Petition of Metro Treatment of New Hampshire, L.P.

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This is Case 20 25 0 0 6 4. Petition of Metro Treatment of New Hampshire lp. Morning Attorney Rogers, I understand you reserve one minute. Uh, two minutes. Your two Minutes. I'm sorry. Yes. Uh, good afternoon. Uh, may it please the court, Cassie Rogers of she and Finny Bain Green on behalf of, uh, Metro Treatment of New Hampshire lp. We are here today on a Rule 10 petition, appealing a decision from the Department of Health and Human Services Administrative Appeal Unit, uh, a a u, it's determination that it has jurisdiction over, uh, managed care organizations, uh, payment disputes with their healthcare providers. Uh, the question before the court is whether the a a U acted illegally in determining it had jurisdiction over an MCO and payment, um, dispute with its healthcare provider here, AmeriHealth care attacks the MCO and metro treatment, the healthcare provider, uh, Metro's position is yes, that the a EO did act illegally in finding jurisdiction. And that argument is primarily twofold. First, that, Well, these, these disputes happen all the time, don't they? And is the a, has the AAU typically sat as on these cases without objection. I don't have a, uh, his, the historic account of what, how many have been brought and, and whatnot. But I do know that there have been many brought, uh, in conjunction with this, that there seemed to be a, perhaps a little bit more of a surge in audit, uh, experience or, um, auditing at the time. Uh, and that metro raises on a number of accounts, one faced with audits by various MCOs. Um, but, uh, to your point, contract disputes happen all the time. And the question is here where there's two private entities at play, is it the case that the a A U should, the DAHS should be the final arbiter of contract disputes between private parties simply because Medicaid eligible recipients are, are at, um, be providing services? And is, is that really enough under the enabling legislation to, to provide that jurisdiction necessary in order to extend the jurisdiction here? So It's your, your position at this $38,000 dispute should go to Superior Court, Correct? Yes. And so, looking to the twofold, there's No dispute resolution clause in the MCO contract, Uh, I believe With providers, and I would, would, uh, turn that question perhaps to counsel as well, um, to correct me if I misspeak. But, um, it's my understanding that in this particular one, there was not a, a arbitration provision, et cetera. That's correct. Uh, so primarily Metro's argument for lack of jurisdiction is twofold. One, that the enabling legislation here, uh, does not provide the, the, for the breadth that the, the state and the Mari Health provides, that it, it does. Um, and two, that even putting aside the enabling legislation, uh, the terms of the enabling legislation, what the legislation provides, specifically RSA 1 26, uh, a five, um, eight provides, which all parties agree is the, uh, NA legislation of interest. What that provides is that the commissioner of the Department of Health and Human Services is to establish a appeals process for matters that has jurisdiction over and here on review, we, we have provided a fair amount of the making, uh, in the briefs. Um, there is no process established by the commissioner for disputes of this nature. Uh, to provide a little bit of a basis for our discussion today, a little bit of a background regarding this, the dispute underpinning this jurisdictional question, uh, this is Metro treatment is a opioid treatment provider. It provides medication assisted treatment to Medicaid eligible patients. Uh, some of those Medicaid eligible individuals are enrolled with AmeriHealth. Uh, the relationship between AmeriHealth and, uh, Metro is governed by an ancillary services agreement. Uh, and in 2022, AmeriHealth audited 10 patient records of Metro and determined and issued a determination that, uh, some of the sums were to be disallowed or disallowed. And as such, uh, about 36 as, as you've identified, $37,000, uh, had been overpaid and would need to be recouped. So is Metro certified or licensed by the department? Metro is. So why, why then doesn't it fall under the, uh, RA 1 26, A five eight? So I, I presume what I'll refer to as turning to that legislation, there's four categories outlined within that legislation. Um, RSA 1 26, a five eight, um, one being in individuals and provided services, um, are applying for services from the department or its contract providers, two being what you have identified as the providers license or, or certified. Um, and here we're looking at questions of jurisdiction. And the, the precedent that's acknowledged by all parties requiring for specificity in particularity in the, in the enabling legislation, simply, we don't have that here first. Uh, Metro would argue that that provision is really looking to, um, appeals processes for challenging licensing decisions. And that's not what we have here. Uh, and we in fact, do have that in the rulemaking established that there is an appeals process for licensing decisions. But second is the question of, of whether it extends to these types of disputes. We look at the rulemaking that is then, um, enacted by the commissioner, promulgated by the commissioner. And here the rulemaking provides that the definition of appeals requires an action by the department or a decision by the department. And here, that's noticeability lacking. We don't have have an action by the department. We don't have a decision by the department. Um, and accordingly, under, under the DHH S'S own rules, which they're obligated to follow, it, it does not fall within the Is, is, is, are those rules dispositive against the plain language of the statute? Well, first I would argue that, again, as I mentioned, that the plan language provides more so to licensing and, and certification for, For section two of correct paragraph eight. Yes. What about section four? So this is to section four. We're talking about, again, turning to the, the precedent that we have, uh, specifically noting that it's meant to be specific. It's meant to be particular. Um, and here we have this catchall provision, or that's what I'll refer to it as in, in the fourth. And what, what the state and AmeriHealth are relying upon in making the argument that we are falling in that catchall provision is this argument that, uh, DHHS is the Medicaid agency, that it's tasked with administering Medicaid and ensuring that funds are appropriately spent. Um, but but that application to say that this broad, uh, it broad grant of, uh, oversight is sufficient to provide the jurisdiction necessary is directly contrary to the precedent which is providing for particularity and, and the circumstances. What the Precedent are you Referring to? Yes. So I'm looking to appeal of campaign for rate payers rights 1 62, NH 2 45, providing that tribunal that exercises. So a tribunal like the A A U that exercises a limited in statutory jurisdiction is without jurisdiction to act unless it does. So under the precise circumstances and in the manner particularly described by the enabling legislation, Well, it's particularly described any other matter within the jurisdiction or the department. I mean, it's broad, but it's described. I Mean, and, and so I I, that I, perhaps that's just where we have a disagreement because particularly described as exactly, it seems to contradict to broad. So to say it's particular in broad seemed like too con contradictory adjectives. Well, Something can be particularly described and broad, Broadly particular Well here, turning to the catchall provision, um, specifically looking at, uh, again, the, it's not just that any other matters within the jurisdiction. We can, if we, if we were to concede that that is broadly particular, if that's how we coined it, um, if we were to concede that, again, what the state and the Mayor health is relying upon is this grant of administration and or, uh, ensuring appropriate, uh, expenditure of the Medicaid funds. And there are numerous examples throughout the briefing of how one administers the Medicaid program. Administration includes certification, it includes making requirements of contracts, it includes, um, processes for termination. And here administration as it extends to this dispute, was for, uh, a grant of authority for the MCOs to enter into these contracts. It did not, nowhere does it provide that the grant then extends to, uh, DHHS providing or serving as the final arbiter of contractual disputes between private parties. But Medicaid is within the jurisdiction of the Department of Health and Human Services, correct? Correct. And, and, um, ensuring that Medicaid dollars are spent appropriately is within the jurisdiction of the Department of Health, and that's Correct. So how is this dispute not within the jurisdiction of the Department of Health and Human Services? Yes. And so it's, it's the question of when is it enough insurance and what are the mechanisms of insurance, right? So here, insurance included the, the MCO, excuse me, the DHHS reviewing MCO contracts. So they have specific requirements of what go into MCO contracts. And, and then the other side of it, they provide licensure requirements. They review termination, uh, decisions on the provider side. So there are multiple different mechanisms, and the list goes on about how we ensure, but ensuring here was it stopped at entering into an agreement with certain provisions in place, agreements that DHS reviews and, and, and then to say that now we're in a private contract dispute, and DHHS gets to either hover above and or jump to the end to make a determination when DHHS can actually do these exact, uh, recoupment efforts itself. And in that case, it, it can do. So there's no challenge there. But here, what we're challenging is DHHS coming into private contract dispute, which quite frankly, as we, they didn't come into it. Didn't your client file the appeal? Yes. And, and I presume, if I'm guessing where Justice Conaway you are going, as regarding a waiver question, is that where No, because I think you preserved that, but it's not like DHHS intervened and required that step, did they? Well, I think that is what, and I, I don't wanna speak for counsel for the state in our mental health, but I think that that is what I understand the argument to be, that it is required for there to be a process. The process that's been designated is the very one that we're here disputing. Um, and so we would say, no, it's not, uh, it, the, the provisions that are in place are not the required provisions. Um, and perhaps that they eventually can go through the rulemaking process to make an appeals process for this very circumstance. But you have filed an action in the Superior Court if you disagreed with that determination. I missed the very beginning. Could you have filed an action yourself in the, the Superior Court while this, while this proceeding was occurring? Is that your question? No. Instead of, instead of, yeah. Uh, and well, I think that the concern was at the time, any argument regarding un timeliness or waiver, um, certainly did not wanna lose the right to challenge the letter that was provided to AmeriHealth. Uh, following Ameri Health's, um, excuse me, to Metro following Ameri Health's internal audit, was that, uh, the process was to go through the state hearing, um, process. How does the doctrine of administrative loss apply to this case? So turning to administrative loss, if the court were to find that, um, while Metro's position is that the, uh, enabling legislation is not ambiguous as to it, it doesn't provide the jurisdiction necessary, but if the court were to say the scope of jurisdiction is ambiguous here, what we'll look to is since at least 2007, the Department of Health and Human Services has consistently applied, uh, particular definition language may pause There. What's your position on It? Is that perhaps there's a concern regarding that last section, at least the catchall provision, uh, regarding how, what the scope of that jurisdictional of any other matter within the jurisdiction is. And if, if there is a question in the court's mind about what the scope of that is, then at the very least, that's ambiguous. And what's been consistent since 2007, at the very least, is that the appeal is defined to include department action or department decision. And then we go through it. You look at the purpose, it also includes, uh, department action or department decision. And it goes on from there. There's one exception, um, that provides that, uh, contracting providers, service providers are included within the definition of, uh, within the definition of the department. That's an one small exception. And it even shows that the commissioner knew how to discuss these very parties. And it has opted not to establish an appeals process to date. And accordingly, applying the doctrine of Administrative gloss, we have to provide deference to the administrative agency. And accordingly, uh, there would be a finding of no jurisdiction with the A A U, because looking at the rules, you need department action. And we don't have that here. Your red light's on. Oh, Sorry about that.

Um, attorney Tierney, I understand you re uh, you're gonna have 10 minutes to argue, and Attorney Trick will have five. Correct? Thank you. Your honors, Michael Tierney here for the AmeriHealth Caritas, who's one of the managed care organizations. I have Attorney Ewing, my law partner with me, and we also have Mary Trick, uh, from the Attorney General's office, who will be arguing separately for the State Department of Health Human Services. What we're here about is not a contract dispute. What we're here about is what do the, uh, department of Health Human Services rules mean? What do these Medicaid rules mean? And does the, um, administrative Appeals Unit have jurisdiction to determine what these rules mean? You can see in the certified record pages, you know, four through 13, all the various Medicaid rules that were violated by Metro and would likely continue to be violated by Metro if we had not, um, done this audit. But the case we're here at the Supreme Court about isn't about whether these particular Health and Human Services rules were violated, and whether AmeriHealth is interpreting these rules properly. What this case is about is who has the authority to have this appeal? Does the Administrative Appeals Unit have that authority? Luckily, we have just, we get there, what, What decisions actually being appealed? What's, there hasn't been a decision, right? Or is it just the position of the parties? Well, AmeriHealth determined that the rules were violated and therefore was entitled to a recoupment. Uh, metro disagrees with that, and that was what was appealed to the a a U, whether these rule violations occurred entitling AmeriHealth to a recoupment. When you put it that way, it sounds like a dispute between two private par entities. So it is not a simple contract dispute. It's whether these rules were violated leading to potential waste, fraud, and abuse of Medicaid funds. And in order to determine whether the a a U has authority to decide whether there has been waste, fraud, and abuse of Medicaid funds, we have to look to the statute. Okay. And the statute isn't, isn't that long in its relevant portion. And, and in fact, for this court, there's only six words that, that the court needs to be focused on. Okay? The statute very clearly gives, um, authority to the A A U, okay. To any providers. So any providers, there's no limitation on what that provider may do, what type of that authority is to any providers. And then the statute goes on to, uh, broadly say, or any other matter. If you look at the a U'S decision, which has been appealed, the hearing officer determined that under both provisions of the statute, that the providers need to bring their appeal to the A A u, uh, metro is a provider, or it could fit under the catchall. Okay? So we have specific statutory authority, although it is specifically brought, absolutely brought, it's undisputed that what is at issue here is whether Health and Human Services Administrative Appeals Unit okay, has the authority to consider whether Medicaid rules and Medicaid funds are being interpreted and spent incorrectly. Um, and all we need to do is look at that statute. If we wanted to go further, which is not necessary, but if we wanted to go further and talk about the contract that the parties had, um, the contract that the parties had specifically required Metro as part of, you know, participating in its program with AmeriHealth to bring any appeals to the A A U. And so metro is contractually required to go to the A A U, the court doesn't need to get there. But that's sort of the additional reason. Of course, you're going to go to the A A U, and it absolutely makes sense when you're talking about whether these Healthy Human Services rules are being properly applied by AmeriHealth, that you have one agency that is making that determination, the Department of Health and Human Services, this isn't just even state law that requires just the Department of Health and Human Services make that determination. Federal law 42 CFR 4 31 requires that every state just has one agency making these determinations, and that it can't go to 17 different places. But shouldn't there have been a determination by the commissioner first that would predicate the a a u appeal? So the commissioner okay, can determine whether, um, the commissioner is going to make a determination on these rules, or he can designate, or she can designate a, um, hearing officer to make the determination. In the first instance, the statute is clear that the commissioner's determination is the a, a U'S determination. The commissioner can take that back, or the commissioner can allow the hearing officer to make that determination. So they're essentially at the same level. Absolutely, yes. So you've focused on the statutory language saying, we don't need to get to the, to the contract. But as to the statute attorney Rogers points to the administrative rules, meaning the procedural rules. You've talked about substantive rules. What role do they play in resolving the question before us? Two points. They play no role whatsoever, because you cannot, by administrative rules, take away jurisdiction that has been granted by statute. However, the rules also don't say what Attorney Rogers suggest. They say the rules. And in particular, HEC 2 0 1 13 says that in appeals such as this, the department's contract service providers is the department for the purpose of this appeal. We have that language right there on 2 0 1 point 13. Okay? And then it goes on to 2 0 1 13 B. Only when the department and the contract service provider are adverse should the department and contract service provider not be considered synonymous. So when there's language in the rules saying the department, this decision, the department, this decision, the department that, okay, 2 0 1 13 A says that AmeriHealth and department are the same thing, unless, and until the department says, Nope, we're different AmeriHealth, you're wrong. We're taking an adverse position. So the argument That the, so then this under 2 0 1 0 1 would be an appeal of a decision of the department Under that interpretation, Correct? Correct. So an appeal of the decision of the department includes Ameri Health in this part for these particular facts. Um, and, and you couldn't, you couldn't by rule, um, change what the statute grant says authority, uh, but this, the, the rules absolutely allow this sort of appeal as has happened. Um, the final point, and please interrupt me if, if the court has particular questions. Um, but the final point that I just wanna make is that this is not something that is private between different parties. This is about whether these particular rules, which the State Department of Health and Human Services has adopted and has said you Amerit Health should not be paying for services if the providers don't comply with the rules. Um, whether the Department of Health and Human Services has any say in what their rules mean, I think it should be obvious that the rules should be applied the same throughout the state, throughout all the different providers. Okay? And that if AmeriHealth is somehow misinterpreting these rules, clearly the Department of Health and Human Services through the Administrative Appeals Unit should have a say either through the hearing officer or through the commissioner saying, well, hold on a second. You didn't apply these rules correctly. We're interpreting it this way. Um, we think, of course we determine the, um, rules correctly. Uh, but it is the, uh, administrative Appeals Unit that makes that determination not some third, fourth, or fifth party who doesn't have that experience. In the nuances of Medicaid rules. I'm probably under time. Um, but I think it's probably better to sit down unless the court has any questions. Thank you. Attorney Tierney, May you please the court. My name's Mary Trick, and I'm here on the depart on behalf of the Department for Health and Human Services. I'm gonna try not to repeat, um, what my other, uh, colleagues have talked about, but I just want to, uh, reiterate the position of the department that the state Medicaid program and administration and oversight of the state Medicaid program is within the jurisdiction of the department. Is It your experience that the a a U has resolved or heard these disputes in the, in the past on a, on a regular basis? It's definitely not in the record. That is my understanding. But I do wanna preface that with, I don't work at the, at the department, and I haven't handled one of these before, but that is my understanding. Um, certainly the a a u handles these disputes outside of the managed care context, right? So if the department is directly paying the service provider and determines, uh, that an overpayment was made, that that dispute goes to the, goes to the a A U. And I think that that actually goes to my bigger point, which is the state's use of managed care does not change its obligation under federal law and its obligations to ensure, um, and ensure it has oversight over the MCOs to not lose its federal funding. And so it's not by accident that the legislative delegation is broad, and it's certainly at the very heart of that delegation when we're talking about oversight of the federal and state joint Medicaid program. I did wanna go to a question that Justice Donovan asked about the merits of this dispute. So the dispute hasn't obviously been resolved or proceeded to the merits, but, um, and so the A A U and the state would not take a position on who's correct at this point, right? But we have Metro, the service provider saying that the MCO is refusing to pay or trying to claw money back, that they paid for services to Medicaid recipients that they should have paid for, right? That the Medicaid that they provided properly to Medicaid patients. And the MCO is trying to get that money back. And the MCO is saying that the service provider is providing, and was providing client services out of compliance with, um, I believe the Medicaid assistant treatment rules. So missing medical exams, uh, missing counseling, treatment plan problems, those sorts of things. That is a dispute both within the jurisdiction of the department and certainly a dispute that affects Medicaid patients. Right? And so that to, uh, justice McDonald's point, I don't think we have to get to the question about if the rules were not co-extensive with the jurisdiction of the statute, because here they are. This is a, clearly a dispute within the jurisdiction and clearly a dispute that has effects on Medicaid patients. But to that point, do you, do you agree with the argument that Attorney Rogers made in the brief in, I think here that aaus interpretation of the rules is a should be a courted deference? Yes. I interpretation, I'm sorry. The statute should be a courted deference, yes. Yes. But here the rules are likewise broad. So for ease of discussion, the rules mostly talk about department decisions, but then it has this carve out that says, decisions made by our contract service providers, right? When we contact, correct those decisions out to the extent that the appeals affect any people receiving services, that those are decisions of the department. Um, so I, uh, will choose not to labor the point and, uh, ask that this court affirm the finding of jurisdiction and just remand it back for litigation of the substance of the dispute. Thank you, Attorney Trick. Attorney Rogers, Just a few brief comments just picking up, uh, where Attorney Trick just left off, um, regarding the, the comment on effect, the carve out provision, um, as, as been briefed, um, the, the effect is present tense. Uh, and I think that that is notable 'cause we're talking about an an effect on individuals. And, and I wanna make sure I quote this right, um, departments, so reference the department at HEC two C 200 shall include the department's contract service providers when they're participating in appeal proceedings affecting any individual applying for or receiving services as described in RSA 1 26 8 5 3. And so affecting is present tense first. And, and I believe, I understand the state's argument to be that it's affecting, uh, the Medicaid program has the, the, the recouped funds are going back to be used for other services. But, but that's not really what the, the affecting here is providing for, it's providing for affecting any individual, applying for or receiving services. And that's the same language that's used in the RSA 1 26, A five, uh, eight section. And when we look at what I refer to as category one, so we're talking about individuals who were at that time applying for or receiving services, not the hypothetical down the line. Um, and, and this, this carve out the very fact that, you know, we're distinguishing the affecting language, I think demonstrates that there could be more precise language by rulemaking here. If, if the, the commissioner is in fact obligated to provide an appeals process for, uh, disputes of this nature, it could do so, um, if it, if it, if the court were to find jurisdiction lied there, um, but it hasn't done. So it provides one specific carve out in its metro's position that it doesn't extend to the situation here. Um, but I wanted to touch on a question regarding the impact of the regulation, the rules and regulations. Um, in light of the statutory language, uh, the statutory language provides for the commissioner to establish an appeals process for, for those four categories. And as such, the, the rulemaking can't just be set aside regardless of what the, the enabling legislation as to jurisdiction provides. 'cause we need to have a appeals process established. And as the rule is demonstrate, we don't have one, we, we've identified one particular carve out that carve out doesn't apply. And so for a finding of jurisdiction at the a aau, we need an appeals process defined. Otherwise, it's, it's essentially skipping the rulemaking step that's Been the rules rewrite the statute, Sorry, the rules Or the lack thereof cannot rewrite the statute, correct? Yes, that's correct. Your red light. Yes. Thank you very much. Okay. This case is submitted. Thank you very much, counsel. Uh, court invite.