SUBJECT:

Dulal Bhattacharjee, M.D.,

Petitioner,

The Inspector General

DECISION

This matter is before me based on the Inspector General's (I.G.'s) determination to exclude Dulal Bhattacharjee, M.D., (Petitioner), from participation in Medicare, Medicaid, and all other federal Health care programs, for a period of five years pursuant to section 1128(a)(4) of the Social Security Act (the Act). 42 U.S.C. § 1320a-7(a)(4).

In a letter dated December 13, 2002, Petitioner requested a hearing to appeal the I.G.'s determination to exclude him. By motion dated May 13, 2003, the I.G. moved to have Petitioner's request for hearing dismissed as untimely filed. As I explain below, I find that Petitioner's request for hearing was not timely filed as required by 42 C.F.R. §§1001.2007(b) and 1005.2(c), and for that reason I grant the I.G.'s motion to dismiss.

I. PROCEDURAL BACKGROUND

Petitioner practiced medicine in the Commonwealth of Pennsylvania in the 1990s. In 2002 Petitioner was convicted in United States District Court for the Middle District of Pennsylvania on a felony charge of improperly prescribing controlled substances in violation of 21 U.S.C. § 841(a)(1).

As required by the terms of section 1128(a)(4) of the Act the I.G. began the process of excluding Petitioner from participation in Medicare, Medicaid, and all other federal health care programs. The Act establishes a minimum mandatory term of exclusion of not less than five years. Section 1128(c)(3)(B) of the Act; 42 U.S.C. § 1320a-7(c)(3)(B). The Act also permits the I.G. to enlarge the period of exclusion if certain aggravating factors are shown.

On May 30, 2002, the I.G. notified Petitioner of her intent to invoke the exclusion process, and solicited from him any information he might wish the I.G. to consider on the issue of the exclusion's term. Petitioner responded through counsel on June 26, 2002. On August 30, 2002, the I.G. notified Petitioner that he was to be excluded from Medicare, Medicaid, and all other federal health care programs for the minimum mandatory period of five years; no enlargement of the exclusion term beyond its mandatory minimum length was proposed or attempted.

Petitioner's request for hearing was filed pro se in a letter dated December 13, 2002. I convened a prehearing conference by telephone on April 21, 2003. During the telephone conference the timeliness of Petitioner's request for hearing was briefly discussed. The I.G. stated her intention to rely on the terms of 42 C.F.R. §§ 1002.2007(b), 1005.2(c), and 1005.2(3)(1) and seek the dismissal of the request for hearing as untimely. I established a briefing schedule by which the parties could submit their positions and exhibits.

Petitioner has proffered three unnumbered exhibits: the first is a "Notice of Automatic Suspension" dated May 23, 2002, and I have designated it Petitioner's Exhibit (P. Ex.) 1; the next is an Order in the Commonwealth Court of Pennsylvania, Cause No. 1306 C.D. 2002, dated September 25, 2002, which I have designated P. Ex. 2; the third is a letter captioned "RE: PMSLIC Policy PM5410166" dated July 3, 2002, which I have designated P. Ex. 3. No objections have been raised to these exhibits, and I therefore admit them to the record in this case. I have also designated approximately 57 pages of documents Petitioner attached to his request for hearing as P. Ex. 4, and have sua sponte admitted them to the record under that designation. The I.G. has proffered I.G. Exs. 1-5, and they are admitted in the absence of objection.

Because there are aspects of the briefing schedule that are of more than simply procedural interest, I shall discuss those aspects below; for the present, however, it is sufficient to note that the briefing and evidentiary record which remained open pursuant to my letters of July 18, 2003, and October 16, 2003, is now closed. The I.G.'s motion to dismiss stands submitted.

II. ISSUE

The legal issue before me is: whether Petitioner's request for hearing was filed in a timely manner, in compliance with the terms of 42 C.F.R. §§ 1001.2007(b) and 1005.2(c).

This issue is resolved against Petitioner: his request for hearing was filed untimely, five weeks past the deadline established by regulation. Petitioner's arguments that he did not receive the I.G.'s notice letter until an unspecified date in late November 2002 are unavailing here in the face of settled precedent establishing a strong presumption of its receipt in due course, and in the absence of any evidence to support a reasonable showing to the contrary. In the absence of such a showing, 42 C.F.R. § 1005.2(e)(1) requires that the request for hearing be dismissed.

III. CONTROLLING STATUTES AND REGULATIONS

Section 1128(a)(4) of the Social Security Act, 42 U.S.C. § 1320a-7(a)(4), requires the exclusion from participation in Medicare, Medicaid, and all other federal health care programs of any individual or entity convicted of a criminal offense consisting of a felony relating to the unlawful manufacture, distribution, prescription, or dispensing of a controlled substance. This mandatory exclusion must be imposed for a minimum of five years whenever one of the four classes of predicate convictions set out in section 1128(a) of the Act is established. Section 1128(c)(3)(B) of the Act, 42 U.S.C. § 1320a-7(c)(3)(B).The Office of Inspector General is charged with effecting exclusions based on sections 1128(a)(4) and 1128(c)(3)(B) of the Act. See 42 C.F.R. § 1001.101. If the I.G. determines that a conviction constitutes a proper predicate for the exclusion, she must send notice of her intent to exclude the affected individual or entity. The affected party is permitted to respond to this notice of intent with documentary evidence and written argument concerning whether the exclusion is warranted and any related issues. 42 C.F.R. § 1001.2001.

If the I.G. remains convinced that exclusion is warranted, she must send written notice of her final decision to exclude to the affected individual or entity, and must in that notice provide detailed information on a number of points, including the appeal rights of the excluded party. 42 C.F.R. § 1001.2002. See also Section 1128(c) of the Act, 42 U.S.C. § 1320a-7(c).

The individual or entity to be excluded may appeal the exclusion by filing a request for hearing before an administrative law judge (ALJ). 42 C.F.R. § 1001.2007. That regulation sets limits on the issues that may be considered on appeal and establishes requirements for the hearing request's content. It also establishes a discrete time limit for the filing of a request for hearing: 42 C.F.R. § 1001.2007(b) provides that:

The excluded individual or entity has 60 days from the receipt of notice of exclusion provided for in (section) 1001.2002 to file a request for such a hearing.

This filing time limit is reiterated in the regulations governing the conduct of an excluded party's appeal before the ALJ, which appear at 42 C.F.R. §§ 1005.1 through 1005.23. The 60-day deadline is found at 42 C.F.R. § 1005.2(c):

The request for hearing will be made in writing to the DAB; signed by the petitioner or respondent, or by his or her attorney; and sent by certified mail. The request must be filed within 60 days after the notice, provided in accordance with . . . (section) 1001.2002 . . . is received by the petitioner or respondent. For purposes of this section, the date of receipt of the notice letter will be presumed to be 5 days after the date of such notice unless there is a reasonable showing to the contrary.

Finally, 42 C.F.R. § 1005.2(e) directs that:

The ALJ will dismiss a hearing request where--

1. The petitioner's or the respondent's hearing request is not filed in a timely manner.

IV. FINDINGS OF FACT AND CONCLUSIONS OF LAW

I find and conclude that:

1. The I.G. mailed notice of the proposed exclusion of Petitioner from Medicare, Medicaid, and all other federal health care programs pursuant to section 1128(a)(4) of the Act to Petitioner's residential address on August 30, 2002. I.G. Ex 1.

2. Petitioner received the I.G.'s notice of his exclusion from Medicare, Medicaid, and all other federal health care programs pursuant to section 1128(a)(4) of the Act not later than September 4, 2002. I.G. Ex. 1; 42 C.F.R. § 1005.2(c).

3. Petitioner has failed to make a reasonable showing that he did not receive the I.G.'s notice on or before September 4, 2002. 42 C.F.R. § 1005.2(c).

4. Petitioner filed his request for hearing on December 13, 2002. Petitioner's Hearing Request at 1; I.G. Ex. 2.

5. Petitioner's request for hearing was not timely filed. 42 C.F.R. §§ 1001.2007(b) and 1005.2(c).

6. Petitioner's request for hearing must be dismissed. 42 C.F.R. § 1005.2(e)(1).

V. DISCUSSION

My ruling on the I.G.'s motion to dismiss relies on four principles that are well recognized in this forum. The first is the regulation-based and Departmental Appeals Board (Board)-endorsed principle creating a strong presumption in favor of the regular and timely delivery of exclusion notices sent pursuant to 42 C.F.R. § 1001.2002. The second is the precedent-established principle that "a reasonable showing to the contrary" of that presumption must be made through demonstration of facts calling the presumed delivery of the notice directly into question, and not by mere speculation or self-serving denials of receipt. The third principle, established by regulation and repeatedly acknowledged by decision, is that the ALJ is without jurisdiction to consider an untimely-filed hearing request, because the ALJ has not the authority to extend the filing deadline and cannot entertain a showing of good cause for late filing. The fourth principle is the distillation of the first three, and may be summarized thus: if it is to be timely, the filing of a hearing request pursuant to 42 C.F.R. § 1001.2007 must occur not more than 60 days after the date of the notice letter to which it responds, and the only relief available from that time limit demands a reasonable showing that the notice letter was not timely received.

I have been guided by a fifth principle in applying the four just mentioned. Petitioner appears here pro se. Board decisions have reminded ALJs that pro se petitioners are to be accorded some extra measure of consideration in developing a complete record, and I have endeavored to meet that obligation by directing the briefing toward the exploration of facts which Petitioner may have pleaded inartfully, but which could have had a material effect on this litigation.

The I.G. sent notice of Petitioner's exclusion to him in a letter dated August 30, 2002. I.G. Ex 1. The address to which the I.G.'s letter was sent is 2220 Brislin Road, Stroudsburg, Pennsylvania 18360, the same address employed by Petitioner in the instant litigation as his current mailing address, and the same address to which the I.G.'s preliminary exclusion correspondence was sent on May 30, 2002. I.G. Ex 3. The Brislin Road address is Petitioner's residential address. His former medical office received its business mail at Olympia 611 Plaza, RR 7, Post Office Box 589, Stroudsburg, Pennsylvania 18360. P. Exs. 1, 3.

There is no suggestion that either of the I.G.'s letters were returned as undelivered or undeliverable, and the fact that the Brislin Road address remains a valid one dispels any concern that it might be inaccurate or erroneous. The presumption established by 42 C.F.R. § 1005.2(c), by which Petitioner's receipt of the notice letter is presumed to have occurred not later than five days after its August 30, 2002 date, establishes September 4, 2002, as the latest date from which the 60-day filing period could be calculated. This presumption of receipt has been specifically endorsed by the Board in Sharon R. Anderson, D.P.M., DAB No. 1795 (2001).

Since there is no proof of a delivery date earlier than September 4, 2002, that date marks the commencing of the 60-day period. In the absence of some showing to rebut the regulatory presumption of receipt not later than September 4, 2002, the 60-day period for filing Petitioner's request for hearing expired on or about November 4, 2002.

The regulations and the unvarying decisions of this forum deny an ALJ the authority to extend the filing period once it has begun to run: 42 C.F.R. § 1005.2(e)(1) is a deliberate and unique provision, withholding from the ALJ any authority to consider any facts which might constitute good cause for late filing. Peter D. Farr, M.D., DAB CR909 (2002); Andrew J. Goodrow, DAB CR881 (2002); John F. Pitts, R.Ph., DAB CR820 (2001); Clifford M. Sonnie, M.D., DAB CR732 (2001). The result of this deliberate and unique withholding of authority is a rule of clarity and rigor: a tardy or dilatory petitioner can gain relief from the 60-day deadline only by negating the presumption of receipt through a "reasonable showing to the contrary." Expressed bluntly, the rule is this: the only relief available from the 60-day period is through a reasonable showing that the period never began to run because receipt of the notice letter did not occur as presumed. That is precisely what Petitioner pro se has attempted to show in this case.

There are instances where the "reasonable showing to the contrary" has been successfully undertaken. In Mira Tomasevic, M.D., DAB CR17 (1989), it amounted to a convincing factual demonstration that the petitioner had not, for a considerable period, resided at the address to which the notice letter was mailed; in Sean M. Maguire, M.D. DAB CR837 (2001), a similar factual showing that the notice letter's address was not the petitioner's mailing address at the relevant time was successful. The effect of a reasonable showing of defect in the address to which the I.G.'s notice letter was sent was underscored in Jerold Morgan, M.D., DAB CR768 (2001); although the result in that case did not depend on such a reasonable showing, the ALJ declared herself prepared to hold, consistent with Tomasevic, supra, and Maguire, supra, that the presumption of timely delivery had been rebutted by evidence that the notice letter was sent to an address no longer used by the petitioner.

Other cases offer guidance: without actually so deciding, and thus as obiter dicta, ALJs have suggested that facts proving that a third party actually interfered with or destroyed a notice letter could constitute a "reasonable showing," Julio M. Soto, M.D., DAB CR418 (1996), and that clinical proof of an incapacitating psychiatric illness might functionally negate the concept of "receipt" of the notice letter, Andrew J. Goodrow, supra. But just as instructive are the cases illustrating what does not constitute a "reasonable showing": mere assertions of non-receipt are not sufficient even if given under oath, Sunil R. Lahiri, M.D., DAB CR296 (1993), and neither are speculative assertions of irregularities or delays in the delivery of mail, George P. Rowell, M.D., DAB CR974 (2002); Peter D. Farr, M.D., supra.

The I.G. set out the relevant dates and regulatory provisions in a three-page motion to dismiss dated May 13, 2003. Although acting pro se, Petitioner squarely raised the possibility of a "reasonable showing" when he asserted in his Response dated June 26, 2003:

1. The Inspector General's letter of August 30^th, 2002 was received by me in late November because I was away due to the untimely tragic death of my immediate brother in Agartala, India. My office was closed for three months.

The I.G. quite correctly replied that "Petitioner does not present any documentary evidence of his trip out of the country or of his alleged three-month office closure." I.G. Reply at 2. And the I.G. was undoubtedly quite correct that, on the state of the evidence at that point, no "reasonable showing" had been made in support of Petitioner's claim. But the I.G.'s cursory three-page Reply failed to acknowledge the special circumstance in which Petitioner's pro se assertion arose and to appreciate the unmistakable obligation imposed by that circumstance on me.

The Board has expressed itself in pellucid language: ". . . pro se petitioners should be accorded some extra measure of consideration in developing a complete record." Louis Mathews, DAB No. 1574 (1996); see also Brij Mattel, M.D., DAB No. 1894 (2003); George Iturralde, M.D., DAB No. 1374 (1992); Timothy L. Stern, M.D., DAB No. 1314 (1992); and Edward J. Petrus, Jr., M.D., DAB No. 1264 (1991). Petitioner's assertion that he "was away" at a critical time could not have been a clearer signal that a showing like those in Tomasevic, supra, and Maguire, supra, was a material possibility. Guided by the Board's admonition in Mathews, supra, I wrote the parties on July 18, 2003, and pointed out that if Petitioner could establish his absence at the relevant times, his December 13, 2002 hearing request might in fact be timely. I called the parties' attention to some of the authorities cited above, and I made the situation as plain as my language could make it:

Petitioner appears here pro se, and for that reason it is important that I explain very briefly that the only question before me at this stage of the appeal is the timeliness of his hearing request. His Response alludes to facts that, if sufficiently demonstrated, might allow his appeal to withstand the I.G.'s Motion to Dismiss. Accordingly, I will permit Petitioner to supplement his Response within 30 days of the date of this letter with photocopies of any documents of his choosing, such as, but not limited to: (a) passport pages; (b) airline tickets; (c) travel agent's itineraries; hotel receipts or bills; (d) credit card receipts or bills; (e) affidavits from residential neighbors, or from security or law-enforcement personnel who may have watched over his residence, during any period of absence from August to November 2002; (f) postal records reflecting a temporary suspension of mail delivery to his residence; or (g) any other documents or records which would establish his absence during that period. If Petitioner chooses to supplement his Response, he must at the same time provide the I.G. with copies of all documents he submits.

Petitioner did supplement his Response in a filing dated August 11, 2002, and attached P. Exs. 1, 2, and 3. But neither the Exhibits nor the language of Petitioner's pleading support his argument in the slightest. First, the language of the pleading deserves examination:

1. My office was formally closed by the Commonwealth of Pennsylvania's Department of the State (copy attached). At the same time, my brother tragically died in India. Therefore, I could not have had access to the letters of the Inspector General.

This language does nothing to establish Petitioner's absence from his home during the time at issue. It does nothing toward asserting--and may in fact be understood to evade asserting--specific dates of his actual absence or non-access to regular mail at his residential address. It scrupulously avoids the mention of dates, routes, and means of travel, of family members, neighbors, or other persons who might corroborate Petitioner's travel or absence from his residence, or of any other evidence that might contribute to "a reasonable showing" that he was not at his residential mailing address during September and October 2002.

Next, the three exhibits submitted at the same time suffer similar insufficiencies. Petitioner's Exhibit 1 is dated May 23, 2002, and is addressed to Petitioner at his office, not his residence; it is Pennsylvania's "cease and desist" order suspending Petitioner's medical license. Petitioner's Exhibit 2 bears no address for Petitioner, and although dated September 25, 2002, it reflects no information as to Petitioner's whereabouts at the time of the order's entry. Petitioner's Exhibit 3, like Petitioner's Exhibit 1, is dated well before the critical time and is addressed to Petitioner's office. Nothing in these three exhibits helps explain how or why Petitioner should not be presumed to have received his mail at his residential address during September and October 2002.

Moreover, when Petitioner's Exhibits 1, 2, and 3 are examined in the context of Petitioner's Exhibit 4, their insufficiencies appear even more clearly. Petitioner's Exhibit 2 is identified by caption and cause number as part of the litigation over Petitioner's medical license set out in P. Ex. 4, at 4-16. Page 16 of the latter Exhibit shows that during the third and fourth weeks of September 2002--when dispositive activity was taking place in the case--Petitioner was represented in the license litigation by the same counsel to whom a copy of the I.G.'s August 30, 2002 notice letter was sent. P. Ex. 4, at 16; I.G. Ex. 1, at 1. It is telling that counsel had previously provided information on Petitioner's behalf, I. G. Exs. 4, 5, and could have been the source of helpful evidence concerning Petitioner's whereabouts during September 2002, but nothing from him appears in this record. Similarly, Petitioner's counsel in the federal criminal proceeding can be identified, P. Ex. 4, at 3, as adept at marshaling information from Petitioner's community. P. Exs. 4, at 1, 18-21, 27-31, 34-44, 48-56. Yet no evidence from that counsel, or from any of the community members, appears in support of Petitioner's claim of absence. The community described in P. Ex 4, at 17 is an obvious source of evidence concerning circumstances surrounding Petitioner's family emergency and his travel in response to it, yet nothing from it has been submitted.

In sum, having been provided with a detailed and concrete list of possible sources of evidence, and with additional time for their pursuit and development, Petitioner submitted nothing supportive of his claim. Although other obvious sources of evidence were known to Petitioner, he submitted nothing from them. It is difficult to imagine that Petitioner misunderstood the importance of the point, and I am thus left to believe that his failure to provide evidence in support of "a reasonable showing" is by no means attributable to his pro se status. He has been accorded the extra measure of consideration vouchsafed by Mathews, supra, but has failed to make a "reasonable showing to the contrary" of his presumed receipt of the I.G.'s notice letter not later than September 4, 2002.

Petitioner's request for hearing, filed as it was on December 13, 2002, was untimely. The terms of 42 C.F.R. § 1005.2(c) establish the presumptive date of Petitioner's receipt of the I.G.'s August 30, 2002 notice letter as not later than September 4, 2002. That presumption has not been rebutted by a reasonable showing to the contrary. The 60-day period for filing Petitioner's request for hearing established by 42 C.F.R. § 1001.2007(b) and 1005.2(c) therefore expired on or about November 4, 2002. Since I have no authority to extend the filing period, Petitioner's request for hearing must be dismissed pursuant to the authority of 42 C.F.R. § 1005.2(e)(1).

VI. CONCLUSION

For the reasons set forth above, I grant the Inspector General's motion to dismiss. The request for hearing filed by Petitioner on December 13, 2002 must be, and it is, DISMISSED.

Richard J. Smith

Administrative Law Judge