Latosha L. Campbell, ALJ Ruling 2023-1 (HHS CRD October 25, 2022)

RULING GRANTING THE INSPECTOR GENERAL’S MOTION TO DISMISS PETITIONER’S REQUEST FOR HEARING

Petitioner, Latosha L. Campbell, requested a hearing to contest the determination by the Inspector General (IG) to exclude her from participation in federal health care programs under section 1128(a)(1) of the Social Security Act (Act).  The IG has moved to dismiss this case arguing that the appeal is untimely.  For the reasons explained below, the IG’s motion to dismiss is granted and Petitioner’s request for hearing is dismissed.  

I.   Background

By notice letter dated May 28, 2021, the IG informed Petitioner that she was being excluded from participation in Medicare, Medicaid, and all Federal health care programs for the minimum statutory period of five years.  The IG stated that an exclusion was being imposed due to Petitioner’s conviction “of a criminal offense related to the delivery of an item or service under the Medicare or a State health care program,” in the Justice Court, Las Vegas Township, Clark County, Nevada.  IG Exhibit (Ex.) 3. 

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On April 11, 2022, the Civil Remedies Division (CRD) received Petitioner’s request for a hearing, which was postmarked April 5, 2022.  Pursuant to 42 C.F.R. § 1005.11(a)(4), documents are considered filed on the date of mailing.  Therefore, Petitioner’s hearing request was filed on April 5, 2022. 

On April 21, 2022, the CRD issued a letter, at my direction, acknowledging receipt of Petitioner’s hearing request.  The letter notified the parties that a telephone prehearing conference was scheduled for May 10, 2022, at 1:00 pm EST.  On the date of the prehearing conference, Petitioner appeared pro se.  Counsel for the IG failed to appear.  Attempts to reach the IG’s counsel via telephone and email were unsuccessful.  Petitioner requested that I dismiss the case for the IG’s failure to appear.  

An Order to Show Cause was issued on May 10, 2022.  On May 11, 2022, the IG submitted a response in satisfaction of the show cause order.  Petitioner’s motion to dismiss was denied and a prehearing conference was scheduled for June 21, 2022.  At the prehearing conference, the IG noted that Petitioner’s hearing request was untimely filed and requested leave to file a motion to dismiss. 

On July 21, 2022, the IG filed a Motion to Dismiss (IG MTD) for Failure to Timely File an Appeal along with 6 exhibits (IG Exs. 1-6).  Petitioner filed a response to the IG’s motion on August 25, 2022 (P. Resp.). 

II.   Legal Authorities

An individual excluded under section 1128(a)(1) of the Act is entitled to reasonable notice and an opportunity for a hearing.  42 U.S.C. § 1320a-7(f)(1); 42 C.F.R. §§ 1001.2002, 1001.2007(b).  An individual may appeal an exclusion if the individual files a written request for hearing within 60 days of receiving the IG’s notice of exclusion.  42 C.F.R. §§ 1005.2(c), 1001.2007(b).  An individual is presumed to have received the IG’s exclusion notice within five days (excluding weekends and Federal holidays) from the date it was mailed, unless the individual can make a reasonable showing to the contrary.  42 C.F.R. §§ 1005.2(c), 1005.12(b).  The regulations do not include a good-cause exception for untimely filing and require an ALJ to dismiss a hearing request that is not filed in a timely manner.  See 42 C.F.R. § 1005.2(e)(1); Maiorano v. Thompson, Civil Action No. 04-2279, 2008 WL 304899, at *3 (D.N.J. Feb. 1, 2008). 

III.   Petitioner’s Request for Hearing is Untimely

On May 28, 2021, the IG notified Petitioner that she was being excluded from participating in Medicare, Medicaid, and all other Federal health care programs for five years, pursuant to section 1128(a)(1) of the Act.  IG Ex. 3.  The exclusion notice advised Petitioner of her appeal rights, explaining that Petitioner had 60 days to file a written

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request for hearing before an administrative law judge (ALJ).  IG Ex. 3 at 4; see 42 C.F.R. § 1001.2002(c)(6).  

The IG argues that Petitioner’s deadline to file a hearing request was August 6, 2021, 60 days after the June 7, 2021 presumptive notice date.  It is undisputed that Petitioner did not submit her hearing request until April 5, 2022.  MTD at 3.  Petitioner argues that good cause exists for her untimely filing, because she experienced periods of homelessness along with the death of her mother.  P. Resp. at 2.  Petitioner argues that her circumstances are grounds for good cause under 42 C.F.R. § 478.22(b).  Id.  However, Petitioner’s argument is without merit. 

On March 30, 2021, the IG issued a “Notice of Intent” to inform Petitioner of the intent to exclude her from federal health care programs.  IG Ex. 1.  The notice of intent was mailed to four addresses associated with Petitioner.1  IG Ex. 1.  Petitioner responded to that notice on April 19, 2021.  IG Ex. 2.  By letter dated May 28, 2021, the IG informed Petitioner of the exclusion action.  IG Ex. 3.  The May 28, 2021 letter was mailed to the same four addresses as the Notice of Intent.  IG Ex. 3.  The letter sent to 1712 Valley Drive, Las Vegas, Nevada 89108 was the only letter returned as undeliverable.  IG Ex. 5. 

Based on the regulations, I presume that Petitioner received the notice of exclusion by June 7, 2021, five days after the May 28, 2021 notice letter was mailed, excluding the weekend and a federal holiday.  Petitioner’s hearing request was required to be filed within 60 days, by August 6, 2021.  Petitioner did not submit a hearing request until April 5, 2022, almost eight months after the filing deadline. 

Once the untimeliness of the hearing request is established, the only manner in which a petitioner can overcome a motion to dismiss is to make a “reasonable showing” to rebut the presumption of receipt of the notice.  Kenneth Schrager, DAB No. 2366 at 3 (2011).  The presumption of receipt may be rebutted when a petitioner’s statement denying receipt is accompanied by sufficient explanation and corroborating evidence.  Id. 

Here, there is no dispute as to whether the notice of exclusion was delivered to Petitioner’s addresses within five days of mailing, or by June 7, 2021.  Furthermore, Petitioner does not dispute that she received the March 30, 2021 letter from the IG, which was addressed to 1248 Lawry Avenue, Las Vegas, Nevada 89106 and transferred to Petitioner’s deliverable address; P.O. Box 270273, Las Vegas, Nevada 89127.  Petitioner does not address whether she received the May 28, 2021 letter, but she argues that there was good cause for the delayed hearing request.  Unfortunately, Petitioner suffered the

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loss of her mother and struggled with homelessness.  While I sympathize with Petitioner, she has not provided sufficient evidence to rebut the presumption of notice.  Petitioner incorrectly cites 42 C.F.R. § 478.22(b)(8)(ii) to support her position for a good cause exception, but this provision applies to Utilization and Quality Control Improvement Organization reconsiderations and appeals.  Here, Petitioner is seeking a request for hearing with respect to an IG exclusion, which is regulated by 42 C.F.R. § 1005.  The applicable regulations provide that an ALJ will dismiss a hearing request where the “petitioner’s . . . hearing request is not filed in a timely manner.”  42 C.F.R. § 1005.2(e)(1). 

Accordingly, the IG’s motion to dismiss is GRANTED, and Petitioner’s request for hearing is dismissed.