Robin Snead, M.D., DAB CR5909 (2021)

DECISION

Petitioner, Robin Snead, M.D., is an Illinois physician who participated in the Medicare program until February 6, 2019, when the Centers for Medicare & Medicaid Services (CMS) revoked her enrollment, citing 42 C.F.R. §§ 424.535(a)(8) and 424.535(a)(9).  CMS took this action because Petitioner continued to bill the Medicare program for services provided while her medical license was suspended and because she did not report the suspension to the Medicare contractor.

Petitioner now appeals the revocation.

I find that, pursuant to 42 C.F.R. §§ 424.535(a)(8) and 424.535(a)(9), CMS appropriately revoked Petitioner Snead's Medicare enrollment.  She abused her billing privileges by submitting claims for services provided while her license was suspended, and she did not notify the contractor that her medical license had been suspended.

Background

In a revocation notice, dated January 7, 2019, the Medicare contractor, National Government Services, advised Petitioner Snead that it revoked her Medicare enrollment,

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effective February 6, 2019.  The contractor also imposed a three-year enrollment bar.  As the notice letter explains, the contractor acted pursuant to 42 C.F.R. § 424.535(a)(8) because Petitioner submitted claims for services provided during the time of her license suspension.  The contractor also acted pursuant to 42 C.F.R. § 424.535(a)(9) because Petitioner did not report the license suspension.  CMS Ex. 3.

Petitioner requested reconsideration.  CMS Ex. 4.  In a reconsidered determination, dated April 29, 2019, a CMS hearing officer found that, during the period of her license suspension – September 28 to October 11, 2018 – claims were submitted to the Medicare program on her behalf, listing her as the physician who provided the services.  CMS therefore determined that she had a practice of submitting claims that did not meet Medicare requirements and that the contractor properly revoked her Medicare participation pursuant to section 424.535(a)(8)(ii) because she had abused her billing privileges.  CMS Ex. 5 at 4-6.

The hearing officer also found that Petitioner had not, within 30 days, reported the license suspension to her Medicare contractor, as required by section 424.535(a)(9).  CMS Ex. 5 at 6.

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) (May 29, 2019).  CMS listed no witnesses.  Petitioner listed two witnesses, herself and her billing contractor, and provided their written direct testimony (P. Exs. 1, 2).  However, CMS has not asked to cross-examine Petitioner's witnesses.  An in-person hearing would therefore serve no purpose, and I may decide this case based on the written record.  See Acknowledgment and Pre-hearing Order at 6 (¶ 10).

CMS has filed a brief and motion for summary judgment (CMS Br.), with five exhibits (CMS Exs. 1-5).  Petitioner filed her own brief and response to CMS's motion (P. Br.), with two exhibits (P. Exs. 1-2).  In the absence of any objections, I admit into evidence CMS Exs. 1-5 and P. Exs. 1-2.

Discussion

1.  Because Petitioner Snead submitted to the Medicare contractor claims for services she rendered when her medical license was suspended and because she failed to report the license suspension, CMS properly

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revoked her Medicare enrollment.  42 C.F.R. § 424.535(a)(8) and 42 C.F.R. § 424.535(a)(9).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).  It may revoke a supplier's enrollment in the program if the supplier has abused her billing privileges.  Abuse of billing privileges includes demonstrating a pattern or practice of submitting claims that do not meet Medicare requirements.  42 C.F.R. § 424.535(a)(8)(ii).  Among those requirements:  Medicare services must be furnished by professionals legally authorized to practice by the state in which they perform the service, and they must be acting within the scope of their licenses; the supplier must comply with federal and state licensure, certification, and regulatory requirements.  42 C.F.R. §§ 410.20(b), 424.516(a)(2).

The regulations also allow CMS to revoke a supplier's enrollment if she does not comply with reporting requirements, including that she report any adverse legal action.  42 C.F.R. § 424.535(a)(9).  Within 30 days, physicians must report any adverse legal action.  42 C.F.R. § 424.516(d)(1)(ii).

Where, as here, CMS revokes on multiple grounds, the revocation may be upheld based on any one of those grounds.  Eva Orticio Villamor-Goubeaux, DAB No. 2997 at 13 (2020) and cases cited therein.

Here, effective September 28, 2018, the Illinois Department of Financial and Professional Regulation suspended Petitioner's license to practice medicine in the State of Illinois.  Her license was suspended because she had failed to pay her state income taxes.  CMS Ex. 1 at 3; see P. Ex. 1 at 1 (Snead Decl. ¶ 5).  The suspension ran from September 28 until October 11, 2018.  CMS Ex. 1 at 3.  Six claims were submitted to Medicare for services Petitioner provided during that time.  CMS Ex. 2.

Petitioner explains that she did not receive notice of the license suspension and first learned of it on October 8, 2018, when the director of her physician-hospital-organization told her about it, advised her to stop seeing patients, and advised her to correct the situation as soon as possible.  P. Ex. 1 at 1 (Snead Decl. ¶ 5).Petitioner does not claim that she didn't know about her unpaid taxes.  Petitioner immediately stopped seeing patients, and, within days, she paid her taxes and her license was reinstated.  P. Ex. 1 at 2.  (Snead Decl. ¶¶ 7-11).

Petitioner argues that she is not accountable because she personally did not bill the Medicare program during the time her license was suspended.  She blames her billing

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assistant for erroneously submitting the claims.  P. Ex. 1 at 3 (Snead Decl. ¶ 13).  Her billing assistant concedes that she knew that Medicare should not have been billed and that she (the billing assistant) failed to flag and remove the claims before they were submitted.  P. Ex. 2 at 2 (Suarez Decl. ¶¶ 5-7).

It is well settled that physicians are ultimately responsible for the accuracy of the claims submitted to Medicare for the services they render.  The regulation does not require that suppliers act with fraudulent or dishonest intent and makes no exceptions for inadvertent or accidental billing errors.  John P. McDonough III, Ph. D., DAB No. 2728 at 7 (2016); John M. Shimko, D.P.M., DAB No. 2689 at 6 (2016).  And the Departmental Appeals Board has shown little sympathy for physicians who blame their staff for billing errors.  Physicians are responsible for Medicare claims submitted on their behalf.  Their efforts to assign the blame elsewhere (billing agent, assistants) "do not relieve [them] of [their] responsibility for the improper claims or bar CMS from revoking [their] billing privileges."  Howard B. Reife, D.P.M., DAB No. 2527 at 8 (2013).

Moreover, even if I were able to overlook the irregularities with Petitioner's billing, her failing to report her license suspension provides CMS an alternative justification for revoking her Medicare enrollment.  42 C.F.R. § 424.535(a)(9).

Petitioner maintains that she was simply unaware of the reporting requirement.  This does not excuse her.  It is well established that participants in the Medicare program have a duty to familiarize themselves with Medicare requirements.  Francis J. Cinelli, Sr., D.O., DAB No. 2834 at 10 (2017); Gulf S. Med. & Surgical Inst., DAB No. 2400 at 9 (2011); John Hartman, D.O., DAB No. 2564 at 3 (2014) (quoting Heckler v. Cmty. Health Servs. of Crawford Cty., Inc., 467 U.S. 51, 63 (1984) ("those who deal with the government are expected to know the law[.]")

Conclusion

I affirm CMS's determination.  CMS may revoke Petitioner Snead's Medicare enrollment because she billed the Medicare program for services she provided while her medical license was suspended and because she did not report the license suspension to the Medicare contractor.  42 C.F.R. § 424.535(a)(8) and (9).