Luis F. Ycaza, D.O., DAB CR5858 (2021)

DECISION

First Coast Service Options, Inc. (First Coast), an administrative contractor acting on behalf of Respondent, the Centers for Medicare & Medicaid Services (CMS), revoked the Medicare enrollment and billing privileges of Petitioner, Luis F. Ycaza, D.O., because he failed to maintain and timely provide CMS access to medical records for Medicare beneficiaries for whom Petitioner ordered or certified home health services.  As explained herein, I affirm CMS’s revocation determination.

I.  Background and Procedural History

Petitioner is a doctor of osteopathy who at times relevant here was enrolled as a supplier in the Medicare program.  CMS Exhibit (Ex.) 1.  As an attending physician at various facilities, Petitioner certified Medicare beneficiaries for home health services.  CMS Ex. 8 at 2.

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On August 30, 2017, Safeguard Services, LLC (“Safeguard”), a Zone Program Integrity Contractor,1 notified Petitioner of its intent to review his billing practices.  CMS Ex. 2 at 1.  Safeguard directed Petitioner to submit “any and all documentation that supports the billed services” for Medicare beneficiaries for whom Petitioner had ordered home health services.  Id.  Safeguard gave Petitioner 30 days from the date of the request to produce all records related to Petitioner’s home health certifications for 10 Medicare beneficiaries for dates of service from January 1, 2016 through July 31, 2017.  Id. at 2, 4.  Petitioner did not submit the requested documentation by the deadline.

On September 14, 2017, Safeguard again requested this documentation and gave Petitioner an additional 15 days to produce the records.  CMS Ex. 3.  Petitioner did not submit the requested documentation by the deadline. 

On October 11, 2017, Safeguard sent Petitioner a third request for documentation and gave him until October 26, 2017 to produce the requested records.  CMS Ex. 5 at 1, 2, 4.  Safeguard warned Petitioner his “[f]ailure to comply with this medical records request could result in revocation.” (emphasis omitted).  CMS Ex. 5 at 2.  Petitioner again failed to submit the requested documentation by the deadline. 

On December 7, 2017, Petitioner submitted his first response to Safeguard’s records requests.  CMS Ex. 6.  Petitioner’s submission was incomplete.  He submitted documents for only some of the requested beneficiaries and for dates of service beginning February 1, 2017, rather than January 1, 2016.  Id. at 1.  On January 9, 2018, Petitioner submitted another response to Safeguard’s records requests.  CMS Ex. 12.  Petitioner’s second submission was again incomplete.  See CMS Exs. 9-10. 

On February 20, 2018, Petitioner received notice of CMS administrative contractor First Coast’s initial January 5, 20182 determination to revoke his Medicare enrollment and billing privileges for failing to maintain or provide CMS access to documentation pursuant to 42 C.F.R. § 424.535(a)(l0).  CMS Ex. 7 at 1.  First Coast explained that it revoked Petitioner’s enrollment as a supplier because as of January 5, 2018, Safeguard had not received “any medical records for 2 beneficiaries, [received] partial medical records for 4 beneficiaries and no medical records for the requested timeframe for 4 beneficiaries.”  Id.  First Coast notified Petitioner his revocation was effective February

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4, 2018, and that pursuant to 42 C.F.R. § 424.535(c), he would be barred from re-enrolling for one year.  Id. at 1-2. 

Petitioner requested reconsideration on March 26, 2018.3   CMS Ex. 8.  In his request, Petitioner explained that he did not produce the requested documents by the deadline because neither he nor his employer, “owns, controls, maintains or governs access to the medical records of the Medicare beneficiaries who are certified for home health services . . . .”  CMS Ex. 8 at 2.  Petitioner stated he had “absolutely no authority over how the medical records are maintained . . . and whether or not they’re complete.”  Id. Petitioner also submitted a third response to Safeguard’s records requests related to numerous dates of service on March 26, 2018.  CMS Exs. 9-10.

On June 21, 2018, CMS issued an unfavorable reconsidered determination upholding First Coast’s determination to revoke Petitioner’s enrollment and billing privileges.  CMS Ex. 11.  Hearing Officer Hicks explained that under 42 C.F.R. § 424.516(f)(2)(i), Petitioner was required to maintain documentation for seven years from the date of the service, and to provide access to that documentation upon request of CMS or one of its contractors.  CMS Ex. 11 at 15.  She noted that CMS, through Safeguard, requested access to such medical records in three separate requests, yet Petitioner failed to provide CMS access to the medical records by October 31, 2017.  Id.  The hearing officer took note of Petitioner’s explanation in his request for reconsideration that he had been an attending physician at multiple facilities and did not have access to records controlled by those facilities.  Id.  She rejected Petitioner’s justification, observing that his lack of access did not absolve him of his obligation to the Medicare program to maintain records for seven years and produce them on request.  Id.  Hearing Officer Hicks concluded that because Petitioner failed to maintain and provide CMS access to medical records for Medicare beneficiaries for whom he ordered or certified home health services, as required by 42 C.F.R. § 424.516(f)(2), it was appropriate to revoke his Medicare enrollment and billing privileges pursuant to 42 C.F.R. § 424.535(a)(10).  Id. at 15-16. 

Petitioner timely sought review by an Administrative Law Judge in the Civil Remedies Division, and I was designated to hear and decide this case.  On August 27, 2018, I issued an Acknowledgment and Pre‑hearing Order (Pre‑hearing Order) setting forth directives concerning the submission of arguments and evidence by the parties.  CMS submitted a motion for summary judgment or, in the alternative, pre-hearing brief (CMS Br.), and 12 proposed exhibits (CMS Exs. 1-12).  Petitioner filed his pre-hearing brief and opposition to CMS’s motion (P. Br.), along with one proposed exhibit, consisting of his written direct testimony (P. Ex. 1).

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II.        Admission of Exhibits and Decision on the Record

Neither party objected to the opposition’s proposed exhibits.  I therefore admit CMS Exs. 1-12 and P. Ex. 1 into the record.

In my Pre-hearing Order, I required the parties to submit written direct testimony for each proposed witness and advised I would hold an in‑person hearing only if a party requested to cross-examine an opposing party’s witness.  Pre-Hearing Order ¶ 10; see also Civ. Remedies Div. P. §§ 16(b), 19(b); Pac. Regency Arvin, DAB No. 1823 at 8 (2002).  Here, Petitioner provided written direct testimony of one proposed witness for whom CMS did not seek cross-examination.  Consequently, an in-person hearing is not necessary and I decide this case based on the written record.  Civ. Remedies Div. P. § 19(b).  CMS’s motion for summary judgment is denied as moot.

III.  Issue

The issue is whether CMS had a legal basis to revoke Petitioner’s Medicare enrollment and billing privileges pursuant to 42 C.F.R. § 424.535(a)(10).

IV.  Jurisdiction

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

V.  Discussion

A. Statutory and Regulatory Background

The Act provides for CMS to regulate the enrollment of providers and suppliers in the Medicare program.  Act § 1866(j)(1)(A); 42 U.S.C. § 1395cc(j)(1)(A).  Congress established the following as a basis for revoking a supplier’s Medicare enrollment:

The Secretary may revoke enrollment, for a period of not  more than one year for each act, for a physician or supplier under section 1395cc(j) of this title if such physician or supplier fails to maintain and, upon request of the Secretary, provide access to documentation relating to written orders or requests for payment for durable medical equipment, certifications for home health services, or referrals for other items or services written or ordered by such physician or supplier under this subchapter, as specified by the Secretary.

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42 U.S.C. § 1395u(h)(9).  The regulations implementing this statute state that CMS may revoke if:

(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.

42 C.F.R. § 424.535(a)(10).  Relevant here, 42 C.F.R. § 424.516(f)(2) states:

(f) Maintaining and providing access to documentation.

*     *     *

(2)(i) A physician who orders/certifies home health services . . . 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).

(ii) The documentation includes written and electronic documents (including the NPI of the physician who ordered/certified the home health services . . .) relating to written orders or certifications or requests for payments for . . . home health services.

The effect of revocation is to terminate any provider agreement and to bar the provider or supplier “from participating in the Medicare program from the effective date of the revocation until the end of the reenrollment bar.”  42 C.F.R. § 424.535(b), (c).  At the time Petitioner’s enrollment as a supplier to the Medicare program was revoked, CMS could impose a re-enrollment bar lasting from one to three years.  42 C.F.R. § 424.535(c)(1).4

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B. Findings of Fact, Conclusions of Law, and Analysis5

1. Petitioner failed to maintain required documentation related to beneficiaries for whom he ordered or certified home health services, and failed to provide CMS with access to those records upon request.

2. CMS had a basis to revoke Petitioner’s Medicare enrollment and billing privileges pursuant to 42 C.F.R. § 424.535(a)(10), for violating the requirements of 42 C.F.R. § 424.516(f).

CMS may revoke a provider’s or supplier’s enrollment and billing privileges if the provider or supplier did not maintain documents or did not provide CMS access to such documents as required by 42 C.F.R. § 424.516(f).  42 C.F.R. § 424.535(a)(10).  A physician who orders or certifies home health services must maintain certain kinds of documents, including “written and electronic documents . . . relating to written orders,  certifications, . . . or requests for payments for [home health services . . . .]”  42 C.F.R. § 424.516(f)(2)(ii). 

As the Departmental Appeals Board (Board) has explained, the plain meaning of 42 C.F.R. § 424.516(f) requires a provider or supplier to do two things:  (1) maintain documents, written and electronic, related to written orders or certifications or requests for payments for specified Medicare items and services for a period of seven years; and (2) provide CMS or its contractor access to those documents upon request.  George M. Young, M.D., DAB No. 2750 at 8 (2016).

The record before me demonstrates Petitioner failed to meet these regulatory requirements.  On August 30, 2017, September 14, 2017, and October 11, 2017, CMS’s contractor requested documentation from Petitioner that supported his certification of 10 Medicare beneficiaries for home health care.  CMS Exs. 2-3, 5.  In each instance where CMS’s contractor made such a request, it provided a deadline for Petitioner to submit the requested documents.  Id.  As Petitioner concedes, he failed to submit the requested documents by any of the deadlines, including the final October 26, 2017 deadline.  P. Req. for Hearing at 2.6

Petitioner instead argues that while he did not submit the requested documentation by the contractor’s deadlines, he did eventually submit the requested documentation by March 26, 2018, and therefore complied with the regulation.  Id.  Petitioner claims that

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42 C.F.R. § 424.516(f)(2) does not establish a timeframe for him to comply with document requests and that CMS’s contractor therefore established an “arbitrary” deadline for him to produce the requested documentation.  P. Br. at 9-10. 

Petitioner’s claim is without merit.  It is true that the regulation itself does not specify a timeframe for the production of requested documentation, but it does require a physician who orders or certifies home health services to produce requested documentation “upon request.”  42 C.F.R. § 424.516(f)(2)(i)(B).  That language does not suggest a supplier from whom CMS or one of its contractors requests records can produce those records at its leisure. 

There may be some period of time in which it would be unreasonable to expect a supplier to produce documentation, but this case does not present circumstances where I would entertain such an inquiry.  See Young, DAB No. 2750 at 9 n.13 (upholding revocation where a contractor required production of requested documentation within one week).  Here, CMS’s contractor made three requests to Petitioner to produce documentation and allowed him a total of nearly two months in which to do so.  CMS Exs. 2-3, 5.  Petitioner did not acknowledge the production deadlines, object to them, or request additional time in which to respond.  He in fact made no effort to respond at all until six weeks after the final deadline had passed, and even then, took several more months to ultimately produce the requested documents.  Absent any effort on his part to produce the documents in a timely fashion or even respond to the contractor’s three requests within the requested timeframe, Petitioner cannot argue the timeline for production imposed by the contractor in this case was unreasonable under the regulations.

Petitioner also takes issue with whether the contractor’s notices were first, second, or follow-up requests, the number of categories of documents in each notice, whether the Hearing Officer considered his January 9, 2018 production effort (as it was “mentioned only once in passing”), whether the records submitted in his December 7, 2017 production were properly itemized and considered, and whether he even furnished services to some of the listed Medicare beneficiaries during the dates of service identified.7   P. Req. for Hearing at 3-4; P. Br. at 3-6.  These contentions are inconsequential to the issue before me – whether Petitioner produced records he was required to maintain as a supplier to the Medicare program.  The clear language of the statute and implementing regulations requires Petitioner to maintain relevant records for seven years and produce those records upon request.  By his own admission, Petitioner did not maintain those records, and did not produce them upon request.

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The remainder of Petitioner’s arguments are equitable in nature and therefore beyond my purview.  He first attacks the regulation requiring him to maintain and produce records on request as unreasonable, asserting that “CMS’[s] requirement in the regulations for physicians who order or certify home health services to personally maintain documentation separate from the facility is, as a practical matter, unreasonable and unrealistic, and it creates unnecessary risk to patient privacy.”  P. Br. at 10-11.  Petitioner states that “to meet the regulatory requirements, [he] would have had to make copies from every patient’s medical record while at the facility of all of the several types of documents requested . . . .”  Id. at 11.  Petitioner concludes that “[t]his irrational requirement puts physicians like [him] in an untenable situation and undermines the rule of law because it is impossible to comply.”  Id.  On these bases, Petitioner asks that I overturn CMS’s determination to revoke his enrollment and billing privileges. 

Regardless of the merits of Petitioner’s arguments, I cannot afford him relief, as I am required to follow the Act and regulations and have no authority to declare statutes or regulations invalid.  1866ICPayday.com, L.L.C., DAB No. 2289 at 14 (2009) (“An ALJ is bound by applicable laws and regulations and may not invalidate either a law or regulation on any ground, even a constitutional one.”).  Similarly, I cannot consider Petitioner’s claim that revoking his enrollment and billing privileges as a supplier in the Medicare program deprived him of his property interests in violation of his due process rights under the Fifth Amendment to the U.S. Constitution, or his claim that revocation “has severely damaged [his] career, his reputation and the medical practice that has taken him years to build.”  P. Req. for Hearing at 4; P. Br. at 7-9; P. Ex. 1 at 3.  While I am sympathetic to Petitioner’s position, I cannot ignore laws or regulations or provide equitable relief, including relief based on constitutional grounds.  US Ultrasound, DAB No. 2302 at 8 (2010) (“Neither the ALJ nor the [DAB] is authorized to provide equitable relief by reimbursing or enrolling a supplier who does not meet statutory or regulatory requirements.”); 1866ICPayday.com, L.L.C., DAB No. 2289 at 14.

VI.  Conclusion

For the foregoing reasons, I affirm that CMS had a basis to revoke Petitioner’s Medicare enrollment and billing privileges pursuant to 42 C.F.R. § 424.535(a)(10), for failing to comply with the requirements of 42 C.F.R. § 424.516(f).

1. Zone Program Integrity Contractors are tasked by CMS to conduct audits and perform investigations in order to “identify, prevent, or correct potential fraud, waste and/or abuse” related to Medicare and Medicaid claims.  Ctrs. for Medicare & Medicaid Servs., Zone Program Integrity Contractor Statement of Work at 13-14, available at https://www.cms.gov/About-CMS/Contracting-With-CMS/ContractingGeneralInformation/Downloads/Zone-Program-Integrity-Contractor-ZPIC-Zone-7-sow.pdf (last visited Apr. 13, 2021).
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2. In her reconsidered determination, CMS Hearing Officer Minisha Hicks explained that First Coast’s January 5, 2018 initial determination notice was returned to sender and that Petitioner did not receive the revocation notice until February 20, 2018.  CMS Ex. 11 at 1 n.1, 13-14.
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3. Hearing Officer Hicks found good cause to accept Petitioner’s request for reconsideration because he had not actually received First Coast’s initial determination until February 20, 2018.  CMS Ex. 11 at 13-14.
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4. CMS has since increased the maximum re-enrollment bar period to ten years.  84 Fed. Reg. 47,794, 47,826 (eff. Nov. 4, 2019).
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5. My findings of fact and conclusions of law are set forth in italics and bold font.
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6. In fact, Petitioner failed to submit any document at all until December 7, 2017 – six weeks after the final deadline.  CMS Ex. 6.
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7. To the extent Petitioner did not have records responsive to the contractor’s production request because he had not treated the identified beneficiaries, or if he believed the contractor’s production requests to be too vague to provide responses, as he now claims, his proper recourse was to contact the contractor and explain his position, not wait until the time period for him to respond expired before making such a claim.
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