Opinion
Cause No. IP01-0562-C-H/G
June 4, 2002
Nelson G Grills, Attorney at Law, Indianapolis, IN., for Plaintiff.
Thomas E Kieper, United States Attorney's Office, Indianapolis, IN., for Defendant,
ENTRY ON JUDICIAL REVIEW
This is an action for judicial review of a decision by the Secretary of Health and Human Services denying a claim by plaintiff Bertschland Family Practice Clinic, P.C. ("Bertschland") for payment of interest on a long-disputed amount of reimbursement for medical services covered by the federal Medicare program.
Bertschland accepted Medicare payments for laboratory services it provided to patients in 1989. During an administrative review process that spanned more than 10 years, Bertschland first was required to repay Medicare about $20,000 after Medicare concluded that certain services for which it had paid Bertschland were not covered by the program. This repayment amount is known as an "overpayment" under Medicare regulations. Bertschland paid Medicare that amount and then pursued appeals. After some interim reductions to the overpayment, on August 5, 1997, an administrative law judge ("ALJ") determined that Bertschland was liable for an overpayment of only about $800. On December 11, 1998, the ALJ determined that Medicare owed Bertschland interest on the amount that Bertschland was forced to repay in error for the period beginning with the ALJ's August 5, 1997 decision that reduced the overpayment. Because Bertschland already had repaid the overpayment in full long before the ALJ's decision, Medicare then owed Bertschland a partial reimbursement of the overpayment. This reimbursement amount is known as an "underpayment" under Medicare regulations.
Bertschland does not challenge the amount of the overpayment it ultimately was required to repay, but it seeks judicial review of the ALJ's December 11, 1998 decision on the interest issue, which became the final decision of the Secretary of the United States Department of Health and Human Services, the agency that supervises Medicare. Bertschland contends that it is entitled to interest on the underpayment for the period beginning September 28, 1990 — the date of the original but erroneous overpayment decision by Medicare.
As explained below, the court affirms the Secretary's decision. Under 42 U.S.C. § 1395l and 42 C.F.R. § 405.376 (1995), interest was not payable to Bertschland until the period beginning August 5, 1997, the date when the ALJ made a "final determination" that there had been an underpayment.
Background
The Medicare program has three parts: hospital insurance ("Part A"), supplemental medical insurance ("Part B"), and Medicare+Choice ("Part C"). The Secretary of Health and Human Services administers Medicare through the Centers for Medicare and Medicaid Services ("CMS"), a component agency of the United States Department of Health and Human Services. CMS formerly was known as the Health Care Financing Administration ("HCFA"). See 66 Fed. Reg. 36583, 36584 (July 12, 2001). Congress authorized the Secretary to contract with private entities (usually insurance companies) for the performance of certain routine claim processing functions. 42 U.S.C. § 1395h 1395u. These contractors are called "fiscal intermediaries" under Part A and "carriers" under Part B. See 42 U.S.C. § 1395h(A) 1395u(a). This matter arises under Part B, 42 U.S.C. § 1395j through 1395w-4, which covers, among other things, certain costs associated with physician services, hospital outpatient services, lab services and diagnostic tests, and some home health services.
Payment under Medicare is generally made directly to the provider or supplier of covered services. When a carrier receives a request for reimbursement by a service provider, the carrier makes an initial determination as to whether the claim is payable and, if so, the amount due. To determine whether it should make payment, a carrier may use postpayment audits or prepayment utilization reviews. Most of the millions of Medicare claims are reviewed on a postpayment "honor system." The carrier pays the claim upon receipt of a minimum set of information and later audits the physician's or supplier's underlying documentation of medical necessity and other such requirements. In contrast, in prepayment utilization reviews, providers must submit the documentation that justifies payment for each billed service before the carrier will make payment. See Farkas v. Blue Cross Blue Shield of Michigan, 803 F. Supp. 87, 91 (E.D. Mich. 1992) (discussing prepayment v. postpayment review). In this case, postpayment review was used. See R. 23.
The Part B administrative review process has several layers. A medical provider who does not agree with a carrier's initial determination may ask the carrier to reconsider. 42 C.F.R. § 405.807. Upon completion of that review, if the provider remains dissatisfied with the carrier's decision and the amount in controversy is $100 or more, the provider may request a non-adversarial carrier hearing before a hearing officer. 42 C.F.R. § 405.815 405.821. After the carrier hearing, if the amount in controversy is $500 or more, the provider may request a hearing before an ALJ. 42 C.F.R. § 405.855.
Upon receipt of an adverse ALJ decision, a dissatisfied party may ask for discretionary administrative review by, in this case, the Medicare Appeals Council. If the Medicare Appeals Council declines review, the ALJ's decision stands as the final decision of the Secretary. 20 C.F.R. § 404.981. After exhausting administrative remedies, if the amount in controversy is $1,000 or more, a provider may seek judicial review of the Secretary's final decision in federal district court. 42 U.S.C. § 405(g) 1395ff(b)(2)(B); 42 C.F.R. § 405.857.
The Secretary has pointed out that the Departmental Appeals Board (DAB) has taken over from the Medicare Appeals Council the authority to review ALJ decisions in Medicare Part B cases. See 62 Fed. Reg. 25844, 25849 (May 12, 1997). The court refers to the Medicare Appeals Council because the DAB acted under the name "Medicare Appeals Council" in this case. See R. 1, 7.
Procedural History Plaintiff Bertschland Family Practice Clinic, P.C. submitted claims for laboratory tests performed on 194 patients between April 1, 1989 and October 1, 1989. R. 23. The Carrier initially reimbursed the plaintiff for the tests but later concluded based on a postpayment audit that most of the tests were not covered by Medicare. Id. In performing the audit, the Carrier used statistical sampling. The Carrier examined claims for 15 randomly selected beneficiaries and disallowed 42 of the 48 tests performed for those 15 beneficiaries. The Carrier then divided the total cost of the disallowed services by the sample size and multiplied the quotient by 194 to determine that Bertschland had been overpaid $21,570.86 for the claims submitted. R. 147. The Carrier informed Bertschland of the overpayment in a letter dated September 28, 1990. R. 23.
The Carrier first was Associated Insurance Companies, Inc. and then AdminaStar Federal, Inc. The court refers to both companies as the "Carrier." Both were acting on behalf of the Secretary of Health and Human Services who is the real party in interest. See 42 C.F.R. § 421.5(b).
The letter stated that interest would begin to accrue on the overpayment in 30 days. R. 24. The overpayment amount was reduced to $20,637.72 on or about October 23, 1990. See R. 28-29. Bertschland repaid the overpayment in full on October 25, 1990. R. 29.
In a post-payment review, a Medicare hearing officer found that the overpayment should have been reduced by $94.44. This amount was refunded to Bertschland on or about July 31, 1991. See R. 31. The refund did not include any interest to Bertschland.
Bertschland appealed the overpayment determination. See R. 29. On June 10, 1993, ALJ Stephen E. Davis issued a decision finding that some of the disallowed laboratory tests were in fact covered by Medicare. R. 220-88. He directed the Carrier to recompute the overpayment and to refund to Bertschland the difference between the new overpayment and the $20,637.72 that Bertschland previously had paid. Based on the ALJ's decision, the Carrier refunded $6,826.86 to Bertschland. R. 32. The refund amount did not include any interest to Bertschland.
The ALJ's June 10, 1993 decision was vacated by the Medicare Appeals Council and remanded to the ALJ. See R. 37. This Appeals Council decision is missing from record. According to the Secretary, the Appeals Council issued its remand order on February 10, 1995. See Def. Br. at 5. According to the ALJ's later decision, the Appeals Council ordered the ALJ to develop the record, reconsider certain issues, conduct further proceedings, and issue a new decision. R. 37.
On August 5, 1997, the ALJ found on remand that the statistical sample the Carrier used to determine the amount of overpayment had not been constructed in accordance with the guidelines in the Medicare Carriers' Manual.
Thus, he reversed the portion of the overpayment that was calculated by extrapolating from the sample, and he considered only the individual laboratory tests given to the beneficiaries in the sample. After doing so, he concluded that some of the individual services should have been covered, and so the final overpayment was only $861.53. R. 107. The ALJ directed the Carrier to refund to Bertschland the remainder of what it had been charged. At that point in time, that remainder had become an "underpayment" under the Medicare regulations because Bertschland had earlier repaid Medicare, and the Carrier therefore owed that amount back to Bertschland due to the ALJ's decision. The ALJ also directed the Carrier to calculate any interest that might be due on the underpayment. R. 106.
The Carrier determined that the underpayment owed to Bertschland at that time totaled $12,854.89. R. 135. On January 5, 1998, the Carrier sent Bertschland a letter explaining that no interest was due, in the Carrier's view, because payment would be made within 30 days of the "final determination," the relevant term under the Medicare statute and its implementing regulations.
According to the Carrier, the final determination occurred with the Carrier's calculation of the amount of the underpayment in its January 5, 1998 letter. It is not clear if a check was enclosed with the January 5, 1998 letter or if payment was made within the next 30 days.
Bertschland disagreed with the Carrier on the interest issue. In a letter dated February 23, 1998, Bertschland's counsel asked the ALJ to find that interest on the underpayment had been accruing since September 28, 1990 — the date the Carrier first notified Bertschland of the original overpayment. R. 118-19.
On December 11, 1998, the ALJ issued a Supplemental Decision finding that the "final determination" from which interest on the underpayment accrued was neither the date when the Carrier made a determination that there was an overpayment (as Bertschland argued) nor the date when the Carrier calculated the amount of the underpayment (as the Carrier argued). Relying on 42 C.F.R. § 405.376 (c)(1)(ii)(C) (1995) and a December 14, 1993 letter that the Acting Branch Chief for the Financial Management Branch of Medicare sent to all contractors, the ALJ found that his August 5, 1997 decision was the "final determination" of the matter because it reduced the amount of the overpayment below the amount that HCFA (now CMS) had collected. R. 128. The ALJ instructed the Carrier to pay Bertschland interest on $18,555.93 (representing the payment Bertschland originally made minus the amount the overpayment was eventually determined to be) from August 5, 1997 until the date the money was refunded. In fact, $6,921.30 of that sum had already been refunded to Bertschland before August 5, 1997. R. 135.
The agency letter clarified that ALJ decisions that reduce the amount of an overpayment that a provider has repaid are final determinations that trigger interest obligations under 42 C.F.R. § 405.376. R. 130-31. In contrast, the letter explained, ALJ decisions on other issues, such as Medicare coverage, are not "final determinations" for interest purposes. Id.
Bertschland appealed the ALJ's December 11, 1998 Supplemental Decision to the Medicare Appeals Council. On November 23, 1999, the Appeals Council vacated the supplemental decision and remanded the matter to the Office of Hearings and Appeals because it was unable to obtain the complete record. R. 8. The Appeals Council wrote that the case would be assigned to an ALJ on remand for reconstruction of the existing record or the development of a new record, including a de novo hearing. The remand order also stated that the Appeals Council would vacate its remand order and consider Bertschland's request for review if the file was located.
On June 20, 2000, an attorney adviser from the Office of Hearings and Appeals returned the file to the Departmental Appeals Board and requested expedited review of the matter. R. 5-6. His letter explained that the plaintiff's attorney was not interested in having an ALJ conduct an appeals hearing on the interest issue. On August 3, 2000, Bertschland's counsel directly informed the Departmental Appeals Board that his client was willing to have the ALJ decide the interest issue on the briefs alone without any hearing. R. 3.
On February 28, 2001, the Medicare Appeals Council issued its Action of Medicare Appeals Council on Request for Review. R. 1. The Appeals Council denied Bertschland's request for review and wrote that "the Administrative Law Judge's decision stands as the final decision of the Secretary." The Appeals Council did not acknowledge that its November 23, 1999 order had vacated the ALJ's December 11, 1998 supplemental decision on the interest issue. However, it appears to the court, and the parties agree, that the Appeals Council's decision denying further review intended to make the ALJ's December 11, 1998 Supplemental Decision the Secretary's final decision on the interest issue.
The court discussed the February 28, 2001 Medicare Appeals Council order with the parties' counsel during a conference on April 19, 2002. After the conference, the Secretary filed a supplemental statement explaining that the ALJ's December 11, 1998 Supplemental Decision was in fact the Secretary's final decision on the claim for interest. Such a final decision is a prerequisite for the court's subject matter jurisdiction over this matter under 42 U.S.C. § 405(g).
Preliminary Matters Plaintiff Bertschland filed a submission entitled "Correction of the Record," which seeks to add to the administrative record three documents marked as Exhibits G, H, and I. These documents were exhibits to a brief that plaintiff's counsel filed with the Office of Hearings and Appeals following the ALJ's December 11, 1998 Supplemental Decision. That brief appears in the record at R. 12-22. According to the plaintiff, Exhibits G, H, and I were omitted from the record. However, although separated from the plaintiff's brief, these documents appear in the record before the court at R. 108-26. Bertschland's motion to amend the record is denied as moot.
Standard of Review
The Medicare Act provides for the judicial review of final decisions by the Secretary of Health and Human Services regarding the amounts of benefits paid under Medicare B. See 42 U.S.C. § 1395ff(a) (b). The deferential "substantial evidence" standard of review for Social Security benefit appeals applies. See 42 U.S.C. § 1395ff(b), incorporating by reference 42 U.S.C. § 405(g). When the
42 U.S.C. § 1395ff was amended on December 21, 2000 by P.L. 106-554 (2000). Those amendments will apply with respect to initial determinations made on or after October 1, 2002. See 42 U.S.C. § 1395ff note 1320c-3 note. The amended § 1395ff continues to incorporate the judicial review provisions of 42 U.S.C. § 405(g).
Medicare Appeals Council denies review of an ALJ's decision, the ALJ's decision becomes the final decision of the Secretary. See 20 C.F. R. § 404.981; see also Henderson v. Apfel, 179 F.3d 507, 512 (7th Cir. 1999) (applying the same principle in a Social Security benefits case). If the Secretary's findings of fact are supported by substantial evidence, the findings must be upheld by a reviewing court. 42 U.S.C. § 405(g). A reversal and remand may be required if the ALJ committed an error of law, Nelson v. Apfel, 131 F.3d 1228, 1234 (7th Cir. 1997), or if the ALJ based the decision on serious factual mistakes or omissions.
Sarchet v. Chater, 78 F.3d 305, 309 (7th Cir. 1996). Here, there are no factual disputes. The question on judicial review is the correct interpretation of the Medicare statute and regulation that govern the payment of interest on underpayments.
The Secretary asserts that his interpretation of the Medicare statute and regulation at issue is entitled to deference under Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-45 (1984) (reviewing courts must give agency interpretation deference with regard to a statute within its purview so long as it is a permissible construction of the statute). However, in United States v. Mead Corp., the Supreme Court found that not all of an agency's interpretations of the laws it administers are entitled to "Chevron deference." 533 U.S. 218, 226 (2001). The Court explained: "administrative implementation of a particular statutory provision qualifies for Chevron deference when it appears that Congress delegated authority to the agency generally to make rules carrying the force of law, and that the agency interpretation claiming deference was promulgated in the exercise of that authority." Id. at 226-227. A showing of such delegation of authority may be made through an agency's power to engage in adjudication or notice-and-comment rulemaking. Id.
The Court recently has clarified that an agency interpretation reached through less formal means does not necessarily deprive that interpretation of Chevron deference. Barnhart v. Walton, ___ U.S. ___, 122 S.Ct. 1265, 1271-72 (2002) (absence of notice-and-comment rulemaking is not dispositive; the court applied Chevron deference in light of factors including the "interstitial nature of the legal question," the agency's expertise, the importance of the issue to the administration of the statute, the complexity of that administration, and the agency's long-time consideration of the issue); see also Indiana Family Social Services Admin. v. Thompson, 286 F.3d 476, 480 (7th Cir. 2002) (agency interpretations subject to notice-and-comment or "comparable formalities" qualify for Chevron deference). Even if agency interpretations do not meet the standards for Chevron deference, some degree of deference still may be appropriate, depending upon factors such as the specialized experience and broader investigations and information available to the agency, and the value of uniformity in its administrative and judicial understandings of what a national law requires. Mead, 533 U.S. at 234-35, citing Skidmore v. Swift, 323 U.S. 134, 139-40 (1944); see also American Federation of Government Employees v. Rumsfeld, 262 F.3d 649, 658 (7th Cir. 2001) (agency policy expressed in internal memoranda was not entitled to Chevron deference but deserved "respect").
The current scope and vitality of Chevron do not, however, affect the outcome of this case. This matter concerns primarily the Secretary's interpretation of an agency regulation. Such an interpretation is entitled to "substantial deference," as the Court stated in Thomas Jefferson University v. Shalala, 512 U.S. 504, 512 (1994). Mead and Barnhart v. Walton do not undermine such deference to an agency's interpretation of its own regulations.
"Courts grant an agency's interpretation of its own regulations considerable leeway." Barnhart v. Walton, ___ U.S. at ___, 122 S.Ct. at 1269, citing Auer v. Robbins, 519 U.S. 452, 461 (1997). In any event, the plain language of the regulation supports the Secretary's decision, so the precise degree of deference to the Secretary does not affect the outcome of the case.
Discussion
Plaintiff Bertschland Family Practice Clinic contends that the Secretary's decision denying interest on the underpayment from the time plaintiff received notice of the partially erroneous overpayment violates the controlling Medicare statute and regulation. The Secretary contends that the ALJ's Supplemental Decision on the interest issue was correct under the Medicare statute and regulations and that no interest is due for the period before the ALJ's August 7, 1997 decision that dramatically reduced the amount of the overpayment to Bertschland.
Bertschland also had argued earlier that the Secretary's decision violated the takings clause of the Fifth Amendment of the United States Constitution, but Bertschland has abandoned that claim. In response to the Secretary's brief, Bertschland wrote that the takings clause issue "need not be resolved." See Pl. Reply Br. at 21.
The Secretary further argues that any other construction of the controlling Medicare statute and regulation would violate the "no interest rule," which holds that sovereign immunity bars the payment of interest by the federal government unless the interest is expressly authorized by statute. See, e.g., Library of Congress v. Shaw, 478 U.S. 310, 311 (1986). Because Bertschland has limited its claim to the statutory issue alone, there is no need to consider the sovereign immunity issue separately.
Bertschland's statutory claim turns on the question of when there was a "final determination" that Bertschland had repaid an overpayment to Medicare in excess of the amount actually owed. Stated differently, the issue is when there was a final determination that there was an underpayment to Bertschland.
The relevant Medicare statute provides:
(j) Accrual of interest on balance of excess or deficit not paid Whenever a final determination is made that the amount of payment made under this part [ 42 U.S.C. § 1395j et seq. (supplementary medical insurance program for the aged and disabled)] either to a provider of services or to another person pursuant to an assignment under section 1395u(b)(3)(B)(ii) of this title was in excess of or less than the amount of payment that is due, and payment of such excess or deficit is not made (or effected by offset) within 30 days of the date of the determination, interest shall accrue on the balance of such excess or deficit not paid or offset (to the extent that the balance is owed by or owing to the provider) at a rate determined in accordance with the regulations of the Secretary of the Treasury applicable to charges for late payments.42 U.S.C. § 1395l(j). See also 42 U.S.C. § 1395g(d) (containing identical provision for payments made under 42 U.S.C. § 1395c et seq. (hospital insurance benefits for the aged and disabled)).
42 C.F.R. § 405.376 (1995) is the controlling Medicare regulation. In general, as stated in Section 1395l, the regulation provides that HCFA (now CMS) will charge interest on overpayments and pay interest on underpayments to service providers if the payment in question is not made within 30 days.
42 C.F.R. § 405.376 (1995) has been renumbered 42 C.F.R. § 405.378, although its substantive provisions and organization have remained the same. See 61 Fed. Reg. 63740, 63745 (Dec. 2, 1996). The ALJ and the parties have cited the 1995 version of the regulation.
42 C.F.R. § 405.376(b)(1) (2). Tracking the language of Section 1395l, the regulation specifies that interest will accrue from the date of the "final determination" of the overpayment or underpayment. 42 C.F.R. § 405.376(b)(2).
In relevant part, the regulation defines "final determination" as:
(A) A written determination that an overpayment exists and a written demand for payment;
(B) A written determination of an underpayment; or (C) An Administrative Law Judge (ALJ) decision that reduces the amount of an overpayment below the amount that HCFA has already collected.42 C.F.R. § 405.376(c)(1)(ii)(C).
The ALJ determined that his August 7, 1997 decision was the "final determination" of the underpayment, which triggered an obligation to pay interest under 42 U.S.C. § 1395l and 42 C.F.R. § 405.376. R. 128. The court agrees. This situation falls squarely within the definition of final determination contained in subsection (C) of the regulation: the ALJ's August 7, 1997 decision "reduce[d] the amount of an overpayment below the amount that HCFA ha[d] already collected." 42 C.F.R. § 405.376(c)(1)(ii)(C).
The Carrier took a different position before the ALJ. As explained in the ALJ's Supplemental Decision, the Carrier had argued that a "final determination" of the underpayment occurred only when it computed the amount of the underpayment as reflected in its letter to Bertschland dated January 5, 1998. The Carrier argued to the ALJ that no interest was due because the underpayment was to be repaid within 30 days of the letter. See R. 127. It is unclear exactly when Bertschland received the underpayment reimbursement, although he has not alleged he was not repaid.
Bertschland contends that interest on the underpayment began accruing on September 28, 1990 when the Carrier first notified it of the overpayment.
Bertschland relies on the regulation's definition (A) of "final determination," which pertains to overpayments. See 42 U.S.C. § 405.376(c)(1)(ii)(A) (defining "final determination" as "a written determination that an overpayment exists and a written demand for payment"). Bertschland also has cited language from the regulation that contains further guidance on the interest that accrues on overpayments: "if a carrier makes a final determination that an overpayment to a physician or supplier exists, interest will accrue beginning with the date of such final determination. Interest will continue to accrue during periods of administrative and judicial appeal and until final disposition of the claim." 42 U.S.C. § 405.376(e)(1). In addition, Bertschland points to § 405.376(h)(2), which states: "If an overpayment or an underpayment determination is reversed administratively or judicially, and the reversal is no longer subject to appeal, appropriate adjustments will be made with respect to the overpayment or underpayment and the amount of interest charged."
Bertschland admits that part (C) of the regulation's definition of "final determination," which pertains to an ALJ's decision that converts an overpayment to an underpayment, applies to its claim. See Pl. Br. at 12. However, Bertschland's improbable theory is that while liability for interest did not attach until the ALJ's decision under definition (C), the period during which interest accrued began years earlier when the overpayment first was assessed.
Bertschland's construction of 42 C.F.R. § 405.376 is inconsistent with the regulation's plain language. By their express terms, § 405.376(c)(1)(ii)(A) and § 405.376(e)(1) apply to overpayments, not underpayments. Bertschland, through its attempts to blur the distinctions between overpayments and underpayments under these parts of the regulation, seeks to read a symmetry into the regulation that simply is not there. Bertschland is correct that the regulation would have required it to pay interest on the overpayment after 30 days even while Bertschland was challenging the overpayment. However, the converse is not true for the government. Under § 405.376(c)(1)(ii)(C), liability for interest on an underpayment which results from the reduction of an overpayment by an ALJ is triggered only by the ALJ's decision. See National Medical Enterprises v. Sullivan, 960 F.2d 866, 869 (9th Cir. 1990) (rejecting argument that erroneous "notice of program reimbursement" triggered interest obligation under 42 U.S.C. § 1395g(d) 42 C.F.R. § 405.376(c)(1)(i) (1990):
"Congressional intent was not, as [plaintiff] contends, that providers receive interest for the years it takes to resolve disputes over Medicare reimbursement.").
In addition, the language of § 405.376(h)(2) regarding "adjustments" to "the amount of interest charged" in the case of a reversal of an overpayment or underpayment does not apply to Bertschland's claim for interest. As the Second Circuit has explained, "the mention of subsequent judicial decisions relates only to stopping rather than starting the accrual of interest." Cosgrove v. Sullivan, 999 F.2d 630, 633 (2d Cir. 1993) (holding that judicial decisions are not "final determinations" under 42 C.F.R. § 405.376). The same reasoning applies to subsequent administrative decisions.
The regulation's "legislative" history further supports the Secretary's construction of 42 C.F.R. § 405.376. The agency considered and rejected the very argument that Bertschland makes here:
Comment: Three commenters stated that in those cases where an overpayment has been reversed on appeal, no interest has been paid to the provider or supplier for the period during which the appeal was in process. The commenters believe that the providers and suppliers should receive interest payments on monies withheld by HCFA for an overpayment that is later determined not to exist.
Response: As stated in the proposed rule, if findings are reversed or changed upon administrative or judicial review, any interest erroneously collected will be refunded to the provider or supplier.
However, HCFA can only pay interest or otherwise disburse funds when the payment is authorized by law. We are not authorized to pay interest on collected amounts that are later paid to the provider or supplier when a determination is made that an overpayment does not exist. As provided by section 1815(d) and 1833(j) of the Act, we will pay interest if the provider or supplier is not paid in full within 30 days of the determination that money is due the provider or supplier. Consequently, interest payments on monies withheld would not begin until 30 days after the determination of an erroneous collection is made.56 Fed. Reg. 31332, 31333-34 (July 10, 1991) (emphasis added).
Thus, under 42 U.S.C. § 1395l and 42 C.F.R. § 405.376, the ALJ's August 5, 1997 decision that reduced the amount of the overpayment Bertschland already had repaid was the "final determination" that triggered an obligation to pay interest if the underpayment was not refunded within 30 days.
The ALJ's December 11, 1998 Supplemental Decision is affirmed. The Secretary is responsible for paying Bertschland interest on the amount of the underpayment due on August 5, 1997 only for the period beginning 30 days after the final determination.
Conclusion
For the reasons discussed above, the Secretary's decision is AFFIRMED.
Final judgment will be entered accordingly.