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From Health Law Daily, August 20, 2015

Billing Medicare for services provided to deceased beneficiaries warrants exclusion

By Mary Damitio, J.D.

CMS properly revoked the billing privileges of a podiatrist who submitted improper claims to Medicare for services provided to beneficiaries who were deceased at the time of the services, an administrative law judge ruled (ALJ). Despite the fact that the podiatrist argued that the claims were merely billing errors and not the result of any fraudulent intent, the regulations only require the submission of improper claims and do not require CMS to prove fraudulent intent prior to revoking billing privileges (Shimko v. CMS, Docket No. C-15-898, Decision No. CR4105, August 6, 2015).

Background. John M. Shimko, a podiatrist in North Carolina, was a participant in the Medicare program. In September 2014, Palmetto GBA, administrative contractor for CMS, notified Shimko that it identified 19 instances when he billed Medicare for services provided to deceased beneficiaries, and, as a result, it was revoking his Medicare billing privileges as of September 27, 2014, and he was being excluded from the program for three years.

Shimko submitted a corrective action plan in October 2014 in which he acknowledged submitting Medicare claims for services rendered to deceased beneficiaries, but also explained that providing services in nursing homes can create “confusing circumstances.” Shimko requested a reconsideration of Palmetto’s initial determination to revoke his billing privileges, but Palmetto upheld the revocation under 42 C.F.R. Sec. 424.535(a)(8)(1). Shimko thereafter requested a hearing before an ALJ.

Improper claims. Summary judgment was granted in favor of CMS because the undisputed evidence demonstrated that Shimko submitted claims to Medicare for services that could not have been rendered to the specific individuals on the dates claimed in the billing. The ALJ applied the pre-2015 version of the relevant regulation and determined that CMS may revoke Medicare billing privileges if a supplier submits claims for services that could not have been provided on the date of service (42 C.F.R. Sec. 424.535(a)).

Intent. The ALJ rejected Shimko’s arguments that his billing privileges should not be revoked because the erroneous billing claims were merely errors and not based on his fraudulent intent. Shimko argued that the billing errors resulted from an “auto-fill” feature on his office’s billing system and that the billed services were actually provided to living Medicare beneficiaries with similar names as the deceased beneficiaries and that the errors were not a pattern of improper claims. However, the language of the regulation does not require CMS to demonstrate that Shimko intended to defraud Medicare in order to revoke his billing privileges; it only requires improper claims. Additionally, the ALJ rejected Shimko’s argument that he should not be excluded from Medicare because his rate of billing error was very low. The regulation does not permit a certain percentage of claims to be improper. Shimko presented 17 improper claims, which was sufficient to demonstrate a pattern of improper claims.

Other beneficiaries. The ALJ also rejected Shimko’s arguments that he actually provided the claimed services to living beneficiaries with names similar to deceased beneficiaries that were identified in the improper claims. The plain language of the regulation provides that revocation is appropriate for claims for services that could not have been provided to the individual identified in the claim, not just “an individual.” The individual identified in a Medicare claim must be the individual who received the billed services.

Revocation date. The effective date of the billing privilege revocation should have been October 4, 2014. Pursuant to the relevant regulation, the revocation of billing privileges is effective 30 days after the notice of the revocation determination (42 C.F.R. Sec. 424.535(g)).

Due process. Shimko was not deprived of his due process rights because he was given notice of the basis of the revocation of his billing privileges and was afforded an opportunity to address the claims.

Companies: Palmetto GBA

MainStory: TopStory CoPNews CMSNews ProviderNews

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