Robie v. Price et al

Filing 43

MEMORANDUM OPINION AND ORDER pursuant to the plaintiff's 3 MOTION for Ex Parte Temporary Restraining Order and Preliminary Injunction; having granted the temporary restraining order and reserved ruling on the preliminary injunction; th e court GRANTS in part the plaintiff's Motion for Preliminary Injunction; the defendants are ENJOINED from revoking Dr. Robie's Medicare billing privileges until the Secretary presents this court with evidence that Dr. Robie has been acc orded due process in the form of a meaningful opportunity to be heard consistent with this opinion or until further order of this court; the defendants are ORDERED to immediately update their PECOS billing system to ensure Dr. Robie's billing privileges are not revoked prior to such evidence being presented before the court; this Order will be enforced upon request by further court action; to the extent that the plaintiff's Motion asks for the preliminary injunction to remain in p lace through the entire administrative appeals process, it is DENIED; once the Secretary demonstrates to the court that Dr. Robie has been afforded due process, Dr. Robie must challenge the Secretary's substantive decision through the administrative process. Signed by Judge Joseph R. Goodwin on 7/26/2017. (cc: counsel of record; any unrepresented party) (taq)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
CHARLESTON DIVISION
E. MICHAEL ROBIE,
Plaintiff,
v.

CIVIL ACTION NO. 2:17-cv-03089

THOMAS E. PRICE, et al.,
Defendants.

MEMORANDUM OPINION AND ORDER
Pending before the court is the plaintiff’s Motion for Ex Parte Temporary
Restraining Order and Preliminary Injunction [ECF No. 3]. On July 7, 2017, I
granted the temporary restraining order and reserved ruling on the preliminary
injunction. I will now address the plaintiff’s request for preliminary injunction. For
the reasons stated herein, the Motion for Preliminary Injunction [ECF No. 3] is
GRANTED in part and DENIED in part.
I. BACKGROUND
The plaintiff, E. Michael Robie, D.O., a family practice physician, provides
services to medically underserved communities in Putnam and western Kanawha
counties. V. Compl. ¶42 [ECF No. 1]. Dr. Robie treats 121 homebound patients who
would otherwise go without medical care due to their fragile conditions. Id. at ¶¶ 12,
42. He is the sole attending physician for two assisted living facilities. Id. at ¶ 43.

Dr. Robie currently serves as the peer-elected Secretary/Treasurer at Charleston
Area Medical Center, Inc. (“CAMC”), and his peers at CAMC recently elected him to
serve as Chief of Staff at CAMC in 2019. Id. at ¶ 45; Resp. by Pl. 8 [ECF No. 19].
On December 1, 2016, the Centers for Medicare & Medicaid Services (“CMS”)
sent a letter to Dr. Robie requesting medical documentation for eleven of Medicare
beneficiaries who received medical services from Dr. Robie. V. Compl. Ex. 2A, at 2
(“Dec. 1 Letter”) [ECF No. 1-5]. At the evidentiary hearing on July 17, 2017, Dr. Robie
testified that he did not see the Dec. 1 Letter in December. Tr. of Mots. Hr’g 63:9–11,
July 17, 2017 [ECF No. 42]. The Dec. 1 Letter requested the following: admission
history results, test requisitions, discharge summaries, patient information sheets,
physician’s orders, consultation reports, verbal orders, laboratory tests, requests for
services, prescriptions, progress notes, and home assessments. Id. Elizabeth
Montgomery, the Department Manager for Primary Care at CAMC who regularly
handles document requests from CMS for CAMC’s physicians, forwarded CMS’s
request to Ciox Health, who maintains CAMC’s archived patient records. V. Compl.
Ex. 2, at ¶ 7 (“Mont. Aff.”) [ECF No. 1-4]. Ms. Montgomery confirmed with Ciox
Health that they provided the requested records to CMS on or before December 10,
2016 (“Dec. Production”), well within CMS’s December 15, 2016, deadline. Mont. Aff.
¶ 8; Dec. 1 Letter.
CMS did not contact CAMC or Dr. Robie until it sent an e-mail on April 4,
2017, to CAMC asking for an example of Dr. Robie’s signature. Mont. Aff. ¶ 9.
2

Examples of Dr. Robie’s signature were provided to CMS on April 5, 2017. Mont. Aff.
¶ 10.
About one month later, CMS sent a letter by its contractor, Palmetto GBA,
LLC, dated May 9, 2017, to Dr. Robie stating that Dr. Robie’s Medicare billing
privileges were being revoked effective June 8, 2017. V. Compl. Ex. 1A (“May 9
Letter”) [ECF No. 1-2]. The May 9 Letter explained that Dr. Robie’s privileges would
be revoked for a “Failure to Provide CMS Access to Documentation” under 42 C.F.R.
§ 424.535(a)(10) in response to the Dec. 1 Letter. May 9 Letter. CMS stated that it
was missing documents for six of the beneficiaries listed in the Dec. 1 Letter and
received insufficient documents for the other five beneficiaries listed. May 9 Letter.
CMS attached a table specifying the particular beneficiaries, particular dates of
service, and particular kinds of services that CMS claimed were missing from the
Dec. Production. May 9 Letter. For one of the eleven beneficiaries, the May 9 Letter
claimed that documents from January 2013 were missing; however, the Dec. 1 Letter
only requested documents from service year 2012. Tr. of Mots. Hr’g 18:12–19:4,
70:24–71:4, July 17, 2017.
On May 26, 2017, Dr. Robie stated under oath that he submitted the missing
documentation to CMS and Palmetto GBA (“May Production”). V. Compl. ¶ 11; V.
Compl. Ex. 1, at ¶ 7 (“First Robie Aff.”) [ECF No. 1-1]. Furthermore, at the evidentiary
hearing, Dr. Robie testified that he went through the documents for each beneficiary
to make sure that there was a plan of care, face-to-face documentation, and home
3

health certifications so that the May Production satisfied the Secretary’s request. Tr.
of Mots. Hr’g 68:25–69:25, July 17, 2017. While the parties agree that Dr. Robie
produced documents in the May Production, they dispute whether the May
Production sufficiently complied with the May 9 Letter. On May 31, 2017, Dr. Robie
sued CMS and Palmetto GBA to halt the revocation of his Medicare billing privileges
effective June 8, 2017.
On June 6, 2017, the parties entered into an agreement to delay Dr. Robie’s
revocation date until July 10, 2017, and the defendants agreed to review the
additional documents provided in Dr. Robie’s May Production. Tr. of Mots. Hr’g 6:15–
8:6, June 9, 2017 [ECF No. 9]. In a June 14, 2017 letter, CMS through Palmetto GBA
reaffirmed its revocation of Dr. Robie’s Medicare billing for “Failure to Provide CMS
Access to Documentation” under 42 C.F.R. § 424.535(a)(10) in response to the Dec. 1
Letter. Resp. Ex. 8 (“June 14 Letter”) [ECF No. 19-8]. The reconsideration
determination was made by the same Palmetto GBA analyst who made the original
determination. May 9 Letter; June 14 Letter. The June 14 Letter does not identify
the documents that CMS and Palmetto GBA consider to still be missing. The
Secretary presented no evidence at the evidentiary hearing that the May Production
was considered before the June 14 Letter was decided. In fact, counsel for the
government made contradicting statements as to whether these additional
documents in the May Production were considered by the Secretary of the United
States Department of Health and Human Services (“Secretary”) before the June 14
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Letter, upholding Dr. Robie’s revocation, was decided. Tr. of Mots. Hr’g 84:12–86:17,
July 17, 2017.1
The parties dispute whether the Secretary is in receipt of the medical
documents requested in the Dec. 1 Letter. This dispute appears to be depriving
medically underserved West Virginians of their access to necessary health services.

1

MR WESTFALL: “It’s our position he didn’t respond appropriately with requests – to
the requests on December 1. He had time to – in order to fulfill that and he didn’t
before the revocation letter on May the 9th. The problem – or not the problem, but the
situation is from that point forward he had – he was given – he did have opportunities.
He did present additional records and he’s done that through the reconsideration
process. It’s our position, because he didn’t send them on December 1 or prior to May

9th, we had the – the Secretary had the discretion, through its contractor under the
reg, to revoke his privileges and they were revoked.
THE COURT: For the original default?
MR. WESTFALL: Yes.

THE COURT: But, in other words, you’re telling me that the cabinet officer in charge
of this, through his representative, allowed time for another set of documents to be
sent, extended the time within which he might send records and not be revoked, but
didn’t consider them, but revoked him based on the first defalcation?
MR. WESTFALL: No, I think that – I don’t think that's correct. The records that were
sent subsequently were considered and reviewed, which further indicated that Dr.
Robie failed to meet his requirement when the first request went through. At that
point, then the administrative process – and it’s our position is that if he wants – if
he’s looking to try to have that revocation rescinded, then it’s going to have to go
through the administrative process.
THE COURT: Let me be sure I understand you again. Are you telling me that the –
before the revocation took place, that the records that were sent later and handed to
the U.S. Attorney’s Office, delivered by receipt to the contractor and the Secretary and
so forth, were or were not considered in the decision to revoke?
MR. WESTFALL: My understanding was that they were examined and –
THE COURT: Were they considered in the decision?
MR. WESTFALL: They were considered and the decision was still to continue to go
with the revocation because he failed to respond to the request in December and –
THE COURT: I don’t get that at all.
...
THE COURT: . . .Were, to your knowledge as counsel and an officer of the Court, these
documents sent the second and third time considered in making the decision to revoke?
Yes or no?
MR. WESTFALL: Yes.” (emphasis added).

5

II. LEGAL STANDARD
To obtain a preliminary injunction, a plaintiff must show “[1] that he is likely
to succeed on the merits, [2] that he is likely to suffer irreparable harm in the absence
of preliminary relief, [3] that the balance of equities tips in his favor, and [4] that an
injunction is in the public interest.” Real Truth About Obama, Inc. v. Fed. Election

Comm’n, 575 F.3d 342, 346 (4th Cir. 2009) (quoting Winter v. Nat’l Res. Def. Counsel,
Inc., 555 U.S. 7, 20 (2008)). The plaintiff has the burden of proof for all four elements.
Id.
III. DISCUSSION
I must now consider whether to grant Dr. Robie a preliminary injunction
staying the revocation of his Medicare billing privileges. However, before turning to
the preliminary injunction, I must first determine whether the court has jurisdiction
over this case.
A. Jurisdiction
The court has subject matter jurisdiction over this case pursuant to 42 U.S.C.
§ 405(g) and Mathews v. Eldridge, 424 U.S. 319 (1976).
Federal courts are barred from reviewing claims under the Social Security Act,
including the revocation of a physician’s Medicare billing privileges, unless there has
been a final decision by the Secretary. 42 U.S.C. § 405(g); 42 U.S.C. § 405(h); 42 U.S.C.
§ 1395ii; Shalala v. Ill. Council on Long Term Health Care, Inc., 529 U.S. 1, 10–11
(2000). A decision is final if the claimant has presented his claim to the agency and
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has exhausted his administrative remedies. Mathews, 424 U.S. at 328. Presentment
is always required, but the Secretary may waive exhaustion. Id. If the Secretary does
not waive exhaustion, the court may imply waiver “if the plaintiff asserts a ‘colorable’
constitutional claim that is ‘collateral’ to the merits.” Varandani v. Bowen, 824 F.2d
307, 310 (4th Cir. 1987) (citing Mathews, 424 U.S. at 330–31). “The rationale for the
implied waiver rule, at least as to procedural due process claims, is that a
‘preliminary’ administrative decision to deprive an individual of property may cause
irreparable harm that cannot be rectified by a postdeprivation hearing, and thus that

the ‘preliminary’ decision is in fact ‘final.’” Id. (emphasis added) (citing Mathews, 424
U.S. at 331–32).
Presentment requires an “initial presentation of the matter to the agency.” Ill.

Council, 529 U.S. at 20. “Presentment can be fulfilled by contesting tentative agency
determinations.” Cassim v. Bowen, 824 F.2d 791, 794 (9th Cir. 1987). The May 9
Letter declared that Dr. Robie’s Medicare billing privileges were being revoked on
June 8, 2017. It was not a request for information or other form of communication.
Absent any action on Dr. Robie’s part, his Medicare billing privileges would have been
revoked effective June 8, 2017. Accordingly, the May 9 Letter constitutes an agency
determination. Dr. Robie’s May Production contested CMS’s determination by
requesting that the revocation be rescinded upon the production of the requested
documents. See Tr. of Mots. Hr’g 18:15–19:8, June 26, 2017 [ECF No. 25]. Therefore,
the court FINDS that presentment has been satisfied in this case.
7

Since Dr. Robie only just invoked the administrative process on June 18, 2017,
by requesting a formal reconsideration, he has not exhausted his administrative
remedies. Resp. by Pl. Ex. 6 [ECF No. 19-6]. Additionally, the Secretary has not
waived the exhaustion requirement in this case. Tr. of Mots. Hr’g 24:11–13, June 26,
2017. Therefore, the court must consider whether it may imply waiver of the
exhaustion requirement. The court may imply waiver if the plaintiff (1) presents a
constitutional claim entirely collateral to the substantive claim of entitlement and (2)
shows that full relief cannot be obtained at a postdeprivation hearing. Mathews, 424
U.S. at 330–31; see Varandani, 824 F.2d at 310; Ram v. Heckler, 792 F.2d 444, 446
(4th Cir. 1986).
Dr. Robie is not challenging the merits of the Secretary’s revocation. Rather,
he is challenging the process by which the Secretary revoked his Medicare billing
privileges. V. Compl. ¶¶ 51–53. Thus, I FIND that Dr. Robie’s procedural due process
claim is a constitutional claim that is entirely collateral to the substantive merits
underlying the agency determination. See Mathews, 424 U.S. at 330–31 (finding
claim to predeprivation hearing prior to termination of Social Security benefits is a
constitutional due process claim entirely collateral to the underlying agency
determination); Ram, 792 F.2d at 446 (finding a “final decision on Ram’s substantive
claim would not answer the constitutional challenge to the validity of a suspension
prior to a hearing”).
Dr. Robie has also made a showing that full relief cannot be obtained at a
8

postdeprivation hearing. In Ram v. Heckler, the Fourth Circuit found that losing a
year of income during the administrative review process was sufficient to show that
full relief was not obtainable at a postdeprivation hearing for jurisdictional purposes.

See Ram, 792 F.2d at 446. In this case, more is at stake than Dr. Robie’s income—his
career will be altered in an irreparable way. In addition to the fact that 70% of Dr.
Robie’s practice is government insured patients, Dr. Robie currently serves as the
Secretary/Treasurer at CAMC. First Robie Aff. ¶¶ 4, 15. He has been elected by his
peers to serve as Chief of Staff-elect in 2018 and Chief of Staff in 2019. Id. at ¶ 4. Dr.
Robie also serves on several CAMC committees including the Medical Staff Quality
Improvement Council and the Medical Staff Bylaws Committee. Id. at ¶ 12.
Revocation of his Medicare billing privileges will strip Dr. Robie of his peer-elected
administrative positions at CAMC since he will no longer be eligible to serve on
CAMC’s staff. Id. at ¶ 18. Restoration to these positions is not possible postrevocation.
Therefore, I FIND that a postdeprivation hearing cannot provide Dr. Robie full relief
and that I may imply waiver of the exhaustion requirement.
Because Dr. Robie has demonstrated presentment and waiver, the court
FINDS that it has jurisdiction pursuant to 42 U.S.C. § 405(g) and Mathews. The court
must now address the merits for issuing a preliminary injunction.
B. Real Truth Elements for Preliminary Injunction
i. Likelihood of Success on the Merits
Dr. Robie claims he has not received adequate due process prior to being
9

deprived of his property interest in continuing to have Medicare billing privileges. V.
Compl. ¶ 51. The Fourth Circuit has recognized that a physician’s “expectation of
continued participation in the [M]edicare program is a property interest protected by
the due process clause of the [F]ifth [A]mendment.” Ram, 792 F.2d at 447. To evaluate
the likelihood of success on the merits, the court must consider whether Dr. Robie is
entitled to additional prerevocation process. See Arriva Med., 2017 WL 943904, at
*10 (“To prevail, [the plaintiff] bears the burden of showing a substantial likelihood
that the Due Process Clause entitles it to additional predeprivation process.”).
As a general matter, courts are lenient on what they require of the Secretary
to satisfy due process when revoking a physician’s Medicare and Medicaid billing
privileges. See Varandani, 824 F.2d at 310–11 (finding that a chance to respond in
writing and face-to-face meeting with a peer review group recommending suspension
while having an attorney present was sufficient due process); Ram, 792 F.2d at 447
(finding that a full criminal trial on Medicare fraud was sufficient due process); Ritter

v. Cohen, 797 F.2d 119, 123 (3rd Cir. 1986) (finding that an opportunity to meet with
a peer review team prior to receiving a sanction and having a chance to submit
written reasons against termination decision was sufficient due process); Arriva Med.

LLC v. U.S. Dep’t of Health and Hum. Servs. 2017 WL 943904, at *17 (D.D.C. Mar.
9, 2017) (finding that a paper hearing and later oral presentation of health care
provider’s arguments was sufficient due process). The courts are in agreement that
due process does not entitle a physician to a full evidentiary hearing prior to having
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his Medicare billing privileges revoked. See, e.g., Varandani, 824 F.2d at 311. “The
fundamental requirement of due process is the opportunity to be heard ‘at a
meaningful time and in a meaningful manner.’” Mathews, 424 U.S. at 333 (quoting

Armstrong v. Manzo, 380 U.S. 545, 552 (1965)).
The Supreme Court in Mathews articulated a three factor balancing test for
determining whether sufficient process has been given prior to the deprivation of a
property interest. Mathews, 424 U.S. at 335. The court must balance:
[1]the private interest that will be affected by the official action; [2], the
risk of an erroneous deprivation of such interest through the procedures
used, and the probable value, if any, of additional or substitute
procedural safeguards; and [3], the Government’s interest, including the
function involved and the fiscal and administrative burdens that the
additional or substitute procedural requirement would entail.

Id.
1. Private Interest
Dr. Robie has substantial interests at stake in continuing to have his Medicare
billing privileges. Dr. Robie cannot maintain his position on CAMC’s staff if his
Medicare billing privileges are revoked. First Robie Aff. ¶ 17. If he cannot remain on
CAMC’s staff, Dr. Robie will lose his peer-elected positions at CAMC, including his
Chief of Staff position in 2019. Id. at ¶ 18. Given that 70% of Dr. Robie’s patients are
governmentally insured, revocation of Dr. Robie’s Medicare billing privileges will gut
his practice. First Robie Aff. ¶ 15. He will lose several additional service positions in
the local medical community, and he will be subject to permanent reputational harm.

Id. at ¶¶ 12, 13, 14, 18, 19, 21.
11

In cases similar to Dr. Robie’s, courts often place the burden on the physician
to dramatically restructure his practice by either providing health services without
any assurance of payment or taking on only private patients during the
administrative appeals process. See, e.g., Ritter, 797 F.2d at 123. This is because
physicians are not the intended beneficiaries of the Medicare program, and so the
private interest of the physician is discounted in this Mathews balancing. See

Cathedral Rock of N. Coll. Hill, Inc. v. Shalala, 223 F.3d 354, 364–65 (6th Cir. 2000)
(examining circuit court law determining that “the private interest at stake is not
particularly strong because the Medicare provider is not the intended beneficiary of
the Medicare program”). After appropriately considering Dr. Robie’s interests, I FIND
that the private interest factor still weighs in favor of Dr. Robie.

2. Risk of Erroneous Deprivation
While some courts have noted that that the adequacy of a physician’s records
is not usually at high risk for erroneous decision making by the Secretary, this case
presents several distinguishing concerns. See Ritter, 797 F.2d at 123.
First, Dr. Robie has received no meaningful communication regarding the
reason for his revocation. In Arriva Med., LLC v. U.S. Dep’t of Health and Hum.

Servs., the district court determined that the plaintiff had received due process where
the defendant provided a three-page exposition cataloguing the plaintiff’s arguments
against revocation and explaining why the revocation was being upheld. See Arriva

Med., 2017 WL 943904, at *13. On the contrary, here, the Secretary has not presented
12

a similar explanation in this case. In the May Production, Dr. Robie produced nearly
1500 pages of medical records in response to CMS’s May 9 Letter. Resp. by Pl 6. In
fact, not every document listed in the May 9 Letter is even properly a “deficiency”
because certain records had never before been requested by the Secretary. See Tr. of
Mots. Hr’g 18:12–19:4, 70:24–71:4, July 17, 2017. Dr. Robie stated under oath
multiple times that the May Production satisfies all the requests of the Secretary in
the May 9 Letter. Second Mot. by Pl. for Leave to Supp. Resp. Ex. A (“Third Robie
Aff.”) [ECF No. 26-1]; Tr. of Mots. Hr’g 68:25–69:25, July 17, 2017. The Secretary has
not communicated to anyone how the May Production is deficient.
Due process requires that the agency identify the charges with “such
descriptive explanation . . . to permit [the charged party] to identify the conduct giving
rise to the [charges] and thereby to enable him to make a response.” Linton v.

Frederick Cty. Bd. Of Comm’rs, 964 F.2d 1436, 1440 (4th Cir. 1992); see Wilkinson v.
Austin, 545 U.S. 209, 225–26 (2005) (noting that notice of the factual basis for the
administrative determination and a fair opportunity for rebuttal “are among the most
important procedural mechanisms for purposes of avoiding erroneous deprivations”);

see also Al Haramain Islamic Found., Inc. v. U.S. Dep’t of Treasury, 686 F.3d 965,
986 (9th Cir. 2012) (finding that since the claimant “could only guess (partly
incorrectly) as to the reasons for the [administrative] investigation [which resulted in
an administrative decision that froze the claimant’s assets for four years], the risk of
erroneous deprivation was high.”). At this point, Dr. Robie does not know how to
13

respond to the Secretary because the Secretary has failed to communicate the specific
basis for the revocation to him. Dr. Robie can only guess as to what the deficiencies
are.
Additionally, after the evidentiary hearing on this matter, it is now unclear to
me whether the May Production constituted a fair opportunity for rebuttal. See

Arriva Med., 2017 WL 943904, at *13 (finding a “paper hearing” gave the medical
provider an opportunity to respond by presenting reasons, in the form of evidence and
arguments, in writing to the agency challenging its decision). Before the evidentiary
hearing, it was implied that the Secretary had reviewed the May Production to see if
those documents satisfied the May 9 Letter before the determination in the June 14
Letter was made. Counsel for the Secretary significantly muddied the waters on this
during the evidentiary hearing. See Tr. of Mots. Hr’g 84:12–86:17, July 17, 2017;

supra fn. 1. Upon review of the June 14 Letter, it clearly states that the June 14
Letter was decided based on a failure to provide documents in response to the Dec. 1
Letter, not because the May Production was insufficient to rectify the deficiencies
alleged in the May 9 Letter. June 14 Letter.
Since Dr. Robie filed this lawsuit on May 31, 2017, the Secretary has had
approximately six weeks to gather evidence regarding what process it has given Dr.
Robie. It should not be particularly onerous to present a modicum of evidence at an
evidentiary hearing as to what specific process was granted Dr. Robie with respect to
his May Production. Indeed, what process the Secretary has provided is entirely
14

within the Secretary’s knowledge. Neither I, nor Dr. Robie, can know what process
the Secretary has provided unless the Secretary presents evidence on the matter. The
Secretary has not presented any evidence whatsoever that Dr. Robie received
adequate notice of the alleged deficiencies and a fair opportunity for rebuttal, so I
must deeply question the accuracy of the Secretary’s determinations and the
sufficiency of process accorded Dr. Robie.
Furthermore, even if the May 9 Letter constituted adequate notice and the
May Production constituted a paper hearing, Dr. Robie has not received any in person
meeting with a party responsible for the determinations made regarding his billing
privileges. While due process does not require that a physician be given a full
evidentiary hearing prior to revocation, courts commonly find sufficient due process
where the physician received some in person opportunity to state their position. See,

e.g., Varandani, 824 F.2d at 310–11 (finding due process where physician had faceto-face meeting with peer review group recommending suspension); Ram, 792 F.2d at
447 (finding due process where physician had full criminal trial); Ritter, 797 F.2d at
123 (finding due process where physician met with peer review team prior to
sanction); Thorbus v. Bowen, 848 F.2d 901, 902 (8th Cir. 1988) (finding due process
where physician presented oral argument through counsel to Office of Inspector
General of the Department of Human Health and Service); Arriva Med., 2017 WL
943904, at *14 (finding due process where plaintiff received in-person meeting with
senior CMS officials, including the head of PEOG prior to revocation). Some minimal
15

opportunity to meet in person with an individual involved in the revocation
determination is a valuable procedural safeguard—one that was not afforded Dr.
Robie.
For this case, the opportunity to meet in person is especially valuable because
it would make clear to Dr. Robie exactly what the alleged deficiencies are. The district
court in Arriva Med., LLC v. U.S. Dep’t of Health and Hum. Servs. placed a lot of
emphasis on the paper hearing in its due process analysis, but the fact remained that
the medical provider had two opportunities to meet in person with CMS higher ups,
and during those meetings both CMS and the provider were able to air their
arguments and grievances. Arriva Med., 2017 WL 943904, at *14. On the contrary,
in this case, Dr. Robie has not had an opportunity to air his grievances and argue for
his position. Indeed, given the paltry communications from the Secretary, he does not
even know what his grievances are.
Dr. Robie has not been given any explanation for the revocation or any
opportunity to be heard beyond a most conclusory statement that he failed to provide
requested documents. In the Dec. 1 Letter, he was told to comply with the law. In the
May 9 Letter, he was told he did not comply with the law, and so his Medicare billing
privileges were being revoked. That is it. I find that this heavy handed and superficial
bureaucratic pronouncement creates a substantial risk of erroneous deprivation.
Therefore, I FIND that this factor weighs heavily in favor of Dr. Robie.

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3. Government Interest
Here, since no wrongdoing is alleged against Dr. Robie, the government’s
interest is limited to “preserving scarce financial and administrative resources” and
“ensuring that its money is not spent on medically unnecessary services.” Ritter, 797
F.2d at 123. Indeed, avoiding waste seems to have been Congress’s motivation for
authorizing the Secretary to make Medicare billing revocations under 42 C.F.R. §
424.535(a)(10) for inadequate documentation for home health services. See 42 U.S.C.
§ 1395u(h)(9). Any revocation of Medicare billing privileges under 42 C.F.R. §
424.535(a)(10) will implicate the government’s interest in ensuring that Medicare
funds are not spent on medically unnecessary services. That concern is not unique to
this case. Therefore, I FIND that this factor weighs only slightly in favor of the
Secretary.
Balancing these three factors, I FIND that Dr. Robie is likely to succeed on the
merits of his due process claim that he is entitled to additional procedural safeguards
prior to the revocation of his Medicare billing privileges. While the private interest
and governmental interest factors weigh against one another in this balancing test,
the risk of erroneous deprivation weighs heavily in favor of Dr. Robie. Here,
meaningful process has likely not been accorded to Dr. Robie at this point in this case.
The Secretary has provided no evidence that Dr. Robie has been specifically informed
of the deficiencies against him and has been provided an opportunity to be heard “at
a meaningful time and in a meaningful manner,” so I must conclude that due process
17

is completely lacking in this case. Mathews, 424 U.S. at 333 (quoting Armstrong, 380
U.S. at 552).
Having determined that Dr. Robie has shown that he is likely to succeed on
the merits of his due process claim, I now turn to the remaining three Real Truth
elements for a preliminary injunction.
ii. Likelihood That Dr. Robie Will Suffer Irreparable Harm
Dr. Robie has demonstrated that he will suffer substantial financial and
reputational harm to his career if his Medicare billing privileges are revoked. See

Ram, 792 F.2d at 446 (finding losing up to one year of income during the appeals
process due to erroneous administrative decision would constitute harm that could
not be recompensed); but see Arriva Med., 2017 WL 943904, at *8 (“[T]he sole fact
that a company is losing money does not irreparable harm make.”). First, Dr. Robie
will lose a substantial number of patients. Currently, 70% of his patients are
governmentally insured. First Robie Aff. ¶ 15. If Dr. Robie’s Medicare billing
privileges are revoked, he will not be able to prescribe medications for and treat his
Medicare patients. Resp. by Pl. Ex. 4, at ¶¶ 3, 4, 6 (“Second Robie Aff.”) [ECF No. 194]. Dr. Robie has also been notified by several non-Medicare insurance companies
that they will terminate their contracts with Dr. Robie upon his revocation. Id. at ¶
13. During Dr. Robie’s period of revocation, his patients will be required to find
alternative medical providers for their medical needs. Indeed, home health agencies
have already begun contacting Dr. Robie’s patients informing them that they need to
18

find a new physician. Second Robie Aff. ¶ 5. There is no guarantee that they will come
back to Dr. Robie even if his billing privileges are reinstated. Dr. Robie’s practice
likely will not be made whole through retroactive payments. This is not only
significant financial harm, it also is essentially a gutting of Dr. Robie’s entire practice.
Additionally, Dr. Robie will lose his staff appointment at CAMC, and with that,
he will lose his peer-elected positions as Secretary/Treasurer (current) and Chief of
Staff (2019). First Robie Aff. ¶¶ 17, 18; Second Robie Aff. ¶ 12. Dr. Robie will also
have to report this revocation when he reapplies for appointment and clinical
privileges at any health care facility, and accordingly, it will create a permanent black
mark on his reputation. Second Robie Aff. ¶ 11. This is substantial damage to Dr.
Robie’s reputation, both the reputation that comes with being Chief of Staff and his
reputation more generally as a physician, which cannot be undone through
retroactive payments.
Therefore, I FIND it likely that Dr. Robie will suffer irreparable harm in
absence of temporary injunctive relief.
iii. Balance of Equities
The Supreme Court in Winter uses the phrase “balance of equities”
interchangeably with the phrase “balance of hardships.” Winter, 555 U.S. at 26–27;

see also League of Women Voters of North Carolina v. North Carolina, 769 F.3d 224,
236 (4th Cir. 2014) (using “balance of hardships”) (citing Winter, 555 U.S. at 20). In
applying this factor, the Supreme Court looked at “the most serious possible injury”
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to the parties. Winter, 555 U.S. at 26–27. Considering the most serious possible injury
to Dr. Robie in this case, it is apparent that his career as a whole is in jeopardy, and
his ability to practice his chosen profession is under substantial threat. He faces
substantial and irreparable disruptions to his practice, achievements, and reputation
that he has spent over a decade building. Considering the most serious possible injury
to the Secretary, it seems that the Secretary is faced with a delay in revoking Dr.
Robie’s Medicare billing privileges along with the financial burden of providing a
modicum of additional procedure before such revocation takes effect. The most serious
injury is much greater for Dr. Robie than for the Secretary. Therefore, I FIND that
the balance of equities favors Dr. Robie.
iv. Preliminary Injunction in the Public Interest
Dr. Robie is the sole attending physician for two assisted living facilities. First
Robie Aff. ¶ 11. He treats 121 homebound patients who are otherwise unable to travel
for medical care due to their fragile conditions, and he provides medical services to
some of the most vulnerable citizens in West Virginia in Putnam and western
Kanawha counties. Id. at ¶ 11. Dr. Robie attests that he is one of only two family
practice physicians who provide home visits to these homebound patients. Second
Robie Aff. ¶ 15. He also stated under oath that the other family practice physician
who provides these home visits is losing her Medicare billing privileges, leaving a
vulnerable population of West Virginians without access to medical care. Id. at ¶ 15.
It is clear to me that removing Dr. Robie from the medical community will hinder the
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ability of West Virginians to receive necessary health care. Therefore, I FIND that
preliminary relief is clearly in the public interest.
I FIND that Dr. Robie has shown that he is likely to succeed on the merits of
his procedural due process claim, that he is likely to suffer irreparable harm in the
absence of preliminary relief, that the balance of equities tips in his favor, and that
preliminary relief is in the public interest. Therefore, I FIND that Dr. Robie is entitled
to preliminary relief.
C. Security Requirement
Finally, I must consider whether Dr. Robie is required to provide a security
under Rule 65(c). Rule 65(c) of the Federal Rules of Civil Procedure states: “The court
may issue a preliminary injunction or a temporary restraining order only if the
movant gives security in an amount that the court considers proper to pay the costs
and damages sustained by any party found to have been wrongfully enjoined or
restrained.” Fed. R. Civ. P. 65(c). While a district court may waive the security
requirement, it is error for a district court to entirely fail to consider whether to
require a security when granting preliminary injunctive relief. See Pashby v. Delia,
709 F.3d 307, 332 (4th Cir. 2013).
In determining whether the court should require a security, I look to the
potential harm to the enjoined party. See Hoechst Diafoil Co. v. Nan Ya Plastics

Corp., 174 F.3d 411, 424 fn.3 (4th Cir. 1999). “[I]f there is an absence of proof showing
a likelihood of harm, certainly no bond is necessary.” Continental Oil Co. v. Frontier
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Refining Co., 338 F.2d 780, 782 (10th Cir. 1964); see Hoechst, 174 F.3d at 424 fn.3
(4th Cir. 1999). “In fixing the amount of an injunction bond, the district court should
be guided by the purpose underlying Rule 65(c), which is to provide a mechanism for
reimbursing an enjoined party for harm it suffers as a result of an improvidently
issued injunction or restraining order.” Hoeschst, 174 F.3d at 424 fn. 3. The Secretary
claims that it will be harmed in the amount it has to pay Dr. Robie for Medicare
services actually rendered to Medicare beneficiaries by Dr. Robie after July 10, 2017.
Absent some allegation of fraud or overbilling by Dr. Robie, it is unclear to me how
this constitutes a harm to the Secretary. The Secretary is simply delayed in starting
Dr. Robie’s one year revocation from Medicare. Nothing here prevents the Secretary
from imposing a full, one year revocation once the preliminary injunction is no longer
in effect.
Accordingly, I FIND that the Secretary has not demonstrated a likelihood of
harm. Therefore, I WAIVE the Rule 65(c) security requirement in this case.
IV. CONCLUSION
For the reasons given above, the court GRANTS in part the plaintiff’s Motion
for Preliminary Injunction [ECF No. 3]. The defendants are ENJOINED from
revoking Dr. Robie’s Medicare billing privileges until the Secretary presents this
court with evidence that Dr. Robie has been accorded due process in the form of a
meaningful opportunity to be heard consistent with this opinion or until further order
of this court. The defendants are ORDERED to immediately update their PECOS
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billing system to ensure Dr. Robie’s billing privileges are not revoked prior to such
evidence being presented before the court. This Order will be enforced upon request
by further court action.
To the extent that the plaintiff’s Motion asks for the preliminary injunction to
remain in place through the entire administrative appeals process, it is DENIED.
Once the Secretary demonstrates to the court that Dr. Robie has been afforded due
process, Dr. Robie must challenge the Secretary’s substantive decision through the
administrative process.
The court DIRECTS the Clerk to send a copy of this Order to counsel of record
and any unrepresented party.
ENTER:

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July 26, 2017