Anthony Joseph Moschetto, D.O., DAB No. 3030 (2021)

FINAL DECISION ON REVIEW OF ADMINISTRATIVE LAW JUDGE DECISION

Petitioner Anthony Joseph Moschetto, D.O. appeals a decision by an Administrative Law Judge (ALJ) affirming the determination of the Inspector General (I.G.) to exclude Petitioner from participation in all federal health care programs under section 1128(a)(4) of the Social Security Act (Act) based on his conviction for a felony offense related to the unlawful manufacture, distribution, prescription, or dispensing of a controlled substance.  Anthony Joseph Moschetto, D.O., DAB CR5660 (2020) (ALJ Decision).  The ALJ also determined that excluding Petitioner for 15 years – ten years longer than the statutory minimum of five years – was not unreasonable based on the existence of three aggravating factors and the absence of any mitigating factors.  As more fully explained below, the Board affirms the ALJ Decision because it is supported by substantial evidence and is free of legal error.

Legal background

Section 1128(a)(4) of the Act requires the Secretary of Health and Human Services to exclude from participation in federal health care programs (as defined in section 1128B(f) of the Act) an individual who –

has been convicted for an offense which occurred after the date of the enactment of the Health Insurance Portability and Accountability Act of 1996, under Federal or State law, of a criminal offense consisting of a felony relating to the unlawful manufacture, distribution, prescription, or dispensing of a controlled substance. 

The I.G.’s regulation implementing this mandate is set out in 42 C.F.R. § 1001.101(d) (stating, in part, that the I.G. “will exclude any individual” who “[h]as been convicted, under Federal or State law, of a felony that occurred after August 21, 1996 relating to the

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unlawful manufacture, distribution, prescription or dispensing of a controlled substance, as defined under Federal or State law”).1

The mandatory minimum period of an exclusion imposed under section 1128(a) is five years.  Act § 1128(c)(3)(B); 42 C.F.R. § 1001.102(a).  That period may be lengthened based on the presence of one or more aggravating factors in 42 C.F.R. § 1001.102(b).  As relevant here, those factors include the following:  “[t]he sentence imposed by the court included incarceration”; the individual “has been convicted of other offenses besides those that formed the basis for the exclusion”; or the individual “has been the subject of any other adverse action by any Federal, State or local government agency or board if the adverse action is based on the same set of circumstances that serves as the basis for the imposition of the exclusion.”  42 C.F.R. § 1001.102(b)(5), (8), (9); 82 Fed. Reg. 4100, 4112 (Jan. 12, 2017) (revising, among other regulations, 42 C.F.R. § 1001.102(b)(8) and (9), effective February 13, 2017).  Only if any aggravating factor(s) in section 1001.102(b) is (or are) applied to lengthen the five-year exclusion period may the mitigating factors in section 1001.102(c) be considered to reduce the exclusion period to no less than five years.  Only the factors in section 1001.102(c) may be considered for mitigation.  42 C.F.R. § 1001.102(c); 82 Fed. Reg. at 4112 (revising section 1001.102(c)(1) effective February 13, 2017).

An individual is “convicted” of a criminal offense “when a judgment of conviction has been entered against the individual . . . by a Federal, State, or local court, regardless of whether there is an appeal pending or whether the judgment of conviction or other record relating to criminal conduct has been expunged” or “when a plea of guilty or nolo contendere by the individual . . . has been accepted by a Federal, State, or local court[.]”  Act § 1128(i)(1), (i)(3); see also 42 C.F.R. § 1001.2 (similarly defining “Convicted”). 

An excluded individual may request a hearing before an ALJ, but only on the issues of whether the I.G. had a basis for the exclusion and whether an exclusion longer than the required minimum period is unreasonable in light of any applicable aggravating and mitigating factors.  42 C.F.R. §§ 1001.2007(a), 1005.2(a).  A party dissatisfied with the ALJ’s decision may appeal it to the Board.  Id. § 1005.21(a).

Background

The following factual background is drawn from the ALJ Decision and the record of the ALJ proceedings.  We make no new factual findings.

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Petitioner was licensed to practice medicine in New York beginning in 1988.  I.G. Ex. 4, at 1, 4.  On or about October 28, 2015, a grand jury in the Supreme Court of the State of New York, Nassau County, returned a 77-count indictment charging Petitioner of committing, among other offenses, the “criminal sale of a prescription for a controlled substance, in violation of Section 220.65 of the Penal Law of the State of New York.”2   I.G. Ex. 3, at 3 (count 12) (emphasis removed).  The indictment charged that, on or about January 22, 2015, Petitioner, a “practitioner” as defined under section 3302 of the New York Public Health Law, “did knowingly and unlawfully sell a prescription for a controlled substance, other than in good faith in the course of his professional practice.”3  Id.  

Petitioner pleaded guilty to count 12 (and three others).  I.G. Ex. 2, at 1, 3.  Accepting the plea, the court convicted Petitioner on October 25, 2016.  Id. at 1, 2.  On January 31, 2017, the court sentenced Petitioner to two years of incarceration for the criminal sale of a prescription for a controlled substance on or about January 22, 2015 (count 12), five years of incarceration for criminal possession of a weapon in the first degree (count 71), an indeterminate term of incarceration ranging from one to three years for conspiracy in the fourth degree (count 74), and an indeterminate term of incarceration ranging from 16 months to four years for arson in the third degree (count 1).  Id. at 1, 3; I.G. Ex. 3, at 1, 3, 19-20, 20-21.  All sentences of incarceration were to run concurrently.  I.G. Ex. 2, at 1, 3.  Petitioner is currently serving a five-year term of incarceration based on the offense that carried the longest period of incarceration.  P. Br. to ALJ at 5-6; I.G. Ex. 2, at 1, 3.

On January 31, 2020, the I.G. issued a notice of exclusion informing Petitioner that, under section 1128(a)(4) of the Act, he would be excluded from participation in Medicare, Medicaid, and all federal health care programs, effective 20 days from the date of the letter, based on his “felony conviction . . . of a criminal offense related to the unlawful manufacture, distribution, prescription, or dispensing of a controlled substance.”  I.G. Ex. 1, at 1.  The I.G. further explained that Petitioner would be excluded for 15 years based on the presence of the following three aggravating factors:

1. The sentence imposed by the court included incarceration.  The court sentenced you to 5 years of incarceration.

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2. The individual . . . has been convicted of other offenses besides those that formed the basis for the exclusion.  You were also sentenced for Arson 3^rd Degree, Criminal Possession of a Dangerous Weapon, and Conspiracy 4^th Degree.
3. The individual . . . has been the subject of any other adverse action by any Federal, State, or local government agency or board if the adverse action is based on the same set of circumstances that serves as the basis for the imposition of the exclusion.  The State of New York accepted your voluntary surrender of your license to practice as a physician.  The New York Office of Medicaid Inspector General excluded you from participating in the New York State Medicaid Program.[4 ]

 Id. at 2; 42 C.F.R. § 1001.102(b)(5), (8), (9).

ALJ proceedings and decision

Petitioner requested a hearing before an ALJ.  The ALJ issued a decision based on the written record since neither Petitioner nor the I.G. offered the written direct testimony of any witness and, thus, there was no need to convene a hearing to permit cross-examination of any witness.  ALJ Decision at 3 (citing Lena Lasher, DAB No. 2800, at 4 (2017), aff’d, Lasher v. Dep’t of Health & Human Servs., 369 F. Supp. 3d 243 (D.D.C. 2019), aff’d, No. 19-5114 (D.C. Cir. Nov. 12, 2020)).

The ALJ made the following findings of fact and conclusions of law:

1. Petitioner’s conviction subjects him to a mandatory exclusion from all federal health care programs.
2. A 15-year minimum exclusion is warranted based on the presence of three aggravating factors and no mitigating factors.

Id. at 3, 6 (emphases removed).

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On her first finding and conclusion, the ALJ stated: 

Petitioner’s criminal conviction for criminal sale of a prescription for a controlled substance mandates exclusion pursuant to section 1128(a)(4).  An individual is “convicted” of a criminal offense “when a judgment of conviction has been entered against the individual” or when a guilty plea [“]has been accepted by a Federal, State, or local court.”  42 U.S.C. § 1320a-7(i)(1), (3) [Act § 1128(i)(1), (3)].  Section 1128(a)(4) mandates exclusion when an individual has a felony conviction relating to a controlled substance.  Petitioner’s conviction relates to the prescribing of a controlled substance, and that conviction is for a felony offense. . . .  Therefore, Petitioner’s guilty plea to Count Twelve of the indictment, which charged that he committed a felony offense involving the prescribing of a controlled substance, mandates exclusion pursuant to section 1128(a)(4) of the Act.

Id. at 5-6 (citations omitted; ALJ’s emphasis); id. at 4 (“Petitioner does not dispute that he was convicted of a felony offense relating to the prescription of a controlled substance occurring after August 21, 1996.”). 

On her finding and conclusion on the length of the exclusion, the ALJ determined that the I.G. established three aggravating factors under 42 C.F.R. § 1001.102(b)(5), (8) and (9).5   The ALJ wrote:

• “[T]he uncontroverted evidence demonstrates that Petitioner was sentenced to incarceration for his conviction for the criminal sale of a prescription for a controlled substance. . . .  The sentencing judge ordered that Petitioner be incarcerated for two years for that offense alone, and for a total term of five years.”  ALJ Decision at 6 (citation omitted).  
• “Petitioner pleaded guilty to, and was convicted of, three other felonies (arson in the third degree, criminal possession of a weapon in the first degree, and conspiracy in the fourth degree to commit assault in the first degree).”  Id.
• “Petitioner was subject to two other adverse actions” because (1) “the New York Office of the Inspector General excluded Petitioner from the state’s Medicaid program based on his criminal conviction that was related to the furnishing of or

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• billing for medical care, services, or supplies”; and (2) “Petitioner voluntarily surrendered his New York medical license, at which time he admitted guilt to a charge of professional misconduct that included specifications that he had a state criminal conviction and had fraudulently practiced medicine.”  Id. at 6-7.  The ALJ stated that, because the charge of professional misconduct was based on the same facts underlying the conviction and exclusion, the surrender of Petitioner’s medical license is properly considered an adverse action that is an aggravating factor in section 1001.102(b)(9).  Id. at 7.

The ALJ determined that a 15-year exclusion is “appropriate” based on the three aggravating factors, with no evidence of any mitigating factor under section 1001.102(c) to offset the effect of the aggravating factors.  ALJ Decision at 7.  Extending the mandatory minimum exclusion period by ten years, the ALJ stated, was “entirely reasonable, if not insufficiently lenient, based on the presence of several aggravating factors.”  Id. 

The ALJ found the evidence supporting the second aggravating factor (section 1001.102(b)(8)) most significant.  Id. at 7.  Petitioner was convicted of “several other serious crimes” – arson, conspiracy to cause serious injury to another person, and criminal possession of a dangerous weapon – “in connection with his conviction for the criminal sale of a prescription for a controlled substance.”  Id.  In pages 7 and 8 of her decision, the ALJ observed that the court’s certificate of disposition (I.G. Ex. 2), the indictment (I.G. Ex. 3), and the criminal complaint (I.G. Ex. 5) underscored the gravity of the crimes involving arson and conspiracy to cause serious injury to another person.  The ALJ noted:  

• Petitioner enlisted two co-defendants who “intentionally started a fire and damaged a building.”  ALJ Decision at 7-8 (quoting I.G. Ex. 5, at 1).  Petitioner provided the co-defendants a key to access the building, and also provided them a “financial payment.”  Id. at 8 (quoting I.G. Ex. 5, at 1).  A co-defendant “entered the building with the key with a duffel bag of gasoline which he ignited.”  Id. (quoting I.G. Ex. 5, at 1).
• In furtherance of conspiracy to commit assault on another person, Petitioner made “payments of currency to the co-conspirators” and “instruct[ed them on] . . . the means, methods and locations of where the victim should be assaulted.”  Id. (quoting I.G. Ex. 3, at 20-21).  

The seriousness of arson, the ALJ observed, was underscored by the court’s sentence, which included an order to pay restitution exceeding $80,000 for the resulting property damage.  ALJ Decision at 8; I.G. Ex. 2, at 1, 3.  Also, the ALJ noted, the court “imposed a lengthy 13-year order of protection for the victim of Petitioner’s crimes, meaning that the order of protection will continue for years after Petitioner presumably completes his

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five-year term of incarceration and five-year term of supervised post-release parole.”  Id.  The ALJ determined that these additional crimes “unquestionably evidence a high degree of untrustworthiness that warrants a lengthy exclusion based on this aggravating factor alone.”  ALJ Decision at 8; see also id.at 7 (quoting I.G.’s brief at 8, in stating that the second aggravating factor, “alone, could fully support the I.G.’s determination that a lengthy exclusion is necessary because Petitioner is ‘an untrustworthy individual whose conduct presents a substantial risk to the Federal health care programs[]’”).6  

The ALJ also considered the existence of the first and third aggravating factors, stating, “Not only was Petitioner sentenced to incarceration, but the same criminal conduct that led to his conviction formed the basis for the other adverse actions involving his loss of his medical license and his exclusion by the New York Medicaid program.”  Id. at 7 (citing 42 C.F.R. § 1001.102(b)(5), (9)).

The ALJ stated that the effective date of exclusion was February 20, 2020, in accordance with 42 C.F.R. § 1001.2002(b).  Id. at 1, 9.

Standard of review

We review a disputed issue of fact as to “whether the initial decision is supported by substantial evidence on the whole record.”  42 C.F.R. § 1005.21(h).  We review a disputed issue of law as to “whether the initial decision is erroneous.”  Id.  The term “substantial evidence” means “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.”  Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consol. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). 

Analysis

Before the Board, Petitioner acknowledges that, in 2016, he was convicted of a felony offense of the criminal sale of a prescription for a controlled substance, thus establishing a legal basis for exclusion under section 1128(a)(4) of the Act.  Informal Brief of Petitioner (P. Br.)7 at 1, 4-5 (not paginated).  Petitioner also:  (1) accepts that the law requires his exclusion for at least five years; (2) does not dispute the ALJ’s determination that the I.G. relied on three aggravating factors, set out in 42 C.F.R. § 1001.102(b)(5), (8)

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and (9); and (3) acknowledges that the ALJ properly considered his five-year incarceration as an aggravating factor under section 1001.102(b)(5).  Id. at 1, 3 n.4, 5. 

Petitioner asserts that extending the exclusion period to 15 years is “unfounded, misplaced, and in error,” and asks us to reduce that period to five years.  Id. at 1, 8; Reply Br. at 4 (not paginated).  Referring to the aggravating factors in 42 C.F.R. § 1001.102(b)(8) and (9), Petitioner raises arguments about his conviction and the underlying criminal proceedings (P. Br. at 5-6) that amount to an impermissible collateral attack or are altogether irrelevant to determining the reasonableness of the exclusion period.  He also raises arguments about the timing of the exclusion and the effective date of the exclusion and asks us to liberally construe his submissions because he is incarcerated and not represented by an attorney.  Id. at 6-8; Reply Br. at 2-3. 

The facts as found by the ALJ are supported by substantial evidence in the record.  They establish a qualifying felony conviction, for the criminal sale of a prescription for a controlled substance, for purposes of exclusion under section 1128(a)(4) of the Act, as well as the existence of three aggravating factors.  Given those established facts, and in the absence of evidence of any cognizable mitigating factor that could offset the effect of the aggravating factors, we find there is substantial evidence in the record supporting the ALJ’s conclusion that a 15-year exclusion period is reasonable.  We also explain that neither the exclusion statute nor the regulations mandate when the I.G. must impose an exclusion and that the ALJ correctly stated that Petitioner’s exclusion took effect 20 days after the date of the I.G.’s exclusion notice.       

I.   The ALJ’s determination that a 15-year exclusion period is reasonable is supported by substantial evidence and free of legal error.

An ALJ reviews de novo the duration of an exclusion period longer than the required minimum to determine whether it falls within a reasonable range based on any aggravating and mitigating factors and the circumstances underlying those factors.  Sushil Aniruddh Sheth, M.D., DAB No. 2491, at 5 (2012), appeal dismissed, Sheth v. Sebelius, No. 13-cv-00448 (D.D.C. Oct. 22, 2013), aff’d, Sheth v. Burwell, No. 14–5179, 2015 WL 3372286 (D.C. Cir. May 7, 2015).  The evaluation does not rest on the number of aggravating or mitigating factors or any rigid formula for weighing those factors, but 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.  Id. (citing cases).  An ALJ, however, may not substitute his or her judgment for that of the I.G. or determine a “better” exclusion period than set by the I.G., who “has ‘broad discretion’ in setting the length of an exclusion in a particular case, based on [the I.G.’s] ‘vast experience’ implementing exclusions.”  Id. (quoting Craig Richard Wilder, DAB No. 2416,at 8 (2011), and Paul D. Goldenheim, M.D., et al., DAB No. 2268, at 21 (2009), aff’d sub nom., Friedman v. Sebelius, 755 F. Supp. 2d 98 (D.D.C. 2010), rev’d on

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other grounds and remanded, 686 F.3d 813 (D.C. Cir. 2012) (for further consideration of length of exclusion), reh’g denied, 1:09-cv-02028 (Nov. 29, 2012)).

Here, the ALJ’s de novo evaluation of the three aggravating factors and her conclusion that those factors support an exclusion period of 15 years are supported by substantial evidence and free from legal error.  We fully agree with the ALJ’s analysis of those factors (summarized above) and, in particular, the ALJ’s assessment of the additional crimes of which Petitioner was convicted.  Petitioner’s convictions for arson and conspiracy to commit assault – crimes with the potential to cause serious injury or death – raise serious concerns about Petitioner’s trustworthiness and pose a significant risk to federal healthcare programs and program beneficiaries.  “The I.G.’s authority under section 1128 to exclude individuals or entities from participating in federal health care programs . . . is grounded in this remedial purpose:  to protect those programs and the beneficiaries those programs serve from untrustworthy individuals.”  Rehab. Ctr. at Hollywood Hills, LLC, DAB No. 3001, at 15 (2020) (and cited cases), appeal docketed, Rehab. Ctr. at Hollywood Hills, LLC v. Azar (S.D. Fla. July 7, 2020).   

The second aggravating factor established by a conviction for felony offenses other than the criminal sale of a prescription for a controlled substance, as significant as it is on its own, does not stand alone.  Petitioner was sentenced to a five-year term of incarceration.  This is another significant aggravating factor.  The Board has stated with respect to the aggravating factor of incarceration that periods of incarceration shorter than that imposed on Petitioner, some being significantly shorter, were substantial and supported lengthening the exclusion period.  See, e.g., Jason Hollady, M.D., a/k/a Jason Lynn Hollady, DAB No. 1855, at 12 (2002) (characterizing a nine-month incarceration, which included a period of work release, as “more than a token incarceration and, in that sense, relatively substantial”) (cited in ALJ Decision at 6); Spyros N. Panos, M.D.,DAB No. 2709, at 12 (2016) (incarceration for 54 months is “unquestionably a significant period”); Stacy Ann Battle, D.D.S., and Stacy Ann Battle, D.D.S., P.C.,DAB No. 1843, at 7 (2002) (placement in a halfway house constituted incarceration; four months in a halfway house, followed by four months of home confinement, justified lengthening the exclusion period). 

Given Petitioner’s conviction for multiple other felony crimes, including those with the potential to cause significant bodily injury or death, the imposition of a sentence including a significant period of incarceration, his exclusion from the state Medicaid program, and the licensing board’s order of surrender of his medical license, we agree with the ALJ that extending the exclusion period to 15 years is reasonable. 

As noted, when an aggravating factor in section 1001.102(b) is applied to lengthen the minimum five-year exclusion period, mitigating factors may be applied to reduce the period to no less than five years.  The mitigating factors that may be considered include only the following: 

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(1) In the case of an exclusion under § 1001.101(a), whether the individual . . . 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 government health care program due to the acts that resulted in the conviction, and similar acts, is less than $5,0008 ;

(2) The record in the criminal proceedings . . . 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; [and]

(3) The individual’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 [42 C.F.R.] part 1003 . . . . 

42 C.F.R. § 1001.102(c)(1)-(3).  The excluded individual (or entity) must identify and prove the existence of any mitigating factor.  See Rehab. Ctr. at Hollywood Hills at 15 n.9 (and cited cases).  Petitioner has not proven, much less asserted, the applicability or existence of any mitigating factor in section 1001.102(c) that possibly could offset the effect of the proven aggravating factors.  We agree with the ALJ that “Petitioner has not identified a factor that can warrant mitigation of an exclusion pursuant to 42 C.F.R. § 1001.102(c).”  ALJ Decision at 7.   

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II.   Petitioner’s arguments amount to an impermissible collateral attack on his conviction or are irrelevant to the issue of reasonableness of the exclusion period. 

In his brief submitted to the ALJ, Petitioner recounted the criminal proceedings and the circumstances leading up to his guilty plea and conviction.  The ALJ explained why none of the allegations in the brief “identify any of the enumerated mitigating factors listed in 42 C.F.R. § 1001.102(c).”  ALJ Decision at 5.  She also explained that, despite Petitioner’s argument to the effect that he did not write illegal prescriptions, his conviction on a guilty plea to a felony offense of criminal sale of a prescription for a controlled substance is “binding on these proceedings.”  Id. at 5 n.6; see also id. at 3 n.3 (“Petitioner is not permitted to collaterally attack his conviction in this forum.  42 C.F.R. § 1001.2007(d).”).

Petitioner simply avers the ALJ was wrong to reject his arguments as a collateral attack on the conviction, despite expressly acknowledging that he was convicted of a qualifying felony offense.  P. Br. at 1, 4, 5-6.  And, referring to the second aggravating factor (42 C.F.R. § 1001.102(b)(8)), Petitioner asserts that he was “improperly convicted” under an unfair process, and that the ALJ wrongly disregarded his “truthful” explanation of the circumstances underlying the conviction, including that his two co-defendants were, Petitioner says, found not guilty at trial.9   Id. at 5-6.  According to Petitioner, the ALJ erred in lengthening the exclusion period based on the evidence of conviction of offenses other than that on which the exclusion is based because the co-defendants who were involved in the commission of the same offenses were acquitted.  Id.

Petitioner apparently believes that the criminal justice process under which he was convicted is not fair.  Petitioner’s arguments about the criminal proceedings and how the co-defendants fared in those proceedings suggest a belief that somehow the second aggravating factor was unfounded or should carry less weight for purposes of determining the reasonableness of the extended exclusion period for Petitioner because the co-defendants, according to Petitioner, were acquitted of the same offenses.  But neither that belief, nor the outcome of the criminal proceedings as to the co-defendants, has any bearing on the issue of the reasonableness of the extended exclusion period based on the application of the aggravating factor in section 1001.102(b)(8).  What is relevant is that Petitioner was convicted of offenses other than the criminal sale of a prescription for a controlled substance.  There is no dispute that he was so convicted.

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Furthermore, although Petitioner couches his arguments in the context of his dispute about the reasonableness of the extended exclusion period, asserting that the ALJ failed to consider them as a mitigating factor, the arguments nevertheless amount to an impermissible collateral attack on the conviction on which the exclusion is based.  See 42 C.F.R. § 1001.2007(d).  The ALJ correctly determined that when, as here, the I.G. exclusion is derivative of a qualifying conviction, the basis for the conviction is not reviewable in the I.G. exclusion proceedings.  See, e.g., Delores L. Knight, DAB No. 2945, at 9 (2019) (when the I.G. excludes an individual based on the fact of the criminal conviction, the conviction, and the basis for the conviction, are not reviewable and the excluded individual may not collaterally attack the conviction in an I.G. exclusion appeal) (and cited cases); Valentine Okonkwo, DAB No. 2832, at 4 (2017) (felony conviction was “settled” in court and petitioner may not relitigate it before the ALJ and the Board to challenge the section 1128(a)(4) exclusion) (citing cases); Frank R. Pennington, M.D., DAB No. 1786, at 4 (2001) (felony possession of a controlled substance with intent to distribute, to which petitioner pleaded guilty, “on its face includes all the elements required [for exclusion under] section 1128(a)(4)”), aff’d, Pennington v. Thompson, 249 F. Supp. 2d 931 (W.D. Tenn. 2003).  The Board has rejected an excluded individual’s attempt to rely on extraneous facts about the conviction and the underlying criminal proceedings to reduce an exclusion period lengthened by the application of aggravating factors as a collateral attack prohibited by 42 C.F.R. § 1001.2007(d).  See Laura Leyva, DAB No. 2704, at 7-8 (2016), aff’d, Leyva v. Price, No. 8:16-CV-1986, 2017 WL 2880125 (M.D. Fla. Apr. 24, 2017).

With respect to the third aggravating factor in section 1001.102(b)(9), Petitioner asserts that the I.G.’s “proffer of evidence” on his exclusion from the New York Medicaid program and the surrender of his medical license was “disingenuous” because the I.G. failed to “discover[ ]” information about his May 2017 exclusion from the Medicaid program and his February 2017 surrender of his medical license until much later.  P. Br. at 6.  This is simply irrelevant for purposes of this aggravating factor.  The relevant question is whether Petitioner was the subject of any other adverse action by any federal, state or local government agency or board if the adverse action is based on the same circumstances that serve as the basis for the imposition of the exclusion.  There is no dispute that he was.  I.G. Exs. 4, 8.  

III.   Neither the statute nor the regulations mandate when the I.G. must impose an exclusion; the ALJ correctly stated that the exclusion took effect 20 days after the date of the I.G.’s exclusion notice. 

Petitioner complains that the I.G. did not exclude him until January 2020, around three years after he was excluded from the Medicaid program and after he surrendered his medical license.  P. Br. at 6-7.  Petitioner asks, “Why the delay?”  Id. at 7.  He posits that the timing of the I.G.’s action indicates an “obvious,” “fraudulent,” “unconscionable and unethical” attempt to manipulate “the statute of limitations in order to postpone the

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effective date of” his exclusion to “get[ ] more time out of him.”  Id.  He asks us to sanction the I.G. for the delay “tactics,” used as an “aggravating factor” against him.  Id.  He states that “[w]hether the commencement of” the “exclusion beginning on February 20, 2020 was reasonable” is a legal issue for Board resolution.  Id. at 2.

Petitioner’s arguments suggest a mistaken belief that the reasonableness of the I.G.’s exclusion somehow depends on the timing and development of state administrative proceedings arising from or related to his qualifying felony conviction.  Federal law, section 1128(a)(4), mandated Petitioner’s exclusion based on his 2016 felony conviction.  Although it is evident that the state administrative proceedings that culminated in Petitioner’s exclusion from the state Medicaid program and the surrender of his medical license are rooted in the conviction (as is the I.G.’s exclusion), those parallel developments are relevant here only for purposes of assessing the reasonableness of extending the mandatory minimum five-year exclusion period because they establish the aggravating factor in section 1001.102(b)(9). 

Neither the federal exclusion statute, nor the implementing regulations, mandate when the I.G. must exercise the authority to exclude an individual under section 1128(a)(4).  See Kami L. Purvis, DAB No. 2990, at 6 (2020) (“Neither the ALJ nor the Board has the authority to review the timing of the I.G.’s imposition of an exclusion [under section 1128(a)(4)], and nothing in the statute or regulations precludes the I.G. from imposing the exclusion when it did.”); Shaikh M. Hasan, M.D., DAB No. 2648, at 9 (2015) (“[T]he ALJ correctly determined that she had no authority to review the timing of the I.G.’s determination to impose an exclusion [under section 1128(a)(4)] or to change the starting date of the exclusion.”) (and cited authorities), aff’d, Hasan v. Sec’y of Health & Human Servs., No. 1:15-CV-04687 (E.D.N.Y. July 12, 2017). 

Furthermore, the effective date of an exclusion is determined by regulation and may not be adjusted at the discretion of an ALJ or the Board.  Act § 1128(c)(1) (an exclusion under section 1128(a) “shall be effective at such time and upon such reasonable notice . . . as may be specified in regulations . . .”); 42 C.F.R. § 1001.2002(b) (“The exclusion will be effective 20 days from the date of the notice.”); Hasan, DAB No. 2648, at 9 (the ALJ correctly determined she had no authority to change the effective date of the exclusion; nor does the Board) (citing authorities).  The ALJ correctly stated that Petitioner’s exclusion took effect on February 20, 2020, 20 days after the date of the I.G.’s January 31, 2020 notice of exclusion.  ALJ Decision at 1, 9 (citing 42 C.F.R. §§ 1001.2002(b), 1005.4(c)(1)).

To the extent Petitioner’s assertions about the timing of the I.G.’s exclusion may be viewed as a generalized complaint about the I.G.’s operations, it is not the Board’s role to oversee, or comment on, the I.G.’s operations.  We certainly cannot “sanction” the I.G.  Our task (and the ALJ’s) on Petitioner’s appeal is to apply the exclusion law and regulations to the facts in his case and decide the issues properly before us.  See Edwin L.

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Fuentes, DAB No. 2988, at 16 (2020), appeal docketed, Fuentes v. Azar, No. 4:20-cv-00026 (W.D. Va. May 4, 2020). 

On the allegedly improper motive behind the I.G.’s imposition of Petitioner’s exclusion in January 2020, we comment that the delay Petitioner perceives as having been intentional and designed to be punitive is not a cognizable mitigating factor that could be considered to reduce the exclusion period.  As explained, the law imposes no requirement on when the I.G. may impose a section 1128(a)(4) exclusion; the effective date of an exclusion is determined by operation of authority to which we (and the ALJ) are bound; and only the mitigating factors in section 1001.102(c) may be considered for possible reduction of an exclusion period longer than the mandatory minimum period. 

IV.   We have considered the full appeal record giving due consideration to Petitioner’s status as a pro se litigant who is incarcerated.      

Petitioner appears pro se before the Board.  He states that, navigating the appeal process on his own, he does “not really know[ ] what he is doing” and finds himself under “legally vulnerable circumstances.”  P. Br. at 7.  He also says he lacks access to the online database of Board decisions because he is incarcerated, but believes that, had he access to the database, he would “most assuredly find myriad” decisions that support his claim that the exclusion period is “excessive.”  Id. at 7, 8.  Relying on Erickson v. Pardus, 551 U.S. 89 (2007) and Abbas v. Dixon, 480 F.3d 636 (2d Cir. 2007), he asks us to “liberally construe” his submissions.  Id. at 7-8 (quoting language from both decisions, neither of which involves an appeal of an I.G. exclusion).  He also asks that, should we decide not to reduce the exclusion period to five years, we “adjourn this proceeding until” he is “released from prison and . . . able to retain counsel and/or appear at [the Board’s] convenience.”  Id. at 8; Reply Br. at 4 (similar request).

We have carefully considered Petitioner’s arguments and addressed them bearing in mind that Petitioner is incarcerated and is representing himself before the Board.  We have done so here, as we have done to the extent appropriate in prior exclusion cases appealed by pro se petitioners.  See, e.g.,Gena C. Randolph, DAB No. 2526, at 4 (2013) (determining pro se petitioner’s arguments to the ALJ were “sufficiently ambiguous” to be considered related to an argument she made on appeal; rejecting I.G.’s assertion that petitioner was precluded from making the argument before the Board under 42 C.F.R. § 1005.21(e)); Monica Ferguson, DAB No. 3013, at 5 n.4 (2020) (stating that the Board was addressing the pro se petitioner’s lengthy, unorganized, repetitive, and unclear submissions “as best as we can discern them”).  We have waived for Petitioner the Board’s requirement that parties file appeal submissions electronically, through DAB E-File; served Petitioner by certified mail, allowing for additional time for the delivery of mail to, and receipt of mail from, Petitioner; extended the time for Petitioner to file his opening brief; and permitted him an opportunity to file a reply brief.  We kept the record open for sufficient additional time for the delivery of Petitioner’s reply brief, which we

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have accepted, entered into the electronic record of this case in DAB E-File (as we have with all other submissions from Petitioner to the Board), and considered.

We decline to adjourn or suspend these proceedings based on Petitioner’s untimely request that he be allowed additional time to retain counsel at some unspecified time after he is released from prison in the Spring of 2021.  Nor would we reopen briefing, which is complete, even if Petitioner were to retain counsel at this late stage.  Petitioner made no showing that, due to his incarceration, he was unable to obtain counsel for this appeal (or the ALJ proceeding) or that he ever attempted to do so.  We note that Petitioner previously requested, and the Board granted, an extension of time to file his appeal.  In Petitioner’s request, received by the Board on August 28, 2020, Petitioner never stated that he needed additional time to retain counsel; rather, he indicated that he intended to handle the appeal himself and needed more time to access the law library. 

We have also carefully reviewed the record below bearing in mind that Petitioner was incarcerated during the ALJ proceedings and appeared pro se before the ALJ.  Early in the appeal process, the ALJ informed Petitioner of his right to obtain attorney representation at his own expense, and put him on notice that, regardless of whether he has attorney representation, he must, as the I.G. must, abide by all procedures set by the ALJ.  Standing pre-hearing order at ¶¶ 2, 3; March 12, 2020 order following pre-hearing conference at 1.  Petitioner proceeded with his appeal pro se, though he expressed his belief that his ability to defend the exclusion was limited.  Petitioner’s letter accompanying his June 2020 brief to the ALJ (CRD docket entry 9) (stating that he had no access to a computer, photocopy machine, or typewriter because the facility in which he was incarcerated was “shut down,” which we understand to be a reference to measures taken during the COVID-19 pandemic). 

The record indicates that the ALJ, aware that Petitioner was incarcerated and representing himself on appeal, made certain accommodations for him.  The ALJ gave Petitioner a form brief (setting out specific questions, the answers to which would inform her decision on the issues before her) with her March 12, 2020 order following pre-hearing conference.10   In her standing pre-hearing order, paragraph 3, the ALJ directed the I.G. to provide Petitioner with copies of any Board decisions cited in the I.G.’s submissions.11

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The ALJ also waived the usual requirement to submit all filings electronically, through DAB E-File.  Feb. 21, 2020 acknowledgment of receipt of request for hearing and order; standing pre-hearing order (¶¶ 14, 15); March 12, 2020 order following pre-hearing conference at 2.12   We view the ALJ’s actions as having been intended to afford Petitioner a fair process.  See Louis Mathews, DAB No. 1574, at 9-10 (1996) (recognizing that, to afford a “fair and impartial” proceeding consistent with 42 C.F.R. § 1005.4(a), “pro se petitioners should be accorded some extra measure of consideration in developing a complete record”); George Iturralde, M.D., DAB No. 1374, at 13-14 (1992) (noting that a pro se petitioner challenging a section 1128(b)(5) exclusion was given wide latitude to present evidence about his culpability during the ALJ hearing).

During the ALJ proceedings, Petitioner was in the same position as he is now – incarcerated and without attorney representation on his appeal of the exclusion.  Had Petitioner believed he could not fully and effectively pursue an appeal without attorney representation, he was not precluded from asking the ALJ for additional time to retain an attorney.  He did not do so. 

As explained, we agree with the ALJ that three aggravating factors have been established and amply support extending the mandatory minimum exclusion period by ten years.  Having carefully considered the record, we further note there is no suggestion as to the applicability or existence of any mitigating factor in section 1001.102(c)(1)-(3).  Whether proceeding pro se or represented by an attorney, Petitioner was required to show that the ALJ Decision lacked substantial evidence or was based on an error of law.  Petitioner failed to meet that burden.13

Lastly, we note that an excluded individual appealing an ALJ’s decision to the Board is not entitled to appear personally before the Board.  42 C.F.R. § 1005.21(d) (“There is no right to appear personally before the [Board] . . . .”).  Nor do we find that Petitioner’s personal appearance before the Board is necessary for us to decide this appeal.  

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Conclusion

We affirm the ALJ Decision.

1. We apply the regulations that were in effect when the I.G. issued her determination to exclude Petitioner.  See Ishtiaq A. Malik, M.D., DAB No. 2962, at 1 n.2 (2019), appeal docketed, Malik v. United States Dep’t of Health & Human Servs., No. 1:20-CV-00091 (E.D. Va. Jan. 28, 2020).
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2. Section 220.65 of the New York Penal Law provides, in part, “Criminal sale of a prescription for a controlled substance or of a controlled substance by a practitioner or pharmacist is a class C felony.”
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3. The indictment also charged Petitioner with the criminal sale of a prescription for a controlled substance on additional dates.  I.G. Ex. 3, at 4-14 (counts 13-50), 24 (indicting for 39 counts of “criminal sale of a prescription for a controlled substance”) (emphasis removed)).
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4. Before the New York State Board for Professional Medical Conduct, in order to resolve charges of professional misconduct brought against him, Petitioner applied to surrender his medical license and “admit[ted] guilt” to “professional misconduct” based on his conviction and fraudulent practice (i.e., criminal sale of a prescription for a controlled substance).  I.G. Ex. 4, at 1, 4-6, 10-11.  (I.G. exhibit 4 contains 11 pages as indicated in the I.G.’s exhibit list, but only the first nine pages are marked with page numbers.)  The New York State Board for Professional Medical Conduct entered a surrender order, accepting Petitioner’s surrender of his medical license and striking his name from the roster of physicians.  Id. at 11.  The New York State Office of the Medicaid Inspector General excluded Petitioner based on his criminal conviction.  I.G. Ex. 8.
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5. Early in the appeal process, the ALJ notified the parties that the I.G. must bear the burden to prove the existence of any asserted section 1001.102(b) aggravating factor by a preponderance of the evidence, and that Petitioner must bear the burden to prove any affirmative defense or section 1001.102(c) mitigating factor by a preponderance of the evidence.  Standing pre-hearing order at 2-3, ¶ 4; 42 C.F.R. § 1005.15(c), (d).
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6. The ALJ did not address the criminal possession of a dangerous weapon other than to note that this offense involved the criminal possession of ten or more firearms and yielded a five-year term of incarceration.  ALJ Decision at 8 n.7 (citing I.G. Exs. 2, at 1, 3, and 3, at 19-20).
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7. Along with his brief, Petitioner filed duplicate copies of materials that are in the record of the ALJ proceedings.  Petitioner need not submit to the Board copies of materials that already are in the record.  However, the materials Petitioner submitted to us will be retained as a part of the administrative record of this case.
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8. Section 1001.102(c)(1) was revised effective February 13, 2017.  82 Fed. Reg. at 4112.  We cite to the revised provision here.  The I.G.’s response brief filed with the Board, page 9, identified the mitigating factors in section 1001.102(c)(1)-(3), but erroneously referred to a prior version of section 1001.102(c)(1).  But we see nothing in the record suggesting the applicability or existence of any mitigating factor in section 1001.102(c) that was in effect when the I.G. determined to exclude Petitioner.
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9. The record does not address the disposition of any criminal charges against the co-defendants.  For purposes of our discussion, we accept Petitioner’s accounting about the co-defendants having been acquitted.  However, how the co-defendants fared in the criminal proceedings is not relevant to the applicability or assessment of the section 1001.102(b)(8) aggravating factor in Petitioner’s case.
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10. Administrative Law Judges of the Civil Remedies Division routinely provide form briefs to excluded individuals and the I.G. in exclusion cases.  Nevertheless, a form brief with specific questions to be answered could be particularly helpful to a pro se litigant with no legal training.
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11. The I.G. informs us that Petitioner was provided copies of all authorities cited in the I.G.’s briefs submitted to the ALJ and to the Board.  See Revised Certificate of Service of the I.G.’s brief to the ALJ; I.G.’s response brief to the Board, pages 11-12 and certificate of service.  Petitioner does not deny that the I.G. provided him with these materials.  See Reply Br. at 3.
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12. By notice dated March 18, 2020, the ALJ informed Petitioner that there likely would be a delay in case processing with respect to filings or issuances by U.S. mail due to the COVID-19 pandemic, but that his appeal would be processed as quickly as possible once mail operations resumed.
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13. We considered Petitioner’s argument that if he had online access to the Board’s prior decisions, he “would most assuredly find myriad cases” holding a 15-year exclusion “excessive” in circumstances such as his and suggesting that such a discovery would be dispositive.  P. Br. at 8.  We disagree.  “[T]he assessment of aggravating factors (and mitigating factors, if any), is first and foremost case-specific.”  Eugene Goldman, M.D., DAB No. 2635, at 11 (2015).  The Board has long held that case comparisons “are of limited value and ultimately are not dispositive on the question of reasonableness of an exclusion period in a given case.”  Id.  Here, the ALJ properly considered the three aggravating factors (and no mitigating factors) on which the I.G. relied to exclude Petitioner for fifteen years and appropriately weighed all facts and circumstances in Petitioner’s case.  We conclude that the ALJ’s determination is supported by substantial evidence and free of legal error, and we are aware of no Board precedent that would alter this conclusion.
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