Elifaa Henry Kinyaiya, CR6479 (2024)

DECISION

The Inspector General (IG) of the United States Department of Health and Human Services excluded Petitioner, Elifaa Henry Kinyaiya, 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 or a state health care program.  For the reasons discussed below, I conclude that the IG has a basis for excluding Petitioner because he has a federal conviction for conspiracy to commit wire fraud, with the victim of his crime being the Minnesota Medicaid program.  The IG has proven three aggravating factors, and no mitigating factors are present.  A nine-year exclusion, effective February 20, 2024, is not unreasonable.

I.  Background

In a letter dated January 31, 2024, 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 nine 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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The OIG is imposing this exclusion under section 1128(a)(1) of the Act, due to your conviction (as defined in section 1128(i) of the Act), in the United States District Court, District of Minnesota, 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 9 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 nine years based on the presence of the following three aggravating factors:  1) The acts resulting in the conviction, or similar acts, caused, or were intended to cause, a financial loss to a government program or to one or more entities of $50,000 or more, with approximately $213,600 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 “about September 2016 to about December 2017”; and, 3) The sentence imposed by the court included incarceration, specifically, “one year and one day of incarceration.”  IG Ex. 1 at 1; 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 February 9, 2024.  Thereafter, the Civil Remedies Division issued my standing pre‑hearing order.  On February 29, 2024, I presided over a telephonic pre-hearing conference and issued an order summarizing the conference.

The IG, through counsel, filed a brief and four proposed exhibits (IG Exs. 1-4), along with a reply.  Petitioner, who is pro se, filed a short-form brief with a supplemental informal brief (P. Br.) and what he identified in his list of exhibits as five proposed exhibits.  Petitioner’s informal brief was filed as P. Ex. 1; although I have reviewed Petitioner’s informal brief, I do not admit this brief an evidentiary exhibit.  P. Ex. 2, identified as “vouching letters,” are submissions akin to character statements that would be submitted to a judge at the time of sentencing.  None of the letters offer relevant or material information with respect to the imposition of an exclusion or any regulatory aggravating or mitigating factor.  P. Ex. 3 is described as a “picture” from Petitioner’s “first social services job 1998” and similarly lacks any evidentiary value with respect to the basis for the exclusion or the length of the exclusion.  P. Ex. 4, which Petitioner identifies as a copy of his 2016 and 2017 tax returns, was also submitted as an enclosure to Petitioner’s request for hearing.  The amount of loss is established by the District Court’s order of restitution (IG Ex. 4 at 6), and the amount Petitioner reported in taxable income, assuming the veracity of that information, is irrelevant and immaterial to the basis for the exclusion and the length of the exclusion.  And although Petitioner

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references P. Ex. 5, which he describes as the prosecutor’s request for probation, such a request is irrelevant and immaterial with respect to my review of the length of the exclusion, inasmuch as Petitioner was, in fact, sentenced to incarceration.  Because P. Exs. 1-5 are not evidence and/or lack any evidentiary value, I do not admit P. Exs. 1-5 into the evidentiary record.  See 42 C.F.R. § 1005.17(c) (“The ALJ must exclude irrelevant or immaterial evidence.”).  I admit IG Exs. 1-4 into the evidentiary record.

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 Standing Pre-Hearing Order § 14.  An in-person hearing for the purpose of cross-examination of witnesses is therefore unnecessary.  See Standing Pre-Hearing Order §§ 15, 16.  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 Minnesota Medicaid program, which subjects him to a mandatory exclusion from all federal health care programs for a minimum period of five years.

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

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(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 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.

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.

Petitioner is one of nine co-defendants charged by indictment filed on March 11, 2021, with all participating “in a scheme with others known and unknown to the Grand Jury to defraud the Medicaid program.”  IG Ex. 2 at 1.  The indictment summarized the scheme, as follows:

The scheme involved mental health practitioners submitting fraudulent claims for mental health services purportedly provided to Medicaid recipients through the Adult Rehabilitative Mental Health Services program.  The scheme also involved interpreters submitting fraudulent claims through their respective employers for interpretation services purportedly provided to Medicaid recipients during the mental health appointments.  Neither the mental health services nor the ancillary interpretation services were rendered.  For nearly 16 months, however, [Petitioner and his co-defendants] defrauded the Medicaid program by submitting claims for reimbursement and receiving payment for services not rendered to Medicaid beneficiaries.

IG Ex. 2 at 1-2.  Count One charged that all nine co-defendants, to include Petitioner, “did knowingly and willfully conspire, combine, and agree with each other and with other persons known and unknown to the Grand Jury, to commit the crime of wire fraud, in violation of Title 18, United States Code, Section 1343.  All in violation of Title 18, United States Code, Section 1349.”  IG Ex. 2 at 10-11.  Additionally, Counts 2 and 4 charged Petitioner, as an individual, with the commission of wire fraud, “in violation of Title 18, United States Code, Sections 1343 and 2.”  IG Ex. 2 at 11-13.

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On January 18, 2022, Petitioner, with the benefit of counsel, entered into a plea agreement and sentencing stipulation in which he admitted guilt to the conspiracy charged in Count One of the indictment, with the United States agreeing to dismiss Counts 2 and 4.  IG Ex. 3.  Petitioner acknowledged that he “is pleading guilty because he is in fact guilty of Count One of the indictment.”  IG Ex. 3 at 1.  Petitioner admitted that “from at least in or about September 2016 through in or about December 2017 [he] worked as a mental health practitioner” and “billed the Minnesota Medicaid program for mental health services that he purportedly provided in the State of Minnesota” to clients of a company.  IG Ex. 3 at 1-2.  Petitioner admitted that he “agreed with his co‑conspirators . . . to bill the Minnesota Medicaid program for mental health services and related interpretation services that were not actually rendered to Medicaid beneficiaries.”  IG Ex. 3 at 2.  Petitioner also admitted that he “prepared and signed falsified client progress notes for mental health services that he did not provide” and “submitted and caused to be submitted to the Minnesota Medicaid program claims for mental health services that he did not provide.”  IG Ex. 3 at 3.  Petitioner further admitted that “[t]he claims for reimbursement for mental health services that [he] submitted were false and fraudulent because [he] did not actually render the billed mental health services.”  IG Ex. 3 at 3.  Petitioner acknowledged that conspiracy to commit wire fraud is a felony offense that carries a maximum sentence of “20 years in prison.”  IG Ex. 3 at 5; see 18 U.S.C. § 3559(a)(3) (classifying an offense punishable by a 20-year term of imprisonment as a Class C felony).  Petitioner also agreed that “the offense level should be increased by 12 levels because the offense involved a loss of more than $250,000.”  IG Ex. 3 at 6.  Petitioner “agree[d] that he owes restitution and agree[d] that the Court shall order him to pay restitution in the amount of $213,666 to the Minnesota Medicaid program.”  IG Ex. 3 at 8-9.  The United States agreed not to appeal a sentence of more than 21 months of imprisonment, and Petitioner agreed he would not appeal a sentence of less than 27 months of imprisonment.  IG Ex. 3 at 9-10.

On March 8, 2023, a District Judge imposed judgment based on Petitioner’s guilty plea and sentenced him to a one year and one day term of incarceration.  IG Ex. 4 at 1-2.  The District Judge also ordered that Petitioner pay $213,666 in restitution to the Minnesota Medicaid program, with reduced payments during his incarceration and monthly payments of at least $25 during the three-year period immediately following his release from incarceration.  IG Ex. 4 at 6-7.

Petitioner does not dispute that his conviction is for a criminal offense relating to the delivery of an item or service under Medicare or a state health care 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 conspiracy to commit wire fraud, and was ordered to serve one year and one day of incarceration and pay $213,666 in restitution to the victim of the crime, the Minnesota Medicaid program.  IG

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Ex. 4 at 1, 2, 6; 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 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 conspiracy to commit wire fraud, and the victim of the conspiracy was the Minnesota Medicaid program.  Petitioner’s offense therefore relates to the delivery of a health care item or service under a state health care program.  Petitioner’s exclusion is mandated for a minimum period of five years based on section 1128(a)(1).

2. A nine-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 nine years based on the presence of three aggravating factors.  IG Ex. 1 at 1.  The IG bears the 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.  P. Br.  Nor does Petitioner dispute that a lengthening of the minimum period of exclusion is reasonable based on the IG’s consideration of the three aggravating factors.  P. Br.  Rather, Petitioner broadly argues, without reliance on any of the enumerated factors, that his exclusion should be of a shorter duration.  P. Br.  As I explain below, a nine-year exclusion is reasonable based on the presence of three aggravating, and no mitigating, factors.

The first aggravating factor is that the acts resulting in Petitioner’s conviction, or similar acts, caused or were intended to cause, financial loss to a government agency, program or other entity of $50,000 or more, as evidenced by the sentencing order requiring that Petitioner pay $213,666 in restitution to the Minnesota Medicaid program.  IG Ex. 1 at 1; see IG Ex. 4 at 6; 42 C.F.R. § 1001.102(b)(1).  The $213,666 loss to the Minnesota Medicaid program was more than four times the $50,000 threshold for application of this

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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 Exs. 2 at 2 (indictment charging that “[f]or nearly 16 months, [Petitioner and his co-defendants] defrauded the Medicaid program by submitting claims for reimbursement and receiving payment for services not rendered to Medicaid beneficiaries.”); 3 at 1 (acknowledging participation in the conspiracy from on or about September 2016 through on or about December 2017).  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 by the District Court included incarceration, specifically one year and one day of incarceration.  IG Ex. 1 at 1; see IG Ex. 4 at 2; 42 C.F.R. § 1001.102(b)(5).  Because Petitioner was 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 specifically dispute that the IG had a reasonable basis to lengthen the minimum period of exclusion by four years based on these three aggravating factors.  P. Br.  In sum, the three aggravating factors are significant, and it was not unreasonable for the IG to lengthen Petitioner’s exclusion by four years based on the consideration of the three aggravating factors outlined above.

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).  I cannot consider evidence of mitigation unless it offsets the lengthening of a period of exclusion due to one or more of the enumerated aggravating factors listed in 42 C.F.R. § 1001.102(b).  42 C.F.R. § 1001.102(c).  Petitioner has not identified a factor that warrants mitigation of an exclusion pursuant to 42 C.F.R. § 1001.102(c).  Rather, Petitioner seeks a reduction in the length of the exclusion based on the following reasons:  He has been paying monthly restitution at a rate of $25 “without missing a payment”; demonstrated his “commitment to compliance and ethical practices” when applying for employment; had his “professional reputation and livelihood” severely affected by the exclusion; filed taxes for wages in 2016 and 2017 that were lower than the amount of court-ordered restitution; accepted responsibility for his criminal conduct; and believed he was jointly and severally liable for the $213,666 in court-ordered restitution.  P. Br.

In a template short-form brief I provided to Petitioner, I asked Petitioner whether he believed the period of exclusion should be reduced based on the presence of one or more

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mitigating factors listed in 42 C.F.R. § 1001.102(c).  I explained the mitigating factors as follows:

If financial loss was involved, you were convicted of three or fewer misdemeanor offenses and the entire amount of the financial loss (both actual and reasonably expected loss) to a government agency or program or to other individuals or entities due to the acts that resulted in the conviction and similar acts is less than $5,000.

The record of the criminal proceedings, including sentencing documents, demonstrates that you had a mental, emotional, or physical condition, before or during the commission of the offense, that reduced your culpability; or,

You cooperated with federal or state officials and your cooperation resulted in:

Others being convicted or excluded from Medicare, Medicaid, and all other federal health care programs;

Additional cases being investigated or reports issued by the appropriate law enforcement agency identifying program vulnerabilities or weaknesses; or

The imposition of a civil monetary penalty against others.

Petitioner has not identified any of the mitigating factors enumerated in 42 C.F.R. § 1001.102(c).  To the extent Petitioner argues he has timely made the required restitution payments, he is required to do so by court order; compliance with the District Court’s sentencing order is not an enumerated mitigating factor.  Likewise, Petitioner entered into a plea agreement in which he individually agreed to pay $213,666 in restitution.³  IG Ex. 3 at 8-9.  Similarly, Petitioner’s claim that he filed taxes for less income in 2016 and 2017 than he owes in restitution is irrelevant and immaterial; the simple fact is that

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Petitioner agreed that he would pay $213,666 in restitution to the victim of his crime, the Minnesota Medicaid program, and the court ordered him to pay that amount in restitution.  IG Exs. 3 at 8-9; 4 at 6.

To the extent Petitioner claims that he demonstrates a “commitment to compliance and ethical practices” when seeking employment, he has not identified a regulatory mitigating factor, but rather, a worthy aspiration for anyone who is seeking employment.  See P. Br. Likewise, Petitioner’s claim that his exclusion has negatively impacted his professional reputation does not reference a regulatory mitigating factor, and any harm to his professional reputation is directly attributable to his felonious conduct, rather than the exclusion imposed by the IG.  Finally, Petitioner’s acceptance of responsibility for his criminal conduct is not an enumerated mitigating factor.  Instead, acceptance of responsibility is an appropriate sentencing consideration.  See IG Ex. 3 at 6 (referencing a 2-level Guidelines Range reduction for acceptance of responsibility).

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

3. The effective date of Petitioner’s exclusion is February 20, 2024.

The effective date of the exclusion, February 20, 2024, is 20 days after the date of the IG’s January 31, 2024 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).

V.  Conclusion

For the foregoing reasons, a nine-year exclusion from participation in Medicare, Medicaid, and all other federal health care programs, effective February 20, 2024, is not unreasonable.

Endnotes

¹  My findings of fact and conclusions of law are set forth in italics and bold font.

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. 21,662 (May 13, 1983); see also 42 C.F.R. § 1005.1.

³  I note that the sentencing order lacks any reference to joint and several liability by multiple co-defendants for the payment of the $213,666 in restitution.  Regardless, an order of joint and several liability would have no bearing on my consideration of Petitioner’s argument, as the amount of loss from the conspiracy to commit wire fraud to which Petitioner pleaded guilty is the relevant question with respect to aggravating and mitigating factors.  See 42 C.F.R. § 1001.102(b)(1) (addressing “financial loss to a government agency or program” as a basis for aggravation) and 1001.102(c)(1) (addressing financial loss as a factor only when the individual has been convicted of three or fewer misdemeanors and the financial loss is less than $5,000).