Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD
Civil Remedies Division
In the Case of:
John T. Clardy, M.D.,
Petitioner,
- v. -
The Inspector General.
DATE: May 20, 1992
Docket No. C-92-023
DECISION
By letter dated February 26, 1991, the Inspector General
(I.G.) notified Petitioner that he was being excluded
from participation in the Medicare and State health care
programs for two years, pursuant to section 1156 of the
Social Security Act (Act), 42 U.S.C. 1320c-5. The I.G.
advised Petitioner that the exclusion was based upon the
recommendation of the Medical Society of Virginia Review
Organization, the designated peer review organization for
the State of Virginia (PRO).
The I.G. determined that Petitioner grossly and
flagrantly violated the obligations imposed upon him
under section 1156(a) of the Act, by providing care which
failed to meet professionally recognized standards of
health care, and by not providing care economically and
only when and to the extent medically necessary. The
I.G. also determined that Petitioner demonstrated a lack
of ability to substantially comply with the obligations
imposed upon him by section 1156(a) of the Act.
Petitioner sought administrative review of his exclusion,
and the case was assigned to me for a hearing and
decision.
Based on the evidence of record, the parties' arguments,
and the applicable law and regulations, I am dismissing
Petitioner's request for a hearing because it was not
timely filed and Petitioner has not shown "good cause"
for his failure to file a timely hearing request.
PROCEDURAL BACKGROUND
On February 26, 1991, the I.G. issued a notice
determination (Notice), informing Petitioner that he
was being excluded from participation in Medicare and
State health care programs for a period of two years.
The Notice advised Petitioner that, if he desired a
hearing before an Administrative Law Judge (ALJ), he must
file a written hearing request within 60 days from
receipt of the Notice. By letter dated October 30, 1991,
Petitioner requested a hearing to contest the I.G.'s
determination.
I scheduled a prehearing conference to take place in this
case on January 6, 1992, and, prior to that conference,
the I.G. submitted a motion to dismiss this case. The
I.G. alleged that Petitioner's request for a hearing in
this case was untimely and that Petitioner has not shown
"good cause" for extending the time for filing a hearing
request. The I.G. also submitted five exhibits in
support of his motion to dismiss.
During the January 6, 1992 prehearing conference, I
established a briefing schedule, providing Petitioner an
opportunity to respond to the I.G.'s motion to dismiss
and providing the I.G. an opportunity to reply to
Petitioner. During that conference, Petitioner
stipulated to the authenticity of the five exhibits
submitted by the I.G. in support of his motion to
dismiss. 1/
On January 29, 1992, the Secretary of the Department of
Health and Human Services (the Secretary) promulgated
new regulations containing procedural and substantive
provisions affecting exclusion cases. By letter dated
February 18, 1992, I instructed both parties to address
the issue of what, if any, effect these regulations have
on the outcome of the I.G.'s motion to dismiss.
ISSUES
The issues in this case are:
1. Whether the new regulations promulgated on
January 29, 1992 govern the disposition of this
case.
2. Whether Petitioner's hearing request was timely
filed.
3. If Petitioner's request was not timely and if
the regulations adopted prior to January 29, 1992
apply to this case, whether Petitioner has shown
"good cause" for allowing his hearing request to be
received out of time.
FINDINGS OF FACT AND CONCLUSIONS OF LAW 2/
1. In a letter dated February 26, 1991, the I.G.
notified Petitioner that he was being excluded from
participation in the Medicare and State health care
programs and that, if Petitioner wanted a hearing
regarding his exclusion, he must file a request within 60
days of the receipt of the I.G.'s notice. I.G. Ex. 1.
2. Petitioner entered into a settlement agreement with
the I.G. on March 12, 1991. I.G. Ex. 2.
3. Petitioner acknowledged receipt of the February 26,
1991 exclusion determination in the March 12, 1991
settlement agreement, and he expressly stated that he
understood his right to appeal that determination. I.G.
Ex. 2.
4. According to the terms of the settlement agreement,
Petitioner agreed not to seek an appeal of his exclusion
and he agreed to post a notice in his office stating that
he does not participate in the Medicare and State health
care programs. In return, the I.G. agreed not to publish
notice of Petitioner's exclusion in the newspaper,
pursuant to 42 C.F.R. 1004.100(d). The I.G. also
agreed that the notice posted in Petitioner's office
would not explicitly state that Petitioner was excluded.
I.G. Ex. 2.
5. The March 12, 1991 settlement agreement was signed by
Petitioner's attorney. I.G. Ex. 2.
6. On the second page of the March 12, 1991 settlement
agreement, was a signed statement by Petitioner, in which
he stated that he had reviewed the contents of the
settlement agreement and that he concurred with it. I.G.
Ex. 2.
7. By letter dated October 30, 1991, Petitioner alleged
that he did not enter into the March 12, 1991 agreement
freely and requested a hearing before an ALJ. I.G. Ex.
3.
8. The regulations concerning time limitations for
filing appeals of exclusions determinations, to be
codified at 42 C.F.R. 1005.2(c), promulgated at 57 Fed.
Reg. 3298, 3350 on January 29, 1992, were not intended to
apply retroactively to appeals of I.G. exclusion
determinations that were pending before ALJs at the time
the regulations were promulgated.
9. The relevant federal regulations at 42 C.F.R.
498.40(a)(2) provide that an affected party or his legal
representative must file a request for a hearing in
writing within 60 days from receipt of the exclusion
Notice. However, 42 C.F.R. 498.40(c)(2) provides
that for "good cause shown" the ALJ to whom the case
is assigned may extend the time for filing the hearing
request.
10. More than 60 days elapsed from the time Petitioner
received the exclusion Notice until the time he filed a
request for a hearing before an ALJ. FFCL 3, 7.
11. Petitioner's request for a hearing before an ALJ was
not filed timely. FFCL 10.
12. Petitioner admitted that his request for a hearing
was not filed timely. I.G. Ex. 3.
13. According to the applicable regulations, "good
cause" occurs where unusual or unavoidable factors beyond
a party's control prevent him from filing in a timely
fashion. See 20 C.F.R. 404.911.
14. Petitioner began being treated for depression and
anxiety on May 10, 1991. I.G. Ex. 4.
15. Petitioner's assertion that he was suffering from
depression and anxiety for which he received treatment
beginning on May 10, 1991, taken as true, is not "good
cause" for untimely filing.
16. Even if the I.G. violated requirements for notice by
entering into the March 12, 1991 settlement agreement,
this would not constitute "good cause" for untimely
filing.
17. Petitioner has not shown "good cause" for submitting
a late request for a hearing before an ALJ. FFCL 14-17.
18. Petitioner is not entitled to a hearing before an
ALJ because he failed to file a timely request; and he
has failed to demonstrate "good cause" for filing a late
request. FFCL 11-12.
DISCUSSION
I. The New Regulations Promulgated on January 29, 1992
Do Not Govern The Disposition Of This Case.
This case involves a request for a hearing before an ALJ
to contest an exclusion imposed on Petitioner pursuant
to section 1156 of the Act. Implementing regulations
adopted by the Secretary prior to January 29, 1992
provide, at 42 C.F.R. 498.40(a)(2), that, in order to
be entitled to a hearing, a party requesting a hearing
must file the request within 60 days from receipt of the
exclusion Notice. However, 42 C.F.R. 498.40(c)(2)
provides that for "good cause shown" the ALJ to whom the
case is assigned may extend the time for filing the
hearing request.
New implementing regulations, published by the Secretary
on January 29, 1992, also provide that in order to be
entitled to a hearing, a party requesting a hearing must
file the request within 60 days after the exclusion
Notice is received by the affected party. However,
absent from the new regulations is any provision allowing
the ALJ to extend the time for filing the hearing request
for "good cause shown" or for any other reason. 42
C.F.R. 1005.2(c), 57 Fed. Reg. 3298, 3350 (January 29,
1992). According to the I.G., since the new regulations
do not expressly provide for an extension of the 60 day
appeal period based on "good cause," the ALJ lacks the
authority to consider a hearing request not filed within
the 60 day time limitation. Thus, the first question to
be decided in this case is whether 42 C.F.R. 1005.2(c),
if given the effect urged by the I.G., applies to this
case.
The I.G. argues that the Secretary intended the new
regulations to apply to cases which were pending at the
date of the regulations' publication. According to the
I.G., application of 42 C.F.R. 1005.2(c) to this case
is a lawful prospective application intended by the
Secretary because it would not cause Petitioner to lose
any existing substantive rights and it would not result
in "manifest injustice". I.G. R. Br. 3-7.
In opposition, Petitioner contends that the new
regulations should be applied prospectively absent
express legislative intent that they be applied
retroactively. Petitioner also argues that, even if
the new regulations' procedural aspects are to be
applied retroactively, they cannot be applied to deny
a preexisting right or privilege. P. Br. 1-2.
It has been held generally that administrative rules
should not be applied retroactively unless their language
specifically requires that application. Bowen v.
Georgetown University Hospital et al., 488 U.S. 204
(1988). It is also a generally accepted principle of law
that where retroactive application of a law would impose
greater liabilities and affect substantive rights, then
the law should be prospective only. United States v.
Murphy, 937 F. 2d 1032 (6th Cir. 1991). Absent a
specific instruction in the Act or regulations directing
that they apply to pending cases, I must conclude that
the Secretary did not intend that the regulations be
applied retroactively in a manner that would strip
parties of previously vested rights or privileges.
The I.G. argues that Part 1005 of the new regulations
provides for procedural mechanisms for an affected party
to appeal a determination made by the I.G. According to
the I.G., Petitioner has not lost any "substantive" right
under the new regulations because 42 C.F.R. 1005.2(c)
"provides merely for a change in procedure in filing a
hearing request". I.G. R. Br. 4.
I recognize that the regulations at issue address the
mechanics of properly filing a hearing request. While
these regulations operate to govern a procedural aspect
of the hearing process, it should not be forgotten that
their application to a case is also determinative of the
threshold question of whether a party will be granted the
opportunity for a hearing at all. Thus, while these
regulations have a procedural component, they must also
be characterized as "substantive" regulations insofar as
they govern whether a party will be granted a hearing in
a case.
Under both the previous and the new regulatory schemes,
an excluded person or entity has a right to a hearing if
a request is timely filed. Under both regulatory
schemes, an excluded person or entity who has failed to
file a hearing request in the 60 day time limit is no
longer entitled to a hearing. The only difference in the
two regulatory schemes is that the new regulations no
longer expressly authorize an ALJ to exercise his
discretion to consider late hearing requests. Therefore,
the new regulations do not take away any existing right
to a hearing because an excluded person or entity does
not have a right to a hearing after the expiration of the
60 day time limit under either regulatory scheme.
While the new regulations as interpreted by the I.G. do
not deprive an excluded person or entity of an existing
right to a hearing, they do operate to deprive him of
the possibility of a hearing. Under the previous
regulations, an excluded person or entity who had lost
his right to a hearing because he failed to file a
hearing request within the requisite 60 day time period
nevertheless still would have the opportunity for a
hearing if the ALJ found "good cause" for his failure
to file a timely hearing request. Under the new
regulations, there is no such provision for the ALJ to
provide a hearing after the requisite 60 day time period
expires. An excluded person or entity who files a late
hearing request is substantially disadvantaged by the new
regulations because there is no provision for allowing
him a hearing even if he can show extenuating
circumstances for his failure to file a timely hearing
request. Thus, 42 C.F.R. 1005.2(c), if given the
effect urged by the I.G., would dramatically and
profoundly alter the opportunity for a full hearing on
the I.G.'s exclusion determination. This regulation, as
interpreted by the I.G., imposes a substantial
"liability" within the meaning of United States v.
Murphy. 3/
Application of 42 C.F.R. 1005.2(c) in this case to
deprive Petitioner of a previously existing provision
providing him the opportunity to have a late hearing
request considered would contravene the standards set
forth in Bowen v. Georgetown University Hospital and
United States v. Murphy. There is nothing in the Act or
the regulations which can be interpreted as a directive
to apply them in a way which would produce such a result.
Such an application would create manifest injustice and
would be an unlawful retroactive application of the new
regulations. Charles J. Barranco, M.D., DAB CR187
(1992). 4/ Accordingly, I conclude that 42 C.F.R.
1005.2(c), as interpreted by the I.G., does not apply
to this case.
II. Petitioner's Request For A Hearing Was Untimely
Filed.
Having concluded that the prior regulations govern this
case, I must now apply these regulations to the facts of
this case. As I stated above, the applicable regulations
require that a party requesting a hearing must file the
request within 60 days from receipt of the exclusion
Notice. 42 C.F.R. 498.40(a)(2).
The undisputed facts are that on February 26, 1991, the
I.G. issued a Notice advising Petitioner that he was
being excluded from participation in the Medicare and
State health care programs for two years. I.G. Ex. 1.
The undisputed facts also establish that, in a letter to
the Office of the I.G. dated March 12, 1991, Petitioner
acknowledged receipt of the I.G.'s February 26, 1991
Notice. I.G. Ex. 2. While the exact date Petitioner
received the Notice has not been established, it is
reasonable to infer that Petitioner had received the
Notice by March 12, 1991.
Petitioner did not file a hearing request until October
30, 1991, more than 60 days after he received the Notice
of exclusion. In that letter, Petitioner admits that his
hearing request was untimely, and he offers an
explanation for why his request was not filed within the
requisite 60 day period. I.G. Ex. 3. The undisputed
material facts therefore establish that Petitioner did
not timely file his hearing request.
III. Petitioner Has Not Shown "Good Cause" For The
Untimely Filing Of His Hearing Request.
Since Petitioner did not file his hearing request within
the 60 day limitations period required by regulation, he
is not entitled to a hearing before an ALJ. However, the
applicable regulations establish circumstances where a
petitioner may be granted a hearing, even though there is
no right to one. The regulations provide that for "good
cause shown" the ALJ to whom the case is assigned may
extend the time for filing the hearing request.
42 C.F.R. 498.40(c)(2).
While Petitioner has not disputed that his request for
a hearing was untimely filed, he contends that he had
"good cause" for doing so. The question before me is
whether "good cause" exists in this case to justify a
discretionary grant of a hearing before an ALJ.
The undisputed facts establish that the I.G. fully
advised Petitioner of his appeal rights in his February
26, 1991 Notice letter. The Notice letter specifically
stated that, to be effective, a hearing request must be
made within 60 days of receipt of the exclusion Notice.
I.G. Ex. 1. Petitioner reacted to this Notice by
retaining the services of an attorney, Louis W. Kershner,
to represent him. After discussions between Petitioner's
attorney and Mr. Ronald Ritchie, a program analyst with
the Office of the I.G., Petitioner entered into a
settlement agreement with the I.G. on March 12, 1991.
I.G. Ex. 2.
The March 12, 1991 settlement agreement expressly stated
that Petitioner understood his right to appeal the I.G.'s
exclusion determination. The settlement agreement also
indicated that Petitioner agreed not to seek an appeal of
his exclusion and that he would post a notice in his
office stating that he does not participate in the
Medicare and State health care programs. According to
the terms of the settlement agreement, the notice posted
in Petitioner's office would not state that he was
excluded from participation. In return, the I.G. agreed
not to publish notice of Petitioner's exclusion in the
newspaper pursuant to 42 C.F.R. 1004.100(d). I.G. Ex.
2.
The March 12, 1991 settlement agreement was signed by
Petitioner's attorney. Petitioner also attached a signed
statement in which he represented that he had reviewed
the contents of the settlement agreement and that he
concurred with it. I.G. Ex. 2.
Accordingly, Petitioner did not file a request for a
hearing during the 60 day period following receipt of
the exclusion Notice. Instead, he filed his request on
October 30, 1991, approximately six months after the
expiration of the 60 day limitations period. Petitioner's
October 30, 1991 letter enclosed a letter dated October
16, 1991, from Rochelle P. Jackson, M.D. (This document
was also submitted as I.G. Ex. 4.)
Dr. Jackson indicated that she began to provide
psychotherapy to Petitioner on May 10, 1991. In
addition, she stated:
Some of the major issues of treatment have been
feelings of depression and anxiety, exacerbated by
the decision by the State of Virginia Medical Review
Organization that he be sanctioned. [Petitioner]
described a state of demor[a]lization and a
paralyzing fear of the public humiliation he would
feel if this information were to appear in the
newspapers.
It is my opinion that all of these factors
contributed to his decision not to appeal the SVMRO
decision, even though he insisted that the decision
was unjustified. As these emotional "road blocks"
have gradually abated, he has been able to mobilize
his resources and resume a more assertive posture.
I.G. Ex. 4.
Petitioner argues that he was delayed in filing his
hearing request because of the circumstances of his
medical condition, as described by Dr. Jackson's letter.
He avers that, due to the nature of his medical
condition, he did not freely enter the March 12, 1991
settlement agreement. I.G. Ex. 3.
Petitioner also argues that the settlement agreement
itself is contrary to the notice requirements established
by the I.G.'s regulation and is therefore an invalid and
nonbinding agreement. Petitioner contends that, due to
the illegal nature of the settlement agreement, he
entered into it under "duress" and he was "unduly
influenced." Petitioner argues that "good cause" exists
for his failure to file a hearing request on time, in
view of the fact that the settlement agreement is invalid
and unenforceable. P. Br. 7-11.
The I.G. does not dispute the truthfulness of the
contents of Dr. Jackson's letter describing Petitioner's
medical condition. Instead, the I.G. avers that the
reasons advanced by Petitioner for failing to file a
timely hearing request do not rise to the level of "good
cause." According to the I.G., there are no equities
which militate in favor of granting Petitioner a hearing
before an ALJ.
I agree with the I.G. The regulations do not define
"good cause". The regulations governing Social Security
disability hearings, which are also conducted pursuant to
42 U.S.C. 205(b), do set forth examples of what would
constitute "good cause" for missing the filing deadline
in Social Security disability cases. These examples are
enumerated at 20 C.F.R. 404.911(b)(1)-(9) and include
circumstances such as serious illness, receiving
incorrect information about when and how to request
review, and the destruction of important records. The
examples set forth in these regulations are not inclusive
of all of the circumstances which would qualify for a
"good cause" exemption. However, a review of these
examples reveals a commonality to them. All of these
examples describe circumstances where a party would have
filed a timely hearing request, but for an intervening
event beyond the party's control.
Thus, a finding of "good cause" for an untimely filing
can be made for many reasons. The regulations
contemplate that "good cause" is shown where a party
missed a deadline through no fault of his own and under
circumstances which prevented the party from filing
timely. The regulations contemplate unusual or
unavoidable circumstances where the party was prevented
from filing timely for reasons outside of the control of
the party. Nelson Ramirez-Gonzalez, M.D., DAB CR175
(1992).
In this case, there is no persuasive evidence which would
lead me to conclude that Petitioner did not file a timely
hearing request due to forces beyond his control. On the
contrary, the weight of the evidence establishes that
Petitioner was very much in control of events.
Petitioner was fully aware of his appeal rights, and he
so stated in the March 12, 1991 settlement agreement. He
had the benefit of the assistance of independent legal
counsel, retained by him to protect his interests.
Rather than choosing to exercise his appeal rights, he
affirmatively chose to resolve the matter through
settlement. Petitioner's settlement agreement with the
I.G. evinces an affirmative decision by Petitioner to
waive his right to a hearing, in return for the I.G.'s
agreement not to publish notice of Petitioner's
exclusion. The agreement was signed by Petitioner's
attorney, and Petitioner stated that he concurred with
it and he also signed it.
Petitioner argues that he was suffering form depression
and anxiety which were aggravated by his exclusion. He
contends that his psychological condition constituted a
"serious illness" which prevented him from filing an
appeal. P. Br. 6.
I accept Dr. Jackson's statements that Petitioner
suffered from depression and anxiety. I also accept that
Petitioner was influenced in making the decision to enter
into a settlement agreement with the I.G. by the fear of
public humiliation he would feel if his exclusion
appeared in the newspapers. However, Dr. Jackson says
nothing which would lead to the conclusion that
Petitioner's mental condition was so incapacitating that
it prevented him from taking control of his affairs at
the time he received the exclusion Notice. There is
nothing in Dr. Jackson's report which suggests that
Petitioner lacked the mental competency to understand the
nature and effect of his decision not to appeal the
exclusion determination. In fact, there is no evidence
that Petitioner was even receiving psychiatric treatment
at the time he entered into the settlement agreement.
Dr. Jackson did not begin treating Petitioner until May
10, 1991, more than two months after the settlement
agreement was executed.
The evidence overwhelmingly establishes that Petitioner
was cognizant of his hearing rights and that he freely
chose not to exercise them. Instead, Petitioner, acting
on the advice of counsel, waived his right to a hearing
because he perceived that this decision was in his best
interest. I do not accept Petitioner's contention that
he suffered from a mental disorder which incapacitated
him to the degree that he should be excused from filing
a timely request for a hearing. While Petitioner's
subsequent hearing request indicates that his perception
of what was in his best interest had changed, this does
not amount to "good cause" for extending the 60 day time
limitation.
I am also not persuaded by Petitioner's arguments that
his delay in filing the hearing request is justified
because the settlement agreement between Petitioner and
the I.G. is legally defective. Petitioner's arguments
that the settlement agreement is invalid and not binding
on the parties raises questions which are extraneous to
the central question before me. The issue before me is
whether Petitioner has shown "good cause" for his delay
in filing a hearing request. The issue is not whether
the settlement agreement between the I.G. and Petitioner
should be set aside.
Petitioner voluntarily entered into an agreement in which
he affirmatively chose to waive his hearing rights in
exchange for a benefit conferred on him by the I.G. He
then allowed the 60 day time limitation period to expire
without making any attempts to file a hearing request or
to rescind his agreement not to appeal. Had Petitioner
filed a hearing request within the 60 day time limitation
period, his arguments regarding the legal enforceability
of the settlement agreement arguably could have some
relevance to a determination of whether he is entitled to
a hearing. However, in this case, Petitioner chose not
to file a hearing request in the 60 day time period.
Once the 60 day period expired, he lost his right to a
hearing before an ALJ. The issue of whether the March
12, 1991 agreement is legally enforceable is moot,
because Petitioner lost his right to a hearing by
operation of the regulations after the 60 day period
expired. Petitioner did not exercise his right to
request a hearing in a timely fashion, and he cannot take
advantage of the alleged illegality of the settlement
agreement to excuse him for his delay in filing a hearing
request.
Petitioner also asserts that "if he is otherwise to be
denied an evidentiary hearing on the merits of his
exclusion, that such a denial can only be accomplished
after an evidentiary hearing as to `good cause'". P. Br.
11. This statement implies that Petitioner believes that
he is entitled to an evidentiary hearing on the issue of
"good cause". The regulations confer no such right on
Petitioner. They merely provide that the ALJ "may"
extend the time for filing the hearing request for
"good cause." This language is permissive, rather than
mandatory. While the regulations provide the ALJ with
the authority to consider a late hearing request, this
authority is totally discretionary. The ALJ is under no
obligation to even consider late hearing requests. In
view of this, Petitioner is no way entitled to an
evidentiary hearing on the issue of "good cause", as he
suggests.
Furthermore, there is no need to develop the record
further on the issue of "good cause" through an
evidentiary hearing, as Petitioner suggests. I have
concluded, based on the undisputed material facts in the
record before me, that Petitioner has failed to show
"good cause" for his failure to file a timely hearing
request. Since there are no genuine issues of material
fact which would require the submission of additional
evidence, there is no need for an evidentiary hearing.
CONCLUSION
Petitioner has admitted, and the evidence has shown,
that his request for a hearing before an ALJ was not
filed on time. In addition, Petitioner has not proffered
any persuasive reason, argument, or evidence that meets
his burden to show that there is "good cause" to excuse
his late filing. I therefore grant the I.G.'s motion to
dismiss this case and enter summary disposition in favor
of the I.G.
Charles E. Stratton
Administrative Law Judge
1.
Throughout this proceeding, Petitioner has not
contested either the authenticity or the truth of the
contents of the five exhibits submitted by the I.G. in
support of his motion to dismiss. I am therefore
admitting these five exhibits into evidence, and I will
refer to them as I.G. Ex. (number/page). Other
references to the record will be cited in this decision
as follows:
I.G. Brief I.G. Br. (page)
Petitioner Response P. Br. (page)
Brief
I.G. Reply Brief I.G. R. Br. (page)
2.
Some of my statements in the sections preceding these
formal findings and conclusions are also findings of fact
and conclusions of law (FFCL). To the extent that they
are not repeated here, they were not in controversy.
3.
The new regulations do not provide the opportunity to
have a late hearing request considered under the I.G.'s
interpretation of 42 C.F.R. 1005.2(c). However, it is
arguable that an ALJ has inherent discretionary authority
to consider late hearing requests upon the showing of
good cause under 42 C.F.R. 1005.2(c) even though that
provision does not expressly confer that authority.
Since I have decided that the pertinent section of the
regulations adopted on January 29, 1992 does not apply to
this case, I need not decide whether the I.G.'s
interpretation of the new regulations is correct.
4.
The decision in Barranco provides a thorough analysis
of the Supreme Court's decision in Bowen v. Georgetown
University, United States v. Murphy and related cases, in
the context of the applicability of the new regulations
to pending cases.