Geriatric Consulting Group, PC, DAB CR5335 (2019)

DECISION

I sustain the determination of the Centers for Medicare & Medicaid Services (CMS) to revoke the Medicare enrollment and billing privileges of Petitioner, Geriatric Consulting Group, PC (Petitioner or GCG).

I. Background

CMS moved for summary judgment and Petitioner opposed the motion. With its motion CMS filed 47 proposed exhibits that it identified as CMS Ex. 1-CMS Ex. 47. CMS's exhibits include the written direct testimony of a witness, Ms. Karen Dowdy. CMS Ex. 45. In opposition Petitioner filed 11 proposed exhibits that it identified as GCG Ex. 1-GCG Ex. 11. Petitioner did not file the written direct testimony of any witness.

It is unnecessary that I decide whether the traditional criteria for summary judgment are met in this case. In the Acknowledgment and Pre-hearing Order that I issued on January 29, 2019, at paragraph 9, I directed each party to state in writing whether it intended to cross-examine any witness whose written direct testimony was filed by an opposing party. Petitioner did not file a request to cross-examine Ms. Dowdy.

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Furthermore, Petitioner offered no testimony on its behalf. An in-person hearing would serve no purpose inasmuch as there is no testimony for me to receive. I decide the case based on the parties' written exchanges. I receive their proposed exhibits into the record.

II. Issue, Findings of Fact and Conclusions of Law

A. Issue

The issue is whether CMS has the authority to revoke Petitioner's participation in Medicare and its Medicare billing privileges.

B. Findings of Fact and Conclusions of Law

This case is governed by a regulation, 42 C.F.R. § 424.535(a). The regulation enumerates circumstances pursuant to which CMS may revoke the Medicare participation and billing privileges of a supplier or a provider. These circumstances include "abuse of billing privileges." 42 C.F.R. § 424.535(a)(8). "Abuse of billing privileges" includes any claim submitted by a supplier or provider for services that could not have been furnished to an individual on the claimed date of service. 42 C.F.R. § 424.535(a)(8)(i). Examples of such abusive billing include, but are not limited to, claiming to have provided a service to an individual who was deceased on the claimed service date. 42 C.F.R. § 424.535(a)(8)(i)(A).

CMS contends that Petitioner abused its billing privileges by filing multiple claims for services rendered to nursing home residents that could not have been furnished on the claimed service dates. These reimbursement claims include claims for services allegedly provided to individuals who were deceased on the claimed service dates. The claims at issue also include claims for Medicare Part B services (essentially, outpatient services) for individuals who were hospitalized on the claimed service dates.

CMS offered overwhelming proof to support its assertions. It offered data analysis showing that between January 2013 and December 2016, Petitioner made 97 claims for services alleging service dates that were later than the dates of death for the 58 Medicare beneficiaries to whom Petitioner claimed to have provided care. CMS Ex. 45 at 2. Additional data analysis shows that from January 1, 2005, to October 31, 2017, Petitioner filed 240 reimbursement claims for 138 beneficiaries whose dates of death were earlier than the claimed service dates. Id. at 2; CMS Ex. 46.

Evidence offered by CMS includes in-depth analysis of 16 patient records requested from and supplied by Petitioner. CMS Ex. 45 at 2-3. In ten cases there exists no documentation for any services provided on the claimed service dates. Id. In five instances the records state affirmatively that practitioners saw Medicare beneficiaries on dates subsequent to the beneficiaries' dates of death. Id. at 3.

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CMS additionally offered evidence to prove that from January 1, 2005, until October 31, 2017, Petitioner made 19,574 claims for Part B Medicare services to beneficiaries for whom Part A inpatient hospital claims had been made on the claimed Part B service dates. CMS Ex. 45 at 3. Further analysis of 35 patient records established that Petitioner claimed to have provided Part B services to these individuals as nursing home residents on dates when these services could not have been provided as claimed due to these individuals being hospitalized on the claimed Part B service dates. Id. at 3-4.

CMS specifically based its determination to revoke Petitioner's Medicare participation and billing privileges on 18 claims by Petitioner that it provided services to eight specific beneficiaries who were deceased on the alleged service dates, and on ten claims by Petitioner that it provided Part B services to ten specific beneficiaries who were hospitalized on the alleged service dates. CMS Ex. 1 at 3-4. These allegedly improper claims constitute only a tiny percentage of the claims initially analyzed and that were determined to be similarly improper. However, they are more than ample to justify CMS's determination to revoke Petitioner's Medicare participation and billing privileges.

On its face 42 C.F.R. § 424.535(a)(8) does not require CMS to prove a pattern of improper claims in order to establish grounds for revocation of Medicare participation and billing privileges. The regulation states that revocation may be predicated on any claim for reimbursement submitted by a provider for a service that could not have been rendered on the claimed service date. CMS has, in its discretion, allowed some margin for error to suppliers and providers, concluding that it would revoke participation where there are "at least three" instances of abusive billing. 73 Fed. Reg. 36,448 at 36,455 (June 27, 2008).

Here, the evidence overwhelmingly establishes that Petitioner engaged in abusive billing more than three times and that evidence clearly justifies revocation of Petitioner's Medicare participation and billing privileges. As I have stated, the evidence offered by CMS proves that Petitioner submitted at least 18 claims for services that it allegedly provided to beneficiaries who were deceased on the alleged dates of service and at least ten claims for Part B services to beneficiaries who were hospitalized on the alleged dates of service. Moreover, these patently false claims are only a small portion of a much larger pool of suspect claims filed by Petitioner.

I find Petitioner's several arguments to be without merit. Petitioner's principal argument is that the specific claims that are the basis for CMS's determination to revoke represent only a tiny fraction of Petitioner's total claims for services. It contends that whatever errors may have occurred are mere bookkeeping errors or were the consequence of innocent confusion on the part of Petitioner's billing staff, who may have inadvertently filed claims on behalf of patients with names similar to those to whom Petitioner rendered legitimate services. It argues that it should not be penalized for what it contends

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are innocent and essentially harmless errors and should not be held accountable to what it asserts is "an unobtainable level of perfection." Petitioner's Opposition to Motion for Summary Judgment (Opposition) at 4.

Petitioner's contentions are no defense. There is no regulatory exception for improper claims resulting from inadvertent errors. Louis J. Gaefke, D.P.M., DAB No. 2554 at 7 (2013). The regulation does not require proof, for example, of an intent to file false claims or to defraud the Medicare program. Patrick Brueggeman, D.P.M., DAB No. 2725 at 9-11 (2016). Moreover, Petitioner's assertion that it filed claims based on mistaken patient identity has been addressed, and specifically rejected. Gaefke, DAB No. 2554 at 6-7.

Furthermore, there is no requirement in the regulation that improper claims add up to a certain percentage of total claims. It is unnecessary for CMS to prove that there is a pattern of improper claims or that the claims exceed a threshold percentage of a provider's or a supplier's total claims in order for there to be a basis to revoke Medicare participation. Gaefke, DAB No. 2554at 10. As I have stated, the regulatory basis for revocation is the presence of any improper claims and CMS, in its discretion, has allowed some leeway to suppliers and providers, revoking on the presence of three or more claims for services that could not have been provided.

Petitioner suggests additionally, that there must be a showing of fraud in order for CMS to have authority to revoke its Medicare participation and billing privileges. See Opposition at 8. That assertion is incorrect. There is no fraud requirement in 42 C.F.R. § 424.535(a)(8). Authority to revoke arises from the presentation of improper claims whatever the reason for those claims. The regulation allows revocation for inadvertent filing of improper claims even as it allows for revocation for fraudulent claims.

Petitioner also asserts that the analysis leading to the finding of improper claims is "woefully misguided, [and] in error ...." Opposition at 5. Petitioner asserts that these alleged errors can be discerned by reviewing a spread sheet – GCG Ex. 2 – that it offered as evidence. Id. But, it has offered no explanation of the meaning of this spread sheet or how it could even arguably be interpreted to contradict the evidence offered by CMS.

Petitioner flatly denies that the Medicare Part B claims that it filed were claims submitted for outpatient services allegedly performed while beneficiaries were hospital inpatients. Rather, according to Petitioner, it submitted these claims for "individuals during limited home health services, skilled nursing facility, hospice care, and long-term care," all covered by Medicare Part B. Opposition at 6. It offered little evidence to support this contention.1

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Petitioner also contends that the "sheer volume" of the evidence offered by CMS handicaps it and that volume of evidence limits its ability to respond to CMS's assertions. Opposition at 6. However, the specific claims and patient records on which CMS predicates its determination are records that come from Petitioner's own files. Petitioner – at the least – could have addressed those specific claims. It largely did not.

Finally, Petitioner contends that it provides services to high-risk geriatric patients in an underserved area. Opposition at 10-11. It contends additionally that it participates in a program that results in financial savings to Medicare. Id. at 11. Petitioner asserts that revocation of its participation and billing privileges will cause "immeasurable harm" to the patients that it serves. Id.

This argument is unavailing. First, there is nothing in the regulation that suggests that impact on patient services is a criterion that CMS must or even may consider in determining whether to revoke a provider's or a supplier's participation and billing privileges based on that provider's or supplier's submission of improper claims. Moreover, the issue of impact on patients is outside of the scope of review that I may exercise. My review authority is limited solely to deciding whether CMS's determination satisfies regulatory criteria, as it clearly does in this case. Meadowmere Emergency Physicians, PLLC, DAB No. 2881 at 8 (2018).

1. Petitioner contends that one beneficiary was, in fact, a hospice patient in a skilled nursing facility on the dates when CMS contends that she was hospitalized. Opposition at 6; GCG Ex. 7; GCG Ex. 8. But, even giving Petitioner the benefit of the doubt as to this beneficiary, that does not refute CMS’s evidence as to nine other beneficiaries for whom Petitioner filed claims for Part B services while those beneficiaries were hospitalized. CMS Ex. 1 at 3-4. Petitioner also claims that an additional beneficiary "could not have been in the hospital on dates 6/27/2016 to 7/30/2017 as alleged ...." without explaining that assertion or the evidence on which it relies. Opposition at 6.
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