SUBJECT:

Hatuey M. Vega, M.D.,

Petitioner,

The Inspector General

DECISION

I conclude that Hatuey M. Vega, M.D., (Petitioner), did not file his request for hearing in a timely manner. Accordingly, I dismiss Petitioner's request for a hearing.

I. Background

By letter dated January 31, 2000 (Notice Letter), the Inspector General (I.G.) notified Petitioner that he 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 Notice letter informed Petitioner that his exclusion was imposed pursuant to section 1128(b)(5) of the Act, "because [he was] excluded, suspended or otherwise sanctioned by the [Illinois State health care program] for reasons bearing on [his] professional competence, professional performance, or financial integrity." P. Ex. 1.⁽¹⁾ The Notice letter further stated that the exclusion is to "remain in effect until [he has] been reinstated to the [Illinois State health care program] which originally took the action against [him]." P. Ex. 1.

By letter dated July 28, 2000, Petitioner requested a hearing regarding his exclusion.

The case was assigned to me for hearing and decision. On March 20, 2001, I conducted a telephone conference with the parties. The parties agreed that this case could be decided based on a written record. The parties had previously submitted their briefs on the issue of timeliness of Petitioner's request for hearing.

II. Issue

The issue in this case is whether Petitioner filed his request for hearing in a timely manner.

III. Findings of Fact and Conclusions of Law

1. It is not disputed that the I.G.'s Notice Letter was sent to Petitioner on January 31, 2000, in accordance with 42 C.F.R. § 1001.2002. P. Ex. 1.

2. The I.G.'s notice letter is presumed to be received five days after the date of the Notice Letter, absent a reasonable showing to the contrary. 42 C.F.R. § 1005.2(c).

3. Petitioner has not denied receiving the Notice Letter.

4. In the absence of any showing to the contrary, I presume that the Notice Letter was received by Petitioner within five days, that is, on or before February 5, 2000.

5. Pursuant to the 60-day filing requirement, Petitioner had until on or about April 6, 2000, to file a written request for a hearing.

6. Petitioner filed a request for hearing pursuant to 42 C.F.R. § 1001.2007 on July 28, 2000.

7. Petitioner's request for hearing, being filed more than 170 days after presumed receipt of the Notice Letter, is untimely.

8. The regulations mandate that an administrative law judge will dismiss a request for hearing when a petitioner does not file his or her request for hearing in a timely manner. 42 C.F.R. § 1005.2(e)(1).

9. No exceptions to the 60-day filing deadline for "good cause" or otherwise are set forth in the applicable regulations. 42 C.F.R. § 1005.2.

10. Petitioner did not file a request for hearing within 60 days of the date of the Notice Letter as required by 42 C.F.R. § 1005.2(c). Petitioner is therefore not entitled to a hearing in this case.

11. Because Petitioner failed to file his request for hearing in a timely manner, I dismiss Petitioner's request for a hearing. 42 C.F.R. § 1005.2(e)(1).

IV. Discussion

By letter dated January 31, 2000, the I.G. notified Petitioner that he was being excluded from participation in Medicare, Medicaid, and all federal health care programs, as defined in section 1128B(f) of the Act. The Notice Letter stated that the exclusion is to remain "in effect until [Petitioner has] been reinstated to the [Illinois State health care program]." Petitioner was informed that the exclusion was imposed pursuant to section 1128(b)(5) of the Act, "because [he was] excluded, suspended or otherwise sanctioned by the [Illinois State health care program] for reasons bearing on [his] professional competence, professional performance, or financial integrity."

In the absence of any showing to the contrary, I may presume that the Notice Letter was received by Petitioner within five days after its date of January 31, 2000. 42 C.F.R. § 1005.2(c). Petitioner does not deny that he received the Notice Letter within five days of its being mailed by the I.G.

The Notice Letter stated that, if Petitioner wished to request a hearing, his appeal rights [were] enclosed. 42 C.F.R. § 1001.2002. The I.G. letter has a notation that there was an "Enclosure." Pursuant to the 60-day filing requirement, Petitioner had until on or about April 6, 2000 to file a written request for a hearing. 42 C.F.R. § 1005.2(c).

By letter dated July 28, 2000, Petitioner requested a hearing and referenced the Notice Letter of January 31, 2000. P. Br. at ¶ 1.

In his brief, Petitioner does not address the I.G.'s arguments regarding the untimeliness of his request for hearing. Petitioner does not dispute the I.G's authority to impose penalties under the Act, but rather urges on equitable grounds that because he has a meritorious defense and due to his age and lack of legal training, he should be allowed a hearing on the merits of the case. P. Br ¶¶ 3, 4, and 6. ⁽²⁾

The regulations mandate that an "[Administrative law judge] will dismiss a request for hearing where - (1) The Petitioner's . . . hearing request is not filed in a timely manner[.]" 42 C.F.R.§ 1005.2(e)(1). The regulations make no exceptions to the

60-day filing deadline for "good cause" or otherwise. 42 C.F.R. § 1005.2.

Petitioner did not file his request for hearing until July 28, 2000, which is approximately 170 days after the Notice Letter was sent to him. It is evident that Petitioner did not file a request for hearing within 60 days of his presumed receipt of the Notice Letter as required by 42 C.F.R. § 1005.2(c). Petitioner is therefore not entitled to a hearing in this case.

V. Conclusion

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

Accordingly, I DISMISS Petitioner's request for a hearing.

Joseph K. Riotto

Administrative Law Judge

1. The I.G. and the Petitioner submitted briefs on the issue of timeliness which I refer to as I.G. Br. and P. Br., respectively. Neither party submitted any exhibits with their briefs. I take notice that on July 28, 2000, Petitioner attached the following documents to his request for hearing letter: (a) a copy of the January 31, 2000 Notice Letter, and (b) a ten-page settlement agreement which he signed on/or about April 30, 1999. I will refer to the copy of the Notice Letter as P. Ex. 1 and the settlement agreement as P. Ex. 2. The I.G. did not object to my considering these documents. I admit P. Ex. 1 and P. Ex. 2.

2. Because I am dismissing this case on the basis that Petitioner filed his request for a hearing untimely, I am not considering the merits of the case. I note also that Petitioner's request for waiver of timeliness of filing on equitable grounds is outside the scope of my authority.