SUBJECT:

Lynette Mae Rohar,

Petitioner,

The Inspector General

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 July 31, 2002, the Inspector General (I.G.) notified Lynette Mae Rohar (Petitioner) that she was being excluded from participation in federal health care programs for a period of ten years. The I.G. excluded Petitioner pursuant to section 1128(a)(1) of the Act alleging that she was convicted in the Superior Court of California, San Bernardino County, of a criminal offense related to the delivery of an item or service under the state Medicaid program. The I.G. determined that two aggravating factors existed that warranted excluding Petitioner for ten years. On June 15, 2005, almost three years later, Petitioner filed a request for hearing regarding her exclusion.

I held a prehearing telephone conference in this case on August 17, 2005. During that conference, I advised Petitioner of her right to be represented by an attorney but she elected to proceed pro se. As set forth in the briefing schedule established during the telephone prehearing conference, the I.G. filed a motion to dismiss or, in the alternative, a motion for summary judgment and attached The Inspector General's Brief in Support of Motion to Dismiss or, in the Alternative, Motion for Summary Judgment and three proposed exhibits (I.G. Exs. 1-3). The I.G. addressed both the timeliness and the merits of Petitioner's appeal of her exclusion. On October 12, 2005, Petitioner submitted her responses to the I.G.'s motions. She included with her submission: (1) a letter dated May 25, 2005, from Wendy A. Dawson, an Investigations Analyst with the I.G.'s office; and (2) Petitioner's June 15, 2005 request for hearing. 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 July 31, 2002 notice letter into the record and mark it as CRD Ex. 1. The record was closed on November 4, 2005.

II. Issue

The 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(a) 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(a). In particular, section 1128(a)(1) authorizes the Secretary to exclude:

[a]ny individual or entity that has been convicted of a criminal offense related to the delivery of an item or service under title XVIII or under any State health care program.

42 U.S.C. � 1320a-7; see also 42 C.F.R. � 1001.101(a).

The I.G. is charged with effecting exclusions based on sections 1128(a)(1) of the Act. See 42 C.F.R. � 1001.101(a). 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:

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 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):

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 received 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--

The petitioner's or the respondent's hearing request is not filed in a timely manner.

IV. Findings of Fact and Conclusions of Law

I find and conclude as follows:

1. The I.G. sent its July 31, 2002 notice letter to Petitioner at the following address:

Lynette Mae Rohar

5523 Acacia Street

San Bernardino, CA 92407

CRD Ex. 1.

2. Petitioner has the same address currently as she did when the I.G.'s notice letter of July 31, 2002 was sent to her.

3. With respect to the timeliness of her request for hearing, Petitioner stated in her June 15, 2005 request for hearing that she did not knowingly break any laws, she pleaded no contest to the charges because she did not believe the charges applied to her; she did not understand the import of an exclusion until after attaining a certificate to become a Social Services Designee and she discovered that she cannot participate in any program that is paid directly or indirectly by Medicare or Medi-Cal.

4. With respect to the timeliness of her appeal, Petitioner stated:

I ignored the right to make an "Appeal" because I honestly believed it only applied to Health Care Providers. I was shocked to learn that my 'ignorance' had once again played havoc with my life. I realized the ramifications of my error when I was hired by a company that provides management services to Physicians who accept Medi-Cal and Medicare. My name popped on your list, and I was immediately terminated.

Petitioner's June 15, 2005 letter requesting a hearing.

5. Petitioner suggests in her October 12, 2005 submission that a "final notification" of her exclusion was sent on May 25, 2005, and that she properly submitted a request for hearing within 60 days of receipt of that letter. Petitioner is referring to an informational letter sent to her by Wendy A. Dawson, an Investigations Analyst with the I.G.'s Office of Investigations. Referring to an appeal, Ms. Dawson actually advised Petitioner that her ". . . . request should have been made in writing within 60 days of your receiving the original letter of exclusion . . . ."

6. Petitioner received notice of her exclusion from Medicare, Medicaid, and all other federal health care programs pursuant to section 1128(a)(1) of the Act on or about July 31, 2002. 42 C.F.R. � 1005.2(c).

7. Petitioner has failed to make a reasonable showing that she did not receive the I.G.'s notice within five days of the I.G.'s July 31, 2002 notice of exclusion. 42 C.F.R. � 1005.2(c).

8. Petitioner filed her request for hearing on June 15, 2005.

9. Petitioner's request for hearing was not filed in a timely manner. 42 C.F.R. �� 1001.2007(b) and 1005.2(c).

10. 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 her exclusion on or about July 31, 2002. 42 C.F.R. � 1005.2(c). Petitioner did not make a "reasonable showing" to rebut the presumption that she received the notice on or about that date. In order to preserve her appeal of the exclusion, Petitioner was required to file her request for a hearing not later than October 4, 2002, which is 60 days from her receipt of the notice, presumed to be five days after the date it was mailed. Id. Petitioner filed her request for a hearing on June 15, 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 her arguments as to why I should not dismiss her request for hearing for lack of timeliness, Petitioner does not contend that she did not receive the notice of exclusion. Rather, she argues that she honestly did not believe that it applied to her. While that may have been her belief, she does not even contend that she did not receive the exclusion notice. She states that she did not understand it. I cannot find her statement to be "good cause" for an untimely request for hearing because the only way around the 60-day filing requirement is to make a reasonable showing that she did not receive the notice. She has not done so.

I also note Petitioner's apparently continuous residence at the address to which the July 31, 2002 exclusion notice was mailed. This further supports my conclusion that Petitioner received the notice of exclusion on or about July 31, 2002. Because Petitioner's request for hearing was filed almost three years after her notice of exclusion and not within 60 days of receipt of the notice as required in the regulations, I have no choice but to dismiss Petitioner's 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 Lynette Mae Rohar on June 15, 2005 must be, and it is, dismissed.

Anne E. Blair

Administrative Law Judge