47 Conn. Supp. 228 | Conn. Super. Ct. | 2000
The facts are as follows. During the period from October 1, 1993, through September 30, 1995, Countryside Manor, Inc. (Countryside), was a long-term health care facility in Bristol, furnishing goods and services to beneficiaries of the medicaid program. During that period, Dorothy Hultman was the president and Barry W. Hultman was the administrator of Countryside. Long-term health care facilities participating in the medicaid program file cost reports on an annual basis to allow the department to determine their rate of medicaid reimbursement. These cost reports are signed under oath by the owners and administrators of the facilities. The plaintiffs each signed, under oath, the 1994 and the 1995 cost reports submitted on behalf of Countryside to the department. They each certified that they had read the reports and that the information was "true and correct" *230 to the best of their knowledge "under the penalty of perjury." They also certified that all expenses presented in the reports, as a basis for securing reimbursement for medicaid patients, were incurred to provide patient care at Countryside.
Union Tell, an accounting firm, prepared Countryside's 1994 and 1995 cost reports. On May 26, 1995, a representative of Union Tell wrote to Barry W. Hultman and notified him that Union Tell would not sign the 1994 cost report as preparer because Union Tell could not accurately determine from the records the allowable cost basis for purposes of the medicaid rate computation. Thomas Demchak, an accountant at Union Tell, informed the department's Gary Richter of several concerns regarding the 1994 and 1995 cost reports. The department has a contract with Ernst Young to audit the cost reports of its long-term health care facilities. In the case of the audit for the 1994 and 1995 cost reports filed by Countryside, Ernst Young, together with an accounts supervisor in the quality assurance unit of the department, participated in the "agreed upon procedures review" of those reports. When the audit was completed, Countryside was in bankruptcy. The plaintiffs were no longer operating the facility. The bankruptcy court appointed a trustee and a receiver/manager as administrator. The trustee sent a preliminary draft of the audit report to the plaintiffs outlining the proposed disallowances and a letter offering the plaintiffs the opportunity to explain why these proposed disallowances should be reduced before finalizing the audit report. Barry W. Hultman responded that the audit report was not valid, but he did not agree to meet with the department or discuss with the department the draft audit report.
On April 4, 1997, the department issued a notice of regulatory violations and proposed sanctions to the plaintiffs. On April 17, 1997, the plaintiffs filed an answer *231 denying each allegation of the notice. Hearings over the course of several days were held regarding this matter in October, November and December, 1997. The hearings were closed on December 3, 1997. The hearing officer filed a proposed final decision on November 25, 1998. The plaintiffs filed exceptions to the proposed decision. On December 31, 1998, the department overruled the exceptions and adopted the hearing officer's proposed final decision as its final decision. The department ordered that Dorothy Hultman be suspended from the medicaid program for a period of ten years and Barry W. Hultman be suspended from the medicaid program for a period of twenty years, or upon full payment of restitution, whichever is longer. It also ordered that the plaintiffs pay back the amount of overpayments by the department to them as set forth in the schedules annexed to the notice of violations, reduced by the amount of payroll taxes paid to the Internal Revenue Service by the bankruptcy trustee, and by $1000 posted in error.
The plaintiffs have timely appealed that administrative decision and they clearly have standing, because they are statutorily aggrieved.
In its notice to the plaintiffs of regulatory violations, the department specifically alleged that the plaintiffs: (1) knowingly and wilfully made or caused to be made false statements and false representations of material facts, for the purpose of claiming payments for services provided to medicaid beneficiaries by Countryside; (2) accepted payment for goods and services provided to medicaid beneficiaries which exceeds the amount authorized by law for such goods and services; (3) failed to adhere to conditions established by law for Countryside's participation in the medicaid program by engaging in practices that were inconsistent with sound fiscal and business practices, resulting in unnecessary costs to the medicaid program; (4) failed to comply with *232 medicaid provider agreement provisions regarding the maintenance of records; and (5) failed to comply with applicable provisions of the provider agreement, regulations and statutes governing reimbursement for medicaid costs.
At the hearings before the hearing officer, the plaintiffs were represented by counsel and had the opportunity to cross-examine the witnesses. The hearing officer made ninety-six specific findings of fact. Included were findings that the plaintiffs failed to maintain time records for Countryside employees, the salaries and wages paid to these employees were not supported by documentation, and salaries paid to these employees, including Barry W. Hultman, were not related to patient care. Among the costs in the cost reports that were disallowed were the expenses of a trip the plaintiffs made to India, meals bought at Hooters, the purchase of guns and ammunition, and the cost of supplies and materials for the plaintiffs' residence constructed at 82 Meadow Ridge in Avon. Also disallowed were accounts payable for longer than one year and expenses that exceeded the caps. The hearing officer further found that the testimony of Barry W. Hultman, as to salaries that were disallowed by Countryside itself, was not credible.
Based on these findings of fact, the hearing officer concluded that the department presented substantial evidence that the plaintiffs violated the state and federal medicaid regulations and the medicaid provider agreement by: (1) accepting reimbursement from the medicaid program for costs that were never paid by them; (2) claiming costs in their 1994 and 1995 cost reports and accepting payments from medicaid for these costs knowing they were not related to patient care; (3) failing to maintain documentation for expenditures and time records for persons to whom they paid *233
salaries or wages; and (4) failing to keep records necessary to allow audits of Countryside's records. He further concluded that the plaintiffs knowingly and wilfully made false representations in the 1994 and 1995 cost records for the purpose of claiming payments, thereby engaging in fraudulent acts. The hearing officer concluded that the plaintiffs' conduct violated §
As indicated previously, the recommended order of the hearing officer was that the plaintiffs be required to reimburse the department for overpayments as set forth in schedules I and II of the notice of violations, reduced by the amount of payroll taxes paid to the Internal Revenue Service by the bankruptcy trustee and by the $1000 that was posted in error. The hearing officer further recommended that the commissioner of social services suspend both plaintiffs from the medicaid program. *234
The findings of fact and the proposed order of the hearing officer were adopted and approved by the commissioner of social services.
The plaintiffs assert the following grounds for appeal: (1) the hearing officer's findings of fact are based entirely on unreliable hearsay; (2) the conclusions of law of the decision do not logically or reasonably follow from the facts; (3) the order lacks adequate standards for the calculation of the overpayments by the department to the plaintiffs, and the recommended suspension is overzealous; and (4) the plaintiffs' constitutional rights to due process were hindered due to the vast amount of publicity prior to both the hearing and the decision.
Initially, it is important to state the standard of review for appeals from administrative agencies. General Statutes §
First, there is no specific prohibition against hearsay evidence in the Uniform Administrative Procedure Act, General Statutes §
Second, some of the evidence that the plaintiffs claim was hearsay involved exceptions to the hearsay rule. For example, audit work papers and attached invoices were properly admitted as business records, or public records, or both.
Third, the plaintiffs make a broad claim of error based upon the admission of hearsay evidence without identifying whether they objected to that particular evidence. *236 Further, in their brief, they do not cite particular pages in the transcript of the hearing where the hearing officer made evidentiary rulings that the plaintiffs wish to have the court review.
Section
First, the applicable standard of proof is not proof beyond a reasonable doubt, but proof by clear and convincing evidence, and it was by this latter standard the hearing officer found to establish fraud. Second, "[i]ntent may be inferred from facts and circumstances." (Internal quotation marks omitted.) Banks v. Thomas,
The department's decision also found additional grounds for imposing sanctions. The medicaid provider agreement requires medicaid providers to comply with medicaid standards as prescribed by the federal government and to "keep such records as are necessary to allow audits of medical and other records." Further, a relevant state regulation requires that medicaid providers maintain supporting records that must be available for review for ten years from the date of the previous audit. Regs., Conn. State Agencies §
The department ordered that the plaintiffs make restitution for the amount of overpayments set forth in schedules I and II of the notice of violations. Overpayments reflected in those schedules were determined by the hearing officer based upon reliable and credible evidence. These were the payments the plaintiffs could not establish that they were entitled to under the medicaid program. After adjusting for the disallowed costs, the allowable costs are put into the formula for determining nursing home rates. The proper per diem rate is then calculated. The per diem rate that results from this calculation is then deducted from the per diem rate that actually was paid based on false and fraudulent cost reports submitted by the plaintiffs. The difference in these two per diem rates is then multiplied by the number of medicaid patient days. The product of that multiplication is the total overpayment which the plaintiffs are required to reimburse the department. This manner of calculation is consistent with department practices and regulations.
The plaintiffs also claim that the plaintiffs' suspension from the medicaid program is "overzealous." *239
Section
There is no question that in an administrative agency proceeding, the parties are entitled to be heard and have *240
the issues determined by an impartial and unbiased tribunal. Huck v.Inland Wetlands Watercourses Agency,
At the hearing of this appeal, the plaintiffs never requested the opportunity to present evidence to show that the aforementioned news items created an actual bias in the hearing officer. Transportation General,Inc. v. Ins. Dept.,