SUBJECT:

Scott B. Lindsay

Petitioner,

The Inspector General

Petitioner's request for hearing is dismissed for lack of jurisdiction.

I. Procedural History

Petitioner was notified by letter, dated October 2, 2001, that he was overpaid Medicare payments totaling $67,321.38 during the period January 16, 1998 through January 15, 1999. Inspector General Exhibit (I.G. Ex.) 7. The notice explained that the overpayment occurred because, during the specified period, Petitioner was excluded from participation in the Medicare program but he nevertheless claimed, and received, reimbursement for services he rendered. Id.

Petitioner requested information regarding the hearing process in a letter dated May 29, 2002. The letter was treated as a request for hearing, docketed with case number C-02-693, and assigned to me for hearing and decision on August 12, 2002. A telephonic prehearing conference was conducted on October 16, 2002, the substance of which is memorialized in my Order of October 17, 2002. The I.G. took the position that Petitioner has no right to a hearing and that I lack jurisdiction. Thus, the I.G. desired an opportunity to file a motion to dismiss. A briefing schedule was adopted.

The I.G. filed her motion to dismiss with supporting brief and exhibits 1 through 15 on December 6, 2002. Petitioner filed an undated, one-page response that was received at the Civil Remedies Division, Departmental Appeals Board (CRD, DAB) on January 21, 2003. No reply brief has been received from the I.G. Petitioner makes no objection to any of the exhibits offered by the I.G. and they are admitted.

II. Discussion

A. Issues

The issue before me is whether Petitioner has a right to a hearing.

B. Analysis

In his May 29, 2002 request for hearing, Petitioner acknowledged that he received a "request from Medicare to refund money" he received for services during a time when he was "under sanctions." It is clear that Petitioner refers to the October 2, 2001 notice from the Health Care Finance Administration's (HCFA) ⁽¹⁾ contract carrier. I.G. Ex. 7. The "sanction" referred to by Petitioner was his exclusion from participation in Medicare, Medicaid and all federal health care programs. Petitioner asserted in his request for hearing that he never received notice that he was "under sanction" and, for that reason, he should not be required to repay the overpayment.

Petitioner argues in his response to the I.G. motion to dismiss that: (1) he only waived his rights to appeal with respect to reinstatement of his exclusion and not any general right to due process or equal protection; (2) he does not dispute that his exclusion was reinstated at some point, but rather, that he had no knowledge of the reinstatement because he never received the I.G. notice in 1998; and (3) that the Medicare contract carrier should have been notified of the exclusion and prevented the overpayment, and that the I.G.'s action contributed to the overpayment. Petitioner also notes that he has no ability to repay the overpayment. Petitioner's Response (P. Resp.) (undated letter received January 21, 2003).

The history of this matter is revealed by the I.G.'s exhibits. Petitioner was notified by letter dated June 27, 1994 that he was being excluded from participation in Medicare, Medicaid, and all federal health care programs, pursuant to sections 1128(b)(14) and 1892 of the Social Security Act (Act) (42 U.S.C. �� 1320a-7(b)(14) and 1395ccc), for failure to repay or to arrange to repay his Health Education Assistance Loan (HEAL). I.G. Ex. 1. Petitioner filed a request for a hearing which was docketed as C-94-398 and assigned to Judge Joseph Riotto on or about July 29, 1994. I.G. Exs. 2, 3. On November 1, 1994, Petitioner signed a settlement agreement that resolved a collection action against him in the U.S. District Court, Northern District of Ohio, and pursuant to which he requested to withdraw the request for hearing pending before Judge Riotto. I.G. Ex. 4. On November 14, 1994, Judge Riotto dismissed C-94-398 upon Petitioner's withdrawal of his request for hearing pursuant to the terms of his settlement agreement. ⁽²⁾ I.G. Ex. 5. Pursuant to the terms of his settlement agreement, which amounted to an agreement to repay his HEAL, the "effect of Petitioner's exclusion" was stayed effective November 10, 1994. The effect of the stay was that Petitioner, though excluded, could continue to file for and receive payment for covered services under Medicare. I.G. Ex. 4, at 2, para. 7; I.G. Ex. 8.

Petitioner does not dispute that he stopped making payments on his HEAL, in violation of the terms of his settlement agreement. I.G. Exs. 9, 10. The I.G. asserts that Petitioner was notified that he was in default and that the stay of his exclusion was lifted by letter dated January 30, 1998. I.G. Ex. 6. Petitioner denies having received the letter from the I.G. dated January 30, 1998, and the failure to receive this notice seems to be the crux of his argument. ⁽³⁾ By letter dated August 17, 1999, the I.G. was advised that the Department of Justice had declared Petitioner's HEAL debt uncollectible and that it had been written-off, removing the grounds for Petitioner's exclusion and making him eligible for reinstatement to Medicare and Medicaid. I.G. Ex. 10. Petitioner was reinstated effective August 21, 2002. I.G. Ex. 11.

The parties do not acknowledge in their pleadings the true nature of Petitioner's request for hearing that is currently before me. Petitioner was notified by letter dated October 2, 2001 from the CMS contract carrier, Nationwide Insurance, that he had been overpaid $67,321.38 in Medicare payments during the period January 16, 1998 through January 15, 1999. I.G. Ex. 7. The October 2, 2001 notice clearly advised Petitioner that if he wished to appeal the overpayment determination, he needed to submit a written request for a hearing to "Nationwide Mutual Insurance Company" within "6 months" of the October 2, 2001 decision.

Petitioner's request for hearing dated May 29, 2002, clearly disputes his obligation to refund the alleged overpayment. Petitioner raises as a defense that he did not know he was excluded and not eligible to receive payments during the period for which the overpayment is alleged.

Therefore, this case clearly involves a request for hearing to challenge an alleged overpayment of Medicare benefits to a provider. The parties have pointed to no authority that gives me jurisdiction to hear such appeals. In fact, such appeals are subject to the provisions of 42 C.F.R. Part 405, and while the appeal procedure set forth therein ultimately provides for a hearing by an administrative law judge (ALJ), the appeals are not heard by ALJs assigned to the CRD.

This case is fundamentally different from the situation in Sharon R. Anderson, D.P.M., DAB No. 1795 (2001). In Anderson, an appellate panel of the DAB (Board) affirmed Judge Montano's dismissal of the petitioner Anderson's request for a hearing for lack of jurisdiction, i.e., petitioner had no right to a hearing. The significant factual difference between Anderson and this case is that Anderson's request for hearing was triggered by an I.G. notice that the stay on the effect of a previously-imposed exclusion was being lifted. The Board agreed with Judge Montano that the petitioner had the opportunity to appeal the exclusion when it was imposed, and that lifting the stay of the effect of the exclusion did not trigger a new right to a hearing. The petitioner in Anderson did not request an appeal based on an allegation of an overpayment, which is the case before me. This distinction is important because I am not concluding the Petitioner in this case has no right to request a hearing to challenge the overpayment; he simply has no right to a hearing before an ALJ of the DAB on the overpayment. ⁽⁴⁾

I do note that in this case, Petitioner exercised his right to a hearing to challenge the exclusion the I.G. imposed in 1994. Petitioner negotiated and signed a settlement agreement that ended a debt-collection action against him in federal district court. Pursuant to the settlement agreement, he withdrew his 1994 request for hearing, thus waiving any further appeal on the exclusion action. Petitioner does not dispute that the settlement agreement he signed also clearly provides:

8. Default on Agreement. Should default occur the debtor waives all procedural rights including but not limited to notice, hearing, appeal and administrative and judicial review, with respect to the immediate reinstatement of the exclusion . . . .

I.G. Ex. 4, at 2. This language is significant to me, for even if some right to hearing to challenge the lifting of a stay could be found contrary to the decision in Anderson, Petitioner clearly waived any such right to notice, appeal, and review of the immediate reinstatement of the effect of his exclusion. The settlement agreement recites that it was voluntarily entered by Petitioner, and Petitioner has not raised any argument before me that the agreement was void or voidable for lack of consideration, breach by the government, or any other cause. Accordingly, I conclude that Petitioner should be bound by his agreement and the waiver of notice and appeal of reinstatement of the effects of Petitioner's exclusion is valid and binding upon Petitioner and, for this reason, I am also without jurisdiction. ⁽⁵⁾

Petitioner raised an "equitable estoppel" argument that he should not be held liable for the overpayment because CMS and its agent should not have continued paying him during the period in issue if he was excluded. This is also an issue that must be addressed by one with jurisdiction to decide the validity of Petitioner's defenses to the alleged overpayment. I note however, that the Board also addressed this issue in Anderson finding that there was no affirmative misconduct by the government which might overcome the well established proposition that "equitable estoppel" will generally not lie against the federal government. In this case, it is difficult for Petitioner to credibly allege that he did not realize he stopped making monthly payments of at least $400.00 under the terms of the settlement, thus violating or defaulting on the agreement and triggering the automatic reinstatement of the effect of his exclusion. I.G. Ex. 4, at 1-2.

III. Conclusion

For the foregoing reasons, Petitioner's request for a hearing is dismissed.

Keith W. Sickendick
Administrative Law Judge

1. Effective July 5, 2001, the Health Care Finance Administration (HCFA) was renamed the Centers for Medicare and Medicaid Services (CMS). 66 Fed. Reg. 35437.

2. Administrative law judges are not involved in reviewing, approving, or enforcing settlement agreements in I.G. cases. 42 C.F.R. � 1005.4(c). A petitioner's withdrawal of a request for hearing is a proper grounds for dismissal. 42 C.F.R. � 1005.2(e)(2).

3. The government can generally rely on some presumptions that have been created by regulation or case law including: (1) regularity in the conduct of government affairs (procedures such as notice and mailing are followed); (2) addressed letters deposited in the mail and not returned by the postal service are delivered; and (3) mail is received within five days of being deposited in a proper receptacle. Presumptions are subject to being rebutted. In this case, absent specific challenge to the credibility of Petitioner and his assertion that he did not receive the letter and to give Petitioner maximum benefit of the doubt, I will accept his assertion as sufficient to rebut the presumptions in this case. Therefore, I conclude that Petitioner did not receive the I.G. letter dated January 30, 1998, for purposes of this decision.

4. It is important to note that I do not suggest that any request for hearing Petitioner might file in another forum will not be subject to challenges based on timeliness and the merits of his asserted defenses.

5. Of course, whether or not lack of notice of the lifting of the stay of exclusion is a valid defense to an overpayment or grounds for forgiveness of the debt must be left to one with authority to make that decision.