Edwin L. Fuentes, DAB CR5424 (2019)

DECISION

Petitioner, Edwin L. Fuentes, is excluded from participating in Medicare, Medicaid, and all federal health care programs pursuant to section 1128(a)(1) of the Social Security Act (Act) (42 U.S.C. § 1320a-7(a)(1)) effective May 20, 2018. Petitioner’s exclusion for five years is required by section 1128(c)(3)(B) of the Act (42 U.S.C. § 1320a-7(c)(3)(B)). An additional period of exclusion of 10 years, for a total minimum exclusion of 15 years,1 is not unreasonable based upon the existence of three aggravating factors and no mitigating factors in this case.

I. Background

The Inspector General (IG) of the U.S. Department of Health and Human Services notified Petitioner by letter dated April 30, 2018, that he was being excluded from participation in Medicare, Medicaid, and all federal health care programs for a minimum period of 15 years. The IG advised Petitioner that he was being excluded pursuant to

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section 1128(a)(1) and (3) of the Act based on his conviction in the United States District Court for the Western District of Virginia (District Court). IG Exhibit (Ex.) 1.

Petitioner timely requested a hearing on July 2, 2018 (RFH). The case was assigned to me on July 11, 2018, to hear and decide. I convened a prehearing conference by telephone on July 26, 2018, the substance of which is memorialized in my Prehearing Conference Order and Schedule for Filing Briefs and Documentary Evidence dated July 26, 2018 (Prehearing Order). On September 10, 2018, the IG filed a motion for summary judgment and supporting brief (IG Br.) and IG Exs. 1 through 6. Petitioner filed a response in opposition to the IG motion for summary judgment on June 13, 2019 (P. Br.) with no exhibits. The IG filed a reply brief on June 28, 2019 (IG Reply). Petitioner filed a sur-reply on July 26, 2019 (P. Sur-reply), which is accepted. Petitioner did not object to my consideration of IG Exs. 1 through 6 and they are admitted.2

On July 3, 2019, Petitioner filed a motion requesting that further proceedings be stayed in this case pending action upon his complaint for mandamus, declaratory, and injunctive relief filed in the US District Court, District of Columbia (USDC DC) on or about July 1, 2019, a copy of which was filed as Exhibit A to the motion to stay. The motion for stay is denied. Petitioner seeks through his complaint in the USDC DC an order compelling the IG to grant Petitioner access to the same documents and records Petitioner sought by his requests for discovery before me. Petitioner failed to establish before me the relevance of any of the materials he was requesting. Discovery Rulings, May 14, 2019. Even if the USDC DC ordered the IG to provide Petitioner the access and documents he requests, the documents Petitioner seeks would not be made relevant and admissible before me. Accordingly, Petitioner has not stated good cause to delay a decision in this case pending action by the USDC DC.

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II. Discussion

A. Applicable Law

Section 1128(f) of the Act (42 U.S.C. § 1320a-7(f)) establishes Petitioner’s rights to a hearing by an administrative law judge (ALJ) and judicial review of the final action of the Secretary of Health and Human Services (the Secretary).

Pursuant to section 1128(a)(1) of the Act, the Secretary must exclude from participation in any federal health care program an individual convicted of a criminal offense related to the delivery of an item or service under Medicare or a state health care program.

Pursuant to section 1128(a)(3) of the Act, the Secretary must exclude from participation in any federal health care program an individual convicted of an offense that occurred after August 21, 1996 (the date of enactment of the Health Insurance Portability and Accountability Act of 1996), under federal or state law, in connection with the delivery of a health care item or service or with respect to any act or omission in a health care program, other than Medicare or Medicaid, operated by or financed in whole or in part by the federal, state, or local government, of a felony criminal offense related to fraud, theft, embezzlement, breach of fiduciary responsibility, or other financial misconduct.

The Secretary has promulgated regulations implementing these provisions of the Act. 42 C.F.R. § 1001.101(a), (c).3

Section 1128(c)(3)(B) of the Act provides that an exclusion imposed under section 1128(a) of the Act will be for a period of not fewer than five years. 42 C.F.R. § 1001.102(a). The Secretary has published regulations that establish aggravating factors that the IG may consider to extend the period of exclusion beyond the minimum five-year period, as well as mitigating factors that may be considered only if the minimum five‑year period is extended. 42 C.F.R. § 1001.102(b), (c).

The standard of proof is a preponderance of the evidence, and there may be no collateral attack of the conviction that provides the basis for the exclusion. 42 C.F.R. § 1001.2007(c), (d). Petitioner bears the burden of proof and the burden of persuasion on any affirmative defenses or mitigating factors, and the IG bears the burden on all other issues. 42 C.F.R. § 1005.15(c); Prehearing Order ¶ 4.

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B. Issues

The Secretary has by regulation limited my scope of review to two issues:

Whether there is a basis for the imposition of the exclusion; and

Whether the length of the exclusion is unreasonable.

42 C.F.R. § 1001.2007(a)(1).

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

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

1. Petitioner’s request for hearing was timely and I have jurisdiction.

There is no dispute that Petitioner timely requested a hearing. I conclude that I have jurisdiction pursuant to section 1128(f) of the Act and 42 C.F.R. pt. 1005. Petitioner had the right to request a hearing before an ALJ pursuant to 42 C.F.R. § 1001.2007(a)(1). Pursuant to 42 C.F.R. § 1001.2007(e), the Secretary has provided that the procedures of 42 C.F.R. pt. 1005 apply to any appeal, which includes a request for review by an ALJ. Pursuant to 42 C.F.R. § 1005.2(c), a request for hearing must be made in writing submitted to the Board (the “DAB” as defined by 42 C.F.R. § 1005.1). Although the regulation is not a model of clarity, it is apparent upon careful reading that the request for hearing is assigned to an ALJ of the Board for adjudication. The only ALJs assigned to the Board are in the Civil Remedies Division and this case was assigned to me by the delegate of the Chair of the Board on July 11, 2018. I conclude that I have jurisdiction to hear and decide this case and there is no issue related to jurisdiction before me that requires further discussion.

2. Summary judgment is appropriate in this case.

Pursuant to section 1128(f) of the Act, a person subject to exclusion has a right to reasonable notice and an opportunity for a hearing. The Secretary has provided by regulation that a sanctioned party has the right to a hearing before an ALJ, and both the sanctioned party and the IG have a right to participate in the hearing. 42 C.F.R. § 1005.2-.3. Either or both parties may choose to waive appearance at an oral hearing and to submit only documentary evidence and written argument for my consideration. 42 C.F.R. § 1005.6(b)(5). An ALJ may also resolve a case, in whole or in part, by summary judgment. 42 C.F.R. § 1005.4(b)(12).

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Summary judgment is appropriate in an exclusion case when there are no disputed issues of material fact and when the undisputed facts, clear and not subject to conflicting interpretation, demonstrate that one party is entitled to judgment as a matter of law. Tanya A. Chuoke, R.N., DAB No. 1721 (2000); David A. Barrett, DAB No. 1461 (1994); Robert C. Greenwood, DAB No. 1423 (1993); Thelma Walley, DAB No. 1367 (1992); Catherine L. Dodd, R.N., DAB No. 1345 (1992); John W. Foderick, M.D., DAB No. 1125 (1990). When the undisputed material facts of a case support summary judgment, there is no need for a full evidentiary hearing, and neither party has the right to one. Surabhan Ratanasen, M.D., DAB No. 1138 (1990); Foderick, DAB No. 1125. In opposing a properly supported motion for summary judgment, the nonmovant must allege facts that show there is a genuine dispute of material fact that affects the proponent’s prima facie case or that might establish a defense. The nonmovant may not rely upon mere allegations or denials to defeat a properly supported motion for summary judgment. To defeat a properly supported motion for summary judgment and proceed to a trial, the nonmovant must show there is a genuine dispute as to a material fact that requires determination by the fact finder. On summary judgment, the judge does not weigh the evidence or attempt to determine the truth. Rather, the judge accepts the nonmovant’s evidence as true and draws all permissible inferences in the nonmovant’s favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-57 (1986).

There is no genuine dispute of material fact in this case that precludes summary judgment on the issue of whether there is a basis for exclusion or the reasonableness of the period of exclusion.

In his request for hearing, Petitioner does not challenge that there is a basis for his exclusion. Petitioner requested ALJ review only of the reasonableness of the 15-year exclusion. RFH at 1. However, in his opposition to the IG motion for summary judgment, Petitioner seeks to challenge the application of section 1128(a)(3) of the Act as a basis for his exclusion. Petitioner also argues that the IG relied upon an improper finding of the amount of restitution ordered when considering the aggravating factor of loss to the government in determining to extend the period of exclusion to 15 years. Petitioner also argues that his right to due process was violated. P. Br. at 4. Petitioner specifically concedes that he was convicted within the meaning of section 1128(i) of the Act; that his conviction of health care fraud was an offense related to the delivery of a health care item or service under Medicare; and that he was ordered to pay restitution of $243,451.27. P. Br. at 4 n.2. Petitioner concedes that there is a basis for his exclusion pursuant to section 1128(a)(1) of the Act. Because Petitioner concedes there is a basis for his exclusion, further examination of whether or not section 1128(a)(3) is also a basis for exclusion is simply unnecessary. Further, the IG cites three aggravating factors that warrant extending the period of exclusion from the mandatory minimum exclusion of 5 years to 15 years:

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1. The acts for which Petitioner was convicted or similar acts caused or were intended to cause a loss of $50,000 or more to a government agency or program;

2. The criminal acts occurred over a period of one year or more; and

3. Petitioner was sentenced to incarceration.

The IG does not cite the fact that Petitioner was subject to mandatory exclusion under more than one provision of section 1128(a) of the Act as an aggravating factor. Indeed, aggravating factors that may be considered by the IG are specifically limited to only those established by 42 C.F.R. § 1001.102(b) and that regulation does not list as an aggravating factor that an individual is subject to mandatory exclusion under more than one provision of section 1128(a). Petitioner does not allege that there is any evidence to support an argument that the IG considered the fact that Petitioner was subject to exclusion under both section 1128(a)(1) and (3) as an aggravating factor. Accordingly, there is no genuine dispute of material fact that there is a basis for Petitioner’s exclusion pursuant to section 1128(a)(1) of the Act. There is also no genuine dispute that the IG did not improperly consider as aggravating that Petitioner might be subject to exclusion under both section 1128(a)(1) and (3).

Petitioner does not dispute that the mandatory minimum exclusion for participation in Medicare and all federal healthcare programs is five years. Petitioner also does not dispute the existence of two aggravating factors in this case. Petitioner does not dispute that he was sentenced to incarceration or that his criminal conduct occurred over a period of one year or more, or that these two aggravating factors established by 42 C.F.R. § 1001.102(b)(2) and (5) were properly considered by the IG. Petitioner also concedes that he was ordered to pay restitution of $243,451.27. P. Br. at 4 n.2. As discussed hereafter, restitution is good evidence of the amount of loss. The aggravating factor established by 42 C.F.R. § 1001.102(b)(1), is loss to a government agency of $50,000 or more. Therefore, Petitioner’s concession that he was ordered to pay restitution of $243,451.27 establishes the fact that loss to the government was $50,000 or more. The loss of $50,000 or more coupled with the undisputed fact that restitution was ordered to be made to Medicare among others (IG Ex. 5 at 6), establishes the aggravating factor authorized by 42 C.F.R. § 1001.102(b)(1) exists in this case. Accordingly, I conclude that there is no dispute of material fact related to the existence of the three aggravating factors considered by the IG in this case. As discussed in more detail hereafter, I have only limited discretion to re-determine a period of exclusion imposed by the IG under circumstances that do not exist in this case. Petitioner has offered no evidence that would tend to show the existence of any mitigating factor authorized to be considered by 42 C.F.R. § 1001.102(c). Accordingly, I conclude there are no genuine disputes of material fact and summary judgment is appropriate as to both the basis for Petitioner’s exclusion and the reasonableness of the 15-year exclusion.

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3. Petitioner’s exclusion is required by section 1128(a)(1) of the Act.

a. Undisputed Facts

On July 18, 2017, Petitioner was charged by information in the District Court with one count of health care fraud and one count of tax evasion. The count of health care fraud alleged that, beginning no later than May 2012 and continuing to December 2014, Petitioner knowingly, willfully, and unlawfully executed and attempted to execute a scheme to defraud health care programs including Optima, Virginia Premier, Aetna, Anthem, Medicare, and Medicaid of money owned by or under the custody of those programs. The count alleged that the fraud was in connection with the delivery of and payment for health care benefits and services. The count alleged that Petitioner knowingly caused false billing claims totaling approximately $998,228 to be paid by the health care programs to Petitioner’s medical practice. Petitioner’s acts were alleged to violate 18 U.S.C. § 1347. IG Ex. 2.

On July 18, 2017, Petitioner pleaded guilty to both counts of the information. IG Ex. 3. On January 9, 2018, judgment was entered finding Petitioner guilty pursuant to his guilty pleas.4 He was sentenced to concurrent 24-month terms in prison for each count. The District Court ordered Petitioner to pay total restitution of $1,859,963.40. IG Ex. 5.

Petitioner signed his plea agreement on June 6, 2017. IG Ex. 4 at 17. Petitioner agreed in his plea agreement to pay restitution of $998,228.40 as the amount of restitution for Count 1 of the Information (the fraud count) and he conceded that the victims listed in Count 1 suffered losses of at least $998,228.40. IG Ex. 4 at 5-6. Petitioner also stipulated to facts that support each factual allegation in the charges. IG Ex. 4 at 15.

b. Analysis

The IG cites section 1128(a)(1) of the Act as a basis for Petitioner’s mandatory exclusion. The statute provides in relevant part:

(a) MANDATORY EXCLUSION. – The Secretary shall exclude the following individuals and entities from participation in any Federal health care program (as defined in section 1128B(f)):

(1) CONVICTION OF PROGRAM-RELATED CRIMES. – Any individual or entity that has been convicted of a criminal

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offense related to the delivery of an item or service under title XVIII or under any State health care program.

Act § 1128(a)(1).

For an exclusion pursuant to section 1128(a)(1), the plain language of the Act requires that the Secretary exclude from participation in Medicare, Medicaid, and all federal health care programs any individual or entity: (1) convicted of a criminal offense; (2) where the offense is related to the delivery of an item or service; and (3) the delivery of the item or service was under Medicare or a state health care program. 

Petitioner does not dispute that he was convicted of health care fraud and sentenced. Petitioner specifically concedes that he was convicted within the meaning of section 1128(i) of the Act and that his conviction of health care fraud was an offense related to the delivery of a health care item or service under Medicare. P. Br. at 4 n.2. Therefore, Petitioner has conceded the elements that trigger mandatory exclusion under section 1128(a)(1) of the Act. Accordingly, I conclude that there is a basis for exclusion pursuant to section 1128(a)(1). Because Congress mandates exclusion, the IG and I have no authority to determine that Petitioner should not be excluded in this case.

Furthermore, because exclusion is mandated pursuant to section 1128(a)(1) of the Act, there is no reason to consider further whether mandatory exclusion pursuant to section 1128(a)(3) of the Act is also triggered in this case. The IG must exclude, and the possible existence of an additional basis for exclusion has no impact upon the requirement to exclude Petitioner in this case.

4. Pursuant to section 1128(c)(3)(B) of the Act, the minimum period of exclusion under section 1128(a) of the Act is five years.

I have concluded that a basis exist to exclude Petitioner pursuant to section 1128(a)(1) of the Act. Therefore, the IG must exclude Petitioner for a minimum period of five years pursuant to section 1128(c)(3)(B) of the Act. The IG has no discretion to impose a lesser period and I may not reduce the period of exclusion below five years.

The remaining issue is whether it is unreasonable to extend Petitioner’s exclusion by an additional 10 years for a total period of exclusion of 15 years.

5. Three aggravating factors are present that justify extending the minimum period of exclusion to 15 years.

My determination of whether the period of exclusion in this case is unreasonable turns on whether: (1) the IG has proven that there are aggravating factors; (2) Petitioner has proven that there are mitigating factors the IG failed to consider or that the IG considered

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an aggravating factor that does not exist; and (3) the period of exclusion is within a reasonable range.

The IG notified Petitioner that three aggravating factors authorized by 42 C.F.R. § 1001.102(b)(1), (2), (5) are present in this case and that those factors justify extending Petitioner’s exclusion by 10 years to a minimum exclusion of 15 years. IG Ex. 1 at 2. I conclude the three aggravating factors alleged by the IG are undisputed and supported by a preponderance of the evidence in this case. 

The first aggravating factor is that the crime of which Petitioner was convicted or similar acts, caused, or were intended to cause, a financial loss to a government agency or program of $50,000 or more. The evidence shows that the District Court determined total loss to eight government programs or other entities to be $1,859,963.40 and ordered restitution of that amount. IG Ex. 5 at 6. Petitioner concedes that he was ordered to pay $243,451.27 to Medicare. P. Br. at 4 n.2. Petitioner has a legal theory for why only the amount of restitution he paid to Medicare should be considered which I need not explore here. The amount of restitution Petitioner concedes he was ordered to pay to Medicare is 4.87 times the amount necessary for the aggravating factor to exist. It is well established that an amount ordered as restitution constitutes proof of the amount of financial loss to a government program. See e.g., Juan de Leon, Jr., DAB No. 2533 at 5 (2013); Craig Richard Wilder, DAB No. 2416 at 9 (2011) (“[R]estitution has long been considered a reasonable measure of program loss . . . .”). Considering only the amount of restitution Petitioner concedes he was ordered to pay to Medicare, the aggravating factor authorized by 42 C.F.R. § 1001.102(b)(1) clearly exists in this case.

The second authorized aggravating factor is that Petitioner’s crime occurred over a period of one year or more. Petitioner does not dispute that this aggravating factor exists in this case. The charge to which Petitioner pleaded guilty alleged that Petitioner’s criminal activity occurred beginning no later than May 2012 and continued until at least December 2014. IG Ex. 2 at 1. Petitioner admitted this fact by his guilty plea to the count of health care fraud, and no additional evidence is required to establish this aggravating factor under 42 C.F.R. § 1001.102(b)(2). IG Exs. 3; 5 at 1.

The third authorized aggravating factor under 42 C.F.R. § 1001.102(b)(5) is that the sentence imposed by the court included incarceration. The regulation does not set a minimum period of incarceration to be considered aggravating. Petitioner does not dispute that this aggravating factor exists. The evidence shows that the District Court sentenced Petitioner to 24 months of incarceration on each of the two counts to run concurrently. IG Ex. 5 at 2.

Petitioner argues that the IG failed to show that the government loss due to Petitioner’s crime amounted to $1,859,900. P. Br. at 4, 8-13; P. Sur-reply at 3-6. The IG notice of exclusion states that “[t]he court ordered you to pay approximately $1,859,900 in

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restitution.” IG Ex. 1 at 2. The evidence shows that the IG is correct as the District Court, in fact, ordered Petitioner to pay restitution of $1,859,963.40. IG Ex. 5 at 6. I interpret Petitioner’s argument to be that that IG incorrectly considered as aggravating that restitution amounted to approximately $1,859,000. However, Petitioner’s argument is in error. The IG may consider as an aggravating factor loss of $50,000 or more. Restitution ordered by a court is good evidence of the amount of the loss. Petitioner concedes he was ordered to pay more than $200,000 to Medicare alone (P. Br. at 4 n.2), significantly more than enough to establish the aggravating factor. Petitioner also concedes that the period of exclusion may be increased based on the existence of an aggravating factor that is shown more likely than not, i.e., by a preponderance of the evidence. P. Br. at 7. Petitioner concedes he was ordered to pay restitution to Medicare far in excess of $50,000; therefore, the aggravating factor is undisputed and supported by a preponderance of the evidence.

I conclude that the IG established three aggravating factors. The IG was authorized by the Secretary to rely upon these factors as grounds for extending Petitioner’s exclusion by 10 years for a total exclusion of 15 years.

6. Petitioner has not presented evidence or made allegations that tend to show any genuine dispute as to the existence of any mitigating factors authorized to be considered under the regulation.

If any of the aggravating factors authorized by 42 C.F.R. § 1001.102(b) justify an exclusion of longer than five years, as they do in this case, then mitigating factors may be considered as a basis for reducing the period of exclusion to no less than five years. 42 C.F.R. § 1001.102(c). The only authorized mitigating factors that I may consider are listed in 42 C.F.R. § 1001.102(c):

(1) In the case of an exclusion under § 1001.101(a), whether 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

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(3) The individual’s or entity’s cooperation with Federal or State officials resulted in –

(i) Others being convicted or excluded from Medicare, Medicaid and all other Federal health care programs,

(ii) Additional cases being investigated or reports being issued by the appropriate law enforcement agency identifying program vulnerabilities or weaknesses, or

(iii) The imposition against anyone of a civil money penalty or assessment under part 1003 of this chapter.

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(c); Prehearing Order ¶ 4.

Petitioner does not allege in briefing that there were mitigating factors in this case. In his request for hearing, Petitioner asserts that that there were no issues of patient care and reports show excellent patient care in underserved areas, Petitioner’s services are required in underserved communities, and Petitioner needs to work in order to pay restitution. RFH at 1. Even accepting these assertions as true for purposes of summary judgment, they are not mitigating factors I am permitted to consider under 42 C.F.R. § 1001.102(c).

Based on my review of the entire record, I conclude that Petitioner has failed to establish any mitigating factor that I am permitted to consider under 42 C.F.R. § 1001.102(c) to reduce the period of his exclusion.

7. Exclusion for 15 years is not unreasonable in this case.

Petitioner argues that summary judgment is not appropriate because the IG has not specified how she determined that a 15-year exclusion is reasonable. P. Br. at 15-17. Petitioner cites no authority supporting the assertion that the IG is required to present evidence as to the reasons for imposing a period of exclusion longer than the minimum period, other than establishing the aggravating factors authorized by 42 C.F.R. § 1001.102(b). Furthermore, Petitioner cites no authority for the proposition that the IG must present evidence as to how authorized aggravating factors were weighed when determining the period of exclusion the IG imposed. My review of the existence of aggravating or mitigating factors is certainly de novo, but my review cannot be de novo on issues for which no evidence is required to be presented.

The Secretary requires by regulation that the ALJ determine whether the length of exclusion imposed is “unreasonable,” if a period greater than the minimum period is

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imposed by the IG. 42 C.F.R. § 1001.2007(a)(1)-(2). The Departmental Appeals Board (Board) has interpreted the regulations to significantly limit the scope of ALJ review. The regulation states that the ALJ must determine whether the length of exclusion imposed is “unreasonable” without defining what is unreasonable or directing how to determine whether a period of exclusion is unreasonable. 42 C.F.R. § 1001.2007(a)(1)(ii). The drafters of the regulation explained that the intent of the regulation is to ensure that if the IG’s proposed period of exclusion is “within a reasonable range based on demonstrated criteria, the ALJ has no authority” to change the period of exclusion. 57 Fed. Reg. 3298, 3321 (Jan. 29, 1992). Again, the drafters provided no explanation of what are “demonstrated criteria.” The Board has determined that the role of the ALJ in exclusion cases is to conduct a de novo review of the facts related to the basis for the exclusion and the existence of aggravating and mitigating factors identified at 42 C.F.R. § 1001.102 and to determine whether the period of exclusion imposed by the IG falls within a “reasonable range.” de Leon, DAB No. 2533 at 4-5; Wilder, DAB No. 2416 at 8; Joann Fletcher Cash, DAB No. 1725 at 17 n.6 (2000). The Board explained that, in determining whether a period of exclusion is “unreasonable,” the ALJ is to consider whether such period falls “within a reasonable range.” Cash, DAB No. 1725 at 17 n.6. The Board cautions that whether the ALJ thinks the period of exclusion too long or too short is not the issue. The ALJ may not substitute his or her judgment for that of the IG and may only change the period of exclusion in limited circumstances. In John (Juan) Urquijo, DAB No. 1735 (2000), the Board concluded that if the IG considers an aggravating factor to extend the period of exclusion and that factor is not later shown to exist on appeal, or if the IG fails to consider a mitigating factor that is shown to exist, then the ALJ may make a decision as to the appropriate extension of the period of exclusion beyond the minimum. In Gary Alan Katz, R.Ph., DAB No. 1842 (2002), the Board suggested that when it is found that an aggravating factor considered by the IG is not proved before the ALJ, then some downward adjustment of the period of exclusion should be expected absent some circumstances that indicate no such adjustment is appropriate. The Board reasoned that when aggravating factors are considered by the IG as a reason to extend a period of exclusion, some part of the extended period of exclusion should be attributable to each aggravating factor considered. Because in Katz, the ALJ found one aggravating factor considered by the IG was not proved before the ALJ, the Board concluded that the period of exclusion imposed by the IG was no longer in the reasonable range and reassessed the period of exclusion. The Board had the opportunity to define the term “reasonable range” and describe how to weigh aggravating and mitigating factors, but it failed to do so. The Board did engage in weighing the remaining aggravating factors in Katz but did not explain the weighing in any detail or cite any authority for the process it employed in doing the weighing. Id. at 4-8. The Board, relying upon a prior Board decision and the preamble to the regulations, stated in a footnote that:

[A] “reasonable range” refers to a range of exclusion periods that is more limited than the full range authorized by the

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statute [five years to permanent exclusions for exclusion under section 1128(a) of the Act] and that is tied to the circumstances of the individual case. If the ALJ determines that the length of the exclusion imposed by the I.G. is within this range under the circumstance as found by the ALJ, he may not change it even if he believes that another exclusion period is more reasonable.

Id. at 5 n.4. The Board’s decision in Katz reflects its determination that it is the aggravating and mitigating factors that the Board and an ALJ consider in determining whether a period of exclusion is unreasonable. The Board’s decision also indicates that the facts and circumstances related to the aggravating factors are what are weighed when determining how each aggravating and mitigating factor affects whether a period of exclusion is unreasonable, i.e., outside the reasonable range. Clearly, it is not a simple process of counting the aggravating and mitigating factors, and considerable discretion remains for the Board and the ALJ to engage in the weighing process to decide what is unreasonable, though that weighing is significantly limited by the language of 42 C.F.R. § 1001.2007(a)(1)(ii) and the Board’s prior decisions on how the regulation is to be implemented. The IG determination of the weight given aggravating and mitigating factors is clearly entitled to receive some deference due to the regulatory standard for review adopted by notice and comment rule making, i.e., by regulation the issue is whether the period of exclusion is unreasonable. 42 C.F.R. § 1001.2007(a)(1)(ii). No further deference is required by the Act or regulations or recognized by the Board. In this case, however, it has not been shown that the IG considered aggravating factors that did not exist or failed to consider mitigating factors that did exist. Therefore, my discretion to reassess the period of exclusion is nil according to the Board.

Based on my de novo review, I conclude that a basis for exclusion exists under section 1128(a)(1) of the Act. The undisputed evidence establishes the three aggravating factors the IG relied on to impose the 15-year exclusion. IG Ex. 1 at 2. Petitioner has not presented evidence or alleged facts that tend to show any genuine dispute that there exists an authorized mitigating factor that the IG failed to consider. I conclude that a period of exclusion of 15 years is in a reasonable range and not unreasonable considering the existence of three aggravating factors and the absence of any mitigating factors. No basis exists for me to reassess the period of exclusion.

Petitioner argues that the 15-year exclusion in this case is unreasonable compared to other recent 15-year exclusions that involved more egregious facts. P. Br. at 8, 13-14. Petitioner’s arguments that his period of exclusion is disproportionate to the period of exclusion imposed in other cases is not an authorized basis for me to reassess his exclusion under decisions of the Board interpreting the regulations. Indeed, the Act and regulations impose no requirement upon the IG, me, or the Board to attempt to determine whether periods of exclusion are proportionate.

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I also conclude that Petitioner’s arguments he has been denied due process are without merit. P. Br. at 4, 17-19. The process due Petitioner is that established by the Act and the regulations at 42 C.F.R. pts. 1001 and 1005. Petitioner has not shown that he was entitled to any process in these proceedings that he has been denied. To the extent that Petitioner’s intent is to challenge either the Act or regulations, I have no authority delegated by the Secretary to address such challenges. 42 C.F.R. § 1005.4(c)(1).

Exclusion is effective 20 days from the date of the IG’s notice of exclusion to the affected individual or entity. 42 C.F.R. § 1001.2002(b).

III. Conclusion

For all of the foregoing reasons, Petitioner is excluded from participation in Medicare, Medicaid, and all other federal health care programs for a minimum period of 15 years, effective May 20, 2018.

• 1. Pursuant to 42 C.F.R. § 1001.3001, Petitioner may apply for reinstatement only after the period of exclusion expires.  Reinstatement is not automatic upon completion of the minimum period of exclusion.
• 2. Between November 12, 2018 and May 14, 2019, the docket reflects several filings related to discovery.  None of the filings merits discussion in this decision.  The discovery-related issues raised were resolved by my rulings and order issued May 14, 2019, titled “Rulings Granting Petitioner’s Request for Reconsideration, Denying Petitioner’s Motions to Compel, Denying Petitioner’s Request for Access to Records for 29 Unrelated Cases and Order Lifting Stay” (Discovery Rulings, May 14, 2019).  Petitioner’s request for further discovery in briefing on summary judgment is denied for reasons stated in the Discovery Rulings, May 14, 2019.  P. Br. at 14 n.4; Sur-reply at 3 n.1; 5 n.2.
• 3. Citations are to the 2017 revision of the Code of Federal Regulations (C.F.R.), unless otherwise stated.
• 4. The count of tax evasion of which Petitioner was convicted is not cited as a basis for Petitioner’s exclusion and is not considered further.