The Administrative Law Judge issued a decision on February 23, 2001 involving services furnished by the appellant to 11 beneficiaries. The Medicare Appeals Council has assumed jurisdiction of this case on its own motion because there is an error of law.

The Medicare Appeals Council has carefully considered the record before the Administrative Law Judge, including the testimony at the hearing, and a memorandum dated March 29, 2001 with attachments from the Health Care Financing Administration. ⁽¹⁾

The Administrative Law Judge found that the appellant rendered surgical assistant services during orthopedic procedures to each of the 11 beneficiaries. The Administrative Law Judge held that res judicata did not bar adjudication of these claims, that the appellant was not entitled to payment as a physician because the services were not within the scope of practice as a podiatrist under state law, but that the appellant was entitled to payment for these services as a non-physician.

We affirm and adopt the Administrative Law Judge's findings and conclusions, which are incorporated by reference herein, that 1) a prior non-precedential Administrative Law Judge decision concerning other beneficiaries and procedures is not dispositive of the issues in these cases, and 2) that the appellant was not acting as a physician, as defined in the Act and 42 CFR 410.25, when he rendered the services at issue because the services were not within the scope of his license as a podiatrist under state law. Under state law, the appellant's license to practice pediatric medicine is limited to "the diagnosis, medical, surgical, mechanical, manipulative, and electrical treatment of the human foot, including the ankle and tendons that insert into the foot and the nonsurgical treatment of the muscles and tendons of the leg governing the functions of the foot." It is undisputed that the services at issue were outside the scope of this license.

The Administrative Law Judge then concluded that these services were covered as non-physician services because the appellant was qualified to render them. It is at this point that we find that the Administrative Law Judge committed an error of law.

Medicare is a defined benefit program. As summarized in 42 CFR 410.1, section 1832 of the Social Security Act establishes the scope of benefits provided under the Medicare Part B supplementary medical insurance program. Sections 1833, 1834, 1835, and 1862 set forth the amounts of payments for Part B services, the conditions of payment, and the exclusions from coverage. Section 1861 defines the kinds of services that may be covered. As applicable herein, the implementing regulations at 42 CFR part 410 set forth the benefits available under Part B, the conditions for payment, and limitations on services. Exclusions from coverage are set forth in 42 CFR, part 405, subpart C.

Although there is ample evidence in the record supporting the Administrative Law Judge's determination that appellant is highly qualified to provide services as a surgical assistant, there are currently no provisions in 42 CFR part 410 that afford coverage, per se, to individuals performing as assistants at surgery or surgical assistants. Any coverage of these services must be derived from the scope of services covered for any given medical professional. As stated above, the Administrative Law Judge correctly concluded that these services are not covered as physician's services because they are not within the scope of a podiatrist's license under state law.

Moreover, appellant has not cited to, nor are we aware of, any other provision of the Social Security Act or the implementing regulations that would cover the appellant's services as an assistant at surgery. That these services may be covered when performed by certain non-physician surgical assistants is not material. There is no showing that the appellant meets the requirements for coverage as a physician assistant in 42 CFR 410.74, the requirements for coverage as a nurse practitioner in 42 CFR 410.75, or the requirements for coverage as clinical nurse specialist in 42 CFR 410.76. Accordingly, we find that the services at issue billed with an -80 modifier are not a covered Part B benefit.

The Medicare Appeals Council makes the following findings:

1. The Administrative Law Judge's findings No. 1 through 4 are incorporated by reference herein.

2. The appellant was not operating as a physician within the meaning of 42 CFR 410.20 and 410.25.

3. The appellant does not meet the requirements for coverage as a physician assistant in 42 CFR 410.74, the requirements for coverage as a nurse practitioner in 42 CFR 410.75, or the requirements for coverage as clinical nurse specialist in 42 CFR 410.76.

4. No provision of Part B of Title XVIII of the Social Security Act affords coverage to the appellant's non-physician services as a surgical assistant, or any other services that are not within the scope of his practice as a podiatrist under state law.

DECISION

It is the decision of the Medicare Appeals Council that the services at issue provided by the appellant to the beneficiaries are not covered under Part B of Title XVIII of the Social Security Act.

Date: June 20, 2001

Clausen Krzywicki

Administrative Appeals Judge

Terry Johnson

Administrative Appeals Judge

1. Administrative Law Judge Tom issued a decision concerning 11 beneficiaries on February 23, 2001, and Administrative Law Judge Steinman issued a decision concerning 17 beneficiaries on that same date. The March 29, 2001 memorandum from HCFA does not identify with complete accuracy which beneficiaries were included in each of the Administrative Law Judge decisions. This decision pertains to the 11 beneficiaries that were included in Administrative Law Judge Tom's decision. The appellant will receive separate notice concerning Administrative Law Judge Steinman's decision.