Avida Care Services, LLC, DAB CR5268 (2019)

DECISION

The Centers for Medicare & Medicaid Services (CMS), acting through its Center for Program Integrity, revoked Petitioner Avida Care Services, LLC’s (Petitioner’s) Medicare enrollment and billing privileges pursuant to 42 C.F.R. § 424.535(a)(8)(ii), Abuse of Billing.  CMS found that Petitioner had submitted Medicare claims for home health services without a valid physician certification as required by 42 C.F.R. § 424.22.  For the reasons set forth below, I find that CMS had a legal basis to revoke Petitioner’s Medicare enrollment and billing privileges.

I. Background and Procedural History

Petitioner is a home health agency based in Texas that has been enrolled in the Medicare program since 2004.  CMS Exhibit (Ex.) 2 at 1.  CMS’s Fraud Prevention System, a data analytics tool used by CMS to detect providers with billed claims that fit patterns consistent with fraud, waste or abuse, identified Petitioner as a target for further investigation.  CMS Ex. 9 at ¶ 5.  Subsequently, on December 1, 2015, investigators employed by Health Integrity, a CMS Zone Program Integrity contractor, conducted an unannounced visit to Petitioner’s practice location.  CMS Ex. 12 at ¶¶ 3, 7.  The

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investigators requested medical records for 83 beneficiaries.  Id. at ¶ 7.  Petitioner had submitted Medicare claims for home health services furnished to each of these beneficiaries; each claim listed Dr. Pedro Garcia as the referring physician.  Id. at ¶ 6.  Petitioner provided investigators with the records for 29 of the beneficiaries but was unable to produce records for the remaining 54.  Id. at ¶ 7; see also CMS Ex. 11.1  Petitioner represents that it “had not filed all of the paperwork needed to be supplied to Health Integrity” but that “after filing the paperwork, the remainder of the charts were supplied to Health Integrity.”  P. Brief (Br.) at 2.2

On December 3, 2015, a Health Integrity representative met with Dr. Garcia to confirm whether he was actively involved in the care of the beneficiaries identified in Petitioner’s claims.  Health Integrity focused on five exemplar beneficiaries.  CMS Ex. 9 at ¶¶ 7‑9.  As part of its investigation, Health Integrity interviewed Dr. Garcia.  At the request of the investigators, Dr. Garcia reviewed the records of these five beneficiaries and voluntarily attested that he had not ordered home health services for any of them.  Id.; see also CMS Ex. 10.  In addition, Dr. Garcia “disavowed” his purported signature on the medical records for these beneficiaries.  CMS Ex. 9 at ¶ 8.  Dr. Garcia also reviewed a list of beneficiaries for whom Petitioner submitted Medicare claims listing Dr. Garcia as the referring physician.  Id. at ¶ 9.  Dr. Garcia acknowledged that some listed beneficiaries were his patients; however, he identified an additional three beneficiaries who were not his patients and for whom he did not order home health services.  Id.  Health Integrity corroborated Dr. Garcia’s statements by reviewing Medicare Part B claims data that

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revealed Dr. Garcia had not submitted corresponding claims for the eight beneficiaries at issue.  CMS Ex. 4 at 1; CMS Ex. 5 at 5.

Based on the results of the Health Integrity investigation, CMS issued a revocation letter on March 15, 2016, effective April 14, 2016.  CMS Ex. 3.  The revocation included a three‑year re‑enrollment bar.  Id. at 2.  This initial revocation was based on 12 Medicare claims submitted by Petitioner without a valid physician certification for the first 5 beneficiaries identified by Dr. Garcia.  Id. at 1.  Petitioner timely requested reconsideration of the initial revocation.  CMS reopened and revised the initial revocation determination by letter dated May 24, 2016.  CMS Ex. 4.  The reopened initial determination replaced and superseded the March 15, 2016 determination.  Id. at 1.  The reopened and revised revocation found that Petitioner submitted 37 noncompliant claims on behalf of 8 beneficiaries between October 2013 and October 2015.  Id.  The revocation was effective June 23, 2016.  A CMS hearing officer dismissed Petitioner’s first reconsideration request as moot due to the revised notice of revocation.  Petitioner requested reconsideration of the May 24, 2016 revised initial determination.

On October 12, 2016, the hearing officer upheld the revised initial determination.  The reconsidered determination lists 42 C.F.R. § 424.535(a)(8)(ii), Abuse of Billing, and 42 C.F.R. § 424.22, Requirements for home health services, as the reasons for revocation.  CMS Ex. 5 at 1.  The hearing officer recited the factual background and evidence considered in reaching her decision, including the numerous documents and affidavits Petitioner submitted.  Id. at 2‑4.  The hearing officer found that in spite of Petitioner’s declarations that the beneficiaries had been treated by Dr. Garcia, the “lack of claims data gives credence to Dr. Garcia’s contention that he did not treat nor order home health services for the eight beneficiaries.”  Id. at 5.  The hearing officer further noted that 42 C.F.R. § 424.22 requires that home health services be furnished “while the beneficiary is under the care of a physician and the physician must establish and periodically review a plan of care for furnishing services” and that “[w]ithout valid physician orders, plans of care, and face‑to‑face encounters, [Petitioner] failed to meet the requirements set forth in 42 C.F.R. § 424.22.”  Id.  The hearing officer concluded “CMS did not err in its revocation of [Petitioner’s] billing privileges for abuse of billing, in violation of 42 C.F.R. § 4242.535(a)(8)(ii)[sic], because, in submitting twelve3 Medicare claims, it engaged in a pattern of billing for home health care services that were not properly ordered in accordance with Medicare policy at 42 C.F.R. § 424.22.”  Id.

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Petitioner timely filed a hearing request and the case was assigned to me.  I issued an Acknowledgment and Pre‑Hearing Order (Pre‑Hearing Order) on December 16, 2016, establishing a schedule for the parties to file briefs and documentary evidence.  Pursuant to the Pre‑Hearing Order, CMS submitted a Pre-Hearing Brief (CMS Br.) and eleven exhibits (CMS Exs. 2-12).4  Petitioner filed a brief in response (P. Br.), along with eighteen exhibits (P. Exs. 1-18).  Petitioner objected to CMS Ex. 2,5 on the ground that it is confusing.  P. Br. at 14.  I overrule the objection.  CMS Ex. 2 is admitted for the limited purpose of demonstrating that Petitioner was previously enrolled as a Medicare provider.  CMS did not object to the exhibits offered by Petitioner.  However, on my own motion I consider whether P. Ex. 16 is admissible.  Pursuant to 42 C.F.R. § 498.56(e), I must exclude any new evidence that was not offered at the reconsideration level of review, unless the offering party makes a showing of good cause for its failure to offer the evidence earlier.  Petitioner did not identify P. Ex. 16 as new evidence.  However, the document is dated after the reconsideration was issued.  Therefore, P. Ex. 16 could not have been submitted to the hearing officer on reconsideration.  Petitioner made no showing of good cause for the late filing.  Accordingly, I exclude P. Ex. 16.  42 C.F.R. § 498.56(e)(2)(ii).  In summary, I admit CMS Exs. 2‑12 and P. Exs. 1‑15, 17, and 18 into the record.

CMS’s exhibits include the written declarations of Scott Ward and Orin Mills.  At the time of the investigation by Health Integrity, Mr. Ward and Mr. Mills were employed by Health Integrity; Mr. Ward as Health Integrity’s Zone Program Director, and Mr. Mills as Health Integrity’s Assistant Program Integrity Manager.  See CMS Exs. 9, 12.  Their declarations serve to explain Health Integrity’s investigation and to authenticate the data compiled by Health Integrity.  Id.  CMS did not specifically list these individuals as witnesses, but, as stated in my Pre-Hearing Order, each party has the right to cross-examine any witness for whom the opposing party offers admissible written direct testimony, but must make an explicit request to do so.  Pre-Hearing Order ¶ 10.  Petitioner did not request to cross-examine Mr. Ward or Mr. Mills.6  Petitioner’s exhibits

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include patient declarations (P. Ex. 9) and staff declarations (P. Ex. 10).  CMS did not request to cross‑examine any of Petitioner’s proposed witnesses.  Therefore, because neither party requested to cross-examine a witness offered by the opposing party, a hearing is not necessary.  As an in‑person hearing is not necessary, I decide this matter based on the written record.  Pre‑Hearing Order ¶ 11.

II. Issue

The issue in this case 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)(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

As a home health agency, Petitioner is a provider for Medicare purposes.  Act § 1861(u) (42 U.S.C. § 1395x(u)); 42 C.F.R. § 400.202 (definition of provider).  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)).  The Secretary has delegated the authority to revoke enrollment and billing privileges to CMS.  See 42 C.F.R. § 424.535; Letantia Bussell, M.D., DAB No. 2196 at 12 (2008).  CMS’s authority to revoke enrollment and billing privileges is set forth in section 424.535, which provides in relevant part, as follows:

(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:

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(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 claims 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.

(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).

The term “home health services” is defined as “items [or] services furnished to an individual, who is under the care of a physician . . . under a plan (for furnishing such items and services to such individual) established and periodically reviewed by a physician . . .”  Act § 1861(m) (42 U.S.C. § 1395x(m)).  As a condition of payment, a physician must certify that home health services are necessary.  42 C.F.R. § 424.22.  A physician must also re‑certify that a beneficiary is eligible for home health services at regular intervals if a beneficiary continues to receive those services over an extended period of time.  42 C.F.R. § 424.22(b).  A valid physician certification must “be obtained

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at the time the plan of care is established or as soon thereafter as possible and must be signed and dated by the physician who establishes the plan.”  42 C.F.R. § 424.22(a)(1)(v)(B)(1) (emphasis added).7  Similarly, the recertification must be signed and dated by the physician.  42 C.F.R. § 424.22(b)(1).  The regulations additionally require:  1) the physician performing the certification must document a face-to-face encounter with the patient; 2) the encounter must relate to the diagnosis for which the patient requires home health services; and 3) the encounter must occur no more than 90 days prior to the start of care date or within 30 days after the start of care date.

B. Findings of Fact, Conclusions of Law, and Analysis8

1. CMS had a legal basis to revoke Petitioner’s Medicare enrollment and billing privileges pursuant to 42 C.F.R. § 424.535(a)(8)(ii) because Petitioner submitted claims for Medicare reimbursement of home health services that did not comply with 42 C.F.R. § 424.22.

CMS may revoke a provider’s Medicare enrollment and billing privileges if CMS determines that the provider has a “pattern or practice” of submitting claims that do not meet Medicare requirements.  42 C.F.R. § 424.535(a)(8)(ii).  As described above, section 424.22 of the regulations provides that Medicare will not pay for home health services absent a signed, dated physician certification.  Petitioner’s claims failed to comply with this requirement.

a. Petitioner’s claims were not supported by signed and dated physician certifications.

Health Integrity obtained some of the patient records relating to the disputed Medicare claims during an onsite visit at Petitioner’s practice location on December 1, 2015, which CMS now submits as CMS Ex. 8.  CMS Ex. 12.  CMS Ex. 8 includes copies of some of those documents, as Petitioner provided them to investigators.  Id.  In those documents, the home health certifications are undated and lack physician signatures.  See, e.g., CMS Ex. 8 at 1, 4, 6.  Accordingly, the home health certifications in CMS Ex. 8 are facially invalid due to the lack of physician signatures and dates.

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Petitioner argues that its claims met all Medicare requirements.  P. Br. at 4‑5.  Petitioner argues that Dr. Pedro Garcia certified that the beneficiaries at issue required home health services.  Id.  Before me, Petitioner offered P. Exs. 1-8, which purport to contain certifications for the same beneficiaries during the same dates of service as those covered in CMS Ex. 8.  However, close examination of Petitioner’s exhibits reveals that the certifications (as well as other documentation, such as recertifications and plans of care) are not identical to those Petitioner first submitted to CMS when Health Integrity investigated and requested the documents.  For example, the certification and plan of care for beneficiary R.A. for dates of service from November 2013 through January 2014 is both unsigned and undated as obtained by Health Integrity.  CMS Ex. 8 at 25.  Petitioner’s version of the same document remains undated but contains a signature purportedly executed by Dr. Garcia.  P. Ex. 2 at 3.  Petitioner contends that Dr. Garcia’s “signature on [Petitioner’s] forms matches his signature disavowing his missing signature in CMS Ex. 8.”  P. Br. at 5.  Contrary to Petitioner’s assertion, however, the signatures on the documents proffered by Petitioner do not consistently match the disavowing signature used by Dr. Pedro Garcia when he reviewed the medical documents.9  Compare CMS Ex. 8 at 25 with P. Ex. 2 at 3.

In addition, Petitioner’s own records show that not all of the home health certifications were signed and dated.  For example, P. Ex. 2 includes multiple copies of the certification and plan of care for beneficiary R.A. for the November 2013 to January 2014 dates of service.  One of Petitioner’s copies matches the version in CMS Ex. 8, in that it is unsigned and undated.  P. Ex. 2 at 11‑12.  Based on the discrepancies in the purported physician signatures and the inconsistencies between the documents produced to Health Integrity and the documents produced before me, I do not find Petitioner’s submitted documentation reliable.  It seems likely that the documents Petitioner produced following Health Integrity’s onsite visit were altered after the fact to add Dr. Garcia’s signature.  I therefore find by a preponderance of the evidence that Petitioner submitted claims for dates of service for which it lacked physician certifications that were signed and dated.

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But, even if I accepted that Dr. Garcia himself signed the certifications Petitioner produced, I would still find that Petitioner’s claims were noncompliant with Medicare requirements.  This is because, almost without exception, the signatures on Petitioner’s versions of the documents are undated.10  Because the signatures are undated, it is impossible to tell when the signatures were obtained.  Moreover, a dated physician signature is a separate requirement for Medicare payment of home health claims.  42 C.F.R. § 424.22(a)(1)(v)(B)(1).

b.  CMS failed to prove that Dr. Garcia did not treat the identified beneficiaries.

CMS additionally argues that Petitioner’s claims failed to meet Medicare requirements because Dr. Garcia averred that he did not treat the patients at issue.  CMS Br. at 9.  CMS argues that Dr. Garcia’s statement that he did not treat the patients at issue is corroborated by the fact that Dr. Garcia did not submit Part B claims to Medicare for services to the patients.  Id.  If Dr. Garcia did not treat the patients, then Petitioner’s claims would fail to meet Medicare requirements because they would lack a face-to-face encounter between the patient and Dr. Garcia, who is identified as the certifying physician in Petitioner’s records.  CMS points to CMS Ex. 6 in support of its argument.  However, perhaps due to administrative error, CMS Ex. 6 is not a spreadsheet of Medicare Part B Claims related to the disputed beneficiaries; instead, it appears to be identical to CMS Ex. 7, which details the Medicare claims for home health services (Medicare Part A) Petitioner submitted for the disputed beneficiaries.

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Absent the Medicare Part B data, I find the evidence insufficient to prove that Dr. Garcia did not treat the beneficiaries.11  It is therefore unnecessary for me to evaluate the reliability of the declarations of Petitioner’s staff and patients on this point.  I nevertheless conclude that the failure to establish this ground is not a basis to overturn the revocation because, as I have found above, CMS established that Petitioner exhibited a pattern of submitting claims for home health services that are unsupported by a signed and dated physician certification, as required by 42 C.F.R. § 424.22.

2. CMS did not apply 42 C.F.R. § 424.535(a)(8)(ii) retroactively.

Once CMS determined that Petitioner had a pattern or practice of submitting claims for Medicare payment that failed to comply with 42 C.F.R. § 424.22, it had a basis to revoke Petitioner’s Medicare enrollment and billing privileges pursuant to 42 C.F.R. § 424.535(a)(8)(ii).  Petitioner argues that CMS may not rely on 42 C.F.R. § 424.535(a)(8)(ii) because the “provision at (a)(8)(ii) was added by amendment effective February 3, 2015” and “CMS should be limited just to (a)(8)(i) because (ii) was not applicable to the time period in which the claims at issue were made.”  P. Br. at 6.  I do not find persuasive Petitioner’s contention that section 424.535(a)(8)(ii) cannot be a basis to revoke its Medicare enrollment and billing privileges.

Petitioner appears to be arguing that section 424.535(a)(8)(ii) does not apply because some noncompliant claims were for dates of service prior to the regulation’s effective date.  I acknowledge that, in promulgating section 424.535(a)(8)(ii), CMS stated that it did not previously have authority to revoke a provider’s Medicare enrollment and billing privileges based on a pattern of submitting noncompliant claims.  See 79 Fed. Reg. 72,500, 72,515 (Dec. 5, 2014) (CMS “currently [does] not have the ability to revoke a provider or supplier’s billing privileges based on a pattern or practice of submitting noncompliant claims, hence the need for § 424.535(a)(8)(ii)”).12

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Thus, in promulgating section 424.535(a)(8)(ii), CMS gave notice to providers and suppliers that their Medicare enrollment and billing privileges were subject to revocation on and after February 3, 2015, if the provider or supplier demonstrates a pattern of submitting noncompliant claims.  While Petitioner’s pattern of billing for home health services without valid signed and dated physician certifications may have begun prior to February 3, 2015, the pattern continued beyond that date.  CMS presented evidence that Petitioner continued to submit noncompliant claims until at least October 2015.  See CMS Ex. 7; see also P. Ex. 3 at 9-10, 17-18.  Neither the regulation nor the preamble suggests that CMS is prevented from revoking a provider’s Medicare enrollment where the pattern of improper billing was first evident in claims submitted for services rendered before the effective date of the regulation, when the pattern is ongoing.  In any event, providers are obligated to submit complete and accurate claims to Medicare at all times.  See generally Heckler v. Cmty. Health Servs. of Crawford Cnty., Inc., 467 U.S. 51, 63 (1984); see also Louis J. Gaefke, D.P.M., DAB CR2758 (2013).

Because I have concluded that section 424.535(a)(8)(ii) may be a basis for revoking Petitioner’s Medicare enrollment and billing privileges, I next consider Petitioner’s alternative argument that I should overturn the revocation because “CMS failed to show that it considered the regulatory requirements for revocation under such regulation.”  P. Br. at 6.

3. There is no basis to conclude that CMS failed to consider the factors listed at 42 C.F.R. § 424.535(a)(8)(ii)(A)-(F).

Petitioner contends that “[n]either CMS, nor the hearing officer on Reconsideration indicates they reviewed and followed [42 C.F.R. § 424.535(a)(8)(ii)(A)-(F)] in making their decision to revoke this provider’s enrollment in Medicare.”  P. Br. at 7.  Petitioner’s argument is not a basis to overturn the revocation.  First of all, there is no requirement that CMS or its contractor explain its reasons for taking a discretionary action.  Brian K. Ellefsen, D.O., DAB No. 2626 at 9‑10 (2015).  See also Douglas Bradley, M.D., DAB No. 2663 at 14 (2015) (a reviewing official may presume that “government officials have ‘properly discharged their official duties’ absent ‘clear evidence to the contrary’” (internal citations omitted)).  Petitioner has presented no clear evidence that CMS failed to conduct a proper review under 42 C.F.R. § 424.535(a)(8)(ii)(A)-(F).

To the contrary, even if explicit discussion of the factors enumerated at 42 C.F.R. § 424.535(a)(8)(ii)(A)-(F) were required, I would conclude that CMS complied with the regulation.  The record demonstrates that CMS’s hearing officer fully explained the rationale for CMS’s reconsidered determination.  See CMS Ex. 5.  For example, the hearing officer analyzed why Petitioner’s claims did not meet the Medicare requirements

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listed at section 424.22, thus satisfying the criterion at 42 C.F.R. § 424.535(a)(8)(ii)(B).  The reconsidered determination also noted that this pattern or practice lasted over the course of two years, consistent with 42 C.F.R. § 424.535(a)(8)(ii)(C).  Finally, as stated in 42 C.F.R. § 424.535(a)(8)(ii)(F), the reconsidered determination includes “other information . . . that CMS deems relevant to its determination as to whether the provider or supplier has or has not engaged in the pattern or practice,” in particular, CMS described the Health Integrity investigation concerning Dr. Garcia’s involvement (or lack thereof) with the beneficiaries.  I therefore find that the reconsidered determination addresses the regulatory criteria “as appropriate or applicable” within the meaning of 42 C.F.R. § 424.535(a)(8)(ii).

I acknowledge that the reconsidered determination does not address 42 C.F.R. § 424.535(a)(8)(ii)(A), the percentage of claims denied.  Petitioner asserts that the disputed claims represent only 2.6% of its total claims to Medicare during the relevant time period.  See P. Br. at 7.  It appears to be Petitioner’s contention that 2.6% of its claims is too insignificant to represent a pattern.  I disagree.  The preamble to the final rulemaking for this provision explicitly declined to set a minimum percentage that would constitute a “pattern or practice.”  79 Fed. Reg. at 72,514. 

CMS asserts that Petitioner submitted 37 noncompliant claims for 8 beneficiaries.  Petitioner does not explicitly dispute these numbers.  Nevertheless, before me, CMS did not identify the specific 37 claims it contends are noncompliant.  Based on my own review of the records, I find that the claims identified in Attachment A were noncompliant because they lacked a signed and dated physician certification.  This amounts to 29 improper claims totaling $45,004.73.  I find that Petitioner’s submission of 29 improper claims over a two-year period represents more than an isolated instance of noncompliance with Medicare billing requirements.13 Further, Medicare paid over $40,000 for claims that did not meet the regulatory requirements for Medicare payment.  CMS Ex 7.  This put the Medicare trust fund at risk.

In summary, I conclude that Petitioner demonstrated a pattern of submitting home health claims to Medicare that do not meet the requirements for Medicare payment set forth in 42 C.F.R. § 424.22; accordingly, CMS had a legal basis to revoke Petitioner’s enrollment due to abuse of billing privileges within the meaning of 42 C.F.R. § 424.535(a)(8)(ii).

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V. Conclusion

For the foregoing reasons, I affirm CMS’s determination to revoke Petitioner’s Medicare enrollment and billing privileges.

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AVIDA CARE SERVICES
C-17-179
ATTACHMENT A
BENEFICIARY LIST

• 1. CMS Ex. 11 is a statement signed by Petitioner’s administrator, in which she acknowledges that Petitioner did not provide Health Integrity with all requested beneficiary records.  The administrator’s statement indicates that 26 beneficiary records, rather than 29 records, were provided.  The difference between 26 records and 29 records is not material to any issue before me.
• 2. This statement is ambiguous.  The statement could be read as an admission that, at the time Health Integrity made the unannounced visit, Petitioner did not have the proper paperwork to support its claims, but gathered the supporting paperwork afterward.  However, it appears to be Petitioner’s position that, at the time Health Integrity made its unannounced visit, Petitioner had in its possession documents related to the care of the identified beneficiaries; that Petitioner had not yet associated the documents with the appropriate beneficiary’s medical record; and that Petitioner provided copies of the records to Health Integrity after Petitioner associated the documents with the correct files.  The latter interpretation would draw support from P. Ex. 16.  However, as discussed below, P. Ex. 16 is excluded from evidence.  In any event, I need not decide whether Petitioner’s documents were created after the fact because, even if the documents were contemporaneous with the care provided, they do not meet Medicare requirements.
• 3. As noted earlier in the reconsidered determination, there are 37 claims at issue for 8 beneficiaries from the revised revocation decision.  I presume that this is merely a typographical error in the reconsidered determination as it was the revised revocation decision for the 37 claims that was upheld.
• 4. CMS’s Exhibit List indicates that CMS Ex. 1 was intentionally omitted.
• 5. Petitioner framed its objection as pertaining to CMS Ex. 1.  As just described, CMS did not offer an Ex. 1.  Based on the content of Petitioner’s objection, I infer that Petitioner intended to object to CMS Ex. 2.
• 6. Petitioner requested “an oral telephonic hearing so the ins and outs of the business’s dealings with Dr. Garcia can be fully discussed.”  P. Br. at 15.  This statement does not meet the requirements of my Pre-Hearing Order.  Neither party listed Dr. Garcia as a witness and, as described above, neither party requested cross-examination of a witness for whom a declaration was provided.
• 7. The home health regulations have undergone many revisions.  I cite to the 2015 version here.  Nonetheless, the requirements for a physician to sign and date the certification (or recertification) for home health care and to document a face-to-face encounter were present in prior versions of the regulations.
• 8. My findings of fact and conclusions of law appear as headings in bold italic type.
• 9. I claim no expertise in handwriting analysis, but the wide variation in the versions of Dr. Pedro Garcia’s signature throughout Petitioner’s exhibits, which is visible to the untrained eye, does cast doubt as to the authenticity of the signatures.  Compare CMS Ex. 8 at 25 with P. Ex. 2 at 3, P. Ex. 4 at 1, P. Ex. 8 at 2, P. Ex. 8 at 13.  Another factor leading me to question the authenticity of Dr. Garcia’s signatures is the presence of signatures that appear identical (i.e. not merely similar) across documents that purport to have been created on different dates.  See, e.g.,P. Ex. 2 at 44, 45; P. Ex. 4 at 12, 16, 21; see also P. Ex. 2 at 48; P. Ex. 3 at 22, 40; P. Ex. 4 at 27, 28.  The identical appearance of these signatures is particularly problematic given Petitioner’s assertion that Dr. Garcia’s signatures were not affixed using a stamp.  See P. Br. at 5.
• 10. Attachment A to this decision is a table identifying the beneficiaries (by their initials and the last four digits of their social security/health insurance claim numbers) and dates of service at issue.  The attachment also references the corresponding exhibit and page numbers at which the certification and recertification documents appear.  The documents cited in the attachment are those produced by Petitioner in support of its assertion that its claims were fully compliant with Medicare requirements.  The physician signatures on these documents are undated.  Some of the documents include what appears to be a “received” stamp, on which a handwritten date has been added.  See, e.g., P. Ex. 2 at 48; P. Ex. 4 at 12, 21.  I infer that the stamps and handwritten dates were added to the documents by Petitioner’s staff.  Thus, these markings do not satisfy the requirement that the certifying physician sign and date the document.
• 11. I do not conclude that Dr. Garcia did, in fact, treat the disputed beneficiaries.  My finding is limited to a determination that the evidence of record does not establish whether he did or did not treat them.
• 12. Indeed, the previous lack of regulatory authority to revoke billing privileges is a key factor in the administrative law judge’s decision in TEHC, LLC, DAB CR4371 (2015), on which Petitioner relies.  See P. Br. at 10, 14.  That case involved a revocation pursuant to section 424.535(a)(1), based on allegedly noncompliant claims that had been submitted before section 424.535(a)(8)(ii) became effective.  At least in part, the TEHC decision turned on whether section 424.535(a)(1) afforded a home health provider sufficient notice that its billing privileges might be revoked based on problems with a referring physician’s signatures.  No such notice problem is present here.  For that reason, I do not find the reasoning in TEHC persuasive.
• 13. At the time 42 C.F.R. § 424.435(a)(8) was promulgated, the regulation’s drafters stated that CMS would regard as few as three instances of improper billing as grounds for revocation. 73 Fed. Reg. 36,448, 36,455 (June 27, 2008). While this explanation applies directly only to the revocation basis now codified at 42 C.F.R. § 424.435(a)(8)(i), I view it as illustrative of the point that a relatively small number of improper claims may nevertheless demonstrate a pattern of abusive billing.