Department of Health and Human Services DEPARTMENTAL APPEALS BOARD Civil Remedies Division |
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IN THE CASE OF | |
Andrew J. Goodrow, |
DATE: March 13, 2002 |
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The
Inspector General
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Docket No.C-01-992
Decision No. CR881 |
DECISION | |
DECISION Petitioner failed to file
his request for hearing in a timely manner. Accordingly, the request for
hearing is dismissed pursuant to 42 C.F.R. � 1005.2(e)(1). I. Procedural History On January 20, 1999, the
Inspector General (I.G.) sent Petitioner a letter advising him of the
I.G.'s intent to exclude him from participation in the Medicare, Medicaid
and all other federal health care programs. The basis for the exclusion
was Petitioner's recent criminal conviction, and the letter further noted
that a five-year minimum period of exclusion was mandatory pursuant to
sections 1128(a)(1) and 1128(c)(3)(B) of the Social Security Act (Act).
I.G. Ex. 1. (1) By letter dated February
5, 1999, Petitioner requested information regarding how to receive "consideration
of circumstances" with regard to the length of his exclusion from participation.
I.G. Ex. 2. Petitioner did not articulate the circumstances for the I.G.
to consider, and it does not appear that any evidence was submitted with
the letter or subsequent
thereto. Further, I see no evidence that the I.G. specifically responded
to the request for information. On April 30, 1999, the I.G.
notified Petitioner by letter that he was excluded from participation
for a period of 10 years due to his conviction in State court of a criminal
offense related to the delivery of an item or service under the Medicaid
program and the aggravating factor of his prior exclusion. This notice
letter references and incorporates an attached statement of appeal rights.
I.G. Ex. 3. By letter dated September
13, 2001, Petitioner advised the I.G. that he was "interested in stopping
[his] exclusion from eligibility." He acknowledged that he received the
notice of exclusion dated April 30, 1999, and that he missed the 60-day
deadline for filing a hearing request. He asserts that he was unable to
respond in a timely manner due to "significant stress at the time." A
copy of the September 13 letter to the I.G. was sent to the Civil Remedies
Division attached to a cover letter. I.G. Ex. 4. Petitioner's September 13,
2001 submission to the Civil Remedies Division (I.G. Ex. 4) was treated
as a request for hearing and assigned docket number C-01-992. The case
was originally assigned to Administrative Law Judge Carolyn Cozad Hughes
but was subsequently reassigned to me on October 11, 2001. A telephonic
prehearing conference was conducted on October 24, 2001, the substance
of which is memorialized in my Order of November 15, 2001. The I.G. moved to dismiss
on the ground that Petitioner did not timely file a request for hearing.
Petitioner has responded to that motion. (2) II. Issue Whether Petitioner's request
for hearing should be dismissed because it was not timely filed. III. Findings of
Fact and Conclusions of Law
IV. Analysis The regulations are clear
that a request for hearing must be filed in writing within 60 days after
the notice of exclusion is provided. The date of receipt of the notice
is presumed to be five days after the date of the notice, unless there
is a reasonable showing to the contrary. 42 C.F.R. � 1005.2(c). In this
case, it is not disputed that the I.G. notice of exclusion was dated April
30, 1999. There is also no dispute that the I.G. notice letter included
an attachment that advised Petitioner of his right to file a request for
hearing and the regulatory requirements to accomplish the filing. The regulations are also
clear that I "will dismiss" a hearing request where a petitioner's hearing
request is not timely filed. 42 C.F.R. � 1005.2(e)(1). The I.G. asserts,
and I agree, that 42 C.F.R. � 1005.2(e)(1) gives me no discretion to waive
a late filing or to grant an extension of time in which to file a request
for hearing. Other judges have reached the same conclusion. John
F. Pitts, R. Ph., DAB CR820 (2001); Clifford
M. Sonnie, M.D., DAB CR732 (2001). In this case, the issue
is not whether I can waive a late filing or grant an extension of time
to accomplish filing. The issue is whether Petitioner has rebutted the
presumption of receipt of the notice in five days so that the 60-day appeal
period was tolled, i.e., if Petitioner was not competent or able
to understand the letter or notice could he be held to have received it
before he was again able to understand the import of the notice and his
due process rights provided by statute and regulations. Respondent relies
upon the regulatory presumption of 42 C.F.R. � 1005.2(c) that delivery
is presumed to be five days after the date of notice. However, the regulation
does provide that the presumption may be rebutted by a reasonable showing
to the contrary, and therein lies my discretion. I can envision a set of
facts where a petitioner may be found not to have received notice of intent
to exclude due to mental impairment so severe as to have deprived the
petitioner of the ability to understand the nature of the proceedings
and the petitioner's rights. However, this is not such a case. The I.G.
notice letter is dated April 30, 1999. The regulatory presumption is that
Petitioner received the notice by May 5, 1999. Thus, the time for filing
a request for hearing expired on about July 6, 1999. If the request for
hearing was not filed prior to July 6, 1999, I have no option but to dismiss,
unless Petitioner makes a reasonable showing that the running of the 60-day
period was not triggered due to his not having received the notice of
exclusion. Petitioner alleges that
he suffers from a mental impairment known as Post Traumatic Stress Disorder
or PTSD. Petitioner submitted as pages 54 and 55 of P. Ex. 2, a discharge
summary for the period March 1, 2001 through March 23, 2001, from the
Veterans Administration Medical Center in Battle Creek, Michigan. The
discharge summary establishes that Petitioner has been diagnosed as suffering
from PTSD. However, Petitioner's evidence does not establish that he was
suffering any symptoms of PTSD during the period April 30, 1999 through
July 6, 1999. Petitioner has presented no medical evidence, affidavits
from friends, family or third-parties, or any other evidence that he was
so mentally impaired during the period from April 30 through July 6, 1999,
that he was unable to comprehend or exercise his rights. Hence, the regulatory
presumption that the I.G.'s notice of exclusion was delivered to Petitioner
within five days has not been rebutted. Delivery is presumed to have occurred
not later than May 5, 1999, and the 60-day period for filing a request
for hearing expired about July 6, 1999. (3)
There is no evidence that Petitioner attempted to file a request for hearing
until September 13, 2001, more than two years after the period for filing
his request for hearing expired. V. Conclusion Petitioner failed to file his request for hearing in a timely manner. Accordingly, his request for hearing is dismissed pursuant to 42 C.F.R. � 1005.2(e)(1). |
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JUDGE | |
Keith W. Sickendick Administrative Law Judge
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FOOTNOTES | |
1. The I.G. offers I.G. exhibits (I.G. Exs.) 1 - 4 with the I.G.'s motion to dismiss. Petitioner offers two exhibits with his responsive pleadings, Petitioner's exhibits (P. Exs.) 1 and 2. 2. On January 23, 2002, I ordered Petitioner to show cause as to why the case should not be dismissed as having been abandoned, because Petitioner's response to the I.G.'s motion was not received timely. Petitioner responded on January 30, 2002, by providing a copy of his response that bears a date of November 26, 2001. Petitioner's response was apparently delayed due to continuing problems in the receipt of mail by my office through the U.S. Postal Service. I have accepted Petitioner's pleading as timely filed. 3. I take administrative notice that July 6, 1999, was a Tuesday and not a federal holiday. | |