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                              Angela Biesecker, DAB CR5664 (2020)
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Angela Biesecker, DAB CR5664 (2020)








  
  
    

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





Angela Biesecker
	(OI File No. H-16-40570-9),
	Petitioner,
v.
The Inspector General,
	U.S. Department of Health and Human Services.
Docket No. C-20-428Decision No. CR5664July 27, 2020

        
              
    

      DECISION
The request for hearing of Petitioner 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 (IG) notified Petitioner by letter dated April 29, 2016, 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 IG 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.  The IG stated that the exclusion was due to Petitioner’s conviction in the Court of Common Pleas of Berks County, Pennsylvania, of a criminal offense related to the delivery of an item or service
Page 2
under Medicare or a state health care program.  IG Exhibit (Ex.) 1.  Petitioner’s five-year exclusion began on May 19, 2016, and will expire on May 18, 2021.
Petitioner filed a request for hearing (RFH) on March 30, 2020.  The case was assigned to me for hearing and decision.  A prehearing conference was convened on April 16, 2020, the substance of which is memorialized in my Prehearing Conference Order and Schedule for Filing Briefs and Documentary Evidence issued the same day (Prehearing Order).  During the prehearing conference, the IG requested to file a motion to dismiss prior to case development.  I set a briefing schedule for a motion to dismiss by the IG.  Prehearing Order ¶ 5.
The IG filed a motion to dismiss on May 29, 2020, with a supporting memorandum and IG Exs. 1, 2, and 3.  On June 15, 2020, Petitioner filed a response in opposition to the IG motion (P. Br.) with three documents filed as Departmental Appeals Board Electronic Filing System (DAB E-File) ## 8a, 8b, and 8c.  Petitioner previously filed supporting documents as DAB E-File ## 3 and 5.  Petitioner filed additional documents on June 17, June 30, and July 14, 2020 as DAB E-File ## 9, 10, and 11.  I have reviewed all documents submitted by both parties but none are admitted as evidence as I have no jurisdiction over this case and dismissal is required.
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 IG mailed Petitioner a letter dated April 29, 2016, notifying Petitioner that she was being excluded from Medicare, Medicaid, and all federal health care programs.  IG Ex. 1.  Pursuant to 42 C.F.R. § 1005.2(c), there is a rebuttable presumption that the April 29, 2016 notice was received by Petitioner five days later on Wednesday, May 4, 2016.  Petitioner does not allege that she received the April 29, 2016 IG notice after May 4, 2016.  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, July 3, 2016.  Monday, July 4, 2016, was a federal holiday.  Therefore, the deadline for Petitioner to file her request for hearing was the next business day, Tuesday, July 5, 2016.  42 C.F.R. § 1005.12(a).
There is no dispute that Petitioner filed her request for hearing by DAB E-File on March 30, 2020.  To be timely filed, Petitioner’s request for hearing had to be filed not later than July 5, 2016, but she did not file the request for hearing until March 30, 2020, nearly four years late.  Because Petitioner’s request for hearing was nearly four years late, the IG moved that this case be dismissed.
Petitioner does not deny that she received the IG notice dated April 29, 2016.  Petitioner offers no evidence and makes no allegation to rebut the presumption that she received the IG notice after May 4, 2016.  P. Br., RFH.  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).
Accordingly, I conclude that I have no discretion and 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 2015 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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