Court Sends Doctor’s Medicare Claims Back to Administrative Law Judge for Further Consideration

On Thursday, the District of Maryland issued an opinion on the case of Kantor v. Azar, which deals with the judicial review of a case that was appealed through all five levels of administrative review provided for medical providers participating in the Medicare system. The court concluded that the processing at the third level of review represented an arbitrary and capricious interpretation of the Administrative Procedures Act and sent the review back to the Administrative Law Judge (ALJ) for proper processing.

According to the opinion, Dr. Kantor is a medical provider who provides treatments for terminally ill cancer patients. After obtaining authorization for an expensive injectable treatment for a patient, the bill was sent to Medicare for processing and the initial doses were paid, the court stated. However, as noted by the court, after further review by audit, a determination was made that the initial doses should not have been paid and a notice for recoupment was made.

The court stated that Dr. Kantor appealed this decision to the first level of review and the first contractor overturned the denial of the first dose and sent payment, but the second dose onward was rejected (not denied) and Dr. Kantor received instructions to appeal to the second level processor. Reportedly, the second level processor then stated that since there was no denial from the first level processor, she should return to the first level processor, even though the first level processor’s instructions indicated that the second level processor was now responsible for the second round.

The second level processor then indicated that the doctor could either request that the second level processor vacate the denial, or proceed to the administrative law judge for a hearing. However, the notice from the second level processor allegedly did not inform Dr. Kantor that by requesting a vacatur of the denial at the second level, she would be forfeiting her right to continue to the ALJ. The notice also did not indicate that the timely filing deadline for proceeding to the ALJ would run from that denial and not from the denial of the vacatur. The court recounted that after the vacatur resulted in the same negative result, the doctor appealed to the ALJ, who denied the appeal saying that it was not filed in a timely manner and that decision was confirmed by the fourth and fifth level of review.

The court, in reviewing the fact pattern, noted the decisions and processing of this claim as bewildering and inconsistent with the application of the law. The court specifically claimed that it appeared that the ALJ had just noted the dates involved, without reviewing the actual notifications that the doctor received or considering if the doctor acted consistently with the information provided. While issuing no decision as to the medical necessity of the cancer treatment, the court stated that the processing of these appeals met the definition of arbitrary and capricious behavior and directly contradicted the processing envisioned by the Medicare statutes and remanded the action to the ALJ for actual consideration of the doctor’s actions and possible remand from there to the Medicare contractor for a proper second level review of the case.

The plaintiff is represented by Silverman Thompson Slutkin White. The United States Secretary of Health and Human Services is represented by the Department of Justice and counsel from the Department of Health and Human Services.