     Case: 16-50398        Document: 00514044323         Page: 1     Date Filed: 06/22/2017




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                           United States Court of Appeals

                                        No. 16-50398
                                                                                    Fifth Circuit

                                                                                  FILED
                                                                              June 22, 2017

MAXMED HEALTHCARE, INCORPORATED,                                             Lyle W. Cayce
                                                                                  Clerk
                Plaintiff - Appellant

v.

THOMAS PRICE, SECRETARY, U.S. DEPARTMENT OF HEALTH AND
HUMAN SERVICES,

                Defendant - Appellee


                     Appeal from the United States District Court
                          for the Western District of Texas


Before JONES and OWEN, Circuit Judges, and ENGELHARDT, District
Judge*.

EDITH H. JONES, Circuit Judge:
      The Secretary of Health and Human Services determined that the
Medicare program overpaid plaintiff-appellant Maxmed Healthcare, Inc., by
almost $800,000 for home health care services rendered to Medicare
beneficiaries. Maxmed sought judicial review, arguing principally that the
overpayment calculation was in error to the extent it extrapolated from a group
of noncompensable services to estimate an overpayment three times larger.




      *   Chief Judge of the Eastern District of Louisiana sitting by designation.
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                                  No. 16-50398
The district court granted summary judgment to the Secretary and denied
Maxmed’s motion to amend or alter the judgment. We AFFIRM.
                               BACKGROUND
      The Medicare program reimburses health care providers who render
services to Medicare beneficiaries. Congress created the Medicare Integrity
Program through which the Secretary contracts with private entities “for the
purpose of identifying underpayments and overpayments and recouping
overpayments[.]” See 42 U.S.C. § 1395ddd(a), (h)(1).
      Extrapolation is one permissible method of calculating overpayments. In
particular, Congress authorized Medicare contractors to “use extrapolation to
determine overpayment amounts” if the Secretary determines that “there is a
sustained or high level of payment error.” Id. § 1395ddd(f)(3)(A).
      The Centers for Medicare and Medicaid Services (CMS), the agency
responsible for administering Medicare, has issued two key documents that
govern the use of extrapolation. One document, Ruling 86-1, provides that
sampling for extrapolation purposes “only creates a presumption of validity as
to the amount of an overpayment which may be used as the basis for
recoupment.”    Following    an    overpayment     determination      based    on
extrapolation, the burden shifts to the Medicare provider, who “could attack
the statistical validity of the sample, or [] could challenge the correctness of
the determination in specific cases identified by the sample[.]” The second
document is the Medicare Program Integrity Manual, which sets out “[t]he
major steps in conducting statistical sampling,” and articulates a number of
criteria that govern the specifics of each step in the extrapolation process. See
Medicare Program Integrity Manual (MPIM) § 8.4.1.3; see also id. §§ 8.4.3.1




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                                       No. 16-50398
(Period for Review), 8.4.3.2.1 (Composition of the Universe), 8.4.3.2.2 (Sample
Unit), 8.4.4.3 (Sample Size). 1
        Providers who dispute an overpayment determination may challenge it
in a lengthy appeal process.            At the outset, a Medicare Administrative
Contractor makes an “initial determination” regarding the overpayment
amount. See 42 C.F.R. § 405.920. A provider who is displeased with the
Medicare Administrative Contractor’s initial determination may then seek a
“redetermination”—the first step in a five-step appeal process. Id. §§ 405.940–
.958.       The redetermination is conducted by employees of the Medicare
Administrative Contractor who were not involved in the initial determination.
Id. § 405.948. Second, if the provider remains dissatisfied, the provider may
request a “reconsideration.”           Id. § 405.960.       A Qualified Independent
Contractor,      another     private    contractor,    conducts     the    “independent”
reconsideration. Id. § 405.968. Third, if the provider still remains dissatisfied,
the provider may request a hearing before an administrative law judge (ALJ).
Id. § 405.1000(a).     The ALJ reviews the case de novo.              Id. § 405.1000(d).
Fourth, either the provider or CMS, through its contractors, may request that
the Medicare Appeals Council (Council) review the ALJ’s decision.                       Id.
§ 405.1100(a). The Council, like the ALJ, reviews the case de novo, and its
decision constitutes the Secretary’s final decision. Id. § 405.1000(c). Fifth, if
all else fails, the provider is entitled to “judicial review of the Secretary’s final
decision . . . as is provided in section 405(g) of this title.”                42 U.S.C.
§ 1395ff(b)(1)(A).




        1A copy of MPIM Chapter 8 may be found at https://www.cms.gov/Regulations-and-
Guidance/Guidance/Manuals/Downloads/pim83c08.pdf (last visited June 20, 2017). At the
time of the agency proceedings in this case, the relevant MPIM provisions were located in
Chapter 3. Subsequently, the provisions were relocated to Chapter 8, and both parties assure
us that the provisions are substantively unchanged.
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      Over the past six years, Maxmed navigated the appeal process from start
to finish. Maxmed is a home health agency that provided home health services
to Medicare beneficiaries.   Maxmed submitted claims for services to its
Medicare Administrative Contractor, Palmetto GBA, and received payments
accordingly.   In 2011, however, Palmetto GBA informed Maxmed that it
calculated overpayments between April 2008 and March 2010. Palmetto GBA
explained that Health Integrity, LLC, a private contractor charged with
investigating potential overpayments, determined that Maxmed had been
“overpaid in the amount of $773,967.00.” Health Integrity reviewed a sample
of 40 claims, submitted on behalf of 22 beneficiaries during that period, and
determined all but one noncompensable either because the patients were not
homebound or the services provided were not medically necessary.            See
42 U.S.C. § 1395f(a)(2)(C) (requiring a physician’s certification that “in the
case of home health services, such services are or were required because the
individual is or was confined to his home . . . and needs or needed skilled
nursing care”). This was an “error” rate exceeding 97%. The overpayment
amount attributable to the disapproved claims was $264,584.51.          Health
Integrity then statistically extrapolated to a universe of 130 claims, which
yielded a total overpayment amount of $773,967. Palmetto GBA instructed
Maxmed to repay the larger amount.
     Maxmed invoked the five-step appeal process to challenge the
overpayment determination. Maxmed challenged both the denial of coverage
for the claims and the extrapolation to 130 overpayments. Maxmed lost at the
redetermination and reconsideration levels before prevailing after an ALJ
hearing.
     In a 106-page ruling, the ALJ thoroughly examined each of the cases of
the 22 beneficiaries and found nearly all of their claims noncompensable or
overpaid. She ruled in favor of Maxmed on only one of the individual claims.
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                                 No. 16-50398
The ALJ then took up multiple challenges to Health Integrity’s statistical
sampling methodology and relied heavily on a report by an independent
statistician, not retained by Maxmed, who disagreed with the overpayment
calculations. Ultimately, the ALJ found that Health Integrity’s extrapolation
methodology was fatally flawed in a number of ways, including (1) the failure
to record the random numbers used in the sample as required by the MPIM;
(2) the failure to properly define sampling units; (3) the failure to demonstrate
the sampling units’ independence; and (4) the failure to demonstrate average
overpayment was normally distributed. The ALJ invalidated the extrapolation
methodology and the overpayment amounts based on the methodology.
      CMS referred the ALJ’s decision to the Council, as it is entitled to do,
seeking “own-motion” review. The Council, ruling de novo, affirmed the ALJ’s
assessment that the 22 beneficiaries’ individual cases were (with one
exception) not eligible for Medicare coverage, but reversed the ALJ’s
determinations about extrapolation and sampling. Like the ALJ, the Council
noted that an appeal challenging the validity of the sampling methodology
must be predicated on the actual statistical validity of the sample as drawn
and conducted. See MPIM § 8.4.1.1. Further, like the ALJ, the Council noted
Maxmed’s burden was to overcome the presumption of validity of the sampling
and extrapolation methodology. CMS Ruling 86-1. The Council concluded that
the ALJ “erred as a matter of law in her application of CMS Ruling 86-1 and
MPIM guidance and erred as a matter of fact by concluding that the evidence
of record establishes that the statistical sampling and extrapolation were
invalid.” The Council addressed numerous generic and specific challenges to
Health Integrity’s sampling and extrapolation methodology. Pertinent to this
appeal, the Council held that “the MPIM does not require that the list of
random numbers be provided,” because the sample selected by Health
Integrity could be replicated by other means. Further, the Council rejected
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                                      No. 16-50398
Maxmed’s contention that the sampling units were not independent because
(1) the record did not prove this assertion; (2) multiple claims pertaining to
individual beneficiaries were “independent” because they were generated in
separate 60-day increments; and (3) the MPIM expressly contemplates the use
of “claims, individual claims, or clusters of claims (e.g. a beneficiary)” as the
sampling units. MPIM, ch. 3, §3.10.3.2.2. 2 Finally, finding no authority for
Maxmed’s “sweeping proposition,” the Council summarily rejected Maxmed’s
“additional” argument that extrapolation violates the agency’s “Rule of
Thumb,” which, according to Maxmed, requires individualized review of each
beneficiary’s medical record.
       Maxmed sought judicial review of the Council’s decision. The company
no longer challenges its liability to repay over $250,000 based on services that
were found not medically reasonable and necessary, nor does it raise many of
the technical issues concerning extrapolation that were covered in its briefing
before the ALJ and the Council. In federal court, Maxmed raised various
issues challenging the Council’s decision and contended that it was deprived of
due process because it was denied timely, critical information about the
extrapolation methodology. The district court granted summary judgment to
the Secretary. The court affirmed the Council’s resolution of the extrapolation
issues for essentially the same reasons invoked by the Council. The court
found no due process violation because Maxmed had an “encrypted CD [with]
an explanation and details of the findings” for the entire duration of the appeal
process, and Maxmed had all relevant information at least “prior to the hearing
before the ALJ.”


       2  The concept of “independence” is important to a proper extrapolation. As the ALJ
stated, “[t]he concept of independence means that the (a) probability of denying the payments
from one sampling unit does not affect (b) the probability of denying the payments to any
other sampling unit in the frame. This form of independence is completely separate from the
random selection of sampling units from the frame.”
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                                  No. 16-50398
      Maxmed moved to amend or alter the judgment, attaching four
complaints in different lawsuits filed by Maxmed’s counsel that were presented
as “new evidence” demonstrating arbitrary extrapolation. The district court
denied the motion because “the[] complaints [did] not adequately inform the
Court as to the parties’ evidence, records, testimony, and statistical sampling,
and whether they are exactly the same as those at issue in this case.”
      Now, six years after the Secretary first demanded repayments, Maxmed
appeals the district court’s grant of summary judgment and denial of the
motion to amend or alter the judgment.
                          STANDARD OF REVIEW
      Because Maxmed raises a variety of claims, the standard of review varies
from claim to claim. First, as to the validity of the overpayment methodology
on which the district court granted summary judgment, “[t]his court reviews a
grant of summary judgment de novo, applying the same standard to review the
agency’s decision that the district court used.” Baylor Cty. Hosp. Dist. v. Price,
850 F.3d 257, 261 (5th Cir. 2017). The Secretary contends that the appropriate
standard is confined to 42 U.S.C. §405(g): “(1) whether the [Secretary] applied
the proper legal standards; and (2) whether the [Secretary’s] decision is
supported by substantial evidence on the record as a whole.” See Estate of
Morris v. Shalala, 207 F.3d 744, 745 (5th Cir. 2000). Maxmed argues that this
court should consider, under the Administrative Procedure Act, whether the
Secretary’s decision is not founded on substantial evidence or is “arbitrary,
capricious, an abuse of discretion, or otherwise not in accordance with law.”
See 5 U.S.C. § 706(2)(A), (E). This court recently addressed the same debate
between a medical services provider and CMS and “assume[d] only for the sake
of argument that the APA’s arbitrary and capricious standard applies.” Baylor
Cty. Hosp. Dist., 850 F.3d at 261. Because the standard of review “probably
makes no difference,” id., we make the same assumption here, too.
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                                   No. 16-50398
      Second, this court reviews the denial Maxmed’s motion to alter or amend
the judgment under Fed. R. Civ. P. 59(e) for abuse of discretion. See Rosenblatt
v. United Way of Greater Hous., 607 F.3d 413, 419 (5th Cir. 2010). “[A] motion
to alter or amend the judgment under Rule 59(e) ‘must clearly establish either
a manifest error of law or fact or must present newly discovered evidence’ and
‘cannot be used to raise arguments which could, and should, have been made
before the judgment issued.’” Id. (quoting Rosenzweig v. Azurix Corp., 332 F.3d
854, 864 (5th Cir. 2003) (quoting Simon v. United States, 891 F.2d 1154, 1159
(5th Cir. 1990))) (alteration in original).
      Finally, this court reviews the grant of summary judgment against
Maxmed’s due process claim de novo. Summary judgment is proper “if the
movant shows that there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” See, e.g., Rogers v. Bromac
Title Servs., L.L.C., 755 F.3d 347, 350 (5th Cir. 2014) (quoting Fed. R. Civ.
P. 56(a)).
                                  DISCUSSION
      Maxmed argues that substantial evidence does not support the Council’s
decision to approve the integrity contractors’ sampling and extrapolation
methodology and the Council’s decision was arbitrary and capricious. To this
end, the company focuses on the arguments highlighted above—random
numbers should have been recorded, the sampling units were not independent,
the Rule of Thumb prohibits extrapolation, and the four lawsuit complaints
highlighted in its post-judgment motion illustrate arbitrary extrapolation.
Maxmed also asserts that its due process rights were violated. None of these
arguments has merit.
I.    Random Numbers
      Maxmed contends that the extrapolation is invalid because the
Secretary, acting through its contractors, failed to document the random
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                                    No. 16-50398
numbers used in the sample and how they were selected. Maxmed relies on
MPIM section 8.4.4.4.1, which states that
      [a] record shall be kept of the random numbers actually used in
      the sample and how they were selected. Sufficient documentation
      shall be kept so that the sampling frame can be re-created, should
      the methodology be challenged.
The Secretary does not dispute that there is no record of the random numbers
in this case.
      But, as the Secretary notes, this fact does not necessarily invalidate the
extrapolation methodology, at least under the MPIM. Note that the quoted
section refers also to “sufficient documentation . . . so that the sampling frame
can be re-created.” Maxmed does not argue that the failure to record the
random numbers actually rendered the sampling invalid, and it ignores the
stated goal of maintaining the random numbers.           Health Integrity’s chief
statistician was able to replicate the sample of 40 claims using the information
available to Maxmed.
      Moreover, MPIM section 8.4.1.1 makes clear that a contractor’s failure
“to follow one or more of the requirements contained herein does not
necessarily affect the validity of the statistical sampling that was conducted or
the projection of the overpayment.”       Instead, “[a]n appeal challenging the
validity of the sampling methodology must be predicated on the actual
statistical validity of the sample as drawn and conducted.” MPIM § 8.4.1.1.
Section 8.4.1.1 concludes by reemphasizing that a contractor’s failure to follow
all MPIM requirements “should not be construed as necessarily affecting the
validity of the statistical sampling and/or the projection of the overpayment.”
Maxmed’s argument is inconsistent with the MPIM, and the Secretary did not
arbitrarily reject this argument.




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                                 No. 16-50398
II.     Sampling Units’ Independence
        Maxmed also argues that the MPIM requires the Secretary’s contractors,
to “obtain a statistically valid random sample of processed Medicare claims
that are defined correctly and independent.”       Maxmed contends that the
sampling in this case was fatally dependent because the same Medicare
beneficiary could have multiple claims or claim lines in the sample. The
independent expert Dr. Haller found, and the ALJ agreed, that using multiple
claims for one beneficiary in the sample rendered the sampling units not
independent.     MPIM section 8.4.10, entitled “Resources,” lists authoritative
texts on statistical methods, several of them referenced in Dr. Haller’s opinion,
which explain the proper concepts used by academics.
        As explained by the Council, however, the MPIM does not actually have
a strict “independence” requirement that conforms to authoritative statistical
standards and texts. The Council criticized Dr. Haller’s “assertion that
confidence interval extrapolation requires the sampling units to be wholly
independent,” and found that it “represents another example of [his] effort to
incorporate by reference academic standards that are not contemplated in
CMS guidance or consistent with real-world Medicare practices.”
        Moreover, the MPIM expressly permits a sample to include multiple
claims or claim lines from the same beneficiary. Section 8.4.3.2.2 provides that
sampling units “may be an individual line(s) within claims, individual claims,
or clusters of claims (e.g., a beneficiary).” Not only that, but the Council was
not persuaded that the sample units were in fact dependent. The Council
credited Health Integrity’s statistician, who testified that because different
dates of service are covered by each claim, the fact that a single beneficiary
was involved did not compel the same medical review result for each claim.
And although Dr. Haller characterized the sample units as dependent,
Maxmed’s retained expert said he lacked sufficient information to determine
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                                    No. 16-50398
whether the sampling units are dependent or independent. Finally, Maxmed
bore the burden but did not elect to challenge the compensability of any of the
claims or claim lines used in the sampling units.
         The conclusion of the Council’s reasoning in rejecting Maxmed’s
challenge to the sampling and extrapolation methodology is worth repeating:
         Suffice it to say, given MPIM provisions, the fact that [Health
         Integrity] selected a sampling methodology or sample size that
         another statistician may not prefer, or which may not result in the
         most precise point estimate, does not provide a basis for
         invalidating the sampling or the extrapolation as drawn and
         conducted in this case. . . . The Council must give substantial
         deference to CMS guidelines including where, as here, CMS has
         chosen a reasonable, feasible, and well-articulated approach for
         collecting overpayments which, by design, offsets precision in favor
         of lower recovery amounts. To the extent that [Dr. Haller] or other
         statisticians have significant concerns with the parameters of
         CMS’s statistical sampling guidelines, those concerns should be
         raised with CMS, as the Council has no authority to invalidate
         CMS guidelines.
         To be sure, Maxmed may have had a viable argument that the only
reasonable interpretation of the statutory term “extrapolation” includes
“independence” as understood by statisticians who have developed and
articulated the governing concepts. Such an interpretation could place the
Secretary’s non-technical interpretation outside the range of permissible
interpretations under Chevron, U.S.A., Inc. v. Natural Resources Defense
Council, Inc., 467 U.S. 837 (1984). Maxmed does not make this argument but
relies instead on the MPIM, and there is no basis for its MPIM argument. The
Secretary did not act arbitrarily and capriciously in rejecting the challenge to
the independence of the sampling units.
III.     Rule of Thumb
         CMS’s Medicare Benefit Policy Manual (MBPM) provides that a
“determination of whether home health services are reasonable and necessary

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                                  No. 16-50398
must be based on an assessment of each beneficiary’s individual care needs.”
MBPM Chap. 7, § 20.3. 3 The parties refer to this provision as a “Rule of
Thumb.” Maxmed contends that the use of extrapolation violates the Rule of
Thumb because extrapolation is not based on an assessment of each
beneficiary’s individual care needs. The upshot of this argument is that any
overpayment should only be determined after a review of each beneficiary’s
specific claims, and it is fundamentally at odds with extrapolation concerning
home health care claims. The Council rejected the argument because Maxmed
“point[ed] to no authority for such a sweeping proposition.” The district court
affirmed for the same reason and also because Maxmed did not suggest “any
alternative means to calculate the overpayment in this case that would not
violate the ‘Rule of Thumb.’”
      We agree with the Council and the district court. Maxmed’s contention
contradicts the statutory scheme. The Rule of Thumb makes sense for and
applies to the prepayment review of individual coverage claims under
Medicare. The MBPM provides guidance to Medicare contractors providing
such prepayment review. What is appropriate when services are being
authorized to Medicare beneficiaries, however, is not the standard for post-
payment audits of providers. Congress authorized the Secretary’s contractors
to use extrapolation where, as in this case, “there is a sustained or high level
of payment error[.]” 42 U.S.C. § 1395ddd(f)(3)(A). This provision is part of the
overall fiscal integrity program governing “[r]eview of activities of providers of
services or other individuals or entities furnishing items and services for which
payment may be made under this subchapter (including skilled nursing
facilities and home health agencies)[.]” 42 U.S.C. § 1395ddd(b)(1) (emphasis



      3A copy of MBPM Chapter 7 is available at https://www.cms.gov/Regulations-and-
Guidance/Guidance/Manuals/Downloads/bp102c07.pdf (last visited June 20, 2017).
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added).    Thus, Congress clearly envisioned extrapolation in overpayment
determinations involving home health agencies like Maxmed, and the
Secretary’s reliance on extrapolation as a tool was justified.
IV.     Relevance of Similar Cases
        Maxmed states that “[d]uring the course of judicial review, Maxmed
learned of four similar administrative cases” in which the use of the same
sampling methodology was rejected at the first stage of administrative review.
Maxmed contends that the difference in results between those cases and the
instant case shows that extrapolations and sampling are performed in an
arbitrary, inconsistent manner. Discovery of this “new” evidence led Maxmed
to ask the district court to amend or alter its decision pursuant to Rule 59(e),
but the district court denied relief.
        The court did not abuse its discretion. As the district court observed, all
of the unverified complaints were filed by Maxmed’s counsel while the
summary judgment motion was pending. Yet more than a month after the
district court rendered its decision, Maxmed asserted to the court that it had
“newly discovered evidence” that “by due diligence could not have been
discovered ahead of the decision.” Such assertion is factually inconsistent with
the filing dates of the four lawsuits.        Predicating the denial of Maxmed’s
motion on that ground alone would not have been an abuse of discretion.
        Moreover, Maxmed ignores the district court’s statement that the
“complaints do not adequately inform the Court as to the parties’ evidence,
records, testimony, and statistical sampling, and whether they are exactly the
same as those at issue in this case.” That statement is significant and correct:
the complaints that Maxmed attached as exhibits to its motion do not contain
details of the methodologies and other evidence at issue in those cases. For
this additional reason the district court did not abuse its discretion in denying
Maxmed’s motion to amend or alter the judgment.
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V.     Due Process
       Maxmed asserts that CMS and its contractors “deprived Maxmed of a
meaningful opportunity to dispute and contest the overpayment by
withholding    critical    evidence       such    as   the     statistical   sampling   and
extrapolation data and information.” Maxmed concedes that it obtained all of
this information at least shortly before the ALJ hearing, and the Secretary
disputes the untimeliness. Moreover, the information was thoroughly tested
before the ALJ and the Council. The company nevertheless complains that the
information was “withheld for years and through two appeal stages”
(presumably referring to the redetermination and reconsideration stages).
       We are unaware of any authority holding that agency processes become
fundamentally unfair under the circumstances before us, where Maxmed never
denies having received the information before the ALJ conducted a de novo
hearing. The only case that Maxmed cites is inapposite. See Chaves Cty. Home
Health Serv., Inc. v. Sullivan, 931 F.2d 914, 922–23 (D.C. Cir. 1991). No doubt,
42 U.S.C. § 1395ddd(f)(3) and 42 C.F.R. § 405.371 require the Secretary “to
disclose information about the review and statistical sampling that was
followed to calculate an overpayment[.]”               It is unclear whether Maxmed
requested this detailed information earlier in the administrative process, and
Maxmed alleges in only conclusory terms that it was prejudiced by late
disclosure. The district court properly rejected this claim.


                                      *      *         *
       We close with a note about how Maxmed’s appeal fits within the larger
pressing concerns surrounding Medicare appeals. Hundreds of thousands of
Medicare appeals are backlogged in agency proceedings. After being prompted
by the D.C. Circuit in American Hospital Association v. Burwell, 812 F.3d 183
(D.C. Cir. 2016), a district judge issued mandamus relief ordering the
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                                     No. 16-50398
Secretary to resolve the backlog by 2020 and adjudicate the appeals within
statutorily imposed deadlines. See Am. Hosp. Ass’n v. Burwell, No. 14-851,
2016 WL 7076983 (D.D.C. Dec. 5, 2016) (mem. op.).                 In March 2017, the
Secretary filed a status report in that case, indicating that the backlog is
increasing, not decreasing, and that the Secretary “has no means to, and
therefore cannot, meet the reduction targets . . . and simultaneously comply
with the statutory requirements for appropriate payment of claims.” Cochran
Decl. at 4 (Mar. 6, 2017), ECF No. 55. In a second status report filed in June
2017, the Secretary reported that there are 607,402 pending appeals, and the
Secretary projects that, absent legislative and budgetary measures, there will
be nearly 1 million pending appeals by the end of Fiscal Year 2021.
Defendant’s Status Report at 2–3 (June 5, 2017), ECF No. 56. It appears that
the Secretary awaits resources and funding from Congress to remedy the
problem.
       The practical realities are troubling. Providers like Maxmed who can
afford to challenge overpayment determinations are mired in years of review
(now six years for Maxmed). For many others who lack the necessary will or
resources, such challenges are undoubtedly cost-prohibitive, and capitulation,
even for meritorious objections, presents a more attractive option.
       The problems don’t end there. Think about the potential problems with
extrapolation methodologies employed by private contractors who are awarded
bounties for finding purported overpayments and whose findings are presumed
valid. 4 Consider also the effect of multiple tiers of de novo agency review,



       4See Recovery Auditing in Medicare Fee-For-Service for Fiscal Year 2015, Centers for
Medicare & Medicaid Services vi, 4 (explaining that Recovery Audit Contractors—who work
with the Medicare Administrative Contractors, Zone Program Integrity Contractors, and
Qualified Independent Contractors—“are paid on a contingency fee basis,” and the fees range
from 9% to 17.5% of the overpayment amount), https://www.cms.gov/Research-Statistics-
Data-and-Systems/Monitoring-Programs/Medicare-FFS-Compliance-Programs/Recovery-
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which render non-Council decisions and proceedings all but useless. Finally,
if a provider endures until judicial review, the courts’ highly deferential
standards of review offer the vast majority of providers little hope of success.
      Are these redundant, time-consuming, and costly procedures worthwhile
for program integrity or providers?          One is reminded of Prof. Gilmore’s
aphorism: “In Hell there will be due process, and it will be meticulously
observed.” Grant Gilmore, The Ages of American Law 111 (Yale 1977).
                                  *      *      *
      For the foregoing reasons, the district court’s grant of summary
judgment and denial of the motion to amend or alter the judgment are
AFFIRMED.




Audit-Program/Downloads/FY2015-Medicare-FFS-RAC-Report-to-Congress.pdf (last visited
June 20, 2017).
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