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Casey Ball Supports Coordination, LLC v. Department of Human Services

Commonwealth Court of Pennsylvania

April 18, 2017

Casey Ball Supports Coordination, LLC, Petitioner
v.
Department of Human Services, Respondent

          Submitted: November 4, 2016

          BEFORE: HONORABLE P. KEVIN BROBSON, Judge HONORABLE MICHAEL H. WOJCIK, Judge HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge

          OPINION

          P. KEVIN BROBSON, Judge

         Petitioner Casey Ball Supports Coordination, LLC (Petitioner), petitions for review of an order of the Chief Administrative Law Judge of the Department of Human Services (Department), Bureau of Hearings and Appeals (BHA), dated February 1, 2016, which adopted the recommendation of an Administrative Law Judge (ALJ), thereby denying Petitioner's appeal. Petitioner had appealed from a decision of the Department's Office of Development Programs (ODP), denying Petitioner's application for enrollment as a provider under the Consolidated Waiver and the Person/Family Directed Support (P/FDS) Waiver Programs. We now affirm.

         As background, ODP is responsible for the administration and oversight of Medical Assistance (MA) Programs for home and community based services (HCBS), specifically the Consolidated Waiver Program, the P/FDS Waiver Program, and the Adult Autism Wavier Program (collectively the Waivers Programs).[1] Through the Waivers Programs, individuals who are eligible to receive healthcare services in an institution for the intellectually disabled may instead receive comparable services in their home and community. Within the Department's ODP, the Bureau of Autism Services (BAS) oversees the Adult Autism Waiver Program, and the Bureau of Supports for People with Intellectual Disabilities (BSPID) oversees the Consolidated Waiver and P/FDS Waiver Programs. A provider under the Adult Autism Waiver Program is referred to as a Supports Coordination Agency (SCA), 55 Pa. Code § 51.29, whereas a provider under the Consolidated Waiver or P/FDS Waiver Programs is referred to as a Supports Coordination Organization (SCO), 55 Pa. Code § 51.28.

         Prior to Petitioner submitting the subject application for enrollment as an SCO under the Consolidated Waiver and P/FDS Waiver Programs, Petitioner operated as an SCA under the Adult Autism Waiver Program beginning in April 2013. The Department requires SCAs to document their activities in the Home and Community Services Information System (HCSIS).[2] HCSIS is the central database that providers and the Department use in order to verify that a provider provided services and to substantiate billing, so that the Department may render payment to the provider. In October 2013, BAS conducted an inspection of Petitioner's operations, including a review of service notes Petitioner entered into the HCSIS. As a result of the review, BAS identified service notes that were either missing or lacked sufficient specificity. BAS personnel met with Petitioner on January 7, 2014, to address the deficiencies identified during the inspection, and on January 16, 2014, BAS sent Petitioner a formal Corrective Action Plan (CAP), which the Department sometimes also refers to as a "Plan of Correction" (PoC).[3]As part of the CAP, BAS requested that Petitioner amend 247 service notes in HCSIS and provide BAS with those revisions on an Excel spreadsheet. Although BAS set January 31, 2014, as the deadline for complying with the CAP, BAS ultimately extended the deadline until April 30, 2014. Petitioner provided BAS with amended service notes on an Excel spreadsheet by the deadline for the submission, but Petitioner did not enter the amended service notes into HCSIS by that date. On May 2, 2014, BAS directed Petitioner to enter all of the amended service notes into HCSIS. Petitioner did not have all of the amended service notes entered into the system until July 2014.

         In January 2014, Petitioner also submitted an application to BSPID, seeking to become enrolled as an SCO under the Consolidated Waiver and P/FDS Waiver Programs. In June 2014, BSPID contacted BAS to discuss Petitioner's CAP and alleged noncompliance with the CAP. By notice dated August 25, 2014, the Department denied Petitioner's application and informed Petitioner that

ODP cannot approve this application to become a qualified SCO due to failure to comply with Chapter 51 regulations and Waiver requirements.
As part of the qualification process within ODP, an inquiry was made with [BAS] in regards to the [SCA] services that your organization provides. According to BAS, your SCA was monitored on October 22, 2013, which resulted in a [CAP] being issued on January 16, 2014. The CAP was to be completed by January 24, 2014. To date your SCA has failed to comply with items on the CAP. [BAS'] Adult Autism Waiver says "When BAS identifies that a provider is not meeting waiver requirements, BAS requires the provider to develop a CAP and monitors whether the plan is implemented."

(Reproduced Record (R.R.) at 165a.) The notice also informed Petitioner that the requirements and qualifications to be a qualified SCO for ODP include cooperating "with monitoring conducted by ODP or its designees, which includes complying with the CAP." (Id.) The notice also informed Petitioner that 55 Pa. Code Chapter 51, pertaining to ODP Home and Community-Based Services, requires providers, including SCOs and SCAs, to complete and comply with any CAP;[4]remediate each finding discovered during a monitoring within 30 days of receipt of the CAP;[5] and submit information which supports that the claim for payment is true, accurate, and complete.[6] (Id.)

         Petitioner appealed the denial to BHA. An ALJ conducted a hearing on November 12, 2015, at which the Department presented the testimony of Patrick Keating, Human Services Program Representative, BAS; Heather Ruppe, Regional Supervisor, BAS; and Sonya Hipple, Human Services Representative, ODP. Petitioner presented the testimony of Casey Ball, Petitioner's CEO. At the hearing, the Department took the positon that it correctly denied Petitioner's application because Petitioner failed to comply with a CAP relating to Adult Autism Waiver services when it did not enter amended service notes into HCSIS by April 30, 2014. Petitioner countered that the Department incorrectly denied its application because (1) the Autism Waiver CAP only required her to submit the amended service notes on an Excel spreadsheet and did not require Petitioner to enter the amended service notes in HCSIS; and (2) if the CAP required Petitioner to enter the amended service notes in HCSIS, then it substantially complied with the CAP by submitting the amended service notes in the Excel spreadsheet. The ALJ found that the CAP required Petitioner to enter the amended service notes into HCSIS by the deadline of April 30, 2014. Petitioner failed to do so, and, therefore, Petitioner violated the CAP.[7] As to Petitioner's reliance on the concept of substantial compliance, the ALJ also concluded that whether Petitioner performed some parts of the CAP did not negate the fact that it did not fully comply with the CAP. The ALJ also found that Petitioner's "noncompliance with the BAS CAP constituted multiple regulatory violations and conflicted with the 'Assurances and Attestations' required in the application for the Consolidated and P/FDS Waivers." (R.R. at 194a.) Furthermore, the ALJ found that "it was reasonable for the Department to believe that Petitioner would not be able to comply with the Department's regulations if permitted to provide services under the Consolidated and P/FDS Waivers." (Id.) For those reasons, the ALJ concluded that the Department did not abuse its discretion in denying Petitioner's application and recommended that Petitioner's appeal be denied.

         By order dated February 1, 2016, BHA's Chief Administrative Law Judge adopted the ALJ's recommendation in its entirety, thereby denying Petitioner's appeal. Petitioner then petitioned this Court for review.

         On appeal, [8] Petitioner argues that the Department erred in denying Petitioner's application to become a provider under the Consolidated Waiver and P/FDS Waiver Programs because (1) Petitioner substantially complied with BAS' CAP and (2) the Department denied the application based on Petitioner's "nonmaterial and inadvertent delay" in entering the amended service notes into HCSIS. (Petitioner's Br. at 6.) The Department counters generally by arguing that it properly exercised its discretion under 55 Pa. Code § 1101.42 when it denied Petitioner's application, because the Department had previously cited Petitioner for regulatory violations regarding its existing operation under the Adult Autism Waiver Program and Petitioner failed to comply with the CAP relating to those regulatory violations. With regard to Petitioner's specific arguments, the Department contends that Petitioner was required to comply fully with the CAP, and, therefore, it is irrelevant whether Petitioner substantially complied or whether Petitioner's failure to enter the amended service notes into HCSIS constituted a nonmaterial violation of the CAP.[9]

         At the outset, we note that 55 Pa. Code § 1101.42(a), pertaining to prerequisites for participation in the MA Program, provides that, in order to be eligible, "Commonwealth-based providers shall be currently licensed and registered or certified . . . by the appropriate State agency, complete the enrollment form, sign the provider agreement specified by the Department, and meet additional requirements described in this chapter and the separate chapters relating to each provider type." The regulations further provide that even if a prospective provider meets those requirements, "[t]he Department may at its discretion refuse to enter into a provider agreement." Id. This Court has recognized the Department's lawful discretion in this area and has held that prospective entities have no protected property interest in, nor entitlement to participate in, the MA Program. See Stanton-Negley Drug Co. v. Dep't of Pub. Welfare, 943 A.2d 377, 384 (Pa. Cmwlth. 1984).

         Although Petitioner appears to attempt to frame the issue as whether the Department committed an error of law in denying its application to participate in the Consolidated Waiver and P/FDS Waiver Programs, the issue is more appropriately framed as whether the Department abused its discretion ...


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