Bernadette Iguh, M.D., DAB CR5985 (2021)

DECISION

The Inspector General of the United States Department of Health and Human Services (the IG) excluded Petitioner, Bernadette Iguh, M.D., from participation in Medicare, Medicaid, and all other federal health care programs for 10 years pursuant to section 1128(a)(1) of the Social Security Act (Act) (42 U.S.C. § 1320a-7(a)(1)).  Petitioner challenges the length of the exclusion, but she does not contest the imposition of the exclusion.  For the reasons stated below, I conclude the IG had a basis for excluding her from program participation, and that the 10-year exclusion period is not unreasonable.  I affirm the IG's exclusion determination.

I.      Procedural History

The IG issued notice to Petitioner on May 28, 2021 that she was being excluded from participation in Medicare, Medicaid, and all federal health care programs for 10 years.  IG Ex. 1 at 1.  The IG cited section 1128(a)(1) of the Act, which mandates exclusion

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when an individual is convicted of a criminal offense related to the delivery of an item or service under Medicare or a State health care program.  Id.  Petitioner timely requested a hearing, and I was designated to hear and decide this case.

I conducted a pre-hearing telephone conference on July 15, 2021, the substance of which I memorialized in my July 21, 2021 Order (Summary Order), including a schedule for submission of arguments and evidence by the parties.  The IG submitted a brief (IG Br.), a reply brief (IG Reply), and five exhibits (IG Exs. 1-5), while Petitioner submitted a brief (P. Br.), and three exhibits (P. Exs. 1-3).  Due to the docket associated with Petitioner’s underlying conviction largely remaining under seal, as well as other relevant cases to the issues in this matter, Petitioner’s three exhibits include redacted versions subject to public release and unredacted versions that are filed under seal in this matter and are not to be disclosed. 

II.    Exhibits and Decision on the Record

Petitioner’s Unopposed Motion to File Redacted Documents is granted.  The IG also does not object to Petitioner’s proposed exhibits.  I therefore admit Petitioner Exhibits 1 through 3 into evidence.

The IG has moved to “withdraw, seal, or otherwise exclude IG Exhibit 3 from the record as the document is under Federal seal.”  I grant the withdrawal of Exhibit 3 from the record.  Additionally, Petitioner objects to IG Exhibits 1, 2, and 4.  With respect to these three exhibits, Petitioner argues that they are unauthenticated public documents and therefore are unsupported hearsay pursuant to Federal Rule of Evidence 802 and should be excluded.  Exhibit 1 is the IG’s Notice of Exclusion, Exhibit 2 is the Southern District of Texas Grand Jury Indictment of Petitioner, and Exhibit 4 is the Southern District of Texas Judgment against Petitioner – none of which is otherwise contested by Petitioner.  The IG argues that these documents are self-authenticating under Federal Rule of Evidence 902.  Regardless, my decision is not bound by the Federal Rules of Evidence, and I find that these exhibits are relevant and material to the proceeding.  42 C.F.R. § 1005.17(b), (c).  With respect to IG Exhibit 2, Petitioner also objects that the document is under seal and therefore admitting it in this proceeding would violate the District Court’s seal.  The IG has demonstrated that IG Exhibit 2 is no longer under seal and is publicly available.  IG Reply at 3-4; IG Ex. 5.  I therefore overrule these objections and admit IG Exhibits 1-2 and 4-5 into evidence.

Neither party indicated a hearing was necessary in this matter.  P. Br. at 1; IG Br. at 11.  I therefore proceed to a decision based on the record before me.  See Civ. Remedies Div. P. § 19(d).

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III.   Issues

Whether the IG has a basis for excluding Petitioner from participating in Medicare, Medicaid, and all other federal health care programs and, if so, whether the 10-year exclusion imposed by the IG is unreasonable.  See 42 C.F.R. § 1001.2007(a)(1).

IV.    Findings of Fact, Conclusions of Law, and Analysis

My conclusions of law are set forth in bold and followed by pertinent findings of fact and analysis.

A.  I have jurisdiction to hear this case.

Petitioner timely requested a hearing.  I therefore have jurisdiction to hear and decide this case.  See 42 C.F.R. §§ 1001.2007(a)(1)-(2), 1005.2(a); see also 42 U.S.C. § 1320a-7(f)(1).

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

The IG must exclude an individual from participation in federal health care programs if the individual was convicted of a criminal offense related to the delivery of a health care item or service under the Medicare program.  42 U.S.C. § 1320a-7(a)(1).  Here, Petitioner concedes she was convicted of an offense requiring exclusion.  P. Br. at 1.  Nevertheless, because the nature and circumstances of her conviction are relevant to the outcome here, I note them for the record.

On March 5, 2021, the Southern District of Texas entered judgment against Petitioner as to one count of health care fraud conspiracy in violation of 18 U.S.C. § 1349.  IG Ex. 4 at 1.  On October 3, 2017, Petitioner had pleaded guilty to that charge following her indictment on February 8, 2017 for her role in submitting fraudulent certifications to Medicare for home health services.  IG Ex. 2.  Petitioner’s role in the scheme was to certify that beneficiaries were homebound and that home health services were medically necessary regardless of whether the patients needed home health.  Id. at 4-7.  Petitioner was paid for each certification by the owner of the home health agency.  Id.  Petitioner was paid at least $17,800 in kickbacks from August 2009 through July 2013 for her false certifications.  Id. at 7.  As a result of Petitioner’s false certifications, Medicare paid about $884,585 to the home health agency.  Id.

The facts pertaining to Petitioner’s conviction clearly establish that Petitioner was convicted of a criminal offense related to the delivery of a health care item or service under the Medicare program requiring exclusion under 42 U.S.C. § 1320a-7(a)(1).

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See Travers v. Shalala, 20 F.3d 993, 998 (9th Cir. 1994) (affirming conviction for filing fraudulent claims with the Medicaid program is “a program‑related offense” and “such financial misconduct is exactly what Congress sought to discourage” through imposing exclusions).

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

Because I have concluded that a basis exists to exclude Petitioner pursuant to 42 U.S.C. § 1320a-7(a)(1), she must be excluded for a minimum of five years.  42 U.S.C. § 1320a-7(c)(3)(B).

D.  The IG has established three aggravating factors and considered one mitigating factor which together justify exclusion beyond the five-year statutory minimum.

Of the three aggravating factors identified by the IG, Petitioner disagrees only as to the weight assigned to them and not as to the appropriateness of their application.  P. Br. at 4-5.  I have nevertheless reviewed the application of all three aggravating factors as the IG bears the burden of establishing they are warranted.  42 C.F.R. § 1005.15(c).  Petitioner also argues that the IG failed to properly apply the mitigating factor of cooperation.  P. Br. at 5-7.  Petitioner has the burden of proving mitigating factors, and I analyze the application of this factor below.  42 C.F.R. § 1005.15(c). 

1.  The IG established financial loss to a government program of $50,000 or more, as required by 42 C.F.R. § 1001.102(b)(1).

Petitioner’s criminal conduct resulted in a $884,585 loss by the U.S. Department of Health and Human Services, for which she was responsible.  IG Ex. 2 at 7; IG Ex. 4 at 5.  The District Court ordered her to pay restitution in this amount to the Medicare Trust Fund as part of her sentence.  IG Ex. 4 at 5.  The Departmental Appeals Board (Board) has recognized that restitution is an appropriate measure to demonstrate program loss.  See Summit S. Shah, M.D., DAB No. 2836 at 8 (2017) (citations omitted).  The IG has established Petitioner was responsible for considerably more than $50,000 in loss to the Medicare program. 

2.  The IG established that Petitioner's conviction arose from acts that lasted for a period of one year or more, as required by 42 C.F.R. § 1001.102(b)(2).

Petitioner’s role in submitting fraudulent certifications to Medicare for home health services, which resulted in her health care fraud conspiracy conviction that forms the basis for the IG's exclusion action against her, lasted from approximately August 2009 to

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July 2013.  IG Ex. 2 at 7.  The IG has established Petitioner's criminal conduct occurred for over one year.

3.  The IG established Petitioner was incarcerated as part of her sentence as required by 42 C.F.R. § 1001.102(b)(5).

As a result of the plea agreement Petitioner made with the government, the District Court rendered judgment against her.  IG Ex. 4.  As part of that judgment, the District Court imposed a sentence of time served and 15 months’ home detention for Petitioner's admitted criminal conduct.  Id. at 2-4.  The regulations define incarceration to include “any type of confinement with or without supervised release, including, but not limited to, community confinement, house arrest and home detention.”  42 C.F.R. § 1001.2.  The IG has established Petitioner's sentence included a period of incarceration.

4.  The IG properly applied one mitigating factor.

Here, the IG concedes the presence of one of the three mitigating factors permitted by the regulations, namely cooperation with federal or state officials resulting in additional action taken against other individuals to protect the integrity of the Medicare program.  IG Br. at 9-10; IG Ex. 1; 42 C.F.R. § 1001.102(c)(3).1    Petitioner, however, argues that the IG did not meaningfully consider facts relevant to her cooperation, because the IG acknowledges that “the docket for Petitioner’s underlying case showed no publicly accessible documentation regarding the cooperation.”  P. Br at 7 (quoting IG Br. at 10).  Though Petitioner’s plea agreement and many other elements of her case remain under seal, the IG acknowledged in its opening brief a number of cooperative elements she considered in determining that the mitigating factor was applicable to the period of Petitioner’s exclusion.  IG Br. at 9-10.

Petitioner does not argue application of the other two mitigating factors to be appropriate here.  I therefore find the IG properly applied one mitigating factor – Petitioner's cooperation with federal or state officials – in determining the period of exclusion.

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E.  A 10-year exclusion period is not unreasonable.

I must uphold the IG's determination as to the length of exclusion if it is not unreasonable.  42 C.F.R. § 1001.2007(a)(1)(ii).  This means that:

[s]o long as the amount of time chosen by the OIG is within a reasonable range, based on demonstrated criteria, the ALJ has no authority to change it under this rule.  We believe that the deference § 1001.2007(a)(2) grants to the OIG is appropriate, given the OIG's vast experience in implementing exclusions under these authorities.

57 Fed. Reg. 3298, 3321 (Jan. 29, 1992).

In making my determination, the quality of the aggravating (or mitigating) factors is of greater significance than the mere number of factors present in a given case.  As the Secretary of Health and Human Services stated in the preamble to the final rule establishing the exclusion regulations:

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

57 Fed. Reg. at 3314-15.  In determining whether the period of exclusion selected by the IG is not unreasonable, I may not substitute my own judgment for that of the IG.  Richard E. Bohner, DAB No. 2638 at 2 (2015) (citations omitted), aff'd, Bohner v. Burwell, No. 15-cv-4088, 2016 WL 8716339 (E.D. Pa. Dec. 2, 2016).  Instead, I look to see “whether the period of exclusion imposed by the I.G. was within a reasonable range, based on demonstrated criteria.”  Craig Richard Wilder, DAB No. 2416 at 8 (2011).  In assessing the reasonableness of the exclusion period selected by the IG, I must consider both mitigating and aggravating factors.  Here, the IG appropriately applied three aggravating

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factors and one mitigating factor, the unique circumstances of which explain the five-year increase from the minimum in the period of exclusion selected by the IG.

First, Petitioner's criminal conduct resulted in a large loss to the Medicare program – $884,585.  IG Ex. 4 at 5.  The Board has observed it is “entirely reasonable” to give significant weight to loss amounts substantially larger than the minimum regulatory threshold.  Laura Leyva, DAB No. 2704 at 9-10 (2016) (citations omitted).  Here, Petitioner's criminal conduct resulted in a loss to the Medicare program amounting to approximately 17.5 times the regulatory minimum of $50,000 for program loss to be considered an aggravating factor.  42 C.F.R. § 1001.102(b)(1).  That Petitioner could participate in a conspiracy targeting the Medicare program and defraud the country's health insurance safety net of this much money reflects a high level of untrustworthiness to participate as a biller to that program.  See Hussein Awada, M.D., DAB No. 2788 at 7 (2017) (finding “[t]he millions of dollars [$2,348,000] in losses that Petitioner's actions caused . . . merits a substantial increase in the length of his exclusion beyond the minimum period” in affirming a 23-year exclusion with a 14-month duration of criminal activities, 7-year incarceration, an adverse action, and the mitigating factor of cooperation with law enforcement).

The duration of Petitioner's offense signaled a level of culpability and untrustworthiness the IG appropriately considered.  The Board has held that criminal conduct lasting more than four years is “a protracted period of criminal conduct” that shows the individual “is extremely untrustworthy.”  Rosa Velia Serrano, DAB No. 2923 at 9 (2019).  Here, Petitioner's criminal conduct continued from approximately August 2009 until approximately July 2013, or approximately four years.  IG Ex. 2 at 4.  Petitioner's persistent criminal conduct reflects a sustained lack of integrity, not a momentary lapse of judgment.  Donald A. Burstein, Ph.D., DAB No. 1865 at 8 (2003) (observing that “the purpose of this aggravating factor ‘is to distinguish . . . petitioners whose lapse in
integrity is short-lived from those who evidence a lack of such integrity over a longer period . . . .’”).  The IG properly gave this aggravating factor significant weight in determining Petitioner's period of exclusion.

Petitioner's offense also resulted in the District Court's imposition of constructively one day of imprisonment and a 15-month sentence of home detention, which is about half the maximum time authorized for a Class C felony.  IG Ex. 4 at 3; P. Br. at 4-6; 42 C.F.R. § 1001.102(b)(5).  Petitioner persuasively argues that the Court’s imposition of essentially no imprisonment – where the health care fraud statute proscribes up to ten years (18 U.S.C. § 1347(a)) – reflects the District Court’s determination that all of the factors and circumstances pertaining to Petitioner’s criminal conduct and cooperation warranted a relatively low imposition of imprisonment and home detention in contrast to the maximum authorized.  P. Br. at 4-6; IG Ex. 4.  Even so, any length of imprisonment or home detention meets the threshold for application of such as an aggravating factor (42 C.F.R. § 1001.2), and Petitioner has not provided evidence that the IG’s 10-year

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period of exclusion failed to appropriately weigh this aggravating factor proportional to its actual relative magnitude.

Petitioner contends the significant cooperation she provided merited greater consideration as a mitigating factor and should have led the IG to select the minimum period of exclusion permitted by law, five years.  P. Br. at 6-7.  Because many of the details regarding Petitioner’s cooperation remain under seal in a myriad of cases, Petitioner filed under seal in this case a sworn affidavit detailing her cooperation.  P. Ex. 1.  Petitioner fulsomely explains the significant nature of her cooperation, the details of which I will not recount here.  Given the extent to which the details pertaining to Petitioner’s cooperation remain under seal, it is unclear from the record what facts the IG knew at the time of determining the length of Petitioner’s exclusion.  It is clear, however, that the IG knew and stated she applied the mitigating factor of cooperation at the time the IG issued its Notice of Exclusion (IG Ex. 1), that Petitioner’s cooperation efforts included discussion with OIG (P. Ex. 1), and that the IG was aware of several elements of Petitioner’s cooperation at the time of filing her opening brief – prior to Petitioner’s filing of her affidavit (IG Br. at 9-10). 

Petitioner's cooperation was indeed significant, and I do not understate the impact it has had.  However, her cooperation occurred after nearly four years of criminal conduct that caused over $885,000 in losses to the Medicare program, and warranted, in the view of the District Court, 15-months’ home detention despite that cooperation.  Petitioner offers no evidence that she made an effort to cease her criminal conduct or assist the government until after her indictment.  Further, as discussed above, the IG has acknowledged that she credited Petitioner for her significant cooperation when balancing the facts and circumstances of the three aggravating factors in determining the 10-year period of exclusion.  IG Br. at 9-10; IG Reply at 2-3.  Petitioner, while proving that the mitigating factor of cooperation applies and is significant, has not persuasively demonstrated that the IG’s determination of a 10-year length of exclusion is outside the reasonable range in light of all the facts and circumstances of both the aggravating and mitigating factors even if the IG may not have known some facts pertaining to Petitioner’s cooperation until this proceeding.  P. Br. at 6-7; P. Ex. 1.  In short, I fully credit Petitioner's efforts at cooperation.  But I cannot say the IG unreasonably determined, after consideration of all three aggravating factors and a significant mitigating circumstance, that a 10-year period of exclusion was nevertheless warranted.

Though comparisons of the periods of exclusion selected by the IG in other cases is often an exercise of limited persuasive value and not dispositive, as the weighing of aggravating and mitigating factors is necessarily case-specific, the Board has acknowledged that such comparisons can inform my analysis of reasonableness.  Sushil Aniruddh Sheth, M.D., DAB No. 2491 at 5-6 (2012), citing Goldenheim et al., DAB No. 2268 at 29 (quotation omitted).  Petitioner does not specifically point to other exclusion matters in an attempt to show the 10-year period of exclusion selected by the IG here was

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unreasonable.  P. Br. at 6-7.  The IG, however, has identified three cases where the same three aggravating factors of a similar or lesser magnitude resulted in a 14- or 15-year period of exclusion that was not found unreasonable.  See, e.g., Jennifer Yvonne Berry, M.D., DAB CR2126 (2010) (14-year exclusion for 1.5 years of conduct, $458,237 in financial harm, and 6 months’ home detention); Oakey Chikere, Sr., DAB CR5112 (2018) (15-year exclusion for 2 years of conduct, $258,738 in financial harm, and 70 months incarceration); see also Mark A. Frawley, D.C., DAB CR1037 (2003) (15-year exclusion for 4 years of conduct, $800,000 in financial harm, 4 months of work release, adverse action, and significant cooperation). 

The IG has not articulated the precise value assigned to Petitioner's cooperation here, but the IG has tripled the mandatory minimum period of exclusion in the presence of similar aggravating factors absent the presence of a mitigating factor.  See id.  Here, with the consideration of a significant mitigating factor, the IG only doubled the mandatory minimum period of exclusion.  It would perhaps be more helpful to reviewing courts (and less opaque to excluded individuals) for the IG to indicate the increase in the period of exclusion caused by aggravating factors, and then the reduction in the period of exclusion warranted by any mitigating factors.  But the regulations have never required the IG to explicitly do so.  Having reviewed other cases with similar aggravating and mitigating circumstances, I conclude the IG acknowledged Petitioner's substantial cooperation as a mitigating factor, and as a result, provided an adequate reduction in her period of exclusion.

For these reasons, I conclude that the IG did not unreasonably weigh the three aggravating factors and demonstrated she adequately considered Petitioner's significant level of cooperation as a mitigating factor in selecting a 10-year period of exclusion.  Petitioner's crime had a substantial financial impact on the Medicare program, occurred over a long period of time, and resulted in over a year of home detention.  Her cooperation was a significant mitigating factor, but there is no evidence that she sought to cooperate with the government or stop committing criminal offenses that victimized the Medicare program until after her indictment.  The length of exclusion imposed by the IG is not unreasonable.

V.     Conclusion

I affirm the IG's determination to exclude Petitioner from participating in Medicare, Medicaid, and all other federal health care programs for a period of 10 years.

1. More fully, the regulations permit cooperation to mitigate a period of exclusion where “cooperation with Federal or State officials resulted in—(i) Others being convicted or excluded from Medicare, Medicaid and all other Federal health care programs, [or] (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)(3).
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