Mark Andrew Mongillo, DAB CR6949 (2026)

DECISION

Respondent, the Inspector General of the United States Department of Health and Human Services (the IG), excluded Petitioner, Mark Mongillo, from participation in Medicare, Medicaid, and all other federal health care programs for nine years based on his criminal conviction for an offense related to the unlawful manufacture, distribution, prescription, or dispensing of a controlled substance.  Petitioner challenges the length of his exclusion.  For the reasons stated below, I modify the period of exclusion to eight years. 

I.  Background and Procedural History

By letter dated May 30, 2025, the IG notified Petitioner of his exclusion from participation in Medicare, Medicaid, and all other federal health care programs under section 1128(a)(4) of the Social Security Act (Act) for a period of 11 years due to his conviction for a criminal offense related to the unlawful manufacture, distribution, prescription, or dispensing of a controlled substance.  IG Ex. 1.  The IG relied on two aggravating factors to extend the minimum term of Petitioner’s exclusion to 11 years.  Id. at 2. 

Petitioner timely requested a hearing before an administrative law judge (ALJ), resulting in my designation to hear and decide this case.  On August 12, 2025, I held a pre-hearing

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telephone conference, the substance of which is summarized in my August 14, 2025 Order Summarizing Pre-hearing Conference and Setting Briefing Schedule (Summary Order).  Among other things, I directed the parties to file pre-hearing briefs articulating their respective arguments as well as identifying witnesses and exhibits in support thereof.  Summary Order at 5-6. 

On September 11, 2025, the IG issued an amended notice of exclusion to Petitioner reducing his minimum period of exclusion from 11 to nine years because of his cooperation with federal or state officials.  On September 12, 2025, the IG filed a brief (IG Br.) and eight proposed exhibits (IG Exs. 1-8).  Petitioner timely filed a brief (P. Br.) with five proposed exhibits (P. Exs. 1-5).  The IG subsequently filed a reply brief. 

II.  Admission of Exhibits and Decision on the Record

Absent objection I admit into evidence IG Exhibits 1 through 8 and Petitioner Exhibits 1 through 5. 

Neither party proposed witnesses nor believes a hearing to be necessary.  IG Br. at 5-6; P. Br. at 3.  I therefore decide this matter on the record before me.  See Civ. Remedies Div. P. § 19(d). 

III.  Issues

Petitioner concedes the IG has a basis to exclude him from participation in federal health care programs under section 1128(a)(4) of the Act.  P. Br. at 1-2.  The only issue in this case is whether the nine-year minimum period of exclusion selected by the IG is reasonable.  42 C.F.R. § 1001.2007. 

IV.  Applicable Law

Section 1128(f) of the Act (42 U.S.C. § 1320a-7(f)) provides Petitioner with rights to a hearing before an ALJ and judicial review of the final action of the Secretary of Health and Human Services (Secretary).  The right to a hearing before an ALJ is set forth in 42 C.F.R. §§ 1001.2007(a) and 1005.2, while the rights of both the sanctioned party and the IG to participate in a hearing are specified at 42 C.F.R. § 1005.3. 

The Act requires the Secretary to exclude from participation in federal health care programs “[a]ny individual or entity that has been convicted for an offense which occurred after August 21, 1996, under Federal or State law, of a criminal offense consisting of a felony relating to the unlawful manufacture, distribution, prescription, or dispensing of a controlled substance.”  42 U.S.C. § 1320a-7(a)(4); see also 42 C.F.R. § 1001.101(d). 

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The Act defines an individual to be “convicted” of a criminal offense when:  (1) a judgment of conviction has been entered against him or her in a federal, state, or local court, whether an appeal is pending or the record of the conviction is expunged; (2) there is a finding of guilt by a court; (3) a plea of guilty or nolo contendere is accepted by a court; or (4) the individual has entered into any arrangement or program where judgment of conviction is withheld.  42 U.S.C. § 1320a-7(i); 42 C.F.R. § 1001.2.  Exclusion under this provision of the Act is mandatory and does not distinguish between misdemeanor and felony convictions.  42 U.S.C. § 1320a-7(a)(2).  Excluded parties seeking to challenge their exclusion may not collaterally attack the conviction upon which exclusion is based.  42 C.F.R. § 1001.2007(d). 

Exclusions imposed under section 1128(a) of the Act must last a minimum of five years.  42 U.S.C. § 1320a-7(c)(3)(B).  Exclusion is effective 20 days from the date the IG issues the notice of exclusion.  42 C.F.R. § 1001.2002(b).  The IG may elect to extend the period of exclusion based on the presence of certain aggravating factors.  42 C.F.R. § 1001.102(b).  If the IG has applied aggravating factors to increase the exclusion period beyond five years, he must consider certain mitigating factors recognized by the regulations as a basis to reduce the period of exclusion.  42 C.F.R. § 1001.102(c).  The IG’s determination of the length of exclusion enjoys deference unless it is unreasonable.  42 C.F.R. § 1001.2007(a)(1)(ii). 

The standard of proof is a preponderance of the evidence.  42 C.F.R. § 1001.2007(c).  Petitioner bears the burden of proof and the burden of persuasion on any affirmative defenses or mitigating factors; the IG bears the burden on all other issues.  42 C.F.R. § 1005.15(b). 

V.  Jurisdiction

I have jurisdiction to hear and decide this case.  See 42 C.F.R. §§ 1001.2007(a)(1)-(2), 1005.2(a); see also 42 U.S.C. § 1320a-7(f)(1). 

VI.  Findings of Fact, Conclusions of Law, and Analysis

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

A.  The IG has established a basis for Petitioner’s exclusion pursuant to section 1128(a)(4) of the Act. 

Section 1128(a)(4) of the Act requires the Secretary to exclude from participation in Medicare, Medicaid, and all federal health care programs any individual convicted of a felony criminal offense occurring after August 21, 1996 “relating to the unlawful manufacture, distribution, prescription, or dispensing of a controlled substance.” 

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42 U.S.C. § 1320a-7(a)(4); 42 C.F.R. § 1001.101(d).  The IG has established these elements by a preponderance of the evidence. 

1.  Relevant Facts

Petitioner was licensed as a pharmacist by the state of New York.  See IG Ex. 6.  On January 19, 2021, Special Agent Ryan Phelan of the Drug Enforcement Administration filed an affidavit in the District Court for the Northern District of New York seeking the issuance of a criminal complaint.  IG Ex. 2.  Special Agent Phelan averred that same day, police officers in Johnson City, New York stopped a car driven by Petitioner after he committed a traffic violation.  Id. at 3.  In the course of this traffic stop, the officers conducted a search and found Petitioner in possession of a loaded handgun defaced to obscure its serial number, a glass pipe, three bags containing approximately 642 grams of what they field-tested to be methamphetamine, a scale, and $2,800 in cash in the car’s sunglass holder.  Id. at 4.  After searching Petitioner, the officers discovered an additional $1,650 taped to his groin.  Id. 

On July 22, 2021, the Acting U.S. Attorney for the Northern District of New York charged Petitioner by information with one felony count of possession of a controlled substance with intent to distribute in violation of 21 U.S.C. § 841(a)(1) and one felony count of possession of a firearm in furtherance of a drug-trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A)(i).  IG Ex. 3 at 1. 

That same day the government and Petitioner filed a plea agreement executed in May 2021.  IG Ex. 4.  Petitioner agreed to plead to the two counts of the information against him.  Id. at 1.  He admitted possessing approximately 642 grams of methamphetamine, a loaded handgun defaced to remove its serial numbers, approximately $4,450 in cash, and drug paraphernalia.  Id. at 4.  Petitioner also admitted he intended to distribute the methamphetamine to others and possessed the firearm to further the trafficking of drugs.  Id. 

On August 26, 2022, the District Court accepted Petitioner’s plea and adjudicated him guilty of the two counts of the information.  IG Ex. 5.  The Court sentenced Petitioner to 63 months’ incarceration.  Id. at 2. 

New York’s Board of Pharmacy subsequently charged Petitioner with professional misconduct based on the circumstances of his conviction.  IG Ex. 6 at 4-5.  In March 2023, Petitioner sought to surrender his licensed to practice pharmacy, admitting guilt to the charge of professional misconduct.  Id. at 2, 6.  The Board of Pharmacy accepted Petitioner’s license surrender on May 12, 2023.  Id. at 6. 

On October 30, 2023, New York’s Office of the Medicaid Inspector General (OMIG) notified Petitioner of his exclusion from participation in the New York Medicaid program

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based on his admission of guilt to the charge of committing professional misconduct.  IG Ex. 7 at 1. 

2.  Petitioner was convicted of a criminal offense within the meaning of section 1128(a)(4) for which exclusion was required. 

Petitioner concedes his conviction of a felony committed after August 21, 1996.  P. Br. at 1.  He further concedes his offense of conviction related to the unlawful manufacture, distribution, prescription, or dispensing of a controlled substance, and that his exclusion is thus required.  Id.  The IG has established these elements necessary for exclusion pursuant to 42 U.S.C. § 1320a-7(a)(4). 

B.  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)(4), Petitioner must be excluded for a minimum period of five years.  42 U.S.C. § 1320a-7(c)(3)(B); 42 C.F.R. §§ 1001.102(a), 1001.2007(a)(2).  Neither I nor the IG may reduce his period of exclusion below five years. 

C.  The IG has established two aggravating factors exist to support increasing Petitioner’s exclusion period beyond the five-year statutory minimum. 

By regulation, the IG may consider certain aggravating factors to justify increasing a period of exclusion beyond the five-year minimum.  42 C.F.R. § 1001.102(b).  Here, the IG applied two aggravating factors to increase Petitioner’s minimum exclusion period to 11 years:  (1) the sentence imposed by the District Court included incarceration; and (2) Petitioner was the subject of another adverse action by a state board based on the same set of circumstances that served as the basis for the exclusion.  IG Ex. 1 at 2; 42 C.F.R. §§ 1001.102(b)(5), (9).  Petitioner does not dispute these aggravating factors or their application to increase his exclusion period.  P. Br. at 1-2.  The IG has established a basis to increase Petitioner’s exclusion period based on two aggravating factors. 

D.  Petitioner has established two mitigating factors recognized by the Secretary’s regulations. 

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

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In his hearing request, Petitioner argued his minimum period of exclusion should be reduced to eight years because of a mental health condition and his cooperation with state and federal officials.  P. Req. for Hearing at 1.  During the pre-hearing conference I convened in this matter, Petitioner asserted evidence of his cooperation existed but remained under seal before the District Court.  See Summary Order at 4 n.1.  Because he was incarcerated at the time, I advised Petitioner to contact his criminal defense attorney to procure this evidence.  Id.  Counsel for the IG also indicated she would determine whether such evidence existed and could be obtained.  Id. 

The IG subsequently reduced Petitioner’s 11-year exclusion to 9 years.  In his brief, the IG states he “was able to confirm that Petitioner cooperated in accordance with the mitigating factor but is unable to offer evidence in support.”  IG Br. at 5.  The IG explained only that Petitioner’s cooperation resulted in “additional cases being investigated.”  Id. 

The parties therefore agree Petitioner’s cooperation satisfied the regulatory criteria to be considered a mitigating factor.  However, Petitioner maintains he is entitled to application of another mitigating factor based on his mental health condition.  P. Br. at 2-3.  He explains his criminal activity “stemmed from a Substance Use Disorder that was perpetuated by worsening mental health status with severe depression.  Id. at 7.  Petitioner cites his sentencing memorandum submitted to the District Court to corroborate his claim and points to the Court’s decision to sentence him to a below-Guidelines sentence and its requirement to continue mental health and substance abuse treatment as evidence the court found his culpability reduced because of his mental health or substance abuse condition.  Id. at 3. 

The IG responds that Petitioner has not established by a preponderance that the District Court found his mental health condition reduced his criminal culpability.  IG Reply at 1-2.  The IG points out there is no evidence of the Court’s reasoning and that its recommendation that Petitioner participate in a treatment program rather than requiring him to do so does not support Petitioner’s claim.  Id. at 2. 

It is true that Petitioner has not submitted a sentencing transcript in this matter, so I do not have access to the District Court’s articulated reasoning for the sentence imposed.  But I do not find this dispositive, particularly for a pro se petitioner who was incarcerated and thus had limited means to obtain records.  Moreover, the Board has observed that a sentencing court does not need to make an explicit finding of reduced culpability based on a mental or physical condition that existed at the time of an offense; I can instead infer such a finding from the evidence generated at the criminal proceeding.  Mohamad Ahmad Bazzi, DAB No. 2917 (2018) at 11, citing Russell Mark Posner, DAB No. 2033, at 9 (2006).  Petitioner’s argument that I do so here is persuasive. 

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First, the District Court imposed a sentence of 63 months’ incarceration despite a Guidelines range of 70 to 87 months.  IG Ex. 5 at 2.  As Petitioner’s defense attorney argued, the District Court could have imposed a mandatory 120-month sentence based on the amount of methamphetamine in Petitioner’s possession as well as a 60-month consecutive term for his gun offense.  P. Ex. 3 at 3.  That it did not do so suggests strongly that the Court was swayed by mitigating circumstances.  Second, the record show Petitioner’s primary arguments at sentencing concerned his reduced culpability because of his mental health and substance abuse issues.  His defense attorney highlighted his unusual path to criminality and cited his drug addiction and mental illness as key factors behind his downfall.  Id. at 5-6.  Strikingly, she made no mention of Petitioner’s cooperation with the government.  Nor did the government indicate cooperation as a basis for a downward departure in the plea agreement.  See IG Ex. 4 at 4-5 (setting forth the government’s agreement to seek a two to three-level downward departure for acceptance of responsibility and assisting in the investigation of his own misconduct, but making no mention of cooperation to investigate others). 

Therefore, because the Guidelines calculation already accounted Petitioner’s minimal criminal history, it is reasonable to infer that the District Court’s decision to depart downwards from the Guidelines was based in large part on its consideration of Petitioner’s mental health and substance abuse conditions that affected him during the commission of his crime and thus his reduced culpability. 

The IG’s claim that it would be improper to infer the existence of significant mental health condition where the District Court merely recommended drug and mental health treatment is somewhat inaccurate.  IG Reply at 2.  It is true the Court couched its directive that Petitioner “participate in substance abuse and mental health treatment while incarcerated” as a recommendation.  P. Ex. 5 at 2.  But that is because the Bureau of Prisons has sole authority over inmates during their imprisonment, including determinations concerning the treatment a prisoner will receive.  See 18 U.S.C. § 3621(b).  Congress requires the Bureau of Prisons to provide substance abuse treatment, but the Bureau determines if a prisoner has a treatable substance addiction or abuse condition, not the sentencing court.  18 U.S.C. § 3621(b)(5).  The District Court could not have legally required such treatment while Petitioner was incarcerated. 

But the Court does enjoy sole authority over the terms governing Petitioner’s supervised release after incarceration.  There, the Court did not merely impose the “Standard Conditions of Supervision” to which every convicted individual must conform.  It added “Special Conditions of Supervision” for Petitioner as well, namely requiring him to participate in a substance abuse program that, subject to Court approval, could include inpatient treatment.  P. Ex. 5 at 5.  It also required Petitioner to participate in mental health treatment, which again could possibly require inpatient treatment and otherwise required the U.S. Probation Office to approve any treatment plan.  Id. 

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Contrary to the IG’s claim, it is clear the District Court thought Petitioner’s mental health and substance abuse issues were sufficiently significant to require considerable oversight after his release from incarceration.  Based on the totality of the evidence submitted by Petitioner, I find he has established by a preponderance that the District Court found his culpability reduced as a result of mental health and substance abuse conditions present at the time of the commission of his crimes. 

E.  The 9-year exclusion period selected by the IG does not account for one of two mitigating factors and is therefore unreasonable.  I impose a 8-year exclusion period. 

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

• We do not intend for the aggravating and mitigating factors to have specific values; rather, these factors must be evaluated based on the circumstances of a particular case.  For example, in one case many aggravating factors may exist, but the subject’s cooperation with the OIG may be so significant that it is appropriate to give that one mitigating factor more weight than all of the aggravating.  Similarly, many mitigating factors may exist in a case, but the acts could have had such a significant physical impact on program beneficiaries that the existence of that one aggravating factor must be given more weight than all of the mitigating.  The weight accorded to each mitigating and aggravating factor cannot be established according to a rigid formula, but must be determined in the context of the particular case at issue. 

57 Fed. Reg. 3298 at 3314-15. 

Here, I have considered the weight of the aggravating and mitigating factors to assess the reasonableness of the period of time Petitioner should be excluded from participation in federal health care programs.  The seriousness of Petitioner’s criminal offense cannot be understated.  Although a licensed pharmacist, he was discovered driving with over 600 grams of methamphetamine, over $4,000 in cash, a scale, and a loaded weapon with its serial number removed.  IG Ex. 2 at 3-4.  These items do not suggest a casual or even devoted user of drugs.  They are the hallmarks of a dealer, and an enterprising one at that.  It is impossible to quantify the harm Petitioner likely did to others in his own community

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by dealing highly addictive and illegal controlled substances despite being a licensed health care professional. 

The seriousness of Petitioner’s offense is ultimately reflected in the significant sentence of incarceration imposed by the District Court.  While the sentence could have been much higher, Petitioner still received over five years’ incarceration based on the quantity of drugs in his possession and the loaded weapon he carried.  The extensive period of incarceration imposed by the District Court demonstrates the severity of Petitioner’s offense, as well as his level of untrustworthiness.  Eugene Goldman, M.D., a/k/a Yevgeniy Goldman, M.D., DAB No. 2635 at 5 (2015); Gracia L. Mayard, DAB No. 2767 at 7 (2017) (characterizing a 54-month sentence of incarceration as a “substantial prison term”). 

I have also considered the other aggravating factor established by the IG, namely that New York’s Board of Pharmacy and its Medicaid program promptly took action against Petitioner based upon his criminal conduct.  IG Exs. 6, 7.  Both agencies immediately removed Petitioner from being able to advise patients, access controlled substances, or bill the state for his services.  Their actions highlight the seriousness of Petitioner’s offense.

I have also considered the weight of Petitioner’s cooperation.  While it was Petitioner’s burden to establish this factor, he did not do so.  But IG counsel took her obligation to do justice seriously and discovered evidence of such cooperation, though for unknown reasons that evidence was not made part of the record or even described in the IG’s brief.  As such, I have no basis to assess whether a two-year reduction in the exclusion period reflects the significance of whatever cooperation Petitioner provided.  Still, the IG had no obligation to obtain evidence of Petitioner’s cooperation.  See 42 C.F.R. § 1005.15(b)(1).  Absent any evidence proffered by Petitioner to support a different finding, a two-year reduction is eminently reasonable. 

Finally, I must also consider the fact that the IG did not consider a second mitigating factor, namely the mental health and substance abuse issues during the commission of Petitioner’s crime that the District Court considered to find him less culpable.  A reduction in the exclusion period is appropriate.  Petitioner’s mental health and substance abuse issues led him to unfortunate circumstances that ruined his life.  But the significance of these mitigating factors simply does not balance out the reckless and dangerous choices Petitioner made.  Pharmacists are trusted to provide medical advice and dispense prescription medication to patients.  Petitioner brought a scale and a weapon to supply clients with methamphetamine.  There are doubtless other unfortunates whose mental health issues led to drug addiction, but most do not become armed dealers.  The sheer criminality of Petitioner’s conduct evidences a lack of judgment and untrustworthiness that cannot be understated.  The District Court gave Petitioner’s mental health and substance abuse issues significant weight, but it still imposed a serious

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sentence of incarceration exceeding five years.  In light of these factors, I find it reasonable to reduce Petitioner’s minimum period of exclusion to eight years, the period of time he argued would reasonably reflect the seriousness of his offense in his request for hearing.  P. Req. for Hearing at 2. 

VII.  Conclusion

The IG properly excluded Petitioner from participating in Medicare, Medicaid, and other federal health care programs.  The IG established by preponderance of the evidence two aggravating factors it relied upon to determine a period of exclusion.  He also properly identified one mitigating factor and reasonably reduced Petitioner’s exclusion period.  However, the IG did not consider a second mitigating factor Petitioner has demonstrated by a preponderance of the evidence.  Having carefully considered the aggravating and mitigating factors, I modify Petitioner’s minimum period of exclusion to 8 years, effective 20 days from the date of the notice of exclusion issued to him by the IG.