Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD
Civil Remedies Division
(PTAN: DR163Z; NPI: 1194033860)
Centers for Medicare & Medicaid Services.
Docket No. C-17-1048
Decision No. CR5100
First Coast Service Options (First Coast), an administrative contractor acting on behalf of the Centers for Medicare & Medicaid Services (CMS), revoked the Medicare enrollment and billing privileges of Petitioner, Amber Maynard, because Petitioner failed to timely provide CMS’s Center for Program Integrity (CPI) access to requested documentation for Medicare beneficiaries. CMS upheld the revocation in a reconsidered determination, and Petitioner requested a hearing to dispute the revocation. For the reasons stated herein, I affirm CMS’s determination revoking Petitioner’s Medicare enrollment and billing privileges.
Petitioner is a physician assistant who was enrolled as a supplier in the Medicare program. CPI began investigating Petitioner after she “was identified as ordering a large number of [durable medical equipment, prosthetics, orthotics, and supplies (DMEPOS)] for Medicare beneficiaries [with whom] she had no prior relationship . . . .” CMS Exhibit (Ex.) 4 at 2. Specifically, CMS was concerned because, from January 2014 to January 2017, Petitioner referred 602 beneficiaries for DMEPOS items; she lacked a prior relationship with 85 percent of those beneficiaries. As a result of these referrals, the Medicare program “paid over $690,000” for DMEPOS supplies provided to those beneficiaries. CMS Ex. 4 at 2.
On January 26, 2017, CPI informed Petitioner that it would be “reviewing Medicare benefits” for a number of Petitioner’s patients “[i]n order to ensure claim(s) are/were processed accurately.” CMS Ex. 3 at 1. CMS provided a list of just 20 patients out of 602 for whom it requested “a copy of . . . [their] complete medical records which should include, Progress Notes, Physician Orders/Prescriptions, Verbal Orders, Plans of Care and Face-to-Face Sheets” dated from January 1, 2015, to the date of the letter. CMS Ex. 3 at 1. CMS required Petitioner to provide the requested documents no later than February 28, 2017. CMS Ex. 3 at 3.
CMS served its request on Petitioner via FedEx at 1314 Oak Street, Melbourne, Florida 32901 (Oak Street address), and sent an additional copy by facsimile.1 CMS Ex. 3 at 1, 4. Petitioner had identified the Oak Street address as her correspondence address dating back to at least 2010. CMS Ex. 9 at 7. An “N. FOREST” signed for the request on Petitioner’s behalf. CMS Ex. 3 at 4.
When CMS did not receive the records by March 16, 2017, it requested that First Coast revoke Petitioner’s Medicare enrollment and billing privileges. CMS Ex. 4 at 1-2. First Coast notified Petitioner, by letter dated March 31, 2017, that it had revoked her Medicare enrollment and billing privileges pursuant to 42 C.F.R. § 424.535(a)(10) based on her failure to provide CMS access to requested documentation involving 20 Medicare beneficiaries. First Coast discussed that even though FedEx had confirmed delivery of the January 26, 2017 records request at Petitioner’s correspondence address, she did not provide all of the requested records. CMS Ex. 2 at 1. Additionally, First Coast informed Petitioner it had established a one-year re-enrollment bar. CMS Ex. 2 at 2. First Coast sent the revocation notice to the Oak Street address. CMS Ex. 2 at 1.
Megan Arrington, an authorized representative, timely requested reconsideration on Petitioner’s behalf, arguing that Petitioner “[n]ever received any request for medical records,” and requesting that First Coast “[forward] the [F]ed[E]x signature page.” CMS Ex. 5 at 1; see CMS Ex. 1 at 1. Ms. Arrington confirmed that the Oak Street address is Petitioner’s correct address. CMS Ex. 5 at 1.
CMS’s Provider Enrollment & Oversight Group issued a reconsidered determination on July 13, 2017, in which it determined that First Coast properly revoked Petitioner’s Medicare enrollment and billing privileges pursuant to 42 C.F.R. §§ 424.535(a)(10) and 424.516(f) because Petitioner “failed to maintain and provide CMS access to the documentation” CMS requested by the February 28, 2017 due date. CMS Ex. 1 at 6. CMS explained that revocation was appropriate pursuant to 42 C.F.R. § 424.535(a)(10), because Petitioner “failed to comply with the maintenance and CMS’s access
requirements specified in [42 C.F.R.] § 424.516(f).” CMS Ex. 1 at 6. Specifically, the hearing officer noted:
Here, on January 26, 2017, CMS requested medical records for 20 beneficiaries for whom Ms. Maynard ordered DMEPOS. However, Ms. Maynard failed to provide the requested documentation or allow CMS access to the documentation by the due date of February 28, 2017. While Ms. Maynard submitted medical records for 14 of the 20 requested Medicare beneficiaries . . . the submission of such records in her reconsideration request is not wholly responsive to the original request and is well beyond the due date of the original request for medical records, February 28, 2017. The provision of these records now, within the context of a reconsideration request does not constitute providing CMS access to medical records upon request as contemplated by 42 C.F.R. § 424.516(f).
CMS Ex. 1 at 5. CMS sent the reconsidered determination to Petitioner’s Oak Street address. CMS Ex. 1 at 1.
Petitioner timely requested an administrative law judge (ALJ) hearing on August 14, 2017. I issued an Acknowledgment and Pre-Hearing Order (Pre-Hearing Order) in which I directed the parties to submit their pre-hearing exchanges, to include pre-hearing briefs and supporting exhibits, by specified deadlines. Pre-Hearing Order, § 4.
Pursuant to my Pre-Hearing Order, CMS submitted a motion for summary judgment and pre-hearing brief (CMS Br.), along with nine proposed exhibits (CMS Exs. 1-9). Petitioner submitted her pre-hearing brief (P. Br.) with one proposed exhibit (P. Ex. 1). In conjunction with her filing of her list of exhibits, Petitioner, through counsel, filed an objection to CMS Ex. 3, which is the January 26, 2017 request for documentation. Petitioner argued the January 26, 2017 letter should be excluded because it is “new evidence,” in that she “never received the materials.” Though Petitioner does not specify the legal basis for her objection, I presume that she may be erroneously invoking the prohibition on suppliers submitting evidence for the first time at the ALJ stage of review. 42 C.F.R. § 498.56(e); see Pre-hearing Order, § 6. I need not address Petitioner’s argument because section 498.56(e) is inapplicable to submissions by CMS.
Further, Petitioner acknowledges that P. Ex. 1 is “new evidence,” which I am therefore required to exclude absent a showing of good cause. See 42 C.F.R. § 498.56(e). P. Ex. 1 is a copy of Petitioner’s October 3, 2017 email request for information under the Freedom of Information Act (FOIA), which Petitioner filed after CMS filed its pre-hearing exchange. I observe that as of the date of Petitioner’s FOIA request, CMS had
already submitted as a proposed exhibit CMS Ex. 3, which is the document Petitioner requested through her FOIA request (describing this document as “a multi-page letter dated January 26, 2017 sent to me at above listed address from CMS requesting medical records from a group of patients including all of their information which is presumably attached to the letter.”). See CMS Ex. 3; see also CMS Br. at 2 (describing the content of CMS Ex. 3).2 I do not admit P. Ex. 1 because it is not relevant to any issue I must decide; at most, it shows that Petitioner made a FOIA request. Therefore, I admit CMS Exs. 1-9 into the record.
Neither party has submitted the written direct testimony of any witnesses; therefore, a hearing for the purpose of cross‑examination is not necessary. See Pre-Hearing Order §§ 8, 9, and 10. I consider the record in this case to be closed, and the matter is ready for a decision on the merits.3
The issue is whether CMS had a legitimate basis for revoking Petitioner’s Medicare enrollment and billing privileges pursuant to 42 C.F.R. §§ 424.535(a)(10) and 424.516(f) because Petitioner did not timely provide CMS access to requested documentation.
I have jurisdiction to decide this issue. 42 C.F.R. §§ 498.3(b)(17), 498.5(l)(2).
IV. Findings of Fact, Conclusions of Law, and Analysis4
The Social Security Act authorizes the Secretary of Health and Human Services (Secretary) to establish regulations governing the enrollment of providers and suppliers in the Medicare program. 42 U.S.C. § 1395cc(j)(1)(A). The Secretary promulgated
enrollment regulations in 42 C.F.R. pt. 424, subpt. P. See 42 C.F.R. §§ 424.500-.570. Petitioner is a “supplier” for purposes of the Medicare program. See 42 U.S.C. § 1395x(d); 42 C.F.R. §§ 400.202 (definition of supplier), 410.20(b)(1). In order to participate in the Medicare program, a supplier must meet certain criteria to enroll and receive billing privileges. 42 C.F.R. §§ 424.505, 424.510. The regulations provide CMS with the authority to revoke the billing privileges of an enrolled supplier if CMS determines that the supplier failed to comply with a provision in 42 C.F.R. § 424.535(a).
CMS may revoke a supplier’s enrollment if the supplier fails to comply with the documentation or access to documentation requirements specified in 42 C.F.R. § 424.516(f). 42 C.F.R. § 424.535(a)(10). Section 424.516(f) requires suppliers who order DMEPOS to maintain and, upon request, provide CMS access to documentation for a period of seven years, to include “written and electronic documents . . . relating to written orders and certifications and requests for payment . . . .” 42 C.F.R. § 424.516(f)(2)(i)-(ii).
1. CMS sent a request for documentation to the address it had on file for Petitioner, and Petitioner did not provide the requested documents within the time period CMS designated for a response.
CMS notified Petitioner by letter dated January 26, 2017, that it was reviewing “Medicare benefits” for 20 patients and requested that Petitioner submit specified documentation no later than February 28, 2017. CMS Ex. 3 at 1, 3. The requested documents included “Progress Notes, Physician Orders/Prescriptions, Verbal Orders, Plans of Care and Face-to-Face Sheets . . . .” CMS Ex. 3 at 1. CMS sent the request for documentation to the address that Petitioner listed as her “Correspondence Address” in her September 2010 Medicare enrollment application, which was the Oak Street address. CMS Exs. 3 at 1; 9 at 7. It is undisputed that Petitioner did not respond to CMS’s request for documentation by February 28, 2017. CMS Exs. 2, 3; CMS Ex. 1 at 4; P. Br. at 1-2 (Petitioner was “unable to provide documentation to the satisfaction of CMS.”).
Petitioner argues that she never received the January 26, 2017 request for documentation. She acknowledges that CMS has offered proof that the request was delivered to the Oak Street address; that “N. FOREST” accepted and signed for it at 10:35 a.m. on January 30, 2017; and that this person is a “former employee.” P. Br. at 1 n.1; CMS Ex. 3 at 4. Yet, she maintains that she “first learned of this request later when she was informed by CMS that she was in violation of her requirements to provide medical records when requested by CMS . . . .” P. Br. at 1.
Petitioner does not offer any evidence, such as her own written declaration, to support her argument that she never received the January 26, 2017 request for documentation. See Order, §§ 8-9. To date, Petitioner herself has not spoken to the circumstances of this
case; rather, she has acted through Ms. Arrington, who requested reconsideration on her behalf, along with her present counsel. Petitioner herself has not claimed she did not receive the request, nor has she explained why she failed to act on the duplicate copy of the letter that CMS sent to her by facsimile. See CMS Ex. 3 at 1; P. Br. CMS has offered unrebutted evidence that “N. Forest,” who Petitioner concedes was an employee, signed for and received the request for documentation. CMS Ex. 3 at 4; P. Br. at 1 n.1.
Petitioner cannot escape responsibility for her failure to respond to CMS’s request for documentation by assigning blame to a former employee. As a supplier in the Medicare program, Petitioner is responsible for complying with the requirements of 42 C.F.R. § 424.516(f) and is responsible for the conduct of employees. See Norpro Orthotics & Prosthetics, Inc., DAB No. 2577 at 6 (2014), quoting Norpro Orthotics & Prosthetics, Inc., DAB CR3081 (2014); cf. Louis J. Gaefke, D.P.M., DAB No. 2554 (2013). Petitioner cites no legal authority relieving a supplier of the obligation to respond to a validly made request for documentation that an employee undisputedly received. Cf. Sandra E. Johnson, CRNA, DAB No. 2708 at 15 (2016); Howard B. Reife, D.P.M., DAB No. 2527 at 7 (2013). In signing her Medicare enrollment application, Petitioner attested that she would “abide by the Medicare laws, regulations, and program instructions,” including the requirement to respond to a properly made request for documentation. CMS Ex. 9 at 25; see 42 C.F.R. § 424.510(d)(3). The Departmental Appeals Board (DAB) has rejected an argument similar to Petitioner’s here, that a former employee’s actions were beyond her control, and upheld the revocation pursuant to 42 C.F.R. § 424.535(a)(10) of a supplier who blamed a former employer who closed a business and took certain records. George M. Young, M.D., DAB No. 2750 at 7 (2016). Petitioner cannot “shift the blame” to her former employee, Johnson, DAB No. 2708 at 15, and Petitioner certainly cannot claim that CMS misdirected the request for documentation or that it was lost in transit.
Moreover, the evidence demonstrates that CMS sent other correspondence to Petitioner at the same address, which Petitioner received, to include the March 31, 2017 initial determination revoking her billing privileges and the July 13, 2017 reconsidered determination upholding the revocation. CMS Exs. 1-2. In requesting reconsideration, Ms. Arrington again provided the Oak Street address, fewer than three months after an employee at that very address purportedly failed to provide her with a copy of the January 26, 2017 request for documentation. CMS Ex. 5 at 1. If Petitioner was concerned that she did not receive correspondence sent to that address, it seems unlikely that she would continue to list that address. Petitioner does not dispute that she failed to timely respond to CMS’s request for documentation sent to the Oak Street address.
2. CMS had a basis to revoke Petitioner’s Medicare enrollment and billing privileges pursuant to 42 C.F.R. §§ 424.535(a)(10) and 424.516(f) because Petitioner failed to comply with CPI’s request for documentation.
Pursuant to 42 C.F.R. § 424.535(a)(10), CMS may revoke a provider’s or supplier’s billing privileges and any corresponding provider or supplier agreement if:
(i) The provider or supplier did not comply with the documentation or CMS access requirements specified in § 424.516(f) of this subpart.
(ii) A provider or supplier that meets the revocation criteria specified in paragraph (a)(10)(i) of this section, is subject to revocation for a period of not more than 1 year for each act of noncompliance.
Section 424.516(f) provides additional provider and supplier requirements for enrolling and maintaining active enrollment status in the Medicare program. Specifically, the regulation provides:
(f) Maintaining and providing access to documentation.
* * * *
(2)(i) A[n] . . . eligible professional who orders items of DMEPOS . . . is required to—
(A) Maintain documentation (as described in paragraph (f)(2)(ii) of this section) for 7 years from the date of the service; and
(B) Upon request of CMS or a Medicare contractor, to provide access to that documentation (as described in paragraph (f)(2)(ii) of this section).
The regulation further specifies that the ordering official must maintain certain kinds of documents, including “written and electronic documents . . . relating to written orders or certifications or requests for payments for items of DMEPOS . . . .” 42 C.F.R. § 424.516(f)(2)(ii).
Petitioner received a request for documentation on January 26, 2017. The request gave Petitioner until February 28, 2017, to submit documentation for the identified patients. CMS Ex. 3 at 1-4. Petitioner did not submit the requested documents within CMS’s deadline. Therefore, revocation is appropriate pursuant to 42 C.F.R. § 424.535(a)(10).
Petitioner concedes that she did not furnish the requested documentation in a timely manner, because, she argues, she could not do so until she received “subsequent correspondence,” presumably referring to the revocation notice on March 31, 2017, well after the February 28, 2017 deadline. See P. Br. at 2 (“Petitioner did receive some of the
information from the [January 26, 2017 request for documentation] letter in a subsequent correspondence . . . .”); CMS Exs. 5 at 1 (request for reconsideration indicating that Petitioner had “look[ed] over the enclosed request,” but that it “doesn’t state what records they need.”); 7 at 1-3 (annotated list of the patients for whom CMS requested documentation); 1 at 2-4 (listing the patients for whom Petitioner submitted records, but observing that Petitioner indicated she did not have records for all 20 patients on the identified dates of service). Even when she believed she had a second opportunity to submit the requested documentation before the hearing officer at reconsideration, Petitioner submitted records for only 14 of the 20 individuals whose records CMS requested, as well as an annotated version of Attachment A.5 CMS Exs. 1 at 2-3; 7 at 1-3; 2 at 1. When Petitioner indisputably had the full list of patients for whom CMS sought patient records, she still did not provide the complete requested documentation to CMS.
I conclude that CMS had a basis to revoke Petitioner’s Medicare enrollment and billing privileges pursuant to 42 C.F.R. §§ 424.535(a)(10) and 424.516(f) because Petitioner failed to provide the requested documentation. Pursuant to 42 C.F.R. § 424.516(f), a supplier, such as Petitioner, is required to provide documents “upon request.” Petitioner failed to provide the documents upon CMS’s request. P. Br. at 2; see CMS Ex. 1 at 2. While Petitioner eventually provided some of the requested documents, she still did not submit the complete documents and indicated that she did not have records for several patients. See CMS Ex. 7. Therefore, CMS and First Coast had a legitimate basis to revoke Petitioner’s Medicare enrollment and billing privileges pursuant to 42 C.F.R. § 424.535(a)(10). See Letantia Bussell, M.D., DAB No. 2196 at 13 (2008).
As previously discussed, Petitioner’s primary argument in both her request for hearing and pre-hearing brief is that she was unable to comply with CMS’s request in a timely manner because she never personally received the January 26, 2017 request for documentation. Request for Hearing at 1; P. Br. at 1-2. Petitioner cites no authority relieving a Medicare supplier of the obligation to respond to a request for documentation properly submitted to the individual at her address of record, and I am aware of none. To the contrary, the DAB has repeatedly held that a supplier is liable for its staff’s acts or
omissions. See, e.g., Sandra E. Johnson, CRNA, DAB No. 2708 at 15; Mark Koch, D.O., DAB No. 2610 (2014); Norpro Orthotics & Prosthetics, Inc., DAB No. 2577; Louis J. Gaefke, D.P.M., DAB No. 2554; Howard B. Reife, D.P.M., DAB No. 2527.
Petitioner also argues that the application of 42 C.F.R. § 424.535(a)(10) in the instant case runs contrary to “[t]he intent behind this regulation.” P. Br. at 3. She argues that the regulation is not intended to punish “merely mistakes,” and that the “factors in the legislative intent [have] been bypassed or ignored by CMS . . . .” P. Br. at 4. In support of her arguments, Petitioner identifies a 2006 “Final Rule Summary,” though she does not offer a citation to it. P. Br. at 4.6 In fact, 42 C.F.R. § 424.535(a)(10) did not exist in 2006. In a 2008 Notice of Proposed Rulemaking, the Secretary proposed to “add a new § 424.516(f) that would” require physician and non-physician practitioners who ordered or referred DMEPOS for Medicare beneficiaries to “maintain written ordering and referring documentation for 10 years from the date of service.” 73 Fed. Reg. 38,501, 38,539 (July 7, 2008). CMS explained that it was “essential that . . . suppliers maintain documentation regarding the specific service ordered or referred to a Medicare beneficiary by a physician or [non-physician practitioner] . . . (which includes but is not limited to nurse practitioners and physician assistants),” such as Petitioner. Id. In light of CMS’s belief that such documentation requirements were “essential,” CMS further proposed to “add § 424.535(a)(10) that would state that failure to comply with the documentation requirements specified in § 424.516(f) as a reason for revocation.” Id. (emphasis added). In the Final Rule, CMS elaborated on the rationale for this new documentation requirement and revocation basis. It explained that “upon review, CMS or our contractor may validate the ordering/referring documentation maintained by the billing provider or supplier with the individual practitioner who ordered/referred the beneficiary for these services.” 73 Fed. Reg. 69,725, 69,781 (Nov. 19, 2008). CMS thus, to promote program integrity, created the requirement that an ordering practitioner (such as Petitioner) maintain the same information that a supplier of DMEPOS maintains. When a practitioner fails to provide that information, she impedes CMS’s program integrity efforts, subjecting her to revocation.
In the “Affordable Care Act,” Congress further promoted program integrity measures and specifically authorized the Secretary to:
revoke enrollment, for a period of not more than one year for each act, for a physician or supplier under section 1866(j) of the [Social Security] Act if such physician or supplier fails to maintain and, upon request of the Secretary, provide access to documentation relating to written orders or requests for payment for [DMEPOS], certifications for home health services, or referrals for other items or services written or ordered by such physician or supplier . . . .
Patient Protection and Affordable Care Act, Pub. L. No. 111-148, § 6406, 124 Stat. 769 (2010). Following enactment, the Secretary expanded the documentation requirements in 42 C.F.R. § 424.516(f) “to include requirements for documentation and access to documentation related to orders and referrals for covered home health, laboratory, imaging and specialist services.” 75 Fed. Reg. 24,437, 24,445 (May 5, 2010). The Secretary also revised 42 C.F.R. § 424.535(a)(10), consistent with section 6406 of the Affordable Care Act, to authorize CMS to “revoke enrollment, for a period of not more than one year for each act, for a provider or a supplier under section 1866(j) of the Act if such provider or supplier fails to meet the requirements of § 424.516(f).” Id. at 24,446. CMS’s actions are entirely consistent with the Affordable Care Act and its implementing regulations, and Petitioner’s argument is without merit.
Moreover, my review is limited to whether CMS had a legitimate basis for its action, which it did. See, e.g., Decatur Health Imaging, LLC, DAB No. 2805 at 8-9 (2017) (“The [DAB] has held that it does not review CMS’s exercise of discretion to take other actions the regulations authorize relating to the enrollment of suppliers and providers” (internal citations omitted).); Letantia Bussell, M.D., DAB No. 2196 at 13 (review of CMS determination by ALJ addresses “whether CMS had the authority to revoke . . .”).
For the reasons explained above, I affirm the revocation of Petitioner’s Medicare enrollment and billing privileges.
Leslie C. Rogall Administrative Law Judge
1. CMS did not indicate to what facsimile number it sent the request; however, Petitioner did have a facsimile number on file. See CMS Ex. 3 at 1; CMS Ex. 9 at 7.
- back to note 1 2. In page 2 of its brief, CMS describes CMS Ex. 3 as follows: “On January 26, 2017, CMS requested that Petitioner provide by February 28, 2017, the complete medical records for 20 beneficiaries, including progress notes, face-to-face sheets, physician orders and prescriptions, verbal orders, and plans of care for dates of services from January 1, 2015 to January 26, 2017. The request was sent by fax and by express mail to 1314 Oak St., Melbourne, Florida 32901-3111, the correspondence address Petitioner has maintained since her enrollment in 2010. Delivery . . . is evidenced by an express mail receipt bearing the signature of ‘N. Forest.’”
- back to note 2 3. CMS argues that summary disposition is appropriate. It is unnecessary to address the issue of summary disposition, as neither party has requested an in‑person hearing.
- back to note 3 4. My findings of fact and conclusions of law are set forth in italics and bold font.
- back to note 4 5. The annotated version of Attachment A that CMS offered into evidence indicates Petitioner was submitting records for 15 of 20 requested patients, whereas the hearing officer at reconsideration acknowledged receiving records for only 14 of 20 requested patients. Compare CMS Ex. 7 with CMS Ex. 1 at 3-4. Petitioner does not address in her pre-hearing brief for precisely how many patients she provided documentation with her request for reconsideration. Regardless of the discrepancy, it is undisputed that Petitioner did not submit all requested records with her request for reconsideration, despite having the full list of 20 patients from the January 26, 2017 documentation request, and notwithstanding her argument that she “remains willing and able to provide the documentation to CMS . . . .” P. Br. at 4.
- back to note 5 6. Petitioner appears to be quoting 71 Fed. Reg. 20,753, 20,761 (Apr. 21, 2006). Though this passage did not reference the specific documentation provisions at issue in this case (which did not yet exist), Petitioner curiously omits discussion of the documentation requests that CMS explained it would make in order to verify compliance with enrollment requirements. CMS stated, “We may request additional documentation from the . . . supplier to determine compliance if adverse information is received or otherwise found concerning the provider or supplier. If requested documentation we required under this or other statutory or regulatory authority is not submitted within 30 calendar days of our request, we would immediately begin revocation proceedings.” Id. (emphasis added). As far back as 2006, CMS strictly required suppliers to submit documentation upon request or face revocation “immediately.”
- back to note 6