By Paige Arnold, J.D.
A physician may not have received adequate due process prior to revocation of Medicare billing privileges and was granted temporary relief from revocation, a federal district court in West Virginia ruled. The court found that the physician’s procedural due process claim would likely succeed on its merits, that the physician would suffer irreparable harm if privileges revoked, the balance of inequities tip in the physician’s favor, and that it is in the best public interest to grant temporary relief of the revocation (Robie v. Price, July 7, 2017, Goodwin, J.).
Revocation. The physician’s Medicare billing privileges were revoked for failure to provide CMS all documents requested and for providing insufficient documents. The physician provided medical services to patients in an underserviced community, including homebound patients, and as the sole physician at two assisted living facilities. He also held a peer-elected administrative position and was on several professional committees. In December 2016, CMS sent the physician a production request letter for documents and he alleged to have timely provide the records. In May 2017, the physician received the revocation letter from CMS stating documents were missing for 6 patients and insufficient documents were received on other patients. Subsequently, the physician submitted the missing documents. However, after further review, CMS reaffirmed its revocation of the physician’s billing privileges. The physician filed a due process claim in federal court and filed a motion seeking a temporary restraining order and preliminary injunction.
Temporary restraining order. The court found the physician was not given due process at this point in the case, was likely to succeed on merits of his due process claim, and was entitled to additional procedural safeguard prior to the revocation of his billing privileges. The court reasoned that the physician was not given the opportunity to state his position in person and CMS only provided an explanation with conclusions that lacked details as to why the documents he provided were insufficient.
Harm. Given that 70 percent of the physician’s patients received government benefits and that he would have to resign from his administrative position and professional committees, the court found that the physician would suffer irreparable harm financially and to his career. The court further reasoned that the balance of inequities favored the physician. There was no allegation of wrongdoing made against the physician and the financial burden to CMS of the additional procedure prior to revocation would be minimal. Finally, the granting temporary relief of the revocation of privileges was in the public’s best interest because patients in this underserved area would be vulnerable to not receiving medical care needed. Specifically, the physician provided medical services in an area with limited resources, was one of only two physicians in this remote area that visited homebound patients, and the sole medical provider at two assisted living facilities.
The physician’s motions were granted and CMS was enjoined from revoking his Medicare Billing Privileges for 14 days for further proceedings.
The case number is No. 2:17-cv-03089.
Attorneys: Alexander Macia (Spilman Thomas & Battle, PLLC) for E. Michael Robie. Fred B. Westfall, Jr., U.S. Attorney's Office, for Thomas E. Price.
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