FAMILY PLANNING ASSOCIATION OF MAINE d/b/a MAINE FAMILY PLANNING, Petitioner,
COMMISSIONER, MAINE DEPARTMENT OF HEALTH AND HUMAN SERVICES, Respondents.
ORDER ON RULE 80C APPEAL
MICHAELA MURPHY JUSTICE, SUPERIOR COURT
the Court is Family Planning Association of Maine's
("FPAM") Rule 80C appeal of the determination by
the Department of Health and Human Services (DHHS) that FPAM
was overpaid $184, 620.83. FPAM is represented by Attorney
Taylor D. Fawns of Kozak & Gayer, P.A. DHHS is
represented by Attorney Thomas C. Bradley, AAG. Oral
arguement was held in the Kennebec County Superior Court on
June 6, 2017.
began providing abortion services at its facility on Gabriel
Drive in Augusta, Maine, in April 1997. Amended
Administrative Hearing Recommended Decision
["Decision"), p. 6, August 12, 2015. FPAM entered
into a "Medicaid/Maine Health Program Provider/Supplier
Agreement" ("MaineCare Provider Agreement")
with DHHS effective July 1, 1997. Id. at 6. The
MaineCare Provider Agreement enabled FPAM to receive
reimbursement from DHHS for approved medical and related
services provided to members of the MaineCare program.
Id. FPAM renewed its MaineCare Provider Agreement on
November 4, 2003; on April 28, 2006; and on November 4, 2009.
November 15, 2010, DHHS's MaineCare Program Integrity
Unit requested ten records of MaineCare claims submitted by
FPAM for reimbursement. Id. On April 11, 2011, DHHS
requested the records for another 100 claims from FPAM from
the period of 2006-2010. Id. On June 24, 2011, DHHS
issued a Notice of Violation against FPAM alleging that FPAM
had been overpaid $188, 354.73 in MaineCare billing claims
based upon the 100 records of randomly selected members who
received trans-vaginal ultrasound procedures through FPAM.
Id. The four sets of violations set out in the
Notice of Violation are: 1) billing abortion related
ancillary services for non-covered abortions; 2) improper
coding for E/M ("evaluation and management")
services billed; 3) Depo-Provera billed above acquisition
cost; and 4) No documentation for services billed.
August 23, 2011, FPAM requested informal review of DHHS's
June 24, 2011 Notice of Violation. Id. FPAM
specifically contested DHHS's findings by arguing: 1)
ancillary services provided on the same day as non-covered
abortion procedures are reimbursable pursuant to state and
federal authority; 2) abortion patients were correctly coded
as "new patients" even if they were established
patients of the independent FPAM family planning practice;
and 3) FPAM's Depo-Provera records demonstrate billing at
acquisition cost. Id. On August 30, 2011, DHHS
undertook a three-year review based upon FPAM's informal
October 8, 2014, DHHS issued a Final Informal Review
Decision. Id. at 7. The Final Informal Review
Decision amended a number of specific findings from the June
24, 2011 Notice of Violation, ultimately affirming the
finding that FPAM was overpaid and subject to recoupment
because it received MaineCare reimbursement for non-covered,
abortion-related services and reducing the amount owed to
$184, 620.83. Id. The reduction of the recoupment
figure was due to a reduction for properly billed
Depo-Provera claims and for properly billed ultrasound
procedures. There was no change of recoupment claims for
abortion-related services billed, for new/established patient
E/M coding, or for failure to properly document
providers' identities. Id.
requested an administrative hearing on December 5, 2014.
Id. Hearing was held on April 16, 2015 before
Hearing Officer Richard W. Thackeray, Jr. Id. at 1.
The Hearing Officer issued the Administrative Hearing
Recommended Decision on July 24, 2015. An Amended
Administrative Hearing Recommended Decision was issued on
August 12, 2015. On September 3, 2015, DHHS adopted the
Decision, b. Findings of Fact
a Maine non-profit corporation that provides family planning
services at 18 facilities throughout Maine. Id. FPAM
started providing abortion services at its first facility in
April 1997. Id. At that time, FPAM only provided
abortion procedures and ancillary services. Id.
Pursuant to the MaineCare Provider Agreement effective July
1, 1997, and each subsequent MaineCare Provider Agreement,
FPAM was able to receive reimbursement from DHHS for covered
medical and related services to enrolled members of the
MaineCare program. Id. at 8.
1997, before entering the MaineCare Provider Agreement, FPAM
administrators Evelyn Kieltyka and Amy Black met with Beth
Ketch, DHHS's provider relations representative to
discuss which of FPAM's services would be reimbursable
under MaineCare and which billing codes should be used when
submitting reimbursement claims. Id. The FPAM
administrators expressly identified that most, if not all, of
the services for which FPAM may seek reimbursement were
ancillary to abortion procedures or abortion-related
services. Id. Beth Ketch verbally advised the FPAM
administrators that services including, but not limited to,
office visits, trans-vaginal ultrasounds, Rh blood testing,
and evaluation and management services, were reimbursable by
MaineCare, and provided FPAM with coding and advice for such
regulations in 1997 provided that abortion services were not
reimbursable through MaineCare unless the procedure was
necessary to save the life of the mother, or where the
pregnancy was the result of rape or incest. Id. At
that time, the regulations did not expressly prohibit
reimbursement for all services related to an unreimbursable
underlying procedure. Id. Such a limitation was
enacted by departmental regulation effective May 3, 2004.
Id.; 10-144 C.M.R. Ch. 101, sub-Ch. II, §
90.07. No changes have been made to the abortion services
specific language [Section 90.05-2) since May 16, 1994 and no
changes have been made to Section 90.07 since May 3, 2004.
November 2010, DHHS's Program Integrity ["PI")
Unit requested records relating to FPAM's abortion
services. In April 2011, PI requested another 100 FPAM
records from between 2006 and 2010. At the time of the second
request for record, Ms. Kieltyka of FPAM contacted MaryAnn
Anderson, the PI unit employee requesting the records.
According to Ms. Kieltyka's notes, Ms. Anderson told her
that there were some questions about MaineCare coverage of
services provided to women on the same day that they
underwent abortion procedures. Hearing Tr. 150:20-151:18.
same day, after her conversation with Ms. Anderson, Ms.
Kieltyka contacted Ms. Ketch. Ms. Kieltyka recalled Ms. Ketch
confirming the 1997 guidance that services that would be
provided to a pregnant woman regardless of her decision to
carry the pregnancy to term were coverable on same day as an
abortion procedure. Hearing Tr. 152:1-19. Ms. Ketch also
suggested that DHHS would send out further guidance ...