Patricia Chinyere Akamnonu, ALJ Ruling 2025-16 (HHS-CRD May 14, 2025)

RULING DISMISSING CASE

Petitioner, Patricia Chinyere Akamnonu, is a registered nurse, licensed in Texas.  Almost nine years after it was imposed, she appeals her 55-year exclusion from participation in Medicare, Medicaid, and all federal health-care programs.  The Inspector General (IG) moves to dismiss her appeal as untimely filed.

I agree that Petitioner’s appeal is untimely, and, for the reasons discussed below, I dismiss Petitioner’s appeal.

Background

In a notice letter dated April 29, 2016, the IG advised Petitioner Akamnonu that, based on her criminal conviction in the United States District Court for the Northern District of Texas, the IG was excluding her from participating in all federal health care programs for a period of 55 years, as provided for under section 1128(a)(1) of the Social Security Act (Act).  IG Ex. 1.1

Page 2

In a section titled “HOW TO APPEAL YOUR EXCLUSION,” the notice explained Petitioner’s appeal rights:  she could request a hearing before an administrative law judge; and the “request for hearing must be made in writing within 60 days of receiving” the IG’s notice letter.  The notice also explained that the date she received the notice is “presumed to be five (5) days after the date of such notice unless there is a reasonable showing to the contrary.”  IG Ex. 1 at 3 (emphasis added).

Petitioner was incarcerated at the time, and the IG mailed the notice to her at the Federal Medical Center Carswell, Fort Worth, Texas.  IG Ex. 1.  Petitioner has not claimed that this address was incorrect.

Almost nine years later, on February 18, 2025, Petitioner filed her appeal, asserting that she was unable to appeal within 60 days “due to mismanaged representation.”  Hrg. Req. Significantly, she did not deny receiving the notice.

The IG moves to dismiss Petitioner’s hearing request because it is untimely.  With her motion and brief in support (IG Br.), the IG submits one exhibit (IG Ex. 1).  Petitioner submits a written response (P. Br.) with one exhibit, marked “A” (P. Ex. A).

Discussion

1. Petitioner’s hearing request must be dismissed pursuant to 42 C.F.R. § 1005.2(e)(1) because it was not timely filed.2

Under section 1128(a)(1) of the Act, the IG (acting for the Secretary of Health and Human Services) must exclude an individual who has been convicted under federal or state law of a criminal offense related to the delivery of an item or service under Medicare or a state health care program.  42 C.F.R. § 1001.101(a).  An exclusion brought under section 1128(a)(1) must be for a minimum period of five years.  Act § 1128(c)(3)(B); 42 C.F.R. § 1001.102(a).  The IG may increase the period of exclusion, based on certain aggravating factors that are not offset by any mitigating factor or factors.  42 C.F.R. § 1001.102.

The individual may appeal the IG’s determination, but, by statute and regulation, must request a hearing within 60 days after she receives notice that the IG has decided to exclude her from program participation.  Act §§ 205(b), 1128(f)(1); 42 C.F.R. § 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).  The regulations include no good-cause exceptions for untimely filing; they provide that the ALJ will dismiss a hearing request that is not filed in a timely manner.  42 C.F.R. § 1005.2(e)(1); John Maiorano, R. Ph., v. Thompson, Civil Action No. 04-2279 at 6

Page 3

(D. N.J. 2008); Toni De Lanoy, DAB No. 3127 at 12 (2024); Boris Sachakov, M.D., DAB No. 2707 at 4 (2016); Kenneth Schrager, DAB No. 2366 at 3 (2011).

Here, Petitioner does not claim that the address on the notice letter was incorrect.  She does not deny receiving the notice.  Instead, she complains, without further explanation, that she was “unable to meaningfully access this process due to ineffective or absent legal representation and substantial restrictions on communication[s] and legal action[s] while incarcerated.”  P. Br. at 1.

Petitioner points out that the presumption of receipt is rebuttable and claims that she has rebutted it.  P. Br. at 1-2.  She is correct that the presumption is rebuttable, but she has not rebutted it.  See Toni De Lanoy, DAB No. 3127 at 9 (agreeing that a successful rebuttal must demonstrate facts that call the presumed receipt “directly into question”; speculation or self-serving denials of receipt, even if given under oath, are insufficient to rebut the presumption).  Petitioner submits what she characterizes as her affidavit, although she did not sign it.  In that document, she asserts that, when the notice letter was sent (April 29, 2016), she was incarcerated, and she remained incarcerated until August 2020.  While incarcerated, her “access to regular legal correspondence and materials was extremely limited.”  P. Ex. A.  Although she asserts that she did not receive the notice letter “in a manner that allowed [her] to understand or timely act on [her] appeal rights,” she does not deny receiving it.  Id.

Petitioner concedes that she “became fully aware of the [IG’s] exclusion and its implications” after her release (in August 2020) but does not explain why she then waited until February 2025 to file an appeal.  She complains that her attorney abandoned her and that she was “unaware of the precise appeal deadline or how to initiate an appeal.”  In fact, the process is straight-forward, and the notice letter explains it in simple terms.  If she were unable to use the Departmental Appeals Board’s electronic filing system, she could have submitted her request by mail to the address provided.  IG Ex. 1 at 3.

Petitioner also argues that “Constitutional due process” requires that she be granted a hearing and that “ineffective counsel” justifies “equitable tolling.”  First, 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 (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); Green 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)).

Second, the regulations do not permit an ALJ to excuse a petitioner’s failure to meet the regulatory filing requirements based on equitable grounds.  Kenneth Schrager, DAB No.

Page 4

2366 at 6; see Michael Bozelly Jones, M.D., CR Docket No. 23-574 (September 1, 2023), DAB No. 3113 (2023) (declining review of ALJ dismissal); Boris Sachakov, M.D., DAB No. 2707 at 4 (holding that section 1005.2(e)(1) mandates dismissal of an untimely hearing request); Gary Grossman, DAB No. 2267 at 5 (2009) (“[T]he ALJ was required to dismiss Petitioner’s hearing request if it was not timely filed.”).  

Ruling

The IG issued a notice of exclusion on April 29, 2016.  Petitioner has not denied receiving it.  Almost nine years later, on February 18, 2025, she appealed the exclusion.  Her appeal is untimely by years and must be dismissed.  I therefore dismiss this appeal pursuant to 42 C.F.R. § 1005.2(e)(1).