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From Health Law Daily, November 13, 2018

Physician’s billing privileges properly revoked where he failed to maintain former practice records

By Jeffrey H. Brochin, J.D.

A CMS contractor properly revoked the Medicare enrollment and billing privileges of a Florida physician who failed to maintain his own patient records from a former practice location, even though he ultimately obtained them and submitted them to CMS, the Departmental Appeals Board (DAB) ruled. His failure to maintain records, including his orders for clinical laboratory services, for three former patients for seven years from the dates of those orders violated 42 C.F.R. §424.516(f)(1)(i)(A) and that violation was a basis for revocation of his Medicare enrollment and billing privileges for a period of one year (Dominguez v. CMS, Docket No. C-17-1064, Decision No. CR5035, March 12, 2018).

Material facts not in dispute. The physician was enrolled as a Medicare provider, and on or about August 30, 2016, he received a request from Safeguard Services, LLC, the Zone Program Integrity Contractor (ZPIC), for the records of five patients. On September 10, 2017, he notified the ZPIC that the records for two patients were ready to be picked up but that he did not have records for three of the patients whom he saw as part of his employment with Salud Medical Center, his former practice group. He advised the ZPIC that the records for the three former patients should be requested from Salud because he no longer saw those patients, he was not the records custodian for their records, and he had no access to the records.

However, by letter dated May 23, 2017, (after notice of revocation of privileges from his CMS contractor) he informed the ZPIC that he obtained the records for the three former patients from Salud and he provided copies with his letter. It was undisputed that Salud was the entity that billed and received Medicare payment for services provided by the physician to the three Medicare-eligible beneficiaries whose records he obtained from Salud and delivered to the ZPIC.

Notice of revocation. On March 16, 2017, First Coast Service Options, Inc., the physician’s Medicare administrative contractor (MAC), notified him that his Medicare enrollment and billing privileges were revoked effective April 15, 2017, and cited 42 C.F.R. §424.535(a)(10) as the authority for the revocation based on the fact that he failed to maintain and provide access to documents requested by CMS or its contractor. A re-enrollment bar of one year was imposed by the MAC. The physician requested reconsideration, however, the revocation was upheld on reconsideration, and he subsequently requested a hearing before an ALJ.

Basis for summary judgment. CMS filed a motion for summary judgment and prehearing brief, and the physician filed his brief, cross-motion for summary judgment and response in opposition to the CMS motion. The ALJ noted that HHS regulations that establish the procedure to be followed in adjudicating a revocation case are at 42 C.F.R. pt. 498, 42 C.F.R. §§405.800, 405.803(a), 424.545(a), and 498.3(b)(5), (6), (15), (17), and that the regulations do not establish a summary judgment procedure or recognize such a procedure. However, the DAB has long accepted that summary judgment is an acceptable procedural device in cases adjudicated pursuant to 42 C.F.R. pt. 498. The DAB has recognized that the Federal Rules of Civil Procedure do not apply in administrative adjudications such as the instant matter, but the DAB has accepted that the procedural rules and related cases provide useful guidance for determining whether summary judgment is appropriate.

Furthermore, a summary judgment procedure was adopted as a matter of judicial economy within the ALJ’s authority to regulate the course of proceedings and he made that procedure available to the parties by way of his prehearing order. He further noted that summary judgment is not automatic upon request but is limited to certain specific conditions.

No genuine dispute of material fact. After accepting the physician’s rendition of the facts for purposes of summary judgment, the ALJ found that there was no dispute as to any material fact pertinent to revocation issue. The physician had admitted that he failed to maintain documents required by 42 C.F.R. §424.516(f)(1)(i)(A) for three of five patients for seven years, and resolution of the case therefore turned upon application of the law to the undisputed facts. Accordingly, summary judgment in favor of CMS was appropriate, and the physician’s Medicare enrollment and billing privileges were revoked for failure to comply with the documentation requirements for enrollment privileges.

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