Plaintiff's Attorney Joshua D. Hadiaris, Esq.
Defendant's Attorney Thomas Bradley, AAG.
DECISION AND ORDER
William R Stokes, Justice
Before
the court is Petitioner Charles Palian, DMD's Appeal of
Final Agency Action pursuant to M.R.Civ.P. 80C against the
Maine Department of Health and Human Services. After
reviewing the Record, the parties' filings, and
considering the parties' arguments at hearing, the court
finds that Petitioner's Rule 80C appeal must be denied
and the Respondent's decision should be affirmed.
I.
Background
Petitioner
Dr. Palian was an oral surgeon and MaineCare provider in
Lewiston, Maine until his retirement in 2013. (R. 1074.) As a
MaineCare provider, Dr. Palian was contractually obligated to
adhere to MaineCare rules via a Provider Agreement, signed
September 11, 2009. (R. 336.) In December, 2014, Valerie
Hooper, an employee of the Maine Department of Health and
Human Services Program Integrity Unit (the
"Department") sent a request for information to Dr.
Palian for a post-payment review or audit. (R. 458, 1149.)
Ms. Hooper performed the post-payment review, or audit,
selecting at random 100 of Dr. Palian's patients for
which Dr. Palian submitted claims from September 1, 2010,
through December 31, 2013. (R. 1149-50.)
On
October 2, 2015, the Department issued Dr. Palian a Notice of
Violation reporting that for the 100 randomly-selected
patients reviewed during the September 1, 2010 - December 31,
2013 time period, the Department sought $189, 770.08 as a
recoupment for various violations.[1] (R. 32.) The Notice of
Violation alleged that Dr. Palian had violated the MaineCare
Benefits Manual through: 1) improper or incomplete
documentation for interpreter services, radiographs,
anesthesia recovery times, tooth numbers for tooth
extractions and dates of service; 2) improper coding for
non-emergency hospital procedures; 3) improper coding for
Versed, Fentanyl, Ketamine, Propofol, and Valium; 4) billing
for drugs above acquisition cost; 5) duplicate payments,
payments for services covered through primary insurance, or
payments not billed to primary insurance; 6) improper coding
for comprehensive oral evaluation; and 7) improper coding for
alveoplasty when less than four teeth per quadrant were
extracted. (R. 32-34.)
Dr.
Palian timely requested an informal review of the
Department's Notice of Violation, arguing: 1)
documentation for two patients' procedures was provided;
2) the code used for non-emergency hospital procedures was
correctly used because a hospital qualifies as an
"institution" under the American Dental
Association's Dental Procedure Codes; 3) claims for
improper documentation for anesthesia recovery times
misinterpreted the code requirements; 4) adequate radiograph
documentation was provided; 5) claims for overpayments for
alveoplasty misinterpreted the code requirements; 6)
individual claims for overpayments were unfounded; and, 7)
claims for overpayments on drug acquisition costs
misinterpreted the code requirements. (R. 83.) Furthermore,
Dr. Palian argued that the Department failed to pay him for
multiple claims submitted for reimbursement. (R. 83.)
On
August 9, 2016, Herb Downs, Director of the Department's
Division of Audit, issued a Final Informal Review Decision,
revising the overpayment calculation amount to $147, 329.89.
(R. 104.) Ms. Hooper drafted the decision and provided Mr.
Downs with the audit materials, according to standard
procedure. (R. 1434-35.) The Final Informal Review Decision
overturned the finding of an overpayment on 33 line-items and
reduced the finding of an overpayment to a 20% sanction for
inadequate documentation, overpayments for drug acquisition
costs, supplemental charges for services billed under codes
the Department deemed incorrect, and anesthesia recovery time
overcharges. (R. 104.)
Dr.
Palian timely requested an administrative hearing. (R. 151.)
On July 17, 2017 and again on January 9, 2018, the Department
held an administrative hearing before Hearing Officer Richard
Thackeray. (R. 1122, 1325.) After the hearing, the Department
reduced its demand to $116, 852.05, revising a 100% sanction
for lack of documentation of anesthesia recovery times to a
20% sanction. (R. 375.) On June 5, 2018, Hearing Officer
Thackeray issued an Administrative Hearing Recommended
Decision, finding that the Department correctly established
and maintained a recoupment claim against Dr. Palian for
$116, 852.05. (R. 1076.) In response to Dr. Palian's
other arguments, the Hearing Officer concluded that "the
Department did not violate Dr. Palian's procedural rights
by virtue of Ms. Hooper assisting Mr. Downs during the Final
Informal Review." (R. 1078.) The Hearing Officer found
that the Department should not be equitably estopped from
maintaining a recoupment claim against Dr. Palian. (R. 1090.)
Lastly, the Hearing Officer determined that Dr. Palian did
not preserve for appeal the argument that the Department
abused its discretion (or failed to exercise discretion at
all) by imposing the maximum penalty of 20% for improperly
documented claims. (R. 1090.)
Dr.
Palian filed a Responses and Exceptions to the
Recommendations of the Hearing Officer on June 19, 2018. (R.
1094.) On July 3, 2018, Commissioner Ricker Hamilton issued
the Final Decision adopting the Recommended Decision. (R.
1121.) Dr. Palian timely filed this Rule 80C appeal. Oral
argument was held on April 23, 2019.
II.
Standard of Review
When
the decision of an administrative agency is challenged on
appeal, the court may reverse or modify the decision if the
administrative findings, inferences, conclusions or decisions
are:
1) In violation of constitutional or statutory provisions;
2) In excess of the statutory authority of the agency;
3) Made upon unlawful procedure;
4) Affected by bias or error of law;
5) Unsupported by substantial evidence on the whole record;
or
6) Arbitrary or capricious or characterized by abuse of
...