Uma Chintapalli, MD, DAB CR5852 (2021)

DECISION

Novitas Solutions (Novitas), an administrative contractor acting on behalf of the Centers for Medicare & Medicaid Services (CMS), revoked the Medicare enrollment and billing privileges of Petitioner, Uma Chintapalli, MD, because she failed to provide Qlarant Integrity Solutions, LLC (Qlarant), a unified program integrity contractor (UPIC), with requested documentation for 19 beneficiaries for whom she had ordered durable medical equipment, prosthetics, orthotics, and supplies (DMEPOS) items.  Thereafter, CMS upheld Petitioner’s revocation.  For the reasons stated herein, I affirm the revocation of Petitioner’s Medicare enrollment and billing privileges.

I.    Background

Petitioner is a physician.  See, e.g., P. Ex. 11 at 1.  On December 12, 2019 and July 15, 2020, Qlarant informed Petitioner that it was conducting a review of DMEPOS claims and requested that Petitioner submit records for 19 beneficiaries for whom she was the ordering physician for DMEPOS items.  CMS Exs. 4, 5; see CMS Ex. 6 (spreadsheet listing 19 Medicare beneficiaries and the dates of service).  Qlarant explained that Petitioner’s “provider agreement to participate in the Medicare program requires [her] to submit all information necessary to support the durable medical equipment claims where [she is] listed as the ordering physician,” and that “if certain records supporting the services rendered are at another facility, as the ordering provider [she is] responsible for obtaining those records for [Qlarant’s] review.”  CMS Exs. 4 at 2; 5 at 2.  In its July 2020

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letter, Qlarant informed Petitioner that she must submit the requested records within 15 days.  CMS Ex. 5 at 1-2.

After Petitioner did not submit the requested records, Novitas issued a notice, dated September 3, 2020, informing Petitioner that her Medicare enrollment had been revoked pursuant to 42 C.F.R. § 424.535(a)(10), effective October 3, 2020, due to her failure to comply with 42 C.F.R. § 424.516(f).  CMS Ex. 3 at 1.  Novitas also informed Petitioner that a 10-year bar to re-enrollment had been imposed.  CMS Ex. 3 at 3.   

Petitioner through her current counsel, submitted a request for reconsideration dated September 25, 2020.  CMS Ex. 2 at 1-3.  Petitioner explained the following, in pertinent part: 

[Petitioner] was in transition closing her practice in Plano, Texas . . . when she was approached by [a] telemedicine company to assist “needy” patients.  It was her understanding that most patients were in a rural area and/or elderly with transportation issues.  At the time, she accessed the patient records through the telemedicine portal. She can no longer access the telemedicine portal.  An independent IT consultant attempted to help [Petitioner] access the records requested by Qlarant Integrity Solutions, LLC and was unable to find any of the patients’ names requested in the doctor’s database.  There is reason to believe that CMS/OIG has closed the telemedicine company and as such the portal is no longer accessible.

[Petitioner] recalls accessing the records, recording consultation and the patient’s contacts through the portal and was not aware of the need at the time to maintain her own set of the patients’ records, or even if she could. Particularly, as the patients belonged to the telemedicine company, they kept the intake records, diagnostic codes and prescription orders in what appeared to be an organized system at the time.  The telemedicine company did all the billing and [Petitioner] was paid $30.00 per patient, as locum tenens.  Typically, when/if working as locum tenens, physicians are usually paid per diem (per day, per patient) and neither the patients nor the medical records belong to the physician.

[Petitioner] only worked with telemedicine group(s) on a temporary basis. The CMS manual governing locum tenens does not require maintenance of medical records by the locum tenens physician because the patients do not belong to the locum tenens physician.  Also, CMS should not have the authority to revoke privileges because [Petitioner] was never paid by CMS. Therefore, if there was a rule regarding documentation under these circumstances, the telemedicine company owns the records and received the CMS payment so the rule would be applicable to the payee, the

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telemedicine company, not [Petitioner].  As such, [t]he revocation pursuant to 42 USC § 424.516(f) should not be applicable to [Petitioner].

CMS Ex. 2 at 2.

On October 30, 2020, CMS issued a reconsidered determination in which it upheld Petitioner’s revocation pursuant to 42 C.F.R. § 424.535(a)(10).  CMS Ex. 1.  CMS explained the following:

The documentation the physician is required to maintain for seven years relates to, among other things, ordered and/or certified items of DMEPOS and includes written and electronic documents including the National Provider Identifier (NPI) of the physician who ordered and/or certified items of DMEPOS.  Since [Petitioner] is a physician who provides Medicare Part B services including ordering and certifying DMEPOS, this regulation applies to her.  CMS disagrees with [Petitioner’s] assertion that since she served as a locum tenens substitute physician, § 424.516(f) is not applicable to her.  However, this argument is without merit.  CMS has verified that the claims that form the basis of the medical records requests at issue here did not carry any modifiers indicating that [Petitioner] was a locum tenens physician.  Therefore, as the physician who ordered/certified items of DMEPOS, she is required to maintain records related to those orders.  [Petitioner] argues that she was not aware that she needed to maintain her own records while she was working with the telemedicine company on a temporary basis.  However, ignorance of the regulation does not absolve [Petitioner] of her obligation to maintain proper documentation.

[Petitioner] also argues that she sought the help of an independent company to access the requested records.  However, [Petitioner] states that she is no longer able to access the electronic portal, and therefore, she is unable to provide the records.  Although the telemedicine company may have owned the records, the responsibility to maintain documentation ultimately lies with the physician who orders, certifies, refers, or prescribes Part A or B services, items, or drugs.  [Petitioner’s] assertion that she does not have access to the electronic files, does not absolve her of her obligation to maintain proper documentation as required by § 424.156(f)(2)(A).  By her own admission, she failed to maintain the documentation as required.

Additionally, Qlarant requested medical records and any documentation for 19 beneficiaries for specific dates of service ranging from January 2016 to May 2019.  Qlarant requested this documentation on two separate occasions, by letters dated December 12, 2019 and July 15, 2020.  In response to both these requests, [Petitioner] explained that she did not have

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access to the requested medical records.  [Petitioner] did not provide access to any of the requested documentation within the requested timeframe. Therefore, CMS finds that [Petitioner] failed to comply with the requirements at § 424.516(f)(2)(i)(B).

Since [Petitioner] failed to maintain the documentation for seven years from date of service and failed to provide access to the documentation when requested by CMS or its Medicare contractor pursuant to § 424.516(f), CMS finds that the revocation of [Petitioner’s] Medicare enrollment pursuant to § 424.535(a)(10) is proper.

CMS Ex. 1 at 3-4.  Addressing a statement in Petitioner’s request for reconsideration that she provides urgent care services to patients in an underserved rural community who are “at great risk due to Covid-19,” CMS remarked that “the current public health emergency represents even greater opportunities for fraud, waste, and abuse in the Medicare program” and “this increases the importance of upholding the revocation of [her] enrollment.”  CMS Ex. 1 at 4; see CMS Ex. 2 at 1.
Petitioner, through counsel, submitted a timely request for an administrative law judge (ALJ) hearing that was received on November 20, 2020.  On November 23, 2020, the Civil Remedies Division issued my standing pre-hearing order (Pre-Hearing Order), which directed the parties to file their respective pre-hearing exchanges.  CMS filed a pre‑hearing brief and motion for summary judgment, along with seven proposed exhibits (CMS Exs. 1-7).  Petitioner filed a response (P. Br.) and 14 proposed exhibits (P. Exs. 1-14.).1

CMS objects to P. Exs. 13 and 14, which consist of a letter authored by Grace Chaves, BSN, RN, CCM, and essentially the same letter in the form written direct testimony.  Because Petitioner has identified Ms. Chaves as a witness, and the Pre-Hearing Order allows a party to submit the written testimony of witnesses, I overrule this objection.  See Pre‑Hearing Order § 12.  To the extent CMS disputes the substance of the testimony, such concerns address the probative value and weight of this testimony, rather than its admissibility.  Therefore, I admit all submitted exhibits into the evidentiary record. 

CMS has not requested an opportunity to cross-examine Petitioner’s witnesses, and a hearing is therefore unnecessary for the purpose of cross-examination of any witnesses.

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See Pre‑Hearing Order §§ 12-14.  I consider the record in this case to be closed, and the matter is ready for a decision on the merits.2

II.    Issue

Whether CMS had a legitimate basis to revoke Petitioner’s Medicare enrollment and billing privileges pursuant to 42 C.F.R. § 424.535(a)(10).

III.    Jurisdiction

I have jurisdiction to decide this issue.  42 C.F.R. §§ 498.3(b)(17), 498.5(1)(2); see also 42 U.S.C. § 1395cc(j)(8).

IV.    Findings of Fact, Conclusions of Law, and Analysis3

Pursuant to 42 U.S.C. § 1395cc(j)(1)(A), CMS has promulgated enrollment regulations.  See 42 C.F.R. § 424.500 et seq.  These regulations give CMS the authority to revoke the billing privileges of an enrolled supplier under specified circumstances.  See 42 C.F.R. § 424.535(a).  Relevant to this case, CMS may revoke a supplier’s billing privileges when it determines that the supplier has failed to document or provide access to certain documentation.  42 C.F.R. § 424.535(a)(10); see 42 U.S.C. § 1395u(h)(9).  The relevant revocation authority, 42 C.F.R. § 424.535(a)(10), states the following:

(i) The provider or supplier did not comply with the documentation or CMS access requirements specified in § 424.516(f) of this subpart.
(ii) A provider or supplier that meets the revocation criteria specified in paragraph (a)(10)(i) of this section, is subject to revocation for a period of not more than 1 year for each act of noncompliance.

Section 424.516 provides additional provider and supplier requirements for enrolling and maintaining active enrollment status in the Medicare program.  Specifically, the regulation at section 424.516(f) provides:

(f) Maintaining and providing access to documentation.

                                                * * *

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(2)(i) A physician . . . who orders, certifies, refers, or prescribes Part A or B services, items or drugs is required to —

(A) Maintain documentation (as described in paragraph (f)(2)(ii) of this section) for 7 years from the date of the service; and
(B) Upon request of CMS or a Medicare contractor, to provide access to that documentation (as described in paragraph (f)(2)(ii) of this section).

The regulation further directs that documentation that must be maintained includes “written and electronic documents . . . relating to written orders, certifications, referrals, prescriptions or requests for payments for Part A or B services, items, or drugs.”  42 C.F.R. § 424.516(f)(2)(ii). 

At the time of the initial determination, if CMS revoked a provider or supplier’s enrollment, it could impose a bar on re‑enrollment for a minimum of one year, but no more than ten years.4   42 C.F.R. § 424.535(c)(1)(i).

1.         The UPIC asked Petitioner to provide documentation for 19 specific beneficiaries for whom she had ordered DMEPOS items.

2.         Petitioner did not produce the requested documentation, and she acknowledges she did not maintain her own copy of those records.

3.         Because Petitioner could not comply with a request that she provide documentation relating to DMEPOS orders for Medicare beneficiaries, as required by 42 C.F.R. § 424.516(f), CMS was authorized to revoke her enrollment pursuant to 42 C.F.R. § 424.535(a)(10).

The UPIC requested that Petitioner provide copies of medical records for 19 Medicare beneficiaries for whom she had ordered DMEPOS items.  CMS Exs. 4, 5.  Petitioner concedes that she did not maintain and retain the requested documentation, and argues that she “was under no obligation to maintain [the] records” because she was “employed as a locum tenens physician for two telemedicine companies.”  P. Br. at 1.  Regardless of whether another entity, such as a telemedicine company, purports to maintain copies of beneficiary records, Petitioner, as the ordering physician and a supplier in the Medicare

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program, is required, pursuant to 42 C.F.R. § 424.516(f), to maintain and retain for at least seven years documentation supporting her DMEPOS orders for Medicare beneficiaries.  Because Petitioner was unable to produce the requested documentation for 19 Medicare beneficiaries upon the request of the UPIC, as required by 42 C.F.R. § 424.516(f), CMS had a legitimate basis to revoke her Medicare enrollment and billing privileges pursuant to 42 C.F.R. § 424.535(a)(10).  

Petitioner argues that she did not maintain and retain records because she worked as a locum tenens physician and that locum tenens physicians are not required to maintain medical records.  P. Br. at 2-4, citing Medicare Claims Processing Manual (MCPM), Pub. 100-4, Ch. 1, § 30.2.11.  However, Petitioner has not presented evidence that she actually worked as a locum tenens physician as contemplated by the Medicare program.

The Medicare program allows “fee-for-time” compensation arrangements, which it formerly referred to as locum tenens arrangements, under narrow and defined circumstances.  MCPM § 30.2.11.  Of note, a physician may pay a substitute physician on a per diem or “fee-for-time” compensation basis when the regular physician is absent for reasons such as, but not limited to, military service or illness.  Id.  The regular physician is authorized “to bill and receive payment for the substitute physician’s services as though he/she performed them.”  Id.  The regular physician may submit Medicare reimbursement claims in his or her own name, even though the substitute physician provided the services, and the regular physician’s claims must include a modifier reporting that the services were provided under a fee-for-time arrangement.5   Id.  Additionally, “[a] record of each service provided by the substitute physician . . . must be kept on file along with the substitute physician’s . . . [national provider identifier].”  Id.

In support of her claim that she worked as a locum tenens physician, Petitioner submitted a copy of Lifeline Recruiting’s “Telehealth Practitioner Qualifying Questions.”  P. Ex. 11.  Lifeline Recruiting explained that “[t]he pay rate is paid per consult, with each consult taking only a few minutes,” and that “[m]ost consultation types take under 5 minutes once you are familiar with them.”  P. Ex. 11 at 3.  Although Lifeline Recruiting reported it was recruiting for locum tenens positions, the nature of the positions, as described by Lifeline Recruiting, was not akin to the fee-for-time arrangements discussed by the MCPM and addressed by Petitioner in her brief.   See P. Br. at 2-4; MCPM § 30.2.11.  For instance, Lifeline Recruiting reported that it was recruiting physicians for two partner telemedicine companies, with one company requiring physicians to be available “at least 5 hours per week, any hour of the day/week.”  P. Ex. 11 at 3.  Lifeline Recruiting also explained that it has “some providers who do 10 [consultations] per week and some who do 200, it is up to [the physician] how much [he or she] work[s].”  P. Ex. 11 at 3.  Absent any further evidence or explanation by Petitioner, it is not apparent how

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she could remotely “substitute” for regular physicians by working at any hour on any day and by performing as few as 10 or as many as 200  “consultations” each week.6   P. Ex. 11.  Notably, Lifeline Recruiting did not indicate that the recruited physicians would serve as substitute physicians; to the contrary, Lifeline Recruiting explained that it was specifically recruiting physicians to prescribe and/or order items and tests.7   For example, Lifeline Recruiting explained that “[o]ne company is seeing a high volume of preventative lab requests from partners” and a second company “handles more [durable medical equipment] and [prescription] consults.”  P. Ex. 11 at 3.  Further, Petitioner’s witness, Ms. Chaves, did not indicate that physicians served as substitute physicians, as shown by her explanation that the telehealth companies “make money through contracting with client/subscribers such as . . . Managed Care Organizations, and [accountable care organizations] with the assigned patient population.”  P. Ex. 14 at 1.  Petitioner has not submitted evidence demonstrating that she served as a locum tenens physician as contemplated by the Medicare program.

Although Petitioner may regard herself as a locum tenens physician, she has not demonstrated that her work with telemedicine companies meets the Medicare program requirement for locum tenens physicians.8   Petitioner has not submitted any evidence that she substituted for regular physicians such that she was paid on a per diem (or similar) basis and that the physicians for whom she substituted submitted claims as if they had provided the services.  See MCPM § 30.2.11.  Regardless of whether Petitioner entered into a contract that called for a telemedicine company to store beneficiary records, Petitioner, as a Medicare participant who was not practicing as a locum tenens physician, was independently required to maintain and retain, for a period of seven years, documentation supporting her DMEPOS orders for Medicare beneficiaries.  42 C.F.R. § 424.516(f)(2).  Petitioner’s failure to comply with the requirement that she maintain, retain, and provide access to records supporting her DMEPOS orders for Medicare beneficiaries subjects her to revocation of her enrollment pursuant to 42 C.F.R. §§ 424.535(a)(10) and 424.516(f).  See 42 U.S.C. § 1395u(h)(9) (“The Secretary may revoke enrollment, for a period of not more than one year for each act . . . if such

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physician . . . fails to maintain and . . . provide access to documentation relating to written orders or requests for payment for durable medical equipment. . . .”).  Contrary to Petitioner’s understanding of Medicare participation requirements, a physician must independently maintain documentation of his or her orders for DMEPOS for Medicare beneficiaries, even when another entity separately maintains those records.  42 C.F.R. § 424.516(f)(2)  (“A physician . . . who orders . . . items . . . is required to . . . [m]aintain documentation . . . for 7 years from the date of the service . . . and . . .  provide access to that documentation. . . .”). 

Even assuming that Petitioner’s contractual agreement specified that a telemedicine company would maintain and retain documentation supporting her DMEPOS orders to Medicare beneficiaries, such an agreement cannot exempt Petitioner from Medicare participation requirements.  In fact, the rulemaking implementing 42 U.S.C. § 1395u(h)(9), which added the instant basis for revocation and revised 42 C.F.R. § 424.516, specifically explained that both a physician and another entity may simultaneously be required to maintain, inter alia, records supporting DMEPOS orders, explaining that “[t]his final rule places the responsibility for the maintenance of records on both the ordering and certifying physician and the provider and supplier.”  77 Fed. Reg. 25284, 25310 (Apr. 27, 2012) (emphasis added).9   The rulemaking unambiguously clarified that “[t]he physician or other eligible professional who signed the order or certification is responsible for maintaining and disclosing the documentation.”  Id.

To the extent Petitioner challenges that CMS did not exercise discretion in her favor, the DAB has explained that “it is not for the ALJ and the Board to look behind that exercise of discretion to ask whether he or she, or the Board, standing in CMS’s shoes, would reach the same decision to revoke.”  George M. Young, M.D., DAB No. 2750 at 11 (2016); see also Letantia Bussell, M.D., DAB No. 2196 at 13 (2008) (holding that an ALJ could not substitute her discretion for that of CMS in a Medicare enrollment determination); Decatur Health Imaging, LLC, DAB No. 2805 at 8-9 (2017) (DAB does not review CMS’s exercise of discretion to take other actions that the regulations authorize relating to the enrollment of suppliers and providers).

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V.    Conclusion

For the reasons explained above, I affirm the revocation of Petitioner’s Medicare enrollment and billing privileges pursuant to 42 C.F.R. § 424.535(a)(10).

1. Petitioner’s submissions do not comply with the Pre-Hearing Order, which requires that each document “must be filed as a separate exhibit and uploaded as a separate exhibit in the DAB E-File system” and that “Petitioner should not file as proposed exhibits any documents that CMS has already filed among its proposed exhibits.”   Pre-Hearing Order §§ 8, 9(e).
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2. Because an in-person hearing for the purpose of cross-examination is unnecessary, I need not issue a ruling on CMS’s motion for summary judgment.
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3. My findings of fact and conclusions of law are set forth in italics and bold font.
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4. Although Petitioner does not address the duration of the re-enrollment bar, I nonetheless note that the Departmental Appeals Board (DAB) has determined that the duration of a re-enrollment bar is not an appealable initial determination specified in 42 C.F.R. § 498.3(b).  Vijendra Dave, M.D., DAB No. 2672 at 11 (2016).
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5. CMS explained that claims submitted for Petitioner’s services did not include a fee-for-time arrangement modifier.  CMS Ex. 1 at 3.
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6. It appears that the physician consultations may not have necessarily required the physician to speak directly with beneficiaries.  P. Ex. 11 at 1.
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7. Lifeline Recruiting’s “Qualifying Questions” included questions asking whether the physician is willing to “prescribe to patients based upon [a] phone/video consultation” and order “Labs such as Respiratory Pathogen Testing, Hereditary Cancer Screens and Pharmacogenomics testing.”  P. Ex. 11 at 4.  Lifeline Recruiting also asked whether the physician would “order testing when medically necessary.”  P. Ex. 11 at 4.
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8. The definition of locum tenens is not unique to the Medicare program.  For example, Black’s Law Dictionary (11th ed. 2019) defines locum tenens as a “[a] deputy; a substitute; a representative.”
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9. CMS subsequently broadened the scope of the requirement for physicians to maintain documentation.  84 Fed. Reg. 47794, 47835 (Sep. 10, 2019).
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