Dr. Ajibola Ayeni, DAB CR5956 (2021)

DECISION

The Inspector General (IG) of the United States Department of Health and Human Services excluded Petitioner, Dr. Ajibola Ayeni, from participation in Medicare, Medicaid, and all other federal health care programs based on his conviction of a criminal offense that was related to the delivery of a health care item or service under Medicare.  For the reasons discussed below, I conclude that the IG has a basis for excluding Petitioner because he has a conviction for “theft or embezzlement in connection with health care,” with the victim of his crime being the Medicare program.  The IG has proven three aggravating factors, and no mitigating factors are present.  A 15-year exclusion is reasonable, effective January 20, 2021.

I. Background

In a letter dated December 31, 2020, the IG excluded Petitioner from participation in Medicare, Medicaid, and all federal health care programs as defined in section 1128B(f) of the Social Security Act (Act) (42 U.S.C. § 1320a-7b(f)) for a minimum period of 15 years, effective 20 days from the date of the letter.  IG Ex. 1 at 1.  The IG explained the following bases for excluding Petitioner:

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This action is being taken under section 1128(a)(1) of the Act and is effective 20 days from the date of this letter. See 42 U.S.C. § 1320a-7(a), 42 C.F.R. [§] 1001.101(a). This exclusion is due to your conviction as defined in section 1128(i) (42 U.S.C. [§] 1320a-7(i)), in the United States District Court, Northern District of Illinois, of a criminal offense related to the delivery of an item or service under the Medicare or a State health care program, including the performance of management or administrative services relating to the delivery of such items or services, under any such program.

IG Ex. 1 at 1.  The IG informed Petitioner that the exclusion was for “a minimum period of 15 years.”  IG Ex. 1 at 1; see 42 U.S.C. § 1320a-7(c)(3)(B).  The IG extended the exclusion period from the statutory minimum of five years to 15 years based on the presence of the following three aggravating factors:  1.) The acts resulting in the conviction, or similar acts, that caused, or were intended to cause, a financial loss to a government program or one or more entities of $50,000 or more, with $523,600 in court-ordered restitution; 2.) The acts that resulted in the conviction, or similar acts, were committed over a period of one year or more, from “2011 to June 2015”; and, 3.) The sentence imposed by the court included incarceration, specifically, six months of incarceration.  IG Ex. 1 at 2; 42 C.F.R. § 1001.102(b). The IG did not cite any mitigating factors.  IG Ex. 1; see 42 C.F.R. § 1001.102(c).

Petitioner filed a timely request for an administrative law judge (ALJ) hearing on March 5, 2021.Thereafter, the Civil Remedies Division issued my Standing Pre-Hearing Order (Pre-Hearing Order). On March 23, 2021, I presided over a telephonic pre-hearing conference and issued an order summarizing the conference.

The IG, through counsel, filed a brief (IG Br.) and five proposed exhibits (IG Exs. 1-5).  Petitioner, who is represented by counsel, filed a brief (P. Br.) and four proposed exhibits (P. Exs. 1-4).  Thereafter, the IG filed a reply (IG Reply) in which she objected to Petitioner’s proposed Exhibit 4 as irrelevant, along with a motion for leave to file a rebuttal exhibit (IG Ex. 6).  See 42 C.F.R. § 1005.17(h) (“The ALJ will permit the parties to introduce rebuttal witnesses and evidence.”).  Petitioner did not oppose the IG’s motion for leave to submit IG Ex. 6.  Pre-Hearing Order, § 16 (directing that an opposition to a motion must be filed within 10 days).  

I overrule the IG’s objection to P. Ex. 4, but I also admit the evidence submitted in rebuttal (IG Ex. 6). Therefore, I admit IG Exs. 1-6 and P. Exs. 1-4 into the evidentiary record. 

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Neither party has submitted the written testimony of any witnesses, nor has a party provided notice that it is unable to provide the written direct testimony of an essential witness.  See Pre-Hearing Order § 8. An in-person hearing for the purpose of cross-examination of witnesses is therefore unnecessary.  See Pre-Hearing Order §§ 9, 10.  This matter is ready for a decision on the merits of the written record.

II. Issues

Whether there is a basis for exclusion, and, if so, whether the length of the exclusion that the IG has imposed is unreasonable.  42 C.F.R. § 1001.2007(a)(1).

III. Jurisdiction

I have jurisdiction to adjudicate this case.  42 U.S.C. § 1320a-7(f)(1); 42 C.F.R. § 1005.2.

IV. Findings of Fact, Conclusions of Law, and Analysis1

1. Petitioner was convicted of a program-related crime, in that his criminal offense related to the delivery of a health care item or service under the Medicare program, which subjects him to a mandatory exclusion from all federal health care programs for a minimum period of five years.

Subsection 1128(a)(1) requires a mandatory exclusion from all federal health care programs under certain conditions.2 Section 1128(a)(1) states:

(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 program-related crimes—Any individual or entity that has been convicted of a

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criminal offense related to the delivery of an item or service under title XVIII or under any State health care program.

42 U.S.C. § 1320a-7(a)(1).

As explained below, I find that Petitioner was convicted of a criminal offense for purposes of the Act that mandates exclusion from all federal health care programs for a minimum period of five years.

On August 22, 2019, Petitioner entered into a plea agreement with the United States Attorney for the Northern District of Illinois in which he admitted guilt to a single count charged by superseding information, “Theft or embezzlement in connection with health care,” in violation of 18 U.S.C. § 669.3 IG Ex. 3. Petitioner acknowledged that he “will plead guilty because he is in fact guilty of the charge contained in the superseding information,” that that the facts “establish his guilt beyond a reasonable doubt and constitute relevant conduct” pursuant to the United States Sentencing Guidelines (“U.S.S.G.” or “Guidelines”).  IG Ex. 3 at 2.

Petitioner admitted that, as the owner and manager of Docs at the Door, P.C., a home health agency that was enrolled in the Medicare program, he “contracted with physicians to perform home health visits for patients” and “instructed others to submit claims to Medicare for home visits performed by physicians he employed through Docs at the Door.”  IG Ex. 3 at 2-3.  Petitioner also instructed others to submit claims for care plan oversight (CPO) services for each patient who had a home visit performed by Docs at the Door physicians, “even though he knew that none of the physicians he employed actually provided an additional thirty minutes per patient per month of complex care coordination.”  IG Ex. 3 at 2-3.  Petitioner acknowledged “that, from 2011 through June 2015, Medicare paid approximately $523,600 to Docs at the Door as a result of the 4,367 false claims he caused to be submitted by Docs at the Door for purported care plan oversight services.”  IG Ex. 3 at 3.

In a sentencing memorandum filed on February 12, 2020, the United States requested that Petitioner be sentenced to the maximum term of incarceration of 12 months.  IG Ex. 4 at 8.  The United States argued, inter alia, that a two-level Guidelines sentencing enhancement was warranted because Petitioner “obstructed or impeded the

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administration of justice during the investigation of his health care fraud offenses that resulted in his conviction.” IG Ex. 4 at 6.  The United States did not cite any cooperation or substantial assistance warranting a downward departure from the Guidelines sentencing range.  IG Ex. 4.  On September 10, 2020, a District Judge imposed judgment based on Petitioner’s guilty plea and sentenced him to a six-month term of incarceration.  IG Ex. 5 at 1-2.  The District Judge also ordered that Petitioner pay $523,600 in restitution.  IG Ex. 5 at 7.

Petitioner does not dispute that his conviction is for a criminal offense relating to the delivery of an item or service under the Medicare program.  Request for Hearing; P. Br.  Pursuant to section 1128(i)(3) of the Act, an individual is considered to have been convicted of a criminal offense “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)(3).  Petitioner pleaded guilty to the criminal offense of “Theft or embezzlement in connection with health care,” in violation of 18 U.S.C. § 669, and was ordered to serve six months of incarceration and pay $523,600 in restitution to the victim of the crime, the Department of Health & Human Services (the administrator of the Medicare program).  IG Ex. 5 at 7; see 18 U.S.C. § 3553(a)(7) (restitution is provided to the victims of an offense).

Congress, through enactment of the Act, determined that an individual who has been convicted of a criminal offense related to either the delivery of an item or service under Medicare or a state health care program must be excluded from federal health care programs for no less than five years, and it afforded neither the IG nor an ALJ the discretion to impose an exclusion of a shorter duration. 42 U.S.C. § 1320a-7(c)(3)(B).  I cannot shorten the length of the exclusion to a period of less than five years because I do not have authority to “find invalid or refuse to follow Federal statutes or regulations.” 42 C.F.R. § 1005.4(c)(1).  Petitioner has a criminal conviction for theft or embezzlement from a health care program related to services that were not provided, and the health care program was the Medicare program.  Petitioner’s offense therefore relates to the delivery of a health care item or service under Medicare.  Petitioner’s exclusion is mandated for a minimum period of five years based on subsection 1128(a)(1).

2. A 15-year minimum exclusion is reasonable based on the presence of three aggravating factors and no mitigating factors.

The Act requires a minimum exclusion period of five years when the exclusion is mandated under section 1320a-7(a).  42 U.S.C. § 1320a-7(c)(3)(B).  In this case, exclusion is required under section 1320a-7(a)(1), and therefore Petitioner must be excluded for a minimum of five years.  The IG has the discretion to impose an exclusion longer than the minimum period when aggravating factors are present.  See 42 C.F.R. § 1001.102. The IG increased the minimum exclusion period from five years to 15 years based on the presence of three aggravating factors.  IG Ex. 1 at 1-2.  The IG bears the

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burden of persuasion with respect to aggravating factors, and Petitioner bears the burden of persuasion with respect to mitigating factors.  42 C.F.R. § 1005.15(c). 

Petitioner does not dispute the presence of three aggravating factors.  Request for Hearing; P. Br.  Nor does Petitioner dispute that a 10-year lengthening of the minimum period of exclusion is reasonable based on the IG’s consideration of the three aggravating factors.  Request for Hearing; P. Br.  Rather, Petitioner limits his arguments to whether the IG should have applied a mitigating factor, cooperation with federal or state officials.  P. Br.; see 42 C.F.R. § 1001.102(c)(3).  As I explain below, a 15-year exclusion is reasonable based on the presence of three aggravating, and no mitigating, factors.

The first aggravating factor is that the loss to a Government program or other entities as a result of Petitioner’s criminal conduct was greater than $50,000, as evidenced by sentencing order that he pay $523,600 in restitution to the Department of Health and Human Services.  IG Ex. 1 at 2; see IG Ex. 5 at 5; 42 C.F.R. § 1001.102(b)(1). The $523,600 loss to the Medicare program was more than 10 times the threshold for application of this aggravating factor, and the IG had a reasonable basis to lengthen the exclusion based on this factor.  42 C.F.R. § 1001.102(b)(1).

The second aggravating factor is that the acts resulting in Petitioner’s conviction, or similar acts, were committed over a period of one year or more.  42 C.F.R. § 1001.102(b)(2); see IG Ex. 3 at 3 (“[Petitioner] acknowledges that, from 2011 through June 2015, Medicare paid approximately $523,600 to Docs at the Door as the result of 4,367 false claims he caused to be submitted by Docs at the Door for the purported care plan oversight services.”).  The IG properly considered the length of the acts underlying Petitioner’s conviction to be an aggravating factor.  42 C.F.R. § 1001.102(b)(2).

The third aggravating factor is that the sentence imposed included incarceration, specifically six months of incarceration.  IG Ex. 1 at 2; see IG Ex. 5 at 2; 42 C.F.R. § 1001.102(b)(5).  Because Petitioner had been sentenced to incarceration, the IG had a reasonable basis to lengthen the exclusion.  42 C.F.R. § 1001.102(b)(5).

Petitioner does not dispute the IG’s application of the aforementioned aggravating factors, nor does Petitioner dispute that the IG had a reasonable basis to lengthen the minimum period of exclusion by 10 years based on these three aggravating factors.  Request for Hearing; P. Br.  Petitioner’s sole argument is that a mitigating factor not considered by the IG may be applicable.  P. Br. (“Petitioner may be able to carry his burden of proving that his cooperation led to ‘additional cases being investigated.’”) (bold and capitalization omitted).4

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Petitioner is correct that evidence of aggravation may be offset by evidence of mitigation if it relates to one of the factors set forth at 42 C.F.R. § 1001.102(c).  Pursuant to 42 C.F.R. § 1001.102(c)(3), Petitioner may demonstrate mitigation if his cooperation resulted in others being convicted or excluded from Medicare, Medicaid and all other federal health care programs; resulted in additional cases being investigated or reports being issued by the appropriate law enforcement agency identifying program vulnerabilities or weaknesses; or resulted in a civil monetary penalty or assessment pursuant to 42 C.F.R. part 1003.

Petitioner submitted evidence that he participated in an approximately one-hour proffer session with federal law enforcement officials on November 20, 2018.  P. Ex. 1.  Petitioner also submitted an excerpt from a motion seeking release on bond pending an appeal of his sentence in which he argued that “after pleading guilty, [he] had voluntarily participated in a proffer session on November 20, 2018, with agents of the U.S. Department of Health & Human Servicers/Office of Inspector General and the Federal Bureau of Investigation, and the federal prosecutors assigned to his case.”5 P. Ex. 4 at 2-3; see IG Ex. 6 at 8, fn.2 (addressing the post-conviction procedural history of Petitioner’s criminal case).

The IG submitted rebuttal evidence, in the form of an appellate brief authored and filed by one of the federal prosecutors who participated in the November 20, 2018 proffer session.  IG Ex. 6; see P. Ex. 1. In addressing Petitioner’s challenge to the sentence imposed, the United States reported that Petitioner did not cooperate with the government, stating: 

[Petitioner] complains that the [pre-sentence report] does not reference what he calls “[Petitioner’s] proffer and cooperation with the government.”  [Petitioner] was not a government cooperator.  He did not assist the government, and as such, the plea agreement provided him with no cooperation credit—a decision solely within the government’s discretion.” 

IG Ex. 6 at 30.

Although Petitioner presented evidence that he participated in a one-hour proffer session with law enforcement officials in November 2018, he has not presented any evidence that this proffer session amounts to cooperation. See P. Br.; P. Ex. 1.  Even accepting Petitioner’s claim that he “cooperated” with law enforcement officials, Petitioner has not proven that his purported cooperation yielded a result contemplated by section 1001.102(c)(3), such as a conviction, exclusion, other cases being investigated, or reports

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being issued.  See P. Br. (“[Petitioner]’s proffer and production of documents, alone, does not establish that his cooperation led to ‘additional cases being investigated.’”).  Mitigation pursuant to section 1001.102(c)(3) requires not just cooperation, but also that any cooperation produces a specific result, namely other convictions, exclusions, investigations, reports being issued that identify program vulnerabilities and/or civil monetary penalties or assessments.  

Moreover, a federal grand jury investigation was already underway at the time of Petitioner’s proffer session, and the government sought “a proffer of the testimony” he may be able to provide to a grand jury “regarding his knowledge of the facts underlying the matter.”  Request for Hearing, Exhibit A.  The then-ongoing investigation appears to have already yielded evidence, as indicated by the email correspondence prosecutors presented to Petitioner during the proffer session.  P. Exs. 1 at 2; 3. Petitioner’s claim that his proffer session may have caused investigations to be opened, in addition to what was already the subject of a grand jury investigation, is nothing more than wishful and unsupported speculation.

Likewise, by confronting Petitioner with contradictory email correspondence during the proffer session, it appears that prosecutors questioned the veracity of Petitioner’s statements.  P. Exs. 1, 3.  To the extent Petitioner vaguely alleged wrongdoing by former employees of his business, at least two of those individuals testified against him at trial.  See P. Ex. 1 (alleging that a home health agency operated by several of his former employees “need[ed] further review” by law enforcement); Request for Hearing, Exhibit B (argument at the sentencing hearing that the witnesses’ testimony at trial supported an obstruction of justice sentencing enhancement).6

Regardless of the veracity of the information provided during the proffer session, which I need not determine, it is apparent that the law enforcement officials did not elicit any further assistance from Petitioner or seek his testimony before the grand jury.  Notably, neither the United States, nor Petitioner, sought a downward departure from the Guidelines sentence range based on any cooperation.  IG Ex. 4; P Ex. 4 (“Moreover, and a factor not brought to the Court’s attention by then-counsel, after pleading guilty, [Petitioner] had voluntarily participated in a proffer session on November 20, 2018 . . . . ”); see United States v. Knox, 573 F.3d 441, 453 (7th Cir. 2009) (“[A] district court may consider a defendant’s cooperation with the government as a basis for a reduced sentence, even if the government has not made a § 5K1.1 motion.”).  To the contrary, the

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government sought the maximum Guidelines sentence of incarceration.  IG Ex. 4 at 12; see Request for Hearing, Exhibit C (transcript of sentencing hearing).  And if there was any doubt whether Petitioner cooperated with the government, which there is not, the prosecutor plainly stated, in her response to Petitioner’s appellate argument that he cooperated with the government, that “Petitioner was not a government cooperator” and he “did not assist the government.”  IG Ex. 6 at 30. 

Finally, to the extent Petitioner argues that he “intends to request the issuance of subpoenas” related to any investigations arising from his proffer session,7 he did not file a motion for the issuance of a subpoena to compel the appearance of any witness or production of any documents.  At the outset of this case, I informed the parties that all direct testimony must be submitted in writing with the pre-hearing exchange, and that “[i]f a party is unable to provide the written direct testimony of an essential witness, it must state why it is unable to provide that testimony and must also address the expected testimony of such as witness.”  Pre-Hearing Order § 8.  Although Petitioner would like to go on a “fishing expedition” to develop evidence he believes “may” exist showing that he both cooperated and that such cooperation produced an enumerated result, the simple fact is that Petitioner “did not assist the government.”  IG Ex. 6 at 30.  Petitioner has the burden of persuasion with respect to mitigating factors, and he has not come remotely close to meeting this burden.  42 C.F.R. § 1005.15(c).

In the absence of any argument or evidence demonstrating that the lengthening of the minimum period of exclusion to 15 years based in the presence of three aggravating factors is unreasonable, I conclude that the imposition of a minimum period of exclusion for 15 years is reasonable.  42 C.F.R. § 1001.2007(a).  Petitioner has not demonstrated the presence of any mitigating factors.  Rather, the evidence indicates that Petitioner did not cooperate with the government.  

3. The effective date of Petitioner’s exclusion is January 20, 2021. 

The effective date of the exclusion, January 20, 2021, is 20 days after the date of the IG’s December 31, 2020 letter and is established by regulation.  See 42 C.F.R. § 1001.2002(b).  I am bound by that regulation.  42 C.F.R. § 1005.4(c)(1).

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V. Conclusion

For the foregoing reasons, a 15-year exclusion from participation in Medicare, Medicaid, and all other federal health care programs, effective January 20, 2021, is reasonable.

1. My findings of fact and conclusions of law are set forth in italics and bold font.
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2. While there are slight differences in the wording of Section 1128 of the Act and its codification at 42 U.S.C. § 1320a-7, the two authorities are substantively identical and I refer to them interchangeably. I further note that the Secretary of the Department of Health and Human Services (Secretary) has delegated to the IG the authority “to suspend or exclude certain health care practitioners and providers of health care services from participation in these programs.” 48 Fed. Reg. 21662 (May 13, 1983); see also 42 C.F.R. § 1005.1.
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3. Petitioner acknowledged that the Medicare program sustained approximately $523,600 in losses due to his criminal scheme, but he admitted guilt to a single count involving the loss of $87.25 to the program on July 2, 2015. IG Ex. 3 at 3. Petitioner’s offense, which was punishable by up to 12 months of incarceration, is a Class A misdemeanor. See IG Ex. 3 at 4; 18 U.S.C. § 3559(a)(6).
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4. I do not provide pinpoint citations because Petitioner did not paginate his brief.
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5. This statement is erroneous; Petitioner pleaded guilty on August 22, 2019, approximately nine months after the proffer session. See IG Ex. 3 at 1, 16; 6 at 6.
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6. The United States argued that a sentencing enhancement for “obstruction of justice” was warranted because Petitioner “obstructed or impeded the administration of justice during the investigation of his health care fraud offenses” when he “directed the production of . . . fake CPO logs to the government in response to [a Civil Investigation Demand].” IG Ex. 4 at 7.
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7. Petitioner cited 42 C.F.R. § 498.58(c)(3) in support of his argument. That provision is inapplicable to these proceedings.
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