Guardian Hospice MN, LLC d/b/a Moments Hospice, DAB No. 3179 (2025)

FINAL DECISION ON REVIEW OF ADMINISTRATIVE LAW JUDGE DECISION

Petitioner Guardian Hospice MN, LLC d/b/a Moments Hospice appeals the decision of an administrative law judge (ALJ) in Guardian Hospice MN, LLC d/b/a Moments Hospice, DAB CR5326 (ALJ Decision).  The ALJ upheld the determination of the Centers for Medicare & Medicaid Services (CMS) that the effective date of Petitioner’s Medicare provider agreement and billing privileges is November 20, 2017.  The ALJ Decision is supported by substantial evidence and is free of legal error.  We therefore affirm the ALJ Decision.

Legal Background

The Social Security Act (Act) authorizes the Secretary of Health and Human Services (Secretary) to establish regulations for enrolling providers, such as hospice programs, in the Medicare program.  Act § 1866(j)(1)(A).¹  A “hospice program” is a “provider of services” that “is primarily engaged in providing” a variety of “items and services . . . to . . . terminally ill individual[s],” be it “in individuals’ homes, on an outpatient basis, [or] on a short-term inpatient basis . . . .”  Act § 1861(u), (dd)(1), (2); see also 42 C.F.R. §§ 418.3 (defining “Hospice,” “Hospice care” and “Terminally ill”), 488.1 (defining “Provider of services or provider” to include a “hospice”).

To participate as a provider in Medicare and bill and receive payment for covered items or services, a hospice must enroll in the Medicare program by meeting the requirements specified in the Act and the regulations and enter into a provider agreement with CMS (acting on behalf of the Secretary).  See Act §§ 1861(dd), 1866; 42 C.F.R. Parts 418, 489, 424 (subpart P).  “Enroll/Enrollment” is defined in part as “the process that Medicare uses to establish eligibility to submit claims for Medicare-covered items and services.”

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42 C.F.R. § 424.502.  A “Provider agreement” is “an agreement between CMS and [a hospice] to provide services to Medicare beneficiaries and to comply with the requirements of section 1866 of the Act.”  Id. § 489.3.

The enrollment process for a hospice includes, inter alia, the completion of a survey, which may be performed by a CMS-approved accrediting organization (AO), ² and certification.  See 42 C.F.R. §§ 424.510(d)(5), 489.1(a)(2), (a)(3), (b); 489.2(b)(6); 489.10(d).  A hospice also “must submit enrollment information on the applicable enrollment application,” and “[o]nce [it] successfully completes the enrollment process, . . . CMS enrolls [it] into the Medicare program.”  Id. § 424.510(a)(1).  CMS then establishes an effective date for the hospice’s provider agreement and billing privileges in accordance with 42 C.F.R. § 489.13.  See id. §§ 424.510(b), (c), 424.520(a).

To participate in Medicare, a hospice must show that it complies with the health and safety requirements, called “conditions of participation,” in 42 C.F.R. Part 418.  The term “Conditions of participation” is defined in part as “the requirements providers other than skilled nursing facilities must meet to participate in the Medicare program.”  42 C.F.R. § 488.1.  Each condition of participation represents a general health or safety requirement described in a single regulation, which is organized in subparts referred to as standards.  A hospice’s compliance with a condition of participation is determined by “the manner and degree to which [it] satisfies the various standards within each condition [of participation].”  Id. § 488.26(b).  A hospice “is not or is no longer in compliance with the conditions of participation . . . where the deficiencies are of such character as to substantially limit [its] . . . capacity to furnish adequate care or which adversely affect the health and safety of patients.”  Id. § 488.24(b).  CMS (on behalf of the Secretary) may “refuse to enter into an agreement” with a provider that “fails substantially” to meet a condition of participation.  Act § 1866(b)(2)(B); see also 42 C.F.R. § 488.3(a).

If, on survey by a CMS-approved AO, a hospice “demonstrates full compliance with all of the accreditation program requirements of the [AO]’s CMS-approved accreditation program,” then CMS may grant “deemed status” to the hospice—that is, certify it for Medicare participation based on the AO’s recommendation.  42 C.F.R. §§ 488.4(a)(1),  488.1 (defining “Deemed status” and “National accrediting organization”); see also Act § 1865(a)(1)(A) (authorizing CMS to deem a hospice as meeting the conditions of participation based on accreditation by an approved AO); State Operations Manual (SOM), CMS Pub. 100-07, Ch. 2, The Certification Process, § 2005A4 (discussing “deemed” providers (and suppliers) surveyed by an AO with a CMS-approved Medicare

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accreditation program).  If CMS agrees with the AO’s recommendation that the hospice meets applicable requirements, CMS will send the hospice a provider agreement, and, once the agreement is signed, notify the hospice of its effective date.  See 42 C.F.R. § 489.11.

A hospice’s Medicare provider agreement based on deemed status takes effect on the “date of the accreditation decision” “if on that date [the hospice] meets all applicable Federal requirements . . . .”  42 C.F.R. § 489.13(b).  “However, the effective date of the agreement . . . may not be earlier than the latest of the dates on which CMS determines that each applicable Federal requirement is met.”  Id.  Compliance with “applicable Medicare health and safety standards, such as the applicable conditions of participation,” id. § 483.13(b)(1)(3), would be one such requirement that must be met.  In the 2010 Federal Register preamble discussing, inter alia, amendments to the effective date provisions in section 489.13, CMS emphasized the importance of compliance with all applicable requirements before permitting enrollment and participation in Medicare.  See 75 Fed. Reg. 50,042, 50,401 (Aug. 16, 2010).³

As relevant here, if, on the date the survey is completed, the hospice failed to meet one or more of the applicable health and safety standards, then the effective date of the hospice’s provider agreement is determined in accordance with 42 C.F.R. § 489.13(c)(2).  (We will discuss the specific provisions of section 489.13(c)(2) later, in our analysis.)

CMS’s determination on the effective date of a Medicare provider agreement is an “initial determination” subject to appeal and review in accordance with the procedural regulations in 42 C.F.R. Part 498.  42 C.F.R. § 498.3(b)(15).

Case Background

Petitioner, doing business in Minnesota as Moments Hospice, sought to enroll in Medicare as a hospice provider through survey and accreditation by CHAP.  ALJ Decision at 4; CMS Ex. 1, at 1.  CHAP surveyed Petitioner’s facility from September 6 to September 8, 2017.  CMS Ex. 1, at 1; CMS Ex. 2.

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CHAP determined that Petitioner did not meet multiple standard-level requirements.  ALJ Decision at 4; CMS Ex. 2, at 2.  One standard Petitioner did not meet, which is the focus of disagreement between Petitioner and CMS, and thus the main subject of the ALJ’s analysis, is that in 42 C.F.R. § 418.112(f).⁴  See ALJ Decision at 4.

The regulations in 42 C.F.R. § 418.112 set out the condition of participation for hospices that provide care to residents of a “SNF/NF” (skilled nursing facilities/nursing facilities) or “ICF/IID” (intermediate care facility for individuals with intellectual disabilities).  Section 418.112(f), captioned “Standard:  Orientation and training of staff,” states:

Hospice staff must assure orientation of SNF/NF or ICF/IID staff furnishing care to hospice patients in the hospice philosophy, including hospice policies and procedures regarding methods of comfort, pain control, symptom management, as well as principles about death and dying, individual responses to death, patient rights, appropriate forms, and record keeping requirements.

42 C.F.R. § 418.112(f).⁵

According to CHAP, Petitioner did not meet the standard in section 418.112(f) because, “[p]er [Petitioner’s] Administrator, [Petitioner] does not have documented evidence that the hospice staff provided orientation to SNF staff furnishing care to its hospice patients.”  CMS Ex. 3, at 3-4.  CHAP also noted, “The Administrator indicated that the hospice RN [registered nurse] provided education to the SNF staff while hospice patients were being cared for[;] however, there was no documentation that the required education was provided.”  Id. at 4.

Petitioner submitted a plan of correction (POC) to CHAP.  CMS Ex. 3; P. Ex. 7, 9 (Petitioner’s administrator’s attestation that Petitioner submitted its POC on September 20, 2017).  On the standard in section 418.112(f), Petitioner stated:

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Orientation and education will be provided to all staff furnishing care to hospice patients who reside in a SNF/NF or ICF/MR facility at the time [Petitioner] executes the contract with the facility.  Orientation and education will include the following topics . . . .  Understanding of the requirements for [Petitioner] to provide this orientation and training will be signed by the Administrator or his/her designee and will be filed as an Orientation and Education Addendum with the executed facility contract.  Sign-in sheets will be kept to document attendance when the Orientation and Education is provided at each facility and filed with each executed facility contracts.

CMS Ex. 3, at 4.  Petitioner stated that its “Administrator and/or Director of Clinical Services” would be responsible for implementing the corrective actions, which “will” “be implemented” by September 22, 2017.  Id. at 4-5.

By letter dated October 4, 2017, CHAP informed Petitioner that it accepted the POC effective September 20, 2017, and that September 20, 2017 would be the effective date of CHAP’s “[f]ull accreditation.”  CMS Ex. 1, at 1.  CHAP found Petitioner “to be in compliance with the CHAP Standards of Excellence,” and “recommended Medicare certification” and “[d]eemed [s]tatus.”  Id.  However, CHAP cautioned as follows:

As part of the Medicare certification process, [CMS] Regional Office will make a final determination regarding [Petitioner’s] Medicare certification and the effective date of participation in accordance with regulations at 42 CFR 489.13.  If CMS does not accept CHAP’s recommendation, [Petitioner] will be notified of next steps required.

Id.

CMS did not accept CHAP’s recommendation of certification and deemed status.  Finding the POC unacceptable as to the standard in section 418.112(f), CMS directed CHAP to obtain a new POC from Petitioner.  ALJ Decision at 5.  By email to P.S. (at Moments Hospice) on November 15, 2017, CHAP’s “Vice President, Accreditation” asked Petitioner to revise its POC, stating as follows:

I left you a message and am also sending you an email regarding our follow-up communication with the [CMS] Region V office about the initial certification for Guardian Hospice MN LLC.

I believe the [CMS] Regional Office may have been in contact with you about the citation(s) and the plan of correction.  They did ask for clarifying questions of us toward the end of October and we responded.  I received an

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email from [L.H. of CMS] yesterday indicating that they are not accepting of the plan of correction for the initial site visit as written.  Specifically, “CMS does not feel the current POC addresses the still present deficiency in that they failed to document that the current SNF staff has been trained thereby leaves us to conclude we have no proof that they have in fact been trained.  There is also no clear wording within the POC to document that the current contracts have been revised to require documentation of training.  We are requesting a revised POC that addresses these two issues.”[⁶]  There is no indication of denial of participation in the Medicare program from the [CMS] Regional Office at this point, however they do have final approval, which apparently rests on revising your plan of correction to include the elements mentioned above.

We will be re-releasing the Plan of Correction to you so that you can address these 2 issues [concerning the standard at section 418.112(f)] . . . .

P. Ex. 5, at 1-2.

E.J., Petitioner’s administrator, attested that, on or about November 15, 2017, he spoke with L.H. from CMS who informed him that Petitioner “would need to amend” its POC “to change the way [Petitioner] document[s] training to staff that had already been completed since September 22, 2017.”  P. Ex. 7, 17.  The administrator also wrote that, on or about November 15, 2017, he, too, received the email from CHAP to P.S. (presumably meaning the email of record as P. Ex. 5) “detailing the documentation issues raised by CMS related to training that [Petitioner’s] employees had already received.”  Id. 19.  According to the administrator, “[o]n November 18, 2017, [P.S.] and [he] submitted an updated plan of correction.”  Id. at 20.  Apparently, Petitioner and CHAP communicated about the November 18 POC, because the administrator stated that, “[o]n or about November 18, 2017, I was informed by CHAP that an additional amendment to the plan of correction was necessary.”  Id. 21.  “On or about November 20, 2017, [Petitioner] submitted another plan of correction to CHAP, which was accepted.”  Id. at 2.

The record includes a revised, expanded POC, evidently the one the administrator stated was submitted on or about November 20, 2017.  CMS Ex. 4.  The revised POC details, among other things, the actions Petitioner took and committed to take to address the

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standard-level deficiency at section 418.112(f).  Compare CMS Ex. 3 (initial POC), at 4 and CMS Ex. 4 (revised POC), at 5-8.  Notably, the revised POC stated, in part:

• “All contracts were reviewed for current signature by the SNF representative and the Hospice administrator.  The hospice administrator reviewed the contract requirements with all SNF representatives as of 11/15/17. . . .  A Hospice education information handout was developed by the Administrator on 11/15/17[, which] includes the following . . . .”  CMS Ex. 4, at 6-7.
• “Hospice education will be provided to all active SNF/NF contracted facilities by 12/2/17 and no new patients will be accepted in these facilities until education has been provided.  Orientation and education will be provided to all staff furnishing care to hospice patients who reside in a SNF/NF or ICF/MR facility at the time Hospice executes the contract with the facility. . . .  Hospice education will include the following topics: . . . .”  Id. at 7.

The revised POC also detailed certain actions Petitioner committed to take “[f]or new contracts effective 11/17/17.”  See id.  “The Administrator and/or Director of Clinical Services” “will” be “responsible to implement” the actions by “November 15, 2017.”  Id. at 7-8.

By letter dated November 29, 2017, CHAP informed Petitioner that it accepted the revised POC effective November 20, 2017, and that November 20, 2017 would be the new effective date of “[f]ull accreditation.”  CMS Ex. 5, at 1.  CHAP “recommended Medicare certification” and “[d]eemed [s]tatus,” but again informed Petitioner that CMS may not accept CHAP’s recommendation, and that CMS will make a final determination on certification and the effective date of Petitioner’s participation in accordance with 42 C.F.R. § 489.13.  Id.

CMS determined that the revised POC was acceptable.  By letter dated December 7, 2017, CMS notified Petitioner that the effective date of its enrollment and participation in Medicare was November 20, 2017.  CMS Ex. 6, at 1.

Petitioner requested reconsideration, asserting that, “[t]aking into consideration the reasonableness of [Petitioner’s] reliance upon the guidance of the AO and the unique nature of the dispute between CHAP and CMS, . . . the equitable result” would be to set an effective date of September 20, 2017, or, alternatively, September 26, 2017, which Petitioner said “reflects adding the six days of delay that are attributable to [Petitioner].”  CMS Ex. 7, at 5 (Petitioner’s emphases).

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On February 13, 2018, CMS denied reconsideration, thus upholding its earlier assignment of November 20, 2017 as the effective date.  CMS Ex. 8, at 1.  CMS wrote, in part:

In accordance with 42 CFR § 489.13(c)(2)(i), CMS assigns an effective date of participation as the date that all Federal requirements are met.  Based upon our review of additional documentation, [Petitioner] met all survey requirements as of November 20, 2017.  No early date can be assigned.

Id.

ALJ Proceedings and Decision⁷

Petitioner timely requested a hearing before an ALJ to contest CMS’s determination on the effective date.  ALJ Decision at 3.  Petitioner again asserted that the effective date should be September 20, 2017, or, alternatively, September 26, 2017.  See Request for hearing at 5.

CMS timely filed a combined pre-hearing brief and a motion for summary judgment in its favor (CMS Br.), together with nine exhibits (CMS Exs. 1-9).  ALJ Decision at 3.  Consistent with its position in its reconsidered determination, CMS asserted that, in accordance with 42 C.F.R. § 489.13(c)(2)(i), the effective date is, and must be, November 20, 2017, because Petitioner “was not in compliance with all of the conditions of participation until [it] submitted its revised Plan of Correction, received on November 20, 2017.”  CMS Br. at 2, 5.  CMS stated that, because Petitioner’s initial POC, “received on September 20, 2017,” was “inadequate” and Petitioner “had not yet met all of the conditions of participation” as of that date, September 20, 2017 cannot be the effective date.  Id. at 5.  CMS asked the ALJ to decide for CMS on summary judgment since Petitioner did “not dispute the only material fact in this case—that it was not in compliance with all conditions of participation until it submitted its revised plan of correction to CHAP, effective November 20, 2017.”  Id. at 7.  CMS’s exhibits did not include an affidavit or declaration of any witness offered as written direct testimony.  ALJ Decision at 3.

Petitioner timely filed a combined pre-hearing brief and opposition to CMS’s motion for summary judgment (P. Br.).  ALJ Decision at 3.  Petitioner urged the ALJ to deny CMS’s motion because there exist “genuine issues of material fact” that “mak[e] this matter inappropriate for judgment as a matter of law.”  P. Br. at 6.  Petitioner asserted that it “actually met all applica[ble] conditions for participation . . . as of September 20, 2017” and that setting an effective date later than September 20, 2017 “would be inequitable and improper – under the facts and under the law.”  Id. at 2.  Petitioner submitted seven

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exhibits (P. Exs. 1-7), one of which was the “Witness Statement” of Petitioner’s administrator, signed on August 27, 2018 (P. Ex. 7).  ALJ Decision at 3.⁸

The ALJ admitted all exhibits, as submitted, in the absence of any objection to them.  Id.  CMS did not request to cross-examine the administrator—the only witness whose written direct testimony was submitted to the ALJ.  Id. at 3-4.  Accordingly, the ALJ determined that a hearing to permit cross-examination was not necessary, and issued a decision based on the parties’ written submissions.  Id. at 4 (“I issue this decision based on the written record because an evidentiary hearing in this case is not necessary.”).

The ALJ concluded that, in accordance with 42 C.F.R. § 489.13(c)(2)(ii)(A), the effective date of Petitioner’s provider agreement and billing privileges is November 20, 2017.  Id. at 1, 7-9, 13.  The ALJ considered, but rejected, Petitioner’s arguments, including those the ALJ described as “equitable arguments,” that the effective date of its provider agreement and billing privileges should be September 20, 2017.  Id. at 9-13.

Standard of Review

In appeals under 42 C.F.R. Part 498, such as this one, the Board reviews disputed factual issues to determine whether the ALJ’s decision is supported by substantial evidence in the record as a whole, and reviews disputed issues of law to determine whether the ALJ decision is erroneous.  See Guidelines – Appellate Review of Decisions of Administrative Law Judges Affecting a Provider’s or Supplier’s Enrollment in the Medicare Program (Guidelines), “Completion of the Review Process,” (c).⁹

Analysis

Before the Board, Petitioner again asserts, essentially, that the effective date of its Medicare provider agreement and billing privileges is or should be September 20, 2017, because it submitted an approvable plan of correction/positive accreditation decision to CHAP by that date, in accordance with 42 C.F.R. § 489.13(c)(3).  See Petitioner’s Request for Review of Administrative Law Judge Decision (RR) at 4 (quoting section

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489.13(c)(3) in full).¹⁰  Petitioner repeatedly asserts that it had in fact complied with all accreditation requirements, including the standard in 42 C.F.R. § 418.112(f), by September 20, 2017, as CHAP determined when it accepted its initial POC.  See, e.g., id. at 3, 4, 5.  Petitioner also asserts that it detrimentally relied on guidance from and representation of CHAP, a CMS-approved AO, in continuing to provide hospice services to Medicare beneficiaries from September 20 through November 19, 2017 (the day before the assigned effective date) and, accordingly, upholding an effective date of November 20, 2017 would unjustly enrich CMS by the value of two months of services for which it would not be paid.  Id. at 2, 8-9.  Petitioner asks the Board to “revers[e]” the ALJ Decision and “adjust[ ]” the “certification date” to September 20, 2017.  Id. at 11.

Petitioner’s arguments first call for a clarification on the specific provision under 42 C.F.R. § 489.13(c) that governs the effective date in this case.  As we explain in section I of our analysis below, section 489.13(c)(3) on which Petitioner relied before the ALJ, and again seeks to rely, does not govern the determination of the effective date here.  Moreover, section 489.13(c)(2)(i), which CMS cited in its reconsidered determination and in its brief to the ALJ, does not apply here.  We conclude that the ALJ correctly applied section 489.13(c)(2)(ii)(A) to determine the effective date of Petitioner’s Medicare provider agreement and billing privileges.

Essentially, Petitioner seeks an earlier effective date (September 20, 2017) based on CHAP’s recommendation for certification and deemed status upon CHAP’s acceptance of Petitioner’s initial POC.  Underlying the arguments urging the assignment of an earlier effective date is the apparent assumption, or suggestion, that the effective date may be based on an AO’s acceptance of a POC even where CMS rejects the POC and the AO’s recommendation for certification, or otherwise determines that the prospective provider did not meet all applicable participation requirements.  In section II of our analysis, we make clear that the regulations expressly confer on CMS, not an AO, the authority to determine whether a prospective provider met the participation requirements.

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In section III of our analysis, we determine that the ALJ correctly applied section 489.13(c)(2)(ii)(A) to the facts of this case to determine that the effective date is, and must be, November 20, 2017, and no earlier.

Lastly, in section IV of our analysis, we explain why we reject, as the ALJ did, Petitioner’s arguments that essentially amount to “equitable arguments.”  See ALJ Decision at 12-13.¹¹

I. The ALJ correctly determined that 42 C.F.R. § 489.13(c)(2)(ii)(A) governs the determination of the effective date of Petitioner’s Medicare provider agreement and billing privileges.

Section 489.13 is captioned “Effective date of agreement or approval.”  As relevant here, the effective date of a hospice’s Medicare provider agreement is determined in accordance with section 489.13(c)(2), which states as follows:

(c) All health and safety standards are not met on the date of survey.  If, on the date the survey is completed, the provider or supplier has failed to meet any one of the applicable health and safety standards, the following rules apply for determining the effective date of the provider agreement or supplier approval, assuming that no other Federal requirements remain to be satisfied.  However, if other Federal requirements remain to be satisfied, notwithstanding the provisions of paragraphs (c)(1) through (c)(3) of this section, the effective date of the agreement or approval may not be earlier than the latest of the dates on which CMS determines that each applicable Federal requirement is met.

*  *  *  *

(2) For an agreement with, or an approval of, any other provider or supplier, (except those specified in paragraph (a)(2) of this section),¹² the effective date is the earlier of the following:

(i) The date on which the provider or supplier meets all applicable conditions of participation, conditions for coverage, or conditions for

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certification; or, if applicable, the date of a CMS-approved accreditation organization program’s positive accreditation decision, issued after the accreditation organization has determined that the provider or supplier meets all applicable conditions.

(ii) The date on which a provider or supplier is found to meet all conditions of participation, conditions for coverage, or conditions for certification, but has lower-level deficiencies, and—

(A) CMS or the State survey agency receives an acceptable plan of correction for the lower-level deficiencies (the date of receipt is the effective date regardless of when the plan of correction is approved); or, if applicable, a CMS–approved accreditation organization program issues a positive accreditation decision after it receives an acceptable plan of correction for the lower-level deficiencies; or

(B) CMS receives an approvable waiver request (the date of receipt is the effective date regardless of when CMS approves the waiver request).

42 C.F.R. § 489.13(c)(2) (emphasis added).¹³

CHAP found, and CMS agreed, that Petitioner did not meet multiple standards (under various conditions of participation) in 42 C.F.R. §§ 418.54(c)(7), 418.76(c)(1), 418.76(h)(1)(i), and 418.112(f), that is, Petitioner had lower-level deficiencies.  ALJ Decision at 3 (“CHAP found deficiencies during the survey.”) (citing CMS Ex. 2, at 2), 4 (“CHAP . . . determined that Petitioner did not meet several standards of participation for hospice programs.”) (citing CMS Ex. 2, at 2).  Petitioner does not dispute that CHAP found lower-level deficiencies.  See RR at 4 (“There is no dispute that surveyors identified issues during the September [2017] Survey . . . .”).  Accordingly, Petitioner did not in fact meet all health and safety requirements for participation and we therefore must look to 42 C.F.R. § 489.13(c)(2)(ii).  Section 489.13(c)(2)(i), which CMS cited in its reconsidered determination and in its brief to the ALJ as the governing provision (see CMS Ex. 8, at 1; CMS Br. at 2), is not implicated here.  See Ridgeview Hosp., DAB No. 2593, at 8 (2014) (“section 489.13(c)(2)(i) [applies] where a provider is found to meet all conditions of participation and to have no lower-level deficiencies”); Oak Lawn Endoscopy, DAB No. 1952, at 15 (2004) (stating that section 489.13(c)(2)(i) “must be read to mean the absence of any deficiencies (even ‘lower-level’ deficiencies)”).

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The ALJ correctly looked to section 489.13(c)(2)(ii).  The ALJ stated:

The [Board] has explained that “section 489.13(c)(2)(i) must be read to apply where a provider is found to meet all conditions of participation and to have no lower-level deficiencies.”  Ridgeview Hosp., DAB No. 2593 at 8 (2014) (emphasis in original) (citing Oak Lawn Endoscopy, DAB No. 1952 (2004)).  Moreover, for a prospective accredited provider, the second clause of 42 C.F.R. § 489.13(c)(2)(ii) (i.e., “the date of a CMS-approved accreditation organization program’s positive accreditation decision, issued after the accreditation organization has determined that the provider or supplier meets all applicable conditions”) applies, not the first clause (i.e., “[t]he date on which the provider or supplier meets all applicable conditions of participation, conditions for coverage, or conditions for certification”).  Id. at 7. . . .  By contrast, where a provider meets the conditions of participation but has lower-level deficiencies, 42 C.F.R. § 489.13(c)(2)(ii) requires the provider to submit an acceptable POC for those deficiencies before its provider agreement goes into effect.  Id. at 10.  As the [Board] put it, the effective date of the provider agreement for a prospective accredited provider that meets the conditions of participation but had lower-level deficiencies “is the date when . . . the provider is in compliance with all applicable conditions of participation but has lower-level deficiencies; the AO [accrediting organization] has received an acceptable plan of correction; and the AO has issued a positive accreditation decision.  Id. (emphasis in original).

ALJ Decision at 8 (footnote omitted); see also id. n.1 (stating that to the extent Petitioner could be understood as arguing that its effective date is the date on which it met all applicable conditions of participation in accordance with the first clause of section 489.13(c)(2)(i), the argument was “misplaced”).  The ALJ also looked specifically to section 489.13(c)(2)(ii)(A) to determine the effective date here.  Id. at 11 (“Petitioner’s effective date must be governed . . . by 42 C.F.R. § 489.13(c)(2)(ii)(A).”).

Before the Board, CMS acknowledges that earlier it mistakenly cited and relied on section 489.13(c)(2)(i)¹⁴ and that section 489.13(c)(2)(ii) applies here.  See CMS’s

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Response to Petitioner’s Request for Review (CMS Response) at 3 n.1.¹⁵  In its reply brief (P. Reply), Petitioner does not directly and specifically address CMS’s position that the ALJ correctly looked to section 489.13(c)(2)(ii).

Petitioner, however, relies on section 489.13(c)(3).  Petitioner quoted earlier, and does so again, section 489.13(c)(3) (see P. Br. at 5-6; RR at 4), which provides as follows:

(3) For an agreement with any other provider or an approval of any other supplier (except those specified in paragraph (a)(2) of this section) that is found to meet all conditions of participation, conditions for coverage, or conditions for certification, but has lower-level deficiencies and has submitted both an approvable plan of correction/positive accreditation decision and an approvable waiver request, the effective date is the later of the dates that result when calculated in accordance with paragraph (c)(2)(ii)(A) or (c)(2)(ii)(B) of this section.

42 C.F.R. § 489.13(c)(3).  Presumably, this regulation appeals to Petitioner because it uses the word “approvable” in referring to “plan of correction/positive accreditation decision,” and thus serves Petitioner’s apparent position that its initial POC was an “approvable” POC because Petitioner allegedly complied with all requirements by or around the time it submitted that POC.  See RR at 4 (quoting section 489.13(c)(3) in full and bolding the words “an approvable plan of correction/positive accreditation decision”).

If, in seeking to rely on section 489.13(c)(3), Petitioner is asserting that the ALJ erred in relying on section 489.13(c)(2)(ii)(A), it does not specifically state or explain why it believes the ALJ misapplied a provision not applicable to its case.  Moreover, Petitioner’s reliance on section 489.13(c)(3), emphasizing certain words in it, essentially is a request that we disregard section 489.13(c)’s express language requiring, inter alia, the submission of “an approvable waiver request.”¹⁶  Nowhere in the record do we find any evidence that a waiver request was ever submitted, and Petitioner does not assert otherwise.  Accordingly, we have no basis on which to conclude that section 489.13(c)(3)

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and, as well, section 489.13(c)(2)(ii)(B) (which states that it is applicable when “CMS receives an approvable waiver request”), are even implicated here.  We read the ALJ’s reference to “a hospice program that . . . has not submitted a waiver request” (ALJ Decision at 7) as indicating the ALJ’s recognition that he did not have before him any evidence of the submission of “an approvable waiver request” that possibly could implicate the applicability of section 489.13(c)(3) and section 489.13(c)(2)(ii)(B).  In short, the ALJ correctly looked specifically to section 489.13(c)(2)(ii)(A) here.¹⁷

II. CMS, not an accrediting organization, decides whether a prospective provider met all Medicare participation requirements.

According to Petitioner, since section 1865(a)(1) of the Act permits prospective providers like Petitioner to become accredited by an AO such as CHAP, “it is reasonable . . . to conclude that the [AOs] are knowledgeable with regards to the standards for compliance with Medicare conditions of participation and the means by which such standard[s] must be evidenced.”  RR at 1-2.  Petitioner asserts that the effective date of its Medicare provider agreement and billing privileges is, or should be, September 20, 2017, because CHAP, “CMS’ selected AO,” determined that Petitioner met all applicable conditions of participation for a hospice and issued a “positive accreditation” decision based on Petitioner’s submission of an “approvable plan of correction” (meaning its initial POC) by that date.  See id. at 2, 3-7; P. Reply at 2-5.

Underlying the argument is a faulty assumption that since CMS approved CHAP as an AO to perform certain functions necessary to determine whether a prospective provider qualifies for participation and enrollment (such as survey, accreditation for deemed status), the assignment of an effective date turns on CHAP’s (initial) “positive accreditation” decision.  It is undisputed that CMS declined to accept CHAP’s initial recommendation that was based on the initial POC.  In so doing, CMS rejected the initial POC and determined that the initial POC did not evidence satisfactory remediation of the remaining deficiencies.  Moreover, with respect to Petitioner’s continued reliance on section 489.13(c)(3) language (“an approvable plan of correction/positive accreditation decision”), the issue is not whether a POC was “approvable” to or approved by CHAP; the issue is whether it ultimately was “approvable” to or approved by CMS.

The ALJ correctly recognized that CMS decides whether a prospective provider met participation requirements.  We quote the ALJ Decision:

The [Board’s] reading of [section] 489.13(c)(2)(ii) in Ridgeview Hospital] is consistent with 42 C.F.R. § 488.28(a), which states that “[i]f a provider . . . is found to be deficient in one or more of the standards in the conditions of

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participation . . ., it may participate in, or be covered under, the Medicare program only if the provider . . . has submitted an acceptable plan of correction for achieving compliance within a reasonable period of time acceptable to CMS.”  Furthermore, the [Board’s] reasoning is consistent with regulations that reserve to CMS, not the accrediting organization, the ultimate authority to accept or reject a prospective accredited provider’s POC, determine whether the provider meets applicable Medicare conditions, and set the effective date of the provider agreement where a prospective provider seeks to enroll in Medicare via an accreditation survey.  42 C.F.R. §§ 488.7(a), 489.11; see also Apollo Behavioral Health Hosp., LLC, DAB No. 2561 at 7 (2014).

ALJ Decision at 8.

The ALJ also noted that nowhere in its initial accreditation decision did CHAP state that Petitioner had complied with all conditions of participation; CHAP found standard-level deficiencies, and CMS agreed as to the existence of at least one standard-level deficiency for noncompliance with section 488.112(f).  See id. at 9 (citing CMS Ex. 1, at 1; CMS Ex. 2, at 2).  The ALJ also stated that “even assuming that CHAP, in accepting Petitioner’s POC, implicitly found that Petitioner met all conditions of participation and had no lower-level deficiencies,” by rejecting CHAP’s acceptance of the POC, “CMS supplanted [CHAP’s] finding with its own contrary determination, which it was lawfully allowed to do.”  Id. at 10 (citing 42 C.F.R. § 488.7(a) (our emphasis)).  The ALJ’s reasoning thus underscores the point that CMS is, as the ALJ put it, “the ultimate authority” that decides whether a prospective provider met all conditions of participation and the standards under the conditions of participation.

We agree with the ALJ’s analysis.  CMS, not CHAP or any other AO approved by CMS, is authorized to determine whether a prospective provider is compliant with applicable Medicare requirements to grant the provider “deemed status.”  See 42 C.F.R. §§ 488.1 (defining “Deemed status” in part to mean that “CMS has accepted the [AO’s] recommendation” “for Medicare participation” and “CMS finds that all other participation requirements have been met”); 488.4(a)(1) (stating, in part, that the AO “may recommend that CMS grant deemed status to the provider”), 488.7(a) (“CMS may determine that a provider . . . does not meet the applicable Medicare conditions or requirements on the basis of its own investigation of the accreditation survey or any other information related to the survey.”); see also Final Rule, 80 Fed. Reg. 29,796, 29,817 (2015) (“only CMS has the authority to grant ‘deemed status,’ not the AO”).

Notably, the governing effective date regulation begins with the following language:

[I]f other Federal requirements remain to be satisfied, notwithstanding the provisions of paragraphs (c)(1) through (c)(3) of this section, the effective

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date of the agreement or approval may not be earlier than the latest of the dates on which CMS determines that each applicable Federal requirement is met.

42 C.F.R. § 489.13(c) (emphases added).  This language may be read harmoniously with the regulations cited in the preceding paragraph and section 489.13(c)(2)(ii)(A)’s requirement that the effective date is the date on which “a CMS-approved accreditation organization program issues a positive accreditation decision after it receives an acceptable plan of correction for the lower-level deficiencies.”  By rejecting CHAP’s initial recommendation that was based on CHAP’s acceptance of Petitioner’s initial POC, CMS effectively determined that Petitioner did not in fact meet “each applicable Federal requirement.”  42 C.F.R. § 489.13(c).  No POC “acceptable” to CMS was received until Petitioner revised and resubmitted the POC, which CHAP accepted, and which CMS accepted by assigning an effective date of November 20, 2017, in accordance with CHAP’s second recommendation.¹⁸

III. The ALJ’s determination that the effective date of Petitioner’s Medicare provider agreement and billing privileges is November 20, 2017 is supported by substantial evidence and is free of error; no earlier effective date is permissible.

Petitioner urged the ALJ to determine that the effective date is September 20, 2017, because CHAP found that Petitioner met all applicable conditions of participation and issued a positive accreditation decision effective September 20, 2017.  ALJ Decision at 9 (citing P. Br. at 6-8).  Petitioner also asserted that the issue as to Petitioner’s compliance with the standard-level requirement in section 418.112(f) was not whether Petitioner had conducted the necessary training, because the initial and revised POCs reflected that Petitioner had in fact provided all required training.  Id. (citing P. Br. at 3, 8-9), 10.  According to Petitioner, CMS and CHAP merely disagreed about how Petitioner was supposed to document the corrective actions already taken.  Id. at 9 (citing P. Br. at 8-9).

The ALJ rejected these arguments.  The ALJ reasoned that the effective date cannot be based on CHAP’s initial recommended accreditation effective September 20, 2017 because in its initial determination, CHAP did not find that Petitioner had complied with

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all conditions of participation and had no lower-level deficiencies, and CMS rejected the initial POC and “supplanted” CHAP’s initial determination “with its own contrary determination.”  See ALJ Decision at 9-10.  The ALJ further determined that “Petitioner undisputedly did not meet [section 418.112(f)’s standard] at the time of the accreditation survey” or by September 20, 2017.  See id. at 6, 10.  In so determining, the ALJ noted the differences between the initial POC and the revised POC, which “greatly expanded the corrective actions [Petitioner] would take to correct its failure to meet the standard at 42 C.F.R. 418.112(f).”  Id. at 5.  The ALJ stated:

[O]ne of the new corrective actions Petitioner added was that “[h]ospice education will be provided to all active SNF/NF contracted facilities by 12/2/17 and no new patients will be accepted in these facilities until education has been provided.”  CMS Ex. 4 at 7.

Consistent with this corrective action is a document related to a pre-existing contract between Petitioner and a SNF, labeled “Certification of Training and Orientation of Skilled Nursing Facility [SNF] Staff to Hospice,” which the SNF’s director or nursing (DON) signed November 29, 2017.  P. Ex. 2 at 32.  That document states that the SNF “has elected to integrate the training and orientation requirements of Hospice into the routine training and orientation of their staff.”  Id.  It also describes the elements of hospice training, and the DON verified that these elements were included “in the training and orientation of the staff” at the SNF.  Id.

The clear inference to be drawn from the amended POC and SNF certification of training document is that hospice education and orientation had not yet been provided to all SNF staff prior to the submission of the amended POC on November 15, 2017, and would require time to complete (by December 2, 2017).  Otherwise, Petitioner would have no reason to refuse to accept new patients in those facilities pending SNF/NF staff education.  The declaration from Petitioner’s administrator is not consistent with this inference; he does not assert that any particular training occurred on any particular date, making only a vague statement that CMS told him Petitioner “would need to amend their [POC] to change the way [it] document[ed] training to staff that had already been completed since September 22, 2017.”  P. Ex. 7 at 2 ¶ 17.  This statement is vague because it does not specify which “staff” had received “training,” what “training” they had received, or when precisely that training occurred.  Further, saying that the training “had already been completed since September 22, 2017,” suggests that the unspecified training to unspecified staff occurred after

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September 22, 2017, but before November 15, 2017,[¹⁹] but even that is not entirely clear.

Petitioner offered no other evidence that it completed hospice training and orientation to the contracted SNF’s staff before December 2, 2017 [the date by which Petitioner stated it would provide “[h]ospice education to all active SNF/NF contracted facilities,” CMS Ex. 4, at 6-7]; consequently, I find it more likely than not that Petitioner did not in fact provide hospice training and orientation to all of the contracted SNF’s staff prior to that date.

Id. at 6.

The ALJ also stated:

Petitioner claimed in its initial POC that it would, among other things, provide orientation and education on the required topics “to all staff furnishing care to hospice patients who reside in a SNF/NF or ICF/[IID] at the time [Petitioner] executes the contract with the facility.”  CMS Ex. 3 at 4; P. Ex. 3 at 7.  This language does not indicate what Petitioner would do to educate staff at any SNF/NF or ICF/IID with which it already had a contract.  Nor does this language explain why Petitioner would not educate all SNF/NF or ICF/IID staff who might someday furnish care to hospice patients residing in the SNF/NF or ICF/IID, rather than only those who were in fact furnishing such care.  Similarly, no provision is made in the initial POC for assuring that new SNF/NF or ICF/IID employees who began to provide care to hospice patients would obtain required training and orientation.  Further, even assuming that Petitioner was claiming in its initial POC that it would provide the same listed orientation and education to all staff at any SNF/NF or ICF/IID with which it had a pre-existing contract (an inference I do not draw because it is not supported by the POC’s language), I have found it more likely than not that Petitioner did not complete such orientation and education until December 2, 2017.  Therefore, Petitioner did not correct its noncompliance with 42 C.F.R. § 418.112(f) until, at the earliest, December 2, 2017.  Consequently, September 20, 2017, is not the date that CHAP issued a positive accreditation after it (or CMS) determined that Petitioner met all conditions of participation and had no lower-level deficiencies.

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In fact, there is no date on which CHAP issued a positive accreditation decision after determining Petitioner met all conditions of participation and had no lower-level deficiencies. . . . [B]oth the initial (September 20, 2017) and revised (November 20, 2017) positive accreditation dates occurred before Petitioner corrected its noncompliance with 42 C.F.R. § 418.112(f).

Id. at 10-11; see also id. 11-12 (explaining the ALJ’s rationale that “November 20, 2017, is the corrective effective date” in accordance with section 489.13(c)(2)(ii)(A), based on CMS’s acceptance of the revised POC).

Petitioner continues to insist that the effective date should be September 20, 2017 because it met all conditions of participation and accordingly CHAP issued a “positive accreditation” decision based on its submission of an “approvable plan of correction” before or by September 20, 2017.  See id. at 2, 3-7; P. Reply at 2-5.  It avers that both POCs “reflect that [it] had provided all of the requisite training when certification was recommended on September 20, 2017” and thus “[t]he question of actual compliance . . . was never in question.”  RR at 3, 5; see also id. at 4 (continuing to rely on section 489.13(c) to assert that it submitted “an approvable plan of correction/positive accreditation decision”).  Petitioner also continues to insist that the assignment of an effective date later than September 20, 2017 is not due to any failing on its part, but due to the “internal” “disagreement” between CMS and CHAP about how to document correction of the section 418.112(f) deficiency that Petitioner already had completed.  Id. at 2-3, 5, 7 (“How the training is documented is not a condition of participation.”).  Petitioner thus characterizes CHAP’s request for a revised POC on CMS’s direction as merely a matter of “communication between” CMS and CHAP about how to document “training that had already occurred.”  Id. at 2, 3, 5, 7-8 (asserting that “the conflict” between CMS and CHAP “was akin to the fact that [CHAP] had accepted a certification, where [CMS] wanted a verification,” which amounted to “a question of” “unpublished administrative preferences”).  Petitioner thus argues that CMS’s direction to CHAP to have Petitioner revise its POC did not involve remediation of any uncorrected deficiency; it involved only how to document the corrective actions already taken.

“[U]nder the substantial evidence standard applicable to findings of fact by an ALJ (or other trier-of-fact), the Board does not make credibility findings, re-weigh the evidence, or substitute its evaluation of the evidence for that of the ALJ.”  E & I Med. Supply Servs., Inc., DAB No. 2363, at 9 (2011).  Rather, the Board will “defer to the ALJ’s determinations of the credibility accorded to witness testimony and of the weight given to evidence, absent a compelling reason to do otherwise.”  Adel A. Kallini, MD, DAB No. 3021, at 11 (2020).

We reject Petitioner’s arguments and defer to the ALJ’s sound analysis and reasoning.  First, we reject, as the ALJ evidently did, Petitioner’s attempt to characterize the circumstances surrounding CMS’s request for revision of the initial POC as merely a

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matter of communication between CMS and CHAP.  CMS did not permit Petitioner to participate until “after . . . [CHAP] receive[d] an acceptable plan of correction for the lower-level deficiencies.”  42 C.F.R. § 489.13(c)(2)(ii)(A).  No POC that was acceptable to and accepted by CMS was before CMS on or before September 20, 2017 because CMS rejected the initial POC.  Only after CHAP recommended accreditation with an effective date of November 20, 2017 based on the substantially and substantively revised POC did CMS determine that Petitioner may participate effective November 20, 2017.²⁰  In short, CMS decided that Petitioner was not eligible to participate before November 20, 2017, which can hardly be characterized as merely expressing “unpublished administrative preferences.”  RR at 8.

Furthermore, the ALJ’s factual finding that Petitioner did not in fact complete the training before the assigned effective date is supported by substantial evidence of record.  We agree with the ALJ’s assessment of the evidence, in particular, the contents of both POCs.  Of note, the revised POC indicates that Petitioner took certain actions after September 20, 2017.  They include the administrator’s review of SNF contract requirements “as of 11/15/17,” other actions Petitioner would take “[f]or new contracts effective 11/17/17,” and a commitment to provide “[h]ospice education to all active SNF/NF contracted facilities by 12/2/17[.]”  CMS Ex. 4, at 6-7.  Additionally, the use of future verb tense in a number of instances in the revised POC (together with references to future dates) supports an inference that Petitioner committed to take certain actions, not that Petitioner was merely memorializing or discussing in more detail compliance actions taken earlier.  For instance, the revised POC’s language concerning “orientation and education” to be provided to staff who will care for patients living in, for instance, SNFs and NFs, “at the time” Petitioner contracts with the facilities (id. at 7) is not reasonably understood as meaning that Petitioner had in fact provided such “orientation and education” to staff that served patients under existing contracts.  Rather, the language is reasonably read as conveying that Petitioner was committing to provide “orientation and education” going forward, with respect to new contracts.  Moreover, Petitioner indicated that its “Administrator and/or Director of Clinical Services” “will” be “responsible to implement” certain actions by “November 15, 2017” (id. at 7-8), which is reasonably read to mean that such actions had not been completed earlier, as alleged.

Petitioner offers no compelling reason to disturb the ALJ’s assessment, with which we agree, as it is supported by substantial evidence of record.  Petitioner does attempt to challenge the ALJ’s sound assessment by relying on its administrator’s statements.  Petitioner asserts that the ALJ “completely ignore[d] key parts of the sworn statement of Petitioner’s administrator . . . who stated that all training was completed as of September 22, 2017, just two days after Petitioner had submitted its POC to CHAP.”  P. Reply at 3

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(citing P. Ex. 7 9, 17).  Petitioner argues that the ALJ Decision “misstates the evidence” as it “incorrectly states that there is no clear evidence when the training occurred,” and that its administrator “submitted an uncontested verified statement that the training in fact had occurred by September 20, 2017.”  RR at 5.

Petitioner is less than clear and consistent in claiming simultaneously that it completed all requisite training “by September 20” and “as of September 22.”  The administrator’s reference to staff training that Petitioner supposedly “completed since September 22, 2017” (P. Ex. 7 17) is not clear and reasonably could be understood to mean that not all training was in fact completed on or before September 20, 2017.  That aside, we disagree that the ALJ ignored or misconstrued parts of the administrator’s statements.  The ALJ considered the administrator’s statements, along with other evidence, and explained why he found the administrator’s statements less than consistent with other evidence or at times vague.  We read the ALJ’s analysis to mean the ALJ found the administrator’s statements less credible and thus warranting less weight.²¹

Presumably, if Petitioner had in fact provided requisite training earlier, under then-existing contracts, it would have documentation of such training that it could have offered to the ALJ, which the ALJ could have considered together with the administrator’s statements.  But the ALJ found none in the record; nor do we.  Other than relying on its administrator’s statements, Petitioner does not identify any record evidence that shows that Petitioner in fact completed training or other remedial actions to come into compliance with all participation requirements earlier, as alleged.  The assertion that the ALJ disregarded the administrator’s “uncontested verified statement that the training in fact had occurred by September 20, 2017” amounts to an untenable proposition that the ALJ must have simply accepted the administrator’s statement as true regardless of other evidence (Petitioner’s own POCs) that is less than consistent with the administrator’s statement and in the absence of proof of completion of training, as alleged.  Moreover, the attempt to establish, again through the administrator’s statements, that the actions Petitioner took in revising its POC were not actually substantive but were only documentation of remediation already completed in September 2017 (see P. Reply at 3;

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P. Ex. 7 23) fails.  As the ALJ and we discussed, a comparison of the language in the initial and revised POCs plainly show substantial and substantive changes to the initial POC; they do not support a conclusion that the revised POC merely memorialized actions already taken.  In short, Petitioner identifies no ALJ error in his assessment of the full record evidence and offers no compelling reason why we should not defer to that sound assessment.

In sum, the ALJ correctly determined that the effective date of Petitioner’s provider agreement and billing privileges is November 20, 2017—the date on which CHAP issued a positive accreditation decision after receiving a POC that was acceptable to, and accepted by, CMS.

IV. The ALJ did not err in rejecting Petitioner’s remaining arguments the ALJ appropriately characterized as “equitable arguments.”

A. Claim of Detrimental Reliance on Guidance from CHAP

Petitioner asserts that it detrimentally relied on CHAP’s assurances that CMS would approve its Medicare enrollment with an effective date of September 20, 2017, and, due to its reliance, it should be entitled to the benefit of that effective date and to reimbursement for services provided starting on that date.  See RR at 8-9.  Petitioner relies on its administrator’s statement that, on or around September 27, 2017, he asked J.L. (CHAP) whether Petitioner “could provide services to Medicare patients and seek reimbursement,” and J.L. responded that Petitioner “could proceed with business as usual.”  P. Ex. 7 11; RR at 9; P. Reply at 3.  According to the administrator, J.L. stated that the “effective accreditation date would be September 20, 2017” and that “CMS and CHAP work hand-in-hand and that it was normal that a response letter was not yet received.”  P. Ex. 7 11; see also id. 12-13 (administrator’s additional attestations that in early October 2017 he communicated with CHAP, which informed him that “it was standard to discharge and re-admit all Medicare eligible patients once [the] accreditation was awarded,” and that CHAP’s October 4, 2017 letter “confirmed” CHAP’s “previous guidance . . . over the phone . . .  that [Petitioner’s] effective enrollment date would be September 20, 2017”).

Petitioner raised a similar argument before the ALJ.  The ALJ stated:

Petitioner . . . argues that it reasonably relied, to its detriment, on guidance from CHAP that it would receive a September 20, 2017 effective date when providing care on and after that date, and, due to its reliance, it should be entitled to the benefit of that effective date (and to reimbursement of the care so provided).  In support of this argument, Petitioner points to the declaration of its administrator, who asserts that he asked a CHAP employee “whether [Petitioner] could provide services to Medicare patients

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and seek reimbursement,” and the CHAP employee “told [him] that [Petitioner] could proceed with business as usual.”  P. Ex. 7 at 2 11.  Petitioner also relies on guidance in the Medicare Claims Processing Manual (MCPM), which, according to Petitioner, “outlines in another context the idea that, when acts or omissions that might otherwise yield a penalty are a result of erroneous guidance from Medicare or one of its contractors – that the imposition of penalties would be inappropriate, assuming certain conditions are met.”  P. Br. at 10.  Petitioner lists the conditions that must be met in such circumstances, which include that the guidance on which the provider relied “must have been erroneous,” “issued by the secretary or a contractor,” and “in writing.”  In other words, Petitioner argues that I should exercise equitable discretion to grant it a September 20, 2017 effective date and equitably estop CMS from enforcing the November 20, 2017 effective date.

ALJ Decision at 12.  The ALJ thus construed Petitioner’s arguments as raising the question of whether equitable estoppel may lie against CMS, allegedly based on its AO’s “guidance” to Petitioner.²²

The ALJ rejected Petitioner’s “equitable arguments” as “lack[ing] merit” and “not justify[ing] setting an earlier effective date than that provided by the regulations.”  ALJ Decision at 12.  The ALJ reasoned as follows:

This case does not involve imposition of a penalty against Petitioner, and the MCPM’s guidance on imposing penalties is directed at Medicare contractors, who have discretionary authority to waive penalties that has no parallel in ALJ proceedings.  In any case, the MCPM’s guidance is inapplicable to the facts of this case.  The guidance on which Petitioner claims to have relied was from CHAP, which is not a governmental entity or even a contractor for the government.  Further, even assuming CHAP has the same status as a governmental contractor, the allegedly erroneous guidance provided by CHAP was oral guidance; CHAP’s written guidance was entirely accurate, regardless of any oral guidance provided over the phone by a CHAP employee.  In both of its accreditation decisions, CHAP cautioned Petitioner, correctly, that “CMS will make a final determination of [Petitioner’s] Medicare certification and . . . effective date of participation . . . .”  CMS Ex. 1 at 1; CMS Ex. 5 at 1.  Moreover, even were

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I to credit Petitioner’s administrator’s statement about the guidance he claims to have received from a CHAP employee, that guidance clearly contradicts federal regulations that reserve to CMS, not CHAP or any other AO, the final authority to determine, based on an accreditation survey, whether a provider is compliant with Medicare requirements.  42 C.F.R §§ 488.7(a), 489.11; see also Apollo Behavioral Health Hosp., LLC, DAB No. 2561 at 7.  Petitioner could not reasonably rely on oral guidance from CHAP that contradicts these regulations.

Id. at 12-13.  The ALJ went on to state:

Even if conduct by a CHAP employee could somehow be imputed to the government, Petitioner has fallen far short of showing that the oral guidance that a CHAP employee allegedly provided to its administrator was motivated by malign intent.  I find it more likely that the CHAP employee mistakenly—though perhaps reasonably, given her reported statement to Petitioner’s administrator that CMS’s request for an amended POC “almost never happens and . . . was the result of bad timing”—believed that a positive accreditation decision entailed automatic enrollment in Medicare effective on the same date as the positive accreditation date.  These are insufficient grounds to grant equitable relief in this case.

Id. at 13.

Despite the ALJ’s statement that “[t]hese are insufficient grounds to grant equitable relief in this case” (id.), we read the ALJ’s rationale as a whole as meaning that the ALJ determined that he may not upset CMS’s assignment of an effective date in accordance with the regulations on equity grounds.  As the ALJ also stated, “the [Board] has held that neither ALJs nor the [Board] are ‘authorized to provide equitable relief by reimbursing or enrolling a [provider] who does not meet statutory or regulatory requirements.’”  Id. (quoting US Ultrasound, DAB No. 2302, at 8 (2020)).

The ALJ correctly determined that he had no authority to sit in equity.  Nor does the Board.  See, e.g., Cent. Kansas Cancer Inst., DAB No. 2749, at 10 (2016) (“The Board . . . is bound by the regulations, and may not choose to overturn the agency’s lawful use of its regulatory authority based on principles of equity.”); Gaurav Lakhanpal, MD, DAB No. 2951, at 7 (2019) (The Board has “repeatedly held that it, and ALJs, are bound by the applicable regulations and cannot alter an effective date based on principles of equity.”); Howard M. Sokoloff, DPM, MS, Inc., DAB No. 2972, at 9 (2019) (in upholding the ALJ’s decision in which Petitioner disputed the effective date of reactivation of billing privileges, stating that “the Board has no authority to provide any equitable relief”), petition to reopen denied, Ruling No. 2020-2 (Nov. 1, 2019).

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Furthermore, the ALJ also correctly stated that a provider cannot seek to equitably estop CMS from denying reimbursement for services furnished without establishing affirmative misconduct by CMS.  See ALJ Decision at 13.  The Board has made clear that the government cannot be estopped from enforcing valid law or regulations based on alleged misrepresentation of its employees or agents absent, at minimum, evidence that they engaged in affirmative conduct, such that there was factual misrepresentation by the government, reasonable reliance on that misrepresentation by the party seeking estoppel, and harm to that party resulting from reliance.  See, e.g., Pacific Islander Council of Leaders, DAB No. 2091, at 12 (2007); Gregory J. Frazer, Au.D., Ph.D., DAB No. 3038, at 12 (2021) (citing Southlake Emergency Care Ctr., DAB No. 2402, at 8 (2011) (citations omitted)); see also Office of Personnel Mgmt. v. Richmond, 496 U.S. 414, 421 (1990); Heckler v. Cmty. Health Servs. of Crawford Cnty., 467 U.S. 51, 63 (1984).

Even assuming for the moment that we could assign an earlier effective date on equity grounds, Petitioner would not be able to prevail on estoppel.  As an initial matter, two obstacles stand in Petitioner’s way.  First, as the ALJ rightly recognized, Petitioner claims to have relied on guidance or advice from CHAP, which is not shown to be a governmental entity, and Petitioner does not assert that CHAP is in fact a governmental entity.²³  Second, Petitioner does not specifically dispute the ALJ’s statement that Petitioner claimed only to have relied to its detriment on oral “guidance” from CHAP.  “[E]stoppel against the government cannot be asserted on the basis of oral advice.”  Linda Silva, P.A., DAB No. 2966, at 8 n.6 (2019); see also FDIC v. Royal Park No. 14, Ltd., 2 F.3d 637, 641 (5th Cir. 1993) (“[E]rroneous oral representations from a government agent, without more, are insufficient to prove the element of reasonable reliance.”) (citing Heckler, 467 U.S. at 65-66)); Wash. State Dept. of Soc. & Health Servs., DAB No. 1561, at 10 (1996) (“[E]rroneous oral advice is inadequate, as a matter of law, to estop the government from enforcing federal law.”).

Petitioner says that it “received both written and verbal guidance from CHAP” that Petitioner met all requirements for “full accreditation” effective September 20, 2017, though it does not specify to what “written” guidance it refers or point to specific record evidence.  RR at 3.  If Petitioner is referring to CHAP’s October 4, 2017 accreditation notice, Petitioner cannot reasonably claim to have relied on it to continue providing (unreimbursed) services before CMS determined Petitioner was eligible to participate effective November 20, 2017, because there CHAP explicitly notified Petitioner that CMS has authority to make the “final determination” whether to accept CHAP’s recommendation for certification.  See CMS Ex. 1, at 1.  The only other record evidence

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of “written” communication from CHAP dated before November 20, 2017 that Petitioner possibly could claim as including “guidance” from CHAP is CHAP’s November 15, 2017 email to Petitioner, in which CHAP relayed that the CMS regional office did not accept the initial POC “as written.”  See P. Ex. 5, at 1; discussion above (quoting the email).  In that email, CHAP indicated that CMS would have “final approval, which apparently rests on revising your plan of correction[.]”  P. Ex. 5, at 1.  Thus, CHAP again conveyed that CMS, not CHAP, would decide whether and when Petitioner met the participation requirements and set an effective date.  Petitioner could not have reasonably understood the written communication from CHAP (that is of record) as meaning that it could continue providing services and as assuring Petitioner that it would be reimbursed for services provided before the effective date CMS assigns.  This aside, importantly, CMS decided to enroll Petitioner as a hospice provider only after Petitioner revised its POC and after CHAP issued its second certification notice; the record does not show any earlier CMS communication on which Petitioner could have reasonably relied to provide services on and after September 20, 2017.

Moreover, “affirmative misconduct” is an essential element of estoppel that Petitioner does not address.  Petitioner never articulated, before the ALJ or the Board, specifically how CHAP’s “guidance” on the accreditation process, relaying CMS’s concerns about the adequacy of Petitioner’s initial POC to Petitioner and asking Petitioner to revise its initial POC at the direction of CMS, rises to the level of affirmative misconduct.  Affirmative misconduct “is something more than failing to provide accurate information or negligently dispensing erroneous advice.”  Silva at 8 n.6 (citing Wash. State Dept. of Soc. & Health Servs., DAB No. 1561, at 10 (1996); Hartford HealthCare at Home, Inc., DAB No. 2787, at 9-10 (2017)).  There is no showing of affirmative misconduct where, as here, Petitioner apparently relied on “guidance” or communication that, at most, “suggest misunderstandings” or “miscommunications.”  Richard Weinberger, M.D., and Barbara Vizy, M.D., DAB No. 2823, at 19 (2017).  Importantly, here, there is no evidence of affirmative misconduct on the part of CMS.

B. Petitioner’s Claim of Unjust Enrichment

Petitioner argues that an effective date of November 20, 2017 would deprive Petitioner of payment for hundreds of thousands of dollars’ worth of hospice services it provided to Medicare beneficiaries from September 20, 2017 through November 19, 2017 (the day before the effective date) and unjustly enrich CMS.  RR at 8-9.  Petitioner says, “CMS was clearly enriched when it received the benefit of its bargain: quality services provided to its beneficiaries at no cost to Medicare.”  Id. at 10; see also id. at 11 (stating that during the 61-day period between September 20 and November 20, 2017, Petitioner provided 1,103 days’ worth of hospice care to Medicare beneficiaries); P. Ex. 6 (Petitioner’s “Hospice Revenue By Level of Care Report” for the period “09/20/2017 To 11/21/2017,” submitted to support this claim); P. Ex. 7 25.  Petitioner argues that “the government” ought not be “[a]llowed . . . to enjoy the benefit of the bargain for which it

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has contracted with [Petitioner] . . . without having to perform its obligations under that agreement[.]”  RR at 8-9.²⁴  Petitioner also repeatedly complains that CMS and CHAP “took” “months . . . to agree on a standard for documentation.”  Id. at 2; id. at 6 (asserting that “[t]he delay” occasioned by the disagreement between CMS and CHAP “should not be the burden of [Petitioner] to bear”), 8 (referring to “an extended bureaucratic debate” concerning a “question of” “unpublished administrative preferences” that “extend[ed] over months”), 9 (referring to “two month delay”).

Petitioner raised earlier, and the ALJ rejected, a similar argument.  See ALJ Decision at 12.  The ALJ stated that the “same reasons” for the ALJ’s rejecting the “detrimental reliance” argument warrant rejection of the “unjust enrichment” argument.  See id. at 13.  The ALJ wrote:

Petitioner cannot credibly claim that CMS unjustly benefited from the unreimbursed care it provided to Medicare beneficiaries prior to November 20, 201[7].  The regulations and CHAP’s written guidance put Petitioner on notice that CMS had the final say on whether Petitioner was in compliance with all Medicare requirements and what effective date to assign to Petitioner’s provider agreement and Medicare billing privileges.  Petitioner may be aggrieved that it provided so much care that will not be reimbursed, but that alone does not render CMS’s actions unjust or inequitable.  So, as a factual matter, the balance of equities in this case would not justify setting an earlier effective date than November 20, 2017.

Id.

We agree with the ALJ that Petitioner cannot credibly claim that CMS unjustly benefited from unreimbursed services.  Again, Petitioner received clear notice, in writing, that CMS makes the final determination on whether Petitioner complied with all applicable requirements and could reject (and did reject) its initial POC as less than satisfactory.  It is not reasonable for Petitioner to have assumed, allegedly on oral “guidance” or assurance from CHAP that Petitioner would be made whole after satisfactory resolution of any outstanding issues or concerns CMS had about whether Petitioner fully complied with all requirements, when it received clear written notice or “guidance” that CMS decides whether Petitioner in fact complied with all requirements before permitting Petitioner to participate in and bill Medicare.

Petitioner’s “unjust enrichment” argument, moreover, appears to assume that any losses Petitioner sustained in terms of the value of its services for the period from September 20, 2017 through and including November 19, 2017 were due to CMS’s statement or action

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(or inaction or allegedly delayed action).  That is not the case.  Petitioner cites no authority for the apparent implication that CMS was somehow obligated to respond or act earlier to minimize for Petitioner any gap in time between September 20 and November 20, 2017; CMS has no such obligation.  There is no evidence that CMS, at any time before it decided to enroll Petitioner, that CMS did or said anything to give Petitioner any reason to believe that Petitioner would eventually be able to claim and receive Medicare reimbursement for all services provided before the effective date assigned in accordance with the applicable regulations.  Nor is there any evidence that CMS stated or did one thing and then later stated or did something different to confuse Petitioner or mislead Petitioner into acting to its detriment.  Borrowing Petitioner’s words (“benefit of the bargain”), CMS did not “contract” with Petitioner to have Petitioner provide hospice services to Medicare beneficiaries before November 20, 2017.

In sum, Petitioner had no assurance or representation in fact, and no reasonable basis on which to conclude or assume, that CMS would pay Petitioner for any services furnished to Medicare beneficiaries before the effective date of its provider agreement.  Claiming that Petitioner should be paid for services it provided before November 20, 2017 is essentially a plea for equitable relief and an impermissible request for payment for services delivered before CMS determined that Petitioner met all applicable Medicare participation requirements.

Conclusion

We affirm the ALJ Decision.

Endnotes

¹ Section 1866 of the Act is codified at 42 U.S.C. § 1395cc.  The current version of the Act can be found at http://www.socialsecurity.gov/OP_Home/ssact/ssact-toc.htm.  Each section of the Act on that website contains a reference to the corresponding United States Code chapter and section.  Cross-reference tables for the Act and the United States Code can be found at https://uscode.house.gov/table3/1935_531.htm and https://www.ssa.gov/OP_Home/comp2/G-APP-H.html.

² As we discuss later, Community Health Accreditation Partner (CHAP) surveyed and accredited Petitioner for participation in Medicare.  CHAP is a CMS-approved AO authorized to survey and accredit prospective hospice providers.  See Proposed Notice, 83 Fed. Reg. 27,992, 27,993 (June 15, 2018) (noting that CHAP’s “term of approval for its hospice accreditation program expires November 20, 2018” and acknowledging CHAP’s application for “continued recognition” as an AO for hospices); Proposed Rule, 86 Fed. Reg. 35,874, 35,877 (July 21, 2021) (identifying CHAP as a CMS-approved AO for hospices).

³ CMS wrote:

[T]he intent of the existing regulations is to require that all applicable Federal requirements, including a determination of whether the enrollment requirements have been satisfied, must be met before a provider agreement or supplier approval may be effective.  Any other reading of the regulations could result in a provider or supplier being permitted to bill the Medicare program for services provided at a time when its compliance with Medicare’s requirements is unknown and possibly deficient. . . .  It would not be consistent with our duty to protect the Medicare Trust Funds from unsupported claims against it to permit payment for services furnished by a health care facility after it has . . . been accredited, but before it has satisfied all other Medicare participation requirements, including enrollment requirements.

75 Fed. Reg. at 50,401.

⁴ CHAP also determined that Petitioner did not meet other standards.  See CMS Ex. 2, at 2.  CHAP determined that Petitioner did not meet the standard in 42 C.F.R. § 418.54(c)(7) concerning the comprehensive assessment of a patient because Petitioner had no documentation that it completed a bereavement assessment at the time of hospice admission or during the provision of hospice care in several instances.  CMS Ex. 3, at 1-2.  As for the standard in 42 C.F.R. § 418.76(c)(1) concerning the evaluation of competency of hospice aides, CHAP determined that Petitioner’s “competency assessment” record for a hospice aide, who was hired months before the assessment, failed to document a registered nurse’s direct observation of the aide providing all required bathing and toileting care to a patient.  Id. at 5-6.  CHAP also determined that Petitioner did not meet the standard concerning the supervision of hospice aides in 42 C.F.R. § 418.76(h)(1)(i) because, in multiple cases, Petitioner had no documentation that a registered nurse conducted supervisory visits, every 14 days, to hospice patients’ homes when aide services were being provided, to assess the aide’s delivery of care.  Id. at 7-8.

⁵ We quote section 418.112(f) that was in effect during CHAP’s survey and determinations, and CMS’s determinations discussed in the background section.

⁶ CHAP’s November 15, 2017 email to Petitioner (P. Ex. 5, at 1-2), which purports to quote CMS (L.H.)’s email to CHAP the prior day, emphasized certain language in L.H.’s email using italics, color (red), and underlining.  Because the record does not include L.H.’s email to CHAP, we do not know whether L.H. emphasized certain language in her email to CHAP or whether CHAP added the emphases in restating L.H.’s email message when communicating with Petitioner.  In any case, we omit the emphases in our quote of CHAP’s November 15, 2017 email to Petitioner.  Importantly, we do not need L.H.’s email to CHAP itself to resolve the dispute here.

⁷ In this section we set out a concise overview of the ALJ proceedings and decision.  We will discuss the ALJ’s findings, conclusions, and analysis in more detail later, in our analysis.

⁸ After the parties completed briefing, the case was transferred from the ALJ to whom this case was initially assigned to the ALJ who issued the decision Petitioner appealed to the Board.  See ALJ Decision at 3.

⁹ The Guidelines are available at:  https://www.hhs.gov/about/agencies/dab/different-appeals-at-dab/appeals-to-board/guidelines/enrollment/index.html?language=en.

¹⁰ Petitioner states, “Given the material issues of fact and law at question in this case, the ALJ decision of finding of summary judgment in favor of CMS is improper.”  RR at 8.  To be clear, although CMS moved for summary judgment in its favor, the ALJ did not issue a decision on summary judgment for CMS based on a determination that there was no dispute as to any material fact and that CMS was entitled to judgment in its favor as a matter of law.  See Pearsall Nursing & Rehab. Ctr. - North, DAB No. 2692, at 5 (2016) (discussing the summary judgment standard).  Since CMS did not seek to cross-examine Petitioner’s administrator, the only witness whose testimony Petitioner offered, in writing (P. Ex. 7), the ALJ determined that a hearing to permit cross-examination was not necessary and decided the case based on the written submissions alone.  The ALJ’s decision based on the written submissions is not equivalent to a decision on summary judgment for CMS, as Petitioner appears to assume.  See ALJ Decision at 3 (captioning section II of the decision to read “Decision on the Written Record”) (bolded in original); id. at 3-4; ALJ’s April 23, 2018 Acknowledgment and Pre-Hearing Order ¶ 5.c (“Deciding a case based on written submissions is not the same as a summary disposition.”).  (The April 23, 2018 order was issued by the ALJ to whom this case was initially assigned.  Nevertheless, we see no indication that the ALJ to whom the case was transferred and who issued the decision gave the parties different or additional instructions about the pre-hearing procedures after the case was transferred.)

¹¹ Because we conclude, as did the ALJ, that, in accordance with 42 C.F.R. § 489.13(c)(2)(ii)(A), the effective date must be, and cannot be any earlier than, November 20, 2017, we need not address Petitioner’s earlier argument that, alternatively, September 26, 2017 ought to be assigned as the effective date, for reasons of equity.  In any event, as we also explain later, we cannot adjust the date on equity grounds, and Petitioner does not now allege that the ALJ failed to address specifically its earlier argument that the effective date should be September 26, 2017.

¹² Section 489.13(a)(2) addresses the effective date of provider agreements for various types of providers and suppliers (to include community mental health centers and laboratories) not at issue here.  Section 489.13(c)(1), which we also omit from our quotation, addresses provider agreements with SNFs, also not at issue here.

¹³ We quote section 489.13(c)(2), as in effect during CHAP’s survey, CHAP’s and CMS’s determinations, and as applied by the ALJ (see ALJ Decision at 7).

¹⁴ The ALJ noted that, in accordance with section 489.13(c)(2), the effective date of a hospice program’s provider agreement will be the “earlier” of the dates under section 489.13(c)(2)(i) and section 489.13(c)(2)(ii) and considered both provisions in some detail, apparently to address CMS’s reliance on section 489.13(c)(2)(i) and to make clear that the ALJ must look to section 489.13(c)(2)(ii) in this case.  See ALJ Decision at 8-9.  The ALJ stated that “analyzing the facts of this case under 42 C.F.R. § 489.13(c)(2)(i) produces no date that could be used as an effective date” here because “there is no date on which CHAP issued a positive accreditation decision after determining Petitioner met all conditions of participation and had no lower-level deficiencies.”  Id. at 10-11.  As noted, initially, CHAP did not determine that Petitioner had complied with all conditions of participation and had no lower-level deficiencies; it found multiple standard-level deficiencies, including the failure to comply with section 418.112(f).  CMS Ex. 1, at 1; CMS Ex. 2, at 2.

¹⁵ Before the ALJ, CMS also claimed that the deficiencies identified on survey were condition-level deficiencies.  ALJ Decision at 11 n.2 (citing CMS Br. at 3, 5, 7).  The ALJ stated that “CMS’s position is at odds with the way the requirements that Petitioner violated are labeled in the regulations,” and noted that they were “all labeled ‘standards’ that fall within conditions in the regulations” and “are not themselves conditions.”  Id.  The ALJ moreover stated that he “need not analyze whether Petitioner’s deficiencies were standard- or condition-level because that analysis would not affect the outcome of this case.”  Id.  We have no reason to disagree with note 2 in the ALJ’s decision, and neither party raises an argument about it.

¹⁶ We cannot simply ignore certain language in the regulation.  We “interpret the language of a regulation in a manner that gives effect to all its terms.”  Rural Metro Corp. of Fla., Inc., DAB No. 2977, at 8 (2019); see also Ridgeview Hosp., DAB No. 2593, at 7 (applying the “fundamental principle of statutory construction, equally applicable to regulatory construction, that every word and every phrase of the text must be given effect so that no word or phrase is rendered superfluous or to have no consequence”).

¹⁷ CMS “now agrees with [the ALJ’s] conclusion that [section] 489.13(c)(2)(ii)(A) dictates [Petitioner’s] effective date.”  CMS Response at 3 n.1.

¹⁸ Petitioner appears to acknowledge CMS’s authority to decide whether a prospective provider met all requirements for certification.  See Request for hearing at 2 (“Moments does not contest that the ultimate decision of whether or not to accept the POC rests with CMS.”).  Yet its argument that the effective date should be September 20, 2017 based on CHAP’s acceptance of its initial POC arguably could be considered a challenge to CMS’s decision to reject the initial POC.  Any such challenge would not be permissible.  “[A] decision by CMS not to accept a provider’s plan of correction does not constitute an initial determination subject to review.”  Apollo Behavioral Health Hosp., L.L.C., DAB No. 2561, at 9 (2014) (citing cases); see also 42 C.F.R. § 498.3(d)(1) (stating that “[t]he finding that a provider . . . determined to be in compliance with the conditions or requirements for participation or for coverage has deficiencies” is not an initial determination subject to review under 42 C.F.R. Part 498 regulations), 498.3(d)(3) (stating that “[t]he refusal to enter into a provider agreement because the prospective provider is unable to give satisfactory assurance of compliance with the requirements of title XVIII of the Act” is not an initial determination subject to review under Part 498 regulations).

¹⁹ We presume the ALJ’s two references to “November 15, 2017” in this paragraph were meant to be to “November 20, 2017.”

²⁰ The “completion of a POC ‘does not per se imply correction of prior deficiencies.’”  Texan Nursing & Rehab. of Amarillo, LLC, DAB No. 2323, at 20 (2010) (quoting Warren N. Barr Pavilion of Ill. Masonic Med. Ctr., DAB No. 1705, at 5 (1999)).  Thus, the fact that Petitioner “completed” its POCs itself does not imply correction, in fact, of all previously identified deficiencies.

²¹ Petitioner repeatedly takes issue with the ALJ’s assessment and weighing of the evidence and, in particular, the ALJ’s apparent determination that the administrator’s statements warranted less weight.  We need not separately address each such instance.  We do note that, at one point, Petitioner says that the ALJ’s “conclusion is baseless and not supported by the record” and “reflects a potential bias against health care providers,” complaining that “[t]he ALJ seems to have made credibility determinations adverse to the Petitioner, despite no reasonable basis for having done so.”  P. Reply at 2-3.  Petitioner merely hints at bias, and we see no foundation for bias.  As for the ALJ’s assessment of the evidence, to include, specifically, the administrator’s statements (and their credibility and weight to be accorded to them), the ALJ did exactly what a trier of fact is supposed to do.  As we explain in the body of our decision, the ALJ’s assessment is supported by substantial evidence of record and therefore we do indeed see a “reasonable basis for” the ALJ’s assessment.  We view Petitioner’s repeated reliance on its administrator’s statements as an unsuccessful attempt to compensate for the gap in its documentary evidence, which does not support the allegation that Petitioner had in fact completed all corrective actions well before November 20, 2017, and that Petitioner revised its initial POC only to document actions it supposedly had taken earlier to satisfy CMS and CHAP.

²² Before the ALJ, Petitioner asserted that “[d]etrimental reliance [is] a form of promissory estoppel,” which “exists when a promise was made and the reliance upon that promise was reasonable and/or foreseeable, leading to the harmed party actually (and reasonably) relying upon the promise, that the reliance was detrimental, and the only way to prevent justice would be to enforce the promise.”  P. Br. at 2, 6.  Petitioner does not now assert that the ALJ failed to address specifically its “promissory estoppel” argument, misunderstood its argument, addressed an argument it did not raise, or otherwise reassert that promissory estoppel ought to be applied.

²³ Petitioner alludes to CHAP’s status as a CMS-approved AO.  See RR at 2 (“CMS’ selected AO”).  However, Petitioner does not specifically assert or cite authority for the apparent implication that CMS’s approval of an AO to carry out certain functions necessary for or appropriate to enrolling providers means that any alleged “guidance” from a CMS-approved AO is “guidance” from CMS for purposes of estoppel.  Accordingly, we need not further discuss this issue.  In any case, as we explain, even assuming for the moment that the “guidance” on which Petitioner claims to have detrimentally relied came directly from CMS, we would still determine that Petitioner has not made its case for detrimental reliance.

²⁴ Petitioner appears to assume that a hospice’s provider agreement with CMS is or is the equivalent of a “contract” for which common law contract principles apply or ought to apply.  We need not delve into that issue to address Petitioner’s “unjust enrichment” argument appropriately and adequately.