was a family practitioner practicing geriatric care the issues presented by these appeals although very similar and closely parallel focus upon the propriety of the interpretations applied by c m s on the various regulations and the question i saw that they will be in for three years from re unrolling correct a very substantial billings during the three year time period and it's just like you are claiming damages not just reversal of the order but we can't claim that's what i thought there's no severe auburn immunity but we are seeking  past due billings through the c m is process but it it's like a lawyer who's been disciplined in this district and he goes in applies in a district different district every time you apply as a doctor for privileges at the hospital every time you apply for medicaid for malpractise insurance you're going to have to answer the question have you ever been denied have you ever been revoked this is an ongoing stain on their records that unless undone will remain initially there's a question of the standard of review of the administrative procedure act of ursus the medicare act the significance of that is that the a p a standard the last consideration of about applying the thirteen the five standard says that all you look at is substantial evidence that forecloses the analysis we are claiming for example that the penalty was vastly disproportionate to the alleged wrongdoing  therefore we train for creationists we are claiming that the agency failed to apply the law failed to analyze the law correctly and i don't believe that that would be allowed  under the standard review of just looking at substantial evidence so i believe it is significant we've got the case law and the analysis pardon me that we believe substantiate application of the a p a standard the what happened here was that there were three three day trips where the doctors were out of the country during that time period billings were submitted the frankly the whole process before c m s appears to be have been that well you were out of the country therefore you couldn't bill end of discussion and the analysis if you look at the ail j s decision if you look at the department of feels more decision stops right there that this is that a sense that the requirement under law is that there be physical personal presence of the billing practitioner in the country fit personal  which has been brought forward as part of the record shows that there's been a lot of confusion over how do you apply this standard of it's called the incident to billing standard dr blunt well renowned expert gave his opinion where he discussed this process about how c m s was changing its various interpretations of that regulation well what does the regulation deal with that's really critical because it allows for u nder fourteen point twenty six it considers the fact that billing can be done by ugh ziller a personal meaning someone other than the billing provider auxilary personnel acting under the supervision of a physician or other practitioner throughout the regulations throughout the statute it allows for making arrangements with another practitioner to  to act on your behalf testers whatever more or providing the services from which the government was billed that is the critical issue as to who's supposed to be present fourteen and twenty six of the five starts off talking about in general services and supplies but the list be furnished under direct supervision but if you read next sentence service is furnished incident to skipping a couple of words frolicked care management services can be furnished under general supervision of the physician when the services or supplies are provided by clinical staff  control but the physicians presence is not part under general supervision the training remains the continuing responsibility so if you look at the evidence submitted by d mike i think is a very high standard practice but that's because it is conic care of conic care of when they were out of the country where they say they shouldn't that were being seen by the nurse practitioner but aside the use of the billing number for a moment percent and eighty five percent was not under the horrors the differential for doctor was was about fifteen hundred dollars so because of those relatively miniscule violations if the violations what was done well dr was was prosecuted for criminal violations which were ultimately dismissed he had to repay three hundred thousand dollars to the to medicare and he lost over half a million dollars of billings after that doctor's show lost her practice for three years and now they have this ongoing state of that is totally deny a hearing and grant summary judgment where you've got challenges devils on the one side and the evidence that utilizes terms of our medical terms of our recovery and physicians when you started you said they see him as based entirely on them being out of the country which is how i read it doing that that's an undisputed fact out of the country so i don't see why it was improper to do it is a summary judgment in district courts can do that when the jury's the ultimate decision like the case is for argument and you asked for additional time and i denied it because i thought the cases were identical and were correct that he would go over about five minutes have other work we don't want to talk about the rest of the morning but i think i should give you some more time if our colleagues will every think you're on your honor to address your oid don't want to be  answering you directly yes it's a question of law unless there's a question about well i had physicians covering for me unless that's de s i think the real question comes down to what level of supervision was appropriate for me and under fourteen thirty two we've only the evidence as a matter  had instructed there's practitioners as to what this course of care was written orders and the nurse practitioners were instructed to continue that process yes they're done well corrective action program means i'm going to fix things so in the future there's no problem and so they say well you haven't proved that you didn't have a problem but just totally arbitrary really ignoring what the whole definition of a corrective action program was you know we were denied the ability to have it considered go to the because they said that the refusal please the court i'd like to start with i have to be honest i'm kind of confounded by the argument that i just heard and i was handed this piece of paper this morning by the coun regulation for two and three two with the term general supervision highlighted neither doctor has through the entirety of this case at the administrative level of the district court or in the briefs on appeal ever argued this chronic care argument and that somehow the level of general supervision was required in their brief on appeal at page twenty six and this is from  five and highlights the part where it says in general services must be ferners under the direct supervision of the physician and then goes on to cite the regulation in this handout that i received this morning for ten three to be three two and on page twenty seven highlights the term direct supervision and in addition to that counsel is relying on a regular current version of the regulation and from that time of the administrative case the department of appeals board called him on that and said look you're relying on the current version of the regulation what applies is the version of the regulation that applied at the time on the current regulation were there been violations under the yes yes up that i don't know about this chronic care argument because it's never been raised i haven't looked into that all i know you if a doctor bills for services that could not have been provided at the time the services were performed and he goes even further and sets an example of this is if the doctor bills for services when the doctor was out of the country  that you can't deal with that billing number mase when you submit that bill that you have assertion provided those services but the i thought that what they were doing was billing for services that were incident two  supervision but then there turns out there's another level of supervision called general supervision they are that they were the possessions presence not required they  saw soon that there's been some determination that that the soap that they used at that that the services work or bell for are required durk supervision rather than done what they should have done is built under the nurse practitioners not ok but well this whole regulation that has this level of supervision it's about four ten that's three to diagnostic x ray i just don't know i i i can't even say s to billing you can still bill for one hundred percent rate if you have a physician but the position it doesn't have to be the physician supervising the patients more broadly it can be under another another physician but they have ready willing and capable of doing in order to provide the supervision required by the book under the regulations i would submit that it's extremely easy to do that because you just  and that's it that must be furnished under the direct supervision of the physicians correct and then they were presented with four ten point three two which is for diagnostic x ray test lab test another diagnostic test we see that's the difference here supervision i'm sorry are up but that there's an explanation for it i misunderstood you and the reference to the four ten three two is just a process reference from the answer to two billing regulations so it's going to start out for ten to sixty five and it says to bill for instance you services the service is going to be under the direct supervision of the physician and that same regulation but one case i'd like to point out your arms that really deals with this directly and the side to it at the district court district of new jersey a  patients did not bill medicare for the services incident to the services of the nurses but instead the vast majority of claims identified the doctor himself as the provider using the billing code for physician services and that case explains that the regulations unambiguous they require if you're going to bill for incident to billing services at the full physician rate that the regulations are unambiguous that the doctor must be present and available to appellants counsel mentioned criminal violations our office did have a criminal case at one point and a promise counsel described the case as being dismissed there was a pretrial diversion agreement in that case in which doctrine was agreed to pay three hundred thousand dollars and in this case you can just compare that with the argument in this case they know the difference their argument is the fifteen percent you know the billing was really miniscule there had to been a lot more going on here for him for a doctor there was to agree to pay three hundred thousand dollars in addition to without one hundred thousand dollars that was seized in the case as far as the corrective action plan issue i mean i think again here the regulations are clear they allow suppliers of providers to provide a corrective action plan but there's certainly no guarantee that and it might be considered but that doesn't mean that we can overlook the wrongdoing in the regulation expressly provides for that and just one clarification for the core i try to be careful and citing the regulations that were at issue in the time for the corrective action plan i did not so i just went out westlaw and did the versions at the time so from july sixteenth two thousand and twelve to february second two thousand and fifteen the regulation issue for corrective action contractor that it has complied fully with medicare requirements the c m s contractor may reinstate it goes on the say a c m s contractors refusal to reinstate the suppliers billing privilege privileges based on a corrective action plan does not an band is not that wide it must be a minimum of one year but not greater than three years depending on the severity of the basis for the revocation c m s looked at the conduct here the fact that numerous numerous fraud in medicare system and the purpose here where we see these criminal cases where there's fifty billion dollars in medicare fraud and everyone always says i wanted medicare stopped this before it got to that point that's correct sense is what the regulation says you just need general supervision the doctor doesn't need to be there because to do a blood test why does the doctor really need to be there makes more sense if you are performing medical procedures or examinations the doctor should be there and that's direct supervision that's how i see the regulation dividing up what were the services here that were billed for well it is true that fourteen point thirty two does deal with diet diagnostic x ray trip tests and let laboratory tests that's true the reason why we're referring to thirty two is that it's referenced by fourteen point twenty six that's the only this is the only our three two three two small eyes is referenced right which is the direct supervision which is direct supervision how do you get to general superman which is what you need that's what you highlighted for i went to for ten point thirty two because it had been utilized just for direct supervision or it if we ignore fourteen point thirty two  let's forget about it for a second look at the language of fourteen point twenty six b five in general services and supplies must be furnished under the direct supervision of the physician or other practitioner i mean someone else can do it but then the next sentence in b five says services furnished incident to chronic care management services can be furnished under general supervision chronic care management services that's not limited to x ray tests it is true as you're pointing out that fourteen point thirty two deals was those limited tests that see only reason why i've referenced it was that this is the only definition of general supervision i could find why the client might raise any of these points or counter sporting in their told each of these nurse practitioners what their standard of care was going to be for each and all of these patients and that on the dates when i was out of the country i had to cardiologists covering for me them the basis for billing from their own using their own billing number i never heard a justification as well using their own billing number i go back to only the supervision under the last sentence of paragraph five only the supervising physician may be a medic here so if they are satisfying the general supervision requirement of the five then it's ok for them to use theirs however dr blood had explained in his analysis of the of the industry is that there was a lot of confusion  as to how this is going to be applied i think that there is justification under the very language of this regulation i'm the physician i'm i have assessed the patient supervision the only reference that i could find in the statute to what general supervision means is in fourteen point thirty two which admittedly by its terms covers just a subset  if we don't have reference to fourteen point thirty two then what does general supervision mean well our evidence shows that they saw the patients they advised the nurse practitioners they told them what to do  and that and that they remain responsible i believe that that should be sufficient if it's not sufficient then we get to the question of the enormity of the penalty that for while they're around the country while the three hundred thousand a doctor in the was had to repay with all of his billing everything that medicare had paid for all services for a certain period of time it wasn't just for the billing is in