05/21/2014    Paul Kesselman, DPM

Revocation of OH Podiatrist's Enrollment Affirmed

The last few days have been especially troublesome
surrounding an ALJ decision on our colleague from
Ohio. For me to remain silent on a member’s dis-
enrollment for reasons recently leveled by some
colleagues against this ALJ, has been rather
difficult if not unconscionable. As a proud member
of the Hebrew faith, I have never shunned from
speaking out when these types of accusations are
made.

One can ask any member of my ICPM class of 1981.
When a deceased “infamous” faculty member, chose
to use his bully pulpit to make some anti-Semitic
comments on the eve of the holiest day of the
Jewish calendar, one of my classmates (Sid Sharp)
and I reacted by forming a Hillel and as far as we
know it still flourishes at Scholl. The horrendous
anti-Semitic comments from that faculty member
ceased and attempted actions resolved. Having
been active in “Jewish” affairs and the podiatric
profession for many years, this was an event where
I perhaps could have reacted faster and harsher.

However, cooler heads prevailed on me to analyze
this situation further prior to reacting. Time has
finally allowed me to provide some explanations.

While this scenario had me doing “instant replays”
from those days more than 35 years ago at ICPM,
I’ve realized this is quite a different situation;
there is presently no proof at this time that
these situations are remotely similar. One uttered
gutter language while attempting to take
unilateral action against a select group of
students who had done nothing wrong; whereas the
present situation is due to one person suffering
the consequences of not following some poorly
written regulations, allegedly at the hands of
someone perceived to be anti-Semitic. The result
of the present situation is an undue punishment
for an inaction which was not adequately explained
and meted out by perhaps, an insensitive ALJ who
perhaps could have shown some restraint. Perhaps
this government bureaucrat may indeed require some
additional sensitivity training. Perhaps he was
biased but there is little evidence to this. For
anyone to show bias against the ALJ, simply due to
his last name, may be equally inappropriate.

Further investigation into this matter may put a
resolution to the allegations of undue prejudice
one way or another. It is far beyond the scope of
this paper to come to that sort of conclusion.
I have used the last week (and hopefully you have
as well) to thoroughly review the ALJ decision. I
also spoke with attorneys, the NSC Outreach and
Education department and my malpractice carrier.
Interestingly enough, I have not heard from Dr.
Lubell, despite asking several members of the OPMA
to have him contact me. I have also not spoken
with the NSC investigator, the SACU or the ALJ
involved. Nor is it my job (nor yours) to do so…
More on that later.

Having said all of that… Here are the facts (as I
know them to be) which we can all share:
1) Dr. Lubell submitted an application for re-
enrollment as a DME supplier dated February 14
2013;
2) Supplier Standard number 7 stipulates that a
supplier will allow access to an inspector during
their normal hours of operation;
3) The applicant’s signature on the supplier
application stipulated his hours of operation and
acknowledges his agreement to adhere to the
Supplier Standards and the possible results of
failure to do;
4) When the inspector(s) came to validate the
physical location of Dr. Lubell’s office during
the normal course of operations stated on his
855S, they found that the office was closed;
initially on March 21, 2013 and the second date on
March 26, 2103. Further research shows that the
initial date was not a Jewish, Christian, Muslim
or other religious Holiday. The second inspection
attempt on March 26, 2013, coincided with the
first full day of Passover;
5) No signage was posted to indicate that the
office was closed for religious (or any other
valid) reasons on either day ;
6) These decisions were appealed on several
occasions. The ALJ made a Summary Judgment, solely
based on the “paperwork” before the ALJ and
without any oral arguments presented by either CMS
or Dr. Lubell; A Summary Judgment is not
automatically leveled by an ALJ.
7) I (as well as several others who reviewed this
document) found no indication legal counsel was
involved for Dr. Lubell; if so they were not
identified;
8) The ALJ decision banned Dr. Lubell from the
Medicare DMEPOS program for two years (as is
contained in the regulations), should one fail to
comply with Supplier Standard Number 7;
9) Dr. Lubell was not charged with any criminal
wrong doing, therefore this should not impact his
current regular Medicare enrollment or his current
enrollment as a DMEPOS supplier at any other
location (if he has one) or that of any other
third party payer;
10) The impact on the completion of future
enrollment questions, including, “Have you ever
been barred from the Medicare or any other
Federal, State or Third Party Payer reimbursement
program” is unclear.

Having reviewed these issues (again with no input
from Dr. Lubell), I then contacted an outreach and
educational representative at the NSC. She has
always been a very helpful resource and in the
past I have found her to be a deeply religious
person who shares a similar interest in liturgical
music. She acknowledged to me that the NSC will
visit a location two times during the hours of
operation found on the 855S. If the inspector
cannot gain access to the facility after two
attempts, that is a reportable violation of
Supplier Standards number 7.

She further stated that Federal regulations
require the applicant to be suspended from the
DMEOPS Medicare program for two years. Further
questioning led her to inform me that inspectors
are not sent out on Federal holidays. Should they
choose to work on a Federal holiday they cannot
report violations of Supplier Standard #7 for
those days. Furthermore, religious holy days such
as Yom Kippur, Rosh Hashanah, Good Friday, Holy
Thursday, etc. can be reported as violations of
Supplier Standard number 7, since they are not
“technically” Federal Holidays. This, despite the
fact that they are celebrated by a large number of
Americans. However, she did inform me that the
inspectors are taught to be sensitive to a
neighborhoods ethnic diversity.

I pointed out that this may not have been the case
here and perhaps the inspector and/or the ALJ or
any official at any level once they heard the
excuse for the second missed inspection, should
have been more sensitive to this physicians
religious beliefs.

I, of course, was informed that had Dr. Lubell, on
any of these occasions posted a sign that the
office was closed for religious observances, those
attempts at site inspection would have been
excusable. The SACU Supplier Audit Compliance
Unit) would have instructed the inspector to
return for another attempt at inspection.
Inspectors are also told that if there is a local
situation impeding on the inspector’s (or most
worker’s) ability to gain access (e.g. parade,
inclement weather, etc.) they will be informed
that even if that was the second visit, they would
again be instructed to make a third attempt to
inspect the facility.

She informed me that while the previous bits of
information are not encoded in the Federal
Register, they are internal regulations practiced
by the SACU and NSC. She promised to the best of
her ability, to forward those to me for further
study and for use as an educational tool and to
share with the podiatric community. In the end,
she understood my frustrations with these
regulations and the apparent insensitivity on the
part of this ALJ decision. However, she stood firm
on the need for signage posting indicating that
the office was closed for religious observance.

My next step was to speak with Kathy Phillips and
Ross Taubman both of PICA. I have and continue to
work with PICA as an expert witness on audit
defense cases involving DME. PICA has also been of
great assistance to many NY Podiatrists (myself
included) in avoiding termination without cause
from a Medicare Advantage Plan. Taubman informed
me that PICA was previously unaware of this case.

Had Dr. Lubell been a PICA policyholder and had he
reported this situation from the onset, PICA would
have provided administrative legal defense. Given
my past experience with PICA’s attorneys, our
shared opinions were that had this been entrusted
to an experienced attorney from the outset, the
outcome may have been quite different.

Having investigated this situation (as best as
possible, without speaking with any of the
interested parties involved) there are many
unanswered questions. The most important ones are:

1) How can one avoid being placed in this type of
situation?
2) Can anything be gained by pursuing arguments of
religious prejudice?
3) Are there any legal grounds for appeal?
4) How expensive would it be to appeal this to the
next level?
5) Could an experienced attorney successfully
appeal this case given its current track record?
6) How much time would elapse before reaching the
next appeal level? And lastly…
7) Could a potentially embarrassing situation for
CMS be negotiated and simultaneously resolve the
doctor’s problems?

Of all the practical solutions for this case,
assistance from one’s Congressional delegation may
be the least expensive and perhaps the quickest (I
can’t believe I’m writing this) way to resolve
this. Perhaps a political solution can be
achieved whereby CMS and its agencies are spared
the negative publicity this case has the potential
to produce, yet still result in providing the
additional sensitivity training for the ALJ and
SACU. Ultimately the desired result is having the
doctor afforded the opportunity for an additional
inspection and having his supplier number (at this
location) restored. I believe his last year of
pain has been enough punishment and we have all
learned a valuable lesson.

The main lessons here are not to attempt to handle
these matters without professional assistance.
Just as one should report a request for medical
records (should you suspect a potential
malpractice action) to your liability carrier, one
should also report any administrative action
levied against your practice to your insurance
carrier. Not all professional liability carriers
provide administrative defense. One needs to take
more than price into consideration when comparing
carriers.

In the coming months, I will be working with APMA,
PICA and others to produce some additional
educational materials on administrative defense as
it pertains to DME. I wish to thank all those who
contacted me either by phone or email to offer
their valuable opinions.

Paul Kesselman, DPM, Woodside, NY,
drkesselmandpm1@hotmail.com

Other messages in this thread:

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05/24/2014    Paul Kesselman, DPM

Revocation of OH Podiatrist's Enrollment Affirmed (Bryan C. Markinson, DPM)

This Ohio DPM unfortunately brought upon himself
the wrath of our illustrious public government. He
failed in a number of ways as I and others have
previously commented.

To answer Dr. Markinson: if you can't show up for
work one day because of illness, family emergency,
or whatever reason, you should have a staff member
at the office; or at least arrange for a neighbor,
friend, store owner next door to place a simple
sign, closed due to.... will return on.... When
you sign up to be a DMEPOS provider, you are no
longer a physician, but a store owner with all
those responsibilities.

I'm not saying this system is fair. Dr. Markinson
and others are correct; One infraction should not
result in banishment from the system.
The gov't no doubt has gone haywire and overboard
in a rather feeble attempt to "right the ship"
away from those who have given up their guns and
now are white collar criminals disguising
themselves as DME suppliers.

The gov't has no doubt literally thrown the baby
out w/the bath water, by as Mr. Boone so
eloquently put it, placed a 800 lb. gorilla in our
offices.

Unfortunately, as Tip Sullivan said in his
posting, much of the time in news conferences you
will see gov't bureaucrats doing things to support
their very occupational existence instead of
really doing anything productive.

When I see OIG postings boasting about the arrest
of a $3M, $10M or more DME scam artist, I don't
applaud. As a taxpayer and provider of healthcare
services I get angry. Why did the system allow
this to go so far along in the first place? Why
can't the system put in place an inexpensive
mathematical computer model which would stop these
types of reimbursements from escalating at such a
fast pace in the first place?

The answer is PR and splashy headlines. A bust of
someone for $$Millions makes bigger headlines and
the bureaucrat gets a pat on the back. The gov't
just doesn't think its worth the investment in $$
to do stings on smaller amounts. However, how
often do you ever see follow up pieces about how
much of the money that was allegedly stolen was
recovered and returned to the treasury? Not
likely, and why? Most is off shore, out of reach
of the U.S. Treasury.

Instead as Tip put it, the gov't has enabled
private contracts with all sorts of acronyms to
take over healthcare and put in so many audit
levels, it would make any CPA or IRS agent become
frazzled. No longer is it about taking adequate
care of the patient. But of course, if you don't
do that properly there is bevy of malpractice
lawyers waiting to tear you apart.

Unfortunately, in the private sector its no
different. Suzanne Levine gets lambasted (perhaps
rightfully so), but the UHC managers
who approved these payments are not not fired,
demoted or slapped with a black mark in their
personnel file. They are applauded and
honored for finding out about this. My question is
where were you before and why if this was so
outrageous did you allow that check to go out in
the first place? How many others did go out not
only to Dr. Levine, but to other types of
providers?

The system is totally broken. I can't wait to get
out. Now my biggest fear as I approach my 60th
birthday, is if this system continues along its
current path is, who will be left to take care of
me when I need a doctor?

Paul Kesselman, DPM, Woodside, NY,
drkesselmandpm1@hotmail.com