Mareck Family and Geriatric Services, PC, CR6457 (2024)

DECISION

Wisconsin Physicians 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, Mareck Family and Geriatric Services, PC, pursuant to 42 C.F.R. § 424.535(a)(8)(ii) because Petitioner submitted claims that failed to meet Medicare requirements.  WPS also added Petitioner to CMS’s Preclusion List.  CMS subsequently issued a reconsidered determination that upheld WPS’s determinations.  I affirm the revocation of Petitioner’s Medicare enrollment and billing privileges and its placement on the Preclusion List.  

I. Background and Procedural History

Petitioner provides in-home psychotherapy services. CMS Exs. 4 at 1; 27 at 5.

The First Claims Review

In a letter dated December 6, 2019, AdvanceMed, a Unified Program Integrity Contractor (UPIC) for CMS, informed Petitioner that it had requested records from Petitioner for dates of service from January 1 through April 30, 2019, and reviewed 30 claims that included 41 services.  CMS Ex. 5 at 2; see CMS Exs. 4 at 5 (notes from on-site

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interviews conducted by AdvanceMed); 5 at 8 (May 22, 2019 letter requesting specific documentation). AdvanceMed explained to Petitioner that its review “was prompted by receipt of information that suggests [it is] improperly billing psychotherapy services.”  CMS Ex. 5 at 1.  AdvanceMed determined that based on the claims and supporting documentation it had received, the medical review resulted in the general findings of “Services Not Reasonable and Necessary,” “Required Elements Not Documented,” “Services Not Rendered,” and “Absent Signatures.” CMS Ex. 5 at 2.  AdvanceMed reported that it had identified overpayments made to Petitioner.  CMS Ex. 5 at 2.   Documentation appended to the letter addressed, in detail, multiple reasons supporting the denial of each of the 30 claims that were the subject of AdvanceMed’s post-payment review.  CMS Ex. 5 at 13-105.  AdvanceMed provided a detailed explanation and education regarding the bases for the denied claims, as exemplified by the following excerpt from its review of one claim: 

Denied. The service was not reasonable and necessary.  The beneficiary’s medical record must contain documentation that fully supports the medical necessity for this service.  To support reasonable and necessary psychotherapy services, elements such as treatment plans, functional status, and prognostic assessment are expected to be documented, updated, and available for review.  When services are provided at a high frequency or long duration, the plan of treatment, progress notes, and the condition of the beneficiary should justify the intensity of the services rendered.  Methods of monitoring outcome should be included in the medical record.  The Medicare Claims Processing System showed that the beneficiary had received psychotherapy services since October 2017.

The documentation requirements of the Wisconsin Physicians Service Insurance Corporation’s Local Coverage Determination L34616 Psychiatry and Psychology were not met.  The provider submitted daily treatment notes but did not submit the supporting documentation for the service billed.  The daily progress note was missing the treatment modalities, the beneficiary’s ability to participate in treatment and the beneficiary’s response to the treatment modalities.  In addition, the plan of care noted that the provider was working with beneficiary to open up about his past abuse.  However, the documentation did not include the date these goals were established and objective measurements.  There was no documentation indicating how psychotherapy services would help the beneficiary achieve these goals (i.e., there was no plan of treatment that specified what therapeutic modality would be used or how often the service would be provided).  Although the beneficiary had been in treatment since 2017, there was no indication that the treatment plan was reviewed and changes in treatment modalities considered relative to the status of the goals.  Therefore, the service was denied.

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In addition, the progress note was not authenticated by the performing provider.

CMS Ex. 5 at 25-26 (addressing a claim with a March 26, 2019 date of service for which Petitioner had been reimbursed $79.39).  

AdvanceMed reported that its review determined that Petitioner had been overpaid $3,043.10.  CMS Ex. 5 at 3.  At the conclusion of its letter, AdvanceMed cautioned that “we remind you that the regulation at 42 [C.F.R. § ]424.535 authorizes us to revoke Medicare billing privileges under certain circumstances,” to include “if CMS determines that the provider or suppler has a pattern or practice of submitting claims that fail to meet Medicare requirements.”  CMS Ex. 5 at 6.

In separate letters dated December 18 and 19, 2019, WPS informed Petitioner of overpayments that totaled $3,043.10.  CMS Exs. 7 at 1; 8 at 1.  The letters included appended lists of claims that were the basis for the overpayment determination.  CMS Exs. 7 at 7-16; 8 at 7; see CMS Ex. 5 at 14-444 (list of claims that were the subject of AdvanceMed’s post-payment review that included supporting reasons).  WPS informed Petitioner that it could file a rebuttal within 15 days, which is “the opportunity, before the suspension of payment, offset, or recoupment takes effect, to submit any statement (to include any pertinent information) as to why it should not be put into effect on the date specified in the notice.”  CMS Exs. 7 at 2; 8 at 2.  WPS also informed Petitioner that “if you disagree with this overpayment decision, you may file an appeal.”  CMS Exs. 7 at 4; 8 at 4.  WPS explained that “[t]he first level of appeal is called a redetermination,” and that it “must file [its] request for a redetermination 120 days from the date of this letter.”  CMS Exs. 7 at 4; 8 at 4.  WPS informed Petitioner that in order to avoid recoupment, a request for redetermination must be filed within 30 days.  CMS Exs. 7 at 4; 8 at 4.  Petitioner claimed in its request for reconsideration that it had filed a redetermination request.  CMS Ex. 3 at 8, 60, 65;¹ but see CMS Ex. 29 at 2 (testimony that Petitioner did not attempt to appeal until November 2, 2022, and that WPS dismissed the request “due to not meeting the timeliness requirements for requesting an appeal”); CMS Ex. 25 (WPS dismissal of untimely request for redetermination based on lack of good cause). 

The Second Claims Review

In a letter dated March 2, 2021, CoventBridge Group, another UPIC, informed Petitioner that it had requested records from Petitioner for dates of service from January 6, 2019 through April 1, 2020, and reviewed 30 claims that included 80 services.  CMS Ex. 9 at 2; see CMS Ex. 9 at 13 (October 15, 2020 letter requesting documentation).

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CoventBridge explained that its review “was prompted by data analysis that indicated that you continued to bill psychotherapy services that are not reasonable and necessary even after previous education.”  CMS Ex. 9 at 2.  CoventBridge determined that based on the claims and supporting documentation it had received, the medical review resulted in the general findings of “Services Not Reasonable and Necessary,” “Services Not Rendered as billed,” and “Services Related to Non-Covered/Denied Primary Services.”  CMS Ex. 9 at 2.  CoventBridge reported a 67.5 percent claim line denial rate for “Services Not Reasonable and Necessary,” a 6.25 percent claim line denial rate for “Services not Rendered as Billed,” and a 7.5 percent claim line denial rate for “Services Related to Non-Covered/Denied Primary Services.”  CMS Ex. 9 at 2, 5, 8.

Documentation appended to the letter addressed, in detail, multiple reasons supporting the denial of claims based on post-payment review.  CMS Ex. 5 at 21-187.  The letter also included detailed “claim examples” (CMS Ex. 5 at 5-8), that include the following discussion of a claim with a date of service of January 7, 2020, which is representative of the level of detail provided in the discussion of each claim denial:  

Documentation does not support that the billed service [w]as reasonable and necessary.  Current Procedural Terminology (CPT) code 90837 is defined as "Psychotherapy, 60 minutes with patient." The diagnosis code submitted with the claim was F331-major depressive disorder, recurrent, moderate.

The submitted documentation did not support the billed service was rendered as billed.  The billed service was not supported as reasonable and necessary and documentation requirements as established in local coverage determination (LCD) L34616 for Psychiatry and Psychology Services V32 (Rev. Eff. 10/13/2019) were not met.

The recorded start and stop time of the session was 3:00-3:50. The CPT code billed; 90837 is a timed code, defined as “Psychotherapy, 60 minutes with patient.”, which is defined as 53+ minutes. The session duration was documented as 50 minutes, 3:00-3:50.  Therefore, the billed code could not be validated as a 60-minute code and the service was not supported as rendered as billed.

The billed service was not supported as reasonable and necessary and documentation requirements as established in local coverage determination (LCD) L34616 for Psychiatry and Psychology Services V32 (Rev. Eff. 10/13/2019) were not met.

The initial assessment dated 10/30/2019, included a Treatment Plan with a goal of decreasing depression by 50%. The provider indicated the patient

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emotional mood as depressed and anxious, with constricted affect and PHQ-9 score of 14.  The psychosocial assessment and recommendations were documented as “appropriate for counseling to improve needs.”  The plan documented frequency and duration for the therapy as 55min+ visits, weekly tapering to biweekly for one year.  The patient plan included to attend sessions as scheduled, report progress to the therapist, do a medical evaluation and develop a plan to increase pleasurable activity level.  The type of therapeutic maneuvers to be utilized were not identified.  The patient’s capacity to participate in and benefit from therapy was not recorded and neither was the rationale why the chosen therapy is the appropriate treatment modality (either in lieu of, or in addition to, another form of psychiatric treatment). 

Noted from Multi Carrier System (MCS) data, the provider has billed code 90837 for greater than 19 dates of service from 3/25/2019 – 5/19/2020. The patient had been receiving psychotherapy services for over a year with no measurable assessment toward progress and goals. An updated treatment plan was not submitted with the documentation. LCD L34616 states “a periodic summary of goals, progress toward goals, and an updated treatment plan must be included in the medical record. Prolonged treatment must be well supported by the content of the medical documentation. Documentation must be present in the medical record supporting the medical necessity for ongoing treatment.

Documentation submitted for the date of service under review; 1/21/2020, included a templated counseling progress note, with patient being seen by [a licensed master social worker] from 3:00 -3:50 at the patient's home.

The provider noted patient discussion of patient wanting a dog, but due to health, could not maintain a dog.  The provider indicated patient increased depression and anger during the session, noting “progress slow.”  The provider noted discussion of methods to improve mood and improve sense of hope.  Chief symptoms discussed were noted as depressed mood, loss of pleasure, worthlessness, poor concentration, hopelessness, impaired memory, fatigue, worry anxiety, loneliness, poor sleep and constricted affect.  The treatment utilized included encouragement/support, strategizing, validating, problem solving, insight, reflective listening, communication skills, mindfulness, stress reducing, cognitive strategy and CBT. The provider noted no changes to the treatment plan and the response to the session as positive.  Although the note states that patient prognosis with treatment as fair, and progress as no change; there were no measurable values to assess improvement toward goals.

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Review of the record found the individual sessions notes to be general in nature.  They did not expound upon how effective that course of treatment was for that individual patient, or whether the treatment would be modified going forward.  There is also no documentation as to how the therapy sessions would improve this individual patient’s problem areas and how the improvement would be evaluated.  No documentation is present which indicates if the beneficiary had met any goals or objectives since the initial 10/30/2019 assessment. Therefore, the billed service is denied as not reasonable and necessary of the billed psychotherapy service.

As a basis for Medicare payment, the provider must furnish to the intermediary or carrier sufficient information to determine whether payment is due and the amount of payment.  When the documentation does not meet the criteria for the service rendered or the documentation does not establish the medical necessity for the service, such service will be denied as not reasonable and necessary under Section 1862(a)(1)(A).  No Medicare payment shall be made for items or services which are not reasonable and necessary for the diagnosis or treatment of illness or to improve the functioning of a malformed body member. Therefore, the billed service is denied as not reasonable and necessary.

CMS Ex. 9 at 5-6.

CoventBridge reported that its review determined that Petitioner had been overpaid $4,074.46.  CMS Ex. 9 at 9.  At the conclusion of its letter, CoventBridge cautioned, just as AdvanceMed had cautioned the previous year (CMS Ex. 5 at 6), that “the regulation at 42 [C.F.R. § ]424.535 authorizes us to revoke Medicare billing privileges under certain circumstances,” to include “if CMS determines that the provider or suppler has a pattern or practice of submitting claims that fail to meet Medicare requirements.”  CMS Ex. 9 at 12. 

In letters dated March 9, 10, 11, and 17, 2021, WPS informed Petitioner of overpayments that totaled $4,187.11.  CMS Exs. 11-15.  WPS informed Petitioner that it could file a rebuttal within 15 days.  CMS Exs. 11 at 2; 12 at 2; 13 at 2; 14 at 2; 15 at 2.  WPS also informed Petitioner that “if you disagree with this overpayment decision, you may file an appeal” within 120 days.  CMS Exs. 11 at 4; 12 at 4; 13 at 4; 14 at 4; 15 at 4.  WPS informed Petitioner that in order to avoid recoupment, a request for redetermination must be filed within 30 days.  CMS Exs. 11 at 4; 12 at 4; 13 at 4; 14 at 4; 15 at 4.  Petitioner conceded that it did not submit a timely redetermination request.  Request for Hearing at 3-4; see CMS Exs. 3 at 92 (request for redetermination dated October 26, 2022); 23 at 1 (WPS’s dismissal of untimely request for redetermination based on a lack of good cause).

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The Third Claims Review

On January 19, 2022, CoventBridge requested another set of records for a post-payment review.  CMS Ex. 16 at 1.  At that time, CoventBridge explained that it “is reopening the claims associated with the beneficiaries referenced on the enclosed list for good cause . . . based on credible evidence regarding data analysis findings.”  CMS Ex. 16 at 2.  CoventBridge reported that it was “requesting additional information to properly evaluate the Medicare claims submitted for payment.”  CMS Ex. 16 at 3.  Prior to issuing a post-payment determination on the newly requested set of claims, CoventBridge notified Petitioner, on September 19, 2022, that it had suspended Petitioner’s Medicare payments effective September 12, 2022, based on “credible allegations of fraud.”  CMS Ex. 17 at 1.  CoventBridge explained that “a medical review of 30 claims and 78 claim lines which resulted in [a] 100% claim denial rate confirmed that [Petitioner] is billing Medicare for services that are not reasonable and necessary, despite two previous educations from [UPICs] on December 6, 2019 and March 2, 2021.”  CMS Ex. 17 at 1; compare CMS Ex. 20 at 1-3 (list of denied claims) with CMS Ex. 16 (list of beneficiaries and claim dates that were the subject of CoventBridge’s January 2022 records request). 

On January 18, 2023, CoventBridge notified Petitioner that CMS had directed it to terminate the payment suspension that had been in effect.  CMS Ex. 18 at 1.  That same day, in a separate letter, CoventBridge provided notice of the results of its medical review of both actual and extrapolated overpayments.  CMS Ex. 19.  CoventBridge explained that the third post-payment review, which had been based on a non-statistical sample of “30 claims/78 claim line items resulted in 100% medical review error rate and an actual overpayment of $6,026.16.”  CMS Ex. 19 at 4.  CoventBridge explained that it had requested additional records on September 19, 2022, in connection with a statistical sampling for overpayment estimation (SSOE) of claims that resulted in a “100% denial rate and an extrapolated overpayment of $1,343,997.00.”² CMS Ex. 19 at 4.

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The Revocation

In an August 24, 2022 initial determination, WPS revoked Petitioner’s Medicare enrollment and billing privileges, effective September 23, 2022, pursuant to 42 C.F.R. § 424.535(a)(8)(ii).  CMS Ex. 2.

WPS included three enclosures that included “sample[s] of noncompliant billing,” consisting of lists of claims that had been denied upon post-payment review.  CMS Ex. 2 at 1, 5-7. WPS provided the following explanation supporting its revocation determination:

[CMS] has determined that [Petitioner] has engaged in a pattern or practice of submitting claims that fail to meet Medicare requirements, in violation of 42 CFR 424.535(a)(8)(ii). Despite repeated instances of specific and targeted education, [Petitioner] has failed to meet Medicare requirements by submitting noncompliant claims with documentation that is insufficient to support that the services were reasonable or necessary.

A review of [Petitioner’s] submitted claims was conducted.  This review consisted of 30 claims with dates of service from March 18, 2019 through April 1, 2019.  Of the 30 claims reviewed, 30 were denied as the documentation did not support that the services were reasonable and necessary.  A sample of the noncompliant billing is reflected on the attachment titled Enclosure A. In a letter dated December 6, 2019, [Petitioner] was educated regarding the submission of these noncompliant billings.

An additional review of [Petitioner’s] submitted claims was conducted. This review consisted of 25 claims with dates of service from January 7, 2020 through February 14, 2020.  Of the 25 claims reviewed, 18 were denied as the documentation did not support that the services were reasonable and necessary.  A sample of the noncompliant billing is reflected on the attachment titled Enclosure B. In a letter dated March 2, 2021, [Petitioner] was educated regarding the submission of these noncompliant billings.

An additional review of [Petitioner’s] submitted claims was conducted. This review consisted of 30 claims with dates of service from May 26, 2021 through December 9, 2021. Of the 30 claims reviewed, 30 were denied as the documentation did not support that the services were reasonable and necessary. A sample of the noncompliant billing is reflected on the attachment titled Enclosure C.

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Despite several instances of specific education, which detailed the correct billing procedures for medical necessity, [Petitioner] has continued to submit claims that fail to meet Medicare requirements.  Evidenced by the continued high percentage of submitted claims that were denied and the specific facts surrounding said non-compliance over which the pattern has continued, [Petitioner’s] above billing behavior constitutes a violation of 42 CFR 424.535(a)(8)(ii), and therefore, CMS has determined that the provider, “has a pattern or practice of submitting claims that fail to meet Medicare requirements…

CMS Ex. 2 at 1-2.

WPS informed Petitioner that, pursuant to 42 C.F.R. §§ 422.2, 422.222, 423.100, and 423.120(c)(6), it would be added to CMS’s Preclusion List.  CMS Ex. 2 at 2.  WPS also barred Petitioner from re‑enrolling in the Medicare program for a period of 10 years.  CMS Ex. 2 at 4. 

Petitioner, through its then-counsel, submitted a request for reconsideration dated October 28, 2022.  CMS Ex. 3.  Among its arguments, Petitioner claimed that “the allegedly high denial rates are not an indictment of [Petitioner], but of the contractors’ complete failure to educate [Petitioner] how to improve.”  CMS Ex. 3 at 15; see also CMS Ex. 3 at 16 (“The only pattern was the contractors’ failure to educate and provide [Petitioner] the opportunity to improve its documentation.”).  Petitioner based its discussion in the “Law and Analysis” section of its submission on a version of 42 C.F.R. § 424.535(a)(8)(ii) that was no longer in effect at the time of the revocation determination.  CMS Ex. 3 at 13-17; see 86 Fed. Reg. 64,996, 65,334 (Nov. 19, 2021) (January 1, 2022 effective date of revisions to 42 C.F.R. § 424.535(a)(8)(ii)).

CMS, through its Provider Enrollment & Oversight Group, issued a reconsidered determination on February 15, 2023, in which it upheld the revocation of Petitioner’s Medicare enrollment and billing privileges pursuant to 42 C.F.R. § 424.535(a)(8)(ii) and its placement on the Preclusion List. CMS Ex. 1.

Petitioner, through counsel, filed a request for an administrative law judge (ALJ) hearing on March 24, 2023. Thereafter, the Civil Remedies Division acknowledged receipt of Petitioner’s request for hearing and issued my Standing Pre-Hearing Order (Pre-Hearing Order) directing the parties to file pre-hearing exchanges in accordance with specific requirements and deadlines.  CMS filed a motion for summary judgment and pre-hearing brief, along with 29 proposed exhibits (CMS Exs. 1-29), to include the written direct testimony of two witnesses (CMS Exs. 28 and 29).  Petitioner, after its counsel withdrew

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from representation, filed a brief and six noncompliant exhibits.³  In the absence of any evidentiary objections, I admit CMS Exs. 1-29 and P. Exs. 1-6 into the evidentiary record.

Petitioner has not requested an opportunity to cross-examine CMS’s witnesses, and therefore a hearing for the purpose of cross-examination is unnecessary. Pre‑Hearing Order §§ 12-14. I consider the record to be closed and the matter ready for a decision on the merits.⁴

II.  Issues

Whether CMS had a legitimate basis to uphold the revocation of Petitioner’s Medicare enrollment and billing privileges pursuant to 42 C.F.R. § 424.535(a)(8)(ii).  

Whether CMS had a legitimate basis to uphold Petitioner’s placement on its Preclusion List pursuant to 42 C.F.R. §§ 422.2 and 423.100. 

III. Jurisdiction

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

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

1. Petitioner was a clinic/group practice that was enrolled in the Medicare program and provided in-home psychotherapy services.
2. In December 2019 AdvanceMed notified Petitioner that it had conducted a post-payment review of 30 claims that included 41 services, all with dates of service in March and April 2019, and determined that all of the claims should be denied because services were not reasonable and necessary, necessary elements were not documented, services were not rendered, and signatures were absent.  At that time, AdvanceMed informed Petitioner that its billing

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privileges could be revoked if CMS determined it had a pattern or practice of submitting claims that fail to meet Medicare requirements.

3. Petitioner has not demonstrated that it timely appealed the denial of these claims, and WPS dismissed an appeal received in November 2022 as untimely.
4. In March 2021 CoventBridge notified Petitioner that it had conducted a post-payment review of 30 claims that included 80 services, all with dates of service between January and February 2020, and determined that 60 of the 80 claimed services were not reasonable and necessary,  not rendered as billed, and/or related to non-covered/denied primary services.  At that time, CoventBridge again informed Petitioner that its billing privileges could be revoked if CMS determined it had a pattern or practice of submitting claims that fail to meet Medicare requirements.
5. Petitioner conceded that it did not timely appeal the claim denials resulting from the March 2021 post-payment review; WPS dismissed an appeal received in November 2022 as untimely.
6. In September 2022 CoventBridge notified Petitioner that it had conducted another post-payment review of 30 claims that included 78 services, all with dates of service between June and December 2021, and determined that all of the claims should be denied because the billed services were not reasonable and necessary.
7. WPS revoked Petitioner’s Medicare enrollment and billing privileges effective September 23, 2022, pursuant to 42 C.F.R. 
   § 424.535(a)(8)(ii) and informed Petitioner that it would be placed on the Preclusion List pursuant to 42 C.F.R. §§ 422.2 and 423.100.
8. On February 15, 2023, CMS upheld the revocation of Petitioner’s Medicare enrollment and billing privileges and its placement on its Preclusion List.
9. Petitioner engaged in a pattern or practice of submitting claims that failed to meet Medicare requirements when it repeatedly did not submit required documentation supporting that it billed services that were reasonable and medically necessary, and CMS had a legitimate basis to uphold the revocation of Petitioner’s Medicare enrollment and billing privileges pursuant to 42 C.F.R. § 424.535(a)(8)(ii).

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10. Petitioner has not presented any legal or factual arguments disputing its inclusion on the Preclusion List.
11. Because Petitioner’s Medicare enrollment has been revoked and it has been barred from re-enrollment, and the conduct underlying its revocation is detrimental to the best interests of the Medicare program, CMS had a legitimate basis to uphold Petitioner’s placement on the Preclusion List pursuant to 42 C.F.R. §§ 422.2 and 423.100.

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 if CMS determines that certain circumstances exist.  42 C.F.R. § 424.535(a).  Relevant to this case, CMS may revoke a supplier’s billing privileges when it determines that the supplier has abused its billing privileges. 42 C.F.R. § 424.535(a)(8).

In November 2021 the Secretary substantially revised section 424.535(a)(8), explaining, among other things, that the wording of the regulation “hampered” its ability to revoke certain suppliers and that non-compliant billing for relatively brief periods can harm the Medicare program.  86 Fed. Reg. 64,996, 65,334 (Nov. 19, 2021).  The Secretary explained that it revised 42 C.F.R. § 424.535(a)(8)(ii)(A) “to focus on the percentage of denials within subsets of the provider’s or supplier’s claim submissions rather than across the entire universe of their claim submissions.”  86 Fed. Reg. at 65,334.  The Secretary further explained that the predecessor version of that provision “inhibits our capacity to target brief periods involving a significant percentage of denied claims” because this factor had been interpreted “to require said percentage to be weighed against the entire period of the provider’s or supplier’s enrollment.”  Id.  The Secretary also discussed that the revised regulation “would better enable CMS to address these non-compliant periods by restricting the scope of denial percentages to a shorter duration.”  Id.  The rulemaking removed subsection 424.535(a)(8)(ii)(B) because the reason for a claim denial is not ‘particularly germane,” and also removed subsection 424.535(a)(8)(ii)(D) “altogether” because “short but very intense periods of improper billing can endanger the Medicare program no less than a longer pattern of non-compliant yet merely moderate-volume billing.”  Id.   The Secretary also removed subsection (E) pertaining to the length of the provider or supplier’s enrollment, explaining that the length of enrollment has no bearing with the “main issue” being “the behavior itself and not the period of enrollment.”  86 Fed. Reg. at 65,335.  The rulemaking added a new provision in subsection (C) that allows CMS to “consider the type of billing non-compliance and the precise facts surrounding said non-compliance (to the extent this can be determined).”  Id.

Addressing comments received from the public, the Secretary stated that “providers and suppliers have a responsibility to always submit correct claims,” and that repeated non-

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compliant billing for a “comparatively short [period] does not remove this responsibility.”  86 Fed. Reg. at 65,335.  The Secretary further explained that “the core consideration is the incorrect claim submission itself rather than the reason it occurred.” And that “[e]ven if a series of non-compliant claims did not involve any deceit by the provider or supplier, the fact remains that the latter did not adhere to Medicare claim submission requirements.”  Id.   The Secretary further addressed a concern that the previous version of the regulation “hinder[ed] us from effectively dealing with very brief but significant billing non-compliance to which our proposal was aimed.”  Id.   Finally, the Secretary, in response to a comment requesting that a provider or supplier first be given an opportunity to correct its errors or that CMS be required to provide advance notice of its concerns, stated,  “If the provider or supplier is submitting non-compliant claims, it is the provider’s or supplier’s responsibility to remedy the matter on its own initiative; respectfully, it is not CMS’s obligation to delay a crucial program integrity measure, such as revocation, to enable to provider or supplier to execute steps that it should have taken previously.  86 Fed. Reg. 65,336.

The revised version of 42 C.F.R. § 424.535(a)(8)(ii) that became effective on January 1, 2022, allows CMS to revoke enrollment and billing privileges under the following circumstances:

(ii)  CMS determines that the provider or supplier has a pattern or practice of submitting claims that fail to meet Medicare requirements.  In making this determination, CMS considers, as appropriate or applicable, the following:

(A) The percentage of submitted claims that were denied during the period under consideration.

(B) Whether the provider or supplier has any history of final adverse actions and the nature of any such actions.

(C) The type of billing non-compliance and the specific facts surrounding said non-compliance (to the extent this can be determined).

(D) Any other information regarding the provider or supplier’s specific circumstances that CMS deems relevant to its determination.

42 C.F.R. § 424.535(a)(8)(ii).

When a provider or supplier’s enrollment has been revoked, CMS is authorized to impose a bar on reenrollment for a minimum of one year, but no more than ten years.  42 C.F.R. § 424.535(c)(1)(i).

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Additionally, CMS has established a single list of individuals and entities for whom Medicare Advantage plans cannot provide reimbursement for items and services they provide, and for prescribers to whom Medicare Part D plans cannot provide reimbursement for any prescriptions the individuals write.  42 C.F.R. §§ 422.222,  423.120(c)(6).  As relevant here, in order for CMS to include an individual, entity, or prescriber on its preclusion list, all of the following three requirements must be met:

(i) The [individual, entity, or prescriber] is currently revoked from Medicare for a reason other than that stated in [42 C.F.R.] § 424.535(a)(3)...

(ii) The [individual, entity, or prescriber] is currently under a reenrollment bar under [42 C.F.R] § 424.535(c).

(iii) CMS determines that the underlying conduct that led to the revocation is detrimental to the best interests of the Medicare program.  In making this determination under this paragraph ..., CMS considers the following factors:

1. The seriousness of the conduct underlying the...revocation.
2.  The degree to which the...conduct could affect the integrity of the [Medicare/Part D] program.
3.  Any other evidence that CMS deems relevant to its determination...

42 C.F.R. §§ 422.2, 423.100.

WPS informed Petitioner that it had revoked its Medicare enrollment and billing privileges based on a pattern or practice of submitting claims that failed to meet Medicare requirements, as evidenced by the denial of more than 100 services over two separate post-payment reviews.  See 42 U.S.C. §§ 1395g(a) (“no such payments shall be made to any provider unless it has furnished such information as the Secretary may request in order to determine the amount due such provider”); 1395l(e) (“No payment shall be made to any provider of services . . . unless there has been furnished such information as may be necessary in order to determine the amounts due such provider . . . .”); 1395y(a)(1)(A) (excluding payments “for items or services [that] are not reasonable and necessary for the diagnosis or treatment of illness or injury . . . .”).

In the first review, AdvanceMed denied 41 out of 41 services provided between March and April 2019.  CMS Ex. 5 at 2; 16-101.  In the second review, CoventBridge denied 60 out of 80 services provided between January and February 2020.  CMS Ex. 9 at 2, 21-23,

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24-187. A third review by CoventBridge of 78 services provided between November and December of 2021 yielded a 100 percent denial rate.⁵ CMS Exs. 19 at 4; 20 at 1-3.

Despite Petitioner’s claim that it timely filed a redetermination request to appeal the claims denied in the first post-payment review, the evidentiary record does not support this claim.  Petitioner, with its reconsideration request, submitted an unsigned letter bearing a date of January 13, 2020, without any accompanying documentation demonstrating that the letter had been submitted on January 13, 2020, such as postal delivery confirmation.  CMS Ex. 3 at 60.  Petitioner’s owner and CEO, in a declaration submitted in support of the reconsideration request, did not report that he filed the redetermination request on January 13, 2020, but rather reported that “Mareck” filed it “on or about” that date.⁶ CMS Ex. 3 at 65.  Although the owner and CEO discussed seven different calls to WPS in which he inquired about the “status of our appeal” (CMS Ex. 3 at 65), a WPS Director of Operations testified that WPS logs all incoming telephone calls, to include the date and time of the call, and that Petitioner’s two telephone calls to WPS involved access to the WPS-GHA portal.  CMS Ex. 29 at 2.  With respect to Petitioner’s claim that it had timely filed a redetermination request, the Director of Operations testified that WPS did not receive a copy of the redetermination

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request dated January 13, 2020, until November 2, 2022. CMS Ex. 29 at 2.  Petitioner did not request an opportunity to cross-examine this witness.  Inasmuch as Petitioner has not claimed the specific date it mailed its request for reconsideration, has not submitted any proof of mailing, and CMS has submitted unrebutted testimony that a redetermination request was not received until November 2, 2022, and that WPS’s records do not support that Petitioner called seven times to inquire about the status of an appeal, the evidence does not support that Petitioner timely filed a redetermination request.  WPS dismissed the untimely reconsideration request (CMS Ex. 25), and the denials resulting from the first post-payment review are final.

Petitioner concedes it did not timely request redetermination of the claims denied as a result of the second post-payment review.  WPS dismissed the untimely redetermination request (CMS Ex. 23), and those denied claims are final.

CMS appropriately considered the factors at 42 C.F.R. § 424.535(a)(8)(ii) when it determined that Petitioner had a pattern or practice of submitting claims that fail to meet Medicare requirements.

A very high percentage of the submitted claims were denied during the period under consideration.

CMS determined that “consistently high denial rates indicate that [Petitioner] engaged in a pattern or practice of submitting claims that failed to meet Medicare requirements.”  CMS Ex. 7 at 1.  The first post-payment review denied 41 out of 41 services provided in March and April of 2019 (CMS Ex. 5 at j-15), and the second post-payment review resulted in the denial of 60 out of 80 services provided between January and February of 2020.  CMS Ex. 9 at 21-23.  The denial of 100 percent and 75 percent of services over successive post-payment reviews represents an extremely high denial percentage.  Based on the language of 42 C.F.R. § 424.535(a)(8)(ii), a high percentage of denied claims supports a pattern or practice of filing claims that do not meet Medicare requirements. 

Although Petitioner broadly disputes that the claims should not have been denied, it does not challenge that the percentage of claims denied upon post-payment review was very high.  Nor does Petitioner argue that CMS misapplied this factor.  The evidence supports that a very high percentage of claims were denied through the first two post-payment reviews.  42 C.F.R. § 424.535(a)(8)(ii)(A).

The record does not indicate a history of final adverse actions outside of the instant revocation.

The record does not contain any evidence that Petitioner has been the subject of any other final adverse action.  42 C.F.R. § 424.535(a)(8)(ii)(B).

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The type of billing noncompliance and the facts surrounding the billing noncompliance supports that Petitioner engaged in a pattern or practice of filing claims that do not meet Medicare requirements.

CMS considered that “the reviews conducted found that there was insufficient documentation to support the medical necessity and reasonableness of the services provided.”  CMS Ex. 1 at 7.  CMS discussed that reasons for claim denials included that there was a lack of documentation to support that the services were reasonable and necessary, documentation lacked required elements or signatures, and documentation did not support that the services were rendered as billed.  CMS Ex. 1 at 7; see CMS Exs. 5 at 2; 9 at 2.  CMS also explained that “this is not the proper forum to dispute the denial of [Petitioner’s] claims” and that Petitioner could have challenged the denial of the claims but did not do so.  CMS Ex. 1 at 7.  CMS therefore found the opinion of Petitioner’s expert, Julie Weckel, regarding the denial of claims involving six beneficiaries to have “little probative value.”  CMS Ex. 1 at 7.

Petitioner does not squarely dispute that it failed to provide documentation supporting the necessity and reasonableness of the services it provided.  To the contrary, Petitioner claimed that it “was never given the chance to speak with a human directly to go over the results and make the specific corrections that were required.”  P. Br.  Petitioner “ask[ed] for a further investigation into why they did not respond to our original request for more information and guidance to correct our errors, leading to this cascade of further actions by Medicare.”  P. Br.  Petitioner further claimed that “[t]hey never met with us and proceeded to continually find faults with our documentation without any plan of correction being in place or offered,” and also criticized that “[t]here was no continued training on these specifics.”⁷ P. Br.

Petitioner fundamentally misunderstands its obligations; it was required to submit medical documentation supporting the medical necessity and reasonableness of its claims.  See 86 Fed. Reg. at 65,336 (“If the provider or supplier is submitting non-compliant claims, it is the provider’s or supplier’s responsibility to remedy the matter on its own initiative; it is not CMS’ obligation to delay a crucial program integrity measure, such as revocation, to enable the provider or supplier to execute steps that should have been taken previously.”).

The evidentiary record demonstrates that AdvanceMed furnished a detailed discussion of the reasons for denying Petitioner’s claims. CMS Ex. 5 at 16-101; see infra p. 2-3 (quoting an example of the level of detail provided by AdvanceMed in its analysis of each denied claim).  Despite the benefit of this detailed analysis contained in the December 2019 notice informing Petitioner of deficient billing practices that resulted in

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the denial of 41 services furnished in March and April of 2019 (CMS Ex. 5 at 16-101), to include an unambiguous warning that CMS is authorized to revoke enrollment when a provider or supplier has a pattern or practice of submitting claims that fail to meet Medicare requirements (CMS Ex. 5 at 6), Petitioner continued to fail to submit claims that meet Medicare requirements when it submitted claims for services provided between January and February of 2020.  CMS Ex. 9 at 2; 21-23.

Contrary to Petitioner’s apparent expectations, there is no legal requirement that CMS or its contractor, after a provider or supplier has engaged in noncompliant billing, to “go over the results,” “me[e]t with them to create a plan of correction,” or provide “continued training on these specifics.”  P. Br.; see 42 C.F.R. § 424.535(a)(8)(ii)(C); see 86 Fed. Reg. 65,336 (addressing that CMS has no obligation to delay a program integrity measure to allow a provider or supplier to take corrective measures). 

Other relevant information regarding Petitioner’s specific circumstances included that it had received denial notices and specific written education regarding the denied claims, and had been enrolled in the Medicare program for more than 10 years and therefore should have been familiar with the applicable Medicare requirements.

In its reconsidered determination, CMS explained the following:

CMS finds it relevant that the underlying conduct that led to the revocation of [Petitioner’s] Medicare enrollment and corresponding billing privileges is detrimental to the best interests of the Medicare program.  CMS finds it extremely relevant that the reasons for the claim denials and noncompliant billing were consistent over more than two years of claims reviews. [Petitioner] continued to submit claims that failed to meet Medicare requirements despite receiving claim denial notices, as well as specific written education.  CMS also finds its relevant that [Petitioner] has been enrolled in the Medicare program for over ten years.  CMS reasonably expects that providers and supplier who have been enrolled in the Medicare program for an extended period of time to be aware of and familiar with program requirements, including requirements related to the proper submission of claims.  However, despite having more than a decade to familiarize itself with the applicable Medicare requirements, [Petitioner]  continued to engage in a pattern of noncompliant billing for more than two years after receiving education at least two times prior to the revocation of its Medicare enrollment.

CMS Ex. 1 at 8.

Petitioner does not claim CMS erred in its consideration of the factor at 42 C.F.R. § 424.535(a)(8)(ii)(D). To the extent Petitioner claimed it was not educated regarding the

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reasons for the denial of its claims, the evidentiary record supports that detailed reasons for the denial of the claims as a result of the first post-payment review were provided to Petitioner on December 6, 2019, at which time it was warned that CMS could revoke its enrollment for noncompliant billing practices.  CMS Ex. 5 at 1, 6.  In fact, AdvanceMed put Petitioner on notice that it would monitor future claim submissions, which should have caused Petitioner to carefully review and learn from the claims denial analysis provided by AdvanceMed.  CMS Ex. 5 at 6.  Petitioner does not dispute that it had been in the Medicare program for more than a decade and therefore should have already been familiar with compliant billing practices.  See CMS Ex. 27 at 1.  CMS determined that Petitioner had engaged in a pattern of noncompliant billing through the first two reviews, and continued to engage in such a pattern through the third review.  CMS Ex. 1 at 8.  CMS appropriately considered the factor at 42 C.F.R. § 424.535(a)(8)(ii)(D) in upholding the denial of Petitioner’s Medicare enrollment and billing privileges.

Petitioner is subject to a ten-year bar to re-enrollment.

Pursuant to 42 C.F.R. § 424.535(c), CMS is authorized to impose a bar to re-enrollment of up to ten years when it has revoked a supplier’s enrollment.  In its reconsidered determination, CMS upheld the ten-year bar to re-enrollment.  CMS Ex. 1 at 8.  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 [(2016)] (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).  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 Dave, DAB No. 2672at 11 (“CMS’s determination regarding the duration of the re-enrollment bar is not reviewable.”)

Petitioner does not present any legal or factual arguments disputing its inclusion on the Preclusion List.

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Petitioner’s request for hearing includes a cursory and conclusory statement disagreeing with its placement on the Preclusion List, but it otherwise does not dispute that CMS had a legitimate basis to place it on the Preclusion List.  Request for Hearing at 7; P. Br. Because I have upheld Petitioner’s revocation pursuant to 42 C.F.R. § 424.535(a)(8)(ii), and Petitioner is currently subject to a bar to re-enrollment, the first two requirements for inclusion on the preclusion list are met.  42 C.F.R. §§ 422.2, 423.100.

As for the third requirement listed in 42 C.F.R. §§ 422.2 and 423.100, CMS determined that Petitioner’s conduct underlying its revocation was detrimental to the best interests of the Medicare program.  CMS Ex. 1 at 9.  CMS determined that Petitioner continued to submit noncompliant claims after it received “targeted and specific education.”  CMS Ex. 1 at 9.  CMS stated that Petitioner’s conduct “calls into question [its] willingness to be a reliable Medicare supplier by submitting only those claims that meet Medicare requirements.”   CMS Ex. 1 at 9.  In the absence of any argument alleging factual or legal error in the determination to place Petitioner on CMS’s Preclusion List, the evidence demonstrates that CMS, after considering the requisite factors, had a legitimate basis to uphold Petitioner’s placement on the Preclusion List.

V. Conclusion

I affirm the determinations revoking Petitioner’s Medicare enrollment and billing privileges and placing Petitioner on CMS’s Preclusion List.

Endnotes

¹ Petitioner has neither claimed nor submitted evidence that it submitted the request for redetermination on the specific date of January 13, 2020 that is listed on the letter, nor has Petitioner indicated how it submitted the request.

²  Petitioner submitted a copy of what appears to be the subsequent overpayment determination (P. Ex. 5), and it claimed in its request for hearing that it is “currently in the process of appealing the results of the third and fourth audits,” which I construe to be the third non-statistical post-payment review and SSOE review of claims.  Request for Hearing at 4.  Petitioner has not claimed that it timely submitted a request for redetermination of the most recent review, nor has it submitted evidence of such a submission.  Regardless, neither CMS nor WPS based the revocation action on the SSOE review.  CMS Exs. 1, 2.  Further, even without consideration of the third post-payment review, the record overwhelmingly demonstrates billing noncompliance through the first two post-payment reviews, supporting revocation based on abuse of billing privileges.   See CMS Ex. 1 at 8 (determination that Petitioner had a pattern and practice of submitting noncompliant claims through the first two rounds of claims reviews).

³  I assign exhibit numbers to Petitioner’s exhibits as follows:  P. Ex. 1 (WPS certificates, DAB Docket Entry # 15a); P. Ex. 2 (Case Review # 1, DAB Docket Entry # 15b); P. Ex. 3 (Case Review # 2, DAB Docket Entry # 15c); P. Ex. 4 (March 1, 2022 letter, DAB Docket Entry # 15d); P. Ex. 5 (January 24, 2023 letter, DAB Docket Entry # 15e); P. Ex. 6 (bank statement, DAB Docket Entry # 15f).

⁴ As an in-person hearing to cross-examine witnesses is not necessary, it is unnecessary to further address CMS’s motion for summary judgment.

⁵  The August 2022 initial determination revoking Petitioner’s enrollment referenced the third post-payment review, but CoventBridge did not provide notice of its findings until January 2023, at which time it explained that WPS, at a later date, would notify Petitioner of the resulting overpayment and its appeal options.  CMS Ex. 19 at 12.  Although Petitioner reported it is “currently in the process of appealing the results of the third and fourth audits” (Request for Hearing at 4), the evidentiary record lacks a copy of both WPS’s notice and Petitioner’s request for redetermination.  Because the revocation can be sustained based on the outcome of the first two post-payment reviews, it is unnecessary to address the third post-payment review.  See CMS Ex. 1 at 8 (reconsidered determination reporting that Petitioner engaged in a “pattern of noncompliant billing” through the first two reviews and continued to do so through the third review).  Nor is it necessary to address the subsequent SSOE audit that yielded a substantial overpayment.

⁶  Petitioner’s owner and CEO reported numerous actions he had taken on behalf of Petitioner, yet he did not report that he had filed the request for redetermination.   CMS Ex. 5 at 65-67.  Nor did he identify the individual who had purportedly filed a request for redetermination.  I note that the same sworn declaration included specific dates and times of other actions purportedly taken by Petitioner’s owner and CEO, such as the dates and times of numerous telephone calls to “CoventBridge” (without identifying the name of any of the representatives with whom he spoke) dating back to 2019, to include the topics discussed in each of those telephone calls.  In its brief, Petitioner’s owner and CEO vaguely claimed that “[o]ur initial letter of appeal was sent on January 13, 2020,” and acknowledged that “[w]e realize we probably did not use the proper form, but did not have any instructions as to how to file an appeal properly.” P. Br.

⁷  Petitioner also claimed it “used paper progress notes as most of our therapist[s] are older adults and did not wish to use computers.”  P. Br.