Jorge C. Zamora-Quezada, MD, DAB CR6985 (2026)

DECISION

Petitioner, Jorge C. Zamora-Quezada, MD, is excluded from participating in Medicare, Medicaid, and all federal health care programs pursuant to sections 1128(a)(1) and (3) of the Social Security Act (Act) (42 U.S.C. § 1320a-7(a)(1), (3)), effective October 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 45 years, for a total minimum exclusion of 50 years,1 is not unreasonable based on the presence of six aggravating factors and the absence of any mitigating factors. 

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I.  Background

The Inspector General of the United States Department of Health and Human Services (IG) notified Petitioner by letter dated September 30, 2025, that he was excluded from participation in Medicare, Medicaid, and all federal health care programs for 50 years.  The IG cited section 1128(a)(1) and (3) of the Act as the authority for Petitioner’s exclusion based on his conviction in the United States District Court, Southern District of Texas (district court).  The IG notified Petitioner that his district court conviction was a basis for exclusion pursuant to section 1128(a)(1) of the Act because the criminal offense of which he was convicted was related to the delivery of an item or service under Medicare or a state health care program.  The IG also notified Petitioner that his district court conviction was a basis for exclusion pursuant to section 1128(a)(3) of the Act.  Section 1128(a)(3) of the Act requires exclusion if one is convicted under federal or state law of a felony criminal offense that was committed after August 21, 1996, and was 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 or Medicaid operated or funded by a federal, state, or  local government agency.  IG Exhibit (IG Ex.) 1 at 1. 

Petitioner timely filed a request for hearing (RFH) by letter dated November 17, 2025 that was postmarked November 18, 2024.  On January 5, 2026, the case was assigned to me to hear and decide.  Petitioner was informed by letter dated January 5, 2026, of my assignment and that I had scheduled a prehearing conference on February 10, 2026.  Departmental Appeals Board Electronic Filing System (DAB E-File) #2.  In a letter dated January 16, 2026, Petitioner acknowledged receipt of my January 5, 2026 letter.  He requested waiver of the requirement to use DAB E-File and requested that his case be continued until 30 to 60 days after his release from prison on or about June 19, 2026.  DAB E-File #4. 

I convened a telephone prehearing conference on February 10, 2026, the substance of which is memorialized in my Prehearing Conference Order and Schedule for Filing Briefs and Documentary Evidence issued on February 11, 2026 (Prehearing Order).  Petitioner failed to appear for the conference, and it proceeded in his absence.  Petitioner’s request to continue proceedings until 30 to 60 days after his release from prison was denied.  To avoid any prejudice to Petitioner, an extended schedule for prehearing case development was adopted.  DAB E-File #6.  On April 29, 2026, Petitioner requested an extension of the prehearing schedule.  DAB E-File #8.  The requested extension was granted on May 4, 2026.  DAB E-File ##10, 11. 

On April 13, 2026, the IG filed a motion for summary judgment with supporting brief, and IG Exs. 1 through 8.  On July 18, 2026, Petitioner filed a response in opposition to the IG’s motion for summary judgment (P. Br.) and Petitioner’s exhibits (P. Exs.)

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1 through 3.  DAB E-File #12a.  The IG filed a reply brief on August 4, 2026 (IG Reply).  Petitioner filed a reply brief on August 20, 2026 (P. Reply). 

The parties have not objected to my consideration of the offered exhibits.  IG Exs. 1 through 8 and P. Exs. 1 through 3 are admitted and considered as evidence. 

II.  Discussion

A.  Applicable Law

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

Pursuant to section 1128(a)(1) of the Act, the Secretary must exclude from participation in any federal health care program any individual convicted under federal or state law of, among other things, a criminal offense related to the delivery of an item or service under Medicare or a state health care program.  Act § 1128(a)(1).  The Secretary has promulgated regulations implementing this provision of the Act.  42 C.F.R. § 1001.101(a). 

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. 

Act § 1128(a)(3); 42 C.F.R. § 1001.101(c). 

Pursuant to section 1128(i) of the Act (42 U.S.C. § 1320a-7(i)), an individual is convicted of a criminal offense when:  (1) a judgment of conviction has been entered against them in a federal, state, or local court whether an appeal is pending or the record of the conviction is expunged; (2) there is a finding of guilt by a court; (3) a plea of guilty or no contest is accepted by a court; or (4) the individual has entered into any arrangement or program where judgment of conviction is withheld.

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

In this proceeding, the standard of proof is a preponderance of the evidence.2  42 C.F.R. § 1001.2007(c).  Petitioner bears the burden of proof and the burden of persuasion on any affirmative defenses or mitigating factors, and the IG bears the burden on all other issues.  42 C.F.R. § 1005.15(b), (c); Prehearing Order ¶ 4.  There may be no collateral attack of the conviction that is the basis for the exclusion.  42 C.F.R. § 1001.2007(d). 

B.  Issues

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

Whether the IG has a basis for excluding an individual or entity from participating in Medicare, Medicaid, and all other federal health care programs; and

Whether the length of the exclusion is unreasonable. 

42 C.F.R. § 1001.2007(a)(1). 

The regulation does not define unreasonable or how it is to be determined.  But responding to comments during rulemaking in 1992, the IG stated: 

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The [IG’s] broad discretion is also reflected in the language of § 1001.2007(a)(2), restricting the ALJ’s authority to review the length of an exclusion imposed by the OIG.  Under that section, the ALJ’s authority is limited to reviewing whether the length is unreasonable.  So long as the amount of time chosen by the OIG is within a reasonable range, based on demonstrated criteria, the ALJ has no authority to change it under this rule. 

57 Fed. Reg. 3298, 3321 (Jan. 29, 1992).  Therefore, the drafters of the regulation apparently intended that the ALJ decide whether the period of exclusion was within a reasonable range based on demonstrated criteria.  The drafters did not define reasonable range or demonstrated criteria.  But appellate panels of the Departmental Appeals Board (Board) have given the terms meaning.  In Edwin L. Fuentes, DAB No. 2988 at 9 (2020) the Board stated that “demonstrated criteria” are the aggravating and mitigating factors specified in 42 C.F.R. § 1001.102(b) and (c).  The Board’s view on how to determine the reasonable range is discussed later in this decision

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

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

1.  Petitioner timely filed his hearing request 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.  Prehearing Order ¶ 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);

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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, 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). 

There is no genuine dispute of material fact in this case.  Petitioner does not dispute that the IG had bases to exclude him under sections 1128(a)(1) and (3) of the Act based on his conviction in the district court.  P. Br. at 4, 18, 24-26, 31, 34, 36, 51, 93; P. Reply at 1, 3.  Petitioner disputes the amount of the alleged program loss; the IG’s weighing of the aggravating and mitigating factors; and the reasonableness of the 50-year exclusion.  P. Br. at 13, 19, 24-27, 51-57, 65-74; P. Reply at 4-5.  Petitioner asserts that new evidence developed after trial raises questions about his criminal conviction and the administrative exclusion based on the conviction.  Petitioner argues he has a pending motion for post-conviction relief with the district court.  P. Br. at 14-15, 18, 23, 26-27, 58-70, 102-10 (P. Exs. 2-3); P. Reply at 5-6.  Petitioner argues that the IG failed to consider mitigating factors, such as Petitioner’s work history, distinguished medical career, scientific research and decades of service.  P. Br. at 14-15, 19, 75-88, 98-101 (P. Ex. 1); P. Reply at 6-.  Petitioner argues that a 50-year exclusion is punitive.  P. Br. at 15, 28.  Petitioner argues that due to the length of the exclusion, due process and fairness require that he be granted an oral hearing.  P. Br. at 16, 28-29, 56-57, 89-90.  Petitioner argues that there are substantial legal and factual disputes that preclude summary judgment.  P. Br. at 19. 

Petitioner’s arguments must be resolved against him as matters of law.  Petitioner concedes that he was convicted by the district court and the conviction is a basis for his exclusion pursuant to section 1128(a)(1) and (3).  The district court conviction is not subject to collateral attack before me or subject to my review. 

When the exclusion is based on the existence of a criminal conviction or a civil judgment imposing liability by Federal, State or local court, a determination by another Government agency, or any other prior determination where the facts were adjudicated and a final decision was made, the basis for the

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underlying conviction, civil judgment or determination is not reviewable and the individual or entity may not collaterally attack it either on substantive or procedural grounds in this appeal. 

42 C.F.R. § 1001.2007(d).  If Petitioner’s conviction is reversed or vacated on appeal, 42 C.F.R. § 1001.3005(a)) provides that exclusion based on that conviction will be withdrawn.  42 C.F.R. § 1001.3005(a). 

Petitioner’s argument that I consider mitigating factors in addition to those authorized by 42 C.F.R. § 1001.102(c), must be rejected as a matter of law as I am required to follow the regulations.  42 C.F.R. § 1005.4(c)(1).  Petitioner’s arguments that the IG improperly weighed aggravating and mitigating factors must also be resolved against Petitioner as a matter of law.  Petitioner’s argument that restitution ordered by the district court is not an accurate measure of program loss, is unsupported by any evidence, including no affidavit or declaration from Petitioner, from which I can draw a favorable inference for Petitioner.  Petitioner’s legal arguments that a 50-year exclusion is punitive or arbitrary and capricious and other legal arguments do not defeat summary judgment. 

Summary judgment is only defeated when there is a genuine dispute as to a material fact.  The definition of relevant evidence has two prongs.  Evidence is relevant if (a) the evidence has any tendency to make a fact more or less probable than it would be without the evidence, and (b) the fact is of consequence in determining the action.  Fed. R. Evid. 401.  Under this definition a fact that is of consequence in determining the action is a material fact.  Black’s Law Dictionary at 629 (8th ed. 2004) (material fact is “significant or essential to the issue or matter at hand.”) 

Petitioner’s argument that deciding this case on summary judgment deprives him of due process (P. Br. at 89-92) is without merit.  This decision explains that summary judgment is appropriate as there are no genuine disputes of material fact that require the taking of oral testimony to resolve.  Summary judgment is a well-accepted procedure for resolving cases such as this in which an oral hearing would provide no material evidence.  Petitioner is and has been accorded the process due him under section 1128 of the Act and 42 C.F.R. pts. 1001 and 1005. 

I conclude that summary judgment in favor of CMS on the issue of whether there is a basis for exclusion is appropriate based on Petitioner’s concession and my review of the undisputed facts related to the conviction.  I also conclude that the 50-year exclusion is not unreasonable as a matter of law.  There are no genuine issues of material related to the reasonableness of the period of exclusion and Petitioner’s legal arguments must be resolved against him. 

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

Petitioner concedes that the IG has bases to exclude him under sections 1128(a)(1) and (3) due to his conviction in the district court.  P. Br. at 4, 18, 24-26, 31, 34, 36, 51, 93; P. Reply at 1, 3. 

a.  Undisputed Facts

I advised the parties in the Prehearing Order that on summary judgment: 

[A] fact alleged in briefing and not specifically denied, may be accepted as true for purposes of a motion or cross-motion for summary judgment. 

Prehearing Order ¶ 8. 

District Court Proceedings

(1)  On May 9, 2018, Petitioner was charged in the district court by a sealed grand jury indictment with one count of conspiracy to commit health care fraud (18 U.S.C. § 1349), six counts of health care fraud (18 U.S.C. §§ 2, 1347), and one count of conspiracy to commit money laundering (18 U.S.C. §§ 1956, 1957).  IG Ex. 8 at 6-23.

(2)  On August 14, 2018, a superseding grand jury indictment was filed in the district court.  The superseding indictment charged Petitioner with one count of conspiracy to commit health care fraud (18 U.S.C. § 1349), eight counts of health care fraud (18 U.S.C. §§ 2, 1347), one count of conspiracy to commit money laundering (18 U.S.C. §§ 1956, 1957), and one count of conspiracy to obstruct justice (18 U.S.C. § 1512(c)(2)).  IG Ex. 3.

(3)  On January 15, 2020, the district court jury found Petitioner guilty of the following charges from the superseding indictment:  Count 1, conspiracy to commit health care fraud; Counts 2, 3, 4, 6, 7, 8, 9, health care fraud, and Count 11, conspiracy to obstruct justice.  IG Ex. 8 at 4-5.

(a)  The conspiracy to commit healthcare fraud (Count 1) of which Petitioner was convicted alleged that from 2000 to about 2018, Petitioner conspired to defraud health care programs, including Medicare, Medicaid, Tricare, and Blue Cross Blue Shield.  The purpose of the conspiracy was to obtain money from the health care programs through false and fraudulent claims.  The false health care claims involved falsely diagnosing vulnerable patients, including the young, elderly, and

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disabled with diseases such a rheumatoid arthritis and other auto-immune diseases resulting in substantial revenue to Petitioner.  Petitioner and his co-conspirators administered infusions and/or injections containing chemotherapy and other toxic medications to the patients, including those falsely diagnosed.  Petitioner and his co-conspirators conducted fraudulent, repetitive, and excessive medical procedures to increase revenue.  Petitioner and a co-conspirator directed staff to increase the number of patient office visits and medical procedures to generate profits and pay salaries.  Patients who questioned Petitioner’s treatment of them were discharged from Petitioner’s practices.  Even after the Texas Medical Boar publicly reprimanded Petitioner for conducting numerous tests on patients, treating patients with toxic drugs, and diagnosing patients with rheumatoid arthritis without legitimate basis, Petitioner and co-conspirators continued their false and fraudulent practices.  Patient records were concealed from other rheumatologists and physicians when the records were requested.  Petitioner and his co-conspirators concealed thousands of patient medical records from Medicare by stashing them in an unsecured and dilapidated barn.  Patient records were falsified to create the false appearance that certain procedures were medically necessary and that certain procedures had been performed.  Investigations were obstructed by the creation of false and fictitious records.  Petitioner and his co-conspirators submitted or caused the submission of false and fraudulent claims to the health care programs for services that did not comply with the programs’ requirements for reimbursement resulting in the payment of millions of dollars into various corporate and personal bank accounts controlled by Petitioner and a co-conspirator.  Proceeds from the conspiracy were used to purchase private jets, luxury vehicles, luxury clothing, and real estate.  The conspiracy resulted in $240 million in claims to be submitted to health care benefit programs, with Petitioner receiving approximately $50 million.  IG Ex. 3 at 5-9.

(b)  The charges of health care fraud of which Petitioner was convicted (Counts 2-4 and 6-9) alleged that the fraud occurred from about 2000 to about 2018.  Petitioner was convicted of transmitting fraudulent claims to Medicare, Medicaid, and Tricare for specific patients in an amount totaling approximately $2,250.  IG Ex. 3 at 10-11.

(c)  Petitioner was also convicted of conspiracy to obstruct justice (Count 11) from about 2017 through in or about 2018.  The acts committed were manufacturing false and fictitious medical records and other documents, concealing the non-existence of medical records, and the submitting false and fictitious medical records and other documents to the federal grand jury in response grand jury subpoena.  IG Ex. 3 at 16-18.

(4)  On May 21, 2025, the district court imposed judgment based on the jury’s findings of guilt.  IG Ex. 2 at 1.  The district court sentenced Petitioner to be imprisoned for 120

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months for each count of which he was convicted to run concurrently.  Petitioner was subject supervised release for a total of three years upon release from prison.  IG Ex. 2 at 3-4.  Petitioner was ordered to pay total restitution of $28,245,454 – $20,311,775 to Medicare, $6,412174 to Medicaid, $615,963 to Tricare, and $905,542 to Blue Cross & Blue Shield.  IG Ex. 2 at 5. 

(5)  Petitioner placed in evidence a copy of his district court motion to vacate, set aside, or correct the sentence under 28 U.S.C. § 2255 dated May 19, 2026 (§ 2255 Motion).  P. Ex. 2 (P. Br. at 102-09).  He also placed in evidence an order of the district court filed July 6, 2026, ordering that the government respond to Petitioner’s motion within 45 days, which would have been August 20, 2026.  Petitioner has provided no update on the status of his motion.  I draw a favorable inference for Petitioner that the motion is still before the district court for ruling.  I cannot speculate how the district court might rule on the motion and I have no evidence whether the government opposed the motion. 

Other Adverse Actions

(6)  On November 4, 2009, Petitioner agreed to a consent order issued by the Texas Medical Board pursuant to which he received a public reprimand; agreed, inter alia, to monitoring and education; and agreed to pay an administrative penalty of $30,000.  The Texas Medical Board alleged that Petitioner, who practiced rheumatology and was board certified in rheumatology and internal medicine, improperly diagnosed, ordered unjustified testing, failed to adequately document medical records, and incorrectly treated 40 patients for osteoarthritis and rheumatoid arthritis from about 1999 through 2007.  Petitioner did not admit or deny the allegation but agreed to the consent order to avoid further investigation, and the expense and inconvenience of litigation.  IG Ex. 4. 

(7)  On April 21, 2010, Petitioner entered into a consent agreement with the Arizona Medical Board pursuant to which he was issued a letter of reprimand.  The Arizona Medical Board action was based on the 2009 reprimand issued by the Texas Medical Board.  IG Ex. 5. 

(8)  On July 13, 2020, the Inspector General of the Texas Health & Human Service Commission notified Petitioner that he was excluded from participating in Texas Medicaid effective January 15, 2020, the date Petitioner was found guilty by the district court jury, for 10 years.  The basis for the exclusion was Petitioner conviction in the district court.  IG Ex. 8. 

(9)  On October 7, 2020, the Texas Medical Board suspended Petitioner’s Texas medical license based on his district court conviction on January 15, 2020.   IG Ex. 7. 

(10)  On September 26, 2024, the Commonwealth of Massachusetts Board of Registration in Medicine (Massachusetts Board), issued a final decision revoking

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Petitioner’s right to renew his license to practice medicine in Massachusetts.  The revocation was based on Petitioner filing an application to renew his Massachusetts license without disclosing an adverse judgment in a sexual harassment, hostile work environment, and retaliation civil case in Texas, and the adverse actions against his medical licenses in Texas and Arizona described above.  The Massachusetts Board also cited as grounds for revocation Petitioner’s January 15, 2020 district court conviction and the October 7, 2020 Texas revocation of Petitioner’s medical license based on the conviction.  IG. Ex. 6. 

Other Information

(11)  Petitioner placed in evidence his resume or curriculum vitae.  The document shows Petitioner has expertise in multiple disciplines.  The earliest listed professional experience listed is an instructor in physiology and pharmacology from 1974 to 1979.  Petitioner’s experience included emergency room physician from 1986 to 2000.  Petitioner was also the founder and physician-in-chief of the Centers for Arthritis & Osteoporosis from 1998 to 2018.  Petitioner’s education listed his medical school and residency in Mexico, his residency at the University of Texas Southwestern Medical School, a clinical and research fellowship in rheumatology and immunology at Tufts University, a research fellowship at Massachusetts General Hospital, and a master’s degree in public health from Harvard University.  Petitioner states he published two dozen peer-reviewed clinical articles and abstracts.  He lists several honors and distinctions and his volunteer and community work.  P. Ex. 1; P. Br. at 98-101.  The information is accepted as true for purposes of summary judgment. 

b.  Analysis

The IG cites sections 1128(a)(1) and (3) of the Act as the basis for Petitioner’s mandatory exclusion.  Petitioner concedes that the IG had a basis to exclude him from Medicare, Medicaid, and all federal healthcare programs pursuant to section 1128(a)(1) and (3) of  the Act based on his conviction.  Petitioner states he does not challenge the existence of the conviction for purposes of the exclusion.  Rather, he challenges the duration of the exclusion. P. Br. at 18, 24, 31, 34, 36, 39, 58, 93; P. Reply at 1, 3, 6.  P. Br. at 31. 

Petitioner concedes that the issues raised by his § 2255 Motion in the district court are not at issue before me.  Rather, he argues that his district court motion shows that the IG should not rely upon the district court proceedings in determining the duration of the exclusion.  P. Br. at 32, 46, 52, 55, 60, 62, 64-65, 68, 78. 

Act §1128(a)(1)

Congress requires in section 1128(a)(1) of the Act that the Secretary exclude an individual or entity if the individual or entity is:  (1) convicted of a criminal offense

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(misdemeanor or felony); (2) the criminal offense is related to the delivery of an item or service; and (3) the delivery of the item or service is under Medicare or any state health care program such as Medicaid. 

There is no dispute that Petitioner was convicted within the meaning of section 1128(i) of the Act (42 U.S.C. § 1320a-7(i)), because he was found guilty by a jury in the district court and a judgment of conviction was entered against him in the district court.  IG Ex. 2; IG Ex. 3; IG Ex. 8 at 4-5.  Petitioner concedes that his pending § 2255 Motion in the district court does not change the fact he was convicted.  P. Br. at 32, 46, 52, 55, 60, 62, 64-65, 68, 78. 

Petitioner also does not dispute that the crimes of which he was convicted were related to the delivery of an items or services under Medicare, Medicaid, and Tricare.  The charges of which Petitioner was convicted clearly alleged conspiracy and fraud targeting Medicare, Medicaid, and Tricare with the object of obtaining payment from the three programs and others.  The charges also clearly allege that Petitioner’s offenses were perpetrated through delivery or alleged delivery of items, care, or services to beneficiaries of the three programs.  IG Ex. 2; IG Ex. 3; IG Ex. 8 at 4-5. 

Appellate Panels of the Board have long held that the statutory terms describing an offense do not control whether that offense is “related to” the delivery of a health care item or service under Medicare or a state health care program for purposes of exclusion pursuant to section 1128(a) of the Act.  See, e.g., Dewayne Franzen, DAB No. 1165 (1990) (inquiry is whether conviction is related to Medicaid fraud, not whether the petitioner was convicted of Medicaid fraud).  An ALJ must examine whether there is a “common sense connection or nexus between the offense and the delivery of an item or service under the program.”  Scott D. Augustine, DAB No. 2043 at 5-6 (2006) (citations omitted).  To determine whether there is such a nexus or common-sense connection, “evidence as to the nature of an offense may be considered,” such as the “facts upon which the conviction was predicated.”  Robert C. Hartnett, DAB No. 2740 at 7 (2016) (quoting Berton Siegel, D.O., DAB No. 1467 at 6-7 (1994)).  The bar to a petitioner collaterally attacking the conviction underlying an exclusion does not preclude review of the facts and circumstances on which the conviction was based.  An ALJ may consider extrinsic evidence to determine the events which formed the basis for the offense.  Narendra M. Patel, M.D., DAB No. 1736 (2000).  The terms “related to” and “relating to” in section 1128(a) of the Act simply mean that there must be a nexus or common-sense connection.  Friedman v. Sebelius, 686 F.3d 813, 820 (D.C. Cir. 2012) (describing the phrase “relating to” as “deliberately expansive words,” “the ordinary meaning of [which] is a broad one,” and one that is not subject to “crabbed and formalistic interpretation”) (internal quotes omitted); Quayum v. U.S. Dep’t of Health & Human Servs., 34 F.Supp.2d 141, 143 (E.D.N.Y. 1998).  The federal courts have recognized that Congress intended that even a loose connection is sufficient to trigger exclusion under section 1128(a)(2) of the Act.  Friedman, 686 F.3d 813, 820; Quayum, 34 F. Supp. 2d

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141, 143.  The undisputed facts in this case clearly establish the required connection, rational link, or nexus between Petitioner’s criminal offenses and the delivery of a health care item or service under Medicare and/or Medicaid.  W. Scott Harkonen, MD, DAB No. 2485 (2012), aff’d, Harkonen v. Sebelius, No. C 13-0071 PJH, 2013 WL 5734918 (N.D. Cal. Oct. 22, 2013). 

I conclude that the elements for mandatory exclusion under section 1128(a)(1) are satisfied in this case. 

Act § 1128(a)(3)

Although mandatory exclusion is triggered under section 1128(a)(1) of the Act and one basis for mandatory exclusion is all that is required, the IG also cites section 1128(a)(3) of the Act as the basis for mandatory exclusion. 

Petitioner does not dispute that his district court conviction requires mandatory exclusion under section 1128(a)(3) of the Act.  The elements that must be satisfied for exclusion under section 1128(a)(3) are:  (1) an individual or entity is convicted of a criminal offense under federal or state law; (2) the offense of which the individual or entity was convicted was a felony; (3) the offense of which convicted occurred after August 21, 1996 (the date of enactment of the Health Insurance Portability and Accountability Act of 1996); (4) the criminal offense was committed 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 or Medicaid, that is operated or financed by the federal, state, or a local government; and (5) the criminal offense was related to fraud, theft, embezzlement, breach of fiduciary responsibility, or other financial misconduct. 

There is no dispute that Petitioner was convicted within the meaning of section 1128(i) of the Act (42 U.S.C. § 1320a-7(i)), because he was found guilty by a jury in the district court and a judgment of conviction was entered against him in the district court.  IG Ex. 2; IG Ex. 3; IG Ex. 8 at 4-5. 

Petitioner was convicted of felonies.  Conviction for one count of conspiracy to commit health care fraud subjected Petitioner to 10 years in prison.  18 U.S.C. §§ 1347(a)(2) (10 years for healthcare fraud), 1349 (same punishment as for offense that is the purpose of conspiracy).  Conviction for each count of health care fraud subjected Petitioner 10 years in prison.  18 U.S.C. § 1347(a)(2).  Petitioner’s conviction of the one count of conspiracy to obstruct justice carried a prison sentence of 20 years.  18 U.S.C. § 1512(c), (k).  A federal criminal offense that is punishable by imprisonment for less than 25 years but ten or more years is a Class C felony.  18 U.S.C. § 3559(a)(3). 

The conspiracy to commit health care fraud and the health care fraud charges of which Petitioner was convicted alleged that the crimes occurred from about 2000 and continuing

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through about 2018.  The conspiracy to obstruct justice charge of which Petitioner was convicted alleged the offense occurred beginning in or about 2017 and continued through in or about 2018.  IG Ex. 3 at 5, 10, 16.  Therefore, all Petitioner offenses were committed after August 21, 1996. 

There is no dispute that Tricare, a health care program administered by the Department of War for individuals and dependents with the armed forces (CMS Ex. 3 at 3 ¶ 10), was one of the  targets of the charge of conspiracy to commit health care fraud and health care fraud of which Petitioner was convicted.  CMS Ex. 3 at 5, 10-11. 

The charges of conspiracy to commit health care and health care fraud of which Petitioner was convicted satisfy the final element that triggers mandatory exclusion under section 1128(a)(3) of the Act.  The nexus between the delivery of health care items or services and the relation between the offenses of which Petitioner was convicted is established through the same nexus analysis applied related to § 1128(a)(1) of the Act already discussed. 

I conclude that the elements that trigger mandatory exclusion under section 1128(a)(3) of the Act are satisfied in this case. 

There is a basis for Petitioner’s exclusion pursuant to section 1128(a)(1) and (3) of the Act and Congress has mandated his exclusion from participation in any federal health care program.  I have no discretion not to exclude Petitioner in this case as I am bound to follow the federal statutes and regulations.  42 C.F.R. § 1005.4(c)(1). 

4.  Section 1128(c)(3)(B) of the Act requires a minimum period of exclusion of five years for an exclusion under Section 1128(a) of the Act. 

I have concluded that a basis exists to exclude Petitioner pursuant to sections 1128(a)(1) and (3) of the Act.  Therefore, the IG must exclude Petitioner for the minimum period of five years required by Congress in section 1128(c)(3)(B) of the Act.  There is no review of the reasonableness of the five-year period of exclusion or any discretion to impose a lesser period.  42 C.F.R. §§ 1001.102(a), 1001.2007(a)(2). 

5.  Six aggravating factors established by 42 C.F.R. § 1001.102(b) exist in this case that may be relied upon by the IG to extend the period of exclusion beyond five years and no mitigating factors established by 42 C.F.R. § 1001.102(c) exist. 

The Act specifies that exclusion pursuant to section 1128(a) is for the minimum period of five years.  Act § 1128(c)(3)(B).  The minimum period of exclusion is 10 years if there was one prior conviction of an offense for which exclusion may be imposed, and

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permanent exclusion is required if there were two or more convictions for which exclusion could have been imposed.  Act § 1128(c)(3)(G). 

The aggravating and mitigating factors that the IG may consider to extend the period of exclusion beyond the statutory minimum of five or 10 years are established by 42 C.F.R. § 1001.102(b) and (c). 

(b) Any of the following factors may be considered to be aggravating and a basis for lengthening the period of exclusion—

(1) 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 entire amount of financial loss to such government agencies or programs or to other entities, including any amounts resulting from similar acts not adjudicated, will be considered regardless of whether full or partial restitution has been made);

(2) The acts that resulted in the conviction, or similar acts, were committed over a period of one year or more;

(3) The acts that resulted in the conviction, or similar acts, had a significant adverse physical, mental or financial impact on one or more program beneficiaries or other individuals;

(4) In convictions involving patient abuse or neglect, the action that resulted in the conviction was premeditated, was part of a continuing pattern of behavior, or consisted of non-consensual sexual acts;

(5) The sentence imposed by the court included incarceration;

(6) The convicted individual or entity has a prior criminal, civil or administrative sanction record;

(7) The individual or entity has previously been convicted of a criminal offense involving the same or similar circumstances;

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(8) The individual or entity has been convicted of other offenses besides those that formed the basis for the exclusion; or

(9) The individual or entity has been the subject of any other adverse action by any Federal, State or local government agency or board if the adverse action is based on the same set of circumstances that serves as the basis for the imposition of the exclusion. 

(c) Only if any of the aggravating factors set forth in paragraph (b) of this section justifies an exclusion longer than 5 years, may mitigating factors be considered as a basis for reducing the period of exclusion to no less than 5 years.  Only the following factors may be considered mitigating—

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

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

(3) The individual’s or entity’s cooperation with Federal or State officials resulted in—

(i) Others being convicted or excluded from Medicare, Medicaid and all other Federal health care programs,

(ii) Additional cases being investigated or reports being issued by the appropriate law enforcement agency identifying program vulnerabilities or weaknesses, or

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(iii) The imposition against anyone of a civil money penalty or assessment under part 1003 of this chapter. 

42 C.F.R. § 1001.102(b)-(c).  I note that 42 C.F.R. § 1001.102(b) does not require that the IG extend a period of exclusion based on the existence of one or more aggravating factors.  Rather, the regulation provides that any of the listed factors “may be considered to be aggravating and a basis for lengthening the period of exclusion,” which clearly indicates that the IG has discretion to consider the existence of one or more factors and whether to extend the period of exclusion.  Under 42 C.F.R. § 1001.102(c), mitigating factors may be considered only when an aggravating factor under 42 C.F.R. § 1001.102(b) has been considered.  The IG is not permitted to reduce the period of exclusion below the minimum period of five years.  The regulation is explicit that only the factors listed in 42 C.F.R. § 1001.102(c) may be considered mitigating. 

As already noted, Petitioner does not dispute that the IG had a basis to exclude him under section 1128(a)(1) and (3) of the Act.  Petitioner focuses upon the existence and weighing of the aggravating factors by the IG and the IG’s failure to identify and consider any mitigating factors.  The IG cited six aggravating factors described as follows in extending Petitioner’s period of exclusion from the mandatory minimum five-year exclusion to 50 years.  The IG considered no mitigating factors.  IG Ex. 1 at 1-2. 

a.  The IG properly considered that Petitioner’s criminal offenses resulted in a loss to one or more entities of $50,000 or more.  42 C.F.R. § 1001.102(b)(1). 

The IG found that the aggravating factor existed based on the fact Petitioner was ordered by the district court to pay restitution to Medicare, Texas Medicaid, Tricare, and Blue Cross & Blue Shield totaling $28,245,454.  CMS Ex. 1 at 1; CMS Ex. 2 at 5. 

The Board has previously accepted that an amount ordered as restitution constitutes proof of the amount of financial loss.  Jeremy Robinson, DAB No. 1905 at 11 (2004); Craig Richard Wilder, DAB No. 2416 at 9 (2011); Juan de Leon, Jr., DAB No. 2533 at 5 (2013); Laura Leyva, DAB No. 2704 at 9 (2016).  A district court determination of the proper amount or type of restitution must be based on the preponderance of the evidence, i.e., the evidence shows that the amount is more likely correct than not correct.  18 U.S.C. § 3664(c).  The preponderance of the evidence standard is also the evidentiary standard applicable in this forum.  Prehearing Order § 4.  Therefore, the district court judgment that the loss is more than $50,000 is sufficient evidence in this forum to meet the IG’s burden to show the existence of this aggravating factor. 

Petitioner does not deny in his briefs that the acts for which he was convicted resulted in or were intended to result in financial loss of $50,000 or more.  P. Br., P. Reply.  In his request for hearing, Petitioner disagreed that there was an actual or intended loss of more

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than $50,000 to a government agency.  Petitioner argued that there was no loss to the government because subsequent laboratory analysis showed that the seven patients who were the focus of the government case in his criminal prosecution did have rheumatoid arthritis.  RFH at 1. 

Petitioner argued in his request for hearing and in his briefs that the district court erred in determining the amount of loss and restitution by extrapolating claims for the seven patients who were the focus of the government prosecution to the 40,000 other patients under Petitioner’s care over 20 years.  Petitioner argues, without citation of authority,3 that the district court needed to conduct a separate evidentiary hearing to determine program loss.  P. Br. at 19.  The point of Petitioner’s arguments are that the IG relied heavily or primarily upon the restitution amount of $28,245,454 to justify a 50-year exclusion.  But Petitioner asserts that number is not proven or reliable based only on extrapolation from claims related to seven patients who were the focus of the government prosecution.  RFH at 1, P. Br. at 6, 11, 14, 19, 24, 27, 32, 42, 53, 66, 71-74. 

Petitioner’s arguments regarding the actual or intended loss are without merit.  The Secretary has provided by regulation that: 

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

42 C.F.R. § 1001.2007(d).  In Petitioner’s case the jury convicted him and the district court entered judgment based on the jury conviction.  IG Ex. 2.  The district court was also required by 18 U.S.C. §§ 3663, 3663A, and 3664 to decide whether to order restitution and the amount of restitution to order.  The restitution determination of the district court judge had to be supported by the preponderance of the evidence.  The

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procedure for determining the type and amount of the restitution required that the government show the victim and loss.  Petitioner had the burden of showing his financial resources.  18 U.S.C. § 3664(e).  Whether to impose the requirement to pay restitution as part of sentencing was the result of adjudication before the district court and the district court judge made the decision based on the preponderance of the evidence.  Therefore, as with the conviction of the various offenses, the decision related to restitution is not subject to collateral attack or my review.  The amount of the restitution is established by the district court judgment and that judgment is binding on Petitioner, the IG, and me.  Petitioner cannot attack the district court’s determination of the amount of restitution in this forum or the procedures or evidentiary basis for the district court’s determination of the amount. 

Petitioner also argues that the IG relied too heavily upon the amount of the restitution in determining to exclude Petitioner for 50-years, which is discussed in the next section of this decision. 

I conclude this aggravating factor exists and that the IG could consider this factor to determine the period of exclusion. 

b.  The IG properly considered as an aggravating factor that Petitioner was convicted for criminal acts that were committed over a period of one year or more.  42 C.F.R. § 1001.102(b)(2). 

The IG may consider as an aggravating factor that the acts that resulted in the conviction occurred over a year or more.  42 C.F.R. § 1001.102(b)(2).  In the present case, it is undisputed that the jury found that Petitioner committed the conspiracy to commit health care fraud and health care fraud for which he was convicted from in or about 2000 through in or about 2018, and conspiracy to obstruct justice from in or about 2017 through in or about 2018.  IG Ex. 3 at 5, 10, 16.  This aggravating factor is undisputed and could be considered by the IG to extend the period of exclusion. 

c.  The IG properly considered as an aggravating factor that Petitioner was sentenced to incarceration.  42 C.F.R. § 1001.102(b)(5). 

Under 42 C.F.R. § 1001.102(b)(5), the IG may extend the period of exclusion beyond the mandatory minimum five-year period when the sentence imposed by the court includes incarceration.  On May 21, 2025, the district court sentenced Petitioner to 120 months in prison for each offense of which he was convicted by the jury, the periods of confinement to be served concurrently.  IG Ex. 2 at 3.  Petitioner does not dispute the existence of this aggravating factor, and I conclude that this aggravating factor could be considered by the IG. 

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d.  The IG properly considered as an aggravating factor that Petitioner had a prior administrative sanction record.  42 C.F.R. § 1001.102(b)(6). 

The IG may consider as an aggravating factor that the convicted person or entity had a prior criminal, civil, or administrative sanction record.  Petitioner does not dispute the evidence of the 2009 Texas Medical Board Agreed Order under which he was reprimanded (IG Ex. 4) or the 2010 Arizona Medical Board letter of reprimand (IG Ex. 5).  I conclude that this aggravating factor is established by the evidence and could be considered by the IG. 

e.  The IG properly considered as an aggravating factor that Petitioner was convicted of another offense beside those that are the bases for his exclusion.  42 C.F.R. § 1001.102(b)(8)

The Secretary authorized the IG to consider as an aggravating factor that an individual or entity subject to exclusion was also convicted of another offense that is not the basis for exclusion.  In this case, it is undisputed that Petitioner was convicted of conspiracy to obstruct justice.  IG Ex. 2 at 2; IG Ex. 3 at 16; IG Ex. 8 at 5.  I conclude that this aggravating factor exists and could be considered by the IG. 

f.  The IG properly considered as an aggravating factor that Petitioner was also subject to adverse actions by state agencies based on the same circumstances that are the basis for the imposition of the exclusion.  42 C.F.R. § 1001.102(b)(9). 

The IG may consider that an individual or entity subject to exclusion was subject to any adverse action by any federal, state, or local government agency or board if the adverse action is based on the same set of circumstances that serve as the basis for exclusion.  42 C.F.R. § 1001.102(b)(9).  Petitioner does not dispute the evidence that his medical license was suspended by the Texas Medical Board.  IG Ex. 7.  Petitioner also does not dispute that the Texas IG excluded him from participating in Texas Medicaid.  IG Ex. 8.  Both action were based on Petitioner’s conviction.  I conclude this aggravating factor exists and was subject to consideration by the IG. 

g.  Petitioner has not established the existence of a mitigating factor recognized by 42 C.F.R. § 1001.102(c). 

Because the IG considered aggravating factors, mitigating factors listed in 42 C.F.R. § 1001.102(c) should have been considered if they existed.  The IG notice of exclusion lists no mitigating factors considered.  IG Ex. 1.  Petitioner has the burden of coming forward with evidence showing the existence of mitigating factors.  Prehearing Order ¶ 4.  Petitioner offered no evidence such as an affidavit or declaration or other evidence to

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show that there is a disputed fact as to the existence of a mitigating factor recognized under 42 C.F.R. § 1001.102(c).  Therefore, Petitioner did not meet his burden and there is no genuine dispute as to the possible existence of mitigating factors under 42 C.F.R. § 1001.102(c). 

6.  Exclusion for 50 years is not unreasonable in this case. 

Petitioner does not dispute: (1) his conviction is a basis for revocation; (2) the existence of aggravating factors under 42 C.F.R. § 1001.102(b), including the factor that his crimes caused or were intended to cause loss of $50,000 or more; and (3) he has not presented evidence from which I might reasonably infer the existence of one of the mitigating factors listed in 42 C.F.R. § 1001.102(c).  Rather, the crux of Petitioner’s arguments is that exclusion for 50 years is unreasonable because the IG improperly weighed the aggravating factors, particularly the amount of restitution ordered, without considering his long career and service to his patients and medicine.  These arguments are meritless. 

The Secretary’s provided by regulation that an ALJ is supposed to determine whether the length of exclusion imposed is “unreasonable.”  42 C.F.R. § 1001.2007(a)(1)(ii).  But the IG and the Board have significantly narrowed the scope of review of whether the length of exclusion is unreasonable.  Appellate panels of the Board interpreting the regulations have concluded 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 as discussed by the IG in rulemaking.  Juan de Leon, Jr., DAB No. 2533 at 3; Craig Richard 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.  Pursuant to 42 C.F.R. § 1005.20(b), an ALJ is authorized to affirm, increase, or reduce the period of exclusion imposed by the IG.  But 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.  The Board has tightly restricted my authority under the applicable regulation to judge the unreasonableness of the period of exclusion and adjust that period as shown by two Board decisions. 

In John (Juan) Urquijo, DAB No. 1735 (2000), the Board made clear that, if the IG considers an aggravating factor to extend the period of exclusion and that factor is not later shown to exist on appeal, or if the IG fails to consider a mitigating factor that is shown to exist, then the ALJ may make a decision as to the appropriate extension of the period of exclusion beyond the minimum. 

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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 Boards decisions in Urquijo and Katz seem to indicate that the ALJ’s authority under 42 C.F.R. § 1005.20(b) to increase or reduce the period of exclusion imposed by the IG is only triggered when the IG considers an aggravating factor that the ALJ concludes does not exist or the IG fails to consider a mitigating factor the ALJ concludes exists.  If that summation is correct, the issue of whether a period of exclusion is unreasonable, i.e.,

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outside the reasonable range based on consideration of aggravating and mitigating factors, need not be made unless nonexistent aggravating factors were considered or existing mitigating factors were not considered.  In this case, I conclude that the IG considered aggravating factors authorized by 42 C.F.R. § 1001.102(b) that did exist and there was no failure to consider any mitigating factors recognized by 42 C.F.R. § 1001.102(c).  Nevertheless, out of an abundance of caution, and because it is not clear what the Board or the IG intends, I consider whether a 50-year exclusion falls within a reasonable range, i.e., is not unreasonable. 

Exclusion of at least 50 years is within the reasonable range.  In my opinion, each of the aggravating factors justifies a significant increase in the period of exclusion from the five-year minimum required by the Act.  Considering all the evidence of record, I conclude that Petitioner is not trustworthy to participate in Medicare, Medicaid, or any federal health care programs in any capacity. 

The loss or intended loss due to Petitioner’s crimes was $50,000 or more and the aggravating factor exists.  The district court determined that the amount of restitution was $28,245,454 (CMS Ex. 2 at 5), which is nearly 65 times the amount necessary for the aggravating factor to exist and be considered by the IG.  Petitioner argues that the IG gave too much weight to the fact the district court ordered restitution of $28,245,454.  Petitioner asserts that amount is incorrect and should not be considered because the district court extrapolated from evidence related to only seven patients.  P. Br. at 19, 23-24, 27, 32, 52-53, 71-73.  But the district court found that amount of restitution was appropriate based on the preponderance of the evidence before the district court.  Petitioner cannot collaterally attack that district court determination of restitution in this proceeding.  I cannot review or look behind the district court determination of the restitution amount.  The magnitude of the restitution ordered reflects the significant financial impact of Petitioner’s criminal offenses recognized by the district court.

Petitioner was convicted of conspiracy to commit health care fraud and health care fraud, offenses that occurred from in or about 2000 through in or about 2018, roughly 18 years. IG Ex. 3 at 5, 10.  The aggravating factor recognized by 42 C.F.R. § 1001.102(b)(2) exits if the acts that resulted in conviction were committed over a period of one year or more.  Petitioner’s criminal scheme lasted 18 years, far more than the one-year period treated by the regulations as aggravating.4

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Petitioner was sentenced to 120 months in prison for each of the nine counts for which he was found guilty but to be served concurrently.  IG Ex. 2 at 3.  Nevertheless, 120 months (10 years) is a substantial amount of time that reflects his criminality in the eyes of the district court and justifies a significant increase from the minimum exclusion of five years.

Petitioner does not discuss in its request for hearing or briefs, the remaining aggravating factors cited by the IG.  On November 4, 2009, Petitioner agreed to a consent order issued by the Texas Medical Board pursuant to which he received a public reprimand; agreed, inter alia, to monitoring and education; and agreed to pay an administrative penalty of $30,000.  The Texas Medical Board alleged that Petitioner, who practiced rheumatology and was board certified in rheumatology and internal medicine, improperly diagnosed, ordered unjustified testing, failed to adequately document medical records, and incorrectly treated 40 patients for osteoarthritis and rheumatoid arthritis from about 1999 through 2007.  Petitioner did not admit or deny the allegation but agreed to the consent order to avoid further investigation, and the expense and inconvenience of litigation.  IG Ex. 4.  The Texas Medical Board action was based on allegations very similar to the health care fraud and conspiracy to commit health care charges of which Petitioner was convicted by the district court.  Petitioner was also convicted of conspiracy to obstruct justice by creating and presenting false medical records to the grand jury.  IG Ex. 2 at 2; IG Ex. 3 at 16-18.  The facts underlying the Texas Medical Board action considered with the nearly 18-year course of criminal conduct for which Petitioner was convicted in the district court support a conclusion that Petitioner was highly culpable and had little regard for complying with the law or the delivery of quality care and services to patients.  Petitioner’s effort to present false evidence to the grand jury provides additional support for my conclusion that Petitioner is not trustworthy. 

Petitioner argues that IG erred by failing to consider or properly weigh his years of the practice of medicine, the number of patients he has served, his education, and his experience.  P. Ex. 1; P. Br. at 14-15, 75-77, 79-80, 83-86; P. Reply at 6.  The good works of an individual subject to exclusion pursuant to section 1128(a)(1) and (3) of the Act based on a criminal conviction are not listed as a mitigating factor authorized to be considered under 42 C.F.R. § 1001.102(c).  Even if, I consider Petitioner superlative in all aspects of his life (except the criminal acts reflected by his conviction) I would still conclude he is not trustworthy to be a physician or medical practitioner of any type permitted to participate in Medicare, Medicaid, or any other healthcare program delivering care and services to Medicare beneficiaries who are entitled to rely upon the fact a practitioner is permitted to participate in Medicare as an indication of quality and reliability.  The evidence shows that Petitioner has been highly motivated to act in his self-interest rather than the best interests of Medicare beneficiaries or the programs that ensure quality healthcare is available to beneficiaries.  Petitioner’s request for hearing and briefs shows he persists in rationalizing and defending his criminal behavior without

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indication of any remorse or rehabilitation.  Petitioner asserts that the period of exclusion imposed must bear some “reasonable relationship to the statutory objective of protecting Federal health care programs.”  P. Br. at 10.  I do not agree that is the applicable standard.  Nevertheless, in this case Petitioner’s 50-year exclusion certainly serves the twin Congressional purposes underlying section 1128(a) of the Act. 

Petitioner argues that exclusion for 50 years is punitive rather than remedial because the duration is not related to the remedial purpose of section 1128 of the Act.5  P. Br. at 7, 15, 28, 35, 42, 44, 45, 83, 86-88.  Exclusions imposed by the IG are civil sanctions, remedial in nature and not punitive and criminal.  Because exclusions are remedial sanctions, they do not violate the double jeopardy clause or the prohibition against cruel and unusual punishment.  Manocchio v. Kusserow, 961 F.2d 1539 (11th Cir. 1992); Greene v. Sullivan, 731 F. Supp. 838 (E.D. Tenn. 1990); Cash, DAB No. 1725; Douglas Schram, R.Ph., DAB No. 1372 (1992); and Janet Wallace, L.P.N., DAB No. 1326 (1992).  Congress has expressed that the exclusion remedy serves twin congressional purposes: the protection of federal funds and program beneficiaries from untrustworthy individuals and the deterrence of health care fraud.  S. Rep. No. 100-109, at 1-2 (1987), reprinted in 1987 U.S.C.C.A.N. 682, 686 (“clear and strong deterrent”); Cash, DAB No. 1725 at 18 (discussing trustworthiness and deterrence).  When Congress added section 1128(a)(3) in 1996, it again focused upon the desired deterrent effect:  “greater deterrence was needed to protect the Medicare program from providers who have been convicted of health care, fraud felonies . . . .”  H.R. Rep. 104-496(I), at 86 (1996), reprinted in 1996 U.S.C.C.A.N. 1865, 1886.  Arguments that the exclusion provisions are anything but remedial have been found to be without merit.  Manocchio, 961 F.2d at 1541-42; Greene, 731 F. Supp. at 839-40.  Many federal courts have also rejected claims that the Secretary’s exclusion procedures amount to a deprivation of due process, finding no constitutionally protected property or liberty interests in being permitted to participate in Medicare and other federal health care programs.  Rodabaugh v. Sullivan, 943 F.2d 855

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(8th Cir. 1991); Lavapies v. Bowen, 883 F.2d 465 (6th Cir. 1989); Hillman Rehab. Ctr. v. U.S. Dep’t. of Health & Human Servs., No. 98-3789 (GEB), slip op. at 16, 1999 WL 34813783, at 16 (D.N.J. May 13, 1999); Travers v. Sullivan, 801 F. Supp. 394, 404-05 (E.D. Wash. 1992), aff’d, Travers v. Shalala, 20 F.3d 993 (9th Cir. 1994).  Petitioner’s argument that his 50-year exclusion should be shortened because it is punitive rather than remedial is without merit.  Petitioner fails to accept that he has shown himself to be untrustworthy and that imposing a 50-year exclusion protects Medicare funds and Medicare beneficiaries from his untrustworthiness and potential for future fraudulent conduct, which accomplishes both Congressional purposes for exclusion. 

Petitioner argues that the IG has not shown why a 50-year exclusion is necessary to accomplish the remedial purposes of the Act rather than a substantially shorter period.  P. Br. at 13; P. Reply at 8.  But as Petitioner recognizes, the IG’s evidence establishes the conviction and the aggravating factors that are the basis for the 50-year exclusion the IG exercised its discretion to impose.  Petitioner has the burden to show mitigating factors that would justify a lower period of exclusion.  But Petitioner failed to present any evidence from which one can reasonably infer the existence of a mitigating factor that would support finding less than 50 years was appropriate.  Therefore, Petitioner cannot defeat the IG’s motion for summary judgment because Petitioner has not shown a genuine dispute of material fact related to the existence of a mitigating factor recognized by 42 C.F.R. § 1001.102(c). 

Petitioner argues that the IG’s 50-year exclusion is tantamount to a lifetime or permanent exclusion.  P. Br. at 6, 82-83; P. Reply. at 6.  Petitioner cites no authority to support a position that the IG does not have discretion under section 1128(c)(3) of the Act and 42 C.F.R. § 1001.102 to impose a permanent exclusion in an appropriate case.  However, the fact is that the IG did not impose a permanent exclusion but, rather, a 50-year exclusion clearly reflects the IG knew the difference between a permanent exclusion and an exclusion for a term of years and exercised discretion.  Petitioner’s arguments may be construed as pleas for equitable relief.  However, I have no authority to grant such relief.  Matthew J. Girardy, DMD, DAB No. 2987 at 7 (2020).  Congress required Petitioner’s exclusion pursuant to sections 1128(a)(1) and (3) of the Act and those requirements are binding upon the Secretary and me.  I am bound to follow the Act and the Secretary’s regulations.  42 C.F.R. § 1005.4(c)(1). 

Based on my de novo review, I conclude that exclusion pursuant to sections 1128(a)(1) and (3) of the Act is required.  The undisputed evidence establishes the six aggravating factors that the IG relied on to impose the 50-year exclusion.  Petitioner has shown no genuine dispute of material fact or presented evidence that triggers an inference in his favor that the IG considered an aggravating factor that did not exist or that the IG failed to consider any mitigating factor authorized by 42 C.F.R. § 1001.102(c).  Accordingly, summary judgment is appropriate as I have no authority to reassess the period of exclusion imposed in this case.  Furthermore, a period of exclusion of 50 years is in a

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reasonable range and not unreasonable considering the existence of the six aggravating factors in this case and no mitigating factor.  Accordingly, I conclude that no change in the period of exclusion is permissible or appropriate. 

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

III.  Conclusion

For the foregoing reasons, Petitioner is excluded from participation in Medicare, Medicaid, and all other federal health care programs for 50 years, effective October 20, 2025.