Yevgeny Tsyrulnikov, M.D., DAB CR6107 (2022)

DECISION

I uphold the ten-year length of exclusion that the Inspector General of the United States Department of Health and Human Services (IG) imposed on Yevgeny Tsyrulnikov, M.D. (Petitioner).

I.   Background

In an August 31, 2021 notice, the IG informed Petitioner that the IG would have to exclude Petitioner from participation in all federal health care programs based on his conviction in the United States District Court for the Northern District of Illinois (District Court).  The IG gave Petitioner an opportunity to provide any information and supporting documentation that Petitioner wanted the IG to consider before the IG imposed the exclusion.  Hearing Req., Ex. A.

Petitioner’s counsel responded with a September 29, 2021 letter in which he detailed a variety of instances where Petitioner cooperated with law enforcement and indicated that he was enclosing 27 pages of “Sensitive Health and Human Services investigation reports documenting [Petitioner’s] cooperation with the agency.”  Hearing Req., Ex. B.

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Petitioner’s counsel stated that, for a period of 19 months, Petitioner spent extensive time assisting agents investigating Petitioner’s co-defendants and others.  The assistance included wearing a recording device.  Hearing Req., Ex. B at 1.  Petitioner’s counsel indicated that Petitioner’s cooperation resulted in the conviction of his co-defendants and restitution in the amount of $610,000, including forfeiture of $391,252.15.  Hearing Req., Ex. B at 1.  Petitioner’s counsel also stated:  “Acknowledging [Petitioner’s] extensive and substantial cooperation with regard to his co-defendants and in other investigations, at sentencing the government moved for a 50% departure pursuant to § 5K1.1 of the U.S. Sentencing Guidelines . . . .  As a result of his extensive cooperation, [Petitioner] was sentenced to only 30 days incarceration.”  Hearing Req., Ex. B at 2.

In a December 30, 2021 notice, the IG informed Petitioner that he was being excluded 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 ten years due to a conviction in the District Court for a criminal offense related to the delivery of an item or service under the Medicare or Medicaid programs.  The notice stated that the exclusion would be effective 20 days from the date of the notice.  IG Ex. 1 at 1.

The IG stated that the exclusion would last longer than the minimum five years required under the statute based on the following four aggravating factors:

• Petitioner’s acts resulting in conviction, or similar acts, caused a financial loss to the Medicare program of approximately $1,584,500.
• Petitioner’s acts, resulting in conviction, or similar acts, were committed from about 2012 to about June 2016.
• Petitioner was sentenced to 30 days of incarceration.
• Petitioner’s Illinois medical license was suspended.

IG Ex. 1 at 1-2; 42 C.F.R. § 1001.102(b)(1), (2), (5), (9).  Further, the IG considered the following mitigating factor when imposing the ten-year exclusion.

• Petitioner’s cooperation with federal or state officials resulted in others being criminally convicted, excluded from federal health care programs, additional cases being investigated, reports being issued by law enforcement identifying program vulnerabilities, or the imposition of a civil money penalty or assessment under 42 C.F.R. pt. 1003.

IG Ex. 1 at 3; 42 C.F.R. § 1001.102(c)(3).

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Petitioner requested an administrative law judge hearing on February 28, 2022, to dispute the length of exclusion.  Petitioner did not dispute that he was convicted of a criminal offense requiring a mandatory five-year exclusion.  Petitioner also did not dispute that he was sentenced to 30 days of incarceration.  However, Petitioner disputed the financial loss to the Medicare program that should be attributed to Petitioner, asserting that he was only ordered to pay $30,000 in restitution.  Petitioner also disputed the length of his criminal conduct because it was intermittent and not constant.  Petitioner argued that his length of incarceration was extremely short and that his Illinois medical license was likely to be reinstated soon.  Finally, Petitioner indicated that he engaged in significant cooperation with law enforcement concerning his codefendants.

On March 2, 2022, the Civil Remedies Division acknowledged receipt of the hearing request, notified the parties that I set a telephonic prehearing conference for March 22, 2022, and issued my Standing Prehearing Order (SPO).

At the March 22, 2022 telephonic prehearing conference, Petitioner’s counsel confirmed that Petitioner was not challenging the imposition of an exclusion but only the length of exclusion that exceeds the minimum five years.  Further, because Petitioner’s counsel indicated that he intended to submit a government document that was labeled as sensitive, I instructed counsel on the procedures for filing that document under seal.  A summary of the prehearing conference is contained in my March 22, 2022 Order Following Prehearing Conference and Setting Schedule for Prehearing Submissions.  See Departmental Appeals Board (DAB) E-File Document No. 4.

On May 2, 2022, the IG submitted a brief (IG Br.) together with four exhibits (IG Exs. 1-4).  The IG’s prehearing exchange was untimely; however, IG counsel provided a statement of good cause.  On June 7, 2022, Petitioner submitted a brief (P. Br.) and one exhibit (P. Ex. A).1  The IG waived filing a reply brief.

II.   Admission of Evidence and Decision on the Written Record

I find good cause to accept the untimely filing of the IG’s prehearing exchange.

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

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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 12; P. Br. at 7.  Therefore, I decide this case based on the written record.  See SPO ¶¶ 11, 16; see 42 C.F.R. § 1005.16(b).

III.   Sealing/Restricting Access to Petitioner Exhibit A

Petitioner Exhibit A is the “sensitive” government document that was discussed at the prehearing conference and referenced in Petitioner’s September 29, 2021 correspondence with the IG.  Petitioner Exhibit A is a compilation of documents.  Each page has been stamped on the top in red:  “SENSITIVE – SUBJECT TO PROTECTIVE ORDER.”

Although Petitioner failed to comply with my instructions concerning the procedure to seal documents, as specified on page 3 of my March 22, 2022 Order Following Prehearing Conference and Setting Schedule for Prehearing Submissions, Petitioner stated in his brief that Petitioner Exhibit A was “filed under seal” and that “these records are subject to a protective order, the reports should be destroyed if the reviewing party is not qualified to view them.”  P. Br. at 6. 

Petitioner’s statement concerning Petitioner Exhibit A appears to place the burden on me to determine if I am eligible to review the documents contained in that exhibit.  Because Petitioner did not submit the protective order related to these documents, I do not know to whom and under what circumstances these documents may be disclosed.  It was incumbent on Petitioner to ensure his disclosure of these documents was correct.

I note that two of the documents expressly state that they should not be disclosed unless the IG approves of the disclosure.  P. Ex. A at 1, 25.  In this proceeding, the IG neither objected to the admission of Petitioner Exhibit A nor disputed Petitioner’s request to seal that exhibit.  Both the IG and Petitioner are in a better position to know whether I can review the documents Petitioner submitted.  Neither indicated I may not do so.

Without additional reason to exclude Petitioner Exhibit A, I will retain Petitioner Exhibit A in the record.  However, I find good cause for restricting access to it.  See 42 C.F.R. § 1005.18(c) (“The record may be inspected and copied . . . by any person, unless otherwise ordered by the [administrative law judge] for good cause shown.”).  Therefore, I direct the Civil Remedies Division to take appropriate action so that the electronic filing system will indicate that Petitioner Exhibit A is under seal.

IV.   Issue

Petitioner concedes that he has been convicted of a crime and that the IG must exclude him from participation in Federal healthcare programs for at least five years.  P. Br. at 1; 42 U.S.C. § 1320a-7(a)(1).

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Therefore, the only remaining issue I may consider in this case is whether the length of the exclusion imposed by the IG is unreasonable.  42 C.F.R. § 1001.2007(a)(1)(ii).

V.   Jurisdiction

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

VI.   Findings of Fact

1. Petitioner was a licensed physician in the state of Illinois.  IG Ex. 4 at 1.
2. On an unknown date, a grand jury indicted Petitioner on the charge of “conspiracy to commit an offense against the United States, namely, making and receiving unlawful payments for patient referrals, in violation of [42 U.S.C. §§ 1320a-7b(b)(2)(A) and 1320a-7b(b)(1)(A)], all in violation of [18 U.S.C. § 371] (Count One).”  IG Ex. 2 at 1; see IG Ex. 3 at 1.
3. On September 14, 2020, Petitioner entered into a Plea Agreement with federal prosecutors in which he agreed to plead guilty to Count One in the Indictment.  IG Ex. 2.
4. In the Plea Agreement, Petitioner admitted to the following facts that served as the basis for the charge against him:

a.   “Beginning no later than approximately 2012 and continuing through on or about June 21, 2016, [Petitioner], a physician, knowingly joined a conspiracy with Michael Khomutov and Julia Khomutov, who agreed with [Petitioner] to offer and pay him money from Forum Health Care, Inc. (Forum), to induce him to refer Medicare beneficiaries to Forum for the furnishing of services for which payment may be made in whole or in part by Medicare.”  IG Ex. 2 at 2.

b.   “Forum provided home health care services to clients who purportedly were confined to their homes and, through its officers and agents, submitted claims to Medicare for reimbursement for home health care services purportedly provided to clients.”  IG Ex. 2 at 3.

c.   “From at least 2012 through on or about June 21, 2016, [Petitioner] accepted cash kickbacks from Julia Khomutov and Michael Khomutov in exchange for the referral of Medicare beneficiaries to Forum.  During this timeframe, [Petitioner] also certified patients as confined to the home and as needing skilled nursing treatments, knowing that they were not in fact confined to the home and did not in fact need skilled nursing treatments,

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and referred these patients to Forum and other home health care companies.  In addition to accepting kickbacks from the owners of Forum, [Petitioner] accepted cash kickbacks from the owners of two other home health care companies in exchange for referrals.”  IG Ex. 2 at 3.

d.   Petitioner was paid “approximately $300 cash in exchange for the referral of each Medicare beneficiary for a Start of Care cycle, and approximately $200 cash in exchange for the referral of each Medicare beneficiary for a re-certification.”  IG Ex. 2 at 4.

e.   “As a result of [Petitioner’s] conduct, between 2012 and on or about June 21, 2016, Julia and Michael Khomutov, through Forum, were paid approximately $1,584,596 from Medicare for the provision of home health care services for Medicare beneficiaries that [Petitioner] had referred to Forum in exchange for kickbacks, and [Petitioner] received approximately $30,000 in kickbacks.”  IG Ex. 2 at 4.

5. In the Plea Agreement, Petitioner agreed to fully and truthfully cooperate with federal prosecutors in any matter in which he is called upon to cooperate, which included complete and truthful information in any investigation and pre-trial preparation and complete and truthful testimony in any criminal, civil, or administrative proceeding.  IG Ex. 2 at 9.
6. In the Plea Agreement, Petitioner agreed to postpone his sentencing until all cooperation with federal prosecutors was completed.  At the time of sentencing, the federal prosecutors agreed to make known to the sentencing judge the extent of Petitioner’s cooperation.  It also stated:  “If the government determines that [Petitioner] has continued to provide full and truthful cooperation as required by this Agreement, then the government shall move the Court, pursuant to Guideline § 5K1.1, to depart downward from the low end of the applicable guideline range, and shall recommend a sentence that includes a term of imprisonment in the custody of the Bureau of Prisons of 50 percent of the low end of the applicable guideline range.”  IG Ex. 2 at 9.
7. In the Plea Agreement, Petitioner agreed to pay the Medicare program $30,000 in restitution.  IG Ex. 2 at 10.
8. A March 2, 2021 Judgment in Criminal Case indicated the following: 

a.   The District Court adjudged Petitioner guilty of Count 1 of the Indictment, i.e., violating “18 U.S.C. § 371  Conspiracy to Commit Offense Against the United States (Making & Receiving Unlawful Payments for Patient Referrals).”  IG Ex. 3 at 1.

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b.   The District Court sentenced Petitioner to imprisonment for 30 days.  IG Ex. 3 at 2.

c.   The District Court ordered Petitioner to pay restitution in the amount of $30,000 to the Centers for Medicare & Medicaid Services.  IG Ex. 3 at 7.

9. On March 3, 2021, the Illinois Department of Financial and Professional Regulation issued a Notice of Intent to Issue Indefinite Suspension Order related to his medical license based on Petitioner’s conviction in the District Court.  IG Ex. 4 at 3-14.
10. On April 8, 2021, the Illinois Department of Financial and Professional Regulation issued an Indefinite Suspension Order for Petitioner’s medical license.  IG Ex. 4 at 1-2.

VII.   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 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

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these proceedings that the IG had the burden of proving the existence of all alleged aggravating factors and that 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).

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 he 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 $1,584,596 loss to the Medicare program.  This amount is a significant factor weighing heavily in favor of a lengthy exclusion.

In the December 31, 2021 exclusion notice, the IG stated to Petitioner that “[y]our acts caused the financial loss of approximately $1,584,500 from the Medicare program.”  IG Ex. 1 at 1.

In support of this, the IG submitted the Plea Agreement in which Petitioner admitted the following:  “As a result of [Petitioner’s] conduct, between 2012 and on or about June 21, 2016, Julia and Michael Khomutov, through Forum, were paid approximately $1,584,596 from Medicare for the provision of home health care services for Medicare beneficiaries that [Petitioner] had referred to Forum in exchange for kickbacks, and [Petitioner] received approximately $30,000 in kickbacks.”  IG Ex. 2 at 4 (emphasis added).

Petitioner disagrees that the Plea Agreement supports the contention that Medicare’s loss was $1,584,596.  Rather, Petitioner argues in briefing the following:

This amount is a government estimate of the amount that [Petitioner’s] co-defendants were paid by Medicare for the patients referred by [Petitioner].  As many of the patients referred to Medicare by [Petitioner] were actually in need of skilled nursing treatment, the claimed financial loss by the Office of the [IG] is in excess of any actual financial loss to the Medicare program.  The high loss amount figure utilized in the plea agreement was the amount [Petitioner’s] co-defendants billed Medicare.  [Petitioner] was not involved in

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any billing to Medicare by the co-defendants.  His restitution amount of $30,000.00, was the approximate amount he received from his co-defendants for his referrals to Medicare.  In most instances, the patients he referred were qualified to receive the treatment provided.  In comparison, his co-defendants paid over $610,000, in restitution.  To hold Dr. Tsyrulnikov responsible for a financial loss of approximately $1,584,500.00, results in him being responsible for the actions of his co-defendants, actions that he had no knowledge of, or responsibility for.  The amount greatly inflates his responsibility as he never caused, nor intended to cause such a financial loss.  His limited involvement with the scheme is demonstrated by the $30,000, restitution imposed in case in comparison to the restitution on his co-defendants.

P. Br. at 2-3.

The regulation I must apply in this case states:

The acts resulting in the conviction, or similar acts, caused, or were intended to cause, a financial loss to a government agency or program or to one or more other entities of $50,000 or more.  (The entire amount of financial loss to such government agencies or programs or to other entities, including any amounts resulting from similar acts not adjudicated, will be considered regardless of whether full or partial restitution has been made).

42 C.F.R. § 1001.102(b)(1) (emphasis added).

Petitioner wants the loss amount to the Medicare program in this case to be limited to the money he received as part of the scheme to refer patients to Forum for home health services.  Petitioner indicates that the order to pay $30,000 in restitution reflected the total amount of those kickbacks.

However, while an order of restitution may provide proof of the loss to a government agency or program, restitution is not the only way to determine the loss amount.

Although the [DAB] “has long acknowledged that restitution is a measure of program loss,” Hussein Awada, M.D., DAB No. 2788, at 7 (2017), the [DAB] has never held that court-ordered restitution is the only measure of program loss for purposes of section 1001.102(b)(1).  Nor is there any

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requirement under section 1001.102(b)(1) that the amount of financial loss be adjudicated and established in the underlying criminal proceedings.  The plain language of section 1001.102(b)(1) does not limit application of this aggravating factor to cases where a restitution order has been entered or where the amount of program loss was fully adjudicated and established in court.

Shaun Thaxter, DAB No. 3053 at 29 (2021).

Rather, the question that must be considered is whether the evidence of record supports the IG’s finding of loss.  See Thaxter, DAB No. 3053 at 29.

In the present case, Petitioner admitted that he engaged in a conspiracy with the owners of a home health agency to refer to them patients who Petitioner certified as confined to the home and in need of skilled nursing treatments when those patients were not confined or not in need of treatments.  IG Ex. 2 at 3.  For this, Petitioner received approximately $300 for each referral and approximately $200 for each recertification for additional home health services.  IG Ex. 2 at 4.

This is significant because, as Petitioner agreed in the Plea Agreement, “[i]n order for Medicare to approve an episode of care, a physician was required to approve a patient’s plan of care and to certify that the patient was confined to his or her home . . . .  Subsequent cycles were referred to as ‘recertifications’ because a beneficiary was required to be recertified by a physician for each subsequent additional 60-day cycle of home health care.”  IG Ex. 2 at 3; see 42 U.S.C. §§ 1395f(a)(2)(c), 1395n(a)(2)(A), 1395x(m); 42 C.F.R. § 424.22.  Therefore, without Petitioner’s involvement, the owners of Forum could not have billed Medicare for its services.

The regulation requires that I determine the loss that Petitioner “caused” to the Medicare program and not merely the amount of money Petitioner received in illegal kickbacks.  Therefore, I reject Petitioner’s argument that the restitution that the District Court ordered him to pay reflects the amount of loss Petitioner caused to the Medicare program.

Petitioner also asserts that some of the referrals Petitioner made were legitimate, even if Petitioner received a kickback for them.  However, Petitioner admitted certifying Medicare beneficiaries for home health services “knowing that they were not in fact confined to the home and did not in fact need skilled nursing treatments, and referred these patients to Forum and other home health care companies.”  IG Ex. 2 at 3.  Petitioner’s assertions, in briefing, that some of those patients referred to Forum needed services is not evidence.  From this case’s record, there is no way of knowing if any of the referred beneficiaries met the medical requirements for home health services.  This is

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because the financial incentive that Petitioner received to make the referral to Forum calls into doubt all of Petitioner’s certifications. 

The record is clear that Forum was paid $1,584,596 by Medicare for beneficiaries referred by Petitioner.  IG Ex. 2 at 4.  Petitioner admitted in the Plea Agreement that this amount was paid “[a]s a result of [Petitioner’s] conduct . . . .”  IG Ex. 2 at 4.  This is sufficient evidence to conclude that Petitioner’s acts caused more than $50,000 in loss to the Medicare program based on his role as a physician who provided the requisite certifications to bill for those services.

The amount of loss is 31 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 at least three and a half years.  This length of time is a significant factor that strongly supports a lengthy exclusion.

In the December 31, 2021 exclusion notice, the IG stated that Petitioner’s acts that resulted in conviction, or similar acts, occurred from about 2012 to about 2016.  IG Ex. 1 at 1.

The IG submitted the Plea Agreement in support of this aggravating factor.  Petitioner admitted the following:  “As a result of [Petitioner’s] conduct, between 2012 and on or about June 21, 2016, Julia and Michael Khomutov, through Forum, were paid approximately $1,584,596 from Medicare for the provision of home health care services for Medicare beneficiaries that [Petitioner] had referred to Forum in exchange for kickbacks, and [Petitioner] received approximately $30,000 in kickbacks.”  IG Ex. 2 at 4.

In briefing, Petitioner concedes the general span of time that Petitioner engaged in the conspiracy with Forum’s owners.  However, Petitioner states that “[h]is recommendations were intermittent and he did not certify every patient for treatment.”  P. Br. at 3.

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).  This regulation does not require an excluded individual to have been constantly engaging in the criminal acts for which he was convicted.  It is only based on the length of time that the excluded individual engaged in the criminal acts.

Here, the length of time that Petitioner engaged in a criminal conspiracy against the Medicare program is at least 3.5 times longer than the minimum amount of time required

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for this to be considered as 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 30 days.  This sentence of incarceration provides additional support for a lengthy exclusion.

In the December 31, 2021 exclusion notice, the IG stated to Petitioner that the District Court sentenced Petitioner to 30 days of incarceration.  IG Ex. 1 at 1.

Petitioner does not dispute that the District Court sentenced Petitioner to imprisonment for 30 days.  IG Ex. 5 at 2.  However, Petitioner argues in briefing that 30 days is de minimus and should provide no support for an extension of the exclusion period.  P. Br. at 4.

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).  Therefore, any length of incarceration provides support for a longer exclusion.

In this case, Petitioner received a relatively short period of incarceration.  However, as Petitioner argues in relation to its mitigating factor (discussed below), the short length of incarceration is related to Petitioner’s cooperation and does not bear on the gravity of his crime.  P. Br. at 5; IG Ex. 2 at 9.  Absent cooperation, the parties estimated that the range of incarceration for Petitioner would have been 30-37 months.  IG Ex. 2 at 7.  In essence, Petitioner wants me to give him “double credit” for both his cooperation and the short length of his incarceration that was due to his cooperation.

The length of incarceration is brief.  However, considering the reason for its brevity, I conclude that even a 30-day period of imprisonment supports the IG’s lengthy exclusion.  Had Petitioner not cooperated, the record indicates Petitioner would have received much more than 30 days.  Below, I give full weight to Petitioner’s cooperation; however, for this aggravating factor, I will not disregard the sentence of 30 days of incarceration as urged by Petitioner.

5. The IG appropriately considered as an aggravating factor that Petitioner’s Illinois medical license was suspended based on his conviction.  This factor provides some support for the imposed length of exclusion.

In the December 31, 2021 exclusion notice, the IG stated that the Illinois Department of Financial and Professional Regulation suspended Petitioner’s physician and surgeon license.  IG Ex. 1 at 2.

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Petitioner does not dispute the suspension of his license; however, he argues that considering it as an aggravating factor amounts to cumulative punishment because all punishment imposed on Petitioner is based on the same conviction.  P. Br. at 4.

An exclusion is not punishment but a remedial action taken to protect federal health care programs from untrustworthy individuals.  Patel v. Thompson, 319 F.3d 1317, 1319-1320 (11th Cir. 2003).  The suspension of Petitioner’s medical license is an aggravating factor because it shows that his misconduct relates to his professional fitness.  However, I agree that this factor provides only limited support to the length of exclusion.

6. The IG concedes that a mitigating factor, i.e., cooperation with federal law enforcement, is present in this case.  This mitigating factor supports a reduction in the length of exclusion.

In the December 31, 2021 exclusion notice, the IG stated that they considered Petitioner’s cooperation with federal officials as a mitigating factor.  IG Ex. 1 at 2.  In briefing, the IG confirmed that Petitioner’s cooperation with authorities was considered as a mitigating factor when deciding the ten-year length of the exclusion.  IG Br. at 7-8, 11.

Petitioner, in briefing, makes a variety of factual claims as to the cooperation he provided to federal prosecutors.  Petitioner states that, upon his arrest he began cooperating with government investigators.  Petitioner repeatedly wore a device to record conversations with his co-defendants.  Petitioner says that prosecutors were happy with his assistance and that, based on his cooperation, his co-defendants were convicted, excluded from Medicare, and paid $610,000, in restitution.  Petitioner further states that federal prosecutors followed the Plea Agreements provisions and, under § 5K1.1 recommended a 50% downward departure from the applicable guideline range.  P. Br. at 5.

In addition, Petitioner states that he was a Confidential Human Source (CHS) from September 9, 2019 through October 21, 2021, and cooperated in multiple government investigations.  Petitioner wrote prescriptions to assist in other investigations and never refused to assist even when he believed his safety was in jeopardy.  Petitioner generally cited Petitioner Exhibit A as support.  P. Br. at 6.

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The regulatory provision for the relevant mitigating factor states:

(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) (emphasis added).

The IG concedes that this factor applies in this case.  Further, from the exhibits the IG submitted, one may infer that Petitioner received, during sentencing, a favorable statement from federal prosecutors concerning his cooperation because the actual length of his incarceration is significantly less than the estimated expected sentencing range Petitioner would have received if he did not cooperate.  See IG Ex. 2 at 7-9; IG Ex. 3 at 2.  Petitioner also provided documentation showing that he cooperated, ██████████████████████████████████████████████████████████
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Despite these documents, there is limited evidence that shows precisely what Petitioner’s cooperation achieved regarding convictions, exclusions, new investigations, or the imposition of civil money penalties.  Petitioner provides much detail in his brief, but a brief is not evidence.  However, I also consider it as significant that the IG conceded that Petitioner’s cooperation met the regulatory criteria as a mitigating factor and declined to file a reply brief to dispute Petitioner’s specific claims in his brief.  P. Br. at 7.  █████████████████████████████████████████████████████████
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While I credit Petitioner’s cooperation regarding his co-defendants, I cannot credit Petitioner’s cooperation as a mitigating factor as it relates ███████ referenced in Petitioner Exhibit A.  Although the documentation indicates cooperation, I have no evidence that Petitioner’s efforts resulted in criminal convictions, exclusions, imposition

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of a civil money penalties, or the opening of new investigations.  Unlike Petitioner’s cooperation regarding his co-defendants, there is no evidence to show that this cooperation can be considered as a mitigating factor.

Therefore, while I can only credit some of Petitioner’s cooperation with federal law enforcement authorities, I conclude that Petitioner’s creditable cooperation lends significant support for a reduction in the length of exclusion.

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

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).  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 ten-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 the qualitative assessment of the aggravating factors and the mitigating factor.  The loss to the Medicare program is very high and the length of time Petitioner engaged in criminal conduct is long.  As discussed above, these factors support a lengthy exclusion.  In further support is the sentence to incarceration and the suspension of a medical license.

Petitioner admitted that he “certified patients as confined to the home and as needing skilled nursing treatments, knowing that they were not in fact confined to the home and did not in fact need skilled nursing treatments, and referred these patients to Forum and other home health care companies.  In addition to accepting kickbacks from the owners of Forum, [Petitioner] accepted cash kickbacks from the owners of two other home health care companies in exchange for referrals.”  IG Ex. 2 at 3.  This statement in the Plea Agreement lays out clearly that Petitioner engaged in dishonest behavior to help others obtain fraudulent payments from the Medicare program.  In so doing, Petitioner helped to endanger the financial security of that program, which provides health coverage to the aged and disabled.  Such criminal conduct would normally be worthy of a very long exclusion.

However, Petitioner, after being arrested, cooperated with law enforcement authorities.  While the record is limited on provided specific details, there is little doubt that federal

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prosecutors thought his cooperation significant enough that they informed the District Court that Petitioner was due a substantial reduction in the sentence Petitioner should receive.

Despite Petitioner’s cooperation, I cannot overlook that Petitioner’s crime strikes at the heart of the Medicare program.  Physician orders often form the basis for the Medicare program to pay for health care items and services.  Physicians serve a gate keeper role to help ensure that health care items and services furnished to beneficiaries are medically necessary.  Therefore, physicians must be scrupulously honest.  Petitioner was not, and this negatively affects any assessment as to whether Petitioner is trustworthy to participate in federal health care programs. 

The length of time Petitioner engaged in dishonest behavior coupled with the loss he helped to cause the Medicare program are sufficient grounds for a very long exclusion. The ten-year length that the IG imposed reflects consideration of Petitioner’s cooperation.  While it is conceivable that Petitioner could have appropriately received a slightly shorter length of exclusion (especially if Petitioner had presented clear evidence of the results achived by his cooperation), I cannot conclude, based on the record before me, that ten years is outside the reasonable range based on the aggravating and mitigating factors in this case.

VII.   Conclusion

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

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Footnotes