Letatia Norris, Ruling on Request for Reconsideration of Decision No. 3135, Ruling No. 2024-3 (2024)

RULING DENYING REQUEST FOR RECONSIDERATION

Petitioner Letatia Norris, appearing pro se, asks the Board to reconsider its decision in the case of Letatia Norris, DAB No. 3135 (2024).  The Board affirmed a decision by an administrative law judge (ALJ) upholding Petitioner’s exclusion by the Inspector General (I.G.) from participation in Medicare, Medicaid, and all federal health care programs for five years.  Letatia Norris, DAB CR6410 (2023) (ALJ Decision).  The I.G. excluded Petitioner under section 1128(a)(1) of the Social Security Act (Act)¹ based on her conviction for False Personation in the Nineteenth Judicial District Court of Louisiana.  Petitioner disagrees with the effective date of the mandatory exclusion and requests an earlier start date.

The Board may reopen and reconsider a decision for the purpose of correcting a clear error of law or fact.  As discussed below, Petitioner’s request for reconsideration does not identify any such error.  Accordingly, we deny Petitioner’s request. 

Background

Under section 1128(a)(1) of the Act and 42 C.F.R. § 1001.101(a), the I.G. must exclude an individual from participating in all federal health care programs if that individual has been convicted of a criminal offense related to the delivery of an item or service under Medicare or under any state health care program.  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 notice).

Page 2

In DAB No. 3135, the Board concluded that the ALJ’s determination that the I.G. had a basis to exclude Petitioner under section 1128(a)(1) of the Act was supported by substantial evidence and free of legal error.  DAB No. 3135, at 9.  Petitioner admitted she was convicted of a crime (False Personation), and the Board affirmed the ALJ’s finding that Petitioner was “convicted” within the meaning of the Act.  Id. (citing RR at 1).  The Board further determined that substantial evidence in the record supported the ALJ’s conclusion that there was a nexus between Petitioner’s offense of False Personation and the delivery of services under Louisiana Medicaid.  Id. at 10-11. 

Finally, the Board concluded that it had no authority to reduce the length of Petitioner’s exclusion or grant other equitable relief based on Petitioner’s assertions regarding her cooperation with prosecutors in a different criminal case and the fact that Petitioner’s criminal case in Louisiana lasted over two years.  Id. at 14-15 (citing Yolanda Hamilton, M.D., DAB No. 3061, at 25 (2022)).  The Board found that the ALJ correctly concluded that because Petitioner’s exclusion was valid, Petitioner must be excluded for no less than the statutory minimum five years.  Id. (citing ALJ Decision at 7-8).   

Petitioner’s Request and I.G.’s Response

In the request for reconsideration, Petitioner does not identify any clear error of law or fact in DAB No. 3135.  Instead, Petitioner disagrees with the effective date of the mandatory exclusion, September 22, 2022.²  Petitioner asserts that this date is “unsatisfactory” because it is “delayed for over a year from the conviction.”  Request for Reconsideration at 1.  Petitioner explains that she was initially charged on April 25, 2019, reached a plea deal on October 27, 2021, and all charges were dismissed on March 3, 2022.  Id.  She argues the case began in 2019 and “five years have passed already.”  Id.  Petitioner also asserts the effective date is “unjust and unfair.”  Id. 

The I.G. filed a response opposing Petitioner’s request for reconsideration.  The I.G. points out that 42 C.F.R. Part 1005 does not expressly authorize the Board to reopen and reconsider its decisions; however, the Board has the inherent authority to reconsider a decision if there is a “prompt allegation” of clear legal or factual error.  I.G. Response at 1.  The I.G. states that Petitioner does not argue there is a clear error of fact or law but instead, seeks an adjustment of the exclusion start date.  Id. at 1-2.  The I.G. argues that the Board does not have authority to provide Petitioner the relief she seeks as the Board cannot review the timing of the I.G.’s determination to impose an exclusion or change the start date of an exclusion to a date earlier than the date set by regulation.  Id. at 2.

Page 3

Analysis

The regulations in 42 C.F.R. Part 1005 governing appeals of exclusions do not expressly authorize the Board to reopen and reconsider a decision to exclude an individual from federal health care programs.  Charles Brian Griffin, Ruling on Request for Reconsideration, DAB Ruling No. 2017-3, at 2 (May 10, 2017); Mark B. Kabins, M.D., Ruling on Motion for Reconsideration, DAB Ruling No. 2012-1, at 2-3 (Oct. 14, 2011).³  Nonetheless, “[t]he Board has recognized . . . that it has inherent authority to reopen and reconsider such a decision under the general principle that an adjudicator may act to correct an error in a decision.”  Rosa Velia Serrano, Ruling on Petitioner’s Motion to Reconsider and Supplement the Record, DAB Ruling No. 2019-2 at 5 (April 25, 2019) (citing Griffin at 2; Kabins at 2-3).  However, “reopening a Board decision ‘is not a routine step’ in the Board’s adjudication process.”  Id. (citing Kabins at 3).  “Rather, ‘it is the means for the parties and the Board to point out and correct any errors that make the decision clearly wrong.’”  Id.  The Board emphasized that “[a] ‘motion for reconsideration is not a vehicle for an aggrieved party to repeat arguments already made and rejected.’”  Id.

Applying the standards for reconsideration in this case, we conclude that Petitioner’s arguments do not establish any clear legal or factual error in DAB No. 3135.  Rather, Petitioner again requests relief based on the length of time it took for Petitioner’s criminal case to be resolved as well as the passage of time between the conviction and the exclusion.  The Board previously considered and rejected those arguments because they were, in part, based in equity.  DAB No. 3135, at 14-15.  Petitioner now argues that the exclusion is unfair and unjust, which is also a request for relief on equitable grounds, and the Board has no authority to grant equitable relief.  Hamilton at 25.

The I.G.’s position that the Board does not have the authority to adjust the exclusion start date is in accord with a number of Board decisions.  Neither ALJs nor the Board have the 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).  Additionally, Petitioner’s equitable arguments relating to the effective date of the exclusion do not authorize ALJs or the Board to ignore the regulation or to alter the

Page 4

effective date of an exclusion.  Asim A. Hameedi, M.D., DAB No. 3087, at 22 (2023) (citing 42 C.F.R. § 1001.2002(b)).

Conclusion

For the reasons explained above, we deny Petitioner’s request for reconsideration.

Endnotes

¹  Section 1128 of the Act is codified at 42 U.S.C. § 1320a-7.  The current version of the Act can be found at https://www.ssa.gov/OP_Home/ssact/ssact-toc.htm.  Each section of the Act on that website contains a reference to the corresponding United States Code chapter and section.  Cross-reference tables for the Act and the United States Code can be found at https://www.ssa.gov/OP_Home/comp2/G-APP-H.html.

²  The Notice of Exclusion was dated August 31, 2022.  In accordance with the regulation at 42 C.F.R.§ 1001.2002(b), the effective date would be September 20, 2022.

³  Available at https://www.hhs.gov/sites/default/files/board-rul-2017-3.pdf and https://www.hhs.gov/sites/default/files/static/dab/decisions/board-decisions/2011/rul2012-1.pdf.