Eclipse Hospice Care, Inc., DAB CR6946 (2026)

DECISION

Here, we consider what it means for a provider of hospice services to be “operational.” 

Petitioner, Eclipse Hospice Care, Inc., is a California provider of hospice services that, until recently, participated in the Medicare program.  Finding that the hospice was not “operational” within the meaning of 42 C.F.R. § 424.535(a)(5), the Centers for Medicare & Medicaid Services (CMS) has revoked its Medicare enrollment and imposed a three-year re-enrollment bar. 

Petitioner appealed.  CMS now moves for summary judgment, which Petitioner opposes. 

I grant CMS’s motion.  The undisputed evidence establishes that the hospice was not operational within the meaning of 42 C.F.R. § 424.535(a)(5), giving CMS the authority to revoke its Medicare enrollment.  Having found that CMS had that authority, I may not review CMS’s exercise of its discretion to revoke. 

I have no authority to review CMS’s determination to impose a three-year re-enrollment bar. 

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Background

By letter dated August 8, 2025, the Medicare contractor, National Government Services, advised Petitioner Eclipse that it revoked the hospice’s Medicare billing privileges and terminated its provider agreement, effective July 9, 2025.  The letter explains that the contractor acted pursuant to 42 C.F.R. § 424.535(a)(5)(i) because the hospice was no longer operational.  The contractor also imposed a three-year enrollment bar, effective 30 days from the postmark date of the notice letter.  42 C.F.R. § 424.535(c); CMS Ex. 3 at 1. 

Petitioner requested reconsideration.  CMS Ex. 4. 

In a reconsidered determination, dated December 17, 2025, a CMS hearing officer concluded that, based on the findings from a July 9, 2025 site visit, the hospice was not operational.  Citing 42 C.F.R. § 424.535(a)(5), the hearing officer affirmed the initial determination.  CMS Ex. 7.  The hearing officer also upheld the three-year re-enrollment bar.  CMS Ex. 7 at 5. 

Petitioner now appeals that determination pursuant to 42 C.F.R. § 424.545. 

The parties’ submissions.  With its pre-hearing brief and motion for summary judgment (CMS Br.), CMS has filed 11 exhibits (CMS Exs. 1-11). 

Petitioner filed its own prehearing brief and opposition to summary judgment (P. Br.) with two exhibits (P. Exs. 1-2). 

Although the federal rules do not apply directly to these administrative proceedings, in considering summary judgment, I am “procedurally and substantively guided by Rule 56” of the Federal Rules of Civil Procedure.  CRD Procedures § 19; see Livingston Care Ctr. v. U.S. Dep’t. of Health & Hum. Servs., 388 F.3d 168, 172 (6th Cir. 2004).  Because I decide this case on summary judgment, I consider the proffered evidence, as required by Rule 56(c)(3) Fed. R. Civ. P., to determine whether it creates a material fact in dispute; I need not admit the exhibits into the record.  Lilia Gorovits, M.D., P.C., DAB No. 2985 at 3 n.4 (2020), aff’d sub nom. Gorovits v. Becerra, No. 20-1850 (E.D. Pa. May 17, 2021); Ill. Knights Templar Home, DAB No. 2274 at 6-7 (2009) (holding that an ALJ must review all proposed exhibits submitted in support of or in opposition to a motion for summary judgment; the ALJ is not required to admit those exhibits into the record).  The exhibits are “properly treated as an offer of proof,” to be evaluated, as necessary, to determine whether a genuine issue of material fact exists.  Univ. of Tex. MD Anderson Cancer Ctr., DAB No. 2927 at 18 (2019). 

Issues

I consider whether summary judgment is appropriate. 

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On the merits, the sole issue before me is whether Eclipse Hospice was operational within the meaning of 42 C.F.R. § 424.535(a)(5). 

Discussion

1.  CMS is entitled to summary judgment because the undisputed evidence establishes that, during posted business hours on July 9, 2025, the hospice’s door was locked; its lights were off; and no one was present.  Because it was not open to the public and properly staffed, it was not operational within the meaning of 42 C.F.R. § 424.530(a)(5), and CMS had the authority to revoke its Medicare enrollment.1

Summary judgment.  Summary judgment is appropriate if a case presents no genuine issue of material fact, and the moving party is entitled to judgment as a matter of law.  Southpark Meadows Nursing & Rehab. Ctr., DAB No. 2703 at 5 (2016); W. Texas LTC., DAB No. 2652 at 5 (2015); Bartley Healthcare Nursing & Rehab., DAB No. 2539 at 3 (2013) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322-25 (1986)); Ill. Knights Templar Home, DAB No. 2274 at 3-4, and cases cited therein. 

An administrative law judge (ALJ) may decide a case on summary judgment.  Shah v. Azar, 920 F.3d 987, 996 (5th Cir. 2019) (citing Cedar Lake Nursing Home v. U.S. Dep’t of Health & Hum. Servs., 619 F.3d 453, 457 (5th Cir. 2010)); see Fal-Meridian, Inc. v. U.S. Dep’t of Health & Hum. Servs., 604 F.3d 445, 449 (7th Cir. 2010). 

The moving party may show the absence of a genuine factual dispute by presenting evidence so one-sided that it must prevail as a matter of law or by showing that the non-moving party has presented no evidence “sufficient to establish the existence of an element essential to [that party’s] case, and on which [that party] will bear the burden of proof at trial.”  Livingston Care Ctr. v. U.S. Dep’t of Health & Hum. Servs., 388 F.3d 168, 173 (6th Cir. 2004) (quoting Celotex, 477 U.S. at 322).  To avoid summary judgment, the non-moving party must then act affirmatively by tendering evidence of specific facts showing that a dispute exists.  Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 n.11 (1986); see also Vandalia Park, DAB No. 1939 (2004); Lebanon Nursing & Rehab. Ctr., DAB No. 1918 (2004).  The non-moving party may not simply rely on denials but must furnish admissible evidence of a dispute concerning a material fact.  Ill. Knights Templar, DAB No. 2274 at 4; Livingston Care Ctr., DAB No. 1871 at 5 (2003).  In doing so, the non-moving party must show more than “some metaphysical doubt as to the material facts.”  W. Tex. LTC Partners, DAB No. 2652 at 6;

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1866ICPayday.com, L.L.C., DAB No. 2289 at 3 (2009) (quoting Matsushita, 475 U.S. at 587). 

In examining the evidence for purposes of determining whether summary judgment is appropriate, I must draw all reasonable inferences in the light most favorable to the non-moving party.  Heritage House of Marshall Health & Rehab., DAB No. 3035 at 8 (2021); Brightview Care Ctr., DAB No. 2132 at 2, 9 (2007); Livingston Care Ctr., 388 F.3d at 172; Guardian Health Care Ctr., DAB No. 1943 at 8 (2004).  However, drawing factual inferences in the light most favorable to the non-moving party does not require that I accept the non-moving party’s legal conclusions or draw inferences that are not reasonable.  Vibra Hosp. of Charleston – TCU, DAB No. 3094 at 11 (2023); W. Tex. LTC, DAB No. 2652 at 6-7; cf. Guardian, DAB No. 1943 at 11 (“A dispute over the conclusion to be drawn from applying relevant legal criteria to undisputed facts does not preclude summary judgment if the record is sufficiently developed and there is only one reasonable conclusion that can be drawn from those facts.”); see Green Valley Health Care & Rehab. Ctr., DAB No. 2947 at 8 (2019) (quoting Johnson v. Perez, 823 F.3d, 701, 705 (D.C. Cir. 2016)) (noting that a genuine factual dispute does not exist “when a putatively disputed body of evidentiary material could not, even assuming a sympathetic factfinder, reasonably support a finding crucial to the nonmoving party’s legal position.”); Brightview, DAB No. 2132 at 10 (entry of summary judgment upheld where inferences and views of non-moving party are not reasonable).2 

Program requirements.  To receive Medicare payments for items furnished to a Medicare-eligible beneficiary, a provider, such as Petitioner, must be enrolled in the Medicare program.  Social Security Act § 1834(j)(1)(A); 42 C.F.R. § 424.505.  To enroll and maintain its enrollment, the provider must comply with Medicare program requirements, including the “enrollment requirements” set forth in 42 C.F.R. Part 24, subpart P (sections 424.500 through 424.575).  The provider must be “operational.”  To be operational, the provider must, among other requirements, have a qualified physical practice location, be open to the public, be prepared to submit valid Medicare claims, and be properly staffed, equipped, and stocked to furnish items and services.  42 C.F.R. §§ 424.502, 424.510(d)(6).  CMS may deny a provider’s enrollment if it determines, based on “on-site review or other reliable evidence, that the provider is not operational.”  42 C.F.R. § 424.535(a)(5); Vamet Consulting & Medical Services, DAB No. 2778 at 1-2 (2017); Mission Home Health, et al., DAB No. 2310 (2010). 

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The referral.  CMS’s Center for Program Integrity (CPI) promotes the integrity of the Medicare and Medicaid programs through audits and policy reviews.  It serves as CMS’s “focal point for all national and State-wide Medicare and Medicaid . . . fraud and abuse issues.”  https://www.cms.gov/about-cms/who-we/leadership/center-program-integrity.  The Division of Quality & Compliance is a component within CPI that, among other responsibilities, coordinates with groups to perform audits and reviews designed to prevent improper payments and to verify provider data. 

The Division of Quality & Compliance flagged several hospices to confirm their operational status.  CMS Ex. 9 at 2 (DeBernardi Decl. ¶ 7).  No evidence refutes the fact that the investigators were acting at the behest of CMS’s program integrity division.  In fact, the investigators worked for the Division of Quality & Compliance.  CMS Ex. 9 at 1 (DeBernardi Decl. ¶¶ 1, 3).  Investigator Andrew DeBernardi explained: 

As a Health Insurance Specialist on the Enhanced Site Visit Team, my job is to identify high-risk providers and providers of concern to Medicare program integrity, which may include hospices. 

CMS Ex. 9 at 1 (DeBernardi Decl. ¶ 3). 

Petitioner disregards this evidence and asserts (inaccurately) that Eclipse “was apparently targeted for an ‘enhanced site visit[,]’ not because of any particular enrollment issue with Eclipse, but because it was ‘located near several other hospices at which the team conducted the enhanced site visits on July 9, 2025.’”  P. Br. at 4, citing CMS Ex. 9 at 2 (DeBernardi Decl. ¶ 7).  The evidence in the record belies this assertion, and I need not accept it.  Cardiac Imaging Associates, DAB No. 3133 at 12 (2024); Atty’s Parti Expo, DAB No. 2925 at 8 (2021) (pointing out that arguments by counsel are not evidence).  The uncontroverted evidence establishes that Eclipse was flagged by the program integrity division and that it was one of several hospices in the area that were flagged for enhanced site visits.3 

The question, however, is not material.  CMS does not require a specific reason or motivation for conducting an onsite visit.  It may perform an onsite review at any time in

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order to “verify that the enrollment information submitted to CMS or its agents is accurate and to determine compliance with Medicare enrollment requirements.”  42 C.F.R. § 424.517(a); I & S Healthcare Services, DAB No. 2519 at 1 (2013). 

The on-site visit.  On July 9, 2025, a team of investigators from CMS’s Division of Quality & Compliance went to Eclipse’s office to conduct an enhanced site visit.  CMS Ex. 2; CMS Ex. 9 at 2-3 (DeBernardi Decl. ¶ 10).  Contractors ordinarily conduct “normal site visits” in order to verify that the location exists.  In contrast, an “enhanced site visit” involves interviewing a manager and/or owner, taking photographs, and reviewing documents.  CMS Ex. 9 at 2 (DeBernardi Decl. ¶ 9). 

The hospice’s posted hours of operation were 9:00 a.m. to 5:00 p.m. and the team arrived at about 4:30 p.m.  CMS Ex. 2 at 1; CMS Ex. 11.  The hospice was on the third floor of an office building.  CMS Ex. 9 at 3 (DeBernardi Decl. ¶ 11); see CMS Ex. 2 at 10-11.  The investigators went to the third floor and located the suite for Eclipse.  The lights were off.  The investigators knocked on the door, but no one responded.  Id.  The team was unable to enter the premises and unable to speak to any manager, owner, or employee.  CMS Ex. 9 at 3 (DeBernardi Decl. ¶ 15). 

Investigator DeBernardi called the number that was displayed on the door.  Someone answered but immediately hung up.  Investigator DeBernardi called again, and his call went straight to voicemail.  A pre-recorded message indicated that the number was a Google phone account and that the Google voice number was currently unavailable.  CMS Ex. 9 at 3 (DeBernardi Decl. ¶ 12). 

Consistent with Investigator DeBernardi’s testimony, Owner Pono declares that, when she acquired the hospice, she retained the original Google voice number, which was supposed to forward calls to her own cellphone.  No voice mail was set up.  P. Ex. 1 at 1 (Pono Decl. ¶ 5).  Petitioner maintains that Eclipse “did not get a call on July 9, 2025.”  P. Br. at 5.  But that is not what Eclipse’s owner said; she said that “to the best of [her] recollection, [she] did not receive a phone call that afternoon.”  P. Ex. 1 at 1-2 (Pono Decl. ¶ 10) (Emphasis added). 

Again, however, any apparent discrepancy regarding whether the investigator called the number on the door is not material.  In Vamet Consulting, a telephone number was posted on the home health agency’s door but the investigator did not call it.  The Departmental Appeals Board held that posting a telephone number is not a substitute for making a qualified physical practice location open and accessible during business hours.  It “does not constitute compliance with the requirement that the provider be ‘open to the public for the purposes of providing health care related services.’”  Vamet Consulting, DAB No. 2778 at 7.  Listing a telephone number is “not sufficient to assure either customers or inspectors would be able to gain access during Vamet’s listed business hours.  Id., citing Benson Ejindu d/b/a/ Joy Medical Supply, DAB No. 2572 at 7 (2014). 

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Petitioner concedes that the office was locked and that no one was present.  See P. Br. at 8 (“Eclipse’s practice location was not accessible late in the day on July 9, 2025.”).  Owner Pono has offered a variety of explanations for the locked office and absence of staff.  She refers only to herself and her office manager and does not identify any other employees.  To explain why staff might not be present at any particular time, she writes (in the hospice’s request for reconsideration): 

• She “would surmise” that “we were in the Conference Room” preparing for an ACHC (Accreditation Commission for Health Care) survey;
• Staff would have lunch in a roof-top garden;
• The “manager” did not post a removable sign “which we hang whenever we leave the office for meal breaks”;
• The same manager “does not like to put the lights on and has a tendency to lock the door whenever she leaves the office[,] making the site temporarily inaccessible.” 

CMS Ex. 4 at 1. 

In a statement dated September 30, 2025, Owner Pono identifies a “full-time employee,” the office manager, who began working at Eclipse on January 25, 2025, and resigned on July 15, 2025.  CMS Ex. 5 at 9; CMS Ex. 6 at 9. 

In a declaration, submitted during these proceedings, Owner Pono repeats that “from time to time,” she and her staff use the common conference room “down the hall from our office.”  P. Ex. 1 at 1 (Pono Decl. ¶ 9).  She is initially vague about where she was when the inspectors arrived on July 9:  “I could anywhere be in the conference room down the hall or in the [r]est room, which is at the very end of the hall.”  P. Ex. 1 at 2 (Pono Decl. ¶ 10).4  Ultimately, however, she claims that, “to the best of my recollection, I was in the conference room late in the afternoon of July 9, 2025.”  P. Ex. 1 at 2 (Pono Decl. ¶ 12).  She concedes the “missing piece”:  the office manager was absent that day so no one was in the office.  P. Ex. 1 at 2 (Pono Decl. ¶ 13). 

Petitioner suggests that the hearing officer affirmed the revocation because she “did not believe that Eclipse staff were in the conference room” at the time of the attempted site visit.  P. Br. at 2.  In fact, CMS made no credibility findings regarding where the owner and office manager were at the time of the attempted site visit.  Putting aside Owner Pono’s own uncertainty about where she was, the issue is irrelevant.  So long as the

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hospice’s office was locked and no staff were present, it was not operational within the meaning of the regulation.  That staff may have been in a conference room and that the conference room may have been in the same building does not make the hospice operational.  In Vamet, the Board rejected Petitioner’s claim that it was operational because its staff were physically in the office but “performing duties in the back room.”  To be operational, the “owner or staff needed to answer the door when the inspector knocked.”  DAB No. 2778 at 4, quoting Vamet Consulting & Medical Services, DAB CR4677 at 8 (2016). 

Petitioner also criticizes CMS because it attempted only one site visit, and the investigators arrived late in the day.  The regulation does not require multiple site visits.  It unequivocally requires that the provider be open to the public during posted business hours.  AR Testing, DAB No. 2679 at 7-8 (upholding revocation where the practice location was unattended on the single date of the attempted inspection). 

Although the site visit occurred near closing time, it was nevertheless within the posted business hours.  Inasmuch as providers have some flexibility in determining their hours (within reason), requiring that someone be present during those hours is hardly onerous.  Moreover, Owner Pono concedes that her office manager was not in the office that day, and Petitioner does not suggest the investigators would have found the offices open if they’d arrived any earlier. 

Thus, although Eclipse may have had a qualified practice location, because it was not open to the public, and it was not properly staffed, it was not operational and CMS was authorized to revoke its Medicare enrollment.  Vamet Consulting, DAB No. 2778. 

Having determined that CMS had a legal basis for denying enrollment, I must uphold that determination.  Cardiac Imaging Associates A Medical Corporation, DAB No. 3133 at 16 (2024); Thomas Falls, M.D., DAB No. 3056 at 8 (2022); Vamet Consulting & Medical Services, DAB No. 2778 at 6 (2017). 

2.  I have no authority to review CMS’s determination to impose a three-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 circumstance 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 three-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, MD, DAB No. 3026 at 16 (2020), Lilia Gorovits, MD, DAB No. 2985 at 15-16 (2020). 

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Conclusion

By its own admission, on July 9, 2025, during its posted hours of operation, Eclipse’s door was locked; its lights were off; and no one was present.  It was therefore not operational at its practice location, and CMS justifiably revoked its Medicare enrollment pursuant to section 424.535(a)(5).