
    Miguel STUBBS, M.D., Plaintiff, v. Thomas E. PRICE, M.D., in his official capacity as Secretary of the United States Department of Health and Human Services and Seema Verna, in her official capacity as Administrator for the Center for Medicare and Medicaid Services, Defendants.
    CIVIL ACTION FILE No. 1:17-cv-2091-TCB
    United States District Court, N.D. Georgia, Atlanta Division.
    Signed July 6, 2017
    Filed 07/07/2017
    
      Scott Robert Grubman, Chilivis, Cochran, Larkins & Bever, LLP, Atlanta, GA, for Plaintiff.
    Neeli Ben-David, U.S. Attorneys Office, Atlanta, GA, for Defendants;
   ORDER

Timothy C. Batten, Sr., United States District Judge

Before the Court is Plaintiff Dr. Miguel Stubbs’s, motion for á preliminary injunction [5].

I. Background

Stubbs is a primary, care physician in Smyrna, Georgia, and he operates his own practice, National Health Care. He participates in the Medicare program pursuant to a provider agreement with the Centers for Medicare and Medicaid Services (“CMS”). The Medicare program provides health insurance -benefits to elderly and disabled individuals. CMS is responsible for administering the Medicare program on behalf of the federal government and sets out the grounds on which it may revoke a supplier’s enrollment and billing services.

On March 17, 2017, CMS alerted Stubbs that it intended to revoke his Medicare billing privileges for a three-year period effective April 16, 2017, for “abuse of billing privileges” pursuant to 42 C.F.R. § 424.535(a)(8). [1-1] at 1. CMS based its revocation determination on “twenty-nine (29) claims submitted for ten (10) beneficiaries” who “were deceased on each purported date of service.” [1] at ¶ 2.

CMS. reopened and revised its revocation determination and on May 10, 2017, it notified Stubbs that his Medicare billing privileges would be revoked effective June 9, 2017. [1-1] at 6. The letter stated that the revocation was for the same reasons as before. To this date, the Court is unaware of any attempt by Stubbs to submit a request for reconsideration of this decision. [5-1] at ¶ 11.

Concerned that his billing privileges would be revoked without having the opportunity to avail himself through the administrative appeals process, Stubbs filed a motion for a temporary restraining order [2] on June 7, 2017 due to the impending revocation date. After the motion was filed, Defendants agreed to delay the revocation until July 7, 2017. Accordingly, Stubbs withdrew his motion for a temporary restraining order and filed a motion, for a preliminary injunction [5] on June 19.

In his motion for a preliminary injunction, Stubbs requests that the Court defer the effective date of the revocation of his billing privileges until the administrative appeals process has been completed.- In support, Stubbs asserts that the imminent revocation violates his .procedural and substantive due process rights. First, he avers that the revocation is constitutionally inadequate because it will prevent him from ever being able to seek meaningful relief through the administrative. appeals process. Next, he alleges that it would be a clear abuse of discretion, and arbitrary and capricious action, for Defendants to revoke his billing privileges before he can seek reversal of the revocation through the administration appeals process.

II. Jurisdiction

Before the Court can even address the issue of whether Stubbs meets the requirements for issuance of a preliminary injunction, it‘must determine that it has subject matter jurisdiction to grant his request.

A. The Court Does Not Have Federal-Question Jurisdiction Over Stubbs’ Claims

Stubbs first contends that the Court has jurisdiction, pursuant to the federal-question statute, 28 U.S.C. § 1331.

This action arises under the Medicare Act, 42' U.S.C. §§ 1395 et seq, Congress has defined the role of the courts in the' programs of the Social Security Act, such as Medicare. -“The Court is not authorized to address claims asserted against the United States, the Secretary of Health and Human Services, or their officers and employees, that arise Under the Medicare Act until after the'conclusion of an administrative review process-.” Forum Healthcare Grp., Inc. v. Ctrs. for Medicare & Medicaid Servs., 495 F.Supp.2d 1321, 1327 (N.D. Ga. 2007). Specifically, 42 U.S.C. § 405(g) provides that judicial review of Social Security claims can only be reviewed following an administrative hearing and a final decision by the Secretary of Health and Human Services. Congress expressly incorporated this provision to govern various Medicare matters, including enrollment-related and provider-termination decisions. See, e.g., 42 U.S.C. §§ 1395cc(j)(8) & 1395cc(h)(l)(A).

Section 405(h) provides that judicial review under § 405(g) is the sole and exclusive basis for any court’s jurisdiction:

The findings and decision of the Commissioner of Social Security after a hearing shall be binding upon all individuals who were parties to such hearing. No findings of fact or decision of the Commissioner of Social Security shall be reviewed by any person, tribunal, or governmental agency except as herein provided. No action against the United States, the Commissioner of Social Security or any officer or employee thereof shall be brought under section 1331 or 1346 of title 28 to recover on any claim arising under this title.

The Supreme Court has repeatedly upheld this jurisdictional bar in Medicare related matters. For example, in Heckler v. Ringer, 466 U.S. 602, 614-615, 104 S.Ct. 2013, 80 L.Ed.2d 622 (1984), the Court recognized that the Medicare statute provided “the sole avenue of judicial review” for any matter “arising under” the Medicare Act. Moreover, the Supreme Court has stressed that § 405(h) “demands the ‘channeling’ of virtually all legal attacks through the agency.” See Shalala v. Ill. Council on Long Term, Care Inc., 529 U.S. 1, 13, 120 S.Ct. 1084, 146 L.Ed.2d 1 (2000) (affirming dismissal of nursing homes’ complaint that certain Medicare-related regulations violates various statutes and the Constitution on jurisdictional grounds).

In accordance with federal law, the Court would traditionally lack jurisdiction to entertain Stubbs’s request. However, Stubbs provides various arguments as to why the § 405(h) jurisdictional bar/exhaustion requirement does not apply in this case. Thus, the Court will analyze each individually.

1. Stubbs’s Procedural Due Process Claim Is Not “Entirely Collateral” from His Substantive Administrative Appeal

Generally, a party aggrieved by the failure of CMS to provide due process must exhaust administrative remedies before seeking relief in court. However, Stubbs contends that the exhaustion requirement “does not apply to a due process claim ‘entirely collateral’ to a substantive claim, if the plaintiff has raised ‘at least a colorable claim’ that erroneous deprivation prior to exhaustion of administrative remedies would harm him in a way that could not be recompensed.” Mathews v. Eldridge, 424 U.S. 319, 330, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976). More specifically, he contends that his due process claim—that he has not been afforded a hearing or an opportunity to exhaust the administrative review process with respect to the underlying revocation determination—falls squarely within the “entirely collateral” exception to the exhaustion requirement.

Stubbs is correct that the “entirely collateral” exception applies when a plaintiff is asserting a constitutional challenge demanding that a pre-termination hearing take place. Id. at 330, 96 S.Ct. 893. A plaintiffs claim “that he is entitled to a pre-suspension hearing is ‘entirely collateral’ to his substantive claim that the suspension is in error” when the “final decision on [plaintiffs] substantive claim would not answer the constitutional challenge to the validity of a suspension prior to a hearing.” Ram v. Heckler, 792 F.2d 444, 446 (4th Cir. 1986).

Accordingly, the administrative remedies prescribed by the Social Security Act should be deemed exhausted and the Court should have jurisdiction over Stubbs’s procedural due process claim if he was actually pursuing an “entirely collateral” due process claim. Despite Stubbs’s assertions that he is pursuing such a claim, the Court concludes otherwise.

Stubbs essentially cloaks a substantive challenge to CMS’s revocation decision in the form of a procedural due process constitutional challenge. By requesting that the Court suspend CMS’s revocation decision, Stubbs has asked the Court to step in and determine whether CMS’s revocation decision was correct. His arguments go to the heart of his substantive administrative claim instead of supporting his due process claim. “A favorable resolution of [Stubbs’s] claim in this case would result in requiring Defendants to continue paying [Stubbs] under [his] ... Medicare agreement ].” Forum Healthcare Grp., Inc., 495 F.Supp.2d at 1328. Thus, Stubbs’s claim for a preliminary injunction is “inextricably intertwined with [his] substantive challenge to Defendants’ termination decisions.” Id.

This conclusion is further evidenced by the fact that Stubbs focuses on the merits of his administrative claim rather than his due process claim in arguing that he is likely to succeed on the merits of his request for a preliminary injunction. [5] at 14-15. Stubbs characterizes the inquiry as whether he has a substantial likelihood of success of prevailing on the merits of the revocation dispute at a future ALJ hearing. He goes on to explain the substantive reasons why his revocation was incorrect and why it will be reversed. However, this inquiry is incorrect; the issue is whether Stubbs would have a substantial likelihood of success on the merits of his procedural due process claim, i.e., whether the law demonstrates that he is entitled a pre-termination administrative hearing before his privileges can be revoked. See GOS Operator, LLC v. Sebelius, 843 F.Supp.2d 1218, 1232 (S.D. Ala. 2012) (analyzing whether the plaintiff was likely to succeed on his procedural due process claim that he should have been entitled to an administrative hearing before his provider agreement could be terminated). While Stubbs maintains that he is asserting a procedural due process claim, his own arguments indicate otherwise.

Because Stubbs’s procedural due process claim is inextricably intertwined with his substantive administrative challenge to his revocation, it is not “entirely collateral” to that challenge.

2. Stubbs Is Unable to Show that the “No Review At All” Exception Applies

Stubbs also argues that the usual exhaustion of administrative remedies is not required where it would mean that CMS’s revocation decision receives “no review at all” or “the practical equivalent of a total denial of judicial review.” Shalala, 529 U.S. at 19, 120 S.Ct. 1084. According • to Stubbs, judicial review after completion of the administrative appeal process— which would occur here—is the practical equivalent of a complete denial of judicial review, as the administrative process will take many months and will not be completed until long after his Medicare billing privileges have been revoked.

As the Supreme Court cautioned in Illinois Council, 529 U.S. at 22, 120 S.Ct. 1084, “[W]e do not hold that an individual party could circumvent § 1395ii’s channeling requirement simply because that party shows that postponement would mean added inconvenience or cost in an isolated, particular case.” “Rather, the question is whether, as applied generally to those covered by a particular statutory provision, hardship likely found in many cases turns what appears to be simply a channelling requirement into complete preclusion of judicial review.” Id. at 23, 120 S.Ct. 1084; see also GOS Operator, 843 F.Supp.2d at 1225 (“Make no mistake: -This ‘no review at all’ exception ... is both narrowly circumscribed and rarely applicable.”).

Stubbs is unable to’ demonstrate that adhering to the administrative process would result in more than an added inconvenience or cost. He provides only conclu-sory consequences that could occur as a result of the loss of billing privileges. Stubbs has failed to provide sufficient justification as to why his interest in having his claims resolved promptly is so great to warrant the application of this “narrowly circumscribed” exception.

B. The Court Does Not Have Mandamus Jurisdiction

Stubbs also argues that the Court has jurisdiction to enjoin CMS from revoking his privileges—and that the § 405(h) jurisdictional bar does not apply to mandamus actions—because district courts have original jurisdiction under the Mandamus Act. According to Stubbs, the Court has jurisdiction “of any action in the nature of mandamus to compel an officer or employee of the United States or any'agency thereof to perform a duty owed to the plaintiff.” 28 U.S.C. § 1361.

The common-law writ of mandamus is intended to provide a remedy for a plaintiff only if he has exhausted all other avenues of relief and only if the defendant owes him a clear nondiscretionary duty. Heckler v. Ringer, 466 U.S. 602, 614-615, 104 S.Ct. 2013, 80 L.Ed.2d 622 (1984) (citing Kerr v. United States District Court, 426 U.S. 394, 402-03, 96 S.Ct. 2119, 48 L.Ed.2d 725 (1976)), Stubbs cannot satisfy either requirement. Defendants’ decisions as to when a revocation goes into effect and whether to give a provider additional opportunities to clarify his billing practices are clearly discretionary decisions. See Ringer, 466 U.S. at 617, 104 S.Ct. 2013. Moreover, Stubbs cannot avail himself of mandamus jurisdiction when he has yet to avail himself of the' administrative process. See Lifestar Ambulance Servs., Inc. v. U.S., 365 F.3d 1293, 1296-98 (11th Cir. 2004). Thus, the Court does not have mandamus jurisdiction over Stubbs’s claim.

C. The Court Does Not Have Jurisdiction Under the APA

Finally, Stubbs argues that the Administrative Procedure Act (“APA”) provides a jurisdictional basis for the Court to grant the relief he seeks. Not only does Stubbs fail to cite any authority supporting his argument, but the Supreme Court has held that the APA “is not an independent grant of subject matter jurisdiction.” See Your Home Visiting Nurse Servs. v. Shalala, 525 U.S. 449, 456-58, 119 S.Ct. 930, 142 L.Ed.2d 919 (1999) (citing Califano v. Sanders, 430 U.S. 99, 97 S.Ct. 980, 51 L.Ed.2d 192 (1997)). Moreover, the APA cannot be used as a mechanism to override the jurisdictional requirements of § 405(h). Heckler, 466 U.S. at 622-23, 104 S.Ct. 2013.

For these reasons, § 405(h) remains a bar, to jurisdiction. Because Stubbs has not' exhausted his remedies provided by the Medicare'statute, the Court cannot exercise the judicial review requested.

III. Analysis

. Even if the Court has jurisdiction over this action, Stubbs has failed to show that he is entitled to preliminary injunctive relief.

A. Standard for Granting a Preliminary Injunction .

A “preliminary injunction is a drastic remedy not to be granted unless the movant clearly establishes the ‘burden of persuasion’ as to all four elements.” Siegel v. LePore, 234 F.3d 1163, 1176 (11th Cir. 2000). To obtain a preliminary injunction, Stubbs must demonstrate that' (1) his claim has a substantial likelihood of success on the merits; (2) he will suffer irreparable harm in the absence of an injunction; (3) the harm suffered by him in the absence of an injunction would exceed the harm suffered by Defendants if the injunction is issued; and (4) an injunction would not disserve the public interest. Johnson & Johnson Vision Care, Inc. v. 1-800-Contacts, Inc., 299 F.3d 1242, 1246-47 (11th Cir. 2002). The likelihood of success on the merits is generally considered the most important of the four factors. Garcia-Mir v. Meese, 781 F.2d 1450, 1453 (11th Cir. 1986).

B. Stubbs Is Not Entitled to Preliminary Injunctive Relief

1. Stubbs Cannot Show a Likelihood of Success on the Merits

Stubbs vehemently contends that he has a strong chance of prevailing on the merits of the revocation dispute at an ALJ hearing because his billing errors were isolated and accidental and do not constitute a “pattern of abuse” of billing privileges. See 73 Fed. Reg. 36448, 36455 (Final Rule, June 27, 2008) (noting that the regulation “is not intended to be used for isolated occurrences.or accidental billing!errors. Rather, this' basis for ‘revocation is directed at- providers and suppliers who are engaging in a pattern of improper billing”). In making this argument, Stubbs relies' on the fact that the revocation at issue is based on only twenty-nine claims and the total amount billed for the claims was approximately $1,000, and not one of the claims was actually paid by Medicare.

Contrary to Stubbs’s argument, he is not likely to succeed on the. .merits of his substantive administrative claim. For one, Stubbs’s argument that the pertinent regulation was not intended for isolated occurrences or accidental billing errors does not consider the remainder of the language of the regulation that follows:

We recognize the impact that this revocation has, and a revocation will hot be issued unless sufficient evidence demonstrates abusive billing patterns. Accordingly, we will not revoke billing privileges under § 424.545(a)(8) unless there are multiple instances, '■‘'at least three, where abusive billing practices have taken place ....

73 Fed. Reg. 36448, 36465 (June 27, 2008) (emphasis added).

' The Appellate Division of the HHS Departmental Appeals Board—the tribunal that issues final decisions on appeals of revocations—has previously relied on this comment when determining whether a provider abused his billing privileges. See Howard B. Reife, D.P.M. v. Ctrs. for Medicare & Medicaid Servs., DAB No. 2527, 2013 WL 5310189 (Aug. 1, 2013) (upholding revocation where twenty-five claims were submitted for services to deceased patients). Therefore, Stubbs’s contention that his revocation will be reversed because he only submitted twenty-nine claims is without merit.

Stubbs also argues that the submission of the twenty-nine claims was accidental. This argument is also unavailing because he does not make this assertion in his declaration, or provide any explanation as to how the claims were accidently submitted. While Stubbs provides in his affidavit that he anticipates that his request for reconsideration will be successful, his own belief is not evidence. Without more, the Court is unable to agree that it is likely the ALJ will find that the Medicare regulation does not actually apply to his actions.

2. Stubbs Has Not Shown Irreparable Injury

Stubbs argues that he will be irreparably harmed if CMS is not stopped from revoking his Medicare billing privileges because revocation “will certainly force [him] out of the practice of medicine within a few months.” [5] at 15. While this might be true, Stubbs has not met his burden of showing irreparable injury.

First, Stubbs’s assertion is unsubstantiated, given the need for financial records or other evidence demonstrating the substantial harm that he will suffer. See Am-Med Diabetic Supplies, Inc. v. Palmetto GBA, LLC, No. 15-81452-CIV-MARRA, 2016 WL 11110558, at *5 (S.D. Fla. Nov 2, 2015) (“Although Plaintiff states that it is ‘likely’ that it will be forced into bankruptcy, absolutely no financial records were submitted to the Court to support this contention.”). While he does state that he will suffer financial hardship, he does not provide any information explaining how much longer he can continue practicing or the timetable for when he will be forced to shut down his practice.

Next, the time period that CMS has to rule on a provider’s request for reconsideration is only ninety days. This is not an undue amount of time to be without billing privileges. Even if the ninety days were to be construed as sufficiently causing irreparable injury, Stubbs’ actions do not demonstrate apprehension. He has known about the revocation since early May but still has not submitted a request for reconsideration of the revocation decision.

Finally, full retroactive relief—any unpaid Medicare claims from the revocation period—is available to Stubbs if he prevails at any stage of the administrative process. See 42 C.F.R. §§ 424.545(a)(2), 405.815. “An injury is ‘irreparable’ only if it cannot be undone through monetary remedies.” Cate v. Oldham, 707 F.2d 1176, 1189 (11th Cir. 1983) (citing Deerfield Med. Ctr. v. City of Deerfield Beach, 661 F.2d 328, 338 (5th Cir. 1981)). Accordingly, Stubbs has not sustained his burden of showing irreparable injury.

3. An Injunction Would Cause Substantial Harm to the Medicare Program

“[T]he government’s interest in conserving scarce [Medicare] resources ... is much stronger than the financial interest of a corporation.” Northwest Healthcare, L.P. v. Sullivan, 793 F.Supp. 724, 727-28 (W.D. Tex. 1992) (citations omitted).

CMS has implemented an administrative . system in order to oversee compliance with the Medicare regulations and to provide adequate measures for aggrieved providers to challenge revocation determinations. This system furthers its substantial interest of ensuring that only those providers lawfully using the Medicare program are enrolled and that Medicare beneficiaries receive services only as contemplated under the law. Stubbs, a provider who has submitted claims for payment for services rendered to deceased beneficiaries, is precisely the type of provider that Medicare has an obvious interest in removing from the program. By delaying Stubbs’s revocation, the Court would be eviscerating CMS’s ability to use the procedures it enacted in order to further its interest in a fully-compliant program.

4. An Injunction Would Not Further the Public Interest

“The public interest lies in the effective administration of the Medicare Program nationwide.” Grp. Health, Inc. v. Schweiker, 549 F.Supp. 135, 145 (S.D. Fla. 1982). CMS “has a critical interest in maintaining the integrity of the Medicare program for the benefit of providers, patients, and taxpayers generally,” Neurological Assocs. H. Hooshmand, M.D., P.A. v. Bowen, 658 F.Supp. 468, 473 (S.D. Fla. 1987).

As previously mentioned, CMS developed its administrative process to ensure that it is able to retain only those providers who are lawfully using the Medicare program and furthering its integrity. Any delay in enforcing the revocation will potentially result in reimbursing those providers who are not in compliance with Medicare regulations. Thus, the public interest is actually furthered by not granting injunctive relief in this situation.

IV. Conclusion

Not only does the Court not have jurisdiction -to provide Stubbs’s requested relief, but he is also not able to demonstrate that he is entitled to preliminary injunctive relief. Accordingly, this Court DENIES Stubbs’s motion for a preliminary injunction [5] and the case is dismissed. The Clerk is directed to close this case.

IT IS SO ORDERED this 6th day of July, 2017. 
      
      . Again, Stubbs mischaracterizes the analysis for determining whether he is entitled to preliminary injunctive relief. Stubbs characterizes the inquiry as whether he has a substantial likelihood of success of prevailing on the merits of the revocation dispute at a future AU hearing, while the inquiry should actually be whether he would have a substantial likelihood of success on the merits as to his procedural due process claim—i.e., whether the law demonstrates that he is entitled a pre-termination administrative hearing before his privileges can be revoked. Nonetheless, the Court will demonstrate that Stubbs fails even under his own. characterization.
     
      
      . The applicable regulation—42 C.F.R. § 424.-53 5(a)(8)(i)—provides that revocation is warranted when:
      The provider or supplier submits a claim or claims for services that could not have been furnished to a specific individual on the date of service. These instances include but are not limited to the following situations:
      (A) Where the beneficiary is deceased
      
        
      
     
      
      . Stubbs also makes a general claim that this Court has jurisdiction over this action pursuant to 28 U.S.C. § 1651, the All Writs Act. The Eleventh Circuit requires that in order to be entitled to a preliminary injunction in the Medicare context, pursuant to the All Writs Act, the plaintiff must satisfy a “heightened standard” by showing (1) a virtual certainty of success on the merits of the underlying administrative proceeding; (2) a virtual certainty of irreparable injury; (3) minimal harm to the agency; and (4) that the public interest clearly favoring the assumption of jurisdiction. V.N.A. of Greater Tift Cty., Inc. v. Heckler, 711 F.2d 1020, 1033-34 (11th Cir. 1983). As shown above, Stubbs cannot even show that he is likely to succeed on the merits of his underlying administrative proceeding. See supra Section II.B.l. Therefore, this argument is meritless.
     