SUBJECT:

Marcia C. Smith, a/k/a

Marcia Ellison Smith,

Petitioner,

The Inspector General.

DECISION

Petitioner, Marcia C. Smith, a/k/a Marcia Ellison Smith, is excluded from participation in Medicare, Medicaid, and all other federal health care programs pursuant to section 1128(a)(1) of the Social Security Act (the Act) (42 U.S.C. � 1320a-7(a)(1)), effective September 20, 2005, based upon her conviction of a criminal offense related to the delivery of an item or service under Medicare or a state health care program. There is a proper basis for exclusion. Petitioner's exclusion for the minium period ⁽¹⁾ of five years is mandatory pursuant to section 1128(c)(3)(B) of the Act (42 U.S.C. � 1320a-7(c)(3)(B)). The presence of three aggravating factors and no mitigating factors support an extension of the period of exclusion to a minimum of 12 years.

I. Background

The Inspector General for the Department of Health and Human Services (the I.G.) notified Petitioner by letter, dated August 31, 2005, that she was being excluded from participation in Medicare, Medicaid, and all federal health care programs for the minimum period of 12 years, pursuant to section 1128(a)(1) of the Act. The basis cited for Petitioner's exclusion was her conviction, in the 184^th District Court of Harris County, Texas, of a criminal offense related to the delivery of an item or service under Medicare or a state health care program. See Act, section 1128(a)(1); 42 U.S.C. � 1320a-7(a)(1); 42 C.F.R. � 1001.101(a).

Petitioner timely requested a hearing by letter dated November 9, 2005. The case was assigned to me for hearing and decision on November 21, 2005. On January 18, 2006, I convened a prehearing telephonic conference, the substance of which is memorialized in my Order dated January 19, 2006. During the prehearing conference, Petitioner waived the right to an oral hearing and the parties agreed that this case may be decided upon the briefs and documentary evidence.

The I.G. filed an opening brief in support of exclusion on March 3, 2006 (I.G. Brief), with I.G. Exhibits (I.G. Exs.) 1 through 4. Petitioner filed her brief in opposition to exclusion on April 24, 2006 (P. Brief), with exhibits (P. Exs.) 1, and 3 through 7. ⁽²⁾ The I.G. filed a reply brief on May 8, 2006 (I.G. Reply). ⁽³⁾ No objection has been made to the admissibility of any of the proposed exhibits and I.G. Exs. 1 through 4, and P. Exs. 1 and 3 through 7 are admitted.

II. Discussion

A. Findings of Fact

The following findings of fact are based upon the uncontested and undisputed assertions of fact in the pleadings and the exhibits admitted. Citations may be found in the analysis section of this decision if not included here.

1. On October 28, 2004, in the 184^th District Court of Harris County, Texas, Petitioner's plea of no contest to a felony charge of aggregate theft from Texas Medicaid of more than $20,000 but less than $100,000 during the period December 4, 1995 through December 17, 2000, was accepted and deferred adjudication was granted. I.G. Ex. 1; P. Ex. 1, at 2.

2. Petitioner was sentenced to confinement for 180 days in the county jail, to pay a fine of $200, 10 years of supervision, and to pay restitution of $61,000. I.G. Ex. 1, at 3-5; P. Ex. 1, at 3.

3. The conduct for which Petitioner was convicted resulted in a loss of more than $5,000 to the Texas Medicaid program.

4. The acts for which Petitioner was convicted were committed over a period of one year or more.

5. Petitioner's sentence included confinement in the county jail for 180 days.

6. The I.G. notified Petitioner by letter dated August 31, 2005, that she was being excluded from participation in Medicare, Medicaid, and all federal health care programs for the minimum period of 12 years, pursuant to section 1128(a)(1) of the Act.

7. Petitioner timely requested a hearing by letter dated November 9, 2005.

B. Conclusions of Law

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

2. Petitioner was convicted of a criminal offense related to the delivery of an item or service under Medicare or Medicaid within the meaning of section 1128(a)(1) of the Act.

3. There is a basis for Petitioner's exclusion pursuant to section 1128(a)(1) of the Act.

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

5. The I.G. has shown by a preponderance of the evidence the aggravating factor established by 42 C.F.R. � 1001.102(b)(1), that the acts for which Petitioner was convicted resulted in a loss of $5,000 or more to a government program or one or more entities.

6. The I.G. has shown by a preponderance of the evidence the aggravating factor established by 42 C.F.R. � 1001.102(b)(2), that the acts for which Petitioner was convicted were committed over a period of one year or more.

7. The I.G. has shown by a preponderance of the evidence the aggravating factor established by 42 C.F.R. � 1001.102(b)(5), that the sentence imposed included incarceration.

8. Petitioner has not established by a preponderance of the evidence any of the mitigating factors that I am authorized to consider under 42 C.F.R. � 1001.102(c).

9. Petitioner's exclusion for five years is mandatory pursuant to section 1128(c)(3)(B) of the Act (42 U.S.C. � 1320a-7(c)(3)(B)).

10. Exclusion of Petitioner for an additional period of 7 years, a total minimum period of exclusion of 12 years, is not unreasonable based upon the three aggravating factors in this case.

11. Petitioner's exclusion began on September 20, 2005, the twentieth day after the August 31, 2005-I.G. notice of exclusion. 42 C.F.R. � 1001.2002.

C. Issues

The Secretary of the Department of Health and Human Services (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).

The standard of proof is a preponderance of the evidence and there may be no collateral attack of the conviction that is the basis for the exclusion. 42 C.F.R. �� 1001.2007(c) and (d). Petitioner bears the burden of proof and persuasion on any affirmative defenses or mitigating factors and the I.G. bears the burden on all other issues. 42 C.F.R. �� 1005.15(b) and (c).

D. Law Applicable

Petitioner's right to a hearing by an administrative law judge (ALJ) and judicial review of the final action of the Secretary is provided by section 1128(f) of the Act (42 U.S.C. � 1320a-7(f)). Petitioner's request for a hearing was timely filed and I do have jurisdiction.

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

Section 1128(c)(3)(B) of the Act provides that an exclusion imposed under section 1128(a) of the Act shall be for a minimum period of five years. Pursuant to 42 C.F.R. � 1001.102(b), the period of exclusion may be extended based on the presence of specified aggravating factors. Only if the aggravating factors justify an exclusion of longer than five years may mitigating factors be considered as a basis for reducing the period of exclusion to no less than five years. 42 C.F.R. � 1001.102(c).

E. Analysis

1. There is a basis for Petitioner's exclusion pursuant to section 1128(a)(1) of the Act.

The I.G. cites section 1128(a)(1) of the Act as the basis for Petitioner's mandatory exclusion. The statute provides:

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

The statute requires the Secretary to exclude from participation 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 offense occurred in connection with the delivery of a health care item or service under Medicare or Medicaid.

Petitioner does not dispute that she was convicted of a criminal offense within the meaning of section 1128(i) of the Act by virtue of her nolo contendere plea which was accepted by Judge Jan Krocker of the 184^th Judicial District Court of Harris County, Texas on October 28, 2004. P. Brief at 4; P. Ex. 1, at 2. Petitioner does, however, object to the I.G.'s characterization that Petitioner has a conviction under Texas state law as there is no such conviction according to Petitioner. Petitioner indicates that she objects only for purposes of clarity of the record rather than for any substantive reason that would affect this decision. P. Brief at 2. Petitioner's objection is noted, but it is not necessary for purposes of this decision for me to decide whether Petitioner's conviction would be characterized as such under state law. It is the Act that controls in this case and it is undisputed that Petitioner has a "conviction" within the meaning of the Act. It is also undisputed that Petitioner's conviction within the meaning of the act was for an offense related to the delivery of an item or service under Medicare or Medicaid.

Accordingly, there is a basis for Petitioner's exclusion pursuant to section 1128(a)(1) of the Act.

2. Pursuant to section 1128(c)(3)(B) of the Act, the minimum period of exclusion under section 1128(a) is five years and an additional period of exclusion of seven years, for a total minimum period of exclusion of 12 years, is not unreasonable in this case based on the presence of three aggravating factors and no mitigating factors.

Petitioner has not disputed that the minimum period of an exclusion pursuant to section 1128(a)(1) is five years as mandated by section 1128(c)(3)(B), if I determine Petitioner is subject to mandatory exclusion. P. Brief at 5. I have found there is a basis for Petitioner's exclusion pursuant to section 1128(a)(1) and the minimum period of exclusion is thus five years.

What Petitioner disputes in this case is whether or not the I.G. has shown the three aggravating factors alleged and the "nonexistence" of mitigating factors. Petitioner also argues that the Secretary's determination that only those mitigating factors listed in the regulation at 42 C.F.R. � 1001.102(c) may be considered "violates her rights to due process, is designed to be punitive, is arbitrary and capricious, and is unreasonable." P. Brief at 6.

Pursuant to 42 C.F.R. � 1001.102(b), the period of exclusion may be extended based on the presence of any of nine aggravating factors. The I.G. bears the burden of proving any aggravating factors by a preponderance of the evidence. 42 C.F.R. �1005.15(b) and (c), 1001.2007(c). In this case, the I.G. alleges the following three aggravating factors:

(1) Petitioner's acts that resulted in her conviction resulted in a loss of more than $5,000 to the Texas Medicaid Program;

(2) The acts for which Petitioner was convicted were committed over a period of one year or more; and

(3) Petitioner's sentence included incarceration.

a. The preponderance of the evidence is that Petitioner's acts for which she was convicted resulted in a loss of more than $5,000 to the Texas Medicaid program.

The I.G. points to three pieces of evidence to support the existence of this aggravating factor: the Texas court's order deferring adjudication of guilt indicates that Petitioner was sentenced for the charge "Theft - Government Contract $20,000 - $100,000" (I.G. Ex. 1, at 2); the presentence investigation report states that Petitioner's false claims totaled $61,445.02 (I.G. Ex. 2, at 3); and the court ordered Petitioner to pay restitution of $61,000 to the Texas Medicaid Fraud Control Unit (I.G. Ex. 1, at 4).

The evidence is clear in this case. Petitioner was charged under Texas law with aggregate theft, more specifically it was charged that Petitioner was in a contractual relationship with the State of Texas for purposes of providing Medicaid services at the time of the offenses and that she wrongfully appropriated to her own custody, possession, or control, i.e., stole, property of a value over $20,000 but less than $100,000. I.G. Ex. 1, at 7. On February 18, 2005, Judge Krocker signed a form titled "Conditions of Community Supervision" in which she specifically states that the evidence substantiated Petitioner's guilt of the felony offense of "theft - government contract $20,000 - $100,000." I.G. Ex. 1, at 2-3. The transcript of the sentencing proceeding on February 18, 2005 shows that the judge found that there was sufficient evidence of guilt but no finding was entered. I.G. Ex. 4, at 19 (Sentencing transcript at page 7). The docket sheet provided by Petitioner also shows that the judge found "sufficient evidence of guilt." P. Ex. 1, at 2. Petitioner's evidence also shows that she signed a stipulation that if put to its proof and the state called the witnesses they would testify to facts that support the charge that she stole between $20,000 and $100,000 through her contractual relationship with Texas Medicaid. P. Ex. 1, at 6-7. In her objections to the presentence report to the Texas court, Petitioner admits that, over five years, there was improper billing to Texas Medicaid of more than $20,000 but less than $100,000. P. Ex. 3, at 4. She further admits in her objections to the presentence report that she "knows her billings were fraudulent" and "resulted in her being paid money that she did not earn." P. Ex. 3, at 5.

Based upon the evidence submitted by the I.G. and Petitioner, I conclude that the preponderance of the evidence shows that the conduct for which Petitioner was convicted resulted in a loss of more than $5,000 to the Texas Medicaid program. Contrary to Petitioner's argument (P. Brief at 7-8), the regulation does not require the I.G. to prove the exact amount of the loss, but only that it exceeded $5,000. 42 C.F.R. � 1001.102(c)(1).

b. The preponderance of the evidence shows that the acts for which Petitioner was convicted were committed over a period of one year or more.

Petitioner argues that the I.G. has not "conclusively" shown that the conduct for which Petitioner was convicted occurred over a period of one year or more. P. Brief at 8-10. This argument is unpersuasive when considered in light of the evidence. As already noted, the Texas state court judge found sufficient evidence of guilt. I.G. Ex. 1, at 2-3; I.G. Ex. 4, at 19 (Sentencing transcript at page 7); P. Ex. 1, at 2. Petitioner's evidence shows that she signed a stipulation that if put to its proof and the state called the witnesses they would testify to facts that support the charge that she stole between $20,000 and $100,000 through her contractual relationship with Texas Medicaid during the period December 4, 1995 through December 17, 2000. P. Ex. 1, at 6-7. In her objections to the presentence report to the Texas court, Petitioner admits that, over five years, there was improper billing to Texas Medicaid of more than $20,000 but less than $100,000. P. Ex. 3, at 4. Petitioner may not collaterally attack the conviction that is the basis for the exclusion in this forum. 42 C.F.R. � 1001.2007(d). Furthermore, the I.G. has the burden to show the aggravating factor by a preponderance of the evidence (42 C.F.R. � 1001.2007(c)), not "conclusively" as Petitioner suggests. I find that the preponderance of the evidence shows that Petitioner's offenses were committed over a period of one year or more.

c. It is undisputed that Petitioner's sentence included incarceration.

Petitioner does not dispute that she was sentenced to be confined and that confinement was "incarceration" within the meaning of 42 C.F.R. � 1001.2. P. Brief at 10. In fact, Judge Krocker sentenced Petitioner to serve 180 days in the county jail. P. Ex. 1, at 3; I.G. Ex. 4, at 31-32 (Sentencing transcript at pages 58-59). Petitioner argues, however, that due process and equal protection require that the I.G. consider the circumstances surrounding the imposition of confinement, i.e., Judge Krocker is known for tough sentences in a county that is known to be tough on crime. Petitioner cites no law in support of this argument and I find it unpersuasive. Petitioner is not permitted to collaterally attack her conviction or sentence before me and I find no authority or requirement to look at the motives of the sentencing judge. I note that Judge Krocker granted deferred adjudication and did not order prison for Petitioner despite her on the record statement that "I really didn't buy the no contest aspect of your defense." I.G. Ex. 4, at 31 (Sentencing transcript at page 58).

It is undisputed that Petitioner was sentenced to incarceration. Accordingly, this aggravating factor has been established.

d. Petitioner has not established any mitigating factor by a preponderance of the evidence.

Section 1001.102(c) of 42 C.F.R. provides that if any of the aggravating factors justify a period of exclusion longer than five years, then mitigating factors may be considered as a basis for reducing the period of the exclusion to no less than five years. The following factors may be considered as mitigating and a basis for reducing the period of exclusion:

(1) the individual or entity being excluded was convicted of three or fewer misdemeanor offenses, and the entire amount of financial loss to Medicare and/or the state health care programs due to the criminal acts is less than $1,500;

(2) the record of the criminal proceedings shows that the court determined that the individual to be excluded had a mental, emotional, or physical condition before or during the commission of the offense that reduced his or her culpability; or,

(3) the individual or entity to be excluded cooperated with Federal or State officials with the result that:

(i) others were convicted or excluded from Medicare, Medicaid, or other federal health care programs,

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

(iii) a civil money penalty or assessment was imposed under part 1003 of this chapter.

Evidence which does not relate to an aggravating factor or a mitigating factor is irrelevant to determining the length of an exclusion. The burden is upon Petitioner to show the presence of mitigating factors. 42 C.F.R. � 1005.15; Darren James, D.P.M., DAB No. 1828 (2002).

Petitioner argues that the Secretary's determination that only those mitigating factors listed in the regulation at 42 C.F.R. � 1001.102(c) may be considered "violates her rights to due process, is designed to be punitive, is arbitrary and capricious, and is unreasonable." P. Brief at 6, 16-21. I am bound by the Secretary's regulations and my jurisdiction is limited by regulation to the issues specified above and does not extend to constitutional challenges to the Act or the Secretary's regulations. 42 C.F.R. � 1005.4(c)(1). ⁽⁴⁾

Petitioner also argues that the I.G. failed to "demonstrate the nonexistence of mitigating factors." P. Brief at 11-16. The regulation is clear that Petitioner bears the burden of proof and persuasion on any affirmative defenses or mitigating factors (42 C.F.R. �1005.15(b)(1)), i.e., Petitioner must offer evidence of the existence of the mitigating factor. The burden is not upon the I.G. with respect to mitigating factors. Rather, the issue is whether Petitioner has met her burden to establish any mitigating factor.

Petitioner urges that she is entitled to my consideration of the mitigating factor established by 42 C.F.R. � 1001.102(c)(2), i.e., the trial judge considered that Petitioner was less culpable due to a mental, emotional, or physical condition before or during the commission of the offense. Petitioner argues that Judge Krocker "implicitly determined Petitioner had a mental, emotional or physical condition before or during the commission of the offense that reduced her culpability" based on the fact that Judge Krocker deferred entering a finding of guilt and granted community supervision. P. Brief at 13. Certainly, the record before me contains evidence that Petitioner suffers from multiple maladies and this information was before Judge Krocker. See, e.g., P. Ex. 3, at 9, 59-61; P. Ex. 4; I.G. Ex. 4, at 29 (Sentencing transcript at pages 49-50). An examination of the language of 42 C.F.R. � 1001.102(c)(2) reveals that three elements must be present in the sentencing record to invoke the mitigating factor: 1) a finding that the individual suffered from a mental, emotional, or physical condition; 2) a finding that the individual suffered from the condition before or during the commission of the offenses; and 3) a finding that the condition reduced the individual's culpability. See Joseph M. Rukse, Jr., R.Ph., DAB No. 1851 (2002); Paul G. Klein, D.P.M., DAB CR317 (1994). In Arthur C. Haspel, D.P.M., DAB No. 1929 (2004), an appellate panel of the Departmental Appeals Board (Board) clarified that the regulation does not require that the sentencing court make explicit findings as to these elements, but that "it is sufficient to review the sentencing record as a whole and determine whether it would be reasonable to infer from the entire record that the presiding judge had made the determinations required by the regulation as part of the sentencing process." Id. at 4.

In this case, the evidence shows that Petitioner had mental, emotional, or physical conditions and that she had the conditions before and/or during the commission of the offense. The missing element is whether or not Judge Krocker considered Petitioner to be less culpable for her offenses due to the conditions. There is no explicit finding and Petitioner would have me draw the inference that the Board allowed in Haspel. I cannot draw that inference in this case. Based on my review of all the evidence including the transcript of the sentencing proceeding, there is no indication that Judge Krocker considered Petitioner less culpable due to any medical condition (mental, emotional or physical) despite the fact that such evidence was of record before the judge. Indeed, in closing argument on sentencing, Petitioner's attorney never mentioned Petitioner's health issues as a basis for deferred adjudication. I.G. Ex. 4, at 30 (Sentencing transcript at pages 51-53). Further in examining his client during the sentencing proceeding, Petitioner's counsel asked her whether she had been diagnosed as suffering from depression. Petitioner agreed she had the diagnosis but testified that it had not hurt her career in any fashion. While defendant's objections to the presentence report lists her ailments (P. Ex. 3, at 9, 59-61) and she offers numerous excuses for why billing errors occurred, it is never specifically argued that she was less culpable due to her medical problems. Thus, while there is some evidence that Petitioner represented to investigators that her medical problems affected her oversight of her Medicaid billings, this was never argued to Judge Krocker as a reason to find Petitioner less culpable or the basis for a lesser sentence or deferred adjudication.

Accordingly, I conclude that Petitioner has not established the mitigating factor under 42 C.F.R. � 1001.102(c)(2).

Petitioner also asserts that she is entitled to consideration of the mitigating factor under 42 C.F.R. � 1001.102(c)(3)(iii) arguing that her cooperation with state officials resulted in additional cases being investigated or reports being issued by appropriate law enforcement officials identifying program vulnerabilities or weaknesses. P. Brief at 14. Petitioner correctly states that she submitted to interviews by state investigators and turned over her Medicaid patient files for review. Petitioner clarifies that the additional cases investigated were all Medicaid claims submitted by Petitioner. P. Brief at 15. The reports that were issued, which identified program vulnerabilities or weaknesses, were the reports issued relating to the investigation of Petitioner at P. Exs. 4 and 5. P. Brief at 15-16. The question is whether this is the kind of cooperation that constitutes a mitigating factor under the regulation.

In Stacey R. Gale, the Board elaborated on the petitioner's burden related to proving a mitigating factor under 42 C.F.R. � 1001.102(c)(3):

Thus, it is Petitioner's responsibility to locate and present evidence to substantiate the existence of any alleged mitigating factor in her case. In alleging the existence of the factor at 42 C.F.R. � 1001.102(c)(3)(ii), Petitioner must demonstrate that she cooperated with a state or federal official and this cooperation resulted in "[a]dditional cases being investigated." As is apparent from the foregoing, the I.G. does not have the responsibility to prove the non-existence of the mitigating factor under the regulation. For example, the 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 her cooperation with a state or federal official resulted in additional cases being investigated.

Stacey R. Gale, DAB No. 1941, at 9 (2004). The Board went on to explain that mere cooperation is not enough, the petitioner must also show that the cooperation resulted in additional cases being investigated or reports being issued. The regulation does not "authorize" the I.G. to independently determine whether or not state or federal investigators should have opened an investigation or issued a report. The Board found that the regulation requires a petitioner to show that law enforcement officials actually exercised discretion and began a new investigation or issued a report as a result of a petitioner's cooperation.

The rule is not designed to reward individuals who may have provided evasive, speculative, unfounded or even spurious information that proved to be so useless that the government official was unable even to open a new case for investigation. Rather, the regulation is designed to authorize mitigation for significant or valuable cooperation that yielded positive results for the state or federal government in the form of a new case actually being opened for investigation or a report actually being issued.

Id. at 10-11. The Board further explained that the regulation requires the cooperation to be validated by the fact that investigators opened a "new case" rather than simply providing investigators additional information related to an ongoing case. Id. at 14, 17.

The Board did not specifically address whether it is sufficient for the target of an investigation to give information against itself that leads to an expanded or even a new investigation or reports that show program weaknesses and vulnerabilities. However, it is clear to me from Gale, and the analysis of the Board in that case, that what the regulation contemplates is a target giving information which results in the opening of a new case against another potential offender, or leads to reports being issued other than investigative reports about the target's own case. My reading of the language of the regulation is consistent with such a requirement. Thus, while it is apparent that Petitioner did cooperate in the investigation of her own case, Petitioner's was not the kind of cooperation required to establish a mitigating factor under 42 C.F.R. � 1001.102(c)(3). Petitioner provided information that expanded the investigation of her and the evidence does not show that any new case was opened against her or another. Further it is clear that the reports Petitioner points to in this case were reports documenting her misconduct and not reports identifying "program weakness or vulnerabilities" as specified in the regulation.

Accordingly, I conclude that Petitioner has not established a mitigating factor under 42 C.F.R. � 1001.102(c)(3).

e. Exclusion for 12 years is not unreasonable in this case.

The Board has made clear that the role of the ALJ in exclusion cases is to conduct a "de novo" review as to the facts related to the basis for the exclusion and the facts related to the existence of aggravating and mitigating factors identified at 42 C.F.R. � 1001.102. See Joann Fletcher Cash, DAB No. 1725, at 19 n.9 (2000) ⁽⁵⁾, and cases cited therein. The regulation specifies that I must determine whether the length of exclusion imposed is "unreasonable" (42 C.F.R. � 1001.2007(a)(1)). The Board has explained that, in determining whether a period of exclusion is "unreasonable," I am to consider whether such period falls "within a reasonable range." Cash, DAB No. 1725 n.6. The Board cautions that whether I think the period of exclusion too long or too short is not the issue. I am not to substitute my judgment for that of the I.G. and may only change the period of exclusion in limited circumstances. In John (Juan) Urquijo, DAB No. 1735 (2000), the Board made clear that if the I.G. considers an aggravating factor to extend the period of exclusion and that factor is not later shown to exist on appeal, or if the I.G. 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 suggests that, when it is found that an aggravating factor considered by the I.G. is not proved before the ALJ, then some downward adjustment of the period of exclusion should be expected absent some circumstance that indicate no such adjustment is appropriate. The Katz panel did not elaborate upon the weight to be given individual aggravating factors, or how my de novo review and assessment of the weight to be given to proven aggravating factors is related to the weight the I.G. assigned those same factors.

I have found three aggravating factors in this case and no mitigating factors. I have not found that the I.G. considered an aggravating factor that is not established by the evidence, or that the I.G. failed to consider a mitigating factor that Petitioner has shown existed. Reassessment of the period of exclusion is not required. Furthermore, I find that a 12-year exclusion is within a reasonable range. The evidence supports a conclusion that Petitioner's conduct occurred over a period of nearly five years; Petitioner unlawfully collected more than $60,000 from Texas Medicaid and there is some evidence that she collected much more; and, while her confinement in the county jail was only 180 days, the Texas trial judge found it appropriate to subject Petitioner to supervision for 10 years. Furthermore, Petitioner made a judicial admission that she committed the crimes, but to this date she offers excuses for why this was an oversight on her part rather than a real crime (see I.G. Ex. 4, at 22-29) - not a good indication that Petitioner has accepted responsibility for her criminal acts or has begun down the road of rehabilitation. My conclusion that a 12-year exclusion is not unreasonable.

II. Conclusion

For the foregoing reasons, Petitioner is excluded from participation in Medicare, Medicaid and all federal health care programs for a period of 12 years, effective September 20, 2005, 20 days after the August 31, 2005-I.G. notice of exclusion.

Keith W. Sickendick

Administrative Law Judge

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 period of exclusion.

2. No P. Ex. 2 was filed.

3. The I.G. filed a motion for "summary affirmance" and a brief in support of its motion for summary affirmance. Petitioner styled her pleadings as an "opposition" to the I.G.'s motion for summary affirmance and a "cross-motion for summary judgment." However, given the waiver of an oral hearing during the prehearing conference, this decision is clearly not a "summary affirmance" and it also is not a "summary judgment." Rather this is a decision on the merits based upon the briefs of the parties and the documentary evidence they have filed as agreed during the prehearing conference.

4. Petitioner takes an approach that the regulations are unconstitutional because they prevent me from considering mitigating factors other than those specified in the regulation. In this case, Petitioner would have me consider that Petitioner is deprived from working in healthcare in any capacity for 12 years. While this is not a mitigating factor, the unreasonableness of the length of exclusion is a matter I specifically consider. Petitioner also argues that Petitioner is deprived of her ability to maintain her professional reputation and suffers a stigma of exclusion for an extended period. I note that Petitioner's public criminal proceedings in the State of Texas no doubt reflected negatively upon her professional reputation and I do not find persuasive the argument that her exclusion will add significantly to that stigma. Petitioner also argues that both the trial judge and prosecutor wanted Petitioner to continue to work as a counselor but in fact the trial judge simply noted that she wanted Petitioner to work in order to pay restitution. The judge and prosecutor were obviously unaware that federal law would require Petitioner's exclusion from Medicare and Medicaid for a minimum of five years. Petitioner would have me consider the 22 letters from family, friends, professional colleagues, and former patients that the trial judge considered before she imposed 180 days confinement and 10 years probation. The letters all reflect the opinions of people who purportedly knew Petitioner while her offense was on-going but may have been unaware of Petitioner's criminal conduct. The letters do not reflect that Petitioner is a trustworthy person for participation in Medicare or Medicaid. Finally, Petitioner argues that her 12-year exclusion is tantamount to a life-time exclusion because she'll be almost 71 at the end of the period of exclusion. I recognize that because reinstatement is not automatic, Petitioner may be older than 71 if she is reinstated. The I.G. is authorized to impose permanent exclusion but chose not to in this case.

5. Footnote 6 at http://www.hhs.gov/dab/decisions/dab1725.html and footnote 9 in the original decision and Westlaw�.