Rajninder K. Jutla, ALJ Ruling 2025-7 (HHS-CRD January 22, 2025)

DISMISSAL

I dismiss the hearing request filed by Petitioner, Rajninder K. Jutla, because it is untimely. 

I.    Procedural History and Background

In an August 30, 2024 notice, the Office of the Inspector General (OIG) informed Petitioner that the Inspector General (IG) of the United States Department of Health and Human Services was excluding Petitioner from participation in all federal health care programs under section 1128(a)(3) of the Social Security Act (42 U.S.C. § 1320a-7(a)(3)) for a period of 10 years.  IG Ex. 1.  The notice alleged that Petitioner was convicted of a felony offense in the United States District Court for the Western District of Washington and that the offense was “related to fraud, theft, embezzlement, breach of fiduciary responsibility, or other financial misconduct, in connection with the delivery of a health care item or service, or with respect to any act or omission in a health care program (other than Medicare and a State health care program) operated by, or financed in whole or in part, by any Federal, State or local government agency.”  IG Ex. 1 at 1.

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In the notice, the IG stated that the following two aggravating factors supported the length of exclusion being raised from the mandatory minimum five years to 10 years: 

1. Petitioner’s “scheme caused a financial loss of approximately $348,900 to TRICARE and other insurers”; and
2. “The Washington [State] Department of Health permanently revoked [Petitioner’s medical] license.” 

IG Ex. 1 at 1-2.  The notice stated that Petitioner was currently serving an exclusion and that the new exclusion period would run concurrently with the old one.  IG Ex. 1 at 1. 

OIG mailed the exclusion notice to addresses in both California and Washington State for Petitioner and, for each address, the notices were sent to:  Rajninder K Jutla A.K.A. Ranji K Jutla.  IG Ex. 1 at 1-2. 

The notice advised Petitioner that she must file a hearing request to challenge the exclusion and/or the length of the exclusion within 60 days of receiving the exclusion notice and that receipt of the notice was presumed to be five days after the date on the notice unless there was a reasonable showing to the contrary.  IG Ex. 1 at 4. 

Petitioner did not file a hearing request within 65 days of August 30, 2024. 

On November 29, 2024, Petitioner filed a “Motion to Continue Deadline for Request for Hearing” (P. Motion) with the Civil Remedies Division.  Petitioner stated the following in support of the motion: 

[Petitioner’s] request is delayed as she did not receive a letter from the OIG dated August 30th to her California home address.  Her mail was forwarded to a PO Box in Washington for the months of July to October.  It is suspected that the non-intentional misspelling of her name by the OIG inadvertently led to the UPS store personnel to not place the Notice letter in her mailbox for pickup.  Additionally, the second address the OIG may have used does not have a mailbox and would be returned to sender as has happened in the past.

[Petitioner’s] awareness of such a letter came about when she emailed the Exclusions department on November 24th, 2024 to inquire if there were any new sanctions imposed upon her after her decision to not appeal the federal matter by March 2024, keeping her guilty plea to one count of healthcare fraud

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as standing.  She was informed that this would occur by her appellate counsel so did expect it.  She was then informed that the exclusion letter had been mailed to her August 30, 2024, which took her expectedly by surprise.  She was informed that she could still file a request for hearing and the Agency would decide[] if she would be granted one. 

P. Motion at 2. 

On December 3, 2024, the Civil Remedies Division acknowledged receipt of Petitioner’s motion, advised the parties I would hold a prehearing conference on January 9, 2025, and issued my Standing Order.  Further, in a separate order dated December 3, 2024 (Dec. 3 Order), I directed the parties to file the following regarding Petitioner’s motion: 

By December 17, 2024, Petitioner must submit all evidence supporting the date that she received the exclusion notice.  Petitioner’s submission must include a signed statement made under penalty of perjury as to the facts provided in the hearing request concerning when Petitioner first received a copy of the exclusion notice and why Petitioner believes that she did not receive the notice before that time.  Petitioner’s submission must also include a copy of the email exchange with OIG, as mentioned in the hearing request.  

By January 2, 2025, OIG must respond to Petitioner’s position concerning receipt of the hearing request.

On December 17, 2024, Petitioner filed a Declaration and Evidence for Request for Hearing (P. Decl. and Evidence), which incorporated copies of Petitioner’s email exchange with OIG and a declaration under penalty of perjury.  Petitioner did not submit any other evidence.

On December 30, 2024, the IG filed a response opposing Petitioner’s motion (IG Resp.) and two exhibits, one of which is a declaration from an OIG employee (IG Ex. 2).  The IG also moved for dismissal based on the untimely hearing request.  IG Resp. at 1, 3.

On January 3, 2025, I vacated the prehearing conference scheduled for January 9, 2025, because the President of the United States directed all federal agencies to close their offices on that date.  Exec. Order 14,133, 90 Fed. Reg. 187 (Jan. 3, 2025).  I informed the parties that I would consider their submissions concerning Petitioner’s motion and that I would either reschedule the prehearing conference or dismiss Petitioner’s hearing request for untimeliness.

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Petitioner had 10 days to respond to the IG’s motion to dismiss; however, Petitioner did not file a response.  See 42 C.F.R. § 1005.13(c); Standing Order ¶ 15.

II.    Discussion

An individual or entity convicted of certain criminal offenses must be excluded from participation in all Federal health care programs for a minimum of five years.  42 U.S.C. § 1320a-7(a), (c)(3)(B).  If the IG determines that a conviction constitutes a proper basis for exclusion, the IG must send notice of the exclusion to the affected individual or entity.  42 U.S.C. § 1320a-7(c); 42 C.F.R. § 1001.2002(a).  The IG must give the excluded individual or entity reasonable notice of the opportunity for a hearing to contest the exclusion.  42 U.S.C. §§ 405(b)(1), 1320a-7(f)(1); 42 C.F.R. § 1001.2002(c)(6). 

Petitioner wants to challenge the basis and length of the exclusion, primarily alleging that she did not commit the crime to which she pleaded guilty.  P. Decl. and Evidence at 5-7.  In support of her argument that she did not receive the exclusion notice until she contacted the OIG in November 2024, Petitioner provided copies of the email exchange she had with OIG. 

On or about November 25, 2024, Petitioner emailed OIG and requested an “update on any exclusions that I may have received and if there are appeals or objections I can do right away.  I have changed addresses a couple of times so not sure if the Agency is trying to contact me after my fraud case concluded.”  P. Decl. and Evidence at 2.  On November 26, 2024, an OIG official responded that the IG excluded Petitioner twice:  1) effective on October 20, 2020, based on Petitioner’s loss of her Oregon medical license; and 2) effective on September 19, 2024.  The OIG official attached copies of the exclusion notices to the email.  P. Decl. and Evidence at 2.  Petitioner replied that she wanted to challenge the more recent exclusion.  P. Decl. and Evidence at 2.  The OIG official responded that Petitioner had 60 days from the date on the exclusion notice and that OIG considers exclusion notices to be received if the notices are not returned to OIG by the post office.  P. Decl. and Evidence at 3-4.  The OIG official also stated that Petitioner could file an appeal and state that she did not receive the exclusion notice.  P. Decl. and Evidence at 4. 

Petitioner declared, under penalty of perjury, the following: 

During the time the [exclusion notice] was sent, I was studying for the first-year law school exam, I passed, homeschooling my son, and was driving 3 dogs, 4 kids under 7 years old, back and forth to California (1st week of October with a return to Washington on November 14, 2024) as a way to allow my children to spend time with my mother and yet still obey any probation rules from my guilty plea of the

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federal matter.  With all that was going on last Summer, I regret that looking for a letter that may have come from the OIG was not on my thoughts as it should have been.

I did not receive a letter from the OIG dated August 30th to the California home address as reported.  The mail was to be forwarded to a PO Box in Washington for the months of July to October as my children and I were out of California.  It is suspected that the non-intentional misspelling of my name by the OIG inadvertently led the UPS store personnel to not place the Notice letter in my mailbox for pickup in the month of September when it would have arrived from California.  Additionally, the second address the OIG (Ridgefield, WA is cc’ed) may have used does not have a mailbox and any mail would be returned to sender as has happened in the past or forwarded to my PO Box. 

My awareness of such a letter’s deadline for hearing request came about when I emailed the Exclusions department on November 24th, 2024 to inquire if there were any new sanctions imposed upon me after my decision to not appeal the federal matter by March 2024, keeping my guilty plea to one count of healthcare fraud as standing.  I was informed that this would occur by my counsel around six to eight months later, so did expect it.  I was then informed that the exclusion letter had been mailed to me August 30, 2024, which took me expectedly by surprise.  I was informed that I could still file a request for hearing and the Agency would decide[] if I would be granted one.

P. Decl. and Evidence at 7-8.

The IG asserts that Petitioner’s hearing request was due November 4, 2024, i.e., 65 days after the August 30, 2024 mailing of the exclusion notice.  IG Resp. at 2.  In a declaration, made under penalty of perjury, an OIG official stated that:  the date on the exclusion notice, i.e., August 30, 2024, is the date it was placed in the mail; the exclusion notice was mailed to the California and Washington State addresses appearing on the notice; and neither of the exclusion notices were returned to OIG.  IG Ex. 2 ¶¶ 3, 5.

The IG argues that Petitioner must make a reasonable showing to rebut the presumption of receipt of the exclusion notice.  IG Resp. at 2.  The IG points out that Petitioner acknowledged that both addresses where the exclusion notice was sent are ones where she “maintains a presence.”  IG Resp. at 2.  Further, the IG questions Petitioner’s theory

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that a slight misspelling of Petitioner’s alias, i.e., the name on the address preceded by “A.K.A.,” would impede delivery of the notices given that Petitioner’s legal name was spelled correctly.  IG Resp. at 2-3.  Finally, the IG asserts that OIG never received either notice back from the postal services.  IG Resp. at 3.

A request for hearing to dispute an exclusion “must be filed within sixty days after notice of such decision is received by the individual making such request.”  42 U.S.C. §§ 405(b)(1), 1320a-7(f)(1); see 42 C.F.R. §§ 1001.2007(b), 1005.2(c).  Further, “the date of receipt of the notice letter [is] presumed to be 5 days after the date of such notice unless there is a reasonable showing to the contrary.”  42 C.F.R. § 1005.2(c).

The regulations do not allow an administrative law judge to extend the 60-day filing deadline for good cause (see 57 Fed. Reg. 3298, 3323 (Jan. 29, 1992)), but only allow an excluded individual to make a reasonable showing to rebut the presumption that the exclusion notice was received more than five days after the date of the notice.  See Kenneth Schrager, DAB No. 2366 at 4 (2011).  In response to public comments on this subject, the Secretary of Health and Human Services expressly declined to permit a good cause exception to the timeliness requirement for hearing requests.  See 57 Fed. Reg. at 3,323.

In this case, Petitioner admits that the California address to which OIG mailed the exclusion notice is a “California home address.”  P. Decl. and Evidence at 7; P. Motion at 2.  Petitioner further indicates that the Washington State address that OIG also mailed the exclusion notice to is connected with Petitioner.  P. Decl. and Evidence at 7-8.  OIG did not receive either of the exclusion notices back from the post office.  IG Ex. 2 ¶ 5(b); see also P. Decl. and Evidence at 4.  Therefore, there is sufficient evidence to apply the five-day presumption of receipt.

Petitioner provides an unclear explanation as to why she thinks that she did not receive the exclusion notice.  Petitioner was away from home for several months during the time that the exclusion notices were sent, and mail to Petitioner’s “California home address” was to be forwarded to a post office box in Washington State.  Petitioner theorizes that a minor misspelling of her alias caused the UPS store (presumably where Petitioner’s mail was to be forwarded) not to place the notice in her mailbox.  P. Decl. and Evidence at 7.  Petitioner also theorizes that the notice sent to the Washington State address could have been returned to OIG or forwarded to Petitioner’s post office box because that address “does not have a mailbox.”  P. Decl. and Evidence at 7-8.

I cannot accept Petitioner’s explanations.  Other than her written declaration, Petitioner did not provide documentary evidence to support her claim that she was away from home, the post office was to forward her mail, or that the UPS store would not have placed mail in her mailbox if there was a minor misspelling for her alias on the envelope.  In short, while Petitioner provided a declaration as to the alleged events that may have

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resulted in her not receiving the exclusion notice, there is no corroborating evidence to support those events.  Kenneth Schrager, DAB No. 2366 at 4-5 (2011) (an affidavit stating non-receipt of an exclusion notice cannot rebut the presumption of receipt when there is insufficient explanation and corroborating evidence).

When a hearing request is filed untimely, I must dismiss the hearing request.  42 C.F.R. § 1005.2(e)(1).  I have no jurisdiction to consider cases that have not been timely appealed.  See Ishtiaq A. Malik, M.D., DAB No. 2962 at 9 (2019).

III.  Order

I dismiss Petitioner’s hearing request for untimeliness.