Div. Of Med. Assistance v. Parker Home Care

IN THE COURT OF APPEALS OF NORTH CAROLINA

Nos. COA15-1026 and 15-1033

Filed: 5 April 2016

Stanly County, Nos. 14 CVS 1038 and 14 CVS 1039

N.C. DEPARTMENT OF HEALTH AND HUMAN SERVICES, DIVISION OF
MEDICAL ASSISTANCE, Petitioner,

v.

PARKER HOME CARE, LLC, Respondent,

and

DIVISION OF MEDICAL ASSISTANCE, N.C. DEPARTMENT OF HEALTH and
HUMAN SERVICES, Petitioner,

v.

PARKER HOME CARE, LLC, Respondent.

Appeal by petitioner from orders entered 23 March 2015 by Judge Theodore S.

Royster in Stanly County Superior Court. Heard in the Court of Appeals 9 February

2016.

Attorney General Roy Cooper, by Special Deputy Attorney General Michael T.
Wood, for the State in Case No. COA 15-1026.

Attorney General Roy Cooper, by Assistant Attorney General Brenda Eaddy, for
the State in Case No. COA 15-1033.

Parker Poe Adams & Bernstein LLP, by Matthew W. Wolfe and Varsha D.
Gadani, for respondent-appellee.

ZACHARY, Judge.
 N.C. DEP'T OF HEALTH & HUM. SERVS. V. PARKER HOME CARE, LLC
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Opinion of the Court

The North Carolina Department of Health and Human Services (appellant,

hereafter “DHHS”), appeals from orders denying its petitions for judicial review of

orders entered by the North Carolina Office of Administrative Hearings (OAH). Upon

careful review, we conclude that the trial court’s orders should be affirmed.

Introduction

“Medicaid is a federal program that subsidizes the States’ provision of medical

services to . . . ‘individuals, whose income and resources are insufficient to meet the

costs of necessary medical services.’ [42 U.S.C.A.] §1396-1.” Armstrong v. Exceptional

Child Ctr., Inc., __ U.S. __, __, 135 S. Ct. 1378, 1382, 191 L. Ed. 2d 471, 476 (2015).

“Medicaid offers the States a bargain: Congress provides federal funds in exchange

for the States’ agreement to spend them in accordance with congressionally imposed

conditions.” Id. Pursuant to certain federal requirements, discussed in detail below,

DHHS entered into a contract with Public Consulting Group (PCG), a private

company, for the purpose of having PCG conduct post-payment audits of Medicaid

claims payments to health care providers. Parker Home Care, LLC (Parker) is a

provider of health care services, including services for which it receives

reimbursement from Medicaid funding. In both of the cases on appeal, PCG conducted

an audit of a small fraction of Parker’s Medicaid claims, found what it determined to

be Medicaid overpayments to Parker, and mathematically extrapolated the results of

its audit to reach the “tentative” determination that Parker “owed” DHHS a much

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larger sum. In each case, PCG sent Parker a letter (hereafter a “TNO”) with the

heading “TENTATIVE NOTICE OF OVERPAYMENT,” setting out the results of its

audit and informing Parker of its right to appeal the tentative results of PCG’s audit.

Several months later, DHHS suspended Parker’s Medicaid reimbursement payments

on unrelated claims in order to satisfy Parker’s “debt” to DHHS as calculated by PCG

based on the results of PCG’s audit. Parker then sought a reconsideration review of

DHHS’s decision to suspend payments. DHHS refused to grant Parker a

reconsideration review, on the grounds that Parker had failed to note an appeal from

the TNO sent by PCG within the time limits applicable to contested case hearings

before the OAH. Parker petitioned for a contested case hearing with the OAH, which

ruled in favor of Parker. DHHS sought judicial review in Stanley County Superior

Court, which also ruled for Parker.

During this litigation, DHHS has relied exclusively upon its argument that the

TNO issued by PCG constituted notice of an adverse determination or final decision

by DHHS and, as such, triggered the time limits for noting an appeal to the OAH.

DHHS contends that, because Parker did not note an appeal from the TNO sent by

PCG, neither the OAH nor the superior court had subject matter jurisdiction over

Parker’s appeal. As a result, the dispositive question before this Court is whether

the TNO mailed by PCG to Parker was notice of a final decision by DHHS, such that

the time limits for appealing from an adverse determination by DHHS started to run

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Opinion of the Court

when Parker received the TNO. After careful review of the applicable state and

federal laws, regulations, and relevant jurisprudence, we conclude that the TNO did

not constitute notice of a final decision by DHHS, that the OAH and the trial court

had jurisdiction, and that the trial court’s orders should be affirmed.

I. Background

A. Appellate Case No. COA 15-1026

On 16 May 2012, Parker received a TNO from PCG, informing it that PCG had

conducted a post-payment review of a small number of Parker’s past Medicaid claims

and determined that Parker had been overpaid by $3,724.08. PCG mathematically

extrapolated this finding and arrived at a “tentative overpayment amount” of

$391,797.00. Parker did not respond to the TNO. In January 2014, DHHS suspended

payment of all Medicaid claims from Parker in order to satisfy Parker’s “debt” of

$391,797.00. DHHS refused to grant Parker’s request for a reconsideration review of

the agency’s decision to withhold payments to Parker, on the grounds that Parker

had failed to “appeal” from the TNO in a timely manner.

On 31 January 2014, Parker filed a petition for a contested case hearing with

the OAH. On 7 February 2014, Administrative Law Judge (“ALJ”) Melissa Owens

Lassiter granted Parker’s motion for a temporary restraining order barring DHHS

from “withholding or recouping funds from [Parker’s] Medicaid payments.” On 19

February 2014, DHHS made an oral motion to dismiss Parker’s petition for lack of

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Opinion of the Court

subject matter jurisdiction, which was denied by ALJ Lassiter in an order entered 17

March 2014.

On 30 July 2014, a contested case hearing on this case and the companion case

discussed below was conducted before ALJ J. Randolph Ward. At this hearing, DHHS

presented no evidence on the substantive issue of Parker’s alleged receipt of

overpayments from Medicaid, but relied exclusively on its defense that the OAH

lacked subject matter jurisdiction to hear the matter. On 7 October 2014, ALJ Ward

issued a final decision denying DHHS’s motion to dismiss and holding that “PCG did

not have authority to act in place of the agency in the context of statutorily required

steps towards a decision from which the Petitioner would need to contest with an

appeal to OAH.” In his order, ALJ Ward granted Parker’s motion for directed verdict,

ruling that because DHHS had offered no evidence, Parker was entitled to judgment

as a matter of law. ALJ Ward ordered that “[DHHS’s] decision to withhold funds

alleged to be due in the “Tentative Notice of Overpayment” dated May 4, 2012,

prepared by [DHHS’s] contractor Public Consulting Group, . . . must be REVERSED”

and that “[DHHS] is permanently enjoined from withholding any of the referenced

funds[.]” On 9 October 2014, the OAH issued an amended final decision adding

information about exhibits introduced at the hearing. DHHS filed a petition for

judicial review of the OAH’s final decision on 5 November 2014.

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On 9 March 2015, the trial court conducted a combined hearing on DHHS’s

petitions for judicial review of the OAH’s final decision in this case and in the

companion case, discussed below. DHHS again relied solely on its defense of lack of

subject matter jurisdiction, and did not offer evidence on any substantive issue. On

23 March 2015, the trial court entered an order affirming the OAH’s final decision.

DHHS entered timely notice of appeal to this Court.

B. Appellate Case No. COA 15-1033

On 15 December 2011, Parker was sent a TNO from PCG, informing Parker

that PCG had conducted a post-payment review of a small percentage of Parker’s past

Medicaid claims and had tentatively identified improperly paid claims in the amount

of $7,908.24. PCG extrapolated this result and reached a tentative determination

that Parker owed a total of $594,741.00 to DHHS. Parker did not respond to the

TNO. In October 2012, DHHS began withholding payment of all Medicaid claims to

Parker in order to satisfy Parker’s $594,741.00 “debt” to DHHS. On 17 October 2012,

DHHS denied Parker’s request for a reconsideration review of the alleged

overpayment. On 3 December 2012, Parker filed a petition for a contested case

hearing before the OAH. DHHS moved to dismiss Parker’s petition for a contested

case hearing, on the grounds that the OAH lacked subject matter jurisdiction over

the matter because Parker had failed to appeal from the TNO within the time limits

for appealing an adverse determination by DHHS.

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On 14 December 2012, ALJ Beecher R. Gray entered an order denying DHHS’s

motion to dismiss Parker’s petition and enjoining DHHS from further withholding of

Parker’s Medicaid claims payments. On 24 January 2013, DHHS filed a petition in

superior court for “writs of certiorari, prohibition, and mandamus” to stay the effect

of ALJ Gray’s order. On 27 February 2013, Judge Reuben F. Young entered an order

denying DHHS’s petition. A contested case hearing on this case and the companion

case discussed above was conducted before ALJ Ward on 30 July 2014. DHHS did

not offer evidence on the substantive issues, but relied only on its defense of lack of

subject matter jurisdiction. On 6 October 2014, ALJ Ward issued a final decision

denying DHHS’s motion to dismiss Parker’s petition for lack of subject matter

jurisdiction, entering a directed verdict for Parker, and ordering that “[DHHS’s]

decision to withhold funds alleged to be due in the “Tentative Notice of Overpayment”

dated December 15, 2011, prepared by [DHHS’s] contractor Public Consulting Group

. . . must be REVERSED” and that “Respondent is permanently enjoined from

withholding any of the referenced funds[.]”

DHHS sought judicial review of the OAH’s final decision, and a hearing was

conducted before the trial court in this case and the companion case on 9 March 2015.

On 23 March 2015, the trial court entered an order affirming the OAH’s final decision.

DHHS has appealed to this Court.

II. Consolidation of Cases

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Opinion of the Court

In each of the two cases before us, DHHS is the appellant and Parker is the

appellee. In each case, (1) Parker took no immediate action in response to a TNO it

received from PCG; (2) when Parker learned, many months later, that DHHS was

withholding payment of Parker’s Medicaid claims in reliance upon the results of

PCG’s audit, Parker sought review of the decision to withhold funds; (3) DHHS

refused to review or reconsider its decision and, (4) DHHS relied on the defense that

neither the OAH nor the trial court had subject matter jurisdiction because Parker

had not appealed from the TNO letter within the time limits set by the

Administrative Procedure Act (APA) for appeal to the OAH. Both cases present the

same fundamental issue, which is whether the TNO constituted notice of a final

decision by DHHS that triggered the time limits for appeal to the OAH. The

resolution of each case requires analysis of the same state and federal statutes and

regulations, and neither case requires the resolution of disputed issues of fact. In

addition, the cases were consolidated before the ALJ who issued the final decision in

both cases, and also before the trial court. During the hearing before the trial court,

DHHS acknowledged that in both cases “the underlying legal argument for the Court

is the same.” Because “both appeals involve common questions of law” the Court has

consolidated “these appeals for the purpose of rendering a single opinion on all issues

properly before the Court.” Putman v. Alexander, 194 N.C. App. 578, 580, 670 S.E.2d

610, 613 (2009).

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III. Standard of Review

“For questions of subject matter jurisdiction, the standard of review is de

novo[.]” Harper v. City of Asheville, 160 N.C. App. 209, 213, 585 S.E.2d 240, 243 (2003)

(citation omitted). “ ‘Under a de novo review, the court considers the matter anew

and freely substitutes its own judgment for that of the lower tribunal.’ ” Fields v.

H&E Equipment Services, LLC, __ N.C. App. __, __, 771 S.E.2d 791, 793-94 (2015)

(quoting State v. Williams, 362 N.C. 628, 632-33, 669 S.E.2d 290, 294 (2008)).

Moreover, “[w]here a trial court has reached the correct result, the judgment will not

be disturbed on appeal even where a different reason is assigned to the decision.”

Eways v. Governor’s Island, 326 N.C. 552, 554, 391 S.E.2d 182, 183 (1990) (citing

Shore v. Brown, 324 N.C. 427, 378 S.E.2d 778 (1989), and Sanitary District v. Lenoir,

249 N.C. 96, 99, 105 S.E.2d 411, 413 (1958)) (other citation omitted). Thus, “ ‘a trial

court’s ruling must be upheld if it is correct upon any theory of law[,] and . . . should

not be set aside merely because the court gives a wrong or insufficient reason for [it].’ ”

Templeton v. Town of Boone, 208 N.C. App. 50, 54, 701 S.E.2d 709, 712 (2010) (quoting

Opsahl v. Pinehurst Inc., 81 N.C. App. 56, 63, 344 S.E.2d 68, 73 (1986), disc. review

improvidently allowed, 319 N.C. 222, 353 S.E.2d 400 (1987)). In this case, we

conclude that the ALJs and the trial court correctly ruled that each had subject

matter jurisdiction over this matter. Accordingly, we uphold the trial court’s orders

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affirming the orders of the ALJs without regard to the merits of the reasons cited in

the trial court’s orders or the interlocutory orders issued by the ALJs.

IV. Legal Principles

A. Federal Statutes and Regulations

Federal law establishes certain requirements to which a state’s Medicaid

program must adhere. “The federal and state governments share the cost of Medicaid,

but each state government administers its own Medicaid plan. State Medicaid plans

must, however, comply with applicable federal law and regulations. See 42 U.S.C. §

1396c; 42 C.F.R. § 430.0.” Shakhnes v. Berlin, 689 F.3d 244, 247 (2nd Cir. 2012), cert.

denied, __ U.S. __, 133 S. Ct. 1808, 185 L. Ed. 2d 812 (2013). For the purposes of this

appeal, the most significant of these requirements are the regulations that (1) require

a state to designate a single state agency to administer its Medicaid program, (2) limit

the circumstances in which that single state agency may delegate its responsibility

for administration of the state’s Medicaid program, and (3) direct the states to

establish a system to ensure the integrity of the state’s Medicaid program.

1. Single State Agency

42 U.S.C.A. § 1396a(a)(5) states in relevant part that a state Medicaid program

“must . . . provide for the establishment or designation of a single State agency to

administer or to supervise the administration of the plan[.]”

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At the heart of our inquiry is Congress’ pronouncement
that each state must “provide for the establishment or
designation of a single State agency to administer or to
supervise the administration” of its Medicaid program, 42
U.S.C. § 1396a(a)(5), a command we shall refer to as the
‘single state agency requirement.’ . . . [T]he single state
agency requirement . . . ensures that final authority to
make the many complex decisions governing a state’s
Medicaid program is vested in one (and only one) agency.
The requirement thereby avoids the disarray that would
result if multiple state or even local entities were free to
render conflicting determinations about the rights and
obligations of beneficiaries and providers.

K.C. v. Shipman, 716 F.3d 107, 112 (4th Cir. 2013). In addition, 42 C.F.R.

431.10(b)(1) specifies that a “State plan must” “(1) Specify a single State agency

established or designated to administer or supervise the administration of the plan[.]”

2. Limits on Delegation of Authority

Implicit in the single state agency rule is the corollary requirement that only

that agency may administer a state’s Medicaid program. In this regard, 42 C.F.R.

431.10(e) specifically provides that “[t]he Medicaid agency may not delegate, to other

than its own officials, the authority to supervise the plan or to develop or issue

policies, rules, and regulations on program matters.”

[T]he single state agency requirement represents
Congress’s recognition that in managing Medicaid, states
should enjoy both an administrative benefit (the ability to
designate a single agency to make Final decisions in the
interest of efficiency) but also a corresponding burden (an
accountability regime in which that agency cannot evade
federal requirements by deferring to the actions of other
entities). . . . In this case, there is no dispute that North

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Carolina law designates the NCDHHS as the agency
responsible for operating the state’s Medicaid plan. N.C.
Gen. Stat. § 108A-54. . . . Federal and state law thus
interlock, establishing the following propositions: the
NCDHHS is the “single State agency” with the final
responsibility to administer the state's Medicaid program
under 42 U.S.C. § 1396a(a)(5)[.] (emphasis added).

Shipman, 716 F.3d at 112-13 (citing San Lazaro Ass'n v. Connell, 286 F.3d 1088,

1100-01 (9th Cir.), cert. denied, 537 U.S. 878, 123 S. Ct. 78, 154 L. Ed. 2d 133 (2002)).

3. Medicaid Integrity Program

42 U.S.C.A. § 1396u-6 establishes the Medicaid Integrity Program and

provides, as relevant to this appeal, that:

(a) There is hereby established the Medicaid Integrity
Program . . . under which the Secretary shall promote the
integrity of the program . . . by entering into contracts in
accordance with this section with eligible entities to carry
out the activities described in subsection (b).

(b) [The] Activities described in this subsection are as
follows:

(1) Review of the actions of individuals or entities
furnishing items or services . . . to determine whether
fraud, waste, or abuse has occurred[.] . . .

(2) Audit of claims for payment for items or services
furnished, or administrative services rendered, under a
State plan under this subchapter[.]

(3) Identification of overpayments to individuals or
entities receiving Federal funds under this subchapter[.]

(4) Education or training, . . . (emphasis added).

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42 U.S.C.A. § 1396(a)(42)(B)(i) directs each state to “establish a program under

which the State contracts . . . with 1 or more recovery audit contractors for the

purpose of identifying underpayments and overpayments and recouping

overpayments under the State plan[.]” 42 U.S.C.A. § 1396(a)(42)(B)(ii) requires that

a state’s Medicaid integrity program must “provide assurances satisfactory to the

Secretary that--

(I) under such contracts, payment shall be made to such a
contractor only from amounts recovered;

(II) from such amounts recovered, payment. . . shall be
made on a contingent basis for collecting overpayments;
and . . .

(III) the State has an adequate process for entities to
appeal any adverse determination made by such
contractors; and

(IV) such program is carried out in accordance with such
requirements as the Secretary shall specify[.] . . .

Similarly, 42 C.F.R. § 455.200(a) “implements section 1936 of the Social

Security Act that establishes the Medicaid Integrity Program, under which the

Secretary will promote the integrity of the program by entering into contracts with

eligible entities to carry out the activities under this subpart[.]” 42 C.F.R. § 455.232

provides that:

The contract between CMS and a Medicaid integrity audit
program contractor specifies the functions the contractor
will perform. The contract may include any or all of the
following functions:

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(a) Review of the actions of individuals or entities
furnishing items or services . . . to determine whether
fraud, waste, or abuse has occurred, [or] is likely to occur[.]

(b) Auditing of claims for payment for items or services
furnished, or administrative services rendered, under a
State Plan . . . to ensure proper payments were made. . . .

(c) Identifying if overpayments have been made to
individuals or entities receiving Federal funds[.] . . .

(d) Educating providers of service, managed care entities,
beneficiaries, and other individuals with respect to
payment integrity and quality of care. (emphasis added).

These regulations establish that, notwithstanding the general rule that the

single state agency may not delegate its “authority to supervise the plan or to develop

or issue policies, rules, and regulations on program matters,” DHHS is expressly

authorized to contract with private companies for the purpose of identification and

recoupment of overpayments to health care providers. Consistent with the

requirement that the state agency not delegate its discretionary authority, the

enumerated purposes for which DHHS may contract with a private company do not

include the authority for a private contractor to make discretionary policy decisions

or discretionary decisions in individual cases on behalf of the state agency

administering a state’s Medicaid program. “The designated state agency may not

delegate to any other agency the authority to exercise discretion in administering the

program. See 42 C.F.R. 431.10(e). However, the single state agency may subcontract

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certain functions that do not involve a delegation of discretionary authority.” Azer v.

Connell, 306 F.3d 930, 933 (9th Cir. 2002). This limitation is particularly appropriate,

given that federal regulations specify that a private contractor such as PCG should

be paid on a contingent fee basis from the funds that are recouped from health care

providers pursuant to the contractor’s audits, clearly giving the private contractor a

conflict of interest in the matter.

B. North Carolina State Statutes and Regulations

1. Introduction

The North Carolina Medicaid program was established by N.C. Gen. Stat. §

108A-54(a), which states that DHHS “is authorized to establish a Medicaid Program

in accordance with Title XIX of the federal Social Security Act. The Department may

adopt rules to implement the Program.” In recognition of the requirement that state

Medicaid programs must comply with federal Medicaid regulations, N.C. Gen. Stat.

§ 108A-56 provides in relevant part that “[a]ll of the provisions of the federal Social

Security Act providing grants to the states for medical assistance are accepted and

adopted, and the provisions of this Part shall be liberally construed in relation to such

act so that the intent to comply with it shall be made effectual.”

2. Appeal from Medicaid Decisions

Judicial review of the final decision of an administrative agency in a contested

case is governed by N.C. Gen. Stat. § 150B–51 (2013), which “governs both trial and

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appellate court review of administrative agency decisions.” N. C. Dept. of Correction

v. Myers, 120 N.C. App. 437, 440, 462 S.E.2d 824, 826 (1995), aff’d per curiam, 344

N.C. 626, 476 S.E.2d 364 (1996). Under N.C. Gen. Stat. § 150B-23(a) (2013), a

“contested case shall be commenced by . . . filing a petition with the Office of

Administrative Hearings and, except as provided in Article 3A of this Chapter, shall

be conducted by that Office.” § 150B-23(f) provides in relevant part that:

(f) Unless another statute or a federal statute or regulation
sets a time limitation for the filing of a petition in contested
cases against a specified agency, the general limitation for
the filing of a petition in a contested case is 60 days. The
time limitation, whether established by another statute,
federal statute, or federal regulation, or this section, shall
commence when notice is given of the agency decision to all
persons aggrieved who are known to the agency[.] . . . The
notice shall be in writing, and shall set forth the agency
action, and shall inform the persons of the right, the
procedure, and the time limit to file a contested case
petition. . . . (emphasis added).

The APA applies to appeals by a Medicaid provider. N.C. Gen. Stat. § 108C-12

states in pertinent part that:

(a) General Rule. -- Notwithstanding any provision of
State law or rules to the contrary, this section shall govern
the process used by a Medicaid provider or applicant to
appeal an adverse determination made by the Department.

(b) Appeals. -- Except as provided by this section, a request
for a hearing to appeal an adverse determination of the
Department under this section is a contested case subject
to the provisions of Article 3 of Chapter 150B of the General
Statutes. (emphasis added)

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The term “adverse determination” is defined in N.C. Gen. Stat. § 108C-2, which

provides in pertinent part that “[t]he following definitions apply in this Chapter:

(1) Adverse determination. A final decision by the
Department to deny, terminate, suspend, reduce, or recoup
a Medicaid payment[.] . . .

...

(3) Department.--[DHHS], its legally authorized agents,
contractors, or vendors who acting within the scope of their
authorized activities, assess, authorize, manage, review,
audit, monitor, or provide services pursuant to Title XIX or
XXI of the Social Security Act, [or] the North Carolina
State Plan of Medical Assistance[.] . . . (emphasis added).

Thus, the deadline for noting an appeal to the OAH begins when a health care

provider receives written notice of a “final decision” by DHHS exercising its discretion

to “deny, terminate, suspend, reduce, or recoup a Medicaid payment[.]”

3. North Carolina Medicaid Integrity Program

N.C. Gen. Stat. § 108C-5(b) provides in relevant part that “[i]n addition to the

procedures for suspending payment set forth at 42 C.F.R. § 455.23 [pertaining to

fraud, which is not alleged in the instant case], the Department may also suspend

payment to any provider that (i) owes a final overpayment, assessment, or fine to the

Department[.]” N.C. Gen. Stat. § 108C-5(b)(i) further states that “[p]rior to

extrapolating the results of any audits, the Department shall demonstrate and inform

the provider that (i) the provider failed to substantially comply with the requirements

of State or federal law or regulation[.]”

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The specific rules governing North Carolina’s Medicaid integrity program are

set out in the North Carolina Administrative Code (N.C.A.C.). 10 N.C.A.C. 22F.0101

states that “[t]his Subchapter shall provide methods and procedures to ensure the

integrity of the Medicaid program.” 10A N.C.A.C. 22F.0102 provides that DHHS

“shall perform the duties required by this Subchapter” and that DHHS “may enter

into contracts with other persons for the purpose of performing these duties.” We

note, however, that under 42 C.F.R. 431.10(e), DHHS may not “enter into contracts

with other persons for the purpose” of delegating to its contractors The responsibility

of DHHS for administration and supervision of North Carolina’s Medicaid program,

including its responsibility for rendering discretionary decisions that require the

application of department policy to specific facts. N.C.A.C. regulations also provide

in relevant part that:

2. 10A N.C.A.C. 22F.0103.

(a) [DHHS] shall develop, implement and maintain
methods and procedures for preventing, detecting,
investigating, reviewing, hearing, referring,
reporting, and disposing of cases involving fraud,
abuse, error, overutilization or the use of medically
unnecessary or medically inappropriate services.

(b) The Division shall institute methods and
procedures to:

...

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N.C. DEP'T OF HEALTH & HUM. SERVS. V. PARKER HOME CARE, LLC
DIV. OF MED. ASSISTANCE V. PARKER HOME CARE, LLC

Opinion of the Court

(2) perform preliminary and full
investigations to collect facts, data, and
information;

(3) analyze and evaluate data and
information to establish facts and conclusions
concerning provider and recipient practices;

(4) make administrative decisions affecting
providers, including but not limited to
suspension from the Medicaid program;

(5) recoup improperly paid claims;

...

(7) conduct administrative review or, when
legally necessary, hearings[.] . . .

3. 10A N.C.A.C. 22F.0302.

(a) Abusive practices shall be investigated according
to the provisions of Rule .0202 of this Subchapter.

(b) A Provider Summary Report shall be prepared by
the investigative unit furnishing the full
investigative findings of fact, conclusions, and
recommendations.

(c) The Division shall review the findings,
conclusions, and recommendations and make a
tentative decision for disposition of the case from
among the following administrative actions:

(1) To place provider on probation with terms
and conditions for continued participation in
the program.

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N.C. DEP'T OF HEALTH & HUM. SERVS. V. PARKER HOME CARE, LLC
DIV. OF MED. ASSISTANCE V. PARKER HOME CARE, LLC

Opinion of the Court

(2) To recover in full any improper provider
payments.

(3) To negotiate a financial settlement with
the provider.

(4) To impose remedial measures to include a
monitoring program of the provider’s
Medicaid practice terminating with a “follow-
up” review to ensure corrective measures
have been introduced.

(5) To issue a warning letter notifying the
provider that he must not continue his
aberrant practices or he will be subject to
further division actions.

(6) To recommend suspension or termination.

(d) The tentative decision shall be subject to the
review procedures described in Section .0400 of this
Subchapter.

4. 10A N.C.A.C. 22F.0402.

(a) Upon notification of a tentative decision the
provider will be offered, in writing, by certified mail,
the opportunity for a reconsideration of the tentative
decision and the reasons therefor.

(b) The provider will be instructed to submit to the
Division in writing his request for a Reconsideration
Review within fifteen working days from the date of
receipt of the notice. Failure to request a
Reconsideration Review in the specified time shall
result in the implementation of the tentative
decision as the Division’s final decision.

...

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 N.C. DEP'T OF HEALTH & HUM. SERVS. V. PARKER HOME CARE, LLC
DIV. OF MED. ASSISTANCE V. PARKER HOME CARE, LLC

Opinion of the Court

(e) The Reconsideration Review decision will be sent
to the provider in writing by certified mail within
five working days following the date of review. It will
state . . . that if the Reconsideration Review decision
is not acceptable to the provider, he may request a
contested case hearing in accordance with the
provisions found at 10A NCAC 01. Pursuant to G.S.
150B-23(f), the provider shall have 60 days from
receipt of the Reconsideration Review decision to
request a contested case hearing. Unless the request
is received within the time provided, the
Reconsideration Review decision shall become the
Division’s final decision. . . . (emphasis added)

Thus, notwithstanding the assistance of private companies such as PCG, under

the relevant N.C.A.C. regulations, DHHS retains the authority for supervision of the

Medicaid integrity program and for making the discretionary decisions in particular

cases. For example, 10A N.C.A.C. 22F.0103(b)(4) expressly states that DHHS will

“make administrative decisions affecting providers[.]” 10A N.C.A.C. 22F.0302

provides that after a report is submitted to DHHS setting out the contractor’s

“investigative findings of fact, conclusions, and recommendations,” it is DHHS that

“shall review the findings, conclusions, and recommendations and make a tentative

decision for disposition of the case from among” six administrative actions. Selection

of the appropriate “administrative action” to take in response to a specific

investigative report is clearly a discretionary decision requiring the application of

policies developed by DHHS. Further, it is DHHS’s “tentative decision” that is

reviewed prior to DHHS making a final decision that is subject to review by the OAH.

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 N.C. DEP'T OF HEALTH & HUM. SERVS. V. PARKER HOME CARE, LLC
DIV. OF MED. ASSISTANCE V. PARKER HOME CARE, LLC

Opinion of the Court

We note that the “informal” reconsideration review of PCG’s “tentative” audit

results is not included in the N.C.A.C.’s regulations governing the Medicaid integrity

program. This is apparently an additional level of review provided by DHHS. Upon

review of the relevant provisions of the N.C.A.C., construed in the context of the

federal regulations discussed above, we conclude that the N.C.A.C. regulations

expressly provide for the following steps in an investigation into possible

overpayments for Medicaid claims:

1. Under 10A N.C.A.C. 22F.0102, DHHS may enter into
contracts with private companies such as PCG for the
purpose of auditing the Medicaid claims of health care
providers.

2. Under 10A N.C.A.C. 22F.0103(b), a private company
such as PCG may “perform preliminary and full
investigations to collect facts, data, and information” and
“analyze and evaluate data and information.” The private
contractor will then prepare a summary report for DHHS.

3. Under 10A N.C.A.C. 22F.0302(c), after PCG submits its
report, DHHS “shall review the findings, conclusions, and
recommendations” and shall exercise its discretion to reach
“a tentative decision for disposition of the case” from among
six options.

4. Under 10A N.C.A.C. 22F.0402(a), a health care provider
will be notified of the “tentative decision” reached by
DHHS, after its review of the data gathered by PCG, and
its exercise of discretion regarding the appropriate
response.

5. The health care provider may request a reconsideration
review of DHHS’s “tentative decision” within fifteen days.

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 N.C. DEP'T OF HEALTH & HUM. SERVS. V. PARKER HOME CARE, LLC
DIV. OF MED. ASSISTANCE V. PARKER HOME CARE, LLC

Opinion of the Court

Failure to do so will result in DHHS’s implementing its
tentative decision as its final agency decision.

6. Pursuant to N.C. Gen. Stat. § 150B-23(f), the time for
appeal begins to run when DHHS notifies the health care
provider of DHHS’s “final decision” and of the provider’s
right to appeal from the agency’s final decision to the OAH.

As discussed above, N.C. Gen. Stat. § 108C-2(3) defines DHHS to include “its

legally authorized agents, contractors, or vendors who acting within the scope of their

authorized activities, assess, authorize, manage, review, audit, monitor, or provide

services[.]” We agree with DHHS’s contention that “PCG’s auditing activities are

considered an agency action taken by [DHHS] because PCG acted within the scope of

its authorized activities” in conducting an audit of Parker’s Medicaid claims

payments. We conclude, however, based upon review of (1) the rule stated in 42

C.F.R. 431.10(e), prohibiting DHHS from delegating to a private company the

administrative supervision of its Medicaid program, (2) the federal regulations

setting out the permissible purposes for which a private contractor may be hired as

part of a state’s Medicaid integrity program, and (3) the relevant provisions of the

North Carolina statutes and the N.C.A.C., that both federal and state regulations

clearly contemplate that the role of a private company will be limited to the

performance of duties that do not include rendering a discretionary decision as to the

most appropriate course of action in a particular case. We therefore hold that a

private company such as PCG does not have the authority to substitute for DHHS by

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 N.C. DEP'T OF HEALTH & HUM. SERVS. V. PARKER HOME CARE, LLC
DIV. OF MED. ASSISTANCE V. PARKER HOME CARE, LLC

Opinion of the Court

reviewing its own audit, choosing the most appropriate response to a given factual

situation, rendering DHHS’s “tentative decision, or determining on behalf of DHHS

that, unless a provider requests what DHHS admits is an “informal reconsideration

review” that DHHS will conduct no additional review of PCG’s “tentative” audit

results. Simply put, these are decisions that require the exercise of discretion and

the application of DHHS’s policy priorities and, as such, cannot be delegated to a

private contractor such as PCG.

In apparent recognition of this restriction, we note that DHHS did not argue

at the trial level or on appeal that PCG was authorized to render a “final decision” on

behalf of DHHS. As a result, a TNO does not constitute notice of an “adverse

determination” unless it informs the recipient of a “final decision” by DHHS to “deny,

terminate, suspend, reduce, or recoup a Medicaid payment.”

V. Legal Analysis

A. The TNO

The TNOs were sent on PCG’s letterhead, with the heading, in all caps and

underlined, of “TENTATIVE NOTICE OF OVERPAYMENT.” The TNO’s are

essentially the same, except for the specific overpayments that are alleged. The body

of the letter delivered by PCG in COA No. 15-1026 states that: (Rp 189)

Dear PARKER HOME CARE, LLC:

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N.C. DEP'T OF HEALTH & HUM. SERVS. V. PARKER HOME CARE, LLC
DIV. OF MED. ASSISTANCE V. PARKER HOME CARE, LLC

Opinion of the Court

[DHHS] and its authorized agents periodically conduct
announced and unannounced audits and post-payment
reviews of Medicaid paid claims in order to identify
program abuse and overpayment(s) in accordance with 42
U.S.C. § 1396a, Parts 455 and 456 of Title 42 of the Code of
Federal Regulations, N.C.G.S. 2011-399 and 10A NCAC
Subchapter 22F. Public Consulting Group, Inc. (PCG) is a
post-payment claims review contractor for DMA.

A post-payment review of a statistically valid random
sample of your Medicaid paid claims for dates of service
from 6/1/2010 to 9/30/2010 was recently completed. The
results of the post-payment review revealed that your
agency failed to substantially comply with the
requirements of State and federal law or regulation
including but not limited to the following:

...

DMA has tentatively identified the total amount of
improperly paid claims in the sample to be $3,724.08. In
accordance with 10A NCAC 22F.0606 and N.C. Session
Law 2011-399, N.C.G.S. 108C-5, DMA or its agents are
authorized to use a random sampling technique to
calculate and extrapolate the total overpayment whenever
a Medicaid provider fails to substantially comply with the
requirements of State and federal law or regulation. You
may challenge the determination of substantial non-
compliance during the appeal process described below. In
the event that you do not challenge this determination or
your challenge is not successful, PCG has utilized random
sampling and extrapolation in order to determine that your
agency received a total Medicaid overpayment in the
amount of $391,797.00. . . .

You may request a reconsideration review of this tentative
decision in accordance with 10A NCAC 22F .0402. The
request for reconsideration review must be submitted

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 N.C. DEP'T OF HEALTH & HUM. SERVS. V. PARKER HOME CARE, LLC
DIV. OF MED. ASSISTANCE V. PARKER HOME CARE, LLC

Opinion of the Court

within fifteen (15) working (business) days of receipt of this
letter. . . . (emphasis added).

...

If you are not challenging the extrapolation of result as
described in N.C.G.S. §108C-5(n) and you do not request a
reconsideration review within fifteen (15) working
(business) days of receipt of this letter or if you disagree
with the reconsideration review decision, you may file a
petition for a contested case hearing with the Office of
Administrative Hearings (OAH) in accordance with G.S. §
156B-23(a). You have sixty (60) calendar days from either
the date of this letter (if you do not request a
reconsideration review) or the date of the reconsideration
review decision to file a contested case petition with the
OAH. . . .

In accordance with 10A NCAC 22F .0402(e), unless a
request is filed at the [OAH] within the time provided, the
reconsideration review decision shall become the
Department’s final decision. (emphasis added)

B. Discussion

The issue in this appeal is whether the TNO constituted written notice of an

“adverse determination” by DHHS, defined as a “final decision” by DHHS. We

conclude that the TNO does not inform Parker of a decision reached by DHHS.

We initially note that the TNO’s heading, “Tentative Notice of Overpayment,”

does not suggest that the TNO constitutes a final decision by DHHS. The TNO

discusses PCG’s audit of a small fraction of Parker’s Medicaid claims payments,

PCG’s “tentative” determination that Parker was overpaid, and PCG’s mathematical

extrapolation of the results of its audit. The TNO does not contain any reference to

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 N.C. DEP'T OF HEALTH & HUM. SERVS. V. PARKER HOME CARE, LLC
DIV. OF MED. ASSISTANCE V. PARKER HOME CARE, LLC

Opinion of the Court

a review by DHHS, or to a tentative decision by DHHS regarding PCG’s audit. To

the extent that the TNO thereby suggests that the results of its own “tentative”

determination of overpayment will, without any review by DHHS, automatically

become a “final decision” by DHHS unless Parker seeks an informal “reconsideration

review” of PCG’s tentative determination, PCG has misstated the applicable law and

has purported to have the prerogative to act outside the scope of its authority. As

discussed above, the N.C.A.C. provisions explicitly require that DHHS review PCG’s

investigative results, choose the appropriate administrative action, and make its own

“tentative decision” that may be reviewed before DHHS renders a final decision.

We conclude that the relevant statutes and regulations do not support the

conclusion that a private contractor’s preliminary review of a small percentage of a

provider’s Medicaid claims payments is sufficient to establish, without any review or

exercise of discretion by DHHS, that the provider owes DHHS a debt of hundreds of

thousands of dollars. Although both the TNO and N.C.A.C. employ the word

“tentative,” the TNO informed Parker of the results of PCG’s audit, and did not inform

Parker of a “tentative decision” reached by DHHS based upon its review of the audit

results, and its exercise of discretion to select the most appropriate response. As a

result, the TNO appears to conflate the “tentative” results of PCG’s audit with the

tentative decision that can only be made by DHHS.

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 N.C. DEP'T OF HEALTH & HUM. SERVS. V. PARKER HOME CARE, LLC
DIV. OF MED. ASSISTANCE V. PARKER HOME CARE, LLC

Opinion of the Court

Moreover, the TNO itself states that unless Parker requests a reconsideration

review, which DHHS concedes on appeal to be an “informal” review, PCG’s

preliminary audit results will become DHHS’s final decision. Leaving aside the fact

that the TNO thereby posits that DHHS will adopt PCG’s “tentative” audit results as

its own final decision without performing any of its required duties under the

N.C.A.C., the TNO explicitly states that the “final decision” will be reached in the

future. When this occurs, after DHHS reviews the results of PCG’s audit, DHHS

would then be required to notify Parker of its final decision.

We conclude that the TNO did not inform Parker of any “final decision” by

DHHS. Because the TNO did not constitute notice of an adverse determination or

final decision by DHHS, it did not trigger the time limits for Parker to note an appeal

to the OAH. In reaching this conclusion, we have considered, but have ultimately

rejected, DHHS’s arguments for a contrary result.

N.C. Gen. Stat. § 108C-5 was amended effective 1 July 2014 to add N.C. Gen.

Stat. § 108C-5(t), which provides that “[n]othing in this Chapter shall be construed

to prohibit the Department from utilizing a contractor to send notices to providers on

behalf of the Department.” The parties have offered arguments on the question of

whether PCG was authorized, prior to the amendment of N.C. Gen. Stat. § 108C-5,

to communicate to Parker a final decision by DHHS. We conclude that this issue is

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 N.C. DEP'T OF HEALTH & HUM. SERVS. V. PARKER HOME CARE, LLC
DIV. OF MED. ASSISTANCE V. PARKER HOME CARE, LLC

Opinion of the Court

not pertinent to the present case, because the TNO does not inform Parker of a “final

decision” rendered by DHHS.

DHHS also argues that in COA No. 15-1026 ALJ Lassiter erred by ruling in an

interlocutory order that DHHS was required to send Parker two separate letters

informing Parker of DHHS’s final decision. We agree with DHHS that there is no

statutory or regulatory requirement that after DHHS has rendered its final decision,

DHHS must send two separate letters informing the health care provider of this fact.

However, in the present case the TNO did not constitute notice of DHHS’s final

decision. Therefore, the “second letter” to which ALJ Lassiter refers would be the

letter that constituted notice of DHHS’s final decision.

The Medicaid program consists of a complex web of federal and state statutes

and regulations that address a variety of policy issues in an extensive array of

detailed procedural mandates. It would be unnecessary and inappropriate for our

opinion to address issues that are outside the boundaries of the specific issues raised

by this appeal. Accordingly, we note several issues that, although they may bear

some relationship to audits performed under the Medicaid integrity program, are not

addressed in this opinion.

We note, for example, that N.C. Gen. Stat. § 108C-5(b)(i) provides that “[p]rior

to extrapolating the results of any audits, the Department shall demonstrate and

inform the provider” that the “provider failed to substantially comply with the

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 N.C. DEP'T OF HEALTH & HUM. SERVS. V. PARKER HOME CARE, LLC
DIV. OF MED. ASSISTANCE V. PARKER HOME CARE, LLC

Opinion of the Court

requirements of State or federal law or regulation[.]” The TNO makes the conclusory

assertion that Parker had “failed to substantially comply” with the relevant legal

requirements, thus entitling PCG to extrapolate the results of its audit of a small

fraction of Parker’s Medicaid claims. Because it is not necessary to the resolution of

the issues raised by the question of subject matter jurisdiction, we express no opinion

on the extent to which the determination that a provider has “substantially” failed to

comply with state or federal regulations is an exercise of discretion properly

undertaken by DHHS, or on whether the results of PCG’s preliminary audit are

sufficient to demonstrate Parker’s substantial failure to comply with the regulations

governing Medicaid claims.

In addition, the instant case raises the issue of whether a TNO that informs a

health care provider of a private contractor’s “tentative” determination of an

overpayment constitutes notice of a “final decision” by DHHS. Given that the TNO,

by its plain language, provides notice of PCG’s audit results prior to the required

review by DHHS, we have no need to address, and express no opinion on, the issue of

what evidence might be adequate to demonstrate that DHHS had performed its

required functions. Finally, because we conclude that the trial court reached the

correct result in its ruling that the superior court had subject matter jurisdiction over

this matter, we do not address the parties’ arguments on the application of the

doctrines of res judicata or collateral estoppel to the present case.

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 N.C. DEP'T OF HEALTH & HUM. SERVS. V. PARKER HOME CARE, LLC
DIV. OF MED. ASSISTANCE V. PARKER HOME CARE, LLC

Opinion of the Court

For the reasons discussed above, we conclude that the trial court did not err in

ruling that it had subject matter jurisdiction, and that the trial court’s orders should

be

AFFIRMED.

Judge BRYANT and Judge DILLON concur.

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