SUBJECT:

David Creswell

Petitioner,

The Inspector General

I. PROCEDURAL HISTORY

The Inspector General (I.G.) notified Petitioner by letter dated January 31, 2002 (I.G. exhibit (I.G. Ex.) 1), that he was being excluded from participation in Medicare, Medicaid, and all other federal health care programs. The I.G. stated in the notice that the action was taken pursuant to section 1128(b)(4) of the Act (42 U.S.C. � 1320a-7(b)) because Petitioner's Nebraska license to provide health care services was revoked, suspended, or otherwise lost for reasons bearing upon Petitioner's professional competence, professional performance, or financial integrity. The notice also advised Petitioner of his right to request a hearing by an administrative law judge within 60 days of his receipt of the January 31, 2002 I.G. notice letter. Id.

Petitioner sent a letter to the I.G. dated August 8, 2002, asking why he was being barred from participation in federal health care programs. Petitioner's letter was treated as a request for hearing and forwarded to the Civil Remedies Division of the Departmental Appeals Board. The case was assigned to me for hearing and decision on October 9, 2002, and a prehearing conference was scheduled for October 17, 2002. Petitioner did not appear at the prehearing conference and did not respond in writing as to why he was not available as he advised my staff attorney he would be. Accordingly, on October 29, 2002, Petitioner was ordered to show cause why this case should not be dismissed for abandonment.

Petitioner failed to file a timely written response to the order to show cause and on November 26, 2002, I issued an order dismissing this case. In a letter dated December 10, 2002, Petitioner acknowledged receiving the dismissal order dated November 26, 2002, and requested that I reconsider on various grounds. By order dated December 26, 2002, I set a telephonic prehearing conference for January 22, 2003. Petitioner did appear and participate in the telephone conference, the substance of which is set forth in my order dated January 23, 2003. The parties agreed to a briefing schedule.

In a letter dated February 5, 2003, Petitioner requested he be granted a hearing, detailing the difficulties he has faced due to being excluded from participation in federal health care programs, and emphasizing that he desires to be reinstated. On February 21, 2003, the I.G. filed an objection to my reconsideration of the dismissal order and an alternative motion to dismiss the request for hearing for untimely filing. The I.G. submitted one exhibit, to which Petitioner has not objected, and which I admit as I.G. Ex. 1. Pursuant to the briefing schedule agreed to during the January 22, 2003 conference, as set forth in my order of January 23, 2003, Petitioner was to file a response to the I.G.'s brief not later than March 24, 2003. No response having been received from Petitioner more than 30 days after the date it was due, I treat the record as closed and decide upon the record before me.

II. Findings of Fact and Conclusions of Law

A. Findings of Fact

1. The I.G. advised Petitioner by letter dated January 31, 2002, that he was being excluded from participation in Medicare, Medicaid, and all other federal health care programs due to the revocation, suspension, or other loss of his Nebraska license to provide health care services for the period of such revocation, suspension or loss. I.G. Ex. 1.

2. The I.G.'s letter of January 31, 2002, included an attachment that advised Petitioner that he could "request a hearing before an administrative law judge . . . in writing within 60 days of (his receipt of) the OIG's letter of exclusion . . . ." I.G. Ex. 1.

3. Petitioner has not rebutted the presumption that he received the I.G.'s letter of January 31, 2002, within five days of the date of that letter. 42 C.F.R. � 1005.2(c).

4. Petitioner requested a hearing by letter dated August 8, 2002.

B. Conclusions of Law

1. Petitioner's request for hearing was not timely filed.

2. Dismissal of Petitioner's request for hearing is required pursuant to 42 C.F.R. � 1005.2(e)(1).

III. DISCUSSION

A. ISSUES

Whether Petitioner has a right to a hearing.

B. ANALYSIS

The I.G. argues that my dismissal order was final and binding upon the parties pursuant to 42 C.F.R. � 1005.20(d) and that I have no authority under 42 C.F.R. � 1005.4 to reconsider, reopen, and revise my earlier order dismissing this case. Given the disposition of this case, I will not linger on the I.G.'s challenges to my jurisdiction and authority. In this case, vacating the prior order of dismissal is warranted to ensure that the record is clear and justice is done. Petitioner requested reconsideration on December 10, 2002, well within the 30-day period authorized for filing an appeal. 42 C.F.R. � 1005.20. It is clear from Petitioner's request for reconsideration that he did not intend to abandon his request for hearing. I also consider that Petitioner is not represented by counsel. Accordingly, I vacate the order of dismissal issued in this case on November 26, 2002, and proceed to consider the I.G.'s motion to dismiss the request for hearing due to untimely filing.

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. letter notifying Petitioner of his exclusion was dated January 31, 2002. There is also no dispute that the I.G.'s January 31, 2003 letter included an attachment that advised Petitioner of his right to file a request for hearing and the regulatory requirements to accomplish the filing. Petitioner has failed to present any evidence to rebut the presumption that the I.G.'s January 31, 2002 letter notifying him of his exclusion and advising him of his hearing rights was actually received within five days of the date of that notice, i.e. on or before February 5, 2002.

The regulations are clear that an administrative law judge "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, Petitioner's request for hearing is dated August 8, 2002, more than 60 days after Petitioner's receipt of the January 31, 2002 letter from the I.G. notifying Petitioner of his exclusion . Accordingly, Petitioner's request for hearing was untimely and must be dismissed.

IV. CONCLUSION

For the foregoing reasons, Petitioner's request for hearing is dismissed.

Keith W. Sickendick

Administrative Law Judge