Jessica Yaudes, FNP-BC, DAB CR6134 (2022)

DECISION

Petitioner, Jessica Yaudes, FNP-BC, is a Board-certified family nurse practitioner, practicing in Tennessee, who, until March 13, 2020, was enrolled in the Medicare program as a supplier of services.  Because she was unable to produce patient medical records that a Medicare program integrity contractor requested, the Centers for Medicare & Medicaid Services (CMS) revoked her Medicare billing privileges pursuant to 42 C.F.R. § 424.535(a)(10) and imposed a three-year reenrollment bar.

Petitioner now appeals.

I affirm CMS’s determination.  I find that CMS is authorized to revoke Petitioner’s Medicare privileges because she ordered durable medical equipment for patients but did not maintain medical records for those patients and could not supply the records when the program integrity contractor requested them.  I have no authority to review the length of the reenrollment bar.

Page 2

Background

In a letter dated February 12, 2020, the Medicare contractor, Palmetto GBA, advised Petitioner that her Medicare privileges were revoked, effective March 13, 2020.  The letter explained that the contractor revoked Petitioner’s Medicare privileges pursuant to 42 C.F.R. § 424.535(a)(10), because, when asked to do so, she did not provide, to SafeGuard Services, LLC, the “Unified Program Integrity Contractor,” medical records for 20 Medicare beneficiaries for whom she had ordered DMEPOS (durable medical equipment, prosthetics, orthotics, and supplies).  Failing to provide access to the requested documentation violates 42 C.F.R. § 424.516(f). CMS Ex. 4 at 1.  The contractor imposed a ten-year reenrollment bar, pursuant to 42 C.F.R. § 424.535(c).  CMS Ex. 4 at 2.

Palmetto subsequently reduced the period of the reenrollment bar to three years.  CMS Ex. 5.

Petitioner requested reconsideration.  CMS Ex. 6.  In a reconsidered determination, dated December 29, 2020, a CMS hearing officer upheld the revocation.  CMS Ex. 7.

Petitioner timely appealed.

Decision based on the written record.  My pre-hearing order directed the parties to exchange, as a proposed exhibit and in the form of an affidavit or written declaration, the written direct testimony of any proposed witness.  Acknowledgment and Pre-hearing Order at 3, 5, 6 (¶¶ 4(c)(iv), 8, 9, 10) (March 3, 2021).  The order pointed out that a hearing would be necessary only if a party files admissible, written direct testimony, and, in compliance with the order, the opposing party asks to cross-examine.  Order at 6 (¶ 10).  Neither party proposes any witnesses.  Because there are no witnesses to be examined or cross-examined, an in-person hearing would serve no purpose, and I may decide this case based on the written record.1

Exhibits.  CMS submits its motion for summary judgment and brief (CMS Br.) with seven exhibits (CMS Exs. 1-7).  Petitioner submits her brief (P. Br.) with two exhibits (P. Exs. 1-2).

Page 3

In the absence of any objections, I admit into evidence CMS Exs. 1-7 and P. Exs. 1-2.

Discussion

The Medicare Program.  The Medicare program, Title XVIII of the Social Security Act (Act), is a federally-subsidized insurance program that provides health care benefits to the elderly, disabled, and those suffering from end stage renal disease.  Medicare is divided into four parts: 

• Part A is the hospital insurance program.  It covers hospital services, post-hospital extended care, home health, and hospice care.  Act § 1811 (42 U.S.C. § 1395c);
• Part B, which is voluntary, is the supplementary medical insurance program, covering physician, home health, hospice, and other services.  Act § 1832 (42 U.S.C. § 1395k);
• Part C is the Medicare Advantage program, which allows its participants to enroll in “Medicare + Choice” plans, managed by organizations, such as health maintenance organizations, that receive a fixed payment for each enrollee.  Act § 1851 (42 U.S.C. § 1395w-21); and
• Part D is the voluntary prescription drug benefit program.  Act § 1860D (42 U.S.C. § 1395w-101).

The Medicare program is administered by CMS, acting on behalf of the Secretary of Health and Human Services.  CMS regulates the Medicare enrollment of providers and suppliers.  Act § 1866(j)(1)(A) (42 U.S.C. § 1395cc(j)(1)(A)).  Physicians and other practitioners (such as Petitioner) may participate in the program as “suppliers” of services.  Act § 1861(d), (s)(2)(H)(K) (42 U.S.C. § 1395x(d), (s)(2)(H)(K)); 42 C.F.R. § 400.202.

CMS contracts with Medicare administrative contractors, who process and pay reimbursement claims and perform other duties necessary to carry out program purposes.  Act § 1842 (42 U.S.C. § 1395u).  Contractors pay claims to “providers” (Part A) and “suppliers” (Part B).

Page 4

1. CMS may revoke Petitioner Yaudes’ Medicare enrollment pursuant to 42 C.F.R. § 424.535(a)(10) because she ordered DMEPOS items for Medicare beneficiaries but did not maintain documentation relating to those orders and, when the Medicare program integrity contractor asked her to provide that documentation, she would not or could not produce it.2

Revocation of enrollment.  The Medicare statute authorizes the Secretary of Health and Human Services to revoke a supplier’s Medicare enrollment (for a period of not more than one year for each act) if the supplier does not maintain, and, upon request, provide access to documentation relating to written orders or requests for payment for durable medical equipment or other items or services written or ordered by the supplier.  Act § 1842(h)(9) (42 U.S.C. § 1395u(h)(9)).  Implementing the statutory provisions, CMS’s regulations provide that CMS, acting on behalf of the Secretary, may revoke a supplier’s Medicare enrollment if she doesn’t comply with the documentation or access requirements of 42 C.F.R. § 424.516(f).  42 C.F.R. § 424.535(a)(10).

Section 424.516(f)(2)(i) provides that a physician or an “eligible professional” who orders DMEPOS items must maintain documentation of the transactions for seven years.  “Documentation” includes written and electronic documents, including the NPI (national provider identifier) of the physician or eligible professional, relating to written orders and certifications and requests for payment for items of DMEPOS.  42 C.F.R. § 424.516(f)(1)(ii).

Program integrity contractors were established to help safeguard the Medicare program, and SafeGuard was the “Southeastern Unified Program Integrity Contractor.”  CMS Ex. 3 at 3.  A program integrity contractor’s responsibilities include “reviewing the accuracy and justification of all services reimbursed by the [Medicare] program.”  Id.

Petitioner’s noncompliance with the documentation and access requirements of section 424.516(f).  Petitioner is a nurse practitioner, who was licensed and practicing in Tennessee.  CMS Ex. 2.  She is an “eligible professional” and therefore subject to the documentation and access requirements of section 424.516.  See Act §§ 1848(k)(3)(B) (42 U.S.C. § 1395w-4(k)(3)(B)), 1842(b)(18)(C)(i) (42 U.S.C. § 1395u(b)(18)(C)(i)), 1861(aa)(5) (42 U.S.C. § 1395x(aa)(5)); 42 C.F.R. § 400.202; 73 Fed. Reg. 38,501, 38,539 (July 7, 2008).

Page 5

In letters dated December 9, 2019, SafeGuard advised Petitioner that it was reviewing her Medicare claims data.3  CMS Ex. 3 at 3-5, 15-17, 28-30.  The letters included a list of 20 Medicare beneficiaries, with identifying information, and asked Petitioner to produce their medical records within 45 days of the date of the letter.  CMS Ex. 3 at 6, 18, 31.  Although a copy of this letter was sent to the correspondence address listed in Petitioner’s Medicare enrollment record, Petitioner maintains that this was an old address and that she did not receive the notice “for an extended period of time.”  P. Br. at 4.  In any event, SafeGuard sent her an additional copy of the letter by fax on January 8, 2020.  CMS Ex. 3 at 37-43.

Any delay in Petitioner’s receiving SafeGuard’s letter is not significant; she concedes that she received the letter and, in any event, there is no question that she did not maintain patient records and is thus unable to produce them.  P. Br.

The “eligible professional who signed the order or certification is responsible for maintaining and disclosing the documentation.”  George M. Young, DAB No. 2750 at 10 (2016)(quoting 77 Fed. Reg. 25,284, 25,310 (Apr. 27, 2012)).  Even practitioners “who may not have immediate, ready access to and direct control over medical documents . . . would be expected to adhere to the record retention and disclosure requirements.”  Id.  CMS is therefore authorized to revoke her Medicare enrollment.  Act § 1842(h)(9); 42 C.F.R. § 424.535(a)(10); Young, M.D., DAB No. 2750 at 8.

Petitioner, however, denies ordering DME for any of the patients listed in SafeGuard’s records request.  She maintains that, working through a “contracted agency, Barton Associates,” she reviewed DME orders from a Florida-based company, REMN, and its principal, Michael Nolan.  P. Br. at 3-4; P. Ex. 1.  She asked Michael Nolan for the records, but he responded that they’d dissolved the company on March 15, 2019.  Although he claimed to have access to “certain archived records,” he did not produce them.  P. Ex. 2.

CMS has produced billing records that list the patient names, dates of birth, and Medicare beneficiary numbers, along with the dates of service, the ordering provider’s name and NPI – which are Petitioner’s name and NPI.  CMS Ex. 4 at 3.  Petitioner has not claimed that REMN or Michael Nolan appropriated her name and NPI without her knowledge or consent.

Petitioner may have fallen victim to one (of apparently many) questionable DMEPOS arrangements.  See, e.g., Young, DAB No. 2750 at 11; Larona R. Searcy, DAB CR6132 (2022); Angela K. Anderson, DAB CR6124 (2022); Sandra Jackson, DAB CR6122

Page 6

(2022).  Unfortunately, this does not give me the authority to rescind the revocation.  The Departmental Appeals Board has consistently held that an administrative law judge’s review of CMS’s determination to revoke a supplier’s Medicare enrollment is limited to deciding whether CMS has established one or more of the grounds specified in section 424.535(a).  William Garner, M.D., DAB No. 3026 at 16 (2020); Norman Johnson, M.D., DAB No. 2779 at 11 (2017), and cases cited therein.  CMS itself has the discretion to consider “unique or mitigating circumstances in deciding whether, or how, to exercise its revocation authority,” which, based on Petitioner’s representations, might be appropriate here.  However, I may not substitute my discretion for that of CMS in determining whether the revocation is appropriate.  Johnson at 11 (citing Care Pro Home Health, Inc., DAB No. 2723 at 9 n.8 (2016)); Abdul Razzaque Ahmed, M.D., DAB No. 2261 at 19 (2009), aff’d., Ahmed v. Sebelius, 710 F. Supp. 2d 167 (D. Mass. 2010).

I have no authority to review the length of the reenrollment bar.  Vijendra Dave, M.D., DAB No. 2672 at 9-12 (2016); accord, Garner, DAB No. 3026 at 16 (2020); Lilia Gorovits, M.D., P.C., DAB No. 2985 at 15-16 (2020); see 42 C.F.R. § 498.3(b)(17).

Conclusion

CMS has established grounds for revoking Petitioner Yaudes’ Medicare enrollment under section 424.535(a)(10):  she did not comply with the documentation or access requirements of section 424.516(f).  I have no authority to review the reenrollment bar imposed.

I therefore affirm CMS’s determination.

Endnotes