Akintunde Oyewale, DAB CR6552 (2024)

DECISION

I uphold the determination of the Inspector General (IG) of the United States Department of Health and Human Services to exclude Akintunde Oyewale (Petitioner) from participation in all federal health care programs for 20 years.

I.    Case Background and Procedural History

In a February 29, 2024 notice, the IG excluded Petitioner from participation in all federal health care programs under 42 U.S.C. § 1320a-7(a)(1) for 20 years due to Petitioner’s conviction in the United States District Court for the Southern District of Texas (District Court) of a criminal offense related to the delivery of an item or service under Medicare or a state health care program.  The notice stated that the exclusion was effective 20 days from the date on the notice.  IG Ex. 1 at 1.

On April 22, 2024, the Civil Remedies Division received a request for hearing in which Petitioner challenged the length of the exclusion.  Petitioner’s address indicated that he was incarcerated at a federal correctional institution.  Hearing Req. at 1.

On May 14, 2024, the Civil Remedies Division (CRD) acknowledged the hearing request, notified the parties of the date for a prehearing conference, and issued my

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Standing Order.  Also on May 14, 2024, CRD sent a letter (May 14 Letter) by mail and email to prison officials requesting that they arrange for Petitioner to participate in the prehearing conference by telephone.  CRD had already made multiple attempts to contact prison officials, but they did not respond.  May 14 Letter at 1.

On June 13, 2024, I held an abbreviated telephone prehearing conference, the substance of which is summarized in my June 13, 2024 Order Following Prehearing Conference and Setting Schedule for Prehearing Submissions (June 13 Order).  Petitioner was not present, but I held the abbreviated conference with IG counsel because both parties had notice and an opportunity to participate and I needed to address Petitioner’s absence with IG counsel to seek assistance in contacting prison officials.  June 13 Order at 1; 42 C.F.R. §§ 1005.4(b)(3), 1005.5.  At the conference, I directed the IG to try to communicate with the prison and learn whether they would assist Petitioner with participating in a telephonic conference.  June 13 Order at 2.  Because the IG is a law enforcement entity, I reasoned that the IG may have greater success with prison officials than CRD did.

Given the lack of communication, I could not be certain that Petitioner’s absence from the conference was that fault of prison officials.  Therefore, I attempted to cover as many contingencies as possible in my June 13 Order to ensure an appropriate and efficient adjudication.  The June 13 Order established dates by which:  1) the IG would submit a statement as to the results of its efforts to contact prison officials; 2) Petitioner would send a notice withdrawing his appeal, if Petitioner no longer wanted to pursue the appeal; 3) Petitioner would send notice that he wanted to participate in a rescheduled prehearing conference, if Petitioner wanted to participate in one; 4) the IG would file a prehearing exchange; 5) Petitioner would file a prehearing exchange; and 6) the IG would file a reply brief or notice that no reply brief would be filed.  June 13 Order at 2-3.

On June 26, 2024, the IG filed a Report on Prison Contact in which counsel documented several efforts to contact prison officials.  IG counsel learned the name and contact information of Petitioner’s prison counselor.  Despite this, counsel was unable to speak with the counselor.  Electronic Filing System (E-File) Doc. No. 6.

On June 28, 2024, the IG filed a copy of a June 28, 2024 email from counsel to Petitioner’s prison counselor documenting his conversation with the counselor.  The prison counselor stated that Petitioner received “correspondence” from CRD.  Counsel also told the counselor that Petitioner should contact CRD.1  E-File Doc. No. 7.

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On July 2, 2024, Petitioner spoke with CRD staff by phone.  Petitioner acknowledged receipt of the June 13 Order, indicated that he did not want to participate in a rescheduled prehearing conference, and stated he would file a brief.  E-File Doc. No. 15.

On July 11, 2024, the IG filed a brief (IG Br.) and four exhibits.  Petitioner was to file his prehearing exchange on August 30, 2024; however, CRD has not received that exchange.  On September 10, 2024, the IG filed notice that the IG had not received Petitioner’s exchange and, consequently, the IG would not file a reply brief.

On September 27, 2024, after waiting nearly a month for Petitioner’s prehearing exchange, I issued an Order Closing Record.  Consistent with Standing Order ¶ 16, I stated that I would issue a decision within 60 days and that I would address the arguments Petitioner made in his hearing request.  E-File Doc. No. 16.

II.    Issues

1. Whether the IG had a legitimate basis for excluding Petitioner from participating in all federal health care programs under 42 U.S.C. § 1320a-7(a)(1).
2. If the IG properly excluded Petitioner, whether the 20-year length of exclusion imposed by the IG is unreasonable. 

III.   Admission of Evidence

I admit IG Exhibits 1 through 4 into the record without objection.  See 42 C.F.R. § 1005.8(c); Standing Order ¶ 13.

IV.    Decision on the Written Record

I directed the parties to submit written direct testimony from all witnesses that the parties wanted to present in this case and stated that the opposing party could request to cross-examine the witnesses.  Standing Order ¶¶ 11-12; see also 42 C.F.R. § 1005.16(b); Civil Remedies Division Procedures (CRDP) § 16(b).  I also advised the following:

I will not conduct a hearing in this case unless a party files admissible, written direct testimony, and the opposing party asks to cross-examine one or more witnesses.  If I do not conduct a hearing, then I will issue [a decision] based on the written record.

Standing Order ¶ 12; see also CRDP § 19(b).

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Finally, I stated the following to the parties:  “I will issue a decision within 60 days of receiving . . . the IG’s reply or waiver of reply (if I do not need to hold a hearing to permit cross-examination of witnesses).”  Standing Order ¶ 16.  This is consistent with CRDP § 19(d), which states: 

The ALJ may determine that an oral hearing is unnecessary and not in the overall interest of judicial economy if the parties do not identify any proposed witnesses, do not offer the written direct testimony of any witnesses when ordered to do so, or do not request an opportunity to cross-examine a witness whose written direct testimony has been offered.  Under these circumstances, the ALJ may decide the case based on the written record.

In the present case, all deadlines for prehearing exchanges have passed and neither party filed written direct testimony.  See IG Br. at 8 (IG has no witness testimony to offer and an in-person hearing is unnecessary); see also CRD Report of Contact (E-File Doc. No. 15) (documenting that Petitioner only said he would file a brief but did not say he would file witness testimony); Order Closing Record (E-File Doc. No. 16) (documenting that Petitioner had not filed a prehearing exchange).  Therefore, I do not need to hold an in-person hearing and may issue a decision based on the written record.  EI Medical, Inc., DAB No. 3117 at 15 (2023); Vandalia Park, DAB No. 1940 (2004).

Petitioner’s failure to timely file a prehearing exchange does not preclude me from issuing a decision based on the written record.  Anil Hanuman, D.O., DAB No. 3080 at 12 (2022).  As stated in the Order Closing Record, I address in this decision the arguments Petitioner made in his hearing request.

V.    Jurisdiction

I have jurisdiction to adjudicate this case.  42 U.S.C. § 1320a-7(f)(1); 42 C.F.R. §§ 1001.2007, 1005.2.

VI.    Findings of Fact

1. On September 16, 2021, a grand jury empaneled by the District Court returned an Indictment charging Petitioner (in Count 1) with Conspiracy to Commit Health Care Fraud in violation of 18 U.S.C. § 1349.  IG Ex. 2.
2. On February 1, 2022, Petitioner signed a Plea Agreement in which Petitioner agreed to plead guilty to Count 1 of the Indictment, which “charge[d] [Petitioner] with Conspiracy to Commit Health Care Fraud, in violation of Title 18, United States Code, Section 1349.”  IG Ex. 3 at 1, 12, 13.

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3. As part of the Plea Agreement, Petitioner agreed that the United States could prove the following facts to establish Petitioner’s guilt:
   1. From in or around January 2014 to in or around September 2017, [Petitioner], and co-conspirators . . . submitted or caused the submission of claims to Medicare for home health services that were not medically necessary, not provided, or both.  Medicare paid approximately $1,467,719.92 on those claims.  [Petitioner] transferred those Medicare funds for his and his family members use and benefit.
   2. [Petitioner], a resident of Fort Bend County, Texas, billed Medicare in the above mentioned scheme using the home health agency “Grace Healthcare Services Inc”, a company [Petitioner] co-owned, administered, and operated from at least January 2014 through September 2017.
   3. [Petitioner], to accomplish the scheme, paid and caused the payment of money, or kickbacks, to [a patient recruiter] in exchange for unlawful referrals of Medicare beneficiaries to Grace.
   4. [Petitioner] also paid and caused the payment of unlawful kickbacks to Clinic A and Clinic M to improperly certify many patients for home health services that Grace Healthcare Services Inc. billed for.  Neither the clinic nor doctors actually met or examined the patients to determine medical need, as required by Medicare.
   5. When subpoenaed by a grand jury to produce records for Medicare billings, [Petitioner] failed to produce documentation supporting the claims.  A failure to produce supporting documents for Medicare claims makes the claims subject to recoupment.  IG Ex. 3 at 7-8.
4. In the Plea Agreement, “[Petitioner] agree[d] to pay full restitution to the victim regardless of the count of conviction.  [Petitioner] stipulates and agrees that as a result of his criminal conduct, the victims, Medicare and Medicaid, incurred a monetary loss of approximately $1,467,719.92.”  IG Ex. 3 at 10.
5. On June 6, 2023, the District Court entered a Judgment in a Criminal Case in which the court:  acknowledged that Petitioner pleaded guilty to Count 1 of the Indictment on February 1, 2022; stated that Petitioner “is adjudicated guilty of . . . Conspiracy to commit health care fraud”; sentenced Petitioner to 57 months of incarceration; ordered Petitioner “excluded from participating as a provider in Medicare, Medicaid, and all Federal health care programs”; and ordered Petitioner to pay restitution to “Medicare” in the amount of $1,467,719.92.  IG Ex. 4.

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VII.   Conclusions of Law and Analysis

1. Petitioner was convicted of a criminal offense related to the delivery of a health care item or service under the Medicare program; therefore, exclusion is required under 42 U.S.C. § 1320a‑7(a)(1).

The IG must exclude an individual from participation in all federal health care programs if that individual was 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 U.S.C. § 1320a‑7(a)(1).

Petitioner did not dispute that the IG had a legitimate basis to exclude him from federal health care programs.  Hearing Req. at 1 (conceding a guilty plea and conviction, and only appealing the length of exclusion).  Indeed, the District Court ordered Petitioner’s exclusion from participating as a provider in federal health care programs.  IG Ex. 4 at 4.

My independent review of the record shows that Petitioner was convicted of a criminal offense because he pleaded guilty to a crime, the plea was accepted, and the District Court issued a judgment of conviction.  IG Ex. 3; IG Ex. 4 at 1; 42 U.S.C. § 1320a‑7(i)(1), (3).

Further, Petitioner’s criminal offense is related to the delivery of health care items or services under the Medicare program.  For purposes of exclusion, 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 “relating 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).

There is no doubt that convictions involving false claims submitted to the Medicare or Medicaid programs are “related to” the delivery of an item or service under those programs.  See Travers v. Shalala, 20 F.3d 993, 998 (9th Cir. 1994) (conviction for filing claims with the Medicaid program is “a program‑related offense” and “such financial misconduct is exactly what Congress sought to discourage” through imposing exclusions.); Kahn v. Inspector Gen. of the U.S. Dep’t of Health & Human Servs., 848 F. Supp. 432, 434, 436 (S.D.N.Y. 1994) (concluding that a podiatrist’s conviction for attempted grand larceny was program- related for purposes of an exclusion because it was related to the filing of false Medicaid claims); Greene v. Sullivan, 731 F. Supp. 835, 838 (E.D. Tenn. 1990) (“There is no question that Mr. Greene’s crime [of filing false claims] resulted in a Medicaid overpayment and was a program-related crime triggering the mandatory exclusion under Section 1320a‑7(a).”).  In addition, Petitioner’s agreement to pay restitution to the Medicare program, which was approved and ordered by the

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District Court, shows that Petitioner’s criminal offense was related to the delivery of a healthcare item or service under the Medicare program.  Summit S. Shah, M.D., DAB No. 2836 at 8-10 (2017).

Because Petitioner was convicted of a criminal offense related to delivery of healthcare items or services under the Medicare program, Petitioner is subject to a mandatory exclusion under 42 U.S.C. § 1320a‑7(a)(1).

2. Petitioner must be excluded for a minimum of five years.

Because I have concluded that a basis exists to exclude Petitioner under 42 U.S.C. § 1320a‑7(a)(1), Petitioner must be excluded for a minimum of five years.  42 U.S.C. § 1320a‑7(c)(3)(B).

3. The IG has proven that three aggravating factors exist in this case to extend the length of exclusion beyond the minimum five-year requirement.

Although individuals excluded under 42 U.S.C. § 1320a‑7(a)(1) must be excluded for a minimum of five years, the statute does not preclude a longer term of exclusion.  The applicable regulations provide a list of aggravating factors that may serve as the basis for extending an exclusion beyond five years.  42 C.F.R. § 1001.102(b).  As explained below, the IG proved the existence of three aggravating factors listed in the regulations.

1. Petitioner admitted that he caused $1,467,719.92 in loss to the Medicare program and the District Court ordered that Petitioner pay restitution that amount to the Medicare program.

The IG provided evidence that demonstrates the acts resulting in Petitioner’s criminal conviction caused, or were intended to cause, a financial loss to a government program of $50,000 or more.  42 C.F.R. § 1001.102(b)(1).  Specifically, in the Plea Agreement, Petitioner “stipulates and agrees that as a result of his criminal conduct, the victims, Medicare and Medicaid, incurred a monetary loss of approximately $1,467,719.92.”  IG Ex. 3 at 10.  The District Court ordered Petitioner to pay that amount to the Medicare program as restitution.  IG Ex. 4 at 5.  Petitioner does not dispute this.  Therefore, I conclude that the IG proved this aggravating factor.

2. Petitioner’s acts that resulted in conviction, or similar acts, were committed for more than one year, i.e., from approximately January 2014 to in or around September 2017.

The IG provided evidence that demonstrates the acts that resulted in the conviction, or similar acts, were committed for one year or more.  42 C.F.R. § 1001.102(b)(2).  Specifically, in the Plea Agreement, Petitioner agreed that “[f]rom in or around January

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2014 to in or around September 2017, [Petitioner], and co-conspirators . . . submitted or caused the submission of claims to Medicare for home health services that were not medically necessary, not provided, or both.”  IG Ex. 3 at 8.  Petitioner did not dispute this.  Therefore, I conclude that the IG proved this aggravating factor.

3. The District Court sentenced Petitioner to 57 months of incarceration.

The IG provided evidence that demonstrates that Petitioner was sentenced to a term of incarceration based on the criminal offense he committed.  42 C.F.R. § 1001.102(b)(5). The District Court sentenced Petitioner to 57 months in prison.  IG Ex. 4 at 2.  Petitioner did not dispute this.  Therefore, I conclude that the IG proved this aggravating factor.

Petitioner asserts that he is seeking a reduced term of incarceration.  Hearing Req. at 1.  However, Petitioner did not state that the District Court reduced the sentence, and Petitioner did not submit an order showing a reduction in the sentence.  Therefore, I cannot consider the mere possibility of a future reduction in the sentence.

4. Petitioner did not prove the existence of any mitigating factors that would justify a reduction in the length of exclusion imposed by the IG.

When there are aggravating factors supporting an exclusion for more than five years, an excluded individual may show that one or more mitigating factors listed in the regulations justify a reduction in the length of exclusion.  42 C.F.R. § 1001.102(c).  Petitioner did not assert or prove that any of the mitigating factors listed in the regulations are present in this case.

5. The 20-year length of Petitioner’s exclusion is not unreasonable.

When considering the length of exclusion, “[t]he evaluation does not rest on the specific number of aggravating or mitigating factors or any rigid formula for weighing those factors, but rather on a case-specific determination of the weight to be accorded each factor based on a qualitative assessment of the circumstances surrounding the factors in that case.”  Farzana Begum, M.D., DAB No. 2726 at 2 (2016).  Further, the general purpose of an exclusion under 42 U.S.C. § 1320a-7 is “to protect federal health care programs and the programs’ beneficiaries and recipients from untrustworthy providers.”  Susan Malady, R.N., DAB No. 1816 at 9 (2002).  Ultimately, I must decide whether the 20-year length of exclusion is unreasonable (i.e., is it within a reasonable range for the length of exclusion based on the relevant factors).  42 C.F.R. § 1001.2007(a)(1)(ii); 57 Fed. Reg. 3298, 3321 (Jan. 29, 1992).

In this case, Petitioner developed and executed a conspiracy with others to file fraudulent claims with the Medicare program.  The stipulated facts in the Plea Agreement show that Petitioner had a scheme whereby his home health agency would submit claims to the

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Medicare program for unnecessary services or for services that were never provided to Medicare beneficiaries.  The scheme including paying kickbacks for patient referrals and paying medical clinics to certify that patients needed home health services without meeting or examining the patients to determine if such services were actually needed.  IG Ex. 3 at 8.  Based on the aggravating factors, it is clear that this scheme was a significant threat to the financial well-being of the Medicare program.

The scheme lasted for over three and a half years.  This is two years and eight months longer than the minimum time required for this to count as an aggravating factor.  The length of time is significant because it shows that Petitioner did not merely make a mistake or commit a one-time crime but engaged in a long-term conspiracy to steal from the Medicare program as a normal business activity.  Over this time, Petitioner paid kickbacks for patient referrals and paid medical clinics to falsely certify that Medicare beneficiaries needed home health services even though clinic personnel did not meet with the beneficiaries.  This aggravating factor weighs heavily in favor of a lengthy exclusion because it shows Petitioner’s lengthy criminal behavior and his long-term willingness to commit fraud.

Petitioner’s scheme resulted in nearly $1.5 million in loss to the Medicare program.  This amount of loss is more than 29 times larger than the minimum amount ($50,000) for this to be considered an aggravating factor.  This amount shows that Petitioner filed many fraudulent claims with Medicare and sought to become wealthy at the expense of taxpayers and to the financial detriment of the Medicare program.  This aggravating factor weighs heavily in favor of a lengthy exclusion because it shows that Petitioner was motivated by greed and did not care from whom he stole or the damage that theft would cause.

Finally, the District Court sentenced Petitioner to incarceration.  In Petitioner’s case, he received 57 months or nearly five years in prison.  A prison sentence of as little as nine months is considered to be relatively substantial for exclusion purposes.  Jason Hollady, M.D., DAB No. 1855 at 12 (2002).  Petitioner’s sentence is more than six times longer than the 9 months that is considered a substantial term of incarceration.  Such a lengthy term of incarceration shows Petitioner’s culpability and the harm he inflicted on the Medicare program.  This factor weighs heavily in favor of a lengthy exclusion.

In general, Petitioner argues that the length of exclusion should be reduced because he accepted responsibility for his actions by pleading guilty, has taken steps to address his mistakes, and is “seeking avenues for redemption within the legal framework.”  Hearing Req. at 1.  Despite his alleged change of heart and acceptance of responsibility, Petitioner thinks the 20-year length of exclusion is “unduly severe” and “does not adequately reflect the nature of my offense nor the efforts I’ve made toward rehabilitation.”  Petitioner believes reconsideration of the exclusion length would “align with principles of fairness and proportionality in administering justice.”  Hearing Req. at 1.

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Petitioner’s misunderstanding of the magnitude of his crime is further evidence that he needs to be prohibited for a long time from participating in federal health care programs.  Petitioner believes the exclusion is severe and that it lacks fairness and proportionality.  However, the sole purpose of the exclusion is to protect federal health care programs from those who would commit fraud on those programs or other crimes against beneficiaries.  Manocchio v. Kusserow, 961 F.2d 1539, 1541-42 (11th Cir. 1992) (exclusions are remedial and not punitive).  Therefore, the length of exclusion is to ensure the well-being of federal health care programs and is not directed at harming or punishing Petitioner.

The Medicare program is the nation’s premiere government program that provides coverage of health care services provided to those who most need it – the elderly and disabled.  It is under constant financial strain due to the enormity of its task.

Petitioner committed long-term fraud on that program, which is essential to millions of Americans.  The aggravating factors in this case show that the 20-year length of exclusion is not unreasonable.  Petitioner is a significant threat to those programs, and Petitioner’s belief that he is somehow being unjustly treated does nothing to change this assessment.

VIII.   Conclusion

For the foregoing reasons, I affirm the IG’s determination to exclude Petitioner for 20 years from participating in all federal health care programs pursuant to 42 U.S.C. § 1320a‑7(a)(1).