Nida M. Alshaikh, ALJ Ruling 2025-12 (HHS-CRD April 1, 2025)

RULING GRANTING THE INSPECTOR GENERAL’S MOTION TO DISMISS PETITIONER’S UNTIMELY REQUEST FOR HEARING

Petitioner, Nida M. Alshaikh, requested a hearing to contest the determination by the Inspector General (IG) to exclude her from participation in federal health care programs under section 1128(a)(1) of the Social Security Act (Act).  The IG has moved to dismiss this case, arguing that the appeal is untimely.  For the reasons explained below, the IG’s motion to dismiss is granted and Petitioner’s request for hearing is dismissed. 

I.     Background

By notice letter dated December 31, 2019, the IG informed Petitioner that she was being excluded from participation in Medicare, Medicaid, and all Federal health care programs for a minimum period of 10 years.  The IG imposed the exclusion due to Petitioner’s conviction in the State of Michigan, 30th Judicial Circuit Court, of a criminal offense related to the delivery of an item or service under the Medicare or a State health care program.  Departmental Appeals Board (DAB) E-File Docket No. 1a at 1.  On December 11, 2024, the Civil Remedies Division (CRD) received Petitioner’s request for a hearing.  On December 23, 2024, the CRD issued a letter, at my direction, acknowledging receipt of Petitioner’s hearing request.  The letter notified the parties that a telephone prehearing

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conference was scheduled for January 14, 2025.  Due to a scheduling conflict, on January 15, 2025, I issued an order rescheduling the prehearing conference for February 18, 2025.

At the prehearing conference, the parties agreed to provide briefs addressing the timeliness of Petitioner’s request for hearing. 

II.    Legal Authorities

An individual excluded under section 1128(a)(1) of the Act is entitled to reasonable notice and an opportunity for a hearing.  42 U.S.C. § 1320a-7(f)(1); 42 C.F.R. §§ 1001.2002, 1001.2007(a).  An individual may appeal an exclusion by filing a written request for hearing within 60 days of receiving the IG’s notice of exclusion.  42 C.F.R. §§ 1005.2(c), 1001.2007(b).  An individual is presumed to have received the IG’s exclusion notice within five days (excluding weekends and Federal holidays) from the date of the notice, unless the individual can make a reasonable showing to the contrary.  42 C.F.R. §§ 1005.2(c), 1005.12(b).  The regulations do not include a good-cause exception for untimely filing and require an ALJ to dismiss a hearing request that is not filed in a timely manner.  See 42 C.F.R. § 1005.2(e)(1); Maiorano v. Thompson, Civ. Action No. 04-2279, 2008 WL 304899, at *3 (D.N.J. Feb. 1, 2008).

III.   Petitioner’s Request for Hearing is Untimely

By notice dated December 31, 2019, the IG notified Petitioner that she was being excluded from participating in Medicare, Medicaid, and all other Federal health care programs for 10 years, pursuant to section 1128(a)(1) of the Act.  DAB E-File Docket No. 1a at 1.  The IG identified three aggravating factors considered in determining the length of the exclusion:  

1. The acts resulting in Petitioner’s conviction, or similar acts, caused, or were intended to cause, a financial loss to a government agency or program or to one or more other entities of $50,000 or more;
2. Such acts were committed over a period of one year or more; and
3. The individual or entity has been the subject of any other adverse action by any Federal, state, or local government agency or board if the adverse action is based on the same set of circumstances that serves as the basis for the imposition of the exclusion. 

Id. at 2.  Here, the IG noted that the court ordered Petitioner to pay $209,200 in restitution; the acts that resulted in the conviction took place from about May 2011 to about August 2016; and lastly, the Michigan Department of Health and Human Services suspended Petitioner’s participation, as a provider of services, in the Michigan Medicaid Program.  Id. at 2.

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The exclusion notice advised Petitioner of her appeal rights, explaining that Petitioner had 60 days to file a written request for hearing before an administrative law judge (ALJ).  DAB E-File Docket No. 1a at 4; see 42 C.F.R. § 1001.2002(c)(6).  Once the untimeliness of the hearing request is established, the only way that a petitioner can overcome a motion to dismiss is to make a “reasonable showing” to rebut the presumption of receipt of the notice.  Kenneth Schrager, DAB No. 2366 at 3-4 (2011).  The presumption of receipt may be rebutted when a petitioner’s statement denying receipt is accompanied by sufficient explanation and corroborating evidence.  Id. 

In this case, Petitioner does not dispute that she timely received the notice of exclusion, but argues that good cause exists for her untimely filing and that the IG’s motion to dismiss should be denied for the following reasons:  the statute’s plain language suggests that the ALJ may have discretion to not dismiss this case; equitable tolling should apply to toll the filing deadline due to Petitioner’s previous counsel’s ineffective assistance; and policy considerations favor not dismissing this matter.  See P. Req. for Hrg.; P. Br. at 1.  The IG objects to Petitioner’s arguments and requests that this matter be dismissed due to untimeliness. 

The regulation states that an ALJ will dismiss a hearing request not filed in a timely manner.  42 C.F.R. § 1005.2(e)(1).  I find that this language mandates the dismissal of an untimely hearing request when the receipt of the exclusion notice is not at issue.  The Departmental Appeals Board (the Board) has long held that section 1005.2(e)(1) mandates dismissal of an untimely hearing request.  Boris Sachakov, M.D., DAB No. 2707 at 4 (2016); Kenneth Schrager, DAB No. 2366 at 3 (2011); Gary Grossman, DAB No. 2267 at 5 (2009); Maiorano v. Thompson, Civil Action No. 04-2279, 2008 WL 304899, at *3.  Petitioner argues that under Loper Bright Enterprises v. Raimondo, 603 U.S. 369 (2024), courts need not defer to an agency’s interpretation of an ambiguous statute.  P. Br. at 1-2.  Contrary to Petitioner’s argument, the regulation is not ambiguous.  Interpreting the regulation as written and acknowledging previous decisions of the Board is not giving deference to the IG’s interpretation.  Furthermore, I do not have the authority to find invalid or refuse to follow a federal regulation.  42 C.F.R. § 1005.4(c)(1). 

Petitioner also argues that equitable tolling may be appropriate to toll Petitioner’s filing deadline because this case involves an unsophisticated claimant who relied on ineffective counsel to provide her with legal advice.  P. Br. at 2.  The U.S. Supreme Court has ruled that a petitioner seeking equitable tolling bears the burden of establishing that 1) the petitioner has been pursuing their rights diligently, and 2) that some extraordinary circumstances stood in the way and prevented timely filing.  Pace v. DiGuglielmo, 544 U.S. 408, 409 (2005).  Here, Petitioner has not proven that I have the authority to impose equitable tolling, nor has she proven that she has diligently pursued her appeal rights and that extraordinary circumstances prevented timely filing. 

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Petitioner argues that her prior counsel in the criminal proceeding deprived her of due process rights to appeal and contest her exclusion.  P. Br. at 2.  Regardless of the actions or inactions of Petitioner’s criminal defense attorney, it is difficult to believe that Petitioner, a licensed dentist, did not appreciate the gravity of her exclusion until over five years after the exclusion was imposed.  Especially when the exclusion notice explicitly states, “the scope of this exclusion is broad and will have a significant effect on your ability to work in the health care field.”  DAB E-File Docket No. 1a at 3.  

Lastly, Petitioner notes that the exclusion has made it difficult for her both financially and professionally.  DAB E-File Docket No. 6a ¶ 22.  To the extent that Petitioner requests equitable relief, I am unable to grant it.  The regulations do not permit an ALJ to excuse a petitioner’s failure to meet regulatory filing requirements based on equitable grounds.  Sonny Austin Ramdeo, DAB No. 3152 at 2 (2024).  

Accordingly, the IG’s motion to dismiss is GRANTED, and Petitioner’s untimely request for hearing is dismissed.