Maria Bejacmar-Didier, Ph.D., DAB CR5321 (2019)

DECISION

The request for hearing of Petitioner, Maria Bejacmar-Didier, is dismissed pursuant to 42 C.F.R. § 1005.2(e)(1)1 because it was not timely filed.

I. Background

The Inspector General for the U.S. Department of Health and Human Services (IG) notified Petitioner by letter dated December 31, 2015, that she was being excluded from participation in Medicare, Medicaid, and all federal health care programs for the minimum statutory period of five years. The IG cited section 1128(a)(1) of the Social Security Act (the Act) (42 U.S.C. § 1320a-7(a)) as the basis for Petitioner's exclusion. The IG stated that the exclusion was due to Petitioner's conviction in the DeKalb County Superior Court, State of Georgia, of a criminal offense related to the delivery of an item or service under Medicare or a state health care program. IG Exhibit (Ex.) 1. Petitioner's five-year exclusion began January 20, 2016, and will expire on January 19, 2021.

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Petitioner filed a request for hearing (RFH) on March 5, 2019. The case was assigned to me for hearing and decision on March 21, 2019. A prehearing conference was convened on April 11, 2019. The substance of the prehearing conference is memorialized in my Prehearing Conference Order and Schedule for Filing Briefs and Documentary Evidence dated April 11, 2019 (Prehearing Order). During the prehearing conference, the IG requested to file a motion to dismiss prior to case development. I set a briefing schedule for a motion to dismiss by the IG. Prehearing Order ¶ 5.

The IG filed a motion to dismiss on May 2, 2019, with a supporting memorandum (IG Br.) and IG Exhibit (Ex.) 1. On May 6 and 7, 2019, Petitioner filed a response in opposition to the IG motion (P. Br.). Departmental Appeals Board Electronic Filing System (DAB E-File) ##6, 6a, 6b, 6c, 7. Petitioner requested that I consider the documents (DAB E-File #1b) she submitted with her request for hearing as her evidence, and I refer to that document as Petitioner's Exhibit (P. Ex.) 1. No objections have been made to my consideration of IG Ex. 1 and P. Ex. 1, and both are admitted as evidence.

II. Discussion

A. Applicable Law

Section 1128(f) of the Act (42 U.S.C. § 1320a-7(f)) establishes Petitioner's rights to a hearing by an administrative law judge (ALJ) and judicial review of the final action of the Secretary of the United States Department of Health and Human Services (Secretary). The Secretary has provided by regulation that an excluded individual has the right to request a hearing before an ALJ. 42 C.F.R. §§ 1001.2007(a)(1), 1005.2(a). The regulations require that a request for hearing be in writing and be filed not more than 60 days from the date of receipt of the notice of exclusion. 42 C.F.R. §§ 1001.2007(b), 1005.2(c). The notice of exclusion is presumed to be received five days after the date on the notice, unless there is a reasonable showing to the contrary. 42 C.F.R. § 1005.2(c). I am required to dismiss a request for hearing that is not filed timely, that is, within 60 days of receipt of the notice of exclusion. 42 C.F.R. § 1005.2(e)(1). The regulations grant me no discretion to waive a late filing or to extend the time for filing.

B. Issue

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

C. Findings of Fact, Conclusions of Law, and Analysis

My conclusions of law are set forth in bold followed by the pertinent findings of fact and analysis.

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

2. Petitioner's request for hearing must be dismissed pursuant to 42 C.F.R. § 1005.2(e)(1).

There is no dispute that the IG mailed Petitioner a letter dated December 31, 2015, notifying Petitioner that she was being excluded from Medicare, Medicaid, and all federal health care programs. IG Ex. 1. Pursuant to 42 C.F.R. § 1005.2(c), there is a rebuttable presumption that the December 31, 2015 notice was received by Petitioner five days later on Tuesday, January 5, 2016. Petitioner does not allege that she received the December 31, 2015 IG notice after January 5, 2016. Pursuant to 42 C.F.R. §§ 1001.2007(b) and 1005.2(c), Petitioner had 60 days to file her request for hearing. The 60th day after presumed receipt fell on Saturday, March 5, 2016, a weekend. Therefore, the deadline for Petitioner to file her request for hearing was the next business day, Monday, March 7, 2016. 42 C.F.R. § 1005.12(a).

There is no dispute that Petitioner filed her request for hearing on March 5, 2019, the postmark on her request for hearing. RFH at 3. To be timely filed, Petitioner's request for hearing had to be filed not later than March 7, 2016, but she did not file the request for hearing until March 5, 2019, nearly three years late. Because Petitioner's request for hearing was three years late, the IG moved that this case be dismissed.

Petitioner argues that she suffers severe medical conditions and offered evidence in support of her argument. RFH; P. Ex. 1; P. Br. However, Petitioner fails to allege or submit any evidence that she did not receive the IG notice on about January 5, 2016, and she has not rebutted the presumption of receipt on that date. The regulations grant me no discretion to extend the time for filing a request for hearing or to excuse the late filing of a request for hearing for any reason, including serious medical conditions. I am required to dismiss a hearing request that is not timely filed, as indicated by the drafter's use of the term "will" in the regulation. 42 C.F.R. § 1005.2(e)(1).

Accordingly, I conclude that I have no discretion but must dismiss Petitioner's request for hearing pursuant to 42 C.F.R. § 1005.2(e)(1).

III. Conclusion

For the foregoing reasons, Petitioner's request for hearing is dismissed.

• 1. References are to the 2014 revision of the Code of Federal Regulations (C.F.R.) in effect at the time of the agency action, unless otherwise stated.