thought Petitioner was not very culpable of the criminal conduct in this case, but I cannot find an express or implied statement from the District Court that this was due to a mental or emotional condition.  See Farzana Begum, M.D., DAB No. 2726 at 9-10 (2016).  Therefore, I conclude that Petitioner failed to prove that the mitigating factor at 42 C.F.R. § 1001.102(c)(2) applies in this case.

Petitioner submitted character reference letters and character testimony from the sentencing hearing.  P. Ex. 4; P. Ex. 6 at 15-51.  I cannot consider those documents to mitigate the length of exclusion because the regulations do not permit me to consider them.  Baldwin Ihenacho, DAB No. 2667 at 8 (2015).

Petitioner also submits evidence and argument to show that he did not actually commit the crime that he pleaded guilty to committing.  Petitioner states that his defense attorney persuaded Petitioner to plead guilty due to the cost of his legal defense, problems with his medical records, and the unpredictable nature of elderly patients testifying under cross-examination at trial.  Petitioner states that he could not plead guilty during the first court hearing scheduled for that purpose because he did not believe that he had done anything wrong.  P. Supp. Br.

Petitioner states that he came to realize he had billed using the wrong CPT codes.  Petitioner asserts that he ordered special instruments to remove ingrown toenails without an injected anesthetic because Petitioner found that his patients did not like those injections.  Petitioner states:  "After it was explained to me that the codes that I used were not correct I consented to plead guilty but I didn't knowingly and willfully use my practice to cheat the government.  I was not just clipping nails.  These people needed my help because they were hurting."  P. Supp. Br.; P. Ex. 2.

At the sentencing hearing, a podiatrist testified that there are two ways of performing a nail avulsion.  The most common way is to use an anesthetic when removing part of the nail.  However, the older method, which would be the method taught to Petitioner based on his age, would be to remove the nail without anesthesia.  P. Ex. 6 at 17-18; see P. Ex. 2.

Page 10

Petitioner also submitted written direct testimony from one of his patients who was mentioned as part of the charges in the Information.  The Information alleged that Petitioner billed Medicare for multiple nail avulsions allegedly performed on the patient on December 21, 2020, even though no services were provided.  IG Ex. 3 at 3-4.  The patient testified in this proceeding that Petitioner performed a procedure on the patient on December 21, 2020.  P. Ex. 5.  Petitioner argues that his attorney never addressed this allegation in the Information and that the patient's testimony disputes the allegation that Petitioner was billing the government without providing services to his patients in a scheme to make a lot of money.  P. Br. at 4, 6.

I cannot consider any of these arguments that Petitioner was actually innocent of the crime that he pleaded guilty to committing.  These are impermissible collateral attacks on the judgment of conviction.  42 C.F.R. § 1001.2007(d).  Therefore, they cannot mitigate the length of exclusion.

5. The IG's determination to impose a ten-year exclusion is not unreasonable.

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."  Begum, M.D., DAB No. 2726 at 2.  Further, the general purpose of an exclusion under 42 U.S.C. § 1320a-7 is "to protect federal health care programs and the programs' beneficiaries and recipients from untrustworthy providers."  Susan Malady, R.N., DAB No. 1816 at 9 (2002).  Ultimately, I must decide whether the ten-year length of exclusion is unreasonable (i.e., is it within a reasonable range for the length of exclusion based on the relevant factors).  42 C.F.R. § 1001.2007(a)(1)(ii); 57 Fed. Reg. 3298, 3321 (Jan. 29, 1992).

As stated above, based on the facts that Petitioner stipulated to while pleading guilty and the District Court's judgment of conviction, Petitioner had two aggravating factors.  Petitioner caused loss to the Medicare and Medicaid programs that was nearly three times the minimum amount of money for such a loss to be considered aggravating.  Further, Petitioner's criminal conduct lasted for five years, or five times as long as necessary for that to be considered an aggravating factor.

Petitioner requests that the length of exclusion be reduced to the minimum five years.  P. Supp. Br.  I have limited authority to reduce the length of exclusion, and the IG has shown two significant aggravating factors in this case.  Further, Petitioner admitted to committing health care fraud on the Medicare and Medicaid programs.  While at the high end, a ten-year exclusion in this case is within the reasonable range for the length of the exclusion in this case.  I have no authority to disregard those aggravating factors and reduce the length of exclusion to the minimum length of five years.

Page 11

Despite the reasonableness of the length of exclusion, I recommend that the IG consider reevaluating the length of exclusion in this case based on the transcript of the sentencing hearing.  As summarized in Finding of Fact number 4, the District Court's assessment of Petitioner indicated that Petitioner did not intend to commit fraud and that his billing with improper CPT codes likely resulted from other factors unrelated to intentional fraud.  In essence, the District Court did not assess Petitioner as untrustworthy but found him to be a dedicated health care professional and community leader who was spread too thin and fell into mistakes.

There is no doubt that Petitioner must be excluded for five years.  He was convicted of health care fraud involving the Medicare and Medicaid programs.  However, the decision to lengthen the exclusion (or not) is within the discretion of the IG.

VIII.  Conclusion

For the foregoing reasons, I affirm the IG's determination to exclude Petitioner for ten years from participating in all federal health care programs under 42 U.S.C. § 1320a‑7(a)(1).