SUBJECT:

Mary Odems,

Petitioner,

The Inspector General.

DECISION

This matter is before me on the Inspector General's (I.G.) "Motion to Dismiss Petitioner's Request for Hearing", as untimely filed. I find that the request for hearing was not timely filed as required by 42 C.F.R. �� 1001.2007(b) and 1005.2(c), and I therefore grant the I.G.'s motion to dismiss pursuant to 42 C.F.R. � 1005.2(e)(1).

I. Procedural History

The I.G. notified Mary Odems (Petitioner) that she was excluded from participation in all federal health care programs for a period of five years. The I.G. based Petitioner's exclusion on Petitioner's "conviction," as defined in section 1128(a)(1) of the Social Security Act (Act), 42 U.S.C. � 1320a-7(a)(1), in the Rankin County Justice Court, State of Mississippi, of a criminal offense related to the delivery of an item or service under the Medicaid program.

Petitioner's request for hearing was filed in an undated letter that was received by the Civil Remedies Division, Departmental Appeals Board, on November 23, 2004. I convened a prehearing conference, by telephone, on January 13, 2005, for the purpose of addressing procedural issues, and I determined that the timeliness of Petitioner's request needed to be addressed along with the merits of the case. Accordingly, by order dated January 27, 2005, I established a briefing schedule. The I.G. filed his motion to dismiss Petitioner's request for hearing and his motion for summary affirmance on February 14, 2005. Additionally, the I.G. submitted four proposed exhibits (I.G. Exs. 1 - 4).

Petitioner submitted her brief (P. Br.) on March 14, 2005. Petitioner submitted four proposed exhibits. They were unmarked. I have marked them as Petitioner's exhibits (P. Exs.) 1 - 4. ⁽¹⁾ The I.G. did not include as proposed exhibits the June 30, 2004 notification of exclusion letter to Petitioner, nor Petitioner's request for hearing. As I refer to these documents in this decision, I have marked the I.G.'s exclusion letter as administrative law judge exhibit (ALJ Ex.) 1, and Petitioner's request for hearing as ALJ Ex. 2. Neither party objected to the exhibits of the other. Therefore, I admit into the record I.G. Exs. 1 - 4, P. Exs. 1 - 4, and ALJ Exs. 1 - 2.

II. Issue

The issue before me is whether Petitioner's request for hearing was filed in a timely manner, in compliance with the terms of 42 C.F.R. �� 1001.2007(b) and 1005.2(c).

III. Applicable Law

Section 1128(a)(1) of the Act, 42 U.S.C. � 1320a-7(a)(1), requires the exclusion from participation in Medicare, Medicaid, and all other federal health care programs, of any individual or entity convicted of a criminal offense related to the delivery of an item or service under title XVIII or under any state health care program. This mandatory exclusion must be imposed for a minimum of five years whenever one of the four classes of predicate convictions set out in section 1128(a) of the Act is established. Section 1128(c)(3)(B) of the Act.

The I.G. is charged with effecting exclusions based on sections 1128(a) and 1128(c)(3)(B) of the Act. See 42 C.F.R. � 1001.101. If the I.G. determines that a conviction constitutes a proper predicate for the exclusion, the I.G. must send notice of the decision to exclude to the affected individual or entity. 42 C.F.R. � 1001.2002.

The individual or entity to be excluded may appeal the exclusion by filing a request for hearing before an ALJ. 42 C.F.R. � 1001.2007. Section 1001.2007 sets limits on the issues that may be considered on appeal and certain requirements in the hearing request's content. It also establishes a discrete time limit for the filing of a request for hearing. 42 C.F.R. � 1001.2007(b) provides that:

The excluded individual or entity has 60 days from the receipt of notice of exclusion provided for in [section] 1001.2002 to file a request for such a hearing.

This filing time limit is restated in the regulations governing the conduct of an excluded party's appeal before the ALJ, which appear at 42 C.F.R. �� 1005.1 - 1005.23. The 60-day deadline appears at 42 C.F.R. � 1005.2(c):

The request for a hearing will be made in writing to the DAB; signed by the petitioner or respondent, or by his or her attorney; and sent by certified mail. The request must be filed within 60 days after the notice, provided in accordance with . . . [section] 1001.2002 . . . is received by the petitioner or respondent. For purposes of this section, the date of receipt of the notice letter will be presumed to be 5 days after the date of such notice unless there is a reasonable showing to the contrary.

Finally, 42 C.F.R. � 1005.2(e) directs that:

The ALJ will dismiss a hearing request where--

1 The petitioner's or the respondent's hearing request is not filed in a timely manner.

IV. Findings of Fact and Conclusions of Law

I find and conclude as follows:

1. Petitioner received notice of her exclusion from Medicare, Medicaid, and all other federal health care programs, pursuant to section 1128(a)(1) of the Act, on or about June 30, 2004. ALJ Ex. 1; 42 C.F.R. � 1005.2(c).

2. Petitioner has failed to make a reasonable showing that she did not receive the I.G.'s notice on or before June 30, 2004. 42 C.F.R. � 1005.2(c).

3. Petitioner filed her request for hearing on or about November 23, 2004. ALJ Ex. 2.

4. Petitioner's request for hearing was not filed in a timely manner. 42 C.F.R. �� 1001.2007(b) and 1005.2(c).

5. Petitioner's request for hearing must be dismissed. 42 C.F.R. � 1005.2(e)(1).

V. Discussion

I decide that Petitioner's request for a hearing must be dismissed as untimely.

By regulation, Petitioner was presumed to have received notice of her exclusion on or about June 30, 2004. 42 C.F.R. � 1005.2(c). The notice the I.G. sent to Petitioner was contained in a letter dated June 30, 2004 that was addressed as follows:

Mary H. Odems

P.O. Box 404

Rolling Fork, MS 39159-0404

ALJ Ex. 1.

Petitioner did not make a "reasonable showing" to rebut the presumption she received the notice on or about that date. In order to preserve her appeal of the exclusion Petitioner was required to file her request for a hearing not later than 60 days from receipt of the notice - August 30, 2004. ALJ Ex. 1, at 2. Petitioner's request for hearing was received in this office on or about November 23, 2004. ALJ Ex. 2. Assuming that mail to the Civil Remedies Division takes several days to traverse the office mail room, I cannot reasonably accept that Petitioner mailed her request for hearing within 60 days after June 30, 2004. Thus, I must dismiss Petitioner's request as untimely. 42. C.F.R. � 1005.2(e)(1).

Petitioner is not represented by counsel, and, therefore, I advised her specifically during the pre-hearing conference that she must explain in writing why her hearing request was late. Petitioner does not deny that she received the I.G.'s notification letter. Rather, Petitioner advises that she "had no understanding of what it was and what it meant. It wasn't until after I was working for River Region Health Systems that I even realized that I had been arrested and convicted of a crime." P. Br. at 2. When Petitioner realized she might be in jeopardy of losing her job at River Region Health Systems, she wrote a letter of appeal, and sent it to the address included in her June 30, 2004 notification letter. ALJ Ex. 2.

Section 1005.2(e)(1) requires that I dismiss a hearing request not filed in a timely manner. This provision does not confer on me, as other ALJs of the Departmental Appeals Board have also held, the authority to consider any facts which might constitute good cause for late filing a hearing request. See Peter D. Farr, M.D., DAB CR909 (2002); Andrew J. Goodrow, DAB CR881 (2002); John F. Pitts, R.Ph., DAB CR820 (2001); Clifford M. Sonnie, M.D., DAB CR732 (2001). Thus, once the untimeliness of the request is established, the only manner in which a petitioner can overcome a motion to dismiss would be to make a "reasonable showing" to rebut the presumption of receipt of the notice. 42 C.F.R. � 1005.2(c).

What constitutes a "reasonable showing" has been addressed in previous decisions. An ALJ has previously concluded that mere assertions of non-receipt are not sufficient to constitute a reasonable showing even if given under oath. Sunil R. Lahiri, M.D., DAB CR296 (1993) (while petitioner offered a sworn affidavit stating that he never "received" the notice of exclusion, such a statement is self-serving and is not enough to rebut the evidence that the notice was received by petitioner's employee in the ordinary course of business). Further, an ALJ in another case concluded that speculative assertions of irregularities or delays in the delivery of mail are not sufficient to constitute a "reasonable showing" that rebuts the presumption of receipt. George P. Rowell, M.D., DAB CR974 (2002).

In this case, Petitioner does not deny she received the I.G.'s notification letter on or about June 30, 2004, nor did she provide a "reasonable showing" that she did not receive it on or about that date. And, there is no evidence that she made any attempt to determine the meaning of the letter either by corresponding with the Office of I.G. or writing to the Civil Remedies Division as indicated in the notification letter.

VI. Conclusion

For the reasons set forth above, I grant the I.G.'s motion to dismiss Petitioner's request for hearing. The hearing request filed by Petitioner, Mary Odems, on November 23, 2004, must be, and is, dismissed.

Anne E. Blair

Administrative Law Judge

1. P. Ex. 1 is a letter dated November 1, 2004 from the Mississippi State Department of Health to the River Region Health System. P. Ex. 2 is a memo dated November 3, 2004 from River Region Health System to Petitioner. P. Ex. 3 appears to be a Mississippi criminal history record. P. Ex. 4 appears to be an employment agreement between Petitioner and H & R Block.