DECISION

I dismiss the hearing request filed by Petitioner, Frank William Meyer, D.D.S. Petitioner has no right to a hearing in this case because he filed his hearing request untimely.

I. Background

On November 30, 1999, the Inspector General (I.G.) notified Petitioner that he had been excluded from participating in Medicare and other federally funded health care programs for a period of ten years.

On January 24, 2003, Petitioner corresponded with the Departmental Appeals Board. In his letter Petitioner averred that the exclusion notice had been sent while he was in prison and he stated that it had not been forwarded to him until "much after the 60 day allocation to request a hearing." He inquired as to whether the Departmental Appeals Board would accept his request. The case was assigned to me for a decision.

On April 2, 2003, the I.G. moved to dismiss Petitioner's hearing request on the ground that it was untimely filed. I held a pre-hearing conference by telephone. I advised the parties that I would consider the motion to dismiss before I addressed the merits of the case. I advised them additionally that I would not address the merits if I granted the I.G.'s motion to dismiss. On April 25, 2003, Petitioner replied to the motion to dismiss.

II. Issue, findings of fact and conclusions of law

The issues in this case are whether:

B. 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 Finding below as a separate heading. I discuss each Finding in detail.

The I.G. mailed her notice to Petitioner on November 30, 1999. Petitioner's hearing request was due on February 4, 2000 absent a reasonable showing by him that he did not receive the I.G.'s notice within five days of the date of its mailing. Petitioner did not file a document requesting a hearing until January 24, 2003. On its face his request was untimely.

Petitioner asserts that he did not receive the I.G.'s notice within five days of its mailing. He explains that, while he was incarcerated, his mail was forwarded to his son in Columbia, Missouri. According to Petitioner:

This statement is an admission by Petitioner that he received the I.G.'s notice no later than late May 2000. Petitioner would have had until late July 2000 to file a timely hearing request based on this admission. Petitioner did not file anything with the Departmental Appeals Board until January 24, 2003. Petitioner's hearing request was, therefore, untimely filed.

But, I would dismiss the request in this case even if I were to conclude that I had the discretion to give Petitioner a hearing despite his untimely filing. I note that 42 C.F.R. § 1005.2(e) is worded differently from regulations which govern hearings in cases involving the Centers for Medicare & Medicaid Services (CMS) at 42 C.F.R. Part 498. The latter regulations explicitly give an administrative law judge discretion to allow a party a hearing where the request has not been filed timely but where the party who requests the hearing establishes good cause for not having filed his or her request timely. See 42 C.F.R. § 498.40(c).

However, Petitioner has not demonstrated good cause for filing his hearing request untimely in this case. In fact, Petitioner has given no explanation which justifies his filing his request untimely in this case. Thus, there would be no basis for me to waive the 60-day filing requirement in this case even if one were to assume that I had discretion to do so based on a showing of good cause by Petitioner.