Justin LaMonda, MD and Justin G. LaMonda, MD LLC, DAB CR5887 (2021)

DECISION

The Centers for Medicare & Medicaid Services (CMS) revoked the Medicare enrollment and billing privileges of Justin LaMonda, MD and Justin G. LaMonda, MD LLC (collectively, Petitioners). CMS concluded that Petitioners had abused their billing privileges within the meaning of 42 C.F.R. § 424.535(a)(8)(ii). As I explain in greater detail below, I find that Petitioners did not abuse their billing privileges because they did not engage in a “pattern or practice of submitting claims that fail to meet Medicare requirements.” I therefore reverse CMS’s revocation of Petitioners’ Medicare enrollment and billing privileges.

I. Background and Procedural History

Justin LaMonda, MD (Dr. LaMonda) is a physician and surgeon licensed to practice medicine in the State of Missouri.  CMS Exhibit (Ex.) 2 at 2 (¶ 7).  Dr. LaMonda practiced through a limited liability corporation, Justin G. LaMonda, MD LLC, of which he was the sole owner.  CMS Ex. 1 at 4; see also CMS Ex. 4 at 7.  Petitioners were enrolled in the Medicare program since at least August 1, 2014.  CMS Ex. 1 at 4; see also Petitioners’ Response to CMS’s Motion for Summary Judgment (P. Br.) at 2.

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In August 2017, Dr. LaMonda and the Missouri State Board of Registration for the Healing Arts (Medical Board) executed a settlement agreement to resolve disciplinary proceedings against Dr. LaMonda’s medical license.  CMS Ex. 2 at 1.1  Under the terms of the settlement agreement, Dr. LaMonda stipulated that his license was subject to discipline.  Id. at 5-7.  The parties agreed to the terms of a consent order on discipline.  Id. at 7-11.  The consent order provided that Dr. LaMonda’s license would be suspended for three years.  Id. at 7.  However, if Dr. LaMonda successfully completed a professional boundaries course, the Medical Board would terminate the license suspension and place Dr. LaMonda’s license on probation.  Id.  The consent order became effective on August 10, 2017.  Id. at 11; see also CMS Ex. 3.  By letter dated August 14, 2017, the Medical Board transmitted a copy of the executed settlement agreement to Dr. LaMonda.  CMS Ex. 3.  Effective September 14, 2017, the Medical Board terminated Dr. LaMonda’s suspension and placed him on probation until September 14, 2022.  CMS Ex. 1 at 4; CMS Ex. 7.

On or about August 29, 2017, Dr. LaMonda completed a Form CMS-855I to change the information in his Medicare enrollment record.  CMS Ex. 4 at 5, 28.  Dr. LaMonda reported, as a final adverse action, the fact that the Medical Board had suspended his medical license.  Id. at 4, 15.  In a cover letter enclosed with his updated application, Dr. LaMonda explained that his license was suspended and asked that WPS permit him to continue to treat Medicare patients.  Id. at 30.  WPS received the application on September 1, 2017.  See, e.g., id. at 1.2

Dr. LaMonda rendered services to Medicare patients on August 11, 14, and 15, 2017, after the date his medical license was suspended.  CMS Ex. 5 at 3-4.  Subsequently, Petitioners filed 27 claims for Medicare reimbursement for services he rendered on those days.  Id.

By letter dated November 21, 2018, Wisconsin Physicians Service Insurance Corporation (WPS), a CMS administrative contractor, issued an initial determination revoking Petitioners’ Medicare billing privileges, effective December 20, 2018.  CMS Ex. 5 at 1.  WPS concluded that the claims submitted by Petitioners for Medicare reimbursement for services rendered while Dr. LaMonda’s license to practice medicine was suspended were “abusive and improper” under 42 C.F.R. § 424.535(a)(8)(ii).  Id.  WPS additionally

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asserted that Dr. LaMonda did not report an adverse legal action as required by 42 C.F.R. § 424.535(a)(9).  Id.

In a letter dated December 6, 2018, Petitioners, through counsel, requested reconsideration.  CMS Ex. 6.  In their reconsideration request, Petitioners argued that when Dr. LaMonda treated Medicare patients on August 11, 14, and 15, 2017, he was unaware that his license suspension had gone into effect on August 10, 2017.  Id. at 1-2.  Petitioners also argued that they did not violate 42 C.F.R. § 424.535(a)(9) because Dr. LaMonda notified WPS of his license suspension within 30 days.  Id. at 2.

By letter dated March 12, 2019, a hearing officer with CMS’s Provider Oversight and Enrollment Group issued a reconsidered determination.  CMS Ex. 1.  The reconsidered determination overturned the revocation under 42 C.F.R. § 424.535(a)(9), Failure to Report.  CMS acknowledged that WPS had received Dr. LaMonda’s change of information application on September 1, 2017.  Id. at 7.  Because WPS received the application reporting Dr. LaMonda’s license suspension within 30 days of the suspension, CMS found no basis to revoke Petitioners’ Medicare enrollment pursuant to 42 C.F.R. § 424.535(a)(9).  Id.; see also CMS. Ex. 4.

However, the reconsidered determination upheld the revocation under 42 C.F.R. § 424.535(a)(8)(ii), Abuse of Billing.  CMS found Petitioners had submitted claims that did not meet Medicare requirements because they billed Medicare for services rendered while Dr. LaMonda’s medical license was suspended.  CMS Ex. 1 at 5-6.  CMS further found that the claims represented a pattern or practice of abusive billing because Petitioners had submitted three or more improper claims.  Id. at 6.  The reconsidered determination also concluded that Petitioners had engaged in a pattern or practice of abusive billing based on CMS’s evaluation of some of the factors enumerated in 42 C.F.R. § 424.535(a)(8)(ii).  CMS determined that Dr. LaMonda’s history of final adverse actions (42 C.F.R. § 424.535(a)(8)(ii)(C)); the length of time over which the pattern continued (42 C.F.R. § 424.535(a)(8)(ii)(D)); and other information regarding Dr. LaMonda’s specific circumstances (42 C.F.R. § 424.535(a)(8)(ii)(F)) supported the decision to revoke Petitioners’ Medicare enrollment.  Id.

Petitioners timely requested a hearing and the case was assigned to me.  At my direction, my office acknowledged Petitioners’ hearing request and provided a copy of my Standing Prehearing Order (Prehearing Order).  Pursuant to the Prehearing Order, CMS submitted a combined Memorandum in Support of Motion for Summary Judgment and Prehearing Brief (CMS Br.) and offered seven proposed exhibits (CMS Exs. 1-7).  Petitioners filed their response brief, but did not offer any proposed exhibits.  Nor did Petitioners object to the exhibits offered by CMS.  Therefore, in the absence of objection, I admit CMS Exs. 1-7 into the record.

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My Prehearing Order advised the parties that they must submit written direct testimony for any proposed witness and that an in-person hearing would only be necessary if the opposing party requested an opportunity to cross-examine a witness.  Prehearing Order ¶¶ 8-10; Civil Remedies Division Procedures (CRDP) §§ 16(b), 19(b); see Pac. Regency Arvin, DAB No. 1823 at 8 (2002) (holding that the use of written direct testimony for witnesses is permissible so long as the opposing party has the opportunity to cross‑examine those witnesses).  Neither party submitted the written direct testimony of any witness.  Consequently, an in‑person hearing is not required, and I issue this decision based on the written record, without regard to whether the standards for summary judgment are met.  Prehearing Order ¶¶ 8-10, 12; CRDP § 19(d).  I deny CMS’s motion for summary judgment as moot.

II. Issue

The issue in this case is whether CMS had a legal basis to revoke Petitioners’ Medicare enrollment and billing privileges pursuant to 42 C.F.R. § 424.535(a)(8)(ii).

III. 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)).

IV. Discussion

A. Statutory and Regulatory Background

The term ‘physician’ means “a doctor of medicine or osteopathy legally authorized to practice medicine and surgery by the State in which he [or she] performs such function or action.”  Act § 1861(r) (42 U.S.C. § 1395x(r)).  The term “supplier” encompasses physicians, other practitioners, or any entity that is not a provider of services.  Act § 1861(d) (42 U.S.C. § 1395x(d)); 42 C.F.R. § 400.202.  Thus, Dr. LaMonda and his practice are suppliers for Medicare purposes.

The Act authorizes the Secretary of Health and Human Services (Secretary) to promulgate regulations governing the enrollment process for providers and suppliers.  Act § 1866(j) (42 U.S.C. § 1395cc(j)).  Suppliers must enroll in the Medicare program to obtain payment for services rendered to Medicare beneficiaries.  42 C.F.R. § 424.505.  Suppliers must also maintain an active enrollment status in the Medicare program by certifying compliance with various requirements, including being compliant with Federal and State medical licensure, certification and regulatory requirements.  42 C.F.R. § 424.516(a)(2).

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The Secretary has delegated to CMS authority to revoke Medicare enrollment and billing privileges.  See 42 C.F.R. § 424.535; Letantia Bussell, M.D., DAB No. 2196 at 12 (2008).  Section 424.535(a)(8) of the regulations authorizes CMS to revoke a supplier’s Medicare enrollment and billing privileges if the supplier abuses its billing privileges:

(a)  Reasons for revocation.  CMS may revoke a currently enrolled provider or supplier’s Medicare billing privileges and any corresponding provider agreement for the following reasons:

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(8)  Abuse of billing privileges.  Abuse of billing privileges includes either of the following:

(i)  The provider or supplier submits a claim or claims for service that could not have been furnished to a specific individual on the date of service.

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(ii)  CMS determines that the provider or supplier has a pattern or practice of submitting claims that fail to meet Medicare requirements.  In making this determination, CMS considers, as appropriate or applicable, the following:

(A)  The percentage of submitted claims that were denied.

(B)  The reason(s) for the claim denials.

(C)  Whether the provider or supplier has any history of final adverse actions (as that term is defined under § 424.502) and the nature of any such actions.

(D)  The length of time over which the pattern has continued.

(E)  How long the provider or supplier has been enrolled in Medicare.

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(F)  Any other information regarding the provider or supplier’s specific circumstances that CMS deems relevant to its determination as to whether the provider or supplier has or has not engaged in the pattern or practice described in this paragraph.

42 C.F.R. § 424.535(a)(8).

If CMS revokes a supplier’s Medicare enrollment and billing privileges, the revocation becomes effective 30 days after CMS or one of its contractors mails the revocation notice to the supplier, subject to some exceptions not applicable in this case.  42 C.F.R. §§ 405.800(b)(2), 424.535(g).  After CMS revokes a supplier’s enrollment and billing privileges, CMS bars the supplier from reenrolling in the Medicare program for a minimum of one year, but no more than three years.3  42 C.F.R. § 424.535(c).

B.  Findings of Fact, Conclusions of Law, and Analysis4

1. Petitioners submitted 27 claims seeking reimbursement for services provided to 27 Medicare beneficiaries on August 11, 2017, August 14, 2017, and August 15, 2017, by Dr. LaMonda, whose license to practice medicine was suspended at the time.

As I have described above, the Medical Board suspended Dr. LaMonda’s license to practice medicine effective August 10, 2017, and lifted the suspension, placing him on probation, effective September 14, 2017.  CMS Ex. 1 at 4; CMS Ex. 2 at 7-11; CMS Ex. 7 at 1.  CMS offered evidence that, during the period August 10, 2017, through September 13, 2017, Dr. LaMonda provided medical services to 27 Medicare beneficiaries and that Petitioners submitted claims for reimbursement to Medicare for those services.  CMS Ex. 5 at 3-4. Petitioners do not dispute that Dr. LaMonda provided and billed Medicare for medical services during a time when his medical license was suspended.  P. Br. at 1.

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2. CMS did not have a legal basis to revoke Petitioners’ Medicare enrollment and billing privileges under 42 C.F.R. § 424.535(a)(8)(ii).

CMS may revoke a supplier’s Medicare enrollment and billing privileges if CMS determines that the supplier has a pattern or practice of submitting claims that do not meet Medicare requirements.  42 C.F.R. § 424.535(a)(8)(ii).  Although Petitioners have conceded that they filed 27 claims that did not meet Medicare requirements, I nevertheless conclude that the record does not support that Petitioners engaged in a pattern or practice of filing abusive claims.

a. The fact that Petitioners submitted three or more improper claims does not prove that Petitioners engaged in a pattern or practice of abusive billing within the meaning of 42 C.F.R. § 424.535(a)(8)(ii).

In the reconsidered determination, the CMS hearing officer wrote:

CMS finds a pattern or practice of an abuse of billing where three or more claims were submitted to Medicare for payment.  73 Fed. Reg. 36455 (June 27, 2008).  In this instance, [Dr. LaMonda’s p]ractice submitted 27 claims listing Dr. LaMonda as the rendering physician while his medical license was suspended.  CMS finds that the 27 claims exceeded the three-claim threshold, and therefore, establishes a pattern of an abuse of billing.

CMS Ex. 1 at 6.  This statement articulates an incorrect legal standard.

Three instances of improperly billed claims do not automatically show a pattern or practice of abusive billing under § 424.535(a)(8)(ii).  DRS Health Grp. LLC, DAB CR5444 at 9-10 (2019); see also Michelle Alexandre, DAB CR5422 at 4 (2019).  Rather, the preamble language cited by CMS applies to improper claims as defined in 42 C.F.R. § 424.535(a)(8)(i).

When the original language for § 424.535(a)(8) was promulgated, the preamble to the final rule indicated that CMS would not revoke a supplier based on accidental or isolated billing mistakes, but that evidence of three or more instances of improper billing would not be considered accidental when determining if abusive billing occurred.  DRS Health Grp., DAB CR5444 at 10; see also 73 Fed. Reg. 36,448, 36,455 (June 27, 2008).  However, when § 424.535(a)(8)(ii) was added to the regulation, the original text of

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§ 424.535(a)(8) became § 424.535(a)(8)(i). 79 Fed. Reg. at 72,500, 72,513, 72,520, 72,532 (Dec. 5, 2014).

Importantly, the two subsections, 424.535(a)(8)(i) and 424.535(a)(8)(ii), describe distinctly different grounds for revocation.  Under subsection (i), the submission of even a single claim for a beneficiary who, for example, was deceased on the purported date of service is, per se, grounds for revocation.  Alexandre, DAB CR5422 at 5.  It is to this type of claim, which appellate decisions of the DAB have described as “impossible,” that the three-claim rule applies.  See, e.g., John M. Shimko,DAB No. 2689 at7 (2016)(“The improper claims to which that subsection[5 ] applies are not all erroneous claims but claims for services that could not have been provided as claimed, that is to say that are ‘impossible’ in that the identified beneficiary could not have been treated by the identified provider/supplier on the specific date given.” (emphasis in original)).

By contrast, improper claims described in subsection 424.535(a)(8)(ii) are not equivalent to the “egregiously inaccurate” claims described in Shimko.  Id.  The drafters of the preamble language accompanying the addition of subsection (ii) recognized this difference.  The preamble explained that “[t]he term ‘abusive,’ as used in the context of § 424.535(a)(8)(ii), is meant to capture a variety of situations in which a provider or supplier regularly and repeatedly submits non-compliant claims over a period of time.”  79 Fed. Reg. at 72,515 (emphasis added).  The expectation stated in the preamble is that “a repeated pattern of submitting non-compliant claims indicates that the associated claims denials are not altering the provider’s behavior. . . . this final rule is focused on providers who cannot or will not come into compliance with our payment requirements after repeated claims denials.”  Id.  The preamble additionally states that CMS will only apply § 424.535(a)(8)(ii) “in situations where the behavior could not be considered sporadic,” instead focusing on “providers and suppliers that engage in a systemic, ongoing, and repetitive practice of improper billing.”  Id. at 72,514, 72,519 (emphasis added).

Therefore, the fact that Petitioners filed more than three claims that failed to meet Medicare requirements, standing alone, is not a legal basis to conclude that Petitioner engaged in a pattern or practice of filing abusive claims under § 424.535(a)(8)(ii).  Instead, the decision to revoke must be supported by the factors enumerated at § 424.535(a)(8)(ii)(A) – (F).  In the following section of this decision, I explain why I conclude that the relevant factors do not support revocation of Petitioners’ Medicare enrollment.

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b. Although Petitioners filed 27 claims that did not meet Medicare requirements, Petitioners did not engage in a pattern or practice of abusing their billing privileges within the meaning of 42 C.F.R. § 424.535(a)(8)(ii).

In concluding that Petitioners’ Medicare enrollment should be revoked pursuant to 42 C.F.R. § 424.535(a)(8)(ii), CMS relied on the factors described at 42 C.F.R. § 424.535(a)(8)(ii)(C), (D), and (F).  CMS Ex. 1 at 6.  By contrast, CMS did not expressly consider the factors involving “[t]he percentage of submitted claims that were denied”; “[t]he reason(s) for the claim denials”; “[t]he length of time over which the pattern has continued”; and “[h]ow long the provider or supplier has been enrolled in Medicare.”  42 C.F.R. § 424.535(a)(8)(ii)(A), (B), (E).  While CMS need not consider every factor, the factors that describe the number, timing, and reasons for the claims denials at issue are extremely important to determining whether a supplier has engaged in a pattern or practice of abusive billing.  See DRS Health Grp., DAB CR5444 at 9.

Pursuant to 42 C.F.R. § 424.535(a)(8)(ii)(A), the percentage of submitted claims that were denied may be relevant to the question of whether Petitioners engaged in a pattern or practice of abusive billing.  CMS did not address this factor in its reconsidered determination.  CMS Ex. 1.  There is no evidence of record showing the percentage of Petitioners’ claims that were denied.  Even the WPS chart summarizing “claims billed by Justin G. LaMonda, MD, LLC on which [Dr. LaMonda was] listed as the rendering provider, for dates of service between August 11, 2017 and August 15, 2017” does not state explicitly that all 27 claims were denied.  See CMS Ex. 5 at 1, 3-4.  Even if I infer that all of those claims were denied, I do not find that a denial rate of 100% over three days and amounting to a total of 27 claims provides a meaningful indicator of whether Petitioners engaged in a pattern or practice of submitting improper claims.  In order to assess this factor, it would be important to know whether Petitioners had a history of submitting improper claims and, if so, what percentage of all their claims did not comply with Medicare requirements.  In the absence of such information, I do not find that this factor tends to prove that Petitioners engaged in a pattern or practice of improper billing.

Pursuant to 42 C.F.R. § 424.535(a)(8)(ii)(B), the reason(s) for the claims denials may demonstrate a pattern or practice of improper billing.  CMS did not consider this factor in its reconsidered determination.  CMS Ex. 1.  Assuming that all 27 claims at issue were denied, the reason for the denials would have been that Petitioners claimed Medicare reimbursement for services Dr. LaMonda rendered while his medical license was suspended.  The record contains no information concerning whether Petitioners had other claims denials beyond the 27 identified in CMS Ex. 5 and, if so, why those claims were denied.  Absent such information, the improper claims identified in CMS Ex 5 appear to

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have arisen from a unique, isolated incident and do not tend to prove that Petitioners engaged in a pattern or practice of improper billing.

Pursuant to 42 C.F.R. § 424.535(a)(8)(ii)(C), whether a supplier has any history of final adverse actions (as that term is defined under § 424.502) and the nature of any such actions may be relevant to determining whether a provider or supplier has a pattern or practice of non-compliant billing.  In the reconsidered determination, CMS identified the suspension of Dr. LaMonda’s medical license as a final adverse action.  CMS Ex. 1 at 6.  CMS’s hearing officer was clearly concerned about the conduct that led the Medical Board to suspend Dr. LaMonda’s license.  The reconsidered determination recounts that the settlement agreement stipulated that Dr. LaMonda dispensed drugs without the appropriate labels and not in the course of professional practice.  Id.  The hearing officer described the drugs involved as “Valium, a controlled dangerous[6  ] substance, and Tramadol, a highly addictive opioid.”  Id.  The hearing officer also noted that “between June 1 and July 31, 2015, Dr. LaMonda engaged in sexual activity with a patient on four separate occasions in his office or exam rooms” and that “[o]n at least one occasion, the sexual activity occurred immediately after [Dr. LaMonda] administer[ed] treatment to the patient.”  Id.  The hearing officer concluded that Dr. LaMonda’s actions were “harmful to the mental and physical health of the patient.”  Id.

While I may agree with the hearing officer’s implication that the reasons for Dr. LaMonda’s license suspension reflect unfavorably on his professional ethics and judgment, revocation of billing privileges pursuant to 42 C.F.R. § 424.535(a)(8)(ii) is not authorized for unprofessional or unethical conduct.  Rather, revocation is appropriate under the regulation only if a supplier engages in a pattern or practice of abusive billing.  As far as the record reveals, the behavior that led to Dr. LaMonda’s license suspension did not bear any direct relationship to Petitioners’ billing practices.7  Therefore, I do not find that the factor enumerated at 42 C.F.R. § 424.535(a)(8)(ii)(C) tends to prove that Petitioners engaged in a pattern or practice of abusive billing.

Pursuant to 42 C.F.R. § 424.535(a)(8)(ii)(D), the length of time over which the pattern has continued may be evidence of a pattern or practice of abusive billing.  CMS considered this factor and determined that Petitioners improperly billed for services

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rendered over a five-day period.  CMS Ex. 1 at 6.  The CMS hearing officer characterized the submission of 27 improper claims in a five-day period as “egregious.”  Id.  I disagree with this assessment.

The improper claims on which CMS bases the revocation were confined to three days within a five-day period (from Friday August 11, 2017, through Tuesday August 15, 2017).  CMS Ex. 5 at 3-4.  Moreover, as Petitioners explain, the Medical Board’s letter notifying Dr. LaMonda that the consent order had been executed and his suspension had gone into effect was dated August 14, 2017.  P. Br. at 1-2; see also CMS Ex. 3.  The record does not reveal the date on which Dr. LaMonda received the suspension notice.  However, given that the Medical Board mailed the notice to Dr. LaMonda, I find it unlikely that Dr. LaMonda could have received the notice before August 15, 2017.  See CMS Ex. 3.  CMS did not show that Petitioners submitted any non-compliant claims for dates of service after August 15, 2017.  See CMS Ex. 5 at 4.

Given these circumstances, Petitioners’ non-compliant claims appear to have been an isolated or sporadic instance of non-compliant billing, rather than a pattern or practice under 42 C.F.R. § 424.535(a)(8)(ii).  As I have described above, the preamble to the regulation explains that CMS will apply 42 C.F.R. § 424.535(a)(8)(ii) to “situations in which a provider or supplier regularly and repeatedly submits non-compliant claims over a period of time.”  79 Fed. Reg. at 72,515 (emphasis added).  A single five-day span of non-compliant claims does not demonstrate that Petitioners regularly and repeatedly submitted non-compliant claims over a period of time.  Nor does it demonstrate that Petitioners could not or would not come into compliance with Medicare payment requirements, despite repeated claims denials.  See id.

Pursuant to 42 C.F.R. § 424.535(a)(8)(ii)(E), the length of time a provider or supplier has been enrolled in the Medicare program may be relevant to determining whether the provider or supplier engaged in a pattern or practice of improper billing.  CMS did not consider this factor in its reconsidered determination.  CMS Ex. 1.  Petitioners represent that, at the time of the revocation, they had been enrolled in the Medicare program for approximately six years.  P. Br. at 2; see also CMS Ex. 1 at 4 (Dr. LaMonda’s practice has been enrolled since at least August 1, 2014).  CMS did not offer evidence that Petitioners submitted other non-compliant claims during their period of enrollment.  Absent evidence of other improper claims, I infer that Petitioners’ three days of non-compliant billing, over a period of four to six years, were isolated and sporadic instances, rather than a pattern or practice under 42 C.F.R. § 424.535(a)(8)(ii).

The factor at 42 C.F.R. § 424.535(a)(8)(ii)(F) is a catch-all category that captures other relevant information regarding the provider or supplier’s specific circumstances.  The reconsidered determination stated that, in 2014, the Medical Board had publicly

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reprimanded Dr. LaMonda for allowing a nurse to “administer or dispense drugs and provide treatment without a written collaborative practice agreement.”  CMS Ex. 7 at 2; see also CMS Ex. 1 at 6.  An action by a professional licensing board to reprimand a licensee does not meet the definition of a final adverse action under 42 C.F.R. § 424.502.  Hypothetically, a reprimand might qualify as other relevant information under 42 C.F.R. § 424.535(a)(8)(ii)(F).  However, I do not find the reprimand described in the reconsidered determination relevant to the question of whether Petitioners engaged in a pattern or practice of abusive billing.  As is true of Dr. LaMonda’s license suspension, there is no evidence to suggest that the conduct for which Dr. LaMonda was reprimanded resulted in improper billing.

In summary, CMS erred in presuming that Petitioners engaged in a pattern or practice of abusive billing merely because they submitted more than three non-compliant claims.  Further, I infer that CMS determined that Dr. LaMonda was untrustworthy based on the conduct underlying his license suspension and reprimand.  However, 42 C.F.R. § 424.535(a)(8)(ii) does not authorize revocation of a supplier’s Medicare enrollment because CMS deems the supplier untrustworthy.  Rather, the revocation must be based on a finding that the supplier engaged in a pattern or practice of abusive billing.  I find, by a preponderance of the evidence presented, that Petitioners did not engage in such a pattern or practice.

V. Conclusion

Based on the record before me, I do not find that Petitioners engaged in a pattern or practice of abusive billing within the meaning of 42 C.F.R. § 424.535(a)(8)(ii).  For the reasons explained in this decision, I conclude that CMS did not have a legal basis to revoke Petitioners’ Medicare enrollment and billing privileges.

1. For unknown reasons, the PDF page numbers displayed when CMS Ex. 2 is opened in DAB E-File are not consistent with the page numbers marked on the exhibit. I cite to the page numbers marked on the exhibit.
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2. WPS placed the Julian date stamp “2017244” in the lower left corner of the application. I take administrative notice that September 1 was the 244th day of 2017.
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3. Effective November 4, 2019, CMS increased the maximum reenrollment bar from 3 to 10 years, and up to 20 years for a second revocation. 84 Fed. Reg. 47,794, 47,826, 47,855 (Sept. 10, 2019).
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4. My findings of fact and conclusions of law appear as headings in bold italic type.
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5. The Shimko decision considered subsection 424.535(a)(8) before it was divided into subsections (a)(8)(i) and (a)(8)(ii).
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6. The adjective “dangerous” appears to be an editorialization by the CMS hearing officer, as this term does not appear in the statutory definitions of “controlled substance.” See 21 U.S.C. § 802(6); Mo. Rev. Stat. § 195.010(6).
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7. It could be argued that dispensing controlled substances outside the course of professional practice might result in improper billing. However, the record contains no evidence that Petitioners submitted claims for Medicare reimbursement related to Dr. LaMonda’s improper prescribing practices.
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