CASE | DECISION | JUDGE | FOOTNOTES

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


SUBJECT:

Beverly Jean Taylor, C. N. A.,

Petitioner,

DATE: December 01, 2003
                                          
             - v -

 

The Inspector General

 

Docket No.C-03-427
Decision No. CR1115
DECISION
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DECISION

I decide that Petitioner, Beverly Jean Taylor, C.N.A., did not file a timely request for hearing pursuant to 42 C.F.R. § 1005.2(c). Consequently, Petitioner has no right to a hearing, and Petitioner's hearing request is dismissed.

I. Background

This case is before me pursuant to a request for hearing filed by Petitioner dated May 5, 2003.

By letter dated December 31, 2002 (notice of exclusion), the Inspector General (I.G.) notified Petitioner that she was being excluded from participation in the Medicare, Medicaid, and all federal health care programs, as defined in section 1128B(f) of the Social Security Act (Act), for five years. The I.G. informed Petitioner that she was being excluded pursuant to section 1128(a)(2) of the Act, due to her conviction in the State of Minnesota, of a criminal offense relating to patient abuse in connection with the delivery of a health care item or service.

At a telephone conference held on July 28, 2003, I set a schedule for the parties to file briefs supported by documentary evidence as there were no issues requiring an in-person hearing. The I.G. submitted a memorandum of law (I.G. Br.) accompanied by seven proposed exhibits (Exs.), filed on August 27, 2003. These were identified as I.G. Exs. 1 - 7, and admitted into the record without objection. Petitioner submitted a brief (P. Br.) in support of her contentions, filed on September 29, 2003, and offered four exhibits, identified as Petitioner's (P.) Exs. 1 - 4, which were admitted into the record without objection. I have entered into the record as Administrative Law Judge (ALJ) Ex.1, Petitioner's request for hearing with its attached notice of exclusion. Similar documents were submitted by the I.G. as I.G. Exs. 1 and 3, but I have also entered into the record a set of the documents exactly as they were filed by Petitioner. The I.G. filed a reply brief on October 30, 2003, to which Petitioner did not respond.

The I.G. seeks dismissal of Petitioner's request for hearing due to untimely filing. In the alternative, the I.G. requests summary judgment on the merits.

After consideration of the written arguments and documentary evidence submitted by the parties, I grant the I.G.'s motion to dismiss. In doing so, I find that the hearing request was untimely filed. Therefore, it is not necessary to address the issues relative to the merits of the case.

II. Applicable Law and Regulations

Section 1128(a)(2) of the Act authorizes the Secretary of Health and Human Services (Secretary) to exclude from participation in Medicare, Medicaid, and all federal health care programs (as defined in section 1128B(f) of the Act) any individual convicted under federal or state law, of a criminal offense relating to neglect or abuse of patients in connection with the delivery of a health care item or service.

Any exclusion under section 1128(a)(2) of the Act must be for a minimum period of five years. Act, § 1128(c)(3)(B); 42 C.F.R. § 1001.102(a).

Pursuant to 42 C.F.R. § 1001.2007, a person excluded under section 1128(a)(2) of the Act may file a request for hearing before an ALJ.

An ALJ may dismiss a request for hearing that is not filed within 60 days of receipt of the notice of exclusion. 42 C.F.R. § 1005.2(c) and (e)(1).

III. Discussion

In cases involving the Office of the Inspector General (OIG), a party is entitled to a hearing only if that party files its request for hearing within 60 days after receipt of the notice of exclusion. The date of receipt of the notice will be presumed to be five days after the date of such notice, unless there is a reasonable showing to the contrary. 42 C.F.R. § 1005.2(c).

A. Petitioner did not file a timely request for hearing.

The OIG sent Petitioner the notice of exclusion on December 31, 2002. I.G. Ex. 1. The regulatory presumption is that Petitioner received the notice not later than January 6, 2003. See 42 C.F.R. §§ 1005.2(c)and 1005.12. In her written declaration, Ms. Katherine B. Petrowski (1) states that upon review of the case file in the matter here under consideration, she determined that the notice of exclusion addressed to Beverly Jean Taylor, C.N.A., 913 DeSoto Street, St. Paul, MN 55101, (2) dated December 31, 2002 (I.G. Ex. 1), was not returned to her office. She thus presumed the notice of exclusion to have been received by the intended recipient within five days. According to Ms. Petrowski, the date on the notice of exclusion reflects the date that it is placed in the mail. If a notice of exclusion is not returned to the office, it is the policy and practice of the exclusion office to presume that the notice of exclusion was delivered within five days as provided by the regulation. I.G. Ex. 5.

Petitioner does not dispute that the notice of exclusion was sent as stated by the I.G., in the ordinary course of business to the correct address. P. Br. at 6. Furthermore, Petitioner asserts that she filed a request for hearing on May 5, 2003. P. Br. at 5. That is, four months subsequent to the date it is presumed that she received the notice of exclusion. Consequently, I find that Petitioner did not file a timely request for hearing.

B. Petitioner has failed to make a reasonable showing to rebut the presumption that she received the letter of exclusion within five days of its mailing.

Section 1005.2(c) of 42 C.F.R. provides that the date of receipt of the notice of exclusion will be presumed to be five days after the date of such notice unless there is a reasonable showing to the contrary. Thus, the presumption is rebuttable. Petitioner argues that although the I.G. has evidence that the notice of exclusion was sent in the ordinary course of business to the correct address, the I.G. has advanced no evidence that the notice of exclusion was in fact received. Petitioner, therefore, reasons that the presumption has been rebutted and the request for hearing cannot be dismissed as being untimely. P. Br. at 6.

Petitioner also contends that the timeliness issue cannot be appropriately resolved by competing affidavits, and that a hearing is necessary to assess Petitioner's demeanor and candor. In addressing Petitioner's second point of contention first, I must note that a hearing is not required to weigh Petitioner's credibility. The nature of the evidence that Petitioner would present at an in-person hearing would not differ from that which she advances in her written declaration. P. Ex. 1. The issue is not whether Petitioner would make a credible, in-person witness, but whether she has come forward with the type of evidence that suffices to make a reasonable showing to rebut the presumption that she received the notice of exclusion within five days after it was placed in the mail. I conclude that I can resolve the issue of "reasonable showing" based on the documentary evidence, written declarations, arguments of the parties, and the applicable law and regulations.

Petitioner argues that the I.G. has no evidence to refute Petitioner's assertion that she did not receive the notice of exclusion, and that evidence of mailing does not establish evidence of receipt. She believes that her mere statement that she did not receive the notice suffices to overcome the regulatory presumption. Petitioner's assumption is incorrect, inasmuch as the I.G. does not have the burden of showing that Petitioner in fact received the letter. To the contrary, it is for Petitioner to make a reasonable showing that she did not receive the notice of exclusion dated December 31, 2002. The regulation is clear in establishing that the date of receipt of the notice of exclusion will be presumed to be five days after the date of such notice, unless there is a reasonable showing to the contrary. The presumption favors the sender. The burden of coming forward with a reasonable showing to rebut that presumption rests with the intended recipient. Robert Cole, DAB CR917, at 4 (2002).

Petitioner repeatedly denies receiving the notice of exclusion prior to May 5, 2003. P. Br. at 2, 3, 5, 6; P. Ex. 1, ¶ 7, at 2. (Petitioner's written declaration offered under penalty of perjury). In support of her denial, Petitioner asserts in her written declaration:

I have been living at 913 Desoto in St. Paul, Minnesota for about 11 years. My mailbox is not attached to the house, but it is on the fence at the edge of the property near the sidewalk. There have been other occasions when I have not received my mail. Because of my work schedule in January 2003, my kids usually picked up the mail out of the box before I did. Also, in January 2003, I had a man living with me, who sometimes picked up the mail before I got it.

P. Ex. 1, ¶ 6, at 2. These self-serving assertions lack probative value to overcome the presumption set forth in the regulation. Ronald J. Crisp, M.D., DAB CR724, at 5-6 (2000).

I also note Petitioner's assertion that on May 5, 2003, she placed a call to Washington, D.C., to report that she had never received the notice of exclusion; during the call she requested a duplicate be sent to her. P. Ex 1, ¶ 5, at 2. Petitioner further asserts that she received the requested duplicate after her May 5, 2003 call to Washington, D.C. P. Ex. 1, ¶ 7, at 2 (emphasis added). The record also reflects that on the same day that she claims to have placed her call to Washington, D.C. (May 5, 2003), Petitioner sent her request for hearing accompanied by the notice of exclusion dated December 31, 2002, which she allegedly had not yet received. See ALJ Ex. 1, at 3. The request for hearing and attached notice of exclusion were received in the Civil Remedies Division on May 9, 2003. The only inference that I can draw is that on May 5, 2003, Petitioner attached to her request for hearing, a copy of the original notice of exclusion sent to her on December 31, 2002; the same notice of exclusion which, as of that date (May 5, 2003), she claims to have not yet received.

IV. Conclusion

I conclude that Petitioner did not timely file a request for hearing, and, therefore, is not entitled to a hearing. The regulations provide that an ALJ will dismiss a request for hearing where the request is not filed timely. 42 C.F.R. § 1005.2(e)(1). Consequently, I dismiss Petitioner's request for hearing.

JUDGE
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José A. Anglada

Administrative Law Judge

FOOTNOTES
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1. Director, Exclusions Staff, Office of Investigations (OI), Office of the Inspector General (OIG), United States Department of Health and Human Services (HHS).

2. Petitioner concedes that the letter was sent to the correct address. P. Br. at 6.

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