MEMORANDUM OPINION
AMY
BERMAN JACKSON UNITED STATES DISTRICT JUDGE
Plaintiff
Lena Lasher (“Lasher”) has brought this action
under 42 U.S.C. § 405(g) challenging the decision of the
Secretary of Health and Human Services (“DHHS”)
to exclude her from participation in federal health care
programs for a period of 10 years.[1] This matter is before the
Court on the Defendants' Motion to Dismiss or, in the
Alternative, for Summary Judgment. [Dkt. 14.] For the reasons
discussed below, the Court will grant the motion. In light of
Lasher's conviction of multiple counts involving fraud in
health care related federal programs, the sentence she
received, and all of the factors considered by the agency,
her exclusion for the ten year period was reasonable,
supported by substantial evidence, and consistent with the
applicable law. Lasher's efforts to challenge her
underlying conviction in this proceeding are misplaced, and
none of the constitutional violations she has alleged provide
a basis to alter the agency's decision.
I.
BACKGROUND
A.
Exclusion from Federal Health Care Programs
There
are “certain bases upon which individuals . . . must[]
be excluded from participation in Medicare, Medicaid and all
other Federal health care programs.” 42 C.F.R. §
1001.1(a). One such basis is an individual's conviction
of a program-related offense:
The Secretary shall exclude . . . from participation in any
Federal health care program . . . [a]ny individual or entity
that has been convicted for an offense which occurred after
August 21, 1996, under Federal or State law, in connection
with the delivery of a health care item or service or with
respect to any act or omission in a health care program . . .
operated by or financed in whole or in part by any Federal,
State, or local government agency, of a criminal offense
consisting of a felony relating to fraud, theft,
embezzlement, breach of fiduciary responsibility, or other
financial misconduct.
42 U.S.C. § 1320a-7(a)(3); see 42 C.F.R. §
1001.101. An individual is deemed “convicted of a
criminal offense . . . when a judgment of conviction has been
entered against [her] by a Federal, State, or local court,
regardless of whether there is an appeal pending or whether
the judgment of conviction or other record relating to
criminal conduct has been expunged.” 42 U.S.C. §
1320a-7(i)(1).
This
exclusion authority is delegated to DHHS' Inspector
General (“IG”). See 48 Fed. Reg. 21662
(May 13, 1983). The IG issues a notice of exclusion which
specifies the period of exclusion and its effective date.
See 42 U.S.C. § 1320a-7(c), (f)(1).
The
mandatory exclusion period lasts a minimum of five years. 42
U.S.C. § 1320a-7(c)(3)(B); 42 C.F.R. § 1001.102(a).
However, if aggravating factors are found, the IG may extend
the mandatory exclusion period. See 42 C.F.R. §
1001.102(b). Aggravating factors include “acts that
resulted in conviction . . . committed over a period of one
year or more, ” 42 C.F.R. § 1001.102(b)(2), and a
sentence including incarceration, 42 C.F.R. §
1001.102(b)(5). If aggravating factors are found to exist,
the IG may consider “mitigating factors . . . as a
basis for reducing the period of exclusion to no less than 5
years.” 42 C.F.R. § 1001.102(c). For example, the
IG may consider a sentencing court's
“determin[ation] that the individual had a mental,
emotional or physical condition before or during the
commission of the offense that reduced the individual's
culpability, ” 42 C.F.R. § 1001.102(c)(2), as a
mitigating factor. An individual who has been excluded may
apply for termination of the exclusion. See 42
U.S.C. § 1320a-7(g).
An
individual whom the IG has excluded may request a hearing
before an administrative law judge (“ALJ”) of the
Civil Remedies Division (“CRD”) of DHHS'
Departmental Appeals Board (“DAB”), see
42 U.S.C. § 1320a-7(f)(1); 42 C.F.R. § 1005.2(a),
“on the issues of whether: (i) [t]he basis for the
imposition of the sanction exists, and (ii) [t]he length of
exclusion is unreasonable.” 42 C.F.R. §
1001.2007(a)(1). The parties to this proceeding are the
petitioner and the IG. 42 C.F.R. § 1005.2(b). A hearing
request must be submitted to the DAB in writing, 42 C.F.R.
§ 1005.2(c), and it shall “contain a statement as
to the specific issues or findings of fact and conclusions of
law in the notice letter with which the petitioner . . .
disagrees, and the basis for . . . her contention that the
specific issues or findings and conclusions were
incorrect.” 42 C.F.R. § 1005.2(d).
Generally,
the parties may conduct discovery, enter into stipulations of
facts or law, introduce evidence, present and cross-examine
witnesses, and make oral arguments to the ALJ. See
42 C.F.R. § 1005.3. In discharging his or her duties to
“conduct a fair and impartial hearing, avoid delay,
maintain order and assure that a record of the proceeding is
made, ” 42 C.F.R. § 1005.4(a), the ALJ may, among
other things, “[r]eceive, rule on, exclude or limit
evidence, ” 42 C.F.R. § 1005.4(b)(10), and
“[c]onduct any conference . . . or hearing in person
or, upon agreement of the parties, by telephone.” 42
C.F.R. § 1005.4(b)(13). Ordinarily, witness testimony is
given orally. 42 C.F.R. § 1001.16(a). However, the ALJ
may admit non-expert testimony “in the form of a
written statement.” 42 C.F.R. § 1005.16(b).
The ALJ
conducts at least one prehearing conference, 42 C.F.R. §
1005.6(a), during which stipulations, witnesses, scheduling,
discovery and other matters are discussed. See 42
C.F.R. § 1005.6(b). After the prehearing conference, the
ALJ “issue[s] and order containing the matters [the
parties have] agreed upon” and any matters the ALJ had
ordered during the prehearing conference. 42 C.F.R. §
1005.6(c).
The ALJ
may issue a decision based on the written record “if
the parties do not identify any proposed witnesses, do not
offer the written direct testimony of any witnesses when
ordered to do so, or do not request an opportunity to
cross-examine a witness whose written direct testimony has
been offered.” Administrative Record
(“A.R.”) at 45 (CRD Proc. 19(d)). “The ALJ
will issue an initial decision based only on the record,
which will contain findings of fact and conclusions of
law.” 42 C.F.R. § 1005.20(a).
The
petitioner may appeal the ALJ's initial decision to
DAB's Appellate Division. 42 C.F.R. § 1005.21(a).
Along with the notice of appeal, the petitioner must submit
“a written brief specifying exceptions to the initial
decision and reasons supporting the exceptions.” 42
C.F.R. § 1005.21(c). “DAB will not consider any
issue not raised in the parties' briefs, nor any issue in
the briefs that could have been ...