Azsha Matthews, N.P., DAB CR6255 (2023)

DECISION

Petitioner, Azsha Matthews, a nurse practitioner (N.P.), was enrolled in the Medicare program as a supplier of services.  The Centers for Medicare & Medicaid Services (CMS), through a Medicare Unified Program Integrity Contractor (UPIC), requested that Petitioner produce medical records for 20 Medicare beneficiaries for whom claims for durable medical equipment, prosthetics, orthotics, and supplies (DMEPOS) had been submitted to Medicare.  Medicare records indicated that Petitioner was the ordering professional for the DMEPOS items.  Petitioner did not produce the requested records.  On that basis, CMS revoked Petitioner’s Medicare billing privileges pursuant to 42 C.F.R. § 424.535(a)(10) and imposed a 10-year reenrollment bar.  Petitioner now appeals.

I affirm CMS’s determination.  I find that CMS is authorized to revoke Petitioner’s Medicare privileges because CMS records show that Petitioner ordered DMEPOS items for the beneficiaries identified in the records request but did not maintain medical records for the beneficiaries and could not supply those records when the UPIC requested them.  Petitioner did not dispute that she treated the beneficiaries at issue.  I have no authority to review the length of the reenrollment bar.

Page 2

I.    Background and Procedural History

Petitioner is a nurse practitioner licensed in Michigan.  Petitioner’s Exhibit (P. Ex.) 1 at 2 (Matthews Decl. ¶ 4).¹  Between July 2018 and March 2019, Petitioner was employed part-time by a telemedicine company, Pacific Telemed, LLC (Pacific Telemed).  Id. (Matthews’s Decl. ¶ 5).  Pacific Telemed hired Petitioner to work as a nurse practitioner evaluating patients via telemedicine and determining whether the patients met the clinical requirements for insurance coverage of DMEPOS items.  Id.  If Petitioner determined that the patients qualified for coverage of such items, Petitioner would issue written orders for the items.  Id.  Once Petitioner ended her employment with Pacific Telemed, Petitioner did not retain any records of the patients she treated or orders she issued and she no longer had online access to those records.  Id. at 4 (Matthews Decl. ¶ 11).

In a certified letter dated February 21, 2020, the UPIC requested that Petitioner provide medical records for 20 Medicare beneficiaries for dates of service between January 1, 2016, and May 21, 2019.²  CMS Ex. 2 at 1, 5.  The letter warned that if Petitioner failed to submit the requested medical records by April 6, 2020, her Medicare billing privileges may be revoked pursuant to 42 C.F.R. § 424.535(a)(10).  Id. at 2.   The UPIC mailed the letter to Petitioner at her correspondence address on file:  25420 Goddard Rd., Taylor, MI 48180 (Goddard Rd. address).  Id. at 1; see also CMS Ex. 5 at 1.  The letter was returned to the UPIC as unclaimed.  CMS Ex. 2 at 8.

Because Petitioner did not respond to the February 21 letter, the UPIC sent a follow-up letter, dated July 15, 2020, to Petitioner at the Goddard Rd. address.  CMS Ex. 3 at 1.  The July 15 letter warned that if Petitioner failed to submit the requested documents by July 30, 2020, her Medicare billing privileges may be revoked pursuant to 42 C.F.R. § 424.535(a)(10).  Id.  The certified mail receipt for the July 15 letter indicates that the letter was delivered and signed for on July 23, 2020.  Id. at 9.

By letter dated August 19, 2020, Wisconsin Physicians Service Insurance Corporation (WPS), a Medicare administrative contractor, informed Petitioner that her Medicare billing privileges would be revoked, effective September 18, 2020.  CMS Ex. 4 at 1.  The letter was addressed to Petitioner at the Goddard Rd. address.  Id.  In the letter, WPS

Page 3

explained that it was revoking Petitioner’s Medicare billing privileges pursuant to 42 C.F.R. § 424.535(a)(10), because, when asked to do so, she did not provide medical records for 20 Medicare beneficiaries for whom she had ordered DMEPOS items.  Id. at 1, 4.  WPS also notified Petitioner that she was barred from applying to reenroll as a Medicare supplier for a period of 10 years.  Id. at 2.

In a letter dated November 24, 2020, Petitioner requested reconsideration of WPS’s initial determination to revoke her Medicare enrollment and billing privileges.  CMS Ex. 5 at 1.  In the reconsideration request, Petitioner explained that her correspondence address had changed, but staff at the Goddard Rd. address did not receive the initial records request and did not forward the second record request to her new address.  Id.  Therefore, Petitioner did not receive the document requests.  Id.  Petitioner explained that she learned that her Medicare billing privileges had been revoked on or about September 30, 2020, when Medicare began denying her claims.  Id.  She represented that she did not receive copies of the document production requests or the revocation notice until November 23, 2020.  Id.

On December 15, 2020, an employee in CMS’s Provider Enrollment & Oversight Group³ emailed copies of the records requests and the revocation notice to Petitioner.  CMS Ex. 6.  The email also included a secure link to upload the requested medical records.  Id. at 1.  The email instructed Petitioner to upload the records through the provided link “no later than close of business on Tuesday, December 22, 2020.” Id.

On December 22, 2020, Petitioner’s current employer submitted a response on Petitioner’s behalf.  CMS Ex. 7.  Petitioner’s response stated that the 20 Medicare beneficiaries mentioned in the record requests and the revocation notice were no longer under Petitioner’s care.  Id. at 1.  The response acknowledged that the Medicare beneficiaries “may have been patients seen by [Petitioner] as part of her employment with Pacific Telemed.”  Id.  Furthermore, the response stated that Petitioner was unable to produce the requested records because the requested records “are not, and never have been, in [Petitioner’s] custody or control . . . .” Id.  Finally, the response explained that Petitioner had attempted “numerous times” to contact Pacific Telemed and the DME supplier to secure the requested documents, but without success.  Id.

On January 27, 2021, CMS, through the Provider Enrollment & Oversight Group, issued an unfavorable reconsidered determination, citing 42 C.F.R. § 424.535(a)(10) and 42 C.F.R. § 424.516(f).  CMS Ex. 1 at 1.  CMS concluded that WPS made no error in the initial determination, and it upheld both the revocation and the imposed reenrollment bar.  Id. at 3-4.

Page 4

Petitioner timely requested a hearing before an administrative law judge.  The Civil Remedies Division acknowledged receipt of Petitioner’s hearing request and provided a copy of my Standing Prehearing Order (Prehearing Order).  Consistent with the Prehearing Order, CMS submitted a motion for summary judgment (CMS Br.) and nine exhibits (CMS Exs. 1-9).  Petitioner did not object to CMS’s proposed exhibits.  Petitioner submitted a cross-motion for summary judgment (P. Br.) and one declaration marked as Matthews Declaration.  The declaration is a written statement signed by Petitioner under penalty of perjury.  CMS did not object to the declaration.  Although Petitioner did not mark the declaration as an exhibit nor did Petitioner list herself as a witness, I admit the declaration as P. Ex. 1 in the absence of objection.  Furthermore, I construe the declaration as Petitioner’s written direct testimony.⁴

Although the parties moved for summary judgment, this matter may be decided based on the written record without considering whether the standards for summary judgment have been met.  Prehearing Order ¶¶ 8-11; Civil Remedies Division Procedures § 19(d).  My Prehearing Order informed the parties that “[a]n in‑person hearing to cross-examine witnesses will be necessary only if a party files admissible, written direct testimony, and the opposing party asks to cross-examine.”  Prehearing Order ¶ 10.  While Petitioner filed a declaration that I have construed as Petitioner’s written direct testimony, CMS did not request to cross-examine Petitioner.  Because a hearing is unnecessary, I decide this case on the written record.  I deny the parties’ cross-motions for summary judgment as moot.

II.    Issue

The issue in this case is whether CMS had a legal basis to revoke Petitioner’s Medicare enrollment and billing privileges under section 1842(h)(9) of the Social Security Act (Act) (codified at 42 U.S.C. § 1395u(h)(9)) and 42 C.F.R. § 424.535(a)(10).

III.    Jurisdiction

I have jurisdiction to hear and decide this case.  See 42 C.F.R. §§ 498.3(b)(17), 498.5(l)(2);see also Act § 1866(j)(8) (codified at 42 U.S.C. § 1395cc(j)(8)); 42 C.F.R. §§ 405.803(a), 424.545(a), 498.1(g).

Page 5

IV.    Discussion

A.  Applicable Legal Authority

The Act authorizes the Secretary of Health and Human Services (Secretary) to promulgate regulations governing the enrollment process for providers and suppliers.  Act §§ 1102, 1866(j) (42 U.S.C. §§ 1302, 1395cc(j)).  A “supplier” is “a physician or other practitioner, a facility, or other entity (other than a provider of services) that furnishes items or services” under the Medicare provisions of the Act.  Act § 1861(d) (42 U.S.C. § 1395x(d)); see also Act § 1861(u) (42 U.S.C. § 1395x(u)).

The Act further authorizes the Secretary to revoke a supplier’s Medicare enrollment (for a period of not more than one year for each act) if the supplier does not maintain and, upon request, provide access to documentation relating to written orders or requests for payment for durable medical equipment or other items or services written or ordered by the supplier.  Act § 1842(h)(9) (42 U.S.C. § 1395u(h)(9)).  Implementing the statutory provisions, CMS’s regulations provide that CMS, acting on behalf of the Secretary, may revoke a supplier’s Medicare enrollment if the supplier fails to comply with the documentation or access requirements of 42 C.F.R. § 424.516(f).  42 C.F.R. § 424.535(a)(10).

Section 424.516(f)(2)(i) provides that a physician or an “eligible professional” who orders DMEPOS items must maintain documentation of the transactions for seven years.  “Documentation” includes written and electronic documents, including the NPI (national provider identifier) of the physician or eligible professional, relating to written orders and certifications and requests for payment for items of DMEPOS.  42 C.F.R. § 424.516(f)(2)(ii).

B.  Findings of Fact, Conclusions of Law, and Analysis⁵

1. CMS had a legal basis to revoke Petitioner’s Medicare enrollment pursuant to 42 C.F.R. § 424.535(a)(10). 

As the appellate decision of the Departmental Appeals Board (DAB) in George M. Young, M.D., DAB No. 2750 (2016) explains, the plain language of section 424.516(f)(2) requires practitioners who order DMEPOS items billed to Medicare to do two things.  First, they must retain documents related to orders or certifications for DMEPOS items for a period of seven years.  Id. at 8.  Second, they must provide CMS or its contractor access to those documents upon request.  Id.  Petitioner concedes that she treated the patients for whom CMS requested records, but she neither maintained documents related to her treatment nor

Page 6

produced them to CMS’s contractor.  P. Ex. 1 at 3-4 (Matthews Decl. ¶¶ 9, 11, 12).  This is all that is required for CMS to revoke Petitioner’s Medicare enrollment.

Petitioner attempts to excuse her failure to maintain and produce the records by arguing that she “was not at fault in causing any delay or noncompliance.”  P. Br. at 8.  She contends that “no revocation is justified due to . . . Pacific Telemed’s blocking all access to [Petitioner’s] records . . . .” Id. at 9.  Such excuses do not exempt Petitioner from complying with the requirements imposed by 42 C.F.R. § 424.516(f)(2), however.  As the Young decision makes clear, Pacific Telemed’s actions in revoking access to its online medical records portal in 2020 do not absolve Petitioner of the duty to “to maintain records from the time they came into existence [in 2018-2019] through a period of seven years as required under the regulation.”  Young, DAB No. 2750 at 11.  There is no dispute that Petitioner failed to do so.  P. Ex. 1 at 4 (Matthews Decl. ¶ 11); CMS Ex. 7 at 1.

Petitioner argues that the drafters of 42 C.F.R § 424.535(a)(10) intended the regulation to be applied flexibly.  P. Br. at 9 (citing 77 Fed. Reg. 25,284, 25,310 (2012)).  As Petitioner correctly points out, the regulatory preamble confirms that CMS has discretion not to revoke under circumstances that, despite “good faith effort . . . to comply with [the] rule,” “arise outside . . . of the control of” providers or suppliers subject to the records retention and disclosure requirements.  77 Fed. Reg. at 25,310.  However, the Young decision rejected the argument that the preamble language creates a blanket exception to the document retention rules for circumstances beyond a practitioner’s ability to control.  DAB No. 2750 at 11.  Rather, “[i]t is within CMS’s discretion to determine whether a particular [practitioner’s] circumstances warrant a decision not to pursue revocation.”  Id. (emphasis added).  But, once CMS exercises its discretion and determines that revocation is warranted, the administrative law judge may not “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.”  Id. (citing Sandra E. Johnson, CRNA, DAB No. 2708 at 16 (2016)).

The Young decision is consistent with many DAB decisions holding that an administrative law judge’s review of CMS’s determination to revoke a supplier’s Medicare enrollment is limited to deciding whether CMS has established one or more of the grounds specified in section 424.535(a).  See, e.g., William Garner, M.D., DAB No. 3026 at 16 (2020); Norman Johnson, M.D., DAB No. 2779 at 11 (2017), and cases cited therein.  Although CMS itself has the discretion to consider “unique or mitigating circumstances in deciding whether, or how, to exercise its revocation authority,” I do not.  Johnson, DAB No. 2779 at 11 (citing Care Pro Home Health, Inc., DAB No. 2723 at 9 n.8 (2016)).  I may not substitute my discretion for that of CMS in determining whether the revocation is appropriate.  Id. (citing Abdul Razzaque Ahmed, M.D., DAB No. 2261 at 19 (2009), aff’d, Ahmed v. Sebelius, 710 F. Supp. 2d 167 (D. Mass. 2010)).

Here, CMS was authorized to revoke Petitioner’s Medicare enrollment under section 424.535(a)(10).  Petitioner does not dispute that she conducted telemedicine interviews

Page 7

and ordered DMEPOS items for each of the 20 beneficiaries listed on the records request.  Petitioner admits that she has no records related to the listed beneficiaries and, therefore, is unable to produce the records.  Accordingly, I must affirm the revocation.

In the following sections of this decision, I explain why Petitioner’s remaining arguments do not compel a different conclusion.

2. The fact that the UPIC sent the records request to an incorrect address is not material to my decision.

Petitioner argues that she was unable to comply with the requirements imposed by 42 C.F.R. § 424.516(f) for reasons beyond her control.  P. Br. at 9-10.  Petitioner states that the UPIC sent the initial records request and follow-up request to her former employer’s address and that her former employer failed to forward the letters to Petitioner’s current business address.  P. Br. at 8.  Petitioner further states that she did not receive either of the medical record requests until November 23, 2020.  Id. at 8-9.  Not only does she blame her former employer for failing to forward the records requests to her correct mailing address, she also blames her current employer for failing to update her address in CMS’s enrollment database.  P. Br. at 3, 9.  According to Petitioner, “no revocation is justified” because the actions of her current and former employers were beyond her control.  P. Br. at 9-10.  However, neither the incorrect address, nor who was responsible to update it, is material to my decision.  Even had Petitioner received the records request near in time to the date it was sent, she could not have complied with the request because she did not have the requested documents in her possession and would likely have been unable to gain access to them, as she has admitted.  Id. at 8 n.4.

Indeed, contrary to Petitioner’s suggestion that she was prejudiced because the records request was sent to an incorrect address, CMS accepted Petitioner’s representation that she had not previously received the records request.  While Petitioner’s reconsideration request was pending, CMS offered Petitioner another opportunity to submit the requested documentation.  CMS Ex. 6 at 1.  Yet, Petitioner did not, and could not, comply with the request because Petitioner did not have the requested documents.  Petitioner did not keep any medical records related to the work she performed for Pacific Telemed.  P. Ex. 1 at 4 (Matthews’s Decl. ¶ 11); P. Br. at 9.  Therefore, it is immaterial that the records requests were sent to an incorrect address.

3. I have no authority to review CMS’s determination to impose a 10‑year reenrollment bar.

When a supplier’s billing privileges are revoked, she may not participate in the Medicare program until the end of the reenrollment bar, which must be for a minimum of one year but no more than 10 years (except under circumstances not present here), depending on the severity of the underlying offense.  42 C.F.R. § 424.535(c)(1)(i).  In this case, CMS

Page 8

imposed a 10-year reenrollment bar.  Petitioner devotes considerable argument to the contention that a 10-year reenrollment bar violates CMS regulations and guidance and is otherwise unreasonable.  P. Br. at 10-19.  However, the length of a reenrollment bar is not an initial determination subject to administrative review.  See 42 C.F.R. § 498.3(b)(17).  As such, I have no authority to alter the length of the reenrollment bar.  Vijendra Dave, M.D., DAB No. 2672 at 9-12 (2016); accord, Garner, DAB No. 3026 at 16; Lilia Gorovits, M.D., P.C., DAB No. 2985 at 15-16 (2020), aff’d, Gorovits v. Becerra, No. CV 20-1850, 2021 WL 1962903 (E.D. Pa. May 17, 2021).  Petitioner’s arguments do not persuade me otherwise.

Petitioner first argues that CMS’s decision to impose a 10-year reenrollment bar is arbitrary, capricious, and an abuse of discretion.  P. Br. at 10-12.  This argument misunderstands the role of an administrative law judge.  “[T]he arbitrary and capricious standard . . . is an Administrative Procedure Act (APA) standard for review of final agency actions. . . .” NMS Healthcare of Hagerstown, DAB No. 2603 at 6 (2014).  “[N]either CMS’s determination nor the [administrative law judge] Decision is a final agency action . . . .” Id.; see 42 C.F.R. § 498.90.  Furthermore, an administrative law judge’s review of the revocation is limited to whether CMS had a legal basis to revoke Petitioner’s Medicare enrollment and billing privileges.  Letantia Bussell, DAB No. 2196 at 13 (2008).  Thus, the regulations do not authorize me to review whether CMS’s decision to impose a 10-year reenrollment bar was arbitrary and capricious.

Second, Petitioner argues that CMS should have imposed a one-year reenrollment bar because, in Petitioner’s view, her failure to comply with the records request amounts to only one act of noncompliance.  P. Br.at 10-12.  Petitioner argues that CMS has consistently interpreted the language “each act of noncompliance” at 42 C.F.R. § 424.535(a)(ii) to “refer to a single request for documentation from CMS or a contractor[,]” and not the failure to comply with every line item in the records request.  Id. at 11.  According to Petitioner, CMS is bound by that interpretation when imposing a reenrollment bar.  Deviating from this interpretation, Petitioner argues, violates section 1842(h)(9) of the Act and 42 C.F.R. § 424.535(a)(10)(ii), as well as HHS’s Good Guidance Regulation (45 C.F.R. § 1.7).  P. Br. at 12-13.

CMS counters that the 10-year reenrollment bar is justified because, by failing to maintain and produce records for 20 different Medicare beneficiaries, Petitioner committed 20 separate acts of noncompliance.  CMS Br. at 13.  The Young decision implies, without explicitly holding, that failing to produce any requested document violates section 424.516(f).  DAB No. 2750 at 9-10 (supplier did not maintain and provide access to every document requested, thereby failing to comply with the regulations).  This provides some support for the view that each individual document request may represent a separate act of noncompliance.  I need not – indeed, I may not – resolve this question, however, because the length of the reenrollment bar is not an issue subject to my review.

Page 9

4. Petitioner's arguments in equity are not a basis to reverse the revocation of Petitioner’s Medicare enrollment and billing privileges.

To the extent Petitioner argues that revocation of her Medicare enrollment and billing privileges is inequitable under the circumstances presented, CMS’s discretionary act to revoke a provider or supplier is not subject to review based on equity or mitigating circumstances.  Bussell, DAB No. 2196 at 13.  Rather, “the right to review of CMS’s determination by an [administrative law judge] serves to determine whether CMS had the authority to revoke [the provider’s or supplier’s] Medicare billing privileges, not to substitute the [administrative law judge’s] discretion about whether to revoke.”  Id. (emphasis in original).  Once CMS establishes a legal basis on which to proceed with a revocation, then the CMS determination to revoke becomes a permissible exercise of discretion, which I am not permitted to review.  See id. at 10; see also Ahmed, DAB No. 2261 at 19 (if CMS establishes the regulatory elements necessary for revocation, an administrative law judge may not substitute his or her “discretion for that of CMS in determining whether revocation is appropriate under all the circumstances”).  Accordingly, because I have determined that CMS had a legal basis to revoke Petitioner’s Medicare enrollment and billing privileges pursuant to 42 C.F.R. § 424.535(a)(10), the regulations do not authorize me to overturn CMS’s decision to revoke on equitable grounds.

V.    Conclusion

CMS has established grounds for revoking Petitioner’s Medicare enrollment under section 424.535(a)(10):  Petitioner did not comply with the documentation or access requirements of section 424.516(f).  I have no authority to review the reenrollment bar imposed.  I therefore affirm CMS’s determination.

---

Endnotes

¹ Petitioner did not mark the declaration as an exhibit.  However, as I describe below, I admit it as P. Ex. 1.

² The Beneficiary List enclosed with the February 21 letter did not include the precise date of service for each beneficiary.  See CMS Ex. 2 at 5.  Rather, the list included only the date range:  “1/01/2016” to “05/21/2019.”  Id.  However, the list enclosed with the revocation notice identified specific dates of service between November 14, 2018, and March 27, 2019.  CMS Ex. 4 at 4.  Petitioner acknowledges that she was employed by Pacific Telemed during that period.  P. Ex. 1 at 2 (Matthews Decl. ¶ 5).

³ The Provider Enrollment & Oversight Group is a component of CMS itself, not an administrative contractor.

⁴ P. Ex. 1 is not subject to the good-cause requirement at 42 C.F.R. § 498.56(e).  HeartFlow, Inc., DAB No. 2781 at 19 n.13 (2017); Arkady B. Stern, M.D., DAB No. 2329 at 4 n.4 (2010) (“Testimonial evidence that is submitted in written form in lieu of live in-person testimony is not “documentary evidence” within the meaning of 42 C.F.R. § 498.56(e) . . . .”).

⁵ My findings of fact/conclusions of law are set forth, in italics and bold, in the discussion captions of this decision.