Proximal Home Healthcare, Inc., DAB CR5625 (2020)

DECISION

I find that the Centers for Medicare & Medicaid Services (CMS) failed to establish a prima facie case that Petitioner, Proximal Home Healthcare, Inc., violated the requirements of 42 C.F.R. § 424.535(a)(8)(ii).  Specifically, CMS failed to offer credible evidence that Petitioner engaged in a pattern of improper billing for Medicare services.  For this reason, I find that CMS is without authority to revoke Petitioner’s Medicare billing privileges.

I. Background

This case was transferred to me from another Administrative Law Judge.  Upon reviewing the case, I learned that the file contained a fully briefed motion for summary judgment as well as complete pre-hearing exchanges from each party.

CMS offered five exhibits, identified as CMS Ex. 1-CMS Ex. 5.  It did not offer the written direct testimony of a witness.  Petitioner, in response to CMS’s motion for

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summary judgment, alludes to documents that it claims that it filed.  However, there are no exhibits from Petitioner in the record.  In recent weeks Petitioner also filed additional documents, not identified as exhibits, which it urges me to consider.  It did not offer the written direct testimony of a witness.

As I shall explain, there plainly are disputed material facts in this case.  However, I need not address these disputed facts through the lens of a ruling on a motion for summary judgment.  I find it appropriate to decide this case based on the parties’ written pre-hearing exchanges inasmuch as neither party produced the written direct testimony of a witness made under oath or affirmation.  A hearing would be pointless inasmuch as there is no testimony that could be tested on the record.

I receive CMS Exs. 1-5 into evidence although, as I shall discuss, these exhibits are insufficient to establish a prima facie case of Petitioner’s noncompliance.  I do not receive Petitioner’s recently filed unidentified documents into evidence inasmuch as Petitioner did not file them timely.

II. Issue, Findings of Fact and Conclusions of Law

A. Issue

The issue is whether CMS may revoke Petitioner’s Medicare billing privileges.

B. Findings of Fact and Conclusions of Law

Petitioner is a home health care agency.  A home health agency may not claim reimbursement from Medicare for services provided to a Medicare beneficiary unless that beneficiary’s treating physician certifies that the resident is in need of such services.  42 C.F.R. § 424.22(a)(2).  “The certifying physician plays the role of gatekeeper in ascertaining whether a patient is homebound and qualifies for home health services; Medicare relies on the independent and honest professional judgment of the certifying physician for that purpose.”  United States v. DeHaan, 896 F.3d 798, 807 (7th Cir. 2018).

CMS may revoke a home health agency’s Medicare billing privileges where the provider demonstrates a “pattern or practice of submitting claims that fail to meet Medicare requirements.”  42 C.F.R. § 424.535(a)(8)(ii).  In this case CMS contends that Petitioner violated this regulation in that, during a period that extended from September 1, 2015 through December 18, 2015, it allegedly filed reimbursement claims for seven Medicare beneficiaries that failed to meet Medicare reimbursement requirements.1   Specifically,

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CMS asserts that none of these beneficiaries were being treated by the physician who purportedly certified them as eligible for home health care services.  This, according to CMS, is more than ample basis for proving that Petitioner engaged in a pattern or practice of submitting claims that failed to meet Medicare reimbursement requirements.2

CMS’s entire case rests on two exhibits.  One of these includes a statement purportedly signed by a physician, Dr. Jayaprakash Narayana.  CMS Ex. 2.  The person signing this statement, allegedly Dr. Narayana, asserts that neither Dr. Narayana nor anyone else associated with his office acted as the referring or attending physician for the seven Medicare beneficiaries whose names are listed on the statement.  Id.

The other exhibit, CMS Ex. 3, consists of apparent records pertaining to the same seven beneficiaries whose names are listed in CMS Ex. 2.  These records include reports of face-to-face encounters and certifications for home health care.  With one exception, each of these records bears the signature of someone purporting to be Dr. Narayana, or, in the certifications, what looks like a stamped signature purporting to be that of Dr. Narayana.3   CMS Ex. 3 at 1-18, 21-23.

I find these exhibits to be without probative value.

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Dr. Narayana’s statement is clearly testimony, but it is unsworn.  CMS Ex. 2.  CMS did not list him as a witness, nor did it offer written direct testimony by Dr. Narayana.4   I find that it has no probative value because it is unsworn.  From the face of the exhibit it is impossible to say even if Dr. Narayana actually reviewed it and signed it.  It bears a signature and initials purporting to be those of Dr. Narayana, but there is no way to establish that they are what they purport to be.  Also, it is impossible to determine how Dr. Narayana – if he actually signed the exhibit – reached the conclusion that he did not act as the referring or attending physician for the seven listed beneficiaries.  Did he make his assertion based on his memory?  Did he review his office’s patient records?5   Did he consult with a third party?  Or, was he just guessing?  It is impossible to say.  Indeed, it is impossible to say whether or not the person who signed the exhibit offered honest conclusions.

CMS might argue that Petitioner could have subpoenaed Dr. Narayana and confronted him about the statements in CMS Ex. 2.  However, it is not Petitioner’s burden to refute something that is inherently not probative.

I find that CMS Ex. 3 offers no corroboration for the statements in CMS Ex. 2.  To the contrary, it appears to refute them to some extent.  The exhibit contains reports of face-to-face encounters, purportedly between Dr. Narayana and each of the seven Medicare beneficiaries whose services are at issue.  CMS Ex. 3 at 1-2, 7, 8-9, 15, 18, 21.  On their faces, these documents appear to refute the assertion in CMS Ex. 2 that Dr. Narayana did not act as the referring or attending physician for any of the seven beneficiaries.  Furthermore, although I claim no expertise in handwriting analysis, the signatures at the bottom of these documents appear to my eye to be identical to the purported signature of

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Dr. Narayana on CMS Ex. 2.  That suggests that either Dr. Narayana signed all of these documents or that he signed none of them.  It is impossible to ascertain which is the case from the faces of CMS Ex. 2 and CMS Ex. 3.

CMS Ex. 3 also contains home health certifications and plans of care for some of the seven beneficiaries.  CMS Ex. 3 at 3-6, 10-13, 14, 16-17, 22-23.  These documents appear to have been stamped with Dr. Narayana’s name.  The stamped signature closely resembles the handwritten signatures on CMS Ex. 2 and on the previously discussed pages in CMS Ex. 3.6   It is impossible to say whether Dr. Narayana actually approved the certifications or whether someone else stamped his signature on them.  The certifications, however, do not bolster CMS’s argument that Dr. Narayana did not provide care to the seven beneficiaries.  To the contrary, they provide some evidence, albeit extremely slender, that he did provide such care.

It is unnecessary that I address the issue of whether the alleged failure of Dr. Narayana to provide care to any or all of the seven beneficiaries, if supported by probative evidence,  would be sufficient to establish a pattern or practice of non-reimbursable claims as is described at 42 C.F.R. § 424.535(a)(8)(ii).  Suffice it to say that I do not find sufficient probative evidence to establish a prima facie case that Dr. Narayana failed to provide care for or treat these beneficiaries.

• 1. CMS erroneously states in its reconsidered determination that the claims were submitted between April 20, 2015 and July 2, 2015. CMS Ex. 1 at 6. The evidence, however, shows claim submission dates between September 1, 2015 and December 18, 2015.  CMS Ex. 2 at 2.  The dates of service underlying those claims were between April 20, 2015 and July 2, 2015, however.
• 2. CMS asserts that it revoked Petitioner’s Medicare billing privileges for reasons that included but that were not limited to failure to provide valid certifications of eligibility and proof of face-to-face encounters between the seven beneficiaries’ treating physician and the beneficiaries.  CMS’s motion for summary judgment and pre-hearing brief at 1.  However, it offered no argument addressing other reasons for revoking Petitioner’s billing privileges beyond its assertion that Dr. Narayana did not serve as the treating or referring physician for any of the seven beneficiaries whose care is at issue.  CMS has foreclosed the opportunity to address any asserted other reasons by virtue of its not having raised them in its brief.
• 3. The exhibit demonstrates, for one beneficiary, that Dr. Narayana did not certify the beneficiary for home health services.  For that beneficiary, Dr. Hector Molina’s name and apparent signature appear at the bottom of the certification forms, though Dr. Molina’s last name is somewhat obscured at CMS Ex. 3 at 19.  See CMS Ex. 5 at 5 (identifying Dr. Hector Molina as having signed plans of care for some of the patients at issue).  To the extent that Petitioner submitted a claim on December 1, 2015, identifying Dr. Narayana as the ordering physician for the patient identified in CMS Ex. 3 at 19-20, that claim appears to have been in error.  CMS Ex. 2 at 2; CMS Ex. 3 at 19-20.  However, a single claim cannot establish a pattern or practice, and it does not change the outcome here.
• 4. The initial pre-hearing order explicitly requires the parties to reduce any witness’ testimony to writing and offer it either as an affidavit or as a sworn declaration. Acknowledgment and Pre-Hearing Order, ¶ 8.
• 5. CMS’s reconsidered determination stated that Dr. Narayana reviewed patient medical records, but neither the hearing officer nor CMS counsel provided support for that statement.  CMS Ex. 1 at 4.  If the hearing officer was privy to other documents for her knowledge of what Dr. Narayana reviewed, CMS did not submit those to me.  It is unclear how the hearing officer knew that Dr. Narayana reviewed any medical records.  In its brief, CMS asserts that Dr. Narayana “reviewed the medical records of the seven Medicare beneficiaries,” but the only evidence CMS cited in support of that statement, CMS Exs. 2 and 3, does not establish that he did so.  CMS’s motion for summary judgment and pre-hearing brief at 2.  CMS Ex. 2 is Dr. Narayana’s statement, and even if I found it reliable, which I do not, it says nothing about his having reviewed medical records.  CMS Ex. 3 is a collection of medical records which also do not establish this fact.
• 6. CMS did not contend that a signature stamp contravened the requirement that a physician sign the certification form.  See 42 C.F.R. § 424.22(a)(2).