Kenneth Farrish, D.P.M., DAB CR5098 (2018)

DECISION

Petitioner, Kenneth Farrish, D.P.M., is a podiatrist, practicing in Mississippi, 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, which Petitioner opposes.  Because an in-person hearing would serve no purpose (see below), I decide this case based on the written record rather than on summary judgment.

The parties agree that Petitioner Farrish repeatedly billed the Medicare program for services he could not have provided and, in fact, did not provide.  CMS therefore properly revoked his billing privileges.

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Background

By letter dated February 25, 2015, CMS’s “zone program integrity contractor,” AdvanceMed, advised Petitioner that it found that he may have violated Medicare laws, regulations, and program instructions, which could lead to revocation of his Medicare billing privileges.By statute, CMS is authorized to contract with entities, called “zone program integrity contractors,” to fulfill program integrity functions for the Medicare program.  Social Security Act § 1893; HIPAA § 202.  AdvanceMed is the contractor for Medicare Part B services in Mississippi.  CMS Ex. 1 at 1.  Specifically, AdvanceMed found that, between December 1, 2010 and December 22, 2014, Petitioner Farrish submitted claims for services purportedly provided to Medicare beneficiaries who were deceased on the dates of service.  If he did so, he violated 42 C.F.R. § 424.535(a)(8).  The notice gave Petitioner 21 days to show that he had, in fact, complied with Medicare laws, regulations, and program instructions.  CMS Exhibit (Ex.) 1.  The notice included a list of sixteen Medicare beneficiaries whom AdvanceMed identified as deceased on the dates of service, along with the billed dates of service (one per beneficiary) and the dates of the beneficiaries’ deaths.  CMS Ex. 1 at 3.

Petitioner did not respond.  Although the notice was addressed to him, his (then) employer apparently intercepted it and did not tell him about it.  Petitioner Brief (P. Br.) at 4.

In a letter dated March 27, 2015, the Medicare contractor, Novitas Solutions, advised Petitioner Farrish that his Medicare billing privileges were revoked, effective April 25, 2015.  The contractor took this action pursuant to 42 C.F.R. § 424.535(a)(8) because it found that Petitioner had submitted multiple claims for services rendered to beneficiaries who were deceased on the purported dates of service.  Pursuant to 42 C.F.R. § 424.535(c), the contractor also imposed a three-year re-enrollment bar.  CMS Ex. 3.

In response, Petitioner submitted a corrective action plan, which CMS treated as a request for reconsideration.  CMS Ex. 4.In error, the contractor’s first notice letter advised Petitioner that he could submit a corrective action plan.  CMS Ex. 2 at 1.  Suppliers may submit corrective action plans only for revocations brought under 42 C.F.R. § 424.535(a)(1) (which authorizes revocation based on the supplier’s noncompliance with enrollment requirements).  42 C.F.R. § 405.809(a)(1).  The contractor corrected that notice error by submitting a corrected letter (CMS Ex. 3) and by treating Petitioner’s submission as a request for reconsideration.  See CMS Ex. 5. In a reconsidered determination, dated May 27, 2015, CMS found that Petitioner had submitted 49 claims for deceased beneficiaries, and it upheld the revocation.  CMS Ex. 6.

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Petitioner appealed, and his appeal was assigned to me (Docket No. C-15-3404).  CMS Ex. 7 at 15; see CMS Ex. 7 at 17-22.  With Petitioner’s agreement, CMS asked that I remand the case “for additional review . . . by CMS.”  CMS Ex. 7 at 24.  In an order dated August 26, 2015, I remanded the matter and dismissed the appeal.  CMS Ex. 7 at 8‑9.

In a revised reconsidered determination, dated January 29, 2016, CMS affirmed its earlier determination.  CMS Ex. 8.

Petitioner again appealed, and the matter is back before me.

CMS has filed a pre-hearing brief and motion for summary judgment.  With its motion and brief, CMS submits eight exhibits (CMS Exs. 1-8).  Petitioner submitted a pre-hearing brief and response to CMS’s motion for summary judgment, accompanied by nine exhibits (P. Exs. 1-9).

In the absence of any objection, I admit into evidence CMS Exs. 1-8 and P. Exs. 1-9.

CMS is more than likely entitled to summary judgment because the parties agree that Petitioner billed Medicare for services that he could not have provided inasmuch as the beneficiaries died before the service dates.  CMS is therefore entitled to judgment as a matter of law.  But I need not consider whether the standards for summary judgment are met here.  My pre-hearing order directs the parties to list their witnesses and provide the written direct testimony of any proposed witness.  Each party must state affirmatively whether it wants to cross-examine an opposing witness.  Acknowledgment and Pre-hearing Order at 3, 5 (¶¶ 4(c)(iv), 8-10) (April 1, 2016)).  CMS has no witnesses.  Petitioner lists himself as his sole witness, and CMS has not asked to cross-examine him.  Thus, an in-person hearing would serve no purpose, and the case may be decided based on the written record.

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).  I have no authority to review the length of the re-enrollment bar imposed by CMS.I make this one finding of fact/conclusion of law.

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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 “[w]here the beneficiary is deceased.”  42 C.F.R. § 424.535(a)(8).Currently 42 C.F.R. § 424.535(a)(8)(i)(A).  See 79 Fed. Reg. 72107, 72532 (December 5, 2014).  If a supplier’s billing privileges have been revoked, CMS must bar its 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).

The erroneous billing.  Petitioner Farrish is a podiatrist, practicing in Mississippi, who was employed by an organization called Sole Connection.  P. Ex. 1 at 1 (Farrish Decl.).  The parties agree that he, or his employer, on his behalf, billed the Medicare program for services he could not have provided because the beneficiaries were dead on the billed dates of service.  P. Br. at 1 (“Dr. Farrish does not dispute the validity of the claims at issue.”).

CMS maintains that, between December 1, 2010, and December 22, 2014, Petitioner submitted claims for services ostensibly provided to 49 beneficiaries who were dead on the dates of service.  CMS Ex. 8 at 2.  Petitioner complains that CMS has apprised him of only 16 claims.  P. Br. at 11.  I find evidence of 39 unique claims for services that could not have been provided to 16 deceased beneficiaries.  CMS Ex. 3 at 3-4; see CMS Ex. 7 at 49.  CMS has neither provided evidence of the additional claims nor otherwise explained them.

Nevertheless, 16 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) (authorizing revocation if the supplier submits “a claim or claims for services that could not have been furnished . . .”) (emphasis added).  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. 36448, 36455 (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 prior employer, Sole Connection, whose sloppy billing practices caused the improper billing.  Yet he recognizes that he is ultimately responsible for the Medicare claims submitted on his behalf and concedes that, based on the 16 claims, CMS may revoke his enrollment and impose a one-year re-enrollment bar.  See Shimko at 6;

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Howard B. Reife, D.P.M., DAB No. 2527 at 8 (2013).  He challenges CMS’s adding two years beyond the regulatory minimum, arguing that, in setting the three-year bar, CMS did not follow the appropriate protocol and did not properly consider the manual criteria for determining the length of the debarment.

I have no authority to review the length of the re-enrollment bar imposed by CMS.  Vijendra Dave, M.D., DAB No. 2672 at 9-12 (2016).  I am authorized to review initial determinations “to deny or revoke a provider or supplier’s Medicare enrollment in accordance with . . . § 424.535.”  42 C.F.R. § 498.3(b)(17).  As the Board observed in Vijendra Dave, the regulations confer no such right to appeal CMS’s decision concerning the duration of a post-revocation re-enrollment bar.  DAB No. 2672 at 10.

Conclusion

The evidence establishes that Petitioner Farrish, through his employer, 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.