DEPARTMENT OF HEALTH AND HUMAN SERVICES
Departmental Appeals Board
Civil Remedies Division
In the Case of:
David L. Golden, M.D.,
Petitioner,
- v. -
The Inspector General.
DATE: November 17, 1989
Docket No. C-129
DECISION
This case is before me on Petitioner's request for a hearing challenging his
exclusion from participation as a
provider in the Medicare and Medicaid programs. I am dismissing the request
because it was not timely
filed and I do not have good cause to allow a late filing.
By letter dated June 14, 1987, the Inspector General ("I.G.") notified
Petitioner that he was being
suspended from participation in the Medicare and Medicaid programs for three
years, pursuant to Section
1128(a) of the Social Security Act, 42 U.S.C. 1320a-7(a). The reason provided
for Petitioner's exclusion
was his conviction in a Louisiana state court of an offense related to his participation
in the Medicaid
program. Petitioner requested a hearing by letter dated June 5, 1989.
On October 2, 1989, the I.G. moved to dismiss the Petitioner's hearing request,
arguing that it was not
timely filed, and that Petitioner had not shown good cause for the untimely
filing. Petitioner did not
respond to the I.G.'s motion.
ISSUES
1. Whether Petitioner's hearing request was timely filed.
2. Whether Petitioner had "good cause" for not timely filing his request for hearing.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
1. On June 4, 1987, the I.G. notified Petitioner that he was being excluded
from participation as a provider
in the Medicare and Medicaid programs (Notice).
2. Petitioner received the I.G.'s Notice on June 16, 1987.
3. The I.G.'s Notice advised Petitioner that if he wanted a hearing on his
exclusion, he must file his request
within 60 days of his receipt of the Notice.
4. By letter dated June 5, 1989, Petitioner requested a hearing on his exclusion.
5. Petitioner did not file a timely request for a hearing.
6. Petitioner has not shown good cause for allowing his hearing request to be received out of time.
ANALYSIS
The I.G. has moved for summary disposition of Petitioner's request for a hearing.
The I.G. contends that
there is no material fact in dispute, that Petitioner's request was out of time,
and that there is no good cause
to allow Petitioner's untimely request. Petitioner did not respond to the I.G.'s
motion. In his request for a
hearing, he alleged that he had not received the I.G.'s Notice. At a prehearing
telephone conference on
August 28, 1989, he indicated that he would attempt to prove that the person
who signed a United States
Postal Service certified mail receipt for the I.G.'s Notice was not Petitioner's
employee and thus could not
receive mail for him.
The I.G. filed in support of its motion copies of certified official documents
relating to Petitioner's 1986
state conviction for Medicaid fraud and copies of correspondence concerning
his conviction and
subsequent exclusion as a provider from the Medicare and Medicaid programs.
The I.G. also submitted a
copy of an affidavit by one of his program analysts describing the above-mentioned
correspondence and
attaching other related documents.
Most significant of all of these submissions were copies of postal receipts
and a letter signed by a Nidga
Huggins. On June 16, 1987, Ms. Huggins receipted for the I.G.'s Notice. I.G.
Exhibits (Ex.) 7, 8. On July
10, 1987, Ms. Huggins receipted for a letter to Petitioner from the Louisiana
Department of Human
Resources advising him that the State was extending a previous one-year exclusion
from participation as a
provider in the Medicaid program to a term coinciding with the three-year term
imposed and directed by
the I.G., and enclosing a copy of the I.G.'s Notice. I.G. Ex. 9. On October
19, 1987 Ms. Huggins wrote to
the Louisiana Board of Medical Examiners to return an unopened certified letter
because Petitioner was
"unable to receive his own mail at the present time." Affidavit of
William J. Hughes, Attachment 7.
These documents show that during the period in question Ms. Huggins acted in
the capacity of someone
who received Petitioner's mail for him. Not only did she receipt for his mail,
but when he was "unable to
receive. . . mail," she returned it. Petitioner did not dispute the authenticity
of these documents, nor did he
offer any proof to refute the conclusion that these documents prove that he
received the I.G.'s Notice in
June 1987. Thus, I find that he did receive the Notice in June 1987 and that
his hearing request
approximately two years later was out of time.
Although Petitioner does not have a right to a hearing in this case, I have
authority to grant him a hearing if
he demonstrates good cause for not timely filing a hearing request. However,
Petitioner has not credibly
offered any cause for not timely filing his hearing request.
CONCLUSION
For the reasons above stated, I find that Petitioner's hearing request was
untimely filed, and in the absence
of good cause to allow such late filing, I dismiss his request.
_______________________________
Steven T. Kessel
Administrative Law Judge