Senegal Enterprises Medical, Inc., DAB CR5477 (2019)

DECISION

The Centers for Medicare & Medicaid Services (CMS) revoked the supplier number and Medicare billing privileges of Petitioner, Senegal Enterprises Medical, Inc.  Petitioner requested a hearing to challenge its revocation.  I affirm the revocation of Petitioner’s Medicare supplier number and billing privileges based on its failure to comply with Medicare supplier requirements and standards.

I. Background

Petitioner was enrolled in the Medicare program as a supplier of durable medical equipment, prosthetics, orthotics, and supplies (DMEPOS).  CMS Exhibit (Ex.) 3 at 1. Petitioner had a location on file with the National Supplier Clearinghouse“The National Supplier Clearinghouse is the single organizational entity responsible for issuing and revoking Medicare supplier billing privileges for suppliers of [DMEPOS].” National Supplier Clearinghouse MAC, Palmetto GBA, https://www.palmettogba.com/palmetto/providers.nsf/DocsCatHome/Providers~National%20Supplier%20Clearinghouse?Open (last visited Nov. 15, 2019). NSC is an administrative contractor for CMS. (NSC) of 3380 181^st Place, Lansing, Illinois.  See CMS Ex. 3 at 1.  On July 3, 2018, a site inspector

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attempted to conduct a site inspection at Petitioner’s location on file with CMS.  CMS Ex. 2.  The site inspector reported that he was unable to access Petitioner’s facility.  CMS Ex. 2 at 2.

In twin letters dated August 30, 2018, NSC informed Petitioner that it was in violation of supplier standardsDMEPOS suppliers must meet the standards listed in 42 C.F.R. § 424.57(c) in order to maintain their Medicare billing privileges. 42 C.F.R. § 424.57(e). and that its Medicare supplier number would be revoked effective 30 days from the postmark date of the letter.  CMS Ex. 3 at 1, 5.  NSC informed Petitioner that it was not in compliance with the supplier standards at 42 C.F.R. § 424.57(c)(1) (failing to meet licensure requirements in Georgia and Texas), (c)(2) (failing to disclose that it was providing products and services to Medicare beneficiaries in Indiana), (c)(7) (being inaccessible during posted hours of operation), and (c)(26) (not meeting surety bond requirements).  CMS Ex. 3 at 1-2, 5-6.  NSC also notified Petitioner that it would be barred from re-enrolling in the Medicare program for a period of one year from the date of postmark of the letter.  CMS Ex. 3 at 1, 5.  The letters informed Petitioner that it could submit a corrective action plan if it believed it could correct the deficiencies, and that it could also submit a request for reconsideration if it believed the determination was incorrect.  CMS Ex. 3 at 3, 7.

After Petitioner submitted a corrective action plan that NSC received on September 13, 2018 (CMS Ex. 4), a site inspector returned to Petitioner’s facility on September 18, 2018.  CMS Ex. 5 at 3.  At that time, the site inspector observed that Petitioner “is not handicapped accessible.”  CMS Ex. 5 at 2.  The site inspector reported that Petitioner “is not [Americans with Disabilities ActThe Americans with Disabilities Act of 1990 (ADA), Pub. L. No. 101-336, 104 Stat. 327, is codified as amended at 42 U.S.C. chapter 126. compliant as several steps are needed to get to the facility,” and that “the supplier is looking into installing a lift and some pricing documents are attached.”  CMS Ex. 5 at 8.  The site inspector provided photos of one entrance to Petitioner’s office that had five steps.  CMS Ex. 5 at 40-41.  The site inspector also provided a photo of a separate exterior entrance that had four steps.  CMS Ex. 5 at 35.

On October 2, 2018, NSC sent Petitioner a letter stating “that there is no error made in the determination to revoke [Petitioner’s] Medicare billing number,” and NSC explained that Petitioner’s supplier number had been revoked based on 42 C.F.R. §§ 424.535(a)(1) (noncompliance with Medicare requirements), 424.57(c)(1) (requiring suppliers to

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“ensure accessibility for the disabled”), and 424.57(c)(7)(i)(C) (requiring suppliers to be “accessible”).  CMS Ex. 6 at 2-4.  NSC further explained that “the supplier has not provided a verifiable explanation for their noncompliance with 42 [C.F.R.] § 424.535(a)(1)” and that “the supplier has not provided information to show compliance with the accessibility requirement of this standard for handicapped Medicare beneficiaries.”NSC determined that 42 C.F.R. §§ 424.57(c)(2) and (26) were not bases for revocation of Petitioner’s Medicare supplier number.  CMS Ex. 6 at 4.

Petitioner submitted a request for reconsideration dated October 17, 2018, that NSC received on October 25, 2018.  CMS Ex. 7 at 1.  Petitioner explained that it would be installing an eight-foot long portable aluminum ramp “for wheelchair bound patients to visit our facility for business purposes.”  CMS Ex. 7 at 1.  Petitioner projected that the ramp installation would be completed on October 24, 2018.On October 25, 2018, Petitioner sent NSC an email message that included a photograph of the portable ramp. CMS Ex. 8. Because Petitioner’s supplier number had already been revoked at the time Petitioner provided the photograph of the ramp, I need not address whether the installation of the ramp made the facility accessible to disabled persons. However, it is plainly apparent that there would be very little, if not insufficient, room to maneuver a wheelchair onto the ramp, owing to the close proximity of the lower end of the ramp to a wall. CMS Ex. 8 at 3. Further, the eight-foot ramp appears set at a level of incline that could be challenging for users. CMS Ex. 8 at 3. Therefore, the submission of a photograph of the portable ramp, in and of itself, does not demonstrate that Petitioner’s facility was accessible to disabled persons.  CMS Ex. 7 at 1.

On November 26, 2018, an NSC hearing officer issued a reconsidered determination that denied Petitioner’s request for reconsideration.  CMS Ex. 1.  The hearing officer explained the following:

[Petitioner] has two sets of stairs in order to access their facility.  The facility is not handicap accessible as specified in the guidelines for business in the Americans with Disabilities Act (ADA); therefore, this hearing officer concludes the NSC made the correct determination based upon the information on file at the time.

CMS Ex. 1 at 3.  The hearing officer determined that “[Petitioner] has not shown compliance with 42 [C.F.R.] § 424.57(c) and has not provided evidence to show they have complied with the standard for which they were non-compliant; therefore, they cannot be granted access to the Medicare Trust Fund by way of a Medicare supplier number.”  CMS Ex. 1 at 3.

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Petitioner filed a request for hearing before an administrative law judge (ALJ) that was received on January 24, 2019.  On February 1, 2019, ALJ Leslie A. Weyn issued an Acknowledgment and Pre‑Hearing Order (Pre-Hearing Order).This case was reassigned to me on March 8, 2019.  Pursuant to the Pre-Hearing Order, CMS filed a motion for summary judgment and pre-hearing brief (CMS Br.), along with eight proposed exhibits (CMS Exs. 1-8).  Petitioner filed a motion for summary judgment and pre-hearing brief (P. Br.) and two exhibits (P. Exs. 1-2).  Neither party submitted the written direct testimony of any witnesses.

CMS objects to Petitioner’s submission of P. Ex. 1 on the basis that it is irrelevant and was not accompanied by a showing of good cause for its late submission.  That exhibit is composed of two separate independent contractor agreements for individuals who would staff Petitioner’s facility during its hours of operation.  P. Ex. 1 at 5, 10.  These documents are wholly irrelevant because the revocation of Petitioner’s billing privileges was unrelated to its staffing during its posted hours of operation.  Further, these documents are dated September 12, 2018, and therefore, were in existence at the time Petitioner requested reconsideration in October 2018.  Petitioner has not made any showing of good cause to submit this irrelevant evidence for the first time at the hearing level, and therefore, this evidence is inadmissible.  42 C.F.R. § 498.56(e)(2)(ii) (stating that “[i]f the ALJ determines that there was not good cause for submitting the evidence for the first time at the ALJ level, the ALJ must exclude the evidence from the proceeding and may not consider it in reaching a decision”); Care Pro Home Health, Inc., DAB No. 2723 at 11 (2016) (“In enrollment revocation cases, an ALJ must exclude ‘new documentary evidence’ – that is, documentary evidence that a provider did not previously submit to CMS at the reconsideration stage (or earlier) – unless the ALJ determines that ‘the provider or supplier has good cause for submitting the evidence for the first time at the ALJ level.’  42 C.F.R. § 498.56(e)(1).”).

CMS also objects to the admission of P. Ex. 2, which is a March 25, 2019 notice from the United States Treasury informing Petitioner that it has a $1,145.31 debt to the United States Government.  Petitioner cites to this document in support of its argument that it should not have been assessed an overpayment due to its revocation.  P. Br. at 3.  However, an overpayment based on the reimbursement of claims for items or services provided during a period of revocation is not within my jurisdiction.  See 42 C.F.R. § 424.565 (stating that overpayments are processed in accordance with 42 C.F.R. part 405); see also Vijendra Dave, DAB No. 2672 at 12 (2016) (“Medicare . . . payment determinations may be appealed under a separate multi-step administrative appeal process which includes review by [ALJs] in the Office of Medicare Hearing and Appeals . . . Petitioner must use that appeal process to seek relief from CMS’s overpayment 

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determination.”).  Because I have no jurisdiction over the overpayment, P. Ex. 2 is irrelevant and will not be admitted into the evidentiary record.

In the absence of any other objections, I admit CMS Exs. 1-8 into the evidentiary record.  The record is closed, and the matter is ready for a decision on the merits.As an in-person hearing to cross-examine witnesses is not necessary, it is unnecessary to further address CMS’s motion for summary judgment.

II.  Issue

Whether CMS had a legitimate basis for revoking Petitioner’s Medicare billing privileges for failing to comply with 42 C.F.R. §§ 424.57(c)(1)(i) and 424.535(a)(5)(i).

III.  Jurisdiction 

I have jurisdiction to decide this case.  42 C.F.R. §§ 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 AnalysisMy findings of fact and conclusions of law are set forth in bold and italics.

To receive Medicare payments for items furnished to a Medicare beneficiary, a supplier of medical equipment and supplies must have a supplier number issued by the Secretary of Health and Human Services (Secretary).  Social Security Act (Act) § 1834(j)(1)(A); 42 C.F.R. § 424.505.  To obtain and retain its supplier number, a DMEPOS supplier must meet the standards set forth in 42 C.F.R. § 424.57(c), and CMS may revoke its billing privileges if it fails to do so.  42 C.F.R. §§ 424.57(c), (e)(1), 424.535(a)(1).  To receive direct-billing privileges, a DMEPOS supplier must meet and maintain each of the supplier enrollment standards, including the requirement to maintain a physical location that is accessible to the public.  42 C.F.R. § 424.57(c)(7)(i)(C).  To that end, a supplier “must certify in its application for billing privileges that it meets and will continue to meet” the certification standards that it will comply with “Federal regulatory requirements that specify requirements for the provision of DMEPOS and ensure accessibility for the disabled.”  42 C.F.R. § 424.57(c)(1)(i).  CMS may revoke a currently enrolled DMEPOS supplier’s Medicare enrollment and billing privileges if CMS determines upon on-site review or other reliable evidence that the supplier fails to satisfy any of the Medicare enrollment requirements.  42 C.F.R. § 424.535(a)(5)(ii).  After a DMEPOS supplier’s Medicare enrollment and billing privileges are revoked, it is barred

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from re-enrolling in the Medicare program for a period of one to three years.  42 C.F.R. § 424.535(c).I apply the version of the regulation that was in effect at the time of the revocation. See 84 Fed. Reg. 47,794, 47,794, 47,854-56 (Sept. 10, 2019) (amending 42 C.F.R. § 424.535(c)).

1. Petitioner’s location at 3380 181^st Place, Suite 103, in Lansing, Illinois, was not accessible to disabled persons when a site inspector attempted to conduct a site inspection on September 18, 2018.

On September 18, 2018, a site inspector visited Petitioner’s facility at 3380 181^st Place in Lansing, Illinois, and observed that Petitioner was “not ADA compliant as several steps are needed to get to the facility.”Petitioner’s location was not open and staffed at a previous site inspector visit on July 3, 2018. CMS Ex. 2 at 2. CMS Ex. 5 at 8.  The site inspector determined that Petitioner “is not handicapped accessible.”  CMS Ex. 5 at 2.  The photographs provided by the site inspector show that in order to access Petitioner’s facility, a visitor must traverse five upward steps or four downward steps, without the benefit of an ADA-compliant ramp, wheelchair lift, or elevator.  CMS Ex. 5 at 35, 40-41.

Petitioner has not established that it was accessible to disabled persons at the time of the site visit.  Although Petitioner submitted evidence that it installed a “portable 8’ Aluminum Wheelchair Ramp for wheelchair bound patients to visit [its] facility for business purposes” on or about October 24, 2018, it was not in compliance with Medicare supplier requirements at the time of the September 18, 2018 site visit.  CMS Ex. 7 at 1; see CMS Ex. 8 at 3.

1. CMS had a legitimate basis to revoke Petitioner’s Medicare billing privileges pursuant to 42 C.F.R. § 424.535(a)(1) because Petitioner was not accessible to disabled persons, as required by 42 C.F.R. § 424.57(c)(1)(i).
2. The effective date of Petitioner’s revocation is September 29, 2018, and Petitioner is subject to a one-year re-enrollment bar.

A DMEPOS supplier must “ensure accessibility for the disabled.”  42 C.F.R. § 424.57(c)(1)(i).  CMS may perform periodic site visits to determine whether the supplier is in compliance with Medicare enrollment requirements.  42 C.F.R. §§ 424.510(d)(8), 424.515(c), 424.517(a).

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The facts in this case establish that Petitioner’s location was not accessible to disabled persons, particularly those who use a wheelchair for mobility, at the time of the site inspection on September 18, 2018.  See CMS Ex. 5 at 8, 35, 40-41.  Specifically, visitors to Petitioner’s facility would need to use one of two sets of stairs to enter the facility, and there was no ADA-compliant wheelchair lift, ramp, or elevator available.  Petitioner has not disputed that it was not accessible to disabled persons.  CMS Ex. 7 at 1 (“In response to the above standard, [Petitioner’s] office space will be handicapped accessible to Medicare beneficiaries who may require a walker or wheelchair assistance . . . [and] will be installing a portable 8’ Aluminum Wheelchair Ramp for wheelchair bound patients to visit our facility for business purposes.”).  The undisputed evidence establishes that Petitioner’s facility was not accessible to disabled persons, and CMS properly revoked Petitioner’s Medicare billing privileges.  42 C.F.R. §§ 424.57(c)(1)(i), 424.535(a)(5). 

The effective date of Petitioner’s revocation is September 29, 2018.  CMS Ex. 1 at 3 (stating that Petitioner’s revocation is effective 30 days from the August 30, 2018 postmark date of the notice of revocation); see 42 C.F.R. § 424.57(e)(1).  Further, Petitioner was subject to a one-year re-enrollment bar (CMS Ex. 3 at 1, 5), which is not reviewable.  Vijendra Dave, M.D., DAB No. 2672 at 1.

Further, to the extent Petitioner seeks relief based on principles of equitable relief, I cannot grant such relief.  US Ultrasound, DAB No. 2302 at 8 (2010) (“Neither the ALJ nor the Board is authorized to provide equitable relief by reimbursing or enrolling a supplier who does not meet statutory or regulatory requirements.”).  Petitioner points to no authority by which I may grant it relief from the applicable regulatory requirements, and I have no authority to declare statutes or regulations invalid or ultra vires.  1866ICPayday.com, L.L.C., DAB No. 2289 at 14 (2009) (“An ALJ is bound by applicable laws and regulations and may not invalidate either a law or regulation on any ground.”).

V.  Conclusion

I affirm the revocation of Petitioner’s DMEPOS supplier number and Medicare billing privileges, effective September 29, 2018, pursuant to 42 C.F.R. §§ 424.57(c)(1)(i) and 424.535(a)(5)(i).