Bertschland Family Practice Clinic, P.C. v. Thompson
IP 01-0562-C H/F Bertschland Fam Prc v Thompson
Judge David F. Hamilton
Signed on 6/4/02
NOT INTENDED FOR PUBLICATION IN PRINT
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
BERTSCHLAND FAMILY PRACTICE )
CLINIC, PC, )
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Plaintiff, )
vs. )
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SECRETARY OF HEALTH & HUMAN ) CAUSE NO. IP01-0562-C-H/G
SERV, )
)
Defendant. )
B Nelson G Grills
Attorney at Law
315 Circle Tower Bldg
55 Monument Circle
Indianapolis, IN 46204
Thomas E Kieper
United States Attorney’s Office
10 West Market Street, Suite 2100
Indianapolis, IN 46204-3048
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
BERTSCHLAND FAMILY PRACTICE
CLINIC, P.C.,
Plaintiff,
v.
TOMMY G. THOMPSON,
Secretary of Health and Human Services,
Defendant.
)
)
)
)
)
)
)
)
)
)
)
CAUSE NO. IP 01-562-C H/F
ENTRY ON JUDICIAL REVIEW
This is an action for judicial review of a decision by the Secretary of Health
and Human Services denying a claim by plaintiff Bertschland Family Practice
Clinic, P.C. (“Bertschland”) for payment of interest on a long-disputed amount of
reimbursement for medical services covered by the federal Medicare program.
Bertschland accepted Medicare payments for laboratory services it provided
to patients in 1989. During an administrative review process that spanned more
than 10 years, Bertschland first was required to repay Medicare about $20,000
after Medicare concluded that certain services for which it had paid Bertschland
were not covered by the program. This repayment amount is known as an
“overpayment” under Medicare regulations. Bertschland paid Medicare that
amount and then pursued appeals. After some interim reductions to the
overpayment, on August 5, 1997, an administrative law judge (“ALJ”) determined
that Bertschland was liable for an overpayment of only about $800. On
December 11, 1998, the ALJ determined that Medicare owed Bertschland
interest on the amount that Bertschland was forced to repay in error for the
period beginning with the ALJ’s August 5, 1997 decision that reduced the
overpayment. Because Bertschland already had repaid the overpayment in full
long before the ALJ ’s decision, Medicare then owed Bertschland a partial
reimbursement of the overpayment. This reimbursement amount is known as
an “underpayment” under Medicare regulations.
Bertschland does not challenge the amount of the overpayment it
ultimately was required to repay, but it seeks judicial review of the ALJ’s
December 11, 1998 decision on the interest issue, which became the final
decision of the Secretary of the United States Department of Health and Human
Services, the agency that supervises Medicare. Bertschland contends that it is
entitled to interest on the underpayment for the period beginning September 28,
1990 – the date of the original but erroneous overpayment decision by Medicare.
As explained below, the court affirms the Secretary’s decision. Under 42 U.S.C.
§ 1395l and 42 C.F.R. § 405.376 (1995), interest was not payable to Bertschland
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until the period beginning August 5, 1997, the date when the ALJ made a “final
determination” that there had been an underpayment.
Background
The Medicare program has three parts: hospital insurance (“Part A”),
supplemental medical insurance (“Part B”), and Medicare+Choice (“Part C”). The
Secretary of Health and Human Services administers Medicare through the
Centers for Medicare and Medicaid Services (“CMS”), a component agency of the
United States Department of Health and Human Services. CMS formerly was
known as the Health Care Financing Administration (“HCFA”). See 66 Fed. Reg.
36583, 36584 (July 12, 2001). Congress authorized the Secretary to contract
with private entities (usually insurance companies) for the performance of certain
routine claim processing functions. 42 U.S.C. §§ 1395h & 1395u. These
contractors are called “fiscal intermediaries” under Part A and “carriers” under
Part B. See 42 U.S.C. §§ 1395h(A) & 1395u(a). This matter arises under Part B,
42 U.S.C. §§ 1395j through 1395w-4, which covers, among other things, certain
costs associated with physician services, hospital outpatient services, lab services
and diagnostic tests, and some home health services.
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Payment under Medicare is generally made directly to the provider or
supplier of covered services. When a carrier receives a request for reimbursement
by a service provider, the carrier makes an initial determination as to whether the
claim is payable and, if so, the amount due. To determine whether it should
make payment, a carrier may use postpayment audits or prepayment utilization
reviews. Most of the millions of Medicare claims are reviewed on a postpayment
“honor system.” The carrier pays the claim upon receipt of a minimum set of
information and late r audits the physician’s or supplier’s underlying
documentation of medical necessity and other such requirements. In contrast,
in prepayment utilization reviews, providers must submit the documentation that
justifies payment for each billed service before the carrier will make paymen t.
S e e Farkas v. Blue Cross Blue Shield of Michigan, 803 F. Supp. 87, 91 (E.D.
Mich. 1992) (discussing prepayment v. postpayment review) . In this case,
postpayment review was used. See R. 23.
The Part B administrative review process has several layers. A medical
provider who does not agree with a carrier’s initial determination may ask the
carrier to reconsider. 42 C.F.R. § 405.807. Upon completion of that review, if the
provider remains dissatisfied with the carrier’s decision and the amoun t in
controversy is $100 or more, the provider may request a non-adversarial carrier
hearing before a hearing officer. 42 C.F.R. §§ 405.815 & 405.821. After the
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carrier hearing, if the amount in controversy is $500 or more, the provider may
request a hearing before an ALJ. 42 C.F.R. § 405.855.
Upon receipt of an adverse ALJ decision, a dissatisfied party may ask for
discreti onary administrative review by, in this case, the Medicare Appeals
Council. If the Medicare Appeals Council declines review, the ALJ’s decision
stands as the final decision of the Secretary. 20 C.F.R. § 404.981. After
exhausting administrative remedies, if the amount in controversy is $1,000 or
more, a provider may seek judicial review of the Secretary’s final decision in
federal district court. 42 U.S.C. §§ 405(g) & 1395ff(b)(2)(B); 42 C.F.R. § 405.857.1
Procedural History
Plaintiff Bertschland Family Practice Clinic, P.C. submitted claims for
laboratory tests performed on 194 patients between April 1, 1989 and October
1, 1989. R. 23. The Carrier2 initially reimbursed the plaintiff for the tests but
1The Secretary has pointed out that the Departmental Appeals Board (DAB)
has taken over from the Medicare Appeals Council the authority to review ALJ
decisions in Medicare Part B cases. See 62 Fed. Reg. 25844, 25849 (May 12,
1997). The court refers to the Medicare Appeals Council because the DAB acted
under the name “Medicare Appeals Council” in this case. See R. 1, 7.
2The Carrier first was Associated Insurance Companies, Inc. and then
AdminaStar Federal, Inc. The court refers to both companies as the “Carrier.”
Both were acting on behalf of the Secretary of Health and Human Services who
(continued…)
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later concluded based on a postpayment audit that most of the tests were not
covered by Medicare. Id. In performing the audit, the Carrier used statistical
sampling. The Carrier examined claims for 15 randomly selected beneficiaries
and disallowed 42 of the 48 tests performed for those 15 beneficiaries. The
Carrier then divided the total cost of the disallowed services by the sample size
and multiplied the quotient by 194 to determine that Bertschland had been
overpaid $21,570.86 for the claims submitted. R. 147. The Carrier informed
Bertschland of the overpayment in a letter dated September 28, 1990. R. 23.
The letter stated that interest would begin to accrue on the overpayment in 30
days. R. 24. The overpayment amount was reduced to $20,637.72 on or about
October 23, 1990. See R. 28-29. Bertschland repaid the overpayment in full on
October 25, 1990. R. 29.
In a post-payment review, a Medicare hearing officer found that the
overpayment should have been reduced by $94.44. This amount was refunded
to Bertschland on or about July 31, 1991. See R. 31. The refund did not include
any interest to Bertschland.
2(…continued)
is the real party in interest. See 42 C.F.R. § 421.5(b).
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Bertschland appealed the overpayment determination. See R. 29. On
June 10, 1993, ALJ Stephen E. Davis issued a decision finding that some of the
disallowed laboratory tests were in fact covered by Medicare. R . 220 -88 . H e
directed the Carrier to recompute the overpayment and to refund to Bertschland
the difference between the new overpayment and the $20,637.72 that
Bertschland previously had paid. Based on the ALJ’s decision, the Carrier
refunded $6,826.86 to Bertschland. R. 32. The refund amount did not include
any interest to Bertschland.
The ALJ ’s June 10, 1993 decision was vacated by the Medicare Appeals
Council and remanded to the ALJ. See R. 37. This Appeals Council decision is
missing from record. According to the Secretary, the Appeals Council issued its
remand order on February 10, 1995. See Def. Br. at 5. According to the ALJ’s
later decision, the Appeals Council ordered the ALJ to develop the record,
reconsider certain issues, conduct further proceedings, and issue a new decision.
R. 37.
On August 5, 1997, the ALJ found on remand that the statistical sample
the Carrier use d to determine the amount of overpayment had not been
constructed in accordance with the guidelines in the Medicare Carriers’ Manual.
Thus, he reversed the portion of the overpayment that was calculated by
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extrapolating from the sample, and he considered only the individual laboratory
tests given to the beneficiaries in the sample. After doing so, he concluded that
some of the individual services should have been covered, and so the final
overpayment was only $861.53. R. 107. The ALJ directed the Carrier to refund
to Bertschland the remainder of what it had been charged. At that point in time,
that remainder had become an “underpayment” under the Medicare regulations
because Bertschland had earlier repaid Medicare, and the Carrier therefore owed
that amount back to Bertschland due to the ALJ’s decision. The ALJ also
directed the Carrier to calculate any interest tha t m igh t be due on the
underpayment. R. 106.
The Carrier determined that the underpayment owed to Bertschland at
that time totaled $12,854.89. R. 135. On January 5, 1998, the Carrier sent
Bertschland a letter explaining that no interest was due, in the Carrier’s view,
because payment would be made within 30 days of the “final determination,” the
relevant term under the Medicare statute and its implementing regulations.
According to the Carrier, the final determination occurred with the Carrier’s
calculation of the amount of the underpayment in its January 5, 1998 letter. It
is not clear if a check was enclosed with the January 5, 1998 letter or if payment
was made within the next 30 days.
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Bertschland disagreed with the Carrier on the interest issue. In a letter
dated February 23, 1998, Bertschland’s counsel asked the ALJ to find that
interest on the underpayment had been accruing since September 28, 1990 –
the date the Carrier first notified Bertschland of the original overpayment. R .
118-19.
On December 11, 1998, the ALJ issued a Supplemental Decision finding
that the “final determination” from which interest on the underpayment accrued
was neither the date when the Carrier made a determination that there was an
overpayment (as Bertschland argued) nor the date when the Carrier calculated
the amount of the underpayment (as the Carrier argued). Relying on 42 C.F.R.
§ 405.376 (c)(1)(ii)(C) (1995) and a December 14, 1993 letter that the Acting
Branch Chief for the Financial Management Branch of Medicare sent to all
contractors, the ALJ found that his August 5, 1997 decision was the “final
determination” of the matter because it reduced the amount of the overpayment
below the amount that HCFA (now CMS) had collected. R. 128.3 The ALJ
instructed the Carrier to pay Bertschland interest on $18,555.93 (representing
the payment Bertschland originally made minus the amount the overpayment
3The agency letter clarified that ALJ decisions that reduce the amount of
an overpayment that a provider has repaid are final determinations that trigger
interest obligations under 42 C.F.R. § 405.376. R. 130-31. In contrast, the letter
explained, ALJ decisions on other issues, such as Medicare coverage, are not
“final determinations” for interest purposes. Id.
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was eventually determined to be) from August 5, 1997 until the date the money
was refunded. In fact, $6,921.30 of that sum had already been refunded to
Bertschland before August 5, 1997. R. 135.
Bertschland appealed the ALJ ’s December 11, 1998 Supplemental
Decision to the Medicare Appeals Council. On November 23, 1999, the Appeals
Council vacated the supplemental decision and remanded the matter to the
Office of Hearings and Appeals because it was unable to obta in the comp lete
record. R. 8. The Appeals Council wrote that the case would be assigned to an
ALJ on remand for reconstruction of the existing record or the development of a
new record, including a de novo hearing. The remand order also stated that the
Appeals Council would vacate its remand order and consider Bertschland’s
request for review if the file was located.
On June 20, 2000, an attorney adviser from the Office of Hearings and
Appeals returned the file to the Departmental Appeals Board and requested
expedited review of the matter. R. 5-6. His letter explained that the plaintiff’s
attorney was not interested in having an ALJ conduct an appeals hearing on the
interest issue. On August 3, 2000, Bertschland’s counsel directly informed the
Departmental Appeals Board that his client was willing to have the ALJ decide
the interest issue on the briefs alone without any hearing. R. 3.
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On February 28, 2001, the Medicare Appeals Council issued its Action of
Medicare Appeals Council on Request for Review. R. 1. The Appeals Council
denied Bertschland’s request for review and wrote that “the Administrative Law
Judge ’s decision stands as the final decision of the Secretary.” The Appeals
Council did not acknowledge that its November 23, 1999 order had vacated the
ALJ ’s December 11, 1998 supplemental decision on the interest issue. However,
it appears to the court, and the parties agree, that the Appeals Council’s decision
denying further review intended to make the ALJ’s December 11, 1998
Supplemental Decision the Secretary’s final decision on the interest issue.4
4The court discussed the February 28, 2001 Medicare Appeals Council
order with the parties’ counsel during a conference on April 19, 2002. After the
conference, the Secretary filed a supplemental statement explaining that the
ALJ ’s December 11, 1998 Supplemental Decision was in fact the Secretary’s final
decision on the claim for interest. Such a final decision is a prerequisite for the
court’s subject matter jurisdiction over this matter under 42 U.S.C. § 405(g).
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Preliminary Matters
Plaintiff Bertschland filed a submission entitled “Correction of the Record,”
which seeks to add to the administrative record three documents marked as
Exhibits G, H, and I. These documents were exhibits to a brief that plaintiff’s
counsel filed with the Office of Hearings and Appeals following the ALJ ’s
December 11, 1998 Supplemental Decision. That brief appears in the record at
R . 12-22. According to the plaintiff, Exhibits G, H, and I were omitted from the
record. However, although separated from the plaintiff’s brief, these documents
appear in the record before the court at R . 108-26. Bertschland’s motion to
amend the record is denied as moot.
Standard of Review
The Medicare Act provides for the judicial review of final decisions by the
Secretary of Health and Human Services regarding the amounts of benefits paid
under Medicare B. See 42 U.S.C. § 1395ff(a) & (b).5 The deferential “substantial
evidence” standard of review for Social Security benefit appeals applies. See
42 U.S.C. § 1395ff(b), incorporating by reference 42 U.S.C. § 405(g). When the
542 U.S.C. § 1395ff was amended on December 21, 2000 by P. L. 106-554
(2000). Those amendments will apply with respect to initial determinations made
on or after October 1, 2002. See 42 U.S.C. §§ 1395ff note & 1320c-3 note. The
amended §1395ff continues to incorporate the judicial review provisions of
42 U.S.C. § 405(g).
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Medicare Appeals Council denies review of an ALJ ’s decision, the ALJ’s decision
becomes the final decision of the Secretary. See 20 C.F. R. § 404.981; see also
Hende rson v . Ap fe l , 179 F.3d 507, 512 (7th Cir. 1999) (applying the same
principle in a Social Security benefits case). If the Secretary’s findings of fact are
supported by substantial evidence, the findings must be upheld by a reviewing
court. 42 U.S.C. § 405(g). A reversal and remand may be required if the ALJ
committed an error of law, Nelson v. Apfel, 131 F.3d 1228, 1234 (7th Cir. 1997),
or if the ALJ based the decision on serious factual mistake s or om iss ions.
Sarchet v. Chater, 78 F.3d 305, 309 (7th Cir. 1996). Here, there are no factual
disputes. The question on judicial review is the correct interpretation of the
M edicare statute and regulation that govern the payment of interest on
underpayments.
The Secretary asserts that his interpretation of the Medicare statute and
regulation at issue is entitled to deference under Chevron U.S.A., Inc. v. Natural
Resources Defense Council, Inc., 467 U.S. 837, 842-45 (1984) (reviewing courts
must give agency interpretation de ference with regard to a statute within its
purview so long as it is a permissible construction of the statute). However, in
United States v. Mead Corp., the Supreme Court found that not all of an agency’s
interpretations of the laws it administers are entitled to “C h e v r o n deference.”
533 U.S. 218, 226 (2001). The Court explained: “administrative implementation
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of a particular statutory provision qualifies for Chevron deference when it appears
that Congress delegated authority to the agency generally to make rules carrying
the force of law, and that the agency interpretation claiming defere n ce was
promulgated in the exercise of that authority.” Id. at 226-227. A showing of such
delegation of authority may be made through an agency’s power to engage in
adjudication or notice-and-comment rulemaking. Id.
The Court recently has clarified that an agency interpretation reached
through less formal means does not necessarily deprive that interpretation of
Chevron deference. Barnhart v. Walton, – U.S. –, 122 S . Ct. 1265, 1271-72 (2002)
(absence of notice-and-comment rulemaking is not dispositive; the court applied
Chevron deference in light of factors including the “interstitial nature of the legal
question,” the agency’s expertise, the importance of the issue to the
administration of the statute, the complexity of that administration, and the
agency’s long-time consideration of the issue); see also Indiana Family & Soc ia l
Services Admin. v. Thompson, 286 F.3d 476, 480 (7th Cir. 2002) (agency
interpretations subject to notice-and-comment or “comparable formalities” qualify
for Chevron deference). Even if agency interpretations do not meet the standards
for Chevron deference, some degree of deference still may be appropriate,
depending upon factors such as the specialized experience and broader
investigations and information available to the agency, and the value of
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uniformity in its administrative and judicial understandings of what a national
law requires. Mead, 533 U.S. at 234-35, citing Skidmore v. Swift, 323 U.S. 134,
139-40 (1944); see also American Federation of Government Employees v.
Rumsfeld, 262 F.3d 649, 658 (7th Cir. 2001) (agency policy expressed in internal
memoranda was not entitled to Chevron deference but deserved “respect”).
The current scope and vitality of Chevron do not, however, affect the
outcome of this case . This matter concerns primarily the Secretary’s
i nterpretation of an agency regulation. Such an interpretation is entitled to
“substantial deference,” as the Court stat ed in Thomas Jefferson University v.
Shalala , 512 U.S. 504, 512 (1994). Mead and Barnhart v. Walton do not
undermine such deference to an agency’s interpretation of its own regulations.
“Courts grant an agency’s interpretation of its own regulations considerable
leeway.” Barnhart v. Walton, – U.S. at –, 122 S . Ct. at 1269, c i t i n g Aue r v .
Robbins, 519 U.S. 452, 461 (1997). In any event, the plain language of the
regulation supports the Secretary’s decision, so the precise degree of deference
to the Secretary does not affect the outcome of the case.
Discussion
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Plaintiff Bertschland Family Practice Clinic contends that the Secretary’s
decision denying interest on the underpayment from the time plaintiff received
notice of the partially erroneous overpayment violates the controlling Medicare
statute and regulation.6 The Secretary contends that the ALJ’s Supplemental
Decision on the interest issue was correct under the Medicare statute and
regulations and that no interest is due for the period before the ALJ’s August 7,
1997 decision that dramatically reduced the amount of the overpayment to
Bertschland.7
Bertschland’s statutory claim turns on the question of when there was a
“final determination” that Bertschland had repaid an overpayment to Medicare
in excess of the amount actually owed. Stated differently, the issue is when
6Bertschland also had argued earlier that the Secretary’s decision violated
the takings clause of the Fifth Amendment of the United States Constitution, but
Bertschland has abandoned that claim. In response to the Secretary’s brief,
Bertschland wrote that the takings clause issue “need not be resolved.” See Pl.
Reply Br. at 21.
7The Secretary further argues that any other construction of the controlling
Medicare statute and regulation would violate the “no interest rule,” which holds
that sovereign immunity bars the payment of interest by the federal government
unless the interest is expressly authorized by s ta tu te . See , e.g., Library of
Congress v. Shaw, 478 U.S. 310, 311 (1986). Because Bertschland has limited
its claim to the statutory issue alone, there is no need to consider the sovereign
immunity issue separately.
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there was a final determination that there was an underpayment to Bertschland.
The relevant Medicare statute provides:
(j) Accrual of interest on balance of excess or deficit not paid
Whenever a final determination is made that the amount of payment
made under this part [42 U.S.C. §§ 1395j et seq. (supplementary
medical insurance program for the aged and disabled)] either to a
provider of services or to another person pursuant to an assignment
under section 1395u(b)(3)(B)(ii) of this title was in excess of or less
than the amount of payment that is due, and payment of such
excess or deficit is not made (or effected by offset) within 30 days of
the date of the determination, interest shall accrue on the balance
of such excess or deficit not paid or offset (to the extent that the
balance is owed by or owing to the provider) at a rate determined in
accordance with the regulations of the Secretary of the Treasury
applicable to charges for late payments.
42 U.S.C. § 1395l (j). See also 42 U.S.C. § 1395g(d)(containing identical provision
for payments made under 42 U.S.C. § 1395c et seq. (hospital insurance benefits
for the aged and disabled)).
42 C.F.R. § 405.376 (1995) is the controlling Medicare regulation.8 In
general, as stated in Section 1395l , the regulation provides that HCFA (now CMS)
will charge interest on ove rpayments and pay interest on underpayments to
service providers if the payment in question is not made within 30 days.
842 C.F.R. § 405.376 (1995) has been renumbered 42 C.F.R. § 405.378,
although its substantive provisions and organization have remained the same.
See 61 Fed. Reg. 63740, 63745 (Dec. 2, 1996). The ALJ and the parties have
cited the 1995 version of the regulation.
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42 C.F.R. § 405.376 (b)(1) & (2). Tracking the language of Section 1395l , the
regulation specifies that interest will accrue from the date of the “final
determination” of the overpayment or underpayment. 42 C.F.R. § 405.376 (b)(2).
In relevant part, the regulation defines “final determination” as:
(A)
(B)
(C)
A written determination that an overpayment exists and a
written demand for payment;
A written determination of an underpayment; or
An Administrative Law Judge (ALJ) decision that reduces the
amount of an overpayment below the amount that HCFA has
already collected.
42 C.F.R. § 405.376 (c)(1)(ii)(C).
The ALJ determined that his August 7, 1997 decision was the “final
determination” of the underpayment, which triggered an obligation to pay
interest under 42 U.S.C. § 1395l and 42 C.F.R. § 405.376. R. 128. The court
agrees. This situation falls squarely within the definition of final determination
contained in subsection (C) of the regulation: the ALJ’s August 7, 1997 decision
“reduce[d] the amount of an overpayment below the amount that HCFA ha[d]
already collected.” 42 C.F.R. § 405.376 (c)(1)(ii)(C).9
9The Carrier took a different position before the ALJ. As explained in the
ALJ ’s Supplemental Decision, the Carrier had argued that a “final determination”
of the underpayment occurred only when it computed the amount of the
(continued…)
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Bertschland contends that interest on the underpayment began accruing
on September 28, 1990 when the Carrier first notified it of the overpayment.
Bertschland relies on the regulation’s definition (A) of “final determination,”
which pertains to overpayments. See 42 U.S.C. § 405.376(c)(1)(ii)(A) (defining
“final determination” as “a written determination that an overpayment exists and
a written demand for payment”). Bertschland also has cited language from the
regulation that contains further guidance on the interest that accrues on
overpayments: “if a carrier makes a final determination that an overpayment to
a physician or supplier exists, interest will accrue beginning with the date of
such final determination. Interest will continue to accrue during periods of
administrative and judicial appeal and until final disposition of the claim.” 42
U.S.C. § 405.376(e)(1). In addition, Bertschland points to § 405.376(h)(2), which
states: “If an overpayment or an underpayment determination is reversed
administratively or judicially, and the reversal is no longer subject to appeal,
appropriate adjustments will be made with respect to the overpayment or
underpayment and the amount of interest charged.”
9(…continued)
underpayment as reflected in its letter to Bertschland dated January 5, 1998.
The Carrier argued to the ALJ that no interest was due because the
underpayment was to be repaid within 30 days of the letter. See R. 127. It is
unclear exactly when Bertschland received the underpayment reimbursement,
although he has not alleged he was not repaid.
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Bertschland admits that part (C) of the regulation’s definition o f “ f ina l
determination,” which pertains to an ALJ’s decision that converts an overpayment
to an underpayment, applies to its claim. See Pl. Br. at 12. However,
Bertschland’s improbable theory is that while liability for interest did not attach
until the ALJ’s decision under definition (C), the period during which interest
accrued began years earlier when the overpayment first was assessed.
Bertschland’s construction of 42 C.F.R. § 405.376 is inconsistent with the
regulation’s plain language. By their express terms, §405.376(c)(1)(ii)(A) and
§ 405.376(e)(1) apply to overpayments, not underpayments. Bertschland,
through its attempts to blur the distinctions between overpayments and
underpayments under these parts of the regulation, seeks to read a symmetry
into the regulation that simply is not there. Bertschland is correct that the
regulation would have required it to pay interest on the overpayment after 30
days even while Bertschland was challenging the overpayment. However, the
converse is not true for the government. Under § 405.376(c)(1)(ii)(C), liability for
interest on an underpayment which results from the reduction of an
overpayment by an ALJ is triggered only by the ALJ’s decision. See Nat iona l
Med ica l Enterprises v. Sullivan, 960 F.2d 866, 869 (9th Cir. 1990) (rejecting
argument that erroneous “notice of program reimbursement” triggered interest
obligation under 42 U.S.C. § 1395g(d) & 42 C.F.R. § 405.376 (c)(1)(i) (1990):
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“Congressional intent was not, as [plaintiff] contends, that providers receive
interest for the years it takes to resolve disputes over Medicare reimbursement.”).
In addition, the language of § 405.376(h)(2) regarding “adjustments” to “the
amount of interest charged” in the case of a reversal of an overpayment or
underpayment does not apply to Bertschland’s claim for interest. As the Second
Circuit has explained, “the mention of subsequent judicial decisions relates only
to stopping rather t h a n starting the accrual of interest.” Cosgrove v. Sullivan,
999 F.2d 630, 633 (2d Cir. 1993) (holding that judicial decisions are not “final
determinations” under 42 C.F.R. § 405.376). The same reasoning applies to
subsequent administrative decisions.
The regulation’s “legislative” history further supports the Secretary’s
construction of 42 C.F.R. § 405.376. The agency considered and rejected the very
argument that Bertschland makes here:
Comment: Three commenters stated that in those cases where an
overpayment has been reversed on appeal, no interest has been paid
to the provider or supplier for the period during which the appeal
was in process. The commenters believe that the providers and
suppliers should receive interest payments on monies withheld by
HCFA for an overpayment that is later determined not to exist.
Response: As stated in the proposed rule, if findings are reversed or
changed upon administrative or judicial review, any in t e r e s t
erroneously collected will be refunded to the provider or supplier.
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Howeve r, HCFA can only pay interest or otherwise disburse funds
when the payment is authorized by law. We are not authorized to
pay interest on collected amounts that are later paid to the provider or
supplier when a determination is made that a n overpayment does not
exist. As provided by section 1815(d) and 1833(j) of the Act, we will
pay interest if the provider or supplier is not paid in full within 30
days of the determination that money is due the provider or
supplier. Consequently, interest payments on monies withheld
would not begin until 30 days after the determination of an
erroneous collection is made.
56 Fed. Reg. 31332, 31333 – 34 (July 10, 1991) (emphasis added).
Thus, under 42 U.S.C. § 1395l and 42 C.F.R. § 405.376, the ALJ’s
August 5, 1997 decision that reduced the amount of the overpayment
Bertschland already had repaid was the “final determination” that triggered an
obligation to pay interest if the underpayment was not refunded within 30 days.
The ALJ ’s December 11, 1998 Supplemental Decision is affirmed. The Secretary
is responsible for paying Bertschland interest on the amount of the
underpayment due on August 5, 1997 only for the period beginning 30 days after
the final determination.
Conclusion
For the reasons discussed above, the Secretary’s decision is AFFIRMED.
Final judgment will be entered accordingly.
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DAVID F. HAMILTON, JUDGE
United States District Court
Southern District of Indiana
So ordered.
Date: June 4, 2002
Copies to:
Nelson G. Grills
Walker & Grills
55 Monument Circle, Suite 315
Indianapolis, IN 46204
Thomas E. Kieper
United States Attorney’s Office
10 West Market Street
Suite 2100
Indianapolis, IN 46204-3048
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