Valerie Fain, ALJ Ruling 2024-6 (HHS CRD April 4, 2024)

RULING DISMISSING PETITIONER’S REQUEST FOR HEARING

Petitioner, Valerie Fain, filed a request for hearing challenging the determination by Respondent, the Inspector General of the Department of Health and Human Services (IG), to exclude her from participation in federal health care programs under section 1128(a)(1) of the Social Security Act (the Act).  This Ruling constitutes acknowledgment of receipt of that request by the Civil Remedies Division and my designation to hear and decide this case.  Petitioner’s hearing request follows an earlier request for hearing she filed pertaining to the same exclusion action, which on the IG’s motion I dismissed as untimely.  For the reasons outlined below, I dismiss Petitioner’s hearing request on my own motion.

I. Background

On May 28, 2021, the IG advised Petitioner by letter of her exclusion from participation in Medicare, Medicaid, and all federal health care programs for five years.  The IG explained she excluded Petitioner for a conviction related to the delivery of an item or service under the Medicare or a State health care program, including the performance of management or administrative services relating to the delivery of items or services, under any such program.  Petitioner submitted her request for hearing to the Civil Remedies

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Division via DAB E-File on April 21, 2023, resulting in my designation to hear and decide this case.  That matter was docketed before me as C-23-419.

On April 25, 2023, I issued an Acknowledgment and Pre-hearing Order (Pre-hearing Order) allowing the IG to file a motion to dismiss if she believed Petitioner filed an untimely hearing request without good cause.  The IG moved to dismiss.  Petitioner filed a response opposing the IG’s motion.  On June 5, 2023, I issued an order finding Petitioner’s hearing request untimely and dismissing it pursuant to 42 C.F.R. § 1005.2(e)(1).

On March 19, 2024, Petitioner filed another request for hearing (P. Hearing Req.) in the Civil Remedies Division.  This matter was docketed before me as C-24-319.  As the basis for appeal, Petitioner’s hearing request identifies the same May 28, 2021 notice of exclusion that caused her to file her first appeal.  Unlike that appeal, however, Petitioner does not challenge her exclusion but instead asks that I “consider reinstating [her] eligibility to work in the health fields.”  P. Hearing Req. at 1.  She contends she is now eligible for reinstatement because the charges against her which formed the basis for her exclusion have been dismissed.  Id.  Petitioner included a copy of an order issued by a judge in the Circuit Court of Cook County, Illinois discharging her from probation and dismissing the matter.  DAB E-file Dkt. No. C-24-319, Doc. No. 1b (Discharge Order).

II. Petitioner’s Request for Hearing Must be Dismissed.

A. Applicable Law

The IG’s regulations permit an individual like Petitioner to challenge exclusion by the IG before an Administrative Law Judge in the Civil Remedies Division.  42 C.F.R. § 1001.2007(a); 42 C.F.R. § 1005.2(a).  My jurisdiction over such a challenge is limited to whether a basis exists for the imposition of exclusion and if the period of exclusion is greater than five years, whether its length is unreasonable.  42 C.F.R. § 1001.2007(a)(1),(2).

Such a challenge must be filed within 60 days of receiving a notice of exclusion.  42 C.F.R. § 1001.2007(b).  The regulations require me to dismiss an untimely hearing request.  42 C.F.R. § 1005.2(e)(1); John Maiorano, R. Ph. v. Thompson, Civil Action No. 04-2279, 2008 WL 304899 at *6 (D.N.J. Feb. 1, 2008).  They also require me to dismiss a hearing request that “fails to raise any issue which may be properly addressed in a hearing.”  42 C.F.R. § 1005.2(e)(4).

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B. Petitioner’s hearing request seeks relief I cannot provide and therefore raises an issue that cannot be properly addressed in a hearing.

Petitioner does not seek my review of either the basis for her exclusion or its length.  42 C.F.R. § 1001.2007(a); 42 C.F.R. § 1005.2(a).  Instead, she contends she is now eligible for reinstatement based on a state court’s order discharging her from probation.  P. Hearing Req. at 1.  But I have no authority to reinstate an individual excluded by the IG.  42 C.F.R. § 1001.3002(f) (“An ALJ may not require reinstatement of an individual or entity in accordance with this chapter.”).  Only the IG may reinstate an excluded individual or entity.  See 42 U.S.C. § 1320a-7(g)(2);42 C.F.R. § 1001.3001(a)(1) (“. . . .an excluded individual. . .may submit a written request for reinstatement to the OIG. . .”); 42 C.F.R. § 1001.3002(a) (“The OIG will authorize reinstatement if it determines. . . ”); Michael Lawton, MD, MBA, DAB No. 3077 (2022) at 2 (“Only the [IG] can authorize reinstatement . . . ”).1  Because I have no authority to consider her request for reinstatement, Petitioner’s hearing request “fails to raise any issue which may be properly addressed in a hearing.”  42 C.F.R. § 1005.2(e)(4).  I am required to dismiss her hearing request.  Id.

C. Petitioner’s hearing request otherwise requires dismissal.

Even if I broadly construed her hearing request to challenge her exclusion rather than seek reinstatement, Petitioner’s hearing request must still be dismissed because I previously dismissed her claim as untimely.  Petitioner challenged the same exclusion action before me in her prior appeal in C-23-419.  After permitting both parties the opportunity to present arguments concerning the timeliness of her hearing request, I found Petitioner failed to rebut the presumptive receipt of the IG’s notice five days after the IG issued it and thus failed to timely file her hearing request before me within 60 days thereafter.  As a result, I dismissed Petitioner’s appeal pursuant to 42 C.F.R. § 1005.2(e)(1).

My dismissal in C-23-419 explained Petitioner had the right to appeal my ruling to the Departmental Appeals Board (the Board) within 30 days.  She has not done so.  My dismissal of her case therefore became final – as did my finding that her challenge to the IG’s exclusion action against her was untimely.  Petitioner cannot now relitigate her claim.  See Montana v. United States, 440 U.S. 147, 153 (1979) (the doctrine of res judicata or claim preclusion provides “a final judgment on the merits bars further claims by the parties or their privies based on the same cause of action.”); see also Civ. Remedies Div. P. § 22(c) (“Unless re-opened upon request, dismissals are presumed to be

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the final resolution of a party’s request for a hearing before an ALJ.”).2  Petitioner’s appeal remains untimely and therefore must be dismissed pursuant to 42 C.F.R. § 1005.2(e)(1).

III. Appeal Rights

In its guidelines to appellate filers, the Board states “An ALJ’s dismissal of a hearing request on the ground that there is no right to a hearing or that the hearing request is untimely or fails to meet the content requirements for a hearing request, if dispositive of the entire case before the ALJ, may be appealed to the Board.”  U.S. Dep’t of Health & Human Servs., Departmental Appeals Board, Appellate Division Practice Manual, Will the Board consider an interlocutory appeal of a ruling by an Administrative Law Judge?, available at https://www.hhs.gov/about/agencies/dab/different-appeals-at-dab/appeals-to-board/practice-manual/index.html#14 (last rev. Aug. 28, 2017).

It therefore appears the Board may consider it appropriate to hear Petitioner’s appeal in this case if she wishes to file one.  In that case, she should review the guidelines explaining how to file an appeal before the Board, entitled “Guidelines – Appellate Review of Decisions of Administrative Law Judges in Cases to Which Procedures in 42 C.F.R. Part 1005 Apply,” available at https://www.hhs.gov/about/agencies/dab/different-appeals-at-dab/appeals-to-board/guidelines/procedures/index.html (last rev. Feb. 7, 2012).

If Petitioner wishes to file an appeal, she must do so within 30 days of receipt of this dismissal.  She may contact the Appellate Division Director at (202) 565-0208 for further assistance.