Department of Health and Human Services DEPARTMENTAL APPEALS BOARD Civil Remedies Division |
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IN THE CASE OF | |
Kenneth F. Kirstein, |
DATE: May 22, 2002 |
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The
Inspector General
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Docket No.C-02-221 Decision No. CR907 |
DECISION | |
DECISION I dismiss the
request for hearing that was filed by Petitioner, Kenneth F. Kirstein.
I do so because: (1) Petitioner did not file his hearing request timely;
and, (2) Petitioner did not answer the motion by the Inspector General
(I.G.) to dismiss his hearing request. I.
Background On June 30, 2000, the I.G. notified Petitioner that he was being excluded from participating in Medicare and other federally funded health care programs. Petitioner did not request a hearing until November 10, 2001. At that point the case was assigned to me for a hearing and a decision. On March 20, 2002, the I.G. moved to dismiss Petitioner's hearing request. Petitioner did not answer the motion. II. Issues, findings of fact and conclusions of law
The issue in this case is whether there are grounds for me to dismiss Petitioner's request for a hearing.
I make findings of fact and conclusions of law (Findings) to support my decision in this case. I set forth each Finding below, as a separate heading. I discuss each Finding in detail.
Administrative
hearings involving the I.G. are governed by regulations at 42 C.F.R. Part
1005. The regulations provide that a party who receives a notice of an
adverse determination from the I.G. must request a hearing within 60 days
from receipt of the notice. 42 C.F.R. � 1005.2(c). Receipt of a notice
is presumed to be five days from the date that the notice is mailed. Id.
The regulations provide that an administrative law judge "will dismiss"
a hearing request that is not filed timely. 42
C.F.R. � 1005.2(e)(1). The regulations
do not give an administrative law judge discretion in a case involving
the I.G. to decide whether dismissal of a hearing request is appropriate
if the request is not filed timely. I read the phrase "will dismiss" as
mandating dismissal of a hearing request in such a case. In this case I have no choice but to dismiss Petitioner's hearing request as being filed untimely. Petitioner did not file his request until more than a year had elapsed from the date when he received the I.G.'s notification of his exclusion. In his request for hearing, dated November 10, 2001, Petitioner acknowledged that he received the exclusion notice in July 2000.
Regulations
provide, at 42 C.F.R. � 1005.14, that an administrative law judge may
enter sanctions against a party for failing to defend an action. Sanctions
may include dismissal of a hearing request. 42 C.F.R. � 1005.14(a)(5).
Petitioner filed no answer to the I.G.'s motion to dismiss. I find it appropriate to dismiss Petitioner's hearing request in light of that. I note that, in this case, I am doing no more than to award the I.G. the relief that it sought in its motion and against which Petitioner failed to offer any defense. |
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JUDGE | |
Steven T. Kessel Administrative Law Judge |
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