Uzochukwu Godfrey Nwogene, DAB CR5201 (2018)

DECISION

I sustain the determination of the Inspector General (I.G.) to exclude Petitioner, Uzochukwu Godfrey Nwogene, from participating in Medicare, state Medicaid programs, and other federally funded health care programs for a period of at least five years.

I. Background

Pursuant to my pre-hearing order the I.G. filed a pre-hearing exchange consisting of a brief and four proposed exhibits that he identified as I.G. Ex. 1-I.G. Ex. 4. Petitioner filed a letter in response to the I.G.’s exchange plus a document entitled “Work in Lieu of Confinement Agreement.” I identify this document as P. Ex. 1.I allowed Petitioner up to about 30 days to respond to the I.G.’s exchange. Petitioner elected to file a response less than a week after the I.G. filed his exchange. He has not indicated that he desires to file any additional items on his behalf.

I receive the parties’ exhibits into the record.

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II. Issues, Findings of Fact and Conclusions of Law

A. Issues

The issues are whether the I.G. must exclude Petitioner and whether an exclusion period of at least five years is reasonable.

B. Findings of Fact and Conclusions of Law

The I.G. excluded Petitioner pursuant to the requirements of section 1128(a)(1) of the Social Security Act (Act). Section 1128(a)(1) mandates the exclusion of any individual who is convicted of a criminal offense relating to the delivery of an item or service under Medicare or a state Medicaid program. The minimum exclusion period that the I.G. must impose pursuant to section 1128(a)(1) is five years. Act § 1128(c)(3)(B).

Petitioner pled nolo contendere in a California state court to Count 1 of an indictment charging him with the offense of grand theft. I.G. Ex. 2 at 1; I.G. Ex. 4 at 6. Count 1 alleged that, from on or about January 1, 2012 through May 31, 2013, Petitioner “unlawfully took from the State of California (Medi-Care and Medi-Cal programs) property of a value in excess of four hundred dollars ($400) . . . .” I.G. Ex. 2 at 1-2. In accepting Petitioner’s plea, the court ordered, among other things that Petitioner pay restitution of $100,000 to the state of California. I.G. Ex. 4 at 6.

These facts establish that Petitioner was convicted of a program-related offense as is defined at section 1128(a)(1) of the Act.The California court’s acceptance of Petitioner’s nolo contendere plea is a conviction for purposes of section 1128(a)(1). Act § 1128(i)(3). In entering his plea, Petitioner acknowledged that he stole money from Medi-Cal, California’s Medicaid program. His crime is related to the delivery of a Medicaid item or service because the essence of it was Petitioner’s theft of funds from that program. Additional proof that Petitioner committed a program‑related crime lies in the fact that the court that accepted Petitioner’s plea sentenced him, among other things, to pay restitution.

Petitioner assumed responsibility for his crime in his response to the I.G.’s exchange. He requested that I reinstate him, evidently based on his acknowledgment of his crime and his acceptance of responsibility for it.

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I have no authority to reduce the exclusion period to less than at least five years. As I have explained, an exclusion of five years is the minimum mandatory period that the Act requires for any exclusion imposed pursuant to section 1128(a)(1). Therefore, I must sustain the minimum five-year exclusion that the I.G. determined to impose against Petitioner.