CASE | DECISION | JUDGE

Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD
Civil Remedies Division
IN THE CASE OF  


SUBJECT:

Kenneth F. Kirstein,

Petitioner,

DATE: May 22, 2002
                                          
             - v -

 

The Inspector General

 

Docket No.C-02-221
Decision No. CR907
DECISION
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DECISION

I dismiss the request for hearing that was filed by Petitioner, Kenneth F. Kirstein. I do so because: (1) Petitioner did not file his hearing request timely; and, (2) Petitioner did not answer the motion by the Inspector General (I.G.) to dismiss his hearing request.

I. Background

On June 30, 2000, the I.G. notified Petitioner that he was being excluded from participating in Medicare and other federally funded health care programs. Petitioner did not request a hearing until November 10, 2001. At that point the case was assigned to me for a hearing and a decision. On March 20, 2002, the I.G. moved to dismiss Petitioner's hearing request. Petitioner did not answer the motion.

II. Issues, findings of fact and conclusions of law

A. Issue

The issue in this case is whether there are grounds for me to dismiss Petitioner's request for a hearing.

B. Findings of fact and conclusions of law

I make findings of fact and conclusions of law (Findings) to support my decision in this case. I set forth each Finding below, as a separate heading. I discuss each Finding in detail.

1. Petitioner's request for a hearing must be dismissed because Petitioner failed to file a timely hearing request.

Administrative hearings involving the I.G. are governed by regulations at 42 C.F.R. Part 1005. The regulations provide that a party who receives a notice of an adverse determination from the I.G. must request a hearing within 60 days from receipt of the notice. 42 C.F.R. § 1005.2(c). Receipt of a notice is presumed to be five days from the date that the notice is mailed. Id. The regulations provide that an administrative law judge "will dismiss" a hearing request that is not filed timely. 42 C.F.R. § 1005.2(e)(1).

The regulations do not give an administrative law judge discretion in a case involving the I.G. to decide whether dismissal of a hearing request is appropriate if the request is not filed timely. I read the phrase "will dismiss" as mandating dismissal of a hearing request in such a case.

In this case I have no choice but to dismiss Petitioner's hearing request as being filed untimely. Petitioner did not file his request until more than a year had elapsed from the date when he received the I.G.'s notification of his exclusion. In his request for hearing, dated November 10, 2001, Petitioner acknowledged that he received the exclusion notice in July 2000.

2. Dismissal of Petitioner's hearing request also is appropriate because Petitioner failed to answer the I.G.'s motion to dismiss.

Regulations provide, at 42 C.F.R. § 1005.14, that an administrative law judge may enter sanctions against a party for failing to defend an action. Sanctions may include dismissal of a hearing request. 42 C.F.R. § 1005.14(a)(5).

Petitioner filed no answer to the I.G.'s motion to dismiss. I find it appropriate to dismiss Petitioner's hearing request in light of that. I note that, in this case, I am doing no more than to award the I.G. the relief that it sought in its motion and against which Petitioner failed to offer any defense.

JUDGE
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Steven T. Kessel

Administrative Law Judge

CASE | DECISION | JUDGE