SUBJECT:

Social Security Administration,

Anait Vardanyan,

Respondent.

DECISION

I grant the motion of the Social Security Administration's Office of Inspector General (SSA-OIG) to dismiss Anait Vardanyan's (Respondent) hearing request. I find that the Respondent has no right to a hearing because the hearing request was untimely filed, and Respondent has not shown good cause for her failure to file a timely hearing request.

I. BACKGROUND

By notice letter dated July 17, 2000 (July 2000 notice letter), Respondent was informed by SSA-OIG that it was proposing to impose a civil monetary penalty (CMP) of $5,000.00 against her. SSA-OIG determined that Respondent made a statement that she knew or should have known was false, and that the statement was made to receive payment of Supplemental Security Income (SSI) benefits that Respondent was not legally entitled.⁽¹⁾ In addition to the proposed CMP, the SSA-OIG's July 2000 notice letter notified Respondent that aggravating circumstances existed in Respondent's case.⁽²⁾ Further, the July 2000 notice letter informed Respondent of her right to request a hearing within 60 days, and a copy of the procedures for requesting a hearing, 20 Code of Federal Regulations (C.F.R.) Part 498, was included with the letter. Finally, the SSA-OIG stated in the July 2000 notice letter, in relevant part:

If you do not request a hearing within the 60-day period, the proposed [CMP] will be imposed upon you. You will have no right to [an] administrative appeal after that time.

By letter dated November 3, 2000, SSA-OIG informed Respondent that the proposed $5,000.00 CMP was being imposed because she had failed to file a hearing request.

By submission dated January 4, 2001, Respondent⁽³⁾ filed a document to the Departmental Appeals Board (DAB) stating, in relevant part:

This is another request for a hearing filed . . . on or before September 15, 2000 and received . . . on that date according to exhibit "A".⁽⁴⁾ The request for a hearing was in response to a letter from the Office of the IG of SSA dated July 17, 2000

. . . .

The case was docketed on January 19, 2001 and assigned to me for hearing. By submission dated January 29, 2001, SSA-OIG filed a Motion to Dismiss, with four exhibits (SSA Exs. 1-4). By submission dated February 10, 2001, Respondent submitted a Response In Opposition To Motion to Dismiss, with four exhibits (Res. Exs. A-D). Since neither party opposed the admission of the other's exhibits, I am admitting SSA-OIG Exs. 1-4 and Res. Exs. A-D into evidence.

II. ISSUES

A. Whether Respondent filed a timely request for hearing; and

B. Whether Respondent has shown good cause for extending the time period in which to file a hearing request.

III. FINDINGS OF FACT AND CONCLUSIONS OF LAW

Based on my review of the applicable law and the record before me, I make the following findings of fact and conclusions of law (Findings):

1. SSA-OIG's July 2000 notice letter notified Respondent that SSA proposed to impose a CMP against her. SSA-OIG Ex. 1.

2. SSA-OIG's July 2000 notice letter informed Respondent that she had 60 days in which to file a request for hearing and provided Respondent with the procedures necessary to file such a request. Id.

3. SSA-OIG's July 2000 notice letter informed Respondent that after the 60-day appeal period she would have no further right to a hearing. Id.

4. SSA-OIG's July 2000 notice letter enclosed a copy of 20 C.F.R. Part 498 for Respondent. Id.

5. Respondent filed a submission that was received at the Department of Health and Human Services (HHS) central mailroom on September 15, 2000 (Respondent's September 15, 2000 submission). Res. Exs. A, B, and C.

6. Respondent's September 15, 2000 submission was not an adequate hearing request in that it did not comply with the requirements of 20 C.F.R. § 498.202(d).

7. Respondent has not shown good cause for extending the time period for filing a hearing request.

IV. APPLICABLE LAW AND REGULATIONS

The hearing rights of a person in any case involving SSA are established by federal regulations. The regulations applicable to this case are found at 20 C.F.R. Part 498. Section 498.109 of 20 C.F.R. provides that if the OIG seeks to impose a penalty and assessment, the OIG must serve written notice of its intent to take such action. The notice must, among other things, include a description of the false statement, the amount of the proposed penalty, any circumstances that were considered when determining the amount of the proposed penalty, and instructions for responding to the notice. With regard to the instructions for responding to the notice, section 498.109(a) provides, in particular, that the instructions will include:

(i) A specific statement of respondent's right to a hearing; and

(ii) A statement that failure to request a hearing within 60 days permits the imposition of the proposed penalty and assessment, as applicable, without right of appeal.

Section 498.202 provides that the request for a hearing must be in writing and contain a statement as to the specific issues or findings of facts and conclusions of law in the notice letter with which the respondent disagrees, and the basis for the respondent's contention. Finally, section 498.202 provides:

(f) The [administrative law judge (ALJ)] shall dismiss a hearing request where:

(1) The respondent's hearing request is not filed in a timely manner and the respondent fails to demonstrate good cause for such failure . . . .

V. DISCUSSION

The facts in this case are undisputed. SSA-OIG's request for dismissal is based on SSA-OIG's July 2000 notice letter, which proposed a CMP, and SSA-OIG's November 3, 2000 letter, which informed Respondent that she had forfeited her right to a hearing and that the proposed CMP was being imposed. Based on my review of the plain language of the relevant regulations, I find that SSA-OIG's determination that Respondent did not filed a timely hearing request is correct. While the facts in this case are undisputed, the submission made by Respondent and received at the HHS mailroom on September 15, 2000 and the effect of that submission are in dispute, and is ultimately one of two factors that are determinative of the issues in this case. The second determinative factor is whether Respondent's January 4, 2001 submission provides any basis for extending the filing time period. Consequently, both factors are discussed below.

As noted above, Respondent, by submission on January 4, 2001, maintained that she had filed a previous appeal with the DAB on or before September 15, 2000, and included as evidence a copy of a certified mail return receipt card, dated September 15, 2000. Res. Ex. C. The signature on the return receipt card is not completely legible but was signed and therefore shows receipt by someone. Since the signature was not that of anyone at the DAB, an investigation was instituted. The results of the investigation indicated that the submission was received by the HHS mailroom and logged in on that date. Consequently, it is reasonable to conclude that the document was delivered to the DAB.

However, I find that Respondent's September 15, 2000 submission was not filed with the DAB. Moreover, I determine that Respondent's January 4, 2001 submission supports this finding. By Respondent's own admission, Respondent's September 15, 2000 "hearing request" consisted of only two documents. The first document is a SSA internal form, which is used to request a hearing by an ALJ in the Office of Hearings and Appeals relative to disability and other Social Security benefit issues. While the form is clearly one used within SSA, a review of the form definitively indicates that the form is not designed to be used outside of SSA and is clearly not intended to request a hearing pursuant to 20 C.F.R. 498.202. Further, Respondent's statement on the form simply states "I disagree with the SSA determination" and does not reference any other information. Finally, Respondent does not include, on the form or by attachment of the July 2000 notice letter, any information that would indicate to the DAB or provide anyone at the DAB with notice that she was attempting to file an appeal with the DAB as required by the applicable regulation.

The second document is an appointment of representative form. Again, this is a SSA form, which allows a claimant to appoint someone to represent him or her and clearly indicates that the representation is before the SSA. Again, nothing on this form would indicate an appeal to the DAB as required by the applicable regulation and stated by SSA-OIG in its July 2000 notice letter. Even taking these two forms together, nothing in these forms would alert the DAB that this was a request for a hearing pursuant to a proposed CMP by the SSA-OIG. Indeed, it does not appear from the record before me that Respondent even included a cover letter with the two forms. Instead, Respondent admits that these two forms were simply filled out, put in an envelope and sent certified mail to the DAB. See Verification and Declaration of Respondent Vardanyan attached to February 10, 2001 submission. Therefore, even if the submission had been received by the DAB with the certified return receipt card attached, it is reasonable to conclude that, with no other information, the forms would have been forwarded to SSA. Hence, I find that Respondent's September 15, 2000 submission was not filed with the DAB.

Finally, I find that Respondent's January 4, 2001 submission does not provide any basis for me to find good cause for Respondent's untimely filing.⁽⁵⁾ The term good cause is not defined in the regulations. However, good cause has been held to mean circumstances beyond an individual's control which prevent that individual from requesting a hearing timely. See Hospicio San Martin, DAB CR387, aff'd DAB No. 1554 (1996). Respondent does not meet this standard. Respondent was clearly and unequivocally informed of and provided a copy of the regulations which specify what a request for hearing must include. Respondent was aware of the regulations as evidenced by the fact that Respondent wrote to opposing counsel on July 24, 2000, and indicated that "... and I intend to file for a hearing pursuant to 20 C.F.R., part 498." SSA-OIG Ex.2. The documents mailed by Respondent on September 15, 2000 do not even approach meeting the requirements of the regulations. The facts of this case clearly establish that it was within Respondent's control to file a hearing request in compliance with the regulations . I reached a similar conclusion in Arthur H. Halprin, M.D., DAB CR 671 (2000). Although that case involved different regulations, the timeliness requirement is similar and the same reasoning is applicable to this case. When a respondent is notified of an adverse action, provided an opportunity to request a hearing, and does not submit such a request within the allowable time period, then the respondent is no longer entitled to a hearing.

VI. CONCLUSION

Accordingly, I grant SSA-OIG's request to dismiss Respondent's hearing request and order this case dismissed.

Alfonso J. Montano

Administrative Law Judge

1. Specifically, SSA discontinued Respondent's SSI benefits because she was out of the United States from December 25, 1997 to February 25, 1998. Rather that waiting until she was again eligible to receive SSI benefits, Respondent filed a Request for Reconsideration to SSA on March 10, 1998, stating that she had not left the United States. The SSA-OIG maintains that an investigation revealed that Respondent had, in fact, been out of the country during the period identified by SSA.

2. SSA-OIG determined that aggravating circumstances existed based on the nature of Respondent's statement, the circumstances under which it occurred, and a finding that Respondent's culpability was substantial.

3. Since Respondent executed a declaration that indicates Kevin M. Aslanian as her representative, references to Respondent include Respondent's representative as well.

4. Attachment A is a copy of a certified mail return receipt card, dated September 15, 2000, which will be discussed further in the text.

5. Even if Respondent had shown good cause for her untimely filing, the question, which I do not reach here, would still remain as to whether Respondent's second request met the regulatory requirements, since all Respondent did was resend the two SSA forms.