Mahmoud Elmiari, DAB CR6123 (2022)

DECISION

Respondent, the Inspector General of the United States Department of Health and Human Services (IG), excluded Petitioner, Mahmoud Elmiari (Petitioner), for five years from participation in Medicare, Medicaid, and all federal health care programs pursuant to section 1128(a)(3) of the Social Security Act (Act).  As explained below, I conclude the IG properly excluded Petitioner under section 1128(a)(3) of the Act.  I affirm both the IG’s exclusion determination and the length of Petitioner’s exclusion. 

I.     Case Background and Procedural History

On January 31, 2022, 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)(3) for a period of five years.  IG Exhibit (Ex.) 1.¹  The IG based its exclusion action on Petitioner’s felony conviction of a criminal offense in the United States District Court for the Southern District of Ohio (District Court) “related to fraud, theft, embezzlement, breach of fiduciary responsibility, or other financial misconduct in connection with the delivery of a health care item or service, or with respect to any act or omission in a health

Page 2

care program (other than Medicare and a State health care program) operated by, or financed in whole or in part, by any Federal, State, or local government agency.”  Id. 

Petitioner timely sought review of his exclusion by an Administrative Law Judge (ALJ) in the Civil Remedies Division and I was designated to hear and decide this case.  On April 6, 2022, I held a pre-hearing conference by telephone with Petitioner and counsel for the IG, the substance of which is summarized in my April 8, 2022 Order Summarizing Pre-hearing Conference (Summary Order). 

In accordance with my Summary Order, the IG filed a brief (IG Br.) with four proposed exhibits (IG Exs. 1-4).  Petitioner filed a brief (P. Br.) with a letter addressed to me as his only exhibit (P. Ex. 1).  The IG waived her opportunity to file a reply brief. 

II.     Admission of Exhibits and Decision on the Record

Neither party objected to the other party’s exhibits.  I therefore admit all proposed exhibits into the record.  42 C.F.R. § 1005.8(c); Civ. Remedies Div. P. § 14(e). 

The IG proposed no witnesses and indicated she did not believe a hearing to be necessary.  IG Br. at 7.  Petitioner indicated he believed a hearing to be necessary.  P. Br. at 2.  He identified one witness, Abel Ngoh, a pharmacist Petitioner claimed would bolster his position that he should not be excluded because he was a business manager who did not deliver health care services.  Id. at 2, 3.  However, Petitioner did not include written direct testimony from Dr. Ngoh as an exhibit to his Brief.  P. Br. at 2. 

I advised the parties in my Summary Order that I would only hold a hearing if a party requested to cross-examine a witness for whom the opposing party provided written direct testimony.  Order ¶ 9; Civ. Remedies Div. P. § 19(d).  However, as Petitioner represents himself in this matter, I will not deny his request to produce a witness solely on that procedural basis.  Instead, I note that, as described by Petitioner, Dr. Ngoh’s testimony is duplicative of Petitioner’s own assertions and, even if true, are ultimately irrelevant to the outcome in this matter.  P. Br. at 2, 3.  Therefore, I do not find it necessary to hear Dr. Ngoh’s testimony for me to reach a decision in this matter. 

Neither party has provided written direct testimony for whom the opposing party requested cross-examination.  Nor has either party otherwise identified a witness whose testimony is necessary for me to render a decision.  I therefore proceed to a decision based on the record before me, namely the parties’ briefs and exhibits of record.  Civ. Remedies Div. P. § 19(d).

III.     Issue

Whether the IG properly excluded Petitioner under 42 U.S.C. § 1320a-7(a)(3).

Page 3

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 Analysis

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

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

There is no dispute that Petitioner timely requested a hearing.  I therefore have jurisdiction to hear and decide this case.  See 42 C.F.R. §§ 1001.2007(a)(1)-(2), 1005.2(a); see also 42 U.S.C. § 1320a-7(f)(1).

B. There is a basis for Petitioner’s exclusion pursuant to section 1128(a)(3) of the Act.

Exclusion from participation in Medicare, Medicaid, and all federal health care programs is mandated by section 1128(a)(3) of the Act where an individual has been convicted, under Federal or State law, of a criminal offense that occurred after August 21, 1996, consisting of a felony relating to fraud, theft, embezzlement, breach of fiduciary responsibility, or other financial misconduct that was committed in connection with the delivery of a health care item or service.  42 U.S.C. § 1320a-7(a)(3); 42 C.F.R. § 1001.101(c)(1).  The IG has established these elements by a preponderance of the evidence. 

1. Petitioner was convicted under federal or state law of a criminal offense that occurred after August 21, 1996. 

The Act provides an individual has been “convicted” if subject to “a finding of guilt . . . [or] when a plea of guilty or nolo contendere by the individual . . . has been accepted by a Federal, State, or local court.”  42 U.S.C. § 1320a-7(i)(2), (3).  Here, Petitioner was charged via indictment on April 9, 2019 in the U.S. District Court for the Southern District of Ohio with one count of felony conspiracy of obtaining controlled substances by misrepresentation, fraud, forgery, deception, or subterfuge.  IG Ex. 2; 21 U.S.C. § 846; 21 U.S.C. § 843(a)(3).  The government alleged Petitioner’s offense of conviction began on or about January 1, 2012.  IG Ex. 2 at 10.  On January 21, 2020, Petitioner pleaded guilty to the aforementioned charge.  IG Ex. 4.  Petitioner does not dispute he was convicted of a felony committed after August 21, 1996.  P. Br. at 1.  I conclude Petitioner was convicted of a criminal offense after August 21, 1996.

Page 4

2. Petitioner’s offenses of conviction were felonies related to fraud, theft, embezzlement, breach of fiduciary responsibility, or other financial misconduct. 

Section 1128(a)(3) of the Act requires the exclusion of individuals subject to felony convictions related to “fraud, theft, embezzlement, breach of fiduciary responsibility or other financial misconduct.”  42 U.S.C. § 1320a7(a)(3).  The term “related to” simply means that there must be a nexus or common-sense connection.  See Quayum v. U.S. Dep’t of Health & Human Servs., 34 F. Supp. 2d 141, 143 (E.D.N.Y. 1998); see also Friedman v. Sebelius, 686 F.3d 813, 820 (D.C. Cir. 2012) (describing the phrase “related to” in another part of section 1320a-7 as “deliberately expansive words,” “the ordinary meaning of [which] is a broad one,” and one that is not subject to “crabbed and formalistic interpretation”) (internal quotation marks omitted).  

Here, there is no serious dispute as to whether Petitioner’s offense of conviction was related to fraud as he pleaded guilty to conspiring to acquire or obtain “possession of a controlled substance by misrepresentation, fraud, forgery, deception, or subterfuge,”in violation of 18 U.S.C. § 1344(a)(3). IG Ex. 2 at 10; IG Ex. 4 at 1.  Petitioner’s offense of conviction relates to fraud on its face.  

Even looking past the plain language of the charged offense to which Petitioner pleaded, there is little reason to doubt the nexus between his offense of conviction and the statutory basis for exclusion.  As outlined in the indictment against him, Petitioner used his position as manager of Dayton Pharmacy to open bank accounts to “fund aspects of the conspiracy.”  IG Ex. 2 at 12.  He made false statements to a pharmaceutical supplier to induce that supplier to provide controlled substances to Dayton Pharmacy.  Id. at 13.  Opening bank accounts to further criminal conspiracies and making false statements to induce sales falls well within the meaning of fraud and financial misconduct.  I have no difficulty concluding Petitioner’s offenses of conviction related to “fraud, theft, embezzlement, breach of fiduciary responsibility or other financial misconduct,” as that phrase is contemplated in 42 U.S.C. § 1320a-7(a)(3). 

3. Petitioner’s conviction was for a felony relating to fraud that was committed in connection with the delivery of a healthcare item or service. 

The IG asserts Petitioner’s offense of conviction was committed in connection with the delivery of a healthcare item or service because he acted in his capacity as a pharmacy manager to open bank accounts and fund aspects of the conspiracy to which he pleaded guilty.  IG Br. at 4-5, citing IG Exs. 2, 3.  Petitioner argues his conviction does not trigger exclusion under Section 1128(a)(3) of the Act because he acted solely as a business manager for Dayton Pharmacy and had no role in the delivery, prescription or dispensing of prescription medications.  P Br. at 2.  Petitioner explains that he never filed forms or

Page 5

contracts with medication suppliers, insurance companies or the Medicare or Medicaid programs.  Id.  In other words, Petitioner contends his conviction could not fall within the meaning of Section 1128(a)(3) because he did not deliver healthcare items or services.  

But the scope of Section 1128(a)(3) of the Act is not so narrow.  Its plain language requires exclusion of an individual who has been “convicted for an offense which occurred . . . in connection with the delivery of a health care item or service . . . .”  42 U.S.C. § 1320a-7(a)(3).  The Board has interpreted the phrase “in connection with” to require only a “common sense connection” between the circumstances of the offense and the delivery of a health care item or service.  W. Scott Harkonen, M.D.,DAB No. 2485 at 7 (2012) (citing Ellen L. Morand, DAB No. 2436 at 9 (2012); Charice D. Curtis, DAB No. 2430 at 5 (2011)). 

Moreover, the Board has expressly rejected Petitioner’s contention that his criminal offense must have involved the actual delivery of a health care item or service.  See Kenneth M. Behr, DAB No. 1997 at 8 (2005); see also James O. Booth, DAB No. 2530 (2013) (finding an individual whose role was limited to operations and sales, like Petitioner, was properly excluded based on his criminal conviction under the analogous provision of Section 1128(a)(1) of the Act). 

Rather than limiting the scope of my analysis to Petitioner’s job title and lack of medical credentialing, I instead consider whether his offense of conviction bore a common-sense connection to the delivery of a health care item or service.  Here, I find the elements and nature of Petitioner’s felony conviction more than sufficient to do so.  Petitioner pleaded to conspiring to acquire or obtain “possession of a controlled substance by misrepresentation, fraud, forgery, deception, or subterfuge.”  IG Ex. 2 at 10-11; IG Ex. 4 at 1.  Petitioner also admitted in the plea agreement by which he resolved the criminal case against him² that he made false statements to suppliers of controlled substances to induce them to supply Dayton Pharmacy.  IG Ex. 2 at 13. 

Because these ill-gotten controlled substances were subsequently supplied to customers of Dayton Pharmacy, Petitioner’s efforts to fraudulently assist his co-conspirators to obtain controlled substances they subsequently prescribed have an obvious connection to

Page 6

the delivery of a health care item or service.  I therefore conclude Petitioner’s felony offense of conviction was in connection with the delivery of a healthcare item or service. 

4. Petitioner’s remaining arguments provide no basis for relief.  

Petitioner sets forth several equitable arguments that he believes warrants overturning his exclusion.  P. Ex. 1 at 1.  I am sympathetic to Petitioner’s plight and difficulty obtaining further work in the field of his education.  However, I have no authority to overturn his exclusion based on equitable considerations.  Matthew J. Girardy, DMD, DAB No. 2987 at 7 (2020) (citation omitted). 

Petitioner next questions the effective date of his exclusion, complaining the IG waited two years after his conviction to take action.  P. Ex. 1 at 2.  I am again sympathetic to Petitioner’s concern but do not have the authority to modify his period of exclusion, whatever the reason for the IG’s delay.  Shaikh M. Hasan, M.D., DAB No. 2648 at 8 (2015). 

Finally, to the extent that Petitioner argues he pleaded guilty without being made aware of the possibility of exclusion or did not commit the acts to which he pleaded guilty, he may not collaterally attack his conviction before me in these proceedings.  P. Ex. 1 at 1; 42 C.F.R. § 1001.2007(d). 

5. Petitioner must be excluded for a minimum of five years; the period of exclusion is therefore reasonable as a matter of law. 

Because I have concluded that the IG had a reasonable basis to exclude Petitioner under 42 U.S.C. § 1320a-7(a)(3), Petitioner must be excluded for a minimum period of five years.  42 U.S.C. § 1320a-7(c)(3)(B); 42 C.F.R. §§ 1001.102(a), 1001.2007(a)(2).  The IG has no discretion to impose a lesser period of exclusion, and I may not reduce the period of exclusion below five years. 

VI.     Conclusion

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

Endnotes

¹  Document 5a in the official case file maintained in the DAB E-file system; for clarity and simplicity, I cite to the exhibits attached by the parties to their respective briefs by the exhibit numbers indicated by the parties, not the document numbers assigned by DAB E-file.

²  The records submitted by the IG indicate Petitioner entered into a plea agreement read into the record in open court by the prosecutor at his change of plea hearing, rather than signing a plea agreement with his attorney that would have been made part of the record, as is more customary in federal criminal proceedings.  IG Ex. 4 at 1.  Actual admissions made by a petitioner to resolve a criminal case are far more useful to my review than charges made by the government in an indictment, which may or may not relate to the actual offense of conviction.  However, because Petitioner pleaded guilty to Count 8 of the indictment, conspiracy to obtain controlled substances by misrepresentation, fraud, forgery, deception, or subterfuge, it is reasonable to conclude the facts set forth by the government concerning that count in the indictment form the factual basis for Petitioner’s plea agreement and conviction.  IG Ex. 2 at 10-11; IG Ex. 4 at 1.