Shanone D. Chatman-Ashley, DAB CR6607 (2025)

DECISION

Petitioner, Shanone D. Chatman-Ashley, a nurse practitioner, was enrolled in the Medicare program as a supplier of services.  The Centers for Medicare & Medicaid Services (CMS), through a Medicare Unified Program Integrity Contractor (UPIC), Qlarant Integrity Solutions, Inc. (Qlarant), requested that Petitioner produce medical records for 20 patients for whom claims for durable medical equipment, prosthetics, orthotics, and supplies (DMEPOS) had been submitted to Medicare.  Medicare records indicated that Petitioner was the ordering professional for the DMEPOS items.  Petitioner did not produce the requested records.  On that basis, CMS revoked Petitioner’s Medicare billing privileges pursuant to 42 C.F.R. § 424.535(a)(10) and imposed a 10-year reenrollment bar.  Petitioner now appeals.  

I affirm CMS’s determination.  I find that CMS is authorized to revoke Petitioner’s Medicare privileges because Petitioner ordered DMEPOS items for the patients identified in the record requests, however, Petitioner did not maintain documentation for those patients and could not supply that documentation when the UPIC requested them.  I have no authority to review the length of the reenrollment bar. 

Page 2 

I.    Background and Procedural History

Petitioner is a nurse practitioner who was enrolled as a Medicare supplier in Louisiana.  Petitioner’s Exhibit (P. Ex.) B (¶ 1).  In a letter dated December 12, 2019, the UPIC requested that Petitioner provide medical records for 20 Medicare beneficiaries for dates of service between November 28, 2017 and March 18, 2019.  CMS Ex. 3 at 4.  The UPIC sent the letter via Federal Express to Petitioner at 2000 Opelousas Street, Lake Charles, LA 70601.  Id. at 1.  The letter instructed Petitioner to provide the requested documentation within 45 days of the date of the letter.  Id. at 2.  

Having received no response from Petitioner, the UPIC sent a second letter via Federal Express to Petitioner on July 29, 2020, at the same address as the December 12, 2019 correspondence.  CMS Ex. 4 at 1.  The letter warned Petitioner that if she failed to provide the requested documentation within 15 days from the date of the letter, “administrative action, including revocation, may be taken.”  Id. at 2.  The letter further provided that a supplier who does not comply with the request would be subject to a revocation under 42 C.F.R. § 424.535(a)(10) for failure to document or provide CMS access to the documentation.  Id.  

After receiving no response from Petitioner, Novitas Solutions (Novitas), a Medicare administrative contractor for CMS, sent a letter to Petitioner dated September 23, 2020, revoking Petitioner’s Medicare enrollment and billing privileges effective October 23, 2020.  The letter explained that the contractor revoked Petitioner’s Medicare privileges pursuant to 42 C.F.R. § 424.535(a)(10), because, when asked to do so, Petitioner did not provide any medical records for 20 Medicare beneficiaries for whom Petitioner ordered DMEPOS items.  CMS Ex. 1 at 1, 4.  The letter also stated that CMS had imposed a 10 year reenrollment bar, pursuant to 42 C.F.R. § 424.535(c).  Id. at 3.  

On December 10, 2021, Petitioner requested reconsideration.  CMS Ex. 2.  Petitioner did not deny that the reconsideration request was untimely filed.  Petitioner argued, however, that she never received the notices because they were sent to her employer’s main mailing address and not the address of the location at which she worked, and that she only became aware of her revocation in November of 2021.  Id.  

On December 17, 2021, CMS sent an email to Petitioner and Petitioner’s counsel acknowledging receipt of Petitioner’s reconsideration request and providing a link for Petitioner to upload the requested documentation for the 20 Medicare beneficiaries.  CMS Ex. 5.  

In a reconsidered determination dated January 10, 2022, a CMS hearing officer found good cause for the untimely request for reconsideration but upheld the revocation of Petitioner’s Medicare enrollment because Petitioner had not provided any of the requested documentation, despite being given the opportunity to do so.  CMS Ex. 6.  

Page 3

Petitioner timely requested a hearing before an administrative law judge.  The Civil Remedies Division (CRD) of the Departmental Appeals Board (Board or DAB) acknowledged receipt of Petitioner’s hearing request, assigned the case to Judge Bill Thomas, and issued a Standing Prehearing Order (Prehearing Order).1   Consistent with the Prehearing Order, CMS submitted a motion for summary judgment (CMS Br.) and 19 exhibits (CMS Exs. 1-19).  CMS did not propose any witnesses.  Petitioner submitted her prehearing brief opposing CMS’s motion for summary judgment (P. Br.) and four exhibits (P. Exs. A-D).  Petitioner proposed herself as a witness and offered her written direct testimony as P. Ex. B.  CMS did not request to cross-examine Petitioner.  

Neither party objected to the opposing party’s exhibits.  In the absence of objection, I admit CMS Exhibits 1-19 and Petitioner Exhibits A-D into the record.  

Although CMS has moved for summary judgment, and Petitioner opposes the motion, this matter may be decided based on the written record without considering whether the standards for summary judgment have been met.  Prehearing Order ¶¶ 8-11; Civil Remedies Division Procedures § 19(d).  The Prehearing Order filed in this matter informed the parties that “[a]n in person hearing to cross-examine witnesses will be necessary only if a party files admissible, written direct testimony, and the opposing party asks to cross-examine.”  Prehearing Order ¶ 10.  CMS did not request to cross-examine Petitioner, the only proposed witness.  Because a hearing is unnecessary, I decide this case on the written record.  I deny CMS’s motion for summary judgment as moot.  

II.    Issue

The issue in this case is whether CMS had a legal basis to revoke Petitioner’s Medicare enrollment and billing privileges under section 1842(h)(9) of the Social Security Act (Act) (codified at 42 U.S.C. § 1395u(h)(9)) and 42 C.F.R. § 424.535(a)(10). 

III.    Jurisdiction

I have jurisdiction to hear and decide this case.  See 42 C.F.R. §§ 498.3(b)(17), 498.5(l)(2); see also Act § 1866(j)(8) (42 U.S.C. § 1395cc(j)(8)); 42 C.F.R. §§ 405.803(a), 424.545(a), 498.1(g).  

Page 4

IV.    Discussion

A.    Applicable Legal Authority

The Act authorizes the Secretary of Health and Human Services (Secretary) to promulgate regulations governing the enrollment process for providers and suppliers.  Act §§ 1102, 1866(j) (42 U.S.C. §§ 1302, 1395cc(j)).  A “supplier” is “a physician or other practitioner, a facility, or other entity (other than a provider of services) that furnishes items or services” under the Medicare provisions of the Act.  Act § 1861(d) (42 U.S.C. § 1395x(d)); see also Act § 1861(u) (42 U.S.C. § 1395x(u)); 42 C.F.R. §§ 400.202, 424.502.  

The Act further authorizes the Secretary to revoke a supplier’s Medicare enrollment (for a period of not more than one year for each act) if the supplier does not maintain and, upon request, provide access to documentation relating to written orders or requests for payment for durable medical equipment or other items or services written or ordered by the supplier.  Act § 1842(h)(9) (42 U.S.C. § 1395u(h)(9)).  Implementing the statutory provisions, CMS’s regulations provide that CMS, acting on behalf of the Secretary, may revoke a supplier’s Medicare enrollment if the supplier fails to comply with the documentation or access requirements of 42 C.F.R. § 424.516(f).  42 C.F.R. § 424.535(a)(10).  

Section 424.516(f)(2)(i) provides that a physician or an “eligible professional” who orders DMEPOS items must maintain documentation of the transactions for seven years.  “Documentation” includes written and electronic documents, including the NPI (national provider identifier) of the physician or eligible professional, relating to written orders and certifications and requests for payment for items of DMEPOS.  42 C.F.R. § 424.516(f)(2)(ii).  

B.    Findings of Fact, Conclusions of Law, and Analysis2

1.    Because I decide this case on the written record, and not on summary judgment, I need not draw all inferences in Petitioner’s favor.  

Petitioner opposes CMS’s motion for summary judgment and seeks a hearing.  Request for Hearing (Req. for Hr.); P. Br.  However, a hearing is unnecessary because CMS did not request to cross-examine Petitioner, the only proposed witness.  I therefore decide this case based on the written record.  Deciding this case based on the written record does not deprive Petitioner of a hearing.  Courts recognize that, although a case may be decided on summary judgment or based on the written record, the administrative law 

Page 5

judge, by considering the evidence and applying the law, has granted the petitioner a hearing.  See CNG Transmission Corp. v. FERC, 40 F.3d 1289, 1293 (D.C. Cir. 1994) (holding that a “paper hearing” satisfies statutory requirements for “notice and opportunity for hearing”).  

Because I decide this case on the written record, rather than on summary judgment, I am not required to construe the evidence in the light most favorable to Petitioner.  Instead, I weigh the evidence in accordance with the burdens of proof and of persuasion established in a long line of Departmental Appeals Board (Board or DAB) cases.  The Board has interpreted the statutory regulations to include evidentiary burden shifting.  Specifically, if a Medicare supplier challenges the existence of a regulatory deficiency, CMS must make a prima facie case that the supplier failed to substantially comply with federal requirements, and, if this occurs, the supplier must then prove substantial compliance by a preponderance of the evidence.  See Cross Creek Health Care Center, DAB No. 1665 (1998); Hillman Rehab. Ctr., DAB No. 1611 (1997), 1997 WL 123708; Emerald Oaks, DAB No. 1800 (2001).  

The Hillman decision states that this scheme places the “ultimate burden of persuasion” on the supplier.  1997 WL 123708 at *6.  The decision further notes that the ultimate burden of persuasion determines the outcome of a case when the evidence is in equipoise.  Id. at *5 n.7.  Thus, if CMS makes a prima facie case, then Petitioner has the ultimate burden of persuasion on the issue of compliance.  This analysis therefore applies to all cases adjudicated under the Part 498 regulations, including cases involving the revocation of enrollment in the Medicare program.  Adora Healthcare Servs., Inc., DAB No. 2714 at 4 5 (2016); Medisource Corp., DAB No. 2011 at 2-3 (2006).  As discussed below, Petitioner’s arguments are insufficient to carry the ultimate burden of persuasion.  

2.    CMS established a prima facie case that Petitioner ordered DMEPOS items for 20 Medicare beneficiaries but did not maintain documentation relating to those orders and did not provide access to that documentation upon request by the UPIC, which violates 42 C.F.R. § 424.516(f).  

CMS produced billing records for Medicare claims of 20 beneficiaries, with names, dates of birth, and Medicare beneficiary numbers, along with the dates of service.  CMS Exs. 3, 4.  Each claim identified Petitioner as the ordering supplier by her name and NPI.  Id.  Petitioner does not dispute that CMS’s billing records accurately depict the claims as submitted.  P. Br. at 3-5; P. Ex. B at 2.  Petitioner does not contest that she ordered the DMEPOS items for the beneficiaries.  Id.  Petitioner states that since the reconsidered determination she was able to produce records for only six of the 20 beneficiaries.  P. Br. 

Page 6

at 5.3   Accordingly, Petitioner does not dispute that she has not produced records for 14 of the 20 beneficiaries, nor does she dispute that she did not provide any documentation to the UPIC or CMS prior to CMS’s reconsidered determination.  Thus, the evidence is sufficient to establish a prima facie case that CMS had authority to revoke Petitioner’s Medicare enrollments pursuant to 42 C.F.R. § 424.535(a)(10).  Furthermore, Petitioner’s evidence is insufficient to overcome CMS’s prima facie case.  

3.    Petitioner failed to prove by a preponderance of the evidence that she complied with the documentation and access requirements of 42 C.F.R. § 424.516(f)(2) or that she is exempt from those requirements.  

As the appellate decision of the Board in George M. Young, M.D., DAB No. 2750 (2016) explains, the plain language of 42 C.F.R § 424.516(f)(2) requires practitioners who order DMEPOS items billed to Medicare to do two things.  First, they must retain documents related to orders or certifications for DMEPOS items for a period of seven years.  Id. at 8.  Second, they must provide CMS or its contractor access to those documents upon request.  Id.  Petitioner does not dispute that she treated the patients for whom CMS requested records and admits that she neither maintained documents related to her treatment nor produced the requested records to CMS’s contractor.  P. Br. at 4-5.  This is all that is required for CMS to revoke Petitioner’s Medicare enrollment.  

In her declaration, Petitioner states that she worked for a company called Advantage Choice Care Telemedicine (Advantage) from 2017 through January of 2020 when Advantage went out of business.  P. Ex. B at 2.  Petitioner does not deny treating the 20 beneficiaries for whom CMS sought records and prescribing them DMEPOS.  Id.  Petitioner further states that she was only able to obtain copies of six of the 20 beneficiaries through a medical record retention company called HealthSplash, Inc. (HealthSplash).  Id. at 3.  Finally, in her Brief, Petitioner states that the records were kept and maintained by Advantage, and that Petitioner did not keep and maintain copies as required.  P. Br. at 3-4.  Thus, there is no dispute that Petitioner failed to retain records of the telemedicine visits she provided and therefore could not produce the records when the UPIC requested them.  

Petitioner attempts to excuse her failure to maintain and produce the records by arguing that she did not receive the notices from the UPIC and that she was unable to obtain the records from Advantage, stating “Petitioner respectfully submits that her failure to timely provide the requested records was due initially to her not knowing of the request and later, due to Petitioner’s failure to secure them through her former employer, Advantage.”  P. Br. at 4.  

Page 7

Petitioner’s argument that she did not receive the notices from the UPIC is insufficient, as Petitioner acknowledges that the UPIC mailed the letters to the address on file with CMS.  P. Br. at 4.  Petitioner does not assert that the letters were sent to the wrong address or that the letters were not delivered.4   Id.  However, Petitioner maintains that she physically worked at a different location than that provided to CMS.  Id.  As an initial matter, it is Petitioner’s responsibility to provide her correct business address to CMS.  Therefore, Petitioner’s failure to receive the notices is Petitioner’s responsibility and not CMS’s.  Second, I find the notice issue to be moot as Petitioner admits she did not keep and maintain the requested records.  Furthermore, Petitioner did not provide any records to CMS despite being given the opportunity to do so prior to the reconsidered decision, and to date has only been able to provide records for six of the 20 beneficiaries.  Accordingly, the alleged lack of notice has no bearing on the fact that Petitioner did not keep, maintain, or provide access to the records sought by CMS.  Accordingly, I find Petitioner’s notice argument unpersuasive.  

Turning to Petitioner’s argument that it is Advantage’s fault that Petitioner could not obtain the records similarly fails as it is Petitioner’s responsibility, and not her former employer’s, to keep, maintain or provide access to beneficiary records for seven years; a fact that Petitioner explicitly recognizes.  P. Br. at 4 (“Petitioner recognizes that she was still responsible for providing the medical records.”).  Petitioner’s attempts to redirect blame to others for her noncompliance do not exempt Petitioner from complying with the requirements imposed by 42 C.F.R. § 424.516(f)(2).  Medicare providers and suppliers, as participants in the program, have a duty to familiarize themselves with Medicare requirements.  Gulf S. Med. & Surgical Inst., & Kenner Dermatology Clinic, Inc., DAB No. 2400 at 9 (2011), aff’d, Gulf S. Med. & Surgical Inst., et al. v. Sebelius, 2:11-cv-02353 (E.D. La. Oct. 17, 2012); John Hartman, D.O., DAB No. 2564 at 3 (2014) (quoting Heckler v. Cmty. Health Servs. of Crawford Cnty., Inc., 467 U.S. 51, 63 (1984) (“[P]ersons ‘who deal with the government are expected to know the law[.]’”)); see also Thomas M. Horras & Christine Richards, DAB No. 2015 at 34 (2006) (officer and principal of provider had responsibility to be aware of and adhere to applicable law and regulations), aff’d, Horras v. Leavitt, 495 F.3d 894 (8th Cir. 2007).  Thus, Petitioner is charged with a duty to keep records of her encounters with patients for whom she prescribed DMEPOS items.  As the Young decision makes clear, Petitioner was obligated “to maintain records from the time they came into existence through a period of seven years as required under the regulation.”  DAB No. 2750 at 11.  There is no dispute that Petitioner herself did not maintain any of the records.  

Accordingly, I find that Petitioner has not only failed to rebut CMS’s prima facie case by a preponderance of the evidence but admits her failure to follow the applicable regulations.  

Page 8

4.    CMS had a legal basis to revoke Petitioner’s Medicare enrollment, pursuant to 42 C.F.R. § 424.535(a)(10).  

The Board has repeatedly held that an administrative law judge’s review of CMS’s determination to revoke a supplier’s Medicare enrollment is limited to deciding whether CMS has established one or more of the grounds specified in section 424.535(a).  See, e.g., William Garner, M.D., DAB No. 3026 at 16 (2020); Norman Johnson, M.D., DAB No. 2779 at 11 (2017) (and cases cited therein).  Petitioner contends that other actors – her former employer and HealthSplash – impeded her ability to comply with the records requests and urges me to take that under consideration.  

However, while CMS itself has discretion to consider “unique or mitigating circumstances in deciding whether, or how, to exercise its revocation authority,” I do not.  Johnson, DAB No. 2779 at 11 (citing Care Pro Home Health, Inc., DAB No. 2723 at 9 n.8 (2016)).  I may not substitute my discretion for that of CMS in determining whether the revocation is appropriate.  Id. (citing Abdul Razzaque Ahmed, M.D., DAB No. 2261 at 19 (2009), aff’d, Ahmed v. Sebelius, 710 F. Supp. 2d 167 (D. Mass. 2010)).  Rather, once CMS exercises its discretion and determines that revocation is warranted, the administrative law judge may not “look behind that exercise of discretion to ask whether he or she, or the Board, standing in CMS’s shoes, would reach the same decision to revoke.”  Young, DAB No. 2750 at 11 (citing Sandra E. Johnson, CRNA, DAB No. 2708 at 16 (2016)).  

Here, CMS was authorized to revoke Petitioner’s Medicare enrollment under section 424.535(a)(10).  CMS produced records showing that Petitioner ordered DMEPOS items for 20 Medicare beneficiaries – her name and NPI are on each of the billing entries.  Petitioner admits that she treated the 20 beneficiaries, but she did not maintain records of the encounters during which she ordered DMEPOS items for the beneficiaries.  Nor did Petitioner produce any such records or give CMS access to them until after the reconsidered determination, and she still has not provided any records for 14 beneficiaries.  I must therefore affirm the revocation under section 424.535(a)(10).  

5.    Petitioner’s general arguments in equity are not a basis to reverse the revocation of Petitioner’s Medicare enrollment and billing privileges.  

To the extent Petitioner argues that revocation of her Medicare enrollment and billing privileges is inequitable under the circumstances presented, CMS’s discretionary act to revoke a provider or supplier is not subject to review based on equity or mitigating circumstances.  Letantia Bussell, M.D., DAB No. 2196 at 13 (2008).  Rather, “the right to review of CMS’s determination by an [administrative law judge] serves to determine whether CMS had the authority to revoke [the provider’s or supplier’s] Medicare billing privileges, not to substitute the [administrative law judge’s] discretion about whether to revoke.”  Id. (italics substituted for original underscoring).  Once CMS establishes a legal 

Page 9

basis on which to proceed with a revocation, then the CMS determination to revoke becomes a permissible exercise of discretion, which I am not permitted to review.  See id. at 10; see also Ahmed, DAB No. 2261 at 19 (stating if CMS establishes the regulatory elements necessary for revocation, an administrative law judge may not substitute his or her “discretion for that of CMS in determining whether revocation is appropriate under all the circumstances”).  Accordingly, because I have determined that CMS had a legal basis to revoke Petitioner’s Medicare enrollment and billing privileges pursuant to 42 C.F.R. § 424.535(a)(10), the regulations do not authorize me to overturn CMS’s decision to revoke.  

a.    I have no authority to review the length of the reenrollment bar. 

When a supplier’s billing privileges are revoked, the supplier may not participate in the Medicare program until the end of the reenrollment bar, which must be for a minimum of one year but no more than 10 years (except under circumstances that are not present here), depending on the severity of the underlying offense.  42 C.F.R. § 424.535(c)(1).  Failing to produce any requested document violates section 424.516(f), and here Petitioner failed to do so for at least 14 beneficiaries, which is treated as at least 14 separate violations.  See Young, DAB No. 2750 at 9-10 (suggesting that failing to produce any requested document violates section 424.516(f)).  

In this case, CMS imposed a 10-year reenrollment bar and CMS’s decision setting the length of a reenrollment bar is not an initial determination subject to administrative review.  Vijendra Dave, M.D., DAB No. 2672 at 9-12 (2016); accord Garner, DAB No. 3026 at 16; Lilia Gorovits, M.D., P.C., DAB No. 2985 at 15-16 (2020), aff’d, Gorovits v. Becerra, No. 2:20-cv-01850 (E.D. Pa. May 17, 2021) (2021 WL 1962903); see 42 C.F.R. § 498.3(b)(17).  

V.    Conclusion

CMS was authorized to revoke Petitioner’s Medicare enrollment under section 424.535(a)(10) because Petitioner did not comply with the document retention and access requirements of section 424.516(f).  I have no authority to review the reenrollment bar imposed.  I therefore affirm CMS’s determination.