SUBJECT:

Ronald J. Crisp, M.D.,

Petitioner,

The Inspector General

I. Background

By letter dated June 4, 1992, the Inspector General (I.G.) notified Petitioner that he was being excluded from participation in the Medicare program and any State health care program. I.G. Ex. 1. The I.G.'s notice letter stated that these actions were taken because Petitioner's license to practice medicine in the Commonwealth of Pennsylvania was suspended by the Pennsylvania State Board of Medicine, and would become effective 20 days from the date of the notice letter. Petitioner did not request a hearing to challenge the exclusion until June 29, 2000, approximately eight years later. In his request for a hearing, Petitioner averred that he did not receive a copy of the I.G.'s notice of exclusion in 1992. Petitioner claimed that he first found out about the exclusion in May, 2000 when he received an "Adverse Action Report" from the National Practitioner Data Bank (NPDB) which indicated that he had been excluded from Medicare and State health programs, effective June 24, 1992. P. Ex. 2.

The I.G. moved to dismiss Petitioner's hearing request on the grounds that Petitioner's hearing request was untimely. Petitioner opposed the motion. The I.G. submitted four exhibits (I.G. Exs. 1 - 4) to support her motion to dismiss Petitioner's request for hearing. Petitioner submitted three exhibits (P. Exs. 1 - 3) in support of his opposition to the I.G.'s motion. I admit I.G. Exs. 1 - 4 and P. Exs. 1 - 3 into evidence.

II. Issue, findings of fact and conclusions of law

A. Issue

The issue in this case is whether Petitioner's request for hearing is timely filed.

B. Findings of fact and conclusions of law

I make the following findings of fact and conclusions of law. I discuss my findings in detail, below.

1. Petitioner would have been entitled to a hearing if he had made a request for hearing within 60 days of his receipt of the I.G.'s notice of exclusion. 42 C.F.R. § 1005.2(c).

2. An excluded individual is presumed to have received a notice of exclusion that is delivered to the excluded individual's address within five days from the date of the notice of exclusion unless he can make a reasonable showing to the contrary. Id.

3. Petitioner is presumed to have received the I.G.'s notice of exclusion on June 9, 1992.

4. Petitioner has not made a reasonable showing to rebut the presumption that he received the notice of exclusion five days from the date of the notice of exclusion.

5. Petitioner did not make a request for hearing within 60 days of his receipt of the I.G.'s notice of exclusion and, therefore, is not entitled to a hearing in this case. Id.

III. Discussion

A. Petitioner would have been entitled to a hearing if he had made a request for hearing within 60 days of his receipt of the I.G.'s notice of exclusion. (Finding 1).

The I.G. excluded Petitioner pursuant to section 1128(b)(4) of the Social Security Act (Act). An individual who is excluded under any of the subsections of section 1128 of the Act has a right to reasonable notice, an opportunity for an administrative hearing to challenge the I.G.'s authority to impose the exclusion and to challenge the reasonableness of the length of the exclusion. Act, section 1128(f); see Act, section 205(b). However, the right to a hearing is conditioned on the excluded individual making a timely request for a hearing after receiving notice of the I.G.'s exclusion determination. An excluded individual or entity who fails to timely request a hearing loses the right to a hearing. The request for a hearing must be filed within 60 days after the I.G.'s exclusion notice is received by the excluded individual. 42 C.F.R. § 1005.2(c). The date of receipt of the notice letter will be presumed to be five days after the date of the notice letter unless there is a reasonable showing to the contrary. Id.

B. An excluded individual is presumed to have received a notice of exclusion that is delivered to that individual's address. (Finding 2).

The Act imposes on the I.G. the duty to provide an excluded individual with "reasonable notice" of that person's exclusion. Act, section 1128(f). The duty to provide an individual with reasonable notice of an exclusion is not a duty to serve that individual personally with the notice of exclusion. It is a duty to take reasonable steps to assure that the notice is delivered to the excluded individual. That duty is discharged by sending the notice in the United States Mail to the excluded individual's mailing address. Sunil R. Lahiri, M.D., DAB CR296, at 16 (1993); Charles K. Angelo, Jr., M.D., DAB CR290, at 13 (1993); see Louis W. DeInnocentes, Jr., M.D., DAB CR247, at 36 - 40 (1992).

In opting to require the I.G. to provide an excluded individual with reasonable notice of his or her exclusion, Congress made a policy decision that it would be inappropriate to impose on the I.G. the more demanding burden of obtaining personal service on the excluded individual. The overriding purpose of the exclusion law is to protect federally funded health care programs and their beneficiaries and recipients from untrustworthy individuals. It might frustrate the purpose of the law to impose a personal service requirement on the I.G., because in some cases, clever or lucky individuals could avoid an exclusion by evading personal service, or by being unavailable to be served. Lahiri, CR296 at 17; DeInnocentes, CR247, at 38 - 39; Julio M. Soto, M.D., DAB CR418, at 3 (1996).

Delivery of a notice of exclusion to an excluded individual's address is all but conclusive evidence that the individual received the notice. Soto, CR418 at 4. Conceivably, there might be a circumstance where an excluded individual proves that he or she did not receive a notice, despite it having been delivered to his or her address. For example, an excluded individual might rebut the presumption of receipt despite it having been delivered to his or her address. Mira Tomasevic, M.D., CR17 (1989). In Tomasevic, the petitioner satisfactorily rebutted the presumption of receipt by showing that she did not reside at the address where the notice was mailed and in fact was no longer living in the United States. The burden to rebut the heavy presumption of receipt rests on the excluded individual. Soto, CR418 at 4.

A simple denial by an excluded individual that he or she received a notice, in the face of proof that the notice was delivered to that individual's address, will not suffice to overcome the presumption of receipt that flows from proof of delivery of a notice. If the presumption could be overcome merely by the excluded individual denying receipt of the notice, then the presumption of receipt would be meaningless. In most circumstances where an excluded individual denies receipt of an exclusion notice despite proof of delivery of the notice to that individual's address, the I.G. would be unable to adduce evidence that would rebut the denial of receipt.

C. Petitioner's receipt of the I.G.'s exclusion notice, his failure to timely request a hearing, and his failure to make a reasonable showing to rebut the presumption of receipt. (Findings 3, 4, 5).

The I.G.'s exclusion notice is dated June 4, 1992. I find that Petitioner received the I.G.'s exclusion notice on June 9, 1992. I base my conclusion on: (1) the presumption of receipt that results from 42 C.F.R. § 1005.2(c) which states that the date of receipt of the notice letter will be presumed to be five days after the date of the notice letter unless there is a reasonable showing to the contrary, and (2) Petitioner's failure to make a reasonable showing to overcome the presumption of receipt.

Petitioner had 60 days from June 9, 1992 to request a hearing in this case. He failed to exercise his right to request a hearing within the 60-day period. The I.G. sent the notice of exclusion to Petitioner on June 4, 1992. The I.G. sent the notice to Petitioner's address. The notice was sent via first class mail in accordance with 42 C.F.R. § 1001.2002, which requires a written notice. The notice letter apprised Petitioner of his appeal rights with respect to the exclusion and specifically states that a request for hearing before an administrative law judge "must be made in writing within 60 days of [your] receipt of this letter." I.G. Ex. 1. Under the regulations, Petitioner had until August 7, 1992 to file a written hearing request. However, Petitioner's hearing request is dated June 29, 2000, nearly eight years late. Therefore, Petitioner's hearing request is untimely.

The address on the notice was 8288 Waterside Court, Frederick, Maryland 21701. Petitioner has not denied that the 8288 Waterside Court address was the address at which he received mail in 1992. Indeed, in Petitioner's affidavit, he admits that he has resided at the 8288 Waterside Court address since 1992. P. Ex. 1. The 8288 Waterside Court address remains Petitioner's correct mailing address. In Petitioner's affidavit, he admits that he is currently residing at the 8288 Waterside Court address and has resided at that address since 1992. P. Ex. 1. Therefore, 8288 Waterside Court was Petitioner's correct mailing address in 1992, is currently his address, and was his address during the years in between.

By affidavit, Petitioner claims he did not receive an April 7, 1992 letter from the I.G. notifying him of the I.G.'s intent to impose the exclusion. P. Ex. 1. Also, by affidavit, Petitioner claims that he did not receive the June 4, 1992 exclusion notice. P. Ex. 1. However, Petitioner admits that both the April 7, 1992 and the June 4, 1992 letters were properly addressed. P. Br., at 5. Petitioner argues that the I.G. has not established a presumption that Petitioner received the exclusion notice because there was no proof of delivery of the notice to Petitioner. Petitioner argues that proof of delivery of the exclusion notice has been established in previous cases by the I.G. supplying a certified mail return receipt as proof of delivery. Soto, CR418; Lahiri, CR296. Petitioner argues that the I.G. has not attached any mail receipt in this case, nor has the I.G. provided affidavits from the individuals who either drafted or mailed the April 7, 1992 and the June 4, 1992 letters. Therefore, Petitioner's position is that neither letter was delivered to the Petitioner and as a result there is no presumption of delivery to rebut.

I find Petitioner's argument to be without merit. The I.G. sent the notice of the exclusion to Petitioner's address by first class mail. I.G. Ex. 1. Petitioner admits that both the April 7, 1992 and the June 4, 1992 letters were properly addressed. P. Br., at 5. The mailing of the notice by first class mail establishes a presumption that Petitioner received the notice on June 9, 1992. It is not necessary that the I.G. prove delivery by a mail receipt. The regulations merely require "written" notice and do not specify the manner in which the notice is to be given to the excluded individual. Congress elected to impose a duty on the I.G. to provide "reasonable notice" to affected parties. Congress' paramount purpose was to protect program beneficiaries and recipients from practitioners who are untrustworthy. The rights of excluded individuals to be apprised of their exclusions by the I.G. have not been ignored by Congress. But, in setting the balance between protecting the welfare of beneficiaries and recipients and protecting the interests of affected practitioners, Congress opted to establish a notice standard with which the I.G. could easily comply. First class mail has been determined to be an acceptable way to provide reasonable notice. Lahiri, CR296; DeInnocentes, CR247; Angelo, CR290. Excluded individuals have been protected by allowing them to make a reasonable showing to rebut the presumption of receipt. 42 C.F.R. § 1005.2(c). The denial by Petitioner, without elaboration or explanation, that he did not receive the notice until years after its delivery is insufficient to overcome this presumption. Petitioner has not offered any evidence to overcome this presumption. To allow excluded individuals to rebut the presumption of receipt by such a self-serving statement would be to contrary to Congress' intent. When a notice letter is sent by first class mail and in accordance with 42 C.F.R. § 1001.2002, Petitioner is deemed to have received notice five days from the date of the notice letter unless there is a reasonable showing to the contrary. 42 C.F.R. § 1005.2(c); Arthur H. Halprin, M.D., DAB CR671 (2000).

Moreover, Petitioner's denial that he received the notice is not credible. He claimed, in his affidavit, that he received neither the April 7, 1992 letter nor the June 4, 1992 letter when both had been sent to the correct address. In essence, what he is claiming is that neither letter was mailed or that the post office failed to deliver two properly addressed letters that happened to concern the same matter and that were mailed approximately two months apart. Without more explanation, I find these claims not credible and merely self-serving.

I also find unpersuasive Petitioner's argument concerning the I.G.'s failure to provide affidavits from anyone involved in the drafting or the mailing of these two notices. The drafting and mailing of these notices happened more than eight years ago. It would be unreasonable to expect the I.G. to be able to find anyone with a recollection of the drafting or the mailing of these notices. The signature at the bottom of the exclusion letter speaks for itself. Nothing more could be attested to in an affidavit after eight years.

IV. Conclusion

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

Marion T. Silva

Chief Administrative Law Judge