# Figueroa v. Department of Health and Human Services

> District Court, M.D. Florida · August 13, 2025

URL: https://www.frixlaw.com/law-library/cases/11120224

## Case

- **Court:** District Court, M.D. Florida
- **Decided:** August 13, 2025
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION

BRENDA LEE FIGUEROA,

Plaintiff,

v. Case No. 8:23-cv-2236-SPF

SECRETARY OF THE DEPARTMENT
OF HEALTH AND HUMAN SERVICES,

Defendant.
__________________________________/

ORDER
Plaintiff Brenda Lee Figueroa seeks review of a final decision of Defendant, Secretary
of the Department of Health and Human Services (the “Secretary”) that excluded her from
participation in Medicare, Medicaid, and all other federal health care programs for five years
pursuant to 42 U.S.C. § 1320a-7(a)(3). Both Plaintiff and the Secretary have moved for
summary judgment (Docs. 27, 29). Because the Secretary’s final decision is supported by
substantial evidence, applied the correct legal standards, and was within his statutory
authority, the Secretary’s decision is affirmed.
I. Background

The underlying facts are undisputed. In May 2013, Plaintiff established Mutual
Family Health, LLC (“MFH”) operating as a medical clinic for individuals who received
health care benefits through the U.S. Department of Labor’s (“DOL”) Office of Workers’
Compensation Program (“OWCP”) (Tr. 4, 204). On December 17, 2019, Plaintiff, who is a
registered nurse, was indicted for health care fraud in the Federal Employees’ Compensation
Act (“FECA”) program (Tr. 123). On January 21, 2020, the DOL issued a Notice of
Suspension informing Plaintiff that she was suspended from federal government contracting
and from directly and indirectly receiving benefits of federal assistance programs (Tr. 130–
32). The notice provided that her suspension would remain in place through the conclusion

of any debarment proceeding that may be initiated against her (Id.).
On February 11, 2020, a federal grand jury returned a superseding indictment against
Plaintiff for eleven counts of health care fraud under 18 U.S.C. § 1347 and three counts of
aggravated identity theft under 18 U.S.C. § 1028A (Tr. 176–85). Plaintiff ultimately pleaded
guilty to two felony counts of health care fraud on July 7, 2021 (Tr. 186–208). As part of the
plea agreement, Plaintiff admitted that she submitted and caused to be submitted false and
fraudulent claims to the DOL’s OWCP, which resulted in OWCP paying at least $334,874.00
to Plaintiff’s business (Tr. 203–06). On December 14, 2021, Plaintiff was sentenced to five
years’ probation on each count to run concurrently (Tr. 209–10). The next day, the court
entered judgment against Plaintiff (Tr. 168–76).

On December 21, 2021, the DOL issued a Notice of Proposed Debarment informing
Plaintiff that the DOL intended to debar her from federal government contracting for three
years (Tr. 14, 155–56; Doc. 29-1). On March 28, 2022, Plaintiff was debarred from all federal
programs for a period of three years retroactive to the date of her initial suspension, January
21, 2020 (Tr. 155–56). Consequently, Plaintiff’s debarment period ran from January 21, 2020,
through January 20, 2023 (Id.).
On August 31, 2022, Defendant, through the Office of the Inspector General of the
Department of Health and Human Services (“IG”), notified Plaintiff that she would be
excluded from participation in all federal health care programs based on her felony health
care fraud convictions for the statutory minimum of five years pursuant to 42 U.S.C. § 1320a-
7(a)(3) and 42 C.F.R. § 1001.101(c) (Tr. 165). Plaintiff’s exclusion began 20 days after the
notice on September 20, 2022 (Id.).
On November 3, 2022, Plaintiff initiated an administrative appeal of her exclusion and

requested a hearing (Tr. 11–13). At the administrative level, Plaintiff argued that the IG’s
selection of August 31, 2022 as her exclusion date was arbitrary and capricious (Tr. 71). The
exclusion was affirmed by an administrative law judge (“ALJ”) on May 5, 2023 (Tr. 1–8). In
the decision, the ALJ specifically noted that he had no authority to modify the IG’s selection
of an effective date for her exclusion (Tr. 7–8); see also 42 C.F.R. § 1001.2007(a) (stating that
excluded parties may request a hearing before an ALJ only on the issues of whether the basis
for the imposition of the sanction exists and the length of the exclusion is unreasonable).
Plaintiff then appealed to the Departmental Appeals Board of the Department of Health &
Human Services, who declined review (Tr. 9–10). On October 3, 2023, Figueroa timely filed
a complaint in this Court challenging the Secretary’s final agency decision (Doc. 1).

II. Legal Framework

The Social Security Act authorizes the IG to exclude certain individuals and entities
from participation in federal health care programs, including Medicare and Medicaid. 42
U.S.C. § 1320a-7. The Act mandates the exclusion from participation in any federal health
care programs of individuals convicted of a criminal offense falling under one or more of four
specified categories for a minimum of five years. 42 U.S.C. §§ 1320a-7(a), 1320a-
7(c)(3)(B); 42 C.F.R. § 1001.102(a). In particular, the IG is required to exclude from
participating in Federal health care programs, any individual who has been convicted of a
criminal offense related to “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 part by any
Federal, State, or local government agency.” 42 U.S.C. § 1320a-7(a)(3); 42 C.F.R. §
1001.101(c). For purposes of mandatory exclusion, an individual is convicted when a
judgment of conviction has been entered against the individual by a Federal, State, or local

court, or when a plea of guilty or nolo contendere by the individual or entity has been accepted
by a Federal, State, or local court. 42 U.S.C. § 1320a-7(i)(1), (3); 42 C.F.R. § 1001.2. An
exclusion becomes effective “at such time and upon such reasonable notice to the public and
to the individual or entity excluded as may be specified in regulations.” 42 U.S.C. § 1320a-
7(c)(1). The regulations, in turn, provide that an exclusion takes effect twenty days after the
date of the Inspector General’s notice of exclusion. See 42 C.F.R. § 1001.2002(b).
An individual excluded from federal health care programs may file a request for a
hearing before an ALJ. 42 C.F.R. § 1005.2. The only issues the ALJ can determine on appeal
are whether the “basis for the imposition of the sanction exists” and the “length of the
exclusion is unreasonable.” 42 C.F.R. § 1001.2007(a); cf. Markoff v. The Inspector General, DAB

CR538, 1998 WL 479297, at *9 (H.H.S. June 19, 1998) (stating that the ALJ cannot “move
the effective date of the exclusion back to the date when Petitioner surrendered his license”).
Either party may then appeal the ALJ’s decision to the Departmental Appeals Board, and the
Board’s decision then constitutes the final decision of the Secretary. 42 C.F.R. § 1005.21(a),
(j).
Any individual excluded from federal health care programs under 42 U.S.C. § 1320a-
7 is entitled to judicial review of the Secretary’s decision as provided in 42 U.S.C. § 405(g).
42 U.S.C. § 1320a-7(f)(1). Pursuant to 42 U.S.C. § 405(g), judicial review of the Secretary’s
decision is limited to whether there is substantial evidence in the record to support the findings
of the Secretary, and whether the correct legal standards were applied. Gulfcoast Med. Supply,
Inc. v. Sec’y of Health & Human Servs., 468 F.3d 1347, 1350 n.4 (11th Cir. 2006) (citation
omitted). Substantial evidence is “‘more than a mere scintilla. It means such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion.’” Richardson

v. Perales, 402 U.S. 389, 401 (1971) (citation omitted). While the Court reviews the Secretary’s
decision with deference to the factual findings, no such deference is given to the legal
conclusions. Keeton v. Dep’t of Health & Human Servs., 21 F.3d 1064, 1066 (11th Cir. 1994)
(citations omitted).
III. Discussion

The issue on appeal before the Court is narrow. Plaintiff does not dispute that she was
convicted of a qualifying offense and is therefore subject to the mandatory five-year exclusion
provided by 42 U.S.C. §§ 1320a-7(a)(1), (c)(3)(B). As a result, there is necessarily substantial
evidence to support the Secretary’s determination. Instead, Plaintiff essentially contends that
the proper legal standard was not applied. Namely, Plaintiff challenges the effective date of
her exclusion, arguing that it should have begun on January 20, 2020, the date her DOL
debarment began,1 and that the IG’s decision to send Plaintiff’s notice of exclusion in August
2022 was arbitrary and capricious.
First, Plaintiff argues that, after the U.S. Supreme Court’s decision in Loper Bright
Enters. v. Raimondo, 603 U.S. 369, 412–413 (2024), the Court is not required to defer to the
IG’s position that it has unfettered discretion in determining the effective date of Plaintiff’s
exclusion. In Loper Bright, the Supreme Court eliminated Chevron deference and held that

1 Plaintiff alternatively requests that the Court find that her exclusion began on any other date
earlier than September 20, 2022.
courts “may not defer to an agency interpretation of the law simply because a statute is
ambiguous” and instead “must exercise their independent judgment in deciding whether an
agency has acted within its statutory authority.” 603 U.S. at 412–13 (overruling Chevron
U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837 (1984)).

To backtrack, 42 U.S.C. § 1320a-7(c) provides as follows:
(1) An exclusion under this section or under section 1320a-7a of this title shall
be effective at such time and upon such reasonable notice to the public and to
the individual or entity excluded as may be specified in regulations consistent
with paragraph (2).

(2)(A) Except as provided in subparagraph (B), such an exclusion shall be
effective with respect to services furnished to an individual on or after the
effective date of the exclusion.

42 U.S.C. § 1320a-7(c). Considering this delegation of authority, Defendant promulgated 42
C.F.R. § 1001.2002, which states in relevant part:
(a) Except as provided in § 1001.2003, if the OIG determines that exclusion is
warranted, it will send a written notice of this decision to the affected
individual or entity.

(b) The exclusion will be effective 20 days from the date of the notice.

(c) The written notice will state—

(1) The basis for the exclusion;

(2) The length of the exclusion and, where applicable, the factors
considered in setting the length;

(3) The effect of the exclusion;

(4) The earliest date on which the OIG will consider a request for
reinstatement;

(5) The requirements and procedures for reinstatement; and

(6) The appeal rights available to the excluded individual or entity.

42 C.F.R. § 1001.2002.
Plaintiff argues that, because the statute is silent on when the exclusion should begin,
courts may no longer defer to the agency’s position that it has discretion on when to send the
notice of exclusion. Plaintiff’s argument here is not entirely clear. While she raises Loper
Bright, it is not immediately apparent what specific agency action Plaintiff is challenging. In

her motion Plaintiff states that, after Loper Bright, the Court is “not required to defer to the
agency’s interpretation or its position that it has unfettered discretion in setting a start date for
exclusion,” then immediately states that the “exclusion period is set not by statute, but by
regulation by the agency,” that the Court “must not defer to the arbitrary date of September
20, 2022 that Defendant has set,” and, inexplicably, that “courts should not defer to agencies
reading into statutes words that do not exist.” (Doc. 29 at 5–6). In response to Defendant’s
motion, Plaintiff again states that the “exclusion period is set not by statute, but by
regulation,” that a court “must no longer defer to an agency’s interpretation under the Chevron
doctrine,” that the “statute here is not ambiguous regarding effective date of when exclusion

begins, it is completely silent [and thus, there] can be no deference to the date selected by the
Defendant,” and that any cases stating the IG has discretion in setting the exclusion date are
no longer persuasive after Loper Bright (Doc. 30 at 3–4).
Thus, it is unclear if she intends to argue that (1) because 42 U.S.C. § 1320a-7(c) is
silent as to when the notice of exclusion must be sent, the Court need no longer defer to the
Secretary’s “interpretation” that the statute provides the IG with discretion on this matter; (2)
42 C.F.R. § 1001.2002 is arbitrary, capricious, or manifestly contrary to the statute because it
improperly provides the IG with “unfettered discretion” in determining when to send the
notice of exclusion; (3) the Secretary’s claim that 42 C.F.R. § 1001.2002 provides the IG with
discretion on when to send the notice of exclusion is unreasonable such that the Court would
need to analyze the agency’s interpretation of the regulation, potentially engaging in Auer
deference;2 or (4) the Secretary’s decision to send Plaintiff’s notice of exclusion over a year
after the date of her conviction was arbitrary and capricious. 3 Regardless of Plaintiff’s intent,
each of these arguments fail.

First, 42 U.S.C. § 1320a-7(c) is not silent with respect to the specific issue such that
Chevron deference would have applied. See Chevron, 467 U.S. at 843 (“If, however, the court
determines Congress has not directly addressed the precise question at issue, the court does
not simply impose its own interpretation of the statute, as would be necessary in the absence
of an administrative interpretation. Rather, if the statute is silent or ambiguous with respect
to the specific issue, the question for the court is whether the agency’s answer is based on a
permissible construction of the statute.”). The statute clearly states that an exclusion will be
effective “at such time and upon such reasonable notice . . . to the individual . . . excluded as
may be specified in regulations consistent with paragraph (2).” 42 U.S.C. § 1320a-7(c)(1).
This is a clear delegation of authority to the agency to promulgate regulations that specify

when the exclusion will take effect. And while the statute itself might not expressly state a

2 When a court engages in Auer deference, it defers to an agency’s reading of its own genuinely
ambiguous regulation. See Kisor v. Wilkie, 588 U.S. 558, 563, 574 (2019) (clarifying proper
application of Auer doctrine and reaffirming its “important role in construing agency
regulations”) (discussing Auer v. Robbins, 519 U.S. 452 (1997)); Rafferty v. Denny’s, Inc., 13
F.4th 1166, 1179 (11th Cir. 2021). While after Loper Bright courts no longer defer to an
agency’s interpretation of an ambiguous statute, Auer deference remains intact because it
applies to an agency’s interpretation of its own regulation, not a statute. See United States v.
James, 135 F.4th 1329, 1334 n.1 (11th Cir. 2025) (“Although perhaps Loper Bright has the
potential to cast doubt on [Auer deference] in future cases, it dealt with agency interpretations
of ambiguous statutes, not agency interpretations of their own regulations . . . [t]hus, it is not
squarely on point and has no bearing on the legal framework we rely on here.”).

3 Plaintiff appears to be under the impression that Chevron required courts to defer to any and
all actions taken by agencies. As explained in this section, this was not the case.
specific time period in which the notice of exclusion must be sent, the concept of “silence” for
purposes of Chevron deference is distinct from an express delegation of authority to the agency.
Indeed, the Chevron decision itself noted that there would be no deference in these
circumstances:

If Congress has explicitly left a gap for the agency to fill, there is an express
delegation of authority to the agency to elucidate a specific provision of the
statute by regulation. Such legislative regulations are given controlling weight
unless they are arbitrary, capricious, or manifestly contrary to the statute.
Sometimes the legislative delegation to an agency on a particular question is
implicit rather than explicit. In such a case, a court may not substitute its own
construction of a statutory provision for a reasonable interpretation made by
the administrator of an agency.

467 U.S. at 843–44.
The Loper Bright decision did not alter the principle that regulations enacted pursuant
to express delegations of authority are given controlling weight unless arbitrary, capricious,
or contrary to the statute, it only announced that “courts need not and under the APA may
not defer to an agency interpretation of the law simply because a statute is ambiguous.” 603
U.S. at 413. As the decision makes clear, “when a particular statute delegates authority to an
agency consistent with constitutional limits, courts must respect the delegation, while
ensuring the agency acts within it.” Id.; see also Wright v. Everson, 543 F.3d 649, 654 (11th Cir
2008) (“If Congress explicitly leaves a gap for the agency to fill, ‘there is an express delegation
of authority to the agency to elucidate a specific provision of the statute by regulation.’ A
resulting regulation is reviewed only to see if it is arbitrary, capricious, or manifestly contrary
to the statute.”) (quoting Chevron, 467 U.S. at 843–44) (citations omitted).
As a result, Chevron deference is not (and never was) implicated such that the Loper
Bright decision would alter this Court’s analysis. Cf. Dep’t of Labor v. Am. Healthcare Servs.,
LLC, 762 F. Supp. 3d 666, 685 (S.D. Ohio 2025) (“Since the delegation of statutory authority
to DOL is clear and unambiguous, the Loper Bright decision does not impact the outcome
here.”); Baxter v. Becerra, No. 3:23-cv-92, 2024 WL 627262, at *7 n.7 (E.D. Va. Feb. 14, 2024)
(“Because the Court finds no ambiguity in 42 U.S.C. § 1320a-7(a)(1) on any of the presented
questions and instead finds that the ‘traditional tools of statutory construction’ all show that

the Secretary’s reading in this case is correct, the Court ‘give[s] effect to the unambiguously
expressed intent of Congress’ and does not rely on Chevron deference in deciding this matter.”)
(quoting Chevron, 467 U.S. at 842–43, 843 n.9). Therefore, any argument that the Court need
no longer defer to the Secretary’s “interpretation” that the statute provides it with discretion
on when to send the notice of exclusion is without merit.
Through 42 U.S.C. § 1320a-7(c)(1), Congress clearly empowered DHHS to enact
regulations specifying the time and notice requirements for exclusions under 42 U.S.C. §
1320a-7(a)(1). 42 U.S.C. § 1320a-7(c)(1). Pursuant to this authority, the agency enacted 42
C.F.R. § 1001.2002, which requires written notice to the individual and provides that the

exclusion will be effective 20 days from the date of the notice. 42 C.F.R. § 1001.2002. This
was clearly within the bounds of the delegated authority. Indeed, outside of the general
statement that the Court need not defer to the agency’s position that it has discretion on when
to send the notice of exclusion, Plaintiff has provided no argument or authority to suggest
that the regulation is arbitrary, capricious, or manifestly contrary to the statute. As a result,
this Court must “respect the delegation, while ensuring the agency acts within it.” Loper
Bright, 603 U.S. at 413. For the reasons explained below, the Court finds that the IG did.
Considering that 42 C.F.R. § 1001.2002 does not provide a time frame in which the
notice of exclusion must be sent, the Secretary claims that the IG has discretion on when to

send the notice of exclusion. Courts have consistently agreed that this is the case. See, e.g.,
Meeks v. Sec’y of Dep’t of Health & Hum. Servs., No. 1:24-cv-022, 2025 WL 1191584 at *4 (S.D.
Ga. Apr. 24, 2025) (“Plaintiff’s argument that the exclusion period should have begun in
September 2019 is unavailing, as the determination of when an exclusion is imposed is within
the discretion of the IG.”); Deshikachar v. Becerra, No. 23-10465, 2024 WL 4525296, at *2

(E.D. Mich. Aug. 26, 2024) (“The Court finds that the Secretary, and the IG by extension,
have discretion under 42 U.S.C. § 1320a-7 to decide when to send notice. That provided
discretion is a congressional determination, and unless [the plaintiff] can cite some legal
authority that establishes that the statute is unconstitutional [the plaintiff], the Court, and the
agency are bound by it.”); Marshall v. Sec’y, Dep’t of Health & Hum. Servs., No. 3:17-cv-1382,
2019 WL 2895668, at *4 (D. Conn. Mar. 11, 2019) (“The Act and the regulations . . . give the
Inspector General discretion to determine the timing of the imposition of an exclusion.”);
Seide v. Shalala, 31 F. Supp. 2d 466, 469 (E.D. Pa. 1998) (“‘The Inspector General has the
discretion to determine when to impose an exclusion.’”) (quoting Martin v. The Inspector
General, DAB CR529, 1998 WL 248066 (H.H.S. Apr. 16, 1998)).4 And while Plaintiff takes

issue with this conclusion, she does not argue that the regulation is ambiguous or otherwise
meaningfully challenge the Secretary’s interpretation of the regulation.5 Thus, because the
IG has discretion on when to send the notice of exclusion, the Court finds that the agency
acted within its authority in sending Plaintiff’s notice of exclusion on August 31, 2022.

4 There is no indication—presumably for the reasons set forth above—that any of these courts
relied on Chevron deference to reach this conclusion. Thus, the Loper Bright decision has no
impact on the persuasiveness of these cases.

5 As set forth above, even if the regulation were genuinely ambiguous, the Court would be
required to engage in Auer deference and defer to the Secretary’s reasonable reading of the
regulation.
Finally, the Court turns to whether the IG’s decision to send Plaintiff’s notice of
exclusion on August 31, 2022 was arbitrary and capricious.6 Plaintiff argues that the selection
of this date was arbitrary because her guilty plea was the triggering event for her exclusion,
and the guilty plea was filed in federal court on June 25, 2021, nearly fifteen months before

her exclusion became effective. While Plaintiff’s guilty plea was filed in federal court on June
25, 2021 (Tr. 127), the Court did not accept her guilty plea until July 7, 2021 (Tr. 127, 208),
and a criminal judgment was not entered against her until December 15, 2021 (Tr. 129, 168–
69). And, as set forth above, the Act defines “conviction” for purposes of the mandatory
exclusion requirement as “when a judgment of conviction has been entered against the
individual by a Federal, State, or local court,” or “when a plea of guilty or nolo contendere
by the individual or entity has been accepted by a Federal, State, or local court.” 42 U.S.C. §
1320a-7(i)(1), (3); 42 C.F.R. § 1001.2. As a result, the IG sent Plaintiff’s notice of exclusion
approximately fourteen months after the court’s acceptance of Plaintiff’s guilty plea and less
than nine months after Plaintiff’s judgment of conviction.

And if “the inclusion of clause (1) in Section 1320a-7(i) is not to be considered
superfluous, Congress must have intended that the Inspector General could choose to exclude
the individual or entity upon the occurrence of one of the predicates to the entry of a judgment

6 It is unclear whether there is any legal basis for the Court to consider this argument,
considering the standard of review applicable in this case. While Plaintiff references the
APA’s arbitrary and capricious standard throughout her filings, she never argues that the
Court should apply this standard. In fact, Plaintiffs filings do not address the applicable
standard of review at all. Because there is at least some authority suggesting that the APA
could also apply, and because it ultimately is not determinative in this case, the Court will
assume it applies here. See Kogan v. Becerra, No. 21-10856, 2023 WL 8253074, at *3 n.5
(D.N.J. Nov. 29, 2023); Lilia Gorovits, M.D., P.C. v. Becerra, Civ. No. 20-1850, 2021 WL
1962903, at *3 n.6 (E.D. Pa. May 17, 2021) (“The distinction between § 405 (g) and the APA
standard is not clear, however, some courts have also held that between the two standards, ‘it
probably makes no difference.’”) (citation omitted).
of conviction that are set forth in clauses (2) and (3) or in the alternative, could choose to wait
until there is a judgment of conviction.” Marshall, 2019 WL 2895668, at *5; see also Singhvi v.
Inspector General of Dep’t of Health & Hum Servs., No. 2:08-cv-659, Doc. 33 at 13 n.7 (E.D.N.Y.
Sept. 21, 2009) (explaining that the “legislative history of 42 U.S.C. § 1320a-7(i) evidences

that Congress’s sole purpose in enacting that provision was its concern that certain providers
who pleaded guilty to program-related offenses within the meaning of Section 1128(a) of the
Act would not be subject to exclusion in the term ‘conviction’ was limited to the entry of a
judgment of conviction by a court.”) (citing H.R. Rep. No. 99-727, at *75 (1986), as reprinted
in 1986 U.S.C.C.A.N. 3607, 3665).
And because “the length of an exclusion can be more than five years if certain
aggravating factors are present, and if any of these aggravating factors are present, enumerated
mitigating factors may be considered, it would be reasonable for the Inspector General to wait
until he or she has the benefit of all of the information that may come to light during the
sentencing process before deciding on the length of the exclusion.” Marshall, 2019 WL

2895668, at *5; see also 42 C.F.R. § 1001.102. By way of example, one of the aggravating
factors that may be considered is that “[t]he sentence imposed by the court included
incarceration,” 42 C.F.R. § 1001.102(b)(5), and one of the mitigating factors that may be
considered upon presentation of an aggravating factor is that “[t]he record in the criminal
proceedings, including sentencing documents, demonstrates that the court determined 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) (emphasis
added).
As a result, the Court finds it appropriate to characterize the delay in this case as a
period of less than nine months. See Marshall, 2019 WL 2895668, at *6 (where the plaintiff’s
exclusion began over five years after acceptance of guilty plea and nineteen months after
judgment of conviction, it was more appropriate to characterize the delay as nineteen

months). Considering the foregoing, the Court does not find a delay of less than nine months
to be arbitrary and capricious. As the Secretary points out, many courts have upheld similar
and longer delays. See Meeks, 2025 WL 1191584 at *4 (delay of thirty-one months);
Deshikachar, 2024 WL 4525296, at *2 (delay of approximately eleven months); Marshall, 2019
WL 2895668, at *6 (delay of nineteen months); Seide, 31 F. Supp. 2d at 467 (delay of twenty
months); Singhvi v. Inspector General of Dep’t of Health & Hum Servs., No. 2:08-cv-659, Doc. 33
at 17 (delay of eight months was not unreasonable). Indeed, it makes sense that there would
be a notable delay between the judgment of conviction and the issuance of the notice of
exclusion, as this “is not a mere ministerial act. Rather, the Inspector General must make a

determination as to the appropriate length of an exclusion, and to do so the Inspector General
is required to gather and evaluate the relevant information.” Marshall, 2019 WL 2895668, at
*6; see also Deshikachar, 2024 WL 4525296, at *3 (“Agencies have limited resources and may
not be able to accommodate the type of plan that Deshikachar envisions. The Court is not in
a position and does not have the authority to alter these policy determinations without a legal
basis to do so.”).
Nonetheless, Plaintiff argues that her exclusion date is arbitrary because it should have
been made retroactive to January 20, 2020, the date Plaintiff’s DOL suspension and
debarment began. As the Secretary points out, “[t]here is no legal authority that would have

permitted—let alone required—the IG to make the effective date of Figueroa’s exclusion
retroactive to the date of her suspension and debarment by DOL.” (Doc. 27 at 2). The Act
plainly states that an “exclusion shall be effective with respect to services furnished to an
individual on or after the effective date of the exclusion.” 42 U.S.C. § 1320a-7(c)(2)(A) (emphasis
added). And the regulation provides that the effective date of the exclusion is twenty days

after the IG sends the notice of exclusion. 42 C.F.R. § 1001.2002. Thus, exclusions cannot
be made retroactive. 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) (“Plaintiff’s exclusion became effective twenty
days from the date of the notice, or on August 20, 2020. The regulation does not provide for
a different or retroactive start date.”) (citations omitted); Marshall, 2019 WL 2895668, at *4
(“The Act and the regulations require mandatory exclusion for a minimum of five years, do
not allow for exclusions to be imposed retroactively and give the Inspector General discretion
to determine the timing of the imposition of an exclusion.”).
Plaintiff responds by pointing to 42 U.S.C. § 1320a-7(b)(5), which deals with

permissive exclusions, to argue that the IG could have excluded her earlier under this
authority.7 42 U.S.C. § 1320a-7(b)(5) allows for permissive exclusion of an individual who
has been suspended or excluded from participation in any federal program. While Plaintiff is
correct that a legal basis existed for the IG to exclude her in January 2020, this does not further
her argument. Even if the IG excluded her earlier under 42 U.S.C. § 1320a-7(b)(5), this
exclusion would be a separate exclusion based on her DOL suspension, not her underlying
conviction. It would not have relieved the IG from subjecting Plaintiff to the mandatory five-

7 Plaintiff apparently understands the Secretary’s argument to suggest that the IG could not
have suspended her before her criminal conviction. While this is also true (with respect to
mandatory exclusions), this is distinct from the requirement that her mandatory exclusion
take effect after the IG sends the notice of exclusion.
year exclusion required under 42 U.S.C. § 1320a-7(c)(3)(B) after Plaintiff was convicted of
health care fraud.8 As one court explained:
An exclusion determination under § 1320a–7 is a two-step process. First, the
Secretary must determine whether the mandatory provision applies. Under §
1320a–7(a) the Secretary shall exclude individuals who have been convicted of
a program-related crime or who have been convicted of patient abuse. If the
prerequisites of this section are met, the Secretary is directed by Congress to
exclude that individual, and the issue of permissive exclusion becomes moot.
It is only after the Secretary determines that the individual’s conviction was not
for a “program-related crime” that the permissive exclusion statute becomes
relevant.

Travers v. Sullivan, 801 F. Supp. 394, 405 (E.D. Wash. 1992), aff'd sub nom. Travers v. Shalala,
20 F.3d 993 (9th Cir. 1994); see also Baxter, 2024 WL 627262, at *15 (“So, when one says that
mandatory and permissive exclusion are ‘mutually exclusive’ categories, that is simply a
reflection of the statutory text which only allows permissive exclusion if mandatory exclusion
does not apply by the text of those provisions.”) (emphasis in original). Simply put, the IG
could not have made Plaintiff’s exclusion retroactive, and as a result, it was not arbitrary for
the IG not do so.
Plaintiff also raises various arguments related to the DOL’s suspension and debarment
of Plaintiff from federal programs. Plaintiff notes that, when considering both her DOL
debarment and the IG exclusion at issue in this case, she will be effectively excluded from all
healthcare programs for a period of seven-and-a-half years rather than the statutory minimum
of five years. While the exact nature of Plaintiff’s argument is somewhat murky, she appears

8 The Court does not intend to suggest that it would be permissible for the IG to subject
Plaintiff to both a permissive and mandatory exclusion in these circumstances. The Court
merely emphasizes that Plaintiff’s conviction rendered her exclusion mandatory.
to suggest that her DOL debarment should be treated as an exclusion by the IG because the
impact of her debarment and exclusion is the same.9
The fact that the DOL debarment and the IG exclusion both had the effect of barring
Plaintiff’s participation in federal health care programs does not support the conclusion that

the IG has improperly extended Plaintiff’s exclusion period from five years to seven years.
As the Secretary notes, suspension and debarment by the DOL and exclusion by the IG are
distinct remedial tools that serve different purposes and are administered by different federal
agencies under separate statutory authorities.
Plaintiff responds that she “cannot be punished twice civilly for the same act by the
same sovereign, federal government,” (Doc. 34 at 2). This argument fails for multiple
reasons.10 First, Plaintiff provides no authority to support this assertion. Moreover,
exclusions and debarments are remedial in nature, not punitive. See Manocchio v. Kusserow,
961 F.2d 1539, 1542 (11th Cir. 1992) (“[S]ince the legislative intent of the exclusionary period
is to protect the public, the sanction is remedial, not punitive.”); 2 C.F.R. § 180.125 (stating

that the purpose of the debarment and suspension system is to “protect the public interest”
and that agencies may not exclude individuals “for the purposes of punishment”). In
addition, the fact that 42 U.S.C. § 1320a-7(b)(5) expressly permits the IG to exclude
individuals who have been “suspended or excluded from participation, or otherwise

9 Plaintiff also appears to suggest that because the DOL was able to make Plaintiff’s debarment
retroactive, the IG should have made her exclusion retroactive. As explained above,
however, the IG does not have authority to make an exclusion retroactive.

10 The Court also notes that this argument, made for the first time in Plaintiff’s Reply (Doc.
34), is inconsistent with the relief requested in this case. Plaintiff does not ask the Court to
overturn her mandatory exclusion as improperly duplicative of her debarment, Plaintiff asks
the Court to modify the effective date of her exclusion (Doc. 29 at 8; Doc. 34 at 2).
sanctioned” under other federal programs undercuts this argument.11 42 U.S.C. § 1320a-
7(b)(5); see also Marshall, 2019 WL 2895668, at *8 (rejecting argument that the plaintiff’s
exclusion period was improperly extended from five years to seven years where CMS had
revoked the plaintiff’s Medicare billing privileges two years prior to the IG’s notice of

exclusion); cf. Deshikachar, 2024 WL 4525296, at *1 (finding no error where the plaintiff was
precluded from billing Medicare and Medicaid as a condition of bond and later excluded from
participating in any federal health care programs by the IG after sentencing). The ALJ
persuasively articulated the rationale for this conclusion:
I recognize Petitioner makes a somewhat more complex argument than that
contemplated by the Act or its implementing regulations — that action taken
by one federal agency under a certain authority should estop another federal
agency from taking a similar action under a different authority. But Petitioner
has provided no legal basis upon which I could rely to conclude Congress did
not intend to permit such an outcome. It is in fact common for healthcare
providers to be subject to actions taken by different governmental entities for
the same conduct. The multitude of ways a healthcare practitioner can be
subject to discipline or limitation of the ability to treat patients reflects the
significant amount of trust placed in them. Petitioner’s conduct here has
unsurprisingly subjected to her to what can only be described as proportional
consequences. To the extent Petitioner finds her exclusion period unfair, I
observe the IG declined, for whatever reason, to apply at least two readily
apparent aggravating factors in this case to extend Petitioner’s period of
exclusion beyond the statutory minimum period of five years.

(Tr. 107). Thus, Plaintiff’s DOL debarment has no impact on her IG exclusion.
IV. Conclusion
Considering the foregoing, the Court finds that the Secretary’s decision applied the
correct legal standards and is supported by substantial evidence. In addition, the Secretary’s
decision to send Plaintiff’s notice of exclusion on August 31, 2022 was not arbitrary or

11 Again, the suggestion that Plaintiff cannot be subject to both debarment by the DOL and
exclusion by the IG is inconsistent with her earlier argument that the IG should have excluded
her under this provision.
capricious. Accordingly, it is hereby ORDERED that:
(1) Plaintiff's Motion for Summary Judgment (Doc. 29) is DENIED.
(2) Defendant United States’ Motion for Summary Judgment (Doc. 27) is
GRANTED.
(3) The Secretary’s decision is AFFIRMED. The Clerk is directed to enter judgment
in favor of Defendant and close this case.
ORDERED in Tampa, Florida on August 13, 2025.

Aree
SEAN P. FLYNN
UNITED STATES MAGISTRATE JUDGE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11120224. Public record. Not legal advice.