SUBJECT:

Paula M. Teague Caminita,

Petitioner,

The Inspector General.

DECISION

Petitioner's request for hearing was untimely filed and fails to raise any issue that may be addressed at a hearing. Accordingly, the request for hearing must be dismissed.

I. PROCEDURAL HISTORY

On December 19, 2003, the Departmental Appeals Board (DAB), Civil Remedies Division (CRD), received undated correspondence from Petitioner Paula M. Teague Caminita that was construed to be a request for hearing. The request was docketed and assigned to me for hearing and decision on December 30, 2003. I conducted a prehearing conference by telephone on February 3, 2004, the substance of which is recorded in my Order of February 9, 2004. Petitioner participated in the conference during which she was advised of her right to counsel and then waived that right. Counsel for the Inspector General (I.G.) advised me during the conference that the I.G.'s position is this case should be dismissed for untimely filing of a request for hearing and Petitioner's failure to state any issue that may be addressed at a hearing under the regulations. The I.G. proposed to file a motion to dismiss on these grounds. Because the I.G.'s motion is potentially dispositive on the issue of my jurisdiction, I set the briefing schedule reflected in my Order of February 9, 2004, to allow the parties to brief the issues before attempting to proceed on the merits.

On March 4, 2004, the I.G. timely filed her motion to dismiss on the two grounds articulated by counsel during the prehearing conference. The I.G. submitted I.G. exhibits (I.G. Ex.) 1 and 2 with her brief, and they are admitted in the absence of any objection by Petitioner. Pursuant to my Order of February 9, 2004, Petitioner was to submit any response and supporting evidence for my consideration not later than April 5, 2004. Petitioner filed no response to the I.G.'s motion. On May 11, 2004, I issued an order advising the parties that the record would be closed in 15 days and that I would proceed to make a decision on the I.G.'s motion to dismiss. Petitioner was advised by the May 11, 2004 Order that I had received no response from her to the I.G.'s motion and that she could make a submission until the record closed. No further filings have been received from either party, the record closed effective May 26, 2004, and I proceed to decision.

II. ANALYSIS

Petitioner filed no response to the I.G.'s motion to dismiss and has not disputed the facts alleged by the I.G. Accordingly, I accept the facts as alleged by the I.G. as true and susceptible of proof. The following facts, while not material to disposition of this case on the I.G.'s motion, are set forth to establish a context.

The I.G. advised Petitioner by notice letter dated September 30, 2003, that she was excluded from participation in Medicare, Medicaid, and all federal health care programs for the statutory minimum period of five years ⁽¹⁾ pursuant to section 1128(a)(3) of the Social Security Act (the Act), 42 U.S.C. � 1320a-7(a)(3). The exclusion was based on Petitioner's conviction pursuant to her plea in the Morgan County Circuit Court of Alabama, of one count of obtaining drugs by fraud and two counts of theft of a controlled substance. I.G. Exs. 1, 2. The September 30, 2003 notice was mailed to Petitioner's last known address, by first-class mail, and included the required advice as to the right to request a hearing within 60 days of receipt of the notice.

Following are my conclusions of law followed by the pertinent findings of fact and discussion.

A. Petitioner's request for hearing was untimely filed and this case must be dismissed.

The I.G.'s notice letter dated September 30, 2003, was sent pursuant to 42 C.F.R. � 1001.2002. Pursuant to 42 C.F.R. � 1005.2(c), there is a legal presumption that Petitioner received the I.G.'s notice on the fifth day after the date of the notice, unless there is a reasonable showing to the contrary. In this case, receipt is presumed to be Monday, October 6, 2003, as the fifth day after September 30, 2003, was Sunday, October 5, 2003. The 60-day period for Petitioner to request a hearing began on October 6, 2003 and closed on December 5, 2003. Petitioner's request for hearing was undated and not received at DAB, CRD, until December 19, 2003, 14 days after the period for filing a request for hearing expired. Petitioner has made no showing that she mailed the request for hearing within the 60-day period. Thus, I conclude that the request for hearing was not timely filed. Pursuant to 42 C.F.R. � 1005.2(e)(1), I must dismiss a request for hearing that is not timely filed.

B. Petitioner's request for hearing raises no issue that may properly be addressed at a hearing and this case must be dismissed.

Pursuant to 42 C.F.R. � 1001.2007, the only issues I may hear and decide are: (1) whether there is a basis for exclusion; and (2) whether the length of the exclusion is unreasonable.

Petitioner alleges in her request for hearing that "[t]here is incorrect data in the National Practitioner Data Bank Healthcare Integrity and Protection Data Bank. . . ." She states that she believes that the decision to exclude was based on the incorrect information in the data banks. Petitioner does admit in her request for hearing that her conviction was for drug charges. The I.G. alleges that Petitioner was convicted of drug-related charges and that is the basis for her exclusion pursuant to section 1128(a)(3) of the Act. Petitioner has not disputed the I.G.'s allegations. Thus, there appears to be no dispute as to the basis for Petitioner's exclusion. Because there is no dispute as to the basis for Petitioner's exclusion and the five-year period of exclusion is the minimum permitted by law, there is nothing for me to adjudicate. ⁽²⁾ Pursuant to 42 C.F.R. � 1005.2(e)(4), I must dismiss a request for hearing that fails to raise any issue which may properly be addressed in a hearing.

III. CONCLUSION

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

Keith W. Sickendick

Administrative Law Judge

1. The minimum period for an exclusion pursuant to section 1128(a) of the Act is not less than five years. Act, section 1128(c)(3)(B).

2. I am aware of no law granting me jurisdiction over the data banks referred to by Petitioner in her request for hearing or granting me the authority to direct changes in the data contained therein.