# Hameedi, M.D. v. Becerra

> District Court, E.D. New York · September 17, 2024

URL: https://www.frixlaw.com/law-library/cases/10659433

## Case

- **Court:** District Court, E.D. New York
- **Decided:** September 17, 2024
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

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## How later opinions describe it (automated extraction)

- finding the Secretary’s procedures to be sufficient to satisfy due process

## Opinion text

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

ASIM A. HAMEEDI, M.D.,
MEMORANDUM & ORDER
Plaintiff, 23-CV-2654 (HG)

v.

XAVIER BECERRA, in his official capacity
as Secretary, United States Department of
Health and Human Services,

Defendant.

HECTOR GONZALEZ, United States District Judge:
Plaintiff Asim A. Hameedi, M.D., seeks review of a final decision of Defendant Xavier
Becerra, Secretary of Health and Human Services (the “Secretary”) that excluded him from
participation in Medicare, Medicaid, and all other federal health care programs for 11 years
pursuant to 42 U.S.C. § 1320a-7(a)(3). Both Plaintiff and the Secretary have moved for
judgment on the pleadings pursuant to Rule 12(c). ECF No. 10 (Defendant’s Motion for
Judgment on the Pleadings); ECF No. 13 (Plaintiff’s Motion for Judgment on the Pleadings).
Because the Secretary’s final decision is supported by substantial evidence, was not arbitrary and
capricious, and did not violate Plaintiff’s due process rights, the Court affirms the Secretary’s
decision. Accordingly, the Court grants the Secretary’s motion for judgment on the pleadings,
denies Plaintiff’s motion, and dismisses Plaintiff’s case.
BACKGROUND
On February 9, 2018, Plaintiff, a cardiologist and physician licensed in New York,
pleaded guilty to conspiracy to commit health care fraud in violation of 18 U.S.C. § 1347 based
on his participation in “a scheme and artifice to defraud a health care benefit program.” ECF No.
6 at 588–98 (Administrative Record, referred to herein as “AR”).1 From 2003 through
November of 2015, Plaintiff, the president and owner of a medical clinic that specialized
primarily in cardiology and neurology, and other individuals made false representations to
insurance providers (including Medicare) about patients’ symptoms, medical histories and test
results in order to obtain preauthorization for medical tests and procedures. AR at 551–67. On
June 3, 2021, the judge presiding over Plaintiff’s criminal case sentenced him to 20 months of

imprisonment and ordered him and two co-defendants, with whom he was jointly and severally
liable, to pay restitution in the amount of $554,331. AR at 599–603.
On February 28, 2022, the Office of the Inspector General of the Department of Health
and Human Services (“OIG”) notified Plaintiff that, as a result of his felony conviction, he would
be excluded from participating in all federal health care programs for a period of 11 years
pursuant to 42 U.S.C. § 1320a-7(a). AR at 44. The OIG, at its discretion, may impose an
exclusion longer than the statutory minimum period of five years based on any of the nine
aggravating factors identified in the governing regulations. 42 C.F.R. § 1001.102(b). The OIG’s
decision to exclude Plaintiff for a period longer than the minimum mandatory exclusion period
was based on two aggravating circumstances: (1) the acts resulting in his conviction caused or

were intended to cause a financial loss to a government agency or program of $50,000 or more,
and (2) the sentence imposed by the sentencing court included incarceration. AR at 45; see also
42 C.F.R. § 1001.102(b).
Plaintiff appealed the OIG’s exclusion decision and requested a hearing in front of an
Administrative Law Judge (“ALJ”) on the issue of whether the length of the exclusion was

1 All citations to the parties’ memoranda of law refer to the pages assigned by the
Electronic Case File system (“ECF”). See ECF No. 10; ECF No. 13; ECF No. 15 (Secretary’s
Opposition to Plaintiff’s Motion); ECF No. 16 (Plaintiff’s Opposition to Secretary’s Motion).
Citations to AR cite to the pages assigned by the Administrative Record.
unreasonable. AR at 36–43. On September 30, 2022, following receipt of written submissions
from Plaintiff and the OIG, ALJ Jacinta L. Alves affirmed the OIG’s imposition of the exclusion
but reduced its length to eight years. AR at 1–12. ALJ Alves found that the OIG assigned a
greater weight than warranted to the financial loss aggravating factor because the OIG relied on
the “millions of dollars” in alleged fraudulent gains charged in the original indictment against
Plaintiff and five other defendants rather than Plaintiff’s court-ordered restitution of $554,331.

AR at 11. ALJ Alves found that, based on the restitution amount ordered by the sentencing court
and the 20-month period of incarceration imposed on Plaintiff, an eight-year exclusion period
was reasonable. Id.
Plaintiff and the Secretary each cross-appealed the ALJ’s decision to the Health and
Human Services Departmental Appeals Board (“DAB”). AR at 13. The Secretary argued that
the ALJ had erred in decreasing the exclusion period by three years, while Plaintiff contended
that the two aggravating factors present did not warrant any increase beyond the mandatory
minimum five-year period. AR at 19–20. The DAB consolidated the two appeals and, on
February 6, 2023, issued a final agency decision reversing the ALJ’s decision to shorten the
exclusion period, finding that it was not supported by substantial evidence. AR at 13–35. The

DAB concluded that substantial evidence did not support the ALJ’s finding that the OIG had
assigned the financial loss aggravating factor too much weight in reliance on an amount in
excess of the restitution ordered by the court. AR at 22–27, 35. The DAB considered, but
rejected, Plaintiff’s argument that the 11-year exclusion period was unreasonable and reinstated
that original period. AR at 19, 35.
Plaintiff filed this action seeking judicial review of the Secretary’s final agency decision
on April 7, 2023. ECF No. 1 (Complaint). The Secretary filed his Answer and the certified
administrative record on July 24, 2023. ECF No. 6. The Secretary filed his motion seeking
judgment on the pleadings on December 14, 2023, see ECF No. 10, and Plaintiff moved for
judgment on the pleadings on December 28, 2023, see ECF No. 13. The parties filed their
respective oppositions on January 29, 2024. ECF No. 15; ECF No. 16.
LEGAL STANDARD
Judicial review of the Secretary’s final decision to exclude a health care provider from
federal health care programs is authorized by 42 U.S.C. § 1320a-7(f), which incorporates by

reference the limited waiver of sovereign immunity in 42 U.S.C. § 405(g). 42 U.S.C. § 1320a-
7(f)(1). The decision to exclude a medical practitioner from participating in federal health care
programs is reviewed under the same standard as a decision involving Social Security benefits.
See, e.g., Marshall v. Sec’y of Dep’t of Health & Hum. Servs., No. 17-cv-1382, 2019 WL
2895668, at *3 (D. Conn. Mar. 11, 2019); Lasher v. Dep’t of Health & Hum. Servs., 369 F. Supp.
3d 243, 250 (D.D.C. 2019), aff’d, 2020 WL 9256389 (D.C. Cir. 2020).2 Accordingly, in
evaluating a determination by the Secretary, “the relevant inquiry is whether the [DAB] applied
the correct legal standards and whether the [DAB]’s determination is supported by substantial
evidence.” Rucker v. Kijakazi, 48 F.4th 86, 90–91 (2d Cir. 2022).
“The substantial evidence standard is a very deferential standard of review—even more

so than the clearly erroneous standard.” Schillo v. Kijakazi, 31 F.4th 64, 74 (2d Cir. 2022). But
the standard is “not merely hortatory: It requires relevant evidence which would lead a
reasonable mind to concur in the [DAB]’s factual determinations.” Colgan v. Kijakazi, 22 F.4th
353, 359 (2d Cir. 2022). The applicable regulations expressly state that the Secretary may
“only” consider two issues: whether a “basis for the imposition of the sanction exists” and
whether the “length of exclusion is unreasonable.” 42 C.F.R. § 1001.2007(a)(1). “[I]f the Court

2 Unless noted, case law quotations in this Order accept all alterations and omit internal
quotation marks, citations, and footnotes.
finds that there was substantial evidence in support of the Secretary’s determination and that the
proper legal standards were applied, then the Secretary’s decision must be upheld.” Kahn v.
Inspector Gen. of the U.S. Dep’t of Health & Hum. Servs, 848 F. Supp. 432, 436 (S.D.N.Y.
1994).
DISCUSSION
Title 42 of the United States Code authorizes the Secretary to exclude certain individuals

and entities from participation in federal health care programs, including Medicare and
Medicaid. 42 U.S.C. § 1320a-7. The purpose of exclusion is to protect all federal health care
programs from “fraud and abuse, and to protect the beneficiaries of those programs from
incompetent practitioners and from inappropriate or inadequate care.” Manocchio v. Kusserow,
961 F.2d 1539, 1541 (11th Cir. 1992). The Secretary is required to exclude any individual who
has been convicted of a felony offense relating to health care fraud from participation in any
federal health care program for at least five years. See Fuentes v. Becerra, No. 20-cv-26, 2021
WL 4341115, at *1 (W.D. Va. Sept. 23, 2021); see also 42 U.S.C. § 1320a-7(a)(3), (c)(3)(B).
This mandatory minimum period of exclusion may be extended if the Secretary determines that
one or more of the aggravating factors listed in 42 C.F.R. § 1001.102(b) are present. Lasher, 369

F. Supp. 3d at 245; 42 U.S.C. § 1320a-7(c)(3)(B); 42 U.S.C. § 1302(a). As relevant here, the
aggravating factors include: (1) “the sentence imposed by the court included incarceration,” and
(2) “the acts resulting in the conviction, or similar acts, caused, or were intended to cause, a
financial loss to a government agency or program or to one or more other entities of $50,000 or
more.” 42 C.F.R. § 1001.102(b).
Plaintiff contends that the Secretary’s decision to impose an 11-year exclusion is
unreasonable because it was not supported by substantial evidence and because the Secretary
failed to consider relevant evidence surrounding the two applicable aggravating factors. ECF
No. 13 at 11. Plaintiff does not contest that: (1) the acts that led to his criminal conviction
caused loss to government programs of $50,000 or more, thereby triggering the aggravating
factor at 42 C.F.R. § 1001.102(b)(1), and (2) he was sentenced to a term of incarceration, thereby
triggering the aggravating factor at 42 C.F.R. § 1001.102(b)(5). Id. However, Plaintiff argues
that the Secretary “erroneously applied and weighed” these two aggravating factors. Id.
I. The Secretary’s Decision is Supported by Substantial Evidence

Plaintiff argues that the Secretary incorrectly relied on the full court-ordered restitution
amount in applying the financial loss aggravating factor rather than the restitution he actually
paid in the underlying criminal case. Id. at 12. Plaintiff relies on a 2021 settlement agreement
he reached with co-defendant Absar Harris, with whom he was held jointly and severally liable,
to support his argument that he was actually only responsible for $198,657 of the $554,331 total
restitution amount. Id. In that agreement, Plaintiff agreed to divide the total amount of
restitution with Harris such that Harris would pay $166,299.45 and Plaintiff would pay
$388,032.06—$198,657.06 on behalf of himself and $189,375.00 on behalf of his nephew,
Fawad Hameedi (another co-defendant who the sentencing court also found to be jointly and
severally liable). ECF No. 1 at 41. Plaintiff argues that the Secretary should have considered the

limited restitution that Plaintiff actually paid on his own behalf, $198,657, as laid out in the
settlement agreement, rather than the court-ordered $554,331 total restitution. ECF No. 13 at 12.
An 11-year exclusion period, Plaintiff argues, is unreasonable in light of the restitution that he
actually paid. Id. at 13. This argument is unpersuasive. The plain language of the regulation at
issue here provides that “[t]he entire amount of financial loss to such government agencies or
programs or to other entities . . . will be considered regardless of whether full or partial
restitution has been made.” 42 C.F.R. § 1001.102(b)(1). See also Ali v. U.S. Dep’t of Health &
Hum. Servs., No. 21-cv-12365, 2022 WL 3130227, at *4 (E.D. Mich. Aug. 4, 2022) (finding that
OIG properly relied upon the total amount of restitution ordered in determining the length of the
doctor’s exclusion even though an amended judgment reduced the plaintiff’s forfeiture amount
by more than 50%). The $554,331 in restitution that Plaintiff was ordered to pay at his
sentencing is substantial evidence of the amount of the financial loss to Medicare and Medicaid.
See Ali, 2022 WL 3130227, at *4 (“[A]s part of his guilty plea Plaintiff conceded that his
conduct resulted in more than $12 million in financial loss to Medicare. Therefore, the Inspector

General properly relied on that amount in weighing the financial loss aggravating factor.”).
Plaintiff agreed to pay $554,331 in restitution as part of his guilty plea, which the sentencing
court subsequently so-ordered, because it was the amount of “actual loss to the victims” for
“payments for services that were not performed.” AR at 360. Indeed, at Plaintiff’s sentencing
hearing on May 20, 2021, his counsel stated, “that the $554,000 [] is the amount of loss, the
actual loss that the parties all agree to in the case.” AR at 336–37. The fact that Plaintiff made a
separate agreement with the co-defendants with whom he was held jointly and severally liable is
of no relevance. Accordingly, the Secretary did not err by considering the full amount of loss
Plaintiff caused to federal health care programs in determining an appropriate exclusion based on
the financial loss aggravating factor. Anderson v. Thompson, 311 F. Supp. 2d 1121, 1128 (D.

Kan. 2004) (finding that the Secretary correctly relied on the district court’s determination of
loss in the criminal proceeding as substantial evidence to decide the relevant exclusion period
even though the sentencing judge did not order restitution).
Plaintiff also argues that the Secretary erroneously applied the incarceration aggravating
factor by not considering that Plaintiff served only four months of the 20-month sentence
imposed by the sentencing court. ECF No. 13 at 13. The Court disagrees for several reasons.
First, the regulation governing this aggravating factor merely requires that incarceration be
imposed for the factor to apply—the applicability of the factor does not turn on the length of the
sentence nor on the amount of time actually served. 42 C.F.R. § 1001.102(b)(5); see also
Pennington v. Thompson, 249 F. Supp. 2d 931, 935 (W.D. Tenn. 2003) (“An aggravating factor
is present when a sentence includes incarceration, regardless of the length of the incarceration.”);
Patel v. Shalala, 17 F. Supp. 2d 662, 666 (W.D. Ky. 1998) (“[The plaintiff’s] sentence included
incarceration and that is all that the regulations require as an aggravating factor.”). Furthermore,
it was within the Secretary’s discretion to look to the 20-month sentence that Plaintiff received

rather than the four months of time he actually served. See Fuentes, 2021 WL 4341115, at *10
(finding that “for purposes of judicial review” of the Secretary’s exclusion decision, it did not
matter how the Secretary weighed a single aggravating factor and that “[a]ll that matters is
whether there is substantial evidence to support the conclusion that [the] exclusion is not
unreasonable”). Plaintiff contends that “[t]he fact that [he] served only four months of his 20-
month-sentence is relevant to his trustworthiness as a person, as his character and behavior
would have been factored into the decision to allow him an early release.” ECF No. 13 at 13.3
However, “[t]hat the factors are designed to reflect trustworthiness does not necessitate
analyzing the trustworthiness of a person in applying every aggravating and mitigating factor.”
Aswad v. Hargan, No. 16-cv-1367, 2018 WL 704370, at *4 (D.N.M. Feb. 2, 2018).

Finally, it was reasonable for the Secretary to look to the length of the sentence imposed
by the sentencing court as substantial evidence of the danger Plaintiff posed to federal health

3 There is no evidence in the Administrative Record supporting Plaintiff’s assertion that he
ultimately served only four months of actual incarceration. See AR at 21, 122–26, 149–150, 182,
609–43. The Court must base its decision on “substantial evidence in the record as a whole.”
Greek v. Colvin, 802 F.3d 370, 375 (2d Cir. 2015); see also 42 U.S.C. § 405(g). Therefore, the
Court should not consider “Exhibit 4,” Plaintiff’s grant of furlough, appended to Plaintiff’s
Complaint because it is not contained in the administrative record. ECF No. 1 at 44–45.
However, because the Plaintiff’s briefing to the ALJ mentions his grant of furlough, AR at 97,
the Court will take notice of the fact that Plaintiff served only four months of his 20-month total
sentence of imprisonment for the purpose of addressing his arguments herein.
care programs. See Anderson, 311 F. Supp. 2d at 1130 (finding that sentence of a term of
imprisonment of 51 months was substantial evidence of the incarceration aggravating factor).
Plaintiff’s 20-month sentence was well below his sentencing guidelines range of 46 to 57 months
and was imposed by the sentencing court in consideration of the severity of his offense as well as
certain mitigating factors, including his accomplishments in the medical field and his services to
underserved communities. AR at 357–59. Plaintiff does not provide, nor can the Court find, any

authority to support the proposition that the time Plaintiff actually served should be considered
instead of the sentence imposed. See generally ECF No. 1; ECF No. 13; ECF No. 16.
Accordingly, the Secretary did not err by considering the substantial evidence of the sentence
imposed in determining whether it was appropriate to increase the length of Plaintiff’s exclusion
based on the incarceration aggravating factor. Lasher, 369 F. Supp. 3d at 251 (because
plaintiff’s criminal conduct spanned more than one year and the sentencing judge imposed a
three-year sentence of incarceration, the 10-year exclusion period imposed by the Secretary was
reasonable).
Here, the presence of multiple aggravating factors combined with the absence of any
mitigating factors supports the Secretary’s decision to impose a significant period of exclusion.

“If any one aggravating factor justifies an exclusion of longer than five years, then the presence
of [multiple] aggravating factors surely justifies a longer exclusion.” Anderson, 311 F. Supp. 2d
at 1130; see also Fuentes, 2021 WL 4341115, at *10 (finding that a 15-year exclusion based on
three aggravating factors was reasonable). The Secretary’s reliance on the two aggravating
factors of financial loss and a sentence including incarceration were sufficient to justify an 11-
year exclusion in this case.
Accordingly, because the Secretary correctly applied the financial loss and incarceration
aggravating factors laid out in 42 C.F.R. § 1001.102(b) and relied on the substantial evidence
concerning these factors, the Court affirms the Secretary’s decision.
II. The Secretary’s Decision Was Not Arbitrary and Capricious
While the parties agree that 42 U.S.C. § 1320a-7(f) provides for judicial review of the
Secretary’s final determination, Plaintiff asserts that the Secretary’s decision is also reviewable

under the arbitrary and capricious standard of the Administrative Procedure Act (“APA”)
5 U.S.C. § 551 et seq. The Secretary argues that 42 U.S.C § 1320(f) precludes review under the
APA. The Court does not need to reach this issue. However, even if the Secretary’s decision is
reviewable under the APA, the Court finds that the Secretary’s decision was neither arbitrary nor
capricious.
The APA permits the setting aside of agency action that is “arbitrary” or “capricious.”
5 U.S.C. § 706(2)(A). “[H]owever, [] a court is not to substitute its judgment for that of the
agency and should uphold a decision of less than ideal clarity if the agency’s path may
reasonably be discerned.” F.C.C. v. Fox Television Stations, Inc., 556 U.S. 502, 513–14 (2009).
Under this standard, the Court must find the Secretary's decision to be “arbitrary and capricious”

if the Secretary “offered an explanation for its decision that runs counter to the evidence before
the [Secretary], or is so implausible that it could not be ascribed to a difference in view or the
product of [the Secretary]’s expertise.” Visels Drug Store, Inc. v. Drug Enf’t Agency, 593 F.
App’x 12, 14 (2d Cir. 2014). When applying the arbitrary and capricious standard, the Second
Circuit has directed that district courts should ask whether the Secretary has “articulated a
satisfactory explanation for its action.” New York v. United States Dep’t of Homeland Sec., 969
F.3d 42, 64 (2d Cir. 2020). The APA also requires the Secretary to consider prior exclusion
decisions made in other cases. See Fox Television Stations., 556 U.S. at 515 (“An agency may
not, for example, depart from a prior policy sub silentio or simply disregard rules that are still on
the books.”).
Plaintiff contends that “even if this Court declines to credit Plaintiff’s arguments that the
financial loss attributable to his conduct was, at most, $198,657.06, and [that] his term of
incarceration was only four months, the Secretary’s decision to impose an 11-year period of
exclusion is arbitrary and capricious.” ECF No. 13 at 14. Plaintiff argues that the Secretary’s

decision was arbitrary and capricious because it departed from precedent in imposing a lengthy
period of exclusion beyond the mandatory minimum of five years. Id. at 14–16. The Secretary
argues that he provided a satisfactory explanation for the exclusion and did not treat Plaintiff
more harshly than other similarly situated individuals. ECF No. 15 at 15.
The Secretary’s decision to exclude Plaintiff from Medicare and Medicaid was not
arbitrary and capricious because the decision was accompanied by an explanation based on
substantial evidence in the record and because it is consistent with the Secretary’s prior
decisions. See Islander E. Pipeline Co., LLC v. McCarthy, 525 F.3d 141, 151 (2d Cir. 2008)
(“[T]he agency’s decision must reveal a rational connection between the facts found and the
choice made.”). As already discussed, the Secretary based its decision to exclude Plaintiff for an

11-year period on the financial loss and incarceration aggravating factors. AR at 21. In support
of his decision, the Secretary cited substantial evidence that the financial loss resulting from
Plaintiff’s criminal conduct was well in excess of $50,000 and that his sentence included
incarceration. AR at 26, 29. Accordingly, the Court concludes that the Secretary’s application
of the aggravating factors in the relevant regulations, based on substantial evidence of Plaintiff’s
restitution order and his sentence of incarceration, constitutes a satisfactory explanation. See
Fuentes, 2021 WL 4341115, at *11–12 (finding that plaintiff had “not identified any clear error
of judgement that would render the [Secretary’s] decision arbitrary and capricious”).
The Court also finds that the Secretary did not depart from agency precedent in imposing
an 11-year exclusion period. See Cal. Cmtys. Against Toxics v. Env’t Prot. Agency, 928 F.3d
1041, 1057 (D.C. Cir. 2019) (“Agency action is also arbitrary and capricious if it offered
insufficient reasons for treating similar situations differently.”). As discussed in the Secretary’s
final decision, the Secretary concluded that Plaintiff should be excluded for 11 years after
conducting a close review of its prior exclusion decisions. AR at 26. For example, in a 2021

case that the Secretary cited in his final decision, the same two aggravating factors were present,
and the DAB determined that a 10-year exclusion was appropriate based on the doctor’s six-
month sentence and the $500,000 in financial loss that he caused. Id. And, in a 2022 case, the
Secretary excluded a doctor for 13 years based on a sentence of 12 months of incarceration and
financial loss to the government of $813,000. Id. These examples, and the Secretary’s citations
thereto in his final decision, demonstrate that the exclusion period imposed by the Secretary was
grounded in prior decisions and was not unreasonable.
Additionally, the Court does not find Plaintiff’s citations to specific instances in which
the Secretary imposed shorter exclusionary periods under different circumstances to be
persuasive. For example, Plaintiff points to a case in which the Secretary imposed a 10-year

exclusion period after a doctor was sentenced to 47 months of incarceration. See ECF No. 13 at
15 (referencing Pennington, 249 F. Supp. 2d at 934). However, in that case, there was no
financial loss aggravating factor and the plaintiff’s criminal conviction was related to drug
possession rather than fraud. See Pennington, 249 F. Supp. 2d at 934. Plaintiff also cites to a
case in which the Secretary imposed a 10-year exclusion based on three aggravating factors. See
ECF No. 13 at 15 (referencing Laura Leyva, DAB No. 2704 (2016) (H.H.S. May 24, 2016)).
However, in that case, the harm caused to the government agency, as reflected in the plaintiff’s
restitution, was $216,139—less than half the restitution amount imposed on Plaintiff in this
action—and the plaintiff was sentenced to home detention rather than prison. See Laura Leyva,
DAB No. 2704. Other past exclusionary decisions cited by Plaintiff are similarly distinguishable
and unpersuasive. The Secretary’s decision is consistent with prior exclusion decisions and the
Secretary provided a reasoned explanation for the length of the exclusion. Therefore, because
the “path” the Secretary took in reaching his exclusion decision “may reasonably be discerned,”
the Court finds that the Secretary’s decision was not arbitrary and capricious under the APA.

Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43
(1983).
III. The Secretary’s Decision Did Not Violate Plaintiff’s Right to Due Process
Plaintiff further argues that the Secretary’s imposition of an 11-year exclusion period
without consideration of the circumstances surrounding the aggravating factors violated
Plaintiff’s procedural due process rights.4 ECF No. 13 at 17. The Secretary argues that the
Court lacks subject matter jurisdiction over Plaintiff’s due process claim because “Section 405(h)
excludes review of the Secretary’s exclusion decision under any statute other than 42 U.S.C. §
1320a-7(f).” ECF No. 10 at 23. However, as with Plaintiff’s APA claim, the Court need not
decide here whether Plaintiff’s due process claim is foreclosed by the statute. Rather, because

Plaintiff cannot show that the process he was afforded was insufficient, his due process claim
must fail as a matter of law. See Rivera-Powell v. New York City Bd. of Elections, 470 F.3d 458,
467–468 (2d Cir. 2006).

4 The Court understands Plaintiff only to be alleging a violation of his procedural due
process rights. ECF No. 13 at 17. However, to the extent that Plaintiff also intends to assert a
substantive due process claim, because the Court finds that the Secretary’s decision was not
arbitrary and capricious under the APA, the Court also finds that Plaintiff’s substantive due
process rights were not violated under the “outrageously arbitrary” substantive due process
standard. Natale v. Town of Ridgefield, 170 F.3d 258, 263 (2d Cir. 1999) (“Substantive due
process standards are violated only by conduct that is so outrageously arbitrary as to constitute a
gross abuse of governmental authority.”).
“To plead a violation of procedural due process, a plaintiff must plausibly allege that he
was deprived of property without constitutionally adequate pre- or post-deprivation process. In
order to do this, a plaintiff must first identify a property right, second show that the government
has deprived him of that right, and third show that the deprivation was effected without due
process.” J.S. v. T’Kach, 714 F.3d 99, 105 (2d Cir. 2013). The fundamental requirement of
procedural due process “is the opportunity to be heard at a meaningful time and in a meaningful

manner.” Mathews v. Eldridge, 424 U.S. 319, 333 (1976). Plaintiff claims that he has a
protectible property interest in the authorization to treat beneficiaries of federal healthcare
programs and that he was deprived of that interest without due process. ECF No. 13 at 18.
Plaintiff also contends that the Secretary violated his due process rights because he did not apply
the two aggravating factors to Plaintiff “in a manner that considered all the circumstances
surrounding those two factors.” Id. Specifically, Plaintiff recapitulates his arguments that the
Secretary should have considered Plaintiff’s actual period of incarceration rather than his
imposed sentence and the portion of restitution that Plaintiff paid rather than the restitution
ordered by the sentencing court. Id. at 18–19. Even if Plaintiff has a protectible interest in
participation in federal healthcare programs, the Court still finds that Plaintiff was afforded

sufficient due process.5

5 The Second Circuit “has not squarely held one way or the other” whether authorization to
treat beneficiaries of federal healthcare programs is a property right for the purposes of deciding
a due process claim. Pawlowski v. Becerra, No. 21-cv-931, 2022 WL 616796, at *10 (W.D.N.Y.
Mar. 2, 2022). However, the Court finds the reasoning in decisions from other circuits, holding
that providers do not have a property interest in continued participation in federal healthcare
programs because they are not the intended beneficiaries of the programs, persuasive. See, e.g.,
Parrino v. Price, 869 F.3d 392, 398 (6th Cir. 2017) (“several of our sister circuits have held that .
. . health care providers are not the intended beneficiaries of the federal health care programs and
they therefore do not have a property interest in continued participation”) (collecting cases from
three other circuit courts of appeals). Furthermore, the Second Circuit reached a similar
conclusion in a somewhat related case involving New York State’s decision not to allow a doctor
to re-enroll in its Medicaid program. See Senape v. Constantino, 936 F.2d 687, 689–91 (2d Cir.
Plaintiff cannot, and does not, point to any procedural safeguards that he was denied. See
generally ECF No. 1; ECF No. 13; ECF No. 16. Plaintiff received all the process that he was
due with respect to the Secretary’s exclusion decision because he received reasonable notice and
an opportunity to be heard throughout the multi-step administrative process. See Lasher, 369 F.
Supp. 3d at 251 (finding the Secretary’s procedures to be sufficient to satisfy due process).
While the Second Circuit has not directly addressed the issue, other circuits and district courts

within the Second Circuit have specifically determined that the Secretary’s exclusion procedures
satisfy constitutional due process requirements. See, e.g., Rodabaugh v Sullivan, 943 F.2d 855,
858 (8th Cir. 1991) (“This circuit has reviewed due process challenges to exclusions of doctors
from the Medicare program and it has determined that the Secretary's procedures for exclusion
are constitutionally sufficient.”); Doyle v. Sec’y of Health & Hum. Servs., 848 F.2d 296, 302 (1st
Cir. 1988) (“HHS provides [plaintiff] with all of the process that is constitutionally due.”);
Varandani v. Bowen, 824 F.2d 307, 310 (4th Cir. 1987) (“[Plaintiff]’s right to procedural due
process was not violated.”); Cassim v. Bowen, 824 F.2d 791, 798 (9th Cir.1987) (“Consistent
with the requirements of due process, [plaintiff] received some form of hearing prior to
deprivation.”); Pawlowski, 2022 WL 616796, at *11–13 (finding that a nurse practitioner’s

exclusion from Medicare did not violate his due process rights). After reviewing the procedures
utilized by the Secretary in Plaintiff’s case, the Court does not see any reason why it should
reach a different conclusion.

1991). In Senape, the Second Circuit held that the doctor did not have a property right to
continued enrollment as a qualified provider in New York State’s Medicaid program because of
the discretion afforded to state officials in determining “the qualifications and status of New
York Medicaid providers.” Id. To decide this motion, the Court assumes arguendo that Plaintiff
does have such a property interest.
Before deciding to exclude Plaintiff, the OIG notified him that it was required by 42
U.S.C. § 1320a-7(a) to exclude him from participation in all federal health care programs and
gave him 30 days to submit any information and supporting documentation for the OIG to
consider in determining the proposed exclusion. AR at 616. Plaintiff submitted information and
asked the OIG to consider, inter alia, certain mitigating factors. AR at 609–43. After reviewing
the information that Plaintiff had submitted, the OIG issued a notice on February 28, 2022,

informing Plaintiff that he was being excluded for a minimum period of 11 years, and stated the
reasons for its determination. AR at 44–5. The notice identified the two aggravating factors that
were being applied and the bases for the OIG’s finding that they should apply. AR at 45. The
notice also provided Plaintiff with information regarding how to appeal the exclusion. AR at 47.
Plaintiff appealed and submitted a brief to an ALJ in accordance with 42 U.S.C. § 1320a-7(f)(1).
AR at 97–115. After Plaintiff and the Secretary appealed the ALJ’s decision, the DAB
considered the record before it and issued a decision accompanied by a thorough and reasoned
explanation. AR at 13–35. Based on the significant procedural opportunities Plaintiff was
afforded, the Court finds that the Secretary’s procedures for exclusion satisfy the requirements of
due process.

CONCLUSION
In considering the record as a whole, the Court finds that the Secretary’s decision applied
the correct legal standard, was supported by substantial evidence, was not arbitrary and
capricious, and afforded Plaintiff the process he was due. Accordingly, the Court DENIES
Plaintiff’s motion for judgment on the pleadings, see ECF No. 13, and GRANTS the Secretary’s
cross-motion for judgment on the pleadings, see ECF No. 10. The Clerk of Court is respectfully
directed to enter judgment and to close this case.
SO ORDERED.
/s/ Hector Gonzalez
HECTOR GONZALEZ
United States District Judge
Dated: Brooklyn, New York
September 17, 2024

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10659433. Public record. Not legal advice.