Health Reform WK-EDGE incentive payments lost due to CMS’ clerical error
Thursday, June 7, 2018

incentive payments lost due to CMS’ clerical error

By Sheila Lynch-Afryl, J.D., M.A.

In a decision the court characterized as not just, but "one that the law requires," the Court of Federal Claims found that CMS did not owe a physician almost $40,000 in Primary Incentive Program (PCIP) payments. Even though the physician provided primary care services, CMS miscoded his specialty, and the PCIP statute prohibits review concerning the identification of primary care physicians. Accordingly, the court lacked subject matter jurisdiction (Feiss v. United States, No. 17-1263C, May 30, 2018).

PCIP. Soc. Sec. Act §1833(x), as added by Sec. 5501(a)(1) of the Patient Protection and Affordable Care Act (ACA) (P.L. 111-148), established the PCIP, which provided for a 10 percent bonus for services furnished by a primary care physician between January 1, 2011, and December 31, 2015. The statute defines a primary care practitioner as a physician (or certain practitioners) who has a primary specialty designation of family medicine, internal medicine, geriatric medicine, or pediatric medicine, for whom primary care services accounted for at least 60 percent of allowed charges. Soc. Sec. Act §1833(x)(4) provides for no administrative or judicial review respecting the identification of practitioners under that section.

Feiss’ practice. Dr. Robert Feiss has been a primary care physician since 2002, and 90 percent of his allowed charges since then have been for primary care services. In 2011 he confirmed his PCIP eligibility, but after 18 months of nonpayment his contractor informed him that he was ineligible for the program because his specialty identification was miscoded in CMS’ system as "emergency medicine" rather than "primary care."

Feiss sought a hearing, but the HHS administrative law judge dismissed the request on the grounds that section 1833(x) prohibits administrative review. The Departmental Appeals Board upheld the dismissal (see Medicare supplier had no right to hearing on ‘primary care provider’ determination, April 19, 2017). Feiss filed a complaint in federal court against HHS alleging breach of implied contract and of Soc. Sec. Act §1833(x) and its implementing regulation, 42 C.F.R. §414.80, and seeking PCIP payments for 2011, 2012, 2013, and three quarters of 2014. HHS filed a motion to dismiss.

Subject matter jurisdiction. The court lacked subject matter jurisdiction to entertain Feiss’ complaint because section 1833(x)(4) prohibited judicial review respecting the identification of primary care practitioners. While Feiss argued that he sought review of CMS’ nonpayment of PCIP payments, not of CMS’ "identification of primary care practitioners," the nonpayment was due to the misidentification of his primary care specialty as emergency medicine. While Feiss was not at fault for the error, his complaint exclusively revolved around his identification as a primary care practitioner, "the very type of complaint Congress precludes this Court from reviewing."

Breach of implied contract. Feiss also claimed that the Social Security Act and regulations created an implied contract between him and CMS that required him to supply primary care services in exchange for full, timely payments. There is, however, a general presumption that statutes are not intended to create any vested contractual rights.

The case is No. 17-1263C.

Attorneys: Natasha A. Saggar Sheth (Nossaman, LLP) for Robert E. Feiss. Sean King, U.S. Department of Justice, for the United States.

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