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Mccambridge v. Burwell

United States District Court, E.D. Pennsylvania

December 22, 2016



          EDWARD G. SMITH, J.

         For the past eight years, the pro se plaintiff has attempted to have Medicare cover his services rendered as a “surgical first assistant” for various physicians. Despite being denied enrollment in the Medicare program, the plaintiff, acting under a business name and apparently undeterred from the denial of coverage, managed to obtain an identifier that allowed him to bill Medicare for his services. In 2013, three years after obtaining this identifier, a Medicare contractor audited the plaintiff's billings for 2012 and determined that he had wrongfully billed Medicare for the same beneficiaries that physicians had billed. Thus, the Medicare contractor assessed an overpayment and attempted to recoup it from the plaintiff. The plaintiff appealed from the assessment, and this appeal reached the Medicare Appeals Council for resolution.

         The Medicare Appeals Council determined that Medicare did not cover the plaintiff's surgical first assistant services that he performed in 2012. The Council concluded that (1) the plaintiff, a surgical first assistant, was not authorized to receive payment directly under the Medicare statute because he was not a qualified, licensed health care provider; (2) the services for which the plaintiff billed Medicare were not payable as incident to a surgeon's services; and (3) the plaintiff is not entitled to a waiver of the overpayment assessed against him, as he was not without fault when he billed Medicare and received payment for his services. This decision became the final decision by the Secretary of the United States Department of Health and Human Services (the “Secretary”).

         This matter is before the court on the plaintiff's appeal from the final decision by the Secretary. The parties have brought this appeal for the court's resolution by filing cross motions for summary judgment. The plaintiff has also filed a motion to remand for the court's consideration, and has requested that the court appoint counsel on his behalf. The plaintiff's motion for summary judgment and motion to remand are difficult to evaluate, as they do not identify specific facts that the Secretary failed to consider, and do not identify specific authority that the Secretary misapplied or misinterpreted. To the extent that the court is able to construe the plaintiff's arguments, the plaintiff appears to contend that the Secretary should have limited her decision to the Medicare contractor's initial reasons for seeking reimbursement from the plaintiff, and also that the Secretary misinterpreted Medicare statutes and regulations.

         After reviewing the administrative record, the court finds that the record contains substantial evidence to support the Secretary's findings of fact, and that the Secretary's decision is in accordance with the law. In addition, the Secretary's review of all evidence contained in the administrative record was proper, and the Secretary's interpretation of the Medicare statutes and regulations was in accordance with congressional intent. Therefore, the court will grant the Secretary's motion for summary judgment and deny the plaintiff's motion for summary judgment and motion to remand. The court will also deny the plaintiff's request for appointment of counsel because he is not entitled to appointed counsel in this matter and the court declines to exercise its discretion to request counsel to represent him.

         I. BACKGROUND

         A. The Regulatory Framework Applicable to Claims for Medicare Reimbursement

         Established by Title XVIII of the Social Security Act (the “Act”), Medicare is a federally subsidized health insurance program administered by the Secretary. Heckler v. Ringer, 466 U.S. 602, 605 (1984) (citing 42 U.S.C. § 1395 et seq.). Medicare provides health care benefits to persons age 65 and older, certain disabled persons, and individuals with end stage renal disease. See 42 U.S.C. § 1395c (providing description of program). Medicare Part A provides insurance for the cost of hospital and related post-hospital services. Regional Med. Transp., Inc. v. Highmark, Inc., 541 F.Supp.2d 718, 720 (E.D. Pa. 2008) (citing Heckler, 466 U.S. at 605). Medicare Part B, which is primarily at issue in this matter, “establishes a voluntary program of supplemental medical insurance covering expenses not covered by the Part A program, such as reasonable charges for physicians' services, medical supplies, and laboratory tests.” Id. (citing 42 U.S.C. §§ 1395j-1395w-4).

         “In order to expedite claims processing, Medicare reimburses providers for services before reviewing the medical records associated with the claims and verifying that the claims are valid.” John Balko & Assocs., Inc. v. Secretary U.S. Dep't of Health & Human Servs., 555 F. App'x 188, 190 (3d Cir. 2014). “Medicare contractors . . . then review and audit providers to ensure that payments are made properly.” Id. (citing 42 U.S.C. 1395l(e)). “In addition to processing payments, Medicare [contractors] are charged with screening for fraud and initiating review or suspending payments when they have reliable evidence of wrongdoing.” Regional Med. Transp., Inc., 541 F.Supp.2d at 720 (citing 42 U.S.C. § 1395ddd; 42 C.F.R. § 405.371).

         A provider may appeal a Medicare contractor's initial determination to deny a Medicare enrollment application or to revoke the provider's billing privileges. 42 C.F.R. § 405.803(a). The appeals process consists of four levels of administrative review, followed by the possibility of judicial review after exhausting the administrative process. 42 U.S.C. § 1395ff (establishing the appellate process). A provider who is dissatisfied with the determination of a Medicare contractor, first appeals to the Medicare contractor for a redetermination by a hearing officer not involved in the initial determination. 42 C.F.R. §§ 405.803(b), 405.940. If the provider is dissatisfied with the redetermination, then the provider may appeal to a Qualified Independent Contractor (“QIC”) for reconsideration. 42 C.F.R. § 405.960. If the provider is dissatisfied by the QIC's reconsideration, the provider may request a hearing by an Administrative Law Judge (“ALJ”) in the Office of Medicare Hearings and Appeals. 42 C.F.R. § 405.1000. Finally, if the provider is dissatisfied with the ALJ's decision, the provider may request a review of the ALJ's decision by the Medicare Appeals Council (“MAC”)[1] or the Departmental Appeals Board (“DAB”). 42 C.F.R. §§ 405.1100, 498.80. After exhausting all administrative appeals, a provider who meets the amount-in-controversy requirement may seek judicial review in federal district court. 42 U.S.C. §§ 405(g), 1395ff(b).

         B. Factual Background and Procedural History

         The pro se plaintiff, Peter McCambridge (“McCambridge”), submitted an application to the Centers for Medicaid and Medicare Services (“CMS”) for enrollment in Medicare Part B in August 2008. See In re: Peter McCambridge, C.F.A., DAB No. 2290, 2009 WL 5227273 at *2 (H.H.S. Dec. 17, 2009).[2] In his application, McCambridge indicated that he sought enrollment as a “surgical first assistant, ” based on his completion of a course entitled “First Assistant Course for Surgical Technologists.” Id. A CMS contractor denied McCambridge's enrollment application on the grounds that McCambridge did not meet the Medicare enrollment and related Part B coverage requirements. Id.

         After unsuccessfully appealing the denial of his enrollment to the CMS, McCambridge sought a hearing before an ALJ. Id. Following a hearing, the ALJ granted summary judgment in favor of the CMS, upholding its denial of McCambridge's Medicare enrollment application. Id. McCambridge appealed from the ALJ's decision to the DAB, and the DAB affirmed the ALJ's decision. Id. at *1.

         In its December 2009 decision, the DAB concluded that the ALJ “correctly determined that the Medicare statute and regulations [did] not authorize CMS to enroll [McCambridge] in the Medicare program as a surgical first assistant” because, inter alia (1) a surgical first assistant did not provide “covered services” under Medicare, and (2) a person meeting the definition of a health care provider under HIPAA does not mandate a conclusion that the person is eligible to participate in Medicare. Id. at *3-7. McCambridge requested that the DAB reopen its decision, but the DAB denied his request on February 2, 2010. In re: Peter McCambridge, C.F.A., DAB No. 2290, 2010 WL 744489 (H.H.S. Feb. 2, 2010).[3] McCambridge did not seek further review.

         On February 9, 2010-one week after the DAB denied the request to reopen the decision denying Medicare enrollment-McCambridge obtained a National Provider Identifier (“NPI”) from the National Plan & Provider Enumeration System using the business name “Surgical Billing Specialist.” Administrative Record (“A.R.”) at 6.

         Three years later, in 2013, a Medicare contractor audited McCambridge's 2012 Medicare billings and determined that in sixteen of his billings, he had billed Medicare for the same beneficiaries as physicians had billed. A.R. at 95. As a result, the Medicare contractor assessed an overpayment and sought to recoup $7, 833.54 from McCambridge.[4] A.R. at 96. In the billings at-issue, McCambridge had billed Medicare for surgical assistant services listing the “Surgical Billing Specialist” NPI he obtained in 2010 as his billing NPI, and the NPIs of two Medicare-enrolled physicians as the rendering providers. A.R. at 7.

         McCambridge appealed the overpayment assessment through the Medicare administrative review process, and properly escalated his appeal to the MAC after the period for an ALJ to adjudicate his appeal had expired. A.R. at 69, 79. In the MAC's January 6, 2016 decision-which became the final decision of the Secretary and is the decision from which McCambridge seeks judicial review-the MAC upheld the overpayment determination assessed against McCambridge. A.R. at 15. McCambridge then initiated this action by filing a complaint against the Secretary, Sylvia Matthews Burwell, on March 11, 2016. Doc. No. 1.

         In the complaint, McCambridge claims that he is seeking judicial review as to whether “an enrolled provider (surgeon) [can] bill for both the assistant and surgeon's fees, if, a valid medicare[sic] reassignment between the surgeon and a medicare[sic] enrolled supplier exists[.]” Complaint at 2. McCambridge alleges that a physician is not prohibited from billing for both the physician's fees and the assistant's fees as long as a “valid Medicare reassignment form 855R” exists, and that in his case, such a reassignment is in place. Id. at 1, 3. McCambridge also claims that the initial reasons why the Medicare contractor sought reimbursement for services he billed include: (1) “the claims were thought to be previously adjudicated(duplicate [sic] claim), ” and (2) “because they were already paid, the claims were not medically necessary.” Id. at 1-2. McCambridge contends that the Secretary should have limited her review of his claim to only the initial reasons for the refund request, and that the Secretary improperly considered additional issues, including: “enrollment issues for surgical first assistants” and “incident-to billing[.]” Id. at 2. McCambridge requests that the court “take the necessary steps to rescind the refund request[, ]” as he contends that “the request has no merit.” Id. at 3.

         Prior to serving the complaint, on March 15, 2016, McCambridge filed a “Motion for Conference with U.S. Attorney, ” in which he sought “a 15-30 minute meeting with the U.S. Attorney assigned to this case” so they could “go over the forth [sic] level Medicare Appeal” and “review the record” because it “would save the court time.” Doc. No. 2. The court denied the motion on March 16, 2016, and informed McCambridge that he needed to complete service of process in accordance with Rule 4 of the Federal Rules of Civil Procedure. Doc. No. 3.

         On May 5, 2016, prior to the Secretary filing a response to the complaint, McCambridge filed a motion for summary judgment. Doc. No. 6. The Secretary filed a motion to dismiss the complaint on May 16, 2016. Doc. No. 7. On May 20, 2016, McCambridge filed a single document containing (1) a response to the motion to dismiss, and (2) a motion to amend the complaint to reflect an additional $500, 000 in damages for financial hardship. Doc. No. 10.

         After a telephone conference with the parties on June 1, 2016, the court entered an order (1) setting deadlines for the Secretary's filing of the administrative record and for the parties to file motions for summary judgment, and (2) denying without prejudice McCambridge's motion for summary judgment and the Secretary's motion to dismiss. Doc. No. 12. The Secretary filed the administrative record with the court on June 7, 2016. Doc. Nos. 13, 14. The Secretary filed an answer to McCambridge's complaint and his motion to amend the complaint (which the Secretary characterized as an amended complaint) on July 5, 2016. Doc. No. 15. McCambridge timely filed a motion for summary judgment on July 6, 2016.[5] Doc. No. 16. On July 8, 2016, the Secretary timely filed a motion for summary judgment and statement of undisputed material facts in support thereof.[6] Doc. Nos. 17, 18.

         McCambridge then sent the court a letter in which he sought an extension of time to respond to the Secretary's motion for summary judgment so he could attempt to obtain counsel. In response to the letter, the court entered an order on August 5, 2016, staying the time to file responses to the cross-motions for summary judgment and scheduling a telephone conference on August 10, 2016, to discuss McCambridge's request. Order, Doc. No. 19.

         Notwithstanding the pending telephone conference, McCambridge filed a motion to remand on August 8, 2016. Doc. No. 20. The court held the telephone conference with the parties on August 10, 2016, after which the court entered an order on August 11, 2016, which (1) lifted the previously-entered stay, (2) allowed McCambridge to seek counsel up to August 24, 2016, and (3) set an August 26, 2016 deadline for filing responses to the outstanding cross-motions for summary judgment. Order, Doc. No. 22.

         The court then received additional correspondence from McCambridge indicating that he was seeking to enter into some sort of stipulation with defense counsel. See Order, Doc. No. 23 (referencing correspondence). On that same date, McCambridge filed a “Motion to allow time for parties to enter [into] a stipulation ...

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