Sandra Jackson, CRNP, DAB CR6122 (2022)

DECISION

Petitioner, Sandra Jackson, is a nurse practitioner, who, until September 18 and 19, 2020, was enrolled in the Medicare program as a supplier of services, practicing in the states of Pennsylvania and Delaware.  Because she was unable to produce patient medical records that a Medicare program integrity contractor requested, the Centers for Medicare & Medicaid Services (CMS) revoked her Medicare billing privileges pursuant to 42 C.F.R. § 424.535(a)(10) and imposed a ten-year reenrollment bar.

Petitioner now appeals.

I affirm CMS’s determination.  I find that CMS is authorized to revoke Petitioner’s Medicare privileges because she ordered durable medical equipment for patients but did not maintain medical records for those patients and could not supply those records when the program integrity contractor requested them.  I have no authority to review the length of the reenrollment bar.

Background

In letters dated August 19 and 20, 2020, the Medicare contractor, Novitas Solutions, advised Petitioner that her Medicare privileges were revoked, effective September 18,

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2020 (Pennsylvania enrollment) and September 19, 2020 (Delaware enrollment).  The letters explained that the contractor revoked Petitioner’s Medicare privileges pursuant to 42 C.F.R. § 424.535(a)(10), because, when asked to do so, she did not provide, to SafeGuard Services, LLC, the program integrity contractor, medical records for 15 Medicare beneficiaries for whom she had ordered DMEPOS (durable medical equipment, prosthetics, orthotics, and supplies).  Failing to provide access to the requested documentation violates 42 C.F.R. § 424.516(f).  CMS Ex. 6 at 1; CMS Ex. 7 at 1.  The contractor imposed a ten-year reenrollment bar, pursuant to 42 C.F.R. § 424.535(c).  CMS Ex. 6 at 3; CMS Ex. 7 at 3.

Petitioner requested reconsideration.  CMS Ex. 3.  In reconsidered determinations, dated October 5 and 9, 2020, a CMS hearing officer upheld the revocation.  CMS Exs. 1, 2.

Petitioner timely appealed.

Decision based on the written record.  CMS moves for summary judgment, which Petitioner opposes.  However, this matter may be decided based on the written record, without considering whether the standards for summary judgment have been met.  CMS proposes no witnesses.  Petitioner proposes one witness (herself) and, in accordance with my pre-hearing order, has submitted her written declaration (P. Ex. 1).  See Acknowledgment and Pre-hearing Order at 4, 5, 6 (¶¶ 4(c)(iv), 8, 9, 10) (December 11, 2020).  The order directed CMS to indicate, affirmatively, that it wanted to cross-examine a witness.  CMS has not done so.  Id at 5, 6 (¶¶ 9, 10).  Because there are no witnesses to be examined further or cross-examined, an in-person hearing would serve no purpose, and I may decide this case based on the written record.¹

Exhibits.  CMS submits its motion for summary judgment and brief (CMS Br.) with seven exhibits (CMS Exs. 1-7).  Petitioner submits her brief and opposition to summary judgment (P. Br.) with two exhibits (P. Exs. 1-2).

In the absence of any objections, I admit into evidence CMS Exs. 1-7 and P. Exs. 1-2.

Discussion

The Medicare Program.  The Medicare program, Title XVIII of the Social Security Act (Act), is a federally-subsidized insurance program that provides health care benefits to

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the elderly, disabled, and those suffering from end stage renal disease.  Medicare is divided into four parts:

• Part A is the hospital insurance program.  It covers hospital services, post-hospital extended care, home health, and hospice care.  Act § 1811 (42 U.S.C. § 1395c);
• Part B, which is voluntary, is the supplementary medical insurance program, covering physician, home health, hospice, and other services.  Act § 1832 (42 U.S.C. § 1395k);
• Part C is the Medicare Advantage program, which allows its participants to enroll in “Medicare + Choice” plans, managed by organizations, such as health maintenance organizations, that receive a fixed payment for each enrollee.  Act § 1851 (42 U.S.C. § 1395w-21); and
• Part D is the voluntary prescription drug benefit program.  Act § 1860D (42 U.S.C. § 1395w-101).

The Medicare program is administered by CMS, acting on behalf of the Secretary of Health and Human Services.  CMS regulates the Medicare enrollment of providers and suppliers.  Act § 1866(j)(1)(A) (42 U.S.C. § 1395cc(j)(1)(A)).  Physicians and other practitioners (such as Petitioner) may participate in the program as “suppliers” of services.  Act §§ 1861(d), (s)(2)(H),(K) (42 U.S.C. §§ 1395x(d), (s)(2)(H), (K)); 42 C.F.R. § 400.202.

CMS contracts with Medicare administrative contractors, who process and pay reimbursement claims and perform other duties necessary to carry out program purposes.  Act § 1842 (42 U.S.C. § 1395u).  Contractors pay claims to “providers” (Part A) and “suppliers” (Part B).

1. CMS may revoke Petitioner Jackson’s Medicare enrollment, pursuant to 42 C.F.R. § 424.535(a)(10), because she ordered DMEPOS items for Medicare beneficiaries but did not maintain documentation relating to those orders and, when the Medicare program integrity contractor asked her to provide that documentation, she would not or could not produce it, which violates 42 C.F.R. § 424.516(f).²

Revocation of enrollment.  The Medicare statute authorizes the Secretary of Health and Human Services to revoke a supplier’s Medicare enrollment (for a period of not more than

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one year for each act) if the supplier does not maintain, and, upon request, provide access to documentation relating to written orders or requests for payment for durable medical equipment or other items or services written or ordered by the supplier.  Act § 1842(h)(9).  Implementing the statutory provisions, CMS’s regulations provide that CMS, acting on behalf of the Secretary, may revoke a supplier’s Medicare enrollment if she doesn’t comply with the documentation or access requirements of 42 C.F.R. § 424.516(f).  42 C.F.R. § 424.535(a)(10).

Section 424.516(f)(2)(i) provides that a physician or an “eligible professional” who orders DMEPOS items must maintain documentation of the transactions for seven years.  “Documentation” includes written and electronic documents, including the NPI (national provider identifier) of the physician or eligible professional, relating to written orders and certifications and requests for payment for items of DMEPOS.  42 C.F.R. § 424.516(f)((1)(ii).

Program integrity contractors were established to help safeguard the Medicare program, and SafeGuard Services, LLC, is the “Northeastern Unified Program Integrity Contractor.”  Among its responsibilities, it reviews Medicare claims to ensure that services have been billed appropriately and are adequately justified.  CMS Ex. 4 at 8; CMS Ex. 5 at 8.

Petitioner’s noncompliance with the documentation and access requirements of section 424.516(f).  Petitioner is a nurse practitioner, who was licensed and practicing in Pennsylvania and Delaware.  P. Ex. 1 at 1 (Jackson Decl. ¶¶ 3, 4).  She currently resides in Florida.  P. Ex. 1 at 1 (Jackson Decl. ¶ 4).

In letters dated January 23, 2020, SafeGuard advised Petitioner that it was reviewing certain claims submitted to Medicare for durable medical equipment supplies for which she was listed as the referring “physician.”³  The letters then listed 15 Medicare beneficiaries, with identifying information, and asked Petitioner to produce their medical records within 45 days of the letters’ postmark dates.  The letters warned that failing to comply with the requests could result in Petitioner’s exclusion from participation in the Medicare program.  CMS Ex. 4 at 7-12, 15; CMS Ex. 5 at 7-12.

Receiving no response, on July 15, 2020, SafeGuard sent follow-up letters, advising Petitioner that it had not received a response to its January 23, 2020 request for medical documentation.  The letters warned that, if it did not receive the medical records within 15 days from the date of the letter, “administrative action, including revocation, may be taken.”  CMS Ex. 4 at 16, 19, 21; CMS Ex. 5 at 16, 19, 21.

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SafeGuard sent all of these letters to the correspondence addresses on file for Petitioner, although it appears that she did not receive them.  Unaware of the proper procedure for updating her correspondence address in the CMS database, she had moved to Florida without doing so.  P. Ex. 1 at 1, 2 (Jackson Decl. ¶¶ 6, 7, 11, 13).

Much of Petitioner’s argument focuses on her good-faith, but unsuccessful, efforts to update her correspondence address, which she claims resulted in her not receiving SafeGuard’s notices until after CMS had excluded her.  Ultimately, however, this is not the dispositive issue here.  The dispositive issue is whether she complied with the documentation and access requirements of section 424.516(f).

On September 3, 2020, Petitioner learned of the revocation and subsequently contacted the SafeGuard representative, who sent her the original document requests.  P. Ex. 1 at 2, 3 (Jackson Decl. ¶¶ 9, 15, 16).  Initially, Petitioner did not remember ordering DMEPOS for any patients and told the representative that she had never worked for a telehealth entity or performed telehealth services.  P. Ex. 1 at 2 (Jackson Decl. ¶ 10); P. Ex. 2 at 2.  However, when she received the record requests, she remembered that she had worked for a telehealth company “for a few weeks.”  P. Ex. 1 at 2 (Jackson Decl. ¶ 17).  In fact, based on CMS’s billing records, she provided those services over a period of five months in 2018.  CMS Ex. 4 at 15; CMS Ex. 5 at 15.

Petitioner had not maintained the requested records and was unable to produce them.  P. Ex. 1 at 3 (Jackson Decl. ¶¶ 15, 16, 17, 18); see P. Ex. 2.  CMS is therefore authorized to revoke her Medicare enrollment.  Act § 1842(h)(9)); 42 C.F.R. § 424.535(a)(10); George M. Young, M.D., DAB No. 2750 at 8 (2016).

Petitioner nevertheless maintains that she adequately “responded” to SafeGuard’s request for medical records.  She does not claim that she maintained or provided the records, but she advised SafeGuard that she had worked for the company that provided telehealth services, and she claimed that the “medical staff involved in the patients’ care had provided complete documentation in support of their orders.”  She gave SafeGuard the name of “the entity who I believed to have access to the requested information.”  P. Ex. 1 at 3 (Jackson Decl. ¶¶ 17, 18).

Suggesting a possible avenue for obtaining the requested records is not sufficient to satisfy section 424.516(f).  The “eligible professional who signed the order or certification is responsible for maintaining and disclosing the documentation.”  Young, DAB No. 2750 at 10 (quoting 77 Fed. Reg. 25,284, 25,310 (Apr. 27, 2012)).  Even practitioners “who may not have immediate, ready access to and direct control over medical documents . . . would be expected to adhere to the record retention and disclosure requirements.”  Id.

Petitioner also suggests that “no record evidence” supports the finding that the records requested correspond to any of Petitioner’s patients.  P. Br. at 8.  This is not so.  CMS has

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produced billing records that list the patient names, dates of birth, and Medicare beneficiary numbers, along with the dates of service, the ordering provider’s name and NPI – which are Petitioner’s name and NPI.  CMS Ex. 4 at 15; CMS Ex. 5 at 15.  Petitioner has not claimed that an entity appropriated her name and NPI without her knowledge or consent.

The Departmental Appeals Board has consistently held that an administrative law judge’s review of CMS’s determination to revoke a supplier’s Medicare enrollment is limited to deciding whether CMS has established one or more of the grounds specified in section 424.535(a).  William Garner, M.D., DAB No. 3026 at 16 (2020); Norman Johnson, M.D., DAB No. 2779 at 11 (2017), and cases cited therein.  Although CMS itself has the discretion to consider “unique or mitigating circumstances in deciding whether, or how, to exercise its revocation authority,” I do not.  I may not substitute my discretion for that of CMS in determining whether the revocation is appropriate.  Johnson at 11 (citing Care Pro Home Health, Inc., DAB No. 2723 at 9 n.8 (2016); Abdul Razzaque Ahmed, M.D., DAB No. 2261 at 19 (2009), aff’d, Ahmed v. Sebelius, 710 F. Supp.2d 167 (D. Mass. 2010)).

Here, CMS plainly had the authority to revoke Petitioner’s Medicare enrollment under section 424.535(a)(10).  Petitioner ordered DMEPOS supplies for Medicare beneficiaries – her name and NPI are on each of the billing entries – but she did not maintain patient records and, when asked to do so, could not produce them.  I must therefore affirm the revocation.

I have no authority to review Petitioner’s Constitutional claims.  Blair Allen Nelson, M.D., DAB No. 3024 at 9-10 (2020).

2. I have no authority to review CMS’s determination to impose a ten-year reenrollment bar.

When a supplier’s billing privileges are revoked, she may not participate in the Medicare program until the end of her reenrollment bar, which must be for a minimum of one year but no more than ten years (except under circumstances that don’t apply here), depending on the severity of the underlying offense.  42 C.F.R. § 424.535(c)(1).  Here, CMS imposed a ten-year reenrollment bar.  Petitioner argues that the ten-year reenrollment bar violates the regulation, which authorizes “revocation for a period of not more than 1 year for each act of noncompliance.”  42 C.F.R. § 424.535(a)(10)(ii).  In Petitioner’s view, she committed, at most, one act of noncompliance.  In fact, CMS has cited 15 such acts.  Failing to produce any requested document violates section 424.416(f), and here Petitioner failed to do so 15 times.  See Young, DAB No. 2750 at 9 (suggesting that failing to produce any requested document violates section 424.516(f)).

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In any event, I have no authority to review the length of the reenrollment bar.  Vijendra Dave, M.D., DAB No. 2672 at 9-12 (2016); accord,  Garner, DAB No. 3026 at 16; Lilia Gorovits, M.D., P.C., DAB No. 2985 at 15-16 (2020); see 42 C.F.R. § 498.3(b)(17).

Conclusion

CMS has established grounds for revoking Petitioner Jackson’s Medicare enrollment under section 424.535(a)(10):  she did not comply with the documentation or access requirements of section 424.516(f).  I have no authority to review the reenrollment bar imposed.

I therefore affirm CMS’s determination.

Endnotes

¹  That I decide this case based on the written record does not mean that Petitioner has not had a hearing.  Courts recognize that, although a case may be decided on summary judgment or based on the written record, the administrative law judge, by considering the evidence and applying the law, has granted the petitioner a hearing.  See CNG Transmission Corp. v. FERC, 40 F.3d 1289, 1293 (D.C. Cir. 1994) (holding that a “paper hearing” satisfies statutory requirements for “notice and opportunity for hearing.”).

²  My findings of fact/conclusions of law are set forth, in italics and bold, in the discussion captions of this decision.

³  The “dates of service” for these claims were from November 6, 2018, through April 8, 2019, well within the seven-year period for which records must be maintained.  CMS Ex. 4 at 15; CMS Ex. 5 at 15.