MCCAMBRIDGE v. BURWELL

Filing 31

MEMORANDUM/OPINION THAT 1)MCCAMBRIGE WAS NOT AUTHORIZED TO RECEIVE PAYMENT UNDER THE MEDICARE STATUE DIRECTLY AS A NON-PHYSICIAN HEATH CARE PROVIDER; 2)THE SURGICAL ASSISTANT SERVICES FOR WHICH MCCAMBRIDGE BILLED MEDICARE ARE NOT COVERED AS INCIDENT TO A SURGEON'S SERVICES; AND 3) MCCAMBRIDGE IS NOT ENTITLED TO A WAIVER OF THE OVERPAYMENT ASSESSED AGAINST HIM; IS SUPPORTED BY SUBSTANTIAL EVIDENCE AND IN ACCORDANCE WITH THE LAW, ETC. THEREFORE THE COURT WILL GRANT THE SECRETARY'S MOTIO N FOR SUMMARY JUDGMENT AND DENY MCCAMBRIDGE'S MOTION FOR SUMMARY JUDGMENT. THE COURT ALSO DENIES MCCAMBRIDGE'S MOTION TO REMAND BECAUSE THE SECRETARY CORRECTLY INTERPRETED THE APPLICABLE MEDICARE STATUES AND REGULATIONS UPON WHICH IT BASED ITS DENIAL OF MEDICARE COVERAGE FOR MCCAMBRIDGE'S SERVICES. THE COURT FURTHER DENIES MCCAMBRIDGE'S REQUEST FOR APPOINTMENT OF COUNSEL AS THERE IS NO BASIS TO GRANT THE REQUEST. A SEPARATE ORDER FOLLOWS. SIGNED BY HONORABLE EDWARD G. SMITH ON 12/22/16. 12/22/16 ENTERED AND COPIES MAILED TO PRO SE' AND E-MAILED.(ky, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
PETER S. MCCAMBRIDGE,
Plaintiff,
v.
SYLVIA MATTHEWS BURWELL,
SECRETARY OF HEALTH AND
HUMAN SERVICES,
Defendant.

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CIVIL ACTION NO. 16-1148

MEMORANDUM OPINION
Smith, J.

December 22, 2016

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.

2

I.
A.

BACKGROUND

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).

3

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

1

If an ALJ does not does not issue a timely decision following the provider’s request for a hearing, the provider may
escalate his appeal directly to the MAC. 42 C.F.R. § 405.1104.
2
This DAB decision is not included in the administrative record. Nonetheless, the MAC’s January 6, 2016 decision,
which is presently before the court for review, cites the decision. See Administrative Record (“A.R.”) at 4-6.

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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

3

This DAB decision is also not included in the administrative record. Nonetheless, the MAC’s January 6, 2016
decision, which is presently before the court for review, cites the decision. See A.R. at 4-6.

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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
4

While the October 4, 2013 letter from the Medicare CMS contractor, SafeGuard Services, LLC, seeks
reimbursement of only $7,833.54, see A.R. at 96, McCambridge alleges that the Secretary demands reimbursement
of $8,700. Complaint without Jury Trial and Motion to Dismiss the Refund Request (“Complaint”) at 1, Doc. No. 1.

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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 US Attorney,” in which he sought “a 15-30 minute meeting with the US
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,

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Unfortunately, McCambridge failed to comply with the undersigned’s policies and procedures by not filing a
statement of undisputed material facts in support of his motion for summary judgment.

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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 crossmotions 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 Agreement.” Doc. No. 24. The court denied the motion
on August 15, 2016. 7 Doc. No. 25.
On August 19, 2016, McCambridge filed a motion seeking additional time – up to August
31, 2016 – to find counsel. 8 Doc. No. 26. On August 20, 2016, the Secretary filed a response to

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McCambridge did not file a response to the Secretary’s statement of undisputed material facts in support of her
motion for summary judgment.
7
It was unclear as to the precise stipulation that the plaintiff was seeking to enter into with the Secretary.
Regardless, the court denied the motion because the parties could enter into any stipulations with respect to the
undisputed facts without requiring court involvement.
8
McCambridge also posited two questions to the court, apparently seeking to have the court answer them.

8

McCambridge’s motion for summary judgment and motion to remand. Doc. No. 27. The court
granted McCambridge’s motion seeking additional time to try to obtain counsel on August 23,
2016. Doc. No. 28. On that same date, McCambridge filed a response to the Secretary’s motion
for summary judgment. Doc. No. 29. On August 31, 2016, McCambridge filed a motion for
appointment of counsel. Doc. No. 30.
The cross-motions for summary judgment, the motion to remand, and the motion for the
appointment of counsel are all ripe for disposition.
II.
A.

DISCUSSION

Standard – Motions for Summary Judgment

A district court “shall grant summary judgment if the movant shows that there is no
genuine issue as to any material fact and the movant is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(a). Additionally, “[s]ummary judgment is appropriate when ‘the pleadings,
depositions, answers to interrogatories, and admissions on file, together with the affidavits, if
any, show that there is no genuine issue as to any material fact and that the moving party is
entitled to a judgment as a matter of law.’” Wright v. Corning, 679 F.3d 101, 103 (3d Cir. 2012)
(quoting Orsatti v. New Jersey State Police, 71 F.3d 480, 482 (3d Cir. 1995)). An issue of fact is
“genuine” if “the evidence is such that a reasonable jury could return a verdict for the nonmoving
party.” Anderson v. Liberty Lobby, Inc. 477 U.S. 242, 248 (1986). A fact is “material” if it
“might affect the outcome of the suit under the governing law.” Id.
The party moving for summary judgment has the initial burden “of informing the district
court of the basis for its motion, and identifying those portions of the pleadings, depositions,
answers to interrogatories, and admissions on file, together with the affidavits, if any, which it
believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett,

9

477 U.S. 317, 323 (1986) (internal quotation marks omitted). Once the moving party has met
this burden, the non-moving party must counter with “‘specific facts showing that there is a
genuine issue for trial.’” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587
(1986) (citation omitted); see Fed. R. Civ. P. 56(c) (stating that “[a] party asserting that a fact . . .
is genuinely disputed must support the assertion by . . . citing to particular parts of materials in
the record . . .; or . . . [by] showing that the materials cited do not establish the absence . . . of a
genuine dispute”). The non-movant must show more than the “mere existence of a scintilla of
evidence” for elements on which the non-movant bears the burden of production. Anderson, 477
U.S. 242, 252 (1986). Bare assertions, conclusory allegations, or suspicions are insufficient to
defeat summary judgment. See Fireman’s Ins. Co. v. DuFresne, 676 F.2d 965, 969 (3d Cir.
1982) (indicating that a party opposing a motion for summary judgment may not “rely merely
upon bare assertions, conclusory allegations or suspicions”); Ridgewood Bd. of Educ. v. N.E. for
M.E., 172 F.3d 238, 252 (3d Cir. 1999) (explaining that “speculation and conclusory allegations”
do not satisfy non-moving party’s duty to “set forth specific facts showing that a genuine issue of
material fact exists and that a reasonable factfinder could rule in its favor.”). Additionally, the
non-moving party “cannot rely on unsupported allegations, but must go beyond pleadings and
provide some evidence that would show that there exists a genuine issue for trial.” Jones v.
United Parcel Serv., 214 F.3d 402, 407 (3d Cir. 2000). Moreover, arguments made in briefs “are
not evidence and cannot by themselves create a factual dispute sufficient to defeat a summary
judgment motion.” Jersey Cent. Power & Light Co. v. Township of Lacey, 772 F.2d 1103, 110910 (3d Cir. 1985).
The court “may not weigh the evidence or make credibility determinations.” Boyle v.
County of Allegheny, 139 F.3d 386, 393 (3d Cir. 1998) (citing Petruzzi’s IGA Supermarkets., Inc.

10

v. Darling–Del. Co. Inc., 998 F.2d 1224, 1230 (3d Cir. 1993)). Instead, “[w]hen considering
whether there exist genuine issues of material fact, the court is required to examine the evidence
of record in the light most favorable to the party opposing summary judgment, and resolve all
reasonable inferences in that party’s favor.” Wishkin v. Potter, 476 F.3d 180, 184 (3d Cir. 2007).
The court must decide “not whether . . . the evidence unmistakably favors one side or the other
but whether a fair-minded jury could return a verdict for the plaintiff on the evidence presented.”
Anderson, 477 U.S. at 252. “Where the record taken as a whole could not lead a rational trier of
fact to find for the non-moving party, there is no ‘genuine issue for trial’” and the court should
grant summary judgment in favor of the moving party. Matsushita Elec. Indus. Co., 475 U.S. at
587 (citation omitted).
The summary judgment standard is the same even when, as here, the parties have filed
cross-motions for summary judgment. Erbe v. Connecticut Gen. Life Ins. Co., No. CIV.A. 06113, 2009 WL 605836 at *1 (W.D. Pa. Mar. 9, 2009) (citing Transguard Ins. Co. of Am., Inc. v.
Hinchey, 464 F. Supp. 2d 425, 430 (M.D. Pa. 2006)). “When confronted with cross-motions for
summary judgment . . . ‘the court must rule on each party’s motion on an individual and separate
basis, determining, for each side, whether a judgment may be entered in accordance with the
summary judgment standard.’” Id. (citing Transguard, 464 F. Supp. 2d at 430).
B.

Standard and Scope of Review of the Secretary’s Decision

In evaluating the parties’ motions, the court must apply a deferential standard to the
review of the Secretary’s decision. Judicial review of an agency decision is governed by the
Administrative Procedures Act (“APA”). See Albert Einstein Med. Ctr. v. Sebelius, 566 F.3d
368, 372 (3d Cir. 2009) (citing 5 U.S.C. § 706; 42 U.S.C. § 1395oo(f)(1)). Pursuant to the APA,
the court “can set aside the [Secretary’s] decision only if it is unsupported by substantial

11

evidence, is arbitrary, capricious, an abuse of discretion, or [is] otherwise not in accordance with
law.” Id. at 372 (internal quotations and citation omitted). “Substantial evidence has been
defined as more than a mere scintilla; it means such relevant evidence as a reasonable mind
might accept as adequate.” Hagans v. Commissioner of Soc. Sec., 694 F.3d 287, 292 (3d Cir.
2012) (internal quotations and citation omitted). “Where the [Secretary’s] findings of fact are
supported by substantial evidence, we are bound by those findings, even if we would have
decided the factual inquiry differently.” Id. (internal quotations and citation omitted). “When
determining whether the [Secretary’s] decision is supported by substantial evidence, the [c]ourt
may look to any evidence in the record, regardless of whether the [Secretary] cites to it in [her]
decision.” Beckett v. Leavitt, 555 F. Supp. 2d 521, 526 (E.D. Pa. 2008) (citation omitted).
“The scope of review under the arbitrary and capricious standard is narrow, and a court is
not to substitute its judgment for that of the agency.” CBS Corp. v. F.C.C., 663 F.3d 122, 137
(3d Cir. 2011) (internal quotations and citation omitted). “Nevertheless, the agency must reach
its decision by examin[ing] the relevant data, and it must articulate a satisfactory explanation for
its action[,] including a rational connection between the facts found and the choice made.” Id.
(internal quotations and citation omitted).

C.

The Secretary’s Motion for Summary Judgment

In the Secretary’s motion for summary judgment, the Secretary seeks affirmation of her
decisions that: (1) McCambridge was not authorized to receive direct payment under the
Medicare statute as a non-physician practitioner because he is not a qualified, licensed health
care provider; (2) the services for which McCambridge billed Medicare are not payable as

12

incident to a surgeon’s services; and (3) McCambridge is not entitled to a waiver of the assessed
overpayment. The court will review each decision in turn.
The Secretary’s first conclusion, that McCambridge was not authorized to receive
payment under the Medicare statute for the surgical assistant services he provided as a nonphysician healthcare provider, is supported by substantial evidence and in accordance with the
law. In support of her conclusion, the Secretary identified sections 1861(s)(2)(K), 1832, and
1833 of the Act, and the Medicare regulations implementing them, as enumerating the nonphysician practitioner services covered by Medicare, and determined that they do not apply to
the services McCambridge provided. A.R. at 9-11.
Section 1861(s)(2)(K) of the Act identifies services performed by physician assistants,
nurse practitioners, and clinical nurse specialists that are covered by Medicare. 42 U.S.C. §
1395x(s)(2)(K).

McCambridge describes his professional occupation as a “surgical first

assistant” based on a course he completed with the “National Institute of First Assisting.” In re:
Peter McCambridge, C.F.A., DAB No. 2290, 2009 WL 5227273 at *2 (H.H.S. Dec. 17, 2009).
Crucially, McCambridge does not claim to be a physician assistant, nurse practitioner, or clinical
nurse specialist.

Therefore, section 1861(s)(2)(K) of the Act does not provide Medicare

coverage for McCambridge’s services because as a surgical first assistant (and not a physician
assistant, nurse practitioner, or clinical nurse specialist) the section does not apply to him.
Section 1832 also identifies services covered by Medicare, but does not identify the
services of a surgical first assistant or any similar service. 42 U.S.C. § 1395k. Section 1833,
which describes payment for services covered by Medicare, does not include the services of a
surgical first assistant, and the closest similar service it includes is a reference to section
1861(s)(2)(K), which, as explained above, does not apply to McCambridge’s surgical assistant

13

services. 42 U.S.C. § 1395l. The Medicare regulations implementing sections 1832 and 1833 of
the Act also do not describe the services of a surgical first assistant or any similar service. 42
C.F.R. §§ 410.59, 410.60, 410.62, 410.74, 410.75, 410.76. Therefore, sections 1832 and 1833 of
the Act, and the Medicare regulations implementing them, do not provide coverage for
McCambridge’s services because they do not provide coverage for the services of a surgical first
assistant.
The Secretary’s second conclusion—that the Medicare statute and regulations do not
permit payment for McCambridge’s services as incident to a physician’s (or surgeon’s)
services—is also supported by substantial evidence and in accordance with the law. In support
of her conclusion, the Secretary explained that McCambridge’s services: (1) are not the kind of
services commonly furnished in a physician’s office; (2) were not included in the physicians’
bills, as McCambridge billed for them separately; and (3) are not described in the Medicare
statute and regulations as a covered service. A.R. at 12.
The Secretary appropriately identified section 410.10(b) of the Medicare regulations as
defining the services that are covered by Medicare as incident to a physician’s services. A.R. at
12. In relevant part, section 410.10(b) defines services incident to a physician’s services as:
“Services and supplies furnished incident to a physician’s professional services, of kinds that are
commonly furnished in physicians’ offices and are commonly either furnished without charge or
included in the physicians’ bills.” 42 C.F.R. § 410.10(b). McCambridge’s surgical assistant
services do not qualify under section 410.10(b) because he furnished them in a hospital, in the
course of inpatient surgery (not in a physician’s office). A.R. at 32, 175-229. Furthermore, the
Secretary correctly found that McCambridge’s surgical assistant services were not included in
the physicians’ bills, as McCambridge billed for them separately. A.R. at 95-96, 625-72. Lastly,

14

as explained above, the Secretary properly concluded that McCambridge’s surgical assistant
services are not described in the Medicare statute and regulations as a covered service. 42
U.S.C. §§ 1395k; 1395l; 1395x(s)(2)(K); 42 C.F.R. §§ 410.59, 410.60, 410.62, 410.74, 410.75,
410.76.
The Secretary also properly rejected McCambridge’s argument that he should receive
Medicare payment for his surgical assistant services based on the fact that the payments made to
him did not duplicate payments already made to a physician. A.R. at 13. In this regard, the
Secretary concluded that whether McCambridge’s surgical assistant services duplicated
payments already made to a physician was not relevant, as there is no basis in the Medicare
statute and regulations for covering McCambridge’s surgical assistant services—regardless of
whether (and in what manner) the physicians who performed the surgery were paid. A.R. at 13.
Finally, the Secretary’s third conclusion—that McCambridge was not without fault when
he billed Medicare, did not disclose all material facts and furnish accurate information when he
billed Medicare, and was not entitled to a waiver of recoupment for the overpayment—is
supported by substantial evidence and in accordance with the law.
In reaching the third conclusion, the Secretary properly identified section 1870(b) of the
Act and the Medicare Financial Management Manual (“MFMM”) as governing the recoupment
of Medicare overpayments from providers. A.R. at 13-14. Section 1870(b) of the Act waives
recoupment of a Medicare overpayment if the provider was without fault.

42 U.S.C. §

1395gg(b). The MFMM provides that a supplier is without fault if the supplier exercised
reasonable care in billing for and accepting payment. Pub. 100-6, MFMM, Chapter 3, § 90. The
MFMM defines reasonable care in billing for and accepting payment as: (1) “[making] full
disclosure of all material facts;” and (2) “on the basis of information available to it, including,

15

but not limited to, the Medicare instructions and regulations, [having] a reasonable basis for
assuming that the payment was correct[.]” Id.
Substantial evidence supports the Secretary’s conclusion that McCambridge failed to
disclose all material facts when he billed Medicare for his surgical assistant services. A.R. at 14.
When McCambridge billed for his services, he listed the NPI of a physician (rather than his own
NPI) as the rendering provider number and sought payment on that basis. A.R. at 625-72.
Furthermore, McCambridge listed a modifying code (“80”) for each of the services, which is
used to represent that a physician served as the surgical assistant, when a physician was not the
surgical assistant, as McCambridge is not a physician. A.R. at 688-799.
Substantial evidence also supports the Secretary’s conclusion that McCambridge did not
have a reasonable basis for assuming that the payment was correct. A.R. at 14. Prior to billing
for the surgical first assistant services at issue in this case, McCambridge had sought Medicare
enrollment as a non-physician practitioner (using the title, surgical first assistant). In re: Peter
McCambridge, C.F.A., DAB No. 2290, 2009 WL 5227273 at *2 (H.H.S. Dec. 17, 2009). When
McCambridge’s Medicare enrollment was denied because he did not meet the Medicare
enrollment and related Part B coverage requirements, he pursued multiple levels of
administrative appeals. Id. McCambridge’s appeals culminated in an appeal to the DAB, which
issued a final agency decision in December 2009, informing him that Medicare did not cover the
surgical assistant services he sought to provide to Medicare beneficiaries. Id. at *1. This
decision provided McCambridge with actual knowledge that he could not bill for his surgical
first assistant services. Therefore, McCambridge had no reasonable basis for assuming that
payment was correct.
D.

McCambridge’s Motion for Summary Judgment and Motion to Remand

16

The court is cognizant of the duty to liberally construe documents filed pro se, and that
McCambridge is litigating this matter without counsel. See Erickson v. Pardus, 551 U.S. 89, 94
(2007). Nonetheless, the court finds McCambridge’s motion for summary judgment and motion
to remand exceedingly difficult to evaluate, as they make legal arguments in isolation without
identifying what parts of the Secretary’s decision are being challenged, and fail to explain why
the Secretary should have relied on the authority that McCambridge purports to support his
position. See Plaintiff’s Motion for Summary Judgment (“Pl.’s MSJ”), Doc. No. 16; Plaintiff’s
Motion to Remand (“Pl.’s Mot. to Remand”), Doc. No. 20; Plaintiff’s Memorandum of Law in
Support of Plaintiff’s Motion for Remand (“Pl.’s Mem.”), Doc. No. 20. 9
The court construes the following arguments from McCambridge’s motion for summary
judgment.

First, McCambridge argues that the payments at issue in this matter were not

duplicate claims because he used the modifier “80” at the end of the surgeon’s NPI on the bills
that he submitted to Medicare. Pl.’s MSJ at 1. Second, McCambridge claims that he has a
“formal reassignment form 855R” with the surgeons, which he contends permits him to use the
surgeon’s NPI for billing Medicare claims. Id. at 3. Third, McCambridge argues that the initial
reason why a Medicare contractor requested a refund from him was that the Medicare contractor
improperly believed the services for which McCambridge billed Medicare were duplicate claims,
so the refund request is without merit. Id. at 4-5. Finally, McCambridge contends that the
Secretary’s review of his claim should have been limited to only the Medicare contractor’s initial
reason for the refund request—whether the services he billed for were duplicate claims. Id. at 8.
Based on this contention, McCambridge argues that the Secretary should not have considered
“enrollment issues for surgical first assistants” and “incident-to billing”—the very factors upon
9

McCambridge’s motion to remand and memorandum of law in support thereof were filed as a single continuous
document with no page or paragraph numbers. The court’s references to specific pages are based on page numbers
that appear in electronic filing system headers.

17

which the Secretary based her denial of Medicare coverage for McCambridge’s services. Id.;
Complaint at 2.
The Secretary addressed McCambridge’s duplicate claims argument in her decision, and
concluded that the argument was not relevant, as her decision that Medicare did not cover his
surgical assistant services was not based on whether his claims were duplicate claims. A.R. at
13.

Instead, the Secretary’s decision was based on the Medicare statute and regulations

providing no basis for covering McCambridge’s services—as either the services of a nonphysician health care provider, or as services provided incident to a physician’s services—
regardless of whether (and in what manner) the physicians who performed the underlying
surgery were paid. A.R. at 9-13. The court finds that the Secretary’s decision is supported by
substantial evidence and in accordance with the law, and therefore rejects McCambridge’s
duplicate claims argument.
McCambridge’s argument—that the Secretary should not have considered anything
beyond whether the services he billed for were duplicate claims—ignores the standard of review
that the MAC applies when reviewing lower-level appellate decisions. As the Third Circuit
explains: “Although MAC is limited to considering only the record before it, its review of the
ALJ’s findings is de novo and MAC is not obligated to defer to the outcomes of prior decisions
below.” John Balko & Associates, Inc., 555 F. App’x at 193 (3d Cir. 2014) (internal quotations
and citation omitted). The MAC was permitted to review all evidence contained in the record
and make its decision accordingly. Because the court finds that the Secretary properly rejected
McCambridge’s duplicate claims argument, and properly considered whether his services—
either provided by a surgical first assistant or incident to a physician’s services—were covered
by Medicare, the court will deny McCambridge’s motion for summary judgment.

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Regarding McCambridge’s motion to remand, the court finds the motion and the
supporting memorandum to be disjointed and unfocused. McCambridge’s arguments do not
identify specific parts of the Secretary’s decision challenged, or any legal or factual errors made
by the Secretary. See generally Pl.’s Mot. to Remand; Pl.’s Mem. By way of example, in his
motion to remand, McCambridge challenges the Secretary’s conclusion that he was not
permitted to bill for his surgical assistant services as incident to a physician’s services, and cites
to “FR VOL 66 page 55267 & 55268” and “section 4541(b) of the Balanced Budget Act.” Pl.’s
Mot. to Remand at 2. However, McCambridge fails to identify or explain how the pages from
the Federal Register and section from the Balanced Budget Act challenge the Secretary’s
decision. Furthermore, in McCambridge’s supporting memorandum of law he cites statutes,
regulations, pages from the Federal Register, and chapters from the CMS manual, but does not
explain how or why the Secretary should have followed them instead of the law cited by the
Secretary in her decision. Pl.’s Mem. at 6-13.
To the extent that McCambridge challenges the Secretary’s interpretation of the Medicare
statutes upon which she based her denial of Medicare coverage for his services, the court applies
the Chevron test. See Chevron, U.S.A., Inc. v. National Res. Def. Council, Inc., 467 U.S. 837,
842–43 (1984). “Under Chevron, we first must determine if Congress has spoken directly to the
question at issue, and if Congress’ intent is clear, our inquiry ends as we must give effect to the
unambiguously expressed intent of Congress.” Mercy Home Health v. Leavitt, 436 F.3d 370,
377 (3d Cir. 2006) (citing Chevron, 467 U.S. at 842–43 (internal quotations omitted)). “If we
decide that Congress has not spoken directly to the issue and the statute is silent or ambiguous
with respect to the specific issue, we must ask whether the agency’s interpretation is based on a
permissible construction of the statute.” Id. (internal quotations and citation omitted). “If we

19

find that it is, we afford deference to that interpretation.” Id. (internal quotations and citation
omitted).
Here, sections 1861(s)(2)(K), 1832, and 1833 of the Act—which the Secretary cited in
support of her conclusion that McCambridge could not bill Medicare directly as a non-physician
health care provider or as incident to a physician’s services—are clear and unambiguous. The
statutes expressly list the non-physician health care providers and services they perform that are
covered by Medicare, and a surgical first assistant is simply not listed.

42 U.S.C. §§

1395x(s)(2)(K), 1395k, 1395l. Because the court finds that the statutes directly address the issue
of whether McCambridge could bill Medicare directly as a surgical first assistant or for his
services as incident to a physician’s services, and that the statutes clearly do not permit
McCambridge to bill for his services, the court need not continue to the second part of the test.
Nevertheless, with respect to the Secretary’s interpretation of section 410.10(b) of the
Medicare regulations as it relates to billing for services provided incident to a physician’s
services, the court “must afford substantial deference to an agency’s interpretation of its own
regulations.”
omitted).

Albert Einstein Med. Ctr., 566 F.3d at 373 (internal quotation and citation

Indeed, the Third Circuit has noted that “[t]his broad deference is particularly

appropriate in contexts that involve a complex and highly technical regulatory program, such as
Medicare, which requires significant expertise and entail[s] the exercise of judgment grounded in
policy concerns.” Id. (internal quotation and citation omitted). The court finds the Secretary’s
interpretation of section 410.10(b) of the Medicare regulations—that Medicare does not cover
surgical assistant services provided in a hospital setting during surgery as incident to a
physician’s services—in accordance with the law, as section 410.10(b) defines services incident
to a physician’s services as: “Services and supplies furnished incident to a physician’s

20

professional services, of kinds that are commonly furnished in physicians’ offices and are
commonly either furnished without charge or included in the physicians’ bills.” 42 C.F.R. §
410.10(b). Based on the court’s difficulty evaluating McCambridge’s arguments (due to the
manner in which he presented them), and the court’s conclusion that the Secretary’s
interpretation of the Medicare statutes and regulations is in accordance with the law, the court
will also deny the motion to remand.
E.

McCambridge’s Request for Appointment of Counsel

McCambridge also argues that he is entitled to court-appointed counsel pursuant to 42
U.S.C. 2000e-5. Plaintiff’s Request for Appointment of Attorney (“Pl.’s Request”), Doc. No. 30.
The authority McCambridge references, 42 U.S.C. 2000e-5, applies only to matters involving
violations of Title VII of the Civil Rights Act of 1964, and is of no relevance here, as
McCambridge has asserted no Title VII violations. 42 U.S.C. § 2000e, et seq. Recognizing that
McCambridge’s request has been filed pro se, the court will consider whether any other authority
supports granting his request.
Civil litigants do not have a constitutional right to counsel, and the laws under which
McCambridge brings this action do not provide statutory authorization for courts to appoint
counsel. Parham v. Johnson, 126 F.3d 454, 456 (3d Cir. 1997) (citation omitted); 42 U.S.C. §§
405(g), 1395ff(b). Pursuant to 28 U.S.C. § 1915(e)(1), “[a] court may request an attorney to
represent any person unable to employ counsel.” Parham v. Johnson, 126 F.3d at 457 (3d Cir.
1997) (quoting Tabron v. Grace, 6 F.3d 147, 153 (3d Cir. 1993)). However, the Third Circuit
has directed courts to “exercise care in appointing counsel because volunteer lawyer time is a
precious commodity and should not be wasted on frivolous cases.”

Id. (citation omitted).

Therefore, a court should appoint counsel only when cases “have some merit in fact and law.”

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Id. (citation omitted). If the plaintiff’s claim has merit, then the Third Circuit has suggested that
the following factors serve as a guidepost to courts in determining whether to employ counsel:
(1) the plaintiff's ability to present his or her own case;
(2) the complexity of the legal issues;
(3) the degree to which factual investigation will be necessary and the ability of
the plaintiff to pursue such investigation;
(4) the amount a case is likely to turn on credibility determinations;
(5) whether the case will require the testimony of expert witnesses;
(6) whether the plaintiff can attain and afford counsel on his own behalf.
Id. (citation omitted). Without conducting an in-depth analysis of the factors—as the court does
not deem it necessary under these facts—two factors dominate the court’s decision to deny
McCambridge’s request for appointed counsel. First, the court determines that McCambridge’s
underlying claim does not have merit, and concludes that summary judgment in favor of the
Secretary (and against McCambridge) is appropriate in the matter underlying this request for
counsel. Second, McCambridge is able to pay for an attorney, and has indicated this in his
request, stating: “I am able to pay for an attorney, provided that they[sic] only review the record,
and the refund request. I do not want to pay for an attorney to tell me I am not a practitioner who
can bill Medicare directly.” Pl.’s Request at ¶ 2. It appears that rather than being unable to
afford an attorney, McCambridge simply does not want to pay for one. For these reasons, the
court will deny McCambridge’s request for appointment of counsel.
III.

CONCLUSION

After reviewing the cross-motions for summary judgment, McCambridge’s motion to
remand, McCambridge’s request for appointment of counsel, the administrative record, and the
Secretary’s decision, the court finds the Secretary’s conclusions that: (1) McCambridge was not
authorized to receive payment under the Medicare statute directly as a non-physician health care
provider; (2) the surgical assistant services for which McCambridge billed Medicare are not

22

covered as incident to a surgeon’s services; and (3) McCambridge is not entitled to a waiver of
the overpayment assessed against him; is supported by substantial evidence and in accordance
with the law. Furthermore, the court finds McCambridge’s arguments regarding duplicate claims
and the MAC’s allegedly improper consideration of evidence beyond whether his claims were
duplicate claims unavailing. Therefore, the court will grant the Secretary’s motion for summary
judgment and deny McCambridge’s motion for summary judgment.
The court also denies McCambridge’s motion to remand because the Secretary correctly
interpreted the applicable Medicare statutes and regulations upon which it based its denial of
Medicare coverage for McCambridge’s services.

The court further denies McCambridge’s

request for appointment of counsel as there is no basis to grant the request.
A separate order follows.

BY THE COURT:

/s/ Edward G. Smith
EDWARD G. SMITH, J.

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