Tiffany Folkner, DAB No. 3173 (2025)

DETERMINATION TO DECLINE REVIEW OF ADMINISTRATIVE LAW JUDGE DECISION

Petitioner Tiffany Folkner seeks Board review of the January 17, 2025 decision of an administrative law judge (ALJ) in Tiffany Folkner, Civil Remedies Division Docket No. C-25-55, Decision No. CR6609 (ALJ Decision).  The ALJ upheld the Inspector General (I.G.’s) September 30, 2024 decision to exclude Petitioner from participation in Medicare, Medicaid, and all other federal health care programs under section 1128(a)(1) of the Social Security Act (Act) (42 U.S.C. § 1320a-7(a)(1)) based on Petitioner’s felony conviction, in a Missouri court, of Medicaid fraud.  The ALJ determined that the exclusion, which took effect on October 20, 2024 pursuant to 42 C.F.R. § 1001.2002(b), must remain in effect for five years, as required by section 1128(c)(3)(B) of the Act (42 U.S.C. § 1320a-7(c)(3)(B)).

Petitioner’s Notice of Appeal is an undated two-paragraph statement identical to her request for a hearing, which was filed on October 17, 2024.  Petitioner evidently submitted her request for hearing as her Notice of Appeal.  The Notice of Appeal does not comply with 42 C.F.R. § 1005.21(c), which requires that a notice of appeal be “accompanied by a written brief specifying exceptions to the initial decision [i.e., the ALJ’s decision] and reasons supporting the exceptions.”  Even were we to consider the statement itself a “written brief” (we do not), importantly, the statement cannot be considered as “specifying exceptions to” the ALJ’s January 17, 2025 decision because Petitioner evidently prepared the statement on or before October 17, 2024.  The failure to comply with section 1005.21(c) itself is a basis for declining review of the ALJ Decision under 42 C.F.R. § 1005.21(g).  See Brendon Cox, DAB No. 3130, at 1 (2024) (declining review of ALJ’s decision, noting that the notice of appeal was “substantively identical to” the request for hearing and “raise[d] no new or unaddressed factual or legal issues”).

Even were we to consider Petitioner’s submission of her statement (request for hearing) to the Board as asserting that, in Petitioner’s view, the ALJ did not adequately address her arguments or resolve them correctly, we would conclude that the ALJ appropriately addressed all issues that were before the ALJ and issued a legally and factually sound decision upholding a lawful exclusion.  Petitioner asks that her “name be removed from”

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the I.G.’s exclusion list because she “was not convicted of a crime”; “[n]o sentence of any kind was imposed and under [Missouri] law [she is] not a convicted felon”; and no “conviction [was] entered against” her.  Notice of Appeal at 1.  The ALJ appropriately addressed Petitioner’s arguments that she was not “convicted” for purposes of the exclusion.  See ALJ Decision at 4-5.  Of note, as the ALJ explained, for purposes of an exclusion under section 1128(a)(1), a “conviction” is established when the court, as in Petitioner’s case, accepts a guilty plea.  See id.; Act § 1128(i)(3) (defining “[c]onvicted” in part to mean “when a plea of guilty . . . by the individual . . . has been accepted by a . . . State . . . court”) (cited in ALJ Decision at 5).  The record shows that Petitioner pleaded guilty, and the court accepted her plea.  See ALJ Decision at 5.  Thus, the ALJ correctly concluded that Petitioner was “convicted” of Medicaid fraud for purposes of exclusion under section 1128(a)(1) of the Act.

Petitioner states that she has been performing well in her current job and that the I.G. exclusion “will cause an unreasonable financial hardship for [her] family.”  Notice of Appeal at 1.  The ALJ correctly determined that the I.G. lawfully excluded Petitioner under section 1128(a)(1) of the Act.  See ALJ Decision at 1, 3 (finding of fact and conclusion of law no. 1).  The ALJ also correctly stated that an ALJ cannot refuse to apply the exclusion authorities and has no discretionary authority to shorten the exclusion period because, in accordance with section 1128(c)(3)(B) of the Act, a section 1128(a)(1) exclusion must remain in effect for a minimum of five years.  See id. at 5-6.  The Board, too, “must follow” “the exclusion law and regulations.”  Yolanda Hamilton, M.D., DAB No. 3061, at 28 (2022).  The Board, moreover, cannot grant equitable relief.  See id. at 25 (and cited Board decisions).  We therefore cannot overturn the lawful exclusion or reduce its duration in consideration of the financial hardship the exclusion would or could pose on Petitioner and her family.

The ALJ’s findings are supported by substantial evidence in the record, and we find no legal error in the ALJ Decision.  42 C.F.R. § 1005.21(h).  We therefore decline review of and summarily affirm the ALJ Decision.  Id. § 1005.21(g).