ACCIDENT, INJURY AND REHABILITATION, PC, d/b/a Advantage Health & Wellness, Plaintiff - Appellee,
ALEX M. AZAR, II, Secretary of the United States Department of Health and Human Services; SEEMA VERMA, Administrator for the Centers for Medicare and Medicaid Services, Defendants - Appellants.
Argued: September 18, 2019
from the United States District Court for the District of
South Carolina, at Florence. Donald C. Coggins, Jr., District
Marc Salzman, UNITED STATES DEPARTMENT OF JUSTICE,
Washington, D.C., for Appellants.
Bruce Wallace, Stephen Daniel Bittinger, NEXSEN PRUET, LLC,
Charleston, South Carolina, for Appellee.
H. Hunt, Assistant Attorney General, Mark B. Stern, Rachel F.
Homer, Civil Division, UNITED STATES DEPARTMENT OF JUSTICE,
Washington, D.C.; Sherri A. Lydon, United States Attorney,
OFFICE OF THE UNITED STATES ATTORNEY, Columbia, South
Carolina; Robert P. Charrow, General Counsel, Janice L.
Hoffman, Associate General Counsel, Susan Maxson Lyons,
Deputy Associate General Counsel for Litigation, Greg
Bongiovanni, UNITED STATES DEPARTMENT OF HEALTH & HUMAN
SERVICES, Washington, D.C., for Appellants.
WILKINSON, NIEMEYER, and AGEE, Circuit Judges.
Niemeyer wrote the opinion, in which Judge Wilkinson and
Judge Agee joined.
NIEMEYER, CIRCUIT JUDGE:
to the Department of Health and Human Services
("HHS"), healthcare provider Accident, Injury and
Rehabilitation, P.C., d/b/a Advantage Health & Wellness
("Advantage Health"), was improperly paid over $6
million for Medicare claims it submitted over a four-year
period that did not qualify for reimbursement. HHS began
recouping the overpayments from current Medicare
reimbursements payable to Advantage Health, even as Advantage
Health pursued appeals of HHS's initial overpayment
determination through the administrative process. Because
hearings before administrative law judges ("ALJs")
- the third level of review in the administrative process
provided by the Medicare Act - are currently severely
backlogged, Advantage Health contends that HHS's
continuing recoupment of overpayments before completion of
the severely delayed administrative process is denying it
procedural due process.
Health commenced this action in the district court, seeking
injunctive relief prohibiting HHS from pursuing recoupment
efforts until Advantage Health could challenge the recoupment
amounts in a hearing before an ALJ. On Advantage Health's
motion, the district court granted a preliminary injunction,
enjoining HHS "from withholding Medicare payments to
[Advantage Health] to effectuate recoupment of any alleged
HHS's appeal, we conclude that the injunction entered in
this collateral proceeding, which prohibits HHS from
recouping overpayments in accordance with applicable law, was
inappropriately entered because the delay of which Advantage
Health complains could have been and still can be avoided by
bypassing an ALJ hearing and obtaining judicial review on a
relatively expeditious basis, as Congress has provided.
See Cumberland County Hosp. Sys., Inc. v. Burwell,
816 F.3d 48, 52-53, 55 (4th Cir. 2016) (noting that the
"comprehensive" and "coherent"
administrative process afforded by Congress includes
mechanisms by which, in the event of a delay, healthcare
providers may bypass certain levels of administrative review
and obtain judicial review in "a relatively expeditious
time frame"). Because we conclude that this
administrative review process does not deny Advantage Health
procedural due process, we vacate the district court's
Health is a South Carolina professional corporation that
provides medical, chiropractic, and holistic care for
patients in the Florence and greater Piedmont areas of South
Carolina. Prior to 2015, it earned gross revenues of close to
$6.8 million per year, with approximately one-third of that
sum derived from Medicare reimbursements.
on an analysis of Advantage Health's Medicare billings,
the Medicare Program Integrity Coordinator for South
Carolina, AdvanceMed, opened an investigation in September
2012 into Advantage Health's Medicare claims for
reimbursement. That analysis indicated that Advantage Health
had become "the top paid provider in South Carolina for
physical therapy codes," but it did not appear to have
sufficient growth in its patient population to justify its
growth in reimbursement claims. Specifically, AdvanceMed
found that "[f]rom 2010 to 2011, . . . the number of
services [that Advantage Health] billed to Medicare increased
332%, and the amount paid to [it] increased 592% for a
patient population that only increased by an additional 35
beneficiaries." A follow-up analysis conducted months
later showed that nurse practitioner "Judy Rabon . . . a
member of [Advantage Health], was paid more than $1.5 million
for the years 2012 and 2013, averaging more than $5, 000 per
beneficiary and billing more than 160 ...