Sonny Austin Ramdeo, ALJ Ruling 2024-13 (HHS-CRD August 16, 2024)

DISMISSAL

In 2015, Petitioner, Sonny Austin Ramdeo, was convicted of wire fraud and money laundering, both felonies, and sentenced to 240 months in prison, followed by three years of supervised release.  Based on these convictions, the Inspector General (IG) has excluded him from participating in Medicare, Medicaid, and all federal health care programs.  The IG based the exclusion on section 1128(a)(1) of the Social Security Act. 

Eight years after the IG sent him notice of the exclusion, Petitioner appealed.  The IG has moved to dismiss the appeal as untimely. 

I grant the IG’s motion and dismiss Petitioner’s hearing request as untimely. 

Background

In a notice letter, dated May 31, 2016, the IG advised Petitioner Ramdeo that the IG proposed excluding him from program participation for a period of 55 years, pursuant to section 1128(a)(1) of the Social Security Act.  P. Ex. 1.  In a section titled “HOW TO APPEAL YOUR EXCLUSION,” the notice explained Petitioner’s appeal rights:  he could request a hearing before an administrative law judge; the “request for hearing must 

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be made within 60 days of receiving the [IG’s] notice of exclusion.”  P. Ex.1 at 4 (emphasis added).  The notice also explained that the date he received the notice is presumed to be five days after the date of the notice unless there is a reasonable showing to the contrary.  Id. 

More than eight years later, on July 4, 2024, Petitioner filed a document titled “Informal Brief of Petitioner.”  (P. Br.).  In that document, he explained that he was appealing the IG’s determination to exclude him from program participation.  He admitted receiving the IG’s notice and did not challenge the presumption of timely receipt.  P. Br. at 1.  

The IG moves to dismiss Petitioner’s hearing request (IG Motion), and Petitioner has responded to the IG’s motion (P. Resp.).  The IG submits one exhibit (IG Ex. 1).  Petitioner also submits exhibits, some with his initial appeal brief, and some (identified as P. Exs. 1, 3, 4, and 5) are submitted with his response to the IG’s motion to dismiss.  

Discussion

By statute and regulation, the individual who is being excluded must request a hearing within 60 days after he receives notice that the IG is excluding him from program participation.  Social Security Act §§ 205(b), 1128(f)(1); 42 C.F.R. §§ 1001.2007(b), 1005.2(c).  The date of receipt is presumed to be five days after the date of the notice unless there is a reasonable showing to the contrary.  42 C.F.R. § 1005.2(c); see 42 C.F.R. § 1001.2003(a) (referring to section 1005.2 for definition of “receipt of the notice”).  The regulations include no good-cause exceptions for untimely filing, providing that the ALJ will dismiss a hearing request that is not filed in a timely manner.  42 C.F.R. § 1005.2(e)(1); Maiorano v. Thompson, No. 04-2279, 2008 WL 304899 at *3 (D.N.J. February 1, 2008); Boris Sachakov, M.D., DAB No. 2707 at 4 (2016); Kenneth Schrager, DAB No. 2366 at 3 (2011). 

Because I am bound by the Social Security Act and regulations, I must dismiss this appeal.  42 C.F.R. § 1005.4(c)(1); Ilya Kogan, DAB No. 3034 at 6 (2021) (citing W. Scott Harkonen, M.D., DAB No. 2485 at 22, aff’d Harkonen v. Sebelius, No. 13-0071 PJH, 2013 WL 5734918 (N.D. Cal. Oct. 22, 2013)).  

Petitioner, however, cites four recent Supreme Court opinions and argues that, given the “profound legal implications” of these decisions, his appeal “should be considered timely and meritorious.”  P. Resp. at 2.  Although others are better-positioned to debate the implications of these recent opinions, even a cursory review of them shows that the Court did not invalidate or re-interpret any portion of the statute governing these proceedings – the Social Security Act.  Moreover, Petitioner has not established that the Supreme Court opinions have any impact, much less “profound legal implications,” on his untimely appeal here. 

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Corner Post v. Board of Governors of the Federal Reserve System, 144 S. Ct. 2440 (2024).  Petitioner asserts that in Corner Post, the Supreme Court held that the statute of limitations begins to run when a final agency action causes injury.  From this, he argues that, as long as he is experiencing “ongoing harm caused by the exclusion, such as substantial financial damage and reputational harm,¹ [which has] continued beyond the [time of the] initial exclusion notice,” the time for filing an appeal remains open.  P. Resp. at 3.  Under Petitioner’s rationale, so long as his injuries continue, he has the right to appeal his exclusion.  Presumably, this could last as long as his period of exclusion – 55 years. 

Corner Post did not give Petitioner an indefinite period in which to file an appeal.  That case was brought under the Administrative Procedures Act (APA), not the Social Security Act, and turned on the precise text of that statute.  The plaintiff there challenged a Federal Reserve Board regulation that was more than six years old.  The question presented was whether, under the APA, the federal six-year statute of limitations begins to run when the regulation is promulgated or when the regulation first injures a potential plaintiff.  Even if I agreed that Corner Post applies to a case brought under the Social Security Act (which I do not), the time for appealing would have started to run when the agency action first caused Petitioner an injury, which was the date the exclusion went into effect (June 20, 2016 – 20 days after the date of the notice letter).  IG Ex. 1 at 1.  Petitioner has not presented any theory under which he would have more than eight years after first experiencing an injury to file an appeal. 

Loper Bright Enterprises v. Raimondo, 144 S. Ct. 2244 (2024).  In Loper, the Court overruled the longstanding principle of Chevron deference, which directed courts to defer to an agency’s reasonable interpretation of an ambiguity in a law that the agency enforces.  Petitioner does not point to any ambiguity in the straightforward statutory language of the Social Security Act, which sets a 60-day deadline for appealing an exclusion.  Instead, he points to Loper to argue the merits of his appeal and to attack an IG advisory bulletin that provides guidance on exclusions.²  But, because he has not filed a timely appeal, those merits are not before me. 

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SEC v. Jarkesy, 144 S. Ct. 2117 (2024).  In Jarkesy, the Court considered monetary penalties imposed by the Securities and Exchange Commission for securities fraud.  The Court ruled that, under the Seventh Amendment to the U.S. Constitution, those who are charged such penalties have the right to a jury trial before an Article III judge.  Based on this, Petitioner asserts that the IG’s exclusion process lacks “adequate procedural safeguards, including a right to a jury trial.”  P. Resp. at 6.  He concludes that his exclusion must be “re-evaluated in light of these new legal standards to ensure compliance with due process requirements.”  P. Resp. at 7.  Under Petitioner’s theory, everyone who is excluded could seek review, and, presumably, that review would not be before me but before a U.S. District Court judge. 

I have no authority to review constitutional challenges.  Funmilola Mary Taiwo, DAB No. 2995 at 9-10 (2020); Donna Rogers, DAB No. 2381 at 5 (2011); Susan Malady, DAB No. 1816 at 4 (2001); see also 42 C.F.R. § 1005.4(c)(1).  Moreover, as the Board pointed out in Ilya Kogan, federal courts have repeatedly rejected constitutional challenges to exclusion proceedings.  Kogan, DAB No. 3034 at 12 (citing Manocchio v. Kusserow, 961 F.2d 1539 (11th Cir. 1992); Greene v. Sullivan, 731 F. Supp. 838 (E.D. Tenn. 1990); Parrino v. Price, 869 F.3d 392, 397-98 (6th Cir. 2017); Erickson v. United States ex rel. Dep’t of Health & Human Servs., 67 F.3d 858 (9th Cir. 1995)). 

Even if I could review Petitioner’s constitutional claim, he asks me to accept jurisdiction of a case that, according to his reading of Jarkesy, I have no authority to review.  I am not sure what form that would take, and Petitioner offers no insights. 

Fortunately, I need not consider this conundrum because the Jarkesy opinion does not apply to IG exclusions.  It is limited to monetary remedies that are designed to punish or deter the wrongdoer.  Jarkesy, 144 S. Ct. at 2129.  An exclusion under section 1128 does not involve a monetary penalty, and, as multiple courts have pointed out, it is civil and remedial rather than criminal and punitive.  Price, 869 F.3d at 397-98; Erickson, 67 F.3d at 864 n.2; Manocchio, 961 F.2d at 1542; Greene, 731 F. Supp. at 840; see Joann Fletcher Cash, DAB No. 1725 at 6 (2000).  The statute’s purpose is to protect federal health care programs and the program’s beneficiaries and recipients from untrustworthy providers.  A provider convicted of a criminal offense related to the delivery of an item or service under Medicare or Medicaid is presumed by Congress to be untrustworthy and a threat to federal health care programs, their beneficiaries, and their recipients.  

Cargill v. Garland, 602 U.S. 406 (2024).  Finally, Petitioner cites the Supreme Court opinion in Cargill v. Garland for the proposition that agency actions require “clear congressional mandates.”  P. Resp. at 7.  Section 1128 unambiguously directs the Secretary of Health and Human Services to exclude carefully defined categories of individuals.  The statute also unequivocally provides that the individual who is being 

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excluded must request a hearing within 60 days after he receives notice.  Petitioner failed to do that, and his appeal must therefore be dismissed. 

Conclusion

The IG issued a notice of exclusion on May 31, 2016, and Petitioner does not deny that that he received the notice no later than Monday, June 6, 2016.  More than eight years later, in a brief filed on July 4, 2024, Petitioner appealed the IG’s determination to exclude him.  His appeal is untimely by years and must be dismissed.  I therefore dismiss his appeal pursuant to 42 C.F.R. § 1005.2(e)(1). 

Endnotes

¹  I doubt that the exclusion damaged Petitioner’s reputation more than two felony convictions and a lengthy prison sentence.  

²  I am not aware of any case that has turned on this or any other advisory bulletin.  The IG generally cites the statute and regulations to support an exclusion.  And Petitioner has not produced any evidence that suggests that his exclusion was based on a sub-regulatory interpretation of the statute.  Petitioner also claims that the statute requires a direct connection between the crime and the delivery of a healthcare item or service.  The statute does not say “direct connection”; it says that the crime must be “related to” the delivery of a healthcare item or service, a connection that is less than direct.  Social Security Act § 1128(a)(1).