SUBJECT:

Mitchel Earl Phillips, D.O.,

Petitioner,

The Inspector General

DECISION

This matter is before me on the Inspector General's (I.G.'s) motion for summary affirmance. The parties have submitted briefs and exhibits in support of their positions and I have reviewed their pleadings carefully. Having done so, I find no material facts in dispute and conclude that the I.G.'s position is correct as a matter of law. Accordingly, I GRANT the I.G.'s motion for summary affirmance and SUSTAIN the I.G.'s determination to exclude Petitioner, Mitchell Earl Phillips, D.O., from participating in Medicare, Medicaid, and all other federal health care programs for a period of 10 years.

By letter dated January 31, 2001, the I.G. notified Petitioner that he was to be excluded, for a period of 10 years, from participation in Medicare, Medicaid, and all other federal health care programs as required by section 1128(a)(1) of the Social Security Act (Act). 42 U.S.C. § 1320a-7(a)(1). I.G. Exhibit (I.G. Ex.) 5. The basis for the I.G.'s action was Petitioner's 1999 conviction, on his plea of nolo contendere to a criminal information filed in the District Court for Clark County, State of Nevada, of having violated a Nevada state statute forbidding the intentional failure to maintain adequate records in connection with claims submitted to the Nevada Medicaid program. I.G. Exs. 3, 4. The crime is defined at Nev. Rev. Stat. (N.R.S.) § 422.570(1), and violation of the statute is classified as a gross misdemeanor.

The statute under which the I.G. proceeded establishes a five-year mandatory minimum exclusion of persons or entities convicted of violations related to the delivery of an item or service under the Medicare or Medicaid programs, but also provides that the I.G. may enlarge the term of exclusion for an additional period if certain aggravating factors are shown to be present. In this case, the I.G. asserts that the presence of two aggravating factors warrants the addition of five years to the five-year mandatory period of exclusion, and has thus determined that Petitioner should be excluded from all federal health care programs for 10 years.

By letter dated February 15, 2001, Petitioner timely sought review of the I.G.'s determination. The sufficiency of Petitioner's hearing request has not been challenged and no other jurisdictional issues have been raised or become apparent to me.

Petitioner filed an Emergency Motion to Set Aside Exclusion, and a memorandum in support of his motion, on August 7, 2001. The basis of Petitioner's Emergency Motion lay in his attempt to withdraw his nolo contendere plea: his efforts in the Nevada State court had resulted in the temporary rescission of the Judgment of Conviction. I.G. Exs. 6, 7.

The Emergency Motion was the subject of a telephone conference on August 8, 2001, at which time I established a briefing schedule intended to allow both sides to offer argument and authorities on the question of whether Petitioner could still be considered to have been "convicted" within the terms of section 1128(i) of the Act. While Petitioner's Emergency Motion was pending, however, the Nevada District Court on October 25, 2001 entered a final ruling denying Petitioner's motion to withdraw his nolo contendere plea. I.G. Ex. 8. Noting that the District Court ruling had been appealed to the Supreme Court of Nevada, Petitioner sought leave to withdraw his Emergency Motion on December 27, 2001.

I convened a second telephone conference on February 7, 2002. I granted Petitioner's request to withdraw the Emergency Motion, and admitted into evidence without objection I.G. Exs. 1-8 and Petitioner's exhibits (P. Exs.) 1-3. Because the matter appeared suitable for disposition in the context of a motion for summary judgment, I established a schedule for the submission of such a motion by the I.G., and for briefing and development of the documentary record by the parties.

At the close of the briefing cycle, I identified certain procedural and substantive questions that required discussion before the record closed, and I addressed them in an Interim Order of June 26, 2002. That Interim Order granted Petitioner's motion to file a sur-reply brief, denied his request for oral argument in this case, confirmed the admission of I.G. Exs. 1-8 and P. Exs. 1-3, and admitted I.G. Exs. 9 and 10 after explaining my reasons for doing so.

The Interim Order also required Petitioner to assert any factors in mitigation of the enhanced exclusion cognizable under 42 C.F.R. §§ 1001.102(c)(1)-(3) promptly, rather than at some later stage of these proceedings or in some other forum. A second Order was required to address the point on August 29, 2002. On September 10, 2002, Petitioner filed his Waiver of Supplemental Brief, in which he conceded the inapplicability of the mitigating factors described at 42 C.F.R. §§ 1001.102(c)(2) and (3), and admitted that he could not offer evidence to invoke 42 C.F.R. § 1001.102(c)(1). Since it was filed in the context of the Interim Order of June 26^th and the subsequent Order of August 29, 2002, I regard Petitioner's Waiver of September 10, 2002, as an informed and explicit abandonment of any claim of, or reliance on, any of the mitigating factors set out in 42 C.F.R. §§ 101.102(c)(1)-(3).

Because I believe that the I.G.'s motion for summary affirmance is supported by the settled facts and by well-established law, I grant the motion, and thereby sustain the I.G.'s determination to exclude Petitioner from participation in Medicare, Medicaid, and all other federal health care programs for a period of 10 years. I shall set forth my reasons for doing so, together with the findings of fact and conclusions of law on which I rest my decision, in detail below.

The legal issues before me in this case are limited to two. The unsuccessful effort to withdraw Petitioner's nolo contendere plea and any potential consequences that might derive from that effort are no longer before me, and Petitioner has explicitly declined to rely on, or to proffer evidence of, any of the mitigating factors specified in 42 C.F.R. §§ 1001.102(c)(1)-(3). Thus, the two issues still before me for resolution here are:

1. Whether Petitioner's conviction authorizes the I.G. to exclude Petitioner from Medicare, Medicaid, and all other federal health care programs pursuant to section 1128(a)(1) of the Act; and

2. Whether aggravating factors as defined at 42 C.F.R. § 1001.102(b)(1)-(9) are present which operate to make the I.G.'s extension of the exclusion period to 10 years reasonable?

III. Controlling Statutes and Regulations

Section 1128(a)(1) of the Act requires the exclusion from participation in Medicare, Medicaid, and all other federal health care programs of any individual or entity convicted of a criminal offense related to the delivery of an item or service under Title XVIII of the Act (Medicare) or under any State health care program. This exclusion is mandatory and must be imposed for a minimum of five years. Act, section 1128(c)(3)(B). The Act defines "convicted" as including those circumstances "when a judgment of conviction has been entered against the individual or entity by a Federal, State, or local court," or "when a plea of guilty or nolo contendere by the individual or entity has been accepted by a Federal, State, or local court." Act, sections 1128(i)(1), (3). These definitions are repeated at 42 C.F.R. § 1001.2. Petitioner does not contest that he has been "convicted" within the statutory and regulatory definition.

The mandatory minimum five-year exclusion is subject to enlargement: 42 C.F.R. § 1001.102 allows the I.G. to extend the five-year period if certain aggravating factors are demonstrated to have attended on the criminal conduct of which the individual or entity has been convicted. If the I.G. proposes to rely on any of the specified aggravating factors to seek an enlargement of the exclusionary period, then the subject of the proposed exclusion is permitted to assert the existence of certain mitigating factors and thereby seek to limit the exclusion to the five-year mandatory minimum. Those aggravating and mitigating factors are set out in detail at 42 C.F.R. §§ 1001.102(b)(1)-(9) and (c)(1)-(3). The aggravating factors relied on by the I.G. in this case are:

•The acts resulting in the conviction, or similar acts, resulted in financial loss to a government program or to one or more entities of $1,500 or more; and

•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)(1), (2).

Although the I.G.'s reliance on the two aggravating factors would have allowed Petitioner to assert any of the mitigating factors set out in 42 C.F.R. §§ 1001.102(c)(1)-(3), his responses to my Interim Order of June 26, 2002 and my subsequent Order of August 29, 2002 are a clear expression of his waiver of his right to do so. Thus, none of the three mitigating factors have been asserted and no claims in mitigation are before me for adjudication.

The Nevada State statute on which Petitioner's conviction was based appears at section 422.570 of the Nevada Revised Statutes, and provides in relevant part:

N.R.S. § 422.570 Intentional failure to maintain adequate records; intentional destruction of records; penalties.

1. A person is guilty of a gross misdemeanor if, upon submitting a claim for or upon receiving payment for goods or services pursuant to the plan (in this case, the Nevada Medicaid plan), he intentionally fails to maintain such records as are necessary to disclose fully the nature of the goods or services for which a claim was submitted or payment was received, or such records as are necessary to disclose fully all income and expenditures upon which rates of payment were based, for at least 5 years after the date on which payment was received.

I note that the statute does not establish a jurisdictional monetary amount or a penalty structure based on the value of the goods, services, claims, or payments involved. Thus, an information or indictment based on N.R.S. § 422.570 need not, on its face, assert the specific monetary value of any of the items to which the improperly-kept records relate.

IV. Findings of Fact and Conclusions of Law

I find and conclude as follows:

1. At all material times, Petitioner was a doctor of osteopathy practicing medicine in the State of Nevada, and was under contract with the Nevada Department of Human Services, Health Care Financing and Policy Division--Nevada Medicaid. I.G. Ex. 3.

2. Beginning on or about January 1, 1995, and continuing until on or about December 4, 1996, Petitioner submitted or caused to be submitted claims for reimbursements to the Nevada Medicaid program, and received payments for goods or services provided to the Nevada Medicaid Program, while intentionally failing to maintain records in connection with those goods, services, and payments as required by law, contrary to and in violation of N.R.S. § 422.570(1). Id.

3. On or about November 18, 1999, in the District Court for Clark County, State of Nevada, Petitioner pleaded nolo contendere to an Information charging him with violation of N.R.S. § 422.570(1) as described above in Finding 2. Id.

4. A Judgment of Conviction was entered on Petitioner's plea of nolo contendere in the District Court for Clark County, State of Nevada, on November 22, 1999. The Judgment of Conviction has not been reversed or vacated. I.G. Exs. 4, 8.

5. The plea and Judgment of Conviction constitute a "conviction" within the meaning of sections 1128(i)(1) and (2) of the Act. 42 C.F.R. § 1001.2.

6. Petitioner has been "convicted of a criminal offense related to the delivery of an item or service" under the Nevada Medicaid program, within the meaning of section 1128(a)(1) of the Act. Id.

7. By reason of his conviction, Petitioner was subject to, and the I.G. was required to impose, a mandatory exclusion from participation in Medicare, Medicaid, and all other federal health care programs for a period of not less than five years. Act, section 1128(c)(3)(B).

8. By letter dated January 15, 2001, the I.G. notified Petitioner that he would be excluded for a term of 10 years from participation in Medicare, Medicaid, and all other federal health care programs, based on the presence of two aggravating factors set out in 42 C.F.R. §§ 1001.102(b)(1), (2).

9. On February 15, 2001, Petitioner perfected his appeal from the I.G.'s action by filing a timely hearing request.

10. The amount of restitution Petitioner paid as part of the negotiated plea in the criminal prosecution was $20,098.73. I.G. Exs. 9, 10.

11. The financial loss to the Nevada Medicare program that resulted from the criminal conduct for which Petitioner was convicted was approximately $20,098.73. I.G. Exs. 9, 10.

12. Because this loss to the Nevada Medicaid program was in excess of $1,500, the aggravating factor set out in 42 C.F.R. § 1001.102(b)(1) is present.

13. The acts resulting in Petitioner's conviction began on or about January 1, 1995, and continued until on or about December 4, 1996. I.G. Exs. 1, 2, 3, 6.

14. Because the acts resulting in Petitioner's conviction were committed over a period of one year or more, the aggravating factor set out in 42 C.F.R. § 1001.102(b)(2) is present.

15. None of the mitigating factors set out in 42 C.F.R. §§ 1001.102(c)(1)-(3) are present.

16. The I.G.'s exclusion of Petitioner for 10 years is supported by fact and law and is within a reasonable range as a matter of law. See I.G. Exs. 1-4, 6, 8-10.

17. There are no remaining disputed issues of material fact and summary disposition is therefore appropriate in this matter.

Over the course of this litigation, the issues which remain for resolution have been narrowed considerably. Even the two specifically identified above are further narrowed by Petitioner's recognition that his conviction is "related to the delivery of an item or service" to a protected health care program, and is therefore within the reach of section 1128(a)(1) of the Act. It may be helpful, however, to review briefly what issues or facts are no longer material to this decision.

First, Petitioner's efforts to withdraw his nolo contendere plea, and thus to set aside his conviction, are no longer of importance in this appeal. As I have noted above, the Nevada District Court denied Petitioner's motion to withdraw the plea. I.G. Ex. 8. Although an appeal of the District Court's ruling may be pending before the Supreme Court of Nevada, I need not (and therefore do not) speculate on the possible consequences, if any, of that Court's action. Petitioner does not now deny that he has been "convicted" within the meaning of sections 1128(i)(1) and (3) of the Act. Petitioner's Opposition to Inspector General's Motion for Summary Affirmance, filed April 19, 2002 (P. Opp.), at 1, 4; Petitioner's Sur-Reply to Inspector General's Reply Brief, filed June 13, 2002 (P. Sur.), at 1, 5.

Next, there is no real debate over the nexus or common-sense connection between the criminal offense of which Petitioner was convicted and the "delivery of an item or service under the Medicaid program" within the meaning of section 1128(a)(1) of the Act. Acknowledging the application Diana J. Askew, DAB CR857 (2002), to the instant case, Petitioner has admitted that his "failure to maintain adequate records of services rendered to a Medicaid patient was related to the delivery of items or services under the Medicaid program, and, therefore, could form the basis of an exclusion under 42 U.S.C. § 1320a-7(a)(1)." P. Opp., at 1.

Petitioner has narrowed the discussion further still by his declaration of what matters he does contest. Petitioner's original hearing request of February 15, 2001, may arguendo have been jurisdictionally sufficient, but it did not explicitly challenge the fact of his conviction or its nexus to the Medicaid program. At page one of Petitioner's opposition brief, however, he declares: "As a result, Dr. Phillips' appeal will focus only on the duration of his exclusion from the Medicare, Medicaid, and other Federal health care programs." He repeats his emphasis three pages later in his opposition brief at page four, and again in the closing paragraph of his sur-reply at page five.

Thus, the resolution of the first issue before me is straightforward and brief: Petitioner's conviction does not merely authorize the I.G. to exclude him from all federal health care programs; by operation of law, the conviction requires that result. It is a well-established principle that once an individual's conviction is found to have been "related to the delivery of an item or service under Title XVIII or a State health care program," and thus to lie within the terms of section 1128(a)(1) of the Act, the imposition of the five-year minimum exclusion dictated by section 1128(c)(3)(B) is mandatory, and is beyond the authority of the I.G. or an administrative law judge (ALJ) to reduce, modify, or suspend. The clearest possible language has been used to make this point: " . . . once an individual has been found to have been convicted of a program-related criminal offense under section 1128(a)(1) of the Act, exclusion is mandatory." Lorna Faye Gardner, DAB No. 1733 (2000); see also Salvacion Lee, M.D. DAB CR920 (2002).

The conviction under which the I.G. proceeds here falls within the first of four categories of predicate conviction established in section 1128(a) of the Act. Each category sets out certain criteria by which a conviction is evaluated as a potential predicate for mandatory exclusion. Once the conviction of an entity or individual has been found to fall within the term of sections 1128(a)(1), 1128(a)(2), 1128(a)(3), or 1128(a)(4), it is the predicate for mandatory and non-discretionary exclusion of the individual or entity. Lorna Fay Gardner, supra; Narendra M. Patel, M.D., DAB No. 1736 (2000); Susan Malady, R.N., DAB No. 1816 (2002); Lloyd G. Bayme, M.D., DAB CR876 (2002); Freddie P. Novak, M.D., DAB CR687 (2000). Since the denial of his motion to withdraw his nolo contendere plea and the concomitant failure of his effort to have his predicate conviction set aside, Petitioner has expressed himself as resigned to the imposition of the five-year mandatory minimum period of exclusion.

The existence and effect of aggravating factors remain vigorously contested, however. The material facts are settled, appearing fully in the exhibits now of record and sufficiently for purposes of summary disposition. But each side draws sharply different inferences from them, and argues that they do or do not support conclusions about the amount of loss to the Medicaid program involved and the period over which Petitioner's admitted criminal activity was conducted.

While I have carefully examined all 13 exhibits, there are four that contain important information related to the amount of loss and the period of activity. The first is I.G. Ex. 3, the Criminal Information to which Petitioner pleaded guilty. Like any charging document in a criminal case, it asserts that the illegal conduct occurred in a specific locale, sufficiently described so as to confer jurisdiction and venue on the tribunal in which it is filed: " . . . within the Las Vegas Township, Clark County, State of Nevada . . . " I.G. Ex. 3, at 1. The Information describes the details of the illegal conduct so as to meet due process standards, and it provides a citation to the statute violated. I. G. Ex. 3, at 2. Since the particular statute involved does not establish a jurisdictional amount or amount-based penalty structure, the Information does not contain language addressing the amount of loss to the Medicaid program.

But there is another important feature of any charging document in a criminal case: unless the charge asserts a date or dates on or about which the illegal conduct occurred, it is incomplete. Without the assertion of a date or dates, it is impossible for the tribunal to know whether a statue of limitations has tolled. Nevada has a statute of limitations specific to the class of offenses here discussed. N.R.S. § 422.590; see also I.G. Ex. 1, at 14. Nor, without the assertion of a date, is it possible for the defendant to know whether he might in fact have an alibi defense. Compare Fed. R. Crim. P. 12.1. Thus, it is necessary that the Information to which Petitioner pleaded nolo contendere should at some point charge the dates of the violation.

The only dates recited anywhere in the Information occur in a one-sentence paragraph:

Specifically, from January 1, 1995 through December 4, 1996, PHILLIPS was a physician in the practice of medicine with MedPartners dba Nevada medical located within Las Vegas Township, County of Clark, Nevada.

I.G. Ex. 3, at 2.

Petitioner argues that this language has no bearing on the dates of his admitted illegal activity, but is rather a generalized statement of his entire term of employment with MedPartners and lacks any allegation that his misconduct occurred during all or at any part of that time. Neither he nor the I.G. appears to remember the doctrine elucidated in Thomas P. Whitfield, D.P.M., DAB CR539 (1998) and Jerome Rosenberg, D.D.S., et al., DAB CR759 (2001), which would allow me to consider "similar acts" as aggravating circumstances and thus would render moot the discussion that immediately follows.

The difficulty with Petitioner's position is that it would have me adopt a strained reading of the Information, while a plain reading of the document requires that the dates be understood as charging the term of the criminal conduct. They are the only dates asserted, and they tally with the assertion in the next paragraph that the conduct was part of Petitioner's "routine business practice or continuous course of conduct." I.G. Ex. 3, at 2. In fact, any confusion over the relationship of the "dates" paragraph to the rest of the Information is readily dispelled by simply considering that paragraph in the context of the two immediately following it: the drafter of the Information obviously intended to encompass a continuing criminal enterprise in the behavior described, and to assert that it began in January 1995 and ended in December 1996.

This plain reading of the Information is supported by correspondence dated June 14, 1999, from Nevada authorities to Petitioner during the negotiations that led to his plea. I.G. Ex. 1, at 10-12. Strictly speaking, this second important exhibit may be extrinsic to the official court record as it existed at the time of Petitioner's conviction and sentence, since it was filed as part of the Nevada authorities' response to Petitioner's motion to withdraw his plea. Nevertheless it is admissible for purposes of showing the underlying facts of Petitioner's conduct, since I find the correspondence credible and reliable for that purpose. Narendra M. Patel, M.D., DAB No. 1736 (2000); Tanya A. Chouke, R.N., DAB CR865 (2002); Donald J. Purcell, II, M.D., DAB CR572 (1999). The letter elaborates on the authorities' investigation and its results, and on its second page alleges a period of activity precisely consonant with the dates recited in the Information.

The Information itself may not be a model of clarity or organization, and it is possible to imagine sources on which the I.G. might have relied to support the position she rather dismissively argues here. For example, it is plain that a criminal complaint was filed in the Nevada State court on or about October 13, 1999. I.G. Ex. 2, at 2. It is just as plain that transcripts of at least some of the court proceedings exist. I.G. Ex. 6, at 7. It would hardly be surprising if those sources lent explicit support to her position now, which is that all parties to the Nevada state court proceedings both at the time of the plea and during the efforts to withdraw that plea understood the Information to have charged "certain acts having been committed between January 1, 1995 and December 4, 1996." I.G. Ex. 6, at 5.

Those sources are not before me, but even in their absence this conclusion can be reached: in 1999, and as late as May 2001, all of the parties to the Nevada State court proceedings acted as if the Information to which Petitioner pleaded nolo contendere charged an offense that continued from January 1, 1995 through December 4, 1996. Petitioner is simply mistaken when he asserts: "[o]ne act cannot be committed over a period of a year." P. Sur., at 3. Federal criminal jurisprudence is rich in examples of crimes that almost always are committed over a more-or-less extended period, ranging from conspiracy, 18 U.S.C. § 371, through criminal contempt of court, 18 U.S.C. § 402, a broad class of racketeering activity, 18 U.S.C. §§ 1951-1955, 1961-1965, and crimes involving bankruptcies, 18 U.S.C. § 3284, to continuing criminal enterprises involving illicit drugs, 28 U.S.C. § 848. In this case, the criminal act or acts of which Petitioner stands convicted were committed over a period of one year or more. The I.G. has demonstrated the presence of the aggravating factor specified in 42 C.F.R. § 1001.102(b)(2).

The third and fourth important exhibits are I.G. Exs. 9 and 10; together they comprise a brief explanation of how the proceeds of Petitioner's check for $175,000 (I.G. Ex. 10, at 4) were allocated and distributed. The check is dated November 18, 1999, which is the date on which Petitioner offered, and the court accepted, his nolo contendere plea. I.G. Ex. 4, at 1. The two identical copies of the distribution memorandum before me (I.G. Exs. 9, 10, at 3) bear the same date, November 18, 1999. Both copies agree that the proceeds of Petitioner's check would be divided between restitution to the Medicaid program and the Nevada State authorities' Medicaid Fraud Control Unit, and that $20,098.73 would be allocated to "Restitution (Medicaid)."

As previously stated, Petitioner negotiated the nolo contendere plea. I.G. Exs. 1 and 6 contain a good overview of the negotiations from the perspective of the parties to the effort to withdraw the plea. But even given these different perspectives, it is patent that Petitioner bargained for and acceded to the terms of the Memorandum of Plea Agreement (Nolo Contendere) filed on November 18, 1999. I.G. Ex. 2. That Memorandum reflects Petitioner's agreement: " . . . to pay the sum of One Hundred and Seventy Five Thousand Dollars ($175,000.00) to the State of Nevada, c/o Office of the Attorney General, Medicaid Fraud Control Unit for restitution, costs of investigation and enforcement and penalties." I.G. Ex. 2, at 2. The Memorandum thus establishes beyond cavil that restitution would make up some part of the $175,000. Whether Petitioner knew the precise amount in November 1999 is immaterial.

The allocation memorandum reflected by the two exhibits does not exist in a vacuum. It is part of a coherent narrative, supported by the general history of the investigation and plea, and specifically supported by the terms of the Memorandum of Plea Agreement. It was prepared at the very time of the plea and payment. It is in every way consistent with every other element of evidence before me in this case. On its face, and without material contradiction of any sort whatsoever, it establishes the amount of restitution to the Nevada Medicaid program as a fact.

Once that fact is acknowledged, the link between the amount of restitution and proof of loss to the Medicaid program becomes a matter of well-recognized law. In most of the reported cases, the amount of restitution is explicitly established in the records of the criminal proceedings themselves, usually in sentencing documents or probation orders, but sometimes in memoranda similar to I.G. Ex. 2. In the instant case, the amount of restitution is established by a more circuitous route, but the result is the same: a sum certain has been shown, beyond material dispute, to represent the amount of restitution exacted from an individual convicted of a crime related to the delivery of an item or service under a protected federal health care program. The rule in this forum supports the use of that amount of restitution as a fair estimate of the losses caused by Petitioner's criminal conduct. Ruth Ferguson, DAB CR725 (2000); Steven Alonzo Henry, M.D., DAB CR638 (2000); Gilbert Ross, DAB CR478 (1997); Thomas P. Whitfield, D.P.M., supra. I have been shown no reason to doubt the fairness of this estimate. The amount of restitution has been conclusively established at $20,098.73, and thereby the amount of loss to the Medicaid program has been conclusively established at approximately that sum, an amount well in excess of the $1,500 threshold of material dispute. The I.G. has demonstrated the existence of the aggravating factor specified in 42 C.F.R. § 1001.102(b)(2).

It may be helpful here to make an additional point. Although I am in no doubt that Petitioner's September 10, 2002, Waiver of Supplemental Brief constitutes his clear abandonment of any claims in mitigation, and without intending the slightest relaxation of the rule in Barry D. Garfinkel, M.D., DAB No. 1572 (1996), I have sua sponte reviewed the exhibits and pleadings in this record for any facts that might colorably entitle Petitioner to claim any of the three mitigating factors. That record has disclosed nothing of potential help to Petitioner, and I specifically note that my resolution of the amount-of-loss issue in the I.G.'s favor eliminates the mitigating factor set out at 42 C.F.R. § 1001.102(c)(1) from further consideration.

Because the I.G. has demonstrated the existence of the two aggravating factors discussed above, I find that her enlargement of the period of exclusion to 10 years is within a reasonable range as a matter of law. Joann Fletcher Cash, DAB No. 1725 (2000); Kathryn Clara Halladay, DAB CR856 (2002); Paul W. Williams, Jr, et al., DAB CR787, aff'd, DAB No. 1785 (2001); Tarvinder Singh, D.D.S., DAB CR697, aff'd, DAB No. 1752 (2000).

VI. Conclusion

For the reasons set forth above, I GRANT the I.G.'s motion for summary affirmance on the issues before me in this case, and thereby SUSTAIN as reasonable the I.G.'s exclusion of Petitioner from participation in Medicare, Medicaid, and all other federal health care programs for a period of 10 years, pursuant to the terms of section 1128(a)(1) of the Act.

Richard J. Smith

Administrative Law Judge