Oluwatobi Alabi Yerokun, MD, DAB CR6516 (2024)

DECISION

The Inspector General (IG) of the United States Department of Health and Human Services excluded Petitioner, Oluwatobi Alabi Yerokun, MD, from participation in Medicare, Medicaid, and all other federal health care programs based on his conviction of a criminal offense 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 was convicted of conspiracy to make false statements regarding health care matters, with the victims of his crime being the Medicare and Missouri Medicaid programs, which is a conviction for a criminal offense related to the delivery of an item or service under Medicare or a state health care program. I affirm the 12-year exclusion period because the IG has proven three aggravating factors, and there are no mitigating factors present. I also affirm that the effective date of Petitioner’s exclusion is February 20, 2024.

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)

Page 2

of the Social Security Act (Act) (42 U.S.C. § 1320a-7b(f)) for a minimum period of 12 years, effective 20 days from the date of the letter. IG Ex. 1 at 1. The IG explained that Petitioner’s exclusion was based on a “conviction” (as defined in section 1128(i) of the Act), in the United States District Court, Western District of Missouri, 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 items or services under any such program.” IG Ex. 1 at 1. The IG explained that Petitioner was excluded pursuant to section 1128(a)(1) of the Act, which mandates the exclusion of any individual who is convicted under federal or state law of a criminal offense related to the delivery of an item or service under Medicare or any state health care program. IG Ex. 1 at 1; 42 U.S.C. § 1320a-7(a)(1). The IG informed Petitioner that the exclusion was for “a minimum period of 12 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 12 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; 2) The acts that resulted in the conviction, or similar acts, were committed from about February 2019 to about April 2021; and, 3) Petitioner was subject to other adverse actions based on the same circumstances that formed the basis for his exclusion. IG Ex. 1 at 1; 42 C.F.R. § 1001.102(b). The IG did not consider any mitigating factors. IG Ex. 1; see 42 C.F.R. § 1001.102(c).

Petitioner filed a timely request for hearing on April 5, 2024. Thereafter, the Civil Remedies Division issued my standing pre‑hearing order. On April 25, 2024, I presided over a telephonic pre-hearing conference and issued an order summarizing the conference.

The IG, through counsel, filed a brief and seven proposed exhibits (IG Exs. 1-7). Petitioner filed a brief (P. Br.) and six proposed exhibits (P. Exs. 1-6). Neither party has submitted the written testimony of any witnesses, and therefore, a hearing is unnecessary for the purpose of cross-examination of any witnesses. Pre-Hearing Order § 14; see Lena Lasher, DAB No. 2800 at 4 (2017) (discussing that when neither party submits written direct testimony as directed, “no purpose would be served by holding an in-person hearing”), aff’d sub nom. Lasher v. Dep’t of Health & Human Servs., 369 F.Supp.3d 243 (D.D.C. 2019).I will decide this case on the written submissions and documentary evidence.

II. Issues

Whether there is a basis for exclusion, and if so, whether the 12-year length of the exclusion that the IG has imposed is unreasonable. 42 C.F.R. § 1001.2007(a)(1)-(2).

Page 3

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. On March 13, 2023, a District Court imposed judgment of Petitioner’s conviction for conspiracy to make false statements in health care matters, and he was ordered to pay $399,021 in restitution to the Medicare and Missouri Medicaid programs.

2. The conduct underlying the conviction for conspiracy to make false statements regarding health care matters involved Petitioner knowingly and willfully making false statements and documents in certifying the medical necessity of thousands of items or services that were provided to Medicare and Medicaid beneficiaries.

3. Petitioner has been convicted of a criminal offense related to the delivery of an item or service under Medicare or a state health care program.

Section 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--

Page 4

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.

See 42 U.S.C. § 1320a-7(a)(1).

The IG contends that she excluded Petitioner from all federal health care programs based on his conviction for an offense that was related to the delivery of a health care item or service under Medicare or a state health care program. IG Br. at 5-7. 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.

On September 21, 2022, the United States filed a one-count information charging that Petitioner engaged in a conspiracy to make false statements regarding health care matters, in violation of 18 U.S.C. §§ 371 and 1035. IG Ex. 2. Prior to the filing of the information, on July 22, 2022, Petitioner entered into a plea agreement with the United States in which he agreed to enter a guilty plea to Count One of the information.³ IG Ex. 3. Petitioner acknowledged that he “knowingly and willfully” signed orders for durable medical equipment and genetic testing despite having no prior doctor-patient relationship with the Medicare and Medicaid beneficiaries and “not hav[ing] adequate information to assess medical necessity for the beneficiaries.” IG Ex. 3 at 4. Petitioner also acknowledged that he was paid approximately $20 for each order of durable medical equipment or genetic testing and was paid a total of $44,860 between March 2019 and April 2021. IG Ex. 3 at 4. Petitioner further acknowledged that Medicare paid $3,094,181 for the durable medical equipment claims, and that, with respect to laboratory claims, Medicare paid $371,302 and Medicaid paid $524,734. IG Ex. 3 at 5. Petitioner recognized that he was pleading guilty to a Class D felony that is punishable by up to five years of imprisonment. IG Ex. 3 at 7; see 18 U.S.C. § 3559.

On March 9, 2023, the United States filed a motion requesting a downward departure from the advisory Sentencing Guidelines range. P. Ex. 6. In that motion, the United States requested that restitution of $399,021 be imposed, which it stated is “10% of the total amounts paid by Medicare and Medicaid and reflects [Petitioner’s] estimated culpability compared to others involved in the scheme who were more involved and received the vast majority of the ill-gotten profits.” IG Ex. 6 at 7. The United States reported that Petitioner began cooperating soon after he received a target letter, and that he had sat for a proffer session and provided documents to investigators. IG Ex. 6 at 6.

On March 13, 2023, a United States District Judge imposed a sentence that included a five-year period of probation. IG Ex. 5 at 2. The District Judge also ordered that

Page 5

Petitioner pay $399,021 in restitution to the victims of his crime—the Medicare and Missouri Medicaid programs. IG Ex. 5 at 5.

In an order dated February 2, 2023, the Maryland State Board of Physicians suspended Petitioner’s medical license based on his felony conviction. IG Ex. 6. On June 6, 2023, the Maryland Medicaid program terminated Petitioner’s enrollment, citing his guilty plea to “Medicare and Medicaid program-related crimes in federal court on September 21, 2022.” IG Ex. 7.

Petitioner has a criminal conviction for conspiracy to make false statements regarding healthcare matters, and he admitted that his “false and fraudulent statements and documents contained in the orders and certifications . . . were in connection with the delivery of or payment for healthcare benefits, items, or services,” with the victims of his crime being the Medicare and Missouri Medicaid programs. IG Ex. 3 at 5. 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 administrative law judge 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 make false statements regarding health care matters, and his “false and fraudulent statements and documents” caused both the Medicare and Missouri Medicaid programs to pay for services that were not medically necessary. IG Ex. 3 at 3-4. Therefore, exclusion is mandated for a minimum period of five years based on section 1128(a)(1).

4. A 12-year minimum exclusion is not unreasonable 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 increased the minimum exclusion period from five years to 12 years based on her consideration of three aggravating factors. IG Ex. 1 at 1-2. The IG has the discretion to impose an exclusion longer than the minimum period when there are aggravating factors present. See 42 C.F.R. § 1001.102.

The IG asserts that the presence of three aggravating factors warrants an exclusion for 12 years. IG Br. at 7-10. The first aggravating factor is that the loss to a government program or other entity as a result of Petitioner’s criminal conduct was greater than $50,000. IG Br. at 7-8; 42 C.F.R. § 1001.102(b)(1); see IG Ex. 5 at 5. Second, the acts that resulted in the conviction, or similar acts, were committed over a period of one year

Page 6

or more, occurring from approximately February 2019 until April 2021. IG Br. at 8-9; 42 C.F.R. § 1001.102 (b)(2); see IG Ex. 2 at 8. Third, Petitioner was subject to other adverse actions based on the same circumstances that form the basis for his exclusion, namely the suspension of his Maryland physician license and his termination from the Maryland Medicaid program. IG Br. at 9-10; 42 C.F.R. § 1001.102(b)(9); see IG Exs. 6, 7. Although Petitioner disputes that 12-year length of the exclusion, he has not demonstrated that the IG erroneously or improperly applied these aggravating factors.

Petitioner was ordered to pay $399,021 in restitution. IG Ex. 5 at 5; see 42 C.F.R. § 1001.102(b)(9). The amount of restitution is approximately eight times the threshold $50,000 minimum amount that triggers consideration of the aggravating factor, and the IG had a reasonable basis to lengthen the exclusion based on this factor.⁴

With respect to the duration of the acts that resulted in Petitioner’s felony conviction, Petitioner was convicted of conspiracy to make false statements in health care matters from approximately February 2019 through April 2021. IG Ex. 2 at 8. Petitioner’s actions leading to his conviction were not a one-time lapse in judgment. Rather, Petitioner received approximately $20 each time he improperly ordered durable medical equipment or genetic testing and did so thousands of times over a more than two-year span, with the orders cumulatively yielding him $44,860 in payments. IG Ex. 3 at 5-6. The IG properly considered the length of the acts that resulted in Petitioner’s felony conviction. See IG Br. at 9 (“The purpose of the aggravating factor found at 42 C.F.R. § 1001.102(b)(2) ‘is to distinguish . . . petitioners whose lapse in integrity is short-lived from those who evidence a lack of such integrity over a longer period of time.’”), citing Donald A. Burstein, PhD, DAB No. 1865 at 8 (2003); see also Kimberly Jones, DAB No. 3033 at 11 (2021) (unlawful conduct that “occurred over a period far exceeding a year . . . more than satisfies the aggravating factor and supports the significant weight give to it”).

With respect to other adverse actions, the Maryland State Board of Physicians suspended Petitioner’s license to practice medicine, and the Maryland Medicaid program terminated his enrollment based on his felony conviction. IG Exs. 6, 7. Because these adverse actions were based on the same facts underlying Petitioner’s conviction, the IG properly

Page 7

applied this aggravating factor pursuant to 42 C.F.R. § 1001.102(b)(9). See, e.g., Narendra M. Patel, M.D., DAB No. 1736 at 29 (2000), aff’d 319 F.3d 1317 (11th Cir. 2003), cert. denied, 539 U.S. 959 (2003) (stating that an adverse action beyond a criminal conviction is “additional evidence of the seriousness” of the conviction). Although Petitioner argues that he continues to be licensed to practice medicine in other states, specifically, New York and Delaware (P. Br. at 4-5, citing P. Exs. 4-5), this aggravating factor can be applied when a state agency of board has taken an adverse action based on the same circumstances that underly the conviction; whether other entities declined to take action, or have not yet taken action, is irrelevant to the IG’s consideration of this aggravating factor. 42 C.F.R. § 1001.102(b)(9).

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 am not able to consider evidence of mitigation unless one or more of the enumerated aggravating factors listed in 42 C.F.R. § 1001.102(b) justifies an exclusion of longer than five years. 42 C.F.R. § 1001.102(c). Petitioner submitted evidence that the United States requested a downward departure from the advisory Sentencing Guidelines. P. Ex. 6. However, the motion does not reference any of the enumerated mitigating factors, in that the United States did not report that Petitioner’s cooperation resulted in others being convicted or excluded from Medicare, Medicaid, and all other federal health care programs, additional cases being investigated, or reports being issued by law enforcement agencies, or the imposition of a civil monetary penalty. P. Ex. 6; see 42 C.F.R. § 1001.102(c). Petitioner has not otherwise submitted any evidence that his cooperation warrants application of this mitigating factor. In the absence of such evidence, the IG lacked any basis to apply this mitigating factor.

The 12-year period of Petitioner’s exclusion is not unreasonable based on the three aggravating factors present in this case. See, e.g., Janice Cassandra Wrenn, DAB No. 3118 (2023) (upholding 12-year exclusion based on the presence of two aggravating factors, a $393,934 program loss and criminal conduct that spanned approximately 20 months, with no mitigating factors).⁵ The amount of loss caused by Petitioner’s criminal conduct is substantial, and is more than eight times the threshold $50,000 amount of loss necessary to trigger consideration of this aggravating factor. In addition, Petitioner’s criminal activity lasted for more than two years, and his Maryland physician license and Maryland Medicaid enrollment were suspended and terminated, respectively, based on the same facts underlying his conviction. There are no mitigating factors to weigh

Page 8

against the three significant aggravating factors. I conclude that the IG’s imposition of a minimum period of exclusion for 12 years is not unreasonable. 42 C.F.R. § 1001.2007(a).

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 (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, I affirm the IG’s decision to exclude Petitioner from participation in Medicare, Medicaid, and all other federal health care programs for a minimum period of 12 years, effective February 20, 2024.

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 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 Petitioner’s attorney signed the plea agreement on September 22, 2022. IG Ex. 3 at 19.

⁴ The IG based the financial loss on the amount of restitution ordered by the District Court. IG Ex. 1 at 1; see IG Ex. 5 at 5. Inasmuch as the financial loss to government programs as a result of Petitioner’s orders of durable medical equipment and genetic testing was nearly $4 million, an amount that Petitioner conceded in his plea agreement, the IG could have imposed a much lengthier period of exclusion based on an exceptional aggravating factor of financial loss. IG Ex. 3 at 5; see, e.g., Jeremy Robinson, DAB No. 1905 at 11 (2004) (“We have previously determined that restitution in an amount that is very substantially greater than the statutory standard is entitled to ‘significantly more weight,’ characterizing it as an ‘exceptional aggravating factor.’”).

⁵ The fact that the Departmental Appeals Board upheld a 12-year exclusion involving fewer aggravating factors, with a slightly lower amount of financial loss and a shorter duration of criminal conduct, evidences the remedial nature of the exclusion. See P. Br. at 7 (arguing that the exclusion is punitive); see also Edwin Bickelhaupt, M.D., DAB No. 2480 at 3 (2012) (“[C]ourts and the Board have held that exclusions under section 1128 are civil and remedial, not criminal and punitive.”).