SUBJECT:

Clifford M. Sonnie, M.D.,

Petitioner,

The Inspector General

I. Background

By letter dated November 30, 1998 (notice letter), the Inspector General (I.G.), United States Department of Health and Human Services, notified Petitioner that he was being excluded from participation in the Medicare, Medicaid, and all federal health care programs as defined in section 1128B(f) of the Social Security Act (Act) for a period of three years. I.G. Ex. 1.⁽¹⁾ Petitioner was informed that the exclusion was imposed pursuant to section 1128(b)(3) of the Act, based on Petitioner's conviction in the State of Ohio, Cuyahoga County Court of Common Pleas, of a criminal offense related to the unlawful manufacture, distribution, prescription, or dispensing of a controlled substance.⁽²⁾

By letter dated June 26, 2000, Petitioner requested a hearing regarding his "exclusion order dated 20 December 1998."⁽³⁾ Accompanying his hearing request was a letter Petitioner had written to the I.G. dated June 6, 2000, and a June 23, 2000 response letter from the I.G.⁽⁴⁾ In his June 26, 2000 letter, Petitioner stated that when he received notification of his exclusion in December 1998, he informed his attorney to appeal and seek an adjustment of the exclusion period. Petitioner stated further that he assumed his attorney had requested an appeal, but, when he "asked for a self-query from the National Practitioners Data Base," he discovered that an appeal had never been submitted. Petitioner then asked that his exclusion period be modified.

The case was assigned to me for hearing and decision. On July 26, 2000, I conducted a telephone conference with the parties. The parties agreed that this case could be decided based on a written record.

II. Issue

The issue in this case is whether Petitioner filed his hearing request in a timely manner.

III. Findings of Fact and Conclusions of Law

1. During the period relevant to this case, Petitioner was a physician in the State of Ohio. I.G. Ex. 5.

2. On April 29, 1997, a criminal information was filed in the State of Ohio, Cuyahoga County Court of Common Pleas, charging Petitioner with three counts of drug trafficking whereby on September 18, 1995, November 22, 1995, and December 1, 1995, Petitioner "did knowingly sell or offer to sell a controlled substance, to-wit: Percocet, a Schedule II drug, being an amount less than the minimum bulk amount, said conduct not being in accordance with Chapters 3719 and 4731." I.G. Ex. 2.

3. On June 18, 1997, Petitioner entered a guilty plea to all three counts of drug trafficking. I.G. Ex. 3.

4. The court sentenced Petitioner to a suspended sentence of incarceration, two years of probation, a $2500 fine on each count, court costs, and a $200 probation supervision fee. The court stated that Petitioner's probation may terminate early upon full payment of the fines and court costs. I.G. Ex. 3.

5. By letter dated November 30, 1998, the I.G. notified Petitioner that he was being excluded from participation in Medicare, Medicaid and all federal health care programs, as defined in section 1128(B)(f) of the Act, for a period of three years, pursuant to section 1128(b)(3) of the Act, as a result of his conviction in the State of Ohio, Cuyahoga County Court of Common Pleas. I.G. Ex. 1.

6. The I.G.'s notice letter informed Petitioner that his exclusion would be effective 20 days from the date of the letter. I.G. Ex. 1. Petitioner's exclusion thus went into effect on December 20, 1998.

7. The I.G.'s notice letter stated that, if Petitioner wished to request a hearing, he had to do so, in writing, within 60 days of his [Petitioner's] receipt of the I.G.'s notice letter. 42 C.F.R. § 1005.2(c).

8. It is not disputed that the I.G.'s notice letter was sent to Petitioner via first class mail and in accordance with 42 C.F.R. § 1001.2002.

9. The I.G.'s notice letter is presumed to be received five days after the date of the notice letter, absent a reasonable showing to the contrary. 42 C.F.R. § 1005.2(c).

10. In the absence of any showing to the contrary, I presume that the I.G.'s notice letter was received by Petitioner five days after its date, on December 5, 1998.

11. Pursuant to the 60-day filing requirement, Petitioner had until on or about February 3, 1999, to file a written request for a hearing.

12. Petitioner has not denied receiving the I.G.'s notice letter.

13. By letter dated June 26, 2000, Petitioner requested a hearing regarding his "exclusion order dated 20 December 1998." Accompanying his hearing request was a letter Petitioner had written to the I.G. dated June 6, 2000 and a June 23, 2000 response letter from the I.G. In both his June 6, 2000, and June 26, 2000 letters, Petitioner stated, among other things, that he thought his attorney had appealed the exclusion, but discovered that an appeal had never been submitted.

14. The regulations mandate that an administrative law judge will dismiss a hearing request when a petitioner does not file his hearing request in a timely manner. 42 C.F.R. § 1005.2(e)(1).

15. No exceptions to the 60-day filing deadline - for "good cause" or otherwise - are set forth in the applicable regulations. 42 C.F.R. § 1005.2.

16. Petitioner did not file his hearing request until June 26, 2000, one and one-half years after the I.G.'s notice letter was sent to him.

17. Petitioner did not file a request for hearing within 60 days of his receipt of the I.G.'s notice letter, as required by 42 C.F.R. § 1005.2(c). Petitioner is therefore not entitled to a hearing in this case.

18. Because Petitioner failed to file his hearing request in a timely manner, I dismiss Petitioner's request for a hearing. 42 C.F.R. § 1005.2(e)(1).

IV. Discussion

By letter dated November 30, 1998, the I.G. notified Petitioner that he was being excluded from participation in Medicare, Medicaid, and all federal health care programs, as defined in section 1128B(f) of the Act for a period of three years. Petitioner was informed that the exclusion was imposed pursuant to section 1128(b)(3) of the Act, based on Petitioner's conviction in the State of Ohio, Cuyahoga County Court of Common Pleas, of a criminal offense related to the unlawful manufacture, distribution, prescription, or dispensing of a controlled substance. I.G. Ex. 1. Petitioner's exclusion went into effect 20 days from the date of the I.G.'s notice letter, on December 20, 1998.

It is not disputed that the I.G.'s notice letter was sent via first class mail and in accordance with 42 C.F.R. § 1001.2002. Petitioner is presumed to have received the I.G.'s notice letter five days after the date of the notice letter, unless there is a reasonable showing to the contrary. 42 C.F.R. § 1005.2(c). In the absence of any showing to the contrary, I presume that the I.G.'s notice letter was received by Petitioner five days after its date, on December 5, 1998.

The I.G.'s notice letter stated that, if Petitioner wished to request a hearing, he had to do so, in writing, within 60 days of his [Petitioner's] receipt of the I.G.'s notice letter. 42 C.F.R. § 1005.2(c). Pursuant to the 60-day filing requirement, Petitioner had until on or about February 3, 1999, to file a written request for a hearing.

By letter dated June 26, 2000, Petitioner requested a hearing regarding his "exclusion order dated 20 December 1998." See supra note 3. Accompanying his hearing request was a letter Petitioner had written to the I.G. dated June 6, 2000, and a June 23, 2000 response letter from the I.G. In both his June 6, 2000 and June 26, 2000 letters, Petitioner stated, among other things, that after he was informed of his exclusion by the I.G., he asked his attorney to submit an appeal. Petitioner stated he thought his attorney had appealed the exclusion, but discovered that an appeal had never been submitted.

Petitioner has not denied receiving the I.G.'s November 30, 1998 notice letter. In fact, in his response brief, Petitioner does not address the I.G.'s arguments regarding the untimeliness of his hearing request. Rather, Petitioner does not dispute the I.G's authority to impose penalties under the Act, but "disputes the triggering mechanism employed by the Secretary." P's response brief, at 1. Petitioner asserts that the I.G.'s treatment of him violates the Due Process Clause of the United States Constitution.⁽⁵⁾

The regulations mandate that an administrative law judge will dismiss a hearing request when a petitioner does not file his hearing request in a timely manner. 42 C.F.R. § 1005.2(e)(1). No exceptions to the 60-day filing deadline - for "good cause" or otherwise - are set forth in the applicable regulations. 42 C.F.R. § 1005.2.

Petitioner did not file his hearing request until June 26, 2000, one and one-half years after the I.G.'s notice letter was sent to him. It is evident that Petitioner did not file a request for hearing within 60 days of his receipt of the I.G.'s notice letter as required by 42 C.F.R. § 1005.2(c). Petitioner is therefore not entitled to a hearing in this case.

V. Conclusion

I conclude that Petitioner's hearing request must be dismissed on the basis that Petitioner failed to file his request for a hearing within 60 days of receipt of the I.G.'s notice letter, as required by the federal regulations governing this proceeding.

Accordingly, I DISMISS Petitioner's request for a hearing.

Joseph K. Riotto

Administrative Law Judge

1. The I.G. submitted a brief accompanied by six proposed exhibits (I.G. Ex. 1 - 6). Petitioner submitted a response brief. Petitioner did not object to my receiving into evidence the I.G.'s proposed exhibits, and I receive into evidence I.G. Ex. 1 - 6. The record also contains a set of documents comprising a total of five pages which Petitioner submitted in July 2000, unaccompanied by a cover letter. Petitioner marked these documents as exhibits, but incorrectly marked the pages. I am combining these documents as a single exhibit, and re-marking them as P. Ex. 1. The I.G. has not objected to these documents, and I admit P. Ex. 1 into evidence.

2. By letter dated July 13, 1998, the I.G. notified Petitioner of her intent to exclude Petitioner from Medicare, Medicaid, and all federal health programs, as defined in section 1128B(f) of the Act, as a result of his conviction in the State of Ohio, Cuyahoga County Court of Common Pleas. The I.G. stated that Petitioner had 30 days to provide any information for the I.G. to consider prior to making her determination. The letter concluded by stating that Petitioner would be informed of the I.G.'s decision and, if an exclusion was implemented, the effective date and length of the exclusion, and his appeal rights. I.G. Ex. 6. Petitioner has not denied receiving the I.G.'s intent-to-exclude letter.

3. In referring to an "exclusion order dated 20 December 1998," Petitioner may actually be referring to the I.G.'s November 30, 1998 notice letter. As stated in note 4 and in my findings, Petitioner's exclusion went into effect on December 20, 1998. It is possible that Petitioner has mistaken the date of the I.G.'s notice letter, and identified it by the date his exclusion went into effect. The record does not contain a December 20, 1998 order or letter from the I.G. to Petitioner.

4. In Petitioner's June 6, 2000 letter to the I.G., Petitioner stated, among other things, that he was writing in response to a letter from the I.G. dated December 20, 1998, which informed him that he had been excluded from Medicare, Medicaid and all federal health care programs for three years based on his conviction. Petitioner wrote that "[u]pon receipt of [the I.G.'s] letter [he] informed [his] attorney to respond to make inquiry concerning the exclusion." Petitioner stated further that he was under the assumption this had been done, but when he "performed a self-query from the National Practitioners Data Bank, [he] discovered that the exclusion was listed but no inquiry or appeal had been made. The purpose of this letter is to initiate it." Petitioner contended, moreover, that the three-year exclusion was excessive, and that starting the exclusion in December 1998, was arbitrary and unfair.

The I.G.'s June 23, 2000 response letter to Petitioner stated, among other things, that the I.G. had checked her records and found that on December 20, 1998, Petitioner was excluded from participation in the Medicare and federal health care programs for three years. The I.G. informed Petitioner that he could apply for reinstatement at the conclusion of the three-year period. The I.G. stated that Petitioner's notice letter had set forth his appeal rights. The I.G. advised Petitioner to contact the Civil Remedies Division, Departmental Appeals Board.

5. Because I am dismissing this case on the basis that Petitioner filed his request for a hearing untimely, I am not considering the merits of the case. I note also that Petitioner's constitutional arguments are outside the scope of my authority.