Does SECRETARY = MAC – Who Authorizes Statistical Sampling?

bloglogo2.jpgIn 1991, in the case of Chaves County Home Health Service Inc. v. Sullivan, the Court of Appeals for the District of Columbia Circuit approved the use of sample.jpgstatistical sampling and extrapolation by Medicare contractors, currently known as MACs or ZPICs, in conducting post payment reviews. Specifically, the Court held that the Secretary of HHS was authorized to employ statistical sampling and extrapolation as set forth in Health Care Financing Administration (HCFA, now known as CMS) Ruling 86-1 since the Medicare Act did not prohibit statistical sampling and such a procedure was consistent with the Secretary’s duty to prevent overpayments. On January 8, 2001, in Transmittal B-01-01, CMS updated the procedures a contractor was to follow in employing statistical sampling and extrapolation during a post payment review. As in Ruling 86-1, the new procedures imposed no limitation on when the contractor could determine the amount of an overpayment in a universe of claims by extrapolation from an analysis of a sample of the claims in that universe.

In § 935 of the Medicare Prescription Drug, Improvement, and Modernization Act of 2003, Congress added a new subsection (f)(3) to 42 U.S.C/ § 1395ddd. This subsection states:

Limitation on use of extrapolation
A medicare contractor may not use extrapolation to determine overpayment amounts to be recovered by recoupment, offset, or otherwise unless the Secretary determines that–
(A) there is a sustained or high level of payment error; or (B) documented educational intervention has failed to correct the payment error.
There shall be no administrative or judicial review under section 1395ff of this title, section 1395oo of this title, or otherwise, of determinations by the Secretary of sustained or high levels of payment errors under this paragraph.

The meaning of this section became the central issue in the case of Gentiva Healthcare Corp. v. Sebelius.


Gentiva Healthcare provides home health services to Medicare beneficiaries. In 2007, Gentiva’s MAC, Cahaba Safeguard Administrators, LLC, determined that there was “[a] sustained or high level of payment error” in claims filed by Gentiva. Cahaba conducted a post payment review of 30 of 1,951 claims submitted by Gentiva, found that 26 of the 30 claims were overpaid, and after extrapolating this result to the entire universe of claims, demanded that Gentiva repay Medicare $4,242,452.10. Gentiva appealed and argued that the clear language of § 1395ddd(f)(3) required the Secretary and not the MAC to determine whether there was a sustained or high level of payment error in Gentiva’s claims. During the administrative appeal proceedings, Gentiva was successful in having Cahaba’s overpayment decision overturned in 20 of the 26 claims and its alleged overpayment was reduced to about $850,000, but it was unsuccessful in its claim that only the Secretary could authorize the use of extrapolation. Gentiva appealed that decision to the United States District Court in Washington, D.C.

opinion.jpgThe District Court, in an opinion issued on April 6, 2012, held that the Secretary could delegate her authority to determine if “[t]here is a sustained or high level of payment error to a MAC. The District Court held that because 42 U.S.C. §1395kk(a) permits the Secretary to delegate her duties to Medicare contractors, it was not clear that Congress intended in § 1395ddd(f)(3) to limit the extrapolation decision solely to the Secretary. The Court concluded that since the statute was ambiguous and the Secretary’s interpretation reasonable, the Supreme Court’s decision in Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc. required the Court to uphold the Secretary’s decision. Gentiva’s June 6, 2012 appeal of the District Court’s decision (No. 12-5179) is pending.

The Flaw in the District Court’s Decision

The District Court’s conclusion that a MAC has the authority to decide when “[t]here is a sustained or high level of payment error” is premised upon its finding that the apparently straightforward language used by Congress in § 1395ddd(f)(3), i.e., “[u]nless the Secretary determines” is ambiguous. The Court did this by pointing to the apparent conflict between the language in § 1395ddd(f)(3) and the delegation language in § 1395kk(a). What the Court ignored, however, was the regulatory landscape at the time § 1395ddd(f)(3) was enacted, a landscape in which Medicare contractors had the authority to determine on their own if there was a sustained or high level of payment error and to conduct statistical sampling. It seems to me that in light of the procedures in place in 2003, a more reasonable interpretation of § 1395ddd(f)(3) is that Congress intended to limit the discretion then being exercised by the MACs by requiring the Secretary to determine whether statistical sampling was justified and that there is no conflict between the language in § 1395ddd(f)(3) and § 1395kk(a). I believe that the District Court’s failure to address this issue makes the validity of its conclusion suspect, an omission that will hopefully be corrected by the Court of Appeals.

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