Health Law Daily Wrap Up, ADMINISTRATION OF MEDICARE/MEDICAID PROGRAMS—DAB DECISIONS: Provider’s attestation that he did not have the requested records was sufficient to establish non-compliance, (Jan 21, 2026)

By Jeffrey H. Brochin, J.D.

The fact that the records requested by CMS belonged to a former telemedicine platform did not absolve the Provider of his obligation to maintain proper DMEPOS documentation related to the treatment of 20 Medicare beneficiaries.

The Department of Health and Human Services Departmental Appeals Board (DAB or Board) Civil Remedies Division has upheld the revocation of a Provider’s Medicare enrollment and billing privileges, and his 10-year re-enrollment bar. It was his responsibility to maintain records for 7 years on 20 beneficiaries for whom he was the ordering physician for DMEPOS items and to provide access to such to medical record documentation, and his failure to do so constituted non-compliance with the records requirement. In addition, each such failure to maintain and provide access to the requested medical record documentation constituted an individual act of noncompliance for each beneficiary, thereby justifying the imposition of a 10-year re-enrollment bar (Leland Henry Dao, D.O., Docket No. C-21-505, Decision CR6559 (Oct. 22, 2024)).

Request for documentation. The Provider (Petitioner) is a doctor of osteopathic medicine who was enrolled as a Medicare supplier, and Qlarant Integrity Solutions, LLC (Qlarant), is a Unified Program Integrity Contractor (UPIC). On January 17, 2020, Qlarant informed the Petitioner that it was conducting a review of durable medical equipment, prosthetics, orthotics, and supplies (DMEPOS) claims and requested that he submit records within 45 days for 20 beneficiaries for whom he was the ordering physician for DMEPOS items. On July 14, 2020, Qlarant issued a second notice in which it cautioned that it may revoke the Petitioner’s Medicare enrollment if it did not receive the requested records within 15 days. In response, the Petitioner provided a signed attestation to Qlarant on July 27, 2020, indicating that he did not have documentation related to the treatment of the 20 beneficiaries.

After the Petitioner did not submit the requested records, Noridian Healthcare Solutions, LLC (Noridian), an administrative contractor acting on behalf of CMS, issued an initial determination, dated August 19, 2020, informing him that it had revoked his Medicare enrollment and billing privileges pursuant to 42 C.F.R. § 424.535(a)(10), effective September 18, 2020, due to his failure to comply with 42 C.F.R. § 424.516(f). Noridian also informed the Petitioner that it had imposed a 10-year bar to re-enrollment.

Defunct telemedicine platform. The Petitioner submitted a request for reconsideration in which he explained that he believed any record request should be directed to Redidoc, a telemedicine company. He further stated that he tried to contact Redidoc himself to request records but was unable to reach the company and believed it may be defunct, and he expressed concern that he may not be able to obtain the records. He hoped that his submission would help explain why he did not provide the records that were requested.

In a letter dated January 26, 2021, CMS’s Provider Enrollment & Oversight Group informed the Petitioner that although he had not timely requested reconsideration of the initial determination revoking his enrollment, it had granted a “good cause waiver” and was issuing a reconsidered determination. That reconsidered determination upheld the revocation of the Petitioner’s enrollment. CMS explained, in pertinent part, that the documentation that a physician is required to maintain for seven years includes written and electronic documents relating to written orders, certifications, referrals, prescriptions, and requests for payments for Medicare Part A or B services, items or drugs. Since the Petitioner was a physician who provided Medicare Part B services (including ordering and certifying DMEPOS) the regulation applied to him.

Records obligation on the physician. The Petitioner argued that CMS should not revoke his Medicare enrollments because the requested records actually belonged to his former employer, telemedicine platform Redidoc. However, the Board disagreed, noting that responsibility to maintain documentation ultimately lies with the physician, and the fact that the records allegedly belonged to his former employer did not absolve him of his obligation to maintain proper documentation as required by § 424.156(f)(2)(i)(A).

The Board also underscored the fact that on July 10, 2020, he signed an attestation that he did not have the documentation requested by Qlarant, and that attestation was sufficient to establish that he failed to comply with the records maintenance requirements. In addition, he failed to provide access to the documentation at the request of CMS contractor Qlarant, and as a result, the revocation of his Medicare enrollments pursuant to § 424.535(a)(10) was upheld.

Re-enrollment bar challenged. As to the 10-year bar to re-enrollment, CMS explained that ‘each failure to maintain and provide access to medical record documentation constitutes an individual act of noncompliance for each beneficiary’ and that a provider or supplier that meets the revocation criteria is subject to revocation for a period of not more than 1 year for each act of noncompliance. Furthermore, the Board found that there was no Medicare claims data evidencing interaction with any Medicare beneficiary to establish medical necessity of the DMEPOS referrals.

Based on the foregoing, the Board upheld the decision as to the revocation of the Petitioner’s Medicare enrollment and billing privileges, and as to the 10-year re-enrollment bar.

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