SUBJECT: Robert Cole,

Petitioner,

The Inspector General

DECISION

I find that Robert Cole (Petitioner), failed to file his request for hearing in a timely manner. Additionally, the regulations do not provide the right to a hearing before an administrative law judge (ALJ) for the relief Petitioner seeks. Accordingly, Petitioner's request for hearing is dismissed pursuant to 42 C.F.R. § 1005.2(e)(1) and (4).

BACKGROUND

In August of 1990, the State of California, Board of Registered Nurses, revoked the nursing license of Petitioner. I.G. Ex. 3 ⁽¹⁾. As a result, on January 14, 1992, the Inspector General (I.G.) sent Petitioner notification that he was being excluded from participation in Medicare and state health care programs pursuant to section 1128(b)(4) of the Social Security Act (Act). Petitioner was informed by the I.G.'s January 14, 1992 letter that his exclusion would remain in effect until he once again obtained a valid license to provide health care in the state of California. I.G. Ex. 1.

A number of years later, in June of 2000, Petitioner applied to the I.G. to reinstate his eligibility to participate in the Medicare program. On June 21, 2000, the reviewing official for the I.G., wrote to Petitioner and explained that he was not eligible for reinstatement because the documents he had submitted to the I.G. with his application did not show he had regained his California license, and further stated:

[o]nce you have obtained a valid nursing license in the State of California, you will meet the criteria set forth at 42 C.F.R [§] 1001.501(b)(4) and you may then submit an application for reinstatement to the OIG [Office of the Inspector General.]

P. Ex. 4.

On the same day Petitioner received the I.G.'s letter, Petitioner sent a letter to the Civil Remedies Division, Departmental Appeals Board, requesting an administrative hearing. I.G. Ex. 2. The Civil Remedies Division docketed the case and ultimately the case was reassigned to me for hearing and decision.

Thereafter, apparently, Petitioner began the process of license reinstatement in California. On August 29, 2001, he was advised by the California Board of Registered Nursing that his reinstatement hearing had resulted in a favorable decision and that, with the payment of fees, and a renewal application, among other things, he could obtain his license.

On March 7, 2002, the I.G. filed a motion to dismiss Petitioner's request for hearing on the grounds that Petitioner failed to file his request for hearing in a timely manner pursuant to 42 C.F.R. § 1005.2(e)(1). On March 26, 2002, Petitioner filed his objection to the I.G.'s motion to dismiss arguing primarily that he did not receive the original exclusion notice of January 14, 1992.

ISSUES

The issues in this case are: (1) whether the Petitioner timely filed his request for a hearing; and (2) whether an ALJ has the authority to require the I.G. to reinstate the Petitioner after he obtained a valid nursing license from the state of California.

APPLICABLE LAW

An individual or entity who has been excluded from Medicare participation may request a hearing before an ALJ only on the issues of: (1) whether the I.G. had a basis for imposing the sanction of exclusion in the first place; and (2) whether the length of the exclusion was unreasonable. 42 C.F.R. § 1001.2007(a)(1)(i) and (ii). According to regulation, a request for hearing on an exclusion from Medicare participation must be filed within 60 days from the receipt of the notice of exclusion. 42 C.F.R. § 1001.2003.

The regulations also provide that:

The ALJ will dismiss a hearing request where:

(1) The Petitioner's or the respondent's hearing request is not filed in a timely manner; [and]

 

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(4) The Petitioner's or respondent's hearing request fails to raise any issue which may properly be addressed in a hearing.

42 C.F.R. § 1005.2(e).

Subpart F of 42 C.F.R. § 1001, entitled "Reinstatement into the Programs," describes how a person who has been excluded from participation in Medicare programs can become reinstated. By specific regulation, the I.G.'s decision to deny reinstatement, "will not be subject to administrative or judicial review." 42 C.F.R. § 1001.3004(c).

DISCUSSION

The Petitioner has essentially appealed the denial of reinstatement, not the original 1992 exclusion. A denial of reinstatement by the I.G. is not an issue properly before an ALJ.

The Petitioner's avenue of redress is to file another application for reinstatement. I simply have no jurisdiction to require the I.G. to reinstate the Petitioner. Based on the regulations, the Petitioner may request a hearing before an ALJ on only two issues: (1) whether the I.G. had a basis for exclusion in the first place; and (2) whether the length of the exclusion was reasonable. Petitioner did not state in his request for hearing or any other filing that the I.G. had no basis for excluding him. Petitioner has not denied that his California nursing license was revoked. Nor has he specifically stated that the length of the exclusion was unreasonable. He has argued that because he is no longer a California resident and he has been re-licensed in his home state, he should not have been required to have been reinstated in California in order to be reinstated by the I.G.

Although one might stretch this argument into interpreting the Petitioner's appeal as an appeal of the reasonableness of the length of the exclusion, the essential question is still an issue of when he should have been reinstated, and that is not an issue properly before an ALJ. 42 C.F.R. § 1001.3004(c).

Moreover, as the I.G. points out in its motion to dismiss, Petitioner is deemed to have received his notice of exclusion five days after the date of the notice unless Petitioner can make a "reasonable showing to the contrary." 42 C.F.R. § 1005.2(c). Without such a showing, Petitioner is deemed to have received his notice by January 19, 1992, and had until March 20, 1992 to appeal either the basis of the exclusion or the reasonableness of the exclusion's length.

Petitioner has not made a reasonable showing that he did not receive his notice of exclusion by January 19, 1992. He has denied that his residence in January 1992 was 1337 Kentucky Street, Concord, California, where the notice was sent. Petitioner has not, however, stated what is address was in January 1992. Instead, Petitioner submitted exhibits to show his address in 1993 and in 1997. This is not sufficient to show he did not receive the notice of exclusion. Moreover, he wrongly assumes the I.G. must show that Petitioner did receive the notice rather than the Petitioner having to make a reasonable showing he did not receive the notice in January 1992. Petitioner's appeal for a hearing dated June 2000 is not timely, it being well more than 60 days past the notice of exclusion.

Because Petitioner's appeal was not timely filed and because he has not raised an issue that I can properly consider, I must dismiss his appeal. 42 C.F.R. § 1005.2(e)(1) and (4). I note that, as stated in the I.G.'s letter of June 2000, denying his reinstatement, Petitioner is free to reapply for reinstatement.

Anne E. Blair

Administrative Law Judge

1. Without objection from the parties, I admit into evidence Inspector General Exhibits 1-3 (I.G. Exs. 1-3), which was attached to I.G.'s submission, "The Inspector General's Motion to Dismiss Petitioner's Request for Hearing," and Petitioner's Exhibits 1-5 (P. Exs. 1-5), which was attached to Petitioner's submission, "The Petitioner's Objection to the Motion to Dismiss."