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Family Planning Association of Maine v. Commissioner, Maine Department of Health

Superior Court of Maine, Kennebec

June 21, 2017




         Before 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.

         I. Background

         FPAM 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. Id.

         On 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. Id.

         On 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 review request.

         On 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.

         FPAM 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

         FPAM is 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.

         In 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 services.[1] Id.

         DHHS 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. Id.

         In 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.

         That 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 ...

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