Janice Troisi, DAB CR6014 (2022)

DECISION

Petitioner, Janice Troisi, requested a hearing to contest the Inspector General’s (IG’s) determination to exclude her from participation in the Medicare, Medicaid, and all federal health care programs under section 1128(a)(1) of the Social Security Act.  The IG has moved to dismiss, arguing that the appeal is untimely.  I agree and dismiss Petitioner’s appeal.

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

In a letter dated May 30, 2016, the IG advised Petitioner that she was excluded from participation in Medicare, Medicaid, and all federal health care programs for 10 years.  The IG stated that Petitioner was excluded because she had been convicted, in the United States District Court for the District of Massachusetts (federal district court), of a criminal offense related to the delivery of an item or service under Medicare or a State health care program.  On September 20, 2021, Petitioner filed a hearing request by uploading it to the Departmental Appeals Board (DAB) Electronic Filing System

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(E‑File).  The case was assigned to me.  On October 13, 2020, I held a telephone prehearing conference with the parties, the substance of which is summarized in an Order and Schedule for Filing Briefs and Documentary Evidence, dated October 14, 2021 (Briefing Order).

In accordance with the Briefing Order, the IG filed a motion to dismiss and an informal brief, accompanied by five exhibits (IG Exs. 1-5).  Petitioner filed an informal brief (P. Br.) and three exhibits (P. Exs. 1-3).  The IG filed a reply.  Although not contemplated in the Briefing Order, Petitioner filed a sur-reply.  Docket Entry #19 in DAB E-File.

The regulations governing these proceedings grant me virtually no discretion.  An aggrieved party must request a hearing within 60 days after receiving notice of the exclusion.  42 C.F.R. § 1001.2007(b).  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).  The regulations do not include a “good cause” exception for untimely filing; they provide that the administrative law judge 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, Civil Action No. 04-2279, 2008 WL 304899, at *3 (D.N.J. 2008).

The fifth day after May 30, 2016 (the date of the IG’s notice letter), was June 4, 2016, a Saturday.  In accordance with 42 C.F.R. §§ 1005.2(c) and 1005.12(a), I presume that Petitioner received the notice letter on Monday, June 6, 2016.  Petitioner’s hearing request was due no later than sixty days thereafter, i.e., by August 5, 2016.  42 C.F.R. § 1005.2(c).  She filed her hearing request more than five years after this deadline.

Petitioner may rebut the regulatory presumption by making a “reasonable showing” that she received the notice more than five days after the date of the notice.  Petitioner argues that she did not receive notice of the exclusion on or about the presumed date of receipt.  Rather, Petitioner states that she “was not aware of the exclusion until September 12, 2021, when it was brought to [her] attention by a prospective employer.”  P. Br. at 5 (Docket Entry #12 in DAB E-File).  Petitioner’s hearing request provides additional context.  In that document, Petitioner explains: 

I do not recall getting the notice as I was incarcerated at Danbury Federal Prison.  We often did not get our mail there even if we did sign for it – often the [correctional officers] signed for us.  But even if I was aware of it I did not have the capacity to file an appeal as I had no access to website or internet access.

Docket Entry #1 in DAB E-File.  I find that Petitioner’s unsworn assertions are insufficient to rebut the presumption of receipt.

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As I informed the parties in my Briefing Order, if witness testimony is necessary it must be offered as an affidavit or declaration under penalty of perjury.  Briefing Order ¶ 7.d.ii.  The Briefing Order specifically directed that “if Petitioner wishes me to consider facts of which she has knowledge related to when or how she received notice of the exclusion at issue, Petitioner must submit her written statement, in the form of an affidavit or signed and dated declaration made under penalty of perjury.”  Id. (footnote). However, Petitioner did not comply with this instruction.

Moreover, even if I were to construe Petitioner’s representations in her hearing request and brief as proffers of testimony, I would not conclude that she has proved that she did not receive the notice of exclusion on or about June 6, 2016.  Rather, Petitioner’s statements allow for the possibility that the notice was, in fact, delivered to the correctional facility where she was incarcerated, signed for by a correctional officer, and that she received it, although she no longer recalls having done so.  The inference that the notice letter was delivered to the correctional facility is further supported by the written testimony of the IG’s witness that the notice letter was not returned to the IG’s office as undeliverable.  IG Ex. 3 at ¶ 6.  I therefore find it more likely than not that Petitioner received the notice letter on or about June 6, 2016, consistent with the presumption codified at 42 C.F.R. § 1005.2(c).

Furthermore, as explained above, 42 C.F.R. § 1005.2(e)(1) does not permit me to accept a late filing, even upon a showing of good cause.  Accordingly, to the extent Petitioner is arguing that, even if she received the exclusion notice, she was unable to file her hearing request timely because she was incarcerated at the time, I am unable to consider whether Petitioner’s incarceration establishes good cause for her failure to file her hearing request timely.

Therefore, for the reasons explained above, I find that Petitioner did not file her hearing request within 60 days after receipt of the notice of exclusion.  I therefore dismiss Petitioner’s hearing request pursuant to 42 C.F.R. § 1005.2(e)(1). 

2. Even if I could consider the merits of Petitioner’s hearing request, I would find that Petitioner failed to establish the existence of any mitigating factor in support of her argument that the 10-year exclusion imposed by the IG is unreasonable.

In her hearing request, Petitioner acknowledges that the IG has a basis to exclude her for a minimum of five years pursuant to sections 1128(a)(1) and 1128(c)(3)(B) of the Social Security Act.  Docket Entry #1 in DAB E-File.  However, Petitioner objects to the 10‑year exclusion imposed by the IG as unreasonable.  Id.  In the following discussion, I explain that even if I could consider Petitioner’s arguments on the merits, I would conclude that the exclusion imposed by the IG falls within a reasonable range.

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a. The IG established an aggravating factor justifying exclusion for more than five years.

The regulations establish certain aggravating factors that the IG may consider to lengthen the period of exclusion beyond the five-year minimum for a mandatory exclusion.  42 C.F.R. § 1001.102(b).  In this case, the IG’s notice letter advised Petitioner of one aggravating factor that justified excluding her for more than five years.  IG Ex. 1 at 2.  The IG asserted that Petitioner’s criminal conviction resulted in a sentence of incarceration.  Id.; see also 42 C.F.R. § 1001.102(b)(5).  Petitioner does not deny that she was incarcerated.  Indeed, she offered as an exhibit the transcript of the proceeding in which the federal district court sentenced her to 36 months of incarceration.  P. Ex. 2 at 55; see also IG Ex. 5 at 3.  Therefore, the evidence of record establishes the presence of this aggravating factor.

b. Petitioner did not establish any mitigating factors recognized by the regulations.

Where the IG has properly exercised her discretion to increase the exclusionary period, as she has done here, I may only reduce that period after considering the specific mitigating factors found at 42 C.F.R. § 1001.102(c):

(1) [W]hether the individual or entity was convicted of three or fewer misdemeanor offenses and the entire amount of financial loss (both actual loss and intended loss) to Medicare or any other Federal, State, or local governmental health care program due to the acts that resulted in the conviction, and similar acts, is less than $5,000;
(2) The record in the criminal proceedings, including sentencing documents, demonstrates that the court determined that the individual had a mental, emotional or physical condition before or during the commission of the offense that reduced the individual’s culpability; or
(3) The individual’s or entity’s cooperation with Federal or State officials resulted in—

(i) Others being convicted or excluded from Medicare, Medicaid and all other Federal health care programs,
(ii) Additional cases being investigated or reports being issued by the appropriate law enforcement agency identifying program vulnerabilities or weaknesses, or
(iii) The imposition against anyone of a civil money penalty or assessment under part 1003 of this chapter. 

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Petitioner has the burden to prove by a preponderance of the evidence that there is a mitigating factor for me to consider.  42 C.F.R. § 1005.15(b)(1).

In her hearing request, Petitioner argues, among other things, that:

-  She is diagnosed with spinal stenosis and spondylosis, which she describes as “progressive degenerative diseases which affect mobility;”
-  The sentencing judge acknowledged that she “did not benefit financially from the crimes for which [she] was convicted;” and
-  The sentencing judge acknowledged that patients “did receive services that were billed” and “further acknowledged that [she] was convicted on ‘hearsay and circumstantial evidence.’”

Docket Entry #1 in DAB E-File.  None of Petitioner’s arguments establishes a mitigating factor recognized by the regulations.

Petitioner’s first argument may be intended to invoke the mitigating factor described at 42 C.F.R. § 1001.102(c)(2).  Petitioner offered evidence that she was treated while in prison for anxiety, depression, and lower back pain, among other issues.  P. Ex. 1 at 1.  In addition, the transcript of Petitioner’s sentencing hearing establishes that the district judge was aware that she had “medical problems” and that he imposed a “mental health treatment condition” as part of her sentence.  P. Ex. 2 at 53, 55, 56-57.  However, the fact that an individual has a documented medical condition is not sufficient to establish the mitigating factor.  Nothing in the sentencing transcript supports a conclusion that the district judge found that Petitioner’s physical or mental condition was present before or during the commission of the offense for which she was convicted or that any such condition reduced Petitioner’s culpability.  Without a finding that the condition (or conditions) reduced Petitioner’s culpability for the offense, there is no basis to apply the mitigating factor.

Petitioner’s argument that she did not benefit financially from her crimes may be intended to show that her crime caused financial losses of less than $5,000 to Medicare, within the meaning of 42 C.F.R. § 1001.102(c)(1).  However, the mitigating factor does not apply to Petitioner, because she was convicted of multiple felony offenses, rather than the three or fewer misdemeanor offenses referenced in the regulation.  See IG Ex. 5 at 1‑2.  Moreover, the sentencing transcript does not support Petitioner’s contention that she did not benefit financially from her crimes.  To the contrary, the district judge accepted the prosecutor’s argument that, at a minimum, Petitioner collected a generous salary for her participation in the illegal activities of the company that employed her.  See, e.g., P. Ex. 2 at 27-28, 52.

Petitioner’s final arguments – that she did not defraud Medicare because patients did receive services and that she was convicted based on hearsay and circumstantial

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evidence – appear intended to show that she should not have been convicted.  In legal terms, such arguments are referred to as “collateral attacks” on the conviction.  However, the regulations are clear that when appealing an exclusion, an excluded party may not collaterally attack the conviction or civil judgment underlying the exclusion:

When the exclusion is based on the existence of a criminal conviction or a civil judgment imposing liability by [a] Federal, State or local court, a determination by another Government agency, or any other prior determination where the facts were adjudicated and a final decision was made, the basis for the underlying conviction, civil judgment or determination is not reviewable and the individual or entity may not collaterally attack it either on substantive or procedural grounds in this appeal.

42 C.F.R. § 1001.2007(d).  Accordingly, whatever the merits of Petitioner’s arguments regarding the validity of her conviction, the regulations foreclose these arguments.

In summary, Petitioner has failed to allege or prove any mitigating factor that I could consider to reduce the period of her exclusion.  Thus, even if Petitioner had filed her hearing request timely and I could address the merits of her case, I would conclude that, based on one aggravating factor and no mitigating factors, the 10-year exclusion imposed by the IG falls within a reasonable range.

1. My findings of fact/conclusions of law appear as headings in bold italic type.
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