Heidi Woody, NP, formally known as Heidi Richards, NP, DAB CR6006 (2021)

DECISION

Wisconsin Physician Service Insurance Corporation (WPS), an administrative contractor acting on behalf of the Centers for Medicare & Medicaid Services (CMS), revoked the Medicare enrollment and billing privileges of Petitioner, Heidi Woody, NP (formerly known as Heidi Richards, NP), because she failed to provide CoventBridge Group (CoventBridge), a unified program integrity contractor (UPIC), with requested documentation for 20 Medicare beneficiaries for whom she had ordered durable medical equipment, prosthetics, orthotics, and supplies (DMEPOS).  Thereafter, CMS upheld Petitioner’s revocation.  For the reasons stated herein, I affirm the revocation of Petitioner’s Medicare enrollment and billing privileges.

I.  Background

Petitioner is a nurse practitioner.  See, e.g, CMS Ex. 7 at 4.  As an enrolled supplier in the Medicare program, Petitioner listed a correspondence address in Saginaw, Michigan.  CMS Ex. 1 at 2, 5.  Petitioner listed the same address as a secondary practice location for Covenant Medical Center, Inc.Petitioner reported she had been employed by Covenant Healthcare.  CMS Ex. 7 at 4.  CMS Ex. 1 at 2, 5. 

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On January 24, 2020, CoventBridge informed Petitioner that it was conducting a review of DMEPOS claims and requested that she submit records for 20 beneficiaries for whom she was the ordering physician for DMEPOS items.CoventBridge enclosed a list of 20 beneficiaries that included the billing codes for 47 DMEPOS items that had been ordered for these beneficiaries.  CMS Ex. 2 at 5.   CMS Ex. 2.  CoventBridge explained that it “performs program integrity activities aimed to reduce fraud, waste, and abuse in the Medicare and Medicaid programs.”  CMS Ex. 2 at 1.  CoventBridge mailed the letter to Petitioner’s correspondence address in Saginaw, Michigan, and the letter was received on January 29, 2020.  CMS Exs. 2 at 1; 3 at 1.  On July 15, 2020, CoventBridge issued a second notice in which it cautioned that it would revoke Petitioner’s Medicare enrollment if it did not receive the requested records within 15 days.  CMS Ex. 4 at 1; see CMS Ex. 5 at 1 (confirmation of delivery via certified mail).

After Petitioner did not submit the requested records, WPS issued an initial determination, dated August 18, 2020, informing her that it had revoked her Medicare enrollment and billing privileges pursuant to 42 C.F.R. § 424.535(a)(10), effective September 17, 2020, due to her failure to comply with 42 C.F.R. § 424.516(f).  CMS Ex. 6.  WPS also informed Petitioner that it had imposed a 10-year bar to re-enrollment.  CMS Ex. 6 at 2.

Petitioner submitted a request for reconsideration dated May 19, 2021.  CMS Ex. 7 at 1.  Petitioner reported she was unaware of both her revocation and the UPIC records request.  CMS Ex. 7 at 1.  Petitioner further explained:

I did work for a short time in 2017 for a telemedicine company, Advantage Choice Care, LLC, based in New Jersey.  I do not believe Covenant has any affiliation with this company and the charts I reviewed for Advantage Choice Care were independent of my work with Covenant.  I do not know concretely at present, but it is possible that the 20 patients identified in the audit inquiry were patients of that company.

CMS Ex. 7 at 2-3; see Petitioner’s Brief (P. Br.) at 3-4 (“[Petitioner] explained in her reconsideration request that the listed beneficiaries on the records requests are not patients of Covenant and that she currently had no documents to provide that are responsive to CMS’ request.”).

On June 8, 2021, CMS offered Petitioner another opportunity to submit the requested records.  CMS Ex. 8 at 1-2.  Petitioner’s then-counsel responded, stating:  “The short answer to your request for records is that [Petitioner] has no records for these patients.  She was working remotely for a telemedical company, who maintained the records for the treatments.”  CMS Ex. 8 at 1.  Petitioner submitted a letter from Covenant Healthcare,

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dated June 9, 2021, reporting that it did not have medical records or documentation for any of the 20 beneficiaries who were listed in the records request.  CMS Ex. 9 at 1. 

In a letter dated June 23, 2021, CMS’s Provider Enrollment & Oversight Group informed Petitioner that although she had not timely requested reconsideration of the initial determination revoking her enrollment, it had granted a “good cause waiver” and was issuing a reconsidered determination.  CMS Ex. 10 at 1.  In upholding the revocation of Petitioner’s enrollment pursuant to 42 C.F.R. § 424.535(a)(10), CMS explained, in pertinent part:

Pursuant to § 424.516(f)(2)(ii), the physician or other eligible professional is required to maintain for seven years electronic and written documents relating to written orders, certifications, referrals, prescriptions, and requests for payments for Part A or B service, items, or drugs.  The documentation must include the National Provider Identifier (NPI) of the eligible professional who ordered, certified, referred, or prescribed the Part A or B service, item, or drug.  Because [Petitioner] is an eligible professional who provided Medicare Part B services, including ordering and certifying DMEPOS, this regulation applies to her.

*  *  *

Furthermore, CMS sent copies of the records requests and the revocation notice via email on June 8, 2021.  The email also included a link to a secure portal where [Petitioner] could upload the requested medical records.  Even after receiving copies of the records requests, [Petitioner] still failed to provide access to the requested documentation.  Therefore, CMS finds that [Petitioner] failed to comply with § 424.516(f)(2)(i)(B).

In addition, in her reconsideration request, [Petitioner] admits that she “has no records for these patients.”  Therefore, CMS finds that [Petitioner] failed to comply with the documentation maintenance requirement at § 424.516(f)(2)(i)(A).  [Petitioner] and representatives of her employer, Covenant, repeatedly assert that Covenant has no records that are responsive to CMS’ and CoventBridge’s requests.  However, [Petitioner] admits to treating patients outside of her employment with Covenant. Therefore, whether or not Covenant has records for the listed beneficiaries has no bearing on [Petitioner’s] responsibility to maintain documentation for the Medicare beneficiaries she treats, pursuant to § 424.516(f)(2)(i)(A), and provide the records upon request, pursuant to § 424.516(f)(2)(i)(B). Accordingly, CMS upholds the revocation of [Petitioner’s] Medicare enrollment pursuant to § 424.535(a)(10).

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CMS Ex. 10 at 3-4 (internal citations omitted).  CMS also upheld the 10-year bar to re-enrollment, explaining that “[e]ach failure constitutes an individual act of noncompliance for each beneficiary” and “there are no Medicare claims data evidencing . . . interaction with any Medicare beneficiary to establish medical necessity.”  CMS Ex. 10 at 4.  

Petitioner, through counsel, submitted a timely request for an administrative law judge (ALJ) hearing that was received on August 20, 2021.  Petitioner explained that she “had an agreement with Advantage Choice Care to treat patients through their telemedicine platform and the resulting records were maintained as electronic health records in that same platform.”  Request for Hearing at 4-5.  Petitioner reported, “[i]t was not until after [she] received notice of the revocation at issue that she learned of the fraudulent telemedicine and DME marketing schemes alleged against Advantage Choice Care.”  Request for Hearing at 6; see CMS Ex. 11 (indictment charging Advantage Choice Care’s owners with conspiring to defraud the United States and pay and receive kickbacks, engaging in a conspiracy to commit health care and wire fraud, soliciting and receiving kickbacks, and conspiring to commit money laundering).  

Pursuant to my standing pre-hearing order, CMS filed a pre‑hearing brief and motion for summary judgment, along with 11 proposed exhibits (CMS Exs. 1-11).  Petitioner filed a response, to include a cross-motion for summary judgment.  The IG filed a reply.  In the absence of any objections, I admit all submitted exhibits into the evidentiary record. 

Neither party has submitted the written direct testimony of any witnesses, and a hearing is therefore unnecessary for the purpose of cross-examination of any witnesses.  See Pre‑Hearing Order §§ 12-14.  Because an in-person hearing for the purpose of cross-examination is unnecessary, I may decide this case on the written record without ruling on the parties’ motions for summary judgment.

II.  Issue

Whether CMS had a legitimate basis to revoke Petitioner’s Medicare enrollment and billing privileges pursuant to 42 C.F.R. § 424.535(a)(10).

III.  Jurisdiction

I have jurisdiction to decide this issue.  42 C.F.R. §§ 498.3(b)(17), 498.5(1)(2); see also 42 U.S.C. § 1395cc(j)(8).

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IV.  Findings of Fact, Conclusions of Law, and AnalysisMy findings of fact and conclusions of law are set forth in italics and bold font.

Pursuant to 42 U.S.C. § 1395cc(j)(1)(A), CMS has promulgated enrollment regulations.  See 42 C.F.R. § 424.500 et seq.  These regulations give CMS the authority to revoke the billing privileges of an enrolled supplier under specified circumstances.  See 42 C.F.R. § 424.535(a).  Relevant to this case, CMS may revoke a supplier’s billing privileges based on a “[f]ailure to document or provide CMS access to documentation.”  42 C.F.R. § 424.535(a)(10); see 42 U.S.C. § 1395u(h)(9).  The relevant revocation authority, 42 C.F.R. § 424.535(a)(10), states the following:  

(i) The provider or supplier did not comply with the documentation or CMS access requirements specified in § 424.516(f) of this subpart.
(ii) A provider or supplier that meets the revocation criteria specified in paragraph (a)(10)(i) of this section, is subject to revocation for a period of not more than 1 year for each act of noncompliance.

Section 424.516 provides additional requirements for enrolling and maintaining active enrollment status in the Medicare program, stating:  

(f) Maintaining and providing access to documentation.

* * *

(2)(i) A physician or, when permitted, an eligible professional who orders, certifies, refers, or prescribes Part A or B services, items or drugs is required to —

(A) Maintain documentation (as described in paragraph (f)(2)(ii) of this section) for 7 years from the date of the service; and
(B) Upon request of CMS or a Medicare contractor, to provide access to that documentation (as described in paragraph (f)(2)(ii) of this section).

The regulation further directs that documentation that must be maintained includes “written and electronic documents . . . relating to written orders, certifications, referrals, prescriptions or requests for payments for Part A or B services, items, or drugs.”  42 C.F.R. § 424.516(f)(2)(ii).

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At the time of the initial determination, if CMS revoked a provider or supplier’s enrollment, it could impose a bar on re‑enrollment for a minimum of one year, but no more than ten years.  42 C.F.R. § 424.535(c)(1)(i).

1. The UPIC asked Petitioner to provide documentation for 20 specific beneficiaries for whom she ordered DMEPOS items.  
2. Petitioner could not produce the requested documentation because she did not maintain her own copies of these records.  
3. Because Petitioner could not comply with a request that she provide documentation relating to DMEPOS orders for 20 Medicare beneficiaries, as required by 42 C.F.R. § 424.516(f)(2), CMS was authorized to revoke her enrollment pursuant to 42 C.F.R. § 424.535(a)(10).

Both CoventBridge, in its capacity as the UPIC, and CMS requested that Petitioner provide copies of medical records for 20 Medicare beneficiaries for whom she had ordered DMEPOS items.  CMS Exs. 2 at 1; 4 at 1; 8 at 1.  Petitioner concedes that she did not maintain and retain the requested documentation.  P. Br. at 9 (“[Petitioner] had an agreement with Advantage Choice Care to treat patients through their telemedicine platform and the resulting records were maintained as electronic health records in that same platform.”).  Regardless of whether another entity purports to maintain copies of beneficiary records, Petitioner, as the ordering practitioner and a supplier in the Medicare program, was required, pursuant to 42 C.F.R. § 424.516(f), to maintain and retain for at least seven years documentation supporting her DMEPOS orders for Medicare beneficiaries.  Because Petitioner was unable to produce the requested documentation for 20 Medicare beneficiaries upon the request of the UPIC, as required by 42 C.F.R. § 424.516(f), CMS had a legitimate basis to revoke her Medicare enrollment and billing privileges pursuant to 42 C.F.R. § 424.535(a)(10).  

Petitioner claims that “[a]fter learning of the records request and revocation and determining that the records related to her time with Advantage Choice Care, [she] attempted to contact Advantage Choice Care to obtain the electronic health records in their custody on their telemedicine platform.”  P. Br. at 4.  Petitioner explained that “[b]ecause [she] had not been affiliated with Advantage Choice Care for a number of years, she no longer had access to their platform and the records at issue in their custody.”  P. Br. at 4.  Notwithstanding the terms of her agreement with Advantage Choice Care to use its electronic records platform, Petitioner, as a Medicare participant, was independently required to maintain and retain, for a period of seven years, documentation supporting her written orders and prescriptions for Part A and B items and

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services.  42 C.F.R. § 424.516(f)(2).  Specifically, as relevant here, Petitioner was required to maintain documentation relating to her orders for DMEPOS items.Petitioner reported that “[d]uring her attempts to contact Advantage Choice Care, [she] learned for the first time that the owners of Advantage Choice Care had been indicted and that the company was no longer operating, and its records had been seized.”  P. Br. at 4; see CMS Ex. 11.  The basis for revocation set forth in 42 C.F.R. § 424.535(a)(10) and the documentation requirements outlined in 42 C.F.R § 424.516(f) for, inter alia, DMEPOS orders both originate from anti-fraud provisions of the Patient Protection and Affordable Care Act, P.L. 111-148, as amended by the Health Care and Education Reconciliation Act of 2010, P.L. 111-152.  The instant circumstances demonstrate the value of requiring practitioners to maintain and retain their own documentation of DMEPOS orders to Medicare beneficiaries.  See 77 Fed. Reg. 25,284, 25,309-25,312 (Apr. 27, 2012).  Id.  Petitioner’s failure to maintain, retain, and provide access to records supporting the DMEPOS orders that were requested by the UPIC subjects her to revocation of her enrollment pursuant to 42 C.F.R. §§ 424.535(a)(10) and 424.516(f).  See 42 U.S.C. § 1395u(h)(9) (“The Secretary may revoke enrollment, for a period of not more than one year for each act . . . if such physician or supplier fails to maintain and . . . provide access to . . . written orders or requests for payment for durable medical equipment . . . .”).  As a participant in the Medicare program, Petitioner was required to independently maintain documentation of her orders for, inter alia, DMEPOS items for Medicare beneficiaries, even when another entity separately maintains those records.  42 C.F.R. § 424.516(f)(2) (“[A]n eligible professional who orders . . . items . . . is required to . . . [m]aintain documentation . . . for 7 years from the date of the service; and . . . provide access to that documentation . . . .”). 

To the extent Petitioner had an agreement that Advantage Choice Care would maintain and retain documentation supporting her DMEPOS orders to Medicare beneficiaries, such an agreement cannot exempt her from Medicare participation requirements.  In fact, the rulemaking adding the instant basis for revocation and revising 42 C.F.R. § 424.516 specifically explained that both a practitioner and another entity may simultaneously be required to maintain, inter alia, records supporting DMEPOS orders, stating that “[t]his final rule places the responsibility for the maintenance of records on both the ordering and certifying physician and the provider and supplier.”  77 Fed. Reg. at 25,310 (emphasis added).CMS subsequently broadened the scope of the requirement for practitioners to maintain documentation.  84 Fed. Reg. 47,794, 47,835 (Sep. 10, 2019).  The rulemaking unambiguously clarified that “[t]he physician or other eligible professional who signed the order or certification is responsible for maintaining and disclosing the documentation.”  Id.

Petitioner does not argue that she complied with the requirement to maintain documentation of her DMEPOS orders for seven years from the date of the service or

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provided access to that documentation, as required by 42 C.F.R. § 424.516(f).  In fact, Petitioner admits that she neither maintained documentation of her DMEPOS orders nor furnished the requested documentation to either the UPIC or CMS.  P. Br. at 3-4.  Inasmuch as Petitioner did not dispute the determination that she did not comply with the requirements of section 424.516(f), CMS correctly determined that revocation pursuant to 42 C.F.R. § 424.535(a)(10)(i) is warranted because she “failed to comply with the documentation maintenance requirement at § 424.516(f)(2)(i)(A).”  CMS Ex. 10 at 4.

Petitioner argues at length that the revocation is “an unnecessary sanction” and will adversely impact her community.  P. Br. at 7-15.  These arguments amount to a challenge to how CMS exercised its discretion.  See 42 C.F.R. § 424.535(a) (stating that CMS “may” revoke a provider or supplier’s enrollment for one of the enumerated reasons).  The scope of my review is not whether CMS should have revoked Petitioner’s Medicare enrollment pursuant to 42 C.F.R. § 424.535(a)(10), but rather, whether CMS could have revoked her enrollment, in that I am only authorized to review whether CMS had a legitimate basis to revoke Petitioner’s enrollment.  The DAB has explained that “it is not for the ALJ and the [DAB] to look behind that exercise of discretion to ask whether he or she, or the Board, standing in CMS’s shoes, would reach the same decision to revoke.”  George M. Young, M.D., DAB No. 2750 at 11 (2016); see also Letantia Bussell, M.D., DAB No. 2196 at 13 (2008) (holding that an ALJ could not substitute her discretion for that of CMS in a Medicare enrollment determination); Decatur Health Imaging, LLC, DAB No. 2805 at 8-9 (2017) (DAB does not review CMS’s exercise of discretion to take other actions that the regulations authorize relating to the enrollment of suppliers and providers).

Finally, Petitioner disputes the 10-year length of the re-enrollment bar.  P. Br. at 15-16.  The DAB has unambiguously explained that such a matter is beyond the scope of an ALJ’s review, stating:  

A decision by CMS or its contractor about how long to bar a revoked supplier from re-enrolling in Medicare, unlike the determination to revoke the supplier’s billing privileges, is not an appealable “initial determination” under 42 C.F.R. Part 498.  Blossomwood Medical, P.C., et al., DAB No. 2914, at 11 (2018); Vijendra Dave, M.D. [DAB No. 2672] at 8-11 (stating that the authority of an ALJ or the Board in a revocation appeal “does not extend to reviewing the length of the reenrollment bar imposed by CMS”).  We therefore cannot consider or act upon Petitioner’s contention that the three-year re-enrollment bar was excessive in her circumstances.  

Linda Silva, P.A., DAB No. 2966 at 11 (2019).  A provider or supplier is “subject to revocation for a period of not more than 1 year for each act of noncompliance.”  42 C.F.R. § 424.535(a)(10)(ii).  Pursuant to 42 C.F.R. § 424.535(c)(1)(i), CMS may impose a re-enrollment bar for a minimum of one year and a maximum of ten tears. 

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Because Petitioner failed provide any of the requested records, she was noncompliant with 20 requests for records.Petitioner has not denied that she ordered the DMEPOS items that were the subject of the records request.   CMS was therefore authorized to impose a re-enrollment bar of up to one year per violation, capped at a maximum of 10 years.  42 C.F.R. §§ 424.535(a)(10)(ii), 424.535(c)(1)(i).  Petitioner has not identified any legal error in CMS’s imposition of the re-enrollment bar, and I may not otherwise review the duration of the re-enrollment bar.  See Vijendra Dave, M.D., DAB No. 2672 at 11 (“CMS’s determination regarding the duration of the re-enrollment bar is not reviewable.”)  

V.  Conclusion

For the reasons explained above, I affirm the revocation of Petitioner’s Medicare enrollment and billing privileges pursuant to 42 C.F.R. § 424.535(a)(10).