Health Law Daily Wrap Up, ADMINISTRATION OF MEDICARE/MEDICAID PROGRAMS—DAB DECISIONS: Exclusion appeal dismissed following untimely filing, (Jun 3, 2026)

By WK Editorial Staff

Failure to timely request a hearing following an exclusion notice required dismissal of the appeal, especially when the presumption of receipt was not adequately rebutted.

The HHS Departmental Appeals Board (DAB) dismissed a counselor’s request for a hearing contesting his exclusion from federal health care programs after determining that the filing was untimely and the presumption of timely receipt of notice was not rebutted. An administrative law judge (ALJ) concluded in an ALJ Ruling that the governing regulations required dismissal because the counselor failed to demonstrate that he submitted his hearing request within 60 days of receiving the exclusion notice, and the ALJ lacked authority to extend the filing deadline (Richard Terry Kinnaman, ALJ Ruling No. 2026-13, Doc. No. C-26-209 (Mar. 16, 2026)).

The Inspector General (IG) issued a June 30, 2025, notice informing the counselor that he would be excluded under 42 U.S.C. § 1320a-7(b)(4) based on the revocation or surrender of his Tennessee license as an alcohol and drug abuse counselor for reasons bearing on professional competence, performance, or financial integrity. The notice advised that the exclusion would take effect 20 days from the date of the notice and explained the counselor’s right to request a hearing within 60 days of receipt. The regulations establish a presumption that such notice is received five days after issuance unless the recipient makes a reasonable showing to the contrary.

Service, receipt of notice. The counselor filed a hearing request on December 30, 2025, six months after the date of the exclusion notice. During a prehearing conference, the ALJ identified that the request appeared untimely. The counselor asserted that he had not received the exclusion notice and instead learned of the exclusion through other means, including a report from the National Practitioner Data Bank. The ALJ directed both parties to submit evidence regarding service and receipt of the notice, specifying that statements were to be provided in the form of affidavits or declarations under penalty of perjury.

The IG presented evidence demonstrating that it sent both an April 23, 2025, notice of intent to exclude and the June 30, 2025, exclusion notice to the petitioner at two addresses, including a Spring Hill address. While correspondence sent to a Columbia, Tennessee address was returned as undeliverable, the notice sent to the Spring Hill address was not returned. The Spring Hill address was used for prior communications from the state licensing authority and the NPDB. No evidence indicated those earlier communications were unsuccessful.

Conversely, the counselor submitted an email asserting non-receipt of the exclusion notice but did not provide the statement in a compliant evidentiary form, such as an affidavit or declaration under penalty of perjury. The counselor’s submission also failed to include specific details explaining when or how he learned of the exclusion or why the notice may not have been delivered. The ALJ considered the counselor’s materials despite procedural deficiencies due to his pro se status but found them insufficient to rebut the regulatory presumption of receipt.

Under 42 C.F.R. § 1005.2(c), receipt is presumed to occur five days after the date on the notice unless rebutted by a reasonable showing. The ALJ found that the IG’s documentation, including a declaration describing mailing procedures and records confirming dispatch to the petitioner’s address, supported application of the five-day presumption. The absence of returned mail for the Spring Hill address further implied that the notice was delivered. The ALJ found that the counselor’s unsupported assertion of non-receipt, without corroborating evidence or a detailed explanation, did not satisfy the requirement for a reasonable showing to overcome the presumption.

As such, the ALJ concluded that the counselor was presumed to have received the exclusion notice no later than July 5, 2025. Consequently, the deadline for filing a hearing request expired 60 days thereafter. Because the counselor did not file his request until December 30, 2025, the ALJ determined that the request was untimely.

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