Drew Toriano Armstead, DAB No. 3126 (2024)

DETERMINATION TO DECLINE REVIEW OF ADMINISTRATIVE LAW JUDGE DECISION

After reviewing the record to evaluate the issues presented by Drew Toriano Armstead (Petitioner) in appealing the administrative law judge decision in Drew Toriano Armstead, DAB CR6382 (2023) (ALJ Decision), we have determined that we need not render a separate decision.  The ALJ determined that:  (i) the Inspector General (I.G.) had a lawful basis to exclude Petitioner from participation in all federal health care programs under section 1128(a)(1) of the Social Security Act (Act) for the mandatory minimum period of five years based on Petitioner’s conviction of a criminal offense related to the delivery of services under the Louisiana Medicaid program, and (ii) the effective date of Petitioner’s exclusion is April 20, 2023.  ALJ Decision at 1, 4, 7-9.  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.  Id. at 3, 9.

On appeal, Petitioner does not identify any legal or factual error by the ALJ.  Rather, Petitioner requests that we “amend” the effective date of Petitioner’s exclusion from April 20, 2023, to October 20, 2022, because the “record reflects” that Petitioner was “suspended from all state and federal Medicare, Medicaid programs effective October 20, 2022.”  P. Obj. to ALJ Decision at 1-2.  Petitioner argues that he “has not participated in the aforementioned programs and therefore any disqualification/exclusion for five years should run from October 20, 2022, until satisfied.”  Id. at 1.  The record does not reflect that Petitioner was “suspended” from any healthcare program effective October 20, 2022.  No such evidence (or argument) was presented to the ALJ.  Indeed, Petitioner failed to raise this issue before the ALJ and, therefore, it is not properly before the Board.  See 42 C.F.R. § 1005.21(e) (“The [Board] will not consider . . . any issue in the briefs that could have been raised before the ALJ but was not.”).

Moreover, even if the issue were properly before the Board, and even if Petitioner had presented evidence of a prior suspension, the Board has no authority to provide the relief Petitioner seeks.  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.

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§ 1001.2002(b) (exclusion takes effect 20 days from the date of the exclusion notice).  Here, the I.G. issued the exclusion notice on March 31, 2023.  I.G. Ex. 1.  Petitioner’s exclusion, therefore, became effective on April 20, 2023.  Neither ALJs nor the Board have authority to amend the start date of an exclusion to a date earlier than the date set by regulation.  See Shaikh M. Hasan, M.D., DAB No. 2648, at 7-9 (2015) (rejecting petitioner’s argument that the effective date of the I.G.’s exclusion should be adjusted to coincide with an earlier state-imposed Medicaid exclusion), aff’d, Hasan v. Sec’y of Health & Human Servs., No. 1:15-CV-04687 (E.D.N.Y. July 10, 2017); Kailash C. Singhvi, M.D., DAB No. 2138, at 3-5 (2007) (rejecting petitioner’s equitable argument that the effective date of the I.G.’s exclusion should be adjusted based on when his medical license was surrendered and his participation in Medicaid was terminated), aff’d sub nom., Singhvi v. Inspector Gen., Dep’t of Health & Hum. Servs., No. CV-08-0659 (E.D.N.Y. Sept. 21, 2009); see also Anthony Joseph Moschetto, D.O., DAB No. 3030, at 13 (2021) (“[T]he effective date of an exclusion is determined by regulation and may not be adjusted at the discretion of an ALJ or the Board.”); Rita Patel, DAB No. 2884, at 7 (2018) (“[I]n exclusion matters, the applicable statute and regulations do not give an ALJ, and by extension the Board, any authority to adjust the beginning date of an exclusion.”).  Accordingly, pursuant to 42 C.F.R. § 1005.21(g), we decline review of and summarily affirm the ALJ Decision.