Ingrid Gordon-Patterson, 2025-4 (HHS-CRD November 12, 2024)

DISMISSAL

Petitioner, Ingrid Gordon-Patterson, requested a hearing to contest the Inspector General’s (IG’s) determination to exclude her from participation in Medicare, Medicaid, and all federal health care programs under section 1128(a)(4) of the Social Security Act.  The IG moves to dismiss the appeal as untimely filed.  I agree and dismiss Petitioner’s appeal. 

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

In a letter dated June 30, 2017, the IG advised Petitioner that she was excluded from participation in Medicare, Medicaid, and all federal health care programs for 18 years.  IG Exhibit (Ex.) 1.  The IG stated that Petitioner was excluded because of her felony conviction in the Suffolk County Court of the State of New York of a criminal offense related to the unlawful manufacture, distribution, prescription, or dispensing of a controlled substance as defined under Federal or State Law.  Id. at 1.  

In a letter dated August 1, 2023, and received by the Civil Remedies Division of the Departmental Appeals Board on August 25, 2023, Petitioner requested a 

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hearing.  Petitioner (P.) Request for Hearing (RFH).  The case was assigned to Administrative Law Judge Jacinta L. Alves, who held a prehearing conference with the parties on October 19, 2023, the substance of which is summarized in an Order Following Prehearing Conference and Setting Schedule for Submissions, dated October 23, 2023 (Order). 

On November 6, 2023, Petitioner submitted a filing, which she describes as an Answer.  P. Answer.  In pertinent part, Petitioner states that she did not receive the exclusion notice while incarcerated in 2017.  Id. at 2.  On November 29, 2023, the IG filed a motion to dismiss, accompanied by eight exhibits (IG Exs. 1-8).  The IG stated that it did not intend to cross-examine Petitioner on the timeliness of her hearing request because her filing did not include a sworn declaration and did not constitute a reasonable showing to rebut the presumption of delivery.  Motion to Dismiss at 2 n.2.  Petitioner did not file a response. 

On October 25, 2024, this case was reassigned to me.  I find briefing on the issue of the timeliness of Petitioner’s request for hearing to be complete and an oral hearing to be unnecessary.  See Order at 2; Lena Lasher, DAB No. 2800 at 4 (2017) (discussing that when neither party submits written direct testimony as directed, “no purpose would be served by holding an in-person hearing . . . .”), aff’d, Lasher v. Dep’t of Health & Human Servs., 369 F. Supp. 3d 243 (D.D.C. 2019).  

The regulations governing these proceedings grant me virtually no discretion.  An individual must request a hearing within 60 days after receiving notice of the exclusion.  42 C.F.R. § 1001.2007(b).  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).  The regulations do not include a “good cause” exception for untimely filing; they provide that the administrative law judge 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, 2008 WL 304899, at *3 (D.N.J. 2008); Kenneth Schrager, DAB No. 2366 at 3 (2011). 

In accordance with 42 C.F.R. § 1005.2(c), I presume that Petitioner received the notice letter on Wednesday, July 5, 2017.  Petitioner’s hearing request was due no later than sixty days thereafter, i.e., by September 3, 2017, which falls to the next business day or September 5, 2017.  42 C.F.R. § 1005.12(a).  Petitioner filed her hearing request almost six years after this deadline.  P. RFH. 

Petitioner may rebut the regulatory presumption by making a “reasonable showing” that she received the notice more than five days after the date of the notice.  42 C.F.R. § 1005.2(c).  Petitioner states that she was an inmate at the Bedford Hills Correctional Facility at the time the exclusion notice was issued, and she had not received any correspondence to that effect at that time.  P. Answer at 2.  Instead, Petitioner asserts that 

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she only learned of the issue when a position she was offered was rescinded due to her exclusion from Medicaid.  Id. 

Petitioner provides no other context or explanation, or evidence that supports her assertion.  Id.; see also P. RFH.  In fact, as the IG notes, Petitioner fails to even include a sworn declaration attesting to the statements in her filing, despite being specifically instructed to do so.  ALJ Alves informed Petitioner, “[a]ny declarations (written statements) from Petitioner . . . that support Petitioner’s assertion that she did not receive the IG’s Exclusion Notice prior to or while incarcerated must be signed under penalty of perjury.”  Order at 2.  The Order goes on to explicitly state the declaration must include the following statement, “I declare (or certify, verify, or state) under penalty of perjury that the foregoing is true correct. Executed on (date).  (Signature)”.  Id. 

Even if I were to construe Petitioner’s representations in her Answer as proffers of testimony, I would not conclude that she has made a reasonable showing that she did not receive the notice of exclusion on or about July 5, 2017.  As the 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 legal documents sent through a regular mail system and in the course of litigation to have been received by a date certain.”  Schrager, 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.  Indeed, in Schrager, the presumption of receipt survived despite an address error in the IG’s exclusion notice.  In that case, the exclusion notice was addressed using the Petitioner’s correct name and inmate number and was directed to the Facility using the correct city, state, and zip code, but the wrong P.O. Box.  Id. at 5.  The ALJ inferred that the notice was nevertheless timely delivered to the Petitioner despite the P.O. Box error based on the evidence submitted by the IG, which consisted of a declaration of the Director of the Exclusions Staff for the IG Office of Investigations confirming the exclusion notice was sent in the ordinary course of IG business and was not returned.  Id. at 3, 5.  The Board found no error in the ALJ’s inference and sustained the ALJ’s determination that Petitioner did not make a reasonable showing that he did not timely receive the exclusion notice.  Id. at 5. 

Here, the presumption of receipt is even stronger than in Schrager.  The exclusion notice in this case is correctly addressed and, as was the case in Schrager, the IG has provided written testimony that the notice letter was sent in the ordinary course of business and not returned to the IG’s office as undeliverable.  IG Ex. 7 at ¶¶ 2-3, 6 (Declaration of Joann Francis, reviewing official for the Office of IG).  In addition, the IG has provided credible 

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evidence that the Petitioner received mail at the same address around the same time that the exclusion notice was delivered.  IG Ex. 8 at 2 (certified mail receipt showing delivery to Petitioner at the same address listed on exclusion notice).  Therefore, I find Petitioner has not made a reasonable showing to rebut the presumption that she received the notice letter on or about July 5, 2017. 

Finally, 42 C.F.R. § 1005.2(e)(1) does not permit me to accept a late filing, even upon a showing of good cause.  Accordingly, to the extent Petitioner provides equitable bases as to why she should not be excluded from Medicaid and other Federal programs, I am unable to consider these arguments. 

For the reasons explained above, I find that Petitioner did not file her hearing request within 60 days after receipt of the notice of exclusion.  I therefore dismiss Petitioner’s hearing request pursuant to 42 C.F.R. § 1005.2(e)(1). 

Service by DAB E-File:

Ingrid Gordon-Patterson, Petitioner

igordonpatterson@osborneny.org

Ellen E. Slavin, Counsel for CMS

ellen.slavin@oig.hhs.gov

Notice

If Petitioner wishes to appeal this dismissal, the Departmental Appeals Board has, in the past, reviewed ALJ dismissals in exclusion cases.  See e.g., Ishtiaq A. Malik, M.D., DAB No. 2962 (2019).  The regulations require an appeal to be filed within 30 days of the date of service of this dismissal.  See 42 C.F.R. § 1005.21(a), (d).  For more details, Petitioner may want to review the Appellate Division’s Guidelines for appellate review found on the Departmental Appeals Board’s website at https://www.hhs.gov/about/agencies/dab/different-appeals-at-dab/appeals-to-board/guidelines/index.html.