Department of Health and Human Services DEPARTMENTAL APPEALS BOARD Civil Remedies Division |
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IN THE CASE OF | |
John F. Pitts, R.Ph., |
DATE: September 28, 2001 |
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The
Inspector General
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Docket No.C-01-839 Decision No. CR820 |
DECISION | |
DECISION John Pitts, 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 period of five years under sections 1128(a)(1)and 1128(a)(3) of
the Social Security Act (Act). The I.G. has moved to dismiss Petitioner's
request for hearing as untimely. 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.
Background In a letter dated September 30, 1999, the I.G. advised Petitioner of his exclusion from the Medicare, Medicaid, and all federal health care programs because of his conviction of a criminal offense related to the delivery of an item or service under the Medicaid program. The letter indicates:
I.G. Ex 1. Petitioner admits that he received this letter,
along with a notice advising that the request for hearing before an administrative
law judge (ALJ) "must be made in writing within [sixty] days of [his]
receiving the OIG's letter of exclusion." Petitioner's Answer, �� 2, 9,
10. More than a year and nine months later, on July 8, 2001,
Petitioner sent a letter to the Civil Remedies Division asking what procedures
he could follow to make his preclusion retroactive to April 1998, the
last time he worked either as a pharmacist or in the health care industry.
I.G. Ex. 2. This letter has been treated as a request for hearing.
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). Discussion Under the regulations governing the appeal procedures,
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(e)(1). Although Petitioner has not admitted receipt
within 5 days of September 30, 1999, he has made no "reasonable showing
to the contrary." I therefore accept the regulatory presumption and find
that Petitioner received the notice by October 5, 1999. To be entitled to a hearing, Petitioner must file a written
hearing request "within 60 days after the notice . . . is received." 42
C.F.R. � 1005.2(c). The ALJ will dismiss a hearing request that is not
filed in a timely manner. 42 C.F.R. � 1005.2(e). The regulations do not
provide exceptions to this 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).
Petitioner's hearing request must therefore be dismissed. Moreover, even
if the regulations allowed for a good cause exception, Petitioner's claim,
that he received bad advice from his attorney, would not constitute good
cause.
Conclusion I find that Petitioner was provided proper notice of his exclusion, on September 30, 1999 (and received such notice by October 5, 1999), 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. Petitioner's request for hearing, filed on July 8, 2001, is untimely. Petitioner's request for a hearing is therefore dismissed. |
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JUDGE | |
Carolyn Cozad Hughes Administrative Law Judge
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