Mehmood A. Afzal, DAB CR6713 (2025)

DECISION

Petitioner, Mehmood A. Afzal, is excluded from participating in Medicare, Medicaid, and all federal health care programs pursuant to section 1128(a)(1) of the Social Security Act (Act) (42 U.S.C. § 1320a-7(a)(1)), effective September 19, 2024.  There is a basis for exclusion.  Petitioner’s exclusion for a minimum of five years is required by section 1128(c)(3)(B) of the Act (42 U.S.C. § 1320a-7(c)(3)(B)).  An additional exclusion of nine years, for a total minimum exclusion of 14 years,1 is not unreasonable based upon the existence of two aggravating factors and no mitigating factors. 

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I. Background

The Inspector General (IG) of the U.S. Department of Health and Human Services notified Petitioner by letter dated August 30, 2024, that he was excluded from participation in Medicare, Medicaid, and all federal health care programs for 19 years.  The IG cited section 1128(a)(1) of the Act as the basis for Petitioner’s exclusion.  The IG stated that the exclusion was based on Petitioner’s conviction in the Circuit Court for Frederick County, Maryland (state court), of a criminal offense related to the delivery of an item or service under Medicare or a state health care program.  The IG notified Petitioner that the IG extended the mandatory five-year exclusion to 19 years because Petitioner’s acts, that resulted in his conviction, were intended to cause or caused a financial loss of $50,000 or more to a government agency or program or one or more other entities, and the acts for which Petitioner was convicted were committed over one year or more.  IG Exhibit (Ex.) 1 at 1.  The IG notified Petitioner on November 19, 2024, that his period of exclusion was reduced from 19 years to 14 years.  IG Ex. 2. 

Petitioner requested a hearing by letter dated October 31, 2024, that was postmarked November 1, 2024.  On November 13, 2024, the case was assigned to me to hear and decide.  I convened a telephone prehearing conference on December 17, 2024, the substance of which is memorialized in my Prehearing Conference Order and Schedule for Filing Briefs and Documentary Evidence issued on December 20, 2024 (Prehearing Order).2 

The IG filed a motion for summary judgment and supporting memorandum on January 23, 2025 (IG Br.) with IG Exs. 1 through 6.  On May 15, 2025, Petitioner filed a response in opposition to the IG motion (P. Br.).  Petitioner also requested summary judgment in his favor reducing the period of exclusion to five years.  Petitioner filed no exhibits for my consideration.  The IG waived filing a reply brief on May 16, 2025. 

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Petitioner did not object to my consideration of IG Exs. 1 through 6, and they are admitted as evidence. 

II. Discussion

A. Applicable Law

Section 1128(f) of the Act (42 U.S.C. § 1320a-7(f)) establishes Petitioner’s right to a hearing by an administrative law judge (ALJ) and judicial review of the final action of the Secretary of Health and Human Services (the Secretary). 

Pursuant to section 1128(a)(1) of the Act, the Secretary must exclude from participation in any federal health care program any individual 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.  A state health care program includes a state Medicaid program.  Act § 1128(h) (42 U.S.C. § 1320a-7(h)).  

Pursuant to section 1128(i) of the Act (42 U.S.C. § 1320a-7(i)), an individual is convicted of a criminal offense when:  (1) a judgment of conviction has been entered against him or her in a federal, state, or local court whether an appeal is pending or the record of the conviction is expunged; (2) there is a finding of guilt by a court; (3) a plea of guilty or no contest is accepted by a court; or (4) the individual has entered into any arrangement or program where judgment of conviction is withheld.  The Secretary has promulgated regulations implementing these provisions of the Act.  42 C.F.R. § 1001.101(a), (c).3 

Exclusion for a minimum period of five years is mandatory for any individual or entity convicted of a criminal offense for which exclusion is required by section 1128(a) of the Act.  Act § 1128(c)(3)(B) (42 U.S.C. § 1320a-7(c)(3)(B)).  Pursuant to 42 C.F.R. § 1001.102(b), an individual’s period of exclusion may be extended based on the presence of specified aggravating factors.  Only if the aggravating factors justify an exclusion of longer than five years, however, are mitigating factors considered as a basis for reducing the period of exclusion to no fewer than five years.  42 C.F.R. § 1001.102(c). 

In this proceeding, the standard of proof is a preponderance of the evidence.  42 C.F.R. § 1001.2007(c).  Petitioner bears the burden of proof and the burden of persuasion on any affirmative defenses or mitigating factors, and the IG bears the burden on all other issues.

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42 C.F.R. § 1005.15(b), (c); Prehearing Order ¶ 4.  There may be no collateral attack of the conviction that is the basis for the exclusion.  42 C.F.R. § 1001.2007(d).

B. Issues

The Secretary has by regulation limited my scope of review to two issues:  

Whether the IG has a basis for excluding Petitioner from participating in Medicare, Medicaid, and all other federal health care programs; and

Whether the length of the exclusion is unreasonable. 

42 C.F.R. § 1001.2007(a)(1). 

C.  Findings of Fact, Conclusions of Law, and Analysis

My conclusions of law are set forth in bold text followed by my findings of fact and analysis.  

1.  Petitioner timely filed his request for hearing, and I have jurisdiction. 

There is no dispute that Petitioner’s request for hearing was timely filed.  I conclude that I have jurisdiction pursuant to section 1128(f) of the Act and 42 C.F.R. pt. 1005. 

2.  Summary judgment is appropriate. 

The IG and Petitioner have both requested summary judgment in their favor. 

Pursuant to section 1128(f) of the Act, a person subject to exclusion has a right to reasonable notice and an opportunity for a hearing.  The Secretary has provided by regulation that a sanctioned party has the right to a hearing before an ALJ, and both the sanctioned party and the IG have the right to participate in the hearing.  42 C.F.R. §§ 1005.2-.3.  Either or both parties may choose to waive appearance at an oral hearing and to submit only documentary evidence and written argument for my consideration.  42 C.F.R. § 1005.6(b)(5).  An ALJ may also resolve a case, in whole or in part, by summary judgment.  42 C.F.R. § 1005.4(b)(12). 

Summary judgment is appropriate in an exclusion case when there are no disputed issues of material fact and when the undisputed facts, which are clear and not subject to conflicting interpretation, demonstrate that one party is entitled to judgment as a matter of law.  Tanya A. Chuoke, R.N., DAB No. 1721 (2000); David A. Barrett, DAB No. 1461 (1994); Robert C. Greenwood, DAB No. 1423 (1993); Thelma Walley, DAB No. 1367

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(1992); Catherine L. Dodd, R.N., DAB No. 1345 (1992); John W. Foderick, M.D., DAB No. 1125 (1990).  When the undisputed material facts of a case support summary judgment, there is no need for a full evidentiary hearing, and neither party has the right to one.  Surabhan Ratanasen, M.D., DAB No. 1138 (1990); Foderick, DAB No. 1125.  In opposing a properly supported motion for summary judgment, the nonmovant must allege facts that show there is a genuine dispute of material fact that affects the proponent’s prima facie case or that might establish a defense.  The nonmovant may not rely upon mere allegations or denials to defeat a properly supported motion for summary judgment.  To defeat a properly supported motion for summary judgment and proceed to a trial, the nonmovant must show there is a genuine dispute as to a material fact that requires determination by the fact finder.  On summary judgment, the judge does not weigh the evidence or attempt to determine the truth.  Rather, the judge accepts the nonmovant’s evidence as true and draws all permissible inferences in the nonmovant’s favor.  Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-57 (1986). 

There are no genuine issues of material fact in dispute in this case.  Petitioner does not dispute that he was convicted and that he is subject to mandatory exclusion pursuant to section 1128(a)(1) of the Act for the minimum period of five years.  Petitioner disputes the existence of the two aggravating factors the IG relied upon to extend Petitioner’s period of exclusion to 14 years, but his arguments must be resolved against him as a matter of law.  Petitioner argues that exclusion for more than the minimum period of five years is unreasonable because the aggravating factors should have been weighed differently, there are mitigating factors that were not considered, and there are genuine disputes of fact related to the mitigating factors.  P. Br.  Petitioner’s arguments must be resolved against him as matters of law.  I conclude that summary judgment for the IG is appropriate. 

3.  Section 1128(a)(1) of the Act requires Petitioner’s exclusion from participation in Medicare, Medicaid, and all other federal health care programs.  

a.  Facts

The parties were advised by my Prehearing Order ¶ 8 that on summary judgment a fact alleged and not specifically denied may be accepted as true and all evidence will be considered admissible and true absent specific objection to admissibility or accuracy.  The material facts are undisputed. 

On December 17, 2021, Petitioner was charged by a grand jury in the state court with one misdemeanor count of conspiracy to defraud Maryland Medicaid, one felony count of defrauding Maryland Medicaid, one felony count of a scheme to commit felony theft from Maryland Medicaid, and one felony count of a scheme to commit identity fraud in

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connection with theft from Maryland Medicaid.  All counts were alleged as violations of Maryland law.  IG Ex. 6.  

On November 28, 2023, Petitioner signed an agreement to plead guilty to the charge of Medicaid fraud.  IG Ex. 3.  As part of his plea agreement, Petitioner admitted that the total fraud amounted to $575,122.40.  Petitioner agreed that he would be jointly and severally liable with his convicted co-defendants for restitution of $575,122.40 and a civil money penalty of the same amount.  IG Ex. 3 at 1-2.  Petitioner admitted that he and his co-defendants knowingly and willfully submitted fraudulent claims to Maryland Medicaid and the District of Columbia Medicaid causing $575,122.40 to be paid.  IG Ex. 3 at 9.  Petitioner admitted in his plea agreement that the fraud began in January 2015 and continued through September 2019.  IG Ex. 3 at 4. 

Petitioner was convicted of the felony count of defrauding Maryland Medicaid and sentenced on March 15, 2024, to five years in the Maryland Department of Corrections which was suspended, three years of probation, restitution of $575,122.40 for which he had joint and several liability with his convicted co-defendants and that was satisfied as of the date of judgment, and a civil money penalty of $575,122.40 for which he was also jointly and severally liable with his convicted co-defendants.  IG Exs. 4-5. 

b.  Analysis

The IG cites section 1128(a)(1) of the Act as the basis for Petitioner’s mandatory exclusion.  The statute provides in relevant part: 

(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.  

Act § 1128(a)(1). 

Congress has, by the plain language of section 1128(a)(1) of the Act, required the Secretary to exclude from participation in Medicare, Medicaid, and all federal health care programs any individual or entity:  (1) convicted of a criminal offense, whether a misdemeanor or felony; (2) where the offense is related to the delivery of an item or

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service; and (3) the delivery of the item or service was under Medicare or a state health care program.  

The elements that trigger an exclusion under section 1128(a)(1) of the Act are triggered in this case.  Petitioner does not dispute in his brief that when his guilty plea was accepted and judgment was entered, he was convicted within the meaning of the Act.4  Act § 1128(i)(1)-(3).  Petitioner does not dispute that the charge of which he was convicted clearly alleged he and his co-defendants defrauded Maryland Medicaid.  Petitioner also admitted as part of his plea agreement that he and his co-defendants were paid $575,122.40 by Maryland Medicaid and the District of Columbia Medicaid for fraudulent claims.  IG Ex. 3 at 1, 9.  I conclude, based on the undisputed facts, that there is a common-sense connection or nexus between Petitioner’s health care fraud and the delivery of an item or service under Maryland Medicaid.  Saadite A. Green, DAB No. 2940 at 6-7 (2019) (and cases cited therein). 

Accordingly, I conclude that all elements that trigger mandatory exclusion pursuant to section 1128(a)(1) of the Act are satisfied and the IG has a basis to exclude Petitioner.  Because I have found that there is a basis for Petitioner’s exclusion pursuant to section 1128(a)(1) of the Act, Congress has mandated his exclusion.  Neither the IG nor I have any discretion not to exclude Petitioner in this case as we are both bound to follow the federal statutes and regulations.  42 C.F.R. § 1005.4(c)(1). 

4.  Pursuant to section 1128(c)(3)(B) of the Act, a five-year period of exclusion is mandatory. 

I have concluded that there is a basis to exclude Petitioner pursuant to section 1128(a)(1) of the Act.  Therefore, the IG must exclude Petitioner for a minimum period of five years pursuant to section 1128(c)(3)(B) of the Act.  The IG has no discretion to impose a lesser period, and I may not reduce the period of exclusion to fewer than five years. 

Petitioner does not dispute that he was subject to mandatory exclusion.  But he argues that the length of exclusion beyond the five-year mandatory minimum was unreasonable and “did not take into account relevant and applicable factors.”  P. Br. at 1. 

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The remaining issue is whether it is unreasonable to extend Petitioner’s exclusion by an additional nine years.  My determination of whether the period of exclusion in this case is unreasonable turns on whether: (1) the IG has proven that there are aggravating factors; (2) Petitioner has proven that the IG considered an aggravating factor that does not exist or that there are mitigating factors that the IG failed to consider; and (3) the period of exclusion is within a reasonable range. 

5.  Two aggravating factors authorized by 42 C.F.R. § 1001.102(b) are present that justify extending the minimum period of exclusion to 14 years.  

Petitioner argues that there are no aggravating factors in this case that permit the IG to extend the period of exclusion from five years to 14 years.  P. Br. at 3-4.  But, contrary to Petitioner’s argument, the undisputed facts establish two aggravating factors. 

The IG notified Petitioner that two aggravating factors are present in this case that justify an exclusion of more than five years: 

1.  Petitioner’s acts that resulted in his conviction, or similar acts, caused or were intended to cause, a financial loss to a government agency or program of $50,000 or more. 

2.  The acts for which Petitioner was convicted occurred over a period of one-year or more. 

IG Ex. 1 at 1.  I conclude that each aggravating factor is established by undisputed facts. 

Petitioner does not dispute that the state court ordered the payment of restitution of $575,122.40 to Medicaid, an amount for which Petitioner was jointly and severally liable with his convicted co-defendants.  IG Ex. 4.  The Board has previously accepted that an amount ordered as restitution constitutes proof of the amount of financial loss.  Jeremy Robinson, DAB No. 1905 at 11 (2004); Craig Richard Wilder, DAB No. 2416 at 9 (2011); Juan de Leon, Jr., DAB No. 2533 at 5 (2013); Laura Leyva, DAB No. 2704 at 9 (2016).  Petitioner also admitted as part of his plea agreement that he and his co-defendants knowingly and willfully caused Maryland Medicaid and the District of Columbia Medicaid to pay $575,122.40 in fraudulent claims.  IG Ex. 3 at 9.  I conclude that the undisputed evidence establishes the existence of the first aggravating factor established by 42 C.F.R. § 1001.102(b)(1). 

Petitioner argues that even though he was held jointly and severally liable for the restitution imposed by the state court, his personal involvement in the fraud was nil; his role was generating new clients and maintaining existing clients; and he was not involved in the wrongdoing in this case.  P. Br. at 2-3.  I accept Petitioner’s assertions as true for

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purposes of summary judgment.  But Petitioner’s assertions do not negate the existence of the aggravating factor.  Moreover, as discussed in greater detail later, if aggravating factors exist, an ALJ may not substitute his or her judgment for that of the IG and may only change the period of exclusion in limited circumstances.  Juan de Leon, Jr., DAB No. 2533 at 4-5; Craig Richard Wilder, DAB No. 2416 at 8.  Even though Petitioner’s involvement in the Medicaid fraud may have been limited, he pleaded guilty to the offense and agreed to pay restitution more than 10 times the $50,000 amount necessary to establish the existence of the aggravating factor under 42 C.F.R. § 1001.102(b)(1).  Even if I could reweigh the aggravating factor, I would conclude that it reflects a serious offense against Medicaid no matter how minimal Petitioner’s involvement in perpetrating the fraud. 

Petitioner does not dispute and admitted as part of his plea agreement that the criminal conduct for which he was charged and found guilty occurred from about January 2015 through September 2019, a period of more than a year.  IG Ex. 3 at 4.  I conclude that the aggravating factor established by 42 C.F.R. § 1001.102(b)(2) is shown by the undisputed evidence. 

6.  Petitioner has not met his burden to establish by a preponderance of the evidence a mitigating factor authorized by 42 C.F.R. § 1001.102(c). 

If any of the aggravating factors authorized by 42 C.F.R. § 1001.102(b) justify an exclusion of longer than five years, as they do in this case, then mitigating factors may be considered as a basis for reducing the period of exclusion to no less than five years.  42 C.F.R. § 1001.102(c).  The IG did not list, and therefore did not consider, any mitigating factors in deciding to extend Petitioner’s exclusion to 14 years.  IG Exs. 1 at 1-2. 

The only mitigating factors that I am authorized to consider are listed in 42 C.F.R. § 1001.102(c): 

(1)  In the case of an exclusion under § 1001.101(a), whether the individual or entity was convicted of three or fewer misdemeanor offenses and the entire amount of financial loss (both actual loss and intended loss) to Medicare or any other Federal, State, or local governmental health care program due to the acts that resulted in the conviction, and similar acts, is less than $5,000;

(2)  The record in the criminal proceedings, including sentencing documents, demonstrates that the court determined that the individual had a mental, emotional or

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physical condition before or during the commission of the offense that reduced the individual’s culpability; or

(3)  The individual’s or entity’s cooperation with Federal or State officials resulted in –

(i)  Others being convicted or excluded from Medicare, Medicaid and all other Federal health care programs,

(ii)  Additional cases being investigated or reports being issued by the appropriate law enforcement agency identifying program vulnerabilities or weaknesses, or

(iii)  The imposition against anyone of a civil money penalty or assessment under part 1003 of this chapter.  

Petitioner has the burden to prove by a preponderance of the evidence that there is a mitigating factor for me to consider.  42 C.F.R. § 1005.15(c); Prehearing Order ¶ 4.  

Petitioner argues he was not incarcerated; he had no prior criminal history; he had no prior adverse actions or sanctions (which I infer refers to administrative actions); and no patient harm allegedly occurred.  Petitioner also argues his involvement in the business was generating new clients and maintaining existing clients; he was not involved in billing; and had no knowledge of the fraudulent activity occurring in the business.  Petitioner argues he has a degree in neuroscience from Johns Hopkins University; he started the Pediacare program, which provided education on best nebulizer practices helping reduce child hospital visits.  Due to his exclusion, Petitioner is unable to work in neuroscience.  He is very intelligent with a passion for neuroscience.  Petitioner works as an investment trader but cannot trade on some popular trading platforms due to his exclusion.  Petitioner is also heavily involved in charity work promoting children’s education including raising funds and building schools in Senegal and Haiti.  P. Br. at 2-4.  I accept all Petitioner’s assertions as true for purposes of summary judgment.  But not one of Petitioner’s asserted mitigating factors is a mitigating factor that the IG or I am authorized to consider under 42 C.F.R. § 1001.102(c).  Therefore, Petitioner has failed to meet his burden to show the existence of a mitigating factor.  I conclude that Petitioner has failed to show any genuine dispute that there is a mitigating factor that may be considered under 42 C.F.R. § 1001.102(c) that the IG failed to consider, even if I accept his allegations as true for purposes of summary judgment. 

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Petitioner argues that the period of exclusion is excessive, unsupported, and denies him the opportunity to work in his chosen field.  P. Br. at 2-4.  Petitioner’s argument could be construed to be that his 14-year exclusion is a cruel and unusual punishment that violates the Constitutional prohibition of such punishment.  U.S. Const. amend. VIII.  Exclusions imposed by the IG are civil sanctions, remedial in nature and not punitive and criminal.  Because exclusions are remedial sanctions, they do not violate the double jeopardy clause or the prohibition against cruel and unusual punishment.  Manocchio v. Kusserow, 961 F.2d 1539 (11th Cir. 1992); Greene v. Sullivan, 731 F. Supp. 838 (E.D. Tenn. 1990); Joann Fletcher Cash, DAB No. 1725 (2000); Douglas Schram, R.Ph., DAB No. 1372 (1992); and Janet Wallace, L.P.N., DAB No. 1326 (1992).5   Arguments that the exclusion provisions are anything but remedial have been found to be without merit.  Manocchio, 961 F.2d at 1541-42; Greene, 731 F. Supp. at 839-40.  Many federal courts have also rejected claims that the Secretary’s exclusion procedures amount to a deprivation of due process, finding no constitutionally protected property or liberty interests.  Rodabaugh v. Sullivan, 943 F.2d 855 (8th Cir. 1991); Lavapies v. Bowen, 883 F.2d 465 (6th Cir. 1989); Hillman Rehab. Ctr. v. U.S. Dep’t. of Health & Human Servs., No. 98-3789 (GEB), slip op. at 16, 1999 WL 34813783, at 16 (D.N.J. May 13, 1999); Travers v. Sullivan, 801 F. Supp. 394, 404‑05 (E.D. Wash. 1992), aff’d, Travers v. Shalala, 20 F.3d 993 (9th Cir. 1994).  Accordingly, I conclude that Petitioner’s possible constitutional arguments are without merit. 

The effective date of exclusion is 20 days after the date of the IG’s notice of exclusion.  42 C.F.R. § 1001.2002(b). 

7.  Exclusion for 14 years is not unreasonable in this case.  

The regulation states that the ALJ must determine whether the length of exclusion is “unreasonable.”  42 C.F.R. § 1001.2007(a)(1).  The Board, however, has made clear that the role of the ALJ in exclusion cases is to conduct a de novo review of the facts related to the basis for the exclusion and the existence of aggravating and mitigating factors identified at 42 C.F.R. § 1001.102 and to determine whether the period of exclusion imposed by the IG falls within a reasonable range.  Juan de Leon, Jr., DAB No. 2533 at

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4-5; Craig Richard Wilder, DAB No. 2416 at 8; Joann Fletcher Cash, DAB No. 1725 at 17 n.6.  The Board has explained that, in determining whether a period of exclusion is “unreasonable,” the ALJ is to consider whether such period falls “within a reasonable range.”  Cash, DAB No. 1725 at 17 n.6.  The Board cautions that whether the ALJ thinks the period of exclusion is too long or too short is not the issue.  The ALJ may not substitute his or her judgment for that of the IG and may only change the period of exclusion in limited circumstances.  Juan de Leon, Jr., DAB No. 2533 at 4-5; Craig Richard Wilder, DAB No. 2416 at 8. 

In John (Juan) Urquijo, DAB No. 1735 (2000), the Board made clear that, if the IG considers an aggravating factor to extend the period of exclusion and that factor is not later shown to exist on appeal, or if the IG fails to consider a mitigating factor that is shown to exist, then the ALJ may make a decision as to the appropriate extension of the period of exclusion beyond the minimum.  In Gary Alan Katz, R.Ph., DAB No. 1842 (2002), the Board suggested that when it is found that an aggravating factor considered by the IG is not proved before the ALJ, then some downward adjustment of the period of exclusion should be expected absent some circumstances that indicate no such adjustment is appropriate.  Thus, the Board has by these various prior decisions significantly limited my authority under the applicable regulation to judge the unreasonableness of the period of exclusion.  

Based on my de novo review, I conclude that a basis for the exclusion exists and that the undisputed evidence established the two aggravating factors the IG considered in determining to impose the 14-year exclusion.  Petitioner has not presented evidence that shows a genuine dispute that the IG failed to consider a mitigating factor authorized by 42 C.F.R. § 1001.102(c) or considered an aggravating factor authorized by 42 C.F.R. § 1001.102(b) that did not exist.  I conclude that a period of exclusion of 14 years is in a reasonable range and not unreasonable considering the existence of two aggravating factors and no mitigating factors.  Accordingly, no basis exists for me to reassess the period of exclusion. 

III.   Conclusion

For the foregoing reasons, Petitioner is excluded from participation in Medicare, Medicaid, and all other federal health care programs for a minimum period of 14 years, effective September 19, 2024.