Alexander Eugene Istomin A.K.A. Eugene Istomin A.K.A. Alexander Eugene Istomin, MD, DAB CR6790 (2025)

DECISION

I affirm the 38-year exclusion of Petitioner, Alexander Eugene Istomin, from participation in all federal health care programs. 

I. Background and Procedural History

In a December 31, 2024 notice, the Inspector General (IG) for the Department of Health and Human Services informed Petitioner that he was being excluded from participating in federal health care programs for a minimum of 38 years.  IG Ex. 1.  The IG based the exclusion on Petitioner’s conviction in the United States District Court for the District of Rhode Island of:  

• a criminal offense related to the delivery of an item or service under Medicare or a state health care program (42 U.S.C. § 1320a-7(a)(1)); and

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• a felony criminal offense related to fraud, theft, embezzlement, breach of fiduciary responsibility, or other financial misconduct, in connection with the delivery of a health care item or service, or with respect to any act or omission in a health care program (other than Medicare and a state health care program) operated by, or financed in whole or in part by, any federal, state, or local government agency (42 U.S.C. § 1320a-7(a)(3)).

IG Ex. 1 at 1.  The exclusion notice alleged the following three aggravating factors as support for lengthening the exclusion from the mandatory minimum of 5 years to 38 years: 

• 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 entities of $50,000 or more. . . . The court ordered [Petitioner] to pay approximately $11,923,600 in restitution;
• The acts that resulted in the conviction, or similar acts, were committed over a period of one year or more.  The acts occurred from about February 2014 to about 2020.  
• The sentence imposed by the court included incarceration.  The court sentenced [Petitioner] to 84 months of incarceration.   

IG Ex. 1 at 1-2. 

On February 21, 2025, the Civil Remedies Division (CRD) received a request for hearing from Petitioner.  Petitioner conceded that the IG was authorized to impose an exclusion; however, Petitioner disputed the length of the exclusion and requested that the exclusion only last five years.  Hr’g Req. at 1.  On February 25, 2025, CRD acknowledged receipt of Petitioner’s hearing request, informed the parties that I would hold a telephonic prehearing conference on April 1, 2025, and issued my Standing Order and the Civil Remedies Division Procedures. 

On March 24, 2025, CRD received a Combined Motion for Extension of Time, To Proceed in Writing, For Procedural Accommodations, and to Correct Petitioner’s Legal Name (March 24 Motion).  Petitioner requested additional time to file responses because his mail is delayed due to being in prison.  March 24 Motion at 1-3.  Petitioner also indicated that he had limited access to legal resources to represent himself.  March 24 Motion at 2.  Further, Petitioner wanted this case to proceed entirely in writing because 

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the prison placed restrictions on telephone calls.  March 24 Motion at 1-2, 5.  Finally, Petitioner requested that his alleged legal name, “Alexander Eugene Istomin MD,” be used in this case.  March 24 Motion at 1-3, 6. 

On April 1, 2025, I issued an Order in which I vacated the prehearing conference and established a schedule for prehearing submissions.  In the Order, I detailed CRD’s efforts to contact prison officials to arrange for the telephonic conference and told Petitioner to inform CRD if he changed his mind and wanted a telephonic conference.  April 1 Order at 2-3.  In addition, I informed Petitioner that he has the right to be represented by counsel, at his own expense.  April 1 Order at 3.  Further, I told the parties that the only issue to be decided is whether the 38-year length of exclusion is unreasonable.  April 1 Order at 3.  I also provided the due dates for the parties’ prehearing exchanges.  April 1 Order at 5.  Because Petitioner indicated a difficulty in obtaining legal resources, I provided copies to him of the relevant statutory and regulatory provisions related to this case, and I directed the IG to provide copies of any case decisions that the IG cites in her filings.  April 1 Order at 5-6.  Finally, I directed the IG to address Petitioner’s request to have his name changed in the case caption.  April 1 Order at 4. 

On May 6, 2025, the IG submitted a prehearing exchange consisting of a brief (IG Br.) and six proposed exhibits (IG Exs. 1-6).  On June 12, 2025, CRD received Petitioner’s prehearing exchange consisting of a brief (P. Br.) and 12 proposed exhibits (P. Exs. 1-12).  In the brief, Petitioner stated:  “As of the date of this filing, May 19, 2025, Petitioner has not received the Prehearing Exchange from the [IG] as directed in the Order issued April 1, 2025.  This failure to comply hinders Petitioner’s ability to prepare and undermines the fairness of the proceeding.”  P. Br. at 3. 

On June 17, 2025, I issued an Order in which I directed the IG to mail another copy of her prehearing exchange to Petitioner and allowed Petitioner to file a supplemental brief and additional exhibits by July 21, 2025.  June 17 Order at 2.  I also noted that Petitioner’s prehearing exchange had not been due until July 7, 2025, and that “[i]t is unclear why Petitioner filed his exchange approximately a month earlier than the due date if Petitioner had not yet received the IG’s prehearing exchange.”  June 17 Order at 1. 

On June 18, 2025, the IG filed a certificate that the IG mailed another copy of the prehearing exchange to Petitioner. 

On July 18, 2025, CRD received Petitioner’s Motion for Extension of Time to File Supplemental Brief and Preservation of Rights to Submit Additional Evidence (July 18 Motion).  Petitioner requested an extension of time until December 1, 2025, to file a supplemental brief and additional exhibits because Petitioner expected to be released from prison by then.  July 18 Motion at 1.  Petitioner alleged that he did not receive my June 17 Order until July 9, 2025, and that he needed access to patient medical and billing records to substantiate a mitigating factor under the regulations.  July 18 Motion at 1-2. 

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On July 23, 2025, I issued an Order that stated: 

• I have reviewed the briefs and documents submitted by the parties thus far.  Petitioner concedes that the IG was authorized to exclude him from participation in all federal health care programs.  Further, Petitioner does not dispute the existence of the three aggravating factors that the IG identified as the basis for increasing the length of exclusion from 5 to 38 years.  Rather, Petitioner’s efforts to show that the length of exclusion needs to be reduced were directed at alleged mitigating circumstances.  
• I grant Petitioner an extension to file a supplemental brief and additional proposed exhibits. However, I do not grant an extension to December 1, 2025.  
• At this point in this case, Petitioner is limited to arguing and presenting evidence that relates to the three aggravating factors identified by the IG (i.e., 42 C.F.R. § 1001.102(b)(1), (2), (5)), and to any mitigating factors listed in the regulations.  None of the mitigating factors listed in the regulations require the type of documentation that Petitioner identified as the reason he needs a long extension of time.  
• Petitioner was excluded under two mandatory exclusion provisions.  42 C.F.R. § 1001.101(a), (c).  This means that he must be excluded for at least five years.  42 C.F.R. § 1001.102(a).  The IG can lengthen the period of exclusion if any of the aggravating factors listed in the regulations exist.  42 C.F.R. § 1001.102(b).  If the IG lengths the period of exclusion, then mitigating factors [specified in the regulations] may be considered.  

• * * * * *

• Petitioner asserts that a much more ranging inquiry into various other mitigating factors is required and cites many cases that do not appear to exist.  It is true that “[t]he evaluation [of the length of exclusion] 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  

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• surrounding the factors in that case.”  Farzana Begum, M.D., DAB No. 2726 at 2 (2016).  However, mitigating circumstances not listed in the regulations cannot be considered.  Baldwin Ihenacho, DAB No. 2667 at 8 (2015).  Ultimately, for exclusions, the trustworthiness of the excluded individual is a key question.  See Morgan v. Sebelius, 694 F.3d 535, 538 (4th Cir. 2012) (“[T]he legislative history to [42 U.S.C.] § 1320-7(a)(3) as it was originally enacted indicates that it was specifically intended to protect federal programs from untrustworthy individuals . . . .”); see also Susan Malady, R.N., DAB No. 1816 at 9 (2002).  Because the purpose of an exclusion is to protect federal health care programs from fraud and abuse, it is remedial and not punitive.  Manocchio v. Kusserow, 961 F.2d 1539, 1541-42 (11th Cir. 1992).  While I want to ensure that Petitioner has an opportunity to respond to the IG’s prehearing exchange, an extension to December 1, 2025, is not necessary to achieve that goal.   

July 23 Order at 2-3.  I extended Petitioner’s due date to September 1, 2025, and provided the IG with ten days following receipt of Petitioner’s supplemental submission to file a reply brief.  July 23 Order at 3. 

On September 16, 2025, I issued an Order noting that CRD did not receive any supplemental filings from Petitioner and that the IG had until September 26, 2025, to file a reply brief and/or objections to Petitioner’s proposed exhibits.  On September 26, 2025, the IG filed a reply brief (IG Reply), which included objections to Petitioner’s proposed exhibits.  Petitioner did not file any other documents or a response to the IG’s objections. 

II. Petitioner’s Name

Petitioner asserts that his legal name was changed to “Alexander Eugene Istomin MD,” noting that there is no comma between “Istomin” and “MD.”  March 24 Motion at 1-3.  Petitioner submitted a copy of his Florida driver’s license as proof of his name change.  March 24 Motion at 6.  Petitioner also submitted a copy of a diploma from a university in the former Soviet Union, which is handwritten and in the English language, that purports to grant Petitioner “the title of Doctor of Medicine.”  P. Ex. 1. 

In the exclusion notice, the IG identified Petitioner as “Alexander Eugene Istomin,” but that he was also known as “Eugene Istomin.”  IG Ex. 1 at 1.  Petitioner’s signature on the Plea Agreement in his criminal case was “Alexander Istomin.”  IG Ex. 4 at 10.  Petitioner’s name on the judgment in his criminal case was: 

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• ALEXANDER E. ISTOMIN
  aka Alexander Istomin, MD
  aka Eugene Istomin 

IG Ex. 6 at 1. 

Apparently responding to this issue, the IG named Petitioner in the case caption for her prehearing brief as: 

• Alexander Eugene Istomin MD
  A.K.A. Eugene Istomin 

IG Br. at 1.  The IG explained this decision by calling the addition of the “MD” as an honorific because Petitioner graduated from medical school.  IG Br. at 3 n.1.  Despite this explanation, the IG did not include a comma between Petitioner’s name and the “honorific title.” 

Petitioner’s driver’s license is insufficient evidence that Petitioner’s name was legally changed so that “MD” is now his surname.  Such an action would be atypical, especially since “MD” or “M.D.” following a last name is commonly understood to mean that the individual holds a Doctor of Medicine degree and is a licensed physician.1  The potential for misunderstanding or fraud is significant.2  I am skeptical of Petitioner’s assertion. 

I reject the IG’s version of the caption because, as the IG stated, Petitioner is not a licensed physician in the United States, despite claiming to hold a medical diploma from the former Soviet Union.  IG Br. at 2-3.  The diploma is odd in that it is in English and is a form that was completed in handwriting.  The diploma does not say it is a translation or certified translation of the diploma.  Further, the diploma does not say that Petitioner received a Doctor of Medicine Degree, but rather that Petitioner “is awarded the title of Doctor of Medicine.”  P. Ex. 1 at 2. 

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As shown in the caption of this decision, I adopt the name and aliases used in the caption for the judgment issued in Petitioner’s criminal case.  IG Ex. 6 at 1. 

III. Admission of Exhibits

I admit IG Exhibits 1 through 6 into the record, without objection.  Standing Order ¶ 13; see 42 C.F.R. § 1005.8(c). 

The IG objected to Petitioner Exhibits 1 through 10 because none of them assist in challenging the existence of an aggravating factor used to lengthen his exclusion and none of them establish a mitigating factor cognizable under the regulations.  IG Reply at 2.  I also note that Petitioner Exhibits 11 and 12 are not substantive exhibits but information that should have been attached to Petitioner’s brief. 

I agree with the IG that most of Petitioner’s proposed exhibits are not relevant and must be excluded.  As stated in the July 23 Order, quoted above, Petitioner does not dispute the basis for the exclusion or the aggravating factors identified by the IG.  P. Br. at 1-2.  Petitioner’s primary argument is that he “presents overwhelming evidence of rehabilitation, absence of patient harm, and continued public trust, all of which demand a reconsideration of the exclusion’s duration.”  P. Br. at 4.  Petitioner points to evidence he submitted that show the five-star reviews he received as well as individual patient reviews posted on websites.  P. Br. at 8-9.  Further, Petitioner provided evidence to support an argument that he has been rehabilitating himself.  P. Br. at 10.  Petitioner also relies on letters of reference.  P. Br. at 11. 

The only mitigating factors under the regulations that are available to Petitioner involve:  being only convicted of misdemeanors; being found by a court to be less culpable of the crimes committed due to a mental, emotional, or physical condition; and cooperation with law enforcement that results in new cases being opened or the conviction of others.  42 C.F.R. § 1001.102(c).  Petitioner does not allege that any of these mitigating factors exist and none of Petitioner’s proposed exhibits support the existence of any of these mitigating factors.  As a result, Petitioner Exhibits 5 through 10 are irrelevant and must be excluded.  42 C.F.R. § 1005.17(c); Baldwin Ihenacho, DAB No. 2667 at 8 (2015).  I also exclude, as substantive exhibits, Petitioner Exhibits 11 and 12. 

I admit Petitioner Exhibits 1 through 4 into the record because they relate to Petitioner’s educational background and medical training, which are generally relevant. 

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IV. Decision on the Written Record

Neither the IG nor Petitioner had any witnesses to offer in this case and both stated that they did not believe an in-person hearing was necessary.  IG Br. at 10-11; P. Br. at 2.  Therefore, I issue this decision based on the written record.  Standing Order ¶ 12; see also 42 C.F.R. § 1005.6(b)(5). 

V. Issue

Whether the 38-year length of exclusion imposed on Petitioner is unreasonable. 

VI. Jurisdiction

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

VII. Findings of Fact

1. In 1989, Petitioner received a diploma from a medical institute in the former Soviet Union. Ex. 1.  In 1995, Petitioner received a Master of Science degree from New York University’s Graduate School of Public Service.  P. Ex. 3.  In 2005, Petitioner received a Master of Science degree from Adelphi University’s School of Nursing.  P. Ex. 2.  In 2006, Petitioner was certified as an Adult Nurse Practitioner by the American Academy of Nurse Practitioners.  P. Ex. 4.
2. On August 6, 2021, a grand jury empaneled by the United States District Court for the District of Rhode Island (District Court) returned an Indictment charging Petitioner with ten counts of Health Care Fraud, Mail Fraud, and Money Laundering. IG Ex. 3; IG Ex. 5 at 3.
3. On September 8, 2022, Petitioner signed a Plea Agreement in which Petitioner agreed to plead guilty to the charges in an Information that was going to be filed with the District Court. IG Ex. 4.  The Plea Agreement was filed with the District Court on September 13, 2022.  IG Ex. 5 at 7.
4. On September 13, 2022, the United States Attorney’s Office filed an 11-count Information with the District Court charging Petitioner with Health Care Fraud in violation of 18 U.S.C. § 1347, Mail Fraud in violation of 18 U.S.C. § 1341, Aggravated Identity Theft in violation of 18 U.S.C. § 1028A(a)(1), and Causing the Introduction of Misbranding Drugs in violation of 21 U.S.C. §§ 331(k) and 333(a)(2). IG Ex. 2; IG Ex. 5 at 7. 

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5. The Information alleged that Petitioner had various nursing licenses in the states of Rhode Island, New York, and Florida, which included Registered Nurse, Advanced Practice Registered Nurse, Certified Nurse Practitioner, and Controlled Substance Registration – Advanced Practice Registered Nurse. IG Ex. 2 at 1-2.
6. The Information alleged that Petitioner practiced and/or held management positions at health care entities located in Rhode Island, New York, and Florida. IG Ex. 2 at 1-3.
7. The Information alleged that Petitioner was enrolled as a provider in the Medicare program but billed private health insurance entities as a non-participating provider. IG Ex. 2 at 4-6.
8. Count 1 of the Information charged Petitioner with Health Care Fraud. The Information alleged that, from February 2014 through September 2022, Petitioner billed commercial insurers and Medicare for services that were never provided.  Petitioner billed for services allegedly performed in certain states when Petitioner was in fact in another state or out of the country.  Petitioner waived copayments for Medicare beneficiaries in order to induce beneficiaries not to report Petitioner’s fraudulent billing to Medicare.  IG Ex. 2 at 7-10.  
9. Counts 2 through 9 of the Information charged Petitioner with Mail Fraud. The Information alleged that, from February 2014 to September 2022, Petitioner improperly submitted bills for reimbursement to commercial health insurers and Medicare that falsely represented that the medical services were medically necessary, eligible for commercial health insurance reimbursement, and had been provided.  The Information listed eight fraudulent claims filed from 2014 through 2021 with private health insurers.  IG Ex. 2 at 10-11.
10. Count 10 of the Information charged Petitioner with Aggravated Identity Theft. The Information alleged that Petitioner, without lawful authority, used the name and date of birth of J.K. in relation to the charge of Health Care Fraud. IG Ex. 2 at 11.
11. Count 11 of the Information charged Petitioner with Causing the Introduction of Misbranded Drugs. The Information alleged that Petitioner dispensed the prescription drugs Ezetimibe and Rosuvastatin without the valid prescription of a practitioner licensed by law to administer the drugs, while the drugs were held for sale after they had been shipped in interstate commerce. IG Ex. 2 at 11-12.
12. In an April 4, 2022 Judgment in a Criminal Case, the District Court stated that Petitioner pleaded guilty to Counts 1 through 11 of the Information and that Petitioner was adjudicated guilty of the following: Health Care Fraud, 18 U.S.C. 

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12. § 1347 (Count 1); Mail Fraud, 18 U.S.C. § 1341 (Counts 2-9); Aggravated Identity Theft, 18 U.S.C. § 1028A(a)(1) (Count 10); and Causing the Introduction of Misbranding Drugs, 18 U.S.C. § 331(k), 333(a)(2) (Count 11). IG Ex. 6 at 1-2.
13. The District Court sentenced Petitioner to 84 months of imprisonment. IG Ex. 6 at 3.
14. The District Court found that Petitioner’s criminal acts resulted in a total loss of $11,923,686.30 to 11 public and private health insurance entities, and the District Court ordered Petitioner to pay $11,923,686.30 in restitution to the following entities (IG Ex. 6 at 7-8):
    1. Medicare Part D Prescriptions - $5,113,317;
    2. Medicare Medical Claims - $614,663;
    3. Aetna - $3,287,791.75;
    4. Cigna Healthcare - $130,642.96;
    5. Humana - $1,120,982.62;
    6. Blue Cross/Blue Shield Florida - $4,994.00;
    7. Blue Cross/Blue Shield Mass Medical - $114,638.74;
    8. Anthem Medical Claims - $424,578.03;
    9. Anthem Prescription Claims - $32,816.69;
    10. United Healthcare - $720,172.50;
    11. United Healthcare Prescriptions - $359,089.01; 

VII.     Conclusions of Law and Analysis

1. 1. Petitioner was convicted of criminal offenses that require exclusion from federal health care programs under 42 U.S.C. § 1320a‑7(a)(1), (3).

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 the delivery of an item or service under Medicare or a state health care program, such as Medicaid.  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 felony that occurred after August 21, 1996, relating to fraud, theft, embezzlement, breach of fiduciary responsibility, or other financial misconduct in connection with the delivery of a health care item or service.  42 U.S.C. § 1320a‑7(a)(3). 

Petitioner does not dispute that he is subject to mandatory exclusion under both of these provisions of law.  P. Br. at 1; Hr’g Req. at 1.  Based on my review of the record, as 

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expressed in the Findings of Fact, I agree with the IG and Petitioner that Petitioner is subject to exclusion under the statutes cited above. 

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) and (3), Petitioner must be excluded for a minimum of five years.  42 U.S.C. § 1320a‑7(c)(3)(B). 

1. 3. The IG has proven that three 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) or (3) must be excluded for a minimum of five years, the statute does not preclude a longer term of exclusion.  The applicable regulations provide a list of aggravating factors that may serve as the basis for extending an exclusion beyond five years.  42 C.F.R. § 1001.102(b).  As explained below, the IG proved the existence of three 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 1. 

1. a. The District Court found that Petitioner’s criminal conduct caused $11,923,686.30 in loss to the Medicare program and nine private health insurance entities. The District Court ordered that Petitioner pay restitution in that amount to the Medicare program and those private health insurance companies. 

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 or to one or more entities of $50,000 or more.  42 C.F.R. § 1001.102(b)(1).  As explained in Finding of Fact 14, the District Court found that Petitioner caused a $11,923,686.30 loss to the Medicare program and nine private health insurers and ordered restitution in that amount to be paid.  Therefore, I conclude the IG proved this aggravating factor. 

1. b. The District Court sentenced Petitioner to 84 months of incarceration.

The regulations provide the following as an aggravating factor:  “The sentence imposed by the court included incarceration.”  42 C.F.R. § 1001.102(b)(5).  As stated in Finding of Fact 13, the District Court sentenced Petitioner to 84 months of incarceration.  Therefore, I conclude that the IG proved this aggravating factor. 

1. c. Petitioner’s acts that resulted in conviction, or similar acts, were committed over the course of approximately eight years.

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The regulations provide the following as an aggravating factor:  “The acts that resulted in conviction, or similar acts, were committed over a period of one year or more.”  42 C.F.R. § 1001.102(b)(2).  As stated in Findings of Fact 8 and 9, Counts 1 through 9 in the Information alleged that Petitioner’s fraudulent acts occurred from 2014 to 2022, or for approximately 8 years.  As stated in Finding of Fact 3, Petitioner pleaded guilty to the charges in that Information.  Therefore, I conclude that the IG proved this aggravating factor. 

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

If there are aggravating factors that justify increasing the length of exclusion to exceed five years, then the length of exclusion can be reduced if certain mitigating factors listed in the regulations are present in a case.  42 C.F.R. § 1001.102(c).  Petitioner has the burden to prove any mitigating factors that he alleges.  See Stacey R. Gale, DAB No. 1941 (2004); Standing Order ¶ 7; see also 42 C.F.R. § 1005.15(c). 

Petitioner asserted several matters as mitigating, as outlined in Section III of this decision.  However, as discussed in that section, none of Petitioner’s arguments for mitigation relate to any of the factors listed in the regulations.  Despite all of Petitioner’s arguments, I cannot consider them because they are not listed as mitigating factors in the regulations.  Meeks v. Sec’y, Dep’t of Health & Hum. Servs., No. 25-11689, 2025 WL 2827648, *4 n.2 (11th Cir. Oct. 6, 2025); Ihenacho, DAB No. 2667 at 8.  

1. 5. The 38-year length of Petitioner’s exclusion is not unreasonable based on a qualitative analysis of the aggravating factors in this case.

When considering the length of exclusion, “[t]he evaluation does not rest on the specific number of aggravating or mitigating factors or any rigid formula for weighing those factors, but rather on a case-specific determination of the weight to be accorded each factor based on a qualitative assessment of the circumstances surrounding the factors in that case.”  Farzana Begum, M.D., DAB No. 2726 at 2 (2016).  However, an excluded individual’s age, financial condition, and employment prospects are not considered.  Jeremy Robinson, DAB No. 1905 (2004); Zahid Imran, M.D., DAB No. 2680 at 14 (2016).  Ultimately, I must decide whether the 38-year length of exclusion is unreasonable, i.e., whether it is within a reasonable range based on the relevant factors.  42 C.F.R. § 1001.2007(a)(1)(ii); 57 Fed. Reg. 3298, 3321 (Jan. 29, 1992).  

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When conducting this analysis, I also consider the fact that health care providers do not have a fundamental right to participate in federal health care programs; therefore, an exclusion needs only to be rationally related to a legitimate government interest, such as patient health or protecting federal health care programs from fraud and abuse.  Parrino v. Price, 869 F.3d 392, 398 (6th Cir. 2017).  As a result, the trustworthiness of the excluded individual is a key question.  See Morgan v. Sebelius, 694 F.3d at 538 (4th Cir. 2012) (“[T]he legislative history to § 1320-7(a)(3) as it was originally enacted indicates that it was specifically intended to protect federal programs from untrustworthy individuals . . . .”); see also Susan Malady, R.N., DAB No. 1816 at 9 (2002).  Because exclusions are meant to protect federal health care programs from fraud and abuse, they are remedial and not punitive.  Manocchio v. Kusserow, 961 F.2d 1539, 1541-42 (11th Cir. 1992). 

Turning to the aggravating factors in this case, Petitioner caused nearly $12 million in loss to the Medicare program and private health insurers, with nearly half of that loss attributed to Medicare and Medicare Part D.  IG Ex. 6 at 7-8.  This is a staggering 240 times the minimum $50,000 amount in loss required to make the loss an aggravating factor.  Although Petitioner asserts that this loss stemmed from “failures of administrative oversight, not from intentional fraud or patient endangerment” (P. Br. at 7) and that “[u]pon advice of counsel, the petitioner accepted responsibility under the doctrine of respondeat superior” (P. Br. at 12), I am unable to consider these arguments because they are impermissible collateral attacks on Petitioner’s conviction and guilty plea.  42 C.F.R. § 1001.2007(d).  Petitioner pleaded guilty to the charges in the Information, which indicated that he engaged in fraudulent billing for unnecessary services or services that were never provided.  The extremely high amount of loss in this case requires the imposition of a lengthy exclusion. 

Petitioner engaged in a health care fraud scheme for approximately eight years.  This multi-year length of criminal conduct involving fraud weighs heavily against a finding of Petitioner’s trustworthiness to participate in federal programs.  See Janice Cassandra Wrenn, DAB No. 3118 at 17 (2023).  This length of the criminal conduct shows both Petitioner’s persistence in committing fraud and his ability to evade detection of that fraud.  This aggravating factor weighs heavily in favor of a lengthy exclusion. 

Petitioner was also sentenced to 84 months in prison.  A prison sentence of as little as nine months is considered to be relatively substantial for exclusion purposes.  Jason Hollady, M.D., a/k/a Jason Lynn Hollady, DAB No. 1855 at 12 (2002).  Petitioner’s sentence is more than nine times longer than the nine months in Hollady and constitutes a very significant basis to increase the length of exclusion. 

Petitioner believes that a 38-year exclusion is punitive and requests that I reduce the exclusion to the minimum of five years.  P. Br. at 14.  Petitioner asserts that a five-year length of exclusion would: 

• Reflect the mandatory minimum set forth in 42 U.S.C. § 1320a-7(a);
• Align with comparable exclusion decisions where rehabilitation was demonstrated;
• Preserve the statute’s remedial function;

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• Allow meaningful professional reinstatement before statutory retirement age;
• And uphold the principles of fairness, proportionality, and individualized justice required under federal administrative law.

15. Br. at 14-15. Other than the fact that five years is the mandatory minimum established in the statute, Petitioner’s other arguments are unhelpful to his case. Petitioner asserts that there are comparable cases where rehabilitation was demonstrated, however, rehabilitation is not a mitigating factor and has not been considered in past decisions.  A lengthy exclusion in this matter does serve the remedial function of protecting federal health care programs from fraud.  Allowing Petitioner to be reinstated before he retires is irrelevant.  And the 38-year exclusion is fair and proportional considering the extreme aggravating factors in this case. 

I note that Petitioner’s fraud on and loss to Medicare and Medicare Part D is the basis for the exclusion under 42 U.S.C. § 1320a-7(a)(1).  The fraud on and loss to the private insurers is the basis for the exclusion under 42 U.S.C. § 1320a-7(a)(3).  The loss under each ground for exclusion is approximately $6 million.  Had Petitioner only been excluded on either of these statutory provisions, an extremely lengthy exclusion would be warranted.  However, being excludable under both lends support to a very long period of exclusion.  

The aggravating factors in this case show that Petitioner is an extreme threat to Federal health care programs.  Further, he seeks to avoid responsibility for his conduct, even after admitting the conduct in his criminal case, making him an unacceptable risk to those programs.  I cannot find that a 38-year exclusion is unreasonable.3

VIII. Conclusion

I affirm the IG’s determination to exclude Petitioner for 38 years from participating in all federal health care programs under 42 U.S.C. § 1320a-7(a)(1) and (3).