Stephen B. Mason, ALJ Ruling 2024-7 (HHS-CRD April 9, 2024)

DISMISSAL

Petitioner, Stephen B. Mason, asks review of a (now) six-year-old Inspector General (IG) determination to exclude him, for a period of ten years, from participating in Medicare, Medicaid, and all federal health care programs.  The IG based the exclusion on section 1128(a)(1) of the Social Security Act (Act).  The IG has moved to dismiss the appeal as untimely. 

I grant the IG’s motion and dismiss Petitioner’s hearing request as untimely. 

Background

In a notice letter, dated January 31, 2018, the IG advised Petitioner Mason that the IG was excluding him from program participation for a period of ten years, pursuant to section 1128(a)(1) of the Act.  P. Ex. 1 at 1.  The letter set forth Petitioner’s appeal rights:  he could request a hearing before an administrative law judge; “A request for hearing must be made in writing within 60 days of receiving the Office of Inspector General’s (OIG) notice of exclusion.”  P. Ex. 1 at 4 (emphasis added). 

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Five years and eight months later, in a letter dated September 25, 2023, and postmarked September 26, 2023, Petitioner, through counsel, indicated that his medical license had been restored and asked that the Civil Remedies Division schedule a hearing before an administrative law judge to challenge the exclusion.  The matter was treated as a request for hearing and assigned to me.  See P. Ex. 4. 

Petitioner concedes that he received the IG’s notice letter on February 5, 2018, while he was incarcerated at the Morgantown Federal Correctional Institution.  P. Ex. 3 at 2 (Mason Decl. ¶ 2).  He asserts that he had no access to a computer but drafted a letter challenging the length of the exclusion and asking for a hearing before an administrative law judge.  He provides an unsigned copy of that letter, which is dated March 25, 2018.  P. Ex. 3 at 2 (Mason Decl. ¶¶ 3, 5, 6); see P. Ex. 2; 42 C.F.R. § 1005.2(c) (requiring that the hearing request be signed).  He maintains that he deposited his letter in the prison outgoing mail receptacle.  P. Ex. 3 at 2 (Mason Decl. ¶ 6).  But see 42 C.F.R. § 1005.2(c) (requiring that the hearing request be sent by certified mail). 

Petitioner also concedes that he received no acknowledgement from the Civil Remedies Division, and, for almost six years, he made no attempt to contact this office or the IG.  He justifies his inaction by claiming that:  1) while incarcerated, he “learned from other similarly situated doctors that the process for pursing relief from Medicare exclusion was exceedingly slow”; and 2) he did not receive his medical license back until 2023.  P. Ex. 3 at 2-3 (Mason Decl. ¶¶ 7, 9). 

The IG moves to dismiss Petitioner’s hearing request because it is untimely. 

Discussion

By statute and regulation, the individual must request a hearing within 60 days after he receives notice that the IG proposes to exclude him from program participation.  Act §§ 205(b), 1128(f)(1); 42 C.F.R. §§ 1001.2007(b), 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 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); Maiorano, R.Ph., v. Thompson, Civil Action No. 04-2279, 2008 WL 304899, at *3 (D.N.J. Feb. 1, 2008); Boris Sachakov, M.D., DAB No. 2707 at 4 (2016); Kenneth Schrager, DAB No. 2366 at 3 (2011). 

Petitioner’s declaration that he filed his hearing request timely, by itself, is insufficient to establish that he did so, particularly since he concedes that he did not meet the regulatory requirement for filing (sending by certified mail).  As the Departmental Appeals Board has pointed out, the requirement that requests be sent by certified mail would serve little 

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purpose if an affidavit alone were sufficient to establish receipt or, in this case, mailing.  Schrager, DAB No. 2366 at 4-5; see Toni De Lanoy, DAB No. 3127 at 10-11 (2024) (finding insufficient, absent corroborating evidence, Petitioner’s assertion as to the date she received the notice of exclusion). 

Even assuming that Petitioner timely drafted the request for hearing, he concedes that he did not send it by certified mail, as required by regulation, and has not established that the letter ever found its way into the U.S. Mail.  See CRD Procedures at 9 (providing that “[w]ritten material is considered filed when placed in the U.S. mail or with an express delivery service, such as FedEx.”).  

I recognize that Petitioner’s situation may have made it difficult for him to assure that his hearing request was filed properly.  However, according to the March 25, 2018 letter, he was to be transferred to a “Residential Reentry Center” in October 2018.  P. Ex. 2.  As the IG suggests, at that point, he should have been able to contact the Civil Remedies Division to inquire about the status of his appeal.  Even if that had not been possible, according to the letter, in March 2018, he was “serving [his] 5^th month of an 18 month sentence . . . .”  He would therefore have been released no later than the end of April 2019.  He could then have inquired as to the status of his purported appeal.  Petitioner’s failure to ask about his purported appeal, when he was obviously in a position to do so, undercuts his claim that he thought that he had an appeal pending before the Civil Remedies Division. 

I find disingenuous Petitioner’s suggestion that he reasonably waited almost six years to contact the Civil Remedies Division.  He claims to have relied on information provided by “other similarly situated doctors that the process for pursuing relief from Medicare exclusion was exceedingly slow.”  P. Ex. 3 at 2 (Mason Decl. ¶¶ 7, 9).  Without regard to how long a matter might pend before an appeal is resolved, cases are docketed “upon receipt of a request for an ALJ hearing.”  CRD Procedures at 2 [¶ 2d].  An acknowledgment letter is sent out after the case is docketed.1   I am aware of no instance in which (in any forum – not just the Departmental Appeals Board) a party must wait years before an appeal is even acknowledged. 

Moreover, the Departmental Appeals Board’s Records Management Manual dictates that the Civil Remedies Division’s Docket Log will be maintained for four years, “cut off at 

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[the] end of [the] calendar year.”  Departmental Appeals Board, Records Management Manual at 20 ¶ 5(c).  If any case were docketed back in March or April 2018, records of that would no longer be available. 

Finally, Petitioner cites the eventual restoration of his medical license as an additional justification for his finally deciding to pursue an appeal.  Presumably, until his medical license was restored, he had no incentive to investigate the status of his purported appeal.  Having one’s medical license restored is not a basis for extending the appeal deadline.  Schrager, DAB No. 2366 at 5-6.  

Conclusion

The IG issued a notice of exclusion on January 31, 2018.  Petitioner Mason received the notice five days later, on February 5, 2018.  Five years and eight months later, in a letter dated September 25, 2023, Petitioner inquired, for the first time, about the status of an appeal he claims to have filed.  He has not established that he timely appealed the exclusion.  I therefore dismiss his hearing request pursuant to 42 C.F.R. § 1005.2(e)(1).