Frank H. Snipes, M.D., DAB CR5273 (2019)

DECISION

The Centers for Medicare & Medicaid Services (CMS), through a CMS contractor, revoked the Medicare enrollment and billing privileges of Frank H. Snipes, M.D. (Dr. Snipes or Petitioner) because he failed to provide documentation, based on the CMS contractor's request, related to a number of Medicare claims involving home health services that Dr. Snipes ordered or certified. Dr. Snipes ultimately provided documentation related to all of the claims in question when he submitted his request for reconsideration. However, CMS upheld the revocation because Dr. Snipes failed to maintain the documentation that CMS requested and failed to provide it by the time CMS revoked him. Dr. Snipes requested a hearing to dispute the revocation. Because Dr. Snipes does not dispute that he failed to maintain documentation concerning the beneficiaries for whom he ordered home health services, I affirm CMS's revocation of Dr. Snipes' Medicare enrollment and billing privileges under 42 U.S.C. § 1395u(h)(9) and 42 C.F.R. § 424.535(a)(10).

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I. Background and Procedural History

Dr. Snipes was enrolled in the Medicare program as a physician, which meant that he was a supplier for Medicare program purposes. See 42 U.S.C. § 1395x(d). In a June 7, 2016 initial determination, a CMS contractor revoked Petitioner's Medicare billing privileges, effective July 7, 2016, based on 42 C.F.R. § 424.535(a)(10). The CMS contractor asserted that Dr. Snipes did not produce, in response to a request, medical records related to 17 beneficiaries for whom Dr. Snipes had ordered or certified home health services. CMS Exhibit (Ex.) 5.

Petitioner timely requested reconsideration of the initial determination and attached the medical records for the 17 beneficiaries in question. CMS Ex. 4. Dr. Snipes indicated that he had significant difficulty obtaining the records from his former employer, Physicians at Home Visiting Program, Inc., who was the custodian of the records. CMS Ex. 4 at 1-2.

On September 29, 2016, a CMS hearing officer issued a reconsidered determination upholding the initial determination. CMS Ex. 1. The hearing officer noted that "Dr. Snipes admits that he was unable to submit the 17 medical records requested because he did not maintain a copy of patient records," and concluded that:

[a]lthough Dr. Snipes claims that he attempted to obtain the medical records from his former employer[,] pursuant to 42 C.F.R. § 424.516(f)(2)(i), a physician who orders or certifies home health services is required to maintain documentation for seven years from the date of the service. Therefore, Dr. Snipes failed to fulfill obligations under 42 C.F.R. § 424.516(f)(2)(i). Therefore, CMS finds that Dr. Snipes' Medicare billing privileges were properly revoked.

CMS Ex. 1 at 3-4.

Petitioner timely requested a hearing. On December 6, 2016, Judge Carolyn Cozad Hughes issued an Acknowledgment and Pre-Hearing Order (Order) establishing deadlines for the submission of pre-hearing exchanges. In accordance with the Order, CMS filed its pre-hearing exchange, which included a motion for summary judgment and brief, and 7 exhibits. Petitioner failed to timely file an exchange, but in his Response to both an Order to Show Cause and CMS's Motion for Summary Judgment, Petitioner stated that "Petitioner requests that this matter be decided on the complete written record including Petitioner's Reconsideration Request. The facts, as stated, in CMS Motion for Summary Judgment are not in dispute by Petitioner."

On November 20, 2018, I was assigned to hear and decide this case.

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II. Decision on the Record

Petitioner did not object to any of CMS's proposed exhibits. Therefore, I admit all of CMS's exhibits into the record.

Petitioner requested that I decide this case on the written record. I accept this statement as Petitioner's written waiver of his right to an oral hearing and decide this case based on the written record, which includes Petitioner's reconsideration request with attached documentation (CMS Ex. 4). 42 C.F.R. § 498.66.

III. Issue

Whether CMS had a legitimate basis to revoke Petitioner's Medicare enrollment and billing privileges under 42 U.S.C. § 1395u and 42 C.F.R. § 424.535(a)(10).

IV. 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 42 U.S.C. § 1395cc(j)(8).

V. Findings of Fact, Conclusions of Law, and Analysis

My findings of fact and conclusions of law are set forth in italics and bold font.

The Social Security Act authorizes the Secretary of Health and Human Services (Secretary) to establish regulations governing the enrolling of providers and suppliers in the Medicare program. 42 U.S.C. § 1395cc(j)(1)(A). The Secretary promulgated enrollment regulations in 42 C.F.R. part 424, subpart P. See 42 C.F.R. §§ 424.500‑.570. The regulations provide CMS with the authority to revoke the billing privileges of an enrolled provider or supplier if CMS determines that a provider or supplier violated a provision in 42 C.F.R.§ 424.535(a).

1. Petitioner did not maintain copies of medical records for 7 years related to 17 beneficiaries for whom he ordered or certified home health services.

On February 29, 2016, an investigator with a CMS Zone Program Integrity Contractor interviewed Dr. Snipes. Dr. Snipes told the investigator that from about February 2015 to January 2016, he worked for Physicians at Home Visiting Program, Inc., in which he would conduct home visits with patients. Dr. Snipes said he was only an employee and had no financial interest in the business. Dr. Snipes stated that he would refer about 50% of the patients he saw for home health services. The investigator requested medical records for 22 beneficiaries that Dr. Snipes had referred for home health services. The

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investigator gave Dr. Snipes a written request for the documentation and 14 days to comply with the request. CMS Exs. 6, 7.

By June 7, 2016, Dr. Snipes had only provided medical records to the CMS contractor for five of the 22 beneficiaries. CMS Ex. 5 at 1. Petitioner eventually obtained the medical records for the remaining 17 beneficiaries, but Petitioner admitted that he did not maintain those records himself. As Petitioner stated:

On 2/29/2016 I was given the initial request for numerous medical records from CMS for specific patients. As some of those medical records were for patients of my current employer, Preste Medical Clinic, I was able to quickly comply [with] the medical record request for those patients as I had access to those charts.  However, the remaining 17 medical records were from my prior employer, Physicians At Home, where I provided medical services in people's home [sic]. I left that company more than a year and a half ago, and only worked for them for approximately one year.

Physicians at Home was the owner of and custodian of the CMS requested medical records. I did not keep a copy of any records nor did I have computer access to these records after I left their employment. I attempted to contact Physicians at Home on numerous occasions regarding the CMS request.

CMS Ex. 4 at 1-2.

2. CMS was authorized to revoke Petitioner's Medicare enrollment and billing privileges under 42 U.S.C. § 1395u(h)(9) and 42 C.F.R. § 424.535(a)(10) because Petitioner failed to maintain copies of medical records for beneficiaries for whom Petitioner ordered/certified home health services.

Congress established the following as a basis for revoking a supplier's Medicare enrollment:

The Secretary may revoke enrollment, for a period of not  more than one year for each act, for a physician or supplier under section 1395cc(j) of this title if such physician or supplier fails to maintain and, upon request of the Secretary, provide access to documentation relating to written orders or requests for payment for durable medical

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equipment, certifications for home health services, or referrals for other items or services written or ordered by such physician or supplier under this subchapter, as specified by the Secretary.

42 U.S.C. § 1395u(h)(9). The regulations implementing this statute state that CMS may revoke if:

(i) The provider or supplier did not comply with the documentation or CMS access requirements specified in § 424.516(f) of this subpart.

(ii) A provider or supplier that meets the revocation criteria specified in paragraph (a)(10)(i) of this section, is subject to revocation for a period of not more than 1 year for each act of noncompliance.

42 C.F.R. § 424.535(a)(10). Therefore, of importance in this case, 42 C.F.R. § 424.516(f)(2) states:

(i) A physician who orders/certifies home health services and the physician or, when permitted, other eligible professional who orders items of DMEPOS or clinical laboratory or imaging services is required to –

(A) Maintain documentation (as described in paragraph(f)(2)(ii) of this section) for 7 years from the date of the service; and

(B) Upon request of CMS or a Medicare contractor, to provide access to that documentation (as described in paragraph (f)(2)(ii) of this section).

(ii) The documentation includes written and electronic documents (including the NPI of the physician who ordered/certified the home health services and the NPI of the physician or, when permitted, other eligible professional who ordered the items of DMEPOS or the clinical laboratory or imaging services) relating to written orders or certifications or requests for payments for items of DMEPOS and clinical laboratory, imaging, and home health services.

42 C.F.R. § 424.516(f)(2) (emphasis added).

In the present case, there is no dispute that Petitioner did not maintain medical records, as required by 42 C.F.R. § 424.516(f)(2), for the 17 beneficiaries referenced in the initial

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determination in this case. Petitioner ultimately complied with CMS's request for those documents. However, even if I accept this as compliance with CMS's request, albeit several months after the request for documents was made, CMS's revocation can be sustained solely based on Petitioner's failure to maintain the documents in question. As stated in another case that has similar facts to the present case:

Petitioner argues, in essence, that circumstances beyond his control (i.e., H.Z. closed SMC and absconded with the records) prevented Petitioner from providing CMS access to those documents described in 42 C.F.R. § 424.516(f)(2)(ii) when CMS asked for access to them in 2015, years after their creation, allegedly made difficult by H.Z.'s closure of SMC and "theft" of documents, and Petitioner's status as a staff physician-employee of SMC. These arguments do not specifically go to the requirement that the ordering physician, Petitioner, maintain the documents as they are created and retain them for a period of seven years for purposes of providing CMS access to them should CMS or its contractor request to see them sometime during that period.

As the ALJ noted, the regulatory preamble expressly provides that, even in instances of "referral to home health care or for DMEPOS at a hospital or nursing home discharge," in which records "would typically be retained in that hospital's or nursing home's records, not by the physician in his/her records," "[t]he physician or other eligible professional who signed the order or certification is responsible for maintaining and disclosing the documentation." 77 Fed. Reg. at 25,310; ALJ Decision at 6 (quoting preamble). Thus, CMS contemplated that even physicians who may not have immediate, ready access to and direct control over medical documents (as, for example, a doctor who owns his or her own practice and keeps the medical documents within his or her medical office might) would be expected to adhere to the record retention and disclosure requirements.

Petitioner argues, in sum, that the preamble contemplates some degree of fault on the part of the physician who is later asked to produce documents, but that he bears no fault for his inability to produce the documents immediately on request, given H.Z.'s alleged act of "malfeasance" in "absconding" with the records after closing SMC. Regardless of H.Z.'s alleged actions, which Petitioner himself said took place after

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he left his position at SMC, Petitioner, as ordering physician, was required to maintain the records as they were developed in the course of his examining patients for possible need for DMEPOS items, i.e., during the period he was a physician at SMC, between October 2011 and October 2012. As we said, much of what Petitioner complains of, H.Z. closing SMC and absconding with the records, concerns the hurdles Petitioner encountered in trying to obtain the records to respond to CMS in 2015; it does not, however, excuse Petitioner's failure to maintain records from the time they came into existence through a period of seven years as required under the regulation. Therefore, despite arguments about lack of fault on Petitioner's part as to the events that transpired after his employment at SMC, Petitioner may be held responsible for complying with the regulation.

George M. Young, M.D., DAB No. 2750 at 10-11 (2016) (emphasis added).

Therefore, while Petitioner had great difficulty obtaining copies of the requested medical records from his former employer, this does not alleviate him from responsibility under the regulations to have maintained copies of the documents himself.

VI. Conclusion

For the reasons explained above, I affirm CMS's determination to revoke Petitioner's Medicare enrollment and billing privileges effective July 7, 2016.