Client physician was trying to credential for a new job after years of training in fellowship. In doing so, she discovered revocation of her Medicare enrollment and billing privileges.
In a prior role, the physician worked for a telehealth company that prescribed durable medical equipment (DME). Medicare sent a request for records for patients who were treated during her time with the telehealth company. However, the request for records was not sent to the physician directly, but rather, a previous employer for whom client moonlighted. This was because her contact information on her initial Medicare application had contact information for her employer, not her personal contact information.
The request for records went unanswered and was never forwarded to the physician. Medicare sent a second request for records to the same employer address, which went unanswered and was never forwarded to the physician. As a result, Medicare revoked the physician’s privileges for failing to document or provide CMS access to documentation pursuant to 42 C.F.R. § 424.535(a)(10).
Chapman Law Group Attorney Wedad Suleiman argued that client had no knowledge of the request for medical records and/or revocation of her CMS Medicare privileges. A reconsideration request was filed with CMS arguing that the physician did not have knowledge of the requests; was not forwarded the requests by her previous employer; and was in possession of the medical records requested. The reconsideration provided all requested records and information to Medicare. Suleiman contended that good cause existed to accept the reconsideration despite being past the time to appeal. The reconsideration also indicated that the revocation of client’s Medicare privileges was a health detriment to the rural community where she resided.
Medicare accepted the reconsideration and advised it would review the information and make a determination up to 90 days from receipt. Only nine days after submitting the reconsideration, CMS reviewed the specific facts and circumstances; rescinded its determination revoking the physician’s Medicare enrollment and billing privileges; and reinstated client effective the date that existed prior to the revocation.
Physicians must ensure that their Medicare contact information is always current and specific to them personally and not their employer. CMS will send requests to the address on file, and in instances such as this one, the information requested may not always be forwarded to the physician. Physicians also need to be aware of their responsibilities that if they are working, or previously worked, for telehealth services that prescribe DME, they must keep records for seven years, per 42 C.F.R. § 424.535(a)(10):
A physician who orders DMEPOS [Durable Medical Equipment, Prosthetics, Orthotics and Supplies] must maintain documentation relating to the written orders or certifications or requests for payments for those items or services for 7 years from the date of the service. 42 C.F.R. § 424.516(f)(2). A physician must also provide access to the documentation upon request by CMS or a Medicare contractor. Id.
Further, if a physician instead claims that the records are retained with an employer’s electronic medical record, the medical records are no longer accessible, or that they are not custodian of the records, these are not viable excuses with Medicare. The Department of Health and Human Services Departmental Appeals Board has addressed this very issue, concluding that the rulemaking and revising of 42 C.F.R. § 516 specifically explains that both a physician and another entity may simultaneously be required to maintain records supporting DME orders, explaining 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.” 77 Fed. Reg. at 25,310 (emphasis added). 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.” Id.
Physicians need to be aware of these requirements so as to insulate themselves from such potential consequences as Medicare revocation and losing billing privilege.
Areas of Law:
Medicare & Medicaid Compliance
OIG & State Exclusions
This information is a sample of our past results. Prospective clients may not obtain the same or similar results. Every case is different and each case must be evaluated and handled on its own merits. The circumstances of your case may differ from the results provided. The information provided has not been reviewed or approved by the State Bar.