SUBJECT:

Bruce Franken, R. Ph.,

Petitioner,

The Inspector General

DECISION

Bruce Franken, R.Ph. (Petitioner), filed a request for hearing to appeal the decision of the Inspector General (I.G.) excluding him from participation in the Medicare, Medicaid, and all federal health care programs for a minimum period of 10 years under section 1128(a)(3) of the Social Security Act (Act). The I.G. has moved to dismiss Petitioner's request for hearing as untimely. ⁽¹⁾ For the reasons set forth below, I find that Petitioner's hearing request was untimely filed. Therefore, I grant the I.G.'s motion and dismiss Petitioner's hearing request.

In a letter dated August 30, 2003 (notice letter), the I.G. advised Petitioner of his exclusion from the Medicare, Medicaid, and all federal health care programs because of his conviction of criminal offenses 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 act or omission in a health care program operated or financed by any federal, state, or local government agency (Act, section 1128(a)(3)). The notice letter indicates:

A detailed explanation of the authority for this exclusion, its effect, and your appeal rights is enclosed and is incorporated as part of this notice by specific reference. You should read this document carefully, act upon it as necessary, and retain it for future reference.

I.G. Exhibit (Ex.) 3, at 1. The attachment to the letter specifies that:

You may request a hearing before an administrative law judge in accordance with 42 CFR 1001.2007. Such a request must be made in writing within 60 days of your receiving the OIG's letter of exclusion . . .

Id. at 2.

Petitioner admits that he received this letter timely, forwarded it to his attorney for "purposes of appeal" (Petitioner's June 24, 2004 Brief (P. Br.) at 4), and only found out after the time for requesting a hearing had passed that his attorney had not submitted a hearing request (assertedly due to Petitioner's failure to meet his financial obligations to the attorney). Id. at 2, 4; Petitioner's March 2, 2004 letter asking that he be granted the opportunity to file a late hearing request.

Petitioner's letter to the Civil Remedies Division requesting a late filing was submitted on March 2, 2004, approximately six months after the I.G.'s August 30, 2004 letter notifying Petitioner of his exclusion. I.G. Ex. 2. Petitioner's letter was treated for docketing purposes as a request for hearing.

1. Petitioner's request for a hearing was filed untimely.

2. I must dismiss Petitioner's request for a hearing. 42 C.F.R. � 1005.2(e)(1).

Discussion

Under the regulations governing hearings before administrative law judges, Petitioner is presumed to have received the exclusion notice "5 days after the date of such notice unless there is a reasonable showing to the contrary." 42 C.F.R. � 1005.2(c). Although Petitioner has not specifically admitted receipt within five days of August 30, 2003, he has made no "reasonable showing to the contrary." Petitioner admits receiving the notice letter, and then promptly forwarding it to his attorney. P. Br. at 4. I therefore accept the regulatory presumption and find that Petitioner received the notice by September 4, 2003.

To be entitled to a hearing, Petitioner must file a written hearing request "within 60 days after the notice . . . is received by the petitioner. . ." 42 C.F.R. � 1005.2(c). An ALJ will dismiss a hearing request that is not filed in a timely manner. 42 C.F.R. � 1005.2(e)(1). The direction "will dismiss" gives me no discretion to waive a late filing. David Creswell, DAB CR1045 (2003). The regulations do not provide exceptions to the mandate that I dismiss an untimely request, not even upon a showing of good cause. 42 C.F.R. �� 1001.2007, and 1005.2(c) and (e)(1). Petitioner's hearing request must therefore be dismissed. Moreover, even if the regulations allowed for a good cause exception, I would find that Petitioner's claim that his attorney did not timely file his hearing request did not constitute good cause.

I find that Petitioner was provided proper notice of his exclusion, on August 30, 2003 (and received such notice by September 4, 2003), and that he was specifically informed that he had 60 days in which to file a request for hearing. Petitioner did not file a request for hearing within that period. Thus, Petitioner's letter requesting a hearing, filed on March 2, 2004, is untimely, and therefore is dismissed.

Alfonso J. Montano

Administrative Law Judge

1. In the alternative, and in case I found the hearing request to be timely, the I.G. also moved for summary affirmance. As I find Petitioner's hearing request to be untimely, I am not addressing the issues raised in the I.G.'s alternative motion.