This matter is before me on the Inspector General's Motion to Dismiss Petitioner's request for hearing as untimely filed. I find that the request for hearing was not timely filed as required by 42 C.F.R �� 1001.2007(b) and 1005.2(c), and I, therefore, grant the Inspector General's Motion to Dismiss pursuant to 42 C.F.R. � 1001.1005.2(e)(1).

I. Procedural History

The Inspector General notified Patricia Ann Petrak (Petitioner) that she was excluded from participation in federal health care programs for a period of five years. Inspector General's exhibit (I.G. Ex.) 1. The Inspector General based Petitioner's exclusion on Petitioner's "felony conviction as defined in section 1128(i)( 42 U.S.C. 1320a-7(i)), in the Iowa District Court in and for Linn County, of a criminal offense related to the unlawful manufacture, distribution, prescription, or dispensing of a controlled substance." Id.

The notice the Inspector General sent to Petitioner was contained in a letter dated June 30, 2003 that was addressed as follows:

IV. Findings of Fact and Conclusions of Law

I find and conclude as follows:

1. Petitioner Patricia Ann Petrak, received notice of her exclusion from Medicare, Medicaid, and all other federal health care programs pursuant to section 1128(a)(4) of the Act on or about July 7, 2003. I.G. Ex. 1; 42 C.F.R. � 1005.2(c).

2. Petitioner has failed to make a reasonable showing that she did not receive the Inspector General's notice on or before September 7, 2003. 42 C.F.R. � 1005.2(c).

3. Petitioner filed her request for hearing on November 5, 2003.

4. Petitioner's request for hearing was not filed in a timely manner. 42 C.F.R. �� 1001.2007(b) and 1005.2(c).

5. Petitioner's request for hearing must be dismissed. 42 C.F.R. � 1005.2(e)(1).

V. Discussion

I decide that Petitioner's request for a hearing must be dismissed as untimely. By regulation Petitioner was presumed to have received notice of her exclusion on or about July 7, 2003. 42 C.F.R. � 1005.2 (c). Petitioner did not make a "reasonable showing" to rebut the presumption she received the notice on or about that date. In order to preserve her appeal of the exclusion Petitioner was required to file her request for a hearing not later than 60 days from her receipt of the notice: September 5, 2003. Id. Petitioner filed her request for a hearing on November 5, 2003. Thus, I must dismiss Petitioner's request as untimely. 42. C.F.R. � 1005.2(e)(1).

Section 1005.2(e)(1) requires that I dismiss a hearing request not filed in a timely manner. This provision does not confer on me, as other administrative law judges of the Civil Remedies Division have also held, the authority to consider any facts which might constitute good cause for late filing a hearing request. See Peter D. Farr, M.D., DAB CR909 (2002); Andrew J. Goodrow, DAB CR881 (2002); John F. Pitts, R.Ph., DAB CR820 (2001); Clifford M. Sonnie, M.D., DAB CR732 (2001). Thus, once the untimeliness of the request is established, the only manner in which a petitioner can overcome a motion to dismiss would be to make a "reasonable showing" to rebut the presumption of receipt of the notice. 42 C.F.R. � 1005.2(c).

What constitutes a "reasonable showing" has been addressed in previous decisions. An administrative law judge has previously concluded that mere assertions of non-receipt are not sufficient to constitute a reasonable showing even if given under oath. Sunil R. Lahiri, M.D., DAB CR296 (1993) (while petitioner offered a sworn affidavit stating that he never "received" the notice of exclusion, such a statement is self-serving and is not enough to rebut the evidence that the notice was received by petitioner's employee in the ordinary course of business). And an administrative law judge in another case concluded that speculative assertions of irregularities or delays in the delivery of mail are not sufficient to constitute a "reasonable showing" that rebuts the presumption of receipt. George P. Rowell, M.D., DAB CR974 (2002).

In Petitioner's request for hearing, she acknowledged that the request for hearing was filed outside of the 60 day time limitation period. She maintained that at the time of the receipt of the notice of exclusion, which she indicates was in early July 2003, she discussed it with her probation officer. She asserted that the failure to timely file a request for hearing was based on incorrect advice from her probation officer who advised her that the exclusion did not apply since her judgment had been deferred. Petitioner also maintained that she did not receive a Notice of Intent to Exclude from the Inspector General.

In her brief in opposition to the Inspector General's motion to dismiss, Petitioner claims she did not receive the Inspector General's June 30, 2003 notice letter until a copy was sent by facsimile to her attorney on October 28, 2003. Petitioner's brief at 2. To support this claim Ms. Petrak offers as evidence her signed declaration that her claim is true; and she offers also, incorporated in her declaration, that there are similar mailing addresses to hers in her zip code and those addresses "cause much confusion and, on numerous occasions, I have failed to receive mail sent to me at [Ms. Petrak's home] address." P. Ex. B. Petitioner offers also a signed declaration by her counsel in this matter, Clifford Swartz. Mr. Swartz declared that when he filed Ms. Petrak's request for hearing he "understood that Ms. Petrak had received the June 30, 2003 notice of exclusion in a timely manner . . . . " P. Ex. C. Mr. Swartz declared also, however, that he later discovered that "Ms. Petrak did receive the January 31, 2003, notice of intent in a timely manner but did not receive the June 30, 2003 notice of exclusion until after a copy of said letter was sent via facsimile to [Mr. Swartz'] office from the Office of Inspector General on October 28, 2003" (italics in original). Id. Ms. Petrak makes no mention of receiving any notice from the Inspector General in her sworn statement.

I find that Ms. Petrak's unsupported statement and her unsubstantiated claim about irregularities in her mail delivery do not constitute a "reasonable showing" that rebuts the presumption that she received the notice of exclusion on or about July 7, 2003. Similar to the petitioner's argument in Lahiri (supra), Ms. Petrak attempts to rely on a self-serving declaration. And, similar, to the petitioner's argument in Rowell (supra), Ms. Petrak, in her declaration, speculates about irregularities in the delivery of her mail without any supporting evidence. I agree with the principle discussed in those two previous decisions that unsupported statements and theories do not establish the facts necessary to effectively rebut the presumption of receipt set forth in section 1005.2(c). Accordingly, I conclude that Petitioner received the noti of exclusion on or about July 7, 2003.

VI. Conclusion

For the reasons set forth above, I grant the Inspector General's Motion to Dismiss Petitioner's request for hearing. The hearing request filed by Petitioner Patricia Ann Petrak, on November 5, 2003, must be, and it is, dismissed.

Alfonso J. Montano

Administrative Law Judge