Shaina R. Tucker, ALJ Ruling 2025-8 (HHS CRD January 24, 2025)

RULING DISMISSING CASE

Petitioner, Shaina R. Tucker, was a home health aide, working in Chicago, Illinois.  She submitted to the state Medicaid program time sheets that claimed hours of work that she could not have provided.  She was charged with felony vendor fraud (two counts) and felony theft (two counts) and pleaded guilty to one count of felony vendor fraud.

Based on Petitioner’s conviction, the Inspector General (IG) excluded her from participating in all federal health care programs for the minimum statutory period of five years.  On October 29, 2024, more than a year after the IG sent her the notice of exclusion, Petitioner appealed.  The 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 letter dated September 29, 2023, the IG advised Petitioner Tucker that, based on her criminal conviction, the IG was excluding her from participating in all federal health care programs, as provided for under section 1128(a)(1) of the Social Security Act (Act).  IG

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Ex. 1.  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; 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 4 (emphasis added).

The IG mailed the notice to Petitioner Tucker’s correct address, as she concedes.  See IG Ex. 1; P. Br. at 2.  Petitioner also concedes that she was aware, as early as October 2, 2023, that the IG had mailed the correspondence, having viewed it using the U.S. Postal Service’s “Mail Preview.”1  P. Br. at 2; P. Exs. A and B at 2.  She also concedes that she received the physical notice in early January 2024.  P. Br. at 2.

Petitioner did not appeal within 60 days of receiving the notice.

On October 29, 2024, more than one year after the notice letter was mailed, and more than nine months after she concedes that she received it, Petitioner filed this appeal with the Civil Remedies Division.

The IG moves to dismiss Petitioner’s hearing request because it is untimely.  With her motion and memorandum in support (IG Br.), the IG submits three exhibits (IG Exs. 1-3).  Petitioner submits her own written argument (P. Br.) with two exhibits, one marked “A and B,” and the other marked “C.”  (P. Br.).  In the absence of any objections, I admit into evidence IG Exhibits 1-3 and P. Exhibits “A and B” and C.

Discussion

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

The IG may exclude an individual from federal program participation if that individual has “committed an act described in section 1128A of the Act.”  Act § 1128(b)(7); 42 C.F.R. § 1001.901(a).

By statute and regulation, the individual must request a hearing within 60 days after she receives notice that the IG has decided to exclude her from program participation.  Act

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§§ 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 definition of “receipt of the notice”).  The regulations include no good-cause exceptions for untimely filing, providing 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 (D. N.J. 2008); Boris Sachakov, M.D., DAB No. 2707 at 4 (2016); Kenneth Schrager, DAB No. 2366 at 3 (2011).

Here, Petitioner concedes that the address on the notice letter was correct but complains that her postal delivery service is unreliable.  Nevertheless, she admits that she received the notice in “early January 2024.”  P. Br. at 2.

Petitioner also blames “[m]isleading legal advice” and “severe financial hardship” for the delay in filing her appeal.  P. Br. at 3.  She asserts that her situation is “unique” and “extraordinary” and justifies “equitable tolling” of the 60-day filing deadline.  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. 2366 at 6; see Michael Bozelly Jones, M.D., CR Docket No. 23-574 (Sept. 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

Petitioner’s hearing request is dismissed pursuant to 42 C.F.R. § 1005.2(e)(1).