Renal Internal Medicine Consultant, P.C., DAB CR5289 (2019)

DECISION

Ramon Duarte, M.D., is a physician, licensed to practice in the State of New Mexico, and Renal Internal Medicine Consultant, P.C. (Petitioner), is the name of his practice.  Until recently, Petitioner participated in the Medicare program.  The Centers for Medicare & Medicaid Services (CMS) has revoked its billing privileges, and Petitioner appeals.

I find that, as of December 31, 2015, the supplier was not operational to furnish Medicare-covered items or services at the practice location it listed in its May 4, 2015 enrollment application.  CMS was therefore authorized to revoke Petitioner’s supplier number.

Background

Until its Medicare supplier number was revoked, effective December 31, 2015, Petitioner participated in the Medicare program.  In a letter dated May 3, 2016, the Medicare contractor, Novitas Solutions, Inc., notified Petitioner that its Medicare supplier number was revoked retroactively, pursuant to 42 C.F.R. § 424.535(a)(5) and 424.535(a)(9).  The

Page 2

letter noted that:  1) on December 31, 2015, a site-visit to 8100 Wyoming Blvd. NE, Suite M4 #338, Albuquerque, New Mexico, confirmed that the supplier was not operational; and 2) the supplier had not notified CMS of a change in its practice location, as required by 42 C.F.R. § 424.516.  CMS Ex. 7.

Petitioner sought reconsideration.  CMS Ex. 8.  In a reconsidered determination, dated July 20, 2016, a contractor hearing specialist affirmed the revocation of Petitioner’s supplier number.  CMS Ex. 6.  Petitioner now appeals that determination pursuant to 42 C.F.R. § 424.545.

Although CMS has moved for summary judgment, I find that this matter may be decided on the written record, without considering whether the standards for summary judgment are satisfied.  In my initial order, I instructed the parties to list their proposed witnesses (if any) and to submit their written direct testimony.  Acknowledgment and Pre-hearing Order (Order) at 2-3, 4 (¶¶ 4, 8) (Oct. 3, 2016).  I also directed each party to state, affirmatively, whether it intended to cross-examine any proposed witness.  Order at 4-5 (¶ 9).  An in-person hearing is necessary “only if a party files admissible, written direct testimony, and the opposing party asks to cross-examine.”  Order at 5 (¶ 10).  Neither party listed any witnesses.  An in-person hearing would therefore serve no purpose, and I may decide the case based on the written record, without considering whether the standards for summary judgment are satisfied.

With its motion and brief (CMS Br.), CMS submits nine exhibits (CMS Exs. 1-9).  Petitioner responds with a letter (P. Br.) and submits three exhibits (P. Exs. 1-3).

In the absence of any objections, I admit into evidence CMS Exs. 1-9 and P. Exs. 1-3.

Discussion

CMS had the authority to revoke the supplier’s billing privileges because the medical practice was not operational at the practice location it listed on its enrollment application.I make this one finding of fact/conclusion of law. Because I uphold CMS’s decision to revoke pursuant to 42 C.F.R. § 424.535(a)(5), I need not address revocation pursuant to 42 C.F.R. § 424.535(a)(9).

Program requirements.  To obtain billing privileges and receive Medicare payments for items furnished to a Medicare-eligible beneficiary, a supplier, such as Petitioner, must be enrolled in the Medicare program and must have a supplier number issued by the Secretary of Health and Human Services.  Social Security Act § 1834(j)(1)(A); 42 C.F.R. § 424.505.  To keep that number, the supplier must be operational and must meet the standards set forth in 42 C.F.R. § 424.57(c).  CMS may revoke the supplier’s billing

Page 3

privileges if it fails to do so.  42 C.F.R. § 424.57(c)(1) and (d); 42 C.F.R. § 424.535(a)(1), (5).

To be operational, the supplier must, among other requirements, have a qualified physical practice location, be open to the public, and be properly staffed, equipped, and stocked to furnish items and services.  42 C.F.R. § 424.502.  As the Departmental Appeals Board has held, repeatedly, a supplier must be operational at the practice location listed on its enrollment application.  Wendell Foo, M.D., DAB No. 2904 at 2, 21 (2018); Jason R. Bailey, M.D., P.A., DAB No. 2855 at 10 (2018).

If the supplier is not operational, its revocation takes effect on the date CMS determines it was no longer operational.  42 C.F.R. § 424.535(g).

Petitioner’s enrollment application and the site investigation.  In its enrollment application, received May 4, 2015, Petitioner listed, as its primary practice location, 8100 Wyoming Blvd. NE, Suite M4 #338, Albuquerque, New Mexico.  CMS Ex. 1 at 2, 19.  The application form unambiguously instructs the applicant to disclose the address for each location “where you render services to Medicare beneficiaries. . . .  Each practice location must be a specific street address as recorded by the United States Postal Service.  Do not report a P.O. Box.”  CMS Ex. 1 at 18 (emphasis added).  The application also includes specific instructions for physicians who render services only in patients’ homes (provide your home address and explain) and for those who render services in hospitals, health care facilities, retirement or assisted living communities (furnish the names and addresses of those institutions).  CMS Ex. 1 at 18.

On December 31, 2015, an investigator working for the Medicare contractor visited the address Petitioner listed on its application and discovered that it was not a medical practice location, but a mail box inside a UPS store.  CMS Ex. 4.

Petitioner concedes that the Wyoming Blvd. address is a UPS store and not a medical practice location, but characterizes its failing to provide an accurate practice address as a “technical error.”  P. Br.  According to Petitioner, it did not intentionally ignore CMS’s enrollment instructions, thought that the address would be sufficient because “it was not an actual post office box,” and Dr. Duarte did not want to disclose a home address.  P. Ex. 1.  Petitioner also complains that it is no longer able to provide services to patients, who are in need of Dr. Duarte’s services.  P. Br.; P. Ex. 3.

The Departmental Appeal Board has soundly and repeatedly rejected these types of arguments, “repeatedly” confirming that “neither [the Board] nor the ALJs have authority to overturn a legally valid agency action on equitable grounds or otherwise grant equitable relief.”  Foo, DAB No. 2904 at 25, citing Foot Specialists of Northridge, DAB No. 2773at 18 (2017).  I may review whether the regulations authorize CMS to revoke Petitioner’s billing privileges.  I may not review its decision-making processes nor its

Page 4

decision to exercise its discretion to revoke.  So long as CMS shows that one of the regulatory bases for revocation exists, I may not refuse to apply the regulation, but must uphold the revocation.  Foo, DAB No. 2904 at 3; Wassim Younes, M.D. & Wassim Younes, M.D. P.L.C., DAB No. 2861 at 8 (2018), citing Patrick Brueggeman, D.P.M., DAB No. 2725 at 15 (2016).

By its own admission, Petitioner was not operational at the practice location it listed on its Medicare application (nor could any supplier of medical services have been).  CMS therefore justifiably revoked its billing privileges under 424.535(a)(5).  December 31, 2015 is the date CMS determined that the practice was no longer operational and is therefore the appropriate revocation date.  42 C.F.R. § 424.535(g).

Conclusion

Because the facility was not operational at the practice location listed on its Medicare application, CMS was authorized to revoke its supplier number.