Health Law Daily ALJs upheld CMS revocations, enrollment denials, and effective dates
Monday, March 21, 2016

ALJs upheld CMS revocations, enrollment denials, and effective dates

By Bryant Storm, J.D.

CMS properly revoked providers’ program participation in three cases, correctly denied a physician assistant’s enrollment in one case, and appropriately assigned an effective date of program participation in another, according to administrative law judge (ALJ) reviews in the HHS Departmental Appeals Board (DAB) Civil Remedies Division from February and March, 2016. An ALJ also held in one case that CMS improperly revoked a physician’s participation based upon an erroneous belief that his practice was not operational.

Tax evasion. CMS appropriately revoked a physician’s Medicare enrollment and billing privileges under 42 C.F.R. Sec. 424.535(a)(3) as a result of the physician’s felony conviction for crimes similar to tax evasion. An ALJ reasoned that the CMS determination was proper because tax evasion is among the crimes that Medicare regulations designate as harmful to the Medicare program. The ALJ held that the fact that seven years after the initial conviction the state court reduced the physician’s felony convictions to misdemeanors and then dismissed the charges did not change the fact that, for Medicare purposes, the physician was convicted of felony financial crimes, which are mandated grounds for a revocation of enrollment (Johnson v. CMS, Docket No. C-15-3708, Decision No. CR4524, February 8, 2016).

Felony conviction. A physician assistant (PA) was properly denied enrollment in the Medicare program as a result of a 2010 guilty plea, including a felony conviction, related to incidents involving burglary, assault, domestic violence, and an occurrence in which he pointed a loaded firearm at several people. The PA pleaded guilty to two felony counts and one misdemeanor and was sentenced to a jail term. Following the completion of a diversion agreement, the PA’s offenses were dismissed and his record was expunged. When the PA filed an application for enrollment in Medicare, CMS denied the application because the PA was within 10 years of his 2010 felony conviction and because the offense was per se detrimental to the Medicare program. Although the PA argued before an ALJ that his records no longer contained a felony conviction because under the diversion agreement his convictions were expunged, the ALJ held that for purpose of Medicare regulation, the term conviction included expunged convictions. Additionally, due to the type and severity of the PA’s conviction, the ALJ agreed with CMS that the offense was per se detrimental and required denial of the PA’s enrollment application (Hill v. CMS, Docket No. C-15-4205, Decision No. CR4526, February 9, 2016).

Address change. CMS properly revoked the Medicare enrollment and billing privileges of a durable medical equipment, prosthetics, orthotics, and supplies (DMEPOS) supplier after an investigator discovered that the provider was not operational at the address on file with CMS. The provider acknowledged that it was not operational at that address but argued that it attempted to submit a timely notification of its change of address. The provider asserted that, at the time of the attempted address update, it was improperly informed by a Medicare Administrative Contractor (MAC) employee that CMS’ online Provider Enrollment, Chain, and Ownership System (PECOS) could not update its address until the provider’s pending revalidation enrollment application was processed. An ALJ held that revocation was proper because 42 C.F.R. Sec. 424.502 required the provider to be operational at the address on file and the provider was not operational at that location. Additionally, the ALJ reasoned that the MAC employee’s mistake did not constitute “affirmative misconduct” sufficient to allow a reversal of the revocation (Foot Specialists of Northridge v. CMS, Docket No. C-15-3864, Decision No. CR4529, February 9, 2016).

Medical documentation. CMS properly revoked a physician’s Medicare enrollment and billing privileges because he did not comply with a CMS request for medical documentation related to his orders of DMEPOS supplies for 14 Medicare beneficiaries. Specifically, in response to CMS’ request for written orders and requests for payments for DMEPOS supplies, the physician responded that he tried to locate the records but could not do so. In a request for reconsideration, he insisted that he subsequently acquired the records and produced voluminous record for the agency. An ALJ held that the provider failed to meet requirements under 42 C.F.R. Sec. 424.535(a)(10) to provide CMS and its contractors with necessary and requested beneficiary care documentation. Accordingly, the ALJ reasoned that the revocation was proper and noted that the delayed production of the records was still not responsive to CMS’ original request (Young v. CMS, Docket No. C-15-3553, Decision No. CR4539, March 1, 2016).

Incomplete applications. A MAC appropriately assigned a participation date to a nurse practitioner (NP) based upon the date of receipt of her first complete Medicare application. Although the NP asserted that she was entitled to an earlier program participation date based upon prior submitted Medicare applications, an ALJ held that the effective date could not be either of the dates of the NP’s earlier application submissions because those Medicare applications were incomplete (Mullins v. CMS, Docket No. C-16-77, Decision No. CR4528, February 9, 2016).

House calls. A physician succeeded in his appeal of CMS’ decision to revoke his enrollment because CMS failed to show that he was not in compliance with Medicare regulations regarding an allegedly inoperable practice location. When a MAC was unable to conduct a site visit on two occasions because the premises were vacant and locked, CMS informed the physician that this enrollment was being revoked. The physician acknowledged that the location was vacant at the time of the attempted visits but asserted that he was nevertheless in compliance and operational because his practice specialized in house-call visits. An ALJ held, for purposes of 42 C.F.R. Sec. 424.535(a)(5), the term “operational” takes provider specialty into account. The physician presented evidence that his practice requires frequent house calls and his office was vacant and locked “most of the time.” Accordingly, the ALJ reasoned that despite being locked at the time of the visits, the practice was operational for Medicare purposes. Therefore, there was no basis for exclusion (Chang/Metro Home Visiting Physicians PLLC, v. CMS, Docket No. C-15-1577, Decision No. CR4540, March 3, 2016).

Companies: Foot Specialists of Northridge; Metro Home Visiting Physicians PLLC

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