Xing Zhang, DAB CR6976 (2026)

DECISION

Petitioner, Xing Zhang, worked as an in-home caregiver in New York providing care for two elderly individuals who received Medicaid benefits.  Petitioner was charged with health care fraud, misuse of passport, and aggravated identity theft.  Petitioner plead guilty to all three counts.  The court accepted the plea and entered a judgment of conviction. 

Based on his conviction, the Inspector General (IG) has excluded Petitioner for ten years from participating in Medicare, Medicaid, and all federal health care programs, as provided for in section 1128(a)(1) of the Social Security Act (Act). 

Petitioner appeals. 

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

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Background

In a letter dated December 31, 2025, the IG notified Petitioner that he was excluded from participating in Medicare, Medicaid, and all federal health care programs for a minimum period of ten years because he had been convicted of a “criminal offense related to the delivery of an item or service under Medicare or a State health care program.”  The letter explained that section 1128(a)(1) of the Act authorizes the exclusion.  IG Ex. 1. 

Petitioner timely requested review. 

Exhibits.  The IG has submitted a written brief (IG Br.) with four exhibits (IG Exs. 1-4).  Petitioner has submitted his own brief (P. Br.) with five exhibits (P. Ex. A-E).  The IG also submitted a reply brief. 

In the absence of any objections, I admit into evidence IG Exs. 1-5 and P. Exs. A-E. 

Hearing on the written record.  I informed the parties that they needed to submit the written direct testimony for any witnesses that they wanted to testify in this case or, if they were unable to obtain the written direct testimony, to request a subpoena to be issued to the witness or witnesses.  SPO ¶ 11.  I also informed the parties that I would not conduct a hearing unless written direct testimony was submitted by a party and the opposing party requested to cross-examine one or more witnesses.  SPO ¶ 12. 

In the present case, the IG gave notice that it did not have any witnesses to present in this case and did not think an in-person hearing was necessary.  IG Br. at 10.  Petitioner neither provided any written direct testimony nor a witness list.  Therefore, there is no need for me to hold an in-person hearing and I issue this decision based on the written record.  CRD Procedures §§ 16(a)-(b), 19(b), (d). 

Discussion

1. Petitioner must be excluded from program participation because he was convicted, under state law, of a criminal offense related to the delivery of services under the Medicaid program.  Act § 1128(a)(1).1 

Under section 1128(a)(1) of the Act, the Secretary of Health and Human Services must exclude an individual who has been 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 C.F.R. § 1001.101(a). 

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Petitioner acted as an in-home caregiver for his elderly parents.  IG Ex. 4; P. Br.  Petitioner’s elderly parents received Medicaid benefits.  Id.  Petitioner admitted to submitting false claims to the New York Medicaid program for hours he did not work from January 15, 2015 through May 31, 2019.  IG Exs. 3 and 4.  Petitioner also admitted to utilizing his brother’s passport to fraudulently obtain a New York driver’s license in his brother’s name.  Id.  Petitioner then used that driver’s license to enroll his brother in the in-home caregiver program and submitted additional claims to the New York Medicaid program.  Id.; P. Br. 

On September 29, 2021, the United States Attorney charged Petitioner with, one count of health care fraud, one count of misuse of passport, and one count of aggravated identity theft.  IG Ex. 4.  The United States Attorney also sought a money judgment in the amount of $67,295 representing the unrecovered proceeds obtained by the defendant.  Id. 

Petitioner plead guilty to all three counts.  The court accepted his plea and found him guilty as charged on May 7, 2025.  Petitioner was sentenced to 25 months imprisonment as well as three years supervised release.  The court ordered Petitioner to pay $117,606.48 in restitution to Medicaid.  IG Exs. 2, 3. 

Petitioner’s conviction was clearly related to the delivery of services under Medicaid, a state health care program.  See IG Exs. 2, 4.  Petitioner was charged with and admitted to submitting false claims to the New York Medicaid program.  Id. 

2. Based on one aggravating factor and no mitigating factors, the ten-year exclusion falls within a reasonable range. 

An exclusion brought under section 1128(a)(1) must be for a minimum period of five years.  Act § 1128(c)(3)(B); 42 C.F.R. § 1001.102(a).  I now consider whether the length of the exclusion, beyond five years, falls within a reasonable range.  See Edwin L. Fuentes, DAB No. 2988 at 8-9 (2020); Hussein Awada, M.D., DAB No. 2788 at 5-6 (2017).  So long as that length falls within a reasonable range, my role is not to second-guess the IG’s judgment.  Jeremy Robinson, DAB No. 1905 at 5 (2004) (ALJ review must reflect the deference accorded to the IG by the Secretary). 

The presence of an aggravating factor, not offset by any mitigating factor or factors, justifies lengthening the mandatory period of exclusion.  “Simply meeting the threshold for an aggravating factor is a clear indication of untrustworthiness.”  Awada, DAB No. 2788 at 10. 

Among the factors that may serve as a basis for lengthening the period of exclusion are the ones that the IG relies on in this case:  the acts that resulted in the conviction, or similar acts, were committed over a period of one year or more; the acts resulting in

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conviction caused a financial loss to a government agency or program of $50,000 or more; and the sentence imposed by the court included incarceration.  42 C.F.R. § 1001.102(b)(2).2 

The length of participation in criminal activity may 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.”  Donald A. Burstein, Ph.D., DAB No. 1865 at 8 (2003). 

Petitioner, individually, was convicted of activity that lasted for more than a year.  From on or about January 15, 2015 through May 31, 2019, Petitioner submitted false claims to the New York Medicaid program.  IG Ex. 2, 4.  On its face, Petitioner’s conviction establishes that he engaged in his criminal activities for well over four years.  His criminal activity thus cannot be considered a “short-lived” lapse and justifies the increase in his period of exclusion, from the mandatory five years to ten years. 

Petitioner’s sentence by the court included incarceration.  Petitioner was sentenced to 25 months in federal prison.  IG Ex. 3. 

A prison sentence of as little as nine months is considered to be relatively substantial for exclusion purposes.  Jason Hollady, M.D., DAB No. 1855 at 12 (2002).  Petitioner’s 25-month sentence is more than double that amount and demonstrates the seriousness of Petitioner’s criminal offense.  This length of imprisonment supports an increase in the length of the exclusion. 

In the December 31, 2025 exclusion notice, the IG stated that the acts resulting in conviction, or similar acts, caused or were intended to cause, a financial loss to a government agency or program of $50,000 or more.  The IG specified that “[t]he court ordered [Petitioner] to pay approximately $117,600 in restitution.”  IG Ex. 1 at 1. 

As stated above, Petitioner submitted false claims to the New York state Medicaid program.  Petitioner was ordered to pay $117,606.48 in restitution to the Medicaid program.  IG. Ex. 3.  Petitioner’s criminal activity is responsible for a loss to the

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Medicaid program that is more than double the minimum amount required for that loss to be considered an aggravating factor. 

Lastly, Petitioner plead guilty to and was convicted of additional offenses other than those that formed the basis for the exclusion.  Specifically, Petitioner plead guilty to misuse of a passport and aggravated identity theft.  IG Ex. 2. 

No mitigating factors.  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 a 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). 

Characterizing a 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 argues that he was working with a special agent for several years aiding him in investigations related to Medicaid fraud schemes.  However, Petitioner alleges that he left the government before any of the charges against him could be dropped.  P. Br.  However, Petitioner does not provide any additional information or proof that this relationship took place or that it resulted in convictions, additional cases being investigated or civil money penalties being imposed. 

As a result, I find that there are no mitigating factors in this case. 

Petitioner argues that he has filed a motion to vacate his conviction and that his criminal defense attorney refused him the assistance of a Mandarin interpreter.  P. Br.  Additionally, Petitioner argues that he plead guilty on the advice of his attorney to avoid a lengthier sentence and that he did not comprehend the consequences involved.  Id.  Petitioner’s arguments amount to a collateral attack on his underlying conviction.  Petitioner disagrees with some of the representations of his attorney including that he allegedly did not provide the work he billed Medicaid for.  However, Petitioner plead guilty to the three counts charged and his guilty plea was accepted by the court.  The regulations explicitly preclude my review of the facts underlying his conviction.  When the exclusion is based on the existence of a criminal conviction where the facts were adjudicated and a final decision was made, the basis for the underlying conviction is not reviewable and the individual or entity may not collaterally attack it either on substantive or procedural grounds in this appeal.  42 C.F.R. § 1001.2007(d). 

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Lastly, Petitioner explains that he provided important care to both of his parents who were receiving Medicaid benefits.  P. Br.  He argues that he worked 24 hours a day for little pay ensuring that his parents received the care they needed.  While this may be true, Petitioner also plead guilty to three counts including health care fraud.  These assertions made by Petitioner are ultimately requests for equitable relief which I do not have authority to grant. 

Conclusion

The IG properly excluded Petitioner from participating in Medicare, Medicaid, and other federal health care programs.  So long as the period of exclusion is within a reasonable range, based on demonstrated criteria, I have no authority to change it.  Joann Fletcher Cash, DAB No. 1725 at 7 (2000), citing 57 Fed. Reg. 3298, 3321 (Jan. 29, 1992). 

I find that the ten-year exclusion falls within a reasonable range.