What is the doctrine of exhaustion of administrative remedies? And why is it important?
If you are a Medicaid or Medicare provider (which, most likely, you are if you are reading this blog), then knowing your administrative remedies is vital. Specifically, you need to know your administrative remedies if you receive an “adverse determination” by the “Department.” I have placed “adverse determination” and the “Department” in quotation marks because these are defined terms in the North Carolina statutes and federal regulations.
What are administrative remedies? If you have been damaged by a decision by a state agency then you have rights to recoup for the damages.
However, just like in the game of Chess, there are rules…procedures to follow…you cannot bring your castle out until the pawn in front of it has moved.
Similarly, you cannot jump to NC Supreme Court without beginning at the lowest court.
What is an adverse determination?
In Medicaid, NCGS 108C-2 defines “Adverse determination” as “a final decision by the Department to deny, terminate, suspend, reduce, or recoup a Medicaid payment or to deny, terminate, or suspend a provider’s or applicant’s participation in the Medical Assistance Program.”
In Medicare, sometimes the phrase “final adverse action” applies. But, basically an adverse determination in Medicaid and Medicare is a decision by [whatever entity] that adversely affects you, your Medicare/caid contract or reimbursements.
What is the definition of the Department?
NCGS 108C-2 defines the “Department,” as “The North Carolina Department of Health and Human Services, its legally authorized agents, contractors, or vendors who acting within the scope of their authorized activities, assess, authorize, manage, review, audit, monitor, or provide services pursuant to Title XIX or XXI of the Social Security Act, the North Carolina State Plan of Medical Assistance, the North Carolina State Plan of the Health Insurance Program for Children, or any waivers of the federal Medicaid Act granted by the United States Department of Health and Human Services.”
On the federal level, the Department would be the Centers for Medicare and Medicaid (CMS) and its agents, contractors and/or vendors.
So, an adverse decision is any final decision by DHHS….OR any of its vendors (Public Consulting Group (PCG), Carolinas Center for Medical Excellence (CCME), HMS, Computer Sciences Corporation (CSC), or any of the 10 managed care organizations (MCOs) (Alliance, Centerpointe, Smokey Mountain Center, Sandhills, East Carolina Behavioral Health, MeckLink, Cardinal Innovations, Eastpointe, CoastalCare, and Partners).
For example, PCG tells a dentist that he/she owes $500,000 in overpayments to the State. The notice of overpayment is an adverse determination by the Department as defined in the general statutes.
For example, Smokey Mountain Center (SMC) tells a provider that it will no longer contract with the provider as of March 15, 2014. SMC’s decision to not contract with the provider is an adverse determination by the Department as defined in the general statutes.
For example, CCME tells you that you are subject to prepayment review under NCGS 108C-7, which results in DHHS withholding Medicaid reimbursements. The notice of suspension of payments is an adverse determination by the Department, as defined in the general statutes (not the fact that you were placed on prepayment review because the placement on prepayment review is not appealable, but the determination that Medicaid reimbursements will be withheld).
The doctrine of exhaustion of administrative remedies is, in essence, a party must satisfy five conditions before turning to the courts: “(1) the person must be aggrieved; (2) there must be a contested case; (3) there must be a final agency decision; (4) administrative remedies must be exhausted; and (5) no other adequate procedure for judicial review can be provided by another statute.” Huang v. N.C. State Univ., 107 N.C. App. 710, 713, 421 S.E.2d 812, 814 (1992) (citing Dyer v. Bradshaw, 54 N.C. App. 136, 138, 282 S.E.2d 548, 550 (1981)
Move your pawn before moving your castle.
Typically, if a party has not exhausted its administrative remedies, the party cannot bring a claim before the courts. However, NC courts have recognized two exceptions that I will explain in a moment.
If you bring a lawsuit based on the adverse determination by the Department, do you go to state Superior Court? No.
In North Carolina, we are lucky to have the Office of Administrative Hearings (OAH). OAH is fantastic because the judges at OAH, Administrative Law Judges (ALJs) have immense Medicaid experience. OAH is a court of limited jurisdiction, meaning that only if a NC statute allows OAH to hear the case is OAH allowed to hear the case. One facet of OAH’s jurisdiction is adverse determinations by DHHS, its agents, vendors or independent contractors. Not all states have an administrative court system, and we are lucky to have an accomplished administrative court system. Our ALJs are well-versed in Medicaid, so, most likely, your issue you bring to OAH will be one already heard by the court.
Another great thing about OAH, is that OAH publishes some opinions. So you can review some published opinions prior to your hearing. For the most part, the ALJs are quite consistent in rulings. For the published opinions of OAH, click here. And, BTW, if you want to review only cases involving the Department of Health and Human Services, scroll down to the cases with the acronym: DHR. As you can see, OAH listens to cases involving many different state agencies.
So, let’s review:
If you receive an adverse determination by any state or federal agency, its contractors, vendors and/or independent contractors, you have the right to appeal the adverse determination. However, you MAY need to exhaust your administrative remedies prior to bringing the action in OAH. In other words, if the agency’s contractor, vendor, and/or independent contractor notifies you of an adverse determination, check with the contractor, vendor and/or independent contractor for informal appeals.
There are, however, some small exceptions. (Remember the knights can jump over your pawns. So can the Queen).
Number 1: Inadequacy.
If the informal administrative appeal process would be inadequate for your remedies then you are not required to exhaust the administrative remedies prior to going to the courts.
A remedy is inadequate “unless it is ‘calculated to give relief more or less commensurate with the claim.’” Huang v. N.C. State Univ., 107 N.C. App. 710, 713, 421 S.E.2d 812, 814 (1992) (citing Dyer v. Bradshaw, 54 N.C. App. 136, 138, 282 S.E.2d 548, 550 (1981).
An example of inadequacy would be if you are seeking monetary damages and the agency is powerless to grant such relief.
The phrase “monetary damages” means that you are seeking money. The agency owes you money and you are seeking the money. Or if you were caused monetary damages because of the agencies actions. For example, your Medicaid reimbursements were suspended. As a result, you fired staff and closed your doors. You would want to sue for the money you lost as a result of the reimbursement suspension. If the agency cannot give money damages or is powerless to give such money damages, then informal agency appeals would be in adequate to address you needs.
Number 2: Futility.
Futility refers to situations where an agency “has deliberately placed an impediment in the path of a party” or where agency policies “are so entrenched that it is unlikely that parties will obtain a fair hearing.”
For example, if by appealing informally within the administrative agency, you will not receive a fair hearing because no independent decision maker exists, you can make the argument that the informal appeal process would be futile.
Here’s the “small print:”
If you claim futility and/or inadequacy, then you must include the futility and/or inadequacy allegations in the Complaint; AND you bear the burden of proving futility and/or inadequacy.
If, however, you exhaust your adminastrative remedies, go to OAH.