Shaina R. Tucker, DAB No. 3183 (2025)

DETERMINATION TO DECLINE REVIEW OF ADMINISTRATIVE LAW JUDGE DECISION

After reviewing the record to evaluate the issues presented by Petitioner in her appeal of the administrative law judge (ALJ) Ruling Dismissing Case (Dismissal) in Shaina R. Tucker, CRD Docket No. C-25-93, Ruling No. 2025-8 (Jan. 24, 2025), we have determined that we need not render a separate decision.  The ALJ dismissed Petitioner’s hearing request under 42 C.F.R. § 1005.2(e)(1) because it was not timely filed and Petitioner failed to make a “reasonable showing” to rebut the presumption of receipt of the September 29, 2023 Inspector General (I.G.) exclusion notice five days after the date of the notice.  Dismissal at 2-3; cf. Kenneth Schrager, DAB No. 2366, at 4-5 (2011) (holding petitioner’s mere statement denying receipt of exclusion notice, without “sufficient explanation and corroborating evidence,” is insufficient to rebut presumption of receipt under 42 C.F.R. § 1005.2(c)).

On appeal, Petitioner raises no exceptions that were not sufficiently addressed by the ALJ or by prior Board decisions.  Petitioner states that she did not receive the I.G.’s exclusion notice until January 2024 due to mail receipt issues, despite filing “multiple complaints” with the U.S. Postal Service and contacting the Illinois Office of the Inspector General, the Illinois State Police, and the National Practitioner Data Bank (NPDB)¹ to “clarify” her exclusion status.²  P. Br. at 2-3; P. Mot. in Resp. to I.G.’s Opp’n (P. Mot.) at 3.³  Petitioner presented these arguments before the ALJ, who rejected them in part due to several concessions by Petitioner, specifically:  the I.G. mailed the notice to her “correct address”; she was aware as early as October 2, 2023, that the I.G. had mailed

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correspondence, having viewed it using the U.S. Postal Service’s “Mail Preview” app; and “she received the physical notice in early January 2024.”  Dismissal at 2.  Nevertheless, as the ALJ also found, Petitioner did not file her hearing request until October 29, 2024, over one year after the October 4, 2023 presumed receipt date and nine months after Petitioner’s acknowledged January 2024 receipt date.  Id. at 2-3.  Petitioner also reiterates her argument that the principle of equitable tolling should apply due to the “extraordinary obstacles” she encountered in filing her request, the “ineffective counsel” she received, and the “significant personal and professional hardship” caused by her “indefinite” exclusion (relying on information from the NPDB).  P. Br. at 4-6; P. Mot. at 3.  While Petitioner provides case law citations that purportedly support her request for equitable tolling, she presents no evidence that sufficiently rebuts the presumption of receipt.  See P. Br. at 4, 6; P. Mot. at 3.  As the ALJ correctly determined, the “regulations do not permit an ALJ or the Board to excuse a petitioner’s failure to meet the regulatory filing requirements based on equitable grounds.”  Sonny Austin Ramdeo, DAB No. 3152, at 2 (2024) (quoting Schrager at 6); see also Boris Sachakov, M.D., DAB No. 2707, at 4 (2016) (holding that 42 C.F.R. § 1005.2(e)(1) requires dismissal of an untimely hearing request); Gary Grossman, DAB No. 2267, at 5 (2009) (“[T]he ALJ was required to dismiss Petitioner’s hearing request if it was not timely filed.”).

Before the Board, Petitioner again asserts that the NPDB lists her as “excluded indefinitely[,]” amounting to a “functional extension” of her exclusion, adding that this was “imposed without adequate notice” in “violation of due process principles[.]”  P. Br. at 2-5; P. Mot. at 3.  Petitioner asserts that the “functional extension” amounts to a “disproportionate and unjust” punitive measure that “prevents [her] from obtaining jobs outside of healthcare.”  P. Br. at 4-5; P. Mot. at 3-4; P. Ex. D.⁴  Petitioner also argues that the I.G. “delayed the effective date of [her] exclusion” and that the exclusion length should be lessened due to her not holding a medical license.  P. Mot. at 1-2.  Petitioner failed to raise these specific arguments before the ALJ; thus, these issues are 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.”); see also Ramdeo at 1 (declining review for a petitioner’s failure to raise statutory and equitable arguments before the ALJ “for that reason alone”).

Even if these arguments were properly before the Board, we find them unavailing.  As the ALJ found, Petitioner was given official notice of her exclusion in the I.G.’s September 29, 2023 letter.  Dismissal at 1-2; I.G. Ex. 1, at 1.  The letter stated that Petitioner was being excluded under section 1128(a)(1) of the Social Security Act (Act)

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for the minimum statutory period of 5 years, effective October 19, 2023, and explained Petitioner’s appeal rights.  I.G. Ex. 1, at 1, 4.  There is no evidence that the I.G. issued any subsequent official notice changing the terms of Petitioner’s exclusion.  Id.; I.G. Br. at 10-11; see also I.G. Mot. to Dismiss at 2.  Petitioner’s argument that the NPDB report prevents her from obtaining employment amounts to a request for equitable relief, which the Board has no authority to grant.  Letatia Norris, DAB No. 3135, at 15 (2024) (citing Yolanda Hamilton, M.D., DAB No. 3061, at 25 (2022)) (“[T]he Board has held that ALJs and the Board have no authority to give Petitioner equitable relief.”).  Regarding Petitioner’s request for a lesser exclusion period, section 1128(c)(3)(B) of the Act provides 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.”  Act § 1128(c)(3)(B); 42 U.S.C. § 1320a-7(c)(3)(B); see also 42 C.F.R. § 1001.2007(a)(1)-(2) (providing that where, as here, the exclusion is mandatory and is imposed for the minimum five-year period, the excluded individual may not challenge the length of the exclusion as unreasonable).

Pursuant to 42 C.F.R. § 1005.21(g), we therefore decline review of and summarily affirm the ALJ’s Dismissal.

Endnotes

¹ The Secretary of Health and Human Services was authorized by Congress to establish the NPDB “to collect and release certain information relating to the professional competence and conduct of physicians, dentists, and other health care practitioners.”  45 C.F.R. Part 60.

² We note that, before the ALJ, Petitioner indicated that she contacted the “Illinois Department of Health and Human Services” on December 6, 2023, and spoke with a representative who “informed” Petitioner that “no concerns were on file.”  P. Resp. to I.G. Mot. to Dismiss at 2.

³ Petitioner’s filings before the Board, along with several of her filings before the ALJ, do not contain page numbers.  For clarity, we cite the PDF page numbers of each document that does not contain page numbers.

⁴ In support, Petitioner submits, for the first time before the Board, a background check and “[r]ejection letters” from employers citing the “NPDB/Global Watchlist exclusion.”  See P. Mot. at 4; P. Ex. D.  Petitioner explains that these letters are now relevant to support her “equitable tolling relief” request.  P. Mot. at 4.  However, as noted above, Petitioner had the opportunity to raise this issue before the ALJ.  See 42 C.F.R. § 1005.21(f) (providing that a petitioner must explain why evidence submitted for the first time before the Board is relevant and material and whether there were reasonable grounds for not submitting the evidence to the ALJ).