Milad Ishak Shaker, Ruling No. 2025-2 (2025)

RULING DENYING REQUEST FOR RECONSIDERATION

Petitioner Milad Ishak Shaker, M.D. asks the Board to reconsider its decision in the case of Milad Ishak Shaker, M.D., DAB No. 3182 (2025) (Shaker I).  The Board affirmed the decision of an Administrative Law Judge (ALJ) upholding the Inspector General’s (I.G.’s) exclusion of Petitioner from participating in Medicare, Medicaid, and all federal health care programs for seven years under section 1128(a)(4) of the Social Security Act (Act).  See Milad Ishak Shaker, M.D., DAB CR6595 (2025).  The Board may reopen and reconsider a decision for the purpose of correcting a clear error of law or fact, but as discussed below Petitioner’s motion identifies no such error; therefore, we deny Petitioner’s request to reconsider Shaker I, DAB No. 3182.

Background

Section 1128(a)(4) of the Act mandates exclusion of an individual who “has been convicted for an offense which occurred after August 21, 1996, under Federal or State law, of a criminal offense consisting of a felony relating to the unlawful manufacture, distribution, prescription, or dispensing of a controlled substance.”  

In Shaker I, DAB No. 3182, the Board sustained the I.G.’s decision to exclude Petitioner pursuant to section 1128(a)(4) of the Act.  Petitioner had argued that:  the ALJ and DAB lacked jurisdiction because the case was “moot and dismissed”; the ALJ Decision was “cursory and baseless”; Petitioner’s arguments were not collateral attacks on his conviction; and the ALJ was biased.  Shaker I, DAB No. 3182, at 7.  Petitioner also sought to present new evidence.  Id.  The Board rejected each of Petitioner’s arguments, denied an oral hearing and a remand, and upheld the ALJ Decision for reasons explained at length in the Decision, id. at 7-16.

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Petitioner’s Request

Petitioner filed his request for reconsideration and/or rehearing on May 9, 2025.  P.’s Recons./Reh’g Pet. (P. Pet.).  Petitioner asserts two main sets of arguments concerning, respectively, his federal felony conviction, id. at 1-18, and alleged errors in the Board Decision, id. at 18-21.

Discussion

The Board may reopen and reconsider a decision involving an individual’s exclusion from federal health care programs when a party promptly alleges a clear error of fact or law in the decision.  See Charles Brian Griffin, DAB Ruling No. 2017-3, at 2-3 (May 10, 2017).  Reopening and reconsideration are not routine steps in the process of appealing an ALJ Decision.  Id. at 2; accord Delores L. Knight, DAB Ruling No. 2019-4, at 3 (Aug. 8, 2019).  A petition for rehearing and/or reconsideration is not a vehicle for a party to repeat arguments already made and rejected.  Maria Bejacmar-Didier, DAB Ruling No. 2019-5, at 2 (Sept. 19, 2019).  A motion for reconsideration also “may not be used to make arguments and representations that an appellant could have made during its appeal, but did not.”  Rosa Velia Serrano, DAB Ruling No. 2019-2, at 6 (Apr. 25, 2019).

Applying these standards here, Petitioner identifies no factual or legal error, much less any clear error, requiring the Board to reopen and reconsider Shaker I, DAB No. 3182.  Petitioner instead attempts to relitigate the case with a combination of arguments already made and rejected, and arguments available previously but not asserted previously.  Petitioner expressly “incorporate[s] by reference,” and thus repeats, “the arguments and evidence presented in [his] previous submissions.”  P. Pet. at 1.  Petitioner reasserts his “mootness and Dismissal argument” concerning his federal conviction and again contends this argument was not a “collateral attack” on that conviction.  Id. at 2, 12-13.  The Board has addressed those arguments thoroughly.  Shaker I, DAB No. 3182, at 8-12.  Petitioner also reiterates that the relevant proceedings are a “procedural and jurisdictional nullity.”  P. Pet. at 6, 17-18.  The Board has considered and rejected Petitioner’s jurisdictional arguments as well.  Shaker I, DAB No. 3182, at 7-8, 12.  To the extent Petitioner seeks to inject new issues – for example, by claiming “IAC,” or ineffective assistance of counsel, from his attorney “who is part of this entire procedural and jurisdictional nullity,” P. Pet. at 20 – Petitioner could have raised those points before the ALJ and Board but did not.  In any event, such new arguments are further collateral attacks, which are forbidden under 42 C.F.R. § f1001.2007(d).  Petitioner’s disagreement with the Board’s plain reading of the evidence establishes no factual error, and Petitioner cites to no legal authorities establishing any legal error, in the Board’s Decision, including the Board’s discretionary determinations that neither an oral hearing nor a remand for consideration of new evidence was warranted. 

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Conclusion

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