Festus Onyemaliosia Ebonka (OI File No. L-18-40052-9), DAB CR6810 (2026)

DECISION

I affirm the five-year exclusion of Petitioner, Festus Onyemaliosia Ebonka, from participation in all federal health care programs.

I.  Background and Procedural History

In an August 29, 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 five years due to his conviction in the United States District Court for the District of Nevada (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 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, asserting that the IG imposed a mandatory exclusion when the facts only supported a permissive three-year exclusion.  Hr'g Req. at 1.  On September 10, 2025, the Civil Remedies Division acknowledged receipt of the hearing request, gave notice of a telephonic prehearing

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conference, and issued my Standing Order.  On October 6, 2025, I held a telephonic prehearing conference with the parties, the substance of which is summarized in my October 6, 2025 Order Following Prehearing Conference and Setting Schedule for Prehearing Submissions.

On November 3, 2025, the IG submitted a prehearing exchange consisting of a brief (IG Br.) and five proposed exhibits (IG Exs. 1-4).  On December 1, 2025, Petitioner submitted a prehearing exchange consisting of only a brief (P. Br.).  On December 18, 2025, the IG submitted a reply brief (IG Reply).

II.  Admission of Exhibits

Absent objection, I admit IG Exhibits 1 through 4 into the record.  P. Br. at 2 n.1; Standing Order ¶ 13; see 42 C.F.R. § 1005.8(c).

III.  Decision on the Written Record

Both the IG and Petitioner indicated that they do not have any witness testimony to offer and do not think an in-person hearing is necessary.  P. Br. at 6; IG Br. at 5.  Therefore, I issue this decision based on the written record.  Standing Order ¶¶ 12, 16; see also 42 C.F.R. § 1005.6(b)(5).

IV.  Issue

Whether the IG had a legitimate basis to exclude Petitioner for five years from participation in all federal health care programs under 42 U.S.C. § 1320a-7(a)(1).

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 February 4, 2025, Petitioner signed a Plea Agreement in which Petitioner agreed to plead guilty to the charge of Conversion of Government Money, a Class A Misdemeanor, in violation of 18 U.S.C. § 641.  IG Ex. 2 at 2, 17.  The charge specified the following facts:  "On or about September 13, 2018, in the State and Federal District of Nevada, [Petitioner], defendant herein, willfully and knowingly did convert to his own use money from Medicare, an agency of the United States, to which defendant knew he was not entitled, all in violation of United States Code, Section 641."  IG Ex. 2 at 18.

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2. In the Plea Agreement, Petitioner admitted the following facts (IG Ex. 2 at 6-7):
   1. Petitioner was a registered nurse and certified nurse practitioner who was licensed to practice in Nevada.
   2. Petitioner was enrolled in the Medicare program to provide services to beneficiaries and was required to abide by all Medicare rules and regulations.
   3. From approximately March 2017 through September 2018, Petitioner caused the submission of Medicare claims under Procedure Code L8679.
   4. The claims were based on the purported application of a device called Stivax to Medicare beneficiaries.
   5. These claims were false because Procedure Code L8679 does not cover the application of the Stivax device, which Medicare considers a non-reimbursement acupuncture treatment.
   6. On September 13, 2018, Petitioner caused the submission of a claim to Medicare for $10,000 under Procedure Code L8679, and Medicare paid Petitioner $6,519.69 based on that claim.
   7. Petitioner was aware that it was highly probable that Procedure Code L8679 did not cover the application of the Stivax device; however, Petitioner deliberately remained ignorant of the false nature of his claim.
3. In a May 5, 2025 Judgment in a Criminal Case, the District Court stated that Petitioner pleaded guilty to, and was adjudicated guilty of, violating 18 U.S.C. § 641, Conversion of Government Property.  IG Ex. 3 at 1.
4. The District Court sentenced Petitioner to three years of probation.  IG Ex. 3 at 2.
5. The District Court identified the Centers for Medicare & Medicaid Services as the victim and ordered Petitioner to pay $6,519.69 in restitution.  IG Ex. 3 at 5, 7.

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 Medicare program; therefore, exclusion is required under 42 U.S.C. § 1320a‑7(a)(1).

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The IG must exclude an individual or entity 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).

For purposes of exclusion, an individual is "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 criminal conduct has been expunged" or "when a plea of guilty or nolo contendere by the individual or entity has been accepted by a Federal, State, or local court."  42 U.S.C. § 1320a‑7(i)(1), (3).  Petitioner pleaded guilty to violating 18 U.S.C. § 641, the District Court accepted that plea, and the District Court issued a judgment of conviction.  IG Exs. 2, 3.  Therefore, Petitioner was "convicted" of a criminal offense.

In addition, Petitioner's criminal offense is related to the delivery of an item or service 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 & 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 Conversion of Government Property (i.e., converting funds from the Medicare program) based on claims involving a false basis for reimbursement 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).").

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Further, the District Court's order for Petitioner to pay restitution to the Centers for Medicare & Medicaid Services supports the required nexus in this case.  IG Ex. 3 at 5, 7; see Summit S. Shah, M.D., DAB No. 2836 at 8-9 (2017).

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

Petitioner disagrees that he is subject to a mandatory exclusion.  Instead, Petitioner asserts that he is only subject to a permissive exclusion because he was convicted of a misdemeanor offense.  P. Br. at 2.  Specifically, Petitioner believes that interpreting section 1320a-7(a)(1) to require mandatory exclusions for both felony and misdemeanor offenses would render section 1320a-7(b) (i.e., the permissive exclusion provision) "largely impotent" and "superfluous."  P. Br. at 3.  Petitioner reasons that section 1320a-7(b) relates to misdemeanors and, therefore, that is the provision that should apply in this matter.  P. Br. at 4.  Petitioner quotes from a legislative history document indicating that mandatory exclusions are imposed for felonies and permissive exclusions are imposed for misdemeanors.  P. Br. at 5.

In response, the IG argues that where a misdemeanor offense is program-related, the IG must impose a mandatory exclusion under section 1128(a)(1).  IG Reply at 2.  The IG further argues that section 1128(b)(1) applies to criminal offenses not related to Medicare or a state health program.  IG Reply at 2.

I disagree with Petitioner's interpretation of section 1320a-7.  A plain reading of the text reveals that Congress used the phrase "criminal offense consisting of a felony" when it required a felony conviction for exclusion (42 U.S.C. § 1320a-7(a)(3), (4)), the phrase "criminal offense consisting of a misdemeanor," when it required a misdemeanor for exclusion (42 U.S.C. § 1320a-7(b)(1), (3)), and simply "criminal offense" or "convicted" (with no qualifier) when it required either a felony or misdemeanor.  42 U.S.C. § 1320a-7(a)(1), (2), (b)(2); Craig Richard Wilder, DAB No. 2416 at 6-7 (2011).  As the Departmental Appeals Board explained:

The Board has rejected the argument that a misdemeanor conviction should only fall under the permissive exclusion provisions.  Gregory J. Salko, M.D., DAB No. 2437, at 4 (2012) (citing Lorna Fay Gardner, DAB No. 1733, at 5 (2000)), aff'd, No. 3:12cv515, 2013 WL 618779 (M.D. Pa. Feb. 19, 2013).  The Board in Salko upheld the I.G.'s determination to exclude a petitioner under the mandatory exclusion provisions based on his misdemeanor conviction. Id. at 1, 4-5.  The Board explained that the permissive

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exclusion provisions of section 1128(b) do not apply where there is a basis for a mandatory exclusion under section 1128(a).  Id. at 4.  The Board also observed that, when an offense falls under the mandatory exclusion statute, federal courts have "repeatedly held" that the I.G. is required to impose a mandatory exclusion even if an individual's conduct also falls within the scope of the permissive exclusion provisions.  Id. (quoting Timothy Wayne Hensley, DAB No. 2044, at 16 (2006) and citing relevant federal court decisions); Kimbrell Colburn, DAB No. 2683, at 9 (2016) (quoting Hensley at 16 and citing Salko at 4).

Darling Navidad Oki, DAB No. 3176 at 2 (2025).

In addition, Petitioner is not correct when he asserts that interpreting section 1320a-7(a)(1) to include misdemeanors makes provisions like section 1320a-7(b)(1) or (b)(3) surplusage.  Section 1320a-7(b)(1) has a mandatory exclusion counterpart for felony offenses involving fraud or other financial misconduct (i.e., section 1320a-7(a)(3)), and section 1320a-7(b)(3) has a mandatory exclusion counterpart for felony offenses involving controlled substances (i.e., section 1320a-7(a)(4)).  However, section 1320a-7(a)(1) neither requires a felony conviction nor has a misdemeanor permissive exclusion counterpart.  Therefore, I reject Petitioner's argument and uphold the mandatory exclusion in this case.

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).

VIII.  Conclusion

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