United States District Court, W.D. Louisiana, Alexandria Division
DEE D. DRELL UNITED STATES DISTRICT COURT
the court are Plaintiffs "Motion for Preliminary and
Permanent Injunction, Mandamus and Consolidation Under
F.R.C.P. 65(a)(2)" (Doc. 14) and Defendants'
"Motion to Dismiss Plaintiffs Complaint for Injunctive
Relief and Mandamus" (Doc. 21). Both motions were argued
by the parties and taken under advisement on May 24, 2019.
Medicare Act, 42 U.S.C. §1395, et seq., was
enacted in 1965 under Title XVIII of the Social Security Act
to provide a health insurance program for the elderly. The
Secretary of the United States Department of Health and Human
Services was entrusted with promulgating regulations for the
administration of the Medicare program.
of the resulting regulations, participating medical providers
enter into a written agreement with Medicare. Medical
providers submit claims for reimbursement to a designated
Medicare Administrative Contractor ("MAC") after
rendering services to a Medicare beneficiary.42
U.S.C.§1395ff(a)(2)(A). An "initial
determination" by the Secretary as to whether to pay or
deny the claim must be made within 30 days of receiving the
claim, but the Secretary may "reopen or revise any
initial determination.. .under guidelines established by the
Secretary in regulations." 42 U.S.C §h(c)(D),
§ff(a), §ff(b)(1)(G), and 42 C.F.R. §402.920.
Additionally, a "post payment review process" may
be implemented by a Recovery Audit Contractor and/or a Zone
Program Integrity Contractor ("ZPIC"), which is
what transpired in this case. Providers agree that the Center
for Medicare and Medicaid Services can recoup overpayments
from current and future payments.
Michael Dole is a Louisiana licensed physician,
board-certified in pain management, and a qualified provider
of physician services covered by Medicare Part
Dr. Dole practices through a professional medical
corporation, Michael Dole, M.D., A Professional Medical
Corporation ("APMC"). APMC is the entity enrolled
in Medicare and it submits charges to Medicare for payment.
APMC's only physician is Dr. Dole and he is one of two
physicians in the Alexandria, Louisiana area who limit their
practice to the medical management of chronic pain. The other
physician is aging, in declining health, and has severely
restricted his practice. Neither physician is accepting new
Medicare patients, so Medicare beneficiaries must travel to
Shreveport, Lafayette, Baton Rouge or Houma to see a
physician who medically manages chronic pain.
contractor, AdvanceMed, conducted two separate post-payment
reviews of APMC: one in November 2015 and the second in April
2016. On September 29, 2016, AdvanceMed provided a letter to
APMC advising the post-payment review revealed two
overpayments were made to APMC: the first in the amount of
$9268.48 (58 claims reviewed) and the second in the amount of
$10, 466.84 (90 claims reviewed). From these figures,
AdvanceMed used statistical sampling and extrapolation to
calculate and project an overpayment of claims to APMC in the
amount of $4, 339, 672.96.
to 42 U.S.C. §1395ff, APMC initiated its four-level
administrative appeal of the "post-payment review."
APMC timely requested a redetermination from Novitas, the MAC
that initially approved both the $9, 268.48 and the $10,
466.84 payments. Novitas issued a timely redetermination and
denied APMC relief as to both amounts, APMC then timely
submitted a request for reconsideration of both amounts to a
"Qualified Independent Contractor", C2C Innovative
Solutions, Inc. In two separate decisions, one issued on June
16, 2016 and the other on July 7, 2016, APMC was denied
relief on the $4.3 million claim and the $9, 268 claim,
sought hearings before an Administrative Law Judge
("ALJ") on the $4.3 million claim on July 28, 2017
and on the $9, 268 claim on August 18, 2017, pursuant to 42
C.F.R. 405.1014. Over two years later, no ALJ has been
assigned to either case and no hearing has been held.
Nevertheless, the Defendants moved forward with recoupment
efforts in July 2017, charging 10.25% interest per annum to
all amounts allegedly owed and withholding 100% of APMC's
current Medicare reimbursements.
time of our hearing on May 24, 2019, it had been roughly 650
days since the ALJ hearing was requested, and in that time,
Medicare recouped $2.4 million from APLC by withholding
payments for services rendered. Medicare turned the remaining
debt over the United States Department of Treasury who in
turned hired Performant Recovery to collect the debt from
APMC. In light of the backlog of appeals, it is more likely
than not that Defendants will recoup 100% of the alleged
overpayment and accrued interest before an ALJ holds a