Petition for Writ of Certiorari — RCJ Medical Services, Inc. v. Director

Supreme Court brief2002

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Text

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01127 4 FEB 27299

No.

—OFFICE BF Ft 6+ sep

In The

Supreme Court of the United States

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RCJ MEDICAL SERVICES, INC.,

Petitioner,

VS.

THE DIRECTOR OF THE CALIFORNIA STATE

DEPARTMENT OF HEALTH SERVICES,

Respondent.

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On Petition For A Writ Of Certiorari To The

Court Of Appeal Of The State Of California

Second Appellate District

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PETITION FOR WRIT OF CERTIORARI

+

Patric Hooper

(California Bar No. 57343)

Hoorer, LuNpy & Bookman, INc.

1875 Century Park East, Suite 1600

Los Angeles, California

90067-2799

* Tel: (310) 551-8111

Fax: (310) 551-8181

E-mail: phooper@health-law.com

. Attorney of Record for Petitioner,

RC] Medical Services, Inc.,

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

\DOee

QUESTIONS PRESENTED

1. Whether the approval by the United States

Department of Health and Human Services of a Medicaid

State Plan Amendment, purporting to allow a single state

Medicaid agency to delegate to another state office

administrative authority to conduct a postpayment

review of the records of a Medicaid provider, including

medical records, violates the governing federal Medicaid

regulation, 42 C.F.R. § 431.10(e) [1999], which states that a

single state Medicaid agency “must not delegate, to other

than its own officials, authority to exercise administrative

discretion.”

2. Whether, in any event, such delegation of admin-

istrative authority may be commenced prior to the “effec-

tive date” of the State Plan Amendment, approving of the

delegation under the controlling federal Medicaid regula-

tions, 42 C.F.R. §§ 430.10 and 430.20 [1999].

LIST OF PARTIES AND RULE 29.6 DISCLOSURE

The parties to the proceedings below were the Peti-

tioner, RC] Medical Services, Inc., and the Director of the

California State Department of Health Services. RC] Med-

ical Services, Inc., is a California corporation which is not

a publicly held corporation and has no stockholder which

is a publicly owned corporation.

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111

TABLE OF CONTENTS

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LIST OF PARTIES AND RULE 29.6 DISCLOSURE ....

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PETITION FOR WRIT OF CERTIORARI............

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STATUTES AND REGULATIONS ...........00c000:

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A. STATEMENT OF THE FACTS................

B.

THE COURSE OF THE PROCEEDINGS

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SUMMARY OF WHY THE AUGUST 23, 2001, DECI-

ES os dnb a hc bskne4e b000skeab o6 66

REASONS FOR GRANTING THE WRIT ...........

A. THE DECISION OF THE COURT OF APPEAL

B.

CONFLICTS DIRECTLY WITH ITS PREVIOUS

DECISION IN DOCTOR’S ON AN IMPOR-

TANT QUESTION OF FEDERAL LAW.......

THE DECISION OF THE CALIFORNIA

COURT OF APPEAL ALSO INDIRECTLY

CONFLICTS WITH THE DECISIONS OF THE

UNITED STATES COURT OF APPEALS AND

THE CALIFORNIA COURT OF APPEAL

REGARDING THE DEFERENCE TO BE

GIVEN ADMINISTRATIVE AGENCIES’

INTERPRETATIONS AND REGARDING THE

ISSUE OF THE EFFECTIVE DATE OF MEDI-

CAID STATE PLAN AMENDMENTS.........

12

TABLE OF CONTENTS - Continued

Page

C. THE IMPORTANCE OF THE FEDERAL QUES-

TIONS TO BE RESOLVED ........ccccccceees 18

ee PET eT eee TEP TUT CET OTT reer er ee 20

TABLE OF AUTHORITIES

Page

Alhambra Hospital v. Thompson, 259 F.3d 1071 (9th

oe Pree MPrrrrr rr rr yy rrr te Tr 15

Bingham v. Obledo, 147 Cal.App.3d 401 (1983)........ 17

Childrens Hospital and Health Center v. Belshe, 188

F.3d 1090 (9th Cir. 1989)......... cece cece eee ees 15

Connecticut National Bank v. Germaine, 503 U.S. 249 ~

i) ere trey rrr rrr ereTr Tyr rere ery. 16

Doctor’s Medical Laboratory, Inc. v. Connell, 69 |

Cal.App.4th 891 (1999)......... see e eee eens passim

Exeter Memorial Hospital Association v. Belshe, 943

F. Supp. 1239 (E.D. Cal. 1996), aff'd, 145 F.3d

1106 (Sth Cir. 1998)... 0. ccccssncccescsescsesssens 17

Forrest v. Trustees of Cal. State University & Colleges,

160 Cal.App.3d 357 (1984) .......... eee eee eens 15

Oregon Association of Homes v. State Department of

Human Resources, 5 F.3d 1239 (9th Cir. 1993) ...... 17

Private Industry Council v. Employment Development

Department, 57 Cal.App.4th 1290 (1997).........-.. 16

Regents Hosp. v Shalala, 522 U.S. 448 (1998).........- 20

San Lazaro Ass‘n, et al. v. Connell, et al., Nos.

00-55065, df al., Jati. 24, 2002. ....02ccvcccsevens 12, 18

Sobky v. Smoley, 855 F. Supp. 1123 (E.D. Cal. 1994) .... 13

United States ex rel. Rahman v. Oncology Associates,

Inc., 198 F.2d 502 (4th Cir. 1999)...........--0-0e- 16

Washington State Health Facilities v. State of Wash-

ington, 698 F.2d 964 (9th Cir. 1982)..........+-+--- 17

Washington State Health Facilities v. DSHS, 879 F.2d

yee. Co oer errr errr rere rrr rrr errr 17

vi

TABLE OF AUTHORITIES - Continued

Page

Wilder v. Virginia Hosp. Ass'n, 496 U.S. 498 (1990) ..3, 12

Wileman Bros. & Elliott, Inc. v. Giannini, 909 F.2d

so B 2s 8. Pr rer re are ee 16

STATUTES

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ek Vea BU ee rere 4, 10, 14

California Code of Civil Procedure § 1094.5......... 12

California Welfare and Institutions Code Section

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REGULATIONS

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42 C.ER. § 430.12(c)(1)(ii) [1999] ..................... 5

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42 C.FR. § 431.10 [1999].......... os bases Sbaeeeee eae 3

42 C.FR. § 431.10(e) [1999] ......... 3, 9, 11, 12, 13, 14

Vii

TABLE OF AUTHORITIES —- Continued

Page

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42 C.ER. § 431.610(c) [1999] ............ eeee bins Pace

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MISCELLANEOUS re

65 Fed. Reg. 82,798-82,829 ............. cece eeeeeees 19

PETITION FOR WRIT OF CERTIORARI

Petitioner, RCJ Medical Services, Inc. (“RC]J”),

respectfully prays that a Writ of Certiorari issue to review

the opinion of the California Court of Appeal, Second

Appellate District (Division Five), filed August 23, 2001.

The California Supreme Court denied RCJ’s Petition to

Review the decision of the Court of Appeal on December

12, 2001, and the Remittitur issued December 28, 2001,

confirming that the Court of Appeal’s decision had “now

become final.”

OPINIONS BELOW

The August 23, 2001, published opinion of the Cali-

fornia Court of Appeal, Second Appellate District, is

reported at 91 Cal.App.4th 986; 111 Cal. Rptr. 2d 223 (Ct.

App.2001), and is reprinted in the Appendix at 1-38. The

August 30, 2001, order of the Court of Appeal denying

RCJ’s Petition for Rehearing is reprinted in the Appendix

at 39.

The decision of the California Supreme Court of

December 12, 2001, denying RCJ’s Petition for Review is

reprinted in the Appendix at 75. The December 28, 2001,

Remittitur is reprinted in the Appendix at 74.

The May 18, 2000, Judgment of the Superior Court of

the State of California for the County of Los Angeles in

tavor of RCJ, the Judgment which was reversed by the

California Court of Appeal’s August 23, 2001, decision, is

reprinted in the Appendix at 40-41.

The August 6, 1999, Final Decision of the Director of

the California Department of Health Services, which gave

rise to the decisions of the California Superior Court and

the California Court of Appeal, is reprinted in the Appen-

dix at 42-73.

JURISDICTION

As indicated above, the decision of the California

Court of Appeal, Second Appellate District, for which

this Petition for Writ of Certiorari is being sought, was

filed by the California Court of Appeal on August 23,

2001. The decision of the California Supreme Court deny-

ing RC]J’s Petition to Review the decision of the California

Court of Appeal was filed December 12, 2001. On Decem-

ber 28, 2001, the Court of Appeal issued a Remittitur

confirming that its August 23, 2001, decision had become

final.

The decision of the California Court of Appeal

involves questions of federal law, including whether the

implementation of a state Medicaid Plan Amendment

violates the provisions of the governing federal Medicaid

laws and regulations, which under the United States Con-

stitution, are supreme to state laws, regulations, and poli-

cies. Thus, jurisdiction exists under 28 U.S.C. § 1257.

Moreover, because the decision of the California Court of

Appeal (1) directly conflicts with another decision of the

same court on the very same issue; (2) indirectly conflicts

with the decisions of the United States Court of Appeals

for the Ninth Circuit on very similar issues; and (3)

resolves questions which have not been, but should be,

FE AS Wan ated Ma Nas TAA Ha UN ne a8

settled by this Court, jurisdiction also exists pursuant to

Rule 10 of the Rules of this Court.

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STATUTES AND REGULATIONS

This case involves the administration of the Medicaid

program, Title XVIII of the Social Security Act, 42 USC.

§§ 1396 et seq. and 42 C.FR. §§ 430.1 et seq. [1999]. The

Medicaid program is jointly administered by the federal

and state governments. Each state’s Medicaid program

must be administered pursuant to its state Medicaid plan.

See 42 U.S.C. § 1396 and 42 C.FR. § 430.10 [1999]. A

Medicaid State Plan must contain various provisions

required by the Medicaid laws and regulations. See 42

U.S.C. § 1396a(a)(1)-(65) and 42 C.F.R. §§ 431.1 et seq.

[1999]. These federal requirements are supreme to state

law requirements regarding the administration of the

Medicaid Program. See Wilder v. Virginia Hosp. Ass'n, 496

U.S. 498 (1990).

Each Medicaid State Plan must designate a single

state agency to administer or to supervise the administra-

tion of its State Plan, except that the determination of

eligibility for medical assistance under a State Plan may

be made by a local agency subject to the supervision of

the single state agency. See 42 U.S.C. § 1396a(a)(5), and 42

C.ER. § 431.10 [1999]. Appendix at 76, 79.

Under 42 C.F.R. § 431.10(e) (Appendix at 82), the

single state agency “must not delegate, to other than its

own officials, authority” to “exercise administrative dis-

cretion” in the administration of the plan.

The Medicaid statutes and regulations specify those

limited exceptions where the single state Medicaid

agency may delegate authority to other state or local

agencies, such as for purposes of determining Medicaid

eligibility (42 U.S.C. § 1396a(a)(5)), and for purposes of

establishing and maintaining health and other standards

for Medicaid providers (42 U.S.C. § 1396a(a)(9) and 42

C.F.R. § 431.610 [1999]). Appendix at 76, 84. See, also, 42

C.F.R. §§ 431.615, 431.621, and 431.630 [1999], all of which

allow the single state Medicaid agency to enter into rela-

tionships with other state agencies. However, these inter-

agency relationships must be described in the State

Medicaid Plan. For example, see 42 C.F.R. § 431.610(b) and

(c) [1999], Appendix at 84-85.

In addition to requiring each State Medicaid Plan to

describe the single state Medicaid agency’s relations with

other state and local agencies, the State Medicaid Plan

must also describe the organization and functions of the

single state Medicaid agency, itself, and its personnel and

supporting staff. See 42 U.S.C. § 1396a(a)(22) and 42 C.F.R.

§ 431.11(c) [1999]. Appendix at 77, 83.

The single state Medicaid Plan must provide for

Medicaid claims payment procedures which assure that

claims are paid on time. However, the State Plan must

also provide for procedures for prepayment and postpay-

ment claims review to ensure the proper and efficient

payment of claims and management of the Medicaid Pro-

gram. 42 U.S.C. § 1396a(a)(37) and 42 C.F.R. § 447.45

[1999], Appendix at 78, 85-89. Under 42 C.F.R. § 447.45(f),

the single state Medicaid agency must conduct the pre-

payment and postpayment reviews. There is no Medicaid

statute or regulation permitting such postpayment and

aad si eae

Sak Sal SN es A

prepayment reviews to be delegated by the single state

Medicaid agency to another state agency.

To facilitate the postpayment and prepayment

reviews required to be conducted by the single state

Medicaid agency, the state Medicaid Plan requires agree-

ments pursuant to which health care providers must

maintain certain records and must furnish those records

and other information to the single state Medicaid agency

or to the Secretary of the United States Department of

Health and Human Services (“U.S. DHHS”). See 42 U.S.C.

§ 1396a(a)(27). Appendix at 77.

State Plan Amendments must be submitted by the

single state agency and approved by U.S. DHHS when

there are material changes in the organization or policy of

the state Medicaid program. See 42 C.F.R. § 430.12(c)(1)(ii)

[1999}. Appendix at 79. Plan amendments, which do not

affect Medicaid eligibility and payment methods and

standards, become effective on the date requested by the

single state Medicaid agency if U.S. DHHS approves the

Plan Amendment. See 42 C.F.R. § 430.20(b)(3) [1999].

Appendix at 80.

¢

STATEMENT OF THE CASE

A. STATEMENT OF THE FACTS

The California Department of Health Services (“State

DHS”) is the single state Medicaid agency for California's

Medicaid program, known as the Medi-Cal program. In

the California State Medicaid Plan submitted to U.S.

DHHS in 1993, State DHS was identified as the single

state Medicaid agency for all purposes, including con-

ducting postpayment audits and reviews of providers. See

Court of Appeal decision, Appendix at 14.

On July 1, 1997, State DHS and the California Con-

troller’s Office, which is not part of State DHS, entered

into an Interagency Agreement (without amending the

State Plan) purporting to authorize the State Controller to

perform audit services relating to the Medi-Cal program.

Court of Appeal Decision, Appendix at 14.

Acting pursuant to the July 1, 1997, Interagency

Agreement, the State Controller conducted a postpay-

ment review of RCJ’s Medi-Cal claims for the period from

January 9, 1997, to October 9, 1997, and a subsequent

postpayment review for the period from October 10, 1997,

to March 26, 1998. Court of Appeal decision, Appendix at

15-16. The State Controller issued her postpayment

review findings in reports dated March 10, 1998, and May

4, 1998. RCJ then requested an administrative appeal to

challenge the determinations of the State Controller.}

On June 15 and 16, 1998, an administrative hearing

was held before an administrative law judge employed

by State DHS. Among other challenges to the Controller’s

1 The State controller’s postpayment review of RC] was not

simply a financial audit or review. Rather, the State controller

analyzed confidential medical records, interviewed physicians,

patients and their relatives, and made judgmental

determinations regarding the medical necessity of certain

laboratory tests performed by RCJ. See Final Decision of State

DHS, Appendix at 63-67. Thus, in conducting the post-

payment review, the State Controller exercised considerable

administrative discretion.

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findings, RCJ asserted at the hearing that the State Con-

troller lacked authority under the controlling federal

Medicaid laws and regulations to perform Medi-Cal post-

payment reviews. RC] argued that under the governing

federal Medicaid laws and regulations and the then-exis-

ting provisions of the State Medicaid Plan, only State

DHS, the single state Medicaid agency, could conduct

postpayment reviews of providers’ records and claims.

On August 5, 1999, the Chief Deputy Director for State

DHS issued a final agency decision granting RCJ’s appeal

in part and denying it in part. However, the State DHS

Deputy Director concluded that the State Controller had

the authority to conduct the postpayment review of the

Medi-Cal claims at issue under federal Medicaid laws

and regulations. See Final Decision of State DHS, Appen-

dix at 48-52.

State DHS issued its August 5, 1999, Final Decision

upholding State DHS’ authority to delegate audit and

review authority to the State Controller notwithstanding

the fact that the California Court of Appeal had issued a

decision in February 1999, which became final on May 26,

1999 (after the California Supreme Court denied the State

Controller’s Petition for Review), expressly holding that

the controlling federal Medicaid regulation, 42 C.F.R.

§ 431.10(e)(1) [1999] (Appendix at 82), prohibited State

DHS from “delegating to the State Controller the audit of

claims by medical services providers and the withholding

of alleged overpayments.” See Doctor’s Medical Laboratory,

Inc. v. Connell, 69 Cal.App.4th 891, 893 (1999). Appendix

at 99. In Doctor’s, the very same (but different division of

the) California Court of Appeal that issued the decision

here concluded that “the Controller could not lawfully

exercise power to audit provider payments and withhold

alleged excesses.” 69 Cal.App.4th at 897. Appendix at

106.

On December 17, 1999, after losing the issue before

the Court of Appeal in Doctor’s, State DHS submitted a

State Plan Amendment to U.S. DHHS to provide that the

State Controller’s Office performs audits of Medi-Cal

expenditures on behalf of State DHS. See December 17,

1999, transmittal letter and State Plan Amendment, copy

attached, Appendix at 91-94. State DHS specifically

requested a July 1, 1998 effective date for the State Plan

Amendment. Id.

On that same day, December 17, 1999, U.S. DHHS

informed State DHS that it had, in fact, approved the

State Medicaid Plan to reflect that the State Controller’s

Office performs audits of Medi-Cal expenditures on

behalf of State DHS. U.S. DHHS made its approval effec-

tive July 1, 1998, as requested by State DHS. See the

December 17, 1999, transmittal letter and federal

approval, copy appended at 95-98.

In the meantime, RCJ had initiated a challenge to the

State DHS’ Final Decision by filing a Petition for Writ of

Mandate in the California Superior Court for the County

of Los Angeles on October 28, 1999, pursuant to Califor-

nia Welfare and Institutions Code Section 14171. Court of

Appeal Decision, Appendix at 19.

B. THE COURSE OF THE PROCEEDINGS BELOW

On May 19, 2000, the California Superior Court for

the County of Los Angeles issued a Judgment granting

RC]’s request for a peremptory writ of mandate setting

aside the Final Decision of State DHS “insofar as it relied

ee ee ee eee nn

upon the audit findings of the State Controller.” Appen-

dix at 40-41.

The Director of State DHS appealed the Superior

Court’s Judgment to the California Court of Appeal. On

August 23, 2001, the California Court of Appeal, Second

Appellate District, issued a decision reversing the Judg-

ment of the Superior Court. The California Court of

Appeal contended it did not have to follow the previous

decision of the Court in Doctor’s because Doctor’s had

been issued before State DHS had submitted and the

federal government had approved the December 17, 1999,

State Plan Amendment describing for the first time in the

Plan the Controller’s role in auditing Medi-Cal providers.

Appendix at 21-23.

In its August 23, 2001 decision, the Court of Appeal

concluded that U.S. DHHS’ approval of the December 17,

1999, State Plan Amendment constituted that agency’s

interpretation of the governing federal Medicaid regula-

tions and statutes. And, according to the California Court

of Appeal, even though the federal Medicaid regulation

at issue, 42 C.F.R. § 431.10(e) (which had not changed

since Doctor’s was decided), expressly prohibits the dele-

gation of administrative discretion by the single state

Medicaid agency to another state agency, the federal gov-

ernment’s approval of the State Plan Amendment was

reasonable and entitled to controlling deference.

Although the California Court of Appeal relied

heavily on the December 17, 1999, State Plan Amendment

to distinguish its holding in RCJ’s case from its previous

holding in Doctor’s and to permit State DHS to delegate

authority to the State Controller, the Court disregarded

the legal impact of the Plan Amendment's July 1, 1998,

10

effective date. Thus, even though the State Controller

audited RCJ while the State Plan indicated that only State

DHS did so and well before July 1, 1998, the effective date

of the Plan Amendment, the Court seemingly allowed the

Plan Amendment to be applied to RCJ (without expressly

deciding the issue of the legal impact of the plan amend-

ment’s effective date). Appendix at 23.

Following the denial of RC]’s Petition for Rehearing,

RCJ petitioned the California Supreme Court to review

the August 23, 2001 Opinion of the Court of Appeal. RC]

asked the California Supreme Court to determine (1)

whether the controlling federal Medicaid regulations per-

mitted State DHS to delegate to the State Controller the

authority to perform prepayment and postpayment

reviews of Medicaid providers, and (2) whether the fed-

eral government’s December 17, 1999, approval of State

DHS’ Medicaid Plan Amendment was applicable to the

postpayment review at issue in this case since the audit

had been completed prior to July 1, 1998, the effective

date of the federal approval. On December 12, 2001, the

California Supreme Court denied RCJ’s petition. Appen-

dix at 75.

*

SUMMARY OF WHY THE

AUGUST 23, 2001 DECISION IS WRONG

Single state Medicaid agencies, and only single state

Medicaid agencies, are authorized to perform postpay-

ment reviews under the controlling federal statute, 42

U.S.C. § 1396a(a)(37) (Appendix at 78), and federal regu-

lation, 42 C.F.R. § 447.45(f) (Appendix at 89-90). Unlike a

few other circumstances, neither the Medicaid statutes

0 OA CRAP REL > ile

11

nor regulations expressly permit a single state Medicaid

agency to delegate such authority to another agency.

Thus, the general regulatory prohibition of 42 C.FR.

§ 431.10(e) (Appendix at 82) prohibiting such delegation

of administrative discretion is clearly applicable, as the

California Court of Appeal decided in Doctor's.

Because the language of the controlling regulation is

plain - i.e., the single state Medicaid agency must not

delegate administrative discretion to another state agency

~ it must be applied by the Courts. The State Court of

Appeal erred here by allowing the December 17, 1999,

Plan Amendment to “trump” the plain language of the

regulation. The Court also should not have considered

“legislative history,” which purports to contradict the

plain language of the regulation.

In any event, the State Plan must describe those

agencies and personnel performing administrative duties.

42 U.S.C. § 431.11(c), Appendix at 83. At the time the

State Controller conducted the postpayment review of

RCJ, the California State Medicaid Plan specified that

postpayment reviews were done solely by State DHS. See

Doctor’s, Appendix at 14. Indeed, even after the plan was

amended retroactively in December 1999, its July 1, 1998

effective date postdated the State Controller’s audit of RCJ.

Thus, the Controller’s postpayment review of RC] was

inconsistent with the then-existing provisions of the State

Medicaid Plan and therefore void.

¢

12

REASONS FOR GRANTING THE WRIT

A. THE DECISION OF THE COURT OF APPEAL

CONFLICTS DIRECTLY WITH ITS PREVIOUS

DECISION IN DOCTOR’S ON AN IMPORTANT

QUESTION OF FEDERAL LAW.

As explained above, the very same Court of Appeal

(but a different Division and therefore a different panel of

judges) concluded in Doctor’s (Appendix at 99-107) that

the governing federal Medicaid law prohibits State DHS

from delegating postpayment review authority to the

State Controller. In doing so, the California Court of

Appeal interpreted the very same regulatory provisions

interpreted by the Court of Appeal in this case, 42 C.F.R.

§ 431.10(e).?

The wording of this federal Medicaid regulation

(and the other relevant regulations) did not change

between the date the Court issued its decision in Doctor's

and the date it issued its decision in this case. The only

relevant event that occurred between the two decisions,

according to the Court of Appeal, was the federal govern-

ment’s approval of the December 17, 1999, State Plan

2 That the federal Medicaid statutes and regulations are

supreme to state laws, rules and policies is well established. See,

e.g., Wilder v. Virginia Hosp. Ass'n, 496 U.S. 498 (1990). Moreover,

unlike the often problematical situation where providers seek to

enforce the federal medicaid laws and regulations in federal

court, such as in the recently issued decision of the Ninth Circuit

in San Lazaro Ass‘n, et al. v. Connell, et al., Nos. 00-55065, et al.,

Jan. 24, 2002 W.L. 89073, __ F.3d ___ (9th Cir. 2002), California

statutes permit a provider to do so in state court under

California Code of Civil Procedure § 1094.5. See Court of Appeal

decision, Appendix at 20-21.

ee BAe Be

13

Amendment, which the Court construed as a dispositive

intervening interpretation by the federal agency responsi-

ble for administering the Medicaid program.

As mentioned above, this intervening event, how-

ever, may not alter the plain meaning of the governing

federal Medicaid regulation. In actuality, it is quite clear

that the Panel of Judges who decided this case simply

disagreed with the reasoning of the Panel of Judges who

decided Doctor’s, thus presenting a classic conflict of

court decisions. Because the California Supreme Court

refused to review either case, there remains a clear and

direct conflict between two Panels of the same state Court

of Appeal over the appropriate interpretation of the con-

trolling federa! Medicaid laws and regulations. Pursuant

to Rule 10(b), this Court may resolve that conflict.

Indeed, because it is difficult for providers to enforce

federal Medicaid regulations in federal court (see, fn. 2,

supra, and Sobky v. Smoley, 855 F. Supp. 1123, 1144 (E.D.

Cal. 1994) [even though 42 C.F.R. § 431.10(e) imposes a

mandatory duty on states, providers may not enforce that

right in federal court)) it is critical that state courts cor-

rectly interpret federal Medicaid laws and regulations.

14

B. THE DECISION OF THE CALIFORNIA COURT OF

APPEAL ALSO INDIRECTLY CONFLICTS WITH

THE DECISIONS OF THE UNITED STATES

COURT OF APPEALS AND THE CALIFORNIA

COURT OF APPEAL REGARDING THE DEFER-

ENCE TO BE GIVEN ADMINISTRATIVE AGEN-

CIES’ INTERPRETATIONS AND REGARDING

THE ISSUE OF THE EFFECTIVE DATE OF MEDI-

CAID STATE PLAN AMENDMENTS.

As indicated above, the California Court of Appeal in

this case treated the federal government’s approval of

State DHS’ December 17, 1999, Plan Amendment as an

“official” interpretation of the governing federal Medi-

caid laws and regulations. The Court then essentially

proceeded to give complete deference to that interpreta-

tion. In doing so, the Court ignored the basic principle of

administrative law requiring no such deference be given

when the plain language of a statute or regulation is

clear.

The controlling federal Medicaid regulation, 42 C.F.R.

§ 431.10(e), expressly provided during all periods at issue

that the single state Medicaid agency “must not delegate

to other than its own officials, authority to . . . exercise

administrative discretion in the administration or super-

vision of the plan.” While the Medicaid statutes and

regulations allow for some specific exceptions to the pro-

hibition against delegation in particular situations, they

do not specify an exception permitting the delegation of

prepayment or postpayment authority from the single

state Medicaid agency to another agency. Rather, as indi-

cated above, the governing Medicaid statute, 42 U.S.C.

§ 1396a(a)(37), and regulation, 42 C.F.R. § 445.45(f),

15

expressly require the single state Medicaid agency to

perform postpayment and prepayment reviews. There-

fore, the plain language of Section 431.10(e)(1) prohibit-

ing delegation of administrative discretion is fully

applicable here. Because the plain language is mandatory

and unambiguous, it is not subject to agency or judicial

interpretation. It must be applied and followed regardless

of whether the agency (or a court) prefers different lan-

guage.

Recently, in Alhambra Hospital v. Thompson, 259 F.3d

1071 (9th Cir. 2001), the Court of Appeals applied the

plain meaning of a Medicare regulation notwithstanding

a contrary interpretation of the regulation by U.S. DHHS.

In doing so, the Court concluded that not every USS.

DHHS reguiation is of “delphic obscurity, explicable only

through the Secretary’s oracular powers.” 259 F.3d at

1076. That is certainly true here, where the plain language

of the governing regulations prohibits the delegation of

discretionary authority by the single state Medicaid

agency to another agency.

The Ninth Circuit has also upheld the plain language _

of the Medicaid statutes even when U.S. DHHS has

approved a plan amendment based on a contrary inter-

pretation of the statute. See, for example, Childrens Hospital

and Health Center v. Belshe, 188 F.3d 1090, 1098 (9th Cir.

1989). Because the state courts are required to interpret

regulations using the same rules applicable to statutory

interpretation (see Forrest v. Trustees of Cal. State University

& Colleges, 160 Cal.App.3d 357, 362 (1984), the state court

should also have applied the plain language of the Medi-

caid regulations even if U.S. DHHS approved of a plan

amendment that was contrary to such plain language.

16

The Court of Appeal bolstered its holding in this case

by relying on so-called “legislative history” from agency

handbooks, which the Court found to be consistent with

U.S. DHHS’ interpretation of the Medicaid regulations.

However, reliance on legislative history is misplaced

when the language of a statute or regulation is clear.

Where the plain language is clear, it must be followed by

a reviewing court and may not be disturbed by “supple-

mentary information” published by the agency in the

Federal Register. See Wileman Bros. & Elliott, Inc. v. Gian-

nini, 909 F.2d 332, 336 (9th Cir. 1990).

These holdings of the Ninth Circuit are consistent

with the holdings of this Court, which has confirmed that

there is no need to consider legislative history when the

language of a statute or regulation is plain. See Connecti-

cut National Bank v. Germaine, 503 U.S. 249, 254 (1992).

~ afortunately, the State Court of Appeal decision ignores

this principle, which is fundamental to the rule of law.

The California Court of Appeal, itself, in other cases

has recognized that it must apply the plain language of a

regulation even if an agency has a “better idea,” or the

administrative agency believes the language of the regu-

lation is not consistent with good public policy. See Pri-

vate Industry Council v. Employment Development

Department, 57 Cal.App.4th 1290, 1294 (1997) [federal law

must be followed even if an agency “has a better idea.”]

See, also, United States ex rel. Rahman v. Oncology Associ-

ates, Inc., 198 F.2d 502, 514 (4th Cir. 1999), holding that the

U.S. DHHS is not excused from complying with its own

federal regulations just because it believes the language

of the regulations is not in the public interest.

17

Not only does the California Court of Appeal’s deci-

sion in this case conflict with the decisions of the Ninth

Circuit and the California Court of Appeal with respect to

the interpretation of the plain language of a federal regu-

lation, the decision also conflicts with those court deci-

sions prohibiting Medicaid actions which are not

authorized by the Medicaid State Plan. See, for example,

Exeter Memorial Hospital Association v. Belshe, 943 F. Supp.

1239, 1240 (E.D. Cal. 1996), aff'd, 145 F.3d 1106, 1109 (9th

Cir. 1998) [the Court prohibits State DHS’ action from

being implemented prior to the effective date of a state

plan amendment] and Oregon Association of Homes v. State

Department of Human Resources, 5 F.3d 1239 (9th Cir. 1993)

[state Medicaid policy invalid because it was not submit-

ted as a plan amendment to the federal government]. See,

also, Washington State Health Facilities v. State of Washing--

ton, 698 F.2d 964 (9th Cir. 1982) and Washington State

Health Facilities v. DSHS, 879 F.2d 677 (9th Cir. 1989).

In fact, the decision of the state Court of Appeal in

this case with respect to the effective date of the Plan

Amendment is also inconsistent with the California Court

of Appeal’s previous decisions. For example, in Bingham

v. Obledo, 147 Cal.App.3d 401 (1983), the California Court

of Appeal invalidated State DHS’ reliance on state regula-

tions because they were not part of the state Medicaid

plan. Here, State DHS has relied on a postpayment

review conducted by the State Controller before July 1,

1998, the effective date of the Plan Amendment permit-

ting such reviews by the State Controller.

18

C. THE IMPORTANCE OF THE FEDERAL QUES-

TIONS TO BE RESOLVED.

State DHS, the California Controller’s Office, and

U.S. DHHS have represented to various courts on various

occasions in this case and in related cases, including the

Doctor’s case, the importance of properly resolving the

question of whether the federal Medicaid laws and regu-

lations, as currently written, permit a single state Medi-

caid agency to delegate postpayment review authority to

another state agency. For example, when the State Con-

troller was unsuccessful on this issue before the Califor-

nia Court of Appeal in Doctor’s, she requested the

California Supreme Court to review the Court of

Appeal’s decision because it was a “matter of significant

public interest.” See page 4 of the State Controller’s Peti-

tion for Review in Doctor’s, filed on or about March 15,

1999. State DHS fully supported this request.

Indeed, the California State Controller, has even

appeared before the United States Congressional House

Commerce Committee’s subcommittee on oversight and

investigations urging Congress “to revise” federal Medi-

caid laws and regulations “regarding the role of the sin-

gle state agency” to “allow” the California State

Controller and other fiscal agents to perform Medicaid

audits. See “Fraud in the California Medi-Cal Program,”

dated July 18, 2000, available at www.sc.ca.gov.

In this very case, State DHS presented the California

Court of Appeal with a copy of the amicus brief of U.S.

DHHS filed in the United States Court of Appeals for the

Ninth Circuit in the case of San Lazaro Ass'n, et al. v.

Connell, et al., Case Nos. 00-55065, etc., et al. In requesting

19

permission to file its amicus curiae brief in those consoli-

dated cases, U.S. DHHS characterized the question pre-

sented as one of first impression which is significant to

the nationwide administration of the Medicaid program.

See State DHS’ Supplemental Motion for Judicial Notice

and Memorandum of Points and Authorities filed with

the California Court of Appeal on or about May 3, 2001.

Moreover, as pointed out by the California Court of

Appeal in Doctor's (Appendix at 106-107), it is critical that

the appropriate persons conduct postpayment reviews. In

this case, financial auditors from the State Controller’s

Office discussed confidential medical procedures with

patients in front of their relatives and friends to try to

determine whether laboratory testing had been ordered

and performed. See Exhibit 89 of-the administrative

record. When agencies other than the single state Medi-

caid agency conduct postpayment and prepayment

reviews, the confidentiality of sensitive medical informa-

tion will necessarily be jeopardized. This result is incon-

sistent with the strong public policy of protecting such

information. See recent discussion of the Health Insurance

Portability and Accountability Act of 1996, codified at 42

U.S.C. §§ 1320d-1320d-8 in rules issued by U.S. DHHS on

December 8, 2000, 65 Fed. Reg. 82,798-82,829.

In addition to being important to the ongoing admin-

istration of the Medicaid program, the correct resolution

of the issues presented is also critical to the application of

federal administrative law principles by state courts. The

California Court of Appeal here erroneously deferred to

the agency’s interpretation of the plain language of the

20

governing regulation rather than insisting that the plain

language controls.

Finally, the rule of law is at stake. While U.S. DHHS

and State DHS (as well as the Court of Appeal) might

believe the prohibition against the delegation of postpay-

ment review authority from the single state Medicaid

agency to another agency is ill conceived or unwise, the

Court must apply laws and regulations as written. See

Justice Scalia’s dissenting opinion in Regents Hosp. v. Sha-

lala, 522 U.S. 448, 469 (1998) [“the immediate benefit

achieved by such a practice (i.e., rewriting the laws) in a

particular case is far outweighed by the disruption of

legal expectations in all cases — disruption of the rule of

law — that government by ex post facto legislative psycho-

analysis produces.” ]%

CONCLUSION

The California Court of Appeal’s decision interpret-

ing the governing federal Medicaid laws and regulations

is inconsistent with its own previous decision in Doctor’s

and is also inconsistent with decisions of the United

States Court of Appeals for the Ninth Circuit. In order to

assure uniformity in the administration of the Medicaid

program and in the decisions of the courts, this Court is

respectfully requested to grant the petition for a writ of

3 The administration of the Medicaid program is also

threatened by the Court of Appeal’s decision ignoring the July

1, 1998, effective date of the Plan Amendment. Indeed, the

Court of Appeal’s decision renders meaningless the regulation

regarding “effective dates.”

21

certiorari to decide the important questions of law raised

by this petition.

Dated: February 27, 2002

Respectfully submitted,

Patric Hooper

Hooper, LuNpy & BOOoKMAN, INc.

Attorneys for Petitioner

App. 1

APPENDIX

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE

STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

RCJ MEDICAL

SERVICES, INC.,

B143160

Super. Ct. No. BS060056)

Filed Aug. 23, 2001)

Plaintiff and Respondent,

v.

THE DIRECTOR OF THE

STATE DEPARTMENT

OF HEALTH SERVICES,

Defendant and Appellant.

eee eee ee”

APPEAL from a judgment of the Superior Court of

Los Angeles County, David P. Yaffe, Judge. Reversed.

Bill Lockyer, Attorney General, Charlton G. Holland,

III, Senior Assistant Attorney General, John H. Sanders,

Lead Supervising Deputy Attorney General; and Patricia

L. Nagler, Deputy Attorney General, for Defendant and

Appellant.

Hooper, Lundy & Bookman, Inc., and Patric Hooper

for Plaintiff and Respondent.

App. 2

I. INTRODUCTION

This case involves a postpayment audit of a Medi-Cal

provider’s claims. Such audits are required under both

federal and state law. (42 C.F.R. §§ 447.45(f)(2), 456.3;

Welf. & Inst. Code, § 14170, subd. (a)(1).) No Medi-Cal

payments were withheld from the provider.

The State Department of Health Services (DHS)

administers Medi-Cal, the federal Medicaid program in

California. The DHS contracted with the State Control-

lers’ office (the Controller) to audit Medi-Cal payments to

providers. The Health Care Financing Administration

(HCFA), part of the United States Department of Health

and Human Services, is the federal agency responsible for

administering the Medicaid program. On December 17,

1999, the HCFA, a federal agency, specifically approved

in writing the DHS’s delegation of audit authority to the

Controller. j

This appeal is from a judgment granting a peremp-

tory writ of administrative mandate directed at defen-

dant, the Director of the DHS. The peremptory writ of

mandate requires the DHS to set aside its final decision in

the administrative appeal of RCJ Medical Services,~Inc.

(RCJ), “insofar as it relies upon the audit findings of the

State Controller. ...” RCJ contends federal Medicaid law,

and specifically the single state agency requirement, pre-

cludes the DHS’s delegation of audit authority to the

Controller.1 The question in this case is whether the

1 The question whether the controller is prohibited under

federal law from performing Medi-Cal audits or withholding

payments to providers is before the United States Court of

App. 3

HCFA’s December 17, 1999, written approval of the

DHS’s delegation of audit responsibility to the Controller

is based on a reasonable construction of the federal statu-

tory single state agency provision and the implementing

regulation. We defer to the HCFA’s construction of the

federal law that it administers as reflected in its action of

December 17, 1999. Accordingly, we reverse.

II. FEDERAL MEDICAID LAW

In 1965, Congress enacted Title XIX of the Social

Security Act (the Medicaid Act) to provide medical assis-

tance to needy persons. (42 U.S.C. § 1396 et seq.) The

purpose of the act was to provide a nationwide program

of medical assistance for low-income families and indi-

viduals. (Schweiker v. Hogan (1982) 457 U.S. 569, 571; West

Virginia University Hospitals, Inc. v. Casey (3rd Cir. 1989)

885 F.2d 11, 15, affd. (1991) 499 U.S. 83.)

A. The Medi-Cal Program and the Single State Agency

Requirement

The Second Circuit Court of Appeals described the

joint federal-state operation of the Medicaid program and

the single state agency requirement in Bethphage Lutheran

Service, Inc. v. Weicker (2nd Cir. 1992) 965 F.2d 1239, 1240

as follows: “Medicaid, 42 U.S.C. § 1396 et seq., is a

cooperative federal-state program through which the fed-

eral government provides financial assistance to the

Appeals for the Ninth Circuit in several cases including

Simonyan v. Connell (C.D.Cal. Jan. 20, 2000, No. 99-2420 RJK)

2000 WL 562861.)

App. 4

states so that the states may furnish medical, rehabilita-

tion, and other services to certain low-income persons.

Participation in Medicaid is voluntary, but participating

states must comply with certain requirements imposed by

the Medicaid Act and regulations promulgated by the

Secretary of Health and Human Services (‘the Secretary’).

For a state to qualify for federal assistance, the Secretary,

customarily acting through the Health Care Finance

Administration (‘HCFA’), must approve a State Plan for

medical assistance, 42 U.S.C. § 1396a(a), that contains a

comprehensive statement describing the nature and the

scope of the state’s program. 42 C.F.R. § 430.10 (1989).

The plan must designate a single state agency to super-

vise or administer the State Plan. 42 U.S.C. § 1396a(a)(5).”

(Accord, West Virginia University Hospitals., Inc. v. Casey,

supra, 885 F.2d at p. 15.)

1. The Federal Single State Agency Statute

The single state agency requirement is set forth in a

federal statute. Pursuant to title 42 of the United States

Code, section 1396a(a)(5)?, a state participating in the

federal Medicaid program must establish a state plan that

meets stated requirements. Among other things, the state

plan must “provide for the establishment or designation

of a single State agency to administer or to supervise the

administration of the plan. . . . “3 (Italics added.)

2 All further references to sections 1396, 1396a, or 1396b,

are to title 42 of the United States Code.

3 Section 1396a (a)(5) states in full: “A State plan for

medical assistance must — [{] . . . [{] [(a)](5) either provide for

the establishment or designation of a single State agency to

App. 5

The single state agency requirement originally

appeared in the Social Security Act of 1935 with reference

to the Title I Old-Age Assistance Program. (Stats. 1935,

ch. 531, § 2.) The single state agency language was incor-

porated into Title XIX when the Medicaid program was

enacted in 1965. (Pub.L. No. 89-97, 1965 U.S. Code Cong.

& Admin. News, at pp. 305, 371; Sobky v. Smoley (E.D. Col.

1994) 855 F.Supp. 1123, 1145.) The purposes of the single

state agency requirement have been described in various

ways. In Rolland v. Cellucci (D.Mass. 1999) 52 FSupp.2d

231, 243, the district court held: “The single state agency

mandate arose out of Congress’ desire to minimize the

improper denial of benefits and to ensure a certain level

of services and quality of care. Morgan v. Cohen, 665

F.Supp. 1164, 1177 (E.D.Pa. 1987). The mandate accom-

plishes these goals by limiting the authority to make

administrative decisions to a single state agency. 42 C.F.R.

§ 431.10(e)(1)(ii). .... [T]he ‘single state agency’ require-

ment derives from a desire to focus accountability for

plan operation, Hillburn by Hillburn v. Maher, 795 F.2d 252,

administer or to supervise the administration of the plan; or

provide for the establishment or designation of a single State

agency to administer or to supervise the administration of the

plan, except that the determination of eligibility for medical

assistance under the plan shall be made by the State or local

agency administering the State plan approved under

subchapter I or XVI of this chapter (insofar as it relates to the

aged) if the State is eligible to participate in the State plan

program established under subchapter XVI of this chapter, or by

the agency or agencies administering the supplemental security

income program established under subchapter XVI or the State

plan approved under part A of subchapter IV of this chapter if

the State is not eligible to participate in the State plan program

established under subchapter XVI of this chapter[.]”

App. 6

261 (2d Cir. 1986); 42 U.S.C. § 1396a(a)(5); 42 C.F.R.

§§ 431.1 and 431.10... .” In Sobky v. Smoley, supra, 855

F.Supp. at page 1145, Judge David F. Levi wrote, “The

legislative history of the 1965 Medicaid Act’s single state

agency requirement —- 42 U.S.C. § 1396a(a)(5) — maintains

this concentration on administrative efficiency.” (Accord

Hillburn v. Maher, supra, 795 F.2d at pp. 260-261.) Judge

Levi concluded after House and Senate amendments

were factored into the competing evidence of legislative

intent that Congress’s adoption of the single state agency

was because, “[A]dministrative efficiency appears to

have been the overriding purpose... . ” (Sobky v. Smoley,

supra, 855 F.Supp. at p. 1146.) In Fulkerson v. Commissioner,

Maine Dept. of Human Services (D. Maine 1992) 802 F.Supp.

529, 538, the district court held: “It appears that the

reason for this requirement was to assure ‘that the States

will not administer the provisions for services in a way

which adversely affects the availability or the quality of

the care to be provided’ and ‘to avoid a lack of accoun-

tability for the appropriate operation of the program.’

Hillburn v. Maher[, supra,] 795 F.2d [at p.] 261[ ] (quoting

in part S.Rep. No. 404, 89th Cong., 1st Sess. (1965),

reprinted in 1965 U.S. Code Cong. & Admin.News 1943,

2016-17), cert. denied, 479 U.S. 1046, 107 S.Ct. 910, 93

L.Ed.2d 859 (1987).”

2. The Federal Single State Agency Regulation

The HCFA regulation implementing the single state

agency requirement is found at title 42, Code of Federal

Regulations, part 431.10(e) (44 Fed.Reg. 17930 (March 23,

1979)) which states: “(e) Authority of the single State

agency. In order for an agency to qualify as the Medicaid

App. 7

agency - [{] (1) The agency must not delegate, to other

than its own officials, authority to - [{] () Exercise

administrative discretion in the administration or super-

vision of the plan, or [{] (ii) Issue policies, rules, and

regulations on program matters. ({] (2) The authority of

the agency must not be impaired if any of its rules,

regulations, or decisions are subject to review, clearance,

or similar action by other offices or agencies of the State.

({] (3) If other State or local agencies or offices perform

services for the Medicaid agency, they must not have the

authority to change or disapprove any administrative decision

of that agency, or otherwise substitute their judgment for that

of the Medicaid agency with respect to the application of

policies, rules, and regulations issued by the Medicaid

agency.” (Italics added; e.g. Reynolds v. Giuliani (S.D.N.Y.

2000) 118 F.Supp.2d 352, 358; Meachem v. Wing (S.D.N.Y.

1999) 77 FSupp.2d 431, 444-445.)

The federal single state agency regulation (42 C.ER.

§ 431.10(e)) was first published in the Federal Register in

1971. (36 Fed. Regs. 3861-3862 (Feb. 27, 1971).) It was

originally promulgated, however, in a supplement to a

federal handbook issued upon enactment of the Medicaid

Act — the United States Department of Health, Education,

and Welfare, Welfare Administration, Bureau of Family

Services, Handbook of Public Assistance Administration

(“Handbook”), Supplement D - Medical Assistance Pro-

grams Under Title XIX of the Social Security Act, D 2130

(June 17, 1966) (“Supplement D”). The purpose of the

Handbook was described as follows: “The Handbook of

Public Assistance Administration is issued by the Bureau

of Family Services and is the official medium for issuance

App. 8

of interpretations and instructions concerning require-

ments of the public assistance titles of the Social Security

Act and recommendations for the administration of State

public assistance programs. The Handbook is prepared

for use by State agencies and staff of the Federal agency

in carrying out their responsibilities for administering the

public assistance programs in accordance with the Fed-

eral Act.” (U.S. Dept. of Health, Education & Welfare,

Handbook of Public Assistance Administration, Introduc-

tion (June 12, 1963).)

Supplement D stated in part: ” .. . [{] 2. In relation-

ships with other departments of State government, the

single State agency interprets its role in such a way that it

does not delegate to other than its own officials its requi-

site ultimate authority for exercising administrative judg-

ment in the State-wide administration or supervision of

the plan. [{] 3. In the event that any rules and regulations

or decisions of the single State agency are subject to

review, clearance, or other action by other offices or agen-

cies of the State government, the requisite authority of

the single State agency is not impaired. [{] 4. In the event

that any services are performed for the single State

agency by other State or local agencies or offices, such

other agencies or offices are not authorized to, and do

not, change, disapprove, or delay action on any adminis-

trative decision of the single State agency, or otherwise

substitute their judgment for that of the agency as to the

application of policies, rules, and regulations promul-

gated by the State agency. [{] 5. Any agreements with

other public agencies or private organizations to act as

the single State agency’s agent include provisions for the

single State agency obtaining from the agent the data

App. 9

needed for program planning, evaluation, reporting, and

accounting purposes and do not in any way impair the

ultimate authority of the single State agency... . ” (U.S.

Dept. of Health, Education & Welfare, Handbook of Pub-

lic Assistance Administration, Supplement D, D-2130,

supra.)

The foregoing Supplement D provisions were trans-

ferred to the Code of Federal Regulations in 1971. (36

Fed. Regs. 3860, 3861-3862.) The 1971 regulation stated in

pertinent part: “(c) Conditions for implementing the require-

ments of paragraph (a) [state plan requirements] of this sec-

tion. (1) The State agency will not delegate to other than

its own officials its authority for exercising administra-

tive discretion in the administration or supervision of the

plan, including the issuance of pelicies, rules, and regula-

tions on program matters. [{] (2) In the event that any

rules and regulations or decisions of the single State

agency are subject to review, clearance, or other action by

other offices or agencies of the State government, the

requisite authority of the single State agency will not be

impaired. [{] (3) In the event that any services are prefor-

med [sic] for the single State agency by other State or

local agencies or offices, such agencies and offices must

not have authority to review, change, or disapprove any

administrative decision of the single State agency, or oth-

erwise substitute their judgment for that of the agency as

to the application of policies, rules, and regulations pro-

mulgated by the State agency.” (36 Fed. Regs. 3861-3862

(Feb. 27, 1971.)) The current regulation, quoted above,

mirrors the language of both Supplement D and the 1971

regulation without substantive change.

App. 10

In addition to the above-quoted language ultimately

transferred to the Code of Federal Regulations, Supple-

ment D contained a lengthy discussion of the single state

agency requirement. There has been no showing that

discussion was ever published in the Code of Federal

Regulations or the Federal Register. Therefore, that dis-

cussion does not rise to the level of a federal rule or

regulation carrying the force and effect of law. (Western

Radio Services Co., Inc. v. Espy (9th Cir. 1996) 79 F.3d 896,

901-902; St. Nicholas Apartments v. U.S. (C.D.Ill. 1996) 943

F.Supp. 966, 969; Rousseau v. City of Philadelphia (E.D.Pa.

1984) 589 FSupp. 961, 971; Usery v. Board of Education

(D.Md. 1978) 462 F.Supp. 535, 548.) Handbooks issued by

federal agencies “generally are considered to be non-

binding instructions or internal operating procedures.”

(Rousseau v. City of Philadelphia, supra, 589 F.Supp. at p.

971; U.S. v. Harvey (5th Cir. 1981) 659 F.2d 62, 65; Con-

cerned Residents of Buck Hill Falls v. Grant (3d Cir. 1976)

537 F.2d 29, 38; St. Nicholas Apartments v. U.S., supra, 943

F.Supp. at p. 969.) The Handbook has no binding force on

this court. (Burroughs v. Hills (7th Cir. 1984) 741 F.2d 1525,

1529; Rank v. Nimmo (9th Cir. 1982) 677 F.2d 692, 698-699;

U.S. v. Harvey, supra, 659 F.2d at p. 65.) It is, however,

“entitled to notice so far as it is an official interpretation

of statutes or regulations with which it is not in conflict.”

(Burroughs v. Hills, supra, 741 F.2d at p. 1529; Litton Sys-

tems, Inc. v. Whirpool [sic] Corporation (Fed.Cir. 1984) 728

F.2d 1423, 1439.) Indeed, the United States Supreme Court

has frequently cited to the Handbook as a source of

federal agency interpretation of the Medicaid Act and

other Social Security Act public assistance programs.

(See, e.g., Lukhard v. Reed (1987) 481 U.S. 368, 377 [AFDC];

App. 11

Atkins v. Rivera (1986) 477 U.S. 154, 162 [Medicaid]; Con-

necticut Dept. of Income Maintenance v. Heckler (1985) 471

U.S. 524, 531 fn. 17 [Medicaid]; Heckler v. Turner (1985) 470

U.S. 184, 190, fn. 4, 198-199 [AFDC]; Quern v. Mandley

(1978) 436 U.S. 725, 737 fn. 12 [AFDC].)

In Supplement D, the federal agency interpreted the

single state agency requirement as follows: “The require-

ment for a single State agency means that one State

agency is designated by the State as the ‘single State

agency’ and is authorized to maintain in operation for the

State an approved State plan. The State has a choice- of

administering the plan through the State agency directly or

through its political subdivisions under State agency supervi-

sion. [J] Once the single State agency is established or

designated it is the agency of the State government that

represents the State in its dealings with the Federal agency on

all aspects of the medical assistance plan and its opera-

tion. It is the agency of the State government responsible

for: obtaining the statutory authority necessary to submit

a plan meeting all Federal requirements; preparing the

State plan and establishing policies for the operation of

the program; assuring that it can carry out the plan in all

political subdivisions; obtaining the State funds or the

State-local funds (as the case may be); meeting all audit

requirements; and being accountable to the [Federal agency]

for the proper and efficient administration of the program. [{]

The provision for a ‘single State agency’ is not designed

to set aside the relationships with the Governor and other

officers of the State or with other departments of the State

government that are normal and proper within the State.

The agency designated as the ‘single State agency’ is still

subject to the ordinary legislative processes, executive

App. 12

supervision, and budget and audit procedures in the

State. Other agencies and offices of State government, such as

the State fiscal officer and the State civil service agency, may

perform services for the single State agency that are essential

to the operation of the plan. Another agency or authority of

government in the State, however, may not be authorized in the

plan, or permitted in practice, to substitute its judgment for

that of the ‘single State agency’ in administrative decisions

involving the application of the policies, rules, and regulations

promulgated by the State agency. Similarly, if local agencies

administer the plan, the ‘single State agency’ must see that

the authority of such agencies to make administrative

decisions under the medical assistance law is not impaired

by the action of other agencies or officials of State or local

governments. [{] . . . [{] The ‘single State agency’ is responsi-

ble for any services that are preformed [sic] by other agencies in

the program under the plan. This does not mean that the State

agency takes over or directs such services. The agency, however,

must take such steps as may be necessary in the State to assure

that the services, as performed in the medical assistance pro-

gram, meet the Federal requirements. ...” (U.S. Dept. of

Health, Education & Welfare, Handbook of Public Assis-

tance Administration, Supplement D - Medical Assis-

tance Programs Under Title XIX of the Social Security

Act, D-2140 (June 17, 1966), italics added.)

B. The State Plan

A state must submit to the HCFA for approval a plan

describing the nature and scope of its Medicaid program

and establishing, among other things, a plan for reim-

bursing providers. (§ 1396a(a); 42 C.F.R. § 430.10; Wilder v.

Virginia Hosp. Assn. (1990) 496 U.S. 498, 502; Children’s

App. 13

Hospital and Health Center v. Belshe (9th Cir. 1999) 188 F.3d

1090, 1098.) The state plan also must provide for postpay-

ment review of provider claims. (§ 1396a(a)(37); 42 C.F.R.

§§ 447.45(c)(1) & (f)(2), 456.3.) The HCFA is authorized to

make payments to states whose medical assistance plans

meet the requirements of the federal statute. (§ 1396;

Morris v. Williams (1967) 67 Cal.2d 733, 738-739; Palumbo

v. Myers (1983) 149 Cal.App.3d 1020, 1025, 197 Cal.Rptr.

214.) Judge Levi has succinctly held: “The [HCFA’s]

approval of the State plan is a necessary precondition to

the State’s entitlement to federal funds. (. . . §§ 1396,

1396b(a).)” (Exeter Memorial Hospital Assn. v. Belshe

(E.D.Cal. 1996) 943 F.Supp. 1239, 1240, affd. (9th Cir. 1998)

145 F.3d 1106, 1109.) As the California Supreme Court

observed in Reese v. Kizer (1988) 46 Cal.3d 996, 998, “To

assure the continued availability of federal funds for

these programs|[, including Medi-Cal,] the state must

operate plans which conform to the governing federal

statutes and regulations.” Under HCFA regulations,

amendments to state plans must conform to the following

regime: “The plan must provide that it will be amended

whenever necessary to reflect — [{] (i) Changes in Federal

law, regulations[,] policy interpretations, or court deci-

sions; or [{] (ii) Material changes in State law, organiza-

tion, or policy, or in the State’s operation of the Medicaid

program....” (42 C.F.R. § 430.12(c).) HCFA regional staff

review state plans and plan amendments. (42 C.FR.

§ 430.14.) The HCFA Regional Administrator has the

authority to approve state plans and plan amendments.

(42 C.F.R. § 430.15(b).) Pursuant to title 42 of the Code of

Federal Regulations, part 430.15(a)(1), “Determinations as

to whether State plans (including plan amendments and

App. 14

administrative practice under plans) originally meet or

continue to meet the requirements for approval are based

on relevant Federal statutes and regulations.”

Ill. BACKGROUND

The underlying facts are undisputed. California sub-

mitted its state Medicaid plan to the HCFA in 1993. The

state plan identified the DHS as the single state Medicaid

agency for all purposes including auditing payments to

providers.

On July 1, 1997, the DHS and the Controller entered

into an interagency agreement “for the purpose of

increasing the State’s auditing ability to identify and

recover California Medical Assistance Program (Medi-Cal

Program) overpayments. ...” The interagency agreement

authorized the Controller “to perform audit services

relating to the Medi-Cal Program,” including, in the

event of an overpayment, to send a repayment demand to

the provider together with a copy of the audit report. The

Controller was not authorized as DHS’s representative to

withhold payments to providers. However, if the Control-

ler initiated a withhold “under its own [state law] author-

ity,” it was required to notify the DHS.4

4 The Interagency Agreement set forth the Controller’s

responsibilities as follows: “1. [The Controller] will perform

audit services relating to the Medi-Cal Program. . . . These

services will include audits as detailed in the Scope of Work

designed to identify overpayments made under the Medi-Cal

Program to providers. [{] 2. The [Controller] will notify DHS

Audits & Investigations prior to onsite reviews of Medi-Cal

providers. This will reduce duplication of effort by both

App. 15

Acting under the interagency agreement, the Control-

ler conducted a review of RCJ’s Medi-Cal claims for the

agencies. [{] 3. [The Controller’s] audits will be finalized in

audit reports and draft audit reports will be submitted to the

[DHS] at least 15 days prior to issuance. [{] 4. If the audit

identifies an overpayment of Medi-Cal funds, a demand for

repayment will be sent to the provider with a copy of the audit

report. The demand will provide information to the provider

regarding appeal rights. Copies of the audit report and demand

for repayment shall be sent to Audits & Investigations and the

DHS Office of Administrative Hearings & Appeals. [J] 5. As a

representative of DHS, [the Controller] will not initiate a

withhold of a provider’s reimbursement in the amount

identified by the audit. [{] 6. However, if [the Controller]

initiates a withhold under its own authority, [the Controller]

will not issue notices of withhold with the audit report and

demand notice. Also, [the Controller] will notify DHS when it

initiates payment withholds for Medi-Cal providers. This will

facilitate DHS’s ability to track Medi-Cal reimbursement

disposition and to respond to provider inquiries concerning

payment. [{] 7. [The Controller] will be responsible for the

resolution of the audit findings identified in their audits,

through and including the administrative appeal process before

DHS Office of Administrative Hearings and Appeals (OAHA)

under Welfare and Institutions Code section 14171, including

legal representation if needed. [{] 8. [The Controller] will

designate the following state member as [the Controller’s]

contact person for purposes of this agreement:... . ”

Exhibit A to the Interagency Agreement entitled “Scope of

Work” stated: “A. [The Controller] will target its audits for the

following program issues using trend analysis based on Medi-

Cal expenditures and historical patterns: [{] 1. Some non-

institutional providers with high volume of selected products

engage in unlawful or excessive practices; [J] 2. Some non-

institutional providers with high volume of selected products

are incorrectly billing for products or services that should be

billed at a lesser reimbursement rate; [{] 3. Some Pharmacy and

DME providers are billing Medi-Cal for unsupported quantities

App. 16

period from January 9, 1997, to October 9, 1997, and a

subsequent review for the period from October 10, 1997,

to March 26, 1998. The Controller issued final audit over-

payment findings in reports dated March 10, 1998, and

May 4, 1998. RCJ requested an administrative appeal.

On July 1, 1998, the DHS and the Controller entered

into an amended interagency agreement. Under the

amended interagency agreement, the Controller retained

authority to audit Medi-Cal claims by providers and to

send repayment demands. However, with respect to the

power to withhold payments from a provider, the July 1,

1998, amended interagency agreement provided, “Only

DHS may initiate a withhold of a provider’s Medi-Cal

funds during a review, audit, or investigation.” The pres-

ent case involves only an overpayment determination.

The Controller did not withhold any funds from RCJ.

On February 1, 1999, Division Seven of the-Court of

Appeal for this appellate district issued its opinion in

Doctor’s Medical Laboratory, Inc. v. Connell (1999) 69

of products; and/or, [{] 4. Some non-institutional providers are

reimbursed improperly and recovery is warranted under title

22, California Code of Regulations, section 51458.1 [{] B. In

performing audits for DHS, [the Controller] will document their

results in audit reports. [The Controller] will collect and retain

sufficient evidence to substantiate all audit findings and

recommendations. [{] C. The [Controller] will ensure that audit

reports are clear, accurate, and meet all of the statutory and

regulatory requirements of an audit of Medi-Cl Providers. Ata

minimum, the audit reports will include a description of the

scope of the audit, a reference to Medi-Cal authority, and the

methodology used. [{] D. Specifically, [the Controller] will

abide by the following: [specified Welfare and Institutions Code

sections and California regulations].”

ea ee ee

App. 17

Cal.App.4th 891, 896-898. In Doctor’s, the Controller with-

held payments to a provider. Our Division Seven col-

leagues held the Controller could not lawfully exercise

the power to audit or to withhold Medi-Cal payments to

providers. (Ibid.) The California Supreme Court denied

review. The remittitur issued on May 26, 1999.

By letter dated March 19, 1999, after the Doctor's

decision was filed, the DHS asked the HCFA to review

the July 1, 1998, amended interagency agreement and to

“confirm our opinion about the allowability of the [inter-

agency agreement] activities under the Medicaid pro-

gram.” By letter dated on or about March 24, 1999, Sally

Richardson, Director, Center for Medicaid and State

Operations, HCFA, responded to the DHS’s request. Ms.

Richardson’s letter, written on behalf of the HCFA, con-

cluded that the amended interagency agreement was

“fully compliant with federal single State agency require-

ments.” Further, Ms. Richardson concluded, “[W]Je see

nothing in [the Interagency Agreement] that gives [the

Controller] discretionary authority that would violate the

single State agency requirements at 42 CFR 431.10.”°

5 Ms. Richardson’s letter states in full: “I am writing in

response to your March 19 letter concerning the interagency

agreement (IA) between the [DHS] and the [Controller] under

which the [Controller] conducts audits of Medi-Cal payments to

providers. You enclosed a copy of that IA, and asked that we

advise whether the specific [Controller] functions performed

under it in fact are consistent with DHS’ responsibilities as

California’s single State agency for purposes of Medicaid

program administration. [{] The Medicaid program's single

State agency requirements are found in section 1902(a)(5) of the

Social Security Act, and at 42 CFR 431.10. The requirement that

each State designate a single State agency to administer or

App. 18

On April 1, 1999, an administrative law judge issued

a proposed decision in RCJ’s appeal. On June 7, 1999, the

supervise the administration of the program dates to enactment

of the Social Security Act in 1935, where it appears with

reference to the Title I Old-Age Assistance Program. The same

wording was incorporated into Title XIX when the Medicaid

program was enacted in 1965. The intent in both instances was

to ensure that there be a single agency in each State accountable

to the federal government for administration of the program in

compliance with federal law and policy. [{] Regulations at 42

CFR 431.10 require that: ‘.... ’ [quoting the regulation} [{]

California’s approved Title XIX State Plan designates the DHS

as the single State agency responsible for administering that

Plan. The DHS organization chart vests responsibility for fraud

and abuse, internal and external audits, and quality control in

the Audits and Investigations Division. The Chief of the

Medical Review Branch, Audits and Investigations, is the DHS

contact point for purposes of the subject IA. Under the IA, the

[Controller] is to perform audits on behalf of DHS to identify

overpayments made to providers under the Medi-Cal program.

The Scope of Work states that the IA is ‘for the purpose of

increasing the State’s auditing ability to identify and recover

California Medical Assistance Program (Medi-Cal Program)

overpayments and to provide federal matching funds for [the

Controller] audit services to the Medi-Cal Program.’ The

[Controller] must notify DHS Audits and Investigations when it

initiates a review, audit or investigation of a Medi-Cal provider.

If the [Controller] identifies an overpayment, it is to write the

provider describing the overpayment, request repayment, and

describe the provider’s administrative appeal rights. We

understand that such letters instruct the provider to either make

payment to the DHS Payment Systems Division, Recovery

Section for repayment purposes, if the provider agrees with the

overpayment determination or, in the event the provider

disagrees with the [Controller’s] determination, file an appeal

with the DHS Office of Administrative Hearings and Appeals.

The IA requires the [Controller] to transmit to DHS Audits and

Investigations a copy of each audit report and demand letter,

App. 19

DHS rejected the proposed decision. On August 5, 1999,

following a review of the administrative record, the DHS

issued its final decision. On October 28, 1999, RCJ filed its

writ petition in the trial court.

On December 17, 1999, the DHS submitted a state

plan amendment to the HCFA. The amended state plan

provided in relevant part, “The State Controller’s Office

will perform audits of Medi-Cal expenditures on behalf

of DHS and will submit its findings and recommenda-

tions to DHS for appropriate action.” The DHS requested

and make all related working papers available to DHS for

review upon request. In addition, the IA specifies that the

[Controller] will make referrals only to Audits and

Investigations, and not directly to DHS Recovery, DHS Office of

Administrative Hearings and Appeals, or any law enforcement

or other agency. [{] With respect to the fraud referral process,

the IA specifies that the [Controller] may recommend to the

DHS that it initiate a withhold action when the [Controller]

‘collects evidence of potential fraud or willful misrepresen-

tation during an investigation’ (Scope of Work, paragraph 10).

Federal regulations at 42 CFR 455.23 authorize such withholds

by the State Medicaid agency. The IA stipulates that the

[Controller] will not make independent fraud referrals to law

enforcement agencies, and that DHS will exercise its discretion

as the Medicaid single State agency when making such referrals.

{{] Based upon our review of the IA, the pertinent section of the

California State Plan, and the applicable federal regulations, we

conclude that the IA is fully compliant with federal single State

agency requirements. The fact that DHS vests Medi-Cal audit

functions in Audits and Investigations does not preclude DHS

from augmenting its own audit resources through an

appropriate arrangement with the [Controller]. The IA itself

states that ‘DHS will exercise its authority as the Medicaid

single state agency,’ and we see nothing in it that gives the

[Controller] discretionary authority that would violate the

single State agency requirements at 42 CFR 431.10.”

App. 20

an effective date of July 1, 1998. Also on December 17,

1999, the HCFA approved the state plan amendment with

an effective date of July 1, 1998, as requested. The HCFA’s

letter signed by Karen Fuller, stated in relevant part:

“(The state plan amendment] amends the State plan to

reflect the fact that the State Controller’s Office performs

audits of Medi-Cal expenditures on behalf of the Depart-

ment of Health Services (DHS). [J] Our review of [the

state plan amendment] was conducted in accordance with

the requirements of section 1902(a)(5) of the Social Secu-

rity Act (the Act) and the regulatory provisions at 42 CFR

431.10 and 431.11.”

On May 19, 2000, the trial court issued the peremp-

tory writ of mandate in this case. As noted above, the

court directed the DHS to set aside its final decision in

RCJ’s administrative appeal “insofar as it relies upon the

audit findings of the State Controller. ... ”

IV. DISCUSSION

A. Private Right of Action

The DHS contends RCJ has no “private right of

action” to enforce the single state agency requirement

embodied in the federal statute (§ 1396a(a)(5)) and its

implementing regulation (42 C.F.R. § 431.10(e)). The DHS

discusses federal decisional authority concerning

whether a health care provider may bring an action under

title 42 of the United States Code, section 1983, to chal-

lenge state practices under the Medicaid Act. (See Wilder

v. Virginia Hospital Assn., supra, 496 U.S. at p. 501; Sobky v.

Smoley, supra, 855 F.Supp. at pp. 1130-1133.) Those deci-

sions are inapposite. RC] does not seek to enforce a

App. 21

private right of action under title 42 of the United States

Code, section 1983, or otherwise. Rather, RCJ seeks judi-

cial review of a final administrative decision arising from

a Medi-Cal audit pursuant to Code of Civil Procedure

section 1094.5. Welfare and Institutions Code section

14171, subdivision (j), specifically authorizes such

review.® RCJ’s writ of mandate pursuant to Code of Civil

Procedure section 1094.5 is the proper means by which a

Medi-Cal provider may challenge an individual audit

decision. (Welf. & Inst.Code, § 14171, subdivision (j);

Florence Western Medical Clinic v. Bontaé& (2000) 77

Cal.App.4th 493, 502-503, fn. 8; Frankel v. Kizer (1993) 21

Cal.App.4th 743, 750.) The DHS does not contend the

issue presented here is beyond the scope of the issues

that may be raised upon judicial review pursuant to

Welfare and Institutions Code section 14171, subdivision

(j).

B. Doctor’s Medical Laboratory, Inc. v. Connell Is Not Con-

trolling

RCJ, by its writ petition, sought to set aside the

DHS’s final decision in this case, as “refusing to abide

by” the Court of Appeal decision in Doctor’s Medical

Laboratory, Inc. v. Connell, supra, 69 Cal.App.4th at pages

6 Welfare and Institutions Code section 14171 provides in

pertinent part: “(a) The director shall establish administrative

appeal processes to review grievances or complaints arising

from the findings of an audit... . [{] . . . [{] (j) The final decision

of the director shall be reviewable in accordance with Section

1094.5 of the Code of Civil Procedure within six months of the

issuance of the director’s final decision.”

App. 22

896-898, 81 Cal.Rptr.2d 829 (Doctor’s). RCJ contends Doc-

tor’s controls the resolution of this case. We respectfully

disagree. In Doctor’s, a Medi-Cal provider sought a writ

of mandate to compel the Controller to release approxi- -

mately $3 million in payments that had been withheld.

(Doctor’s, supra, 69 Cal.App.4th at p. 893.) The provider

alleged the Controller’s refusal to pay the claims had led

to its insolvency. (Id. at p. 895.) The Court of Appeal

found the 1997 Interagency Agreement improperly autho-

rized the Controller “to perform audits to identify over-

payments to providers, and to take corrective action,

presumably withholding sums believed to constitute

overpayment.” (Id. at p. 895.)

We need not address the DHS’s disagreement with

our Division Seven colleagues’ conclusions. The Doctor’s

opinion was filed on February 1, 1999. On March 24, 1999,

the HCFA, by process of Ms. Richardson’s letter,

expressed approval of the Controller’s audit authority.

On December 17, 1999, well after the Doctor’s opinion was

filed, the HCFA approved the use of the Controller as the

audit agency effective July 1, 1998. In Doctor’s, the Court

of Appeal did not confront, nor could our Division Seven

colleagues have confronted, the subsequent December 17,

1999, federal agency approval of the Controller’s contrac-

tual authority to audit Medi-Cal payments to providers.

The December 17, 1999, HCFA approval happened

entirely after the Doctor’s opinion was filed. The HCFA’s

approval of the delegated audit authority is squarely

presented in this case. Moreover, as discussed below, we

conclude we must defer to the HCFA’s construction of the

federal statutory and regulatory law that it administers as

reflected in its December 17, 1999, action.

ee en Fe ny ae a ee ee Se a are

App. 23

RCJ contends the HCFA’s action is immaterial

because the Controller audited it before the HCFA

expressed its approval. We disagree. By its writ petition,

RCJ sought to set aside the DHS’s final decision because

it relied on the Controller’s audit. At the time the DHS

issued its final decision, the HCFA had by letter

expressed its opinion that the delegation of audit author-

ity to the Controller was fully compliant with federal

single state agency requirements. Moreover, at the time

the trial court issued its order directing the DHS to set

aside its final decision to the extent it relied on the

Controller’s audit, the HCFA had in addition approved

the state plan amendment effective July 1, 1998. Under

these circumstances, we conclude, the federal agency’s

interpretation of its own regulation was squarely pre-

sented.

C. The HCFA’s Construction of the Federal Law that it

Administers is Entitled to Deference

1. Congress has not Specifically Addressed the Pre-

cise Question at Issue

RCJ does not specifically contend nor do we conclude

that the HCFA’s regulation is an impermissible construc-

tion of the federal statutory single state agency require-

ment. RCJ asserts in general terms that the language of

the federal statute and regulation is clear, unambiguous,

and mandatory. RCJ contends the plain language and

“obvious” meaning Of the federal statute (§ 1396a(a)(5))

and the implementing regulation (42 C.E.R. § 431.10(e))

prohibit the DHS from delegating audit authority to the

Controller; further, the HCFA’s conclusion to the contrary

App. 24

contradicts the federal law and therefore is not entitled to

any deference. We disagree.

The United States Supreme Court explained the stan-

dard to be applied on review of an administrative

agency’s construction of a statute which it administers in

Chevron, U.S.A., Inc. v. Natural Resources Defense Council,

Inc. (1984) 467 U.S. 837, 842-845: “When a court reviews

an agency’s construction of [a] statute which it adminis-

ters, it is confronted with two questions. First, always, is

the question whether Congress has directly spoken to the

precise question at issue. If the intent of Congress is clear,

that is the end of the matter; for the court, as well as the

agency, must give effect to the unambiguously expressed

intent of Congress. If, however, the court determines

Congress has not directly addressed the precise question

at issue, the court does not simply impose its own con-

struction on the statute, as would be necessary in the

absence of an administrative interpretation. Rather, if the

statute is silent or ambiguous with respect to the specific issue,

the question for the court is whether the agency's answer is

based on a permissible construction of the statute. [Fn.9.]....

[{] ‘The power of an administrative agency to administer

a congressionally created . . . program necessarily

requires the formulation of policy and the making of

rules to fill any gap left, implicitly or explicitly, by Con-

gress.’ [Citation.] If Congress has explicitly left a gap for

the agency to fill, there is an express delegation of author-

ity to the agency to elucidate a specific provision of the

statute by regulation. Such legislative regulations are

given controlling weight unless they are arbitrary, capri-

cious, or manifestly contrary to the statute. Sometimes,

the legislative delegation to an agency on a particular

App. 25

question is implicit rather than explicit. In such a case, a

court may not substitute its own construction of a statu-

tory provision for a reasonable interpretation made by

the administrator of an agency. [{] We have long recog-

nized that considerable weight should be accorded to an

executive department’s construction of a statutory

scheme it is entrusted to administer, and the principle of

deference to administrative interpretations ‘has been con-

sistently followed by this Court whenever decision as to

the meaning or reach of a statute has involved reconciling

conflicting policies, and a full understanding of the force

of the statutory policy in the given situation has

depended upon more than ordinary knowledge respect-

ing the matters subjected to agency regulations.’ [Cita-

tions.] ‘ . . . If this choice represents a reasonable

accommodation of conflicting policies that were commit-

ted to the agency’s care by the statute, we should not

disturb it unless it appears from the statute or legislative

history that the accommodation is not one that Congress

would have sanctioned.’ [Citation.]” (Fns. omitted, italics

added; accord, Garfield Medical Center v. Belshé (1998) 68

Cal.App.4th 798, 807-808.) Simply stated, once a court

determines, after reviewing the legislation, that Congress

did not directly address the precise question at issue, the

pertinent question is whether the administrative con-

struction in the form of a regulation is reasonable. (Chev-

ron U.S.A., Inc. v. Natural Resources Defense Council, Inc.,

supra, 467 U.S. at p. 845; accord, Alexander v. Sandoval

(2001) ___ U.S. ___, __ [121 S.Ct. 1511, 1518].) As the

United States Supreme Court further held in Chevron

U.S.A., Inc., “The court need not conclude that the agency

construction was the only one it permissibly could have

App. 26

adopted to uphold the construction, or even the reading

the court would have reached if the question initially had

arisen in a judicial proceeding. [Citations.]” (Chevron

U.S.A., Inc. v. Natural Resources Defense Council, Inc.,

supra, 467 U.S. at p. 843, fn. 11; Zenith Radio Corp. v.

United States (1978) 437 U.S. 443, 450.)

We consider the language of the federal statute. We

find Congress has not directly addressed the precise

question at issue; however, the statutory language plainly

suggests that a state Medicaid agency may delegate func-

tions to another state agency. Because we are considering

a federal statute, we follow rules of statutory construc-

tion enunciated by the United States Supreme Court. In

Kaiser Aluminum & Chemical Corp. v. Bonjorno (1990) 494

U.S. 827, 835, quoting from Consumer Product Safety

Comm'n v. GTE Sylvania (1980) 447 U.S. 102, 108, the

United States Supreme Court held: “The starting point for

interpretation of a statute ‘is the language of the statute

itself. Absent a clearly expressed legislative intention to

the contrary, that language must ordinarily be regarded

as conclusive.’” The United States Supreme Court has

noted that “the statutory language controls its construc-

tion” (Ford Motor Credit Co. v. Cenance (1981) 452 U.S. 155,

158, fn. 3) and that “ ‘[t]here is, of course, no more per-

suasive evidence of the purpose of a statute than the

words by which the [L]egislature undertook to give

expression to its wishes.’ ” (Griffin v. Oceanic Contractors,

Inc. (1982) 458 U.S. 564, 571.) In interpreting a statute, the

United States Supreme Court has noted: “” ‘In expounding

a statute, we must not be guided by a single sentence or

member of a sentence, but look to the provisions of the

whole law, and to its object and policy.’ [Citations.] Our

App. 27

objective in a case such as this is to ascertain the congres-

sional intent and give effect to the legislative will.” (Phil-

brook v. Glodgett (1975) 421 U.S. 707, 713.) On another

occasion, the court stated, “We do not, however, construe

statutory phrases in isolation; we read statutes as a

whole.” (United States v. Morton (1984) 467 U.S. 822, 828,

fn. omitted.) Further, in interpreting a statute, the

Supreme Court has emphasized the importance of avoid-

ing: “absurd results” (United States v. Turkette (1981) 452

U.S. 576, 580); “ ‘an odd result’ ” (Public Citizen v. U.S.

Department of Justice (1989) 491 U.S. 440, 454); or ” unrea-

sonable results whenever possible.” (American Tobacco Co.

v. Patterson (1982) 456 U.S. 63, 71.) Moreover, the Supreme

Court has noted, “Judicial perception that a particular

result would be unreasonable may enter into the con-

struction of ambiguous provisions, but cannot justify dis-

regard of what Congress has plainly and intentionally

provided.” (Commissioner of the Internal Revenue v. Asphalt

Products Co., Inc. (1987) 482 U.S. 117, 121.) In Griffin v.

Oceanic Contractors, Inc., supra, 458 U.S. at p. 571, the

court stated: “Nevertheless, in rare cases the literal appli-

cation of a statute will produce a resuit demonstrably at

odds with the intentions of its drafters, and those inten-

tions must be controlling. . . . [Citations.]” When a statute

is unambiguous, its language cannot “be expanded or

contracted by the statements of individual legislators or

committees during the course of the [legislative]

process.” (West Virginia Univ. Hospitals, Inc. v. Casey,

supra, 499 U.S. at pp. 98-99.)

As noted above, section 1396a(a)(5) requires that a

state Medicaid plan “provide for the establishment or

designation of a single State agency to administer or to

App. 28

supervise the administration of the plan. ...” It is clear the

federal statute does not specifically address the question

whether a state Medicaid agency can delegate audit

responsibility to another state agency. It does expressly

provide, however, that the designated single state agency

will administer or supervise the administration of the state

plan. The use of the disjunctive means the terms “admin-

ister” and “supervise” must be given separate meanings

except where the context dictates otherwise. (Reiter v.

Sonotone Corp. (1979) 442 U.S. 330, 339; F.C.C. v. Pacifica

Foundation (1978) 438 U.S. 726, 739-740.) To “administer”

means “to manage the affairs of” the state Medicaid

program. (Oxford English Dict. (2d ed. CD-ROM 1994).)

To “supervise” means “[t]o oversee,” “to have the over-

sight of, superintend the execution or performance of (a

thing)... . ” (Ibid.) Here, under the plain language of

section 1396a(a)(5), the DHS is authorized to supervise the

administration of the state Medicaid program; that is, to

oversee the execution or performance of the program.

The federal statute’s use of the word “supervise,” which

means something other than administer, plainly suggests

that entities other than the single state agency may be

involved in the administration of the program under the

Medicaid agency’s supervision. Further, as discussed

above, the legislative purpose of the single state agency

requirement was both to avoid a diversity of operating

standards within a state and to ensure that one agency

would be accountable to the federal government for the

operation of Medicaid program and compliance with fed-

eral law. (Sobky v. Smoley, supra, 855 F.Supp. at pp.

1145-1146; Hillburn v. Maher, supra, 795 F.2d at p. 261.) The

language of section 1396a(a)(5) is consistent with that

App. 29

purpose; it requires a Medicaid agency to administer or

Supervise the administration of the state program

(§ 1396a(a)(5)), thereby ensuring consistent operating

standards and accountability to the federal government.

We conclude, therefore, that although Congress did not

speak to the precise question at issue in this case, the

statutory language does plainly suggest that a state Medi-

caid agency may delegate functions to another state

agency. As the United States District Court for the Dis-

trict of Rhode Island held in King v. Sullivan (1991) 776

F.Supp. 645, 656-657, “Section 1396a(a)(5) requires that a

State Plan provide for a single state agency ‘to administer

or to supervise the administration of the plan.’ 42 U.S.C.

§ 1396a(a)(5) (1988) (emphasis added). The statute does

not require states to use only one agency to carry out

every task that is part of the State Plan. See 42 C.FR.

§ 431.10(e)(3) (1990)... . ”

2. The HCFA’s Regulation is a Permissible Con-

struction of the Federal Statute

We turn to the HCFA’s implementing regulation. As

discussed above, where, as here, Congress has not

directly addressed the precise issue, the question for a

state court is whether the federal agency’s answer is

based on a permissible construction of the statute. (United

States v. Morton, supra, 467 U.S. at p. 834; Chevron, U.S.A.,

Inc. v. Natural Resources Defense Council, Inc., supra, 467

U.S. at p. 843.) We conclude the implementing regulation

is a permissible construction of the federal statute.

As noted above, the HCFA interpreted the federal

statutory single state agency requirement in title 42 of the

App. 30

Code of Federal Regulations, part 431.10 as follows: “(e)

Authority of the single State agency. In order for an

agency to qualify as the Medicaid agency - [{] (1) The

agency must not delegate, to other than its own officials,

authority to — [{] (i) Exercise administrative discretion in

the administration or supervision of the plan, or [{] (ii)

Issue policies, rules, and regulations on program matters.

{{] (2) The authority of the agency must not be impaired

if any of its rules, regulations, or decisions are subject to

review, clearance, or similar action by other offices or

agencies of the State. [J] (3) If other State or local agen-

cies or offices perform services for the Medicaid agency,

they must not have the authority to change or disapprove

any administrative decision of that agency, or otherwise

substitute their judgment for that of the Medicaid agency

with respect to the application of policies, rules, and

regulations issued by the Medicaid agency.” The HCFA’s

regulation is consistent with both the language and legis-

lative purpose of the federal statute. The implementing

regulation requires that the state Medicaid agency retain,

and not delegate, its ultimate authority to “[e]xercise

administrative discretion in the a ministration or supervi-

sion of the [state] plan.” (42 C.F.R. § 431.10(e)(1)(i), italics

added.) It further requires that the state Medicaid agency

retain, and not delegate, it [sic] authority to “[iJ]ssue

policies, rules, and regulations on program matters.” (42

C.F.R. § 431.10(e)(1)(ii).) Under the regulation, if another

entity performs services for a single Medicaid agency, it

“must not have the authority to change or disapprove

any administrative decision of that agency, or otherwise

substitute [its] judgment for that of the Medicaid agency

with respect to the application of policies, rules, and

App. 31

regulations issued by the Medicaid agency.” (42 C.FR.

§ 431.10(e)(3).). The regulation ensures that the single

state agency will retain administrative discretion in the

supervision of the Medicaid program and will remain

accountable to the government of the United States for

the state’s administration of the program and compliance

with federal Medicaid law. We conclude the HCFA’s con-

struction of the federal statutory single state agency

requirement in title 42 of the Code of Federal Regula-

tions, part 430.10(e), is a permissible and reasonable one.

3. Application of the Regulation to the Circum-

stances of this Case was not Plainly Erroneous or

Inconsistent with the Regulation

RCJ contends that the HCFA’s application of its own

regulation to the circumstances of this case is plainly

erroneous or its reasoning is inconsistent with the regula-

tion. We disagree.

The United States Supreme Court has held that a

federal agency’s interpretation of its own regulation is

controlling unless it is “ ‘plainly erroneous or inconsis-

tent with the regulation.’ ” (Robertson v. Methow Valley

Citizens Council (1989) 490 U.S. 332, 359, quoting Bowles v.

Seminole Rock & Sand Co. (1945) 325 U.S. 410, 414; Auer v.

Robbins (1997) 519 U.S. 452, 461; Martin v. Occupational

Safety and Health Review Com. (1991) 499 U.S. 144, 150-151;

Udall v. Tallman (1965) 380 U.S. 1, 16.) To paraphrase the

Supreme Court in a case involving the Department of

Health and Human Services: “[W]e must defer to the

[HCFA’s] interpretation [of its own regulation] unless an

‘alternative reading is compelled by the regulation’s plain

App. 32

language or by other indications of the [HCFA’s] intent at

the time of the regulation’s promulgation.’ [Citation.]”

(Thomas Jefferson University v. Shalala (1994) 512 U.S. 504,

512; Christensen v. Harris County (2000) 529 U.S. 576, 588

[deference to agency’s interpretation of regulation unwar-

ranted where interpretation contradicted plain and clear

language of regulation].)” The lower federal courts have

held the HCFA’s interpretation of Medicaid regulations is

entitled to great weight and deference. (New York Dept. of

Social Services v. Dubline (1973) 413 U.S. 405, 421; Visiting

Nurse Association of North Shore, Inc. v. Bullen (1st Cir.

1996) 93 F.3d 997, 1002; North Carolina v. United States

Dept. of Health and Human Servs. (4th Cir. 1993) 999 F.2d

767, 769-770; Folden v. Washington State Dept. of Social and

Health Servs. (9th Cir. 1992) 981 F.2d 1054, 1058; Missouri

Dept. of Social Servs. v. Sullivan (8th Cir. 1992) 957 F.2d

542, 544; Citizens Action League v. Kizer (9th Cir. 1989) 887

F.2d 1003, 1007; Garfield Medical Center v. Belshé, supra, 68

Cal.App.4th at p. 808; Dept. of Health Services v. Superior

Court (1991) 232 Cal.App.3d 776, 782; Frank v. Kizer (1989)

213 Cal.App.3d 919, 924; see Eisenberg v. Myers (1983) 148

Cal.App.3d 814, 822.) As the United States Court of

Appeal for the Seventh Circuit held in Indiana Assn. of

Homes for the Aging Inc. v. Indiana Office of Medicaid Policy

and Planning (7th Cir. 1995) 60 F.3d 262, 266, the HCFA’s

interpretation of its own regulations “is of controlling

7 The United States Supreme Court’s recent decision in

United States v. Mead Corporation (2001) __ U.S. __, ___ [121

S.Ct. 2164, 2170] does not change this standard of review. Mead

Corporation involved a tariff classification by the United States

Customs Service. No federal agency interpretation of its own

regulation was at issue in Mead Corporation.

App. 33

weight unless plainly erroneous or inconsistent with the

regulation.” As the United States Court of Appeals for the

First Circuit explained in Visiting Nurse Association of

North Shore, Inc. v. Bullen, supra, 93 F.3d at page 1002: “As

a federal agency charged with administering the Medi-

caid program . . . HCFA plainly is entitled to [Chevron

U.S.A., Inc. v. Natural Resources Defense Council, Inc.,

supra, 467 U.S. at pp. 842-843] deference in its interpreta-

tions of the [Medicaid] Act and the implementing regula-

tions. [Citations.] Indeed, when a federal agency has

promulgated and published a regulation pursuant to its

own enabling statute, we review its interpretation of that

regulation under a standard even ‘more deferen-

tial .. . than that afforded under Chevron’ to the-agency’s

interpretation of the Statute. [Citations.] ‘[P]rovided an

agency's interpretation of its own regulation does not

violate the Constitution or a federal statute, it must be

given “controlling weight unless it is plainly erroneous or

inconsistent with the regulation.” ’ [Citations.]”

RCJ does not specifically challenge the December 17,

1999, state plan amendment. However, that under federal

law, when, as here, a state plan or amendment has been

reviewed and approved by the HCFA, a party challenging

its legality must show that the provisions at issue are

“ “arbitrary, capricious, an abuse of discretion, or other-

wise not in accordance with law’ before [a court] will find

them substantively invalid.” (Concourse Rehabilitation &

Nursing Center, Inc. v. DeBuono (1999) 179 F.3d 38, 44;

Pinnacle Nursing Home v. Axelrod (2d Cir. 1991) 928 F.2d

1306, 1313; California Hospital Assn. v. Schweiker (C.D. Cal.

1982) 559 F.Supp. 110, 116.) In Indiana Assn. of Homes for

App. 34

the Aging Inc. v. Indiana Office of Medicaid Policy and Plan-

ning, supra, 60 F.3d at page 266, the United States Court of

Appeals for the Seventh Circuit held: “Indiana’s amended

[Medicaid] plan was approved by HCFA and is accord-

ingly a product of state and federal agency action. [Cita-

tion.] ‘A trial court, therefore, must review the plan with

the deference accorded federal agency actions.’ [Cita-

tions.] ‘This deference entitles the . . . plan to a presump-

tion of regularity, but does not prevent the court from a

thorough, probing, in-depth review.’ [Citations.] In con-

ducting this review, the court ‘shall hold unlawful and set

aside agency action, findings and conclusions found to

be . . . arbitrary, capricious, an abuse of discretion, or

otherwise not in accordance with law’ or ‘without obser-

vance of procedure required by law.’’ [Citation.]” ‘Our

state courts have recognized that the HCFA’s approval of

California’s Medicaid plan is entitled to deference unless

“palpably erroneous.” (Garfield Medical Center v. Belshe,

supra, 68 Cal.App.4th at p. 808; Eisenberg v. Myers, supra,

148 Cal.App.3d at p. 822.)

We find the HCFA’s construction of its own regula-

~tion—as reflected in Ms. Richardson’s March 24, 1999,

letter and the December 17, 1999, approval of the state

plan amendment as allowing the DHS to delegate audit

responsibility to the Controller is entitled to deference.

RCJ contends the single state agency regulation (42 C.F.R.

§ 431.10(e)(3)) specifically prohibits the DHS from dele-

gating any administrative discretion to another state

agency unless expressly authorized to do so by another

regulation as, for example, with respect to eligibility

ee ee ee ee ee

App. 35

determinations (42 C.F.R. § 431.10(c)).8 We disagree. The

HCFA has, from the inception of Medicaid until the pres-

ent time, interpreted the regulation at issue as allowing a

single state Medicaid agency to delegate responsibilities

to another state agency. The HCFA has permitted such

delegation so long as the single state Medicaid agency:

supervises the other agericy; remains responsible for that

agency’s actions; and remains accountable to the federal

government for the administration of the state Medicaid

plan. (U.S. Dept. of Health, Education & Welfare, Hand-

book of Public Assistance Administration, Supplement D

- Medical Assistance Programs Under Title XIX of the

8 Title 42, Code of Federal Regulations, part 431.10(c)

States: “Determination of eligibility. [J] (1) The plan must

specify whether the agency that determines eligibility for

families and for individuals under 21 is — [{] (i) The Medicaid

agency; or [{] (ii) The single State agency for the financial

assistance program under title IV-A (in the 50 States or the

District of Columbia), or under title I or XVI (AABD), in Guam,

Puerto Rico, or the Virgin Islands. [{] (2) The plan must specify

whether the agency that determines eligibility for the aged,

blind, or disabled is — [{] (i) The Medicaid agency; [{]} (ii) The

single State agency for the financial assistance program under

title IV-A (in the 50 States or the District of Columbia) or under

title I or XVI (AABD), in Guam, Puerto Rico, or the Virgin

Islands; or [{]] (iii) The Federal agency administering the

supplemental security income program under title XVI (SSI). In

this case, the plan must also specify whether the Medicaid

agency or the title IV-A agency determines eligibility for any

groups whose eligibility is not determined by the Federal

agency. [{] (d) Agreement with Federal or State agencies. The

plan must provide for written agreements between the

Medicaid agency and the Federal or other State agencies that

determine eligibility for Medicaid, stating the relationships and

respective responsibilities of the agencies.”

App. 36

Social Security Act, D 2140 (June 17, 1966).) In the HCFA’s

view, a regulation expressly authorizing a state Medicaid

agency to delegate audit authority to another state agency

is not required. As noted above, the current single state

agency regulation (42 C.FR. § 431.10(e)) states that the

state Medicaid agency may rely on other state agencies’

services provided that it does not delegate its authority,

i.e., its ultimate authority: to “[e]xercise administrative

discretion in the administration or supervision of the

plan”; or to “[i]ssue policies, rules, and regulations on

program matters.” (42 C.F.R. § 431.10(e)(1)(i) & (e)(1)(ii)).

In addition, title 42, Code of Federal Regulations part

431.10(e)(2) states, “The authority of the [state Medicaid]

agency must not be impaired if any of its rules, regula-

tions, or decisions are subject to review, clearance, or

similar action by other offices or agencies of the State.”

Another state entity performing services for the state

Medicaid agency must not have the authority: “to change

or disapprove” the state Medicaid agency’s administra-

tive decisions. (42 C.F.R. § 431.10(e)(3).) Further, the other

entity must not have the authority to substitute its judg-

ment for that of the state Medicaid agency “with respect

to the application of policies, rules, and regulations

issued by the Medicaid agency.” (Ibid.)

Moreover, it is undisputed the DHS has not dele-

gated to the Controller any authority to issue policies,

rules, or regulations on Medi-Cal program matters. Nor

do we find that the Controller reviews or takes similar

action with respect to the DHS’s rules, regulations, or

decisions. Further, RCJ has not pointed to, and we have

not found, any evidence in the record that the Controller

has been given authority to change or disapprove any

App. 37

administrative decision by the DHS. Instead, the Control-

ler undertakes, on DHS’s behalf, required postpayment

reviews of provider claims. RCJ also has not pointed to,

and we have not found, any evidence in the record that

the Controller’s office has the authority to substitute its

judgment for that of the DHS with respect to the applica-

tion of policies, rules, and regulations issued by the DHS.

Nor has the DHS delegated to the Controller any author-

ity to exercise discretion in the administration or supervi-

sion of the statewide Medicaid plan. The interagency

agreement does not have any bearing on the ultimate

authority of the DHS to exercise administrative judgment

in the statewide administration »r supervision of the

Medi-Cal program as conductec under the state plan.

What the DHS has delegated to tne Controller is only the

authority to conduct postpayment audits of Medi-Cal

provider claims. The DHS has authorized the Controller

to: perform audit services including audits designed to

identify overpayments to providers; “target its audits for

[specified] program issues using trend analysis based on

Medi-Cal expenditures and historical patterns”; docu-

ment results in “clear, accurate” audit reports meeting

“all of the statutory and regulatory requirements of an

audit of Medi-Cal providers”; abide by specified state

codes and regulations; “collect and retain sufficient evi-

dence to substantiate all audit findings and recommenda-

tions”; issue repayment demands; send repayment

demands to providers with a copy of the audit report;

provide information to the provider regarding appeal

rights; and take responsibility for the resolution of audit

findings through and including the administrative appeal

process. The DHS remains ultimately responsible for

App. 38

postpayment audits of Medi-Cal providers. The DHS

supervises the Controller’s services. The Controller must

notify the DHS’s Audits and Investigations Division

“prior to onsite reviews of Medi-Cal providers.” The

Controller must provide draft audit reports to the DHS at

least 15 days prior to issuance. The Controller must send

copies of an audit report and demand for repayment to

the DHS Audits and Investigations Division and Office of

Administrative Hearings and Appeals. Given these cir-

cumstances, the HCFA could reasonably conclude that, as

authorized by title 42 Code of Federal Regulations part

431.10(e)(3), the DHS has simply contracted with the

Controller to perform required postpayment audits. The

HCFA’s conclusion that the delegation of audit respon-

sibilities to the Controller is fully compliant with federal

single state agency requirements is not plainly erroneous

or inconsistent with the regulation. Therefore, it is enti-

tled to and will be accorded controlling weight.

V. DISPOSITION

The trial court’s judgment granting a peremptory

writ of mandate is reversed. Defendant, the Director of

the California Department of Health Services, is to

recover its costs on appeal from plaintiff, RCJ Medical

Services, Inc.

CERTIFIED FOR PUBLICATION

TURNER, P.J.

We concur:

GRIGNON J.

ARMSTRONG, J.

7 —

PRR te a TR he?) Ve ite

App. 39

IN THE COURT OF APPEAL OF THE

STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION: 5

DATE: August 30, 2001

Patric Hooper

Hooper Lundy & Bookman, Inc.

1875 Century Park East

Suite 1600

Los Angeles, CA 90067-2104

RCJ Medical Services, Inc.

vV.

The Director of the State Department of Health Services

B143160

Los Angeles County No. BS060056

THE COURT:

Petition for rehearing denied.

App. 40

HOOPER, LUNDY & BOOKMAN, INC.

PATRIC HOOPER (SBN 57343)

1875 Century Park East, Suite 1600

Los Angeles, California 90067-2799

Tel: (310) 551-8165

Fax: (310) 551-8181

Attorneys for Petitioner

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES

RCJ MEDICAL SERVICES, ) Case No. BS 060056

INC. dba )

AMERICAN NETWORK __ ) [PROPOSED] JUDGMENT

LABORATORY, ) GRANTING PEREMPTORY

) WRIT OF MANDATE

Petitioner,

(Filed May 18, 2000)

V.

THE DIRECTOR OF |

THE STATE, ETC.

Respondent.

~~ ee”

Petitioner’s Motion for a Peremptory Writ of Man-

date in this matter came on regularly for hearing before

the Honorable David P. Yaffe, Judge presiding in Depart-

ment 86 of the within Court, on May 2, 2000. Petitioner,

RCJ Medical Services, Inc., was represented by Patric

Hooper of Hooper, Lundy & Bookman, Inc., and respon-

dent Director of the State Department of Health Services,

was represented by Patricia L. Nagler, Deputy Attorney

General.

One Se

App. 41

The Court having considered all of the pleadings and

the written and oral argument of counsel, and having

issued the tentative decision which is reflected in its

Minute Order of May 2, 2000, and which constitutes its

Statement of Decision,

IT IS HEREBY ORDERED, ADJUDGED AND

DECREED that a peremptory writ of mandate be issued

requiring the respondent, the Director of the State

Department of Health Services to set aside her Final

Decision in this case insofar as it relies upon /s/ DPY

amdito—vord the audit findings of the State Controller.

/s/ DPY whict-gavetisetothetinatadministrative ceci=

storr-under-review.

IT IS FURTHER ORDERED that plaintiff shall recover

its costs of suit in the amount of $

DATED: May 18, 2000

By: /s/ Judge David P. Yaffe

DAVID P. YAFFE

Judge of the Superior Court

App. 42

BEFORE THE DEPARTMENT OF HEALTH SERVICES

STATE OF CALIFORNIA

ADMINISTRATIVE HEARINGS

In the Matter of:

AMERICAN NETWORK

LABORATORY (RC]J

Medical Services, Inc.

PROVIDER NO. LAB87216F

DATE REPORTS ISSUED

March 10, 1998 & May 4, 1998

Appeal No.

SR8-0298-550-RC

SR8-0398-644-RC

FINAL DECISION

ee

SUMMARY

The appeal is granted in part and denied in part.

The Office of the State Controller has the authority to

audit Medi-Cal claims, as long as it complies with federal

Medicaid laws and regulations, as well as California

Medi-Cal laws and regulations.

The Office of the State Controller may use a valid

statistical and extrapolation methodology during its audit

process to help determine the amount of an overpayment

to a provider, but should disallow payment only at the

lower limit of the 95 percent confidence interval.

Evidence introduced into the record supports the

conclusion that a laboratory provider should not perform

tests where there is no name of the referring physician on

the requisition form. In addition, a provider cannot insu-

late itself from possible financial consequences by relying

a ye ee PP ee

oe a ae Te ee ee ee ee eee

~~ n

— oe ee

App. 43

on alleged arrangements made by independent contrac-

tors with medical clinics and/or doctors regarding the

requesting of laboratory tests.

Where sufficient evidence is produced to establish

that a provider billed for services in excess of what was

ordered by a physician, or did not perform tests that were

ordered, audit adjustments taken by the Controller will

be upheld.

Where a preponderance of the evidence shows that

no eligible Medi-Cal beneficiary received the service that

was billed for, payment for the service in question must

be disallowed.

PROCEEDINGS

This matter was heard before Robert L. Carisoza,

Administrative Law Judge for the Department of Health

Services, on June 15 and 16, 1998, in Los Angeles, Califor-

nia. The representatives present were:

Geoftrey F. Margolis, Esq., for the Office of the State

Controller (Controller); and

Patric Hooper, Esq., for American Network Labora-

tory (Provider).

The Names of other persons in attendance are a

matter of record. At the conclusion of the formal hearing

the administrative record was held open for the submis-

sion of written closing arguments. After receipt of these

closing arguments, the formal administrative record was

closed effective December 9, 1998.

ee

App. 44

A Proposed Decision was signed by the Administra-

tive Law Judge on April 1, 1999, and was mailed to the

parties and to the deputy Director and Chief Counsel for

the Department of Health Services with a request for

comments. Comments were received from the Controller

and from the department of Health Services.

On May 28, 1999, the Provider’s counsel notified the

Office of Administrative Hearings and Appeals that the

published appellate decision in Doctor’s Medical Labora-

tory, Inc. v. Connell (1999) 69 Cal.App.4th 891 (“the Connell

decision”) had become final, and asked that the appeal be

granted in its entirety based upon the decision. Further

briefing on the applicability of the decision was submit-

ted by both parties.

On June 7, 1999, the Proposed Decision was timely

rejected, and the parties were given notice that the pri-

mary reason for so doing was to consider the effect of the

finality of the Connell decision. The Provider’s counsel

waived further briefing on this issue. Subsequently, the

parties and the Department of Health Services were given

the opportunity to submit additional briefing on the

question of the propriety of payment for services not

received by a Medi-Cal beneficiary, and all three submit-

ted additional comments in response to this request.

Based upon a review of the entire record, including

the transcript, pursuant to Government Code section

11517(d), this constitutes the Final Decision of the

Department of Health Services.

~

App. 45

ISSUES

1. Whether the Office of the State Controller has

authority to audit Medi-Cal claims.

2. Whether the sampling and extrapolation meth-

odology and findings used by the Controller in both of its

audits are valid.

For Audit #1:

3. Whether finding #1 is proper in concluding that

alleged referring physicians did not actually refer

patients to the Provider.

4. Whether finding #2 is correct in concluding that

laboratory tests were not ordered by referring physicians

or not performed by the Provider.

5. Whether finding #3 is proper in concluding that

services were not provided to the claimed beneficiaries,

and therefore, the Provider should reimburse the Medi-

Cal program.

6. Whether finding #4 is correct in concluding that

laboratory tests were not ordered.

For Audit #2:

7. Whether finding #1 is correct in concluding that

laboratory tests were not ordered by referring physicians

or were not performed by the Provider.

8. Whether finding #2 is proper in concluding that

services were not provided to the claimed beneficiaries,

and therefore, the Provider should reimburse the Medi-

Cal program.

App. 46

STIPULATION

During the course of the hearing the parties stipu-

lated that the following exhibits would be treated as

direct evidence: exhibits 44, 47, 55, 58, 84, 89, 94, and 97.

BACKGROUND FACTS

A preponderance of the oral and documentary evi-

dence introduced into the administrative record during

the course of the hearing established the following:

\

I

The Provider is a general clinical laboratory licensed

by the State of California, and certified by the Depart-

ment to perform diagnostic services for eligible benefici-

aries of the Medi-Cal program. Within the scope of this

licensing and certification, the Provider performed var-

ious laboratory services in the Los Angeles area during

the period January 1997 through March 1998, for which

the Provider was reimbursed by the Medi-Cal program.

I]

Relying on statutory authority and an interagency

agreement with the Department of Health Services

(Department), the Controller initially conducted a review

of the Provider’s Medi-Cal claims for medical testing

services which were submitted during the period January

9, 1997, through October 9, 1997. The purpose of this

review was to determine the Provider’s compliance with

the applicable provisions of the Medi-Cal program gov-

erning the performance of laboratory services. This report

App. 47

concluded that the Provider had been overpaid!

$1,296,801.00 by the Medi-Cal program for the services

rendered. This overpayment amount was calculated

using a statistical extrapolation methodology which pro-

jected the findings of the 110 random sample items

reviewed to the entire population of 10,857 items. The

Controller issued its findings resulting from this review

in a final report dated March 10, 1998. The Provider filed

a timely appeal from the findings of this report by letter

dated March 19, 1998. Thereafter, the Controller con-

ducted a follow-up review of the Provider’s Medi-Cal

claims submitted for medical testing services which were

performed during the period of October 10, 1997, through

March 6, 1998. This report concluded that the Provider

had been overpaid $164,766.00 by the Medi-Cal program

for the services rendered. The Controller issued its find-

ings resulting from this review in a final report dated

May 4, 1998. The Provider filed a timely appeal from the

findings of this report on May 6, 1998. These two appeals

were subsequently consolidated for hearing and decision.

FINDINGS OF FACT AND

DETERMINATION OF ISSUES

I

The relationship of the Department of Health Ser-

vices (Department) with Medi-Cal providers is in the

nature of a contract, the terms of which include and are

1 Throughout this decision, references to “payment” are to

authorization for payment, regardless of the current status of

the cash; that is, this decision adjudicates legal ownership of the

funds, not their physical possession.

App. 48

limited by the laws and valid regulations applicable to

the Medi-Cal program (Paramount Convalescent Center, Inc.

v. Department of Health Care Services (1975) 15 Cal.3d 489;

California Medical Association v. Lackner (1981) 117

Cal.App.3d 552). The Controller conducted an audit of

the Provider’s records in reliance on California Govern-

ment Code sections 925.6, 926.15, and 12410, and pur-

suant to an interagency agreement between the

Controller and the Department. The issues in this appeal

involve questions of the proper interpretation and appli-

cation of those laws, regulations, and contract provisions.

CONTROLLER’S AUTHORITY TO

AUDIT MEDI-CAL CLAIMS

II

The first issue raised by the Provider concerns the

authority of the Controller to audit Medi-Cal claims

under either federal or state law.

In summary, the Provider contends that federal medi-

caid law and regulations prohibit the Controller from

conducting Medi-Cal audits as the Department is the

single state agency designated to administer the Medicaid

program in California. In addition, the Provider argues,

California law does not authorize the Controller to audit

Medi-Cal claims, but designates the department as the

responsible state agency to carry out that function.

These same questions were previously raised and

have been addressed by the United States District Court

for the Central District of California in the case of Health

Line Clinical Laboratory, Inc.; and RC] Medical Services, Inc.,

v. Kathleen Connell, Controller of the State of California, et al.,

&

i

App. 49

Case No. CV-98-1620-RJK. The court in that case held that

the Controller must comply fully with all federal Medi-

caid laws and regulations, as well as with all applicable

Welfare and Institutions Code and California Code of

Regulations sections, as it agreed to do in the interagency

agreement with the Department, and as required under

federal law. If the court had agreed with the Provider’s

contentions as set forth above, it would have issued a

different ruling. Since it did not, it is safe to conclude that

the court accepted that the Controller can audit Medi-Cal

providers as long as it follows federal Medicaid law and

regulations, as well as California’s Medi-Cal laws and

regulations.

The Provider also argues that the appeal must be

granted based on the Connell decision, supra, in which the

Court of Appeal for the Second Appellate District stated

that “[t]he Controller could not lawfully exercise power

to audit provider payments and withhold alleged

excesses.” (69 Cal.App.4th at 897). The Provider argues

that the Department is bound by the Connell decision and

must reverse the overpayment disallowance based on the

Controller’s alleged lack of authority.

In order to determine the impact of the Connell deci-

sion on this administrative matter, it is critical to observe

what was and was not before the court in that case. The

Provider filed the action to challenge the Controller’s

“withhold” (refusal to disburse) of moneys otherwise

payable to the Provider. No audit report or audit findings

2 it is also noted that the federal court expressly kept itself

apprised of the progress of this administrative action, and

refused to interfere with its completion.

App. 50.

were in front of the trial court, nor was complete evi-

dence presented as to how the Controller functions as an

agent of the Department in connection with the Medi-Cal

audit function. The Department was not a party. The

Controller based her argument on the constitutional and

statutory authority of her office, since the withhold was

taken under that authority, which is separate and apart

from the audit function performed pursuant to the inter-

agency agreement with the Department.

Although, later on in the Connell litigation, the Con-

troiler’s status as an agent of the Department was argued,

that status, and how it relates to the Controller’s author-

ity to audit, was never squarely at issue before the Court

of Appeal, since no trial court record had been made

concerning any audit.

It is unquestionable that the Court of Appeal, in

ruling The Controller’s withhold contrary to federal

requirements, and ordering it to be dissolved, did include

in its discussion references to audit authority. However,

such references were not based on a fully developed

record, and relate to something that was not factually

before the court. Further, the court did not, and had no

reason to, discuss the Controller’s audit authority stand-

ing alone. It was only the authority to “audit... and

withhold” that was at issue.

With all due respect for the opinion of the Court of

Appeal, its very brief discussion of this subject, based on

an incomplete record, does not appear to be a dispositive

pronouncement concerning the Controller’s authority to

audit, with the audit leading to an independent evalua-

tion of the case by an Administrative Law Judge of the

App. 51

Department of Health Services, and a Final Decision of

the Department. The court of Appeal was not aware that

the coordination of audit resources between the Depart-

ment and the Controller is pursuant to an interagency

agreement that has now been found to be fully in compli-

ance with federal requirements by the responsible federal

agency. The record in this administrative case contains a

copy of a letter dated March 24, 1999, from Sally K.

Richardson, Director, Health Care Financing Administra-

tion, stating that the use of Controller’s audit resources,

in the manner specified in the interagency agreement, to

increase the state’s ability to identify and recover over-

payments, is consistent with California’s Medicaid State

Plan and applicable federal law. The letter specifically

approves the use of federal matching funds by the Con-

troller for audit purposes.

It is also notable that the Court of Appeal for the first

Appellate District upheld, albeit without specific com-

ment on the subject, an overpayment determination made

by the Department after a Controller’s audit. In Taye v.

Coye (1994) 29 Cal.App.4th 1339, the Court of Appeal

accepted the decision resulting from the Department’s

administrative process as a proper decision, notwith-

standing the Controller’s involvement as an agent of the

Department.

The oblique, indirect way in which the Court of

Appeal for the Second District commented on the ques-

tion of the Controller’s audit authority, and the fact that

the First District has accepted that authority in a pub-

lished decision, seen together, create substantial uncer-

tainty in the law, and deprive the Provider’s argument,

that this appeal must be granted, of a firm foundation.

App. 52

The Department, having entered into an inter-agency

agreement with the Controller that has been approved by

both state and federal control agencies, believes that the

Controller, as the Department’s agent, properly con-

ducted the underlying audit. For the reasons stated, it is

concluded that the Department and the Controller should

have the opportunity to defend that authority before a

court.

EXTRAPOLATION METHODOLOGY

Ill

The second issue to be addressed deals with the

validity of the sampling and extrapolation methodology

used by the Controller.

The Provider first contends that the Controller does

not have the authority to use sampling and extrapolation

methodologies to perform postservice, prepayment

audits. This question was not specifically addressed by

either court in the cases cited above. However, title 22,

California Code of Regulations, section 51159, authorizes

the Department to perform postservice prepayment

audits to review for program coverage, and payments to

providers may be withheld or reduced if the service

rendered was inappropriate. In addition, section 51458.2

of the same regulations authorizes the Department to

utilize probability sampling to extrapolate the amount to

be recovered from a provider.

Based on the two regulations referenced above, it is

found that the Controller, as the Department's agent, can

use probability sampling to extrapolate the amount to be

recovered from the Provider. As to the specific funds

App. 53

disallowed by the Controller pursuant to its sampling

and extrapolation methodologies, a determination must

be made as to whether the specific methodologies used to

calculate the amount of the overpayment were valid.

IV

The Controller used the identical statistical meth-

odology in audit #1 and #2. The method is called the ratio

method of estimation, and was taken from Herbert

Arkin’s book, Handbook of Sampling for Auditing and

Accounting, 3rd Edition. The sample selected for audit #1

was a systematic random sample of 110 items from a

universe of 10,857, using two random starting points with

every 200th item selected. Once the sample items were

selected, each was reviewed to determine if payment

should be allowed or disallowed. If an item was disal-

lowed it was disallowed for one of four specific reasons,

as will be discussed below. Once all sample items were

reviewed, allowed and disallowed amounts were totaled.

The sample error rate was found to be 60.94 percent with

respect to audit #1. When extrapolated to the entire uni-

verse, the point estimate for audit #1 was found to be an

overpayment of $1,296,801, with a precision of 14.43 per-

cent or margin of error of plus or minus $187,191, at a

confidence level of 95 percent. For audit #2, the point

estimate was found to be $164,766, with a precision factor

or margin of error of plus or minus $81,225.

Experts from both sides testified that the methodol-

ogy used to select the random sample was appropriate.

The Controller’s witness further testified that the extrap-

olation from the sample was proper and that the findings

App. 54

were accurate. The Controller’s expert opined that she

could have made the sample and extrapolation tighter

but was not consulted prior to the Controller’s audit. She

felt, however, that using the upper limit would still be

appropriate. Although the Provider’s expert opined that

the extrapolation regarding one finding should not have

been done, but instead a complete audit of all claims

within that finding should have been undertaken, this

tribunal concludes that the Controller’s methodology was

proper and that its findings were accurate. The Control-

ler’s randomly selected sample represented the entire

universe, and therefore, a more in-depth analysis of one

finding would not have added to the validity of the

Controller’s findings.

It is found that the Controller’s sampling methodol-

ogy, and extrapolation were appropriate methods, and

that the findings were accurate. The Provider argued that

using the point estimate is less accurate and reliable than

using the lower limit of the precision factor. As the Con-

troller’s expert testified, the issue is not one of accuracy,

but one of whether one wishes to err in favor of prevent-

ing overpayment, or in favor of ensuring that overpay-

ment demands are not overstated. It has been the

longstanding interpretation of the Department that the

number which more conservatively estimates the over-

payment rate, that is, the lower limit of the 95 percent

confidence interval, should be used. There is no rational

basis for deviating from that interpretation simply

because the Controller’s auditors conducted the audit.

Therefore, when calculating the Provider’s overpay-

ment, the lower limit shall be used. Consequently, the

maximum overpayment to the Provider for audit #1 can

a OR

App. 55

only be $1,109,610, which is the point estimate of

$1,296,801 minus the margin of error of $187,191. The

maximum overpayment to the Provider for audit #2 can

only be $83,541, using the same formula.

V

The next issue deals with finding #1 of audit #1, and

concerns the question of whether alleged referring physi-

cians actually referred patients to the Provider.

The Controller contends that the Provider billed for

laboratory tests that were never requested, according to

the referring physician indicated on the laboratory requi-

sition. Of the 110 sample items, 20 were referred by a Dr.

Herrera. When Dr. Herrera was interviewed by the Con-

troller’s auditors, he denied ever having treated any of

the 20 patients, and denied requesting any lab tests from

the Provider. In addition, he denied having worked at

Clinica Santa Maria, where these 20 patients were alleged

to have been treated by Dr. Herrera. Finally, he denied

having signed a comprehensive master panel agreement

with the Provider, and denied having signed an applica-

tion to obtain a Medi-Cal provider number.

Dr. Herrera testified and confirmed the above state-

ments. In addition, he testified that Dr. Villamizar was

the medical director of Clinica Santa Maria. Although Dr.

Herrera worked for Dr. Villamizar at Los Angeles Special-

ist Medical Management, he did not work for him at

Clinica Santa Maria.

The Provider argues that whether Dr. Herrera states

he was actually associated with Clinica Santa Maria is not

App. 56

important. The Provider contends that evidence pre-

sented by the Controller establishes that Dr. Herrerra was

in fact associated with this clinic, and this is confirmed by

statements made by medical personnel at the clinic to the

Controller auditors. Given these circumstances, the Pro-

vider had no basis or reason for concluding that Dr.

Herrera was “secretly” not associated with the clinic, anc

therefore, the Provider was required to perform those

tests ordered on the requisition sheets it received from

Clinica Santa Maria. As a consequence, since the Provider

is required to perform tests only at the written request of

an authorized person, and the Provider did so in the

present matter, the laboratory services must be deemed to

be covered Medi-Cal services even if Dr. Herrera testifies

now that he is not associated with the clinic.

VI

Title 22, California Code of Regulations, section

51311, entitled “Laboratory, Radiological and Radio-

isotope Services” provides in pertinent part:

“Examinations, tests . . . ordered by a licensed

practitioner, within his scope of practice . . . for

prevention, diagnosis and treatment of illness or

injury are covered... ”

In addition, section 51458.1 of those same regulations

provides:

“(a) The Department shall recover overpay-

ments to provider including, but not limited to,

payments determined to be:

ee ey ee ee ene

App. 57

(11) For services not ordered or prescribed,

when an order or prescription is required... . ”

The “written request . . . of an authorized person” is

required before laboratory tests can be performed. Title

42, Code of Federal Regulations, section 493.1105. This

request often times is in the form of a “test requisition

form.” To be valid, this form must meet certain require-

ments such as those set forth in the federal regulation.

Section 493.1105 provides that the test requisition should

contain the patient’s name; the name and address of the

authorized person requesting the test and, where applica-

ble, a contact person to enable the reporting of imminent

life-threatening laboratory results or panic values; the

tests to be performed; the date of specimen collection;

and any additional information relevant and necessary to

assure accurate and timely testing and reporting of test

results.

Exhibit 24 was presented, which relates to the first

sample patient under this finding. Exhibit 24 is a requisi-

tion form from Clinica Santa Maria. It contains a patient

name and address, the name, address, and telephone

number of the clinic, the date and time the specimen was

received by the lab, the tests requested to be performed,

but no name of the authorized person requesting the

tests. In addition, this exhibit contains a client identifica-

tion number which allegedly refers to the person authori-

zing the tests to be performed. There is no name of any

contact person in order to clarify the request, or to report

life-threatening laboratory results or panic values. Exhibit

25 presented for the second sample patient contained

exactly the same type of information reported as exhibit

24. _

App. 58

It is concluded that the name of the authorized per-

son requesting lab tests is required on the test requisition

form before a laboratory can perform those tests. A clinic

is not a physician. Requiring the name of the authorizing

physician to appear on the lab form protects both the

clinical laboratory and the requesting physician. It pro-

tects the clinical laboratory from subsequent claims that

the tests it performed were not requested or were not

requested by an authorized person. It protects the physi-

cian from false allegations by clinical laboratories that a

physician authorized requested tests. If the physician’s

name is not there, then that physician did not authorize

any tests to be performed.

In this case, the alleged requesting physician, who is

identified on the test requisition form only by a typed

client number and not by name, claims never to have

worked at the medical clinic, nor to have requested any

tests for any of the patients. In addition, this physician

claims never to have signed any comprehensive panel

agreement with the Provider. On the other hand, the

Provider claims to have an arrangement with this: physi-

cian who was given a client identification number. The

arrangement was that when the physician ordered a

Comprehensive Panel he meant a specific list of tests of

which the provider had knowledge. The Provider sup- |

plied the clinic with preprinted forms identifying the |

physician by a client identification number, and the clinic

by name and address.

A careful review of the documents submitted into

evidence which contain the physician’s signature was

conducted by the Administrative Law Judge, and he

found that the signatures on the comprehensive panel

lll

App. 59

agreement with the Provider and the application for

Medi-Cal provider number are not the signature of Dr.

Herrera. The Administrative Law Judge’s credibility find-

ing in this regard will not be disturbed.

The first question to be answered for this issue is not

whether Dr. Herrera did or did not request lab work from

the Provider, but whether, based upon the lab requisition

forms the Provider received from Clinica Santa Maria, the

Provider had any reason to believe that these requisitions

were valid requests for lab tests. On their face, the lab

requisitions appear to be valid requests for tests.

Although there is no name of the person authorizing the

tests, the Provider has been told by an independent con-

tractor that client ID # 183 is Dr. Herrera, who works at

Clinica Santa Maria.

During the course of the administrative hearing, evi-

dence was presented which established that the Provider

had agreements with four independent? contractors.

According to these agreements, each independent con-

tractor was assigned a territory where he or she would

create a place into operation a sales marketing plan, and

would be paid up to a 30 percent commission on the net

collected sales it brought into the Provider’s business

each month. For example, for each comprehensive panel

that was referred to the Provider, and subsequently paid

for, the independent contractors would receive anywhere

from $120.00 to $130.00. These independent contractors

3 This is the term used by the Provider. However, the record

reflects that one was the owner of a clinic that referred business

to the laboratory, and some were owners of the laboratory.

(Transcript 6-15-1998, p. 14; 6-16-1998, p. 128.)

App. 60

established the arrangements with referring physicians

and/or clinics, and set up the accounts with the Provider.

Once these arrangements were made, and the account set

up, the Provider’s couriers would pick up the specimens

from the clinics. The Provider would supply the physi-

cians and clinics with the preprinted lab requisition forms

with their client identifications number. When the Pro-

vider later received one of these forms, along with the

specimens, it would perform the requested tests, report

the findings back to the client, and bill Medi-Cal if appli-

cable.

It appears that the Provider is attempting to insulate

itself from. having any responsibility or obligation to ver-

ify the arrangements made by its independent contrac-

tors. It has created an incentive for its independent

contractors to bring in as much business as possible, yet

is trying to place itself in a situation where it can rely on

the arrangements made by the independent contractors,

receive payment for tests it performs, and not be respon-

sible if the tests it performs have never been requested by

an authorized physician, or if the alleged patient was

never seen by a physician or at a clinic. The Provider

cannot create the environment for potential dishonesty to

occur, but absolve itself of any responsibility by relying

on the word of the independent contractors. The Medi-

Cal program is not responsible for the error in judgment

or the bad business practices engaged in by the Provider.

4 These types of arrangements may be illegal (See People v.

Duz-Mor Diagnostic Laboratory, Inc. (1998) 68 Cal.App.4th 654),

but this argument was not raised during the course of the

administrative hearing.

App. 61

If the Provider wants to rely on the arrangements made

by the independent contractors without any further veri-

fication of their authenticity, then the Provider should be

prepared to suffer the consequences, i.e., to be found

liable for overpayments to the Medi-Cal program if the

independent contractor’s business proves inadequately

supported.

The appeal on this issue is denied.

VI

The next issue concerns finding #2 relating to specific

laboratory tests that were not ordered by the referring

physicians or were not performed.

The Controller contends that the Provider billed the

Medi-Cal program for laboratory tests that were in excess

of those ordered by the referring physicians, as well as

for some that were not performed by the laboratory. The

auditors analyzed the lab requisitions, the physician com-

prehensive panel agreements, and the test results, and

compared this information to the Provider’s billings to

the Medi-Cal program. The test results indicate whether a

test was performed or not. The test results, if any, were

then compared with what was paid to the Provider. The

Provider was paid, in many instances, for a test it did not

perform either because there are no test results for a lab

procedure that was paid for, or because the test results

show a “QNS” which means quantity was not sufficient

to run the test. In other instances, the physicians did not

order a specific test, yet the Provider was paid for per-

forming such a test.

App. 62

The parties agreed to present evidence on four sam-

ples under this finding. The first sample was # 53. This

sample relates to a hepatitis panel, a thyroid study and

several other tests that were paid for by Medi-Cal, but

when the test results are reviewed for that patient on that

date of service, there are no test results for a hepatitis

panel or thyroid study, etc., because of QNS. That is,

there was insufficient blood sample to run the tests. The

Controller’s auditor testified that she followed the same

process in the other three samples and the results were

the same, except that some tests billed for were never

ordered, while other tests were performed by another

laboratory.

The Provider is not entitled to payment for tests that

it did not perform for whatever reason, for tests per-

formed by another laboratory, or for tests never ordered.

(Title 22, Cal. Code Regs. §51458.1(4).) The appeal on this

issue is denied.

VIII

The next issue involves finding #3 which deals with

services not provided to the claimed beneficiary. This

issue will be discussed below, together with finding #2 of

audit #2, which presents the same reason for the overpay-

ment demand.

IX

The next issue relates to finding #4 which deals with

tests that were never ordered by a physician.

App. 63

The Controller contends that the Provider billed

Medi-Cal for laboratory tests that were not supported by

the referring physician’s medical records. In two cases,

the physician medical records disclosed that the labora-

tory tests were never ordered for the dates of service in

question.

For the first sample, exhibits 64 and 65 were

reviewed. The auditor compared the lab requisition form

of the Provider with the medical records of the physician

for the patient for which the lab tests were performed.

The lab requisition indicated a specific date of service

while the medical records for that patient on that same

date do not indicate any visit by the patient to the physi-

cian. The medical chart also does not indicate that any

tests were ordered on that specific date nor does the

patient chart contain any test results relating to that date.

In addition, other documents indicate that one of the

patients in question was actually incarcerated during the

entire time period covered by the audit, and remained in ©

custody as of June 11, 1998. Although this evidence is

hearsay, it may be used to corroborate the direct testi-

mony of the auditor.

A careful review of exhibit 64, relating to the first

sample, indicates that this is a lab test request from client

#250, FHC Medical Center. Client #250 is Dr. Malabanan,

who works at FHC Medical Center. This lab request indi-

cates a comprehensive panel 1 should be performed.

Exhibit 12 introduced by the Controller indicates that Dr.

Malabanan worked for FHC Medical Center, and did

have a valid agreement with the Provider regarding com-

prehensive/master panels. Lab results from the tests per-

formed by the Provider are included in exhibit 64.

App. 64

The next sample involves exhibits 62, 63, and 97.

Again, the lab requisition is from client #250, Dr. Mal-

abanan, and requests that a comprehensive panel 1 be

performed. The test results are included in this exhibit.

The lab request (exhibit 62) was compared with the medi-

cal chart (exhibit 63) for the specific patient and date of

service in question. Again it was found that the patient

chart indicates that: 1) the patient was not seen by the

doctor on the date in question, 2) there were no lab tests

ordered by the physician for the date in question, and 3)

no test results were found in the patient medical chart for

that date of service. Exhibit 97 is the signed statement of

the Medi-Cal beneficiary that she did not have blood

drawn from any physician in the last few years, and has

never lived at the address indicated on exhibit 62.

In connection with these sample cases, the Provider

had in its files what appeared to be valid lab requisitions

from a physician with whom it had a valid agreement.

The lab requisitions requested the Provider to perform

the indicated test panels. The Provider performed the

tests and the test results are included in the exhibits.

The Controller disallowed both of these examples on

the basis that the tests were never ordered by the physi-

cian. The evidence supports this conclusion. The physi-

cian’s file was devoid of any evidence that anyone had

been seen in connection with the laboratory requests at

issue, there was no evidence the services had been

ordered, and there was no evidence the results had been

received. The Provider failed to rebut the prima facie case

made by this absence of any support for its documents.

App. 65

In addition, the Controller has made the case that no

Medi-Cal beneficiary received the services in question,

since there was no evidence that the patient was seen or

had blood drawn on the date in question.

Where there is no evidence that the physician who

supposedly ordered the laboratory test saw the benefici-

ary-patient, and no evidence that he ordered the tests at

issue, the Medi-Cal program is not required to pay for

tests of which only the Provider has any documentation.

As has been discussed above, the requirement to pay for

laboratory services is conditioned on the existence of a

valid order from a person authorized to make one. As is

further discussed below, it is also conditioned on the

receipt of the service by a Medi-Cal beneficiary. Neither

was proven to exist in these cases. The appeal is denied

as to this finding.

X

The next issue deals with audit #2, finding #1 which

is similar to finding #2 of the first audit, i.e. test were not

ordered by the referring physician or were not per-

formed. Two samples were presented on this issue.

Dr. Dix was called as a witness by the Controller and

he testified regarding this specific finding. Exhibit 69 is

his signed statement. Dr. Dix testified that he worked for

Divine Health Care which was primarily a personal

injury clinic. Due to his patients’ conditions he would

only order a CBC and electrolytes, and generally would

not order any comprehensive panels for any of his

patients. He would usually just prescribe physical ther-

apy for his patients. While working at Divine Health Care

App. 66

he ordered fewer than five lab tests, and to his knowl-

edge he has not referred any lab work to the Provider.

The Controller submitted exhibits 69. 70, and 71 with

respect to the first sample. Exhibit 70 is the lab requisition

from Divine Health Care, and this form contains the

name of Dr. Dix. The requisition requests that a compre-

hensive panel be done. The Provider performed the tests,

and the results are contained in the exhibit. The Control-

ler disallowed all tests of this sample because they were

not ordered by Dr. Dix.

With respect to his first sample, it is the determina-

tion of this tribunal that the appeal must be denied. The

Provider did not have a comprehensive panel agreement

with Dr. Dix, who was the medical director of Divine

Health care. Therefore, when the Provider received this

lab requisition from Dr. Dix requesting a comprehensive

panel, it should have contacted Dr. Dix to clarify what

tests he wanted performed. Instead, the Provider relied

upon an agreement it had with a Dr. Adhami, who was

somehow allegedly associated with Divine Health Care,

and performed the tests he and the Provider had agreed

to. Dr. Dix testified that he did not know a Dr. Adhami.

The Provider performed tests that were not ordered by

the referring physician. As a consequence, the appeal on

this sample must be denied.

Exhibits 72, 73, and 74 were submitted regarding the

second sample. Dr. Hsu, the referring physician in this

sample, does not have an agreement with the Provider,

but does use the Provider. He will only order specific

tests. The Controller’s review of the patient chart, the lab

requisition, and the lab results indicated that the Provider

LSM Apes £07) Wa Least 8

App. 67

billed for tests that were not ordered by the physician,

and not performed by the Provider. The evidence submit-

ted supports the conclusion of the Controller on this

sample item. The Provider was paid for tests that were

not ordered or were not performed. The appeal on this

sample is denied.

As the appeals on both samples were denied, the

appeal on this entire issue must be denied.

XI

The last issue deals with finding #2 of audit #2 which

is the same as finding #3 in audit #1. The Controller

contends that the Provider billed Medi-Cal for services

that were not provided to the beneficiaries indicated on

the Provider’s laboratory requisition forms. In connection

with the first audit period, eight beneficiaries were inter-

viewed by the Controller’s auditors and they all signed

statements that they had never been to nor received

medical services from the medical clinics that were desig-

nated on the Provider’s lab requisitions. In addition, they

all stated that they had never lived at the addresses

indicated on the lab requisitions. Exhibit 39 lists the eight

Medi-Cal beneficiaries that were interviewed and they

were designated as sample #’s 102, 104, 98, 57, 47, 110,

106, and 100. In connection with the second audit period,

four beneficiaries were interviewed by the Controller’s

auditors and all four said they did not receive the medical

services in question.

The Controller disallowed all of the services associ-

ated with these samples because they were never pro-

vided to the named beneficiaries. In some cases, there is

App. 68

evidence that the service was provided to a patient, but

that patient was someone other than the person whose

Medi-Cal number appeared on the billing. The Controller

argues that the Provider may not bill Medi-Cal for these

services pursuant to title 22, California Code of Regula-

tions, section 51470, which provides that:

“(a) A provider shal! not bill or submit a claim

to the Department . . . for Medi-Cal benefits not

provided to a Medi-Cal beneficiary. ... ”

The Controller states that the regulation is clear and

unambiguous, not subject to any exception for providers

who do not personally deal with program beneficiaries.

Provider argues that it is not responsible for verify-

ing that a Medi-Cal beneficiary was actually seen at a

clinic or by a specific physician. The Provider should be

allowed to rely, it argues, on the physician order forms

requesting the performance of certain tests, because it has

no way of knowing whether a Medi-Cal beneficiary was

seen at a clinic or by a physician. The Provider’s position

is that section 51470 may not be applied to deny payment

to a provider who has no personal contact with the bene-

ficiary, and has no obligation to verify the beneficiary’s

identity.

Input was received from the Department on this

issue. The Department likened the laboratory requisition

for services which did not benefit any program benefici-

ary to a forged instrument of title or counterfeit currency.

The innocent> holder in due course of the inherently

> The Controller did not rule out the possibility that these

cases involved beneficiary fraud, where neither the clinic nor

cette Sn PER nie Tees erat.

Becht Siars Ratan yes

App. 69 “

worthless paper has recourse only against the person

from whom he obtained it. He cannot force another

equally innocent party (e.g., a bank) to accept it as having

value, once its valueless nature is discovered.

The regulation at issue is a part of the Department's

effort to comply with federal requirements related to the

Medi-Cal program. Section 1903(a)(1) of the Social Secu-

rity Act (codified at 42 U.S.C.A. § 1396b(a)(1)) specifies

that a state may receive federal funds for program bene-

fits to the extent they constituted “medical assistance

under the State plan.” Section 1903(u) (42 U.S.C.A.

§ 1396b(u)) requires a denial of federal sharing in “erro-

neous excess payments” (erroneous payments above a

tolerance level for error) made by a state Medicaid

agency. One of the two definitions of the term “erroneous

excess payments” is “payments under the State plan with

respect to ineligible individuals and families.”

This requirement is echoed in title 42, Code of Fed-

eral Regulations, section 431.812(d), which specifies that,

as part of its quality control effort, the state Medicaid

agency must “identify erroneous payments resulting

from — (1) Ineligibility for Medicaid.”

From reviewing this basic federai requirement that

all Medicaid expenditures must be for covered services to

eligible beneficiaries, no exception appears for services

rendered in erroneous reliance on a referring provider's

false information concerning the issue of whether a cov-

ered, eligible beneficiary was in fact the subject of the

the laboratory was aware that the patient was not the

beneficiary, so this is one possible explanation.

App. 70

referred service. The federal definitions of proper and

erroneous Medicaid expenditures are as straightforward

as the state regulation at title 22, California Code of

Regulations, section 51470. It therefore appears that the

Controller’s interpretation of section 51470 as an absolute

prohibition of payment is correct.® Similarly, the Depart-

ment’s input correctly states that the laboratory's posi-

tion, in the event that it is a totally innocent recipient of a

requisition for services that will not benefit a legitimate,

eligible individual, is like that of the person who tries to

put a counterfeit $100 bill in his bank account. It is not

the fault of the bank that the bill is worthless, and the

bank owes the depositor no compensation. Just so, the

Medicaid agency, having received nothing of value (and

nothing which may be paid for with federal funds), owes

the Provider no compensation for a service to a person

who is not eligible for benefits.

XII

Once it has been determined that the Provider may

not be reimbursed with Medi-Cal funds for a service not

rendered to an eligible Medi-Cal beneficiary, the question

becomes one of whether the Controller met its burden of

proving that this lack of an eligible patient occurred in

the sample cases at issue. The issue must be proven

through competent direct evidence, because the

6 Although there are Medi-Cal services which are not

subject to federal sharing, and thus would not be found by

federal requirements, there has been no suggestion that this is

true of any of the services at issue in this case.

‘

:

CNA Sak al 8 call a aN hilt its sir dling

App. 71

Provider’s counsel objected to the use of hearsay to sup-

port any finding (Government Code § 11513(d)).

Of the twelve cases the Controller presented on this

issue, only hearsay was presented on eight. The appeal

must be granted to the extent the Overpayment deter-

mination rests on the eight sample cases unsupported by

direct evidence.

The beneficiary testified in each of the other four

cases.

The first beneficiary who testified (relating to case

#137) was C.L. (Transcript 6-15-98, Pp. 96 et seq.). C.L.

credibly testified that she did not visit the physician who

supposedly ordered laboratory tests on her behalf, nor

did she receive any medical care at the clinic in question

on the date in question. She also testified that she does

not live, and has not lived, at the address shown on the

laboratory requisition.

Beneficiary S.S. then testified relating to case #100

(Transcript 6-15-98, pp. 102 et seq.). S.S. attempted to

testify that she did not receive the services in question,

but her testimony is somewhat confusing and unclear due

to her limited command of English and her illiteracy.

The third witness, A.L., testified in relation to case #

97 (Transcript 6-15-98, pp. 110 et seq.). This witness credi-

bly testified that she did not receive any medical services

through the physician who allegedly ordered laboratory

services on her behalf, and did not go to the clinic where

the physician allegedly did so. She also testified that she

has never lived at the address attributed to her on the

laboratory requisition.

App. 72

The fourth witness, S.C., attempted to testify in sup-

port of the Controller’s case # 110 (Transcript 6-15-98, pp.

117 et seq.). However, the Administrative Law Judge

found that S.C did not have sufficient command of the

English language to testify without an interpreter.”

It is concluded that the Controller presented suffi-

cient evidence to prevail on cases 137 and 57. C.L. and

A.L. both testified with sufficient clarity and credibility to

support the allegation that they did not receive the ser-

vices at issue. No evidence was presented to show that

any other eligible beneficiary received them in their

stead. Because the evidence presented in support of cases

100 and 110 was not sufficient, the appeal is granted as to

the portion of the overpayment represented by those

cases.

ORDER

The Office of the State Controller has the authority to

audit Medi-Cal providers, and may use probability sam-

pling to extrapolate the amount to be recovered from the

Provider.

The Provider’s appeal is granted in part as to Issues

#5 and #8. As to those issues, the appeal is denied as to

that portion of the overpayment determination which is

supported by direct testimony, and granted in the

remainder. The controller is directed to recalculate that

7 The Controller made a late request for an interpreter, but

one could not be secured in the time remaining before the

hearing.

App. 73

portion of the overpayment determination consistent

with the substance of this Decision.

The appeal is denied in all other respects.

The Controller is also ordered to recalculate the over-

payment to the Provider consistent with the views

expressed in this Decision by using the lower limit of the

95 percent confidence interval.

Pursuant to the authority duly vested in me, I hereby

adopt the foregoing as the Final Decision of the Depart-

ment of Health Services.

This Final Decision is signed on August 6, 1999 and

shall be effective immediately.

/s/ Joseph P. Munso

Joseph P. Munso

Chief Deputy Director

“as

App. /4

IN THE COURT OF APPEAL OF THE

STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

JOSEPH A. LANE, CLERK

DIVISION 5

Los Angeles County Superior Court

111 North Hill Street

Los Angeles, CA 90012

RC] Medical Services, Inc

¥

The Director of the State Department of

Health Services

B143160

Los Angeles County No. BS060056

***REMITTITUR***

I, Joseph A. Lane, Clerk of the Court of Appeal of the

State of California, for the Second Appellate District, do

hereby certify that the attached is a true and correct copy

of the original

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