SUBJECT:

Matrix Biokinetics, Inc.,

Petitioner,

The Inspector General

DECISION

This case is before me on Petitioner's request for a hearing challenging its exclusion from participation as a provider in the Medicare and Medicaid programs. I am dismissing the request because it was not timely filed and I do not have good cause to allow a late filing.

I. Background

By letter dated September 29, 2000, the Inspector General (I.G.) notified Petitioner of its exclusion from participation in the Medicare, Medicaid, and all federal health care programs (as defined in section 1128B(f) of the Social Security Act (Act)) for a minimum period of 10 years. The I.G. explained that Petitioner's exclusion was authorized under section 1128(a)(1) of the Act because of Petitioner's "conviction as defined in section 1128(i) (42 U.S.C. § 1320a-7(i)), in the United States District Court, District of Nevada, of a criminal offense related to the delivery of an item or service under the Medicare program."

By letter dated January 30, 2001, Petitioner requested a hearing and the case was assigned to me for decision. On July 9, 2001, I conducted a prehearing telephone conference at which time the parties agreed that the case could be decided based on their written submissions and that an in-person hearing was not necessary. The parties have each submitted written arguments and proposed exhibits.

The I.G. submitted a brief (i.G. Br.), a reply brief (I.G. Reply), and seven proposed exhibits (I.G. Exs. 1-7). Petitioner submitted a response brief (P. Resp.), and 23 proposed exhibits (P. Exs. A-W). Neither party objected to the proposed exhibits. Therefore, in the absence of objections, I am admitting I.G. Exs. 1-7, and P. Exs. A-W. I base my decision in this case on these exhibits, the applicable law, and the arguments of the parties. I have concluded that the I.G. has shown that Petitioner filed its notice of appeal late and has further shown that Petitioner has not demonstrated good cause for its untimely filing. I accordingly enter summary disposition in favor of the I.G. and I dismiss Petitioner's appeal.

II. Applicable law

Under section 1128(a)(1) of the Act, the Secretary may exclude from participation in the Medicare and Medicaid programs any individual or entity that has been convicted of a criminal offense related to the delivery of an item or service under Title XVIII or under any State health care program. Section 1128(c)(3)(B) of the Act provides that an exclusion imposed under section 1128(a)(1) of the Act shall be for a period of five years, unless specific aggravating or mitigating factors are present which form the basis for lengthening or shortening the period of exclusion. See also 42 C.F.R. § 1001.102.

Section 205(b) of the Act, 42 U.S.C. § 405(b), provides that a person entitled to an administrative hearing by virtue of an adverse decision shall be given reasonable notice and opportunity to be heard. The statute specified that in order to be entitled to a hearing, a party requesting a hearing must file the request within 60 days from the date the exclusion notice is received. 42 C.F.R. § 1001.2007(b) mirrors section 205(b) of the Act by providing that "[t]he excluded individual or entity has 60 days from the receipt of notice of exclusion provided for in § 1001.2002 to file a request for such a hearing." Under federal regulations, a petitioner is presumed to have received an exclusion notice five days after it was sent, absent a showing to the contrary. See 42 C.F.R. § 1005.2(c). Furthermore, the applicable regulations do not permit extensions of time beyond the 60-day period nor do they provide a "good cause" exception to that deadline. 42 C.F.R. §§ 1001.2007, 1005.2(c).

An ALJ's authority to dismiss a hearing request is prescribed at 42 C.F.R. § 1005.2(e)(1) which states:

The ALJ will dismiss a hearing request where - The petitioner's or the respondent's hearing request is not filed in a timely manner.

III. Issue

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

IV. Findings of fact and conclusions of law

1. In a letter dated September 29, 2000, the I.G. notified Petitioner that it was being excluded from participation in Medicare and State health care programs and that if Petitioner wanted a hearing regarding its exclusion, it must file a request within 60 days of the receipt of the I.G.'s notice. I.G. Ex. 1.

2. By letter dated January 30, 2001, Petitioner filed its request for hearing. I.G. Ex. 2.

3. Section 1128(f) of the Act provides for reasonable notice and opportunity for a hearing to the same extent as provided in section 205(b) of the Act. Section 205(b) provides that an adversely affected party may, within 60 days from the receipt of the notice (of exclusion), file a request for a hearing.

4. The relevant federal regulation at 42 C.F.R. § 1001.2007(b) provides that an affected party or his legal representative must file a request for a hearing in writing within 60 days from receipt of the notice of determination.

5. At no time did Petitioner request an extension of time for filing his request for a hearing.

6. A period of 123 days elapsed between the dates of the I.G.'s exclusion notice and Petitioner's request for hearing.

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

V. Discussion

The I.G. has moved for summary affirmance of Petitioner's request for a hearing. The I.G. contends that Petitioner's request was filed out of time, and that there "are no grounds to extend the time for Petitioner to file a hearing request" under the governing regulations. I.G. Br., at 5-6. In the alternative, the I.G. also asserts that Petitioner was properly excluded from Medicare participation pursuant to section 1128(a)(1) of the Act. Id., at 6-10. The I.G.'s argument, as to Petitioner's untimely filing of its hearing request, is corroborated by the documents submitted by the I.G. in connection with her motion for summary affirmance. The I.G.'s notice of exclusion is dated September 29, 2000. I.G. Ex. 1. Petitioner's letter acknowledging receipt of the notice of exclusion and requesting a hearing is dated January 30, 2001, indicating a lapse of 123 days between the issuance of the exclusion notice and Petitioner's request for hearing. I.G. Ex. 2. Lastly, the I.G.'s notice of exclusion specifically advises that Petitioner may make a request for hearing "in writing within 60 days of your receiving the OIG's letter of exclusion, . . ." I.G. Ex. 1, at 2. Based upon the evidence, the obvious conclusion is that Petitioner's request for hearing was filed well outside of the 60-day deadline imposed by section 205(b) of the Act and 42 C.F.R. § 1001.2007(b), and therefore Petitioner is not entitled to a hearing.

Surprisingly, Petitioner totally ignored the I.G.'s assertion of untimely filing and, instead, focused its efforts on attempting to collaterally attack the underlying conviction. P. Resp. Specifically, Petitioner contends that it did not commit any fraud and that any such offense was an administrative offense and not criminal. P. Resp., at 7-10. In essence, Petitioner is attempting to attack its criminal conviction.

It is well-settled that Petitioner may not use these proceedings to collaterally attack its conviction. The facts for which Petitioner entered into a plea agreement must be accepted as true for the purposes of determining reasonableness of the length of exclusion since the applicable regulations preclude a collateral attack on the underlying conviction. See 42 C.F.R. § 1001.2007(d). Furthermore, the Departmental Appeals Board (DAB) has previously held that collateral attacks are ineffectual arguments in the context of an exclusion proceeding because the I.G. and the ALJ are not permitted to look beyond the fact of the conviction. See Conrad J. Sarnecki, Jr., D.O., DAB CR722 (2000); Paul R. Scollo, D.P.M., DAB No. 1498 (1994); Peter J. Edmondson, DAB No. 1330 (1992).

But in any event, I need not entertain Petitioner's assertion as to the defects of the conviction. First and foremost, I do not have the authority to make any determination relating to Petitioner's conviction. But more importantly, the applicable regulations do not provide any exceptions to the 60-day filing rule. The regulations leave me no discretion; I must dismiss a hearing request where such request is not filed in a timely manner. See Sharon R. Anderson, D.P.M., DAB CR793 (2001); Susan Melinda Brase, R.N., a/k/a, Susan Melinda Gaut, R.N., a/k/a, Susan Melinda Gaut Brase, R.N., DAB CR607 (1999).

VI. Conclusion

I find that Petitioner was provided with proper notice of its exclusion on September 29, 2000, and that it was specifically informed that it had 60 days to file a request for hearing. Petitioner's request for hearing, filed 123 days after the I.G.'s issuance of the exclusion notice, was untimely. Therefore, I must dismiss the hearing request for untimeliness, as required by the regulations.

Marion T. Silva

Chief Administrative Law Judge