Festus Onyemaliosia Ebonka, DAB No. 3229 (2026)

FINAL DECISION ON REVIEW OF ADMINISTRATIVE LAW JUDGE DECISION

Festus Onyamaliosia Ebonka (Petitioner) appeals the decision of an Administrative Law Judge (ALJ) upholding the Inspector General (I.G.)’s determination to exclude Petitioner from participating in all federal health care programs for five years under section 1128(a)(1) of the Social Security Act (Act).1  Festus Onyamaliosia Ebonka, DAB CR6810 (2026) (ALJ Decision).  We affirm the ALJ Decision.

Legal Background

The Secretary of the Department of Health and Human Services (Secretary) has statutory authority, delegated to the I.G., to exclude certain individuals from participating in any federal health care program.  Act §§ 1128(a), 1128A(j)(2); 53 Fed. Reg. 12,993 (Apr. 20, 1988); 48 Fed. Reg. 21,662 (May 13, 1983).  The I.G. has adopted regulations to implement that authority.  42 C.F.R. Parts 1001 and 1005.  Section 1128(a) of the Act, addressing mandatory exclusion, states that the Secretary “shall exclude” individuals and entities on specified grounds.  See also 42 C.F.R. § 1001.101.  Section 1128(b) of the Act, addressing permissive exclusion, states that the Secretary “may exclude” individuals and entities on other specified grounds.  See also 42 C.F.R. Part 1001, Subpart C.

Section 1128(a)(1) of the Act requires exclusion of any individual convicted “of a criminal offense related to the delivery of an item or service under [Medicare] or under any State health care program” – in other words, a “program-related” crime.  Act § 1128(a)(1); see also C.F.R. § 1001.101(a).  An individual can be “convicted” for purposes of section 1128(a)(1) in several ways, including when a court enters a “judgment of conviction” against, or accepts a “plea of guilty” from, that individual.  Act § 1128(i)(1), (3).  A mandatory exclusion under section 1128(a)(1) must be for at least five years, whereas permissive exclusions under section 1128(b) can be for less than five years.  Act § 1128(c)(3)(B)-(G); 42 C.F.R. §§ 1001.102(a), 1001.201(b).

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An excluded individual may request an ALJ hearing and, if dissatisfied with the ALJ’s decision, may appeal it to the Board.  Act § 1128(f)(1); 42 C.F.R. §§ 1005.2, 1005.21. 

Case Background2

1. Petitioner’s criminal conviction and exclusion

In 2017 and 2018, Petitioner was a registered nurse and certified nurse practitioner licensed to practice in Nevada.  ALJ Decision at 3; I.G. Ex. 2, at 7.  In 2025, he faced a one-count federal criminal Information charging that on or about September 13, 2018, in Nevada, he “willfully and knowingly did convert to his own use money from Medicare, an agency of the United States, to which [he] knew he was not entitled.”  I.G. Ex. 2, at 2, 18.  He thus allegedly committed the offense of “Conversion of Government Money, a class A misdemeanor, in violation of 18 U.S.C. § 641.”  Id. at 2. 

On February 4, 2025, Petitioner signed a Plea Agreement acknowledging that the “factual basis for” his offense stated therein was “true and correct” and he “is, in fact, guilty of the offense.”  I.G. Ex. 2, at 6, 16-17; see also ALJ Decision at 2.  Petitioner admitted that from approximately March 2017 through September 2018, “through businesses under his control,” he “caused the submission to Medicare of claims requesting reimbursement” for an unreimbursable “acupuncture treatment” under an incorrect procedure code and “these claims were false.”  I.G. Ex. 2, at 7.  On September 13, 2018, he had a $10,000 false claim submitted using an inapplicable procedure code; Medicare paid him “$6,519.69, which he converted to his own use.”  Id.  When submitting that claim, Petitioner “was deliberately ignorant to” its falsity; “that is, he was aware of a high probability” that the procedure code was incorrect and he “deliberately avoided learning the truth.”  Id. 

The district court accepted Petitioner’s guilty plea, entered a criminal judgment adjudicating him guilty, sentenced him to three years of probation, and ordered him to pay the identified victim of the crime, the Centers for Medicare & Medicaid Services, $6,519.69 in restitution.  ALJ Decision at 3; I.G. Ex. 3, at 1-2, 5-7; I.G. Ex. 4.

On August 29, 2025, the I.G. notified Petitioner of his exclusion from participation in federal health care programs for 5 years per section 1128(a)(1) of the Act due to his conviction.  I.G. Ex. 1, at 1. 

2. The ALJ proceedings and appeal to the Board

Petitioner timely requested ALJ review.  Req. for ALJ Hr’g; ALJ Decision at 1.  After a pre-hearing conference, both parties filed briefing and the I.G. submitted four exhibits.

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ALJ Decision at 2.  Neither party offered witness testimony.  Id.  The ALJ admitted all exhibits without objection, ruled an in-person hearing was unnecessary, and issued a decision on the written record.  Id.  The ALJ stated several factual findings, id. at 2-3, and two primary legal conclusions.  First, Petitioner was convicted of a criminal offense related to the delivery of an item or service under the Medicare program and, therefore, section 1128(a)(1) of the Act required his exclusion.  Id. at 3-6.  Second, “Petitioner must be excluded for a minimum of five years” under section 1128(c)(3)(B) of the Act.  Id. at 6.

Petitioner timely appealed to the Board and the I.G. timely responded.  Provider’s Appeal of Decision No. CR6810 (P. Br.); I.G.’s Br. in Opp’n to Appellant’s Appeal (I.G. Br.).

Standard of Review

Our standard of review on a disputed factual issue is whether the ALJ’s decision is supported by substantial evidence on the whole record, and our standard of review on a disputed legal issue is whether the ALJ’s decision is erroneous.  42 C.F.R. § 1005.21(h). 

Analysis

Petitioner challenges the ALJ Decision as legally (not factually) erroneous.  P. Br. at 2 (stating ALJ’s factual findings “have never been in dispute”); I.G. Br. at 4 n.1 (noting Petitioner “only makes legal arguments”).  Petitioner does not deny that the ALJ “faithfully applied” Board precedent, but considers the ALJ Decision erroneous “because it lacks any meaningful analysis regarding the structure and legislative history of” section 1128(a)(1), which the Board allegedly has been “incorrectly interpreting and applying.”  P. Br. at 3-4.  Petitioner claims section 1128 is “ambiguous” as his conduct “arguably” falls under “two conflicting provisions,” namely section 1128(a)(1), which “calls for mandatory exclusion for all program-related crimes,” and section 1128(b)(3), “which calls for permissive exclusion for misdemeanor crimes.”  Id. at 4.  Petitioner does not ask for substitution of a permissive exclusion in place of section 1128(a)(1), but instead requests a Board decision “reversing” and “overturning” the mandatory exclusion.  Id. at 9.  “To the extent appropriate,” Petitioner also requests oral argument.  Id.

The I.G. counters that the Board should affirm the ALJ Decision, which “is free of legal error,” and uphold Petitioner’s mandatory exclusion, which “is for the mandatory minimum period.”  I.G. Br. at 1.  The I.G. argues that mandatory exclusion under section 1128(a) is not discretionary or subject to substitution with permissive authority, and permissive exclusion is not applicable.  Id. at 5-7. 

We first deny Petitioner’s request for oral argument, as the parties’ written materials adequately present the issues and oral argument would not help our decision-making.  See Hossain Sahlolbei, M.D., DAB No. 3139, at 7 n.7 (2024).  We turn now to the merits.

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1. Petitioner was subject to mandatory exclusion under section 1128(a)(1) of the Act and a permissive exclusion cannot apply.

It is “settled Board precedent” that if a conviction falls within the scope of section 1128(a)(1) of the Act, the I.G. must impose that mandatory exclusion.  Claudia Haro, DAB No. 3218, at 16 (2025) (citing cases); see, e.g., Kimbrell Colburn, DAB No. 2683, at 9 (2016) (reiterating Board’s long-standing holding that if a conviction falls within the scope of section 1128(a), “neither the I.G. nor an administrative law judge (or the Board) may proceed under any other provision of section 1128”).

Nevertheless, Petitioner argues the statutory language is ambiguous, meaning “susceptible to more than one reasonable interpretation,” and enlists legislative history and principles of statutory construction to support his interpretation.  P. Br. at 4.  Petitioner asserts that section 1128’s legislative history “confirms that Congress did not intend for the [I.G.] to have mandatory exclusion authority for misdemeanor offenses” like his own.  Id.  Petitioner also contends that “[a]t least three accepted canons of statutory interpretation support” his position.  Id. at 6. 

Each premise of Petitioner’s argument is incorrect, beginning with the claim that section 1128(a)(1) of the Act is ambiguous.  The Board has held repeatedly that “there is no ambiguity in section 1128(a)(1).”  Dr. Timothy Baxter, DAB No. 3074, at 28 (2022), aff’d, No. 3:23-cv-92, 2024 WL 627262 (E.D. Va. Feb. 14, 2024), aff’d, 136 F.4th 70 (4th Cir. 2025); see also Douglas Schram, R.Ph., DAB No. 1372, at 13 (1992); Napoleon S. Maminta, M.D., DAB No. 1135, at 7 (1990).  Per the statute’s plain language, the Secretary “shall exclude,” meaning must exclude, anyone who “has been convicted of a criminal offense related to the delivery of an item or service” under Medicare or a state health care program, meaning any program-related offense.  Act § 1128(a)(1) (emphasis added).  Thus, “the text of section 1128(a)(1) plainly applies to all criminal offenses related to federal health care programs and makes no distinction between misdemeanor and felony convictions.”  Craig Richard Wilder, M.D., DAB No. 2416, at 6-7 (2011) (internal quotation marks omitted).  As the ALJ correctly stated, under a “plain reading” of section 1128, Congress used the word “felony” when limiting an exclusion to felonies, “misdemeanor” when limiting an exclusion to misdemeanors, and “criminal offense” to encompass “either a felony or misdemeanor.”  ALJ Decision at 5.  Here, as previously, there has been no showing “that language in section 1128(a)(1) is susceptible to two different reasonable interpretations, nor do we find any ambiguity in that provision.”  See Baxter at 29.  Under the plain statutory language, “the fact that Petitioner was convicted of a misdemeanor, rather than a felony, is inconsequential under section 1128(a)(1).”  Id. at 26; see also Lorna Fay Gardner, DAB No. 1733, at 5 (2000) (rejecting contention “that any individual or entity convicted of a misdemeanor is subject to the permissive, rather than the mandatory, exclusion provisions” of section 1128 and holding that “the plain language of the statute is inconsistent with Petitioner’s proposed interpretation”).

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Because section 1128(a)(1) of the Act is not ambiguous, there is no need to consult its legislative history, for generally “the plain meaning of the statute should control” and “resort to legislative history is appropriate only where a statute is ambiguous.”  Florence Peters, D.P.M., DAB No. 1706, at 7 (1999).  Yet even if consulted, section 1128’s legislative history does not support Petitioner’s position.  The Medicare and Medicaid Patient and Program Protection Act of 1987 (MMPPPA), Pub. L. No. 100-93, established both the mandatory exclusion provisions in section 1128(a) and the permissive exclusion provisions in section 1128(b); they are not in conflict.  See Boris Lipovsky, DAB No. 1363, at 7 (1992).  “If a conviction could fall either in section 1128(a)(1) or 1128(b),” the I.G.’s need to choose between them “would nullify the mandatory nature of” section 1128(a)(1) and “violate Congress’s intent to strengthen the mandatory category of exclusion offenses, one of its primary purposes in enacting the MMPPPA.”  Id. at 9 (citing S. Rep. No. 100-109, at 5 (1987), reprinted in 1987 U.S.C.C.A.N. 686); see also Jack W. Greene, DAB No. 1078, at 12 (1989) (“The legislative history confirms that, by means of its revisions in 1987, Congress intended to expand and strengthen, rather than weaken, the already existing mandatory exclusion requirements.”). 

Petitioner also incorrectly claims that the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”) “create[d] an express distinction between program related crimes that were felonies and program related crimes that were misdemeanors,” and thus effected a “fundamental change in the statute” that the Board has ignored.  See P. Br. at 5-6.  “One effect of HIPAA,” we have noted, “was to require mandatory exclusions under section 1128(a) for some felony offenses that had previously been subject to permissive exclusions under section 1128(b).”  Peters at 4 n.1.  When enacting HIPAA, “[t]he distinction Congress created between felonies and misdemeanors applied only to nonprogram-related offenses.”  Gardner at 6 (emphasis added).  Again, the general intent and effect of this legislative change was to strengthen, not dilute, the mandatory exclusions.  See id. (stating HIPAA “made the provisions governing nonprogram-related criminal offenses more stringent by moving felony convictions for such offenses to the mandatory exclusion subsection”); Peters at 9 (recognizing that “a principal effect of HIPAA was to remove the Secretary’s discretion to decline to exclude individuals convicted of certain felony offenses”).  Thus, “even after the amendment of the provisions in 1996,” all “program-related crimes continued to be subject to mandatory exclusion.”  Gardner at 7.

We also reject any “argument that principles of statutory construction require reading only section 1128(b) to apply,” because we have “interpreted the relationship of the permissive and mandatory provisions on criminal offenses in a way that gives meaning to both sections without doing violence to the words used by Congress.”  David D. DeFries, D.C., DAB No. 1317, at 4 (1992).  Petitioner invokes three principles of statutory construction, but none of them supports Petitioner’s reading of the law.

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Petitioner argues that the I.G.’s interpretation of section 1128(a)(1) is “disfavored” because it renders section 1128(b)(3) superfluous, but the ALJ correctly rejected that argument.  P. Br. at 6; ALJ Decision at 5.  Petitioner maintains that if section 1128(a)(1) covered all program-related crimes, “regardless of severity,” then “Congress had no reason to enact [section 1128](b)(3)’s limitation to misdemeanor crimes.”  P. Br. at 7.  “Stated simply,” Petitioner argues, “there would be no need for a separate section for misdemeanor offenses if every single criminal offense involving the delivery of a health care item [or] service were covered by Section 1128(a) of the Act.”  Id.  Petitioner misconstrues these statutory provisions.  First, section 1128(b)(3) does not apply here.  Section 1128(b)(3) authorizes exclusion of an individual convicted “of a misdemeanor relating to the unlawful manufacture, distribution, prescription, or dispensing of a controlled substance,” and Petitioner’s conviction for Conversion of Government Money does not meet that description.3  Second, section 1128(a)(1) does not apply to all crimes related to the delivery of a health care item or service, but specifically applies only to program-related offenses.  There is no similar counterpart for program-related misdemeanors in section 1128(b).  We have rejected arguments comparable to Petitioner’s for reasons that apply equally to this case.  See, e.g., Shaun Thaxter, DAB No. 3053, at 17 (2021) (rejecting excluded individual’s argument that “to construe section 1128(a)(1) to require his exclusion would render other parts of” the statute superfluous, because that argument “wholly ignores the focus on program-related offenses under section 1128(a)(1) that distinguishes it from other parts of the Act”); Scott D. Augustine, DAB No. 2043, at 14 (2006) (holding petitioner was “incorrect” in contending that ALJ’s construction of section 1128(a)(1) impermissibly nullified a permissive exclusion provision, because “[w]hen conduct falls within the intersection of the two provisions, section 1128(a)(1), as the mandatory provision, applies”).

We also reject Petitioner’s argument that a contextual, structural reading of section 1128 of the Act supports his view.  “In context,” Petitioner asserts, if section 1128(a)(1) allowed “mandatory exclusion for all crimes (felonies and misdemeanors),” then “there would never be a reason for the [I.G.] to ever resort to” a permissive exclusion “for misdemeanor convictions if all such crimes were swept away by” section 1128(a)(1).  P. Br. at 7.  This argument is a reframing of Petitioner’s contention, which we already have refuted, that reading section 1128(a) to encompass all program-related crimes renders superfluous the permissive exclusions for certain misdemeanors in section 1128(b).  When we read section 1128(a)(1) in context, “the nature of a petitioner’s conviction, i.e., misdemeanor versus felony, is irrelevant,” and exclusion is required for “any” program-related criminal offense.  Tarvinder Singh, D.D.S., DAB No. 1752, at 3 (2000).

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Lastly, Petitioner misapplies the canon of statutory construction “that the specific governs the general.”  See P. Br. at 8.  Petitioner argues that the I.G.’s and ALJ’s reading of section 1128 “improperly places undue emphasis on the more general language contained in Section 1128(a),” when “the more specific provision of the statute, in this case [section 1128](b)(3),” should control.  Id.  As already stated, section 1128(b)(3) is inapplicable because Petitioner was not convicted of a misdemeanor relating to a controlled substance.  Moreover, the Board has long rejected the contention “that the more specific reference to misdemeanor offenses” in section 1128(b) “should control over the general reference to program-related criminal offenses of all degrees as requiring mandatory exclusion under section 1128(a)(1).”  Gardner at 6.  We have summarized:

The statute as enacted by Congress draws a distinction between felony and misdemeanor offenses only for fraud committed in connection with the delivery of a health care item or service in a health program other than Medicare or State health care programs.  See sections 1128(a)(3) and 1128(b)(1)(A).  Section 1128(a)(1), which pertains to criminal offenses related to the delivery of an item or service under [Medicare or State health care] programs, does not draw a distinction by degree of offense.  Consequently, the plain language of the statute is inconsistent with Petitioner’s proposed interpretation.   

Id. at 5 (emphasis modified); accord Tamara Brown, DAB No. 2195, at 7 (2008).

Thus, the ALJ committed no error in concluding that the I.G. lawfully excluded Petitioner under section 1128(a)(1) of the Act.  

2. The Act requires Petitioner’s exclusion for a minimum of five years.

We give no weight to Petitioner’s suggestion that a five-year exclusion is unreasonable.  P. Br. at 3 (discussing “in context” the timing and severity of his criminal offense in relation to the length of his exclusion).  If section 1128(a)(1) of the Act mandates an individual’s exclusion, then it must be for at least five years, as the Board repeatedly has confirmed.  See, e.g., Olandis Moore, DAB No. 2963, at 7 (2019) (upholding five-year exclusion under section 1128(a)(1) of the Act because “a minimum five-year exclusion must be imposed on a person who has been convicted of a program-related offense”).  We have “long held that, when a conviction falls within the scope of section 1128(a),” the I.G. must impose “a minimum five-year exclusion” and “does not have discretion to elect to impose a shorter exclusion period under an alternative permissive provision.”  Nenice Marie Andrews, DAB No. 2656, at 5 (2015) (citing cases); accord Colburn at 9.  “The Board has no authority in these circumstances to change the legal basis for exclusion or to reduce Petitioner’s exclusion to less than five years.”  Haro at 17.

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Petitioner also may not raise “pleas for equity on the grounds that the length of the exclusion is excessive based on the particular circumstances which Petitioner asserts about the offense.”  Henry L. Gupton, DAB No. 2058, at 13 (2007).  Such “contentions have no merit” here “because the length of the exclusion imposed by the I.G. is the minimum mandated by the statute.”  Id.

Conclusion

We affirm the ALJ Decision.