ORA Orthopedics PC, DAB CR5104 (2018)

DECISION

I grant summary judgment in favor of the Centers for Medicare & Medicaid Services (CMS) and against Petitioner, ORA Orthopedics PC, sustaining the determination of a Medicare contractor, as affirmed on reconsideration, to revoke Petitioner’s Medicare billing privileges.

I.  Background

CMS moved for summary judgment and Petitioner opposed the motion.  With its motion CMS filed five proposed exhibits that it identified as CMS Ex. 1-CMS Ex. 5.  Petitioner, in opposing the motion, filed five exhibits that it identified as P. Ex. 1-P. Ex. 5.  Petitioner also asserted that it wished to call a witness and offered that individual’s written direct testimony in Exhibit 5.

It is unnecessary that I admit either party’s exhibits into evidence inasmuch as I grant summary judgment based on the undisputed material facts.  I cite to some of the exhibits but only to illustrate facts that are not in dispute.

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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 supplier of durable medical equipment.  In order to remain enrolled as a participant in the Medicare program it must comply with applicable regulations and in particular the standards set forth at 42 C.F.R. § 424.57(c).  CMS or one of its contractors may revoke a durable medical equipment supplier’s Medicare billing privileges if it fails to comply with the regulatory standards.  42 C.F.R. §§ 424.57(e)(1); 424.535(a).

CMS alleges that Petitioner failed to comply with the standard set forth at 42 C.F.R. § 424.57(c)(7).  This standard requires a durable medical equipment supplier to, among other things, be appropriately staffed at a designated site during posted hours of operation.

I find the following facts to be undisputed.  Petitioner filed an application for revalidation of its Medicare billing privileges.  In its application, Petitioner stated that its operating hours were 8:00 a.m. to 5:00 p.m. Monday through Friday.  CMS Ex. 1 at 3.  On Thursday, July 20, 2017, an inspector visited Petitioner’s business location in order to determine whether Petitioner was operating in compliance with regulatory requirements.  The business was closed.  CMS Ex. 2 at 1. The inspector observed a sign at the site that posted Petitioner’s hours of operation as: 8:00 a.m. to 5:00 p.m. Monday through Wednesday and 8:00 a.m. to 5:00 p.m. Friday, with the business being closed on Thursday.  Id. at 2.  The inspector returned on the following Wednesday1 but found the business to be closed notwithstanding Petitioner’s posted hours of operation stating that the business would be open from 8:00 a.m. to 5:00 p.m. on Wednesday.  Id. at 1.

These facts are sufficient grounds for the contractor and CMS to revoke Petitioner’s Medicare billing privileges.  The regulation’s requirements are plain.  A durable medical equipment supplier must be sufficiently staffed to be open during its posted business

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hours.  42 C.F.R. § 424.57(c)(7).  Here, Petitioner represented that it would be open on Wednesdays from 8:00 a.m. to 5:00 p.m.  It was not.2

Petitioner argues that it complied with its posted hours because, it asserts, there was also a sign on Petitioner’s business location door stating that its hours of operation might vary depending on the schedule of the physicians who are Petitioner’s owners and operators.  It asserts that on the Wednesday when the inspector found the business to be closed no physicians were present because upgrades were being made to their office equipment.

I accept as true all of Petitioner’s assertions of fact for purposes of deciding CMS’s motion.  These assertions, however, do not prove that Petitioner complied with the regulatory requirements.  The standard at 42 C.F.R. § 424.57(c)(7) is plain.  A durable medical equipment supplier must post its hours of operation and it must be sufficiently staffed and open during those hours.  The regulation does not give a supplier leeway to vary its actual hours of operation from its posted hours.  Petitioner may not excuse its failure to be open during posted hours on the basis of a sign that effectively warned its customers that it might or might not be open during posted hours depending on physicians’ schedules.

The regulatory requirements of sufficient staffing to maintain adherence to posted hours of operation would become meaningless if I accepted Petitioner’s argument.  Any supplier of durable medical equipment could be open and shut as it pleased – irrespective of its posted hours – if it were allowed to close when staff or its proprietors were unavailable.

• 1. There is a conflict in the facts offered by CMS.  CMS avers that the second visit to Petitioner's facility occurred on a Wednesday.  However, the documentary record of the visit shows that the second visit occurred on Tuesday, July 25, 2017.  For purposes of the decision I am using "Wednesday" as the day of the second visit.  That doesn't affect the outcome of this case because Petitioner represented that its facility was open on both Tuesdays and Wednesdays and it does not deny that the facility was closed on the day of the second visit, whether that day was a Tuesday or a Wednesday.
• 2. I do not address the issue of whether Petitioner’s posted hours for regulatory compliance purposes were Monday through Friday 8:00 a.m. to 5:00 p.m., as stated in its revalidation application, or Monday through Wednesday, and Friday, 8:00 a.m. to 5:00 p.m. as stated in the sign on Petitioner’s business location door.  It is sufficient to conclude that Petitioner failed to be open during the hours posted on its sign.