Mega Hospice Services, Ruling No. 2026-18 (2026)

RULING ON MOTION TO REOPEN APPEAL

On April 15, 2026, Mega Hospice Services (Petitioner) filed a motion requesting that the Departmental Appeals Board (Board) reopen and vacate its ruling dismissing Petitioner’s request for review.  Mega Hospice Srvcs., Ruling Dismissing Request to Appeal (Dismissal), Docket No. A-26-1 (March 30, 2026).  Petitioner had sought Board review of an Administrative Law Judge’s (ALJ) dismissal of Petitioner’s request for an ALJ hearing.  Mega Hospice Srvcs., Civil Remedies Division (Div.) Docket (Dkt.) No. C-25-233 (April 7, 2025).  The Board dismissed Petitioner’s request for review pursuant to 42 C.F.R. § 498.83(b)(2), which authorizes dismissal if “[t]he affected party did not file timely or show good cause for [the] late filing.”  For the reasons stated below, we reopen the appeal to correct the administrative record and deny the motion to vacate the dismissal because the appeal remains untimely and Petitioner has not shown good cause.

Standard for Reopening under 42 C.F.R. Part 498

Title 42 C.F.R. § 498.100 authorizes the Board, on its own motion or at the request of either party, to reopen a decision within 60 days of the date of notice of the decision.  Section 498.100 does not specify the circumstances in which the Board may reopen a decision.  In appeals under 45 C.F.R. Part 16, the Board may “reconsider” a decision when a party “promptly alleges a clear error of fact or law.”  45 C.F.R. § 16.13.  The Board has held that this clear-error standard is “reasonably applied” in deciding whether to reopen a decision in an appeal (such as the instant case) brought under 42 C.F.R. Part 498.  See Experts Are Us, Inc., DAB No. 2342, at 2 (2010).  Reopening a decision is not a routine step in the administrative appeal process, but rather an opportunity for the parties to identify “any errors that make the decision clearly wrong.”  Id.; see also BioniCare Med. Technologies, Inc., Ruling No. 2011-3, at 1 (Dec. 2, 2010); Angela Johnson, Ruling No. 2021-1, at 1 (Sept. 2, 2021).

Case Background and Board Dismissal

Under applicable regulations, a request for review must be filed “within 60 days from receipt of the notice of decision” unless the Board, for good cause shown, extends the

Page 2

time for filing.  42 C.F.R. §§ 498.82(a)(2); 498.40(c).  Additionally, the Board’s Guidelines, which were transmitted with the ALJ’s dismissal, state that “[a] party wishing to appeal the ALJ decision or dismissal must file a request for review within 60 days after receiving the ALJ decision or dismissal unless that party files a written request for an extension which the Board grants for good cause shown.”  Guidelines – Appellate Review of Decisions of Administrative Law Judges Affecting a Provider’s Enrollment in the Medicare Program (Guidelines), “Starting the Review Process,” ¶ (c).1

In the Dismissal, the Board found (and Petitioner now admits) that Petitioner’s request for review was untimely, as Petitioner received the ALJ’s dismissal by DAB E-File on April 7, 2025, yet did not file its request for review until October 4, 2025, i.e., 121 days after the deadline.  Dismissal at 1-2.  As the Board stated, because the request for review did not address the lateness of the filing or assert good cause for the late filing, the Board issued an Order to Show Cause why the appeal should not be dismissed.  Id. at 2.  The Board determined that Petitioner did not respond to the Order to Show Cause and, accordingly, on March 30, 2026, the Board dismissed the request for review because Petitioner “has not shown good cause for failing to timely file the request for review.”  Id.

Discussion

On April 15, 2026, Petitioner filed a Motion to Reopen and Vacate Dismissal (Motion to Reopen), arguing that reopening its case was necessary because the Dismissal was based on a “clear factual error.”  Motion to Reopen at 2, 4.  Petitioner asserts that it did file a timely response to the Order to Show Cause.  Id.  Review of the case docket indicates that on October 31, 2025, Petitioner filed a “Response to Order to Show Cause.”  App. Div. Dkt. No. A-26-1, E-File #3.2   Petitioner argues that the Board’s conclusion that Petitioner did not respond to the Order was “demonstrably incorrect,” and “[r]eopening is necessary to correct the error and to ensure a fair adjudication.”  Motion to Reopen at 2, 4.  Petitioner requests that the Board reopen the appeal, vacate the Dismissal, consider its response to the Order to Show Cause, and permit the appeal to proceed.  Id. at 4.

Petitioner also argues that its response to the Order to Show Cause demonstrated “good cause.”  Motion to Reopen at 2.  That response stated that Petitioner’s failure to file a timely request for review “resulted solely from the negligence of a third-party administrative consultant” whom Petitioner had retained “to manage the [ALJ] hearing process and prepare the required submissions.”  Resp. to Order to Show Cause at 1, 3.  The response stated that the consultant “failed to take the necessary steps to file the pre-

Page 3

hearing exchange or to respond to the ALJ’s order to show cause,” and stated that Petitioner “only learned of the [ALJ’s] dismissal months later when internal leadership reviewed the status of the proceeding and discovered that the matter had been closed” and the time to appeal to the Board had passed.  Id.; see also Motion to Reopen at 3.

On a petition to reopen a Board decision, the core inquiry for the Board is whether the party requesting reopening has articulated a “clear error of fact or law in the Board’s decision that makes the decision clearly wrong.”  Angela Johnson, Ruling No. 2021-1, at 1 (Sept. 2, 2021) (quoting Experts Are Us, Inc. at 2).  After reviewing Petitioner’s Motion to Reopen and its Response to Order to Show Cause, we conclude Petitioner has identified a clear error of fact that requires reopening the appeal to correct the administrative record.

Nevertheless, Petitioner has not shown good cause for failing to timely file its request for review.  Petitioner’s Response to the Board’s Order to Show Cause and Motion to Reopen raise the same argument, that the “delay resulted from reasonable reliance on a third-party consultant retained to manage the appeal process.  [ ]This consultant: failed to file the required prehearing exchange; failed to respond to the ALJ’s Order to Show Cause; and failed to notify the Petitioner of the dismissal.”  Motion to Reopen at 3.

Petitioner does not contend that the ALJ’s dismissal was improperly served, that its representative failed to receive notice, or that any action by the Board prevented a timely filing.  Rather, Petitioner alleges only that its chosen representative “failed to file the required prehearing exchange; failed to respond to the ALJ’s Order to Show Cause; and failed to notify the Petitioner of the dismissal.”  Motion to Reopen at 3.  That is an internal breakdown between Petitioner and the individual it selected to act on its behalf, not a circumstance external to Petitioner and its representative that prevented compliance with the regulatory deadline.  The representative’s alleged omission may explain why Petitioner did not file on time, but it does not, without more, constitute good cause.

Nor is there any evidence in the record showing that the third-party consultant was in fact unable to timely file.  App. Div. Dkt. No. A-26-1.  Additionally, the Board is not persuaded by Petitioner’s assertions that “fundamental fairness” and the “interests of justice” strongly favor reopening because the record reflects that the ALJ’s dismissal was properly served and advised Petitioner of its appeal rights.  Petitioner’s inability to comply with the procedural requirements before both the ALJ and the Board due to an alleged breakdown in communications with its own representative does not constitute a defect in the administrative process.  Nor do generalized equitable concerns authorize the Board to disregard the filing requirements established in 42 C.F.R. Part 498.

“As courts and the Board have recognized, Medicare providers and suppliers, as participants in the program, have a duty to familiarize themselves with Medicare requirements.”  Francis J. Cinelli, Sr., D.O., DAB No. 2834, at 10 (2017).  Those

Page 4

requirements include filing deadlines plainly stated in applicable regulations, as reinforced by Guidelines provided directly to providers pursuing revocation challenges like this one.  Prior rulings and decisions also demonstrate that attorney/representative negligence is not grounds for good cause.  Hilltop Haven Nursing Home, Ruling on Motion to Dismiss, App. Div. Dkt. No. A-08-117 (2009), appeal dismissed, No. 09-60430 (5th Cir. Oct. 9, 2009).  Representative’s failure to meet filing deadlines is the type of avoidable, negligent error that does not constitute good cause.  Id. at 5; see also Bella Vita Health and Rehabilitation Ctr., Ruling Granting CMS’s Motion to Dismiss, App. Div. Dkt. No. A-16-1 (2015), appeal dismissed, No. 16-70172 (9th Cir. Aug. 4, 2016).

Here, based on the foregoing, Petitioner has not made the necessary showing under 42 C.F.R. § 498.83(b)(2).  Thus, the Board reopens the appeal to correct the administrative record, denies the motion to vacate dismissal, and closes the appeal.