Darling Navidad Oki, DAB No. 3176 (2025)

DETERMINATION TO DECLINE REVIEW OF ADMINISTRATIVE LAW JUDGE DECISION

After reviewing the record to evaluate the issues presented by Darling Navidad Oki (Petitioner) in appealing the administrative law judge (ALJ) Dismissal in Darling Navidad Oki, CR6577 (2024) (Dismissal), we have determined that we need not render a separate decision. The Inspector General (I.G.) excluded Petitioner, a licensed vocational nurse, from participation in all federal health care programs under section 1128(a)(1) of the Social Security Act (Act) (42 U.S.C. § 1320a–7(a)(1)) for the mandatory minimum period of five years based on Petitioner’s misdemeanor conviction for soliciting and accepting fees for patient referrals arising from negotiation and receipt of payment in exchange for Medi-Cal beneficiary referrals for hospice services. Dismissal at 2-3. The ALJ dismissed Petitioner’s request for hearing pursuant to 42 C.F.R. § 1005.2(e)(4) on the grounds that Petitioner did not contest that section 1128(a) of the Act required the I.G. to exclude Petitioner based on her conviction, and that Petitioner’s arguments seeking forgiveness amounted to requests for equitable relief that the ALJ had no authority to grant. Id.

Before the Board, Petitioner, through counsel, argues that her misdemeanor conviction falls under the permissive exclusion provision authorizing (but not requiring) exclusions based on misdemeanor convictions (Act § 1128(b)(1)(A), 42 U.S.C. § 1320a–7(b)(1)(A)), and thus “only a permissive . . . exclusion should apply.” Request for Review (RR) at 1. In support, Petitioner explains that she “represented herself before the ALJ” and “at this point does not admit that her conviction requires exclusion” under section 1128(a)(1). Id. Petitioner did not raise this argument 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.”). “We decline review for that reason alone.” Sonny Austin Ramdeo, DAB No. 3152, at 1 (2024) (declining to consider statutory and equitable arguments not raised before the ALJ and citing relevant Board decisions).

Even if this issue were properly before the Board, Petitioner’s argument does not support that her misdemeanor conviction should fall under the permissive, rather than the

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mandatory, exclusion provisions. The Board has rejected the argument that a misdemeanor conviction should only fall under the permissive exclusion provisions. Gregory J. Salko, M.D., DAB No. 2437, at 4 (2012) (citing Lorna Fay Gardner, DAB No. 1733, at 5 (2000)), aff’d, No. 3:12cv515, 2013 WL 618779 (M.D. Pa. Feb. 19, 2013). The Board in Salko upheld the I.G.’s determination to exclude a petitioner under the mandatory exclusion provisions based on his misdemeanor conviction. Id. at 1, 4-5. The Board explained that the permissive exclusion provisions of section 1128(b) do not apply where there is a basis for a mandatory exclusion under section 1128(a). Id. at 4. The Board also observed that, when an offense falls under the mandatory exclusion statute, federal courts have “repeatedly held” that the I.G. is required to impose a mandatory exclusion even if an individual’s conduct also falls within the scope of the permissive exclusion provisions. Id. (quoting Timothy Wayne Hensley, DAB No. 2044, at 16 (2006) and citing relevant federal court decisions); Kimbrell Colburn, DAB No. 2683, at 9 (2016) (quoting Hensley at 16 and citing Salko at 4).

As the ALJ correctly found, the I.G. determined that Petitioner was convicted of a criminal offense related to the delivery of an item or service under Medicare or a state health care program, which triggers a mandatory exclusion under section 1128(a)(1). Dismissal at 3; Act § 1128(a)(1) (42 U.S.C. § 1320a-7(a)(1)) (stating that “[a]ny individual . . . that has been convicted of a criminal offense related to the delivery of an item or service under subchapter XVIII [Medicare] . . . or under any State health care program” shall be excluded from participation in federal health care programs). Thus, the I.G. had no discretion to impose an exclusion period less than five years. Act § 1128(c)(3)(B) (42 U.S.C. § 1320a-7(c)(3)(B)) (providing that, when an exclusion is validly imposed under section 1128(a)(1), with exceptions not relevant here, the minimum period of exclusion “shall be not less than five years”).

Petitioner’s remaining contentions before the Board include that she “cooperated with authorities” and “never had a prior legal issue.” RR at 1. Petitioner also submits, for the first time before the Board, three “letters of support from individuals who know [Petitioner]” as evidence of her professional “skill and dedication.” Id. at 1-2, 4, 6-7, 9.¹ As the ALJ concluded, Petitioner’s arguments regarding her character amount to requests for equitable relief that the ALJ and the Board have no authority to grant. Dismissal at 3; Letatia Norris, DAB No. 3135, at 15 (2024) (citing Yolanda Hamilton, M.D., DAB No.

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3061, at 25 (2022)) (“[T]he Board has held that ALJs and the Board have no authority to give Petitioner equitable relief.”).

Accordingly, pursuant to 42 C.F.R. § 1005.21(g), we decline review of and summarily affirm the ALJ Dismissal.

Endnote

¹ The “letters of support” attached to Petitioner’s RR are not numbered or marked as exhibits. We cite the PDF page numbers of the RR when referring to the letters. When submitting additional evidence not presented to the ALJ, a petitioner must explain why the evidence is relevant and material and whether there were reasonable grounds for not submitting the evidence to the ALJ. 42 C.F.R. § 1005.21(f) (providing that the Board may “remand the matter to the ALJ” where a party demonstrates that additional evidence “is relevant and material” and that there were “reasonable grounds” for its failure to submit the evidence to the ALJ). While each of the letters includes notary “acknowledgement” documents dated months before the date of the ALJ dismissal, Petitioner offered no explanation for failing to submit the letters to the ALJ or for how they are material to the limited issue of the legality of the five year mandatory minimum exclusion the I.G. imposed. RR at 3, 5, 8.