Ahmed Mohamud Fahiye, DAB CR6518 (2024)

DECISION

The Inspector General (IG) of the United States Department of Health and Human Services excluded Petitioner, Ahmed Mohamud Fahiye, from participation in Medicare, Medicaid, and all other federal health care programs based on Petitioner’s 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 based on his criminal conviction, as defined by 42 U.S.C. § 1320a-7(i), for theft by swindle, with the victim being the Minnesota Medicaid program.  An exclusion for the minimum period of five years is mandatory pursuant to section 1128(c)(3)(B), 42 U.S.C. § 1320a-7(c)(3)(B), of the Social Security Act (“the Act”).

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 Act, 42 U.S.C. § 1320a-7b(f), for a minimum period of 5 years, effective 20 days from the date of the letter.  Ex. 1 at 1.  The IG explained that Petitioner’s exclusion was

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based on his “conviction (as defined in section 1128(i) of the Act), in the State of Minnesota, County of Ramsey, District Court, Second Judicial Circuit, of a criminal offense related to the delivery of an item or service under 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 further explained that she had excluded Petitioner 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; see 42 U.S.C. § 1320a-7(a)(1).  The IG informed Petitioner that the exclusion was for “the minimum statutory period of 5 years.”  IG Ex. 1 at 1; see 42 U.S.C. § 1320a-7(c)(3)(B).

On April 4, 2024, the Civil Remedies Division acknowledged receipt of Petitioner’s request for hearing, at which time it issued my standing pre-hearing order.  On April 19, 2024, pursuant to 42 C.F.R. § 1005.6, I presided over a telephonic pre-hearing conference, and that same day I issued an order summarizing the pre-hearing conference and setting the schedule for pre-hearing submissions.

Pursuant to my orders, the IG filed a brief and four exhibits (IG Exs. 1-4).  Petitioner, who is represented by the same counsel who represented him in the criminal proceedings, filed a brief (P. Br.) and two exhibits (P. Exs. 1-2).  See P. Ex. 1 at 1 (printout of docket sheet for criminal case).  In the absence of any objections, I admit the parties’ exhibits into the record.

Neither party submitted the written direct testimony of any witnesses.  See Pre-Hearing Order §§ 12, 14; see, e.g., 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, Lasher v. Dep’t of Health & Human Servs., 369 F. Supp. 3d 243 (2019).  Consequently, it is unnecessary to convene a hearing for the purpose of cross-examination of any witnesses.  See Pre-Hearing Order §§ 15, 16.  The record is closed, and the case is ready for a decision on the merits.

II. Issues

Whether there is a basis for exclusion, and, if so, whether the five-year period of the exclusion that the IG has imposed is mandated by law.  42 C.F.R. § 1001.2007(a)(1)-(2).

III.  Jurisdiction

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

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

1. Petitioner has a conviction, as contemplated by section 1128(i) of the Act, for an offense that is related to the delivery of a health care item or service under a federal or state health care program, which is an offense, pursuant to section 1128(a)(1) of the Act, that subjects him to a mandatory exclusion from all federal health care programs for a minimum 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:

(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.

See 42 U.S.C. § 1320a-7(a)(1).  Further, section 1128(i) of the Act states that an individual is “convicted” of a criminal offense for the purpose of an exclusion under, when, as relevant here, “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).

The IG argues that she properly excluded Petitioner from all federal health care programs based on Petitioner’s 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 1-3.  I find

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that Petitioner was convicted of a criminal offense that, for purposes of the Act, mandates exclusion from all federal health care programs.

On September 8, 2022, the State of Minnesota, County of Ramsey, filed a one-count complaint charging that there was probable cause to believe that Petitioner committed the offense of theft by swindle (over $1,000), in violation of section 609.52.2(a)(4) of the Minnesota Statutes, with the victim being the Minnesota Medicaid program.  IG Ex. 4 at 1.  The complaint stated there was probable cause to believe that Petitioner, on 24 occasions between April 6 and April 30, 2020, claimed to have provided interpreter services for Medicaid beneficiaries that he did not provide.  IG Ex. 4 at 3.  The complaint concluded that there was probable cause that Petitioner’s “fraudulent representations on his interpreter logs caused the Medicaid program to overpay $2,629.00, of which [he] received $1,133.05 in wages.”  IG Ex. 4 at 3.

On April 20, 2023, Petitioner submitted a “Petition To Enter Plea of Guilty In Felony Case” to the offense of theft by swindle pursuant to Rule 15 of the Minnesota Rules of Criminal Procedure.  IG Ex. 2; see P. Ex. 1 at 6 (case docket reporting amended plea of “Guilty” on April 20, 2023).  Petitioner agreed to enter a plea of guilty, and the prosecutor agreed to enter a stay of adjudication agreement that would require Petitioner to serve two years of supervised release, perform 50 hours of community service, and pay full restitution in the amount of $2,629.00.  IG Ex. 2 at 4.  Additionally, the agreement included a prohibition on Petitioner “work[ing] in any capacity involving contact with Medicaid and Medicare funds.”  IG Ex. 2 at 4.  Petitioner acknowledged that if his plea was not accepted by the court, then he would stand trial on the original charge.  IG Ex. 2 at 5.  Petitioner acknowledged that his attorney told him, and that he understood, that a judge will not accept a plea of guilty from anyone who claims to be innocent, and he did not make a claim that he is innocent.  IG Ex. 4 at 5.

On the same day Petitioner filed his petition to enter a guilty plea, April 20, 2023, a Minnesota district court judge issued a sentencing order, with a disposition of “stay of adjudication” that included two years of supervised probation, 50 hours of community service, payment of restitution and fines totaling $2,729.00, and a condition of “NO EMPLOYMENT IN ANY CAPACITY INVOLVING MEDICARE OR MEDICAID.”  IG Ex. 3 at 1-2 (capitalization in original); see P. Ex. 1 at 2 (listing the order as a “Sentencing Order”).  The sentencing order states that successful completion of probation will result in a dismissal.  IG Ex. 3 at 1.

On June 6, 2024, an agent for Ramsey County Community Corrections reported to the court that Petitioner “was sentenced . . . , adjudication was stayed, and [Petitioner] was placed on probation for a period of 2 years[s],” and that “[i]t is recommended that [Petitioner] be discharged from probation without an adjudication of guilt, and that the case . . . be dismissed.”  P. Ex. 2 at 1.  On June 10, 2024, a state district court judge ordered that the case be dismissed and that Petitioner be discharged from probation

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without an adjudication of guilt.  P. Ex. 2 at 1.  The order stated that Petitioner had not been convicted of a crime and “shall not experience any of the disqualifications imposed by law for a conviction of a crime except for those imposed by the Federal Gun Control Act.”  P. Ex. 2 at 1.

Petitioner limits his arguments to the question of whether he has a criminal conviction pursuant to section 1128(i) of the Act, and he does not otherwise dispute the IG’s determination that the offense otherwise warrants exclusion pursuant to section 1128(a)(1) of the Act.  P. Br.  Because Petitioner has not disputed the IG’s determination that the offense of theft by swindle, involving his purported provision of translation services to Medicaid beneficiaries, with the victim being the Minnesota Medicaid program, related to the delivery of any item or service under the Medicare or a state health care program, he has conceded that an exclusion would be warranted pursuant to 1128(a)(1) of the Act if he has a conviction for that offense.

Petitioner argues that he received a stay of adjudication, and therefore, there is no conviction.  P. Br. at 1-2.  To the extent Petitioner received a stay of adjudication, the case was dismissed, and a state district judge explicitly stated that he does not have a conviction, Petitioner is correct; for purposes of the Minnesota justice system, Petitioner does not have a criminal conviction.  P. Ex. 2 at 1 (order discharging probation, stating, Petitioner “has not been convicted of a crime”).

However, as Petitioner recognizes, the definition of conviction is broad as contemplated for purposes of an IG exclusion.  As relevant here, pursuant to section 1128(i)(3) of the Act, an individual has a conviction when a court has accepted a guilty plea.  P. Br. at 1-2 (claiming that Petitioner entered a plea, there is no conviction, and the court did not accept the plea).

There is no merit to Petitioner’s claim that the court did not accept his guilty plea.  Petitioner has not submitted any evidence that the court did not accept his guilty plea, such as a sentencing hearing transcript, a condition in the plea agreement, or a provision in the sentencing order.  To the contrary, it is clear that the court’s sentence of Petitioner to two years of supervised probation, along with restrictions on his employment, 50 hours of community service, and restitution and fines totaling $2,729, was based on the acceptance of his guilty plea.  IG Ex. 3 at 1-2; see Minnesota Rules of Criminal Procedure (MRCP) § 15.04(3)(2) (“When a plea is entered and the defendant questioned, the district judge must reject or accept the plea of guilty on the terms of the plea agreement.”); see also MRCP § 15.01(6)(o) (addressing when “plea of guilty is not accepted by the court”).  The explicit language of the plea agreement makes clear that the approval of the agreement was conditioned on the court’s acceptance of Petitioner’s guilty plea.  IG Ex. 2 at 5 (addressing the following:  the consequences if “plea of guilty is for any reason not accepted by the court”; the right to appeal if “plea of guilty is accepted by the judge”; that Petitioner’s “attorney has told [him] and [he] understand[s]

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that a judge will not accept a plea of guilty from anyone who claims to be innocent”; and that Petitioner “make[s] no claim that [he is] innocent.”).  While the court unquestionably stayed the adjudication of guilt (IG Ex. 3 at 1), it is simply preposterous that the court imposed a sentence without any factual basis for doing do.  See Stuart Alan Rockwell, D.D.S., DAB No. 3022 at 8 (2022) (upholding ALJ determination that a court had accepted a guilty plea, quoting the ALJ’s rationale that “[i]t is simply illogical that the District Judge would ‘sentence’ [the petitioner] to pay restitution and impose a ‘mandatory’ fine and other costs, even though the District Judge, according to [the petitioner], did not accept [the petitioner’s] guilty plea.”).  The evidence demonstrates that although the court stayed the adjudication of guilt, it accepted his guilty plea.  Petitioner has a conviction as contemplated by section 1128(i)(3) of the Act, 42 U.S.C. § 1320a-7(i)(3).

The courts may seek to further rehabilitative goals, but the IG seeks to protect federal funds and Medicare beneficiaries.  See Henry L. Gupton, DAB No. 2058 at 7 (2007) (explaining that the goals of criminal law “generally involve punishment and rehabilitation by the offender, possibly deterrence of future misconduct . . . and various public policy goals,” whereas exclusions “are civil sanctions, designed to protect beneficiaries of health care programs and the federal fisc.”), aff’d, Henry L. Gupton v. Leavitt, 575 F.Supp.2d 874 (E.D. Tenn. 2008).  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 “[f]ind invalid or refuse to follow Federal statutes or regulations.”  42 C.F.R. § 1005.4(c)(1).  An  exclusion for a minimum period of five years is mandated pursuant to 42 U.S.C. §§ 1320a-7(a)(1), 7(c)(3)(B).

2. 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).

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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 five 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 (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.