SUBJECT:

Robert D. Powers, D.C.,

Petitioner,

The Inspector General.

DECISION DISMISSING REQUEST FOR HEARING

I dismiss the hearing request of Petitioner, Robert D. Powers, D.C., because it was not timely filed.

I. Background and undisputed facts

The facts that I recite in this section are not disputed. On August 30, 2003, the Inspector General (I.G.) sent a notice to Petitioner, advising him that he was being excluded from participating in Medicare and other federally funded health care programs, including State Medicaid programs, for a period of five years. The asserted basis for the exclusion was that Petitioner had been convicted of a criminal offense related to fraud, theft, embezzlement, breach of fiduciary responsibility, or other financial misconduct in connection with the delivery of a health care item or service or any act or omission in a health care program operated or financed by any federal, State, or local government agency. I.G. Ex. 1, at 1. ⁽¹⁾ The I.G. cited section 1128(a)(3) of the Social Security Act as statutory authority for the exclusion determination.

The I.G.'s exclusion notice advised Petitioner additionally that he had a right to request a hearing to challenge the exclusion determination. Specifically, it told Petitioner that:

You may request a hearing before an administrative law judge . . . Such a request must be made in writing within 60 days of your receiving the . . . (I.G.'s) letter of exclusion . . . .

I.G. Ex. 1, at 2 (emphasis added).

However, Petitioner did not file a hearing request until May 2005, almost two years after he received the I.G.'s exclusion notice. I.G. Ex. 2.

II. Issue, findings of fact and conclusions of law

A. Issue

The issue in this case is whether I must dismiss Petitioner's hearing request.

B. Findings of fact and conclusions of law

I make findings of fact and conclusions of law (Findings) to support my decision in this case. I set forth each Finding below as a separate heading. I discuss each Finding in detail.

1. I must dismiss a hearing request that is not filed timely.

An individual who is excluded by the I.G. is entitled to a hearing if he or she files a written hearing request within 60 days from the date he or she receives the I.G.'s notice of exclusion. 42 C.F.R. §§ 1001.2007(b); 1005.102(c). The regulations presume that a notice sent by the I.G. will be received within five days from the mailing date. 42 C.F.R. § 1005.102(c). Consequently, an excluded individual generally has 65 days from the mailing date of an exclusion notice to file a written hearing request.

The regulations provide also that an administrative law judge "will dismiss" a hearing request in the circumstance where the hearing request is not filed timely. 42 C.F.R. § 1005.102(e)(1). I read the regulation's phrase "will dismiss" as mandating the dismissal of any request that is untimely. In other words, I have no discretion to excuse a party on equitable grounds from filing his or her request untimely, no matter how compelling the party's reasons for not filing timely.

2. I must dismiss Petitioner's hearing request because he did not file it timely.

I must dismiss Petitioner's hearing request because he does not deny that he filed it untimely. P. Ex. 1. He explains his failure to file the request timely by asserting that he was not aware, at the time that he received the I.G.'s notice, of the potential impact that the exclusion would have on his future practice and employment. That is an equitable argument which I have no authority to hear and decide.

Steven T. Kessel

Administrative Law Judge

1. The I.G. submitted five exhibits (I.G. Ex. 1 - I.G. Ex. 5) in support of his motion to dismiss. On January 17, 2006 Petitioner submitted a written response to the motion. For purposes of maintaining a record in this case I am receiving I.G. Ex. 1 - I.G. Ex. 5. I am designating Petitioner's response as P. Ex. 1 and I receive it also.