Coast to Coast Home Healthcare, DAB CR5624 (2020)

DECISION

I sustain the determination of a Medicare contractor, as affirmed upon reconsideration, to revoke the Medicare enrollment and billing privileges of Petitioner, Coast to Coast Home Healthcare, a home health care agency.  Petitioner engaged in a pattern or practice of filing claims for Medicare reimbursement that failed to meet Medicare requirements, thus authorizing revocation pursuant to 42 C.F.R. § 424.535(a)(8)(ii).

I. Background

The Centers for Medicare & Medicaid Services (CMS) moved for summary judgment against Petitioner and Petitioner opposed the motion.  CMS offered a total of 17 exhibits in support of its case, identified as CMS Ex. 1-CMS Ex. 17.  Petitioner filed three exhibits in opposition, identified as P. Ex. 1-P. Ex. 3.  Two of these exhibits, P. Ex. 2 and P. Ex. 3, are affidavits.  CMS offered the written direct testimony of a witness, Chris Styron.  CMS Ex. 17.  Petitioner did not request to cross-examine Mr. Styron.  CMS at first requested to cross-examine Petitioner’s affiants but then, withdrew its request.

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There is no need for me to address the legal criteria for summary judgment.  Rather, I decide this case based on the parties’ written exchanges inasmuch as neither party requests a hearing on the record for the purpose of cross-examination.  I receive into the record CMS Ex. 1-CMS Ex. 17 and P. Ex. 1-P. Ex. 3.

II. Issue, Findings of Fact and Conclusions of Law

A. Issue

The issue is whether a Medicare contractor, acting on behalf of CMS, may revoke Petitioner’s Medicare billing privileges.

B. Findings of Fact and Conclusions of Law

A home health agency may not claim reimbursement from Medicare for services provided to a Medicare beneficiary unless that beneficiary’s treating physician certifies that the beneficiary is in need of such services.  42 C.F.R. § 424.22(a)(2).  In order to be valid, the certification and related documents must be signed and dated by the beneficiary’s treating physician when he or she establishes a plan of care for the beneficiary or as soon thereafter as is possible.  Id.  The requirement of a valid signed and dated certification is a critical element of eligibility for home health care services.  “The certifying physician plays the role of gatekeeper in ascertaining whether a patient is homebound and qualifies for home health services; Medicare relies on the independent and honest professional judgment of the certifying physician for that purpose.”  United States v. Dehaan, 896 F.3d 798, 807 (7th Cir. 2018).

CMS may revoke a home health agency’s Medicare billing privileges where a provider demonstrates a “pattern or practice of submitting claims that fail to meet Medicare requirements.”  42 C.F.R. § 424.535(a)(8)(ii).  A pattern or practice of filing claims for home health services in the absence of valid certifications suffices to establish grounds for revocation pursuant to this regulation.

Here, CMS alleges that, during a period of almost eight months, running from June 25, 2018 through February 2, 2019, Petitioner filed home health care reimbursement claims for eight beneficiaries that failed to meet Medicare billing requirements.  CMS Ex. 11; CMS Ex. 15.  It asserts that necessary documentation, including these beneficiaries’ plans of care, was not signed and dated by the residents’ treating physician.  It alleges further that the physician who was listed as the certifying physician on these claims did not order home health care services for these eight beneficiaries.

The weight of the evidence shows that Petitioner filed claims for services that had not been certified by the beneficiaries’ purported treating physician.  Additionally, Petitioner claimed reimbursement for home health services rendered to these beneficiaries without

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having certifying documents that were both signed and dated by the beneficiaries’ physician.  These claims did not comply with Medicare billing requirements.  They comprise a pattern or practice of non-reimbursable claims, in that the claims were similar in nature and non-payable for the same reason, and because Petitioner filed multiple non‑reimbursable claims during a relatively brief period of time.  42 C.F.R. § 424.535(a)(8)(ii)(B), (D), (F).

CMS offered a statement purportedly signed by a physician, Wuu-Shyong Wu, M.D.  CMS Ex. 12.  Its author avers that he did not order services for the eight beneficiaries and did not have a treating relationship with them.  If true, that would prove that the services for which Petitioner filed reimbursement claims were non-reimbursable.

The statement clearly comprises testimony, but it was not made under oath.  CMS did not list Dr. Wu as a witness, nor did it provide written direct testimony by Dr. Wu made as an affidavit or declaration.  For these reasons I do not afford any weight to this statement.  If the statement were CMS’s only evidence, then I would likely not find in its favor on the issue of whether Dr. Wu actually certified the beneficiaries to receive home health care.1

There is, however, additional evidence from which I infer that Dr. Wu did not have a treating relationship with the eight beneficiaries whose care lies at the center of this case.  Neither Dr. Wu nor his practice filed reimbursement claims for services rendered to any of the eight beneficiaries.  CMS Ex. 13.2  It is reasonable to conclude that, if a participating Medicare supplier fails consistently to file reimbursement claims on behalf of a beneficiary, then that supplier is not providing services to that beneficiary.

CMS offered additional evidence establishing an additional reason why the claims filed by Petitioner were not reimbursable.  I find that evidence to be persuasive.  That evidence consists of documents purportedly certifying that the eight beneficiaries needed home health care services.  Most of these documents bear signatures purporting to be that of Dr.

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Wu.3  However, in none of these documents does a date appear next to the purported signature.  CMS Ex. 5 at 22-24, CMS Ex. 14 at 2, 4, 6, 8 (beneficiary G.G.G.); CMS Ex. 6 at 19-25, CMS Ex. 14 at 103, 105, 107, 109 (beneficiary A.H.S.); CMS Ex. 2 at 17-19, CMS Ex. 14 at 202, 204, 206 (beneficiary M.M.); CMS Ex. 3 at 14-16, CMS Ex. 14 at 275, 277, 279 (beneficiary F.D.C.G.); CMS Ex. 7 at 9-12, CMS Ex. 14 at 354, 356, 358, 360 (beneficiary R.B.M.); CMS Ex. 4 at 27-30, CMS Ex. 14 at 453, 455, 457, 459 (beneficiary V.G.P.); CMS Ex. 8 at 8-10, CMS Ex. 14 at 544, 546, 548 (beneficiary J.S.); and CMS Ex. 9 at 13-15, CMS Ex. 14 at 617, 619, 621, 623 (beneficiary J.G.G.).

The absence of a date on the physician’s signature line renders these documents invalid for purposes of claiming Medicare reimbursement.  The governing regulation is explicit; the treating physician must sign and date the documents used for certifying a beneficiary’s eligibility for home health care.  42 C.F.R. § 424.22(a)(2).  Signing these documents without dating them does not comply with regulatory requirements.  Dr. Wu’s initials on these documents – assuming that he wrote those initials – is insufficient to validate these documents for Medicare reimbursement purposes.  Medicare reimbursement claims that Petitioner submitted premised on these invalid certifying documents failed to meet Medicare reimbursement requirements.  Id.; see 42 C.F.R. § 424.535(a)(8)(ii).

The failure to date the physician’s purported initials is not a trivial or technical error.  As I have discussed, the governing regulation makes dating the physician’s signature of coequal importance with the requirement that the treating physician sign the certifying documents.  Petitioner is responsible for being aware of, and complying with, Medicare participation requirements.  It has no excuse for its failure to assure that the certifying documents were properly executed before it filed Medicare reimbursement claims based on those documents.

There is an obvious pattern to Petitioner’s submission of non-reimbursable claims.  The certifying documents that I have identified all have an identical flaw.  Each of them lacks the requisite date next to Dr. Wu’s purported initials.  Petitioner repeatedly submitted claims based on very similar invalid documents over a period of about eight months.  Had Petitioner exercised reasonable diligence it would have noticed the recurring discrepancy.  Consequently, Petitioner’s pattern of filing non-reimbursable claims, all with the same invalid characteristics, authorizes revocation of its Medicare billing privileges.

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I find Petitioner’s arguments to be without merit.

Principally, Petitioner challenges CMS’s contention that Dr. Wu neither treated the eight beneficiaries nor referred them for home health care services.  Petitioner asserts that Dr. Wu’s signature was “all over” the patient records that were provided to the contractor.  Petitioner’s brief at 8, 10.  Petitioner contends that these documents clearly establish a treating relationship between Dr. Wu and the eight beneficiaries.  However, Petitioner offered no expert of its own to validate Dr. Wu’s purported signature on any document.

The exhibits that were submitted by CMS in this case consist of the plans of care and other documents that I cite above, along with some records from Dr. Wu’s office, including records of physical examinations.  CMS Ex. 2-CMS Ex. 9; CMS Ex. 14.

I have explained above why I find that the documents used for certification of home health care for the eight beneficiaries do not satisfy regulatory requirements.  Not only are the physician signatures on these documents undated but there is also no proof that  Dr. Wu actually inscribed his initials on any of them, despite Petitioner’s argument that he was the treating physician who signed the documents.  The additional treatment records are similarly unpersuasive.  All of them bear the same initials as in the referring and certifying documents (which do not resemble the signature attributed to Dr. Wu in CMS Ex. 12).

Petitioner made no effort to verify that Dr. Wu actually signed these additional medical records.  It did not call a handwriting expert, nor did it subpoena Dr. Wu and demand that he attest to whether the initials on these documents are his.

Petitioner contends that the fact that Dr. Wu did not file reimbursement claims for care that he provided to the eight beneficiaries is insufficient to prove that these patients were not being cared for by Dr. Wu.  Petitioner’s brief at 8.  It criticizes the Medicare contractor’s apparent failure to investigate other possible reasons why Dr. Wu did not file reimbursement claims.  As I have stated, it is reasonable to infer that, if a supplier does not file claims for services, then the supplier did not provide these services.

Petitioner asserts that an employee of Dr. Wu’s practice – “Josie” – told Petitioner’s owner and one of its attorneys that she knew personally that Dr. Wu treated the eight beneficiaries.  Petitioner’s brief at 8-9; P. Ex. 2; P. Ex. 3.  Petitioner contends that “Josie” agreed to testify on Petitioner’s behalf but then, reneged.

Petitioner’s assertions based on what “Josie” said rest entirely on hearsay.  See P. Ex. 2; P. Ex. 3.  Proceedings before me are not explicitly bound by the Federal Rules of Evidence, and I often admit hearsay into evidence that would not be admissible in a federal district court.  That said, I do not find to be credible hearsay that lacks corroboration in any respect.  Whatever “Josie” may have related to Petitioner’s owner

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and its attorney is completely unsupported.  For that reason, I find Petitioner’s hearsay evidence to be unreliable and I draw no inferences from it.

Petitioner argues that each of the certification forms that are at issue in this case is dated, citing CMS Ex. 2 at 17-19, CMS Ex. 3 at 14-16, CMS Ex. 4 at 27-30, CMS Ex. 5 at 18‑25, CMS Ex. 6 at 19-25, CMS Ex. 7 at 9-12, CMS Ex. 8 at 8-10, and CMS Ex. 9 at 13-15.  Petitioner’s brief at 11-12.  However, with the exception of certain documents in CMS Ex. 5, none of the documents relied on by Petitioner bear dates next to the initials of the individual purporting to be Dr. Wu.  As for CMS Ex. 5, pages 18-20 do have dates in the spaces provided next to the space for the physician’s signature.  These pages notwithstanding, more significant is the fact that other certifying documents, which ostensibly certified the beneficiary in question (beneficiary G.G.G.), were not dated by the person purporting to be Dr. Wu.  CMS Ex. 5 at 22-24; CMS Ex. 14 at 2, 4, 6, 8.

There are dates on many of the documents that were used to purportedly certify the eight beneficiaries for home health care.  However, in numerous instances, these dates are not in conjunction with Dr. Wu’s purported signatures.  For example, dating a document next to the signature line for a treating nurse does not substitute for the physician dating his or her signature.  As I have discussed, the regulation explicitly requires that the forms used for certification be signed and dated by the beneficiary’s treating physician.  Dates placed elsewhere on these documents do not satisfy this regulatory requirement.

Petitioner asserts that CMS has effectively abandoned the contractor’s principal reason for revoking Petitioner’s Medicare billing privileges.  According to Petitioner, the contractor focused on an allegation that fraud was involved in the home health care referrals and subsequent reimbursement claims that Petitioner filed for services provided to the eight beneficiaries.  It asserts that CMS has abandoned this allegation and now focuses on what it contends to be a minor error, the failure by Petitioner to file claims based on properly signed and dated referral and certification documents.

However, CMS did not abandon its contention that Dr. Wu did not treat or refer for home health care services the eight beneficiaries whose care is at issue.  To the contrary, CMS offered evidence explicitly addressing that contention.  CMS Ex. 12; CMS Ex. 13.  I have explained why I find Dr. Wu’s statement to be unpersuasive.  However, I do find the fact that Dr. Wu submitted no reimbursement claims for services provided to these beneficiaries to be persuasive proof that Dr. Wu did not treat the eight beneficiaries or refer them for home health services.

I take issue with Petitioner’s characterization of the failure to provide properly dated documents as being only minor.  As I have discussed, there is an explicit requirement that these documents be signed and dated by the treating physician.  Failure to date these documents violates the letter of the regulation’s requirement.  Moreover, Petitioner cannot claim credibly that it lacked notice of CMS’s argument that Petitioner’s claims

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rested on invalid documents.  The reconsidered determination specifically addressed the absence of dated physician’s signatures on these documents.  CMS Ex. 16 at 4.

Finally, Petitioner makes an equitable argument, asserting that CMS is unfairly revoking its billing privileges based on a minor or trivial error.  I’ve explained why I disagree that the failure to obtain properly signed and dated referrals and certifications is not trivial.  However, I lack authority to consider Petitioner’s equitable argument and do not address it for that reason.  US Ultrasound, DAB No. 2302 at 8 (2010).

• 1. CMS’s witness, Mr. Styron, averred that he spoke with Dr. Wu and that Dr. Wu affirmed to him that he did not treat any of the eight beneficiaries. CMS Ex. 17. Mr. Styron’s testimony is hearsay and I do not find that it lends support to Dr. Wu’s purported statement.
• 2. CMS Ex. 13 appears to be a computer-generated official record.  CMS represents that it shows that neither Dr. Wu nor his practice filed reimbursement claims for the eight beneficiaries.  I find the exhibit to be undecipherable.  However, Petitioner did not challenge the meaning or significance of this document, so I accept CMS’s representation.  See Coast to Coast Home Healthcare Pre-hearing Brief (Petitioner’s brief) at 8.
• 3. Someone initialed these documents on the signature lines reserved for the beneficiaries’ physicians.  There are evident discrepancies in appearance between these initials and the signature purported to be that of Dr. Wu in CMS Ex. 12.  If Dr. Wu signed CMS Ex. 12, then it is possible that the person who put Dr. Wu’s initials on the certifying documents is not Dr. Wu.  However, CMS did not offer Dr. Wu’s sworn testimony or that of an expert handwriting analyst, so I make no findings about the discrepancies except to find that they exist.  See, e.g., CMS Ex. 5 at 22-24.