Ronald Lentini d/b/a Archie’s Shoe Store, DAB CR5348 (2019)

DECISION

I sustain the determination of a Medicare contractor, as affirmed upon reconsideration, to revoke the Medicare billing privileges of Petitioner, Ronald Lentini, d/b/a Archie’s Shoe Store.

I. Background

The Centers for Medicare & Medicaid Services (CMS) moved for summary judgment and Petitioner opposed the motion.  With its motion, CMS filed ten proposed exhibits that it identified as CMS Ex. 1-CMS Ex. 10.  In his opposition, Petitioner filed three proposed exhibits that he identified as P. Ex. 1-P. Ex. 3.

I do not receive the parties’ exhibits into evidence inasmuch as I find no disputed issues of material fact and grant summary judgment based on the undisputed facts.  However, I cite to some of the exhibits, but only to illustrate facts that are not in dispute.

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II. Issue, Findings of Fact and Conclusions of Law

A. Issue

The issue is whether a contractor operating on behalf of CMS properly revoked Petitioner’s Medicare billing privileges.

B. Findings of Fact and Conclusions of Law

These facts are undisputed.  Petitioner participated in Medicare as a supplier of durable medical equipment, prosthetics, orthotics, and supplies (DMEPOS), doing business in Pennsylvania.  CMS Ex. 9.  On April 25, 2018, a Medicare contractor notified Petitioner that he had to revalidate his Medicare participation.  Id.  Petitioner applied for revalidation on August 31, 2018.  CMS Ex. 8.

On November 13, 2018, the contractor revoked Petitioner’s Medicare privileges.  It did so because Petitioner failed to provide an orthotic fitter license, a license that is required of orthotics suppliers under Pennsylvania law.  CMS Ex. 5 at 1.  The contractor afforded Petitioner the opportunity to file a corrective action plan within 30 days.  Effectively, the contractor gave Petitioner 30 days to obtain the required orthotic fitter license.  CMS Ex. 5 at 2.

Petitioner filed a corrective action plan on December 3, 2018.  In that plan, Petitioner provided documentation that, on November 15, 2018, he had applied to the Pennsylvania State Board of Medicine for an orthotic fitter license.  CMS Ex. 4 at 3-4.  However, although Petitioner had applied for a license, he did not establish that he had obtained one.  On December 17, 2018, the contractor denied Petitioner’s corrective action plan, finding that Petitioner remained out of compliance with Medicare supplier standards inasmuch as he did not have an orthotic fitter license.  CMS Ex. 3.

Petitioner applied for reconsideration on January 7, 2019.  In that application, Petitioner acknowledged that he still had not received an orthotic fitter license.  CMS Ex. 2 at 1.  On January 25, 2019, the contractor issued a reconsidered determination affirming its initial determination.

These undisputed facts plainly establish that the contractor appropriately revoked Petitioner’s Medicare billing privileges.  Petitioner did not have an orthotic fitter license, a license that was required under Pennsylvania law and that, consequently, was required by regulations governing DMEPOS suppliers.

In order to maintain participation in Medicare a DMEPOS supplier, such as Petitioner, must comply with enrollment standards as set forth at 42 C.F.R. § 424.57(c)(1)-(30).  These standards include a requirement that the supplier have applicable licenses.

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42 C.F.R. § 424.57(c)(1)(ii).  CMS or its contractor may revoke a DMEPOS supplier’s participation and billing privileges for failure to comply with any regulatory requirement.  42 C.F.R. § 424.535(g). 

The mandatory minimum period of revocation is one year.  42 C.F.R. § 424.535(c).  The revocation period imposed by the contractor in this case – one year – comports with regulatory requirements.

Petitioner asserts that he complied with the corrective action plan and obtained an orthotic fitter license.  However, Petitioner admits that he did not obtain that license until February 19, 2019, beyond the 30-day period within which the contractor allowed him to obtain the license.  Petitioner’s belated receipt of his license does not vitiate the contractor’s revocation of his billing privileges for failure to have a license at the time of revocation, nor does it vitiate the reconsidered determination inasmuch as Petitioner also did not have a license when the contractor reconsidered its revocation determination.

I have no doubt that Petitioner made a good faith effort to obtain an orthotic fitter license.  However, Petitioner’s good faith does not satisfy the regulation’s requirement that he actually have a required license.  Petitioner’s contention that he acted as expeditiously as he could is an equitable argument that I lack authority to consider.  US Ultrasound, DAB No. 2302 at 8 (2010).