Paige M. Aletti, ALJ Ruling 2020-9 (HHS CRD Apr. 13, 2020)

DISMISSAL

I dismiss Paige M. Aletti’s (Petitioner) hearing request because it is untimely.

I.  Background

In a September 30, 2019 notice, the Inspector General of the United States Department of Health and Human Services (IG) informed Petitioner that she was being excluded from participation in all federal health care programs for five years effective 20 days from the date on the notice.  The IG imposed a mandatory exclusion under 42 U.S.C. § 1320a-7(a)(2) because, as alleged by the IG, Petitioner had been convicted in a New York State court of a criminal offense related to neglect or abuse of patients in connection with the delivery of a health care item or service.  The IG enclosed with the notice a document entitled “How to Appeal Your Exclusion,” which stated Petitioner could request an administrative law judge (ALJ) hearing to dispute the exclusion if she did so within 60 days of receiving the exclusion notice.  The enclosure also stated that the exclusion notice is presumed to have been received five days after the date on the notice unless there is a reasonable showing to the contrary.  The IG sent the notice with enclosures to Petitioner at 6633 Sholtz Road, Verona, NY  13478-2714, with a copy sent to Petitioner’s counsel at 298 Genesee Street, Utica, NY  13502.  In this proceeding, Petitioner’s counsel

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submitted his copy of the exclusion notice and it bears a date stamp as having been received by his office on October 4, 2019.

In a letter dated January 15, 2020, but postmarked January 17, 2020, Petitioner, through counsel, filed a request for hearing by United States Mail.  Petitioner stated in her request that she enclosed correspondence dated December 5, 2019, in which she appealed the September 30, 2019 exclusion notice.  Petitioner’s request for hearing, however, did not enclose either the exclusion notice or the December 5, 2019 correspondence purporting to appeal the exclusion.  The time period between the September 30, 2019 exclusion notice through the postmark of the hearing request, January 17, 2020, is 109 days.

The January 15, 2020 letter asserted that Petitioner has never been convicted of any misdemeanor or felony offense.  Petitioner admitted to only having been convicted of a disorderly conduct “violation” under New York State law and that Petitioner received a New York State Certificate of Relief from Disabilities.

On February 7, 2020, the Civil Remedies Division (CRD) acknowledged receipt of Petitioner’s hearing request, notified the parties I would hold a prehearing conference on March 4, 2020, and issued my Standing Prehearing Order. 

I held a telephonic prehearing conference on March 4, 2020, at which counsel for Petitioner and the IG appeared.  The substance of the prehearing conference is set forth in my Order Following Prehearing Conference, also issued on March 4, 2020 (Prehearing Order).  During the prehearing conference, Petitioner’s counsel advised that Petitioner sought to challenge the IG exclusion based on whether Petitioner had been “convicted” for purposes of the exclusion statute.1

At the conference, I asked Petitioner to address the threshold jurisdictional issue of whether Petitioner timely filed a hearing request within 60 days of receipt of the IG’s notice of exclusion, as required by law.  42 U.S.C. §§ 405(b)(1), 1320a-7(f)(1); 42 C.F.R. §§ 1001.2007(b), 1005.2(c).  I explained that the regulations require me to dismiss an untimely hearing request.  42 C.F.R. § 1005.2(e)(1).  Petitioner’s counsel indicated that he received the hearing request on October 4, 2019, and sought to request a hearing through the correspondence dated December 5, 2019.  I set a briefing schedule on the issue of the timeliness of the hearing request.

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On March 16, 2020, Petitioner filed, through the Departmental Appeals Board Electronic Filing System (DAB E-File), unsigned correspondence from Petitioner’s counsel addressed to CRD, dated December 4, 2019, appealing the IG exclusion.  On that same date, Petitioner moved for the acceptance of the hearing request even though it was untimely.  Petitioner’s counsel included an affirmation in support of the motion stating that counsel prepared the December 4, 2019 request for hearing, but did not file the request due to inadvertent error.  Counsel affirmed that he was unaware that the hearing request had not been timely filed until the prehearing conference on March 4, 2020.  Counsel stated that he consulted with IG counsel, who could not agree to the late filing, but who stated that she would not oppose or object to my accepting the untimely hearing request.  Petitioner’s counsel argued that good cause exists for the late filing because he intended to file the hearing request timely and believed he had. 

II.  Discussion

Section 1128(a) of the Social Security Act requires the exclusion from participation in Medicare, Medicaid, and other Federal health care programs of any individual or entity convicted of certain classes of criminal offenses.  42 U.S.C. § 1320a-7(a).  If the IG determines that a conviction constitutes a proper basis for exclusion, he must send notice of the decision to exclude to the affected individual or entity.  42 U.S.C. § 1320a-7(c);  42 C.F.R. § 1001.2002(a).  The exclusion notice must include information on the appeal rights of the excluded individual.  42 C.F.R. § 1001.2002(c)(6). 

A request for hearing to dispute the imposition of an exclusion “must be filed within sixty days after notice of such decision is received by the individual making such request.” 42 U.S.C. §§ 405(b)(1), 1320a-7(f)(1); see 42 C.F.R. §§ 1001.2007(b), 1005.2(c).  Further, “the date of receipt of the notice letter [is] presumed to be 5 days after the date of such notice unless there is a reasonable showing to the contrary.”  42 C.F.R. § 1005.2(c).

The regulations do not provide an ALJ with the authority to extend the 60-day filing deadline for good cause, but only allow a petitioner to make a reasonable showing to rebut the presumption that he or she received the exclusion notice five days after the date of the notice.  In response to public comments on this subject, the Secretary of Health and Human Services and the IG considered and expressly declined to permit a good cause exception to the timeliness requirement for hearing requests.  57 Fed. Reg. 3298, 3323, 3358 (Jan. 29, 1992); Kris Durschmidt, DAB No. 2345 at 2 (2010) (“The regulatory choice to have no good cause exception . . . has already been made.”).2

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In the present case, the IG exclusion notice indicates that it was sent to Petitioner’s current address of record, with a copy to Petitioner’s counsel.  The exclusion notice submitted by Petitioner’s counsel is date‑stamped as having been received on October 4, 2019, consistent with counsel’s statements at the prehearing conference.  Based on the October 4, 2019 date of receipt, Petitioner needed to file the hearing request not later than December 3, 2019.  It is undisputed that Petitioner filed her hearing request on January 17, 2020 (postmark date), which is 45 days after the filing deadline.  Petitioner offers no evidence or argument to rebut the date of receipt of the exclusion notice. 

The evidence establishes that Petitioner did not file the hearing request within the 60-day regulatory deadline.  As a result, the regulations require me to dismiss her hearing request.  42 C.F.R. § 1005.2(e)(1); Ishtiaq A. Malik, M.D., DAB No. 2962 at 9 (2019); Kenneth Schrager, DAB No. 2366 at 6 (2011).  These regulations are binding on both the IG and ALJs.  42 C.F.R. §§ 1001.1(b), 1005.4(c)(1); see Chrysler Corp. v. Brown, 441 U.S. 281, 295-96 (1979) (holding that regulations have the force and effect of law).  Therefore, I have no authority to consider Petitioner’s request for a good cause exception to the filing deadline.

III.  Order

I dismiss Petitioner’s hearing request.

• 1. I did not address the merits of this case at the prehearing conference and, as explained below, have no authority to do so in this case.  However, I note that most CRD ALJs have concluded that a conviction of a “violation” under New York State law qualifies as a conviction of a criminal offense under 42 U.S.C. § 1320a-7(i).  Esohe Agbonkpolor, DAB CR5527 at 6 (2020); Crystal Y. Courtney-Wade, DAB  CR5256 at 7 (2019); Marie J. Jeanty, DAB CR4970 at 5 (2017); Tara Lyn Justin, DAB CR4689 at 3 (2016).
• 2. Although the Social Security Administration adopted the IG’s procedural regulations almost in their entirety for its civil monetary penalty cases, it added a good cause exception to the 60-day filing deadline.  20 C.F.R. § 498.202(f)(1); 61 Fed. Reg. 65,467, 65,468 (Dec. 13, 1996).