Darling Navidad Oki, DAB CR6577 (2024)

DECISION

The request for hearing of Petitioner, Darling Navidad Oki, is dismissed pursuant to 42 C.F.R. § 1005.2(e)(4),1 for failure to raise any issue that may properly be addressed in a hearing.

I.  Background

The Inspector General of the United States Department of Health and Human Services (IG) notified Petitioner by letter dated April 30, 2024, that she2 was excluded from participation in Medicare, Medicaid, and all federal health care programs for five years.  The IG cited section 1128(a)(1) of the Social Security Act (Act) as the authority for Petitioner’s exclusion based on her conviction in the Superior Court of California, County of Los Angeles (state court).  The IG notified Petitioner that her state court

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conviction was a basis for exclusion pursuant to section 1128(a)(1) of the Act because the criminal offense of which she was convicted was related to the delivery of an item or service under Medicare or a state health care program.  IG Exhibit (Ex.) 1.

Petitioner, who is not represented by counsel, timely filed a request for hearing (RFH) on May 9, 2024, and the case was assigned to me to hear and decide.  I convened a telephone prehearing conference on July 2, 2024, the substance of which is memorialized in my Prehearing Conference Order and Schedule for Filing Briefs and Documentary Evidence issued on July 3, 2024 (Prehearing Order).  During the prehearing conference, Petitioner waived an oral hearing.  The IG asserted during the prehearing conference that dismissal is required because Petitioner has identified no issue that may be properly addressed by me.  I set a briefing schedule for a combined motion to dismiss and briefing on the merits.  Prehearing Order ¶ 5.

On August 12, 2024, the IG timely filed a brief and motion to dismiss (IG Br.) and IG Exhibits 1 through 7.  On October 16, 2024, Petitioner filed a document.  On October 18, 2024, Petitioner filed a second document.  The two documents are treated as Petitioner’s brief in response to the IG’s motion to dismiss and brief.  On October 24, 2024, the IG filed a reply brief (IG Reply).

Petitioner has not objected to my consideration of IG Exhibits 1 through 7 and the documents are admitted as evidence.  Petitioner filed no proposed exhibits.

II.  Findings of Fact, Conclusions of Law, and Analysis

My conclusions of law are set forth in bold, followed by the pertinent facts and analysis.

1. Petitioner has not raised an issue that I may address.
2. Petitioner’s request for hearing must be dismissed pursuant to 42 C.F.R. § 1005.2(e)(4). 

Pursuant to 42 C.F.R. § 1001.2007(a)(1), an individual excluded by the IG may request review by an administrative law judge on the issues of whether:  (1) there is a basis for exclusion; and (2) the period of exclusion is reasonable.  However, when the IG imposes the minimum period of exclusion authorized by Congress, the regulation provides that there is no issue as to the reasonableness of the period of exclusion.  42 C.F.R. § 1001.2007(a)(2).  Pursuant to 42 C.F.R. § 1005.2(e)(4), I must dismiss a request for hearing that does not raise an issue that may be properly addressed in a hearing.  I am bound to comply with the regulations.  42 C.F.R. § 1005.4(c)(1).

Petitioner does not dispute that she was convicted in the state court of a crime for which exclusion is mandated by section 1128(a)(1) of the Act.  RFH; P. Br.  Petitioner admits

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she “made a mistake” and filed the instant appeal “to ask for forgiveness.”  RFH.  Petitioner urges that I consider that she is a victim, she admits she “made a mistake,” she has “taken responsibility,” she cooperated with the government, she is a good citizen, she has to struggle to provide for her children, and she asks “for leniency and a chance to continue using [her] professional license to serve [her] community.”  P. Br.

Congress mandated the exclusion of one 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.  Act § 1128(a)(1).  Petitioner admits she was convicted.  She does not deny that her conviction triggers exclusion under section 1128(a)(1) of the Act.  RFH; P. Br.  The IG has no choice but to exclude Petitioner and Petitioner has identified no issue for me to decide related to whether there is a basis for exclusion.

Further, the IG imposed an exclusion of five years, the minimum period authorized by Congress.  The IG has no discretion to impose a lesser period, and I may not reduce the period of exclusion below five years.  I cannot consider Petitioner’s prayers for relief to reduce the period of her exclusion.  The Departmental Appeals Board observed in Joann Fletcher Cash, DAB No. 1725 (2000), that the point of exclusion is to prevent untrustworthy individuals from involvement with protected health care programs.  That exclusion will have a limiting effect on an excluded individual’s future employment is a natural and predictable consequence of an exclusion and is not a bar to the mandatory imposition of exclusion.  Salvacion Lee, M.D., DAB No. 1850 at 4 (2002).  Pursuant to 42 C.F.R. § 1001.2007(a)(2), whether the period of Petitioner’s exclusion is reasonable is not an issue for my review because it is the minimum period authorized by Congress.

Petitioner’s arguments may be viewed as requests for equitable relief.  However, I have no authority to grant Petitioner any equitable relief.  Matthew J. Girardy, DMD, DAB No. 2987 at 7 (2020).

Accordingly, I conclude that Petitioner has raised no issue that may be properly reviewed by me, and dismissal is required by 42 C.F.R. § 1005.2(e)(4).

III.  Conclusion

For the foregoing reasons, Petitioner’s request for hearing is hereby dismissed.