Lee Peter Bee, D.O., DAB No. 3241 (2026)

FINAL DECISION ON REVIEW OF ADMINISTRATIVE LAW JUDGE DECISION

Lee Peter Bee, D.O. (Petitioner) appeals an Administrative Law Judge (ALJ) decision upholding a determination of the Inspector General (I.G.) to exclude Petitioner from participation in all federal health care programs for 12 years.  Lee Peter Bee, DO, DAB CR6896 (2026) (ALJ Decision).  The ALJ concluded that Petitioner was lawfully excluded under sections 1128(a)(1) and 1128(a)(3) of the Social Security Act (Act) based on his felony conviction for health care fraud, and that the length of the exclusion is not unreasonable based on four aggravating factors and no mitigating factor.  Petitioner argues that he established the mitigating factor at 42 C.F.R. § 1001.102(c)(3) based on his cooperation with federal officials.  We find no error in the ALJ’s assessment of the evidence and application of section 1001.102(c)(3).  We, therefore, affirm the ALJ Decision for the reasons explained below.

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 Medicaid.  Act § 1128(a)(1); see also id. § 1128(h) (defining “State health care program”); 42 C.F.R. § 1001.101(a).1  As relevant here, section 1128(a)(3) of the Act requires the Secretary to exclude an individual convicted of a felony “relating to fraud, theft, embezzlement, breach of fiduciary responsibility, or other financial misconduct” if the offense was “in connection with the delivery of a health care item or service.”  Act § 1128(a)(3); see also 42 C.F.R. § 1001.101(c)(1).2

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The Act provides that a mandatory exclusion under section 1128(a) “shall be not less than five years.”  Act § 1128(c)(3)(B).  The I.G. may extend an exclusion beyond the statutory minimum if any of the “aggravating factors” in 42 C.F.R. § 1001.102(b) are established.  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; a criminal sentence that included incarceration; and a prior criminal, civil, or administrative sanction record.  42 C.F.R. § 1001.102(b)(1), (2), (5), (6).

If any aggravating factor justifies an exclusion longer than the statutory minimum, then the mitigating factors specified in section 1001.102(c) may be considered as a basis to reduce the exclusion period to no less than five years.  42 C.F.R. § 1001.102(c).  The only mitigating factor at issue here is the following:

The individual’s or entity’s cooperation with Federal or State officials resulted in—

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

Id. § 1001.102(c)(3).

An excluded individual may request a hearing before an ALJ on two issues:  whether the basis for exclusion exists, and whether the length of exclusion is unreasonable.  Id. §§ 1001.2007(a)(1), 1005.2(a).  A party dissatisfied with the ALJ’s decision may appeal that decision to the Board.  Id. § 1005.21(a).  The Board may decline review, affirm, reverse, or remand any exclusion determined by the ALJ.  Id. § 1005.21(g).

Case Background

1. Petitioner’s Administrative Sanctions Record Prior to Exclusion

Petitioner is a Doctor of Osteopathic Medicine and operated a clinic in southern Illinois.  Stip. ¶ 1.3  He was a participating provider in Medicare, Illinois’ Medicaid program, and various private insurance programs, including Blue Cross Blue Shield (BCBS).  Id.

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On February 19, 2020, the State of Illinois, Department of Financial and Professional Regulation, Division of Professional Regulation, indefinitely suspended Petitioner’s license to practice medicine, retroactive to October 17, 2019.  Stip. ¶ 2; I.G. Ex. 7.  Effective February 19, 2020, the Illinois Department of Healthcare and Family Services terminated Petitioner from participation in Illinois’ Medicaid Program because he was not properly licensed or qualified to participate.  Stip. ¶ 4; I.G. Ex. 8, at 4.4

On February 8, 2022, Petitioner entered into a settlement agreement with the Missouri State Board of Registration for the Healing Arts, whereby his Missouri physician and surgeon’s license was placed on probation for a period of two years.  Stip. ¶ 5; I.G. Ex. 9.

On June 12, 2024, following the conviction discussed below, Petitioner entered into a consent agreement with the State Medical Board of Ohio, whereby Petitioner’s certificate to practice medicine in Ohio was indefinitely suspended.  Stip. ¶ 13; I.G. Ex. 10.

2. Petitioner’s Health Care Fraud Conviction and Exclusion

On July 25, 2023, Petitioner was charged by criminal information in the United States District Court for the Southern District of Illinois (district court) with two counts of health care fraud under 18 U.S.C. § 1347.  Stip. ¶ 6; I.G. Ex. 3.  Petitioner pled guilty to both counts as alleged in the criminal information.  Stip. ¶ 7; I.G. Exs. 2, 4.  Petitioner’s plea agreement was filed in the district court on July 25, 2023.  Stip. ¶ 8; I.G. Exs. 2, 4.

By way of plea agreement with stipulation of facts, Petitioner admitted that from January 1, 2015, through at least January 30, 2020, he devised and engaged in a scheme to defraud Medicare, Medicaid, and private insurance companies, including BCBS, by billing for services that were not provided as claimed.  Stip. ¶ 9; I.G. Ex. 2, at 2.  Specifically, Petitioner admitted that he submitted claims for prolonged physician services, “certifying that he had performed prolonged face-to-face office visit procedures when, in fact, he had not.”  I.G. Ex. 2, at 2.  In addition, Petitioner admitted to submitting claims for injections, “certifying that he had performed injections on certain days when, in fact, the beneficiaries were not present in his clinic on those days.”  Id.  Petitioner admitted that as a result of his false and fraudulent representations, he received payments from Medicare, Medicaid, and private insurance, including BCBS, to which he was not entitled.  I.G. Ex. 2, at 2-3.  Petitioner stipulated in his plea agreement that his offense resulted in financial losses of more than $150,000.  I.G. Ex. 4, at 4.   

On April 4, 2024, the district court accepted Petitioner’s guilty plea and entered judgment against him.  Stip. ¶ 10; I.G. Ex. 5.  The district court sentenced Petitioner to five months of imprisonment, followed by five months of home detention and two years of supervised release.  Stip. ¶ 11; I.G. Ex. 5, at 2, 4 (making home detention a special condition of

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supervised release).  The district court further ordered Petitioner to pay restitution of $195,170.14, including $138,932.67 to the Centers for Medicare and Medicaid Services (CMS) and $56,237.47 to BCBS.  Stip. ¶ 12; I.G. Ex. 5, at 6.

On September 9, 2024, in response to an email from the I.G., an Assistant U.S. Attorney (AUSA) with the United States Attorney’s Office (USAO) in the Southern District of Illinois stated that Petitioner had participated in “multiple proffer sessions” with federal officials where he provided information “regarding his former employer relating to allegations of fraud,” and that “his cooperation was extensive and he cooperated even after the entry of his plea.”  I.G. Ex. 11.  The AUSA further stated, however, that “[Petitioner’s] cooperation has not yet resulted in the prosecution of any additional entities or individuals.”  Stip. ¶ 14; I.G. Ex. 11.

By letter dated November 29, 2024, the I.G. notified Petitioner that he was being excluded from participation in Medicare, Medicaid, and all federal health care programs for 12 years under sections 1128(a)(1) and 1128(a)(3) of the Act based on his felony conviction for health care fraud.  Stip. ¶ 15; I.G. Ex. 1.  The I.G. enhanced Petitioner’s period of exclusion beyond the five-year mandatory minimum, citing the following four aggravating factors:  (1) the acts resulting in the conviction caused a financial loss to a government agency or program or to one or more other entities of $50,000 or more; (2) the acts that resulted in the conviction were committed over a period of one year or more; (3) the sentence imposed by the court included incarceration; and (4) Petitioner had prior administrative sanctions in Illinois, Missouri, and Ohio.  Stip. ¶ 17; I.G. Exs. 1, 6; see also 42 C.F.R. § 1001.102(b)(1), (2), (5), (6).5  The I.G. cited no mitigating factors.

3. ALJ Proceedings and Decision

On January 28, 2025, Petitioner requested an ALJ hearing.  Stip. ¶ 18.  In his request for hearing (RFH), Petitioner did not dispute the basis for his exclusion but argued that his cooperation with federal officials should serve to reduce the length of his exclusion to no more than five years.  RFH at 3.

The I.G. moved for summary judgment.  The ALJ denied summary judgment and set the case for hearing.  ALJ Decision at 2.  The parties stipulated that the only issue for hearing is whether Petitioner “qualifies for” the mitigating factor at 42 C.F.R. § 1001.102(c)(3), which may serve to reduce Petitioner’s exclusion.  CRD Dkt. 20 (Statement of Issues).  The I.G. filed its pre-hearing exchange, including twelve exhibits (I.G. Exs. 1-12).  Petitioner filed his pre-hearing exchange, including five exhibits (P. Exs. 1-5).

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The parties each filed pre-hearing briefs and stipulated that Petitioner had participated in multiple proffer sessions with federal officials through the USAO in the Southern District of Illinois where he provided information to investigators.  Stip. ¶ 19.  The pre-hearing evidence further demonstrated:

• On April 11, 2025, Petitioner’s counsel received an email from the AUSA in the Southern District of Illinois stating, “I understand the need for the ALJ to consider [Petitioner’s] cooperation in our case.”  Stip. ¶ 20; P. Ex. 2.  The AUSA recommended that Petitioner’s counsel file a motion to unseal the sentencing memoranda filed in the district court “for the limited purpose of providing the information under seal to the ALJ.”  P. Ex. 2.  The AUSA stated that she had no objection to unsealing the record for that purpose.  Id.
• On June 16, 2025, the I.G. received a follow-up email from the same AUSA that stated:  “I am not aware of any changes in [Petitioner’s] cooperation since my September 2024 report to OIG EB.  I am not aware of any additional cooperation by [Petitioner] and do not believe that his cooperation has resulted in any of the three outcomes [listed in the regulation at 42 C.F.R. § 1001.102(c)(3)] to date.”  Stip. ¶ 21; I.G. Ex. 12.

A hearing was held on January 7, 2026, at which Petitioner provided direct testimony and was cross-examined.  Hearing Transcript (Tr.).  No other witness testified.  After the hearing, the I.G. filed four additional exhibits (I.G. Exs. 13 - 16), which Petitioner did not oppose.  See infra at pp. 13-14.  Petitioner filed one additional exhibit (P. Ex. 6), which the I.G. opposed.  Both parties filed post-hearing briefs and reply briefs.

On May 15, 2026, the ALJ issued a decision, admitting all the exhibits proffered by the parties.  ALJ Decision at 4-5.  The ALJ determined that Petitioner’s exclusion was required under sections 1128(a)(1) and 1128(a)(3) of the Act based on his felony health care fraud conviction.  Id. at 13-15.  The ALJ further determined that the four aggravating factors (42 C.F.R. § 1001.102(b)(1), (2), (5), (6)) cited by the I.G. support extending Petitioner’s exclusion period, and that Petitioner failed to establish any mitigating factor, including the mitigating factor at 42 C.F.R. § 1001.102(c)(3).  Id. at 15-19.  Finally, the ALJ concluded that Petitioner’s 12-year exclusion falls within a reasonable range based on the application of the four aggravating factors and no mitigating factor.  Id. at 20-21.  This appeal followed.

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

Before the Board, Petitioner “does not dispute the statutory basis for exclusion or the existence of the four cited aggravating factors.”  Notice of Appeal & Brief (NA) at 4.  Accordingly, we summarily affirm the ALJ’s conclusion that Petitioner’s exclusion (of at least five years) was mandated by sections 1128(a)(1) and 1128(a)(3) of the Act based on Petitioner’s felony health care fraud conviction.  Diane Marie Krupka, DAB No. 3020, at 5 (2020) (summarily affirming ALJ’s unchallenged conclusion that the I.G. had a basis to exclude health care provider).  We also summarily affirm the ALJ’s unchallenged conclusion that the I.G. established the following four aggravating factors:  section 1001.102(b)(1) (financial loss of $50,000 or more), 1001.102(b)(2) (criminal conduct committed for one year or more), 1001.102(b)(5) (incarceration), and 1001.102(b)(6) (prior administrative sanction record).

Petitioner, however, argues “that he established the sole disputed mitigating factor under 42 C.F.R. § 1001.102(c)(3)” and, therefore, the length of his exclusion should be reduced to a period of no less than five years.  NA at 2, 4, 9.  Petitioner contends that the ALJ erred because:  (i) the ALJ’s interpretation of the mitigating factor was “unduly restrictive and narrowly applied” (id. at 4-6); (ii) Petitioner “provided sufficient evidence of additional cases investigated” (id. at 6-7); (iii) the ALJ failed to “fairly consider the government’s control over mitigation information including sealed information” (id. at 7-8); and (iv) “[p]ost-hearing email exchanges are additional proof of [Petitioner’s] cooperation with the government” (id. 8-9).  We reject each of those arguments and affirm the ALJ’s conclusion that Petitioner failed to establish any mitigating factor and the length of the exclusion is not unreasonable.

1. The ALJ did not err in concluding that Petitioner did not satisfy his burden of establishing the mitigating factor at 42 C.F.R. § 1001.102(c)(3).

In this exclusion proceeding, Petitioner had the burden of proof and burden of persuasion on any mitigating factor.  See 42 C.F.R. § 1005.15(c); CRD Dkt. 4 (Prehearing Order) ¶ 4 (“Petitioner bears the burden of going forward and the burden of persuasion on any affirmative defenses or mitigating factors.”).  The standard of proof is a preponderance of the evidence.  42 C.F.R. § 1001.2007(c); Prehearing Order ¶ 4.  Thus, to establish the mitigating factor under section 1001.102(c)(3), Petitioner had the burden of proving that he cooperated with federal or state officials and that his cooperation resulted in:  (i) others being convicted or excluded, (ii) additional cases being investigated or reports being issued identifying program vulnerabilities or weaknesses, or (iii) the imposition of a civil money penalty or assessment.  42 C.F.R. § 1001.102(c)(3).6 

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The ALJ determined that while there is no dispute that Petitioner cooperated with federal officials, Petitioner failed to prove, by a preponderance of the evidence, that his cooperation resulted in any outcome specified in section 1001.102(c)(3).  ALJ Decision at 11-12, 18-19.

1. The ALJ’s application of 42 C.F.R. § 1001.102(c)(3) comported with the plain language of the regulation and Board precedent.

Petitioner argues that the ALJ’s interpretation of the mitigating factor in 42 C.F.R. § 1001.102(c)(3) was “unduly restrictive and narrowly applied.”  NA at 4.  Without pointing to any specific passage in the ALJ Decision, Petitioner asserts that the ALJ required Petitioner to provide “direct testimony establishing a publicly disclosed enforcement outcome” and imposed “a disclosure requirement that the government’s own confidentiality interests prevent.”  Id. at 5.  The ALJ imposed no such requirement.  Consistent with the regulation and Board precedent, the ALJ required only that Petitioner prove by a preponderance of the evidence that his cooperation resulted in one of the outcomes specified in the regulation.  ALJ Decision at 19.

Petitioner’s contention that he provided sufficient evidence to establish the cooperation mitigating factor under section 1001.102(c)(3) is not supported by the record or Board precedent.  “Mere proof of some level of cooperation, with unspecified results, is insufficient, for if the regulation had intended that the act of cooperating with a state or federal official, by itself, would suffice to establish the mitigating factor, the regulation would merely have required cooperation and nothing more.”  Waleed Khan, DAB No. 3083, at 10 (2023) (quoting Stacey R. Gale, DAB No. 1941, at 10 (2004)) (internal quotation marks and brackets omitted).  “[T]he regulation is designed to authorize mitigation for significant or valuable cooperation that yielded positive results for the state or federal government,” such as a “new case actually being opened for investigation.”  Gale at 11.  Thus, for more than two decades, the Board has held that an excluded individual’s cooperation with government officials must have “resulted in” at least one of the specified regulatory outcomes for this mitigating factor to apply.  See Lakshmi Bethi, DAB No. 3223, at 9 (2026) (“Even where the record shows some cooperation with authorities, that is not sufficient . . . when (as here) Petitioner provided no evidence that the cooperation resulted in any of the outcomes identified in the [regulation].” (internal quotation marks omitted)); Farzana Begum, M.D., DAB No. 2726, at 13-14 (2016) (affirming ALJ’s conclusion that physician did not establish the mitigating factor at section 1001.102(c)(3) because she failed to show that her cooperation with federal officials resulted in another’s conviction or that the government opened a new case or investigation because of her cooperation), aff’d, No. 16-cv-9624, 2017 WL 5624388 (N.D. Ill. Nov. 21, 2017); Gale, DAB No. 1941, at 10 (holding that the ALJ erred in concluding that the mitigating factor under section 1001.102(c)(3)(ii) was established where the excluded pharmacist failed to show that her cooperation with state officials resulted in a new case being investigated).

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Petitioner argues that the evidence shows he “participated in multiple proffer sessions” with federal officials; that the government itself described his cooperation as “extensive,” “timely,” “truthful,” and “complete”; and that the AUSA filed a motion recommending a reduced sentence in his criminal case based on that cooperation.  NA at 5.  According to Petitioner, those facts “strongly corroborate that the cooperation produced meaningful law-enforcement consequences.”  Id.  But unspecified “law-enforcement consequences” does not satisfy the regulation.  Even assuming the truth of Petitioner’s assertions, they are plainly insufficient to establish any of the specified outcomes under section 1001.102(c)(3).  See Devon Rambert-Hairston, DAB No. 3069, at 11-12 (2022) (holding that a government motion that resulted in a reduced sentence because of “substantial assistance” to authorities did not establish that the petitioner’s cooperation resulted in the conviction or exclusion of others, or caused officials to open new cases or investigations); Begum, DAB No. 2726, at 13-14 (holding that excluded physician failed to “point to anything specific in the evidence” to show that the government “initiated or opened a new investigation or case as a result of her cooperation” or that “others were convicted or excluded as a result of her cooperation”); Christopher Switlyk, DAB No. 2600, at 6 (2014) (holding that lists the petitioner created that purportedly detail cases in which he will potentially testify, information he has regarding others’ illegal activities, and his cooperative efforts to date do not establish that his cooperation resulted in any of the outcomes required by the regulation).

The evidence provided by Petitioner, consisting of six documentary exhibits and his own hearing testimony, does not demonstrate that his cooperation resulted in any of the required regulatory outcomes.  Petitioner’s licensing information from the Illinois Department of Financial and Professional Regulation (P. Ex. 1) memorializes the suspension of his medical license but does not address the results of his cooperation with federal officials.  Similarly, neither Petitioner’s inmate location record (P. Ex. 3) nor his motion to terminate supervised release early (P. Ex. 5) documents any outcome related to his cooperation with federal officials.  Likewise, the court order resetting the sentencing hearing in the case of J.D.L. (P. Ex. 6) does not show that Petitioner’s cooperation resulted in the conviction of this individual.  See Begum, DAB No. 2726, at 13 (noting that petitioner did not demonstrate to the ALJ that the information she provided to the government (as opposed to information obtained from other sources) resulted in another individual’s conviction).

Still further, the email from the AUSA in the Southern District of Illinois dated April 11, 2025, acknowledges that Petitioner cooperated with federal officials, but does not show that Petitioner’s cooperation resulted in any of the outcomes specified in the regulation.  P. Ex. 2.  Petitioner’s own affidavit contains only vague and conclusory assertions about his cooperation, including that “as a result of [his] cooperation . . . certain health care providers and entities have been disciplined by the government.”  P. Ex. 4.  The assertion

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that other unspecified individuals or entities were “disciplined” does not, without more, establish any of the outcomes required by section 1001.102(c)(3). 

Moreover, as the ALJ found, Petitioner’s hearing testimony failed to prove that his cooperation with law enforcement resulted in one of the specified outcomes in the regulation.  After carefully considering Petitioner’s testimony and the entirety of the record evidence, the ALJ made the following factual findings:

I find credible Petitioner’s assertions that he cooperated with investigators and prosecutors.  But I do not find that I can draw any inference that his cooperation rose to the level of the cooperation necessary to find a mitigating factor authorized by 42 C.F.R. § 1001.102(c).  Petitioner’s testimony that his cooperation led to the opening of investigations against ChenMed, Humana, and Optum; that CMS changed policy and procedures on account of information he provided; that investigators told him he was the first/only source for information; and any other assertions by Petitioner as to the impact of cooperation cannot be accepted as credible as there is inadequate evidence of his basis for knowledge of the impact of his cooperation.  Petitioner could not recall at the hearing who he spoke to during proffer sessions or he asserted he could not provide details due to ongoing investigations.  Petitioner testified he was never provided an investigative report.  Petitioner testified that he relied upon his criminal defense attorney to handle his case.  He did not know if his criminal defense attorney was provided investigative reports.  He asserted that he provided extensive information that was described in the supplements to his plea agreement, but he did not assert that any of the information had the specific results required for a mitigating factor under 42 C.F.R. § 1001.102(c)(3). . . .  Under 42 C.F.R. § 1005.9(a) a party may move for the issuance of a subpoena to compel appearance and testimony of one with relevant information necessary for the party’s presentation of its case.  Petitioner’s testimony indicates that there were federal investigators/ prosecutors and his own criminal defense attorneys who may have had relevant information to support his claims about the results of his cooperation.  But Petitioner requested no subpoenas.  Further, the email[s] that the IG presented (IG Exs. 11-16) are acceptable as rebuttal evidence and sufficient to rebut Petitioner’s general assertions that his cooperation had results required for me to find that there was a mitigating factor under 42 C.F.R. § 1001.102(c)(3).  I find that Petitioner’s testimony is insufficiently weighty and credible for me to find facts or infer that Petitioner’s cooperation, more likely than not, had any of the results required for the existence of a mitigating factor recognized by 42 C.F.R. § 1001.102(c)(3).

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ALJ Decision at 12 (emphasis added).

When, as here, the Board evaluates whether an ALJ’s factual findings are supported by substantial evidence “its role is not to re-weigh the evidence or to substitute its evaluation of the evidence for that of the ALJ.”  Ishtiaq A. Malik, M.D., DAB No. 2962, at 7 (2019) (quoting Gary Grossman, DAB No. 2267, at 7 (2009)).  “We generally accord considerable deference to an ALJ’s judgment when it depends on weighing the evidence presented and assessing the credibility of witnesses, since the ALJ has the best opportunity to observe the witnesses.”  Barry D. Garfinkel, M.D., DAB No. 1572, at 6 (1996).  “[A]bsent a compelling reason, the Board defers to an ALJ’s weighing of the evidence . . . to determine whether Petitioner has proven the mitigating factors by a preponderance of the evidence.”  Begum, DAB No. 2726, at 8; see also Nancy L. Clark, DAB No. 2989, at 9 (2020) (“It is well settled that the Board defers to ALJ findings on credibility and the weight of testimony absent a compelling reason for rejecting them.”).

We find no compelling reason to reject the ALJ’s weighing of the record evidence, including the ALJ’s findings regarding Petitioner’s credibility and the weight of his testimony.  Thus, we find no error in the ALJ’s determination that Petitioner failed to prove the mitigating factor of cooperation by a preponderance of the evidence.

We further reject Petitioner’s contention that section 1001.102(c)(3) purportedly contains an “ambiguity” that “must be resolved in light of the regulation’s remedial purpose—which is to reward, not penalize, substantial government cooperation.”  NA at 7.  Without identifying what word or phrase is ambiguous or subject to more than one reasonable interpretation, Petitioner asserts that “the ALJ’s reasoning contradicts the structure and purpose of” the regulation and the ALJ “acknowledged” that its drafters intended an exclusion period to be “within a reasonable range based on demonstrated criteria” but “provided no explanation” of what those criteria were.  NA at 6-7 (referencing ALJ Decision at 20).  The passage of the ALJ Decision that Petitioner references did not concern section 1001.102(c)(3) but instead concerned the scope of ALJ review under 42 C.F.R. § 1001.2007(a).  ALJ Decision at 20.7  In any event, the I.G. has articulated the “criteria” for reducing an exclusion period based on cooperation by adopting 42 C.F.R. § 1001.102(c)(3).  Section 1001.102(c)(3) and its regulatory history is not silent or ambiguous about how that provision is satisfied.  See supra at 7-8; see also Gale at 11-12 (recounting the rule-making history of section 1001.102(c)(3) and reiterating that “the regulation is designed to authorize mitigation for significant or valuable cooperation that yielded positive results for the state or federal government” with those results specified in the regulation).  Petitioner has established no ambiguity in the regulation and no legal error by the ALJ in interpreting or applying the regulation. 

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2. The record does not show that government officials opened a new case or investigation as a result of Petitioner’s cooperation.

Focusing on 42 C.F.R. § 1001.102(c)(3)(ii), Petitioner argues that he “provided sufficient evidence of additional cases investigated” in that the record reflects “multiple interviews across jurisdictions and department components, information concerning other actors and entities, and ongoing investigative activity tied to those proffers.”  NA at 6 (citing P. Ex. 2; I.G. Exs. 13-16).  None of the exhibits cited by Petitioner show that government officials initiated or opened any new case or investigation based on information he provided.  In fact, apart from Petitioner’s hearing testimony, which the ALJ found not credible and “insufficiently weighty,” the record contains no evidence that any new case or investigation was opened as a result of Petitioner’s cooperation.

The ALJ’s conclusion that Petitioner did not establish the required regulatory outcome under section 1001.102(c)(3)(ii) was not merely because Petitioner “could not name every official involved.”  NA at 6.  Rather, Petitioner failed to show that any law enforcement official opened a new case for investigation based on information that Petitioner provided.  ALJ Decision at 19 (“[T]he IG expected that the mitigating factor would be found only where law enforcement officials open a new case investigation or issue the report specified.” (citing 63 Fed. Reg. 46,676, 46,681 (Sep. 2, 1998))).  As the Board previously explained, cooperation in an existing investigation is not sufficient:

[Section 1001.102(c)(3)(ii)] requires that the cooperation result in one of two specified forms of validation:  additional cases being investigated or reports being issued. . . .  [It] requires an individual to demonstrate that a law enforcement official actually exercised his or her discretion and began an investigation or issued a report as a result of the individual’s cooperation. . . .  [T]he regulation is designed to authorize mitigation for significant or valuable cooperation that yielded positive results for the state or federal government in the form of a new case actually being opened for investigation or a report actually being issued.

Gale at 10-11.

The ALJ did not err in concluding that Petitioner failed to establish the mitigating factor under section 1001.102(c)(3)(ii) because Petitioner made no credible showing that information he provided to government officials resulted in the opening of a new case or investigation.  See Begum, DAB No. 2726, at 14 (“Petitioner does not point to anything specific in the evidence that is contrary to the ALJ’s fact-finding, or establishes that the government initiated or opened a new investigation or case as a result of her cooperation.”); Gale at 13-17 (holding that petitioner failed to show that her cooperation with government officials led to the opening of any new case for investigation).

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3. The ALJ did not “misallocate” the burden of proof or require the disclosure of non-public or sealed information.

Petitioner contends that the ALJ “misallocated the practical evidentiary burden in light of the sealed and ongoing nature of the government investigations.”  NA at 4; see also id. at 7 (arguing that the “ALJ did not fairly consider the government’s control over mitigation information,” including unspecified “sealed information solely in the government’s control”).  According to Petitioner:  “Where the government itself acknowledged extensive, truthful, and complete cooperation; where part of the relevant record was sealed; and where ongoing investigations limited what could be disclosed publicly, the absence of subpoenaed testimony should not have been treated as affirmative proof that the mitigation standard was unmet.”  Id. at 7-8.  Petitioner asserts that the Board should either infer that he established the mitigating factor or remand the case to the ALJ “for more reliable development of the issue.”  Id. at 8.

We reject the argument that the ALJ “misallocated” the burden of proof or required the disclosure of non-public or sealed information.  Nor is there any legal basis for the Board to draw inferences contrary to the ALJ’s factual findings or to remand the case for further “development.”  “[I]t is Petitioner’s responsibility to locate and present evidence to substantiate the existence of any alleged mitigating factor.”  Gale, DAB No. 1941, at 9 (explaining that it was “entirely Petitioner’s burden” to show that her cooperation resulted in at least one of the outcomes required by regulation).  There are compelling reasons to place that burden on the individual being excluded.  Gale at 18; accord Cesar M. Cubano-Martinez, M.D., DAB No. 3142, at 9 (2024).  The excluded individual has “personal knowledge” of the full extent of cooperation, “including the substance of the information and evidence provided, the names and positions of officials who received the information, the dates and times of the contacts, and the content of any agreements of cooperation with prosecutors.”  Gale at 18.  “The individual being excluded need only follow up with the officials to find out whether that information or evidence led to the opening of a new case for investigation.”  Id.  Such an inquiry does not require disclosing non-public or sealed information or revealing the target of any new investigation.  Petitioner also could have inquired about whether information he provided resulted in any convictions or exclusions, which ordinarily are a matter of public record.  Still further, the AUSA in the Southern District of Illinois recommended that Petitioner file a motion to unseal certain documents for use in the ALJ proceedings and noted that she would have no objection to unsealing the record for that purpose.  P. Ex. 2.  Petitioner apparently chose not to pursue such an unopposed motion.

Still further, like the excluded individual in Gale, Petitioner could have requested that the ALJ issue subpoenas to investigators or prosecutors to ensure that information relevant to establishing one of the required outcomes would be presented to the ALJ; but, Petitioner chose not to do so.  See Gale at 18-19 (citing 42 C.F.R. § 1005.9).  Before the ALJ, Petitioner identified only himself as a potential witness.  CRD Dkt. 16 (pre-hearing

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witness list), 27b (updated witness list).  Petitioner’s failure to request the testimony of government officials by subpoena or to otherwise obtain relevant information to establish a required outcome under section 1001.102(c)(3) does not warrant a remand for further development of the record.  See Baldwin Ihenacho, DAB No. 2667, at 7 (2015) (declining to remand case to the ALJ to obtain testimony of former defense counsel regarding the cooperation mitigating factor where petitioner failed to request a subpoena or even identify the witness before the ALJ). 

Accordingly, we reject any suggestion that the ALJ misapplied section 1001.102(c)(3) or imposed an insurmountable burden on Petitioner to prove this mitigating factor.  As the I.G. accurately points out, and the Board has held, other excluded individuals have met their burden of establishing this factor, including that their cooperation produced one of the regulation-specific results.  See I.G. Br. at 8 (citing Craig Richard Wilder, DAB No. 2416, at 4, 11, 13 (2011) and Bryant Pryor, DAB No. 3165, at 5, 9 (2024)).  Petitioner had a full and fair opportunity to do so but did not meet his burden.

4. Post-hearing email exchanges with federal officials did not support Petitioner’s assertion that his cooperation led to any of the outcomes required by 42 C.F.R. § 1001.102(c)(3).

After the ALJ hearing in January 2026, the I.G. followed up with federal officials by email regarding the results of Petitioner’s cooperation.  I.G. Exs. 13-16.  Petitioner did not object to the admission of these emails and “does not argue now that they were inadmissible.”  NA at 8.  Instead, Petitioner contends that the ALJ gave “dispositive weight” to the emails, which “were unsworn, hearsay, prepared in response to counsel’s questions after the hearing, and never tested through cross-examination.”  Id.  Petitioner argues that the emails “reflected narrow answers to counsel-crafted questions rather than a full account of the investigative consequences of [Petitioner’s] cooperation.”  Id. at 8-9.  Further, according to Petitioner, “properly read, the emails are consistent with, and in several respects corroborative of, [his] cooperation across multiple governmental agencies and individuals.”  Id. at 9.

While the emails show that Petitioner met with federal officials four times between March 2023 and March 2024, none of the emails shows that Petitioner’s cooperation resulted in any of the outcomes required by 42 C.F.R. § 1001.102(c)(3)(i) and (ii).  On March 3, 2026, the AUSA in the Southern District of Illinois provided the I.G. with the dates of Petitioner’s meetings with her office and three other federal offices.  I.G. Ex. 13.  The AUSA explained that her office filed a motion for a reduced sentence based on Petitioner’s cooperation “despite the fact that [Petitioner’s] cooperation had not resulted in the prosecution of any additional entities or individuals.”  Id.  She further confirmed that Petitioner’s cooperation with her office did not result in the opening of “any new investigation.”  Id.  Because the AUSA was not “not aware of the status” of investigations at the other offices identified in her email, the I.G. sought status updates

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directly from those federal offices.  See I.G. Exs. 14-16.  The I.G. received responses from each of the other three offices, all of which confirmed that Petitioner’s cooperation did not result in others being convicted or excluded, or in new cases being investigated or reports being issued.  See I.G. Ex. 14 (DOJ Civil Frauds Division); I.G. Ex. 15 (USAO E.D. Missouri); I.G. Ex. 16 (DOJ Criminal Division).

Petitioner’s assertion that the ALJ gave “dispositive weight” to these emails also has no merit.  The ALJ fully explained his factual findings based on the whole record, including Petitioner’s lack of credibility, and did not treat the post-hearing emails as “dispositive” of any issue.  See ALJ Decision at 12, 19.  Again, the Board’s “role is not to re-weigh the evidence or to substitute its evaluation of the evidence for that of the ALJ.”  Malik at 7.  We find no compelling reason to reject the ALJ’s weighing of the evidence, including the ALJ’s assessment of emails from federal officials (I.G. Exs. 14-16), none of which supports finding that Petitioner’s cooperation resulted in one of the outcomes required by regulation.  ALJ Decision at 19 (finding “no testimony or other evidence from prosecutors, investigators, Petitioner’s criminal defense counsel, or the district court that support an inference that . . . Petitioner’s cooperation caused one of the results required by 42 C.F.R. § 1001.102(c)(3)(i) and (ii)”).

Petitioner also has not established any error by the ALJ in admitting and considering documents that were “hearsay” and “never tested through cross-examination.”  NA at 8.  The ALJ expressly and appropriately considered those concerns in weighing this evidence.  ALJ Decision at 5.  It is well-settled that hearsay can be admissible and probative in administrative proceedings when, as here, sufficient indicia of reliability are present.  Dr. Timothy Baxter, DAB No. 3074, at 11 (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).  Petitioner did not object to the emails or seek to cross-examine any of the authors, so any objection to the lack of cross-examination concerning these documents is not preserved for review.  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.”).

2. A 12-year exclusion is not unreasonable given the established aggravating factors and the absence of any mitigating factor.

Petitioner’s challenge to the 12-year exclusion rests entirely on his contention (which we reject) that the mitigating factor under section 1001.102(c)(3) should reduce the length of his exclusion.  NA at 2, 9.  Notably, Petitioner does not argue that the 12-year exclusion is unreasonable based on the established aggravating factors.  We agree “that a period of exclusion of 12 years is within a reasonable range and not unreasonable considering the existence of four aggravating factors and no mitigating factor.”  ALJ Decision at 20-21.

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]

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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).  “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, DAB No. 3033, at 7 (2021) (internal quotation marks omitted).  The ALJ’s role is “to review the record before him to determine what the evidence establishes as to the ‘demonstrated criteria,’ i.e., the aggravating and mitigating factors.”  Edwin L. Fuentes, DAB No. 2988, at 9 (2020), aff’d, No. 4:20-cv-00026, 2021 WL 4341115 (W.D. Va. Sept. 23, 2021).

Here, all four established aggravating factors deserve significant weight based on the relevant circumstances.  There is no dispute the acts resulting in Petitioner’s conviction caused financial losses greater than $50,000.  42 C.F.R. § 1001.102(b)(1).  Petitioner was ordered to pay $195,170.14 in restitution, including $138,932.67 to CMS and $56,237.14 to BCBS.  ALJ Decision at 16 (citing Stip. ¶ 12, I.G. Ex. 5, at 6).  Restitution has long been considered a reasonable measure of program loss.  See Fuentes at 12.  The amount of program loss that Petitioner caused supports a significant increase in the exclusion period.  See Jeremy Robinson, DAB No. 1905, at 12 (2004) (upholding a 15-year exclusion in case involving a $205,000 financial loss and two other aggravating factors); Robert Seung-Bok Lee, DAB No. 2614, at 6 (2015) (upholding a 13-year exclusion in a case involving a $150,000 financial loss and two other aggravating factors).

The second aggravating factor – criminal conduct committed over a period of one year or more – also deserves significant weight.  42 C.F.R. § 1001.102(b)(2).  Petitioner’s criminal conduct continued for at least five years.  I.G. Ex. 2, at 2.  Participation in a multi-year criminal scheme demonstrates an excluded individual’s “ongoing lack of integrity” and “supports a substantial increase in the five-year minimum exclusion period.”  Vinod Chandrashekhar Patwardhan, M.D., DAB No. 2454, at 7 (2012) (holding physician’s participation in criminal scheme for three years combined with large financial loss amply supported at least a 12-year exclusion).  Significant weight may reasonably be assigned to criminal conduct that continued for even slightly longer than the one-year threshold, and “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, in part, on criminal conduct committed over approximately 14 months).  The five-year duration of Petitioner’s fraudulent scheme further supports a substantial lengthening of the exclusion period.

The third aggravating factor, Petitioner’s 10-month term of incarceration, which included both prison and home detention, also supports lengthening the mandatory minimum exclusion period.  42 C.F.R. § 1001.102(b)(5); 42 C.F.R. § 1001.2 (defining incarceration

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to include imprisonment and home detention).8  Even a period of incarceration less than 10 months is significant and is evidence not only of the individual’s untrustworthiness but also of the seriousness of their criminal conduct.  See 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); see also Erik X. Alonso, DAB No. 3186, at 11 (2023) (“[A]ny incarceration period, however short, justifies increasing an exclusion and even eight months of incarceration is a relatively substantial period.”); Patwardhan at 7 (holding that three aggravating factors, including nine months of home detention, are “more than sufficient” to support 12-year exclusion); Jason Hollady, M.D., DAB No. 1855, at 9 (2002) (holding that a prison sentence of as little as nine months is “relatively substantial” for exclusion purposes).

The fourth aggravating factor, Petitioner’s prior administrative sanction record, also supports lengthening the mandatory minimum exclusion period.  See 42 C.F.R. § 1001.102(b)(6).  Before his exclusion, Petitioner had an extensive history of administrative sanctions relating to his medical licensing.  Petitioner was subject to administrative sanctions in Illinois in 2020, specifically the indefinite suspension of his medical license and termination of his eligibility to participate in Illinois’ Medicaid program.  Stip. ¶¶ 2, 4; I.G. Exs. 7, 8; P. Ex. 1, at 3.  In 2022, Petitioner’s Missouri medical license was placed on probation for two years.  Stip. ¶ 5; I.G. Ex. 9.  In June 2024, Petitioner’s certificate to practice osteopathic medicine and surgery in Ohio was indefinitely suspended.  Stip. ¶ 13; I.G. Ex. 10.

All four aggravating factors taken together are more than sufficient to support the 12-year exclusion imposed here.  See Robinson, DAB No. 1905, at 7 (sustaining a 15-year exclusion based on three aggravating factors:  financial loss of $205,000; criminal acts over a period of approximately three years; and a one year and one day sentence of incarceration); see also Gale, DAB No. 1941 (sustaining a 15-year exclusion based on three aggravating factors:  364 days of incarceration; financial loss to the government of $273,188; and acts resulting in the pharmacist’s conviction that occurred over a period of 13 months).  Because each of the four aggravating factors deserves substantial weight and each supports lengthening the statutory minimum exclusion period, we conclude that the 12-year exclusion imposed by the I.G. falls within a reasonable range.

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Conclusion

We affirm the ALJ Decision.