Richard Terry Kinnaman, ALJ Ruling 2026-13 (HHS CRD March 16, 2026)

DISMISSAL

I dismiss the hearing request filed by Petitioner, Richard Terry Kinnaman, because it is untimely.

I.  Procedural History and Background

In a June 30, 2025 notice, the Inspector General (IG) of the Department of Health and Human Services (HHS) informed Petitioner that, effective 20 days from the date on the notice, he would be excluded under 42 U.S.C. § 1320a-7(b)(4) from participating in all federal health care programs.  IG Ex. 1 at 1.  The IG alleged that Petitioner's Tennessee license as an alcohol and drug abuse counselor was revoked, suspended, or otherwise lost, or was surrendered while a formal disciplinary proceeding was pending, for reasons bearing on Petitioner's competence, professional performance, or financial integrity.  IG Ex. 1 at 1.  The IG noted that Petitioner would be eligible for reinstatement if he regained his Tennessee license, obtained a health care license in any state, or served a minimum of three years of the exclusion.  IG Ex. 1 at 1.  The IG advised Petitioner that he had 60 days from receiving the notice to request a hearing to appeal the exclusion, and receipt of the exclusion notice is presumed to be five days after the date on the notice unless Petitioner could make a reasonable showing to the contrary.  IG Ex. 1 at 3.

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On December 30, 2025, Petitioner requested a hearing to dispute the exclusion and attached a document from HHS's National Practitioner Data Bank, indicating that the IG excluded him effective July 20, 2025.  Electronic Filing System (E-File) Doc. Nos. 1, 1a.  Petitioner did not attach a copy of the June 30, 2025 exclusion notice; however, the IG then filed a copy of that notice.  On January 14, 2026, the Civil Remedies Division (CRD) acknowledged receipt of the hearing request, informed the parties I would hold a telephone prehearing conference, and issued my Standing Order.

On February 5, 2026, I held a prehearing telephone conference in this case.  At the conference, I noted that the exclusion notice was dated June 30, 2025, but Petitioner filed his hearing request on December 30, 2025, making the hearing request presumptively late.  February 5, 2026 Order Following Prehearing Conference and Setting Schedule for Submission of Filings (Feb. 6 Order) at 1-2.  After asking the parties about the service of the exclusion notice, Petitioner indicated that he did not receive the exclusion notice, but after learning of the exclusion from another source, he obtained a report from the National Practitioner Data Bank showing that he was excluded.  Feb. 6 Order at 2.  Because the IG disputed the timeliness of the hearing request, I ordered the parties to file statements and evidence concerning the service and receipt of the exclusion notice in this matter, noting that the parties could submit written statements from witnesses (including Petitioner) but that the statements must be in the form of an affidavit or as declarations signed under penalty of perjury (Standing Order ¶ 11; 28 U.S.C. § 1746).  Feb. 6 Order at 2.  I directed the IG to file first followed by Petitioner.  Feb. 6 Order at 2.

On February 6, 2026, Petitioner emailed a statement with several attached documents to CRD.  E-File Doc. Nos. 6, 8-8h.  On February 9, 2026, CRD informed Petitioner that he needed to file his statement and documents in the proper manner and the filing must be made after the IG filed a statement and documents.  E-File Doc. No. 6.  CRD stated:

I note that you affirmed the truth of the statements you made in your email.  Please note that when you upload your statement, under 28 U.S.C. § 1746(2), you have to sign the statement, state the date it was signed (i.e., executed), and state: "I declare under penalty of perjury that the foregoing is true and correct."

E-File Doc. No. 6.

On February 19, 2026, the IG moved for dismissal and filed five exhibits (IG Exs. 1-5).  Petitioner did not respond.  On March 10, 2026, at my direction, CRD uploaded Petitioner's February 6, 2025 email and attachments.  E-File Doc. Nos. 8-8h.  The IG filed notice that the IG would not reply to Petitioner's filings.  E-File Doc. No. 9.  Petitioner emailed CRD concerning this matter and CRD responded.  E-File Doc. No. 10.

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II.  Issue

Whether Petitioner's hearing request was filed untimely (i.e., more than 60 days after receiving the exclusion notice).

III.  Evidence

To decide the issue in this case, I consider the IG's marked exhibits.  Although improperly filed, I also consider the documents that Petitioner emailed to CRD on February 6, 2026.  I do so because Petitioner is representing himself, is not a lawyer, and expressed confusion over the filing requirements established at the prehearing conference.  E-File Doc. No. 10.

IV.  Factual Findings

1. On January 1, 2017, the Tennessee Department of Health (TN DOH), Board of Licensed Alcohol and Drug Abuse Counselors (TN Board) licensed Petitioner as an alcohol and drug abuse counselor.  IG Ex. 3 at 3; E-File Doc. No. 8c at 2.
2. Starting in June 2022, TN DOH staff commenced an investigation regarding allegations that Petitioner acted inappropriately with a Behavioral Health Technician at their place of employment.  IG Ex. 3 at 3; E-File Doc. No. 8c at 2.
3. At the time of the investigation, Petitioner was the Program Director of a facility called The Ranch Recovery.  IG Ex. 3 at 3; E-File Doc. No. 8c at 2.
4. During TN DOH's investigation, Petitioner denied the allegations against him; however, in 2022, Petitioner resigned from his director position at The Ranch Recovery.  IG Ex. 3 at 3; E-File Doc. Nos. 8b, 8c at 2; see also E-File Doc. No. 8f.
5. On August 9, 2024, Petitioner resigned his license and from his employment at Place of Hope; however, Petitioner continued to dispute the allegations of misconduct against him.  IG Ex. 3 at 5; E-File Doc. Nos. 8b, 8c at 2-4
6. On September 25, 2024, Petitioner signed/approved a Consent Order to be issued by the TN Board.  IG Ex. 3 at 11; E-File Doc. 8c at 10.  The Consent Order stated that Petitioner voluntarily retired his Tennessee alcohol and drug abuse counselor license and that such action "has the same effect as REVOCATION."  IG Ex. 3 at 8; E-File Doc. 8c at 7.  The Consent Order also stated that "[t]his Voluntary Surrender is a formal disciplinary action that will be reported to the National Practitioner Data Bank."  IG Ex. 3 at 10; E-File Doc. 8c at 9.  On October 11, 2024, the TN Board issued the Consent Order and mailed it to Petitioner's address in Spring Hill, Tennessee.  IG Ex. 3 at 10-11; E-File Doc. No. 8c at 9-10.

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7. On November 4, 2024, the National Practitioner Data Bank sent a notice to Petitioner's address in Spring Hill, Tennessee, to inform him that information had been submitted to the Data Bank.  E-File Doc. No. 8e.
8. On April 23, 2025, the IG sent a notice to Petitioner that the IG was considering excluding Petitioner from participating in all federal health care programs based on the revocation/surrender of his Tennessee alcohol and drug abuse counselor license.  IG Ex. 4 at 1.  The IG provided Petitioner with 30 days to provide any information or documentation that Petitioner wanted the IG to consider regarding the proposed exclusion.  IG Ex. 4 at 1.
9. The IG sent the April 23, 2025 notice to Petitioner at 1) an address in Columbia, Tennessee and 2) Petitioner's address in Spring Hill, Tennessee, that the TN Board used to send a copy of the Consent Order to Petitioner.  IG Ex. 2 ¶¶ 8-9; IG Ex. 4; see also IG Ex. 2 ¶¶ 5-6.  Neither notice sent to Petitioner was returned to the IG as undeliverable.  IG Ex. 2 ¶ 8.
10. On June 30, 2025, the IG sent a notice of exclusion to Petitioner informing him that Petitioner was being excluded from participating in federal health care programs based on the revocation/surrender of his Tennessee alcohol and drug abuse counselor license.  IG Ex. 1 at 1.  The IG sent the exclusion notice to the same addresses in Columbia, Tennessee, and Spring Hill, Tennessee, to which the IG sent the April 23, 2025 notice.  IG Ex. 1; IG Ex. 2 ¶¶ 4-6.  The exclusion notice sent to the Columbia, Tennessee address was returned with the notation:  "Attempted – Not Known Unable to Forward."  IG Ex. 2 ¶ 7; IG Ex. 5.  The exclusion notice sent to the address in Spring Hill, Tennessee, was not returned to the IG.  IG Ex. 2 ¶ 7; IG Ex. 5.
11. On July 21, 2025, the National Provider Data Bank posted information about Petitioner's exclusion from participating in federal health care programs, which became effective on July 20, 2025.  E-File Doc. No. 8h.
12. In December 2025, Petitioner communicated with CRD concerning the filing of a hearing request.  E-File Doc. Nos. 8d, 8g.
13. On December 30, 2025, Petitioner filed with CRD a request for hearing to dispute the exclusion that was imposed in the June 30, 2025 exclusion notice.  E-File Doc. Nos. 1, 8a.

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V.  Discussion

For a variety of reasons, the IG may exclude an individual or entity from participating in all Federal health care programs.  42 U.S.C. § 1320a-7(b); 42 C.F.R. pt. 1001, subpt. C.  If the IG determines that an individual or entity ought to be excluded, the IG must send notice of the exclusion to the affected individual or entity.  42 U.S.C. § 1320a-7(c); 42 C.F.R. § 1001.2002(a).  The IG must give the excluded individual or entity reasonable notice of the opportunity for a hearing to contest the exclusion.  42 U.S.C. §§ 405(b)(1), 1320a-7(f)(1); 42 C.F.R. § 1001.2002(c)(6).

A request for hearing to dispute an exclusion "must be filed within sixty days after notice of such decision is received by the individual making such request."  42 U.S.C. §§ 405(b)(1), 1320a-7(f)(1); see 42 C.F.R. §§ 1001.2007(b), 1005.2(c).  Further, "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).

The regulations do not allow an administrative law judge to extend the 60-day filing deadline for good cause (see 57 Fed. Reg. 3298, 3323 (Jan. 29, 1992)), but only allow an excluded individual to make a reasonable showing to rebut the presumption that the exclusion notice was received more than five days after the date of the notice.  See Kenneth Schrager, DAB No. 2366 at 4 (2011).  In response to public comments on this subject, the Secretary of Health and Human Services expressly declined to permit a good cause exception to the timeliness requirement for hearing requests.  See 57 Fed. Reg. at 3323.

In this case, Petitioner seeks to challenge the exclusion that the IG imposed on him in the June 30, 2025 notice.  In a February 6, 2026 email sent to CRD during these proceedings, Petitioner denied having any document dated June 30, 2025, in his possession.  E-File Doc. No. 6 at 2; E-File Doc. No. 8 at 2.  However, Petitioner did not provide this statement as a written declaration made under penalty of perjury or as an affidavit under oath or affirmation.  Further, Petitioner provided a number of documents with the email; however, Petitioner's email statement does not explain how these documents show when Petitioner first learned of his exclusion so that I can decide whether his hearing request is timely.

In contrast, the IG provided a written declaration from an IG employee concerning the IG's procedures and records, which show that the IG mailed the June 30, 2025 exclusion notice to Petitioner at his Spring Hill, Tennessee address (i.e., the address where the TN Board mailed the Consent Order to Petitioner, the National Practitioner Data Bank sent its November 2024 notice, and the IG had previously sent a notice on April 23, 2025) and the IG did not receive that notice back as undeliverable.  IG Ex. 2.  The IG also submitted documentation in support of the declaration.

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Even if Petitioner submitted his email as a declaration or affidavit, I would not be able to accept his statements as a basis to overcome the presumption of receipt five days after the date on the exclusion notice.  This is because Petitioner does not provide any specific details or a chronology as to how and when he learned of the exclusion, and why he may not have received the exclusion notice that the IG mailed to him.  Kenneth Schrager, DAB No. 2366 at 4-5 (2011) (an affidavit stating non-receipt of an exclusion notice cannot rebut the presumption of receipt when there is insufficient explanation and corroborating evidence).

I conclude that Petitioner has failed to show that he received the June 30, 2025 exclusion notice on a date later than July 5, 2025.  The IG's evidence along with the legal presumption of receipt requires me to find that Petitioner's hearing request is untimely.  When a hearing request is filed untimely, I must dismiss the hearing request.  42 C.F.R. § 1005.2(e)(1).  I have no jurisdiction to consider cases that have not been timely appealed.  See Ishtiaq A. Malik, M.D., DAB No. 2962 at 9 (2019).

III.  Order

I dismiss Petitioner's hearing request for untimeliness.