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Administrative – Medicare – Reimbursement – 1995 & 1997 Guidelines – Estoppel – Dated Record – Medical Complexity

Ojebuoboh v. Sebelius (Lawyers Weekly No. 12-02-0625, 21 pp.) (W. Earl Britt, Sr.J.) 4:11-cv-00017; E.D.N.C.

Holding: The plaintiff-doctor did not raise the issue of which set of Medicare Guidelines (the 1995 version or the 1997 version) applied until his motion for reconsideration before the Medicare Appeals Council (MAC). Accordingly, the MAC’s adoption of the independent reviewer’s decision to use the 1997 guidelines was not arbitrary, capricious, or an abuse of discretion.

The doctor’s motion for summary judgment is granted as to one patient. Otherwise, summary judgment is granted in favor of the defendant-secretary.

The doctor’s staff noted the wrong date for services rendered to patient W.B., and Medicare reimbursement was denied. The doctor argues that the MAC should be estopped from denying this service. The court disagrees.

First, it is doubtful estoppel can even be used against the MAC.

Second, while various reviewers prior to the MAC all noted the date of service as July 22, 2004 without any reference to the medical record reflecting July 21, 2004 as the actual date of service, the court fails to see how this fact could constitute a misrepresentation, let alone affirmative misconduct. Finally, given that the MAC was obligated to conduct a de novo review and thus is not bound by any of the earlier decisions, the doctor could not have reasonably relied on the “misrepresentation” of the July 22, 2004 date in those earlier decisions.

Plaintiff has failed to establish that equitable estoppel should be applied against the MAC and suggests no other basis for overturning its decision as to this date of service.

The MAC denied reimbursement as to patient M.T. because the doctor’s documentation of service was not dated. However, the document’s “heading” contains the date of “6/10/2005.” The government does not contend that the date must immediately precede or follow the provider’s signature line. The date is clearly part of the record documenting the provision of the service. Further, that a provider should document an evaluation and management (E/M) service during its provision or as soon as practicable thereafter is not an unequivocal requirement for which coverage for an E/M service may be denied. In sum, because the documentation is dated, the doctor provided sufficient information for Medicare to determine the amount due, if any, for this service. The court will remand the claim for this service.

Finally, as to patient O.W., while it is apparent that a number of tests were ordered for O.W. and that her condition was worsening, at least upon initial hospital admission, O.W. was an established patient, with a past history of chronic renal failure, hypertension, osteoarthritis, chronic leg edema, volume overload, and pan colonic diverticulosis. She was admitted to the hospital because of chronic renal failure, fatigue, and leg swelling. With the exception of fatigue, these problems were established and overall required less in the way of decision making. Thus, the court agrees that substantial evidence supports the

ALJ’s decision (which the MAC affirmed) that the doctor did not have to consider a number of possible diagnoses and/or a number of management options on this date of service. The court affirms the MAC’s decision to downcode the service.

Motions granted in part, denied in part.

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