SUBJECT:

George P. Rowell, M.D.,

Petitioner,

The Inspector General

DECISION

This matter is before me on the Inspector General's (I.G.'s) Motion to Dismiss Petitioner's Request for Hearing as untimely filed. As I explain below, I find that the Request for Hearing was not timely filed as required by 42 C.F.R §§ 1001.2007(b) and 1005.2(c), and therefore I grant the I.G.'s Motion to Dismiss.

PROCEDURAL BACKGROUND

George P. Rowell, M.D., Petitioner in this case, practiced medicine in the State of California during the 1990s. In 1997, Petitioner was convicted in the Superior Court of the State of California, County of Los Angeles, on criminal charges related to the delivery of an item or service under the California Medicaid program. He was sentenced to a term of confinement in a California State prison.

As she was required to do by the terms of section 1128(a)(1) of the Social Security Act (Act), 42 U.S.C. § 1320a-7(a)(1), the I.G. began the process of excluding Petitioner from participation in Medicare, Medicaid, and all other federal health care programs. The Act provides for a minimum mandatory term of exclusion of not less than five years, but authorizes the I.G. to enlarge the period of exclusion if certain aggravating factors are shown. Sections 1128(c)(3)(B) of the Act; 42 C.F.R. §§ 1001.102(a) and (b). On September 29, 1997, the I.G. wrote to Petitioner at his prison address to inform him of the exclusion process and to solicit from him any information he might wish to submit on the length of exclusion. Petitioner answered the I.G.'s letter on October 11, 1997.

On November 28, 1997, the I.G. notified Petitioner that he was to be excluded for a term of 10 years from participation in Medicare, Medicaid, and all other federal health care programs as required by section 1128(a)(1) of the Act. The I.G.'s letter conveying the notification was mailed to Petitioner at the same prison address the I.G. had used on her September 29, 1997 letter.

Petitioner's Request for Hearing (P. R. H.) was filed in a letter dated March 22, 2002. I convened a prehearing conference by telephone on May 14, 2002 for the purpose of addressing outstanding procedural issues, and noted that the timeliness of Petitioner's Request must be addressed before the merits of the case could be reached. Accordingly, by Order of May 15, 2002, I directed the I.G. to submit a motion, brief, and exhibits to explore the issue, and established a schedule by which the parties could submit additional briefing and exhibits. The I.G. filed her Motion to Dismiss with supporting authorities on June 19, 2002; the I.G.'s motion proffered I.G. Exhibit (I.G. Ex.) 1. On July 19, 2002, Petitioner submitted his Reply to Respondent's Motion to Dismiss Request for Hearing, and proffered Petitioner Exhibits (P. Exs.) 1 and 2. The I.G. submitted her Reply Brief and I.G. Exs. 2, 3, and 4 on August 23, 2002. Petitioner did not avail himself of the opportunity to respond, although my Order of May 15, 2002, had allowed him until September 13, 2002, to do so.

No objections have been raised to I.G. Exs. 2, 3, and 4, nor to P. Exs. 1 and 2. I therefore admit them to the record of this case. Petitioner has objected to the admission of I.G. Ex. 1. For reasons I shall outline in the body of this Decision, I overrule Petitioner's objection and admit I.G. Ex. 1.

ISSUES

The legal issue before me is limited. It is, very simply, whether Petitioner's Request for Hearing was filed in a timely manner, in compliance with the terms of 42 C.F.R. §§ 1001.2007(b) and 1005.2(c).

The record before me requires that this issue be resolved in the negative: Petitioner's Request for Hearing was filed untimely, over four years past the deadline established by regulation. Petitioner's arguments that he did not receive the I.G.'s notice letter are unavailing here in the face of settled precedent establishing a strong presumption of its receipt in due course. And the regulations governing this appeal do not permit me to consider a showing of "good cause" for his untimely filing.

CONTROLLING STATUTES AND REGULATIONS

Section 1128(a)(1) of the Act, 42 U.S.C. § 1320a-7(a)(1), requires the exclusion from participation in Medicare, Medicaid, and all other federal health care programs of any individual or entity convicted of a criminal offense related to the delivery of an item or service under title XVIII of the Act (the Medicare program) or any State health care program. This mandatory exclusion must be imposed for a minimum of five years whenever one of the four classes of predicate convictions set out in section 1128(a) of the Act is established. Section 1128(c)(3)(B) of the Act.

The Office of Inspector General is charged with effecting exclusions based on sections 1128(a)(1) and 1128(c)(3)(B) of the Act. See 42 C.F.R. § 1001.101. If the I.G. determines that a conviction constitutes a proper predicate for the exclusion, she must send notice of her decision to exclude to the affected individual or entity. 42 C.F.R. § 1001.2002.

The individual or entity to be excluded may appeal the exclusion by filing a request for hearing before an Administrative Law Judge. 42 C.F.R. § 1001.2007. That regulation sets certain limits on the issues that may be considered on appeal and certain requirements in the hearing request's content. It also establishes a discrete time limit for the filing of a request for hearing: 42 C.F.R. § 1001.2007(b) provides that:

The excluded individual or entity has 60 days from the receipt of notice of exclusion provided for in (section) 1001.2002 to file a request for such a hearing.

This filing time limit is reiterated in the regulations governing the conduct of an excluded party's appeal before the Administrative Law Judge, which appear at 42 C.F.R. §§ 1005.1-1005.23. The 60-day deadline appears at 42 C.F.R. § 1005.2(c):

The request for hearing will be made in writing to the DAB; signed by the petitioner or respondent, or by his or her attorney; and sent by certified mail. The request must be filed within 60 days after the notice, provided in accordance with . . . (section) 1001.2002 . . . is re- ceived by the petitioner or respondent. For purposes of this section, the date of receipt of the notice letter will be presumed to be 5 days after the date of such notice unless there is a reasonable showing to the contrary.

Finally, 42 C.F.R. § 1005.2(e) directs 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.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

I find and conclude as follows:

1. Petitioner George P. Rowell, M.D., received notice of his suspension from Medicare, Medicaid, and all other federal health care programs pursuant to section 1128(a)(1) of the Act on or about December 3, 1997. I.G. Ex. 1; 42 C.F.R. § 1005.2(c).

2. Petitioner filed his Request for Hearing on March 22, 2002. P. R. H. at 1.

3. Petitioner's Request for Hearing was not filed in a timely manner. 42 C.F.R. §§ 1001.2007(b) and 1005.2(c).

4. Petitioner's Request for Hearing must be dismissed. 42 C.F.R. § 1005.2(e)(1).

DISCUSSION

My ruling on the I.G.'s Motion to Dismiss turns on Petitioner's ability to marshal the undisputed facts of record into "a reasonable showing to the contrary" of the presumption that he received notice of his exclusion not later than December 3, 1997. When examined in the light of certain converging lines of authority in this forum, those undisputed facts enhance, rather than impeach, the strength of that presumption.

I.G. Ex. 1 is the written instrument by which notice that he was to be excluded pursuant to section 1128(a)(1) of the Act was purportedly conveyed to Petitioner. Petitioner objects to the admission of the document, Petitioner's Brief ( P. Br.) at 3, but the objection itself is subject to--and my basis for overruling the objection and admitting I.G. Ex. 1 is grounded in--the strong presumption created in 42 C.F.R. § 1005.2(c) of the letter's preparation and mailing in the usual course of agency business and its delivery in a usual and timely fashion. Thus, without discussing yet the question of the date by which I.G. Ex. 1 can be presumed to have reached the Petitioner, it is possible to accept I.G. Ex. 1 as authentic and entitled to admission as probative of its having been mailed on November 28, 1997, particularly since I.G. Ex. 4 establishes it as part of the I.G.'s official file in this case, and I.G. Ex. 2 and P. Ex. 2 place it in a logical administrative and chronological sequence. The value of P. Ex. 2 in establishing the authenticity of I.G. Ex. 1 is considerable, since it demonstrates that an orderly series of administrative steps, of which both P. Ex. 2 and I.G. Ex. 1 were integrated parts, had begun.

Petitioner's objection seems to challenge both the authenticity of the letter and the fact of its mailing, but offers no support for the former challenge and only notes the absence of a "certification of mailing" for the latter. One of the converging lines of authority to which I refer above makes it quite clear that a certified mailing is not required by section 1128(f) of the Act or by 42 C.F.R. § 1001.2002: an argument based on the absence of proof-of-mailing certifications or affidavits was explicitly considered and rejected in Ronald J. Crisp M.D., DAB CR724 (2000). And in the absence of even a scintilla of evidence impugning the authenticity of I.G. Ex. 1, I believe that it is admissible.

Once admitted, I.G. Ex. 1 is part of the body of undisputed facts in this record and must be read in the context of those other undisputed facts. It is not disputed, for example, that during the relevant period Petitioner was an inmate at a California State prison in Delano, California, but if it were in question, then Petitioner's incarceration there and the mailing address at which he received official correspondence concerning his exclusion is established beyond cavil by I.G. Exs. 2 and 3. It is not denied, nor could it reasonably be, that the notice of exclusion bore the same address as a fully-successful and duly-delivered letter to Petitioner there only 60 days earlier. I.G. Exs. 1, 2, and 3. There is no dispute that the notice of exclusion was not returned to the I.G. as undelivered or undeliverable. I.G. Ex. 4.

The notion of an evidentiary presumption created by statute or regulation may be abstract, but its operation--as in this case--always is observed in the concrete application of stubborn facts. Here, the abstract presumption is that Petitioner received I.G. Ex. 1, the notice letter, not later than December 3, 1997. The facts, however, present a much more powerful picture: they show that Petitioner had received official mail at his prison address barely two months before, and had answered that mail; they show that he was on notice of a proposed exclusion and was competent to contest it by mail; they show that the notice letter was not returned undelivered to the I.G. as improperly addressed or otherwise undeliverable; and they show that the California health authorities were given notice of Petitioner's exclusion contemporaneously with the notice he here denies receiving.

Those facts describe the situation at the approximate time I.G. Ex. 1 was mailed, but there is more. Petitioner was serving a two-year prison term in the autumn of 1997, and although the precise beginning date of the term cannot be established on the limited record before me, it could have begun no earlier than October 4, 1997. I.G. Exs. 2 and 3. It would have ended with Petitioner's discharge from custody sometime in late 1999 at the very latest. Participation in California and federal health care programs was closed to Petitioner then by operation of the exclusions described in I.G. Ex. 1 and P. Ex. 2. There was thus a period of at least two full years and several months between the approximate date of Petitioner's release from prison and the filing of his Request for Hearing, during which period Petitioner now asserts he was unaware that his exclusion had become final. P. Ex. 1; P. R. H. at 1. Given the representations concerning Petitioner's medical practice in P. R. H. at 2, he is simply not credible when he generally denies being aware of his exclusion from those programs, yet asserts a history of an "intention to vigorously defend against attacks on his freedom and livelihood." P. Br. at 2.

Nor is Petitioner any more credible when he specifically denies receiving I.G. Ex. 1. An effort at the "reasonable showing to the contrary" required to rebut the presumption created by 42 C.F.R. § 1005.2(c) requires facts. In their place, Petitioner offers the speculation that abusive prison authorities might have prevented his receipt of I.G. Ex. 1. P. Br. at 3. He does not offer an explanation of how or why I.G. Ex. 2 escaped the notice of these authorities, or of why or how the authorities came to settle on him and I.G. Ex. 1 as the focus of a federal felony, 18 U.S.C. § 1702. In fact, he can point to no facts directly supporting his speculation about I.G. Ex. 1 or about the more general conduct of affairs historically at the prison. There is simply nothing in the record before me that will permit me to entertain, even briefly, Petitioner's unsupported theories on the alleged non-delivery of I.G. Ex. 1.

There are instances where the "reasonable showing" has been successfully undertaken, and they, too, turned on stubborn facts. The leading case, cited by both sides in this appeal, is Mira Tomasevic, M.D., DAB CR17 (1989); the "reasonable showing" in that case amounted to a convincing factual demonstration that the petitioner had not, for a very substantial period, resided at the address to which the notice letter was mailed. A similar factual demonstration that the address on the notice letter was not the petitioner's mailing address at the relevant time was held a "reasonable showing" in Sean M. Maguire, M.D., DAB CR837 (2001). Except as an example of the sort of factual demonstration required to make a "reasonable showing," Tomasevic and Maguire are inapposite to this discussion. Other cases offer guidance to a petitioner undertaking a "reasonable showing": without so deciding, and thus as obiter dicta, Administrative Law Judges have suggested that facts proving that a third party actually interfered with or destroyed a notice letter could constitute a "reasonable showing," Julio M. Soto, M.D., DAB CR418 (1996), and that clinical proof of an incapacitating psychiatric illness might functionally negate the concept of "receipt" of the notice letter, Andrew J. Goodrow, DAB CR881 (2002).

These cases present examples resting on the proof of facts directly refuting the abstract presumption of receipt, but there are also to be found in the cases examples of what will not operate to rebut it, and one of them is directly applicable to the present case. Petitioner denies, simply and categorically, that he ever received I.G. Ex. 1:

4. I never received the notice attached to the Office of the Inspector General's (OIG) Motion to Dismiss. The first time I saw this notice and the attached rights to appeal and procedures therefor was in this moment.

P. Ex. 1 at 1.

This effort at a "reasonable showing" is identical to that attempted in Sunil R. Lahiri, M.D., DAB CR296 (1993), where it met with this result: "While Petitioner has offered a sworn affidavit that he never 'received' the Notice, such a statement is self-serving and is not enough to rebut the evidence that the Notice was received by Petitioner's employee in the ordinary course of business." Such a statement is Petitioner's now: self-serving, inherently unreliable and extrinsically incredible, and not enough to rebut the presumption of receipt created by 42 C.F.R. § 1005.2(c). Moreover, while I reach my assessment of Petitioner's credibility on this point without reliance on additional factors further tending to impeach it, I note that his felony conviction is precisely the sort of crimen falsi admissible for impeachment purposes under the rigorous standards of Fed. R. Evid. 609(a)(2).

Petitioner's Hearing Request, filed as it was on March 22, 2002, was untimely. The terms of 42 C.F.R. § 1005.2(c) establish the presumptive date of Petitioner's receipt of the November 28, 1997 notice letter as December 3, 1997. That presumption has not been rebutted by a reasonable showing to the contrary. The 60-day period for filing Petitioner's Request for Hearing established by 42 C.F.R. §§ 1001.2007(b) and 1005.2(c) therefore expired on or about February 2, 1998. Since I have no authority to extend the filing period, Petitioner's Request for Hearing must be dismissed pursuant to the authority of 42 C.F.R. § 1005.2(e)(1). Peter D. Farr, M.D., DAB CR909 (2002); Sean M. Maguire, M.D., supra; John F. Pitts, R. Ph., DAB CR820 (2001); Arthur H. Halprin, M.D., DAB CR671 (2000).

CONCLUSION

For the reasons set forth above, I grant the Inspector General's Motion to Dismiss Petitioner's Request for Hearing. The hearing request filed by Petitioner George P. Rowell, M.D., on March 22, 2002, must be, and it is, dismissed.

Richard J. Smith

Administrative Law Judge