Musa Bangura, DAB CR6877 (2026)

DECISION

Petitioner, Musa Bangura, is excluded from participation in Medicare, Medicaid, and all federal health care programs pursuant to section 1128(a)(3) of the Social Security Act (Act) (42 U.S.C. § 1320a-7(a)(3)), effective May 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)).  Exclusion for an additional four years for a total minimum exclusion of nine years1 is not unreasonable based on the existence of three aggravating factors and no mitigating factor. 

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I. Background

The Inspector General (IG) notified Petitioner by letter dated April 30, 2025, that he was excluded from participation in Medicare, Medicaid, and all federal health care programs for a minimum of nine years.  The IG cited section 1128(a)(3) of the Act as the authority for Petitioner’s exclusion based on his felony conviction in the United States District Court, District of Maryland, (district court) of a criminal offense related to fraud, theft, embezzlement, breach of fiduciary responsibility, or other financial misconduct in connection with the delivery of a health care item or service.  The IG extended the five-year minimum period of exclusion to nine years citing the existence of three aggravating factors.  IG Exhibit (Ex.) 1 at 1.  

Petitioner requested a hearing pursuant to 42 C.F.R. § 1005.2 by letter dated June 18, 2025, and postmarked June 24, 2025.  On July 2, 2025, the case was docketed and assigned to Judge Jacinta L. Alves and her Standing Order was issued.  Judge Alves convened a prehearing conference on October 21, 2025, the substance of which was documented in her October 22, 2025 Order Following Prehearing Conference and Setting Schedule for Prehearing Submissions (Prehearing Order). 

On December 2, 2025, the IG filed an informal brief and IG Exs. 1 through 6. 

On December 29, 2025, the case was reassigned to me pending Judge Alves’ retirement.  On December 31, 2025, I issued a notice informing the parties that pursuant to my authority under 42 C.F.R. § 1005.4(b)(12) I would sua sponte consider summary judgment in favor of each party guided by Fed. R. Civ. P. 56 and related case authorities. 

Petitioner filed a brief and Petitioner’s Exhibits (P. Exs.) 1 and 2 on January 12, 2026.  The IG filed a reply brief on February 24, 2026.  The parties filed a joint stipulation of facts on February 24, 2026.  Petitioner filed a surreply on March 24, 2026. 

No objections have been made to my consideration of IG Exs. 1 through 6 or P. Exs. 1 and 2 and all are admitted and considered as evidence. 

II. Discussion

1. A. Applicable Law

Section 1128(f) of the Act (42 U.S.C. § 1320a-7(f)) establishes Petitioner’s rights 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). 

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Pursuant to section 1128(a)(3) of the Act, the Secretary must exclude from participation in any federal health care program: 

• Any individual or entity that has been convicted for an offense which occurred after [August 21, 1996], under Federal or State law, in connection with the delivery of a health care item or service or with respect to any act or omission in a health care program (other than those specifically described in [section 1128(a)(1)]) operated by or financed in whole or in part by any Federal, State, or local government agency, of a criminal offense consisting of a felony relating to fraud, theft, embezzlement, breach of fiduciary responsibility, or other financial misconduct.

The Secretary has promulgated regulations implementing those provisions of the Act.  42 C.F.R. § 1001.101(c). 

Pursuant to section 1128(i) of the Act, an individual is convicted of a criminal offense when: (1) a judgment of conviction has been entered by a federal, state, or local court whether or not an appeal is pending or the record has been expunged; (2) there is a finding of guilt in 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 has been withheld.  42 U.S.C. § 1320a-7(i)(1)-(4); 42 C.F.R. § 1001.2. 

Section 1128(c)(3)(B) of the Act provides that an exclusion imposed under section 1128(a) of the Act will be for 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 IG proposes to impose an exclusion greater than five years.  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).  There may be no collateral attack of the conviction that is the basis for the exclusion on either substantive or procedural grounds.  42 C.F.R. § 1001.2007(d).  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(b), (c); Standing Order ¶ 5. 

1. B. Issues

The Secretary has by regulation limited my scope of review to two issues: 

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• Whether the IG has a basis for excluding Petitioner from participation in Medicare, Medicaid, and all federal health care programs; and
• Whether the length of the proposed period 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 undisputed fact and analysis. 

Petitioner concedes that the IG has a basis to exclude Petitioner.  But Petitioner challenges the nine-year exclusion as an unreasonable period.  P. Br. at 1.  Petitioner does not challenge the existence of three aggravating factors.  But Petitioner argues that there is a mitigating factor under 42 C.F.R. § 1001.102(c)(3) (cooperation with law enforcement) that the IG failed to consider.  P. Br. at 2-3, P. Reply.  Petitioner requests that I reassess the period of exclusion. 

1. 1. Petitioner’s request for hearing was timely and I have jurisdiction.

There is no dispute that Petitioner timely requested a hearing and that I have jurisdiction pursuant to section 1128(f) of the Act and 42 C.F.R. pt. 1005. 

2. 2. Summary judgment is appropriate in this case.

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 in an exclusion case when there are no disputed issues of material fact and when the undisputed facts, clear and not subject to conflicting interpretation, demonstrate that one party is entitled to judgment as a matter of law.  Tanya A. Chuoke, R.N., DAB No. 1721 (2000); David A. Barrett, DAB No. 1461 (1994); Robert C. Greenwood, DAB No. 1423 (1993); Thelma Walley, DAB No. 1367 (1992); Catherine L. Dodd, R.N., DAB No. 1345 (1992); John W. Foderick, M.D., DAB No. 1125 (1990).  When the undisputed material facts of a case support summary judgment, 

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there is no need for a full evidentiary hearing, and neither party has the right to one.  Surabhan Ratanasen, M.D., DAB No. 1138 (1990); Foderick, DAB No. 1125.  In opposing a properly supported motion for summary judgment, the nonmovant must allege facts that show there is a genuine dispute of material fact that affects the proponent’s prima facie case or that might establish a defense.  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 permissible inferences in the nonmovant’s favor.  Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-57 (1986). 

Neither party requested summary judgment.  But I informed the parties that within my authority as the assigned ALJ, I would consider whether summary judgment was appropriate for either party.  There are no genuine disputes of material fact in this case.  All issues must be resolved as matters of law.  Accordingly, I conclude that summary judgment is appropriate.  I further conclude that summary judgment for the IG is appropriate but not for Petitioner. 

3. 3. Section 1128(a)(3) of the Act requires Petitioner’s exclusion from participation in Medicare, Medicaid, and all other federal health care programs.
   1. a. Undisputed Facts

The following facts are undisputed.  All factual inferences are drawn in Petitioner’s favor in considering disposition on summary judgment. 

On October 26, 2022, Petitioner was charged by an information filed in the district court.  Petitioner was charged with one count of wire fraud in violation of 18 U.S.C. § 1343.  IG Ex. 2.  Conviction of wire fraud generally subjects one to imprisonment for up to 20 years.  18 U.S.C. § 1343; IG Ex. 3 at 2.  An offense is a Class C felony if the maximum imposable period of imprisonment is 10 or more years but less than 25 years.  18 U.S. Code § 3559(a)(2). 

On December 6, 2022, Petitioner signed a plea agreement.  Petitioner agreed to plead guilty to the one count of wire fraud.  IG Ex. 3 at 1.  Petitioner agreed as part of his plea agreement that the government could prove facts necessary to convict him of wire fraud.  Petitioner entered a stipulation of facts as part of his plea agreement.  Petitioner admitted in the stipulation that he and his co-conspirators, from around 2015 through at least 2018, devised and entered into a scheme to sell fraudulent nursing diplomas, education 

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transcripts, and other credentials to help the purchasers of the items to fraudulently obtain nursing licenses so they could find employment in healthcare.  IG Ex. 3 at 10.  Petitioner admitted that he caused losses to purchasers of the false and fraudulent documents of at least $556,000.  Petitioner admitted he used email to communicate with the Maryland Board of Nursing to falsely verify that purchasers of the documents graduated from nursing school.  IG Ex. 3 at 10-11. 

On October 15, 2024, the district court accepted Petitioner’s guilty plea and entered judgment finding Petitioner guilty pursuant to his plea of one count of wire fraud in violation of 18 U.S.C. § 1343.  IG Ex. 4 at 1.  Petitioner was sentenced to 13 months in prison followed by two years of supervised release.  IG Ex. 4 at 2-6.  The district court departed from the federal sentencing guidelines by imposing a sentence below the guidelines citing Petitioner’s substantial assistance, I infer to law enforcement or the United States Attorney’s staff.  P. Ex. 1 at 2.  The district court also cited considerations of Petitioner’s age, his charitable service/good works, his community ties, his family ties and responsibilities, and evidence of pre-sentence rehabilitation.  P. Ex. 1 at 3. 

On February 15, 2024, the Virginia Board of Nursing suspended Petitioner’s registered nurse license based on conduct similar to the conduct for which he was charged in district court.  IG Ex. 5.  On May 24, 2024, the Virginia Board of Nursing entered a consent order in which Petitioner agreed he committed acts similar to those for which he was charged in the district court.  Petitioner consented to revocation of his Virginia registered nurse license rather than proceed to a formal administrative proceeding.  IG Ex. 6. 

Petitioner submitted his affidavit as P. Ex. 2.  He testified that following his arrest in 2021, he agreed to cooperate with the United States Attorney for Maryland as part of his plea agreement.  He assisted the United States Attorney staff for two years, meeting with them for numerous proffer sessions.  He agreed to fully cooperate against his co-conspirators, including providing testimony.  However, he never had to testify because the others pleaded guilty.  Petitioner testified that when he was sentenced, the district court determined that a downward departure from the sentencing guidelines was appropriate due to Petitioner’s substantial assistance.  I accept Petitioner testimony as true for purposes of summary judgment. 

The parties entered a joint stipulation of facts (Jt. Stip.) to avoid release of the unredacted sentencing memorandum from the district court.  The parties stipulate that both Petitioner and the IG had the opportunity to review the sentencing memorandum and it is the basis for the stipulated facts.  The parties stipulated that at sentencing the United States Attorney moved for a two-level downward departure from federal sentencing guidelines because Petitioner provided substantial assistance in the investigation or prosecution of another person.  Petitioner participated in proffer sessions in 2022 and 2023, during which he provided information related to his role in the conspiracy and that of his co-

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conspirators and a third-party.  The United States Attorney’s position at sentencing was the information Petitioner provided was thorough and credible, but Petitioner did not provide significant new unknow information.  Petitioner’s cooperation was limited by the fact he did not have to testify against his co-conspirators because they pleaded guilty.  But the government was prepared to call him to testify.  Jt. Stip. 

Petitioner’s counsel represents that during a hearing in this case Petitioner would testify that both his co-conspirators knew he was prepared to testify against them.  P. Reply at 4.  I accept counsel’s representation as true for purposes of summary judgment. 

1. b. Analysis

The IG cites section 1128(a)(3) of the Act as the basis for Petitioner’s mandatory exclusion.  The statute, as applicable in this case, requires the Secretary to exclude from participation in any federal health care program any individual or entity:  

• (1) Convicted of a criminal offense under federal or state law;
• (2) The criminal offense occurred after August 21, 1996 (the date of enactment of the Health Insurance Portability and Accountability Act of 1996);
• (3) The criminal offense was committed
  • (a) in connection with the delivery of a health care item or service, or
  • (b) with respect to any act or omission in a health care program other than Medicare or Medicaid, that is operated or financed by the federal, state, or a local government;
• (4) The criminal offense was a felony; and
• (5) The criminal offense was related to fraud, theft, embezzlement, breach of fiduciary responsibility, or other financial misconduct.   

Act § 1128(a)(3); 42 C.F.R. § 1001.101(c).  When the elements of section 1128(a)(3) of the Act are satisfied, Congress mandates exclusion and the Secretary and I have no discretion to not exclude.  I conclude that the elements that trigger mandatory exclusion under section 1128(a)(3) of the Act are satisfied in this case. 

Petitioner does not dispute that on October 15, 2024, he was convicted under federal law pursuant to his guilty plea when the district court accepted his guilty plea finding him guilty of the crime and then entered judgment of conviction.  Act § 1128(i)(1)-(3). 

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Petitioner does not dispute that he was convicted of the felony offense of wire fraud.  Petitioner acknowledged in his plea agreement that he was subject to a maximum period of imprisonment of up to 20 years if convicted of wire fraud.  IG Ex. 3 at 2.  A federal criminal offense that is punishable by imprisonment for less than 25 years and more than 10 years is a Class C felony.  18 U.S.C. § 3559(a)(2). 

Petitioner does not dispute that his offense was related to fraud.  In fact, wire fraud is, as a matter of law, fraud conducted by wire, radio, or television.  18 U.S.C. § 1343.  Petitioner admitted as part of his plea agreement that he used email to communicate with the Maryland Board of Nursing in furtherance of his crime.  IG Ex. 3 at 11.  

Petitioner does not dispute the offense of which he was convicted occurred after August 21, 1996.  As part of his plea agreement, Petitioner admitted that the wire fraud occurred beginning in or around 2015 and continued through at least in or around 2018.  IG Ex. 3 at 10. 

Petitioner does not dispute that his offense was either in connection with the delivery of health care through state licensed nurses or an act or omission in a health care program, i.e., the state licensing of nurses.2  P. Br.; P. Reply.  The undisputed facts establish the required connection, rational link, or nexus between Petitioner’s criminal offense and the delivery of a health care item or service or an act or omission in a state health care program.  My decision is guided by the decision of the Departmental Appeals Board (Board) in W. Scott Harkonen, M.D., DAB No. 2485 (2012), aff’d, Harkonen v. Sebelius No. C13-0071 PJH, 2013 WL 5734918 (N.D. Cal. Oct. 22, 2013).  In Harkonen, an appellate panel of the Board discussed in detail the elements of section 1128(a)(3) of the Act, which requires that the offense of which one is convicted have been committed in connection with the delivery of a health care item or service.  The Board discussed that in prior cases, it had interpreted the language “in connection with” to require a common-sense connection or nexus, also characterized as a “rational link,” between the criminal offense and the delivery of a health care item or service.  Harkonen, DAB No. 2485 at 7.  The Board noted that in Erik D. DeSimone, R.Ph., DAB No. 1932 (2004), it found the required nexus in a case where a pharmacist, in the guise of performing his professional duties, took controlled substances for his own use.  Harkonen, DAB No. 2485 at 7.  In Kenneth M. Behr, DAB No. 1997 (2005), the Board found the nexus where a pharmacist 

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who had access to drugs due to his position attempted to embezzle those drugs, rejecting the argument that the underlying criminal offense must involve actual delivery of a health care item or service.  Harkonen, DAB No. 2485 at 7-8.  In Ellen L. Morand, DAB No. 2436 (2012), the Board concluded that the Petitioner’s theft from the evening deposit of the pharmacy that employed her had the requisite nexus considering that the evening deposit included revenue from the sale of health care items and that the Petitioner diverted those funds to her use.  Harkonen, DAB No. 2485 at 8.  The Board summarized its prior holdings to be that “frauds or thefts that are linked in a rational way to the delivery of a health care item or service do fall within the ambit” of section 1128(a)(3).  Harkonen, DAB No. 2485 at 8.  The Board further noted that its interpretation is consistent with the interpretation of similar language found in section 1128(a)(1) of the Act (42 U.S.C. § 1320a-7(a)(1)).  Harkonen, DAB No. 2485 at 9.  The Board pointed out that its interpretations of the language of section 1128(a) “effectuates the twin purposes of section 1128(a): (1) to protect federal health care programs and their beneficiaries from individuals who have been shown to be untrustworthy; and (2) to deter health care fraud.”  Harkonen, DAB No. 2485 at 9 (citations omitted).  In Harkonen, the Board stated that section 1128(a)(3) does not require proof of an actual impact or effect upon the delivery of a health care item or service, rather the ALJ must consider all the evidence of circumstances underlying the criminal offense, including evidence extrinsic to the criminal proceedings if reliable and credible, to find the rational link between the criminal offense and the delivery of a health care item or service.  Harkonen, DAB No. 2485 at 10.  Petitioner admitted in the stipulation of facts that was entered as part of his plea agreement, inter. alia, that to obtain a nursing license there are requirements to graduate from an approved nursing program and pass nursing boards.  Petitioner admitted that he and his co-conspirators entered a scheme to sell fraudulent nursing diplomas, education transcripts, and other credentials to help the purchasers fraudulent obtain nursing licenses in order to find employment as nurses.  IG Ex. 3 at 10.  In this case, there is a nexus between Petitioner’s felony conviction and the delivery of a health care item or service or an act or omission in the state health care program related to licensing nurses.  Petitioner’s wire fraud involved selling false documentation of nursing training so that the purchasers could obtain nurse licenses from the State of Virginia to engage in the delivery of nursing care or services.  Thus, Petitioner’s crime affected the quality of nursing care or services and involved acts affecting the states program of nurse licensing. 

Accordingly, I conclude that the elements necessary to trigger an exclusion pursuant to section1128(a)(3) of the Act are satisfied by the undisputed facts, and Petitioner’s exclusion is required by the Act. 

4. 4. Section 1128(c)(3)(B) of the Act requires a minimum exclusion of five years for any exclusion pursuant to section 1128(a) of the Act.

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I have concluded that a basis exists to exclude Petitioner pursuant to section 1128(a)(3) of the Act.  Therefore, the IG must exclude Petitioner for a minimum period of five years pursuant to section 1128(c)(3)(B) of the Act.  There is no discretion to impose a lesser period.  The remaining issue is whether it is unreasonable to extend Petitioner’s exclusion by an additional three years for a total exclusion period of nine years. 

5. Three aggravating factors established by 42C.F.R. § 1001.102(b) exist in this case that were considered by the IG as a basis to extend the period of exclusion beyond five years.

The IG cited three aggravating factors in extending Petitioner’s period of exclusion from the mandatory minimum five-year exclusion to nine years: 

1. The acts that resulted in conviction occurred over a period of one year or more, specifically from about 2015 to about 2018.  42 C.F.R. § 1001.102(b)(2).  
2. The district court sentenced Petitioner to 13 months in prison.  42 C.F.R. § 1001.102(b)(5).  
3. Petitioner was subject to adverse action by the Virgina Board of Nursing, which suspended and then revoked his registered nurse license.  42 C.F.R. § 1001.102(b)(9).   

IG Ex. 1.  Each aggravating factor considered by the IG is supported by the evidence and undisputed by Petitioner.  The information and Petitioner’s plea agreement are consistent that the criminal conduct occurred for over a year from in or around 2015 through at least in or around 2018.  IG Ex. 2 at 3 (alleges through 2019); IG Ex. 3 at 10 (admitted through 2018).  The district court sentenced Petitioner to 13 months in prison.  IG Ex. 4 at 2.  The Virginia Board of Nursing suspended and then revoked Petitioner’s registered nurse license.  IG Exs. 5-6. 

Petitioner does not argue that the IG considered an aggravating factor authorized by 42 C.F.R. § 1001.102(b) that does not exist.  P. Br. at 2; P. Reply at 1.  

6. 6. No mitigating factor established by 42 C.F.R. § 1001.102(c) exists in this case that the IG failed to consider in determining the period of exclusion.

Petitioner’s argument in this case is that the IG failed to consider a mitigating factor under 42 C.F.R. § 1001.102(c)(3).  Because the IG failed to consider a mitigating factor the nine-year exclusion is unreasonable and I should reassess or redetermine the reasonable period of exclusion.  P. Br., P. Reply. 

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If any of the aggravating factors authorized by 42 C.F.R. § 1001.102(b) are cited by the IG to justify an exclusion of longer than five years, as in this case, 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 listed in 42 C.F.R. § 1001.102(c). 

The mitigating factor related to cooperation with federal or state officials is established by 42 C.F.R. § 1001.102(c)(3), which provides: 

• (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 [42 C.F.R. pt. 1003].   

42 C.F.R. § 1001.102(c)(3).  Petitioner does not allege that a civil money penalty was imposed against anyone based on his cooperation and 42 C.F.R. § 1001.102(c)(3)(iii), is not considered further. 

Petitioner’s argument is that his cooperation more likely than not resulted in others being convicted or additional cases being investigated, criteria of 42 C.F.R. § 1001.102(c)(3)(i) and (ii).  P. Reply at 3-5.  I accept Petitioner’s assertions regarding his cooperation as true for purposes of summary judgment.  Specifically, I accept that Petitioner cooperated and provided information regarding his co-conspirators;  he was available to testify against his co-conspirators had they not pleaded guilty; prosecutors in Petitioner’s case moved for a two-level departure below the federal sentencing guidelines based on Petitioner’s substantial assistance; and the district court imposed a prison sentence below that calculated under federal sentencing guidelines based upon Petitioner’s substantial assistance.  Jt. Stip.; P. Exs. 1-2; P. Br. at 3-4; P. Reply at 3-5.  Even though I accept the asserted facts as true, I cannot infer that Petitioner’s cooperation resulted in the conviction of his co-conspirators or that additional cases were investigated due to Petitioner’s cooperation. 

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The regulation is very specific, providing that a mitigating factor exists only if cooperation with federal or state officials “resulted in” one of the results specified by the regulation.  42 C.F.R. § 1001.102(c)(3).  The results specified are: (1) others being convicted or excluded from Medicare; (2) additional cases being investigated or reports issued identifying program vulnerabilities or weaknesses; or (3) the imposition of a civil money penalty pursuant to 42 C.F.R. pt. 1003.  In addressing the second result under 42 C.F.R. § 1001.102(c)(3)(ii), the IG responded to a comment that the IG expected that the mitigating factor would be found only where law enforcement officials open a new case investigation or issue the report specified.  63 Fed. Reg. 46,676, 46,681 (Sep. 2, 1998).  The IG response indicates that the IG intended to find a mitigating factor under 42 C.F.R. § 1001.102(c)(3) when one of the specified results occurred due to the cooperation, not when the cooperation merely aided the investigation, prosecution, conviction, or the imposition of a civil money penalty.  In Rehabilitation Ctr. at Hollywood Hills, LLC, DAB No. 3001 at 14 n.8 (2020), the Board commented that “[t]he I.G. has indicated that mitigation based on cooperation contemplates an actual, positive outcome; the act of ‘cooperating’ is not itself sufficient.”  The Board similarly applied 42 C.F.R. § 1001.102(c)(3)(ii) in Stacy R. Gale, DAB No. 1941 at 7 (2004), concluding that 42 C.F.R. § 1001.102(c)(3) required the result specified by the regulation not mere cooperation with law enforcement. 

I apply the interpretation of 42 C.F.R. § 1001.102(c)(3) that one of the results listed in that regulation must have occurred for there to be a mitigating factor for the IG to consider.  I accept as true for purposes of summary judgment that Petitioner cooperated, his cooperation was recognized by the United States Attorney and the district court resulting in a lesser period of incarceration.  I accept that information Petitioner provided to law enforcement was thorough and credible.  I accept that Petitioner was available to testify against his co-conspirators and even that the threat of Petitioner’s availability to testify encouraged their guilty pleas.  There are no genuine disputes of material fact that preclude application of summary judgment.  However, I cannot infer that Petitioner’s cooperation resulted in the conviction of his co-conspirators or that his cooperation resulted in the opening of new investigations by law enforcement.  I cannot reasonably infer for Petitioner that any of his cooperation resulted in one of the results required by 42 C.F.R. § 1001.102(c)(3)(i) or (ii).  Petitioner’s arguments that his cooperation should have been considered by the IG as a mitigating factor fail as a matter of law. 

7. 7. Exclusion for nine years is not unreasonable in this case.

The Secretary requires by regulation that the ALJ determine whether the length of exclusion imposed is “unreasonable,” if a period greater than the minimum period is imposed by the IG.  42 C.F.R. § 1001.2007(a)(1)-(2).  The Board has interpreted the regulations as significantly limiting the scope of ALJ review.  The regulation states that the ALJ must determine whether the length of exclusion imposed is “unreasonable,” 

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without definition of what is unreasonable or direction for how to determine whether a period of exclusion is unreasonable.  42 C.F.R. § 1001.2007(a)(1)(ii).  The drafters of the regulation explained that the intent of the regulation is to ensure that if the IG’s proposed period of exclusion is “within a reasonable range based on demonstrated criteria, the ALJ has no authority” to change the period of exclusion.  57 Fed. Reg. 3298, 3321 (Jan. 29, 1992).  Again, the drafters provided no explanation of what are “demonstrated criteria.” 

The Board has determined 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 determine whether the period of exclusion imposed by the IG falls within a “reasonable range.”  Edwin L. Fuentes, DAB No. 2988 at 7-10 (2020); Juan de Leon, Jr., DAB No. 2533 at 4-5; Wilder, DAB No. 2416 at 8; 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.  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 concluded 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 decide 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 reasoned that when aggravating factors are considered by the IG as a reason to extend a period of exclusion, some part of the extended period of exclusion should be attributable to each aggravating factor considered.  Because in Katz, the ALJ found one aggravating factor considered by the IG was not proved before the ALJ, the Board concluded that the period of exclusion imposed by the IG was no longer in the reasonable range and reassessed the period of exclusion.  The Board had the opportunity to define the term “reasonable range” and describe how to weigh aggravating and mitigating factors but did not do so.  The Board engaged in weighing the remaining aggravating factors in Katz but did not explain the weighing process in any detail or cite any authority for the process it employed.  Id. at 4-8.  The Board, relying upon a prior Board decision and the preamble to the regulations, stated in a footnote that:  

• [A] “reasonable range” refers to a range of exclusion periods that is more limited than the full range authorized by the statute [five years to permanent exclusion under section 1128(a) of the Act] and that is tied to the circumstances of the individual case.  If the ALJ determines that the length of the exclusion imposed by the I.G. is within this range under the circumstance as found by the ALJ, he may not change it even if he believes that another exclusion period is more reasonable. 

Id. at 5 n.4.  The Board’s decision in Katz reflects its determination that it is the aggravating and mitigating factors that the Board and an ALJ consider in determining whether a period of exclusion is unreasonable.  The Board’s decision also indicates that the facts and circumstances related to the aggravating factors are what are weighed when determining how each aggravating and mitigating factor affects whether a period of exclusion is unreasonable, i.e., outside the reasonable range.  Clearly, determining a reasonable range is not a simple process of counting the aggravating and mitigating factors, and considerable discretion remains for the Board and the ALJ to engage in the weighing process to decide what is unreasonable, although that weighing is significantly limited by the language of 42 C.F.R. § 1001.2007(a)(1)(ii) and the Board’s prior decisions on how the regulation is to be implemented.  The IG determination of the weight given aggravating and mitigating factors is clearly entitled to receive some deference due to the regulatory standard for review adopted by notice and comment rulemaking; by regulation, the issue is whether the period of exclusion is unreasonable.  42 C.F.R. § 1001.2007(a)(1)(ii).  No further deference is required by the Act or regulations or recognized by the Board.  In this case, however, it has not been shown that the IG considered an aggravating factor that did not exist or failed to consider a mitigating factor that did exist.  Therefore, I have no discretion to reassess the period of exclusion under current Board decisions. 

Based on my de novo review, I conclude that a basis for exclusion exists and that the undisputed evidence establishes three aggravating factors and no mitigating factor.  The IG in selecting a nine-year exclusion, did not consider an aggravating factor that did not exist or fail to consider a mitigating factor that existed.  IG Ex. 1.  No basis exists for me to reassess the period of exclusion in this case.  I conclude that a period of exclusion of nine years is within a reasonable range and not unreasonable considering the existence of three aggravating factors and no mitigating factor. 

Exclusion is effective 20 days from the date of the IG’s notice of exclusion to Petitioner.  42 C.F.R. § 1001.2002(b). 

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III.  Conclusion

For the foregoing reasons, Petitioner is excluded from participation in Medicare, Medicaid, and all federal health care programs for nine years effective May 20, 2025.