An effort to reclaim Medicaid payments won’t happen without a fight from primary care physicians across Tennessee.
In a statement issued to the Elizabethton Star on Tuesday, a lawsuit filed by a handful physicians on Monday, Oct. 31, in the U.S. District Court of the Middle District of Tennessee is seeking to overturn a rule made by the Centers for Medicare & Medicaid Services (CMS) and stop efforts to recoup the funds by TennCare, the state’s Medicaid program. Physicians who received these payments in other states may eventually face similar claims.
The CMS is seeking to reclaim more than $2.3 million in Medicaid payments which were made to 21 physicians to “expand their practices in underserved areas in 2013 and 2014,” according to the release. Overall, TennCare is seeking repayment from over 100 practicing physicians within the state.
According to the court documents obtained by the Elizabethton Star, the lawsuit named 21 physicians as plaintiffs for the case, including two practicing physicians in Elizabethton — Scott May, M.D., and Arnold Hopland, M.D.
The other 19 physicians named on the document as plaintiffs include Andrew Averett, M.D.; Robert Baker, M.D.; Ricky Carson, M.D.; Clarey Dowling, M.D.; Renee Jones, M.D.; Hailu Kabtimer, M.D.; Abhay Kemkar, M.D.; Jonathan Kerley, M.O.; Jack King, Jr., M.D.; Charles Leonard, M.D.; Joseph Rupard, M.D.; Daniel Scott, III, M.D.; Hak Seo, M.D.; Nazai Shehzad, M.D.; William Terrell, M.D.; Clinton Webb, M.D.; Jerald White, M.D.; Theresa Woodard, M.D. and Monica Wright, M.D.
The defendants for the case include the United States Department of Health and Human Services; Brian Deese, secretary of the department; Centers for Medicare and Medicaid Services; and Andy Slavitt, administrator for the CMS.
The CMS adopted their own regulation on November 6, 2012, restricting increased payments authorized under the Congressionally-approved Medicaid Enhanced Payment Statute to only physicians who were either board-certified in certain specialties or who satisfied a sixty-percent-threshold requirement.
According to the complaint, the sixty-percent-threshold requirement described is directly contrary to the plain language of a statue put in place by the U.S. Congress, which imposed no such limitations on eligibility for the increased Medicaid payments.
The plaintiffs are looking for the courts to declare the CMS regulation is unlawful to require physicians to meet the sixty-percent-threshold, declare that physicians are not required to refund reimbursement payments and award the physicians their costs and expenses, including reasonable attorneys’ fees and any additional relief deemed just and proper.
“We acted just as Congress intended in passing the law — by expanding hours, services or locations to meet the needs of the underserved communities we practice in — and then the federal government tried to take the money back because we didn’t meet an arbitrary standard set by bureaucrats, not Congress,” said Dr. William Rodney, founder of the clinic that employs plaintiff Dr. Rickey Carson. With the payments, Dr. Carson’s practice in Memphis opened an outreach clinic for bilingual uninsured patients, expanded hours to weekends and upgraded other services. About 90 percent of the clinic’s patients are covered by Medicaid.
Attorney Alison Grippo at Bass, Berry & Sims, PLC said Tuesday that the Tennessee Medical Association, is supporting the lawsuit. According to information provided from the press release, the lawsuit will “further TMA’s interest in promoting access to healthcare for underserved populations, and advocate for Tennessee physicians against bait-and-switch tactics that could be financially devastating to some small practices.”
Grippo added the process to file the lawsuit began roughly a year ago after physicians were hit with an audit performed by TennCare based on additional requirements put in place by CMS. The U.S. Congress passed a statute to entice physicians to expand health services in “underserved” areas and established Medicaid payments for any “physician with a primary speciality designation of family medicine, general internal medicine or pediatric medicine” in those areas. But following the statue, CMS placed a second requirement that requires physicians either to be board certified or bill 60 percent or more of “the Medicaid codes he or she has billed” within certain specified billing code categories.
“Dr. Hopland has been serving the community since 1979, and Dr. May has been practicing since 1989,” Grippo said. “They aren’t board certified so they’re essentially being penalized. Our goal with this complaint is to invalidate the regulation that is working against the statue put in place by Congress.”
Both Dr. Hopland and Dr. May are primary care practitioners specializing in general medicine – qualifying for the statue that was put in place by Congress.
Bob Moos, Public Affairs Specialist with CMS – Region 6, responded to a request for comment from the Elizabethton Star late Monday afternoon stating it was the organization’s policy to not comment on pending litigation matters.
Garnering interest from across the state, U.S. Rep. Phil Roe, M.D., who represents Tennessee’s 1st Congressional District, weighed in on the issue.
“I am aware of this issue and have worked in a bipartisan, bicameral way to share with CMS and TennCare affected providers’ concerns that the recoupment of payments is not in line with the statute,” Rep. Roe said. “I will continue to follow this closely.”
CMS has 30 days to respond to the complaint once it has been served, which is expected in the next couple of days. Grippo added the firm is hoping to have this issue resolved in a timely manner for the physicians.