SUBJECT:

Pura Ester Medina,

Petitioner,

The Inspector General.

DECISION

This matter is before me on the Inspector General's (I.G.'s) Motion for Summary Affirmance of the I.G.'s revised determination to exclude Petitioner pro se, Pura Esther Medina, from participation in Medicare, Medicaid, and all other federal health care programs for a period of 10 years. The I.G.'s Motion and determination to exclude Petitioner are based on section 1128(a)(1) of the Social Security Act (Act), 42 U.S.C. � 1320a-7(a)(1). The undisputed facts in this case require the imposition of at least the minimum five-year exclusion, and fully support the reasonableness of the I.G.'s revised determination to enhance that period of exclusion to 10 years. For those reasons, I grant the I.G.'s Motion.

I. Procedural Background

Petitioner pro se, Pura Esther Medina, was employed between approximately January 2000 and April 2003 as a secretary and pharmacy technician at United Pharmacy Discount, Inc., a business located in Hialeah, Florida. On February 24, 2005, the Federal Grand Jury sitting for the United States District Court for the Southern District of Florida handed up a 33-count Indictment naming Petitioner and four others as co-defendants in a scheme to defraud the Medicare program through the submission of fraudulent claims for durable medical equipment, prescription drugs, and other health care items and services. Petitioner was named in 13 counts of the Indictment.

Represented by counsel, Petitioner denied the charges, stood trial before a jury, and was found guilty as charged on June 9, 2005. She was found guilty of one count of conspiring to commit the offense of health care fraud, in violation of 18 U.S.C. � 371; of nine counts of the substantive crime of health care fraud, in violation of 18 U.S.C. � 1347 and 18 U.S.C. � 2; of one count of conspiring to commit the crime of money laundering, in violation of 18 U.S.C. � 1956(h); and of two counts of the substantive crime of money laundering, in violation of 18 U.S.C. � 1956(a)(1)(B)(i) and 18 U.S.C. � 2.

Petitioner appeared for sentencing with counsel on August 24, 2005. She was sentenced to a 51- month prison term on each of the 13 counts, those terms to be served concurrently, followed by a three-year period of probation served concurrently for each count. In addition, Petitioner was required to perform 250 hours of community service and to pay a fine and an additional assessment totaling $26,300. No restitution was required as part of Petitioner's sentence. Petitioner's appeal of her conviction and sentence is pending as No. 05-14864-A in the United States Court of Appeals for the Eleventh Circuit, in which appeal she is represented by the Federal Public Defender.

Section 1128(a)(1) of the Act, 42 U.S.C. � 1320a-7(a)(1), mandates the exclusion for a period of not less than five years of "[a]ny individual or entity that has been convicted of a criminal offense related to the delivery of an item or service under title XVIII . . . ", the Medicare program. On April 28, 2006, the I.G. notified Petitioner that she was to be excluded for a period of 18 years pursuant to the terms of section 1128(a)(1) of the Act. The I.G.'s initial determination to set the period of exclusion at 18 years was based on the apparent presence of three aggravating factors set out at 42 C.F.R. �� 1001.102(b)(1), (b)(2), and (b)(5).

Acting pro se, Petitioner timely sought review of the I.G.'s action by her undated letter received by the Civil Remedies Division on May 23, 2006. I convened a prehearing conference by telephone on June 28, 2006, pursuant to 42 C.F.R. � 1005.6, after having ascertained that the Federal Public Defender was aware of this appeal but did not, and could not, appear in it for Petitioner, who remains pro se. The I.G. expressed the intention of seeking summary disposition on written submissions, and I established a schedule for the filing of documents and briefs. That schedule and other details of the conference are set out in my Order of June 28, 2006.

The I.G.'s Motion for Summary Affirmance and supporting Brief were timely filed on July 31, 2006, but were accompanied by the IG.'s Motion Requesting an Extension of Time, by which the I.G. sought additional time to file what in effect would be an amended Motion for Summary Affirmance based on a revised determination to exclude Petitioner for 10 years instead of the originally-proposed 18 years. The extension of time was granted and a revised briefing schedule was established by my letter of August 2, 2006.

The I.G.'s amended Motion and Brief and his revised determination to exclude Petitioner for 10 years were filed on August 14, 2006. The I.G.'s revised determination is based on 42 C.F.R. � 1001.2002(e) and relies on the aggravating factors noted at 42 C.F.R. �� 1001.102(b)(2) and (b)(5), but specifically disclaims further reliance on the aggravating factor noted at 42 C.F.R. � 1001.102(b)(1).

The I.G. filed his Motion and Brief and his Reply Brief according to the August 2, 2006 schedule. Petitioner did not prepare and file an Answer Brief specific to this case, but instead submitted copies of her Brief-in-Chief and Reply Brief filed in the Eleventh Circuit. Based on the timing of their submission in the briefing cycle, I received them as together constituting Petitioner's Answer Brief, as noted in my Order of October 2, 2006. Petitioner did not exercise her opportunity to file a Response Brief, and the record in this case closed on October 19, 2006.

The evidentiary record on which I decide this case contains four exhibits. The I.G. submitted four exhibits with his August 14, 2006 filings, marked I.G. Exhibits 1-4 (I.G. Exs. 1-4). Petitioner has not objected to them, and they are admitted to the record of this case as designated. I have not admitted the documents identified as proposed exhibits attached to the I.G.'s filings of July 31, 2006, since they all are included in I.G. Exs. 1-4. Petitioner has submitted no exhibits during the briefing cycle. As noted above, I have treated her two briefs in the Eleventh Circuit proceedings as her Answer Brief here, and not as exhibits.

II. Issues

The issues before me are limited to those noted at 42 C.F.R. � 1001.2007(a)(1). In the context of this record they are:

1. Whether the I.G. has a basis for excluding Petitioner from participating in Medicare, Medicaid, and all other federal health care programs pursuant to section 1128(a)(1) of the Act; and

2. Whether the 10-year length of the period of exclusion is unreasonable.

Both issues must be resolved in favor of the I.G.'s position. Section 1128(a)(1) of the Act mandates Petitioner's exclusion, for her predicate conviction has been established. A five-year period of exclusion is the minimum period established by section 1128(c)(3)(B) of the Act. The enhancement of that period to 10 years is not unreasonable, for both of the aggravating factors relied on in the I.G.'s revised determination to enhance the period to 10 years are fully demonstrated in the record before me, and no mitigating factors have been demonstrated or suggested.

III. Controlling Statutes and Regulations

Section 1128(a)(1) of the Act, 42 U.S.C. � 1320a-7(a)(1), requires the mandatory exclusion from participation in Medicare, Medicaid, and all other federal health care programs of 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." Title XVIII of the Act is the Medicare program. The terms of section 1128(a)(1) are restated in similar regulatory language at 42 C.F.R. � 1001.101(a).

The Act defines "conviction" as including those circumstances "when a judgment of conviction has been entered against the individual . . . by a Federal . . . court, regardless of whether there is an appeal pending . . . " Act, section 1128(i)(1), 42 U.S.C. � 1320a-7(i)(1); or "when there has been a finding of guilt against the individual . . . by a Federal . . . court," Act, section 1128(i)(2), 42 U.S.C. � 1320a-7(i)(2). These definitions are repeated at 42 C.F.R. � 1001.2.

An exclusion based on section 1128(a)(1) is mandatory and the I.G. must impose it for a minimum period of five years. Act, section 1128(c)(3)(B); 42 U.S.C. � 1320a-7(c)(3)(B). The regulatory language of 42 C.F.R. � 1001.102(a) affirms the statutory provision. The minimum mandatory period of exclusion is subject to enhancement in some limited circumstances and on proof of narrowly-defined aggravating factors set out at 42 C.F.R. �� 1001.102(b)(1)-(9). In this case, the I.G. seeks to enhance the period of Petitioner's exclusion to 10 years, and relies on the two aggravating factors listed at 42 C.F.R. �� 1001.102(b)(2) and (b)(5).

If the I.G. attempts to enhance the period of exclusion by relying on any of those aggravating factors, a petitioner may attempt to limit or nullify the proposed enhancement through a showing of certain mitigating factors set out at 42 C.F.R. �� 1001.102(c)(1)-(3).

The standard of proof in this case is a preponderance of the evidence. 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), (c).

IV. Findings and Conclusions

I find and conclude as follows:

1. On June 9, 2005, in the United States District Court for the Southern District of Florida, Petitioner, Pura Esther Medina, was found guilty upon jury verdict of one count of conspiring to commit health care fraud, in violation of 18 U.S.C. � 371; nine counts of the substantive crime of health care fraud, in violation of 18 U.S.C. � 1347 and 18 U.S.C. � 2; one count of conspiring to commit money laundering, in violation of 18 U.S.C. � 1956(h); and two counts of the substantive crime of money laundering, in violation of 18 U.S.C. �� 1956(a)(1)(B)(i) and 18 U.S.C. � 2. I.G. Exs. 1, 2; P. Brief-in-Chief, at 3.

2. Final adjudication of guilt, judgment of conviction, and sentencing based on that verdict were imposed on Petitioner in the United States District Court on August 24, 2005. I.G. Ex. 2.

3. On April 28, 2006, the I.G. notified Petitioner that she was to be excluded from participation in Medicare, Medicaid, and all other federal health care programs for a period of 18 years, based on the authority set out in section 1128(a)(1) of the Act and the aggravating factors set out at 42 C.F.R. �� 1001.102(b)(1), (b)(2), and (b)(5). I.G. Ex. 3.

4. On or about May 23, 2006, Petitioner perfected her appeal from the I.G.'s action by filing a pro se hearing request.

5. On August 8, 2006, acting pursuant to 42 C.F.R. � 1001.2002(e), the I.G. notified Petitioner of his revised determination that she was to be excluded from participation in Medicare, Medicaid, and all other federal health care programs for a period of 10 years, based on the authority set out in section 1128(a)(1) of the Act, but disclaiming any further reliance on the aggravating factor set out at 42 C.F.R. � 1001.102(b)(1). I.G. Ex. 4.

6. The adjudication of guilt, judgment of conviction, and sentence based on Petitioner's violations of 18 U.S.C. �� 371, 1347, 1956(h), and 1956(a)(1)(B)(i), and 18 U.S.C. � 2, as described in Findings 1 and 2 above, constitute a "conviction" related to the delivery of an item or service under the Medicare program, within the meaning of sections 1128(a)(1) and 1128(i)(1) and (2) of the Act, and 42 C.F.R. � 1001.2.

7. Because of her conviction, Petitioner was subject to, and the I.G. was required to impose, a period of exclusion from Medicare, Medicaid, and all other federal health care programs of not less than five years. Act, sections 1128(a)(1) and 1128(c)(3)(B).

8. The acts resulting in Petitioner's conviction, as described in Findings 1 and 2 above, were committed over the period from on or about January 2000 through on or about April 2003. I.G. Exs. 1, 2.

9. 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.

10. As the result of her conviction, as described in Findings 1 and 2 above, Petitioner was sentenced to incarceration for a term of 51 months. I.G. Ex. 2.

11. Because Petitioner was sentenced to a term of incarceration, the aggravating factor set out in 42 C.F.R. � 1001.102(b)(5) is present.

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

13. The I.G.'s exclusion of Petitioner for a period of 10 years is supported by fact and law, is within a reasonable range, and is therefore not unreasonable. I.G. Exs. 1, 2, 3, and 4; Findings 1-12, above.

14. There are no disputed issues of material fact and summary affirmance is appropriate in this matter. Tanya A. Chuoke, R.N., DAB No. 1721 (2000); Thelma Walley, DAB No. 1367 (1992); 42 C.F.R. � 1005.4(b)(12).

V. Discussion

The essential elements necessary to support an exclusion based on section 1128(a)(1) of the Act are: (1) the individual to be excluded must have been convicted of a criminal offense; and (2) the criminal offense must have been related to the delivery of an item or service under title XVIII of the Act (Medicare) or any state health care program. Thelma Walley, DAB No. 1367; Boris Lipovsky, M.D., DAB No. 1363 (1992); Lyle Kai, R.Ph., DAB CR1262 (2004), rev'd on other grounds, DAB No. 1979 (2005). See Russell Mark Posner, DAB No. 2033, at 5-6 (2006). Those two essential elements are established in the record before me.

The fact of Petitioner's criminal conviction is shown by I.G. Ex. 2. The District Court's adjudication of Petitioner's guilt and the entry of judgment recorded in its August 25, 2005 Judgment in a Criminal Case satisfy the definitions of "conviction" set out at sections 1128(i)(1) and (2) of the Act. The I.G. has proved the first essential element.

The second essential element, the relation of Petitioner's criminal conviction to the delivery of items or services under the Medicare program, appears abundantly throughout I.G. Exs. 1 and 2.

Petitioner was convicted on Count 1 based on her violation of 18 U.S.C. � 371. The goals and objects of the conspiracy were explicitly identified as violations of 18 U.S.C. � 1347 and section 1128B(b)(2)(A) of the Act, 42 U.S.C. � 1320a-7b(b)(2)(A). I.G. Ex. 1, at 6. Petitioner conspired with others to pay bribes and kickbacks as part of a scheme to create fictitious patients and beneficiaries, and conspired to submit those fictitious patients' and beneficiaries' false claims to Medicare. She then performed a series of discrete overt acts which in themselves included the submission of false claims to the Medicare fiscal intermediary. I.G. Ex. 1, at 5-10.

Petitioner was convicted on Counts 6, 9, 10, 11, 13, 17, 18, 19, and 20 based on her violations of 18 U.S.C. � 1347. Those counts charged her with submission of false claims to Medicare. I.G. Ex. 1, at 12-14. The submission of false claims to the Medicare and Medicaid programs has been consistently held to be a program-related crime within the reach of section 1128(a)(1). Jack W. Greene, DAB No. 1078 (1989), aff'd sub nom. Greene v. Sullivan, 731 F. Supp. 835 (E.D. Tenn. 1990); Julius Williams, III, DAB CR1464 (2006); Kennard C. Kobrin, DAB CR1213 (2004); Norman Imperial, DAB CR833 (2001); Egbert Aung Kyang Tan, M.D., DAB CR798 (2001); Lorna Fay Gardner, DAB CR648 (2000); Mark Zweig, M.D., DAB CR563 (1999); Alan J. Chernick, D.D.S., DAB CR434 (1996).

Petitioner's conviction on Count 21 was based on her participation in a money-laundering conspiracy in violation of 18 U.S.C. � 1956(h). I.G. Ex. 1, at 14. The first paragraph of Count 21 adopts the General Allegations of the Indictment's first 13 paragraphs, and those paragraphs show that the funds derived from the abuse of the Medicare program were the funds that Petitioner and her co-conspirators hoped to conceal by means of the money-laundering conspiracy. I.G. Ex. 1, at 14-15.

Two completed acts of money-laundering in violation of 18 U.S.C. � 1956(a)(1)(B)(i) were the bases of Petitioner's conviction on Counts 31 and 32. I.G. Ex. 1, at 15-16. Those two substantive violations are linked to the illicit proceeds of program abuse in the same General Allegations adopted by the first introductory paragraph of Counts 22-32. I.G. Ex. 1, at 15.

I find that the required nexus and common-sense connection between each of the criminal acts of which Petitioner was convicted and the Medicare program is present here as a matter of fact. Berton Siegel, D.O., DAB No. 1467 (1994). Moreover, I believe that Petitioner's convictions for violating 18 U.S.C. � 1347, and for conspiring to violate 18 U.S.C. � 1347 and section 1128B(b)(2)(A) of the Act, are convictions for program-related offenses as a matter of law. The I.G. has proved the second essential element.

A full review of Petitioner's conviction is pending before the United States Court of Appeals for the Eleventh Circuit. Petitioner has based her opposition to the I.G.'s proposed exclusion on her position in the Eleventh Circuit: neither there nor here does she concede the validity of her conviction. To the contrary, she maintains her innocence and continues to deny all the charges of which she was found guilty by jury verdict. Her position manifests itself in two points to be addressed here: the first is the procedural effect of the undecided appeal on the finality of her conviction for purposes of this case, and the second is the intrinsic merit of her attack on the procedural soundness and the evidentiary sufficiency of her trial and conviction.

The first point was initially raised by Petitioner's "Request for Abeyance" received by the Civil Remedies Division on September 25, 2006. In that pleading, Petitioner asked in effect that this matter be stayed pending the outcome of her appeal in the Eleventh Circuit. I denied her request by Order of October 2, 2006, relying on the reasoning and authority of Gustavo Enrique Coll, M.D., DAB CR1253 (2004); Jeffery Gottlieb, M.D., a/k/a Jeffery Gotlieb, DAB CR1211 (2004); and Thomas Bruce West, M.D., DAB CR453 (1997). That reasoning and authority is perfectly consonant with the statutory language at section 1128(i)(1) of the Act, which language carefully points out that one of the several definitions of conviction includes situations "when a judgment of conviction has been entered against the individual . . . by a Federal . . . court, regardless of whether there is an appeal pending . . . ." The regulations provide a remedy should Petitioner's appeal be successful. 42 C.F.R. � 1001.3005(a). Unless her appeal is successful and achieves the reversal of the entire verdict by which she was found guilty, Petitioner remains convicted within the terms of the Act.

The second point is the real basis of Petitioner's resistance to the proposed exclusion: she simply denies the truth of the charges, the correctness of the verdict, and the validity of the judgment in the United States District Court, and relies on her briefing in the United States Court of Appeals to articulate here the reasons I should reject them. Her reasons and arguments provide no support for her position in this forum. Any form of collateral attack on predicate convictions in exclusion proceedings is precluded by regulation at 42 C.F.R. � 1001.2007(d), and that preclusion has been affirmed repeatedly by the Board. Lyle Kai, R.Ph., DAB No. 1979; Susan Malady, R.N., DAB No. 1816 (2002); Dr. Frank R. Pennington, M.D., DAB No. 1786 (2001); Joann Fletcher Cash, DAB No. 1725 (2000); Paul R. Scollo, D.P.M., DAB No. 1498 (1994); Chander Kachoria, R.Ph., DAB No. 1380 (1993).

Petitioner appears here pro se, however, and because of that fact I have taken additional care in reading her two Eleventh Circuit briefs. In doing so, I have been guided by the Board's reminders that pro se litigants should be offered "some extra measure of consideration" in developing their records and their cases. Louis Mathews, DAB No. 1574 (1996); Edward J. Petrus, Jr., M.D., et al., DAB No. 1264 (1991); see Mark K. Mileski, DAB No. 1945 (2004). I have considered them as together making up her Answer Brief in this case, and have searched them for any arguments or contentions that might go beyond a collateral attack on the District Court proceedings and raise a valid, relevant defense to the proposed exclusion. That search has been unproductive: I have found nothing that even by a generous standard could be so construed.

Once a predicate conviction within the purview of section 1128(a) has been demonstrated, exclusion for the minimum period of five years is mandatory. Mark K. Mileski, DAB No. 1945; Salvacion Lee, M.D., DAB No. 1850 (2002); Lorna Fay Gardner, DAB No. 1733 (2000); David A. Barrett, DAB No. 1461 (1994). The period of exclusion may be enhanced to more than five years if the I.G. demonstrates the existence of certain aggravating factors. If the I.G. undertakes to do so, a petitioner may attempt to limit or nullify the proposed enhancement through a showing of certain mitigating factors. The I.G. may offer evidence relating to any of the aggravating factors set out at 42 C.F.R. � 1001.102(b)(1)-(9). Those factors may be countered by evidence relating to any of the mitigating factors set forth at 42 C.F.R. �� 1001.102(c)(1)-(3). In this case the I.G. has asserted the presence of two aggravating factors.

The first aggravating factor asserted by the I.G. is specified at 42 C.F.R. � 1001.102(b)(2). That factor is present if "[t]he acts that resulted in the conviction, or similar acts, were committed over a period of one year or more." The Indictment on which Petitioner was tried and convicted demonstrates that factor. First, the two conspiracies of which Petitioner was a part each lasted over three years. Count 1 of the Information reads: "From in or around January 2000, and continuing through in or around April 2003 . . . the defendants . . . [and] PURA MEDINA, did knowingly and willfully combine, conspire, confederate and agree with each other . . . ." I.G. Ex. 1, at 5. The span of the conspiracy charged in Count 21 was the same as that charged in Count 1. I.G. Ex. 1, at 14. Next, the first overt act performed personally by Petitioner as part of the conspiracy charged in Count 1 took place on June 22, 2001, and the last took place on October 22, 2002. I.G. Ex. 1, at 8-10. The substantive crimes of which she was convicted in Counts 6, 9, 10, 11, 13, 17, 18, 19, and 20 spanned the period between February 8, 2001 in Count 6 and March 20, 2003 in Count 20. I.G. Ex. 1, at 12-14. Both substantive crimes charged in Counts 31 and 32 took place on April 25, 2002. Petitioner's conviction as charged in those 13 counts is sufficient to demonstrate the temporal span of her crimes as "one year or more." The I.G. has established the first aggravating factor.

The second aggravating factor relied on by the I.G. is specified at 42 C.F.R. � 1001.102(b)(5). The I.G. alleges that Petitioner's sentence included incarceration. The court records are plain that Petitioner was sentenced to a prison term of 51 months. I.G. Ex. 2, at 2. She has not completed that term of incarceration. There is no genuine issue of material fact as to the nature or length of the sentence. The I.G. has established this second aggravating factor. ⁽¹⁾

When the I.G. offers evidence of aggravating factors, a petitioner may respond by offering evidence relating to any of the mitigating factors set forth at 42 C.F.R. �� 1001.102(c)(1)-(3). Those mitigating factors appear immediately following the regulation's minatory expression that "[o]nly the following factors may be considered mitigating . . ." 42 C.F.R. � 1001.102(c). As to each of the mitigating factors, ". . . Petitioner ha[s] the burden of proving any mitigating factor by a preponderance of the evidence, since the mitigating factor is in the nature of an affirmative defense." Barry D. Garfinkel, M.D., DAB No. 1572, at 12 (1996). This allocation of the burden of proof, set out at 42 C.F.R. � 1005.15(b)(1), has been reaffirmed consistently. Stacey R. Gale, DAB No. 1941 (2004); Dr. Darren James, D.P.M., DAB No. 1828, at 7-8 (2002).

Petitioner has made no attempt explicitly to assert the existence of any of the mitigating factors. Without the slightest disregard of the rule that assigns to her the burden of proving any mitigating factor by a preponderance of the evidence, I have searched all of the documents she has submitted in this case for any suggestion that one or more of those mitigating factors might be brought into consideration. That search has revealed nothing that suggests any claim in mitigation. Since Petitioner was convicted of several felonies, 42 C.F.R. � 1001.102(c)(1) does not apply. Petitioner's briefing in the Eleventh Circuit vigorously argues her innocence, but does not argue that her conduct in connection with the events in the criminal case was affected by a mental, emotional, or physical condition that led to her reduced culpability at the time of those events. Thus, 42 C.F.R. � 1001.102(c)(2) cannot be brought into consideration. And there is nothing in her position in the Eleventh Circuit that points to a claim of productive cooperation with official investigations of health care fraud, thereby invoking the mitigating factors set out at 42 C.F.R. � 1001.102(c)(3).

The I.G.'s discretion in weighing the importance of aggravating and mitigating factors in exclusion cases commands great deference when reviewed by Administrative Law Judges (ALJs). This rule evolved in such Board decisions as Barry D. Garfinkel, M.D., DAB No. 1572; Frank A. DeLia, D.O., DAB No. 1620 (1997), and Gerald A. Snider, M.D., DAB No. 1637 (1997). With the Board's decisions in Joann Fletcher Cash, DAB No. 1725; Stacy Ann Battle, D.D.S., et al., DAB No. 1843 (2002), Keith Michael Everman, D.C., DAB No. 1880 (2003), and Jeremy Robinson, DAB No. 1905 (2004), the rule took its present form.

Stated in its essence, the rule forbids that the ALJ substitute her or his own view of what period of exclusion might appear "best" in any given case for the view of the I.G. on the same evidence. In general, the Board has insisted that ALJs may reduce an exclusionary period only when they discover some meaningful evidentiary failing in the aggravating factors upon which the I.G. relied, or when they discover evidence reliably establishing a mitigating factor not considered by the I.G. in setting the enhanced period. Jeremy Robinson, DAB No. 1905. The I.G.'s revised determination to exclude Petitioner for a period of 10 years represents a substantial downward revision of his initial proposal to impose an 18-year period of exclusion. That downward revision is based explicitly on the I.G.'s disclaimer of reliance on the "amount-of-loss" aggravating factor set out at 42 C.F.R. � 1001.102(b)(1). To support the reasonableness of the 10-year period, the I.G. relies on, and has proven, only the two aggravating factors discussed above. There are no variances now between what the evidence shows and what the I.G. considered in his revised determination.

Where, as here, all of the aggravating factors on which the I.G. now relies are present and there are no mitigating factors, a holding that the exclusion period chosen by the I.G. was unreasonable could be reached only through an exercise that the Cash-Battle-Everman-Robinson rule forbids. The only question now before me is whether the exclusion period is within a reasonable range. In the instant case, the proposed 10-year period is commensurate with the range established as reasonable in Jorge Miguel Perez, DAB CR951 (2002) and Farhad Mohebban, M.D., DAB CR686 (2000). I employ those cases as points of reference because they were based on exclusions pursuant to section 1128(a)(1) of the Act and on proof of the same two aggravating factors proven here, but I also note that the period over which Petitioner's crimes took place is more than three times the minimum necessary to invoke the relevant factor, and that the prison term to which Petitioner was sentenced represents a "relatively substantial" and far more than "token" incarceration. Jeremy Robinson, DAB No. 1905; Jason Hollady, M.D., DAB No. 1855 (2002). ⁽²⁾

Summary disposition in a case such as this is appropriate when there are no disputed issues of material fact and when the undisputed facts, clear and not subject to conflicting interpretation, demonstrate that one party is entitled to judgment as a matter of law. Tanya A. Chuoke, R.N., DAB No. 1721. Summary disposition is explicitly authorized by the terms of 42 C.F.R. � 1005.4(b)(12), and this forum looks to FED. R. CIV. P. 56 for guidance in applying that regulation. Robert C. Greenwood, DAB No. 1423 (1993); Thelma Walley, DAB No. 1367; John W. Foderick, M.D., DAB No. 1125 (1990). When the undisputed material facts of a case support summary disposition, a full evidentiary hearing is unnecessary. Surabhan Ratanasen, M.D., DAB No. 1138 (1990); John W. Foderick, M.D., DAB No. 1125. The material facts in this case are undisputed, clear, and unambiguous. They support summary disposition as a matter of law, and this Decision issues accordingly.

VI. Conclusion

For the reasons set out above, the I.G.'s Motion for Summary Affirmance should be, and it is, GRANTED. The I.G.'s exclusion of Petitioner, Pura Esther Medina, 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, is sustained.

Richard J. Smith

Administrative Law Judge

1. Petitioner's briefing in the Eleventh Circuit includes a challenge to the length of her prison term as "unreasonable." It does not, however, go so far as to argue that if the guilty verdicts are upheld she still should not be incarcerated at all. Petitioner's position in the Eleventh Circuit is that if the United States District Court had correctly evaluated her adjusted base offense level, her "guideline sentencing range would have been reduced to 27-33 months, significantly lower than the range calculated by the district court." No. 05-14864-A, Brief of Appellant Pura Medina, at 49-52; Reply Brief of Appellant Pura Medina, at 11-13. Thus, while I understand this argument to be relevant to the weight given to the length of Petitioner's prison term in assessing her trustworthiness, I do not understand it to place in genuine dispute the fact that Petitioner's sentence includes a term of incarceration. See note 2, infra.

2. Even if Petitioner's prison term were reduced to a term of 27-33 months, as she suggests in her Eleventh Circuit briefing, it would still be a relatively substantial, far-more-than-token term. See note 1, supra.