Hospice and Palliative Care of California, Inc., ALJ Ruling 2026-21 (HHS-CRD May 1, 2026)

DISMISSAL

Petitioner, Hospice and Palliative Care of California, Inc., is a hospice, located in Pasadena, California, that participated in the Medicare program until October 9, 2025.

Following a survey, completed on September 16, 2025, the Centers for Medicare & Medicaid Services (CMS) terminated Petitioner’s program participation because the hospice did not maintain substantial compliance with Medicare conditions of participation.  Although Petitioner has requested review, it does not challenge CMS’s finding of substantial noncompliance.  Instead, Petitioner concedes “the gravity of the findings cited in the survey” but claims that the hospice took “decisive and comprehensive action to implement robust, systemic changes to ensure immediate, full, and sustained compliance with all Medicare Conditions of Participation.”  Hearing Request at 1 (E-file # 1).

CMS moves to dismiss the appeal pursuant to 42 C.F.R. § 498.70(b) because Petitioner does not have a right to a hearing on the issues it raises.

I agree that Petitioner does not have the right to a hearing on the issues it raises and dismiss Petitioner’s hearing request.

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Discussion

1. Petitioner’s hearing request must be dismissed because it does not raise an issue that I have the authority to review.1

Statutory and regulatory background.  A “hospice program” is a “provider of services” that is primarily engaged in providing items and services to terminally ill individuals.  Social Security Act (Act) §§ 1861(u),(dd)(1)(2); 42 C.F.R. §§ 418.3 (defining “hospice,” “hospice care,” and “terminally ill”).

Sections 1812(d) and 1861(dd) of the Act extend Medicare coverage to hospice services if certain conditions are met.  To participate in and receive payment from Medicare, a hospice must satisfy all the provisions of section 1861(dd) of the Act, and it must be in substantial compliance with the conditions of participation set forth in 42 C.F.R. Part 418.  42 C.F. R. § 488.3(a).2  

To monitor compliance, CMS contracts with state agencies that periodically survey the hospices.  Act § 1864(a); 42 C.F.R. § 488.10.  Hospices are surveyed as often as CMS deems necessary.  42 C.F.R. §§ 488.20(a).  If a provider does not comply with the provisions of section 1861 or the relevant regulations, CMS, acting on behalf of the Secretary of Health and Human Services, may terminate its provider agreement.  Act § 1866(b)(2); 42 C.F.R. § 489.53(a)(1).

Section 1866(h) of the Act authorizes administrative review of determinations that a provider has failed to comply substantially with Medicare program requirements “to the same extent as provided in section 205(b) of the [Act].”  Under section 205(b), the Secretary must provide reasonable notice and opportunity for a hearing “upon request by [the affected party] who makes a showing in writing that his or her rights may be prejudiced” by the Secretary’s decision.

A provider dissatisfied with an initial determination – which includes a finding of noncompliance that results in CMS imposing a remedy – may request a hearing, and

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hearings are conducted in accordance with procedures set forth in 42 C.F.R. Part 498.  42 C.F.R. §§ 488.24(c); 498.3(b)(8); 498.5(b).

On motion of either party, or his/her own motion, an administrative law judge may dismiss a hearing request if the provider does not have a right to a hearing.  42 C.F.R. § 498.70(b).

The notices.  Here, on September 16, 2025, the California Department of Public Health (state agency), acting on behalf of CMS, completed a complaint investigation of the hospice and cited five condition-level deficiencies.  CMS Ex. 4.  In a letter, dated September 22, 2025, CMS advised the hospice that it did not meet the Medicare conditions of participation and that two of its deficiencies (which were not corrected during the survey) posed immediate jeopardy to resident health and safety.  CMS was therefore imposing remedies:  suspension of payment for new admissions; a federal Civil Money Penalty of $5,000 per instance; and termination, unless the hospice achieved substantial compliance before October 9, 2025.  CMS Ex. 1 at 1-3.

The letter advised Petitioner of its appeal rights and explained that the procedures governing the process are found at 42 C.F.R. § 498.  CMS Ex. 1 at 5.  The letter also explained that the hearing request “should identify the specific issues, findings of fact and conclusions of law with which you disagree.”  The request should also “specify the basis for contending that the findings and conclusions are incorrect.”  Id. at 6.

In a follow-up letter, dated October 7, 2025, CMS advised Petitioner that it no longer qualified as a hospice in the Medicare program and that its Medicare agreement would terminate on October 9, 2025.  CMS Ex. 3.

Petitioner’s hearing request.  In a letter dated October 17, 2025, Petitioner appealed.3  The appeal does not challenge any of the survey findings.  In fact, it acknowledges the hospice’s noncompliance:  “We recognize the gravity of the findings cited in the survey, including the two unremoved Immediate Jeopardies (IJs).”  Hearing Request at 1(E-file # 1).

The appeal focuses on the hospice’s efforts to achieve compliance: 

• The hospice “has already taken decisive and comprehensive action to implement robust, systemic, changes to ensure immediate, full, and sustained compliance with all Medicare Conditions of Participation.”  Id.

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• “We are confident that the necessary corrective actions and organizational reforms have been successfully implemented to address every cited deficiency and remove the Immediate Jeopardies.”  Id. at 2.

With its hearing request, Petitioner submits a Plan of Correction with approximately 350 pages of attachments.  E-file # 1b.

On its face, the appeal does not raise any issue that I have the authority to review.  See 42 C.F.R. §§ 498.3(b) (listing initial determinations that are reviewable); 498.70(b) (directing dismissal if the party requesting review does not have a right to a hearing); see C@A Hospice, Inc., DAB CR5628 at 4 (2020).

CMS’s motion and Petitioner’s response.  CMS moves to dismiss Petitioner’s appeal, arguing that CMS’s decision not to accept a corrective action plan is not an initial determination that is subject to review.  CMS Motion at 3-4 (E-file # 5).

In responding to CMS’s motion, Petitioner does not amend its hearing request to challenge any of the specific survey findings.  It doubles down on the one determination that it did challenge, repeatedly insisting that CMS should have accepted its plan of correction:

• “The Request goes on to discuss the curing of any IJs[] and further outlines how those immediate jeopardies have been cured in great detail.”
• “[T]he hearing request, together with its attachments, including a lengthy and detailed point-by-point . . . plan of correction, are sufficient to satisfy the standard for requesting a hearing in 42 C.F.R. § 498.40(b).”

Petitioner’s Opposition to Motion to Dismiss at 4-5 (E-file # 11).

Ruling.  Petitioner’s response to CMS’s motion includes just one conclusory statement suggesting that it “disputes the factual basis and scope of non-compliance findings that underly it.”  Id. at 4.  But this does not satisfy the regulatory requirements for an adequate hearing request.

The statement presents two major problems.  First, Petitioner’s hearing request, which Petitioner has not asked to amend, does not dispute the factual basis of the non-compliance findings.

Second, even if Petitioner had included the statement in its hearing request, one conclusory statement does not satisfy the requirements of 42 C.F.R. § 498.40 – that the hearing request must identify the specific issue and the findings of fact and conclusions of

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law with which the party disagrees, and must specify the bases for contending the findings and conclusions are incorrect. 4

Finally, with respect to the issues Petitioner has raised in this appeal, CMS is not required to afford a provider the opportunity to correct a condition-level deficiency before terminating its program participation.  See Blossom South, LLC v. Sebelius, 987 F. Supp. 2d 289, 302 (W.D.N.Y. 2013) (acknowledging that CMS has the authority to order immediate termination, without giving the provider an opportunity “to rectify matters once that decision had been made.”); Angel Kidney Care, DAB No. 2795 at 8 n.7 (2017), citing Aspen Grove Home Health, DAB No. 2275 at 23 (2009) (noting that CMS is not required to afford the opportunity to correct noncompliance before terminating providers that are subject to the survey, certification, and enforcement procedures at 42 C.F.R. Part 488); Oaks of Mid City Nursing & Rehab. Ctr., DAB No. 2375 at 29-30 (2011);5 Cmty. Home Health, DAB No. 2134 at 14 (2007); Excelsior Health Care Srvs., Inc., DAB No. 1529 at 6-7 (1995).  Affording the facility an opportunity to correct is wholly within CMS’s discretion, and I have no authority to review it.

Nor may I review CMS’s determination to reject a provider’s plan of correction.  That action is not listed as an initial determination and is therefore not reviewable.  42 C.F.R. §§ 498.3(b), 498.5; see HRT Lab., Inc., DAB No. 2118 at 11 (2007); Hermina Traeye Mem’l Nursing Home, DAB No. 1810 at 13 (2002) (ruling that, in affirming the termination of a provider, the “ALJ properly concluded that he lacked authority to adjudicate the question of whether [CMS] abused its discretion in deciding to reject the [plan of correction].”).

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Conclusion

Because Petitioner has not appealed any issue that I have the authority to review, I dismiss this hearing request pursuant to 42 C.F.R. § 498.70(b).