Emilio Francisco Montero, M.D.,P.A., DAB CR5553 (2020)

DECISION

Petitioner, Emilio Francisco Montero, M.D., P.A., is a psychiatrist, practicing in Florida, who, until recently, participated in the Medicare program.  The Centers for Medicare & Medicaid Services (CMS) has revoked his billing privileges, citing abusive billing practices; specifically, CMS charges that he billed for services to Medicare beneficiaries who were dead at the time those services were ostensibly provided.  

Petitioner appeals.  CMS has moved for summary judgment.  I agree that this case presents no genuine issue of material fact and that CMS is entitled to judgment as a matter of law.  The undisputed evidence establishes that Petitioner Montero repeatedly billed the Medicare program for services he could not have provided because the beneficiaries to whom the services were purportedly provided were no longer living.  CMS therefore properly revoked his billing privileges.

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Background

By letter dated October 11, 2016, CMS advised Petitioner that his Medicare billing privileges were revoked effective November 10, 2016, because he billed for services purportedly provided to 15 Medicare beneficiaries between March 3, 2014, and March 14, 2016, but those beneficiaries were deceased on the dates of service.  In doing so, Petitioner violated 42 C.F.R. § 424.535(a)(8)(i).  CMS Ex. 1.  Attached to the notice was a list of the 15 Medicare beneficiaries whom CMS identified as deceased on the dates of service, along with the billed dates of service and the dates of the beneficiaries’ deaths.  CMS Ex. 1 at 3-4.  Pursuant to 42 C.F.R. § 424.535(c), the contractor also imposed a three-year re-enrollment bar.  CMS Ex. 1 at 2.

Petitioner requested reconsideration.  CMS Ex. 2.  In a reconsidered determination, dated March 13, 2017, the CMS hearing officer found that Petitioner had submitted claims for 15 beneficiaries who were dead on the purported dates of service, and she upheld the revocation.  CMS Ex. 3.

Petitioner appealed, and CMS has moved for summary judgment. 

With its memorandum in support of summary judgment (CMS Br.), CMS submits seven exhibits (CMS Exs. 1-7).  Petitioner submits a response to CMS’s motion (P. Br.), accompanied by five exhibits (P. Exs. 1-5).

Discussion

The parties agree that Petitioner billed the Medicare program for services that he could not have provided because the beneficiaries to whom the services were purportedly provided were no longer living.  CMS therefore properly revoked Petitioner’s Medicare enrollment pursuant to 42 C.F.R. § 424.535(a)(8).1

Program rules. CMS regulates the Medicare enrollment of providers and suppliers.  Social Security Act (Act) § 1866(j)(1)(A).  It may revoke a supplier’s billing privileges if he abuses them by submitting a claim or claims for services that he could not have furnished to a specific individual on the date of service, such as “where the beneficiary is deceased.”  42 C.F.R. § 424.535(a)(8)(i)(A).  If a supplier’s billing privileges have been

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revoked, CMS must bar his re-enrollment for at least one year, but for no more than three years, depending on the severity of the basis for revocation.  42 C.F.R. § 424.535(c)(1).2

Summary judgment. The Departmental Appeals Board has, on multiple occasions, discussed the well-settled principles governing summary judgment.  See, e.g., 1866ICPayday.com, L.L.C., DAB No. 2289 at 2-3 (2009).  Summary judgment is appropriate if a case presents no genuine issue of material fact, and the moving party is entitled to judgment as a matter of law.  Donald W. Hayes, D.P.M., DAB No. 2862 at 7-8 (2018); 1866ICPayday, DAB No. 2289 at 2; Illinois Knights Templar Home, DAB No. 2274 at 3-4 (2009), and cases cited therein.  Here, Petitioner concedes that his employee billed the Medicare program for services that he could not have provided (and did not provide) because the beneficiaries identified in the billings were dead.  Because these dispositive facts are not in dispute, CMS is entitled to summary judgment.  See Zille Shah, M.D. and Zille Huma Zaim, M.D., PA, DAB No. 2688 at 5-6 (2016); Mohammad Nawaz, M.D., and Mohammad Zaim, M.D., PA, DAB No. 2687 at 5 (2016).

The erroneous billing. Petitioner Montero is a psychiatrist with a practice in Florida. The parties agree that, between March 3, 2014, and March 14, 2016, he – or his employee, on his behalf – submitted 32 Medicare claims for services ostensibly provided to 15 beneficiaries.  However, he could not have provided the services because the beneficiaries were dead on the billed dates of service.  CMS Ex. 1 at 3-4; CMS Exs. 4-7; P. Br. at 2 (“[T]he prohibited billings that were the cause of the Medicare revocation were made by his longtime employee”); P. Ex. 3 at 1 (Montero Decl. ¶ 4) (“After March 2016, I discovered that Mrs. Hendrix had improperly billed Medicare for a few patients.  At the time, I believed that such improper billing was careless and a mistake”).    

Thirty-two erroneous claims justify revoking a supplier’s Medicare enrollment.  Indeed, the plain language of the regulation authorizes CMS to revoke billing privileges based on a single claim.  42 C.F.R. § 424.535(a)(8)(i) (authorizing revocation if the supplier submits “a claim or claims for services that could not have been furnished . . .”).  CMS, however, has indicated that it will not revoke billing privileges unless its finds at least three instances of abusive billing practices.  73 Fed. Reg. 36,448, 36,455 (June 27, 2008); see John M. Shimko, D.P.M., DAB No. 2689 (2016) (upholding a revocation based on 19 claims for services associated with 12 beneficiaries on 18 dates of service and concluding that nothing in the language of the regulation or its preamble suggests that CMS must find a minimum claims error rate before revoking billing privileges under section 424.535(a)(8)).

Petitioner blames his employee, whom he fired in October 2016.  Initially, he asserted that, without his knowledge, she “became quite careless and mistaken in her billings on a few occasions.”  P. Ex. 1 at 2.  He now maintains that she was also stealing from his

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medical practice, and her improper billing may have been purposeful (although he concedes that he does not know why she would have intentionally submitted false claims).  P. Ex. 3 at 1 (Montero Decl. ¶¶ 4, 6, 7).  Purposeful or inadvertent, a physician is responsible for claims submitted on his behalf or at his direction.  His efforts to assign blame elsewhere “do not relieve him of his responsibility for the improper claims or bar CMS from revoking his billing privileges.”  Howard B. Reife, D.P.M., DAB No. 2527 at 8 (2013).

Conclusion

The undisputed evidence establishes that Petitioner Montero, or his employee on his behalf, repeatedly billed the Medicare program for services that he could not have provided because the beneficiaries were dead on the purported dates of service.  CMS therefore properly revoked his billing privileges and is entitled to summary judgment.

• 1. I make this one finding of fact/conclusion of law.
• 2. I cite to the regulation in effect on the date of the initial determination.