Marcus Andre Robertson, DAB CR6751 (2025)

DISMISSAL

A Centers for Medicare & Medicaid Services (CMS) contractor denied the enrollment application of Marcus Andre Robertson (Petitioner), as a “Nutritionist, Nutrition Education, Community Health Worker” in the Medicare Program.  The CMS contractor upheld the denial on reconsideration.  Petitioner filed a request for a hearing (RFH) before an administrative law judge (ALJ) to dispute the denial, but Petitioner did so over four months beyond the statutory deadline without demonstrated good cause.  Therefore, I dismiss Petitioner’s RFH as untimely.  

I. Background and Procedural History

Most recently, on May 23, 2024, Petitioner applied to enroll in the Medicare program as an undefined non-physician specialty type for which he described as “Nutritionist, Nutrition Education, Community Health Worker.”  CMS Ex. 3 at 1.  On June 5, 2024, a CMS contractor denied Petitioner’s enrollment application pursuant to 42 C.F.R.

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§ 424.530(a)(1), because the provider/supplier type specialty Petitioner reported is not recognized under Medicare Part B.  CMS Ex. 4 at 1.  

On June 20, 2024, Petitioner timely requested reconsideration of the denial of enrollment.  CMS Ex. 5.  On September 3, 2024, a CMS contractor issued an unfavorable reconsidered determination.  CMS Ex. 7.  For the same reason as the initial denial, the contractor affirmed the denial noting that the specialty type Petitioner indicated in his enrollment application is not an approved specialty listed in the Medicare Program Integrity Manual (MPIM) Chapter 10.2.3, and Petitioner’s certification in Community Health Work is not sufficient to qualify him to enroll as one of the approved specialties listed in MPIM Chapter 10.2.3.  Id. at 2-3. 

The reconsidered determination included a notice of appeal rights:  

• FURTHER APPEAL RIGHTS – ADMINISTRATIVE LAW JUDGE (ALJ):  
• If you are satisfied with this decision, you do not need to take further action.  If you believe that this determination is not correct, you may request ALJ review for the reconsideration portion of this decision letter.  To request ALJ review, you must file your appeal with the Civil Remedies Division of the Departmental Appeals Board within 60 calendar days after the date of receipt of this decision.  

Id. at 3.  

On March 28, 2025, Petitioner filed with the Civil Remedies Division a RFH along with a copy of the reconsidered determination and five supporting documents.  E-File Doc. Nos. 1, 1_a, 1_b-f.  In the RFH, Petitioner argues that, even though Community Health Worker is not a recognized provider category under Medicare Part B, he should nonetheless qualify as a Nutrition Professional given the amount of nutrition training Petitioner has completed.  E-File Doc. No. 1 at 1.  Petitioner further argues that he is authorized under Massachusetts law to provide nutrition therapy as part of “whole health models of care,” and that he is uniquely positioned with his training and lived experience to assist vulnerable populations who would benefit from his treatment methods.  Id.  Petitioner’s supporting documents and links include an array of articles on community health workers, nutrition, and holistic wellness.  E-File Doc. Nos. 1, 1_b-f.  

On March 28, 2025, I acknowledged receipt of Petitioner’s RFH and set a briefing schedule.  E-File Doc. No. 2.  On April 17, 2025, CMS filed its pre-hearing exchange incorporating a motion to dismiss and, in the alternative, a motion for summary judgement along with nine proposed exhibits.  E-File Doc. Nos. 4, 4_a-j.  On April 24, 2025, Petitioner filed his pre-hearing exchange and a request for extension along with 

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14 proposed exhibits.  E-File Doc. Nos. 5, 5_a-q.  On April 29, 2025. CMS filed a reply brief.  E-File Doc. No. 6. 

II. Discussion

The Social Security Act authorizes the Secretary of Health and Human Services (Secretary) to create regulations governing the enrollment of providers and suppliers to furnish health care items and services to Medicare program beneficiaries.  See 42 U.S.C. § 1395cc(j).  When applying, providers and suppliers are required to submit a complete enrollment application and furnish supporting documentation to the Medicare contractor. 42 C.F.R. § 424.510(d)(1).  Providers and suppliers must submit “[a]ll applicable Federal and State licenses [and certifications]” and “[d]ocumentation associated with regulatory and statutory requirements necessary to establish a provider’s or supplier’s eligibility to furnish Medicare covered items or services to beneficiaries in the Medicare program.”  Id. at § 424.510(d)(2)(iii)(A)-(B).  CMS is authorized to deny a provider or supplier’s application for Medicare enrollment where “[t]he provider or supplier is determined to not be in compliance with the enrollment requirements described in [the regulations], or in the enrollment application applicable for its provider or supplier type . . . .”  Id. at § 424.530(a)(1). 

For purposes of the Medicare program, Part B provides coverage for “medical and other health services,” 42 U.S.C. § 1395k(a)(1); 42 C.F.R. § 410.10, which includes “medical nutrition therapy services.”  42 U.S.C. § 1395x(s)(2)(V); 42 C.F.R. §§ 410.72, 410.130, 410.132, 410.134.  Medical nutrition therapy (“MNT”) services are defined as “nutritional diagnostic, therapy, and counseling services for the purpose of disease management which are furnished by a registered dietitian or nutrition professional . . . pursuant to a referral by a physician.”  42 U.S.C. § 1395x(vv)(1); 42 C.F.R. §§ 410.130, 410.132.  By statute, MNT services must be provided by a “registered dietitian or nutrition professional,” which is defined in 42 U.S.C. § 1395x(vv)(2).  

A registered dietitian or nutrition professional means an individual who has:  (1) achieved “a baccalaureate or higher degree . . . with completion of the academic requirements of a program in nutrition or dietetics, as accredited by an appropriate national accreditation organization”; (2) “completed at least 900 hours of supervised dietetics practice under the supervision of a registered dietitian or nutrition professional”; and (3) been “licensed or certified as a dietitian or nutrition professional by the State in which the services are performed.”  42 U.S.C. § 1395x(vv)(2)(A)-(C)(i); 42 C.F.R. § 410.134(a)-(c).  For individuals “in a State that does not provide for . . . licensure or certification [of dietitians or nutrition professionals],” the statute explains that they must “meet[] such other criteria as the Secretary establishes.”  42 U.S.C. § 1395x(vv)(2)(C)(ii).  Under 42 C.F.R. § 410.134(c), “the individual will be deemed to have met [the licensure or certification] requirement if he or she is recognized as a ‘registered dietitian’ by the Commission on 

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Dietetic Registration or its successor organization” or satisfies the education and supervised practice requirements.  42 C.F.R. § 410.134(c). 

Massachusetts law dictates that “[t]he title ‘certified community health worker’ shall only be used by individuals who have met the requirements and qualifications for certification as a community health worker as established by the board and have been duly certified by the board.”  MASS. GEN. LAWS ANN. ch. 112, § 261 (CMS Ex. 9 at 18).  However, an individual’s certification as a community health worker does not permit the individual “to engage in or perform any act or service for which a license issued by a professional licensing board is required.”  Id. (stating that “[n]othing in this section shall permit a certified community health worker to engage in or perform any act or service for which a license issued by a professional licensing board is required”). 

Massachusetts separately licenses dietitians and nutritionists.  MASS. GEN. LAWS ANN. ch. 112, §§ 201-210 (CMS Ex. 9 at 1-13).  Massachusetts law requires specific educational and professional experience to apply for licensure as a dietitian or nutritionist.  Id. §§ 203-204 (CMS Ex. 9 at 4-6).  Applicants must also pass an examination.  Id. § 204 (CMS Ex. 9 at 6). 

In the present case, Petitioner filed a RFH based on a denial of his enrollment application for failing to specify a provider/supplier specialty type that is approved for enrollment in Medicare, and Petitioner’s certification in community health work is not sufficient to qualify him to enroll as one of the approved specialties.  However, Petitioner filed his RFH over four months late.  Petitioner then filed a request for extension on April 21, 2025, following CMS’s motion to dismiss for timeliness.  Petitioner does not dispute that the RFH is late.  Petitioner argues instead that the following provides good cause for filing his RFH late:  “[d]ue to medical reasons related to previous side effects of pharmaceuticals and multiple car accidents in the past, my life is very busy reversing, attenuating or managing these effects and conditions.”  E-File Doc. Nos. 5, 5_a.  

A RFH to dispute a denial of enrollment “must be filed within sixty days after notice of such decision is received by the individual making such request.”  42 U.S.C. §§ 405(b)(1), 1395cc(h)(1), (j)(8); see also 42 C.F.R. § 498.40(a)(2).  The presumed receipt date for the reconsidered determination is five days after mailing.  42 C.F.R. §§ 498.22(b)(3), 498.40(a)(2).  Untimely hearing requests are subject to dismissal.  42 C.F.R. § 498.70(c).  I may extend the time for filing only upon a showing of “good cause.”  42 C.F.R. § 498.40(c). 

The regulations do not define what constitutes “good cause” to extend the filing deadline for a hearing request and the Departmental Appeals Board “has never attempted to provide an authoritative or complete definition of the term ‘good cause’ in section 498.40(c)(2).”  Brookside Rehab. & Care Ctr., DAB No. 2094 at 7 n.7 (2007) (citing Glen Rose Med. Ctr. Nursing Home, DAB No. 1852 at 7 n.5 (2002)).  However, a basic 

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definition of “good cause” means “[a] legally sufficient reason.”  Black’s Law Dictionary 11th ed. (2019) (defined under the second definition of the word “cause”).  Therefore, good cause is more than just explaining why a request for hearing is late.  See Brookside, DAB No. 2094 at 7 n.7 (“Here, we need not decide exactly the scope of an ALJ’s discretion under [42 C.F.R. § 498.40(c)] since (under any reasonable definition of that term) the ALJ reasonably determined that [the provider] did not show ‘good cause.’”).  

Petitioner seeks a hearing to dispute CMS’s unfavorable reconsidered determination dated September 3, 2024.  That determination stated Petitioner could request a hearing if he disagreed with the determination; however, it cautioned that “you must file your appeal with the Civil Remedies Division of the Departmental Appeals Board within 60 calendar days after the date of receipt of this decision.”  CMS Ex. 7 at 3.  This deadline is consistent with the requirements in the Social Security Act and its implementing regulations.  42 U.S.C. §§ 405(b)(1), 1395cc(h)(1)(A), (j)(8); 42 C.F.R. § 498.40(a)(2).  

Under the regulations, I must presume that the date of receipt of the reconsidered determination is five days after the date on the reconsidered determination, unless there is a reasonable showing to the contrary.  42 C.F.R. § 498.22(b)(3).  Accordingly, I must presume that Petitioner received the determination on September 8, 2024.  Petitioner was, therefore, required to file a request for a hearing no later than November 7, 2024.  As indicated above, Petitioner did not file his hearing request until March 28, 2025, which is 141 days after the deadline. 

While I have no reason to doubt that Petitioner has had medical issues related to previous side effects of pharmaceuticals, experienced multiple car accidents at points in his life, and that the side effects and car accidents had lasting impacts on Petitioner’s life which he is working to reverse or manage, Petitioner’s statement is vague as to those problems and how those problems caused the over four-month late filing.  As a result, Petitioner’s explanation does not provide a legal excuse for failing to timely file his hearing request.  While medical conditions and intervening accidents may certainly provide good cause for a late filing, it is imperative that Petitioner provide with specificity how such effects directly resulted in the late filing.  While highly fact-dependent, to show good cause for an over four-month delay in filing on the basis of incapacitation due to a serious medical condition, Petitioner could provide both an affidavit from a treating practitioner as to the medical condition and its limitations, and evidence that Petitioner was prevented from and did not work during the time frame in question as a result.  

Dismissal of a RFH is appropriate when the reconsidered determination clearly explained the filing requirements and deadlines to the petitioner.  See Vanguard Vascular & Vein, PLLC, et al., DAB No. 2523 at 3-4 (2013) (upholding dismissal when the reconsidered determination correctly explained in “unambiguous and conspicuous language” that the petitioners had 60 calendar days from their receipt of the reconsidered determination to request a hearing before an ALJ); Waterfront Terrace, Inc., DAB No. 2320 at 6, 8 (2010) 

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(holding that no good cause existed to justify extending the filing deadline where the notice letter reasonably informed the Petitioner of its appeal rights).  Because Petitioner has not made a showing of good cause for filing his hearing request four-and-a-half months after the expiration of the 60-day deadline, I cannot extend the filing deadline for the RFH.  

Importantly, however, even if Petitioner had timely filed the RFH or demonstrated good cause for the late-filing, I do not have the authority to construct a new approved Medicare Part B provider/supplier specialty subtype for Petitioner – regardless of the benefits community health workers provide to vulnerable populations or the amount of nutrition training Petitioner has completed if that training does not satisfy the current regulatory requirements.1  My authority is limited to whether CMS’s denial of Petitioner’s enrollment application was proper based on the current applicable statutes and regulations.  Petitioner would have to pursue a separate path to seek amendment of the current Medicare-approved provider/supplier categories in order to enroll in Medicare based on his current certification and training.2 

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III. Conclusion

I therefore dismiss Petitioner’s hearing request for untimeliness.