Veronica Katz, ALJ Ruling 2026-23 (HHS-CRD May 14, 2026)

RULING FINDING PETITIONER'S REQUEST FOR HEARING TIMELY

Petitioner, Veronica Katz, challenges her exclusion from participation in federal health care programs by Respondent, the Inspector General for the Department of Health and Human Services (the IG).  The IG seeks dismissal of her appeal as untimely.  For the reasons explained below, I find Petitioner has made a reasonable showing to rebut the presumption of receipt of the IG’s notice of exclusion and therefore find her request for hearing timely. 

I. Background

The IG issued a notice of exclusion to Petitioner dated June 30, 2025, advising Petitioner of her exclusion from participation in Medicare, Medicaid, and all federal health care programs for 11 years.  IG Ex. 1.  The IG addressed this notice to: 

[Redacted]

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Id. at 1.  The IG’s notice did not specify the means of delivery.  The IG advised Petitioner she had only 60 days within receipt of the notice to challenge her exclusion, and that receipt would be presumed to occur within five days of the date of the notice.  Id. at 4.  

On January 30, 2026, Petitioner submitted a document to the Civil Remedies Division using the DAB E-File system.  DAB E-file Dkt. No. C-26-290, Doc. No. 1 (P. Req. for Hearing).  This document was identified as a Request for Hearing and docketed before me to hear and decide this case.  Id.  Petitioner entitled the document a “Request for Leave to File Late Appeal.”  Id.  She explained she sought leave to file an appeal outside the 60-day window because she did not receive the IG’s notice, issued during her incarceration.  Id. at 1.  Petitioner stated she only became aware of her exclusion after her release to home confinement on January 5, 2026, when she received a letter from the Medi-Cal program referencing the IG’s action.  Id.  After attempting to seek clarification and advice concerning her exclusion, Petitioner filed the request at issue here.  Id. 

To support her claim, Petitioner submitted a signed declaration stating under penalty of perjury she did not receive an exclusion notice from the IG while incarcerated and that she did not become aware of her exclusion until after her release to home confinement on January 5, 2026.  DAB E-file Dkt. No. C-26-290, Doc. No. 1a (P. Decl.) at 1. 

On February 2, 2026, I afforded the IG leave to file a response if he believed Petitioner’s hearing request to be untimely.  The IG filed a response (IG Resp.) and one exhibit (IG Ex. 1) asserting Petitioner’s hearing request should be dismissed because there is no good-cause exception to the 60-day filing deadline.  The IG did not address whether Petitioner made a reasonable showing to rebut the five-day presumption of receipt.  Nor did the IG proffer any evidence. 

II. Discussion

A. Applicable Law

The Social Security Act (Act) obliges or authorizes the IG to exclude certain individuals from participation in federal health care programs.  42 U.S.C. § 1320a-7(a), (b).  The Act affords excluded individuals “reasonable notice and opportunity for a hearing” to the same extent provided by 42 U.S.C. § 405(b), which affords hearing rights to Social Security disability claimants who receive an adverse decision.  42 U.S.C. § 1320a-7(f)(1).  That provision of the Act requires claimants receive “reasonable notice and opportunity for a hearing” if they “make a showing in writing that his or her rights may be prejudiced by any decision the Commissioner of Social Security has rendered…”  42 U.S.C. § 405(b)(1).  It also requires claimants to make such a request “within sixty days after notice of such decision is received[.]”  Id.  

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The Secretary’s implementing regulations therefore require an excluded party to request a hearing within 60 days of receiving notice of exclusion.  42 C.F.R. § 1001.2007(b).  They do not allow me to accept an untimely filing for good cause shown but instead require me to dismiss an untimely hearing request.  42 C.F.R. § 1005.2(e)(1); Maiorano v. Thompson, Civ. Action No. 04-2279, 2008 WL 304899, at *6 (D.N.J. Feb. 1, 2008).  For purposes of determining the timeliness of a hearing request, the applicable regulations presume an excluded individual received the notice of exclusion five days after the date of its issuance by the IG, absent “a reasonable showing to the contrary.”  42 C.F.R. § 1005.2(c). 

B. Petitioner has made a reasonable showing to rebut the presumption of receipt.  

42 C.F.R. § 1005.2(c) presumes a party received the IG’s notice of exclusion five days after the date of its issuance.  The IG’s notice of exclusion is dated June 30, 2025.  If this is the actual date of issuance, which the IG has not established, Petitioner is presumed to have received the notice by July 5, 2025, meaning her hearing request had to be filed by September 3, 2025.  Petitioner did not file her hearing request until January 30, 2026, making her challenge presumptively untimely under the regulations.  42 C.F.R. § 1001.2007(b). 

However, the presumption of receipt can be rebutted by a “reasonable showing to the contrary.”  42 C.F.R. § 1005.2(c).  Petitioner filed a signed declaration made under penalty of perjury to assert she did not receive the IG’s exclusion notice within the presumptive timeframe.  P. Req. for Hearing; P. Decl.  She declares she did not receive the IG’s notice during her incarceration at the location to which the IG addressed it.  P. Decl. at 1.  Petitioner explains she only became aware of the IG’s notice after her release to home confinement on January 5, 2026, when she received correspondence from the Medi-Cal program that referenced her exclusion.  Id. at 2. 

In response, the IG argues Petitioner did not actually file a request for hearing but instead sought an extension of time in which to do so for good cause shown, relief not available to her under the regulations.  IG Resp. at 1-2.  The IG claims Petitioner’s filing cannot be construed as a request for hearing because it does not “actually raise any issue with the basis or length of exclusion.”  Id. at 2, citing 42 C.F.R. § 1005.2(e)(4).  The IG otherwise asserts Petitioner failed to assert circumstances the IG believes necessary to rebut the regulatory presumption of receipt, making her January 2026 filing untimely.  Id. at 1. 

The IG’s claim that Petitioner’s filing should not be considered a request for hearing is unpersuasive.  The Departmental Appeals Board acknowledged administrative law judges (ALJs) should afford pro se petitioners challenging their exclusion “some extra measure of consideration” and give them “wide latitude to present evidence” to provide a “fair and impartial” proceeding under the Secretary’s regulations.  Anthony Joseph Moschetto,

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D.O., DAB No. 3030 at 16 (2021) (quoting Louis Mathews, DAB No. 1574 at 9-10 (1996)) (citing George Iturralde, M.D., DAB No. 1374 at 13-14 (1992)).  The Board noted its own practice of carefully considering and broadly construing arguments made by pro se petitioners challenging their exclusion.  Id. at 14, citing Gena C. Randolph, DAB No. 2526 at 4 (2013); Monica Ferguson, DAB No. 3013 at 5 n.4 (2020).  

Applying these admonitions here, I broadly construe Petitioner’s pleading.  Her choice of language in the body of her initial filing, styled as a motion for additional time to file a hearing request, is inapt.  She plainly did not understand that good-cause extensions for untimely filings are not available in proceedings under 42 C.F.R. pt. 1005.  She also did not apprehend that her declaration potentially provided a basis for her hearing request to be deemed timely under 42 C.F.R. § 1005.2(c).  Inartful pleading by a pro se petitioner does not require me to deprive her of a statutorily conferred right to hearing.  To request a hearing to appeal an exclusion action taken by the IG, the Act requires only that a dissatisfied party “make a showing in writing that his or her rights may be prejudiced by any decision [ ] rendered…”  42 U.S.C. § 1320a-7(f)(1), incorporating by reference 42 U.S.C. § 405(b)(1).  

I find Petitioner has made this showing.  See id. The fact that she may have done so inadvertently is irrelevant.  By referencing the IG’s notice of exclusion in her request and attaching the notice itself, Petitioner clearly identified the adverse decision that prejudiced her rights.  She also proffered testimonial evidence that could serve to establish a reasonable showing to rebut the presumption of receipt and establish the timeliness of her hearing request.  See 42 C.F.R. § 1005.2(c). 

Petitioner may have misunderstood the remedies available to her when she filed what she described as a motion for an extension of time.  But the substance of her request and the documentary and testimonial evidence she proffered identified in writing the adverse decision that prejudiced her rights.  That is all the Act requires.  See 42 U.S.C. § 405(b)(1).  For these reasons, I find Petitioner’s filing sufficient to be considered a request for hearing within the meaning of the Act.  The IG cannot prevail on this basis. 

The IG’s argument that dismissal is warranted because Petitioner did not specify issues and facts with which she disagreed, or factual bases to support her claim, is meritless.  The IG appears to believe failing to satisfy the content requirements for a hearing request set forth at 42 C.F.R. § 1005.2(d) requires dismissal as a failure to “raise any issue which may properly be addressed in a hearing.”  See 42 C.F.R. § 1005.2(e)(4).  But the Secretary’s regulations do not demand dismissal on this basis.  A failure to meet the content requirements is essentially a pleading defect that could easily be remedied by

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requiring a petitioner to amend their hearing request.1   That defect does not necessarily amount to a failure to identify an issue I could decide, which is a jurisdictional defect. 

Interpreting 42 C.F.R. § 1005.2(e)(4) to warrant dismissal for a failure to meet the content requirement at 42 C.F.R. § 1005.2(d) would violate the plain language of the Act, which only requires Petitioner to make a showing in writing that her rights may have been prejudiced by the IG’s decision to exclude her.  42 U.S.C. § 405(b)(1).  She has done so.  The IG cannot read the Secretary’s regulations to impose additional threshold requirements the Act does not authorize.2   For these reasons I reject the IG’s contention that the content omissions in Petitioner’s hearing request warrant dismissal.  

Finally, the IG asserts Petitioner has not provided sufficient evidence to rebut the presumption of receipt.  IG Resp. at 1.  The IG appears to believe Petitioner could only do so by showing the IG used an incorrect mailing address that prevented delivery of the notice to her and resulted in return of the notice to the IG.  Id.  The IG does not expound why a petitioner must produce what amounts to conclusive proof of non-receipt – including evidence only the IG could possess – to make a “reasonable showing” within the meaning of 42 C.F.R. § 1005.2(c).  

Indeed, the IG failed to proffer any evidence at all, even proof of the date the exclusion notice issued, from which the five-day presumptive receipt is calculated.  The IG also failed to acknowledge or rebut the evidence Petitioner did provide – her declaration, made under penalty of perjury, that she did not receive the IG’s notice while incarcerated and did not become aware of her exclusion until her release to home confinement in January 2026.  P. Decl.  

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The IG instead relies solely on one case where the Board affirmed an ALJ’s finding that a petitioner’s affidavit denying receipt of the IG’s exclusion notice did not constitute a reasonable showing to rebut the presumption of receipt.  Kenneth Schrager, DAB No. 2366 at 4 (2011).  There, however, the IG expended effort before the ALJ to negate the credibility of Petitioner Schrager’s affidavit.  The IG submitted testimonial evidence concerning the IG’s “policy to place notice letters in the mail on the day they are dated.”  Id. at 2.  The IG also submitted declarations that Petitioner Schrager’s exclusion notice was not returned to the IG’s office as undeliverable.  Id. at 3.  Finally, because the IG had issued the notice to Petitioner Schrager at the correct address but with the wrong P.O. Box number, the IG submitted an affidavit from a corrections officer at Petitioner Schrager’s facility who confirmed the prison’s mail processing system would have ensured delivery despite the address error.  Id.  The Board concluded the evidence proffered by the IG “belied” the theories proposed by Petitioner Schrager to explain his non-receipt of the IG’s notice.  Id. at 5. 

The IG has done none of these things here.  He has submitted no evidence, even evidence he issued the exclusion notice at issue.  The IG’s sole exhibit, an electronic copy of the exclusion notice, contains a purported date and address at the top but does not indicate the method of delivery.  IG Ex. 1.  Without evidence the IG issued the exclusion notice to Petitioner on the day the notice is dated, it is merely an electronic copy.  There is no factual basis upon which I could rely to apply the presumptive five-day receipt rule.  See Pettway ex rel. Pettway v. Barnhart, 233 F. Supp. 2d 1354, 1360-62 (S.D. Ala. 2002) (observing in Social Security disability cases with an analogous presumptive receipt rule that “[i]n considering what constitutes a ‘reasonable showing’ sufficient to rebut the presumption of timely receipt, the showing necessary to raise the presumption initially should be borne in mind” and that “in a closer case the questionable premise of the Commissioner’s presumption if not supplemented by satisfactory proof of actual and timely mailing could well tip the balance in favor of the plaintiff.”) (emphasis added). 

A more analogous Board decision the IG failed to identify applies here.  See Mark K. Mileski, DAB No. 1945 (2004).  Petitioner Mileski submitted a declaration asserting he did not receive the IG’s December 31, 2002 notice of exclusion until December 15, 2003.  Id. at 4.  As here, Petitioner Mileski asserted he only discovered his exclusion through correspondence with another government agency.  Id. at 5.  However, Petitioner Mileski took no action for months after receiving this constructive notice and did not appeal his exclusion until after corresponding with the IG to seek reinstatement.  Id. at 5-6. 

The Board nevertheless found Mileski made a “reasonable showing” within the meaning of the regulations by submitting sworn testimony he had not received the notice of exclusion.  The Board rejected the IG’s urging to apply the presumptive receipt rule where the notice had been sent by first-class mail and not returned as undeliverable, observing “the [IG] did not counter Petitioner’s showing by providing an affidavit

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regarding its normal mailing procedures or any particulars about the mailing of the notice letter, much less any other proof of mailing or receipt.”  Id. at 6. 

The same circumstance exists here.  Petitioner has submitted undisputed testimonial evidence she did not receive the IG’s notice.  To counter Petitioner’s declaration, the IG has proffered no evidence to cast doubt on its veracity.  I have no basis to reject Petitioner’s testimony and find her fully credible.  I find Petitioner has made a reasonable showing under 42 C.F.R. § 1005.2(c) that she did not receive the IG’s notice within five days of its purported issuance. 

C. Petitioner’s hearing request is timely.  

The IG has not submitted evidence to establish if or when he provided Petitioner written notice of her exclusion.  As the Board observed, constructive notice is insufficient; the 60-day timeframe to file a request for hearing begins from receipt of “the notice provided in accordance with [42 C.F.R.] § 1001.2002.”3   Mileski, DAB No. 1945 at 6.  Nevertheless, no purpose would be served by requiring the IG to issue notice of Petitioner’s exclusion to her now as there is no question she received it, given she attached it to her request for hearing. 

The question is when Petitioner received the notice from the IG; neither party has proffered evidence as to its issuance or receipt.  However, I rely on Petitioner’s testimony that she did not become aware of her exclusion until after her release to home confinement on January 5, 2026.  P. Decl.  Petitioner does not specify the exact date she received the IG’s notice of exclusion, but even if that occurred as early as the day of her release from incarceration, Petitioner’s January 30, 2026 hearing request is timely.  My office will issue an acknowledgment order and notify the parties of the date and time I will convene a pre-hearing conference.  

III. The IG should consider the use of certified mail.

Because the IG did not proffer evidence he issued Petitioner a notice of exclusion or otherwise articulate a reason to reject her declaration, I did not need to reach the question of what evidence the IG would need to submit to counter a “reasonable showing” of non-receipt within the meaning of 42 C.F.R. § 1005.2(c).  In Mileski, the Board accepted a petitioner’s declaration of non-receipt as sufficient to make a reasonable showing but strongly suggested the IG could counter such a showing of non-receipt by submitting sworn testimony regarding his office’s normal mailing procedures as well as proof of mailing or receipt.  DAB No. 1945 at 6.  The IG did so in Schrager, submitting testimonial evidence to show his office normally issued exclusion notices on the date of

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the notice and that the notice in that case had not been returned as undeliverable.  The Board affirmed the ALJ’s finding that the IG submitted evidence sufficient to counter Petitioner Schrager’s declaration of non-receipt, even where the IG sent the notice of exclusion to the wrong address.  DAB No. 2366 at 2-3.  Citing several U.S. District Court decisions concerning an analogous presumptive receipt rule in Social Security disability cases, the Board went on to assert in dicta that a sworn statement could never be used to rebut the presumption of receipt.  DAB No. 2366 at 4-5, citing McCall v. Bowen, 832 F.2d 862, 864 (5th Cir. 1987); Pettway, 233 F.Supp.2d at 1356. 

But the Board did not appear to recognize the Social Security Administration (SSA) issues those notices by certified mail.4  Applying the presumption of receipt where the U.S. Postal Service documents delivery to a specified mailing address on a date certain substantially changes the analysis as to what level of proof is necessary for a petitioner to make a “reasonable showing” of non-receipt.  This is especially true for incarcerated petitioners, who must challenge the adequacy or regularity of mail delivery in their carceral institutions to prevail where the use of certified mail establishes issuance and delivery to the institution, if not the individual.

Notices of civil forfeiture actions mailed to incarcerated individuals enjoy a similar presumption of receipt.  But like SSA hearing notices, they are also issued by certified mail.  See Chairez v. United States, 355 F.3d 1099, 1101-02 (7th Cir. 2004); Whiting v. United States, 231 F.3d 70, 76-77 (1st Cir. 2000); United States v. Real Prop., 129 F.3d 1266 (Table) at *2 (6th Cir. 1997) (unpublished table decision); United States v. Clark, 84 F.3d 378, 381 (10th Cir. 1996).5 

From these other contexts it thus appears inappropriate to strictly apply a presumptive receipt rule where the government has not used certified mail to provide critical notices.  By declining to take the extremely minimal measure of issuing notices by certified mail, particularly to incarcerated petitioners, the IG invites reviewing bodies to question whether it is appropriate to apply a presumption of receipt to the exclusion notices he issues. 

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Finally, it is worth noting that in stark contrast to the regulations implemented by SSA or the Centers for Medicare & Medicaid Services (CMS) for hearings authorized under the same provision of the Act and proceeding under the auspices of the Administrative Procedures Act, the Secretary’s exclusion regulations fail to permit ALJs the discretion to toll the 60-day deadline upon a showing of good cause.  See 20 C.F.R. §§ 404.933(c), 416.1433(c); 42 C.F.R. § 498.40(c).  Whether a disability claim denial by SSA, a regulatory enforcement or enrollment action by CMS, or an exclusion action by the IG, the Act confers the exact same right to a hearing and judicial review.  See 42 U.S.C. §§ 405(b), (g).  It is unclear why, in implementing that identical statutory appeal right, CMS and SSA recognized the need to allow ALJs the authority to permit untimely filings with a showing of good cause, but the Secretary did not.  Failing to provide this simple remedy suggests the IG’s strict enforcement of a 60-day timeframe to seek appeal – all while declining to take minimal measures to ensure delivery of the notices that trigger those appeals – fails to comport with basic principles of due process. 

In sum, it is true neither the Act nor the Secretary’s regulations require the IG to issue notices of exclusion by certified mail.  But there is no discernible reason for the IG to avoid doing so, especially for incarcerated individuals.  The minimal cost of issuing notices by certified mail would nearly guarantee service of that notice, assuming the IG uses the correct address.  Documented proof of delivery would make it more difficult for excluded individuals to plausibly claim they did not receive the IG’s notice.  It would also require less effort on the part of IG counsel to negate an effort to make a reasonable showing in all but the most unusual circumstances. 

Beyond these practical considerations, however, the government should not be in the business of taking the path of least resistance to substantially curtail the ability of individuals to seek due process of law, particularly those who are incarcerated.

Service via DAB E-file