SUBJECT:

Rajitha Goli, M.D., a/k/a Rajitha Bijanki,

Petitioner,

The Inspector General

DECISION

Rajitha Goli, M.D., a/k/a Rajitha Bijanki (Petitioner), 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 (Act) (42 U.S.C. § 1320a-7(a)(1)), effective June 19, 2003, based upon her conviction for one count of health care fraud. There is a proper basis for exclusion. 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)). Further, extension of the minimum period of exclusion by 15 years, for a total period of 20 years, is not unreasonable given the presence of five aggravating factors.

I. PROCEDURAL HISTORY

Petitioner was notified of her exclusion by letter dated May 30, 2003. The Inspector General (I.G.) cited section 1128(a)(1) of the Act as the basis for Petitioner's exclusion. The I.G. also notified Petitioner that she was being excluded for the statutory minimum period of 5 years and an additional 15 years based on the I.G.'s finding that such extension was warranted by the existence of 6 aggravating factors. Petitioner requested a hearing to challenge the I.G.'s action by letter dated June 24, 2003. On July 8, 2003, the case was assigned to me for hearing and decision. On October 6, 2003, I conducted a telephonic prehearing conference, the substance of which is memorialized in my order of October 14, 2003. During the prehearing conference, Petitioner was advised of her right to have an attorney assist her in this proceeding at no expense to the government. Petitioner has elected to proceed without counsel. Counsel for the I.G. indicated during the conference that the I.G. believed summary judgment would be appropriate in this case. Pursuant to the briefing schedule agreed to by the parties and set forth in my order of October 14, 2003, the I.G. filed a motion for summary judgment and supporting brief on November 14, 2003 (I.G. Brief) with I.G. exhibits (I.G. Ex.) 1 through 6. Petitioner filed a brief in opposition on December 13, 2003 (P. Brief) with Petitioner's exhibits (P. Ex.) 1 through 3. The I.G. filed a reply on January 15, 2004 (I.G. Reply). No objections were made to any of the proffered exhibits. Accordingly, I.G. Exs. 1 through 6 and P. Exs. 1 through 3 are admitted. The parties indicate in their respective briefs that they waive oral hearing and agree this case may be decided based on written submissions and documentary evidence in lieu of an oral hearing. I.G. Brief at 2; P. Brief at 1.

II. FINDINGS OF FACT

The following findings of fact are based upon the uncontested and undisputed assertions of fact in the parties' pleadings and the exhibits admitted.

1. Petitioner was convicted, pursuant to her guilty plea, by the United States District Court, District of Nebraska, of one count of health care fraud in violation of 18 U.S.C. § 1347, which offense occurred on about March 5, 1997. I.G. Ex. 3 at 1.

2. Petitioner was sentenced to be imprisoned for 12 months and 1 day; 3 years supervised release; an assessment of $100; and restitution totaling $642,858.21. I.G. Ex. 3 at 2-6.

3. Petitioner pled guilty to Count 20 of a superceding indictment which alleged that she committed an act of health care fraud on March 5, 1997 and incorporated by reference the facts alleged in Parts One and Two of the superseding indictment. I.G. Ex. 2.

4. By pleading guilty to Count 20, Petitioner agreed that her scheme involved defrauding various entities and individuals of an amount in excess of $2,000,000. Id.

5. By pleading guilty to Count 20, Petitioner agreed that her scheme to defraud continued from the summer of 1994 through the date of the indictment - a period of more than one year. I.G. Ex. 2 at 4.

6. The acts of Petitioner that resulted in her conviction, or similar acts, resulted in financial loss to a government program or one or more entities of $5,000 or more.

7. The acts of Petitioner that resulted in her conviction, or similar acts, were committed over a period of one year or more.

8. Petitioner was sentenced to incarceration.

9. The total amount of loss by Medicare was $461,501.50 and by Nebraska Medicaid was $20,937.95, which amounts far exceed the $1,500 specified by the regulation. I.G. Ex. 3 at 5.

10. The Missouri State Board of Registration for the Healing Arts conducted a hearing and subsequently revoked Petitioner's license to practice medicine based on her fraud conviction in the United States District Court for the District of Nebraska, effective February 4, 2003. I.G. Ex. 6.

11. Petitioner was notified of her exclusion pursuant to 1128(a)(1) for a period of 20 years by letter from the I.G. dated May 30, 2003. I.G. Ex. 1.

12. Petitioner requested a hearing to challenge the I.G.'s action by letter dated June 24, 2003.

III. CONCLUSIONS OF LAW

1. Petitioner timely requested a hearing to challenge the I.G.'s proposed exclusion.

2. Petitioner was convicted of an offense related to the delivery of an item or service under a federal program within the meaning of section 1128(a)(1) of the Act (42 U.S.C. § 1320a-7(a)(1)) and there is a basis for Petitioner's exclusion from participation in Medicare, Medicaid, and all federal health care programs.

3. A preponderance of the evidence establishes the aggravating factor recognized by 42 C.F.R. § 1001.102(b)(1).

4. A preponderance of the evidence establishes the aggravating factor recognized by 42 C.F.R. § 1001.102(b)(2).

5. A preponderance of the evidence establishes the aggravating factor recognized by 42 C.F.R. § 1001.102(b)(5).

6. A preponderance of the evidence establishes the aggravating factor recognized by 42 C.F.R. § 1001.102(b)(7).

7. A preponderance of the evidence establishes the aggravating factor recognized by 42 C.F.R. § 1001.102(b)(9).

8. I.G. exhibit 4 does not constitute a record of a prior administrative sanction and it does not establish that Petitioner was subject to a prior "administrative sanction" - the aggravating factor authorized by 42 C.F.R. § 1001.102(b)(6).

9. Five of the six aggravating factors alleged by the I.G. have been established by the preponderance of the evidence but one has not, therefore reassessment of the period of exclusion is required.

10. It is not unreasonable for Petitioner to be excluded from participation in Medicare, Medicaid, and all federal health care programs for the statutory minimum of 5 years plus an additional 15 years based on the presence of 5 aggravating factors.

11. The period of exclusion begins to run on the twentieth day after the May 30, 2003, I.G.'s notice of intent to exclude or June 19, 2003. 42 C.F.R. § 1001.2002.

IV. DISCUSSION

A. APPLICABLE LAW

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. § 1230a-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 the Medicare and Medicaid programs any individual convicted of a criminal offense related to the delivery of an item or service under the Medicare or Medicaid program or any state health care program.

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).

B. ISSUES

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

C. ANALYSIS

Petitioner's right to a hearing by an ALJ and judicial review of the final action of the Secretary is provided by section 1128(f) of the Act (42 U.S.C. § 1230a-7(f)). Pursuant to section 1128(f) of the Act, an individual or entity subject to exclusion is entitled to notice and hearing to the same extent as provided by section 205(b) of the Act. An oral hearing is contemplated. See Section 205(b) of the Act; 42 C.F.R. §§ 1005.2(a), 1005.3(a), 1005.4(a) and (b), 1005.9, 1005.15, and 1005.16. However, an oral hearing is not required where the parties agree to submit the case for my decision on a stipulated record or where both parties waive appearance at an oral hearing and submit the case on documentary evidence and written argument. 42 C.F.R. § 1005.6(b)(4) and (5). Further, no hearing is necessary where all issues may be resolved on a motion for summary judgment as authorized by 42 C.F.R. § 1005.4(b)(12). Summary judgment is appropriate and no hearing is required where either: there are no disputed issues of material fact and the only questions that must be decided involve application of law to the undisputed facts; or, the moving party must prevail as a matter of law even if all disputed facts are resolved in favor of the party against whom the motion is made. A party opposing summary judgment must allege facts which, if true, would refute the facts relied upon by the moving party. See, e.g., Fed. R. Civ. P. 56(c); Garden City Medical Clinic, DAB No. 1763 (2001); Everett Rehabilitation and Medical Center, DAB No. 1628, at 2 (1997) (in-person hearing required where non-movant shows there are material facts in dispute that require testimony); see also, New Millennium CMHC, Inc., DAB CR672 (2000); New Life Plus Center, DAB CR700 (2000). In this case, the parties agreed during the October 14, 2003 prehearing conference that the I.G. would proceed by filing for summary judgment as the I.G. proposed with Petitioner either cross-moving for summary judgment or opposing summary judgment. During briefing, the parties indicated their intent to waive oral argument and simply submit the case for decision on the documentary evidence and the written argument submitted as their summary judgment briefs. I conclude that no oral hearing is necessary for the taking of additional evidence and decide this case based on the evidence submitted by the parties and the briefs submitted.

a. There is a basis for the I.G.'s exclusion of Petitioner.

It is not disputed that Petitioner was convicted in the United States District Court, District of Nebraska, of one count of health care fraud in violation of 18 U.S.C. § 1347, which offense occurred on about March 5, 1997. I.G. Ex. 3. Petitioner argues that she was coerced into pleading guilty by her criminal defense attorney and that she has appeals pending. P. Brief at ¶ V. The law is clear, however that there may be no collateral attack before me of the conviction that is the basis for the exclusion. 42 C.F.R. § 1001.2007(c) and (d). Thus, I may not inquire or examine the lawfulness of the underlying conviction. If after issuance of this decision, Petitioner obtains relief on appeal of her criminal conviction, then that may be addressed by a request for reinstatement to the I. G. pursuant to 42 C.F.R. § 1001.3005.

There is no dispute that Petitioner was convicted within the meaning of section 1128(i) of the Act (42 U.S.C. § 1320a-7(i)) and that the offense of which she was convicted was related to the delivery of an item or service under a federal program within the meaning of section 1128(a)(1) of the Act (42 U.S.C. § 1320a-7(a)(1)). P. Brief at ¶ V.A.1. and 2. Accordingly, I conclude that there is a basis for Petitioner's exclusion.

b. Exclusion for a minimum period of 5 years is mandated by the Act and extension of the period of exclusion by 15 years is not unreasonable in this case.

(1) The aggravating factors.

The I.G. advised Petitioner in its notice of May 30, 2003 that she was being excluded for the minimum statutorily required period of five years plus an additional 15 years based on her conviction and the I.G.'s finding of the following six aggravating factors:

1. The acts resulting in the conviction, or similar acts, resulted in financial loss to a government program or one or more entities of $5,000 or more. (The entire amount of financial loss to such programs, including any amounts resulting from similar acts not adjudicated, will be considered regardless of whether full or partial restitution has been made.) You were ordered to pay approximately $643,000 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 for which you were convicted occurred from approximately the summer of 1994 to approximately March 1997.

3. The sentence imposed by the court included incarceration. You were sentenced to twelve months and one day incarceration.

4. The convicted individual or entity has a prior criminal, civil, or administrative sanction record. The Health Care Financing Administration (HCFA) ⁽¹⁾ suspended your Medicare payments in April 1996. ⁽²⁾

5. The individual or entity has at any time been overpaid a total of $1,500 or more by Medicare, Medicaid, or any other federal health care programs as a result of intentional improper billings. You devised and executed a scheme to defraud private individuals, private insurers, Medicare, and Medicaid of an amount greater than $2,000,000.

6. The individual or entity was convicted of other offenses besides those which formed the basis for the exclusion, or has been the subject of any other adverse action by any federal, State or local government agency or board, if the adverse action is based on the same set of circumstances that serves as the basis for the imposition of the exclusion. The Missouri Board of Healing Arts revoked your medical license in February 2003.

I.G. Ex. 1.

Petitioner concedes that she was sentenced to incarceration, the third aggravating factor cited by the I.G. P. Brief at ¶ V.B.3; Request for Hearing at ¶ 3. Petitioner disputes each of the other aggravating factors cited by the I.G. and requests that I reduce the period of exclusion to the statutory minimum of five years. P. Brief at ¶ V.B; Request for Hearing.

Pursuant to 42 C.F.R. §1005.15(b), (c), and (d), the I.G. bears the burden of proving each alleged aggravating factor by a preponderance of the evidence. I consider each of the disputed aggravating factors alleged by the I.G. in light of this standard.

Aggravating Factor 1: The acts resulting in the conviction, or similar acts, resulted in financial loss to a government program or one or more entities of $5,000 or more. 42 C.F.R. § 1001.102(b)(1).

The I.G. argues that this aggravating factor is established by the fact that Petitioner was ordered to pay restitution of approximately $643,000 as part of her sentence in the District of Nebraska. The evidence reflects that the United States District Court found on sentencing that:

Dr. Goli engaged in fraudulent billing practices resulting in payments being made by Medicare, Medicaid, private insurance and patients. Reviewing the evidence submitted . . . the Court finds that Dr. Goli should be required to make restitution in the total amount of $642,858.21 . . .

I.G. Ex. 3 at 5.

Petitioner argues that this aggravating factor has not been established and should not be considered because the amount of the restitution is based on statistical analysis and projected loss. Request for Hearing, ¶ 1; P. Brief at ¶ V.1. Petitioner's argument is not persuasive. There is no authority for the proposition that a projected loss may not be considered sufficient evidence of an aggravating factor. Further, in this case the trial judge made a specific finding of the amount of restitution to be made based on evidence before him and that finding is not subject to collateral attack before me for the reasons already discussed. Most significant however, is that Petitioner pled guilty to Count 20 of the superseding indictment. I.G. Ex. 2 at 9. Count 20 alleges a violation of 18 U.S.C. § 1347 on about March 5, 1997. Id. at 9. Count 20 also incorporated by reference and alleged those facts set forth in Parts One and Two of the indictment. By pleading guilty to Count 20, Petitioner agreed that the facts alleged in Parts One and Two were true or susceptible of proof beyond a reasonable doubt. Thus, in Part One, Petitioner agreed to the allegation that her scheme involved defrauding various entities and individuals of an amount in excess of $2,000,000. Id. at 1. I find more than sufficient evidence to conclude that Petitioner's scheme to defraud involved loss to the government and other entities in excess of $5,000, the amount specified as aggravating by the regulation. In fact, a preponderance of the evidence is that the amount involved exceeded the restitution amount ordered and considered by the I.G.

Aggravating Factor 2: The acts that resulted in the conviction, or similar acts, were committed over a period of one year or more. 42 C.F.R. § 1001.102(b)(2).

Petitioner pled guilty to Count 20 of the superceding indictment which establishes beyond reasonable doubt that she committed an act of health care fraud on March 5, 1997, the only date alleged in that count. Petitioner alleges that the offense, which she characterizes as a "billing error" only occurred one time in 1997 and not over more than a year as the I.G. alleges. The I.G. argues that 42 C.F.R. §1001.102(b)(2) permits consideration of both the act or acts that resulted in the conviction or "similar acts." I.G. Brief at 9; I.G. Reply at 4-5. The I.G. is correct that the regulation permits consideration of similar acts. However, the I.G. does not address in either brief how it meets its burden of proof to show similar acts by a preponderance of the evidence - the quantum of proof required to establish an aggravating factor. The I.G. does cite the superseding indictment, I.G. Ex. 2, as evidence of similar acts. However, pursuant to the Fourth Amendment to the United States Constitution, warrants and indictments must be supported by "probable cause" a lesser evidentiary standard than "preponderance of the evidence" and insufficient alone to satisfy the I.G.'s burden of proof. The I.G. also points to the fact that Petitioner agreed to pay restitution for the entire health fraud scheme which the I.G. alleges included the years 1994, 1995, 1996 and 1997 citing Petitioner's plea agreement, I.G. Ex. 5 at 1. On review of the plea agreement however, I find no specific agreement by Petitioner that "the entire health care fraud scheme" encompasses any particular period of time.

I find, however, that the preponderance of the evidence does support the conclusion that Petitioner engaged in a scheme to defraud for a period in excess of one year. Again I note that Petitioner pled guilty to Count 20 of the superseding indictment which incorporates by reference Part Two of the indictment. Part Two of the indictment describes the scheme to defraud as continuing from the summer of 1994 through the date of the indictment - a period of more than one year. I.G. Ex. 2 at 4. Petitioner's guilty plea establishes the alleged facts of Count 20 beyond a reasonable doubt.

Aggravating Factor 4: The convicted individual or entity has a prior criminal, civil, or administrative sanction record. 42 C.F.R. § 1001.102(b)(6).

The I.G. argues that this factor is satisfied by the fact that HCFA suspended Petitioner's Medicare payments in April 1999. The I.G. offers as evidence an April 6, 1999 letter to Petitioner which indicates that HCFA intended to suspend Petitioner's Medicare payments immediately. I.G. Ex. 4. Petitioner does not deny that her Medicare payments were suspended. Petitioner argues, however, that the suspension was due to the indictment to which she pled guilty and the suspension should not be counted as a separate aggravating factor and counted against her twice. P. Brief, ¶ V.B.4. Petitioner cites no authority in support of her position and I find none. The requirement is that the "administrative sanction" be "prior" to the conviction that is the basis for the exclusion not that there be a separate act that is the basis for the prior sanction.

The problem for the I.G., is that the authority cited by HCFA for the suspension of the Medicare payments is 42 C.F.R. § 405.371(a) and 405.372(a)(3). The plain language of these regulations show that they do not impose a "sanction" but rather allow administrative suspension of payments pending a final determination as to the existence of an overpayment. Section 405.370 of 42 C.F.R. actually defines "suspension of payment" as "(t)he withholding of payment by an intermediary or carrier from a provider or supplier of an approved Medicare payment amount before a determination of the amount of the overpayment exists." Suspension is not imposed pursuant to 42 C.F.R. Part 405 as a sanction but rather, to establish a pool of funds of previously approved Medicare payments from which an alleged overpayment may be recouped or offset by the agency. See 42 C.F.R. § 405.301.

Accordingly, I conclude that the HCFA letter of April 6, 1999 (I.G. Ex. 4) does not constitute a record of a prior administrative sanction and it does not establish that Petitioner was subject to a prior "administrative sanction" - the aggravating factor authorized by 42 C.F.R. § 1001.102(b)(6).

Aggravating Factor 5: The individual or entity has at any time been overpaid a total of $1,500 or more by Medicare, Medicaid or any other federal health care programs as a result of intentional improper billings. 42 C.F.R. § 1001.102(b)(7).

The I.G. alleges that Petitioner devised and executed a scheme to defraud private individuals, private insurers, Medicare, and Medicaid of an amount greater than $2,000,000. I have already discussed that by her plea of guilty, Petitioner admitted this fact as alleged in Part One of the superseding indictment (I.G. Ex. 2 at 1) which is incorporated by reference in Count 20. Petitioner does not specifically address this allegation in her brief except by the general assertion that the "alleged overpayment was also a projection." P. Brief at ¶ 1. In paragraph 5 of her request for hearing, Petitioner alleges that there was no scheme to defraud but rather an error and that the amount of loss was a projection.

The trial judge made a specific finding of the amount of restitution to be made based on evidence before him and that finding is not subject to collateral attack before me for the reasons already discussed. He also made specific findings as to the total amount of loss by Medicare ($461,501.50) and Nebraska Medicaid ($20,937.95) which far exceed the $1,500 specified by the regulation. I.G. Ex. 3 at 5. I accept the I.G.'s argument that the specific amounts of loss found by the judge represent amounts Petitioner was overpaid due to her fraudulent scheme. Further, her plea to Count 20 establishes that Petitioner had the requisite intent. 18 U.S.C. § 1347. Accordingly, I conclude that this aggravating factor has been established by a preponderance of the evidence.

Aggravating Factor 6: The individual or entity was convicted of other offenses besides those which formed the basis for the exclusion, or has been the subject of any other adverse action by any Federal, State or local government agency or board, if the adverse action is based on the same set of circumstances that serves as the basis for the imposition of the exclusion. 42 C.F.R. § 1001.102(b)(9).

The I.G. alleges that the Missouri Board of Healing Arts revoked Petitioner's medical license in February 2003. I.G. exhibit 6 establishes that on January 25, 2003, the Missouri State Board of Registration for the Healing Arts conducted a hearing at which Petitioner did not appear. The Board revoked Petitioner's license to practice medicine based on her fraud conviction in the United States District Court for the District of Nebraska, effective February 4, 2003. I.G. Ex. 6. Petitioner does not deny the facts related to the revocation or that the revocation occurred but argues that there was not a separate act of fraud. Petitioner's argument must be rejected based on the plain language of the regulation which specifies that the I.G. may consider as an aggravating factor that a state agency or board took an adverse action based on the "same set of circumstances" that are the basis for the exclusion action.

(2) Reasonable period of exclusion.

My review of the aggravating factors leads to the conclusion that five of the six aggravating factors alleged by the I.G. have been established by the preponderance of the evidence. The I.G. has not shown by a preponderance of the evidence that Petitioner has a prior criminal, civil, or administrative sanction record under 42 C.F.R. § 1001.102(b)(6).

The Departmental Appeals Board (DAB) has made clear that the role of the ALJ in cases such as this 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 Joan Fletcher Cash, DAB No. 1725 www.hhs.gov/dab/decisions/dab1725.html) (2000), n.6 (n.9 in the original decision and Westlaw™), 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 DAB 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, n.6. The DAB 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 DAB 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) an appellate panel of the DAB 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 circumstances 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.

Pursuant to the Act and the regulation, where there is a basis for a mandatory exclusion under section 1128(a) of the Act, there is an automatic exclusion for a minimum period of five years. Act, section 1128(c)(3)(B); 42 C.F.R. § 1001.102(a). Pursuant to 42 C.F.R. § 1001.102(d) one prior conviction for conduct that would cause mandatory exclusion under section 1128(a) of the Act, increases the minimum period of exclusion to 10 years and two prior convictions automatically causes permanent exclusion. The 5-year and 10-year minimum exclusions may only be extended if one or more of the aggravating factors specified at 42 C.F.R. § 1001.102(b) are present. The regulations do not limit the additional period of exclusion that may imposed based upon the presence of aggravating factors. The regulations also do not specify how much of an extension is warranted by the existence of an aggravating factor. The DAB has indicated that it is not the number of aggravating factors that is determinative rather, it is the quality of the circumstances, whether aggravating or mitigating, which is controlling in analyzing these factors. Barry D. Garfinkel, M.D., DAB No. 1572 (1996).

In this case, I consider the aggravating factors: (1) that financial loss to the government and other entities ranged from the restitution amount to the admitted total of $2,000,000; (2) that Petitioner's fraudulent acts occurred for more than a year; (3) that Petitioner was sentenced to incarceration; (4) that Petitioner was overpaid by Medicare and Medicaid far more than $1,500 as a result of her fraud; and (5) that Petitioner's license to practice medicine was revoked by the State of Missouri based on her conviction. The I.G. found that Petitioner was subject to the statutory minimum period of exclusion of 5 years and an additional 15 years based on the I.G.'s finding that such extension was warranted by the existence of 6 aggravating factors. I find no authority for the proposition that my discretion is limited by the I.G.'s findings regarding the proper period of exclusion, but rather, I conclude that I have the independent duty to do a de novo review of the facts and determination of the proper period of exclusion. Based on the factors I have articulated, I find that it is not unreasonable for Petitioner to be excluded from participation in Medicare, Medicaid, and all federal health care programs for the statutory minimum of 5 years plus an additional 15 years based on the 5 aggravating factors I have found. I note the particularly egregious nature of the conduct in this case. This was not a simple matter of bilking money from governmental and private entities. Rather, this case, as described by Part One, paragraph 1 of the superseding indictment involved "the frequent and systematic administration of inotropic therapy that was medically unnecessary to elderly individuals seeking medical care." I.G. Ex. 2 at 1; see also id. at 4.

Section 1001.2002 of 42 C.F.R. states that a period of exclusion begins to run 20 days after the date of the I.G.'s exclusion letter. The I.G.'s notice was dated May 30, 2003 and the twentieth day thereafter was June 19, 2003, the effective date of Petitioner's exclusion.

V. CONCLUSION

For the foregoing reasons, Petitioner is excluded from participation in Medicare, Medicaid and all other federal health care programs for a period of 20 years effective June 19, 2003.

KEITH W. SICKENDICK

Administrative Law Judge

1. Now known as the Centers for Medicare & Medicaid Services (CMS).

2. The I.G. clarified in its opening brief that the 1996 date is a clerical error and that the correct date was 1999. I.G. Brief at 10, n.5.