Department of Health and Human Services DEPARTMENTAL APPEALS BOARD Civil Remedies Division |
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IN THE CASE OF | |
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DATE: June 7, 2002 |
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The
Inspector General
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Docket No.C-00-707
Decision No. CR917 |
DECISION | |
DECISION I find that Robert Cole
(Petitioner), failed to file his request for hearing in a timely manner.
Additionally, the regulations do not provide the right to a hearing before
an administrative law judge (ALJ) for the relief Petitioner seeks. Accordingly,
Petitioner's request for hearing is dismissed pursuant to 42 C.F.R. �
1005.2(e)(1) and (4). BACKGROUND In August of 1990, the State
of California, Board of Registered Nurses, revoked the nursing license
of Petitioner. I.G. Ex. 3 (1). As
a result, on January 14, 1992, the Inspector General (I.G.) sent Petitioner
notification that he was being excluded from participation in Medicare
and state health care programs pursuant to section 1128(b)(4) of the Social
Security Act (Act). Petitioner was informed by the I.G.'s January 14,
1992 letter that his exclusion would remain in effect until he once again
obtained a valid license to provide health care in the state of California.
I.G. Ex. 1. A number of years later, in June of 2000, Petitioner applied
to the I.G. to reinstate his eligibility to participate in the Medicare
program. On June 21, 2000, the reviewing official for the I.G., wrote
to Petitioner and explained that he was not eligible for reinstatement
because the documents he had submitted to the I.G. with his application
did not show he had regained his California license, and further stated:
P. Ex. 4. On the same day Petitioner received the I.G.'s letter,
Petitioner sent a letter to the Civil Remedies Division, Departmental
Appeals Board, requesting an administrative hearing. I.G. Ex. 2. The Civil
Remedies Division docketed the case and ultimately the case was reassigned
to me for hearing and decision. Thereafter, apparently, Petitioner began the process of
license reinstatement in California. On August 29, 2001, he was advised
by the California Board of Registered Nursing that his reinstatement hearing
had resulted in a favorable decision and that, with the payment of fees,
and a renewal application, among other things, he could obtain
his license. On March 7, 2002, the I.G. filed a motion to dismiss Petitioner's
request for hearing on the grounds that Petitioner failed to file his
request for hearing in a timely manner pursuant to 42 C.F.R. � 1005.2(e)(1).
On March 26, 2002, Petitioner filed his objection to the I.G.'s motion
to dismiss arguing primarily that he did not receive the original exclusion
notice of January 14, 1992. ISSUES The issues in this case are: (1) whether the Petitioner
timely filed his request for a hearing; and (2) whether an ALJ has the
authority to require the I.G. to reinstate the Petitioner after he obtained
a valid nursing license from the state of California. APPLICABLE
LAW An individual or entity who has been excluded from Medicare
participation may request a hearing before an ALJ only on the issues of:
(1) whether the I.G. had a basis for imposing the sanction of exclusion
in the first place; and (2) whether the length of the exclusion was unreasonable.
42 C.F.R. � 1001.2007(a)(1)(i) and (ii). According to regulation, a request
for hearing on an exclusion from Medicare participation must be filed
within 60 days from the receipt of the notice of exclusion. 42 C.F.R.
� 1001.2003. The regulations also provide that:
42 C.F.R. � 1005.2(e). Subpart F of 42 C.F.R. � 1001, entitled "Reinstatement
into the Programs," describes how a person who has been excluded from
participation in Medicare programs can become reinstated. By specific
regulation, the I.G.'s decision to deny reinstatement, "will not be subject
to administrative or judicial review." 42 C.F.R. � 1001.3004(c). DISCUSSION The Petitioner has essentially appealed the denial of
reinstatement, not the original 1992 exclusion. A denial of reinstatement
by the I.G. is not an issue properly before an ALJ. The Petitioner's avenue of redress is to file another
application for reinstatement. I simply have no jurisdiction to require
the I.G. to reinstate the Petitioner. Based on the regulations, the Petitioner
may request a hearing before an ALJ on only two issues: (1) whether the
I.G. had a basis for exclusion in the first place; and (2) whether the
length of the exclusion was reasonable. Petitioner did not state in his
request for hearing or any other filing that the I.G. had no basis for
excluding him. Petitioner has not denied that his California nursing license
was revoked. Nor has he specifically stated that the length of the exclusion
was unreasonable. He has argued that because he is no longer a California
resident and he has been re-licensed in his home state, he should not
have been required to have been reinstated in California in order to be
reinstated by the I.G. Although one might stretch this argument into interpreting
the Petitioner's appeal as an appeal of the reasonableness of the length
of the exclusion, the essential question is still an issue of when he
should have been reinstated, and that is not an issue properly before
an ALJ. 42 C.F.R. � 1001.3004(c). Moreover, as the I.G. points out in its motion to dismiss,
Petitioner is deemed to have received his notice of exclusion five days
after the date of the notice unless Petitioner can make a "reasonable
showing to the contrary." 42 C.F.R. � 1005.2(c). Without such a showing,
Petitioner is deemed to have received his notice by January 19, 1992,
and had until March 20, 1992 to appeal either the basis of the exclusion
or the reasonableness of the exclusion's length. Petitioner has not made a reasonable showing that he did
not receive his notice of exclusion by January 19, 1992. He has denied
that his residence in January 1992 was 1337 Kentucky Street, Concord,
California, where the notice was sent. Petitioner has not, however, stated
what is address was in January 1992. Instead, Petitioner submitted exhibits
to show his address in 1993 and in 1997. This is not sufficient to show
he did not receive the notice of exclusion. Moreover, he wrongly assumes
the I.G. must show that Petitioner did receive
the notice rather than the Petitioner having to make a reasonable showing
he did not receive the notice in January 1992. Petitioner's appeal
for a hearing dated June 2000 is not timely, it being well more than 60
days past the notice of exclusion. Because Petitioner's appeal was not timely filed and because he has not raised an issue that I can properly consider, I must dismiss his appeal. 42 C.F.R. � 1005.2(e)(1) and (4). I note that, as stated in the I.G.'s letter of June 2000, denying his reinstatement, Petitioner is free to reapply for reinstatement. |
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JUDGE | |
Anne E. Blair Administrative Law Judge
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FOOTNOTES | |
1. Without objection from the parties, I admit into evidence Inspector General Exhibits 1-3 (I.G. Exs. 1-3), which was attached to I.G.'s submission, "The Inspector General's Motion to Dismiss Petitioner's Request for Hearing," and Petitioner's Exhibits 1-5 (P. Exs. 1-5), which was attached to Petitioner's submission, "The Petitioner's Objection to the Motion to Dismiss." | |