Dr. George Flinn, who narrowly lost the 2016 Republican primary in Tennessee’s 8th Congressional District to Rep. David Kustoff (R-TN-08), has asked President Trump to amend an abusive Obama-era Medicare billing regulation that has put the medical practice of a beloved West Tennessee doctor on life support.
“I am asking you to direct Seema Verma, the director of the Centers for Medicare and Medicaid Services (CMS), to amend § 424.535(a)(8), an Obama-era rule which has crushed doctors across the country. This rule is a prime example of government overreach and overregulation, which I know you are working diligently to correct,” Flinn wrote in a letter to the president on Thursday.
“The current rule, particularly section (ii), is being interpreted in a way that punishes doctors for minor errors without warning and without consideration. Specifically, this rule is being interpreted in a way that does not allow healthcare providers to fix minor errors before disciplinary action is taken. These minor errors in clerical processes can even cost some communities access to quality healthcare,” Flinn continued, adding:
A possible example of this rule being misapplied concerns a small town doctor named Dr. Bryan Merrick. Dr. Merrick, a physician in McKenzie, a small West Tennessee town, is facing the possibility of a suspend license over a $670.00 clerical error. Despite 99.9% of his claims being filed correctly, 0.01% of his claims are causing him to be denied reimbursement from CMS for seeing Medicare and Medicaid patients. Despite what appears to me a minor error, he is being accused of fraud. In fact, CMS plans to suspend Dr. Merrick’s reimbursements for three years, likely forcing him to lay off workers or go out of business if this rule is not amended over this error.
CMS themselves said on-record in a 2014 meeting that this rule is “only intended to address the most severe of situations.” But, cases like Dr. Merrick’s pop up across the country on a regular basis where regulators are overreaching and attacking those with what could only be described as minor violations. CMS is overreaching with their own rule– they should not be using their power to go after $670 worth of minor errors. This rule should be used for severe offenses, as the rule was originally written.
Flinn added that he requested Cornelius & Collins, LLP, a Nashville law firm that specializes in health care law, to prepare a report on the specifics of Dr. Merrick’s case, a copy of which he included in a separate attachment to the president.
The Tennessee Star has reported extensively on the abuses of regulatory power that have been inflicted on Dr. Merrick and his patients at the McKenzie Medical Center in rural McKenzie, Tennessee by the bureaucrats at CMS:
“This is the worst big government abuse of an individual I’ve seen,” former State Senator Roy Herron, a Democrat who represented the 24th State Senate District and a personal friend of Dr. Merrick, tells The Tennessee Star.
“Many of my Republican friends told me that if I voted for Hillary Clinton I would see a huge growth in the interventions of big government on the rights of the individual and small businesses, and they were right!” Herron adds.
Herron noted that his friend is a “family doctor about to lose his profession.”
“And his patients are about to lose their beloved physician of 30 years because the federal bureaucracy cannot tell the difference between fraud and clerical errors occurring in less than 1 in a 1,000 billings,” he says. . .
The Tennessee Star has reviewed the key documents in the case and can confirm that the federal government’s charges against Merrick seem to be weak.
On Monday, The Star reported that Senator Lamar Alexander (R-TN) has asked Senator Orrin Hatch (R-UT) to hold hearings of the Senate Finance Committee he chairs on revoking the Obama-era Medicare billing regulation which CMS cited in its notice of revocation of Medicare billing privileges sent to Dr. Merrick in March of this year.
Should President Trump amend the Obama-era regulation as Dr. Flinn asks, Congressional hearings would still play a valuable role by shedding light on the ever growing power of faceless bureaucrats who operate the federal regulatory state.
Flinn presented a compelling case for the President to act, in light of what can best be described as outrageous regulatory overreach by CMS bureaucrats in the Merrick case.
“CMS failed to perform the appropriate analysis of this matter under 42 CFR 424.535(a)(8). CMS focused excessively on the fact that the isolated billing errors involved deceased patients, rather than whether there had in fact been ‘abuse’ of billing, such as a pattern or fraudulent behavior, and failing to perform the review of the situation specified in part (ii) of the Rule to assess whether there is a ‘pattern of abusive billing,’ ” Flinn wrote in the attachment that was based on the Cornelius & Collins, LLP report.
“CMS should review this case again in light of the factors listed in 42 CFR 424.535(a)(8), as well as a review of how the revocation consideration process is performed at CMS,” Flinn continued.
“Dr. Merrick’s revocation indicates that CMS is revoking Medicare billing privileges for “Abuse of billing privileges” under 424.535(a)(8) without performing a proper analysis required by the rule; it is not considering the factors in (ii), and is misapplying the Federal Register “floor” requiring three (3) instances of non-accidental, non-isolated abusive billing practices (and is instead considering three instances as conclusive evidence of “abusive billing”, even if isolated or accidental),” he added:
a. Revocation is not appropriate for accidental or isolated billing errors:
b. Revocation 42 CFR 424.535(a) is not mandatory, but must fall within one of the categories of reasons listed.
c. CMS failed to do type of analysis required under 424.535(a)(8)(ii):
d. Use of part (i) is only for situations where services could not possibly have been performed, and with no explanation for the errors; not for services that were in fact performed, or inadvertently billed incorrectly by accident.
You can read Dr. Flinn’s letter to President Trump here:
You can read the attached letter, also sent to President Trump, based on the report prepared by Cornelius & Collins, LLP, here: