Tsoutsouris v. Shalala
| Decision Date | 11 June 1997 |
| Docket Number | No. 2:94-CV-208-RL-2.,2:94-CV-208-RL-2. |
| Citation | 977 F.Supp. 899 |
| Parties | George V. TSOUTSOURIS, Plaintiff, v. Donna E. SHALALA, Secretary of Health and Human Services, Defendant. |
| Court | U.S. District Court — Northern District of Indiana |
James V. Tsoutsouris, Valparaiso, IN, for Plaintiff.
Carol Davilo, Dyer, IN, for Defendant.
On April 22, 1994, the Secretary of Health and Human Services (Secretary) found that Medicare Part B overpaid the Plaintiff and denied the Plaintiff's claims to waiver of the overpayment and limited liability of the overpayment. The Plaintiff filed suit in this Court seeking judicial review of both the finding of overpayment and the denial of the Plaintiff's waiver and limited liability claims. Because the decision of the Administrative Law Judge (ALJ) was supported by substantial evidence, the Court GRANTS the Defendant's Motion for Summary Judgment and AFFIRMS the decision of the ALJ in all respects.
Pursuant to Section 205(g) of the Social Security Act, the Plaintiff files suit to challenge the decision of the ALJ finding that he was overpaid by Medicare Part B and denying his request to waive his recovery of the overpayment or limit his liability for the overpayment. 42 U.S.C. § 1395ff(b)(l) (Incorporating 42 U.S.C. § 405(g) by reference.). Because both parties have consented to the authority of the Magistrate, this Court has authority to decide the case pursuant to 28 U.S.C. § 636(c). Judicial review of the ALJ's decision in this case is limited to determining whether the ALJ based his decision upon substantial evidence or legal error.
Regarding the "substantial evidence" standard, 42 U.S.C. § 405(g) states that "[t]he findings of the Commissioner of Social Security as to any fact, if supported by substantial evidence, shall be conclusive ..." "Substantial evidence" is an evidentiary standard that will not be met by a showing of a mere scintilla of proof. Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427, 28 L.Ed.2d 842 (1971). However, if "such relevant evidence that a reasonable mind might accept it as adequate to support a conclusion is shown, the `substantial evidence' standard is deemed met". Id.
In addition to the required showing of substantial evidence, this Court must also refrain from upholding the determination of the Secretary if the evidence before the Secretary was not properly evaluated because of an erroneous view of the law, or legal error. Rohan v. Chater, 98 F.3d 966, 970 (7th Cir. 1996); Marcus v. Califano, 615 F.2d 23, 27 (2nd Cir.1979).
The Plaintiff claims that the ALJ did not base his decision on substantial evidence because a physician testifying at the hearing before the ALJ acknowledged that some of the treatments the Plaintiff rendered were appropriate. Furthermore, the Plaintiff claims that the ALJ committed legal error, a sentence four, § 405(g), remand, by misinterpreting the pertinent portions of the Social Security Act relating to overpayment of medical services, primarily 42 U.S.C. § 1395gg(c). In addition, the Plaintiff requests that additional evidence be allowed before the Court in the form of additional testimony regarding the medical necessity of the Plaintiff's unreimbursed treatments; in essence, the Plaintiff is requesting a sentence six remand, § 405(g), on the basis of new material evidence. Finally, the Plaintiff states that this Court could not properly grant the Defendant's Motion for Summary Judgment because there are factual issues present in the record that are to be determined by the trier of fact. This Court will take up each of the Plaintiff's contentions in turn.
Dr. George Tsoutsouris is a doctor and Medicare provider of podiatric medicine whose present practice is located in Hammond, Indiana. (R. 35, 421) In January 1991, Dr. Tsoutsouris was audited by Medicare Part B carrier, Blue Cross/Blue Shield of Indiana (Blue Cross). (R. 506) The Blue Cross audit consisted of a random examination of Dr. Tsoutsouris' debridement services from January 1, 1990 through June 30, 1990. (R. 506, 507) All services examined had been billed to Medicare Part B for reimbursement and afforded payment by Medicare. (R. 501) In the course of conducting its audit, Blue Cross chose fifteen claims submitted by Dr. Tsoutsouris' office for debridement of extensive eczematous or infected skin and reviewed Dr. Tsoutsouris' office notes and records regarding the treatment of each patient represented by the claims. (R. 506, 621) Following Blue Cross' review of Dr. Tsoutsouris' office records, a Blue Cross nurse auditor called Dr. Tsoutsouris in attempt at further clarification of the office records which were noted as largely illegible. (R. 465, 506) Upon completion of the audit process, Blue Cross issued a summary report stating that the review of Dr. Tsoutsouris' office records, in addition to the telephone conversation with Dr. Tsoutsouris, yielded a conclusion that his documentation was insufficient to substantiate a medical necessity behind his debridement claims. (R. 506) Furthermore, the Blue Cross summary report stated that Dr. Tsoutsouris' medical reports and subsequent clarifications failed to give any information regarding evidence of medical progress in his treatments, such as a description of the size or severity of the ulcers being treated, as required by the Medicare guidelines regarding the reasonableness and necessity of frequent foot-care treatments. (R. 26, 506, 587, 621) Accordingly, Blue Cross then calculated the overpayments that Dr. Tsoutsouris received from the fifteen claims, $798.94, extrapolated the result across the population from which the audit sample was chosen and requested a refund from Dr. Tsoutsouris for $3,035.82. (R. 506-07, 621)
After receiving Blue Cross' refund request, and timely paying the requested refund amount, Dr. Tsoutsouris requested that Medicare's Postpayment Medical Review review the refund determination. (R. 20, 498) The Medical Review affirmed the refund determination stating that, for purposes of establishing medically necessary services, all fifteen cases consisted of unacceptable documentation due to Dr. Tsoutsouris' illegible handwriting and frequent use of "as above." (R. 498) Dissatisfied with this review determination, Dr. Tsoutsouris then requested a hearing before a Medicare Hearing Officer to re-review the refund determination. (R. 501) After reviewing the audit results, the Blue Cross hearing officer determined that the standing refund determination was correct, with the exception of a minor $.15 adjustment, and noted that the lack of any notation as to the size, depth, or drainage of the foot ulcers at the initial treatment or throughout follow-up treatments made an assessment of the healing process impossible and undercut any attempt to show medical necessity. (R. 503) Dr. Tsoutsouris then requested a hearing before the ALJ. (R. 20)
The Medicare program is set forth in Title XVIII of the Social Security Act. 42 U.S.C. § 1395 et seq. The Secretary of Social Security administers the Medicare program, which is a federally funded health insurance program for eligible persons who are aged, disabled, or have end stage renal disease, through the Health Care Financing Administration (HCFA) of the United States Department of Health and Human Services. 42 U.S.C. § 1395 et seq. In administering Medicare, the Secretary contracts with private entities called "carriers," generally private insurance companies like Blue Cross, to aid in making determinations as to whether Medicare covers particular services. 42 U.S.C. § 1395u; see also 42 C.F.R. Pt. 421, Subpt. C.
The Medicare program is composed of two parts, Part A and Part B. Part B is of primary concern to this case. Part B is designed to function as a supplemental medical insurance program covering physicians' services, including Doctors of Podiatric medicine, and medical services not covered by Part A. 42 U.S.C. § 1395x(r), 42 U.S.C. § 1395j-1395w-4, 1395k, 1995x(s); 42 C.F.R. § 410.3.
Generally, Medicare limits its coverage to expenses which are reasonable and necessary for the diagnosis or treatment of illness or injury or to improve the functioning of a malformed body member. 42 U.S.C. § 1395y(a)(1)(A); 42 C.F.R. § 411.15(k). To aid Medicare participants and courts in interpreting the boundaries of what is "reasonable and necessary" for purposes of Medicare coverage, HCFA has issued a Medicare Part B Carriers Manual (MCM), a valuable resource embodying the agency's interpretation of its statute and, in accordance with Chevron, evoking considerable deference from this Court. Chevron v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984) (). The MCM has direct application to the issues presented in this case.
In addition to limitations on coverage, Medicare has requirements governing the payment of claims. In particular, Medicare Part B specifies that it will not make any payment to a provider of services unless the provider has furnished the necessary information to determine the amounts due. 42 U.S.C. § 13951(e); 42 C.F.R. § 424.5(a)(6). Furthermore, with reference to podiatrists' claims, the MCM requires carriers to identify when a course of therapy requires more follow-up visits then are standard for a particular modality of care; the modality at issue here being the debridement of foot ulcers in diabetic patients. MCM § 4120.1. The MCM specifies that unless documentation of special medical circumstances justifying the extra visits is presented to the carrier, the carrier is to deny payments for the excess visits. Id.
In a situation where Medicare has mistakenly overpaid a provider on behalf of an individual,...
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