Dr. Merrick’s Medicare Battle Continues at National Level
BY JASON MARTIN
McKENZIE — The plight of Dr. Bryan Merrick to recover his Medicare billing privileges continues as the local physician is forced to weed through the bureaucratic red tape of Washington, D.C. Members of the community have asked U.S. Representative David Kustoff (R-TN) along with Senators Lamar Alexander (R-TN) and Bob Corker (R-TN) to intervene on the doctor’s behalf.
Merrick stands accused of abusing his Medicare privileges through 30 alleged fraudulent billing claims over a 20-month period. Half the clerical error claims result from a partnership with the doctor and Centers for Medicare and Medicaid Services (CMS). CMS requested a number of claims to be refiled, but failed to inform the doctor or his staff that the patient in question was deceased.
Currently, Merrick has filed an appeal requesting an administrative law judge; the case could stand three to four months before the request is heard. If that appeal is denied, he can request a hearing with a three-person federal review board. This would also take three to four additional months.
The entire appeal process could linger for year or more before all options are exhausted.
Officials from Kustoff ’s and Alexander’s office have reiterated multiple times that
Photo by Jason Martin/The Banner only so much can be done by their office due to a matter of ethics, but all have said on the record they aware of the situation and working towards an expeditious resolve to the matter.
Former state senator and legal counsel for Merrick, Roy Herron, requested Kustoff’s office to intervene on the behalf of the physician, “from one country lawyer to one very fine city lawyer. Dr. Merrick’s chances in the administrative law process, I am told are slim or none. One health care attorney told me an esteemed colleague had lost 18 of 20 cases that were similarly situated.”
“Another attorney told me yesterday that he’d lost 3 of 3 cases, also in egregious situations. When CMS takes a physician’s Medicare number, the administrative law judge does not, for technical legal reasons I’m told, reverse that. Simply put…if you do not help Dr. Merrick, there is virtually no chance that he will be helped,” continued Herron’s petition.
In mid-October, Congressman Kustoff met with the embattled physician in McKenzie making the lone offer to request a quicker administrative law judge hearing for Merrick’s appeal. In all likelihood, the hearing would not go in the doctor’s favor. The congressman was asked by Herron, “Personally and in person to ask the head of CMS (Seema Verma) for an appointment so that she can interview Dr. Merrick and ask each and every question she or her agency have about the ten patients.”
Merrick said the congressman looked him in the eye and said he believes his side of the story, but the doctor feels that Kustoff is not “all in” on his behalf. Dr. Merrick reiterated the point to Kustoff that instead of crossing his fingers for an expedited hearing he needed more help. “This needs to go to the top”— to the top administrator at the federal agency that has revoked Merrick’s right to serve Medicare patients.
In recent weeks, Merrick has met with Senator Alexander and his staff in Washington and Senator Corker’s staff.
Senator Alexander’s chief of staff, David Cleary stated on record, “At Dr. Merrick’s request, staff contacted CMS numerous times to obtain more information about his case and to discuss the additional documentation that Dr. Merrick provided in support of his assertion that the billing claims he submitted to Medicare for deceased patients was due to a clerical error.”
Cleary continued, “Our staff also asked CMS if there was an alternative to suspending Dr. Merrick’s billing privileges because of the impact this decision will have on his patients and the McKenzie community. CMS did consider the additional documentation that was provided by Dr. Merrick, but did not change its decision to suspend his Medicare billing privileges because Dr. Merrick submitted reimbursement claims for deceased patients.” McKenzie Mayor Jill Holland spoke to key figures in trying to reinstate Merrick’s Medicare billing privileges. Mayor Holland said, “In a brief meeting with Senator Alexander last week, he said he could do two things; number one: ask the head of CMS to meet with Dr. Merrick, (which I understand he and Congressman Kustoff have sent her a letter requesting this) and number two: request a hearing for Dr. Merrick with the Senate Finance Committee.”
On Friday, November 3, Senator Corker wrote a letter to CMS requesting a meeting between Verma and Merrick. After consecutive weeks of formal requests from federal representative for a proposed meeting, ignoring the requests should become increasingly difficult. Senator Alexander asked the Senate Finance Committee to hold a hearing to learn more about whether the regulations published on December 5, 2014, known as the “Medicare Program; Requirements for the Medicare Incentive Reward Program and Provider Enrollment; Final Rule” and the regulations regarding the abuse of billing privileges defined in 42 CFR 424.535(a)(8) are sound and being implemented properly. Senator Orin Hatch (R-UT) heads the committee.
As the saga of Dr. Merrick’s journey continues a new player in the drama is the executive branch of the federal government. The Executive Office of the President (EOP) serves as an umbrella organization overseeing the Department of Health and Human Services (HHS).
Agencies of HHS conduct health and social science research, work to prevent disease outbreaks, assure food and drug safety and provide health insurance. In layman’s terms, the EOP administers have authority over Medicare and could possibly reinstate Merrick’s privileges at the President Donald Trump’s request.
Dr. George Flinn, who sought the House seat for the 8th District of Tennessee, has reached out to President Trump on the behalf of Merrick and other doctors facing the same penalty for clerical errors.
“I am asking you to direct Seema Verma,), 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…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.”
Flinn’s letter to the president continues, “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.”
As pressure mounts on Washington, D.C. to reinstate Merrick privilege, Mayor Holland added, “A lot of the area and Tennessee media have done a great job of getting this problem out in the open. I understand it is not an isolated incident, and numerous doctors have received similar notices because of minor infractions.”
The Merrick Family along and community leaders ask for the pressure to continue and keep the momentum going. They believe the legislators need to hear from the doctor’s patients and supporters.
“All we can do to continuing praying for the best and put it in God’s hands,” Dr. Merrick said with a positive tone.
“I did not do anything personally or professionally unethical. These are honest mistakes made by people who I had no direct control over,” he said.
“No harm was done to Medicare because no money was ever paid.”
After an unblemished 31-year career in medicine, Merrick is being forced to fight to retain his livelihood. During the 20-month period in question, Merrick’s office filed approximately 30,000 Medicare claims for patients. The 30 claims account for less than one-tenth of 1% of all billings. In other words, 99.9% of the 30,000 billings are not in dispute and in accordance with CMS guidelines.
The estimated value of the wrongful billings is $670, which was never paid to the doctor or McKenzie Medical Center (MMC). All 30 claims are the result of clerical errors made by others, not Dr. Merrick.
The penalty of these infractions is suspending his Medicare billing privileges for at least three years. Meaning, he has a valid medical license and can treat patients with private insurance or self-pay, and can participate in the treatment of Medicare patients as long as a nurse practitioner assists in the actual treatment.
Dr. Merrick, 62, would be retirement age by the time the threeyear suspension is lifted. I has been noted, McKenzie Medical Center will remain open. Other physicians, nurses and physician assistants are able to continue treating Medicare patients.
If Dr. Merrick is forced into early retirement, his support staff of ten employees might lose their jobs at MMC.
“I did not do anything personally or professionally unethical. These are honest mistakes made by people who I had no direct control over.”
— Dr. Bryan Merrick