Michael Bozelly Jones, M.D., DAB No. 3113 (2023)

Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD
Appellate Division

Michael Bozelly Jones, M.D.

Docket No. A-23-69
Decision No. 3113

DETERMINATION TO DECLINE REVIEW OF ADMINISTRATIVE LAW JUDGE DECISION

After reviewing the record to evaluate the issues presented by Petitioner in his appeal of the administrative law judge (ALJ) Dismissal in Michael Bozelly Jones, CRD Docket No. C-23-574 (September 1, 2023), we have determined that we need not render a separate decision.  The ALJ dismissed Petitioner’s hearing request under 42 C.F.R. § 1005.2(e)(1) because it was not timely filed and Petitioner failed to make a “reasonable showing” to rebut the presumption of receipt of the March 29, 2019 Inspector General (IG) exclusion notice five days after the date of the notice.  Dismissal at 2-3; Cf. Kenneth Schrager, DAB No. 2366, at 4 (2011) (holding petitioner’s mere statement denying receipt of exclusion notice, without “sufficient explanation and corroborating evidence,” is insufficient to rebut presumption of receipt under 42 C.F.R. § 1005.2(c)).  On appeal, Petitioner raised no exceptions that were not already sufficiently addressed by the ALJ or prior Board decisions.1 

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Pursuant to 42 C.F.R. § 1005.21(g), we therefore decline review of and summarily affirm the ALJ’s Dismissal.   

/s/

Christopher S. Randolph Board Member

/s/

Constance B. Tobias Board Member

/s/

Karen E. Mayberry Presiding Board Member

  • 1

      Petitioner did not substantively challenge the ALJ’s conclusion that Petitioner failed to rebut the presumption of receipt of the exclusion notice mailed to his current address.  Instead, Petitioner stated that he had a fire in his home on July 3, 2023, and that his current internet in Fort Valley, Georgia is of poor quality, such that he was unable to timely respond to the IG’s August 8, 2023 motion to dismiss.  RR at 1; Mot. to Dismiss.  However, these issues are unrelated to his failure to appeal the March 29, 2019 IG exclusion notice in a timely manner.  Petitioner stated he “accept[s] responsibility for not requesting an extension to [his] filing time,” and asks that we “consider [his] circumstance and reverse the decision to dismiss [his] request.”  RR at 1.  “The regulations do not permit an ALJ or the Board to excuse a petitioner’s failure to meet the regulatory filing requirements based on equitable grounds.”  Kenneth Schrager at 6; see alsoBoris Sachakov, M.D., DAB No. 2707, at 4 (2016) (holding that 42 C.F.R. § 1005.2(e)(1) mandates dismissal of an untimely hearing request); Gary Grossman, DAB No. 2267, at 5 (2009) (“[T]he ALJ was required to dismiss Petitioner’s hearing request if it was not timely filed.”).