Uma Chintapalli, M.D., DAB No. 3122 (2023)

FINAL DECISION ON REVIEW OF ADMINISTRATIVE LAW JUDGE DECISION

Uma Chintapalli, MD (Petitioner) appeals the April 13, 2021 decision of an Administrative Law Judge (ALJ) in Uma Chintapalli, MD, DAB CR5852 (2021) (ALJ Decision).  The ALJ upheld the determination of the Centers for Medicare & Medicaid Services (CMS) to revoke Petitioner’s Medicare enrollment and billing privileges pursuant to 42 C.F.R. § 424.535(a)(10).  The ALJ concluded that CMS had a legal basis for the revocation because Petitioner, a physician, failed to maintain and provide access to requested documentation concerning 19 beneficiaries for whom Petitioner had ordered durable medical equipment, prosthetics, orthotics, and/or supplies (DMEPOS) items.

We affirm the ALJ’s decision to sustain the revocation of Petitioner’s enrollment and billing privileges because it is supported by substantial evidence and free of legal error.

Legal Background

The Social Security Act (Act) authorizes CMS to administer the Medicare program, in part through contracts with private contractors who perform certain program functions, including the enrollment of providers and suppliers, on CMS’s behalf.  Act §§ 1816, 1842, 1874A; 42 C.F.R. §§ 421.5(b), 421.404(c).  A “supplier” of Medicare services – a term that includes physicians¹ – must be enrolled in Medicare and maintain active enrollment status to receive payment for items and services covered by Medicare.  42 C.F.R. §§ 424.500, 424.505.²  “Enrollment” is the process CMS uses to:  (1) identify a

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prospective supplier; (2) validate the supplier’s eligibility to provide items or services to Medicare beneficiaries; (3) identify and confirm a supplier’s owner(s) and practice location(s); and (4) grant the supplier Medicare billing privileges.  Id. § 424.502 (defining “Enroll/Enrollment”); see also id. §§ 424.505, 424.510.

Section 424.535(a) permits CMS to revoke a supplier’s Medicare enrollment and billing privileges, and any corresponding supplier agreement, for any of the reasons enumerated in section 424.535(a).  Section 424.535(a)(10), applicable here, provides:

(10)  Failure to document or provide CMS access to documentation.

(i)   The provider or supplier did not comply with the documentation or CMS access requirements specified in § 424.516(f) of this subpart.

(ii)  A provider or supplier that meets the revocation criteria specified in paragraph (a)(10)(i) of this section, is subject to revocation for a period of not more than 1 year for each act of noncompliance.

Id. § 424.535(a)(10)(i)-(ii).  Section 424.516, in turn, provides requirements for enrolling in and maintaining active enrollment status in Medicare.  The “documentation” and “access” requirements from section 424.535(a)(10) are explained in section 424.516(f)(2), which sets forth two requirements for physicians, as follows:

(f)  Maintaining and providing access to documentation.

*    *    *    *

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

(A)  Maintain documentation (as described in paragraph (f)(2)(ii) of this section) for 7 years from the date of the service; and

(B)   Upon request of CMS or a Medicare contractor, to provide access to that documentation (as described in paragraph (f)(2)(ii) of this section).

Id. § 424.516(f)(2)(i) (bolded italics added).

The above-referenced “documentation” includes:

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written and electronic documents (including the NPI[³] of the physician or, when permitted, other eligible professional who ordered, certified, referred, or prescribed the Part A or B service, item, or drug) relating to written orders, certifications, referrals, prescriptions, or requests for payments for Part A or B services, items, or drugs.

Id. § 424.516(f)(2)(ii).

This basis for revocation under section 424.535(a)(10) implements section 1842(h)(9) of the Act, which authorizes the revocation of Medicare billing privileges of a supplier who failed to comply with the requirements to “maintain” and “provide access to” documentation.  Section 1842(h)(9) provides:

The Secretary [of Health and Human Services] may revoke enrollment, for a period of not more than one year for each act, for a physician or supplier . . . if such physician or supplier fails to maintain and, upon request of the Secretary, provide access to documentation relating to written orders or requests for payment for durable medical equipment . . . as specified by the Secretary.

Act § 1842(h)(9).

Revocation of Medicare billing privileges terminates any existing provider enrollment agreement and bars a provider or supplier from participating in Medicare from the effective date of the revocation until the end of the re-enrollment bar, which “lasts a minimum of 1 year, but not greater than 10 years . . . depending on the severity of the basis for revocation.”  42 C.F.R. § 424.535(b), (c)(1)(i).⁴  Revocation of a supplier’s Medicare billing privileges is an “initial determination” from which the supplier may request a “reconsidered determination” by CMS or its contractor.  Id. §§ 498.3(b)(17), 424.545(a), 498.5(l)(1), 498.22(a).  A reconsidered determination “affirm[s] or modif[ies] the initial determination and the findings on which it was based.”  Id. § 498.24(c).  A supplier “dissatisfied with a reconsidered determination . . . is entitled to a hearing before an ALJ.”  Id. § 498.5(l)(2).  A party dissatisfied with an ALJ’s decision may then seek Departmental Appeals Board (Board) review.  Id. § 498.80.

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Case Background⁵

Petitioner is a physician who, until the revocation from which this appeal arose, was enrolled in Medicare as a supplier.  ALJ Decision at 1; CMS Ex. 1, at 2-3.

By letter dated December 12, 2019, Qlarant Integrity Solutions, LLC (Qlarant), a CMS unified program integrity contractor (UPIC),⁶ asked Petitioner to produce, within 45 days, records concerning 19 Medicare beneficiaries for whom Petitioner had ordered DMEPOS items on various dates of service during the period from October 2018 to March 2019, as identified in the beneficiary chart attached to the records request.  CMS Ex. 4, at 1-2, 4.⁷  The letter stated, “The provider agreement to participate in the Medicare program requires you to submit all information necessary to support the durable medical equipment claims where you are listed as the ordering physician.  In this respect, if certain records supporting the services rendered are at another facility, as the ordering provider you are responsible for obtaining those records for our review.”  Id. at 2.  Qlarant’s request was delivered to Petitioner on December 13, 2019.  Id. at 5.

By initial determination dated February 6, 2020, Novitas notified Petitioner that it had revoked Petitioner’s Medicare enrollment and billing privileges, effective March 7, 2020, under 42 C.F.R. § 424.535(a)(10), because Petitioner did not respond to the December 2019 records request and thus failed to comply with 42 C.F.R. § 424.516(f).  P. Ex. 2, at 1.⁸

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On March 10, 2020, Petitioner submitted a request for reconsideration to CMS.  P. Ex. 3.  Petitioner did not deny having provided services to the beneficiaries on the dates of service identified in Qlarant’s chart, but explained that Petitioner had a “locum tenens”⁹ arrangement with the telemedicine company for which Petitioner had worked on a set fee-per-patient basis,¹⁰ that during the relevant time the telemedicine company had the patient records, and that Petitioner no longer had access to those records in the “telemedicine portal” and did not understand the need at the time to personally maintain a set of records.  Id. at 1.  According to Petitioner, the patients and the medical records concerning those patients “belonged” to the telemedicine company, not Petitioner, who was working for a set amount per patient.  Id.

By letter dated April 20, 2020, Novitas rescinded its February 6, 2020 revocation.  P. Ex. 4, at 1.  Novitas stated that Petitioner’s Provider Transaction Access Number was “reactivated with the effective date that existed prior to the revocation” and that “[t]here will be no break in billing privileges.”  Id.  However, Novitas also stated that it was rescinding revocation “with full reservation of the rights and authorities to conduct further inquiry and to take any action that [CMS] may determine to be appropriate.  This includes potential future action that pertains to the particular underlying conduct that served as the basis of the now rescinded revocation.”  Id.

By letter dated April 30, 2020, CMS informed Petitioner that Petitioner’s Medicare enrollment was “reinstated to an approved status without a break in billing privileges.”  P. Ex. 5, at 1.  Accordingly, CMS also stated that Petitioner’s March 10, 2020 reconsideration request was “no longer actionable” and was “moot.”  Id.

By “follow-up” letter dated July 15, 2020, Qlarant informed Petitioner that, “[t]o date,” it had not received a response to its initial request for records and stated that if Petitioner does not submit the requested records within 15 days, “administrative action, including

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revocation, may be taken.”  CMS Ex. 5, at 1-2 (citing 42 C.F.R. §§ 424.516(f)(2)(i), 424.535(a)(10)).  This letter was delivered on July 15, 2020.  Id. at 4.¹¹

By a new initial determination letter dated September 3, 2020, Novitas notified Petitioner that it had revoked Petitioner’s Medicare enrollment and billing privileges, effective October 3, 2020,¹² under section 424.535(a)(10), because Petitioner did not respond to the records request and thus failed to comply with section 424.516(f).  CMS Ex. 3, at 1.  Appended to the revocation notice was a chart that is similar to the chart Qlarant had previously sent, and which, among other things, identifies the same 19 Medicare beneficiaries for whom Petitioner had ordered DEMPOS items on various dates of service during the period from October 2018 to March 2019.  Id. at 4.  Novitas informed Petitioner that Petitioner would be barred from re-enrollment for 10 years, pursuant to section 424.535(c).  Id. at 3.

On September 25, 2020, Petitioner requested reconsideration, repeating much of what Petitioner had stated earlier.  Petitioner again discussed the alleged “locum tenens” arrangement with the telemedicine company and stated that Petitioner had no access to the patient records that belonged to the company.  CMS Ex. 2, at 2.  Petitioner also stated, “An independent IT consultant attempted to help [Petitioner] access the records . . . and was unable to find any of the patients’ names requested in the doctor’s database.  There is reason to believe that CMS/[Inspector General] has closed the telemedicine company and as such the portal is no longer accessible.”  Id.  Petitioner maintained that section “424.516(f) should not be applicable to [Petitioner].”  Id.

By reconsidered determination dated October 30, 2020, CMS upheld the revocation pursuant to section 424.535(a)(10), for failure to maintain for seven years and provide access to the documents Qlarant had requested, in accordance with section 424.516(f).  CMS Ex. 1, at 1, 3-4. ¹³  CMS wrote:

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Since [Petitioner] is a physician who provides Medicare Part B services including ordering and certifying DMEPOS, [section 424.516(f)] applies to her.  CMS disagrees with [Petitioner’s] assertion that since she served as a locum tenens substitute physician, § 424.516(f) is not applicable to her.   However, this argument is without merit.  CMS has verified that the claims that form the basis of the medical records requests at issue here did not carry any modifiers indicating that [Petitioner] was a locum tenens physician.  Therefore, as the physician who ordered/certified items of DMEPOS, she is required to maintain records related to those orders.  [Petitioner] argues that she was not aware that she needed to maintain her own records while she was working with the telemedicine company on a temporary basis.  However, ignorance of the regulation does not absolve [Petitioner] of her obligation to maintain proper documentation.

Id. at 3.  CMS also acknowledged Petitioner’s explanation about having an IT specialist attempt to access the records that Petitioner could no longer directly access, but stated that “the responsibility to maintain documentation ultimately lies with the physician who orders, certifies, refers, or prescribes [the] . . . services, items, or drugs” and Petitioner’s inability to access them does not “absolve” Petitioner of the obligation to comply with the regulations to maintain the documents, which Petitioner acknowledged Petitioner did not do, and provide access to them.  Id. at 3-4.

ALJ Proceedings and Decision

Petitioner timely requested a hearing before the ALJ.  ALJ Decision at 4.  CMS moved for summary judgment in its favor, urging the ALJ to sustain the revocation under section 424.535(a)(10).  CMS M. for Summ. J. at 1.  CMS stated that it “does not recognize” Petitioner’s “self-proclaimed” status as a locum tenens physician substituting for any “regular” physician(s).  Id. at 5-6 (citing Medicare Claims Processing Manual (MCPM), CMS Pub. 100-04, Ch. 1, § 30.2.11, “Payment Under Fee-For-Time Compensation Arrangements (formerly referred to as Locum Tenens Arrangements)”¹⁴).  CMS asserted that Petitioner, as the ordering physician, is not exempt from section 424.516(f)(2)’s requirements to maintain and provide access to records.  Id. at 6-7.  CMS further argued that an ALJ is not empowered to grant equitable relief.  Id. at 7.

In the response brief (P. Br.), Petitioner opposed summary judgment for CMS and reprised earlier arguments.  Petitioner asserted, chiefly, that the telemedicine company for which Petitioner had worked under a “locum tenens” arrangement on a fee-per-patient

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basis, not Petitioner, was responsible for maintaining the records in question, ALJ Decision at 6 (citing P. Br. at 1), and that “locum tenens” physicians like Petitioner who are not required to be enrolled in Medicare to do “locum tenens” work are (or should be) exempt from the document maintenance and access requirements, id. at 7 (citing P. Br. at 2-4).  See also Request for Hearing at 1-4 (raising similar arguments).  Petitioner maintained that “despite both her and an information technology specialist’s best efforts,” Petitioner “can no longer gain access to” the records, which, Petitioner said, “have been either locked down or destroyed.”  P. Br. at 1.

The ALJ did not decide the case on summary judgment.  The ALJ instead issued a decision based on the written record, which included all exhibits submitted by the parties (P. Exs. 1-14; CMS Exs. 1-7), because the ALJ determined that an in-person hearing was not necessary under these circumstances.  See ALJ Decision at 4-5 & 5 n.2.¹⁵

The ALJ sustained the revocation under 42 C.F.R. § 424.535(a)(10), for failure to comply with section 424.516(f).  ALJ Decision at 1, 6-7, 10.  The ALJ stated, “Petitioner, as the ordering physician and a supplier in the Medicare program, is required, pursuant to 42 C.F.R. § 424.516(f), to maintain and retain for at least seven years the documentation supporting her DMEPOS orders for Medicare beneficiaries.”  Id. at 6-7.  The ALJ determined that because Petitioner “concede[d]” that Petitioner did not “maintain and retain” the records that the UPIC had requested and thus could not later produce them, Petitioner failed to comply with section 424.516(f) and CMS had a basis to revoke Petitioner’s billing privileges under section 424.535(a)(10).  Id. at 6-7.

The ALJ then discussed in some detail the evidence Petitioner had presented and explained why the ALJ determined the evidence did not show the existence of a locum tenens arrangement.  See id. at 7-8; id. at 7 (stating that Petitioner “has not presented evidence that she actually worked as a locum tenens physician as contemplated by the Medicare program”) (ALJ’s emphasis)).  The ALJ determined, “Although Petitioner may regard herself as a locum tenens physician,” and “[r]egardless of whether Petitioner entered into a contract that called for a telemedicine company to store beneficiary records, Petitioner, as a Medicare participant who was not practicing as a locum tenens physician, was independently required to maintain and retain, for a period of seven years, documentation supporting her DMEPOS orders for Medicare beneficiaries.”  Id. at 8 (citing 42 C.F.R. § 424.516(f)(2)).  Having failed to independently “maintain, retain, and provide access to” such documentation, the ALJ concluded, Petitioner was “subject[ ] . . .

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to” revocation in accordance with section 424.535(a)(10).  Id. at 8-9 (citing Act § 1842(h)(9)).

The ALJ also considered the relevant rulemaking history.  The ALJ wrote:

[CMS’s] rulemaking implementing [Act § 1842(h)(9)], which added the instant basis for revocation [in 42 C.F.R. § 424.535(a)(10)] and revised 42 C.F.R. § 424.516, specifically explained that both a physician and another entity may simultaneously be required to maintain, inter alia, records supporting DMEPOS orders[.]  [CMS] explain[ed] that “[t]his final rule places the responsibility for the maintenance of records on both the ordering and certifying physician and the provider and supplier.” . . . The rulemaking unambiguously clarified that “[t]he physician or other eligible professional who signed the order or certification is responsible for maintaining and disclosing the documentation.”

ALJ Decision at 9 (quoting 77 Fed. Reg. 25,284, 25,310 (Apr. 27, 2012)) (ALJ’s emphasis).  Accordingly, the ALJ determined, even assuming Petitioner and a telemedicine company had agreed to have the company maintain and retain records of the DMEPOS items Petitioner had ordered, Petitioner “cannot” be “exempt” from section 424.516(f).  Id.

Lastly, the ALJ stated that, to the extent Petitioner’s arguments could be construed as a challenge to CMS’s decision to proceed to revocation when CMS could have refrained from doing so, on review, an ALJ could not look behind the agency’s exercise of discretion in proceeding to revocation.  Id. (citing Board decisions).¹⁵

Standard of Review

The standard of review on a disputed factual issue is whether the ALJ’s decision is supported by substantial evidence in the record as a whole.  The standard of review on a disputed issue of law is whether the ALJ’s decision is erroneous.  See Guidelines – Appellate Review of Decisions of Administrative Law Judges Affecting a Provider’s or Supplier’s Enrollment in the Medicare Program (Guidelines), available at https://www.hhs.gov/about/agencies/dab/different-appeals-at-dab/appeals-to-board/guidelines/enrollment/index.html?language=en.

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Analysis

In the brief in support of Petitioner’s request for Board review (RR) and brief in reply to CMS’s response brief (Reply), Petitioner essentially reprises the arguments raised earlier, but which the ALJ considered and rejected, thus alleging that the ALJ erred in upholding CMS’s revocation.

Below, we explain why we reject Petitioner’s arguments that Petitioner is, or should be, exempt from section 424.516(f)(2)’s document maintenance and access requirements.  Because Petitioner was a physician enrolled in Medicare as a supplier who ordered the DMEPOS items claimed for Medicare reimbursement, Petitioner was subject to revocation under section 424.535(a)(10) for failure to comply with section 424.516(f)(2).  We agree with the ALJ that Petitioner did not comply with section 424.516(f)(2) and, thus, CMS lawfully revoked Petitioner’s billing privileges under section 424.535(a)(10).

1.     CMS lawfully revoked Petitioner’s Medicare billing privileges under 42 C.F.R. § 424.535(a)(10), because Petitioner failed to “maintain” and “provide access” to the requested documents as required by 42 C.F.R. § 424.516(f)(2).

Petitioner argues that having worked “exclusively” as a locum tenens physician for the telemedicine company,¹⁷ Petitioner was “not responsible for record keeping, coding, prescription orders, or billing” – tasks that Petitioner says “were the sole responsibility of” the company – and “[t]he patients, their records, and the right to payment all belonged to” the company, the “supplier” of the DMEPOS items.  RR at 3; see also Reply at 3.  Accordingly, Petitioner says, the burden to maintain and produce or make available records and, as well, to comply with billing requirements (including the use of  modifier Q6 for locum tenens billing) lies, and should lie, with the telemedicine company.  RR at 3-4.  Petitioner asserts that the inability to produce the requested records over which the telemedicine company had control was not due to any fault on Petitioner’s part.  Id. at 5.

The plain language of section 424.516(f)(2) requires physicians who order or provide referrals for DMEPOS items billed to Medicare to do two things.  First, they must “maintain,” for a period of seven years, certain documentation (written or electronic) related to written orders, certifications, or requests for payments for DMEPOS.  42 C.F.R. § 424.516(f)(2)(i)(A).  Second, they must provide CMS or its contractor “access” to that documentation “[u]pon request.”  Id. § 424.516(f)(2)(i)(B).  Failure to satisfy either requirement provides a valid basis for revocation of billing privileges.  Id. § 424.535(a)(10).

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Petitioner does not dispute that Petitioner was the ordering physician for the DMEPOS items provided to 19 Medicare beneficiaries, the records of which Qlarant had requested.  And it is undisputed that Petitioner did not “maintain” records concerning the items Petitioner had ordered.  Indeed, by repeatedly asserting that Petitioner was not responsible for maintaining records of the DMEPOS items Petitioner had ordered and discussing the IT specialist’s later attempt to access or recover the records, Petitioner effectively conceded that Petitioner did not maintain the records and therefore could not later produce or provide access to them on request.  Because Petitioner was the ordering physician and was thus subject to the requirements in section 424.516(f)(2), Petitioner’s billing privileges may lawfully be revoked for failure to maintain and then provide access to (or produce) the records concerning the items Petitioner had ordered.

The ALJ’s decision upholding revocation is consistent with the preamble to the rulemaking, which declares, “This final rule places the responsibility for the maintenance of records on both the ordering and certifying physician and the provider and supplier,” and that “[t]he physician or other eligible professional who signed the order or certification is responsible for maintaining and disclosing the documentation.”  See ALJ Decision at 9 (discussing and quoting from 77 Fed. Reg. at 25,310) (ALJ emphasis omitted).  Thus, CMS made clear that ordering physicians like Petitioner would be required to maintain and disclose their own “documentation.”  Therefore, the ALJ did not err in finding that even assuming Petitioner had an agreement with the telemedicine company to “maintain and retain documentation supporting [Petitioner’s] DMEPOS orders to Medicare beneficiaries, such an agreement cannot exempt Petitioner from Medicare participation requirements.”  Id.

In George M. Young, M.D., DAB No. 2750 (2016), the Board held that under section 424.516(f)(2), an ordering physician or other eligible professional “maintains” the required “documentation” only by keeping and retaining their own records, and may not be excused from this obligation because their employer or any other entity customarily maintained those records.  Young at 8-11.  Dr. Young was briefly a physician who examined patients referred to his employer, Sleep Medical Center (SMC), to assess for symptoms of sleep apnea.  Id. at 3.  Dr. Young also signed prescriptions for DMEPOS items for patients if SMC, based on sleep studies, made that recommendation.  Id.  When CMS later requested DMEPOS documentation from Dr. Young pursuant to section 424.516(f), Dr. Young admitted he did not possess the records and could not locate them, as SMC had gone out of business and its owner (“H.Z.”) allegedly had disappeared and “absconded with the records.”  Id. at 5.

The ALJ affirmed CMS’s revocation of Dr. Young’s billing privileges, and the Board upheld the ALJ’s decision.  Id. at 1.  The Board rejected Dr. Young’s argument that he should be excused from personally maintaining the requested patient records, “because he himself was not in a position to maintain the documents personally or exercise direct control over them since he was not an owner of SMC but merely was a staff physician

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employed by SMC.”  Id. at 9.  The Board quoted the preamble language in 77 Fed. Reg. at 25,310, from which it concluded that the regulation’s language and its history required individual physicians such as Dr. Young to maintain and disclose their own DMEPOS-related records, regardless of whether it was their custom to do so:  “CMS contemplated that even physicians who may not have immediate, ready access to and direct control over medical documents (as, for example, a doctor who owns his or her own practice and keeps the medical documents within his or her medical office might) would be expected to adhere to the record retention and disclosure requirements . . . .”  Id. at 10.

The Board also rejected Dr. Young’s argument that he should be exempted from the “access” requirement of section 424.516(f)(2)(i)(B) because circumstances “beyond his control” – the owner’s closing of SMC and “absconding” with the records – prevented him from producing the records for CMS.  Id. at 10-11.  The Board stated that such alleged facts “do not specifically go to the requirement that the ordering physician, [p]etitioner, maintain the documents as they are created and retain them for a period of seven years for purposes of providing CMS access to them should CMS or its contractor request to see them sometime during that period.”  Id. at 10.  The Board continued:

Regardless of H.Z.’s alleged actions, which [p]etitioner himself said took place after he left his position at SMC, [p]etitioner, as ordering physician, was required to maintain the records as they were developed in the course of his examining patients for possible need for DMEPOS items, i.e., during the period he was a physician at SMC . . .  [M]uch of what [p]etitioner complains of, H.Z. closing SMC and absconding with the records, concerns the hurdles [p]etitioner encountered in trying to obtain the records to respond to CMS in 2015; it does not, however, excuse [p]etitioner’s failure to maintain records from the time they came into existence through a period of seven years as required under the regulation.

Id. at 10-11.

Just as in Young, we are not persuaded by Petitioner’s attempts to evade the clear requirements of section 424.516(f).  Despite Petitioner’s assertion that the telemedicine company is responsible for maintaining the records, section 424.516(f)(2) required Petitioner, as the ordering physician, to individually maintain “documentation” on the DMEPOS items Petitioner had ordered, not to rely on others to do so.  The regulation does not permit a physician to satisfy this requirement merely by having had access, sometime in the past, to the records of an employer or other entity that maintained those records.  The ALJ thus did not err in rejecting Petitioner’s arguments regarding the telemedicine company’s record retention practices, or any related agreement with Petitioner, and correctly concluded that Petitioner failed to “independently” maintain documentation pursuant to section 424.516(f)(2)(i).  See ALJ Decision at 9.

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Petitioner states that after Petitioner ended her relationship with the telemedicine company, Petitioner no longer had “access to” the patient records and “has been unable to regain access since.”  RR at 6.  Petitioner alludes to the “allegations faced by” the telemedicine company and discusses the IT specialist’s unsuccessful attempt to retrieve the records from the telemedicine portals.  Id.  Petitioner argues that had the telemedicine company “steered clear of regulatory trouble,” Petitioner “would have been capable and willing to fill all requests made by CMS.”  RR at 6-7.  Petitioner reasserts these arguments in reply, maintaining that “absent government intervention” and “investigation” of the company, Petitioner would have access to the records and thus would have been able to respond to the record requests.  See Reply at 4-5 (Petitioner’s emphasis omitted).

It is immaterial whether Petitioner at some point in time had access to the records, or whether Petitioner would still have access to them but for a government entity’s action affecting the company, or whether the telemedicine portals exist and are functioning and storing the records.  Even if Petitioner still could access the telemedicine portals, such access would not render unsound the ALJ’s determination that Petitioner acknowledged “she did not maintain her own copy of [patient] records,” as required by the regulation.  See ALJ Decision at 6 (ALJ emphasis omitted).

Indeed, Petitioner’s arguments only serve to underscore the importance of maintaining patient records in accordance with section 424.516(f)(2)(i)(A) because, as a direct result of Petitioner’s failure to maintain a set of records, Petitioner could not later provide the records to CMS or otherwise make them available to CMS in accordance with section 424.516(f)(2)(i)(B).  See Heidi Woody, NP, DAB No. 3102, at 15 (2023) (“Far from excusing her failure to comply, [p]etitioner’s challenges in obtaining patient records years after she stopped working for [another entity] underscore the importance for practitioners such as [p]etitioner to maintain their own records as they are made – both to ensure compliance with the regulation and to preempt the need to depend on the record retention practices of other sources after failing to do so.”).

Petitioner also states, “The placing of punishment on [Petitioner] as a scapegoat for a now evaporated company is improper, inequitable, and is nothing more than guilt by association.”  RR at 7.  Petitioner makes similar arguments in the reply brief, disputing what Petitioner believes is an improper shifting of the burden of documentation maintenance and production requirements from the telemedicine company to Petitioner.  See Reply at 3-4.¹⁸  Petitioner appears to imply that CMS’s decision to revoke was

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excessive, as Petitioner states that revocation under these circumstances amounts to an “erroneous showing of force that is entirely unwarranted.”  Id. at 5.

Although in Petitioner’s view the blame lies and should lie with the telemedicine company that Petitioner says possessed and had control over the records generated while Petitioner worked with the company, the issue we (and the ALJ) must decide is whether CMS lawfully revoked Petitioner’s billing privileges, not what if anything the telemedicine company did wrong.  If, as here, CMS determines that there is a basis to revoke billing privileges of a physician enrolled in Medicare and then proceeds to revoke that physician’s billing privileges in exercise of its discretion to do so, on appeal of that action, we (and the ALJ) must uphold that action if it is grounded in law and fact, as it is here.  See, e.g., Cornelius M. Donohue, DPM, DAB No. 2888, at 10 (2018) (stating the ALJs and the Board “are limited to deciding whether the regulatory prerequisites for revocation have been satisfied” and must uphold the revocation if those prerequisites are met).  The ALJ’s and the Board’s role in reviewing an appeal of revocation “does not extend to second-guessing whether CMS properly exercised its discretion” in revoking.  Acute Care Homenursing Servs., Inc., DAB No. 2837, at 9 (2017); see also Lilia Gorovits, M.D., P.C., DAB No. 2985, at 10 (2020) (emphasizing that while CMS may consider case-specific circumstances in deciding whether or how to exercise its revocation authority, once CMS decides to revoke, the ALJs and the Board may not substitute their discretion for CMS’s), aff’d, Gorovits v. Becerra, No. 2:20-cv-01850, 2021 WL 1962903 (E.D. Pa. May 17, 2021); Young at 11 (“[I]t is not for the ALJ and the Board to look behind [CMS’s] exercise of discretion to ask whether [the ALJ], or the Board, standing in CMS’s shoes, would reach the same decision to revoke.”).

Further, the revocation of billing privileges is not intended to “punish” the enrolled supplier.  Rather, it is an administrative action, “a remedy intended to protect the integrity of the Medicare program and trust funds, as well as the beneficiaries served.”  Sheetal Kumar, M.D., P.A., DAB No. 2965, at 8 (2019) (citing Neil Niren, M.D. and Neil Niren, M.D, P.C., DAB No. 2856, at 10 (2018)); see also Dr. Robert Kanowitz, DAB No. 2942, at 6-7 (2019) and cited decisions (distinguishing “remedial” administrative actions, such as revocation, from punitive actions).  To the extent Petitioner’s arguments, collectively, could be construed as seeking restoration of billing privileges for equity reasons, neither the ALJ nor the Board is empowered to sit in equity.  See Daniel Wiltz, M.D., DAB No. 2864, at 13 (2018); Blair Allen Nelson, M.D., DAB No. 3024, at 12 (2020).

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2.     We agree with the ALJ that Petitioner did not demonstrate that Petitioner was a “locum tenens” physician; more importantly, however, Petitioner’s billing privileges were lawfully revoked under 42 C.F.R. § 424.535(a)(10) because Petitioner, as the enrolled, ordering physician-supplier, did not comply with 42 C.F.R. § 424.516(f)(2).

The Act authorizes Medicare payment to the physician or individual who provided the service in question or to the beneficiary to whom the service was furnished; however, the Act recognizes an exception to that general payment rule.  Section 1842(b)(6)(D) states, in part:

No payment under this part for a service provided to any individual shall . . . be made to anyone other than such individual or . . . the physician or other person who provided the service, except . . . (D) payment may be made to a physician for physicians’ services (and services furnished incident to such services) furnished by a second physician to patients of the first physician if (i) the first physician is unavailable to provide the services; (ii) the services are furnished pursuant to an arrangement between the two physicians that (I) is informal and reciprocal, or (II) involves per diem or other fee-for-time compensation for such services; (iii) the services are not provided by the second physician over a continuous period of more than 60 days or are provided over a longer continuous period during all of which the first physician has been called or ordered to active duty as a member of a reserve component of the Armed Forces; and (iv) the claim form submitted to the carrier for such services includes the second physician’s unique identifier (provided under the system established under subsection (r)) and indicates that the claim meets the requirements of this subparagraph for payment to the first physician. . . .

Act § 1842(b)(6)(D).

Pursuant to the above statutory authorization, the Medicare program recognizes “fee-for-time” compensation arrangements under which a physician may serve as a substitute physician for another, “regular” physician when the “regular” physician is unable to provide the services due to reasons such as illness.  See MCPM, Ch. 1, § 30.2.11; 42 C.F.R. § 411.351 (defining “Locum tenens physician”).  Under such an arrangement, in general, the “regular” physician pays the substitute physician on a per diem or other fee-for-time basis with the substitute physician having the status of an independent contractor.  MCPM, Ch. 1, § 30.2.11.  The “regular” physician may bill Medicare and receive payment for the substitute physician’s services as though the “regular” physician performed them, but the claim must be made using the appropriate Healthcare Common

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Procedure Coding System (HCPCS)¹⁹ code modifier (Q6) to indicate that the services were provided under a “fee-for-time” arrangement.  Id.  “A record of each service provided by the substitute physician . . . must be kept on file along with the substitute physician’s . . . NPI” and “must be made available to” CMS’s contractors “on request.”  Id.

Petitioner asserts that the telemedicine company and Petitioner had a “classic locum tenens relationship,” established by a “contract” that “identifie[d]” Petitioner as a “locum tenens physician” and under which Petitioner was paid on a “fee-for-time structure.”  RR at 3-4.  According to Petitioner, the contract alone did not define the locum tenens relationship.  Petitioner was a locum tenens physician “in practice” because “certified assistant[s]” “triaged and charted” patients, and “created and completed” “the subjective, objective, assessment and plan” notes (SOAP notes) before Petitioner and patients made any contact, which was accomplished in accordance with the company’s questionnaire.  Id. at 3.

Petitioner raised similar arguments earlier and presented documents that, according to Petitioner, established locum tenens status as addressed in MCPM, Ch. 1, § 30.2.11.  See ALJ Decision at 7-8.  The ALJ examined the evidence, rejected the arguments, and stated, “Petitioner has not presented evidence that [Petitioner] actually worked as a locum tenens physician as contemplated by the Medicare program.”  Id. at 7.  Of note, the ALJ found that, although the telemedicine company documents (included as part of P. Ex. 11) indicated that the company was “recruiting for locum tenens positions, the nature of the positions, as described . . . was not akin to the fee-for time arrangements discussed” in section 30.2.11 of MCPM.  ALJ Decision at 7.  Further, the ALJ noted that the telemedicine company documents indicated that recruited physicians would be paid “per consult,” which in most cases would take around or less than five minutes, and that physicians had flexibility in terms of hours/days worked and could perform as few as 10 or as many as 200 consultations per week.  Id.; P. Ex. 11, at 3.  The ALJ stated that Petitioner did not address or explain, and “it is not apparent how[,] [Petitioner] could remotely ‘substitute’ for regular physicians by working at any hour on any day and by performing as few as 10 or as many as 200 ‘consultations’ each week.”  ALJ Decision at 7-8.  The ALJ also noted that the company did not indicate that recruited physicians would work as “substitute” physicians; “to the contrary,” the company “explained that it was specifically recruiting physicians to prescribe and/or order items and tests.”  Id. at 8; P. Ex. 11, at 3.  Moreover, the ALJ noted that G.C. (Petitioner’s witness, a registered nurse) “did not indicate that physicians served as substitute physicians, as shown by her explanation that the telehealth companies ‘make money through contracting with client/subscribers such as . . . Managed Care Organizations, and [accountable care

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organizations] with the assigned patient population.’”  ALJ Decision at 8 (quoting P. Ex. 14, at 1 (¶ 3)).²⁰

Petitioner does not raise any specific dispute about the ALJ’s assessment of Petitioner’s exhibits, and related findings, as discussed in pages 7-8 of the ALJ Decision.  Petitioner instead attempts to sidestep the ALJ’s assessment, asserting that Petitioner submitted evidence that allegedly renders erroneous the ALJ’s determination that Petitioner did not establish a locum tenens relationship with the telemedicine company.  See Reply at 4.  The Board finds no reason to disturb the ALJ’s assessment, as the ALJ’s findings are supported by substantial evidence in the record and because Petitioner offers, and we find, no compelling reason to disturb the ALJ’s findings.  See, e.g., 1701 Express, Inc., DAB No. 2979, at 9 (2019) (“It is well-settled that the Board defers to the ALJ’s assessment of the evidence, including credibility to be accorded to witness testimony, absent a compelling reason for not doing so.”) (citing Atty’s Parti Expo, Inc., DAB No. 2925, at 7 (2019), aff’d, 836 F. App’x 366 (6th Cir. 2020)).  We therefore agree with the ALJ’s conclusion that, based on the evidence presented to the ALJ, Petitioner did not establish that Petitioner was a locum tenens physician as contemplated by the Medicare program.

Furthermore, even accepting that Petitioner had entered a contract with the telemedicine company to provide services on a set-fee basis, Petitioner has never satisfactorily addressed what in our view is crucial to Petitioner’s “locum tenens” argument:  whether Petitioner actually served as a substitute for another physician (or physicians).  The defining nature of a “locum tenens” arrangement under the Medicare program is that one individual acts as a substitute for another individual.  See 42 C.F.R. § 411.351.  However, Petitioner does not specifically claim to have provided services as a substitute for another physician and has never identified a single physician for whom Petitioner acted as a substitute physician.  Had Petitioner in fact agreed to substitute for another physician, Petitioner surely would be personally aware of that fact and could have attested to that fact in Petitioner’s affidavit (P. Ex. 11, at 1-2), identifying the physician for whom Petitioner was providing services temporarily.  But there is nothing in the record indicating that Petitioner was retained by anyone or any entity to perform the services of another physician who, for whatever reason, was unavailable or could not perform the “regular” physician’s work.  This glaring gap is fatal to Petitioner’s attempt to avoid the reach of section 424.516(f)(2) in reliance on alleged locum tenens status.  Accordingly, we disagree with what we view as an implication that the ALJ improperly relied on or over-emphasized “the lack of an over-arching primary physician for [whom Petitioner was allegedly] substituting” (RR at 3), because the existence (or not) of a “regular”

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physician (or “primary physician,” in Petitioner’s words) goes to the heart of the “locum tenens” argument.  We agree with the ALJ that “Petitioner has not submitted any evidence that she substituted for regular physicians” (ALJ Decision at 8) and thus has not shown that Petitioner served in a locum tenens capacity as contemplated by the Medicare program.

Furthermore, Petitioner does not explain how the certified assistants’ having “triaged and charted” patients and prepared SOAP notes before Petitioner made contact with patients (remotely) support the existence of a locum tenens arrangement.  It is conceivable that certified assistants or non-physician medical professionals would prepare in advance for physician-patient contact, regardless of whether the physician is a “locum tenens” or a “regular” physician.  But we do not see how the fact that certified assistants provided advance preparation services supports Petitioner’s locum tenens status “in practice.”  Petitioner presumably was not hired to be, and was not substituting for, a “certified assistant” or other professional who is not a medical doctor.  The telemedicine company presumably needed a physician qualified to provide consultations and prescribe or order medically necessary items; otherwise, it would not have needed to recruit Petitioner or any other physician.

We further reject what we view as Petitioner’s attempt to downplay the purported non-use of a Q6 modifier as merely a “billing” issue that ultimately is insignificant or irrelevant.  See RR at 2-3 (stating the contractor wrongly rejected Petitioner’s “locum tenens” argument, citing only the absence of modifier), 4 (stating that “the only evidence against the recognition of [Petitioner] as locum tenens is a lack of a Q6 modifier,” which “is a process done while billing”).  We are well aware of Petitioner’s position that Petitioner did not personally make the claims and was not responsible for, and did not control, the billing.  RR at 3-4.  We are also open to the possibility that the use or non-use of a Q6 modifier on a claim (assuming that was true of the claims at issue here) alone might not be dispositive on whether a service was properly billed as a “locum tenens” service, under every possible scenario.  However, in our view, the use or non-use of the Q6 modifier is not insignificant or irrelevant.  Here, the purported non-use of a Q6 modifier appears consistent with Petitioner’s own evidence the ALJ assessed as not establishing Petitioner as a locum tenens physician – an assessment with which we fully agree.

According to Petitioner, “[i]t is widely recognized that a locum tenens physician” need not be enrolled in Medicare and have billing privileges to serve in locum tenens capacity.  RR at 5; Reply at 3 (asserting that “[t]he legislative scheme” supports a conclusion that locum tenens physicians are exempt from section 424.516(f)(2) requirements) (Petitioner’s emphasis omitted).  Petitioner says that because Petitioner, as a locum tenens physician, “was not required to have Medicare enrollment to do the locum tenens work” and does not derive benefit from the program as the billing entity does (apparently

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meaning direct Medicare reimbursement), Petitioner should not be held to complying with section 424.516(f)(2) requirements.  RR at 5; Reply at 3.

We reject these arguments.  First, Petitioner cites no law, regulation, or other authority on point for the bare statement that the “legislative scheme” supports a conclusion that locum tenens physicians are or should be exempt from the document maintenance and access requirements.  Second, Petitioner’s argument that locum tenens physicians need not be enrolled in Medicare to serve in that capacity is diversionary and misses the point.  The argument disregards that we need not decide the specific issue of whether a physician must be enrolled as a supplier in Medicare to serve as a locum tenens physician to uphold revocation in this case.  Even accepting for the moment that a physician need not be enrolled in Medicare to serve as a locum tenens physician, the ALJ found and concluded that, based on the evidence Petitioner presented, Petitioner was not in fact serving as a locum tenens physician in accordance with MCPM provisions.  We agree with the ALJ’s finding and conclusion because they are sound and supported by the record evidence.  Thus, as a factual matter, Petitioner was not a locum tenens physician.  The argument, moreover, disregards the far more important point that Petitioner was enrolled and participating in Medicare as a supplier; that is precisely why Petitioner is subject to disenrollment if, as here, a basis for revocation is established.  As discussed earlier and in the ALJ Decision, Petitioner was the ordering physician-supplier who was subject to section 424.516(f)(2) provisions, the noncompliance with which established a basis for revocation under section 424.535(a)(10).

Conclusion

We affirm the ALJ Decision.

¹  The term “supplier” means, “unless the context otherwise requires, a physician or other practitioner, a facility or other entity (other than a provider of services [as defined in Act § 1861(u)]) that furnishes items or services” under the Medicare program.  Act § 1861(d); see also 42 C.F.R. § 400.202 (defining “supplier” similarly).  “Providers,” for purposes of Medicare, include hospitals, skilled nursing facilities, and home health agencies.  42 C.F.R. § 400.202.

²  We apply the Part 424 regulations that were in effect on September 3, 2020, when CMS’s contractor issued its initial revocation determination.  See John P. McDonough III, Ph.D., DAB No. 2728, at 2 n.1 (2016).

³  The “NPI” (National Provider Identifier) is “the standard unique health identifier for health care providers (including Medicare suppliers).”  See Medicare Program Integrity Manual (MPIM), CMS Pub. 100-08, Ch. 10, § 10.1.1.  The MPIM is available at:
https://www.cms.gov/regulations-and-guidance/guidance/manuals/internet-only-manuals-ioms-items/cms019033.

⁴  Effective November 4, 2019, CMS amended section 424.535(c) to extend the maximum re-enrollment bar length from three years to 10 years, and up to 20 years, in certain circumstances.  See 84 Fed. Reg. 47,794, 47,854-56 (Sept. 10, 2019).

⁵  The factual information in this section is drawn from the ALJ Decision and the record before the ALJ and is not intended to add to or modify the ALJ’s findings.

⁶  UPICs are CMS contractors “responsible for preventing, detecting, and deterring fraud, waste, and abuse in both the Medicare program and the Medicaid program.”  MPIM, CMS Pub. 100-08, Ch. 4, § 4.2.2.1.  UPICs are thus distinguishable from CMS’s Medicare Administrative Contractors, such as Novitas Solutions (Novitas), which, as discussed later, revoked Petitioner’s billing privileges.

⁷  The beneficiary chart identified one beneficiary, for the same date of service (1/11/2019), twice.  See CMS Ex. 4, at 4.

⁸  Petitioner initially filed a 149-page submission with the Board and later filed a 165-page submission in reply to CMS’s response brief.  The first seven pages of the initial submission are Petitioner’s opening brief; the first six pages of the reply submission are the reply brief.  The remainder of both submissions appear to be copies of materials filed with the ALJ, including exhibits, the request for hearing, and Petitioner’s brief to the ALJ.  Multiple copies of certain items were submitted.  Copies of materials in the record developed by the ALJ need not be submitted to the Board because the Board has access to, and reviews, the record developed below.  And, in cases arising from appeal of an ALJ decision on enrollment (which includes revocation of enrollment, as is the case here), the Board may not consider and admit into the record evidence that was not introduced earlier.  See 42 C.F.R. § 498.86(a) (“Except for provider or supplier enrollment appeals, the Board may admit evidence into the record in addition to the evidence introduced at the ALJ hearing (or the documents considered by the ALJ if the hearing was waived) if the Board considers that the additional evidence is relevant and material to an issue before it.” (emphasis added)); Michael Turano, M.D., DAB No. 2922, at 16 (2019).  Accordingly, we must decide this case based on a review of the record developed by the ALJ and the parties’ briefs submitted to the Board.  None of the items submitted with Petitioner’s seven-page opening brief and six-page reply brief will be considered to decide this case, but the entire submissions will be retained as part of the administrative record of this case.  All cites to Petitioner’s exhibits herein are to those in the record of the ALJ proceedings.

⁹  The “locum tenens” concept, which involves the substitution of one physician for another physician, is rooted in the payment provisions in section 1842(b)(6)(D) of the Act.  A “Locum tenens physician (or substitute physician) means a physician who substitutes in exigent circumstances for another physician, in accordance with section 1842(b)(6)(D) of the Act and Pub. 100–04, Medicare Claims Processing Manual [MCPM], Chapter 1, Section 30.2.11.”  42 C.F.R. § 411.351.  (The regulations in 42 C.F.R. Part 411 address exclusions from Medicare and limitations on Medicare payment.  Subpart J of Part 411, within which section 411.351 is found, addresses financial relationships between physicians and entities furnishing designated health services.)  We will discuss the “locum tenens” concept and Petitioner’s arguments about it in more detail later in our analysis.

¹⁰  We acknowledge that Petitioner attested to having worked with two telemedicine companies.  P. Ex. 11, at 1 (¶ 1).  However, we will refer to the singular, “telemedicine company.”  For purposes of our analysis, the identities of the telemedicine companies are not material, and we need not distinguish one company from the other.

¹¹  Petitioner does not dispute the receipt of Qlarant’s records requests.

¹²  With exceptions not applicable here, “[r]evocation becomes effective 30 days after CMS or the CMS contractor mails notice of its determination to the provider or supplier.”  42 C.F.R. § 424.535(g).  We infer from Novitas’s statement that revocation would take effect on October 3, 2020, that Novitas mailed the September 3, 2020 initial determination to Petitioner that day.

¹³  CMS referred to Qlarant’s request for the records of “20 beneficiaries” for dates of service “ranging from January 2016 to May 2019.”  CMS Ex. 1, at 4.  This reference within the text of CMS’s reconsidered determination appears to have been an error.  The two beneficiary charts sent to Petitioner identify the same 19 beneficiaries and the same dates of service for the period from October 2018 to March 2019, though, as noted earlier, the first chart named one beneficiary twice; the second list eliminated the duplicate entry of one beneficiary.  Compare CMS Ex. 4, at 4 with CMS Ex. 3, at 4; see supra note 7.  In any case, Petitioner does not deny receipt of notices that included the two charts or having provided services to the 19 beneficiaries on the dates of service.

¹⁴  The MCPM is available at:
https://www.cms.gov/regulations-and-guidance/guidance/manuals/internet-only-manuals-ioms-items/cms018912.

¹⁵  The ALJ admitted all exhibits, overruling CMS’s objection to Petitioner’s exhibits 13 and 14, which were a letter by G.C. (a registered nurse) and G.C.’s affidavit (which the ALJ construed as G.C.’s written direct testimony).  ALJ Decision at 4.  CMS did not choose to cross-examine G.C. or anyone else Petitioner identified as a witness, rendering a hearing for that purpose unnecessary.  See id. at 4-5 & 5 n.2; P. Witness List (appended to P. Brief).  Neither party now raises any argument about the ALJ’s issuance of a decision based on the written record or the ALJ’s evidentiary ruling.

¹⁶  As the ALJ correctly noted, the contractor’s or CMS’s determination on the duration of a re-enrollment bar is not an appealable initial determination specified in 42 C.F.R. § 498.3(b).  ALJ Decision at 6 n.4 (citing Vijendra Dave, M.D., DAB No. 2672, at 11 (2016)); see also Heidi Woody, NP, DAB No. 3102, at 19-21 (2023); Sheetal Kumar, M.D., P.A., DAB No. 2965, at 11-12 (2019).  Petitioner has never raised arguments about the re-enrollment bar.  We need not further discuss the re-enrollment bar.

¹⁷  We will address Petitioner’s arguments about the existence of the locum tenens arrangement separately, later in our analysis.

¹⁸  The arguments in Petitioner’s briefs suggest the apparent belief that the physician ordering or prescribing DMEPOS items is unfairly being singled out and held to records maintenance and access requirements.  Such a belief, however, does not align with the actual text of the regulations.  We note that the regulations are written more broadly to also require providers and suppliers that “furnish[ ] covered ordered, certified, referred, or prescribed Part A or B services, items or drugs” to maintain for seven years and provide access to documents.  See 42 C.F.R. § 424.516(f)(1) (emphasis added).  Thus, a DMEPOS supplier entity, too, could be subject to the records maintenance and access requirements.

¹⁹  HCPCS is a compilation of definitions of physician and other health care professional services, codes for those services, and payment modifiers used to process and pay Medicare claims.  See Realhab, Inc., DAB No. 2542, at 6 (2013) (and cited law and regulations).

²⁰  We note that G.C. referred to Petitioner as the “prescribing” physician (P. Ex. 14, at 2 (¶ 4)), which appears consistent with Novitas’s and CMS’s characterization of Petitioner as the “ordering” physician who is subject to the requirements of section 424.516(f)(2).