Morgan v. Sebelius
Filing
18
MEMORANDUM OPINION AND ORDER denying 14 Brief in Support of the Complaint; granting 15 MOTION for Summary Judgment, and the decision of the MAC is Affirmed. Signed by Judge Robert C. Chambers on 4/9/2012. (cc: attys; any unrepresented party) (skm)
IN THE UNITED STATES DISTRICT COURT FOR
THE SOUTHERN DISTRICT OF WEST VIRGINIA
HUNTINGTON DIVISION
BRETON LEE MORGAN, M.D.,
Plaintiff,
v.
CIVIL ACTION NO. 3:11-0300
KATHLEEN SEBELIUS,
Secretary of Department of Health
and Human Services,
Defendant.
MEMORANDUM OPINION AND ORDER
Currently before the Court are Plaintiff’s Brief in Support of the Complaint (ECF No. 14)
and Defendant’s Motion for Summary Judgment (ECF No.15).1 For the reasons set forth herein,
Defendant’s Motion is GRANTED; Plaintiff’s Motion is DENIED.
Background
Plaintiff, Breton Lee Morgan, is a physician who provides services to Medicare beneficiaries.
In 2006, Medicare received complaints that Dr. Morgan was improperly billing Medicare.
Administrative Record, ECF No. 7, at 1115.2 Consequently, Medicare requested medical records
of Dr. Morgan’s patients and audited Dr. Morgan’s Medicare billings. AdvanceMed, the contractor
engaged by Medicare to conduct the audit, found that he had overbilled or failed to properly
document services billed to Medicare. A.R. at 1154–55. In the letter describing the results of the
audit, AdvanceMed informed Dr. Morgan that it “may proceed with a Statistical Sample for
1
The Court treats both as motions for summary judgment.
2
Citations to the administrative record will be referenced as “A.R.”
Overpayment Estimation.” A.R. at 1156. AdvanceMed then began the process of obtaining a
statistically valid sample of the services for which Dr. Morgan had billed in order to estimate any
overpayment. Dr. Morgan does not dispute the statistical validity of that sample, which included
266 claims processed between March 1, 2004 and June 26, 2006. A.R. at 1026. AdvanceMed then
attempted to contact Dr. Morgan to request medical records to support the claims in the sample. Dr.
Morgan was unable to submit any patient records because he was serving a prison sentence at that
time after pleading guilty to obtaining a controlled substance by fraud in violation of 21 U.S.C. §
843(a)(3). In the absence of any documentation, AdvanceMed concluded that none of the claims
in the sample were documented and determined that Dr. Morgan had received a total overpayment
of $614, 222.95. A.R. at 1026–27. Then, after release from prison, Dr. Morgan appealed this
determination and submitted medical records to support his claims. Based on the new records, Dr.
Morgan’s overpayment was revised down to $315,914.40. A.R. at 612–15. Dr. Morgan appealed
this revised overpayment to Q2 Administrators (“Q2”), the next level of administrative review. At
this level, Dr. Morgan submitted additional medical records. His claim was reviewed by a panel of
medical professionals consisting of two doctors and a nurse, which largely upheld the original
determination but allowed payment on an additional 18 claims. A.R. at 557–61. Dr. Morgan then
appealed to an Administrative Law Judge (“ALJ”), where he submitted more additional records,
testified at two hearings, and filed post-hearing briefings. The ALJ made extensive and detailed
factual findings with regard to each claim, ultimately reducing the overpayment to $61,922. Dr.
Morgan appealed the ALS’s determination to the Medicare Appeals Council (“MAC”), which
rejected his claim that AdvanceMed improperly found a high level of payment error, affirmed the
-2-
decision of the ALJ, and held that a determination of a high level of payment error “is not subject
to administrative or judicial challenge.” A.R. at 7.
Discussion
Dr. Breton identifies the sole issue before the Court as “whether the Secretary committed
error by calculating an alleged overpayment prior to determining a sustained or high level of
payment error pursuant to Section 1893(f)(3) of the Social Security Act.” Pl.’s Br. 1, ECF No. 14.
The central thrust of this argument is that his repayment amount has been so drastically reduced
during the course of Dr. Morgan’s appeals, from $614, 222.95 to $61,922, that the reduced amount
cannot justify a finding of a sustained or high level of payment error. While this is intuitively
appealing, Plaintiff’s argument ultimately fails.
Section 1893 of the Social Security Act, codified at 42 U.S.C. § 1395ddd, requires a
determination of a sustained or high level of payment error in order to use extrapolation to determine
overpayment.
The immediately following sub-paragraph provides that “there shall be no
administrative or judicial review . . . of determinations by the Secretary of sustained or high levels
of payment errors under this paragraph.” 42 U.S.C. § 1395ddd(f)(3). This language was relied on
by the ALJ in rejecting Plaintiff’s challenge to the use of extrapolation and by the MAC in affirming
the ALJ. It was raised in the Government’s cross-motion, and Plaintiff has not filed a responsive
memorandum or reply in support of his own motion. This statutory language clearly and
unequivocally prohibits judicial or administrative review of a determination of a high level of
payment error. Even if this issue were subject to review, Plaintiff cannot show that a determination
of a sustained or high level of payment error is in error. The most recent ALJ decision, which
resulted in the revised overpayment of $61,922, found that Dr. Morgan received overpayment on
-3-
71 of 266, or 36.7% of claims in the sample that was reviewed. Finally, the record clearly reflects
that the reductions on which Plaintiff relies are the result of Plaintiff’s piecemeal production of
medical records rather than any error in calculation on the part of Medicare or its contractors.
Conclusion
In light of the foregoing, Plaintiff’s Motion (ECF No. 14) is DENIED; the United States’
Motion for Summary Judgment (ECF No. 15) is GRANTED, and the decision of the MAC is
AFFIRMED. The Court DIRECTS the Clerk to send a copy of this written Opinion and Order to
counsel of record and any unrepresented parties.
ENTER:
April 9, 2012
ROBERT C. CHAMBERS
UNITED STATES DISTRICT JUDGE
-4-
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?