State of North Carolina s145

STATE OF NORTH CAROLINA

COUNTY OF GUILFORD

IN THE OFFICE OF

ADMINISTRATIVE HEARINGS

09 DHR 1413

Genesis Family Health Care Inc

c/o James Collins

Petitioner,

N.C. Department of Health and Human Services, Division of Medical Assistance

Respondent.

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DECISION

This matter was heard by the undersigned Administrative Law Judge on June 24, 2009, in High Point upon the parties’ cross motions for summary judgment. It appeared to the Court, upon the affidavits and other materials submitted by the parties; and the arguments and the authorities and supplemental briefings presented by counsel, that there is no genuine issue as to any material fact and that summary judgment should be allowed as a matter of law for Respondent.

FINDINGS OF FACT

1. Petitioner entered into a Medicaid provider agreement on July 3, 2000, and was authorized to bill Respondent for the provision of personal care services to Medicaid recipients. Petitioner agreed to comply with federal and state laws, regulations, state reimbursement plan, and policies governing the services authorized under the Medicaid Program, including Medicaid provider manuals and bulletins. Petitioner also agreed that Respondent may recover overpayments due to error of the provider. Flowers Affidavit Exhibit A, Medicaid Participation Agreement.

2. Pursuant to Division of Medical Assistance Clinical Coverage Policy No. 3C, Section 7.7, personal care services must be provided under a plan of care based on an R.N. assessment and “certified as needed by the primary physician”. The plan of care includes the “days of the week the in-home aide is needed to provide care for the recipient, the tasks to be performed by the in-home aide on each day, and the estimated time needed each day to accomplish the tasks assigned for that day. No range of hours can be used on the plan of care”. Flowers Affidavit Exhibit B, Clinical Coverage Policy 3C.

3. In addition to the Policy requirement, the PACT form itself directs the provider to fill in the time column with the total time needed each day. Flowers Affidavit Exhibit F, 2 Sample Plans of Care.

4. Petitioner knew or should have known of the requirement to include the time needed each day to accomplish the tasks assigned for that day because in 2005, Respondent recouped $39,839.04 from Petitioner for incomplete plans of care. Certified Copy of Notice of Decision dated January 18, 2005.

5. Pursuant to Division of Medical Assistance Clinical Coverage Policy No. 3C, Section 7.4.1, effective November 1, 2005, the provider is required to use the Physician Authorization for Certification and Treatment Form available on the Respondent’s Web site. As of November 1, 2005, Clinical Coverage Policy No. 3C, Section 7.4.1 provides “Providers must obtain the PCS PACT (physician authorization for certification and treatment) Form from the DMA Web site. It is mandatory that providers use this form. The form and additional instructions for completing the form are available on the DMA Web site . . . .” Flowers Affidavit Exhibit B. Petitioner used the improper PACT form. The Petitioner failed to obtain the PACT form from the web site as evidenced by the fact that the provider used several different outdated versions of the DMA-3000 PACT form. Flowers Affidavit Exhibit F.

6. Respondent performed an administrative post payment review of Petitioner’s supporting documentation for claims submitted for dates of service 7/1/2006 through 12/31/2006; and identified overpayments on the basis that Petitioner billed for personal care services without having the physician’s authorization for the number of hours billed, and that Petitioner used the wrong PACT and patient assessment forms. The amount of the overpayment was $55,884.84, and the overpayment extrapolated to the population of sampled claims was $280,980.28. At the time of the audit, Petitioner had billed Respondent for 77 recipients. Respondent reviewed an actual sample of 57 recipients. Of those, all were on the incorrect PACT form, 45 plans of care did not contain the number of hours authorized by the ordering physician, and plans of care for 3 patients were missing. Pursuant to 10A NCAC 22F.0606, Respondent used a Disproportionate Stratified Random Sampling Technique to establish the amount of the overpayment. Flowers Affidavit Exhibit D.

7. The physician who signs the plan of care authorizes the number of hours that the provider can provide and subsequently bill to Medicaid. The physician’s intent is signified by filling in the number of hours on the PACT form. It is not credible that each patient served by Petitioner required the maximum number of hours of personal care services that Medicaid would cover. Likewise, it is not credible to assume that each physician who signed the 45 plans of care with the hours left blank relied upon medical coverage policy external to the PACT form to convey his or her intent for Petitioner to bill Respondent for the maximum number of hours possible. The role of the physician in specifically ordering services ensures that the provider has the requisite authorization to obtain payment from Medicaid. The absence of this physician oversight created a blank check for Petitioner to provide the maximum number of hours possible for each patient it served.

8. Respondent’s recoupment is based upon immutable facts grounded in plans of care created and maintained by Petitioner. Petitioner billed Respondent for personal care services rendered according to incomplete plans of care that did not include the number of hours authorized by the ordering physician, and used the wrong PACT form contrary to duly promulgated DMA medical coverage policy.

CONCLUSIONS OF LAW

1. Jurisdiction is properly before the Office of Administrative Hearings.

2. Pursuant to N.C.G.S. § 150B-36(d), summary judgment may be granted on the pleadings pursuant to a motion made in accordance with N.C.G.S. 1A-1, Rule 56, that disposes of all issues in the contested case.

3. Petitioner and Respondent moved for summary judgment on the basis there was no genuine issue of a material fact in accordance with N.C.G.S. § 1A-1, Rule 56. The motions dispose of all issues in this contested case.

4. Summary judgment is proper where “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law.” N.C.G.S. § 1A-1, Rule 56.

5. Pursuant to N.C.G.S. § 108A-54.2, Respondent promulgated medical coverage policy regarding personal care services and codified it in Division of Medical Assistance Clinical Coverage Policy No. 3C. Section 7.7 provides that personal care services must be provided under a plan of care based on an R.N. assessment and “certified as needed by the primary physician”. The plan of care includes the “days of the week the in-home aide is needed to provide care for the recipient, the tasks to be performed by the in-home aide on each day, and the estimated time needed each day to accomplish the tasks assigned for that day. No range of hours can be used on the plan of care.” Clinical Coverage Policy 3C, Sec. 7.7.

6. Section 7.8.1 of Clinical Coverage Policy 3C requires a revision to the Plan of Care if there is a significant change in the Plan of Care as defined as an increase or decrease of 60 minutes or more per week in the total weekly assigned time. Petitioner cannot comply with Section 7.8.1 of the policy in that the plans of care contain no authorized baseline of hours per week authorized by the physician.

7. Application of Respondent’s duly promulgated medical coverage policy requiring the physician’s authorization of the time needed each day to perform personal care services, to the blank plans of care maintained by Petitioner, compels the conclusion that Petitioner is in violation of its Medicaid Provider Agreement and medical coverage policy.

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8. The goal of summary judgment is to allow penetration of an unfounded claim or defense before trial. Asheville Contracting Co. v. City of Wilson, 62 N.C. App. 329, 303 S.E.2d 365 (1983). Petitioner’s objection to the recoupment is grounded in equity, not law. Petitioner’s equitable defense is unfounded. Petitioner has not met its burden to show it is entitled to judgment as a matter of law.

9. Respondent properly applied Division of Medical Assistance Clinical Coverage Policy No. 3C and appropriately initiated recoupment of $280,980.28 from Petitioner.

BASED UPON the foregoing Findings of Fact and Conclusions of Law, the Undersigned makes the following:

DECISION

There is sufficient evidence in the record to properly and lawfully support the Conclusions of Law cited above. Based on those conclusions and the facts in this case, it is the decision of the Undersigned that Respondent is entitled to summary judgment as a matter of law. The decision of the Respondent is hereby AFFIRMED. Summary judgment for the Petitioner is DENIED.

NOTICE

The decision of the Administrative Law Judge in this contested case will be reviewed by the agency making the final decision according to the standards found in G.S. 150B 36(b), (b1) and (b2). The agency making the final decision is required to give each party an opportunity to file exceptions to the decision of the Administrative Law Judge and to present written arguments to those in the agency who will make the final decision. G.S. 150B-36(a). The agency that will make the final decision in this contested case is the North Carolina Department of Health and Human Services.

IT IS SO ORDERED.

This the 18th day of August, 2009.

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J. Randall May

Administrative Law Judge

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