Cardiac Imaging Associates A Medical Corporation, DAB CR5524 (2020)

DECISION

Respondent, the Centers for Medicare & Medicaid Services (CMS), acting through its administrative contractor Noridian Healthcare Solutions (Noridian), revoked the Medicare enrollment and billing privileges of Cardiac Imaging Associates A Medical Corporation (Petitioner or Cardiac Imaging) because Petitioner was not operational at a practice location on record with CMS. For the reasons stated below, I affirm CMS’s revocation of Petitioner’s Medicare enrollment and billing privileges.

I. Background

Petitioner is a medical corporation that first enrolled as a biller in the Medicare program in 2002. CMS Exhibit (Ex.) 4 at 1. Petitioner submitted a Medicare enrollment application in February 2010, at which time it added a physical practice location, 8581 Santa Monica Blvd. #471, West Hollywood, California 90069 (the West Hollywood address). CMS Ex. 4 at 5; CMS Ex. 5 at 18.

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A Medicare site visit contractor conducted a visit to the West Hollywood address on February 5, 2016, at which time the contractor documented that the location was a UPS store, not a medical practice. CMS Exs. 1-3. The inspector took pictures of the West Hollywood address confirming it was in fact a UPS store. CMS Ex. 1 at 1-2.

On November 15, 2016, Noridian issued an initial determination to Petitioner informing it that its Medicare enrollment and billing privileges were revoked as of February 5, 2016, and barring Petitioner from re-enrollment for a period of two years. CMS Ex. 7. The letter stated in pertinent part:

42 CFR § 424.535(a)(5) - On-site Review/Other Reliable Evidence that Requirements Not Met

You are no longer operational to furnish Medicare covered items or services. A site visit conducted on February 5, 2016, at 8581 Santa Monica Blvd, 471, West Hollywood, CA 90069‑4120 confirmed that you are non‑operational.

Id. at 1 (emphasis in original). The letter also cited 42 C.F.R. § 424.535(a)(9), Failure to Report Changes, as a basis for revocation. Id.

Petitioner sought reconsideration on January 10, 2017. CMS Ex. 6. On March 9, 2017, Noridian issued an unfavorable reconsidered determination that upheld its initial determination to revoke Petitioner’s Medicare enrollment and billing privileges for being non‑operational and for failing to notify CMS of this change in practice location. Id. CMS Ex. 8 at 1. Noridian explained that the “revocation will be upheld due to the on‑site confirming that the practice location in the enrollment is not an operational practice location” and that “[t]here are no change of information applications able to be located removing this practice location from the enrollment.” Id. at 2.

Petitioner timely requested a hearing before an administrative law judge on April 4, 2017. ALJ Scott Anderson was designated to hear and decide this case. On April 17, 2017, Judge Anderson issued an Acknowledgment and Pre-Hearing Order (Order) that directed the parties to each file a pre-hearing exchange consisting of a brief and any supporting documents, and also set forth the deadlines for those filings. Order at ¶ 4. Judge Anderson required the parties to submit written direct testimony for any witnesses in lieu of in-person direct testimony. Order at ¶ 8. He also advised the parties that he would only hold a hearing in this matter for the purpose of cross-examination of witnesses. Order at ¶¶ 9, 10. On August 25, 2017, this matter was transferred to me. I adopt Judge Anderson’s Order in its entirety.

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II. Admission of Exhibits and Decision on the Record

Neither party requested cross-examination of the opposing party’s witnesses. Consequently, I will not hold an in-person hearing in this matter, and I issue this decision based on the written record. Civ. Remedies Div. P. § 19(d).

CMS filed a brief and eight exhibits (CMS Exs. 1-8). Petitioner, through counsel, filed a brief (P. Br.) and two exhibits (P. Exs. 1‑2). In the absence of objections by CMS, I admit P. Exs. 1‑2. Petitioner objects to CMS Exs. 1-3, which contain the site visit report, color photographs from the site visit, and a declaration from James Neujahr, the site inspector. P. Br. at 17‑18. Petitioner contends that the credibility of CMS’s evidence regarding site verification is “called into question when photographs are not date and time stamped and the declaration is not dated and signed or there is reason to question the date and time information on the photographs.” Id. at 17 (emphasis in original). Petitioner suggests that the lack of date and time stamping on the photographs could “explain the delayed notice of the revocation notice.” Id. Petitioner asserts that “since the evidence cannot be objectively validated and is prejudicial to Petitioner” it should be excluded. Id. at 18.

I overrule Petitioner’s objections concerning CMS Exs. 1‑3. Petitioner’s objections as to authenticity appear to be addressed by the declaration CMS introduced from Mr. Neujahr, signed under penalty of perjury. CMS Ex. 3. To the extent Petitioner wished to undermine or test Mr. Neujahr’s authentication, it could have requested to cross-examine Mr. Neujahr. It has not done so. In any event, because these proposed exhibits are relevant to the question of whether Petitioner was non-operational at the listed practice location, I find them admissible. 42 C.F.R. § 498.60(b)(1) (“The ALJ inquires fully into all of the matters at issue, and receives in evidence the testimony of witnesses and any documents that are relevant and material.”). CMS Exs. 1‑3 are admitted into the record.

Petitioner also objects to CMS Ex. 4, the summary of its enrollment information from CMS’s Provider Enrollment, Chain, and Ownership System (PECOS). P. Br. at 14. Petitioner argues that the PECOS summary only shows a record of data kept in the database maintained by CMS and its contractors and “does not contain any application forms signed by Cardiac Imaging requesting to delete any [practice locations].” Id. (emphasis in original).

Petitioner does not explain why a summary of enrollment information is irrelevant.1 Though it may not include underlying documentation, the summary still contains information relevant to the question of Petitioner’s practice locations on record with CMS. CMS Ex. 4 is admitted to the record.

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III. Issue

Whether CMS has a legal basis to revoke Petitioner’s Medicare enrollment and billing privileges because Petitioner was not operational at the practice location on file with CMS.

IV. Jurisdiction

I have jurisdiction to decide this case. 42 C.F.R. §§ 498.3(b)(17), 498.5(l)(2); see also 42 U.S.C. § 1395cc(j)(8).

V. Findings of Fact, Conclusions of Law, and Analysis2

As a physician, 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). In order to participate in the Medicare program as a supplier, individuals must meet certain criteria to enroll and receive billing privileges. 42 C.F.R. §§ 424.505, 424.510. CMS may revoke the enrollment and billing privileges of a supplier for any reason stated at 42 C.F.R. § 424.535.

A revocation typically becomes effective 30 days after CMS mails the initial determination revoking Medicare billing privileges, but if CMS finds a supplier to be non-operational, as it did here, revocation is effective from the date that CMS determines that the supplier was not operational. 42 C.F.R. § 424.535(g). A supplier is non-operational if CMS determines upon on-site review that it is “[n]o longer operational to furnish Medicare-covered items or services.” 424.535(a)(5)(i).

When CMS revokes a supplier’s Medicare billing privileges, CMS establishes a re-enrollment bar for a period ranging from one to three years. 42 C.F.R. § 424.535(c).

1. On February 5, 2016, Petitioner’s Medicare enrollment record showed a practice location of 8581 Santa Monica Boulevard #471, West Hollywood, CA 90069, and no other practice location address.

In March 2010, Petitioner added the West Hollywood address as a practice location in CMS’s PECOS system. CMS Ex. 4 at 5; CMS Ex. 5 at 18, 38. Since February 2012, the West Hollywood address has been the only location on file with CMS. CMS Ex. 4. The PECOS enrollment summary reflects Petitioner’s other practice locations had all been deleted by 2012. Id. at 2-6.

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Petitioner argues that following CMS’s approval of its March 2010 enrollment update, “Cardiac Imaging made no further changes to its reported practice locations.” P. Br. at 3 (emphasis in original). Petitioner observes that CMS Exhibit 4 “does not include any letter, application forms, or any other correspondence from Petitioner requesting to delete any of the locations on file since 2010.” Id. at 4.

To support its claim that CMS Exhibit 4 is inaccurate, Petitioner provided a “Medicare ID report” from the Medicare enrollment database as part of its request for reconsideration that showed a termination date of February 5, 2016 for all of Petitioner’s practice locations. Id. at 13, citing CMS Ex. 6 at 35. As CMS correctly explains, however, the Medicare ID report shows the periods of enrollment for a given Medicare ID, not specific effective start and end dates for a supplier’s individual practice locations. CMS Br. at 5.

Here, the Medicare ID report shows that Petitioner’s Medicare ID was associated with five practice locations at various times during Petitioner’s enrollment from February 13, 2002 to February 5, 2016. This information is fully consistent with CMS Ex. 4, which also identifies the five addresses but further specifies that, by February 1, 2012, only the West Hollywood address remained active. CMS Ex. 6 at 35. This information is fully consistent with the “Medicare ID Historical Data” found in CMS Ex. 4. CMS Ex. 4 at 1. Petitioner’s claim that the Medicare ID Report undermines the summary of active practice locations found in CMS Ex. 4 is therefore without merit.

Petitioner concedes it provided the West Hollywood address as one of its practice locations, explaining “. . . it reported the location because it understood, perhaps mistakenly,3 that wanting to use this location (which had a street address) as its Special Payments address required the location to be listed in Section 4.A as well as Section 4.B.” P. Br. at 5. But Petitioner argues that CMS has not produced evidence that Petitioner deleted its other practice locations. But neither has Petitioner submitted any evidence to contest the accuracy of the PECOS summary record proffered by CMS as CMS Ex. 4.

Although the underlying data that forms the basis of the PECOS summary was not submitted, nor any evidence regarding the record-keeping and reliability of the system, I must conclude in the absence of contrary evidence that CMS’s record-keeping is reliable and trustworthy, and that CMS Ex. 4 is accurate. U.S. Postal Serv. v. Gregory, 534 U.S. 1, 10 (2001); U.S. v. Chem. Found., 272 U.S. 1 at 14-15 (1926) (“The presumption of

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regularity supports the official acts of public officers, and, in the absence of clear evidence to the contrary, courts presume that they have properly discharged their official duties.”); Brian K. Ellefsen, D.O., DAB No. 2626 at 7 (2015).

Thus, relying on CMS Ex. 4, I find that by February 2012, the West Hollywood address was the only practice location for Petitioner on file with CMS, and therefore the only location to consider in determining whether Petitioner was operational during the site inspection.

2. Petitioner’s practice location on file with CMS was not operational on the date of the site inspection.

On February 5, 2016, James Neujahr, a CMS inspector, visited the West Hollywood address, the address Petitioner had reported as its practice location, to attempt a “site verification survey.” CMS Ex. 1. Mr. Neujahr determined that the location was in fact a commercial mailbox location. Id. at 1. Mr. Neujahr took pictures of the UPS store at this location as part of his inspection and report. CMS Exs. 2, 3.

Petitioner does not dispute that it listed the West Hollywood address as a practice location. Petitioner instead questions the veracity of the site report and the photographs because they were not date- and time-stamped, as required by section 15.20.1.C of the Medicare Program Integrity Manual (MPIM). P. Br. at 17. However, Mr. Neujahr’s declaration cures this deficiency, as he verified the date and time he took the photographs and conducted the site inspection that forms the basis of the site report at issue here. CMS Ex. 3. Petitioner has provided no basis to question Mr. Neujahr’s honesty or reliability. I find him to be credible, and therefore conclude the site report and photographs that accompany it accurately reflect that the West Hollywood address listed by Petitioner as a practice location is in fact a UPS store.

As such, I find the West Hollywood address identified by Petitioner to CMS as a practice location was not operational as a medical office on the date of the site inspection conducted by CMS.

3. CMS had a legal basis to revoke Petitioner’s Medicare enrollment and billing privileges because it was not operational pursuant to 42 C.F.R. § 424.535(a)(5) at the practice location on file with CMS.

Despite the fact that Petitioner listed a UPS store as a practice location, Petitioner argues that it was operational at the time of the site inspection.

A supplier is “operational” when the supplier:

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has a qualified physical practice location, is open to the public for the purpose of providing health care related services, is prepared to submit valid Medicare claims, and is properly staffed, equipped, and stocked (as applicable, based on the type of facility or organization, provider or supplier specialty, or the services or items being rendered) to furnish these items or services.

42 C.F.R. § 424.502. In order “[t]o be ‘operational’ in accordance with the definition in section 424.502, a provider [or supplier], among other things, must have a ‘qualified physical practice location’ that is ‘open to the public for the purpose of providing health care related services.” Viora Home Health, Inc., DAB No. 2690 at 7 (2016). A provider’s or supplier’s qualified physical practice location is the provider’s or supplier’s address on file with CMS at the time of a site visit. Foot Specialists of Northridge, DAB No. 2773 at 8-10 (2017).

CMS may revoke a currently enrolled supplier’s Medicare billing privileges in the following circumstance:

Upon on-site review or other reliable evidence, CMS determines that the provider or supplier is . . . :

(i) No longer operational to furnish Medicare-covered items of services.

42 C.F.R. § 424.535(a)(5)(i).

In this case, the site inspector attempted to conduct a site visit at the address Petitioner provided as its practice location, the West Hollywood address. It is undisputed that this address identified a UPS store, which was not a location that is “open to the public for the purpose of providing health care related services.” 42 C.F.R. § 424.502 (definition of Operational).

Petitioner maintains that it was operational at the time of the site visit because it had other qualified practice locations. P. Br. at 6‑7. I have already explained that CMS’s official record of Petitioner’s practice locations did not list any additional active practice locations other than the West Hollywood address at the time of the site inspector’s visit. Petitioner also argues that CMS’s own policy guidance allows for the definition of operational to be “based on the type of facility, supplier specialty or the services or items being rendered.” Id. at 7 (citing MPIM, CMS Pub. 100‑08, Ch. 15 § 15.1.1). Petitioner argues it should be treated differently for the purpose of determining whether it was operational, comparing itself to a physical therapist who performs services in patients’ homes. Id. at 8. Petitioner urges that “CMS must be required to apply its enrollment

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policies in a manner that takes each provision of the definition into consideration when making determinations regarding whether a particular provider or supplier is ‘operational.’” Id. at 10.

As a preliminary matter, CMS’s determination to revoke a provider’s or supplier’s enrollment is discretionary, and my review is limited to deciding whether the CMS contractor had a “legal basis” for its action. Letantia Bussell, M.D.,DAB No. 2196 at 10 (2008); see Abdul Razzaque Ahmed, M.D.,DAB No. 2261 at 19 (2009) (stating if CMS establishes that the regulatory elements necessary for revocation are satisfied, an administrative law judge may not substitute his or her “discretion for that of CMS in determining whether revocation is appropriate under all the circumstances”), aff’d, Ahmed v. Sebelius,710 F. Supp. 2d 167 (D. Mass. 2010).

In any event, Petitioner’s attempt to liken its situation to a provider of home services is inapt; CMS’s forms contemplate the possibility that a provider or supplier may primarily work in patients’ homes without need for an office; in that scenario, the provider or supplier is instructed to list a home address. CMS Ex. 5 at 70 (“If you only render services in patients’ homes (house calls), you may supply your home address in this section if you do not have an office.”). But Petitioner did not list a home address from which it presumably provided services at patients’ homes; instead, it only identified one practice location, a UPS store. Once CMS determined that the West Hollywood address was a commercial mailing address and not an operational practice location, it had a legal basis to revoke Petitioner’s enrollment and billing privileges.

Petitioner’s remaining arguments provide no basis for relief. Petitioner contends that CMS’s failure to provide a copy of the site verification documents at the time of reconsideration prevented it from addressing any potential irregularities. P. Br. at 15. Similarly, Petitioner contends Noridian allegedly confirmed it did not have these documents after the initial site visit, suggesting Noridian had no basis to determine Petitioner was non-operational. Id. Petitioner also argues that it was prejudiced when CMS waited eight months to notify it of the “retroactive” revocation effective date of February 5, 2016. Id. at 18. Petitioner relies on a provision of the MPIM that states CMS has seven days to issue a revocation notice to support its assertion that the effective date was erroneously determined. Id. at 18‑19.

Petitioner’s claim that Noridian had no basis to determine it was non-operational has no merit, since I have already determined the evidence submitted by CMS provides a factual basis to make that determination. Similarly, the fact that CMS’s administrative contractor failed to act on Petitioner’s revocation for eight months after the site visit upon which the revocation was based does not establish “affirmative misconduct” such that CMS would be estopped from revoking Petitioner’s billing privileges. US Ultrasound, DAB No. 2302 at 8 (2010).

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Even if this delay amounted to such an offense, I do not have the authority to fashion equitable remedies. Id. I agree CMS waited an inordinate amount of time to inform Petitioner about its revocation, and has not proffered an explanation for waiting nearly nine months to do so. I also agree Petitioner reasonably expected to be provided access to documents underlying the findings of the site visit that resulted in its revocation far earlier than in its appeal before me.

Unfortunately, however, neither CMS’s delay in providing these documents or in acting to revoke Petitioner’s billing privileges affect the effective date of revocation. The regulations are clear that when a supplier is revoked for being non‑operational, the effective date of the revocation is the date that CMS determined Petitioner was no longer operational. 42 C.F.R. § 424.535(g). In this case, there is no dispute that Petitioner was non-operational as of the date of the site inspection visit, February 5, 2016. I must therefore affirm CMS’s revocation action and its effective date.

4. I need not decide whether Petitioner violated 42 C.F.R. § 424.535(a)(9).

Noridian’s initial determination also stated that Petitioner’s enrollment and billing privileges were revoked pursuant to 42 C.F.R. § 424.535(a)(9). However, because I have concluded that CMS had a legal basis to revoke Petitioner’s enrollment and billing privileges under 42 C.F.R. § 424.535(a)(5), I do not need to decide whether it had a basis to do so under 42 C.F.R. § 424.535(a)(9) as well. See 1866ICPayday.com, L.L.C., DAB No. 2289 at 13 (2009). A legal basis to revoke under 42 C.F.R. § 424.535(a)(5) is sufficient to uphold the revocation of Petitioner’s Medicare enrollment and billing privileges and the retroactive effective date of the revocation.

VI. Conclusion

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

• 1. Petitioner is free to argue this document is inaccurate, as it does in its brief, but that is an argument as to the weight I should give it, not a basis to exclude it from the record.
• 2. My numbered findings of fact and conclusions of law appear in bold and italics.
• 3. Clearly mistakenly, in fact; in the CMS-855I form used by Petitioner in 2010 to add the Santa Monica address, CMS plainly warns suppliers to provide addresses of “locations where [the supplier] renders services,” not P.O. boxes. CMS Ex. 5 at 70. Despite this warning, Petitioner supplied the address of a UPS store. The form also required suppliers to characterize the practice location by means of checking one of several options. Here, Petitioner inaccurately characterized the UPS store as a “Private practice office setting.” Id. at 71.