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                              Christina Paylan, M.D., DAB No. 3112 (2023)
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Christina Paylan, M.D., DAB No. 3112 (2023)








  
  
    

  
      
Department of Health and Human Services 
    DEPARTMENTAL APPEALS BOARD
          Appellate Division





Christina Paylan, M.D.
Docket No. A-23-32Decision No. 3112October 3, 2023

        
              
    

      FINAL DECISION ON REVIEW OF ADMINISTRATIVE LAW JUDGE DISMISSAL

Christina Paylan, M.D. (Petitioner) filed an appeal of the ruling of the administrative law judge (ALJ), *Christina Paylan*, *M.D.*, Dismissal, ALJ Ruling No. 2023-6 (March 31, 2023) (Dismissal).  The ALJ dismissed Petitioner’s request for hearing as untimely filed, in accordance with 42 C.F.R. § 498.70(c) (“[T]he ALJ may dismiss a hearing request . . . [when] [t]he affected party did not file a hearing request timely and the time for filing has not been extended.”).  For the reasons explained below, we affirm the Dismissal.

Legal Background

Unlike Medicare Parts A and B, there is no enrollment requirement under Medicare Part C (Medicare Advantage) or Medicare Part D (Voluntary Medicare Prescription Drug Benefit).  Instead, effective January 1, 2019, the Centers for Medicare and Medicaid Services (CMS) implemented a “preclusion list” applicable to Parts C and D as part of its effort to “prevent fraud, waste, and abuse, and to protect Medicare enrollees.”  *See* 82 Fed. Reg. 56,336, 56,448 (Nov. 28, 2017); 83 Fed. Reg. 16,440, 16,643 (Apr. 16, 2018).1  An individual or entity placed on the preclusion list is prohibited from receiving reimbursement for health care items, services, or drugs provided under Medicare Part C (42 C.F.R. § 422.222) and from receiving reimbursement for drugs prescribed under Medicare Part D (42 C.F.R. § 423.120(c)(6)).  CMS may place an individual on the preclusion list for three reasons, including when the individual or entity, regardless of whether they are or were enrolled in Medicare, “has been convicted of a felony under Federal or State law within the previous 10 years that CMS deems detrimental to the best interests of the Medicare program.”  *See* 42 C.F.R. §§ 422.2 (Part C), 423.100 (Part D).

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An individual placed on the preclusion list may appeal that determination in accordance with Part 498.  *See* 42 C.F.R. §§ 422.222(a)(2)(i); 423.120(c)(6)(v)(A).  The decision to place an individual on the preclusion list is an initial determination.  *Id*. § 498.3(b)(20).  Like provider/supplier enrollment appeals, the first step in the appeal process is to request reconsideration of the initial determination.  *Id*. §§ 498.5(n)(1), 498.22.  If dissatisfied with the reconsidered determination, the individual may request an ALJ hearing.  *Id*. §§ 498.5(n)(2), 498.40.  A party dissatisfied with an ALJ’s decision may seek Board review.  *Id*. §§ 498.5(n)(3), 498.80.

A request for hearing before an ALJ must be filed within 60 days of receipt of the notice of initial, reconsidered, or revised determination.  42 C.F.R. § 498.40(a)(2).  The date of receipt is presumed to be five days after the date on the notice, absent a showing it was received earlier or later.  *Id*.§ 498.22(b)(3).  If the request for hearing is not filed within 60 days, an ALJ may extend the filing deadline for “good cause shown.”  *Id*. § 498.40(c).  An ALJ may exercise discretion to deny a request to extend the filing deadline if good cause is not shown.  *See West Side House LTC Facility*, DAB No. 2791, at 6 (2017).  An ALJ may dismiss a request for hearing, on the ALJ’s own motion or the motion of a party, if the request was untimely and the ALJ has not extended the time for filing.  42 C.F.R. § 498.70(c).  A party may request Board review of the dismissal within 60 days from receipt of the dismissal.  *Id*. §§ 498.80, 498.82(a).

Case Background2

Petitioner, Christina Paylan, M.D., was a physician, practicing in Florida.  CMS notified Petitioner by letter dated August 10, 2022, of placement on the Preclusion List because of a felony conviction within the previous 10 years, that CMS deemed detrimental to the best interests of the Medicare program.  *See* CMS Ex. 3, at 1.  Specifically, on August 22, 2014, Petitioner was convicted of a felony in the Circuit Court in and for Hillsborough County, Florida for “obtaining [a] controlled substance by fraud in violation of Florida Statutes § 893.13(7)(a)(9), and fraudulent use of personal information in violation of Florida Statutes § 817.568(2)(a).”  *Id*.  Petitioner sought reconsideration of placement on the CMS Preclusion List, asserting the conviction had been vacated and alleged that this action was only being taken as a result of misconduct on the part of a Louisiana prosecutor.  CMS Ex. 4, at 1.

On December 15, 2022, CMS sent Petitioner, via email (delivery and read receipt), as well as via U.S. postal mail, an unfavorable reconsidered determination upholding Petitioner’s placement on the CMS Preclusion List.  CMS Ex. 1, at 1-7; CMS Ex. 2, at 1.  The reconsidered determination acknowledged Petitioner’s claim that the August 22,

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2014, conviction had been vacated but noted that Petitioner submitted no such documentation as part of the reconsideration request.  CMS Ex. 1, at 4.  Furthermore, CMS cited 42 C.F.R. § 1001.2, implementing the definition of “conviction” under section 1128(i) of the Social Security Act, that indicates “the definition of conviction includes when a judgement of conviction has been entered against an individual or entity by a Federal, State, or local court, regardless of whether the judgment of conviction or other record relating [to] the criminal conduct has been expunged or otherwise removed.”  *Id*.  CMS concluded that “it has been established, and [Petitioner] has not disputed, that she was convicted of felony offenses on August 22, 2014.”  *Id*.

Petitioner filed a Request for ALJ Hearing on February 21, 2023.

The ALJ Proceedings and Dismissal

Before the ALJ, Petitioner asserted that the Notice of Preclusion was received on December 22, 2022.  Request for Hearing at 1 (¶1).  Petitioner asserted that a United States Supreme Court decision issued in June of 2022 makes Petitioner’s conviction “null and void.”3   *Id*. at 1-2 (¶2(a)-(e)).  Additionally, Petitioner asserted the conviction is not finalized as it is “proceeding through postconviction relief.”  *Id*. at 2 (¶2(f)).  Finally, Petitioner challenged the lapse of time in CMS taking the Preclusion action, asserting the doctrine of laches.  *Id*. at 4 (¶5).

CMS filed a motion to dismiss, asserting that Petitioner’s request for hearing was not timely filed within 60 days of the day Petitioner received notice of the reconsidered determination.  CMS Motion to Dismiss at 1.  CMS asserted the unfavorable reconsidered determination informed Petitioner that a request for ALJ review must be filed within 60 calendar days after the receipt of the decision, but Petitioner’s request was filed 68 days after receipt of the reconsidered decision.  *Id*. at 3.

Petitioner’s response to the Motion to Dismiss acknowledged the “read” receipt for the emailed reconsidered determination but asserted that “this email does not show any evidence that there was an attachment that was the decision letter.”  P. Response at 1 (¶2).  Petitioner also asserted that she was “not the one who clicked on the email that was sent on December 15, 2022” and attributed that action to a staffer who “did not relay a message about the email to [Petitioner] or print out any document to provide to [Petitioner].”  *Id*. at 2 (¶4, 6).  Finally, Petitioner asserted receiving the decision letter by “regular mail” on December 22, 2022, “the day before shutting down the office for Christmas.”  *Id.* (¶7).

Page 4

On March 31, 2023, the ALJ granted the Motion to Dismiss pursuant to 42 C.F.R. § 498.70(c).  *See* Dismissal.  The ALJ agreed that the hearing request was untimely and found that Petitioner had not shown good cause for the ALJ to extend the time for filing.  *Id*. at 1.  The ALJ found sending the notice of the unfavorable reconsidered determination by email to be a valid method of service.  *Id*. at 4.4   The ALJ further determined that while Petitioner did not challenge CMS’s practice of serving notice by email, but rather argued that the “read receipt” did not establish that the decision letter was attached, this argument was refuted by the notice email, which stated, “Please find the attached Medicare Provider Enrollment Appeal Decision for [Petitioner]” and included an attachment titled “[Petitioner] Final Decision.”  *Id.* (citing CMS Ex. 5).  Finally, the ALJ found Petitioner’s argument that staff members’ alleged failure to alert Petitioner to the email had no bearing on the fact that the date the notice arrived at Petitioner’s office is the date of receipt.  *Id*. at 5 (citing *Day Op of North Nassau, Inc*., DAB No. 2818, at 6 (2017)).  Ultimately, the ALJ found that Petitioner did not allege good cause to justify extending the period for appeal.  *Id*.

Board Proceedings and Summary of the Parties’ Arguments

Petitioner did not ask the ALJ to vacate the dismissal in accordance with 42 C.F.R. § 498.72 but chose to appeal the dismissal to the Board.  Petitioner initially submitted an identical copy of the “Request for Hearing” document submitted to the ALJ to the Board on March 31, 2023.  The Board’s April 10, 2023, acknowledgement of the request for review informed Petitioner that:

A notice of appeal of an ALJ’s dismissal to the Board must meet certain content requirements.  In accordance with 42 C.F.R. § 498.82(b), “[a] request for review of an ALJ decision or dismissal must specify the issues, the findings of facts or conclusions of law with which the party disagrees, and the basis for contending that the findings and conclusions are incorrect.”  This means that an appellant, such as Petitioner here, must specify what in an ALJ’s dismissal the appellant disagrees with and explain why the appellant believes the ALJ erred or abused the ALJ’s discretion in dismissing a request for hearing.  We note that Petitioner filed the request for review on March 31, 2023, before the appeal deadline, which is May 30, 2023.  Accordingly, we will allow Petitioner an opportunity to

Page 5

supplement the March 31, 2023 request for review with a brief or statement that is responsive to the question of whether the ALJ’s dismissal should be upheld and which comports with the content requirements of section 498.82(b).  Any such submission must be uploaded to DAB E-FILE on or before May 30, 2023.

Acknowledgement of Appeal at 1-2 (bold and underline omitted).  Petitioner did not submit any supplemental filings to the Board prior to the deadline.  On June 20, 2023, CMS filed its response to Petitioner’s original Notice of Appeal, asserting that Petitioner did not allege any error or articulate any disagreement with the ALJ’s ruling.  CMS Resp. Br. at 1.  On June 21, 2023, Petitioner requested to file a Brief Statement of Appeal.  P. Req. to File Br. at 1.  In support of this request, Petitioner claimed no email notification from the DAB e-filing system regarding the Board’s acknowledgment letter with the deadline to submit any supplemental matters for review was ever received, and only after receiving email notice of CMS’s response Petitioner checked the DAB E-File system and discovered the April 10, 2023 filing from the Board.  *Id*. at 2 (¶4).  The Board granted Petitioner until July 5, 2023 to submit matters, including a reply to CMS’s Brief.  Ruling on EOT, dated June 22, 2023, at 2.

On July 4, 2023, Petitioner filed both a Brief Statement of Appeal (to which we cite as “P. Br.”) and a Reply to CMS’s Response Brief (P. Reply Br.).  *See* P. Br. and P. Reply Br.  Petitioner again asserts that there was no proof that the December 15, 2022 reconsidered determination was attached to the email dated the same day, and the ALJ’s decision relying on December 15th as the start date for 60-day clock to request an ALJ hearing was “speculative” in light of the fact that the “read receipt” (CMS Ex. 2, P. Ex. 2) does not indicate that “any attachment to the email was included or opened.”  P. Br. at 1 (¶1), 4-5.  Additionally, Petitioner asserts that the ALJ decision constituted an abuse of discretion for failing “to consider the timely response submitted by Petitioner to the second method of delivery of the decision letter by US Mail” on December 22, 2022, and in so doing, the ALJ’s determination that the operative date for the determination of timeliness was December 15, 2022, not December 22, 2022, was arbitrary and capricious because the “ALJ arbitrarily favor[ed] the electronic transmission over US Mail . . . and there is no precedence****[sic] that electronic mail is the [one] that controls over the method of delivery by US Mail.”  *Id*. at 1 (¶2), 5, 7.  Finally, Petitioner again asserts that good cause for the alleged untimeliness was established because a campaign staff member clicked on the email but failed to relay the email to Petitioner, and Petitioner’s affidavit, along with that of her campaign manager, indicated that the reconsidered determination was received in the mail on December 22, 2022.  *Id*. at 7.5

Page 6

CMS replied to the arguments Petitioner raised in the supplemental filings, asserting that the ALJ properly exercised discretion to dismiss Petitioner’s hearing request.  CMS Sur-reply at 1.  Specifically, CMS refuted Petitioner’s argument that the ALJ did not find that the December 15, 2022 email’s attachment contained the reconsidered determination.  *Id*. at 2-3 (citing ALJ Decision at 4).  CMS further argued that the ALJ’s finding that Petitioner did not establish good cause was not an abuse of discretion because the failure to timely file was not due to circumstances beyond Petitioner’s control.  *Id*. at 4-6.   Finally, CMS argues that Petitioner’s contention before the Board “that ‘a mere seven (7) days’ is not long enough to warrant dismissal for untimeliness” is irrelevant and was not raised to the ALJ, therefore the Board should therefore not consider the issue.  *Id*. at 6 (citing P. Br. at 6).

Standard of Review

In cases proceeding under 42 C.F.R. Part 498, such as this one, the Board’s standard of review on a disputed factual issue is whether the ALJ decision is supported by substantial evidence; the standard of review on a disputed issue of law is whether the ALJ’s decision is erroneous.  *Duke Ahn, M.D.*, DAB No. 3093, at 7 (2023); *see also* *Guidelines – Appellate Review of Decisions of Administrative Law Judges Affecting a Provider’s or Supplier’s Enrollment in the Medicare Program (Guidelines)*, accessible at https://www.hhs.gov/about/agencies/dab/different-appeals-at-dab/appeals-to-board/guidelines/enrollment/index.html?language=en.

The Board reviews an ALJ’s “good cause” determination under 42 C.F.R. § 498.40(c)(2) for abuse of discretion.  *New Grove Manor,*DAB No. 3090, at 6 (2023)*; Waterfront Terrace, Inc.*, DAB No. 2320, at 5 (2010).  “The standard of review for an ALJ’s exercise of discretion to dismiss a hearing request where such dismissal is committed by regulation to the discretion of the ALJ is whether the discretion has been abused.”  *High Tech Home Health, Inc.*, DAB No. 2105, at 8 (2007), *aff’d*, Civ. No. 9:07-80940 (S.D. Fla. Aug. 15, 2008).

Analysis

We address whether the ALJ’s determinations that Petitioner’s request for hearing was untimely and that Petitioner did not establish “good cause shown,” and dismissal of Petitioner’s request for hearing were an abuse of discretion conferred by section 498.70(c).  We find no abuse of discretion and uphold the ALJ Dismissal.  We need not address Petitioner’s assertion that a request for hearing allegedly filed only seven days late is not long enough to warrant dismissal for untimeliness.  P. Br. at 6.  Petitioner could have raised this argument before the ALJ but did not do so.  *See Guidelines*, “Completion of the Review Process,” ¶ (a) (“The Board will not consider . . . issues which could have been presented to the ALJ but were not.”).

Page 7

While Petitioner does not dispute receipt of the December 15, 2022 CMS email, or dispute that there is an attachment contained within the email, Petitioner again disputes that the email contained the reconsidered determination, contends that “[CMS] never produced the actual December 15, 2022 decision letter *as part of the email method of delivery* dated December 15, 2022”; that the title of the attached document does not reflect that the document is dated December 15, 2022; and now also asserts that the “read receipt” has no indication that any attachment to the email was included or opened.  P. Br. at 4-5.  Accordingly, Petitioner continues to assert that the determinative date for “receipt” of the reconsidered determination was December 22, 2022, when Petitioner alleges it was received via U.S. postal mail.

Generally speaking, the regulations in 42 C.F.R. Part 498 contemplate notice by mail.  *See* *Riverview Village*, DAB No. 1840, at 8 (2002).  However, the Board has recognized the validity of CMS notice by means other than mail where the method of notice used was capable of accomplishing the essential due process purpose of notice and in fact accomplished notice.  *New Grove Manor* at 6 n.6 (citing *Fairway Med. Clinic & Shadow Creek Med. Clinic*, DAB No. 2811, at 8-9 (2017) (“While the word ‘mails’ as used in [42 C.F.R. § ] 498.20(a) may be interpreted as intended to refer to U.S. postal mail, we do not conclude that the term can only refer to U.S. government postal mail, to the exclusion of all other means of notice.”), *aff’d sub nom*. *Murtaza Mussaji, D.O., P.A. v. United States Dep’t of Health & Human Servs.,*741 F. App’x. 222 (5th Cir. July 23, 2018).  Petitioner argues that there is no precedent that establishes that email delivery “supersedes and/or is superior to” delivery via U.S. postal mail to allow for a determination that a request for review was untimely.  P. Br. at 10.  Petitioner’s argument is inapt.  The ALJ made no mention of “superseding” or “superiority” of email over U.S. postal mail.  The simple fact is that the evidence established that the email sent to Petitioner on December 15, 2022, with the reconsidered determination attached, was received by Petitioner on that date.  The fact that Petitioner received a second copy of the document on a later date by U.S. postal mail does not nullify the earlier email receipt.  The ALJ correctly noted:

The date that the notice arrived at Petitioner’s office is the date of receipt.  That Petitioner’s employees neglected to advise Petitioner that the notice arrived does not change that.  *Day Op of North Nassau, Inc.*, DAB No. 2818 (2017).  Petitioner bears full responsibility for the actions (or inaction) of her staff.  Quoting with approval an ALJ’s analysis, the Board has explained that a petitioner cannot excuse [her] failure to file a hearing request timely on the ground that [her agent] failed to act appropriately.  For purposes of interacting with Medicare, [the employee] was Petitioner and whatever [the employee] did bore Petitioner’s imprimatur.  *Id*. at 6; *see* Act § 1128A(*l*) (providing that “[a] principal is liable . . . *for the actions of the principal’s agent acting within the scope of the agency*.”) (emphasis added).

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Dismissal at 5.

The Board has never attempted to provide an authoritative or complete definition of the term “good cause,” as stated in section 498.40(c).  *New Grove Manor*at 11 (citations omitted).  It is a decision that is committed to the ALJ’s broad discretion on a case-by-case basis.  *Id.*(citing *Waterfront Terrace, Inc.*, DAB No. 2320, at 5).  Petitioner’s reasons for failing to timely submit a request for hearing would not justify extending the filing deadline under any reasonable definition of “good cause.”  *Id.*(citing *Brookside Rehab. & Care Ctr.*, DAB No. 2094, at 7, n.7 (2007).  The ALJ’s decision to dismiss the late request for hearing was well within the bounds of discretionary power under section 498.70(c), which states that the ALJ “may dismiss a hearing request” where “[t]he affected party did not file a hearing request timely and the time for filing has not been extended.”

Conclusion

We affirm the Dismissal.

Endnotes

1   The reasons for creating the preclusion list instead of requiring enrollment under Medicare Parts C and D are discussed in 83 Fed. Reg. at 16,639-45.

2   The factual information in this section is drawn from the Dismissal and the record and is not intended to replace, modify, or supplement the ALJ’s findings of fact or conclusions of law.

3  *Ruan v. United States*, 142 S. Ct. 2370 (2022).

4   The ALJ cited *Fairway Med. Clinic & Shadow Creek Med. Clinic*, DAB No. 2811, at 9 (2017), *aff’d sub nom. Murtaza Mussaji, D.O., P.A. v. United States Dep’t of Health & Human Servs.*, 741 F. App’x 222 (5th Cir. July 23, 2018), and *Ishtiaq A. Malik, M.D.*, DAB No. 2962, at 7-8 (2019),*aff’d*, No. 1:20-cv-00091 (RDA/TCB), 2022 WL 1785240 (E.D. Va. June 1, 2022), *aff’d*, No. 22-1706, 2023 WL 4787442 (4th Cir. July 27, 2023) (finding that Petitioner received notice of their Medicare exclusion when the Inspector General emailed the notice to their attorney).

5   Petitioner also asserts that Florida Statute § 11.111 relieves elected officials from deadlines for court filings during legislative session.  P. Br. at 8.  This statute has no application in this case as it only applies to “[a]ny proceeding before any court, municipality, or agency of government of this state” and only provides relief to members of the Florida Legislature, not candidates for office.  Fla. Stat. § 11.111 (2022); P. Br. at 8 n.3.
  
          /s/
        Constance B. Tobias

                      Board Member
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        Susan S. Yim

                      Board Member
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