United States District Court, S.D. Mississippi, Eastern Division
MEMORANDUM OPINION AND ORDER
STARRETT UNITED STATES DISTRICT JUDGE
reasons below, the Court denies
Plaintiff's Emergency Motion for Temporary Restraining
Order and Preliminary Injunction . Plaintiff's Motion
for Enforcement of Agreement  is, therefore,
a medical service provider, alleges that Defendant has
wrongfully recouped Medicare reimbursements for the past two
years. Most of the disputed reimbursements are for
urine-based drug testing. According to the Medicare Appeals
Council (“MAC”), Plaintiff conducted
“frequent combined qualitative and quantitative urine
drug testing to ensure patients' compliance with their
drug regimens and to identify patients who may be abusing
illicit or non-prescribed controlled substances or . . .
diverting their prescribed substances into the
community.” Exhibit 1 to Response at 8, Inland
Family Practice Ctr., LLC v. Azar, No.
2:18-CV-140-KS-MTP (S.D.Miss. Aug. 24, 2018), ECF No. 17-1.
But, according to the MAC:
It is clear from the pertinent coverage authorities that
Medicare supports, and reimburses, random drug testing for
individuals on drugs of potential abuse for chronic pain who
are at high risk or have engaged in aberrant behavior, as
well as baseline testing. However, absent sufficient
supporting evidence, Medicare will not cover a
physician's testing at frequent visits of many possible
drugs for which there has been no documented history of use
or abuse. Such testing frequency is particularly concerning
when the entity billing for drug testing is also ordering the
tests and where there is thus a financial incentive to profit
from unnecessary tests.
* * *
Thus, in each instance, there must be beneficiary-specific
documentary evidence, sufficient by Medicare standards, in
order to adequately demonstrate the medical necessity of
claims for purposes of obtaining Medicare coverage.
Id. at 11-12. According to the MAC, Plaintiff's
records contained insufficient evidence to justify coverage
of the frequent drug testing in most cases. Id. at
12. The MAC denied Plaintiff's appeal with respect to
most of the services. Id. at 5.
filed suit in this Court and filed an Emergency Motion for
Temporary Restraining Order and Preliminary Injunction ,
requesting that the Court immediately enjoin Defendant from
recouping any further reimbursements. The parties reached an
agreement with respect to the request for a TRO, and
Defendant agreed to stop recouping payments until the Court
addressed Plaintiff's Motion for a Preliminary Injunction
. The Court held a hearing on the motion on September 5,
obtain a preliminary injunction, “the plaintiff must
establish four elements: ‘(1) a substantial likelihood
of success on the merits; (2) a substantial threat that the
movant will suffer irreparable injury if the injunction is
denied; (3) that the threatened injury outweighs any damage
that the injunction might cause the defendant; and (4) that
the injunction will not disserve the public
interest.'” Jackson Women's Health Org. v.
Currier, 760 F.3d 448, 452 (5th Cir. 2014) (quoting
Hoover v. Morales, 164 F.3d 221, 224 (5th Cir.
1998)). “A preliminary injunction is an extraordinary
remedy that should not be granted unless the party seeking it
has clearly carried the burden of persuasion on all four
requirements.” Dennis Melancon, Inc. v. City of New
Orleans, 703 F.3d 262, 268 (5th Cir. 2012).
Court need only address one of the elements cited above:
whether Plaintiff has demonstrated a substantial likelihood
of success on the merits. This is an administrative appeal,
and the Court's jurisdiction to review the
Secretary's final decision arises from the Title XVIII of
the Social Security Act, where the Medicare program is
codified. See 42 U.S.C. § 1395oo(f)(1). The
statute provides that courts must review the Secretary's
decisions under the standards provided in the Administrative
Procedures Act. Id. Therefore, the Court is only
permitted to set aside the Secretary's decision if it was
“arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with the law or unsupported by
substantial evidence.” Cedar Lake Nursing Home v.
U.S. Dep't of Health & Human Servs., 619 F.3d
453, 456 (5th Cir. 2010) (punctuation omitted) (quoting 5
U.S.C. § 706(2)).
and capricious review focuses on whether an agency
articulated a rational connection between the facts found and
the decision made.” ExxonMobil Pipeline Co. v. U.S.
Dep't of Transp., 867 F.3d 564, 571 (5th Cir. 2017)
(quoting Pension Benefit Guar. Corp. v. Wilson
N. Jones Mem'l Hosp., 374 F.3d 362, 366 (5th Cir.
2004)). An agency's decision is also arbitrary and
. . . the agency has relied on factors which Congress has not
intended it to consider, entirely failed to consider an
important aspect of the problem, offered an explanation for
its decision that runs counter to the evidence before the
agency, or is so implausible that it could not be ascribed to
a difference in view or the product of agency expertise.
Baylor County Hosp. Dist. v. Price, 850 F.3d 257,
264 (5th Cir. 2017) (quoting Tex. Oil& Gas
Ass'n v. EPA, 161 F.3d 923, 933 (5th Cir. 1998)).
“So long as the agency's reasons and policy choices
conform to minimal standards of rationality, then its actions
are reasonable and must be upheld.” Id.
“[T]here is a presumption that the agency's
decision is valid, ” Markle Interests, LLC v.
United States Fish & Wildlife Serv., 827 F.3d 452,
460 (5th Cir. 2016), and the “party challenging the
agency's action bears the burden of ...