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Department of Health and Human Services DEPARTMENTAL APPEALS BOARD Civil Remedies Division |
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| IN THE CASE OF | |
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Andrew M. Perez, |
DATE: November 18, 2005 |
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The Inspector General
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Docket No.C-05-344 Decision No. CR1371 |
| DECISION | |
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This matter is before me on the Inspector General's Motion to Dismiss Petitioner's request for hearing as untimely filed. 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 I, therefore, grant the Inspector General's Motion to Dismiss pursuant to 42 C.F.R. � 1005.2(e)(1). I. Procedural History On February 28, 2003, the Inspector General (I.G.) notified Andrew M. Perez (Petitioner) that he was being excluded from participation in federal health care programs. The I.G. excluded Petitioner because his "license to practice medicine or provide health care in the State of Arizona was revoked, suspended, or otherwise lost or was surrendered while a formal disciplinary proceeding was pending before the State licensing authority for reasons bearing on [his] professional competence, professional performance, or financial integrity." The I.G. told Petitioner in the letter that the exclusion would last at least as long as his license was revoked, suspended, or otherwise lost. Petitioner appealed his exclusion in a letter dated May 17, 2005, more than two years later. I held a prehearing telephone conference in this case on July 8, 2005. During that conference, I advised Petitioner of his right to be represented by an attorney, but he elected to proceed pro se. As set forth in the briefing schedule established during the telephone prehearing conference, the I.G. filed The Inspector General's Motion for Summary Affirmance and The Inspector General's Brief in Support of Motion for Summary Affirmance and four proposed exhibits (I.G. Exs. 1 - 4). The I.G. addressed both the timeliness and the merits of Petitioner's appeal of his exclusion. On September 12, 2005, the Departmental Appeals Board (DAB) received a one-page letter from Petitioner along with four letters of recommendation from others in his field of respiratory therapy. The I.G.'s proposed exhibits and Petitioner's enclosed letters are included without objection into the record in this case. Because timeliness of Petitioner's request for hearing is an issue in this case, I have included a copy of the I.G.'s February 28, 2003 notice letter into the record and mark it as CRD Ex. 1. The record was closed on September 23, 2005. II. Issue The first issue before me is 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). III.
Authority
Section 1128(b) of the Social Security Act (Act), 42 U.S.C. � 1320a-7(b)(4), permits the Secretary of Health and Human Services (Secretary) to exclude certain individuals and entities from participation in Medicare, Medicaid, and all federal health care programs. See 42 U.S.C. � 1320 a- 7(b). In particular, section 1128(b)(4) authorizes the Secretary to exclude:
42 U.S.C. � 1320a-7(b)(4)(A); see also 42 C.F.R. � 1001.501(a). The I.G. is charged with effecting exclusions based on sections 1128(b)(4) of the Act. See 42 C.F.R. � 1001.501. If the I.G. determines there exists a proper predicate for the exclusion, the I.G. must send notice of that 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. Section 1001.2007 sets 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:
This filing time limit is restated 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):
Finally, 42 C.F.R. � 1005.2(e) directs that:
IV. Findings of Fact and Conclusions of Law I find and conclude as follows: 1. The I.G. sent its February 28, 2003 notice letter to Petitioner at the following address:
CRD Ex. 1. 2. Petitioner's current address is:
3. With respect to the timeliness of his request for hearing, Petitioner stated in his reply to the I.G.'s motion for summary affirmance that he did not receive an exclusion notification letter that was sent to him on February 28, 2003, and was very surprised he was unable to be employed in any Medicare programs. Petitioner stated nothing further regarding his receipt of the notice letter. 4. The I.G. submitted several documents from the State of Arizona Board of Respiratory Care Examiners regarding the revocation of Petitioner's respiratory therapy license. I.G. Exs. 1, 2, 3, and 4. All of the documents were copied and sent to Petitioner at the same address to which the I.G.'s notice of exclusion was mailed; that is, 1219 W. Indian School Rd., in Phoenix. These documents were sent to Petitioner in early 2002. Id. 5. While it is possible that Petitioner moved between April of 2002 and February 2003, I, nonetheless, find that he received notice of his exclusion from Medicare, Medicaid, and all other federal health care programs pursuant to section 1128(b)(4) of the Act on or about February 28, 2003. I.G. Ex. 1; 42 C.F.R. � 1005.2(c). 6. Petitioner has failed to make a reasonable showing that he did not receive the I. G.'s notice on or before March 5, 2003. 42 C.F.R. � 1005.2(c). 7. Petitioner filed his request for hearing on May 17, 2005. 8. Petitioner's request for hearing was not filed in a timely manner. 42 C.F.R. �� 1001.2007(b) and 1005.2(c). 9. Petitioner's request for hearing must be dismissed. 42 C.F.R. � 1005.2(e)(1). V. Discussion I decide that Petitioner's request for a hearing must be dismissed as untimely. By regulation, Petitioner was presumed to have received notice of his exclusion on or about February 28, 2003, but no later than March 5, 2003. 42 C.F.R. � 1005.2 (c). Petitioner did not make a "reasonable showing" to rebut the presumption he received the notice on or about that date. In order to preserve his appeal of the exclusion, Petitioner was required to file his request for a hearing not later than May 4, 2003, which is 60 days from his receipt of the notice, presumed to be five days after the date it was mailed. Id. Petitioner filed his request for a hearing on May 17, 2005. Thus, I must dismiss Petitioner's request as untimely. 42. C.F.R. � 1005.2(e)(1). Section 1005.2(e)(1) requires that I dismiss a hearing request not filed in a timely manner. This provision does not confer on me, as other administrative law judges of the Civil Remedies Division have also held, the authority to consider any facts which might constitute good cause for late filing a hearing request. See Peter D. Farr, M.D., DAB CR909 (2002); Andrew J. Goodrow, DAB CR881 (2002); John F. Pitts, R.Ph., DAB CR820 (2001); Clifford M. Sonnie, M.D., DAB CR732 (2001). Thus, once the untimeliness of the request is established, the only manner in which a petitioner can overcome a motion to dismiss would be to make a "reasonable showing" to rebut the presumption of receipt of the notice. 42 C.F.R. � 1005.2(c). What constitutes a "reasonable showing" has been addressed in previous decisions. An administrative law judge has previously concluded that mere assertions of non-receipt are insufficient to constitute a reasonable showing even if given under oath. Sunil R. Lahiri, M.D., DAB CR296 (1993) (while petitioner "affirmed" that he never "received" the notice of exclusion, such a statement is self-serving and is not enough to rebut the evidence that the notice was received by petitioner in the ordinary course of business). Moreover, speculative assertions of irregularities or delays in the delivery of mail are not sufficient to constitute a "reasonable showing" that rebuts the presumption of receipt. George P. Rowell, M.D., DAB CR974 (2002). In his letter in opposition to the I.G.'s motion to dismiss, Petitioner claims he did not receive the I.G.'s February 28, 2003 notice letter until he was surprised that he was unable to be employed in any Medicare programs. Petitioner provided no evidence other than his statement. He provided no documentary evidence of when he moved from 1219 to 1301 W. Indian School Road, or that his mail was forwarded improperly. I find that Petitioner's unsupported statement and his unsubstantiated claim of non-receipt do not constitute a "reasonable showing" that rebuts the presumption that he received the notice of exclusion on or about February 28, 2003. I agree with the principle discussed in Lahiri (supra) and Rowell (supra), that unsupported statements and theories do not establish the facts necessary to effectively rebut the presumption of receipt set forth in section 1005.2(c). Accordingly, I conclude that Petitioner received the notice of exclusion on or about February 28, 2003. Because Petitioner's request for hearing was filed more than two years after his notice of exclusion and not within 60 days of receipt of the notice as required in the regulations, I will dismiss Petitioner request for hearing as untimely. 42 C.F.R. � 1005.2(e)(1). VI.
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 Andrew M. Perez on May 17, 2005 must be, and it is, dismissed. |
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| JUDGE | |
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Anne
E. Blair
Administrative Law Judge |
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