Department of Health and Human Services DEPARTMENTAL APPEALS BOARD Civil Remedies Division |
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IN THE CASE OF | |
Sharon R. Anderson, D.P.M., |
DATE: July 10, 2001 |
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The
Inspector General
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Docket No.C-00-778
Decision No. CR793 |
DECISION | |
DECISION I find that Petitioner's hearing request was untimely
filed. Therefore, for reasons stated more fully below, I dismiss her request
for hearing. I. Background After the parties had submitted initial briefing on the
I.G.'s motion to dismiss, this case was reassigned to me.(1)
On May 7, 2001, I ordered the parties to make a further response to the
threshold question concerning the authority of an administrative law judge
to hear and decide this matter. I reiterated specific facts in the record
which caused me to question whether I had jurisdiction to hear this case.
I asked the parties to address these facts and the question of whether
Petitioner's appeal was timely filed.
On January 12, 1983, August 9, 1983, and October 21, 1983,
Petitioner executed three Health Education Assistance Loan (HEAL) promissory
notes for $9,300, $9,000, and $6,000, respectively. I.G. Ex. 9. The terms
and the provisions of the promissory notes are identical except in their
amount. Id. The terms of the loans require repayment to the lender
to commence ten months after Petitioner ceases being a full-time student,
except for any period of legitimate deferment. Id. The terms further
provide that if payment does not occur in accordance with the terms and
provisions of the note, the lender could declare the HEAL loan in default.
Id. The terms also require Petitioner to promptly notify, in writing
the lender or any other holder of the notes of any change of name, address,
school enrollment status and change in eligible deferment status. Id.
Petitioner received several deferments and extensions for her loans and
her repayment period began on March 30, 1987, with her first payment scheduled
for May 14, 1987. I.G. Ex. 10. On November 16, 1990, Petitioner filed a Chapter 7 bankruptcy
case in the Central District of California. I.G. Ex. 11. Petitioner was
declared in default of her HEAL loans by the Public Health Service (PHS)
on December 24, 1990. On March 29, 1991, Petitioner obtained the discharge
of all "dischargeable debts" which, pursuant to federal law, did not include
her HEAL debt. By letter dated November 26, 1991, PHS notified Petitioner
that because her HEAL debt was not subject to discharge in her bankruptcy
case, she was required to enter into a repayment plan in order to liquidate
the HEAL debt. I.G. Ex. 12. She did not comply. I.G. Ex. 18. By letter
dated January 28, 1992, PHS informed Petitioner that her HEAL debt was
being referred to a private collection agency and, as she had been previously
informed, if payment in full was not made or a payment plan negotiated,
her account would be referred to the Department of Justice for enforced
collection. I.G. Ex. 16. She did not respond. I.G. Ex. 18. On two more
subsequent occasions, PHS warned Petitioner that her debt was delinquent
and that she must begin immediate repayment to avoid further collection
action. I.G. Exs. 17 and 8. In the last of these warnings, PHS again expressly
offered Petitioner several alternatives. Petitioner was given instructions
for establishing a repayment agreement which required either a good faith
payment to accompany Petitioner's proposed monthly payment amount or the
establishment of an offset agreement with PHS to have Petitioner's Medicare
and/or Medicaid reimbursements directly forwarded to PHS and applied to
her debt. The letter further warned Petitioner that if she was unwilling
or unable to negotiate an offset or repayment agreement with 60 days of
that notice, PHS would immediately refer her case to the Office of the
Inspector General for initiation of an exclusion from participation in
the Medicare program and any State health care program until her entire
debt was repaid. I.G. Ex. 8. Petitioner failed to respond to either of
these notices. I.G. Ex. 18. On August 25, 1993, PHS informed Petitioner
that since Petitioner had not responded to any of its previous attempts
to establish a repayment or offset agreement, and
because her account was delinquent, it was exercising its option and declaring
the notes due and payable and referring the debt to the Department of
Justice for enforced collection. I.G. Ex. 18. On September 20, 1993, the I.G. notified Petitioner that
effective October 20, 1993, she was indefinitely excluded from participation
in the Medicare and Medicaid programs, pursuant to section 1128(b)(14)
of the Social Security Act (Act), based on her failure to repay her delinquent
HEAL debt or to enter into an agreement to repay the debt. I.G. Ex. 5.
The notice specifically informed Petitioner that she could request a hearing
before an administrative law judge and that the request must be made in
writing to the Departmental Appeals Board's Civil Remedies Division within
60 days from her receipt of the I.G.'s letter. Id. Petitioner did
not file a request for a hearing and, pursuant to section 1128(b)(14)
of the Act, she was excluded until such time as her debt was paid in full. At the same time, the Department of Justice instituted
suit on behalf of the United States in the Unites States District Court
for the Central District of California against Petitioner to recover the
amounts she owed on her HEAL debt plus additional interest and costs.
On February 23, 1994, a default judgment was entered against Petitioner.
I.G. Exs. 19 and 20. On June 20, 1994, Petitioner entered into a Settlement
Agreement (Agreement) with the United States to repay the loan. Petitioner,
in consideration of the I.G.'s staying the effect of the exclusion, agreed
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In return, the United States,(2)
specifically the I.G., agreed -
I.G. Ex. 6. The Agreement was executed and Petitioner was notified
on July 11, 1994 that, effective with the date of that letter, Petitioner's
exclusion had been stayed. Pet. Ex. 1. On May 16, 1997, the United States
Attorney sent a letter to Petitioner at the same address indicated on
the Agreement, notifying her that she hd been declared to be in default
of the Agreement's first scheduled payment on July 10, 1994 and numerous
monthly payments thereafter. I.G. Ex. 22. That letter further informed
her that because she was delinquent in payment in an amount over $5,600,
the stay of her exclusion would be lifted by the I.G. unless payment was
received by June 16, 1997. Id. By letter dated March 31, 2000, this Department's Program
Support Center (PSC) informed Petitioner that she was in default of the
Agreement and that the stay of her exclusion would be lifted if payment
of $2,000 was not made within 14 days. I.G. Ex. 23. The I.G. notified
Petitioner, in writing, on May 16, 2000 that because she had defaulted
on her repayment agreement, her exclusion had been reinstated, effective
May 1, 2000, and would remain in effect until such time as the debt is
completely paid.(3) I.G. Ex. 1 On June 21, 2000, Petitioner submitted a cashier's check
in the amount of $32,000 to the PSC, thereby satisfying in full her delinquent
HEAL debt. I.G. Ex. 2. By letter dated July 12, 2000, the I.G. informed
Petitioner that, effective July 12, 2000, her participation in Medicare,
Medicaid, and all other federal health care programs was reinstated. I.G.
Ex. 3. By letter dated August 14, 2000, Petitioner filed a request for
a hearing. I.G. Ex. 4.
The I.G. is required to provide individuals excluded under
section 1128(b)(14) of the Act with notice of their exclusion. 42 C.F.R.
� 1001.2002. That notice must contain: (1) the basis for the exclusion;
(2) the length of the exclusion and, where applicable, the factors considered
in setting the length; (3) the effect of the exclusion; (4) the earliest
date on which the I.G. will consider a request for reinstatement; (5)
the requirements and procedures for reinstatement; and (6) the appeal
rights available to the excluded individual. 42 C.F.R. � 1001.2002(b)
and (c). Excluded individuals are afforded an opportunity to request a
hearing before an administrative law judge provided they make a request
in writing within 60 days after receiving the notice of exclusion. 42
C.F.R. �� 1001.2007(b) and 1005.2(c). A petitioner's
date of receipt of the notice of exclusion letter is 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). The regulations do not permit
extensions of time beyond the 60-day period nor do they provide a "good
cause" exception to that deadline. 42 C.F.R. �� 1001.2007 and 1005.2(c).
Administrative law judges are required to dismiss a hearing request where
a petitioner's hearing request is not filed in a timely manner. 42 C.F.R.
� 1005.2(e)(1). II. Findings of fact and conclusions of
law 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). III. Discussion Federal regulations explicitly state that a request for
a hearing must be filed within 60 days after a petitioner receives the
I.G.'s Notice of Exclusion (Notice). 42 C.F.R. � 1005.2(c). The 60-day
time period does not begin to run until the excluded individual has received
the requisite Notice. Under federal regulations, a petitioner is presumed
to have received the Notice five days after it was sent, absent a reasonable
showing to the contrary. 42 C.F.R. � 1005.2(c). The applicable regulation
contains no exceptions to the 60-day filing deadline. Moreover, the regulations
leave me no discretion; I must dismiss a hearing request where the Petitioner's
hearing request is not filed in a timely manner. 42 C.F.R. � 1005.2(e)(1). Petitioner does not dispute that on September 20, 1993,
she was notified by the Office of the Inspector General that she would
be indefinitely excluded from participation in the Medicare and Medicaid
programs, effective October 20, 1993, until she repaid her HEAL debt.
Petitioner's Opposition to I.G.'s Motion to Dismiss (P. Opp.) at 1-2;
I.G. Ex. 5. The Notice was complete and conforming in all respects: it
stated the basis of the exclusion; the length of the exclusion; the effect
of the exclusion; the earliest date on which the I.G. would consider a
request for reinstatement; the requirements and procedures for reinstatement;
and the appeal rights available to the excluded individual. 42 C.F.R.
� 1001.2002(b) and (c). Thus, taking into account the presumed period
for receipt of the Notice, Petitioner is deemed to have received the Notice
on September 25, 1993. Petitioner was, therefore, required to submit her
hearing request by November 24, 1993. She did not. Consequently, because
Petitioner chose not to file a hearing request, the exclusion became final
after the 60-day filing period elapsed. Petitioner contends that as an excluded individual she
is entitled under the Act to "reasonable notice and opportunity for a
hearing . . . ." Section 1128(f) of the Act. Petitioner also, by citing
42 C.F.R. � 1001.2007 and � 1005.2, recognizes that an excluded individual
has only a specified period of 60 days from the receipt of the notice
to file a request for a hearing. P. Opp. at 4. She also states that she
is aware that my jurisdiction is circumscribed. Id. However, Petitioner
has chosen to deliberately ignore the September 20, 1993 Notice of Exclusion
from the I.G. By this Notice, Petitioner was given reasonable notice and
opportunity for a hearing. She was further informed that she had 60 days
from the receipt of that Notice to file her appeal. She affirmatively
chose not to do so. Her exclusion then became final and any request for
a hearing filed after that date was untimely. Thus, her August 14, 2000
request for hearing is, without question, untimely, and I have no authority
to hear this matter. It was only after Petitioner's exclusion became final and binding on her and, perhaps, when she realized that she would not be able to receive Medicare and Medicaid reimbursement for her services, that she attempted to remedy the situation by entering into a settlement with the United States. While she contends otherwise, the I.G. was a party to this agreement and the stated consideration for this agreement was that the I.G. would stay the effect of Petitioner's exclusion as long as she complied with the payment schedule. I.G. Ex. 6 at 1. Petitioner entered into this agreement well after her exclusion became final as an administrative action of the Department. The terms of the agreement are clear; Petitioner agreed that should she default on her repayment she would not request a hearing, that she waived all procedural rights, including but not limited to notice, hearing, appeal and administrative and judicial review, and she voluntarily executed the agreement in order to stay the effect of the exclusion. Id. I conclude that even if Petitioner had timely filed a request for hearing, she voluntarily waived her right to further notice and any appeal rights when she executed the June 24, 1994 Agreement with the United States and, then, subsequently defaulted on her obligations under the Agreement. I.G. Ex. 6; see also I.G. Exs. 22, 23, and 1. IV. Conclusion I find that Petitioner was provided proper notice of her exclusion on September 20, 1993, and that she was specifically informed that she had 60 days in which to file a request for hearing. A request for hearing from that Notice should have been filed on or before November 24, 1993. Petitioner did not file a request for hearing within that period. Petitioner's request for hearing, filed on August 14, 2000, is untimely. Therefore, I must dismiss that hearing request on the basis that she failed to file her request for hearing within 60 days of her receipt of the I.G.'s Notice, as required by the regulations. |
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JUDGE | |
Alfonso J. Montano Administrative Law Judge
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FOOTNOTES | |
1. The I.G. submitted a December 7, 2000 motion to dismiss accompanied by four exhibits (I.G. Exs. 1 - 4). Petitioner submitted a response brief on January 16, 2001 accompanied by three exhibits (P. Exs. 1 - 3). The I.G. submitted a reply brief on February 16, 2001 accompanied by 22 exhibits (I.G. Exs. 5 - 27). On March 5, 2001, Petitioner by letter indicated that since the only issue she was instructed to argue and brief was whether an Administrative Law Judge had jurisdiction to hear this matter, that she, unlike the I.G., did not present any evidence or argument speaking to the substantive aspects of her appeal. After the case was reassigned to me and review of the party's submissions, I issued an Order for Further Response on May 7, 2001. 2. The agreement specifically indicated that the U. S. Attorney received the concurrence of this Department (PHS and the I.G.) to the terms of the agreement. 3. Petitioner contends that she did not receive the May 16, 2000 letter until June 15, 2000 because it was sent to her "ten-year-old address." Petitioner's August 14, 2000 letter to Ms. Williams. There is no indication, other than Petitioner's statement, that she specifically informed the I.G.'s office of her new address; however, there is some indication that, because she was a Medicare provider, the Centers for Medicare & Medicaid Services may have had her current address. I.G. Exs. 25, 26, and 27. | |