Skyview Home Health Agency, Inc., DAB CR5607 (2020)

DECISION

I affirm the revocation of Medicare enrollment and billing privileges that the Centers for Medicare & Medicaid Services (CMS) imposed on Skyview Home Health Agency, Inc. (Skyview or Petitioner) due to engaging in abuse of billing privileges through a pattern or practice of filing claims that do not meet Medicare requirements.

I.  Background and Procedure History

Skyview was enrolled in the Medicare program as a home health agency (HHA).  In a February 22, 2019 initial determination, CMS revoked Petitioner’s Medicare enrollment and billing privileges, effective March 24, 2019, under 42 C.F.R. § 424.535(a)(8)(ii).  CMS stated that Petitioner engaged in a pattern or practice of submitting claims that failed to have a valid certificate of eligibility for each beneficiary receiving home health services, contrary to billing requirements in 42 C.F.R. § 424.22.  CMS specified:

Dr. Lynn Gibbs is listed as the ordering/certifying physician on fifty-six (56) home health service claims for ten (10) Medicare beneficiaries, submitted by Skyview, with episodes

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of care starting January 21, 2017 and continuing through November 30, 2017.  See Enclosure A for a sample set of ten claims.  Dr. Gibbs reviewed a list of beneficiaries for whom Skyview submitted claims listing Dr. Gibbs as the ordering/certifying physician.  Dr. Gibbs attested that, for all beneficiaries listed, he did not order home health services.  Furthermore, claims data analysis revealed that Dr. Gibbs did not have a prior Part B relationship with those beneficiaries.  Therefore, Dr. Gibbs was not involved in the care, treatment, or monitoring of the beneficiaries whose medical records he reviewed.

CMS Ex. 2 at 1.  CMS also barred Petitioner from re-enrollment in the Medicare program for three years.  CMS Ex. 2 at 2.

Petitioner requested reconsideration of the revocation.  Petitioner stated that its patients were under the care of nurse practitioners and were not being seen by a physician.  Petitioner provided, as an example, that nurse practitioner Agnes Anyalebechi was under the supervision of Dr. Lynn Gibbs.  CMS Ex. 3.

A CMS hearing officer issued an August 6, 2019 reconsidered determination upholding the revocation.  CMS Ex. 6.  The hearing officer stated:

Skyview engaged in a pattern or practice of abusive billing when it, for over 10 months, submitted claims to the Medicare program for payment that failed to meet Medicare requirements.  Skyview submitted claims listing Dr. Gibbs as the ordering/referring physician, when he did not have any prior relationship treating or caring for the Medicare beneficiaries for whom home health services were certified and ordered.  It also submitted these claims based on the order/certification of a nonphysician practitioner NP Anyalebechi.  Skyview submitted 56 noncompliant claims, which establishes a pattern of abusive billing.

CMS Ex. 6 at 4.

On October 3, 2019, Petitioner timely requested a hearing before an administrative law judge (ALJ).  Petitioner’s hearing request (Hearing Req.) included six supporting documents (Hearing Req. Attach. 1-6).  Petitioner argued that nurse practitioner Anyalebechi and Dr. Gibbs had an agreement by which Ms. Anyalebechi worked under Dr. Gibbs’s supervision, and Ms. Anyalebechi’s clinic, Kindle Clinic, Inc., paid Dr. Gibbs $8,000.

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On October 7, 2019, the Civil Remedies Division (CRD) issued an acknowledgment of Petitioner’s hearing request and my Standing Prehearing Order.  In compliance with the Standing Prehearing Order, CMS filed a prehearing brief and motion for summary judgment (CMS Br.), along with eight exhibits (CMS Exs. 1-8).  Because Petitioner failed to file a prehearing submission, I issued an Order to Show Cause.  Petitioner’s Administrator, Caroline Okpara, filed a response indicating that she had been out of the country, but that Petitioner did not intend to abandon this case.  Ms. Okpara submitted with the response a slightly modified version of the hearing request, which I treat as Petitioner’s brief in this case (P. Br.).

In a February 3, 2020 Order, I directed CMS to submit additional documents that were discussed in the initial and reconsidered determinations concerning the number of claims that were the basis for Petitioner’s alleged pattern or practice of abusive billing, but which were not submitted in this case.  In the alternative, I allowed CMS to specify that it was no longer relying on all of the claims discussed in its determinations to support the revocation.  I gave Petitioner an opportunity to respond and object to any evidence CMS submitted in response to my Order.  I also gave Petitioner the opportunity to submit additional evidence so long as it indicated, as required by the regulations, good cause why Petitioner had not submitted it at an early stage in the appeal process.

CMS submitted CMS Ex. 9 in compliance with my February 3, 2020 Order.  Petitioner filed a response with argument (P. Response), but Petitioner neither objected to CMS Ex. 9, nor submitted additional evidence in response to it.

II.  Decision on the Record

Petitioner did not object to any of CMS’s proposed exhibits; therefore, I admit CMS Exs. 1-9 into the record.  Standing Prehearing Order ¶ 10; CRD Procedures § 14(e).

My Standing Prehearing Order advised the parties that an in-person hearing would only be necessary if a party submitted the written direct testimony of a proposed witness and the opposing party requested an opportunity to cross-examine a witness.  Standing Prehearing Order ¶¶ 11-13; CRD Procedures §§ 16(b), 19(b); see Vandalia Park, DAB No. 1940 (2004); Pac. Regency Arvin, DAB No. 1823 at 8 (2002) (holding that the use of written direct testimony for witnesses is permissible so long as the opposing party has the opportunity to cross-examine those witnesses).  Although neither party submitted any written direct testimony, CMS submitted a 2018 statement written by Dr. Gibbs.  In my February 3, 2020 Order, I stated that there was no need for me to hold an in-person hearing because Petitioner had not requested to cross-examine Dr. Gibbs.  In its response to that Order, Petitioner did not request to cross-examine Dr. Gibbs or otherwise object to this case being decided without an oral hearing.  Therefore, I do not need to hold a hearing in this case and I decide this case based on the written record.  Standing Prehearing Order ¶ 14; CRD Procedures § 19(d).

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III.  Issue

Whether CMS had a legitimate basis for revoking Petitioner’s Medicare enrollment and
billing privileges under 42 C.F.R. § 424.535(a)(8)(ii).

IV.  Jurisdiction

I have jurisdiction to 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).

V.  Findings of Fact

1)  Petitioner was enrolled in the Medicare program as an HHA.  See CMS Ex. 2.

2)  Lynn Gibbs is a physician licensed to practice medicine in Texas and is enrolled in the Medicare program.  CMS Ex. 4 at 1, 4; CMS Ex. 5 at 1-2.

3)  Agnes Anyalebechi is a nurse practitioner licensed to practice in Texas and is enrolled in the Medicare program.  CMS Ex. 4 at 1, 4; CMS Ex. 5 at 3-4.

4)  Ms. Anyalebechi owns and/or works for Kindle Clinic, Inc.  See CMS Ex. 4 at 1.

5)  On January 27, 2016, Dr. Gibbs and Ms. Anyalebechi entered into a Collaborative Practice Agreement that indicated Ms. Anyalebechi’s “Scope of Practice” was:

[T]he diagnosis of illness and physical conditions and the Performance [sic] of therapeutic and corrective measures including prescribing Medications [sic] for patients whose conditions fall within the authorized scope of the practice and as directed by the Dr. Lynn Gibbs MD.  This privilege includes Immunization Program for all ages, weight loss program, Home [sic] health visit, prescribing Schedule drugs as authorized in in [sic] the controlled substances under a DEA number.  The nurse practitioner may also diagnose and treat human responses to actual or potential health problems through such services as case finding, health counseling, health teaching, and provision of care supportive to or restorative of life and well-being.  This practice will take place at Kindle Clinic Inc. or in Home [sic] setting for Face [sic] to face Evaluations [sic] and Home [sic] sick Visit [sic] as agreed by Dr. Lynn Gibbs MD or by the parties of this contract.

CMS Ex. 4 at 1, 4.

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6)  The Collaborative Agreement has a provision on Practice Protocols; however, that provision is missing several lines of text.  It does indicate, in a sentence fragment, that “the collaborating physician’s opinion will prevail.”  CMS Ex. 4 at 1.

7)  Dr. Gibbs and Ms. Anyalebechi agreed that the Collaborative Agreement would become effective on February 1, 2016, and that Kindle Clinic, Inc. would pay Dr. Gibbs $1,000 per month for the 12-month period from February 2016 to January 2017.  CMS Ex. 4 at 1, 3-4.

8)  On February 1, 2016, Dr. Gibbs authorized Ms. Anyalebechi “to sign all Home Health orders on my behalf as his supervising physician.”  CMS Ex. 4 at 2.

9)  On April 26, 2018, investigators from Qlarant, a CMS program integrity contractor, met with Dr. Gibbs and asked him to review a list of 58 HHAs who listed Dr. Gibbs as the referring/attending physician for their patients.  Dr. Gibbs stated in response:

After reviewing the home health provider names, I informed Qlarant I did not know any of the names nor had any dealings with them.  I do refer beneficiaries for home health about one a month and possibly ten a year.  I also requested for Qlarant to place an auto deny edit on my [National Provider Identifier] so home health agencies cannot use it to bill for home health services.

CMS Ex. 1 at 3.

10)Included in Dr. Gibbs’s review were claims filed by Petitioner.  CMS Ex. 1 at 1.

11) Dr. Gibbs signed his statement with the following certification:  “I certify that I have thoroughly reviewed and understand all the information contained in this statement.  I also certify that this is a true and accurate statement that I made freely and voluntarily without any threats or promises, express or implied.”  CMS Ex. 1 at 1, 3.

Beneficiary W.D.1

12) From May 3, 2017 to November 27, 2017, Petitioner submitted eight claims to CMS for home health services provided to Beneficiary W.D. from February 17, 2017 to October 14, 2017.  CMS Ex. 9 at 1.

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13)A signature purporting to be that of Lynn Gibbs, M.D. appears on a Home Health Certification and Plan of Care form (CMS-485) and an Addendum to Plan of Treatment form (CMS-487) for W.D.  CMS Ex. 8 at 7-9.

14)Dr. Gibbs certified “neither myself, or anyone associated with my office, has acted as the referring or attending physician for” W.D. in relation to Petitioner’s claims for services from April 18, 2017 to October 14, 2017.  CMS Ex. 1 at 1.

Beneficiary M.S.

15)Petitioner submitted two claims to CMS for home health services, one on February 16, 2017, and the other on May 8, 2017, for services provided to Beneficiary M.S. from January 21, 2017 to March 21, 2017.  CMS Ex. 9 at 1.

16)Dr. Gibbs certified “neither myself, or anyone associated with my office, has acted as the referring or attending physician for” M.S. in relation to Petitioner’s claims for services from January 21, 2017 to March 21, 2017.  CMS Ex. 1 at 1.

Beneficiary A.H.

17)From March 24, 2017 to January 4, 2018, Petitioner submitted eight claims to CMS for home health services provided to Beneficiary A.H. from March 16, 2017 to November 10, 2017.  CMS Ex. 9 at 1.

18)A signature purporting to be that of Lynn Gibbs, M.D. appears on two Home Health Certification and Plan of Care forms (CMS-485) and an Addendum to Plan of Treatment form (CMS-487) for A.H.  CMS Ex. 8 at 14-17.

19)Dr. Gibbs certified “neither myself, or anyone associated with my office, has acted as the referring or attending physician for” A.H. in relation to Petitioner’s claims for services from March 16, 2017 to November 10, 2017.  CMS Ex. 1 at 1.

Beneficiary M.F.

20)From March 2, 2017 to December 20, 2017, Petitioner submitted ten claims to CMS for home health services provided to Beneficiary M.F. from February 25, 2017 to October 28, 2017.  CMS Ex. 9 at 1-2.

21)A signature purporting to be that of Lynn Gibbs, M.D. appears on a Home Health Certification and Plan of Care form (CMS-485) and an Addendum to Plan of Treatment form (CMS-487) for M.F.  CMS Ex. 8 at 19-20.

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22)Dr. Gibbs certified “neither myself, or anyone associated with my office, has acted as the referring or attending physician for” M.F. in relation to Petitioner’s claims for services from April 26, 2017 to October 22, 2017.  CMS Ex. 1 at 1.

Beneficiary E.G.

23)From August 8, 2017 to December 1, 2017, Petitioner submitted four claims to CMS for home health services provided to Beneficiary E.G. from August 3, 2017 to November 30, 2017.  CMS Ex. 9 at 2.

24)A signature purporting to be that of Lynn Gibbs, M.D. appears on an Addendum to Plan of Treatment form (CMS-487) for E.G.  CMS Ex. 8 at 18.

25)Dr. Gibbs certified “neither myself, or anyone associated with my office, has acted as the referring or attending physician for” E.G. relating to Petitioner’s claims for services from August 3, 2017 to November 30, 2017.  CMS Ex. 1 at 1.

Beneficiary D.R.

26)From March 6, 2017 to October 25, 2017, Petitioner submitted six claims to CMS for home health services provided to Beneficiary D.R. from March 1, 2017 to August 3, 2017.  CMS Ex. 9 at 2.

27)A signature purporting to be that of Lynn Gibbs, M.D. appears on a Home Health Certification and Plan of Care form (CMS-485) and an Addendum to Plan of Treatment form (CMS-487) for D.R.  CMS Ex. 8 at 4-6.

28)Dr. Gibbs certified “neither myself, or anyone associated with my office, has acted as the referring or attending physician for” D.R. relating to Petitioner’s claims for services from April 30, 2017 to August 3, 2017.  CMS Ex. 1 at 1.

Beneficiary E.W.

29)From April 14, 2017 to October 20, 2017, Petitioner submitted four claims to CMS for home health services provided to Beneficiary E.W. from April 7, 2017 to June 6, 2017.  CMS Ex. 9 at 2.

30)Dr. Gibbs certified “neither myself, or anyone associated with my office, has acted as the referring or attending physician for” E.W. relating to Petitioner’s claims for services from April 7, 2014 to June 6, 2017.  CMS Ex. 1 at 1.

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Beneficiary N.F.

31)Petitioner submitted two claims to CMS for home health services, one on July 27, 2018, and the other on October 25, 2017, for services provided to Beneficiary N.F. from July 26, 2017 to September 15, 2017.  CMS Ex. 9 at 2.

32)A signature purporting to be that of Lynn Gibbs, M.D. appears on a Home Health Certification and Plan of Care form (CMS-485) and two Addendum to Plan of Treatment forms (CMS-487) for N.F.  CMS Ex. 8 at 10-13.

33)Dr. Gibbs certified “neither myself, or anyone associated with my office, has acted as the referring or attending physician for” N.F. relating to Petitioner’s claims for services from July 26, 2017 to September 15, 2017.  CMS Ex. 1 at 1.

Beneficiary B.G.

34)From May 18, 2017 to December 20, 2017, Petitioner submitted eight claims to CMS for home health services provided to Beneficiary B.G. from February 25, 2017 to October 22, 2017.  CMS Ex. 9 at 2.

35)A signature purporting to be that of Lynn Gibbs, M.D. appears on a Home Health Certification and Plan of Care form (CMS-485) and an Addendum to Plan of Treatment form (CMS-487) for B.G.  CMS Ex. 8 at 1-3.

36)Dr. Gibbs certified “neither myself, or anyone associated with my office, has acted as the referring or attending physician for” B.G. relating to Petitioner’s claims for services from April 26, 2017 to October 22, 2017.  CMS Ex. 1 at 1.

Beneficiary R.W.

37) From February 28, 2017 to June 26, 2017, Petitioner submitted four claims to CMS for home health services provided to Beneficiary R.W. from February 25, 2017 to June 24, 2017.  CMS Ex. 9 at 2.

38)Dr. Gibbs certified “neither myself, or anyone associated with my office, has acted as the referring or attending physician for” R.W. relating to Petitioner’s claims for services from April 26, 2017 to June 24, 2017.  CMS Ex. 1 at 1.

VI.  Conclusions of Law and Analysis

My conclusions of law appear in bold and italics.  I cite and quote from the version of the Code of Federal Regulations in effect at the time when Petitioner billed Medicare for the services in question in this case.

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The Social Security Act (Act) authorizes the Secretary of Health and Human Services (Secretary) to establish regulations for enrolling providers and suppliers in the Medicare program.  42 U.S.C. § 1395cc(j)(1)(A).  The Secretary’s regulations specify that providers and suppliers must enroll in the Medicare program in order to file claims and receive payment for services rendered to Medicare beneficiaries.  42 C.F.R. § 424.505.

Once enrolled, the Secretary’s regulations delegate to CMS the authority to revoke the enrollment and billing privileges of providers.  42 C.F.R. § 424.535.  CMS or a Medicare contractor may revoke a provider’s Medicare enrollment and billing privileges for any of the reasons listed in 42 C.F.R. § 424.535(a).  42 C.F.R. §§ 405.800(b)(1), 424.535(a).  If CMS revokes a provider’s Medicare enrollment and billing privileges, the revocation becomes effective 30 days after CMS or one of its contractors mails the revocation notice to the provider, subject to some exceptions not applicable in this case.  42 C.F.R. §§ 405.800(b)(2), 424.535(g).  After CMS revokes a provider’s enrollment and billing privileges, CMS bars the provider from reenrolling in the Medicare program.  Under the regulations in effect at the time of the initial determination, CMS could impose a reenrollment bar for a minimum of one year, but no more than three years.  42 C.F.R. § 424.535(c).

Relevant to the present case, CMS may revoke a provider or supplier’s enrollment for abuse of billing privileges under 42 C.F.R. § 424.535(a)(8)(ii) when:

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.

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1) Petitioner filed Medicare claims for home health services even though a physician had not certified and/or recertified that the beneficiaries were confined to the home and in need of those services in violation of the requirements in 42 U.S.C. §§ 1395f(a)(2)(C) and/or 1395n(a)(2)(A) and 42 C.F.R. § 424.22.

The Act specifies that an HHA is a “provider of services” in the Medicare program.  42 U.S.C. § 1395x(u).  Further, the Act defines “home health services” as “items and services furnished to an individual, who is under the care of a physician . . . under a plan (for furnishing such items and services to such individual) established and periodically reviewed by a physician . . . .”  42 U.S.C. § 1395x(m).

Payment for home health services is only allowed if:

[A] physician . . . certifies (and recertifies, where such services are furnished over a period of time . . .) that . . . home health services . . . are or were required because the individual is or was confined to his home . . . and needs or needed skilled nursing care . . . on an intermittent basis or physical or speech therapy or . . . continues or continued to need occupational therapy; a plan for furnishing such services to such individual has been established and is periodically reviewed by a physician; such services are or were furnished while the individual was under the care of a physician, and . . . prior to making such certification the physician must document that the physician himself or herself, or a nurse practitioner . . . who is working in collaboration with the physician in accordance with State law . . . has had a face-to-face encounter . . . with the individual within a reasonable timeframe as determined by the Secretary. 

42 U.S.C. § 1395f(a)(2), (a)(2)(C); see 42 U.S.C. § 1395n(a)(2)(A); 42 C.F.R. § 424.22.

The Secretary’s implementing regulations specified that an HHA must obtain the physician’s certification of the need for home health services at the time the plan of care is established or as soon thereafter as possible, and the certification “must be signed and dated by the physician who establishes the plan.”  42 C.F.R. § 424.22(a)(2).  “Documentation in the certifying physician’s medical records and/or the acute/post-acute care facility’s medical records (if the patient was directly admitted to home health) shall be used as the basis for certification of home health eligibility.  This documentation shall be provided upon request to the home health agency . . . .”  42 C.F.R. § 424.22(c).  Further, recertification must occur at least every 60 days when there is a need for continuous home health care and “[r]ecertification should occur at the time the plan of

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care is reviewed, and must be signed and dated by the physician who reviews the plan of care.”  42 C.F.R. § 424.22(b)(1).

One of the conditions for HHA participation in the Medicare program further reinforces the importance of the involvement of a physician in ordering and monitoring beneficiaries while home health services are provided.  HHAs provide care that “follows a written plan of care established and periodically reviewed by a doctor of medicine, osteopathy, or podiatric medicine.”  42 C.F.R. § 484.18.  If a physician refers a patient to an HHA under a plan of care that cannot be completed until after an evaluation visit the HHA staff consults the physician to approve additions or modifications to the original plan of care.  42 C.F.R. § 484.18(a).  Further, “[t]he total plan of care is reviewed by the attending physician and HHA personnel as often as the severity of the patient’s condition requires, but at least once every 60 days . . . .  Agency professional staff promptly alert the physician to any changes that suggest a need to alter the plan of care.”  42 C.F.R. § 484.18(b).  Finally, “[d]rugs and treatments are administered by [HHA] staff only as ordered by the physician . . . .”  42 C.F.R. § 484.18(c).

In regard to claims for home health services, the HHA must identify the certifying physician by his or her legal name, identify the certifying physician by his or her national provider identifier, and the certifying physician must be enrolled in the Medicare program, or have validly opted-out of the Medicare program.  42 C.F.R. § 424.507(b)(1).  A failure to meet these requirements results in the denial of the claim for home health services.  42 C.F.R. § 424.507(c).  Further, CMS will not pay for home health services “[i]f the documentation used as a basis for certification of eligibility is not sufficient to demonstrate that the patient is or was eligible to receive services under the Medicare home health benefit . . . .”   42 C.F.R. § 424.22(c).  Finally, if CMS denies a claim for home health services, but CMS would have allowed the claim if the HHA “[h]ad in its files the required certification and recertification by a physician relating to the services furnished to the beneficiary,” then the HHA cannot charge the beneficiary for the services the HHA provided.  42 C.F.R. § 489.21(b)(1).

The Act and regulations are clear that a physician needs to be directly involved in the certification and recertification for home health service, as well as at various times throughout the home health service period.

In the present case, CMS asserts that Petitioner filed claims involving ten Medicare beneficiaries who were not under the care of a physician and, that while the certifications and re-certifications for home health services appear to bear Dr. Gibbs’s signatures, they were not in fact signed by him.  CMS posits that Ms. Anyalebechi signed Dr. Gibbs’s name to those certifications and re-certifications.  CMS argues that a comparison of Dr. Gibbs’s signature on the practice agreement (CMS Ex. 4 at 2) with the signature on the certifications and re-certifications submitted by Petitioner (CMS Ex. 8) shows that they do not match.  CMS Br. at 6-7.

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Petitioner argues that it submitted home health certifications/care plans “duly signed by Dr. Lynn Gibbs,” which show “that Ms. Anyalebechi indeed worked closely with Dr. Lynn Gibbs under their signed Collaborative agreement.”  Petitioner asserts that “we were well informed that Dr. Lynn Gibbs, in fact, did actually see these patients on initial visits, and signed face to face encounters.”  P. Br. at 2.  Further, Petitioner states that the evidence shows that Dr. Gibbs and Ms. Anyalebechi had a collaborative agreement of medical supervision in effect in 2017, which is consistent with Texas law, so “[t]hese patients were under the care of both Ms. Agnes Anyalebechi, NP and Dr. Lynn Gibbs.”  P. Br. at 3.

I conclude that Dr. Gibbs was not involved in the care of beneficiaries W.D., M.S., A.H., M.F., E.G., D.R., E.W., N.F., B.G., and R.W., and did not sign the certifications for home health services for those beneficiaries.

As an initial matter, of the claims related to the ten beneficiaries who were identified in the reconsidered determination, Petitioner only submitted signed (purportedly by Dr. Gibbs) Home Health Certification and Plan of Care forms (CMS-485) for six of the beneficiaries (i.e., W.D., A.H., M.F., D.R., N.F., and B.G.).2   CMS Ex. 8.  Petitioner did not provide copies of signed certifications for M.S., E.G.,3 E.W., and R.W.  Petitioner, as the HHA that submitted claims for home health services, was responsible for keeping these certifications in its files.  See 42 C.F.R. § 489.21(b)(1).  Therefore, Petitioner submitted no evidence that either Dr. Gibbs or any other physician certified home health services for beneficiaries M.S., E.G., E.W., and R.W.

In addition, CMS submitted a signed statement from Dr. Gibbs in which he explicitly disavowed ordering home health services for any of the ten beneficiaries.4   CMS Ex. 1 at

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1.  I accept Dr. Gibbs’s statement and afford it decisive weight on the issue as to whether Dr. Gibbs certified home health services for any of the ten beneficiaries who are at issue in this case.  I do so because Dr. Gibbs certified that his statements were “true and accurate,” and his signature was witnessed by two investigators from Qlarant.  CMS Ex. 1 at 1-2.  I also do so because Petitioner:  did not object to Dr. Gibbs’s statement (CMS Ex. 1); did not request to cross-examine Dr. Gibbs at a hearing; did not request a subpoena to compel Dr. Gibbs to testify at a hearing; and did not submit the written direct testimony of Ms. Anyalebechi, Petitioner’s Administrator, or any other potential witness to contradict Dr. Gibbs’s statement.  Although Petitioner’s Administrator asserts that Dr. Gibbs signed the certification statements, met with the beneficiaries, and cared for them through Ms. Anyalebechi, these statements were made in pleadings and the Administrator fails to provide evidence for these assertions.

Petitioner makes much of the fact that Ms. Anyalebechi had an agreement that Dr. Gibbs would supervise Ms. Anyalebechi’s practice as a nurse practitioner.  P. Br. at 3-4; Hearing Req. Attach. 6.  However, in the Medicare home health service certification process, the nurse practitioner is limited to conducting a face-to-face encounter with the beneficiary if he or she “is working in accordance with State law and in collaboration with the certifying physician . . . .”5   42 C.F.R. § 424.22(a)(1)(v)(A)(3); Cf. 42 C.F.R. § 410.75(c)(3) (Medicare Part B rules authorizing reimbursement “while working in collaboration with a physician.”).  However, as explained above in detail, only a physician is authorized to certify the need for home health services for Medicare beneficiaries, and this authority cannot be delegated to a nurse practitioner.

CMS asserts that Ms. Anyalebechi signed Dr. Gibbs’s name to the certification forms in this case.  Petitioner only argues that it was “well informed” that Dr. Gibbs signed the certification forms.  P. Br. at 2.  It is possible that Ms. Anyalebechi signed Dr. Gibbs’s name to the certification forms given that she was authorized by Dr. Gibbs to do so.  CMS Ex. 4 at 2.  Notably, during a July 17, 2019 hearing held before another CRD ALJ in a different case, Ms. Anyalebechi testified on cross-examination that she signed Dr. Gibbs’s name to 23 home health certifications that were submitted to CMS.  Infocus Health, LLC, DAB CR5435 at 1-3 (2019); see also K&G Quality Healthcare Service,

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DAB CR5596 at 11 (2020) (finding that Ms. Anyalebechi had received delegations of authority to sign home health certifications on behalf of two physicians).  However, even if Ms. Anyalebechi signed Dr. Gibbs’s name to the certifications in this case, it does not absolve Petitioner of the obligation to ensure that it submits claims that meet Medicare requirements.  Petitioner had access to Dr. Gibbs’s authorization to allow Ms. Anyalebechi to sign his name to home health service certifications, and submitted a copy of it with its hearing request.  See CMS Ex. 4 at 2.  This alone should have caused Petitioner to question the certifications.  See K&G, DAB CR5596 at 11-12.  Further, Petitioner simply needed to check with Dr. Gibbs’s office and confirm that he had signed them, a prudent step given the distinct possibility that Ms. Anyalebechi signed them.  See Infocus Health,DAB CR5435 at 3.  Petitioner, as the provider who submitted claims to Medicare, is responsible for ensuring that the claims are valid under Medicare requirements.  79 Fed. Reg. 72,500, 72,513 (Dec. 5, 2014) (“[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.”).  Further, the plain language of 42 C.F.R. § 424.535(a)(8)(ii) contains no reference to the culpability of the provider or any requirement of fraudulent intent.  79 Fed. Reg. at 72,516, 72,520.  Rather, a provider must exercise sufficient diligence when filing Medicare claims to ensure that they meet all Medicare requirements.

2) Petitioner engaged in a pattern or practice of submitting home health service claims that were not in compliance with Medicare requirements under 42 C.F.R. § 424.535(a)(8)(ii).

In order for CMS to revoke a provider or supplier under 42 C.F.R. § 424.535(a)(8)(ii), it will consider various factors “as appropriate or applicable.”  In the reconsidered determination, CMS considered the length of time (i.e., from January 21, 2017 through November 30, 2017) that Petitioner filed claims that failed to meet Medicare requirements and the high number of claims during that period, 56, to establish a pattern and practice of abusive billing.  CMS also found it disconcerting that Petitioner was aware that a nurse practitioner was signing orders and certifications for home health services on behalf a physician, even though this is not permitted under 42 C.F.R. § 424.22.  CMS Ex. 6 at 4.

Petitioner did not expressly address any of the regulatory factors as to whether it had engaged in a pattern or practice of submitting claims that failed to meet the Medicare requirements listed in 42 C.F.R. § 424.535(a)(8)(ii)(A)-(F).

It is important to note that none of the factors are considered more important than another and all factors need not be considered.

We have decided not to give certain factors greater weight in our § 424.535(a)(8)(ii) determinations than other[s], for the

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importance of each factor may vary based on the particular situation.  We have also decided not to establish a minimum percentage threshold for claim denials; as stated earlier, we need flexibility to address a variety of scenarios.

79 Fed. Reg. at 72,517.

As opposed to a hard threshold, CMS indicated that it would judge cases based on the “specific facts.”  79 Fed. Reg. at 72,519.  It is instructive for this case 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.

In the present matter, the record establishes that Petitioner submitted 56 improper claims during approximately ten and a half months, from February 16, 2017 to January 4, 2018.  CMS Ex. 9.  The length of time involved in this conduct is sufficient to establish that the improper billing spanned over a meaningful period of time.  However, the period of time involved is sufficiently narrow so that 56 instances of improper billing occurred often enough to show a pattern of noncompliant billing, as opposed to “sporadic instances [where] providers and suppliers may submit claims in error . . . .”  79 Fed. Reg. at 72,520.

Further, it is disturbing that Petitioner readily accepted certifications from a nurse practitioner without ever confirming with the physician that he was signing the certifications.  While there are evidentiary limitations that preclude me from conclusively finding that Ms. Anyalebechi signed Dr. Gibbs’s name to the certifications in this case, it is clear that Petitioner relied on and communicated directly with Ms. Anyalebechi and not Dr. Gibbs.  As stated emphatically in the reconsideration request: 

Home health patients UNDER THE CARE OF A NURSE PRACTITIONER, ARE BEING SEEN BY THE NURSE PRACTITIONER AND NOT THE PHYSICIAN. . . .  AND THIS NP was under the professional supervision of a Medical Doctor, and in this case, Dr. Lynn Gibbs.

CMS Ex. 3 at 1 (Emphasis in original).  While nurse practitioners can work in collaboration with a physician, the Secretary’s regulations involving home health services do not contemplate that a nurse practitioner will provide all care to beneficiaries without consulting a “supervising” physician.  As indicated in Dr. Gibbs’s statement, his national provider identifier has been misused by 58 HHAs.  CMS Ex. 1 at 3.  This is astounding.  Clearly, Dr. Gibbs unwisely authorized Ms. Anyalebechi to sign his name to home health service certifications.

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Petitioner knew that Dr. Gibbs was not caring for its patients.  The Medicare Trust Funds must be protected from providers and suppliers who do not ensure that their claims are properly certified by a physician.  CMS correctly determined that there was a pattern and practice of abusive billing privileges in this case and revoked Petitioner’s Medicare enrollment and billing privileges.

3) There is a legitimate basis to revoke Petitioner’s Medicare enrollment and billing privileges under 42 C.F.R. § 424.535(a)(8)(ii).

Based on the foregoing findings of fact and conclusions of law, I conclude that CMS had a legitimate basis to revoke Petitioner’s Medicare enrollment and billing privileges under 42 C.F.R. § 424.535(a)(8)(ii).

VI.  Conclusion

I affirm CMS’s revocation of Petitioner’s Medicare enrollment and billing privileges under 42 C.F.R. § 424.535(a)(8)(ii).

1. I refer to all beneficiaries in this decision by their initials to safeguard their privacy.
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2. Petitioner did not submit any of these documents at the reconsideration stage of appeal.  See CMS Ex. 3; CMS Ex. 6 at 1-2.  Petitioner submitted them with its hearing request, and CMS in turn submitted them as a marked exhibit in this case.  Hearing Req. at 2 (noting that the documents had not been considered at the reconsideration level); Hearing Req. Attach. 3; CMS Ex. 8.  Although CMS’s original list of beneficiaries was missing two of the ten (CMS Ex. 2 at 3), CMS later filed exhibits that provided information for all ten beneficiaries.  CMS Ex. 1 at 1; CMS Ex. 9.  Petitioner had two opportunities to file additional documents related to the beneficiaries, i.e., with its prehearing exchange and in response to my Order instructing CMS to submit missing documents referenced in the reconsidered determination.  Petitioner did not submit any additional documents.
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3. Petitioner only provided an Addendum to Plan of Treatment form (CMS-487) for E.G.
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4. Technically, Dr. Gibbs stated that he did not order home health services for the ten beneficiaries on the dates of services specified in his statement.  For beneficiaries M.S., A.H., E.G., E.W., and N.F., these dates correspond exactly or nearly exactly with the claims identified by CMS as part of the alleged pattern and practice of filing claims that do not meet Medicare requirements.  For the remainder, the dates of service provided by Dr. Gibbs are within the dates of service stated in the claims.  Compare CMS Ex. 1 at 1 with CMS Ex. 9.
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5. Under Texas law, a physician “may delegate to a qualified and properly trained” nurse practitioner certain acts such as prescribing and ordering drugs and devices.  Tex. Occ. Code, Title 3, §§ 157.001, 157.051.  In order to delegate such authority, a physician and nurse practitioner must enter into a prescriptive authority agreement.  Tex. Occ. Code, Title 3, § 157.051.14.
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