Claudia Haro, DAB No. 3218 (2025)

FINAL DECISION ON REVIEW OF
ADMINISTRATIVE LAW JUDGE DECISION

Claudia Haro (Petitioner) appealed the July 9, 2025 decision of an Administrative Law Judge (ALJ) upholding the determination of the Inspector General (I.G.) to exclude Petitioner from participating in all federal health care programs for seven years under section 1128(a)(1) of the Social Security Act (Act).1  Claudia Haro, DAB CR6727 (2025) (ALJ Decision).  The ALJ concluded that the I.G. lawfully excluded Petitioner under section 1128(a)(1) based on her federal conviction for conspiracy to offer or pay illegal remuneration to induce the referral or certification of persons for items and services compensable under Medicare and a state Medicaid program.  The ALJ further concluded that the seven-year exclusion imposed by the I.G. was not unreasonable based on the application of one aggravating factor and the absence of any mitigating factor.  We affirm the ALJ Decision because it is supported by substantial evidence and free of legal error.

Legal Background

Section 1128(a)(1) of the Act requires the Secretary of the Department of Health and Human Services (Secretary) to exclude from participation in any federal health care program an individual who has been “convicted of a criminal offense related to the delivery of an item or service under [Medicare] or under any State health care program” (such as a Medicaid program).2  Act § 1128(a)(1); see also 42 C.F.R. § 1001.101(a).3  An individual is “convicted” within the meaning of section 1128(a)(1) when a “a judgment of

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conviction has been entered against the individual . . . by a Federal, State, or local court” or “when a plea of guilty . . . by the individual . . . has been accepted by a Federal, State, or local court.”  Act § 1128(i)(1), (3).  “Although a mandatory exclusion [under section 1128(a)] is based on a criminal conviction, the exclusion’s purpose is ‘not to punish the wrongdoer’” but rather to “protect federal health care programs and program beneficiaries from ‘untrustworthy providers.’”  Kimberly Jones, DAB No. 3033, at 2 (2021) (quoting Edwin L. Fuentes, DAB No. 2988, at 14 (2020), aff’d, Fuentes v. Becerra, No. 4:20-cv-00026, 2021 WL 4341115 (W.D. Va. Sept. 23, 2021)); see also Shaun Thaxter, DAB No. 3053, at 20 (2021) (specifying the goals of exclusion).

The exclusion statute provides that a mandatory exclusion under section 1128(a) “shall be not less than five years.”  Act § 1128(c)(3)(B); see also 42 C.F.R. § 1001.102(a).  The I.G. may extend an exclusion beyond the statutory minimum if any of the aggravating factors described in 42 C.F.R. § 1001.102(b) is present.  If one or more aggravating factors justify an exclusion longer than the statutory minimum, then certain mitigating factors listed in 42 C.F.R. § 1001.102(c) may be considered as a basis for reducing the exclusion period to no less than five years.

An excluded individual may request a hearing before an ALJ, but only on the issues of (i) whether the “basis for” exclusion exists, and (ii) whether “[t]he length of exclusion is unreasonable.”  42 C.F.R. §§ 1001.2007(a), 1005.2(a).  The underlying conviction is not reviewable or subject to collateral attack on substantive or procedural grounds.  Id. § 1001.2007(d).  An ALJ is authorized to schedule a hearing; examine witnesses; and receive, rule on, and exclude or limit evidence.  Id. § 1005.4(b).  “The ALJ will issue an initial decision, based only on the record, which will contain findings of fact and conclusions of law.”  Id. § 1005.20(a).

A party dissatisfied with the ALJ’s initial decision may appeal that decision to the Board.  Id. § 1005.21(a).  The Board may decline to review the case, or may affirm, reverse, or remand any exclusion determined by the ALJ.  Id. § 1005.21(g).

Case Background

Information in this section is drawn from the ALJ Decision and the record before the ALJ and is not intended to substitute for the ALJ’s findings.

From approximately 2010 to 2017, Petitioner was an employee of one or more entities referred to in the record as the “E.P. Entities,” which did business in and around Hidalgo County, Texas.  ALJ Decision at 2; I.G. Ex. 3, at 2, ¶ 4.  The E.P. Entities provided healthcare-related services and products, such as home health services, durable medical equipment, and adult day care, to Medicare and Medicaid beneficiaries.  ALJ Decision at 2; I.G. Ex. 3, at 2, ¶ 4.

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In 2019, a federal grand jury issued a two-count indictment against Petitioner.  Count one charged Petitioner with conspiracy to offer or pay illegal remuneration, in violation of 18 U.S.C. § 371 (federal conspiracy statute) and section 1128B(b)(2) of the Act (federal anti-kickback statute).  I.G. Ex. 3, at 2; see also Hanlester Network, DAB No. 1275, at 10-16 (1991) (discussing section 1128B(b)).  Count two charged Petitioner with making a false statement to federal investigators in violation of 18 U.S.C. § 1001(a)(2).  I.G. Ex. 3, at 5.

Count one of Petitioner’s indictment generally alleges:

From in or about 2011 through in or about September 2016, the exact dates being unknown to the Grand Jury, . . . [Petitioner] did knowingly and willfully combine, conspire, confederate and agree with others . . . to violate [section 1128B(b)(2)], by knowingly and willfully offering and paying remuneration, specifically, kickbacks and bribes . . . in return for referring individuals for the furnishing and arranging for the furnishing of any item and service for which payment may be made in whole or in part by a Federal health care program.

Id. at 2, ¶ 7.  Count one further states that the “manner and means” used to accomplish the conspiracy’s objectives included the following:

• Petitioner (and her co-conspirators) “paid remuneration to physicians, in cash and in kind, in exchange for the physicians’ certification of beneficiaries for services and supplies for which the E.P. Entities would submit claims to Medicare and Medicaid.”  Id. at 3, ¶ 9(d); see also id. at 5, ¶ 10(f) (describing Petitioner’s “overt act” of delivering cash payments to a physician in return for that physician’s “signature on documents certifying Medicare and Medicaid beneficiaries for the provision of services and supplies through one or more of the E.P. Entities”).
• Petitioner (and her co-conspirators) “paid individuals in return for the referral of patients to E.P. Entities for the provision of services and supplies for which the E.P. Entities would submit claims to Medicare and Medicaid.”  Id. at 3, ¶ 9(b); see also id. at 5, ¶ 10(h) (describing Petitioner’s “overt act” of delivering payments of $350 to an individual “in return for each Medicare beneficiary referred for the provision of services and supplies by an E.P. entity”).

On July 30, 2021, in accordance with a written plea agreement, Petitioner pled guilty in a United States District Court to count one of the indictment.  I.G. Ex. 4, at 1; I.G. Ex. 2.  The district court accepted the plea, dismissed count two, and sentenced Petitioner to three years of probation.  I.G. Ex. 4, at 1-2.

On November 29, 2024, the I.G. notified Petitioner that she was excluded from participation in federal health care programs for seven years pursuant to section

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1128(a)(1) of the Act because her conviction was for a criminal offense related to the delivery of an item or service under Medicare or a State health care program.  I.G. Ex. 1, at 1.  The I.G. also informed Petitioner that it added two years to the minimum five-year exclusion period based on the aggravating factor in 42 C.F.R. § 1001.102(b)(2) because the “‘acts that resulted in [Petitioner’s] conviction, or similar acts, were committed over a period of one year or more.’”  Id. (quoting section 1001.102(b)(2)).

ALJ Proceedings and Decision

Petitioner filed a request for hearing with the ALJ to contest her exclusion.  The ALJ issued a pre-hearing order and a letter notifying the parties of a pre-hearing conference.  ALJ Decision at 2.  During the pre-hearing conference, the ALJ established a schedule for the parties to make pre-hearing exchanges.  Id.

The I.G. filed a pre-hearing exchange consisting of a brief and four exhibits (mainly records of Petitioner’s criminal prosecution).  The I.G. asserted in its pre-hearing brief that:

• Petitioner’s conspiracy conviction requires Petitioner’s exclusion under section 1128(a)(1) of the Act;
• The “criminal record” shows the presence of the aggravating factor in 42 C.F.R.   § 1001.102(b)(2) – specifically, that conduct for which Petitioner was convicted spanned approximately five years, exceeding the one-year threshold for applying that factor; and
• A seven-year exclusion is not unreasonable given the established aggravating factor and the absence of a mitigating factor.

I.G. Informal Br. at 1-4.

Petitioner’s pre-hearing exchange consisted only of a brief, where she asserted that:

• She is not subject to exclusion under section 1128(a)(1) because the offense to which she pled guilty was not “‘related to the delivery of an item or service’ in the manner required by the statute” (Pet. Informal Br. at 1-2);
• The aggravating factor identified by the I.G. does not justify lengthening the exclusion period because her role in the conspiracy was “non-managerial, non-clinical, and not escalating” (id. at 3);

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• Certain other facts relevant to her sentencing “warrant mitigation” of the exclusion (id.); and
• The conduct underlying her offense falls within the scope of section 1128(b)(7), a provision authorizing the imposition of a “permissive” (non-mandatory) exclusion for acts that violate the anti-kickback statute (id. at 2).

Based on these and other contentions, Petitioner asked the ALJ to “reduce the exclusion to the statutory minimum of five years, or in the alternative, treat [her] offense under the permissive exclusion track and impose no more than a two-year exclusion.”  Id. at 4.

The ALJ admitted the I.G.’s exhibits into evidence, determined that an in-person hearing was unnecessary because neither party had submitted written direct testimony from any proposed witness, and, consistent with the ALJ’s pre-hearing conference order (¶ 8), proceeded to decide the case based “on the written record.”  ALJ Decision at 2.4

The ALJ made the following findings and conclusions:

• Petitioner is subject to a statutory minimum five-year exclusion under sections 1128(a)(1) and 1128(c)(3)(B) of the Act because she was convicted of a criminal offense, and the nature of that offense – participation in a conspiracy that “involved paying physicians for the referral of Medicare and Medicaid beneficiaries” – shows the offense was related to the delivery of items and services under Medicare or a State health care program (id. at 5-6);
• The I.G. established the existence of the aggravating factor in 42 C.F.R.  § 1001.102(b)(2) – namely, acts resulting in conviction (or similar acts) committed over a period of one year or more – and thus lawfully relied on that factor to lengthen the exclusion period beyond the statutory minimum five years (id. at 7);
• Petitioner failed to establish the existence of any mitigating factor specified in 42 C.F.R. § 1001.102(c) (id. at 6-7); and
• A seven-year exclusion – two years longer than the statutory minimum – is not unreasonable, and “falls within a reasonable range,” based on the application of the established aggravating factor and the absence of any legally relevant mitigating factor (id. at 7-9).

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In assessing the reasonableness of the exclusion, the ALJ found that Petitioner had participated in the conspiracy “for over five years, which shows deliberate behavior and not merely a temporary lapse in judgment,” and that “[t]he length of Petitioner’s health care fraud scheme represents more than a short-lived lapse of integrity and reflects negatively on her trustworthiness.”  Id. at 8.

Finally, the ALJ rejected Petitioner’s suggestion that she be excluded under section 1128(b)(7) rather than section 1128(a)(1).  Id. at 7.  “While it is true that some criminal offenses meet the criteria under both the permissive and mandatory exclusion provisions,” the ALJ stated, the “Act requires the IG to exclude an individual convicted of a crime subject to mandatory exclusion.”  Id. (citing cases).

Petitioner timely filed a notice of appeal and a supporting brief.

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.”  42 C.F.R. § 1005.21(h).  The Board reviews a disputed issue of law as to whether the ALJ decision “is erroneous.”  Id.  The term “substantial evidence” means “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.”  Ellen L. Morand, DAB No. 2436, at 3 (2012) (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938))).

Analysis

Petitioner objects to the ALJ Decision on four main grounds.  First, while not disputing that she was convicted of a criminal offense for purposes of section 1128(a)(1), Petitioner contends that the ALJ erroneously found that her offense met that provision’s condition of being related to delivery of an item or service under Medicare or a state health care program.  Notice of Appeal and Accompanying Brief (P. Br.) at 1.  Second, while not disputing the ALJ’s finding that the I.G. established the presence of the aggravating factor in 42 C.F.R. § 1001.102(b)(2), Petitioner contends that the ALJ  “misapplied” that factor by treating it “as inherently weighty” without assessing it in the “context” of allegedly unconsidered facts and circumstances that render a two-year extension of the statutory minimum exclusion unreasonable.  Id. at 2, 4-6.  Third, Petitioner acknowledges that 42 C.F.R. § 1001.102(c) “narrowly defines mitigating factors” but argues that “the ALJ erred by excluding sentencing context.”  Id. at 2.  Fourth, Petitioner disputes the ALJ’s conclusion that the I.G. has “no discretion to apply” the permissive exclusion in section 1128(b)(7) of the Act when the mandatory exclusion provision in section 1128(a)(1) applies.  Id.  Based upon these alleged errors by the ALJ, Petitioner requests that the Board either:  (i) reduce the exclusion to five years; (ii) remand the case to the ALJ to reconsider whether a seven-year exclusion is reasonable based on a “qualitative

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assessment” of the aggravating factor; or (iii) impose a two-year permissive exclusion under section 1128(b)(7) of the Act.  Id.

The I.G. responds that the Petitioner is subject to exclusion under section 1128(a)(1) because her participation in an illegal remuneration scheme has the “requisite nexus” to the delivery of health care under Medicare or a state health care program.  Response Br. at 5-7.  The I.G. further contends that “given clear evidence of the presence of the aggravating factor at 42 C.F.R. § 1001.102(b)(2) and no evidence of mitigating factors, [the] ALJ . . . properly determined that the seven-year period of exclusion was not unreasonable.”  Id. at 8-9.  In addition, the I.G. contends that the ALJ correctly rejected Petitioner’s suggestion that she be excluded under a permissive exclusion provision in section 1128(b).  Id. at 6.

As discussed below, we hold that Petitioner’s offense meets section 1128(a)(1)’s criteria for a mandatory exclusion.  We also hold that the ALJ properly assigned substantial weight to the established aggravating factor, did not fail to consider circumstances relevant to assessing that factor, correctly recognized the absence of any mitigating factor, and committed no error in concluding that a seven-year exclusion was not unreasonable.  Finally, we reject Petitioner’s suggestion that a two-year permissive exclusion be imposed in lieu of the mandatory one imposed by the I.G.

I.        Petitioner’s criminal offense is related to the delivery of an item or service under Medicare or a State health care program.

Section 1128(a)(1) mandates exclusion of an individual convicted of a “criminal offense related to the delivery of an item or service” under Medicare or under a State health care program such as Medicaid.  “The Board has repeatedly held that the phrase ‘related to’ within the context of section 1128(a)(1) requires only that a common-sense nexus exists between the offense and the delivery of a health care item or service under” a federal or State health care program.  Summit S. Shah, M.D., DAB No. 2836, at 6 (2017); Thaxter at 11.  “When determining whether the requisite nexus exists, an ALJ may consider evidence as to the nature of an offense, including the facts upon which the conviction was predicated.”  Thaxter at 11 (internal quotation marks omitted); see also Miguel A. Garcia, DAB No. 3098, at 9 (2023).

The evidence submitted by the I.G., including Petitioner’s indictment and the district court’s judgment of conviction, establishes that Petitioner pled guilty to conspiring with others to violate the anti-kickback statute by:  (1) paying individuals to refer patients to the E.P. Entities (healthcare providers) for items and services that those entities billed to Medicare and the Texas Medicaid program; and (2) paying physicians to certify Medicare and Medicaid “beneficiaries” for services and supplies that the E.P. Entities billed to those programs.  I.G. Ex. 3, at 3, ¶ 9.  In other words, Petitioner unlawfully conspired to make payments to induce or reward referrals or certifications that facilitated or enabled

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the provision (delivery) of items and services billed to Medicare and Medicaid.  These circumstances plainly show a “common-sense nexus” between Petitioner’s offense (conspiring to offer or pay illegal remuneration) and delivery of items or services under Medicare or a State health care program.

The required nexus can also be found in the anti-kickback statute’s description of the proscribed acts that Petitioner was convicted of conspiring to commit.  The relevant  provision of that statute prohibits the offer or payment of “any remuneration” to induce:  (1) the referral of an individual “for the furnishing or arranging for the furnishing” – that is, for the delivery of, or for arranging the delivery of – an item or service for which payment may be made under a federal health care program; or (2) the “ordering” or “arranging for” – that is, procuring the delivery of – an item or service compensable by a federal health care program.  Act § 1128B(b)(2).5  In addition, the required nexus can be inferred from a key purpose of the anti-kickback statute, which is to ensure that decisions by medical providers and others concerning the provision (delivery) of health care compensable by Medicare and State health care programs are based not on self-interest but on considerations of cost, quality of care, and medical necessity.  United States v. Patel, 778 F.3d 607, 612 (7th Cir. 2015).

The ALJ’s conclusion that Petitioner’s offense falls within the scope of section 1128(a)(1) is consistent with Board decisions upholding exclusions under that provision for other types of violations of the anti-kickback statute, such as receiving remuneration for referrals for healthcare under Medicare and Medicaid.  See Kimbrell Colburn, DAB No. 2683, at 6 (2016) (holding that supplier’s guilty plea to concealing or not disclosing “‘remunerations’ prohibited by the federal anti-kickback statute” confirmed that the offense was “related to delivery of an item or service under Medicare”); Boris Lipovsky, M.D., DAB No. 1363, at 6 (1992) (holding that the offense of “knowingly and willfully receiving any remuneration in return for ordering, or arranging for ordering, any item for which payment may be made under Medicaid” was an offense related to the delivery of an item or service under Medicaid).

Petitioner argues that “[t]he ALJ misapplied [section] 1128(a)(1) by equating [her] clerical role (delivering payments) with ‘delivery’ of services without analyzing whether such tasks meet the statutory threshold.”  P. Br. at 1.  By distinguishing her “delivery” of “payments” from delivery of healthcare “services,” Petitioner implies that she cannot be excluded under section 1128(a)(1) because she did not personally participate in delivering health care in committing her offense.  That suggestion is meritless because section 1128(a)(1) does not require such participation, as illustrated by the following history of that provision:

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Prior to 1987, section 1128(a)(1) authorized a mandatory exclusion only when “the Secretary determines that a physician or other individual has been convicted . . . of a criminal offense related to such individual’s participation in the delivery of medical care or services . . . .”  Omnibus Reconciliation Act of 1980, Pub. L. No. 96-499, § 913 (1980) (emphasis added).  Pursuant to [section 2 of the Medicare and Medicaid Patient and Program Protection Act of 1987, Pub. L. No. 100-93, 101 Stat. 680-81], however, Congress “substituted an entirely new section 1128 into the Act,” which replaced the wording above to mandate exclusion under section 1128(a)(1) whenever “[a]ny individual or entity” had been “convicted of a criminal offense related to the delivery of an item or service” under a covered program. . . .  The amended statutory language thus eliminated the requirement that the criminal offense relate to the convicted individual’s “participation” in delivering “medical care or services.”  Accordingly, section 1128(a)(1) “now mandates exclusion when an individual is convicted of a criminal offense ‘related to the delivery of an item or service’ under the Medicare and Medicaid programs, not just those individuals who participated in the delivery of such services.”

Thaxter at 16-17 (citations omitted).  In short, “section 1128(a)(1) applies even if the [convicted individual’s] offense does not involve . . . [that] individual’s own delivery of an item or service.”  Id. at 16; see also Niranjana B. Parikh, M.D., DAB No. 1334, at 5 (1992) (noting that the Board has “consistently recognized common sense connections between an offense and the delivery of an item or service, even if the individual at issue does not physically deliver the item or service”); James O. Boothe, DAB No. 2530, at 4 (2013) (“An offense may be ‘related to’ the delivery of an item or service even if the offense did not directly involve the delivery of items or services.”).

We reject Petitioner’s suggestion that to sustain her exclusion under section 1128(a)(1), the ALJ needed to determine that she posed a risk of harm to federal health care programs despite what she alleges was her “non-managerial” and “non-clinical” role in the conspiracy.  See P. Br. at 1 (asserting that the ALJ “failed to explain why a non-clinical, non-managerial role materially increases program risk”).  No such determination was required because it is “the fact of [a] conviction” meeting section 1128(a)(1)’s criteria that warrants, and indeed requires, Petitioner’s exclusion.  Peter J. Edmonson, DAB No. 1330, at 4 (1992) (“Congress intended the Secretary to exclude potentially untrustworthy individuals or entities based on criminal convictions.”); Timothy Wayne Hensley, DAB No. 2044, at 12 (2006) (rejecting claim “that to impose a mandatory exclusion the I.G. must find that the offense posed a risk of harm to a covered program”).  By mandating a minimum five-year exclusion for individuals convicted of offenses that relate to the delivery of items or services under Medicare and State health care programs, Congress implicitly determined that such individuals are, as a matter of law, “too untrustworthy to participate in those programs for at least” the statutory minimum

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exclusion period.  Mark B. Kabins, M.D., DAB No. 2410, at 6 (2011), rev’d on other grounds, Kabins v. Sebelius, No. 2:11-cv-01742, 2012 WL 4498295 (D. Nev. Sept. 28, 2012); see also Susan Malady, R.N., DAB No. 1816, at 9 (2002) (stating that an individual convicted of an offense for which Congress has mandated a minimum five-year exclusion is “presumed by Congress to be untrustworthy and a threat to federal health care programs and their beneficiaries and recipients”); Joann Fletcher Cash, DAB No. 1725, at 10 (2000) (same).

II.        The ALJ properly determined that the seven-year exclusion imposed by the I.G. is not unreasonable based on a proven aggravating factor and the absence of any mitigating factor.

In reviewing a mandatory exclusion longer than the five-year statutory minimum, an ALJ’s role is to “‘review[] the length of an exclusion de novo to determine whether it falls within a reasonable range, given the aggravating and mitigating factors and the circumstances underlying them.’”  Rosa Velia Serrano, DAB No. 2923, at 8 (2019) (quoting Sushil Aniruddh Sheth, M.D., DAB No. 2491, at 5 (2012), summarily aff’d in part, Sheth v. Sebelius, No. 13-cv-0448, 2014 WL 11813597 (D.D.C. Jan. 10, 2014)).  “Such an evaluation ‘does not rest on the specific number of aggravating or mitigating factors or any rigid formula for weighing those factors, but rather on a case-specific determination of the weight to be accorded each factor based on a qualitative assessment of the circumstances surrounding the factors in that case.’”  Kimberly Jones at 7 (quoting Sheth at 5).  “‘An ALJ may not substitute his or her judgment for that of the I.G. or determine a ‘better’ exclusion period.’”  Id. at 8 (quoting Sheth at 5).  “Instead, the ALJ’s role is limited to considering whether the period of exclusion imposed by the I.G. was within a reasonable range, based on demonstrated criteria.”  Craig Richard Wilder, M.D., DAB No. 2416, at 8 (2011); see also 57 Fed. Reg. 3,298, 3,321 (Jan. 29, 1992) (deference to I.G.’s “broad discretion” in setting the length of an exclusion “is appropriate, given the [I.G.]’s vast experience in implementing exclusions”).  “Demonstrated criteria” are the aggravating or mitigating factors found to exist in the case.  Robert Kolbusz, M.D., DAB No. 2759, at 6 (2017).

Board review of an ALJ’s decision is governed by the same regulatory standards.  Chaim Charles Steg, DAB No. 3115, at 13 (2023).  Thus, the Board does not review the I.G.’s decision-making process in setting the length of an exclusion.  See Fuentes, DAB No. 2988, at 11.  Rather, the Board “review[s] whether the outcome of that process (the exclusion period set by the I.G. and affirmed by the ALJ) is unreasonable in light of the facts relating to the factors that the regulation specifies.”  Id.

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1. The ALJ properly assigned substantial weight to the established aggravating factor.

The ALJ assessed the reasonableness of the seven-year exclusion under the applicable review standard, recognizing that “it is the quality of the aggravating and mitigating factors that is most important when considering the length of the exclusion.”  ALJ Decision at 7-8 (citing 57 Fed. Reg. at 3,314-15).  Concerning the established aggravating factor – acts resulting in conviction (or similar acts) committed over a period of one year or more – the  ALJ found that Petitioner had “participated in the kickback scheme” alleged in the indictment “for over five years,” four years more than the threshold for finding the factor’s existence, and that the duration of her participation in the conspiracy “shows deliberate behavior and not merely a temporary lapse in judgment.”  Id. at 8.  These findings, which are uncontested, adequately support the ALJ’s conclusion that a seven-year exclusion falls within a reasonable range because they reflect that the ALJ assigned substantial weight to the aggravating factor based on a “qualitative assessment of the circumstances surrounding” that factor.  Kimberly Jones at 7.  The Board has held that an ALJ may “reasonably assign significant weight” to illegal conduct that occurred for even slightly longer than the one-year threshold for finding the aggravating factor in 42 C.F.R. § 1001.102(b)(2), and that “simply meeting th[at] threshold . . . is a clear indication of untrustworthiness.”  Hussein Awada, M.D., DAB No. 2788, at 8-10 (2017) (upholding 23-year exclusion based, in part, on illegal conduct committed over approximately 14 months).  Petitioner’s illegal conduct exceeded the threshold by four years, a circumstance reasonably found to exhibit a high degree of untrustworthiness.  Cesar M. Cubano-Martinez, DAB No. 3142, at 10 (2024) (holding that an ALJ properly assigned significant weight to the aggravating factor in section 1001.102(b)(2) based on the convicted individual’s “protracted criminal conduct” spanning approximately four years, a circumstance the ALJ found to exhibit “extreme untrustworthiness” and “sustained lack of integrity”); Rosa Velia Serrano at 9 (finding that participation in Medicaid fraud for four years amounted to “a protracted period of criminal conduct” that showed petitioner was “extremely untrustworthy”).

Petitioner suggests that the ALJ upheld the seven-year exclusion based solely on the existence of the aggravating factor without assessing the degree to which it showed a lack of trustworthiness.  P. Br. at 5-6 (asserting that the ALJ was required to “assess how each established factor bears on culpability and future program risk, not simply to lengthen the exclusion because a factor exists”).  To the contrary, the ALJ explicitly found that the aggravating factor showed a lack of trustworthiness, and her findings that Petitioner’s participation in the conspiracy involved “deliberate behavior” and “represents more than a short-lived lapse in integrity” make clear that the ALJ found the aggravating factor to reflect considerable untrustworthiness.

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2. In assessing the established aggravating factor, the ALJ did not fail to consider relevant facts and circumstances and correctly recognized the absence of any mitigating factor.

Petitioner contends that the ALJ’s “qualitative assessment” of the aggravating factor should have involved consideration of what she calls “risk-reducing circumstances.”  See P. Br. at 2, 3.  Those circumstances include the fact that the district court imposed a sentence of probation (in lieu of incarceration), did not impose a fine, did not restrict her employment as a condition of probation, and did not order payment of restitution (based on a finding of program loss).  Id. at 2-6.  They also include what Petitioner alleges was her “non-managerial,” “non-billing,” and “non-clinical” role in the conspiracy.  Id. at 1, 2, 3.  Petitioner submits that these circumstances “weaken . . . the probative force” of the aggravating factor and thereby demonstrate that an exclusion of no more than five years is reasonable.  Id. at 4-5, 6 (asserting that “[t]he absence of loss, incarceration, or supervisory authority can substantially temper the weight of duration”), and 7 (asserting that facts relating to her sentencing are “probative of” culpability and whether she poses “future risk” to federal programs).

The ALJ committed no error in not considering the cited circumstances, none of which constitutes a mitigating factor under 42 C.F.R. § 1001.102(c).  In assessing the established aggravating factor, the ALJ was obligated to make a case-specific determination of the factor’s weight – its gravity, magnitude, or seriousness – based on facts and evidence relating to the factor.  See Sheth at 5 (requiring an ALJ to make a case-specific determination of the weight to be accorded each established aggravating or mitigating factor based on a “qualitative assessment of the circumstances surrounding the factors”); Eugene Goldman, M.D., DAB No. 2635, at 8 (2015) (performing a qualitative assessment that considered the degree to which the individual’s involvement in a conspiracy exceeded the one-year threshold for finding the aggravating factor in section 1001.102(b)(2)).  In claiming that the ALJ should have considered the district court’s sentencing choices and other circumstances, Petitioner assumes that those circumstances are relevant to assessing the aggravating factor’s weight.  However, Petitioner identifies no basis for that assumption.  For example, Petitioner does not allege, much less demonstrate, that the district court’s sentencing choices were influenced by, or based on, findings relating to the duration of her involvement in the conspiracy.  Nor does Petitioner explain how her role in the conspiracy (whatever it may have been) makes her lengthy participation – her protracted “lapse in integrity” – less serious.

The Board considered an argument similar to Petitioner’s in Thaxter, which reviewed a ten-year exclusion under section 1128(a)(1).  In that case, the administrative law judge relied on the convicted individual’s six-month sentence of incarceration – an aggravating factor under section 1001.102(b)(5) – to sustain the ten-year exclusion.  Thaxter at 34-35.  The individual argued on appeal that the weight assigned the aggravating factor should be diminished in light of:  (1) the sentencing court’s statements about its reasons for

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imposing incarceration; (2) statements by the court that the individual was a “good person” who would not commit more crimes; and (3) the individual’s claim of non-culpability for the offense.  Id.  The Board rejected that contention, emphasizing that section 1001.102(b)(5) says nothing about a sentencing court’s rationale for imposing incarceration and narrowly focuses on the fact that an individual has received a sentence of incarceration.  Id.  The Board also held that the purported lack of personal culpability and favorable comments by the sentencing court also did not “diminish th[e] aggravating factor” and were not themselves legally relevant mitigating factors that could be a basis for reducing the exclusion imposed by the I.G.  Id. at 35.

As the convicted individual in Thaxter did, Petitioner argues that circumstances having no demonstrated relation to an aggravating factor should diminish or nullify the factor’s weight.  And, like the aggravating factor at issue in Thaxter, the aggravating factor in Petitioner’s case, section 1001.102(b)(2), is narrowly focused on a discrete fact – the length of time during which Petitioner committed the acts resulting in conviction, or similar acts.  Nothing in that regulation suggests that the factor’s weight must be judged based on aspects of the individual’s criminal sentencing or her specific role in the conspiracy.

In arguing that the ALJ’s assessment of the aggravating factor was deficient, Petitioner relies chiefly on Jeremy Robinson, DAB No. 1905 (2004) and Laura Leyva, DAB No. 2704 (2016).  However, both Robinson and Leyva held that an administrative law judge properly relied on that factor to sustain an exclusion longer than the statutory minimum five years.  Robinson held that felonious conduct spanning approximately three years, together with two other aggravating factors, sufficed to support a 15-year exclusion.  Robinson at 12.  Neither decision indicates that an administrative law judge or the Board must consider a convicted individual’s “sentencing context” (P. Br. at 6), or the individual’s role in the underlying offense, in determining the weight properly accorded to the aggravating factor.  Petitioner accurately asserts that Leyva directs ALJs and the Board to examine “the strength” of any proven aggravating factor (P. Br. at 6), but that is precisely what the ALJ did in this case.

Because the ALJ found the seven-year exclusion not unreasonable based on an appropriate qualitative assessment of the aggravating factor and no mitigating factors, Petitioner’s challenge to the exclusion’s length boils down to a request that we reduce it based on legally irrelevant facts or circumstances.  Under the governing regulations, if an aggravating factor justifies an exclusion longer than the statutory minimum five years, as it does here, then only the mitigating factors listed in section 1001.102(c) may be weighed against the aggravating factor to reduce the exclusion period to no less than five years.  Waleed Khan, DAB No. 3083, at 8-9 (2023); Thaxter at 35 (“[M]itigating factors that ALJs and the Board may consider are limited to those listed in the regulation . . . .”).  As Petitioner partly concedes, none of the circumstances she identifies – including her alleged minimal role in the offense (a circumstance about which the record contains no

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evidence) – is a listed mitigating factor.  P. Br. at 6 (acknowledging that “sentencing outcomes are not freestanding mitigating factors”).  And the Board has long held that the absence of an aggravating factor, such as a criminal sentence that does not include incarceration (see 42 C.F.R. § 1001.102(b)(5)), “‘is not itself a mitigating factor.’”  Chaim Charles Steg at 18 (quoting Goldman at 10).

Petitioner nonetheless contends that these circumstances must be considered because they tend to show she poses no risk of harm to federal health care programs.  P. Br. at 7 (asserting that the sentencing and other circumstances are “probative of culpability and future risk, even if not a listed mitigating factor”).  However, under the controlling regulations, a determination of the risk she poses to those programs must be based solely on an assessment and weighing of aggravating and mitigating factors listed in the regulation.  See 42 C.F.R. § 1001.102(b)-.102(c); Roji Esha, DAB No. 3076, at 28 (2022) (“[A]ggravating and mitigating factors reflect the degree or level of the untrustworthiness of the excluded individual or entity.” (internal quotation marks and ellipses omitted)); Joann Fletcher Cash at 15-16, 18 (discussing the role of aggravating and mitigating factors in determining the length of an exclusion exceeding the statutory minimum five years, and noting that the factors are “considerations . . . in evaluating the future trustworthiness” of the individual); Yolanda Hamilton, M.D., DAB No. 3061, at 19 (2022) (“General trustworthiness is not an independent basis, i.e., independent from the specified aggravating and mitigating factors, for determining whether the period of an exclusion is unreasonable.” (internal quotation marks and brackets omitted)).

3. Petitioner’s remaining contentions concerning the length of the exclusion are unpersuasive.

Petitioner further contends that the seven-year exclusion is unreasonable on three additional grounds, none of which we find persuasive.  First, Petitioner suggests that section 1128(b)(7) of the Act, which authorizes (without mandating) exclusion of an individual the Secretary determines has committed an act proscribed by the anti-kickback statute, “should inform the degree of any extension above five years.”  P. Br. at 4, 6, 7.  According to Petitioner, the “existence of a permissive pathway for [anti-kickback-statute]-related conduct” under section 1128(b)(7) shows that Congress recognized that an individual’s “culpability” for violations of that statute may vary, implying that she had low or diminished culpability for her offense, and rendering the seven-year exclusion unreasonable.  Id. at 7 (asserting that “permissive-exclusion framework . . . confirm[s] that any term above five years is not reasonable”).

Petitioner produces no legal authority to support this argument, which in any event is meritless because under the governing regulations, an individual’s degree of culpability for a criminal offense is not a mitigating factor in reviewing the reasonableness of an exclusion longer than the statutory minimum, except in circumstances that undisputedly do not exist here.  See 42 C.F.R. § 1001.102(c)(2) (allowing for mitigation if the record

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of the underlying criminal proceeding shows that the sentencing 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); Thaxter at 35 n.28.  Petitioner does not contend (and there is no evidence) that the section 1001.102(c)(2) mitigating factor applies.  Furthermore, Petitioner admitted culpability by pleading guilty to “knowingly and willfully” conspiring to violate the anti-kickback statute.  I.G. Ex. 3, at 2, ¶ 7; I.G. Ex. 2.

Second, Petitioner asserts that “[w]here the Inspector General proves only one aggravat[ing factor], the extension, if any, must be modest and supported by analysis showing why that factor meaningfully elevates risk [to federal programs] in the case at hand.”  P. Br. at 6 (italics added).  Petitioner cites no authority for that proposition, and we are unaware of any.  Depending on its magnitude or seriousness, a single aggravating factor may justify a substantial lengthening of the exclusion beyond the five-year minimum.  Salman Ali, DPT, DAB No. 3048, at 12 (2021) (“Any one of the three aggravating factors applied . . . may be considered an exceptional aggravating factor that could have supported a significant extension of the mandatory minimum exclusion periods.” (internal quotation marks omitted)), aff’d, Ali v. U.S. Dep’t of Health & Hum. Servs., No. 21-CV-12365, 2022 WL 3130227 (E.D. Mich. Aug. 4, 2022); Laura Leyva, DAB No. 2704,at 11 (finding that the aggravating factor concerning financial loss was “exceptional” and alone could have warranted a five-year lengthening of the exclusion); Raymond Lamont Shoemaker, DAB No. 2560, at 8 (2014) (“In light of the high degree of untrustworthiness reflected in the length of Petitioner’s [55-month] term of incarceration, a five year extension of the mandatory minimum five-year exclusion based on this factor alone would not be unreasonable.”).  Furthermore, there is no requirement that the I.G. make a showing, or that an ALJ make a finding, that a proven aggravating factor increases the risk of harm to federal health care programs.  The existence of one or more aggravating factors is itself an indication that an individual poses a risk of harm to federal programs.  Joann Fletcher Cash at 14-15 (noting that aggravating factors are “reasonably related to the goal of determining the degree of untrustworthiness of an individual and the future threat posed by that person,” and that the I.G. extends the statutory minimum exclusion period to ensure federal programs are safe “where aggravating factors indicate that five years may not be sufficient” to protect the programs); Vinod Chandrashekhar Patwardhan, M.D., DAB No. 2454, at 7-8 (2012) (noting that “two particular aggravating factors,” including the one in section 1001.102(b)(2), “demonstrate . . . profound untrustworthiness and the future risk [the petitioner] poses to the Medicare and Medi[caid] programs”); Roji Esha at 18 (“[T]he bare fact of establishing the aggravating factor . . . permitted the I.G. to extend the [statutory minimum] exclusion period by some amount . . . .”).  In any event, in this case, the two-year extension of the statutory minimum exclusion is plainly “modest” given the lengthy duration of Petitioner’s participation in the conspiracy for which she was convicted.  Esha at 28 (characterizing as “modest” a two-year lengthening of the statutory minimum five-year exclusion).

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Finally, Petitioner requests that we compare her circumstances to those in Paul D. Goldenheim, M.D., et al., DAB No. 2268 (2009), rev. and remanded, Friedman v. Sebelius, 686 F.3d 813 (D.C. Cir. 2012).  Petitioner asserts that in Goldenheim, three aggravating factors – none of which exist in her case – supported a “lengthy extension” of a statutory minimum exclusion period.  P. Br. at 5.  Petitioner submits that these facts show that the two-year extension of the statutory minimum exclusion in her case is unreasonable.  Id.

We find no merit in that contention.  “In reviewing whether the length of an exclusion exceeding the statutory minimum is unreasonable, comparisons with other cases are not controlling and of limited utility because aggravating and mitigating factors do not have specific values and must be evaluated based on the circumstances of a particular case which can vary widely.”  Thaxter at 32 (internal quotation marks and brackets omitted).  “While case comparisons can inform whether an exclusion falls within a reasonable range, they are unhelpful to the Board’s decision-making unless supported by analysis that accounts for the unique circumstances of each case and the relative seriousness of any applicable aggravating and mitigating factors.”  Id. at 33 (internal quotation marks omitted).  Petitioner provides no such comparative analysis and omits key background details, such as the fact that the 12-year exclusion sustained by the Board in Goldenheim was a permissive one under section 1128(b) and imposed from a three-year baseline, not from the five-year baseline applicable to mandatory exclusions.  See DAB No. 2268, at 3.  Petitioner also misstates that the exclusion in Goldenheim was supported by three aggravating factors.  In fact, the Board sustained the 12-year exclusion based on two aggravating factors and one mitigating factor.  Id. at 1.

III.        The I.G. was required to impose a mandatory exclusion even if Petitioner’s criminal offense also satisfied the criteria for a permissive exclusion.

Petitioner appears to object to the ALJ’s holding that the I.G. was legally obligated to exclude her under section 1128(a)(1) and thus had no “discretion” to impose a permissive exclusion under section 1128(b)(7) instead.  See P. Br. at 2 (item 4).  The ALJ’s holding is consistent with settled Board precedent.  The Board has repeatedly held that “[o]nce a conviction is determined to be within the scope of section 1128(a)(1), the I.G. is required by the Act to impose a mandatory exclusion.”  Dr. Timothy Baxter, DAB No. 3074, at 24 (2022) (citing Colburn, DAB No. 2683, at 9); see also David D. DeFries, D.C., DAB No. 1317, at 4 (1992) (holding that “a mandatory exclusion under section 1128(a) is required where applicable to the offense, even if the permissive exclusion provisions could also be read to apply”); Lipovsky at 6-12 (noting that Board decisions in this area are “consistent with the history of” legislation establishing section 1128 and rejecting various arguments challenging the Board’s construction of the statute).  Petitioner does

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not present any legal argument demonstrating that the Board’s prior holdings are wrong or inapplicable to her circumstances.6

Petitioner asks the Board to reduce her exclusion to two years on the assumption that the exclusion can be transformed into a permissive one under section 1128(b)(7).  However, because Petitioner is subject to a mandatory exclusion under section 1128(a)(1), her exclusion cannot be “less than five years.”  Act § 1128(c)(3)(B).  The Board has no authority in these circumstances to change the legal basis for exclusion or to reduce Petitioner’s exclusion to less than five years.  42 C.F.R. §§ 1001.102(a) (“No exclusion imposed in accordance with § 1001.101 [providing for mandatory exclusions] will be for less than 5 years.”), 1001.1(b) (providing that regulations in 42 C.F.R. Part 1001 are binding on administrative law judges and the Board).

Conclusion

We affirm the ALJ Decision.