Cristina Tobon-Chung, FNP, DAB CR5848 (2021)

DECISION

Petitioner, Cristina Tobon-Chung, is a nurse practitioner, licensed in Florida, who, until October 10, 2018, participated in the Medicare program as a supplier of services.  The Centers for Medicare & Medicaid Services (CMS) revoked her enrollment, pursuant to 42 C.F.R. § 424.535(a)(7), because she knowingly allowed other suppliers to use her billing number.

Petitioner appeals the revocation.

I find that CMS appropriately revoked Petitioner Tobon-Chung's Medicare enrollment because she allowed other suppliers to bill the program under her billing number.

Background

In a revocation notice, dated September 10, 2018, the Medicare contractor, Noridian Healthcare Solutions, advised Petitioner Tobon-Chung that it revoked her Medicare enrollment, effective October 10, 2018.  The contractor also imposed a three-year reenrollment bar.  As the notice letter explains, the contractor acted pursuant to 42 C.F.R.

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§ 424.535(a)(7), because Petitioner allowed four other nurse practitioners, three of whom were not enrolled in Medicare, to bill the program using her National Provider Identifier (NPI) number.  CMS Ex. 3.

Petitioner requested reconsideration.  CMS Ex. 2; P. Ex. 1.  In a reconsidered determination, dated February 7, 2019, a CMS hearing officer affirmed the revocation, finding that Petitioner knowingly allowed five (not four) nurse practitioners to bill the Medicare program using her NPI.  CMS therefore properly revoked her billing privileges under section 424.535(a)(7).  CMS Ex. 1 at 5.Although five suppliers billed under Petitioner's NPI, one of them was Petitioner herself.

Petitioner again appealed.

Summary judgment.  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 each party to submit the written direct testimony of any proposed witnesses and, if it wished to cross-examine an opposing witness, to state so affirmatively.  Acknowledgment and Pre-hearing Order at 5 (¶¶ 8, 9) (April 11, 2019).  CMS listed no witnesses.  Petitioner listed three witnesses and provided their written direct testimony (P. Exs. 3, 4, 5).  CMS objects to the testimony of Petitioner's witnesses, arguing that it is irrelevant.  In the alternative, CMS asks to cross-examine the witnesses.

In fact, I find that the testimony is relevant.  Petitioner and her witnesses attack an attestation statement that CMS cites (CMS Ex. 4), but, in doing so, they also admit that the substance of that statement is accurate:  she allowed others, with whom she worked, to use her Medicare billing number.  I am authorized to admit testimony and documentary evidence that is relevant and material.  42 C.F.R. § 498.60(b).  Because I find this testimony relevant and material, I admit it.

For reasons that I do not understand, CMS has asked to cross-examine Petitioner's witnesses.  As the following discussion shows, nothing elicited through cross‑examination would change the outcome here, so I deny CMS's request.  I find that an in-person hearing would serve no purpose and that I may decide this case based on the written record without considering whether the standards for summary judgment are met.  See Acknowledgment and Pre-hearing Order at 6 (¶ 10).In the alternative, no material facts are in dispute, and this case could be decided on summary judgment.  See Fal-Meridian, Inc. v. U.S. Dep't of Health & Human Servs., 604 F.3d 445, 449 (7th Cir. 2010) ("All it means for a decision to be based on a grant of summary judgment is that there are no issues that would benefit from being resolved in an evidentiary hearing.").

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CMS has filed a pre-hearing brief and motion for summary judgment (CMS Br.), with five exhibits (CMS Exs. 1-5).  Petitioner filed a pre-hearing brief and response to CMS's motion (P. Br.), with five exhibits (P. Exs. 1-5), including the testimony of her three witnesses.  I admit into evidence CMS Exs. 1-5 and P. Exs. 1-5.  CMS filed a reply.

Discussion

Because Petitioner Tobon-Chung knowingly allowed four other nurse practitioners to bill the Medicare program using her NPI, CMS properly revoked her Medicare enrollment.  42 C.F.R. § 424.535(a)(7).My findings of fact/conclusions of law are set forth, in italics and bold, in the discussion captions of this decision.

CMS regulates the Medicare enrollment of providers and suppliers.  Social Security Act (Act) § 1866(j)(1)(A).  A supplier enrolled in the Medicare program "is prohibited from . . . allowing another individual to use its Medicare billing number."  42 C.F.R. § 424.550(a).  CMS may revoke a supplier's enrollment if the supplier "knowingly sells to or allows another individual to use its billing number."  42 C.F.R. § 424.535(a)(7).  Under section 424.535(a)(7), "a basis for revocation exists whenever a supplier knowingly permits another individual or entity to use its billing number to claim payment for any services."  Kermit E. White, M.D., & Kermit E. White, M.D., P.C., DAB No. 2765 at 7 (2017).

Here, Petitioner concedes that she allowed other nurse practitioners, with whom she worked, to bill the Medicare program using her NPI.  P. Br. at 3  ("Petitioner admits that five [family nurse practitioners] were 'working under her NPI number.'"); see P. Ex. 3 at 1, 2 (Tobon-Chung Decl. ¶¶ 5, 8); P. Ex. 4 at 2 (Chung Decl. ¶ 9); P. Ex. 5 at 2 (Rosas Decl. ¶ 8).  CMS was therefore authorized to revoke her Medicare enrollment and billing privileges.

Petitioner, however, claims that she acted out of ignorance rather than from any intent to defraud the Medicare program.  She characterizes her actions as an "education" issue, rather than fraud.  Notwithstanding section 424.550(a), she maintains that she simply did not know that it was improper to allow others to use her NPI.  Because she acted out of ignorance, she argues, she did not "knowingly" violate the Medicare regulations.  P. Br. at 3-4; P. Ex. 3, passim.

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In support of this, Petitioner points to the results of an audit performed by a Medicare Unified Program Integrity Contractor (UPIC).  P. Ex. 2 at 42, 122-125, 255-261.  According to Petitioner, the "investigation determined that the billing errors were not fraud or abuse, and that this was just a provider education issue."  P. Br. at 4.  There are two problems with this position:  first, that is not what the audit concluded; and, second, even if it were, it is irrelevant.

I did not see a specific audit finding that exonerated Petitioner.The audit documents are buried in the 417-page P. Ex. 2.  Petitioner cites to the exhibit number only, leaving it to the judge to pore through the exhibit in search of the provisions upon which she relies.  Rather, the auditors concluded that, because of improper billing practices from March 3, 2017 through May 4, 2018, the Medicare program overpaid her a total of $784,172.  P. Ex. 2 at 258.  The UPIC also reminded her that she is "charged with knowledge of pertinent coverage requirements for services provided and billing procedures" and "has a duty to familiarize [herself] with the legal requirements for cost reimbursement."  Because she participates in the program, she is "considered to have constructive knowledge of CMS manual instructions, bulletins, contractors' written guides, and directives."  P. Ex. 2 at 260.

Another UPIC notice, dated February 5, 2019, warns Petitioner that action taken pursuant to the audit "does not relieve you of any civil or criminal liability, nor does it offer a defense to any further administrative, civil, or criminal actions against you."  P. Ex. 2 at 261 (emphasis in original).

Moreover, section 424.535(a)(7) does not require a finding of intentional fraud.  That Petitioner knowingly allowed others – including individuals who were not enrolled in the program – to use her NPI justifies the revocation.  Her purported ignorance does not excuse the conduct.  When she enrolled in the program, she promised to abide by Medicare laws, regulations, and program instructions and had a duty to familiarize herself with those requirements.  Gulf South Med.. & Surgical Inst. and Kenner Dermatology Clinic, Inc., DAB No. 2400 at 9 (2011) and cases cited therein.  Thus, even if Petitioner accurately characterized the audit results, they are irrelevant.

Because of her impossibly high billing, a CMS investigator interviewed Petitioner and obtained a written attestation in which she admitted allowing others to use her NPI.  CMS Ex. 4.  Petitioner makes much of the CMS investigator's conduct in obtaining that attestation and maintains that she neither understood nor agreed to its contents.  She claims that the investigator directed her to change the statement "we are 5 FNP [family nurse practitioners] working under my NPI" to "we are 5 FNP billing under my NPI."  CMS Ex. 4 at 1; P. Ex. 3 at 1-2 (Tobon-Chung Decl. ¶ 5).  I do not consider this a substantive change.  Moreover, the attestation also says that the "group work is billed to Medicare under my NPI," and Petitioner has not challenged that statement.  CMS Ex. 4 at

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1; P. Ex. 1 at 11.  Indeed, independent of the attestation, Petitioner concedes that she allowed others to bill, using her NPI.  P. Ex. 3 at 2 (Tobon-Chung Decl. ¶¶ 7, 8).  I therefore find her complaints irrelevant.

Finally, I have no authority to provide equitable relief nor to reduce the length of the enrollment bar.  Cornelius M. Donohue, DPM, DAB No. 2888 at 10 (2018); Mohammad Nawaz, M.D., PA, DAB No. 2687 at 15-16 (2016).

Conclusion

I affirm CMS's determination.  CMS may revoke Petitioner Tobon-Chung's Medicare enrollment because she knowingly allowed others to bill the Medicare program using her NPI, in contravention of 42 C.F.R. § 424.550(a).  42 C.F.R. § 424.535(a)(7).