Evelyne M. Davidson, M.D., DAB CR5231 (2019)

DECISION

The Centers for Medicare & Medicaid Services (CMS), through an administrative contractor, revoked the Medicare enrollment and billing privileges of Evelyne M. Davidson, M.D. (Dr. Davidson or Petitioner) because Dr. Davidson’s practice location on file was not operational under 42 C.F.R. § 424.535(a)(5), and she did not timely report a change in practice location under 42 C.F.R. § 424.535(a)(9).  Dr. Davidson requested a hearing to dispute the revocation.  Based on the evidence of record, I find that Dr. Davidson did not provide CMS with the locations where she rendered services to Medicare beneficiaries and instead provided an address to a United Parcel Service (UPS) store where she receives mail.  Therefore, I affirm CMS’s determination to revoke Dr. Davidson’s Medicare billing privileges because her practice location on file with CMS was not operational.

I. Background

Dr. Davidson is a physician and enrolled in the Medicare program as a supplier.  CMS Exhibit (Ex.) 1 at 1; 42 C.F.R. § 1395x(d), (r) (for Medicare program purposes, a “supplier” furnishes services and supplies under Medicare.  The term supplier applies to physicians or other practitioners).

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In an April 25, 2016 initial determination, a CMS administrative contractor revoked Dr. Davidson’s Medicare enrollment and billing privileges.  CMS Ex. 4.  The effective date of the revocation was February 1, 2016.  The reasons for revocation were the following:

42 CFR § 424.535(a)(5) On Site Review

You are no longer operational to furnish Medicare covered items or services.  An on-site review conducted on February 1, 2016 at 234 Morrell Road 113, Knoxville, TN 37919-5876 confirmed that you are non-operational.

42 CFR § 424.535(a)(9) Failure to Report

You are no longer operational to furnish Medicare covered items or services.  An on-site review conducted on February 1, 2016 at 234 Morrell Road 113, Knoxville, TN 37919-5876 confirmed that you are non-operational.  You did not notify the Centers for Medicare & Medicaid Services of this change of practice location as required under 42 CFR § 424.16.

CMS Ex. 4 (emphasis in original).  The initial determination barred Dr. Davidson from reenrollment in the Medicare program for two years.  CMS Ex. 4 at 2.

Subsequently, the CMS administrative contractor received a Corrective Action Plan from Dr. Davidson listing her practice location as the corporate address of the hospice care provider for which she rendered services.  CMS Ex. 5.  The administrative contractor returned the Corrective Action Plan, advising Dr. Davidson that the Corrective Action Plan process was not available for revocations based on subsections 424.535(a)(5) and (a)(9).  CMS Ex. 6.  Dr. Davidson also filed an application to re-enroll, but her application was rejected due to the two-year reenrollment bar imposed on February 1, 2016.  CMS Ex. 7.

On June 20, 2016, the CMS administrative contractor received a request from Dr. Davidson to reconsider the revocation.  Petitioner stated the following:

The practice location address on the request I submitted to CMS to have my provider number reinstated was 234 Morrell Rd, Suite 113, Knoxville, TN 37919, which is where I receive my personal and professional mail.  This address was listed because I had no specific office from which I was working.  Therefore, a current address where I could be contacted was submitted to CMS in a timely manner.

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I assure you this situation was totally due to human error as I simply forgot to notify PECOS of a change of address when I left my previous employment with the nursing home facilities and began working under the current contractual relationship as a Hospice physician.

CMS Ex. 8 at 4.

On August 12, 2016, a hearing officer with the CMS administrative contractor issued an unfavorable reconsidered determination that stated:

Supplier, Evelyne Davidson, MD has provided no evidence to show that the practice location found to be nonoperational upon site visit conducted February 1, 2016 was in fact operational contradicting the findings of that site visit and one basis for revocation.  In fact, Dr. Davidson states in her reconsideration request that she that [sic] 234 Morrell Road 113, Knoxville, TN 37919-5876 previously provided was never a practice location as indicated on the change of information CMS-855I application submitted and approved on August 14, 2014.

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DECISION:
Under review no evidence was identified to show that the supplier was operational at the practice location 234 Morrell Road 113, Knoxville, TN 37919-5876 upon site visit conducted on February 1, 2016 or that the supplier submitted a change of information application to provide updated practice location information prior to the revocation determination issued on April 25, 2016.

CMS Ex. 9 at 2.

On October 10, 2016, Petitioner requested a hearing.  In the hearing request, Petitioner asserted that the she was “at all times operational” but made a “clerical error” by listing her “personal address as her ‘business address’” because she had no fixed practice location.  Hearing Request at 4-5.

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This case was originally assigned to Administrative Law Judge Carolyn Cozad Hughes.  Judge Hughes issued an Acknowledgment and Pre-Hearing Order (Order) on October 18, 2016.  In response to the Order, CMS filed a motion for summary judgment and brief in support (CMS Br.), and twelve proposed exhibits (CMS Exs. 1-12).  Petitioner filed a response brief (P. Br.) and five proposed exhibits (P. Exs. 1-5), including the written declaration of Petitioner.

On November 20, 2018, the Director of the Civil Remedies Division notified the parties that he had transferred this case to me.

II. Decision on the Record

Petitioner did not object to any of CMS’s proposed exhibits.  Order ¶ 7; Civil Remedies Division Procedures (CRDP) § 14(e).  Therefore, I admit CMS Exs. 1-9 into the record.

CMS did not object to any of Petitioner’s proposed exhibits.  However, P. Exs. 2-4 are duplicative and excluded.  CRDP § 14(a).  I admit P. Exs. 1 and 5 into the record.

Judge Hughes directed the parties to submit written direct testimony for each proposed witness.  Order ¶ 8.  CMS did not submit any written direct testimony.  Petitioner submitted her own declaration; however, CMS did not request to cross-examine Petitioner.  The Order stated that an in-person hearing would only be necessary if the opposing party requested an opportunity to cross-examine a witness.  Order ¶ 10; CRDP § 16(b).  Because CMS did not request to cross-examine Petitioner, I decide this case based on the written record.  Order ¶¶ 10-11; CRDP § 19(b), (d).

III. Issue

Whether CMS had a legitimate basis to revoke Petitioner’s Medicare enrollment and billing privileges.

IV. Jurisdiction

I have jurisdiction to decide this issue.  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 Analysis1

The Secretary of Health and Human Services (Secretary) has the authority to create regulations that establish enrollment standards for providers and suppliers.  42 U.S.C.

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§ 1395cc(j).  The Secretary promulgated regulations that require prospective providers and suppliers to file an enrollment application with CMS and meet certain requirements in order to receive Medicare billing privileges.  42 C.F.R. §§ 424.500, 424.505, 424.510, 424.530.  Further, enrolled providers and suppliers periodically revalidate their enrollment information with CMS and report to CMS changes in information provided on their enrollment applications.  42 C.F.R. §§ 424.515, 424.516.

The Secretary’s regulations provide that if an enrolled provider or supplier is not in compliance with enrollment requirements or other rules related to providers and suppliers, then CMS may revoke that provider’s or supplier’s Medicare billing privileges.  42 C.F.R. § 424.535.  The Secretary promulgated a regulation that requires providers and suppliers to be operational.  42 C.F.R. § 424.535(a)(5).  In its discretion, CMS or its contractors may conduct a site visit to determine whether a provider or supplier is in compliance with Medicare enrollment requirements.  42 C.F.R. § 424.517.  The Secretary also promulgated regulations requiring physicians to report a change in practice location within 30 days of the change.  42 C.F.R. § 424.516(d)(1)(iii).  A failure to do so may result in revocation of Medicare enrollment and billing privileges.  42 C.F.R. § 424.535(a)(9).

1. Petitioner submitted an application to change her enrollment information and informed CMS that her practice location was at 234 Morrell Road 113, Knoxville, Tennessee; however, Petitioner actually rendered all services to Medicare beneficiaries at their residences, and a site inspection of the address Petitioner provided to CMS as her practice location was a UPS store.

On June 25, 2014, Petitioner electronically submitted a CMS‑855I Medicare enrollment application, on which she indicated her practice location was “234 Morrell Rd 113, Knoxville, Tennessee 37919-5876” and indicated that this practice location was a “Private Practice Office Setting.”  CMS Ex. 1 at 4-5.  Petitioner did not enter any further information regarding her practice location other than the address provided.  In signing the CMS‑855I form, Petitioner certified that she had read the contents of the application and that it was “true, correct, and complete.”  CMS Ex. 1 at 8.  The CMS administrative contractor reviewed the CMS‑855I enrollment application and on August 14, 2014, sent Petitioner a letter approving her change of information.  CMS Ex. 2.

On February 1, 2016, an inspector with a CMS administrative contractor attempted a site visit at Petitioner’s practice location address on file with CMS:  234 Morrell Road 113, Knoxville, Tennessee.  The site inspector noted that “MD not at this location.  UPS Store occupies [building] now.”  The site inspector took photographs of the exterior of the UPS store.  CMS Ex. 3.

Petitioner admits that she does not render services at the 234 Morrell Road address, but rather furnishes hospice care to patients in their homes. P. Br. at 2-3; CMS Ex. 8 at 4. 

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Petitioner further admits that the 234 Morrell Road address is a UPS store where she receives her personal and professional correspondence and was never her practice location.  CMS Ex. 8 at 4; P. Br. at 2.

2. CMS had a legitimate basis to revoke Petitioner’s Medicare enrollment and billing privileges under 42 C.F.R. § 424.535(a)(5) because the address that Petitioner identified as her practice location was not operational.

CMS may revoke a supplier if, upon an on-site review, CMS determines that the provider or supplier is no longer operational to furnish Medicare-covered items or services.  42 C.F.R. § 424.535(a)(5)(i).  The term “operational” means:

the provider or supplier has a qualified physical address location, is open to the public for the purpose of providing health care related services, is prepared to submit valid Medicare claims, and is properly staffed, equipped, and stocked (as applicable, based on the type of facility or organization, provider or supplier specialty, or the services or items being rendered), to furnish these items or services.

42 C.F.R. § 424.502 (definition of Operational).  In order “[t]o be ‘operational’ in accordance with the definition in section 424.502, a provider [or supplier], among other things, must have a ‘qualified physical practice location’ that is ‘open to the public for the purpose of providing health care related services.’”  Viora Home Health, Inc., DAB No. 2690 at 7 (2016).  A provider’s or supplier’s qualified physical practice location is the provider’s or supplier’s address that is on file with CMS at the time of a site visit.  Foot Specialists of Northridge, DAB No. 2773 at 8-10 (2017).  CMS has explained, “the primary purpose of an unannounced and unscheduled site visit is to ensure that a provider or supplier is operational at the practice location found on the Medicare enrollment application.”  76 Fed. Reg. 5862, 5870 (February 2, 2011) (emphasis added).

In the present case, Petitioner admits that the 234 Morrell Road address listed as her practice location on the Form CMS‑855I is not (and has never been) her practice location.  Petitioner nonetheless argues that she “was at all relevant times ‘operational’” because she was working for a corporate hospice provider to provide patient home-based hospice services and the corporate hospice provider was “open to the public, prepared to submit valid Medicare claims, and properly staffed.”  Petitioner asserts she made a “clerical error” of listing her business P.O. Box because she had no fixed practice location.  P. Br. at 4.

The CMS‑855I enrollment form requires suppliers disclose each practice location where the supplier renders services to Medicare beneficiaries.  The form permits a provider or supplier to provide a home address if the provider or supplier only renders services in

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patients’ homes.  Specifically, in Section 4, Subsection C, the form instructs, among other things:

Complete this section for each of your practice locations where you render services to Medicare beneficiaries.

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Each practice location must be a specific street address as recorded by the United States Postal Service.  Do not report a P.O. Box.

If you only render services in patients’ homes (house calls), you may supply your home address in this section if you do not have an office.  In Section 4H, explain that this address is for administrative purposes only and that all services are rendered in patient’s homes.

CMS Ex. 10 at 4 (emphasis added).  Further down in Subsection D, the enrollment form directs the applicant to “[l]ist the city/town, State, and ZIP code for all locations where health care services are rendered in patients’ homes.”  CMS Ex. 10 at 6.

The application is clear that the practice locations that must be disclosed are ones where Petitioner actually renders services to Medicare beneficiaries, and clearly indicates that Petitioner cannot report a P.O. Box.  It is also explicit that if Petitioner only renders services in patient’s homes, she was to supply her home address and list the city/town, state, and zip code of each location where she rendered services in patient’s homes.  CMS Ex. 10.

There is no dispute that 234 Morrell Road is a UPS store and not a location suitable for a medical practice location.  Petitioner asserts that she made a mere “clerical error” in listing the 234 Morrell Road address as her practice location.  However, Petitioner’s “clerical error” does not constitute a defense to Petitioner having incorrectly reported her practice location.  While Petitioner attempts to downplay her actions by attributing it as a minor “clerical error,” it is ultimately Petitioner’s responsibility to read the application instructions carefully and fill out the application accurately.  Not only did she list an address that the form explicitly instructs not to provide, she indicated that the address was a “private practice office setting,” which it clearly was not.  The form states that Petitioner should put her home address if she does not have an office and renders services in beneficiaries’ homes.  Further, it explicitly instructs to not use a P.O. Box.  Lastly, because Petitioner provided services to beneficiaries in their homes, she was to list the city, state, and zip code of each beneficiary that she renders services to.

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Petitioner’s assertion that she was “operational” because she was working through a corporate hospice provider is not material to the outcome of this case because she was not “operational” at the practice location on file with the Medicare administrative contractor.  The Departmental Appeals Board (DAB) “has rejected the argument that a physician supplier is operational for purposes of the regulation if, at the time of an on-site review, the supplier is operational at a location other than its practice location on record with the Medicare contractor.”  OC Housecalls, Inc., DAB No. 2893 at 3 (2018), citing Jason R. Bailey, M.D., P.A., DAB No. 2855 at 9 (2018).  Just because Petitioner had other practice locations does not mean she did not violate the Medicare requirements.  I conclude that CMS had a legitimate basis to revoke Petitioner’s Medicare enrollment and billing privileges because Petitioner was not operational at the 234 Morrell Road address listed as her practice location.

In regard to Petitioner’s assertion that CMS should have temporarily deactivated her billing privileges rather than revoke them, I have no authority to make such a determination.  P. Br. at 5-6.  My jurisdiction is limited to determining whether there is a basis for revocation of Petitioner’s Medicare enrollment and billing privileges.  I have no authority to review the exercise of discretion by CMS to revoke where there is a basis for revocation.  Dinesh Patel, M.D., DAB No. 2551 at 10 (2013); Fady Fayad, M.D., DAB No. 2266 at 16 (2009), aff’d 803 F. Supp. 2d 699 (E.D. Mich. 2011); Abdul Razzaque Ahmed, M.D., DAB No. 2261 at 16-17, 19 (2009), aff’d 710 F. Supp. 2d 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.”).

Petitioner further argues that the CMS administrative contractor was required to verify the practice location provided in her enrollment form.  Petitioner asserts that had the contractor verified her address, it would have caught her mistake and allowed her to correct the mistake.  P. Br. at 7.  Petitioner cites the Medicare Program Integrity Manual to support her argument.  However, the regulations indicate that an enrolled provider or supplier has the burden to provide accurate and timely information to CMS and CMS’s administrative contractors.  42 C.F.R. §§ 424.510(d)(2)(i), (d)(3), 424.516.  CMS and its administrative contractors have discretion to work with a provider or supplier to correct obvious errors, but it is not within my jurisdiction to compel the exercise of such discretion.  “[T]he regulations hold the provider or supplier responsible for reporting, and updating, enrollment information; they do not impose on CMS or its contractors a duty to make additional inquires to verify that information.”  Bailey, DAB No. 2855 at 14; see also 42 C.F.R. § 424.510(d)(4).  Given the vast scope of the data collection and analysis required to enroll and revalidate Medicare providers and suppliers, it is not unreasonable for CMS and its contractors to place the burden on the provider or supplier to report accurately its practice location when completing an application for enrollment or revalidation purposes.  Petitioner had the obligation to provide CMS with her correct and accurate practice location and cannot shift blame to CMS.

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Finally, Petitioner asserts that CMS violated her due process rights because “she was given no opportunity to be heard or address the claims against her before her guilt was determined and erroneous punishment was set.”  P. Br. at 7-8.  I find this argument to be without merit.  Petitioner’s billing privileges were revoked pursuant to section 424.535(a)(5) based on her nonoperational status as determined by an on-site inspection.  The only process due Petitioner prior to revocation of enrollment and billing privileges is that required by the Act and provided by the regulations.  Petitioner does not cite to any statutory or regulatory provision that requires CMS to “provide her notice of her error, and to give her an opportunity to be heard.”  P. Br. at 7‑9.  Section 424.535(a)(5) does not require CMS (or its administrative contractor) to notify a supplier that revocation is being contemplated, nor does it require CMS to allow the supplier an opportunity to petition against a proposed or contemplated revocation.2  See Ahmed, DAB No. 2261 at 16-20 (2009).

3. I do not need to decide whether Petitioner timely reported a change of practice location under 42 C.F.R. § 424.535(a)(9).

The regulations require that a physician report, within 30 days, a change in his or her practice location.  42 C.F.R. § 424.516(d)(1)(iii).  Failure to timely report is a basis to revoke a physician’s Medicare enrollment and billing privileges.  42 C.F.R. § 424.535(a)(9).  CMS argues that Petitioner failed to timely provide notice of her change in practice location.  CMS Br. at 5-6.  For her part, Petitioner asserts that because her place of employment and correspondence address did not change, there was no new information to report.  P. Br. at 5.

Because I have concluded that Petitioner was not operational, I do not need to decide whether Petitioner also violated 42 C.F.R. § 424.535(a)(9).  If CMS revokes a provider’s or supplier’s billing privileges, the effective date of the revocation is usually 30 days after the date on the notice of revocation.  However, if CMS revokes a provider’s or supplier’s billing privileges because it is not operational, then the effective date of revocation is the date CMS determined that the provider or supplier was not operational.  42 C.F.R. § 424.535(g).  CMS imposed a retroactive effective date of revocation in this case.  CMS Ex. 4 at 1.  Therefore, it was only necessary for me to decide whether to uphold the non-operational finding to affirm CMS’s determination to retroactively revoke Petitioner’s Medicare enrollment and billing privileges.

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VI.  Conclusion

I affirm CMS’s revocation of Petitioner’s Medicare enrollment and billing privileges effective February 1, 2016.

1. My numbered findings of fact and conclusions of law are set forth below in italics and bold.
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2. When the regulations confer pre-revocation due process rights, they clearly specify them.  For example, section 424.535(a)(1) permits CMS to revoke a supplier’s enrollment based on noncompliance with enrollment requirements, but permits the supplier “an opportunity to correct the deficient compliance requirement before a final determination to revoke billing privileges.”  Section 424.535(a)(5) does not confer such due process rights.  Bailey, DAB No. 2855 at 17.
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