Marvin Vice, D.O., DAB CR5099 (2018)

DECISION

Palmetto GBA (Palmetto), an administrative contractor acting on behalf of the Centers for Medicare & Medicaid Services (CMS) and its Center for Program Integrity (CPI), revoked the Medicare enrollment and billing privileges of Petitioner, Marvin Vice, D.O., because Petitioner failed to timely provide the CPI with documentation it had requested for 30 beneficiaries for whom Petitioner ordered durable medical equipment, prosthetics and orthotics (DMEPOS).  CMS upheld the revocation in a reconsidered determination, and Petitioner requested a hearing to dispute the revocation.  For the reasons stated herein, I affirm the revocation of Petitioner’s Medicare enrollment and billing privileges.

I.  Background

According to September 2011 enrollment records (Form CMS-855I and Form CMS-855R), Petitioner is an orthopedic surgeon who reassigned benefits to Blue Ridge Regional Hospital (also referred to herein as Blue Ridge Regional Medical Center).  CMS Exhibit (Ex.) 1 at 29, 63.

On December 20, 2016, the CPI sent Petitioner a letter to the correspondence address listed in his enrollment record, 78 Broad Street, Spruce Pine, North Carolina (CMS Ex. 1 at 27), and explained that it was seeking documentation pertaining to 30 beneficiaries for whom Petitioner had prescribed DMEPOS.  CMS Ex. 1 at 15-19.  Petitioner did not respond to the CPI’s request.  CMS Ex. 1 at 6.

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Based on Petitioner’s failure to provide the requested records to the CPI, Palmetto informed Petitioner, by letter dated March 14, 2017, that it had revoked Petitioner’s Medicare enrollment and billing privileges based on noncompliance with 42 C.F.R. § 424.535(a)(10) for failure to provide CMS with access to documentation involving 30 beneficiaries.  CMS Ex. 1 at 6-7.

On May 11, 2017, Palmetto received a letter from Petitioner that it accepted as a request for reconsideration.  CMS Ex. 1 at 11-14.  Petitioner acknowledged that he did not respond to the request for records because he no longer worked for Blue Ridge Regional Medical Center and the facility did not forward the CPI’s letter to him.  CMS Ex. 1 at 12-14.

CMS’s Provider Enrollment & Oversight Group issued a reconsidered determination on August 29, 2017, in which it determined that Palmetto properly revoked Petitioner’s Medicare enrollment and billing privileges pursuant to 42 C.F.R. §§  424.535(a)(10) and 424.516(f).  CMS Ex. 1 at 1-5.  CMS further explained that Petitioner “is required to maintain for seven years from the date of service, written and electronic documents relating to written orders or certifications or requests for payments for items of DMEPOS.”  CMS Ex. 1 at 3.  CMS determined that Petitioner “failed to comply with the documentation and CMS access requirements specified in 42 C.F.R. § 424.516(f)” and “that the revocation of [Petitioner’s] Medicare privileges under 42 C.F.R. § 424.535(a)(10) is appropriate.”  CMS Ex. 1 at 3-4.

Petitioner submitted a timely request for hearing by mail on October 13, 2017.  In an Acknowledgment and Pre-Hearing Order (Pre-Hearing Order) dated November 8, 2017, I directed the parties to submit pre-hearing briefs addressing all issues of law and fact, along with any proposed exhibits.  Order, § 4.  Pursuant to my Pre-Hearing Order, CMS submitted a motion for summary judgment in lieu of a brief (CMS Br.), along with two proposed exhibits (CMS Exs. 1 - 2).1  Petitioner submitted a Pre-Hearing Brief, along with a response to my January 24, 2017 Order to Show Cause and one supporting exhibit

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(P. Ex. 1).2  In the absence of any objections, I admit CMS Ex. 13 and P. Ex. 1 into the record.

Neither party has submitted the written direct testimony of any witnesses, and a hearing is therefore unnecessary for the purposes of cross-examination of any witnesses.  See Pre‑Hearing Order §§ 8, 9, and 10.  I consider the record in this case to be closed, and the matter is ready for a decision on the merits based on the record.4

II.  Issue

The issue is whether CMS had a legitimate basis for revoking Petitioner’s Medicare enrollment and billing privileges pursuant to 42 C.F.R. § 424.535(a)(l0) because Petitioner did not timely provide the CPI access to requested documentation as required by 42 C.F.R. § 424.516(f).

III.  Jurisdiction

I have jurisdiction to decide this issue.  42 C.F.R. §§ 498.3(b)(17), 498.5(l)(2).

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

The Social Security Act authorizes the Secretary of Health and Human Services (Secretary) to establish regulations governing the enrollment of providers and suppliers in the Medicare program.  42 U.S.C. § 1395cc(j)(1)(A).  The Secretary promulgated enrollment regulations in 42 C.F.R. pt. 424, subpt. P.  See 42 C.F.R. §§ 424.500-424.570.  The regulations provide CMS with the authority to revoke the billing privileges of an

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enrolled provider or supplier if CMS determines that a provider or supplier failed to comply with a provision in 42 C.F.R. § 424.535(a).  Petitioner is a “supplier” for purposes of the Medicare program.  See 42 U.S.C. § 1395x(d); 42 C.F.R. §§ 400.202 (definition of supplier), 410.20(b)(1).  In order to participate in the Medicare program, a supplier must meet certain criteria to enroll and receive billing privileges.  42 C.F.R. §§ 424.505, 424.510.  CMS may revoke a supplier’s enrollment and billing privileges for any reason stated in 42 C.F.R. § 424.535(a).

1. The CPI asked Petitioner to provide documentation pertaining to 30 specific beneficiaries.

2. Petitioner is unable to produce the documentation requested by the CPI because he did not maintain his own copy of those records.

The CPI requested that Petitioner provide copies of medical records for 30 beneficiaries.  CMS Ex. 1 at 15-17.  Petitioner claims that he did not receive this request because the CPI sent this request to Blue Ridge Regional Medical Center, which was his former address that continued to be on file with CMS, and Blue Ridge Regional Medical Center did not did not forward this request to him.  P. Br. at 1-2; CMS Ex. 1 at 1-2.  However, Petitioner acknowledges that he was “unaware of [his] responsibility of doing the address change [him]self when [he] retired,” and he has not alleged that he provided an updated contact address to CMS prior to the date the CPI requested the medical records in December 2016.6   P. Br. at 2.  Nonetheless, and even after receiving the CPI’s request for medical records, Petitioner has been unable to produce the requested records.  Specifically, Petitioner concedes that he did not maintain documentation regarding his written orders for DMEPOS for these beneficiaries and that “[a]ll of the records in question have been maintained electronically by the companies that [he] worked for.”  P. Br. at 2.  Yet, Petitioner admitted in his October 2018 request for hearing that he had been unable to obtain more than a third of the requested records that are purportedly in the custody of these companies:

I am sending the copies of eighteen of the records that was [sic] given to my [sic] by Self Relient [sic], one of the telemedicine companies that I was working for.  I found another six patient’s [sic] records with VideoDoctor.com but they still have not made the records available as

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promised.  The last six records were with Medilive out of Tampa, Florida.  The company no longer exists and I have not received any return phone calls from the owner for several months.

Request for Hearing at 3-4.  As recently as January 2018, Petitioner reported his continued inability to produce much of the requested documentation, explaining that he “was hoping [he] would be able to obtain more of the last 12 charts” but “have had no luck yet.”  P. Br. at 6.

Petitioner has not produced the 30 records requested by the CPI, and he admits that he cannot obtain more than a third of the requested records.  As such, Petitioner has not complied with the CPI’s request for documentation.

3. CMS and Palmetto had a basis to revoke Petitioner’s Medicare enrollment and billing privileges pursuant to 42 C.F.R. §§ 424.535(a)(10) and 424.516(f) because Petitioner failed to provide the documentation requested by the CPI.

Pursuant to 42 C.F.R. § 424.535(a)(10), CMS may revoke a provider’s or supplier’s billing privileges and any corresponding provider or supplier agreement 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.

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.

* * *

(2)(i) A physician . . .  who orders items of DMEPOS . . . 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).

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The regulation further directs that documentation that must be maintained includes “written and electronic documents . . . relating to written orders or certifications or requests for payments for items of DMEPOS . . . .”  42 C.F.R. § 424.516(f)(2)(ii).

Petitioner has conceded that he did not maintain the requested documentation, and argues that the documentation was in the custody of the various telemedicine companies.  P. Br. at 2-3.  I conclude that CMS had a legitimate basis to revoke Petitioner’s Medicare enrollment and billing privileges pursuant to 42 C.F.R. §§ 424.535(a)(l0) and 424.516(f) because Petitioner failed to provide the requested documentation.  Pursuant to 42 C.F.R. § 424.516(f), a party is required to provide documents “upon request.”  CMS and the CPI, through Palmetto, were authorized to revoke Petitioner’s Medicare enrollment and billing privileges pursuant to 42 C.F.R. §§ 424.516(f) and 424.535(a)(10) due to Petitioner’s failure to provide access to documentation requested by the CPI.  Here, there is no dispute that Petitioner did not provide the requested documents at the time of the request or anytime thereafter, and Petitioner concedes that he did not maintain the requested documents.  CMS had a legitimate basis to revoke Petitioner’s Medicare enrollment and billing privileges pursuant to 42 C.F.R. § 424.535(a)(10).  See 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) (Departmental Appeals Board (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).

Petitioner argues that he did not need to maintain a copy of the requested documentation because he “felt [he] was able to obtain any patient chart and have it sent to any legal party that requested it.”7   P. Br. at 4-5.  However, this claim is contradicted by Petitioner’s concession that he does not have access to documentation that is in the possession of two telemedicine companies.  Request for Hearing at 3-4 (Petitioner’s discussion that he cannot access records for 12 beneficiaries that are in the custody of these two companies).  Petitioner was personally responsible for maintaining and producing the documentation requested by the CPI.  42 C.F.R. § 424.516(f)(2).  As previously addressed, a physician must maintain, and retain for seven years, documentation pertaining to ordered items of DMEPOS.  Id.  In fact, in response to comments, the April 27, 2012 final rule implementing section 424.516(f)(2) specifically explained 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. 25,284, 25,310 (Apr. 27, 2012).  CMS further clarified that “[t]he physician or other

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eligible professional who signed the order or certification is responsible for maintaining and disclosing the documentation.”  Id.  Likewise, the DAB has observed that “CMS contemplated that even physicians who may not have immediate, ready access to and direct control over medical documents (as, for example, a doctor who owns his or her own practice and keeps the medical documents within his or her medical office might) would be expected to adhere to the record retention and disclosure requirements.” George M. Young, M.D., DAB No. 2750 at 10 (2016).

Petitioner argues that he has “been unable to work” because of his revocation and that “CMS does not care if this has created a hardship on [his] family.”  P. Br. at 6.  However, Petitioner’s alleged hardship is solely due to his failure to comply with Medicare program requirements.  To the extent that Petitioner is requesting relief based in equitable principles, I am not authorized to grant Petitioner equitable relief.  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.”); see, e.g., 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.”).

V.  Conclusion

For the reasons explained above, I affirm the revocation of Petitioner’s Medicare enrollment and billing privileges.

• 1. CMS submitted all of its supporting evidence as a single 67-page exhibit containing multiple documents as CMS Ex. 1, and it described CMS Ex. 1 as “Reconsideration Decision and Exhibits dated August 29, 2017.” In actuality, CMS Ex. 1 is a compilation of five different documents dating back to September 2011. CMS’s submission of all its supporting documents as a single exhibit disregards Section 5 of the Pre-Hearing Order, which requires that each exhibit be filed as a separate document in DAB E-File and that multiple exhibits should not be uploaded as one file. I encourage CMS to ensure compliance with all orders, rather than disregarding purposeful directives that are intended to promote adjudicative efficiency.
• 2. Petitioner, who is not represented by counsel, is a registered user of DAB E-File.  Therefore, he was required to file his brief via DAB E-File no later than January 17, 2018.  Pre-Hearing Order, § 4(b); see Pre-Hearing Order, § 3 (directing that “[p]arties must file documents electronically in this case.”).  Petitioner did not submit his brief via DAB E-File, but rather, mailed his brief on January 12, 2018.  The U.S. Postal Service, for unknown reasons, did not deliver Petitioner’s brief until April 23, 2018.  See https://tools.usps.com/go/TrackConfirmAction?tRef=fullpage&tLc=2&text28777=&tLabels=9510814853378012238356%2C (last visited May 1, 2018).
• 3. CMS Ex. 2 is an incomplete duplicate copy of pages 6 through 10 of CMS Ex. 1, and it is unclear why CMS re-submitted this incomplete document as a separate exhibit. Therefore, I have not admitted CMS Ex. 2 into the record.
• 4. It is unnecessary in this instance to address the issue of summary judgment, as neither party has requested an in‑person hearing.
• 5. My findings of fact and conclusions of law are set forth in italics and bold font.
• 6. CMS points out that “Petitioner admits that he failed to inform CMS of his change of address, and therefore, he failed to comply with 42 C.F.R. § 424.516(e)(2) by not reporting a change of address to CMS within 90 days.” CMS Br. at 2. I add that Petitioner, as a physician, would be required to provide notice of a change in his practice location within 30 days pursuant to 42 C.F.R. § 424.516(d)(1)(iii); based on Petitioner’s statements in his filings, it appears that he may have continued to practice medicine elsewhere following his departure from Blue Ridge Regional Medical Center.
• 7. I will not address Petitioner’s unsupported allegation that he should not maintain these records because his computer “may not be secure.” P. Br. at 3-4. Petitioner has not presented any argument that the sections 424.516(f)(2) and 424.535(a)(10) exempt compliance due to such a circumstance, nor has Petitioner presented factual evidence supporting that an individual physician is incapable of maintaining a computer system that can securely store patient records.