SUBJECT:

Andrew J. Goodrow,

Petitioner,

The Inspector General

DECISION

Petitioner failed to file his request for hearing in a timely manner. Accordingly, the request for hearing is dismissed pursuant to 42 C.F.R. § 1005.2(e)(1).

I. Procedural History

On January 20, 1999, the Inspector General (I.G.) sent Petitioner a letter advising him of the I.G.'s intent to exclude him from participation in the Medicare, Medicaid and all other federal health care programs. The basis for the exclusion was Petitioner's recent criminal conviction, and the letter further noted that a five-year minimum period of exclusion was mandatory pursuant to sections 1128(a)(1) and 1128(c)(3)(B) of the Social Security Act (Act). I.G. Ex. 1. ⁽¹⁾

By letter dated February 5, 1999, Petitioner requested information regarding how to receive "consideration of circumstances" with regard to the length of his exclusion from participation. I.G. Ex. 2. Petitioner did not articulate the circumstances for the I.G. to consider, and it does not appear that any evidence was submitted with the letter or subsequent thereto. Further, I see no evidence that the I.G. specifically responded to the request for information.

On April 30, 1999, the I.G. notified Petitioner by letter that he was excluded from participation for a period of 10 years due to his conviction in State court of a criminal offense related to the delivery of an item or service under the Medicaid program and the aggravating factor of his prior exclusion. This notice letter references and incorporates an attached statement of appeal rights. I.G. Ex. 3.

By letter dated September 13, 2001, Petitioner advised the I.G. that he was "interested in stopping [his] exclusion from eligibility." He acknowledged that he received the notice of exclusion dated April 30, 1999, and that he missed the 60-day deadline for filing a hearing request. He asserts that he was unable to respond in a timely manner due to "significant stress at the time." A copy of the September 13 letter to the I.G. was sent to the Civil Remedies Division attached to a cover letter. I.G. Ex. 4.

Petitioner's September 13, 2001 submission to the Civil Remedies Division (I.G. Ex. 4) was treated as a request for hearing and assigned docket number C-01-992. The case was originally assigned to Administrative Law Judge Carolyn Cozad Hughes but was subsequently reassigned to me on October 11, 2001. A telephonic prehearing conference was conducted on October 24, 2001, the substance of which is memorialized in my Order of November 15, 2001.

The I.G. moved to dismiss on the ground that Petitioner did not timely file a request for hearing. Petitioner has responded to that motion. ⁽²⁾

II. Issue

Whether Petitioner's request for hearing should be dismissed because it was not timely filed.

III. Findings of Fact and Conclusions of Law

A. Findings of Fact

1. The I.G. advised Petitioner by letter dated April 30, 1999, that he was being excluded from participation in Medicare, Medicaid and all other federal health care programs for a period of 10 years. I.G. Ex. 3.

2. The I.G.'s letter of April 30, 1999, included an attachment that advised Petitioner that he could "request a hearing before an administrative law judge . . . in writing within 60 days of (his receipt of) the OIG's letter of exclusion . . . ." I.G. Ex. 3.

3. Petitioner received the I.G. letter of April 30, 1999, within five days of the date of that letter. I.G. Ex. 4; 42 C.F.R. § 1005.2(c).

4. Petitioner requested a hearing by letter dated September 13, 2001. I.G. Ex. 4.

B. Conclusions of Law

1. Petitioner's request for hearing was not timely filed.

2. Dismissal of Petitioner's request for hearing is required pursuant to 42 C.F.R. § 1005.2(e)(1).

IV. Analysis

The regulations are clear that a request for hearing must be filed in writing within 60 days after the notice of exclusion is provided. The date of receipt of the notice is presumed to be five days after the date of the notice, unless there is a reasonable showing to the contrary. 42 C.F.R. § 1005.2(c). In this case, it is not disputed that the I.G. notice of exclusion was dated April 30, 1999. There is also no dispute that the I.G. notice letter included an attachment that advised Petitioner of his right to file a request for hearing and the regulatory requirements to accomplish the filing.

The regulations are also clear that I "will dismiss" a hearing request where a petitioner's hearing request is not timely filed. 42 C.F.R. § 1005.2(e)(1). The I.G. asserts, and I agree, that 42 C.F.R. § 1005.2(e)(1) gives me no discretion to waive a late filing or to grant an extension of time in which to file a request for hearing. Other judges have reached the same conclusion. John F. Pitts, R. Ph., DAB CR820 (2001); Clifford M. Sonnie, M.D., DAB CR732 (2001).

In this case, the issue is not whether I can waive a late filing or grant an extension of time to accomplish filing. The issue is whether Petitioner has rebutted the presumption of receipt of the notice in five days so that the 60-day appeal period was tolled, i.e., if Petitioner was not competent or able to understand the letter or notice could he be held to have received it before he was again able to understand the import of the notice and his due process rights provided by statute and regulations. Respondent relies upon the regulatory presumption of 42 C.F.R. § 1005.2(c) that delivery is presumed to be five days after the date of notice. However, the regulation does provide that the presumption may be rebutted by a reasonable showing to the contrary, and therein lies my discretion.

I can envision a set of facts where a petitioner may be found not to have received notice of intent to exclude due to mental impairment so severe as to have deprived the petitioner of the ability to understand the nature of the proceedings and the petitioner's rights. However, this is not such a case. The I.G. notice letter is dated April 30, 1999. The regulatory presumption is that Petitioner received the notice by May 5, 1999. Thus, the time for filing a request for hearing expired on about July 6, 1999. If the request for hearing was not filed prior to July 6, 1999, I have no option but to dismiss, unless Petitioner makes a reasonable showing that the running of the 60-day period was not triggered due to his not having received the notice of exclusion.

Petitioner alleges that he suffers from a mental impairment known as Post Traumatic Stress Disorder or PTSD. Petitioner submitted as pages 54 and 55 of P. Ex. 2, a discharge summary for the period March 1, 2001 through March 23, 2001, from the Veterans Administration Medical Center in Battle Creek, Michigan. The discharge summary establishes that Petitioner has been diagnosed as suffering from PTSD. However, Petitioner's evidence does not establish that he was suffering any symptoms of PTSD during the period April 30, 1999 through July 6, 1999. Petitioner has presented no medical evidence, affidavits from friends, family or third-parties, or any other evidence that he was so mentally impaired during the period from April 30 through July 6, 1999, that he was unable to comprehend or exercise his rights. Hence, the regulatory presumption that the I.G.'s notice of exclusion was delivered to Petitioner within five days has not been rebutted. Delivery is presumed to have occurred not later than May 5, 1999, and the 60-day period for filing a request for hearing expired about July 6, 1999. ⁽³⁾ There is no evidence that Petitioner attempted to file a request for hearing until September 13, 2001, more than two years after the period for filing his request for hearing expired.

V. Conclusion

Petitioner failed to file his request for hearing in a timely manner. Accordingly, his request for hearing is dismissed pursuant to 42 C.F.R. § 1005.2(e)(1).

Keith W. Sickendick

Administrative Law Judge

1. The I.G. offers I.G. exhibits (I.G. Exs.) 1 - 4 with the I.G.'s motion to dismiss. Petitioner offers two exhibits with his responsive pleadings, Petitioner's exhibits (P. Exs.) 1 and 2.

2. On January 23, 2002, I ordered Petitioner to show cause as to why the case should not be dismissed as having been abandoned, because Petitioner's response to the I.G.'s motion was not received timely. Petitioner responded on January 30, 2002, by providing a copy of his response that bears a date of November 26, 2001. Petitioner's response was apparently delayed due to continuing problems in the receipt of mail by my office through the U.S. Postal Service. I have accepted Petitioner's pleading as timely filed.

3. I take administrative notice that July 6, 1999, was a Tuesday and not a federal holiday.