SUBJECT:

John F. Pitts, R.Ph.,

Petitioner,

The Inspector General

DECISION

John Pitts, R. Ph., (Petitioner) filed a request for hearing to appeal the decision of the Inspector General (I.G.) excluding him from participation in the Medicare, Medicaid and all federal health care programs for a period of five years under sections 1128(a)(1)and 1128(a)(3) of the Social Security Act (Act). The I.G. has moved to dismiss Petitioner's request for hearing as untimely. For the reasons set forth below, I find that Petitioner's hearing request was untimely filed. Therefore, I grant the I.G.'s motion and dismiss Petitioner's hearing request.

In a letter dated September 30, 1999, the I.G. advised Petitioner of his exclusion from the Medicare, Medicaid, and all federal health care programs because of his conviction of a criminal offense related to the delivery of an item or service under the Medicaid program. The letter indicates:

A detailed explanation of the authority for this exclusion, its effect, and your appeal rights is enclosed and is incorporated as part of this notice by specific reference. You should read this document carefully, act upon it as necessary, and retain it for future reference.

I.G. Ex 1. Petitioner admits that he received this letter, along with a notice advising that the request for hearing before an administrative law judge (ALJ) "must be made in writing within [sixty] days of [his] receiving the OIG's letter of exclusion." Petitioner's Answer, ¶¶ 2, 9, 10.

More than a year and nine months later, on July 8, 2001, Petitioner sent a letter to the Civil Remedies Division asking what procedures he could follow to make his preclusion retroactive to April 1998, the last time he worked either as a pharmacist or in the health care industry. I.G. Ex. 2. This letter has been treated as a request for hearing.

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

Under the regulations governing the appeal procedures, Petitioner is presumed to have received the exclusion notice "5 days after the date of such notice unless there is a reasonable showing to the contrary." 42 C.F.R. § 1005.2(e)(1). Although Petitioner has not admitted receipt within 5 days of September 30, 1999, he has made no "reasonable showing to the contrary." I therefore accept the regulatory presumption and find that Petitioner received the notice by October 5, 1999.

To be entitled to a hearing, Petitioner must file a written hearing request "within 60 days after the notice . . . is received." 42 C.F.R. § 1005.2(c). The ALJ will dismiss a hearing request that is not filed in a timely manner. 42 C.F.R. § 1005.2(e). The regulations do not provide exceptions to this mandate that I dismiss an untimely request, not even upon a showing of good cause. 42 C.F.R. §§ 1001.2007 and 1005.2(c). Petitioner's hearing request must therefore be dismissed. Moreover, even if the regulations allowed for a good cause exception, Petitioner's claim, that he received bad advice from his attorney, would not constitute good cause.

I find that Petitioner was provided proper notice of his exclusion, on September 30, 1999 (and received such notice by October 5, 1999), and that he was specifically informed that he had 60 days in which to file a request for hearing. Petitioner did not file a request for hearing within that period. Petitioner's request for hearing, filed on July 8, 2001, is untimely. Petitioner's request for a hearing is therefore dismissed.

Carolyn Cozad Hughes

Administrative Law Judge