Al-Shaikh v. State Department of Health Care ServicesAl-Shaikh v. State Department of Health Care Services
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When Dr. Raad Al-Shaikh, an orthopedic surgeon, moved his Fremont practice a couple of miles from its original location, he applied to the Department of Health Care Services (DHCS), pursuant to Medi-Cal regulations, for approval of his new office as an “established place of business.” He had been an approved Medi-Cal provider at his prior location for six years. Much to Dr. Al-Shaikh‘s surprise, the DHCS denied his application on two grounds, only one of which is at issue here. The DHCS claimed Dr. Al-Shaikh‘s fee arrangement with the medical billing service he used was unlawful. When Dr. Al-Shaikh filed an administrative appeal, the DHCS agreed the regulatory provisions it had cited in asserting his fee arrangement was unlawful, were inapplicable. It then cited to a different state statutory provision, which incorporates a federal Medicaid regulation. Although Dr. Al-Shaikh pointed out this federal regulation also was
In the meantime, Dr. Al-Shaikh also relocated his Auburn practice, for which he used the same billing service as he did for his Fremont practice. His application for Medi-Cal approval for his new Auburn office was granted (by a different regional office of DHCS).
The superior court thereafter heard the merits of Dr. Al-Shaikh‘s challenge to the denial of his application for his Fremont office. At the hearing, Dr. Al-Shaikh directed the court‘s and DHCS‘s attention to an official publication of the Office of the Inspector General (OIG), the principal law enforcement agency for federally funded health care programs, that expressly states his fee arrangement with the billing service does not violate federal law. The court took the matter under submission. The DHCS, in turn, promptly approved Dr. Al-Shaikh‘s application for his Fremont office and then urged the superior court to deny Dr. Al-Shaikh‘s writ petition as moot. The court did not deny the petition, but instead dismissed it as moot and without prejudice to Dr. Al-Shaikh seeking costs and statutory attorney fees.
Dr. Al-Shaikh then moved for fees under
We reverse and remand with directions to award Dr. Al-Shaikh the full amount of fees recoverable under
We conclude the DHCS acted without substantial justification in refusing Dr. Al-Shaikh‘s application to continue as a Medi-Cal provider in his new Fremont location, and reverse with directions to award statutory attorney fees.
BACKGROUND
Dr. Al-Shaikh is an orthopaedic surgeon, and at the time of the events in question, had been an approved Medi-Cal provider at his Fremont location for six years. In May 2012, he relocated his practice to an office several miles from his prior location. As required by the DHCS, Dr. Al-Shaikh applied for approval as a Medi-Cal provider at his new Fremont location.
In the course of evaluating Dr. Al-Shaikh‘s application, the DHCS sent a representative from its Audits and Investigation Division to review compliance with Medi-Cal laws and regulations to determine whether the Fremont practice was an
Dr. Al-Shaikh filed an administrative appeal. During the appeal, the DHCS acknowledged the cited authority for denial based on the billing fee arrangement, was inapplicable. It then cited to other statutory and regulatory provisions, specifically
The DHCS issued its ruling on Dr. Al-Shaikh‘s appeal in May 2014. It sustained his appeal as to permanently posted business hours. It denied his appeal as to the fee arrangement with the billing service, stating, the service “is compensated on a percentage basis . . . [t]herefore, the [a]pplicant is not in compliance with
Dr. Al-Shaikh then filed the instant writ proceeding, challenging the denial of his application.
In the meantime, Dr. Al-Shaikh also relocated his office in Auburn, in connection with which he also used the same third-party billing service under the same fee arrangement. He duly applied for Medi-Cal approval for that office, which was granted in September 2014 (by a different regional office of DHCS).
In April 2015, this writ proceeding came before the superior court. The DHCS continued to insist Dr. Al-Shaikh‘s fee arrangement with the billing service ran afoul of
After the court issued a tentative decision denying writ relief, Dr. Al-Shaikh‘s attorney directed the court‘s and the DHCS‘s attention to an excerpt from the Federal Register in which the OIG had published its “Compliance Program for Individual and Small Group Physician Practices,” and, specifically, to that part of the publication expressly stating a physician‘s percentage fee arrangement with a billing services does
The DHCS, in turn, immediately approved Dr. Al-Shaikh‘s application for approval of his Fremont practice location. It then asked that his writ petition be denied as moot. After hearing argument, the court declined to deny the petition, but instead dismissed it as moot, without prejudice to Dr. Al-Shaikh seeking costs and attorney fees.
Dr. Al-Shaikh then sought fees under
The court denied Dr. Al-Shaikh‘s fee request, stating that “based on the briefing . . . before” it, it had “thought the State was right in terms of what they said about the third-party billing” and that it had changed its view only after Dr. Al-Shaikh‘s attorney provided the relevant excerpt from the OIG publication.
DISCUSSION
The principal issue before us is whether the DHCS acted “without substantial justification” in denying Dr. Al-Shaikh‘s application for approval of his relocated Fremont office on the ground the fee arrangement with his third-party billing service violated the law and, specifically,
As we have recited, the trial court concluded that, based on the briefing the DHCS had submitted, it appeared the agency had a reasonable basis for concluding Dr. Al-Shaikh‘s fee arrangement with the billing service violated that regulatory law. It was not until Dr. Al-Shaikh‘s attorney directed the court and the DHCS to the applicable federal law, said the court, that it “agreed” with Dr. Al-Shaikh that the fee arrangement did not violate this regulatory provision. However, in looking at the issue this way, the superior court excused the DHCS from knowing the very law it is charged with implementing and enforcing. In our view, it should not have been left to Dr. Al-Shaikh‘s attorney to educate the DHCS as to the federal regulatory controls governing the use of medical billing services. While the DHCS attempts to excuse its apparent lack of familiarity with this law by complaining the OIG publication, to which Dr. Al-Shaikh directed its attention, appeared within the pages of the massive Federal Register, this is not close to an accurate description of the OIG‘s efforts to ensure compliance with the law governing federally funded health care programs.
The OIG is the principal federal agency charged with enforcing the rules and regulations governing federally funded health care programs, including Medicaid. (See generally Gosfield, Medicare and Medicaid Fraud and Abuse (2017) § 1:3, at pp. 8–9 [the Inspector General “remains the chief federal spokesperson responsible for policy development, case expertise, and relationships with private third party payors“].) The
As part of its effort in this regard, the OIG has issued compliance program guidance for numerous sectors of the health care industry. (Medicare and Medicaid Fraud and Abuse, supra, § 1:1, p. 6.) So far, the OIG has issued publications pertaining to clinical laboratories (62 Fed. Reg. 9435 (March 3, 1997), 63 Fed. Reg. 45076 (Aug. 24, 1998)); hospitals (63 Fed. Reg. 8987 (Feb. 23, 1998), 70 Fed. Reg. 4858 (Jan. 31, 2005)); home health agencies (63 Fed. Reg. 42410 (Aug. 7, 1998)); third-party medical billing companies (63 Fed. Reg. 70138 (Dec. 18, 1998)); suppliers of durable medical equipment (64 Fed. Reg. 36368 (July 6, 1999)); hospices (64 Fed. Reg. 54031 (Oct. 5, 1999)); Medicare+Choice organizations (64 Fed. Reg. 61893 (Nov. 15, 1999)); nursing facilities (65 Fed. Reg. 14289 (Mar. 16, 2000)), 73 Fed. Reg. 56832 (Sept. 30, 2008)); individual and small group physician practices (65 Fed. Reg. 59434 (Oct. 5, 2000)); ambulance suppliers (68 Fed. Reg. 14245 (Mar. 24, 2003)); and pharmaceutical manufacturers (68 Fed. Reg. 23731 (May 5, 2003)).
These publications represent a major advisement effort by the OIG, and they have been prepared with the same formality that accompanies formal rule making. (See, e.g., “OIG Compliance Program for Individual and Small Group Physician Practices” (65 Fed. Reg. 59434 (Oct. 5, 2000) [“The creation of compliance program guidances is a major initiative of the OIG in its effort to engage the private health care community in preventing the submission of erroneous claims and in combating fraudulent conduct.“].)
Accordingly, in connection with each publication, the OIG, in the Federal Register, has published initial notice and asked for input, published a draft and solicited comments, and, finally, published the final guidance. For example, in connection with the compliance program guidance for individual and small group physician practices, to which Dr. Al-Shaikh‘s attorney directed the superior court‘s and the DHCS‘s attention, the OIG issued notice of its intent to prepare the guidance and solicited input in September 1999 (64 Fed. Reg. 48846 (Sept. 8, 1999)), published its draft compliance program and solicited comments in June 2000 (65 Fed. Reg. 36818 (June 12, 2000)), and
Each of the OIG‘s guidance publications discusses the features of an effective compliance program. These features generally include conducting internal audits, implementing compliance and practice standards, appropriate training of personnel, responding to violations (identified during audits), and maintaining open lines of communication among personnel. (See, e.g., “OIG Compliance Program for Individual and Small Group Physician Practices” (65 Fed. Reg. 59434 (Oct. 5, 2000).)
Each guidance publication additionally identifies “specific risk” areas for the particular sector of the health care industry to which the publication pertains. (See, e.g., 65 Fed. Reg. 59438 (Oct. 5, 2000).) Identified “risk areas” are not violations of federal law. Rather, they are areas to which the provider of medical services or devices should pay particular attention to minimize the risk of a violation.
For example, in connection with its “Compliance Program for Individual and Small Group Physician Practices,” the OIG “developed a list of four potential risk areas affecting physician practices.” (65 Fed. Reg. 59438 (Oct. 5, 2000).) These include, “[c]oding and billing,” “reasonable and necessary services,” “documentation,” and “improper inducements, kickbacks and self-referrals.” (65 Fed. Reg., supra, pp. 59438–59439.) The OIG discusses each of these risk areas in some detail. For example, with respect to coding and billing, the OIG identifies and defines acts that do or may violate the law, for example, billing for services not rendered, submitting a claim for services that were not necessary, knowing misuse of provider identification numbers, double billing, unbundling, and upcoding. (65 Fed. Reg., supra, p. 59439.) In short, it is these acts by billers (whether a physician or a billing service), resulting in overpayment by the government, that violate federal law. (See generally, Medicare and Medicaid Fraud and Abuse, supra, § 1:7, at pp. 24–28 [discussing the kinds of billing acts that are fraudulent].)
The OIG provides additional, detailed discussion of these potential risk areas for individual and small physician practices in appendix A of the publication. (65 Fed.
The first point the OIG makes in part III of appendix A, pertains to the use of third-party billing services. Given the importance of this point to the instant case, we recite the OIG‘s discussion it its entirety:
“One of the most common risk areas involving billing services deals with physician practices contracting with billing services on a percentage basis. Although percentage based billing arrangements are not illegal per se, the Office of Inspector General has a longstanding concern that such arrangements may increase the risk of intentional upcoding and similar abusive billing practices. [Fn. omitted.] [¶] . . . [¶]
“A physician may contract with a billing service on a percentage basis. However, the billing service cannot directly receive the payment of Medicare funds into a bank account that it solely controls. Under
42 U.S.C. 1395u(b)(6) , Medicare payments can only be made to either the beneficiary or a party (such as a physician) that furnished the services and accepted assignment of the beneficiary‘s claim. A billing service that contracts on a percentage basis does not qualify as a party that furnished services to a beneficiary, thus a billing service cannot directly receive payment of Medicare funds. According to the Medicare Carriers Manual Section 3060(A), a payment is considered to be made directly to the billing service if the service can convert the payment to its own use and control without the payment first passing through the control of the physician. For example, the billing service should not bill the claims under its own name or tax identification number. The billing service should bill claims under the physician‘s name and tax identification number. Nor should a billing service receive the payment of Medicare funds directly into a bank account over which the billing service maintains sole control. The Medicare payments should instead be deposited into a bank account over which the provider has signature control.“Physician practices should review the third-party medical billing guidance for additional information on third-party billing companies and the compliance risk areas associated with billing companies.” (65 Fed. Reg. 59447 (Oct. 5, 2000), italics added.)
This straightforward discussion makes two things clear. First, physicians and billing services must pay careful attention to billing practices to ensure that billers do not, in fact, engage in fraudulent practices, such as using a higher than warranted procedure
The referenced third-party billing guidance—the “OIG Compliance Program Guidance for Third-Party Medical Billing Companies“—was published two years prior to the individual and small group physician guidance. (63 Fed. Reg. 70138 (Dec. 18. 1998).) In this publication, the OIG recognized “[b]illing companies are becoming a vital segment of the national health care industry” and providers are increasingly “relying on billing companies to assist them in processing claims in accordance with applicable statutes and regulations.” (63 Fed. Reg., supra, p. 70139.) It further observed that the range of services by billing companies varies widely, from simply preparing and sending bills, to providing advice on reimbursement issues. (Ibid.) Its intent in publishing a compliance program guidance specifically for billing companies, said the OIG, is “to establish a culture within a billing company that promotes prevention, detection and resolution of instances of conduct that do not conform to Federal and State law.” (Ibid.)
As in its other compliance guidance publications, the OIG outlined the elements of an effective billing company compliance program, including making a risk assessment. (63 Fed. Reg. 70142 (Dec. 18, 1998).) And as in its other compliance guidance publications, the OIG identified “risk areas” of general concern for billing companies, including, among other things, billing for services not documented, unbundling, upcoding, balance billing, misuse of provider identification numbers, and “company incentives that violate the anti-kickback statute or other similar Federal or State statute or regulation.” (Ibid.) As to the last item, the OIG noted: “For billing companies that
Thus, in its “Compliance Program Guidance for Third-Party Medical Billing Companies” the OIG did not pronounce percentage fee billing arrangements unlawful. Rather, the OIG recognized that these billing arrangements exist and pointed out that when used, billing companies must be vigilant that their employees do not engage in conduct that is unlawful, such as over-billing through upcoding. The OIG also separately discussed the particular risk areas of billing companies that provide coding services, and in that discussion, it recommended that the compensation billing companies pay their employees in a manner so as not to “provide any financial incentive to improperly upcode claims.” (63 Fed. Reg. 70143–70144 (Dec. 18, 1998).)
The OIG‘s extensive efforts to combat Medicaid abuse and provide specific guidance with respect to numerous sectors of the heath care industry, including third-party billing companies and individual and small physician practices, have not been hidden away from the purview of governmental health care professionals. On the contrary, the OIG‘s guidance publications have been, and continue to be, referenced in health care industry reference materials. (E.g., Health Care Financial Transactions Manual § 5:106 (2017) [OIG publications are intended ” (1) to offer guidance to the OIG and Department of Justice negotiators in developing settlements for health care providers, and (2) to furnish health care providers with information on how to better protect their operations from fraud.“]; Medicare and Medicaid Fraud and Abuse, supra, § 1:1, p. 6 [“OIG has issued eleven statements offering Model Compliance Guidance for specific sectors of the health care industry” and “are intended to prevent, as well as create systems to self-disclose, the problems that inevitably arise” in large, complex governmental programs]; id., § 1:5, p. 17; id., § 1:21, p. 69 [OIG compliance program guidelines are a
Even apart from the OIG guidance, the federal regulation referenced in
Thus, the title of the regulation—“Prohibition against reassignment of provider claims“—and its initial paragraph—“[t]his section implements section 1902(a)(32) of the Act which prohibits State payments for Medicaid services to anyone other than a provider or beneficiary, except in specified circumstances.” (
In substance, this regulation specifies: “Payment may be made only—(1) To the provider; or (2) To the beneficiary if he is a noncash beneficiary eligible to receive the payment under § 447.25; or (3) In accordance with paragraphs (e), (f), and (g) of this section.” (
Thus, as the OIG specifies in its guidance, this regulation, as it states, concerns payments by a governmental entity, such as California in connection with the Medi-Cal program, to someone other than the provider. And, specifically, these are the regulatory provisions to which the OIG is referring in part III of appendix A of its “Compliance Program for Individual and Small Group Physician Practices” in stating that a “billing service cannot directly receive the payment of Medicare funds.” (65 Fed. Reg. 59447 (Oct. 5, 2000), italics added);5 see MCP Manual, supra, Chap. 1, §30.2.4 [discussing payments to “agents” and stating requirements pertaining to compensation are applicable only to a billing agent that claims and receives payment “on behalf of” the provider; “The conditions specified . . . do not apply if the agent merely prepares the bills for the provider and does not receive and negotiate the checks payable to the provider/supplier.” Italics added.].)
Accordingly, this is not a case where the applicable regulatory law was unsettled or unclear and the DHCS therefore had to make a reasoned call as to the proper application of the relevant law. On the contrary, the principal law enforcement agency for Medicare and Medicaid has clearly and unequivocally stated (in fact, it said so more than a decade before the DCHS considered Dr. Al-Shaikh‘s application) that a percentage fee arrangement with a third-party billing service does not violate federal law. This
In short, the DCHS refused to allow Dr. Al-Shaikh to continue as a Medi-Cal provider not only without any legal basis for doing so, but in direct contravention of federal law. This was regulatory action “undertaken without substantial justification,” under even the most generous meaning of this language.6 (See Evilsizor v. Sweeney (2014) 230 Cal.App.4th 1304, 1312 [“substantial justification” means a justification that “‘is clearly reasonable because it is well grounded in both law and fact,‘” quoting Doe v. United States Swimming, Inc. (2011) 200 Cal.App.4th 1424, 1434].)
The DCHS asserts that if we conclude it acted without substantial justification, we are also indicting the superior court, given that its tentative ruling was in favor of the state agency. Not so. The court stated that its tentative ruling had been based on the briefing submitted before the hearing on the merits, which included the DCHS‘s brief. It is not the fault of the court that the DCHS‘s assertions in its brief about the controlling law were flatly in error and squarely contrary to seminal publications by both the principal agency charged with enforcing the law applicable to federally funded health care programs and the Centers for Medicare & Medicaid Services.
We further conclude that, given the settled state of the applicable law and the record in this case, the discretion to award fees under
DISPOSITION
The order denying attorney fees under
Banke, J.
We concur:
Margulies, Acting P.J.
Dondero, J.
A147939, Al-Shaikh v. California Department of Health Care Services
Trial Judge: Hon. Evelio M. Grillo
Counsel:
Raad Al-Shaikh, in pro. per., for Plaintiff and Appellant.
Kamala D. Harris, Attorney General, Julie Weng-Gutierrez, Assistant Attorney General, Dane C. Barca, Beverley R. Meyers and Cheryl L. Feiner, Deputy Attorneys General for Defendant and Respondent.