Universal Health Care and Professional Services, LLC, DAB CR5753 (2020)

DECISION

I grant summary judgment in favor of the Centers for Medicare & Medicaid Services (CMS), sustaining the determination of a Medicare contractor to revoke the Medicare billing privileges of Petitioner, Universal Health Care and Professional Services, LLC, a supplier of durable medical equipment, prosthetics, orthotics, and supplies (DMEPOS).

I. Background

I received this case recently as a transfer from another administrative law judge.  Upon review of the file, I discovered that CMS had moved for summary judgment and that Petitioner had replied to the motion. 

I find that there are no disputed issues of material fact in this case and that the only issue is one of law:  whether CMS may revoke Petitioner’s Medicare billing privileges based on undisputed facts.  Summary judgment therefore is appropriate.

CMS offered five exhibits in support of its motion, identified as CMS Ex. 1-CMS Ex. 5.  Petitioner offered five exhibits as attachments to its request for hearing, identified as Ex.

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A-Ex. E.  CMS objected to my receiving Exhibits D and E into evidence, arguing that Petitioner did not offer these exhibits with its request for reconsideration of the contractor’s adverse initial determination and did not show good cause for its failure to do so. 

I do not receive the parties’ exhibits into evidence inasmuch as I decide this case based on undisputed facts.  I cite to some of these exhibits only to illustrate facts that are not in dispute.  I do not address the question of whether Petitioner’s untimely production of Exhibits D and E provides grounds for exclusion of these exhibits.  However, and as I discuss below, the contents of these exhibits are irrelevant to my decision.

II. Issue, Findings of Fact and Conclusions of Law

A. Issue

The issue is whether a Medicare contractor had the authority to revoke Petitioner’s participation in Medicare.

B. Findings of Fact and Conclusions of Law

A DMEPOS supplier must comply with all Medicare participation requirements in order to remain eligible to participate in that program.  Those requirements include the requirement that the supplier provide CMS or its contractor with all requested documents.  42 C.F.R. § 424.516(f).  Failure to provide requested documents constitutes grounds for revocation of Medicare billing privileges.  42 C.F.R. § 424.535(a)(10).  The requirement to produce requested documentation is absolute.  Failure by a supplier to produce even a single requested document justifies revocation of billing privileges.  George M. Young, M.D., DAB No. 2750 at 9 (2016).

The undisputed facts establish that, on February 8, 2018, a Medicare contractor requested Petitioner to produce records relating to 35 identified Medicare beneficiaries.  CMS Ex. 3 at 1-3, 5.  Petitioner failed to produce records for two of these beneficiaries, asserting that it could not locate them.  CMS Ex. 4 at 1.  The contractor then revoked Petitioner’s Medicare billing privileges based on its failure to comply with the documentation production request.  CMS Ex. 2 at 1-2.

These facts provided the contractor with the authority to revoke Petitioner’s Medicare billing privileges because they establish a failure by Petitioner to supply the contractor with requested documents in contravention of regulatory requirements.

Petitioner argues that it had no intent to defraud the Medicare program and that human error led its staff to misplace the requested documents.  It asserts that it refunded payments made by Medicare for supplies and services provided to the two beneficiaries

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whose records were missing.  It contends that it made diligent efforts to locate the missing records and that its staff located at least some of these records, albeit belatedly, after the contractor had made an unfavorable reconsidered determination of its initial determination to revoke Petitioner’s billing privileges.  See Request for Hearing at 2-3; Exs. D and E.

Petitioner’s belated discovery of requested records provides no legal basis for me to find that the contractor and CMS lack authority to revoke Petitioner’s Medicare billing privileges.  The late discovery of those records is irrelevant to the issue of the contractor’s and CMS’s authority to revoke participation.

The regulation requires a supplier to produce records when they are requested.  There is nothing in the regulation that suggests that a supplier can satisfy a production request by complying with it weeks or months after the fact.  See 42 C.F.R. § 424.516(f).  Here, the contractor requested that Petitioner produce beneficiary records in February 2018.  Petitioner did not discover the missing records until after the contractor denied reconsideration of its initial determination, several months later.

Petitioner concedes that the contractor and CMS are authorized to revoke its billing privileges based on the undisputed facts, but it asserts that considerations of fairness should operate in its favor.  At bottom, Petitioner argues that CMS and its contractor abused their discretion by revoking Petitioner’s Medicare billing privileges.

For purposes of this decision I assume that Petitioner acted in good faith and that it made no attempt to conceal records from the contractor and CMS.  I assume further that its staff had misplaced the records that are at issue and that Petitioner found these records after searching its files.  These facts do not serve as a basis for me to find that CMS and its contractor are without authority to revoke Petitioner’s Medicare billing privileges.

At bottom, Petitioner makes an equitable argument.  It concedes that CMS and its contractor are authorized to revoke its billing privileges, but argues that it would be unfair to do so given the unique facts of this case.  That is an argument that I lack authority to address.  I may not adjudicate equitable issues absent a showing that CMS or its agent engaged in malfeasance.  Richard Weinberger, M.D., and Barbara Vizy, M.D., DAB No. 2823 at 18-19 (2017).