Kerri Ann Gray, ALJ Ruling 2024-11 (HHS-CRD August 1, 2024)

RULING DISMISSING CASE

Petitioner, Kerri Ann Gray, was a nurse, licensed in Iowa, who worked at a care center.  She removed Hydrocodone tablets from the center’s emergency medication kit and kept them for herself.  She was caught, charged with, and pleaded guilty to obtaining a prescription drug by engaging in fraud, deceit, misrepresentation, or subterfuge, in violation of Iowa Code sections 155A.23(1)(a)(1), 155A.24(1)(a), and 124.401(1)(c)(9), a felony.

Based on her conviction, the Inspector General (IG) excluded her from participating in all federal health care programs for the minimum statutory period of five years.  On February 29, 2024, four months after the IG sent her the notice of exclusion, Petitioner appealed.  The IG moves to dismiss her appeal as untimely filed.

I agree that Petitioner’s appeal is untimely, and, for the reasons discussed below, I dismiss Petitioner’s appeal.

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Background

In a letter dated October 31, 2023, the IG advised Petitioner Gray that, based on her felony conviction, the IG was excluding her from participating in all federal health care programs, as provided for under section 1128(a)(3) of the Social Security Act (Act).  IG Ex. 1.  In a section titled “HOW TO APPEAL YOUR EXCLUSION,” the notice explained Petitioner’s appeal rights:  she could request a hearing before an administrative law judge; the “request for hearing must be made in writing within 60 days of receiving” the IG’s notice letter.  The notice also explained that the date she received the notice “is presumed to be five (5) days after the date of such notice unless there is a reasonable showing to the contrary.”  IG Ex. 1 at 3 (emphasis added).

The IG mailed the notice to Petitioner Gray at the street address on record with the Iowa district court and the Iowa Board of Nursing.  See IG Exs. 2, 3.  The IG also sent a copy of the notice to Petitioner’s post office box.  IG Ex. 1.

Petitioner did not appeal within 60 days of November 6, 2023, the presumptive date of receipt (the fifth day, November 5, 2023, was a Sunday).

Four months (or 121 days) later, on February 29, 2018, the Civil Remedies Division received an undated and unsigned appeal.  Petitioner claimed that she had not received the notice letter.  Hrg. Request.

The IG moves to dismiss Petitioner’s hearing request because it is untimely.  With her motion and memorandum in support (IG Br.), the IG submits three exhibits (IG Exs. 1-3).  Petitioner submits a short response (P. Br.).  The IG filed a reply (IG Reply).

Discussion

Petitioner’s hearing request must be dismissed pursuant to 42 C.F.R. § 1005.2(e)(1) because it was not timely filed.1

Under section 1128(a)(3) of the Act, the Secretary of Health and Human Services must exclude an individual who has been convicted under federal or state law of felony fraud, theft, embezzlement, breach of fiduciary responsibility, or other financial misconduct, in connection with the delivery of a health care item or service.  42 C.F.R. § 1001.101(c)(1).

By statute and regulation, the individual must request a hearing within 60 days after she receives notice that the IG has decided to exclude her from program participation.  Act §§ 205(b), 1128(f)(1); 42 C.F.R. § 1005.2(c).  The date of receipt is presumed to be five days after the date of the notice unless there is a reasonable showing to the contrary.  42

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C.F.R. § 1005.2(c); see 42 C.F.R. § 1001.2003(a) (referring to section 1005.2 for definition of “receipt of the notice”).  The regulations include no good-cause exceptions for untimely filing, providing that the ALJ will dismiss a hearing request that is not filed in a timely manner.  42 C.F.R. § 1005.2(e)(1); John Maiorano, R. Ph., v. Thompson, Civil Action No. 04-2279, at 6 (D. N.J. 2008); Boris Sachakov, M.D., DAB No. 2707 at 4 (2016); Kenneth Schrager, DAB No. 2366 at 3-4 (2011).

Here, Petitioner does not suggest that the addresses on the notice letter were incorrect.  Instead, in an unsigned submission, she asserts that her town is very small – about 200 people – and another person in town shares her first name – although it is spelled differently (Carrie, not Kerri).  She suggests, without saying, that the notice might have been delivered to the other Kerri/Carrie.  P. Br.

She claims that she received a copy of the notice via email on February 15, 2024.  Hrg. Request.

I agree with the IG.  Petitioner has not made the reasonable showing required to overcome the presumption that she received the notice five days after its date.  As the Departmental Appeals Board has observed, the presumption of receipt, established at section 1005.2, reflects the

well-recognized principle that it is “both reasonable and legally sound” for parties in litigation to consider certain documents sent through a regular mail system and in the course of litigation to have been received by a date certain.

Kenneth Schraeger, DAB No. 2366 at 4, quoting 57 Fed. Reg. 3298, 3320 (1992).

In determining that a petitioner’s sworn statement, by itself, cannot rebut the regulatory presumption of receipt, the Board looked to federal court decisions “addressing an analogous regulatory standard” and concluded that the rebuttable presumption “would serve little purpose” if an affidavit denying receipt were sufficient to establish that the notice was not timely received.  Id., citing McCall v. Bowen, 832 F. 2d 862, 864 (5th Cir. 1987); Pettway ex rel. Pettway v. Barnhart, 233 F. Supp.2d 1354, 1356 (S.D. Ala. 2002) (holding that a Social Security claimant’s sworn statement denying receipt did not constitute a “reasonable showing” sufficient to rebut the presumption, set forth in the regulations, that they received the Social Security determination five days after the date on the notice).

Here, Petitioner’s statement was not even signed, much less sworn to under oath.  And her explanation doesn’t make a lot of sense.  I would have to accept that the postal service twice delivered her mail to someone else because their first names sound the same, although they are not spelled the same.  Even if I considered this possible for the

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notice sent to her street address (which I do not), I find it highly unlikely that the postal service would have made the same mistake in delivering the notice addressed to Petitioner’s post office box.

Ruling

Petitioner has not made a “reasonable showing” that she did not receive the IG notice five days after October 31, 2023, the date of the notice.  I therefore have no discretion and must dismiss the hearing request pursuant to 42 C.F.R. § 1005.2(e)(1).