Larona R. Searcy, DAB CR6132 (2022)

DECISION

Petitioner, Larona R. Searcy, is a nurse practitioner, licensed in Mississippi, who, until September 26, 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 the 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 August 27, 2020, the Medicare contractor, Novitas Solutions, advised Petitioner that her Medicare privileges were revoked, effective September 26, 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 Qlarant Integrity Solutions, LLC, the “Unified Program Integrity Contractor,” medical records for 20 Medicare beneficiaries for whom she had ordered DMEPOS (durable medical equipment, prosthetics, orthotics, and supplies).  Failing to provide access to the requested documentation violates 42 C.F.R. § 424.516(f).  CMS Ex. 5 at 1.  The contractor imposed a ten-year reenrollment bar, pursuant to 42 C.F.R. § 424.535(c).  CMS Ex. 5 at 3. 

Petitioner requested reconsideration.  CMS Ex. 6.  In a reconsidered determination, dated November 9, 2020, a CMS hearing officer upheld the revocation.  CMS Ex. 1. 

Petitioner timely appealed. 

Decision based on the written record.  My pre-hearing order directed the parties to exchange, as a proposed exhibit and in the form of an affidavit or written declaration, the written direct testimony of any proposed witness.  Acknowledgment and Pre-hearing Order at 3, 5, 6 (¶¶ 4(c)(iv), 8, 9, 10) (January 27, 2021).  The order pointed out that a hearing would be necessary only if a party files admissible, written direct testimony, and, in compliance with the order, the opposing party asks to cross-examine.  Order at 6 (¶ 10).  Neither party proposes any witnesses.  Because there are no witnesses to be examined 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 ten exhibits (CMS Exs. 1-10).  Petitioner submits her brief and opposition to summary judgment (P. Br.) with four exhibits (P. Exs. 1-4).  

In the absence of any objections, I admit into evidence CMS Exs. 1-10 and P. Exs. 1-4. 

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

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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) 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 Qlarant was the Unified Program Integrity Contractor for the Southwestern Jurisdiction.  CMS Ex. 2 at 1.  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.  

Petitioner’s noncompliance with the documentation and access requirements of section 424.516(f).  Petitioner is a nurse practitioner, who was licensed and practicing in Mississippi.  CMS. Ex. 3 at 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; 73 Fed. Reg. 38,501, 38,539 (July 7, 2008). 

In a letter dated February 19, 2020, Qlarant advised Petitioner that it was reviewing certain claims submitted to Medicare for durable medical equipment supplies for which she was listed as the ordering “physician.”³  The letter listed 20 Medicare beneficiaries, with identifying information, and asked Petitioner to produce their medical records within 45 days of the date of the letter.  CMS Ex. 2.  Although the letter was sent to the correspondence address listed in Petitioner’s Medicare enrollment record, FedEx was

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unable to deliver it, and no one picked it up at the FedEx facility where it was held for a week.  CMS Ex. 2 at 5-6. 

Receiving no response to the initial request, on July 15, 2020, Qlarant sent a follow-up letter, advising Petitioner that it had not received a response to its February 19, 2020 request for medical documentation.  The letter 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 2.  Petitioner received the letter.  CMS Ex. 4 at 5. 

That Petitioner did not receive Qlarant’s initial notice is not significant; she concedes that she received the July 15 follow-up letter and, in any event, there is no question that she did not maintain patient records and is thus unable to produce them.  P. Br.  The “eligible professional who signed the order or certification is responsible for maintaining and disclosing the documentation.”  George M. Young, M.D., DAB No. 2750 at 10 (2016), 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.  CMS is therefore authorized to revoke her Medicare enrollment.  Act § 1842(h)(9)); 42 C.F.R. § 424.535(a)(10); Young, M.D., DAB No. 2750 at 8.  

Petitioner explains that she has no access to the patient records, which, she believes, are in the possession of her former employer, a now defunct telemedicine company called Pacific iMed.  P. Br. at 1.  Despite her repeated efforts, the company’s owners, Jennifer and Tim Rivard, have not responded to any of her texts, calls, and emails.  CMS Ex. 6 at 1; P. Br. at 1. 

Petitioner also explains that she was not employed by or otherwise linked to Amgen Healthcare, the supplier of durable medical equipment that billed the Medicare program for the ordered items.  CMS Ex. 6 at 1.  But the regulation does not require that she, herself, submitted an order directly to a DME supplier; it requires only that she issued the order. 

Petitioner has since learned that Tim Rivard was Amgen’s CEO and that the company is also defunct.  She alleges that the Rivards were engaged in fraud, which seems likely.  CMS Ex. 6.  Unfortunately, this does not give me the authority to rescind the revocation.  The Departmental Appeals 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

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here.  However, I may not substitute my discretion for that of CMS in determining whether the revocation is appropriate.  Johnson, M.D., 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).  

I have no authority to review Petitioner’s equitable claims.  Wendell Foo, M.D., DAB No. 2904 at 25 (2018) (citing Foot Specialists of Northridge, DAB No. 2773 at 18 (2017)).  I may review whether the regulations authorize CMS to revoke Petitioner’s Medicare enrollment.  So long as CMS shows that one of the regulatory bases for revocation exists, I must uphold the revocation.  Foo, M.D., DAB No. 2904 at 3; Wassim Younes, M.D., DAB No. 2861 at 8 (2018). 

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, M.D., 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 Searcy’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.

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  I make this one finding of fact/conclusion of law.

³  The “dates of service” for these claims were from June 11, 2018, through March 18, 2019, well within the seven-year period for which records must be maintained.  CMS Ex. 2 at 4.