Robert Woodruff DPM PA, DAB CR5690 (2020)

DECISION

Respondent, the Centers for Medicare & Medicaid Services (CMS), revoked the Medicare enrollment and billing privileges of Petitioner, Robert Woodruff DPM PA d/b/a Podiatry Care Associates, for billing services “that could not have been furnished” to Medicare beneficiaries because they were either deceased on the dates of service or were receiving Part A inpatient services at a different location from the one billed by Petitioner for the Part B claims.  As explained below, I affirm CMS’s revocation. 

I.    Background

Petitioner is the professional association through which podiatrist Robert Woodruff rendered and billed for services to patients, including Medicare beneficiaries.  CMS Exhibit (Ex.) 2 at 1, 3; 42 U.S.C. §§ 1395x(d), (r)(3).  On March 21, 2018, pursuant to 42 C.F.R. § 424.535(a)(8)(i), CMS revoked Petitioner’s Medicare enrollment and billing privileges effective April 20, 2018.  CMS Ex. 3 at 1.1   CMS determined that Petitioner

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submitted 22 claims for 12 deceased beneficiaries with dates of service from January 9, 2012 through October 12, 2016.  Id. at 1, 3.2   CMS also determined Petitioner submitted six Part B claims for six beneficiaries who were in Part A inpatient stays, and not in the skilled nursing facility (SNF), assisted living facility (ALF), or medical office locations billed by Petitioner, with dates of service from February 27, 2013, through October 12, 2016.  Id. at 1, 4.  CMS barred Petitioner from re‑enrolling in the Medicare program for three years.  Id. at 2.

Petitioner requested reconsideration, and CMS upheld its initial determination to revoke Petitioner’s billing enrollment in the Medicare program.  CMS Ex. 1 at 5.3   Petitioner timely sought administrative law judge review and with its hearing request submitted the reconsidered determination and eight attachments.  I was designated to hear and decide this case and on July 19, 2018, I issued an Acknowledgment and Pre‑hearing Order (Pre‑hearing Order) setting forth a schedule for the parties to submit arguments and evidence. 

Petitioner then filed a motion for expedited hearing.  CMS opposed Petitioner’s motion, moved for summary judgment, and submitted 10 proposed exhibits (CMS Exs. 1-10) and one proposed witness, for whom CMS submitted written testimony by declaration.  I denied Petitioner’s motion for expedited hearing and issued an order to show cause why Petitioner’s case should not be dismissed for failure to timely submit its pre-hearing exchange, as required by my Pre-hearing Order.  Petitioner filed a response to CMS’s motion for summary judgment, its pre‑hearing submission (P. Br.) with 11 proposed exhibits (P. Exs. 1-11), proposed its principal Dr. Woodruff as a witness, and argued good cause for its untimely submission.  CMS objected to P. Exs. 1, 2, 8, 9, 10, and 11 as duplicates of Petitioner’s prior submissions with the hearing request and because Petitioner had not demonstrated good cause for submitting the documents for the first time at this level.  Petitioner filed a response to CMS’s objections with additional attachments. 

II.    Admission of Exhibits and Decision on the Record

I find good cause for Petitioner’s untimely submission of its pre-hearing exchange and now consider CMS’s remaining objection to Petitioner’s filings.  With respect to P. Exs. 1-2 and 8-11, I agree with CMS and decline to consider these documents introduced for

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the first time before me because Petitioner has not offered good cause to do so.  I therefore exclude P. Exs. 1-2 and 8-11 from the record and have not considered them in reaching this decision.  42 C.F.R. § 498.56(e)(2)(ii); Care Pro Home Health, Inc., DAB No. 2723 at 11 (2016); Pre‑hearing Order § 6.     

In addition, some clinical and procedural records attached to Petitioner’s hearing request have been previously considered by the contractor in its reconsideration, and while I have considered them, they are excluded as duplicative filings.  Compare CMS Ex. 1 at 2 (discussing Petitioner Exhibits 1-4) with DAB E-File Dkt. No. C-18-1116, Doc. Nos. 2-6. 

As CMS offers no objection to the remainder of Petitioner’s proposed exhibits, I admit P. Exs. 3-7 into evidence.  In the absence of objection from Petitioner, I admit CMS Exs. 1‑10 into the record. 

CMS offered the written direct testimony of its witness as part of its pre-hearing exchange.  Petitioner did not offer a written statement as a declaration or affidavit for its proposed witness, as it was required to do.  Pre-hearing Order § 8.  However, CMS has neither objected nor sought to cross-examine Petitioner’s witness, rendering this noncompliance moot.  Because neither party has requested cross-examination of the opposing party’s witness, I will decide this case on the record, meaning the parties’ documents admitted into evidence and arguments.  Civ. Remedies. Div. P. § 19(d).  CMS’s motion for summary judgment is denied as moot. 

III.    Issue

Whether CMS had a legitimate basis for revoking Petitioner’s Medicare billing privileges under 42 C.F.R. § 424.535(a)(8)(i).

IV.    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)).

V.    Applicable Law

The Social Security Act authorizes the Secretary of Health and Human Services to establish regulations for enrolling providers and suppliers in the Medicare program.  42 U.S.C. § 1395cc(j)(1)(A).  Suppliers must enroll in the Medicare program and receive a billing number in order to obtain payment for services rendered to Medicare beneficiaries.  42 C.F.R. § 424.505. 

CMS’s regulations give it the authority to revoke the enrollment and billing privileges of suppliers under certain circumstances, including where a supplier submits a claim or

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claims for services that could not have been furnished to a specific individual on the date of service, such as “[w]here the beneficiary is deceased.”  42 C.F.R. § 424.535(a), (a)(8)(i)(A).

The preamble to the final rule provides the following guidance regarding the intended uses of this particular basis for revocation:

This revocation authority is not intended to be used for isolated occurrences or accidental billing errors.  Rather, this basis for revocation is directed at providers and suppliers who are engaging in a pattern of improper billing. . . .  We believe that it is both appropriate and necessary that we have the ability to revoke billing privileges when services could not have been furnished by a provider or supplier.  We recognize the impact that this revocation has, and a revocation will not be issued unless sufficient evidence demonstrates abusive billing patterns.  Accordingly, we will not revoke billing privileges under § 424.535(a)(8) unless there are multiple instances, at least three, where abusive billing practices have taken place. . . .  In conclusion, we believe that providers and suppliers are responsible for the claims they submit or the claims submitted on their behalf.  We believe that it is essential that providers and suppliers take the necessary steps to ensure they are billing appropriately for services furnished to Medicare beneficiaries.

73 Fed. Reg. 36,448, 36,455 (June 27, 2008).4

Upon revoking a supplier’s enrollment and billing privileges, CMS will bar that supplier from re-enrolling in the Medicare program for a period of one to three years.  42 C.F.R. § 424.535(c).5

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VI.    Findings of Fact, Conclusions of Law and Analysis

1. CMS had a legitimate basis to revoke Petitioner’s Medicare enrollment and billing privileges under 42 C.F.R. § 424.535(a)(8)(i) because Petitioner filed 22 claims for 12 deceased beneficiaries. 

CMS revoked Petitioner’s enrollment and billing privileges pursuant to 42 C.F.R. § 424.535(a)(8)(i) based on its determination that Petitioner submitted claims for services furnished to deceased beneficiaries and beneficiaries in Part A inpatient stays.  In Enclosure A to the initial determination, CMS identified the following claims that Petitioner had billed for 12 deceased beneficiaries:6

	Beneficiary Initials	HICN	Date of Death	Date of Service
1.	A.M.	XXX-XX-3348A	08/06/12	08/24/12
2.	E.D.	XXX-XX-3396A	11/03/06	06/27/16
3.	E.R.	XXX-XX-0498A	12/02/12	02/06/13 04/03/13 05/08/13
4.	J.B.	XXX-XX-0009A	05/17/15	06/17/17
5.	J.F.	XXX-XX-6252A	10/21/10	10/17/12 04/08/13
6.	J.S.	XXX-XX-4288A	08/02/98	02/14/12
7.	L.H.	XXX-XX-3206D	03/18/12	09/12/13 02/04/14 04/08/14 08/19/14
8.	M.B.	XXX-XX-1985A	08/21/09	05/13/15
9.	R.T.	XXX-XX-6522A	10/21/14	10/28/15
10.	S.W.	XXX-XX-8393A	04/03/10	01/09/12 03/21/12 04/25/12 05/30/12 06/18/12
11.	T.S.P.	XXX-XX-0121D2	11/10/12	12/13/12
12.	V.M.	XXX-XX-6912D	06/09/12	06/11/12

 

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CMS Ex. 3 at 3. 

CMS submitted screenshots from Medicare’s Health Insurance Master Record (HIMR) verifying the death dates of these 12 beneficiaries as well as the claim information Petitioner had submitted related to those beneficiaries.  CMS Exs. 6 at 1, 7 at 1 (Beneficiary A.M.); 6 at 2, 7 at 2-4 (Beneficiary E.D.); 6 at 3, 7 at 4-12 (Beneficiary E.R); 6 at 4, 7 at 12-14 (Beneficiary J.B.); 6 at 5, 7 at 15-19 (Beneficiary J.F.); 6 at 6, 7 at 20 (Beneficiary J.S.); 6 at 7, 7 at 21-30 (Beneficiary L.H.); 6 at 8, 7 at 31-33 (Beneficiary M.B.); 6 at 10, 7 at 33-35 (Beneficiary R.T.); 6 at 11, 7 at 36-40 (Beneficiary S.W.); 6 at 12, 7 at 41-43 (Beneficiary T.S.P.); 6 at 13, 7 at 43-44 (Beneficiary V.M.).

Petitioner does not dispute the particulars of any of these 22 claims, either the beneficiaries identified or the alleged dates of service, and in fact conceded to “keystroke errors” in the billing entry process.  P. Hearing Req. at 1; CMS Ex. 5 at 1.  The evidence submitted by CMS confirms that Petitioner submitted 22 claims for 12 beneficiaries who were deceased on the purported date of service, meaning Petitioner could not have possibly provided the services for which it claimed reimbursement.  I therefore find CMS had a valid basis to revoke Petitioner’s enrollment and billing privileges under 42 C.F.R. § 424.535(a)(8)(i). 

2. Because CMS has already established a valid basis for revocation of Petitioner’s enrollment under 42 C.F.R. § 424.353(a)(8)(i), I need not consider the additional six claims identified by CMS.

CMS also identified six Part B claims Petitioner billed for services provided to beneficiaries in a SNF, ALF, or medical office who were actually residing in Part A facilities as inpatients during the alleged date of service.  CMS Br. at 6-7.  As I have already determined CMS established a basis to revoke Petitioner’s enrollment and billing privileges under 42 C.F.R. § 424.535(a)(8)(i), based on Petitioner’s submission of 22 claims for services provided to 12 deceased beneficiaries, I need not consider these additional claims. 

3. Petitioner’s arguments regarding prior contractor audits and overpayments are irrelevant to my review.

Petitioner has consistently acknowledged it submitted erroneous claims.  P. Hearing Req. at 1; P. Br. at 2; CMS Ex. 5 at 1-2.  But it argues the 22 claims were mere “keystroke errors” made by its billing company.  P. Br. at 2. 

Petitioner’s explanation that the noncompliant claims were the result of clerical errors does not change the result here.  The regulations do not require CMS to demonstrate intent by Petitioner to defraud Medicare in order to revoke its billing privileges.  Instead, CMS may revoke the billing privileges of a supplier when it submits “a claim or claims

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for services that could not have been furnished to a specific individual on the date of service.”  Patrick Brueggeman, D.P.M., DAB No. 2725 at 8-9 (2016); Louis J. Gaefke, D.P.M., DAB No. 2554 at 6-10 (2013); Howard B. Reife, D.P.M., DAB No. 2527 at 5-7 (2013).  In any event, Petitioner’s failings amounted to more than mere clerical errors.  Petitioner submitted noncompliant claims on 22 separate occasions for 12 deceased beneficiaries over a period of more than five years, with 10 such noncompliant claims in 2012 alone.  CMS Ex. 3 at 3.  This is more than a sufficient basis for revocation. 

And while I am sympathetic to suppliers who must care for patients and run practices while dealing with the intricacies of submitting claims to the Medicare program, Petitioner bears the responsibility to ensure that its claims are compliant when submitted.  As the preamble to the regulation makes clear, “providers and suppliers are responsible for the claims they submit or the claims submitted on their behalf” and “it is essential that providers and suppliers take the necessary steps to ensure they are billing appropriately for services furnished to Medicare beneficiaries.”  73 Fed. Reg. at 36,455.

Based on at least one earlier denial for a deceased beneficiary whom Petitioner conceded was not its patient (P. Br. at 3), Petitioner should have recognized it needed to change its procedures to better ensure it correctly and accurately submitted claims for its actual patients.  As the Departmental Appeals Board (DAB) has observed, “mistaking the identity of the individual being treated and failing to confirm identifiers (such as full name, Medicare number or date of birth) does raise questions of lack of attention and a pattern of unreliable or abusive billing.”  John M. Shimko, D.P.M, DAB No. 2689 at 7 (2016).  While I have no doubt Petitioner did not intend to defraud the Medicare program, the 22 errors in billing demonstrated by CMS certainly reflect a lack of attention that led to a pattern of unreliable billing. 

To the extent Petitioner seeks equitable relief based on purported unfair treatment by CMS or its contractor, I have no authority to grant equitable relief.  US Ultrasound, DAB No. 2302 at 8 (2010) (ALJ may not grant equitable relief in an instance where statutory or regulatory requirements are not met); see Pac. Islander Council of Leaders,DAB No. 2091 at 12 (2007); Office of Pers. Mgmt. v. Richmond, 496 U.S. 414, 421 (1990) (estoppel unavailable against the federal government).  I am also unable to review the length of Petitioner’s three year re‑enrollment bar.  CMS Ex. 3 at 2; 42 C.F.R. § 424.535(c); Vijendra Dave, M.D., DAB No. 2672 at 11 (2016) (providing CMS’s determination of re-enrollment bar length not reviewable). 

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VII.    Conclusion

I affirm CMS’s revocation of Petitioner’s Medicare enrollment and billing privileges under 42 C.F.R. § 424.535(a)(8)(i).

1. On the same date, CMS revoked the enrollment and billing privileges for Dr. Woodruff under his own NPI and PTAN numbers.  CMS Ex. 10.  That determination is not before me.
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2. The revocation’s enclosure lists June 17, 2017, as the last date of service. CMS Ex. 3 at 3.
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3. The reconsidered determination asserts the last date of service for Petitioner’s claims involving deceased beneficiaries to be October 12, 2016 rather than June 17, 2017.  Compare CMS Ex. 1 at 5 with CMS Ex. 3 at 3-4.  While the reconsidered determination is incorrect, the end date of service is not material and does not affect the outcome of this case.
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4. Section 424.535(a)(8)(i) was originally promulgated as the sole provision in § 424.535(a)(8).  73 Fed. Reg. 36,448, 36,461 (June 27, 2008).  However, when § 424.535(a)(8)(ii) was added, the original text of § 424.535(a)(8) was moved to § 424.535(a)(8)(i).  79 Fed. Reg. 72,500, 72,520 (Dec. 5, 2014).  Therefore, all references to § 424.535(a)(8) in the 2008 preamble to the final rule relate to the text that is now located at § 424.535(a)(8)(i).
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5. The regulation was amended after Petitioner filed its request for hearing and now permits CMS to bar a supplier from re-enrollment for up to 10 years.  See 84 Fed. Reg. 47,794, 47,854-56 (Sep. 10, 2019).
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6. Beneficiaries’ full names and Medicare Health Insurance Claim Numbers are redacted for confidentiality purposes.
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