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CASE | DECISION | JUDGE | FOOTNOTES

Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD
Civil Remedies Division
IN THE CASE OF  


SUBJECT:

Becalo Utuk,

Petitioner,

DATE: December 21, 2006
                                          
             - v -

 

The Inspector General.

Docket No.C-06-302
Decision No. CR1547
DECISION
...TO TOP

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, Becalo Utuk, from participation in Medicare, Medicaid, and all other federal health care programs for a period of 20 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 support the reasonableness of the I.G.'s revised determination to enhance that period of exclusion to 20 years. For those reasons, I grant the I.G.'s Motion for Summary Affirmance.

I. Procedural Background

Petitioner pro se Becalo "Becky" Utuk was licensed in 1992 as a Registered Nurse in the State of Texas. Beginning in September 2002, she was the owner and operator of All Divine Health Services, a business located in Lufkin, Texas. All Divine Health Services was a supplier of durable medical equipment to the Medicare Part B program.

On February 13, 2004, the Federal Grand Jury sitting for the United States District Court for the Eastern District of Texas handed up a nine-count Indictment naming Petitioner and one other co-defendant in a scheme to defraud the Medicare Part B program through the submission of fraudulent claims for durable medical equipment purportedly supplied by All Divine Health Services. Petitioner was named in all nine counts of the Indictment.

Represented by counsel, Petitioner reached a plea agreement with the United States on June 25, 2004. By that agreement, she pleaded guilty to Count I of the Indictment and admitted that she had conspired to commit the offense of health care fraud, in violation of 18 U.S.C. � 371. The plea agreement stipulated that for sentencing purposes the amount of loss to the Medicare program was $1,759,771.59. The date on which Petitioner's guilty plea was tendered and accepted does not appear in this record.

Petitioner appeared with counsel for sentencing on October 12, 2004. She was sentenced to a 46-month prison term, followed by a two-year period of probation. In addition, Petitioner was required to pay restitution in the amount stipulated as the loss to Medicare, $1,759,771.59, for which amount Petitioner was liable jointly and severally with her co-defendant. As the Plea Agreement required, the United States moved for the dismissal of the remaining eight counts of the Indictment.

The Board of Nurse Examiners for the State of Texas accepted the voluntary surrender of Petitioner's Registered Nurse license effective August 13, 2004. The Board's action was explicitly based on Petitioner's conviction and sentence in United States District Court.

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 October 31, 2005, the I.G. notified Petitioner that she was to be excluded for a period of 25 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 25 years was based on the apparent presence of three aggravating factors set out at 42 C.F.R. � 1001.102(b)(1), (b)(5), and (b)(9). The I.G.'s letter did not acknowledge the existence of any of the mitigating factors set out at 42 C.F.R. �� 1001.102(c)(1)-(3), and of course did not reflect the I.G.'s consideration of any of those mitigating factors in determining the proposed length of Petitioner's exclusion.

Acting pro se, Petitioner sought review of the I.G.'s action by her letter dated February 28, 2006, to which she attached a copy of an earlier pro se letter dated December 6, 2005, addressed to the author of the I.G.'s October 31, 2005 letter and responding to it. On March 1, 2006, the United States District Court ordered that Petitioner's sentence be reduced to a term of incarceration of 36 months. The District Court's Order was based on the United States' motion filed pursuant to FED. R. CRIM. P. 35(b) and was filed under seal.

I convened a prehearing conference by telephone on June 2, 2006, pursuant to 42 C.F.R. � 1005.6. Petitioner's December 6, 2005 pro se letter was a clear expression of her intention to appeal the proposed exclusion, and neither the I.G., nor I found reason to challenge the timeliness of Petitioner's pro se efforts to perfect this appeal. The I.G. expressed the intention to seek 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 5, 2006. No reference to the United States District Court's action on March 1, 2006 was made during the conference, and no reference to it appears in that Order.

The I.G.'s Motion for Summary Affirmance and supporting Brief were timely filed on June 28, 2006. Petitioner timely filed her Answer Brief on July 24, 2006. That Answer Brief, among other things, alluded to but did not provide details or proof of facts which might establish the mitigating factor set out at 42 C.F.R. �1001.102(c)(3). The I.G.'s Reply Brief was timely filed on August 10, 2006.

Petitioner's Response Brief was expected to be the closing pleading in this case, and it was due September 1, 2006. Instead of filing a single brief, Petitioner submitted two separate pleadings: "Petioner [sic] Utuk's Answer Briefly . . ." on August 29, 2006, and "Petitioner Utuk's Response in Opposition . . . " on August 31, 2006. The first pleading was accompanied by five incorrectly-marked proposed exhibits.

The details of these submissions, and the details of my redesignation of them as "Petitioner's Response Brief" (P. Resp. Br.) and renumbering of the exhibits (P. Exs.), all appear in the first numbered section of my Interim Order of September 18, 2006. All further discussion of them in this Decision will employ that system of redesignation and renumbering.

The second numbered section of that Interim Order addressed and rejected Petitioner's assertion of the right to appointed counsel in this appeal.

But Petitioner's Response Brief and P. Exs. 3 and 4 did raise for the first time a genuine and substantiated issue of material fact. Petitioner asserted again, and with more detail (P. Resp. Br., at 3, paragraph 9, and at 5), that she was entitled to the benefit of the mitigating factor set out at 42 C.F.R. �1001.102(c)(3). In those exhibits appeared both reason to treat her assertions of fact as credible and reason to understand why the I.G. might have been unaware of those facts. Petitioner's claim to the mitigating factor was based on alleged FED. R. CRIM. P. 35(b) proceedings which on March 1, 2006 resulted in the reduction of her prison term from 46 months to 36 months. The third and fourth numbered sections of the Interim Order addressed those questions and established a procedure for resolving them.

The I.G. responded to the Interim Order on October 30, 2006, by verifying the existence of the mitigating factor specified at 42 C.F.R. �1001.102(c)(3), and, by announcing that after considering it, the I.G. had revised the proposed period of Petitioner's exclusion downward from 25 years to 20 years.

The I.G.'s action led to my Order of October 30, 2006, in which I ruled that the only remaining issue of material fact had been resolved in Petitioner's favor, and that she was entitled to the benefit of the mitigating factor she had claimed. That Order permitted the parties a final opportunity to argue the reasonableness of the proposed 20-year exclusion in the context of a record that conclusively demonstrated the existence of the aggravating factors set out at 42 C.F.R. � 1001.102(b)(1), (b)(5), and (b)(9), and the mitigating factor set out at 42 C.F.R. � 1001.102(c)(3). The I.G. responded on November 8, 2006. Petitioner responded on November 16, 2006, but her pleading entitled, "Petitioner's Final Argument for Unreasonableness," did not reach the Civil Remedies Division until November 28, 2006. The record of this case closed for purposes of 42 C.F.R. � 1005.20(c) on that date.

The evidentiary record on which I decide this case contains 10 exhibits. The I.G. submitted five exhibits with his June 28, 2006 filings, marked I.G. Exhibits 1-5 (I.G. Exs. 1-5). They were admitted to the record of this case as designated in the Interim Order of September 18, 2006. Petitioner has submitted five exhibits during the briefing cycle. As noted in the Interim Order, I have renumbered four of them and have admitted them as Petitioner's Exhibits 1-4 (P. Exs. 1-4). Petitioner's handwritten proposed Exhibit E is not admitted for the reasons set out in the Interim Order. The I.G.'s revised determination appears in I.G. Exhibit 6 (I.G. Ex. 6) attached to the I.G.'s October 30, 2006 Response; it is admitted.

II. Issues

The issues before me are limited to those noted at 42 C.F.R. � 1001.2007(a)(1), and both issues must be resolved in favor of the I.G.'s position. In the context of this record, those two issues 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 20-year exclusion is unreasonable.

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 20 years is not unreasonable. All of the aggravating factors relied on in the I.G.'s revised determination to enhance the period to 20 years are fully demonstrated in the record before me, and the mitigating factor relied on by Petitioner has likewise been fully demonstrated and has been considered by the I.G. in reaching his revised determination. In the context of these factors, I believe that the proposed length of the period of exclusion is within a reasonable range.

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 "; or "when there has been a finding of guilt against the individual . . . by a Federal . . . court." Act, section 1128(i)(1), 42 U.S.C. � 1320a-7(i)(1); 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 20 years, and relies on the three aggravating factors listed at 42 C.F.R. � 1001.102(b)(1), (b)(5) and (b)(9).

If the I.G. determines 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). In this case, Petitioner seeks to reduce the period of Petitioner's exclusion to less than 20 years, and relies on the mitigating factor listed at 42 C.F.R. � 1001.102(c)(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).

IV. Findings and Conclusions

I find and conclude as follows:

1. On a date not established by this record, in the United States District Court for the Southern District of Texas, Petitioner Becalo Utuk pleaded guilty to one count of conspiring to commit health care fraud, in violation of 18 U.S.C. � 371; her plea was based on a Plea Agreement signed on June 25, 2004, and filed under seal in the United States District Court on or about that date. I.G. Ex. 2.

2. Final adjudication of guilt, judgment of conviction, and sentencing based on that plea of guilty were imposed on Petitioner in the United States District Court on October 12, 2004. I.G. Ex. 3.

3. On October 31, 2005, 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 25 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)(5), and (b)(9). I.G. Ex. 5.

4. On or about December 6, 2005, Petitioner perfected her appeal from the I.G.'s action by filing a pro se hearing request.

5. On motion of the United States pursuant to FED. R. CRIM. P. 35(b), the United States District Court reduced Petitioner's sentence on March 1, 2006 to a prison term of 36 months. The United States District Court's Order was filed under seal. P. Ex. 3.

6. On October 19, 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 20 years, based on his concession that Petitioner was entitled to claim benefit of the mitigating factor listed at 42 C.F.R. � 1001.102(c)(3). I.G. Ex. 6.

7. The adjudication of guilt, judgment of conviction, and sentence based on Petitioner's violation of 18 U.S.C. � 371, as described in Finding 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.

8. 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).

9. The acts resulting in Petitioner's conviction as described in Finding 2 above caused a financial loss to the Medicare program of $1,759,771.59. I.G. Exs. 2, 3.

10. Because the acts resulting in Petitioner's conviction caused a financial loss to the Medicare program of $5,000 or more, the aggravating factor set out in 42 C.F.R. � 1001.102(b)(1) is present.

11. As the result of her conviction as described in Finding 2 above, Petitioner was sentenced to incarceration, first for a term of 46 months, and later to a reduced term of 36 months. I.G. Ex. 3; P. Ex. 3.

12. 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.

13. As a consequence of the same set of circumstances that served as the basis for the conviction described in Finding 2 above, Petitioner has been the subject of an adverse action by the Board of Nurse Examiners for the State of Texas, effective August 13, 2004. I.G. Ex. 4.

14. Because Petitioner has been the subject of an adverse action by the Board of Nurse Examiners for the State of Texas based on the same set of circumstances that served as the basis for the conviction described above, the aggravating factor set out in 42 C.F.R. � 1001.102(b)(9) is present.

15. The mitigating factor set out in 42 C.F.R. � 1001.102(c)(3) is present. P. Ex. 3.

16. The I.G.'s exclusion of Petitioner for a period of 20 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 1-14, above.

17. 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. 3. Although the date and circumstances of Petitioner's guilty plea do not appear in this record, the District Court's adjudication of Petitioner's guilt and its judgment of her conviction on October 12, 2004, as recorded in its October 14, 2004 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 throughout I.G. Ex. 1, at 1-10, and is reflected in I.G. Ex 3, at 1. Petitioner was convicted on her guilty plea to Count I of the Indictment, based on her violation of 18 U.S.C. � 371, the federal anti-conspiracy statute. The goals and objects of the conspiracy were explicitly identified as violations of 18 U.S.C. � 1347 and 42 U.S.C. � 1320a-7b(b)(2)(A), section 1128B(b)(2)(A) of the Act. I.G. Ex. 1, at 5-6. Petitioner conspired with a co-defendant in a scheme to create false, misleading, and deceptive documents purporting to establish patients' and beneficiaries' entitlement to and receipt of motorized wheelchairs and similar items of durable medical equipment, and conspired to submit false claims based on those documents to Medicare. She then performed a series of discrete overt acts which in themselves included the submission of false claims to Medicare. I.G. Ex. 1, at 8-10. 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) of the Act. 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).

I find that the required nexus and common-sense connection between the crime 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 conviction for conspiring to violate 18 U.S.C. � 1347 and section 1128B(b)(2)(A) of the Act, 42 U.S.C. � 1320a-7b(b)(2)(A), is a conviction for a program-related offense as a matter of law. The I.G. has proved the second essential element.

Petitioner does not deny the fact of her conviction or the fact of its relation to the Medicare Part B program. Her Answer Brief and her Response Brief argue only against the reasonableness of the enhanced period as originally proposed, and her Final Argument for Unreasonableness continues her objection to the length of the period even after its revision downward. Some of those arguments emphasize her guilty plea as a manifestation of her remorse and an example of her candor with authorities. See, e.g., P. Ans. Br, at 3-4; P. Resp. Br., at 2. While she nowhere directly concedes that she is subject to exclusion for the minimum mandatory period, at least one passage of her Answer Brief implies that she would accept the minimum mandatory period as reasonable:

The rehabilitative goals of the Department of Health and Human Services would be better served by a minimum exclusion instead of a lengthened exclusion. A minimum exclusion would reflect the potential for reform and would more closely reflect considerations of fairness considering Utuk's mitigating factors as set forth above.

P. Ans. Br., at 4.

The factors that govern the enhancement of the exclusionary period are discussed in detail below; at this point, however, Petitioner has articulated no persuasive argument that she is not subject to the mandatory minimum period of exclusion required by section 1128(a)(1) of the Act. Petitioner appears here pro se, however, and because of that fact I have taken additional care in reading her pleadings, and have searched them for any arguments or contentions that might raise a valid, relevant defense to the proposed exclusion. That search has been unproductive: I have found nothing that by any reasonable standard could be so construed. Her conviction satisfies the two elements essential in a proceeding under section 1128(a)(1).

Once a predicate conviction within the ambit of section 1128(a) of the Act has been demonstrated, exclusion for the minimum period of five years is mandatory. Mark K. Mileski, DAB No. 1945 (2004); 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. proves the existence of certain aggravating factors listed at 42 C.F.R. � 1001.102(b)(1)-(9). If the I.G. undertakes to do so, a petitioner may attempt to limit or nullify the proposed enhancement through proof of certain mitigating factors set out at 42 C.F.R. � 1001.102(c)(1)-(3). In this case the I.G. has asserted the presence of three aggravating factors.

The first aggravating factor on which the I.G. relies is present when "[t]he acts resulting in the conviction, or similar acts . . . caused . . . a financial loss to a Government program . . . of $5,000 or more." 42 C.F.R. � 1001.102(b)(1). Petitioner was ordered to pay $1,759,771.59 in restitution to the Centers for Medicare (and Medicaid Services) as part of her sentence. I.G. Ex. 3, at 6. The law of this forum supports reliance on this adjudicated amount of restitution as prima facie proof of the amount of loss. Dr. Darren J. James, D.P.M., DAB CR860 (2002); Ruth Ferguson, DAB CR725 (2000); Steven Alonzo Henry, M.D., DAB CR638 (2000); Thomas P. Whitfield, D.P.M., DAB CR539 (1998); Gilbert Ross, M.D., et al., DAB CR478 (1997). But here it is unnecessary to rely on the amount of restitution as the only statement of the total loss caused by Petitioner's crime, for the Plea Agreement submitted to the District Court as the basis of Petitioner's guilty plea specifies the same amount. I.G. Ex. 2, at 1. That very large sum satisfies the requirement of 42 C.F.R. � 1001.102(b)(1). The I.G. has established this 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 it does. Petitioner was first sentenced to a prison term of 46 months. I.G. Ex. 3. On motion of the United States pursuant to FED. R. CRIM. P. 35(b) the United States District Court reduced her sentence on March 1, 2006 to a prison term of 36 months. P. Ex. 3. She is now serving that term. There is no genuine issue of material fact as to the nature or the revised length of the sentence. The I.G. has established this second aggravating factor.

The third aggravating factor, set out at 42 C.F.R. � 1001.102(b)(9), is present when a convicted individual "has been the subject of any other adverse action by any . . . 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 Board of Nurse Examiners for the State of Texas accepted the voluntary surrender of Petitioner's license effective August 13, 2004. The Board's action was explicitly based on her conviction and sentence in United States District Court. I.G. Ex. 4, at 2. The Board concluded as a matter of law that the evidence it had received in the license proceedings was sufficient to prove that Petitioner's conviction reflected "unprofessional or dishonorable conduct . . . likely to deceive, defraud, or injure a patient or the public." TEX. OCC. CODE � 301.452(b)(10). The "other adverse action" aggravating factor is present here. The I.G. properly invoked it.

Petitioner's Final Argument for Unreasonableness (P. Fin. Arg.) offers the additional theory that the three proven aggravating factors are somehow unfairly "stacked"or aggregated against her: it is her position that "Petitioner's crime incorporated all the elements of these types of factors . . . to separate them out seems redundant." P. Fin. Arg., at 2. Her position is baseless and borders on frivolous, and it represents a regrettable departure from her otherwise candid posture in this case. It should be obvious to her that not every felon convicted of conspiring to swindle Medicare is sentenced to prison, that not every felon-conspirator who victimizes the Medicare program succeeds in bilking it of more than $5000, and that not every felon convicted of conspiring to cheat the program is also answerable to a professional licensing board. As this evidence demonstrates, Petitioner's conviction, the criminal conduct from which it grew, and the consequences that followed it are linked in the particular facts of this case only. Her criminal acts are in no legal sense whatsoever offenses necessarily included in any violation of 18 U.S.C. � 371, nor are their consequences necessarily the result of any conviction based on that statute.

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 are listed immediately following the regulation's limiting language specifying 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).

When Petitioner submitted P. Exs. 3 and 4 on August 29, 2006, she may not have proven the existence of the mitigating factor listed at 42 C.F.R. � 1001.102(c)(3) by a strict preponderance-of-evidence standard. But as an incarcerated pro se petitioner, she most certainly did raise the issue with sufficient detail and corroboration to invoke the admonitions by the Departmental Appeals Board (Board) that pro se litigants should be offered "some extra measure of consideration" in developing their records. 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.

It will be recalled that most of the facts supporting Petitioner's claim to the mitigating factor, and the proceedings based on FED. R. CRIM. P. 35(b), remain under seal in the United States District Court. But those facts need not -- and perhaps ought not -- be spread on this record, for the I.G. has conceded that the mitigating factor is present and has acknowledged the District Court's reduction of Petitioner's prison term based on those facts and the Rule 35(b) proceedings. I.G. Ex. 6. The mitigating factor listed at 42 C.F.R. � 1001.102(c)(3) has been established by a preponderance of the evidence and Petitioner is entitled to claim its benefit.

Petitioner has made no explicit attempt to assert the existence of any other mitigating factors. Without disregarding 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 additional mitigating factors might be brought into consideration. That search has revealed nothing that suggests any additional claim in mitigation. Her expressions of remorse and contrition, however sincere, do not meet the strict definitions of any mitigating factors listed at 42 C.F.R. � 1001.102(c). Since Petitioner was convicted of a felony, 42 C.F.R. � 1001.102(c)(1) cannot apply. Nothing in her briefing argues 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. None of the exhibits before me makes such a suggestion. Thus, 42 C.F.R. � 1001.102(c)(2) cannot be brought into consideration. The only mitigating factor Petitioner has asserted and proven is the mitigating factor 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). The source of this doctrine is the belief of the regulations' authors that the I.G. is invested with "vast experience in implementing exclusions . . . ." 57 Fed. Reg. 3298-3321 (January 29, 1992). 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 (2000); 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 present form, the rule forbids that ALJs substitute their own views 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.

To support the reasonableness of the 20-year period, the I.G. relies on, and has explicitly weighed, the three aggravating factors and the one mitigating factor discussed above. The I.G.'s revised determination to exclude Petitioner for a period of 20 years represents a substantial downward revision of his initial proposal to impose an 25-year period of exclusion. That downward revision is based explicitly on the I.G.'s acknowledgment that Petitioner is entitled to claim the benefit of the mitigating factor set out at 42 C.F.R. � 1001.102(c)(3), and on the I.G.'s further explicit acknowledgment that the United States District Court viewed the facts behind that mitigating factor as warranting a reduction in her prison sentence of 10 months from the 46 months originally imposed. (1) There are no variances now between what the evidence shows and what the I.G. considered in his revised determination.

Where, as here, the I.G. has weighed all of the aggravating and mitigating factors established by the evidence, and where, as here, there are no aggravating or mitigating factors relied on but unproven, a holding that the exclusion period chosen by the I.G. is unreasonable could be reached only through an exercise that the Cash-Battle-Everman-Robinson rule forbids that I undertake. The only question now before me is whether the exclusion period as revised is within a reasonable range.

In the instant case, the proposed 20-year period is commensurate with the range established as reasonable in such cases as Peggy A. Bisig, a/k/a Peggy A. Fritz, DAB CR1416 (2006); Ralph J. Sharow, D.M.D., DAB CR1188 (2004); Anwar Yamini, Sr., DAB CR1095 (2003); Sheshiqiri Rao Vavilikolanu, DAB CR1024 (2003); Connie Lynn Neal, a/k/a Connie L. Diehl, DAB CR977 (2002); and Caroline Haggard Flores, DAB CR675 (2000). I employ those cases as very general points of reference because they were, like this one, based on convictions of crimen falsi, and like this one, caused very large losses, resulted in substantial prison sentences, or both. Sharow and Vavilikolanu rested on the "other adverse action" factor as well. The loss attributed to Petitioner's crime is vastly in excess of the minimum necessary to invoke the "amount of loss" factor: the restitution ordered in this case is half-again greater than the amount described as "staggering" in Arkady Rozenberg, DAB CR987 (2002). The reduced 36-month prison term to which Petitioner was eventually sentenced still represents a "relatively substantial" and far more than "token" incarceration. Jeremy Robinson, DAB No. 1905; Jason Hollady, M.D., DAB No. 1855 (2002). The 20-year length of the proposed exclusion is within a reasonable range, and it is therefore not unreasonable.

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 must be, and it is, GRANTED. The I.G.'s exclusion of Petitioner Becalo Utuk from participation in Medicare, Medicaid, and all other federal health care programs for a period of 20 years, pursuant to the terms of section 1128(a)(1) of the Act, is sustained.

JUDGE
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Richard J. Smith

Administrative Law Judge

FOOTNOTES
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1. The United States District Court's action on March 1, 2006 shortened the length of Petitioner's prison term by 10 months, or by approximately 21.7% of the original term. The I.G.'s revised determination shortened the period of Petitioner's proposed exclusion by five years, or by 20.0% of the originally-proposed period. Thus, although the question of whether the I.G.'s revised determination is now within a "reasonable range" remains to be discussed, it is clear that the weight given by the I.G. to the facts establishing the mitigating factor in the context of 42 C.F.R. � 1001.102(c)(3) is commensurate with the weight given those facts by the United States District Court in the context of the FED. R. CRIM. P. 35(b) proceedings. Insofar as this Decision is obliged to consider the reasonableness of the absolute or proportional amount by which the I.G. reduced his originally-proposed period of exclusion upon discovery of the mitigating factor, I have no difficulty in finding that five-year, 20.0% reduction entirely reasonable.
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