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Robie v. Price

United States District Court, S.D. West Virginia, Charleston Division

July 20, 2017

E. MICHAEL ROBIE, Plaintiff,
THOMAS E. PRICE, et al., Defendants.



         Pursuant to the Federal Rules of Civil Procedure Rule 60(a), I AMEND my prior Memorandum Opinion and Order [ECF No. 29] to address the issue of requiring the plaintiff to provide security.

         Pending before the court is the plaintiff's Motion for Ex Parte Temporary Restraining Order and Preliminary Injunction [ECF No. 3]. For the reasons stated herein, the Motion [ECF No. 3] is GRANTED in part as to the Temporary Restraining Order and RESERVED in part as to the Preliminary Injunction.

         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 his patients. V. Compl. Ex. 2A, at 2 (“Dec. 1 Letter”) [ECF No. 1-5]. 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. Examples of Dr. Robie's signature were provided to CMS on April 5, 2017. Mont. Aff. ¶ 10.

         Then, 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 reason given for revocation was a “Failure to Provide CMS Access to Documentation” under 42 C.F.R. § 424.535(a)(10). 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.

         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]. 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. Resp. by Pl. Ex. 8 (“June 14 Letter”) [ECF No. 19-8]. Notably, 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 contains no details regarding which documents CMS and Palmetto GBA consider to still be missing.

         The parties dispute whether the Secretary of the United States Department of Health and Human Services (“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.


         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 must satisfy all four elements. Id. The elements for a temporary restraining order are the same as those for a preliminary injunction.


         The ultimate issue before the court is whether I should grant Dr. Robie a temporary restraining order staying the revocation of his Medicare billing privileges. However, before turning to the temporary restraining order, 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 ...

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