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                              Medical Social Services of South East Texas, Inc., DAB CR5808 (2021)
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Medical Social Services of South East Texas, Inc., DAB CR5808 (2021)








  
  
    

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





Medical Social Services of South East Texas, Inc.
(NPI: 1639228984),
Petitioner,

v.

Centers for Medicare & Medicaid Services, Respondent.
Docket No. C-18-859Decision No. CR5808February 10, 2021

        
              
    

      DECISION

Petitioner, Medical Social Services of South East Texas, Inc., is a supplier of durable medical equipment, prosthetics, orthotics, and supplies (DMEPOS) that at times relevant here participated in the Medicare program.  Respondent, the Centers for Medicare & Medicaid Services (CMS), revoked Petitioner's Medicare enrollment and billing privileges after it determined Petitioner was not in compliance with Medicare enrollment requirements, was not operational to furnish Medicare-covered items or services, and failed to maintain a physical facility on an appropriate site that was accessible and staffed during posted hours of business.  42 C.F.R. §§ 424.535(a)(1), 424.535(a)(5), 424.57(c)(7).

For the reasons explained herein, I affirm the revocation of Petitioner's Medicare enrollment and billing privileges effective May 22, 2017, the date CMS determined Petitioner's practice location was not operational.

**Page 2**

I.  Background and Procedural History

In a notice dated July 11, 2017, CMS administrative contractor National Supplier Clearinghouse (NSC) revoked Petitioner's Medicare supplier number pursuant to 42 C.F.R. §§ 405.800, 424.57(e), 424.535(a)(1), 424.535(a)(5), and 424.535(g).  CMS Ex. 5 at 1-2.  NSC explained that an inspector attempted to visit Petitioner's facility during its posted hours of operation on April 25, 2017, April 27, 2017, and May 22, 2017, in order to verify its compliance with applicable participation requirements.  But on each occasion, the business was closed and the contractor's representative could not conduct an inspection.  *Id.*

NSC therefore advised Petitioner its enrollment and billing privileges were revoked as of May 22, 2017, the date that CMS determined that Petitioner's practice location was not operational.  NSC barred Petitioner from re-enrolling for a period of two years pursuant to 42 C.F.R. § 424.535(c).  CMS Ex. 5.  Petitioner sought reconsideration, and on February 27, 2018, NSC confirmed it believed revocation to be appropriate because Petitioner's facility was not operational, and therefore not in compliance with supplier standards.  CMS Ex. 1.

Petitioner timely filed a request for hearing before an administrative law judge (ALJ) in the Civil Remedies Division, and I was designated to hear and decide this case.  On May 3, 2018, I issued an Acknowledgment and Pre-Hearing Order (Pre-Hearing Order) that set forth a schedule for the filings of briefs and proposed exhibits.  CMS filed a motion for summary judgment which Petitioner opposed.  On August 20, 2018, I denied CMS's motion, finding Petitioner furnished evidence of a dispute concerning a material fact, and set this matter for hearing.  Order Denying Motion for Summary Judgment & Scheduling Hearing.

Petitioner asked to cross-examine the NSC inspector who conducted the three attempted site visits on which NSC premised its revocation action.  P. Witness List at 2.  However, CMS did not submit written direct testimony for that individual, so Petitioner had no right as a matter of course to cross-examine him.1
  *See*Order Denying Motion for Summary Judgment & Scheduling Hearing at 2; Order Granting Waiver of Hearing & Setting Briefing Schedule at 2; Pre-Hearing Order at 5-6; Civ. Remedies Div. P. § 19(b), (d).  Meanwhile, CMS asked to cross-examine both of Petitioner's witnesses, and I set this matter for hearing.  CMS subsequently withdrew that request and asked for a final briefing schedule and decision on the record.  CMS Motion to Waive a Hearing at 1-2.  I granted that request and permitted the parties to file initial and reply briefs.  Both parties filed initial briefs (CMS Br. and P. Br.), while only Petitioner filed a reply brief (P. Reply).

**Page 3**

II.  Admission of Exhibits

CMS filed seven proposed exhibits (CMS Exs. 1-7), but no written direct testimony for any proposed witness.  Petitioner filed eight proposed exhibits (P. Exs. 1-8), including the written direct testimony of two proposed witnesses (P. Exs. 6-8).  Neither party objected to the opposing party's proposed exhibits.

Petitioner submitted P. Exhibits 2 through 5 for the first time before me.  The regulations require I find good cause to receive into evidence any documentary evidence that Petitioner did not offer at the reconsidered level of determination.  42 C.F.R. § 498.56(e).  I find good cause to do so here.  Petitioner's exhibits contain photographs of its facility and of a neighboring business.  P. Exs. 2-5.  Petitioner asserts the photographs proffered by CMS (CMS Ex. 3 at 8-9; CMS Ex. 4 at 8-9) are copies of those taken by NSC inspectors for site visit reports and "are poor quality and lack color such that it is not possible to determine whether the lights are on or off."  P. Ex. List at 1-2.  Petitioner contends the photographs it submitted before me better show the mirrored exterior and layout of its facility.  Petitioner also submitted a photograph of a neighboring business to purportedly rebut assertions made by NSC inspectors in the May 22, 2017 site visit report which were relied upon in NSC's reconsidered determination.  *Id*.

To provide foundation, Petitioner submitted a declaration from its branch manager, Kalan Gardner, who attested he took the photographs submitted as P. Exs. 2 through 5.  P. Ex. 7 at 1-2.  Mr. Gardner does not specify when he took the photographs, but it is logical to presume they were taken following the submission of CMS's exchange and were not in existence at the time of the NSC's reconsidered determination.  The evidence proffered by Petitioner is therefore both relevant and new.  CMS states no objection to this evidence.  I therefore find good cause to receive these documents into evidence and admit CMS Exhibits 1 through 7 and Petitioner Exhibits 1 through 8 into evidence.

III.  A Decision on the Record is Appropriate

As neither party sought to cross-examine any witness for whom the opposing party submitted written direct testimony, I determined a hearing is not necessary and established a final briefing schedule, permitting initial and reply briefs.  Order Granting Waiver of Hearing & Setting Briefing Schedule at 1-2; *see* Civ. Remedies Div. P. § 19(b); *Igor Mitreski, M.D.*, DAB No. 2665 at 7 (2015).  The parties filed initial briefs (CMS Br.; P. Br.) and Petitioner filed a reply brief (P. Reply).  Because the parties have waived cross-examination, I issue this decision based on the written record.

**Page 4**

IV.  Issue

Whether CMS had a legal basis to revoke Petitioner's Medicare enrollment and billing privileges under 42 C.F.R. §§ 424.535(a) or 424.57(c)(7).

V.  Jurisdiction

I have jurisdiction to decide this case.  42 C.F.R. §§ 493.3(b)(17), 498.5(*l*)(2).

VI.  Applicable Law

The Secretary of Health and Human Services (Secretary) has the authority to establish by regulation enrollment standards for providers and suppliers, including DMEPOS suppliers.  42 U.S.C. §§ 1395m(j)(1)(B)(ii), 1395cc(j).  The Secretary's regulations require providers and suppliers to be operational.  42 C.F.R. § 424.535(a)(5).  To be "operational," a provider or supplier must be "open to the public for the purpose of providing health care related services . . . ."  42 C.F.R. § 424.502.  The Secretary promulgated additional regulations establishing supplier standards, which a DMEPOS supplier must also maintain.  42 C.F.R. § 424.57(c).  Those standards require a DMEPOS supplier to be "accessible and staffed during posted hours of operation."  42 C.F.R. § 424.57(c)(7)(i)(C).

CMS or its contractors may conduct inspections of a supplier's premises at any time to determine if a supplier is in compliance with Medicare enrollment requirements or supplier standards.  42 C.F.R. §§ 424.57(c)(8), 424.510(d)(8), 424.515(c), 424.517(a).  A supplier is subject to revocation of its Medicare billing privileges if it violates the DMEPOS supplier standards, 42 C.F.R. § 424.57(e), or the regulatory requirements applicable to all suppliers, 42 C.F.R. § 424.535(a).  Revocation for noncompliance with 42 C.F.R. § 424.57(c) is effective 30 days after the supplier is sent notice of the revocation.  42 C.F.R. § 424.57(e).  Revocation for failure to comply with 42 C.F.R. § 424.535(a)(5) is effective the date CMS determines the supplier was no longer operational.  42 C.F.R. § 424.535(g).

VII.  Discussion2

CMS asserts it had a valid basis to revoke Petitioner's enrollment and billing privileges on three grounds.  CMS Br. at 8-10.  CMS contends that by failing to be accessible and staffed during posted hours of operation, Petitioner did not comply with obligations imposed on DMEPOS suppliers by 42 C.F.R. § 424.57(c)(7)(i)(C).  *Id.*  CMS argues this failure to be "operational" also permitted revocation pursuant to 42 C.F.R. § 424.535(a)(5)(ii).  *Id.*  CMS claims revocation was otherwise appropriate based on

**Page 5**

Petitioner's general non-compliance with enrollment requirements set forth at 42 C.F.R. § 424.535(a)(1).  *Id.*

As explained herein, I find CMS was authorized to revoke Petitioner's enrollment for violation of 42 C.F.R. §§ 424.57(c)(7) and 424.535(a)(5).  I therefore decline to discuss whether CMS also had grounds for revocation pursuant to 42 C.F.R. § 424.535(a)(1).

***A.  On April 25, 2017, April 27, 2017, and May 22, 2017, a site inspector was unable to gain entry to Petitioner's facility during posted hours of operation because the exterior door was locked and no one answered when the inspector knocked.***

CMS asserts it had a legal basis to revoke Petitioner's enrollment and billing privileges because on three occasions, NSC inspector Sherry Brasher sought to inspect Petitioner's facility but in each case was unable to gain entry because the door was locked and no one answered when the inspector knocked.  CMS Br. at 9-10.

Petitioner disputes the allegations made by Inspector Brasher, contending its exterior door was unlocked and that the inspector could have gained access by simply opening it.  P. Br. at 9.  As such, Petitioner argues CMS had no basis to revoke its enrollment because its facility was staffed, open, and accessible during each of the attempted site inspections.  *Id.*

Because I must resolve the factual dispute between the parties by assessing the credibility of their witnesses based on sworn statements, I summarize those statements and relevant evidence proffered by the parties here.

**1. Inspector Brasher**

CMS relies upon the site visit reports submitted by the site inspector, Sherry Brasher.  CMS Ex. 3.  Inspector Brasher submitted a site investigation report on April 28, 2017 that memorialized two attempts she made to inspect Petitioner's facility on April 25 and April 27, 2017.  *Id.* at 1, 7.  Inspector Brasher declared under penalty of perjury that her report was true and correct.  *Id.*at 6.  With respect to her first visit on April 25, 2017 at 11:40 a.m., Inspector Brasher reported that when she attempted to conduct an on-site inspection of Petitioner's facility, she "knocked and no one answered" and observed the "door was locked and [the] ligh[ts] appear[ed] to be off."  *Id.* at 7.  Inspector Brasher stated she went to a "business next door[,] but no one spoke [E]nglish."  *Id*.

Inspector Brasher's report documented a second attempt to conduct a site visit on April 27, 2017 at 1:35 p.m.  The inspector found the "[d]oor was locked again," and reported that she "knocked [with] no answer."  *Id.*  This time, Inspector Brasher was able to interrogate an unidentified source located at a "business on the other side" who "did not

**Page 6**

know of the supplier and did not notice when the last time they saw anyone at the location."  *Id*.

CMS proffered another site visit report submitted by Inspector Brasher that memorialized her third attempt to conduct a site inspection at Petitioner's facility on May 22, 2017 at 2:20 p.m.  CMS Ex. 4.  The inspector again reported that the "door was locked" and that she "knocked," but that there was "no answer."  *Id.*at 7.  She observed the lights were off.  *Id.*Inspector Brasher took note of Petitioner's lunch hours (12:00 to 1:00) and stated that the facility was not open during business hours.  She reported she "went next door to a thrift shop," but that "they [did] not know any details about the supplier."  *Id*.  Inspector Brasher again submitted her report under penalty of perjury.  *Id.* at 6.

The inspector's reports are accompanied by photographic evidence.  While black and white and of poor quality, they show the facility's exterior front door and the outside of the building.  The photos also verify the dates and times of each inspection attempt.  CMS Ex. 3 at 8 (April 27, 2017, time stamp 13:34 – 13:35), 9 (April 25, 2017, time stamp 11:39 – 11:40); CMS Ex. 4 at 8-9 (May 22, 2017, time stamp 14:24 – 14:27).  I find this evidence sufficient to establish the times and dates of Inspector Brasher's site visits.

**2. Kalan Gardner and K. Cody Patel**

Petitioner disputes Inspector Brasher's report, asserting that branch manager Kalan Gardner was in fact present at the facility which was open for business, staffed, and accessible to the public during its posted hours of operation on April 25, 2017, April 27, 2017, and May 22, 2017.  P. Br. at 3-6, 11.  To rebut CMS's case, Petitioner relies upon sworn affidavits from Mr. Gardner and K. Cody Patel, the Chief Executive Officer (CEO) of Petitioner's parent company.  P. Exs. 6-8.

Both Mr. Gardner and Mr. Patel describe Petitioner's facility to have a mirrored-like glass exterior with a front or exterior door leading to a showroom.  P. Ex. 7 at 1; P. Ex. 8 at 2.  Both men explain that the reflective tinting on the exterior windows make it "virtually impossible" to see if the lights are on or off inside the business.  *Id.*  And, both men describe a second interior door inside that separates the showroom from the back office and warehouse.  *Id.*

Mr. Gardner declared that on the date of each attempted inspection, "I was in our office from 7:45 A[M] to 5 PM."  P. Ex. 6 at 1-2.  He stated that he did not leave the premises for lunch and that the door "always" stays unlocked during business hours.  *Id.*Mr. Gardner clarified that it was customary to keep the front exterior door unlocked during business hours, and that employees would lock the interior door when they went into the back office or the warehouse at the rear of the facility.  P. Ex. 7 at 1-2.

**Page 7**

Mr. Gardner stated he was familiar with Dennis Gibson, the owner of the business next door, New Life Antique & Thrift, because Mr. Gibson had coached his son's football team, and that they had spoken on many occasions.  *Id.* at 2.  Mr. Gardner also stated he was familiar with the employees of King's Pharmacy because he was "frequently in their facility."  *Id.*

Mr. Patel declared he was the CEO of Vitalus Airway, which owned and operated Petitioner, and was familiar with Petitioner's policies and procedures.  P. Ex. 8 at 2.  He confirmed it was Petitioner's "practice to keep the front door unlocked during our posted hours of operation."  *Id.*  Mr. Patel explained that he erroneously informed NSC that Mr. Gardner had been making a delivery in one instance when the inspector attempted to visit the facility, but that he had since confirmed no deliveries were made on any of the three dates Inspector Brasher reported visiting Petitioner's facility.  *Id.*at 1.

**3.  Photographs**

The photographic evidence of record from both parties confirms the assertions by Mr. Gardner and Mr. Patel that the exterior door's reflective tinting made it difficult but not impossible to see inside the facility.  CMS Ex. 3 at 8-9; CMS Ex. 4 at 8-9; P. Exs. 2-4.  CMS's photographs show a piece of paper affixed to the exterior door bearing Petitioner's hours of operation, the message "Closed Daily for Lunch from 12PM-1PM," and an emergency phone number.3
  CMS Ex. 3 at 8-9; CMS Ex. 4 at 8-9.  The paper sign on the exterior door specified Petitioner's hours of operation were Monday through Friday from 8:00 a.m. until 5:00 p.m.  CMS Ex. 3 at 3, 8-9; CMS Ex. 4 at 3, 8.  CMS's photographs show no evidence of a doorbell on the exterior door.  CMS Ex. 3 at 8; CMS Ex. 4 at 8.

Meanwhile, Petitioner submitted photographs of the interior door, which bore a sign reading, "To protect the privacy of our patients EMPLOYEES ONLY BEYOND THIS POINT."  P. Ex. 2 at 4-5.  Petitioner's photographs confirm a manual-style bell was situated next to the interior door.  P. Ex. 2 at 4-5.

Petitioner also submitted photographs of the exterior door of the neighboring business, New Life Antique & Thrift Shop, to verify its hours of operation, which were Tuesday through Thursday from 10:00 a.m. to 5:00 p.m., with lunch hours from 12:00 p.m. to 2:00 p.m.  P. Ex. 5 at 1-2.

**Page 8**

**4.  Analysis**

Both parties have provided statements under penalty of perjury I must consider.  Having done so in the light of the record, I do not find the testimony of Petitioner's witnesses sufficient to undermine the substance of Inspector Brasher's site visit reports.

Mr. Karan's sworn statements fail to undermine Inspector Brasher's reported statements or establish by a preponderance of the evidence that her report was factually erroneous.  Critically, Mr. Karan declares that for each of the three inspections,

The door as always was unlocked during these business hours, furthermore the lights of our office were on and the doorbell which is operational was available and working, next to a sign that stated in big large letters, "Please ring doorbell in the case the door maybe locked" furthermore there is a big official sign that indicates that "if no-one is available or in case of an emergency please contact 409-962-1942 or the on call # 409-293-5020, someone will be available to help you with your needs immediately."  This was posted on the front door in a very visible area.

P. Ex. 6 at 1-2.  Mr. Karan appears to describe the exterior door, which Inspector Brasher asserted to be locked.  But I find no basis to conclude Mr. Karan was correct in his claim that this door was always unlocked, chiefly because the other assertions in his declaration appear inaccurate.  First, Mr. Karan's testimony is plainly inconsistent with itself:  while he claims "[t]he door as always was unlocked during business hours," he also describes a "big official sign" that provides clients with two telephone numbers to call in case the door was locked.  His testimony that the door was always unlocked cannot be true if it was necessary to post a sign with instructions to follow in case it was locked.

Other inaccuracies cast doubt on the veracity of Mr. Karan's statement.  Mr. Karan described a "big" and "official" sign on the exterior door, while the evidence before me shows the actual sign was a letter-sized piece of paper.  CMS Ex. 3 at 8; CMS Ex. 4 at 8.  That sign provided only one phone number and none of the instructions described by Mr. Karan.  *Id.*There is also no visible evidence of a doorbell, nor the instruction Mr. Karan describes to "Please ring the doorbell in the case the door maybe locked."  CMS Ex. 3 at 8; CMS Ex. 4 at 8; P. Ex. 6 at 1-2.

It is possible Mr. Karan meant to refer to such a sign posted near the interior door, since he concedes that door, unlike the exterior door, was sometimes locked.  P. Ex. 6 at 1-2.  But the photographs submitted by Petitioner fail to show evidence of a sign on the interior door notifying customers of numbers to call if the door was locked.  P. Ex. 2 at 4-5.  Nor do they show evidence of a doorbell, though Mr. Karan may have been referring

**Page 9**

to the old-style manual bell, which would be of no use to a client unable to gain access through a locked exterior door.  In sum, the inconsistencies and inaccuracies contained in Mr. Karan's testimony make it difficult to reach the conclusion Petitioner wishes me to reach – that Inspector Brasher either erroneously or maliciously claimed to inspect Petitioner's facility on three occasions, each time either failing to open the exterior door or simply lying about her attempts to do so.

Turning to Mr. Patel's testimony, I observe he was not present during any of the three site visits described by Inspector Brasher.  While he has no doubt provided what he believes to be evidence of general practice at Petitioner's facility, he cannot provide evidence that undermines Inspector Brasher's findings because he was not there during any of her site visits.

Mr. Patel's declaration otherwise focuses on admissions he made in Petitioner's reconsideration request, which he now claims were inaccurate or unclear.  Mr. Patel claims he mistakenly stated Mr. Karan was not present during one inspection, and that the branch manager "had no deliveries on the dates of the site visits."  P. Ex. 8 at 1.  He declared that Petitioner's third-party vendor, who maintained all records of its orders and deliveries, had "no record of any delivery being made" by Petitioner on any of the three inspection dates.  *Id.* Mr. Karan echoed Mr. Patel's claim, stating "on this day I did not have a delivery" with respect to each inspection date.  P. Ex. 6 at 1-2.

Even if I accepted Mr. Patel's correction of his prior statements, it does not change the outcome here.  At best, Mr. Patel's statement makes it possible for Mr. Karan's claim that he never left the facility to be possibly true (instead of verifiably false) for one out of three inspection visits.  And because I have already found Petitioner's claim that the exterior door was never locked to be incredible, it is entirely possible Mr. Karan was present during Inspector Brasher's visits, but was simply unaware of her attempts to gain entry as the exterior door was locked.

Aside from the statements of Mr. Patel and Mr. Karan, Petitioner also attempts to discredit Inspector Brasher's reports.  P. Br. 12-14.  Petitioner first contests the inspector's conclusion that its lights were off because the reflective tinting on the facility's front window "does not allow someone to determine whether the lights are on or off at the facility."  P. Br. at 12, citing P. Ex. 3, P. Ex. 4, P. Ex. 7, P. Ex. 8, CMS Ex. 3 at 8-9, CMS Ex. 4 at 8.  This claim is without merit.  First, during the initial inspection, the inspector reported that the lights "*appear* to be off."  CMS Ex. 3 at 7 (emphasis added).  And even Mr. Patel concedes that the mirrored exterior made it "*virtually* impossible" to see if the lights were on or off.  P. Ex. 8 at 1 (emphasis added).

On my own review of these photographs, it is apparent that the mirrored exterior made it difficult – but not impossible – to see inside.  CMS Ex. 3 at 8-9; CMS Ex. 4 at 8-9; P. Exs. 2-4.  In any event, Inspector Brasher's conclusion that Petitioner's business was not

**Page 10**

operational did not turn solely on her ability to see inside Petitioner's facility; she also relied on the simple fact that she could not access the facility through its exterior door on three separate occasions.

Petitioner also finds suspect Inspector Brasher's observation that an individual at the thrift shop next door did not know details about Petitioner, where she visited after failing to gain access to Petitioner's facility on May 22, 2017.  P. Br. at 12; CMS Ex. 4 at 7.  Petitioner explains the thrift shop was closed on that date, relying on photographs of the thrift store's posted hours of operation.  P. Ex. 5 at 1.  Mr. Karan further stated that he was familiar with the owner of the thrift store, who coached his son's football team.  P. Ex. 7 at 2.  Relying on the thrift store's posted hours and the alleged familiarity of its owner with Mr. Karan, Petitioner argues Inspector Brasher could not have spoken with anyone at the thrift store.  P. Br. at 12.  I do not find this argument persuasive.

First, Petitioner has not established the photograph it submitted in July 2018 showing the thrift store's posted hours reflected the thrift store's hours of operation in May 2017.  P. Ex. List at 1-2.  Further, it is unreasonable to assume an employee or owner of a small business would not be present on a day a business is not open to customers.  It is entirely possible the thrift store provided regular service hours to the public three days a week and had employees on-site on other days to perform work that did not involve customer interaction.  That view is reinforced here by the thrift store's signage, which indicated it was open on Tuesdays and Thursdays and closed on Saturdays and Sundays, but makes no mention of its operating status on Mondays or Fridays.  P. Ex. 5 at 2.

Finally, while Petitioner contends the thrift store owner was familiar with Mr. Karan, it does not allow for the possibility that another employee not familiar with Mr. Karan might have been present when Inspector Brasher visited the thrift store.  In order to resolve these issues, Petitioner could have simply obtained a sworn statement from the thrift store owner to establish neither he nor any of his employees were present on the date Inspector Brasher claimed to have spoken with someone.  Absent such competent evidence, Petitioner's reliance on speculative claims to undermine the inspector's findings is unavailing.

In sum, Petitioner has failed to contradict or rebut Inspector Brasher's report in any meaningful way.  I find the testimony of Mr. Karan and Mr. Patel to be less credible and inconsistent with the evidence of record overall for the reasons I have explained.  Similarly, Petitioner's efforts to undercut the veracity or reliability of Inspector Brasher's reports are unpersuasive.  I find it highly unlikely that an NSC inspector would make the effort to visit Petitioner's facility, take photographs, and fabricate a report on three different occasions.  I find it more likely than not that Inspector Brasher visited Petitioner's facility on the dates and times she recorded, attempted to gain entry on each occasion, and in all three instances found the exterior door locked.  I also find that more likely than not, Inspector Brasher knocked on the exterior door on all three occasions but

**Page 11**

received no response.  Because the exterior door was locked and the inspector's knocks went unanswered, I find Petitioner's facility was not accessible or staffed.

***B.  CMS had a legal basis to revoke Petitioner's Medicare enrollment and billing privileges because Petitioner's facility was not accessible and staffed during its posted hours of operation in violation of 42 C.F.R. § 424.57(c)(7).***

CMS had a legal basis to revoke Petitioner's Medicare enrollment and billing privileges.  The DMEPOS supplier requirement to be staffed and accessible during normal hours of operation is a rule that has few exceptions.  *See* *Norpro Orthotics & Prosthetics, Inc.*, DAB No. 2577 at 5 (2014); *Benson Ejindu, d/b/a Joy Medical Supply*, DAB No. 2572 at 6 (2014).  A DMEPOS supplier is not "accessible" if the supplier's location is closed because the staff is out for lunch, on a break, making patient visits, or out of the office for any reason.  *See Ita Udeobong, d/b/a Midland Care Medical Supply and Equipment*, DAB No. 2324 at 6-7 (2010).  A supplier may not close, even temporarily, during its posted hours of operation.  *Complete Home Care, Inc.*, DAB No. 2525 at 5 (2013).  If the staff of a DMEPOS supplier is present at its office, but the door is locked and the staff do not hear the knock of an inspector, then the office is not accessible under 42 C.F.R. § 424.57(c)(7).  *Ejindu*, DAB No. 2572 at 6-7.

It is undisputed that Petitioner's posted hours of operation were 8:00 AM to 5:00 PM.  CMS Ex. 3 at 3; P. Ex. 8 at 1.  Petitioner is obligated to be accessible and staffed during its hours of operation.  42 C.F.R. § 424.57(c)(7).  For the reasons I have discussed, I find Inspector Brasher was unable to gain access to Petitioner's facility during Petitioner's posted hours of operation on three occasions:  April 25, 2017, at 11:40 a.m., April 27, 2017, at 1:35 p.m., and May 22, 2017, at 2:20 p.m.  Petitioner's facility was inaccessible during its posted hours of operation.  *Ejindu*, DAB No. 2572 at 6 (a supplier "does not 'provid[e] access' to a Medicare beneficiary . . . if its entry door is locked during posted hours, no one responds to a knock on the door, and there is no alternative means of gaining entry . . . .").

Neither party has addressed the fact that Petitioner's exterior door bore a contact number to call, or that Inspector Brasher documented no effort to call that number during any of her three attempts to visit the facility.  But I find the inspector had no obligation to do so, since a means of contact does not amount to access; as the Board observed in *Ejindu*, "an instruction to call one of the listed telephone numbers would have been of dubious help to a customer who was not carrying a mobile phone.  Petitioner submitted no evidence from which the ALJ (or this Board) could reasonably infer that persons without mobile phones could have contacted him and obtained entry to his facility without undue delay or inconvenience."  *Ejindu*, DAB No. 2572 at 7; *see also* *Advance Group LLC*, DAB No. 2686 at 9 (2017) ("It is the supplier's responsibility to provide alternative means of

**Page 12**

gaining entry, not the beneficiary's or other customer's responsibility to puzzle out what that might be.").

Based on the evidence before me, I have found Inspector Brasher's reports to be credible.  Relying upon her sworn statements, I conclude the exterior door of Petitioner's facility was locked, and that the inspector was unable to gain access to the facility.  The inspector's inability to access the facility despite knocking on each occasion undermines Petitioner's claim that it was in fact staffed during her three attempted site visits.  And while Petitioner posted an emergency contact number on its exterior door, such posting was inadequate to provide access to the public.  I conclude that Petitioner violated 42 C.F.R. § 424.57(c)(7), because its facility was not accessible and staffed during its posted hours of operation on April 25, April 27, and May 22, 2017.

***C.  CMS had a legal basis to revoke Petitioner's Medicare enrollment and billing privileges pursuant to 42 C.F.R. § 424.535(a)(5), because Petitioner's facility was no longer operational.***

CMS is authorized to revoke a supplier's Medicare enrollment and billing privileges if, "[u]pon on-site review or other reliable evidence, CMS determines that the provider or supplier is . . . [n]o longer operational to furnish Medicare-covered items or services."  42 C.F.R. § 424.535(a)(5).  A supplier is operational if it:

has a qualified physical practice location, is open to the public for the purpose of providing health care related services, is prepared to submit valid Medicare claims, and is properly staffed, equipped, and stocked (as applicable, based on the type of facility or organization, provider or supplier specialty, or the services or items being rendered), to furnish these items or services.

42 C.F.R. § 424.502.  As I have previously discussed, CMS's contractor was unable to complete an on-site inspection because Petitioner's facility was not accessible and staffed.  It therefore could not be "open to the public" or "properly staffed" as the regulation requires.  *Id.*

With its reconsideration request, Petitioner submitted evidence to support its contention that it was operational.  Specifically, Petitioner submitted a letter from its property manager stating Petitioner has been renting space at the address of record since June of 2004 (CMS Ex. 6 at 8); a certificate of occupancy (CMS Ex. 6 at 9); a note reportedly from King Pharmacy stating that no one asked if the store was open or if they had seen Petitioner's manager (CMS Ex. 6 at 10); three energy bills (CMS. Ex. 6 at 11-13); and three certificates of liability insurance (CMS Ex. 6 at 14-16).

**Page 13**

But even if I were to consider this evidence, it would not rebut my conclusion that Petitioner's facility was not accessible or staffed during Inspector Brasher's three site visits.  At best, this evidence could only establish Petitioner had been operational prior to or after the site visits at issue here.  *See Mission Home Health et al.*, DAB No. 2310 at 6 (2010) (the Board observing while applying the analogous enrollment denial regulations, "CMS could thus deny enrollment based on Mission's undisputed failure to be operational when the inspector visited its address, regardless of whether its entities may have been operational at some earlier time.").

Accordingly, I find that Petitioner did not meet the requirement to be operational pursuant to 42 C.F.R. § 424.502, and conclude that CMS was authorized to revoke Petitioner's enrollment and billing privileges pursuant to 42 C.F.R. § 424.535(a)(5).

***D.  CMS properly determined that Petitioner's Medicare enrollment and billing privileges were revoked effective May 22, 2017, pursuant to 42 C.F.R. § 424.535(g).***

The regulation at 42 C.F.R. § 424.535(g) provides that when a revocation is authorized under 42 C.F.R. § 424.535(a)(5), the revocation of the supplier's billing privileges is effective the date the location is determined by CMS or its contractor not to be operational.  Pursuant to section 424.535(g), Petitioner's revocation is effective May 22, 2017, the date of the third failed site visit.


          /s/
        Bill Thomas

                      Administrative Law Judge
      1. Petitioner could have requested that I issue a subpoena for testimony pursuant to 42 C.F.R. § 498.58, but did not do so.  Civ. Remedies Div. P. § 17(b). back to note 1
                      2. Findings of fact and conclusions of law are set forth in italics and bold font. back to note 2
                      3. The quality of these photographs is very poor.  I rely in part on Inspector Brasher's reference to and recording of the language on the exterior door sign contained in her site inspection reports.  CMS Ex. 3 at 3; CMS Ex. 4 at 7. back to note 3 Back to top
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