Brenda Lee Figueroa, DAB No. 3104 (2023)

DETERMINATION TO DECLINE REVIEW OF
ADMINISTRATIVE LAW JUDGE DECISION

After reviewing the record to evaluate the issues presented by Brenda Lee Figueroa (Petitioner) on appeal from the decision of the administrative law judge (ALJ) in Brenda Lee Figueroa, DAB CR6279 (2023) (ALJ Decision), we have determined that we need not render a separate decision. 

The ALJ Decision contained three substantive conclusions concerning the exclusion of Petitioner, a nurse practitioner, from all federal health care programs under section 1128(a)(3) of the Social Security Act (Act).  The ALJ concluded that the Inspector General (I.G.) had a valid basis for exclusion:  Petitioner’s 2021 felony conviction for health care fraud in violation of 18 U.S.C. § 1347.  ALJ Decision at 4-6.  The ALJ further concluded that Petitioner’s exclusion for the mandatory five-year minimum period under Section 1128(c)(3)(B) of the Act was reasonable as a matter of law, id. at 3, 6, and that the ALJ had no authority to modify the effective date of Petitioner’s period of exclusion, id. at 6-8. 

On appeal, Petitioner does not identify any factual or legal error by the ALJ and merely repeats arguments that the ALJ appropriately rejected.  Petitioner first argues that the Department of Labor already debarred Petitioner from all federal programs as of January 21, 2020.  Compare Request for Review (RR) at 2-3 with Informal Br. of P. to ALJ at 4-5.  Second, Petitioner asserts that the I.G.’s selection of an exclusion date beginning August 31, 2022 is arbitrary and capricious.  Compare RR at 3-6 with Informal Br. of P. to ALJ at 5-7.  Third, Petitioner objects that the exclusion date the I.G. selected has effectively excluded Petitioner from participating in any federal health care program for almost eight years.  Compare RR at 6 with Informal Br. of P. to ALJ at 7-8.

Petitioner’s arguments establish no error by the ALJ, under well-established legal standards.  “Neither an ALJ nor the Board may overturn a lawful mandatory exclusion, or reduce its required minimum duration, based on alleged mitigating factors.”  Kami L. Purvis, DAB No. 2990, at 7 (2020).  Also, “neither ALJs nor the Board have authority to review the timing of the I.G.’s determination to impose an exclusion or to change the

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start date of an exclusion to a date earlier than the date set by regulation.”  Vasan Deshikachar, DAB No. 3085, at 2 (2023) (citing cases).  See also Randall Dean Hopp, DAB No. 2166, at 3 (2008) (“[T]he Board has repeatedly held that the statute and regulations give an ALJ no authority to adjust the beginning date of an exclusion by applying it retroactively.”) (listing cases).

Accordingly, pursuant to 42 C.F.R. § 1005.21(g), we decline review of and summarily affirm the ALJ Decision.