Nathan Thomas Carter, ALJ Ruling 2027-5 (HHS-CRD October 26, 2026)

RULING GRANTING THE INSPECTOR GENERAL’S MOTION TO DISMISS PETITIONER’S UNTIMELY REQUEST FOR HEARING

Petitioner, Nathan Thomas Carter, requested a hearing to contest the Inspector General’s (IG) determination to exclude him from participation in all federal health care programs under section 1128(a)(4) of the Social Security Act (Act).  The IG has moved to dismiss this case arguing that the appeal is untimely.  For the reasons explained below, the IG’s motion to dismiss is granted and Petitioner’s request for hearing is dismissed.

I.  Background

By notice letter dated March 29, 2024, the IG informed Petitioner that he was being excluded from participation in Medicare, Medicaid, and all federal health care programs for a minimum period of 17 years.  The exclusion was imposed due to Petitioner’s felony conviction, in the United States District Court for the Northern District of Alabama, of a “criminal offense related to the unlawful manufacture, distribution, prescription, or dispensing of a controlled substance.” IG Exhibit (Ex.) 1.

On April 10, 2026, the Civil Remedies Division (CRD) received Petitioner’s request for a hearing (P. Hrg. Req.).

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On April 13, 2026, the CRD issued a letter, at my direction, acknowledging receipt of Petitioner’s hearing request.  The letter notified the parties that a telephone prehearing conference was scheduled for May 20, 2026, at 11:00 a.m. EST.  On the date of the prehearing conference, Woody Ketcham, Esq. appeared on behalf of Petitioner and Lisa Veigel, Esq. appeared on behalf of the IG.  Both parties acknowledged that Petitioner’s request for hearing was filed untimely and agreed to a briefing schedule to submit a motion and response addressing the issue of timeliness.

On June 25, 2026, the IG filed a Motion to Dismiss for Failure to Timely File an Appeal (IG MTD), along with 2 exhibits (IG Exs. 1-2).  On July 29, 2026, Petitioner filed a Response to the IG’s Motion to Dismiss (P. Resp.) and one exhibit (P. Ex. 1).

II.  Legal Authorities

An individual excluded under section 1128(a)(4) of the Act is entitled to reasonable notice and an opportunity for a hearing.  42 U.S.C. § 1320a-7(f)(1); 42 C.F.R. §§ 1001.2002, 1001.2007(b).  An individual may appeal an exclusion if the individual files a written request for hearing within 60 days of receiving the IG’s notice of exclusion.  42 C.F.R. §§ 1005.2(c), 1001.2007(b).  An individual is presumed to have received the IG’s exclusion notice within five days (excluding weekends and federal holidays) from the date it was mailed, unless the individual can make a reasonable showing to the contrary.  42 C.F.R. §§ 1005.2(c), 1005.12(b).  The regulations do not include a good cause exception for untimely filing and require an administrative law judge (ALJ) to dismiss a hearing request that is not filed in a timely manner.  See 42 C.F.R. § 1005.2(e)(1); Maiorano v. Thompson, Civil Action No. 04-2279, 2008 WL 304899, at *3 (D.N.J. Feb. 1, 2008).

III.  Petitioner’s Request for Hearing is Untimely

Petitioner was incarcerated at the Federal Prison Camp (FPC) in Montgomery, Alabama when the IG issued the Notice of Exclusion on March 29, 2024.  See IG Ex. 1; P. Hrg. Req.; P. Resp.  The Notice of Exclusion mailed to Petitioner was addressed as follows:  Nathan Thomas Carter, 35262-510, FPC Montgomery, Maxwell Air Force Base, Montgomery, AL 36112.  IG Ex. 1.  Petitioner does not dispute that the IG mailed the notice to the correctional institution.  P. Resp. at 3.  The notice informed Petitioner that he was being excluded from participating in Medicare, Medicaid, and all other federal health care programs for 17 years, pursuant to section 1128(a)(4) of the Act and explained that Petitioner had 60 days to appeal the exclusion by filing a written request for hearing before an ALJ.  IG Ex. 1; see 42 C.F.R. § 1001.2002(c)(6).

The regulations provide that a Petitioner has 60 days after the presumptive notice date to request an appeal.  The IG provided evidence that March 29, 2024, the date of the notice

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of exclusion, is the same date that the notice was placed in the mail.  IG Ex. 2.  The presumptive notice date is five days after the mailing of the notice.  Therefore, Petitioner’s request for hearing is untimely because it was not submitted until April 10, 2026, more than two years after the presumptive notice date.

IV.  Discussion

Once the untimeliness of the hearing request is established, the only manner in which a petitioner can overcome a motion to dismiss is to make a “reasonable showing” to rebut the presumption of receipt of the notice.  Kenneth Schrager, DAB No. 2366 at 3-4 (2011).  The presumption of receipt may be rebutted when a petitioner’s statement denying receipt is accompanied by sufficient explanation and corroborating evidence.  Id.  In this case, the IG has presented evidence that the notice of exclusion was sent to Petitioner’s address of record and that the notice was not returned as undeliverable.  IG Ex. 2.

Petitioner argues that the IG offers no evidence to establish Petitioner’s actual date of receipt of the notice and whether prison officials documented the date of delivery.  P. Resp. at 2, 3.  However, this is not required by the regulations.  Petitioner denies receiving the Notice of Exclusion and denies being aware of the exclusion, the appeals process, and the applicable timeline until after the 60-day deadline had passed.  P. Ex. 1.  However, Petitioner never explicitly states when he became aware of the exclusion or the notice.  Instead, he states that he cannot “truthfully state when institutional staff actually delivered the notice to him personally”.  P. Resp. at 3.  Petitioner further explains that his telephone access was generally limited and that he lacked the financial resources available to obtain counsel.  P. Resp. at 3.  Petitioner also argues that he cannot verify when mail entered or moved through the prison mail distribution system. Id.  The arguments set forth by Petitioner lead me to believe that Petitioner received the notice of exclusion while incarcerated but did not believe that he had the necessary tools to follow through with the appeals process.

While I am sympathetic to the challenges that Petitioner faced while incarcerated and upon his release, I find that he has not made “a reasonable showing” to rebut the presumption of delivery set forth at 42 C.F.R. § 1005.2(c).  In this case, the Notice of Exclusion issued by the IG was mailed to the correct address and was not returned to the agency as undeliverable.  Based on the regulations, I presume that Petitioner received the notice of exclusion by April 3, 2024, five days after the March 29, 2024, notice letter was mailed.  Petitioner did not submit a request for hearing until April 2026, two years after the Notice of Exclusion was issued, well beyond the 60-day period provided by the regulations.

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V.  Conclusion

Based on the evidence set forth, I find that Petitioner has not rebutted the presumption that he received the IG’s exclusion notice five days after the date of mailing.  Petitioner’s request for hearing was untimely filed and the IG’s motion to dismiss is GRANTED.