Trishwant Garcha, MD, DAB CR5938 (2021)

DECISION

I affirm the decision of the Centers for Medicare & Medicaid Services (CMS) revoking the billing privileges of the Petitioner, Trishwant Garcha, MD.  I grant summary judgment in favor of CMS.   

I. Jurisdiction

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

II. Procedural Background

By letter dated November 21, 2018, CMS revoked, effective December 21, 2018, the Medicare billing privileges of Dr. Garcha (Petitioner), who was the “reassignment and ordering provider” for Carolina Neurology, PA, of which he was the sole owner.”  Ex. 1, Attachment 1 at 1;1  CMS Ex. 5 at 1.

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On January 18, 2019, Petitioner filed a Request for Reconsideration.  Ex. 1, Attachment 2.  On January 24, 2019, Petitioner submitted argument in support of his Request for Reconsideration.  Ex. 1, Attachment 3.

On April 29, 2019, CMS concluded there was no error made in the determination to revoke Petitioner’s Medicare billing privileges.  Ex. 1a.  CMS issued an unfavorable reconsidered determination upholding the revocation. Therefore, CMS decided not to grant Petitioner “access to the Medicare Trust Fund (by way or issuance) of a Medicare number.”  Id. at 6.  

On June 28, 2019, Petitioner filed a request for an Administrative Law Judge (ALJ) Hearing.  Ex. 1.  On July 10, 2019, an Acknowledgement and Pre-Hearing Order (Pre Hearing Order) was issued setting the procedures for this case.  Exs. 2, 2a, 2b.

Both parties have filed submissions and briefs.  Exs. 4-7.

Neither party filed a request to cross-examine witnesses.

The case transferred to the undersigned on July 9, 2021.  Ex. 8.

This record in this matter is closed, and the case is ready for decision.

III. Law

42 C.F.R. § 424.535(a)(10)

42 C.F.R. § 424.516(f)

42 C.F.R. § 424.516(f)(2)(i)(B)

IV. Issue

Whether CMS’ determination to revoke the Medicare billing privileges of Petitioner and not to grant Petitioner access to the Medicare Trust Fund (by way or issuance) of a Medicare number was correct. 

V. Admission Of Evidence And Testimony

CMS filed six proposed exhibits (CMS Exs. 1-6) and Petitioner filed seven proposed exhibit (P. Exs. 1-7). 

All exhibits are admitted.

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VI. Summary Of Testimony And Evidence

A. CMS’s case

On September 1, 2017, CMS Contractor AdvanceMed (AdvanceMed) sent Petitioner a written request for documentation related to Medicare-covered items/services furnished to 11 Medicare beneficiaries. CMS Ex. 1. AdvanceMed requested the documentation be provided by October 1, 2017.  Id. at 3. Receiving no response, AdvanceMed sent a second request on October 2, 2017, giving Petitioner an additional 15 days to comply with the documentation request and advising Petitioner that failure to comply could result in denial of claims and revocation of Petitioner’s Medicare billing privileges.  CMS Ex. 2.  

Subsequently, AdvanceMed faxed to Petitioner a third request on December 12, 2017, including in the transmission copies of the previous requests.  CMS Ex. 3.  The third request specified the requested documentation must be supplied within 24 hours.  Id. at 2.  

Receiving no response, AdvanceMed sent a “fourth and final request” for the documentation on December 23, 2017, via FedEx Hand Delivery and facsimile to Petitioner at two separate addresses. CMS Ex. 4 at 1.  

By letter dated November 21, 2018, CMS Contractor Palmetto GBA notified Petitioner that his Medicare billing privileges would be revoked effective December 21, 2018, based on his failure to respond to AdvanceMed’s documentation requests.  CMS Ex. 5. 

Petitioner requested reconsideration of the revocation decision as set forth above.  CMS Ex. 6.  On April 29, 2019, CMS issued an unfavorable reconsidered determination.  P. Ex. 1.  

On June 28, 2019, Petitioner filed a request for an ALJ hearing.  Ex. 1.  CMS responded and filed a Motion for Summary Judgment.  Ex. 4. 

B. Petitioner's case

Petitioner argued Carolina Neurology, P.A. is an independently owned and operated practice based in Statesville, North Carolina.  Dr. Garcha is the resident physician at Carolina Neurology.  He is board-certified in Neurology, Clinical Neurophysiology, and Vascular Neurology.  He has also completed his fellowship training in Neuromuscular Diseases and Clinical Neurophysiology with Epilepsy and Sleep.  Dr. Garcha has practiced since 1995 and has over 20 years of experience.  In addition, Dr. Garcha has been enrolled with Medicare for 20 years with a positive record of compliance.  P. Ex. 7 at 1.

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Over the years, Dr. Garcha’s office received and responded to record request letters for Medicare beneficiaries for audit purposes.  In addition, his office received and responded to record requests from several private insurance companies.  Dr. Garcha’s office responded to those record requests when received by submitting the medical records, documents, and information requested.  P. Ex. 7 at 1. 

Following receipt of the records request letters from AdvanceMed, Dr. Garcha alleged his staff attempted on numerous occasions to contact representatives at AdvanceMed for assistance and clarification regarding the records request.  Dr. Garcha alleged the staff never received a call back from AdvanceMed, despite their repeated messages requesting a return call and assistance.  Dr. Garcha alleged that Brenda Brown, an Office Medical Assistant in Dr. Garcha’s office, told him she submitted records to AdvanceMed by fax in response to the records request letters.  P. Ex. 7 at 1-2. 

In May 2018, Dr. Garcha learned that Medicare was going to recoup and recover reimbursements he received for Medicare claims for the 11 patients under review.  Medicare recouped payment for these claims from Medicare reimbursement due to Dr. Garcha in May, June and July 2018.  The effect of this recoupment was that Dr. Garcha was not paid for the services provided to the 11 patients under review. Following the notice of the recoupment and the actual recovery of the reimbursement paid for claims associated with those beneficiaries, Dr. Garcha believed the matter was closed.  Therefore, Dr. Garcha did not submit records or follow up on the record requests, even though he possessed and maintained the records.  P. Ex. 7 at 2.

Six months after the initiation of the claims recoupment, Dr. Garcha received the November 21, 2018 notice of revocation of his Medicare billing privileges from Palmetto GBA.  The reason stated for the revocation was the alleged failure to document or provide access to documentation.  Following the receipt of the notice of revocation, Dr. Garcha alleged he submitted a request for reconsideration.  As part of the reconsideration, Dr. Garcha alleged he provided copies of the medical records for the 11 beneficiaries that were the subject of AdvanceMed’s record request letters.  P. Ex. 7 at 2-3. 

Dr. Garcha believed “that at least some of the records were provided . . .”  (Ex. 1, Attachment 3 at 2) and did not learn otherwise until CMS began the recoupment of the Medicare claims for the beneficiaries subject to the records requests.  Petitioner’s own argument states, “AdvanceMed provided that it does not have a record of receiving any records from Dr. Garcha’s office.”  Id.

Dr. Garcha argued he did not fail to provide “access” to the requested records and that he “maintained the patient records and had them available for access and review.”  Id.

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Petitioner argued that I should enter judgment for Petitioner and remand the matter for CMS to apply its discretion and issue a decision reflecting that CMS applied its discretion in making a revocation decision. Petitioner’s Brief at 9.

VII. Analysis Of Evidence And Testimony

Congress authorized the Secretary to establish a process for the enrollment of "suppliers" in the Medicare program.  42 U.S.C. § 1395cc(j)(l)(A).  Physicians are "suppliers."  42 C.F.R. § 400.202.  The enrollment process includes identification of a supplier, identification and confirmation of the supplier's practice locations, and granting the supplier Medicare billing privileges.  42 U.S.C. § 1395cc(j)(l)(A); 42 C.F.R. § 424.502 (definition of “enroll/enrollment”).  

CMS may revoke a supplier's billing privileges for a host of reasons.  42 C.F.R. § 424.535(a).  Among those reasons is failure to comply with Medicare requirements for maintaining and sharing documentation related to furnishing of Medicare-covered items and services.  42 C.F.R. § 424.535(a)(l0), incorporating 42 C.F.R. § 424.516(f).  The latter regulation requires Medicare-enrolled suppliers and physicians to maintain such documentation for seven years after dates of service and to provide access to the documentation upon request from CMS or a CMS contractor.  A supplier or physician who fails to comply with these requirements is subject to revocation of enrollment for one year for each act of noncompliance. 42 C.F.R. § 424.535(a)(10)(ii).

In his Request for Hearing, Petitioner stated that he disagrees with CMS' Reconsideration Decision "insofar as [it] did not accept the arguments set forth in the Reconsideration Letter dated January 24, 2019."  Ex. 1 at 1-2. The latter document was filed as "Attachment 3" to the Request for Hearing and was also submitted and marked as CMS Exhibit 6.  Dr. Garcha’s primary argument made therein (and apparently incorporated into the Request for Hearing before this Tribunal) was that Petitioner complied with the regulatory requirements concerning retention of records and provision of access to records. CMS Ex. 6 at 2-3.  Implicitly advocating a theoretical definition of “access,” Petitioner argued he maintained the records AdvanceMed had requested and he provided access in that he "had [the documents] available for access and review."  Id. at 2.   

Dr. Garcha argued he did not fail to provide access to the requested records, he maintained the patient records and had them available “for access and review.”  Ex. 1, Attachment 3 at 2.  Petitioner refutes his own argument, also stating “AdvanceMed provided that it does not have a record of receiving any records from Dr. Garcha’s office.”  Id.  If AdvanceMed had no record of receiving any records from Dr. Garcha, then they were not submitted. 

The regulation is not theoretical, providing simply and broadly that access to documents must be granted "upon the request of CMS or a Medicare contractor." 42 C.F.R. 

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§ 424.516(f)(2)(i)(B).  In this case, the CMS contractor requested the documentation repeatedly, to no avail. Petitioner's repeated failures to respond amounted to a failure to provide access by any common sense definition, as recognized by the Departmental Appeals Board.  See, e.g., George M. Young, M.D., DAB No. 2750 at 8 (2016)(failure to produce requested documents by the date specified in CMS request amounted to a failure to provide access to documents).

Further, none of the factual assertions made in Petitioner's Reconsideration Letter raises a material, factual dispute as to whether CMS was authorized to revoke Petitioner's Medicare billing privileges. CMS Ex. 6.  As set forth above, beginning in September 2017, AdvanceMed requested specific documentation regarding Medicare-covered services/items furnished to 11 Medicare beneficiaries. CMS Exs. 1-4.  In his Reconsideration Letter, Petitioner did not deny he or someone acting on his behalf received the requests for documentation.  Nor did he deny claiming Medicare payments related to items or services furnished to the beneficiaries identified by AdvanceMed.  Petitioner did state unidentified staff "believe[d] at least some of the records were provided . . . in response to the [request] letters." CMS Ex. 6 at 2.  However, this assertion is immaterial to the question of whether CMS was authorized to revoke Petitioner's billing privileges.  George M. Young, M.D., DAB No. 2750 at 9-10 (declining to address sufficiency of certain belatedly-produced documents when Petitioner had not asserted he fully complied with the regulation by providing all requested documents in timely fashion).

Similarly immaterial are Petitioner's assertions that unidentified office staff "attempted on numerous occasions to contact representatives at AdvanceMed for assistance and clarification regarding the record requests" (CMS Ex. 6 at 2) and that "during the time that record requests were issued and pending, [his] office experienced staffing issues . . . ."  Id. at 5.  Assuming the factual assertions about staff to be true, they do not excuse Petitioner's failure to comply with the regulatory requirements for maintaining and sharing records.  As a Medicare-enrolled physician, Petitioner was at all times responsible for complying with Medicare requirements and also responsible for the actions (or inactions) of office staff.  Norpro Orthotics & Prosthetics, Inc., DAB No. 2577 at 6 (2014).

In addition to making immaterial factual assertions about the failure to respond to record requests, Petitioner argued CMS should have exercised discretion to avoid revoking his billing privileges.  CMS Ex. 6 at 3-6.  In support of this argument, Petitioner listed a number of essentially equitable or policy considerations, including purported harm to patients who would need to see other doctors besides Petitioner (id. at 4), CMS' ability to recover monies paid for the undocumented items/services (id.), and the illness and death of Petitioner's ex-wife. Id. at 5.  These factors, Petitioner argued, would support reversal of the revocation.  Id. at 6.  In the alternative, Petitioner suggested that alternatives to 

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revocation be considered or that, if revocation remains, CMS abbreviate the duration of the loss of billing privileges to less than one year.  Id. at 5-6.

I need not address the above in order to grant summary judgment in CMS' favor.  ALJs may not grant equitable relief.  Amber Mullins, N.P., DAB No. 2729 at 6 (2016).  Further, I need not, and may not, inquire as to CMS' exercise of discretion, because review is limited to the issue of whether there was a basis to revoke. George M. Young, M.D., DAB No. 2750 at 8.  In this case, there is no issue of disputed material fact as to what led to the revocation.  Petitioner failed repeatedly to comply with the contractor's written requests for documentation, thus failing to comply with 42 C.F.R. § 424.516(f)(2)(i)(B), and failing to provide access, as required by 42 C.F.R. § 424.535(a)(10).  Dr. Garcha further stated that, following the recoupment, he believed that the matter was closed. He then concedes that he did not submit or follow up on the records, even though he possessed and could have submitted them for review.  P. Ex. 7 at 2.  

I am unable to review the length of Petitioner’s one-year reenrollment bar.  P. Ex. 2 at 2;  42 C.F.R. § 424.535(c);2  Vijendra Dave, M.D., DAB No. 2672 at 11 (2016) (providing CMS’s determination of reenrollment bar length not reviewable). 

Summary Judgement

An ALJ may grant summary judgment if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law.  Senior Rehab. and Skilled Nursing Ctr., DAB No. 2300 at 3 (2010).  Although the Federal Rules of Civil Procedure (FRCP) are not binding in an administrative proceeding conducted pursuant to 42 C.F.R. Part 498, the principles of FRCP 56 (summary judgment) supply guidance.  Id.  To defeat an adequately supported summary judgment motion, the non-moving party must furnish evidence of a dispute concerning a material fact.  Id.  

Petitioner has failed to furnish evidence of a dispute concerning a material fact.

As stated in the Pre-Hearing Order, “An in-person hearing to cross-examine witnesses will be necessary only if a party files admissible, written direct testimony, and the opposing party asks to cross-examine.  In that event, I will convene a pre-hearing conference to discuss hearing procedures and scheduling.”  Ex. 2 at 6.  Neither party requested the opportunity to cross-examine any witness. An in-person hearing is therefore unnecessary.

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VIII. Conclusion

The undisputed facts show that Petitioner, Trishwant Garcha, MD., failed repeatedly to comply with the contractor's written requests for documentation, thus failing to comply with 42 C.F.R. § 424.516(f)(2)(i)(B) and failing to provide access, as required by 42 C.F.R. § 424.535(a)(10).  CMS’ Motion for Summary Judgment is granted, and I affirm the revocation of Petitioner's billing privileges pursuant to 42 C.F.R. § 424.535(a)(10).

WHEREFORE, evidence having been read and considered, it be and is hereby ORDERED as follows:

a. CMS’s Motion for Summary Judgment be and is hereby GRANTED; and

b. CMS’s determination to revoke the billing privileges of Petitioner, Trishwant Garcha, MD, be and is hereby AFFIRMED.

1. References to Exhibits (Exs.) are to docket numbers for the filings in the Departmental Appeals Board (DAB) Electronic Filing System (E-File) case record.
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2. The regulation provides that a reenrollment bar “lasts a minimum of 1 year, but not more than 10 years,” with limited exceptions for greater lengths of time. 42 C.F.R. § 424.535(c)(1)(i). Petitioner’s one year reenrollment bar is the regulatory minimum.
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