I dismiss Petitioner's request for a hearing pursuant to 42 C.F.R. � 1005.2(e)(1). Petitioner did not request a hearing within the time period mandated by the applicable regulation at 42 C.F.R. � 1005.2(c). Petitioner, therefore, is not entitled to a hearing.

I. Background

The Inspector General (I.G.) sent Petitioner, Jay Alan Roach, R. Ph., a letter dated March 30, 2001, notifying him of his exclusion from Medicare, Medicaid, and all federal health care programs. A copy of the letter is in the record as an attachment to Petitioner's request for hearing. As explained in the I.G.'s notice of exclusion, Petitioner was excluded for a period of five years pursuant to section 1128(a)(4) of the Social Security Act (Act) due to his conviction of a felony offense related to the unlawful manufacture, distribution, prescription or dispensing of a controlled substance. Petitioner filed a request for a hearing on September 9, 2003. I convened a prehearing telephone conference in this matter on October 30, 2003. The I.G. was represented in this case by the Office of Counsel. Although advised of his right to representation, Petitioner elected to appear on his own behalf. During the conference, counsel for the I.G. stated her intent to file a motion requesting that I dismiss this case based on the untimely filing of Petitioner's request for a hearing. Petitioner expressed a desire to respond to the I.G.'s motion. The I.G.'s motion to dismiss Petitioner's hearing request was filed on November 13, 2003, and Petitioner's response to the I.G.'s motion to dismiss was filed on November 18, 2003. I received the I.G.'s reply brief in support of its motion to dismiss on December 12, 2003, and I deemed the record closed as of December 15, 2003. On January 7, 2004, Petitioner filed with my office an e-mail transmittal which stated that he had prepared a rebuttal statement to the I.G.'s reply brief and he needed direction on how to proceed. I convened a telephone conference with the parties on January 9, 2004, to address both Petitioner's question regarding the status of the proceedings and my jurisdiction regarding the issue in this case as it pertains to the pending motion to dismiss before me. Upon my inquiry, Petitioner indicated that although he had performed a substantial amount of research to support his position regarding the exclusion, the rebuttal statement he intended to file did not specifically address the issue of his untimely filing of a hearing request. As there was no additional information either party wished to present which specifically addressed the issue of untimely filing, I informed the parties that the record remained closed as of December 15, 2004, and that my decision would be forthcoming.

II. Issue

Whether Petitioner's request for hearing should be dismissed because it was not filed within 60 days after the notice of exclusion was received by Petitioner. 42 C.F.R. � 1005.2(c).

III. Findings of Fact and Conclusions of Law

I make the following findings of fact and conclusions of law (Findings), and I discuss my findings in detail, below.

III. Discussion

The applicable federal regulations clearly indicate that an excluded individual must request a hearing, in writing, within 60 days after the notice of exclusion is received by that individual. 42 C.F.R. � 1005.2(c). The 60-day period begins to run when the excluded individual has received the requisite notice of exclusion. Under federal regulations, the excluded individual is presumed to have received the notice of exclusion within five days after it was sent, absent a reasonable showing to the contrary. 42 C.F.R. � 1005.2(c). There is no exception to the 60-day filing deadline, whether it be for "good cause" or otherwise. 42 C.F.R. � 1005.2. The regulations do not afford Administrative Law Judges (ALJs) the authority to exercise their discretion in waiving a late filing or in granting an extension of time for a petitioner to file a request for a hearing. An ALJ must dismiss a petitioner's hearing request that has not been filed in a timely manner. 42 C.F.R. � 1005.2(e)(1).

In the present case, Petitioner admits that he received the I.G.'s notice of exclusion over two years ago, and that he did not timely file a hearing request. Petitioner's Response Brief at 1. The record supports these concessions. Although Petitioner asserts that he did not timely file his request for hearing because the I.G. failed to explain to him the scope and ramifications of his exclusion from participation in all federal programs, it is undisputed that Petitioner did not file his request until 884 days after the date he received the I.G.'s notice of exclusion. Clearly, Petitioner's request for hearing was untimely. The federal regulations provide that an ALJ "will" dismiss a hearing request where the request is not made timely. 42 C.F.R. � 1005.2(e)(1).

IV. Conclusion

The record shows, and Petitioner has admitted, that his hearing request was not filed on time. I conclude that Petitioner's hearing request must be dismissed on the basis that he failed to file his request within 60 days of his receipt of the I.G.'s notice of exclusion, as required by the federal regulations governing this proceeding.

Alfonso Montano

Administrative Law Judge