Erik X. Alonso, DAB 3186 (2025)

FINAL DECISION ON REVIEW OF 
ADMINISTRATIVE LAW JUDGE DECISION

Erik X. Alonso (Petitioner) appeals the February 14, 2025 decision of an Administrative Law Judge (ALJ) captioned Erik X. Alonso, DAB CR6616 (2025) (ALJ Decision).  The ALJ Decision upheld the determination of the Inspector General (I.G.) to exclude Petitioner from participation in Medicare, Medicaid, and all federal health care programs for 42 years under section 1128(a)(1) of the Social Security Act (Act).  We affirm the ALJ Decision for the reasons stated below.

Legal Background

The Secretary of the Department of Health and Human Services (Secretary) must exclude from participation in all federal health care programs any individual who “has been convicted of a criminal offense related to the delivery of an item or service under title XVIII or under any State health care program.”  Act § 1128(a)(1); accord 42 C.F.R. § 1001.101(a).

For an exclusion under section 1128(a)(1) of the Act, “the minimum period of exclusion shall be not less than five years,” and may exceed five years if any regulation-specified aggravating factor is present.  Act § 1128(c)(3)(B); 42 C.F.R. § 1001.102(a)-(b).  Four such aggravating factors are relevant here.  The first is that “[t]he 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.”  42 C.F.R. § 1001.102(b)(1).  The second is that “[t]he acts that resulted in the conviction, or similar acts, were committed over a period of one year or more.”  Id. § 1001.102(b)(2).  The third is that “[t]he sentence imposed by the court included incarceration.”  Id. § 1001.102(b)(5).  The fourth is that “[t]he 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.”  Id. § 1001.102(b)(9). 

Page 2

If the I.G. determines that one or more aggravating factors justify an exclusion longer than five years, the I.G. may consider only three specified mitigating factors as a basis for reducing the exclusion period to no less than five years.  See id. § 1001.102(c).  One such factor is an excluded individual’s cooperation with federal or state officials that resulted in:  the conviction of others or their exclusion from all federal health care programs; certain types of additional investigations or reports; or imposition of a civil money penalty or assessment.  Id. § 1001.102(c)(3). 

An excluded individual may request a hearing before an ALJ on the issues of whether the I.G. had a basis for imposing the exclusion and whether an exclusion longer than the required minimum period is unreasonable.  Id. §§ 1005.2(a), 1001.2007(a)(1).  A party dissatisfied with the ALJ’s decision may appeal it to the Board.  Id. § 1005.21(a). 

Case Background¹

Petitioner, who has a doctorate in psychology, was a licensed clinical social worker and Clinical Director of three community mental health centers (Clinics) in Florida that offered services to eligible Medicare beneficiaries.  I.G. Ex. 2, at 3-4; I.G. Ex. 4, at 1.

In May 2015, the United States Department of Justice indicted Petitioner and three alleged co-conspirators in the United States District Court for the Southern District of Florida (Federal Court).  I.G. Ex. 2.  The Indictment charged Petitioner and others with one count of conspiracy under 18 U.S.C. § 1349 and two counts of conspiracy under 18 U.S.C. § 371.  Id. at 4-12, 17.²  The conspirators’ alleged crimes included “submitting and causing the submission of false and fraudulent claims to Medicare” and “receiving and diverting the proceeds of the fraud” for personal use.  Id. at 5-6.  The fraud allegedly included paying kickbacks for patient referrals, falsifying patient records, and submitting fraudulent claims to Medicare for patient services that “were not medically necessary and not provided.”  Id. at 6.

In October 2015, Petitioner agreed to plead guilty to two of the Indictment’s three counts against him.  I.G. Ex. 3.  In connection with the plea, Petitioner agreed that one of his primary roles in the fraudulent scheme “involved managing and supervising therapists at the Clinics, and overseeing the fabrication of patient files.”  I.G. Ex. 4, at 2.  Petitioner further agreed that “[b]etween approximately March 2008 and December 2010, the Clinics submitted approximately $64 million in false and fraudulent claims to Medicare, and were paid $26 million for those claims.”  Id.  Petitioner admitted that his participation in the criminal conspiracy “resulted in an actual or intended loss” of 

Page 3

between $50,000,000 and $100,000,000, and that he was a “manager and organizer” of “extensive” criminal activity.  I.G. Ex. 3, at 7, 9.  Prosecutors in turn acknowledged that Petitioner “has clearly demonstrated acceptance of responsibility for his offense and assisted authorities in the investigation and prosecution of his own misconduct.”  Id. at 9.  Petitioner acknowledged that as a result of his guilty plea he would “be excluded from Medicare, Medicaid, and all Federal health care programs.”  Id. at 4. 

On December 21, 2015, the Federal Court entered a criminal judgment that Petitioner was guilty of one count of “[c]onspiracy to commit health care fraud” under 18 U.S.C. § 1349 and one count of “[c]onspiracy to make false statement relating to health care matters” under 18 U.S.C. § 371.  I.G. Ex. 5, at 1.  The Federal Court imposed a $26,155,133 restitution obligation, named the Centers for Medicare and Medicaid Services as the victim, and sentenced Petitioner to 60 months of imprisonment with three subsequent years of supervised release.  I.G. Ex. 5, at 2-3, 5.  The Federal Court later granted the prosecutors’ request, under Federal Rule of Criminal Procedure 35 (Rule 35), to reduce Petitioner’s period of incarceration to 40 months.³  ALJ Decision at 5; I.G. Exs. 11, 13.

In March 2017, the Florida Board of Clinical Social Work, Marriage and Family Therapy and Mental Health Counseling (Florida Board) permanently revoked Petitioner’s license to practice as a clinical social worker in Florida.  I.G. Ex. 12, at 3.  The basis of the license revocation was that Petitioner had violated Florida statutes by having been “convicted of, or enter[ed] a plea of guilty” to “a crime in any jurisdiction that relates to health care fraud.”  Id. at 2.

The I.G. issued two notice letters addressed to Petitioner.  The first letter (Notice of Intent), dated September 6, 2017, warned of his impending exclusion under section 1128(a) of the Act due to his criminal conviction.  I.G. Ex. 6, at 1.  The second letter (Notice of Exclusion), dated November 30, 2017, stated he was excluded for 42 years (beginning 20 days from the letter’s date) from participation in all federal health care programs pursuant to section 1128(a)(1) of the Act.  ALJ Decision at 1; I.G. Ex. 1 at 1. 

The Notice of Exclusion explained the reasons for Petitioner’s exclusion and its duration.  The exclusion was due to Petitioner’s conviction “of a criminal offense related to the delivery of an item or service under Medicare or a State health care program, including the performance of management or administrative services relating to the delivery of items of services under any such program.”  ALJ Decision at 1-2; I.G. Ex. 1, at 1.  The exclusion’s length was due to four aggravating factors and one mitigating factor.  I.G. Ex. 1 at 1-2 (stating factual bases for applying aggravating factors in 42 C.F.R. § 1001.102(b)(1), (2), (5), and (9) and mitigating factor at 42 C.F.R. § 1001.102(c)(3)). 

Page 4

Over five years later, on August 30, 2023, Petitioner filed an ALJ hearing request, stating that the I.G.’s Notice of Exclusion was first “received on 8/30/2023.”  Request for Hearing at 1.  The I.G. filed, but eventually withdrew, a motion to dismiss Petitioner’s hearing request as untimely filed, and the ALJ ordered that the case would proceed on the merits and gave Petitioner an opportunity to submit documents to the I.G. for reconsideration.  ALJ Decision at 2.  Petitioner timely submitted additional documents for review by the I.G., which on October 1, 2024 issued its reconsidered determination.  Id. at 3; I.G. Ex. 10.  “After careful consideration,” stated the reviewing official, the I.G. had concluded “that the 42-year term of exclusion imposed in the 2017 Notice of Exclusion was appropriate based on the aggravating and mitigating factors previously identified,” which Petitioner’s newly submitted materials had not affected.  I.G. Ex. 10. 

The I.G. filed a brief and 14 exhibits with the ALJ, arguing that the requirements for excluding Petitioner under section 1128(a)(1) of the Act were met and the evidence established four aggravating factors and one mitigating factor.  ALJ Decision at 2-3; I.G. Br. to ALJ at 2-8; I.G. Exs. 1-9.  The I.G. argued that “Petitioner’s 42-year period of exclusion is well within a reasonable range, given the presence of four substantial aggravating factors.”  I.G. Br. to ALJ at 9.  The I.G. proffered no witness testimony and considered a hearing unnecessary.  Id. at 11.

Petitioner filed a brief and nine exhibits.  ALJ Decision at 2-3; P. Br. to ALJ; P. Exs. 1-9. Petitioner did “not contest the legal basis for the exclusion under Section 1128(a)(1)” of the Act but claimed the 42-year length of the exclusion was “unreasonable and disproportionate.”  P. Br. to ALJ at 1.  Petitioner “acknowledge[d] the presence of the four aggravating factors” but argued that “their impact is overstated and fails to account for critical context.”  Id.  Petitioner alleged six mitigating factors that the I.G. “severely undervalue[d].”  Id. at 2.  Petitioner asked for reduction of the exclusion’s term to 10 years and proposed an alternative remedy of mandatory compliance training.  Id. at 3-4.

On February 14, 2025, the ALJ issued a decision on the written record because neither party had requested an in‑person hearing or identified witnesses to provide testimony.  ALJ Decision at 3.  The ALJ admitted into evidence all but two of the parties’ exhibits.⁴ Id.  The ALJ held that the I.G. properly excluded Petitioner under section 1128(a)(1) of the Act because Petitioner was convicted of a felony offense related to the delivery of an item or service under Medicare or a state health care program.  Id. at 1, 6-7.  The ALJ concluded that the 42-year exclusion the I.G. imposed “is not unreasonable in this case based on the presence of one mitigating factor and four aggravating factors[.]”  Id. at 12.  Addressing Petitioner’s arguments, the ALJ stated that an ALJ does “not have the 

Page 5

authority to consider” mitigating information beyond the factors listed in 42 C.F.R. § 1001.102(c) and “is not empowered” to grant equitable relief.  Id. at 10, 12.

Petitioner timely appealed the ALJ’s Decision to the Board.  Notice of Appeal (NA).  The I.G. submitted a brief in response.  I.G.’s Resp. (I.G. Br.).  The record now is closed.

Standard of Review

The Board reviews a disputed issue of fact as to whether the ALJ decision “is supported by substantial evidence on the whole record” and reviews a disputed issue of law as to whether the ALJ decision “is erroneous.”  42 C.F.R. § 1005.21(h).

Analysis

Petitioner raises three main arguments before the Board.  First, Petitioner claims procedural errors and denial of due process, asserting that he did not receive the Notice of Intent and Notice of Exclusion because the I.G. sent them “to an incorrect and incomplete address” and not by certified mail.  NA at 1.  Second, Petitioner contends the ALJ erred in applying the aggravating and mitigating factors.  Id. at 2-3.  Third, Petitioner argues that his case “must be viewed in the broader context of aggressive prosecutorial tactics” under the former U.S. Attorney for the Southern District of Florida.  Id. at 4.  Petitioner requests “an opportunity to submit additional evidence that would have been presented if proper notice had been given,” reconsideration of mitigating factors (particularly including his “cooperation” and “limited involvement” in the conspiracy), and “[r]eduction of the exclusion period to a reasonable duration consistent with the 5-year minimum.”  Id. at 4 (emphasis omitted).

The I.G. asks the Board to affirm the ALJ Decision.  I.G. Br. at 8.  The I.G. states that Petitioner’s complaints of lack of notice were remedied during the appeal.  Id. at 3-5.  The I.G. asserts that the ALJ properly rejected all of Appellant’s arguments concerning aggravating and mitigating factors.  Id. at 5-7.  The I.G. contends that Petitioner’s mitigation arguments concerning prosecutorial overreach are an impermissible collateral attack on his conviction.  Id. at 7-8. 

We affirm the ALJ Decision for reasons explained below.

I.      Petitioner has established no prejudicial error resulting from delayed notice of the exclusion.

We first reject Petitioner’s claim that lack of timely notice “deprived” him of his “right to respond, submit evidence, and request a waiver” and was a “denial of due process.”  NA at 1.  The ALJ addressed Petitioner’s concerns by issuing an order on July 31, 2024 “to allow Petitioner the opportunity to submit documents to the IG for reconsideration.”  ALJ 

Page 6

Decision at 2.  Petitioner took that opportunity, and the I.G. gave Petitioner’s newly submitted “additional documents” its “careful consideration” but found they did not support any reduction in the exclusion period by either refuting the established aggravating factors or identifying new mitigating factors.  I.G. Ex. 10. 

It is unavailing for Petitioner to claim that if he had received earlier notice he “would have promptly submitted evidence and requested a waiver as a sole provider of critical mental health services for Spanish-speaking immigrant children suffering from trauma and suicidal ideation.”  See NA at 2 (emphasis omitted).  Receiving such a waiver is conditional on the I.G.’s discretionary granting of a request from an administrator of a federal health care program who has determined an exclusion will impose hardship on Medicare beneficiaries.  Act § 1128(c)(3)(B) (“[U]pon the request of the administrator of a Federal health care program . . . who determines that the exclusion would impose a hardship on beneficiaries . . . of that program, the Secretary may, after consulting with the [I.G.] . . . waive [an] exclusion under subsection (a)(1) . . . in the case of an individual or entity that is the sole community physician or sole source of essential specialized services in a community.”); accord 42 C.F.R. § 1001.1801(a).  Petitioner presents no evidence of having filed (or tried to file) any such request.  Even if the I.G. had received such a request, the I.G.’s decision whether to grant or deny a waiver is administratively and judicially unreviewable.  Act § 1128(c)(3)(B); 42 C.F.R. § 1001.1801(f).  And even if the I.G. had granted Petitioner a waiver, reliance on it for mitigation purposes would be “misplaced” because “the community need for Petitioner’s . . . services is not a mitigating factor that may be applied to reduce a period of exclusion.”  See Mohamed Basel Aswad, M.D., DAB No. 2741, at 12 (2016), aff’d, No. 2:16-cv-1367, 2018 WL 704370 (D.N.M. Feb. 2, 2018); see also Vinod Chandrashekhar Patwardhan, M.D., DAB No. 2454, at 8 (2012) (“[W]e do not find the I.G.’s limited waiver . . . is relevant to our determination of whether a 12-year exclusion period is unreasonable.”).

Petitioner has shown no prejudice from late notice, and “[a]bsent a showing of actual prejudice, the Board will not find that a party has been denied due process based on improper notice of a federal agency’s adverse determination.”  Norman Johnson, M.D., DAB No. 2779 at 16 (2017).  We have rejected arguments, like Petitioner’s, that the I.G.’s failure to properly serve a notice of exclusion deprived the excluded individual of due process and the opportunity to defend himself.  Michael W. Lawrence, DPM, DAB No. 2983, at 7 (2020).  We have explained that “the redress afforded under the Act and regulations for the I.G.’s procedural actions was for the ALJ to give Petitioner a full opportunity to present his case on the . . . exclusion and for the ALJ to review the merits of the appeal,” as occurred in this case.  Id.  There, as here, “[t]he result of that review is a factually and legally sound decision that correctly affirmed the . . . exclusion.”  Id. 

Page 7

II.      The I.G. lawfully excluded Petitioner from all federal health care programs for a minimum of five years pursuant to section 1128(a)(1) of the Act.

Petitioner does not seek reversal of the ALJ’s determination that the I.G. had a legal basis to exclude Petitioner under section 1128(a)(1) of the Act for at least the statutory minimum of five years.  See ALJ Decision at 6-7; NA at 4.  Thus, we summarily affirm that determination.  See Letatia Norris, DAB No. 3135, at 14-15 (summarily affirming unchallenged aspect of ALJ decision), recons. denied, DAB Ruling No. 2024-3 (2024).

III.      The evidence established four aggravating factors under section 1001.102(b).

The ALJ found that the I.G. proved the applicability of four aggravating factors at 42 C.F.R. § 1001.102(b)(1)-(2), (5), and (9), and Petitioner “acknowledge[s] the presence of the four aggravating factors cited by” the I.G.  ALJ Decision at 7-8; P. Br. to ALJ at 1.  Yet Petitioner also argues that the revocation of his social work license, which constitutes an aggravating factor under section 1001.102(b)(9), “should be seen as mitigating, not aggravating.”  NA at 2 (emphasis omitted).  Petitioner asserts that the license revocation “[w]as [a]utomatic,” he had no other disciplinary actions or complaints, and “alternative pathways for licensure in other states” existed.  Id. (emphasis omitted). 

To the extent Petitioner wishes to convert the aggravating factor under 42 C.F.R. § 1001.102(b)(9) to a mitigating factor under section 1001.102(c), he cannot do so.  The governing regulations expressly include “adverse action” by a state board (such as Petitioner’s license revocation by the Florida Board) as an aggravating factor, and not as one of the three exclusive mitigating factors.  42 C.F.R. § 1001.102(b)(9), (c). 

To the extent Petitioner claims the ALJ erroneously overweighed the license revocation as an aggravating factor, we disagree.  Petitioner similarly tried to “downplay[]” his permanent license revocation before the ALJ.  ALJ Decision at 11; see P. Br. to ALJ at 2.  The ALJ did not err in rejecting Petitioner’s arguments and concluding that “having a professional license permanently revoked is certainly relevant and it holds substantial weight in determining the length of an exclusion.”  ALJ Decision at 11.  Even temporary “suspension of a state professional license for any period of time is significant.”  Kimberly Jones, DAB No. 3033, at 12 (2021).  Petitioner’s permanent license revocation is more significant.  See Hussein Awada, M.D., DAB No. 2788, at 13 (2017) (describing revocation of excluded individual’s professional license as “a severe sanction demonstrating, among other things, that Petitioner was not trustworthy”).  Where, as here, an excluded individual “concedes that his license was revoked, but argues that the ALJ did not conduct a qualitative assessment of the circumstances relevant to this factor,” we “reject this argument.”  Id. at 12-13.  “Under section 1001.102(b)(9), the salient question is whether [the excluded individual] was the subject of any other adverse action based on the same set of circumstances that served as the basis for [the] exclusion,” id. at 13, and Petitioner here indisputably was the subject of such an adverse action. 

Page 8

IV.      The evidence established only one cognizable mitigating factor, under 42 C.F.R. § 1001.102(c)(3).

The ALJ correctly stated that the “applicable regulations identify only three mitigating factors,” and supportably found that “the only mitigating factor that may be considered in this case is Petitioner’s cooperation with authorities,” per 42 C.F.R. § 1001.102(c)(3).  ALJ Decision at 9-10.  Petitioner bore “the burden of proving any mitigating factor by a preponderance of the evidence.”  See Barry D. Garfinkel, M.D., DAB No. 1572, at 12 (1996), aff’d, No. 3:96-CV-00604 (D. Minn. June 25, 1997).  Petitioner did not prove that either of the other two regulation-identified mitigating factors applied.  See 42 C.F.R. § 1001.102(c)(1) (concerning convictions for “three or fewer misdemeanor offenses” that caused entire financial loss of “less than $5,000”); id. § 1001.102(c)(2) (concerning judicial determination “that the individual had a mental, emotional or physical condition before or during the commission of the offense that reduced the individual’s culpability”).  

Petitioner incorrectly claims that the ALJ Decision “fails to acknowledge the extensive record of [his] cooperation with federal authorities and the government’s recognition of [his] limited involvement through a Rule 35 sentence reduction.”  See NA at 3 (emphasis omitted).  The ALJ expressly found that the I.G. “identified Petitioner’s cooperation with officials that led to the conviction of a co-conspirator as a mitigating factor,” which “was considered in determining the length of the extension in both the initial exclusion and the reconsidered exclusion.”  ALJ Decision at 10.  The ALJ also acknowledged that the evidence showed “Petitioner’s cooperation was substantial enough to warrant a 35% reduction in his prison sentence.”  Id. (citing I.G. Ex. 11).  Petitioner establishes no error in the weighing of this mitigating factor.  Cf. Phong Hung Tran, M.D., DAB No. 3148, at 21 (2024) (holding that where excluded individual gave “no reason for us to disagree with the ALJ that the I.G. sufficiently accounted for mitigation evidence,” the exclusion’s length “was supported by substantial evidence and free of legal error”) (internal quotation marks omitted).

Petitioner’s attempts to invoke additional mitigating circumstances are futile.  Petitioner argues, for example, that his role in the fraudulent scheme was “limited” and complains of “aggressive prosecutorial tactics” that included “harsh sentencing, and prosecutorial overreach.”  NA at 3-4 (emphasis omitted).  We cannot consider those claims because the ALJ and Board may consider only the three mitigating factors specified in 42 C.F.R. § 1001.102(c).  Waleed Khan, DAB No. 3083, at 2 (2023).  Even a complete “lack of intent to commit an offense is not a mitigating factor under the applicable regulations.”  Aswad at 10; see also Shaun Thaxter, DAB No. 3053, at 35 (2021) (“The mitigating factors that ALJs and the Board may consider are limited to those listed in the regulation and evidence of good character or a lack of bad intent are not among them.”).  Petitioner’s claims of overzealous prosecution not only fail to establish a recognized mitigating factor, but also constitute an impermissible collateral attack on his conviction.  

Page 9

See 42 C.F.R. § 1001.2007(d) (“When the exclusion is based on the existence of a criminal conviction . . . the basis for the underlying conviction . . . is not reviewable and the individual . . . may not collaterally attack it either on substantive or procedural grounds in this appeal.”).  Furthermore, even if we could consider Petitioner’s claims of limited criminal involvement and prosecutorial overreach, they are factually unsupported.  Petitioner admittedly was “a manager and supervisor of a criminal activity that involved five or more participants and was otherwise extensive,” which was an aggravating factor under the criminal sentencing guidelines.  I.G. Ex. 3, at 7, 9.  Yet Petitioner nevertheless benefitted from a Rule 35 motion by the prosecution that reduced his incarceration period by a third.  I.G. Ex. 11.  Petitioner has shown no error by the ALJ in assessing mitigation.

V.      Petitioner’s period of exclusion fell within a reasonable range.

“An ALJ reviews the length of an I.G. exclusion de novo to determine whether it falls within a reasonable range,” considering all applicable aggravating and mitigating factors.  Awada at 5.  By design, the I.G. has “broad discretion” in determining an exclusion’s length, and so long as the I.G. chooses an amount of time “within a reasonable range, based on demonstrated criteria, the ALJ has no authority to change it.”  57 Fed. Reg. 3,298, 3,321 (Jan. 29, 1992).  This deference by the ALJ is appropriate, given the I.G.’s “vast experience in implementing exclusions under these authorities.”  Id.; see Edwin L. Fuentes, DAB No. 2988, at 9 (2020) (“The I.G. comes to the initial selection of an exclusion period with extensive experience reflecting a much wider base of excluded individual[s] and entities and of diverse facts and circumstances than those that could ever come before an ALJ (or the Board) in the appeals process.”), aff’d, No. 4:20-cv-00026, 2021 WL 4341115 (W.D. Va. Sept. 23, 2021).

We see no error in the ALJ’s conclusion that the 42-year exclusion “is not unreasonable based on the circumstances of this case.”  ALJ Decision at 12.  Concerning 42 C.F.R. § 1001.102(b)(1), the ALJ summarized that Petitioner and his co-conspirators submitted over $65 million in false claims, yielding approximately $26 million in payments, and thus committed “an astonishing amount of fraud, particularly for a program designed to provide healthcare to some of this country’s most vulnerable populations.”  Id. at 11.  Regarding section 1001.102(b)(2), the ALJ concluded that Petitioner’s criminal conduct “continued for about two years” and “shows that this was not a temporary lapse in judgment.”  Id.  Addressing section 1001.102(b)(5), the ALJ found that Petitioner’s 40-month incarceration “justifies a sizeable increase in the duration of” his exclusion.  Id.  As discussed above, the ALJ rejected Petitioner’s arguments meant to minimize the weight of the section 1001.102(b)(9) factor and gave “substantial weight” to the Florida Board’s permanent revocation of Petitioner’s license as a clinical social worker.  Id.  As for mitigation, the ALJ correctly summarized that “the only mitigating factor that may be considered in this case is Petitioner’s cooperation with authorities.”  Id. at 10.

Page 10

The ALJ did not err in determining that the 42 C.F.R. § 1001.102(b)(1) factor supports an exclusion period far longer than the minimum.  The Federal Court ordered Petitioner to pay $26,155,133 in restitution and, as the ALJ rightly recognized, payment of restitution “constitutes proof of the amount of financial loss to a government program.”  I.G. Ex. 5, at 5; ALJ Decision at 8.  See Craig Richard Wilder, DAB No. 2416, at 9 (2011) (“The ALJ correctly concluded that restitution has long been considered a reasonable measure of program loss. . . .”); accord Michael D. Miran, Esta Miran, & Michael D. Miran, Ph.D. Psychologist P.C., DAB No. 2469, at 5 (2012).  “[T]he substantial amount of program loss supports a significant increase in the five-year minimum exclusion period.”  Patwardhan at 6-7.  Petitioner’s $26,155,133 restitution obligation is over 523 times the $50,000 threshold for treating a government financial loss as an aggravating factor, and we have given considerable weight even to financial losses that were orders of magnitude smaller.  See, e.g., Samirkumar Shah, M.D., DAB No. 3111, at 10-11 (2023) ($1,234,983.60 loss); Patwardhan at 6 ($1,313,634.10 loss); Jeremy Robinson, DAB No. 1905, at 12 (2004) ($205,000 loss); Donald A. Burstein, Ph.D., DAB No. 1865, at 3, 12 (2003) ($1,749,453 loss).  Furthermore, it is appropriate to consider not only actual, but also “intended” governmental losses.  42 C.F.R. § 1001.102(b)(1).  Petitioner admits the Clinics submitted “approximately $64 million in false and fraudulent claims to Medicare,” which is over 1,280 times greater than the $50,000 threshold.  I.G. Ex. 4 at 2.  Governmental losses that are large multiples of the applicable threshold for consideration support significant prolongation of an exclusion period.  See, e.g., Tran at 20 (“The amount of the program loss here is at least 20 times the threshold amount, making it indeed an exceptional aggravating factor to be accorded substantial weight.”); Shah at 10 (agreeing with ALJ that loss of “more than 11 times the threshold amount for the aggravating factor in section 1001.102(b)(1)” was exceptional factor warranting significant weight); Laura Leyva, DAB No. 2704, at 11 (2016) (upholding loss amount  of “over 40 times the threshold amount” as exceptional factor), aff’d, No. 8:16-CV-1986-JDW-AEP, 2017 WL 2868407 (M.D. Fla. Mar. 29, 2017), report and recommendation adopted, No. 8:16-CV-1986-T-27AEP, 2017 WL 2880125 (M.D. Fla. Apr. 24, 2017).  The ALJ acted in accordance with these precedents by treating the huge losses in this case as substantial support for Petitioner’s 42-year period of exclusion.

The ALJ also did not err in determining that the 42 C.F.R. § 1001.102(b)(2) factor supports an exclusion period much longer than the minimum.  Petitioner pled guilty to committing criminal conduct for over two and a half years, from March 2008 through October 2010.  I.G. Ex. 4, at 2.  Participation in a multi-year criminal scheme demonstrates an excluded individual’s “ongoing lack of integrity” and thus “also supports a substantial increase in the five-year minimum exclusion period.”  Patwardhan at 7.  The presence of this factor, in conjunction with a resulting large financial loss to a government program, “demonstrate[s] Petitioner’s profound untrustworthiness and the future risk he poses to the Medicare and [Medicaid] programs.”  See id. at 7-8.  “Participation in, or even knowing but silent acquiescence in, a continuing fraudulent 

Page 11

scheme that could be expected to cause repeated misrepresentations and repeated harm over a period of time evidences a continuing lack of integrity.”  Burstein at 8. 

Nor did the ALJ err in determining that the 42 C.F.R. § 1001.102(b)(5) factor supports an exclusion period significantly longer than the minimum.  We have held that any incarceration period, however short, justifies increasing an exclusion and even eight months of incarceration is a relatively substantial period.  Richard E. Bohner, DAB No. 2638, at 18 (2015), aff’d, No. 15-4088, 2016 WL 8716339 (E.D. Pa. Dec. 2, 2016).  Petitioner’s incarceration period, even after its court-ordered reduction, was 40 months.  I.G. Ex. 11.  “A multi-year prison term, such as Petitioner’s, is a lengthy period of incarceration to which an ALJ may assign substantial weight.”  Khan at 7.  “Such a substantial period of incarceration would, on its own, justify the I.G. in increasing an exclusion significantly in excess of the five-year mandatory minimum.”  Juan de Leon, Jr., DAB No. 2533, at 6 (2013). 

Regarding the 42 C.F.R. § 1001.102(b)(9) factor, the ALJ did not err in concluding that Petitioner’s permanent license revocation “holds substantial weight” in supporting the exclusion’s length.  ALJ Decision at 11.  See Jones at 13-14 (holding “[t]he ALJ committed no legal or factual error in assigning independent weight to the aggravating factor in section 1001.102(b)(9) as required by the regulations” for the excluded individual’s professional license suspension, or in treating it as one of “three aggravating factors, all of which warrant significant weight”); see also Roji Esha, DAB No. 3076, at 18 (2022) (“To be clear, the bare fact of establishing the aggravating factor at section 1001.102(b)(9) permitted the I.G. to extend the exclusion period by some amount,” and ALJ erred in concluding the factor “warranted no additional lengthening of” exclusion). 

Finally, Petitioner shows no error in the ALJ’s weighing of the mitigating factor in 42 C.F.R. § 1001.102(c)(3).  Petitioner’s cooperation has some mitigating effect, but we reject his argument, as we have rejected comparable arguments, that the “cooperation was extraordinary and that the I.G. and ALJ failed to give [the] cooperation proper weight.”  See Salman Ali, DPT & Roohi Ali, DPT, DAB No. 3048, at 12 (2021), aff’d, No. 21-CV-12365, 2022 WL 3130227 (E.D. Mich. Aug. 4, 2022).  Such arguments “disregard the ALJ’s qualitative, case-specific weighing and assessment of [the] significant aggravating factors, along with a significant mitigating factor.”  Id.  Where, as here, an excluded individual has caused “substantial program loss,” has committed criminal activity of “long duration,” and has received a “substantial incarceration term[,]” these factors “collectively support the extended exclusion period[] imposed by the I.G. and upheld by the ALJ.”  Id.  Petitioner’s “cooperation, although significant, does not outweigh the gravity and magnitude of the aggravating factors, which together reflect Petitioner[’s] lack of trustworthiness.”  Id.

Zahid Imran, M.D., DAB No. 2680 (2016), is informative precedent supporting the ALJ’s 

Page 12

conclusion that Petitioner’s 42-year exclusion period is not unreasonable.  “While direct case comparisons are not dispositive, they can inform whether an exclusion falls within a reasonable range, considering the evidence supporting the aggravating and mitigating factors.”  Robinson at 8 n.6.  In Imran, the Board upheld the 48-year exclusion of an individual who was court-ordered to pay $23,817,779 in restitution, engaged in a criminal conspiracy for over six years, was sentenced to 86 months of incarceration, and had forfeited his medical license.  Id. at 1-3, 5-6.  The factual similarities to this case are apparent, and in Imran we considered it “clear that, on multiple bases, Petitioner’s conduct was extreme based on the specific factors that the regulations require to be considered.”  Id. at 12.  We conclude here, as we concluded in Imran, that the “period of exclusion, while lengthy, is thus tied to the circumstances of the individual case and is not prohibited by the exclusion authorities.”  Id. at 13. 

We believe the ALJ’s upholding of Petitioner’s 42-year exclusion period appropriately addresses “the overarching issue in determining whether the length of an exclusion is reasonable,” which “is whether it is consistent with the statutory purpose of protecting federal health care programs and their beneficiaries.”  See Sushil Aniruddh Sheth, M.D., DAB No. 2491, at 11 (2012), appeal dismissed in part & summarily affirmed in part, No. 13-cv-0448, 2014 WL 11813597 (D.D.C. Jan. 10, 2014), appeal dismissed per curiam, No. 14-5179, 2015 WL 3372286 (D.C. Cir. May 7, 2015).  A multi-year false billing scheme, like the one Petitioner perpetrated with his co-conspirators, “not only threatens the fiscal integrity of the Medicare and Medicaid programs; it harms beneficiaries” of those programs “by wasting resources that could otherwise be used to provide them with needed services.”  See Robert Hadley Gross, DAB No. 2807, at 8 (2017), aff’d, No. 1:17-cv-01801, 2023 WL 5094912 (D.D.C. Aug. 9, 2023).  Thus, in our assessment as in the ALJ’s, 42 years is not an unreasonable exclusion period for Petitioner. 

Conclusion

We affirm the ALJ Decision.

Endnotes

¹  This section draws from the record to provide context but does not replace or modify the ALJ’s findings.

²  The five-count Indictment’s remaining two counts charged one of Petitioner’s co-defendants with paying kickbacks and bribes in violation of 42 U.S.C. § 1320a-7b(b)(2)(A).  I.G. Ex. 2, at 9-10.   

³  Rule 35 allows the court to reduce a sentence, on the government’s motion, if a defendant “provided substantial assistance in investigating or prosecuting another person.”  Fed. R. Crim. P. 35(b)(1).

⁴  The ALJ excluded I.G. Exhibit 9, the written declaration of an I.G. official, as “no longer relevant due to the IG’s withdrawal of its Motion to Dismiss.”  ALJ Decision at 3.  The ALJ did not state a basis for excluding Petitioner’s Exhibit 9, a printed copy of section 1128(f)(1) of the Act concerning an excluded individual’s entitlement to notice, hearing, and judicial review.  Neither party contests either evidentiary ruling before the Board.