Angela Kaye Anderson, DAB CR6124 (2022)

DECISION

Petitioner, Angela Kaye Anderson, is an advanced practice registered nurse, licensed in Nebraska, who, until October 2, 2020, was enrolled in the Medicare program as a supplier of services.  Because she was unable to produce patient medical records that a Medicare program integrity contractor requested, the Centers for Medicare & Medicaid Services (CMS) revoked her Medicare billing privileges pursuant to 42 C.F.R. § 424.535(a)(10) and imposed a ten-year reenrollment bar. 

Petitioner now appeals. 

I affirm CMS’s determination.  I find that CMS is authorized to revoke Petitioner’s Medicare privileges because she ordered durable medical equipment for patients but did not maintain medical records for those patients and could not supply these records when the program integrity contractor requested them.  I have no authority to review the length of the reenrollment bar.

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Background

In a letter dated September 2, 2020, the Medicare contractor, Wisconsin Physicians Service, advised Petitioner that her Medicare privileges were revoked, effective October 2, 2020.  The letter explained that the contractor revoked Petitioner’s Medicare privileges pursuant to 42 C.F.R. § 424.535(a)(10), because, when asked to do so, she did not provide, to CoventBridge Group, LLC, the Unified Program Integrity Contractor, medical records for 20 Medicare beneficiaries for whom she had ordered durable medical equipment, prosthetics, orthotics, and supplies (DMEPOS) items.  Failing to provide access to the requested documentation violates 42 C.F.R. § 424.516(f).  CMS Ex. 2 at 1.  The contractor imposed a ten-year reenrollment bar, pursuant to 42 C.F.R. § 424.535(c).  CMS Ex. 2 at 2. 

Petitioner requested reconsideration.  CMS Ex. 1.  In a reconsidered determination, dated October 23, 2020, a CMS hearing officer upheld the revocation.  CMS Ex. 13. 

Petitioner timely appealed. 

Decision based on the written record.  CMS moves for summary judgment, which Petitioner opposes.  However, this matter may be decided based on the written record, without considering whether the standards for summary judgment have been met. 
CMS proposes no witnesses.  Petitioner proposes one witness (herself) and, in accordance with my pre-hearing order, has submitted her written declaration (CMS Ex. 12; P. Ex. 13).  See Acknowledgment and Pre-hearing Order at 4, 5, 6 (¶¶ 4(c)(iv), 8, 9, 10) (December 21, 2020).  The order directed CMS to indicate, affirmatively, that it wanted to cross-examine a witness.  CMS has not asked to cross-examine Petitioner.  Id. at 5, 6 (¶¶ 9, 10).  Because there are no witnesses to be examined further or cross-examined, an in-person hearing would serve no purpose, and I may decide this case based on the written record.¹  

Exhibits.  CMS submits its motion for summary judgment and brief (CMS Br.) with 13 exhibits (CMS Exs. 1-13).  Petitioner submits her brief and opposition to summary judgment (P. Br.) with 16 exhibits (P. Exs. 1-16).  

In the absence of any objections, I admit into evidence CMS Exs. 1-13.

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Because P. Exs. 1 and 2 duplicate CMS Exs. 2 and 13, I decline to admit them.  P. Ex. 3 is a copy of CMS’s prehearing brief and motion for summary judgment and is not appropriately an exhibit, so I decline to admit it.  P. Exs. 4 through 7 duplicate CMS Exs. 4, 5, 1, and 11, so I decline to admit them.  P. Ex. 12 duplicates CMS Ex. 12, so I decline to admit it.  I admit P. Exs. 8-11 and 13-16. 

Discussion

The Medicare Program.  The Medicare program, Title XVIII of the Social Security Act (Act), is a federally-subsidized insurance program that provides health care benefits to the elderly, disabled, and those suffering from end stage renal disease.  Medicare is divided into four parts: 

• Part A is the hospital insurance program.  It covers hospital services, post-hospital extended care, home health, and hospice care.  Act § 1811 (42 U.S.C. § 1395c);
• Part B, which is voluntary, is the supplementary medical insurance program, covering physician, home health, hospice, and other services.  Act § 1832 (42 U.S.C. § 1395k);
• Part C is the Medicare Advantage program, which allows its participants to enroll in “Medicare + Choice” plans, managed by organizations, such as health maintenance organizations, that receive a fixed payment for each enrollee.  Act § 1851 (42 U.S.C. § 1395w-21); and
• Part D is the voluntary prescription drug benefit program.  Act § 1860D (42 U.S.C. § 1395w-101). 

The Medicare program is administered by CMS, acting on behalf of the Secretary of Health and Human Services.  CMS regulates the Medicare enrollment of providers and suppliers.  Act § 1866(j)(1)(A) (42 U.S.C. § 1395cc(j)(1)(A)).  Physicians and other practitioners (such as Petitioner) may participate in the program as “suppliers” of services.  Act §§ 1861(d), (s)(2)(H)(K) (42 U.S.C. §§ 1395x(d), (s)(2)H)(K)); 42 C.F.R. § 400.202. 

CMS contracts with Medicare administrative contractors, who process and pay reimbursement claims and perform other duties necessary to carry out program purposes.  Act § 1842 (42 U.S.C. § 1395u).  Contractors pay claims to “providers” (Part A) and “suppliers” (Part B).  

1. CMS may revoke Petitioner Anderson’s Medicare enrollment pursuant to 42 C.F.R. § 424.535(a)(10) because she ordered DMEPOS items for Medicare beneficiaries but did not maintain documentation relating to

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those orders and, when the Medicare program integrity contractor asked her to provide that documentation, she would not or could not produce it.²

Revocation of enrollment.  The Medicare statute authorizes the Secretary of Health and Human Services to revoke a supplier’s Medicare enrollment (for a period of not more than one year for each act) if the supplier does not maintain, and, upon request, provide access to documentation relating to written orders or requests for payment for durable medical equipment or other items or services written or ordered by the supplier.  Act § 1842(h)(9) (42 U.S.C. § 1395u(h)(9)).  Implementing the statutory provisions, CMS’s regulations provide that CMS, acting on behalf of the Secretary, may revoke a supplier’s Medicare enrollment if she doesn’t comply with the documentation or access requirements of 42 C.F.R. § 424.516(f).  42 C.F.R. § 424.535(a)(10). 

Section 424.516(f)(2)(i)(A) provides that a physician or an “eligible professional” who orders DMEPOS items must maintain documentation of the transactions for seven years.  “Documentation” includes written and electronic documents, including the NPI (national provider identifier) of the physician or eligible professional, relating to written orders and certifications and requests for payment for items of DMEPOS.  42 C.F.R. § 424.516(f)(1)(ii). 

Program integrity contractors were established to help safeguard the Medicare program, and CoventBridge was the “Unified Program Integrity Contractor” for the Midwest.  A program integrity contractor’s activities are aimed at reducing fraud, waste, and abuse in the Medicare and Medicaid programs.  Among its responsibilities, it reviews Medicare claims to ensure that services have been billed appropriately and are adequately justified.  CMS Ex. 4 at 2. 

Petitioner’s noncompliance with the documentation and access requirements of section 424.516(f).  Petitioner is an Advanced Practice Registered Nurse, who was licensed and practicing in Nebraska.  CMS. Ex. 12 at 1 (Anderson Decl. ¶ 2).  She is an “eligible professional” and therefore subject to the documentation and access requirements of section 424.516.  See Act §§ 1848(k)(3)(B) (42 U.S.C. § 1395w-4(k)(3)(B)), 1842(b)(18)(C)(i) (42 U.S.C. § 1395u(b)(18)(C)(i)), 1861(aa)(5) (42 U.S.C. § 1395x(aa)(5)); 42 C.F.R. § 400.202. 

In a letter dated January 24, 2020, CoventBridge advised Petitioner that it was reviewing certain claims submitted to Medicare for durable medical equipment supplies for which

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she was listed as the referring “physician.”³  The letter listed 20 Medicare beneficiaries, with identifying information, and asked Petitioner to produce their medical records within 45 days of the letter’s postmark dates.  The letter warned that failing to comply with the requests could result in Petitioner’s exclusion from participation in the Medicare program.  CMS Ex. 4 at 2-6. 

Receiving no response, on July 15, 2020, CoventBridge sent a follow-up letter, advising Petitioner that it had not received a response to its January 24, 2020 request for medical documentation.  The letters warned that, if it did not receive the medical records within 15 days from the date of the letter, “administrative action, including revocation, may be taken.”  CMS Ex. 4 at 1. 

Petitioner maintains that she didn’t receive CoventBridge’s January 24 letter, although she concedes that she received the July 15 follow-up.  CMS Ex. 12 at 2 (Anderson Decl. ¶ 4).  In any event, there is no question that she eventually found out about the request but had not maintained patient records and was thus unable to produce them.  CMS Ex. 12 at 2-3 (Anderson Decl. ¶ 6).  CMS is therefore authorized to revoke her Medicare enrollment so long as she is subject to the documentation and access requirements of section 424.516(f).  Act § 1842(h)(9); 42 C.F.R. § 424.535(a)(10); George M. Young, M.D., DAB No. 2750 at 8-9 (2016).  

CMS has met its burden of coming forward with evidence establishing a prima facie case that the cited basis for the revocation exists.  Adora Healthcare Servs., Inc., DAB No. 2714 at 5 (2016).  It presents billing records that list the beneficiary names, dates of birth, and Medicare beneficiary identifier, along with the dates of service, the ordering provider’s name and NPI – which are Petitioner’s name and NPI.  CMS Ex. 3. 

Petitioner has conceded that the beneficiary names “appeared to be individuals whose cases I had reviewed while working for Lifeline Recruiting.”  CMS Ex. 12 at 2 (Anderson Decl. ¶ 6).  She claims that she is unfamiliar with any of the DMEPOS companies that submitted bills and “never submitted an order to any of them.”  CMS Ex. 12 at 3 (Anderson Decl. ¶ 7).  The regulation does not require that she, herself, submitted an order directly to a DMEPOS supplier; it requires only that she issued the order. 

Petitioner also concedes that she worked as an independent contractor for a company called Lifeline Recruiting.  CMS Ex. 12 at 5 (Anderson Decl. ¶¶ 16, 17).  In that capacity, she received and reviewed “consults” for individuals who wanted to obtain certain medical equipment.  CMS Ex. 12 at 5 (Anderson Decl. ¶ 18).  Her role was to determine whether the individual patient could benefit from the item in question.  CMS Ex. 12 at 6

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(Anderson Decl. ¶ 22).  When reviewing the cases, she gave an opinion on whether the individual would benefit from the item listed.  If Petitioner thought that the individual would benefit from the item, she was “prompted to click a button that said something like ‘approve’ or ‘accept.’”  If not, she would click on “decline” or “disapprove.”  She would then “submit” her opinion.  CMS Ex. 12 at 7, 8 (Anderson Decl. ¶¶ 25, 27).  The word “approve” has meaning; when she clicked “submit,” she was, in fact, ordering the item. 

The “eligible professional who signed the order or certification is responsible for maintaining and disclosing the documentation.”  Young, DAB No. 2750 at 10 (quoting 77 Fed. Reg. 25,284, 25,310 (Apr. 27, 2012)).  Even practitioners “who may not have immediate, ready access to and direct control over medical documents . . . would be expected to adhere to the record retention and disclosure requirements.”  Id. 

Petitioner now maintains that she was the victim of fraud.  She did not understand that “the templates submitted to her by Lifeline would constitute ordering DME under the Medicare program or any other health plan.”  P. Br. at 5.  According to Petitioner, she had “no reason to believe that she was actually providing health care services . . . since she was never asked to reassign her professional fees to Lifeline or to any DME company.”  P. Br. at 7 (citing P. Ex. 13 at 1-2 (Anderson Decl. ¶¶ 2-7)).  This raises a very big question:  if she were not reassigning her fees to Lifeline, why did she share her NPI with the company, a practice that is strictly forbidden unless the supplier has explicitly authorized billing by another entity.  42 C.F.R. § 424.80; 42 C.F.R. § 424.535(a)(7) (authorizing revocation when a supplier allows another individual or entity to use its billing number unless there has been a valid reassignment of benefits); Kermit E. White, M.D., DAB No. 2765 (2017).  Lifetime was able to bill the program because Petitioner willingly gave the company her billing information.  CMS Ex. 12 at 5 (Anderson Decl. ¶ 14) (testifying that Lifeline did not request copies of her nursing licenses but asked for her NPI, which she provided). 

In a different context, the Departmental Appeals Board emphasized the supplier’s obligation to safeguard her NPI: 

We cannot imagine that an experienced Medicare provider could have failed to be conscious of the crucial responsibility to ensure that his NPI was used only to submit claims for services which he provided and not sold or given to others to use for their billing.  These are, to be clear, not mere technicalities which might have escaped notice or understanding but so core to the role of a physician in Medicare that it is hard to see how any physician oblivious to them . . . could be trusted to participate in the program. 

Adel A. Kallini, M.D., DAB No. 3021 at 20 (2020).

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Moreover, the Board has distinguished between those portions of section 424.535(a) that require that the supplier act “knowingly” from those that do not.  Compare Access Foot Care, Inc.,DAB No. 2752 at 10 (2016) (observing that section 424.535(a)(8) provides no exception for accidental or inadvertent billing errors; the supplier’s intent is irrelevant) with White, DAB No. 2675 at 2 (holding that section 424.535(a)(7) authorizes revocation if the supplier knowingly sells or allows another individual or entity to use its billing number).⁴  Sections 424.535(a)(10) and 424.516(f)(2) do not include the “knowingly” language.

The Board has consistently held that an administrative law judge’s review of CMS’s determination to revoke a supplier’s Medicare enrollment is limited to deciding whether CMS has established one or more of the grounds specified in section 424.535(a).  William Garner, M.D., DAB No. 3026 at 16 (2020); Norman Johnson, M.D., DAB No. 2779 at 11 (2017), and cases cited therein.  CMS itself has the discretion to consider “unique or mitigating circumstances in deciding whether, or how, to exercise its revocation authority,” which, based on Petitioner’s representations, might be appropriate here.  However, I may not substitute my discretion for that of CMS in determining whether the revocation is appropriate.  Johnson, DAB No. 2779 at 11 (citing Care Pro Home Health, Inc., DAB No. 2723 at 9 n.8 (2016)); Abdul Razzaque Ahmed, M.D., DAB No. 2261 at 19 (2009), aff’d, Ahmed v. Sebelius, 710 F. Supp. 2d 167 (D. Mass. 2010).

Here, CMS had the authority to revoke Petitioner’s Medicare enrollment under section 424.535(a)(10).  Knowingly or not, Petitioner ordered DMEPOS supplies for Medicare beneficiaries – her name and NPI are on each of the billing entries – but she did not maintain patient records and, when asked to do so, could not produce them.  I must therefore affirm the revocation. 

I have no authority to review Petitioner’s Constitutional claims.  Blair Allen Nelson, M.D., DAB No. 3024 at 9-10 (2020).

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2. I have no authority to review CMS’s determination to impose a ten-year reenrollment bar.

When a supplier’s billing privileges are revoked, she may not participate in the Medicare program until the end of her reenrollment bar, which must be for a minimum of one year but no more than ten years (except under circumstance that don’t apply here), depending on the severity of the underlying offense.  42 C.F.R. § 424.535(c)(1).  Here, CMS imposed a ten-year reenrollment bar.  Petitioner argues that the ten-year reenrollment bar violates the regulation, which authorizes “revocation for a period of not more than 1 year for each act of noncompliance.  42 C.F.R. § 424.535(a)(10)(ii).  In Petitioner’s view, she committed, at most, one act of noncompliance.  In fact, CMS has cited 20 such acts. 

Failing to produce any requested document violates section 424.516(f), and here Petitioner failed to do so 20 times.  Young, DAB No. 2750 at 9 (suggesting that failing to produce any single requested document violates section 424.516(f)). 

In any event, I have no authority to review the length of the reenrollment bar.  Vijendra Dave, M.D., DAB No. 2672 at 9-12 (2016); accord, Garner, DAB No. 3026 at 16; Lilia Gorovits, M.D., P.C., DAB No. 2985 at 15-16 (2020); see 42 C.F.R. § 498.3(b)(17).

Conclusion

CMS has established grounds for revoking Petitioner Anderson’s Medicare enrollment under section 424.535(a)(10):  she did not comply with the documentation or access requirements of section 424.516(f).  I have no authority to review the reenrollment bar imposed.

I therefore affirm CMS’s determination.

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Endnotes

¹  That I decide this case based on the written record does not mean that Petitioner has not had a hearing.  Courts recognize that, although a case may be decided on summary judgment or based on the written record, the administrative law judge, by considering the evidence and applying the law, has granted the petitioner a hearing.  See CNG Transmission Corp. v. FERC, 40 F.3d 1289, 1293 (D.C. Cir. 1994) (holding that a “paper hearing” satisfies statutory requirements for “notice and opportunity for hearing”).

²  My findings of fact/conclusions of law are set forth, in italics and bold, in the discussion captions of this decision.

³  The “dates of service” for these claims were from February 26, 2019, through April 5, 2019, well within the seven-year period for which records must be maintained.  CMS Ex. 3.

⁴  Petitioner suggests that, if CMS is convinced that Petitioner was complicit in fraud, it should have revoked her enrollment under section 424.535(a)(7).  P. Br. at 17.  When the contractor initiated this action, it would not have been aware of any alleged fraud.  As discussed above, the purpose of requesting patient records is to ensure that billing was appropriate and justified.  Based on Petitioner’s testimony, it appears that billing fraud may have occurred.  Whether Petitioner herself meets the “knowingly” requirement of section 424.535(a)(7) because she willingly shared her billing information with Lifeline is a more difficult question, which I need not address in order to resolve this case.