Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD
Civil Remedies Division
In the Case of:
Rikantas (Rik) Majauskas, D.O.,
Petitioner,
- v. -
The Inspector General.
DATE: October 22, 1996
Docket No. C-96-061
Decision No. CR441
DECISION
This case is before me on Petitioner's December 30, 1995 request
for a hearing on his exclusion 1/ and on the subsequent
briefing on summary disposition regarding Petitioner's Health
Education Assistance Loan (HEAL) indebtedness. I find that there
is no dispute as to any material fact that requires an in-person
hearing. I find that the I.G. properly excluded Petitioner under
section 1128(b)(14) of the Act. 2/ I do not decide whether the
I.G. properly excluded Petitioner under section 1892 of the Act.
FINDINGS OF FACT AND CONCLUSIONS OF LAW (Findings)
1. In July 1981, August 1982, July 1983, January 1984, and June
1984, while he was a student at the University of Health Sciences
in Kansas City, Missouri, Petitioner applied for and received
five Health Education Assistance Loans (HEALs) in amounts of
$15,000; $20,000; $15,000; $5000; and $20,000, respectively.
I.G. Exs. 2, 4, 5, 6.
2. HEALs are insured by the Secretary of Health and Human
Services (Secretary). 42 U.S.C. § 292-292p.
3. Petitioner signed promissory notes in which he agreed to
repay each of his HEALs by making payments on the first day of
the tenth month after he ceased being a full-time student at a
HEAL recognized school or an intern or resident in an accredited
program. I.G. Exs. 3, 8, 9, 10, 11.
4. Under the terms contained in the promissory notes in all
five of Petitioner's HEALs, Petitioner was obligated to repay his
HEALs in not less than ten and no more than 25 years, and to make
a minimum annual payment of at least $600 or an amount equal to
the annual interest on the unpaid principal balance, whichever is
greater. I.G. Exs. 3, 8, 9, 10, 11.
5. Petitioner graduated from the University of Health Sciences
in Kansas City, Missouri, in May 1985. I.G. Ex. 21.
6. On November 7, 1985, Petitioner was sent a repayment
schedule which informed him that he was to begin monthly
repayments of his HEALs beginning February 16, 1986, in the
amount of $783.64. I.G. Ex. 36.
7. Petitioner was granted a deferment on his repayments from
July 1, 1985 through June 30, 1986. I.G. Ex. 12.
8. From May 21, 1987 through December 7, 1987, Petitioner made
six payments on his HEALs. The payments totalled $6224.39. I.G.
Ex. 13.
9. Petitioner requested and received three forbearances -- the
first from December 1, 1987 through May 31, 1988; the second from
August 1, 1988 through January 31, 1989; and the third from
February 1, 1989 through April 30, 1989. I.G. Exs. 14, 15, 16.
10. During Petitioner's forbearances, no payments were
required, but interest continued to accrue on the principal.
I.G. Exs. 14, 15, 16.
11. During his forbearances, Petitioner did make several
payments which served to extend his repayment date on his HEALs.
I.G. Exs. 13 - 16.
12. On August 14, 1989, Petitioner made an additional payment of
$688.16 and did not make any other payments on his HEALs. I.G.
Ex. 13.
13. All of Petitioner's HEALs were eventually purchased by the
Student Loan Marketing Association (SLMA). I.G. Ex. 13.
14. SLMA declared Petitioner in default on his HEALs and, on
March 4, 1991, filed a complaint in the Circuit Court for the
15th Judicial Circuit in and for Palm Beach, Florida, requesting
judgment in the amount of $141,011.47. I.G. Exs. 17, 18.
15. On April 3, 1991, in the Circuit Court for the 15th Judicial
Circuit in and for Palm Beach, Florida, SLMA was awarded a
judgment against Petitioner for default on his HEALs in the
amount of $161,548.93 ($141,011.47 plus interest and court
costs). I.G. Ex. 18.
16. In a letter dated July 23, 1992, SLMA notified Petitioner
that: 1) it had been awarded judgment against Petitioner in the
amount of $161,548.93; 2) Petitioner was responsible for any
interest on the judgment accruing after the judgment date; and 3)
it was requesting that Petitioner pay the amount due. I.G. Ex.
19.
17. Petitioner did not respond to SLMA's July 23, 1992 letter.
18. On July 23, 1992, SLMA assigned the judgment against
Petitioner to the Public Health Service. I.G. Ex. 20.
19. SLMA filed an insurance claim on Petitioner's HEALs with the
Department of Health and Human Services (HHS), which HHS paid in
the amount of $172,714.36. I.G. Exs. 21 - 25.
20. In a letter dated September 30, 1992, PHS 1) notified
Petitioner that his HEALs had been assigned to the United States
Government; 2) asked for full repayment; 3) informed Petitioner
how to enter into a repayment agreement if Petitioner was unable
to make full payment on his HEAL debt; and 4) informed Petitioner
that his account would be referred to the Department of Justice
for enforced collection and to the I.G. for initiation of an
exclusion from participation as a provider in the Medicare
program. I.G. Ex. 26.
21. Petitioner did not respond to PHS's September 30, 1992
letter nor did he offer repayment.
22. In a letter dated December 31, 1992, PHS informed Petitioner
that it had referred Petitioner's HEALs to the PHS collection
agency and that if Petitioner did not enter into a repayment
agreement or pay the debt in full, his account would be referred
to the Department of Justice for collection. I.G. Ex. 27.
23. Petitioner did not respond to PHS's December 31, 1992
letter.
24. Nothing in the record indicates any collection activity
occurred regarding Petitioner's HEAL debt from December 31, 1992
until October 5, 1993.
25. In a letter dated October 5, 1993, PHS again requested
Petitioner repay his HEAL debt or enter into a repayment
agreement. I.G. Ex. 28.
26. Petitioner did not respond to PHS's October 5, 1993 letter.
27. In a letter dated November 16, 1993, PHS advised Petitioner
that he could repay the outstanding balance on his HEALs by
negotiating a repayment agreement or by having his Medicare or
Medicaid reimbursements directly forwarded to PHS to be applied
to his indebtedness. I.G. Ex. 29.
28. Contained in the November 16, 1993 letter were instructions
on how Petitioner could establish a repayment agreement. I.G.
Exs. 29, 30.
29. The November 16, 1993 letter informed Petitioner that, if he
were unable or unwilling to negotiate an offset or repayment
agreement within 60 days, PHS would immediately refer the case to
the I.G., who would then impose an exclusion against Petitioner
from participation in the Medicare program and direct that
Petitioner be excluded from State health care programs such as
Medicaid. I.G. Exs. 29, 30.
30. The November 16, 1993 letter informed Petitioner that an
exclusion would result in him receiving no payment for any item
or service furnished, ordered or prescribed by Petitioner,
including payment to Petitioner's employer. I.G. Exs. 29, 30.
31. Petitioner did not respond to PHS's November 16, 1993
letter.
32. On May 16, 1995, PHS again sent a letter to Petitioner
informing him that he had 60 days to resolve his delinquent HEALs
and that failure to respond would result in his case being
referred to the U.S. Attorney for enforced collection, and that,
if he did not enter into an offset or repayment agreement within
60 days, PHS would immediately refer his case to the I.G. for
initiation of an exclusion from the Medicare program. I.G. Ex.
31.
33. Petitioner did not respond to PHS's May 16, 1995 letter.
34. On July 20, 1995, PHS referred Petitioner's HEAL debt to the
Department of Justice for enforcement of the judgment that had
been obtained against Petitioner. I.G. Ex. 32.
35. On August 21, 1995, to enforce the State court judgment that
SLMA had obtained in Florida, the U.S. Attorney in Hawaii filed
in the U.S. District Court, District of Hawaii, the State court
judgment in the case of Student Loan Marketing Association v.
Petitioner. I.G. Ex. 37; Finding 5.
36. On October 27, 1995, the I.G. informed Petitioner that, as a
result of his failure to repay his HEAL debt or to enter into an
agreement to repay the debt, he would be excluded, effective
November 16, 1995, from participation in the Medicare program
pursuant to section 1892 of the Act and from participation in
Medicare and State health care programs pursuant to section
1128(b)(14) of the Act. I.G. Ex. 1.
37. As of the date of this Decision, Petitioner is in default on
his HEAL debt, has not repaid his HEAL debt, and has not entered
into an agreement acceptable to PHS to repay his HEAL debt.
38. On August 28, 1995, Petitioner entered into an agreement
with the U.S. Attorney's Office for the District of Hawaii to
make repayments of $100 per month on the balance due (as of
August 29, 1995) of $246,906.10. I.G. Ex. 33.
39. The August 28 agreement between Petitioner and the U.S.
Attorney's Office in Hawaii was not acceptable to the I.G. I.G.
Exs. 33, 34; P. Ex. 6.
40. Petitioner was specifically informed that the I.G. required
payments of $650 monthly until March of 1995, then subsequent
payments of $1500 per month. P. Ex. 6.
41. In agreeing to accept $100 payments from Petitioner, the
U.S. Attorney's Office was not acting on behalf of the I.G. P.
Exs. 6, 7.
42. On November 15, 1995, Petitioner offered to repay $75,000 of
his HEAL debt over a period of 120 months (10 years). P. Ex. 7.
43. In February 1996, the U.S. Attorney's Office in Hawaii
rejected Petitioner's November 15, 1995 offer and counteroffered
to accept $826 per month in repayments from Petitioner for a one
year period and reevaluate after that time. P. Ex. 7.
44. The August 28, 1995 agreement whereby Petitioner was
permitted to make payments in the amount of $100 per month was an
interim agreement and was not intended nor did Petitioner
interpret it as a full and final resolution of Petitioner's HEAL
debt. Findings 37 - 43.
45. The Secretary may exclude any individual whom PHS determines
has defaulted on repayments of scholarships or loans made or
secured in part by HHS. Act, section 1128(b)(14).
46. Petitioner's HEALs were made or secured by PHS on behalf of
HHS. I.G. Exs. 1 - 37; Findings 1 - 6.
47. Petitioner is in default of his HEAL obligations. I.G. Ex.
1 - 37; Findings 1 - 6.
48. The I.G. may exclude a party from participating in Medicare
or Medicaid who:
is in default on repayments of scholarship
obligations or loans in connection with health
professions education made or secured, in whole or in
part, by the Secretary and with respect to whom the
Secretary has taken all reasonable steps available to
the Secretary to secure repayment of such obligations
or loans . . .
Section 1128(b)(14) of the Act.
49. An exclusion imposed pursuant to section 1128(b)(14) of the
Act is reasonable if the excluded party is excluded until such
time as PHS notifies the I.G. that the party's default has been
cured or the obligations have been resolved to PHS's
satisfaction. 42 C.F.R. § 1001.1501(b).
50. At no time was Petitioner informed that his HEAL debt had
been cured or that his HEAL debt had been resolved to PHS's
satisfaction. I.G. Exs. 1 - 37; P. Exs. 1 - 11.
51. At no time was Petitioner told that the agreement that he
had reached with the U.S. Attorney's Office in Hawaii to repay
$100 per month had been agreed to by PHS, nor was Petitioner
informed that this agreement would stay the effect of his
exclusion. I.G. Exs. 1 - 37; P. Exs. 1 - 11.
52. The interest accruing on Petitioner's HEAL debt is
approximately $2466 per month. I.G. Ex. 34.
53. A repayment of $100 per month on Petitioner's HEAL debt
would not suffice to pay the monthly interest accruing on the
debt. I.G. Exs. Finding 52.
54. A repayment of $100 per month would not satisfy Petitioner's
HEAL debt.
55. The I.G. has the authority to exclude any individual that
PHS determines is in default on repayments of scholarship
obligations or loans in connection with health professions
education made or secured in whole or in part by the Secretary.
42 C.F.R. § 1001.1501.
56. All reasonable steps available to secure repayment of a HEAL
debt will have been achieved where PHS offers the debtor a
Medicare offset arrangement as required by section 1892 of the
Act. 42 C.F.R. § 1001.1501(a)(2).
57. Section 1892(a)(2) states in part that agreements to collect
HEAL debts shall provide that:
(A) deductions shall be made from the amounts
otherwise payable to the individual under . . .
[Medicare], in accordance with a formula and schedule
agreed to by the Secretary and the individual, until
such past-due obligation (and accrued interest) have
been repaid.
58. PHS offered to enter into a Medicare offset agreement with
Petitioner as a means to allow Petitioner to satisfy his HEAL
debt. I.G. Ex. 29, 31.
59. Petitioner did not accept PHS's offer of a Medicare offset
agreement to satisfy Petitioner's HEAL debt.
60. Petitioner has failed to take any meaningful steps to
satisfy his HEAL debt. I.G. Exs. 1 - 37; P. Exs. 1 - 11.
61. The I.G. properly excluded Petitioner from participating as
a provider in Medicare and properly directed that Petitioner be
excluded from Medicaid and other State health care programs.
Findings 1 - 60.
62. Petitioner's exclusion until such time as PHS notifies the
I.G. 1) that Petitioner's HEAL default is cured or 2) that
Petitioner's HEAL debt has been resolved to PHS's satisfaction is
appropriate and reasonable. Findings 1 - 61.
DISCUSSION
The basic facts of this case are not in dispute. Petitioner
admits that he borrowed a total of $75,000 under the HEAL
program. Under the terms of these loans, after his graduation
from the University of Health Sciences in Kansas City, Missouri
in May 1985, Petitioner was to begin repayment on his HEAL loan.
Petitioner received three forbearances on his repayments, under
which, with the exception of some minor payments, extended the
time he was to begin repayment to May of 1989. Finding 9.
However, subsequent to his deferments, Petitioner failed to make
repayments in accordance with any type of regular repayment
schedule and was declared in default on his HEAL obligations in
April of 1991. It was not until July 23, 1992 that SLMA sent a
letter to Petitioner informing him that the judgment had been
entered against him, that he was responsible for any interest
accruing after the judgment date, and requesting Petitioner pay
the amount he owed. Petitioner did not respond to this letter,
nor did he initiate any type of repayment. I.G. Ex. 19.
Additional letters were sent to Petitioner over a period of
several years, each demanding repayment on his HEAL debt.
Several of these letters included instructions on how to enter
into a repayment agreement and at least one offered to permit
Petitioner to repay his HEAL debt via a Medicare offset
agreement, whereby Petitioner would assign his Medicare billings
to PHS for repayment on his HEAL debt. Petitioner did not
respond to these letters and did not take any steps to repay his
HEAL debt with PHS. Accordingly, there is no dispute in this
case that Petitioner is in default on his HEAL obligations. 3/
The only issue that Petitioner has raised involves his agreement
with the U.S. Attorney's Office in Hawaii to repay $100 per month
on his HEAL debt. Petitioner contends that the Department of
Justice has acted as an agent for HHS in collecting Petitioner's
HEAL debt. Petitioner contends that an August 28, 1995 letter
from the U.S. Attorney's Office in Hawaii established payment
terms through which Petitioner would make payments on his HEAL
debt. According to Petitioner, these payment terms of $100 per
month are binding upon HHS, as the Department of Justice has
acted as agent for HHS in settling this matter.
Examination of the facts of this case leads me to conclude that
it is disingenuous for Petitioner to argue in this case that this
agreement with the U.S. Attorney's Office in Hawaii satisfies his
HEAL loan such that he should not be excluded. Petitioner failed
to make repayments on his HEAL obligations after borrowing the
money under terms which clearly required repayment within one
year of his graduation from the University of Health Sciences in
May 1985. Subsequent to his graduation, Petitioner requested and
received three separate deferments for repaying his HEAL
obligations, during which time he made de minimis payments when
viewed against his entire debt. However, through a combination
of making de minimis payments and obtaining deferments,
Petitioner was able legitimately to defer the repayment date of
his HEALs.
With the exception of one payment in August 1989, the evidence
indicates that Petitioner then simply ignored all of the
subsequent attempts to obtain repayments on his HEAL obligations
and made no further payments. Even after being declared in
default and having a judgment entered against him, Petitioner
still chose to ignore his HEAL obligations. While at that time
Petitioner may have thought that he could not repay his debt, the
debt became larger and continued to grow to its present rate
because of Petitioner's steadfast refusal to enter into any type
of repayment agreement. Admittedly, PHS took a number of years
to bring the case to the point of excluding Petitioner and the
record before me is devoid of any enforcement actions between
November 13, 1993 to May 16, 1995. Petitioner did not
specifically make this argument, but his brief seems to imply
that until he received an August 14, 1995 letter from the U.S.
Attorney's Office in Hawaii, he was lulled into believing that he
would not be subject to meaningful enforcement actions to obtain
repayment on his HEAL obligations.
However, now Petitioner cites the acceptance by the Department of
Justice of the $100 per month payment schedule as support for his
position that such repayment should bar the I.G. from excluding
him. Such argument is without merit.
The evidence contradicts Petitioner's contention that the U.S.
Attorney's Office in Hawaii has established and represented
itself as an agent for HHS. The letter Petitioner cites in
support of this contention (P. Ex. 2) is nothing more than a
memorialization of an agreement between Petitioner and the
Department of Justice. 4/ The letter does not mention or
implicateHHS. Nothing in that letter indicates that HHS has
agreed to this level of repayment as satisfactory.
It is not necessary or appropriate for me to speculate about why
the Department of Justice accepted a $100 per month payment from
Petitioner when Petitioner owed over $160,000 on his HEAL
obligations. However, it is unequivocal that the agreement
Petitioner entered into with the Department of Justice was not
done with the consent of any official of HHS, nor was it done
with the Department of Justice acting as the agent for HHS.
Petitioner did not offer proof to the contrary.
Indeed, the record contradicts Petitioner's assertion and
indicates that the $100 per month payment schedule was made in
response to a collection action taken by the Department of
Justice. I.G. Ex. 37. A careful examination of the record
reveals that the $100 per month repayment agreement Petitioner
reached with the U.S. Attorney on August 28, 1995 (P. Ex. 2) does
not even mention Petitioner's HEAL debt. The agreement merely
acts to stay the U.S. Attorney from taking further legal action
pending submission of further documentation by Petitioner. The
fact that, on February 16, 1996, the U.S. Attorney rejected
Petitioner's settlement offer and instead offered to settle the
matter if Petitioner would agree to submit monthly payments of
$826 unequivocally supports that the $100 per month payments
Petitioner agreed to were not viewed as satisfaction of his HEAL
debt. P. Ex. 7.
Moreover, the record reflects that a Medicare exclusion can be
stayed only if the HEAL debtor agrees to a formal settlement
agreement which must be approved by the U.S. Attorney, PHS and
the I.G. I.G. Ex. 34. Nothing in the record even remotely
supports that HHS agreed to accept Petitioner's payment of $100
per month as satisfaction of Petitioner's HEAL debt.
It is not credible that Petitioner formed a belief that payments
of $100 per month on a debt of over $160,000 would satisfy PHS.
As the I.G. points out in her brief, at $100 per month, such
repayments would actually result in Petitioner's HEAL debt
increasing by $30,000 per year. Therefore, not only is there no
evidence in the record to support Petitioner's contention that
the Department of Justice was acting as the agent of HHS or PHS
when it compelled him to repay $100 per month, it would be both
subjectively and objectively unreasonable for anyone to believe
this.
Such a belief is unreasonable given that $100 per month is not a
significant amount of repayment when compared to Petitioner's
indebtedness. Indeed, the record provides ample evidence that
even Petitioner did not believe that the $100 per month payments
were a full and final resolution of his HEAL default.
Specifically, after Petitioner and the U.S. Attorney in Hawaii
had signed off on the $100 per month agreement to begin repayment
of Petitioner's HEAL default, Petitioner was informed that such
terms were not acceptable to the I.G. P. Ex. 6. Petitioner
concedes that he was informed that the I.G. required payments of
$650 monthly until March of 1995, then subsequent payments of
$1500 per month. P. Ex. 6. Although Petitioner claims that he
could not have met such repayment terms, this communication
disproves Petitioner's contention that he believed the U.S.
Attorney to be acting as agent for PHS and the I.G. when it
agreed to the $100 per month payment schedule.
Furthermore, despite Petitioner's contentions, the evidence
establishes that the $100 per month payments which Petitioner
agreed to with the U.S. Attorney were nothing more than an
interim agreement pending final resolution of Petitioner's
repayment terms. On November 15, 1995, Petitioner offered to
repay $75,000 of his HEAL debt over a 120 month period. In
February 1996, the U.S. Attorney in Hawaii rejected Petitioner's
November 15, 1995 offer and counteroffered to accept $826 per
month in repayments from Petitioner for a one-year period and
reevaluate after that time. P. Ex. 7. Although Petitioner
rejected these terms, this settlement offer establishes that the
$100 per month payments Petitioner was permitted to make at that
time were not to be any type of permanent payment schedule
through which Petitioner would be permitted to satisfy his HEAL
debt. Additionally, the evidence on this sequence of events
establishes that Petitioner knew that the $100 per month
repayment schedule was an interim agreement only and was not
going to be the full and final settlement through which he would
be permitted to repay his HEAL obligations.
In summary, Petitioner cannot credibly claim that the $100 per
month payments were a permanent arrangement through which he
would be permitted to repay the HEAL obligations upon which he
had defaulted, nor can Petitioner seriously contend that he
believed that the I.G. would accept or had accepted $100 per
month in payments on behalf of PHS.
The regulations provide PHS with discretion to allow an
individual who has defaulted on his HEAL obligations to
participate as a Medicare provider while making less than full
repayments, as long as the excluded individual has resolved his
obligations to PHS's satisfaction. Petitioner can point to
nothing in the record which indicates that PHS or HHS was
satisfied with Petitioner's repayment of $100 per month on his
HEAL debt. As I stated above, the record directly contradicts
Petitioner's assertions. Petitioner's only proffer of evidence
in this area is an unsigned statement alleging facts which would
support that the U.S. Attorney was acting as an agent for DHHS in
obtaining a $100 per month repayment on Petitioner's HEAL debt.
This "affidavit" is merely a typewritten letter by Petitioner
with a signature line that is blank. As such, it does nothing
more than restate Petitioner's position. Even if believed, it is
of no probative value because it is directly contradicted by much
stronger, credible evidence as described above.
Section 1128(b)(14) permits the exclusion of an individual for
default on HEAL debt repayment, provided that the Secretary has
taken all reasonable steps to secure repayment of those HEAL
obligations. There is no dispute that Petitioner is in default
on his HEAL obligations. The regulations provide that all
reasonable steps will have been taken to collect a HEAL debt if,
prior to imposing an exclusion, PHS offers the individual who is
in default a Medicare offset agreement. 42 C.F.R.
§ 1001.1501(a)(2). Despite Petitioner's assertions to the
contrary, this offer was made to him on two separate occasions.
Findings 29, 32; I.G. Exs. 29, 30, and 31. I find that the offer
of an offset agreement on just one occasion would satisfy the
requirement that the Secretary take all reasonable steps to
secure repayment of Petitioner's HEAL obligations. In this case,
the offer was made twice and, as such, more than satisfies the
regulatory requirement.
Additionally, I do not construe the term "all reasonable steps"
to mean that the Secretary should accept repayment agreements
which do not accomplish the objective of repayment, or which
require the Secretary to enter into agreements that are not in
the public interest. Mohammad H. Azarpira, D.D.S., DAB CR372
(1995). Clearly, a $100 per month repayment agreement which
would cause Petitioner's debt to grow by $30,000 per year would
not accomplish the objective of repayment and could be viewed as
being not in the public interest. At a minimum, Petitioner could
be expected to make payments sufficient to cover the interest on
the debt and keep it from accruing.
Petitioner's contentions that PHS's demands of repayment are
unfair given his financial status are irrelevant where 1) PHS
offered Petitioner the opportunity to enter into a Medicare
offset agreement and 2) Petitioner ignored requests for repayment
of his HEAL debt such that he allowed it to accumulate to its
present level, thus making his potential payments more onerous.
Petitioner never made an offer to repay his HEAL obligations at a
rate which would keep the interest from accruing, and PHS would
not necessarily be obligated to accept such an agreement if
Petitioner offered it. However, primarily because Petitioner has
avoided his HEAL obligations for so long, Petitioner contends
that the debt has accrued to such a level that a repayment
schedule that would simply keep the interest from accruing would
be too burdensome financially.
Neither the I.G. nor PHS is under any obligation to accept
settlement terms which do not serve the public interest or which
do not attain the goal of repayment of Petitioner's HEAL debt. A
repayment of $100 per month would neither serve the public
interest nor attain repayment of Petitioner's HEAL debt.
Additionally, Petitioner has explicitly rejected the viable
alternative of a Medicare offset agreement. Accordingly,
Petitioner was properly excluded by the I.G. pursuant to section
1128(b)(14) of the Act.
Regarding Petitioner's exclusion under section 1892, it is
unclear whether I have the authority to review an exclusion
imposed pursuant to this section. Azarpira at 1, James F.
Cleary, D.D.S., DAB CR252 (1993); Charles K. Angelo, Jr. M.D.,
DAB CR290 (1993); Joseph Marcel-Saint Louis, M.D., DAB CR320
(1994). The Secretary has provided me with no explicit
regulations or delegation of authority to conduct such hearings,
although a preliminary analysis issued by an appellate panel of
the DAB seems to indicate the appellate panel's position that
exclusion pursuant to section 1892 provides implicitly authority
to conduct a hearing. See Appellate Panel's Preliminary Analysis
in Charles K. Angelo, Docket No. C-92-130. However, since I find
that Petitioner is properly excluded under section 1128(b)(14) of
the Act, I find no need to reach the issue of whether he was
properly excluded under section 1892 of the Act. Were I to reach
this issue, I would find that the facts and rationale contained
in this Decision which supports Petitioner's exclusion under
section 1128(b)(14) would also support Petitioner's exclusion
under section 1892.
In summary, I conclude that the term of exclusion directed and
imposed by the I.G. pursuant to section 1128(b)(14) is
reasonable, given that 1) Petitioner failed to respond to
numerous letters and offers to resolve his HEAL debt; 2) failed
to respond to PHS's offer of a Medicare offset agreement; 3)
questionably views his $100 per month temporary agreement with
the U.S. Attorney as satisfaction of his HEAL debt despite the
fact HHS has never indicated that such payments would satisfy
Petitioner's HEAL debt. Petitioner has never given any
indication that he will ever satisfy his HEAL debt, and the I.G.
is correct to exclude him until such time as PHS, as the lawful
delegate of the Secretary, is satisfied that he will. I find
that Petitioner's exclusion until such time is reasonable and
appropriate.
CONCLUSION
I find that Petitioner was properly excluded pursuant to section
1128(b)(14) of the Act until such time as Petitioner repays his
HEAL debt or such time as Petitioner has resolved his HEAL debt
to PHS's satisfaction.
Edward D. Steinman
Administrative Law Judge
* * * Footnotes * * *
1. By letter dated October 27, 1995, Petitioner was
notified by the I.G. that he was being excluded from
participation in the Medicare and State health care programs, as
defined in section 1128(h) of the Social Security Act ("the
Act"). He was further advised that his exclusion was based on
sections 1128(b)(14) and 1892 of the Act. His exclusion was to
remain in effect until his debt had been satisfied completely.
2. The parties submitted briefs and exhibits in
accordance with the instructions contained in my April 29, 1996
Order. I admit all of the parties' exhibits into evidence (I.G.
Exs. 1 - 37 and P. Exs. 1 - 11).
3. My April 29, 1996 prehearing order included among
the issues whether Petitioner timely filed his request for
hearing. The notice letter was dated October 27, 1995, and
Petitioner's letter requesting a hearing was mailed December 30,
1995. If Petitioner had received the notice prior to November 1,
his request for hearing would have been filed untimely. However,
the regulations provide that the request for hearing must be
filed, that is mailed, within 60 days from receipt of the notice.
42 C.F.R. § 1005.2(c). Since receipt is presumed to be five
days after the notice is mailed, the presumption is that
Petitioner did not receive the notice until November 1, thus
making his request for hearing timely. The I.G. has chosen not
to argue that Petitioner's request for hearing was not timely
filed. Accordingly, there is no timeliness issue in this case.
4. Petitioner's specific argument is that the
Department of Justice, acting through the United States Attorney
for Hawaii, was the agent whose actions bound HHS. For purposes
of Petitioner's argument and throughout this Decision, the terms
United States Attorney for Hawaii, Department of Justice, and
United States (U.S.) Attorney all stand for the same entity.