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Nawaz v. Price

United States District Court, E.D. Texas, Sherman Division

June 28, 2017

MOHAMMAD NAWAZ, M.D. and MOHAMMAD ZAIM, M.D., P.A.
v.
TOM PRICE, Secretary of the United States Department of Health and Human Services ZILLE SHAH, M.D. and ZILLE HUMA ZAIM, M.D., P.A.
v.
TOM PRICE, Secretary of the United States Department of Health and Human Services

          MEMORANDUM OPINION AND ORDER

          AMOS L. MAZZANT, Judge

         Pending before the Court are Mohammad Nawaz, M.D. and Mohammad Zaim, M.D., P.A.'s Complaint for Judicial Review (Dkt. #1) and Zille Shah, M.D. and Zille Huma Zaim, M.D., P.A.'s Complaint for Judicial Review (Shah Dkt. #1).[1] The Court, having considered the administrative records, relevant pleadings, and oral arguments of the parties, affirms the decision of the Secretary of the Department of Health and Human Services to revoke Plaintiffs' Medicare billing privileges.

         BACKGROUND

         Plaintiff Mohammed Nawaz, M.D. (“Nawaz”) is a Texas cardiologist who practices under the Professional Association Mohammed Zaim, M.D., P.A. Nawaz participated as a provider in the Medicare program. Plaintiff Zille Shah, M.D. (“Shah”) is a Texas primary care physician who practices under the Professional Association Zille Huma Zaim, M.D., P.A. Shah, like her husband Nawaz, also participated in the Medicare program. Plaintiffs' cases are factually similar and allege the same legal theories. Thus, the Court finds it appropriate to analyze the cases together.

         Nawaz concedes that he was out of the country during the following periods: June 18-20, 2011; September 27 - October 2, 2011; May 2-4, 2012; and May 20 - June 4, 2013. A.R. at 7, 597-682. Nawaz also concedes that he billed Medicare for services on those dates using his unique Medicare National Provider Identifier (“NPI”). Id. Nawaz submitted an affidavit stating he had two cardiologists “covering for me on the above dates.” A.R. at 871. Shah also concedes that she was out of the country for the same dates. Shah A.R. at 721-22, 728-89, 790-94. Shah's nurse practitioners performed services, but Shah billed Medicare for her full rate under her own NPI while out of the country. Shah A.R. at 725-94. Shah submitted an affidavit stating she had “lined up primary care providers for coverage in the case of emergency.” Shah A.R. at 641.

         The Centers for Medicare and Medicaid Services (“CMS”) utilizes a contractor, Novitas Solutions, for administrative services. On September 25, 2014, Novitas Solutions contacted Nawaz to inform him that his Medicare privileges are being revoked because he submitted in excess of one hundred Medicare claims during documented periods of travel outside of the United States in 2011, 2012, and 2013. A.R. at 588-89. CMS accordingly revoked Nawaz's Medicare billing privileges under 42 C.F.R. § 424.535(a)(8), effective October 25, 2014, and barred him from re-enrolling for three years. A.R. at 588-89. Similarly, Novitas Solutions contacted Shah to inform her that her Medicare privileges are being revoked because she submitted over ninety Medicare claims during documented periods of travel outside the United States. Shah A.R. at 721-22. CMS accordingly revoked Shah's Medicare billing privileges under 42 C.F.R. § 424.535(a)(8), effective October 30, 2014, and barred her from re-enrolling for three years. Shah A.R. at 721-22.

         Following the revocation notices, Plaintiffs submitted corrective action plans to CMS. A.R. at 584-87; Shah A.R. at 703-04. On November 7, 2014, CMS determined that based on the information provided, Nawaz failed to provide “verifiable evidence that [he was] in compliance with Medicare requirements at the time the revocation was issued[.]” A.R. at 580. CMS noted that the corrective action plan did “not negate the fact that claims were submitted for services that could not have been furnished by [Nawaz] on the date(s) of service reported.” A.R. at 580. On December 30, 2014, CMS similarly determined that based on the information provided, Shah failed to provide “verifiable evidence that [she was] in compliance with Medicare requirements at the time the revocation was issued[.]” Shah A.R. at 699. CMS noted that the corrective action plan did “not negate the fact that claims were submitted for services that could not have been furnished by [Shah] on the date(s) of service reported.” Shah A.R. at 699.

         Plaintiffs also submitted requests for reconsideration to CMS. A.R. at 577-79; Shah A.R. at 683-84. On March 9, 2015, CMS upheld Nawaz's revocation by issuing an unfavorable decision. A.R. at 549-551. In its decision, CMS explained that Nawaz “is accountable for his billing number privileges per 42 CFR § 424.506(c)(2). The reason of not being aware that a nurse practitioner cannot file claims under his NPI number without his presence does not correct the deficient compliance . . . .” A.R. at 550. Similarly, on March 31, 2015, CMS upheld Shah's revocation. Shah A.R. at 648-51.

         Nawaz, through his attorneys, sought review of CMS's revocation decision by an administrative law judge (“ALJ”). A.R. at 22-34. The parties filed cross motions for summary judgment. A.R. at 112-21, 142-63. The ALJ granted CMS's motion and upheld Nawaz's revocation. A.R. at 259-77. The ALJ cited a 2004 CMS Medicare Learning Network notice that explained, “Physicians do not have to be physically present in the patient's treatment room . . . the physician must be present in the office suite to render assistance, if necessary.” A.R. at 5. The ALJ continued, noting that “what Petitioner does not deny is that he . . . submitted or caused to be submitted claims for services that he allegedly provided on dates when he was not in the United States. That concession is all that CMS needs in order to authorize revocation.” A.R. at 5. Shah similarly sought review by an ALJ, who upheld Shah's revocation for billing for services while outside of the United States. Shah A.R. at 6-34.

         Following the ALJ appeal, Nawaz appealed the decision to the Departmental Appeals Board (“DAB”). A.R. at 259-277. The parties briefed the issues and the DAB heard oral argument. A.R. at 259-322. The DAB upheld summary judgment in CMS's favor, finding that Nawaz had submitted claims to Medicare while out of the country, which directly violates 42 C.F.R. § 410.32(b)(3)(ii). A.R. at 6-21. Similarly, Shah appealed her case to the DAB. Shah A.R. at 194- 214. The DAB upheld Shah's revocation for the same reasons identified in Nawaz's appeal. Shah A.R. at 6-23.

         On June 10, 2016, Nawaz filed a Complaint for Judicial Review, naming Sylvia Mathews Burwell, Secretary for the U.S. Department of Health and Human Services (the “Secretary”) as the defendant (Dkt. #1). On October 6, 2016, Sylvia Mathews Burwell filed an answer (Dkt. #9). On January 16, 2017, Nawaz filed an opening brief (Dkt. #17). In February 2017, Tom Price replaced Sylvia Mathews Burwell as Secretary for the U.S. Department of Health and Human Services. On February 16, 2017, Defendant Tom Price filed a response brief (Dkt. #21). On March 3, 2017, Nawaz filed a reply brief (Dkt. #25). On March 6, 2017, Defendant filed a sur-reply (Dkt. #26). On May 15, 2017, the Court held oral argument. On June 14, 2017, Nawaz filed a post-argument letter brief (Dkts. #32, #33). On the same day, Defendant filed a response (Dkt. #34).

         On June 10, 2016, Shah filed a Complaint for Judicial Review, naming Sylvia Mathews Burwell, Secretary for the U.S. Department of Health and Human Services as the defendant (Shah Dkt. #1). On October 6, 2016, Sylvia Mathews Burwell filed an answer (Shah Dkt. #9). On January 16, 2017, Shah filed an opening brief (Shah Dkt. #16). On February 16, 2017, Defendant Tom Price filed a response brief (Shah Dkt. #21). On March 3, 2017, Shah filed a reply brief (Shah Dkt. #25). On March 6, 2017, Defendant filed a sur-reply (Shah Dkt. #26). On May 15, 2017, the Court held oral argument. On June 14, 2017, Shah filed a post-argument brief (Shah Dkt. #33). On the same day, Defendant filed a response (Shah Dkt. #34).

         LEGAL STANDARD

         A Medicare provider or supplier whose Medicare privileges have been revoked can pursue a judicial appeal of the Secretary's final decision. 42 U.S.C. § 405(g). Judicial review of the Secretary's decision is limited to two inquiries: (1) whether the Secretary applied the correct legal standards; and (2) whether there is substantial evidence in the record to support the Secretary's decision. Estate of Morris v. Shalala, 207 F.3d 744, 745 (5th Cir. 2000) (citing Paul v. Shalala, 29 F.3d 208, 210 (5th Cir. 1994); Anthony v. Sullivan, 954 F.2d 289, 292 (5th Cir. 1992)); Maxmed Healthcare, Inc., v. Burwell, 152 F.Supp.3d 619, 625 (W.D. Tex. 2016) (same). When considering whether the Secretary applied correct legal standards, courts are ...


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