Ubah Abdulaziz Jumale, DAB CR6507 (2024)

DECISION

Petitioner, Ubah Abdulaziz Jumale, was an interpreter at a Minnesota clinic that provided counseling services to Medicaid beneficiaries and others.  She worked with a group of drivers and interpreters to coordinate services at the clinic.  In that capacity, she instructed the drivers and interpreters to portray, fraudulently, the services they provided in order to maximize the clinic’s Medicaid reimbursement.  She also fraudulently portrayed her own services in order to maximize Medicaid reimbursement.

Following an investigation by the state’s Medicaid Fraud Control Unit, Petitioner was charged with nine felony counts of theft of public funds by false representation and with aiding and abetting theft of public funds by false representation, in violation of Minn. Stat. §§ 609.52.2 and 609.52.3.  The indictment charged that she and her group of Medicaid recipients, interpreters, and drivers defrauded the Medicaid program out of $50,743.64.  Petitioner ultimately pleaded guilty to an amended charge of theft by false representation, a “gross misdemeanor.”

Based on her conviction, the Inspector General (IG) has excluded Petitioner for five years from participating in Medicare, Medicaid, and all federal health care programs, as

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authorized by section 1128(a)(1) of the Social Security Act (Act).  Petitioner appeals the exclusion.  For the reasons discussed below, I find that the IG properly excluded her.  Because the statute mandates a minimum five-year exclusion, the length of her exclusion is, by law, reasonable.

Background

In a letter dated February 29, 2024, the IG notified Petitioner that she was excluded from participating in Medicare, Medicaid, and all federal health care programs for a period of five years because she had been convicted of a criminal offense related to the delivery of an item or service under Medicare or a state health care program.  The letter explained that section 1128(a)(1) of the Act authorizes the exclusion.  IG Ex. 1.

Petitioner timely requested review, and the case has been assigned to me.

Submissions.  The IG submitted a written brief (IG Br.) and four exhibits (IG Exs. 1-4).  Petitioner responded with her own brief (P. Br.).  The IG did not reply.  In the absence of any objections, I admit into evidence IG Exs. 1-4.

Hearing on the written record.  The parties agree that an in-person hearing is not necessary and that this case may be decided based on the written record.  IG Br. at 4; P. Br. at 2.

Discussion

1. Petitioner must be excluded from program participation for a minimum of five years because she was convicted of a criminal offense related to the delivery of items or services under a state health care program.  Act § 1128(a)(1).¹

Under section 1128(a)(1) of the Act, the Secretary of Health and Human Services must exclude an individual who has been convicted under federal or state law of a criminal offense related to the delivery of an item or service under Medicare or a state health care program.  42 C.F.R. § 1001.101(a).

The scheme.  Petitioner worked as an interpreter for a Minnesota clinic that was owned and operated by Jonathan Howard Newcomb, a licensed marriage and family therapist.  The clinic provided counseling services to Medicaid beneficiaries and others.  Many of the clinic patients did not speak the same language as the therapist and required interpreters.  Many also required transportation.  When provided at a qualified medical

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appointment, both interpreter and transportation services are eligible for Medicaid reimbursement.  IG Ex. 4 at 6.

Petitioner Jumale was an interpreter at Newcomb Counseling.  She also brought in Medicaid recipients as clients and coordinated services provided by certain drivers and other interpreters.  IG Ex. 4 at 5-7.  According to the indictment, Newcomb Counseling engaged in multiple fraudulent schemes.  For her part, Petitioner Jumale and two others “engaged in a coordinated effort to defraud the Medicaid program of hundreds of thousands of dollars of additional funds through fraudulent billing for transportation and interpreter services to and at Newcomb Counseling.”  IG Ex. 4 at 8.

Petitioner was charged with nine felony counts of theft of public funds by false representation and aiding and abetting theft of public funds by false representation, in violation of Minn. Stat. §§ 609.52.2 and 609.52.3.  IG Ex. 4 at 1-5, 23-26.

On May 18, 2023, Petitioner Jumale pleaded guilty to an amended charge of theft by false representation, a gross misdemeanor, in violation of Minn. Stat. §§ 609.52.2(a)(3), 609.05.1, and 609.52.3.  IG Ex. 2 at 1.²  On May 22, 2023, the Minnesota District Court for the 10th Judicial District accepted her plea, finding her guilty of “Aiding and Abetting Theft by False Representation (Public Funds).”  IG Ex. 3 at 1 (emphasis added).  The court placed her on supervised probation for two years, ordered her to perform 50 hours of community service, and ordered her to pay $15,602.00 in restitution.  She was not allowed to work as a Medicaid provider while on probation.  IG Ex. 2 at 2.

Petitioner’s defenses.  Petitioner, however, maintains that the IG has not met her burden of establishing that Petitioner’s conviction was related to the delivery of an item or service under Medicare or a state health care program.  According to Petitioner, the “facts admitted in the Plea Petition are materially different from the facts claimed by the [IG].”  P. Br. at 2.  This is plainly not so.  An abundance of evidence, including Petitioner’s own admission, establishes that Petitioner’s crime was related to a state health care program:

• Although the level of the offense was lowered from a felony to a gross misdemeanor, Petitioner pleaded guilty to Count V of the indictment.  Count V alleged that she “conspired with the interpreters, drivers, and Jonathan Newcomb to complete logs that falsely stated the services provided in order to maximize reimbursement, and[,] as a result of the fraudulent representations, the Medicaid program overpaid $660.00 in public funds for interpreter services at Newcomb Counseling.”  IG Ex. 4 at 3 (emphasis added).

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• In pleading guilty, Petitioner admitted that she “aided and abetted Jonathan Newcomb in submitting claims to translations agencies under contract with United Health Care for reimbursement for translation services provided to a recipient of medical assistance under Chapter 256B.”  She also admitted that, as a result of her fraud, she received $660.00 (the same amount that Count V alleged Medicaid overpaid) to which she was not entitled.  IG Ex. 2 at 1 (emphasis added).

  United Health Care is a managed care program that provides services to Medicaid beneficiaries; it receives payments for those services from the State Medicaid Program.  IG Ex. 4 at 9; see Minn. Stat. § 256B.035.  “Chapter 256B,” titled “Medical Assistance for Needy Persons,” is Minnesota’s Medicaid statute.

• The criminal complaint was based on the results of an investigation conducted by an investigator with the Medicaid Fraud Control Unit of the Minnesota Attorney General’s office.  As the investigator explained in her accompanying affidavit, “I investigate fraud committed by health care providers enrolled in the Minnesota Medical Assistance (Medicaid) program.”  In that capacity, she “investigated a network of therapists, interpreters, transportation providers, and other associated individuals who engaged in a years-long, wide[-]scale scheme to defraud the Medicaid program of over $1 million.”  The investigator included Petitioner Jumale in her list of the “leaders of the network.”  IG Ex. 4 at 6.

Finally, Petitioner points out that she was convicted of a misdemeanor, not a felony and argues that “42 C.F.R. § 1011.101(c)(1)” [sic] allows the IG to “impose an exclusion when the conviction is a felony.”  P. Br. at 3.  The citation is incorrect – section 1001.101 is the correct citation.  In any event, section 1001.101(c) does not apply to program-related crimes.

The statute and the regulations distinguish between felony and misdemeanor offenses “only for fraud committed in connection with the delivery of a health care item or service other than Medicare or a state health care program.”  Lorna Fay Gardner, DAB No. 1733 at 5-6 (2000) (emphasis in original).  Under section 1128(a)(1), any criminal conviction – whether a felony or a misdemeanor – constitutes a criminal offense.  “Nothing in the language of section 1128(a)(1) requires Petitioner’s conviction to be for a felony rather than a misdemeanor.”  Craig Richard Wilder, DAB No. 2416 at 6-7 (2011); see Dr. Timothy Baxter, DAB No. 3074 at 26 (2022).

Petitioner’s gratuitous assertion that somehow section 1001.101(c) “must be read to override the general language of [section] 1011.101(a) [sic]” is simply wrong.  Reflecting the requirements of the statute, section 1001.101 lists four circumstances that compel an exclusion.  The circumstances listed are joined by the conjunction “or.”  This shows that, under any one of these differing circumstances, the IG must exclude.  Contrary to Petitioner’s unsupported argument, no single circumstance “subsumes” any of the others.

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Petitioner was convicted of a program-related crime and must be excluded.  An exclusion brought under section 1128(a)(1) must be for a minimum period of five years.  Act § 1128(c)(3)(B); 42 C.F.R. § 1001.2007(a)(2).

Conclusion

For these reasons, I conclude that the IG properly excluded Petitioner from participation in Medicare, Medicaid and all federal health care programs, and I sustain the five-year exclusion.

Endnotes

¹ I make this one finding of fact/conclusion of law.  

² Under Minnesota law, a “gross misdemeanor” carries a maximum sentence of 364 days jail time and a $3,000 fine.  Minn. Stat. § 609.0341.1.