United States District Court, S.D. West Virginia, Charleston Division
E. MICHAEL ROBIE, Plaintiff,
THOMAS E. PRICE, et al., Defendants.
AMENDED MEMORANDUM OPINION AND ORDER
R. GOODWIN, UNITED STATES DISTRICT JUDGE
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.
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.
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
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
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.
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.
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.
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.
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.
obtain a preliminary injunction, a plaintiff must show
“ that he is likely to succeed on the merits, 
that he is likely to suffer irreparable harm in the absence
of preliminary relief,  that the balance of equities tips
in his favor, and  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
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.
court has subject matter jurisdiction over this case pursuant
to 42 U.S.C. § 405(g) and Mathews ...