SUBJECT:

John Maiorano, R. Ph.,

Petitioner,

The Inspector General

I. BACKGROUND

By letter dated March 29, 2002, the Inspector General (I.G.) notified Petitioner that he was being excluded from participation in the Medicare, Medicaid, and all federal health care programs for a period of 10 years. The I.G. informed Petitioner that he was being excluded due to his conviction, in the United States District Court for the District of New Jersey, of a criminal offense related to fraud, theft, embezzlement, breach of fiduciary responsibility, or other financial misconduct in connection with the delivery of a health care item or service or any act or omission in a health care program operated or financed, in whole or in part, by any federal, state, or local government agency. The I.G. advised Petitioner that the exclusion of individuals convicted of such offenses is mandated by section 1128(a)(3) of the Social Security Act (Act). The I.G. further advised Petitioner that his period of exclusion was longer than the five-year exclusion mandated by section 1128(c)(3)(B) of the Act because the I.G.'s records contained evidence that three aggravating circumstances existed in Petitioner's case (that the acts resulting in Petitioner's conviction took place over a period of more than one year; that Petitioner's sentence included incarceration; and that Petitioner was disqualified from participation in New Jersey's Medicaid program, and his license to practice pharmacy was revoked).

By letter dated July 14, 2003, Petitioner requested a hearing before an administrative law judge. Petitioner admitted that his hearing request was outside the 60-day period for requesting a hearing. Petitioner's counsel stated specifically in the July 14, 2003 hearing request that "[t]his matter was not brought to our attention until Mr. Maiorano faxed us a copy of the official notice of exclusion several weeks after the deadline." However, Petitioner requested that the administrative law judge hearing the case be "lenient with regards to the 60 day deadline and grant [Petitioner] a hearing to appeal the Department's decision." Petitioner noted that he had been pursuing a hearing on the I.G.'s proposed exclusion since June 27, 2001. Petitioner further argued that his exclusion is excessive given the circumstances surrounding his conviction.

By motion dated September 11, 2003, the I.G. requested that the case be dismissed as the hearing request was not timely filed.

During the prehearing conference I convened on September 15, 2003, the parties agreed to brief the I.G.'s motion to dismiss. I stated that at the close of the briefing I would either dismiss the case as untimely filed or schedule another conference to discuss the disposition of the case on the merits. Based on my review of the briefs and the applicable regulations, I am dismissing Petitioner's hearing request.

II. ISSUE

The only issue in this case is whether I must dismiss Petitioner's hearing request as untimely filed.

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)(3) of the Act. An individual who is excluded under this section 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). 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 regulations specify that I "will dismiss" a hearing request that is not timely filed. 42 C.F.R. § 1005.2(e)(1). This standard leaves me no discretion to waive a late filing or to grant an extension of time in which to file a request for hearing, even if a party could show that "good cause" exists to so extend. See Paul Michael Little, Jr., M.D., DAB CR1061 (2003).

Here, Petitioner submitted a hearing request over a year after receiving notice of his exclusion. Petitioner argues that he should be granted a hearing because he "continually requested a hearing regarding [his] exclusion from participation in all federal health care programs" (Petitioner's Brief (P. Br.) at 3) and he encloses with his brief correspondence to and from components of the Office of Inspector General prior to the date of the I.G.'s notice of exclusion which is at issue in this case (the March 29, 2002 notice letter). See the attachments to Petitioner's brief denoted as attachments A - K: A (June 27, 2000 letter from Petitioner's counsel); B (June 27, 2001 letter from Petitioner's counsel); C (December 7, 2001 letter from Petitioner's counsel); D (Petitioner's hearing request in this case dated July 14, 2003); E (May 19, 2000 letter from the I.G. to Petitioner's pharmacy); F (January 4, 2001 letter to Petitioner from the I.G.); G (January 4, 2001 letter to Petitioner from the I.G.); H (June 21, 2001 letter to Petitioner from the I.G.); I (June 21, 2001 letter to Petitioner from the I.G.); J (July 5, 2001 letter to Petitioner from the I.G.); and K (November 8, 2001 letter to Petitioner from the I.G.). Petitioner argues further that the I.G.'s notices to him were defective due to a "pattern of flawed correspondence" concerning his exclusion and Petitioner's attempts to request a hearing. P. Br. at 3 - 5.

My review of the correspondence Petitioner has submitted reveals that all the correspondence (absent the July 14, 2003 hearing request in this case submitted as attachment D) took place well before the notice letter sent to Petitioner on March 29, 2002. Although Petitioner might argue that the earlier correspondence he received from the I.G. was "flawed" (P. Br. at 3), the notice letter sent to Petitioner on March 29, 2002 set forth specific hearing rights and the directions for requesting a hearing. The notice letter clearly informed Petitioner that,

You may request a hearing before an administrative law judge in accordance with 42 CFR 1001.2007. Such a request must be made in writing within 60 days of your receiving the OIG's letter of exclusion and sent to Chief, Civil Remedies Division, Departmental Appeals Board . . . . Such a request must be accompanied by a copy of the OIG's letter, a statement as to the specific issues or findings with which you disagree, along with the basis for your contention that the specific issues and/or findings are incorrect.

Although the notice letter specifically and clearly set forth those things which Petitioner needed to do to timely request a hearing, Petitioner failed to do them. Any efforts Petitioner made to appeal before he received his final exclusion notice on March 29, 2002 do not diminish the length of time it took him to request a hearing after he received that final notice. Moreover, Petitioner has failed to explain why it took over one year to submit a hearing request when the notice of exclusion was brought to Petitioner's counsel's attention "several weeks after the deadline."

2. I must dismiss Petitioner's hearing request because it was untimely filed.

Petitioner does not deny that he received the March 29, 2002 notice letter timely. Petitioner's hearing request acknowledged that he did not send the March 29, 2002 notice letter to his attorneys until several weeks after the deadline for filing a hearing request. As I note above, the regulations applicable to this case, at 42 C.F.R. § 1005.2(e)(1), require me to dismiss a hearing request when it is not filed in a timely manner and do not give me any discretion to extend a filing date. Moreover, even if I had the authority to extend a filing date for good cause, Petitioner's inaction in timely forwarding his notice of exclusion to his attorneys does not constitute such good cause. Accordingly, as Petitioner's hearing request was filed out of time, I must dismiss this case.

Alfonso J. Montano

Administrative Law Judge