Muna Alnoubani, DAB CR5176 (2018)

DECISION

Petitioner, Muna Alnoubani, is excluded from participating in Medicare, Medicaid, and all federal health care programs pursuant to section 1128(a)(1) of the Social Security Act (Act) (42 U.S.C. § 1320a-7(a)(1)), effective January 18, 2018. There is a proper basis for exclusion. Petitioner’s exclusion for five years is required by section 1128(c)(3)(B) of the Act (42 U.S.C. § 1320a-7(c)(3)(B)). Exclusion for an additional five years, a total minimum exclusion of ten years,1 is not unreasonable based upon the presence of two aggravating factors and the absence of any mitigating factors.

I. Background

The Inspector General (I.G.) of the United States Department of Health and Human Services (HHS) notified Petitioner by letter dated December 29, 2017, that she was being excluded from participation in Medicare, Medicaid, and all federal health care programs for ten years. The I.G. advised Petitioner that she was being excluded pursuant to section

Page 2

1128(a)(1) of the Act, based on her conviction in the United States District Court, Southern District of Ohio (district court), of a criminal offense related to the delivery of an item or service under Medicare or a state health care program. The I.G. also notified Petitioner that the mandatory five-year exclusion was extended to ten years based on the existence of two aggravating factors. I.G. Exhibit (I.G. Ex.) 1.

Petitioner timely requested a hearing on February 27, 2018. The case was assigned to me on March 5, 2018, to hear and decide. I convened a prehearing conference by telephone on March 26, 2018, the substance of which is memorialized in my Prehearing Conference Order and Schedule for Filing Briefs and Documentary Evidence issued on March 27, 2018 (Prehearing Order). On May 10, 2018, the I.G. filed a brief (I.G. Br.) and I.G. Exs. 1 through 5. On June 27, 2018, Petitioner filed her brief (P. Br.) and Petitioner’s exhibits (P. Exs.) 1 through 6. The I.G. filed a reply brief (I.G. Reply) on July 9, 2018. The parties have not objected to my consideration of all offered exhibits and I.G. Exs. 1 through 5 and P. Exs. 1 through 6 are admitted as evidence.

II. Discussion

1. A. Applicable Law

Section 1128(f) of the Act (42 U.S.C. § 1320a-7(f)) provides Petitioner with rights to an administrative law judge (ALJ) hearing and judicial review of the final action of the Secretary of HHS (Secretary). The right to a hearing before an ALJ is set forth in 42 C.F.R. §§ 1001.2007(a) and 1005.2,2 and the rights of both the sanctioned party and the I.G. to participate in a hearing are specified by 42 C.F.R. § 1005.3. Either or both parties may choose to waive appearance at an oral hearing and to submit only documentary evidence and written argument for my consideration. 42 C.F.R. § 1005.6(b)(5).

Pursuant to section 1128(a)(1) of the Act and 42 C.F.R. § 1001.101(a), the Secretary must exclude from participation in the Medicare and Medicaid programs any individual convicted of a criminal offense related to the delivery of an item or service under Medicare or a state health care program. Pursuant to section 1128(i) of the Act (42 U.S.C. § 1320a-7(i)), an individual is convicted of a criminal offense when: (1) a judgment of conviction has been entered against him or her in a federal, state, or local court whether an appeal is pending or the record of the conviction is expunged; (2) there is a finding of guilt by a court; (3) a plea of guilty or no contest is accepted by a court; or (4) the individual has entered into any arrangement or program where judgment of conviction is withheld.

Page 3

Exclusion for a minimum period of five years is mandatory for any individual or entity convicted of a criminal offense for which exclusion is required by section 1128(a) of the Act. Act § 1128(c)(3)(B) (42 U.S.C. § 1320a-7(c)(3)(B)). Pursuant to 42 C.F.R. § 1001.102(b), an individual’s period of exclusion may be extended based on the presence of specified aggravating factors. Only if the aggravating factors justify an exclusion of longer than five years, however, are mitigating factors considered as a basis for reducing the period of exclusion to no less than five years. 42 C.F.R. § 1001.102(c).

The standard of proof is a preponderance of the evidence. 42 C.F.R. § 1001.2007(c). There may be no collateral attack of the conviction that provides the basis of the exclusion. 42 C.F.R. § 1001.2007(d). Petitioner bears the burden of proof and the burden of persuasion on any affirmative defenses or mitigating factors, and the I.G. bears the burden on all other issues. 42 C.F.R. § 1005.15(b).

2. B. Issues

42 C.F.R. § 1001.2007(a)(l).

3. C. Findings of Fact, Conclusions of Law, and Analysis

My conclusions of law are set forth in bold followed by the pertinent findings of fact and analysis.

1. 1. Petitioner’s request for hearing was timely and I have jurisdiction.

Petitioner filed her request for hearing on February 27, 2018, 60 days after the I.G. sent Petitioner the December 29, 2017 notice of exclusion. I.G. Ex. 1. Therefore, Petitioner’s request is timely pursuant to 42 C.F.R. § 1005.2(c).

There is no dispute that I have jurisdiction pursuant to section 1128(f) of the Act and 42 C.F.R. pt. 1005.

Page 4

2. 2. Decision on the documentary evidence and parties’ pleadings is appropriate in this case.

During the prehearing conference on March 26, 2018, Petitioner waived an oral hearing and the parties agreed this case may be decided upon the documentary evidence and the parties’ pleadings. Prehearing Order ¶ 5.

3. 3. Petitioner’s exclusion is required by section 1128(a)(1) of the Act.

1. a. Facts

On June 21, 2016, Petitioner was charged with one count of conspiring with her husband to commit health care fraud against the Ohio Medicaid program, during the period from about October 27, 2011 through about March 14, 2015, in violation of 18 U.S.C. § 1349. Petitioner was also charged with one count of money laundering on or about December 5, 2014, in violation of 18 U.S.C. §§ 2 and 1957. I.G. Ex. 2.

On June 14, 2016, Petitioner agreed to plead guilty to the count of conspiracy with her husband to commit health care fraud in violation of 18 U.S.C. § 1349. I.G. Ex. 3 at 1. In exchange for her guilty plea, Petitioner’s sentence was limited to three years of probation, a $100 special assessment, to pay restitution to the Ohio Medicaid program, and forfeiture of property. I.G. Ex. 3 at 2. Petitioner agreed to give a complete statement to law enforcement regarding the criminal charges against her. I.G. Ex. 3 at 3.

On September 14, 2017, judgment was entered pursuant to Petitioner’s guilty plea to conspiracy to commit health care fraud and she was sentenced to three years of probation, to pay an assessment of $100, and to pay restitution of $33,000. I.G. Ex. 4. However, the district court also ordered, pursuant to an agreement between the federal government and Petitioner and her co-conspirator husband that the $561,557.26 proceeds from the sale of the home of Petitioner and her co-conspirator husband be paid as restitution to Ohio Medicaid. I.G. Ex. 5.

Petitioner presented evidence that shows she cooperated with both state and federal prosecutors. P. Exs. 1-3. Petitioner also presented a letter from Petitioner’s probation officer dated May 2, 2018, which indicates that Petitioner is complying with the terms of her probation and sentence. P. Ex. 4. P. Ex. 5 is a letter of recommendation for Petitioner from a nursing instructor colleague dated February 25, 2018. P. Ex. 6 is Petitioner’s affidavit in which she affirms as true and accurate the content of her brief.

2. b. Analysis

The I.G. cites section 1128(a)(1) of the Act as the basis for Petitioner’s mandatory exclusion. The statute provides:

Page 5

(a) MANDATORY EXCLUSION.–The Secretary shall exclude the following individuals and entities from participation in any Federal health care program (as defined in section 1128B(f)):

(1) CONVICTION OF A PROGRAM-RELATED CRIME.–Any individual or entity that has been convicted of a criminal offense related to the delivery of an item or service under [the Medicare program] or under any State health care program.

Act § 1128(a)(1). The statute requires that the Secretary exclude from participation in Medicare, Medicaid, and all federal health care programs any individual or entity: (1) convicted of a criminal offense; (2) where the offense is related to the delivery of an item or service under Medicare or a state health care program.

Petitioner concedes she was convicted of a criminal offense that triggers exclusion pursuant to section 1128(a)(1) of the Act and that the minimum period of exclusion is five years. P. Br. at 1. Petitioner’s concession is supported by the facts. Petitioner was convicted because she pleaded guilty, her plea was accepted, and judgment of conviction entered. Petitioner pleaded guilty to and was convicted of a charge of conspiracy to commit health care fraud. There is a nexus, that is, a common sense connection, between Petitioner’s offense and the delivery of health care services in connection with the Ohio Medicaid program. Accordingly, I conclude that the elements of section 1128(a)(1) of the Act are satisfied and there is a basis for Petitioner’s exclusion from Medicare, Medicaid, and all federal health care programs.

I have concluded that a basis exists to exclude Petitioner pursuant to section 1128(a)(1) of the Act. Therefore, the I.G. must exclude Petitioner for a minimum period of five years pursuant to section 1128(c)(3)(B) of the Act. The I.G. has no discretion to impose a lesser period and I may not reduce the period of exclusion below five years.

The remaining issue is whether it is unreasonable to extend Petitioner’s exclusion by an additional five years. My determination of whether the exclusionary period in this case is unreasonable turns on whether:

Page 6

The I.G. notified Petitioner that two aggravating factors are present in this case that justify an exclusion of more than five years:

I.G. Ex. 1 at 2. The I.G. asserts in his brief that the number “$5,000” in the first aggravating factor is merely a scrivener’s error and that the I.G. is well aware that the current requirement for the aggravating factor under 42 C.F.R. § 1001.102(b)(1) is $50,000 of actual or intended loss. I.G. Br. at 2 n.1.

The Departmental Appeals Board (Board) has previously accepted that an amount ordered as restitution constitutes proof of the amount of financial loss to a government program. Laura Leyva, DAB No. 2704 at 9 (2016); Juan de Leon, Jr., DAB No. 2533 at 5 (2013); Craig Richard Wilder, DAB No. 2416 at 9 (2011). In this case, Petitioner was ordered as part of her sentence to pay restitution of $33,000. I.G. Ex. 4. Further, the district court ordered, pursuant to an agreement between the federal government and Petitioner and her co-conspirator husband that the $561,557.26 proceeds from the sale of the home of Petitioner and her co-conspirator husband be paid as restitution to Ohio Medicaid. I.G. Ex. 5. Considering the restitution Petitioner was ordered to pay by the district court plus forfeiture of the proceeds of the sale of her house, the restitution ordered for Petitioner and her co-conspirator husband amounted to more than ten times $50,000. The Board has previously accepted that the amount of restitution ordered is good evidence of the amount of loss to the governmental entity designated to receive restitution. I find persuasive the Board’s analysis on this point and conclude the restitution ordered in this case is competent and convincing evidence that the offense of

Page 7

Petitioner and her co-conspirator husband caused or was intended to cause loss to the government far in excess of $50,000. I conclude that the aggravating factor recognized under 42 C.F.R. § 1001.102(b)(1) is established in this case.

Petitioner argues that pursuant to her plea agreement she was supposed to pay restitution of no more than $10,000. She argues that the government should be bound by the agreement in this case. P. Br. at 5. I do not find the limitation on restitution Petitioner asserts is supported by the language of the plea agreement. I.G. Ex. 3 at 2. In fact, the evidence shows that the district court ordered Petitioner to pay restitution of $33,000 and to forfeit the proceeds of the sale of her home of more than $500,000 that was paid as restitution to Ohio Medicaid. I.G. Exs. 4, 5. The total amount of restitution Petitioner and her co-conspirator husband paid to Ohio Medicaid is good evidence that the loss Petitioner and her husband caused the government far exceeded the $50,000 amount necessary to trigger the aggravating factor of 42 C.F.R. § 1001.102(b)(1).

Petitioner does not dispute the existence of the second aggravating factor. P. Br. Petitioner was charged with conspiracy to commit health care fraud during the period from about October 27, 2011 through about March 14, 2015. She pleaded guilty to and was convicted of that charge. I.G. Exs. 2, 3. I conclude that Petitioner is bound by her plea agreement and admission of the offense as part of her guilty plea before the district court. Petitioner cannot challenge her conviction before me. 42 C.F.R. § 1001.2007(d).

I conclude that the aggravating factors that the I.G. considered are established by the undisputed facts. The aggravating factors are a basis for the I.G. to extend the period of exclusion beyond the minimum exclusion of five years. 42 C.F.R. § 1001.102(b)(5), (b)(9).

If any of the aggravating factors authorized by 42 C.F.R. § 1001.102(b) justify an exclusion of longer than five years, then mitigating factors may be considered as a basis for reducing the period of exclusion to no less than five years. 42 C.F.R. § 1001.102(c). The only authorized mitigating factors that I may consider are those established by 42 C.F.R. § 1001.102(c):

1. (1) [T]he individual or entity was convicted of three or fewer misdemeanor offenses, and the entire amount of financial loss (actual 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;

Page 8

1. (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
2. (3) The individual’s or entity’s cooperation with federal or state officials resulted in –
   1. (i)   Others being convicted or excluded from Medicare, Medicaid and all other federal health care programs,
   2. (ii)  Additional cases being investigated or reports being issued by the appropriate law enforcement agency identifying program vulnerabilities or weaknesses, or
   3. (iii) The imposition against anyone of a civil money penalty or assessment under [42 C.F.R. pt. 1003].

Petitioner bears the burden of going forward and the burden of persuasion on any mitigating factors. 42 C.F.R. § 1005.15(b)(1); Stacey R. Gale, DAB No. 1941 at 9 (2004); Arthur C. Haspel, D.P.M., DAB No. 1929 at 5 (2004).

Petitioner argues that the evidence shows that she cooperated with federal and state officials who were investigating additional cases of health care fraud. She asserts that her cooperation should be considered a mitigating factor pursuant to 42 C.F.R. § 1002.102(c)(3)(ii). P. Br. at 6. I have examined Petitioner’s argument and the evidence that she offered in support of her argument. I conclude that she has failed to establish any mitigating factor by a preponderance of the evidence.

Petitioner presented a letter dated September 15, 2017, from the Assistant United States Attorney (AUSA) who prosecuted Petitioner. The AUSA states that Petitioner was given a better plea arrangement than her husband because she was less culpable. He also states that “[d]uring the course of this case, [Petitioner] was cooperative.” P. Ex. 1. Petitioner presented a February 16, 2018 letter from an Ohio Assistant Attorney General who indicates that on January 22, 2018, Petitioner offered to provide information in an on-going investigation. P. Ex. 2. Petitioner presented an unsigned letter from another Ohio Assistant Attorney General dated June 25, 2018, which indicates Petitioner cooperated in the prosecution of another individual for an unspecified crime, by giving testimony before a grand jury and that Petitioner was expected to testify at trial, if necessary. P. Ex. 3.

Page 9

In Stacey R. Gale, the Departmental Appeals Board (Board) elaborated on a petitioner’s burden related to proving a mitigating factor under 42 C.F.R. § 1001.102(c)(3):

Thus, it is Petitioner’s responsibility to locate and present evidence to substantiate the existence of any alleged mitigating factor in her case. In alleging the existence of the factor at 42 C.F.R. § 1001.102(c)(3)(ii), Petitioner must demonstrate that she cooperated with a state or federal official and that this cooperation resulted in “[a]dditional cases being investigated.” As is apparent from the foregoing, the I.G. does not have the responsibility to prove the non-existence of the mitigating factor under the regulation. For example, the I.G. does not have the responsibility to substantiate under the regulation that even though Petitioner may have cooperated with a state or federal official, that cooperation did not result in additional cases being investigated. It is entirely Petitioner’s burden to demonstrate that her cooperation with a state or federal official resulted in additional cases being investigated.

Gale, DAB No. 1941 at 9. The Board went on to explain that mere cooperation is not enough. A petitioner must show that the cooperation resulted in another being convicted or additional cases being investigated or reports being issued. The regulation does not “authorize” the I.G. to independently determine whether or not state or federal investigators should have opened an investigation or issued a report. The Board found that the regulation requires that a petitioner show that law enforcement officials actually exercised discretion and began a new investigation or issued a report as a result of a petitioner’s cooperation.

The rule is not designed to reward individuals who may have provided evasive, speculative, unfounded or even spurious information that proved to be so useless that the government official was unable even to open a new case for investigation. Rather, the regulation is designed to authorize mitigation for significant or valuable cooperation that yielded positive results for the state or federal government in the form of a new case actually being opened for investigation or a report actually being issued.

Id. at 10-11. The Board further explained that the regulation requires that the cooperation be validated by the fact that investigators opened a “new case” rather than simply providing investigators additional information related to an ongoing case. Id. at 14, 17;

Page 10

Farzana Begum, M.D., DAB No. 2726 (2016), aff’d, Farzana Begum M.D. v. Erick D. Hargan, No. 16CV9624, 2017 WL 5624388 (N.D. Ill. Nov. 21, 2017).

Petitioner’s evidence shows she cooperated with the United States Attorney and the Ohio Attorney General. P. Ex. 1-3. However, Petitioner’s evidence does not show that it is more likely than not that her cooperation resulted in the opening of new cases or reports being issued that identified program vulnerabilities. Accordingly, I conclude Petitioner has failed to establish the mitigating factor under 42 C.F.R. § 1001.102(c)(3)(ii).

The regulation states that the ALJ must determine whether the length of exclusion imposed is “unreasonable.” 42 C.F.R. § 1001.2007(a)(1). The Board, however, has made clear that the role of the ALJ in exclusion cases is to conduct a de novo review of the facts related to the basis for the exclusion and the existence of aggravating and mitigating factors identified at 42 C.F.R. § 1001.102 and to determine whether the period of exclusion imposed by the I.G. falls within a reasonable range. De Leon, DAB No. 2533 at 3 (2013); Wilder, DAB No. 2416 at 8 (2011); Joann Fletcher Cash, DAB No. 1725 at 17 n.6 (2000). The Board explained that, in determining whether a period of exclusion is “unreasonable,” the ALJ is to consider whether such period falls “within a reasonable range.” Cash, DAB No. 1725 at 17 n.6. The Board cautions that whether the ALJ thinks the period of exclusion is too long or too short is not the issue. The ALJ may not substitute his or her judgment for that of the I.G. and may only change the period of exclusion in limited circumstances.

In John (Juan) Urquijo, DAB No. 1735 (2000), the Board made clear that, if the I.G. considers an aggravating factor to extend the period of exclusion and that factor is not later shown to exist on appeal, or if the I.G. fails to consider a mitigating factor that is shown to exist, then the ALJ may make a decision as to the appropriate extension of the period of exclusion beyond the minimum. In Gary Alan Katz, R.Ph., DAB No. 1842 (2002), the Board suggests that when it is found that an aggravating factor considered by the I.G. is not proved before the ALJ, then some downward adjustment of the period of exclusion should be expected absent some circumstances that indicate no such adjustment is appropriate. Thus, the Board has by these various prior decisions significantly limited my authority under the applicable regulation to judge the reasonableness of the period of exclusion.

Based on my de novo review, I conclude that a basis for exclusion exists and that the undisputed evidence establishes the two aggravating factors that the I.G. relied on to impose the ten-year exclusion. Petitioner has not established by a preponderance of the evidence a mitigating factor that the I.G. failed to consider. I conclude that a period of

Page 11

exclusion of ten years is in a reasonable range and not unreasonable considering the existence of two aggravating factors and the absence of any mitigating factors. No basis exists for me to reassess the period of exclusion.

III. Conclusion

For the foregoing reasons, Petitioner is excluded from participation in Medicare, Medicaid, and all other federal health care programs for a minimum of ten years, effective January 18, 2018.

• 1. Pursuant to 42 C.F.R. § 1001.3001, Petitioner may apply for reinstatement only after the period of exclusion expires. Reinstatement is not automatic upon completion of the minimum period of exclusion.
• 2. Citations are to the 2017 revision of the Code of Federal Regulations (C.F.R.), unless otherwise stated.