Edgar A. Gamboa, M.D., Medical Corp. v. Becerra

Background

Dr. Edgar Gamboa sought judicial review of a Medicare Appeals Council decision concerning his billing for ClariVein procedures. ClariVein is a device and procedure for treating varicose veins. During the relevant period, no specific Current Procedural Terminology (CPT) code existed for ClariVein.

Dr. Gamboa initially billed the procedures using CPT code 37241, for vascular embolization or occlusion, based on guidance from a ClariVein representative and the American Medical Association’s CPT Assistant tool. After being told in June 2016 that Noridian Healthcare Solutions, LLC preferred CPT code 36299, an unlisted vascular-injection procedure code, he used that code for eight procedures. A program-integrity contractor later concluded that code 37241 was incorrect and reduced the reimbursement rate. Noridian then determined that Dr. Gamboa had been overpaid by approximately $376,000.

The administrative law judge ruled in Dr. Gamboa’s favor, finding that the published Medicare coverage materials were inconsistent and that he was “without fault.” The Medicare Appeals Council reversed. It concluded that ClariVein procedures should have been reported under code 36299 rather than code 37241 and that Dr. Gamboa was not without fault for the overpayments.

The court’s review of the coding decision

The court affirmed the Council’s determination about the correct CPT code. It held that the Council’s factual finding was supported by substantial evidence, meaning enough relevant evidence that a reasonable person could accept it as adequate. The Council relied on two Noridian coverage articles stating that providers should use CPT code 36299 when billing for ClariVein treatment of varicose veins.

The court rejected Dr. Gamboa’s argument that the coding issue turned on whether he had received approximately the same payment under codes 37241 and 36299. The court explained that whether he used the correct code was separate from the amount of any overpayment. It therefore denied Dr. Gamboa’s motion for summary judgment seeking reversal of the Council’s coding determination.

The court’s review of the fault determination

The court did not decide whether the statutory waiver for providers who are “without fault” remains available under 42 U.S.C. § 1395gg(c). Instead, it assumed that Dr. Gamboa could be eligible for that waiver for purposes of this case.

The court held that the Council failed to properly apply the Medicare Financial Management Manual’s standards for determining fault. Those standards require consideration of whether the provider exercised reasonable care in billing and accepting payment and had a reasonable basis for believing the payment was correct. The court found that the Council did not make adequate findings about whether the payments Dr. Gamboa received were reasonable.

The court also held that the Council’s fault finding was not supported by substantial evidence. The Council relied primarily on coverage articles indicating that code 37241 should not be used for ClariVein. But the applicable coverage determinations did not directly address ClariVein or code 37241, and the Council recognized that the coverage articles were not entitled to substantial deference. The court further noted that the procedures were covered by Medicare and medically necessary; the dispute concerned the reimbursement amount and billing code, not whether the services were covered.

The court concluded that additional factual development was needed concerning the amounts Dr. Gamboa received and evidence he said he had submitted. It also noted that the Council had denied him an opportunity to submit written briefs and that the Manual directed further development when it was unclear whether a provider was without fault.

Disposition

The court granted in part and denied in part both parties’ motions for summary judgment. It affirmed the Council’s decision concerning the correct CPT code for ClariVein procedures, vacated the Council’s finding that Dr. Gamboa was not without fault in causing overpayments, and remanded the matter for further administrative proceedings and, if necessary, a rehearing on fault. The court denied Dr. Gamboa’s remaining arguments without prejudice.