Mustafe Abdi Ismael, DAB CR6659 (2025)

DECISION

The Inspector General (IG) of the United States Department of Health and Human Services excluded Mustafe Abdi Ismael (Petitioner), from participation in Medicare, Medicaid, and all other federal health care programs for five years pursuant to section 1128(a)(1) of the Social Security Act (Act) (42 U.S.C. § 1320a-7(a)(1)).  For the reasons discussed below, it is determined that the IG had a basis to exclude Petitioner from program participation, and the five-year mandatory exclusion period must be imposed.  The IG’s exclusion determination is affirmed. 

I. Background and Procedural History

By letter dated November 29, 2024, the IG excluded Petitioner from participating in Medicare, Medicaid, and all Federal health care programs pursuant to section 1128(a)(1) of the Act for five years effective 20 days from the date of the letter.  IG Exhibit (Ex.) 1 at 1.  Petitioner was excluded due to his conviction 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.  Id.  The conviction took place in the State of Minnesota, District Court, 3rd Judicial District, Steele County.  Id. 

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On December 26, 2024, the Civil Remedies Division (CRD) received Petitioner’s timely request for hearing before an administrative law judge (ALJ) to contest the five-year exclusion imposed by the IG.  On December 31, 2024, the CRD issued an Acknowledgment Notice, ALJ Leslie Rogall’s Standing Pre-Hearing Order, and the CRD Procedures. 

A pre-hearing conference was scheduled for January 21, 2025.  On that same date, the CRD issued an order summarizing the pre-hearing conference. 

On February 6, 2025, the IG filed a brief (IG Br.) in addition to five exhibits (IG Exs. 1‑5).  On March 24, 2025, Petitioner filed a brief (P. Br.) without any exhibits.  This case was transferred to me on March 27, 2025.  The IG filed a reply brief (IG Reply) on March 28, 2025. 

II. Admission of Exhibits and Decision on the Written Record

The parties agreed in their filings that an in-person hearing is not necessary to decide this case.  Therefore, a hearing is not necessary, and this matter will be decided on the written record.

Petitioner did not object to the IG’s proposed exhibits.  Therefore, IG Exhibits 1-5 will be admitted into the record. 

III. Issue

The issue to be decided is whether the IG had a basis to exclude Petitioner from participation in Medicaid, Medicare, and other federal health care programs under section 1128(a)(1) of the Act.  42 C.F.R. § 1001.2007(a)(1). 

IV. Jurisdiction

This tribunal has jurisdiction to adjudicate this case.  42 C.F.R. §§ 1001.2007(a)(1), 1005.2; see also 42 U.S.C. § 1320a-7(f)(1). 

V. Findings of Fact

1. 1. Fahan Transportation, LLC

Petitioner was the sole employee of Fahan Transportation, LLC (Fahan) that provided non-emergency medical transportation (NEMT) to Medicaid beneficiaries.  IG Ex. 2 at 4.  Petitioner signed a provider agreement with South Country Health Alliance (SCHA) to provide NEMT to its members.  Id.  SCHA conducted routine monitoring of its NEMT 

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billing and identified Fahan as an outlier.  Id.  Following an investigation, SCHA identified 29 inappropriately billed claims and sought reimbursement for $6,037.40 in payments made.  Id.  The investigation found that Petitioner billed for rides that were canceled, billed for rides without prior authorization, and billed for rides that had no corresponding covered medical service.  Id.  The overpayments were identified as follows:  $543.30 on September 15, 2020 and $5,494.20 between October 6, 2020 and March 30, 2021.  Id.  Petitioner did not challenge the findings and returned the payments.  Id. 

1. 2. Petitioner’s Guilty Plea and IG Exclusion

After an investigation of the Fahan overpayments, Petitioner was charged with two counts of Theft by False Representation.  IG Ex. 2 at 9.  On August 1, 2024, Petitioner entered a guilty plea to one count of the offense of Theft by False Representation in violation of Minn. Stat. § 609.52.2(a)(3)(iii).  IG Ex. 4 at 1.  His plea was accepted and on August 21, 2024, the District Court Judge sentenced Petitioner to probation and community service, and prohibited Petitioner from working in any capacity with Medicaid and Medicare funds.  Id. at 1-2.  Petitioner’s offense disposition is noted as “Stay of Adjudication” in the terms of disposition or sentence, and Petitioner’s sentence was said to be dismissed upon successful completion of probation.  Id. at 1. 

On November 29, 2024, the IG notified Petitioner that he was being excluded from participation in all Federal health care programs for the minimum period of five years.  IG Ex. 1 at 1.  The IG excluded Petitioner under section 1128(a)(1) of the Act because of his conviction in the State of Minnesota, District Court, 3rd Judicial District, Steele County, of felony Theft by False Representation.  Id. 

VI. Legal Authorities

The Secretary of the United States Department of Health and Human Services shall exclude an individual from participation in Medicare, Medicaid, and all other federally funded health care programs if that individual has been convicted of a criminal offense related to the delivery of an item or service under title XVIII or any State health care program.  42 U.S.C. § 1320a-7(a)(1).  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 exclusion cases, the IG has the burden of proving the basis for the exclusion and the existence of any aggravating factors.  42 C.F.R. § 1005.15(c); Standing Pre-Hearing Order ¶ 7.  Petitioner has the burden of proving any affirmative defenses or factors to mitigate the length of the exclusion, if aggravating factors have been established.  42 C.F.R. § 1001.102(c); Standing Pre-Hearing Order ¶ 7.  The standard of proof is a preponderance of the evidence, which means a fact is proven if the evidence shows that it 

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is more likely true than not true.  42 C.F.R. §§ 1001.2007(c), 1005.15(d).  In this case, the IG must prove that Petitioner was convicted of an offense related to the delivery of a health care item or service under Medicare or a State health care program. 

An excluded individual may request a hearing before an ALJ, but only on the issues of whether the IG had a basis for the exclusion and whether an exclusion longer than the required minimum period is unreasonable in light of any applicable aggravating and mitigating factors.  42 C.F.R. §§ 1001.2007(a), 1005.2(a). 

VII. Analysis and Conclusions of Law

1. 1. Petitioner was convicted of a criminal offense related to the delivery of a health care item or service under the Medicaid program, which subjects him to a mandatory exclusion from all federal health care programs for a minimum of five years.

In order to prevail, the IG must prove that Petitioner was convicted of a criminal offense related to the delivery of a health care item or service.  Under the Act, an individual is considered to have been convicted of a criminal offense “when a judgment of conviction has been entered against the individual or entity by a Federal, State, or local court, regardless of whether there is an appeal pending or whether the judgment of conviction or other record relating to the criminal record has been expunged” and “when the individual or entity has entered into participation in a first offender, deferred adjudication, or other arrangement or program where judgment of conviction has been withheld.”  Act § 1128(i)(1), (4) (42 U.S.C. § 1320a-7(i)(1), (4)); see also 42 C.F.R. § 1001.2 (paragraphs (a) and (d) under the definition of “Convicted”).  The evidence shows that Petitioner entered a guilty plea to Theft by False Representation on August 1, 2024.  Petitioner argues that a stay of adjudication is not a conviction under Minnesota Law.  P. Br. at 2. 

Petitioner’s argument that the stay of adjudication does not qualify as a conviction under the Act is incorrect.  Petitioner entered a guilty plea but any conviction was stayed should he successfully complete probation.  However, the Departmental Appeals Board (Board) and federal courts have consistently found such arrangements establish that an individual is found to be convicted within the broad definition of that term in the Act.  See Olandis Moore, DAB No. 2963 at 4-5 (2019) (citing Michael S. Rudman, M.D., DAB No. 2171 at 6-7 (2008)), aff’d, Rudman v. Leavitt, 578 F. Supp. 2d 812 at 815 (D. Md. 2008) (holding “probation before judgment” amounted to a deferred adjudication arrangement whereby judgment of conviction was withheld); Leon Brown, M.D., DAB No. 1208 at 2 (1990) (finding conviction within the meaning of the Act where the petitioner “specifically agreed to an arrangement whereby the judge stayed entry of judgment and placed [him] on probation for three years, with the balance of the probation to be suspended after [he] had made restitution . . .”).  Therefore, Petitioner was convicted 

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within the meaning of section 1128(i)(4) of the Act once he pled guilty and entered into an arrangement to serve one year of probation in lieu of the imposition of judgment.  

Next, to prove that Petitioner’s conviction was related to the delivery of a health care item or service, the IG must show that there is a nexus between the offense and the delivery of a health care item or service.  The Board has repeatedly held that the phrase “related to” within the context of section 1128(a)(1) requires only that a common‑sense nexus exist between the offense and the delivery of a health care item or service.  Summit S. Shah, M.D., DAB No. 2836 at 6 (2017) (citing cases).  In determining whether Petitioner’s conviction is related to the delivery of a health care item or service, I must look beyond the conditions of the plea that Petitioner entered and analyze the facts and circumstances of the underlying conviction. 

The Board has long held that an ALJ is free to look beyond the narrow constructs of a state’s criminal statutes.  Narendra M. Patel, M.D., DAB No. 1736 at 10 (2000) (Congress did not intend to limit the IG’s exclusion authority through “dependence on the vagaries of state criminal law definitions or record development”); Berton Siegel, D.O., DAB No. 1467 at 4 (1994) (“[i]t is not the labeling of the offense under the state statute which determines whether the offense is program-related”).  Moreover, when determining whether an exclusion is warranted, an ALJ may look at “evidence as to the nature of an offense” such as “facts upon which a conviction was predicated.”  Siegel at 4; Michael S. Rudman, M.D., DAB No. 2171 at 9 (2008) (an ALJ may consider “evidence regarding the nature of the offense, rather than the state’s labeling of the admitted offense”), aff’d sub nom. Rudman v. Leavitt, 578 F. Supp. 2d 812 (D. Md. 2008). 

In this case, Petitioner’s fraudulent conduct occurred through his NEMT business.  As owner of Fahan, it was Petitioner’s responsibility to provide transportation for authorized services and submit claims for reimbursement from the Minnesota Medicaid program.  IG Ex. 2 at 4.  However, Petitioner submitted claims for reimbursement for transportation he did not provide and for transportation that was not authorized.  Id. 

The total loss to the Minnesota Medicaid program as a result of Petitioner’s schemes amounted to $5,494.20.  IG Ex. 2 at 4; IG Ex. 4 at 11.  The Board has ruled and Federal courts have “held that crimes which occur when services are billed to Medicare or Medicaid are included among those crimes which are related to the delivery of items or services under Medicare or Medicaid.”  Paul R. Scollo, D.P.M., DAB No. 1498 at 10 (1994) (citing Greene v. Sullivan, 731 F. Supp. 835 (E.D. Tenn. 1990) and Travers v. Sullivan, 791 F. Supp. 1471 (E.D. Wash. 1992)).  Petitioner pled guilty to Theft by False Representation and the underlying facts of the case clearly demonstrate that Petitioner’s 

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conviction is related to the delivery of a health care item or service under the Medicaid program. 

1. 2. Because it has been determined that Petitioner was convicted of a criminal offense related to the delivery of a health care item or service under the Medicaid program, a five-year exclusion must be imposed.

In appeals of mandatory exclusions, ALJs are restricted to considering whether there is a basis for exclusion, as described above, and whether the period of exclusion is reasonable.  42 C.F.R. § 1001.2007(a)(1).  However, where the IG imposes the mandatory minimum exclusion of five years, “the exclusion’s length is reasonable as a matter of law, and the excluded individual may request a hearing only on the issue” of whether there is a basis for exclusion.  Diane Marie Krupka a/k/a Diane Marie Salak, DAB No. 3020 at 2 (2020); 42 C.F.R. § 1001.2007(a)(2). 

Because it is determined that there is a basis for Petitioner’s exclusion, the mandatory minimum five-year exclusion must be upheld. 

VIII. Conclusion

The IG has proven by a preponderance of the evidence that Petitioner was 1) convicted of a criminal offense; and 2) the offense was committed in connection with the delivery of a health care item or service.  Therefore, Petitioner shall be excluded from participating in Medicare, Medicaid, and other federal health care programs for the mandatory five-year period.  The five-year exclusion imposed by the IG is AFFIRMED.