Rosa Denise Fitzhugh, ALJ Ruling 2025-20 (HHS CRD June 30, 2025)

RULING DISMISSING CASE AND DENYING REOPENING

For the second time, Petitioner, Rosa Denise Fitzhugh, appeals her 20-year exclusion from participation in Medicare, Medicaid, and all federal health-care programs.  Her initial appeal of the same determination was resolved on November 6, 2020.  For the reasons discussed below, I decline to reopen that earlier determination, and I dismiss the current appeal.

BACKGROUND

Docket No. C-20-370.  In a notice letter dated February 28, 2020, the Inspector General (IG) advised Petitioner Fitzhugh that she was excluding her from participating in all federal health care programs for a period of 20 years, as provided for under section 1128(a)(1) of the Social Security Act (Act).  The notice explained that the exclusion arose from Petitioner's conviction, in the United States District Court for the Northern District of Georgia, of a criminal offense related to the delivery of an item or service under Medicare or a state health care program.

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Petitioner timely appealed.  The Civil Remedies Division received the appeal on March 12, 2020, docketed the matter as C-20-370, and assigned it to me.  The matter proceeded as follows:

• On May 27, 2020, I conducted a telephone prehearing conference, at which Petitioner and IG counsel appeared.  At the conference, I granted Petitioner a waiver from the requirement to register for and make all case filings through the Departmental Appeals Board Electronic Filing System.
• On May 28, 2020, I issued an Order and Schedule for Filing Briefs and Documentary Evidence, directing the IG to submit a short-form brief and supporting documentary evidence no later than July 27, 2020.  The IG timely submitted this prehearing exchange on July 21, 2020.
• On July 31, 2020, I issued an Order Setting Deadlines for Petitioner's Exchange and the IG's Reply, directing Petitioner to submit a short-form brief and supporting documentary evidence no later than September 18, 2020.
• Petitioner did not submit a prehearing exchange.
• On October 16, 2020, I issued an Order to Show Cause, requiring Petitioner to explain why she had not complied with my Order and directing her to file her prehearing exchange before October 30, 2020.  I advised her that I would dismiss her request for hearing for abandonment if I did not receive a timely response to the Order to Show Cause.
• Petitioner did not respond.
• On November 6, 2020, I dismissed Petitioner's hearing request, pursuant to 42 C.F.R. §§ 1005.2(e)(3), 1005.14(a)(5).

Docket No. C-25-745.  On June 23, 2025, more than five years after the IG issued the notice letter, Petitioner again requests review of the IG's February 28, 2020 determination.  The case has been docketed as C-25-745 and assigned to me.  In her hearing request, Petitioner does not mention her March 12, 2020 appeal but claims that she "never had a chance to tell [her] side of why 20 years is extremely excessive."

DISCUSSION

1. Petitioner's hearing request, filed on June 23, 2025, must be dismissed pursuant to 42 C.F.R. § 1005.2(e)(1) because it was not timely filed.

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Petitioner's current appeal must be dismissed because it is untimely.  By statute and regulation, a petitioner 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); see 42 C.F.R. § 1001.2003(a) (referring to section 1005.2 for the definition of "receipt of the notice").  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); Maiorano v. Thompson, Civil Action No. 04-2279, 2008 WL 304899 at *3 (D.N.J. Feb. 1, 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, we know that Petitioner received the IG's notice in February or March 2020, based on her initial appeal, which she filed timely.  This current appeal was filed more than five years after the IG issued the notice.  It must therefore be dismissed pursuant to 42 C.F.R. § 1005.2(e)(1).

2. The November 6, 2020 dismissal of Docket C-20-370 was legally sound, and Petitioner may not now have that determination reopened and reconsidered.

The regulations that govern these proceedings direct the Administrative Law Judge to dismiss a hearing request if the petitioner abandons the appeal.  42 C.F.R. §§ 1005.2(e)(3), 1005.14(a)(5).  Petitioner did not submit her prehearing exchange as ordered and did not respond to an order to show cause, which establishes that she had abandoned the appeal.

Further, with the November 6 dismissal was a notice that the Departmental Appeals Board has reviewed dismissals in exclusion cases.  The notice explained that an appeal to the Board must be filed within 30 days from receipt of the dismissal.  42 C.F.R. § 1005.21(a).  Thus, if Petitioner disagreed with the dismissal, her recourse was to file an appeal with the Board.  Nothing in the statute or regulations gives me continuing jurisdiction over a case that has been decided or dismissed.

Nor do the regulations give me the authority to reopen or reconsider a decision or dismissal.  Nevertheless, the Board has determined that a decision-maker has "inherent authority" to reopen and reconsider a decision, even in the absence of express authorization in its procedures.  Mark B. Kabins, M.D., DAB Ruling No. 2012-1 at 3 (Oct. 14, 2011) (citing Henry L. Gupton, DAB Ruling No. 2007-1 (Mar. 14, 2007)).  As the Board emphasized, this is not a routine step, but a means "to point out and correct any errors that make the decision clearly wrong" when a party "promptly alleges a clear error of fact or law."  Id. (citing 45 C.F.R. § 16.13).

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Petitioner's new appeal is hardly "prompt," having been filed years after her initial appeal was dismissed.  She has not suggested any clear error of law or fact.  I therefore decline to reopen that determination, which remains final and binding.

RULING

I must dismiss this appeal because it is untimely.  I decline to reopen my dismissal of Petitioner's initial appeal because Petitioner did not promptly point to any clear error of law or fact in that determination.