Physicians Using Telehealth to Prescribe DME Could Lose CMS Credentials for Not Following This Rule

A doctor reading the list of the 7 elements of health care compliance on a laptop.

Failure to Hold Onto Records Could Lead to CMS Credentials Being Revoked for Up to 5 years — and a Career Shattered

As telehealth is becoming more widely used during the COVID-19 pandemic, physicians who use telehealth are warned to stay abreast of a crucial element in prescribing durable medical equipment (“DME”).

How serious is it? Failure to follow it can mean having your CMS credentials revoked for up to five (5) years — and your medical career essentially destroyed.

If you’re a physician working for telehealth services that prescribe DME, you must keep records for seven (7) years, per 42 C.F.R. § 424.535(a)(10):

A physician who orders DMEPOS 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.

Often, physicians who utilize telehealth and prescribe DME use their employer’s electronic record system. But it gets to be a problem when the employer goes out of business or is indicted, or the physician in question leaves his/her employer. Then, if CMS contacts the physician within the seven-year period asking for the records, and the physician cannot produce them, his/her CMS credentials can be revoked for 1-5 years.

Making things worse, many physicians are not aware of this statute. Once CMS comes knocking, these physicians are often left answering with, “My ex-employer has the records, not me,” or, “We used an EMR service, so don’t look to me.” But these claims fail, as recent federal decisions demonstrate:

Simply stating the records are not in his possession, that he maintains no control over them, and providing information about where CMS might find the records does not absolve him of the regulatory requirements. … It was Petitioner’s responsibility to maintain the records that contained his orders and signature and produce them upon CMS request. He cites no authority in support of his argument that CMS was required to provide him review of any documents in CMS possession as a precondition to Petitioner producing records he was required to maintain. Jackson v. CMS, DAB CR5151 (2018)

The April 27, 2012, CMS final rule implementing these requirements stated that the “rule places the responsibility for the maintenance of records on both the ordering and certifying physician and the provider and supplier.” 77 Fed. Reg. 25284, 25310 (April 27, 2012). Further, CMS clarified that even in the case of a physician referral for DMEPOS at a hospital or nursing home discharge, “[t]he physician or other eligible profession who signed the order or certification is responsible for maintaining and disclosing the documentation.” Id. … Petitioner’s lack of maintaining documents [was not] out of his control but rather a function of disregarding the documentation requirements, which provides CMS a legitimate basis for not granting an exception. Young v. CMS, DAB CR4539 (2016)

Keep Your Medicare Contact Current and Specific to You — Not Your Employer

If you are working or have worked for a telehealth service that prescribes DME, it’s on you to make sure your contact information for Medicare is updated.

One of our physician clients found this out the hard way. Medicare revoked her enrollment and billing privileges, after Medicare’s records request for patients treated during her time with a telehealth company were not sent to her directly. Instead, the request went to a prior employer for whom our client moonlighted, where it went unanswered and was never forwarded to her.

Attorney Wedad Suleiman, of Chapman Law Group’s compliance practice team, successfully secured the physician’s Medicare privileges, arguing that good cause existed for CMS reconsideration. Nonetheless, this case serves as a solid reminder that CMS will send requests for records to whatever address is on file — and that address might not always be accessible to the physician.

In addition, Medicare will not buy such excuses as:

    • the information in question is preserved via an employer’s electronic medical record
    • the records can no longer be accessed, or
    • the physician is not the record keeper.

As the Department of Health and Human Services Departmental Appeals Board has made clear, 42 C.F.R. § 516 is explicit in saying both the physician and another entity (such as an employer) could be required to maintain records that support DME orders. An April 21, 2021, CMS appellate decision explains 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.

The Healthcare Compliance Attorneys at Chapman Law Group Are National Telehealth Advisors for Healthcare Providers

As national lawyers for health care practitioners, we are here to provide the guidance healthcare providers need for compliance and regulatory protocol. If you are concerned about staying in compliance with CMS regulations for maintaining records, contact the national health law attorneys at Chapman Law Group today.

Our four national healthcare compliance law offices are in Detroit, MichiganMiami and Sarasota, Florida; and Los Angeles/Southern California.

Contact us today and let us put our know-how to work for you.

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Wedad Suleiman, LL.M.

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Healthcare Compliance, Civil Litigation

Michigan Office
1441 W. Long Lake Road, Suite 310
Troy, MI 48098
Phone: (248) 644-6326

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