Cork Medical, LLC, CR6287 (2023)

DECISION

I sustain the determination of the Centers for Medicare & Medicaid Services (CMS) to revoke the Medicare enrollment and billing privileges of Petitioner, Cork Medical LLC.

I. Background

Petitioner is a supplier of durable medical equipment and was enrolled as a participant in the Medicare program.  On September 22, 2022, CMS determined to revoke Petitioner’s enrollment, effective August 26, 2022.  Additionally, CMS imposed a one-year bar against re-enrollment.  CMS Exhibit (Ex.) 5.  Petitioner requested reconsideration on November 8, 2022.  CMS Ex. 7.  On December 14, 2022, CMS, through its contractor, issued an unfavorable decision upholding revocation and the re-enrollment bar.  CMS Ex. 8.

Petitioner requested a hearing to challenge CMS’s determination.  CMS filed a supporting brief plus eight exhibits that it identified as CMS Ex. 1- CMS Ex. 8.  Petitioner filed a statement in opposition to CMS’s submission.

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CMS styled its submission as a motion for summary judgment.  It is unnecessary that I address the criteria for summary judgment.  Neither CMS nor Petitioner offered the testimony of a witness.  Consequently, there is no basis for an in-person hearing for the purpose of cross-examining witnesses and I decide this case based on the parties’ written submissions.

Petitioner did not object to my receiving CMS’s exhibits into evidence.  I receive CMS Ex. 1-CMS Ex. 8 into evidence.

II. Issues, Findings of Fact and Conclusions of Law

A. Issues

The issues are whether CMS may revoke Petitioner’s enrollment in the Medicare program and its Medicare billing privileges, and whether CMS may impose a one-year bar against Petitioner’s re-enrollment in Medicare.

B. Findings of Fact and Conclusions of Law

To remain eligible to participate in Medicare, a durable medical equipment supplier must satisfy both the general requirements for suppliers’ participation in the program and additional requirements that apply specifically to suppliers of durable medical equipment.  CMS may revoke the participation of a durable medical equipment supplier that fails to meet these general and specific requirements.  42 C.F.R. § 424.535(a)(5).

The requirements that a supplier of durable medical equipment must meet include the requirement that is applicable to any supplier that it be operational to furnish Medicare covered items or services at its designated practice location.  42 C.F.R. § 424.510(d)(6).  A supplier is “operational” when, among other things, it has a qualified physical practice location and is open to the public for the purpose of providing Medicare items or services.  42 C.F.R. § 424.502.  A supplier of durable medical equipment must maintain an office that is accessible and staffed during posted hours of operation.  42 C.F.R. § 424.57(c)(7)(C).

CMS asserts that it may revoke Petitioner’s Medicare enrollment and billing privileges because on two occasions inspectors visited Petitioner’s place of business during its official hours and found it to be closed and inaccessible to the public.  The evidence offered by CMS supports this assertion and I find it to provide ample support for CMS’s determination.  AR Testing Corp., DAB No. 2679 at 9 (2016).  Petitioner was not operational within the meaning of 42 C.F.R. § 424.510(d)(6) nor was it accessible and staffed during posted hours of operation as is required by 42 C.F.R. § 424.57(c)(7)(C).

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Petitioner informed CMS via Medicare enrollment documents that its business hours were from 9:00 a.m. to 12 p.m. and 1 p.m. to 4 p.m., Monday through Friday.  CMS Ex. 2 at 3-4; CMS Ex. 3 at 4.  Inspectors visited Petitioner’s office on August 26, 2022 at about 10:31 a.m., and on September 7, 2022 at about 2:47 p.m.  CMS Ex. 1 at 7; CMS Ex. 1 at 9.  On both occasions the inspectors found Petitioner’s facility to be locked and inaccessible to the public.  CMS Ex. 1 at 24-28; CMS Ex. 1 at 8.  On the second visit the inspector attempted to call Petitioner and the call was unanswered.  Id. at 8.

Petitioner has not offered a meaningful defense.  In its statement, Petitioner addresses one of the two visits (it does not specify which one) and claims that on this occasion its manager was away from the office because he was taking a late lunch.  It asserts that the manager received a call from the inspector and that during the call the manager informed the inspector of his whereabouts and stated that he could return to the business within 15 minutes.  According to Petitioner, the inspector stated that he was not allowed to wait.

Petitioner does not support this statement with evidence.  However, the statement is an admission that its facility was not open during specified business hours during at least one of the inspectors’ visits to the facility.  I conclude that Petitioner’s failure to address the facts of the other inspector’s visit to be a tacit admission that it was not operational and accessible on that occasion as well.

The record establishes that Petitioner filed a purported corrective action plan with CMS after CMS notified it that its Medicare enrollment and billing privileges were revoked.  CMS Ex. 7.  I find that this action is irrelevant to my decision.  A supplier may not defend against revocation imposed pursuant to 42 C.F.R. § 424.535(a)(5) by filing a corrective action plan.

Imposition of an enrollment bar is automatic where CMS revokes a supplier’s Medicare participation and billing privileges.  42 C.F.R. § 424.535(c).  The minimum enrollment bar period is one year, the bar that CMS imposed here.  I may not review the determination to impose an enrollment bar independently from my review of the basis for revocation, nor do I have authority to address the reasonableness of the duration of the enrollment bar.