Reliable Ambulance Service of Laredo, Inc. v. Sebelius

Filing 15

ORDER granting 10 MOTION for Summary Judgment ( Motion for Judgment by Plaintiff due by 8/12/2013.)(Signed by Judge Nelva Gonzales Ramos) Parties notified.(amireles, )

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
CORPUS CHRISTI DIVISION
RELIABLE AMBULANCE SERVICE OF §
LAREDO, INC.,
§
§
Plaintiff,
§
VS.
§ CIVIL ACTION NO. 2:12-CV-372
§
KATHLEEN SEBELIUS,
§
§
Defendant.
§
ORDER
Before the Court is Reliable Ambulance Service, Inc.’s (Reliable’s) “Motion for
Summary Judgment on the Pleadings and the Record” (D.E. 10). At issue is whether
Reliable satisfied the Medicare requirements for reimbursement for non-emergency
ambulance services to transport its patient (the Medicare beneficiary) to kidney dialysis
treatments. The Medicare Appeals Council (Secretary)—the final level of administrative
review on behalf of the Secretary of Health and Human Services—issued its opinion
finding that the Medicare requirements were not satisfied. For the reasons set out below,
the Motion is GRANTED and the Secretary’s decision is REVERSED.
JURISDICTION
There is no dispute that Reliable has exhausted its administrative remedies,
culminating in the Secretary’s decision that was issued on October 2, 2012 (D.E. 10-2,
pp. 4-8). This Court’s jurisdiction is prescribed by 42 U.S.C. § 1395ff(b) and 42 U.S.C. §
405(g), requiring a complaint filed within sixty days of receipt of the decision, which
receipt is presumed to take place within five days of the date of the letter transmitting the
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decision. The Complaint (D.E. 1) was filed on December 5, 2012 and is thus timely.
This Court has jurisdiction to proceed and affirm, modify, or reverse, with or without
remand as appropriate. 42 U.S.C. § 405(g).
STANDARD OF REVIEW
According to the Administrative Procedure Act (APA) and its judicial review
provisions, the Secretary’s decision is entitled to a highly deferential standard of review.
APA, 5 U.S.C. §§ 701 et seq.; Avoyelles Sportsmen’s League, Inc. v. Marsh, 715 F.2d
897, 904 (5th Cir. 1983). The administrative findings as to any fact, if supported by
substantial evidence, are conclusive. 42 U.S.C. § 405(g). The Court does not re-weigh
the evidence or substitute its judgment for that of the agency, but determines whether the
agency decision was based on relevant factors and substantial evidence, and is legally
correct. Texas Clinical Labs, Inc. v. Sebelius, 612 F.3d 771, 774 (5th Cir. 2010); Delta
Foundation, Inc. v. United States, 303 F.3d 551, 563 (5th Cir. 2002); Estate of Morris v.
Shalala, 207 F.3d 744, 745 (5th Cir. 2000); Harris v. United States, 19 F.3d 1090, 1096
(5th Cir. 1994).
A reversal on evidentiary grounds is only appropriate if no credible evidentiary
choices or medical findings support the decision. Harris v. Apfel, 209 F.3d 413, 417 (5th
Cir. 2000). Purely legal questions are reviewed de novo, giving deference to the agency's
interpretation of the statute and regulations that it is charged with administering. Alwan
v. Ashcroft, 388 F.3d 507, 510 (5th Cir. 2004). Still, the Medicare Act is to be liberally
construed in favor of beneficiaries and coverage decisions should be based upon a

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common sense, non-technical consideration of the patient’s condition as a whole.
Morris, supra.
DISCUSSION
This case is not factually complex. The beneficiary’s doctor signed two identical
Physician Certification Statements covering the dates of service at issue, stating:
Patient’s medical information making it a medical necessity
for non-emergency ambulance transportation is due to Patient
being unable to get up from bed/sit/stand without assistance
due to the following:
[Patient with left Below Knee Amputation], Poor Motor
Functions, Poor Upper Trunk Control, Stiffness to all
Extremities, Peripheral Vascular Disease, Diabetes Mellitus
(non-insulin dependent), Hypertension, Coronary Artery
Disease (status post coronary revascularisation), Anemia.
[Patient] on constant [Oxygen] @ 4 LPM due to Chronic
Obstructive Pulmonary Disease, End Stage Renal Disease,
Dialysis Status. Other Medical Hx: Cholecystectomy.
[Patient] to be transported from/to his Residence to/from his
Hemodialysis Treatments.
D.E. 10-3, pp. 49-50. Reliable’s records show that, on each occasion, the technicians
loaded the beneficiary onto a stretcher using a two-man drawsheet method, confirmed the
beneficiary’s poor motor functions, poor upper trunk control, stiff extremities, and added
that his right toes had been amputated. E.g., D.E. 10-3, pp. 27-48.
In the telephonic hearing conducted for the Secretary’s de novo review, Fernando
Canseco, the only witness, testified that the beneficiary could not control his own
oxygen:

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He had—his debilitations wouldn’t—did not allow him to be
able to move a dial—his debilitations did not allow him to be
able to move himself to the oxygen tank. Because of the
amputations on—he’s a bilateral amputee—and the fact that
he was unable to control his upper trunk, as well as poor
motor functions to all his extremities.
D.E. 10-8, p. 32-33. Mr. Canseco further testified that the beneficiary was transported
from his bed at home to Geri-Chairs (a form of recliner that prevents a beneficiary from
sitting forward) at the dialysis center and back by use of the drawsheet method and
stretcher. D.E. 10-8, p. 31-32.
There is no contrary evidence that the Secretary had to weigh. The only evidence
shows that the beneficiary was confined to bed, could not control the continuous
administration of oxygen that was necessary to his treatment, and that ambulance
transport was considered medically necessary by his physician. On this record, the
Secretary denied Medicare coverage and reimbursement, reciting that Reliable had not
established that other methods of transport, particularly a stretcher van, were
contraindicated. D.E. 10-2, pp. 6-7.
According to Medicare regulations, “Nonemergency transportation by ambulance
is appropriate if . . . : the beneficiary is bed-confined, and it is documented that the
beneficiary’s condition is such that
contraindicated . . . .”

other methods of transportation are

42 C.F.R. § 410.40(d)(1) (emphasis added).

The question

presented is whether this record shows that the beneficiary’s condition is such that other
methods of transportation are contraindicated. In the statute, the definition of covered
“medical and other health services” includes “ambulance service where the use of other
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methods of transportation is contraindicated by the individual’s condition . . . .” 42
U.S.C. § 1395x(s)(7). This issue does not necessarily require a specific piece of paper
saying that other modes of transport are contraindicated—only that the beneficiary’s
“condition” so demonstrates. There appears to be no question as to this beneficiary’s
condition.
The Secretary’s decision suggests that Reliable needed more than the physician’s
certificate and the technician’s observations regarding the beneficiary’s condition—that it
needed more “medical evidence” to establish that Medicare coverage requirements were
met, citing Maximum Comfort v. Secretary of Health & Human Services, 512 F.3d 1081,
1087-88 (9th Cir. 2007).

The Maximum Comfort case, along with two others cited

therein, involved Medicare audits that revealed a number of motorized wheelchairs being
provided to beneficiaries who did not meet the statutory requirements for Medicare
coverage of the cost of the equipment (despite physician certifications conclusively
representing that the requirements were met). See MacKenzie Medical Supply, Inc. v.
Leavitt, 506 F.3d 341 (4th Cir. 2007); Gulfcoast Medical Supply, Inc. v. Secretary, Health
& Human Services, 468 F.3d 1347 (11th Cir. 2006).
The legal challenge in each of those cases was based on the argument that the
physician’s certificates were conclusive and prohibited the Secretary’s request for
additional medical information to confirm the beneficiary’s medical condition and guard
against fraud. The courts in each of the three cases held that the Medicare statute did not
make a physician’s certificate conclusive evidence of a beneficiary’s right to

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reimbursement for durable medical equipment. Instead, the Secretary was demanding,
and was entitled to, additional evidence of the beneficiary’s condition.
The holding in the Maximum Comfort trio of cases does not determine this case.
Here, the Secretary is not faced with a blanket prohibition on seeking documentation of
the beneficiary’s condition. That condition is firmly established. The Secretary, in her
Response, has confirmed the very narrow question posed in this case: “The record
clearly established that the beneficiary needed assistance for trips to and from dialysis;
however, the record did not establish that such assistance had to be provided by
ambulance personnel.” D.E. 13, p. 2. Thus the question is not whether the Secretary had
the right to demand additional proof of the beneficiary’s medical condition, but whether
the proof of that condition met the statutory requirements for non-emergent transport by
ambulance.
Given the Secretary’s acceptance of the evidence of the beneficiary’s condition,
there is no question that he required the continuous administration of oxygen prescribed
by his physician and reflected in the physician’s certification. The only evidence on the
issue showed that the beneficiary, himself, did not have the capacity to handle the oxygen
tank or manipulate its dials in order to maintain the necessary blood saturation levels and
that the ambulance personnel were equipped to, and did in fact, handle the monitoring of
his levels and the administration of the oxygen for the duration of the trips.
The questioning at the final administrative level pertained to the short duration of
those trips. D.E. 10-8, pp. 30-31. It appears that the Secretary was skeptical of the
beneficiary’s need for medical technicians to administer the oxygen when the transport
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covered only a few miles. Because the physician’s certification states that the beneficiary
was on “constant oxygen,” there is no evidence from which the Secretary may conclude
that a brief interruption in the administration of the oxygen would be harmless. The
Court notes that the Secretary’s decision does not address the continuous oxygen
treatment when it claims that the record fails to show that alternative modes of
transportation were contraindicated. Because the undisputed evidence accepted by the
Secretary reflects the beneficiary’s diagnoses and relevant treatment parameters, and
because nothing in the record reflects that a stretcher van could accommodate the
beneficiary’s oxygen needs, the Court finds that the Secretary did not have substantial
evidence to support her denial of benefits.
This conclusion is further compelled by the required liberal construction of the
Medicare Act with respect to coverage issues and by the statute’s reference to the
beneficiary’s condition contraindicating the use of alternative transportation methods.
Therefore, the case should be reversed.
CONCLUSION
For the reasons set out above, the Court GRANTS the Motion for Summary
Judgment and REVERSES the Secretary’s decision. The Court ORDERS Plaintiff to file
its Motion for Judgment on or before August 12, 2013, with evidence supporting its claim
for reimbursement, reasonable and necessary attorney’s fees, and any other damages it
claims. Defendant is ORDERED to file her Response to said Motion for Judgment on or
before the 14th day after the Motion is filed. The Court terminates the oral argument
setting on July 26, 2013.
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ORDERED this 18th day of July, 2013.

___________________________________
NELVA GONZALES RAMOS
UNITED STATES DISTRICT JUDGE

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