Lonnie Joseph Parker, MD, DAB CR6783 (2026)

DECISION

Petitioner, Lonnie Joseph Parker, MD, is excluded from participation in Medicare, Medicaid, and all federal health care programs pursuant to section 1128(a)(4) of the Social Security Act (Act) (42 U.S.C. § 1320a-7(a)(4)), effective April 20, 2025.  Petitioner’s exclusion for the minimum period of five years is required by section 1128(c)(3)(B) of the Act (42 U.S.C. § 1320a‑7(c)(3)(B)).  An additional exclusion of 10 years, for a total minimum exclusion of 15 years,1 is not unreasonable based upon the presence of two aggravating factors and no mitigating factor. 

Page 2

I. Background

The Inspector General of the U.S. Department of Health and Human Services (IG) notified Petitioner by letter dated March 31, 2025, that he was excluded from participation in Medicare, Medicaid, and all federal health care programs.  The IG cited section 1128(a)(4) of the Act as the basis for Petitioner’s exclusion based on his conviction, in the United States District Court, Western District of Arkansas (district court), of a criminal offense related to the unlawful manufacture, distribution, prescription, or dispensing of a controlled substance.  The IG’s notice further advised Petitioner that the mandatory five-year exclusion was extended to 15 years because of the existence of two aggravating factors:  (1) Petitioner was sentenced to 87 months incarceration; and (2) Petitioner was the subject of another adverse action by a federal, state or local government agency or board based on the same set of circumstances as were the basis for Petitioner’s conviction, specifically his license to practice medicine was suspended by the Arkansas State Medical Board (ASMB).  IG Exhibit (Ex.) 1 at 1. 

Petitioner timely filed a request for hearing (RFH) by letter dated April 8, 2025, that was postmarked April 11, 2025.  This case was docketed and assigned to me on April 24, 2025.  A prehearing conference was convened on June 10, 2025.  The substance of the conference is memorialized in my Prehearing Conference Order and Schedule for Filing Briefs and Documentary Evidence dated June 12, 2025 (Prehearing Order).  

The IG filed a motion for summary judgment and supporting brief on July 21, 2025, with IG Exs. 1 through 6.  Petitioner filed a response in opposition to the IG’s motion for summary judgment (P. Br.) on September 15, 2025, with five attachments that are treated as Petitioner’s exhibits (P. Exs.) 1 through 5.  The IG filed a reply brief (IG Reply) on September 30, 2025, with IG Ex. 7.2  No objections were made to my consideration of the offered exhibits, and IG Exs. 1 through 7 and P. Exs. 1 through 5 are admitted and considered as evidence.  Petitioner, in executing his response in opposition, attested under penalty of perjury that his statements and assertions of fact are true and correct.  Departmental Appeals Board Electronic Filing System (DAB E-File) # 6 at 15 (document page counter).  Therefore, I treat Petitioner’s statements in his response in opposition like 

Page 3

it is a declaration under 28 U.S.C. § 1746, and testimony for purposes of ruling on summary judgment. 

II. Discussion

1. A. Applicable Law

Section 1128(f) of the Act (42 U.S.C. § 1320a-7(f)) establishes Petitioner’s right to a hearing by an administrative law judge (ALJ) and judicial review of the final action of the Secretary of Health and Human Services (the Secretary). 

Pursuant to section 1128(a)(4) of the Act, the Secretary must exclude from participation in any federal health care program any individual convicted of a felony criminal offense under federal or state law, that occurred after August 21, 1996, related to the unlawful manufacture, distribution, prescription, or dispensing of a controlled substance.  Act § 1128(a)(4).  The Secretary has promulgated regulations implementing this provision of the Act.  42 C.F.R. § 1001.101(d). 

Pursuant to section 1128(i) of the Act (42 U.S.C. § 1320a-7(i)), an individual is 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 no contest is accepted by a court; or (4) the individual has entered into any arrangement or program where judgment of conviction is withheld. 

Section 1128(c)(3)(B) of the Act provides that an exclusion imposed under section 1128(a) of the Act will be for a period of no fewer than five years.  42 C.F.R. § 1001.102(a).  The Secretary has published regulations that establish aggravating factors that the IG may consider as a basis to extend the period of exclusion beyond the minimum five-year period, as well as mitigating factors that may be considered only if the minimum five‑year period is extended.  42 C.F.R. § 1001.102(b), (c). 

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, and the IG bears the burden on all other issues.  42 C.F.R. § 1005.15(c); Prehearing Order ⁋ 4.  There may be no collateral attack of the conviction that is the basis for the exclusion.  42 C.F.R. § 1001.2007(d). 

1. B. Issues

The issues in this case are: 

Page 4

• Whether there is a basis for exclusion; and
• Whether the length of exclusion is unreasonable.   

42 C.F.R. § 1001.2007(a)(1). 

1. C. Findings of Fact, Conclusions of Law, and Analysis

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

1. 1. Petitioner’s request for hearing was timely, and I have jurisdiction to hear and decide this case.

There is no dispute that Petitioner’s request for hearing was timely, and I have jurisdiction pursuant to section 1128(f) of the Act and 42 C.F.R. pt. 1005. 

1. 2. Summary judgment is appropriate.

Pursuant to section 1128(f) of the Act, a person subject to exclusion has a right to reasonable notice and an opportunity for a hearing.  The Secretary has provided by regulation that a sanctioned party has the right to a hearing before an ALJ and both the sanctioned party and the IG have a right to participate in the hearing.  42 C.F.R. §§ 1005.2-.3.  Either or both parties may choose to waive appearance at an oral hearing and to submit only documentary evidence and written argument for my consideration.  42 C.F.R. § 1005.6(b)(5).  

An ALJ may also resolve a case, in whole or in part, by summary judgment.  42 C.F.R. § 1005.4(b)(12).  Summary judgment is appropriate, and no hearing is required, where either:  there are no genuine disputes of material fact and the only questions that must be decided involve application of law to the undisputed facts; or the moving party prevails as a matter of law even if all disputed facts are resolved in favor of the party against whom the motion is made.  A party opposing summary judgment must allege facts which, if true, would refute the facts relied upon by the moving party.  See, e.g., Fed. R. Civ. P. 56(c); Garden City Med. Clinic, DAB No. 1763 (2001); Everett Rehab. & Med. Ctr., DAB No. 1628 at 3 (1997) (holding in-person hearing is required where the non-movant shows there are material facts in dispute that require testimony); Thelma Walley, DAB No. 1367 (1992).  The nonmovant may not rely upon mere allegations or denials to defeat a properly supported motion for summary judgment.  To defeat a properly supported motion for summary judgment and proceed to a trial, the nonmovant must show there is a genuine dispute as to a material fact that requires determination by the fact finder.  On summary judgment, the judge does not weigh the evidence or attempt to determine the truth.  Rather, the judge accepts the nonmovant’s evidence as true and draws all 

Page 5

permissible inferences in the nonmovant’s favor.  Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-57 (1986). 

The IG moved for summary judgment.  Petitioner does not dispute that he was convicted of a felony offense that meets the elements for a mandatory exclusion pursuant to section 1128(a)(4) of the Act.  P. Br. at 10 (document page counter).  Petitioner’s arguments opposing summary judgment, including among others, that his conviction is on appeal, the state medical board action was improperly considered as an aggravating factor, and there exists a mitigating factor not considered by the IG, must all be resolved against Petitioner as matters of law.  P. Br. at 4, 12-13, 14 (document page counter).  There are no genuine disputes of material fact in this case, and the case can be resolved by applying the law to the undisputed facts.  Accordingly, summary judgment is appropriate. 

1. 3. There is a basis for Petitioner’s exclusion pursuant to section 1128(a)(4) of the Act.
   1. a.Undisputed Facts

On June 15, 2022, a second superseding indictment was filed in the district court charging Petitioner, a licensed medical practitioner, with five counts of unlawfully dispensing and distributing Schedule II and V controlled substances to individuals on August 1, August 29, and November 17, 2018, and January 4 and 7, 2019, outside the course of professional practice and without medical purpose.  Each count alleged violations of 21 U.S.C. § 841(a) and (b).  IG Ex. 3.  

On October 28, 2022, a jury in the district court found Petitioner guilty of four of the five counts and not guilty of one count.  IG Ex. 4. 

On August 26, 2024, the district court entered judgment based on the jury verdict.  Petitioner was sentenced to 87 months in prison followed by three years of supervision.  IG Ex. 2 at 1-3. 

On November 4, 2022, the ASMB issued an emergency order of suspension and notice of hearing charging Petitioner with violations of Arkansas law.  The charges were based on Petitioner’s district court conviction of two counts of distributing Schedule II controlled substances and two counts of distributing Schedule V controlled substances without effective prescriptions.  Based on his conviction, the ASMB finds that Petitioner’s acts for which he was convicted reflected an ongoing danger to the public through his practice of medicine.  Therefore, the ASMB suspended Petitioner’s license to practice medicine pending a disciplinary hearing or further orders of the ASMB.  IG Ex. 5; IG Ex. 6 at 3. 

Page 6

On March 31, 2025, the IG notified Petitioner that he was excluded from participation in Medicare, Medicaid, and all federal health care programs pursuant to section 1128(a)(4) of the Act for 15 years.  IG Ex. 1 at 1. 

1. b. Analysis

Section 1128(a)(4) of the Act requires that the Secretary exclude from participation in Medicare, Medicaid, and all federal health care programs any individual or entity: 

• (1) convicted of a felony criminal offense under federal or state law;
• (2) where the offense occurred after August 21, 1996 (the date of enactment of the Health Insurance Portability and Accountability Act of 1996); and
• (3) the criminal offense is related to the unlawful manufacture, distribution, prescription, or dispensing of a controlled substance.   

42 U.S.C. § 1320a-7(a)(4); 42 C.F.R. § 1001.101(d). 

Petitioner does not dispute that on October 28, 2022, a district court jury found him guilty of four counts of unlawfully dispensing or distributing Schedule II and V controlled substances to individuals on August 1, August 29, and November 17, 2018 and January 4 and 7, 2019, without valid prescriptions, outside the course of professional practice and without medical purpose, in violation of 21 U.S.C. § 841(a) and (b).  IG Exs. 3, 4.  Petitioner does not deny that on August 26, 2024, the district court entered judgment based on the jury verdict and sentenced Petitioner to 87 months in prison.  IG Ex. 2 at 1-3. 

Petitioner does not dispute that the offenses of which he was convicted all occurred after August 21, 1996. 

Petitioner does not dispute that the offenses of which he was convicted were related to the unlawful distribution or dispensing of federally controlled substances.  

Petitioner does not dispute that his sentence to 87 months in prison based on his conviction of four counts of violations of 21 U.S.C. § 841(a) and (b) establishes that he was convicted of a felony within the meaning of 18 U.S.C. § 3559(a).  P. Br. at 7 (document page counter) ¶¶ 17-21; IG Ex. 2 at 2; 21 U.S.C. § 841(b)(1)(C). 

Petitioner appears to concede that there is a basis for his exclusion pursuant to 1128(a)(4) of the Act.  P. Br. at 10 (document page counter).  But he also argues that his conviction is not final because his conviction is subject to appeal.  P. Br. at 4, 8 (document page counter).  Mandatory exclusion under section 1128(a)(4) of the Act is triggered by the 

Page 7

conviction of a felony offense that occurred after August 21, 1996, related to the unlawful manufacture, distribution, prescription, or dispensing of a controlled substance.  Act § 1128(a)(4).  For purposes of exclusion under 1128(a), a conviction occurs:  

• (1) when a judgment of conviction has been entered against the individual or entity by a Federal, State, or local court,(1) 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;
• (2) when there has been a finding of guilt against the individual or entity by a Federal, State, or local court;
• (3) when a plea of guilty or nolo contendere by the individual or entity has been accepted by a Federal, State, or local court; or
• (4) when the individual or entity has entered into participation in a first offender, deferred adjudication, or other arrangement or program where judgment of conviction has been withheld.   

Act § 1128(i).  Petitioner was convicted by the district court on August 26, 2024, when judgment was entered.  IG Ex. 2.  Petitioner’s subsequent appeals of his conviction are irrelevant in this proceeding.  Therefore, Petitioner’s suggestion that he may not be subject to mandatory exclusion pursuant to section 1128(a)(4) due to a pending appeal is without merit.3 

I conclude that the elements that trigger mandatory exclusion pursuant to section 1128(a)(4) of the Act are present.  There is a basis for mandatory exclusion, and Petitioner’s mandatory exclusion is required. 

1. 4. Pursuant to section 1128(c)(3)(B) of the Act, exclusion for five years is mandatory.

Page 8

I have concluded that a basis exists to exclude Petitioner pursuant to section 1128(a)(4) of the Act.  Therefore, Congress requires that the IG exclude Petitioner for a minimum period of five years.  Act § 1128(c)(3)(B).  The IG has no discretion to impose a lesser period of exclusion, and I may not reduce the period of exclusion below five years. 

1. 5. Two aggravating factors are present in this case that justify extending the minimum period of exclusion.

The remaining issue is whether it is unreasonable to extend Petitioner’s exclusion by an additional ten years, for a total period of exclusion of 15 years.  My determination of whether the exclusionary period in this case is unreasonable turns on whether:  (1) the IG has proven that there are aggravating factors; (2) Petitioner has proven that the IG considered an aggravating factor that does not exist or that there is a mitigating factor that the IG failed to consider; and (3) the period of exclusion is within a reasonable range. 

The IG notified Petitioner that two aggravating factors are present in this case that justify an exclusion of more than five years: 

• (1) The sentence imposed by the court included incarceration; and
• (2) Petitioner was subject to an adverse action by a federal, state, or local government agency or board, and the adverse action was based on the same set of circumstances that served as the basis for the imposition of the exclusion.   

IG Ex. 1 at 1.  The IG considered no mitigating factor.  IG Ex. 1. 

Petitioner argues the 15-year exclusion is unreasonable because he was convicted for the way he cared for his legitimate patients; the state medical board temporarily suspended his license and has not taken final agency action until a formal hearing is held; and the IG failed to consider a mitigating factor.  P. Br. at 3-8, 10-14 (document page counter). 

I conclude based on de novo review that the aggravating factors cited by the IG exist in this case.  I further conclude that Petitioner’s arguments are without merit and must be rejected. 

1. a. Petitioner was sentenced to be incarcerated. 42 C.F.R. § 1001.102(b)(5). 

A period of incarceration of any duration may be considered by the IG as an aggravating factor justifying extending the period of exclusion beyond the five-year minimum.  See Jason Hollady, M.D., DAB No. 1855 at 9 (2002) (holding that a prison sentence of 

Page 9

as little as nine months is “relatively substantial” for exclusion purposes.).  The IG considered the aggravating factor authorized by 42 C.F.R. § 1001.102(b)(5) that Petitioner’s sentence included incarceration.  Petitioner does not dispute that the district court sentenced him to 87 months of incarceration.  RFH; P. Br.  I conclude that the aggravating factor of incarceration is established by the evidence before me and is undisputed. 

How the IG weighed any aggravating factor is not subject to my review in this case for reasons discussed hereafter. 

1. b. Petitioner was subject to an adverse action by a federal, state, or local government agency or board, and the adverse action was based on the same set of circumstances that served as the basis for the imposition of the exclusion. 42 C.F.R. § 1001.102(b)(9). 

The IG considered the aggravating factor authorized by 42 C.F.R. § 1001.102(b)(9) that Petitioner was subject to an adverse action by a federal, state, or local government agency or board, and the adverse action was based on the same set of circumstances that served as the basis for imposition of the IG’s exclusion. 

Petitioner does not dispute that on November 4, 2022, the ASMB issued an emergency order of suspension and notice of hearing charging Petitioner with violations of Arkansas law.  RFH; P. Br. at 4 (document page counter).  Petitioner does not dispute that the ASMB charges are based on Petitioner’s district court conviction of two counts of distributing Schedule II controlled substances and two counts of distributing Schedule V controlled substances without effective prescriptions.  Based on his conviction, the ASMB found that Petitioner’s acts for which he was convicted reflected an ongoing danger to the public through his practice of medicine.  Therefore, the ASMB suspended Petitioner’s license to practice medicine pending a disciplinary hearing or further orders of the ASMB.  IG Ex. 5; IG Ex. 6 at 3. 

Petitioner argues that the ASMB’s action is not final as it is a temporary suspension until such time as a formal hearing can be held.  P. Br. at 4-8.  Petitioner is correct that the ASMB imposed emergency suspension of his medical license pending a disciplinary hearing.  The ASMB states the emergency suspension was required because Petitioner posed an ongoing danger to the public through his continued practice of medicine.  IG Ex. 5 at 2. 

The aggravating factor established by 42 C.F.R. § 1001.102(b)(9) is: 

• The individual or entity has been the subject of any other adverse action by any Federal, State or local government  

Page 10

• agency or board if the adverse action is based on the same set of circumstances that serves as the basis for the imposition of the exclusion.   

The plain language of 42 C.F.R. § 1001.102(b)(9) does not require that the action of an agency or board be a final adverse action, contrary to the argument of Petitioner.  All that is required is that the adverse action be based on the same circumstances as are the basis for the exclusion.  In Petitioner’s case, he was convicted, and the conviction was the basis for the ASMB’s action.  IG Ex. 5 at 1-2.  Petitioner does not deny that suspension of his license was an adverse action. 

Accordingly, I conclude that the aggravating factor under 42 C.F.R. § 1001.102(b)(9) is established and may be considered.  How the IG weighed any aggravating factor is not subject to my review in this case for reasons discussed hereafter. 

1. c. Petitioner may not attack his federal conviction or the suspension of his medical license in this forum.

Pursuant to 42 C.F.R. § 1001.2007(d): 

• When the exclusion is based on the existence of a criminal conviction or a civil judgment imposing liability by Federal, State or local court, a determination by another Government agency, or any other prior determination where the facts were adjudicated and a final decision was made, the basis for the underlying conviction, civil judgment or determination is not reviewable and the individual or entity may not collaterally attack it either on substantive or procedural grounds in this appeal. 

Petitioner was convicted by the district court.  Petitioner asserts, and I accept as true for purposes of summary judgment, that his criminal conviction is pending appellate review.  Petitioner raised various arguments regarding his conviction that appear to be unpermitted collateral attacks of the conviction that I may not consider.  P. Br.; RFH. 

Petitioner also advances arguments about the ASMB’s emergency suspension of his medical license.  Although not specially covered by 42 C.F.R. § 1001.2007(d) because I accept that the agency action is arguably not final, I conclude that I have no authority to review the action of the ASMB under the Act or 42 C.F.R. pt. 1005.  Even though Petitioner’s assertions of procedural or substantive error by the ASMB may be accepted as true for purposes of summary judgment (P. Br. at 12-13 (document page counter); P. Ex. 2-3 (P. Br. at 22-39 (document page counter)), Petitioner’s assertions are simply 

Page 11

irrelevant as the ASMB’s emergency suspension, which is not disputed, is not subject to my review. 

1. 6. Petitioner has not shown that there is any genuine dispute of material fact as to the existence of a mitigating factor that could be proved by a preponderance of the evidence.

If any of the aggravating factors authorized by 42 C.F.R. § 1001.102(b) justify an exclusion of longer than five years, then mitigating factors may be considered as a basis for reducing the period of exclusion to no fewer than five years.  42 C.F.R. § 1001.102(c).  The only authorized mitigating factors that I may consider are established by 42 C.F.R. § 1001.102(c):  

• (1)  In the case of an exclusion under § 1001.101(a), whether the individual or entity was convicted of three or fewer misdemeanor offenses, and the entire amount of financial loss (both actual loss and intended loss) to Medicare or any other Federal, State or local governmental health care program due to the acts that resulted in the conviction, and similar acts, is less than $5,000;
• (2)  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; or
• (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.   

Petitioner has the burden to prove by a preponderance of the evidence that there is a mitigating factor for me to consider.  42 C.F.R. § 1005.15(b)(1). 

Page 12

Petitioner does not argue that either of the first two mitigating factors apply.  But Petitioner argues that he cooperated with federal or state officials in a manner that triggered the mitigating factor established by 42 C.F.R. § 1001.102(c)(3).  RFH; P. Br.; P. Ex. 4-5 (P. Br. at 41-50 (document page counter)).  

I accept as true for purposes of summary judgment Petitioner’s allegations that in June 19, 2017 and November 29, 2017, Petitioner was notified that SM made copies of a prescription for oxycodone that he received from Petitioner.  SM used the copies to obtain approximately 700 pills from various pharmacies.  Petitioner notified law enforcement, and SM was arrested, prosecuted, convicted, and imprisoned.  P. Br. at 8 (document page counter) ¶¶ 33-35. 

Petitioner concedes that the second superseding indictment in this case was not issued until June 15, 2022, and alleged five offenses occurring in August and November 2018 and January 2019.  IG Ex. 3; P. Br. at 7 (document page counter) ¶ 17.  Petitioner alleges no connection between his offenses in 2018 and 2019 and SM’s offenses in 2017.  Petitioner also does not allege that SM’s offenses related to Medicare or Medicaid fraud or waste, fraud, or abuse in the Medicare or Medicaid program. 

The Secretary promulgated 42 C.F.R. § 1001.102(c)(3) by rulemaking in 1998.  63 Fed. Reg. 46,676 (Sep. 2, 1998).  The drafters stated in the preamble to the new rule that its purpose was: 

• To encourage greater cooperation by individuals and entities, and to afford the OIG greater flexibility in identifying and addressing issues related to program fraud and abuse, we proposed adding a new mitigating factor applicable to the authorities in 42 CFR part 1001 that would take into account whether the cooperation of an individual or entity resulted in additional cases being investigated or reports issued by the appropriate law enforcement agency identifying program vulnerabilities or weaknesses. 

63 Fed. Reg. at 46,677.  The drafters also stated: 

• While we expect this mitigating factor to be taken into consideration only in those situations where the law enforcement agency validated the person's information by opening up a case investigation or by issuing a report, we nevertheless believe that this additional factor will afford the OIG greater flexibility in identifying and addressing issues related to program waste, fraud and abuse. 

Page 13

63 Fed. Reg. at 46,681. 

I accept as true that Petitioner cooperated with state officials to secure the conviction and imprisonment of SM.  However, because SM’s offenses reported by Petitioner to state authorities are unrelated to Medicare or Medicaid waste, fraud, and abuse, I conclude that the mitigating factor under 42 C.F.R. § 1001.102(c)(3) does not exist in this case as a matter of law. 

Petitioner also asserts that the facts underlying his criminal charges were unlike most because they involved his treatment decisions for the individuals named in the charges.  P. Br. at 3, 10-11 (document page counter).  While I accept his assertion as true for purposes of summary judgment, the consideration of the facts underlying Petitioner’s criminal charges are not subject to consideration in this case as an aggravating factor under 42 C.F.R. § 1001.102(b) or a mitigating factor under 42 C.F.R. § 1001.102(c).  The IG cited only two aggravating factors under 42 C.F.R. § 1001.102(b)(5) and (9) and no factor such as that established by 42 C.F.R. § 1001.102(b)(3) for example that would permit consideration of the impact of Petitioner’s criminal conduct upon program beneficiaries or others.  If Petitioner’s argument is that the IG failed to properly weigh the underlying facts of Petitioner’s criminal conduct, for reasons explained hereafter, my review does not extend to how the IG weighed the evidence. 

1. 7. Exclusion for 15 years is not unreasonable in this case.

Petitioner argues that the 15-year exclusion is unreasonable.  Petitioner’s arguments are that the IG did not correctly weigh the aggravating factors and the IG failed to consider a mitigating factor.  RFH; P. Br.  Petitioner’s arguments are without merit.  Based on Board decisions discussed hereafter, my limited authority to reassess the reasonable period of exclusion is not triggered in this case.  I have no authority to review how the IG weighed aggravating factors.  I conclude that the IG did not fail to consider a mitigating factor.  I also have no authority to find invalid or to refuse to follow a federal statute or regulation.  42 C.F.R. § 1005.4(c)(1). 

According to the regulations, an ALJ must determine whether the length of exclusion imposed is “unreasonable.”  42 C.F.R. § 1001.2007(a)(1)(ii).  The Board, however, has made clear that the role of the ALJ in exclusion cases is to conduct a de novo review of the facts related to the basis for the exclusion and the existence of aggravating and mitigating factors identified at 42 C.F.R. § 1001.102 and to determine whether the period of exclusion imposed by the IG falls within a reasonable range.  Juan de Leon, Jr., DAB No. 2533 at 2-3 (2013); Craig Richard Wilder, DAB No. 2416 at 8 (2011); Joann Fletcher Cash, DAB No. 1725 at 17 n.6 (2000).  The Board explained that, in determining whether a period of exclusion is “unreasonable,” the ALJ is to consider whether such period falls “within a reasonable range.”  Cash, DAB No. 1725 at 17 n.6. 

Page 14

Pursuant to 42 C.F.R. § 1005.20(b), an ALJ is authorized to affirm, increase, or reduce the period of exclusion imposed by the IG.  However, the Board cautions that whether the ALJ thinks the period of exclusion is too long or too short is not the issue.  The ALJ may not substitute his or her judgment for that of the IG and may only change the period of exclusion in limited circumstances.  In John (Juan) Urquijo, DAB No. 1735 (2000), the Board made clear that, if the IG considers an aggravating factor to extend the period of exclusion and that factor is not later shown to exist on appeal, or if the IG fails to consider a mitigating factor that is shown to exist, then the ALJ may make a decision as to the appropriate extension of the period of exclusion beyond the minimum.  In Gary Alan Katz, R.Ph., DAB No. 1842 (2002), the Board suggested that when it is found that an aggravating factor considered by the IG is not proved before the ALJ, then some downward adjustment of the period of exclusion should be expected absent some circumstances that indicate no such adjustment is appropriate.  

The Board has by its decisions narrowly defined my authority under the applicable regulation to judge the reasonableness of the period of exclusion. 

Based on my de novo review, I conclude that exclusion pursuant to section 1128(a)(4) of the Act is required.  The undisputed evidence establishes the two aggravating factors that the IG relied on to impose the 15-year exclusion.  Petitioner has shown no genuine dispute of material fact or presented evidence that triggers an inference in his favor that the IG considered an aggravating factor that did not exist or that the IG failed to consider any mitigating factor authorized by 42 C.F.R. § 1001.102(c).  Accordingly, I have no authority to reassess the period of exclusion imposed in this case.  Furthermore, a period of exclusion of 15 years is in, my opinion, within a reasonable range and not unreasonable considering the existence of two aggravating factors and no mitigating factor.  Accordingly, I conclude that no change in the period of exclusion is permissible or appropriate.  

III.  Conclusion

For the foregoing reasons, Petitioner is excluded from participation in Medicare, Medicaid, and all other federal health care programs for a minimum of 15 years, effective April 20, 2025.