Lifetime Medical Equipment and Supplies, LLC, DAB CR6043 (2022)

DECISION

Petitioner, Lifetime Medical Equipment and Supplies, LLC, is a supplier of durable medical equipment, prosthetics, orthotics, and supplies (DMEPOS), located in The Colony, Texas.  Until January 17, 2020, Petitioner participated in the Medicare program as a supplier of services.  The Centers for Medicare & Medicaid Services (CMS) has revoked its Medicare supplier number, and Petitioner appeals.

I find that CMS properly revoked Petitioner's supplier number.  As of January 17, 2020, the supplier was not operational to furnish Medicare-covered items or services; it was neither staffed nor accessible.

Background

Until its Medicare supplier number was revoked, effective January 17, 2020, Petitioner participated in the Medicare program as a supplier of DMEPOS.  See 42 C.F.R. § 424.57.  In a letter dated May 19, 2020, the Medicare contractor, National Supplier Clearinghouse (a division of Palmetto GBA), notified Petitioner that its Medicare supplier number was revoked retroactively, pursuant to 42 C.F.R. §§ 405.800; 424.57(e); 424.535(a)(5); and

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424.535(g).  The letter reported that the contractor attempted site visits on January 17 and 21, 2020.  The business was closed during the supplier's posted hours of operation.  The contractor therefore determined that Petitioner was no longer operational to furnish Medicare-covered items or services and that it violated all supplier standards listed in 42 C.F.R. § 424.57(c).  Pursuant to 42 C.F.R. § 424.535(g), the revocation became effective the date CMS determined that the supplier was no longer operational, January 17, 2020.  CMS Ex. 3.

Petitioner sought reconsideration.  CMS Ex. 4 at 2.  In a reconsidered determination, dated June 16, 2020, a contractor hearing officer affirmed the revocation of Petitioner's billing privileges.  CMS Ex. 6.  Petitioner now appeals that determination pursuant to 42 C.F.R. § 424.545.

Although CMS has moved for summary judgment, I find that this matter may be decided on the written record, without considering whether the standards for summary judgment are satisfied.  In my initial order, I instructed the parties to list all proposed witnesses and to submit their written direct testimony.  Acknowledgment and Pre-hearing Order at 3, 5 (¶¶ 4(c)(iv), 8) (July 17, 2020).  I noted that each party has the right to cross-examine any witness for whom the opposing party offers written direct testimony; however, the party must affirmatively indicate that it wishes to do so.  Acknowledgment at 5 (¶ 9).  I pointed out that a hearing would be necessary only if a party files admissible, written direct testimony, and, in compliance with the order, the opposing party asks to cross-examine.  Acknowledgment at 6 (¶ 10).

Petitioner lists no witnesses.  CMS lists one witness and provides a written declaration.  Petitioner has not asked to cross-examine CMS's witness.  Because no witnesses will be cross-examined, an in-person hearing would serve no purpose.  This matter may therefore be decided based on the written record.1

With its motion and brief (CMS Br.), CMS submits seven exhibits (CMS Exs. 1-7).  Petitioner responds with a written argument (P. Br.).

In the absence of any objections, I admit into evidence CMS Exs. 1-7.

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Discussion

CMS properly revoked the supplier's billing privileges, because the facility was not operational; it was not staffed or accessible during its posted hours of operation.2

Requirements for a DMEPOS supplier's Medicare participation.  To receive Medicare payments for items furnished to a Medicare-eligible beneficiary, a supplier of medical equipment and supplies must be enrolled in the Medicare program and must have a supplier number issued by the Secretary of Health and Human Services.  Social Security Act § 1834(j)(1)(A); 42 C.F.R. § 424.505.  To keep that number, the supplier must be operational and must meet the standards set forth in 42 C.F.R. § 424.57(c).  CMS may revoke its billing privileges if it fails to do so.  42 C.F.R. §§ 424.57(c)(1), (e); 424.535(a)(1), (5).

To be operational, the supplier must, among other requirements, have a qualified physical practice location, be open to the public, and be properly staffed, equipped, and stocked to furnish items and services.  42 C.F.R. § 424.502.

The supplier's location must be accessible during reasonable business hours.  The supplier must permit CMS or its agents to conduct on-site inspections to ascertain its compliance with governing regulations.  42 C.F.R. § 424.57(c)(7) and (8).  Where, as here, a contractor's representative finds the facility closed during its posted hours of operation, the supplier does not meet the requirements of section 424.57(c), and CMS may appropriately revoke its billing privileges.  Ita Udeobong, DAB No. 2324 (2010); see 42 C.F.R. § 424.535(a)(5)(ii) (authorizing CMS to revoke billing privileges if the supplier fails to satisfy any Medicare enrollment requirements).

Here, Petitioner's posted hours of operation were Monday through Friday, 8:00 a.m. to 3:00 p.m., except for the lunch hour (12:00 to 1:00 p.m.).  CMS Ex. 2 at 3, 13.  On Friday, January 17, 2020, at 1:49 p.m., the contractor's investigator, Larry W. Seals, went to Petitioner's practice location.  He knocked on the door several times over a period of about ten minutes.  No one came to the door.  No one entered or left the office.  No sign indicated why the business was closed during its posted hours of operation.  CMS Ex. 2 at 2, 7; CMS Ex. 7 at 3 (Seals Decl.).

On Tuesday, January 21, 2020, Investigator Seals returned to the practice location, arriving at approximately 1:59 p.m.  Again, the door was locked, and the business was closed.  No sign indicated why the business was closed during its posted hours of

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operation.  The investigator knocked repeatedly, but no one answered.  CMS Ex. 2 at 2, 7; CMS Ex. 7 at 3 (Seals Decl.).

Petitioner insists that it is a legitimate business, criticizes the investigator's annual "surprise" inspections as "obsessive," points out that the business has a single owner (employee), and suggests that it cannot satisfy both Supplier Standard 7 (requiring a physical facility that is open and accessible during posted business hours) and Supplier Standard 12 (making the supplier responsible for the delivery of Medicare-covered items to beneficiaries), which, Petitioner maintains, "are in direct conflict."  P. Br..

I do not find that Standards 7 and 12 are in conflict.  The regulations allow suppliers flexibility in determining their hours of operation.  Petitioner was free to set those hours in a way that afforded its single staff member time to make deliveries or engage in other activities that required him to be away from the physical facility.  However, having posted the hours of operation, Petitioner was required to be staffed and accessible during that time.  Because it was not staffed and accessible on January 17 and 21, 2020, it was not in compliance with section 424.57(c)(7), and CMS justifiably revoked its billing privileges under section 424.57(e).  Ortho Rehab Designs Prosthetics & Orthotics, Inc., DAB No. 2591 at 6 (2014).

Conclusion

Because the facility was not operational, accessible, and staffed during its listed hours of operation, I sustain CMS's revocation of Petitioner's supplier number, effective January 17, 2020.

1. Although Petitioner attacks the contractor for its enforcement of the regulations, it has not furnished admissible evidence establishing any dispute concerning a material fact.  Thus, even if Petitioner had asked to cross-examine CMS's witness (which it did not), an in-person hearing would be unnecessary because CMS meets the criteria for summary judgment.  As the following discussion shows, this case presents no genuine issue of material fact, and CMS is entitled to judgment as a matter of law.  Bartley Healthcare Nursing & Rehab., DAB No. 2539 at 3 (2013) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322-25 (1986)); Ill. Knights Templar Home, DAB No. 2274 at 3-4 (2009), and cases cited therein.
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2. I make this one finding of fact/conclusion of law.
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