SUBJECT:

Dalene Sue Sinnott,

Petitioner,

The Inspector General

DECISION

Petitioner's request for hearing must be dismissed because it was not timely filed.

I. PROCEDURAL HISTORY

In a letter dated January 14, 2004, Petitioner requested a hearing to challenge the action of the Inspector General (I.G.) excluding her from participation in Medicare, Medicaid, and all federal health care programs for a period of five years pursuant to section 1128(a)(1) of the Social Security Act (the Act). The exclusion is based on Petitioner's conviction in the United States District Court, Northern District of Iowa, of a criminal offense related to the delivery of an item or service under the Medicaid program.

The case was assigned to me for hearing and decision on February 3, 2004. On March 5, 2004, a prehearing conference was conducted by telephone, the substance of which is recorded in my order of March 8, 2004. During the prehearing conference, Petitioner was advised of her right to counsel but she elected to waive that right and proceed with the conference. Counsel for the I.G. requested a briefing schedule for purposes of filing a motion for summary judgment. On April 5, 2004, the I.G. filed a motion to dismiss for untimely filing of the request for hearing or, in the alternative, a motion for summary affirmance (I.G. Brief). ⁽¹⁾ The I.G. filed I.G. exhibits (I.G. Exs.) 1 through 7 with her motion. Petitioner, through counsel retained after the March 5, 2004 prehearing conference, filed Petitioner's response (P. Response) on April 30, 2004, accompanied by Petitioner's exhibits (P. Exs.) 1 through 3. ⁽²⁾ The I.G. filed a reply brief on May 20, 2004 (I.G. Reply).

II. ANALYSIS

Petitioner accepts the I.G.'s "Background" and "Statement of Facts" (I.G. Brief at 1-2 and 4-5) as "substantially correct." P. Response at 1. Petitioner disputes the legal conclusion that her request for hearing was untimely and the legal conclusion that her conviction requires mandatory exclusion. Because I conclude that the request for hearing was untimely, dismissal is required and I do not reach the second issue raised by Petitioner.

My single conclusion of law, that the request for hearing was untimely and that dismissal is required, is supported by the following findings of fact and discussion.

It is undisputed that a notice of exclusion dated June 30, 2003 (I.G. Ex. 4) was sent to Petitioner on June 30, 2003. P. Response at 1. Pursuant to 42 C.F.R. � 1005.2(c), there is a legal presumption that Petitioner received the I.G. notice on the fifth day after the date of the notice, unless there is a reasonable showing to the contrary. The presumption favors the I.G. and Petitioner must present some evidence to make a reasonable showing to rebut the presumption of receipt - mere denials are not enough. See Beverly Jean Taylor, C.N.A., DAB CR1115 (2003); Dulal Bhattacharjee, M.D., DAB CR1107 (2003) (and cases cited therein); Robert Cole, DAB CR917 (2002). The fifth day following June 30, 2003, was July 5, 2003, a Saturday, and delivery is presumed to be the next working day thereafter - Monday July 7, 2003. The 60-day period for filing a request for hearing thus ran from July 7, 2003 through Friday, September 5, 2003. Petitioner's request for hearing, dated January 14, 2004, is clearly outside the 60-day period, and is untimely, unless there is a reasonable showing that Petitioner did not receive the notice or received it more than five days after the date on the notice. I conclude, for the following reasons, that Petitioner has not made a reasonable showing that she either did not receive the June 30, 2003 notice or that it was received more than five days after that date.

Petitioner purportedly sent an unsigned letter (P. Ex. 2) to the I.G., dated October 10, 2003, in which she indicates she is aware she has "been placed on an exclusion list;" she requests paper work to be removed from the list; and she inquires as to why she is on the list. ⁽³⁾ Petitioner refers, in her January 14, 2004 request for hearing, to an attached letter, dated February 3, 2003, from the Kansas City Regional Office of the Inspector General. The letter advises her that due to her conviction she is required to be excluded from participation in Medicare, Medicaid, and all federal health care programs for a minimum period of five years. However, the letter also gives her 30 days to submit materials before a "final determination regarding the length of [her] program exclusion is made." It is undisputed that the address to which the June 30, 2003 I.G. notice was sent was once the correct residential address for Petitioner, as there is no dispute that she received the February 3, 2003 I.G. notice at that address. ⁽⁴⁾

Petitioner states in the request for hearing that she took a job as a staff pharmacist in July 2003 and then, in October 2003, her employer advised her that she was on an exclusion list. Counsel for Petitioner argues in Petitioner's response to the I.G.'s motion that Petitioner did not receive the June 30, 2003 notice from the I.G. because she moved from the address on that notice on May 6, 2003. Counsel asserts that "[h]er testimony was that the Notice was not forwarded." Counsel further asserts that Petitioner "denied knowledge of the Notice of Exclusion until she was told by an employer that she could no longer work as a pharmacist in their employ in October of 2003." Although Petitioner's counsel refers to Petitioner's testimony, no affidavit or declaration executed by Petitioner was submitted by counsel. Further, I will not accept counsel's arguments as a substitute for an affidavit or declaration from Petitioner. Petitioner provides no other evidence related to her purported move, such as a lease or deed, tax record, postal forwarding notice, bills indicating her new residence address, or similar evidence.

Even if I were to accept counsel's argument and representations as an adequate substitute for evidence, however, they are not credible. Petitioner does not dispute that she received the February 3, 2003 I.G. notice that she attached to her request for hearing. The February 3, 2003 I.G. notice clearly advised her that exclusion due to her conviction was mandatory for a minimum period of five years and that the I.G. would be making a final determination as to whether the period of exclusion would be longer. Thus, contrary to the representation in her letter of October 10, 2003 (P. Ex. 2), Petitioner was clearly on notice that she would be excluded and the reason for that exclusion. There are two additional factors that strain the credibility of Petitioner's assertion that she had no knowledge of an exclusion until October 2003: (1) despite admittedly receiving the February 3, 2003 I.G. letter, Petitioner did not follow-up with the I.G. regarding the status of the exclusion proceeding or, apparently, provide the I.G. with her current address, but she did consult with an attorney; and (2) in July 2003, Petitioner was hired by a pharmacy that apparently participates in Medicare or Medicaid, but the pharmacy did not discover Petitioner was subject to an exclusion, or excluded, until October 2003, indicating that Petitioner did not reveal the potential problem to her employer.

I conclude that Petitioner's request for hearing was untimely and an untimely request for hearing must be dismissed. 42 C.F.R. � 1005.2(e)(1). ⁽⁵⁾

III. CONCLUSION

For the foregoing reasons, I find that Petitioner's request for hearing was untimely and must be dismissed.

KEITH W. SICKENDICK

Administrative Law Judge

1. I construe the motion for summary affirmance to be a motion for summary judgment, as there has been no waiver of oral hearing and the regulations recognize no action other than decision after oral hearing, decision on pleadings after waiver of oral hearing, or summary judgment. See 42 C.F.R. �� 1005.2, 1005.3, 1005.4, 1005.6(b)(5).

2. No objections have been made to any exhibits and all are admitted.

3. Even if I treated the October 10, 2003 letter as a request for hearing, it was outside the 60-day period for filing and untimely.

4. It appears that since at least October 10, 2003, Petitioner has been receiving her mail at a post office box. P. Ex. 2.

5. I note here that even if I were to find that Petitioner's hearing request was timely and discuss the second issue raised by Petitioner, whether her conviction requires mandatory exclusion, I would uphold the five-year exclusion imposed by the I.G. The documents submitted by the I.G. show that Petitioner was convicted of a criminal offense related to the delivery of an item or service under the Medicaid program (Petitioner admits that she pled guilty to a misdemeanor offense of misbranding a drug and the bill for payment for the drug was forwarded to Medicaid). P. Response at 2 - 4; I.G. Exs. 1 - 3. Petitioner's intent in committing the criminal offense, or whether the offense is a misdemeanor or a felony, is irrelevant.