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Popkin v. Burwell

United States District Court, District of Columbia

March 24, 2016

GREGG POPKIN, et al., Plaintiffs,
v.
SYLVIA M. BURWELL, Defendant.

OPINION

ROSEMARY M. COLLYER UNITED STATES DISTRICT JUDGE

The Department of Health and Human Services, through the Centers for Medicare and Medicaid Services, deemed Dr. Gregg Popkin and his clinic, Atlantic Medical, Inc., to be at high risk for fraud and abuse and placed Atlantic Medical on pre-payment review. When the vast majority of claims for payment were denied, Atlantic Medical went out of business. Plaintiffs Dr. Popkin and Atlantic Medical sue the Secretary of the Department of Health and Human Services, alleging claims under the Administrative Procedure Act, 5 U.S.C. § 701 et seq., the Fifth Amendment Due Process Clause, and the First Amendment. They seek a preliminary injunction terminating pre-payment review and requiring the Secretary to remit all payments. The Secretary opposes. Because Plaintiffs failed to exhaust their administrative remedies, the case must be dismissed for lack of jurisdiction and the motion for a preliminary injunction will be denied.

I. FACTS

A. Medicare Act and the Administrative Process

The Medicare Act, 42 U.S.C. § 1395 et seq., establishes a health insurance program for disabled and elderly individuals. Part A covers inpatient hospital stays, other institutional care, and home health care. 42 U.S.C. § 1395d. Part B covers physician and other medical services. Id. § 1395k. The Secretary of the Department of Health and Human Services administers the Medicare program through the Centers for Medicare and Medicaid Services, which contracts with Medicare Administrative Contractors to manage enrollment of health care providers and to process payments. Id. §§ 1395kk-1395kk-1(a). Under this system, a Medicare health care provider submits its claim for payment directly to the Medicare Administrative Contractor for its geographic region, and the Medicare Administrative Contractor issues an initial payment determination. Id. §§ 1395kk-1(a), 1395ff(a)(1)-(2); 42 C.F.R. § 405.904(a)(2).

When a Medicare Administrative Contractor denies or limits payment on a claim on initial determination, there is a four-level appeal process. 42 U.S.C. § 1395ff. At the first level, a provider may seek redetermination from an individual at the Medicare Administrative Contractor who was not involved in the initial decision. Id. § 1395ff(a)(3); 42 C.F.R. §§ 405.904(a)(2), .948. At the second level, a provider may seek reconsideration by a Qualified Independent Contractor.[1] 42 U.S.C. § 1395ff(b)-(c), (g); 42 C.F.R. § 405.904(a)(2). If the Qualified Independent Contractor does not make a decision within 60 days, a provider can bypass such review and appeal to the third level. 42 U.S.C. § 1395ff(c)(3)(C)(ii); 42 C.F.R. § 405.970.

Where the amount in controversy is over $100, a third level of review is available--a hearing before an administrative law judge (ALJ). 42 U.S.C. §§ 1395ff(b)(1)(E), (d)(1). The Medicare Act requires the ALJ to conclude a hearing and render a decision on the appeal of a decision of a Qualified Independent Contractor within 90 days after the request for hearing. Id. § 1395ff(d)(1)(A); 42 C.F.R. § 405.1016. A claimant can appeal the decision of the ALJ to the fourth level, the Medicare Appeals Council, see id. § 1395ff(d)(2), or if the ALJ fails to render a decision in 90 days, a claimant can “escalate” his appeal to the Medicare Appeals Council. Id. § 1395ff(d)(3)(A). The regulations describe the process for requesting that an appeal be escalated to the next level:

(a) Requesting escalation. An appellant who files a timely request for hearing before an ALJ and whose appeal continues to be pending before the ALJ at the end of the applicable ALJ adjudication period under § 405.1016 may request [Medicare Appeals Council] review if-
(1) The appellant files a written request with the ALJ to escalate the appeal to the MAC after the adjudication period has expired; and
(2) The ALJ does not issue a decision, dismissal order, or remand order within the later of 5 calendar days of receiving the request for escalation or 5 calendar days from the end of the applicable adjudication period set forth in § 405.1016.
(b) Escalation.
(1) If the ALJ is not able to issue a decision, dismissal order, or remand order within the time period set forth in paragraph (a)(2) of this section, he or she sends notice to the appellant.
(2) The notice acknowledges receipt of the request for escalation, and confirms that the ALJ is not able to issue a decision, dismissal order, or remand order within the statutory timeframe.
(3) If the ALJ does not act on a request for escalation within the time period set forth in paragraph (a)(2) of this section or does not send the required notice to the appellant, the QIC decision becomes the decision that is ...

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