Miguel Stubbs, M.D., DAB CR5050 (2018)

DECISION

I sustain the determination of the Centers for Medicare & Medicaid Services (CMS) to revoke the Medicare enrollment and billing privileges of Petitioner, Miguel Stubbs, M.D.

I. Background

CMS moved for summary judgment.  With its motion, CMS filed four supporting exhibits, identified as CMS Ex. 1-CMS Ex. 4.  Petitioner opposed the motion and filed three supporting exhibits, identified as P. Ex. 1-P. Ex. 3.  Petitioner’s exhibits include Petitioner’s declarations.  P. Exs. 1, 2.

It is unnecessary that I decide whether this case satisfies the criteria for summary judgment.  CMS did not request cross-examination of Petitioner.  Consequently, no purpose would be served by convening an in-person hearing.  I decide the case based on the parties’ submissions.  I receive into the record CMS Ex. 1-CMS Ex. 4 and P. Ex. 1-P. Ex. 3.

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II. Issue, Findings of Fact and Conclusions of Law

A. Issue

The issue is whether CMS has the authority to revoke Petitioner’s Medicare enrollment and billing privileges.

B. Findings of Fact and Conclusions of Law

The essential facts of this case are not in dispute.  Petitioner, a physician, submitted or caused to be submitted 29 Medicare reimbursement claims for services allegedly provided by him to 10 Medicare beneficiaries who were dead on the dates when Petitioner claimed to have provided services to them.  CMS Ex. 2 at 1.  For eight of the 10 beneficiaries, Petitioner filed multiple claims alleging to have provided services on dates after they had died.  CMS Ex. 2 at 1, 3, 4.

CMS revoked Petitioner’s Medicare enrollment and billing privileges on the authority of 42 C.F.R. § 424.535(a)(8)(i).  This regulation allows CMS to revoke a supplier’s enrollment and billing privileges if the supplier “submits a claim or claims for services that could not have been furnished to a specific individual on the date of service.”  The regulation specifically applies to instances “[w]here the beneficiary is deceased.” 

On its face, the regulation permits CMS to revoke Medicare enrollment and billing privileges in the circumstance where a supplier submits as few as a single claim for services allegedly provided to a beneficiary who is deceased on the date of the alleged service.  However, CMS has opted to invoke the regulation in the circumstance where a supplier submits “at least three” claims that could not have been provided on the alleged service dates.  73 Fed. Reg. 36,448, 36,455 (June 27, 2008).

Here, Petitioner submitted or caused to be submitted 29 claims for services allegedly provided to beneficiaries who were deceased as of the claimed service dates.  That is more than sufficient basis for CMS to revoke Petitioner’s Medicare enrollment and billing privileges pursuant to 42 C.F.R. § 424.535(a)(8)(i). 

Petitioner does not deny that he submitted or caused to be submitted the reimbursement claims that are at issue.  He contends, however, that these claims were inadvertent errors on his part, or on the part of the individuals or entities who filed claims on his behalf, and he argues that he should not be penalized for mistakes that he insists do not evidence bad faith or fraud on his part.  As support for his argument, Petitioner cites to the Federal Register preamble language of 42 C.F.R. § 424.535(a)(8), which states that revocation would not be effectuated where there are “isolated occurrences or accidental billing

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errors.”  73 Fed. Reg. 36,448, 36,455.  He relies also on the preamble’s language which states that CMS would revoke only where suppliers engage in a “pattern of improper billing.”  Id.

Petitioner argues that the 29 claims at issue diminish greatly in significance when measured against the large number of patients that Petitioner sees in the course of providing care to residents of roughly 18 nursing facilities.  He contends that some of the claims emanated from record-keeping errors by facility staffs that, in at least one instance, erroneously recorded a service that Petitioner provided to a resident as having been provided to a different, deceased, resident on that date.  P. Ex. 1. 

Petitioner’s arguments are not persuasive.  They rest on a mischaracterization of 42 C.F.R. § 424.535(a)(8)(i).  The authority to revoke provided by this regulation does not rest on a finding of fraud or negligence by a supplier.  The regulation plainly allows CMS to revoke Medicare enrollment and billing privileges for any instance in which a supplier files a claim for a beneficiary who is deceased on the alleged service date.  Patrick Brueggeman, D.P.M., DAB No. 2725 at 10-11 (2016); Louis J. Gaefke, D.P.M., DAB No. 2554 at 7 (2013); Howard B. Reife, D.P.M., DAB No. 2527 at 5 (2013).  As a matter of discretion, the Secretary interprets the regulation to apply where there are three or more such claims.  However, once a supplier submits three or more such claims, the regulation conclusively allows CMS to revoke.  Med-Care Diabetic & Medical Supplies, Inc., DAB No. 2764 at 17 (2017). 

The regulation imposes a very heavy burden on suppliers to assure that they do not submit reimbursement claims for services that could not have been provided on the claimed service dates.  The regulation requires strict vigilance by suppliers at least in part because the Medicare program processes millions of reimbursement claims annually.  The program cannot tolerate lax claims submissions because the costs to the program could be enormous in total.  Thus, Medicare holds its suppliers to an extremely strict standard of accuracy.

Also, the facts of this case do not support Petitioner’s protestation that the claims at issue are purely accidental.  Petitioner argues that the fault for causing these claims to be submitted lies elsewhere, with the staffs of those nursing homes whose residents he treated, or with the third-party billing company that filed claims on his behalf.  P. Ex. 1.  However, Petitioner identifies only some of the 29 claims in his brief to which this explanation applies.  Furthermore, assuming Petitioner’s contention to be true, it does not excuse him from submitting these claims.  Petitioner bears responsibility for assuring that his claims are accurate and that they are for services that he actually provided.  He cannot evade responsibility by asserting that third parties are at fault for those claims that he submitted for services that he could not have provided.

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Finally, I am not persuaded by Petitioner’s assertion that the claims at issue are an insignificant fraction of the total number of reimbursement claims that Petitioner submits or causes to be submitted.  CMS did not audit all of Petitioner’s claims nor is it required to do so.  The 29 claims at issue are sufficient in and of themselves to provide CMS with authority to revoke Petitioner’s Medicare participation and billing privileges.  CMS is not required to prove that these claims represent a substantial percentage of the total number of claims that Petitioner submits or causes to be submitted.