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                              Belkis L. Montoya, DAB CR5048 (2018)
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Belkis L. Montoya, DAB CR5048 (2018)








  
  
    

  
      
Department of Health and Human Services 
    DEPARTMENTAL APPEALS BOARD
          Civil Remedies Division





Belkis L. Montoya
	(OI File No. H-17-40931-9),
	Petitioner
	v.
	The Inspector General
	U.S. Department of Health and Human Services
Docket No. C-18-113Decision No. CR5048March 16, 2018

        
              
    

      DECISION
The request for hearing of Petitioner, Belkis L. Montoya, is dismissed pursuant to 42 C.F.R. § 1005.2(e)(1)1
  because it was not timely filed.
I. Background
The Inspector General for the Department of Health and Human Services (I.G.) notified Petitioner by letter dated June 30, 2017, that she was being excluded from participation in Medicare, Medicaid, and all federal health care programs for the minimum statutory period of five years.  The I.G. cited section 1128(a)(1) of the Social Security Act (the Act) (42 U.S.C. § 1320a-7(a)) as the basis for Petitioner’s exclusion and stated that the exclusion was based on her conviction in the Superior Court of California, County of Los Angeles, of a criminal offense related to the delivery of an item or service under Medicare or a state health care program.  I.G. Exhibit (Ex.) 1.
Page 2
Petitioner filed a request for hearing on October 27, 2017.  The case was assigned to me for hearing and decision on November 14, 2017.  A prehearing conference was convened on November 27, 2017.  The substance of the prehearing conference is memorialized in my Prehearing Conference Order and Schedule for Filing Briefs and Documentary Evidence dated November 30, 2017 (Prehearing Order).  During the prehearing conference, the I.G. requested to file a motion to dismiss prior to case development.  I set a briefing schedule for a motion to dismiss by the I.G.  Prehearing Order ¶ 5.
The I.G. filed a motion to dismiss on December 26, 2017 with a supporting memorandum (I.G. Br.) and I.G. Exhibit (Ex.) 1.  On January 27, 2018, Petitioner filed a response in opposition to the I.G. motion (P. Br.).  Neither party objected to my consideration of I.G. Ex. 1 and it is admitted as evidence.
II. Discussion
A. Applicable Law
Section 1128(f) of the Act (42 U.S.C. § 1320a-7(f)) establishes Petitioner’s rights to a hearing by an administrative law judge (ALJ) and judicial review of the final action of the Secretary of the United States Department of Health and Human Services (Secretary).  The Secretary has provided by regulation that an excluded individual has the right to request a hearing before an ALJ.  42 C.F.R. §§ 1001.2007(a)(1), 1005.2(a).  The regulations require that a request for hearing be in writing and be filed not more than 60 days from the date of receipt of the notice of exclusion.  42 C.F.R. §§ 1001.2007(b), 1005.2(c).  The notice of exclusion is presumed to be received five days after the date on the notice, unless there is a reasonable showing to the contrary.  42 C.F.R. § 1005.2(c).  I am required to dismiss a request for hearing that is not filed timely, that is, within 60 days of receipt of the notice of exclusion.  42 C.F.R. § 1005.2(e)(1).  The regulations grant me no discretion to waive a late-filing or to extend the time for filing.
B. Issue
Whether Petitioner’s request for hearing must be dismissed because it was not timely filed.
Page 3
C. Findings of Fact, Conclusions of Law, and Analysis
My conclusions of law are set forth in bold followed by the pertinent findings of fact and analysis.
**1. Petitioner’s request for hearing was not timely filed.**
**2. Petitioner’s request for hearing must be dismissed pursuant to 42 C.F.R. § 1005.2(e)(1).**
There is no dispute that the I.G. mailed Petitioner a letter dated June 30, 2017, notifying Petitioner that she was being excluded from Medicare, Medicaid, and all federal health care programs.  I.G. Ex. 1.  Pursuant to 42 C.F.R. § 1005.2(c), there is a rebuttable presumption that the June 30, 2017 notice was received by Petitioner five days later on Wednesday, July 5, 2017.  Petitioner states in her opposition to the I.G. motion that the notice was received on June 30, 2017, but that may be an error.  P. Br. at 1.  Pursuant to 42 C.F.R. §§ 1001.2007(b) and 1005.2(c), Petitioner had 60 days to file her request for hearing.  The 60th day after presumed receipt fell on Sunday, September 3, 2017, a weekend and the day before a federal holiday.  Therefore, the deadline for Petitioner to file her request for hearing was the next business day, Tuesday, September 5, 2017.  42 C.F.R. § 1005.12(a).
There is no dispute that Petitioner filed her request for hearing on October 27, 2017.  P. Br. at 2.  To be timely filed, Petitioner’s request for hearing had to be filed not later than September 5, 2017, but she did not file the request for hearing until October 27, 2017, which was 52 days late.  Because Petitioner’s request for hearing was 52 days late, the I.G. has moved that this case be dismissed.
Contrary to Petitioner’s argument, the regulations grant me no discretion to extend the time for filing a request for hearing or to excuse the late filing of a request for hearing.  I am required to dismiss a hearing request that is not timely filed, as indicated by the drafter’s use of the term “will” in the regulation.  42 C.F.R. § 1005.2(e)(1).
Accordingly, I conclude that I have no discretion but must dismiss Petitioner’s request for hearing pursuant to 42 C.F.R. § 1005.2(e)(1).
Page 4
III. Conclusion
For the foregoing reasons, Petitioner’s request for hearing is dismissed.


          /s/
        Keith W. Sickendick

                      Administrative Law Judge
      1. References are to the 2016 revision of the Code of Federal Regulations (C.F.R.) in effect at the time of the agency action, unless otherwise stated. back to note 1 Back to top
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