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                              Lindsay Boitano, DAB CR6130 (2022)
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Lindsay Boitano, DAB CR6130 (2022)








  
  
    

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





Lindsay Boitano
(OI File No.:  B-21-40373-9),
Petitioner,

v.

The Inspector General,
U.S. Department of Health and Human Services.
Docket No. C-22-390Decision No. CR6130July 29, 2022

        
              
    

      DECISION

Petitioner’s request for hearing 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 United States Department of Health and Human Services (IG) notified Petitioner by letter dated December 30, 2021, that she was excluded from participation in all federal health care programs for the minimum statutory period of five years.  The IG cited section 1128(a)(1) of the Social Security Act (Act) (42 U.S.C. § 1320a-7(a)) as the basis for Petitioner’s exclusion.  The IG stated that the exclusion was due to Petitioner’s 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

Page 2

state health care program.  Petitioner’s five-year exclusion became effective on January 19, 2022, 20 days from the date of the IG notice.  IG Exhibit (Ex.) 1.

Petitioner electronically filed a request for hearing (RFH) on March 15, 2022, using the Departmental Appeals Board Electronic Filing System (DAB E-File).  The case was docketed and assigned to me for hearing and decision.  On April 1, 2022, the Civil Remedies Division (CRD) received by express mail a duplicate of Petitioner’s request for hearing and duplicates of documents previously filed by Petitioner using DAB E-File.  According to the shipping label on the envelope containing the documents, the documents were delivered to the express mail service on March 15, 2022, the same date Petitioner electronically filed her request for hearing and supporting documents using DAB E-File.  The copy of the request for hearing and supporting documents received by mail were uploaded to DAB E-File as item #5.

A prehearing conference was convened on April 12, 2022, the substance of which is memorialized in my Prehearing Conference Order and Schedule for Filing Briefs and Documentary Evidence (Prehearing Order) issued on April 13, 2022.  During the prehearing conference, the IG requested to file a motion to dismiss prior to further case development.  I set a briefing schedule for a motion to dismiss.  Prehearing Order ¶ 5.

The IG filed a motion to dismiss on May 11, 2022, with a supporting memorandum and IG Exs. 1 and 2.  On June 26, 2022, Petitioner filed her declaration which I treat as her response in opposition to the IG motion to dismiss (P. Br.) as well as her sworn statement.  Petitioner filed no exhibits with her declaration.  The documents filed by Petitioner with her request for hearing and a document filed prior to the prehearing conference (DAB E-File ##1b, 1c, 4) are not relevant to the issue of whether her case must be dismissed for untimely filing and those documents are not admitted as evidence. 2  42 C.F.R. § 1005.17(c).  IG Exs. 1 and 2 are relevant to the only issue before me on the motion to dismiss and they are admitted as evidence.  42 C.F.R. § 1005.17(a), (b); Fed. R. Evid. 401.

II.   Discussion

**A. Applicable Law**

Section 1128(f) of the Act (42 U.S.C. § 1320a-7(f)) establishes Petitioner’s right 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).

Page 3

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.

**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 IG mailed Petitioner a letter dated December 30, 2021, notifying Petitioner that she was being excluded from all federal health care programs.  IG Ex. 1.  Pursuant to 42 C.F.R. § 1005.2(c), there is a rebuttable presumption that the December 30, 2021 IG notice was received by Petitioner five days later, on Tuesday, January 4, 2022.  Petitioner does not allege, and she has presented no evidence that she received the December 30, 2021 IG notice of exclusion after January 4, 2022.  RFH; P. Br.  Pursuant to 42 C.F.R. §§ 1001.2007(b) and 1005.2(c), Petitioner had 60 days after she received the IG notice to file her request for hearing.  The 60th day after Petitioner’s presumed receipt of the IG notice of exclusion was Saturday, March 5, 2022.  The following day, March 6, 2022, was Sunday.  Therefore, the deadline for Petitioner to file her request for hearing was the next business day, Monday, March 7, 2022.  42 C.F.R. § 1005.12(a).  However, there is no dispute that Petitioner filed her request for hearing by DAB E-File on March 15, 2022, eight days after the March 7, 2022 deadline for filing the request for hearing.  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 for any reason.  I am required to dismiss a hearing request that is not timely filed, as indicated by the drafters’ use of the term “will” in the regulation.  42 C.F.R. § 1005.2(e)(1).

Page 4

Petitioner argues that her failure to timely file a request for hearing should be excused because the website link in the IG notice letter was incorrect.  Petitioner states that she tried every method and used every available device to access the DAB E-File website to upload her request for a hearing, to no avail.  P. Br. ¶¶ 4-10.  However, as already explained, I do not have the discretion to excuse the late filing for any reason.  Unlike the regulations that control in other types of cases, the regulations governing this case do not include a good-cause exception that authorizes an ALJ to extend the time for filing if good cause for late filing is shown.  *Compare* 42 C.F.R. § 1005.2(c) (IG exclusions), *with* 42 C.F.R. § 498.40(c)(2) (long-term care facility cases).

Even if there was a good cause exception, I would not find good cause exists in this case.  Petitioner admits that she ignored the notice of exclusion for several weeks because she erroneously believed that the notice did not apply to her, despite the fact it is addressed to her and discusses her conviction as the basis for exclusion.  Petitioner’s attention became focused on the notice of exclusion only after her employer notified her on March 4, 2022, of a problem with her background check.  P. Br. ¶¶ 1-3.  On some unspecified date after March 4, 2022, Petitioner attempted to submit her request for hearing using DAB E-File but found that the web address provided in the IG notice would not work.  P. Br. ¶ 4.  It was not until after the deadline to file the request for hearing lapsed on March 7, 2022, that Petitioner attempted to contact the IG by telephone on either March 11 or March 14, 2022.  P. Br. ¶ 5.  Petitioner had ample time between January 4 and March 7, 2022, to file her request for hearing by DAB E-File and to contact the IG or the CRD for assistance resolving any problem using DAB E-File.  I note that the link to DAB E-File provided in the IG notice letter was incorrect.  However, the notice advised Petitioner that she could file a request for hearing by mailing the request directly to the CRD.  IG Ex. 1 at 4.  In this case, when Petitioner determined that she was unable to upload her request for hearing using DAB E-File, she had the option to submit the request by mail, but she did not do so until March 15, 2022, eight days after the filing deadline had lapsed.  DAB E‐File #5 at 11.  Petitioner’s inattention and neglect are not good excuses for her inaction.  I conclude that even if the regulation allowed me to extend the time for filing a request for hearing for good cause, good cause for Petitioner’s late filing has not been shown.

Accordingly, I conclude that I must dismiss Petitioner’s request for hearing pursuant to 42 C.F.R. § 1005.2(e)(1).

Page 5

III.   Conclusion

For the foregoing reasons, Petitioner’s request for hearing is dismissed.

Endnotes

1References are to the October 1, 2021 revision of the Code of Federal Regulations (C.F.R.) in effect at the time of the agency action, unless otherwise stated.

2The document filed as DAB E-File #1b reflects the disposition of Petitioner’s criminal case.  The documents filed as DAB E-File #1c and #4 are character references.
  
          /s/
        Keith W. Sickendick

                      Administrative Law Judge Back to top
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