Ronald McGaugh, Jr., M.D., DAB CR5065 (2018)

DECISION

Novitas Solutions (Novitas), an administrative contractor acting on behalf of the Centers for Medicare & Medicaid Services (CMS), revoked the Medicare enrollment and billing privileges of Petitioner, Ronald McGaugh, Jr., M.D., because Petitioner failed to timely provide a Zone Program Integrity Contractor (ZPIC), Health Integrity, LLC, access to requested documentation involving 78 beneficiaries.  CMS upheld the revocation in a reconsidered determination, and Petitioner requested a hearing to dispute the revocation.  For the reasons stated herein, I affirm CMS’s determination revoking Petitioner’s Medicare enrollment and billing privileges.

I. Background

Petitioner was the medical director of Kindred House Calls (herein “Kindred”)1 from March 24, 2012 through July 31, 2016.  CMS Ex. 4 at 2; see CMS Ex. 4 at 12-19, 21-22.  In his capacity as medical director, Petitioner certified patients for home health services and “was required to supervise nurse practitioners employed by Kindred, review care

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plans implemented by nurse practitioners and ensure that Kindred’s clients were provided with necessary care.”  CMS Ex. 4 at 2. 

On February 22, 2017, ZPIC personnel conducted an on-site review at Petitioner’s medical practice.  CMS Ex. 3.  A hand-delivered letter explained the basis for the ZPIC’s visit and that the ZPIC’s representatives would be seeking documentation pertaining to selected claims Petitioner had submitted to Medicare and/or Medicaid.  CMS Ex. 3; see CMS Exs. 1 at 1; 5 at 3.  After Petitioner was unable to produce the requested records, he signed a typed statement in the presence of the ZPIC personnel in which he stated the following: “On February 22, 2017, representatives from Health Integrity and CMS requested 119 medical records for patients that I certified for home health services.  I was not able to provide these medical records as I was unaware I needed to store a copy for myself.”  CMS Ex. 2 at 3.  With respect to 15 of the beneficiaries for whom the ZPIC requested documentation, Petitioner signed another statement that same day reporting “that neither myself, [n]or anyone associated with my office, has acted as the referring or attending physician for the beneficiary(ies) . . . .”  P. Ex. 3.    

Based on Petitioner’s failure to provide the requested records to the ZPIC during the on-site review, Novitas informed Petitioner, by a letter dated March 27, 2017, that it had revoked Petitioner’s Medicare enrollment and billing privileges based on noncompliance with 42 C.F.R. § 424.535(a)(10) for failure to provide CMS with access to documentation involving 78 beneficiaries.  CMS Ex. 1 at 1; see CMS Ex. 1 at 3-6 (spreadsheet identifying records ZPIC did not receive, to include names of beneficiaries, along with other information such as dates of service (ranging between February 2015 and July 2016), Petitioner’s name and billing number (as the ordering physician), and the type of service provided).

Petitioner, who was represented by the same law firm that currently represents him in the instant case, requested reconsideration of his revocation on April 11, 2017.  CMS Ex. 4.  Although Petitioner alleged compliance with 42 C.F.R. § 424.22, a regulation that was not cited as a basis for revocation (CMS Ex. 3), Petitioner did not assert compliance with 42 C.F.R. § 424.535(a)(10).  CMS Ex. 4.  Petitioner acknowledged that “the 78 patients at issue were referred to Kindred directly from an acute care facility, and Dr. McGaugh determined that home health services were appropriate.”  CMS Ex. 4 at 2.  Petitioner further explained:

Dr. McGaugh carefully reviewed the patient’s medical record and certified that home health services were appropriate.  Dr. McGaugh reviewed the patients’ at issue medical records and care plans developed by Kindred’s nurse practitioners and ensured that all of the above criteria were met.  Specifically, Dr. McGaugh ensured, based on the medical records, that (i) the patients needed skilled nursing care; (ii) the patients were confined to the home; (iii) the patients’ care plans were

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reviewed by Dr. McGaugh; (iv) the services were provided under the care of a physician, and (v) the face to face encounter was performed timely by a nurse practitioner who worked in collaboration with Dr. McGaugh.

CMS Ex. 4 at 4.  Petitioner freely acknowledged that he was “not in possession of any records for the 78 beneficiaries at issue because he certified these patients for home health services while working as the medical director for Kindred House Calls . . . .”  CMS Ex. 4 at 2.  He further contended that “for the 78 patients at issue, he was not under any obligation to keep or prepare records, as he was not the treating physician for these patients and never saw the patients at issue.”  CMS Ex. 4 at 5.  Petitioner stressed that “[i]t is important to emphasize that Dr. McGaugh was not the treating physician for any of the 78 patients at issue, and therefore, he is not in possession of any of such patient’s medical records.”  CMS Ex. 4 at 4-5.  Petitioner also alleged that Kindred continued to use his National Provider Identifier (NPI) after his relationship with Kindred concluded.2  CMS Ex. 4 at 5.  In requesting reconsideration, Petitioner did not dispute that the ZPIC had “hand delivered” its February 22, 2017 letter to him that same day, nor did Petitioner dispute that the ZPIC requested records for 78 beneficiaries when it conducted the on-site review. 

CMS’s Provider Enrollment & Oversight Group issued a reconsidered determination on July 5, 2017, in which it determined that Novitas properly revoked Petitioner’s Medicare enrollment and billing privileges pursuant to 42 C.F.R. §§ 424.535(a)(10) and 424.516(f).  CMS Ex. 5.  CMS explained that Petitioner had conceded he did not maintain the requested documentation, stating:

Dr. McGaugh’s reconsideration request states that he is not in possession of the medical records for the 78 unique Medicare beneficiaries because he certified these patients for home health services while working as the medical director at Kindred House Calls (Kindred). Dr. McGaugh alleges that the patients at Kindred were direct referrals from acute post-care facilities, and they were not Dr. McGaugh’s patients. Dr. McGaugh claims that as the medical director of Kindred, it was his job to supervise the [nurse practitioners] employed by Kindred, and to review plans of care implemented by [nurse practitioners].  Dr. McGaugh alleges that he did not keep independent records, as the patients were not his, but Kindred’s, and instead Dr. McGaugh reviewed the plans of care to determine if the goals and treatment were appropriate. Dr. McGaugh states that he was not the treating physician of the 78 patients, instead the 78 patients were referred from

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acute-care facilities to Kindred and Dr. McGaugh determined that the home health services were appropriate. Dr. McGaugh goes on to aver that he was in complete compliance with 42 C.F.R. § 424.22, requirements for home health services.

CMS Ex. 5 at 3-4.  CMS further explained that “Dr. McGaugh was required to maintain records for home health services he certifies for seven years, and furnish those records to CMS upon request,” and that Petitioner “failed to comply with the requirements under 42 C.F.R. § 424.516(f), and therefore, the revocation of his Medicare billing privileges pursuant to 42 C.F.R. § 424.535(a)(10) was appropriate.”  CMS Ex. 5 at 4.  CMS discussed Petitioner’s arguments regarding compliance with section 424.22, and explained that section 424.22 is irrelevant to the question of whether revocation pursuant to 42 C.F.R. §§ 424.516(f) and 424.535(a)(10) was appropriate.  CMS Ex. 5 at 4.

Petitioner submitted a timely request for hearing on July 28, 2017.  In an Acknowledgment and Pre-Hearing Order (Pre-Hearing Order) dated August 8, 2017, I directed the parties to submit pre-hearing briefs addressing all issues of law and fact, along with any proposed exhibits.  Order, § 4.  Pursuant to my Pre-Hearing Order, CMS submitted a motion for summary judgment and pre-hearing brief (CMS Br.), along with five proposed exhibits (CMS Exs. 1 - 5).  Petitioner submitted a “Pre-Hearing Brief, Objections to Respondent’s Proposed Exhibits, and Response to Respondent’s Motion for Summary Judgment”3 (P. Br.) and three proposed exhibits (P. Exs. 1 - 3).  In the absence of any objections, I admit the parties’ exhibits into the record.  

Petitioner offered his own written direct testimony, which has been admitted as P. Ex. 1.   CMS has not requested an opportunity to cross-examine Petitioner, and a hearing is therefore unnecessary for the purposes of cross-examination of any witnesses.  See Pre-Hearing Order §§ 8, 9, and 10.  I consider the record in this case to be closed, and the matter is ready for a decision on the merits based on the record.4

II. Issue

The issue is whether CMS had a legitimate basis for revoking Petitioner’s Medicare enrollment and billing privileges pursuant to 42 C.F.R. § 424.535(a)(l0) because Petitioner did not timely provide the ZPIC access to requested documentation as required by 42 C.F.R. § 424.516(f).

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III. Jurisdiction

I have jurisdiction to decide this issue.  42 C.F.R. §§ 498.3(b)(17), 498.5(1)(2).

IV. Findings of Fact, Conclusions of Law, and Analysis5

The Social Security Act authorizes the Secretary of Health and Human Services (Secretary) to establish regulations governing the enrollment of providers and suppliers in the Medicare program.  42 U.S.C. § 1395cc(j)(1)(A).  The Secretary promulgated enrollment regulations in 42 C.F.R. pt. 424, subpt. P.  See 42 C.F.R. §§ 424.500-.570.  The regulations provide CMS with the authority to revoke the billing privileges of an enrolled provider or supplier if CMS determines that a provider or supplier failed to comply with a provision in 42 C.F.R. § 424.535(a).  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), 410.20(b)(1).  In order to participate in the Medicare program, a supplier must meet certain criteria to enroll and receive billing privileges.  42 C.F.R. §§ 424.505, 424.510.  CMS may revoke a supplier’s enrollment and billing privileges for any reason stated in 42 C.F.R. § 424.535(a).

1. The ZPIC conducted an on-site review in which it asked Petitioner to provide documentation supporting the medical necessity of services billed for specified dates of service.

2. Petitioner was unable to produce the documentation requested by the ZPIC because he did not maintain his own copy of those records.

The ZPIC visited Petitioner’s office to perform an on-site review, at which time it requested documentation to support the medical necessity of services that Petitioner had billed to the Medicare program.  CMS Ex. 3; see CMS Ex. 5.  At the time of the on-site visit, Petitioner informed the ZPIC’s representatives that he was unable to provide the requested records because he “was unaware [he] needed to store a copy for [him]self.”  CMS Ex. 2 at 3.  Petitioner subsequently explained, in his request for reconsideration, that he was unable to provide 78 requested records, and that “he was not under any obligation to keep or prepare records, as he was not the treating physician for these patients and never saw the patients at issue.”  CMS Ex. 4 at 5.  In his brief, Petitioner acknowledges that “he did not have physical possession of the records and that the records were situated at the Kindred facility.”  P. Br. at 6.  Petitioner contends that he had “unfettered access to the beneficiary records in question” and he “could have retrieved the records with little to no effort” from Kindred.  P. Br. at 7. 

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Petitioner did not produce 78 records requested by the ZPIC, and he has never alleged that he provided these records to the ZPIC.  To the contrary, Petitioner asserts that another entity is in possession of the records.  As such, Petitioner did not produce the documentation requested by the ZPIC.

3. CMS had a basis to revoke Petitioner’s Medicare enrollment and billing privileges pursuant to 42 C.F.R.
§§ 424.535(a)(10) and 424.516(f) because Petitioner failed to provide the documentation requested by the ZPIC.

Pursuant to 42 C.F.R. § 424.535(a)(10), CMS may revoke a provider’s or supplier’s billing privileges and any corresponding provider or supplier agreement if:

(i) The provider or supplier did not comply with the documentation or CMS access requirements specified in § 424.516(f) of this subpart.

(ii) A provider or supplier that meets the revocation criteria specified in paragraph (a)(10)(i) of this section, is subject to revocation for a period of not more than 1 year for each act of noncompliance. 

Section 424.516 provides additional provider and supplier requirements for enrolling and maintaining active enrollment status in the Medicare program.  Specifically, the regulation at section 424.516(f) provides:

(f) Maintaining and providing access to documentation. 

                                                * * *

(2)(i) A physician who orders/certifies home health services . . . is required to—

(A) Maintain documentation (as described in paragraph (f)(2)(ii) of this section) for 7 years from the date of the service; and

(B) Upon  request of CMS or a Medicare contractor, to provide access to that documentation (as described in paragraph (f)(2)(ii) of this section).

The regulation further directs that documentation that must be maintained includes “written and electronic documents . . . relating to written orders or certifications or requests for payments for  . . . home health services.”  42 C.F.R. § 424.516(f)(2)(ii).  

Petitioner has conceded that he did not maintain the requested documentation, and argues that the documentation sought by the ZPIC is accessible through Kindred.  P. Br. at 6-7.  

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I conclude that CMS had a basis to revoke Petitioner’s Medicare enrollment and billing privileges pursuant to 42 C.F.R. §§ 424.535(a)(l0) and 424.516(f) because Petitioner failed to provide the requested documentation.  Pursuant to 42 C.F.R. § 424.516(f), a party is required to provide documents “upon request.”  CMS and the ZPIC, through Novitas, were authorized to revoke Petitioner’s Medicare enrollment and billing privileges pursuant to 42 C.F.R. §§ 424.516(f) and 424.535(a)(10) due to Petitioner’s failure to provide access to documentation requested by the ZPIC.  Here, there is no dispute that Petitioner did not provide the requested documents at the time of the on-site review or anytime thereafter, and Petitioner concedes that he did not maintain the requested documents.  CMS had a legitimate basis to revoke Petitioner’s Medicare enrollment and billing privileges pursuant to 42 C.F.R. § 424.535(a)(10), and Petitioner’s allegation that CMS “abused its discretion” by revoking his enrollment is therefore without merit.  P. Br. at 7; See Letantia Bussell, M.D., DAB No. 2196 at 13 (2008) (review of CMS determination by ALJ addresses “whether CMS had the authority to revoke . . .”); Decatur Health Imaging, LLC, DAB No. 2805 at 8-9 (2017) (“The Board has held that it does not review CMS’s exercise of discretion to take other actions the regulations authorize relating to the enrollment of suppliers and providers (internal citations omitted)).6

Petitioner argues that he did not need to maintain a copy of the requested documentation because he could obtain the documentation from Kindred.  P. Br. at 6-7.  However, Petitioner was personally responsible for maintaining and producing the requested records.  42 C.F.R. § 424.516(f)(2).  As previously addressed, a physician must maintain, and retain for seven years, documentation pertaining to ordered and certified home health

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services.  Id.  In fact, in response to comments, the April 27, 2012 final rule implementing section 424.516(f)(2) specifically explained that “[t]his final rule places the responsibility for the maintenance of records on both the ordering and certifying physician and the provider and supplier.”  77 Fed. Reg. 25,284, 25,310 (April 27, 2012).  CMS further clarified, in response to a comment stating that a referral for home health care for a hospital patient or nursing home resident is typically retained in the hospital or nursing home records and not a physician’s records, that the referring physician must also maintain documentation, stating:  “The physician or other eligible professional who signed the order or certification is responsible for maintaining and disclosing the documentation.”  Id.

Petitioner also argues that the Medicare Program Integrity Manual (MPIM) supports that he did not need to personally maintain the requested documentation.  However, the MPIM clearly states:

In addition, under § 424.516(f)(2), a physician who orders/certifies home health services and the physician - or, when permitted, other eligible professional - who orders items of DMEPOS or clinical laboratory or imaging services is required to maintain the documentation described in the previous paragraph for 7 years from the date of service and to provide access to that documentation pursuant to a CMS or Medicare contractor request.

If the provider, supplier, physician or eligible professional (as applicable) fails to maintain this documentation or to furnish this documentation upon request, the contractor may revoke enrollment under § 424.535(a)(10).

MPIM, § 15.18(A) (Rev. 587, eff. July 20, 2015).  The MPIM further instructs that “[a]ll individuals and entities subject to this documentation requirement are responsible for ensuring that documents are provided upon request and may ultimately be subject to the revocation basis associated with not complying with the documentation request.”  MPIM, § 15.18(C) (Rev. 587, eff. July 20, 2015) (emphasis added).7 The Departmental Appeals Board has similarly observed that “CMS contemplated that even physicians who may not have immediate, ready access to and direct control over medical documents (as, for

• 1. Kindred operated under various names, to include Girling Healthcare, Inc., Harden Healthcare, LLC, Harden Clinical Services, LLC, MBS Integrated Care, and House Call Doctors. CMS Exhibits (Exs.) 1 at 3-6; 4 at 12-22; Petitioner (P.) Ex. 2. My reference to “Kindred” encompasses all of these entities.
• 2. Petitioner has not submitted evidence in support of this allegation. See P. Exs. 1-3.
• 3. Contrary to its title, Petitioner’s filing does not contain any objections to CMS’s proposed exhibits.
• 4. It is unnecessary in this instance to address the issue of summary judgment, as neither party has requested an in-person hearing.
• 5. My findings of fact and conclusions of law are set forth in italics and bold font.
• 6. I recognize that Petitioner has raised new and unsupported allegations for the first time. Petitioner claims that he does not recall being provided with the February 22, 2017 request letter or list of claims sought by the ZPIC (P. Ex. 1 at 2), yet he raised no such concern when he referenced the same letter in his request for reconsideration. CMS Ex. 4 at 1; see CMS Ex. 2 at 3 (signed statement by Petitioner stating the ZPIC had identified 119 claims to him when it conducted the on-site review on February 22, 2017). Along those lines, Petitioner also argues that CMS “has never provided affirmative evidence establishing . . . Petitioner was the certifying physician for the beneficiaries” in question (P. Br. at 1) and that the ZPIC and CMS did not produce “any evidence that the beneficiaries at issue were in fact beneficiaries whom Petitioner had certified for home health services.” P. Br. at 5. However, Petitioner previously conceded he certified 78 beneficiaries for home health services and that he was “not in possession of any records for the 78 beneficiaries at issue.” CMS Ex. 4 at 2. In fact, Petitioner emphasized that he could not have certified home health services for Kindred’s patients after the termination of his agreement on July 31, 2017. CMS Ex. 4 at 5 (stating “Kindred was still using Dr. McGaugh's National Provider [Identifier] . . . after Dr. McGaugh's relationship ended with Kindred . . .” ); see CMS Ex. 4 at 6-11. Petitioner’s belated new allegations lack merit and evidentiary support.
• 7. I add that, while Petitioner expressed that he feels that he could have obtained the requested documentation from Kindred, he did not do so. And, although Petitioner contends that Kindred maintains the documentation for these 78 claims, he fails to reconcile his confidence that Kindred complied with section 424.516(f)’s requirements on his behalf even though he has alleged that Kindred disregarded other Medicare requirements when it purportedly engaged in “inappropriate and potentially illegal conduct” and a “fraudulent billing scheme.” CMS Ex. 4 at 5; P. Br. at 8.
• 8. It is possible that the ZPIC conducted an on-site review as part of an investigation into whether there was a fraudulent billing scheme. See, e.g., MPIM, § 15.18(B) (stating that a request for documentation may be triggered by a Fraud Prevention System alert).