Infocus Health, LLC, DAB CR5435 (2019)

DECISION

I sustain the determination of the Centers for Medicare & Medicaid Services (CMS) to revoke the Medicare billing privileges of Petitioner, Infocus Health, LLC, a home health agency.  The evidence establishes that Petitioner engaged in a pattern or practice of filing invalid claims, justifying revocation pursuant to 42 C.F.R. § 424.535(a)(8)(ii).

I. Background

I held a hearing in this case on July 17, 2019.  At the hearing I received into evidence exhibits identified by CMS as CMS Ex. 1-CMS Ex. 17, and I received into evidence exhibits identified by Petitioner as P. Ex. 1-P.Ex. 5 and P. Ex. 9.  I sustained Petitioner’s objection to statements, contained within CMS’s exhibits, from two inspectors who worked on behalf of a CMS contractor and on whose behalf CMS had originally submitted written direct testimony, which Petitioner had requested to cross-examine, before CMS withdrew that testimony prior to the hearing.  Tr. at 6-9.  I heard the cross-

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examination testimony of Ms. Agnes Anyalebechi, whose written direct testimony is in evidence as P. Ex. 2.1

II. Issues, Findings of Fact and Conclusions of Law

A. Issue

The issue in this case is whether Petitioner engaged in a pattern or practice of filing invalid claims, thereby justifying revocation of its Medicare billing privileges.

B. Findings of Fact and Conclusions of Law

CMS relies on the authority conferred by 42 C.F.R. § 424.535(a)(8)(ii) as a basis for revoking Petitioner’s Medicare billing privileges.  This relatively new section of the regulations (it became effective in February 2015) authorizes CMS to revoke a supplier’s or a provider’s billing privileges where there exists a “pattern or practice of submitting claims that fail to meet Medicare requirements.”  The regulation lists factors that CMS may consider in deciding whether to revoke.  These include, among other things, the reasons for the claim denials.  42 C.F.R. § 424.535(a)(8)(ii)(B).

The evidence establishes ample basis for CMS’s determination to revoke.  Here, Petitioner submitted or caused to be submitted numerous claims for Medicare reimbursement that were patently invalid.  Indeed, these claims were invalid on their face, and Petitioner either knew or should have known that they were not legitimately reimbursable.  The scope and nature of Petitioner’s noncompliance with Medicare billing requirements establishes that Petitioner was at least indifferent to those requirements and, certainly, slipshod in complying with them.

I take notice that home health agencies provide eligible Medicare beneficiaries with many of the services that skilled nursing facilities provide to their residents.  The advantage to beneficiaries of home health care is that they may receive these services without leaving their homes.

Congress and CMS enacted stringent participation requirements to assure that home health agencies do not claim reimbursement for unjustified services.  A participating home health agency must comply with these requirements in order to maintain its eligibility to obtain reimbursement for its claims.  Reimbursement claims for home health benefits will be denied if these requirements are not satisfied.  42 C.F.R. § 424.22(c).

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A home health agency may not receive reimbursement from Medicare for services rendered to a beneficiary unless it has first obtained a valid certification signed by a physician attesting to the homebound status of the beneficiary and to the beneficiary’s need for home health services.  42 U.S.C. §§ 1395f(a)(2)(C), 1395n(a)(2)(A); 42 C.F.R. § 424.22(a)(2).2

Prior to executing a certification of need for home health services, the physician, or a nurse practitioner working in collaboration with the physician, must have a face-to-face encounter with the beneficiary whose care is at issue.  The certifying physician must document the date of the face-to-face encounter.  42 C.F.R. § 424.22(a)(1)(v).

Petitioner filed or caused to be filed claims that clearly violated these requirements.  Most significantly, Petitioner submitted claims that included certifications of need for 23 Medicare beneficiaries purportedly signed by a physician, Dr. Lynn Gibbs, that were not, in fact, signed by this physician.  At the hearing, Ms. Anyalebechi admitted that she signed these forms on Dr. Gibbs’ behalf.  Tr. at 14.  Neither the Medicare Act nor implementing regulations permit a physician to delegate his or her authority to execute certifications of need to a non-physician.  The purported delegation in this case was plainly unlawful, and it invalidated all of the 57 reimbursement claims for services allegedly authorized by Dr. Gibbs on behalf of those 23 beneficiaries.

Petitioner should have known that these claims were invalid.  First, it had a duty to assure that Dr. Gibbs personally authorized the services involved in the claims.  It could have done so simply by asking the physician whether the signatures were genuine.  Moreover, there are irregularities in the purported authorizations that put Petitioner on notice that the physician’s signatures might not have been genuine.

In five instances, the purported certifications that Petitioner submitted were undated, contrary to regulatory requirements.  P. Ex. 5 at 115, 144, 211, 252, and 254.  That noncompliance, in and of itself, put Petitioner on notice that the purported certifications for these beneficiaries were invalid.  Petitioner should not have submitted these certifications.  Prior to submitting them, it should have contacted the physician and inquired about their genuineness.

There were other irregularities in the claims filed by Petitioner that rendered them invalid.  Petitioner failed to provide valid proof of six face-to-face encounters for five of the beneficiaries for whom Petitioner filed reimbursement claims.  P. Ex. 5 at 144, 165, 221, 252, and 254.  In four instances Petitioner failed to document the dates of the purported face-to-face encounters.  P. Ex. 5 at 19, 42, 125, and 175.  In the case of one

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beneficiary, Petitioner submitted documentation of a face-to-face encounter that allegedly occurred on August 1, 2017, even though the physician’s purported signature on the face-to-face encounter form predated that alleged encounter by nearly two months.  P. Ex. 5 at 70.

I have considered Petitioner’s arguments and find them to be without merit.  Petitioner’s principal argument is that Ms. Anyalebechi was lawfully authorized under Texas state law to serve as Dr. Gibbs’s proxy.  Petitioner’s post-hearing brief at 2-3.  Texas law is irrelevant.  The requirement that the physician personally sign the certification of need is a federal requirement that supersedes any state law.  Petitioner, as a participant in Medicare, was responsible for knowing and complying with the requirements of the Medicare Act and implementing regulations.  Heckler v. Cmty. Health Servs. of Crawford Cnty., Inc., 467 U.S. 51, 64 (1984) (“As a participant in the Medicare program, respondent had a duty to familiarize itself with the legal requirements for cost reimbursement.”).  It is no excuse that something plainly required by applicable federal law might arguably not be required by state law.

Petitioner argues additionally that its previously unblemished history as a participating Medicare provider demonstrates its reliability.  Petitioner’s post-hearing brief at 3-4; see 42 C.F.R. § 424.535(a)(8)(ii)(C)-(E).  I would find that history to be persuasive if the invalid claims submitted by Petitioner were sporadic and did not comprise a pattern of invalidity.  But, here, the overwhelming evidence proves that there was a systemic failure by Petitioner to assure that its reimbursement claims were valid.  As I have discussed, Petitioner’s failure to assure that its reimbursement claims were valid involved about five dozen claims, and the invalid aspects of these claims had similar or identical features.  Petitioner certainly should have known that Dr. Gibbs’ purported signatures on certifications of need were suspect, especially given the fact that several of these purported certifications had irregularities in addition to Dr. Gibbs’s purported signatures.

Petitioner also argues that it had a system in place to assure that its claims conformed to Medicare reimbursement requirements.  Petitioner’s post-hearing brief at 3-4.  It contends that it systematically reviewed documents that it received from Dr. Gibbs to assure that the physician’s signature was genuine.  Id. at 4.  But, in fact, it plainly did not perform the due diligence that it contends that it performed.  Petitioner’s lack of due diligence is made evident by the fact that Petitioner submitted claims that were purportedly documented with forms that were patently irregular.

Finally, Petitioner argues that it provided “good and valuable services” to beneficiaries and that it should not be penalized for what it implies are mere technical deficiencies.  Petitioner’s post-hearing brief at 5.  However, the argument avoids the fact that the claims submitted by Petitioner were facially invalid because Petitioner submitted them in plain contravention of applicable law and in violation of its duty to assure that its claims were valid.  It is, indeed, arguable that the services for which Petitioner claimed

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reimbursement were not “good and valuable,” given the possibility that these beneficiaries might not have been certified for home health care had the physician personally reviewed the need for such services.

• 1. Ms. Anyalebechi’s testimony begins at page 9 of the hearing transcript and continues through page 14.  The transcript incorrectly attributes to Petitioner’s counsel questions asked beginning on line 16 of page 13 and continuing through line 5 of page 14 when, in fact, I asked those questions and elicited the responses given by the witness.
• 2. Periodic recertifications of need for home health services must also be signed by a physician.  42 C.F.R. § 424.22(b)(1).