One Care Hospice, LLC, DAB, CR6929, (2026)

DECISION

Petitioner, OneCare Hospice, LLC, is a hospice agency in Nevada, who participated in the Medicare program as a provider of services.  Finding that Petitioner had been affiliated with a provider through a shared medical director that posed an undue risk of fraud, waste, or abuse to the Medicare program, the Centers for Medicare & Medicaid Services (CMS) revoked its Medicare enrollment, imposed a ten-year reenrollment bar, and added its name to the Medicare preclusion list.  42 C.F.R. § 424.535(a)(19); see 42 C.F.R. § 424.519. 

Petitioner appealed. 

I affirm CMS’s determination.  I find that CMS is authorized to revoke Petitioner’s Medicare enrollment, pursuant to 42 C.F.R. § 424.535(a)(19), and to add its name to the Medicare preclusion list because, based on its affiliation with the provider, PHHC of Nevada, LLC (PHHC) through a shared medical director, its enrollment poses an undue risk of fraud, waste, or abuse to the Medicare program. 

I have no authority to review the length of the reenrollment bar. 

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Background

Statutory and Regulatory Background.  The Medicare program, Title XVIII of the Social Security Act (Act), is a federally-subsidized insurance program that provides health care benefits to the elderly, disabled, and those suffering from end stage renal disease.  Medicare is divided into four parts: 

• Part A is the hospital insurance program.  It covers hospital services, post-hospital extended care, home health, and hospice care.  Act § 1811 (42 U.S.C. § 1395c);
• Part B, which is voluntary, is the supplementary medical insurance program, covering physician, outpatient, home health,1 and other services.  Act § 1832 (42 U.S.C. § 1395k);
• Part C is the Medicare Advantage program, which allows its participants to enroll in “Medicare + Choice” plans, managed by organizations, such as health maintenance organizations, that receive a fixed payment for each enrollee.  Act § 1851 (42 U.S.C. § 1395w-21); and
• Part D is the voluntary prescription drug benefit program.  Act § 1860D (42 U.S.C. § 1395w-101). 

The Medicare program is administered by CMS, acting on behalf of the Secretary of Health and Human Services.  CMS contracts with Medicare administrative contractors, who process and pay reimbursement claims and perform other duties necessary to carry out program purposes.  Act § 1842 (42 U.S.C. § 1395u).  Contractors pay claims to “providers” (Part A) and “suppliers” (Part B).  Physicians and other practitioners who furnish healthcare services may participate in the program as “suppliers” of services; however, they must enroll in the program in order to receive Medicare payments.  Act §§ 1861(d), (q), (r) (42 U.S.C. §§ 1395x(d), (q), (r)); 42 C.F.R. §§ 400.202; 424.505. 

CMS may revoke a supplier’s Medicare enrollment and billing privileges on one or more of the grounds set forth under 42 C.F.R. § 424.535(a).  So long as CMS shows that one of the regulatory bases exists, I must uphold the revocation.  Devine Sols. Grp. LLC, DAB No. 3159 at 12 (2024); Thomas Falls, M.D., DAB No. 3056 at 8 (2022); William Garner, M.D., DAB No. 3026 at 16 (2020); Eva Orticio Villamor-Goubeaux, DAB No. 2997 at 13 (2020); Wassim Younes, M.D. & Wassim Younes, M.D., P.L.C., DAB No. 2861 at 8 (2018); Norman Johnson, M.D., DAB No. 2779 at 11 (2017), and cases cited therein.  Although CMS itself has the “discretion to consider unique or mitigating circumstances

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in deciding whether, or how, to exercise its revocation authority,” I do not.  Johnson, DAB No. 2779 at 11 (quoting Care Pro Home Health, Inc., DAB No. 2723 at 9 n.8 (2016)).  I may not substitute my discretion for that of CMS in determining whether the revocation is appropriate.  Id.; Abdul Razzaque Ahmed, M.D., DAB No. 2261 at 19 (2009), aff’d., Ahmed v. Sebelius, 710 F. Supp. 2d 167 (D. Mass. 2010). 

Procedural Background.  Here, by letter dated September 8, 2025, the Medicare contractor, National Government Services, advised Petitioner that its Medicare privileges were revoked, effective October 8, 2025.  The letter explained that the contractor revoked Petitioner’s Medicare privileges because it had an affiliation with PHHC, an entity previously enrolled in the Medicare program.  PHHC’s Medicare billing privileges were revoked pursuant to 42 C.F.R. § 424.535(a)(8)(ii) – abuse of billing privileges.  The contractor determined that Petitioner’s affiliation with PHHC posed an undue risk of fraud, waste, or abuse to the Medicare program and that Petitioner’s participation in Medicare should therefore be revoked.  CMS Ex. 4; 42 C.F.R. §§ 424.519(i), 424.535(a)(19); see CMS Ex. 2. 

The contractor imposed a ten-year reenrollment bar, effective 30 days after the postmark date of the notice, pursuant to 42 C.F.R. § 424.535(c).  CMS Ex. 4 at 1. 

The letter also advised Petitioner that the contractor added it to CMS’s Preclusion List, as authorized by 42 C.F.R. §§ 422.2, 422.222, 423.100, and 423.120(c)(6).  It explained that, if Petitioner requested reconsideration, this action would become effective on the date the reconsidered determination was issued.  CMS Ex. 4 at 1-2. 

Petitioner requested reconsideration.  CMS Ex. 7. 

In a reconsidered determination, dated November 21, 2025, a CMS hearing officer upheld the revocation under sections 424.519 and 424.535(a)(19).  Citing section 424.519, she found that, because of its affiliation with PHHC through a shared medical director, Dr. Charles McSwain (Dr. McSwain), Petitioner had an affiliation with an entity that had a “disclosable event” and that the affiliation “pose[d] an undue risk of fraud, waste, or abuse.”  CMS Ex. 1. 

The hearing officer also upheld the ten-year reenrollment bar and the determination to include Petitioner’s name on CMS’s preclusion list.  CMS Ex. 1. 

Decision based on the written record.  CMS moves for summary judgment, which Petitioner opposes. 

My standing order instructs the parties to list any proposed witnesses and to submit their written direct testimony.  Standing Order at 9; see CRDP ¶ 16b.  The order also directs the parties to indicate which, if any, of the opposing side’s witnesses the party wishes to

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cross-examine and explains that an in-person hearing is needed only if a party wishes to cross-examine the opposing side’s witnesses.  Standing Order at 9.  CMS lists no witnesses.  Petitioner lists two witnesses and provides their written declarations.  P. Exs. 2, 3.  CMS, however, has not asked to cross-examine any of these witnesses.  Because there are no witnesses to be further examined or cross-examined, an in-person hearing would serve no purpose, and I may decide this case based on the written record.  See CRDP ¶ 19b.2 

Exhibits.  CMS submits its motion and brief (CMS Br.) with fifteen exhibits (CMS Exs. 1-15).  Petitioner submits its response and brief (P. Br.) with six exhibits (P. Exs. 1-6). 

CMS objects to Petitioner’s exhibits 1, 5, and 6 as new evidence that were not presented during the reconsideration process.  I addressed these arguments in my April 8, 2026 order. 

Petitioner objects to CMS exhibits 13, 14, and 15 on the grounds that the decisions were not readily available.  Following Petitioner’s objections, I ordered CMS to produce any additional decisions addressing part 424.535(a)(19).  I also allowed the parties additional time to brief the decisions.  As discussed in my April 8, 2026 order, I will take judicial notice of the decisions but do not enter the exhibits into evidence. 

I admit into evidence CMS Exs. 1-12 and P. Exs. 1-6. 

Issues

1.  Did CMS have the authority to revoke Petitioner’s Medicare enrollment pursuant to 42 C.F.R. § 424.535(a)(19)? 

2.  Did CMS have the authority to include Petitioner on the CMS’s Preclusion List pursuant to 42 C.F.R. §§ 422.2, 422.222, 423.100, and 423.120(c)(6)? 

I have no authority to review the length of the reenrollment bar.  Brian O’Connor, DAB No. 3140 at 18 (2024). 

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Discussion

1.  CMS properly revoked Petitioner’s Medicare enrollment under 42 C.F.R. § 424.535(a)(19) because its affiliation with PHHC poses an undue risk of fraud, waste and abuse.3 

Revocation of enrollment:  disclosure requirements.  Section 1866(j)(5) of the Act (codified at 42 U.S.C. § 1395cc(j)(5)) increases the disclosure requirements for Medicare providers and suppliers.  That provision requires that providers/suppliers disclose the following information: 

any current or previous affiliation (directly or indirectly) with a provider of medical or other items or services or supplier that has uncollected debt, has been or is subject to a payment suspension under a Federal health care program . . . , has been excluded from participation under the program under this title, the Medicaid program under title XIX, or the CHIP [Children’s Health Insurance Program] program under title XXI, or has had its billing privileges denied or revoked. 

Act § 1866(j)(5)(A) (Emphasis added).  The Act also authorizes CMS (acting on behalf of the Secretary) to deny Medicare enrollment if it determines that the disclosed affiliation “poses an undue risk of fraud, waste, or abuse.”  Act § 1866(j)(5)(B). 

Consistent with the statute, the regulations authorize CMS to revoke a supplier’s Medicare enrollment and billing privileges if she has or has had an affiliation, under section 424.519, that “poses an undue risk of fraud, waste, or abuse to the Medicare program.”  42 C.F.R. § 424.535(a)(19). 

Affiliation defined.  For purposes of applying section 424.519 (discussed below), an “affiliation” means any of the following: 

1.  A five percent or greater direct or indirect ownership interest in another organization. 

2.  A general or limited partnership interest (regardless of percentage) in another organization. 

3.  An interest in which he exercises operational or managerial control over, or directly or indirectly conducts the day-to-day operations of an organization, either

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under contract or through some other arrangement, regardless of whether the individual is a W-2 employee of the organization. 

4.  An interest in which an individual is acting as an officer or director of a corporation. 

5.  Any reassignment relationship under section 424.80. 

42 C.F.R. § 424.502 (Definition of Affiliation). 

The regulation specifically defines a “managing employee” as: 

A general manager, business manager, administrator, director, or other individual that exercises operational or managerial control over, or who directly or indirectly conducts, the day-to-day operation of the provider or supplier, either under contract or through some other arrangement, whether or not the individual is a W-2 employee of the provider or supplier.  For purposes of this definition, this includes, but is not limited to, a hospice or skilled nursing facility administrator and a hospice or skilled nursing facility medical director. 

42 C.F.R. § 424.502 (Definition of Managing employee (1))(Emphasis added). 

Disclosable events defined.  Sections 424.519 and 424.502 define a “disclosable event.”  A disclosable event (for purposes of section 424.519) includes situations in which a supplier has been subject to payment suspension under a federal health care program or when it has had its Medicare, Medicaid, or CHIP enrollment denied, revoked, or terminated.  42 C.F.R. § 424.502 (Definition of Disclosable event (2), (4)). 

When CMS requests it, an enrolling or revalidating provider or supplier must disclose “any and all affiliations” that it or any of its owning or managing employees has or had, within the previous five years, with a currently or formerly enrolled Medicare, Medicaid, or CHIP provider or supplier that has a disclosable event (as defined in section 424.502).  CMS will request such disclosures when it has determined that the provider or supplier may have at least one such affiliation.  42 C.F.R. § 424.519(b). 

The regulation then lists the information that the provider/supplier must disclose about each reported affiliation.  These include general identifying information, reasons for the disclosure, data regarding the affiliation relationship (e.g., length; type; degree of affiliation; if ended, the reason it ended).  42 C.F.R. § 424.519(c). 

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When it receives the information, CMS determines whether any of the disclosed affiliations pose an undue risk of fraud, waste, or abuse.  In making this determination, CMS considers the following factors:  1) the duration of the affiliation; 2) whether the affiliation still exists and, if not, how long ago it ended; 3) the degree and extent of the affiliation; 4) the reason for its termination (if applicable); and 5) additional information about the disclosable event.  42 C.F.R. § 424.519(f). 

If CMS determines that a particular affiliation poses an undue risk of fraud, waste, or abuse, it denies the provider/supplier’s enrollment application under section 424.530(a)(13), or it revokes the provider’s/supplier’s Medicare enrollment under section 424.535(a)(19).  42 C.F.R. § 424.519(g). 

Revocation of PHHC’s Medicare billing privileges.  PHHC was a Nevada hospice that participated in the Medicare program as a provider of services.  As a new provider, PHHC was subject to a “Provisional Period of Enhanced Oversight” review of the hospice services for which it billed the Medicare Program.  Pursuant to this enhanced oversight, the contractor reviewed ten claims that the hospice submitted between November 27, 2024, through January 31, 2025.  CMS Ex. 2.  Nine of the ten claims were denied.  In the nine instances of denial, the contractor determined that the information provided did not support a terminal prognosis of six months or less.  Id. 

In a letter dated April 22, 2025, the contractor advised PHHC that, pursuant to 42 C.F.R. § 424.535(a)(8)(ii), its Medicare billing privileges were revoked, effective May 22, 2025, and its provider agreement terminated because the hospice had abused its billing privileges.  CMS Ex. 2.  CMS imposed a ten-year reenrollment bar and placed the hospice on the preclusion list.  Id. 

The revocation of PHHC’s Medicare billing privileges was a disclosable event that prompted CMS to review Petitioner’s affiliation (if any) with the hospice and to determine whether that affiliation poses an undue risk of fraud, waste, or abuse to the Medicare program.  42 C.F.R. §§ 424.519, 424.535(a)(19). 

Dr. McSwain’s affiliation with PHHC.  In its Medicare enrollment documents, PHHC listed Dr. McSwain as contracted managing employee and medical director.  CMS Ex. 3 at 6. 

Petitioner’s affiliation with PHHC.  In its Medicare enrollment documents, Petitioner listed Dr. McSwain as contracted managing employee and contracted medical director.  CMS Ex. 5 at 8.  Petitioner argues that Dr. McSwain only serviced a small fraction of Petitioner’s patients and had no involvement in the majority of its operations.  P. Br. at 1.  Petitioner also asserts that it terminated its relationship with Dr. McSwain as soon as it became aware of PHHC’s revocation and implemented new safeguards to ensure compliance.  Id. at 1-2.  Petitioner does not deny that it employed Dr. McSwain as a

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medical director.  P. Br. at 2.  Because Dr. McSwain was Petitioner’s medical director, Petitioner was, by law, affiliated with Dr. McSwain and PHHC.  The regulation, on its face, includes the hospice’s medical director in the definition of managing employee.  42 C.F.R. § 424.502 (Definition of Managing employee (1)) (managing employee “includes . . . a hospice . . . medical director.”). 

Petitioner’s efforts to distance itself from PHHC – noting the relationship began when Dr. McSwain had not been subject to any Medicare or licensure sanctions and that it terminated its relationship with him as soon as it became aware of PHHC’s revocation – cannot change the nature of that affiliation. 

Moreover, as medical director, Dr. McSwain was responsible for the “medical component of the hospice’s patient care program.”  42 C.F.R. § 418.102(d).  By regulation, his duties included reviewing “the clinical information for each hospice patient and provid[ing] written certification that it is anticipated that the patient’s life expectancy is 6 months or less if the illness runs its normal course.”  42 C.F.R. § 418.102(b) (Emphasis added).  Dr. McSwain clearly did not fulfill his obligations as medical director in his employment with PHHC.  The reasons the contractor denied the hospice’s claims – because the information did not support a terminal prognosis of six months or less – are attributable to the medical director.  See CMS Ex. 2. 

Additionally, Dr. McSwain began his employment as medical director of PHHC on February 20, 2024.  CMS Ex. 3.  He started as Petitioner’s medical director on February 14, 2022.  CMS Ex. 5.  The noncompliant claims were submitted to Medicare from November 27, 2024 through January 31, 2025.  CMS Ex. 1.  Petitioner admits that it did not terminate its relationship with Dr. McSwain until after it became aware of the April 22, 2025 revocation.  P. Br. at 2.  As a result, it is clear that Dr. McSwain was acting as Petitioner’s medical director when PHHC’s noncompliant claims were submitted.  Thus, Petitioner’s affiliation with PHHC posed an undue risk of fraud, waste, or abuse.  42 C.F.R. § 424.519(f). 

Petitioner also argues that Dr. McSwain had a limited role as medical director and only saw 14% of its patients.  Petitioner asserts that it never had adverse actions taken against it or any audit activity suggesting noncompliance.  P. Br. at 3.  However, neither of these assertions can overcome the fact that Petitioner and PHHC had an affiliation when PHHC’s Medicare billing privileges were revoked because Dr. McSwain was the medical director of both PHHC and Petitioner at the time of the initial determinations.4  CMS Ex. 1 at 8-9. 

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Petitioner additionally argues that the revocation should be reversed pursuant to 42 C.F.R. § 424.535(e) because it terminated its relationship with Dr. McSwain on September 17, 2025.  42 C.F.R. § 424.535(e) provides CMS the discretionary authority to reverse a revocation.  CMS asserts that it did not receive notice within 15 days of the termination pursuant to the regulatory language.  CMS also asserts that the action taken against Petitioner was a result of the adverse activity of PHHC and not Dr. McSwain and, therefore, § 424.535(e) does not apply.  However, as noted above, CMS’s authority to reverse under this section is discretionary.  An ALJ, unlike CMS, is not afforded the discretion pursuant to section 424.535(e) to reverse a revocation based on proof that the business relationship has been terminated within 15 days of the revocation.  See 42 C.F.R. 535(e); Central Kansas Cancer Inst., DAB No. 2749 at 12 (2016); Main St. Pharmacy, LLC, DAB No. 2349 at 8 (2010).

Because CMS has grounds for revoking Petitioner’s Medicare enrollment under section 424.535(a)(19), I must sustain the revocation. 

2.  I have no authority to review CMS’s determination to impose a ten-year reenrollment bar. 

When a provider’s billing privileges are revoked, it may not participate in the Medicare program until the end of the reenrollment bar, which must be for a minimum of one year but no more than ten years (except under circumstances that don’t apply here), depending on the severity of the underlying offense.  42 C.F.R. § 424.535(c)(1).  Here, CMS imposed a ten-year reenrollment bar.  Because the length of a reenrollment bar is not listed as an appealable determination, I have no authority to review it.  42 C.F.R. § 498.3(b); Linda Silva, P.A., DAB No. 2966 at 11 (2019); Vijendra Dave, M.D., DAB No. 2672 at 9-12 (2016); accord William Garner, M.D., DAB No. 3026 at 16 (2020), Lilia Gorovits, M.D., P.C, DAB No. 2985 at 15-16 (2020). 

3.  CMS acted within its authority when it added Petitioner to its preclusion list because its Medicare privileges were revoked for conduct detrimental to the best interests of the Medicare program, and it is under a reenrollment bar.  I have no authority to review CMS’s determination as to the length of time she remains on the preclusion list. 

The preclusion list.  Effective January 1, 2019, CMS implemented a “preclusion list” as part of its effort to “prevent fraud, waste, and abuse, and to protect Medicare enrollees,”

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particularly with respect to prescription drug abuse.5  Pursuant to 42 C.F.R. § 422.2 (Part C) and 42 C.F.R. § 423.100 (Part D) CMS’s “preclusion list” includes individuals and entities that: 

• are currently revoked from Medicare enrollment, are under an active reenrollment bar, and CMS determines that the underlying conduct leading to the revocation is detrimental to the best interests of the Medicare program; or
• have engaged in behavior for which CMS could have revoked the prescriber, individual, or entity had it been enrolled in the Medicare program, and CMS determines that the underlying conduct that would have led to the revocation is detrimental to the best interests of the Medicare program. 

Review of Petitioner’s inclusion on the preclusion list.  My review here is limited to whether CMS had the authority to include Petitioner on the preclusion list.  42 C.F.R. § 498.3(b)(20); see 83 Fed. Reg. at 16,642-43 (explaining that appeals are limited to the individual’s inclusion on the preclusion list). 

As discussed above, CMS revoked Petitioner’s Medicare enrollment because it correctly determined that it had been affiliated with PHHC through Dr. McSwain whose Medicare billing privileges were revoked because it had abused those billing privileges.  As both providers’ medical director, Dr. McSwain was responsible for preventing most of the billing irregularities.  CMS reasonably determined that, based on that affiliation, Petitioner posed an “undue risk of fraud, waste, or abuse” to the Medicare program and revoked its enrollment.  Posing an “undue risk of fraud, waste, or abuse” is necessarily detrimental to the best interests of the Medicare program and its beneficiaries.  Because its enrollment was revoked for conduct deemed detrimental to the best interests of the Medicare program and its beneficiaries and because it is under a reenrollment bar, CMS is authorized to add it to the Medicare preclusion list.  42 C.F.R. §§ 422.2, 423.100.  I must uphold its determination to do so.  See Wendell Foo, M.D., DAB No. 2904 at 3 (2018), aff’d, 420 F. Supp.3d 1100 (D. Haw. 2019); Wassim Younes, M.D. & Wassim Younes, M.D., P.L.C., DAB No. 2861 at 8 (2018) (citing Patrick Brueggeman, D.P.M., DAB No. 2725 at 15 (2016)). 

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Having determined that CMS properly added Petitioner to the preclusion list, I have no authority to review CMS’s determination as to how long Petitioner remains there.  See 42 C.F.R. § 498.3(b); Vijendra Dave, M.D., DAB No. 2672 at 9-12 (2016) (limiting ALJ review to the determinations in section 498.3(b)). 

Conclusion

I affirm CMS’s determinations.