SUBJECT:

Paul Michael Little, Jr., M.D.,

Petitioner,

The Inspector General

DECISION

Petitioner failed to timely file his request for a hearing. Accordingly, the request for hearing is dismissed pursuant to 42 C.F.R. § 1005.2(e)(1).

I. Procedural History

The Inspector General (I.G.) sent Petitioner, Paul Michael Little, Jr., M.D. (Dr. Little), a letter dated September 30, 2002 notifying him of his exclusion from Medicare, Medicaid, and all federal health care programs. A copy of the letter (hereinafter I.G.'s notice letter) is in the record at attachment A of Petitioner's request for a hearing. As explained in the I.G.'s notice letter, Dr. Little was excluded, pursuant to section 1128(a)(4) of the Social Security Act, for being convicted of a criminal offense. Dr. Little filed a request for a hearing on December 18, 2002. I convened a teleconference with counsel for the Parties on March 3, 2003, at which I ascertained that Dr. Little wished to respond to the I.G.'s forthcoming motion to dismiss Dr. Little's hearing request. I received the I.G.'s motion to dismiss Dr. Little's hearing request on March 4, 2003. I received Dr. Little's response to the I.G.'s motion to dismiss on May 16, 2003. The I.G. did not seek leave to reply, so I deem the record closed as of May 27, 2003.

II. Issue

Whether Dr. Little's request for hearing should be dismissed because it was not timely filed.

III. Findings of Fact and Conclusions of Law

A. Findings of Fact

1. The I.G. advised Dr. Little by letter dated September 30, 2002, that he was being excluded from participation in Medicare, Medicaid and all other federal health care programs for a period of five years. I.G.'s notice letter.

2. Enclosed with the I.G.'s notice letter was an information sheet, which informed Dr. Little that he could "request a hearing before an administrative law judge . . . in writing within 60 days of (his receipt of) the OIG's letter of exclusion . . . ." I.G.'s notice letter.

3. Dr. Little received the I.G.'s notice letter, within five days of the date of the letter: October 5, 2002. I.G.'s notice letter; 42 C.F.R. § 1005.2(c).

4. Dr. Little requested a hearing by letter dated December 18, 2002. Petitioner's hearing request.

B. Conclusions of Law

1. Dr. Little's request for hearing was not timely filed.

2. Dismissal of Dr. Little's request for hearing is required pursuant to 42 C.F.R. § 1005.2(e)(1).

IV. Discussion

Dr. Little admits that his request for a hearing was untimely filed. Petitioner's response at 5. Nonetheless, he urges me to consider that default judgment is disfavored in the law, and to consider that dismissing his case without hearing him on the merits is unfair. In support, Dr. Little cites several cases from federal courts for the proposition that a judge should weigh facts concerning why a party filed a pleading untimely against how leniency will prejudice the opposing party; and for the proposition that a judge should consider whether dismissal of a case is fair. Id. at 5-10.

The beneficence of the principles Dr. Little puts forward notwithstanding, his arguments are unavailing in this forum. The stringency of the applicable regulation is inescapable: untimely hearing requests must be dismissed. The regulations are unambiguous that a party must request a hearing in writing within 60 days after the notice of exclusion is received by that party. And the regulations specify that I "will dismiss" a hearing request where a petitioner's hearing request is not timely filed. 42 C.F.R. § 1005.2(e)(1). I understand will dismiss to be inflexible - it affords me no discretion to waive a late filing or to grant an extension of time in which to file a request for hearing. The date of receipt of the I.G.'s notice is presumed to be five days after the date of the notice, unless there is a reasonable showing to the contrary. 42 C.F.R. § 1005.2(c). In this case, the I.G.'s notice letter was dated September 30, 2002. That letter enclosed information advising Dr. Little of his right to file a request for hearing and of the regulatory requirements for filing the request.

In light of the undisputed facts of this case, I have no choice but to dismiss Dr. Little's hearing request for being filed untimely. Dr. Little did not file his request until 73 days after the date he received the I.G.'s notice letter. Dr. Little acknowledges this fact and seeks leniency based on equitable principles; however, I have neither the authority to consider whether Dr. Little's predicament is fair, nor the discretion to depart from the absolute terms of 42 C.F.R. § 1005.2(e)(1).

V. Conclusion

Dr. Little failed to timely file his request for a hearing. Accordingly, his request for hearing is dismissed pursuant to 42 C.F.R. § 1005.2(e)(1).

Carolyn Cozad Hughes

Administrative Law Judge