Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD

Civil Remedies Division

Tonya Ann Sohm
(a.k.a. Tonya Ann Clausen),

Petitioner
Vv.
The Inspector General.
Docket No. C-10-373
Decision No. CR2139

Date: May 28, 2010

DECISION

Petitioner, Tonya Ann Sohm, asks review of the determination of the Inspector General
(LG.) to exclude her for five years from participation in the Medicare, Medicaid, and all
federal health care programs under section 1128(a)(1) of the Social Security Act. For the
reasons discussed below, I find that the I.G. is authorized to exclude Petitioner and that
the statute mandates a minimum five-year exclusion.

I. Background

Petitioner was a registered nurse employed by a Medicare-certified long term care
facility, Willow Dale Wellness Village, located in Battle Creek, Iowa. I.G. Exs. 4, 11.
She stole from her employer prescription drugs (hydrocodone) that had been ordered for
facility residents. I.G. Exs. 4, 10, 11, 12, 13, 14, 15, 16. She was charged with obtaining
a Schedule II controlled substance, a felony, and possession of a controlled substance, a
serious misdemeanor. I.G. Ex. 5. On January 2, 2008, she pled guilty in an Iowa State
Court to the misdemeanor count of possession of a controlled substance. I.G. Exs. 6, 7.
The court entered an order of deferred judgment. LG. Ex. 9.
In a letter dated December 31, 2009, the I.G. advised Petitioner that, because she had
been convicted of a criminal offense related to the delivery of an item or service under
the Medicare or state health care program, the I.G. was excluding her from participation
in Medicare, Medicaid, and all federal health care programs for a period of five years.
CMS Ex. 1. Section 1128(a)(1) of the Social Security Act (Act) authorizes such
exclusion. I.G. Ex. 1.

The parties agree that an in-person hearing is not required and that the matter may be
resolved based on written submissions. I.G. Br. at 8; P. Br. at 7. The parties have
submitted their briefs. With its brief, the IG. submitted sixteen exhibits (I.G. Exs. 1-16).
Petitioner submitted no additional exhibits. The LG. filed a reply brief.

Although Petitioner objects to the purposes for which some of the I.G.’s exhibits have
been submitted (see discussion below), she has not objected to the admission of any
specific document. P. Br. at 3. In the absence of any specific objections, I admit into
evidence IG. Exs. 1-16.

II. Issue

The sole issue before me is whether the I.G. has a basis for excluding Petitioner from
program participation. Because an exclusion under section 1128(a)(1) must be for a
minimum period of five years, the reasonableness of the length of the exclusion is not an
issue. Act § 1128(c)(3)(B); 42 C.F.R. § 1001.2007(a)(2).

II. Discussion

Petitioner must be excluded for five years, because she was
convicted of a criminal offense related to the delivery of an
item or service under the Medicare or a state health
program, within the meaning of section 1128(a)(1) of the
Social Security Act. 1

Section 1128(a)(1) of the Act requires that the Secretary of Health and Human Services
exclude an individual who has been convicted under federal or state law of a criminal
offense related to the delivery of an item or service under Medicare or a state health care
program.” 42 C.F.R. § 1001.101.

' [make this one finding of fact/conclusion of law.

> The term “state health care program” included a state’s Medicaid program. Act §
1128(h)(1); 42 C.F.R. § 1320a-7(h)(1).
Petitioner concedes that she was convicted of a criminal offense within the meaning of
the statute and regulations. P. Br. at 1. She argues that she is not subject to exclusion,
because the LG. has not established that her crime was “related to” the delivery of a
healthcare item or service under Medicare or any state health care program. An offense
is related to the delivery of an item or service under Medicare or a state health care
program if there is “a nexus or common-sense connection” between the conduct giving
rise to the offense and the delivery of the item or service. Lyle Kai, R.Ph., DAB No.
1979 (2005); Berton Siegel, D.O., DAB No. 1467 (1994).

Petitioner objects to my consideration of any evidence “submitted for the purpose of
meeting the ‘related to’ requirement” other than the information (I.G. Ex. 5), plea
agreement (I.G. Ex. 6), guilty plea and waiver (I.G. Exs. 7, 8), and the criminal court’s
order deferring judgment (I.G. Ex. 9). In Petitioner’s view, I should consider only those
exhibits that “set forth the offense that served as the basis of the deferred judgment and
the factual basis for her plea to that offense.” P. Br. at 3. So long as I exclude the
remaining extraneous evidence, Petitioner argues, the I.G. will not be able to show a
connection between her offense and Medicare or a state health care program. With her
plea, Petitioner admitted only that, on October 5, 2007, she possessed hydrocodone
without a valid prescription, and, according to Petitioner, the I.G. is not able to tie the
specific drugs in her possession on that day to any program beneficiary.

I note first that Petitioner’s view of the evidence I may consider is unacceptably narrow.
It is well-settled that the I.G. may rely on extrinsic evidence to explain the circumstances
underlying a conviction. The regulations specifically provide that evidence of “crimes,
wrongs, or acts other than those at issue in the instant case is admissible in order to show
motive, opportunity, intent, knowledge, preparation, identity, lack of mistake, or
existence of a scheme.” 42 C.F.R. §1005.17(g). See Narendra M. Patel, DAB No. 1736
(2000); Tanya A. Chuoke, R.N., DAB No. 1721 (2000); Bruce Lindberg, D.C., DAB No.
1280 (1991).

Here, extrinsic -- and admissible -- evidence establishes that Petitioner was engaged in a
scheme to steal drugs from the supply her employer maintained for facility residents. I
need not address whether stealing drugs from a facility housing Medicare and Medicaid
beneficiaries is, by itself, sufficient to establish relatedness, because the I.G. has directly
linked to particular program beneficiaries drugs that she stole on October 5, 2007.

As the evidence establishes, the facility generally stored medications that had been
ordered and prescribed for specific residents (although it also maintained “emergency
kits” of single doses of prescription drugs). I.G. Ex. 11. On October 5, 2007, facility
staff found hidden in the medication room full and empty hydrocodone medication
cassettes belonging to current and former residents. The narcotic had not been counted or
recorded when it arrived at the facility. Petitioner admitted to the facility administrator
and the director of nursing that she had been diverting the drugs for her personal use.

1.G. Ex. 12, at 3. Among the drugs she took on October 5, 2007, were 16 tablets from a
prescription cassette that had been ordered for E.M., a Medicaid beneficiary, and 16
additional tablets from a cassette that had been ordered for V.C., also a Medicaid
beneficiary. I.G. Ex. 13, at 1 (Judisch Decl. §§ 3, 4,5, 6). In addition, the facility’s
assistant administrator identified four Medicare beneficiaries and two additional
Medicaid beneficiaries from whom Petitioner stole drugs. I.G. Ex. 11, at 2 (Johnson
Decl.). I find these facts sufficient to create a nexus between Petitioner’s crime and the
Medicare and Medicaid programs.

IV. Conclusion

For these reasons, I conclude that the I.G. properly excluded Petitioner from participation
in Medicare, Medicaid and all federal health care programs, and I sustain the five-year
exclusion.

/s/
Carolyn Cozad Hughes
Administrative Law Judge


Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD

Civil Remedies Division

Edward J. Yablecki, Jr.,
Petitioner,
Vv.
The Inspector General.
Docket No. C-10-479
Decision No. CR2138

Date: May 24, 2010

DECISION

Petitioner, Edward Yablecki, Jr., asks review of the Inspector General’s (1.G.’s)
determination to exclude him from participation in the Medicare, Medicaid, and all
federal health care programs under section 1128(a)(4) of the Social Security Act. The
1.G. has moved to dismiss, arguing that the appeal is untimely. I agree and dismiss
Petitioner’s appeal.

Petitioner’s hearing request must be dismissed pursuant to
42 C.F.R. § 1005.2(e)(1), because it was not timely filed.'

Ina letter dated May 31, 2007, the LG. advised Petitioner that, based on his conviction
“of a criminal offense related to unlawful manufacture, distribution, prescription, or
dispensing of a controlled substance,” he was excluded from participation in Medicare,
Medicaid, and all federal health care programs for a period of five years. With the notice
letter, the I.G. sent Petitioner an explanation of his appeal rights: he was entitled to a
hearing before an administrative law judge if he filed a written request for review within
sixty days after receipt of the notice. CMS Ex. | at 3. Petitioner filed his hearing request
two years and eight months later, on February 16, 2010 (which the Civil Remedies
Division (CRD) received on February 22, 2010).

' [make this one finding of fact/conclusion of law.
The I.G. has filed a motion to dismiss, accompanied by two exhibits (I.G. Exs. 1-2).
Petitioner has filed a response. Although no exhibits accompany that response, he
alludes to an unmarked document (“Driver License Checklist”) submitted on March 30,
2010, in response to my order summarizing the prehearing conference call. I will accept
that two-page document as Petitioner’s Exhibit 1 (P. Ex. 1)

The regulations governing these proceedings grant me virtually no discretion. An
aggrieved party must request a hearing within sixty days after receiving notice of the
exclusion. 42 C.F.R. § 1001.2007(b). The date of receipt is presumed to be five days
after the date of the notice unless there is a reasonable showing to the contrary. 42
C.F.R. § 1005.2(c). The regulations include no good-cause exceptions for untimely
filing, providing that the ALJ will dismiss a hearing request that is not filed in a timely
manner. 42 C.F.R. § 1005.2(e)(1); John Maiorano, R. Ph., v. Thompson, Civil Action
No. 04-2279, 2008 WL 304899, at *3-4 (D. N.J. 2008).

I held a prehearing conference in this matter on March 16, 2010. At that time, Petitioner
told me that he received the notice letter in a timely fashion but decided not to file a
hearing request until February 2010. I explained that the regulations compelled me to
dismiss an untimely request. Order and Schedule for Filing Submissions (March 16,
2010); See 1.G. Br. at 7. Following the call, he sent e-mail correspondence to my CRD
staff attorney (which staff copied to I.G. counsel), saying that he had just noticed that the
1.G. notice letter was mailed to his parents’ house, although he “would frequently pick up
mail at my parents’ place which was deemed more ‘junk mail.’” Then he wrote that he
“very infrequently picked up” mail from his parents’ house. LG. Ex. 2 at 1.

In response to my order summarizing the prehearing conference, Petitioner objected to
my characterization of his admission and claimed that “the letter was not mailed to the
correct address and not received in time to respond to it procedurally.” He attached a
document to show that, from May 2006 until April 2008, he lived at a different address in
Spring Hill Florida. P. Ex. 1.

I do not doubt that the notice letter was mailed to Petitioner’s parents’ house. However,
this does not mean that he did not receive it timely, particularly since, by his own
admission, he picked up his mail from them. Thus, I find that Petitioner’s evidence and
argument fall far short of establishing the “reasonable showing” necessary to overcome
the presumption that he timely received the I. G. notice. I therefore have no discretion,
and I dismiss his request for a hearing pursuant to 42 C.F.R. § 1005.2(e)(1).

/s/
Carolyn Cozad Hughes
Administrative Law Judge


Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD

Civil Remedies Division

Rebecca J. Pesta,
Petitioner,
Vv.
The Inspector General.
Docket No. C-10-372
Decision No. CR2132

Date: May 14, 2010

DECISION

I sustain the determination of the Inspector General (I.G.) to exclude Petitioner, Rebecca
J. Pesta, from participating in Medicare and other federally-funded health care programs
for a term that is for not less than the period that Petitioner’s State license to provide
health care is suspended.

I. Background

Petitioner is a certified nursing assistant (CNA) in the State of Washington. The I.G.
notified Petitioner that she was being excluded from participating in Medicare and other
federally-funded health care programs, because her license to practice as a CNA in
Washington had been suspended for reasons bearing on her professional competence or
performance. Petitioner requested a hearing, and the case was assigned to me for a
hearing and a decision.

The I.G. submitted a brief and two proposed exhibits, which are identified as I.G. Ex. 1
and 1.G. Ex. 2. Petitioner advised my office that she was not filing a reply to the I.G.’s
submission. I receive into evidence I.G. Ex. | and I.G. Ex. 2.
IL. Issue, findings of fact and conclusions of law
A. Issue

The issue in this case is whether the I.G. is authorized to exclude Petitioner for a period
that is at least coterminous with the suspension of her State license to provide health care.

B. Findings of fact and conclusions of law
I make the following findings of fact and conclusions of law.

I. The I.G. may exclude any individual whose license to provide health
care has been revoked or suspended for reasons bearing on that
individual’s professional competence or performance. The minimum
period for such exclusion is the length of time during which the
license is revoked or suspended.

Section 1128(b)(4) of the Social Security Act (Act) authorizes the I.G. to exclude any
individual whose license to provide health care has been revoked, suspended, or
otherwise lost for reasons bearing on, among other things, that individual’s professional
competence or performance. Exclusion is permitted by this section when an individual
surrenders his or her license while a formal disciplinary proceeding is pending before a
State licensing authority, and the proceeding concerns the individual’s professional
competence or performance. Act § 1128(b)(4)(B). The minimum term of an exclusion
imposed pursuant to section 1128(b)(4) shall be for the same period as the license is
revoked, suspended, or otherwise lost. 42 C.F.R. § 1001.501(b)(1).

2. Petitioner’s license to provide health care was suspended for reasons
bearing on her professional competence or performance.

The unchallenged facts of this case establish that Petitioner was licensed as a CNA in the
State of Washington. The State of Washington Department of Health, Secretary of
Health (State Licensing Agency), initiated a formal disciplinary proceeding against
Petitioner’s license, charging Petitioner with improper sexual relations with a patient.
1G. Ex. 1; 1.G. Ex. 2. Petitioner settled the matter by stipulating that she had engaged in
an improper sexual relationship with a patient and by agreeing to a suspension of her
license for a period of at least two years. LG. Ex. 1.

There can be no question that Petitioner’s license was suspended for reasons bearing on
her professional competence and performance. The State Licensing Agency found that
Petitioner had committed unprofessional conduct. I.G. Ex. 1.
3. The LG. is authorized to exclude Petitioner at least until Petitioner’s
State license suspension is ended.

The unchallenged facts that I describe above meet all of the criteria for exclusion
pursuant to section 1128(b)(4) of the Act. The State Licensing Agency suspended
Petitioner’s license to practice health care for reasons bearing on her professional
competence or performance. That suspension was pursuant to an agreement made to
settle a formal disciplinary proceeding. Act § 1128(b)(4)(B).

The I.G. excluded Petitioner at least until the suspension of her license to provide health
care is ended. That is entirely consistent with the I.G.’s authority pursuant to 42 C.F.R.
§ 1001.501(b)(1).

/s/
Steven T. Kessel
Administrative Law Judge


Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD

Civil Remedies Division

Elinor Schottstaedt, M.D.,
(Provider Enrollment Reconsideration No.: 4409065025000),

Petitioner
Vv.
Centers for Medicare & Medicaid Services.
Docket No. C-10-292
Decision No. CR2131
Date: May 14, 2010
DECISION

The request for hearing filed by Petitioner, Elinor Schottstaedt, M.D., is dismissed
pursuant to 42 C.F.R. § 498.70(c), because it was not timely filed. Petitioner has not
stated good cause to extend the time for filing. Pursuant to 42 C.F.R. § 498.72, I may
vacate the dismissal of a request for hearing if a party files a written request within 60
days of receipt of this decision and shows good cause.

I. Background

Petitioner is a physician with a medical practice in Scottsdale, Arizona. The Medicare
contractor, Noridian Administration Services (NAS), notified Petitioner by letter dated
January 6, 2009 that her application to enroll in Medicare as an Independent Diagnostic
Testing Facility (IDTF) was denied, because she did not meet the conditions for
enrollment. Centers for Medicare and Medicaid Services (CMS) Exhibit (Ex.) 2.
Petitioner requested reconsideration by letter dated March 2, 2009. CMS Ex. 3;
Petitioner’s Exhibit (P. Ex.) 3. On April 24, 2009, the contractor hearing officer issued a
reconsideration decision also denying Petitioner enrollment in Medicare as an IDTF.
CMS Ex. 1; P. Ex. 2. Petitioner requested a hearing by an administrative law judge
(ALJ) by letter dated December 15, 2009. P. Ex. 1.

The case was assigned to me on January 5, 2010 for hearing and decision, and an
Acknowledgment and Prehearing Order (Prehearing Order) was issued at my direction.
On January 25, 2010, CMS filed a motion to dismiss Petitioner’s request for hearing and
CMS Exs. | through 3. On February 4, 2010, CMS filed a motion for summary
judgment. CMS also filed the same exhibits that it filed with its motion to dismiss and
also filed CMS Exs. 4 and 5. No response to the CMS motion to dismiss was received
from Petitioner. Therefore, on February 22, 2010, I issued an order for Petitioner to show
cause in writing not later than March 5, 2010, why the CMS motion to dismiss should not
be granted. On March 3, 2010, Petitioner filed her response (P. Response) and Exs. 1
though 4. No objections have been made to my consideration of the exhibits, and all are
admitted.

II. Discussion
A. Applicable Law

Section 1831 of the Social Security Act (the Act) (42 U.S.C. § 1395j) established the
supplementary medical insurance benefits program for the aged and disabled known as
Medicare Part B. Payment under the program for services rendered to Medicare-eligible
beneficiaries may only be made to eligible providers and suppliers of services. Act

§§ 1835(a) (42 U.S.C. § 1395n(a)), 1842(h)(1) (42 U.S.C. § 1395(u)(h)(1)).
Administration of the Part B program is through contractors. Act § 1842(a) (42 U.S.C.

§ 1395u(a)). The Act requires the Secretary of Health and Human Services (Secretary) to
issue regulations that establish a process for the enrollment of providers and suppliers.
Pursuant to 42 C.F.R. § 424.505, a provider or supplier must be enrolled in the Medicare
program and be issued a billing number to have billing privileges to be eligible to receive
payment for services rendered to a Medicare-eligible beneficiary. See Medicare Program
Integrity Manual (MPIM), CMS Pub. 100-08, Chapter 10, Healthcare Provider/Supplier
Enrollment, § 6.1.1.

Section 1842(h)(8) of the Act (42 U.S.C. § 1395u(h)(8)) gives the Secretary discretion to
refuse to enter into an agreement, or to terminate or refuse to renew an agreement, with a
provider or supplier. The Secretary has delegated the authority to accept or deny
enrollment applications to CMS. Pursuant to the Secretary’s regulations, CMS may deny
a provider or supplier’s enrollment application if the provider or supplier is not in
compliance with Medicare enrollment requirements. 42 C.F.R. § 424.530(a)(1).

A provider or supplier enrollment is considered denied when the provider or supplier is
determined to be “ineligible to receive Medicare billing privileges for Medicare-covered
items or services provided to Medicare beneficiaries” for one or more of the reasons
listed in 42 C.F.R. § 424.530. 42 C.F.R. § 424.502. When a provider or supplier’s
enrollment application has been denied, the CMS contractor notifies the provider or

supplier in writing, explains the reasons for the determination, and provides information
regarding the provider or supplier’s (the affected party’s) right to appeal. 42 C.F.R.

§ 498.20(a); MPIM, Chapter 10, Healthcare Provider/Supplier Enrollment, §§ 6.2, 13.2.
The affected party may submit a written request for reconsideration to CMS. 42 C.F.R.
§ 498.22(a). CMS must give notice of its reconsidered determination to the affected
party giving the reasons for its determination and specifying the conditions or
requirements the affected party failed to meet. 42 C.F.R. § 498.25. If the CMS decision
on reconsideration is unfavorable to the supplier, the Act provides for a hearing by an
ALJ and judicial review. Act § 1866(j) (42 U.S.C. § 1395ce(j)). Pursuant to 42 C.F.R.
§ 498.40(a)(2), a request for hearing must be filed within 60 days of receipt of the notice
of which the affected party seeks review. An ALJ may extend the time for filing a
request for hearing for good cause. An ALJ may dismiss a hearing request where that
request was not timely filed, and the time for filing was not extended. 42 C.F.R. §
498.70(c).

B. Issue
Whether Petitioner’s request for hearing should be dismissed.
C. Findings of Fact, Conclusions of Law, and Analysis
My conclusions of law are set forth in bold followed by the pertinent facts and analysis.
1. Petitioner’s request for hearing was not timely filed.

2. Petitioner has not shown good cause for her untimely request for
hearing.

3. Dismissal of the request for hearing is appropriate.

CMS seeks dismissal of Petitioner’s request for hearing because it is untimely, and
Petitioner has not stated good cause to extend the time for filing the request for hearing. I
agree that dismissal is appropriate and grant the CMS motion.

The contract hearing officer’s reconsideration determination is dated April 24, 2009.
CMS Ex. 1. A presumption exists that Petitioner received the reconsideration
determination five days after the date on the decision absent evidence to the contrary. 42
C.F.R. § 498.22(b)(3). Thus, it is presumed that Petitioner received the reconsideration
determination on Wednesday, April 29, 2009. Petitioner does not assert that, and offers
no evidence that, she received the reconsideration decision on a different date. The
regulation requires that a request for hearing be filed within 60 days of receipt to be
timely. 42 C.F.R. § 498.40. In this case, the sixtieth day fell on Sunday, June 28, 2009,
and Petitioner’s request for hearing would be timely if it was postmarked not later than

Monday, June 29, 2009. However, Petitioner’s request for hearing is dated December 15,
2009, more than five months late.

Petitioner argues that the CMS motion to dismiss should not be granted. Petitioner
argues that she is really requesting review of some denied old claims. If Petitioner’s
characterization was correct, this case would not be within my jurisdiction, and dismissal
would be required on that basis. However, my review of the exhibits reveals that the
claims Petitioner wants reviewed were denied, because Petitioner's enrollment as an
IDTF was denied. CMS Ex. 5. Therefore, this case would be properly within my
jurisdiction as a denial of enrollment, rather than a denial of claims case, if timely filed.
Petitioner also argues, apparently with the thought that this explanation excuses the late
filing, that her office manager was having personal problems when the appeal should
have been filed. However, Petitioner, not her office manager, is responsible to ensure she
complies with program participation requirements, and the office manager’s personal
problems are no excuse for Petitioner’s failure to ensure she complied with the law.
Petitioner also argues that Medicare is complicated, which I accept as an understatement.
However, the reconsideration decision clearly stated: Petitioner’s right to request a
hearing by an ALJ; the requirement that she do so in writing to the address provided; and
that the request must be filed within 60 calendar days of receipt of the decision.
Petitioner only needed to read the decision to be aware of her rights. Petitioner offers no
argument or evidence that she was unable to read and understand the reconsideration
decision. Thus, I am left to infer that Petitioner’s failure to timely request review was the
result of carelessness, which is never good cause to extend the time for filing a request
for hearing.

Petitioner’s request for hearing was not timely filed, and she has not stated good cause to
extend the time for filing.

II. Conclusion

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

/s/
Keith W. Sickendick
Administrative Law Judge


Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD

Civil Remedies Division

Eugene Bolognese, D.C.,
Petitioner
Vv.
The Inspector General.
Docket No. C-10-223
Decision No. CR2130

Date: May 14, 2010

DECISION

In this case, the parties agree that Eugene Bolognese, D.C., was convicted of health care
fraud and that he is therefore subject to a minimum five-year exclusion from participation
in federal health care programs under § 1128(a)(3) of the Social Security Act (Act). They
dispute the length of his exclusion. The Inspector General (1.G.) proposes a 15-year
exclusion, and Petitioner argues that any exclusion in excess of five years is
unreasonable.

For the reasons set forth below, I find that the imposition of a 15-year exclusion is
reasonable.

I. Background

By letter dated September 30, 2009, the I.G. notified Petitioner that, because he had been
convicted of a felony criminal offense related to fraud, theft, embezzlement, breach of
fiduciary responsibility, or other financial misconduct in connection with the delivery of
a health care item of service, he was excluded from participation in Medicare, Medicaid,
and all federal health care programs for a period of 15 years. The letter explained that
section 1128(a)(3) of the Act authorizes the exclusion.

Petitioner concedes that he was convicted and is subject to exclusion under section
1128(a)(3). P. Br. at 2.

Both parties have submitted written arguments (I.G. Br.; P. Br.) and exhibits. The LG.
as submitted 2 exhibits. (I.G. Exs. 1-2). Petitioner has submitted 8 exhibits (P. Exs. 1-
8). The LG. also submitted a reply brief (1.G. Reply).

Petitioner contends that an in-person hearing is necessary. However, as the following
discussion establishes, the factual issues he seeks to address at an in-person hearing were
resolved by the criminal proceeding, and he may not here collaterally attack that court’s
rulings. An in-person hearing is therefore not necessary — indeed, it would serve no
purpose. See Order and Schedule for Filing Briefs and Documentary Evidence at 2
(January 27, 2010). See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986);
Livingston Care Ctr. v. U.S. Dep't of Health and Human Servs., 388 F. 3d 168, 173 (6th
Cir. 2004) (hearing unnecessary because case turns on a question of law and presents no
genuine dispute as to any material fact).

IL. Issue

Because the parties agree that the I.G. has a basis upon which to exclude Petitioner from
program participation, the sole issue before me is whether the length of the exclusion (15
years) is reasonable. 42 C.F.R. § 1001.2007.

II. Discussion

Section 1128(a)(3) of the Act requires that an individual or entity convicted of felony
fraud, theft, embezzlement, breach of fiduciary responsibility, or other financial
misconduct in connection with the delivery of a health care item or service must be
excluded from participation in federal health care programs for a minimum of five years.
See 42 C.F.R. § 1001.101(c).

The facts here are not in dispute. Petitioner was a chiropractor licensed to practice in the
State of Connecticut. He owned and operated his own practice, which, at times,
employed two physicians. I.G. Ex. 2, at 9. On January 22, 2009, he pled guilty to one
count of felony health care fraud, in violation of 18 U.S.C. § 1347(1). IG. Ex. 2.!
Petitioner admitted that he knowingly and willfully executed a scheme and artifice to
defraud Anthem Blue Cross/Blue Shield of Connecticut (Anthem BC/BS), a private
health insurance company. He submitted claims to the insurer under the names of the

' In entering his plea, Petitioner was well-aware that his plea could lead to an exclusion
from program participation, since his plea agreement spells that out. I.G. Ex. 2, at 6
(“[A]s a result of his conviction, the defendant may be excluded from participation as a
provider in the Medicare and Medicaid programs.”).
physicians he employed, even though those physicians did not provide the billed-for
services. I.G. Exs. 1, 2. In this way: he obtained payment for services not rendered; he
evaded caps on reimbursement for claims submitted by chiropractors; and the insurer
reimbursed him at a higher rate than authorized for chiropractic services. I.G. Ex. 2, at 9.
The parties agree that Petitioner is therefore subject to exclusion under section
1128(a)(3).

A. Based on the aggravating factors present in this case, the
15-year exclusion falls within a reasonable range.”

An exclusion under section 1128(a)(3) must be for a minimum period of five years. Act
§ 1128(c)(3)(B); 42 C.F.R. §§ 1001.102(a), 1001.2007(a)(2). Federal regulations set
forth criteria for lengthening exclusions beyond the five-year minimum. 42 C.F.R.

§ 1001.102(b). Evidence that does not pertain to one of the aggravating or mitigating
factors listed in the regulation may not be used to decide whether an exclusion of a
particular length is reasonable.

Among the factors that may serve as bases for lengthening the period of exclusion are
three that the LG. relies on in this case: 1) the acts resulting in the conviction, or similar
acts, resulted in a financial loss to Medicare and state health care programs of $5,000 or
more; 2) the acts that resulted in the conviction, or similar acts, were committed over a
period of one-year or more; and 3) the sentence imposed by the court included
incarceration. 42 C.F.R. § 1001.102(b). The presence of an aggravating factor, or factors
not offset by any mitigating factor or factors, justifies lengthening the mandatory period
of exclusion.

Here, Petitioner agrees that these factors are present but argues that they do not justify an
exclusion of more than five years, because “evidence as to his intent is weak, despite the
plea.” P. Br. at 3. I discuss below why Petitioner’s argument does not satisfy regulatory
requirements for mitigation. However, as a threshold matter, I note that federal
regulations explicitly preclude any collateral attack on Petitioner’s conviction.

When the exclusion is based on the existence of a criminal conviction . . .
where the facts were adjudicated and a final decision was made, the basis
for the underlying conviction . . . is not reviewable and the individual or
entity may not collaterally attack it, either on substantive or procedural
grounds, in this appeal.

2 My findings of fact and conclusions of law are set forth, in italics and bold, in the
discussion captions of this opinion.
42 CFR. § 1001.2007(d); Travers v. Sullivan, 801 F. Supp. 394 (E.D. Wash. 1992)
(finding petitioner may not collaterally attack the facts underlying his criminal
conviction); Joann Fletcher Cash, DAB No. 1725 (2000); Chander Kachoria, R.Ph.,
DAB No. 1380, at 8 (1993) (“There is no reason to ‘unnecessarily encumber the
exclusion process’ with efforts to reexamine the fairness of state convictions.”); Young
Moon, M.D., DAB CR1572 (2007).

Program financial loss. Based on an audit he commissioned, Petitioner now claims that
Anthem BC/BS lost only $169,034.30 as a result of his fraudulent billing practices. P.
Ex. 1, at 4. Even if I were to accept this amount, it is substantially greater (more than 33
times greater) than the $5,000 threshold for aggravation and would be sufficient to justify
a marked increase in his period of exclusion.

However, I may not accept this amount, since, as part of his plea agreement, Petitioner
explicitly admitted that “the amount of the loss caused by [his] criminal scheme is
$573,036.” I.G. Ex. 2, at 9. The criminal court accepted his agreement and ordered him
to pay that amount in restitution. 1.G. Ex. 2, at 2. Restitution has long been considered a
reasonable measure of program losses. See Jason Hollady, M.D., DAB No. 1855 (2002).
The program loss was thus adjudicated by the criminal court, and I am bound to accept
the court’s findings.

Length of criminal conduct. Petitioner is now claiming that the period of his improper
billing “barely exceeds the one-year minimum period for establishing an aggravating
factor based on duration.” P. Br. at 4. Even if accepted, the one-year duration would
justify an increase in the period of exclusion. But, again, the court proceedings
established a longer period of illegal billing. As part of his plea agreement, Petitioner
admitted that his scheme to defraud began on or about August 5, 2005, and continued
until on or about December 12, 2007. I.G. Ex. 2, at 9.

Incarceration. Finally, the sentence imposed by the criminal court included a period of
incarceration. Petitioner agrees that he was sentenced to six weeks incarceration
followed by a 3-month stay in a residential “re-entry center.” P. Ex. 1, at 5 (Bolognese
Decl. { 13). Petitioner characterizes the term of incarceration as “lenient,” apparently
suggesting that its relatively short length justifies a shorter period of exclusion. P. Br. at
4. But the fact of his incarceration for any period of time justifies increasing the length of
his exclusion. See Jason Hollady, M.D., DAB No. 1855, at 9-10 (finding irrelevant to the
issue of whether petitioner's sentence included incarceration the fact that petitioner was
put on a work release program a few days after the beginning of petitioner's sentence).

B. No mitigating factors justify decreasing the period of
exclusion.

The regulations consider mitigating just three factors: 1) a petitioner was convicted of
three or fewer misdemeanor offenses, and the resulting financial loss to the program was
less than $1,500; 2) the record in the criminal proceedings demonstrates that a petitioner
had a mental, physical, or emotional condition that reduced his culpability; and 3) a
petitioner’s cooperation with federal or state officials resulted in others being convicted
or excluded, or additional cases being investigated, or a civil money penalty being
imposed. 42 C.F.R. § 1001.102(c) (emphasis added). Characterizing the mitigating
factor as “in the nature of an affirmative defense,” the Departmental Appeals Board has
ruled that Petitioner has the burden of proving any mitigating factor by a preponderance
of the evidence. Barry D. Garfinkel, M.D., DAB No. 1572, at 8 (1996).

Obviously, because Petitioner’s felony conviction involved program financial losses
many times greater than $1,500, the first factor does not apply here. Nor does Petitioner
claim any cooperation with government officials.

However, Petitioner alludes to a “psychological impairment of judgment” and offers an
August 2008 letter (although no written declaration) from psychologist Richard B. Blum,
Ph.D., to Petitioner’s criminal attorney. P. Ex. 5. Dr. Blum opines that Petitioner’s
difficult childhood made him overly trusting. According to Dr. Blum, Petitioner’s
trusting nature plus the complicated billing procedures endemic to contemporary medical
practice caused Petitioner’s difficulties. Thus, Dr. Blum’s opinion suggests that
Petitioner was more victim than perpetrator of the fraudulent scheme.

But to establish a mitigating factor under 42 C.F.R. § 1001.102(c)(2), Petitioner must
show that the criminal court specifically determined “that a mental, emotional, or
physical condition reduced culpability for the crime.” Joseph M. Ruske, Jr., R.Ph., DAB
No. 1851 (2002) (citing Frank R. Pennington, M.D., DAB No. 1786 (2001)). Petitioner
points to no portion of the criminal court record suggesting that the court accepted Dr.
Blum’s opinion or considered that Petitioner’s trusting nature made him less responsible
for his crime. In fact, the opposite is true. In accepting the plea agreement, the court
found that Petitioner acted “knowingly and willfully.” I.G. Ex. 2, at 1.

IV. Conclusion

The I.G. has the authority to impose exclusions for convictions relating to health care
fraud. 42 C.F.R. § 1001.201(a). So long as the period of exclusion is within a reasonable
range based on demonstrated criteria, I have no authority to change it. Joann Fletcher
Cash, DAB No. 1725, at 7 (citing 57 Fed. Reg. 3298, 3321 (1992)). In this case,
Petitioner’s crime demonstrates that he presents a significant risk to the integrity of health
care programs. The financial loss he caused greatly exceeds the regulatory threshold for
aggravation. His crime continued for more than two years and was serious enough to
merit incarceration. I find that these aggravating factors, which are not offset by any
mitigating factor, more than justify a 15-year exclusion. Therefore, the I.G. properly
excluded Petitioner from participation in Medicare, Medicaid, and all federal health care
programs, and I sustain as reasonable the 15-year exclusion.

/s/
Carolyn Cozad Hughes
Administrative Law Judge


Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD

Civil Remedies Division

Social Security Administration
Vv.
Antoinette McFarland,
Respondent.
Docket No. C-10-300
Decision No. CR2128

Date: May 04, 2010

DECISION

The request for hearing of Petitioner, Antoinette McFarland, is dismissed. Petitioner has
waived the right to a hearing regarding the alleged debt to the government in the amount
of $884.18. The debt is subject to immediate collection by administrative offset or in any
manner permitted by law.

I. Background

Petitioner requested a hearing by letter dated September 18, 2009. The Civil Remedies
Division of the Departmental Appeals Board (DAB) received Petitioner’s request for
hearing on January 4, 2010. Petitioner’s request for hearing was attached to a letter dated
December 9, 2009. Edwina Bailey signed the letter for Michele Bailey, the Debt
Management Team Leader for the Social Security Administration (SSA). Ms. Bailey
advised in her letter that Petitioner’s request for hearing was forwarded for review and
scheduling of a hearing and that Petitioner was a current employee of SSA.
The case was assigned to me on January 12, 2010. On January 20, 2010, I issued an
Order for Submission of Documents and Written Argument that established a schedule
for briefing and the submission of evidence. On February 12, 2010, SSA filed a motion
requesting that it be granted a three-day extension of time to file its brief and supporting
evidence, because federal offices in Washington, D.C. and Baltimore were closed for
three days due to severe weather. The SSA brief and supporting evidence were filed with
its motion for an extension. I granted the SSA motion by my Order Amending the Order
for Submission of Documents, dated February 12, 2010, and SSA’s brief and SSA
exhibits (SSA Ex.) | through 5 were accepted for filing.

Pursuant to the amended schedule, Petitioner was to file her written argument and
exhibits not later than March 5, 2010. No submission was received from Petitioner as of
April 2, 2010. Petitioner was ordered to show cause not later than April 12, 2010, why
her request for hearing should not be dismissed for untimely filing as SSA urged. The
Order to Show Cause also advised Petitioner to file any written argument or documentary
evidence not later than April 12, 2010. Petitioner filed a letter dated April 5, 2010 that is
marked P. Ex. 1. SSA Exs. | through 5 and P. Ex. | are admitted and considered as
evidence.

II. Discussion
A. Issue

Whether Petitioner’s request for hearing must be dismissed, because it was
not timely filed.

B. Law Applicable

Debts owed to the United States from a federal employee may be collected from the
current pay account of the employee, including basic pay, special pay, incentive pay,
retired pay, retainer pay, or other authorized pay, subject to the provisions of 5 U.S.C.

§ 5514. The amount that may be deducted is limited to 15 percent of disposable pay per
pay period, unless the employee consents in writing to the collection of a larger amount.
5US.C. § 5514(a)(1).

Before an agency head may direct collection of indebtedness from the salary of an
employee, due process must be provided. The employee must be given written notice a
minimum of 30 days prior to any attempt to collect. The notice must inform the
employee of the nature and amount of the debt determined to be due, and the agency’s
intention to effect collection through deduction from the employee’s pay. The notice
must explain the employee’s rights under 5 U.S.C. § 5514. The employee must be given
the opportunity to inspect and copy government records related to the debt. The
employee must be offered an opportunity to enter a written agreement, agreeable to the
agency head, establishing a repayment schedule. The employee must also be given the
opportunity for a hearing on the determination of the agency regarding the existence or
the amount of the debt and any repayment schedule not established by written agreement.
The statute requires that a hearing be provided only if requested within 15 days of receipt
of the notice of indebtedness from the agency. The timely filing of a request for hearing
automatically stays the commencement of collection proceedings. The statute requires
that a decision be issued by the official designated to conduct the hearing not more than
60 days from the date of filing the request for hearing.

The hearing may not be conducted by an individual subject to the supervision or control
of the head of the agency, but the statute provides that it should not be construed to
prohibit the appointment of an Administrative Law Judge (ALJ) to conduct the hearing.
5 U.S.C. § 5514(a)(2). Collection of any amount pursuant to 5 U.S.C. § 5514 must be in
accordance with standards promulgated pursuant to 31 U.S.C. §§ 3711 and 3716 through
3718. 5 U.S.C. § 5514(a)(4). The Secretary (Secretary) of Health and Human Services
(HHS) and the Commissioner of SSA (Commissioner), through their delegees, have
provided by Interagency Agreement that ALJs assigned to the DAB, which is part of
HHS, will conduct hearings related to collection of debts owed to the government by
SSA employees who are not represented by the American Federation of Government
Employees.

The head of each executive agency is required by 5 U.S.C. § 5514(b)(1) to issue
regulations implementing its provisions.’ The Commissioner has not issued new
regulations implementing 5 U.S.C. § 5514. Rather, the Interagency Agreement between
the Secretary and the Commissioner provides that the HHS debt collection regulations at
45 C.F.R. Part 30 (1995) be applied when reviewing alleged debts to the government
owed by current SSA employees. The applicable provision is 45 C.F.R. § 30.15 (1995),
which covered all claims collection by the Secretary through administrative offset.

' The current regulations of the Secretary implementing the provisions of 5 U.S.C.

§ 5514 are found at 45 C.F.R. Part 33 (2008) (http://www.gpoaccess.gov/cfr/index.html).
The final regulations were published on March 8, 2007 and were effective on that date.
72 Fed. Reg. 10,419 (Mar. 8, 2007).

> The text of 45 C.F.R. § 30.15 (1996) is available at www.gpoaccess.gov/cfr/index.html,
but earlier editions are not. The regulation was promulgated in 1987 (52 Fed. Reg. 264
(Jan. 5, 1987)), and there was no change in the language of the section until the
Secretary’s new regulations related to debt collection were promulgated in 2007. The
Secretary’s regulations related to claims collection were substantially changed and
reorganized in 2007 with publication of final rules on Claims Collection, codified at 45
C.F.R. Part 30 (72 Fed. Reg. 10,404 (Mar. 8, 2007)), and Salary Offset, codified at 45
C.F.R. Part 33 (72 Fed. Reg. 10,419 (Mar. 8, 2007)). The Secretary’s final rule on
(continued...)

Administrative offset was defined as “satisfying a debt by withholding money payable by
the Department [HHS] to, or held by the Department for a debtor.” 45 C.F.R.

§ 30.15(b)(1). Examples of money payable by HHS to a debtor that might be withheld to
satisfy a debt included benefit payments, amounts due a defaulting or overpaid
contractor, salaries of federal employees, federal income tax returns, and judgments held
by the debtor against the United States. Jd.

Pursuant to 45 C.F.R. § 30.15(i), when feasible, a debt is to be collected by offset in one
lump sum. However, when the collection of a debt is by offset of a federal employee’s
pay pursuant to 5 U.S.C. § 5514, offset is limited to 15 percent of the employee’s
disposable pay for any pay period, unless the employee agrees in writing to a larger
deduction. “However, if the employee retires, resigns, or is discharged, or if his or her
employment or active duty otherwise ends, an amount necessary to satisfy the debt may
be offset immediately from payments of any nature due the individual.” 45 C.F.R.

§ 30.15(i).

The procedural due process provided by 45 C.F.R. § 30.15 is consistent with the
requirements of 5 U.S.C. § 5514. Before any offset of a debt against a federal
employee’s salary may be effected, the employee must be notified in writing of: the
nature and amount of the debt; the agency’s intent to collect by offset if not paid; the
interest, administrative cost, and penalties that will or may be assessed if payment is not
made within 30 days; the right to request, within 15 days, copies of agency records
pertaining to the debt, an alternative repayment schedule, or a hearing if the debtor
contests the debt; the right to request a waiver; the office, including address and
telephone number, where inquiries or requests may be directed; the requirement that a
decision issue no later than 60 days after the request for hearing is filed, unless the
employee requests and is granted an extension of time; the fact that knowingly false and
rivolous statements, representations, or evidence may subject the debtor to civil,
criminal, or disciplinary action; and the fact that any amount collected incorrectly, or for
which waiver is subsequently granted, will be promptly refunded. 45 C.F.R. § 30.15(j).
The regulation provides that the hearing to be accorded “will normally be a review of the
record, unless the hearing officer determines that a decision cannot be made without
resolving an issue of credibility or veracity, in which case the hearing officer will provide
or an oral hearing.” 45 C.F.R. § 30.15(n).

*(...continued)

Administrative Wage Garnishment, codified at 45 C.F.R. Part 32, was issued in 2003 (68
Fed. Reg. 15,092 (Mar. 28, 2003)).
C. Findings of Fact, Conclusions of Law, and Analysis

My conclusions of law are set forth in bold, followed by a statement of the pertinent facts
and my analysis.

1. Petitioner is a not a bargaining unit employee and her request for
hearing is properly before me.

2. Petitioner’s request for hearing was not timely filed.
3. Dismissal of Petitioner’s request for hearing is required.

Petitioner’s request for hearing is dated September 18, 2009. She alleges in her request
for hearing that her servicing personnel office erroneously advised her to file a request for
waiver of indebtedness rather than a request for hearing. She states that the request for
waiver was denied. She alleges in her request for hearing that the overpayment was due
to an administrative error, and its collection would be against equity and good conscience
and a financial hardship.

The packet of materials received from Ms. Bailey at SSA includes a letter dated
September 8, 2009, to the Department of Interior's Payroll Operations Division regarding
Petitioner and states that Petitioner’s request for waiver of an overpayment in the amount
of $884.18 that occurred during pay period 14 of 2009 was denied. The packet included
a letter dated September 2, 2009, addressed to Petitioner from Geri Bortz, Director,
Human Resources of SSA that advised Petitioner that her waiver request was denied.
Also included was a letter to Petitioner dated August 24, 2009, signed by Geri Bortz that
confirmed receipt of Petitioner’s request for waiver of overpayment dated August 24,
2009.

Petitioner states in her letter to me dated April 5, 2010 (P. Ex. 1) that she received the
notice of overpayment dated August 10, 2009, but she does not state the date on which it
was received. She states, however, that on August 23, 2009, she was advised by a
representative of her servicing personnel office that it was quicker to file a request for
waiver of the overpayment than to request a hearing. Petitioner states that: this was her
first overpayment; she was misinformed by her personnel office; and the overpayment
was the result of an administrative error. P. Ex. 1.

SSA alleges that Petitioner is a non-bargaining unit employee and that her request for
hearing is properly before me pursuant to the Interagency Agreement. SSA Brief at 1, 4;
SSA Ex. 4. Absent any evidence to the contrary, I conclude that Petitioner is a non-
bargaining unit employee and that her request for hearing is properly before me pursuant
to the Interagency Agreement.
SSA argues that Petitioner’s request for hearing was not timely filed and must be
dismissed. SSA Brief at 3. SSA Exhibit 1 is a copy of the notice of indebtedness to
Petitioner dated August 10, 2009. The notice advised Petitioner that an amendment of
her time and attendance records resulted in her receiving an overpayment of employee
pay. Exhibit 7 to the notice letter advised Petitioner that the amount of the debt owed
was $884.18, based upon adjustment of leave used during pay period 14 of 2009. SSA
Ex. 1, at 11. Exhibit 4, 5, and 6 to the notice advised Petitioner of her due process rights,
including the right to a hearing. SSA Ex. 1, at 7-10. Exhibit 6 to the notice advised
Petitioner that her request for hearing “must be postmarked no later than 15 days from the
date of this letter.” SSA Ex. 1, at 9. Exhibit 6 also advised Petitioner that “[a] debtor
who fails to meet a filing deadline or to request an extension waives the right to a hearing
and will be subject to offset [i.e., collection of the debt by administrative offset].” SSA
Ex. 1, at 9-10.

Collection of Petitioner’s debt to the government is subject to 5 U.S.C. § 5514 and 42
C.F.R. § 30.15 (1995). Pursuant to 5 U.S.C. § 5514(a)(2), a hearing will be provided to
an alleged employee-debtor if a petition requesting a hearing is filed “on or before the
fifteenth day following receipt of the notice” of the alleged debt. The regulation is more
specific regarding the time for filing a request for a hearing and the effect of the failure to
timely file.

The request must be postmarked no later than 15 days (unless
otherwise provided by statue or regulation) from the date the
notice was mailed to the debtor. ... The Secretary may grant
an extension or excuse a delay if the debtor shows good cause
for late filing of a request for a hearing. A reasonable
extension will be granted only if the debtor shows that the
delay was caused by circumstances beyond the debtor’s
control or because the debtor did not receive notice, and was
not otherwise aware of the time limit. A debtor who fails to
meet the filing deadline or to request an extension waives the
right to a hearing and will be immediately subject to offset.

42 CFR. § 30.15(1).

The provision of the statute that the running of the 15 days for filing a request for hearing
begins on the date of receipt of indebtedness controls in this case. 5 U.S.C. § 5514(a)(2).
However, the evidence does not reflect the date on which Petitioner actually received the
August 10, 2009 notice of indebtedness. SSA Ex. 1. SSA did not submit a certified mail
receipt, and Petitioner did not mention a date of receipt in her request for hearing, or in
her April 5, 2010 letter to me (P. Ex. 1). I may infer, however, that she received the
notice on or before August 23, 2009, because Petitioner states in P. Ex. 1 that she spoke
to a representative of her servicing personnel office about the notice on that day.
Furthermore, the August 27, 2009 letter to Petitioner, from Geri Bortz attached to
Petitioner’s request for hearing, acknowledges receipt of Petitioner’s August 24, 2009
request for waiver of the overpayment.

l accept for purposes of this decision that Petitioner received the August 10, 2009 notice
of indebtedness not later than August 24, 2009, the date of her request for waiver.
Petitioner’s request for hearing is dated September 18, 2009, which is 25 days after her
receipt of the notice of indebtedness on August 24, 2009. The only excuse Petitioner
offers for not filing her request within 15 days of receipt, as required by 5 U.S.C.

§ 5514(a)(2) and 42 C.F.R. § 30.15(1), is that she was “given misinformation on what to
file-waiver vs. hearing.” Request for Hearing.

In her letter dated April 5, 2010, Petitioner asserts that a representative of her personnel
office recommended that she request a waiver by email, because it was faster to request a
waiver first. P. Ex. 1. I conclude that Petitioner has not established good cause for
granting her an extension of time for filing her request for hearing. She does not deny
that she received notice of the alleged debt and notice of her right to request a hearing
within 15 days. She does not deny that the copy of the notice of indebtedness dated
August 10, 2009, with its seven exhibits (SSA Ex. 1), is an accurate copy of the notice
she received not later than August 24, 2009. I find that the notice of debt is clear and
unequivocal in advising Petitioner of her right to request a hearing to dispute the
existence or amount of the debt.

The notice was also clear that the request for hearing had to be filed no later than 15 days
from the date of the notice. SSA Ex. 1, at 9. The notice is also clear and unequivocal in
advising Petitioner of her right to request a waiver of the overpayment and resulting debt,
if Petitioner “did not dispute the validity of the debt... .” SSA Ex. 1, at 8. Petitioner
states in her letter dated April 5, 2010, that she told the representative of her personnel
office on August 23, 2009, that as a non-bargaining employee she should file a request
for hearing if she disagreed with the debt. P. Ex. 1. Petitioner’s election to request a
waiver first, rather than request a hearing, was clearly within her control and not a
circumstance beyond her control, even if I accept that she received bad advice from her
personnel office.

I conclude that Petitioner waived the right to hearing on the alleged debt based upon the
language of 42 C.F.R. § 30.15(1), i.e. “[a] debtor who fails to meet the filing deadline or
to request an extension waives the right to a hearing and will be immediately subject to
offset.” I further conclude that there is no reason to further delay the government’s
collection of the debt by administrative offset.
II. Conclusion

For the foregoing reasons, I conclude that Petitioner has waived the right to hearing
regarding the alleged debt to the government in the amount of $884.18. The debt is
subject to immediate collection by administrative offset or in any manner permitted by
law.

/s/
Keith W. Sickendick
Administrative Law Judge