Ester N. Mbaya, DAB CR6756 (2025)

DECISION

I affirm the 22-year exclusion of Petitioner, Ester N. Mbaya, from participation in all federal health care programs.

I.  Background and Procedural History

In an April 30, 2025 notice, the Inspector General (IG) of the United States Department of Health and Human Services excluded Petitioner from participation in all federal health care programs under section 1128(a)(1) of the Social Security Act (42 U.S.C. § 1320a-7(a)(1)) for 25 years due to her felony conviction in the United States District Court for the Middle District of Pennsylvania (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 identified four aggravating factors to lengthen the exclusion from the statutorily required minimum 5 years to 25 years:

• The IG alleged that the District Court ordered Petitioner to pay approximately $3,349,500 in restitution.

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• The IG alleged that the acts that resulted in the conviction, or similar acts, occurred from about January 2018 to about June 2020.
• The IG alleged that the District Court sentenced Petitioner to 41 months of incarceration.
• The IG alleged that Petitioner was also convicted of another offense besides the one that formed the basis for the exclusion, i.e., bank fraud.

Finally, the notice stated that the exclusion would take effect 20 days after the date on the notice.  IG Ex. 1 at 1.

Petitioner timely requested a hearing to dispute the length of the exclusion.  On May 20, 2025, the Civil Remedies Division acknowledged receipt of the hearing request, gave notice of a telephonic prehearing conference, and issued my Standing Order and the Civil Remedies Division Procedures (CRDP).  On June 18, 2025, I held a telephonic prehearing conference with the parties, the substance of which is summarized in my June 18, 2025 Order Following Prehearing Conference and Setting Schedule for Prehearing Submissions.

On June 23, 2025, the IG issued a notice that the IG was reducing the length of exclusion to 22 years based on a factual error in the original exclusion notice.  The amount of court-ordered restitution was approximately $2,763,600 and not $3,349,500.  IG Ex. 2; see also 42 C.F.R. § 1001.2001(e).

On July 9, 2025, the IG submitted a prehearing exchange consisting of a brief (IG Br.) and six proposed exhibits (IG Exs. 1-6).  On July 28, 2025, Petitioner submitted a brief (P. Br.) and a document entitled Written Testimony of Ester N. Mbaya (Written Testimony).  Petitioner stated that she wanted to testify in this proceeding as well as offer the testimony of a "family member."  P. Br. at 5.  The IG filed a reply brief (IG Reply), and Petitioner filed a sur-reply (P. Sur-Reply).

II.  Admission of Exhibits

I admit IG Exhibits 1 through 6 into the record, without objection.  Standing Order ¶ 13; see 42 C.F.R. § 1005.8(c).  Petitioner did not offer any marked exhibits.

III.  Decision on the Written Record

Consistent with 42 C.F.R. § 1005.16(b) and CRDP § 16(b), I required the parties to file written direct testimony from all witnesses, except for expert witnesses or witnesses from whom written direct testimony could not be obtained.  Standing Order ¶ 11.  I specified

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that the written direct testimony must be a proposed exhibit that is properly marked and in the form of an affidavit (i.e., under oath) or a declaration made under penalty of perjury.  Standing Order ¶¶ 8(e), 10-11; CRDP § 19(b).

In this case, the IG does not have any witness testimony to offer and does not believe that an in-person hearing is necessary to decide this case.  IG Br. at 7.

Petitioner states that she wants to present her testimony and that of an unnamed family member.  P. Br. at 4-5.  Petitioner described her testimony as discussing her rehabilitation, caregiving responsibilities, and intent not to re-enter a role related to federally funded health care.  P. Br. at 4.  Consistent with this, Petitioner's document with her written testimony indicates that she:  cooperated with authorities since her guilty plea; accepted the legal consequences of her actions without resistance; has no intention of returning to any role involving federally funded health care programs or participating in any setting that "touches Medicare or Medicaid reimbursement"; is the sole provider and caregiver for her elderly mother; has never harmed a patient; has no history of professional misconduct; and only engaged in criminal conduct "under exceptional personal and financial stress, not from an intent to exploit vulnerable populations or defraud systems."  Written Testimony at 1.  Petitioner described the testimony of her family member as involving "the hardship imposed on dependent relatives and household due to prolonged exclusion."  P. Br. at 5.

The IG objected to Petitioner's testimony and that of the unnamed family member as irrelevant.  IG Reply at 4.  Petitioner disagreed, citing Mohamed Basel Aswad, M.D., DAB No. 2741 (2016), for the proposition that "the ‘overarching consideration' [as to the length of exclusion] is the degree of untrustworthiness and the period necessary to protect programs," which includes evidence of rehabilitation, changed circumstances, voluntary career exit during the exclusion period, and readiness to comply in the future.  P. Sur-Reply at 3.

I exclude Petitioner's Written Testimony from the record because Petitioner did not comply with any of the requirements for admissible written direct testimony.  Petitioner did not properly mark the document as a proposed exhibit.  Further, and more importantly, Petitioner did not provide the Written Testimony in the form of a sworn affidavit or a declaration under penalty of perjury.  Witness testimony in these proceedings must be made under oath or affirmation, or as a declaration under penalty of perjury.  42 C.F.R. § 1005.16(a); see 28 U.S.C. § 1746.  I will not accept written testimony that fails to meet this basic requirement.

In addition, I will not hold a hearing to hear testimony from Petitioner's unnamed family member.  Petitioner did not submit written direct testimony for this person or, in the alternative, state why the written testimony could not be obtained and request a subpoena for that person's attendance at a hearing.  Standing Order ¶ 11.  Further, Petitioner did not

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provide the name of the family member, which contravenes the requirement that Petitioner submit a witness list.  42 C.F.R. § 1005.8(a); Standing Order ¶ 8(d); CRDP § 16(a).

Even if I were to consider Petitioner's Written Testimony and/or hear testimony from the unnamed family member, I would find it vague and, as the IG argues, irrelevant.  Petitioner's argument based on Aswad, summarized above, is actually taken from a different decision quoted in Aswad called Sushil Aniruddh Sheth, M.D., DAB No. 2491 (2012).  But Aswad explained that Sheth did not mean that the analysis as to the reasonableness of the length of exclusion could be based on facts outside of the aggravating and mitigating factors in the regulations, but rather must still be considered within the context of those factors.

Contrary to what Petitioner appears to suggest, the [Departmental Appeals] Board's decision in Sheth does not hold that general "trustworthiness" is an independent basis, i.e., independent from the specified aggravating and mitigating factors, for determining whether the period of an exclusion is unreasonable.

Aswad, DAB No. 2741 at 11.  Therefore, other than a vague statement that Petitioner cooperated with authorities after her guilty plea, the other matters she discusses in her Written Testimony, as well as the expected testimony for her family member, do not relate to a mitigating factor in the regulations.

Irrelevant evidence must be excluded in these proceedings.  42 C.F.R. § 1005.17(c); see also 5 U.S.C. § 556(d).  Therefore, Petitioner's Written Testimony must also be excluded as irrelevant, in addition to the other bases for exclusion provided above.

I informed the parties that:

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(d).  Because there is no admissible written direct testimony from any witnesses, I decide this case based on the written record.

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IV.  Issues

1. Whether the IG had a legitimate basis to exclude Petitioner from participation in all federal health care programs under 42 U.S.C. § 1320a-7(a)(1).
2. Whether a 22-year length of exclusion is unreasonable.

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 26, 2024, Petitioner signed a Plea Agreement in which Petitioner agreed to plead guilty to an Information not yet filed with the District Court, which charged Petitioner with health care fraud and bank fraud.  IG Ex. 3 at 1-2.
2. In the Plea Agreement, Petitioner agreed to pay restitution to:  the Pennsylvania Department of Human Services, Bureau of Program Integrity - $2,108,641.14; AmeriHealth Caritas - $168,179.28; Centene/Pennsylvania Health & Wellness - $308,788.27; UPMC Health Plan - $178,077.59; Presence Bank - $489,069.48; M&T Bank - $47,740.60; and Members 1st Federal Credit Union - $49,054.05.  IG Ex. 3 at 19-20.
3. On September 27, 2024, the United States Attorney's Office filed a two-count Information with the District Court charging Petitioner with Health Care Fraud in violation of 18 U.S.C. § 1347 and Bank Fraud in violation of 18 U.S.C. § 1956(h).  IG Ex. 6.
4. Count 1 of the Information charged Petitioner with a scheme, that lasted from in or around January 2018 until in or about June 2020, to defraud Medicaid by submitting or causing to be submitted fraudulent claims for reimbursement, which included:  requests for reimbursement for services that were not provided; requests for reimbursement for services that were inflated to reflect more service than was actually provided; and requests for reimbursement for services provided by personal care assistants who were fraudulently represented as eligible or available to provide services when they were not.  To carry this out, Count 1 alleged that Petitioner:  created and submitted claims for Medicaid reimbursement that falsely reported that that personal assistance services (PAS) were provided to Medicaid recipients; caused to be created false records in the electronic visit verification system to falsely show that PAS were provided by Petitioner's company, Cool Waters, LLC, to Medicaid recipients that were not provided; and manipulated

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payroll records to prevent payment for fraudulently entered shifts for PAS not worked by the identified employee.  IG Ex. 6 at 3-4.

5. Count 2 of the Information charged Petitioner with applying for loans from four financial institutions insured by the Federal Deposit Insurance Corporation using false records that showed Petitioner's income as greater than it actually was.  In July and August 2021, the financial institutions approved loans totaling $875,000.  Petitioner took funds from three of those institutions, which ultimately resulted in losses to these institutions of approximately $585,000.  IG Ex. 6 at 5-6.
6. On October 15, 2024, Petitioner pleaded guilty to the charges in the Information.   IG Ex. 4.
7. In a February 28, 2025 Judgment in a Criminal Case, the District Court stated that Petitioner pleaded guilty to Counts 1 and 2 of the Information and that Petitioner was adjudicated guilty of 18 U.S.C. § 1347 Health Care Fraud and 18 U.S.C. § 1344 Bank Fraud.  IG Ex. 5 at 1.
8. The District Court sentenced Petitioner to 41 months of imprisonment.  IG Ex. 5 at 2.
9. The District Court ordered Petitioner to pay restitution to the same entities and in the same amounts as stated in the Plea Agreement.  IG Ex. 5 at 6.

VII.  Conclusions of Law and Analysis

1. Petitioner was convicted of a criminal offense related to the delivery of an item or service under the Medicaid 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, such as Medicaid.1  42 U.S.C. § 1320a‑7(a)(1).

Petitioner admitted that she was convicted of a criminal offense for which exclusion is required.  P. Br. at 1-2.  My review of the record confirms that Petitioner is correct.

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Petitioner was convicted of a criminal offense because she pleaded guilty to a crime, the plea was accepted, and the District Court issued a judgment of conviction.  IG Exs. 2, 4-5; 42 U.S.C. § 1320a‑7(i)(1), (3).

In addition, Petitioner's criminal offense is related to the delivery of an item or service under the Medicaid 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 & Hum. Servs., 34 F. Supp. 2d 141, 143 (E.D.N.Y. 1998); see also Baxter v. Kennedy, 136 F.4th 70, 86 (4th Cir. 2025) (holding that mandatory exclusion under § 1320a-7(a)(1) means that the conviction must "merely . . . be related to . . . a delivery [of an item or service].  So there was no need to prove that [the excluded individual's company] shipped an item to an identified [Medicaid participant].  The causal chain that [the excluded individual] pleaded to–misbranding as an attempt to get [Medicaid] to cover [a new medication]–is more than enough."); 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 a conviction involving false claims submitted to the Medicaid program is "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 false 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 & Hum. 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).").

Because Petitioner was convicted of a criminal offense related to the delivery of an item or service under the Medicaid 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).

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3. The IG has proven that four 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 four aggravating factors listed in the regulations.  Further, Petitioner does not dispute that the aggravating factors identified by the IG exist in this case.  P. Br. at 2-3.

1. Petitioner admitted that she caused $2.7 million in loss to the Medicaid program and other related health care entities, and the District Court ordered that Petitioner pay restitution in that amount to the Pennsylvania Medicaid agency and related health care entities.

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 or to one or more entities of $50,000 or more.  42 C.F.R. § 1001.102(b)(1).  Specifically, Petitioner's health care fraud conviction resulted in an order of restitution that required repayment to the Pennsylvania state Medicaid agency and other health care related entities of approximately $2.7 million.  IG Ex. 5 at 6; IG Ex. 6 at 5-6.  Petitioner agrees with this amount of restitution.  P. Br. at 3.  It is well‑established that an amount ordered as restitution constitutes proof of the amount of financial loss to a government program.  See, e.g., Juan de Leon, Jr., DAB No. 2533 at 5 (2013); Jason Hollady, M.D., DAB No. 1855 (2002).  Therefore, I conclude IG proved this aggravating factor.

2. The District Court sentenced Petitioner to 41 months of incarceration.

The regulations provide the following as an aggravating factor:  "The sentence imposed by the court included incarceration."  42 C.F.R. § 1001.102(b)(5).  The District Court sentenced Petitioner to 41 months of incarceration.  IG Ex. 5 at 2.  Petitioner agrees that this is correct.  P. Br. at 3.  Therefore, I conclude that the IG proved this aggravating factor.

3. Petitioner's acts that resulted in conviction, or similar acts, were committed for more than one year.

The regulations provide the following as an aggravating factor:  "The acts that resulted in conviction, or similar acts, were committed over a period of one year or more."  42 C.F.R. § 1001.102(b)(2).  Count 1 of the Information alleged that Petitioner's scheme to commit health care fraud occurred from around January 2018 until in or about June 2020.  IG Ex. 6 at 4.  Petitioner pleaded guilty to that charge.  IG Ex. 4.  Further,

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Petitioner admitted that the criminal acts lasted approximately 2.5 years.  P. Br. at 3.  Therefore, I conclude that the IG proved this aggravating factor.

4. Petitioner has been convicted of another offense besides the one that formed the basis for the exclusion.

The regulations provide the following as an aggravating factor:  "The individual . . . has been convicted of other offenses besides those that formed the basis for the exclusion."  42 C.F.R. § 1001.102(b)(8).  Petitioner was charged with and pleaded guilty to Bank Fraud at the same time Petitioner was convicted of Health Care Fraud.  IG Ex. 4; I.G. Ex. 5 at 1; IG Ex. 6 at 5-6.  Petitioner appears to concede this by acknowledging a "second offense."  P. Br. at 3.  Therefore, I conclude that the IG proved this aggravating factor.

4. Petitioner did not prove the existence of any mitigating factors to reduce the length of exclusion imposed by the IG.

If there are aggravating factors that justify increasing the length of exclusion to exceed five years, then the length of exclusion can be reduced if certain mitigating factors listed in the regulations are present in a case.  42 C.F.R. § 1001.102(c).  Petitioner asserts several matters as mitigating, but only one listed in the regulations (i.e., cooperation with law enforcement authorities).  P. Br. at 3.  Petitioner has the burden to prove any mitigating factors that she alleges.  See Stacey R. Gale, DAB No. 1941 (2004); Standing Order ¶ 7.  For the reasons explained below, I conclude that the record does not support the existence of the alleged mitigating factor.

Petitioner claims that she cooperated with federal authorities.  P. Br. at 3.  To qualify as a mitigating factor, an excluded individual must show the following:

(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.

42 C.F.R. § 1001.102(c)(3).

While Petitioner alleges cooperation, she provided no details about this alleged cooperation and no evidence to prove it.  Evidence that federal or state officials took one of the actions specified in the regulations is essential to prove cooperation as a mitigating

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factor because that is the only way to validate the cooperation.  Gale, DAB No. 1941 at 10-11; see also 63 Fed. Reg. 46,676, 46,681 (Sept. 2, 1998); 57 Fed. Reg. 3298, 3315 (Jan. 29, 1992).  Because there is no such evidence in the record, I conclude Petitioner did not prove this mitigating factor.

Petitioner also asserts a variety of other mitigating factors that are not listed in the regulations.  Petitioner states that she:  is a first-time offender; accepted responsibility and pleaded guilty early; has no prior disciplinary history from any board or federal program; voluntarily exited from her health care field and does not seek to return to a federally funded billing role; is a primary caregiver to her elderly mother and sole provider for her family; and Petitioner's age and health present obstacles to future employment and magnify the exclusion's disproportionate effect.  P. Br. at 3.

Petitioner argues, as briefly discussed earlier in this decision, that the Aswad decision supports the consideration of mitigating factors that are not listed in the regulations.  P. Sur-Reply at 1-2.  However, as explained earlier, Aswad in fact limits the review of the reasonableness of the length of exclusion to the aggravating and mitigating factors in the regulations.  Therefore, I cannot consider Petitioner's asserted mitigating factors because they are not listed in the regulations.  Baldwin Ihenacho, DAB No. 2667 at 8 (2015).

5. The 22-year length of Petitioner's exclusion is not unreasonable based on a qualitative analysis of the aggravating factors in this case.

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).  However, an excluded individual's age, financial condition, and employment prospects are not considered.  Jeremy Robinson, DAB No. 1905 (2004); Zahid Imran, M.D., DAB No. 2680 at 14 (2016).  Ultimately, I must decide whether the 22-year length of exclusion is unreasonable, i.e., whether it is within a reasonable range based on the relevant factors.  42 C.F.R. § 1001.2007(a)(1)(ii); 57 Fed. Reg. 3298, 3321 (Jan. 29, 1992).

When conducting this analysis, it is important to note that health care providers do not have a fundamental right to participate in federal health care programs; therefore, an exclusion only needs to be rationally related to a legitimate government interest, such as patient health or protecting federal health care programs from fraud and abuse.  Parrino v. Price, 869 F.3d 392 (6th Cir. 2017).  For exclusions, the trustworthiness of the excluded individual is a key question.  See Morgan v. Sebelius, 694 F.3d at 538 (4th Cir. 2012) ("[T]he legislative history to § 1320-7(a)(3) as it was originally enacted indicates that it was specifically intended to protect federal programs from untrustworthy individuals . . . ."); see also Susan Malady, R.N., DAB No. 1816 at 9 (2002).  Because the

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purpose of an exclusion is to protect federal health care programs from fraud and abuse, it is remedial and not punitive.  Manocchio v. Kusserow, 961 F.2d 1539, 1541-42 (11th Cir. 1992).

Turning to the aggravating factors in this case, Petitioner caused $2.7 million in loss to the Medicaid program and related entities.  This is 54 times the minimum $50,000 amount in loss to make the loss an aggravating factor.  Although Petitioner asserts that this loss stemmed from "agency-level mismanagement and billing inefficiencies," and that Petitioner had no intent to defraud, I am unable to consider these arguments because they are impermissible collateral attacks on Petitioner's conviction and guilty plea.  P. Br. at 3; 42 C.F.R. § 1001.2007(d).  Rather, this factor requires the imposition of a lengthy exclusion.

Petitioner engaged in a health care fraud scheme for two and a half years.  Petitioner asserts that the duration relates to a period when there was "systemic administrative failure."  P. Br. at 3.  If this argument is to deflect from Petitioner's criminal culpability, again, I cannot consider that collateral attack.  This multi-year length of criminal conduct involving fraud weighs heavily against a finding of Petitioner's trustworthiness to participate in federal programs.  See Janice Cassandra Wrenn, DAB No. 3118 at 17 (2023).

Petitioner was also sentenced to 41 months in prison.  Petitioner believes this is relatively short based on other cases.  P. Br. at 3.  However, a prison sentence of as little as nine months is considered to be relatively substantial for exclusion purposes.  Hollady, DAB No. 1855 at 12.  Petitioner's sentence is more than four times longer than the nine months in Hollady and constitutes a significant basis to increase the length of exclusion.

Petitioner was also convicted of Bank Fraud in the same criminal proceeding in which Petitioner was convicted of Health Care Fraud.  It is useful to note the purpose behind this aggravating factor:

Inclusion of this aggravating factor will permit the OIG to increase a length of exclusion when an individual is convicted of Medicare fraud and any other offense, such as drug distribution or income tax evasion.  The aggravating factor will take into consideration separate and different types of convictions that occurred concurrently; we do not intend to use the basis of the OIG exclusion more than once as a factor in lengthening an exclusion.

63 Fed. Reg. 46,676, 46,680-81 (Sept. 2, 1998) (emphasis added).

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Petitioner explains that the second offense in this case reflected economic desperation and not serial misconduct.  P. Br. at 3.  In this case, Petitioner ran a lengthy scheme of Health Care Fraud from 2018 to 2020, and then engaged in Bank Fraud in 2021.  The common point between both criminal acts is that Petitioner engaged in dishonesty when dealing with multiple entities.  This aggravating factor also weighs heavily in favor of a lengthy exclusion because it shows that Petitioner is fully capable of lying to obtain money, whether economically desperate or not.

Petitioner believes that a 22-year exclusion is punitive.  P. Br. at 5.  However, it is remedial because federal health care programs need to be protected from an individual like Petitioner.  She has displayed significant dishonesty over a long period of time to steal from a health care program that helps the poor.

Petitioner believes that a 22-year exclusion is inconsistent with the length of exclusion imposed on others.  P. Br. at 4-5; P. Sur-Reply at 4-5.  Case comparisons are not irrelevant, but they are of limited value and are not dispositive.  Aswad, DAB No. 2741 at 10.  However, in this case, they support the 22-year length of exclusion.

The Departmental Appeals Board affirmed a 22-year exclusion for an individual convicted of violating the same health care fraud statute and excluded under the same statutory provision in the present case.  The excluded individual in the comparator case had the following aggravating factors:  program loss that was 20 times the minimum amount needed for aggravation, as opposed to 54 times in the present case, and a duration of criminal acts that was seven times more than the one year minimum to make it aggravating, as opposed to only 2.5 times in the present case.  Nabil Mohsen Mohsen Al-Subari, DAB No. 3162 at 9-10 (2024).  In addition, in the present case, Petitioner has a lengthy period of incarceration and an additional conviction of a crime involving dishonesty, which are not present in the comparator case.  Therefore, I find Al-Subari to support the 22-year length of exclusion in the present case because, overall, Petitioner's aggravating factors are more serious.

In another case, an administrative law judge affirmed a 22-year exclusion for an individual convicted of violating the same health care fraud statute and excluded under the same statutory provision in the present case.  Jorge Sfeir, M.D., DAB CR6176 at 6-8 (2022).  The excluded individual in the comparator case had the following aggravating factors:  $4 million in loss; 18 months of incarceration; and the suspension of a medical license.  Sfeir, DAB CR6176 at 9-10.  Although the loss in this comparator case is greater by a million dollars than the present case, Petitioner's period of incarceration in the present case is more than double the comparator, and Petitioner's length of time committing fraud was much longer.  Petitioner was convicted of bank fraud as well.  The comparator by contrast only had a license suspension as a different aggravating factor.  I find these cases to be similar enough to support the 22-year exclusion in the present case.

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In a final case, an administrative law judge affirmed a 22-year exclusion for an individual convicted of violating the same health care fraud statute and excluded under the same statutory provision in the present case.  The excluded individual in the comparator case had the following aggravating factors:  $351,600 in loss; 33 months of incarceration; and a criminal scheme that lasted five years.  This case also involved a minimum exclusion of ten years, based on an earlier conviction.  Shelia E. Novin, DAB CR1368 (2005).  This comparator case is similar in that it involves a total of two convictions each but differs in that the loss in the comparator case is much lower, the length of incarceration in the comparator case is much shorter, and the duration of the criminal acts in the comparator case is much longer.  On the balance, I consider the factors to be close enough to support the 22-year length of exclusion in the present case.

Therefore, I conclude that the 22-year length of exclusion for Petitioner is reasonable and necessary to serve the remedial purpose of protecting federal health care programs from fraud.

VIII.  Conclusion

I affirm the IG's determination to exclude Petitioner for 22 years from participating in all federal health care programs under 42 U.S.C. § 1320a-7(a)(1).