Rebecca G. Cairo, DAB CR6068 (2022)

DECISION

The Inspector General (IG) of the United States Department of Health and Human Services excluded Petitioner, Rebecca G. Cairo, for 25 years from participation in all federal health care programs based on Petitioner’s conviction of a conspiracy to defraud the Medicare program.  That conspiracy lasted over three years and resulted in over $6 million in losses to the Medicare program.  Petitioner was sentenced to imprisonment for over four years for her crime.  Although Petitioner does not dispute that the IG properly excluded Petitioner, Petitioner disputes the length of the exclusion because she believes that the IG failed to consider a mitigating factor that applies to this case and that the length of exclusion is inconsistent with previous exclusions imposed on others.  I conclude that the 25-year exclusion is not unreasonable based on the aggravating factors in this case.  I also conclude that Petitioner did not prove the existence of a mitigating factor to reduce the length of exclusion.  Finally, Petitioner’s case is not inconsistent with other exclusions.  

I. Background

In an October 29, 2021 notice, the IG informed Petitioner that she was being excluded

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from participation in all federal health care programs under section 1128(a)(1) of the Social Security Act (42 U.S.C. § 1320a-7(a)(1)) for a period of 25 years. IG Ex. 1 at 1. The IG provided the following list of aggravating factors to support the 25-year length of exclusion:  

1. The acts resulting in the conviction, or similar acts, [] caused, or were intended to cause, a financial loss to a government program or one or more entities of $50,000 or more. (The entire amount of financial loss to such programs or entities, including any amounts resulting from similar acts not adjudicated, will be considered regardless of whether full or partial restitution has been made.)  The court ordered [Petitioner] to pay approximately $6,158,100 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 January 2016 to about August 2019.  
3. The sentence imposed by the court included incarceration. The court sentenced [Petitioner] to 52 months of incarceration.  

IG Ex. 1 at 2.  The IG notice stated that the exclusion would be effective 20 days from the date of the notice. IG Ex. 1 at 1.  

Petitioner filed a request for an administrative law judge hearing on December 2, 2021. In the hearing request, Petitioner admitted that she pleaded guilty to one count of Conspiracy to Commit Health Care Fraud and Wire Fraud in violation of 18 U.S.C. § 1349 and was sentenced to 52 months of incarceration. Petitioner also stated that she voluntarily forfeited her license to be a registered nurse. Hearing Req. at 1-2.  

In her hearing request, Petitioner admitted that the IG must exclude her for at least five years. Hearing Req. at 2. Therefore, Petitioner only appealed the length of the imposed exclusion as unreasonable. Hearing Req. at 1. Specifically, Petitioner argued that a mitigating factor exists to reduce the length of exclusion because Petitioner cooperated with federal officials, and her cooperation resulted in additional cases being investigated under 42 C.F.R. § 1001.102(c)(3)(ii):  

[Petitioner] cooperated with federal officials and her cooperation resulted in “cases being investigated.” [Petitioner] met with federal agents on three separate occasions, beginning on February 20, 2020. See Exhibit A, Proffer Letter.  Due to [Petitioner’s] cooperation, federal agents met with [Petitioner] two more times in person, on March 12, 2020 and March 13, 2020. Clearly, [Petitioner’s]

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first meeting on February 20, 2020, led to further investigation.

Hearing Req. at 4.

Petitioner also asserted that the length of her exclusion is inconsistent with (i.e., longer than) the exclusion periods imposed on other individuals. Hearing Req. at 4-6. Based on various cases, Petitioner argues that her exclusion period should be no more than 15 years in length even without considering the mitigating factor present in this case.Hearing Req. at 6.

On December 9, 2021, the Civil Remedies Division acknowledged receipt of the hearing request, notified the parties that I had set a telephonic prehearing conference for January 4, 2022, issued my Standing Prehearing Order (SPO), and a copy of the Short-Form Brief for Petitioner to complete and submit with her prehearing exchange.  

On December 22, 2021, Petitioner’s counsel requested that I reschedule the prehearing conference because Petitioner was in quarantine at the prison where she is located, and counsel wanted to confer with Petitioner when she was out of quarantine. The IG did not object to this motion.  

On January 3, 2022, I issued an order granting Petitioner’s request and rescheduling the prehearing conference for January 26, 2022. I also established a prehearing exchange schedule.

On January 26, 2022, I held a telephonic prehearing conference in this case, the substance of which is summarized in my January 27, 2022 Order Following Prehearing Conference. At the conference, Petitioner confirmed that she does not dispute the imposition of a five-year exclusion or that the three aggravating factors identified by the IG exist. Therefore, the only issue in the case is the reasonableness of the 25-year length of exclusion. Petitioner confirmed that her dispute as to the length of the exclusion is based on the existence of a mitigating factor (i.e., that she cooperated with law enforcement officials under 42 C.F.R. § 1001.102(c)(3)) and that, in comparison with other exclusion cases, Petitioner has received a longer exclusion than other similar individuals. Based on this, I reiterated that, as stated in SPO ¶ 6, Petitioner has the burden of proving the existence of mitigating factors and that Petitioner should provide evidence to prove the claimed cooperation with law enforcement.  

On February 14, 2022, the IG submitted a brief (IG Br.) together with five exhibits. On March 25, 2022, Petitioner submitted a brief (P. Br.) and 11 exhibits. Because the submission did not meet a technical submission requirement, Petitioner resubmitted her prehearing submission on March 28, 2022. On April 7, 2022, the IG filed a reply brief (IG Reply).

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II. Admission of Evidence and Decision on the Written Record

I admit all of the proposed exhibits because neither party objected to any of them. SPO ¶ 12; see 42 C.F.R. § 1005.8(c).  

The parties both indicated that they have no witnesses to offer in this case and neither believes an oral hearing is necessary.  IG Br. at 10; P. Br. at 4. Therefore, I decide this case based on the written record. See SPO ¶¶ 11, 16; Civil Remedies Division Procedures § 19(d); see also 42 C.F.R. § 1005.16(b).  

III. Issue

Whether the length of the exclusion imposed by the IG is unreasonable. 42 C.F.R. § 1001.2007(a)(1)(ii).  

IV. Jurisdiction

I have jurisdiction to adjudicate this case. 42 U.S.C. § 1320a-7(f)(1); 42 C.F.R. § 1005.2.  

V. Findings of Fact

1. Petitioner was a registered nurse.  Hearing Req. at 2.
2. On September 20, 2019, a grand jury in the United States District Court for the Southern District of Florida (District Court) indicted Petitioner on four counts of criminal conduct.  See IG Ex. 4.
3. Count 4 of the Indictment charged Petitioner with Conspiracy to Commit Health Care Fraud and Wire Fraud (18 U.S.C. § 1349).  IG Ex. 4 at 9-10.
4. In a February 19, 2020 letter, the United States Department of Justice (DOJ) stated the following:

a. Petitioner indicated that she was interested in providing information to DOJ. P. Ex. 7 at 1.

b. DOJ and Petitioner were to have a meeting on February 20, 2020. P. Ex. 7 at 1.

c. DOJ stated that the agreement to meet was not a cooperation agreement, plea agreement, immunity agreement, or non-prosecution agreement. P. Ex. 7 at 1.

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d. Petitioner agreed to respond truthfully and completely to questions from DOJ and to provide books, papers, documents, and any other items of evidentiary value to DOJ’s investigation.  P. Ex. 7 at 1.  

e. Petitioner agreed to testify truthfully before any grand juries and at any trials or other proceedings if requested by DOJ.  P. Ex. 7 at 1-2.  

5. On February 20, 2020, Petitioner countersigned DOJ’s February 19, 2020 letter. P. Ex. 7 at

6. In March 2020, Petitioner identified at least one individual from a photograph forwarded to her by DOJ.  P. Exs. 8-10.  

7. On May 19, 2020, Petitioner entered into a Plea Agreement with DOJ and an Agreed Factual Basis for Guilty Plea.  IG Exs. 2, 3.  

8. Petitioner agreed that the following facts are true:

a. Petitioner was the owner and operator of One Plus Florida, Inc d/b/a Cairo Home Care (Cairo), a home health agency that purported to provide home health care services to eligible Medicare beneficiaries. IG Ex. 2 at 1.  

b. Beginning in or around January 2016 and continuing through in or around at least August 2019, Petitioner paid and caused to be paid kickbacks and bribes to various co-conspirators in exchange for the referral of patients to Cairo.  IG Ex. 2 at 1.

c. Petitioner caused claims to be submitted to the Medicare program for home health physical and occupational therapy services that were (i) the result of the payment of bribes and kickbacks, and (ii) medically unnecessary, not eligible for Medicare reimbursement, or never rendered.  IG Ex. 2 at 1-2. 

d. Due to Petitioner’s participation in the illegal scheme, Petitioner submitted false and fraudulent claims that amounted to an intended loss to the Medicare program of $6,158,111.  IG Ex. 2 at 2; IG Ex. 3 at 7.  

9. Petitioner’s agreement to plead guilty to Count 4 of the Indictment included the following provisions:

a. Petitioner agreed to plead guilty to knowingly and willfully combining, conspiring, confederating, and agreeing with others in violation of 18 U.S.C. § 1349 to knowingly and willfully execute a scheme and artifice to defraud a health care program and to obtain, by means of materially false

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and fraudulent pretenses, representations, and promises, money and property owned by the health care benefit program, in connection with the delivery of and payment for health care benefits, items, and services, in violation of 18 U.S.C. § 1347. IG Ex. 3 at 1.

b. Petitioner acknowledged that the guilty plea would result in exclusion from all federal health programs. IG Ex. 3 at 4.

c. Petitioner agreed to cooperate with law enforcement officials, federal prosecutors, and federal officials charged with overseeing the Medicare program by providing full and complete information as to her actions and “by providing active cooperation in ongoing investigations if requested to do so.  If called upon to do so, [Petitioner] shall provide complete and truthful testimony before any grand jury or trial jury in any criminal case, in any civil proceeding or trial, and in any administrative proceeding or hearing.” IG Ex. 3 at 5.

d. Petitioner agreed to forfeiture of $1,275,020.21, which is the sum of money equal in value to the gross proceeds she obtained through the commission of her crime.  IG Ex. 3 at 10.  

e. Petitioner agreed to pay restitution to the United States in the amount of $6,158,111, “which shall be joint and several with her co-conspirators.”  IG Ex. 3 at 13.  

f. DOJ agreed to seek dismissal of the remaining counts in the Indictment.  IG Ex. 3 at 2.  

g. DOJ agreed that it will recommend to the District Court that Petitioner receive “a three-level reduction for acceptance of responsibility” under the Sentencing Guidelines.  IG Ex. 3 at 6.  

h. DOJ reserved the right to evaluate the nature and extent of Petitioner’s cooperation and make that known to the District Court at sentencing.  “If in the sole and unreviewable judgment of [DOJ] the [Petitioner’s] cooperation is of such quality and significance to the investigation and prosecution of other criminal matters as to warrant the [District] Court’s downward departure from the sentence advised by the Sentencing Guidelines, [DOJ] may at or before sentencing make a motion . . . reflecting that the [Petitioner] has provided substantial assistance and recommending a sentence reduction.” IG Ex. 3 at 6-7.

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10. In a June 17, 2020 letter from Petitioner’s counsel to DOJ, Petitioner provided information on 12 individuals and entities as to their involvement in the conspiracy related to Cairo.  P. Ex. 11 at 1-6. For four individuals, Petitioner stated that they provided false information to Petitioner that caused Petitioner to submit false claims to the Medicare program. P. Ex. 11 at 2-4.  Petitioner also provided a variety of documents to DOJ. P. Ex. 11 at 8-268.

11. An August 25, 2020 Judgment in Criminal Case provided for the following:

a. The District Court adjudged Petitioner guilty of Count 4 of the Indictment – Conspiracy to Commit health care fraud and wire fraud under 18 U.S.C. § 1349. IG Ex. 5 at 1.  

b. The District Court sentenced Petitioner to imprisonment for 52 months and, following release, to three years of supervised release. IG Ex. 5 at 2-3.  

c. The District Court identified the Centers for Medicare & Medicaid Services (CMS) as the victim in Petitioner’s criminal case. IG Ex. 5 at 5.  

d. The District Court ordered Petitioner to pay restitution in the amount of $6,158,111, although the order noted that the restitution is owed jointly and severally with one of Petitioner’s co-conspirators. IG Ex. 5 at 5.

VI. Conclusions of Law and Analysis

The Secretary of Health and Human Services (Secretary) must exclude an individual from participation in all federally funded health care programs when that individual “has been convicted of a criminal offense related to the delivery of an item or service under subchapter XVIII [of the Social Security Act] or under any State health care program.” 42 U.S.C. § 1320a-7(a)(1). The Secretary has interpreted this statute to mean that he must exclude an individual who “[h]as been convicted of a criminal offense 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.” 42 C.F.R. § 1001.101(a). Therefore, for the purposes of this case, the two essential elements to support a mandatory exclusion are:  (1) the excluded individual must have been convicted of an offense; and (2) the offense must be related to the delivery of a health care item or service under the Medicare or Medicaid programs.  

If an individual has been convicted of a crime that requires mandatory exclusion, then the Secretary must exclude the individual for at least five years. 42 U.S.C. § 1320a 7(c)(3)(B). However, the Secretary established, by regulation, a list of aggravating and mitigating factors that are to be considered in each case to determine 

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whether the length of a mandatory exclusion should exceed five years. See 42 C.F.R. § 1001.102(b)-(c).  

The regulations state that the preponderance of the evidence standard of proof is employed in exclusion cases. 42 C.F.R. §§ 1001.2007(c), 1005.15(d). The regulations provide administrative law judges with the discretion to allocate who has the burden of proof in most exclusion cases. 42 C.F.R. § 1005.15(c). I gave notice at the beginning of these proceedings that the IG had the burden of proving the existence of all alleged aggravating factors and Petitioner had the burden of proving all mitigating factors.  SPO ¶ 6.  

When reviewing the length of exclusion, an administrative law judge may only reduce the length of exclusion when the length imposed by the IG is “unreasonable.”  42 C.F.R. § 1001.2007(a)(1)(ii).  

In the present case, the record supports the IG’s mandatory exclusion and the existence of the three aggravating factors identified by the IG in her exclusion notice. The record does not support the existence of any mitigating factor.  Comparisons of exclusions imposed in other cases do not support a reduction in this case. Overall, based on a qualitative analysis of the aggravating factors in this case, I conclude that the 25-year length of exclusion is not unreasonable. 

1. Petitioner is subject to a mandatory exclusion for at least five years under 42 U.S.C. § 1320a-7(a)(1).  

Petitioner does not dispute that she must be excluded for a minimum of five years under 42 U.S.C. § 1320a-7(a)(1). A review of the record indicates that there is no doubt that Petitioner is subject to a mandatory five-year exclusion.

2. The IG appropriately considered as an aggravating factor that Petitioner’s criminal conspiracy resulted in a $6,158,111 loss to the Medicare program.  This amount is a significant factor weighing heavily in favor of a lengthy exclusion.  

Petitioner admitted that her criminal conspiracy to commit fraud on the Medicare program resulted in a $6,158,111 loss to the Medicare program, and Petitioner agreed to pay restitution in that amount jointly and severally with co-conspirators.  IG Ex. 2 at 2; IG Ex. 3 at 7, 13. The District Court identified CMS as the only victim to Petitioner’s conspiracy to commit fraud on the Medicare program and ordered Petitioner to pay restitution, jointly and severally, with a co-conspirator, in the amount of $6,158,111. IG Ex. 5 at 5.  

If an excluded individual is convicted of a criminal offense that requires mandatory exclusion, the IG may consider as an aggravating factor the acts resulting in conviction,

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or similar acts, caused or were intended to cause a financial loss to a government agency or program of $50,000 or more.  42 C.F.R. § 1001.102(b)(1). In the present case, Petitioner does not dispute that her criminal conspiracy caused or was intended to cause $6,158,111 in loss to the Medicare program.

The amount of loss in this case is 123 times more than the $50,000 minimum amount of loss necessary to consider this an aggravating factor. As a result, this amount of loss is a significant factor that weighs heavily in favor of a lengthy exclusion.  

3. The IG appropriately considered as an aggravating factor that Petitioner’s criminal conspiracy spanned more than three and a half years.  This length of time is a significant factor that strongly supports a lengthy exclusion.

Petitioner admitted that her criminal conspiracy to commit fraud on the Medicare program commenced in or about January 2016 and continued through August 2019. IG Ex. 2 at 1.

If an excluded individual is convicted of a criminal offense that requires mandatory exclusion, the IG may consider as an aggravating factor the length of time that the acts resulting in conviction, or similar acts, were committed if it lasted for more than a year. 42 C.F.R. § 1001.102(b)(2). In the present case, Petitioner does not dispute that her criminal conspiracy lasted more than three and a half years.

The length of time that Petitioner engaged in a criminal conspiracy to defraud the Medicare program is more than three and a half times longer than the minimum amount of time to consider this an aggravating factor. As a result, this length of time represents strong support for a lengthy exclusion.

4. The IG appropriately considered as an aggravating factor that Petitioner was sentenced to incarceration for 52 months. This length of incarceration is a significant factor weighing heavily in favor of a lengthy exclusion.

Petitioner does not dispute that the District Court sentenced Petitioner to imprisonment for 52 months. IG Ex. 5 at 2.

If an excluded individual is convicted of a criminal offense that requires mandatory exclusion, the IG may consider as an aggravating factor a sentence imposed by a court that includes incarceration. 42 C.F.R. § 1001.102(b)(5).

The DAB concluded that a prison sentence of as little as nine months is to be considered a “relatively substantial” period of incarceration for exclusion purposes. Jason Hollady, M.D., DAB No. 1855 at 12 (2002). Petitioner’s 52 month sentence is nearly six times

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longer than that and represents a substantial period, which indicates the seriousness of Petitioner’s offenses.

5. Petitioner did not establish a mitigating factor by a preponderance of the evidence to justify a reduction in the length of exclusion imposed by the IG.  

If the IG proves that an aggravating factor listed in the regulations exists to warrant an exclusion of more than five years, then an excluded individual may raise mitigating factors listed in the regulations to seek a reduction in the length of exclusion. 42 C.F.R. § 1001.102(c). As mentioned above, Petitioner has the burden of proof regarding mitigating factors. The standard of proof is the preponderance of evidence.  42 C.F.R. § 1001.2007(c). 

Petitioner argues that she is entitled to a reduction in the length of exclusion because she cooperated with law enforcement. She stated:

Mitigating factor three (3) is present because [Petitioner] cooperated with federal officials and her cooperation resulted in “cases being investigated.”  [Petitioner] met with federal agents on numerous occasions, beginning on February 20, 2020.  [Petitioner] assisted federal agents with identifying different targets, facilities, providing evidence and providing information on numerous investigations.  

P. Br. at 4; see Hearing Req. at 4.  Petitioner cited to Petitioner Exhibits 7 through 11 as support.

The IG argued that Petitioner failed to prove that a mitigating factor should be considered in this case. The IG stated:

Notably missing from Petitioner’s exhibits or brief is any indication the information led to convictions, sanctions being imposed, or to additional investigations or reports as is required to establish the existence of a mitigating factor under section 42 C.F.R. § 1001.102(c)(3).  Petitioner wholly failed to establish whether her information was useful, relevant, credible, reliable, or even used at all.  In sum, Petitioner failed to establish any mitigating factor.  

IG Reply at 3.

The relevant mitigating factor that Petitioner raises states:

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(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.

42 C.F.R. § 1001.102(c)(3).

Therefore, for this mitigating factor to apply, Petitioner must show that her cooperation resulted in additional cases being investigated. 

There is no doubt that Petitioner cooperated with DOJ by providing information to investigators and prosecutors. P. Exs. 7-11. Indeed, Petitioner agreed to cooperate in her plea agreement. IG Ex. 3 at 5. However, what is lacking is proof that Petitioner’s cooperation resulted in additional cases being investigated. None of Petitioner’s evidence expressly indicates this. Had Petitioner’s cooperation been significant, under the plea agreement, DOJ would have acknowledged this and requested the District Court consider the cooperation when sentencing. IG Ex. 3 at 6-7. Petitioner submitted no evidence that DOJ made such a request.

The DAB has explained the need for such evidence:

[T]he regulation 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. . . . The rule is not designed to reward individuals who may have provided evasive, speculative, unfounded or even spurious information that proved to be so useless that the government official was unable even to open a new case for investigation.  Rather, the 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.

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Stacey R. Gale, DAB No. 1941 at 10-11 (2004). I am not able to evaluate the usefulness of the information and documents that Petitioner provided to DOJ without evidence that DOJ acted upon that information. See 63 Fed. Reg. 46,676, 46,681 (Sept. 2, 1998); 57 Fed. Reg. 3298, 3315 (Jan. 29, 1992). Therefore, I conclude that Petitioner did not provide sufficient evidence that a mitigating factor ought to have been considered in this case.

6. Petitioner’s case comparisons do not support a reduced length of exclusion.

Petitioner argues that a reduction in the length of exclusion is supported by comparisons with other cases decided by administrative law judges. P. Br. at 3-4; Hearing Req. at 4-6; P. Exs. 1-6. In response, the IG disagreed that any of the cases are comparisons that should affect the length of exclusion in this case.  IG Br. at 9-10; IG Reply at 1-2. Further, the IG points out that the DAB has found case comparisons to be of limited utility:

Case comparisons are of limited utility in any event.  When evaluating whether the length of an exclusion is unreasonable, the [DAB] has held that circumstances of the case control and comparisons to other cases are of limited utility.  See, e.g., Kimberly Jones, DAB No. 3033 (2021); Robert Hadley Gross, DAB No. 2807, at 6 (2017); and Baldwin Ihenacho, DAB No. 2667, at 9 (2015). The [DAB] has acknowledged that [although] case comparisons can “inform whether an exclusion falls within a reasonable range,” they must be “supported by analysis that accounts for the unique circumstances of each case and the relative seriousness of any applicable aggravating and mitigating factors.” Id.

IG Br. at 10.  

I agree that case comparisons are of limited value and do not impact this case. To the extent that any are sufficiently similar to the present case, those cases support the 25-year length of exclusion. I consider each of the case comparisons below.  

As Petitioner points out, Yazan B. Al-Madani, DAB CR5833 (2021) (P. Ex. 6) is the most similar to the present case in that the IG imposed a 25-year exclusion. That case also resembles the present one because the same three aggravating factors were present and there were no mitigating factors. While Al-Madani was sentenced to 121 months of incarceration, Petitioner was sentenced to a little less than half of that, 52 months. Also, Al-Madani’s criminal conduct spanned eight years, which is longer than the duration of Petitioner’s criminal conspiracy that lasted three years and eight months. Finally, the financial loss that Al-Madani caused to a local public health care system was

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$897,934.48, but Petitioner’s conspiracy resulted in a loss of $6,158,111, or nearly seven times as much. While it is true that Al-Madani was convicted of numerous offenses and Petitioner only one, there is no doubt that Petitioner’s single offense represents a significant threat to the financial well-being of the Medicare program. Therefore, in determining if the IG’s imposition of a 25-year exclusion on Petitioner is too long in comparison to Al-Madani, I believe that the Al-Madani case would, if anything, support the 25-year exclusion in this case. The greater loss Petitioner caused is sufficient to balance the other factors where the Al-Madani case was quantitatively worse than Petitioner’s case.

In Ronald Grusd, M.D., DAB CR5800 (2021) (P. Ex. 5), the IG initially imposed a 20-year exclusion, but then reduced the length of exclusion to 14 years after concluding that Petitioner’s sentence of incarceration had been reduced from 10 years to 48 months. Grusd’s criminal conduct lasted for two years and 10 months, which is 10 months shorter than Petitioner’s length of criminal conduct. Grusd was sentenced to a shorter term of incarceration of 48 months, in comparison with 52 months for Petitioner. Finally, Grusd’s medical license was suspended, which was not a factor in Petitioner’s case. However, in Grusd, the IG could not include loss to a public agency or program as a factor because the court was unable to determine what that loss was for certain. Significantly, in this case, Petitioner admitted to causing over $6 million in losses to the Medicare program. I consider the large loss in the present case as the reason why the present case and Grusd are not comparable, except that Petitioner clearly warranted a longer exclusion than Grusd based on the loss to Medicare.  

In Kimberly Jones, DAB CR5758 (2020) (P. Ex. 4), the IG imposed a 15-year exclusion based on three aggravating factors. Jones’s criminal conduct lasted two years and eight months, which is a year shorter than Petitioner’s conduct. Jones was sentenced to incarceration for 78 months, which is 26 more months than Petitioner was. Jones’s pharmacy license was also suspended; however, her conduct did not result in a loss to a public agency or program because, unlike Petitioner’s case, it did not involve a crime related to fraud. The huge loss to the Medicare program differentiates this case from the Jones case. Therefore, I do not believe this case is comparable.

In Thomas Sahs, DAB CR5815 (2021) (P. Ex. 3), the IG imposed a 15-year exclusion based on two aggravating factors. Sahs’s criminal conduct involved the loss of $3,493,512 to Tricare, which is more than half of the loss that Petitioner’s conduct caused. Sahs was sentenced to incarceration for 45 months, which is seven months less than Petitioner’s sentence. While this case has a similar crime, it cannot serve to reduce the length of Petitioner’s exclusion. Petitioner caused a loss that was $2.5 million more than Sahs. Further, Petitioner’s crime was committed over an extended period of time and Sahs’s was not.

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In Zandrea Johnson Rayford, DAB CR5196 (2018) (P. Ex. 2), the IG imposed a ten-year exclusion based on three aggravating factors. Rayford engaged in criminal conduct for about the same length of time as Petitioner did. Rayford’s criminal conduct resulted in a loss of $473,445.81 to the Medicare program, whereas Petitioner’s criminal conduct resulted in a loss of more than 12 times that amount. Rayford was sentenced to incarceration for a year and a day, but Petitioner was sentenced to more than four times that length of time. Rayford cannot serve as a basis to reduce the length of the exclusion because Petitioner’s conduct resulted in significantly greater losses to the Medicare program and Petitioner’s term of incarceration was significantly longer.  

In Lorena Coburn, DAB CR5198 (2018) (P. Ex. 1), the IG imposed a five-year mandatory exclusion. This case did not involve any aggravating factors. Therefore, it is not sufficiently analogous to this case as a comparison.  

7. The 25-year length of Petitioner’s exclusion is not unreasonable based on the aggravating factors in this case.  

Petitioner asserts that, without considering any mitigating factors, her exclusion should fall within a range of five to 15 years. P. Br. at 4. 

When considering the length of exclusion, “[t]he 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.” Farzana Begum, M.D., DAB No. 2726 at 2 (2016) (emphasis added). Further, the general purpose of an exclusion under 42 U.S.C. § 1320a-7 is “to protect federal health care programs and the programs’ beneficiaries and recipients from untrustworthy providers.” Susan Malady, R.N., DAB No. 1816 at 9 (2002). Ultimately, I must decide whether the 25-year exclusion is unreasonable (i.e., is it within a reasonable range for the length of exclusion based on the relevant factors?). 42 C.F.R. § 1001.2007(a)(1)(ii); 57 Fed. Reg. 3298, 3321 (Jan. 29, 1992).  

Above, I performed that qualitative assessment of the aggravating factors.  Each aggravating factor was quantifiably well in excess of the minimum amounts required to increase the length of exclusion. Petitioner’s sentence is long and the restitution is extremely high, showing the extent of the harm her crimes caused to the Medicare program. The long period of her criminal conduct shows that she engaged in a conspiracy to commit fraud for years without any moral compunctions as to her behavior.

Petitioner is a significant threat to the Medicare program and other federal health care programs. She happily enriched herself through a conspiracy with others while inflicting financial damage on the nation’s greatest program to ensure health care is provided to the

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elderly and disabled.  While Petitioner pleaded guilty after being caught, which was in her interest to do, this does not mean that she is trustworthy.  

The IG is tasked with imposing exclusions to protect vulnerable federal health care programs from predators like Petitioner. In this case, the IG properly fulfilled her duty by imposing a 25-year exclusion.

VII. Conclusion

I affirm the IG’s determination to exclude Petitioner for 25 years from participating in all federal health care programs.