Department of Health and Human Services DEPARTMENTAL APPEALS BOARD Civil Remedies Division |
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IN THE CASE OF | |
Jeffrey A. Wejrowski, R.Ph., |
DATE: July 3, 2001 |
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The
Inspector General
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Docket No.C-01-234 Decision No. CR790 |
DECISION | |
DECISION I dismiss the hearing request submitted by Jeffrey A.
Wejrowski, R.Ph. (Petitioner). Petitioner has no right to a hearing because
his hearing request is untimely. I. Background By letter dated April 30, 1999, the Inspector General
(I.G.) notified Petitioner that he was being excluded for 10 years from
participation in the Medicare, Medicaid, and all federal health care programs
(Medicare and Medicaid) as defined in section 1128B(f) of the Social Security
Act (Act). The I.G.'s notice letter stated that Petitioner was being excluded
based on his conviction in a State court of a criminal offense related
to the Medicaid program. Pursuant to sections 1128(a)(1) and 1128(c)(3)(B)
of the Act, a conviction of a criminal offense related to the delivery
of an item or service under the Medicaid program mandates a minimum five-year
period of exclusion. The I.G. excluded Petitioner for 10 years because
the I.G. determined that two aggravating factors existed in his case justifying
a lengthier exclusion: 1) the acts resulting in Petitioner's conviction
resulted in financial loss to a government program of $1500 or more; and,
2) the sentence imposed by the State court included incarceration. 42
C.F.R. �� 1001.102(b)(1), (5). Petitioner filed an "application/petition for termination/reduction
of the exclusion or exclusion period" on December 5, 2000 with both my
office and the Office of the Inspector General. In this request, which
was received and processed by the Civil Remedies Division as a hearing
request, Petitioner requested termination of his exclusion or a reduced
period of exclusion. Petitioner admitted, among other things, that he
had been convicted of Medicaid fraud and that he had been sentenced to
incarceration and had been required to repay more than $54,000 in restitution.
However, Petitioner stated that his pharmacy license had been restored
to him and that he had been offered employment as a pharmacist if his
exclusion could be terminated. Petitioner asserted that there was no basis
to continue his exclusion, citing in support of his assertion his positive
probation officer's report and his belief that he could reasonably assure,
given the job offer he received, that the type of actions which formed
the basis for his conviction would not recur. This case was originally assigned to Administrative Law
Judge Joseph K. Riotto. On April 26, 2001, the case was reassigned to
me. I note that the staff attorney assigned to the case conducted a telephone
prehearing conference for Judge Riotto on January 24, 2001. During the
conference, the parties agreed that the case could be decided on a written
record. The I.G. submitted a "motion to dismiss and for summary disposition
and brief in support" (I.G. Br.) on March 30, 2001, accompanied by four
exhibits (I.G. Exs. 1 - 4). In the absence of objection by Petitioner,
I admit I.G. Exs. 1 - 4 into evidence. Petitioner submitted a response
(P. Br.) and a two page synopsis of his brief and statement of issues
on May 23, 2001, accompanied by one exhibit (P. Ex. 1). In the absence
of objection by the I.G., I admit P. Ex. 1 into evidence. The I.G. submitted
a reply brief (I.G. Reply Br.) on June 12, 2001. II. Issues The issues in this case, as framed in Judge Riotto's January
24, 2001 "Order and Schedule for Filing Briefs and Documentary Evidence"
were: a) Whether Petitioner was convicted of a criminal offense under
section 1128(a)(1) of the Act; and b) Whether the length of the exclusion
imposed against Petitioner by the I.G. is unreasonable. These are the
two issues that an administrative law judge is delegated to hear in any
case involving a petitioner excluded under section 1128(a)(1) of the Act
(as well as other subsections of section 1128). In her motion to dismiss,
however, the I.G. raised a new and dispositive jurisdictional issue, which
is whether the hearing request submitted by Petitioner was timely filed.
Petitioner's response raised other issues, regarding whether or not Petitioner's
hearing request was really a request for a hearing before an administrative
law judge; whether the Act and regulations provide for an exclusion to
end prior to the termination of a petitioner's period of exclusion; and,
whether the I.G. validly exercised the I.G.'s discretion. See 42
C.F.R. � 1005.4. III. Findings of Fact and Conclusions of Law I make findings of fact and conclusions of law (Findings) to support my decision in this case. I set forth each of my Findings below, in italics, as a separately numbered heading. I discuss each Finding in detail.
The I.G. excluded Petitioner pursuant to section 1128(a)(1)
of the Act. An individual who is excluded under section 1128(a)(1) of
the Act has a right to reasonable notice, and an opportunity for an administrative
hearing to challenge both the I.G.'s authority to impose the exclusion
and the reasonableness of the length of the exclusion. Act, section 1128(f);
see Act, section 205(b). However, the right to a hearing is conditioned
on the individual making a timely request for a hearing after receiving
notice of the I.G.'s exclusion determination. An excluded individual who
fails to timely request a hearing loses the right to a hearing. The request
for a hearing must be filed within 60 days after the I.G.'s exclusion
notice is received by the excluded individual. 42 C.F.R. � 1005.2(c).
The date of receipt of the notice letter will be presumed to be five days
after the date of the notice letter unless there is a reasonable showing
to the contrary. Id. The I.G.'s notice of exclusion, which Petitioner does not dispute receiving, was sent to Petitioner on April 30, 1999. I.G. Ex. 1. Petitioner apparently sent a letter to the I.G. on June 1, 1999 (which is not in evidence in this proceeding) requesting clarification of the terms and effect of his exclusion. I.G. Reply Br. at 1. Petitioner does not assert that this letter constituted a hearing request. See Petitioner's December 5, 2000 hearing request; P. Br. Petitioner submitted his "application for termination of exclusion from participation," which has been docketed, processed and considered as a hearing request, on December 5, 2000, more than a year and a half after the date of the I.G.'s notice letter and far outside the period for him to timely file a hearing request.
The regulations applicable to this case, at 42 C.F.R.
� 1005.2(e)(1), require me to dismiss a hearing request where a petitioner's
hearing request is not filed in a timely matter. As Petitioner's hearing
request was filed out of time, I must dismiss the case. IV. Petitioner's other arguments In his response, Petitioner asserts that his December
5, 2001 submission was not intended to be a "hearing request," but instead
was "the plea of a convicted felon, to the sovereign United States government
to permit the Petitioner to begin to reconstruct his life by being permitted
to, again, perform professional pharmacy services pursuant to the license
so reissued by the State of Wisconsin, on the very recommendation of the
parole probation officer of the Petitioner." P. synopsis of brief and
statement of issues, at 2 - 3. Petitioner also argues that the Act and
regulations, on their face, provide for termination of an exclusion prior
to the expiration of the exclusion (Id. at 2) and that the I.G.
did not validly exercise her discretion in denying Petitioner's petition
for early termination (P. Ex. 1) because the I.G. did not evaluate the
statutory and regulatory criteria applicable to this case. I note that although Petitioner asserts that his December
5, 2000 submission was not a hearing request, Petitioner is nonetheless
asking me to determine both that the Act provides for a procedure and
methodology for an excluded individual to apply for termination of an
exclusion prior to the expiration of the minimum mandatory period, and
that the I.G. did not exercise her discretion with regard to the criteria
on reinstatement, as is evidenced by the I.G.'s letter to Petitioner dated
January 31, 2001 (P. Ex. 1). Even if Petitioner's submission of December
5, 2000 constituted a timely hearing request, however, I would not be
able to consider these issues, as Petitioner has raised issues beyond
the scope of my authority. Petitioner contends that section 1128(g) of
the Act authorizes the I.G. to terminate his 10-year period of exclusion
prior to its expiration. P. Br. at 2. However, the regulations governing
this case provide that a petitioner is not eligible to apply for reinstatement
until the expiration of that petitioner's exclusion. 42 C.F.R. � 1001.3002.
I am bound by the regulations. Further, I do not have the authority to
adjudicate the I.G.'s exercise of her discretion. Moreover, I note that, in his response, Petitioner admits
that his exclusion was " . . . proper under the circumstances and by Law
duly authorized." P. Br. at 2. Petitioner does not dispute that he was
convicted of Medicaid fraud or that two aggravating factors exist in his
case. Although I have dismissed this case based on timeliness, were I
to consider the issues I note that, given Petitioner's admissions and
the evidence presented by the I.G. (I.G. Exs. 1 - 4), I would be likely
to find Petitioner's conviction related to the delivery of an item or
service under a State health care program (Medicaid) and, given the aggravating
factors in the case, his exclusion to be within a reasonable range. V. Conclusion I conclude that Petitioner did not timely request a hearing and thus is not entitled to a hearing on any issue. The regulations provide that an administrative law judge will (emphasis added) dismiss a hearing request where the request is not made timely. 42 C.F.R. � 1005.2(e)(1). Accordingly, I dismiss Petitioner's request for a hearing. |
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JUDGE | |
Marion T. Silva Chief Administrative Law Judge |
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