Thompson

MEMORANDUM **

Dr. Gary Gibbon appeals a judgment ordering him to repay more than $600,000 in Medicare reimbursements he billed for nurse and therapist services provided “incident to” his own services between 1995 and 1997. Because the parties are familiar with the background facts, we restate them only to the extent necessary for this disposition.

A. Promulgation of the Physician-Presence Rule

Gibbon argues that certain rules issued by the Secretary of Health and Human Services (Secretary) were incorrectly promulgated and therefore cannot validly be applied to him. The rules at issue relate to 42 U.S.C. § 1395x(s)(l) and (2)(A), which provide that a physician is entitled to payment for services rendered “incident to” the physician’s own services. The Secretary defined “incident to” in the Medicare Carrier’s Manual (MCM), issued in 1993, as including only those services provided under a physician’s “direct personal supervision.” Gibbon argues that this definition made a substantive change in the legal standard governing reimbursement under Medicare and is invalid because it was not promulgated using the required notice and comment procedures. See 42 U.S.C. § 1395hh(a)(2).

We…