42 C.F.R. § 1001.102

Length of exclusion

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(a) No exclusion imposed in accordance with § 1001.101 will be for less than 5 years.

(b) Any of the following factors may be considered to be aggravating and a basis for lengthening the period of exclusion—

(1) 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. (The entire amount of financial loss to such government agencies or programs or to other entities, including any amounts resulting from similar acts not adjudicated, will be considered regardless of whether full or partial restitution has been made);

(2) The acts that resulted in the conviction, or similar acts, were committed over a period of one year or more;

(3) The acts that resulted in the conviction, or similar acts, had a significant adverse physical, mental or financial impact on one or more program beneficiaries or other individuals;

(4) In convictions involving patient abuse or neglect, the action that resulted in the conviction was premeditated, was part of a continuing pattern of behavior, or consisted of non-consensual sexual acts;

(5) The sentence imposed by the court included incarceration;

(6) The convicted individual or entity has a prior criminal, civil or administrative sanction record;

(7) The individual or entity has previously been convicted of a criminal offense involving the same or similar circumstances;

(8) The individual or entity has been convicted of other offenses besides those that formed the basis for the exclusion; or

(9) The individual or entity has been the subject of any other adverse action by any Federal, State or 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.

(c) Only if any of the aggravating factors set forth in paragraph (b) of this section justifies an exclusion longer than 5 years, may mitigating factors be considered as a basis for reducing the period of exclusion to no less than 5 years. Only the following factors may be considered mitigating—

(1) In the case of an exclusion under § 1001.101(a), whether the individual or entity was convicted of three or fewer misdemeanor offenses and the entire amount of financial loss (both actual loss and intended loss) to Medicare or any other Federal, State, or local governmental health care program due to the acts that resulted in the conviction, and similar acts, is less than $5,000;

(2) The 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; or

(3) The individual's or entity's cooperation with Federal or State officials resulted in—

(i) Others being convicted or excluded from Medicare, Medicaid and all other Federal health care programs,

(ii) Additional cases being investigated or reports being issued by the appropriate law enforcement agency identifying program vulnerabilities or weaknesses, or

(iii) The imposition against anyone of a civil money penalty or assessment under part 1003 of this chapter.

(d) In the case of an exclusion under this subpart, based on a conviction occurring on or after August 5, 1997, an exclusion will be—

(1) For not less than 10 years if the individual has been convicted on one previous occasion of one or more offenses for which an exclusion may be effected under section 1128(a) of the Act. (The aggravating and mitigating factors in paragraphs (b) and (c) of this section can be used to impose a period of time in excess of the 10-year mandatory exclusion); or

(2) Permanent if the individual has been convicted on two or more previous occasions of one or more offenses for which an exclusion may be effected under section 1128(a) of the Act.

[57 FR 3330, Jan. 29, 1992, as amended at 63 FR 46686, Sept. 2, 1998; 63 FR 57918, Oct. 29, 1998; 64 FR 39426, July 22, 1999; 67 FR 11932, Mar. 18, 2002; 82 FR 4112, Jan. 12, 2017]

Notes of Decisions

Cited in 14 cases (7 in the last 5 years), 1998–2025 · leading case: Anderson v. Thompson, 311 F. Supp. 2d 1121 (D. Kan. 2004).

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Anderson v. Thompson, 311 F. Supp. 2d 1121 (D. Kan. 2004). · cites it 7× “As the ALJ concluded, 42 C.F.R. § 1001.102 does not require Defendant to make an independent assessment of any potential benefit to the government when determining the program-related loss to Medicare.”

Pennington v. Thompson, 249 F. Supp. 2d 931 (W.D. Tenn. 2003). · cites it 8× “§ 1320a-7(c)(3)(B); 42 C.F.R. § 1001.102 (a). 3 An exclusion of longer than five years may be imposed if certain aggravating factors are present.”

Patel v. Shalala, 17 F. Supp. 2d 662 (W.D. Ky. 1998). · cites it 7× “42 C.F.R. § 1001.102 (b). If the Secretary increases the duration of the exclusion based upon the existence of one or more aggravating factors, the party challenging the exclusion may prove the existence of one or more specified mitigating factors which would warrant a reduction…”

David E. Sternberg v. Sec'y, Dep't of Health & Human Servs., 299 F.3d 1201 (10th Cir. 2002). · cites it 2× “§ 1320a — 7(c)(3)(B); 42 C.F.R. § 1001.102 (a). If HHS finds aggravating factors, it may impose an exclusion longer than the minimum period.”

Lasher v. Dep't of Health & Human Servs., 369 F. Supp. 3d 243 (D.C. Cir. 2019). · cites it 8× “§ 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.”

Patel v. Thompson, 319 F.3d 1317 (11th Cir. 2003). · cites it 3× “The third issue is whether the HHS improperly applied the 1998 amendment to the regulations, 42 C.F.R. § 1001.102 , which became effective on October 2, 1998, since his conduct occurred prior thereto, in 1996.”

Kogan, L.A.C. v. Becerra (D.N.J. 2023). · cites it 9× “) As to the substance of Kogan’s challenge, the ALJ found that HHS was correct, pursuant to 42 C.F.R. § 1001.102 (b), that three aggravating factors supported the 15-year exclusion order: Kogan’s actions caused a financial loss to a governmental agency in excess of $50,000.”

Hameedi, M.D. v. Becerra (E.D.N.Y 2024). · cites it 9× “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…”

Ali v. U.S. Dep't of Health & Human Servs. (E.D. Mich. 2022). · cites it 7× “For the first time, Plaintiff argued that the Inspector General and ALJ erroneously stated the amount of his restitution for purposes of weighing the aggravating factor at 42 C.F.R. § 1001.102 (b)(1), arguing that they should have relied on his amended forfeiture amount.”

Lasher v. Dep't of Health & Human Servs. (D.D.C. 2019). · cites it 6× “§ 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.”

Fuentes v. Becerra (W.D. Va. 2021). · cites it 6× “See 42 C.F.R. § 1001.102 (b). The regulations provide that “[a]ny” of the listed factors “may be considered to be aggravating and a basis for lengthening the period of exclusion,” including the following factors relevant to this case: (1) The acts resulting in the conviction, or…”

Figueroa v. Dep't of Health & Human Servs. (M.D. Fla. 2025). · cites it 3× “” 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.”

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