Lakshmi Bethi, DAB No. 3223 (2026)

FINAL DECISION ON REVIEW OF 
ADMINISTRATIVE LAW JUDGE DECISION

Lakshmi Bethi (Petitioner) appeals the November 5, 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 10 years under section 1128(a)(1) of the Social Security Act (Act).1 Lakshmi Bethi, DAB CR6787 (2025) (ALJ Decision).  We affirm the ALJ Decision for the reasons stated below.

Legal Background

The Secretary of the Department of Health and Human Services (Secretary), acting through the I.G., has authority to exclude certain individuals from participation in any federal health care program.  Act §§ 1128(a), 1128A(j)(2); 53 Fed. Reg. 12,993 (Apr. 20, 1988) (secretarial delegation of authority); 48 Fed. Reg. 21,662 (May 13, 1983) (same); see also 57 Fed. Reg. 3,298 (Jan. 29, 1992) (Final Rule adopting I.G. implementing regulations).  Section 1128(a) of the Act, concerning mandatory exclusion, requires that the Secretary “shall exclude” individuals and entities within specified categories.  Section 1128(b) of the Act, concerning permissive exclusion, provides that the Secretary “may exclude” individuals and entities in other specified categories.

Section 1128(a)(1) of the Act requires exclusion of any 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 Medicaid.  Act § 1128(a)(1); see also id. § 1128(h) (defining “State health care program”).  An implementing regulation, 42 C.F.R. § 1001.101(a), states, “The OIG will exclude any individual that – (a) Has been convicted of a criminal offense related to the delivery of an item or service under Medicare or a State health care program.”  A mandatory exclusion under section 1128(a)(1) must last at least five years and may be longer (but not shorter) based on consideration of listed aggravating and mitigating factors.  Act § 1128(c)(3)(B); 42 C.F.R. 

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§ 1001.102(a)-(c).  Permissive exclusions imposed under section 1128(b) can last less than five years.  Act § 1128(c)(3)(C)-(F). 

An excluded individual may request a hearing before an ALJ on two issues:  whether the basis for exclusion exists, and whether the length of exclusion is unreasonable.  Act § 1128(f)(1); 42 C.F.R. §§ 1001.2007(a)(1), 1005.2(a).  A party dissatisfied with the ALJ’s initial decision may appeal to the Board, which may affirm or reverse the ALJ’s determination.  42 C.F.R. § 1005.21(a), (g).

Case Background2

In September 2024, the United States Attorney for the District of Connecticut charged Petitioner with a single count of Conspiracy to Violate the Anti-Kickback Statute, in violation of 18 U.S.C. § 371 (conspiracy statute) and section 1128B(b)(2) of the Act (Anti-Kickback Statute).  I.G. Ex. 2.  At the time, Petitioner was a licensed dentist in Connecticut who had two dental practice locations and had been enrolled as a dentist in Connecticut’s Medicaid program since 2013.  ALJ Decision at 3; I.G. Ex. 2, at 2, ¶¶ 3-5.  Petitioner had signed several Connecticut Medicaid program provider agreements (in 2013, in every year from 2015 through 2022, and in 2024), acknowledging that federal law prohibited “any giving or seeking of kickbacks, rebates, or similar remuneration.”  ALJ Decision at 4; I.G. Ex. 3, at 11-12; P. Ex. 2, at 11-12.  Petitioner nevertheless allegedly engaged in a criminal conspiracy from approximately June 30, 2016 to April 6, 2023, “to knowingly and willfully offer and pay remuneration, including kickbacks, bribes and rebates” to dental patients and patient recruiters.  I.G. Ex. 2, at 3-4. 

On September 4, 2024, Petitioner pleaded guilty to conspiracy to violate the Anti-Kickback Statute, “in violation of 42 USC 1320a-7b(b)(2),” which is section 1128B(b)(2) of the Act.  P. Ex. 3, at 8.  In Petitioner’s signed plea agreement she “freely and voluntarily” acknowledged her guilt of the charged offense.  I.G. Ex. 3, at 1, 8, 10; P. Ex. 2, at 8, 10.  Petitioner agreed $2,207,251.61 was a “reasonable estimate” of what the Connecticut Medicaid program paid her “for all services rendered to patients” recruited by kickbacks to recruiters and that she personally paid kickbacks of approximately $369,063.  ALJ Decision at 5; I.G. Ex. 3, at 13; P. Ex. 2, at 13.  The district court accepted Petitioner’s guilty plea, entered a criminal judgment adjudicating her guilty, and sentenced her to two years of probation and forfeiture of $500,000.  ALJ Decision at 5; I.G. Ex. 4, at 1-2, 4; P. Ex. 1, at 1-2, 4, 6-7.  

On May 30, 2025, the I.G. notified Petitioner of her exclusion from participation in federal health care programs for 10 years per section 1128(a)(1) of the Act due to her conviction.  I.G. Ex. 1, at 1. 

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ALJ Proceedings and Decision

Petitioner requested an ALJ hearing on the I.G. exclusion and both parties filed briefing and proposed evidence.  ALJ Decision at 1-2.  The ALJ admitted Petitioner’s 14 non-testimonial exhibits and the I.G.’s four exhibits without objection.  Id. at 2.  However, the I.G. objected to Petitioner’s submission of proposed written testimony from four witnesses.  I.G. Reply to ALJ at 4-5.  The ALJ admitted Petitioner’s own written testimony but excluded the other testimony as irrelevant character references.  ALJ Decision at 2.  

The ALJ determined an in-person hearing was not necessary and decided the case on the written record.  ALJ Decision at 2-3.  The ALJ itemized several factual findings, ALJ Decision at 3-5, and reached the following five primary legal conclusions.  First, Petitioner’s exclusion is required under section 1128(a)(1) of the Act because she was convicted of a criminal offense related to delivery of an item or service under Medicaid.  Id. at 5- 8.  Second, Petitioner’s exclusion must be for a minimum of five years.  Id. at 9.  Third, the I.G. proved an aggravating factor for extending the exclusion’s length beyond the five-year minimum.  Id.  Fourth, Petitioner did not prove any regulation-listed mitigating factor for shortening the exclusion.  Id. at 9-10.  Fifth, based on a qualitative analysis, the 10-year length of Petitioner’s exclusion is not unreasonable.  Id. at 11-12. 

Petitioner filed a timely appeal with the Board and the I.G. timely responded.  P.’s Not. of Appeal (NA); P.’s Br. in Support of Appeal (P. Br.); I.G. Br. in Opp’n to Appellant’s Appeal (I.G. Br.).

Standard of Review

Our standard of review on a disputed factual issue is whether the ALJ’s decision is supported by substantial evidence on the whole record, and our standard of review on a disputed legal issue is whether the ALJ’s decision is erroneous.  42 C.F.R. § 1005.21(h). 

Analysis

Petitioner “is challenging the imposition of the mandatory exclusion” in section 1128(a)(1) of the Act “rather than a permissive exclusion” in section 1128(b), and is challenging the exclusion’s 10-year length by claiming it “is unreasonable and there are significant mitigating factors in the record.”  NA at 1; see also P. Br. at 2.  Petitioner contends that the ALJ Decision contained incomplete factual findings and legal errors.  P. Br. at 3-6.  However, Petitioner does not dispute that some form of exclusion is authorized; she has acknowledged that “her guilty plea may result in her exclusion from participating as a provider in Medicaid, Medicare, and other government health care programs.”  I.G. Ex. 3, at 9; P. Ex. 2, at 9. 

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The I.G. asserts that the weight of the evidence supports Petitioner’s exclusion and the Board should affirm.  I.G. Br. at 7.  The I.G. states that Appellant’s conviction mandated her exclusion under section 1128(a)(1) of the Act and the ALJ did not err in upholding the 10-year exclusion period as reasonable.  Id. at 3-6. 

I. Petitioner was subject to mandatory exclusion under section 1128(a)(1) of the Act and a permissive exclusion cannot apply.

Petitioner asserts that her conviction does not trigger a mandatory exclusion under section 1128(a)(1) of the Act but instead a permissive exclusion, section 1128(b)(7), should apply.  P. Br. at 2, 6-8.  Under section 1128(b)(7), the “Secretary may exclude . . . [a]ny individual or entity that the Secretary determines has committed an act which is described in section 1128A, 1128B, or 1129 [of the Act].”  Petitioner was convicted under section 1128B of the Act.  I.G. Ex. 4, at 1; P. Ex. 1, at 1.  Petitioner thus argues that subsection 1128(a) “does indeed provide for a mandatory exclusion,” but section 1128(b)(7), “which refers specifically to kickbacks and to § [1128B,] should have been the section applied.”  P. Br. at 6.  Petitioner asserts that “[s]ince (a)(1) is the more general provision and (b)(7) the more specific, the rules of statutory construction provide that (b)(7) should apply.”  Id. at 7.  Petitioner contends that the “[t]he I.G.’s own website indicates that a violation of the Anti-Kickback Statute triggers a permissive exclusion.”  Id.  Petitioner argues that “the mandatory exclusion should be voided as a matter of law and the permissive exclusion provisions should be applied,” with any other result being “unlawful, arbitrary and capricious.”  Id. at 8.

We reject Petitioner’s attempts to substitute a permissive exclusion under section 1128(b) of the Act for her mandatory exclusion under section 1128(a)(1).  The Board has acknowledged that “it is possible that the actions of an individual or entity might place that individual or entity within both the mandatory and permissive categories.”  Niranjana B. Parikh, M.D., DAB No. 1334, at 7 (1992).  “The obvious advantage to being sanctioned under section 1128(b) is that, according to the circumstances of the case, an individual might be excluded for less than five years.”  Boris Lipovsky, M.D., DAB No. 1363, at 7 (1992).  Yet we have “long held that, when a conviction falls within the scope of section 1128(a), a minimum five-year exclusion must be imposed, and the I.G. does not have discretion to elect to impose a shorter exclusion period under an alternative permissive provision.”  Nenice Marie Andrews, DAB No. 2656, at 5 (2015); accord Kimbrell Colburn, DAB No. 2683, at 9 (2016); see also Leon Brown, M.D., DAB No. 1208, at 4 (1990) (“Since the requirements of the mandatory provisions in section 1128(a) have been met, the Secretary must impose an exclusion under that provision.”) (emphasis omitted); Napoleon S. Maminta, M.D., DAB No. 1135, at 14 (1990) (“Under section 1128(a), if an individual or entity is convicted of a program-related criminal offense, then the Secretary must impose an exclusion under that section.”) (emphasis omitted).  While “an individual or entity might fit within both the mandatory and permissive categories, the statute provides the Secretary with no option to choose 

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between them.”  Maminta at 14; see also David D. DeFries, D.C., DAB No. 1317, at 4 (1992) (“[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.”)

Petitioner misconstrues the Act by reading its mandatory and permissive exclusion provisions in isolation rather than in context.  See Chaturbhai B. Patel, M.D., DAB No. 2809, at 6-7 (2017) (stating that Board interprets statutes in their entirety, by referencing their language in context and their overall structure).  Petitioner overlooks the significant distinction between excluding an individual who “has been convicted” of violating the Anti-Kickback Statute, see Act § 1128(a)(1), and excluding an individual “that the Secretary determines has committed an act” described in the Anti-Kickback Statute, see id. § 1128(b)(7).  A conviction triggering a section 1128(a)(1) exclusion is a judicial determination “by a Federal, State, or local court.”  Act § 1128(i)(1)-(3).  As the ALJ recognized, a secretarial determination under section 1128(b)(7) that an individual committed an act described in the Anti-Kickback Statute would be a needless administrative act if the individual already had a judicial conviction for violating that same statute.  ALJ Decision at 7-8.  Petitioner’s claim that her conviction “was related to [an] HHS investigation” is both factually unsupported in the record and legally inconsequential.  P. Br. at 7.  An HHS investigation is not equivalent to a secretarial determination under section 1128(b)(7) – which is generally permissible only after a preliminary evidentiary hearing – that a violation occurred.  Act § 1128(f)(2).  As the Board explained in a prior appeal from an exclusion under section 1128(a)(1), the permissive exclusions “focus on different circumstances from those raised here, such as where the individual has not been convicted of an offense.”  Jack W. Greene, DAB No. 1078, at 9 (1989) (emphasis modified), dismissal denied, 731 F. Supp. 835 (E.D. Tenn. 1990), aff’d, 731 F. Supp. 838 (E.D. Tenn. 1990). 

Petitioner also misapplies the principle of construction that a specific statute takes precedence over a more general one.  That principle usually applies only “where two provisions are inconsistent,” which is not the case here.  See Walnut C-Store, LLC, DAB No. 2696, at 7 (2016).  The mandatory provisions of section 1128(a) of the Act are consistent with the permissive exclusion provisions in section 1128(b); both were enacted in the Medicare and Medicaid Patient and Program Protection Act (MMPPPA) of 1987.  See Lipovsky at 7.  The Board has explained that, “[i]f a conviction could fall either in section 1128(a)(1) or 1128(b),” the I.G. would have to choose between them, “which would nullify the mandatory nature of” section 1128(a)(1).  Id. at 9.  Such a construction of the statute “would therefore violate Congress’s intent to strengthen the mandatory category of exclusion offenses, one of its primary purposes in enacting the MMPPPA.”  Id. (citing S. Rep. No. 100-109, at 5 (1987), reprinted in 1987 U.S.C.C.A.N. 686); see also Timothy Wayne Hensley, DAB No. 2044, at 7 (2006) (stating MMPPPA’s purpose was “to enable the I.G. to protect covered programs from fraud, to protect the programs from abuse, and to protect beneficiaries”); Maminta at 10-11 (stating MMPPA’s legislative history “shows that Congress intended to strengthen both mandatory and 

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permissive authorities” and “intended to eliminate barriers to both mandatory and permissive exclusions”) (emphasis omitted); Greene at 12 (1989) (“The legislative history confirms that, by means of its revisions in 1987, Congress intended to expand and strengthen, rather than weaken, the already existing mandatory exclusion requirements.”) (emphasis omitted).

We reject Petitioner’s argument concerning information available on the I.G.’s website.  Petitioner argues that the website lists “unlawful kickback arrangements” in connection with only permissive exclusions, not mandatory ones.  P. Br. at 7.  However, the referenced webpage, which cites and summarizes the controlling statute, does not purport to detail each possible manifestation of each mandatory and permissive exclusion.  The webpage also accurately states that the I.G. must exclude individuals convicted of criminal offenses related to the delivery of items or services under Medicare or Medicaid, which is the type of criminal offense Petitioner committed.  In any event, agency guidance cannot supplant governing law.  Yolanda Hamilton, M.D., DAB No. 3061, at 28 (2022) (stating that contents of “sub-regulatory guidance could not supplant the exclusion law and regulations that we must follow”) (citing authorities).

II. A 10-year exclusion is not unreasonable in this case.

Petitioner challenges her ten-year exclusion as “unreasonable” on several grounds.  P. Br. at 2.  Petitioner argues that the ALJ improperly considered an aggravating factor that the I.G. did not consider concerning the suspension of Petitioner’s Connecticut dental license and her termination from the Connecticut Medicaid program.  Id. at 11-12.  Petitioner claims she established the mitigating factor of cooperation with government officials, 42 C.F. R. § 1001.102(c)(3).  Id. at 8-10.  Petitioner also contends that the ALJ “seems to have been improperly influenced” by a misperception that “the beneficiaries were seeking and the Petitioner was furnishing unnecessary services.”  Id. at 10 (emphasis omitted).  As explained below, these arguments are not persuasive. 

1. A. The existence of the aggravating factor in 42 C.F.R. § 1001.102(b)(2) is undisputed.

One regulatory factor that “may be considered to be aggravating and a basis for lengthening the period of exclusion” is that “[t]he acts that resulted in the conviction, or similar acts, were committed over a period of one year or more.”  42 C.F.R. § 001.102(b)(2).  The I.G. applied this factor and added five more years to Petitioner’s minimum five-year exclusion because the “acts that resulted in the conviction, or similar acts, were committed over a period of one year or more.”  I.G. Ex. 1, at 1; I.G. Br. at 5.

The ALJ correctly determined that the aggravating factor in 42 C.F.R. § 1001.102(b)(2) supports an exclusion period longer than the five-year minimum.  The ALJ found that, “[b]eginning on or about June 30, 2016 and continuing to on or about April 6, 2023,” 

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Petitioner participated in a criminal conspiracy involving payment of kickbacks to dental patients and patient recruiters.  ALJ Decision at 4-5 (Findings No. 2 and 3).  Those findings are uncontested.  P. Br. at 3 (“Petitioner does not contest Findings of Fact 1-3.”); I.G. Ex. 3, at 12 (stipulation in plea agreement that Petitioner agreed to pay and paid kickbacks from approximately June 30, 2016 to April 6, 2023); P. Ex. 2, at 12 (same); P. Ex. 3, at 5-6 (acknowledgment in Petitioner’s sentencing memorandum that “[t]he facts of the offense are not in dispute”).  Petitioner thus admits to committing for nearly seven years the criminal acts underlying her conviction.  Section 1001.102(b)(2) is applicable if such acts “were committed over a period of one year or more.”  The section 1001.102(b)(2) aggravating factor is established. 

1. B. The ALJ did not improperly consider any other aggravating factor.

Petitioner argues that the ALJ improperly considered “the status of the Petitioner’s dental license” and her “termination from the [Connecticut] Medicaid Program” as grounds for the 10-year exclusion term.  P. Br. at 11.  Petitioner asserts that the I.G. relied on “only one aggravating factor” and the ALJ “cherry picked and distorted other information” in order “to create new grounds for the 10 year exclusion.”  Id. at 12.  Petitioner claims she is “still working on retaining her South Dakota license,” and her appeal from her termination as a participating provider “is still pending.”  Id.

We reject Petitioner’s argument.  The ALJ appropriately analyzed 42 C.F.R. § 1001.102(b)(2), concerning the duration of illegal activity, as the sole aggravating factor in this case.  ALJ Decision at 9.  The ALJ merely noted that, “[w]hile not alleged by the IG,” a separate aggravating factor, 42 C.F.R. § 1001.102(b)(9), is applicable when the excluded individual “has been the subject of any other adverse action” by a government agency based on the same circumstances that prompted the exclusion.  ALJ Decision at 12 n.2.  The ALJ further noted “that Petitioner provided evidence that her dental license in South Dakota was suspended due to her criminal conviction and Petitioner’s participation in the Connecticut Medicaid program was terminated due to her criminal conviction.”  Id. (citing P. Exs. 5 & 6).  These observations were not error.  The I.G.’s choice not to rely on an available aggravating factor when setting an exclusion “does not preclude considering those circumstances in the context of the exclusion statute’s overarching concern of protecting the Medicare program from untrustworthy individuals.”  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).  Petitioner’s assertion in the same context that “[t]he ALJ seems to be imposing the additional 5 years of exclusion as punitive as opposed to remedial,” P. Br. at 11, has no merit.  Though Petitioner’s mandatory exclusion under section 1128(a)(1) “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.’”  See Kimberly Jones, DAB No. 3033, at 2 

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(2021) (quoting Edwin L. Fuentes, DAB No. 2988, at 14 (2020), aff’d, No. 4:20-cv-00026, 2021 WL 4341115 (W.D. Va. Sept. 23, 2021)).

1. C. Petitioner has not established the mitigating factor in 42 C.F. R. § 1001.102(c)(3) or any other authorized mitigating factor.

Petitioner challenges the ALJ’s determination that no mitigating factor applies to shorten the exclusion’s duration, including the 42 C.F.R. § 1001.102(c)(3) factor concerning cooperation with governmental officials.  The ALJ found that, “[w]hile Petitioner alleges cooperation, she provided no details about this alleged cooperation in her written direct testimony and submitted no documentary evidence to prove it.”  ALJ Decision at 10.  Petitioner counters that “the ALJ failed to find and take into account” 10 itemized facts, “which are material to the consideration of the mitigating factor of cooperation” with officials “and Petitioner’s commitment to remediation.”  P. Br. at 3.  Petitioner thus claims “there was an abundance of factual evidence before the ALJ demonstrating the Petitioner’s cooperation with government officials” and establishing the section 1001.102(c)(3) mitigating factor.  Id. at 10.  Petitioner states she “met her burden of showing the presence of a mitigating factor” that “warranted a reduction in the length of the exclusion to less than 10 years.”  Id. 

We uphold the ALJ’s determination that Petitioner did not prove the existence of the 42 C.F.R. § 1001.102(c)(3) mitigating factor, which states that it can apply only if:

• (3) The individual’s or entity’s cooperation with Federal or State officials resulted in—
  • (i) Others being convicted or excluded from Medicare, Medicaid and all other Federal health care programs,
  • (ii) Additional cases being investigated or reports being issued by the appropriate law enforcement agency identifying program vulnerabilities or weaknesses, or
  • (iii) The imposition against anyone of a civil money penalty or assessment under part 1003 of this chapter.

We agree with the ALJ that Petitioner did not meet her burden of proving the applicability of 42 C.F.R. § 1001.102(c)(3).  ALJ Decision at 9-10.  “The Board has long recognized that a petitioner bears the burden of showing the presence of any mitigating factor” and presenting supporting evidence.  Juan de Leon, Jr., DAB No. 2533, at 7 (2013).  Like the ALJ, we find it significant that Petitioner’s written testimony provides no details about her alleged cooperation.  See ALJ Decision at 10.  Petitioner testified only that she is “helping the government regarding . . . noncompliance practices.”  P. Test. at 1.  It also is significant that Petitioner’s Memorandum in Aid of Sentencing before the district court made no mention of cooperation, when she had every incentive to present facts that would support leniency in sentencing.  See P. Ex. 3.  She complained there was “no 

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significant justification” to incarcerate her while other dentists “have not been arrested or pursued civilly,” and that only one of many recruiters (J.M.) had been indicted and pled guilty while others apparently were not “being pursued criminally or civilly.”  Id. at 10.  Yet Petitioner made no claim of providing any cooperation toward the conviction, exclusion, or monetary penalizing of any of those other persons.    

Petitioner now argues that the ALJ “either misapprehended or improperly and arbitrarily dismissed” certain facts, P. Br. at 3, but none of those asserted facts proves that the cooperation factor applies.  Petitioner alleges she “engaged in cooperating with the Government” by sharing useful “material information” about the recruiters, and that recruiter J.M. “was also indicted and had pled guilty.”  Id. at 4.  Yet Petitioner does not claim or provide evidence that her cooperation actually “resulted in” the conviction, exclusion, or monetary penalizing of J.M. or anyone else, as the regulation requires.  See 42 C.F.R. § 1001.102(c)(3)(i), (iii).  Petitioner states that authorities “likely” used information she shared “to pursue other dental practices,” she “is still cooperating with the Government to identify other dental practices engaged in fraud and abuse,” and she “helped to illuminate . . . [p]rogram vulnerabilities or weaknesses.”  P. Br. at 4, 6.  Yet speculation about past and future effects of Petitioner’s cooperation does not establish that it in fact “resulted in” additional investigations or in “reports being issued by the appropriate law enforcement agency identifying program vulnerabilities,” as the regulation requires.  See 42 C.F.R. § 1001.102(c)(3)(ii).  Petitioner contends she “shared material financial information with the Government which permitted the determination of the remuneration” her practices received from kickbacks and that she “personally” paid a $500,000 monetary judgment.  P. Br. at 4.  Yet the regulation gives no effect to an offender’s help with quantifying and repaying monetary losses that her crime caused.  Such “mere claims of general cooperation and granting of file access do not establish the requirements for applying section 1001.102(c)(3).”  Cesar M. Cubano-Martinez, M.D., DAB No. 3142, at 9 (2024).  Even where the record shows some cooperation with authorities, “that is not sufficient to meet [the excluded individual’s] burden to show that the factor applies,” when (as here) “Petitioner provided no evidence that [the] cooperation resulted in any of the outcomes identified in the subsection.”  Christopher Switlyk, DAB No. 2600, at 6 (2014); see also Waleed Khan, DAB No. 3083, at 10 (2023) (holding section 1001.102(c)(3) not established where excluded individual “provided no details confirming whether [his] cooperation produced any convictions or other results within the scope of section 1001.102(c)(3)(i)-(iii)”). 

“[T]he ALJ and Board may consider only the three mitigating factors specified in 42 C.F.R. § 1001.102(c),” Erik X. Alonso, DAB No. 3186, at 8 (2025), and the remaining facts that Petitioner claims the ALJ “misapprehended or improperly disregarded,” P. Br. at 10, do not establish any of those factors.  Petitioner alleges, for example, that she had no prior criminal record.  P. Br. at 3.  “Whether or not Petitioner had a previous criminal history is not one of the mitigating factors listed in section 1001.102(c) and, thus, is immaterial” to determining the reasonableness of an exclusion period.  Rosa Velia 

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Serrano, DAB No. 2923, at 10 (2019), recons. denied, DAB Ruling No. 2019-2 (Apr. 25, 2019).  Petitioner points out that her sentence “did not require any incarceration.”  P. Br. at 3-4.  While a sentence of incarceration is a recognized aggravating factor, 42 C.F.R. § 1001.102(b)(5), “the absence of an aggravating factor is not in itself a mitigating factor,” Eugene Goldman, M.D., DAB No. 2635, at 10 (2015).  Petitioner asserts that her termination from Connecticut Medicaid “is presently under appeal,” she “is still licensed as a dentist” in Connecticut, and the “indefinite suspension of her dental license in South Dakota” is voluntary and conditionally subject to reinstatement.  P. Br. at 5.  “None of the mitigating factors in 42 C.F.R. § 1001.102(c) concerns an excluded physician’s licensing status,” however.  Samirkumar Shah, M.D., DAB No. 3111, at 17 (2023).  Petitioner states she “has demonstrated her commitment to remediation and that she is trustworthy to continue to comply with the law as it applies to participation in federal health care programs.”  P. Br. at 5.  Yet general trustworthiness or good character is not an independent basis for determining whether an exclusion period is unreasonable.  Hamilton at 19; 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.”); see also Mohamed Basel Aswad, M.D., DAB No. 2741, at 11-12 (2016), aff’d, No. 2:16-cv-1367, 2018 WL 704370 (D.N.M. Feb. 2, 2018); Baldwin Ihenacho, DAB No. 2667, at 8 (2015). 

1. D. Petitioner’s period of exclusion is not unreasonable.

Petitioner claims the 10-year length of the exclusion is unreasonable and seeks a reduction “to 5 years or less than 10 years, if the mandatory exclusion applies, and less if the permissive exclusion applies.”  P. Br. at 2.  In addition to arguments already addressed, Petitioner asserts that the ALJ “seems to have been improperly influenced” by a misperception that “the beneficiaries were seeking and the Petitioner was furnishing unnecessary services.”  Id. at 10 (emphasis omitted).  Petitioner objects that “[t]he I.G. has never raised as an aggravating factor any claim that the Petitioner was engaging in fraud by recruiting patients to seek or providing unnecessary services.”  Id. at 11. 

The ALJ applied the proper standards to the case-specific determination of the reasonableness of the exclusion’s length.  ALJ Decision at 11.  The 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.”  Michael J. Vogini, D.O., DAB No. 2584, at 9 (2014).  That is exactly what the ALJ did in this case.  

Substantial evidence supports the ALJ’s finding that a 10-year exclusion period was not unreasonable, given the applicability of the 42 C.F.R. § 1001.102(b)(2) aggravating factor and the absence of any authorized mitigating factor.  See ALJ Decision at 11-12.  The ALJ found that “any reasonable person would question” the propriety of “paying money to a patient so that the dentist can provide services to that patient,” yet “Petitioner 

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engaged in [her] conduct for nearly seven years without questioning it or seeking legal advice as to its legality.”  Id. at 11.  The ALJ found that “Petitioner’s long-term conspiracy to violate a law meant to protect the Medicaid program from fraud endangered that program,” and it was not “credible that Petitioner did not understand her actions were improper.”  Id. at 12.  Petitioner admittedly engaged in criminal conduct that lasted for nearly seven years.  I.G. Ex. 3, at 11-13; P. Ex. 2, at 11-13.  The ALJ thus concluded “that an increase in the length of exclusion from 5 to 10 years” was “not unreasonable based on the aggravating factor in this case.”  ALJ Decision at 12.  To the extent the ALJ made credibility findings, id., they are entitled to our deference and Petitioner gives us no compelling reason to reject them.  See Nancy L. Clark, DAB No. 2989, at 9 (2020) (“It is well settled that the Board defers to ALJ findings on credibility and the weight of testimony absent a compelling reason for rejecting them.”).

The ALJ’s upholding of the exclusion’s 10-year duration is also free of legal error.  Participation in a criminal scheme for approximately seven years “is a lengthy period” and indicates that the excluded individual “is highly untrustworthy” for purposes of the aggravating factor under 42 C.F.R. § 1001.102(b)(2).  Shah at 11; see also Amgad Mikhail, DAB No. 3206, at 10 (2025) (holding that section 1001.102(b)(2) “supports an exclusion period much longer than the minimum” when excluded person’s “criminal conduct lasted for over seven years,” which demonstrated an ongoing lack of integrity).  In fact, “we have found criminal conduct for periods shorter than the approximately seven-year period established here to be significant and indicative of the excluded individual’s degree of untrustworthiness.”  Shah at 10 (citing cases).  “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).  

It is immaterial whether, as Petitioner argues, she never faced “any fraud claims or charges” from prosecutors and the I.G. “never raised as an aggravating factor any claim that the Petitioner was engaging in fraud . . . or providing unnecessary services.”  See P. Br. at 11.  Such arguments are “irrelevant,” as section 1128(a)(1) of the Act “does not require a showing that the health care items or services delivered were unnecessary,” or that there was “fraudulent conduct” toward a federal health care program.  Aiman M. Hamdan, M.D., DAB No. 2955, at 5 (2019); see also Hensley at 11 (“The plain language of section 1128(a)(1) requires neither fraud on a covered program nor direct contact with a covered program.”).  Petitioner was criminally charged under section 1128B(b)(2) of the Act, which is silent as to fraud or unnecessary services and instead prohibits “any kickback, bribe, or rebate.”  I.G. Ex. 2, at 3-4.  As the statute’s language indicates, and as Petitioner recognized before the district court, kickbacks are akin to bribery.  See P. Ex. 3, at 2, 6-7, 18-19.  “A key purpose of the anti-kickback law is to ensure that decisions by physicians about what medical items or treatments to prescribe, furnish, or arrange (and hence ‘deliver’) under federal health care programs are not tainted by improper financial 

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considerations.”  Colburn at 6.  Thus, the statute forbids filing fraudulent claims, rendering needless services, and engaging in kickbacks whether those criminal acts occur together or separately.  See Parikh at 6 n.10 (“The anti-kickback provisions were enacted, in large part, to protect the programs from increased costs caused by fraudulent practices, kickbacks, or unnecessary services.”) (emphasis added); P. Ex. 3, at 10 (acknowledging the existence of “pure anti-kickback cases, without charged conduct related to fraud”).  For individuals convicted under section 1128B and excluded under section 1128(a)(1), the question whether the treatment they prescribed “was medically necessary for the patients for whom it was prescribed is completely irrelevant to either the crimes for which [they] were convicted or to the exclusions.”  Parikh at 6 n.9.

Conclusion

We affirm the ALJ Decision.