The Americans with Disabilities Act of 1990, 42 U.S.C. §§12101 et seq. (ADA), is designed to prohibit discrimination against individuals with disabilities. This includes discrimination in public accommodations. Most businesses open to the public, such as doctors' offices and other healthcare suppliers' premises, must comply with ADA requirements. Virtually every business serving the public is subject to the ADA. Violation of the ADA can lead to civil money penalties, and any person who is subject to discrimination on the basis of disability may bring a civil action. 28 C.F.R. §36.501.
For durable medical equipment, prosthetics, orthotics and supplies (DMEPOS) suppliers that participate in Medicare, failure to comply with the ADA can have dire consequences. The Centers for Medicare & Medicaid Services (CMS) can revoke a provider or supplier's Medicare enrollment and the corresponding provider or supplier agreement for a number of reasons, including in situations where the provider or supplier is determined not to be in compliance with Medicare enrollment requirements and has not submitted a plan of correction. 42 C.F.R. §424.535. Among the other requirements for DMEPOS suppliers is the mandate that the business be operated in compliance with federal regulatory requirements that "ensure accessibility for the disabled." 42 C.F.R. §424.57(c)(1). Additionally, the business must be "accessible." Id. at (c)(7)(i)(C).
In Senegal Enter. Med., Inc. v. CMS, the Departmental Appeals Board for the U.S. Department of Health and Human Services, Docket No. C-19-387, Civil Remedies Div., Decision No. CR5477 (Nov. 25, 2019), issued an opinion affirming CMS' decision to revoke the Medicare billing privileges of DMEPOS supplier Senegal Enterprises Medical, Inc. (Senegal). On July 3, 2018, a site inspector attempted to visit Senegal's location, but was unable to access it. Senegal was notified, in letters dated Aug. 30, 2018, that its Medicare supplier number would be revoked in 30 days and that it would be barred from reenrolling in Medicare for one year. The supplier was given the opportunity to submit a corrective action plan and submit a request for reconsideration if it believed the determination was incorrect.
Senegal submitted a corrective action plan that the National Supplier Clearinghouse (NSC) received on Sept. 13, 2018. A site inspector returned to the facility a short time later. Unfortunately for Senegal, the inspector found the site to be inaccessible and not ADA-compliant due to the fact that several steps were needed to get into the facility. NSC sent Senegal a letter on Oct. 2, 2018, concluding that there was no error in terminating the Medicare billing number due to the failure to comply with the ADA and a lack of verifiable explanation for the noncompliance. Senegal submitted a request for reconsideration on Oct. 17, 2018. The supplier indicated that it would be installing a ramp later that month.
In support of its decision to uphold the termination, the appeals board noted that, in order to bill Medicare, a DMEPOS supplier must meet the Medicare enrollment standards, "including the requirement to maintain a physical location that is accessible to the public." Therefore, it appears that Senegal's compliance efforts amounted to too little, too late. If the accessibility issues had been addressed after the supplier received notice of the problem, and prior to the second inspection, it likely could have avoided Medicare termination and a one-year reenrollment bar. This case serves as a reminder of the importance of maintaining a site that is accessible by all members of the public.
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