Health Law Daily Wrap Up, ADMINISTRATION OF MEDICARE/MEDICAID PROGRAMS—DAB DECISIONS: Physician’s challenge to CMS preclusion list placement dismissed for untimeliness, (Mar 23, 2026)

The challenge was untimely and beyond the ALJ’s authority.

An administrative law judge (ALJ) of the HHS Departmental Appeals Board (DAB) dismissed a physician’s request for removal from the CMS preclusion list because the request was untimely and sought relief the ALJ had no authority to grant. The DAB noted that the physician did not file a hearing request within the 60day window required to challenge the reconsidered determination (David S. Tabby, DO, DAB No. CR6665, Doc. No. C-25-485 (Apr. 9, 2025)).

Generally, CMS applies a presumption of receipt that deems a notice delivered five days after its issuance. The DAB noted that the reconsidered determination was issued on July 12, 2024, resulting in a presumptive receipt date of July 17, 2024. Based on that date, the physician had until midSeptember 2024 to request a hearing. Instead, he filed his request on March 25, 2025, more than six months beyond the regulatory deadline. The DAB noted that the physician conceded this untimeliness and offered no evidence to rebut the presumption of receipt or justify an extension.

The DAB further concluded that the physician failed to demonstrate good cause for missing the filing deadline. Although the physician stated that he initially relied on legal advice not to appeal, the DAB found that a change in personal or professional circumstances—such as the physician’s later realization that his placement on the preclusion list adversely affected Medicare beneficiaries in his area—did not qualify as good cause under the governing regulations. The DAB stated that CMS’s notice clearly informed the physician of the filing requirements and available submission methods, and nothing in the record indicated that the physician was prevented from filing a timely appeal.

Moreover, the ALJ noted that he lacked authority to grant the relief the physician sought. The physician asked for “early removal” from the CMS preclusion list, but the ALJ explained that CMS regulations do not authorize an ALJ to order such relief. An ALJ may review the basis for a preclusion list determination, but does not have jurisdiction to modify or shorten the duration of a placement on the list. The ALJ emphasized that the physician requested relief that exceeded the scope of permissible review under the applicable regulations.

The DAB also noted that CMS had fulfilled its responsibilities by furnishing clear instructions regarding how and when to file an appeal. The reconsideration notice provided the physician with filing options, instructions for using the DAB EFile system, and a CMS email address for questions. By failing to file within the 60day period and seeking relief the ALJ could not provide, the physician triggered mandatory dismissal under 42 C.F.R. §§ 498.70(b) and (c).

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