Skip Navigation


CASE | DECISION | JUDGE

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


SUBJECT:

Jeffrey A. Wejrowski, R.Ph.,

Petitioner,

DATE: July 3, 2001
                                          
             - v -

 

The Inspector General

 

Docket No.C-01-234
Decision No. CR790
DECISION
...TO TOP

 

DECISION

I dismiss the hearing request submitted by Jeffrey A. Wejrowski, R.Ph. (Petitioner). Petitioner has no right to a hearing because his hearing request is untimely.

I. Background

By letter dated April 30, 1999, the Inspector General (I.G.) notified Petitioner that he was being excluded for 10 years from participation in the Medicare, Medicaid, and all federal health care programs (Medicare and Medicaid) as defined in section 1128B(f) of the Social Security Act (Act). The I.G.'s notice letter stated that Petitioner was being excluded based on his conviction in a State court of a criminal offense related to the Medicaid program. Pursuant to sections 1128(a)(1) and 1128(c)(3)(B) of the Act, a conviction of a criminal offense related to the delivery of an item or service under the Medicaid program mandates a minimum five-year period of exclusion. The I.G. excluded Petitioner for 10 years because the I.G. determined that two aggravating factors existed in his case justifying a lengthier exclusion: 1) the acts resulting in Petitioner's conviction resulted in financial loss to a government program of $1500 or more; and, 2) the sentence imposed by the State court included incarceration. 42 C.F.R. �� 1001.102(b)(1), (5).

Petitioner filed an "application/petition for termination/reduction of the exclusion or exclusion period" on December 5, 2000 with both my office and the Office of the Inspector General. In this request, which was received and processed by the Civil Remedies Division as a hearing request, Petitioner requested termination of his exclusion or a reduced period of exclusion. Petitioner admitted, among other things, that he had been convicted of Medicaid fraud and that he had been sentenced to incarceration and had been required to repay more than $54,000 in restitution. However, Petitioner stated that his pharmacy license had been restored to him and that he had been offered employment as a pharmacist if his exclusion could be terminated. Petitioner asserted that there was no basis to continue his exclusion, citing in support of his assertion his positive probation officer's report and his belief that he could reasonably assure, given the job offer he received, that the type of actions which formed the basis for his conviction would not recur.

This case was originally assigned to Administrative Law Judge Joseph K. Riotto. On April 26, 2001, the case was reassigned to me. I note that the staff attorney assigned to the case conducted a telephone prehearing conference for Judge Riotto on January 24, 2001. During the conference, the parties agreed that the case could be decided on a written record. The I.G. submitted a "motion to dismiss and for summary disposition and brief in support" (I.G. Br.) on March 30, 2001, accompanied by four exhibits (I.G. Exs. 1 - 4). In the absence of objection by Petitioner, I admit I.G. Exs. 1 - 4 into evidence. Petitioner submitted a response (P. Br.) and a two page synopsis of his brief and statement of issues on May 23, 2001, accompanied by one exhibit (P. Ex. 1). In the absence of objection by the I.G., I admit P. Ex. 1 into evidence. The I.G. submitted a reply brief (I.G. Reply Br.) on June 12, 2001.

II. Issues

The issues in this case, as framed in Judge Riotto's January 24, 2001 "Order and Schedule for Filing Briefs and Documentary Evidence" were: a) Whether Petitioner was convicted of a criminal offense under section 1128(a)(1) of the Act; and b) Whether the length of the exclusion imposed against Petitioner by the I.G. is unreasonable. These are the two issues that an administrative law judge is delegated to hear in any case involving a petitioner excluded under section 1128(a)(1) of the Act (as well as other subsections of section 1128). In her motion to dismiss, however, the I.G. raised a new and dispositive jurisdictional issue, which is whether the hearing request submitted by Petitioner was timely filed. Petitioner's response raised other issues, regarding whether or not Petitioner's hearing request was really a request for a hearing before an administrative law judge; whether the Act and regulations provide for an exclusion to end prior to the termination of a petitioner's period of exclusion; and, whether the I.G. validly exercised the I.G.'s discretion. See 42 C.F.R. � 1005.4.

III. Findings of Fact and Conclusions of Law

I make findings of fact and conclusions of law (Findings) to support my decision in this case. I set forth each of my Findings below, in italics, as a separately numbered heading. I discuss each Finding in detail.

1. Petitioner's hearing request was untimely filed.

The I.G. excluded Petitioner pursuant to section 1128(a)(1) of the Act. An individual who is excluded under section 1128(a)(1) of the Act has a right to reasonable notice, and an opportunity for an administrative hearing to challenge both the I.G.'s authority to impose the exclusion and the reasonableness of the length of the exclusion. Act, section 1128(f); see Act, section 205(b). However, the right to a hearing is conditioned on the individual making a timely request for a hearing after receiving notice of the I.G.'s exclusion determination. An excluded individual who fails to timely request a hearing loses the right to a hearing. The request for a hearing must be filed within 60 days after the I.G.'s exclusion notice is received by the excluded individual. 42 C.F.R. � 1005.2(c). The date of receipt of the notice letter will be presumed to be five days after the date of the notice letter unless there is a reasonable showing to the contrary. Id.

The I.G.'s notice of exclusion, which Petitioner does not dispute receiving, was sent to Petitioner on April 30, 1999. I.G. Ex. 1. Petitioner apparently sent a letter to the I.G. on June 1, 1999 (which is not in evidence in this proceeding) requesting clarification of the terms and effect of his exclusion. I.G. Reply Br. at 1. Petitioner does not assert that this letter constituted a hearing request. See Petitioner's December 5, 2000 hearing request; P. Br. Petitioner submitted his "application for termination of exclusion from participation," which has been docketed, processed and considered as a hearing request, on December 5, 2000, more than a year and a half after the date of the I.G.'s notice letter and far outside the period for him to timely file a hearing request.

2. I must dismiss Petitioner's case as it was untimely filed.

The regulations applicable to this case, at 42 C.F.R. � 1005.2(e)(1), require me to dismiss a hearing request where a petitioner's hearing request is not filed in a timely matter. As Petitioner's hearing request was filed out of time, I must dismiss the case.

IV. Petitioner's other arguments

In his response, Petitioner asserts that his December 5, 2001 submission was not intended to be a "hearing request," but instead was "the plea of a convicted felon, to the sovereign United States government to permit the Petitioner to begin to reconstruct his life by being permitted to, again, perform professional pharmacy services pursuant to the license so reissued by the State of Wisconsin, on the very recommendation of the parole probation officer of the Petitioner." P. synopsis of brief and statement of issues, at 2 - 3. Petitioner also argues that the Act and regulations, on their face, provide for termination of an exclusion prior to the expiration of the exclusion (Id. at 2) and that the I.G. did not validly exercise her discretion in denying Petitioner's petition for early termination (P. Ex. 1) because the I.G. did not evaluate the statutory and regulatory criteria applicable to this case.

I note that although Petitioner asserts that his December 5, 2000 submission was not a hearing request, Petitioner is nonetheless asking me to determine both that the Act provides for a procedure and methodology for an excluded individual to apply for termination of an exclusion prior to the expiration of the minimum mandatory period, and that the I.G. did not exercise her discretion with regard to the criteria on reinstatement, as is evidenced by the I.G.'s letter to Petitioner dated January 31, 2001 (P. Ex. 1). Even if Petitioner's submission of December 5, 2000 constituted a timely hearing request, however, I would not be able to consider these issues, as Petitioner has raised issues beyond the scope of my authority. Petitioner contends that section 1128(g) of the Act authorizes the I.G. to terminate his 10-year period of exclusion prior to its expiration. P. Br. at 2. However, the regulations governing this case provide that a petitioner is not eligible to apply for reinstatement until the expiration of that petitioner's exclusion. 42 C.F.R. � 1001.3002. I am bound by the regulations. Further, I do not have the authority to adjudicate the I.G.'s exercise of her discretion.

Moreover, I note that, in his response, Petitioner admits that his exclusion was " . . . proper under the circumstances and by Law duly authorized." P. Br. at 2. Petitioner does not dispute that he was convicted of Medicaid fraud or that two aggravating factors exist in his case. Although I have dismissed this case based on timeliness, were I to consider the issues I note that, given Petitioner's admissions and the evidence presented by the I.G. (I.G. Exs. 1 - 4), I would be likely to find Petitioner's conviction related to the delivery of an item or service under a State health care program (Medicaid) and, given the aggravating factors in the case, his exclusion to be within a reasonable range.

V. Conclusion

I conclude that Petitioner did not timely request a hearing and thus is not entitled to a hearing on any issue. The regulations provide that an administrative law judge will (emphasis added) dismiss a hearing request where the request is not made timely. 42 C.F.R. � 1005.2(e)(1). Accordingly, I dismiss Petitioner's request for a hearing.

JUDGE
...TO TOP

 

Marion T. Silva

Chief Administrative Law Judge

CASE | DECISION | JUDGE