Amjad Butt, M.D. and Cardiovascular Institute of Selma, LLC, DAB CR5491 (2019)

DECISION

The Centers for Medicare & Medicaid Services' (CMS's) Zone Program Integrity Contractor, AdvanceMed, identified irregularities in claims that Amjad Butt, M.D. and Cardiovascular Institute of Selma, LLC (together, Petitioners, individually Dr. Butt and CIS) submitted to Medicare. As a result, CMS revoked Petitioners' Medicare enrollment and billing privileges. As explained more fully below, CMS properly concluded that Petitioners abused their billing privileges. I therefore affirm CMS's revocation of Petitioners' Medicare enrollment and billing privileges.

I. Background

Petitioners are Amjad Butt, M.D., a physician,1 and CIS, his practice. See, e.g., CMS Exhibit (Ex.) 10 at 18. AdvanceMed conducted data analysis of Medicare claims submitted by CIS for services provided by Dr. Butt. CMS Ex. 20 at ¶ 10. AdvanceMed concluded that CIS submitted 223 claims for services rendered to 42 beneficiaries for dates of service between March 21, 2016, and April 13, 2016, when Dr. Butt was out of

Page 2

the country. Id. In addition, AdvanceMed concluded that Dr. Butt had written prescriptions for controlled substances while his Alabama Controlled Substances Certificate (ACSC) was inactive. Id. at ¶¶ 11, 12. Based on this analysis, AdvanceMed recommended that CMS revoke the Medicare enrollment and billing privileges of Dr. Butt and CIS. Id. at ¶ 14. CMS reviewed AdvanceMed's recommendation and determined that revocation was appropriate. CMS Ex. 21 at ¶ 3.

By letter dated October 13, 2016, CMS notified CIS that its Medicare enrollment and billing privileges were being revoked effective November 12, 2016, pursuant to 42 C.F.R. § 424.535(a)(8)(i). CMS Ex. 2 at 1. By letter dated November 22, 2016, CMS notified Dr. Butt that his Medicare enrollment and billing privileges were being revoked effective December 22, 2016, pursuant to 42 C.F.R. § 424.535(a)(8)(i) and 42 C.F.R. § 424.535(a)(14)(ii). Id. at 15. CMS subsequently reopened and revised both initial determinations, via a March 17, 2017 letter for CIS, with an effective date of revocation of April 16, 2017, and an April 5, 2017 letter for Dr. Butt, with an effective date of revocation of May 5, 2017. CMS Ex. 3 at 1, 15. CMS imposed an enrollment bar of three years for both Petitioners. Id. at 2, 16. Petitioners sought reconsideration of the revocation determinations. CMS Ex. 8.

CMS issued reconsidered determinations dated August 22, 2017, confirming the decision to revoke Petitioners' Medicare enrollment and billing privileges. CMS Ex. 1 at 1, 16. The reconsidered determinations cited 42 C.F.R. § 424.535(a)(8)(i) and (a)(14)(ii) as revocation reasons for both Petitioners.

CMS cited 42 C.F.R. § 424.535(a)(8)(i) as the first basis for revocation. That provision authorizes CMS to revoke a supplier's Medicare billing privileges if the supplier submits a claim or claims for services that could not have been furnished to a specific individual on the date of service because the directing physician or beneficiary is not in the state or country when services were furnished. The reconsidered determinations explained that the revocations were based on the following facts:

... CIS submitted claims for Medicare beneficiaries for services rendered by Dr. Butt, between March 21 and April 13, 2016, a period of time when Dr. Butt admits that he was out of the country. On these Medicare claims, Dr. Butt was listed as the rendering physician .... However, Dr. Butt was admittedly out of the country, and therefore, could not have been the rendering physician for the claims submitted by CIS between March 21 and April 13, 2016.... A physician working in the place of another physician ... qualifies as a locum tenens arrangement, but [a locum tenens arrangement] requires that the submitted claims for services rendered by [the locum tenens physician] use a Q6 modifier....

Page 3

[I]nstead, the aforementioned claims were submitted to Medicare for payment using Dr. Butt's NPI [National Provider Identifier] as the rendering physician.

CMS Ex. 1 at 5-6, 20-21.

CMS cited 42 C.F.R. § 424.535(a)(14)(ii) as a second basis for revocation. That provision authorizes CMS to revoke a supplier's Medicare billing privileges when CMS determines that a physician or eligible professional has a pattern or practice of prescribing Part D drugs in a manner that fails to meet Medicare requirements. The reconsidered determinations stated:

Dr. Butt does not dispute CMS's contention that his ACSC lapsed and was inactive between December 31, 2015 and April 18, 2016, nor does Dr. Butt dispute having written 22 prescriptions for controlled substances during the period of time when he did not have valid prescribing authority.... Here, Dr. Butt prescribed controlled substances, including – oxycodone-acetaminophen, tramadol HCL, and alprazolam – to Medicare beneficiaries, while his ACSC was inactive. Dr. Butt wrote three prescriptions for controlled substances to one Medicare beneficiary ... and four to another Medicare beneficiary ... which equals seven instances, surpassing the threshold of three claims to demonstrate a pattern or practice of submitting claims that do not meet Medicare requirements.

CMS Ex. 1 at 6-7, 21-22. As a result, CMS found that Dr. Butt engaged in a pattern or practice of prescribing controlled substances without valid prescribing authority.

Petitioners requested a hearing before an administrative law judge by letter dated October 4, 2017. Request for Hearing (RFH). The case was assigned to me, and I issued an Acknowledgement and Pre-hearing Order dated October 23, 2017 (Order). My Order directed each party to file a pre-hearing exchange consisting of a brief and any supporting documents. Order ¶ 4. In response to the Order, CMS filed a combined pre-hearing brief and motion for summary judgment (CMS Br.) and 21 proposed exhibits (CMS Exs. 1‑21), including the declarations of an AdvanceMed employee (CMS Ex. 20) and a CMS employee (CMS Ex. 21). Petitioners filed a brief (P. Br.), a cross-motion for summary judgment (P. MSJ), and an affidavit signed by Dr. Butt (P. Affidavit). Neither party objected to the other's exhibits. Therefore, in the absence of objection, I admit CMS Exs. 1-21 and P. Affidavit into the record.

Although Petitioners offered the affidavit of Dr. Butt in support of their cross-motion for summary judgment, they did not list Dr. Butt as a witness. In any event, CMS did not

Page 4

request to cross-examine Dr. Butt. CMS identified two witnesses. I accept Dr. Butt's affidavit as a request to cross-examine CMS's witnesses. P. Affidavit at 14 ("I forever hold and reserve all rights to ... cross examination"). However, as I explain below, CMS is entitled to judgment as a matter of law. Therefore, an in-person hearing to cross‑examine CMS's witnesses is not necessary.

II. Issues

The issues in this case are:

1. Whether summary judgment is appropriate; and
2. Whether CMS had a legal basis to revoke Petitioners' Medicare enrollment and billing privileges.

III. Jurisdiction

I have jurisdiction to decide this case. 42 C.F.R. §§ 498.3(b)(17), 498.5(l)(2); see also Social Security Act (Act) § 1866(j)(8) (codified at 42 U.S.C. § 1395cc(j)(8)).

IV. Discussion

A. Statutory and Regulatory Background

To participate in the Medicare program as a supplier, an entity must meet certain criteria to enroll and receive billing privileges. 42 C.F.R. §§ 424.505, 424.510. CMS may revoke the enrollment and billing privileges of a supplier for any reason stated in 42 C.F.R. § 424.535. When CMS revokes a supplier's Medicare billing privileges, CMS establishes a reenrollment bar for a period ranging from one to three years. 42 C.F.R. § 424.535(c). Generally, a revocation becomes effective 30 days after CMS mails the initial determination revoking Medicare billing privileges. 42 C.F.R. § 424.535(g).

B. Findings of Fact, Conclusions of Law and Analysis

1. Summary judgment is appropriate.2

An administrative law judge may decide a case arising under 42 C.F.R. part 498 by summary judgment. Livingston Care Ctr. v. U.S. Dep't of Health & Human Servs., 388 F.3d 168, 172 (6th Cir. 2004) (citing Crestview Parke Care Ctr. v. Thompson, 373 F.3d 743 (6th Cir. 2004)). "Matters presented to the [administrative law judge] for summary

Page 5

judgment will follow Rule 56 of the Federal Rules of Civil Procedure and federal case law ..." Civil Remedies Division Procedures § 19(a)(iii).

Summary judgment is appropriate when there is no genuine dispute as to any issue of material fact for adjudication and/or the moving party is entitled to judgment as a matter of law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). In order to prevail on a motion for summary judgment, the moving party must show that there is no genuine dispute of material fact requiring an evidentiary hearing and that it is entitled to judgment as a matter of law. If the moving party meets this initial burden, the non-moving party must "come forward with 'specific facts showing that there is a genuine issue for trial ....'" Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (quoting Fed. R. Civ. Pro. 56(e)). "To defeat an adequately supported summary judgment motion, the non-moving party may not rely on the denials in its pleadings or briefs, but must furnish evidence of a dispute concerning a material fact — a fact that, if proven, would affect the outcome of the case under governing law." Senior Rehab. & Skilled Nursing Ctr., DAB No. 2300 at 3 (2010).

In evaluating a motion for summary judgment, an administrative law judge does not address credibility or evaluate the weight of conflicting evidence. Holy Cross Village at Notre Dame, Inc., DAB No. 2291 at 5 (2009). Rather, in examining the evidence to determine the appropriateness of summary judgment, an administrative law judge must draw all reasonable inferences in the light most favorable to the non-moving party. See Brightview Care Ctr., DAB No. 2132 at 9-10 (2007) (upholding summary judgment where inferences and views of non-moving party are not reasonable). "[A]t the summary judgment stage the judge's function is not ... to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Anderson v. Liberty Lobby, 477 U.S. at 249. However, drawing factual inferences in the light most favorable to the non-moving party does not require that I accept the non-moving party's legal conclusions. Cedar Lake Nursing Home, DAB No. 2344 at 7 (2010).

Viewing the evidence before me in a light most favorable to Petitioners and drawing all reasonable inferences in Petitioners' favor, I conclude that there is no genuine dispute as to any material fact pertinent to revocation under 42 C.F.R. § 424.535(a)(8) that would require a hearing in this case. Contrary to their characterization, Petitioners' arguments do not raise disputed facts but rather concern the legal significance of facts that Petitioner has conceded. The undisputed facts establish that CMS had a basis to revoke Petitioners' Medicare enrollment and billing privileges. Accordingly, summary judgment is appropriate.

Page 6

2. CMS had a legal basis to revoke Petitioners' Medicare enrollment and billing privileges pursuant to 42 C.F.R. § 424.535(a)(8)(i) because Petitioners submitted claims for services that could not have been provided as claimed, as Dr. Butt was out of the country on the relevant dates of service.

CMS may revoke a supplier's billing privileges if the supplier submits a claim or claims for services that could not have been furnished to a specific individual on the date of service. These instances include but are not limited to the following situations: (A) where the beneficiary is deceased; (B) when the directing physician or beneficiary is not in the state or country when services were furnished; and (C) when the equipment necessary for testing is not present where the testing is said to have occurred. 42 C.F.R. § 424.535(a)(8)(i). The reconsidered determinations concluded that Petitioners submitted 223 claims for services purportedly furnished by Dr. Butt on dates of service when he was out of the country.

Dr. Butt acknowledges that he was out of the country from March 20, 2016, until April 20, 2016. CMS Ex. 5; P. Affidavit at 10. Dr. Butt explains that, during his absence, another physician, Dr. Kanwal, provided services for Dr. Butt's patients on an as-needed basis, and Dr. Butt resumed seeing patients on April 22, 2016. CMS Ex. 5; P. Affidavit at 10. Dr. Butt states that he employed Dr. Kanwal as a locum tenens physician during his absence.3 P. Affidavit at 10-11; see also CMS Ex. 12 (affidavit of Dr. Kanwal).

By statute, a claim for Medicare reimbursement for services provided by a locum tenens physician must include the locum tenens physician's unique identifier (NPI). Act, § 1842(b)(6)(D)(iv) (42 U.S.C. § 1395u(b)(6)(D)(iv)). The Medicare Claims Processing Manual (MCPM) provides additional guidance. The MCPM instructs that, in the case of services provided by a locum tenens physician (also referred to as a fee-for-time compensation arrangement), the claim for reimbursement must include the code modifier Q6 after the applicable procedure code. MCPM, CMS Pub. 100-04, ch. 1, §§ 1.30.2.1.H; 1.30.2.11.B.

Page 7

CMS offered evidence that CIS submitted 223 claims for services provided during Dr. Butt's absence that listed Dr. Butt as the rendering physician and did not include Dr. Kanwal's NPI or the required Q6 code modifier. CMS Ex. 3 at 1, 15; CMS Ex. 20 at ¶ 10. Because the claims did not include the Q6 modifier or Dr. Kanwal's NPI, they in effect represented that Dr. Butt himself had provided the claimed services.4

A proper claim is one that identifies both the specific named beneficiary who received a service and the specific named physician who furnished the service to the beneficiary. The regulations authorize CMS to revoke a supplier's Medicare billing privileges if a supplier (1) submits a claim for services and (2) that claim could not have been furnished to a specific beneficiary or by a specific physician on the date of service. The regulation expressly authorizes CMS to find these conditions met when the directing physician is not in the country when services were furnished. 42 C.F.R. § 424.535(a)(8)(i)(B). Thus, in the present case, because Dr. Butt (the physician identified on the claims) was out of the country when the services were furnished, the claimed services "could not have been furnished" within the meaning of section 424.535(a)(8)(i). See Mohammed Nawaz, M.D. & Mohammad Zaim, M.D., PA, DAB CR4244 at 5 (2015), aff'd, DAB No. 2687 (2016), aff'd, Nawaz v. Price, No. 4:16cv386, 2017 WL 2798230 (E.D. Tex. 2017) (a physician's admission that he was out of the country on claimed dates of service "is all that CMS needs ... to authorize revocation").

Petitioners do not dispute the key facts that support CMS's revocation determinations: the claims they submitted during Dr. Butt's absence listed Dr. Butt–and not Dr. Kanwal–as the rendering physician. Petitioners do not contend that they properly billed for Dr. Kanwal's services as a locum tenens physician. Instead, Petitioners argue that they should not be held responsible because their billing company was at fault for failing to include the Q6 code modifier. RFH at 4-5. Dr. Butt further contends that he believed he was billing appropriately and did not intend to defraud Medicare. Id. at 5, 7; see also P. Affidavit at 11. For purposes of ruling on CMS's motion for summary judgment, I accept as true (1) that Petitioners did not submit the improper claims themselves, but did so through a billing company; (2) that Dr. Butt subjectively believed that he appropriately arranged and billed for the services of a locum tenens physician during his absence; and (3) that he did not intend to defraud Medicare. However, none of these contentions is a basis to conclude that Petitioners did not submit claims for services that could not have

Page 8

been provided as claimed, within the meaning of 42 C.F.R. § 424.535(a)(8)(i), as CMS found.

First, even if Petitioners themselves did not submit the erroneous claims at issue, but relied on their billing company, this is not a defense. A supplier may not escape revocation by deflecting blame for improper claims onto an agent such as a billing company. See Louis J. Gaefke, D.P.M., DAB No. 2554 at 5-6 (2013). As the appellate panel in Gaefke affirmed, a Medicare supplier is ultimately responsible for the accuracy of its claims for Medicare reimbursement. Id. at 6 (citing 73 Fed. Reg. at 36,448, 36,455 (June 27, 2008) ("we believe that providers and suppliers are responsible for the claims they submit or the claims submitted on their behalf [and] that it is essential that providers and suppliers take the necessary steps to ensure they are billing appropriately for services furnished to Medicare beneficiaries.")). Nor is it a defense that Dr. Butt subjectively believed that he and his practice billed appropriately for the disputed claims. See P. Affidavit at 11. As an appellate panel of the DAB has observed: "Medicare suppliers are presumed to have constructive notice of the statutes and regulations that govern their participation as a matter of law." Pepper Hill Nursing & Rehab. Ctr., LLC, DAB No. 2395 at 8 (2011). See also Heckler v. Cmty. Health Servs. of Crawford Cnty., Inc., 467 U.S. 51, 63, 64 (1984) (participant in the Medicare program had "duty to familiarize itself with the legal requirements" for cost reimbursement).

Finally, section 424.535(a)(8) does not condition revocation on proof that a supplier's conduct was fraudulent. See, e.g., Gaefke, DAB No. 2554 at 7 ("the regulation contains no requirement that CMS establish that the supplier acted with fraudulent or dishonest intent"). To the contrary, appellate panels of the Departmental Appeals Board (DAB) have expressly "rejected ... the idea that a supplier's intent in submitting improper claims of the kind described in section 424.535(a)(8) is relevant in a revocation case based on that subsection." John M. Shimko, D.P.M., DAB No. 2689 at 5 (2016). In the Shimko decision, the panel summarized its reasoning, explaining that "repeatedly making similar errors makes it less plausible to call them merely accidental and 'establishes a pattern of improper billing that suggests a lack of attention to detail ....'" DAB No. 2869 at 6 (quoting Gaefke, DAB No. 2554 at 9 (some internal quotation marks omitted)). Thus, the fact that Dr. Butt may have acted without fraudulent intent is irrelevant to my decision. For that reason, any possible factual dispute relating to Dr. Butt's intent is immaterial for purposes of summary judgment. For all these reasons, CMS was authorized to revoke Petitioners' Medicare enrollment and billing privileges. Petitioners are responsible for submitting 223 claims for Medicare reimbursement that could not have been furnished by Dr. Butt because he was out of the country on the claimed dates of service.

Page 9

3. I need not decide whether CMS had a legitimate basis to revoke Petitioners' Medicare enrollment and billing privileges pursuant to 42 C.F.R. § 424.535(a)(14)(ii).

Because I have concluded that CMS was authorized to revoke Petitioners' Medicare enrollment and billing privileges pursuant to 42 C.F.R. § 424.535(a)(8)(i), I need not decide whether CMS also had a basis to revoke Petitioners' enrollment and billing privileges pursuant to 42 C.F.R. § 424.535(a)(14)(ii). It is unnecessary for me to do so because I must uphold the revocation basis under 42 C.F.R. § 424.535(a)(8)(i) as a matter of law, having granted summary judgment in CMS's favor on that basis. See, e.g., Daniel Wiltz, M.D. and Family Healthcare Clinic, APMC, DAB No. 2864 at 12 (2018) (if one basis for sanction is established, CMS's action would be sustained "regardless of the existence of any additional bases for revocation"). For this reason, I do not decide whether CMS had a legal basis to revoke Petitioners' Medicare enrollment and billing privileges pursuant to 42 C.F.R. § 424.535(a)(14)(ii).

4. Petitioners' equitable and constitutional arguments are not a basis to reverse the revocation of their Medicare enrollment and billing privileges.

Once CMS determined that Petitioners submitted claims to Medicare that Dr. Butt could not have furnished on the claimed dates of service, CMS was authorized to revoke Petitioners' Medicare enrollment and billing privileges. 42 C.F.R. § 424.535(a)(8)(i). Petitioners' remaining arguments are not a basis to reach a different conclusion. Petitioner's other arguments fall into two broad categories: (1) Petitioners' due process and other constitutional rights were violated and (2) it is unfair or disproportionate to revoke Petitioners' Medicare enrollment and billing privileges because their actions were inadvertent and minor.

Petitioners allege they have been deprived of due process and other constitutional rights. P. Br. at 2, 9, 11-12, 17-18. I do not find any due process violation. A party receives due process when, as in the present case, the party has adequate notice and a reasonable opportunity to respond at the hearing level. See Green Hills Enters., LLC, DAB No. 2199 at 8‑9 (2008). Petitioners have not shown any actual prejudice to their ability to defend this case before me. In its reconsidered determination and its submissions before me, CMS provided clear statements of why it found Petitioners failed to comply with 42 C.F.R. § 424.535(a)(8)(i). Petitioners have submitted responsive arguments and evidence, which I have considered. Moreover, Petitioners' additional vague assertions of constitutional defects are beyond my authority to hear and decide. Administrative law judges are required to follow the Act and regulations and have no authority to declare statutes or regulations invalid. 1866ICPayday.com, L.L.C., DAB No. 2289 at 14 (2009)

Page 10

(administrative law judge "is bound by applicable laws and regulations and may not invalidate either a law or regulation on any ground, even a constitutional one.").

Finally, to the extent Petitioners argue that revocation of their 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 12-13 (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. at 13 (underscore omitted). Once CMS establishes a legal 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 Abdul Razzaque Ahmed, M.D., DAB No. 2261 at 19 (2009), aff'd, Ahmed v. Sebelius, 710 F. Supp. 2nd 167 (D. Mass. 2010) (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 Petitioners' Medicare enrollment and billing privileges pursuant to 42 C.F.R. § 424.535(a)(8)(i), the regulations do not authorize me to second-guess CMS's decision to revoke.

V. Conclusion

For the reasons explained above, I grant CMS's motion for summary judgment, deny Petitioners' cross-motion for summary judgment, and affirm the revocation of Petitioners' Medicare enrollment and billing privileges.

• 1. Petitioners are "suppliers" for purposes of the Medicare program. See Act § 1861(d) (42 U.S.C. § 1395x(d)); 42 C.F.R. § 400.202 (definition of supplier).
• 2. My conclusions of law appear as headings in bold italic type. My findings of fact appear in the supporting text.
• 3. The regulations define "locum tenens physician" as follows:
  
  a physician who substitutes in exigent circumstances for another physician in accordance with section 1842(b)(6)(D) of the Act and Pub. 100-04, Medicare Claims Processing Manual, Chapter 1, Section 30.2.11.
  
  42 C.F.R. § 411.351.
• 4. In light of the Supreme Court's recent decision in Azar v. Allina Health Services, 139 S. Ct. 1804 (2019), it is unclear what effect, if any, I should give to the MCPM's requirement to use the Q6 modifier. Nevertheless, the Act requires a locum tenens physician’s NPI to appear on claims submitted for Medicare services the locum tenens physician provides, Act, § 1842(b)(6)(D)(iv) (42 U.S.C. § 1395u(b)(6)(D)(iv)), and there is no dispute that Dr. Butt's NPI – rather than Dr. Kanwal's – appeared on the claims at issue.