SUBJECT:

Samuel E. Kilgore, R.Ph,

Petitioner,

The Inspector General.

DECISION

Here, Petitioner, Samuel E. Kilgore, R.Ph., asks review of a five-year-old Inspector General (I.G.) determination to exclude him from participation in Medicare, Medicaid, and all federal health care programs under section 1128(a)(1) of the Social Security Act (Act). The I.G. has moved for dismissal. For the reasons discussed below, I dismiss Petitioner's hearing request as untimely.

Discussion

Petitioner was a pharmacist who participated in the Medicaid program. On March 29, 2001, he pled guilty in state court to one count of Medical Assistance (Medicaid) Fraud. I.G. Ex. 1. Thereafter, the I.G. sent Petitioner a letter dated August 31, 2001, advising that, pursuant to section 1128(a)(1) of the Act, he was excluded from participating in Medicare, Medicaid, and all federal health care programs for 20 years because of his conviction of a criminal offense related to the delivery of an item or service under the Medicaid program. With the notice letter, the I.G. sent Petitioner an explanation of his appeal rights: Petitioner was entitled to a hearing before an administrative law judge if he filed a written request for review within sixty days after receipt of the notice. The date of receipt 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. �� 1001.2007(b), 1005.2(c); See I.G. Ex. 7 (Byer Decl. � 8).

Petitioner did not file his request for hearing until more than four years later, February 15, 2006. His appeal has been assigned to me for resolution. I held a prehearing telephone conference on April 18, 2006, at which the I.G. indicated that he would ask that the hearing request be dismissed as untimely. I set a briefing schedule on this and other issues raised. See Order (April 25, 2006).

Thereafter, the I.G. filed his Motion to Dismiss or, in the Alternative, Motion for Summary Affirmance (I.G. Motion), accompanied by 4 exhibits (I.G. Exs. 1-4). Petitioner responded with his Brief in Opposition (P. Br.), accompanied by 16 exhibits (P. Exs. 1-16). The I.G. filed a reply brief (I.G. Reply), with I.G. Exs. 5-8. Petitioner then sought leave to file a sur-reply to "address the matters raised in the exhibits and testimony attached to the I.G. Reply, and to submit additional evidence on those matters." ⁽¹⁾ I granted Petitioner's request and he filed his sur-reply, with two additional exhibits, P. Exs. 17-18.

In reaching my decision, I have reviewed and considered I.G. Exs. 1-8, and P. Exs. 1-18. I have admitted these exhibits into the record.

1. Petitioner's hearing request must be dismissed pursuant to 42 C.F.R. � 1005.2(e)(1) because it was not timely filed. ⁽²⁾

The regulations governing these proceedings provide that an individual excluded under section 1128 of the Act is entitled to a hearing if he files a written request for hearing within 60 days of receiving the exclusion notice. 42 C.F.R. �� 1001.2007(b), 1005.2(c). The ALJ must dismiss a hearing request that is not timely filed. No exception is permitted, even upon a showing of good cause. 42 C.F.R. � 1005.2(e)(1).

Petitioner asserts that he did not receive the notice letter in 2001, most likely because it was sent to an incorrect address. The parties agree that the letter was addressed to Petitioner at "25 Country Club Drive, Union Point, GA." Petitioner, however, asserts that he never resided at that address. P. Ex. 1, at 2 (Kilgore Decl. � 4). He concedes that he once resided at 35 Country Club Drive, Union Point, Georgia, but declares - and presents solid supporting evidence to show - that he moved to a different town, Greensboro, Georgia, in 1994, more than seven years before the notice was mailed. P. Ex. 1, at 1-2 (Kilgore Decl. � 3); P. Ex.1, at 7-8, 10-14; P. Ex. 17 (Thompson Decl.). For his part, the I.G. also presents some solid evidence that, whether he resided there or not, Petitioner was using the "25 Country Club Drive" address in 2001. The Georgia State Board of Pharmacy listed that as Petitioner's address in September 2001. I.G. Ex. 5. A Bench Warrant for Petitioner's arrest, issued by the Superior Court for DeKalb County, Georgia, on December 4, 2000, also lists that as Petitioner's address. I.G. Ex. 6. ⁽³⁾ Petitioner does not satisfactorily explain why, more than six years after his relocation, both the pharmacy board and the state court - institutions with which Petitioner must have had significant contact - would have relied on the same incorrect and un-corrected address. The I.G. also points out that, in 2001, the notice letter was mailed and not returned to the I.G., suggesting that it was received. I.G. Ex. 7, at 2 (Byer Decl. �� 5-7).

None of this evidence establishes conclusively that Petitioner did or did not receive the notice in 2001. I need not resolve that issue, however, inasmuch as I find that, in May 2005, when Petitioner unquestionably received a copy of the notice letter, he did not timely request review.

According to Petitioner, he first learned of his exclusion long after the time the notice letter was mailed. He is vague as to when he actually learned: "I learned of my OIG exclusion when I began seeking employment as a pharmacist after my license was reinstated by the Georgia State Board of Pharmacy." P. Ex. 1, at 5 (Kilgore Decl. � 20). His state license was reinstated in May 2004. Id. at 3 (Kilgore Decl. � 9); P. Ex. 6. In a letter to the I.G.'s Office of Investigations and in a letter and in an e-mail sent to the I.G.'s Public Affairs Office ten months later (March 31, 2005), however, he wrote that he had "just learned" and "just found out" that he was on the exclusion list. P. Exs. 7, 8, 9; I.G. Ex. 4.

In any event, the I.G. Public Affairs Officer responded to Petitioner's March 31, 2005 e-mail the same day, forwarding the inquiry to the I.G.'s Sanctions Office. P. Ex. 9; I.G. Ex. 4, at 1. The following day, April 1, 2005, Kathleen Pettit, from the I.G. Office of Investigations, sent Petitioner an e-mail explaining that he had been excluded for a period of 20 years based on his criminal conviction, and that the exclusion was mandated by law - section 1128(a)(1) of the Social Security Act. She told him that the notice of exclusion had been mailed to him with an attachment that detailed the effect of the exclusion, his appeal rights, and instructions on how to apply for reinstatement. P. Ex. 10. Petitioner admits that he received Ms. Pettit's e-mail. P. Ex. 1, at 4 (Kilgore Decl. � 14).

Three weeks later, in an April 21, 2005 letter to "follow up" on the e-mail correspondence, Petitioner asked Ms. Pettit to send him a copy of the notice letter. P. Ex. 11. On May 25, 2005, Joann M. Francis, an Investigations Analyst with the Office of Investigations, mailed Petitioner a copy of the August 31, 2001 exclusion notice. ⁽⁴⁾ P. Exs. 14, 15. Petitioner admits receiving the notice letter in "late-May 2005," but claims, "The notice attached to Petitioner's Brief at Exhibit 15 did not include the 'detailed explanation of the authority for [his] exclusion, its effect, and [his] appeal rights' which the letter purported to include as an enclosure and incorporate by specific reference." P. Ex. 1, at 4, 5. In response to this claim, the I.G. submits a declaration from Investigations Analyst Francis, who declares that she received Petitioner's April 21, 2005 request for a copy of his August 31, 2001 notice of exclusion. On or about May 25, 2005, she mailed a copy of that notice to Petitioner at his address. The notice she mailed "contained both the letter notifying [Petitioner] of his exclusion and the attachment containing a detailed explanation of his exclusion and his appeal rights." I.G. Ex. 8 (Francis Decl. �� 3-5).

The I.G. also submits a declaration from Maureen R. Byer, Director of the Exclusions Staff, explaining her office's "policy and practice" upon receiving a request from an excluded individual for a copy of his exclusion notice: the assigned analyst mails a copy of the notice of exclusion "which consists of both the letter notifying the individual of the exclusion and the attachment containing a detailed explanation of the exclusion and the individual's appeal rights." I.G. Ex. 7, at 2 (Byer Decl. � 8).

I afforded Petitioner the opportunity to file a sur-reply, in part, so that he could respond to the evidence that I.G. staff deliberately included the explanation of his appeal rights with the notice letter mailed to him on May 25, 2005, as is their practice every time they send out a notice letter. Although he responded at length to the I.G.'s evidence as to his receipt of the notice letter in 2001, Petitioner offers no response to the declarations of I.G. staff establishing that an explanation of his appeal rights accompanied the copy of the notice letter they sent him in May 2005.

The regulations presume that a notice is received within 5 days of its mailing. 42 C.F.R. � 1005.2(c). The regulations also define "notice" as including a statement of appeal rights, so implicit in this presumption of receipt is the presumption that the notice includes a statement of the party's appeal rights. 42 C.F.R. � 1001.2002(c). I.G. staff buttress this presumption with their declarations that Analyst Francis, in fact, included the attachment with the letter. Petitioner's mere assertion that he did not receive the appeals attachment is insufficient to counter this presumption. See e.g., Dalene Sue Sinnott, DAB CR1191 (2004); Beverly Jean Taylor, C.N.A., DAB CR1115 (2003) ("self-serving assertions lack probative value to overcome the presumption set forth in the regulation"); Dulal Bhattacharjee, M.D., DAB CR1107 (2003).

Moreover, Petitioner's assertion is striking for its lack of "probative value." He provides no detail as to what, specifically, was included in the correspondence he received from the I.G. in May 2005, claiming only that, "The notice attached to Petitioner's Brief at Exhibit 15 did not include the 'detailed explanation of the authority for [his] exclusion, its effect, and [his] appeal rights' which the letter purported to include as an enclosure and incorporate by specific reference." P. Ex. 1, at 5. This very general statement might mean that he only received a two page letter without attachments, but it might also mean that he did not consider the attachments sufficiently "detailed," or that only some of the listed information was included. Petitioner had ample opportunity to further explain what he received, particularly in response to the unequivocal statements from Analyst Francis and Director Byer.

Moreover, Petitioner's actions - or inaction - following his admitted receipt of the letter strongly supports the conclusion that the appeals information was included with the letter. Petitioner admits that he received the notice letter at the end of May 2005. The letter specifically says

A detailed explanation of the authority for this exclusion, its effect, and your appeal rights is enclosed and is incorporated as part of this notice by specific reference. You should read this document carefully, act upon it as necessary, and retain it for future reference.

P. Ex. 15, at 1. Petitioner thus knew that he should have received an attachment containing critical information. Had the attachment not been included, he well knew how to contact, by regular mail and by e-mail, the individuals in the I.G.'s office who could supply the purportedly missing information. Yet he did not notify anyone from that office that the materials were missing, nor request that they be supplied. That he did not point out the purported omission strongly suggests that the documents referred to were included in the mailing. See Sharon R. Anderson, D.P.M., DAB No. 1795, at 4 n.1 (2001) (A settlement agreement in a related proceeding gave Petitioner notice of a hearing right that she made no attempt to exercise until years later, supporting the I.G.'s claim that Petitioner received the appropriate notice). ⁽⁵⁾

I also reject Petitioner's argument that his earlier correspondence (prior to the February 2006 hearing request) constitute a hearing request. According to Petitioner, he "began requesting a hearing on the length of his exclusion as soon as he learned of it." P. Sur-reply at 4 n.2. Based on the record in front of me, this is simply not so. Petitioner obviously wanted to be allowed to participate in the Medicare program, and complained about the exclusion, without even considering the technical requirements for a hearing request, found at 42 C.F.R. � 1005.2. However, I see no indication in his correspondence that he was requesting an appeal. Moreover, the regulations afford me little discretion. If the hearing request "fails to raise any issue which may properly be addressed in a hearing," I am directed to dismiss. 42 C.F.R. � 1005.2(e)(4). Even were I to construe his earlier correspondence to the I.G. as a hearing request, the correspondence did not present issues that I could properly address in a hearing.

Conclusion

Because I find that Petitioner did not request a hearing until almost nine months after he received the I.G.'s exclusion notice, I have no choice but to dismiss his hearing request. Petitioner's request for hearing is therefore dismissed pursuant to 42 C.F.R. � 1005.2(e)(1).

Carolyn Cozad Hughes

Administrative Law Judge

1. Although Petitioner titled its request "Petitioner's Request for Hearing and for Leave to File Surreply," Petitioner did not, in fact, request an in-person hearing. Instead, Petitioner suggested that an oral argument would be useful. However, in their multiple written arguments and witness declarations, the parties have had ample opportunity to present their positions. Additional argument serves no useful purpose, and would only further delay resolution of a case that is based on events that occurred more than five years ago. Nor have the parties suggested any need to present additional evidence at an in-person hearing or otherwise. As discussed below, the relevant question here is whether Petitioner has come forward with evidence sufficient to rebut a presumption that he received a complete notice of exclusion. That question may be resolved based on documentary evidence, written declarations, arguments of the parties, and the applicable law and regulations. See Beverly Jean Taylor, C.N.A., DAB CR1115 (2003).

2. I make this one finding of fact/conclusion of law to support my decision in this case.

3. In an e-mail to the I.G.'s Public Affairs Office, Petitioner listed his current address, and then writes "formally (sic) 25 Country Club Dr., Union Point, Ga. 30669." I assume that he meant to say "formerly" instead of "formally." He later explained that the "25" was a typographical error, and that he meant to write "35 Country Club Drive." P. Ex. 9; P. Ex. 1, at 3-4 (Kilgore Decl. � 13); I.G. Ex. 4; P. Br. at 6 n.4.

4. In a letter to the I.G. Office of Investigations, dated May 19, 2005, Petitioner complained that "I have been requesting a copy of the exclusion notice for almost two months from the OIG . . . ." P. Ex. 13, at 1. This seems to have been an exaggeration. The evidence before me shows that Petitioner had requested a copy of the notice just once, in his April 21, 2005 letter, and the I.G. responded fairly promptly, sending the notice to him on May 25, 2005.

5. Although I need not decide the issue here, I am not convinced that Petitioner could prevail even if he had demonstrated that no explanation of his appeal rights accompanied the notice letter. I recognize that mere awareness of an exclusion does not substitute for actual notice. Mark K. Mileski, DAB No. 1945 (2004). In Mileski, the petitioner did not receive a notice letter but learned that he had been excluded several months later, when a letter from the Office of Personnel Management notified him of his debarment from participation in the Federal Employees Health Benefits Program based on his exclusion. He wrongly assumed that his exclusion was because his pharmacy license had been suspended, and took no action. When he regained his license and sought reinstatement, he learned that he had been excluded for five years based on his felony conviction, and that the time for appeal had long passed. He requested a copy of the notice, and filed his appeal within days of receiving it. The Board held that even though he had earlier knowledge of his exclusion, the time for filing his appeal ran from his receipt of the notice. In this case, Petitioner could claim that he was in Mileski's position only until April 1, 2005, when Kathleen Pettit sent him a written statement (via e-mail) setting forth the length and bases for his exclusion. She explained that the I.G. mailed him the notice, which included his appeal rights. Then, in late May 2005, Petitioner received the actual notice letter. He took no action until almost nine months later, filing his hearing request on February 15, 2006.