George P. Roussis, DAB CR5242 (2019)

DECISION

The Inspector General (IG) of the United States Department of Health and Human Services excluded George P. Roussis (Petitioner) for 13 years from participation in Medicare, Medicaid, and all federal health care programs pursuant to section 1128(a)(1) and (a)(3) of the Social Security Act (Act).

Petitioner does not dispute the basis of the exclusion but disputes its length.  As explained below, however, the IG has proven aggravating factors that warranted a lengthier exclusion.  Petitioner has failed to demonstrate any mitigating factors I can properly consider under the applicable regulations.  Therefore, I conclude that the 13-year exclusion period imposed in this matter is not unreasonable and affirm the IG’s determination.

I. Case Background and Procedural History

On March 30, 2018, the IG notified Petitioner of his exclusion from participation in Medicare, Medicaid, and all federal health care programs under 42 U.S.C.

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§§ 1320a‑7(a)(1) and (a)(3) for a period of 13 years.  IG Ex. 1.1  The IG based the exclusion on Petitioner’s conviction of a criminal offense in the United States District Court for the District of New Jersey (District Court) related to the delivery of an item or service under Medicare or a state health care program, including the performance of management or administrative services relating to the delivery of items or services under any such program.  IG Ex. 1 at 1.

The IG also based the exclusion on Petitioner’s felony conviction of a criminal offense related to fraud, theft, embezzlement, breach of fiduciary responsibility, or other financial misconduct in connection with the delivery of a health care item or service, including the performance of management or administrative services related to the delivery of such items or services, or with respect to any act or omission in a health care program (other than Medicare or a state health care program) operated by, or financed in whole or in part, by any federal, state, or local government agency.  Id.

The IG identified three aggravating factors as a basis for increasing the exclusion period from five to 13 years:  (1) the acts resulting in Petitioner’s conviction, or similar acts, caused, or were intended to cause, a financial loss to a government agency or program of $50,000 or more, in this case approximately $175,000; (2) the criminal acts resulting in Petitioner’s conviction were committed over a period of more than one year, from approximately October 2010 to April 2013; and (3) the District Court’s sentence included a term of incarceration, in this case 37 months.  Id. at 2.

Petitioner timely requested a hearing before an administrative law judge to dispute the length of the exclusion.  On July 18, 2018, I held a pre-hearing conference by telephone with the parties, the substance of which is summarized in my July 26, 2018 Order Summarizing Pre-Hearing Conference and Setting Briefing Schedule (Pre-Hearing Order).  At the pre-hearing conference, Petitioner conceded that there was a basis for his exclusion, but maintained that the length of the exclusion was unreasonable.  Pre-Hearing Order ¶ 3.

In accordance with my Pre-Hearing Order, the IG filed a brief (IG Br.) on September 7, 2018, with exhibits marked as IG Exs. 1 through 5.  Petitioner filed a brief (P. Br.) received on November 5, 2018, with exhibits marked as P. Exs. 1 through 5.  The IG filed a reply brief (IG Reply) on November 20, 2018.  Petitioner filed a sur-reply on December 7, 2018 (P. Sur-reply).2

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II. Issue

The only issue in this case before me is whether the 13-year duration of the exclusion is unreasonable.

III. Exhibits

Petitioner did not object to any of the IG’s proposed exhibits.  42 C.F.R. § 1005.8(c); Pre‑Hearing Order ¶ 5; Civ. Remedies Div. Pro. § 14(e).  Therefore, I admit IG Exs. 1-5 into the record.

In his Reply Brief, the IG objected to Petitioner’s Ex. 1, which consists of five non‑sequential excerpted pages from the Presentence Investigation Report (PSR) prepared as part of Petitioner’s criminal case.  IG Reply at 2; P. Ex. 1.  The IG asserts this exhibit should be excluded because it is incomplete and it is unclear whether Petitioner obtained consent to disclose the report.  IG Reply at 2.  Petitioner concedes the exhibit was incomplete, but explains that he only submitted the five pages he thought relevant to his arguments to me and left out other pages because he “did not want to expose [his] family or young children to personal and sensitive information, since this appeal and decision will become public knowledge.”  P. Sur-reply at 2.

I agree that written evidence should generally be submitted in its entirety.  See Fed. R. Evid. 106 (“If a party introduces all or part of a writing or recorded statement, an adverse party may require the introduction, at that time, of any other part — or any other writing or recorded statement — that in fairness ought to be considered at the same time.”).  Where such evidence includes sensitive or private information, the appropriate course of action for a party is to redact the document or ask to submit it under seal.

However, I do not expect an unrepresented party like Petitioner to know this, and would typically give a party an opportunity to cure the defect before excluding evidence on this basis.  But there are other reasons to reject this exhibit.  The bottom of the second page of the PSR states, “It is the policy of the federal judiciary and the Department of Justice that further redisclosure of the presentence investigation report is prohibited without the consent of the sentencing judge.”  P. Ex. 1 at 2.  Petitioner has not indicated that he had received consent from the sentencing judge to disclose this report.  I am therefore not inclined to allow its use in proceedings before me.

Moreover, the evidence submitted is of questionable relevance.  The U.S. Department of Probation prepares a PSR for a specific purpose – to assist a sentencing judge by identifying all information relevant to assessing the proper sentence for that particular defendant.  See Fed. R. Crim. Pro. 32(d).  As I discuss below, I am only permitted to consider a much narrower range of mitigating evidence, and thus I ultimately would assign very little weight to any information provided in the PSR.  Therefore, P. Ex. 1 is

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excluded from the record.  The IG did not object to P. Exs. 2-5 and they are admitted into the record.

IV. Decision on the Record

Both parties indicated that a hearing is not necessary in this case and offered no witnesses.  IG Br. at 8-9; P. Br. at 10.  Accordingly, I will decide this case on the briefs submitted and the exhibits of record.

V. Jurisdiction

I have jurisdiction to hear and decide this case.  42 U.S.C. § 1320a-7(f)(1); 42 C.F.R. §§ 1001.2007(a)(1)-(2), 1005.2(a).

VI. Findings of Fact, Conclusions of Law, and Analysis3

1. Exclusion is required because Petitioner was convicted of a criminal offense related to the delivery of a health care item or service under the Medicare program under 42 U.S.C. § 1320a-7(a)(1).

The IG must exclude an individual from participation in federal health care programs if the individual was convicted of a criminal offense related to the delivery of a health care item or service under the Medicare program.  42 U.S.C. § 1320a-7(a)(1).  Here, there is plainly evidence to support the determination that Petitioner was convicted of such an offense.

Petitioner pled guilty to one count:  use of the mail and facilities in interstate commerce and interstate travel to promote, carry on, and facilitate commercial bribery in violation of 18 U.S.C. § 1952(a)(3).  IG Ex. 4.  Petitioner’s conviction was based on his actions, in concert with others, to refer patient blood specimens to a laboratory for testing in exchange for bribe payments.  IG Ex. 3 at 4; IG Ex. 4 at 1-2.  Further, Petitioner concedes that he was convicted of a criminal offense that falls within the meaning of 42 U.S.C. § 1320a-7(a)(1).  P. Br. at 1-2; Pre-Hearing Order ¶ 3.  The IG has therefore proven a factual and legal basis for Petitioner’s exclusion.

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2. Exclusion is otherwise required because Petitioner was convicted of a felony criminal offense related to fraud, theft, embezzlement, breach of fiduciary responsibility, or other financial misconduct in connection with the delivery of a health care item or service under 42 U.S.C. § 1320a-7(a)(3).

The IG must also exclude an individual from participation in federal health care programs where an individual is convicted of a criminal offense consisting of a felony relating to fraud, theft, embezzlement, breach of fiduciary responsibility, or other financial misconduct.  42 C.F.R. § 1320a-7(a)(3).  The evidence here supports exclusion on that alternate basis as well.

As described above, Petitioner pleaded guilty to charges related to his referral of his patients’ blood specimens to a laboratory for testing in exchange for monthly bribe payments.  IG Ex. 3 at 4; IG Ex. 4 at 1-2.  Such conduct clearly constitutes a criminal offense related to the forms of financial misconduct contemplated by the Act.  Petitioner again concedes that he was convicted of a criminal offense that falls within the meaning of 42 U.S.C. § 1320a‑7(a)(3).  P. Br. at 1-2; Pre-Hearing Order ¶ 3.  The IG has therefore also proven a factual and legal basis for Petitioner’s exclusion under this provision.

3. Petitioner must be excluded for a minimum of five years.

An exclusion imposed pursuant to 42 U.S.C. § 1320a-7(a)(1) or 42 U.S.C. § 1320a‑7(a)(3) must be for at least five years.  42 U.S.C. § 1320a-7(c)(3)(B).

4. The IG has proven three aggravating factors exist to support an exclusion period beyond the five-year statutory minimum.

The regulations establish aggravating factors that the IG may consider to lengthen the period of exclusion beyond the five-year minimum for a mandatory exclusion.  42 C.F.R. § 1001.102(b).  In this case, the IG advised Petitioner in the exclusion notice of three aggravating factors that justified excluding him for more than five years.  IG Ex. 1 at 2.  These factors are listed in 42 C.F.R. § 1001.102(b)(1), (2), and (5).  I must uphold the IG’s determination as to the length of exclusion so long as it is not unreasonable.  42 C.F.R. § 1001.2007(a)(1)(ii).  As outlined below, the IG’s determination is reasonable.

a. The IG established the aggravating factor stated in 42 C.F.R. § 1001.102(b)(1) – the criminal acts resulting in Petitioner’s conviction caused, or were intended to cause, a financial loss to government agencies of $50,000 or more.

The IG asserted Petitioner’s offense caused losses to federal health care programs in excess of $50,000.  IG Br. at 5, citing 42 C.F.R. § 1001.102(b)(1).  Petitioner pleaded guilty to a one-count information charging him with acceptance of bribes contrary to

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18 U.S.C. § 1952(a)(3).  IG Ex. 4.  By pleading guilty, Petitioner admitted that between October 2010 and April 2013, he received about $175,000 in cash payments in exchange for referring blood specimens of patients to a specific laboratory.  As part of his plea agreement, Petitioner also agreed to forfeit $175,000, which represented the proceeds traceable to the offense.  IG Ex. 4 at 1, 4.  The District Court accepted his plea, adjudicated Petitioner guilty of the charged offense, and entered a Forfeiture Order requiring Petitioner to forfeit $175,000, the value of the proceeds he improperly obtained.  IG Ex. 5 at 3.

Petitioner now contests the IG’s determination that he caused or intended to cause losses to federal government programs in excess of $50,000.  He asserts that there is no “readily identifiable loss in this case” because it was not determined that the referrals he made were medically unnecessary.  P. Br. at 3-4.  This argument is without merit.  It is well-established that an amount ordered as restitution constitutes proof of the amount of financial loss to a government program.  See, e.g., Juan de Leon, Jr., DAB No. 2533 at 5 (2013); Craig Richard Wilder, M.D., DAB No. 2416 at 9 (2011) (“[R]estitution has long been considered a reasonable measure of program loss.”).

Petitioner admitted to receiving $175,000 in bribe payments in his guilty plea.  He agreed to forfeit that amount as proceeds of his crime.  IG Ex. 4 at 1, 4.  The amount that Petitioner agreed to forfeit is considered a reasonable valuation of financial loss to the Medicare program caused by his crime.  See Farzana Begum, M.D., DAB No. 2726 at 16 n.8 (2016) (noting that forfeiture amounts are a reasonable measure of program loss and equating forfeiture amounts to restitution).  Petitioner cannot now dispute the admissions he made in order to secure a plea deal; such an argument amounts to a collateral attack on the underlying conviction, which is impermissible in these proceedings.  42 C.F.R. § 1001.2007(d).  The evidence before me establishes that the acts resulting in Petitioner’s conviction caused a loss of $175,000, well beyond the regulatory threshold for this aggravating factor.

Petitioner also argues that the $175,000 he agreed to forfeit was ordered to be paid “joint and several [sic] with my brother . . . .  I am not solely responsible for the entire amount.”  P. Br at 4; P. Sur-reply at 2-3.  Petitioner misunderstands the phrase “joint and several,” which actually means both he and his brother are each fully liable for the full forfeiture amount.   Moreover, the District Court’s order of forfeiture plainly establishes that Petitioner is responsible for the total amount, less any forfeiture payments made by his brother.  IG Ex. 5 at 2; see also U.S. v. Ingles, 445 F.3d 830, 839 (5th Cir. 2006) (affirming joint and several restitution order where one co-defendant was ultimately responsible for more restitution than other co-defendant).  In addition, the regulations provide that the entire amount of restitution provides a basis for an aggravating factor.  See 42 C.F.R. § 1001.102(b)(1) (“the entire amount of financial loss to . . . programs . . . will be considered regardless of whether full or partial restitution has been made.”).  Finally, even if I were to credit Petitioner’s argument with respect to shared liability, the

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amount he would individually be liable for would still be above the $50,000 regulatory threshold.  Therefore, the IG has sustained his burden of proving financial loss to a government program of $50,000 or more.

b. The IG established the aggravating factor stated in 42 C.F.R. § 1001.102(b)(2) – the criminal acts resulting in Petitioner’s conviction lasted a period of one year or more.

The IG asserted that Petitioner’s criminal acts were committed over a period of one year or more.  See 42 C.F.R. § 1001.102(b)(2).  The information to which Petitioner pleaded guilty charged him with use of the mail and facilities in interstate commerce to promote, carry on, and facilitate commercial bribery that lasted more than one year.  IG Ex. 3 at 3-5.  The information and Petitioner’s plea agreement indicate that he accepted bribes for the referral of blood specimens to a laboratory between October 2010 and April 2013.  IG Ex. 3 at 4; IG Ex. 4 at 1-2.  Petitioner does not dispute this aggravating factor.  Therefore, the evidence before me establishes that the acts resulting in Petitioner’s conviction occurred over a period of one year or more.

c. The IG established the aggravating factor stated in 42 C.F.R. § 1001.102(b)(5) – the sentence imposed against Petitioner included a period of incarceration.

The IG asserted that Petitioner’s criminal conviction resulted in a sentence of incarceration.  See 42 C.F.R. § 1001.102(b)(5).  The record shows that the District Court sentenced Petitioner to 37 months of incarceration.  IG Ex. 3 at 2.  Again, Petitioner has not disputed this factor.  Therefore, the evidence of record shows that Petitioner was sentenced to 37 months of incarceration based on his criminal conduct.

Petitioner makes arguments regarding the aggravating factors found at 42 C.F.R. §§ 1001.102(b)(3) and (d)(1).  However, the IG did not apply those aggravating factors in this case, and therefore I need not address Petitioner’s arguments.

5. Petitioner did not prove any mitigating factors exist in this case upon which I may rely to reduce the exclusion period.

Where the IG has properly exercised his discretion to increase the exclusionary period, as he has done here, I may only reduce that period after considering the specific mitigating factors found at 42 C.F.R. § 1001.102(c):

(1)  The individual or entity was convicted of three or fewer misdemeanor offenses, and the entire amount of financial loss (both actual loss and intended loss) to Medicare or any other Federal, State or local governmental health care program due

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to the acts that resulted in the conviction, and similar acts, is less than $1,500;

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

(3)  The individual’s or entity’s cooperation with Federal or State officials resulted in –

(i)  Others being convicted or excluded from Medicare, Medicaid and all other Federal health care programs,

(ii)  Additional cases being investigated or reports being issued by the appropriate law enforcement agency identifying program vulnerabilities or weaknesses, or

(iii)  The imposition against anyone of a civil money penalty or assessment under part 1003 of this chapter.

Petitioner has the burden to prove by a preponderance of the evidence that there is a mitigating factor or actors for me to consider.  42 C.F.R. § 1005.15(c).

Based on my consideration of the entire record, Petitioner has failed to establish any mitigating factor that I am permitted to consider to reduce the period of his exclusion.  To argue mitigation, Petitioner relies on the PSR he submitted to demonstrate no loss to the government and no harm to any patients.  He asserts that he has proactively sought recovery by speaking to other physicians regarding the actions leading to his conviction; he also states he has kept up with developments in medicine and meets with other incarcerated physicians to discuss ethical and substantive topics in medicine.  P. Br. at 9-10.  However, Petitioner’s asserted reasons for mitigation are not recognized by the governing regulations.  See 42 C.F.R. § 1001.102(c).  I therefore cannot consider them, whatever their merit.  Accordingly, I find that Petitioner has not met his burden to establish any mitigating factors that would justify reducing the period of exclusion.

6. A 13-year exclusion period is not unreasonable.

I must uphold the IG’s determination as to the length of exclusion unless it is unreasonable.  42 C.F.R. § 1001.2007(a)(1)(ii).  It is important to note that it is the quality of the aggravating (or mitigating) factors that is most important when considering

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the length of exclusion and not the sheer number of aggravating factors that are present in a given case.  As the Secretary of Health and Human Services stated in the preamble to the final rule establishing the exclusion regulations:

We do not intend for the aggravating and mitigating factors to have specific values; rather, these factors must be evaluated based on the circumstances of a particular case.  For example, in one case many aggravating factors may exist, but the subject’s cooperation with the OIG may be so significant that it is appropriate to give that one mitigating factor more weight than all of the aggravating.  Similarly, many mitigating factors may exist in a case, but the acts could have had such a significant physical impact on program beneficiaries that the existence of that one aggravating factor must be given more weight than all of the mitigating.  The weight accorded to each mitigating and aggravating factor cannot be established according to a rigid formula, but must be determined in the context of the particular case at issue.

57 Fed. Reg. 3298, 3314-15 (Jan. 29, 1992).

Here, the quality of the aggravating factors proven by the IG demonstrates a longer exclusion period to be reasonable.  A federal court convicted Petitioner for participating in a scheme in which he accepted bribes for referring patient specimens to a specific laboratory that resulted in losses to government programs of $175,000.  IG Ex. 4; IG Ex. 5.  This amount of loss is significantly more than the $50,000 threshold to be considered aggravating.  Financial loss is an “exceptional aggravating factor” where the loss is “substantially greater than the statutory standard.”  Jeremy Robinson, DAB No. 1905 (2004); see also Donald A. Burstein, Ph.D., DAB No. 1865 (2003).

In addition, the criminal acts that Petitioner participated in lasted for more than two years, from October 2010 through April 2013.  During this time he accepted multiple bribes related to the delivery of health care services.  This prolonged criminal conduct demonstrates Petitioner’s high level of untrustworthiness because it shows that his involvement was not simply a mistake or that he was temporarily involved in the scheme.  Rather, he participated in a process designed to systematically defraud the Medicare program.

Finally, Petitioner’s sentence of 37 months of incarceration for his crime constitutes another piece of aggravating evidence.  IG Ex. 3 at 2.  Petitioner was incarcerated for a substantial period of time, indicating the gravity of his offense.

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Petitioner argues his exclusion is not reasonable because his 37-month sentence of incarceration is significantly lower than the 13-year period selected by the IG.  P. Br. at 12.  Petitioner’s argument is without merit.  Petitioner cites no law or regulation to support his contention that the length of an exclusion imposed by the IG under section 1128(a) of the Act should not be longer than the length of incarceration imposed by a criminal court.4

Petitioner fails to comprehend that the criminal proceeding he underwent before the District Court has a fundamentally different purpose than the exclusion proceeding before me.  A sentence rendered in a criminal proceeding furthers “the basic purposes of criminal punishment:  deterrence, incapacitation, just punishment, and rehabilitation.  U.S. Sentencing Commission, 2018 Guidelines Manual at Ch. 1, Pt. A. (available at https://www.ussc.gov/guidelines/2018-guidelines-manual).  The District Court imposed a 37-month sentence of incarceration on Petitioner to further those goals.

By contrast, exclusions under section 1128 of the Act are civil and remedial, not criminal and punitive.  Ethan Edwin Bickelhaupt, M.D., DAB No. 2480 at 3 (2012) (citations omitted).  As the Eleventh Circuit observed, “. . .the primary goal of the legislation is to protect present and future Medicare beneficiaries from the abusers of these programs.”  Manocchio v. Kusserow, 961 F.2d 1539, 1542 (11th Cir. 1992).

The IG’s selection of a 13-year period of exclusion was not designed to punish Petitioner, unlike his 37-month period of incarceration.  The IG instead selected this period as one necessary to protect the beneficiaries of the Medicare program from Petitioner.  Petitioner’s argument concerning the discrepancy between his criminal sentence and the IG’s proposed exclusion period is without merit.

Petitioner also cites other cases of exclusion brought by the IG where petitioners were responsible for similar or greater losses but received slightly smaller periods of exclusion.5  P. Br at 7-9.  But as I noted at the outset of this section, the Secretary did not intend the IG to weigh the various factors in aggravation or mitigation quantitatively, but qualitatively.  57 Fed. Reg. at 3314-15.  It is thus generally inappropriate to simply count the factors present in one case and compare them to another.

In any event, closer scrutiny of the cases which Petitioner believes demonstrate the unfair length of his exclusion reveals them to be inapposite.  In the Holladay case, for example, the Board determined the IG failed to adequately prove one aggravating factor, leaving only two others.  Jason Hollady, M.D., a/k/a Jason Lynn Hollady, DAB No. 1855 (2002).  Similarly, in Begum, the IG found only two aggravating factors, and Dr. Begum at least attempted to make a showing that two relevant mitigating factors concerning her mental

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condition and her attempt to provide cooperation to the government were applicable.  Farzana Begum, M.D.,DAB No. 2726 (2016).  Here, Petitioner has made no such efforts to mitigate the IG could consider.  The 10-year exclusion in the Ostrager case relied on three aggravating factors, but one was different from those found here – in the Ostrager case, the IG relied on Dr. Ostrager’s suspension by his medical board as an aggravating factor, while here, the IG relied on the loss amount caused by Petitioner’s criminal conduct.  Brett Ostrager, DAB CR4950 (2017).6  In Calabrese, the IG relied on the same three aggravating factors found in Ostrager to impose the same 10-year period of exclusion.  Angelo D. Calabrese, M.D.,DAB No. 2744 (2016).

These are the more obvious differences that allow Petitioner’s case to be distinguished.  But I reiterate that it is not my place to count the factors considered by the IG or substitute my own judgment as to why one period of exclusion differs from another.  As the Board has observed, “. . .the preamble to the final regulations expressly states that the language of section 1001.2007(a)(2) reflect the ‘broad discretion vested in the I.G. to determine the length of exclusion.  57 Fed. Reg. 3298, 3321 (1992).  The preamble also states:  ‘So long as the amount of the time chosen by the [I.G.] is within a reasonable range, based on demonstrated criteria, the ALJ has no authority to change it[.]’”  Calabrese, DAB No. 2744 at 7.

Here, the IG has demonstrated criteria that prevent me from concluding the 13-year period of exclusion is unreasonable.  Petitioner has not shown by comparison to other cases that the exclusion period here is unreasonable.  I must therefore uphold the IG’s exclusion period selection.

Petitioner also asserts that the effective date of his exclusion should be made retroactive to the date of his plea agreement.  P. Br. at 7, citing 42 C.F.R. § 424.535.  However, this regulation is specific to revocation by the Centers for Medicare and Medicaid Services of a provider’s or supplier’s participation in the Medicare program, and is not applicable to exclusions imposed by the IG.

Even allowing for erroneous citation, I am unable to afford Petitioner the relief he requests.  Under the applicable regulations, the effective date of an exclusion is 20 days after the date of the IG’s notice of exclusion.  42 C.F.R. § 1001.2002(b).  The regulations do not allow me to adjust the effective date for any reason.  Shaikh M. Hasan, M.D., DAB No. 2648 at 12 (2015) (“[T]here is no authority to adjust the effective date of the I.G.’s exclusion, which was set based on 42 C.F.R. § 1001.2002.  That is precisely the result Petitioner wants to achieve, but the law does not allow it.”).

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VII. Conclusion

Ultimately, I do not have the authority to substitute my own judgment for that of the IG, or impose a period of exclusion that seems more reasonable to me.  See de Leon, Jr., DAB No. 2533 at 5; Wilder, DAB No. 2416 at 8.  Based on the seriousness of the aggravating factors described above, I conclude the IG has satisfactorily established that Petitioner’s criminal conduct had a substantial financial impact on the Medicare program, and demonstrated his untrustworthiness to participate in federal health care programs. Accordingly, the length of exclusion imposed by the IG is not unreasonable.  I affirm the IG’s determination to exclude Petitioner for 13 years from participating in Medicare, Medicaid, and all federal health care programs pursuant to 42 U.S.C. §§ 1320a‑7(a)(1) and (a)(3).

• 1. Document 7b in the official case file maintained in the Departmental Appeals Board (DAB) E-file system; for clarity and simplicity, I will cite to the exhibits attached by the parties to their respective briefs by the exhibit numbers indicated by the parties, not the document numbers assigned by DAB.
• 2. Petitioner did not seek leave to file a sur-reply in advance but did request leave in the body of the pleading itself. P. Sur-reply at 1. Because CMS has not objected to this filing, I accept Petitioner’s sur-reply and have considered the arguments made therein.
• 3. My findings of fact and conclusions of law appear in bold and italics.
• 4. Even the mandatory minimum exclusionary period of five years allowed by law would substantially exceed Petitioner’s 37-month sentence.
• 5. The IG inadvisably failed to address this argument at all.
• 6. Petitioner asserts Dr. Ostrager caused a loss of around $100,000. P. Br. at 8-9. If true, this is another obvious basis for the IG to treat them differently, as Petitioner caused a substantially higher loss of $175,000.