David S. Tabby, DO, DAB CR6665 (2025)

DECISION DISMISSING CASE

The request for hearing of Petitioner, David S. Tabby, DO, is dismissed pursuant to 42 C.F.R. § 498.70(b) and (c), because I have no authority to grant the requested relief, and Petitioner did not timely file his request for hearing or state good cause for extending the time to file. 

I. Background and Facts

On July 12, 2024, a Centers for Medicare & Medicaid Services (CMS) hearing officer issued a reconsidered determination upholding an initial determination to place Petitioner’s name on the CMS preclusion list pursuant to 42 C.F.R. §§ 422.2, 422.222, 423.100, and 423.120(c)(6).  Departmental Appeals Board Electronic Filing System (DAB E-File) # 1_a.  The reconsidered determination advised Petitioner that he had the right to request administrative law judge (ALJ) review of the determination within 60 calendar days of receipt of the determination.  The reconsidered determination provided Petitioner information about how to request a hearing using DAB E-File or by regular mail if using DAB E-File was not possible.  The reconsidered determination also 

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provided Petitioner a CMS Provider Enrollment Appeals email address for questions.  DAB E-File # 1_a at 6-8 (document page counter). 

On March 25, 2025, Petitioner filed a request for hearing through DAB E-File.  Petitioner requested “early removal from the CMS preclusion list.”  DAB E-File # 1 at 1. 

On April 3, 2025, CMS filed a motion to dismiss Petitioner’s request for hearing on grounds it was not timely filed.  DAB E-File # 4.  Petitioner filed a response to the CMS motion on April 3, 2025.  Petitioner admits his request for hearing was untimely.  But he states that he relied on the advice of counsel not to appeal the reconsidered determination.  However, he has now learned that his being on the CMS preclusion list adversely affects Medicare beneficiaries in his area.  DAB E-File # 5.  Petitioner filed a further response on April 9, 2025, providing additional items for consideration that do not affect this dismissal decision.  DAB E-File # 6. 

Pursuant to 42 C.F.R. §§ 498.22(b)(3) and 498.40(a)(2), it is presumed that Petitioner received the hearing officer’s reconsidered determination on Wednesday, July 17, 2024.  The regulations establish a presumption of receipt five days after the date of the notice.  The date on the notice was July 12, 2024, and five days thereafter was July 17, 2024.  Petitioner has not alleged or offered evidence that the reconsidered determination was received later than July 17, 2024. 

Pursuant to 42 C.F.R. § 498.40(a)(2), Petitioner had 60 days from July 17, 2024, the presumptive date of receipt of the reconsidered determination, to request an ALJ hearing.  The 60th day was September 15, 2024, which was a Sunday.  Therefore, Petitioner’s deadline for filing the request for hearing was Monday, September 16, 2024.  Petitioner did not file a request for hearing until March 25, 2025 – 190 days late. 

II. Discussion

The regulations are clear regarding the requirements for timely filing a request for hearing.  Title 42 C.F.R. § 498.40(a)(2) provides: 

• The affected party or its legal representative or other authorized official must file the request in writing within 60 days from receipt of the notice of initial, reconsidered, or revised determination unless that period is extended in accordance with [42 C.F.R. § 498.40(c)].  (Presumed date of 

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• receipt is determined in accordance with [42 C.F.R.] § 498.22(b)(3)). 

Pursuant to 42 C.F.R. § 498.22(b)(3), the 60-day period for requesting a hearing runs from the date of receipt by the affected party, which is presumed to be five days after the date of the notice unless it is shown that the notice was received earlier or later.  I have the discretion to extend the period for filing a request for hearing if the petitioner files a “written request for extension of time stating the reasons why the request was not filed timely,” and I find that good cause for the late filing is stated.  42 C.F.R. § 498.40(c).  The regulatory history of 42 C.F.R. § 498.40 is not helpful to understanding application of the regulatory provisions in this case.  52 Fed. Reg. 22,444, 22,450 (June 12, 1987); 73 Fed. Reg. 36,448, 36,462 (June 27, 2008).  However, the requirement for timely filing a written request for hearing is important to ensure that administrative finality may be achieved, that is, if there is no deadline for filing and an affected party may file at any time, the record on an action may never be closed. 

I am authorized to dismiss a request for hearing if it was not timely filed and I have not granted an extension of the period to file.  42 C.F.R. § 498.70(c).  

Petitioner filed his request for hearing 190 days after the period for requesting a hearing expired.  Petitioner admits that his request for hearing was untimely, but he blames that fact on what he now considers bad legal advice.  I do not comment upon the quality of the legal advice Petitioner received – that is a matter between him and counsel.  However, the decision not to file a timely request for hearing was Petitioner’s, even if he received bad advice, and I conclude there is not good cause to extend the time for filing the request for hearing to make it timely. 

I conclude that the CMS motion to dismiss has merit.  Accordingly, the motion to dismiss is granted and this case is dismissed pursuant to 42 C.F.R. § 498.70(c) because the request for hearing was not timely filed. 

An independent basis for dismissal pursuant to 42 C.F.R. § 498.70(b) exists in this case.  Petitioner requested that I remove or order the removal of his name from the CMS preclusion list early.  Petitioner had the right to request review of the addition of his name to the CMS preclusion list pursuant to 42 C.F.R. §§ 422.222(a)(2)(i), 423.120(c)(6)(v), 498.3(b)(20), and 498.5(n).  But, had Petitioner timely requested a hearing, preclusion list review would have been strictly limited to whether there was a basis for adding his name to CMS’s preclusion list.  83 Fed. Reg. 16,440, 16,642-43 (Apr. 16, 2018).  I have no authority to determine whether Petitioner’s name should be removed from the CMS 

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preclusion list early.  CMS may have authority to remove Petitioner’s name from the preclusion list early under 42 C.F.R. §§ 422.222(a)(6) and 423.120(c)(6)(vi).  But the regulations grant Petitioner no right to appeal a CMS action under 42 C.F.R. §§ 422.222(a)(6) and 423.120(c)(6)(vi). 

III.  Conclusion

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

Service by DAB E-File