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Albert v. Sebelius

United States District Court, Eastern District of New York

January 30, 2015

WARREN ALBERT, D.C., and NY CHIROPRACTIC CARE, P.C., Plaintiffs,
v.
KATHLEEN SEBELIUS, in her official capacity as Secretary of the United States Department of Health and Human Services, and the UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, Defendants.

For the Plaintiffs: JASON HSI ROY W. BREITENBACH Garfunkel Wild P.C.

KATHLEEN ANNE MAHONEY United States Attorneys Office Eastern District of New York

MEMORANDUM AND ORDER

FREDERIC BLOCK, SENIOR UNITED DISTRICT JUDGE

Plaintiff Warren Albert, D.C. (“Dr. Albert”), a chiropractor licensed in New York and New Jersey, seeks judicial review of the final decision of the Secretary of the United States Department of Health and Human Services (“Secretary”), which determined that he is liable to Medicare for approximately $575, 000 because he provided inadequate documentation of his medical services. The Council’s decision hinged upon its interpretation of the documentation requirements contained in a “local coverage determination” (“LCD”) issued by National Government Services (“NGS”). Both parties now move pursuant to Federal Rule of Civil Procedure 12(c) for judgment on the pleadings and on the extensive administrative record.

The parties agree that the Court reviews the Council’s factual findings for substantial evidence. See 42 U.S.C. § 405(g) (“The findings of the [Secretary] as to any fact, if supported by substantial evidence, shall be conclusive.”). However, the parties do not address what standard of review the Court should apply to the Council’s legal interpretation of the documentation requirements contained in the LCD. This is a question of some complexity, since “in cases such as those involving Medicare or Medicaid, in which [Centers of Medicare and Medicaid Services], a highly expert agency[, ] administers a large complex regulatory scheme in cooperation with many other institutional actors, the various possible standards for deference – namely, Chevron and Skidmore – begin to converge.” Estate of Landers v. Leavitt, 545 F.3d 98, 107 (2d Cir. 2008) (internal quotation marks omitted) (quoting Cmty. Health Ctr. v. Wilson-Coker, 311 F.3d 132, 138 (2d Cir. 2002)).

Accordingly, the Court requests supplementary briefing and oral argument on two questions: (1) What level of deference should the Court apply to the Medicare Appeals Council’s interpretation of the relevant LCD? (2) Should the Court defer to the Council’s interpretation in this case? Written submissions are due by March 30, 2015. Oral argument is scheduled for April 17, 2015, at 11:00 a.m..


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