Barbara Bradley, DAB CR6261 (2023)

DECISION

Petitioner, Barbara Bradley, a nurse practitioner (NP), 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 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 practitioner who ordered the DMEPOS items.  Petitioner did not produce the requested records.  On this basis, CMS revoked Petitioner’s Medicare billing privileges pursuant to 42 C.F.R. § 424.535(a)(10) and imposed a 3-year reenrollment bar.  Petitioner now appeals. 

I reverse CMS’s determination.  I find that Petitioner is not subject to revocation under 42 C.F.R. § 424.535(a)(10) because Petitioner has proved by a preponderance of the evidence that she was not the practitioner who ordered the DMEPOS items for the 20 Medicare beneficiaries, and thus was not required to produce records for the UPIC when requested.

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I.    Background and Procedural History

Petitioner is a licensed nurse practitioner in the state of Mississippi.  Petitioner’s Exhibit (P. Ex.) 1 at 1 (¶ 1).  The UPIC, Qlarant Integrity Solutions (Qlarant), requested Petitioner provide medical records for 20 Medicare beneficiaries by letter dated December 12, 2019.  CMS Exs. 2, 3.  Qlarant’s letter was addressed to Petitioner at 201 Country Cove Circle, Clinton, Mississippi 39056.  CMS Ex. 2 at 1.  This was the address for Petitioner that was entered in CMS’s Provider Enrollment, Chain, and Ownership System (PECOS) at the time Qlarant sent its initial document request letter.  CMS Ex. 1 at 3; see also CMS Ex. 4 at 2.  In a letter dated February 7, 2020, Novitas Solutions (Novitas) notified Petitioner that her Medicare privileges would be revoked for ten years, effective March 8, 2020, for failure to provide CMS access to documentation under 42 C.F.R. § 424.535(a)(10).  CMS Ex. 5.  Novitas then notified Petitioner by letter dated August 11, 2020, that after reviewing the matter, her re-enrollment bar was reduced from ten years to three years.  CMS Ex. 6. 

Petitioner requested reconsideration by letter dated October 14, 2020.¹  CMS Ex. 7.  In the reconsideration request, Petitioner represented that she did not receive Qlarant’s document request because she no longer lived at the address listed in PECOS.  Id. at 1.  Petitioner also argued that even had she received the document request, she would have been unable to produce the documents because she lost access to her former employer’s document system when she quit her job.  Id.  CMS upheld Petitioner’s revocation of Medicare enrollment and the re-enrollment bar of three years in a reconsideration decision dated December 23, 2020.  CMS Ex. 1. 

Petitioner timely requested a hearing before an administrative law judge.  The Civil Remedies Division acknowledged receipt of Petitioner’s hearing request and issued my Standing Prehearing Order (Prehearing Order).  Consistent with the Prehearing Order, CMS submitted a motion for summary judgment (CMS Br.) and ten proposed exhibits (CMS Exs. 1-10).  CMS did not propose to call any witnesses.  Petitioner submitted her combined prehearing brief and response in opposition to CMS’s motion for summary judgment (P. Br.) along with 3 proposed exhibits (P. Exs. 1-3).  Petitioner submitted her own Declaration as an exhibit.  P. Ex. 1. 

CMS did not file any objection to the admission of Petitioner’s proposed Exhibit 2 in accordance with my Prehearing Order.  However, in its Brief, CMS argues that the document should be excluded as new evidence.  CMS Br. at 14-15.  As CMS points out, 42 C.F.R. § 498.56(e) provides that, in a Medicare enrollment appeal, a supplier may not offer new evidence for the first time at the administrative law judge level absent a

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showing of good cause.  Petitioner does not dispute that she did not offer her proposed Exhibit 2 – or, for that matter, any of her proposed exhibits – with her reconsideration request.  P. Br. at 9-11.  Petitioner nonetheless argues I should find good cause to admit these exhibits.  Id.  Petitioner argues that her proposed Exhibit 2, Petitioner’s Independent Contractor Agreement with her former employer, should be admitted now because Petitioner was representing herself pro se during the previous reconsideration request to CMS, and did not fully understand the need for it based on the revocation notice and the request for records.  Id. at 10-11.  Petitioner argues that her proposed Exhibit 3, a copy of Petitioner’s request for an administrative law judge hearing, should be admitted because it did not exist at the time of the reconsideration proceeding.  Id. at 11. 

I do not find that good cause exists to admit the new evidence proposed as Petitioner’s Exhibit 2.  The fact that Petitioner was unrepresented in the reconsideration request process does not alone establish good cause to now admit newly submitted but previously available evidence.  Novitas’ initial determination revoking Petitioner’s Medicare enrollment stated plainly that Petitioner must submit with her reconsideration request all information that she wished to have considered by the hearing officer or by an administrative law judge.  CMS Ex. 5 at 1 (“This is your only opportunity to submit information during the administrative appeals process”).  Petitioner chose to represent herself at the reconsideration level of review.  If there were issues that she did not understand, she had the option to consult an attorney.  Having decided not to do so, Petitioner’s belated claim of confusion does not establish good cause.  I therefore exclude Petitioner’s proposed Exhibit 2 as required by 42 C.F.R. § 498.56(e)(2)(ii). 

By contrast, I need not find good cause to admit P. Exs. 1 and 3.  P. Ex. 1 is not subject to the good-cause requirement at 42 C.F.R. § 498.56(e) because it represents Petitioner’s written direct testimony.  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) . . . .”). As to Petitioner’s proposed Exhibit 3, her request for appeal is already part of the record in this case.  There is no need for it to be admitted as new evidence.  I therefore do not admit it as an exhibit and will simply refer to it, if needed, as Petitioner’s Request for Hearing (RFH). 

Although CMS has moved for summary judgment, and Petitioner opposes the motion, 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.  CMS did not request to cross-examine Petitioner, the only proposed witness.  Because a hearing is unnecessary, I decide this case on the written record.  I deny CMS’s motion for summary judgment as moot.

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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). 

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). 

CMS has the burden of coming forward with evidence that establishes a prima facie case that the cited basis for the revocation exists.  If CMS meets this burden, “a petitioning provider then has the burden to prove its case, that is, to rebut the basis for the revocation,

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by a preponderance of the evidence.”  Adora Healthcare Services Inc., DAB No. 2714 at 4-5 (2016); see also John A. Hartman, D.O., DAB No. 2911 at 10 (2018). 

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

1. CMS made a prima facie case that Petitioner ordered DMEPOS items for 20 Medicare beneficiaries but did not maintain documentation relating to those orders, and, when the UPIC asked her to provide that documentation, she would not or could not produce it, which violates 42 C.F.R. § 424.516(f).

CMS has produced billing records for Medicare claims of 20 beneficiaries, with names, dates of birth, and Medicare beneficiary numbers, along with the dates of service.  Each of these claims identifies Petitioner as the ordering provider by her name and NPI.  CMS Ex. 2.  Petitioner does not contend that she produced any records related to the identified claims.  Thus, the evidence is sufficient to establish a prima facie case that CMS had authority to revoke Petitioner’s Medicare enrollment.  Nevertheless, Petitioner has produced evidence to rebut CMS’s case, as I explain in the following paragraphs.

2. Petitioner’s testimony is sufficient to overcome CMS’s prima facie case; thus, Petitioner was not required to maintain and produce the requested documentation under 42 C.F.R. § 424.535(a)(10).

Petitioner testified, under penalty of perjury, that she is not the professional who ordered the DMEPOS items identified in Qlarant’s document request.  P. Ex. 1.  Petitioner testified that she did not refer any patients for DMEPOS items or services, and she was not aware that her employer listed her as the ordering provider or referring provider for any of the beneficiaries.  P. Ex. 1 at 4-5 (¶¶ 8-11).  Petitioner avers that she “never billed Medicare or any other federal payor for any items or services” while working for her former employer and did not intend for her employer to bill anything using her name or identifying information.  Id. at 5 (¶ 12). 

CMS did not request to cross-examine Petitioner.  Nor did CMS offer the written direct testimony of any Qlarant investigator or CMS official to establish facts that call the veracity of Petitioner’s testimony into question.  Thus, Petitioner’s testimony is unrebutted on the record.  Instead, CMS has offered only argument and innuendo in attempting to persuade me that Petitioner’s testimony is not credible. 

CMS points out that, in her reconsideration request, Petitioner did not dispute that she was the ordering professional for the claims described in the records request.  CMS Br. at 16.  CMS argues that Petitioner’s explanation for not earlier raising this defense “strains credibility to the breaking point.”  Id. at 17.  CMS’s position fails to come to grips with the fact that Petitioner testified that she neither treated the beneficiaries nor ordered the

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DMEPOS items described in the records request.  If CMS doubted the credibility of this testimony, it was incumbent upon CMS to cross-examine Petitioner or produce testimony of its own witness(es) to demonstrate that I should not accept Petitioner’s testimony at face value.²  CMS chose not to avail itself of these opportunities to test Petitioner’s credibility and it must bear the consequences of that choice. 

In the absence of evidence that Petitioner’s testimony is unreliable, I accept it as probative.  I therefore find by a preponderance of the evidence that Petitioner did not treat the named beneficiaries and did not order DMEPOS items for them.  Accordingly, she was not required to maintain or provide the requested documentation under 42 C.F.R. § 424.535(a)(10).

3. CMS may not revoke Petitioner’s Medicare enrollment under 42 C.F.R § 424.535(a)(10).  

Under the regulations, the “‘eligible professional who signed the order or certification is responsible for maintaining and disclosing the documentation.’”  George M. Young, DAB No. 2750 at 10 (2016) (quoting 77 Fed. Reg. 25,284, 25,310 (Apr. 27, 2012)).  Petitioner’s testimony excludes the possibility that she ordered DMEPOS items for any of the Medicare beneficiaries for whom the UPIC requested records. 

The DAB has consistently held 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).  William Garner, M.D., DAB No. 3026 at 16 (2020); Norman Johnson, M.D., DAB No. 2779 at 11 (2017), and cases cited therein.  Here, Petitioner has proved by a preponderance of the evidence that she was not the ordering professional of the DMEPOS items.  As such, she was not required to maintain or produce the requested records, and CMS was therefore not authorized to revoke her Medicare enrollment.

4. Whether or not the UPIC sent the medical records requests to Petitioner’s correct address is not material to my decision.

CMS makes much of the fact that Petitioner’s reconsideration request argues only that Petitioner never received the document request, rather than stating that she never treated the beneficiaries at issue.  CMS Br. at 16; see also CMS Ex. 7.  In the reconsideration

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request, Petitioner contended that she did not receive the document request because it was sent to an old address.  CMS Ex. 7 at 1.  However, it is apparent that even if the records request had been sent to the correct address, Petitioner could not have produced the records.  Ultimately, however, this is immaterial because, as I have found above, Petitioner was not the practitioner who ordered the DMEPOS items and was therefore not required to comply with the requirements of section 424.516(f). 

V.    Conclusion

Petitioner has proved by a preponderance of the evidence that she was not the ordering professional for the DMEPOS items for the 20 Medicare participants at issue in this case, and was therefore under no obligation to maintain or produce documentation for those orders.  Thus, CMS did not have grounds for revoking Petitioner’s Medicare enrollment under section 424.535(a)(10).  I therefore reverse CMS’s determination.

Endnotes

¹ Petitioner did not file the reconsideration request within 60 days after the presumed date of receipt of the revocation notice.  However, CMS granted a good cause waiver for the untimely submission of Petitioner’s reconsideration request.  CMS Ex. 1 at 1.

² In its brief, CMS points to inconsistencies between the arguments advanced in Petitioner’s hearing request and those advanced in her reconsideration request.  Of course, when CMS filed its brief, CMS had not yet seen Petitioner’s declaration.  Yet, even after Petitioner filed her declaration, CMS did not request to cross-examine her, as permitted under my standing order, or request leave to offer supplemental witness testimony of its own to rebut what CMS apparently viewed as a new defense.