Ndubuisi Joseph Okafor, DAB, CR6910, (2026)

DECISION

For the second time, the Inspector General (IG) has excluded Petitioner, Ndubuisi Joseph Okafor, from participating in Medicare, Medicaid, and all federal health care programs. 

Petitioner Okafor is a physician, licensed to practice in the District of Columbia, who has twice been convicted of felonies.  Most recently he participated in a felonious criminal conspiracy to distribute controlled substances,  He was convicted of conspiracy to unlawfully distribute controlled substances; maintaining “drug-involved premises”; and unlawfully distributing controlled substances.  Based on these most recent convictions, the IG has excluded him from participating in Medicare, Medicaid, and all federal health care programs for a period of 31 years, as authorized by section 1128(a)(4) of the Social Security Act (Act). 

Petitioner appeals.  

For the reasons discussed below, I find that the IG properly excluded Petitioner Okafor, that the 31-year exclusion falls within a reasonable range. 

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Background

In a letter dated September 30, 2025, the IG notified Petitioner that, because he had been convicted of a felony related to the unlawful manufacture, distribution, prescription, or dispensing of a controlled substance, the IG was excluding him from participating in Medicare, Medicaid, and all federal health care programs for a period of 31 years, pursuant to section 1128(a)(4) of the Act.  The letter noted that, because Petitioner had previously been convicted of an offense for which he could have been excluded under section 1128(a), the Act required that he be excluded for a minimum of ten years.  IG Ex. 1 at 1. 

Petitioner timely requested review. 

Exhibits.  The IG has submitted a written brief (IG Br.) and four exhibits (IG Exs. 1-4).  Petitioner submitted a written brief (P. Br.) with no additional exhibits.  The IG submitted a reply brief (IG Reply). 

In the absence of any objections, I admit into evidence IG Exs. 1-4. 

Hearing on the written record.  Neither party proposes any witnesses, so an in-person hearing would serve no purpose.  See IG Br. at 7; Order and Schedule for Filing Briefs and Documentary Evidence at 4 (¶ 7).  I therefore close the record and issue this decision based on the parties’ written submissions. 

Issue

Petitioner concedes that the IG is authorized to exclude him and that the exclusion must be for a minimum of ten years.  See P. Br.  The sole issue before me is whether the length of the exclusion – beyond the ten-year mandatory minimum – is reasonable. 

Discussion

1. 1. Petitioner must be excluded from program participation for a minimum of ten years because he was convicted of a felony relating to the unlawful distribution, prescription, or dispensing of a controlled substance.1

Section 1128(a)(4) mandates that the Secretary exclude from program participation any individual or entity convicted of a felony “relating to the unlawful manufacture, 

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distribution, prescription, or dispensing of a controlled substance.”  See 42 C.F.R. § 1001.101(d). 

Petitioner was a physician who owned and operated his own medical practice.  IG Ex. 2 at 1.  Conspiring with others, he maintained his practice site as an illicit drug distribution center, prescribing Oxycodone, Promethazine with Codeine, and other controlled substances without legitimate medical purposes in order to “unlawfully enrich” himself.  IG Ex. 2.  

In a multi-count indictment, filed February 6, 2025, Petitioner was charged with multiple felonies:  one count of conspiracy to unlawfully distribute controlled substances, in violation of 21 U.S.C. § 846; one count of maintaining a drug-involved premises and aiding and abetting, in violation of 21 U.S.C. § 856(a)(1) and 18 U.S.C. § 2; and 27 counts of unlawful distribution of controlled substances and aiding and abetting, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2.  IG Ex. 2.  Although he pleaded not guilty, on June 26, 2025, the criminal court found him guilty of conspiracy to unlawfully distribute controlled substances; maintaining a drug-involved premises; and unlawful distribution of controlled substances and aiding and abetting (22 of the 27 counts).  IG Ex. 3. 

The court sentenced him to 216 months (18 years) in prison, followed by three years of supervised release.  IG Ex. 3 at 3-4.  The court also ordered him to pay an assessment of $2,400, and to forfeit $213,137.97.  IG Ex. 3 at 8. 

As Petitioner admits, he was convicted of felonies related to the unlawful manufacture, distribution, prescription, or dispensing of a controlled substance and must be excluded pursuant to section 1128(a)(4).  

2. 2. Based on Petitioner’s prior conviction, two aggravating factors, and no mitigating factor, the 31-year exclusion falls within a reasonable range.

Individuals excluded under section 1128(a)(4) generally must be excluded for at least five years.  Act § 1128(c)(3)(B); 42 C.F.R. § 1001.2007(a)(2).  However, if the individual has previously been convicted of an offense for which an exclusion could be imposed, he must be excluded for at least ten years.  Act § 1128(c)(3)(G)(i); 42 C.F.R. § 101.102(d)(1).2 

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Prior conviction.  The record includes few specifics describing Petitioner’s prior criminal conviction.  However, the evidence establishes that, in 2009, pursuant to section 1128(a)(1) of the Act, the IG excluded Petitioner for a minimum of ten years based on his conviction for “a criminal offense related to the delivery of an item or service under Medicare or a State health care program.”  IG Ex. 4.3

Petitioner concedes that he is subject to the ten-year minimum period of exclusion.  P. Br.  

Aggravating factors.  I now consider whether the length of Petitioner’s exclusion, beyond ten years, falls within a reasonable range. 

Among the factors that may serve as a basis for lengthening the period of exclusion are the two that the IG relies on in this case:  1) the acts that resulted in the conviction, or similar acts, were committed over a period of one year or more; and 2) the sentence imposed by the court included incarceration.  42 C.F.R. § 1001.102(b). 

The presence of an aggravating factor or factors, not offset by any mitigating factor or factors, justifies lengthening the mandatory period of exclusion.  “[S]imply meeting the threshold for an aggravating factor is a clear indication of untrustworthiness.”  Kimberly Jones, DAB No. 3033 at 11 (2021), quoting Hussein Awada, M.D., DAB No. 2788 at 10 (2017); see also Mrugeshkumar Shah, M.D., DAB No. 3079 at 10 (2022). 

Duration of criminal conduct (42 C.F.R. § 1001.102(b)(2)).  We consider the length of Petitioner’s participation in the criminal scheme in order to distinguish the individual whose lapse in integrity is short-lived from those who display a lack of integrity over a longer period of time.  “Participation in, or even knowing but silent acquiescence in, a continuing fraudulent scheme that could be expected to cause repeated misrepresentations and repeated harm over a period of time evidences a continuing lack of integrity.”  Salmon Ali, DPT and Roohi Ali, DPT, DAB No. 3048 at 8-9 (2021), quoting Donald A. Burstein, DAB No. 1865 at 8 (2003).  

Here, Petitioner’s illegal activity began in May 2021 and continued through April 11, 2023, almost two years later.  This is almost double length of time required to support the aggravating factor and justifies significantly increasing the period of his exclusion.  IG Ex.2 at 5, 8; IG Ex. 3 at 1, 2; see Laura Leyva, DAB No. 2704 at 10 (2016), aff’d Leyva v. Price, No. 8:16-CV-1986, 217 WL 2880125 (M.D. Fla. 2017).  

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Incarceration (42 C.F.R. § 1001.102(b)(5)).  The court sentenced Petitioner to a whopping 216 months – 18 years – in prison, which is a very long period of incarceration.  IG Ex. 3 at 3.  While any period of incarceration justifies increasing the period of exclusion, the Board has repeatedly held that longer periods of incarceration are relevant in determining whether a period of exclusion is reasonable.  Incarceration “may be viewed as a ‘reasonable proxy . . . for untrustworthiness in the context of deciding how much weight to give the aggravating factor for incarceration.’”  Yolanda Hamilton, M.D., DAB No. 3061 at 17 (2022); quoting Eugene Goldman, M.D., DAB No. 2635 at 6 (2015).  Generally, the longer the jail time, the longer the exclusion, because a lengthy sentence evidences a more serious offense.  See Jeremy Robinson, DAB No. 1905 at 6 (characterizing a nine-month incarceration as “relatively substantial.”); Jason Hollady, M.D., DAB No. 1855 at 12 (2002); Stacy Ann Battle, D.D.S., DAB No. 1843 (2002) (finding that four months in a halfway house, followed by four months home confinement justifies lengthening the period of exclusion). 

An 18-year prison sentence is incredibly long and, by itself, amply justifies an extended period of exclusion.  Nor was this the first time that Petitioner was incarcerated for his criminal activities.  As the IG noted in its 2009 exclusion letter, Petitioner had then been sentenced to 65 months – or more than five years – in prison. 

Petitioner has thus proven himself to be an incorrigible criminal.  He has demonstrated repeatedly that he is untrustworthy.  Neither jail time nor an exclusion deterred him from further criminal activities.  He is a threat to program integrity, and the IG has justifiably increased the length of his exclusion to well beyond the ten-year minimum. 

No mitigating factor.  The regulations consider mitigating just three factors:  1) a petitioner was convicted of three or fewer misdemeanor offenses, and the resulting financial loss to the program was less than $5,000; 2) the record in the criminal proceedings demonstrates that the court determined that the petitioner had a mental, physical, or emotional condition that reduced his culpability; and 3) a petitioner’s cooperation with federal or state officials resulted in others being convicted or excluded, or additional cases being investigated, or a civil money penalty being imposed.  42 C.F.R. § 1001.102(c).  Mithell Townsend, DAB No. 3205 at 9 (2025).  Characterizing the mitigating factor as “in the nature of an affirmative defense,” the Board has ruled that Petitioner has the burden of proving any mitigating factor by a preponderance of the evidence.  Barry D. Garfinkel, M.D., DAB No. 1572 at 8 (1996). 

Petitioner was convicted of multiple felonies.  The record in his criminal case does not establish any mental, physical, or emotional condition that reduces his culpability.  Nothing suggests that he cooperated with any federal or state officials.  Thus, no mitigating factors offset the significant aggravating factors present in this case. 

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Petitioner nevertheless points out that the sentencing court did not order him to pay restitution to Medicare, Medicaid, or any health insurance company.  He concedes that he was fined and that money was seized from his accounts but argues the absence of restitution is “a very significant mitigating factor.”  P. Br.  It is not.  The absence of an aggravating factor does not create a mitigating factor.4  The regulation is unequivocal; section 1001.102(c) lists the only factors that I may consider mitigating.  Waleed Khan, DAB No. 3083 at 8-9 (2023); Shaun Thaxter, DAB No. 3053 at 35 (2021); Anthony Joseph Moschetto, D.O., DAB No. 3030 at 14 (2021). 

Petitioner also suggests that extending the length of the exclusion beyond ten years “is not statutorily based” and that Congress recommended a ten-year exclusion for repeat offenders.  In Petitioner’s view, by imposing an exclusion longer than ten years, the IG has exceeded its statutory authority.  This position is contrary to the plain language of the statute: “if the individual has . . . been convicted – (i) on one previous occasion of one or more offenses for which an exclusion may be effected . . . the period of exclusion shall be not less than 10 years.”  Act § 1128(c)(3)(G)(i) (emphasis added).  

Reasonable range.  Based on the two aggravating factors and the absence of any mitigating factor, I must determine whether the exclusion period imposed by the IG falls within a reasonable range.  So long as that period falls within a reasonable range, my role is not to second-guess the IG’s judgment.  Jeremy Robinson, DAB No. 1905 at 5 (ruling that ALJ review must reflect the deference accorded to the IG by the Secretary). 

A “‘reasonable range’ refers to a range of exclusion periods that is more limited than the full range authorized by the statute [i.e. from a minimum of five years to a maximum of permanent] and that is tied to the circumstances of the individual case.”  Joseph M. Rukse, Jr., R.Ph., DAB No. 1851 at 11 (2002) (citing Gary Alan Katz, R.Ph., DAB No.1842 at 8 n.4 (2002)).  The goal here is to protect federal health care programs and beneficiaries from potential harm.  Joann Fletcher Cash, DAB No. 1725 (2000). 

The underlying facts here more than justify a 31-year exclusion.  A prior conviction, jail sentence, and ten-year exclusion did not deter Petitioner from engaging in further felonious conduct.  His potential disregard for the welfare of program beneficiaries is evidenced by his willingness to distribute potentially dangerous and addictive controlled substances without legitimate medical purposes.  He has willingly committed felonies in order to enrich himself and thus poses a significant threat to the integrity of health care programs. 

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I therefore conclude that the 31-year exclusion falls within a reasonable range. 

Conclusion

The IG properly excluded Petitioner from participating in Medicare, Medicaid, and all other federal health care programs, and the 31-year exclusion falls within a reasonable range.