Ishtiaq A. Malik, M.D., ALJ Ruling 2019-5 (HHS CRD Apr. 3, 2019)

RULING DISMISSING CASE

Petitioner, Ishtiaq A. Malik, M.D., is a Maryland physician who – more than three years after it was imposed – appeals his 17-year exclusion from participation in Medicare, Medicaid, and all federal health care programs.  The Inspector General (IG) moves to dismiss his appeal as untimely filed.

I agree that Petitioner’s appeal is untimely, and, for the reasons discussed below, I dismiss Petitioner’s appeal.

Background

In a letter dated September 3, 2014, the IG advised Petitioner Malik that, based on evidence of false billing, the IG proposed excluding him from participation in all federal health care programs, as provided for under section 1128(b)(7) of the Social Security Act (Act).  The letter cited the civil judgment against him in United States of America, et al. v. Ishtiaq A. Malik, M.D., et al., Civ. A. No. 12-1234 (RLW) (D.D.C.), and invited him to submit, within 30 days of receipt of the letter, documentary evidence or written argument concerning whether the proposed exclusion was warranted.  IG Ex. 2.  The IG mailed the notice to Petitioner at his office address and sent a copy of the notice, by email, to Petitioner’s (then) attorney, Ronald Schwartz.  IG Ex. 2; P. Ex. 2.

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Thereafter, Petitioner hired new counsel, Barry Coburn and his firm, Coburn & Greenbaum, PLLC.  IG Exs. 4, 5.  The new attorneys met with IG counsel and, on December 1, 2014, submitted a written response to the September 3 notice.  IG Exs. 6, 7, 8.

In a letter dated February 4, 2015, the IG advised Petitioner Malik that the IG proposed excluding him from program participation for a period of 17 years, pursuant to section 1128(b)(7) of the Act.  IG Ex. 9.  The letter set forth Petitioner’s appeal rights:  he could request a hearing before an administrative law judge; to do so, he “must file a request under the procedures set forth at 42 C.F.R. Part 1005 within 60 days of [his] receipt of this letter.”  IG Ex. 9 at 5 (emphasis added).

On February 5, 2015, IG counsel emailed Attorney Coburn a copy of the February 4 letter and asked “whether you would prefer us to send the original to your attention or directly to Dr. Malik.”  IG Ex. 10 at 1.  On the same day, Counsel responded that the original should be sent to him.  IG Ex. 11 at 1.

Petitioner did not appeal within 60 days.

In a letter dated May 11, 2015, the IG advised Petitioner that he was excluded from program participation for a period of 17 years.  The letter explained that the action was taken under section 1128(b)(7) of the Act and was based on Petitioner’s submission of claims to Medicare and other government programs “for items and services that [he] knew or should have known were not provided as claimed and were false and fraudulent.”  IG Ex. 1 at 1.

The IG sent Petitioner’s attorney a courtesy copy of the notice letter and asked whether he would accept service on behalf of his client.  Attorney Coburn responded that he “d[id] not believe that [he was] authorized to accept service.”  IG Ex. 14.  The IG therefore sent the letter, by certified first class mail, to Petitioner at his practice address in Silver Spring, Maryland.  The letter was not returned.

More than three years later, on November 23, 2018, Petitioner requested a hearing before an Administrative Law Judge.

The IG moves to dismiss Petitioner’s hearing request because it is untimely.  With his motion and memorandum in support (IG Br.), the IG submits 16 exhibits (IG Exs. 1-16).  With his amended memorandum in opposition (P. Br.), Petitioner submits 19 exhibits (P. Exs. 1-19).  With a motion for leave, the IG filed a reply; Petitioner opposed.  I grant the IG leave to file the reply.

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Discussion

Petitioner’s hearing request must be dismissed pursuant to 42 C.F.R. § 1005.2(e)(1) because it was not timely filed.1

The IG may exclude an individual from federal program participation if that individual “has committed an act described in section 1128A [of the Act].”  Act § 1128(b)(7); 42 C.F.R. § 1001.901(a).  Section 1128A lists actions for which civil money penalties may be imposed, including submitting false and fraudulent claims to federal healthcare programs.

Unlike other types of section 1128 exclusions, individuals excluded under section 1128(b)(7) are generally entitled to review before an exclusion is imposed.  42 C.F.R. § 1001.2003(a).  In a notice letter (here, the February 4 letter), the IG proposes excluding the individual, effective 60 days after receipt of the notice of the proposed exclusion, unless, within that time, the individual files an acceptable written request for hearing.  42 C.F.R. § 1001.2003.

By statute and regulation, the individual must request a hearing within 60 days after he receives notice that the IG proposes to exclude him from program participation.  Act §§ 205(b), 1128(f)(1); 42 C.F.R. §§ 1001.2003(a), 1005.2.2  The date of receipt is presumed to be five days after the date of the notice unless there is a reasonable showing to the contrary.  42 C.F.R. § 1005.2(c); see 42 C.F.R. § 1001.2003(a) (referring to section 1005.2 for definition of “receipt of the notice”).  The regulations include no good-cause exceptions for untimely filing, providing that the ALJ will dismiss a hearing request that is not filed in a timely manner.  42 C.F.R. § 1005.2(e)(1); John Maiorano, R. Ph., v. Thompson, Civ. A. No. 04-2279 at 6 (D.N.J. 2008); Boris Sachakov, M.D., DAB No. 2707 at 4 (2016); Kenneth Schrager, DAB No. 2366 at 3 (2011).

When an individual is represented by an attorney, the IG may serve notice on the attorney and the presumption is that the individual received the notice.  Peter D. Barran, M.D., DAB No. 1776 at 4 (2001); see Gary Grossman, DAB No. 2267 at 5, 9-10 (2009).

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Here, Petitioner concedes that the IG sent the September 3 notice letter to his then-attorney, Ronald Schwartz, who provided him with a copy.  P. Br. at 2; P. Ex. 2; IG Ex. 3.  On September 30, 2014, Petitioner hired Attorney Coburn and his firm to represent him in the IG exclusion.  P. Ex. 3.  Attorney Coburn notified IG counsel and, on behalf of Petitioner, submitted a written response to the September notice.  IG Exs. 5, 6, 7; P. Exs. 4, 5.

In a January 20, 2015 email to Attorney Coburn, Petitioner Malik told him that he was returning to Pakistan and did not want to pursue “any” of his cases “any further.”  P. Ex. 6.  Although the email contains a typo – he wrote “do want want to pursue any of my cases any further” – the meaning is clear.  Petitioner had decided to abandon all of his appeals.  P. Ex. 6; P. Br. at 3 n.2.  In reply, Attorney Coburn confirmed that Petitioner did “not want to pursue [his] cases any further.”  P. Ex. 7.

As noted above, on February 5, 2015, IG counsel emailed the February 4 notice letter to Attorney Coburn and, at the attorney’s instructions, sent him a copy of the original (presumably by mail).  IG Ex. 11 at 1; P. Ex. 11 at 2.  On the same day, Attorney Coburn emailed Petitioner the following message:

Ishtiaq – This just came in.  Is there a time today or tomorrow when we can get on the phone and discuss?  I know you’ve instructed us not to do any more work on anything, but I think it might well be in your interest to contest this.  Hoping we can discuss soon.  If we don’t, then we’ll of course comply with your instruction to do nothing.  Best, Barry

P. Ex. 11 at 2.

In a follow-up email, sent February 6, Attorney Coburn confirmed that he had sent Petitioner the February 4 notice of proposed exclusion and that Petitioner would certainly be excluded from program participation if he did not respond to the IG:

Dr. Malik – I’m following up on my calls to you this morning, which I made when I did not hear back from you in response to the email I sent you yesterday.  I am confirming your instruction to me just now to take no further action on your behalf in any matter, and to refrain from responding in any way to the HHS Notice of Proposed Exclusion that I forwarded to you yesterday.  As I’m sure you know, this course of action – which is against our advice – will inevitably result in an order of exclusion being granted.

P. Ex. 11 at 1 (emphasis added).

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Petitioner, nevertheless, claims that Attorney Coburn did not forward the notice letter to him.  P. Br. at 3.  I find this highly unlikely.

Petitioner also claims that he did not understand that, in his February 5 and 6 emails, Attorney Coburn referred to a new notice, and not the September 3 notice of proposed exclusion.  I find this claim not credible for several compelling reasons:

• First, Petitioner well knew, based on the September 3 notice, that his exclusion was pending; his attorney had responded to the IG’s invitation to submit evidence and argument on his behalf.  He should have been expecting the IG’s decision.
• Second, as Petitioner concedes, on February 5, Attorney Coburn forwarded the IG’s February 5 email message; that message explicitly refers to the “copy of the Notice of Proposed Exclusion addressed to Dr. Malik.”  P. Ex. 11 at 2.
• Third, with the forwarded message, Attorney Coburn unambiguously tells Petitioner that he is attaching the IG’s notice:  “This just came in.”  P. Ex. 11 at 2.  Attorney Coburn is obviously referring to a new notice, and not to the September 3 notice that Petitioner already had.
• Fourth, in his February 5 message, Attorney Coburn urged Petitioner to appeal the proposed exclusion:  “I think it might well be in your interest to contest this.”  P. Ex. 11 at 2.
• Fifth, Attorney Coburn’s February 6 email leaves no doubt that he sent Petitioner the February 4 notice letter; that he called Petitioner and explained the significance of that notice letter; and that he again fervently encouraged Petitioner to appeal.  The email confirms that Petitioner instructed him to take no further action; it warns that Petitioner’s decision not to appeal would “inevitably result in an order of exclusion being granted.”  P. Ex. 11 at 1.

Petitioner concedes that he received the IG’s May 11, 2015 notice of exclusion.  P. Br. at 7.  He did not thereafter contact the IG until filing this appeal more than three and a half years later.

Based on this evidence, I conclude that, on February 5, 2015, Petitioner Malik received notice of his proposed exclusion.  Notwithstanding Attorney Coburn’s best efforts to persuade him otherwise, and fully understanding that he would be excluded, Petitioner decided not to appeal.  Almost four years later, he changed his mind.  He is too late.  I have no discretion and must dismiss his hearing request pursuant to 42 C.F.R. § 1005.2(e)(1).

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Finally, even if I agreed that Attorney Coburn did not forward the February 4 notice to Petitioner Malik (which I do not), I would dismiss this appeal as untimely.  As of February 5, 2015, Petitioner knew – because his attorney repeatedly told him so – that the IG proposed excluding him for a period of 17 years and that the exclusion would go into effect if he did not appeal.  For years, he made no effort to contact the IG or otherwise seek review of the IG’s decision.  An individual facing exclusion under section 1128 cannot willfully disregard his knowledge of his exclusion and expect to preserve indefinitely his right to seek review.

Ruling

Petitioner’s hearing request is therefore dismissed pursuant to 42 C.F.R. § 1005.2(e)(i).

• 1. I make this one finding of fact/conclusion of law.
• 2. Section 1005.2(c) appears to contain a significant typographical error.  It provides that the request for hearing “be filed within 60 days after the notice, provided in accordance with § 1001.2002, § 1001.203 . . . , is received by the petitioner or respondent.”  Presumably, the drafters intended to cite § 1001.2003.  Compare 57 Fed. Reg. 3298, 3350 (Jan. 29, 1992) (citing to § 1001.2003) with 65 Fed. Reg. 24,400, 24,418 (Apr. 26, 2000) (changing the citation to § 1001.203 without explanation).  There is no section 1001.203.