Linh Cao Nguyen, M.D., DAB No. 3237 (2026)

FINAL DECISION ON REVIEW OF

ADMINISTRATIVE LAW JUDGE DECISION

Linh Cao Nguyen, M.D. (Petitioner) appealed the decision of an Administrative Law Judge (ALJ) upholding on summary judgment the determination of the Inspector General (I.G.) to exclude Petitioner from participation in all federal health care programs for 14 years.  Linh Cao Nguyen, MD, DAB CR6858 (2026) (ALJ Decision).  The ALJ concluded that Petitioner is subject to exclusion under section 1128(a)(1) of the Social Security Act (Act) based on his 2024 conviction in federal district court for health care fraud, and that the length of the exclusion is not unreasonable based on three aggravating factors and no mitigating factor.1 

In appealing the ALJ Decision, Petitioner does not dispute that he is subject to a mandatory exclusion based on his health care fraud conviction, nor does he dispute that the I.G. established three aggravating factors.  Petitioner argues, however, that the length of his exclusion should be reduced because he established the existence of a mitigating factor under 42 C.F.R. § 1001.102(c)(2).  Based on our de novo review, we reject Petitioner’s contention that the district court determined he had a mental or emotional condition before or during the commission of his offense that reduced his culpability.  We find there is no genuine dispute of material fact on that issue and conclude that summary judgment for the I.G. is appropriate.  We therefore affirm the ALJ’s conclusion that the 14-year exclusion is not unreasonable based on three aggravating factors and no mitigating factor.

Legal Background

Section 1128(a) of the Act requires the Secretary of the Department of Health and Human Services (Secretary) to exclude individuals with certain types of criminal convictions from participation in all federal health care programs.  Exclusions imposed under section 1128(a) are known as “mandatory” exclusions.  The I.G., on behalf of the Secretary, 

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enforces section 1128(a) in accordance with regulations in 42 C.F.R. Parts 1001 and 1005.2  The goals of exclusion include protecting federally funded health care programs and their beneficiaries from untrustworthy actors, maintaining program integrity, and fostering public confidence in the programs.  Joann Fletcher Cash, DAB No. 1725, at 10, 12-13 (2000) (citing Greene v. Sullivan, 731 F. Supp. 838, 840 (E.D. Tenn. 1990)); Peter J. Edmonson, DAB No. 1330, at 4 (1992).

Section 1128(a)(1) of the Act requires the exclusion of 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 state’s Medicaid program).3  An individual is “convicted” within the meaning of section 1128(a) when “a judgment of 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).  As provided in section 1128(c)(3)(B) of the Act, a mandatory exclusion “shall be not less than five years.” 

The regulations authorize the imposition of an exclusion longer than the statutory minimum five years if one or more aggravating factors are present.  Those factors include (as relevant here):  financial loss to a government agency or program or other entities of $50,000 or more; criminal conduct over a period of one year or more; and a criminal sentence that included incarceration.  42 C.F.R. § 1001.102(b)(1), (2), (5).

The I.G.’s regulations further provide that if one or more aggravating factors justify an exclusion longer than five years, then certain mitigating factors listed in section 1001.102(c) may be considered as a basis to reduce the exclusion period to no less than five years.  The only mitigating factor at issue here is the following: 

The record in the criminal proceedings, including sentencing documents, demonstrates that the court determined that the individual had a mental, emotional or physical condition before or during the commission of the offense that reduced the individual’s culpability[.]

42 C.F.R. § 1001.102(c)(2) (emphasis added).

An individual excluded by the I.G. may request a hearing before an ALJ to contest the exclusion but only on the issues of (i) whether a “basis for” exclusion exists, and (ii)

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whether “[t]he length of exclusion is unreasonable.”  Id. §§ 1001.2007(a), 1005.2(a).  Upon motion of either party, an ALJ may decide a case, in whole or in part, by summary judgment “where there is no disputed issue of material fact.”  Id. § 1005.4(b)(12). 

A party dissatisfied with the ALJ’s initial decision may appeal it to the Board.  Id. § 1005.21(a).  The Board “will not consider any issue not raised in the parties’ briefs, nor any issue in the briefs that could have been raised before the ALJ but was not.”  Id. § 1005.21(e).  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

I.    Petitioner’s criminal proceeding

Information in this section is drawn from documents of Petitioner’s criminal proceeding (as submitted by the parties) and is undisputed.

On October 20, 2021, a federal grand jury issued a 50-count indictment charging Petitioner, a physician, with one count of health care fraud in violation of 18 U.S.C. § 1347, and with multiple other counts of making false statements relating to health care matters and identity theft (in violation of other statutes).  I.G. Ex. 2, at 1, 24.  Following his arrest and initial appearance in federal district court, Petitioner was released and placed under pretrial supervision with conditions.  P. Ex. 1, at 1, 3; P. Ex. 7, at 1. 

On March 19, 2024, Petitioner entered a guilty plea to the health care fraud count pursuant to a written plea agreement.  I.G. Ex. 3; I.G. Ex. 4, at 1; P. Ex. 4, at 5.  As the factual basis for that plea, Petitioner admitted that from at least 2016 through 2021, he “knowingly and willfully execute[d] a scheme to defraud” several federal and state government health care programs and private health insurers, acting “with the intent to defraud” those entities.4  I.G. Ex. 3, at 6, 13.  More specifically, Petitioner admitted that, despite knowing his obligation to submit truthful information on health care benefit and insurance claims, he “knowingly, willfully, and fraudulently caused to be submitted thousands of false billing claims . . . contain[ing] materially false statements” in order to receive payments to which he was not entitled.  Id. at 13-14.  Petitioner admitted that he attempted to conceal his fraudulent billing scheme by employing staff from Vietnam to add his signature to medical records he had not reviewed and to obtain payment for services that were not performed, and that during audits and other inquiries from health care programs, Petitioner falsely created medical records to conceal and avoid detection of his fraudulent billing scheme.  Id. at 14.

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For purposes of the plea, the parties agreed to a sentence of no more than 30 months in prison on the health care fraud count, with the understanding that the government would dismiss the other counts if the district court accepted the plea agreement and sentenced Petitioner “consistent with” that agreement.  Id. at 4.  Petitioner agreed that the financial loss relating to his scheme to defraud was at least $3,746,288.16.  Id. at 3, 14, 15.  Petitioner agreed to pay $1,149,623.46 in restitution to the affected private health insurers and, in lieu of directly reimbursing the affected governmental programs, agreed to enter a settlement agreement requiring him to pay the United States $2,596,664.70 to resolve civil claims against him under the False Claims Act.  Id. at 5-7, 14-15.    

Shortly after Petitioner entered his guilty plea, the United State Probation Office submitted a Presentence Investigation Report to the district court.  P. Ex. 1, at 1.  The report included the probation office’s determination of Petitioner’s imprisonment range under the United States Sentencing Guidelines.  The probation office determined that this range was 57-71 months.  Id. at 18 (¶ 94), 20, 21.5  The probation office recommended that the district court impose a prison sentence of 24 months (below the applicable guidelines range) because a “variance” appeared appropriate under 18 U.S.C. § 3553(a)(1) given Petitioner’s particular “history and characteristics” – including his education, military service, “health issues,” “pretrial adjustment,” and other factors.  See id. at 18, 20.  The presentence report noted, in a separate section, that Petitioner had a history of depression and alcohol use, among other physical health conditions.  Id. at 12.6  Following submission of the Presentence Investigation Report, Petitioner filed a sentencing memorandum, asking the district court to impose a sentence of probation with

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“community confinement” or home detention.  P. Ex. 5, at 1, 12.  Petitioner contended that a prison term was inappropriate for several reasons, including the government’s delay in charging him, his personal history and characteristics, family responsibilities, and other circumstances.  Id. at 5-11.  Petitioner did not allege that any past or current mental, emotional, or physical condition warranted leniency in sentencing.  Petitioner briefly alluded to his prior alcohol use to make the point that he had successfully addressed that problem during the pretrial release period (by enrolling in a substance abuse treatment program and agreeing to abstain from alcohol as a condition of release) and thus posed no danger to the public requiring his incarceration.  Id. at 11.

Shortly before Petitioner’s sentencing hearing, the probation office filed a “Release Status Report” with the district court.  P. Ex. 7.  The report states that Petitioner’s “adjustment to supervision” (supervised pretrial release) had been “satisfactory”; that he was continuing to participate in “mental health treatment through the Veterans Administration”; that he had self-reported his “struggle with alcohol”; and that he successfully completed 55 hours of outpatient substance abuse disorder treatment, and maintained sobriety for the previous five months.  Id. at 1-2.

During Petitioner’s October 16, 2024 sentencing hearing, the district court accepted Petitioner’s guilty plea to the health care fraud count and entered judgment against him; dismissed the remaining counts of the indictment; and sentenced Petitioner to 24 months of incarceration.  P. Ex. 4, at 5, 38; I.G. Ex. 4, at 1-2.  Consistent with the plea agreement, the court ordered Petitioner to:  (1) pay $1,149,623.46 in restitution to private health insurers; and (2) pay a civil settlement to the United States in the amount of $2,596,664.70, which included $2,400,000 payable to the Centers for Medicare and Medicaid Services, $116,906.70 payable to TRICARE, and $79,758 payable to AHCCCS (the Arizona Medicaid program).  I.G. Ex. 4, at 1-2; P. Ex. 4, at 5, 38-39.7   

In choosing Petitioner’s sentence, the district court found that Petitioner’s non-binding or “advisory guideline range” was 57 to 71 months in prison (as the probation office had determined) but that a “variance” below that range was appropriate based on the factors in 18 U.S.C. § 3553(a).  P. Ex. 4, at 36; P. Ex. 3, at 1.  That federal statute governs imposition of a criminal sentence and provides that a court, “in determining the particular sentence to be imposed, shall consider,” among other things, “the nature and circumstances of the offense and the history and characteristics of the defendant.”  18 U.S.C. § 3553(a)(1).  The court specified the following reasons for the variance during the sentencing hearing:  (1) Petitioner’s service in the United States Air Force; (2) his “exemplary” three-year “performance on pretrial services release,” which demonstrated that he was a “a very good candidate for rehabilitation”; (3) “community and family support”; (4) “family ties” and medical conditions of close family members; (5) his

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“sincere remorse”; and (6) his “extraordinary story” of coming to the United States as a refugee, working his way up through military service, and becoming a medical doctor with the potential “to contribute in the future.”  P. Ex. 4, at 36-38.  The court did not state that Petitioner was entitled to leniency because he had a mental, emotional, or physical condition before or during the commission of his offense.  To the contrary, the court described Petitioner’s criminal conduct as “brazen” and “very willful,” noting that his “blatant violations . . . went on for a period of at least five years” and caused upwards of $3.75 million in financial harm.  Id. at 36, 46-47.   

The day after the sentencing hearing, the court entered into the record a signed “Statement of Reasons” form, which memorialized the court’s determination of the advisory guideline range and the court’s reasons for granting a downward variance.  P. Ex. 3, at 1-3.  The form sets out a check-box list of possible reasons for a variance under 18 U.S.C. § 3553(a).  Id. at 3 (§ IV, ¶ C).  Under the heading “history and characteristics of the defendant,” the court checked the boxes for “community ties,” “employment record,” “family ties and responsibilities,” “military service,” “remorse,” and “pre-sentence rehabilitation.”  Id.  The court did not check the boxes for “mental and emotional condition,” “physical condition,” “diminished capacity,” or “drug or alcohol dependence.”  Id.  In addition, the court did not check any boxes relating to the “nature and circumstances of the offense,” including a box that allowed the court to specify any “[g]eneral aggravating or mitigating factors.”  Id.  The form has lines that permitted the court to note any “other” reasons (not pre-printed on the form) for imposing a sentence outside the guidelines range, but the court left those lines blank.  Id. 

II.    The I.G.’s exclusion decision

On July 31, 2025, the I.G. notified Petitioner that it was excluding him from participation in all federal health care programs for 14 years pursuant to section 1128(a)(1) of the Act.  I.G. Ex. 1, at 1.  The I.G. also informed Petitioner that it had imposed an exclusion longer than the five-year minimum required by section 1128(c)(3)(B) because of the following three aggravating factors:

1. The acts resulting in [Petitioner’s] 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 [as evidenced by the district court’s sentencing order directing Petitioner to pay three private health insurers $1,149,600 in restitution, and by Petitioner’s agreement to pay the United States $2,596,664.70 to settle claims made in a related civil False Claims Act suit].
2. The acts that resulted in the conviction, or similar acts, were committed over a period of one year or more . . . from about 2016 to about 2021.

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3. The sentence imposed by the court included . . . 24 months of incarceration.

I.G. Ex. 1, at 1.

III.    Petitioner’s hearing request and the I.G.’s motion for summary judgment

Petitioner filed a request for hearing with the ALJ to contest his exclusion, asserting that he would produce evidence of unspecified mitigating factors to support a reduction in the exclusion.  Req. for Hr’g at 1.

In response to the hearing request (and with the ALJ’s permission), the I.G. filed a motion for summary judgment, supported by a legal memorandum (“MSJ Mem.”) and five exhibits, including Petitioner’s indictment and plea agreement.  I.G. Exs. 1-5; Pre-Hr’g Conf. Order at 3, ¶ 5. 

Petitioner responded to the I.G.’s motion with a legal memorandum and nine exhibits (P. Exs. 1-9), most of which were documents from Petitioner’s criminal proceedings.  Petitioner conceded that his health care fraud conviction is a legally sufficient basis to exclude him from federal health care programs for a minimum of five years under sections 1128(a)(1) and 1128(c)(3)(B) of the Act.  Response to MSJ at 1.  In addition, Petitioner stated that he did not dispute the existence of the three aggravating factors identified by the I.G. in its exclusion notice.  Id. at 1-2 (stating that he “does not dispute that the record supports three (3) aggravating factors”).  However, Petitioner asserted that the I.G. was not entitled to summary judgment on its claim that the 14-year exclusion is not unreasonable because “his mental health and substance issues [depression and alcohol use] create a mitigating factor under 42 C.F.R. § 1001.102(c)(2) that must be applied to reduce the exclusion period.”  Id. at 2. 

The I.G. filed a reply, noting that “the submitted evidence from Petitioner’s criminal proceedings, even when viewed in the light most favorable to Petitioner, does not support a finding that the Court determined Petitioner had a mental, emotional, or physical condition before or during the commission of the offense that reduced his culpability.”  I.G. Reply in Support of MSJ at 5. 

IV.    The ALJ Decision

The ALJ granted the I.G’s motion for summary judgment, sustaining the 14-year exclusion of Petitioner from all federal health care programs.  ALJ Decision at 4-5, 18.  In finding the I.G. entitled to summary judgment, the ALJ concluded that:

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• Undisputed facts demonstrate that the criteria for exclusion in section 1128(a)(1) are met in this case and that Petitioner is therefore subject to a mandatory minimum exclusion of five years (id. at 7-10);
• The three aggravating factors upon which the I.G. relied to lengthen the exclusion beyond five years are established by the record evidence, and Petitioner did not dispute their existence (id. at 10-11);
• Petitioner did not establish the mitigating factor in section 1001.102(c)(2) and there is no genuine dispute of material fact regarding that issue (id. at 14); and
• A 14-year exclusion was “within a reasonable range and not unreasonable considering the existence of the three aggravating factors and no mitigating factor” (id. at 17). 

In addressing the mitigating-factor issue, the ALJ rejected Petitioner’s suggestion that the facts and evidence of record support an inference that the district court made the determinations required by section 1001.102(c)(2), finding that such an inference is “not reasonable.”  Id. at 13-14 (finding no evidence to support an inference that the district court determined Petitioner had a mental and/or emotional condition before or during the commission of his offense that reduced his culpability).

Standard of Review   

Whether summary judgment is appropriate is a legal issue the Board addresses de novo.  Summary judgment is appropriate when there is no genuine dispute about a fact or facts material to the outcome of the case, and the moving party is entitled to judgment as a matter of law.  A dispute of fact is “material” if its resolution might affect the case’s outcome under the governing law.  The Board assesses whether summary judgment is appropriate in the light most favorable to the non-moving party (here, Petitioner) and gives that party the benefit of all reasonable inferences.  However, we are not required to draw unreasonable inferences or accept the non-moving party’s legal conclusions.  Inferences based on speculation are not reasonable.  The reviewer may not assess credibility or weigh the evidence when deciding a summary judgment motion.

Samirkumar Shah, M.D., DAB No. 3111, at 6 (2023) (citations omitted).

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Analysis

Petitioner raises a single issue in this appeal – “whether Petitioner has established the mitigating factor” in 42 C.F.R. § 1001.102(c)(2).  Pet.’s Brief in Support of Notice of Appeal (P. Br.) at 3.  For reasons stated below, we affirm the ALJ’s conclusion that Petitioner did not establish that mitigating factor or create any genuine dispute of fact about the factor’s existence. 

I.    We summarily affirm the ALJ’s conclusions that Petitioner is subject to mandatory exclusion and that three aggravating factors were established.   

In contesting a mandatory exclusion longer than the statutory minimum, the excluded individual may raise only two general issues before an ALJ or the Board:  (1) whether the I.G.’s “basis for” the exclusion “exists”; and if so, (2) whether the length of the exclusion imposed by the I.G. is “unreasonable.”  42 C.F.R. § 1001.2007(a).  Resolving the second issue requires a determination of the presence (and weight) of any legally relevant aggravating or mitigating factors.  See Kimberly Jones, DAB No. 3033, at 7 (2021) (explaining that the reasonableness of an exclusion longer than the statutory minimum five years entails an evaluation of aggravating and mitigating factors “and the circumstances underlying them” (internal quotation marks omitted)). 

Regarding the first issue, Petitioner does not challenge the ALJ’s conclusion that Petitioner’s health care fraud conviction satisfies section 1128(a)(1)’s criteria for exclusion and that the I.G. had a basis (and was required) to exclude him for at least five years.  We therefore summarily affirm that conclusion without further discussion.  See 42 C.F.R. § 1005.21(e) (providing that the Board “will not consider” an issue that the appellant has not raised in its appeal brief); Diane Marie Krupka, DAB No. 3020, at 5 (2020) (summarily affirming ALJ’s conclusion that the I.G. had a basis to exclude appellant because she alleged no error by the ALJ in reaching that conclusion).

Regarding the second issue, Petitioner does not challenge the ALJ’s conclusion that the I.G. established the presence of the aggravating factors in 42 C.F.R. §§ 1001.102(b)(1) (financial loss of $50,000 or more), 1001.102(b)(2) (criminal conduct committed for one year or more), and 1001.102(b)(5) (sentence included incarceration).  We therefore summarily affirm the ALJ’s conclusion that the I.G. established these three aggravating factors.  See 42 C.F.R. § 1005.21(e); Krupka at 5.

II.    Petitioner did not establish the mitigating factor in 42 C.F.R. § 1001.102(c)(2), and there is no genuine dispute of material fact regarding that issue.

When (as here) one or more aggravating factors justify an exclusion longer than five years, the following mitigating factor, if established, may be considered as a basis for reducing the period of exclusion to no less than five years:  “The record in the criminal

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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.”  42 C.F.R. § 1001.102(c)(2) (emphasis added).  To establish this mitigating factor, “Petitioner must prove not only that he had a mental, emotional, or physical condition but also that the sentencing court made a finding that Petitioner had that condition before or during the commission of the crime and that the condition reduced his culpability.”  Mitchell Townsend, DAB No. 3205, at 11 (2025). 

Because Petitioner’s appeal is from a grant of summary judgment, we must decide whether there is a genuine dispute of material fact about whether the district court made the requisite findings relevant to section 1001.102(c)(2).  See Anderson v. Liberty Lobby, 477 U.S. 242, 249 (1986) (“[A]t the summary judgment stage the judge’s function is not himself to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial.”).  We find no such dispute because, as discussed below, the record of Petitioner’s criminal proceeding unequivocally shows that the district court did not make the reduced-culpability determination.  Because no reasonable mind could conclude otherwise, the I.G. is entitled to summary judgment on the mitigating-factor issue.  Cf. Matsushita Elec. Industrial Co., Ltd., 475 U.S. 574, 587 (1986) (there is “no genuine issue for trial” when “the record, taken as a whole, could not lead a rational trier of fact to find for the non-moving party” (internal quotation marks omitted)); Green Valley Healthcare & Rehab. Ctr., DAB No. 2947, at 8 (2019) (noting that a genuine factual dispute does not exist “‘when a putatively disputed body of evidentiary material could not, even assuming a sympathetic factfinder, reasonably support a finding crucial to the nonmoving party’s legal position’” (quoting Johnson v. Perez, 823 F.3d 701, 705 (D.C. Cir. 2016)).

Petitioner asserts that the district court made a reduced-culpability determination in support of its downward variance (that is, its imposition of a term of incarceration below the advisory guidelines range).  See P. Br. at 6 (asserting that the “reduced sentencing” was based on “reduced culpability” due to his mental, emotional, or physical condition).  But that assertion is not supported by the record. 

As outlined in the Case Background, in Petitioner’s criminal proceeding, the district court specified multiple reasons for granting the variance during the sentencing hearing, none of which relate to Petitioner’s mental, emotional, or physical condition before or during the offense, or his culpability for the offense.  P. Ex. 4, at 36-37 (“I’m going to give a downward variance, so let me go through the mitigation in the case and the reasons for the downward variance that I’m going to grant.”).  Moreover, despite statements by the probation office about a variance being appropriate based on Petitioner’s unspecified “health issues,” P. Ex. 1, at 18 (¶ 99), at no point during the sentencing hearing did the court mention or allude to Petitioner’s mental, emotional, or physical condition, except to note that he was “a very good candidate for rehabilitation” given his performance on

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pretrial services release.  P. Ex. 4, at 37.  Tellingly, the only “medical condition” the court considered was Petitioner’s “wife’s medical condition,” not any medical condition of his own.  Id. at 38.

Further, the “Statement of Reasons” form, which memorialized the court’s reasons for the downward variance, reflects no finding of reduced culpability due to a mental, emotional, or physical condition.  In fact, under the heading for “history and characteristics of the defendant,” the court conspicuously omitted selecting the boxes for “mental and emotional condition” and “physical condition” as reasons for granting the variance.  P. Ex. 3, at 3 (¶ VI.C).  Nor did the court check the boxes for “drug or alcohol dependence” or “diminished capacity” – characteristics that a defendant might plausibly cite as grounds for mitigation of culpability.  Id. Instead, the court checked the boxes corresponding to the reasons given at the sentencing hearing, including Petitioner’s community ties, employment record, family ties and responsibilities, military service, pre-sentence rehabilitation, and remorse.  Id.

While conceding that the district court did not make an explicit reduced-culpability determination (P. Br. at 6), Petitioner maintains that an “inference could be reasonably drawn” that the court made the determination by implication given “the significant reduction in Petitioner’s sentence and the totality of the criminal record” (id. at 7 (emphasis added)). 

We find the proposed inference unreasonable for several reasons.  First, it is unreasonable because the district court explicitly and specifically set forth the reasons for the significant reduction in Petitioner’s sentence, as the court was required to do by federal law, and those reasons did not include reduced culpability due to any mental, emotional, or physical condition.  See P. Ex. 4, at 36-38; 18 U.S.C. § 3553(c)(2) (requiring district courts to “state in open court the reasons for its imposition of the particular sentence,” including “the specific reason for the imposition of a sentence different from that described [in the applicable guidelines]”); Nabil Mohsen Mohsen Al-Subari, DAB No. 3162, at 8 (2024) (rejecting contention that the reduced-culpability finding could be inferred from imposition of a sentence below the recommended guidelines range because the court was required to “state its reasons for imposing such a sentence”). 

In addition, the proposed inference is unreasonable because Petitioner did not allege in the criminal proceeding (either at the sentencing hearing or in his pre-hearing memorandum) that a mental, emotional, or physical condition reduced his culpability, nor did Petitioner ask the court to grant him leniency on that basis.8  See Al-Subari at 8-9

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(finding the inference “unreasonable because [p]etitioner did not ask the district court to impose a sentence below the guidelines range based on a claim of reduced culpability”).  Although Petitioner informed the court that he had a “drinking problem” for which he had sought help, he never suggested that alcohol abuse or dependence (or any other mental or physical condition) played a role in his offense.  P. Ex. 4, at 19.  Petitioner now claims it is “undisputed” that his “struggles with alcoholism began as early as 2016.”  P. Br. at 5.  But, at the time of sentencing, Petitioner’s counsel argued that it was, “in fact, within the last year” that Petitioner “began to think that he had a drinking problem,” and then sought help.  P. Ex. 4, at 19.  Petitioner himself never addressed his alcohol use in his statement to the court.  Id. at 22-24.  Regardless of when Petitioner now contends his drinking problem began, the court never determined that Petitioner had a drinking problem before or during the commission of his offense that reduced his culpability. 

The inference proposed by Petitioner is unreasonable for one additional reason – namely, the district court’s reaction to comments about his mental state in committing the offense.  During the sentencing hearing, Petitioner stated that he had “turned a blind eye . . . or a deaf ear to” advice about the wrongfulness of his false billing scheme, implying that he may not have acted with a fully culpable state of mind in committing the offense.  P. Ex. 4, at 18 (statement of counsel); see also id. at 22 (apologizing for his “blindness”), 23 (stating that he did not listen to advice that “what I was doing was improper” because “I was trying to keep my business going”).  The court emphatically rejected that implication, stating that “[w]hen I looked at this, I really see willful blindness to the point where it’s not just blindness; it’s very willful. . . .  I mean, these were blatant violations; this was fraud.  And it went on for a period of at least five years, probably closer to eight or nine.”  Id. at 36. 

Petitioner emphasizes that the district court identified “presentence rehabilitation” as a reason for the downward variance on the Statement of Reasons form.  P. Br. at 5-6.  The court’s finding of presentence rehabilitation, however, relates to Petitioner’s “performance on pretrial services release,” which included participation in mental health and “substance use” treatment through the Veterans Administration.  See P. Ex. 4, at 37; P. Ex. 7, at 1-2.  The court’s finding that Petitioner proactively addressed certain ongoing mental health and substance use problems while awaiting sentencing is clearly not a determination that those problems (assuming they existed before or during commission of the offense) mitigated his culpability for the offense.  Cf. Joseph M. Rukse, Jr., R.Ph., DAB No. 1851, at 8-9 (2002) (“[A] provision in a sentencing order [recommending drug abuse treatment] 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.”).  In evaluating Petitioner’s performance on pretrial services release and finding him to be “a very good candidate for rehabilitation,” the court was not examining the circumstances of Petitioner’s offense and evaluating his legal or moral responsibility for it.  Rather, the court was assessing the probability that

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Petitioner would turn his life around and not reoffend after completing his sentence.  P. Ex. 4, at 37 (stating that Petitioner “can work through this” and “be a productive member of society”). 

Petitioner cites the Board’s decision in Haspel (P. Br. at 5), but that case is materially distinguishable from the present one.  In Haspel, the I.G. excluded a physician for 10 years based on a conviction for unlawfully distributing a controlled substance.  See Arthur Carl Haspel, D.P.M., DAB CR1149 (2004), rev’d, Arthur C. Haspel, D.P.M., DAB No. 1929 (2004).  During his criminal sentencing hearing, the physician testified that he suffered from drug addiction and presented corroborating testimony of another physician.  DAB CR1149, at 6.  Acknowledging that the excluded physician had an “ongoing battle” with addiction, the court imposed no prison sentence or fine and sentenced him to three months of home confinement and five years of supervised release.  Id.; DAB No. 1929, at 5.  During the subsequent administrative proceedings to contest the exclusion, the ALJ concluded that the physician suffered from addiction and further “inferred” that the court had “departed downward from the sentencing recommendation at least in part because of [the physician’s] addiction.”  DAB No. 1929, at 3.  Despite drawing that inference, the ALJ concluded that the record did not establish the mitigating factor in section 1001.102(c)(2).  Id. 

The Board reversed the ALJ in Haspel, holding that it was “not reasonable to infer from th[e] record as a whole that the judge did not determine that [p]etitioner’s addiction reduced his culpability for the offenses.”  Id. at 5 (emphasis added).  In other words, there were “several factors in the record that support the reasonable inference that the presiding judge had made the required determinations”:  (1) drug addiction was the “primary focus” of the physician’s presentation at sentencing; (2) the hearing testimony detailed “multiple negative effects of [the physician’s] addiction on his life and of his resulting impaired and confused mental state at the time he was committing” the offenses; (3) there was testimony about “the extensive and time-consuming efforts [the physician] took to rehabilitate himself from that addiction after his arrest”; and (4) the court “clearly found” the physician “entitled to leniency” given the imposition of a sentence well below the authorized maximum level.  Id. at 4-5. 

Petitioner’s circumstances and the record in his criminal proceedings are not analogous to those in Haspel.  Unlike the physician’s sentencing presentation in Haspel, Petitioner’s case for leniency at sentencing did not focus on any mental, emotional, or physical condition.  Unlike the physician in Haspel, Petitioner presented no testimony or other evidence that such a condition impaired or compromised his mental state during the commission of his offense (over a five-year period).  In addition, unlike the record in Haspel, the record of Petitioner’s sentencing does not show that Petitioner’s past or ongoing mental, emotional, or physical condition was a reason for the court’s sentencing choices.  Finally, the district court when sentencing Petitioner was statutorily required to

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state its reasons for affording leniency, and the court did so, specifying reasons that do not include any mental, emotional, or physical condition.

For all these reasons, we conclude that the I.G. is entitled to summary judgment because we cannot reasonably infer that the mitigating factor under 42 C.F.R. § 1001.102(c)(2) is established based on the record in Petitioner’s criminal proceedings.

III.    A 14-year exclusion is not unreasonable given the established aggravating factors and the absence of any mitigating factor.

Petitioner’s challenge to the 14-year exclusion rests entirely on his contention (which we reject) that the mitigating factor under section 1001.102(c)(2) should reduce the length of his exclusion.  Notably, Petitioner does not argue that the 14-year exclusion is unreasonable given the three established aggravating factors.  We agree with the ALJ that the length of the exclusion is “not unreasonable considering the existence of the three aggravating factors and no mitigating factor.”  ALJ Decision at 17.

In addressing whether a mandatory exclusion longer than the five-year statutory minimum is unreasonable, an ALJ or the Board must “review[ ] the length of [the] 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) (internal quotation marks omitted); Craig Richard Wilder, M.D., DAB No. 2416, at 8 (2011) (stating that the reviewer’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”).  “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 (internal quotation marks omitted). 

Here, all three established aggravating factors deserve substantial weight given the relevant circumstances.  The first factor is that Petitioner’s “acts resulting in the conviction, or similar acts, caused, or were intended to cause,” a financial loss of at least $50,000 to a government agency or program or to one or more other entities.  42 C.F.R. § 1001.102(b)(1).  As the ALJ noted, Petitioner agreed that the financial loss to government health care programs and private health insurers from his fraud scheme totaled at least $3,746,288.16.  ALJ Decision at 5, 10, 11; I.G. Ex. 3 (plea agreement), at 13-15; P. Ex. 1, at 7 (¶ 18).  That amount is roughly 75 times more than the $50,000 threshold required by section 1001.102(b)(1).  The loss incurred by governmental health care programs alone was $2,597,664.70 – more than 50 times the threshold.  I.G. Ex. 3, at 3, 17, 21.  The Board has held that the aggravating factor in section 1001.102(b)(1) is entitled to significant weight when the proven financial loss is “substantially more than the threshold,” as it plainly is here.  Shaun Thaxter, DAB No. 3053, at 31 (2021); see also

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Elizabeth A. Holmes, DAB No. 3222, at 22 (2026) (quoting Thaxter and citing other relevant Board decisions); Erik X. Alonso, DAB No. 3186, at 10 (2025) (“[L]arge multiples of the applicable [financial loss] threshold . . . support significant prolongation of an exclusion period.”); Phong Hung Tran, M.D., DAB No. 3148, at 20 (2024) (finding a financial loss 20 times the threshold to be an “exceptional aggravating factor to be accorded substantial weight”).

The second aggravating factor – the duration of criminal conduct – likewise deserves significant weight.  That factor exists if “acts [by the excluded individual] that resulted in the conviction, or similar acts, were committed over a period of one year or more.”  42 C.F.R. § 1001.102(b)(2).  Petitioner admitted in his plea agreement that his unlawful acts – including the submission of thousands of health care benefit claims that he knew to be materially false – spanned at least five years, from 2016 through 2021.  See I.G. Ex. 3, at 13 (agreeing that he “knowingly and willfully execute[d] a scheme to defraud” health care programs and insurers “[f]or a period of years continuing from at least 2016 through 2021”).  The Board has held that “significant weight” may reasonably be assigned to criminal conduct that continued for even slightly longer than the one-year threshold, and that “simply meeting the threshold . . . is a clear indication of untrustworthiness.”  Hussein Awada, M.D., DAB No. 2788, at 8-10 (2017) (upholding 23-year exclusion based partly on criminal acts committed over approximately 14 months); see also Kimberly Jones at 11 (relying on the relevant holdings in Awada).  Petitioner’s substantially longer period of fraudulent conduct is especially egregious given that he actively sought to conceal his fraud and avoid detection (as explained in his plea agreement).  See I.G. Ex. 3, at 14.  In short, the five-year duration of Petitioner’s fraudulent scheme, like the large financial loss resulting from that scheme, supports a substantial lengthening of the exclusion period.  See Lakshmi Bethi, DAB No. 3223, at 10-12 (2026) (concluding that a five-year lengthening of the mandatory minimum exclusion based solely on the nearly seven-year duration of the petitioner’s criminal conduct was not unreasonable). 

The third aggravating factor, Petitioner’s 24-month term of incarceration, also supports lengthening the mandatory minimum exclusion period.  The Board has held that terms of incarceration shorter than 24 months are entitled to substantial weight and are evidence not only of the excluded individual’s untrustworthiness but also of the seriousness of the individual’s criminal conduct.  Roji Esha, DAB No. 3076, at 29-30 (2022) (holding that a 90-day term of incarceration supported lengthening the exclusion period and demonstrated the seriousness of the excluded individual’s criminal conduct); Thaxter at 32 (affirming a 10-year exclusion based on a six-month term of incarceration plus one other aggravating factor, and crediting the ALJ’s determination that a six-month term was “not insignificant”); Alonso at 11 (noting that “any incarceration period, however short, justifies increasing an exclusion,” and that “even eight months of incarceration is a relatively substantial period”). 

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Because each of the three established aggravating factors deserves substantial weight and supports a substantial lengthening of the statutory minimum exclusion period, and because no mitigating factor is present, we conclude that the 14-year exclusion imposed by the I.G. is not unreasonable.  See Mitchell Townsend at 8, 12-15 (sustaining the 12-year exclusion of an individual convicted of conspiracy to commit health care fraud based on three aggravating factors – $437,850 financial loss to a federal program; criminal acts committed over a period of approximately 33 months; and a one year and one day sentence of incarceration); Kimberly Jones at 7-17 (sustaining a 15-year exclusion based on three aggravating factors – a 78-month term of incarceration, criminal conduct spanning two and one-half years, and pharmacy license suspension); Edwin L. Fuentes, DAB No. 2988, at 12 (2020) (upholding a 15-year exclusion based on a 24-month prison term plus two other aggravating factors), aff’d, Fuentes v. Becerra, No. 4:20-CV-00026, 2021 WL 4341115 (W.D. Va. Sept. 23, 2021); Jeremy Robinson, DAB No. 1905, at 2 (2004) (concluding that a 15-year exclusion “was within a reasonable range, where there were three fully established and significant aggravating factors and no mitigating factors”).

Conclusion

We affirm the ALJ’s conclusion that the I.G. is entitled to summary judgment and that:  (1) Petitioner’s 2024 federal conviction for health care fraud is a basis to exclude him from participation in all federal health care programs under section 1128(a)(1) of the Act; and (2) the 14-year exclusion imposed by the I.G. is not unreasonable given the presence of three aggravating factors and the absence of any mitigating factor.