Alan Young, DAB CR6165 (2022)

DECISION

Petitioner, Alan Young, M.D., challenges the reconsidered determination by the Centers for Medicare & Medicaid Services (CMS) to revoke his Medicare enrollment and billing privileges.  CMS took this action pursuant to 42 C.F.R. § 424.535(a)(10) because Petitioner did not comply with the documentation and access requirements at 42 C.F.R. § 424.516(f)(2).  I find there was a legitimate basis to revoke Petitioner’s Medicare enrollment and billing privileges for the reasons stated below. 

I.    Background and Procedural History

Petitioner was enrolled in the Medicare program as a physician.  CMS Exhibit (Ex.) 9 at 1.  A physician is considered a “supplier” of services in the Medicare program.  42 U.S.C. § 1395x(d); 42 C.F.R. § 400.202.  On February 19, 2020, a request for the medical records of 20 specified Medicare beneficiaries was sent to Petitioner by Qlarant, a CMS Unified Program Integrity Contractor (UPIC).  CMS Ex. 1.  This request was sent to Petitioner at 393 E. Walnut St., Unit 3rd Fl., Pasadena, CA 91188-0001, the address on his Medicare enrollment record.  CMS Exhibits (Exs.) 1, 2, 9.  When no records were received from Petitioner, a follow up request was sent to the same address on July 13,

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2020.  CMS Ex. 3.  On September 8, 2020, Petitioner was notified that his Medicare privileges were being revoked effective October 8, 2020 because of his failure to provide CMS with access to the requested documentation, in violation of 42 C.F.R. § 424.535(a)(10).  A 10-year re-enrollment bar was also imposed, pursuant to 42 C.F.R. § 424.535(c).  CMS Ex. 5.  

Petitioner filed multiple requests for reconsideration, including one on October 14, 2020.  CMS Exs. 6, 7.  In the October 14th request, Petitioner asserted that he had not received the requests for records prior to the notice of the revocation because they were sent to a former employer which did not notify him of the requests or forward them on to him.  CMS Ex. 7.  Petitioner also asserted that he was unable to obtain a copy of the records held by a telemedicine company because the company is no longer in operation.  CMS Ex. 7 at 2.  However, in a reconsidered determination dated October 28, 2020, CMS determined that Petitioner had failed to comply with the documentation and access requirements of 42 C.F.R. § 424.516(f)(2)(i) and, as a result, the revocation of his Medicare enrollment and the 10-year re-enrollment bar were upheld.  CMS Ex. 8. 

Petitioner filed a timely request for an administrative law judge (ALJ) hearing, that was received on December 27, 2020.  On December 31, 2020, Judge Weyn issued an Acknowledgment and Standing Prehearing Order, which directed the parties to file their respective prehearing exchanges.¹  CMS filed a Motion for Summary Judgment and Prehearing Brief (CMS Motion), along with 11 proposed exhibits (CMS Exs. 1-11).  Petitioner filed a Prehearing Exchange Brief (P. Br.) on February 27, 2021 and a document entitled Petitioner’s Supporting Documentation-Open Letter to Judge Weyn on March 10, 2021², which was identified as Petitioner Exhibit 1 (P. Ex. 1).  Petitioner objected to the admission of CMS proposed Ex. 11, arguing that it had nothing to do with the reasons for the revocation of his Medicare enrollment and suggests he was guilty of criminal or fraudulent activity.  CMS filed CMS’s Response to Petitioner’s Objection to CMS Exhibit 11, asserting that the press releases provided background for the request for records in Petitioner’s case. 

Pursuant to the provisions of 42 C.F.R. § 498.60(b), I receive into evidence documents that are “relevant and material.”  While not binding on me, the Federal Rules of Evidence (FRE) may be used as guidance in determining what is relevant and material.  According to FRE 401, evidence is relevant if:  (a) it has any tendency to make a fact more or less probable than it would be without the evidence; and (b) the fact is of consequence in determining the action.  CMS proposed Ex. 11 consists of press releases detailing an

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investigation into health care fraud and subsequent criminal indictments.  I find this information has no relevance to the issue before me, which is whether CMS had a legitimate basis to revoke Petitioner’s Medicare enrollment for failure to comply with documentation or access requirements.  The reason why the government requested the documents in question and the background for the record review is irrelevant to this proceeding.  The question here is whether Petitioner provided the requested records.  Moreover, the press releases present the potential for prejudicial suggestions that Petitioner was engaged in nefarious activity while employed at a telemedicine business. 

As a result, I sustain Petitioner’s objection to CMS proposed Ex. 11.  In the absence of any other objections, I admit CMS Exs. 1-10 and P. Ex. 1 into the record.  Neither party submitted the written direct testimony of any witness.  As a result, a hearing for the purpose of cross-examination is not necessary³.  See Standing Prehearing Order § 10.  I consider the record in this case to be closed and the matter is ready for a decision on the merits. 

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). 

Petitioner also urges that I consider the issue of the re-enrollment bar, citing the hardships it has created.  P. Ex. 1 at 2.  However, I am unable to consider any request to reduce the length of the re-enrollment bar or eliminate it entirely.  The only CMS actions subject to appeal under 42 C.F.R. part 498 are the types of initial determinations specified in 42 C.F.R. § 498.3(b).  The Departmental Appeals Board (the DAB) has held that CMS’s determination of the length of the re-enrollment bar under section 498.535(c) is not subject to review, explaining that:  

[a]lthough the re-enrollment bar is a direct and legally mandated consequence of an appealable revocation determination, nothing in Part 498 authorizes the [DAB] to review the length of the bar despite that relationship between a revocation and a reenrollment bar.  Given section 498.3(b)’s precise and exclusive enumeration of appealable determinations, we cannot find a CMS action to be appealable under Part 498 unless section 498.3(b) describes the subject matter of that action.  See North Ridge Care Ctr., DAB No. 1857, at 8 (2002) (stating that “[b]y its very terms, Part 498 provides appeal rights only for these listed actions” (italics

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added)).  On its face, section 498.3(b) does not describe any matter related to a post-revocation re-enrollment bar.  

Vijendra Dave, M.D., DAB No. 2672 at 10 (2016).  Petitioner cites no contrary authority.  Given this holding by the DAB, I have no regulatory authority to review the length of the re-enrollment bar. 

III.    Jurisdiction

I have jurisdiction to decide this issue.  42 C.F.R. §§ 498.3(b)(17), 488.5(l)(2); see also 42 U.S.C. § 1395cc(j)(8). 

IV.    Findings of Fact, Conclusions of Law, and Analysis⁴

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

The regulations delegate to CMS the authority to revoke the enrollment and billing privileges of suppliers.  42 C.F.R. § 424.535.  CMS or a Medicare contractor may revoke a supplier’s Medicare enrollment and billing privileges for a number of specified reasons, including, as relevant here, when the supplier does not maintain appropriate documentation or fails to grant CMS the access specified in § 424.516(f).  42 C.F.R. § 424.535(a)(10).  After CMS revokes a supplier’s enrollment and billing privileges, CMS bars the supplier from reenrolling in the Medicare program for a minimum of one year but not greater than 10 years.  42 C.F.R. § 424.535(c)(1)(i).  

1. Petitioner did not maintain documentation, as described in 42 C.F.R. § 424.516(f)(2)(ii), for 7 years from the date of ordering, certifying, referring, or prescribing Part A or B services, items, or drugs, as required by 42 C.F.R § 424.516(f)(2)(i)(A).
2. Petitioner did not, upon request of CMS or a Medicare contractor, provide access to the documentation described in 42 C.F.R. § 424.516(f)(2)(ii), as required by 42 C.F.R. § 424.516(f)(2)(i)(B).
3. The evidence establishes that there is a legitimate basis to revoke Petitioner’s Medicare enrollment and billing privileges, pursuant to 42 C.F.R. § 424.535(a)(10).

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Under the provisions of 42 C.F.R. § 424.535(a)(10)(i), CMS is authorized to revoke a currently enrolled supplier’s enrollment if “[t]he provider or supplier did not comply with the documentation of CMS access requirements specified in § 424.516(f) of this subpart.”  42 C.F.R. § 424.516(f)(2)(i), governing physicians, provides that

(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).  

CMS, through its contractor, requested beneficiary records from Petitioner for claims associated with durable medical equipment supplies he ordered for the dates of service from January 1, 2016 through May 21, 2019.  CMS Exs. 1, 3.  Petitioner does not allege that he maintained the specified records or that he provided access to those records when requested.  Instead, he makes several arguments as to why his Medicare enrollment should not be revoked. 

Petitioner initially argues that during medical school and residency training, he never received any education related to all the mandates required by Medicare to enroll in the Provider Enrollment, Chain, and Ownership System (PECOS) program through the National Plan and Provider Enumeration System (NPPES) or the consequences of failing to adhere to stated regulations.  He also contends that his first employer, Kaiser Permanente (Kaiser), failed to inform him of the Medicare enrollment mandates, and, that Kaiser registered his medical license and National Provider Identifier (NPI) to receive Medicare benefits on his behalf, using its own correspondence address.  He stated that over the next several years, every new physician employer asked that he sign a document reassigning his Medicare benefits to their organization or entity.  He reported that even after multiple employers over the course of a nearly a decade, the correspondence address was never updated or brought to his attention.  He indicated that he did not receive any communications related to the request for records due to the incorrect address being maintained in his PECOS account by his first employer, Kaiser, and that Kaiser did not try to contact him or notify the auditor that the address was incorrect as he was no longer working for the company.  P. Ex. 1 at 1.  Petitioner acknowledged that he “failed to maintain a proper address with PECOS or NPPES and assumed that my employers would communicate any correspondences with me or requirements for updating my mailing address during the course of my early career as a physician.”  Request for Hearing at 2.

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I have no reason to doubt the veracity of these statements from Petitioner.  However, the regulations explicitly require suppliers and providers to provide notice to CMS and its contractors of their addresses and any change of address.  42 C.F.R.  424.516(d)(1) required physicians to report, among other events, a change in practice location within 30 days.  The Enrollment Application itself requires a certification by the physician that he or she will notify the Medicare contractor of any change in practice location and of any other changes to the information reported on that form.  CMS Ex. 10 at 24.  So, while I do not question Petitioner’s statement that he did not, in fact, receive the original requests for records because they were sent to the address of a former employer, the burden was on Petitioner to correct his address with the appropriate notification. 

Petitioner then alleges that when he finally became aware of the requests for records, he did attempt to retrieve the electronic medical records from the telemedicine company where he worked for three months in 2018 but discovered the company was no longer conducting business and all attempts to contact supervisors, staff, or the IT department of that business were unsuccessful.  Request for Hearing at 1; P. Br. at 3.  He asserted that the

request for 20 records should not magnify the severity of my inability to produce electronic records from a bankrupt or dissolved telemedicine company.  The fact is that I produce detailed and accurate patient records for every telemedicine encounter for my employer, but they maintained control of the documentation and did not provide me access to the records since I stopped working for them. 

Request for Hearing at 1.  The regulations requiring document retention and disclosure by physicians were published in a final rule on April 27, 2012.  77 Fed. Reg. 25284.  In the summary of the final rules, it is clearly stated that the rule “mandates document retention and provision requirements on providers and supplier [sic] that order and certify items and services for Medicare beneficiaries.”  77 Fed. Reg. 25284.  The final rules implemented The Patient Protection and Affordable Care Act (Pub. L. 111-148), as amended by the Health Care and Education Reconciliation Act of 2010 (Pub. L. 111-152) (collectively known as the Affordable Care Act), with the purpose of promoting “the furnishing of quality care, while protecting the integrity of the program.”  Id.  To establish accountability measures to ensure compliance with the ordering and referring provisions, section 6406 of the Affordable Care Act amended § 1842(h) of the Act (42 U.S.C. § 1395u(h)) by adding a new paragraph which states,

The Secretary may revoke enrollment, for a period of not more than one year for each act, for a physician or supplier under section 1866(j) if such physician or supplier fails to maintain and, upon request of the Secretary, provide access to

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documentation relating to written orders or requests for payment for durable medical equipment, certifications for home health services, or referrals for other items or services written or ordered by such physician or supplier under this title, as specified by the Secretary. 

The statutory language gives no support to the argument that the regulation implemented to effectuate the statute only applied to a custodian of a record.  It is clear that the purpose of the revision was to ensure that physicians ordering durable medical equipment or making referrals for services covered by Medicare could provide supportive documentation for those actions after the fact.  The preamble to the final regulation refers to the revised regulations as the “Medicare Requirement for Physicians, Other Suppliers, and Providers to Maintain and Provide Access to Documentation on Referrals to Programs at High Risk of Waste and Abuse.”  77 Fed. Reg. 25284, 25309.  To limit those provisions to only those who “possess” the records would circumvent the purpose of the statute, which was to maintain the integrity of the Medicare program by requiring physicians to document and support their actions when Medicare funds are expended.  Thus, the fact that the employer is no longer in existence or no longer possess the records does not excuse the physician from the obligation to retain and provide them upon request.  To find otherwise would not be in keeping with the statutory mandate to “establish accountability measures to ensure compliance with the ordering and referring provisions.”  77 Fed. Reg. 25284, 25309.  

Petitioner finally argues that

“the failure to produce the records has now led to a 10-year revocation of my Medicare privileges and crippled my ability to practice medicine now and in the future, destroying my childhood dreams, and putting my ability to provide for my extended family in jeopardy.  In the midst of a global pandemic and catastrophic recession, I urge you to reconsider the decision and/or the severity of the Medicare revocation given the extenuating circumstances of my case.”

Request for Hearing at 2.  Petitioner has also provided a Letter of Support from Jacob Rastegar, M.D., attesting to his competence and work ethic.  DAB E-File Dkt. C-21-319, Document 2. 

I acknowledge that the revocation has likely resulted in harsh consequences for Petitioner.  However, to the extent that his request for relief is based on principles of equity, I have no authority to grant such relief.  US Ultrasound, DAB No. 2302 at 8 (2010) (“Neither the ALJ nor the [DAB] is authorized to provide equitable relief by reimbursing or enrolling a supplier who does not meet statutory or regulatory

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requirements.”).  The DAB has consistently held that neither it nor the ALJ has authority to reverse an authorized revocation for reasons of equity.  See, e.g., Patrick Brueggeman, D.P.M., DAB No. 2725 at 15 (2016) (the ALJ and the DAB may not “restore a supplier’s billing privileges on equitable grounds.”); Horace Bledsoe, M.D., and Bledsoe Family Medicine, DAB No. 2753 at 11 (2016) (declining to rule on petitioners’ estoppel claim and stating that the DAB may not overturn CMS’s lawful revocation of petitioners’ billing privileges on equitable grounds).  As such, I cannot grant Petitioner’s request for relief on the basis of equity. 

In this case, the stated basis for revocation, that of Petitioner’s failure to maintain records and grant access to those records, is grounded in law and fact.  Accordingly, I find that CMS had a legitimate basis for revoking Petitioner’s Medicare enrollment and billing privileges, pursuant to the provisions of 42 C.F.R. § 424.535(a)(10).

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).

Endnotes

¹ This case was reassigned to me to August 31, 2022.

² While Petitioner’s submissions were not provided in the format specified in Judge Weyn’s Standing Prehearing Order, because of his pro se appearance and in the absence of any evidence of prejudice to CMS, they are accepted as submitted.

³ Because an in-person hearing for the purpose of cross-examination is not necessary, I need not rule on CMS’s motion for summary judgment.

⁴ My findings of fact and conclusions of law are set forth in italics and bold font.