Sonny S. Saggar, M.D., DAB No. 3240 (2026)

FINAL DECISION ON REVIEW OF
ADMINISTRATIVE LAW JUDGE DECISION

Sonny S. Saggar, M.D. (Petitioner) appeals an Administrative Law Judge (ALJ) decision upholding a determination of the Inspector General (I.G.) to exclude Petitioner from participating in all federal health care programs for 12 years under section 1128(a)(1) of the Social Security Act (Act).  Sonny Saggar, DAB CR6885 (2026) (ALJ Decision).1  The ALJ concluded that the I.G. lawfully excluded Petitioner based on his conviction for conspiracy to make false statements relating to health care matters, specifically, conspiring to bill Medicare and Medicaid for un-reimbursable services.  The ALJ also concluded that the length of the exclusion was not unreasonable based on four aggravating factors and the absence of any cognizable 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 United States 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.  Act § 1128(a)(1); see also id. § 1128(h) (defining “State health care program”); 42 C.F.R. § 1001.101(a).2 

An individual is “convicted” within the meaning of section 1128(a)(1) when, among other things, “a judgment of conviction has been entered against the individual . . . by a Federal, State, or local court” or “when a plea of guilty or nolo contendere by the individual . . . has been accepted by a Federal, State, or local court.”  Act § 1128(i)(1), (3); see also 42 C.F.R. § 1001.2.  “Although a mandatory exclusion [under section 1128(a)] is based on a criminal conviction, the exclusion’s purpose is ‘not to punish the

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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)).

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 specified “aggravating factors” in 42 C.F.R. § 1001.102(b) are present.  If any aggravating factor justifies an exclusion longer than the statutory minimum, then the three mitigating factors specified in the regulation – and only those factors – may be applied as a basis for reducing the exclusion period to no less than five years.  42 C.F.R. § 1001.102(c).

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).  “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 “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

Petitioner is a physician who was licensed to practice medicine in Missouri and Illinois and enrolled as a supplier in Medicare since at least 2009.  ALJ Decision at 3; I.G. Ex. 2, at 3, 9.  Petitioner operated several healthcare businesses in Missouri, including St. Louis General Hospital (SLGH), an urgent care and primary care clinic.  I.G. Ex. 2, at 3.  Petitioner was listed as SLGH’s president and a member of its Board of Directors.  Id. 

On July 26, 2023, Petitioner and co-defendant “RB,” SLGH’s office manager, were charged in a nine-count indictment in the United States District Court for the Eastern District of Missouri (district court).  I.G. Ex. 3.  Count one charged Petitioner under 18 U.S.C. § 3713 with the crime of Conspiracy “to make false and fraudulent representations to Medicare and Medicaid regarding health care services provided at SLGH in order to make money and profit.”  Id. at 8-9.  Counts two through nine charged Petitioner under

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18 U.S.C. § 10354 with the crime of making False Statements Related to Health Care Matters.  Id. at 13-14. 

On August 15, 2024, in accordance with a written plea agreement, Petitioner pled guilty to count one.  I.G. Ex. 2; I.G. Ex. 4.  In the plea agreement, Petitioner admitted to knowingly violating 18 U.S.C. § 371, and admitted that an element of that crime was “an agreement or . . . understanding to make false statements related to health care matters, in violation of 18 U.S.C. § 1035.”  I.G. Ex. 2, at 2-3.  Petitioner admitted to the following facts, which form the factual predicate for his offense:

• From July 2018 to July 2023, Petitioner employed numerous assistant physicians (APs)5 though SLGH and engaged in a criminal conspiracy with the office manager of SLGH and others.  I.G. Ex. 2, at 11 (¶ x).
• Petitioner “conspired to bill un-reimbursable services to Medicare and Medicaid that were performed by APs but billed as if they had been performed by [Petitioner].”  Id. at 11 (¶ y).
• Petitioner also “caused claims for payment to be made to Medicare and Medicaid that falsely listed [Petitioner] as the rendering provider when in fact they were performed by Co-Conspirator No. 1, who was under federal indictment at the time and whose services were not reimbursable by Medicare and Medicaid.”  Id.  Petitioner knew that Co-Conspirator No. 1 was under a federal criminal indictment and admits that he and his co-conspirators “concealed from both Medicaid and Medicare that Co-Conspirator No. 1 was performing services” at an SLGH facility by naming Petitioner, “rather than Co-Conspirator No. 1, as the rendering provider in the claims for payment.”  Id. at 14-15 (¶¶ hh, ii).

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• Petitioner also “recruited and offered stipends to physicians to induce them to sign up to be collaborating physicians for APs at SLGH,” and “falsely told those physicians that they merely needed to sign blank, undated CPA [collaborative practice agreement] Verification Forms in order to fulfill their roles as collaborating physicians.”  Id. at 12 (¶ z).
• As a result of Petitioner’s actions, “APs often did not meet and did not receive any training from their purported collaborating physicians,” as required by law.  Id. at 12 (¶ bb).  Moreover, “contrary to the legal requirements regarding the use of APs, a collaborating physician was not continuously present at SLGH, and APs frequently saw patients without a collaborating physician present, even though they had not received the required 120 hours of clinic time during which the collaborating physician and the AP were required to see and treat patients together.”  Id.
• Furthermore, “rather than ensuring APs received training and supervision from their purported assigned collaborating physicians,” Petitioner “encouraged APs at SLGH to consult with each other regarding medical questions.”  Id. at 13 (¶ cc).
• Petitioner “knew that claims for services performed at SLGH were being submitted to Medicare and Missouri Medicaid as if they had been performed by [Petitioner]” even though he “knew that the services were in fact being performed by APs.”  Id. at 13 (¶ dd).
• Petitioner and his co-conspirators “caused claims to be billed to Medicare that falsely listed [Petitioner] as the rendering provider, when in fact APs—for whose service Medicare did not pay (except in limited circumstances not applicable here)—were providing services.”  Id. at 13 (¶ ee).
• Petitioner and his co-conspirators further “caused claims to be billed to Medicaid that falsely listed [Petitioner] as the rendering provider even though the services were rendered by APs who did not have CPAs or adequate supervision in place and thus were not reimbursable by Medicaid.”  Id. at 13 (¶ ff).
• Petitioner also “caused SLGH claims to be billed to Medicare and Missouri Medicaid that falsely indicated [he] was the performing provider, even during times when [he] was out of town, including during times when he was abroad.”  Id. at 14 (¶ gg).

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• As a result of the conspiracy to make false statements related to health care matters, Petitioner “was responsible for causing a total loss of $742,528.07 to the Medicare and Missouri Medicaid programs,” including $642,942.70 to Medicare and $99,585.37 to Missouri Medicaid.  Id. at 15 (¶ jj).

On February 19, 2025, the district court accepted Petitioner’s guilty plea, entered judgment against Petitioner on count one, and sentenced Petitioner to 35 months of incarceration and three years of supervised release.  I.G. Ex. 4, at 1-3.  The district court further ordered Petitioner to pay restitution of $642,942.70 to Medicare and $99,585.37 to Missouri Medicaid (totaling $742,528.07).  Id. at 6. 

On April 8, 2025, the Illinois Department of Financial and Professional Regulation (IDFPR) issued an order indefinitely suspending Petitioner’s Physician and Surgeon License (medical license) based on his conspiracy conviction, which the IDFPR described as a “criminal health care or insurance fraud offense.”  I.G. Ex. 5, at 1-2.6

By letter dated September 30, 2025, the I.G. notified Petitioner that due to his conviction he was excluded from participation in all federal health care programs for 12 years under section 1128(a)(1) of the Act.  I.G. Ex. 1, at 1.  The I.G. explained that it added seven years to the minimum five-year exclusion period based on the following four aggravating factors:

1. The acts resulting in the conviction, or similar acts, caused, or were intended to cause, a financial loss to a government agency or program or to one or more other entities of $50,000 or more.  . . .  The court ordered you to pay approximately $742,500 in restitution.
2. The acts that resulted in the conviction, or similar acts, were committed over a period of one year or more.  The acts occurred from about July 2018 to about July 2023.
3. The sentence imposed by the court included incarceration.  The court sentenced you to 35 months of incarceration.
4. The individual or entity has been the subject of any other adverse action by any Federal, State or local government agency or board if the adverse action is based on the same set of circumstances that serves as the basis for the imposition of the exclusion.  The [IDFPR] suspended your license to practice medicine.

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I.G. Ex. 1, at 1; see also 42 C.F.R. § 1001.102(b)(1), (2), (5), (9).

ALJ Proceedings and Decision

Petitioner requested an ALJ hearing, challenging the basis for and length of his exclusion.  Request for Hearing (RFH) at 1.  Before the ALJ, the I.G. filed a brief (I.G. Br. to ALJ), a reply brief (I.G. Reply), and five exhibits (I.G. Exs. 1-5).  Petitioner filed a brief (P. Br. to ALJ), a reply brief, two notices of “supplemental authority,” and no exhibits.  Petitioner also filed a motion to dismiss the I.G.’s exclusion which the ALJ denied.  Petitioner requested “cancellation” of the exclusion or, alternatively, an exclusion of no more than six months.  P. Br. to ALJ at 13.  The I.G. argued that there is a valid basis for the exclusion under section 1128(a)(1) and that the duration of the 12-year exclusion is reasonable given four aggravating factors and no mitigating factor.  I.G. Br. to ALJ at 1-3, 3-7; I.G. Reply at 1, 5-8.

The ALJ admitted the I.G.’s exhibits without objection and issued a decision based on the written record, noting that neither party offered any witnesses.  ALJ Decision at 2-3.  Upholding the 12-year exclusion imposed against Petitioner, the ALJ made several determinations.  First, Petitioner’s exclusion is mandatory under section 1128(a)(1) of the Act because he was convicted of an offense related to the delivery of items and services under Medicare and Medicaid.  Id. at 4-5.  Second, the I.G. established four aggravating factors that justified extending the exclusion period beyond the minimum five years.  Id. at 5-7.  Third, Petitioner failed to establish the existence of any cognizable mitigating factor under section 1001.102(c).  Id. at 7-8.  Fourth, based on a qualitative assessment of the four aggravating factors (and no mitigating factors), the length of Petitioner’s 12-year exclusion is not unreasonable.  Id. at 8-10.   

Petitioner timely filed a notice of appeal and a supporting brief (P. Br.) with the Board.  The I.G. filed a response brief (I.G. Resp.), and Petitioner filed a motion for leave to file a reply, accompanied by his reply brief (P. Reply).7  We grant Petitioner’s motion for leave to file a reply.  After briefing was complete, Petitioner also filed a “motion to correct the record” and a “notice of supplemental correspondence,” which we address below. 

Standard of Review

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

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Analysis

Petitioner appeals the ALJ Decision on three grounds.  P. Br. at 1-2.  First, Petitioner argues that the exclusion was not valid because the ALJ “applied an incorrect statutory interpretation standard” to section 1128(a)(1).  Id. at 1 (citing Loper Bright Enters. v. Raimondo, 603 U.S. 369 (2024)).  Petitioner asserts that a correct textual reading of section 1128(a)(1), under the “post-Loper Bright framework,” does not support a mandatory exclusion.  Id. at 1-2, 3-4.  Second, while not disputing the ALJ’s conclusion that Petitioner did not establish any of the three mitigating factors under section 1001.102(c), Petitioner argues that the ALJ improperly declined to consider other “relevant circumstances bearing on whether a 12-year exclusion is unreasonable.”  Id. at 2, 4-5.  Third, Petitioner challenges the ALJ’s application and weighing of the four aggravating factors, arguing that the 12-year exclusion is disproportionate given the complete record and the exclusion statute’s purpose.  See id. at 2, 5-6; P. Reply at 11-12.  Petitioner also argues that the ALJ violated his due process rights by not conducting a “genuine individualized assessment” of whether the 12-year exclusion serves the purpose of section 1128(a)(1).  P. Reply at 10.8

Petitioner requests that the Board:  (i) reverse the ALJ’s conclusion that he is subject to a mandatory exclusion, “following independent Loper Bright statutory analysis, and vacate the exclusion [in] its entirety”; or (ii) vacate the 12-year exclusion and remand for an “individualized determination of an appropriate exclusion length that properly considers all circumstances”; or (iii) reduce the exclusion period to five years.  P. Br. at 6-7. 

We conclude that the ALJ Decision is supported by substantial evidence and free of legal error.  In Section I, we hold that Petitioner’s offense plainly meets the criteria under section 1128(a)(1) for a mandatory exclusion, and we reject Petitioner’s argument that the Board must reconsider his exclusion under a “post-Loper Bright framework.”  In Section II, we hold that the ALJ properly considered the facts and circumstances of the four established aggravating factors, correctly recognized the absence of any cognizable mitigating factor, and appropriately concluded that a 12-year exclusion is not unreasonable.  In Section III, we address Petitioner’s constitutional and other arguments.

I. The ALJ’s conclusion that Petitioner is subject to exclusion under § 1128(a)(1) of the Act is supported by substantial evidence and free of legal error.

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.  Petitioner concedes that he pled guilty to count one of the

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indictment – knowingly conspiring to make false statements related to health care matters in violation of 18 U.S.C. §§ 371 and 1035 – and does not dispute that he was “convicted” within the meaning of the Act.  See P. Br. at 2; I.G. Ex. 3, at 8 (¶ 25); see also Act § 1128(i)(1), (3).  Accordingly, our analysis turns to whether Petitioner’s conviction is “related to” the delivery of an item or service under Medicare or under any State health care program.

1. Petitioner’s criminal conspiracy offense is related to the delivery of items or services under the Medicare and Missouri Medicaid programs.

“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) (citing James O. Boothe, DAB No. 2530, at 3 (2013) and James Randall Benham, DAB No. 2042, at 5 (2006)); see also Scott D. Augustine, DAB No. 2043, at 5-6 (2006) (collecting cases).9  “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.”  Shaun Thaxter, DAB No. 3053, at 11 (2021) (internal quotation marks omitted).   

Substantial evidence in the record supports the ALJ’s conclusion that Petitioner’s criminal offense was related to the delivery of items or services under Medicare and Missouri Medicaid.  ALJ Decision at 4-5.  As the ALJ found, the evidence shows “Petitioner was convicted of conspiracy to bill un-reimbursable services to Medicare and Medicaid that were performed by assistant physicians, but billed as if they were performed by the Petitioner.”  Id. at 5 (citing I.G. Ex. 2, at 11).  Petitioner admitted that as a result of this false billing conspiracy he “was responsible for causing a total loss of $742,528.07 to the Medicare and Missouri Medicaid programs.”  I.G. Ex. 2, at 15 (¶ jj); see also ALJ Decision at 3, 5.  Accordingly, the district court ordered Petitioner to “make restitution” to those programs in the amount of $742,528.07.  See ALJ Decision at 5; I.G. Ex. 4, at 6.  These circumstances unquestionably show a “common-sense nexus” between Petitioner’s offense and the delivery of items or services under Medicare and Medicaid.  See Rosa Velia Serrano, DAB No. 2923, at 6-7 (2019) (“‘False billing for items or services has been repeatedly held to be an offense related to the delivery of an item or

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service within the meaning of section 1128(a)(1).’” (quoting Joann Fletcher Cash, DAB No. 1725, at 3 (2000)). 

We reject Petitioner’s contention that his conviction is not sufficiently “related to” the delivery of items or services.  See, e.g., P. Br. at 3 (arguing that his offense is “indirectly related” because it concerns only “administrative and billing paperwork”); P. Reply at 7-8 (arguing that section 1128(a)(1) does not cover claim submissions, which are separate from the “clinical delivery relationship”).  The Board has long upheld exclusions under section 1128(a)(1) based on convictions that, as here, involve submissions to state or federal healthcare programs of false claims for reimbursement.  See Joann Fletcher Cash at 3 (collecting court cases).  The Board has specifically upheld exclusions under section 1128(a)(1) in cases involving conspiracy convictions based on the submission of false claims for reimbursement under Medicare or Medicaid.  See, e.g., Mitchell Townsend, DAB No. 3205, at 6 (2025) (conspiracy to commit health care fraud); Eric X. Alonso, DAB No. 3186, at 2-3, 7 (2025) (conspiracy to make false statements relating to health care matters under 18 U.S.C. § 371); Douglas Schram, R.Ph., DAB No. 1372, at 20-21 (1992) (attempted conspiracy to defraud Medicaid). 

Submitting a false claim for reimbursement under Medicare or Medicaid, or facilitating such a filing, “is a ‘representation’ [to the program] that the billing health care provider ‘has delivered a covered item or service to a program beneficiary.’”  Olandis Moore, DAB No. 2963, at 5 (2019) (quoting Kimbrell Colburn, DAB No. 2683, at 5 (2016) (citing cases)); see also Francis Shaenboen, R. Ph., DAB No. 1249, at 4 (1991) (holding that the filing of false reimbursement claims is “inextricably intertwined” with the delivery of an item or service, since “a claim by its very nature alleges such delivery”); Jack W. Greene, DAB No. 1078, at 7 (1989) (“The false Medicaid billing and the delivery of the [items] to the Medicaid recipient are inextricably intertwined and therefore ‘related’ under any reasonable reading of that term.”), aff’d, 731 F. Supp. 838 (E.D. Tenn. 1990).  It is immaterial that Petitioner was not convicted for his personal delivery of health care items or services, as his conviction for a false billing conspiracy was plainly related to the delivery of items or services under Medicare and Medicaid.  See Greene at 6-13 (affirming exclusion under section 1128(a)(1) based on false billing conviction even though the act of billing did not involve actual delivery of an item or service); see also Augustine at 5-6 (explaining that under section 1128(a)(1) an offense can be “related to the delivery of items or services” even if the offense itself “did not directly involve the delivery of items or services” and even where “the services were actually provided by an entity different from the individual being excluded”).

We further reject Petitioner’s suggestion that to sustain his exclusion under section 1128(a)(1), the ALJ needed to find that he posed a “clinical danger” to Medicare and Medicaid recipients.  P. Reply at 6 (“Section 1128(a)(1) exists to protect Medicare and Medicaid beneficiaries from providers who have shown themselves dangerous through criminal conduct related to the delivery of health care. . . .  ALJ Bell’s decision contains

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no finding of clinical danger.”).  “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.”  Claudia Haro, DAB No. 3218, at 9 (2025) (internal quotation marks and brackets omitted).  By mandating an 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 exclusion period.”  Id. at 9-10 (internal quotation marks omitted).

2. Loper Bright does not change the Board’s analysis or conclusions.

Petitioner argues that the ALJ “applied an incorrect statutory interpretation standard” to section 1128(a)(1) of the Act.  P. Br. at 1, 3.  He asserts, without supporting authority, that the “common-sense nexus” standard applied by the ALJ was developed through Board decisions “shaped” by the “Chevron” deferential framework.  Id. at 3 (citing Chevron U.S.A., Inc. v. Nat. Res. Def. Council, 467 U.S. 837 (1984)).  He argues that post-Loper Bright, “administrative tribunals must exercise independent statutory judgment” and that the language of section 1128(a)(1) “requires a meaningful connection to the act of delivering healthcare” that is purportedly not present in his case.  Id. at 1, 3.  In Loper Bright, the Supreme Court, overruling Chevron, held that under the Administrative Procedure Act courts “may not defer to an agency interpretation of the law simply because a statute is ambiguous” and must exercise their independent judgment when deciding whether an agency acted within its statutory authority.  603 U.S. at 412-13.

There are at least three flaws in Petitioner’s argument.  First, as the Board has repeatedly held, “there is no ambiguity in section 1128(a)(1).”  Dr. Timothy Baxter, DAB No. 3074, at 28 (2022), aff’d, No. 3:23-cv-92, 2024 WL 627262 (E.D. Va. Feb. 14, 2024), aff’d, 136 F.4th 70 (4th Cir. 2025)); see also Schram at 13 (“[T]here is no ambiguity in the Act as to the scope of section 1128(a)(1)[.]”); Napoleon S. Maminta, M.D., DAB No. 1135, at 7-8 (1990).  Thus, section 1128(a)(1) is not subject to any “reinterpretation” by the Board based on some newly perceived ambiguity. 

Second, Petitioner misinterprets the application and effect of Chevron and Loper Bright in the context of this case.  The Board sits “as part of the administrative adjudication process, not as a federal court,” and so “[w]hile the various court approaches to reviewing agency action inform our thinking, they do not directly apply to our role.”  Orton Motor, DAB No. 2717, at 6 (2016), aff’d, 884 F.3d 1205 (D.C. Cir. 2018); see also Albert Alex Hazzouri Jr., DAB No. 3189, at 20 (2025).  At no time has Chevron “shaped” the Board’s application of section 1128(a)(1) as Petitioner suggests.  Moreover, when the Supreme Court decided in Loper Bright to “leave Chevron behind,” it clarified that it was not calling into question “prior cases that relied on the Chevron framework.”  Loper Bright, 603 U.S. at 412.  The Court explained that “[t]he holdings of those cases that specific agency actions are lawful . . . are still subject to statutory stare decisis despite our change

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in interpretive methodology,” and “[m]ere reliance on Chevron cannot constitute a special justification for overruling such a holding.”  Id. (internal quotation marks and citation omitted).  “Thus, prior Board decisions applying section 1128(a)(1) of the Act and its implementing regulations, and federal court rulings that affirmed those decisions prior to Loper Bright, remain lawful.”  Elizabeth A. Holmes, DAB No. 3222, at 15 (2025).  As noted above, the Board has long held that the phrase “related to” requires no more than a “commonsense nexus” and the Board’s application of that statutory language has long been upheld by federal courts.  See supra at n.9.

Finally, putting aside Petitioner’s flawed Loper Bright analysis, we reject the notion that there is not a “meaningful connection” between Petitioner’s conviction and the delivery of items or services under Medicare and Medicaid.  As explained above, the record evidence establishes a direct connection between Petitioner’s conviction and the delivery of items or services under Medicare and Medicaid.  Petitioner admits that he conspired to bill Medicare and Medicaid for un-reimbursable services delivered by others but billed as if he had performed those services to obtain reimbursement.  I.G. Ex. 2, at 11-15.  Petitioner conceded in his plea agreement that this billing conspiracy resulted in losses to Medicare and Medicaid exceeding $742,500.  Id. at 15.  Petitioner’s contention that these uncontested facts do not establish the requisite connection under section 1128(a)(1) has no merit.  “Section 1128(a)(1) requires merely that an offense be ‘related to’ the delivery of an item or service under a covered program,” and “the Board has determined that an offense committed by someone providing billing or accounting services was related.”  Timothy Wayne Hensley, DAB No. 2044, at 7 (2006) (citing cases).

II. The ALJ’s determination that Petitioner’s 12-year exclusion is reasonable based on four aggravating factors and the absence of any mitigating factor is supported by substantial evidence and free of legal error.

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.”  Sushil Aniruddh Sheth, M.D., DAB No. 2491, at 5 (2012), aff’d in part, No. 13-cv-0448, 2014 WL 11813597 (D.D.C. Jan. 10, 2014)).  This evaluation “does not rest on the specific number of aggravating or mitigating factors or any rigid formula for weighing those factors.”  Sheth at 5.  Rather, the ALJ makes “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.”  Id.  The I.G. has “broad discretion” in determining an exclusion length, based on the I.G.’s “vast experience” in implementing exclusions.  Janice Cassandra Wrenn, DAB No. 3118, at 14 (2023) (citing 57 Fed. Reg. 3,298, 3,321 (Jan. 29, 1992)).  An ALJ may not substitute his or her judgment for that of the I.G. or determine a “better” length of exclusion.  Sheth at 5.  Instead, the ALJ’s role is “to review the record before [her] to determine what the

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evidence establishes as to the ‘demonstrated criteria,’ i.e., the aggravating and mitigating factors” existing in the case.  Fuentes, DAB No. 2988, at 9.

Here, the ALJ, in accordance with Board precedent, appropriately weighed the four aggravating factors established by the I.G, and the absence of any cognizable mitigating factor, to conclude that the length of the exclusion is reasonable.  ALJ Decision at 5-10.  Again, those aggravating factors are:  (1) the acts resulting in Petitioner’s conviction, or similar acts, caused, or were intended to cause, a financial loss to government programs of $50,000 or more; (2) the acts resulting in Petitioner’s conviction occurred over a period of one year or more; (3) Petitioner’s sentence included incarceration; and (4) Petitioner was subjected to an “adverse action” by another agency “based on the same set of circumstances that serves as the basis for the imposition of the exclusion.”  See I.G. Ex. 1, at 1; 42 C.F.R. § 1001.102(b)(1), (2), (5), (9).

1. The ALJ correctly found the absence of any recognized mitigating factor.

Petitioner concedes that he did not establish any mitigating factors under section 1001.102(c).  P. Reply at 12.  Nevertheless, Petitioner contends that the ALJ erred by not considering other “relevant circumstances” in determining the appropriate length of his exclusion, including:  “absence of patient harm; absence of personal financial enrichment; clean disciplinary record during incarceration; First Step Act programming completion; GED tutoring service; substantial restitution payment during incarceration; 27 years of unblemished clinical practice serving vulnerable populations; and no clinical restrictions imposed by the sentencing court.”  P. Br. at 4-5.  The ALJ did not err in rejecting Petitioner’s contention that these alleged circumstances should serve to reduce the length of his 12-year exclusion.  ALJ Decision at 8.

“In deciding whether to reduce an exclusion period exceeding the statutory minimum, we are precluded by the I.G.’s regulations from considering any circumstances other [than] the mitigating factors specified in those regulations.”  Gracia L. Mayard, M.D., DAB No. 2767, at 9 (2017); see also Hussein Awada, M.D., DAB No. 2788, at 8 (2017) (“Only the mitigating factors identified in section 1001.102(c) may be considered and applied to reduce a period of exclusion.”).  “[T]he governing regulations do not recognize personal or professional attributes of the excluded individual (e.g., reputation, character) as mitigating factors.”  Nabil Mohsen Al-Subari, DAB No. 3162, at 11 (2024), appeal pending, No. 2:25-cv-10166 (E.D. Mich.); see also Eugene Goldman, M.D., DAB No. 2635, at 10 (2015) (“[N]one of the enumerated mitigating factors permit the consideration of Petitioner’s qualifications, or skill or ability as a physician, or his standing in the medical community, or his reputation among the patients he served, to reduce the exclusion period.”). 

Relatedly, we reject Petitioner’s argument that the purported absence of any finding that Petitioner is “clinically dangerous” bears on the reasonableness of the length of his

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exclusion.  See P. Reply at 13 (“Excluding a physician who poses no demonstrated continuing risk for 12 years, when the statutory minimum is 5, is an action that departs from the agency’s own stated rationale without explanation.”).  Petitioner provides no authority for this argument.  Contrary to Petitioner’s contention, the purpose of section 1128(a) is not merely to exclude practitioners that pose a risk to the health and safety of Medicare or Medicaid beneficiaries.  Again, section 1128’s purpose is to protect federal health care programs and their beneficiaries from potentially untrustworthy individuals based on convictions, like Petitioner’s, which meet the criteria for exclusion.  See Peter J. Edmonson, DAB No. 1330, at 4 (1992). 

Moreover, the aggravating and mitigating factors set forth under 42 C.F.R § 1001.102 reflect the degree or level of untrustworthiness of the excluded individual and were designed to evaluate the threat that individual poses to federal health care programs.  See Roji Esha, DAB No. 3076, at 28 (2022); see also 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.”).  Thus, the ALJ appropriately considered only the aggravating and mitigating factors under section 1001.102 in evaluating the “threat” Petitioner “poses to the Medicare program and its beneficiaries,” Sheth at 16, without regard to whether he was found to be “clinically dangerous.”

We further reject Petitioner’s suggestion that his false billing conspiracy posed no harm to Medicare or Medicaid recipients.  Here, Petitioner admitted medical services were provided to Medicare and Medicaid beneficiaries by APs without the required supervision or training.  See supra at 3-4.  Still further, “[a] multi-year false billing scheme, like the one Petitioner perpetrated with his co-conspirators, not only threatens the fiscal integrity of the Medicare and Medicaid programs; it harms beneficiaries of those programs by wasting resources that could otherwise be used to provide them with needed services.”  Alonso at 12 (internal quotation marks omitted); see also Susan Malady, R.N., DAB No. 1816, at 9 (2002) (explaining that an individual convicted of an offense for which Congress has mandated exclusion is “presumed by Congress to be untrustworthy and a threat to federal health care programs and their beneficiaries and recipients”). 

Finally, we reject Petitioner’s contention that his age should serve as a mitigating factor to reduce the length of his exclusion.  Petitioner argues that because he “is 58 years old,” the 12-year exclusion effectively “ends his medical career,” which “cannot be rebuilt after a 12-year absence at that age.”  P. Reply at 10.  When assessing the record, ALJs and the Board do “not consider the excluded individual’s age when the exclusion was imposed and how old that individual would be after an augmented exclusion period ends, because neither is a mitigating factor recognized in 42 C.F.R. § 1001.102(c).”  Samirkumar Shah, M.D., DAB No. 3111, at 13 (2023); accord Cesar M. Cubano-Martinez, M.D., DAB No. 3142, at 8 (2024).

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2. Petitioner’s conduct resulting in his conviction caused losses to Medicare and Medicaid exceeding $742,500, supporting a 12-year exclusion.

The ALJ correctly found that the I.G. established the aggravating factor under section 1001.102(b)(1) because the acts resulting in Petitioner’s conviction caused financial losses to the Medicare and Medicaid programs exceeding the $50,000 threshold.  ALJ Decision at 6.  Petitioner admitted that “as a result of the conspiracy to make false statements related to health care matters . . . [he] was responsible for causing a total loss of $742,528.07 to the Medicare and Missouri Medicaid programs.”  I.G. Ex. 2, at 15 (¶ jj).  Accordingly, the district court ordered Petitioner to pay restitution in the amount of $642,942.70 to Medicare and $99,585.37 to Missouri Medicaid.  I.G. Ex. 4, at 6.

The ALJ correctly noted that the total financial loss resulting from Petitioner’s false billing conspiracy is more than 14 times the $50,000 threshold required under the regulation and represents “a significant amount of fraud, particularly for programs designed to provide healthcare to some of this country’s most vulnerable populations.”  ALJ Decision at 9.  “[I]t is entirely reasonable to consider a program loss amount substantially larger than” the threshold amount to be “an ‘exceptional aggravating factor’ to be accorded significant weight.”  Laura Leyva, DAB No. 2704, at 9-10 (2016), aff’d, No. 8:16-CV-1986-JDW-AEP, 2017 WL 2868407 (M.D. Fla. Mar. 29, 2017), report and recommendation adopted, No. 8:16-CV-1986-T-27AEP, 2017 WL 2880125 (M.D. Fla. Apr. 24, 2017); see also Thaxter at 31-32 (affirming ALJ’s finding that program loss “ten times the threshold amount” is a “significant aggravating factor that compels a period of exclusion much longer than the five-year minimum”).

Petitioner, however, argues that he “personally received no benefit” from his criminal acts.  P. Br. at 5.  Petitioner offers no supporting evidence for that assertion.  In any event, personal enrichment is irrelevant to this aggravating factor, which does not require that the excluded individual “has to benefit from the program loss, only that the offense ‘caused’ or [was] ‘intended to cause’ the loss.”  Craig Richard Wilder, DAB No. 2416, at 9 (2011) (quoting 42 C.F.R. § 1001.102(b)(1)). 

Petitioner further argues that section 1001.102(b)(1) “requires individual causation” and the I.G. did not prove that Petitioner caused the financial loss he admitted to in his plea agreement.  P. Reply at 11 (arguing that the district court imposed joint and several liability against Petitioner and RB, without finding that any one defendant’s acts caused the total loss).  We wholly reject this argument.  Petitioner admitted in his plea agreement that he was “responsible” for the full amount of program loss to both Medicare and Missouri Medicaid (I.G. Ex. 2, at 15 (¶ jj)), and the district court convicted and sentenced him individually, without limiting the extent of his responsibility for the full amount of program loss (I.G. Ex. 4, at 1, 6).  Moreover, the restitution obligation imposed by the district court was joint and several only to the extent of any restitution amount imposed against RB, who had not been sentenced.  I.G. Ex. 4, at 6.  The record contains no

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evidence that the district court ordered RB to make any restitution payment and, therefore, Petitioner’s assertion that the restitution amount was joint and several is unsupported by the record. 

3. Petitioner’s criminal conduct, which continued for five years, further supports a 12-year exclusion.

The ALJ properly concluded that the I.G. established the aggravating factor in section 1001.102(b)(2) because Petitioner admitted to conspiring to submit false claims to Medicare and Medicaid for more than one year, from July 2018 to July 2023.  ALJ Decision at 6-7; see also I.G. Ex. 2, at 11 (¶ x), 15 (¶ jj).  The purpose of this aggravating factor “is to distinguish between petitioners whose lapse in integrity is short-lived from those who evidence a lack of such integrity over a longer period of time.”  Hamilton, DAB No. 3061, at 14 (quoting Donald Burstein, Ph.D., DAB No. 1865, at 8 (2003)).  Criminal conduct that continues for this length of time shows a high degree of untrustworthiness.  See, e.g., Serrano, DAB No. 2923, at 9 (stating that involvement in Medicaid fraud for more than four years is “a protracted period” that shows petitioner “is extremely untrustworthy”); Leyva at 10 (stating that participation in a criminal scheme for over two years “amply demonstrates more than a short-lived lapse in integrity”). 

Petitioner argues that he did not engage in “deliberate fraud” for five years and “did not design or personally execute the billing practices.”  See P. Br. at 5.  To the extent that Petitioner is attempting to deny or minimize his involvement in the billing conspiracy for which he was convicted, such an argument amounts to a prohibited collateral attack on his conviction.  See 42 C.F.R. § 1001.2007(d); see also Mohamad Ahmad Bazzi, DAB No. 2917, at 9 (2018) (stating that section 1001.2007(d) “prohibit[s] . . . any attempt to defend against the exclusion derived from the conviction by denying or minimizing the crime itself”).  Moreover, as the ALJ found, the aggravating factor does not require that Petitioner “design, implement, or personally execute the scheme for over one year, only that the acts be committed for over a period of one year or more.”  ALJ Decision at 7.  We agree that Petitioner’s “participation in a criminal scheme for over one year is indicative of deliberate participation” and “not merely a temporary lapse in judgment” and that this factor is significant and supports the 12-year exclusion.  Id.

4. Petitioner’s sentence, which included 35 months of incarceration, supports a 12-year exclusion.

Regarding the aggravating factor in section 1001.102(b)(5), we agree with the ALJ’s assessment that Petitioner’s sentence of 35 months of incarceration was a “substantial prison term [that] reflects the seriousness of Petitioner’s offense, justifying a longer period of exclusion.”  ALJ Decision at 7.  “The Board has recognized that an incarceration term may be viewed as a ‘reasonable proxy . . . for untrustworthiness in the context of deciding how much weight to give the aggravating factor for incarceration.’” 

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Hamilton at 17 (quoting Goldman, DAB No. 2635, at 5); see also Angelo D. Calabrese, M.D., DAB No. 2744, at 8 (2016) (stating that a sentence of 37 months was “a substantial amount of time considering that incarceration of any length” would establish the aggravating factor). 

Petitioner does not deny the 35-month sentence yet argues that a 12-year exclusion is excessive because the district court did not impose any “clinical restrictions.”  P. Br. at 5.  Petitioner presented no evidence that the district court was even asked to consider such a thing at sentencing.  Regardless, the lack of court-imposed clinical restrictions at sentencing is irrelevant to the ALJ’s evaluation of this factor.  “Section 1001.102(b)(5) authorizes the I.G. to lengthen the period of exclusion beyond the mandatory minimum five years when ‘[t]he sentence imposed by the court included incarceration.’”  Thaxter at 34; see also Jones at 8 (“Section 1001.102(b)(5) does not require proof of facts or circumstance other than that the sentence imposed . . . ‘included incarceration.’”).  This aggravating factor has been established and weighs in favor of the 12-year exclusion. 

5. The suspension of Petitioner’s medical license by the IDFPR further supports a 12-year exclusion.

The ALJ properly concluded that the I.G. established the aggravating factor at section 1001.102(b)(9) based on the indefinite suspension of Petitioner’s Illinois medical license due to his conspiracy conviction.  ALJ Decision at 7 (citing I.G. Ex. 5).  Section 1001.102(b)(9) applies if the individual “has been the subject of any other adverse action by any Federal, State or local government agency or board” and “the adverse action is based on the same set of circumstances that serves as the basis for the . . . exclusion.”  Because Petitioner’s license suspension was based on “the same set of circumstances” that was the basis for his exclusion (i.e., his conspiracy conviction), I.G. Ex. 5, the ALJ properly found this aggravating factor was established. 

We reject Petitioner’s argument that this factor merits little weight because Illinois law “requires automatic and indefinite suspension” for certain convictions, that the suspension was not the result of “independent professional judgment” about his clinical fitness, and that this factor “double-counts the conviction itself.”  P. Br. at 6; P. Reply at 12.  “The Board has made clear that section 1001.102(b)(9) requires only a finding of an ‘adverse action’ and that it be based on the ‘same set of circumstances.’”  Esha, DAB No. 3076, at 22 (citing cases).  The regulation requires nothing beyond what it says, and Petitioner provides no authority stating otherwise.10 

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In Kimberly Jones, we rejected the petitioner’s argument that the ALJ “assign[ed] too much weight” to this aggravating factor since petitioner’s conviction “guaranteed” consequent disciplinary action by the state pharmacy board.  DAB No. 3033, at 13.  We clarified that this factor “cannot be ignored or minimized simply because the ‘other adverse action’ . . . was a natural result” of the conviction.  Id.; see also Esha at 22 (rejecting contention that the petitioner’s Medi-Cal suspension “carries no weight beyond the mere fact of the [underlying] conviction . . . and in essence amounted to a double-counting of that conviction”).  The Board has explained that an additional adverse action by a different agency “could be considered as additional evidence of the seriousness of the underlying conduct,” since “adverse actions by professional regulatory bodies . . . may well be relevant to assessing how serious a risk a practitioner presents to patients or to payors.”  Narendra M. Patel, M.D., DAB No. 1736, at 29 (2000), aff’d, 319 F.3d 1317 (11th Cir. 2003), cert. denied, 539 U.S. 959 (2003).

Accordingly, based on the presence of four aggravating factors, all of which warrant significant weight, and the absence of any cognizable mitigating factor, we find that the ALJ’s decision to sustain the 12-year exclusion imposed by the I.G. is supported by substantial evidence and free of legal error.    

III. We reject Petitioner’s constitutional and other arguments.

Petitioner argues that the ALJ Decision violated his right to due process.  P. Reply at 10 (citing Mathews v. Eldridge, 424 U.S. 319 (1976)).  “Procedural due process imposes constraints on governmental decisions which deprive individuals of ‘liberty’ or ‘property’ interests within the meaning of the Due Process Clause.”  Mathews at 332; see also Thaxter at 37.  Petitioner asserts that a medical license “is a constitutionally protected property interest” and that the ALJ, in applying the aggravating factors, failed to give the “genuine individualized assessment” that due process requires.  P. Reply at 10.  Petitioner also argues that the I.G.’s briefs to the ALJ did not provide Petitioner, who appeared pro se, with adequate notice that his medical license suspension would be treated as an independent aggravating factor under section 1001.102(b)(9).  Id. at 13.  We reject these arguments. 

Even assuming that Petitioner had established a constitutionally protected property interest at stake in this proceeding (which he has not),11 he was afforded sufficient procedural protections consistent with due process.  There is no dispute that the I.G.’s exclusion notice notified Petitioner of his exclusion and apprised him of the factual and legal bases for it and how to challenge it.  I.G. Ex. 1.  The mandatory notice provided by the I.G. under section 1001.2002 has been held to comport with the notice requirements

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of procedural due process.  See Lasher v. Dep’t of Health & Human Servs., 369 F. Supp. 3d 243, 251 (D.D.C. 2019).  The I.G.’s pre-hearing submissions also informed Petitioner of the factual and legal bases for the exclusion and discussed the four aggravating factors.  See I.G. Br. to ALJ; I.G. Reply.  Petitioner then availed himself of a full administrative process before the ALJ, as detailed above, supra at 6.  While Petitioner argues that deficient notice prevented him from raising specific arguments about section 1001.102(b)(9), Petitioner raised nearly identical arguments before the ALJ regarding the “automatic” suspension of his medical license.  Compare P. Br. to ALJ at 7-8, 13 with P. Reply at 9, 12. 

Furthermore, Petitioner is wrong that the ALJ did not provide an “individualized assessment” of the aggravating factors in his case.  As explained, the ALJ evaluated the factual circumstances of Petitioner’s individual case and correctly weighed the specified aggravating factors on a qualitative basis.  We find no error in the ALJ’s determinations that a basis for the exclusion existed and the exclusion’s length was reasonable.  To the extent that Petitioner is challenging the statutes and regulations governing these proceedings, ALJs do not have the authority to invalidate or refuse to follow federal statutes or regulations.  42 C.F.R. § 1005.4(c)(1); see also Saeed A. Bajwa, M.D., DAB No. 2799, at 15 (2017) (“ALJs and the Board are bound by the regulations and may not declare them unconstitutional or decline to follow them on that basis.”), appeal dismissed, No. 3:17-cv-00792 (N.D.N.Y. Dec. 28, 2017).

Petitioner also raises numerous arguments for the first time in his reply brief, after the I.G. had completed its briefing.12  Petitioner attempts to excuse these belated arguments by asserting, for example, that he “could not have anticipated” the I.G.’s responsive argument concerning Loper Bright, that he is entitled to “procedural latitude” due to his pro se status, and that “no prejudice results” to the I.G.  P. Mot. for Leave to File Reply Br. at 2.  We disagree with those assertions.  We find that all of the points that Petitioner newly seeks to raise are arguments that could have been raised before the ALJ, and by law we cannot and do not consider such arguments raised for the first time on appeal.  See 42 C.F.R. § 1005.21(e) (“The [Board] will not consider . . . any issue in the briefs that could have been raised before the ALJ but was not.”); see also Charice D. Curtis, DAB No. 2430, at 6 (2011) (“We are barred by regulation from considering this argument because Petitioner did not raise it before the ALJ.”); Dike H. Ajiri, DAB No. 2821, at 6 (2017) (“The failure of Petitioner to introduce this issue for the ALJ’s consideration precludes him from now arguing the issue before the Board.”).

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Finally, after briefing was completed, Petitioner filed a “motion to correct the record,” emphasizing that he was convicted of conspiracy to make false statements related to health care matters under 18 U.S.C. §§ 371 and 1035 – not “health care fraud” under 18 U.S.C. § 1347.  Dkt. 6, at 1-2.  Petitioner asks that the Board “strike” any references to fraud in the ALJ Decision, “substitute the accurate description of the offense,” and then decide the appeal “on the corrected record.”  Id. at 3.  The Board has no authority to strike and rewrite portions of the ALJ Decision, nor is it necessary.13  Our decision is the final decision on this matter, and we have accurately described the nature and circumstances of Petitioner’s conviction.  See supra at 3-5.  While the ALJ may have used the word “fraud” or “fraudulent” in describing Petitioner’s billing conspiracy (which was done “knowingly” according to the plea agreement), the ALJ did not find that Petitioner was convicted of “health care fraud.”  In any event, no such conviction is necessary to sustain Petitioner’s exclusion because section 1128(a)(1) does not require a showing of “health care fraud” or any other type of fraud.  See Letatia Norris, DAB No. 3135, at 12-13 (2024) (rejecting contention that fraud is the determining factor as to whether a criminal offense is “related to” a covered program); see also Thaxter at 22 (“The Board has repeatedly held that the basis for an exclusion stems from the nature and circumstances of the underlying conviction, not the label or even the elements of the crime.”).  Accordingly, Petitioner’s “motion to correct the record” is denied.

Conclusion

We affirm the ALJ Decision.