Sheetal Kumar, M.D., P.A., DAB CR5168 (2018)

DECISION

I grant summary judgment in favor of the Centers for Medicare & Medicaid Services (CMS) sustaining the determination to revoke the Medicare participation and billing privileges of Sheetal Kumar, M.D., P.A. for a period of three years.  Revocation is justified pursuant to 42 C.F.R. § 424.535(a)(8) (2015) because Petitioner submitted or caused to be submitted Medicare reimbursement claims that could not have been furnished on the claimed service dates.

I.  Background

CMS moved for summary judgment, filing a supporting brief (CMS’s brief) and 11 proposed exhibits that are identified as CMS Ex. 1-CMS Ex. 11.  Petitioner opposed the motion, filing a brief (Petitioner’s brief) and three proposed exhibits that are identified as P. Ex. 1-P. Ex. 3.*

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It is unnecessary that I receive these exhibits into the record inasmuch as I find no disputed material facts in this case.  I refer to some of these exhibits in this decision but only to illustrate undisputed material facts.

II.  Issue, Findings of Fact, and Conclusions of Law

A. Issue

The issue is whether the undisputed material facts establish that CMS is authorized to revoke Petitioner’s Medicare participation and billing privileges due to its having submitted or causing to be submitted Medicare reimbursement claims for items or services that could not have been provided on the claimed reimbursement dates.

B. Findings of Fact and Conclusions of Law

CMS argues that revocation of Petitioner’s Medicare participation and billing privileges is authorized by 42 C.F.R. § 424.535(a)(8).  The regulation provides in relevant part that CMS may revoke a provider or a supplier’s participation where the provider or supplier submits a claim or claims for services that could not have been furnished to a specific individual on the alleged date or dates of services.  The regulation specifically lists the circumstance where the provider or supplier is out of the country on the alleged service date as one of the events where revocation is justified.

On its face, the regulation gives CMS authority to revoke participation where there is only one instance in which a provider or supplier files even a single claim for services that it could not have provided on the alleged service date.  Mohammad Nawaz, M.D., & Mohammad Zaim, M.D., P.A., DAB No. 2687 at 2 (2016).  CMS has chosen, in its discretion, to give some leeway to providers.  The preamble to the regulation states that there should be at least three claims that could not have been provided before CMS exercises its discretion to revoke.  73 Fed. Reg. 36,448, 36,455 (June 27, 2008).

CMS contends that Petitioner, a supplier of Medicare services, submitted multiple claims for services allegedly provided on certain dates by its owner, even though she was out of the country on those dates.  It asserts that Petitioner’s owner could not have provided the services that she allegedly provided by virtue of her being out of the country on the claimed service dates.  The following undisputed facts establish grounds to revoke Petitioner’s billing privileges pursuant to 42 C.F.R. § 424.535(a)(8).

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Petitioner’s owner was out of the United States on the following dates:  July 30, 2016 through August 9, 2016, and March 13, 2017 through March 19, 2017.  CMS Ex.  7 at 2.  Petitioner filed 12 reimbursement claims for services allegedly provided to 10 Medicare beneficiaries on those dates when its owner was out of the country.  CMS Ex. 8 at 4; CMS Ex. 9 at 4.

Petitioner concedes that its owner was out of the country on the dates in question and that claims were filed on her behalf for services that she did not provide.  It argues, however, that revoking its billing privileges and imposing a three-year reenrollment bar are unreasonable.  I find Petitioner’s arguments to be without merit.

Petitioner asserts that its non-physician clinicians furnished the services that Petitioner claimed its owner provided.  Petitioner’s brief at 2-3.  It argues that these services would have been furnished in the identical manner even if Petitioner’s owner were physically present when the services were furnished.  Characterizing these services as “incident to” services, Petitioner asserts that at most, its owner failed to provide the necessary direct supervision of non-physician clinicians’ services that is required by 42 C.F.R. § 410.26(b)(5).  It contends such a failure to provide supervision would at most be a basis for CMS to claim an overpayment for the services in question but would not be grounds for revocation of its Medicare participation and billing privileges.

Petitioner’s argument is a straw man that mischaracterizes CMS’s grounds for revocation.  CMS did not revoke Petitioner’s Medicare billing privileges because Petitioner’s owner failed to provide appropriate supervision of her non-physician clinicians.  CMS revoked Petitioner’s billing privileges based on the explicit authority provided by 42 C.F.R. § 424.535(a)(8).  Petitioner’s argument says nothing that challenges CMS’s authority to revoke based on that regulation and this case’s undisputed material facts.

Petitioner also seems to argue that there is no basis for revocation of billing privileges because services were actually furnished to beneficiaries.  Petitioner’s brief at 4.  Essentially, Petitioner asserts a kind of no harm no foul argument in which it argues that the services at issue are legitimate even if they do not technically comply with Medicare reimbursement criteria.  This argument establishes no basis to challenge CMS’s revocation determination.  The regulatory authority to revoke in this case springs directly from the fact that the services could not have been provided as claimed.  It is irrelevant that the services might otherwise be legitimate services or that they are deficient only due to a lack of requisite supervision.  Louis J. Gaefke, DPM, DAB No. 2554 at 3, 6-7 (2013).

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In its hearing request, Petitioner characterized its reimbursement claims as mere clerical errors that did not typify its practice and that constituted an unrepresentative sample of the many legitimate services that it provided to Medicare beneficiaries.  Petitioner did not address that argument in its opposition to CMS’s motion for summary judgment.  However, that argument is without merit.  There is no regulatory exception for inadvertent or clerical errors once a supplier crosses the threshold of submitting three or more claims that it could not have provided.  Nothing in the regulation requires CMS to demonstrate malign intent on the part of a supplier who claims reimbursement for three or more services that it could not have provided.  Gaefke, DAB No.  2554 at 6-7.

Petitioner contends that a three-year bar on reenrollment in Medicare is unreasonable given the facts of this case.  Petitioner’s brief at 4.  I have no authority to address this argument.  The length of a bar on reenrollment is a matter of discretion for CMS.  It is not an initial determination that gives rise to hearing rights.  See 42 C.F.R. §§ 498.3(b), 498.5(e).

There is an overall equitable flavor to Petitioner’s arguments.  It asserts that I have “both the authority and discretion to independently determine whether or not billing privileges were abused.”  Petitioner’s brief at 3.  In fact, my authority is constrained by regulatory language.  Petitioner’s argument notwithstanding, I do not have the authority to decide whether Petitioner “abused” its billing privileges in some manner not directly addressed by regulatory language, nor do I have the authority to consider whether a three-year reenrollment bar is fair to Petitioner.  Furthermore, I may not decide this case based on general principles of equity.  Richard Weinberger, MD., & Barbara Vizy, M.D., DAB No. 2823 at 18 (2017).

Finally, Petitioner asserts improprieties in the procedures leading to the revocation of its Medicare billing privileges.  Petitioner’s brief at 5.  I have no authority to address this argument.  The issue that I may decide is whether CMS’s determination is supported by applicable regulatory language and undisputed facts.  As I have stated, it plainly is.

• *. In its pre-hearing exchange, Petitioner listed its sole owner as a witness, stating that she intended to testify.  However, Petitioner did not comply with my June 4, 2018 Acknowledgment and Pre-hearing Order, which directed each party to provide all direct testimony in writing as an affidavit or a declaration made under oath.