Salko v. Sebelius
Filing
27
MEMORANDUM and ORDER denying 14 Pltf's Motion for Summary and GRANTING Dft Kathleen Sebelius's motion for summary judgment; Clerk of Court is directed to enter judgment in favor of the defendant and CLOSE this case.Signed by Honorable James M. Munley on 2/19/13 (sm)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
GREGORY J. SALKO, M.D.,
Plaintiff
:
No. 3:12cv515
:
:
(Judge Munley)
v.
:
:
KATHLEEN SEBELIUS, in her
:
official capacity as Secretary of the :
U.S. Department of Health and
:
Human Services,
:
Defendant
:
::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::
MEMORANDUM
Defendant Kathleen Sebelius, in her official capacity as Secretary of
U.S. Department of Health and Human Services, has excluded Plaintiff
Gregory J. Salko, M.D. from participating in Medicare and other federally
funded health care programs for a period of five years. Plaintiff now
appeals that decision. Before the court for disposition are cross-motions
for summary judgment. The parties have briefed their respective positions
and the motions are ripe for disposition.
Background
The general background facts in the instant case are not in dispute.
Plaintiff is a licensed physician residing in Lackawanna County,
Pennsylvania. (Doc. 1, Compl. ¶ 3). On June 30, 2009, plaintiff pled guilty
to two criminal charges in the United States District Court for the Middle
District of Pennsylvania. The charges were: 1) violation of 42 U.S.C. §
1
1320-7b(a)(2)(ii), that while not presenting or causing to be presented any
claim for payment by any federal healthcare program for the patient
encounter, he knowingly and willfully caused to be made a false
representation of a material fact for use in determining rights to such
benefits by Medicare; and 2) violation of 42 U.S.C. § 1302d-6(a)(2),
knowingly obtaining and causing the unlawful disclosure of protected
health information of a patient. (Id. ¶ 5).
Section 1128(a)(1) of the Social Security Act mandates the exclusion
of anyone from participating in Medicare or Medicaid if he is convicted of a
criminal offense related to the delivery of an item or service under
Medicare or Medicaid. 42 U.S.C. § 1320a-7. In pertinent part, section
1128(a)(1) provides:
Exclusion of certain individuals and entities
from participation in Medicare and State health
care programs
(a) Mandatory exclusion
The Secretary shall exclude the following
individuals and entities from participation in any
Federal health care program (as defined in section
1320a-7b(f) of this title):
(1) Conviction of program-related crimes
Any individual or entity that has been convicted of a
criminal offense related to the delivery of an item or
service under subchapter XVIII of this chapter or
under any State health care program.
42 U.S.C. § 1320a-7.
The Inspector General of the Health and Human Services
Department (hereinafter “the IG”) determined that plaintiff had been
convicted of a criminal offense relating to the delivery of an item or service
2
under Medicare or Medicaid program. Accordingly, in May 2011, the IG
excluded plaintiff from participating in Medicare or other federally funded
health care programs for five years. (Administrative Record (hereinafter
“R.”) at 137-138). Plaintiff appealed this determination to the Department
of Health and Human Services Departmental Appeals Board Civil
Remedies Division (hereinafter “DAB”). The DAB sustained the IG’s
decision to exclude plaintiff. (R. at 1-12). Plaintiff appealed the DAB
decision to this court by filing a complaint on March 31, 2012. (Doc. 1,
Compl.). After a period of discovery, the parties filed cross-motions for
summary judgment bringing the case to its present posture.
Jurisdiction
We have jurisdiction to review final decisions of the Secretary of the
U.S. Department of Health and Human Services. 42 U.S.C. § 1320a-7(f)
(incorporating 42 U.S.C. § 405(g) (“Any individual, after any final decision
of the Commissioner of Social Security made after a hearing to which he
was a party, irrespective of the amount in controversy, may obtain a review
of such decision by a civil action commenced within sixty days after the
mailing to him of notice of such decision or within such further time as the
Commissioner of Social Security may allow. Such action shall be brought
in the district court of the United States for the judicial district in which the
plaintiff resides[.]”) Such a decision is “final” when it is heard by an
administrative law judge and reviewed by the Civil Remedies Division of
the Departmental Appeals Board for the Department of Health and Human
Services. The DAB’s decision is the final decision of the Secretary for
purposes of judicial review. 42 U.S.C. §§ 405(g), 1320a-7(f)(1).
3
Standard of review
As noted above, the parties have filed cross-motions for summary
judgment. Granting summary judgment is proper “‘if 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 judgment as a matter
of law.’” Knabe v. Boury, 114 F.3d 407, 410 n.4 (3d Cir. 1997) (quoting
FED. R. CIV. P. 56(c)). “[T]his standard provides that the mere existence of
some alleged factual dispute between the parties will not defeat an
otherwise properly supported motion for summary judgment; the
requirement is that there be no genuine issue of material fact.” Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986) (emphasis in original).
In considering a motion for summary judgment, the court must
examine the facts in the light most favorable to the party opposing the
motion. Int’l Raw Materials, Ltd. v. Stauffer Chem. Co., 898 F.2d 946, 949
(3d Cir. 1990). The burden is on the moving party to demonstrate that the
evidence is such that a reasonable jury could not return a verdict for the
non-moving party. Anderson, 477 U.S. at 248. A fact is material when it
might affect the outcome of the suit under the governing law. Id. Where
the non-moving party will bear the burden of proof at trial, the party moving
for summary judgment may meet its burden by showing that the evidentiary
materials of record, if reduced to admissible evidence, would be insufficient
to carry the non-movant's burden of proof at trial. Celotex v. Catrett, 477
U.S. 317, 322 (1986). Once the moving party satisfies its burden, the
burden shifts to the nonmoving party, who must go beyond its pleadings,
and designate specific facts by the use of affidavits, depositions,
4
admissions, or answers to interrogatories showing that there is a genuine
issue for trial. Id. at 324.
Discussion
Plaintiff appeals his exclusion from Medicare and other federally
funded health care programs. We review the defendant’s decision as
follows: We must determine whether defendant’s findings of fact are
supported by substantial evidence. 42 U.S.C. § 405. The “substantial
evidence” standard is deferential. Substantial evidence “does not mean a
large or considerable amount of evidence, but ‘rather such relevant
evidence as a reasonable mind might accept as adequate to support a
conclusion.’” Pierce v. Underwood, 487 U.S. 552, 565 (1988) (quoting
Consolidated Edison Co. v. N.L.R.B., 305 U.S. 197, 229 (1938)); Johnson
v. Comm’r of Soc. Sec., 529 F.3d 198, 200 (3d Cir. 2008); Hartranft v.
Apfel, 181 F.3d 358, 360 (3d Cir. 1999). Substantial evidence has been
described as more than a mere scintilla of evidence but less than a
preponderance. Brown v. Bowen, 845 F.2d 1211, 1213 (3d Cir. 1988). In
an adequately developed factual record substantial evidence may be
"something less than the weight of the evidence, and the possibility of
drawing two inconsistent conclusions from the evidence does not prevent
an administrative agency's finding from being supported by substantial
evidence." Consolo v. Fed. Maritime Comm’n, 383 U.S. 607, 620 (1966).
With regard to legal questions and interpretations of law, we are not
bound by the defendant’s conclusions. Rather, we must determine if the
defendant applied the correct legal standard. In other words, we have
plenary review of all legal issues decided by the Commissioner. See
Poulos v. Comm’r of Soc. Sec., 474 F.3d 88, 91 (3d Cir. 2007); Schaudeck
5
v. Comm’r of Soc. Sec. Admin., 181 F.3d 429, 431 (3d Cir. 1999);
Krysztoforski v. Chater, 55 F.3d 857, 858 (3d Cir. 1995).
The plaintiff raises four issues in his appeal. They are as follows:
1) He was not convicted of a crime “related to” the delivery of an item or
service under Medicare or Medicaid; therefore, he is not subject to
mandatory exclusion; 2) the defendant’s decision to exclude him is
inconsistent with her prior determination that he was an eligible provider in
the Medicare Program after his conviction; 3) He was not provided “fair
notice” of the defendant’s position because it was adopted for the first time
in this enforcement proceeding; and 4) the decision must be set aside as
arbitrary and capricious. We will address these issues separately.
1) Crimes “related to” the delivery of an item or service under
Medicare or Medicaid
The defendant has excluded plaintiff from participation in Medicare
under 42 U.S.C. § 1320a-7(a)(1). This section mandates the exclusion of
an individual who has been convicted of a criminal offense “related to” the
delivery of an item or service under Medicare. Plaintiff does not contest
that he was convicted of a criminal offense. Rather, he argues that his
criminal act was not “related to” delivery of an item or service under
Medicare.1
Our standard of review is to determine if the Secretary’s final
decision is based on substantial evidence. The Secretary found that
plaintiff essentially admitted that the offense was “related to” the delivery
of an item or service, as required for a mandatory exclusion. (R. at 7). In
its brief to the DAB the IG stated that petitioner did not appeal the ALJ’s
finding that the conviction was related to the delivery of an item or service
under Medicare. (R. at 7 n.3). Plaintiff did not dispute this characterization
of his position and did not request the opportunity to submit a brief to
1
6
Plaintiff was convicted under 42 U.S.C. § 1320a-7b(a)(2), which
makes it a crime to “knowingly and willfully make[] or cause[] to be made
any false statement or representation of a material fact for use in
determining rights” benefit or payment under a federal health care
program. Two subsections follow in the statute relating to the classification
of the crime as either a felony or a misdemeanor. It is a felony under
subsection (i) where the “statement, representation, concealment, failure,
or conversion” is “in connection with the furnishing (by that person) of items
or services for which payment is or may be made under the program.” It is
a misdemeanor under subsection (ii) where the statement or
representation is made “by any other person.”
The parties agree that plaintiff falls under subsection (ii), the
misdemeanor section. Plaintiff argues that his statement was not made by
a person in connection with the furnishing of items or services for which
payment is or may be made under Medicare. Accordingly, since it was not
made by a person “in connection” with the furnishing of items or services, it
is therefore not “related to” the delivery of an item or service under
Medicare. As it is not so related, then the mandatory exclusion does not
apply. After a careful review, we disagree with the plaintiff.
Our review of an agency’s construction of a statute that it administers
is governed by the standards set forth in Chevron, USA, Inc. v. Am. Iron &
dispute it. (Id.) The Secretary thus decided this issue on the facts of the
underlying conviction and because the plaintiff failed to dispute the IG’s
position. A determination based on undisputed facts and undisputed
argument is based on substantial evidence. We could end our analysis of
this issue here, but for purposes of completeness we address the issues
that plaintiff now raises that he did not raise before the DAB.
7
Steel Inst., et al., 467 U.S. 837 (1984). A two-step review procedure is
used in such situations. First, where the intent of Congress is clear from
the statute, we must ensure that the agency gave “effect to the
unambiguously expressed intent of Congress.” Id. at 842-43. Where
“however, the court determines Congress has not directly addressed the
precise question at issue, the court does not simply impose its own
construction on the statute . . . . Rather, if the statute is silent or
ambiguous with respect to the specific issue, the question for the court is
whether the agency’s answer is based on a permissible construction of the
statute.” Id. at 843. In other words, in such instances the court must
determine whether the agency’s view is reasonable. Id. at 845.
Under this analysis, we first apply step one and “examine the
statutory language to determine whether Congress has directly spoken to
the issue; if it has, we do not even proceed to step two.” Elizabeth
Blackwell Health Ctr. for Women v. Knoll, 61 F.3d 170, 186 (3d Cir. 1995).
Under the second step, where the statute is silent or ambiguous, we
provide strong deference to the agency and determine whether the
agency’s interpretation is reasonable, “not necessarily the only possible
interpretation, nor even the interpretation deemed most reasonable by the
courts.” Entergy Corp. v. Riverkeeper, Inc., 556 U.S. 208, 218 (2009).
The general rule of deference is inapplicable in some cases. For example,
deference is not provided where the agency’s interpretation of the statute
is “plainly erroneous or inconsistent with the regulation.” Chirstopher v.
Smithkline Beecham Corp., - - U.S. - - ; 132 S.Ct. 2156, 2166 (2012)
(quoting Chase Bank USA, N.A. v. McCoy, 562 U.S. - - , 131 S.Ct. 871,
880 (2011)). Additionally, we do not provide deference where the
8
agency’s interpretation of the statute
does not reflect the agency’s fair and considered
judgment on the matter in question. This might
occur when the agency’s interpretation conflicts
with a prior interpretation or when it appears that
the interpretation is nothing more than a convenient
litigating position, or a post hoc rationalization
advanced by an agency seeking to defend past
agency action against attack.
Id. (internal citations, quotation marks and editing marks omitted).
Generally, the intent of the statute is clear and unambiguous. The
secretary’s interpretation of the statute is not plainly erroneous or
inconsistent with the regulation. Congress seeks to prevent those making
false statements related to Medicare payments in federal health care
programs. The issue plaintiff presents is whether his criminal offense is
“related to” the delivery of a Medicare service. The term “related to” is not
defined in the statute. When a term is not defined in a statute, we must
examine its ordinary meaning. Mohamad v. Palestinian Auth., - - U.S. - - ,
132 S.Ct. 1702, 1706-07 (2012). “The term ‘relate’ means ‘to show or
establish a logical or causal connection between.’” Bobb v. Atty. Gen. of
U.S., 458 F.3d 213, 219 (3d Cir. 2006) (quoting WEBSTER’S THIRD NEW
INTERNATIONAL DICTIONARY (UNABRIDGED) 1916 (1991)). The term “relate
to” is generally broad and expansive. McGurl v. Trucking Emps. of N.J.
Welfare Fund, Inc., 124 F.3d 471, 481 (3d Cir. 1997) (explaining the broad
scope of ERISA based on in part on the use of the term “relate to”). As
explained by the Supreme Court, “relating to” has an ordinary meaning
which “is a broad - one ‘to stand in some relation; to have bearing or
concern; to pertain; refer; to bring into association with or connection with.’”
Morales v. Trans World Airlines, Inc., 504 U.S. 374, 383 (1992) (quoting
BLACK’S LAW DICTIONARY 1158 (5th Ed. 1979)). The Supreme Court has
9
further explained that “[t]he phrase ‘relate to’ [has a] broad common-sense
meaning” thus a statutory provision using that phrase has “broad scope.”
Metro. Life Ins. Co. v. Massachusetts, 471 U.S. 724, 739 (1985).
To analyze the issue of whether plaintiff’s offense is related to the
delivery of an item or service under Medicare, it is necessary to examine
his conviction. He was convicted of making a “false statement.” The false
statement was described at his guilty plea hearing by the Assistant United
States Attorney as follows:
Dr. Salko was practicing medicine in Carbondale,
Pennsylvania. And one of his Medicare patients
was a woman by the name of Patient X. At least
that’s the name that we’ve used to identify this
individual in both the indictment and this
information. Patient X was a resident of an
assisted living facility, Highland Manor. And in May
of 2005 she decided to replace Dr. Salko with
another doctor. That change took place.
However, in July of 2005 Dr. Salko prepared
another progress note for Patient X. A progress
note which is marked as Government’s Exhibit No.
10. That progress note represented that Mr. Salko - that Dr. Salko had physically examined Patient X’s
upper and lower limbs. And these allegations are
spelled out specifically in our information.
The government’s proof would be that that progress
note is false. That after it was prepared Dr. Salko
signed it with knowledge of its falsity. And that the
examination as specified did not in fact take place.
We note, however, as does the information, that
this particular medical service that Dr. Salko
represented to have provided Patient X was never
submitted to Medicare for payment. There was no
claim made for this particular service.
R. at 171-72.
10
Thus, plaintiff pled guilty to drafting a false progress note. 2 The ALJ
correctly focused on the crime plaintiff committed. It contained two
elements: (1) making a false statement and (2) making that statement for
use in determining rights to a benefit or payment under Medicare. The
ALJ reasoned that “Petitioner would not have committed the crime for
which he was charged and pled guilty to had he not provided care to a
Medicare beneficiary and then made a material misrepresentation of fact
about that care for use in determining rights to a Medicare benefit or
payment.” (R. at 2-3). A statement made for use in determining rights to
Medicare benefits or payment is necessarily related to the delivery of a
Medicare benefit. Thus, plaintiff falls under the mandatory exclusion. The
DAB similarly concluded that plaintiff’s crime was related to the delivery of
a service. They found as follows: “[Plaintiff], through his guilty plea,
admitted that he made his misrepresentation for the purpose of
determining rights to a benefit or a payment under the Medicare program,
and the care that [plaintiff] alleged that he provided to a Medicare
beneficiary was the essence of [plaintiff’s] crime.” (R. at 7) (internal
quotation marks & citation omitted). We find that this is a reasonable
analysis of the issue.
Plaintiff argues that Congress has determined which convictions are
related to the delivery of an item or service under Medicare or Medicaid
In an opinion regarding plaintiff’s motion to dismiss the underlying
criminal charges, the court explained that such statements are made not to
submit a claim, but to place in the patient’s folder to support a claim that
has been submitted should Medicare audit a provider’s billings. United
States v. Salko, No. 1:07cr286, 2008 WL 4671769 at *2 (M.D. Pa. Oct. 20,
2008).
2
11
and which are not so related. If a person is convicted of a felony under the
statute, then the conviction is related to the delivery of an item or service.
If he is convicted of a misdemeanor, then the conviction is not related to
the delivery of an item or service. Plaintiff pled guilty to a misdemeanor,
therefore, his conviction is not related to the delivery of an item or service.
Because it is not related to the delivery or an item or service, then the
mandatory exclusion is inapplicable. We are unconvinced by plaintiff’s
argument.
The crime to which plaintiff pled guilty is a felony “(i) in the case of
such a statement, representation, concealment, failure or conversion by
any person in connection with the furnishing (by that person) of items or
services for which payment is or may be made under the program[.]” The
crime is a misdemeanor “(ii) in the case of such a statement,
representation, concealment, failure, conversion, or provision of counsel or
assistance by any other person[.]”
In light of section (ii), plaintiff interprets section (i) to mean that it is a
felony where the statement is made NOT in connection with the furnishing
(by that person) of items or services for which payment is, may or may be
made under the program. This interpretation of the statute is inaccurate.
The main body of the statute indicates that the false statement must be
made for use in determining rights to a benefit or payment under a federal
health care program to be a crime. After listing the six instances of false
statements that are crimes, the statute provides the grading, that is
whether the crime will be a misdemeanor or a felony. As written, to be
guilty under subsection 2, the statement must be made for use in
determining rights to a benefit or payment under a federal health care
12
program. As plaintiff interprets the grading section, however, it is a
misdemeanor if it is not related to delivery.
All infractions, however, whether misdemeanors or felonies, involve
false statements made for use in determining rights to a benefit or
payment. In fact, plaintiff admitted at his guilty plea that he made a false
statement or representation of a material fact and that is was for use in
determining rights to any benefit or payment under a federal healthcare
program. (R. at 171). It is self-evident that statements made “for use in
determining rights” to benefits under a federal health care program are
related to furnishing of such benefits. Accordingly, the mandatory
exclusion applies and we find no merit to the plaintiff’s arguments to the
contrary. Plaintiff makes no convincing argument to that Congress
intended only felonies to be “related to” and misdemeanors were as a
matter of law “not related to the delivery of an item.”
Thus, Plaintiff’s claim fails under step one of the Chevron analysis.
The defendant has applied an unambiguous statute. Her application is not
plainly erroneous or inconsistent with the regulation. See Chirstopher v.
Smithkline Beecham Corp., - - U.S. - - ; 132 S.Ct. 2156, 2166 (2012)
(quoting Chase Bank USA, N.A. v. McCoy, 562 U.S. - - , 131 S.Ct. 871,
880 (2011)). Therefore, plaintiff is not entitled to relief. If, however, we
were to proceed to step-two of the Chevron analysis, we would
nonetheless rule in defendant’s favor as the defendant’s application of the
statute is reasonable.
13
2) Alleged inconsistency between the exclusion at issue and the prior
determination that plaintiff was an eligible provider in the Medicare
Program
The Center for Medicare and Medicaid Services (“CMS”) revoked
plaintiff’s Medicare billing privileges effective September 7, 2007 and
imposed a three-year re-enrollment bar. (R. at 121, CMS Correspondence
dated Mar. 2, 2010). Later the re-enrollment bar was shortened to one
year. (Id.) The CMS informed plaintiff on March 2, 2010, that the bar was
lifted and that he was eligible to apply for re-enrollment in the Medicare
program. (Id.) Plaintiff thus filed a Medicare reactivation application with
CMS, and the application was approved on March 11, 2010. (Id. at 135,
CMS Correspondence dated Mar. 11, 2010). Plaintiff could thus begin
billing the Medicare program again. A year later, in May 2011, the IG
made the determination that plaintiff should be excluded from the Medicare
program for five years. (R. at 137-38). Plaintiff contends that the decision
of CMS is inconsistent with the decision of the IG, therefore, the IG’s
decision should not stand. We disagree as the CMS and the IG addressed
two different issues.
The CMS revoked plaintiff’s billing privileges because his medical
license was suspended, and plaintiff failed to report the suspension to the
CMS. (R. at 121). That is a different issue from that addressed by the IG.
The IG reviewed whether plaintiff should be excluded from Medicare
participation due to his criminal conviction. These two issues are
completely separate and are not interdependent. Thus, we find this is not
a proper basis for appeal.
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3) Fair notice
Plaintiff next argues that defendant failed to provide him “fair notice”
of her position because the position was adopted for the first time in this
enforcement proceeding. Plaintiff’s argument is not cogent.
The defendant has in fact excluded other medical providers from
participation in federal health programs under the mandatory exclusion
section for a misdemeanor violation of false statements. See, e.g., James
Benham v. Inspector Gen, DAB 2042 (2006); and Scott D. Augsutine v.
Inspector Gen., DAB 2043 (2006). Moreover, the defendant’s application
of the statute merely utilizes the plain language of the statute to exclude
the plaintiff. A reading of the statute at the time plaintiff made the false
statement for use in determining rights to such a benefit or payment, would
have provided him notice that he was subject to the mandatory exclusion.
No issues of “fair notice” are apparent and we reject plaintiff’s argument to
the contrary.
4) Arbitrary and capricious
The final argument plaintiff raises is that the defendant’s decision is
arbitrary and capricious in substance. In support of this position he cites
to a case from the United States Court of Appeals for the District of
Columbia Circuit, Friedman v. Sebelius, 686 F.3d 813 (D.C. Cir. 2012).
In Friedman, a company was convicted of fraudulently misbranding a
schedule II controlled substance. Id. at 816. The executives of the
company were convicted of a misdemeanor of misbranding a drug. Id.
The Secretary of Health and Human Services excluded the executives of
the company from participating in federal health care programs for twelve
years. Id. The exclusion was not mandatory but permissive under 42
U.S.C. § 1320a-7(b). Id.
15
The executives appealed the decision. Under the statute, the
Secretary had authority to exclude them if they were convicted of a
misdemeanor relating to fraud. Id. at 818. The executives argued that
misdemeanor misbranding is not a misdemeanor relating to fraud and that
the Secretary’s decision was arbitrary and capricious. Id. First, the court
determined that the statute was not ambiguous and, that it authorized the
secretary to exclude individuals who were convicted for conduct factually
related to fraud. Id. at 820. The court explained that the purpose of the
statute was to “protect Federal health care programs from financial harm
wrought by untrustworthy providers[.]” Id. It also applied a broad definition
to “related to fraud.” Id. The court held that the statute at issue
authorized “the Secretary to exclude from participation in the Federal
health care program an individual convicted of a misdemeanor if the
conduct underlying that conviction is factually related to fraud.” Id. at 824.
The excluded company employees did not dispute that they were
excludable under that approach. They did, however, dispute the length of
their exclusion. They complained that the Secretary did not justify the
length of the exclusion in light of the agency’s prior decisions as the
Administrative Procedures Act (“APA”) requires. Id. at 826.
The Friedman case is distinguishable from the case before the court.
In this case, a mandatory exclusion is at issue, not a discretionary
exclusion. Additionally, the crime that the executives were convicted of in
Friedman was a strict liability crime. Id. at 818. Here, the crime has
specific elements to which the plaintiff pled guilty and admitted doing.
Thus, we find plaintiff’s reliance on Friedman to be unconvincing.
Conclusion
For the reasons set forth above, we find no merit to plaintiff’s appeal
16
of the DAB’s decision. The defendant’s decision is based on substantial
evidence and her legal analysis is appropriate. Under the Chevron test, we
find that the statute is unambiguous and defendant applied it correctly.
Even if the statute could be read as ambiguous, we would find the
defendant’s action to be reasonable. We will thus grant summary
judgment to the defendant and deny it to the plaintiff. An appropriate order
follows.
17
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
GREGORY J. SALKO, M.D.,
Plaintiff
:
No. 3:12cv515
:
:
(Judge Munley)
v.
:
:
KATHLEEN SEBELIUS, in her
:
official capacity as Secretary of the :
U.S. Department of Health and
:
Human Services,
:
Defendant
:
::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::
ORDER
AND NOW, to wit, this 19th day of February 2013, Defendant
Kathleen Sebelius, in her official capacity as Secretary of the U.S.
Department of Health and Human Services’ motion for summary judgment
(Doc. 17) is GRANTED and Plaintiff Gregory J. Salko, M.D.’s motion for
summary judgment (Doc. 14) is DENIED. The Clerk of Court is directed to
enter judgment in favor of the defendant and against the plaintiff. The
Clerk of Court is further directed to close this case.
BY THE COURT:
s/ James M. Munley
JUDGE JAMES M. MUNLEY
United States District Court
18
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