Richard Brian Graves, ALJ Ruling 2025-10 (HHS-CRD February 25, 2025)

DISMISSAL

Petitioner, Richard Brian Graves, requests a hearing to challenge a December 2023  Inspector General (IG) determination to exclude him from participating in Medicare, Medicaid, and all federal health care programs for a minimum period of 23 years pursuant to section 1128(a)(1) of the Social Security Act (Act).  See 42 U.S.C. § 1320a-7(a)(1).  The IG argues that, pursuant to 42 C.F.R. § 1005.2(e)(1), Petitioner’s request for hearing must be dismissed.  Because Petitioner’s hearing request is untimely, I must dismiss the request for hearing.

Background

On December 29, 2023, the IG issued a notice informing Petitioner that she was   excluding him from participation in federal programs for a minimum period of 23 years.  IG Ex. 1 at 1; see 42 U.S.C. § 1320a-7(a)(1); 42 C.F.R. § 1001.101(a).  The notice informed Petitioner that he could appeal the exclusion by filing a written request for hearing “within 60 days of receiving the [IG’s] notice of exclusion.”  IG. Ex. 1 at 4.

On October 1, 2024, the Civil Remedies Division (CRD) received correspondence from Petitioner that was dated September 5, 2024, and postmarked September 24, 2024, in which he inquired about the status of a request for hearing that he claimed he had

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submitted by mail on an unspecified date in January 2024.1  DAB E-File Docket Entry No. 2a.  In a letter dated October 4, 2024, a CRD attorney-advisor informed Petitioner of the following:

We are in receipt of your September 5, 2024 correspondence in which you requested information related to an appeal you allegedly mailed to us in January of this year.  We have searched all incoming mail received for the year and all cases in our system and we have no record of having received an appeal from you.

DAB E-File Docket Entry No. 2b.  In a response to follow-up correspondence from Petitioner dated October 9, 2024, a CRD attorney-advisor, in a letter dated October 24, 2024, informed Petitioner that he could not provide any legal advice and stated that Petitioner could submit a “signed statement requesting an appeal before an Administrative Law Judge” if he wished to appeal his exclusion.  DAB E-File Docket Entry No. 4 at 4.  The letter also stated, “The IG exclusion notice you received should contain the regulations applicable to your case including your relevant appeal rights and related requirements.”  DAB E-File Docket Entry No. 4 at 4; see IG Ex. 4 at 4 (appeal rights explaining, in part, that Petitioner had 60 days to file a request for hearing).  The letter further explained that a “copy of the procedural regulations generally applicable to IG exclusion cases” had been enclosed.  DAB E-File Docket Entry No. 4 at 4.

On January 13, 2025, the CRD received Petitioner’s request for hearing, mailed via U.S. Postal Service Priority Mail, to appeal the IG’s imposition of an exclusion.  DAB E-File Docket Entry No. 1.  Although Petitioner listed a December 22, 2024 date on his request for hearing, the postage validated imprint label affixed to the accompanying envelope lists a mailing date of January 10, 2025.  DAB E-File Docket Entry No. 1 at 2.  Petitioner included a copy of the IG’s exclusion notice dated December 29, 2023.  DAB E-File Docket Entry No. 1a.

In an order dated January 23, 2025, I acknowledged receipt of Petitioner’s request for hearing and directed him to show cause why this case should not be dismissed, stating the following:

A hearing request must be filed within 60 days after receipt of the notice of exclusion.  42 C.F.R. § 1005.2(c); see 42 C.F.R. § 1001.2002.  The regulations explicitly provide that “the date of receipt of the notice letter [is] presumed to be 5 days after the date of such notice unless there is a reasonable showing to the contrary.” 42 C.F.R. § 1005.2(c); see Kenneth Schrager, DAB No. 2366 at 4 (2011) (“A presumption of receipt such as that established at section 1005.2 reflects the well-recognized principle that

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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.”).  Pursuant to 42 C.F.R. § 1005.2(e)(1), an ALJ “will dismiss a hearing request” when “[t]he petitioner’s or the respondent’s hearing request is not filed in a timely manner.”

In his request for hearing, Petitioner claims he “made an initial request in January of 2024.”  Petitioner did not provide the specific date he purportedly “made” this hearing request or provide any evidence that he had timely requested a hearing in January 2024.  See, e.g., 42 C.F.R. § 1005.2(c) (requiring that the hearing request be sent by certified mail).

* * *

It appears that Petitioner has not filed a timely request for hearing based on 42 C.F.R. § 1005.2(c), and, if so, he has no right to a hearing.  Therefore, I am directing Petitioner to show cause for why this case should not be dismissed.

DAB E-File Docket Entry No. 2 at 1-2.

In a response dated January 27, 2025, and submitted via DAB E-File on January 28, 2025, Petitioner reported that his then-incarceration in January 2024 prevented him from sending a hearing request via certified mail.  DAB E-File Docket Entry No. 4 at 1; see 42 C.F.R. § 1005.2(c).  Petitioner again did not provide the specific date that he purportedly filed the request for hearing in January 2024, nor did he submit any evidence that he had, in fact, filed a timely request for hearing.  DAB E-File Docket Entry No. 4.  Further, although Petitioner included a copy of the CRD’s October 24, 2024 letter explaining that he could request a hearing and should reference the appeal rights provided in the IG’s exclusion notice, Petitioner did not provide an explanation for why he did not file a request for hearing until January 10, 2025, more than three months after the CRD initially informed him that it had not received a January 2024 request for hearing and well more than two months after the CRD issued the October 24, 2024 correspondence.  DAB E-File Docket Entry No. 4 at 1 (Petitioner’s response); see DAB E-File Docket Entry No. 2b (October 4, 2024 letter); DAB E-File Docket Entry No. 4 at 4 (October 24, 2024 letter).

The IG filed a reply on February 7, 2025 (DAB E-File Docket Entry No. 5), along with a copy of the December 29, 2023 exclusion notice.  IG Ex. 1.  The IG argued that Petitioner conceded that “he did receive the exclusion notice in January 2024 because, in his hearing request, he states, without evidence, that he submitted an appeal by mail in January 2024.”  IG Reply at 3.  The IG argued that Petitioner’s request for hearing

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“must” be dismissed for lack of timeliness pursuant to 42 C.F.R. § 1005.2(e)(1).  IG Reply at 1.

Discussion

An individual has 60 days from receipt of a notice of exclusion to request a hearing.  See  Act §§ 205(b), 1128(f)(1); 42 C.F.R. §§ 1001.2007(b), 1005.2(c).  The date of receipt of the IG’s notice 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).  Neither the aforementioned authorities, nor any other authority, provides a good-cause exception to an untimely filing.  If the request for hearing is untimely filed, an ALJ “will dismiss a hearing request.”  42 C.F.R. § 1005.2(e)(1); see, e.g., William Wyttenbach, M.D., DAB No. 2724 (2016) (Determination to Decline Review of ALJ Decision) (“The Board has consistently affirmed the conclusion, reached by the ALJ here, that 42 C.F.R. § 1005.2(e)(1) leaves an ALJ no discretion to decide not to dismiss an untimely hearing request since the regulation states, without any ‘good cause’ exception, that an ALJ ‘will dismiss a hearing request where . . . [t]he petitioner’s . . . hearing request is not filed in a timely manner[.]’  See, e.g., Kris Durschmidt, DAB No. 2345 (2010).”); see also 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 has not submitted documentary evidence, such as a sworn declaration or U.S. Postal Service tracking confirmation, evidencing that he timely filed a request for hearing in January 2024.  Nor has Petitioner submitted a copy of the purported January 2024 request for hearing.  Petitioner’s claims, alone, are insufficient to establish timeliness.  As the Departmental Appeals Board has explained, the regulatory requirement that a request for hearing be sent by certified mail would serve little 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.  DAB E-File Docket Entry No. 4 at 1; see 42 C.F.R. § 1005.2(c).  Nor has Petitioner established that he mailed the January 2024 request for hearing to the CRD.  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 incarceration may have made it difficult for him to assure the filing of his hearing request.  The simple fact is Petitioner has not demonstrated that he submitted a hearing request in January 2024.  Although not dispositive of this matter,

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I note that Petitioner made no effort to promptly file a hearing request even after he had been informed on October 4 and 24, 2024, that his request for hearing had not been received, that he could submit a request for hearing, and should consult the appeal rights provided by the IG.2  DAB E-File Docket Entry No. 4 at 4; see IG Ex. 1 at 4.  Yet, Petitioner did not file the instant request for hearing until January 10, 2025, more than three months after he had been informed that a request for hearing had not been received and well more than two months after the CRD told him he could file a request for hearing and should reference the appeal rights that had previously been provided.  See DAB E‑File Docket Entry No. 4 at 4.

Conclusion

The IG issued a notice of exclusion on December 29, 2023, and Petitioner claims he received the notice and filed a request for hearing on an unspecified date in January 2024.  Petitioner has not established that he timely appealed the exclusion.  I therefore dismiss the hearing request pursuant to 42 C.F.R. § 1005.2(e)(1).