$05:Exclusion Case
Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD
Civil Remedies Division
In the Case of:
Julio M. Soto, M.D.,
Petitioner,
- v. -
The Inspector General.
DATE: April 18, 1996
Docket No. C-96-104
Decision No. CR418
DECISION
I dismiss Petitioner's request for a hearing. Petitioner has no
right to a hearing because his request for a hearing is untimely.
Petitioner has not shown good cause for not having made his request
timely.
I. Background
On May 17, 1991, the Inspector General (I.G.) sent a notice to
Petitioner advising Petitioner that he was being excluded from
participating in Medicare and other federally funded health care
programs, including Medicaid. I.G. Ex. 2. 1/ Petitioner did not
request a hearing to challenge the exclusion until January 26,
1996. In his request for a hearing, Petitioner averred that he did
not receive a copy of the I.G.'s notice of exclusion until January
16, 1996.
The I.G. moved to dismiss Petitioner's hearing request on the
grounds that Petitioner did not request a hearing timely and that
Petitioner has not demonstrated good cause for failing to make his
request timely. Petitioner opposed the motion.
II. Issues, findings of fact and conclusions of law
There are two issues in this case. First, is Petitioner entitled
to a hearing? Second, if Petitioner is not entitled to a hearing
because he did not make a timely request for a hearing, has he
established good cause for not making a timely request? In
concluding that Petitioner has not established any basis to be
given a hearing, I make the following findings of fact and
conclusions of law (Findings). I discuss my findings in detail,
below.
1. Petitioner would be entitled to a hearing if he had made
a request for a hearing within 60 days of his receipt of the I.G.'s
notice of exclusion.
2. An excluded individual is presumed to have received a
notice of exclusion that is delivered to the excluded individual's
address.
3. Petitioner received the I.G.'s notice ofexclusion on May
25, 1991.
4. Petitioner did not make a request for a hearing within 60
days of his receipt of the I.G.'s notice of exclusion and,
therefore, is not entitled to a hearing in this case.
5. Petitioner has not shown good cause for failing to make a
timely request for a hearing in this case.
III. Discussion
A. The circumstances under which Petitioner wouldbe entitled
to a hearing (Finding 1)
The I.G. excluded Petitioner pursuant to section 1128(b)(4) of the
Social Security Act (Act). An individual who is excluded under any
of the subsections of section 1128 of the Act has a right to an
administrative hearing to challenge the I.G.'s authority to impose
the exclusion and the length of the exclusion. Act, section
1128(f); see Act, section 205(b).
However, the right to a hearing is conditioned on the excluded
individual making a timely request for a hearing after receiving
notice of the I.G.'s exclusion determination. An excluded
individual or entity who fails to request a hearing timely loses
the right to a hearing. Under the regulations which were in effect
in 1991, when Petitioner was excluded, an administrative law judge
may dismiss a request for hearing that is not made by an individual
within 60 days from receipt by the individual of the I.G.'s notice
letter. 42 C.F.R. 498.40(a), 498.70(c). 2/
B. The presumption that an excluded individual hasreceived
a notice of exclusion that is delivered to that individual's
address (Finding 2)
The Act imposes on the I.G. the duty to provide an excluded
individual with þreasonable noticeþ of that person's exclusion.
Act, section 1128(f). The duty to provide an individual with
reasonable notice of an exclusion is not a duty to serve that
individual personally with the notice of exclusion. It is a duty
to take reasonable steps to assure that the notice is delivered to
the excluded individual. That duty is discharged by sending the
notice in the United States mail to the excluded individual's
mailing address. Sunil R. Lahiri, M.D., DAB CR296, at 16 (1993);
Charles K. Angelo, Jr., M.D., DAB CR290, at 13 (1993); see Louis W.
DeInnocentes, Jr., M.D., DAB CR247, at 36 - 40 (1992).
In opting to require the I.G. to provide an excluded individual
with reasonable notice of his or her exclusion, Congress made a
policy decision that it would be inappropriate to impose on the
I.G. the more demanding burden of obtaining personal service on the
excluded individual. The overriding purpose of the exclusion law
is to protect federally funded health care programs and their
beneficiaries and recipients from untrustworthy individuals. It
might frustrate the purpose of the law to impose a personal service
requirement on the I.G., because in some cases, clever or lucky
individuals could avoid an exclusion by evading personal service,
or by being unavailable to be served. Lahiri at 17; DeInnocentes
at 38 - 39.
Delivery of a notice of exclusion to an excluded individual's
address is all but conclusive evidence that the individual received
the notice. Lahiri at 14 - 15. Conceivably, there might be a
circumstance where an excluded individual proves that he or she did
not receive a notice, despite it having been delivered to his or
her address. For example, an excluded individual might prove that
the person who physically received the notice destroyed it without
advising the excluded person that the notice was received. But the
burden lies on the excluded individual to prove the existence of an
extraordinary event to rebut the heavy presumption of receipt that
follows from the fact of delivery of a notice to the excluded
individual's address. Id.
A simple denial by an excluded individual that he or she received
a notice, in the face of proof that the notice was delivered to
that individual's address, will not suffice to overcome the
presumption of receipt that flows from proof of delivery of a
notice. If the presumption could be overcome merely by the
excluded individual denying receipt of the notice, then the
presumption of receipt would be meaningless. In most circumstances
where an excluded individual denies receipt of an exclusion notice
despite proof of delivery of the notice to that individual's
address, the I.G. would be unable to adduce evidence that would
rebut the denial of receipt.
C. Petitioner's receipt of the I.G.'s exclusion notice and
his failure to request a hearing timely (Findings 3, 4)
I find that Petitioner received the I.G.'s exclusion notice on May
25, 1991. I base my conclusion on: (1) the presumption of receipt
that results from the I.G. having proved that the notice was
delivered to Petitioner's address on May 25, 1991 and (2)
Petitioner's failure to overcome the presumption of receipt.
Petitioner had 60 days from May 25, 1991 to request a hearing in
this case. He failed to exercise his right to request a hearing
within the 60-day period.
The I.G. sent the notice of exclusion to Petitioner on May 17,
1991. The I.G. sent the notice to Petitioner's address. The
address on the notice, 124 Scarsdale Road, Crestwood, New York
10707, is an address to which notices were sent to Petitioner by
the I.G., the New York State Department of Social Services, and the
Commissioner of Education of the State of New York. I.G. Exs. 1,
2, 4, 5. Petitioner has not denied that the 124 Scarsdale Road
address was an address at which he received mail in 1991. Indeed,
the I.G. had previously sent Petitioner a notice of the I.G.'s
intent to impose an exclusion at the 124 Scarsdale Road mailing
address, and Petitioner does not deny having received this previous
notice. I.G. Ex. 1.
The I.G. sent the notice of the exclusion to Petitioner's address
by certified mail, return receipt requested. I.G. Ex. 3. An
individual at Petitioner's address signed for the notice on May 25,
1991, thus proving delivery of the notice to Petitioner's address
on that date. Id.
Petitioner avers that neither he, his wife, nor their children
signed the return receipt for the notice. P. Exs. 1, 2. Both
Petitioner and Petitioner's wife deny seeing the notice until years
after the date of the notice. Id. Petitioner argues that his
January 26, 1996 hearing request is timely, based on his contention
that he did not see the I.G.'s notice of exclusion until years
after it was delivered to his address.
For purposes of this decision, I accept as true the assertions by
Petitioner and his wife that neither of them nor any of their
children signed the return receipt for the notice. But the fact
that someone other than Petitioner, his wife, or their children may
have signed the return receipt does not vitiate the proof, in the
form of the return receipt, that the notice was delivered to
Petitioner's address on May 25, 1991.
The proof of delivery establishes a presumption that Petitioner
received the notice on May 25, 1991. The denial by Petitioner and
his wife, without elaboration or explanation, that neither of them
saw the notice until years after its delivery is insufficient to
overcome this presumption. Petitioner has not offered any evidence
of extraordinary circumstances which precluded him from seeing the
notice after delivery of the notice to Petitioner's address.
Moreover, Petitioner's denial that he received the notice is not
credible. He has offered inconsistent statements as to when he
first saw the I.G.'s exclusion notice. Petitioner has not
attempted to explain the discrepancies in the various recitations
which he has offered, or which have been offered on his behalf, of
the date when Petitioner first saw the I.G.'s May 17, 1991
exclusion notice. In his request for a hearing, Petitioner avers
that he first saw the May 17, 1991 exclusion notice on January 16,
1996. He asserts that he received a copy of the notice only after
making numerous calls to various Medicare offices. However, in his
affidavit, Petitioner does not recite when he first saw the I.G.'s
exclusion notice, except to say that he þnever saw the letter in
question until years . . . [after it was mailed to him].þ P. Ex.
1. In her affidavit, Petitioner's wife says that Petitioner first
showed her a copy of the I.G.'s exclusion notice in 1995. P. Ex.
2.
D. The absence of good cause for Petitioner's failure to
request a hearing timely (Finding 5)
Under regulations which applied when Petitioner received the I.G.'s
notice of exclusion, an administrative law judge can extend a
deadline for filing a hearing request where the excluded individual
establishes good cause for not making the request timely. 42
C.F.R. 498.40(c). 3/
The term þgood causeþ is not defined in the regulations. It has
been held to mean circumstances beyond an excluded individual's
ability to control which prevent that individual from requesting a
hearing timely. Hospicio San Martin, DAB 1554, at 5 (1996). 4/
Petitioner has not established the presence of good cause for his
failure to timely request a hearing in this case. He has not made
any showing that he was prevented from requesting a hearing timely
by circumstances that were beyond his ability to control. He has
not offered a meaningful explanation for his assertion that he did
not see the I.G.'s exclusion notice when it was delivered to his
address.
Furthermore, Petitioner's assertion that he did not request a
hearing until January 1996, because he was not aware until then
that he had been excluded from participating in Medicare is not
credible. Even if Petitioner misplaced or did not read the
exclusion notice which he received on May 25, 1991, he received
additional notice of the Medicare exclusion, within a few months
from May 25, 1991.
After the I.G. sent the exclusion notice to Petitioner, the New
York Department of Social Services advised Petitioner that he was
being excluded from participating in the New York Medicaid program.
I.G. Ex. 4. The exact date of that notice is unclear, inasmuch as
the copy offered by the I.G. as evidence in this case is undated.
However, the copy bears the date stamp of the HHS Office of
Investigations, New York Field Office, and the date stamped on the
copy is September 27, 1991. Id. at 1. From this, I conclude that
Petitioner was sent the New York Department of Social Services
notice on or before September 27, 1991.
The New York Department of Social Services notice advised
Petitioner that:
. . . you have been excluded from participation in the
Medicare program by the Office of Inspector General, Department of
Health & Human Services.
I.G. Ex. 4 at 1. It advised Petitioner further that:
[t]his determination was made based upon the written notice
previously issued to you by the Department of Health & Human
Services on 05/17/91.
Id. Petitioner has not denied receiving this additional notice.
IV. Conclusion
I conclude that Petitioner did not request a hearing timely, and
therefore, is not entitled to a hearing. I conclude also that
Petitioner has not established good cause for his failure to
request a hearing timely. Therefore, I dismiss Petitioner's
request for a hearing.
______________________
Steven T. Kessel
Administrative Law Judge
1. The I.G. submitted five exhibits (I.G. Exs. 1 - 5) to
support her motion to dismiss Petitionerþs request for a hearing.
Petitioner submitted an affidavit from Petitioner and an affidavit
from Petitionerþs wife, Alice Soto, in opposition to the motion.
Petitioner did not designate these affidavits as exhibits. I am
designating the affidavit of Petitioner as P. Ex. 1,and the
affidavit of Petitionerþs wife as P. Ex. 2. I am receiving into
evidence I.G. Exs. 1 - 5 and P. Exs. 1, 2 on the issues of whether
the I.G. provided Petitioner with notice of his exclusion, and
whether Petitioner established good cause for not requesting a
hearing timely.
2. Regulations which became effective in 1992, and which apply
to exclusions imposed after the regulations became effective, also
give an excluded individual 60 days from receipt of the I.G.þs
notice to request a hearing. 42 C.F.R. 1005.2(c).
3. Arguably, under the regulations which replaced the Part 498
regulations for cases involving the I.G., and which became
effective in 1992, an administrative law judge would not have the
authority to extend a deadline for making a hearing request. The
current regulations provide that an administrative law judge þwillþ
dismiss a request for a hearing where the request is not made
timely. 42 C.F.R. 1005.2(e)(1).
4. Although the Hospicio San Martin case involves the Health
Care Financing Administration (HCFA), and not the I.G., it is
applicable here because the Part 498 regulations continue to govern
cases involving HCFA. Hospicio San Martin and this case therefore
involve application of the same regulation, 42 C.F.R. 498.40(c),
in analogous circumstances.