Douglas Shrewsbury, DAB CR6151 (2022)

DECISION

Douglas Shrewsbury (Petitioner), a registered nurse and nurse practitioner, was convicted of one count of aggravated trafficking in drugs, one count of aggravated possession of drugs, and one count of Medicaid fraud. Based on the disposition of his criminal case, the Inspector General of the U.S. Department of Health and Human Services (IG) excluded Petitioner from participation in Medicare, Medicaid, and all federal health care programs for a period of ten years, pursuant to sections 1128(a)(1) and 1128(a)(4) of the Social Security Act (Act). Petitioner appeals the exclusion. For the reasons discussed below, I find that the IG properly excluded Petitioner. I further find that the ten-year period of exclusion is reasonable.

I. Background and Procedural History

A. Petitioner’s Convictions

In an indictment filed July 9, 2018, a grand jury in Clark County, Ohio, charged Petitioner with fourteen counts of aggravated trafficking in drugs in violation of Ohio Rev. Code Ann. § 2925.03(A) (counts 1-11, 13, 15, and 17); nine counts of aggravated

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possession of drugs in violation of Ohio Rev. Code Ann. § 2925.11(A) (counts 12, 14, 16, and 18-23); and one count of Medicaid Fraud in violation of Ohio Rev. Code Ann. § 2913.40(B) (count 24).  IG Exhibit (Ex.) 3 at 1.  Each of the crimes charged was a felony.  IG Ex. 3 passim.  On or about November 16, 2018, Petitioner pleaded guilty to one count of aggravated trafficking in drugs (count 1), one count of aggravated possession of drugs (count 12), and one count of Medicaid fraud (count 24).  IG Ex. 4 at 1.  A judge in the Court of Common Pleas, Clark County, Ohio (state court), accepted Petitioner’s guilty plea and found him guilty of the charges to which he pleaded guilty.  Id. at 4; see also IG Ex. 5 at 1.

In pleading guilty to count 1 of the indictment, Petitioner admitted that, from on or about January 1, 2017, through November 21, 2017, he sold or offered to sell a Schedule II controlled substance not in accordance with Ohio laws.  IG Ex. 3 at 2; see also IG Ex. 4 at 3.  In pleading guilty to count 12 of the indictment, Petitioner admitted that, on or about November 21, 2017, he knowingly obtained or possessed a Schedule II controlled substance in violation of Ohio laws.  IG Ex. 3 at 5; see also IG Ex. 4 at 3.  In pleading guilty to count 24 of the indictment, Petitioner admitted that, from on or about January 1, 2017, through November 21, 2017, Petitioner knowingly made or caused to be made a false or misleading statement for use in obtaining reimbursement from the Medicaid program, the value of which was more than $7,500 and less than $150,000.  IG Ex. 3 at 7; see also IG Ex. 4 at 3.

At a sentencing hearing held on December 27, 2018, the state court judge sentenced Petitioner to serve a prison term of three years for the drug trafficking offense, a term of two years for the drug possession offense, and a term of eighteen months for the Medicaid fraud offense.  IG Ex. 5 at 2.  The judge ordered the sentences to run concurrently.  Id.  In addition, the judge ordered Petitioner to pay restitution in the amount of $29,082.19.  Id.

B. Ohio Sanctions Against Petitioner’s Nursing License

By letter dated January 26, 2017, the Ohio Board of Nursing (Nursing Board) notified Petitioner that the Nursing Board proposed to impose discipline on Petitioner’s nursing license and offered Petitioner the opportunity for a hearing.  IG Ex. 6 at 10-14.  The Nursing Board charged that Petitioner had written himself unauthorized prescriptions, forging the signature of his collaborating physician.  Id. at 10.  The Nursing Board further charged that the Standard Care Arrangement (SCA) Petitioner executed with his collaborating physician did not contain all the provisions required under Ohio law.  Id. at 11-13.  Among other deficiencies, the Nursing Board alleged that the SCA did not include all the required provisions covering Petitioner’s prescribing practices, including Petitioner’s prescribing of Schedule II controlled substances.  Id. at 12-13.

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Effective November 16, 2017, Petitioner and the Nursing Board entered into a Consent Agreement to resolve the disciplinary proceedings initiated in the January 26, 2017 notice.  Id. at 4-9.  In the Consent Agreement, Petitioner admitted that the Nursing Board had sufficient evidence to prove that Petitioner had written himself unauthorized prescriptions.  Id. at 6.  Petitioner further admitted that his SCA did not contain the required provisions.  Id.  As a result, the Nursing Board reprimanded Petitioner’s nursing license and nurse practitioner certificate.  Id. at 6.  In addition, Petitioner agreed to pay a $500.00 fine, to complete continuing education, to submit his SCAs to the Nursing Board for review, and to undergo examination by a physician approved by the Nursing Board to assess Petitioner’s fitness for duty and safety to practice nursing.  Id. at 6-7.  Petitioner acknowledged that the Nursing Board would automatically suspend his nursing license and nurse practitioner certificate if he breached any term of the Consent Agreement.  Id. at 8.

On February 21, 2019, Petitioner permanently surrendered his license to practice nursing in the state of Ohio.  Id. at 1-2.  In the document surrendering his license, Petitioner admitted that he violated the terms of the Consent Agreement described above.  Id. at 1.  Petitioner further admitted that he had been convicted of the felony offenses described above.  Id. at 2.  Based on Petitioner’s surrender of his license, the Nursing Board permanently revoked his license to practice nursing, effective March 14, 2019.  IG Ex. 2.

C. Petitioner’s Administrative Appeals

By letter dated October 30, 2020, the IG notified Petitioner that he was being excluded from Medicare, Medicaid, and all federal health care programs pursuant to sections 1128(a)(1) and 1128(a)(4) of the Social Security Act (Act).  IG Ex. 1.  The IG explained that Petitioner was excluded pursuant to section 1128(a)(1) of the Act based on his conviction in state court, of a criminal offense related to the delivery of an item or service under the Medicare or a state health care program, including the performance of management or administrative services relating to the delivery of items or services.  Id.  The IG also explained that Petitioner was excluded pursuant to section 1128(a)(4) of the Act due to his felony conviction in the same court, of a criminal offense related to the unlawful manufacture, distribution, prescription or dispensing of a controlled substance as defined under federal or state law.  Id.  The IG stated that Petitioner would be excluded for a period of ten years.  Id.

Petitioner timely requested a hearing pursuant to 42 C.F.R. § 1005.2(c).  The case was docketed as C‑21‑351 and assigned to me for a hearing and decision.  Following a telephone prehearing conference with the parties, I set a schedule for the parties to file briefs and documentary evidence (2021 Briefing Order).  See Docket Entry #6 in the Departmental Appeals Board (DAB) Electronic Filing System (E-File) for Docket No. C‑21‑351.  The IG timely filed her brief (IG Br.).  Petitioner failed to do so.  Accordingly, in an order issued August 5, 2021, I directed Petitioner to show cause why

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I should not dismiss his case for abandonment. Docket Entry #8 in DAB E-File for C 21 351. Petitioner responded by, in essence, requesting a further extension of the deadline to submit his brief and exhibits. Docket Entry #11 in DAB E-File for C-21-351. In the absence of objection by the IG, I extended the deadline for Petitioner to file his brief. However, Petitioner again failed to file a brief by the deadline I had set. Therefore, on October 6, 2021, I issued a second order to show cause. Docket Entry #15 in DAB E-File for C-21-351. The day before the deadline set in the October 6 order to show cause, Petitioner filed a motion requesting a further extension of the deadline. Docket Entry #16 in DAB E-File for C-21-351. In the absence of objection by the IG, I again extended the deadline and Petitioner ultimately filed a brief (P. Br.) and supporting exhibits. Docket Entries #18, #20 - 20c in DAB E-File for C 21 351. The IG then filed a reply brief and Petitioner filed a sur-reply. Docket Entries #21, 22, 22a in DAB E-File for C-21-351.

Following receipt of Petitioner’s sur-reply, I directed the IG to file a response to Petitioner’s allegation that he had cooperated with law enforcement as described in 42 C.F.R. § 1001.102(c)(3).  Docket Entry #23 in DAB E-File for C-21-351.  In the alternative, I stated I would entertain a motion by the IG to remand the case for the IG to consider Petitioner’s representations concerning the mitigating factor.  Id.  The IG requested remand and Petitioner did not object.  Docket Entries #24, 25 in DAB E-File for C-21-351.  Therefore, by Order dated January 19, 2022, I remanded Petitioner’s hearing request to the IG.  The remand order provided that if, on remand, the IG declined to reduce the length of Petitioner’s exclusion, Petitioner could file a motion to reopen the case.  Docket Entry #26 in DAB E-File for C-21-351.

In a letter dated February 2, 2022, the IG informed Petitioner that she had considered the available evidence concerning Petitioner’s cooperation and had determined that the evidence did not establish the mitigating factor under the applicable regulations.  See Docket Entry #7 in DAB E-File for C-22-405.  The IG’s letter stated that Petitioner’s ten‑year exclusion remained in effect.  Id.  On March 22, 2022, Petitioner filed a motion to reopen.  The Civil Remedies Division (CRD) docketed Petitioner’s request to reopen as C-22-405.  I granted Petitioner’s request to reopen and scheduled a telephone prehearing conference for April 14, 2022.  Petitioner did not appear for the conference; nor did he contact the attorney assisting me to request that the conference be rescheduled.  Therefore, on April 15, 2022, I issued yet another order to show cause.  Docket Entry #4 in DAB E-File for C-22-405.

Petitioner responded to the order to show cause and I rescheduled the telephone conference.  Petitioner and counsel for the IG appeared at the rescheduled conference on May 17, 2022.  During the telephone prehearing conference, I underscored to Petitioner that it was imperative for him to comply with all deadlines.  I warned him that he would be subject to sanctions, that may include dismissal of this case, if he were to miss a deadline without having requested an extension.  See Order and Schedule for Filing

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Briefs and Documentary Evidence, issued May 31, 2022, (Docket Entry #8 in DAB E‑File for Docket Number C-22-405) (2022 Briefing Order).

Paragraph 6.a of my 2022 Briefing Order directed Petitioner to file a written argument along with documentation in support of his contention that he cooperated with law enforcement and that his cooperation resulted in others being convicted or subject to civil money penalties or resulted in other cases being investigated within the meaning of 42 C.F.R. § 1001.102(c)(3), or in the alternative, to file a motion for an extension of time.  I set a deadline of July 8, 2022.  Petitioner failed to file either his written argument or a motion for an extension by the deadline.  I therefore sanctioned Petitioner as authorized by 42 C.F.R. § 1005.14(a)(2) by prohibiting him from introducing any further argument or evidence in support of his claim that he cooperated with law enforcement within the meaning of 42 C.F.R. § 1001.102(c)(3).  Order Imposing Sanctions and Closing the Record (Docket Entry #9 in DAB E‑File for Docket Number C-22-405) (Order Closing the Record).

As provided in my Order Closing the Record, I decide this case based on the briefs and documentary evidence the parties submitted in Docket No. C-21-351.  Neither party objected to the exhibits proposed by the other party in Docket No. C-21-351.  Therefore, in the absence of objection, I admit IG Exs. 1-6.  I also admit the documents Petitioner submitted as Docket Entries #20-20c and #22a.  My 2021 Briefing Order directed the parties to indicate in their briefs whether an in-person hearing would be necessary and, if so, to submit the testimony of any proposed witness as “written direct testimony in the form of an affidavit or declaration.”  Briefing Order ¶ 7.c.ii (emphasis omitted).  The order also explained that I would hold a hearing only if a party offered witness testimony that is relevant and non-cumulative and the opposing party requested cross‑examination.  Id. ¶ 9.  The IG’s brief stated that a hearing is not necessary.  IG Br. at 9.

Petitioner’s brief did not address the need for a hearing.  Further, Petitioner did not offer as an exhibit the written direct testimony of any witness.  Moreover, even if I treated the factual allegations in Petitioner’s Brief as a proffer of Petitioner’s testimony, the IG did not request to cross-examine Petitioner.  Accordingly, because neither party has requested to cross-examine a witness, a hearing is not necessary and I decide this case based on the written record.

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II. Discussion

A. Petitioner must be excluded pursuant to section 1128(a)(1) of the Act because he was convicted of a criminal offense related to the delivery of an item or service under the Medicaid program.¹

The Act requires the Secretary of Health and Human Services (Secretary) to exclude from program participation any individual or entity that has been convicted of a criminal offense related to the delivery of an item or service under Medicare or a state health care program.  Act § 1128(a)(1).  The Secretary has delegated this authority to the IG.  42 C.F.R. § 1001.101(a).

1. Petitioner was convicted of a criminal offense.

Petitioner does not dispute that he was convicted of a criminal offense.  P. Br.  The evidence of record demonstrates that Petitioner pleaded guilty, and the state court accepted the plea and adjudicated him guilty of one felony count of Medicaid fraud.  IG Exs. 4, 5.  Accordingly, Petitioner was convicted of a criminal offense as that term is defined in subsections 1128(i)(2) and (3) of the Act (an individual is “convicted” where there has been a finding of guilt against the individual, or where a court has accepted an individual’s guilty plea).

2. The criminal offense for which Petitioner was convicted was related to the delivery of an item or service under Medicaid.

Because Petitioner concedes that the IG has a basis to exclude him, it does not appear that he disputes that his conviction for Medicaid fraud is related to the delivery of an item or service under Medicaid.  In any event, DAB decisions have long held that a conviction for Medicaid fraud is related to the delivery of an item or service under Medicaid.  See, e.g., Jack W. Greene, DAB No. 1078 (1989), aff’d 731 F. Supp. 2d 835 (E.D. Tenn. 1990) (submitting a false bill to Medicaid “is directly related to the delivery of the item or service since the submission of a bill or claim for Medicaid reimbursement is the necessary step, following the delivery of the item or service, to bring the ‘item’ within the purview of the program.”).  In addition, Petitioner was ordered to pay $29,082.19 in restitution.  IG Ex. 5 at 2.  It is well-settled that “a criminal offense resulting in financial loss to a state Medicaid program is ‘related to’ the delivery of items or services under that Medicaid program because it results ‘in less funds being available to pay for covered services’ delivered to Medicaid patients.”  Summit S. Shah, M.D., DAB No. 2836 at 8-9 (2017) (quoting Berton Siegel, D.O., DAB No. 1467 at 6-7 (1994)).

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Accordingly, the IG was required to exclude Petitioner pursuant to section 1128(a)(1) of the Act.

B. Petitioner must be excluded pursuant to section 1128(a)(4) of the Act because he was convicted of felony offenses relating to the unlawful manufacture, distribution, prescription, or dispensing of a controlled substance under state law.

The Act requires the Secretary of Health and Human Services (Secretary) to exclude from program participation any individual or entity that has been convicted of a felony offense occurring after the date of the enactment of the Health Insurance Portability and Accountability Act of 1996 (that is, after August 21, 1996), and related to the unlawful manufacture, distribution, prescription, or dispensing of a controlled substance under federal or state law.  Act § 1128(a)(4).  The Secretary has delegated this authority to the IG.  42 C.F.R. § 1001.101(d).

1. Petitioner was convicted of felony offenses occurring after August 21, 1996.

As I have previously described, Petitioner pleaded guilty to aggravated trafficking in drugs in violation of Ohio Rev. Code Ann. § 2925.03(A) (a felony of the first degree) and aggravated possession of drugs in violation of Ohio Rev. Code Ann. § 2925.11(A) (a felony of the second degree).  IG Ex. 4 at 1; see also IG Ex. 5 at 1.  On or about November 16, 2018, the state court accepted Petitioner’s plea and adjudicated him guilty.  IG Ex. 4 at 4; IG Ex. 5 at 1.  Accordingly, Petitioner was convicted, as that term is defined in subsections 1128(i)(2), and (3) of the Act, of felony offenses occurring after August 21, 1996.

2. The felony offenses for which Petitioner was convicted are related to the unlawful manufacture, distribution, prescription, or dispensing of a controlled substance under state law.

I find that the felonies for which Petitioner was convicted, aggravated trafficking in drugs, and aggravated possession of drugs, are, on their face, related to the unlawful manufacture, distribution, prescription, or dispensing of a controlled substance, within the meaning of section 1128(a)(4) of the Act.

In his brief, Petitioner explains that his convictions occurred because his supervising physician “was not on site at the medical office as often as required by law” and, for that reason, under the law, “Petitioner was prescribing medications without the proper oversight.”  P. Br. at 1. Petitioner asserts that he did not prescribe medications “without a proper medical reason;” he did not intend “to sell or unlawfully distribute a controlled substance;” he did not put “patients at risk by [his] prescribing habits;” and “no patient

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was harmed.”  Id.  According to Petitioner, his is a “[c]ase of clerical errors with State Business registration procedures.”  Id.  While the intent of these arguments is not entirely clear, Petitioner may be contending that the convictions for drug trafficking and drug possession are not related to the unlawful manufacture, distribution, prescription, or dispensing of a controlled substance within the meaning of section 1128(a)(4) of the Act.  I reject this contention.

Based on Petitioner’s assertion that he was convicted based on a technicality involving inadequate supervision by his collaborating physician, I infer that the factual basis for his convictions involves the same conduct described in the Nursing Board’s notice letter of January 26, 2017.  As I have described above, the Nursing Board charged that the SCA agreement between Petitioner and his collaborating physician did not include the provisions required by law to ensure that the collaborating physician was exercising oversight of Petitioner’s prescribing of controlled substances.  See IG Ex. 6 at 11-13.  The Nursing Board additionally charged that Petitioner improperly wrote a prescription for himself for Xanax.² Id. at 10.  As part of the Consent Order between Petitioner and the Nursing Board, Petitioner admitted that his SCA did not include the required provisions and admitted that the Nursing Board had sufficient evidence to prove that he had improperly written prescriptions to himself.  Id. at 6.

I conclude that these facts are sufficient to establish that there is a “nexus or common-sense connection” between Petitioner’s convictions and the unlawful distribution, prescription, or dispensing of a controlled substance.  This is all that is required to invoke the exclusion authority under section 1128(a)(4) of the Act.  See Quayum v. U.S. Dep’t of Health & Human Servs., 34 F. Supp. 2d 141, 143 (E.D.N.Y. 1998); see also Friedman v. Sebelius, 686 F.3d 813, 820 (D.C. Cir. 2012) (describing the phrase “relating to” in section 1128(b)(1) as “deliberately expansive words,” “the ordinary meaning of [which] is a broad one” and one that is not subject to “crabbed and formalistic interpretation”) (internal quotation marks omitted).  I therefore find that Petitioner’s convictions for aggravated drug trafficking and aggravated possession of drugs are related to the unlawful distribution, prescription, or dispensing of a controlled substance.  The IG was therefore required to exclude Petitioner pursuant to section 1128(a)(4) of the Act.

C. Petitioner may not collaterally attack his convictions in this proceeding.

Petitioner argues that his convictions arose out of “clerical errors” and that the conclusion that “Petitioner was selling or offering to sell a compound . . . containing a Schedule II controlled substance is taken out of context of the situation regardless of the actual plea.”  P. Br. at 1.  In making these arguments, Petitioner may be contending that he was not in

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fact guilty of the offenses to which he pleaded guilty and for which he was convicted.  In legal terms, such arguments are referred to as “collateral attacks.”

However, the regulations are clear that when appealing an exclusion, an excluded party may not collaterally attack the conviction or civil judgment underlying the exclusion:

When the exclusion is based on the existence of a criminal conviction or a civil judgment imposing liability by Federal, State or local court, a determination by another Government agency, or any other prior determination where the facts were adjudicated and a final decision was made, the basis for the underlying conviction, civil judgment or determination is not reviewable and the individual or entity may not collaterally attack it either on substantive or procedural grounds in this appeal.

42 C.F.R. § 1001.2007(d). Petitioner’s convictions are “prior determination[s] where the facts were adjudicated and a final decision was made” within the meaning of the regulation. Therefore, any argument that Petitioner was not guilty of the crimes for which he was convicted is irrelevant as a matter of law.

D. Petitioner must be excluded for five years, the minimum period required by law.

Because Petitioner was convicted of an offense related to the delivery of an item or service under the Medicaid program and of felony offenses related to the unlawful manufacture, distribution, prescription, or dispensing of a controlled substance, the Act requires that he be excluded from participation in Medicare and all federal health care programs pursuant to subsections 1128(a)(1) and (a)(4).  The minimum mandatory period of exclusion is five years.  Act § 1128(c)(3)(B); 42 C.F.R. § 1001.102(a).  Although Petitioner must be excluded for at least five years, the IG may exclude an individual for a period longer than five years if certain aggravating factors are present.  42 C.F.R. § 1001.102(b).  If the IG imposes an exclusion longer than five years based on the presence of aggravating factors, I may consider whether certain mitigating factors exist that may justify shortening the exclusion to not less than five years.  42 C.F.R. § 1001.102(c).  In the following sections of this decision, I consider whether, in light of any aggravating or mitigating factors, the length of Petitioner’s exclusion falls within a reasonable range.

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E. A ten-year period of exclusion is reasonable.

If the IG imposes an exclusion longer than five years based on the presence of aggravating factors, I may consider whether certain mitigating factors exist that may justify shortening the exclusion to not less than five years.  42 C.F.R. § 1001.102(b) and (c).  I may not consider evidence that does not pertain to one of the aggravating or mitigating factors listed in the regulations to decide whether an exclusion of a particular length is reasonable.

1. The IG has proven two aggravating factors supporting an exclusion period beyond the five-year statutory minimum.

The regulations establish aggravating factors that the IG may consider to lengthen the period of exclusion beyond the five-year minimum for a mandatory exclusion.  42 C.F.R. § 1001.102(b).  In this case, the IG’s notice letter advised Petitioner of two aggravating factors that justified excluding him for more than five years.  IG Ex. 1 at 2.  These factors are listed in 42 C.F.R. §§ 1001.102(b)(5) and (b)(9).

a. The sentence imposed against Petitioner included a period of incarceration.

The IG asserted that Petitioner’s criminal conviction resulted in a sentence of incarceration.  IG Br. at 6; see also IG Ex. 5 at 2; 42 C.F.R. § 1001.102(b)(5).  The record shows that the state court sentenced Petitioner to three years’ incarceration.  IG Ex. 5 at 2.  Petitioner has not disputed this factor.  P. Br.  Therefore, the evidence of record establishes the presence of this aggravating factor.

b. Petitioner was the subject of another adverse action by a state board.

The IG also argued that the Nursing Board revoked Petitioner’s nursing license based on the same conduct that led to Petitioner’s convictions.  IG Br. at 7; see also IG Exs. 2, 6; 42 C.F.R. § 1001.102(b)(9).  Petitioner has not disputed this factor.  P. Br.  Therefore, the evidence of record establishes the presence of this aggravating factor.

2. Petitioner has not established any mitigating factors that could reduce the period of exclusion.

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

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1. [W]hether the individual or entity was convicted of three or fewer misdemeanor offenses and the entire amount of financial loss (both actual loss and intended loss) to Medicare or any other Federal, State, or local governmental health care program due to the acts that resulted in the conviction, and similar acts, is less than $5,000;
2. The record in the criminal proceedings, including sentencing documents, demonstrates that the court determined that the individual had a mental, emotional or physical condition before or during the commission of the offense that reduced the individual’s culpability; or
3. The individual’s or entity’s cooperation with Federal or State officials resulted in—
   1. Others being convicted or excluded from Medicare, Medicaid and all other Federal health care programs,
   2. Additional cases being investigated or reports being issued by the appropriate law enforcement agency identifying program vulnerabilities or weaknesses, or
   3. The imposition against anyone of a civil money penalty or assessment under part 1003 of this chapter.

Petitioner has the burden to prove by a preponderance of the evidence that there is a mitigating factor for me to consider. 42 C.F.R. § 1005.15(b)(1). Based on my review of the record, I conclude that Petitioner has failed to prove any mitigating factor that I am permitted to consider to reduce the period of his exclusion.

a. Petitioner did not prove by a preponderance of the evidence that his cooperation with law enforcement resulted in others being convicted, excluded, or subject to civil money penalties.

Petitioner argues that he cooperated with federal officials within the meaning of 42 C.F.R. § 1001.102(c)(3).  Petitioner describes his cooperation as follows:

The Petitioner’s professional and personal relationships with Dr [J.H.] MD and former Insys Therapeutics, Inc Sales Representative [N.G.] led Petitioner to learn intimate details about their kickback scheme and billing practices. The Petitioner provided detailed information related to the scheme to the Government that helped the Government secure convictions of both. Court documents reveal the defendants separately pled guilty in light of prosecution to operating a

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scheme where [N.G.] helped Dr [J.H.] secure over 1.7 million dollars in CMS fraudulent funds.

P. Br. at 2. Petitioner submitted with his brief copies of a trial subpoena and correspondence with the U.S. Attorney’s office arranging for him to travel to Columbus, Ohio, to testify at trial in the criminal case against N.G. Docket Entries #20-20c in DAB E-File for C-21-351. Apparently, Petitioner’s testimony was ultimately not needed as N.G. pleaded guilty.

To establish the mitigating factor under the regulations, Petitioner must do more than prove that he cooperated with authorities.  “The text of 42 C.F.R. § 1001.102(c)(3) raises a high standard . . . .  Mere cooperation is not enough to establish the mitigating factor; the cooperation must result in an investigation, conviction, or report.”  Begum v. Hargan,No. 16 CV 9624, 2017 WL5624388, at *8 (N.D. Ill. Nov. 21 2017).Petitioner’s documents and argument establish, at most, that Petitioner was prepared to testify for the prosecution in the federal trial of N.G.  Because, as Petitioner concedes, both J.H. and N.G. pleaded guilty before trial, Petitioner’s documents do not establish that his cooperation “resulted in others being convicted” as required to establish the mitigating factor at 42 C.F.R. § 1001.102(c)(3)(i).

Petitioner has the burden of proof to establish any mitigating factor.  42 C.F.R. § 1005.15(b)(1).  This means that it is Petitioner’s responsibility to locate and present evidence to substantiate both that he cooperated and that his cooperation resulted in others being investigated or convicted.  See Stacey R. Gale, DAB No. 1941 (2004), 2004 WL 2102882 at *6.  The I.G. does not have the responsibility to prove that a mitigating factor does not apply.  Id.  As the Gale decision explained, “[T]he I.G. does not have the responsibility to substantiate under the regulation that even though Petitioner may have cooperated with a state or federal official, that cooperation did not result in additional cases being investigated.  It is entirely Petitioner’s burden to demonstrate that . . .  cooperation with a state or federal official resulted in additional cases being investigated.”  Id.  Similarly, in the present case, it is entirely Petitioner’s burden to establish that his cooperation resulted in others being convicted.  Petitioner has failed to meet that burden.

Petitioner may assert that he was unable to meet his burden of proof because I sanctioned him by closing the record, which prevented him from offering additional evidence regarding his cooperation.  Petitioner had multiple opportunities to present his evidence, but repeatedly failed to do so.  While Docket No. C-21-351 was pending, I extended Petitioner’s deadline to submit argument and evidence from July 30, 2021 until December 3, 2021, despite his having failed to comply with my orders on multiple occasions.  In Docket No. C-22-405, I again offered Petitioner the opportunity to present evidence of his cooperation.  But, despite my warning that he would face sanctions if he again ignored my orders, Petitioner failed to comply with the deadline I had set.

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Ultimately, I sanctioned Petitioner “for failing to comply with an order or procedure, for failing to defend an action, or for other misconduct that interferes with the speedy, orderly, or fair conduct of the hearing,” as authorized by 42 C.F.R. § 1005.14(a).  Thus, Petitioner lost the opportunity to present additional evidence because of his own actions (or inactions).

b. Petitioner’s other arguments do not concern a mitigating factor recognized by the regulations.

As I have described above, Petitioner attempts to minimize the seriousness of his convictions by characterizing them as arising out of “clerical errors.”  P. Br. at 1.  According to Petitioner, he did not put “patients at risk by [his] prescribing habits;” and “no patient was harmed.”  Id.  On this basis, Petitioner argues that the IG did not “view this case based on its unique circumstances” and took his convictions “out of context.”  Id.  To the extent Petitioner is arguing that the IG should have imposed a shorter exclusion because his criminal conduct did not put patients at risk or cause actual harm to a patient, these contentions do not concern any mitigating factor enumerated in 42 C.F.R. § 1001.102(c).  Accordingly, I reject Petitioner’s contention that the period of his exclusion should be reduced because his multiple felony convictions were based on mere “clerical errors.”  Further, as I discuss in the following section of my decision, I do not agree with Petitioner’s contention that his convictions were only technical violations.

3. Based on the presence of two aggravating factors and no mitigating factors, the ten-year exclusion imposed in this case falls within a reasonable range.

The IG has broad discretion in determining the length of an exclusion.  See, e.g., Hussein Awada, M.D.,DAB No. 2788 at 6 (2017).  So long as the period of exclusion imposed by the IG is within a reasonable range, based on demonstrated criteria, I have no authority to change it.  Joann Fletcher Cash,DAB No. 1725 at 16‑17 (2000) (citing 57 Fed. Reg. 3298, 3321 (1992)); see also Jeremy Robinson,DAB No. 1905 at 5 (2004).

Based on the record before me, I find that a ten‑year exclusion falls within a reasonable range.  As outlined above, the record establishes the presence of two aggravating factors and does not establish the presence of any mitigating factor defined by the regulations.  See 42 C.F.R. § 1001.102(b)(5), (b)(9), and (c).

The regulations provide that any sentence including incarceration may be considered an aggravating factor.  42 C.F.R. § 1001.102(b)(5).  Here, the state court sentenced Petitioner to incarceration for a term of 3 years, pursuant to his guilty plea.  IG Ex. 5 at 2.  Contrary to Petitioner’s claim that his criminal conduct was no more than a clerical error, the length of Petitioner’s sentence demonstrates that the state court judge found Petitioner’s conduct serious enough to warrant a substantial period of incarceration.

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I therefore find that the factor of incarceration justifies a substantial increase in the duration of Petitioner’s exclusion.

In addition, the Nursing Board first reprimanded and then revoked Petitioner’s license to practice nursing.  IG Exs. 2, 6.  The sanctions imposed by the Nursing Board underscore the Nursing Board’s concerns about Petitioner’s ability to practice in Ohio safely and competently and are inconsistent with Petitioner’s contention that his conduct involved only technical violations of the law.  As recited by the Nursing Board in its order revoking Petitioner’s license, Petitioner failed to comply with the terms of the Consent Agreement that he had executed.  IG Ex. 2.  Petitioner’s failure to comply with the Consent Agreement, and the resulting revocation of Petitioner’s nursing license, indicate that the Nursing Board found him untrustworthy to practice nursing in Ohio, at least in part based on his criminal convictions.  Id.  Thus, this factor also weighs in favor of a lengthy exclusion.

Given that the IG has proven two aggravating factors and Petitioner has not proved any cognizable mitigating factor, I cannot conclude that the exclusion imposed by the IG is excessive.  I therefore find that the ten‑year exclusion falls within a reasonable range.

III. Conclusion

For the reasons explained above, I conclude that the IG properly excluded Petitioner from participation in Medicare, Medicaid, and all federal health care programs, and I sustain as reasonable the ten-year period of exclusion.

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Endnotes

¹  My conclusions of law appear as headings in bold italic type. My findings of fact appear in the supporting text.

²  Xanax is a brand name for alprazolam, which is a Schedule IV controlled substance. Controlled Substances - Alphabetical Order (usdoj.gov) (last visited August 31, 2022).