Ezekiel O. Akande, M.D., DAB CR5094 (2018)

DECISION

The Inspector General (IG) of the U.S. Department of Health and Human Services excluded Petitioner, Ezekiel Akande, from participation in Medicare, Medicaid, and all other federal health care programs for 15 years pursuant to section 1128(a)(1) of the Social Security Act (Act) (42 U.S.C. § 1320a-7(a)(1)).  Petitioner now challenges the exclusion.  For the reasons stated below, I affirm the IG’s exclusion determination.

I.  Procedural History

By letter dated August 31, 2017, the IG notified Petitioner of his exclusion from participation in Medicare, Medicaid, and all federal health care programs under 42 U.S.C. §§ 1320a-7(a)(1) for a period of 15 years.  IG Exhibit (Ex.) 1.1  The IG based the exclusion on Petitioner’s conviction in a Kentucky court of a criminal offense related to the delivery of an item or service under Medicare or a State health care program, including the performance of management or administrative services relating to the delivery of items or services, under any such program.  Id. at 1.

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The IG identified two aggravating factors as a basis for increasing the exclusion period from five to 15 years:  (1) the criminal acts resulting in Petitioner’s conviction were committed over a period of more than one year, from approximately June 2012 to April 2016; and (2) the sentence imposed on Petitioner included a term of incarceration, in this case five years.  Id. at 2.

Petitioner filed a timely request for a hearing before an administrative law judge to dispute the length of the exclusion.  I held a pre-hearing conference by telephone with the parties on November 9, 2017, the substance of which is summarized in my November 17, 2017 Order Summarizing Pre-hearing Conference and Setting Briefing Schedule (Summary Order).  See 42 C.F.R. § 1005.8.  Among other things, I directed the parties to file pre-hearing briefs articulating their respective arguments as well as identifying witnesses and exhibits in support thereof.  Summary Order at 3.

The IG filed his informal brief (IG Br.) on January 10, 2018 with exhibits designated IG Exhibits 1 through 4.  Petitioner filed his informal brief (P. Br.) on February 23, 2018 with exhibits designated P. Exhibits 1 through 4.  Petitioner concurrently filed a Motion for Leave to File Trial Video (P. Motion).  The IG filed both his reply (IG Reply) and his response to Petitioner’s motion (IG Motion Response) on March 5, 2018.

II.  Decision on the Record and Admission of Exhibits

Neither party has objected to the opposing party’s proposed exhibits.  I therefore admit IG Exs. 1-4 and P. Exs. 1-4 into the record.  See 42 C.F.R. § 1005.8(c); Civil Remedies Division Procedures (CRDP) § 14(e).

Both parties have indicated they do not believe a hearing is necessary in this matter.  IG Br. at 14; P. Br at 10.  Neither party has offered any witnesses.  Id.  Therefore, a hearing is unnecessary and I will decide the matter based on the record.  See CRDP § 19(d). 

III.  Petitioner’s Motion is Denied

Petitioner moved to submit a video of the Kentucky criminal proceeding resulting in his conviction that forms the basis of the IG’s exclusion effort.  He argues I should allow him to file 174 video files containing the entirety of his trial because he cites to that trial in his brief extensively.  P. Motion at 1-2.  The IG contends Petitioner’s submission is irrelevant to the exclusion determination because it seeks to attack the underlying conviction and does not address aggravating or mitigating factors.  IG Motion Response at 3.

The IG is correct.  Petitioner exclusively cites the video transcript in his brief to reargue his guilt before me.  P. Br. at 4-9.  However, he explicitly conceded he was convicted of a criminal offense for which exclusion is required.  Id. at 2.  Thus, his present attempt to

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attenuate his guilt by characterizing the facts brought out in his trial is irrelevant and impermissible.  See 42 C.F.R. § 1001.2007(d) (providing Petitioner may not collaterally attack the conviction underlying exclusion before me); see also Clemenceau Theophilus Acquaye, DAB No. 2745 at 7 (2016) (surveying Board cases noting it has long held such attacks to be impermissible).  Accordingly, I deny Petitioner’s motion. 

III.  Issues

The issues in this case are limited to determining if the IG has a basis for excluding Petitioner from participating in Medicare, Medicaid, and all other federal health care programs and, if so, whether the length of the exclusion imposed by the IG is unreasonable.  See 42 C.F.R. § 1001.2007(a)(1).

IV.  Jurisdiction

I have jurisdiction to hear and decide this case.  42 U.S.C. § 1320a-7(f)(1); 42 C.F.R. §§ 1001.2007(a)(1)-(2), 1005.2(a).

V.  Findings of Fact, Conclusions of Law, and Analysis2

A. Petitioner was convicted of a criminal offense related to the delivery of a health care item or service under a state health care program under 42 U.S.C. § 1320a‑7(a)(1).

The IG must exclude an individual from participation in federal health care programs if the individual was convicted of a criminal offense related to the delivery of a health care item or service under the Medicare program.  42 U.S.C. § 1320a-7(a)(1).  Here, there is plainly evidence to support the determination that Petitioner was convicted of such an offense. 

Specifically, a Kentucky state court entered judgment against Petitioner on April 24, 2017 after a jury found him guilty on one count of “Theft by Unlawful Taking over $10,000” and one count of “Devising or Engaging in a Scheme to Defraud the Kentucky Medical Assistance Program of $300 or more.”  IG Ex. 3 at 1.  Moreover, Petitioner concedes he was convicted of a criminal offense related to the delivery of an item or service under Medicare or state health care program.  P. Br. at 2.  Therefore, I have no difficulty concluding the IG has adequately demonstrated a factual and legal basis for Petitioner’s exclusion. 

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B. Petitioner must be excluded for at least five years.

An exclusion imposed pursuant to 42 U.S.C. § 1320a-7(a)(1) must be for at least five years.  42 U.S.C. § 1320a-7(c)(3)(B).

C. Two aggravating factors exist to support an exclusion period beyond the five‑year statutory minimum.

The regulations establish aggravating factors that the IG may consider to lengthen the period of exclusion beyond the five-year minimum for a mandatory exclusion.  42 C.F.R. § 1001.102(b).  In this case, the IG advised Petitioner of two aggravating factors that justified excluding him for more than five years.  IG Ex. 1 at 2.  These factors are listed at 42 C.F.R. §§ 1001.102(b)(2), (5).  I must uphold the IG’s determination as to the length of exclusion so long as it is not unreasonable.  42 C.F.R. § 1001.2007(a)(1)(ii).  Here, as outlined below, I find the IG’s determination to be reasonable.

1. The IG established the aggravating factor stated in 42 C.F.R. § 1001.102(b)(2) – the criminal acts resulting in Petitioner’s conviction lasted a period of one year or more.

The IG identifies as an aggravating factor the fact that Petitioner’s criminal acts were committed over a period of one year or more.  In support he noted a jury found Petitioner guilty of charges that described acts committed from approximately June 2012 to April 2016, nearly four years.  IG Br. at 9, citing IG Ex. 1 at 2; Ex. 2 at 1; Ex. 3.  Petitioner does not dispute the identification of this aggravating factor.  P. Br. at 2.3  The IG has adequately established the acts resulting in Petitioner’s conviction occurred over a period of one year or more.

2. The IG established the aggravating factor stated in 42 C.F.R. § 1001.102(b)(5) – the sentence imposed against Petitioner included a period of incarceration.

The IG points to Petitioner’s sentence of incarceration arising from his criminal conviction as another aggravating factor.  IG Br. at 9.  The evidence of record clearly demonstrates that the trial court sentenced Petitioner to incarceration for a period of five years.  IG Ex. 3 at 2.  The IG has therefore established a basis for application of this aggravating factor.

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D. Petitioner did not prove any mitigating factors exist in this case upon which I may rely to reduce the exclusion period.

Where the IG has properly exercised his discretion to increase the exclusionary period, as he has done here, I may only reduce that period after considering the specific mitigating factors found at 42 C.F.R. § 1001.102(c):

(1)  . . . 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.

Petitioner has the burden to prove by a preponderance of the evidence that there is a mitigating factor or factors for me to consider.  42 C.F.R. § 1005.15(b)(1). 

Here, Petitioner did not dispute the identification of the two aggravating factors cited by the IG.  P. Br. at 2.  He also concedes that no mitigating factors described in the regulation are applicable in this case.  Id. at 10.  However, he contends that other mitigating factors exist that would justify reduction of the exclusion period, primarily that his conviction did not result from an actual intent to defraud and improperly relied upon a late-introduced witness against him.  Id. at 3-9. 

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Petitioner’s asserted reasons for mitigation are not recognized by the governing regulations, and I therefore cannot consider them, whatever their merit.  See 42 C.F.R. § 1001.102(c).  It is clear Petitioner fervently wishes to attack the validity of his conviction, but this is not the appropriate forum.4  42 C.F.R. § 1001.2007(d).  Accordingly, I find that Petitioner has not met his burden to establish any mitigating factors that would justify reducing the period of exclusion.

E. A 15-year exclusion period is not unreasonable.

I must uphold the IG’s determination as to the length of exclusion unless it is unreasonable.  42 C.F.R. § 1001.2007(a)(1)(ii).  It is important to note that it is the quality of both aggravating and mitigating factors that is most important when considering the length of exclusion, not the number of factors presented in a given case.  As the Secretary of Health and Human Services stated in the preamble to the final rule establishing the exclusion regulations: 

We do not intend for the aggravating and mitigating factors to have specific values; rather, these factors must be evaluated based on the circumstances of a particular case.  For example, in one case many aggravating factors may exist, but the subject’s cooperation with the OIG may be so significant that it is appropriate to give that one mitigating factor more weight than all of the aggravating.  Similarly, many mitigating factors may exist in a case, but the acts could have had such a significant physical impact on program beneficiaries that the existence of that one aggravating factor must be given more weight than all of the mitigating.  The weight accorded to each mitigating and aggravating factor cannot be established according to a rigid formula, but must be determined in the context of the particular case at issue.

57 Fed. Reg. 3,298, 3314-15 (Jan. 29, 1992).

Petitioner attempts to minimize both the duration and severity of his criminal acts to argue the IG’s selection of a 15-year exclusion period to be unreasonable.  But in considering the quality of these factors, I cannot say the period of exclusion selected by the IG is unreasonable.  Petitioner was found to have participated in a scheme to defraud Kentucky’s Medicaid program for a period of almost four years.  While he claims the actual duration of the scheme to be shorter, even by his own reckoning his conduct lasted over a year, thus still qualifying as an aggravating factor.  P. Br. at 9; see also 42 C.F.R.

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§ 1001.102(b)(2).  Petitioner also wishes me to find the IG’s selection of a 15-year exclusion period unreasonable because his theft amounted to only $10,000.  P. Br. at 9‑10.  But his citation of case law to demonstrate other cases where much higher loss amounts resulted in a similar period of exclusion is inapt as loss amount was not a factor in aggravation here.  And I note it is hardly persuasive to argue, as a mitigating factor, that Petitioner deprived a safety net program of only $10,000.  

In a similar vein, Petitioner asks that I consider his minimum-term sentence a factor in mitigation.  P. Br. at 10.  But the fact that he received the minimum possible sentence of incarceration for his crime is less significant than the fact he was incarcerated at all.  See Eugene Goldman, M.D., a/k/a Yevgeniy Goldman, M.D., DAB No. 2635 at 6 (2015).  The fact that both a jury of his peers and a sentencing judge thought a five-year sentence of incarceration appropriate for what Petitioner has argued to be a clerical error in billing suggests the true severity of Petitioner’s misconduct.  I cannot say the IG was unreasonable to give it significant weight in determining Petitioner’s period of exclusion.

In sum, after consideration of these factors, I conclude the two proven aggravating factors are entitled to significant weight.  Petitioner engaged in criminal conduct that victimized a state Medicaid program, meant for the poor and needy, for his own pecuniary gain.  He did so for a substantial period of time, and his crime resulted in a significant period of incarceration.  The length of exclusion imposed by the IG is reasonable and warranted. 

VI.  Conclusion

I affirm the IG’s determination to exclude Petitioner for 15 years from participating in Medicare, Medicaid, and all federal health care programs pursuant to 42 U.S.C. § 1320a‑7(a)(1).

• 1. Document 6b in the official case file maintained in the Departmental Appeals Board E-file (DAB E-file) system; for clarity and simplicity, I will cite to the exhibits as they are identified by the parties’ briefs, not the document numbers assigned by DAB E-file.
• 2. My findings of fact and conclusions of law appear in bold and italics.
• 3. Petitioner does argue that he does not believe the IG should have imposed these aggravating factors to increase the exclusion period. P. Br. at 2. But I have no authority to override the IG’s determination of which aggravating factors to apply, so long as the IG establishes the existence of those aggravating factors.
• 4. Should Petitioner prevail in appealing his conviction through the appropriate channels, the IG will retroactively reinstate Petitioner to the effective date of the original exclusion action. 42 C.F.R. § 1001.3005.