Nida M. Alshaikh, DAB No. 3200 (2025)

FINAL DECISION ON REVIEW OF ADMINISTRATIVE LAW JUDGE DISMISSAL

Petitioner Nida M. Alshaikh appeals an Administrative Law Judge (ALJ)’s dismissal of Petitioner’s hearing request.  Nida M. Alshaikh, ALJ Ruling No. 2025-12, (April 1, 2025) (Dismissal).  The ALJ dismissed for untimeliness Petitioner’s request for an ALJ hearing on the Inspector General (I.G.)’s exclusion of Petitioner from participation in Medicare, Medicaid, and all federal health care programs under section 1128(a)(1) of the Social Security Act (Act) for 10 years.  For reasons explained below, we affirm the Dismissal.

Legal Background

The I.G., acting on behalf of the Secretary for Health and Human Services, “shall exclude . . . from participation in any Federal health care program . . . [a]ny individual . . . that 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.”  Act § 1128(a)(1); see 42 C.F.R. § 1001.101(a) (implementing regulation).1  The I.G. must impose such exclusions for a period of at least five years and may impose a longer period based on consideration of aggravating and mitigating factors.  Act § 1128(c)(3)(B); 42 C.F.R. § 1001.102(b), (c).

The I.G. must send written notice of the exclusion imposed under section 1128(a)(1) of the Act to the individual or entity being excluded.  42 C.F.R. § 1001.2002(a).  The exclusion takes effect twenty days from the date of the notice.  Id. § 1001.2002(b).

The excluded individual may request a hearing before an ALJ on whether the basis for the imposition of the sanction exists and whether the length of exclusion is unreasonable.  Act § 1128(f)(1); 42 C.F.R. §§ 1001.2007(a)(1), 1005.2(a).  The excluded individual “has 60 days from the receipt of notice of exclusion . . . to file a request for such a hearing.”  42 C.F.R. § 1001.2007(b); see also id. § 1005.2(c) (“The request for a hearing will be made in writing” and “must be filed within 60 days after the notice. . . .”).  “[T]he date of receipt of the notice letter will be presumed to be 5 days after the date of such notice

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unless there is a reasonable showing to the contrary.”  Id. § 1005.2(c).  “The ALJ will dismiss a hearing request” if it “is not filed in a timely manner.”  Id. § 1005.2(e)(1).

Petitioner’s Exclusion by the I.G.

On January 24, 2019, Petitioner pled guilty in Michigan state court to two counts of Medicaid fraud.  Dismissal at 1; Affidavit of Nida M. Alshaikh (P. Aff.) at 1, ¶ 7.  The court sentenced Petitioner to two years of probation and quarterly reporting to the Michigan Board of Dentistry, and payment of over $200,000 in restitution.2  Id. at 2, ¶ 9.

In a letter dated December 31, 2019 (Exclusion Notice), the I.G. notified Petitioner that she was “being excluded from participation in any capacity in the Medicare, Medicaid, and all Federal health care programs as defined in [the Act] for a minimum period of 10 years.”  Exclusion Notice at 1 (emphasis omitted).  The letter stated Petitioner’s exclusion period exceeded the five-year minimum due to evidence of three aggravating factors concerning the size of the government’s financial loss, the duration of Petitioner’s criminal acts, and the suspension of her state license.  Id. at 1-2; Dismissal at 2; see 42 C.F.R. § 1001.102(c)(1), (2), (9).  Included was a page of instructions on “How to Appeal Your Exclusion.”  Exclusion Notice at 4.  The instructions explained that a “request for hearing must be made in writing within 60 days of receiving” the Exclusion Notice, and the date of receipt “will be presumed to be five (5) days after the date of such notice unless there is a reasonable showing to the contrary.”  Id.

Request for Hearing and ALJ Proceedings

On December 11, 2024, Petitioner, through counsel, filed a request for an ALJ hearing and a three-page brief in letter format.  Request for Hearing (RFH); P. Br. to ALJ.  The I.G. filed a Motion to Dismiss (MTD) Petitioner’s hearing request as untimely because the Exclusion Notice “was sent on December 31, 2019, more than five years ago” and Petitioner “acknowledges that she did not timely file an appeal.”  MTD at 1 (citing P. Br. to ALJ at 2).  Petitioner argued in response that the ALJ “should exercise her discretion and permit the Petitioner’s request.”  Resp. to MTD at 1.  The I.G. replied that dismissal was legally mandatory.  I.G. MTD Reply at 1-2.

ALJ Dismissal

The ALJ dismissed Petitioner’s hearing request as untimely.  Dismissal at 1.  “By notice letter dated December 31, 2019,” the ALJ found, “the IG informed Petitioner that she was being excluded” and “advised Petitioner of her appeal rights, explaining that Petitioner had 60 days to file a written request for hearing.”  Dismissal at 1, 3.  The ALJ stated that

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“Petitioner does not dispute that she timely received the notice of exclusion, but argues that good cause exists for her untimely filing.”  Id. at 3.  The ALJ concluded that 42 C.F.R. § 1005.2(e)(1) “mandates the dismissal of an untimely hearing request when the receipt of the exclusion notice is not at issue” and that the regulation “is not ambiguous.”  Id.  The ALJ rejected Petitioner’s equitable arguments, including any claim to be “an unsophisticated claimant who relied on ineffective counsel” for legal advice, explaining that “[t]he regulations do not permit an ALJ to excuse a petitioner’s failure to meet regulatory filing requirements based on equitable grounds.”  Id. at 3-4.

Board Proceedings

Petitioner, through counsel, timely filed a Notice of Appeal and a Brief in Support of Appeal (P. Br.) before the Board, claiming factual and legal errors by the ALJ.  P. Br. at 4-6.  Petitioner contends that “the ALJ failed to consider” three primary factual issues.  P. Br. at 4.  They are whether Petitioner “is truly considered a ‘sophisticated’ claimant,” whether the record “support[s] any inference that [Petitioner] had timely receipt of the notice of exclusion,” and whether her criminal defense attorney failed “to provide competent counsel regarding the technicalities of a health care plea and [its] collateral consequences.”  Id. at 4-5.  Petitioner next argues that “the ALJ failed to consider” three principal legal issues also.  Id. at 6.  The first is whether the aggravating factors “should be considered in isolation without consideration of the mitigating factors of [Petitioner]’s case, like her personal characteristics and the incompetence of her attorney.”  Id.  The second legal issue is whether Petitioner can make “a ‘reasonable showing’ to rebut the presumption of receipt of the notice” due to her attorney’s incompetence.  Id.  The third legal issue is “whether the record demonstrates that petitioner has been pursuing her rights diligently or extraordinary circumstances stood in the way of a timely filing under Pace v. DiGu[g]lielmo, 544 U.S. 408, 409 (2005).”  Id. 

The I.G. responds that the Dismissal “is based on substantial evidence and in accordance with the law,” so the Board “should affirm.”  I.G. Br. at 1.  The I.G. argues the ALJ “rightly concluded that Appellant did not overcome the presumption of receipt, so her appeal was untimely,” and Petitioner’s other factual arguments are irrelevant.  Id. at 2-4, 7.  As for Petitioner’s legal contentions, the I.G. argues primarily that “because the appeal was untimely,” the ALJ “had no authority to consider other arguments” of law and rightly concluded “that she must dismiss the matter rather than hold a hearing.”  Id. at 6-7.

Standard of Review

“The standard of review on a disputed issue of fact is whether the initial decision is supported by substantial evidence on the whole record” and “[t]he standard of review on a disputed issue of law is whether the initial decision is erroneous.”  42 C.F.R. § 1005.21(h).

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Discussion

1. The ALJ’s determination that Petitioner timely received the Exclusion Notice is supported by substantial evidence and free of legal error.

The ALJ correctly stated that “[a]n individual is presumed to have received the IG’s exclusion notice within five days (excluding weekends and Federal holidays) from the date of the notice, unless the individual can make a reasonable showing to the contrary.”  Dismissal at 2 (citing 42 C.F.R. §§ 1005.2(c), 1005.12(b)).  The ALJ further explained that a petitioner can make a reasonable showing to rebut the presumption “when a petitioner’s statement denying receipt is accompanied by sufficient explanation and corroborating evidence.”  Id. at 3 (citing Kenneth Schrager, DAB No. 2366, at 3-4 (2011)).  “In this case,” however, the ALJ observed, Petitioner did not deny timely receipt but argued that “equitable tolling should apply to toll the filing deadline due to Petitioner’s previous counsel’s ineffective assistance.”  Id. at 3.  The ALJ rejected Petitioner’s position as factually and legally untenable.  Id. at 3-4.

Substantial evidence supports the ALJ’s decision.  Even an individual’s flat denial of having received an exclusion notice, “without ‘sufficient explanation and corroborating evidence,’ is insufficient to rebut the presumption of receipt within five days in accordance with section 1005.2(c).”  Toni De Lanoy, DAB No. 3127, at 10 (2024) (quoting Schrager at 4).  When considering a motion to dismiss a hearing request, an ALJ may draw reasonable inferences and determine credibility “for the purpose of deciding whether Petitioner had timely perfected [her] hearing right.”  Gary Grossman, DAB No. 2267, at 6-7 (2009).  Before the ALJ, Petitioner did not deny timely receipt (including in her affidavit), and instead made significant admissions.  “On January 20, 2020,” she acknowledged, she was excluded and “her defense attorney at the time did not properly explain the HHS-OIG exclusion process to her nor did he timely file an appeal,” so she requested consideration of “the incompetence of her counsel at the time in 2020.”  P. Br. to ALJ at 2 (emphasis added).  “In general, a party is deemed to have notice of facts or events about which the party’s lawyer has notice.”  Allan L. Silverstein, M.D., DAB No. 2908, at 9 n.7 (2018).  “Since her period of exclusion began in 2020,” Petitioner also complained, she “lost all her patients.”  P. Br. to ALJ at 3.  Petitioner averred that the exclusionary period caused her “significant financial hardship” and she “filed for personal and business bankruptcy in 2021.”  P. Aff. at 3, ¶ 22.  As the I.G. argues, “[i]t is impossible to reconcile these statements with any argument that [Petitioner] was unaware of her exclusion or its impact at the time” it occurred in 2020.  I.G. Br. at 4.

We reject Petitioner’s new assertion before the Board that “[n]o facts on the record establish that [she] or her counsel timely received notice of the exclusion.”  See P. Br. at 4.  Petitioner never made this claim before the ALJ, so we cannot consider it.  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.”).  Even if we could consider this new claim, we

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would have no authority to substitute our own factfinding for the ALJ’s.  Grossman at 7 (“[W]hen the Board conducts a substantial evidence review, as it is doing here with respect to the ALJ’s evidentiary findings” supporting a dismissal for untimeliness, the Board’s role “is not to re-weigh the evidence or to substitute its evaluation of the evidence for that of the ALJ.”).  We also need not consider the I.G.’s proffer that it “could offer additional evidence on remand in light of the new argument being made before the Board,” because 42 C.F.R. § 1005.2(c) does not require the I.G. to prove that Petitioner timely received the Exclusion Notice.  See I.G. Br. at 4; I.G. Proposed Ex. 1.  Instead, the excluded individual must rebut the presumption of timely receipt, as “it is ‘both reasonable and legally sound’ for parties in litigation to consider certain legal documents sent through a regular mail system and in the course of litigation to have been received by a date certain.”  See Schrager at 4 (quoting 57 Fed. Reg. 3298, 3320 (Jan. 29, 1992)).

The remaining factual issues Petitioner raises – whether Petitioner “is unsophisticated” legally and did not receive competent counsel from her criminal defense attorney about her exclusion – are legally irrelevant.  See P. Br. at 4-5.  The Board has held the presumption of timely receipt to be unrebutted where an excluded individual “showed only that she reviewed the exclusion notice after the presumed date of receipt,” but not “that she received the notice after the presumed date of receipt.”  De Lanoy at 11.  Comparably, the presumption of timely receipt is unrebutted here, as Petitioner at most suggests she first understood the Exclusion Notice some time after receiving it.  The ALJ was permissibly skeptical that Petitioner “did not appreciate the gravity of her exclusion until over five years after” the I.G. imposed it, especially given the Exclusion Notice’s plain language and Petitioner’s confirmation that she “can read, write, and understand English.”  Dismissal at 4; P. Br. at 1.  As for Petitioner’s claim of ineffective legal assistance, we have rejected such arguments that an excluded individual “was unable to meet the filing deadlines . . . because of representation issues with his previously-retained counsel.”  Bryant H. Hudson, III, M.D. DAB No. 2442, at 1 (2012).

2. The ALJ did not err in determining that dismissal of Petitioner’s hearing request was required under 42 C.F.R. § 1005.2(e)(1).

An ALJ “will dismiss a hearing request where,” as here, “[t]he petitioner’s . . . hearing request is not filed in a timely manner.”  42 C.F.R. § 1005.2(e)(1).  As discussed above, substantial record evidence shows that Petitioner did not file a hearing request for five years after she presumptively received the Exclusion Notice, and Petitioner did not rebut the regulatory presumption of timely receipt of that notice.  “The Board has consistently affirmed the conclusion, reached by the ALJ here, that 42 C.F.R. § 1005.2(e)(1) leaves an ALJ no discretion to decide not to dismiss an untimely hearing request” and contains no “‘good cause’ exception.”  William Wyttenbach, M.D., DAB No. 2724, at 1 n.1 (2016); see, e.g., Boris Sachakov, M.D., DAB No. 2707, at 4 (2016) (“The ALJ’s conclusion that section 1005.2(e)(1) mandates dismissal of an untimely hearing request is correct.”); Grossman at 5 (stating that under the “governing regulations,” 42 C.F.R. § 1005.2(c) and

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1005.2(e)(1), “the ALJ was required to dismiss Petitioner’s hearing request if it was not timely filed”).  Therefore, the ALJ’s dismissal of Petitioner’s hearing request for untimeliness was mandatory and free of error.

The legal issues Plaintiff presents before the Board do not alter this conclusion or establish error.  The ALJ appropriately did not balance the I.G.’s “listed aggravating factors” against any “mitigating factors” because the ALJ had no authority to reach such substantive issues after ruling against Petitioner on the threshold procedural issue of the appeal’s untimeliness.  See P. Br. at 6; Paresh R. Patel, DAB No. 2825, at 1 n.1 (2017) (“[S]ince Petitioner did not file his hearing request on time, the ALJ was required to dismiss it and, therefore, lacked authority to consider Petitioner’s arguments, which went to the merits, not the timeliness issue.”).  The ALJ did consider whether Petitioner could make “a ‘reasonable showing’ to rebut the presumption of receipt of the notice due to her attorney’s failure to competently represent her,” see P. Br. at 6; as discussed above, the ALJ supportably concluded that Petitioner made no such showing.  Petitioner’s third and final legal issue, whether she made the requisite showing under Pace, is inconsequential.  The ALJ cited Pace for the factual elements “that a petitioner seeking equitable tolling bears the burden of establishing,” and found that Petitioner had not proven them and had not established the legal applicability of equitable tolling principles to these proceedings.  Dismissal at 3.  The ALJ explained that “[t]he regulations do not permit an ALJ to excuse a petitioner’s failure to meet regulatory filing requirements based on equitable grounds.”  Id. at 4.  The ALJ correctly stated the law.  See Sonny Austin Ramdeo, DAB No. 3152, at 2 (2024) (holding petitioner’s “equitable tolling argument” was “unavailing,” because “the Part 1005 regulations do not permit an ALJ to extend the 60-day deadline for good cause and an untimely hearing request must be dismissed”); Schrager at 6 (“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.”).

Conclusion

We affirm the Dismissal.