Health Law Daily Wrap Up, MEDICARE OVERPAYMENTS AND UNDERPAYMENTS—N.D. Ohio: Medicare provider’s request for hearing improperly deemed untimely, (Jul 30, 2026)

By Steven Melendez

Because the provider rebutted that presumption of receipt with evidence of nonreceipt, and because the agency lacked proof supporting a contrary conclusion, the court set aside the dismissal and remanded the case for an ALJ hearing on the merits of the Medicare appeals.

A federal court found it had jurisdiction to review an Office of Medicare Hearings and Appeals (OMHA) administrative law judge’s denial of a provider’s hearing request as untimely, ordering an ALJ hearing on the merits of the provider’s underlying appeal. The provider offered evidence that it filed its appeal of the Qualified Independent Contractor’s reconsideration determinations within 60 days of receiving the decisions via fax and rebutted a presumption that the decisions were received within five days of mailing. Because the presumption of receipt was rebutted, the provider’s appeal was not untimely and the provider was entitled to an ALJ hearing on the merits of the case (Heartland Hospice Services, LLC v. Kennedy, No. 3:25-cv-1037 (N.D. Ohio July 28, 2026)).

Procedural background. Heartland Hospice Services, LLC, is a Medicare-certified hospice service provider with its principal place of business in Toledo, Ohio. In a March 30, 2021, letter, a Centers for Medicare & Medicaid Services (CMS) Supplemental Medical Review Contractor requested information from Heartland related to 384 Medicare Part A hospice claims related to services provided at Heartland’s Columbus location.

Heartland produced thousands of pages of records, and the review contractor “identified a 42.60% error rate, denied 164 of the 384 reviewed claims, and calculated a $717,660.65 overpayment,” according to the ruling in the case. Administrative contractor National Government Services (NGS) issued demand letters in April 2022, and Heartland submitted redetermination requests to NGS, but NGS upheld the claim denials.

Heartland then sought reconsideration from Maximus Federal Services, a qualified independent contractor. Maximus issued seven decisions upholding, either in whole or in part, the denial of 115 claims. Heartland expected to receive the decisions around October 2022 but alleges it never received them. On November 22, 2022, the company found that recoupment had begun for the alleged overpayment and sought legal assistance. Its counsel spent weeks trying to obtain the decisions. “During those efforts, Maximus and CMS apparently supplied incorrect appeal numbers, incorrect provider information, and decisions relating to other hospices,” according to the ruling, before Heartland finally obtained the decisions by fax on January 5, 2023.

On March 3, 2023, Heartland submitted a request for an ALJ hearing to OMHA, but an ALJ reviewed the request three days later and deemed the request untimely under a 60-day filing deadline, based on a presumed receipt date of the mailed decisions. The ALJ also found no good cause for the late filing, and OMHA issued notices of dismissal. Heartland sought Medicare Appeals Council review of six of the OMHA appeals numbers, but the Appeals Council denied review on March 21, 2025, and Heartland filed suit against the secretary of Health and Human Services. The lawsuit includes claims under the Medicare Act and Administrative Procedure Act, alleging the agency applied incorrect law and that the determinations were unsupported by evidence.

Jurisdiction. The secretary argued the court lacked jurisdiction because the Medicare Act only allows judicial review after a hearing, and no hearing occurred in this case. Heartland pointed to precedent, including McKentry v. Secretary of Health & Human Services, 655 F.2d 721 (6th Cir. 1981), in which courts had ordered an ALJ hearing after an appeal was dismissed as untimely.

Other cases in which courts found they lacked jurisdiction in the absence of a hearing do not “hold that an agency may dismiss a first request for hearing as untimely based solely on presumed receipt, without proof of receipt and despite sworn evidence of nonreceipt, therefore placing the dismissal beyond any judicial review,” the court found.

Nor does 42 C.F.R. § 405.1116, which holds an Appeals Council review of an ALJ dismissal binding and not subject to judicial review “unless reopened and vacated by the Council,” require dismissal, the court found, ruling that “a regulation cannot answer the statutory jurisdiction question in a way that makes the agency the final and unreviewable judge of whether its own notice procedures were followed.”

The court found that it had jurisdiction to review whether the ALJ’s dismissal relied on an adequate determination of whether and when the decisions were received.

Receipt determination. Regulations give Heartland 60 days to file after receipt, not after the decisions were issued, and a presumption that mailed decisions are received after five-days is rebuttable, the court found. In this case, Heartland provided “sworn statements and correspondence” describing its failure to initially receive the decisions and subsequent issues obtaining them.

The HHS secretary failed to provide proof that the decisions were mailed and not returned or were otherwise delivered. The secretary argued Heartland should have inferred the decisions were likely issued, “checked the portal, or requested an extension,” according to the ruling. But the judge found this standard would negate the receipt requirement and effectively force a provider to appeal a decision it had not seen without knowing what elements of the decision it sought to challenge.

The ALJ’s good-cause analysis also should have focused on “whether Heartland received the reconsideration decisions in time to file an ALJ hearing request and, if not, whether good cause existed due to nonreceipt or delayed receipt,” according to the ruling.

The court granted Heartland’s motion for summary judgment, remanding the matter for an ALJ hearing on the merits of Heartland’s appeals.

The case is No. 3:25 CV 1037.

Judge: Zouhary, J.

Attorneys: Bryan K. Nowicki (Husch Blackwell LLP) for Heartland Hospice Services, LLC. Lisa Hammond Johnson, Office of the U.S. Attorney, for Robert F. Kennedy, Jr.

Companies: Heartland Hospice Services, LLC

Cases: CaseDecisions CMSNews PaymentNews OhioNews