Avista Hospice Arizona, LLC, DAB, CR6920, (2026)

DECISION

The Medicare enrollment and billing privileges Petitioner, Avista Hospice Arizona, LLC, are revoked pursuant to 42 C.F.R. § 424.535(a)(8)(ii),1 effective July 25, 2024, and Petitioner’s provider agreement is terminated.  There is a basis for listing Petitioner on the Centers for Medicare & Medicaid Services (CMS) preclusion list beginning May 14, 2025, the date of the reconsidered determination for the remainder of its ten-year reenrollment bar. 

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I.  Background

National Government Services, a CMS Medicare administrative contractor (MAC), notified Petitioner by letter dated June 25, 2024, that its Medicare enrollment and billing privileges were revoked pursuant to 42 C.F.R. § 424.535(a)(8)(ii)2 effective July 25, 2024, and Petitioner’s provider agreement was terminated.  The MAC advised Petitioner that the revocation was based on Petitioner’s abuse of billing privileges by submitting Medicare claims without sufficient documentation that care or services ordered were reasonable or necessary.  CMS alleged more specifically that 10 of Petitioner’s hospice related claims with dates of service from June 26 through August 31, 2023, were reviewed and eight were denied because supporting documentation did not support a terminal prognosis of six months or less, and initial hospice certifications were not signed by physicians.  CMS also alleged that 10 of Petitioner’s hospice related claims with dates of service of February 1 through 29, 2024, were reviewed and five were denied because documentation did not support a terminal prognosis of six months or less.  The MAC attached lists of the denied claims to the initial notification letter.  The MAC advised Petitioner that it was subject to a 10-year reenrollment bar pursuant to 42 C.F.R. § 424.535(c) to begin 30 days after the postmark date of CMS’s letter.  CMS also advised Petitioner that its name was being added to the CMS preclusion list.  CMS Exhibit (Ex.) 6. 

Petitioner requested reconsideration by letter dated August 29, 2024.  CMS Ex. 7.  On May 14, 2025, a CMS hearing officer issued a reconsidered determination.  The hearing officer upheld revocation of Petitioner’s Medicare enrollment and billing privileges, and termination of Petitioner’s provider agreement pursuant to 42 C.F.R. § 424.535(a)(8)(ii); a reenrollment bar of 10 years; and placing Petitioner’s name on the CMS preclusion list. 

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The hearing officer concluded that Petitioner engaged in a pattern or practice of submitting claims that did not meet Medicare requirements.  The hearing officer upheld placing Petitioner on the preclusion list concluding that the conduct that caused revocation was detrimental to the best interests of the Medicare program.  CMS Ex. 4 at 1, 12. 

Petitioner requested a hearing before an administrative law judge (ALJ) on July 19, 2025.  On July 21, 2025, the case was assigned to Judge Jacinta L. Alves for hearing and decision, and her Standing Order was issued.  The case was reassigned to me on December 23, 2025, in anticipation of Judge Alves’ retirement. 

On November 19, 2025, CMS filed a combined prehearing brief and motion for summary judgment (CMS Br.).  CMS also filed CMS Exs. 1 through 7.  On December 22, 2025, Petitioner filed its combined prehearing brief and response in opposition to CMS’ motion for summary judgment (P. Br.).  Petitioner also filed Petitioner’s Exhibits (P. Exs.) 1 through 8.  CMS filed a reply brief on January 21, 2026 (CMS Reply). 

Petitioner did not object to my consideration of CMS Exs. 1 through 7 and they are admitted as evidence. CMS objected to my consideration of P. Exs. 1 through 7.  CMS cites 42 C.F.R. § 498.56(e) arguing P. Exs. 1 through 7 were not presented to the CMS hearing officer on reconsideration and Petitioner has failed to show good cause for why it is offering the documents for the first time before me.  CMS also argues that P. Exs. 1 through 7 are not relevant to any issue that I may decide in this case.  CMS Reply at 11-12.  Petitioner argues it has good cause for submitting P. Ex. 1 through 7 for the first time before me because new counsel assigned after submission of the case on reconsideration identified the additional documents as necessary to support Petitioner’s arguments.  P. Br. at 4-5. 

I first consider whether the evidence offered by Petitioner is relevant and then whether there is good cause to present the evidence for the first time to me rather than when reconsideration was requested. 

Pursuant to 42 C.F.R. § 498.60(b)(1), I am to receive as evidence any evidence that is relevant and material to the issues before me.  Relevant evidence is any evidence that has a tendency to make a fact of consequence to an issue I may decide more or less probable than without the evidence.  Fed. R. Evid. 401.  The issues before me are whether there is a basis for revocation of Petitioner’s Medicare enrollment and billing privileges pursuant to 42 C.F.R. § 424.535(a)(8)(ii), and whether there is a basis for adding Petitioner’s name to the CMS preclusion list. 

In provider and supplier enrollment cases, I am required to examine new documentary evidence to determine whether there is good cause for the provider or supplier to submit

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the documentary evidence for the first time at the ALJ-level.  42 C.F.R. § 498.56(e).  If I conclude there is good cause the evidence must be included and may be considered in reaching a decision.  42 C.F.R. § 498.56(e)(2)(i).  If good cause does not exist, I must exclude the evidence and not consider it in reaching a decision.  42 C.F.R. § 498.56(e)(2)(ii).  CMS did not define the term good cause in the regulation.  Therefore, my discretion to make the good cause determination is not limited by the regulation. 

P. Ex. 1 is a certificate from the Accreditation Commission for Health Care (ACHC) granting Petitioner accreditation as a hospice from June 26, 2023 through June 26, 2026.  P. Ex. 2 is a screen shot from the ACHC website explaining accreditation and deeming authority.  There is no issue in this case that Petitioner was accredited by the ACHC as a hospice.  Petitioner’s Medicare enrollment and billing privileges were not revoked because Petitioner was not accredited or lost accreditation.  Therefore, its accreditation status is not at issue before me and P. Exs. 1 and 2 are not relevant.  Petitioner argues it met ACHC’s rigorous training and survey process before it received the accreditation.  P. Br. at 1, 4, 11, 15.  The nature of the ACHC’s training and survey process is not reflected by P. Ex. 1 and 2 and is not in issue.  I accept as true for purposes of summary judgment that Petitioner met high standards imposed by ACHC to be accredited a hospice.  Petitioner argues that CMS erred in determining to add Petitioner’s name to the CMS preclusion list by not considering its ACHC accreditation and that ACHC was requested by Petitioner to provide education regarding the alleged deficiencies with the alleged noncompliant claims.  P. Br. at 14.  Because Petitioner’s accreditation by ACHC is not in dispute, I conclude that P. Exs. 1 and 2 are not relevant and material to any issue in dispute before me and they are not admitted. 

Petitioner describes P. Ex. 3 as “Screenshots of PowerPoint Slides presented in January 17, 2024 Educational Session.”  Petitioner’s List of Proposed Exhibits and Witness (P. Ex. List).  It is possible to discern from the individual slides that they are from the MAC.  The first slide specifically discusses Round 1 of Petitioner’s Provisional Period of Enhanced Oversight (PPEO)3 and the fact that Round 2 would commence on January 27, 2024.  P. Ex. 3 at 1; P. Ex. 8 at 2 ¶ 7.  The remainder of the slides provide information regarding Medicare claims for hospice services.  P. Ex. 3 at 2-9.  In its brief, Petitioner states that the slides were presented on January 17, 2024, by a registered nurse in a remote educational session set up by the MAC.  P. Br. at 2.  Petitioner argues that the training was inadequate.  P. Br. at 9-10.  Petitioner makes this argument in a subsection of its brief titled “c.  The type of billing non-compliance and the specific facts surrounding said non-compliance (to the extent this can be determined) – 42 C.F.R.

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§ 424.535(a)(8)(ii)(C).”  P. Br. at 8.  Under 42 C.F.R. § 424.535(a)(8)(ii), CMS or the MAC determines that a provider or supplier has a pattern or practice of submitting claims that do not met Medicare requirements based on consideration of some or all of four factors listed in the regulation, which include the factor that considers the type of billing noncompliance and the specific facts to the extent those facts can be determined.  42 C.F.R. § 424.535(a)(8)(ii)(C).  The CMS hearing officer addressed in the reconsidered determination the factor under 42 C.F.R. § 424.535(a)(8)(ii)(C).  The hearing officer found that Petitioner’s claims were denied because documentation submitted by Petitioner did not support a terminal prognosis of six months or less and initial certifications of terminal illness were not timely signed by physicians.  The hearing officer referred to letters from the MAC to Petitioner dated December 22, 2023 and May 31, 2024, listing specific bases for denial of the 12 claims involved.  CMS Ex. 4 at 2, 7-9.  I conclude that P. Ex. 3 is relevant and that there is good cause to admit P. Ex. 3 for the first time in this proceeding.  Until the reconsidered determination was issued, Petitioner could not know how the CMS hearing officer would evaluate the factors under 42 C.F.R. § 424.535(a)(8)(ii).  The factors established by 42 C.F.R. § 424.535(a)(8)(ii) are to be considered by CMS or the MAC in determining whether there is basis for revocation.  P. Ex. 3 is admitted as evidence. 

P. Ex. 4 is not admitted as evidence.  In its prehearing brief, Petitioner represents that Petitioner sought guidance from ACHC.  I accept as true for purposes of summary judgment that Petitioner consulted with ACHC.  But that fact is not disputed and not relevant because it is not material to any issue that I must decide. 

P. Ex. 5 is characterized by Petitioner as a “Hospice Resources Document” the MAC provided to Petitioner.  P. Ex. List.  Petitioner offers P. Ex. 5 to show the targeted written education that Petitioner was provided during the PPEO.  The CMS hearing officer considered that Petitioner received one instance of specific targeted written education on December 22, 2023, and weighed that fact in determining that there was a basis for revocation under 42 C.F.R. § 424.535(a)(8)(ii)(C) and (D).  CMS Ex. 4 at 4, 9.  Because the education the MAC provided Petitioner was considered by the MAC hearing officer under 42 C.F.R. § 424.535(a)(8)(ii)(C) and (D) in determining that there was a basis for revocation, P. Ex. 5 is relevant.  There is good cause to admit the document for the first time before me, because Petitioner could not know before the reconsidered determination was issued how the hearing officer would weigh the fact that Petitioner received education from the MAC. 

Petitioner describes P. Exs. 6 and 7 as NGS claims summaries for two specific beneficiaries.  P. Ex. List.  Petitioner argues that the exhibits are examples showing that the MAC paid Petitioner’s claims for later dates of service for beneficiaries for which the MAC denied claims in the first and second rounds of the PPEO.  P. Br. at 3, 5, 7.  Petitioner argues that payment of subsequent hospice claims for two beneficiaries for

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whom claims were denied during the first and second rounds of the PPEO, shows the “inconsistency and rashness of [the MAC’s] decision” to revoke Petitioner’s Medicare enrollment and billing privileges.  P. Br. at 7.  Petitioner argues that: 

However, it is totally contradictory for NGS to deny a claim for a beneficiary alleging that the documentation does not support hospice eligibility, but then not retroactively seek an overpayment for prior claims paid for that beneficiary, and even more egregious, to continue to pay future claims submitted for that beneficiary.  These payments by NGS do not support NGS’ assertions that a “pattern” of abuse of billing privileges existed.” 

P. Br. at 8.  Under 42 C.F.R. § 424.535(a)(8)(ii)(A), in determining whether there is a pattern of practice of submitting claims that fail to meet Medicare requirements, CMS may consider “[t]he percentage of claims that were denied during the period under consideration.”  Petitioner argues that CMS views the period under consideration referred to by the regulation as limited to only the 20 claims considered during the first and second rounds of the PPEO.  Petitioner urges that a wider period should be considered and points to the inconsistency that some claims from before and after the first and second rounds of the PPEO were paid and some were not for the same beneficiaries for whom hospice claims were denied during the first and second rounds of the PPEO.  P. Br. at 6-8.  Petitioner acknowledges that my role “is not to determine the medical necessity of the claims” involved.  P. Br. at 8, 10.  Setting aside Petitioner’s legal argument about what should be the period under consideration, I conclude that P. Exs. 6 and 7 are relevant as evidence in rebuttal of the CMS hearing officer’s findings that there was a pattern or practice of submitting noncompliant claims.  The need for rebuttal arose with the reconsidered determination and there is good cause to admit the exhibits at this stage.  42 C.F.R. § 498.56(e)(2).  P. Exs. 6 and 7 are admitted and considered as evidence. 

CMS did not object to my consideration of P. Ex. 8, the declaration of Michele Gill, Petitioner’s acting administrator.  P. Ex. 8 is admitted and considered as evidence. 

II.  Discussion

A.  Medicare Enrollment and Billing Privileges and Preclusion List

Sections 1811 through 1821 of the Social Security Act (the Act) (42 U.S.C. §§ 1395c-1395i-5) establish the hospital insurance benefits program for the aged and disabled known as Medicare Part A.  Section 1831 of the Act (42 U.S.C. § 1395j) establishes the supplementary medical insurance benefits program for the aged and disabled known as Medicare Part B.  Administration of both the Part A and B programs is through the

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MACs.  Act §§ 1816(a), 1842(a) (42 U.S.C. §§ 1395h(a), 1395u(a)).  Payment under the programs for services rendered to Medicare-eligible beneficiaries may only be made to eligible providers of services and suppliers. 4  Act §§ 1815, 1817, 1834(j)(1), 1835(a), 1842(h)(1) (42 U.S.C. §§ 1395g, 1395i, 1395m(j)(1), 1395n(a), 1395u(h)(1)).  Petitioner was enrolled in Medicare as a provider of hospice services.  P. Ex. 8 at 1 ¶ 3; CMS Ex. 4. 

The Act requires that the Secretary of Health and Human Services (Secretary) issue regulations that establish a process for the enrollment in Medicare of providers and suppliers, including the right to a hearing and judicial review of certain enrollment determinations, such as revocation of enrollment and billing privileges.  Act § 1866(j) (42 U.S.C. § 1395cc(j)).  Pursuant to 42 C.F.R. § 424.505, a supplier must be enrolled in the Medicare program and be issued a billing number to have billing privileges and to be eligible to receive payment for services rendered to a Medicare-eligible beneficiary. 

The Secretary has delegated the authority to revoke enrollment and billing privileges to CMS.  42 C.F.R. § 424.535.  CMS or its Medicare contractor may revoke an enrolled provider’s or supplier’s Medicare enrollment and billing privileges and terminate any corresponding provider or supplier agreement for any of the reasons listed in 42 C.F.R. § 424.535.  If CMS revokes a provider’s or supplier’s Medicare billing privileges, the revocation generally becomes effective 30 days after CMS or one of its contractors mails the revocation notice to the provider or supplier, subject to some exceptions not applicable in this case.  42 C.F.R. § 424.535(g).5  After a provider’s or supplier’s Medicare enrollment and billing privileges are revoked, the supplier is barred from reenrolling in the Medicare program for a minimum of one year, but no more than 10

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years, depending upon the seriousness of the basis for revocation, with exceptions not applicable in this case.  42 C.F.R. § 424.535(c)(1)(i). 

Effective June 15, 2018, CMS was required to establish a preclusion list as defined by 42 C.F.R. §§ 422.2 and 423.100.  There is only one preclusion list.  83 Fed. Reg. 16,440, 16,641-67 (April 16, 2018).  CMS adds to the preclusion list individuals or entities whose Medicare enrollment and billing privileges are revoked pursuant to 42 C.F.R. § 424.535; who are currently subject to a reenrollment bar under 42 C.F.R. § 424.535(c); and if CMS determines that the conduct that is the basis for revocation is detrimental to the best interests of the Medicare program.  In deciding whether conduct is detrimental to Medicare, CMS considers the seriousness of the conduct; the degree to which the conduct could affect the integrity of the Medicare program; and other evidence CMS considers relevant.  Individuals or entities that were not enrolled in Medicare may be added to the preclusion list if CMS determines that their conduct would have provided a basis for revocation of Medicare enrollment and after consideration of the other factors listed above.  42 C.F.R. §§ 422.2, 423.100.  No payment under Medicare Parts C and D may be made to anyone on the preclusion list.  42 C.F.R. §§ 422.222-.224, 422.504(i)(2)(v), 423.120(c)(6).  CMS must notify an individual or entity in writing that its name is being added to the preclusion list, the basis for the action, and inform the individual or entity of the right to ALJ review and appeal pursuant to 42 C.F.R. pt. 498.  42 C.F.R. §§ 422.222(a)(2), 423.120(c)(6)(v). 

A provider or supplier whose enrollment and billing privileges have been revoked or who has been placed on the preclusion list may request reconsideration and review as provided by 42 C.F.R. pt. 498.  42 C.F.R. §§ 424.545(a), 422.222(a)(2), 423.120(c)(6)(v).  A provider or supplier submits a written request for reconsideration to CMS or its contractor.  42 C.F.R. § 498.22(a).  CMS or its contractor must give notice of its reconsidered determination to the provider or supplier, giving the reasons for its determination and specifying the conditions or requirements the provider or supplier failed to meet, and the right to an ALJ hearing.  42 C.F.R. § 498.25.  If the decision on reconsideration is unfavorable to the provider or supplier, it has the right to request a hearing by an ALJ and further review by the Departmental Appeals Board (Board).  Act § 1866(j)(8) (42 U.S.C. § 1395cc(j)(8)); 42 C.F.R. §§ 424.545, 498.3(b)(17), (20), 498.5.  A hearing on the record, also known as an oral hearing, is required under the Act, unless waived.  Crestview Parke Care Ctr. v. Thompson, 373 F.3d 743, 748-51 (6th Cir. 2004).  CMS is also granted the right to request ALJ review of a reconsidered determination with which it is dissatisfied.  42 C.F.R. § 498.5(l)(2).  The provider or supplier bears the burden to demonstrate that it meets enrollment requirements with documents and records.  42 C.F.R. § 424.545(c).  Preclusion list review is strictly limited to whether there is a basis for adding the individual or entity to the preclusion list.  83 Fed. Reg. at 16,642. 

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B.  Issues

Whether there was a basis for the revocation of Petitioner’s billing privileges and enrollment in Medicare and termination of Petitioner’s provider agreement; and

Whether there is a basis to list Petitioner on the CMS preclusion list. 

C.  Findings of Fact, Conclusions of Law, and Analysis

My conclusions of law are set forth in bold followed by the undisputed facts and analysis. 

1.  Summary judgment is appropriate. 

Judge Alves advised the parties in her Standing Order that summary judgment following the principles of Fed. R. Civ. Pro. 56 was an available procedural device in this case.  She also advised them that oral argument would not generally be granted on a motion for summary judgment.  Standing Order ¶ 8.  The Civil Remedies Division Procedures (CRDP) also provide for the availability of summary judgment akin to the procedure described by Fed. R. Civ. Pro. 56 and decisions of the federal courts applying that rule or as provided by ALJ order.  CRDP § 19a. 

CMS has moved for summary judgment.  Petitioner opposes summary judgment for CMS. 

Petitioner’s Medicare enrollment and billing privileges have been revoked, its provider agreement has been terminated, and its name has been placed on the CMS preclusion list.  Therefore, Petitioner has a right to a hearing and judicial review, and a hearing on the record is required under the Act.  Act §§ 205(b), 1866(h)(1), (j); 42 C.F.R. §§ 498.3(b)(17)(i), (20), 498.5(l), (n); Crestview, 373 F.3d at 748-51.  A party may waive appearance at an oral hearing but must do so affirmatively in writing.  42 C.F.R. § 498.66.  In this case, Petitioner has not waived the right to oral hearing or otherwise consented to a decision based only upon the documentary evidence or pleadings.  Accordingly, disposition on the written record alone is not permissible, unless summary judgment is appropriate as I conclude it is in this case. 

Summary judgment is not automatic upon request but is limited to certain specific conditions.  The Secretary’s regulations at 42 C.F.R. pt. 498 that establish the procedures to be followed in adjudicating Petitioner’s case do not establish a summary judgment procedure or recognize such a procedure.  However, the Board has long accepted that summary judgment is an acceptable procedural device in cases adjudicated pursuant to 42 C.F.R. pt. 498.  See, e.g., Ill. Knights Templar Home, DAB No. 2274 at 3-4 (2009);

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Garden City Med. Clinic, DAB No. 1763 (2001); Everett Rehab. & Med. Ctr., DAB No. 1628 at 3 (1997).  The Board also has recognized that the Federal Rules of Civil Procedure do not apply in administrative adjudications such as this, but the Board has accepted that Fed. R. Civ. Pro. 56 and related cases provide useful guidance for determining whether summary judgment is appropriate. 

Summary judgment is appropriate and no hearing is required where either: there are no disputed issues of material fact and the only questions that must be decided involve application of law to the undisputed facts; or, the moving party must prevail as a matter of law even if all disputed facts are resolved in favor of the party against whom the motion is made.  The Board follows the general approach of the federal courts in evaluating whether summary judgment in lieu of a hearing is appropriate.  The movant bears the initial burden of demonstrating that there are no genuine issues of material fact for trial and that the movant is entitled to judgment as a matter of law.  When confronted with a properly supported motion for summary judgment, the nonmoving party “may not rest upon the mere allegations or denials of his pleading, but . . . must set forth specific facts showing that there is a genuine issue for trial.”  Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986) (quoting First Nat’l Bank of Az. v. Cities Serv. Co., 391 U.S. 253, 249 (1968)); see also, Fed. R. Civ. P. 56(c); Ill. Knights Templar Home, DAB No. 2274, at 3-4 (2009); Garden City Med. Clinic, DAB No. 1763 (2001), Everett Rehab. & Med. Ctr., DAB No. 1628 at 3 (1997) (in-person hearing required where nonmovant shows there are material facts in dispute that require testimony); Big Bend Hosp. Corp., DAB No. 1814 at 13 (2002) (in some cases, any factual issue is resolved on the face of the written record because the proffered testimony, even if accepted as true, would not make a difference).  In opposing the motion for summary judgment, the nonmovant bears the burden of showing that there are material facts that are disputed either affecting the movant’s prima facie case or that might establish a defense.  It is insufficient for the nonmovant to rely upon mere allegations or denials to defeat the motion and proceed to hearing.  The nonmovant must show that there is a genuine dispute as to a material fact that requires a trial by affidavits or other evidence that sets forth specific facts.  If the nonmovant cannot show by some credible evidence that there exists some genuine issue for trial, then summary judgment is appropriate and the movant prevails as a matter of law.  Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986).  A test for whether an issue is regarded as genuine is if “the evidence [as to that issue] is such that a reasonable jury could return a verdict for the nonmoving party.”  Id. at 248.  In evaluating whether there is a genuine issue as to a material fact, an ALJ must view the facts and the inferences to be drawn from the facts in the light most favorable to the nonmoving party.  Pollock v. Am. Tel. & Tel. Long Lines, 794 F.2d 860, 864 (3rd Cir. 1986). 

The Board has explained that the ALJ’s role in deciding summary judgment is different from deciding a case on the merits after a hearing.  On summary judgment, credibility determinations are not made, the evidence is not weighed, and the ALJ does not decide

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which inferences to draw from the facts.  Rather, the evidence of record is construed in a light most favorable to the nonmovant without determining which version of the facts is more likely true.  Venetian Gardens, DAB No. 2286 at 10-11 (2009); Ill. Knights Templar Home, DAB No. 2274 at 8 (2009). 

The Secretary has not provided in 42 C.F.R. pt. 498 for the allocation of the burden of persuasion or the quantum of evidence required to satisfy the burden of persuasion.  However, the Board has provided some persuasive analysis regarding the allocation of the burden of persuasion in cases subject to 42 C.F.R. pt. 498.  Batavia Nursing & Convalescent Ctr., DAB No. 1904 (2004), aff’d, Batavia Nursing & Convalescent Ctr. v. Thompson, 129 F. App’x 181 (6th Cir. 2005). 

Petitioner opposes summary judgment arguing that there are genuine disputes of material fact related to the CMS hearing officer’s consideration of the factors under 42 C.F.R. § 424.535(a)(8)(ii), the reenrollment bar, and the factors considered in determining to place Petitioner’s name on the CMS preclusion list.  P. Br. 

Viewing the evidence before me in a light most favorable to Petitioner and drawing all inferences in Petitioner’s favor, I conclude that there are no genuine disputes as to any relevant material facts pertinent to revocation under 42 C.F.R. § 424.535(a)(8)(ii) or the addition of Petitioner to the preclusion list that require a hearing in this case.  The undisputed relevant and material facts in this case establish as a matter of law a basis for the revocation of Petitioner’s Medicare enrollment and billing privileges.  Petitioner’s asserted defenses must also be resolved against Petitioner as matters of law.  Having determined that there is a basis for revocation, whether there is a basis for adding Petitioner to the CMS preclusion list must also be resolved against Petitioner as a matter of law.  CMS is entitled to judgment as a matter of law.  Accordingly, summary judgment is appropriate. 

2.  Billing privileges are abused within the meaning of 42 C.F.R. § 424.535(a)(8)(ii) when a provider or supplier engages in a pattern or practice of submitting claims that do not meet Medicare requirements. 

3.  Based on prepayment reviews as part of two rounds of a PPEO, CMS determined that Petitioner engaged in a pattern or practice of submitting claims to Medicare that did not meet Medicare requirements. 

4.  There is a basis for revocation of Petitioner’s Medicare enrollment and billing privileges pursuant to 42 C.F.R. § 424.535(a)(8)(ii). 

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5.  The effective date of revocation in this case was July 25, 2024, 30 days after June 25, 2024,6 the date the notice of the initial determination was mailed to Petitioner.  42 C.F.R. § 424.535(g). 

6.  The duration of the 10-year bar to reenrollment is not subject to my review. 

7.  There is a basis for adding Petitioner’s name to the CMS preclusion list effective May 14, 2025, the date of the reconsidered determination, for the duration of Petitioner’s bar to reenrollment. 

a.  Undisputed Facts

Judge Alves advised the parties regarding summary judgment “that a fact alleged and not specifically denied, may be accepted as true for purposes of a motion or cross-motion for summary judgment.  Any evidence will be considered admissible and true unless specific objection is made to its admissibility and accuracy.”  Standing Order ¶ 8.  The relevant material facts are undisputed, or for purposes of summary judgment, Petitioner’s averred facts are accepted as true, and all favorable inferences are drawn in favor of Petitioner. 

Providers and Suppliers Agree to Comply with Medicare Requirements

The requirements for a provider or supplier to establish and maintain the right to file claims with Medicare, known as Medicare billing privileges, are established by 42 C.F.R. pt. 424 subpt. P.  Pursuant to 42 C.F.R. §§ 424.500 and 424.505, a provider or supplier must be enrolled in the Medicare program and be issued a billing number to have billing privileges and to be eligible to receive payment from Medicare for Medicare covered services or supplies provided to a Medicare beneficiary. 

A prospective provider or supplier must file the appropriate enrollment application.  42 C.F.R. § 424.510(a).  The enrollment application must be signed by an individual who has authority to bind a provider or supplier legally and financially to comply with Medicare program requirements.  The signature “attests that the information submitted [in the enrollment application] is accurate and that the provider or supplier is aware of,

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and abides by, all applicable statutes, regulations, and program instructions.7  42 C.F.R. § 424.510(d)(3).  An enrolled provider or supplier must periodically certify to CMS that it continues to comply with Title XVIII of the Act and Medicare regulations.  42 C.F.R. § 424.516(a)(1).  The federal courts and the Board have indicated that providers and suppliers participating in Medicare have a duty to be familiar with Medicare requirements.  E.g., Heckler v. Cmty. Health Servs. of Crawford County, Inc., 467 U.S. 51 at 64 (1984); Waterfront Terrace Inc., DAB No. 2320 (2010).  But I note that prospective and enrolled providers and suppliers agree as a condition for enrolling and maintaining enrollment in Medicare that they know and abide by all applicable statutes, regulations, and program instruction, which requires more than familiarity. 

Hospice Care and Hospice Programs

Hospice care is defined in section 1861(dd)(1) of the Act, to include a list of specific items and service provided to a terminally ill individual by or arranged by a hospice program based on a written plan established and reviewed by the individuals attending physician and the hospice medical director or the hospice interdisciplinary group.  Act § 1861(dd)(1).  An individual is terminally ill if he or she has a medical prognosis of a life expectancy of six months or less.  Act § 1861(dd)(3)(A).  A hospice program is a provider of services under the Act.  Act § 1861(u).  A hospice program is defined in section 1861(dd)(2).  A hospice program must enroll in Medicare as a provider of services under section 1866 of the Act.  Act § 1866. 

The Secretary has promulgated regulations governing hospice care at 42 C.F.R. pt 418.  There are two requirements for an individual to be eligible to elect hospice care under Medicare: (1) the individual must be entitled to Medicare Part A benefits; and (2) the individual must be certified as being terminally ill under 42 C.F.R. § 418.22.  42 C.F.R. § 418.20.  The contents required for a certification of terminal illness are specified by 42 C.F.R. § 418.22(b). 

(b) Content of certification.  Certification will be based on the physician’s or medical director’s clinical judgment regarding the normal course of the individual’s illness.  The certification must conform to the following requirements: 

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(1) The certification must specify that the individual’s prognosis is for a life expectancy of 6 months or less if the terminal illness runs its normal course. 

(2) Clinical information and other documentation that support the medical prognosis must accompany the certification and must be filed in the medical record with the written certification as set forth in paragraph (d)(2) of this section.  Initially, the clinical information may be provided verbally, and must be documented in the medical record and included as part of the hospice’s eligibility assessment. 

(3) The physician must include a brief narrative explanation of the clinical findings that supports a life expectancy of 6 months or less as part of the certification and recertification forms, or as an addendum to the certification and recertification forms. 

(i) If the narrative is part of the certification or recertification form, then the narrative must be located immediately prior to the physician’s signature. 

(ii) If the narrative exists as an addendum to the certification or recertification form, in addition to the physician’s signature on the certification or recertification form, the physician must also sign immediately following the narrative in the addendum. 

(iii) The narrative shall include a statement directly above the physician signature attesting that by signing, the physician confirms that he/she composed the narrative based on his/her review of the patient’s medical record or, if applicable, his/her examination of the patient. 

(iv) The narrative must reflect the patient’s individual clinical circumstances and cannot contain check boxes or standard language used for all patients. 

(v) The narrative associated with the 3rd benefit period recertification and every subsequent recertification must include an explanation of why the clinical findings of the

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face-to-face encounter support a life expectancy of 6 months or less. 

(4) The physician or nurse practitioner who performs the face-to-face encounter with the patient described in paragraph (a)(4) of this section must attest in writing that he or she had a face-to-face encounter with the patient, including the date of that visit.  The attestation must include the physician’s or nurse practitioner’s signature and the date it was signed.  The attestation could be a separate and distinct section of, or an addendum to, the recertification or a clinical note that indicates the face-to-face encounter occurred, and includes the clinical findings of the face-to-face encounter, the date of the visit, the signature of the physician or nurse practitioner who conducted the face-to-face encounter, and the date of the signature.  If the attestation of the nurse practitioner or a non-certifying hospice physician is a separate and distinct section of, or an addendum to, the recertification, the attestation shall state that the clinical findings of that visit were provided to the certifying physician for use in determining continued eligibility for hospice care. 

(5) All certifications and recertifications must be signed and dated by the physician(s), and must include the benefit period dates to which the certification or recertification applies. 

42 C.F.R. § 418.22(b). 

A Medicare Part A eligible beneficiary or representative files an election statement for hospice care with a particular hospice.  42 C.F.R. § 418.24(a), (b).  The hospice admits a beneficiary to hospice care only on recommendation of the hospice medical director or physician member of the hospice interdisciplinary group, in consultation with or input from the beneficiary’s attending physician.  42 C.F.R. § 418.25(a).  Conditions of participation for a hospice program are established under 42 C.F.R. pt. 418, subpt. C. 

Hospice services must meet requirements to be covered under Medicare Part A. 

Services must be reasonable and necessary for palliation and management of the terminal illness and related conditions;

Hospice must be elected by the beneficiary or representative;

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A plan of care must be established and periodically reviewed by the beneficiary’s attending physician, the hospice medical director, and the hospice interdisciplinary group;

The plan of care must be established before hospice care is provided;

Services provided must be consistent with the plan of care; and

There must be a certification that the beneficiary is terminally ill. 

42 C.F.R. § 418.200.  The list of covered hospice services is found in 42 C.F.R. § 418.202. 

CMS Medicare program instructions for coverage of hospice services under Medicare Part A are found in CMS Pub. 100.08, Medicare Benefit Policy Manual (MBPM), chap. 9.  These are program instructions Petitioner agreed to know and abide by as a condition of participating in Medicare.  42 C.F.R. §§ 424.505 (must be enrolled to receive payment for Medicare covered items or service from Medicare or beneficiary), 424.510(d)(3) (must attest aware of and abides by all applicable statutes, regulations, and program instructions), 424.510(d)(10) (legally responsible for accuracy, completeness, and truthfulness of all information on application regardless of who completed the application).  MBPM § 10 (rev. 246, eff. Dec. 17, 2018) was in effect during both rounds of the PPEO.  To be eligible for hospice care under Medicare, a beneficiary must be entitled to benefits under Medicare Part A.  The beneficiary must be certified as being terminally ill, that is, the beneficiary is expected to live six months or less, if the illness runs its normal course.  Medicare coverage exists only if the hospice care is provided by or under arrangements by a Medicare certified hospice.  A hospice may admit a beneficiary on recommendation of the hospice medical director in consultation with or input from any attending physician (attending physician may be a nurse practitioner or physician’s assistant).  The hospice medical director must consider when certifying a beneficiary as terminally ill: the diagnosis of the terminal condition; other health conditions; and current clinically relevant information supporting all diagnoses.  Section 1814(a)(7) of the Act provides that the certification of a terminal illness for purpose of receiving Medicare hospice benefits is based on the clinical judgment of the hospice medical director or another physician in the hospice interdisciplinary group and any attending physician regarding the normal course of the beneficiary’s illness.  Only a medical doctor or doctor of osteopathy can certify or recertify a terminal illness. 

Under MBPM § 20.1 (rev. 246, eff. Dec. 17, 2018) clinical information and other documentation supporting the medical prognosis must be filed in the beneficiary’s medical record with the certification of terminal illness.  The written certification must be filed in the beneficiary’s medical record before a claim is submitted to the MAC. 

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MBPM §20.1 provides that Medicare requires a complete certification or recertification for Medicare to cover and pay for hospice services.  The contents for a certification are listed in 42 C.F.R. § 418.22(b).  MBPM § 20.1. 

Medicare Hospice Claims

A claim is the transmission of a request for payment for the provision of health care with necessary information from a health care provider to a health plan.  45 C.F.R. § 162.1101(a).  The requirements for all claims are established by 42 C.F.R. pt. 424, subpt. C.  The claim forms to be used by various types of providers and suppliers are specified in 42 C.F.R. § 424.32(b).  Claims for items or services provided to Medicare beneficiaries must be filed with the correct fiscal intermediary or carrier electronically.  42 C.F.R. § 424.32(a), (d)(2).  Generally, Medicare pays a provider for services furnished by the provider.  42 C.F.R. § 424.51. 

Payment procedures applicable to hospice care are established by 42 C.F.R. §§ 418.302 and 418.304.  Generally, the MAC reimburses the hospice the appropriate amount for each day an eligible Medicare beneficiary is under the hospice’s care, regardless of the amount of services furnished on any given day.  42 C.F.R. § 418.302(d)(1), (e). 

Claim Appeal Process

My authority or jurisdiction, i.e., the scope of review, is limited by Congress and the Secretary.  A limitation important in this case is that claim denials and the recovery of overpayments by Medicare are subject to an entirely different administrative appeals procedure before different adjudicators under different regulations than those applicable to proceedings before me.  The regulations applicable to the claim appeals process provide that each determination in that process is final and binding upon the parties unless further appealed.  Devine Sols. Grp. LLC, DAB No. 3159 at 3 (2024).  Denial of individual Medicare claims are not subject to my review or Board review but are subject to the review procedures established by 42 C.F.R. pt. 405 subpt. I.  Id. at 17 (citing Ronald J. Grason, M.D., DAB No. 2592 at 8 (2014), aff’d sub nom. Grason v. Burwell, No. 14-2267 (C.D. Ill. Feb. 23, 2016), aff’d, 659 F. App’x. 899 (7th Cir. 2016), cert. denied, 583 U.S. 842 (2017)). 

In section 1869(a)(1) of the Act, Congress required the Secretary to issue regulations and make initial determinations regarding benefits under Medicare Parts A and B, including entitlement to benefits and claims for benefits.  Section 1870(b) of the Act requires the Secretary recover or otherwise resolve overpayments by Medicare to any provider or supplier for items or services furnished to an individual under the Act.  Congress established deadlines for initial determinations and redeterminations for claims and

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provided that no initial determination was subject to reconsideration or appeal until there was a redetermination by the fiscal intermediary or MAC.  Act § 1869(a)(2)-(3).  Congress provided for reconsideration of the redetermined initial determination by a Qualified Independent Contractor (QIC), a hearing before an ALJ or attorney adjudicator, and the Medicare Appeals Council, and subsequent judicial review.  Act § 1869(b)(1), (c), (d)(1)-(2). 

Regulations the Secretary promulgated to satisfy the requirements imposed by Congress in section 1869 of the Act related to processing claims and in sections 1870(b) and (c) and 1893(f)(2) (which incorporates the appeals procedure required by section 1869(b)(1))  of the Act for the waiver of adjustment or recovery of overpayments of Medicare benefits to providers and suppliers for claims on behalf of Medicare beneficiaries, are found in 42 C.F.R. pt. 405, subpt. I.  Pursuant to 42 C.F.R. § 405.924(b), a MAC makes an initial determination regarding claims for benefits under Medicare Parts A and B made by or on behalf of Medicare beneficiaries or the overpayment of such benefits.  Pursuant to 42 C.F.R. § 405.928, an initial determination is binding upon all parties to the initial determination unless there is a redetermination or reopening.  Under 42 C.F.R. § 405.978, a reconsideration determination is final and binding on all parties unless there is an ALJ or attorney adjudicator decision issued, there is a request for expediated judicial review, or the reconsidered determination is reopened and revised.  Pursuant to 42 C.F.R. § 405.984, revised determinations or initial determinations, redeterminations, reconsiderations, the Office of Medicare Hearings and Appeals (OMHA) ALJ/attorney adjudicator decisions, or the Medicare Appeals Council decisions become final and binding on the parties unless there is higher level appeal or reopening.  Pursuant to 42 C.F.R. § 405.1048(a), an ALJ or attorney adjudicator’s decision becomes final and binding on the parties unless there is an appeal to the Medicare Appeals Council or for expedited judicial review, or the decision is only a recommended decision.  A Medicare Appeals Council decision is final and binding on the parties unless a federal district court issues a decision modifying the Medicare Appeals Council decision or the decision is reopened.  42 C.F.R. § 405.1130.  The procedural due process provided by 42 C.F.R. pt. 405, subpt. I was established by the Secretary to satisfy Congress’ requirements in section 1869 of the Act.  Under the process, a right to review is accorded after the initial determination denying a claim for Medicare payment, and after redetermination, reconsideration, ALJ/attorney adjudicator, and Medicare Appeals Council reviews.  If the next higher level of review or appeal is not requested, the decision issued becomes final and binding upon the parties.  OMHA provides the ALJ hearings required by section 1869(b)(1) of the Act and provided in 42 C.F.R. pt. 405, subpt. I, §§ 405.1000-.1058. 

The process for enrollment of providers and suppliers is different from the process for handling claims they file to recover from Medicare for items or services they provide to Medicare beneficiaries.  Congress required that the Secretary establish by regulation the process for enrollment of providers and suppliers.  Act § 1866(j).  The Secretary was

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required by Congress to provide a right to hearing in cases of denial or non-renewal of Medicare enrollment.  Act § 1866(j)(8).  The Secretary promulgated regulations at 42 C.F.R. pt. 424 for enrolling providers and suppliers who can file claims and be paid by Medicare for care or services delivered to Medicare beneficiaries.  42 C.F.R. § 424.1(b).  Medicare enrollment requirements and enrollment procedures are specified in 42 C.F.R. pt. 424, subpt. P.  The rules for revocation of enrollment are established by 42 C.F.R. § 424.535.  Under 42 C.F.R. § 424.545(a), a provider or supplier denied Medicare enrollment or whose enrollment is revoked is granted the right to appeal under the procedures established by 42 C.F.R. pt. 498.  Hearings under 42 C.F.R. pt. 498 are provided by ALJs of the Board, not OMHA, and appeals of those decisions are to the Board not the Medicare Appeals Council.  42 C.F.R. §§ 498.1, 498.5, 498.44(c).  In the case of revocation of Medicare enrollment and billing privileges, the issue for appeal and review is whether CMS had one or more of the reasons to revoke authorized in 42 C.F.R. § 424.535.  The Board has consistently held that ALJ and Board review of a revocation determination is limited to determining whether the elements of one of the bases for revocation authorized by 42 C.F.R. § 424.535(a) are satisfied.  Letantia Bussell, M.D., DAB No. 2196 at 13 (2008); John Hartman, D.O., DAB No. 2564 at 6 (2014); Stanley Beekman, D.P.M., DAB No. 2650 at 10 (2015). 

I find as fact that the process available for Petitioner to challenge the basis for denial of its claims during Round 1 and 2 of the PPEO was the procedural process provided by 42 C.F.R. pt. 405, subpt. I.  Petitioner filed one claim appeal related to a denial from Round 1 of the PPEO and the claim denial was overturned.  According to the CMS hearing officer three more claim appeals were filed that resulted in no relief for Petitioner.  There is no evidence that redetermination was requested by Petitioner for any of the other of other denials from the two rounds of the PPEO.  Petitioner does not deny that it knew of the right to request review of claims denials under the process provided by regulation.  And Petitioner clearly knew about the process as it filed a few claims appeals.  Therefore, I conclude that under the provisions of 42 C.F.R. pt. 405, the determinations as to the basis for denials of the claims were final and binding upon Petitioner.  42 C.F.R. §§ 405.928, 405.978, 405.1048(a), 405.1130. 

I conclude that the MAC’s claims determinations are final and binding on Petitioner.  There is no statutory or regulatory authority for me to review the basis for denial of the claims from Rounds 1 and 2 of the PPEO.  I cannot conduct a second review of the claims to determine whether the tests or other care and services underlying the claims filed by Petitioner with Medicare were reasonable and necessary and met other Medicare requirements. 

Petitioner is bound as a matter of law by the determinations under the claims review process provided by 42 C.F.R. pt. 405, subpt. I, and the issue is whether those claims permit a CMS determination that Petitioner engaged in a pattern or practice of submitting

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claims that failed to meet Medicare requirements and are a basis for revocation under 42 C.F.R. § 424.535(a)(8)(ii). 

Petitioner’s Medicare Enrollment

The enrollment record summary for Petitioner shows Petitioner was enrolled in Medicare as a home health agency providing hospice care.  CMS Ex. 1 at 1.  Petitioner was accredited as a hospice by the ACHC for the period June 26, 2023 through June 26, 2026.  P. Ex. 1; P. Ex. 8 at 1 ¶ 2; P. Br. at 11.  Petitioner began submitting claims to the MAC on October 10, 2023.  P. Ex. 8 at 2 ¶ 4; P. Br. at 2.  These facts are not disputed. 

Two Rounds of PPEO Reviews

According to Michele Gill, Petitioner’s Acting Administrator, Petitioner was subject to a PPEO by the MAC beginning about October 30, 2023.  P. Ex. 8 at 2 ¶ 5; P.Br. at 2.  CMS submitted the declaration of Laura Pandl, a manager with the MAC, who testified that the PPEO began about August 30, 2023.  CMS Ex. 3 at 2 ¶ 4.  The discrepancy does not affect the outcome in this case.   The effective date of the PPEO is established under the regulations as a matter of law.8 

Ms. Pandl explains that it was October 16, 2023, that the MAC received the claims it reviewed during Round 1 of the PPEO.  The claims were for dates of service from June 26 to August 31, 2023.  Ms. Pandl describes Round 1 of the PPEO as claims submitted by Petitioner to the MAC between August 30, 2023 and October 16, 2023.  CMS Ex. 3 at 2 ¶¶ 5-6.  According to Ms. Pandl, Round 2 of the PPEO began on January 27, 2024 and ended April 1, 2024, after receipt of 10 unique claims submitted by Petitioner to the MAC that were for dates of service after January 27, 2024, and were not related to beneficiaries involved in Round 1 of the PPEO.  Dates of service for the claims were February 1 to 28, 2024.  CMS Ex. 3 at 3 ¶¶ 8-9.  According to Ms. Pandl, generally hospice claims received by the MAC are automatically paid without review prior to the payment.  CMS or the MAC have the option to conduct post-payment audits and declare an overpayment for any claim improperly paid.  However, during a PPEO the MAC conducts a prepayment review to determine whether claims conform to Medicare requirements and if not, they are not paid.  In Petitioner’s case, as of August 30, 2023,

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any claim submitted by Petitioner was not automatically paid but was sent for medical review and that process continued until the MAC received 10 unique beneficiary claims.  According to Ms. Pandl, the MAC only conducted prepayment review of one claim for each of 10 Medicare beneficiaries, even if, Petitioner submitted more than one claim for a beneficiary.  Once the 10 unique claims were identified, Petitioner was placed back in automatic payment status.  CMS Ex. 3 at 1-2 ¶¶ 3-5.  Ms. Pandl testified that during Round 1 and the period of prepayment review from August 30, 2023 to October 16, 2023, the MAC only received 10 claims from Petitioner, and all were subject to prepayment review.  CMS Ex. 3 at 2 ¶ 5.  Ms. Pandl testified that Round 2 of the PPEO began January 27, 2024, when the MAC began prepayment review of Petitioner’s claims rather than automatic payment.  According to Ms. Pandl, the MAC excluded claims with dates of service within 35 days after December 22, 2023, and claims related to any beneficiaries for whom claims were reviewed in the first round of the PPEO.  All other claims received after January 27, 2024, were sent for prepayment medical review until 10 unique beneficiary claims were received and subject to prepayment review.  Petitioner was placed back in automatic payment status on April 1, 2024, after 10 unique claims were collected for prepayment review.  According to Ms. Pandl, Petitioner submitted 51 claims between January 27, 2024 and April 1, 2024, but only 10 unique claims were selected for prepayment review.  CMS Ex. 3 at 3 ¶ 8-10.  Ms. Pandl testimony has not been denied or otherwise disputed. 

There is no dispute that the MAC notified Petitioner of the results of Round 1 of the PPEO by letter dated December 22, 2023.  The MAC notified Petitioner that 10 claims were requested, 10 claims were reviewed, and eight claims were denied.  The MAC calculated a claims error rate of 80 percent based on the denial of eight of the 10 claims reviewed.  CMS Ex. 2 at 1.  The MAC identified two defects as the reasons for the denials: (1) the initial hospice certification was not signed by physicians within two days of admission to hospice, or if not possible, there was a verbal order of admission that was signed by a physician before Medicare was billed as required by MBPM § 20.1; and (2) information provided by Petitioner did not support a terminal prognosis of six month or less as required by MBPM § 10.  The MAC advised Petitioner it did not meet the “goal error rate,” but provided no definition of that term.  The MAC advised Petitioner that Round 2 of the PPEO would begin on January 27, 2024.  The MAC advised Petitioner that its Medicare billing privileges could be revoked under 42 C.F.R. § 424.535(a)(8)(ii) for submitting claims that do not meet Medicare requirements.  The MAC advised Petitioner that the purpose of the PPEO is to identify areas of confusion and address that confusion through education which Petitioner could request through the MAC.  CMS Ex. 2 at 2.  The MAC advised Petitioner that it could appeal the individual claim decisions and referred Petitioner to the remittance advice to calculate deadlines for filing appeal for each claim.  CMS Ex. 2 at 3.  No remittance advice is in evidence before me.  Attached to the MAC letter was a list of the 10 claims reviewed with the reason codes for the denial listed.  Five of the denials were for no physician signature on the hospice certification as

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indicated by the code 55H1B.  Three of the denials with code 55H1L, were because the MAC determined information provided by Petitioner did not support the terminal prognosis of six months or less.9  CMS Ex. 2 at 4. 

On May 31, 2024, the MAC notified Petitioner of the Round 2 PPEO results by letter.  The MAC informed Petitioner that 10 claims were requested, 10 were reviewed, and five claims were denied.  The MAC calculated a claims error rate of 50 percent.  CMS Ex. 5 at 1.  All five claims were listed as denied because the MAC determined that the documentation submitted by Petitioner did not support a terminal prognosis of six months or less as required by the MBPM § 10.  The MAC again advised Petitioner about possible revocation pursuant to 42 C.F.R. § 424.535(a)(8)(ii), the purpose of the PPEO process, requesting education, and appealing the individual claim denials.  CMS Ex. 5 at 2.  Attached to the MAC letter was a list of the 10 claims considered.  The five denied claims list the code 55H1L indicating that the evidence did not support the terminal prognosis of six months or less.  CMS Ex. 5 at 4 

The MAC hearing officer recognized in the reconsidered determination that of the eight denied claims from Round 1, one of the denials was overturned through the claim appeals process and three of the denied claims were upheld on review.  CMS Ex. 4 at 3 n.2; P. Br. at 2 n.1; CMS Ex 7 at 6 (Petitioner states it only appealed one of eight claims denied on

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Round 1 of the PPEO choosing to focus on its billing and claims submissions but believes it could have prevailed on more than the one denied claim).  Therefore, seven of 10 claims from Round 1 of the PPEO stand denied.  Petitioner’s assertion it appealed only one denied claim from Round 1 (CMS Ex. 7 at 6) is inconsistent with the CMS hearing officer’s statement that one appeal was granted but three were upheld (CMS Ex. 4 at 3 n.2).  The inconsistency does not involve a material fact and there is no need for me to attempt to resolve it.  I accept as true for purposes of summary judgment, as I am required to do, Petitioner’s assertion it appealed only one claim denial from Round 1.  Whether one or four claim appeals were filed, there is no dispute that Petitioner was aware of the claim appeals process and used it, at least as to one claim on which it prevailed.  In its request for a reconsidered determination, Petitioner indicated that it might file claims appeals for the five denied claims from Round 2 of the PPEO.  CMS Ex. 7 at 15.  But no evidence has been presented to me that Petitioner filed any claims appeals for the five Round 2 denied claims.  Because those claims were denied no later than May 31, 2024, when the MAC advised Petitioner of the Round 2 results (CMS Ex. 5 at 1), I infer that the time for filing those appeals has long past.  42 C.F.R. § 405.942(b) (unless extended for good cause, 120 calendar days to request redetermination of initial claim denial determination); 42 C.F.R. § 405.928(b) (initial determination is final and binding on all parties unless a redetermination is issued or the initial determination is reopened and revised).  The MAC issued the notice that it revoked Petitioner’s Medicare enrollment and billing privileges and terminated its provider agreement on June 25, 2024 (CMS Ex. 6 at 1) – less than one month after the MAC’s May 31, 2024 notice to Petitioner of the results of Round 2 of the PPEO.  But the reconsidered determination was not issued until May 14, 2025 (CMS Ex. 4), nearly a year after Petitioner was informed of the results of Round 2.  Therefore, despite the fact the initial determination to revoke was issued less than 30 days after notice of the results of Round 2, more than sufficient time elapsed between the initial determination and the issuance of the reconsidered determination for any claim appeals to be filed by Petitioner and resolved by the MAC and CMS.  I note that Petitioner only admits to having filed one claim appeal and that was from a denied appeal from Round 1.  CMS Ex. 7 at 6; P. Br. at 2 n.1. 

Acting Administrator Gill testified and I accept as true for purposes of summary judgment that: 

Claims for the Medicare beneficiaries other than those denied claims for those beneficiaries in Rounds 1 and 2 were paid by the MAC.  P. Ex. 8 at 2-3 ¶ 12; P. Exs. 6, 7; P. Br. at 3. 

The untimely signatures of physicians that resulted in some of the denials in Round 1 was due to a technical issue with Petitioner’s electronic medical record that was resolved by Petitioner.  P. Ex. 8 at 2 ¶ 6; P. Br. at 2-9. 

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Petitioner requested education from the MAC following Round 1 of the PPEO.  Petitioner sought to understand what deficiencies the MAC identified regarding documentation of the terminal diagnosis for the Medicare beneficiaries for whom claims were denied.  The training was arranged by the MAC and presented remotely on January 17, 2024, by a registered nurse.  Acting Administrator Gill testified that the training did not identify the specific deficiencies in the documentation supporting the certifications of terminal prognosis that caused the claim denials in Round 1.  The nurse said she had not reviewed the records of the beneficiaries and could not give any specific information on why the claims were deficient.  The nurse opined that it would be sufficient if Petitioner submitted prior medical records for beneficiaries from hospitals and other facilities in Round 2 of the PPEO.  P. Ex. 8 at 2 ¶¶ 7-8; P. Br. at 2. 

Petitioner received no targeted written education from the MAC on December 23, 2023.  Petitioner did receive a general hospice resource on February 20, 2024, but no other written guidance.  P. Ex. 8 at 2 ¶ 9; P. Br. at 3. 

In Round 2 of the PPEO Petitioner submitted all documents requested by the MAC including the beneficiaries’ prior hospital and/or other facility records.  P. Ex. 8 at 2 ¶ 10.  The MAC provided no specific findings of why documentation was deficient for the claims denied in Round 2.  P. Ex. 8 at 2 ¶ 11. 

Acting Administrator Gil’s testimony is credible and supported by P. Exs. 3 through 7. 

Petitioner acknowledges that the ALJs role in this proceeding “is not to determine the medical necessity of the claims” involved.  Petitioner does not argue that I should review individual claim denials from Round 1 and 2 of the PPEO.  P. Br. at 8, 10.  And I have received no evidence that would permit my review of any of the claims denied during the two rounds of the PPEO. 

I accept as true for purposes of summary judgment that Petitioner had no prior history of adverse actions.  P. Br. at 8. 

I accept as true for purposes of summary judgment that Petitioner submitted 243 claims to Medicare from about June 26, 2023 to June 29, 2024; only 12 of the claims were denied (the claims from Rounds 1 and 2 of the PPEO), which is a denial rate of 4.9 percent.  P. Br. at 6-7.  CMS presented no evidence that more claims were denied during the approximately one year of Petitioner’s enrollment in Medicare than those denied during Rounds 1 and 2 of the PPEO. 

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MAC Initial Determination

The June 24, 2023 MAC notice of the initial determination to revoke Petitioner’s Medicare enrollment and billing privileges and terminate Petitioner’s provider agreement cited 42 C.F.R. § 424.535(a)(8)(ii) as the basis for the action.  The MAC alleged that the claims denials from Rounds 1 and 2 of the PPEO were the evidence that Petitioner had a pattern or practice of submitting claims that did not meet Medicare requirements.  The effective date of the revocation was July 25, 2024, 30 days after the date on the initial determination.  The MAC imposed a 10-year bar to reenrollment beginning 30 days after the postmark on the initial determination.  The MAC also determined to add Petitioner’s name to the CMS preclusion list effective the date of the reconsidered determination or 65 days from the date of the initial determination if reconsideration was not requested.  Petitioner was advised of the right to request a reconsidered determination.  CMS Ex. 6. 

Petitioner timely requested a reconsidered determination.  CMS Ex. 4 at 1; CMS Ex. 7. 

CMS Reconsidered Determination

On May 14, 2025, a CMS hearing officer issued a reconsidered determination.  The hearing officer upheld revocation of Petitioner’s Medicare enrollment and billing privileges pursuant to 42 C.F.R. § 424.535(a)(8)(ii), the 10-year reenrollment bar, and placing Petitioner’s name on the CMS preclusion list.  CMS Ex. 4. 

The CMS hearing officer found that Petitioner was subject to two rounds of the PPEO.  The CMS hearing officer found that during Round 1, eight of 10 claims reviewed were denied either because information provided did not support a terminal prognosis of six months or less or the initial certification was not signed timely by a physician.  One of the denials was subsequently reversed or overturned during the claim appeals process.  During Round 2 of the PPEO, five of 10 claims reviewed were denied because the hearing officer found that the evidence did not support a terminal prognosis of six months or less even though Petitioner had received training.  CMS Ex. 4 at 3, 6.  The hearing officer stated that the revocation was based on Petitioner’s submission of claims that failed to meet Medicare requirements and, after being informed that the claims did not meet Medicare requirements, Petitioner submitted more noncompliant claims.  CMS Ex. 4 at 4.  The hearing officer declined to review whether the 12 denied claims were appropriately denied, noting claims review is a separate process in a separate forum.  CMS Ex. 4 at 4. 

The hearing officer considered that Petitioner’s period of filing noncompliant claims was brief at roughly eight months.  The hearing officer considered the four factors required by 42 C.F.R. § 424.535(a)(8)(ii). 

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42 C.F.R. § 424.535(a)(8)(ii)(A).  The percentage of submitted claims that were denied during the period under consideration. 

The hearing officer identified two periods under consideration -- Round 1 with 70 percent of the claims denied, and Round 2 with 50 percent of the claims denied.  The hearing officer concluded that 70 and 50 percent were high rates of noncompliance.  The hearing officer rejected Petitioner’s arguments to use a larger base number of claims and to consider that percentage of claims decreased between Round 1 and 2, noting that manipulating the numbers does not relieve Petitioner of its responsibility to submit claims the meet Medicare requirements.  CMS Ex. 4 at 6-7. 

42 C.F.R. § 424.535(a)(8)(ii)(B).  Whether the provider or supplier has any history of final adverse actions and the nature of any such actions. 

Regarding factor B, the hearing officer was aware of no other adverse actions against Petitioner.  CMS Ex. 4 at 7. 

42 C.F.R. § 424.535(a)(8)(ii)(C).  The type of billing non-compliance and the specific facts surrounding the noncompliance. 

The hearing officer considered that claims were denied for two reasons.  In Round 1 claims were denied because the certification of terminal illness was not signed timely by a physician and the documentation did not support a terminal prognosis of six months or less.  In Round 2 claims were denied only because the documentation did not support a terminal prognosis of six months or less.  The hearing officer found the MAC denied the 12 claims because the reasonableness and medical necessity for hospice was not supported.  The hearing officer commented that the basis for denial of the claims shows Petitioner had a habit of submitting claims that were nonconforming to Medicare requirements for the same reasons.  The hearing officer also considered that three claim denials from Round 1 were upheld on review.  The hearing officer rejected or gave no credit to Petitioner’s arguments that claims from the Round 1 were denied on technical grounds related to physician signatures; no serious abuses were reflected by Petitioner’s errors; Petitioner’s claims improved between the two rounds of the PPEO; and failure to provide sufficient documentation was an honest error and inadvertent oversight not a serious abuse.  The hearing officer commented that submitting insufficient documentation is not merely a technical error.  The hearing officer noted that the requirements for certification of terminal illness are published in 42 C.F.R. § 418.22(b)(2), which states what must be filed in support of the certification.  The hearing officer found that the failure to submit adequate documentation for 50 percent of claims in Round 2 after having received training, rises to the level of a systemic practice/pattern.  CMS Ex. 4 at 8-9. 

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42 C.F.R. § 424.535(a)(8)(ii)(D).  Any other information regarding the provider’s or supplier’s specific circumstance that CMS deems relevant. 

The hearing officer considered that Petitioner received education on December 22, 2023, and even after education Petitioner filed Medicare claims that did not comply with Medicare requirements.  The hearing officer concluded that Petitioner continued a pattern or practice of submitting noncompliant claims despite education.  CMS Ex. 4 at 9.  The hearing officer commented that the denial of 12 of 20 claims, i.e., 60 percent, in the two rounds of the PPEO was egregious.  CMS Ex. 4 at 10. 

The hearing officer upheld the 10-year bar to reenrollment.  The hearing officer concluded that the repeated submissions of noncompliant claims by Petitioner was very severe and stated that CMS policy is that a provider or supplier is responsible for always submitting valid claims.  CMS Ex. 4 at 10. 

The hearing officer conducted a preclusion list analysis that considered the seriousness of the conduct underlying the revocation, the degree to which Petitioner’s conduct could affect the Medicare program, and other evidence CMS deemed relevant.  CMS Ex. 4 at 10.  The hearing officer found that denial rates of 50 and 70 percent were serious, particularly considering that Petitioner continued to submit noncompliant claims after education.  The hearing officer considered that Petitioner’s conduct raised a question as to Petitioner’s ability and willingness to be a trustworthy Medicare partner and noted that Medicare relies on the integrity of its partners.  The hearing officer rejected Petitioner’s argument that its overall claims denial rate of approximately five percent is within industry standard, concluding Petitioner was responsible to always submit valid claims and failure to do so put the Medicare program at risk, i.e., Petitioner’s conduct was detrimental to the best interests of Medicare.  CMS Ex. 4 at 11-12. 

I have received no evidence from which I can infer that there is an industry standard for an acceptable number of claims that may be submitted to Medicare that are noncompliant with Medicare requirements.  I infer from the CMS hearing officer’s comments in the reconsidered determination that CMS has not set an acceptable number of noncompliant claims that may be filed.  I also have no evidence from which I can infer favorably for Petitioner that its alleged claims denial rate if 5.3 percent based on denial of 13 of 243 claims (CMS Ex. 7 at 10, 20, P. Br. at 7) or 4.9 percent based on denial of 12 of 243 claims was within an industry standard recognized by health insurance companies. 

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b.  Analysis

Revocation Under 42 C.F.R. § 424.535(a)(8)(ii)

CMS may revoke the Medicare enrollment and billing privileges of a provider or supplier for any of the reasons authorized by 42 C.F.R. § 424.535(a).  Revocation for abuse of billing privileges is authorized by 42 C.F.R. § 424.535(a)(8).  In this case, CMS revoked pursuant to the authority of 42 C.F.R. § 424.535(a)(8)(ii), which provides: 

(8) Abuse of billing privileges.  Abuse of billing privileges includes either of the following: 

* * * *

(ii) CMS determines that the provider or supplier has a pattern or practice of submitting claims that fail to meet Medicare requirements.  In making this determination, CMS considers, as appropriate or applicable, the following: 

(A) The percentage of submitted claims that were denied during the period under consideration. 

(B) Whether the provider or supplier has any history of final adverse actions and the nature of any such actions. 

(C) The type of billing non-compliance and the specific facts surrounding said non-compliance (to the extent this can be determined). 

(D) Any other information regarding the provider or supplier’s specific circumstances that CMS deems relevant to its determination. 

42 C.F.R. § 424.535(a)(8)(ii). 

CMS was granted authority to revoke for abuse of billing privileges by the addition of 42 C.F.R. § 424.535(a)(8)(ii) in 2014.  When the regulation was adopted, CMS was clear that CMS and not its contractors would make all determinations under 42 C.F.R. § 424.535(a)(8)(ii).  CMS was also clear that the authority would only be used when the filing of claims that did not meet Medicare requirements was not sporadic and when there was a pattern of filing noncompliant claims.  79 Fed. Reg. 72,500, 72,515 (Dec. 5, 2014). 

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CMS stated: 

We believe it is the responsibility of the provider submitting the claim to ensure that all requirements—including, as necessary, proper and compliant supporting documentation—have been met prior to the claim’s submission.  Repeated denials due to improper documentation are an indication to a provider or supplier that its billing behavior must change in order to become compliant with Medicare requirements—including documentation requirements. 

Id. at 72,516. 

CMS determined not to include an intent or knowledge element due to the burden of attempting to determine intent, and if a provider or supplier submits a claim with the specific or actual knowledge the claim does not meet Medicare requirements or with reckless disregard of whether the claim meets Medicare requirements, that situation could be handled under various other authorities such as the False Claims Act.  Id.  CMS declined to define “pattern or practice” to maintain flexibility to address various fact scenarios.  Id. at 72,519.  CMS identified factors to be considered in determining whether there was a pattern or practice.  CMS determined not to give certain factors greater weight than others because the importance of each factor could vary based on the situation.  CMS also determined not to establish a minimum percentage of claims denials to ensure flexibility in addressing different scenarios.  79 Fed. Reg. 72,514, 72,517, 72,519.  The number of factors for CMS to consider was reduced from six to the four quoted above in 2021, with an effective date of January 1, 2022.  86 Fed. Reg. 64,996, 65,683 (Nov. 19, 2021).  CMS explained that its intent was to make clear it could consider shorter periods of noncompliant billing during the period under consideration and that it was not limited to longer periods of a provider’s or supplier’s billing or the entire period of enrollment, as even a short period of noncompliant billing can threaten the Medicare program and Medicare trust funds.  CMS commented that it removed consideration of the length of the provider’s or supplier’s enrollment which should have no bearing on whether 42 C.F.R. § 424.535(a)(8)(ii) applies because it is the behavior itself that is in issue and not the period of enrollment.  CMS also stated that the reason for claim denials is not particularly germane in applying 42 C.F.R. § 424.535(a)(8)(ii) because, even if there was no evidence of nefarious intent on the part of a provider or supplier, the failure to comply with Medicare billing requirements presents a risk to the Medicare program.  Intent is irrelevant because the purpose is deterring noncompliant billing which exists regardless of the reason it occurred.  Id. at 65,334-65,336.  In 2023, CMS considered providing a definition of pattern or practice under 42 C.F.R. § 424.535(a)(8)(ii) to be at least three submitted noncompliant claims.  But after

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considering comments, CMS decided not to finalize the proposed definition but held open the possibility of adding a definition through future rulemaking.  88 Fed. Reg. 78,818, 79,275-79,276 (Nov. 16, 2023). 

I conclude that there is no genuine dispute as to a material fact and that the undisputed facts establish a prima facie case of abuse of billing privileges under 42 C.F.R. § 424.535(a)(8)(ii).  For purposes of 42 C.F.R. § 424.535(a)(8)(ii), an abuse of billing privileged occurs when CMS determines, after consideration of whichever of the four specified factors CMS deems appropriate, that Petitioner engaged in a pattern or practice of submitting claims that fail to meet Medicare requirements.  The filing of noncompliant claims was not sporadic in this case.  The intent of Petitioner is irrelevant.  The period considered is the period under consideration and not a longer period or the entire period of enrollment.  The number of claims involved is also not determinative. 

The only determination of CMS subject to my review is the reconsidered determination.  Neb Grp. of Ariz. LLC, DAB No. 2573 at 7.  The reconsidered determination in this case was issued by a CMS hearing officer.  CMS Ex. 4.  The fact that the reconsidered determination was issued by a CMS hearing officer is consistent with the CMS statements in promulgating 42 C.F.R. § 424.535(a)(8)(ii) that only CMS would make the decision to revoke under that provision. 

The CMS hearing officer carefully and clearly articulated her evaluation of each of the four factors established by 42 C.F.R. § 424.535(a)(8)(ii) that guided her conclusion that Petitioner engaged in a pattern or practice of submitting claims that failed to meet Medicare requirements and that the submission of such claims was not merely sporadic.  The hearing officer’s findings and conclusions are discussed in my Findings of Fact which are summarized here. 

Regarding the factor under 42 C.F.R. § 424.535(a)(8)(ii)(A), the hearing officer identified two periods under consideration -- Round 1 with 70 percent of the claims denied, and Round 2 with 50 percent of the claims denied.  The hearing officer concluded that 70 and 50 percent were high rates of noncompliance.  The hearing officer rejected Petitioner’s arguments to use a larger base number of claims and to consider that percentage of claims decreased between Round 1 and 2, noting that manipulating the numbers does not relieve Petitioner of its responsibility to submit claims the meet Medicare requirements.  CMS Ex. 4 at 6-7. 

Regarding the factor under 42 C.F.R. § 424.535(a)(8)(ii)(B), the hearing officer found no evidence of other adverse actions against Petitioner.  CMS Ex. 4 at 7. 

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Regarding the factor under 42 C.F.R. § 424.535(a)(8)(ii)(C), the hearing officer considered that claims were denied for two reasons.  In Round 1 claims were denied because the certification was not signed timely by a physician and the documentation did not support a terminal prognosis of six months or less.  In Round 2 claims were denied only because the documentation did not support a terminal prognosis of six months or less.  The hearing officer found the MAC denied the 12 claims because the reasonableness and medical necessity for hospice was not supported.  The hearing officer commented that the basis for denial of the claims shows Petitioner had a pattern or practice of submitting claims that were nonconforming to Medicare requirements for the same reasons.  The hearing officer also considered that three claim denials from Round 1 were upheld on review.  The hearing officer rejected or gave little weight to Petitioner’s arguments that claims from the Round 1 were denied on technical grounds related to physician signatures; no serious abuses were reflected by Petitioner’s errors, Petitioner’s claims improved between the two rounds of the PPEO, and failure to provide sufficient documentation was an honest error and inadvertent oversight not a serious abuse.  The hearing officer commented that submitting insufficient documentation is not merely a technical error.  The hearing officer noted that the requirements for certification of terminal illness are published in 42 C.F.R. § 418.22(b)(2), which states what must be filed in support of the certification.  The hearing officer found that the failure to submit adequate documentation for 50 percent of claims in Round 2 after having received training, rises to the level of a systemic practice or pattern.  CMS Ex. 4 at 8-9. 

CMS has discretion under 42 C.F.R. § 424.535(a)(8)(ii)(D) to consider other information it deems relevant.  The hearing officer considered that Petitioner received education on December 22, 2023, and even after education Petitioner filed Medicare claims that did not comply with Medicare requirements.  The hearing officer concluded that Petitioner continued a pattern or practice of submitting noncompliant claims despite education.  CMS Ex. 4 at 9.  The hearing officer commented that the denial of 12 of 20 claims, i.e., 60 percent, in the two rounds of the PPEO was egregious.  CMS Ex. 4 at 10.  The 12 claims denials from Rounds 1 and 2 of the PPEO are not subject to review in this forum.  I infer from the passage of time and the absence of evidence of any pending claims appeals that the MAC determinations on all 12 denied claims are final and binding upon Petitioner.  CMS indicated in rule-making that the exact reason for the claims denials is not relevant to the revocation determination under 42 C.F.R. § 424.535(a)(8)(ii) anyway. 

The hearing officer concluded that there was a basis for revocation of Petitioner’s Medicare enrollment and billing privileges under 42 C.F.R. § 424.535(a)(8)(ii); upheld

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the 10-year reenrollment bar; and upheld placing Petitioner’s name on the CMS preclusion list. 

In Devine Solutions, DAB No. 3159, the Board considered and upheld revocation of a supplier’s Medicare enrollment and billing privileges pursuant to 42 C.F.R. § 424.535(a)(8)(ii).  The Board commented upon the scope of review as follows: 

We repeat that by governing regulation, CMS has discretionary authority to revoke or not revoke in a particular case, and the role of the ALJ and the Board “is limited to determining whether CMS’s action is legally authorized and does not extend to second-guessing whether CMS properly exercised its discretion.”  Acute Care Homenursing Servs., Inc., DAB No. 2837, at 9 (2017).  “ALJs and this Board may review only whether CMS had a valid legal basis to revoke billing privileges, and, if it did, may not address whether it properly exercised its discretion to do so.”  Wendell Foo, M.D., DAB No. 2904, at 25 (2018), aff’d, 420 F. Supp. 3d 1100 (D. Haw. 2019); see also George M. Young, M.D., DAB No. 2750, at 11 (2016) (“To the extent CMS exercised its discretion in ultimately deciding to go forward with revocation in Petitioner’s case, it is not for the ALJ and the Board to look behind that exercise of discretion to ask whether [the ALJ], or the Board, standing in CMS’s shoes, would reach the same decision to revoke.”).  In short, we determine whether CMS could revoke, not whether it should revoke, and in this case we conclude that CMS lawfully could revoke and had ample basis to do so. 

Devine Sols., DAB No. 3159 at 22. 

I conclude based on the evidence in this case that CMS could revoke.  The denial rates of 70 percent from Round 1 and 50 percent from Round 2 were high particularly given that they occurred during a brief period of enhanced oversight; the denials were based on two failures to meet Medicare requirements that occurred multiple times in Round 1; and one of the failures to meet Medicare requirements continued into Round 2 even though Petitioner had been informed of the noncompliance and had received some general education as to what Medicare requirements are for hospice claims.  Petitioner cannot deny that the requirements for the certification of terminal illness, including the requirement for physician’s signature, are specified in detail in 42 C.F.R. § 418.22(b), with which Petitioner is required to comply because it is law.  The requirements are also detailed in MBPM § 20.1, with which Petitioner agreed to comply when enrolling in

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Medicare.  The Board has consistently found that people and entities that enroll in Medicare are presumed to know Medicare requirements.  John Hartman, D.O., DAB 2564 at 3 (2014) (citing Heckler v. Cmty. Health Servs. of Crawford Cnty., Inc., 467 U.S. 51, 63 (1984) (“the general rule [is] those who deal with the Government are expected to know the law”)).  Moreover, providers and suppliers must, pursuant to 42 C.F.R. §§ 424.510(d)(3) and 424.516(a)(2), attest or certify that they meet all Medicare requirements, which is further evidence supporting the presumption of their knowledge of the requirements. 

The revocation is based on only 12 noncompliant claims.  Round 1 reviewed the first claims Petitioner filed with Medicare as a hospice.  Seven of Petitioner’s 10 earliest filed claims were denied because the hospice certifications were not timely signed by a physician or the evidence submitted by Petitioner did not support the prognosis that the beneficiary was terminally ill with life expectancy of six months or less given the normal course of beneficiary’s illness.  42 C.F.R. § 418.3 (definition of terminally ill); CMS Ex. 2 at 4; CMS Ex. 6 at 5; P. Ex. 8 at 1-2 ¶¶ 3-5; P. Br. at 2.  The requirements for a certification of terminal illness and the contents of a certification are set out in detail in 42 C.F.R. § 418.22.  Whether the 12 claims denied satisfied the requirements of 42 C.F.R. § 418.22, is not an issue before me but had to be challenged by Petitioner through the claim appeals process.  The evidence shows that Petitioner requested review of the denial of at least one claim and prevailed reducing the number of claims denied in Rounds 1 and 2 of the PPE0 from 13 to 12.  There is no dispute before me that none of the 12 remaining claims denials from Rounds 1 or 2 are subject to or pending in the claims appeal process of 42 C.F.R. pt. 405 subpt. I.  Therefore, MAC’s conclusions that the 12 claims denied in Rounds 1 and 2 of the PPEO did not comply with 42 C.F.R. § 418.22, is final and binding on Petitioner and CMS. 

Petitioner’s Acting Administrator Gill states in her declaration that Petitioner underwent rigorous training and a survey to become accredited as a hospice by ACHC.  She further asserts that Petitioner took its obligations to Medicare seriously and worked with both CMS and ACHC to ensure compliance before submitting claims to Medicare.  P. Ex. 8 at 1 ¶ 3; P. Br. at 1-2.  I accept Acting Administrator Gills assertions as true for purposes of summary judgment.  But her assertions do not negate the undisputed facts that Petitioner submitted 12 of 20 claims that were found noncompliant with Medicare requirements and those findings of noncompliance are final and binding on Petitioner because there was no claim appeal or a claim appeal was unsuccessful. 

I conclude that the undisputed fact that 12 of 20 claims reviewed during Round 1 and 2 of the PPEO were denied for one of two reasons shows it is more likely than not that Petitioner engaged in a pattern or practice of submitting claims not meeting Medicare requirements.  The noncompliant claims were not submitted to the MAC sporadically given the short periods of Rounds 1 and 2, the fact only 10 claims were selected for

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prepayment review in each round, and all 12 claims were denied either because the certification of terminal illness was not signed by a physician and a physician’s signature is clearly required by 42 C.F.R. § 418.22(b)(5) or the certificate of terminal illness was not supported by sufficient documentation of the terminal prognosis.  Even if, I considered a larger base of claims as Petitioner advocates, the facts are that the 12 claims were submitted in a brief period of less than a year and all 12 claims were noncompliant.  Even if I draw a favorable inference for Petitioner that there is an industry standard that health insurers accept a claims error rate of greater than 5.3 percent as Petitioner asserts (CMS Ex. 7 at 20), Petitioner does not assert or point to any evidence that CMS has recognized any acceptable number of noncompliant claims or agreed to accept any noncompliant claims.  I conclude that CMS had a basis to revoke.  The Board has determined it is not for me or the Board to decide whether CMS should revoke if it had a basis to revoke.  Devine Sols., DAB No. 3159 at 22.  Nevertheless, based on the facts of this case I conclude based on my de novo review there is a basis for revocation and revocation pursuant to 42 C.F.R. § 424.535(a)(8)(ii) is fully supported by the evidence. 

Petitioner’s Arguments

Petitioner argues that there is no basis for revocation under 42 C.F.R. § 424.535(a)(8)(ii) and advances several arguments in support of that position. 

Petitioner displays some confusion about the scope of ALJ review that requires clarification first.  Petitioner argues that an ALJ has authority to review whether revocation pursuant to 42 C.F.R. § 424.535(a)(8)(ii) is appropriate because the regulation is ambiguous.10  P. Br. at 5-6.  Petitioner argues that CMS should not have complete discretion to revoke under 42 C.F.R. § 424.535(a)(8)(ii) and argues that I should review the four factors under the regulation and decide if Petitioner’s Medicare enrollment and billing privileges should be revoked.  I agree with Petitioner. 

CMS does not have complete and unreviewable discretion under 42 C.F.R. § 424.535(a)(8)(ii).  When CMS revokes, Petitioner is granted the right to request ALJ

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review of the CMS reconsidered determination.  Act § 1866(j)(8) (42 U.S.C. § 1395cc(j)(8)); 42 C.F.R. §§ 424.545, 498.3(b)(17), (20), 498.5; Neb Grp. of Ariz., DAB No. 2573 at 7.  Review of the CMS decision necessarily involves de novo review of the evidence and consideration of the four factors established by the regulation to determine if there is a basis for revocation.  Congress provided in section 1866(h)(1) and (j)(8) of the Act that a provider or supplier dissatisfied with a decision of the Secretary to deny or not renew Medicare enrollment, is entitled to a hearing to the same extent as provide by section 205(b) of the Act and to judicial review of the Secretary’s final decision after the hearing as provide in section 205(g) of the Act.  Section 205(b) of the Act requires reasonable notice and a hearing and a decision on the evidence adduced at the hearing which makes de novo findings of fact and affirms, modifies, or reverses the Secretary’s decision.  CMS may not be limited in this case as to the period under consideration, the minimum number of claims that were noncompliant with Medicare requirements necessary for revocation, the facts related to the noncompliant claims, or other factors CMS may consider and weigh under the four factors of 42 C.F.R. § 424.535(a)(8)(ii).  But the four factors are nevertheless subject to review by the ALJ.  If I conclude after de novo review that CMS had a basis to revoke my review ends according to the Board.  I do not determine whether CMS should not have revoked if I conclude that it had a basis to revoke. 

Petitioner recognizes that 42 C.F.R. § 424.535(a)(8)(ii) grants CMS discretion to revoke or not.  Petitioner correctly asserts that to determine if there is a basis for revocation, CMS considers the four factors in 42 C.F.R. § 424.535(a)(8)(ii).  P. Br. at 6. 

The gist of Petitioner’s arguments are that the CMS hearing officer did not correctly analyze the four factors and the remedy is overturning the revocation of Petitioner’s Medicare enrollment and billing privileges.  P. Br. at 6-11.  Petitioner presents argument as to each of the four factors for my consideration.  Petitioner wants me to conclude that the CMS decision should be overturned based on my de novo review of the four factors under 42 C.F.R. § 424.535(a)(8)(ii) and conclude that CMS had no basis to revoke Petitioner’s Medicare enrollment and billing privileges.  P. Br. at 6-11.  I have reviewed and commented upon the hearing officers findings and conclusions twice in this decision for Petitioner’s benefit.  But my mandate is to conduct a de novo review of the evidence and determine whether there is a basis for revocation, not whether the hearing officer competently and correctly performed her job.  Based on my de novo review of the evidence already discussed, I conclude that there is a basis for revocation of Petitioner’s Medicare enrollment and billing privileges pursuant to 42 C.F.R. § 424.535(a)(8)(ii). 

Petitioner argues that the notices of the results of Rounds 1 and 2 of the PPEO (CMS Exs. 2, 5) did not explain why the documentation submitted by Petitioner was insufficient to support the terminal prognosis of six months or less for beneficiaries and the education provided by the MAC was general and not specific as to why claims were denied.  P. Br.

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at 2-3, 9.  I accept both assertions as true for purposes of summary judgment.  But if Petitioner wanted to gain more knowledge about the basis for individual claim denials and to contest the basis for denial of those claims, Petitioner had to proceed with a claims appeal under 42 C.F.R. pt. 405, subpt. I.  This is not the forum for challenging individual claims denials.  Furthermore, beyond the facts cited by the MAC for claims denials, i.e., the documents were insufficient to support the terminal prognosis in six months or less or no physician signed the certification of terminal illness, the detailed facts for each claim are not relevant in this proceeding.  To the extent Petitioner intends to argue it was deprived of due process by lack of detail in the notices of the results of Rounds 1 and 2 of the PPEO (CMS Ex. 2, 5), the initial determination (CMS Ex. 6), or the reconsidered determination (CMS Ex. 7), I conclude that the notices are sufficient under the regulations applicable, specifically those in 42 C.F.R. pts. 424 and 498, to give Petitioner notice of the action against it and what it needed to defend as well as the procedures available to it.  The evidence shows that Petitioner did file one claim denial appeal that was successful (CMS Ex. 4 at 3 n.2; P. Br. at 7 n.3) showing that Petitioner had enough information to file that appeal and obtain relief. 

Petitioner argues that the CMS’ interpretation of the phrase “period under consideration” in 42 C.F.R. § 424.535(a)(8)(ii)(A) is incorrect.  The CMS hearing officer determined that there were two periods under consideration – the period of the 10 claims from Round 1 and the period of the 10 claims from Round 2 – and the hearing officer considered the number and percentage of claims denied for each of those periods.  CMS Ex. 4 at 6-7.  Petitioner argues that a better representation of its Medicare compliance would be to compare the number of denied claims to the total number of claims Petitioner filed during its Medicare enrollment from June 26, 2023 to June 29, 2024.  Petitioner asserts, and I accept as true for purposes of summary judgment, that it filed 243 claims during its enrollment, 13 were denied, and that yields a rate of denial of 5.3 percent.  P. Br. at 6-7.  Petitioner points to no law, statute or regulation, that specifies how to determine the period under consideration for purposes of applying 42 C.F.R. § 424.535(a)(8)(ii)(A).  Petitioner argues that renders the phrase ambiguous and not simply undefined.  But the rulemaking for the revision of 42 C.F.R. § 424.535(a)(8)(ii) effective January 1, 2022, resolves any doubt about the intent of the revision of the regulation.  In the 2022 revision of 42 C.F.R. § 424.535(a)(8), CMS explained in response to comments that: 

In paragraph (a)(8)(ii)(A), we proposed revisions to focus on the percentage of denials within subsets of the provider’s or supplier’s claim submissions rather than across the entire universe of their claim submissions.  Specifically, we would consider the percentage of submitted claims that were denied during the timeframe under consideration.  We believe existing paragraph (a)(8)(ii)(A) inhibits our capacity to target brief periods involving a significant percentage of denied

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claims; this is because this factor has been interpreted to require said percentage to be weighed against claim denials over the entire period of the provider’s or supplier’s enrollment.  Proposed revised paragraph (a)(8)(ii)(A) would better enable CMS to address these non-compliant periods by restricting the scope of denial percentages to a shorter duration. 

86 Fed. Reg. at 65,334.  CMS also deleted as part of that rulemaking 42 C.F.R. § 424.535(a)(8)(ii)(D) and (E) explaining that even short periods of intense improper billing can endanger Medicare and that length of enrollment should have no bearing on application of 42 C.F.R. § 424.535(a)(8)(ii) because it is the behavior and not the period of enrolment that is the main issue.  86 Fed. Reg. at 65,335.  Therefore, the phrase “period under consideration” is not ambiguous.  Rather, CMS intended to create discretion to identify the period under consideration to address the unique facts of each case. 

Petitioner argues it was confused by the fact the MAC paid subsequent claims for Medicare beneficiaries for whom claims were denied in Rounds 1 and 2.  Petitioner argues that the MAC’s payment of some claims and denial of others shows “the inconsistency and rashness” of the MAC’s decision to revoke.  Petitioner argues that the fact the MAC paid some claims is inconsistent with the MAC’s assertion that there was a pattern of abuse of billing privileges.  P. Br. at 7; P. Ex. 6, 7, 8 at 2-3 ¶ 12.  I am not required to draw a favorable inference for Petitioner that is unreasonable – in this instance that would be that the MAC’s actions were either inconsistent or rash.  The evidence shows that Petitioner was enrolled in Medicare and submitting claims.  Only 20 out of the total of Petitioner’s 243 claims filed between June 26, 2023 and June 29, 2024 (P. Br. at 7) were subject to prepayment review during Rounds 1 and 2 of the PPEO.  Therefore, it is perfectly logical that Petitioner received payment on claims that did not undergo prepayment review or that were approved based on prepayment review or subsequent claims appeal as were three approved claims from Round 1 and five claims from Round 2 plus the remainder of the 243 total claims filed by Petitioner.11 

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Petitioner argues under 42 C.F.R. § 424.535(a)(8)(ii)(C) that the claims denied for lack of a physician’s signature in Round 1 occurred due to a glitch in Petitioner’s electronic medical records system.  Petitioner corrected the problem and no claims were denied in Round 2 for lack of a physician’s signature.  Petitioner asserts that the claims denied for lack of a physician’s signature should not be considered.  Petitioner cites no authority in support of its argument.  P. Br. at 8-9.  A physician signature is required on a certification of terminal illness by 42 C.F.R. § 418.22(b)(5).  The written certification must be obtained by the hospice before it submits a claim for payment to Medicare.  42 C.F.R. § 418.22(a)(2), (3).  Petitioner does not dispute that it submitted five claims that were among the 10 claims reviewed during Round 1 that were not signed by a physician.  CMS Ex. 2 at 4; P. Br. at 8-9.  The five claims did not comply with Medicare requirements, and they are properly considered in the revocation determination.  Petitioner asserts the five claims should not be considered but does not explain why the five claims cannot be considered a pattern of submission of noncompliant claims.  CMS intentionally required no element of intent or knowledge for revocation under 42 C.F.R. § 424.535(a)(8)(ii).  79 Fed. Reg. at 72,516.  The fact that the absence of a physician signature may have been accidental, unintentional, or due to machine error or the error of a billing or other entity does not relieve Petitioner of the obligation to ensure its claims meet Medicare requirements.  I conclude it is appropriate to consider that Petitioner acted promptly to correct the problem.  But Petitioner was obligated to catch such errors before claims were submitted, not only when correction was compelled by the MAC or CMS.  Petitioner is ultimately responsible as a matter of law for ensuring that its claims for Medicare reimbursement are accurate and for any errors in those claims.  Louis J. Gaefke, D.P.M., DAB No. 2554 at 5-6 (2013) (citing 73 Fed. Reg. 36,448, 36,455 (June 27, 2008)).  Petitioner, as the enrolled provider, must ensure it complies with Medicare requirements.  42 C.F.R. §§ 424.510(d)(3), 424.516. 

Petitioner argues that the dates of service for Round 1 were June 26, 2023 through August 31, 2023, and that is not enough time to determine if a hospice patient is declining.  I accept as true for purposes of summary judgment that hospice patients may experience periods of stabilization due to good care and that does not show their terminal prognosis is not valid.  I also accept as true for purposes of summary judgment that hospice services are intended for palliation and management of terminal illness preventing suffering as the patient declines.  P. Br. at 10.  But Petitioner’s argument does not address that claims were denied because documents submitted did not support the terminal prognosis of six months or less given the normal course of the patient’s illness.  The evidence and arguments presented to me do not support an inference favorable to Petitioner that the certifications of the terminal prognosis for the beneficiaries were sufficient or that the claim denials were based on a change in the condition of the beneficiary after the terminal prognosis was made.  If Petitioner wanted to challenge the individual claims denials on the basis its documentation was sufficient, evidence and

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argument should have been presented through the claim appeals process in 42 C.F.R. pt. 405 subpt. I, and not in this proceeding. 

Petitioner points out that claims in Rounds 1 and 2 of the PPEO were reviewed by a registered nurse.  Petitioner represents that the same registered nurse conducted the remote training on January 17, 2024, and she stated during the training that she had not looked at the medical records submitted by Petitioner.  Petitioner argues it is “inconsistent and hypocritical” for CMS to use a registered nurse for these purposes given that only a physician can sign a certification of terminal prognosis.  P. Br. at 10.  Petitioner is correct that 42 C.F.R. § 418.22(b)(5) requires the signature of a physician on the certification of terminal illness.  But Petitioner cites no law or policy that requires that CMS use a physician to review hospice claims, certifications of terminal prognosis, or the documents that are submitted in support of a certification.  Petitioner recognizes that I may not review the clinical status of the beneficiaries whose claims were considered in the PPEO.  But Petitioner argues that I can find that CMS is “not exercising proper discretion” in referring to Petitioner’s noncompliance with Medicare claims requirements as egregious, particularly when the education provided did not specifically address Petitioner’s deficiencies and reviews were conducted by a registered nurse and not a hospice physician.  P. Br. at 10-11.  Petitioner is correct that diagnosis, including diagnosis of terminal illness, is best left to physicians who examine the beneficiary, and that fact is specifically recognized by section 1801 of the Act.  But the problem identified by the PPEO claim denials was that documentation submitted with the certification of terminal prognosis was insufficient, not that the prognosis was in error.  CMS has not taken the position that the Medicare beneficiaries were not terminal only that the documentation was insufficient to show that they were. 

Petitioner argues that CMS ignored but should have considered in Petitioner’s favor that it was accredited by ACHC, which has high standards and is considered a deeming authority by CMS.  Petitioner asserts it took seriously its Medicare obligations and diligently worked with CMS and ACHC to ensure Medicare compliance.  P. Br. at 11.  Petitioner’s assertions regarding its efforts to ensure Medicare compliance through assistance from ACHC and CMS are accepted as true for purposes of summary judgment.  The CMS hearing officer did not specifically mention considering this argument under 42 C.F.R. § 424.535(a)(8)(ii)(4).  I note that Petitioner’s assertions could favor or work against Petitioner in weighing the factor.  Petitioner’s efforts to achieve compliance could be favorably viewed.  But Petitioner’s failure to achieve compliance despite the assistance of the ACHC and CMS could be viewed as weighing heavily against Petitioner.  On summary judgment, I error in favor drawing the favorable inference for Petitioner.  Despite the fact I recognize that Petitioner made efforts to achieve and maintain compliance as it was committed by law to do, that fact does not disprove the CMS prima facie case or negate or rebut the evidence that 12 of 20 of Petitioner’s claims

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subject to prepayment review under the PPEO were noncompliant with Medicare requirements. 

Petitioner argues that even though it was subject to a PPEO, CMS was required to comply with 42 C.F.R. § 424.535 to revoke Petitioner’s Medicare enrollment and billing privileges.  P. Br. at 11-12.  I agree with Petitioner’s legal assertion.  But Petitioner’s argument that CMS did not properly evaluate the four factors under 42 C.F.R. § 424.535(a)(8)(ii) and, therefore, did not comply with the regulation, is simply in error for the reasons already discussed.  The CMS hearing officer evaluated the factors that are supported by the facts and law and exercised discretion to uphold the initial revocation determination.  Based on my review of the four factors of 42 C.F.R. § 424.535(a)(8)(ii), I conclude that Petitioner had a pattern of submitting hospice claims that did not meet Medicare requirements and that abuse of billing privileges occurred.  Accordingly, I conclude that there is a basis for revocation of Petitioner’s Medicare enrollment and billing privileges pursuant to 42 C.F.R. § 424.535(a)(8)(ii).  I have no authority to review the exercise of discretion by CMS or its contractor to revoke enrollment (rather than exercise discretion not to revoke) where there is a basis for such action.  Abdul Razzaque Ahmed, M.D., DAB No. 2261 at 19 (2009), aff’d, Ahmed v. Sebelius, 710 F. Supp. 2d 167 (D. Mass. 2010). 

To the extent that Petitioner’s argument may be construed to request a decision that the regulations are invalid and should not be enforced, I have no authority to grant any relief on that basis.  I am bound to follow the Act and regulations, and I have no authority to declare statutes or regulations invalid or ultra vires.  1866ICPayday.com, L.L.C., DAB No. 2289 at 14 (2009).  The Board has stated: 

It is well established that administrative forums, such as this Board and the Department’s ALJs, do not have the authority to ignore unambiguous statutes or regulations on the basis that they are unconstitutional.  A legislative rule is binding on the agency that issues it.  1 Kenneth Culp Davis and Richard J. Pierce, Jr., Administrative Law Treatise, § 6.5 (3rd ed. 1994), citing U.S. v. Nixon, 418 U.S. 683 (1974) (where the court noted that the executive branch was bound by the terms of a regulation it had issued, even though it was within its power to change that regulation).  Federal courts have refused “to recognize in administrative officers any inherent power to nullify legislative [or executive] enactments because of personal belief that they contravene the [C]onstitution.”  Gibas v. Saginaw Mining Co., 748 F.2d 1112, at 1117 (6th Cir. 1984) (citation omitted).  Thus, courts have noted that challenges to the constitutionality of an agency regulation lie

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outside the cognizance of that agency, and that generally, an ALJ is bound by the regulations promulgated by his administrative agency.  Howard v. FAA, 17 F.3d 1213, 1218 (9th Cir. 1994); Stieberger v. Heckler, 615 F. Supp. 1315, 1386 (S.D.N.Y. 1985), citing D’Amico v. Schweiker, 698 F.2d 903 (7th Cir. 1983). 

Sentinel Medical Laboratories, Inc., DAB No. 1762, at 9 (2001), aff’d, Teitelbaum v. Health Care Financing Admin., 32 F. App’x 865 (9th Cir. 2002). 

There is no dispute that on January 17, 2024, Petitioner’s staff had a remote education session with a registered nurse who was from the MAC or arranged by the MAC.  P. Br. at 2.  Petitioner asserts that the MAC representative told Petitioner’s staff that if Petitioner included the prior medical records from hospitals or other facilities for beneficiaries in Round 2 of the PPEO that should be sufficient.  P. Br. at 9; P. Ex. 8 at 2 ¶ 8.  Petitioner also notes that the MAC paid subsequent claims for the same beneficiaries whose claims were denied during Round 1 and 2 of the PPEO.  P. Br. at 3, 7-8; P. Exs. 6, 7.  I accept Petitioner’s assertions as true for purposes of summary judgment.  Petitioner’s assertions could be construed to be that CMS and the MAC should be estopped from revoking Petitioner’s enrollment.  But estoppel against the federal government, if available at all, is presumably unavailable absent “affirmative misconduct,” such as fraud.  See, e.g., Pac. Islander Council of Leaders, DAB No. 2091 at 12 (2007); Off. of Pers. Mgmt. v. Richmond, 496 U.S. 414, 421 (1990).  There is no evidence suggesting fraud or other affirmative misconduct on the part of CMS, the MAC, or a staff member.  And Petitioner does not allege that the advice was incorrect or misleading.  P. Br. at 2, 9. 

To the extent Petitioner’s arguments may be construed as a request that I grant equitable relief, I have no authority to do so.12  US Ultrasound, DAB No. 2302 at 8 (2010).  I am required to follow the Act and regulations and have no authority to declare statutes or regulations invalid.  1866ICPayday.com, L.L.C., DAB No. 2289 at 14 (2009). 

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Reenrollment Bar

CMS imposed a reenrollment bar of 10 years in this case.  Petitioner argues that the regulations providing for the reenrollment bar and reenrollment after revocation are ambiguous.  P. Br. at 12. 

The regulation is clear that if a provider’s or supplier’s Medicare enrollment and billing privileges are revoked, they are barred from participating in Medicare from the effective date of the revocation through the end of the reenrollment bar.  42 C.F.R. § 424.535(c)(1).  The bar to reenrollment begins 30 days after CMS or the MAC mail the notice of the initial determination to revoke.  The bar lasts a minimum of one year but may last 10 years depending on the severity of the basis for revocation.  42 C.F.R. § 424.535(c)(1)(i), (g). 

Petitioner’s argument is that CMS’ exercise of discretion in determining whether the reenrollment bar should be one or 10 years should be subject to review.  The language of 42 C.F.R. § 424.535(c) and (g) is not ambiguous, it is silent as to any right to review the determination of the period of the reenrollment bar.  There is no statutory or regulatory language establishing a right to review of the duration of the reenrollment bar CMS imposes.  Act § 1866(j)(8); 42 C.F.R. §§ 424.535(c), 424.545, 498.3(b); and 498.5.  The Board has held that the duration of a revoked supplier’s reenrollment bar is not an appealable initial determination listed in 42 C.F.R. § 498.3(b) and, thus, is not subject to ALJ review.  Vijendra Dave, M.D., DAB No. 2672 at 11 (2016).13 

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Preclusion List

Petitioner disputes that its Medicare enrollment and billing privileges should have been revoked.  Petitioner does not dispute that its Medicare enrollment and billing privileges were revoked and it was subject to a reenrollment bar, the first two criteria for adding an entity or individual to the CMS preclusion list.  P. Br. at 14.  Petitioner challenges adding its name to the CMS preclusion list specifically challenging CMS’ consideration of the factors supporting a determination that Petitioner’s conduct that was the basis for the revocation was detrimental to the Medicare program.  The factors are:  (1) seriousness of the conduct, (2) effect on the integrity of the Medicare program, and (3) any other evidence CMS deems relevant.  P. Br. at 14. 

Petitioner does not dispute that the CMS hearing officer considered the factors.  But argues that the hearing officer did not adequately analyze the three factors to determine that Petitioner’s conduct was detrimental to the Medicare program.  Petitioner argues that CMS has not presented evidence that Petitioner’s documentation errors were so serious to warrant Petitioner’s name being added to the CMS preclusion list.  Petitioner takes issue with the hearing officer’s assertion that Petitioner is not a trustworthy partner placing the Medicare trust fund at risk, without presenting evidence showing how Petitioner documented and billed incorrectly.  Petitioner points out that the MAC actually paid 95 percent of the claims submitted by Petitioner during the period it was enrolled in Medicare which, Petitioner argues, is inconsistent with the assertion that allowing Petitioner’s participation in Medicare places the trust fund at risk.  Petitioner argues that the hearing officer did not consider any other relevant factors.  Petitioner argues that Petitioner should have considered that Petitioner was focused on compliance, was accredited by the ACHC, and requested education from the MAC to learn how Petitioner’s claims were defective and what correction was required.  P. Br. at 14-15. 

The hearing officer did consider whether Petitioner’s underlying conduct was detrimental to the Medicare program using the three factors from 42 C.F.R. §§ 422.2 and 423.100 (preclusion list definition). 

The hearing officer found very serious Petitioner’s pattern of submitting noncompliant claims in Rounds 1 and 2 of the PPEO despite receiving education. 

The hearing officer considered Petitioner’s conduct harmful to the integrity of the Medicare program because CMS relies on its providers and suppliers to submit only claims that comply with Medicare requirements and Petitioner’s submission of multiple claims that were noncompliant for the same reasons showed Petitioner was not trustworthy in fulfilling its commitment to the Medicare program. 

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The hearing officer reasoned that the submission of noncompliant claims poses a risk to the Medicare program. 

The hearing officer rejected or gave little weight to Petitioner’s arguments that it improved its billing practices significantly; and that its overall claims denial rate was approximately five percent, which Petitioner characterized as within industry standards. 

The hearing officer commented that CMS policy is that providers and suppliers are responsible for submitting valid claims and that failure to do so poses a risk to the Medicare trust funds. 

The hearing officer reviewed the criteria and concluded that Petitioner’s underlying conduct was detrimental to the Medicare program which warranted adding Petitioner’s name to the CMS preclusion list for the duration of Petitioner’s bar to reenrollment.  CMS Ex. 4 at 11-12. 

My assessment of the criteria for determining Petitioner’s underlying conduct is detrimental to the Medicare program is based on the undisputed facts. 

Petitioner’s failure to ensure its documentation supported the certification of terminal prognosis, resulted in denied claims in both Rounds 1 and 2.  The claim denials are binding upon Petitioner and not subject to my review.  Round 1 of the PPEO identified seven claims that were denied by the MAC because the certifications of terminal illness were not signed by a physician or the documentation submitted did not support a terminal prognosis of six months or less. 

The claims denied in Round 1 were from the first claims Petitioner filed with Medicare and within months of receiving its ACHC accreditation.  When it enrolled in Medicare, Petitioner was required to attest that it knew and was abiding by Medicare requirements in the Act, regulations, and program instructions.   Rounds 1 and 2 were completed in less than a year after Petitioner first enrolled in Medicare.  Based on the 42 C.F.R. § 418.22(b) and MBPM § 20.1 Petitioner should have been aware of the requirements for documenting a certification of terminal illness because in filing its enrollment application Petitioner was required to attest it was aware of an agreed to abide by applicable statutes, regulations, and program instructions. 42 C.F.R. §§ 424.505 (must be enrolled to receive payment for Medicare covered items or service from Medicare or beneficiary), 424.510(d)(3) (must attest aware of and abides by all applicable statutes, regulations, and program instructions), 424.510(d)(10) (legally responsible for accuracy, completeness, and truthfulness of all information on application regardless of who completed the application). 

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Petitioner’s claims were found noncompliant by the MAC and, except for one claim from Round 1, Petitioner failed to appeal the denied claims.  Petitioner subsequently filed claims that were selected for prepayment review in Round 2, five of which were also denied because they were noncompliant with Medicare requirements because documents submitted did not support the certification of terminal illness with a prognosis of six months or less. 

Petitioner agrees that the certification of terminal illness is the “heart of Medicare hospice eligibility.”  P. Br. at 9.  Nevertheless, Petitioner failed to ensure it complied with this fundamental requirement as prescribed by 42 C.F.R. § 418.22 and MBPM § 20.1.  Petitioner complains it was not informed of specifically how its documentation for the certification of terminal illness for the denied claims deviated from the requirements of the regulations and program instructions.  But Petitioner failed to take the opportunity to challenge all the individual claims denials under 42 C.F.R. pt. 405 subpt. I when it had the opportunity and is now bound by its own failure with 12 denied claims that are not subject to my review. 

Whether Petitioner’s failings are intentional, due to neglect, or simply oversight, is not a question that needs to be addressed.  I draw the most favorable inference for Petitioner in considering summary judgment and I treat the claims as being noncompliant due to oversight and not intent or neglect. 

Considering the three criteria for determining Petitioner’s underlying conduct was detrimental to the best interests of the Medicare program (42 C.F.R. §§ 422.2, 423.100 (preclusion list defined), I conclude that Petitioner’s underlying conduct of filing the 12 noncompliant claims in Rounds 1 and 2 of the PPEO is serious and could affect the integrity of the Medicare program because it shows a lack of diligence and attention to detail necessary for a health care provider or supplier participating in the Medicare program.  Further the denied claims were not just 12 out of hundreds of claims examined but were from Petitioner’s first claims submissions.  P. Br. at 2.  Even if comparing the 12 denied claims with the total of 243 claims Petitioner filed during the period of its enrollment, it is not the number or percentage of claims, but the fact that those claims were denied based on Petitioners failure to meet what Petitioner concedes is a core requirement of the hospice program under Medicare (P. Br. at 9).  As other factors, I consider that Petitioner’s staff may have been inexperienced so early in Petitioner’s enrollment despite what Petitioner characterizes as rigorous training from the ACHC (P. Br. at 1).  Petitioner had both the ACHC and CMS to assist with ensuring staff was competent to file claims but that was not sufficient to prevent Petitioner’s noncompliant claims.  I accept that Petitioner quickly corrected the signature problem identified during Round 1.  But the signature requirement of 42 C.F.R. § 418.22(b)(5) is clear, explicit, and set out alone as a requirement in the published text of the regulation.  The fact that certifications of terminal prognosis of six months were not signed, despite the clear

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requirement that they be signed, shows at best a lack of attention to program requirements and is indicative of risk to the Medicare program. 

Pursuant to 42 C.F.R. §§ 422.222(a)(5)(i) and 423.120(c)(vii)(A), an individual or entity whose Medicare enrollment and billing privileges are revoked will be listed on the CMS preclusion list for the duration of the reenrollment bar.  CMS has discretion not to add the name of an individual or entity if CMS finds exceptional circumstances exit related to beneficiary access.  42 C.F.R. §§ 422.222(a)(6), 423.120(c)(vi).  But Petitioner does not argue the exceptional circumstances recognized by the regulations exist in this case. 

III.  Conclusion

For the foregoing reasons, the Medicare enrollment and billing privileges of Petitioner are revoked pursuant to 42 C.F.R. § 424.535(a)(8)(ii) and Petitioner’s provider agreement is terminated effective July 25, 2024.  There is a basis for listing Petitioner on the CMS preclusion list for the duration of its ten-year bar to reenrollment.