Mohsen T. Moghaddam, MD, DAB CR5807 (2021)

DECISION

Noridian Healthcare Solutions (Noridian), an administrative contractor acting on behalf of the Centers for Medicare & Medicaid Services (CMS), revoked the Medicare enrollment and billing privileges of Petitioner, Mohsen T. Moghaddam, MD, pursuant to 42 C.F.R. § 424.535(a)(8)(ii) because Petitioner submitted claims that failed to meet Medicare requirements.  Noridian also added Petitioner to CMS's preclusion list.  CMS subsequently issued a reconsidered determination that upheld Noridian's determinations.  I affirm the revocation of Petitioner's Medicare enrollment and billing privileges and his placement on the preclusion list.

I.  Background and Procedural History

Petitioner is a physician.  CMS Ex. 47 at 1.  In a letter dated November 29, 2017, Noridian informed Petitioner that he had "been identified in the top 1% of dollars paid for [CPT Codes1 ] 99213-99215 when compared with peers billing the same code," and that it

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had initiated a Targeted Probe and Educate (TPE) review consisting of up to "three rounds of prepayment probe review with education."  CMS Ex. 30 at 1.  Noridian explained that "[i]f there are continued high denials after three rounds, [it] will refer [Petitioner] to CMS for additional action . . . ."  CMS Ex. 30 at 1.  Noridian informed Petitioner that "[a] small sample of randomly selected claims are chosen to determine if a provider is billing and coding according to Medicare guidelines and to ensure services are reasonable and medically necessary."  CMS Ex. 30 at 1-2.  In an apparent effort to educate Petitioner, Noridian discussed the elements of CPT codes 99213, 99214, and 99215.  CMS Ex. 30 at 1-2.  Noridian explained that it would request additional documentation for each claim selected for review and that "[i]t is [his] responsibility . . . to provide the requested documentation within the allotted time frame."  CMS Ex. 30 at 2.  Noridian cautioned that a failure to timely provide requested documentation "will" result in denial of the claims and "will contribute to [his] error rate."  CMS Ex. 30 at 2.  Noridian instructed Petitioner to "[i]nform [his] staff responsible for receiving [development] letters and submitting the required documentation for this review."2   CMS Ex. 30 at 2.

On February 26, 2018, the case manager overseeing the TPE review spoke with Petitioner by telephone.  CMS Ex. 31 at 3.  The case manager informed Petitioner that the claims reviewed in Round 1 of the TPE review had a "100% error rate" because Petitioner had not responded to any of the ADS letters requesting documentation for the claims.  CMS Ex. 31 at 3.  Petitioner informed the case manager that he either did not receive the ADS letters or else "they were lost."  CMS Ex. 31 at 3; see P. Ex. 1 at 3 (Petitioner's testimony that his office manager "failed to respond to or inform [him] of the [Noridian] record requests").  The case manager documented that Petitioner handed the phone to someone on his office staff and that this individual referred her to Petitioner's "billing office."  CMS Ex. 31 at 3; see P. Ex. 1 at 2-3 (Petitioner's testimony that PMN, which was owned by S. Sadri, was his "authorized representative with respect to [his] Medicare enrollment" and that on February 26, 2018, he "decided that PMN, [his] billing company, should be the authorized point of contact for the ongoing Noridian review because PMN was already [his] authorized representative for Medicare enrollment issues and because coding of Medicare claims was PMN's field of expertise.").  Petitioner testified that his then-office manager "provided the Noridian reviewer with PMN's telephone number and contact information over the phone."  P. Ex. 1 at 3; see CMS Ex. 47 at 5-6 (enrollment record listing Ms. Sadri as an enrollment application contact person and the electronic funds transfer agreement contact person).

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That same day, on February 26, 2018, the case manager sent an email message to "Alicia," a PMN employee.  CMS Ex. 33.  The case manager discussed the TPE review with Alicia, including that Petitioner "was identified as one of the top providers in dollars paid for [CPT Codes] 99213-99215 when compared with peers billing the same code."  CMS Ex. 33.  The case manager "enclose[d] a couple of resources regarding the Evaluation and Management (E&M) codes that are being reviewed," and she recommended that Petitioner's "office review them so they become familiar with the documentation requirements when billing these codes."  CMS Ex. 33.  The case manager's email message included two hyperlinks to educational resources.  CMS Ex. 33.

In a subsequent email message sent on February 26, 2018, the case manager notified Alicia that she had reopened Petitioner's case file after she received documentation for some of the claims.3   CMS Ex. 34.  Although the 100% error rate would not change because the documentation had been received after the 45-day ADS letter response deadline, the case manager nonetheless reviewed the late-received documentation in order to educate Petitioner about "what his documentation is lacking."4   CMS Ex. 34.  The case manager explained that she had reviewed a couple of claims and that denial was warranted because "they don't meet Medicare requirements for the code(s) billed" and the "signature is not legible."  CMS Ex. 34.  The case manager provided a hyperlink for "education regarding what constitutes a legitimate signature."  CMS Ex. 34.

On March 6, 2018, the case manager notified Petitioner of the results of the Round 1 TPE review for CPT codes 99213, 99214, and 99215.  CMS Ex. 31 at 1.  The case manager reported that 35 out of 35 claims had been denied, "revealing an error rate of 100.00%."  CMS Ex. 31 at 1-2; see CMS Ex. 32 (claims data analysis).  Noridian explained that the "top reason" for denial was Petitioner's failure to produce documentation within 45 days.  CMS Ex. 31 at 2.

In addition to reporting the Round 1 findings, the case manager provided "education on errors" in Petitioner's claims.  CMS Ex. 31 at 2.  The case manager referenced CMS policy guidance addressing "timeframes for submission of records for pre-payment

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reviews," explaining that reviewers "shall deny claims for which the requested documentation was not received by day 46."  CMS Ex. 31 at 2.  The case manager also discussed that the review assesses the "medical necessity of the CPT code billed" and that a claim will be "correct coded to what documentation supports" if the documentation does not support the level of care billed or the medical necessity required for the CPT code.  CMS Ex. 31 at 2.  The case manager recommended that Petitioner review CPT Assistant, "Evaluation and Management:  Time" (Vol. 10, Issue 2, December 2000), which she noted "has extensive information regarding the elements required when billing based on time."  CMS Ex. 31 at 3.  The case manager also highlighted Ch. 12, § 30.6.1, of CMS Pub. 100-04 (Internet Only Manual (IOM) Medicare Claims Processing Manual) regarding the use of the correct CPT code.  CMS Ex. 31 at 3.  The case manager instructed that when the CPT code is based on time, documentation must "support the amount of time spent in discussion and detail the context of the conversation and any decisions made or actions that will result based on this counseling."  CMS Ex. 31 at 2.  The case manager explained that the medical necessity of a service is "the overarching criterion for payment in addition to the individual requirements of a CPT code."  CMS Ex. 31 at 3.

On April 11, 2018, Noridian conducted an "E-visit" to discuss the Round 1 TPE review findings.  See CMS Ex. 48 at 2-3 ("During the E-visit for Round 1, Dr. Moghaddam presented as angry and disrespectful and he persisted in talking over the case manager."); but see P. Ex. 1 at 4 (Petitioner's testimony that he "did not attend Noridian's April 11, 2018 one-on-one provider education session with PMN because [he] did not know that it had been scheduled . . . .").5  Presentation slides included a discussion of the elements for billing under CPT codes 99212, 99213, 99214, and 99215.  CMS Ex. 34.1 at 15-18.  With respect to CPT code 99213, Noridian once again explained the elements of that code, as follows:

Office or other outpatient visit for the evaluation and management of an established patient, which requires at least 2 of these 3 key components:  An expanded problem focused history; An expanded problem focused examination; Medical decision making of low complexity.  Usually, the presenting problem(s) are of low to moderate severity.  Typically, 15 minutes are spent face-to-face with the patient and/or family.

CMS Ex. 34.1 at 16; see CMS Ex. 30 at 1-2.  And with respect to CPT code 99214, Noridian again explained the elements of the code, as follows:

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Office or other outpatient visit for the evaluation and management of an established patient, which requires at least 2 of these 3 key components:  A detailed history; A detailed examination; Medical decision making of moderate complexity.  Usually, the presenting problem(s) are of moderate to high severity.  Typically, 25 minutes are spent face-to-face with the patient and/or family.

CMS Ex. 34.1 at 17; see CMS Ex. 30 at 2.  Noridian, addressing coverage and indications, instructed that there should be a correlation between the chief complaint, the history of present illness, examination findings, and medical decision-making.  CMS Ex. 34.1 at 24.  Noridian addressed medical necessity, explaining that a common error involves the lack of all required elements for the CPT code that is billed.  CMS Ex. 34.1 at 25-27.  Noridian recommended that Petitioner focus his improvement on submitting documentation within 45 days, submitting valid signatures, and familiarizing with "the required components of the various E&M codes" so that he could "[b]ill appropriately."  CMS Ex. 34.1 at 32.

After Noridian provided education at the conclusion of Round 1, it progressed to Round 2 of the TPE review process.6   CMS Ex. 35 at 1.  In a letter dated July 17, 2018, the case manager informed Petitioner that she was updating Petitioner about "the claim review findings for CPT 99213, 99214 and 99215."  CMS Ex. 35 at 1.  The case manager explained that a review of 35 Round 2 claims had revealed "an error rate of 77.14%."  CMS Ex. 35 at 1.  Of those claims, 27 claims were denied in full, 7 were paid in full, and 1 claim was "correct coded."  CMS Ex. 35 at 1-2; see CMS Ex. 36 (claims data analysis).  The case manager provided the following three "top reasons" for the denial of claims:  1.  The document submitted is not legible; 2.  The service was downcoded two levels as the documentation did not support the key elements and/or reasonable necessity of the code billed; and 3.  The documentation submitted was incomplete and/or insufficient.  CMS Ex. 35 at 2.  Under the heading of "Education," the case manager referenced the same educational resources that she had discussed in her letter summarizing the results of Round 1 of the TPE review process.  CMS Ex. 35 at 2-3; see CMS Ex. 31 at 3.  The case manager also explained that Section 1833(e) of Title XVIII of the Social Security Act (42 U.S.C. § 1395l(e)) states that "[n]o payment shall be made . . . unless there has been furnished such information as may be necessary in order to determine the amounts due . . . under this part . . . ."  CMS Ex. 35 at 3.  In summarizing recent educational efforts, the case manager recounted a July 9, 2018 telephone conversation with Alicia, who reported that Petitioner "is starting to use an electronic record which will help the

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illegibility issue of the denied claims."7   CMS Ex. 35 at 3.  The case manager reported that she had scheduled a second E-visit for August 16, 2018.  CMS Ex. 35 at 3; see CMS Ex. 37 (calendar invitation for the August 16, 2018 E-visit).  In the conclusion of her letter, the case manager warned that, pursuant to 42 C.F.R. § 424.535(a)(8)(ii), "CMS has the authority to revoke a currently enrolled provider or supplier's Medicare billing privileges if CMS determines that the provider or supplier has a pattern or practice of submitting claims that fail to meet Medicare requirements."  CMS Ex. 35 at 4.

Due to an apparent technical issue, the parties were unable to complete the E-visit at the scheduled time on August 16, 2018.  CMS Ex. 38.1 (email message from the case manager to Petitioner indicating that she was signed into the presentation and that Alicia reported that Petitioner and staff had been signed into the presentation); see CMS Ex. 48 at 3 ("No one attended the E-visit for Round 2 and after 20 minutes, the case manager made phone calls to the provider and sent emails requesting that they call in . . . .").8   In an email message sent that afternoon, the case manager offered to "give the presentation now" or, alternatively, to reschedule it for the following week.  CMS Ex. 38.1.  Petitioner did not respond to the case manager's offer to reschedule the presentation.9   CMS Ex. 48 at 2.  Presentation slides again addressed the elements of CPT codes 99213 and 99214, among other topics.10  CMS Ex. 38 at 17-19.

Petitioner testified that, upon the conclusion of Round 2, he "focused on responding to Noridian's third round of claim reviews, which included documentation requests for 35 claims with dates of service on September 4 and 5, 2018."  P. Ex. 1 at 5.  Petitioner reported that in response to ADS letters, he submitted "handwritten progress notes and typed written versions of those notes."  P. Ex. 1 at 5.  Petitioner reported that he prepared the responses on September 24 and October 24, 2018, and he timely mailed an unspecified number of responses prior to the 45-day deadline on October 28, 2018.  P. Ex. 1 at 5.  However, Petitioner did not report the actual date he submitted documentation

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in response to the 35 ADS letters, nor did he identify the specific claims for which he submitted documentation.  P. Ex. 1 at 5.  Although Petitioner inferred that he had fully complied with the documentation requests, he also recognizes that some documentation may not have been submitted by the 45-day deadline.  Petitioner's Motion for Summary Judgment and Opposition to CMS's Motion for Summary Judgment (P. MSJ) at 6 ("[E]ven if [Petitioner's] mailed documentation was late by only a few days, such a technical violation would still not support revocation as a 'pattern or practice.'").11

On November 7, 2018, during the course of the Round 3 TPE review, the case manager sent an email message to Alicia informing her that five claims would be downcoded, at which time she provided educational references.  CMS Ex. 41.  The case manager invited Petitioner to schedule a teleconference and cautioned that if the "improper payment rate at the conclusion of this round is significant, [Petitioner] will be referred to CMS for further direction which may include such things as recoupment of monies already paid, UPIC referral etc."  CMS Ex. 41.  The following day, the case manager informed Alicia that the aforementioned five claims would be denied, rather than downcoded, because Petitioner had not submitted legible documentation.  CMS Ex. 42.  Although Petitioner had submitted typed reports, the case manager explained that these reports were not

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acceptable documentation because the reports were not transcriptions of the progress notes.12   CMS Ex. 42.

In a January 3, 2019 email message, the case manager informed Alicia that the TPE review was being closed and that Petitioner would "be referred to CMS for further direction as [his] improper payment was 100% due to documentation not being submitted within 45 days."  CMS Ex. 43.  The case manager nonetheless requested an education E‑visit "to discuss the findings of the TPE review, the documentation requirements for the codes on review, and answer any questions [Petitioner] may have."  CMS Ex. 43.  On January 9, 2019, the case manager re-sent the same email message to Alicia after she did not receive a response.  CMS Ex. 44.  And yet again, on January 10, 2019, the case manager sent the email message to Alicia for a third time.  CMS Ex. 45.  Petitioner neither responded to the email messages nor accepted the case manager's invitation for an E-visit.13   See CMS Ex. 48 at 3 ("Three requests to schedule an educational E-visit following Round 3 were not responded to by the provider.").

In a letter dated January 23, 2019, Noridian notified Petitioner of the results of the Round 3 TPE review.  CMS Ex. 39.  Noridian reported that Petitioner did not timely provide documentation that supported the claimed services and that it had denied all 35 Round 3 claims.  CMS Ex. 39 at 1-2; see CMS Ex. 40 (claims data analysis).

In a March 5, 2020 initial determination, Noridian revoked Petitioner's Medicare enrollment and billing privileges, effective April 4, 2020, pursuant to 42 C.F.R. § 424.535(a)(8)(ii).14   CMS Ex. 17 at 1-2.  Noridian informed Petitioner that, pursuant to

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42 C.F.R. §§ 422.2, 422.222, 423.100, and 432.120(c)(6), he would be added to CMS's preclusion list.  CMS Ex. 17 at 2.  Noridian also barred Petitioner from re‑enrolling in the Medicare program for a period of 10 years.  CMS Ex. 17 at 3.

Petitioner submitted a request for reconsideration dated March 24, 2020, in which he "thank[ed] CMS for informing [him] of the mistakes that [his] biller and [he] have made."  CMS Ex. 1 at 2.  Petitioner stated that "[a]lthough [he] believe[d] [he] spent enough time during examination for each patient according to the medical condition, which justified using CPT code 99214 for most of them, [he was] willing to reimburse the difference to satisfy the possible over payment."  CMS Ex. 1 at 2.  Petitioner reported that he had "already educated [his] Medical Biller to make sure that the billing in the future will be compatible with the time spent or even will be less to satisfy Medicare rules and regulations."  CMS Ex. 1 at 2.  Petitioner explained that he had not discussed this matter with an attorney and that he "totally and completely agree[d] with [Noridian's] decision."  CMS Ex. 1 at 2.  Petitioner requested continuation of his enrollment and billing privileges "[d]ue to the recent outbreak o[f] Corona Virus [sic] and the fact that 80% of [his] patients are elderly and under Medicare for years."  CMS Ex. 1 at 2.  Petitioner included documentation for numerous claims that had been reviewed as part of the TPE review process.  CMS Exs. 2-16, 18-29; see CMS Ex. 46 at 2.

CMS, through its Provider Enrollment & Oversight Group, issued a reconsidered determination on May 6, 2020, in which it upheld the revocation of Petitioner's Medicare enrollment and billing privileges pursuant to 42 C.F.R. § 424.535(a)(8)(ii) and his placement on the preclusion list.  CMS Ex. 46.  CMS stated, in pertinent part:

Noridian made several attempts to educate [Petitioner], not only through the medical review results letter dated January 23, 2019, but also through emails and a scheduled one-on-one training session.  In some cases, these attempts were not successful as [Petitioner] was not receptive to the outreach . . . .  [Petitioner] neither contests the results of the medical review, nor appealed any of the claims at issue.  This behavior revealed similar abusive, noncompliant billing practices as indicated in the medical reviews conducted in

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early and mid-2018.  All of the medical reviews conducted in this case establish a pattern or practice of noncompliant billing.

In implementing the abuse of billing authority under § 424.535(a)(8)(ii), CMS stated that it would not define the term "pattern or practice," but would implement a revocation under this basis:  (1) in situations where the behavior could not be considered sporadic; and (2) after the most careful and thorough consideration of the relevant factors.  79 FR 72517 (December 5, 2014).  Given that [Petitioner] was provided several instances of specific education in 2018 and 2019, CMS considers this repeated behavior of incorrect billing to be systematic and not sporadic.

* * * *

Section 424.535(a)(8)(ii)(A) evaluates the percentage of submitted claims that were denied.  In this case, a review of [Petitioner's] claims with dates of service from October 23, 2017 through November 22, 2017, April 24, 2018 through April 26, 2018, and September 4, 2018 through September 5, 2018 was conducted and the percentage of denied claims is 100%, 80%, and 100%, respectively . . . .  These are unacceptably high error rates.  Many of the claims in these reviews were denied as the requested medical records provided by [Petitioner] were not submitted timely.  When [Petitioner] did provide medical records timely, Noridian found the documentation to be illegible, incomplete, and not sufficient or not medically reasonable to support the CPT codes as billed . . . .  Despite being given targeted and specific education, the percentages of [Petitioner's] claim denials remained high as he continued to submit noncompliant claims and refused to correct his previously identified billing errors. Nonetheless, irrespective of the education CMS provides, suppliers have a duty to submit for payment, claims that meet Medicare requirements.

CMS Ex. 46 at 8-9.  CMS also upheld Petitioner's placement on the preclusion list.  CMS Ex. 46 at 10-11.  In explaining that the first two conditions for preclusion set forth in 42 C.F.R. §§ 422.2 and 423.100 were met, CMS explained the following:

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As previously stated, [Petitioner] is currently revoked pursuant [to] § 424.535(a)(8)(ii) for engaging in the pattern or practice of abusive billing, which was also confirmed in the Provider Enrollment, Chain and Ownership System.  He is also under a 10-year re-enrollment bar. This decision, as stated above, upholds both the revocation and re-enrollment bar. Therefore, [Petitioner] satisfies the first two conditions for his inclusion on the CMS Preclusion List.

CMS Ex. 46 at 10.  With respect to the third condition for preclusion set forth in 42 C.F.R. §§ 422.2 and 423.100, CMS stated, in part:

CMS deems the conduct underlying [Petitioner's] revocation to be very serious and detrimental to the best interests of the Medicare program.  Medicare partners must accurately submit claims that meet Medicare requirements.  [Petitioner] engaged in abusive billing when he continued to submit claims to Medicare that failed to meet Medicare requirements due to his failure to provide legible records, and complete and sufficient documentation to substantiate the medical necessity of the CPT codes billed.  This conduct calls into question [Petitioner's] ability and willingness to be a trustworthy Medicare partner as he failed to timely submit documentation when requested to do so and failed to alter his noncompliant billing practices after being repeatedly educated.  Although [Petitioner] provided medical records with his reconsideration request, [Petitioner] made insufficient attempts to respond to Noridian's record requests in a timely manner and to rectify his pattern of abusive billing in spite of the three educational resources, several training emails and a one‑on-one visit provided to him.  Consequently, CMS considers these billing practices a serious threat to the Medicare Program.

CMS Ex. 46 at 10-11.

In a letter dated August 13, 2020, CMS notified Petitioner that it had reduced the length of his re-enrollment bar to three years.  P. Ex. 6.

Petitioner, through counsel, filed a request for an administrative law judge (ALJ) hearing on July 2, 2020.  Thereafter, the Civil Remedies Division acknowledged receipt of Petitioner's request for hearing and issued my Standing Pre-Hearing Order (Pre-Hearing Order) directing the parties to file pre-hearing exchanges in accordance with specific requirements and deadlines.  CMS filed a motion for summary judgment and pre-hearing

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brief, along with 48 proposed exhibits (CMS Exs. 1-48).  Petitioner filed both a pre‑hearing brief (P. Br.) and a cross-motion for summary judgment (P. MSJ), along with nine exhibits (P. Exs. 1-9).  CMS filed a response to Petitioner's cross-motion for summary judgment (CMS Response).15

CMS has not requested an opportunity to cross-examine Petitioner; therefore, a hearing for the purpose of cross-examination is unnecessary.  Pre‑Hearing Order §§ 12-14.  I consider the record to be closed and the matter ready for a decision on the merits.16

II.  Issue

Whether CMS had a legitimate basis to revoke Petitioner's Medicare enrollment and billing privileges pursuant to 42 C.F.R. § 424.535(a)(8)(ii).

Whether CMS had a legitimate basis to place Petitioner on the preclusion list pursuant to 42 C.F.R. §§ 422.2 and 423.100.

III.  Jurisdiction

I have jurisdiction to hear and decide this case.  42 C.F.R. §§ 498.1(g), 498.3(b)(17), 498.5(l)(2); see also 42 U.S.C. § 1395cc(j)(8).

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

1. Petitioner is a physician who reported that he has participated in the Medicare program since February 1990.17

2. In November 2017, Noridian notified Petitioner that it was initiating a TPE review because Petitioner had been identified as being "in the top 1% of dollars paid for [CPT codes] 99213-99215 when compared with peers billing the same code."

3. Noridian denied 35 out of 35 claims in Round 1 of the TPE review process because Petitioner failed to timely respond to 35 separate requests for documentation regarding those claims.

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4. The Noridian case manager considered untimely Round 1 claims documentation for educational purposes and informed Petitioner that the submitted documentation did not support the code billed and lacked a legible signature.

5. Following Round 1 and prior to the initiation of Round 2 of the TPE review process, the Noridian case manager provided an individualized E-visit session and identified resources to educate Petitioner.

6. Noridian reported its Round 2 findings to Petitioner in July 2018, at which time it informed Petitioner that, of 35 claims reviewed, it had denied 27 claims, paid 7 claims, and "correct coded" one other claim; Noridian identified resources to educate Petitioner and also explained that the top reasons for denial were that the documentation was not legible, did not support the key elements and/or reasonable necessity of the code billed, and was incomplete or insufficient.

7. The Noridian case manager and Petitioner were unable to complete an August 16, 2018 individualized training session at the scheduled time; Petitioner did not respond to a request that he reschedule the training for that same day or the following week.

8. The Noridian case manager contacted Petitioner during Round 3 of the TPE review process to explain that documentation was illegible and that typed medical reports were not acceptable documentation because the typed reports were not transcriptions of progress notes.

9. After Petitioner did not respond to three separate email messages requesting that he participate in a conference to discuss the Round 3 findings, Noridian issued a January 23, 2019 notice that it had denied 35 of 35 claims in that round due to a lack of supporting documentation.

10. On March 5, 2020, Noridian notified Petitioner that his enrollment and billing privileges would be revoked pursuant to 42 C.F.R. § 424.535(a)(8)(ii) and that he would be placed on the preclusion list pursuant to 42 C.F.R. §§ 422.2 and 423.100.

11. On May 6, 2020, CMS upheld the revocation of Petitioner's Medicare enrollment and billing privileges and his placement on CMS's preclusion list.

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12. Of 105 claims reviewed during the three-round TPE process over the course of nine months, Noridian denied or downcoded 98 of the 105 claims because Petitioner did not present documentation supporting the reasonableness and medical necessity of the services that had been billed in his Medicare claims.

13. Evidence does not reflect that Petitioner appealed Noridian's initial determinations denying or downcoding 98 of the 105 claims, and these determinations are administratively final.

14. Petitioner engaged in a pattern or practice of submitting claims that failed to meet Medicare requirements when he repeatedly did not submit required documentation supporting that billed services were reasonable and medically necessary.

15. Pursuant to 42 U.S.C. §§ 1395g(a) and 1395l(e), a Medicare claim cannot be paid unless the supplier provides necessary information to determine the amount payable. 

16. Because Petitioner repeatedly failed to provide documentation supporting payment of his claims submitted between December 2017 and September 2018, Noridian and CMS had a legitimate basis to revoke Petitioner's Medicare enrollment and billing privileges pursuant to 42 C.F.R. § 424.535(a)(8)(ii).

17. Petitioner has not presented any legal or factual arguments disputing his inclusion on the preclusion list.

18. Because Petitioner's Medicare enrollment has been revoked and he has been barred from re-enrollment, and also does not challenge CMS's determination that the conduct underlying his revocation is detrimental to the best interests of the Medicare program, CMS had a legitimate basis to place him on its preclusion list pursuant to 42 C.F.R. §§ 422.2 and 423.100.

Pursuant to 42 U.S.C. § 1395cc(j)(1)(A), CMS has promulgated enrollment regulations.  See 42 C.F.R. § 424.500 et seq.  These regulations give CMS the authority to revoke the billing privileges of an enrolled supplier if CMS determines that certain circumstances exist.  42 C.F.R. § 424.535(a).  Relevant to this case, CMS may revoke a supplier's billing privileges when it determines that the supplier has abused his or her billing privileges.  The revocation authority, 42 C.F.R. § 424.535(a)(8)(ii), states the following:

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(ii)  CMS determines that the provider or supplier has a pattern or practice of submitting claims that fail to meet Medicare requirements.  In making this determination, CMS considers, as appropriate or applicable, the following:

(A)  The percentage of submitted claims that were denied.
(B)  The reason(s) for the claim denials.
(C)  Whether the provider or supplier has any history of final adverse actions (as that term is defined under § 424.502) and the nature of any such actions.
(D)  The length of time over which the pattern has continued.
(E)  How long the provider or supplier has been enrolled in Medicare.
(F)  Any other information regarding the provider or supplier's specific circumstances that CMS deems relevant to its determination as to whether the provider or supplier has or has not engaged in the pattern or practice described in this paragraph.

42 C.F.R. § 424.535(a)(8)(ii).  At the time of the initial determination, CMS could impose a bar on re‑enrollment for a minimum of one year, but no more than ten years.  42 C.F.R. § 424.535(c)(i); see P. Ex. 6.

Additionally, CMS has established a single list of individuals and entities for whom Medicare Advantage plans cannot provide reimbursement for items and services they provide, and for prescribers to whom Medicare Part D plans cannot provide reimbursement for any prescriptions the individuals write.  42 C.F.R. §§ 422.222,  423.120(c)(6).  As relevant here, in order for CMS to include an individual, entity, or prescriber on its preclusion list, all of the following three requirements must be met:

(i) The [individual, entity, or prescriber] is currently revoked from Medicare for a reason other than stated in [42 C.F.R.] § 424.535(a)(3) . . .
(ii) The [individual, entity, or prescriber] is currently under a reenrollment bar under [42 C.F.R] § 424.535(c).
(iii) CMS determines that the underlying conduct that led to the revocation is detrimental to the best interests of the Medicare program.  In making this determination under this paragraph . . . , CMS considers the following factors:

(A) The seriousness of the conduct underlying the . . . revocation.

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(B) The degree to which the . . . conduct could affect the integrity of the [Medicare/Part D] program.
(C) Any other evidence that CMS deems relevant to its determination . . . .

42 C.F.R. §§ 422.2, 423.100.

Noridian informed Petitioner that it had revoked his Medicare enrollment and billing privileges based on a pattern or practice of submitting claims that failed to meet Medicare requirements, as evidenced by the denial or downcoding of 98 out of 105 claims submitted between December 2017 and September 2018.  Over the course of a three-round TPE review, Petitioner repeatedly failed to submit acceptable documentation in response to letters requesting that he provide information supporting his claims.  See 42 U.S.C. §§ 1395g(a) ("no such payments shall be made to any provider unless it has furnished such information as the Secretary may request in order to determine the amount due such provider"); 1395l(e) ("No payment shall be made to any provider of services . . . unless there has been furnished such information as may be necessary in order to determine the amounts due such provider . . . ."); 1395y(a)(1)(A) (excluding payments "for items or services [that] are not reasonable and necessary for the diagnosis or treatment of illness or injury . . . .").

Noridian denied the first 35 claims in Round 1 because Petitioner failed to comply with 35 separate requests that he submit documentation supporting his claims.  CMS Exs. 31, 32.  Petitioner has not alleged that he appealed the denial of these claims, nor has he submitted evidence that the denial of these claims is not administratively final.  Because Petitioner failed to produce documentation addressing the medical necessity and reasonableness of his Medicare claims for services provided to Medicare beneficiaries, his 35 Round 1 claims did not meet Medicare requirements.

Although Petitioner failed to timely respond to the Round 1 development requests for the 35 claims, he later submitted records for an unspecified number of claims.  CMS Ex. 34; P. Ex. 1 at 3 (Petitioner's testimony that he submitted documentation after his office manager informed him that "Medicare claims were being denied [because] supporting documentation had not been timely submitted within 45 days of [Noridian's] request.").  Noridian offered educational feedback regarding this documentation.  CMS Exs. 31, 34.  Noridian also provided a one-on-one E-visit to educate Petitioner.18   CMS Ex. 34.1; P. Ex. 1 at 4.

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Although Petitioner submitted documentation in response to the Round 2 ADS letters, Noridian denied or downcoded 28 of the 35 claims and paid only 7 claims in full because the submitted documentation did not support the elements of the CPT code, was illegible, or was incomplete or insufficient.19   CMS Ex. 35 at 1-2.  Once again, the case manager provided educational information.  CMS Ex. 35 at 2-3.  In addition, although there were apparent technical difficulties with an August 16, 2018 E-visit, Petitioner did not respond to the case manager's request to hold the session that same day or the following week.  CMS Ex. 38.1; P. Ex. 1 at 5; see CMS Ex. 38.

Noridian denied all 35 claims in the third round of the TPE review because Petitioner did not timely provide acceptable documentation.  CMS Ex. 39 at 1-2.  As I previously noted, although Petitioner testified that he timely submitted, prior to October 28, 2018, his "handwritten progress notes and typed written versions of those notes" (P. Ex. 1 at 5), the

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record reflects that documentation submitted included typed Medicare reports that had been prepared in March 2020 to address services billed in September 2018.20   CMS Exs. 8, 10, 18; see CMS Ex. 40 (claims data analysis).  Further, Noridian reported that the handwritten progress notes were not legible and that the typed transcriptions (i.e., the medical reports) did not mirror the information in the handwritten progress notes.  CMS Ex. 42 at 1; see pp. 7-8, n.11 (discussing that typed documents in CMS Exs. 10 and 18 are far more detailed than their handwritten counterparts).

In summary, Noridian, by affording Petitioner an opportunity to improve his billing practices through the TPE review process, allowed him multiple opportunities over the course of nine months to submit claims that met Medicare requirements.  Despite this extended opportunity to improve his billing practices, 98 of the 105 claims reviewed were denied or downcoded, even after Petitioner was provided with education, feedback about his claim submissions, and reference materials.  Petitioner engaged in a pattern of abusive billing pursuant to section 424.535(a)(8)(ii), in that he had a pattern or practice of submitting claims that failed to meet Medicare requirements.  42 C.F.R. § 424.535(a)(8)(ii); 79 Fed. Reg. 72,500, 72,515 (2014) ("The term 'abusive,' as used in the context of § 424.535(a)(8)(ii), is meant to capture a variety of situations in which a provider or supplier regularly and repeatedly submits non-compliant claims over a period of time.").  Petitioner repeatedly failed to submit documentation supporting the medical necessity and reasonableness of his claims, even when he actually provided a timely response to requests for documentation.  CMS had a legitimate basis to revoke Petitioner's enrollment and billing privileges.

Petitioner argues that "CMS has submitted no evidence proving that [he] habitually and systemically violated a Medicare requirement regarding the timeliness of supporting documentation or submitted documentation that was illegible or otherwise insufficient to support the . . . claims subject to the TPE audit or that [Petitioner] ignored the supposed education . . . about the relevant claim requirements."  P. MSJ at 4; see also P. MSJ at 11-12 (making a similar argument with respect to Round 3 claims).  However, Petitioner "does not dispute that his office inadvertently failed to submit Round 1 medical records within Noridian's 45-day deadline" (P. MSJ at 5), and, therefore, Petitioner does not dispute that he did not respond to 35 separate requests for documentation regarding his Round 1 claims.  Because Noridian had not received responses to its 35 separate documentation requests at the time it denied the claims, it had an appropriate basis to deny these claims.  42 U.S.C. § 1395g(a) ("[N]o such payments shall be made to any provider unless it has furnished such information as the Secretary may request in order to

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determine the amounts due such provider . . . .").21   With respect to Round 3 claims, Petitioner has not submitted any documentary evidence that he timely submitted the requested documentation for all 35 claims.  Rather, the only evidence cited by Petitioner is his self-serving statement which is contradicted by the evidence of record.  P. Ex. 1 at 5.  For example, although Petitioner testified that, prior to October 28, 2018, he submitted "[his] handwritten progress notes and typed written versions of those notes to [Noridian]," the record reflects that at least three of the "typed written versions" of his progress notes are dated March 23 and 24, 2020, which is on or about the date listed on his request for reconsideration.  CMS Exs. 8 at 1, 10 at 1, 18 at 1; P. Ex. 1 at 5; see CMS Ex. 1 at 2.  Further, Petitioner does not state in his carefully worded testimony that he submitted documentation for all 35 claims in response to Noridian's ADS letters, and thus, even if I were to accept Petitioner's claims as credible, such evidence, alone, is vague and insufficient.  P. Ex. 1 at 5.  Moreover, to the extent that Noridian considered documentation submitted in response to its documentation requests, it determined that the documentation did not support the reasonableness and medical necessity of the services.  See CMS Ex. 42 at 1 (email from case manager reporting that five claims had been denied because the documentation did not support the claims and explaining that the typed notes were unacceptable because they did not match the handwritten progress notes).

Petitioner argues that "CMS points to no statutory or regulatory authority that a failure to meet [the] 45-day deadline, as opposed to submitting no documentation at all" warrants revocation of Petitioner's billing privileges.22   P. MSJ at 5; see P. MSJ at 11.  Federal law

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mandates that neither CMS nor an administrative contractor may pay claims when a provider or supplier has not provided the necessary information in response to a request for such information.  42 U.S.C. §§ 1395g(a), 1395l(e).  CMS has determined that 45 days is a reasonable amount of time to provide this information, and at the conclusion of that time period, it can issue a determination on the pending claim.23   Petitioner points to no authority allowing an indefinite amount of time to comply with the congressionally‑mandated requirement that he provide the information necessary for the contractor to determine whether his claims should be paid.  And to the extent Petitioner believed that the contractor incorrectly denied his claims because he had timely submitted the requested documentation, his recourse would have been to appeal the denial of those claims through the Medicare claims appeals process.24

Petitioner, particularly focusing on Round 2 of the TPE review process, also argues that Noridian did not provide him with education.  P. MSJ at 12; see P. Ex. 1 at 7.  Petitioner claims that "Noridian in fact never provided [Petitioner] with any information explaining why [his] supporting documentation for any specific Round 2 claim denial was 'incomplete and/or insufficient' or 'did not support the key elements and/or reasonable necessity of the code billed.'"  P. MSJ at 12.  Petitioner is mistaken.  Noridian, on numerous occasions, provided education and/or directed him to educational resources.  CMS Exs. 30 at 1-2, 31 at 2-3, 32, 33, 34, 34.1, 35 at 2-3, 36, 37, 38, 38.1, 39 at 2-3, 40, 41.  And with respect to Round 2, not only did Noridian inform Petitioner of the "top reasons for denial," but it also provided references to training resources.  CMS Ex. 35 at 2-3.  Further, Noridian explained that "[m]any records can be read or interpreted only by the physician who wrote them," and "[i]t is therefore important that your notes are

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written legibly."  CMS Ex. 35 at 3.  Noridian also unambiguously informed Petitioner that "[d]ocumentation needs to be legible" because section 1833(e) of the Social Security Act precludes payment unless information is furnished to determine the amount reimbursable for those services.  CMS Ex. 35 at 3.  Additionally, although Petitioner claims he did not participate in the E-visit that preceded Round 2, he acknowledged that the PMN employee who participated in the E-visit informed him "that Noridian had raised a concern about the legibility of [his] handwritten progress notes" and that he had decided to submitted "typewritten versions" of his notes to address these concerns.  P. Ex. 1 at 4; but see CMS Ex. 48 at 2-3 (case manager's report that Petitioner participated in the first E-Visit).  And finally, after a scheduled second E-visit did not take place due to apparent technical issues, Petitioner failed to respond to the case manager's offer to reschedule the session as soon as that same afternoon.  CMS Ex. 38.1 (email from case manager to Petitioner); see P. Ex. 1 at 5 ("My office staff, who were responsible for managing my email account, never showed me Noridian's email offer to reschedule the session.").

Petitioner, in his testimony, repeatedly blames others for the failures that ultimately resulted in the revocation of his enrollment and billing privileges, and claims he was unaware of correspondence, email messages, and communications with Noridian.  P. Ex. 1 at 3 ("My staff and I never received Noridian's November 29, 2017 letter . . . ." and "My office manager, who was responsible for opening and responding to all mail, failed to respond to or inform me of [Noridian's] record requests that were received sometime shortly after the claims were billed by PMN on December 5, 2017."); P. Ex. 1 at 4 ("I did not attend Noridian's April 11, 2018 one-on-one provider education session with PMN because I did not know that it had been scheduled and never received the Noridian power point regarding E&M documentation . . . ."); P. Ex. 1 at 5 ("My office staff, who were responsible for managing my email account, never showed me Noridian's email offer to reschedule the [August 16, 2018 E-visit] session . . . ." and "[F]rom Noridian's January 23, 2019 letter, I learned for the first time that the [Noridian] reviewer had emailed PMN employee [Alicia] five times on November 7 and 8, 2019 and on January 3, 9 and 10, 2019 to discuss the third round review results and had received no response," and "I was never informed by PMN about these Noridian communications and PMN's failure to respond to them occurred without my knowledge or consent."); P. Ex. 1 at 6 (inferring that any upcoding by his billing company occurred because "PMN provided me with an improper superbill form that appeared designed to fraudulently inflate PMN's fee of 6% of collections by having me only bill CPT code 99213 or 99214 for [my] E&M office visits," and stating, "I believe that I was affirmatively misled by PMN, the biller on whose expertise I also reasonably relied in part regarding the coding of [my] E/M claims.");25 P. Ex. 1 at 7 ("I do not believe that Noridian provided any helpful education

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to me during the review process about what was wrong with my E&M documentation other than raising a concern about its legibility . . . ."); but see CMS Exs. 30 at 1-2, 31 at 2-3, 32, 33, 34, 34.1, 35 at 2-3, 36, 37, 38, 38.1, 39 at 2-3, 40, 41, 42, 43, 44, 45.  Petitioner essentially claims that he bears no responsibility for his revocation due to the repeated failure to submit claims that meet Medicare requirements and that these failures were due to his billing company, office manager, office staff, the Noridian case manager, and Noridian.  The simple fact is that Petitioner is ultimately responsible for whether he complies with Medicare requirements.  After Petitioner had been informed that his billing practices were being reviewed, and also learned that he failed to respond to 35 separate ADS letters resulting in claims denials, Petitioner nonetheless relied on his office staff and billing company, rather than taking a proactive role in supervising the submission of his claims.  And after Petitioner learned that documentation he submitted during Round 2 of the TPE review did not support the overwhelming majority of his claims, he nonetheless continued to rely on his billing company and office staff, rather than personally ensuring that his claims met Medicare requirements and that he complied with documentation requests.  Petitioner cannot absolve himself of responsibility by blaming others for these failures.

CMS explained in rulemaking for 42 C.F.R. § 424.535(a)(8)(ii) that "a provider or supplier should be responsible for submitting valid claims at all times and that the provider or supplier's repeated failure to do so poses a risk to the Medicare Trust Funds."  79 Fed. Reg. at 72,513.  CMS further explained that its intention was not to revoke billing privileges based on a "misunderstanding of these policies," but cautioned that "Medicare billing privileges come with a responsibility for the provider to diligently seek and obtain clarification of Medicare policies should there be a misunderstanding or confusion."  79 Fed. Reg. at 72,514.  CMS also discussed that "[t]he term 'abusive,' as used in the context of § 424.535(a)(8)(ii), is meant to capture a variety of situations in which a provider or supplier regularly and repeatedly submits non-compliant claims over a period of time."  79 Fed. Reg. at 72,515.

Despite the fact that Noridian had informed Petitioner that it was conducting a prepayment review of his claims and providing education to help him improve his billing practices (CMS Ex. 30), Noridian ultimately denied 98 of the 105 claims submitted over a lengthy period of review, between December 2017 and September 2018, because Petitioner failed to submit documentation supporting the reasonableness and medical necessity of the claimed services.  See CMS Exs. 32, 36, 40.  Petitioner, as a supplier in the Medicare program dating back to February 1990 (P. Br. at 1-2), should have understood the basic elements of the CPT codes under which he frequently and repeatedly billed his services.  Although Petitioner generally disagrees with his revocation pursuant to subsection 424.535(a)(8)(ii), he does not argue that revocation is

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inappropriate based on any of the enumerated regulatory factors listed in subsections (A) through (F) of 42 C.F.R. § 424.535(a)(8)(ii).  The evidence establishes that Petitioner had a pattern or practice of submitting claims that failed to meet Medicare requirements.  42 C.F.R. § 424.535(a)(8)(ii).

Because Petitioner has not addressed the effective date of the revocation or the duration of the re-enrollment bar, I need not address these issues.  See 42 C.F.R. §§ 424.535(c), 498.3(b).

Petitioner does not present any legal or factual arguments disputing his inclusion on the preclusion list.

Petitioner makes cursory and conclusory statements disagreeing with his placement on the preclusion list, but he otherwise does not dispute that CMS had a legitimate basis to place him on the preclusion list.  P. Br. at 13-14; P. MSJ at 10-13.  Because I have upheld Petitioner's revocation pursuant to 42 C.F.R. § 424.535(a)(8)(ii), and Petitioner is subject to a bar to re-enrollment through April 3, 2023 (P. Ex. 6 at 1), the first two requirements for inclusion on the preclusion list are met.  42 C.F.R. §§ 422.2, 423.100.

As for the third requirement listed in 42 C.F.R. §§ 422.2 and 423.100, CMS determined that Petitioner's conduct underlying his revocation was detrimental to the best interests of the Medicare program.  CMS Ex. 46 at 10-11.  CMS determined that the conduct underlying Petitioner's revocation was "very serious and detrimental to the best interests of the program" and that he "engaged in abusive billing when he continued to submit claims to Medicare that failed to meet Medicare requirements due to his failure to provide legible records, and complete and sufficient documentation to substantiate the medical necessity of the CPT codes billed."  CMS Ex. 46 at 10-11.  CMS stated that Petitioner's conduct "calls into question [his] ability and willingness to be a trustworthy Medicare partner as he failed to timely submit documentation when requested to do so and failed to alter his noncompliant billing practices after repeatedly being educated."  CMS Ex. 46 at 11.  CMS determined that Petitioner's billing practices are "a serious threat to the Medicare Program."  CMS Ex. 46 at 11.  Petitioner does not dispute this determination, and CMS has demonstrated it had a legitimate basis to determine that the conduct underlying the revocation was detrimental to the best interests of the Medicare program.

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V.  Conclusion

I affirm the determinations revoking Petitioner's Medicare enrollment and billing privileges and placing him on CMS's preclusion list.

1. Current procedural terminology (CPT) codes, which are maintained by the American Medical Association, are used by physicians when billing for, inter alia, medical services.  See, e.g., https://www.ama-assn.org/practice-management/cpt (last visited January 25, 2021).
• back to note 1
2. Petitioner testified that neither he nor his staff received this letter.  P. Ex. 1 at 3.  However, in the same paragraph, Petitioner claimed that his office manager had not responded to or informed him of 35 separate Automated Development System (ADS) letters that Noridian sent to him during Round 1 of the TPE review.  P. Ex. 1 at 3; CMS Ex. 31 at 3.
• back to note 2
3. Petitioner submitted this documentation after Noridian had denied claims based on non-receipt of documentation in response to ADS letters.  Petitioner testified that after his office manager informed him in January 2018 that "certain Medicare claims were being denied by Noridian because requested supporting documentation had not been timely submitted within 45 days of [Noridian's] request," he "told [his] staff to copy the requested records for the patient visits and to immediately send them to Noridian."  P. Ex. 1 at 3.
• back to note 3
4. Further, as noted above, Noridian had already denied Petitioner's claims.  See P. Ex. 1 at 3.
• back to note 4
5. Petitioner acknowledges that Alicia, who participated in the April 11, 2018 E-visit, reported to him that "Noridian had raised a concern about the legibility of [his] handwritten progress notes."  P. Ex. 1 at 4.
• back to note 5
6. Petitioner reported that, based on feedback received from Alicia following the April 11, 2018 E-visit, he "submitted [his] handwritten progress notes to Noridian, but also included typewritten versions to directly address [Noridian's] alleged legibility concern" when he submitted documentation in response to ADS letters.  P. Ex. 1 at 4.
• back to note 6
7. The evidentiary record does not support that Petitioner used an electronic records process.
• back to note 7
8. The case manager further remarked that Petitioner "stated he called in for the E-visit although the case manager was unable to determine that anyone called in for it or signed into the E-visit presentation."  CMS Ex. 48 at 3.
• back to note 8
9. Petitioner testified that his "office staff, who were responsible for managing [his] email account, never showed [him] Noridian's email offer to reschedule the session."  P. Ex. 1 at 5.
• back to note 9
10. The email message scheduling the E-visit included a hyperlink to access the conference and presentation materials.  The record does not evidence whether Petitioner actually accessed this hyperlink.  CMS Ex. 37.
• back to note 10
11. With his reconsideration request, Petitioner submitted documentation that purports to be responses to ADS letters for 10 claims that were reviewed in Round 3 of the TPE review process.  CMS Ex. 46 at 2; see CMS Exs. 3, 4, 8, 9, 10, 18, 22, 23, 24, 25.  Contrary to Petitioner's testimony, this sample evidences that he did not submit both a typewritten document (in the form of a letter styled as a "medical report") and his original handwritten notes for each claim within 45 days.  P. Ex. 1 at 5.  For example, the typed medical reports for three purportedly timely responses are each dated March 23 or 24, 2020 (which are on or about the date listed on the reconsideration request), even though the claims for each service had been submitted more than a year earlier on September 13, 2018.  CMS Exs. 8 at 1, 10 at 1, 18 at 1; see CMS Exs. 46 at 2 (list of exhibits submitted by Petitioner); 40 (claims data analysis, claims submission date September 13, 2018); P. Ex. 1 at 5 (Petitioner's claim that he timely submitted typed reports and handwritten progress notes for each claim).  I also observe that two other responses included typed medical reports dated "May 25, 2018" (addressing services provided on September 4 and 5, 2018), with both submissions lacking any handwritten progress notes.  CMS Exs. 22, 24.  Further, four other claims include typed medical reports that are dated after the September 13, 2018 submission date of each claim, indicating that Petitioner created these documents solely for the purpose of responding to the ADS letters.  CMS Exs. 3, 4, 23, 25 (all dated September 24, 2018).  Additionally, another submission includes handwritten progress notes, but lacks a typewritten report.  CMS Ex. 9.
• back to note 11
12. It is apparent that these medical reports contain far greater detail than the contemporaneous handwritten progress notes.  For example, the progress notes for one claim contain approximately 30 illegible words, whereas the typewritten report contains more than 100 typewritten words (excluding the body system headings) in the physical examination section, alone.  CMS Ex. 10.  Similarly, the handwritten progress notes for another claim contain no more than 40 illegible words, whereas the typed paragraph for "Cranial Nerve Testing," alone, contains more than 100 words.  CMS Ex. 18.
• back to note 12
13. Petitioner reported that he was unaware of Noridian's repeated communications regarding Round 3 of the TPE review.  P. Ex. 1 at 5 ("[F]rom Noridian's January 23, 2019 letter, I learned for the first time that the [Noridian] reviewer had emailed PMN employee [Alicia] five times on November 7 and 8, 2019, and on January 3, 9 and 10, 2019 to discuss the third round review results and had received no response.").  Petitioner added that he "was never informed by PMN about these Noridian communications and PMN's failure to respond to them occurred without [his] knowledge or consent."  P. Ex. 1 at 5.
• back to note 13
14. There is more than a one-year gap between the conclusion of Round 3 and Noridian's revocation determination.  I note that a Medicare contractor, within one year, may reopen an initial determination.  42 C.F.R. § 405.980(b)(1); but see 42 C.F.R. §§ 405.980(b)(2)-(5), (c), 405.924(b), 405.926(l), 405.986 (allowing a longer period for reopening under narrow circumstances, with such a decision to reopen not subject to administrative review).  Based on the passage of more than a year, and Petitioner's failure to present evidence that he appealed the denial of any claims, the denied claims were administratively final at the time Noridian issued its March 5, 2020 initial determination.
• back to note 14
15. Although CMS's response is accompanied by a motion for leave, a response to a motion for summary judgment is contemplated by the Pre-Hearing Order.
• back to note 15
16. As an in-person hearing to cross-examine witnesses is not necessary, it is unnecessary to further address the parties' motions for summary judgment.
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17. Findings of fact and conclusions of law are in italics and bold font.
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18. Petitioner's submissions evidence apparent brazenness in billing under CPT code 99214.  See CMS Ex. 30 at 1 (elements of CPT code 99214).  For example, CMS Ex. 6, which contains a medical report dated March 23, 2020, provides the following information, in totality, regarding an October 23, 2017 service:



Patient's complaints:  1. Anxiety. 2. Depression. 3. Hyperlipemia. 4. Low Vit D.

Diagnoses:  1. Hypertension. 2. Hyperlipidemia. 3. Allergic rhinitis. 4. Vit D Deficiency.

Medication:  1. Lexapro 10mg 1/day. 2. Vit D 50000 IU. 3. Omega3 fatty acid 2/day. 4. Flonase spray 2X/day.

Summary and Conclusions:  I saw [this patient] on October 23, 2017.  The patient's complaints were consistent with the objective findings of my examination.

CMS Ex. 6 at 1.  The required elements to bill under CPT 99214 code are absent.  CMS Ex. 6 at 1; see CMS Ex. 30 at 2.
• back to note 18
19. Similarly, Petitioner's submissions evidence a lack of regard for the elements of CPT code 99213.  See CMS Ex. 30 at 1-2 (elements of CPT code 99213).  For example, CMS Ex. 29, which contains a medical report dated June 1, 2018, provides the following information, in totality, regarding an April 25, 2018 service:



The patient, a 29-year-old male, presented for a refill of medication for his asthma, bronchitis, and cough.

Diagnoses:  1. Bronchitis 2. Asthma 3. Cough.

Medication:  1. Ceftin 500g 2/day 2. Ventolin HFA.

CMS Ex. 29 at 1.  Once again, the required elements to bill under the CPT code are absent.  CMS Ex. 29 at 1; see CMS Ex. 30 at 1-2.
• back to note 19
20. I note that a total of 10 responses to Round 3 ADS letters are included in the evidentiary record.  CMS Exs. 3, 4, 8, 9, 10, 18, 22, 23, 24, 25; see CMS Ex. 46 at 2.
• back to note 20
21. While a failure to provide documentation in response to 35 separate requests could be inadvertent, as Petitioner claims (P. Ex. 1 at 3), there is also a possibility that Petitioner or his office staff did not respond to the documentation requests because there was no documentation available.  A supplier may strategically attempt to essentially write off a claim if he or she lacks any documentation to support the claim.  Noridian warned at the outset of the TPE review process that it would factor any denials resulting from a failure to provide requested documentation into the "error rate," and Noridian had good reason for doing so.  CMS Ex. 30 at 2.
• back to note 21
22. Petitioner argues that Noridian "refused to modify its 100% Round 1 denial rate" even though he had belatedly submitted documentation.  P. MSJ at 5.  To be clear:  Noridian had already denied the Round 1 claims at the time Petitioner belatedly submitted documentation in support of his claims.  CMS Exs. 31 at 1-2; 34; see P. Ex. 1 at 3 (Petitioner's report that he provided records only after he learned that Noridian had been denying the claims).  Because Noridian had denied the claims, it is a correct statement that 35 of 35 claims in Round 1 had been denied.  Petitioner has not argued, much less presented evidence, that he sought reconsideration of any of these claims.  Therefore, the denial rate for Round 1 claims remains 100 percent.  To the extent that the Noridian case manager reviewed documentation submitted after the claims had been denied, she explained that "it will not change the fact that the error rate is 100% for not returning documentation within 45 days, although it does provide us with an opportunity to educate him regarding what his documentation is lacking."  CMS Ex. 34.  Thus, although the claims had already been denied due to Petitioner's failure to respond to the ADS letters, the case manager nonetheless provided Petitioner with feedback regarding the late-submitted documentation.  CMS Ex. 34.
• back to note 22
23. Based on Petitioner's logic, administrative contractors should indefinitely hold claims open to allow for the submission of supporting documentation.  Such an approach is inconsistent with administrative efficiency and would unduly delay either the approval of a claim or the opportunity to appeal a denied claim.
• back to note 23
24. Further, to the extent Petitioner disagrees with Noridian's denial or downcoding of the vast majority of Round 2 claims because documentation was illegible, incomplete,  insufficient, or otherwise did not support the elements of the billing codes, I similarly note that Petitioner's recourse would have been to timely appeal the denied or downcoded claims.  P. Br. at 6-7, 12.  There is no evidence that Petitioner did so, and these determinations are administratively final.
• back to note 24
25. Petitioner claims that he completed a superbill in which he circled one of the pre‑printed CPT codes listed on the form.  See P. Exs. 4, 5.  Petitioner has not submitted any evidence that he sent PMN his progress notes or other documentation and requested that PMN determine the appropriate CPT code.
• back to note 25