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                              Toni De Lanoy, DAB No. 3127 (2024)
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Toni De Lanoy, DAB No. 3127 (2024)








  
  
    

  
      
Department of Health and Human Services 
    DEPARTMENTAL APPEALS BOARD
          Appellate Division





Toni De Lanoy
Docket No. A-24-12Decision No. 3127January 30, 2024

        
              
    

      **FINAL DECISION ON REVIEW OF****ADMINISTRATIVE LAW JUDGE DISMISSAL**

Petitioner Toni De Lanoy appeals an Administrative Law Judge (ALJ)’s dismissal of Petitioner’s request for hearing to contest the determination of the Inspector General (I.G.) to exclude Petitioner from participation in Medicare, Medicaid, and all federal health care programs under section 1128(a)(1) of the Social Security Act (Act), for 26 years.  *Toni De Lanoy*, Dismissal, ALJ Ruling No. 2024-1 (Oct. 3, 2023) (Dismissal).  The ALJ granted the I.G.’s motion to dismiss Petitioner’s untimely request for hearing.

An ALJ must dismiss a late request for hearing.  42 C.F.R. § 1005.2(e)(1).  Accordingly, we affirm the Dismissal as legally sound.

Legal Background

The Secretary of Health and Human Services (Secretary) must exclude from participation in Medicare, Medicaid, and all federal health care programs any individual who “has been convicted of a criminal offense related to the delivery of an item or service under [Medicare] or under any State health care program.”  Act § 1128(a)(1).  An exclusion imposed under section 1128(a) by the I.G. (acting on behalf of the Secretary in accordance with section 1128A(j)(2) of the Act) must be in effect for at least five years.  Act § 1128(c)(3)(B); 42 C.F.R. § 1001.102(a).  The I.G. may extend the five-year period based on the presence of any one or more of the “aggravating factors” in 42 C.F.R. § 1001.102(b).  Any one or more of the mitigating factors in 42 C.F.R. § 1001.102(c) may then be considered to reduce the lengthened exclusion period to no less than five years.

The I.G. must send written notice of an exclusion imposed under section 1128(a)(1) of the Act to the excluded individual identifying, among other things, the basis for and length of the exclusion and the factors, if any, the I.G. considered in determining an exclusion period longer than five years.  42 C.F.R. § 1001.2002(a), (c).  “The exclusion will be effective 20 days from the date of the notice.”  *Id*. § 1001.2002(b).

**Page 2**

The excluded individual may request a hearing before an ALJ on the issues of whether the I.G. had a basis for the exclusion, and whether an exclusion longer than five years is “unreasonable” in light of any applicable aggravating and mitigating factors.  Act § 1128(f)(1); 42 C.F.R.  §§ 1001.2007(a)(1), 1005.2(a).  The excluded individual must file a written request for a hearing no later than 60 days after receiving the exclusion notice.  42 C.F.R. §§ 1001.2007(b), 1005.2(c).  “The date of receipt [of the exclusion notice] will be presumed to be 5 days after the date of such notice unless there is a reasonable showing to the contrary.”  *Id.* § 1005.2(c).  An ALJ issues an “initial decision” on the request for hearing contesting the exclusion in accordance with 42 C.F.R. § 1005.20.  However, an ALJ “will dismiss a hearing request” that “is not filed in a timely manner.”  *Id*. § 1005.2(e)(1).

A party dissatisfied with the ALJ’s “initial decision” may appeal it to the Departmental Appeals Board (Board) within 30 days of the date of service of the decision.  42 C.F.R. § 1005.21(a).  The procedural regulations in 42 C.F.R. Part 1005, which govern this case, do not expressly address whether a party may request Board review of an ALJ’s dismissal of a request for hearing on procedural grounds.  However, the Board has reviewed on appeal ALJ dismissals of untimely requests for hearing.  *See, e**.**g., Cathy Statler*, DAB No. 2241 (2009) (affirming ALJ’s dismissal under 42 C.F.R. § 1005.2(e)(1)),*aff’d*, No. 7:09-CV-00387, 2011 WL 972584 (W.D. Va. Mar. 16, 2011); *Kris Durschmidt*, DAB No. 2345 (2010) (same).

Inspector General’s Exclusion

This section is drawn from the record of the ALJ proceedings and the Dismissal.

By notice dated February 28, 2023, the I.G. informed Petitioner that Petitioner was excluded from participation in Medicare, Medicaid, and all federal health care programs under section 1128(a)(1) of the Act based on Petitioner’s conviction, in the United States District Court for the Southern District of Georgia (court), of a criminal offense related to the delivery of an item or service under Medicare or a state health care program.  I.G. Ex. 1, at 1.  The I.G.’s notice also stated that the required minimum five-year exclusion period was extended to 26 years based on the following “aggravating circumstance(s)”:

(1) the acts resulting in Petitioner’s conviction, or similar acts, caused, or were intended to cause, a financial loss to a government agency or program or to one or more other entities of $50,000 or more;

(2) such acts were committed over a period of one year or more; and

(3) the court imposed a sentence that included incarceration.

*Id*.; *see* 42 C.F.R. § 1001.102(b)(1), (2), (5).  The I.G. noted that “[t]he court ordered [Petitioner] to pay approximately $6,450,400 in restitution” and sentenced Petitioner to

**Page 3**

30 months of incarceration; and that Petitioner’s criminal activities “occurred from about June 2016 to about July 2020.”  I.G. Ex. 1, at 1.

The I.G.’s notice also included an attachment, titled “**HOW TO APPEAL YOUR EXCLUSION**.”  I.G. Ex. 1, at 4 (bolded and capitalized in original; underlining removed here).  That attachment informed Petitioner of the right to appeal the exclusion by filing a written request for hearing with the Civil Remedies Division (CRD), through DAB E-File or by mail, “within 60 days of receiving the [I.G.’s] notice of exclusion,” which “will be presumed to be five (5) days after the date of [the] notice unless there is a reasonable showing to the contrary.”  *Id*. (citing 42 C.F.R. § 1005.2(c)).

Request for Hearing, ALJ Proceedings, and Dismissal

On May 12, 2023, Petitioner, represented by an attorney, filed a request for hearing through DAB E-File,1 challenging only the length of the exclusion and seeking a reduction of the exclusion period to five years.  Dismissal at 2; Request for hearing (RFH) at 1.  Petitioner asserted receipt of the exclusion notice on March 14, 2023.  RFH at 1 n.1.

The I.G. filed a brief, which included a motion to dismiss Petitioner’s request for hearing as untimely (Informal Brief of the Inspector General (I.G. Br.) at 1-2), and seven exhibits (I.G. Exs. 1-7), two of which were declarations (I.G. Exs. 6, 7).2  The I.G. stated that the I.G.’s office mailed the February 28, 2023 exclusion notice to Petitioner’s address of record that day in accordance with the office’s policy to mail exclusion notices on the day the notices are dated.  I.G. Br. at 1-2; I.G. Ex. 6, ¶¶ 3, 5c.  The I.G. also stated that if an exclusion notice is not returned to the I.G.’s office, then the office presumes that the notice was delivered to the address of record within five days of mailing, consistent with 42 C.F.R. § 1005.2(c) and the office’s policy.  I.G. Br. at 2; I.G. Ex. 6, ¶ 4.  The I.G. stated that the exclusion notice was not returned, and that the I.G.’s office did not receive any correspondence, including email, from Petitioner or Petitioner’s attorney, after February 28, 2023.  I.G. Br. at 2; I.G. Ex. 6, at ¶¶ 5d, 5e; I.G. Ex. 7, ¶ 4.  The I.G. asserted that Petitioner’s request for hearing was filed 8 days after May 4, 2023, the due date (65 days after February 28, 2023), “without evidence that the notice was not timely received.”  I.G. Br. at 2.  The I.G. thus asserted that Petitioner did not rebut the regulatory presumption and, accordingly, the ALJ must dismiss the late request for hearing under 42 C.F.R. § 1005.2(e)(1).  *Id*.

**Page 4**

Because the I.G.’s motion to dismiss raised the issue of whether the ALJ had authority to reach the merits of Petitioner’s appeal, on September 7, 2023, the ALJ ordered Petitioner to respond to the I.G.’s motion by September 21, 2023.  Dismissal at 3; Sept. 7, 2023 Order.

Petitioner timely filed a response brief opposing the I.G.’s motion to dismiss (P. Response), together with six exhibits (P. Exs. 1-6), one of which was Petitioner’s September 21, 2023 affidavit (P. Ex. 1).  Petitioner maintained that she received the I.G.’s February 28, 2023 exclusion notice on March 14, 2023, when Petitioner reviewed the notice that had arrived in the mail while Petitioner was out of town for work from February 27, 2023 to March 12, 2023.  P. Response at 2; P. Ex. 1, ¶¶ 3, 4, 7.  Petitioner stated that upon returning home around midnight on March 12, 2023, Petitioner spent most of the next day communicating with an automobile insurance company and a car repair shop concerning her son’s car, which had been “totaled” while she was out of town.  P. Response at 2; P. Ex. 1, ¶¶ 4, 5.  Petitioner maintained that she had no way of knowing when the exclusion notice arrived, but immediately after opening the mail and reviewing the exclusion notice on March 14, Petitioner electronically scanned the notice and emailed it to her attorney.  P. Response at 2; P. Ex. 1, ¶¶ 8, 9; P. Ex. 5 (copy of Petitioner’s email to two attorneys at the law firm, sent 6:16 PM on March 14, 2023, and referring to the attached I.G. exclusion letter).  According to Petitioner, because Petitioner “was in receipt of” the exclusion notice on March 14, 2023, Petitioner had 60 days from March 14, 2023 to timely request a hearing.  P. Response at 2.  However, Petitioner stated, since May 13, 2023 (60th day) was a Saturday, the deadline for requesting a hearing was May 15, 2023 (the following Monday).3 *Id*.  Accordingly, Petitioner asserted, the request for hearing was timely filed on May 12, 2023, and the ALJ “ha[d] the jurisdiction to hear [Petitioner’s] appeal.”  *Id*.

Noting that, in promulgating the exclusion regulations, the Secretary “expressly declined to permit a good cause exception to the timeliness requirement for hearing requests,” the ALJ explained that the ALJ had no authority to extend the 60-day deadline.  Dismissal at 3-4 (citing 57 Fed. Reg. 3298, 3323 (Jan. 29, 1992)).  However, the ALJ stated, 42 C.F.R. § 1005.2(c) permits the excluded individual to rebut the presumption of receipt of the exclusion notice five days after the date of the notice.  *Id*. at 3 (citing *Kenneth Schrager*, DAB No. 2366, at 4 (2011)), 5 (stating that the presumption “can be rebutted”).  The ALJ wrote:

**Page 5**

[The rebuttable presumption in section 1005.2(c)] favors an interpretation that an excluded individual receives the exclusion notice when it is delivered by the postal service.  When promulgating section 1005.2(c), a public comment recommended that the [I.G.] be required to send exclusion notices by certified mail and that receipt of the exclusion notice would be the date on the return receipt obtained from the postal service.  57 Fed. Reg. at 3319.  The Secretary rejected this suggestion in favor of the five-day presumption of receipt.  57 Fed. Reg. at 3320.

*Id*. at 5-6.

The ALJ also considered three ALJ decisions that “involve scenarios similar to [Petitioner’s] case” and which “indicate that receipt of the exclusion notice is the date the notice was delivered to the address on the notice.”  Dismissal at 6-7 (citing and discussing *Linda Marie Bonner*, DAB CR4796, at 2 (2017); *Alan K. Mitchell, M.D.*, DAB CR1614, at 6, 8 (2007); and *Sunil R. Lahiri, M.D.*, DAB CR296, at 24 (1993)).4

After also considering the I.G.’s position that Petitioner received the exclusion notice upon delivery and Petitioner’s assertion of receipt of the notice upon reviewing it on March 14, 2023, Dismissal at 5, the ALJ stated:

Petitioner does not assert that the exclusion notice was delivered later than five days after February 28, 2023.  Petitioner instead asserts that a business trip and personal matters delayed Petitioner’s review of the exclusion notice until March 14, 2023.  Petitioner then waited until 59 days from March 14, 2023, to file a four-page RFH.

I do not find the scenario presented by Petitioner as a sufficient showing that the five-day presumption of receipt has been rebutted. As explained above, receipt is delivery to a proper address for the excluded individual, rather than the date on which Petitioner eventually reads mail that has been delivered on an earlier date.

*Id*. at 7.  The ALJ also stated:

Even if I were to accept the principle that being away from the delivery address changed the date of receipt, I would consider receipt to be the date that the excluded individual returned to the delivery address and not the day that the excluded individual eventually opened mail that had accumulated.

**Page 6**

In this case, that would be March 12, 2023.  Even accepting such a date of receipt, Petitioner’s RFH is one day late.

*Id*. at 7 n.2.

On October 3, 2023, the ALJ granted the I.G.’s motion and dismissed Petitioner’s request for hearing as filed late.5  Dismissal at 1, 7.  The ALJ wrote:  “I am required to dismiss an untimely RFH, and I have no discretion not to do so.  I am without jurisdiction to adjudicate Petitioner’s appeal because it was untimely.”  *Id*. at 7 (citing *Ishtiaq A. Malik, M.D.*, DAB No. 2962, at 9 (2019), *aff’d*, No. 22-1706, 2023 WL 4787442 (4th Cir. July 27, 2023)); 42 C.F.R. § 1005.2(e)(1).

Board Proceedings

A notice of appeal of an ALJ’s “initial decision” on an I.G. exclusion is due 30 days from the date of service of the initial decision, but the Board may extend the appeal due date for a maximum of 30 days if the appellant asks the Board for an extension within the initial 30-day period and shows good cause for requesting the extension.  *See*42 C.F.R. § 1005.21(a).

The CRD transmitted the Dismissal to the parties through DAB E-File on October 3, 2023.  On November 30, 2023, after the expiration of the 30-day appeal period, Petitioner, by the attorney who represented Petitioner during the ALJ proceedings, filed, through DAB E-File, a brief captioned “Board Review of ALJ Dismissal” (P. Br. to Board), stating that Petitioner was seeking Board review of the ALJ’s dismissal “[p]ursuant to 42 C.F.R. §§ 498.80 and 498.82(a).”  P. Br. to Board at 1.  In doing so, however, Petitioner apparently relied on the notice titled “FURTHER REVIEW RIGHTS” (CRD Docket C-23-466, DAB E-File entry 8a), which CRD had transmitted to the parties with the Dismissal.  That notice discussed, among other things, the right to appeal an ALJ’s dismissal issued in a case governed by 42 C.F.R. Part 498 to the Board within 60 days of receipt of the dismissal in accordance with 42 C.F.R. §§ 498.80 and 498.82(a).  Because that notice addressed the right to appeal a dismissal under Part 498 regulations that do not apply to this I.G. exclusion case and Petitioner apparently relied on that notice in filing a notice of appeal with the Board within 60 days after October 3, 2023, the Presiding Board Member decided to accept the notice of appeal and gave the I.G. an opportunity to file a response brief.  *See* Dec. 4, 2023 Board letter at 2-3.  The

**Page 7**

Board also made clear that 42 C.F.R. Part 1005 governs this case6; referred to the *Guidelines* available on the Board’s website; and stated that although Part 1005 does not expressly prescribe the right to appeal an ALJ’s dismissal on procedural grounds, the Board has reviewed appeals of ALJ dismissals of late requests for hearing on I.G. exclusions.  *Id*. at 1-2.

The I.G. timely responded, urging the Board to affirm the Dismissal because the ALJ correctly dismissed Petitioner’s late request for hearing, which “left the [ALJ] without jurisdiction to adjudicate the appeal.”  I.G. Response Br. to Board at 1, 6, 10.  Petitioner did not request leave to file a reply brief, an opportunity the Board had provided.  *See* Dec. 4, 2023 Board letter at 3.

Standard of Review

The Board’s standard of review on a disputed issue of law is whether the ALJ’s dismissal is erroneous.  42 C.F.R. § 1005.21(h).  The Board’s standard of review on a disputed issue of fact is whether the ALJ’s dismissal is supported by substantial evidence on the whole record.  *Id*.; *see also**Statler*, DAB No. 2241, at 8 (citing 42 C.F.R. § 1005.21(h)).

Discussion

Before the Board, as earlier, Petitioner does not raise an argument about the I.G.’s mailing of the exclusion notice on February 28, 2023, and does not dispute that the notice was in fact delivered to her by the U.S. postal service.  *See* P. Br. to Board at 3.7  Petitioner continues to maintain that she “received” the exclusion notice on March 14, 2023, when she opened her mail after returning home late on March 12, 2023, and after attending to personal matters on March 13, 2023.  *Id*. at 4.  Petitioner asserts that the evidence she submitted to the ALJ “established” receipt of the exclusion notice on March 14, 2023.  *Id*. at 5.  Accordingly, Petitioner says, “the only issue at contention” was

**Page 8**

whether she had rebutted the presumption of receipt of the notice five days after February 28, 2023.  *Id*. at 3.  However, according to Petitioner, the ALJ nevertheless “spent considerable time discussing when a notice letter is received” and “largely left undiscussed” Petitioner’s successful rebuttal of the presumption.  *Id*. at 3; *see also id*. at 5.  Petitioner asserts that, having established receipt on March 14, 2023, she timely requested a hearing within 60 days thereafter.  *Id*. at 5.  Without having fully considered the evidence supporting rebuttal of the presumption, Petitioner says, “the ALJ could not have reached a decision that was supported by the substantial evidence on the record.”  *Id*.

***I. The ALJ’s determination that Petitioner, having failed to rebut the presumption of receipt of the exclusion notice five days after February 28, 2023, filed a request for hearing late is supported by substantial evidence in the record and is not erroneous.***As the ALJ correctly stated, to timely file a request for hearing, an excluded individual must file a request for hearing no later than 60 days after receiving the exclusion notice.  Dismissal at 3 (citing 42 C.F.R. §§ 1001.2007(b), 1005.2(c)).  Section 1005.2(c) presumes receipt of the exclusion notice five days after the date of the notice.  In explaining the decision to promulgate the regulation that presumes receipt of exclusion notices sent by regular U.S. mail, the I.G. stated:

[I]t is not administratively feasible for the [I.G.] to await the return of certified mail receipt forms before proceeding to impose exclusions.  We believe that a presumption that notices are received within 5 days after the date on the notice is both reasonably and legally sound.  The courts customarily use presumptions of this nature so that parties may consider particular documents sent in the course of litigation to have been received by a date certain.

57 Fed. Reg. at 3320; *see* Dismissal at 5-6 (citing preamble); *Schrager*, DAB No. 2366, at 4 (citing preamble).  The presumption, however, may be rebutted by “a reasonable showing to the contrary.”  *See* 42 C.F.R. § 1005.2(c); *Schrager* at 4 (Section 1005.2(c) “takes into account the possibility of exceptions, providing that a recipient of an exclusion notice can rebut the presumption that he received it five days after the notice date by making a ‘reasonable showing to the contrary.’” (quoting 42 C.F.R. § 1005.2(c)).

In accordance with section 1005.2(c), Petitioner’s request for hearing was due May 4, 2023, 65 days after February 28, 2023.  The question, then, is whether Petitioner made “a reasonable showing” of receipt of the exclusion notice on March 14, 2023, thereby

**Page 9**

rebutting the presumption of receipt five days after February 28, 2023,8 which would make Petitioner’s May 12, 2023 request for hearing timely.

Citing ALJ decisions, Petitioner herself acknowledges that rebuttal of the presumption “must be made through demonstration of facts calling the presumed receipt of the notice directly into question, and not be mere speculation or self-serving denials of receipt” even if given under oath and, further, that speculative assertions of irregularities or delays in the delivery of mail are not sufficient to rebut the presumption.  P. Br. to Board at 3 (citing *Andrew M. Perez*, DAB CR1371 (2005); *Lahiri*, DAB CR296;*George P. Rowell*, DAB CR974 (2002)).  Petitioner states that “petitioners are permitted to provide documentary evidence to assist in making a ‘reasonable showing’ to support the assertion that they received the Notice of Exclusion letter outside the presumed 5-day period.”  *Id*. at 3 (citing *Dulal Bhattacharjee, M.D.*, DAB CR1107 (2003)).  According to Petitioner, unlike the petitioners in *Mitchell*, DAB CR1614 and *Bonner*, DAB CR4796 (two ALJ decisions that the ALJ who presided over Petitioner’s case found persuasive, *see* Dismissal at 6-7), Petitioner “provide[d] significant documentary evidence to support the proposition that Petitioner did not obtain receipt of the Notice of Exclusion until March 14, 2023 . . . .”  *Id*. at 4.  However, Petitioner asserts that the ALJ did not adequately consider and address her arguments and evidence supporting rebuttal of the presumption.  *Id*. at 5.

We disagree with Petitioner that the ALJ did not adequately consider and address Petitioner’s arguments and evidence.  The ALJ addressed them in some detail.  *See* Dismissal at 5 (discussing Petitioner’s arguments and P. Exs. 1-5).  We read the Dismissal to mean that the ALJ found Petitioner’s evidence, including her attestations, credible and reliable.  We have no reason not to defer to this ALJ assessment of the evidence.  *See**Gary Grossman*, DAB No. 2267, at 7 (2009) (When the Board evaluates whether an ALJ’s findings are supported by substantial evidence, the Board’s “role is not to re-weigh the evidence or to substitute its evaluation of the evidence for that of the ALJ.”); *Barry D. Garfinkel, M.D.*, DAB No. 1572, at 6 (1996) (The Board “generally accord[s] considerable deference to an ALJ’s judgment when it depends on weighing the evidence presented and assessing the credibility of witnesses . . . .”), *aff’d*, No. 3-96-604 (D. Minn. June 25, 1997).

However, the ALJ also found that Petitioner’s evidence was not sufficient to rebut the presumption because Petitioner did “not assert that the exclusion notice was delivered later than five days after February 28, 2023,” but instead asserted “that a business trip and

**Page 10**

personal matters delayed Petitioner’s review of the exclusion notice until March 14, 2023.”  Dismissal at 7.  The ALJ stated that “receipt is delivery to a proper address for the excluded individual, rather than the date on which Petitioner eventually reads mail that had been delivered on an earlier date.”  *Id*.

We have no reason to disagree with the ALJ.  Essentially, Petitioner’s position, as the ALJ stated, is that “an excluded individual only receives an exclusion notice when the excluded individual reads the exclusion notice, regardless as to when the exclusion notice was delivered to the excluded individual’s address.”  Dismissal at 5.  Such a position disregards the presumed *delivery* *of mail sent through the U.S. postal service* within five days in favor of defining the date of “receipt” of such mail as the date on which the intended recipient opens and reads that mail.  *But Petitioner cites no legal authority that supports, and offers no rational basis for, such a position.*  If “receipt” for purposes of section 1005.2(c) could be based on the date a recipient reviews the notice, then there would be no need for presumption of receipt, and certainly no need for presumption of receipt by a certain number of days after the notice was mailed, because the recipient’s review of the notice, in every instance, would occur after actual delivery of the notice.

Moreover, in our view, Petitioner’s position that she received the exclusion notice on March 14, 2023 is not much different from simply denying receipt on or before the presumed date of receipt.  The Board has held that a denial of receipt of an exclusion notice, without “sufficient explanation and corroborating evidence,” is insufficient to rebut the presumption of receipt within five days in accordance with section 1005.2(c).  *Schrager*, DAB No 2366, at 4.  Petitioner does allege receipt on March 14, 2023, through attestation in her affidavit.  P. Ex. 1, at ¶ 7 (“On March 14th, 2023, while sorting through the mail from while I was out of town, I discovered an [I.G.] exclusion letter addressed to me.”).  However, the Board has determined that an attestation or sworn statement itself was insufficient to rebut the presumption, stating:

Consistent with federal court decisions addressing an analogous regulatory standard, the Board previously has held that a sworn statement by a petitioner alone is insufficient to rebut the regulatory presumption that the notice was received five days after the date on the notice.  [*Grossman*,] DAB No. 2267; *see also McCall v. Bowen*, 832 F.2d 862, 864 (5th Cir. 1987); *Pettway ex rel. Pettway v. Barnhart*, 233 F.Supp.2d 1354, 1356 (S.D. Ala. 2002) (sworn statements denying receipt did not constitute “reasonable showing” by Social Security claimants sufficient to rebut the presumption of receipt of Social Security determination five days after the date on the notice pursuant to Social Security regulations).  Indeed, the rebuttable presumption would serve little purpose if an affidavit denying receipt constituted a reasonable showing that timely receipt had not occurred.  The presumption of delivery may, however, be rebutted when a petitioner’s statement denying receipt is accompanied by sufficient

**Page 11**

explanation and corroborating evidence.  For example, in*Letantia Bussell, M.D.*, DAB No. 2196, at 8 (2008), which involved the analogous presumption of receipt at section 498.22(b)(3), the Board held that evidence in the case record that mail had been returned was sufficient to substantiate the petitioner’s assertion that she never received it.  *See also* *Chiappa v. Califano*, 480 F.Supp. 856 (S.D.N.Y. 1979) (on appeal of Social Security determination plaintiff provided evidence that he had temporarily moved and that the determination notice was forwarded to his new address; affidavit of railroad clerk who delivered the notice supported the alleged delayed date of receipt at the forwarding address; plaintiff filed his complaint within five days of his alleged receipt of the notice, showing a diligent exercise of rights).

*Schrager*, DAB No. 2366, at 4-5.  The evidence, including Petitioner’s affidavit, shows that Petitioner first learned about and reviewed the exclusion notice on March 14, 2023, not that Petitioner received it that day.  Petitioner has not offered corroborating evidence to show that she in fact received the exclusion notice after the presumed date of receipt (delivery).

Petitioner also takes issue with the ALJ’s statement that even if the ALJ were to accept that “being away from the delivery address changed the date of receipt,” the ALJ “would consider receipt to be the date that the excluded individual returned to the delivery address and not the day that the excluded individual eventually opened mail that had accumulated.”  P. Br. to Board at 5 (quoting Dismissal at 7 n.2).  Petitioner asserts that the ALJ did not “explain the reasoning why [the ALJ] would accept March 12, 2023” (date on which Petitioner returned home) as the date of receipt, and “ignore[d]” evidence that Petitioner returned home late that day and did not have an opportunity to review her mail until March 14, 2023.  *Id*.

To be clear, the ALJ did not affirmatively state the ALJ determined that under the circumstances presented, “receipt” for purposes of section 1005.2(c) is the date on which the intended recipient of the notice returns to the delivery address.  The ALJ stated only that even assuming Petitioner received the notice on March 12, 2023, the request for hearing was still filed late.  Dismissal at 7 n.2.  That aside, Petitioner’s argument, again, presupposes that, for purposes of section 1005.2(c), the date of receipt is the date on which the excluded individual reviews the exclusion notice, without citing any authority.

In sum, Petitioner showed only that she *reviewed* the exclusion notice after the presumed date of receipt, which is different from showing that she *received* the notice after the presumed date of receipt.  As the ALJ determined, and we agree, Petitioner therefore did not rebut the presumption of receipt five days after February 28, 2023.  Having failed to rebut the presumption, Petitioner’s request for hearing, filed on May 12, 2023, after the 65th day from February 28, 2023, was, as the ALJ concluded, late.

**Page 12**

***II. The ALJ was required to dismiss Petitioner’s late request for hearing under 42 C.F.R. § 1005.2(e)(1).***When, as here, an excluded individual files a request for hearing late, the ALJ “will dismiss” the request.  42 C.F.R. § 1005.2(e)(1); *see also Schrager*, DAB No. 2366, at 6 (upholding the ALJ’s dismissal of late request for hearing, which was “required” by regulation); *Malik*, DAB No. 2962, at 9 (same); *Statler*, DAB No. 2241, at 12 (same); *Grossman*, DAB No. 2267, at 5 (same); *Boris Sachakov, M.D.*, DAB No. 2707, at 4 (2016) (agreeing with the ALJ’s interpretation of the words “will dismiss” in the absence of stated exceptions in the regulation to mean that the regulation mandates dismissal of late request for hearing).

The ALJ thus correctly stated that the ALJ had no discretion not to dismiss a late request for hearing.  Dismissal at 7.  The ALJ also correctly stated that the Part 1005 regulations do not permit an ALJ to extend the 60-day deadline in 42 C.F.R. §§ 1001.2007(b) and 1005.2(c) for good cause.9 *Id*. at 3; *see John Maiorano, R. Ph. v. Thompson*, No. 04-2279, 2008 WL 304899, at *3 (D.N.J. Feb. 1, 2008) (stating that there is no “good cause exception” to the “strict filing deadline”); *see also* *Durschmidt*, DAB No. 2345, at 2 (“The regulatory choice to have no good cause exception, given the relatively long 60-day appeal period, has already been made” and the Board “is bound by it.”).  Accordingly, the ALJ could not have considered Petitioner’s statements about having been out of town and the personal matters to which Petitioner had to attend after returning home as an explanation of good cause to extend the deadline for requesting a hearing.10

**Page 13**

**Conclusion**

We affirm the Dismissal.

Endnotes

1  Petitioner’s request for hearing is the first entry in the DAB E-File record for CRD Docket C-23-466.  The request for hearing was uploaded to that docket on May 12, 2023.

2  I.G. exhibits 6 and 7, which are cited in this paragraph, are, respectively, the August 29, 2023 declaration of A.N., Senior Counsel, Office of Counsel to the Inspector General, who processed Petitioner’s exclusion, and the August 30, 2023 declaration of J.M.F., a Reviewing Official in the I.G.’s office, who personally reviewed the I.G. office’s email inbox to search for emails from Petitioner or Petitioner’s attorney.

3 *See* 42 C.F.R. § 1005.12(a), which states that, “[i]n computing any period of time under this part or in an order issued thereunder, the time begins with the day following the act, event or default, and includes the last day of the period unless it is a Saturday, Sunday or legal holiday observed by the Federal Government, in which event it includes the next business day.”  *See also*the Board’s*Guidelines – Appellate Review of Decisions of Administrative Law Judges in Cases to Which Procedures in 42 C.F.R. Part 1005 Apply* (*Guidelines*), “Additional Rules Applicable to Both Electronic and Non-Electronic Filing,” ¶ (a).  The *Guidelines* are accessible at:  https://www.hhs.gov/about/agencies/dab/different-appeals-at-dab/appeals-to-board/guidelines/procedures/index.html?language=en.

4 An ALJ is not bound to follow another ALJ’s decision.  *See Stephen C. White, M.D.*, DAB No. 3116, at 16 n.15 (2023) (citing *Cornelius M. Donohue, DPM*, DAB No. 2888, at 7 (2018)).  However, an ALJ certainly could consider as appropriate decisions issued by other ALJs, as the ALJ in this case did.

5 The Dismissal does not cite 42 C.F.R. § 1005.2(e)(1), which states that an ALJ “will dismiss” a request for hearing that “is not filed in a timely manner.”  Nevertheless, it is apparent that the ALJ dismissed the request for hearing in accordance with this regulation, and neither party raises any argument about the regulatory basis for the Dismissal.

6 The ALJ notified the parties that the procedural regulations in 42 C.F.R. Part 1005 governed this case.  *See* ALJ’s Standing Order (transmitted on May 15, 2023) at 1.  And Petitioner’s brief submitted to the ALJ indicates awareness that the Part 1005 procedural regulations apply.  *See* P. Response at 1 (acknowledging the regulatory presumption in section 1005.2(c)).  Nevertheless, the Presiding Board Member decided to accept the notice of appeal filed after the applicable 30-day period, but within the 60-day period to which the CRD’s notice referred, in consideration of the circumstances of this case.

7 Petitioner’s attorney does state that the attorney’s law firm represented Petitioner during the criminal proceedings, which culminated in the conviction on which the exclusion was based, but the I.G. did not provide the firm a copy of the February 28, 2023 exclusion notice.  P. Br. to Board at 4 n.2.  A.N. attested that the I.G.’s office sent a “notice of intent letter dated August 26, 2022” to Petitioner’s address, that the attorney responded to that letter on September 26, 2022, and the I.G. then sent the February 28, 2023 exclusion notice to Petitioner’s address.  I.G. Ex. 6, ¶¶ 5a-5c.  However, Petitioner does not assert that the I.G.’s exclusion notice was inadequate or defective because the I.G. sent it to Petitioner’s address of record (*see* I.G. Ex. 1, at 1; P. Ex. 1, at ¶ 4) rather than to the attorney, or to both Petitioner and her attorney.

8 We note that five days after Tuesday, February 28, 2023, was Sunday, March 5, 2023.  The next day, Monday, March 6, 2023, was not a federally observed holiday and thus the U.S. Postal Service presumably delivered mail that day.  But it is possible that the I.G.’s notice was delivered on or before Saturday, March 4, 2023.  In any event, the 65th day after February 28, 2023 was Thursday, May 4, 2023.

9 In contrast, other regulations that govern cases that come before the ALJs in CRD and the Board do recognize “good cause” as a basis for extending appeal due dates.  *See, e.g.*, 42 C.F.R. §§ 498.40(c), 498.82(a); 21 C.F.R. §§ 17.9(c), 17.47(b).

10 Petitioner consistently maintained that upon learning, on March 14, 2023, that the I.G. had issued a notice of exclusion, Petitioner informed her attorney about the notice without delay.  P. Ex. 1, at ¶ 9; P. Br. to Board at 4.  However, as the ALJ stated, Petitioner “waited until 59 days from March 14, 2023” to request a hearing.  Dismissal at 7.  To acknowledge the ALJ’s point, we note that March 14, 2023 was more than six weeks before the due date calculated in accordance with the presumption rule in section 1005.2(c).  Petitioner does not address what, if anything, impeded Petitioner’s ability to preserve her right to ALJ review of the merits of her challenge to the I.G.’s exclusion within that period.  In any case, even assuming Petitioner had reasons for why she did not or was unable to do so, such reasons could not be considered as good cause because the Part 1005 regulations do not give an ALJ discretion to extend a due date for requesting a hearing based on good cause.  Moreover, those 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.”  *Schrager*, DAB No. 2366, at 6; *see also* *Michael Bozelly Jones, M.D.*, DAB No. 3113, at 1 n.1 (2023).
  
          /s/
        Jeffrey Sacks

                      Board Member
          /s/
        Constance B. Tobias

                      Board Member
          /s/
        Susan S. Yim

                      Presiding Board Member Back to top
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