$05:Exclusion Case
Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD
Civil Remedies Division
In the Case of:
Keith O. Irby,
Petitioner,
- v. -
The Inspector General.
Date: July 24, 1996
Docket No. C-96-253
Decision No. CR427
DECISION
I decide that I am without authority to hear and decide Petitionerþs May 2, 1996 request for a hearing.
I. Background
On July 13, 1994, I issued a decision in the cases of Petitioners Keith and
Michelle Irby. Keith O. Irby and
Michelle P. Irby, R.Ph., DAB CR321 (1994). On August 10, 1994, Petitioner Keith
Irby filed a request for
"Appeal and Rehearing." Petitioner Michelle Irby did not request either
an appeal or a rehearing in her
case.
On August 25, 1994, I denied the request by Petitioner Keith Irby (whom I refer
to hereinafter as
"Petitioner") that I rehear his case. I considered Petitioner Keith
Irby's assertions concerning findings I
made in my July 13, 1994 decision in his case, and I concluded that my findings
are amply supported by
the record. On August 26, 1994, the Appellate Division of the Departmental Appeals
Board docketed
Petitioner's request for appellate review of my July 13, 1994 decision. On September
26, 1994, an
appellate panel of the Board declined to review my July 13, 1994 decision in
Petitioner's case.
On May 2, 1996, Petitioner wrote to me. P. Ex. 1. 1/ In his letter, he requested
þa complete departure
from mandatory sanctions and suspensions imposed by the [administrative law
judge], based on . . . new
information and discovery --þ P. Ex. 1 at 1.
Petitionerþs May 2, 1996 letter is a request that I reopen and revise
my July 13, 1994 decision in his case.
2/ I directed the Inspector General (I.G.) to respond to Petitionerþs
May 2, 1996 letter. In her response,
the I.G. argued that I am without authority to hear and decide Petitionerþs
request. On July 7, 1996,
Petitioner submitted a rebuttal statement. P. Ex. 2. In addition, on July 8,
1996, Petitioner submitted a
document entitled "Petitioner Conjunctive Relief and Deposition Request."
P. Ex. 3.
II. Issue, findings of fact and conclusions of law
The issue is whether I have authority to hear and decide Petitioner's May 2,
1996 request to reopen and
revise my July 13, 1994 decision. In concluding that I do not have such authority,
I make the following
findings of fact and conclusions of law (Findings). These Findings address only
the question of my
authority to hear and decide Petitioner's May 2, 1996 request to reopen and
revise my July 13, 1994
decision in Petitionerþs case. I make no findings concerning the merits
of Petitionerþs May 2, 1996
request that I reopen and revise my July 13, 1994 decision, inasmuch as I have
no authority to do so. I
discuss my Findings below, at Part III of this decision.
1. Petitioner requested Departmental Appeals Board (DAB) review of my July
13, 1994 decision
in his case, and on September 26, 1994, the appellate panel declined to do so.
2. Petitioner made his May 2, 1996 request that I reopen and revise my July
13, 1994 decision
more than 60 days after the date of the notice of the decision.
3. I do not have authority to hear and decide Petitioner's May 2, 1996 request
to reopen or revise
my July 13, 1994 decision in Petitionerþs case under regulations contained
in 42 C.F.R. Part 498.
4. I do not have authority to hear and decide Petitioner's May 2, 1996 request
to reopen or revise
my July 13, 1994 decision in Petitionerþs case under regulations contained
in 42 C.F.R. Part 1005.
III. Discussion
Petitioner made his original hearing request in 1990. The regulations which
governed the conduct of
hearings in cases involving the I.G., which were in effect prior to 1992, are
at 42 C.F.R. Part 498. 3/
Beginning in 1992, new regulations governing the conduct of hearings in cases
involving the I.G. were
published at 42 C.F.R. Part 1005.
The regulations contained in Part 1005 would appear to govern Petitionerþs
current request, because he
made the request after the publication date of the Part 1005 regulations, and
the Part 1005 regulations are
procedural, and not substantive regulations. However, in order to be fair to
Petitioner, and to be sure that
there remain no open questions in his case, I have evaluated his request that
I reopen and revise my July
13, 1994 decision under both the Part 498 and the Part 1005 regulations. I conclude
that I lack authority
under either Part 498 or Part 1005 to reopen and revise my decision in Petitionerþs
case.
A. The relevant facts (Findings 1 - 2)
I do not consider to be relevant here the facts that Petitioner alleges in
his submissions dated May 2, 1996,
July 7, 1996, or July 8, 1996. See P. Ex. 1, P. Ex. 2, P. Ex. 3. The issue before
me is whether I have the
authority to consider these alleged facts. As I discuss below, my authority
to do so depends on the timing
of Petitionerþs request.
For purposes of this decision, the relevant facts are as follows. I issued my
decision in Petitionerþs case on
July 13, 1994. Petitioner requested DAB appellate review of my decision, and
the appellate panel declined
to do so on September 26, 1994. On May 2, 1996 Petitioner requested me to reopen
and revise my July 13,
1994 decision in his case. Thus, more than 60 days elapsed between the date
of the notice of the July 13,
1994 decision and the date that Petitioner requested me to reopen and revise
the decision on May 2, 1996.
B. Petitionerþs request, considered under the Part 498 regulations (Finding 3)
Under 42 C.F.R. 498.100(a), an administrative law judge or appellate panel
decision may be reopened,
within 60 days from the date of the notice of decision, upon the motion of the
administrative law judge or
the appellate panel or upon the petition of a party to the hearing. 4/ The meaning
of this section is clarified
by 42 C.F.R. 498.100(b), which provides that only the appellate panel may reopen
its decision. 5/ Where
an appellate panel has issued a final decision in a case, only it has the authority
to reopen that decision.
As I read 42 C.F.R. 498.100, beginning on September 26, 1994, the date of the
appellate panelþs decision
to decline to review my July 13, 1994 decision, I no longer had authority to
reopen and revise my July 13,
1994 decision. The authority to reopen and revise that decision became vested
with the appellate panel,
inasmuch as its decision to decline review became the final decision in the
case. 42 C.F.R. 498.100(b).
Furthermore, even if I had the authority to reopen a decision which I had made
in a case despite a
subsequent appellate panel decision in that case, I would not have that authority
here. My authority to
reopen a decision ends 60 days after the date of the notice of the decision.
Petitioner's May 2, 1996 request
to reopen and revise my July 13, 1996 decision in his case was made more than
60 days after the date of
the notice of the decision. Thus, I no longer have authority under 42 C.F.R.
498.100(a) to reopen and
revise my July 13, 1994 decision, and I may not consider Petitionerþs
request that I do so.
C. Petitionerþs request, considered under the Part 1005 regulations (Finding 4)
Unlike the Part 498 regulations, the Part 1005 regulations contain no language
relating specifically to
reopening or revising an administrative law judge or an appellate panel decision.
See 42 C.F.R. 1005.4,
1005.20, 1005.21. The regulations provide that, unless appealed, an administrative
law judge decision will
become final and binding on the parties 30 days from the date that the administrative
law judge serves the
parties with a copy of the decision. 42 C.F.R. 1005.20(d). The regulations provide
additionally that a
decision by an appellate panel will become final and binding 60 days from the
date that it serves the parties
with a copy of its decision. 42 C.F.R. 1005.21(j).
A logical reading of 42 C.F.R. 1005.20(d) is that it permits the administrative
law judge to consider
reopening and revising a decision during the 30-day time period prior to the
decision becoming final and
binding, or during the dates between the date of service of a decision on the
parties and the date of appeal
of that decision. 6/ However, it is also logical to read the regulations as
precluding the administrative law
judge from reopening or revising a decision after that decision becomes final
and binding or after DAB
appellate review is sought.
Petitioner's May 2, 1996 request to reopen my July 13, 1994 decision was not
made within 30 days of my
serving a copy of that decision on him. Moreover, his May 2, 1996 request was
made after he sought DAB
appellate review. Therefore, I am without authority to hear and decide Petitioner's
May 2, 1996 request to
reopen and revise my July 13, 1994 decision under the Part 1005 regulations.
IV. Conclusion
I conclude that I have no authority to hear and decide Petitionerþs May
2, 1996 request that I reopen and
revise my July 13, 1994 decision in his case. Therefore, I dismiss his request
for a hearing.
________________________
Steven T. Kessel
Administrative Law Judge
1. Although Petitioner did not designate his May 2, 1996 letter as an exhibit,
I have identified it as P. Ex.
1, because it appears to contain statements by Petitioner that Petitioner considers
to be evidentiary.
Likewise, I have identified Petitioner's July 7, 1996 and July 8, 1996 submissions
as P. Ex. 2 and P. Ex. 3
respectively because they appear also to contain statements by Petitioner that
Petitioner considers to be
evidentiary. For purposes of making a record, I am receiving into evidence P.
Ex. 1 - 3.
2. Petitionerþs letter is ambiguous, in that it might be construed to
be a request that I reopen and revise
my decisions in both his case and that of Petitioner Michelle Irby. However,
Petitioner Michelle Irby did
not sign the letter and she has not indicated that she desires that Petitioner
Keith Irby represent her. I
conclude, in the absence of an affirmative request from Petitioner Michelle
Irby that I reopen and revise
my July 13, 1996 decision, that Petitioner Michelle Irby has not requested that
I reopen and revise my
decision in her case.
3. The Part 498 regulations continue to govern hearings in cases involving
the Health Care Financing
Administration.
4. The text of the regulation refers not to the DAB, but to the þAppeals
Council.þ The reference is to the
Appeals Council of the Office of Hearings and Appeals of the Social Security
Administration. The text
was published at a time when the Secretary of the Department of Health and Human
Services (the
Secretary) had delegated authority to the Appeals Council to hear appeals from
decisions of administrative
law judges made pursuant to section 1128 of the Social Security Act. However,
the Secretary has
subsequently redelegated the authority to the DAB to hear and decide such appeals.
5. As with the previous section, this section refers to the Appeals Council.
6. I do not have authority to interpret regulations which affect the handling
of appeals at the DAB.
Therefore, I am making no decision concerning whether an appellate panel might
have authority to reopen
or revise its decision in a case, under 42 C.F.R. 1005.21(j).