Linda Li MD, ALJ Ruling No. 2019-3 (HHS CRD Feb. 28, 2019)

RULING DISMISSING CASE

The Inspector General of the United States Department of Health and Human Services (the IG) excluded Petitioner, Linda Li, from participation in Medicare, Medicaid, and all other federal health care programs because she was suspended, excluded, or otherwise sanctioned under a state health care program for reasons bearing on her professional competence, professional performance, or financial integrity.

Petitioner sought review of her exclusion before me. During the pendency of these proceedings, the IG reinstated Petitioner's eligibility to participate in federal health care programs and moved to dismiss Petitioner's hearing request as moot. Petitioner opposed the motion. For the reasons stated below, I grant the IG's motion and dismiss this case.

I. Procedural History

By letter dated September 30, 2015, the IG notified Petitioner that she was being excluded, effective 20 days from the date of the letter, from participation in Medicare, Medicaid, and all federal health programs under section 1128(b)(5) of the Social Security Act (Act) (42 U.S.C. § 1320a-7(b)(5)). The IG explained that he took this action because

Page 2

Petitioner was suspended, excluded, or otherwise sanctioned by the Illinois Department of Healthcare and Family Service (IDHFS), a federal program involving the provision of health care or a state health care program, for reasons bearing on her professional competence, professional performance, or financial integrity. The IG also notified Petitioner that her exclusion would remain in effect until she had been reinstated to the health care program that took action against her. IG Exhibit (Ex.) 1 at 1.1

On April 2, 2018, Petitioner requested a hearing before an administrative law judge. I held a pre-hearing telephone conference on May 2, 2018, the substance of which is summarized in my May 3, 2018 Order Summarizing Pre-hearing Conference and Setting Schedule for Filing Briefs and Documentary Evidence (Summary Order). See 42 C.F.R. § 1005.6. Petitioner asserted that she did not receive the IG's September 30, 2015 letter until February 5, 2018, and the IG did not contest her representation. I accordingly found her hearing request was filed timely. Summary Order at 2; see also 42 C.F.R. § 1005.2(c) ("The request for a hearing . . . must be filed within 60 days after the notice, provided in accordance with [42 C.F.R.] § 1001.2002 . . . , is received by the petitioner or respondent.").

At the pre-hearing conference, I directed the parties to file pre-hearing briefs articulating their respective arguments as well as identifying witnesses and exhibits in support thereof. Summary Order at 6. The IG filed a brief and seven exhibits (IG Exs. 1-7). Petitioner filed a brief2 (P. Br) with 50 exhibits,3 along with several requests for subpoenas.4

Page 3

In her pre-hearing submissions, Petitioner included a letter from the IG dated July 9, 2018, advising her the IG had lifted her exclusion and reinstated her eligibility to participate in federal health care programs. July 9, 2018 Reinstatement Letter, attached hereto (Reinstatement Letter).5 I therefore ordered the parties to brief the issue of whether this case is moot. Nov. 8, 2018 Order for Supp. Briefing at 1-2.

In response to my order, the IG moved to dismiss the case as moot (MTD). Petitioner filed a supplemental brief (P. Supp. Br.) with additional supporting documents.

II. Exhibits

Because I am resolving this matter on procedural grounds, I need not discuss the admissibility of the parties' exhibits. However, I note that Petitioner did not object to any of the IG's exhibits, and I therefore deem those exhibits admissible to the extent they demonstrate the facts I discuss below related to the basis for the IG's exclusion of Petitioner.

III. Issue

Whether Petitioner's hearing request should be dismissed as moot pursuant to 42 C.F.R. § 1005.2(e)(4).

III. Applicable Law

A. Right to a Hearing

Section 1128(f) of the Act (42 U.S.C. § 1320a-7(f)) provides Petitioner with rights to an administrative hearing and judicial review of the final action of the Secretary of Health and Human Services (Secretary). The right to a hearing before an administrative law judge (ALJ) is set forth in 42 C.F.R. §§ 1001.2007(a) and 1005.2, and the rights of both the sanctioned party and the IG to participate in a hearing are specified by 42 C.F.R. § 1005.3.

The governing regulations do not permit me the latitude to hear cases in certain instances, described at 42 C.F.R. § 1005.2(e). Applicable here, the Secretary's regulations provide "[t]he ALJ will dismiss a hearing request where . . . [t]he petitioner's or respondent's hearing request fails to raise any issue which may properly be addressed in a hearing." 42 C.F.R. § 1005.2(e)(4) (emphasis added).

Page 4

B. Doctrine of Mootness

Federal courts may only exercise jurisdiction over "cases" or "controversies." U.S. Const. art. III, § 2, cl. 1. Such cases or controversies must involve a real and concrete dispute. Genesis Healthcare Corp. v. Symczyk, 569 U.S. 66, 71 (2013). To ensure this is true, a person seeking "to invoke federal-court jurisdiction . . . must demonstrate that he possesses a legally cognizable interest, or personal stake, in the outcome of the action." Id. (internal quotation marks omitted).

The dispute also "must be extant at all stages of review, not merely at the time the complaint is filed." United States v. Sanchez-Gomez, 138 S. Ct. 1532, 1537 (2018). If the dispute ceases to exist, the case falls outside the court's jurisdiction and is subject to dismissal if no exception to the mootness doctrine applies. Id. at 1537-42. Dismissal for mootness is not appropriate, however, where the case involves a dispute that is capable of repetition yet avoiding review, or where adverse collateral consequences arising from the dispute outlive the dispute itself. See Friedman v. Shalala, 46 F.3d 115, 117-19 (1st Cir. 1995).

Because the mootness doctrine emanates from Article III of the Constitution, it does not apply directly to administrative proceedings. Yakima Valley School, DAB No. 2422 at 7 (2011) (citing Climax Molybdenum Co. v. Sec'y of Labor, Mine Safety & Health Admin. (MSHA), 703 F.2d. 447, 451 (10th Cir. 1983)). Nevertheless, it is appropriate for administrative agencies to rely on the principles of that doctrine in considering motions to dismiss for mootness. Climax Molybdenum, 703 F.2d at 451; Cornerstone Med., Inc., DAB No. 2585 at 2 (Apr. 17, 2014).

Application of the mootness doctrine in this context is also entirely consistent with the applicable regulations, which require dismissal of a hearing request that does not raise an issue I can resolve; this conclusion has been reached by another judge in this division, as well as a reviewing federal circuit court. See Carolyn Joyce Watson McKinney, DAB CR849 (2001) (concluding that because a hearing request seeking to challenge an exclusion imposed by the IG was moot, the hearing request was subject to dismissal pursuant to 42 C.F.R. § 1005.2(e)(4)); Friedman, 46 F.3d at 117-20 (providing that dismissal for mootness of a suit challenging exclusion from participation in federal health care programs was proper where the individual was reinstated and could not otherwise show that an exception to the mootness doctrine applied).

IV. Findings of Fact, Conclusions of Law, and Analysis

My conclusions of law are set forth in bold and followed by pertinent findings of fact and analysis.

Page 5

A. Petitioner's request for hearing was timely, and I have jurisdiction.

Although I have not decided this case on the merits, there is no dispute that Petitioner timely requested a hearing. I therefore have jurisdiction to hear and decide this case. See 42 C.F.R. §§ 1001.2007(a)(1)-(2), 1005.2(a); see also 42 U.S.C. § 1320a-7(f)(1).

B. Petitioner's request for hearing is moot and must be dismissed.

Petitioner originally sought to challenge the IG's determination to exclude her from participation in Medicare, Medicaid, and all federal health care programs. Filing a request for hearing in this venue raises only one issue that I may hear and decide: whether the IG had a basis to exclude Petitioner. 42 C.F.R. § 1001.2007(a)(1). Petitioner has been reinstated as of July 9, 2018. Reinstatement Letter. Were she to prevail before me, the IG would be required to withdraw Petitioner's exclusion and retroactively reinstate her into Medicare, Medicaid, and other Federal health care programs going back to the effective date of her exclusion, October 19, 2015. 42 C.F.R. § 1001.3005(a)(3).

Thus, the question presented to me by the IG's motion to dismiss is whether any tangible injury to Petitioner occurred as a result of her exclusion between October 19, 2015 and July 9, 2018 that could be remedied in the event she prevailed before me. To that end, I asked the parties to brief the issue, in part to allow Petitioner to assert evidence of any injury a decision from me in her favor could cure. Supp. Br. Order at 2.

The IG contends that Petitioner's request for hearing is in fact moot and that no exception to the mootness doctrine applies to save this case from dismissal. IG Motion at 3-4. Petitioner argues that the case is not moot because she "has not received the remedy she sought." P. Supp. Br. at 2. She avers that "there are fundamental errors in this Medicare exclusion," casts aspersions on the IG's motivations for excluding her, and claims that the exclusion "has damaged [the] public image of [the] federal IG and harm[ed] physician moral[e] and destroy[ed] the trusts [sic]." Id. at 2-3. She also claims that she suffered "extreme emotional trauma and foreseeable financial loss permanently" as a result of the exclusion and other governmental action. Id. at 3.

The IG is ultimately correct. Petitioner has not identified an injury that could be cured were she to prevail in this proceeding and win reinstatement retroactive to the date of her exclusion. In an attempt to do so, she complains that the Office of Personnel Management (OPM) debarred her from participating in federal employee health programs. P. Supp. Br. at 3. But Petitioner has not demonstrated how prevailing before me would cure an injury that resulted from her debarred status before OPM prior to July 9, 2018. In any case, her supporting documents show that OPM has also reinstated her as of July 9, 2018. Dkt. No. 17a at 5. Her claim before OPM is as moot as her claim here.

Page 6

Petitioner asserts review of a decade of her past claims for Medicare and Medicaid reimbursement would demonstrate injury to her in the form of improperly denied claims; she contends these denials stemmed from theft of her identity and other criminal activity outside her control.6 P. Supp. Br. at 2-5. Even if her allegations were true, a reversal of her exclusion by me would have no remedial effect. My ruling in her favor would give her no remedy she could enforce against either the Medicare program or the alleged fraudsters whose actions putatively resulted in the denial of ten years' worth of her Medicare and Medicaid claims.

Petitioner also claims she has been subject to non-pecuniary harm. But whatever reputational harm or emotional trauma that Petitioner suffered did not truly arise from the IG's exclusion action and so cannot be remedied in this proceeding. As the First Circuit observed in a similar context, "it is not the HHS exclusion which has tarnished Friedman's reputation . . . [s]ince Friedman's Medicare exclusion was based solely on the fact that his license had been revoked, the exclusion effectively signified only that New York had revoked Friedman's license for reasons bearing on his professional competence or performance. Although the exclusion resulted from the license revocation, it conferred no additional stigma on Friedman." Friedman, 46 F.3d at 118 (internal citation omitted); see also Florida Farmworkers Council, Inc. v. Marshall, 710 F.2d 721, 731 (11th Cir. 1983).

Petitioner's situation is strikingly similar. The IG's decision to exclude her stemmed from the suspension of Petitioner's medical license by the Illinois Department of Financial and Professional Regulation (IDFPR), IG Ex. 5, which led to a determination by IDHFS to terminate Petitioner's eligibility to participate in Medicaid. IG Ex. 2 at 5; IG Ex. 3 at 5; IG Ex. 4. Like Friedman, any potential harm to Petitioner came from her license suspension, not the derivative exclusion action by the IG. See Friedman, 46 F.3d at 118.

Ultimately, Petitioner has not identified any injuries that could be cured by prevailing before me. This case is therefore moot and subject to dismissal, if no exception to mootness applies. Friedman, 46 F.3d at 117-20; 42 C.F.R. § 1005.2(e)(4). Of the available exceptions to the mootness doctrine developed by the U.S. Supreme Court, the IG argues against only two (and I see no basis to apply any others). MTD at 4. The first is the possibility of collateral legal consequences, which typically arise in the context of criminal convictions. See Sibron v. New York, 392 U.S. 40, 54-55 (1968). Certainly, there are no collateral legal consequences identified here, since Petitioner is no longer excluded and is free to participate in federal health care programs.

Page 7

The second relevant exception applies to "conduct capable of repetition, yet evading review," meaning short-term injuries susceptible to recurrence but not lasting long enough to permit federal judicial review. S. Pac. Terminal Co. v. ICC, 219 U.S. 498 (1911).7 This exception is not applicable here. It is highly unlikely the IG will use Petitioner's prior suspension to again exclude her, especially since the IG has chosen to reinstate her. See Friedman, 46 F.3d at 117 ("[T]he fact that Friedman was reinstated shows that HHS would be unlikely to use the California revocation to exclude Friedman in the future.").

Petitioner has not shown any injury that could be remedied by a fully favorable decision from me. Nor has she demonstrated an exception to the mootness doctrine applies that could save her hearing request from dismissal. Because this case is moot and no exception to mootness applies, I conclude it must be dismissed. See Friedman, 46 F.3d at 120; 42 C.F.R. § 1005.2(e)(4).

C. Alternately, there exists a basis for Petitioner's exclusion pursuant to section 1128(b)(7) of the Act, and the period of exclusion was reasonable as a matter of law.

Even if Petitioner's hearing request were to survive dismissal, I would still conclude that the IG had a basis to exclude Petitioner under the above-described provisions. The Secretary may exclude from participation in federal health care programs "[a]ny individual or entity which has been suspended or excluded from participation, or otherwise sanctioned, under . . . any Federal program . . . involving the provision of health care, or . . . a State health care program . . . for reasons bearing on the individual's or entity's professional competence, professional performance, or financial integrity." 42 U.S.C. § 1320a-7(b)(5); see also 42 C.F.R. § 1001.601(a)(1).

A person is "otherwise sanctioned" when a federal or state health care program takes any "action[] that limit[s] the ability of [the] person to participate in the program at issue regardless of what such an action is called . . . ." 42 C.F.R. § 1001.601(a)(2). When an exclusion is based on a determination by a government agency to suspend, exclude, or otherwise sanction a person under a federal or state health care program, that determination may not be collaterally attacked in this proceeding. 42 C.F.R. § 1001.2007(d).

Page 8

Here, IDHFS terminated Petitioner's eligibility to participate in the Illinois Medicaid program because IDFPR suspended Petitioner's medical license. IG Ex. 2 at 5; IG Ex. 3 at 5; IG Ex. 4. IDFPR in turn suspended Petitioner's medical license because it found "that the public interest, safety and welfare imperatively require emergency action to prevent the continued practice of [Petitioner], in that [her] actions constitute an immediate danger to the public." IG Ex. 5 at 1. Clearly, then, Petitioner was "otherwise sanctioned" by a state health care program for reasons bearing on her professional competence or performance as contemplated by 42 U.S.C. § 1320a-7(b)(5).

The length of Petitioner's exclusion is also unquestionably reasonable. Petitioner's exclusion was to continue until she was reinstated to the health care program that took action against her. IG Ex. 1 at 1. This is the minimum exclusion period permitted in this circumstance, making the exclusion length reasonable as a matter of law. 42 U.S.C. § 1320a-7(c)(3)(E); 42 C.F.R. § 1001.601(b)(1).

Petitioner does not truly dispute these underlying state agency actions which were precedent conditions to her exclusion. She has instead used this forum to air her many grievances towards various state and federal entities, often complaining of plainly irrelevant issues, including ten years' worth of billing disputes with the Medicare program. See generally P. Br.; P. Supp. Br. Where they are even remotely related to this proceedings, her arguments constitute impermissible collateral attacks on IDFPR's and IDHFS's determinations that I could not consider in a decision on the merits of Petitioner's claim. 42 C.F.R. § 1001.2007(d). Accordingly, were I to consider this case on its merits, I would uphold both the IG's exclusion determination and the period of the exclusion, which was the minimum permitted by law.

V. Conclusion

For the foregoing reasons, I conclude Petitioner's hearing request is moot, that no exceptions to the mootness doctrine apply, and that Petitioner no longer has a right to a hearing. See Friedman, 46 F.3d at 120; 42 C.F.R. § 1005.2(e)(4). Even if I were to consider this matter on the merits, I would uphold the IG's exclusion determination. I order this case dismissed.

• 1.Document 6b in the official case file maintained in the DAB E-File system; for clarity and simplicity, whenever possible I will cite to the exhibits attached to the parties' respective briefs by the exhibit numbers therein, not the document numbers assigned by the E-File system.
• 2.I rejected Petitioner's initial brief because it exceeded the page limitation imposed in my Summary Order. July 31, 2018 Omnibus Order at 1. Petitioner later filed an amended brief (P. Br.) that conformed to my instructions.
• 3.The exact number is debatable because Petitioner submitted several proposed exhibits with multiple subparts, marked, for example, as "P. Ex. 2(1)," "P. Ex. 2(2)," "P. Ex. 2(3)," and so forth. Moreover, not all of Petitioner's submissions are currently available via DAB E-file. Some of her earlier-submitted documents were uploaded into the electronic case record by my office as a matter of course, which does not signify their acceptance into the record. Petitioner subsequently submitted more documents by mail, which were not uploaded into the electronic docket. Because I am deciding this case on grounds of justiciability, these extant records will not be uploaded or included in the record and are being returned to Petitioner separately.
• 4.Because I am dismissing this case on procedural grounds, it is unnecessary for me to rule on Petitioner's motions for subpoenas.
• 5.The component of the Office of the IG responsible for reinstatement apparently did not advise IG counsel, who filed a reply in this matter without mention of Dr. Li's reinstatement.
• 6.Petitioner appears to labor under the misperception that her exclusion related to how her own billing claims to Medicare were handled or processed. P. Supp. Br. At 2. As I discuss below, her exclusion was based solely on action taken by a state agency to prevent her from participating in the Medicaid program because her medical license had been suspended.
• 7.This exception was best illustrated in Roe v. Wade, 410 U.S. 113 (1973), where the Supreme Court found the exception applicable because the normal human gestation period was short enough that any pregnancy would come to term prior to the completion of the usual appellate process, effectively denying Roe or any other woman appellate review. The Court observed that pregnancy was a "classic justification" for non-mootness as "truly 'capable of repetition, yet evading review.'" 410 U.S. at 125 (citations omitted).