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CASE | DECISION | JUDGE

Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD
Civil Remedies Division
IN THE CASE OF  


SUBJECT:

Mark K. Mileski,


Petitioner,

DATE: May 11, 2004
                                          
             - v -

 

The Inspector General

 

Docket No.C-04-123
Decision No. CR1174
DECISION
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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 for that reason I GRANT the I.G.'s Motion to Dismiss.

PROCEDURAL BACKGROUND

Mark K. Mileski, the Petitioner pro se in this case, was convicted in the 213th District Court for Tarrant County, Texas, on felony charges based on the unlawful manufacture, distribution, prescription, or dispensing of a controlled substance. The exact date of Petitioner's conviction does not appear in this record, but other dates which are available suggest that it was sometime prior to October 2002. Prior to his conviction, Petitioner was a registered pharmacist practicing in Texas.

As required by the terms of section 1128(a)(4) of the Social Security Act (Act), 42 U.S.C. 1320a-7(a)(4), the I.G. began the process of excluding Petitioner from participation in Medicare, Medicaid, and all other federal health care programs. The Act establishes a minimum mandatory term of exclusion of not less than five years. Section 1128(c)(3)(B) of the Act; 42 U.S.C. 1320a-7(c)(3)(B). The Act permits the I.G. to enlarge the period of exclusion if certain aggravating factors are shown.

On October 9, 2002, the I.G. notified Petitioner of her intent to invoke the exclusion process, and solicited from him any information he might wish the I.G. to consider on the issue of the exclusion's term. This record does not establish whether Petitioner responded to this first letter, although Petitioner's Request for Hearing asserts that he did. On December 31, 2002, the I.G. notified Petitioner that he was to be excluded from all Medicare, Medicaid, and all other federal health care programs for the minimum mandatory period of five years; no enlargement of the exclusion term beyond its mandatory minimum length was proposed or attempted.

Petitioner's Request for Hearing was filed pro se in a letter dated December 19, 2003. On or about January 15, 2004, the I.G. filed a Motion to Dismiss Petitioner's Request for Hearing based on its asserted untimeliness. I convened a conference by telephone on February 3, 2004, during which conference the timeliness of Petitioner's Request for Hearing was briefly discussed. The I.G. repeated her intention to rely on the terms of 42 C.F.R. 1002.2007(b), 1005.2(c), and 1005.2(3)(1) and seek the dismissal of the Request for Hearing as untimely. I established a briefing schedule by which the parties could submit their positions and exhibits. That cycle of briefing has now closed.

The Petitioner has proffered one exhibit entitled "Petitioner's Declaration" and although undated, it was submitted an as attachment to Petitioner's March 1, 2004, response. I have marked this submission as Petitioner's Exhibit (P. Ex.) 1 and I have admitted it under that designation. The I.G. has proffered two exhibits. I.G. Exhibit (I.G. Ex.) 1 is the I.G.'s letter of October 9, 2002, and it is admitted. The I.G.'s notice letter of December 31, 2002 was attached to the Motion to Dismiss as Attachment 1. In order to maintain a complete record consistent in format with Civil Remedies Division Procedures, I have renumbered this letter as I.G. Ex. 2 and have admitted it under that designation.

ISSUE

The legal 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).

This issue must be resolved against Petitioner. His Request for Hearing was filed untimely, 41 weeks past the deadline established by regulation. Petitioner's argument that he did not receive the I.G.'s notice letter until December 9, 2003, is unavailing here in the face of settled precedent establishing a strong presumption of its receipt in due course, and in the absence of any evidence to support a reasonable showing to the contrary. In the absence of such a showing, 42 C.F.R. 1005.2(e)(1) requires that the Request for Hearing be dismissed.

CONTROLLING STATUTES AND REGULATIONS

Section 1128(a)(4) of the Act, 42 U.S.C. 1320a-7(a)(4), 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 consisting of a felony relating to the unlawful manufacture, distribution, prescription, or dispensing of a controlled substance. 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; 42 U.S.C. 1320a-7(c)(3)(B).

The Office of Inspector General is charged with effecting exclusions based on sections 1128(a)(4) 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 intent to exclude the affected individual or entity; the affected party is permitted to respond to this notice of intent with documentary evidence and written argument concerning whether the exclusion is warranted and any related issues. 42 C.F.R. 1001.2001.

If the I.G. remains convinced that exclusion is mandated, she must send written notice of her final decision to exclude to the affected individual or entity, and must in that notice provide detailed information on a number of points, including the appeal rights of the excluded party. 42 C.F.R. 1001.2002. See also section 1128(c) of the Act; 42 U.S.C. 1320a-7(c).

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 limits on the issues that may be considered on appeal and establishes requirements for 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 through 1005.23. The 60-day deadline is found at 42 C.F.R. 1005.2(c):

The request for hearing will be made in writing to the DAB [Departmental Appeals Board]; 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.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

I find and conclude that:

1. At all relevant times, Petitioner's mailing address was 1010 Hackberry Court, Carrolton, Texas, 75007-1116. Petitioner's Request for Hearing, at 1; P. Ex. 1; I.G. Exs. 1, 2.

2. The I.G. mailed notice of the proposed exclusion of Petitioner Mark K. Mileski from Medicare, Medicaid, and all other federal health care programs pursuant to section 1128(a)(4) of the Act to Petitioner's mailing address on December 31, 2002. I.G. Ex. 2.

3. Petitioner received the I.G.'s notice of his exclusion from Medicare, Medicaid, and all other federal health care programs pursuant to section 1128(a)(4) of the Act not later than January 5, 2003. I.G. Ex. 2; 42 C.F.R. 1005.2(c).

4. Petitioner has failed to make a reasonable showing that he did not receive the I.G.'s notice on or before January 5, 2003. 42 C.F.R. 1005.2(c).

5. Petitioner filed his Request for Hearing on December 9, 2003. Petitioner's Request for Hearing, at 1.

6. Petitioner's Request for Hearing was not timely filed. 42 C.F.R. 1001.2007(b) and 1005.2(c).

7. 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 relies on four settled principles recognized unanimously in this forum. The first is the principle creating a strong presumption in favor of the regular and timely delivery of exclusion notices sent pursuant to 42 C.F.R. 1001.2002.

This first principle is established by regulation and is supported by the explicit endorsement of the Departmental Appeals Board (Board.)

The second principle is the precedent established rule that "a reasonable showing to the contrary" of that presumption can be made only through demonstration of articulated facts calling the presumed delivery of the notice directly into question, and not by mere speculation or self-serving denials of receipt.

The third principle, promulgated by regulation and repeatedly acknowledged by decision, is that the administrative law judge is utterly without jurisdiction to consider an untimely-filed hearing request, because the administrative law judge does not have the authority to extend the filing deadline and cannot entertain a showing of good cause for late filing.

The fourth principle is the distillation of the first three, and may be summarized in concrete terms thus: if it is to be timely, the filing of a hearing request pursuant to 42 C.F.R. 1001.2007 must occur not more than 65 days after the date of the notice letter to which it responds, and the only relief available from that time limit demands a reasonable showing that the notice letter was not timely received.

The I.G. sent notice of Petitioner's exclusion to him in a letter dated December 31, 2002. I.G. Ex. 2. The address to which the I.G.'s letter was sent was 1010 Hackberry Court, Carrolton, Texas, 75007-1116, the same address employed by Petitioner in the instant litigation as his current mailing address, the same return address he provided in his December 19, 2003 Request for Hearing, and the same address to which the I.G.'s preliminary exclusion correspondence was sent on October 9, 2002. I.G. Ex. 1.

The mailing of the I.G.'s notice letter on December 31, 2002, is fundamentally a "self-proving" event. Petitioner's argument that no certified mailing, or similar proof of mailing such as is often required in other litigation contexts is unpersuasive. An identical argument was explicitly considered and rejected in George P. Rowell, M.D., DAB CR974 (2002) and Ronald J. Crisp, M.D., DAB CR724 (2002).

There is no suggestion that either of the I.G.'s letters was returned as undelivered or undeliverable, and the fact that the Hackberry Court address remains a valid one dispels any concern that it might be inaccurate or erroneous. The presumption established by 42 C.F.R. 1005.2(c), by which Petitioner's receipt of the notice letter is presumed to have occurred not later than five days after its December 31, 2002 date, establishes January 5, 2003 as the latest date from which the 60-day filing period could be calculated. This presumption of receipt has been specifically endorsed by the Board in Sharon R. Anderson, D.P.M., DAB No. 1795 (2001).

Since there is no proof of a delivery date earlier than January 5, 2003, that date marks the commencing of the 60-day period. In the absence of some showing to rebut the regulatory presumption of receipt not later than January 5, 2003, the 60-day period for filing Petitioner's request for hearing expired on or about March 5, 2003.

The regulations and the unvarying decisions of this forum deny an administrative law judge the authority to extend the filing period once it has begun to run. Section 1005.2(e)(1) of 42 C.F.R. is a deliberate and unique withholding from the administrative law judge of any authority to consider any facts which might constitute good cause for late filing. Dulal Bhattacharjee, M.D. DAB CR1107 (2003); 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).

The result of this deliberate and unique withholding of authority is a rule of clarity and rigor: a tardy or dilatory petitioner can gain relief from the 60-day deadline only by negating the presumption of receipt through a "reasonable showing to the contrary."

Expressed in blunt and concrete terms, the rule is this: the only relief available from the 60-day period is through a reasonable showing that the period never began to run because receipt of the notice letter did not occur as presumed. That is precisely what Petitioner pro se has attempted to show in this case.

There are instances where the "reasonable showing to the contrary" has been successfully undertaken: in Mira Tomasevic, M.D., DAB CR17 (1989), it amounted to a convincing factual demonstration that the petitioner had not, for a considerable period, resided at the address to which the notice letter was mailed. In Sean M. Maguire, M.D., DAB CR837 (2001), a similar factual showing that the notice letter's address was not the petitioner's mailing address at the relevant time was successful.

The effect of a reasonable showing of defect in the address to which the I.G.'s notice letter was sent was underscored in Jerold Morgan, M.D., DAB CR768 (2001); although the result in that case did not depend on such a reasonable showing, the administrative law judge declared herself prepared to hold, consistent with Tomasevic, supra, and Maguire, supra, that the presumption of timely delivery had been rebutted by evidence that the notice letter was sent to an address no longer used by the petitioner.

Other cases offer guidance without actually 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, supra.

Significantly, however, the cases illustrating what does not constitute a "reasonable showing" are just as instructive, and those cases are controlling on the facts of this appeal. Mere assertions of non-receipt are insufficient even if given under oath, Sunil R. Lahiri, M.D., DAB CR296 (1993), and so are speculative assertions of irregularities or delays in the delivery of mail, George P. Rowell, M.D., DAB CR974 (2002); Peter D. Farr, M.D., supra.

Even a petitioner's assertion that he had been out of the country entirely during the relevant period fell short of a "reasonable showing" when he failed to substantiate the asserted absence, Dulal Bhattacharjee, M.D., DAB CR1107 (2003).

In this case, Petitioner has submitted his Declaration denying receipt of the I.G.'s December 31, 2002 letter until December 9, 2003. P. Ex 1. Nothing else of probative value or of potential probative worth appears or is adumbrated in the Declaration.

Although the Declaration was not given before an official authorized to administer oaths, for purposes of discussion I accord it here the same weight to which it would be entitled if it had been submitted in true affidavit form.

The insufficiency of P. Ex. 1 lies not in its form but in the poverty of its content. Petitioner's Declaration simply offers nothing beyond what was rejected in Sunlil R. Lahari, supra, and George P. Rowell, supra, as "self-serving and . . . not enough to rebut the evidence that the Notice was received . . . in the ordinary course of business." Its unsupported denial of receipt is inherently unreliable, and given the circumstances set out in Finding 1, extrinsically incredible.

Petitioner's Request for Hearing, filed on December 19, 2003, was untimely. The terms of 42 C.F.R. 1005.2(c) establish the presumptive date of Petitioner's receipt of the I.G.'s December 31, 2002 notice letter as not later than January 5, 2003. 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 March 5, 2003. 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).

CONCLUSION

For the reasons set forth above, I grant the Inspector General's Motion to Dismiss. The Request for Hearing filed by Petitioner Mark K. Mileski on December 19, 2003 must be, and is, DISMISSED.

JUDGE
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Richard J. Smith

Administrative Law Judge

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