Vasan Deshikachar, DAB No. 3085 (2023)

DETERMINATION TO DECLINE REVIEW OF ADMINISTRATIVE LAW JUDGE DISMISSAL

After reviewing the record to evaluate the issues presented by Vasan Deshikachar (Petitioner) in this appeal of the administrative law judge dismissal in Vasan Haluthore Deshikachar, DAB CR6175 (2022) (ALJ Dismissal), we have determined that we need not render a separate decision.  The Inspector General (I.G.) excluded Petitioner from participation in all federal health care programs under section 1128(a)(4) of the Social Security Act (Act) for the mandatory minimum period of five years based on Petitioner’s felony conviction related to the unlawful distribution of controlled substances.  ALJ Dismissal at 3.  Petitioner requested a hearing challenging only the effective date of the exclusion.  Id. at 1, 5.  The ALJ dismissed Petitioner’s hearing request, citing 42 C.F.R. § 1005.2(e)(4), and explaining that ALJs have no authority to change the effective date of exclusion.  Id. at 5 (“I am required to dismiss a hearing request when that ‘hearing request fails to raise any issue which may properly be addressed in a hearing.’”).  The ALJ further explained that when the length of a mandatory exclusion does not exceed five years, ALJs may only review whether there is a legal basis for the exclusion (an issue Petitioner did not contest).  Id. at 4-5. 

Before the Board, Petitioner asks that we review the ALJ Dismissal “as to [the] purported lack of jurisdiction to consider the effective date of [Petitioner’s] exclusion,” arguing that “Courts have the inherent jurisdiction” to consider the effective date if it is “unjust, inequitable and/or absurd.”  Notice of Appeal at 1; see also Reply at 1-2.¹  The Board is not a “Court,” and in any event, the effective date of an exclusion is determined by regulation.  Act § 1128(c)(1) (“An exclusion under this section . . . shall be effective at such time and upon such reasonable notice . . . as may be specified in regulations . . . .”); 42 C.F.R. § 1001.2002(b) (exclusion takes effect 20 days from the date of the exclusion

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notice).  Moreover, neither ALJs nor the Board have authority to review the timing of the I.G.’s determination to impose an exclusion or to change the start date of an exclusion to a date earlier than the date set by regulation.  See Kami L. Purvis, DAB No. 2990, at 6 (2020) (“Neither the ALJ nor the Board has the authority to review the timing of the I.G.’s imposition of an exclusion, and nothing in the statute or regulations precludes the I.G. from imposing the exclusion when it did.”); Shaikh M. Hasan, M.D., DAB No. 2648, at 9 (2015) (“We find that the ALJ correctly determined that she had no authority to review the timing of the I.G.’s determination to impose an exclusion or to change the starting date of the exclusion.”), aff’d, Hasan v. Sec’y of Health & Human Servs., No. 1:15-CV-04687 (E.D.N.Y. July 12, 2017); Rita Patel, DAB No. 2884, at 6-7 (2018) (holding that the Board has no authority to adjust the starting date of an exclusion on equitable grounds).  Accordingly, pursuant to 42 C.F.R. § 1005.21(g), we decline review of and summarily affirm the ALJ Dismissal.   

Endnote

¹  The record before the Board includes Petitioner’s written submission filed on November 26, 2022, which we have considered as Petitioner’s reply absent objection from the I.G.  In the reply, Petitioner advances an “absurdity doctrine” argument without discussing the source of this doctrine and without citing authority explaining how or why it would apply here.  We further note Petitioner’s notice of appeal included a copy of the request for hearing that was filed before the ALJ, but that submission does not specify any exceptions to the ALJ Dismissal.  See 42 C.F.R. § 1005.21(c) (requiring notice of appeal to include a written brief specifying exceptions to the ALJ’s initial decision and the reasons supporting the exceptions).