Yazan B. Al-Madani, DDS, DAB CR5833 (2021)

DECISION

I affirm the 25-year exclusion of Yazan B. Al-Madani, DDS (Petitioner) from participation in all federal health programs.

I.  Background

In an August 31, 2020 notice, the Inspector General (IG) of the United States Department of Health and Human Services informed Petitioner that she was excluding him from participation in all federal health care programs under section 1128(a)(3) of the Social Security Act (42 U.S.C. § 1320a-7(a)(3)) for a period of 25 years due to his felony conviction in the United States District Court for the Northern District of Ohio (District Court) of a criminal offense related to fraud, theft, embezzlement, breach of fiduciary responsibility, or other financial misconduct in connection with the delivery of a health care item or service, including the performance of management or administrative services relating to the delivery of items or services, or with respect to any act or omission in a health care program (other than Medicare and a State health care program) operated by, or financed in whole or in part, by any Federal, State or local Government agency.  IG Exhibit (Ex.) 1 at 1; IG Ex. 2 (amending the exclusion notice to correctly identify the

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court that had convicted Petitioner).  The IG informed Petitioner that the length of exclusion is greater than five years because the following aggravating circumstances exist:

1. The acts resulting in the conviction, or similar acts, caused, or were intended to cause, a financial loss to a government agency or program or to one or more entities of $50,000 or more.  The court ordered Petitioner to pay approximately $897,900 in restitution.
2. The acts that resulted in the conviction, or similar acts, were committed over a period of one year or more.  The acts occurred from about January 2008 to April 2016.
3. The sentence imposed by the court included incarceration.  The court sentenced Petitioner to 121 months of incarceration.

IG Ex. 1 at 2.

Petitioner requested a hearing to dispute the exclusion.  The Civil Remedies Division  acknowledged receipt of the hearing request and issued my Standing Prehearing Order on October 16, 2020.  On December 17, 2020, I held a telephonic prehearing conference with the parties, which I summarized in my December 23, 2020 Order Following Prehearing Conference and Setting Schedule for Prehearing Submissions.

On December 18, 2020, Petitioner filed a letter brief (P. Letter Br.) along with six proposed exhibits (P. Exs. 1-6).1   The IG submitted a prehearing exchange consisting of a brief (IG Br.) and five proposed exhibits (IG Exs. 1-5).  Petitioner subsequently filed a brief as well (P. Br.) and expressly relied on the proposed exhibits he had previously submitted.  The IG filed a reply brief (Reply Br.).

II.  Admission of Exhibits

I admit all of the proposed exhibits into the record, without objection.  Standing Prehearing Order ¶ 12; see 42 C.F.R. § 1005.8(c).

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III.  Decision Rendered on the Written Record

Neither party has any witnesses to offer, and both parties indicated that they do not believe an evidentiary hearing is necessary in this case.  IG Br. at 12; P. Br. at 4.  Therefore, I issue this decision based on the written record.  Standing Prehearing Order ¶ 16; see 42 C.F.R. § 1005.6(b)(5).

IV.  Issues

1) Whether the IG properly excluded Petitioner under 42 U.S.C. § 1320a-7(a)(3).

2) If so, whether the 25-year length of exclusion imposed is unreasonable.

V.  Jurisdiction

I have jurisdiction to adjudicate this case.  42 U.S.C. § 1320a-7(f)(1); 42 C.F.R. §§ 1001.2007, 1005.2.

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

The Secretary of Health and Human Services (Secretary) must exclude an individual from participation in all federally funded health care programs when that individual:

has been convicted for an offense which occurred after August 21, 1996, under Federal or State law, in connection with the delivery of a health care item or service . . . of a criminal offense consisting of a felony relating to fraud, theft, embezzlement, breach of fiduciary responsibility, or other financial misconduct.

42 U.S.C. § 1320a-7(a)(3).

Therefore, for the purposes of this case, the three essential elements to support a mandatory exclusion are:  (1) the excluded individual must have been convicted of a felony offense for conduct that occurred after August 21, 1996; (2) the felony offense must be in connection with the delivery of a health care item or service; and (3) the felony conviction must have been related to fraud, theft, embezzlement, breach of fiduciary responsibility, or other financial misconduct.  42 C.F.R. § 1001.101(c)(1).

If an individual has been convicted of a crime that requires mandatory exclusion, then the Secretary must exclude the individual for at least five years.  42 U.S.C. § 1320a‑7(c)(3)(B).  To implement this provision, the Secretary established, by regulation, a list of aggravating and mitigating factors that must be considered when

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

The record supports the IG's mandatory exclusion in this case and the existence of the three aggravating factors identified by the IG in her exclusion notice.  As discussed below, a qualitative analysis of those factors compels me to conclude that the IG's imposition of a 25-year length of exclusion is not unreasonable.

1. Petitioner was convicted by the District Court of 18 felony offenses for conduct occurring after August 21, 1996. 

On October 19, 2016, a Grand Jury convened by the District Court returned an Indictment charging Petitioner and others with multiple criminal offenses.  IG Ex. 3.  A jury found Petitioner guilty of the following charges in the Indictment:

• Count 1 – Racketeer Influence and Corrupt Organization (RICO) Act (18 U.S.C. § 1962(d)) (IG Ex. 3 at 12-22; IG Ex. 4 at 1);
• Count 2 – Conspiracy to Commit Hobbs Act Bribery (18 U.S.C. § 1951(a)) (IG Ex. 3 at 23-45; IG Ex. 4 at 2);
• Count 3 – Conspiracy to Commit Bribery Concerning Programs Receiving Federal Funds (18 U.S.C. § 371) (IG Ex. 3 at 46-57; IG Ex. 4 at 3);
• Count 4 – Conspiracy to Commit Honest Services Mail Fraud and Wire Fraud (18 U.S.C. § 1349) (IG Ex. 3 at 57-60; IG Ex. 4 at 4);
• Count 6 – Corrupt Solicitation and Acceptance of a Bribe in Relation to a Program Receiving Federal Funds (18 U.S.C. § 666(a)(1)(B), (2)) (IG Ex. 3 at 62; IG Ex. 4 at 5);
• Count 7 – Corrupt Solicitation and Acceptance of a Bribe in Relation to a Program Receiving Federal Funds (18 U.S.C. § 666(a)(1)(B), (2)) (IG Ex. 3 at 63; IG Ex. 4 at 6);
• Count 8 – Conspiracy to Commit Money and Property Mail and Wire Fraud (18 U.S.C. § 1349) (IG Ex. 3 at 64-70; IG Ex. 4 at 7);
• Count 13 – Conspiracy to Solicit, Receive, Offer and Pay Health Care Kickbacks (18 U.S.C. § 371) (IG Ex. 3 at 73-77; IG Ex. 4 at 12);
• Count 21 – Offering or Paying Kickbacks in Connection with Federal Health Care Program (42 U.S.C. § 1320a-7b(b)(2)(A)) (IG Ex. 3 at 79; IG Ex. 4 at 13);
• Count 22 – Offering or Paying Kickbacks in Connection with Federal Health Care Program (42 U.S.C. § 1320a-7b(b)(2)(A)) (IG Ex. 3 at 79; IG Ex. 4 at 14);
• Count 23 – Offering or Paying Kickbacks in Connection with Federal Health Care Program (42 U.S.C. § 1320a-7b(b)(2)(A)) (IG Ex. 3 at 79; IG Ex. 4 at 15);
• Count 24 – Offering or Paying Kickbacks in Connection with Federal Health Care Program (42 U.S.C. § 1320a-7b(b)(2)(A)) (IG Ex. 3 at 79; IG Ex. 4 at 16);

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• Count 25 – Offering or Paying Kickbacks in Connection with Federal Health Care Program (42 U.S.C. § 1320a-7b(b)(2)(A)) (IG Ex. 3 at 79; IG Ex. 4 at 17);
• Count 26 – Offering or Paying Kickbacks in Connection with Federal Health Care Program (42 U.S.C. § 1320a-7b(b)(2)(A)) (IG Ex. 3 at 79; IG Ex. 4 at 18);
• Count 27 – Offering or Paying Kickbacks in Connection with Federal Health Care Program (42 U.S.C. § 1320a-7b(b)(2)(A)) (IG Ex. 3 at 79; IG Ex. 4 at 19);
• Count 28 – Conspiracy to Commit Honest Services and Money and Property Mail Fraud (18 U.S.C. § 1349) (IG Ex. 3 at 80-82; IG Ex. 4 at 20);
• Count 29 – Conspiracy to Obstruct Justice (18 U.S.C. § 1512(k)) (IG Ex. 3 at 83‑89; IG Ex. 4 at 21); and
• Count 30 – False Statement or Representation Made to a Department or Agency of the United States (18 U.S.C. § 1001(a)(2)) (IG Ex. 3 at 89; IG Ex. 4 at 22).

The District Court issued a Judgment in a Criminal Case, which stated that Petitioner "is adjudicated guilty" of the offenses listed above.  IG Ex. 5 at 1.  As provided in detail below, Petitioner's criminal acts were all committed after August 21, 1996.  See IG Ex. 3.

For exclusion purposes, the word "convicted" means that a judgment of conviction has been entered against an individual by a federal, state or local court, or a federal, state or local court has made a finding of guilt against the individual.  42 U.S.C. § 1320a-7(i)(1), (2).  As already stated, a jury found Petitioner guilty of 18 felony offenses and a federal district court confirmed in a judgment that Petitioner had been adjudicated guilty.  IG Exs. 4-5.  Therefore, Petitioner was "convicted" for purposes of this case.

Petitioner concedes that he was convicted of felonies committed after August 21, 1996.  P. Br. at 1-2.  Therefore, I conclude that Petitioner was convicted of felony offenses committed after August 21, 1996.

2. Petitioner's felony convictions involved various conspiracies and actions in which Petitioner was paid to provide dental services that he did not provide, provided dental services through his private dental practice that were rendered by dentists paid by Petitioner's employer and not Petitioner, and provided dental services to patients who were illegally referred to Petitioner's private dental practice from his employer.  Therefore, for purposes of 42 U.S.C. § 1320a-7(a)(3), Petitioner's felony offenses were in connection with the delivery of a health care item or service.

Petitioner was licensed to practice dentistry in Ohio.  From July 2007 to 2010, Petitioner was employed part-time as a dentist with MetroHealth Hospital System (MetroHealth), and was employed full-time with MetroHealth from 2010 to April 2016.  IG Ex. 3 at 7-8.  MetroHealth is a public health care system owned by Cuyahoga County, Ohio, and a Medicaid provider.  IG Ex. 3 at 1-2.  MetroHealth provided dental services through a

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division called MetroHealth Dental.  IG Ex. 3 at 1.  As an employee of MetroHealth, Petitioner was a public official/servant under Ohio law.  IG Ex. 3 at 8.

Petitioner incorporated a private dental clinic named Buckeye Family Dental (Buckeye) in or about April 2013, which was not part of MetroHealth.  IG Ex. 3 at 10.  Petitioner and another individual also owned and operated Noble Dental Clinic (Noble) from approximately 2009 through 2016.  IG Ex. 3 at 10.

Petitioner and another individual both agreed to give things of value to a MetroHealth official for favorable action from that official, who was Petitioner's supervisor at MetroHealth.  IG Ex. 3 at 24, 30-32, 36-37, 39-41.  One favorable action was the payment of increased bonuses.  IG Ex. 3 at 42-43.  Others were to allow Petitioner to work reduced hours as a dentist at MetroHealth when Petitioner was paid by MetroHealth as a full-time employee and to send dentists to work at Buckeye and Noble while being paid by MetroHealth.  IG Ex. 3 at 43-44.  Petitioner also bribed and provided kickbacks to the MetroHealth official who was his supervisor to refer dental patients (including Medicaid patients) to Buckeye, resulting in MetroHealth losing those patients as well as income from those patients.  IG Ex. 3 at 15, 74-77.  Through Buckeye, Petitioner billed Medicaid for the patients that MetroHealth referred to Buckeye.  IG Ex. 3 at 77.

While Petitioner appears to have mostly paid bribes during the course of his criminal conduct, Petitioner also demanded and accepted things of value from dentists applying for positions with MetroHealth.  If paid, Petitioner would influence the selection and retention of resident dentists at MetroHealth.  IG Ex. 3 at 47-57, 62.  Petitioner also assisted his supervisor at MetroHealth to use MetroHealth resources for the supervisor's personal business.  IG Ex. 3 at 64-70.

Petitioner argues that his convictions are not a basis for a mandatory exclusion under § 1320a-7(a)(3) because his case was "not a Healthcare Fraud case."  P. Br. at 2, 6.  Petitioner submitted a page from a transcript in his criminal proceeding where government counsel purports to state that Petitioner's criminal case is not a healthcare fraud case.  P. Letter Br. at 1-2; P. Ex. 6.

Petitioner's argument as to whether he committed healthcare fraud is not dispositive as to whether there is a basis for a mandatory exclusion in this matter.  For the IG to exclude Petitioner under 42 U.S.C. § 1320a-7(a)(3), Petitioner's felony offense must have been for conduct in connection with the delivery of a health care item or service.  To be "in connection with" the delivery of a health care item or service, there only needs to be a nexus or common-sense connection to the delivery of a health care item or service.  Charice D. Curtis, DAB No. 2430 at 5 (2011).

The record, as discussed above, is clear that most of Petitioner's criminal conduct had a connection to the delivery of healthcare items or services.  Petitioner was to provide a full

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day of work each day as a dentist for MetroHealth, something which he did not do.  His failure to provide services connects his crime to the delivery of services.  In a similar way, Petitioner illegally obtained free dental services from other MetroHealth dentists for use in his private dental offices, and Petitioner illicitly paid for MetroHealth patients to be sent to at least one of his dental practices.  He even billed Medicaid for providing those dental services.  While it is possible that the prosecutor did not characterize the criminal case against Petitioner as healthcare fraud, that does not mean the case was not in connection with the delivery of a health care item or service.

3. Petitioner was convicted of both conspiracy to commit mail/wire fraud and bribery as well actual mail/wire fraud and bribery.  Therefore, for purposes of 42 U.S.C. § 1320a‑7(a)(3), Petitioner's felony offenses are related to fraud, theft, embezzlement, breach of fiduciary responsibility, or other financial misconduct.

For a conviction to qualify as one mandating exclusion under 42 U.S.C. § 1320a-7(a)(3), it must be a felony relating to fraud, theft, embezzlement, breach of fiduciary responsibility or other financial misconduct.

The previous section of this decision highlights Petitioner's felonious conduct.  The Indictment characterizes much of this conduct as fraud, mail/wire fraud, or as an effort to defraud.  IG Ex. 3 at 12-13, 57-58, 64-65, 80-81.  Petitioner was also convicted of bribery.  IG Ex. 3 at 23, 46, 62-63, 73-74.

As indicated above, Petitioner's only argument is that he was not convicted of healthcare fraud.  P. Br. at 6; P. Letter Br. at 1-2.  However, § 1320a-7(a)(3) does not require that the conviction be related to "healthcare fraud."  Instead, it only needs to be related to fraud or other financial misconduct.

The terms "related to" and "relating to" under 42 U.S.C. § 1320a-7 simply mean that there must be a nexus or common-sense connection.  See James Randall Benham, DAB No. 2042 at 5-6 (2006) (internal citations omitted); see also Friedman v. Sebelius, 686 F.3d 813, 820 (D.C. Cir. 2012) (describing the phrase "related to" in another part of § 1320a-7 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).  Further,

in determining whether the requisite nexus exists, the "labeling of the offense under the state statute" is not determinative.  Berton Siegel, D.O., DAB No. 1467, at 7 (1994) (emphasis omitted).  We consider, as appropriate, "evidence as to the nature of an offense," such as the "facts upon which a conviction was predicated."  DAB No. 1467, at 6-7.  Thus, how an offense is labeled or classified under state

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law may very well be a relevant consideration, but it does not, alone, inform the [DAB]'s determination of whether or not the requisite nexus exists.  The [DAB] also looks to the factual allegations underpinning the offense with which a petitioner was charged and which form the basis for the requisite conviction.  It would follow, then, that the fact that Petitioner pled guilty only to PHL § 12-b(2), an unclassified misdemeanor, does not mean that we may not or do not examine the record of the criminal proceeding below, of which the Misdemeanor Information is a part, to determine whether there is indeed a nexus between the offense and patient neglect or abuse.

Robert C. Hartnett, DAB No. 2740 at 7 (2016).

The IG argues as follows in support of her conclusion that Petitioner's felonious conduct was related to fraud, theft, embezzlement, breach of fiduciary responsibility, or other financial crimes:

As part of his fraudulent schemes, Petitioner gave cash and other things of value to a senior executive at MetroHealth and MetroHealth Dental, in return for the senior executive allowing Petitioner to retain his full time salary at MetroHealth without requiring him to work a full-time schedule at MetroHealth.  I.G. Ex. 3 at 14, 24–45.  This allowed Petitioner to work at his privately owned dental clinics while being paid full-time wages by MetroHealth.  I.G. Ex. 3 at 43.  In addition, at Petitioner's request, the senior executive provided MetroHealth Resident Dentists to provide dental services at Petitioner's privately owned practices, at no expense to Petitioner and while these resident dentists were being paid by MetroHealth.  I.G. Ex. 3 at 44.

Petitioner also misused his position at MetroHealth to run a co-defendant's private business at MetroHealth locations, using MetroHealth money, property, time, and resources, at MetroHealth's expense and to the co-defendant's private and personal benefit.  I.G. Ex. 3 at 15, 64–70.  These fraudulent schemes resulted in the District Court ordering Petitioner to pay $897,934.48 to MetroHealth in restitution.  Petitioner committed all these criminal offenses against MetroHealth while owing MetroHealth a duty to act in its best interests and

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to provide it with his honest services as an employee of MetroHealth.  I.G. Ex. 3 at 8.

IG Br. at 8.

As stated in the previous section of this decision, the facts underlying Petitioner's convictions heavily involved Petitioner obtaining special benefits from his supervisor at the expense of MetroHealth, a government-owned healthcare entity that employed him (i.e., being paid for time that he did not work, receiving excessive bonuses, providing dental services at his private dental offices with dentists whose salaries were being paid by MetroHealth, and having MetroHealth's patients diverted to Petitioner's private dental office).  Petitioner in turn solicited and accepted bribes from dental applicants who wanted a job at MetroHealth or who were employed there and wanted to be retained.

There is no doubt that the record supports the conclusion that Petitioner's felony convictions were related to fraud, theft, embezzlement, breach of fiduciary responsibility, and/or other financial crimes.

4. Because the record supports the IG's determination that a mandatory exclusion must be imposed under 42 U.S.C. § 1320a-7(a)(3), Petitioner must be excluded for a minimum of five years.

I conclude that Petitioner's convictions meet the three elements for a mandatory exclusion under 42 U.S.C. § 1320a-7(a)(3).  Therefore, Petitioner must be excluded for at least five years.  42 U.S.C. § 1320a-7(c)(3)(B); 42 C.F.R. § 1001.102(a).

5. The 25-year length of exclusion imposed on Petitioner is not unreasonable given the three aggravating factors in this case and the absence of mitigating factors.

As indicated earlier, the length of exclusion of a mandatory exclusion may be longer than five years.  If the IG imposes a length of exclusion that is longer than five years, then it must be based on considering all relevant aggravating and mitigating factors listed in the regulations.  42 C.F.R. § 1001.102(b), (c).

The regulations provide a deferential standard when reviewing the IG's determination of the length of exclusion.  An administrative law judge may only determine whether that length is "unreasonable."  42 C.F.R. § 1001.2007(a)(1)(ii).  In the present case, as required by the regulations, the IG indicated in its exclusion notice that there were three aggravating factors supporting a 25-year length of exclusion.  IG Ex. 1; 42 C.F.R. § 1001.2002(c)(2).  I discuss each below.

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6. The District Court ordered Petitioner to pay MetroHealth $897,934.48 in restitution.  Therefore, Petitioner's acts resulting in conviction resulted in financial loss to MetroHealth in excess of $50,000.

The IG provided evidence that demonstrates the acts resulting in Petitioner's criminal conviction caused, or were intended to cause, a financial loss to a government program of $50,000 or more.  See 42 C.F.R. § 1001.102(b)(1).  Specifically, in the Judgment in a Criminal Case, the District Court ordered Petitioner to "pay restitution to MetroHealth in the aggregate amount of $897,934.48 as follows[:]  $143,928.57 joint and several with [three] codefendants[;] $661,176.91 joint and several with [two] codefendants[; and] $92,829.00 joint and several with [two] codefendants."  IG Ex. 5 at 6.

Petitioner disputes the amount of loss that MetroHealth incurred as a result of his felonious conduct.  Citing Petitioner Exhibits 1 through 5, Petitioner argues:  "The alleged victim, MetroHealth, did not suffer any financial loss, on the contrary, it enjoyed over $2.24 million of gross profit from my services, after my total compensation."  P. Br. at 6.  Petitioner explains that "[w]hen my final numbers are added up each year, the actual benefit to MetroHealth Hospital for my services is $2,245,476.00.  This shows that the alleged victim did not suffer any financial harm."  P. Letter Br. at 1.

The IG responds that Petitioner's argument is an impermissible collateral attack on Petitioner's conviction under 42 C.F.R. § 1001.2007(d) and that an order of restitution is evidence of the amount of financial loss caused by Petitioner's criminal conduct.  IG Reply at 4.

I agree with the IG that Petitioner cannot collaterally attack his underlying conviction and that it is well-established that an amount ordered as restitution constitutes proof of the amount of financial loss to a government agency or program or to one or more entities.  See, e.g., Juan de Leon, Jr., DAB No. 2533 at 5 (2013).  MetroHealth is a county health care system and certainly is a government agency or program, or other entity under 42 C.F.R. § 1001.102(b)(1).  Further, regardless of whether the restitution order is joint and several among Petitioner and his co-conspirators, Petitioner is legally responsible for the total amount.  See United States v. Ingles, 445 F.3d 830, 839 (5th Cir. 2006) (affirming joint and several restitution order where one co-defendant was ultimately responsible for more restitution than other co-defendant).  This comports with the regulations, which provide that the entire amount of financial loss is what provides a basis for an aggravating factor.  See 42 C.F.R. § 1001.102(b)(1) ("The entire amount of financial loss to [programs] will be considered regardless of whether full or partial restitution has been made.").

Regarding Petitioner's specific argument, he asserts that his work at MetroHealth yielded MetroHealth a profit when his salary is subtracted.  If I correctly understand this argument to mean that Petitioner's employment yielded MetroHealth gain even when

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considering Petitioner's criminal conduct, I find this argument to be specious.  Petitioner did not work all of the hours he was being paid to work, received inflated bonuses, poached patients from his employer, stole the services of dentists paid by MetroHealth and used them to generate income for his private dental practices, and assisted his supervisor to use MetroHealth resources for the benefit of his supervisor's personal business.  Just because MetroHealth was able to bill patients for more than the salary it paid Petitioner does not compensate MetroHealth for all the losses it incurred through Petitioner's illicit activities.  Of course MetroHealth charged patients more than Petitioner was being paid in salary – MetroHealth had to provide the entire infrastructure for that dental work to be performed.  The amount of money paid to MetroHealth as a result of the services Petitioner performed as an employee has no relevance to the loss Petitioner caused MetroHealth due to his wide-ranging illegal behavior.

Therefore, the IG has met her burden of proving financial loss to a government program of $50,000 or more.  The amount in this case, nearly 18 times the $50,000 threshold, provides strong support for a significant length of exclusion.

7. Petitioner's acts that resulted in conviction, or similar acts, were committed for more than one year, i.e., from January 2008 to about April 2016. 

In its exclusion notice, the IG asserted that the aggravating factor found at 42 C.F.R. § 1001.102(b)(2) (i.e., the acts that resulted in the conviction, or similar acts, were committed over a period of one year or more) was present in this case.  The IG indicated that "[t]he acts occurred from about January 2008 to about April 2016."  IG Ex. 1 at 2.

Petitioner neither disputed this in his hearing request nor in his subsequent filings.

The IG cites to facts alleged in Count 1 of the Indictment related to the conspiracy to commit racketeering as support for this aggravating factor.  IG Br. at 10.  Count 1 alleged that the criminal acts were committed "in or around January 2008, and continuing to in or around April 2016."  IG Ex. 3 at 13.  The jury found Petitioner guilty of Count 1.  IG Ex. 4 at 1.  The IG further argues:  "The considerable amount of time over which Petitioner perpetrated his various criminal schemes demonstrates that his lack of integrity was not 'short-lived' and further supports an enhancement to the mandatory minimum five-year period of exclusion."  IG Br. at 11.

I conclude that this aggravating factor supports a significant length of exclusion.  A review of the Indictment shows that Petitioner's numerous crimes took place throughout the dates encompassed by Count 1.  See IG Ex. 3.  For this aggravating factor to be considered, the criminal conduct must last at least a year.  In Petitioner's case, it lasted eight times as long.

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8. The District Court sentenced Petitioner to 121 months of incarceration.

Petitioner does not dispute that the District Court sentenced Petitioner to just over 10 years in prison.  IG Ex. 5 at 2; 42 C.F.R. § 1001.102(b)(5).

The length of Petitioner's prison sentence weighs heavily in favor of a lengthy exclusion.  A prison sentence of as little as nine months is relatively substantial for exclusion purposes.  Jason Hollady, M.D., DAB No. 1855 at 12 (2002).  Petitioner's 121‑month sentence is more than 13 times longer than that and represents a substantial period, which indicates the seriousness of Petitioner's offenses.

9. Petitioner did not prove the existence of any mitigating factors that would justify a reduction in the length of exclusion imposed by the IG.

Petitioner generally states that a mitigating factor was present in this case.  P. Br. at 3-4.  However, Petitioner did not discuss any mitigating factor listed in 42 C.F.R. § 1001.102(c) in his filings.  As discussed above, Petitioner argues that his criminal conduct did not result in loss to MetroHealth.  However, this is not a mitigating factor under the regulations.

10. The 25-year length of Petitioner's exclusion is reasonable based on the aggravating factors in this case.

Petitioner asserts that he should receive the minimum five-year length of exclusion permitted by law.  Hearing Req.; P. Br. at 6.

When considering the length of exclusion, "[t]he evaluation does not rest on the specific number of aggravating or mitigating factors or any rigid formula for weighing those factors, but rather on a case-specific determination of the weight to be accorded each factor based on a qualitative assessment of the circumstances surrounding the factors in that case."  Farzana Begum, M.D., DAB No. 2726 at 2 (2016) (emphasis added).  Above, I performed that qualitative assessment of the aggravating factors present in this case, noting that each factor was quantifiably well in excess of the minimum amounts required to increase the length of exclusion.  Petitioner's sentence is extremely long and shows the extent of his crimes.  The restitution is extremely high, showing the extent of the harm his crimes caused.  The extremely long period of his criminal conduct shows his proclivity to criminal conduct.  The quantity and type of convictions show the threat Petitioner poses to federal health care programs.

Petitioner abused his position as a public servant and misused a public entity to improperly profit at the expense of the public.  The IG was reasonable when it questioned whether Petitioner is sufficiently trustworthiness to participate in federal health care programs for a substantial length of time.

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11. The effective date of the exclusion is 20 days after the August 31, 2020 exclusion notice in this case.

Petitioner requests that his exclusion commence retroactively in October 2016 so that it could run contemporaneously with an apparent exclusion from the Medicaid program.  P. Br. at 6.

I am without authority to change the effective date of the exclusion.  The Social Security Act states that an exclusion will become effective at such time as may be specified in the regulations.  42 U.S.C. § 1320a-7(c)(1).  The regulations state that an exclusion is effective 20 days after the date on the notice of exclusion.  42 C.F.R. § 1001.2002(b).

In the present case, the exclusion notice is dated August 31, 2020.  IG Ex. 1 at 1.  Therefore, the effective date of the exclusion is 20 days after that date.

VII.  Conclusion

I affirm the IG's determination to exclude Petitioner for 25 years from participating in all federal health care programs under 42 U.S.C. § 1320a-7(a)(3).

• 1. Petitioner submitted these documents by mail, and Civil Remedies Division personnel uploaded all of them as a single document.  In the DAB E-File system, this filing appears as Document No. 4.  Petitioner properly marked and paginated each of the proposed exhibits.