United States District Court, E.D. Pennsylvania
PETER S. MCCAMBRIDGE, Plaintiff,
SYLVIA MATTHEWS BURWELL, SECRETARY OF HEALTH AND HUMAN SERVICES, Defendant.
G. SMITH, J.
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.
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
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.
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.
The Regulatory Framework Applicable to Claims for
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. §§
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).
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”) 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. §§
Factual Background and Procedural History
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). 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.
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.
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). McCambridge did not seek further review.
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.”)
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. 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.
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.
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.
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.
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.
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. 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. Doc. Nos. 17, 18.
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.
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.
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 ...