SUBJECT:

Michele M. Midlick,

Petitioner,

The Inspector General

DECISION

I decide that Petitioner, Michele M. Midlick, did not file a timely request for hearing pursuant to 42 C.F.R. � 1005.2(c). Consequently, Petitioner has no right to a hearing, and Petitioner's hearing request is dismissed.

BACKGROUND

This case is before me pursuant to a request for hearing filed by Petitioner dated August 14, 2003.

By letter dated May 30, 2003, the Inspector General (I.G.) notified Petitioner that she was being excluded from participation in the Medicare, Medicaid, and all federal health care programs, as defined in section 1128B(f) of the Social Security Act (Act), for five years. The I.G. informed Petitioner that she was being excluded pursuant to section 1128(a)(3) of the Act, due to her conviction in the State of Ohio, of a criminal offense related to fraud, theft, embezzlement, breach of fiduciary responsibility, or other financial misconduct in connection with the delivery of a health care item or service, or any other act or omission in a health care program operated by any federal, State, or local government agency.

At a telephone conference held on October 31, 2003, I set a schedule for the parties to file briefs supported by documentary evidence as there were no issues requiring an in-person hearing. The I.G. submitted a memorandum of law (I.G. Br.) accompanied by six proposed exhibits (Exs.), filed on December 2, 2003. These were identified as I.G. Exs. 1-6, and admitted into the record without objection. Petitioner submitted a written submission in support of her contentions, with no accompanying exhibits, on January 6, 2004. The I.G. filed a reply brief on February 4, 2004, to which Petitioner responded on March 12, 2004. In a motion dated April 16, 2004, the I.G. requested leave to file a reply to Petitioner's March 12, 2004 submission. Based on the I.G.'s prior written submissions, I find it unnecessary for the I.G. to submit any further briefs.

The I.G. seeks dismissal of Petitioner's request for hearing due to untimely filing. In the alternative, the I.G. requests summary judgment on the merits.

After consideration of the written arguments and documentary evidence submitted by the parties, I grant the I.G.'s motion to dismiss. In doing so, I find that the hearing request was untimely filed. Therefore, it is not necessary to address the issues relative to the merits of the case.

APPLICABLE LAW AND REGULATIONS

Section 1128(a)(3) of the Act authorizes the Secretary of Health and Human Services (Secretary) to exclude from participation in Medicare, Medicaid, and all federal health care programs (as defined in section 1128B(f) of the Act) any individual convicted under federal or state law of a criminal offense relating to neglect or abuse of patients in connection with the delivery of a health care item or service.

Any exclusion under section 1128(a)(3) of the Act must be for a minimum period of five years. Act, section 1128(c)(3)(B); 42 C.F.R. � 1001.102(a).

Pursuant to 42 C.F.R. � 1001.2007, a person excluded under section 1128(a)(3) of the Act may file a request for hearing before an Administrative Law Judge (ALJ).

An ALJ may dismiss a request for hearing that is not filed within 60 days of receipt of the notice of exclusion. 42 C.F.R. �� 1005.2(c) and (e)(1).

DISCUSSION

In cases involving the Office of the Inspector General (OIG), a party is entitled to a hearing only if that party files its request for hearing within 60 days after receipt of the notice of exclusion. The date of receipt of the notice will be presumed to be five days after the date of such notice, unless there is a reasonable showing to the contrary. 42 C.F.R. � 1005.2(c).

1. Petitioner did not file a timely request for hearing.

The OIG sent Petitioner the notice of exclusion on May 30, 2003. I.G. Ex. 1. The regulatory presumption is that Petitioner received the notice not later than five days after May 30, 2003. See 42 C.F.R. �� 1005.2(c)and 1005.12. In her request for hearing, Petitioner stated that she received the exclusion letter in late June or early July 2003. However, in her written submission she did not expand upon this allegation.

Petitioner does not dispute that the notice of exclusion was sent as stated by the I.G., in the ordinary course of business to the correct address. Furthermore, Petitioner filed a request for hearing that was dated August 14, 2003, and received by the I.G. on August 28, 2003 ⁽¹⁾. In order to be timely, Petitioner's request should have been received no later than August 3, 2003. Consequently, I find that Petitioner did not file a timely request for hearing.

2. Petitioner has failed to make a reasonable showing to rebut the presumption that she received the letter of exclusion within five days of its mailing.

The regulation at 42 C.F.R. � 1005.2(c) provides that the date of receipt of the notice of exclusion will be presumed to be five days after the date of such notice unless there is a reasonable showing to the contrary. Thus, the presumption is rebuttable. Petitioner alleges that she received the notice of exclusion in late June or early July 2003. This bare allegation without any supporting proof is not sufficient to overcome the regulatory presumption that she received the notice of exclusion five days after May 30, 2003. The regulation is clear in establishing that the date of receipt of the notice of exclusion will be presumed to be five days after the date of such notice, unless there is a reasonable showing to the contrary. The presumption favors the sender. The burden of coming forward with a reasonable showing to rebut that presumption rests with the intended recipient. Robert Cole, DAB CR917, at 4 (2002).

CONCLUSION

I conclude that Petitioner did not timely file a request for hearing, and, therefore, is not entitled to a hearing. The regulations provide that an ALJ will dismiss a request for hearing where the request is not filed timely. 42 C.F.R. � 1005.2(e)(1). Consequently, I dismiss Petitioner's request for hearing.

José A. Anglada

Administrative Law Judge

1. The I.G. alleges that Petitioner ignored the instructions to file her request for hearing with the Departmental Appeals Board, and instead sent a letter to the I.G. For purposes of resolving the issue of timeliness, I will deem August 28, 2003, as the filing date of the request for hearing.