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Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD
Civil Remedies Division
IN THE CASE OF  


SUBJECT:

Arthur H. Halprin, M.D.,

Petitioner,

DATE: May 23, 2000
                                          
             - v -

 

The Inspector General

 

Docket No.C-00-197
Decision No. CR671
DECISION
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I grant the motion of the Inspector General (I.G.) to dismiss the request for hearing filed by Petitioner, Arthur H. Halprin, M.D. Petitioner has no right to a hearing because his request for a hearing is untimely.

Background and Undisputed Material Facts

Petitioner was notified by the I.G., via letter dated September 30, 1999, that he was being excluded from participation in Medicare, Medicaid, and all federal health care programs for a period of 10 years. Petitioner was specifically informed that the exclusion was imposed pursuant to section 1128(a)(2) of the Social Security Act (Act), 42 U.S.C. � 1320a-7(a)(2). The I.G. maintains that the exclusion notice letter was mailed via first class mail in accordance with 42 C.F.R. � 1001.202, and included information concerning Petitioner's appeal rights as required 42 C.F.R. � 1001.2002(c). The letter specifically apprised Petitioner that a request for hearing must be made, in writing, within 60 days of the date Petitioner received the letter of exclusion pursuant to 42 C.F.R. � 1005.2(c).

Petitioner sent a letter to the Civil Remedies Division of the Departmental Appeals Board (DAB) dated December 30, 1999. In that letter, Petitioner stated that, "I would like to apologize for an oversight on my part. I received the letter from William M. Libercci in October not realizing I had only 60 days to respond." Petitioner also stated in the letter that, "I would greatly appreciate it if you would reconsider this action by rescinding it or shortening the duration or removing this restriction if my conviction is overturned on appeal."

Upon receipt of the letter, the Civil Remedies Division sent an acknowledgment letter to the parties and a prehearing conference was subsequently held on February 17, 2000. Both parties were represented by counsel during the telephone prehearing conference. Counsel for the I.G. raised the issues of the untimeliness and the inadequacy of hearing request. Counsel for Petitioner indicated that there were facts of which the I.G. was not aware which related to the timeliness of the hearing request. In addition, counsel for Petitioner stated that discussion with counsel for the I.G. could possibly resolve the matter. Based on those representations, I asked that the I.G. file a written motion to dismiss and I provided Petitioner time to respond.

On March 1, 2000, the I.G. filed its Motion to Dismiss accompanied by three exhibits (I.G. Exs. 1-3). Petitioner was given until March 15, 2000 to respond to the I.G.'s Motion to Dismiss. To date, Petitioner has not filed any form of response to the I.G.'s Motion. As there has been no response from Petitioner, I am admitting I.G. Exs. 1-3 into evidence.

Issue

The issue in this case is whether Petitioner filed a timely request for hearing pursuant to 42 C.F.R. � 1005.2.

Findings of Fact and Conclusions of Law

Based on the evidence before me, my review of the applicable law, and consideration of the uncontradicted arguments made by the I.G., I make the following findings of fact and conclusions of law:

1. By letter dated September 30, 1999, the I.G. notified Petitioner that he was being excluded from participation in Medicare, Medicaid, and all federal health care programs.

2. The notice letter was sent via first class mail and in accordance with 42 C.F.R. � 1001.2002. Petitioner is deemed to have received notice five days from the date of the letter unless there is a reasonable showing to the contrary. 42 C.F.R. � 1005.2(c).

3. Petitioner was specifically apprised that a written request for a hearing must be filed within 60 days of receiving the I.G.'s exclusion letter pursuant to 42 C.F.R. � 1005.2(c). Petitioner had until December 6, 1999 to file a request for hearing.

4. Petitioner sent a letter to the DAB dated December 30, 1999 regarding the I.G. notice letter. The letter filed by Petitioner was untimely in that it was beyond the time period specified by the applicable regulations. Petitioner admitted that his response letter was not timely filed.

5. Petitioner did not file a request for hearing within 60 days of his receipt of the I.G.'s notice as required by 42 C.F.R. � 1005.2(c). Petitioner is therefore not entitled to a hearing in this case.

Discussion

By letter dated September 30, 1999, the I.G. notified Petitioner that he was being excluded from participation in Medicare, Medicaid and all federal health care programs for a period of 10 years. The notice was sent via first class mail in accordance with the regulations and Petitioner is deemed to have received the notice five days after the date of the letter, unless there is a reasonable showing to the contrary. 42 C.F.R. �� 1001.2002 and 1005.2(c).

The I.G. notice informed Petitioner of his right to request a hearing before an Administrative Law Judge and specified that such a request must be made, in writing, within 60 days of receipt of the I.G.'s letter of exclusion. Petitioner had until December 6, 1999, to file a request for hearing, under the applicable regulations.

Petitioner filed a letter with the DAB on December 30, 1999, which was received by DAB on January 3, 2000. Petitioner's letter was untimely in that it was received after December 6, 1999, the last day to timely file a request for hearing.

In its motion to dismiss, the I.G. argues that Petitioner himself admits that his December 30, 1999 letter was not timely filed. The I.G. also cites the cases of Bernard Harmon, DAB CR435 (1996) and Julio M. Soto, DAB CR418 (1996) to support its argument that under the regulations applicable to this case there are no grounds to extend the time for Petitioner to file a hearing request.

Petitioner was afforded an opportunity to respond to the I.G. Motion to Dismiss. Petitioner did not respond to the I.G.'s motion despite the fact that he represented there were facts which related to the very issue of whether the request for hearing was filed in a timely manner.

Thus, the facts established by the evidence and convincingly argued by the I.G., remain undisputed. Petitioner was require to file a request for hearing before an Administrative Law Judge within 60 days of receiving the notice of exclusion. He did not do so.

Accordingly I grant the I.G.'s Motion for Dismissal and I order that this case be dismissed.(1)

JUDGE
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Alfonso J. Montano
Administrative Law Judge

FOOTNOTES
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1. The I.G. also argued that the letter submitted by Petitioner did not constitute a valid request for hearing. Analysis of that issue is not warranted in this case as it is my decision that the case should be dismissed because Petitioner did not file a timely request for hearing.

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