SUBJECT:

Susan Melinda Brase, R.N., aka

Susan Melinda Gaut, R.N., aka

Susan Melinda Gaut Brase, R.N.,

Petitioner,

The Inspector General

FINAL DECISION ON REVIEW OF

ADMINISTRATIVE LAW JUDGE DECISION

By letter dated October 30, 1998 (Notice), the Inspector General (I.G.), United States Department of Health and Human Services, notified Susan Melinda Brase, R.N. (aka Susan Melinda Gaut, R.N., aka Susan Melinda Gaut Brase, R.N.), 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). The I.G. explained that the exclusion was required pursuant to section 1128(b)(4) of the Act because Petitioner's nursing license in the State of California was revoked, suspended, or otherwise lost, or was surrendered while a formal disciplinary proceeding was pending before the State licensing authority for reasons bearing on Petitioner's professional competence, professional performance, or financial integrity. The I.G. further explained that the exclusion was effective 20 days from the date of the Notice and that it would remain in effect as long as Petitioner's license was revoked, suspended, or otherwise lost. The I.G. advised Petitioner that once her license was returned to active status by the licensing board or agency taking the disciplinary action in the State of California, Petitioner would be eligible to apply to the I.G. for reinstatement to the Medicare, Medicaid and federal health care programs.

The I.G. also informed Petitioner in the Notice that she could contest her exclusion by filing a request for a hearing before an administrative law judge (ALJ), and that the request had to be made in writing, within 60 days from Petitioner's receipt of the Notice. The Notice further informed Petitioner that her request for hearing was to be sent to Chief, Civil Remedies Division, Departmental Appeals Board, Room 637D, Hubert H. Humphrey Building, 200 Independence Avenue, S.W., Washington, D.C. 20201.

By letter dated March 2, 1999, Petitioner requested a hearing before an ALJ. Petitioner challenged her exclusion, and, alternatively, requested that the length of the exclusion be shortened.

On May 3, 1999, the I.G. submitted a motion to dismiss the case for lack of a timely filed hearing request. On May 24, 1999, Petitioner submitted a response and a declaration in which she concedes that her hearing request was not timely filed. She asserts that the ALJ, pursuant to 42 C.F.R. § 498.40(c)(2), may extend the time for filing a hearing request for good cause. Petitioner explains that she delayed the filing because she was severely depressed due to her loss of employment. She further asserted that she contacted an employee of a United States government agency to inquire about her exclusion and was told that her exclusion did not affect her employment but was limited to her own eligibility to receive Medicare and Medicaid benefits. Based on such assurance, she states that she saw no need to challenge the exclusion. She states that she subsequently became aware, based on correspondence dated February 26, 1999, from the United State Office of Personnel Management, that, due to her exclusion by the I.G., she was precluded from the employment she had obtained after the loss of her license. She states that at that point she submitted her hearing request to the Departmental Appeals Board. On such facts, she maintains that she has shown good cause for acceptance of her untimely hearing request.

Counsel for the I.G. contends that there is no provision for acceptance of a late hearing request pursuant to a showing of good cause and maintains that Petitioner's hearing request must be dismissed because it is untimely.

1. Petitioner's request for a hearing was filed untimely.

2. I must dismiss Petitioner's request for a hearing. 42 C.F.R. § 1005.2(e)(1).

DISCUSSION

Federal regulations explicitly state that a request for a hearing must be filed within 60 days after a petitioner receives the I.G.'s Notice. 42 C.F.R. § 1005.2(c). The 60 day time period does not begin to run until the excluded individual has received the requisite Notice. Under federal regulations, the petitioner is presumed to have received the Notice five days after it was sent, absent a reasonable showing to the contrary. 42 C.F.R. § 1005.2(c). The applicable regulation contains no exceptions to the 60-day filing deadline -- for "good cause" or otherwise. 42 C.F.R. § 1005.2. An ALJ will dismiss a hearing request when a petitioner does not file her hearing request in a timely manner. 42 C.F.R. § 1005.2(e)(1) (emphasis added).

In the present case, Petitioner admits that she received the Notice and that she did not timely file a hearing request. The record supports these concessions. Taking into account the presumed period for receipt of the Notice, i.e., five days, Petitioner is deemed to have received the Notice on November 5, 1998. Petitioner was, therefore, required to submit her hearing request by January 4, 1999. Her hearing request, however, was dated March 2, 1999, and received almost two months after the deadline. Clearly, Petitioner's request for a hearing was untimely.

Petitioner cites 42 C.F.R. § 498.40 and asserts that the 60-day filing deadline can be extended by the ALJ for good cause. She has asserted that she has demonstrated good cause on account of her illness and her allegations that she was misled by a government employee concerning the implications of her exclusion. I find that Petitioner's arguments are misplaced. 42 C.F.R. § 498.40, by its terms, concerns procedures for requesting a hearing for certain initial determinations as specified in 42 C.F.R. § 498.5.⁽¹⁾ The determination in Petitioner's case, involving her exclusion under section 1128(b)(4) of the Act, is not included in the list cited under 42 C.F.R. § 498.5. 42 C.F.R. § 498.40 is, therefore, not relevant to Petitioner's case. Rather, I find that 42 C.F.R. § 1005.2 is the applicable regulation. Such regulation does not contain a "good cause" exception to the 60-day time limit. Indeed, under 42 C.F.R. § 1005.2(e)(1), an ALJ is required to dismiss, without exception, a hearing request that has not been timely filed. As the record is clear that Petitioner's hearing request was not timely filed, such request must be dismissed.

The record shows, and Petitioner has admitted, that her request for a hearing was not filed on time.

I conclude that Petitioner's hearing request must be dismissed on the basis that she failed to file her request for a hearing within 60 days of her receipt of the I.G.'s Notice, as required by the regulations governing this proceeding.

Joseph K. Riotto

Administrative Law Judge

1. Petitioner's exclusion does not fit within 42 C.F.R. § 498.5(c)(2), as it is not an exclusion related to fraud or abuseor a conviction for a crime related to participation in the program, in accordance with 42 C.F.R. § 1001, subpart B.