Skip to main content


U.S. flag
      An official website of the United States government
              Here’s how you know
        Here’s how you knowDot gov**Official websites use .gov**
                 A **.gov** website belongs to an official government organization in the United States.
                  HTTPS**Secure .gov websites use HTTPS**
                 A **lock** (A locked padlock) or **https://** means you’ve safely connected to the .gov website. Share sensitive information only on official, secure websites. 
  Menu Close
          HHS Search block
    Search
        








  
  
    

  
      

                                      About HHS
    
                        
                              
      
      
      Programs & Services
    
                        
                              
      
      
      Grants & Contracts
    
                        
                              
      
      
      Laws & Regulations Breadcrumb
    Home
                              About
                              Agencies
                              DAB
                              Decisions
                              ALJ Decisions
                              2020
                              Blessed Home Health Services, Inc., DAB CR5614 (2020)
 Navigate to:
  Departmental Appeals Board (DAB)
    
                                                  
                                                    
            
      
      
      
      About DAB
                                            
            
            Organizational Overview
    
                                                  
                              
            
      
      
      
      Who are the Judges?
    
                                                  
                              
            
      
      
      
      DAB Divisions
    
                                                  
                              
            
      
      
      
      Contact DAB
    
                                                  
                                                    
            
      
      
      
      Filing an Appeal Online
                                            
            
            DAB E-File
    
                                                  
                              
            
      
      
      
      Medicare Operations Division (MOD) E-File
    
                                                  
                                                    
            
      
      
      
      Different Appeals at DAB
                                            
            
            Appeals to DAB Administrative Law Judges (ALJs)
                          
            
            Forms
    
                                                  
                              
            
      
      
      
      Procedures
    
                                                                
                                                    
            
      
      
      
      Appeals to Board
                          
            
            Practice Manual
    
                                                  
                              
            
      
      
      
      Guidelines
    
                                                  
                              
            
      
      
      
      Regulations
    
                                                  
                              
            
      
      
      
      National Coverage Determination Complaints
    
                                                                
                                                    
            
      
      
      
      Appeals to the Medicare Appeals Council (Council)
                          
            
            Forms
    
                                                  
                              
            
      
      
      
      Fully Integrated Duals Advantage (FIDA) Demonstration Project
    
                                                  
                                                    
            
      
      
      
      Alternative Dispute Resolution Services
                                            
            
            Sharing Neutrals
    
                                                  
                              
            
      
      
      
      ADR Training
    
                                                  
                              
            
      
      
      
      Other ADR Services
    
                                                  
                                                    
            
      
      
      
      DAB Decisions
                                            
            
            Board Decisions
    
                                                  
                              
            
      
      
      
      DAB Administrative Law Judge (ALJ) Decisions
    
                                                  
                              
            
      
      
      
      Medicare Appeals Council (Council) Decisions
    
                                    
                              
            
      
      
      
      Stakeholder Feedback
    
                                                  
                                                    
            
      
      
      
      Careers
                                            
            
            Open Career Opportunities
    
                                                  
                              
            
      
      
      
      Internships & ExternshipsText resize icon

                    




Blessed Home Health Services, Inc., DAB CR5614 (2020)








  
  
    

  
      
Department of Health and Human Services 
    DEPARTMENTAL APPEALS BOARD
          Civil Remedies Division





Blessed Home Health Services, Inc.
	(NPI: 1265723852; PTAN: 743124),
	Petitioner,
v.
Centers for Medicare & Medicaid Services.
Docket No. C-19-949Decision No. CR5614May 15, 2020

        
              
    

      DECISION
Palmetto GBA (Palmetto), an administrative contractor acting on behalf of the Centers for Medicare & Medicaid Services (CMS), revoked the Medicare enrollment and billing privileges of Petitioner, Blessed Home Health Services, Inc., pursuant to 42 C.F.R. § 424.535(a)(8)(ii) because Petitioner had a pattern or practice of submitting Medicare claims for home health services that lacked a valid physician signature as required by 42 C.F.R. § 424.22(a)(2).  For the reasons stated herein, I affirm the revocation of Petitioner’s Medicare enrollment and billing privileges.
I.  Background and Procedural History
Petitioner is a provider that was enrolled as a home health agency in the Medicare program.  *See*CMS Ex. 1 at 1; *see*42 U.S.C. § 1395x(u) (classifying home health agencies as “providers” in the Medicare program).
Agnes Anyalebechi is a nurse practitioner who practices in the State of Texas.  *See*CMS Exs. 9 at 1; 10 at 1.  According to CMS, Ms. Anyalebechi is the “owner” of Kindle Clinic, and Petitioner provided home health services to Kindle Clinic’s patients.  CMS Ex. 2 at 3.  Ms. Anyalebechi “work[ed] in collaboration with” a physician, Dr. Lynn
Page 2
Gibbs.  Petitioner’s Motion for Summary Judgment and Pre-Hearing Brief (P. Motion) at 5.  On February 1, 2016, Dr. Gibbs signed a letter that stated the following:  “To whom it may concern: This is [to] certify that I Lynn R. Gibbs MD authorized Agnes C. Anyalebechi NP of Kindle [C]linic Inc. to sign all Home Health orders on my behalf as his [sic] supervising physician.”1
  CMS Ex. 9 at 1.
On June 12, 2018, Qlarant, a Medicare program integrity contractor, conducted a records review with Dr. Gibbs, at which time he denied that 13 Medicare beneficiaries were his patients or that he had authorized home health services for those 13 patients that resulted in 38 Medicare claims.  CMS Ex. 5; *see*CMS Ex. 7 at 1-2 (CMS’s spreadsheet listing claims for home health services that were reported to have been ordered by Dr. Gibbs).
In a February 1, 2019 initial determination, Palmetto revoked Petitioner’s Medicare enrollment and billing privileges effective March 3, 2019, pursuant to 42 C.F.R. § 424.535(a)(8)(ii), based on Petitioner’s abuse of its billing privileges.  CMS Ex. 1.  In support of its determination, Palmetto explained the following:
The Centers for Medicare & Medicaid Services (CMS) has determined that [Petitioner] has engaged in a pattern or practice of submitting claims that fail to meet Medicare requirements, in violation of 42 C.F.R[.] § 424.535(a)(8)(ii).  [Petitioner] has failed to meet Medicare requirements by submitting claims for home health services that were provided in violation of 42 C.F.R. § 424.22, for reasons including, but not limited to, the fact that the home health services were provided without a valid certification of eligibility.
Dr. Lynn Gibbs is listed as the ordering/certifying physician on thirty-eight (38) home health service claims for thirteen (13) Medicare beneficiaries,
Page 3
submitted by [Petitioner], with episodes of care starting August 16, 2016 and continuing through November 22, 2017.  See Enclosure A for a sample set of ten claims.  Dr. Gibbs reviewed a list of beneficiaries for whom [Petitioner] submitted claims listing Dr. Gibbs as the ordering/certifying physician.  Dr. Gibbs attested that, for all beneficiaries listed, he did not order home health services.  Furthermore, claims data analysis revealed that Dr. Gibbs did not have a prior Part B relationship with those beneficiaries.  Therefore, Dr. Gibbs was not involved in the care, treatment, or monitoring of the beneficiaries whose medical records he reviewed.
CMS Ex. 1 at 1; *see*CMS Ex. 1 at 3 (Enclosure A; listing, *inter alia,* the following 10 beneficiaries and the corresponding claim submission dates:2
 A.S.A., S.L., C.J., J.H., H.S., C.L., C.E., J.P., M.D., and A.S.).  Palmetto also barred Petitioner from re-enrolling in the Medicare program for a period of three years.  CMS Ex. at 1 at 2.  Palmetto explained that Petitioner could seek reconsideration of its determination, and informed Petitioner that if it had “additional information that you would like a hearing officer to consider during the reconsideration, or if necessary, an administrative law judge to consider during a hearing, you must submit that information with your request for reconsideration.”  CMS Ex. 1 at 1-2.  Palmetto cautioned that “[t]his is your only opportunity to submit information during the administrative appeals process; you will not have another opportunity to do so unless an administrative law judge specifically allows you to do so under 42 [C.F.R. §] 498.56(e).”  CMS Ex. 1 at 2.
Petitioner, through its current counsel, submitted a six-page letter, dated March 27, 2019, in which it requested reconsideration of the initial determination and provided 52 additional pages of supporting patient records.  CMS Exs. 3, 4.  Each page of Petitioner’s combined 58-page submission contains a mark of “BH” in the lower right hand corner, along with sequential pagination from pages 1 through 58, with “BH1” through “BH6” marked on each page of the six-page letter requesting reconsideration, and “BH7” through “BH58” marked on each page of the “related records reflecting the relevant orders and communications between the respective patients, physicians, nurse practitioner and [Petitioner]” that Petitioner referenced in its letter as “Exhibit A.”  CMS Ex. 4; *see* CMS Ex. 3 at 2.  The supporting patient records pertain only to the nine specific patients Petitioner identified by name in its letter requesting reconsideration.  CMS Exs. 3 at 3; 4.  For unknown reasons, Petitioner addressed only two of the ten beneficiaries listed in Enclosure A to the initial determination, J.H. and S.L., in its letter and submission of supporting records.  CMS Exs. 3 at 3; 4 at 21-35; *see*CMS Ex. 1 at 3.3
Page 4
Among its arguments against the revocation of its enrollment and billing privileges, Petitioner stated the following in its letter requesting reconsideration:  “A careful review of Dr. Gibbs and his relationship with Agnes Anyalebechi of Kindle Clinic will show that Kindle Clinic had an ongoing relationship with Dr. Gibbs during the entire period at issue and all related orders were signed and submitted by Dr. Gibbs and/or Agnes Anyalebechi of Kindle Clinic.”  CMS Ex. 3 at 4.
CMS, through its Provider Enrollment & Oversight Group, issued a reconsidered determination on May 16, 2019, in which it upheld the revocation of Petitioner’s Medicare enrollment and billing privileges pursuant to 42 C.F.R. § 424.535(a)(8)(ii).  CMS Ex. 2.  In upholding the revocation of Petitioner’s enrollment and billing privileges, CMS explained:
Under § 424.535(a)(8)(ii), CMS may revoke a currently enrolled provider’s Medicare billing privileges and any corresponding provider agreement when CMS determines that the provider has a pattern or practice of submitting claims that fail to meet Medicare requirements. [Petitioner] is a provider of home health services and as such, is required to provide services and submit claims for payment in accordance with § 424.22. . . .
* * * *
[I]n addition to the lack of the requisite treating relationship between the nine beneficiaries and Dr. Gibbs, [Petitioner] acknowledges in its reconsideration request that claims where Dr. Gibbs was the ordering/certifying physician were noncompliant because there was an impermissible delegation of his authority to sign home health certification documents to Agnes Anyalebechi – who is not a physician.  This signature delegation is in violation of § 424.22 and any claims arising out of the delegation are noncompliant.
Page 5
CMS Ex. 2 at 4.  CMS determined that Petitioner “blindly relied on Kindle in ensuring that the orders and certifications it received were Medicare compliant.”  CMS Ex. 2 at 5.  CMS found that Petitioner “engaged in a pattern and practice of abuse of billing privileges” and that the revocation of Petitioner’s Medicare enrollment and billing privileges was appropriate.  CMS Ex. 2 at 5.
On July 12, 2019, Petitioner electronically filed a request for an ALJ hearing, along with various supporting documents, to include 127 pages of records pertaining to eight beneficiaries.4
  Petitioner also submitted a document with the file name “392047_Reconsideration_Letter_3.27.19,” which is a complete copy of its 58-page request for reconsideration with supporting documents.
The Civil Remedies Division acknowledged receipt of Petitioner’s request for hearing and issued my Standing Pre-Hearing Order (Pre-Hearing Order) directing the parties to file pre-hearing exchanges in accordance with specific requirements and deadlines.  CMS filed a motion for summary judgment and pre-hearing brief (CMS Br.), along with 9 proposed exhibits (CMS Exs. 1-5 and 7-10).  Petitioner filed a response to CMS’s motion for summary judgment (P. Br.) and six proposed exhibits (P. Exs. 1-6); nearly a month later, Petitioner filed a motion for summary judgment and pre-hearing brief, at which time it re‐submitted its proposed exhibits.  CMS filed a reply to Petitioner’s motion for summary judgment.  CMS also filed objections5
 (CMS Objections) to Petitioner’s evidentiary exhibits, at which time it filed proposed supporting exhibit CMS Ex. 11 (testimony of Minisha Hicks, Director of CMS’s Division of Compliance and Appeals within CMS’s Provider Enrollment & Oversight Group).  Petitioner filed a response to CMS’s evidentiary objections (P. Response to Objections), along with objections to CMS Ex. 11 (P. Objections).
Both parties’ objections are premised on 42 C.F.R. § 498.56(e), which requires that I examine whether good cause exists for a *provider or supplier*to submit new documentary
Page 6
evidence for the first time at the ALJ hearing level.6
  42 C.F.R. § 498.56(e)(1).  I must exclude any new documentary evidence if I do not find good cause for its submission for the first time at the ALJ level.  42 C.F.R. § 498.56(e)(2)(ii); *Care Pro Home Health, Inc.*, DAB No. 2723 at 11 (2016) (“In enrollment revocation cases, an ALJ must exclude ‘new documentary evidence’ – that is, documentary evidence that a provider did not previously submit to CMS at the reconsideration stage (or earlier) – unless the ALJ determines that ‘the provider or supplier has good cause for submitting the evidence for the first time at the ALJ level.’  42 C.F.R. § 498.56(e)(1).”); *see*Pre-Hearing Order § 10 (directing Petitioner to contemporaneously file with its pre-hearing exchange a statement of good cause regarding the submission of any new documentary evidence).  While “good cause” is not defined in the regulations, the Departmental Appeals Board (DAB) has explained that, in showing good cause in such a situation, a party must explain its “failure to submit [evidence] at the reconsideration stage (or earlier).”  *Care Pro,*DAB No. 2723 at 13.
Petitioner objects to CMS’s submission of CMS Ex. 11 because CMS did not file Ms. Hicks’s declaration with its pre-hearing exchange or provide good cause, pursuant to 42 C.F.R. § 498.56(e), for its submission of this declaration.  P. Objections.  In her declaration, Ms. Hicks explained that she had “reviewed the documents in P. Ex. 1 and P. Ex. 2 and these records were not previously submitted by Petitioner for CMS’s consideration on reconsideration.”  CMS Ex. 11 at 2.  Ms. Hicks further explained that the only evidence Petitioner submitted in support of its request for reconsideration consisted of a document containing 52 pages of records involving 9 specific Medicare beneficiaries (B.B., T.B., J.D., J.H., S.L., G.O., E.R., P.S., and T.T.).  CMS Ex. 11 at 1-2.
I overrule Petitioner’s objections to CMS Ex. 11.  First, 42 C.F.R. § 498.56(e) is inapplicable to CMS Ex. 11 because the plain language of 42 C.F.R. § 498.56(e) states that the good cause requirement applies to a *provider or supplier*; CMS is not a provider or supplier that is bound by that provision.  I additionally note that CMS did not submit CMS Ex. 11 as evidence in support of its arguments with respect to the revocation of Petitioner’s enrollment and billing privileges, but rather submitted CMS Ex. 11 to refute Petitioner’s unsupported allegation that it “should not be required to show good cause for submitting P. Ex. 1 and P. Ex. 2 because this evidence was submitted prior to and during the ‘reconsideration stage.’”  *See*P. Response to Objections.  Ms. Hicks’s testimony is limited to a narrow procedural issue regarding the admissibility of proposed exhibits,7
 and CMS could not have anticipated that Petitioner would make such a claim when it
Page 7
filed its pre-hearing exchange.  In fact, when Petitioner submitted its request for hearing, it did not argue that CMS had failed to consider any evidence.  *See*CMS Ex. 2 at 1-2 (CMS’s listing of the evidence it considered at the time it issued the reconsidered determination); *see*42 C.F.R. § 498.40(b)(1) (directing a party filing a request for hearing to identify the specific issues, findings of fact, and conclusions of law with which it disagrees).  Although I admit CMS Ex. 11, it was not necessary to rely upon this evidence in determining that P. Exs. 1 and 2 must be excluded from the evidentiary record.
CMS opposes the admission of five of Petitioner’s six proposed exhibits (P. Exs. 1, 2, 4, 5 and 6) because Petitioner did not submit these documents with its request for reconsideration and did not allege good cause, as required by section 498.56(e), for their initial submission at the ALJ hearing level.  CMS Objections.
**P. Ex. 1**, which Petitioner describes as “Original Certification Documents,” is identical to the 127-page document it submitted with its request for hearing that contains documents pertaining to CJ., C.L., H.S., J.P., M.D., P.J., S.G., and S.L. 8
  *See*Docket Entry 1d, “392045_Additional_ Evidence.”
	**P. Ex. 2**, which Petitioner describes as “Re-Certification Documents with Physician signature,” is an 81-page document containing records for the following beneficiaries:  J.H., S.G., M.D., J.P., C.J., H.S., C.L., and P.J.9
	**P. Ex. 4**, which Petitioner describes as “Blessed Home Health Services, Inc. Website,” appears to be a printout from another website, https://www.carepathways.com, that reports various “quality of care” percentile ranking scores ranging from 11% to 100%.
	**P. Ex. 5** is a July 15, 2019 printout of the American Medical Association website’s “DoctorFinder” entry for Dr. Lynn Gibbs.
	**P. Ex. 6** is a July 15, 2019 printout from the Texas Board of Nursing website reporting that Agnes Chinenye Anyalebechi is licensed as a registered nurse.I reiterate that Palmetto, in its February 1, 2019 determination, informed Petitioner that it needed to submit any supporting evidence with its request for reconsideration and warned Petitioner that it may not have another opportunity to do so, stating:
Page 8
[I]f you have additional information that you would like a hearing officer to consider during the reconsideration or, if necessary, an administrative law judge to consider during a hearing, you must submit that information with your request for reconsideration.  This is your only opportunity to submit information during the administrative appeals process; you will not have another opportunity to do so unless an administrative law judge specifically allows you to do so under 42 CFR § 498.56(e).
CMS Ex. 1 at 1-2.  Petitioner, through its counsel and in response to CMS’s objections, makes an unsupported allegation that “the records in P. Ex. 1 were made available to CMS as an attachment to Petitioner’s Request for Reconsideration dated March 27, 2019” and “this evidence was submitted prior to and during the ‘reconsideration stage.’”  P. Response to Objections at 1-2.  I exclude this evidence because Petitioner submitted it for the first time during the hearing stage of the administrative appeals process and has not alleged, much less shown, good cause for its late submission.
As I previously discussed, Petitioner, which continues to be represented by the same counsel who filed its request for reconsideration, submitted a six-page letter requesting reconsideration in March 2019, along with 52 pages of supporting patient records for nine of its patients (B.B., T.B., J.D., J.H., S.L., G.O., E.R., P.S., and T.T.).  CMS submitted these documents as CMS Exs. 3 and 4.  *See also*DAB E-File Docket Entry 1f.  The pages of Petitioner’s reconsideration request bear the previously mentioned sequential markings from BH1 through BH58.  CMS Exs. 3 at 1‐6 (letter marked “BH1” through “BH6”), 4 at 1-52 (supporting patient records marked “BH7” through “BH58”).
In its reconsidered determination, CMS listed the six exhibits that constituted the evidentiary record at the time of its determination.  CMS Ex. 2 at 1-2.  CMS described Exhibit 1 as a “Reconsideration request, dated March 27, 2019, from Wayne E. Revack of Gill, Revack, Samaan & Muller, LLP, on behalf of [Petitioner] to CMS” and Exhibit 2 as “(Provider’s Exhibit A):  Patient medical records, physician orders, face-to-face encounter forms, and home health certification forms, submitted by [Petitioner] for Medicare beneficiaries [B.B.], [T.B.], [J.D.], [J.H.], [S.L.], [G.O.], [E.R.], [P.S.], and [T.T.].”).  CMS Ex. 2 at 1.
Petitioner, which has not disputed this characterization of the evidentiary record in either its request for hearing or its pre-hearing exchange filings, stated in its request for hearing that it had enclosed a copy of the “March 27th, 2019, Reconsideration Letter.”  Request for Hearing at 2; *see*CMS Ex. 2 at 1.  Consistent with this statement, Petitioner uploaded a file, “392047_Reconsideration_Letter_3.27.19,” that is identical to CMS Exs. 3 and 4, including the same sequential page markings on each of the 58 pages.  *Compare*DAB E‐File Docket Entry 1f *with*CMS Exs. 3, 4.
Page 9
The additional records Petitioner submitted with its request for reconsideration align with the names Petitioner listed on the third page of its letter; in fact, Petitioner submitted the supporting patient records in the same order that it listed the names of its patients in its letter.  *See*DAB E-File Docket Entry 1f (“March 27th, 2019, Reconsideration Letter”); CMS Exs. 3 at 3 (list of names in Petitioner’s letter (B.B., T.B., J.D., J.H., S.L., G.O., E.R., P.S., and T.T.)); 4 at 1-6 (records for B.B. (“BH7”-“BH12”)); 7-14 (records for T.B. (“BH13”-“BH20”)); 15-20 (records for J.D. (“BH21”-“BH26”)); 21-27 (records for J.H. (“BH27”-“BH33”)); 28-35 (records for S.L. (“BH34”-“BH41”)); 36-39 (records for G.O. (“BH42”-“BH45”)); 40-43 (records for E.R. (“BH46”-“BH49”)); 44-48 (records for P.S. (“BH50”-“BH54”)); 49-52 (records for T.T. (“BH55”-“BH58”)).  Petitioner did not identify any other beneficiaries by name in its request for reconsideration, nor did it submit any records for any other beneficiaries.  DAB E-File Docket Entry 1f; CMS Exs. 3, 4.
It is noteworthy that, with respect to the ten beneficiaries whom Palmetto identified in Enclosure A, a “sample set of ten claims” to its initial determination (CMS Ex. 1 at 1, 3, listing claims involving A.S.A., S.L., C.J., J.H., H.S., C.L., C.E., J.P., M.D., and A.S.), Petitioner addressed and submitted records for only *two* of those beneficiaries, J.H. and S.L., when it submitted its request for reconsideration.  DAB E-File Docket Entry 1f; CMS Ex. 4 at 21-35; *see*CMS Exs. 1 at 3; 3 at 3 (Petitioner’s list of nine specific beneficiaries, with only two of those beneficiaries, J.H. and S.L., being listed on Palmetto’s sample set of claims).  The other seven beneficiaries Petitioner listed in its request for reconsideration, and for whom it furnished records, were not listed in Enclosure A to the initial determination.10
  CMS Exs. 1 at 1, 3; 3 at 3; 4 at 1-20, 36-52.  In fact, Petitioner argued that other physicians had ordered home health services for most of these patients, which naturally explains why Palmetto did not list these beneficiaries in the sample set of claims involving beneficiaries for whom Dr. Gibbs had purportedly ordered home health services.  CMS Ex. 3 at 3.
Petitioner changed course when it filed its request for hearing, in that it specifically identified seven new beneficiaries that it had not previously referenced in its request for reconsideration.  *Compare* Request for Hearing at 2 (listing S.L., C.J., J.H., J.P., S.G., P.J., H.S., M.D., and C.L.) *with*Request for Reconsideration (CMS Ex. 3 at 3) (listing B.B., T.B., J.D., J.H., S.L., G.O., E.R., P.S., and T.T.).  The list Petitioner provided in its request for hearing mirrors the nine beneficiaries that CMS listed in a footnote in the reconsidered determination (CMS Ex. 2 at 4), five of whom had already been listed in Enclosure A to the initial determination, but for whom Petitioner did not previously submit any records (C.J., J.P., H.S., M.D., and C.L.)  CMS Exs. 1 at 3; 4.  Further,
Page 10
Petitioner had not previously submitted any records for beneficiaries S.G. and P.J.11
  CMS Exs. 3 at 3; 4.
With its request for hearing, Petitioner submitted a 127-page document, with the file name “392045_Additional_Evidence.pdf,” that appears at Entry 1d of the DAB E-File electronic docket for this case.  That filing contains records for eight beneficiaries Petitioner specifically identified in its request for hearing (C.J. (pages 1-12), C.L. (pages 13-30), H.S. (pages 31-43), J.P (pages 44-55), M.D. (pages 56-85), P.J. (pages 86-96), S.G. (pages 97-114), and S.L. (pages 115-127)).  *See*Request for Hearing at 2 (Petitioner’s statement that it submitted “Treatment records for the nine (9)[12
] beneficiaries at issue”).  Based on a comparison with Petitioner’s reconsideration submission, Petitioner’s submission of records for C.J., C.L., H.S., J.P., and M.D. with the hearing request was new, and it submitted additional records for S.L. that it had not previously submitted.  *See*CMS Ex. 4 at 28-35.  Petitioner re-submitted an identical copy of this 127-page document as a proposed exhibit, P. Ex. 1, when it filed its pre-hearing exchange.  *See*Petitioner’s Proposed Exhibit List (describing P. Ex. 1 as “Original Certification Documents”).
Petitioner also filed another proposed exhibit, P. Ex. 2, that is a compilation of beneficiary records for J.H., S.G., M.D., J.P., C.J., H.S., C.L., and P.J., totaling 81 pages, that it had not previously submitted with either its request for reconsideration or its request for hearing.  *See*Petitioner’s Proposed Exhibit List (describing P. Ex. 2 as “Re‐Certification Documents with Physician signature).   DAB E-File Docket Entry 10a.
Other than Petitioner’s cursory and bald assertion that it had, in fact, submitted P. Exs. 1 and 2 with its request for reconsideration, Petitioner has not submitted any evidence, such as witness testimony or documentary evidence, in an effort to demonstrate that it had submitted those records with its request for reconsideration.  To the contrary, the record supports that the only evidence Petitioner submitted with its reconsideration request was the 52-page submission of records pertaining to B.B., T.B., J.D., J.H., S.L., G.O., E.R., P.S., and T.T.  *See*CMS Exs. 3 at 2-3 (request for reconsideration, marked “BH1” through “BH6”, referencing B.B., T.B., J.D., J.H., S.L., G.O., E.R., P.S., and T.T., and explaining that it had submitted an exhibit that contained “related records.”); 4 (records supporting request for reconsideration, marked “BH7” through “BH58”); DAB E-File Docket Entry 1f (“March 27, 2019, Reconsideration Letter,” to include supporting
Page 11
exhibits, marked “BH1” through “BH58” and mirroring CMS Exs. 3 and 4); CMS Ex. 2 at 1 (reconsidered determination listing the evidence Petitioner had submitted, to include the names of the nine beneficiaries for whom Petitioner had submitted records); Request for Hearing (failing to identify any purported error of fact or law relating to CMS’s identification of the evidence submitted with its reconsideration request and its consideration of that evidence).
Petitioner has not alleged good cause for submitting P. Exs. 1 and 2 at the ALJ hearing level for the first time, nor has it shown that it previously submitted those documents.  Therefore, this evidence is inadmissible.  42 C.F.R. § 498.56(e)(2)(ii) (stating that “[i]f the ALJ determines that there was not good cause for submitting the evidence for the first time at the ALJ level, the ALJ must exclude the evidence from the proceeding and may not consider it in reaching a decision”); *Care Pro,*DAB No. 2723 at 11 (“In enrollment revocation cases, an ALJ must exclude ‘new documentary evidence’ – that is, documentary evidence that a provider did not previously submit to CMS at the reconsideration stage (or earlier) – unless the ALJ determines that ‘the provider or supplier has good cause for submitting the evidence for the first time at the ALJ level.’  42 C.F.R. § 498.56(e)(1).”).
With respect to P. Exs. 4, 5, and 6, Petitioner has not provided good cause for its failure to submit these documents with its request for reconsideration.  Therefore, these documents are not admissible.  42 C.F.R. § 498.56(e)(1).  Further, with respect to P. Ex. 4, the source of the reported information is unknown, and Petitioner has made no effort to establish the veracity of the information reported on the https://www.carepathways.com website.13
  With respect to P. Exs. 5 and 6 (reports that Dr. Gibbs is a physician and Ms. Anyalebechi is licensed as a nurse), the parties mutually agree that Dr. Gibbs is a physician and Ms. Anyalebechi is a nurse practitioner.  CMS Exs. 2 at 2-3; 4 at 3.  This new evidence is simply unnecessary.
Finally, it is not lost on me that, at best case, Petitioner was grossly mistaken when it stated that it had previously submitted the documents contained in P. Exs. 1 and 2, or at worst case, it misrepresented that it had previously submitted this evidence with its request for reconsideration.  CMS has not sought sanctions against Petitioner or its counsel for making such misrepresentations and, therefore, I will not *sua sponte*address whether such conduct warrants the imposition of sanctions.  *See*Civil Remedies Division Procedures § 23.
I admit CMS Exs. 1-5 and 7-11 and P. Ex. 3 into the evidentiary record.  Because a hearing is unnecessary for the purpose of cross-examination of any witnesses, this case is
Page 12
ready for a decision on the written record.  Pre‐Hearing Order §§ 12-14.  Although each party has filed a motion for summary judgment, I will issue a decision on the merits.
II.  Issue
Whether CMS has the authority to revoke Petitioner’s Medicare enrollment and billing privileges pursuant to 42 C.F.R. § 424.535(a)(8)(ii).
III.  Jurisdiction
I have jurisdiction to hear and decide this case.  42 C.F.R. §§ 498.1(g), 498.3(b)(17), 498.5(*l*)(2);*see also* 42 U.S.C. § 1395cc(j)(8).
IV.  Findings of Fact, Conclusions of Law, and Analysis**14**
***Petitioner is a home health agency that has been in operation since 2008.***
	***Pursuant to 42 U.S.C. §*** ***1395f(a)(2)(C)* *as it existed at the time of the revocation, only a physician may certify the need for home health services, and 42 C.F.R §*** ***424.22(a)(2), 15
 requires that the certifying physician sign and date the certification of need for home health services.***
	***Ms. Agnes Anyalebechi, a nurse practitioner affiliated with Kindle Clinic, worked in collaboration with Dr. Lynn Gibbs.***
	***Petitioner does not dispute that Dr. Gibbs authorized “Agnes C. Anyalebechi NP of Kindle [C]linic Inc. to sign all Home Health orders on [his] behalf.”***
	***Petitioner concedes that “all related orders were signed and submitted by Dr. Gibbs and/or Agnes Anyalebechi of Kindle Clinic.”***Page 13
***Petitioner provided home health services to S.L., C.J., J.H., H.S., C.L., J.P., and M.D., and submitted claims for Medicare reimbursement for those services between January 18 and December 4, 2017.***
	***Dr. Gibbs is listed as the ordering physician on the claims for home health services provided to S.L., C.J., J.H., H.S., C.L., J.P., and M.D.***
	***On June 9, 2018, Dr. Lynn Gibbs signed a statement, witnessed by two Qlarant representatives, in which he certified that he had not ordered home health services for a number of Medicare beneficiaries, to include S.L., C.J., J.H., H.S., C.L., J.P., and M.D.***
	***S.L., C.J., J.H., H.S., C.L., J.P., and M.D. are listed in Exhibit A to the initial determination, which is a sample set of home health services claims for whom Dr. Gibbs is listed as the ordering physician but had reported that he did not order those services.***
	***Petitioner has not submitted any admissible evidence regarding the claims it submitted for the services it provided to C.J., H.S., C.L., J.P., and M.D.***
	***Petitioner has submitted admissible evidence relating to the home health services it provided to S.L. and J.H., to include orders it received from Kindle Clinic and copies of face-to-face encounters conducted by Ms. Anyalebechi.***
	***Petitioner has not demonstrated that Dr. Gibbs signed the orders certifying the need for home health services for S.L., C.J., J.H., H.S., C.L., J.P., and M.D.***
	***Because, over a considerable period of approximately 11 months, from January 18 through December 4, 2017, Petitioner submitted multiple claims for Medicare services involving at least seven beneficiaries for whom a physician had not signed the order certifying the need for home health services, it engaged in a pattern or practice of submitting improper claims to Medicare.***
	***Palmetto and CMS had a legitimate basis to revoke Petitioner’s Medicare enrollment pursuant to 42 C.F.R. §*** ***424.535(a)(8)(ii).***Pursuant to 42 U.S.C. § 1395cc(j)(1)(A), CMS has promulgated enrollment regulations.  *See* 42 C.F.R. § 424.500 *et seq*.  These regulations give CMS the authority to revoke the billing privileges of an enrolled provider if CMS determines that certain circumstances
Page 14
exist.  42 C.F.R. § 424.535(a).  Relevant to this case, CMS may revoke a provider’s billing privileges when it determines that billing privileges have been abused as follows:
(ii)  CMS determines that the provider or supplier has a pattern or practice of submitting claims that fail to meet Medicare requirements.  In making this determination, CMS considers, as appropriate or applicable, the following:
(A)  The percentage of submitted claims that were denied.
	(B)  The reason(s) for the claim denials.
	(C)  Whether the provider or supplier has any history of final adverse actions (as that term is defined under § 424.502) and the nature of any such actions.
	(D)  The length of time over which the pattern has continued.
	(E)  How long the provider or supplier has been enrolled in Medicare.
	(F)  Any other information regarding the provider or supplier’s specific circumstances that CMS deems relevant to its determination as to whether the provider or supplier has or has not engaged in the pattern or practice described in this paragraph.
42 C.F.R. § 424.535(a)(8)(ii).16
  At the time of the initial determination, CMS could impose a bar on re‐enrollment for a minimum of one year, but no more than three years.  42 C.F.R. § 424.535(c)17
; *see*CMS Ex. 1 at 2 (initial determination imposing a three-year re‐enrollment bar).
Page 15
Medicare requirements for home health services are addressed in 42 C.F.R. § 424.22.18
  As relevant here, a physician must certify a beneficiary’s eligibility for home health services.  42 C.F.R. § 424.22(a)(2); *see*42 U.S.C. § 1395f(a)(2)(C).  A certification that home health services are necessary “must be signed and dated by the physician who establishes the plan.”19
  42 C.F.R. § 424.22(a)(2).  Pursuant to 42 C.F.R. § 424.22(a)(1)(v), a “face-to-face encounter” with the beneficiary for whom home health services are being certified must be performed by the certifying physician or an authorized non-physician practitioner.  *See*42 U.S.C. § 1395f(a)(2)(C).  A nurse practitioner, as a non-physician practitioner, is authorized to perform the face‐to‐face encounter if he or she “is working in accordance with State law and in collaboration with the certifying physician . . . .”20
  42 C.F.R. § 424.22(a)(1)(v)(A)(3).  Medicare Part B covers nurse practitioner services under certain circumstances, to include, but not limited to, when the services are performed “while working in collaboration with a physician,” as described below:
(i)  Collaboration is a process in which a nurse practitioner works with one or more physicians to deliver health care services within the scope of
Page 16
the practitioner’s expertise, with medical direction and appropriate supervision as provided for in jointly developed guidelines or other mechanisms as provided by the law of the State in which the services are performed;
(ii)  In the absence of State law governing collaboration, collaboration is a process in which a nurse practitioner has a relationship with one or more physicians to deliver health care services.  Such collaboration is to be evidenced by nurse practitioners documenting the nurse practitioners’ scope of practice and indicating the relationships that they have with physicians to deal with issues outside their scope of practice.  Nurse practitioners must document this collaborative practice with physicians.
(iii)  The collaborating physician does not need to be present with the nurse practitioner when the services are furnished or to make an independent evaluation of each patient who is seen by a nurse practitioner.
42 C.F.R. § 410.75(c)(3); *see*Medicare Benefit Policy Manual, Pub. 100-02, Ch. 15, § 200(D) (eff. Nov. 19, 2007) (containing substantially similar guidance).
CMS has demonstrated that revocation of Petitioner’s enrollment and billing privileges is warranted based on Petitioner’s pattern or practice of submitting claims for home health services that were not compliant with Medicare requirements.  42 C.F.R. § 424.535(a)(8)(ii).  Specifically, Petitioner failed to ensure that the claims it submitted contained the signature of the certifying physician, as required by 42 C.F.R. § 424.22(a)(2).  CMS identified a number of instances in which Petitioner submitted claims for home health services for beneficiaries for whom Dr. Gibbs is listed as the ordering physician, to include the claims for services provided to S.L., C.J., J.H., J.P., H.S., M.D., and C.L.21
  CMS Ex. 7 at 1-2.  On June 9, 2018, Dr. Gibbs certified, in the presence of two witnesses, that he had not ordered home health services for any of those beneficiaries.  CMS Ex. 5 at 1-2.  When given an opportunity to respond to these allegations, Petitioner did not submit evidence showing that Dr. Gibbs had actually certified the need for home health services or signed the orders for those claims.  CMS Exs. 3, 4.  Rather, Petitioner acknowledged that the orders were signed by Dr. Gibbs *and/or*Ms. Anyalebechi, which it argued was permissible based on Kindle Clinic’s
Page 17
“ongoing relationship with Dr. Gibbs.”  CMS Ex. 3 at 4.  Petitioner contends that “orders “bared [sic] the signature of Dr. Gibbs and/or his Nurse Practitioner, Agnes Anyalebechi, whom Dr. Gibbs previously authorized to sign all Home Health orders on his behalf.”  P. Br. at 2.  Petitioner concedes that it was aware that Dr. Gibbs may not have signed the orders or certified the need for home health services, as mandated by 42 C.F.R. § 424.22(a), and therefore, Petitioner engaged in a pattern or practice of submitting multiple invalid claims for no fewer than seven Medicare beneficiaries over a span of at least 11 months.  *See*CMS Exs. 1 at 3; 7 at 1-2.  Revocation is warranted pursuant to 42 C.F.R. § 424.535(a)(8)(ii) because Petitioner had a pattern or practice of submitting claims that failed to meet Medicare requirements.
Petitioner contends that revocation is not warranted, arguing that “orders, certifications, and re-certifications” were properly signed by Dr. Gibbs and/or Ms. Anyalebechi.  P. Br. at 2.  Petitioner further argues that CMS has not proven that the signatures on the physician orders were not provided by Dr. Gibbs.  P. Br. at 4-5.  However, CMS does not need to prove that the actual signatures on the orders are not those of Dr. Gibbs; it has provided an attestation by Dr. Gibbs that he did not order home health services for any of the beneficiaries at issue (CMS Ex. 5), and it has provided evidence that Dr. Gibbs improperly delegated his signature authority to a nurse practitioner.  CMS Ex. 9 at 1.  Further, Petitioner has repeatedly conceded that the physician orders may have been signed by Ms. Anyalebechi rather than a physician.  *See*CMS Ex. 3 at 4 (Petitioner’s recognition that, based on an “ongoing relationship” between Dr. Gibbs and Ms. Anyalebechi, the orders it received from Kindle Clinic were signed by Dr. Gibbs and/or Ms. Anyalebechi); P. Br. at 2 (arguing that Dr. Gibbs had authorized Ms. Anyalebechi to sign home health orders and that it received orders that were signed by Dr. Gibbs and/or Ms. Anyalebechi); P. Motion at 8 (arguing that because Ms. Anyalebechi had a collaboration agreement with Dr. Gibbs, it was permissible for her “to sign Dr. Gibbs’ signature.”).  CMS has offered compelling evidence that Dr. Gibbs did not sign the orders and physician certifications, as required by 42 C.F.R. § 424.22(a)(2), and Petitioner, as a home health agency, should have known that certifications for home health eligibility must be signed by a *physician,* as required by 42 C.F.R. § 424.22(a)(2).  Petitioner understood that Ms. Anyalebechi may be the signatory on physician certifications for the need for home health services, yet it did not exercise due diligence to ensure that orders or certifications received from Kindle Clinic had actually been signed by a physician.  Revocation is warranted based on Petitioner’s pattern and practice of submitting improper claims purportedly ordered by Dr. Gibbs.  42 C.F.R. § 424.535(a)(8)(ii).
With respect to Petitioner’s allegation that CMS should have proven that the signatures on the claims were not those of Dr. Gibbs, I note that Petitioner has not submitted admissible evidence regarding five of the seven claims I have focused on in this decision.  Therefore, there is no evidence that, with respect to C.J., J.P., H.S., M.D., and C.L., Dr. Gibbs signed the required physician orders.  And although Petitioner submitted admissible evidence regarding S.L. and J.H., Petitioner’s submissions do not establish
Page 18
that *Dr. Gibbs*, himself, signed the orders or certified the need for home health services, as required by 42 C.F.R. § 424.22(a)(2).  For example, the records Petitioner provided for S.L. and J.H. both include a pre-printed form on Kindle Clinic letterhead, entitled “Home Health Care Services Physician Order,” that shows a pre-printed signature on the line corresponding to the “Physician’s Signature” and purports to be a physician’s order to, *inter alia*, “Admit [patient] to home health services.”22
  CMS Ex. 4 at 21, 28.  Petitioner’s submissions also show that Kindle Clinic, through Ms. Anyalebechi, conducted the face‐to-face encounter for both S.L. and J.H.  CMS Ex. 4 at 22-24, 30-33.  Likewise, Petitioner’s submissions purport to show that a signature appears on the line adjacent to “Physician Signature” on a face-to-face visit attestation on Kindle Clinic letterhead.  CMS Ex. 4 at 25, 29.  Petitioner’s submissions further show that an individual signed and dated the Home Health Certification and Plan of Care (Form CMS-495).  CMS Ex. 4 at 26, 34.  Despite these submissions of evidence pertaining to S.L. and J.H., Petitioner has
Page 19
not submitted evidence that *Dr. Gibbs* signed the physician orders and certified the need for home health services.   42 C.F.R. § 424.22(a)(2).
Petitioner argues that “CMS has not proven a *prima facie* case that [Petitioner] was not in substantial compliance with Medicare billing requirements.”  P. Br. at 6 (emphasis omitted).  However, it appears that Petitioner misunderstands the relatively low burden that CMS must meet to establish a *prima facie*case.  The DAB has explained that “CMS has the burden of coming forward with evidence related to disputed findings that is sufficient (together with any undisputed findings and relevant legal authority) to establish a prima facie case of noncompliance with a regulatory requirement.”  *Evergreene Nursing Care Ctr.*, DAB No. 2069 at 7 (2007).  The DAB has further applied this burden to enrollment cases such as the instant case, explaining:
The [DAB] applies to provider and supplier enrollment appeals the same burden of proof that it applies to other cases subject to the appeal procedures in Part 498.  [Internal citations omitted.]  Applying that burden to appeals of enrollment revocations, CMS has the burden of coming forward with evidence that establishes a prima facie case that the cited basis for the revocation exists.  If CMS meets this burden, a petitioning provider then has the burden to prove its case, that is, to rebut the basis for the revocation, by a preponderance of the evidence.
*Adora Healthcare Services, Inc.*, DAB No. 2714 at 4-5 (2016), citing *Promptcare New England Respiratory, LLC*, DAB No. 2673 at 7-8 (2016); *Ronald J. Grason, M.D*., DAB No. 2592 at 5 (2014).  The DAB also explained that for CMS to establish its *prima facie* case, it “needed to point to evidence in the record developed before the ALJ showing” the basis for revocation.  *Adora*, DAB No. 2714 at 5.  Similarly, in a matter involving revocation pursuant to 42 C.F.R. § 424.535(a)(8)(i), the DAB explained, with respect to CMS’s burden, that CMS “need only provide evidence of three or more instances of [abusive] billing,” whereas “Petitioner must furnish evidence disputing CMS’s prima facie case of a pattern of abusive billing.”  *Med-Care Diabetic & Medical Supplies, Inc.*, DAB No. 2764 at 17 (2017).
Contrary to Petitioner’s vague and unsupported allegation that CMS has not established a *prima facie* case, CMS has undoubtedly satisfied this burden of proof.  Palmetto initially explained that Dr. Gibbs certified that he had not ordered home health services for numerous beneficiaries for whom Petitioner submitted claims, and it issued a list of representative claims and beneficiaries that include the seven beneficiaries that I have focused on for purposes of this decision.  CMS Ex. 1 at 1, 3.  To establish a *prima facie* case, as relevant here, CMS needed to establish that Petitioner had a pattern or practice of submitting claims for services that had not been certified by a physician; CMS met this burden by identifying a number of claims for services that Petitioner submitted for reimbursement for which the physician listed on the claims had certified that he had not
Page 20
ordered those services.  CMS Exs. 1 at 3; 5 at 1-2.  CMS presented further evidence that Dr. Gibbs had authorized Ms. Anyalebechi to sign all home health orders on his behalf.  CMS Ex. 9.
In order to rebut CMS’s *prima facie* case that revocation is warranted based on a pattern and practice of submitting claims for reimbursement that had not been certified or signed by a physician, Petitioner was required to rebut, by a preponderance of the evidence, the evidence showing that Dr. Gibbs did not authorize the home health services at issue (i.e., that he actually certified and signed the orders as required by 42 C.F.R. § 424.22(a)(2)).  Petitioner does not deny that it provided home health services to the beneficiaries on this list.  Further, despite the fact that CMS offered evidence that Dr. Gibbs attested that he did not order home health services for the listed beneficiaries (CMS Ex. 5 at 1-2), Petitioner has not asserted that Dr. Gibbs personally signed each of those orders himself, nor has it submitted evidence of such.  Rather, Petitioner acknowledges that Dr. Gibbs may not have signed those orders.  CMS Ex. 3 at 2-3 (Petitioner’s acknowledgment that Kindle Clinic “initiated” the “formal written orders” for cases involving Dr. Gibbs, and that “all orders [were] forwarded by both the Nurse Practitioner, Agnes Anyalebechi, DNP, ACNP, BC . . . and/or . . . Dr. Lynn Gibbs.”), 4 (stating that “[a] careful review of Dr. Gibbs and his relationship with Agnes Anyalebechi of Kindle Clinic will show that Kindle Clinic had an ongoing relationship with Dr. Gibbs during the entire period at issue and all related orders were signed and submitted by Dr. Gibbs and/or Agnes Anyalebechi for Kindle Clinic.”); P. Br. at 2 (“Each of the beneficiaries’ orders, certifications, and re‐certifications received by Blessed Home bared [sic] the signature of Dr. Gibbs and/or his Nurse Practitioner, Agnes Anyalebechi, whom Dr. Gibbs previously authorized to sign all Home Health orders on his behalf.”).  Even though Petitioner must submit evidence showing that Dr. Gibbs actually certified the need for home health services for these beneficiaries and signed the orders, Petitioner has submitted admissible evidence for only two of the seven beneficiaries I have focused on in this decision, and this evidence does not established that *Dr. Gibbs* signed the orders for home health services.  Despite having the opportunity to do so, Petitioner has not submitted documentary evidence or witness testimony demonstrating that Dr. Gibbs signed the orders.23
  Nor did Petitioner request the issuance of a subpoena to compel the production of any documents or testimony.  *See*42 C.F.R. § 498.58(c); Pre-Hearing Order § 9.
Page 21
Petitioner has not presented evidence that *Dr. Gibbs*personally signed the orders for home health services or the physician certifications for those services.  To the contrary, Petitioner argued that any orders and certifications signed by Ms. Anyalebechi are valid, even without a signature by Dr. Gibbs, stating:
Each of the beneficiaries’ orders, certifications, and re-certifications received by [Petitioner] bared [sic] the signature of Dr. Gibbs and/or his Nurse Practitioner, Agnes Anyalebechi, whom Dr. Gibbs previously authorized to sign all Home Health Orders on his behalf.
[Petitioner] thus, in full compliance with 42 C.F.R. § 424.22, reasonably relied on the orders, certifications, and re-certifications baring [sic] Dr. Gibbs’ and/or Agnes Anyalebechi’s signature from Kindle Clinic, Inc.  [Petitioner] properly believed that the prerequisite prior relationship between Dr. Gibbs and the beneficiaries had been established and the treatment was ordered by Dr. Gibbs prior to [Petitioner’s] treatment of each such beneficiary.
P. Br. at 2.  Petitioner added that “[a]s illustrated by Ms. Anyalebechi’s affidavit and Dr. Gibb’s [sic] personal statement of giving Kindle Clinic authority, it is clear” that Ms. Anyalebechi was working in collaboration with Dr. Gibbs under state law.24
  P. Br. at 8.  Petitioner has not come forward with any evidence, much less evidence meeting the standard of a preponderance of the evidence, that Dr. Gibbs signed the orders or certifications for the home health services.
CMS has submitted evidence that Petitioner submitted multiple claims for home health services involving seven beneficiaries for which Dr. Gibbs certified that he did not sign the orders for home health services.  CMS Ex. 5; *see*CMS Ex. 2 at 5.  CMS has also presented evidence that Dr. Gibbs had authorized Ms. Anyalebechi to sign orders on his behalf.  CMS Ex. 9 at 1.  Therefore, and contrary to Petitioner’s claims, CMS has established a *prima facie* case.  As such, Petitioner was required to show, by a
Page 22
preponderance of the evidence, that Dr. Gibbs authorized and signed the orders for home health services.  Petitioner submitted no such evidence.  To the contrary, Petitioner concedes that “Dr. Gibbs and/or Agnes Anyalebechi of Kindle Clinic” signed the physician orders.  CMS Ex. 3 at 4; *see*P. Br. at 2.
Petitioner argues that “the facts of this case are parallel to those” in *TEHC, LLC*, DAB No. CR4371 (2015) and *Proteam Healthcare, Inc.*, DAB No. 2658 (2015), which are cases in which an ALJ and the DAB, respectively, reversed a revocation.25
  P. Br. at 4.  Neither *TEHC*nor *Proteam*involved the regulation at issue in this case, 42 C.F.R. § 424.535(a)(8)(ii).  Rather, the revocations in both *TEHC*and *Proteam*were premised on 42 C.F.R. § 424.535(a)(1).  At the time of TEHC’s revocation in December 2014 and Proteam’s revocation in June 2013, the basis for revocation CMS applied in the present case did not yet exist; section 424.535(a)(8)(ii), which allows CMS to revoke enrollment based on a pattern or practice of submitting claims that do not meet Medicare requirements, did not become effective until February 3, 2015.  79 Fed. Reg. at 72,513 (adding paragraph (ii) to 42 C.F.R. § 424.535(a)(8)); *see TEHC*, DAB No. CR4371 at 1; *Proteam*, DAB No. 2658 at 2.  The addition of this new regulatory provision at 42 C.F.R. § 424.535(a)(8)(ii) is significant because, in both *TEHC*and *Proteam*, the revocations were reversed based on the inapplicability of 424.535(a)(1) as a basis for revocation to instances of inaccurate billing and noncompliance with Medicare requirements.  *TEHC,*DAB No. CR4371 at 11; *Proteam*, DAB No. 2658 at 7.  However, with the addition of section 424.535(a)(8)(ii) in February 2015, there is a clear regulatory basis for revocation that addresses circumstances in which a provider’s billing fails to comply with Medicare requirements (i.e., billing for services that were based on orders not signed by physicians).  *See Rural Metro Corporation of Florida, Inc.*, DAB No. 2977 at 8 (2019) (stating that “revocation under [section 424.535(a)(8)(ii) depends on showing a pattern or practice of claims that are not compliant with requirements”).
Petitioner also references *Access Foot Care, Inc., and Robert Metnick, D.P.M.*, DAB No. 2752 at 8 (2016), without any explanation of why it cited to that decision.  P. Motion at 8.  I note that *Access Foot Care*explains that neither 42 C.F.R. § 424.535(a)(8)**(i)** or language in that regulation’s rulemaking “establishes a strict liability standard for improper billing or creates an exception for accidental billing.”  *Access Foot Care*, DAB No. 2752 at 8.  However, I reiterate that the regulatory provision at issue here is 42 C.F.R. § 424.535(a)(8)**(ii)**, and section 424.535(a)(8)(ii) allows for revocation when a provider such as Petitioner engages in a pattern or practice of submitting claims that do not comply with Medicare requirements.  Petitioner also cites to *InFocus Health, LLC,*
Page 23
DAB No. CR5435 (2019), in support of its claim that “Dr. Gibbs is the subject of multiple Medicare revocation cases currently pending before this tribunal.”  P. Br. at 10.  I observe that both Dr. Gibbs and Ms. Anyalebechi are recurring figures in a line of home health agency cases involving revocation pursuant to 42 C.F.R. § 424.535(a)(8)(ii).  *See, e.g., InFocus Health, LLC,*DAB No. CR5435; *Skyview Home Health Agency,*DAB No. CR5607; *K&G Home Health Services,*DAB No. CR5596.  Dr. Gibbs, along with other physicians, improperly delegated to Ms. Anyalebechi the authority to sign physician names on orders.  Likewise, Ms. Anyalebechi signed orders for physicians when she clearly should not have done so.  *See InFocus Health*, DAB No. CR5435 at 3 (testimony by Ms. Anyalebechi in which she “admitted that she signed” certification forms on a physician’s behalf).  Regardless of whether there was any wrongdoing by Dr. Gibbs, Ms. Anyalebechi, and the other physicians who have been involved in a number of cases involving Kindle Clinic, home health agencies such as Petitioner cannot deflect fault for their own failures.  Petitioner was aware that Ms. Anyalebechi had been authorized by a physician to sign orders on his behalf, even though section 424.22(a)(2) unambiguously states that only a physician may sign orders certifying the need for home health services.  42 C.F.R. § 424.22(a)(2); 42 U.S.C. § 1395f(a)(2)(C).  Similar to what occurred in *InFocus,*Petitioner acknowledges that Dr. Gibbs *and/or*Ms. Anyalebechi signed the necessary physician orders.  Regardless of any fault by Dr. Gibbs or Ms. Anyalebechi, revocation is warranted based on *Petitioner’s* pattern and practice of submitting claims that did not meet Medicare requirements.  *See*CMS Ex. 2 at 5 (CMS’s statement that Petitioner “blindly relied on Kindle in ensuring that the orders and certifications it received were Medicare compliant,” even when it was on notice that it should have conducted “a deeper investigation [into] its own and Kindle’s Medicare compliance.”).
If Petitioner conducted the requisite amount of due diligence necessary to ensure that it submitted valid Medicare claims, it is simply implausible that it did not recognize that Ms. Anyalebechi, as a nurse practitioner, could not have properly been delegated the authority to sign orders certifying the need for home health services on behalf of a physician.  42 C.F.R. §§ 424.22(a)(2) (“The certification of need for home health services . . . must be signed and dated by the physician who establishes the plan.”), 489.21(b)(1) (making providers responsible for having in its files required physician certifications related to services furnished to Medicare beneficiaries).  The requirement for actual and non-delegable physician authorization is clearly stated in the regulation setting requirements for home health services, and it is simply inexcusable that Petitioner would be ignorant of such a critical requirement.  Therefore, with the knowledge that Ms. Anyalebechi was authorized to sign orders on behalf of Dr. Gibbs, Petitioner was on notice that orders certifying the need for home health services may lack the necessary physician signature and that it should verify that a physician had actually signed those orders and certifications.
The evidence must merely establish that Petitioner had a pattern or practice of submitting claims that fail to meet Medicare requirements.  42 C.F.R. § 424.535(a)(8)(ii); 79 Fed.
Page 24
Reg. at 72,515 (“The term ‘abusive,’ as used in the context of § 424.535(a)(8)(ii), is meant to capture a variety of situations in which a provider or supplier regularly and repeatedly submits non-compliant claims over a period of time.”).  Further, the plain language of 42 C.F.R. § 424.535(a)(8)(ii) contains no reference to the culpability of the supplier or any requirement of fraudulent intent.  Likewise, there is no knowledge requirement.  79 Fed. Reg. at 72,516, 72,520.  As the preamble to the final rule stated:  “We explained that a provider or supplier should be responsible for submitting valid claims at all times and that the provider or supplier’s repeated failure to do so poses a risk to the Medicare Trust Funds.”  79 Fed. Reg. at 72,513.
The evidence establishes that over an approximately 11-month period, Petitioner submitted multiple claims involving seven beneficiaries for whom home health services were not certified by a physician.   42 C.F.R. § 424.535(a)(8)(ii)(A),(B), (D).26
  Petitioner claims that it has been enrolled in Medicare since 2008, and with that amount of experience with the Medicare program, it is implausible that Petitioner was uninformed about Medicare requirements such that it did not recognize that physician orders certifying the need for home health services mustbe signed by a physician.  42 C.F.R. § 424.535(a)(8)(ii)(E).  Petitioner acknowledges that physician orders were signed by Dr. Gibbs and/or Ms. Anyalebechi (CMS Ex. 3 at 4; P. Br. at 2), and even with this knowledge, Petitioner did not attempt to determine whether Ms. Anyalebechi had signed the orders certifying the need for home health services.  CMS Ex. 3 at 4; *see*42 C.F.R. § 424.22(a)(2).  I need only determine whether Petitioner had a “pattern or practice of submitting claims that fail to meet Medicare requirements.”  Petitioner submitted multiple claims for at least seven beneficiaries that it should have known were based on orders and certifications that may not have been signed by a physician, and it failed to undertake any effort to determine whether Dr. Gibbs, rather than Ms. Anyalebechi, had actually signed the orders and certifications.  Pursuant to section 424.535(a)(8)(ii), Petitioner had a pattern or practice of submitting claims that failed to meet Medicare requirements.
Petitioner has not addressed the effective date of the revocation or the duration of the reenrollment bar.  Therefore, I need not address these issues.  *See*42 C.F.R.  §§ 424.535(c), 498.3(b)(17).
To the extent that Petitioner may be requesting equitable relief, I am unable to grant equitable relief.  *See US Ultrasound*, DAB No. 2302 at 8 (2010) (stating that an ALJ may not grant equitable relief in an instance where statutory or regulatory requirements are not met).  Petitioner points to no authority by which I may grant it relief from the applicable regulatory requirements.  *1866ICPayday.com, L.L.C.*, DAB No. 2289 at 14 (2009) (“An
Page 25
ALJ is bound by applicable laws and regulations and may not invalidate either a law or regulation on any ground . . . .”).
V.  Conclusion
I affirm the determinations revoking Petitioner’s Medicare enrollment and billing privileges.


          /s/
        Leslie C. Rogall

                      Administrative Law Judge
      1. Curiously, Dr. Gibbs did not specify a termination date for this delegation of signature authority to Ms. Anyalebechi.  Although Petitioner argues that Ms. Anyalebechi worked in collaboration with Dr. Gibbs, it did not submit a copy of a collaborative practice agreement.  See, e.g., 42 C.F.R. § 410.75(c).  Another recent administrative law judge (ALJ) decision references a collaborative practice agreement between Ms. Anyalebechi and Dr. Gibbs, in which Ms. Anyalebechi agreed to compensate Dr. Gibbs at a rate of $1,000 per month for period of twelve months that concluded in January 2017.  Skyview Home Health Agency, Inc., DAB No. CR5607 at 5 (2020).  Likewise, I recently addressed another collaborative practice agreement that Ms. Anyalebechi entered into with a different physician, Dr. Grace Varas, wherein Ms. Anyalebechi agreed to compensate Dr. Varas at the same $1,000 monthly rate, effective September 2017.  K&G Home Health Services, DAB CR5596 at 2 (2020).  Dr. Varas, like Dr. Gibbs, had authorized Ms. Anyalebechi “to sig[n] all [her] [h]ome health care orders on [her] behalf as her [s]upervising physician.”  Id. back to note 1
                      2. All beneficiary names are redacted to protect the privacy of those individuals. back to note 2
                      3. Even though the initial determination clearly explained that the revocation of Petitioner’s enrollment and billing privileges was based upon abusive billing related to beneficiaries for whom Dr. Gibbs purportedly certified the need for home health services (CMS Ex. 1 at 1), Petitioner’s request for reconsideration contains a substantial amount of discussion regarding irrelevant matters such as claims Petitioner submitted for a number of beneficiaries for whom Dr. Gibbs was not the ordering physician.  CMS Ex. 3 at 2-3.  Petitioner also inexplicably referenced “written and direct testimony” (which is not part of the reconsideration process), argued about claims with dates of service that were well outside range of dates cited in the initial determination, and disputed an “inaccurate finding” regarding a $319,706.62 overpayment, despite the fact that there was no such finding in the initial determination.  CMS Ex. 3 at 1-5.  Petitioner also requested “a hearing with the appropriate ALJ office to reconsider its termination and reconsideration of each prior stated findings,” even though the submission of a request for hearing prior to the issuance of a reconsidered determination was premature and contrary to regulatory requirements.  CMS Ex. 3 at 5; see 42 C.F.R. § 498.5(l)(2). back to note 3
                      4. This submission has the file name, “392045_Additional_Evidence” and contains records for C.J., C.L., H.S., J.P., M.D., P.J., S.G., and S.L.  See Departmental Appeals Board Electronic Filing System (DAB E-File) Case Record, Docket Entry 1d. back to note 4
                      5. Because Petitioner filed what appeared to be its complete pre-hearing exchange nearly a month before filing its motion for summary judgment and pre-hearing brief, CMS had previously filed its objections before Petitioner later submitted its motion for summary judgment and pre‐hearing brief.  CMS thereafter renewed its objections.  My references herein are to CMS’s latter filing, dated November 4, 2019. back to note 5
                      6. Specifically, section 498.56(e)(1) states that the ALJ “will examine any new documentary evidence submitted to the ALJ by a provider or supplier . . . .” back to note 6
                      7. Petitioner argues that “CMS Ex. 11 does not provide any additional insight on whether Petitioner was in substantial compliance with Medicare regulations . . . .”  P. Objections.  I agree. back to note 7
                      8. Petitioner submitted eight pages of records for S.L. with its request for reconsideration (CMS Ex. 4 at 28-35), whereas it submitted 13 pages of records for S.L. with its request for hearing. back to note 8
                      9. Although Petitioner had previously submitted documents pertaining to J.H., the documents pertaining to J.H. in P. Ex. 2 are not duplicative of the records contained in CMS Ex. 4.  Compare CMS Ex. 4 at 21-27 with P. Ex. 2 at 1-5. back to note 9
                      10. I reiterate that Petitioner, in its request for reconsideration, disputed matters that were irrelevant to the revocation of its enrollment and billing privileges, such as a $319,706.62 overpayment that had not been cited in the initial determination.  CMS Ex. 3 at 5. back to note 10
                      11. S.G. and P.J. are not listed in Enclosure A to the initial determination.  CMS Ex. 1 at 3.  I have determined that revocation is warranted without consideration of the claims involving S.G. and P.J. back to note 11
                      12. Petitioner did not submit any records for J.H. with its request for hearing.  However, it previously submitted records for J.H. with its request for reconsideration.  CMS Ex. 4 at 21-27. back to note 12
                      13. In fact, the website indicates that it is a family-owned “e-store” that generates its revenue through advertising and online store sales.  https://www.carepathways.com/aboutus.cfm#money (last visited May 14, 2020). back to note 13
                      14. Findings of fact and conclusions of law are in italics and bold font. back to note 14
                      15. I refer to these provisions as they were previously in effect.  Section 3708 of the Coronavirus Aid, Relief, and Economic Security (CARES) Act, P.L. 116-136, enacted March 27, 2020, authorizes, inter alia, nurse practitioners to certify the need for home health services for Medicare beneficiaries.  CMS issued an interim final rule implementing these statutory revisions.  85 Fed. Reg. 27,550, 27,625 (May 8, 2020). back to note 15
                      16. Section 424.535(a)(8)(ii) is a relatively new basis for the revocation of enrollment and billing privileges that became effective in February 2015.  During the rulemaking process to add section 424.535(a)(8)(ii), CMS stated:  “We explained that a provider or supplier should be responsible for submitting valid claims at all times and that the provider or supplier’s repeated failure to do so poses a risk to the Medicare Trust Funds.”  79 Fed. Reg. 72,500, 72,513 (Dec. 5, 2014).  CMS further explained that its intention was not to revoke billing privileges based on a “misunderstanding of these policies,” but cautioned that “Medicare billing privileges come with a responsibility for the provider to diligently seek and obtain clarification of Medicare policies should there be a misunderstanding or confusion.”  79 Fed. Reg. at 72,514.  CMS also discussed that “[t]he term ‘abusive,’ as used in the context of § 424.535(a)(8)(ii), is meant to capture a variety of situations in which a provider or supplier regularly and repeatedly submits non-compliant claims over a period of time.”  79 Fed. Reg. at 72,515. back to note 16
                      17. The regulation was amended after Petitioner filed its request for hearing.  See 84 Fed. Reg. 47,794, 47,854-56 (Sept. 10, 2019). back to note 17
                      18. CMS, citing to the version of “42 C.F.R. § 424.22” (without listing a pinpoint subsection) that was purportedly in effect between January 1, 2016, and December 31, 2018, argues that the certifying physician “must certify that the home health services will be or were furnished while the individual is under his/her care.”  CMS Br. at 6 n.2 (emphasis added).  However, I was unable to locate such a provision in hard copy editions of the U.S. Government Publishing Office publication of the Code of Federal Regulations from the timeframe identified by CMS.  Rather, section 424.22(a)(1)(iv) has consistently referenced that a physician must certify that home health services are furnished while the beneficiary was under the care of a physician.  Although the Medicare Benefit Policy Manual (Ch. 7, § 30.3 (eff. Jan. 1, 2015)) similarly states that “[a] patient is expected to be under the care of the physician who signs the plan of care,” this manual provision relies exclusively on 42 C.F.R. § 424.22.  Regardless, it is unnecessary to address whether the home health services were provided while the beneficiaries were under the care of Dr. Gibbs, nor is it necessary to address whether Dr. Gibbs had a prior relationship with those beneficiaries. back to note 18
                      19. “Physician certification/recertification claims are Part B physician claims paid for under the Physician Fee Schedule.”  Medicare Benefit Policy Manual, Ch. 7, § 30.5.4 (eff. Jan. 1, 2015). back to note 19
                      20. Under Texas law, a physician “may delegate to a qualified and properly trained” nurse practitioner certain acts such as prescribing and ordering drugs and devices.  Tex. Occ. Code Ann.  §§ 157.001(a), 157.051.  In order to delegate such authority, a physician and nurse practitioner must enter into a prescriptive authority agreement.  Tex. Occ. Code Ann.  § 157.0512. back to note 20
                      21. I focus on these seven beneficiaries and the corresponding claims that were submitted between January 18 and December 4, 2017.  Palmetto specifically identified these claims in the initial determination, and Petitioner had an opportunity to submit evidence demonstrating that Dr. Gibbs had certified and ordered home health services for these beneficiaries.  CMS Exs. 1 at 1; 3; see CMS Ex. 2 at 4.  As previously discussed at length, despite being given an opportunity to do so, Petitioner addressed only two of the ten claims (i.e., J.H. and S.L.) in its request for reconsideration and failed to produce evidence showing that Dr. Gibbs signed any of the physician orders.  CMS Ex. 4 at 21‐35; see CMS Ex. 3 at 3. back to note 21
                      22. While I refuse to accept CMS’s invitation to assess whether various signatures purported to be those of Dr. Gibbs “match” (CMS Br. at 8-9), I recognize the obvious fact that Kindle Clinic’s “Home Health Care Services Physician Order” that lists Dr. Gibbs as the ordering physician is actually a pre-printed form that includes a pre-printed physician signature.  Compare CMS Ex. 4 at 21 (physician order for J.H.) with CMS Ex. 4 at 28 (physician order for S.L.).  By virtue of the fact that the signature and other handwritten information is pre-printed on each of these Kindle Clinic physician orders, Petitioner’s submission of these purported orders weighs against a finding that Dr. Gibbs signed each certification, as required by 42 C.F.R. § 424.22(a)(2).  The pre-printed nature of the Kindle Clinic orders is readily apparent to any lay observer through a comparison of the identical markings and lines on both forms (that were presumably created though the photocopying process), along with identical handwritten notations and the pre‐printed signatures.  My observation can be easily replicated by printing out both forms, lining them up (one on top of the other), stapling them together, and then holding them against a light source; one can see that there is no deviation between both forms with respect to several markings and handwritten notations.  CMS Ex. 4 at 21, 28.  Further, the signatures on the line adjacent to “Physician’s Signature” line up precisely, as if one signature had had been traced directly over the other, with absolutely no deviation, to include the placement of the signature with respect to the signature line.  CMS Ex. 4 at 21, 28.  While I am not competent to conduct the analysis necessary to establish who signed the order on Kindle Clinic’s pre-printed physician order for Dr. Gibbs, I can easily determine that these orders are on pre-printed forms based on this precision in the overlap of markings, print, and signatures on those forms.  CMS Ex. 4 at 21, 28.  Although I need not reach the question of who signed the pre-printed signature on these orders, I nonetheless caution CMS that handwriting analysis is best left to someone with the appropriate expertise.  See CMS Br. at 8-9 (incorporating images of various purported signatures for Dr. Gibbs, and arguing, in support of summary judgment, that the signatures “clearly do not match”). back to note 22
                      23. For instance, Petitioner could have submitted documentation establishing that Dr. Gibbs actually signed the orders, or it could have submitted the testimony of an expert witness who is qualified to analyze handwritten signatures.  Petitioner also could have submitted the written testimony of one of its managers or employees explaining any processes utilized to verify that Dr. Gibbs had signed all physician orders, or it could have asked Dr. Gibbs to provide testimony that he did, in fact, authorize home health service for the beneficiaries at issue and has signed the physician orders and certifications. back to note 23
                      24. Although Petitioner argues that Ms. Anyalebechi and Dr. Gibbs had a collaborative practice agreement, it has not provided evidentiary support for this assertion.  I note that Dr. Gibbs improperly authorized Ms. Anyalebechi to sign orders on his behalf in a letter dated February 1, 2016; this letter does not specify a termination date and the record does not indicate the duration of any collaborative practice agreement(s).  Therefore, the record does not establish that Dr. Gibbs and Ms. Anyalebechi remained in a collaborative practice agreement during the relevant time period, between January and December 2017.  In fact, another ALJ decision reports that Ms. Anyalebechi entered into a collaborative practice agreement with a different physician, Dr. Varas, in September 2017, which overlaps the time period at issue in this case.  K&G Quality Healthcare Service, DAB No. CR5596 at 2. back to note 24
                      25. The ALJ decision in TEHC extensively cited to the DAB’s decision in Proteam.   TEHC, DAB No. CR4371 at 11-13.  Further, the TEHC decision is an ALJ decision, and I am not bound by the decisions or rulings of other ALJs.  See, e.g., Vamet Consulting & Medical Servs.,DAB No. 2778 at (2017) (discussing that an ALJ decision is “not binding precedent on another ALJ or on the [DAB]”). back to note 25
                      26. Petitioner, without any elaboration or supporting evidence, contends that “the percentage of submitted claims denied by Medicare is miniscule.”  P. Br. at 10; see 42 C.F.R. § 424.535(a)(8)(ii)(A).  I lack a meaningful basis to address this allegation. back to note 26 Back to top
    Contact HHS
    
                        
                                            
      
      
      Careers
    
                        
                                            
      
      
      HHS FAQs
    
                        
                                            
      
      
      Nondiscrimination NoticeHHS Archive
    
                        
                                            
      
      
      Accessibility Statement
    
                        
                                            
      
      
      Privacy Policy
    
                        
                                            
      
      
      Viewers & PlayersBudget/Performance
    
                        
                                            
      
      
      Inspector General
    
                        
                                            
      
      
      Web Site Disclaimers
    
                        
                                            
      
      
      EEO/No Fear ActFOIA
    
                        
                                            
      
      
      The White House
    
                        
                                            
      
      
      USA.gov
    
                        
                                            
      
      
      Vulnerability Disclosure Policy
        Sign Up for Email Updates

Receive the latest updates from the Secretary, Blogs, and News Releases.

Sign Up
  HHS Headquarters
          200 Independence Avenue, S.W.
                  Washington, D.C. 20201
                  Toll Free Call Center: 1-877-696-6775​ Disclaimer Policy: Links with this icon () mean that you are leaving the HHS website. The Department of Health and Human Services (HHS) cannot guarantee the accuracy of a non-federal website.
                  Linking to a non-federal website does not mean that HHS or its employees endorse the sponsors, information, or products presented on the website. HHS links outside of itself to provide you with further information.
                  You will be bound by the destination website's privacy policy and/or terms of service when you follow the link.
                  HHS is not responsible for Section 508 compliance (accessibility) on private websites. For more information on HHS's web notification policies, see Website Disclaimers.
 Continue
                  Go back