Amgad Mikhail, DAB No. 3206 (2025)

FINAL DECISION ON REVIEW OF ADMINISTRATIVE LAW JUDGE DECISION

Amgad Mikhail (Petitioner) appeals the March 5, 2025 decision of an Administrative Law Judge (ALJ) upholding the determination of the Inspector General (I.G.) to exclude Petitioner from participation in Medicare, Medicaid, and all federal health care programs for 15 years under section 1128(a)(1) of the Social Security Act (Act). Amgad Mikhail, DAB CR6627 (2025) (ALJ Decision). Before the ALJ, Petitioner did not dispute that the I.G. had a basis to exclude him under section 1128(a)(1) but argued that the length of his exclusion was unreasonable. The ALJ rejected Petitioner’s arguments and found that the 15-year exclusion was not unreasonable based on the application of two aggravating factors and one mitigating factor. We affirm the ALJ Decision because it is supported by substantial evidence and not legally erroneous.

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) (codified as 42 U.S.C. § 1320a-7(a)(1))¹; accord 42 C.F.R. § 1001.101(a). As the Act permits, the Secretary delegated the exclusion authority to the I.G., who implemented the exclusion authority in regulations, including at 42 C.F.R. Part 1001. Act § 1128A(j)(2); 53 Fed. Reg. 12,993 (Apr. 20, 1988); 48 Fed. Reg. 21,662 (May 13, 1983); see also 42 C.F.R. §§ 1001.1, 1001.101(a) (implementing the exclusion authority at Act § 1128(a)(1)).

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-specific aggravating factor is present. Act § 1128(c)(3)(B); 42 C.F.R. § 1001.102(a),(b)(1)-(9). Two aggravating factors are relevant here. The first is that “[t]he acts resulting in the

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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).

If the I.G. determines that one or more aggravating factors justify an exclusion longer than five years, the I.G. may then consider any of 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 mitigating factor relevant here is when the excluded individual’s cooperation with federal or state officials 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). Petitioner seeks application of an additional mitigating factor that is established when “[t]he 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.” Id. § 1001.102(c)(2).

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 Background²

Petitioner was a licensed physical therapist who worked at a medical clinic in New York that offered services to eligible Medicare and Medicaid beneficiaries. I.G. Ex. 2, at 4. He also owned a company through which he submitted Medicare and Medicaid claims after leaving his employment at the clinic. Id. at 5.

In January 2017, federal prosecutors charged Petitioner and his alleged co-conspirators by superseding information in the United States District Court for the Eastern District of New York (Court). I.G. Ex. 2. The superseding information charged Petitioner with one count of Conspiracy to Commit Health Care Fraud under 18 U.S.C. § 1349 and one count of Conspiracy to Defraud the United States under 18 U.S.C. § 371. Id. at 7-8. Petitioner, together with others, allegedly “submitted and caused to be submitted to Medicare false and fraudulent claims for physical therapy that they knew were induced by cash payments to beneficiaries and were not medically necessary.” Id. at 6. The fraud also allegedly included paying kickbacks to ambulette drivers for patient referrals as well as “to beneficiaries to induce those beneficiaries to subject themselves to purported treatments,” which included “medically unnecessary and . . . falsely and fraudulently

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billed” services, as well as “services purportedly rendered by unlicensed aides instead of licensed therapists.” I.G. Ex. 6, at 1-2. The scheme – which lasted “[b]etween approximately February 2009 and March 2016” – resulted in Petitioner and his co-conspirators submitting “a total of $11,968,509.30 in claims to Medicare and Medicaid,” of which Petitioner and his company “were paid more than $3.9 million.” Id. at 3.

Petitioner agreed to plead guilty to both counts in the superseding information and cooperate with the government. I.G. Ex. 5. Petitioner acknowledged and understood that as a result of his guilty plea he would “be excluded from Medicare, Medicaid, and all Federal health care programs.” Id. at 11.

On May 24, 2023, the Court entered a criminal judgment, finding Petitioner 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 defraud the United States” under 18 U.S.C. § 371. I.G. Ex. 2; I.G. Ex. 6. The Court imposed a $4,226,316.28 restitution obligation, including $3,120,734.32 in restitution to the Centers for Medicare & Medicaid Services and $829,040.96 to New York Medicaid, and sentenced Petitioner to two years of probation. I.G. Ex. 3, at 7; I.G. Ex. 7, at 24-25.

The I.G. issued a Notice of Exclusion dated June 28, 2024, informing Petitioner that he was excluded for 15 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 1-2.

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 or services under any such program.” ALJ Decision at 1-2; I.G. Ex. 1, at 1. The exclusion’s length was due to two 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) ($50,000 loss to government programs, duration over one year) and mitigating factor at 42 C.F.R. § 1001.102(c)(3) (cooperation).

Petitioner timely requested an ALJ hearing, arguing that Petitioner’s 15-year term of exclusion “should be vacated as being an abuse of discretion and error in law.” Request for Hearing at 2. Petitioner, through a later-filed brief, asserted that “[a]n in-person hearing is necessary to decide Petitioner’s [c]ase, including testimony of the Petitioner.” Petitioner Response Br. to ALJ at 6.

The I.G. filed a brief and seven exhibits, arguing that the requirements for excluding Petitioner under section 1128(a)(1) of the Act were met and the evidence established the two aggravating factors and one mitigating factor. ALJ Decision at 2-3; I.G. Informal Br.

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to ALJ at 2-7; I.G. Exs. 1-7. The I.G. argued that the length of Petitioner’s exclusion is “necessary to protect Federal healthcare programs.” I.G. Informal Br. to ALJ at 8. The I.G. proffered no witness testimony and considered a hearing unnecessary. Id. at 10.

Petitioner filed a brief and five exhibits, including Petitioner’s own written direct testimony in the form of a signed declaration (P. Ex. 5). ALJ Decision at 2; P. Br. to ALJ; P. Exs. 1-5. Petitioner did not contest that the I.G. had a legal basis for the exclusion under section 1128(a)(1) of the Act but argued that the length of the exclusion is “unreasonable.” P. Br. to ALJ at 1. Petitioner claimed that the I.G. “grossly undervalues the extent of Petitioner’s cooperation and does not properly consider its magnitude as a mitigating circumstance.” Id. Petitioner further alleged that his medical conditions make the term of exclusion “essentially a life-time ban.” Id. at 6. Petitioner sought a reduction of the exclusion’s term to five years. Id.

The ALJ admitted into evidence all of the parties’ exhibits and, on March 5, 2025, issued a decision on the written record because neither party sought to cross-examine witnesses.³ ALJ Decision at 2. The ALJ held that the I.G. properly excluded Petitioner under section 1128(a)(1) of the Act because Petitioner was convicted of a criminal offense related to the delivery of an item or service under Medicare and Medicaid (which Petitioner did not dispute). Id. at 5. The ALJ further concluded that the 15-year exclusion the I.G. imposed “is not unreasonable based on the presence of one mitigating factor and two aggravating factors which include a significant amount of restitution and the lengthy duration of the fraudulent activity.” Id. at 10. Addressing Petitioner’s arguments, the ALJ stated that “they do not serve as a basis to lessen the length of [Petitioner’s] exclusion.” Id. at 9.

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.).

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).

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Analysis

On appeal, Petitioner does not dispute that the I.G. was required to exclude him under section 1128(a)(1) of the Act for a minimum of five years and that the two aggravating factors relied on by the I.G. were established. Petitioner, however, contends that the ALJ erred in sustaining his 15-year exclusion. Petitioner raises three primary arguments before the Board. First, Petitioner claims the ALJ failed to consider the mitigating factor under 42 C.F.R. § 1001.102(c)(2) and asserts that his physical condition, as established by the record in his criminal case, reduced his culpability. NA at 3-7. Second, Petitioner contends the ALJ erred in applying the aggravating and mitigating factors, and in the assignment of “weight” to the factors. Id. at 8-10. Petitioner argues that a “downward adjustment” of the term of exclusion is necessary and requests “a reduction” of the purportedly “unreasonable 15-year exclusion.” Id. at 13-14. Third, Petitioner argues that the ALJ deprived him of due process by issuing a decision on the written record in lieu of holding an in-person hearing. Id. at 7.

The I.G. argues that the ALJ Decision should be affirmed. I.G. Br. The I.G. states that Petitioner was not prejudiced by the ALJ’s issuance of a decision on the written record nor denied due process. Id. at 6-8. The I.G. asserts that the ALJ properly rejected Petitioner’s arguments concerning aggravating and mitigating factors and that the mitigating factor at section 1001.102(c)(2) was not established and does not apply. Id. at 4-6. The I.G. specifically contends that while Petitioner’s “cooperation was present as a mitigating factor, it does not offset or outweigh the aggravating factors such that a 15-year exclusion term is unreasonable.” Id. at 4.

We affirm the ALJ Decision for reasons explained below.

I. The ALJ did not err in declining to convene an in-person hearing and issuing a decision on the written record.

Though Petitioner claims that the ALJ committed “clear error” by failing to hold an in-person hearing, we find no error in the ALJ’s process.

The ALJ’s September 17, 2024 “Order Following Prehearing Conference and Setting Briefing Schedule” explained the process for receiving witness testimony as follows:

I will hold a hearing only if a party asks to cross-examine a witness for whom the opposing party has provided written direct testimony . . . and I find the witness’ proposed testimony to be relevant and non-cumulative. Either party may request to cross-examine the opposing party’s witnesses, if any. However, I will assume that a party does not wish to cross-examine a witness unless the party expressly asks to do so. If I determine that a

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hearing is not necessary, then I will proceed to issue a written decision after the briefing schedule set out in this order is complete.

ALJ September 17, 2024 Order at 5. Even prior to this Order, the ALJ had directed that witness testimony be included in a party’s prehearing exchange as “written direct testimony.” ALJ Standing Prehearing Order at 3 (citing 42 C.F.R. §§ 1005.8, 1005.16). Thus, all direct testimony had to be submitted in writing, and the ALJ would hold an in-person hearing only if either party sought to cross-examine a witness for whom the opposing party submitted written direct testimony.⁴

Petitioner did not object to the scheduling order and filed his own written direct testimony. The I.G. did not submit written direct testimony. Despite Petitioner’s filing of written direct testimony, the I.G. did not request cross-examination. Because cross-examination was not requested, no in-person hearing was held. We find no error in this result. See, e.g., Ilya Kogan, DAB No. 3034, at 3-6 (2021) (finding no error in issuance of decision on the written record without in-person hearing where neither party requested cross-examination).

The written direct testimony process is authorized by regulation and permits testing of credibility in cross-examination, had the I.G. chosen to cross-examine Petitioner. 42 C.F.R. § 1005.16(b). Petitioner, however, seems to contend that the ALJ denied him due process because the ALJ did not take in-person testimony to bolster Petitioner’s position (which the ALJ found unsupported on the record) that the mitigating factor at 42 C.F.R. § 1001.102(c)(2) was established. Petitioner was not precluded from presenting written direct testimony (and did so in the form of “Petitioner’s Declaration,” P. Ex. 5) or other evidence in support of his position and was not denied due process. We find no basis to conclude that the ALJ erred in applying the established regulatory process and the ALJ’s pre-hearing orders.

Therefore, we conclude that no in-person hearing was necessary, and that the ALJ did not err in issuing a decision on the written record.

II. The evidence established two aggravating factors under 42 C.F.R. § 1001.102(b) and one mitigating factor under section 1001.102(c).

The ALJ found that the I.G. proved the applicability of two aggravating factors at 42 C.F.R. § 1001.102(b)(1)-(2) (financial loss to government programs; duration of criminal conduct), and Petitioner does not dispute that these aggravating factors were established based on the record evidence. ALJ Decision at 6-7; see generally NA. We find no error

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in the ALJ’s findings regarding the establishment of the two aggravating factors at 42 C.F.R. § 1001.102(b)(1)-(2).

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). The ALJ correctly 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 7-8. The ALJ rejected Petitioner’s argument that the mitigating factor under section 1001.102(c)(2) should be considered to further reduce the length of his exclusion. Id. The ALJ recognized Petitioner’s “very serious health conditions” but found “no evidence in the record showing that Petitioner’s health conditions affected his culpability.” Id. at 8.

Petitioner argues that the ALJ neglected to consider “Petitioner’s health conditions . . . which the Sentencing Court clearly considered in reducing his sentence and therefore it follows that the Sentencing Court considered these health conditions as reducing Petitioner’s culpability.” NA at 3-4. The records from Petitioner’s criminal case, however, including the transcript of Petitioner’s sentencing hearing, do not establish that the mitigating factor based on an individual’s “physical condition before or during the commission of the offense” applies. 42 C.F.R. § 1001.102(c)(2). Specifically, we find no evidence that “the court determined that” Petitioner’s physical condition “reduced [his] culpability” for the criminal offenses to which he pled guilty, as section 1001.102(c)(2) requires. ALJ Decision at 7-8; see Patel v. Shalala, 17 F. Supp. 2d 662, 667 (W.D. Ky. 1998) (noting that section 1001.102(c)(2) “clearly requires a court finding of lessened culpability”). Though Petitioner claims that both his counsel and the U.S. Probation Department “made a point of referencing Petitioner’s medical conditions to reduce the sentence” he received for his criminal offense, Petitioner points to no indication that the sentencing court considered these conditions as a factor to reduce his criminal culpability. NA at 4.

The record confirms that both Petitioner and the U.S. Probation Department mention Petitioner’s health conditions in the context of his criminal sentencing; they do not indicate, however, that the Court found the disorders reduced Petitioner’s culpability for defrauding multiple health insurance programs and paying kickbacks for patient referrals. Cf. Joseph M. Rukse, Jr., R.Ph., DAB No. 1851, at 8-9 (2002) (“a provision in a sentencing order establishes only that the sentencing judge recognized that the offender was currently suffering from substance abuse; it does not establish, in and of itself, that the judge found the offender’s culpability to be reduced as a result of a condition that existed at the time of the offense”). The sentencing transcript indicates that while the Court considered “substantial mitigating factors,” the decision to sentence Petitioner to probation was based on Petitioner’s cooperation with authorities (which the I.G. applied here as a mitigating factor), and also by a desire to avoid “unwarranted sentencing disparities with other cooperating defendants . . . for similar conduct.” I.G. Ex. 7, at 22-

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24. The sentencing transcript reveals no explicit consideration by the Court of Petitioner’s health in the imposition of a non-custodial sentence. See id. at 22.

Thus, while we acknowledge that the record supports that Petitioner has health conditions, including hypertrophic cardiomyopathy and cutaneous T-cell lymphoma,

Petitioner has not shown that the Court found Petitioner’s physical conditions reduced his culpability or that such a finding can reasonably be inferred from the record. Petitioner’s health conditions therefore cannot be considered a mitigating factor for reducing his exclusion period under 42 C.F.R. § 1001.102(c)(2). The ALJ did not err in determining that this mitigating factor was not established, does not apply, and cannot be considered to further reduce the length of Petitioner’s exclusion.

III. The ALJ’s determination that Petitioner’s 15-year exclusion is reasonable is supported by substantial evidence and comports with the law.

“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. Hussein Awada, M.D., DAB No. 2788, at 5 (2017). 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 also 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 15-year exclusion “is not unreasonable based on the presence of one mitigating factor and two aggravating factors” in this case. ALJ Decision at 10. Concerning 42 C.F.R. § 1001.102(b)(1), the ALJ summarized that Petitioner and his co-conspirators submitted some $11.9 million in false claims to Medicare and Medicaid, with Petitioner and his company being “paid over $3.9 million for those claims,” making the total intended loss “239 times the $50,000 threshold” established by the regulation, with “Petitioner’s portion alone” of the actual loss being “over 78 times the threshold.” Id. at 6; see 42 C.F.R. § 1001.102(b)(1) ($50,000 threshold includes financial losses that the “acts resulting in the conviction, or similar acts . . were intended to cause”). As further explained below, the ALJ also appropriately considered the duration of Petitioner’s criminal conduct as an aggravating factor and Petitioner’s cooperation with authorities as a mitigating factor.

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A. Significant program loss, evidenced by the Court’s imposition of a $3.9 million restitution obligation, weighs heavily in favor of a 15-year exclusion.

The ALJ did not err in determining that the aggravating factor at 42 C.F.R. § 1001.102(b)(1) concerning financial losses to government agencies and programs supports an exclusion period far longer than the five-year minimum. The Court ordered Petitioner to pay $3,949,775.28 in restitution to Medicare and Medicaid (in addition to $276,541 to the IRS) and, as the ALJ rightly recognized, payment of restitution “constitutes proof of the amount of financial loss to a government program.” I.G. Ex. 3, at 7; ALJ Decision at 6; 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).

The Board has long recognized that “the substantial amount of program loss supports a significant increase in the five-year minimum exclusion period.” Vinod Chandrashekhar Patwardhan, DAB No. 2454, at 6-7 (2012). As the ALJ noted, the Court imposed a restitution obligation of $3,949,775.28, and the Board has upheld giving considerable weight to financial losses that were significantly smaller. ALJ Decision at 6; see, e.g., Samirkumar Shah, M.D., DAB No. 3111, at 10-11 (2023) (upholding a 27-year exclusion term after a $1,234,983.60 loss); Jeremy Robinson, DAB No. 1905, at 12 (2004) (reinstating a 15-year length of exclusion for a $205,000 loss).

Governmental losses well exceeding the $50,000 threshold can justify lengthy exclusions. See, e.g., Eric X. Alonso, DAB No. 3186, at 10 (2025) (“large multiples of the applicable threshold for consideration support significant prolongation of an exclusion period”); Phong Hung Tran, M.D., DAB No. 3148 at 20 (2024) (“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 an “exceptional” factor warranting “significant weight”); Laura Leyva, DAB No. 2704, at 11 (2016) (loss amount of “over 40 times” the $5,000 threshold then in effect was “an ‘exceptional aggravating factor’ to be accorded significant weight”), 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 holdings by treating the huge losses in this case as substantial support for Petitioner’s 15-year period of exclusion.

Furthermore, the regulation calls for consideration of not only actual financial losses to a government agency or program, but also “intended” losses. 42 C.F.R. § 1001.102(b)(1). The ALJ found, and the record shows, that Petitioner and his co-conspirators submitted

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over $11.9 million in false claims to Medicare and Medicaid, 239 times greater than the $50,000 threshold, and Petitioner admits that they “submitted more than $12 million in claims to Medicare and Medicaid.” ALJ Decision 6 (citing I.G. Ex. 6, at 3); I.G. Ex. 2, at 7.

B. The 7-year duration of Petitioner’s criminal scheme supports the imposition of the 15-year exclusion term.

Regarding section 1001.102(b)(2), the ALJ noted that “[i]t is undisputed that the acts that resulted in Petitioner’s conviction occurred from approximately February 2009 to March 2016,” holding that “[p]articipating in criminal activity for approximately seven years is indicative of deliberate participation and not merely a temporary lapse in judgment.” ALJ Decision at 7.

Accordingly, 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’s criminal conduct lasted for over seven years, from February 2009 through March 2016. I.G. Ex. 6, at 3. Participation in a lengthy criminal scheme – like the one Petitioner engaged in – 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. Petitioner’s multi-year long scheme – in addition to the 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 scheme that could be expected to cause repeated misrepresentations and repeated harm over a period of time evidences a continuing lack of integrity.” Donald A. Burstein, Ph.D., DAB No. 1865, at 8 (2003).

C. The only applicable mitigating factor is Petitioner’s cooperation with authorities, which was appropriately considered by the I.G. in its imposition of the 15-year exclusion term.

Turning to mitigation, the ALJ correctly summarized that “the only mitigating factor that may be considered in this case is Petitioner’s cooperation with authorities.” ALJ Decision at 8. Petitioner shows no error in the ALJ’s weighing of the mitigating factor in 42 C.F.R. § 1001.102(c)(3). NA at 10. Petitioner argues that “cooperation provided by this Petitioner was so extensive and for such a long period of time that the ALJ should have given it more weight than was accorded.” See id. Petitioner’s cooperation has some mitigating effect, but we reject his argument, as we have rejected comparable arguments, 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

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a significant mitigating factor.” 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.

Furthermore, the ALJ acknowledged 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[.]” ALJ Decision at 7. The ALJ also expressly found that “the [I.G.] noted that Petitioner’s exclusion would have been substantially longer if not for this mitigating factor.” Id. (citing I.G. Reply Br. to ALJ at 2). Petitioner establishes no error in the weighing of this mitigating factor. Cf. Tran at 21 (holding that where an 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). We find no error in the ALJ’s conclusion that the single mitigating factor of cooperation does not completely negate the two aggravating factors in this case. ALJ Decision at 9 (“I am convinced that the [I.G.] considered the mitigating factor in determining the length of Petitioner’s exclusion and would have imposed a considerably longer exclusion, but for Petitioner’s cooperation with authorities.”).

Petitioner claims that the 15-year term of exclusion “render[s] his ability to work impaired effectively for the remainder of his working life” and “effectively constitutes a lifetime ban.” NA at 4, 13. However, the Board has explained that “a period of exclusion for a finite term is not equivalent to a lifetime ban.” Zahid Imran, M.D., DAB No. 2680, at 14 (2016). To the extent that Petitioner claims that the term of exclusion would prevent him from returning to practice due to his age or health conditions, the Board addressed a similar argument in Imran, and found that although “a return to practice may be unlikely for th[e] Petitioner,” his “age is not relevant to the question of the reasonableness of the period of exclusion because it is not a mitigating factor.” Id. at 14; see also Shah at 13 n. 6. Petitioner’s age does not serve as a mitigating factor and is irrelevant in determining the reasonability of the exclusion, and, as stated above, the record does not demonstrate that the Court determined Petitioner had a health condition that reduced his criminal culpability. See Dr. Frank R. Pennington, M.D., DAB No. 1786, at 6 (2021) (“the criminal proceedings record must show that the criminal court determined that a mental, emotional or physical condition reduced culpability for the crime before mitigation is found”).

We conclude that the ALJ’s upholding of Petitioner’s 15-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

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multi-year fraud scheme – which necessitated the payment of millions of dollars of restitution to Medicare and Medicaid – 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, 15 years is not an unreasonable exclusion period under these circumstances.

Conclusion

We affirm the ALJ Decision.

Endnotes

¹ The current version of the Act is at https://www.ssa.gov/OP_Home/ssact/ssact-toc.htm. Each section of the Act on that website contains a reference to the corresponding United States Code chapter and section. Cross-reference tables for the Act and the United States Code is at https://www.ssa.gov/OP_Home/comp2/G-APP-H.html.

² This section draws from the record to provide context but does not replace or modify the ALJ’s findings.

³ The ALJ required that all witness testimony be submitted as written direct testimony and that a hearing would be held “only if a party asks to cross-examine a witness for whom the opposing party has provided written direct testimony (see section 4(c)(ii) above) and [the ALJ] find[s] the witness’ proposed testimony to be relevant and non-cumulative.” ALJ Order Following Prehearing Conference and Setting Briefing Schedule at 5.

⁴ The regulations expressly permit the ALJ to admit testimony in the form of a sworn written statement instead of in person, provided the written testimony of the witness is exchanged as required by section 1005.8. 42 C.F.R. § 1005.16(b).