FtLED/EnOORSED 1 KAMALA D , HARRIS 2 Attomey General of Galifomia ' NiROMi W. PFEIFFER Supervising Deputy Attomey General 3 KARLI 4 5 6 7 8 9 AUG - 8 2015 ElSENBERG Deputy Attomey General State Bar No. 281923 1300 I Street, Suite 125 P.O. Box 944255 Sacramento, CA 94244-2550 Telephone: (916)324-5360 ; Fax: (916)324-5567 E-mail: Karli.Eisenberg@doj.ca.gov Attorneys for Respondent California Department of Health Care Services By:. p. VUE DEPUTY CLERK SUPERIOR COURT OF THE STATE OF CALIFORNIA 10 ' COUNTY OF SACRAMENTO 11 12 13 14 15 16 17. 18 19 20 Case No. 34-2015-80002018 HOWARD O L I V E R , D.O., Petitioner, RESPONDENT'S OPPOSITION TO PETITION FOR WRIT OF ADMINISTRATIVE MANDAMUS [CODE OF CIV. PROC, § 1094.5) CALIFORNIA DEPARTMENT OF HEALTH C A R E SERVICES, Respondent. Date: October 2, 2015 Time: 1:30 PM Dept: 44 , • Judge: Hon. Christopher E. Kmeger Action Filed: Feb. 13,2015 21 22 23 24 25 26 27 28 Respondent's Opposition to Petition for Writ of Mandate (34-2015-80002018) 1 TABLE OF CONTENTS ^ 3 Page Introduction 1 Statutory Background 6 ^ 8 9 10 11 A. B. C. D. Legal Standard..... Legal Argument 3 4 4 8 8 9 1. A. B. C. 16 17 18 D. 20 E. 22 23 24 25 2g 27 The Investigation The Accusation..... The Administrative Hearing & Decision The Subject Petition..,; : PETITIONER FAILS To DEMONSTRATE THAT THE A L J ' S DECISION IS ERRONEOUS ON A L L 9 COUNTS 15 21 1 2 13 19 ; Statement of Facts and of the Case 12 14 , The ALJ Properly Considered the Application of the American Society of Addiction Medicine Standards of Care to Petitioner. 1. Petitioner Fails to Demonstrate that the ALJ's Decision Is Not Supported By the Weight of Evidence. 2. Petitioner Fails to Demonstrate a Factual Error The ALJ Properly Determined That Petitioner Failed to Provide Medical Direction (Count 6)... ; The ALJ Properly Determined That Petitioner Failed to Assess Beneficiaries' Physical Condition (Count 1) 1. Petitioner Fails to Demonstrate That The ALJ's Decision Is Not Supported by the Weight of Evidence 2. The ALJ's Passing Reference to the AS AM Does Not Undermine His Ruling ; ^The ALJ Properly Determined that Petitioner Rendered Invalid Waivers of Physical Exams (Count 2) The ALJ Properly Concluded that the Applicable Regulations Required Petitioner to Render a "Medical Necessity" Determination and that Petitioner Failed to do so (Counts 3,4, 5) 1. Deference is Owed to DHCS in Interpreting its Own Regulations 2. The Plain Language of the Medi-Cal Regulation Required Petitioner to Use the DSM to Render a Diagnosis (Count 3) 3. The Plain Language of the Regulation Required Petitioner to Render a Medical Necessity Determination at the 90-Day DMC Treatment Update (Count 4) 4. Petitioner Was Required to Consider "Medical Necessity" at the 6-Month DMC Treatment Update, Including Rendering a Diagnosis (Count 5) ;.9 9 10 11 ....12 !13 13 15 16 16 17 19 20 21 28 Respondent's Opposition to Petition for Writ of Mandate (34-2015-80002018) 1 TABLE OF CONTENTS (continued) 2 Page 3 5. 4 The Medi-Cal Regulatory Scheme Further Supports the ALJ's Determination that Dr. Oliver was Required to Utilize the DSM and Render a Medical Necessity Determination 22 I 5 F. 6 G. 7 H. 8 .. II. 9 11 12 III. 13 14 PETITIONER FAILS TO DEMONSTRATE THAT THE ALJ ABUSED His DISCRETION IN CONSIDERING THE TESTIMONY OF DHCS' WITNESSES A. B. . C. 10 Conclusion The ALJ Properly Determined that Petitioner Submitted False Information (Count 9). >. The ALJ Properly Determined that Petitioner Caused Excessive Services to be Rendered (Count 7) The ALJ Properly Determined that Petitioner Rendered SubStandard Seryiceis (Count 8). The ALJ Properly Considered the Testimony of Dr. Albers The ALJ Properly Considered the Testimony of Ms. Delgado The ALJ Properly Considered the Testimony of Mark Mimnaugh, R.N : PETITIONER FAILS To DEMONSTRATE THAT T H E A L J ABUSED His DISCRETION REGARDING DISCOVERY DETERMINATIONS 24 .24 ..26 :.26 ..26 27 28 29 29 15 16 17 18 19 20 21 22 23 24 25' 26 .27 28 Respondent's Opposition to Petition for Writ of Mandate (34-2015-80002018) 1 TABLE OF AUTHORITIES 2 ' 3 CASES 4 ^ Anserv Ins. Servs., Inc. v. Kelso (2000) 83 Cal.App.4th 197 ^ Bonnell v. Medical Bd. of Cal. (2003) 31 Cal.4th 1255 Page ;..29 18 7 8 9 10 11 Chamberlain v. Ventura County Civil Serv. Comm 'n (1977)69Cal,App.3rd 362 9 City ofAlhambray. Cnty. of Los Angeles (2012) 55 Cal.4th707 ^ Duncan v. Dept. of Personnel Admin. (2000) 77 Cal.App.4th 1166 21 9 12 13 14 15 16 Fukuda v. City of Los Angeles (1990) 20 Cal.4th 805 9, 11, 30 Garcia v. McCutchen (1997) 16Cal.4tli 469 ; 23 Jenner v. City Council (1958) 164 Cal.App.2d 490 , i 29 17 18 19 20 Mann v. Dept. of Motor Vehicles (1999) 76 Cal.App.4th 312 Manriquez v. Gourley (2003) 105 Cal.App.4th 1227 , 8, 9 17; 18 MCM Construction, Inc. v. City and County of San Francisco (1998) 66 Cal.App.4th 359 9 21 22 23 24 25 Medical Bd. of Cal v. Superior Court (2001) 88 Cal.App.4th 1001 Merrill v. Dept. of Motor Vehicles (1969)71 Cal.2d 907 Sharon S. v. Superior Court (2003)31 Cal.4th417 ; ; 23 21,23 9, 17 77 26 28 50, Cal. Jockey Club, Inc. v. Cal. Horse Racing Bd. (1950)36Cal.2d 167..., ; 29 111 Respondent's Opposition to Petition for Writ of Mandate (34-2015-80002018) 1 TABLE OF AUTHORITIES (continued) 2 3 4 5 Page So. Cal. Underground Contractors, Inc. v. City of San Diego (2003) 108 Cal.App.4th 533 25 Usher v. County of Monterey (1998) 65 Cal.App.4th 210 9 ^ 7 West Coast Home Improvement Co. v. Contractors' State License Bd. (1945) 72 Cal.App.2d 287 29 8 Yamaha Corp. of America v. State Bd. of Equalization (1998) 19Cal.4thl 18 9 10 11 STATUTES Califomia Code of Regulations, Title 9 § 9533, subd. (a) .....^ 24 12 13 14 15 16 17 18 19 20 21 22 24 23 Califomia Code of Regulations Title 22 §§ 51303, 51341.1, subd. (a) § 51341.1 : § 51341.1, subd. (a) §5134Ll,subds. (a), (h).. §51341.1, subd. (b)(9) § 51341.1, subd. (h) '. §51341.1. subd. (h)(1) § 51341.1, subd. (h)(l)(A)(iii)(b) § 51341.1, subd. (h)(1)(D) § 51341.1, subd. (h)(l)(D)(i) ; § 51341.1, subd. (h)(2)(iii)(b) § 51341.1, subd. (h)(5)(A)(ii)(a)........... § 51452, subd. (a)....'. § 51473... ; : Califomia Code of Civil Procedure § 1094.5, subd. (c) Califomia Govemment Code § 11340.5(a) : . § 11425.20, subd. (e) § 11758.46 ofthe Health and Safety Code ; ; '. : ; 2 27 passim 1 20 2 .2, 24 2, 13, 14, 17 20, 21 2, 22, 24 21 ....22 2 24, 25 30 10, 11 10, 16 24 25 26 27 Welfare and Institution Code §14123 § 14123, subd. (a) ; 1,9 .....2, 9 28 Respondent's Opposition to Petition for Writ of Mandate (34-2015-80002018) 1 2 INTRODUCTION The Legislature granted the Director of the Department of Health Care Services (DHCS or 3 the Department) with the authority to suspend a provider from participating in the Medi-Cal 4 program based on a violation of any Medi-Calmle or regulation. (Welf & Inst. Code, § 14123.) 5 In the underlying action, DHCS brought an Accusation charging Dr. Howard Oliver, D.O. 6 (petitioner) with 10-counts of Medi-Cal mie and/or regulation violations. After a 4-day hearing, 7 Administrative Law Judge (ALJ) Mark Regalbuti found for the Department on 9 of the 10 counts,' 8 concluding that each count warranted an indefinite suspension of petitioner's participation in the 9 Medi-Cal program. Among other things, the ALJ concluded that Dr. Oliver was essentially 10 "mbber stamping" forms, at a substantial cost to the State and at a substantial cost to the Medi- 11 Cal beneficiaries. Dr. Oliver's failure to establish medical necessity for the beneficiaries could 12 have serious adverse effects, including resulting in an improper diagnosis in the beneficiaries' 13 charts for their lifetime and potentially impacting their ability to obtain a transplant, if necessary. 14 In sum, the ALJ properly concluded that petitioner's participation in the Medi-Cal program be 15 indefinitely suspended as a result of his violations of the Medi-Cal regulations. 16 The petition for writ of administrative mandamus challenging that decision should be 17 denied in its entirety because petitioner fails to carry his burden in demonstrating that the ALJ's 18 decision is not supported by the weight of the evidence. In this particular case, petitioner has the 19 added burden of demonstrating that all 9 counts are against the weight of evidence. Petitioner has 20 not met his heavy burden. 21 22 STATUTORY BACKGROUND DHCS administers the Dmg Medi-Cal (DMC) program. The DMC program offers a range 23 of substance use disorder services, including outpatient counseling services which must be 24 provided by or under the direction ofa physician who is also responsible for determining whether 25 such services are medically necessary. (Cal, Code Regs., tit. 22, § 51341.1, subds. (a), (h); Vol. 2 26 [Tab 9] Reporter's Transcript (RT) at pp. 39:22-40:6.) "Medically necessary" are those health 27 care services that are reasonable and necessary to protect life, to prevent significant illness or. 28 significant disability, or to alleviate severe pain through the diagnosis or treatment of disease, 1 Respondent's Opposition to Petition for Writ of Mandate (34-2015-80002018) 1 illness or injury. (Cal. Code Regs., tit. 22, §§ 51303, 51341.1, subd. (a).) The regulations require 2 that the physician determine medical necessity threetimesduring the DMC beneficiary's 3 treatment: (1) "by the physician's admission of each beneficiary pursuant to Subsection (h)(1) of 4 this regulation"; (2) "the physician's review and signature of each beneficiary's treatment plan 5 and updates pursuant to Subsection (h)(2) of this regulation, and" (3) "the physician's 6 determination to continue services pursuant to Subsection (h)(5) of this regulation." (Cal. Code 7 Regs., tit. 22, § 51341.1, subd. (h)(l)(D)(i), emphasis added; AR Vol. 10 [Tab 47] at p. 6.) The 8 regulations allow the physician to either (a) perform a physical examination of the DMC 9 beneficiary or (b) review the records containing the DMC beneficiary's medical history and 10 substance abuse history. (Cal. Code Regs., tit. 22, § 51341.1, subd. (h),) "If the assessment is 11 made without benefit of a physical examination, the physician shall complete a waiver which 12 specified the basis for not requiring a physical examination." (Cal. Code of Regs., tit. 22, § 13 51341.1,subd. (h)(l)(A)(iii)(b); Vol 10[Tab47]atp.6.) 14 The Director of DHCS may suspend a Medi-Cal provider of service fi'om further 15 participation in the Medi-Cal program for violation of any mie or regulation promulgated by the 16 Director of DHCS. (Welf & Inst. Code, .§ 14123, subd. (a); Cal. Code Regs., tit. 22, § 51452, 17 subd. (a).) Such a suspension may be for an indefinite or specified period of tirrie. (Welf & Inst. 18 Code, § 14123, subd. (a).) 19 20 STATEMENT OF FACTS AND OF THE CASE Petitioner Dr. Oliver is an osteopathic physician. (AR Vol. 3 [Tab 9] at p. 586:23; AR Vol. 21 11 [Tab E, resume].) From 1997 to 2003, he owned his own office practicing general medicine. 22 (AR Vol. 11 [Tab E], at p. 3.) Since 1999, he has been self-employed as an Addiction Medicine 23 Medical Director to various outpatient dmg counseling centers in the greater Los Angeles area. 24 {Ibid.) As of July 1, 2013, Dr. Oliver was associated with 17 DMC providers, 15 of which had 25 been suspended. (AR Vol. 1 [Tab 9] at pp. 362:24-363:7; Vol. 10 [Tab 44] at p. 2; Vol. 10 [Tab 26 45, declaration of Dr. Oliver], at p. 1.)' He acted as the Medical Director to the DMC programs 27 ' At one time, he was associated with 29 DMC providers. (AR Vol. 2 [Tab 9] RT at pp. 362:21-24,367:24-368:4.) 28 2 . • Respondent's Opposition to Petition for Writ of Mandate (34-2015-80002018) 1 and was paid either $1,000 or $1,500 per month. (AR Vol. 10 [Tab 43].) From July 1, 2012, to 2 June 30, 2013, the DMC providers associated with Dr. Oliver received $16.8 million dollars in 3 Medi-Cal payments for DMC substance use disorder services that they had provided to thousands 4 of beneficiaries. (AR Vol. 2 [Tab 9] RT at pp. 359:21-360:25; Vol. 10 [Tab 42].) 5 6 A. The Investigation Around November 2013, the Department created a strike team to identify all DMC 7 providers that were providing fraudulent services within Califomia. (AR Vol. 2 [Tab 9] RT at pp. 8 41,47-49, 391, 395.) Dr. Oliver came to the attention of the Department because he was the 9 medical director of a large number of the DMC providers engaging in fraudulent practices. {Id. at 10 pp. 46-47, 395-396.) In essence, he was the "common denominator." {Ibid.) As a result, the 11 strike team began a targeted review of Dr. Oliver which included determining which programs 12 Dr. Oliver was contracted for to be the medical director. {Id. at p. 48:8-9; see also AR Vol. 10 13 [Tab 43] at pp. 1-40 [consisting of Dr. Oliver's contracts with various providers].) The team then 14 worked with the County of Los Angeles to obtain the DMC beneficiary files. (AR Vol. 2 [Tab 9] 15 RT at pp. 48:8-49:8.) Thereafter, in conjunction with the DHCS Audits and Investigations Unit, 16 the team determined the DMC beneficiaries the team was going to refer to the DHCS Medical 17 Consultant for her review. {Ibid.) After selecting the appropriate DMC beneficiaries, the Audits 18 and Investigations Unit retrieved theirfilesand they were tumed over to DHCS Medical 19 Consultant, Dr. Elizabeth Albers. {Id. at p. 49:10-21.) The Medical Consultant then reviewed the 20 30 DMC beneficiaries' files. (AR Vols. 4-9 [containing 30 DMC beneficiaryfiles].Vol. 10 [Tab 21 32, Resume of Dr. Elizabeth Albers].) 22 Dr. Elizabeth Albers reviewed the charts of all 30 DMC beneficiaries and generated a 23 report. (AR Vol. 2 [Tab 9] RT at pp. 120:12-121:7; Vol. 10 [Tab 31, Dr. Albers's report].) Dr. 24 Albers's report reflected that Dr. Oliver did not perform any physical assessments of the DMC 25 beneficiaries. (AR Vol. 2 [Tab 9] RT at pp. 121:8-12, 128:9-12; Vol. 10 [Tab31, Dr. Albers's 26 report] at p. 2.) In lieu of the physical assessment, nearly every DMC beneficiary's record 27 contained an identical waiver. (AR Vol. 2 [Tab 9] RT at pp. 129:11-14, 134:9-4; Vol. 10 [Tab 28 31, Dr. Albers' report] at p. 2.) Dr. Albers's report also concluded that there were seven DMC Respondent's Opposition to Petition for Writ of Mandate (34-2015-80002018) 1 beneficiaries that had significant medical histories that required follow-up by the physician. (AR 2 Vol. 2 [Tab 9] RT at pp. 130:21-131:3; Vol. 10 [Tab 31, Dr. Albers's report] at p: 3.) 3 B. The Accusation 4 On January 16, 2014, the Department initiated the underlying action by serving petitioner 5 with the Accusation. (AR Vol. 3 [Tab 21] at pp. 5, 14.) The Accusation alleged that the 6 Department investigated petitioner's Medi-Cal practices and determined that petitioner violated 7 Medi-Cal statutes, mles, and regulations related to the providing of health care services. {Id. at p, 8 4.) The Accusation fiirther outiined 10 different counts, warranting petitioner's indefinite 9 suspension from Medi-Cal program participation, (/rf. at pp. 4-13.) These counts included: (1) 10 petitioner's failure to assess beneficiaries' physical condition; (2) petitioner's invalid waiver of 11 physical examination; (3) petitioner's false establishment of medical necessity for Dmg Medi-Cal 12 Substance Abuse services-admission; (4) petitioner's false establishment of medical necessity for 13 Dmg Medi-Cal Substance Abuse services-failure to review of treatment plans; (5) petitioner's 14 false establishment of medical necessity for Dmg Medi-Cal Substance Abuse services-' 15 continuation of services; (6) petitioner's failure to provide medical direction; (7) petitioner's 16 providing excessive services; (8) petitioner's providing sub-standard services; (9) petitioner's 17 submission of false information; and (10) petitioner's forbidden conduct. ( M at pp. 5-13.)^ In 18 response, petitioner submitted a Notice of Defense, requesting a hearing. {Id. at p. 1.) 19 20 21 22 ,C. The Administrative Hearing and Decision A 4-day hearing was held before ALJ Mark Regalbuti on June 9-12,2014. (AR Vols. 2-3 [Tab 9, Transcript].) In support of the Department's position, the Department submitted 57 exhibits. (AR Vols. 23 4-10.) Those exhibits included, among other things, 30 different DMC beneficiaryfiles.Dr. 24 Albers's report, and a CD containing a CNN story regarding Dr. Oliver. {Ibid.) Additionally, the 25 Department called 5 witnesses, including (1) DHCS Staff Services Manager I investigator Jessica 26 2 27 ' The Department amended the Accusation to conform to proof after the formal hearing. The Amended Accusation was submitted with the Department's post-hearing brief without objection. (AR Vol. 1 [Tab 8], at pp. 23-32 [Exhibit A]; see also AR Vol. 1 [Tab 4], at p. 7 fn. 9.) 28 Respondent's Opposition to Petition for Writ of Mandate (34-2015-80002018) 1 Delgado (AR Vol. 2 [Tab 9], RT at pp. 36:16-37:21; AR Vol. 10 [Tab 33, resume]), (2) DHCS 2 Financial Audits and Investigations Health Program Auditor Stephan Fukasawa (AR Vol. 2 [Tab 3 9], RT at pp. 76:18-77:12), (3) DHCS medical consultant Dr. Elizabeth Albers (AR Vol. 2 [Tab 4 9], RT at p. 112:8-13; AR Vol. 10 [Tab 32, resume]), (4) Los Angeles County Department of 5 Public Health Head Contract Program Auditor Michael Kerr (AR Vol. 2 [Tab 9], RT at pp. 6 280:14-17, 286:4-7; AR Vol. 10 [Tab 32, resume]), and (5) DHCS Audits and Investigations 7 Chief of the Medical Review Branch Mark Mimnuagh (AR Vol. 2 [Tab 9], RT at pp. 348:9-22; 8 AR Vol. 10 [Tab 38, resume]). 9 ^ In support of his position, petitioner submitted 14 exhibits (AR Vol. 11 [Tab 23]) and called 10 4 witnesses, including (1) Consultant Jerry Vaughn (AR Vol. 11 [Tab K, resume]), (2) U-Tum 11 Alcohol and Dmg Program Administrative Assistant Javan Vamadoe Story (AR Vol. 3 [Tab 9] 12 RT at pp. 512:10-513:3 [Tab 9]), (3) owner of suspended outpatient centers Bemadine Goudeau 13 (AR Vol. 3 [Tab 9] RT at pp. 547:21-550:21), and (4) petitioner Dr. Howard Oliver. (AR Vol. 3 14 [Tab 9].) Following the hearing, the parties submitted post-hearing briefs. (AR Vol. 1 [Tabs 6- 15 8].) 16 On December 3, 2014, ALJ Regalbuti issued his proposed 108-page decision, suspending 17 respondent indefinitely from the Medi-Cal program. (AR Vol. 1 [Tab 4].) In reaching this 18 determination, ALJ Regalbuti rendered two preliminary determinations and then tumed to each of 19 the 10 counts alleged in the Accusation. {Id. at pp. 2-3.) First, the ALJ concluded that the 20 American Society of Addiction Medicine (ASAM) standards of care apply to Dr. Oliver because 21 he is providing medical care. ( M at pp. 15-22.) The ALJ noted, however, that "[a]ssuming 22 arguendo that those specific ASAM standards are not the applicable community standards here, 23 there still is ample evidence that he should be suspended indefinitely from the Medi-Cal 24 program." {Id. at p. 22:3-5.) Second, the ALJ concluded that the Department's time studies do 25 not establish that Dr. Oliver could not have reviewed all the records that he claims to have 26 reviewed. {Id. at pp. 25-35.) 27 28 Tuming to the Accusation, the ALJ found in favor of the Department on 9 out of the 10 counts. (AR Vol. 1 [Tab 4] at pp. 35-107.) The ALJ first concluded that Count 6 ofthe Respondent's Opposition to Petition for Writ of Mandate (34-2015-80002018) 1 Accusation - discussing whether Dr. Oliver fulfilled his responsibilities under section 51341.1 to 2 determine medical necessity - framed the remainder of the Accusation, and as such, should be 3 dealt with first. {Id. at p. 35.) On Count 6, ALJ Regalbuti concluded that Dr. Oliver failed tO 4 provide proper medical direction for those outpatient services. {Id. at pp. 35-42.) The ALJ found 5 that Dr. Oliver's position that he fiilfills a primarily administrative role is at odds with the 6 applicable Medi-Cal regulations, (/c/. at pp. 40-41.) 7 The ALJ then tumed to Count 1 of the Accusation regarding petitioner's failure to access 8 beneficiaries' physical condition. (AR Vol. 1 [Tab 4], at pp. 42-59.) On that Count, the ALJ first 9 found for petitioner, concluding that the Medi-Cal regulations did not require that someone othier 10 than a counselor take the medical history of the beneficiary. {Id. at pp. 43-46.) Furthermore, the 11 ALJ concluded that there was no statute or regulation which required petitioner to initial the 12 intake forms to demonstrate he had reviewed them. (/fi?. at pp. 46-47.) However, the ALJ 13 concluded that petitioner's failure to follow-up with six beneficiaries constituted a failure to 14 properly assess their physical condition, (/rf. at pp. 59:10-13, 48-59.) The ALJ found that this 15 conduct constituted a violation of a Medi-Cal regulation, and was therefore, grounds for 16 suspension, (/rf. at p. 59:16-24.) 17 On Count 2 (Invalid Waiver of Physical Examination), the ALJ again first found for 18 petitioner. (AR Vol. 1 [Tab 4], at pp. 60-68.) The ALJ concluded that petitioner's use of the 19 Department's own form was proper and the Medi-Cal regulation could not be constmed to have 20 absolutely required petitioner to add beneficiary-specific clinical information to the waiver form. 21 {Id. at p. 61:5-64:12.) However, as to the six DMC beneficiaries who required follow-up, 22 petitioner's waiver form should have specified the basis for waiving the physical examination as 23 required under the regulations, (/i/. at p. 68:1-4.) Accordingly, the waivers for those DMC 24 beneficiaries were invalid and because that constitutes a violation of a Medi-Cal regulation, it is 25 also an independent ground for suspension, (/rf. at p. 68:5-8.) 26 On Counts 3, 4, and 5, the ALJ found for the Department. (AR Vol. 1 [Tab 4], at pp. 68- 27 96.) On Count 3 (false establishment of medical necessity when beneficiary admitted to the 28 program), the DMC beneficiaries' records did not contain sufficient information to establish that 6 Respondent's Opposition to Petition for Writ of Mandate (34-2015-80002018) 1 DMC beneficiaries 18, 23, 24, 26, and 28 met any ofthe Diagnostic Statistic Manual (DSM) IV 2 criteria necessary to substantiate that the counseling services were medically necessary at the 3 admission stage. {Id. at p. 96:22-97:1.) In fact, petitioner admitted that for DMC beneficiary 24 4 and 26, the record did not establish the requisite criteria. {Id. at p. 97:1-2.) On Counts 4 and 5 5 (false establishment of medical necessity when beneficiary's treatment plan updated). Dr. Oliver 6 admitted that he did not intend his signature on the forms to mean that he found continued 7 services to be medically necessary. {Id. at pp. 97:3-10, 93:13-96:14.) The ALJ concluded this 8 violated Medi-Cal regulations that required establishment of medical necessity at all stages, 9 including the 90-day and 6-month stages, (/i/. at pp. 93:13-23, 96:11-12, 97:3-17.) 10 On Count 9 (submission of false information), the ALJ determined that given the outcomes 1,1 on Counts 3-5, the evidence established that petitioner submitted false information in violation of 12 the Medi-Cal regulations. (AR Vol. 1 [Tab 4], at pp. 96-98.) 13 On Count 7 (excessive services), the ALJ found for the Department. (AR Vol. 1 [Tab 4], at 14 pp. 101-102.) The evidence established that Dr. Oliver approved and updated treatment plans, 15 and authorized continuing services for beneficiaries in DMC treatment programs, regardless of 16 whether the services were medically necessary, as required by the Medi-Cal regulations. {Id. at p. 17 102:10-13.) As such, petitioner caused excessive services to be rendered and this was a ground IS for indefinite suspension, (/c/. at p. 102:13-18.) . 19 On Count 8 (sub-standard services), the ALJ also found for the Department, (AR Vol. 1 20 [Tab 4], at pp. 102:19-105:10.) The ALJ determined that petitioner's practice of only reviewing 21 the most recent progress note in order to deterrnine that continuing services were medically 22 necessary "made it difficult if not impossible" for him to determine whether the treatment was .23 medically necessary. {Id. at p. 104:7-9.) The ALJ found that "for all intents and purposes 24 ; [petitioner] was just mbber stamping a determination that the services were medically necessary 25 when the patient record did not contain the requisite information to properly do so." {Id. at p, 26 104:11-13.) Thus, the ALJ concluded that given his responsibility as the medical director, any 27 28 -1 For purposes of confidentiality, the patients were each given a number so that their identity would remain anonymous. Respondent's Opposition to Petition for Writ of Mandate (34-2015-80002018) 1 medical services he provided without proper medical direction or without a proper determination 2 that the service is medically necessary is sub-standard service. {Id.atp. 104:14-25.) Therefore, 3 the ALJ found that petitioner provided or caused to be provided sub-standard services, warranting 4 indefinite suspension, (/c/. at p. 105:7-10.) 5 Lastly, on Count 10 (forbidden conduct), the ALJ found for the petitioner. (AR Vol. 1 [Tab 6 4], at pp. 102:19-105:10.) The ALJ concluded that the Department failed to demonstrate that 7 petitioner's conduct was "inimical" such that it violated the application regulation. {Ibid.) 8 9 10 11 On December 17, 2014, the Proposed Decision was adopted, with slight modificationSj, as the Final Decision of the Department. (AR Vol. 1 [Tab 2] \ ) D. The Subject Petition This petition for writ of administrative mandamus was filed on Febmary 13, 2015, and the 12 Memorandum of Points and Authorities (MPA) were filed on or about August 18, 2015, 13 requesting that the Court sest aside the December 17, 2014 decision in its entirety. (MPA at pp. 14 2:24-26,28:3-5.) 15 16 LEGAL STANDARD A fundamental vested right has been defined in terms of a right possessed. {Mann v. Dept. 17 of Motor Vehicles (1999) 76 Cal.App,4th 312, 320, citing Clerici y. Dept. of Motor Vehicles 18 (1990) 224 Cal.App.3d 1016, 1023.) "the term vested denotes a right that is either already 19 possessed or legitimately acquired. Business or professional licensing cases have distinguished 20 between the denial of an application for a license (nonvested right) and the suspension or 21 revocation of an existing license (vested right). Once an agency has exercised its expertise and 22 issued a license, the agency's subsequent revocation of that license generally calls for an 23 independent review of the facts, because the revocation or suspension ,affects a vested right." 24 {Mann, at p. 320.) 25 ,' "In exercising its independent judgment, a trial court must afford a strong presumption of 26 correctness conceming the administrative findings, and the party challenging the administrative 27 In an effort to assist the Court, throughout this, brief, the Department refers to the decision behind Tab 4 because the pages are numbered sequentially. 28 8 Respondent's Opposition to Petition for Writ of Mandate (34-2015-80002018) 1 decision bears the burden of convincing the court that the administrativefindingsare contrary to 2 the weight ofthe evidence." {Fukuda v. City of Los Angeles (1990) 20 Cal.4th 805, 817; MCM 3 Construction, Inc. v. City and County of San Francisco (1998) 66 Cal.App.4th 359, 368.) Weight 4 of the evidence is synonymous with preponderance of the evidence. {Chamberlain v. Ventura 5 Cowrt/yC/v/75erv. Co/Mw'«(1977)69 Cal.App.3rd362, 368.) 6 The trial court, however, reviews questions of law de novo. {Duncan v. Dept. of Personnel 1 Admin. (2000) 77 Cal.App.4th 1166, 1174; Usher v. County of Monterey (1998) 65 Cal.App.4th 8 210, 215-216.) Although, courts will often give deference to an agency's interpretation of its own 9 goveming laws or regulations. (See Sharon S. v. Superior Court (2003) 31 Cal.4th 417, 436.) 10 The Medi-Cal regulations at issue in this matter warrant deference to the Departnient's 11 interpretation. 12 LEGAL ARGUMENT 13 Welfare and Institutions Code section 14123, subdivision (a) provides that the Director of 14 the Department of Health Care Services may suspend a Medi-Cal provider of service for abuse of 15 the Medi-Cal program, or otherwise substantially related to the qualifications, functions or duties 16 of a provider of service. The Legislature granted the Director with this authority "in order to 17 protect the health of recipients and theftandsappropriated to carry out" the Medi-Cal program. 18 (Welf & Inst. Code, § 14123.) Here, the weight of the evidence supports the Director's decision 19 to indefinitely suspend petitioner's participation in the Medi-Cal program. Petitioner has failed to 20 carry his burden in demonstrating that the decision is erroneous on all 9 counts. 21 I. 22 23 24 PETITIONERFAILS TODEMONSTRATETHATTHE ON A L L 9 COUNTS. ALJ'S DECISION IS ERRONEOUS Petitioner appears to challenge all 9 counts under which the ALJ found for the Department. However, petitioner fails to demonstrate any error let alone error on each and every count, warranting reversal of the ALJ's determination. 25 26 A. The ALJ Properly Considered the Application of the American Society of Addiction Medicine (ASAM) Standards of Care to Petitioner. 27 Before the ALJ rendered his conclusions on each count alleged in the Accusation, the ALJ 28 made some preliminary determinations. (AR Vol. 1 [Tab 4] at pp. 15-25.) The first preliminary 9 Respondent's Opposition to Petition for Writ of Mandate (34-2015-80002018) 1 issue was whether physicians participating in DMC Services must comply with the Addiction 2 Physician's standards of care. Petitionier appears to assert two arguments stemming from this 3 preliminary determination. (MPA at pp. 14:15-16:8.) First, petitioner argues that the ALJ 4 erroneously relied upon the ASAM standards. (MPA at pp. 15:20-16:8.) Second, petitioner 5 argues that the ALJ improperly ignored the testimony from Consultant Jerry Vaughn. (MPA at p. 6 14:15-15:11.) Petitioner's arguments fail. 7 I. Petitioner Fails to Demonstrate that the ALJ's Decision is Not Supported By the Weight of Evidence. 8. ^ Petitioner "contends that his participation in Dmg Medi-Cal services did not require that he JQ comply with" the ASAM's standards of care. (MPA at p. 16:7-9, see.also pp. 14:15-16:8.) JJ Primarily, petitioner contends that the ASAM standards of care were not adopted until after the j2 period of investigation in this case. {Id. at pp. 15:20-24, 5:17-24; AR Vol. 10 [Tab 54, ASAM J2 Standards of Care].) Additionally, petitioner contends that "the use of the ASAM standards by j4 the Department" "was a violation of Govemment Code 11340.5(a), which states in relevant part: J^ No state agency shall issue, utilize, enforce, or attempt to enforce any guideline, criterion, bulletin, manual, instmction, order, standard of general application, or other mie . .. unless [it] jy has been adopted as a regulation and filed with the Secretary of Sate pursuant to this chapter." Jg {Id. at pp. 15:25-16:6, 5:25-28 [citing Government Code section 11425.50, subd. (e)^].) 19 First, as a threshold matter, petitioner misreads and misconstmes the ALJ's decision. 20 Although the ALJ concluded that the ASAM standards of care applied to Dr. Oliyer because he is 21 providing medical care (Vol. 1 [Tab 4].at pp. 15-22), the ALJ explicitly noted that "[ajssuming 22 arguendo that those specific ASAM standards are not the applicable community standards here, 23 there still is ample evidence that [petitioner] should be suspended indefinitely from the Medi-Cal 24 program." (Id. alp. 22:3-5.) Given the ALJ's secondary finding that even wzY^ownhe ASAM 25 standards, petitioner should still be suspended indefinitely (see infra), petitioner fails to identify 26 27 28 ' . Govemment Code section 11425.20, subdivision (e) states: "A penalty may not be based on a guideline, criterion, bulletin, manual, instmction, order, standard of general application or other mie . , . unless it has been adopted as a regulation. . . . " 10 Respondent's Opposition to Petition for Writ of Mandate (34-2015-80002018) . 1 how the ALJ's determination with regard to the other 9 counts is not supported by th6 weight of 2 evidence. Indeed, as outlined infra, the ALJ concluded that petitioner failed to follow the 3 requirements set forth in the applicable Medi-Cal regulations, and as a result, his indefinite 4 suspension was warranted as a result of each separate regulation violation. (See infra at pp. 11- 5 26.) Because petitioner fails to demonstrate that the administrative findings are contrary to the 6 weight of the evidence, petitioner has not met his burden. {Fukuda v. City of Los Angeles, supra, 7 20Cal.4thatp. 817.) 8 9 Nevertheless, even reaching this issue of whether the ASAM standards of care apply to Dr, Oliver, petitioner's arguments fail. Petitioner himself conceded that they do apply to him - 10 regardless of the date of adoption. (AR Vol. 3 [Tab 9] RT at pp. 673:8-674:8 [agreeing that the 11 standards applying to him and provide a "floor"].) Therefore, petitioner's own testimony 12 supports the ALJ's determination that these standards "provide a floor of minimum standard in 13 this area of practice" and "the adoption date [of the standards] alone is not dispositive. . . . " (AR 14 Vol. 1 [Tab 4] at p. 15:21-23.) 15 With regard to petitioner's reliance on the various Govemment Code sections, petitioner's 16 argument is misplaced. The Department's Accusation does not rely upon the ASAM in seeking 17 petitioner's indefinite suspension from the Medi-Cal program, (AR Vol. 1 [Tab 8], at pp. 23-32 18 [Exhibit A, outlining the Medi-Cal regulations petitioner violated, warranting his suspension from 19 the program]; see also Vol. 3 [Tab 21].) In fact, the Department's witnesses did not testify as to 20 the application of the ASAM; rather, the application of the ASAM was discussed during Dr. 21 Oliver's testimony. (AR Vol. 1 [Tab 4] at p. 18:3-6.) As such, petitioner fails to demonstrate that 22 the Department is seeking to indefinitely suspend petitioner based on the ASAM standards. 23 2. Petitioner Fails to Demonstrate a Factual Error. 24 Petitioner separately argues that the ALJ erred "[o]n the finding of fact that that [sic] no 25 evidence supported Dr. Oliver's argument" regarding the application of ASAM to Dr. Oliver. 26 (MPA at pp. 14:15-16.) Petitioner appears to argue that Consultant Jerry Vaughn's testimony 27 constitutes evidence that somehow supports Dr. Oliver's position that the ASAM standards of 28 care do not apply to him. (/rf, at pp. 14:15-15:11.) Mr. Vaughn, however, did not testify 11 Respondent's Opposition to Petition for Writ of Mandate (34-2015-80002018) 1 regarding whether the ASAM standards applied to Dr. Oliver. (AR Vol. 3 [Tab 9] RT at pp. 444- 2 510.) Indeed, petitioner's brief fails to include any applicable citation supporting his theory.^ 3 4 5 B. The ALJ Properly Determined that Petitioner Failed to Provide Medical Direction (Count 6). Petitioner argues that the ALJ erroneously concluded that he failed to provide medical 6 direction (Count 6). (MPA at pp. 16:15-17:25.) Petitioner essentially complains that his 1 contractual duties are not mandated by statute. (MPA at p. 17:1-14.) The Department agrees. 8 And, here, the ALJ found for the Department on Count 6 not based on petitioner's breach of his 9 contractual duties but based on his noncompliance with his Medi-Cal regulatory obligations. The 10 ALJ concluded that "[ujltimately, [petitioner's] position is specious because the regulation 11 requires that (1) DMC substance use disorder services must be provided by or under the direction 12 of a physician and (2).that those services are not reimbursable unless they are determined to be 13 medically necessary by that physician ie the Medical Director, upon beneficiary's admission to 14 the progriam and every 90 days thereafter." (Vol. 1 [Tab 4] at p. 41:15-20.) The ALJ then 15 explained that "[e]ven if the Medical Director chooses, as permitted by regulation, and as 16 [petitioner] did here, not to perform a physical examination of beneficiaries at the admission 17 stage, that role still cannot be properly characterized as being primarily administrative as argued 18 by [petitioner]." {Id. at pp. 41:27-42:3.) Furthermore, the ALJ noted that "[b]y opting to perform 19 a record review he cannot merely abdicate those responsibilities as a physician to provide 20 ^ To the extent that petitioner challenges the ALJ's conclusion (under Count 1) that Dr. Vaughn's testimony regarding/o/Zow-wp was given no weight, petitioner's argument still fails. 21 . On this point, the ALJ concluded that Jerry Vaughn's testimony regarding follow-up with DMC beneficiaries (as opposed to the applicability of ASAM) was entitled to no weight because he had 22 no medical expertise. (AR Vol. 1 [Tab 4] at p. 57:10-23.) Mr. Vaughn had no medical education; he received a B.A. in history and a Masters in Public Administration. (AR Vol. 3 [Tab 9] RT at 23 pp. 445:19-446:1.) Mr. Vaughn's experience included working as a data jockey and research analyst for the Department of Alcohol and Dmg Programs. {Id. at pp. 446:7-25.) In that 24 capacity, he put together data packages for different groups and then began working on licensing and certification. {Ibid.) From 1983-2002, he worked as a program analyst. (Vol. 10 [Exhibit K] 25 at p. 1.) As the ALJ properly notes in his opinion, Mr. Vaughn's backgrovmd did not establish that he was qualified to offer an opinion on a physician's standard of care. (AR Vol. 1 [Tab 4] at 26 p. 57:10-23; see also Vol. 3 [Tab 9] RT p. 449:25-451:17 [Department objecting on the grounds that Mr. Vaughn is not qualified to give medical opinion].) Petitioner fails to provide any 27 evidence that Mr. Vaughn was qualified to render a medical opinion and testimony regarding whether a physician needs to provide "follow-up," (MPA at pp. 14:14-15:6.) 28 12 Respondent's Opposition to Petition for Writ of Mandate (34-2015-80002018) 1 direction for the services in question. Most of [petitioner's] arguments and significant portions of 2 his testimony are an attempt to do just that." {Id. at p. 42:2-6.) In sum, the ALJ upheld Count 6 3 against petitioner not based on the language in his contracts, but based on his lack of medical 4 direction, contrary to the requirements outlined in the regulatory scheme. Thus, petitioner has 5 failed to demonstrate that this determination on Count 6 is contrary to the weight of evidence. 6 7 8 9 C. The ALJ Properly Determined that Petitioner Failed to Assess Beneficiaries' Physical Condition (Count 1). , The ALJ found for the Department on its third allegation under Count 1. (Vol 1 [Tab 4] at pp. 42-59.) Specifically, the ALJ agreed that petitioner's failure to follow-up with the physicians of 6 DMC beneficiaries who had significant medical conditions or to do any further investigating 10 violated the Medi-Cal regulatory scheme, (/rf. at pp. 42:23-43:2, 48:1-59:25.) In reaching this 11 conclusion, the ALJ examined 6 DMC beneficiaries who had "a panoply of serious medical 12 conditions." {Id. at p. 58:7-8; id. at pp. 52:1-57:8 [discussing Patient 4, 11,13, 1, 24, 25].) The 13 ALJ found that petitioner's "assessment of the physical condition of six beneficiaries was 14 inadequate because their significant medical histories warrianted further follow-up or investigation 15 which he did not properly perform." {Id. at p. 59:16-18.) "By failing to do any follow-up for 16 these patients, in effect, [petitioner] failed to perform a proper assessment of their physical 17 condition as required under Califomia Code of Regulations, title 22, section 18 19 20 21 22 23 24 25 51341.1(h)(l)(A)(iii)(b)." {Id. at p. 59:18-21.) Moreover, the ALJ dismissed petitioner's assertion that he was "somehow excused from failing to have done any further investigating" because such a position "ignore[d] the responsibility with which he is charged for providing medical direction and oversight of these counseling services under section 51341.1." {Id. at p. 58:18-23 [concluding that petitioner's argument that his duty as Medical Director was "primarily administrative" was inconsistent with the regulatory framework],) As such, the ALJ found that this violation ofa Medi-Cal regulation constituted a ground for suspension. {Id. at p. 59:22-24.) L 26 27 28 Petitioner Fails to Demonstrate that the ALJ's Decision is Not Supported By the Weight of Evidence. Petitioner maintains that his role was "primarily administrative" and as such, he "had no ( doctor/patient relationship with any of the patients whose records he reviewed for his DMC * 13 Respondent's Opposition to Petition for Writ of Mandate (34-2015-80002018) 1 clients." (Vol 1 [Tab 4] at p. 58:18-19; MPA atp. 19:4-6.) Petitioner thus asserts that the ALJ 2 "somehow transmuted" petitioner "into the primary care physician for each of the individuals 3 receiving dmg counseling services in the various programs." (MPA at p. 19:7-9.) Without 4 citation to any authority, petitioner then asserts that "[a]// dmg counseling centers... would 5 vanish if the Department/ALJ are allowed to expand legal duties outside of the controlling 6 statute." {Id. at p. 19:12-14.) 7 Contrary to petitioner's assertions, the ALJ properly concluded that petitioner failed to 8 abide by the applicable Medi-Cal regulatory scheme. While the regulation allowed petitioner to 9 review the DMC beneficiary's "medical history, substance abuse history, and/or the most recent 10 physical examination documentation," petitioner was not permitted to merely "mbber stamp" 11 forms. (Cal. Code of Regs., tit. 22, § 51341.1, subd. (h)(l)(A)(iii)(b); Vol 10 [Tab 47] at p. 6; AR 12 Vol, 1 [Tab 4] at p. 25:4-5.) "If the assessment is made without benefit ofa physical 13 examination, the physician shall complete a waiver which specified the basis for not requiring a 14 physical examination." (Cal. Code of Regs., tit. 22, § 51341.1, subd. (h)(l)(A)(iii)(b); Vol 10 15 [Tab 47] at p. 6.) This regulation thus required that, as the physician determining that DMC 16 services are medically necessary and completing the re£}uisite waiver for those services. Dr. 17 Oliver had to render a determination regarding the basis for not requiring a "beneficial" physical 18 examination. {Ibid) In essence, he had to conduct an assessment of the DMC beneficiary in 19 order to complete the waiver ofthe physical examination. The evidence demonstrated, however, 20 that Dr. Oliver failed to conduct an assessment or render a basis for not requiring a physical 21 examination when one was warranted. Specifically, six DMC beneficiaries warranted a physical 22 examination, or at least some type of investigation or follow-up communication. For example, 23 one DMC beneficiary (patient 11), a 70-year-old man, had numerous issues including diabetes, 24 hepatitis C, glaucoma, arthritis, and kidney disease. (AR Vol. 2 [Tab 9] RT at pp. 210:7-13, 25 211 ;20-23.) He also had a history of cocaine, heroin, and alcohol use. {Ibid.) Given this context, 26 DHCS Medical Consultant testified that the physician should have conducted a physical 27 examination or should have specified the basis for waiving the beneficial physical examination. 28 Instead, there was no evidence in the patient record that there was any follow-up on any of the 14 Respondent's Opposition to Petition for Writ of Mandate (34-2015-80002018) 1 DMC beneficiary's issues. {Ibid.) The patient file, like all the others, had an identical waiver 2 without any individualized comments or concems. {Ibid.) 3 The requirement of a proper waiver of a physical examination is particularly significant 4 given that the DMC beneficiaries constitute a particularly vulnerable population, with limited 5 access to health care providers. (AR Vol. 2 [Tab 9] RT at pp. 155:11-20, 376:6-9.) DHCS' 6 expert testified that while in some instances a physician can perform the assessment without the 7 physical examination, when a DMC beneficiary has a plethora of medical conditions, like the six 8 DMC beneficiaries here, petitioner's failure to follow-up, coupled with his execution of a form 9 waiving the necessity of a physical examination constitute a failure to properly assess their 10 physical condition. (AR Vol. 2 [Tab 9] RT at pp. 258:25-260:6; Vol. 10 [Tab 34] at p. 2.) 11 f Petitioner appears to argue that because there was some evidence that each DMC 12 beneficiary had allegedly seen a physician at some point intime,Dr. Oliver is abdicated from any 13 responsibility associated with signing each DMC beneficiary's waiver. (MPA at p. 19:20-20:4 14 [failing to cite to any evidence or points in the record].) Indeed, Dr. Oliver testified that if a 15 DMC beneficiary self-reported that they were seeing a physician, he would not do any follow-up. 16 (AR Vol. 3 [Tab 9] RT at pp. 679:23-680:24.) Again, contrary to petitioner's arguments, 17 petitioner is not absolved of his regulatory responsibilities and duties when a DMC beneficiary 18 self-reports that he or she has been seen by another doctor at some point in time. Indeed, there is 19 no authority to support such a position. 20 22 2. The ALJ's Passing Reference to the ASAM Does Not Undermine His Ruling. Petitioner argues that the ALJ improperly based his suspension penalty on the ASAM. 23 (MPA at p. 20:16-23.) As a threshold matter, that is a mischaracterization of the ALJ's 24 determination. (Vol. 1 [Tab 4] at pp. 58:5-59:24.) In fact,Jn the ALJ's "Conclusion oh Follow- 25 up Issue and Count 1," he does not reference the ASAM at all. {Ibid.) The passing references to 26 the ASAM in a footnote of the analysis do not undermine the ALJ's ultimate conclusion that 27 petitioner violated the Medi-Cal regulatory scheme, thus warranting his suspension. (Vol. 1 [Tab 28 4] at p. 48, fn. 102.) Nor has petitioner demonstrated how the passing references contradict the 15. Respondent's Opposition to Petition for Writ of Mandate (34-2015-80002018) 1 remainder of the evidence utilized by the ALJ in rendering his determination. Furthermore, as 2 noted above, the Department has not violated Govemment Code section 11425.50, subdivision 3 (e), because petitioner's suspension is not based on his violation of the ASAM - it is based on his 4 violation of the Medi-Cal regulations, as petitioner concedes in his brief (MPA at p. 20:13-15 5 ["The ALJ fiirther concluded that the conduct constituted a violation of a Medi-Cal regulation it 6 [sic] was also grounds for suspension," citing Vol. 1 [Tab 4] at p. 48:16-21].) 7 ^ D. The ALJ Properly Determined that Petitioner Rendered Invalid Waivers of Physical Examinations (Count 2). 9 With regard to Count 2, the ALJ determined that physical assessment waivers for six DMC 10 beneficiaries were invalid because petitioner failed to specify the basis for waiving the physical 11 examination. (AR Vol. 1 [Tab 4] at p. 68:1-8.) Consequently, the ALJ concluded that this 12 constituted a violation ofa Medi-Cal regulation and was an additional ground for suspension. 13 {Ibid.) Petitioner relies on his prior argument, i.e. that he played primarily an administrative role 14 and thus was not required to perform any further follow-up. (MPA at pp. 22:8-18.) For the 15 reasons outlined above, petitioner fails to carry his burden in demonstrating that Count 2 is not 16 . supported by the weight of evidence. The ALJ properly determined that Dr. Oliver's failure to do 17 any further follow-up investigation was evidence of his failure to perform an adequate assessment 18 of these DMC beneficiaries and violated Califomia Code of Regulations, title 22, section 19' 51341.1, subdivision (h)(l)(A)(iii)(b). (See ARVol. 1 [Tab 4] at pp. 68:1-8.) 20 21 22 E. , ^ The ALJ Properly Concluded that the Applicable Regulations Required Petitioner to Render a "Medical Necessity" Determination and that Petitioner Failed to Do So (Counts 3,4,5). On Counts 3, 4, and 5, the ALJ found for the Department. On Count 3 (false establishment 23 of medical necessity when hcncficiary admitted to the program), the DMC beneficiaries' records 24 did.not contain sufficient information to establish that patients 18, 23, 24, 26, and 28 met any of 25 the DSM IV criteria necessary to substantiate that the counseling services were medically 26 necessary at the admission stage. (AR Vol. 1 [Tab 4] at pp. 96:22-97:1.) In fact, petitioner 27 admitted that for DMC beneficiaries 24 and 26, the record did not establish the requisite criteria. 28 {Id. at p. 97:1 -2.) On Counts 4 and 5 (false establishment of medical necessity when 16 Respondent's Opposition to Petition for Writ of Mandate (34-2015-80002018) 1 beneficiary's treatment plan updated). Dr. Oliver admitted that he did not intend his signature on 2 the forms to mean that he found continued services to be medically necessary. {Id. at pp. 97:3-10, 3 93:13-96:14.) The ALJ concluded this violated Medi-Cal regulations that required establishment 4 of medical necessity at all stages, including the 90-day and 6-month stages. {Id. at pp. 93:13-23, 5 96:11-12,97:3-17.) - . • ^ 6 With regard to Count 3, petitioner appears to assert that he is not required to utilize the 7 DSM "for anything beyond listing a patient's substance abuse diagnosis." (MPA at p. 23:16-17.) 8 With regard to Counts 4 and 5, petitioner contends that he is not required to make a "medical 9 necessity" determination at the 90-day treatment update plan review or the 6-month treatment 10 update plan review. Petitioner argues that he is only required to render a "medical necessity 11 determination" at the initial admission of the DMC beneficiary. (MPA at pp. 4:13-5:16, 12:3-21.) 12 For the reasons outlined below, petitioner's arguments lack merit. 13 14 1. Deference is Owed to DHCS in Interpreting its Own Regulations. In interpreting these Medi-Cal regulations, deference is owed to the Department of Health <••. 15 Care Services, the agency designated with carrying out and implementing the DMC programs. 16 (See Sharon S v. Superior Court (2003) 31 Cal.4th 417, 436; Manriquez v. Gourley (2003) 105 17 Cal.App.4th 1227, 1234-1235 [discussing that an agency's interpretation of its own regulation 18 "obviously deserves great weight"].) Indeed, the Court's "foremost aim is to ascertain the intent 19 of the agency issuing the regulation to effectuate the purpose of the law." {Manriquez, alp. 20 1235.) At the very least, DHCS's interpretation of its own regulation is a tool available to the 21 Court in its interpretation. (See Yamaha Corp. ofAmerica v. State Bd. of Equalization (1998) 19 22 Cal.4th 1, 7-8; Bonnell v. Medical Bd of Cal (2003) 31 Cal.4th 1255,1265.) In this case, the 23 28 24 Department urged that under the Medi-Cal regulations. Dr. Oliver was required to utilize the 25 determination" at both the 90-day and 6-month treatment update plan reviews. In support of this Respondent's Opposition to Petition for Writ of Mandate (34-2015-80002018) 26 27 position, DHCS proffered testimony from two witnesses regarding the relevant Medi-Cal regulation at issue. DSM throughout the process and was further required to render a "medical necessity 17 1 First, DHCS Staff Services Manager I investigator Ms. Delgado testified extensively about 2 her background (see infra at pp. 24-25) and that as a result of her professional work experience, 3 she was familiar with the Medi-Cal regulations. (AR Vol. 2 [Tab 9], RT at pp. 36:16-37:21, 4 40:18-23; AR Vol. 10 [Tab 33, resume].) She explained that "in order for a provider to be 5 reimbursed for services, the physician needs to ensure that medical necessity was present when 6 admitting their beneficiary or client into treatment, meaning there was a need for the patient to 7 receive treatment services." (AR Vol. 2 [Tab 9], RT^ at p. 42:13-19.) She then explained that in 8 determining medical necessity, there needs to be a DSM code established for a client to receive 9 services, so in this context, there has to be a diagnosis of abuse or dependence. {Id. at p. 43:7-15.) 10 With regard to updated treatment planning, Ms. Delgado reiterated that again there needs tb be a 11 medical necessity determination rendered, and a DSM code applied to the beneficiary. {Id. at p. 12 53:9-20.) Ms. Delgado wamed that if a DMC beneficiary receives services that are not medically 13 necessary, there can be significant harm to the beneficiary. (AR Vol. 2 [Tab 9] RT at pp. 44:9- 14 45:45:3.) She explained that if there is an improper diagnosis of dmg abuse or dmg dependence, 15 that diagnosis "can follow [the patient] throughout the course of their life." (/rf. at p. 44:15-17.) 16 Furthermore, she testified that there is a significant need for these services in Califomia and if 17 people are receiving these services when they are not medically necessary, then other people are 18 unable to access those services, (/rf. at p. 44:18-23.) 19 Second, DHCS presented testimony from DHCS Medical Consultant Dr. Elizabeth Albers, 20 who testified that a medical director, like Dr. Oliver, is required under the Medi-Cal regulations 21 to render a medical necessity determination at the updated review periods. (AR Vol. 2 [Tab 9], 22 RT at pp. i 12-114; AR Vol. 10 [Tab 32, resume].). Dr. Albers testified that based on her 23 familiarity with the Medi-Cal regulations, substance abuse treatment services, like any other 24 Medi-Cal service, have to be medically necessary, as required by the regulation. (AR Vol. 2 [Tab 25 9] RT at p. 114:2-9.) She explained that the regulation requires Dmg Medi-Cal providers to 26 establish medical necessity and identify the DSM diagnosis that warrants the treatment services. 27 {Id. at pp. 114:10-115:16.) Like Ms. Delgado, Dr. Albers also wamed about the potential harm to 28 beneficiaries should a provider fail to render a medical necessity determination. (Id. at pp. 116:918 , Respondent's Oppositionto Petition for Writ of Mandate (34-2015-80002018) 1 117:3.) Primarily, if a beneficiary receives a substance use, substance abuse, or substance 2 dependence diagnosis but they do not actually have that diagnosis, then that may go into their 3 medical record and will remain in their medical record for a lifetime, even though it is not 4 accurate. {Id. at p. 116:13-19.) This improper diagnosis can then have effects on the way the 5 beneficiary is treated, including with regard to insurance and transplants. {Id. at pp. 116:20-22, 6 117:4-12.) For example, if a patient had an improper diagnosis in his medical chart and then 7 needed a transplant, such a diagnosis may impact that patient's ability to receive an available 8 organ.^ {Id at p. 117:4-12.)^ 9 10 11 12 13 14 15 16 17 18 19 2. The Plain Language of the Medi-Cal Regulation Required Petitioner to Use the DSM to Render a Diagnosis (Count 3). The ALJ properly concluded that in rendering a medical necessity determination. Dr. Oliver was required to utilize and diagnosis the DMC beneficiary with the DSM. Petitioner asserts now - as he did at the administrative hearing - that while he was required to list a patient's substance abuse diagnosis, he was not required to use the DSM. (MPA at p. 23:6-28.) Petitioner is squarely mistaken. Califomia Code of Regulations, title 22, section 51341.1, subdivision (b)(9) defines "intake" to include the "diagnosis of substance disorders utilizing the [DSM]." (Vol. 10, [Tab 47, Cal. Code Regs., tit. 22, § 51341.1, subd. (b)(9)] at p. 2, emphasis added.) Petitioner misconstmes this Medi-Cal regulation as only requiring him to "list[]" a DMC beneficiary's substance diagnosis. (MPA at p. 23:16.) This is again an attempt by Dr. Oliver to establish himself as merely an "administrator." Such an interpretation of this regulation is incorrect. The 20 .. 21 22 23 ' DHCS Audits and Investigations Chief of the Medical Review Branch Mark Mimnuagh testified similarly to the other DHCS' witnesses with regard to the potential harm to beneficiaries if they are misdiagnosed. (AR Vol. 2 [Tab 9], RT at pp. 348:9-22, 376:25-378:1; Vol. 10 [Tab 38, resume].) Like the other DHCS witnesses he explained that the beneficiaries who do not have medical necessity or medical justification for these services are branded for life as having a dmg problem, and that is a label that can cause irreparable harm. (AR Vol. 2 [Tab 9], RT at p. 377:1217.) 24 25 26 27 Although not employed by DHCS, Los Angeles County Department of Public Health Head Contract Program Auditor Michael Kerr confirmed the testimony from the DHCS witnesses. He explained that "medical necessity" is "the linchpin of Dmg Medi-Cal treatment" and "that needs to be determined by [the] medical director, and the medical director is then responsible for overseeing the entire treatment program." (Vol. 2 [Tab 9] RT at pp. 327:16-20, 343:21-24 [explaining that "medical necessity drives the need for service"]; AR Vol. 10 [Tab 32, resume].) 28 19 Respondent's Opposition to Petition for Writ of Mandate (34-2015-80002018) 1 definition of intake requires a diagnosis to conduct the intake of the beneficiary into the substance 2 abuse treatment program. (AR Vol. 10 [Tab 47, CaL Code Regs., tit. 22, § 51341.1, subd. (b)(9)] 3 at p. 2, emphasis added.) 4 While the Medi-Cal regulations also require that the provider "identify" the applicable 5 DSM diagnostic code, this does not render Dr. Oliver's medical role as merely a provider who 6 "lists" the DSM code. (AR Vol. 10 [Tab 47, Cal. Code Regs., tit. 22, § 51341.1, subd. (h)(1)(D) 7 [outlining "admission criteria" and requiring that for each beneficiary, the provider shall both 8 establish medical necessity and identify the applicable DSM diagnostic code], at pp. 5-6.) In 9 , essence, petitioner asks this Court, like he asked the ALJ, to redefine his role as a physician and 10 medical director to one who can merely mbber stamp his signature on the intake forms, without 11 diagnosing the beneficiary and without identifying the applicable DSM diagnostic code. Such a 12 position is unsupported by the plain language of the regulation regarding the physician's role 13 during intake. 14 3. 15 16 The Plain Language of the Regulation Required Petitioner to Render a Medical Necessity Determination at the 90-Day DMC Treatment Update (Count 4). Petitioner primarily contends that he was not required to make a "medical necessity 17 determination" at the 90-day DMC treatment update period. Petitioner argues that the applicable 18 regulation "says nothing about the physician being required to make a medical necessity 19 determination every 90 days." (MPA at pp. 12:3-21, 13:5-9.) As such, petitioner argues that 20 "DHCS is retroactively adding requirements not in the statute." (MPA at pp. 4:21-22; see also id. 21 at 12:3-21.) Petitioner is incorrect. The regulatory requirements for the 90-day treatment update 22 are as follows: 23 (h)(2) Treatment Plan for each beneficiary. 24 (iii) The provider shall ensure that the treatment plan is reviewed and updated as described below: 25 26 27 (a) The counselor shall review and sign the updated treatment plan no later than ninety (90) calendar days after signing the initial treatment plan, and no later than every ninety (90) calendar dates thereafter, or when a change in problem identification or focus of treatment occurs, whichever comes first. 28 20 Respondent's Opposition to Petition for Writ of Mandate (34-2015-80002018) 1 2 (b) Within fifteen (15) calendar days of signature by the counselor, the physician shall review, approve, and sign all updated treatment plans. , 3 (Cal. Code Regs., tit. 22, § 51341.1, subd. (h)(2)(iii)(b); Vol. 10 [Tab 47] at p. 7 [outiining the 4 requirements at the 90-day mark], emphasis added.) Petitioner appears to beheve that his 5 "review," "approval," and "signature" require only that he pemse a DMC beneficiary's 6 paperwork, without regard to whether there is a continuing need for DMC services. Adopting his 7 view of this regulation would render superfluous the fact that he is supposed to be "approving" 8 the continued treatment plan for DMC services. Indeed, a DMC beneficiary is only permitted to 9 continue receiving DMC services "when determined medically necessary." (Cal. Code Regs., tit. 10 22, § 51341.1, subd. (a); Vol. 10 [Tab 47] at p. 1; see City of Alhambra v. Cnty. of Los Angeles 11 (2012) 55 Cal.4th 707, 719 [words of a statute should be given their ordinary meaning and 12 constmed in their statutory context]; Merrill v. Dept. of Motor Vehicles (1969) 71 Cal.2d 907, 13 918.) In granting his "approval," Dr. Oliver was authorizing each DMC beneficiary to continue 14 receiving DMC services. Thus, the regulations required him to find that there is a "medical 15 necessity" for the continued DMC services. 16 To bolster this point, the same regulation requires that medical necessity be determined 17 three times, including at the physician's review of each beneficiary's treatment plan and updates 18 pursuant to Subsection (h)(2). (Cal. Code Regs., tit. 22, § 51341.1, subd. (h)(l)(D)(i); Vol. 10 19 [Tab 47] at p. 6.) 20 21 22 4. Petitioner Was Required to Consider ^'Medical Necessity" at the 6Month DMC Treatment Update, Including Rendering a Diagnosis (Counts). Petitioner argues that the applicable Medi-Cal regulation "does not mandate the physician 23 utilize the DSM-IV criteria when making a medical necessity determination." (MPA at pp. 4:28- 24 5:1, 22:19-23:5, 24:21-25:2.) Petitioner's argument, however, ignores the context and referenced 25 regulations contained within the larger regulatory scheme. The specific requirements for the 6- 26 month treatment and update plan are as follows: 27 (h)(5) Continuing services shall be justified as shown below. .. (A) For outpatient dmg free... services: 28 21 • ^ Respondent's Opposition to Petition for Writ of Mandate (34-2015-80002018) 1 2 3 (i) No sooner than five (5) months and no later than six (6) months the beneficiary's admission to treatment date or the date of completion ..., the counselor shall review the progress and eligibility of the beneficiary to continue to receive treatment services, - • 4 (ii) If the counselor recommends that the beneficiary requires further treatment, the physician shall determine the need to continue services based on the following factors: 5 (a) the medical necessity of continued treatment; 6 (b) the prognosis; and 7 (c) the counselor's recommendation for the beneficiary to continue receiving services. 8 9 10 11 (Cal. Code Regs., tit. 22, § 51341.1, subd. (h)(5)(A)(ii)(a), emphasis added; Vol. 10 [Tab 47] at p. 8 [outlining the relevant requirements in effect at the time of hearing].) In determining "medical necessity," the medical provider is required to utilize the DSM. 12 In fact, petitioner appeared to have conceded this point during this testimony. (MPA at p. 13:12- 13 18, citing RT 650:18-25-651:1 [conceding that at six months, petitioner has to "re-evaluate 14 whether that treatment is medically necessary at that point in time under the DSM-IV criteria that 15 we've been discussing"].) 16 Furthermore, setting aside the specific issue of whether to utilize the DSM, Dr. Oliver 17 conceded that in signing the updated treatment plans and justification for continued services 18 forms, he had no intention of finding medical necessity. (AR Vol. 3 [Tab 9] RT at pp. 716:22- 19 718:3.) For example, when he was asked about one particular DMC beneficiary, and whether 20 there was evidence for continued services, petitioner changed his story and eventually conceded 21 that based on his review of the file, he couldn't justify continued services. {Id. at pp. 643:11 - 22 653:15.) Thus, whether or not he is required to use the DSM, he has already conceded that he 23 violated this regulation requiring that he determine medical necessity. 24 25 26 5. The Medi-Cal Regulatory Scheme Further Supports the ALJ's Determination that Dr. Oliver was Required to Utilize the DSM and Render a Medical Necessity Determination. The regulatory framework further supports these interpretations. In interpreting these 27 Medi-Cal regulations, the Court may look to the regulatory scheme of which the regulation is a 28 part, (see Merrill v. Dept. of Motor Vehicles, supra, 71 Cal.2d at p. 918.) "Whenever possible, ,. 22 Respondent's Opposition to Petition for Writ of Mandate (34-2015-80002018) 1 [the court] will interpret the regulation to.make it workable and reasonable." {Ibid) Courts also 2 look to the canons of statutory constmction to guide the court's quest for legislative intent. 3 {Medical Bd of Cal v Superior Court (2001) 88 Cal.App.4th 1001, 1013.) These include the 4 duty to harmonize statutes on the same subject if possible. {Ibid.; Garcia v. McCutchen (1997) 16 5 Cal.4th 469,478.) 6 Here, the regulatory scheme and framework support the Department's regulatory 7 interpretations. At noted above, at the very outset of the applicable regulations, it states: 8 "substance use disorder services, as defined in this section, provided to a Medi-Cal beneficiary, 9 shall be covered by the Medi-Cal program when determined medically necessary...." (Cal. 10 Code Regs., tit. 22, § 51341.1, subd. (a), emphasis added; Vol. 10, [Tab 47] at p. 1.) 11 Furthermore, the regulatory scheme maintains that "[f or a provider to receive reimbursement for 12 Dmg Medi-Cal substance use disorder services, those services shall be provided by or under the 13 direction ofa physician and the following requirements shall apply: (D) For each beneficiary, the 14 provider shall (i) Establish medical necessity consistent...." (Cal. Code Regs., tit. 22, § 15 51341.1, subd. (h)(l)(D)(i); Vol. 10 [Tab 47] at p, 6.) The regulation then clarifies that medical 16 necessity shall be determined three times: (1) "by the physician's admission of each beneficiary r 17 18 19 20 21 22 23 24 pursuant to Subsection (h)(1) of this regulation"; (2) "the physician's review and signature of each beneficiary's treatment plan and updates pursuant to Subsection (h)(2) of this regulation, and," (3) "the physician's determination to continue services pursuant to Subsection (h)(5) of this regulation." {Ibid., emphasis added.)^ In whole, these regulations demonstrate that the DMC services being provided to DMC beneficiaries must be determined to be medically necessary at, all stages of DMC treatment. As the DHCS witnesses explained, it is cmcial from both a patientcaiQ perspective and a fiscal perspective to ensure that Medi-Cal services being rendered are "medically necessary" at all stages of the DMC beneficiary's care. 25 26 27 .28 Califomia Code of Regulations, title 9, section 9533, subdivision (a) also references that the treatment must be "medically necessary." (ibid) " I f a client referred to treatment under the Act is eligible for Medi-Cal and is referred to a clinic . . . , the clinic shall seek Medi-Cal reimbursement for medically necessary services rendered pursuant to Section 51341.1, Title 22, CCR and Section 11758.46 of the Health and Safety Code." (/6/rf.) 23 Respondent's Opposition to Petition for Writ of Mandate (34-2015-80002018) 1 2 3 4 5 F. The ALJ Properly Determined that Petitioner Submitted False Information (Count 9). ^ Petitioner relies entirely on his argument asserted above to challenge the ALJ's finding on Count 9. (MPA at p. 25:16-24.) For the reasons outlined above, the ALJ properly concluded that given the outcomes on Counts 3-5, the evidence established that petitioner submitted false information in violation of the Medi-Cal regulations. (AR Vol. 1 [Tab 4], at pp. 96-98.) 6 .. G. 7 The ALJ Properly Determined that Petitioner Caused Excessive Services to be Rendered (Count 7). 8 The ALJ found for the Department on its Count 7, that petitioner caused excessive services 9 to be rendered in violation of Califomia Code of Regulations, title 22, section 51473. (Vol. 1 10 [Tab 4] at pp. 101:10-102:18.) In reaching this decision, the ALJ discussed the testimony of Dr, 11 Albers who found in reviewing the patient files, there were patients referred for treatment that did 12 not haye any medical necessity. {Id. at pp. 101:14-102:9.) In addition, the ALJ found that "Dr, 13 Oliver admitted that he approved initial and updated treatment plans, and authorized continuing 14 services for beneficiaries in DMC treatment plans regardless of whether the services were 15 medically necessary." (/rf. at p. 102:10-12.) "By authorizing unnecessary services to DMC 16 beneficiaries. Dr. Oliver has caused excessive services to be rendered and billed in violation of 17 Section 51473." {Id. at p. 102:13-15.) Consequently, the ALJ found that this was another ground 18 for indefinite suspension, (/rf. at p. 102:16-18.) 19 Petitioner challenges the weight of Dr. Albers's testimony.. (MPA at pp. 25:25-26:11.) 20 Without citation to any authority, petitioner asserts that Dr. Albers's testimony was "inadmissible 21 opinion." {Id. at p. 26:9-11.) Petitioner's argument fails for a number of reasons 22 First, as a threshold rhatter, it does not appear that petitioner objected to Dr. Albers's 23 testimony as "inadmissible opinion" during the hearing. (AR Vol. 2 [Tab 9] RT at pp. 111-279.) 24 It is well-established that issues not raised during the hearing, are waived. (5o. Cal. Underground 25 Contractors, Inc. v. City of San Diego (2003) 108 Cal.App.4th 533, 549.) 26 27 Second, petitioner's argument that Dr. Albers's testimony amounts to "inadmissible opinion" because she "lacked any addition [sic] medicine experience," is wholly without merit. 28 24 Respondent's Opposition to Petition for Writ of Mandate (34-2015-80002018) 1 (MPA at p. 26:4-5.) Dr. Albers testified extensively about her experience and qualifications to 2 render her determinations. (AR Vol. 2 [Tab 9], RT at pp. 112-114.) Dr. Albers started with 3 DHCS in July 2010 as a medical consultant in the Medical Review Branch of Audits and 4 Investigations. (AR Vol. 10 [Tab 32], at p. 1.) In this capacity, she reviews medical records as 5 part of audits of various healthcare providers for medical necessity of the services billed and for 6 the appropriateness and quality of the medical care given. {Ibid) She testified that she wais 7 familiar with the regulations defining Medi-Cal services. (AR Vol. 2 [Tab 9], RT at pp. 114:2-4.) 8 She also testified that she receives trainings from DHCS and that DHCS provides her with 9 relevant materials. (AR Vol. 2 [Tab 9], RT at pp. 158:9-25.) Petitioner presented no evidence 10 that Dr. Albers' medical determination based on her years of experience and credentials was 11 invalid because she lacked specific "addition [sic] medicine experience." (AR Vol. 2 [Tab 9] RT 12 at pp. 111-279; MPAatp. 26:4-5.) 13 Third, during the hearing petitioner argued that Dr. Albers' testimony was not conclusive 14 that the services were excessive. (AR Vol. 1 [Tab 4] at p. 102:7-8.) The ALJ addressed this point 15 and noted that regardless of Dr. Albers' testimony, there was evidence demonstrating that 16 services were excessive. {Id. at p. 102:7-9.) As such, the ALJ found a secondary evidentiary 17 ground on which to find for the Department for this count: petitioner's own concessions 18 regarding his lack of reviewing and authorizing treatments, (/rf. at p. 102:10-15.) 19 Finally, the evidence overwhelming supports this determination because the Department 20 demonstrated that petitioner caused excessive services to be rendered, (see supra at pp. 15-21,) 21 Dr. Oliver approved and updated treatment plans, and authorized continuing services for 22 beneficiaries in DMC treatment programs, regardless of whether the services were medically 23 necessary, as required by the Medi-Cal regulations. As such, petitioner caused excessive services 24 to be rendered and this was a ground for indefinite suspension. 25 // 26 „ H. 27 The ALJ Properly Determined that Petitioner Rendered Sub-Standard Services (Count 8). 28 25 Respondent's Opposition to Petition for Writ of Mandate (34-2015-80002018) 1 In challenging the ALJ's determination on Count 8, petitioner relies entirely on his prior 2 arguments which have already been addressed. (MPA at p. 26:12-27:1.) Specifically, petitioner 3 challenges the'ALJ's reliance on the DSM and the ASAM. (/i/rf.) For the reasons outiined 4 above, petitioner's arguments fail and this Court should conclude that the ALJ properly 5 concluded that petitioner rendered sub-standard care. 6 II. PETITIONER FAILS TO DEMONSTRATE THAT THE ALJ ABUSED H I S DISCRETION IN CONSIDERING THE TESTIIVIONV OF DHCS' WITNESSES. 7 8 Throughout petitioner's opening brief, he complains about the qualifications of DHCS' 9 witnesses. (MPA at p. 3:11-4:6.) However, petitioner fails to explain what effect this had on the 10 Department's nine separate conclusions that petitioner be suspended from Medi-Cal, such that it 11 12 would warrant overtuming that determination. {Ibid) A. The ALJ Properly Considered the Testimony of Dr. Albers. 13 Petitioner argues that the, ALJ erroneously considered Df. Albers's testimony because Dr. 14 Albers had "no experience working, auditing, any training, or even visiting any type of drug 15 treatment facility and specifically had no experience with DMC counseling centers prior to this 16 case." (MPA at pp. 3:11-19.) As outiined above, Dr. Albers's credentials, experience, and 17 trainings were discussed throughout the hearing. (See supra at p. 17 [outlining Dr. Albers's 18 qualifications].) The ALJ properly concluded that Dr. Albers's testimony established "that she 19 was qualified to give opinions whether Dr. Oliver's direction, as a physician, and determinations 20 of the medical necessity of the DMC outpatient counseling services rendered at various DMC 21 clinics for which he served as a Medical Director were in accordance with the requirements of 22 Califomia Code of Regulations, title 22, section 51341.1, the primary regulation implementing 23 the DMC program." (AR Vol. 1 [Tab 4] at p. 5.) Notably, at no point did petitioner object to Dr. 24 Albers's testimony as an expert. In sum, the ALJ properiy considered her testimony in rendering 25 his determinations.'° 26 27 28 Without any basis in law or evidence, petitioner asserts that the "Department provided its 'expert' with the Accusation before she ever reviewed any of the records, essentially telling the consultant what her findings would be." (MPA at p. 3:22-26.) There is absolutely no support (continued...) 26 Respondent's Opposition to Petition for Writ of Mandate (34-2015-80002018) 1 B. The ALJ Properly Considered the Testimony of Ms. Delgado. 2 Petitioner argues that the ALJ erroneously relied upon the Department's.investigator, Ms. 3 Delgado, (MPA at pp. 3:27-4:2.) Petitioner complains about her lack of authority. {Ibid) 4 However, the record reflects that Ms. Delgado has extensive background as an investigator for the 1. • . • • 5 Department. Starting in 2000, Ms. Delgado worked with the Department of Alcohol and Dmg 6 Programs as a students assistant. (AR Vol. 2 [Tab 9] RT at p. 36:16-17.) In that capacity, she 7 worked on the Substance Abuse Disorders Division, Program Services, Primary Prevention 8 Services, and she monitored programs as it related to the federal block grant. {Id. at p. 36:17-21.) 9 After two years with the Department of Alcohol and Dmg Programs, Ms. Delgado left the 10 Department to obtain her formal education, including two Associate of Arts degrees and one 11 Bachelor of Science degree in Criminal Justice, (/rf. at pp. 35:16-19, 36:22-23.) In 2008, Ms. 12 Delgado retumed to the same Department of Alcohol and Dmg Programs to work as an analyst 13 within the Primary Prevention Services. {Id. at p. 36:23-25.) In 2010, she transferred to the 14 Performance Management Branch within the same Department. {Id. at p. 37:3-9.) In that 15 capacity, she monitored all Califomia counties with compliance with the federal block grant as 16 well as the state-county contract, which Dmg Medi-Cal is a part of {Ibid) In 2012, her Branch 17 acquired the Dmg Medi-Cal prograrn and she became even more familiar with the relevant 18 regulations. {Id. at p. 37:10-19.) In February 2014, she was hired as the Staff Services Manager I 19 in the Medi-Cal Post Service Post Payment Utilization Review at the Department of Health Care 20 Services, {Id. at p. 36:10-12.) Her unit is responsible for conducting utilization reviews of all the 21 providers that provide Drug Medi-Cal services within Califomia. (/c/. at pp. 37:24-38:2.) 22 Essentially, her unit ensures that the Medi-Cal services are "rendered appropriately." (Id. 38:2-4.) 23 To that end, she reviews documentation "to ensure that services are provided in accordance with 24 Title 22, which is 51341.1 which governs the Dmg Medi-Cal program." {Id. at p. 38:5-7.) They 25 perform the tasks of an auditing team. {Id. at p. 38:10-16.) 26 (...continued) in the record that the Department told Dr. Albers "what herfindingswould be." Dr. Albers explicitly testified that she did not use the Accusation in rendering her report. (AR Vol. 2 [Tab 9], RT at p. 162:16-21.) 27 28 27 Respondent's Opposition to Petition for Writ of Mandate (34-2015-80002018) 1 In her current position, Ms. Delgado oversees the "development of the trainings for Title 22 2 specific to medical necessity and program integrity, as well as view[ing] specific trainings that 3 [the Department is] currently developing regarding Title 22 requirements under the Medi-Cal 4 program." (AR Vol. 2 [Tab 9] RT at pp. 35:23-36:7.) She ftirther explained that she has i 5 participated in several substance disorder trainings and "extensive training" related to substance 6 abuse disorders. {Id. at p. 36:4-7.) She has also "participated in several trainings with the 7 department related to Title 22 which govems the Dmg Medi-Cal service for Califomia." {Id. at p. 8 35:20-23; see also id. at p. 60:22-25 [reiterating her trainings on Title 22 requirements].) 9 10 In sum, petitioner fails to demonstrate that the ALJ abused his discretion in considering the testimony of Ms. Delgado. 11 C. The ALJ Properly Considered the Testimony of Mark Mimnaugh, R.N. 12 Petitioner asserts that Mark Mimnaugh, R.N. "had no relevant experience in his 33 years as 13 a nurse and he had no counseling or counseling center experience or been involved with dmg 14 treatment centers." (MPA at p. 4:3-7.) Petitioner provides no citing references or authority for 15 why Mr. Mimnaugh's testimony should not have been considered by the ALJ. Indeed, aside from 16 this short allegation, there does not appear to be any further argument regarding the impact of Mr. 17 Mimnaugh's testimony. Consequently, petitioner has failed to carry his burden in demonstrating 18 how this testimony warrants a complete reversal of the ALJ's decision. 19 III. 20 . 21 PETITIONER FAILS TO DEMONSTRATE THAT THE A L J ABUSED HIS DISCRETION REGARDING DISCOVERY DETERMINATIONS. . , Without citation to any authority, petitioner complains that the ALJ allowed the Department 22 to admit 6 exhibits on the Friday before the hearing and another exhibit (exhibit 49) on the 23 moming of the hearing. (MPA at p. 3:4-10.) Petitioner also makes passing references to his .24 discovery objections, without providing any authority or argument. (MPA at p. 5:5-8.) Petitioner 25 fails to demonstrate that the ALJ abused his discretion in admitting these documents. 26 Generally, the admission of improper or objectionable evidence will not constitute a 27 prejudicial abuse of discretion if there is sufficient competent evidence to support the agency's 28 decision. {So. Cal Jockey Club, Inc. v. Cal Horse Racing Bd (1950) 36 Cal.2d 167, 175 28 . Respondent's Opposition to Petition for Writ of Mandate (34-2015-80002018) 1 [substantial evidence]; Anserv Ins. Servs., Inc. v. Kelso (2000) 83 Cal.App.4th 197, 210 2 [independent judgment].) Even a hearing officer's impropriety in making statements to the 3 parties and questioning witnesses may not require the court to set aside the administrative 4 decision if competent, properly admitted evidence supports the decision. {West Coast Home 5 Improvement Co: v. Contractors' State License Bd. (1945) 72 Cal.App.2d 287, 299.) Moreover, 6 it has long been held that the "strict mles of evidence which obtain in the courts are not enforced 7 in administrative proceedings." {Jenner v. City Council (1958) 164 Cal.App.2d 490,496.) 8 Petitioner's cursory complaint (without citation to the record or authority) that DHCS allegedly 9 failed to provide exhibits in response to discovery fails to carry petitioner's burden in 10 demonstrating how the admission of these documents was a prejudicial abuse of discretion. 11 (MPA at p. 3:4-10.) In fact, other than identifying exhibit 49, petitioner fails to even identify the 12 other 6 exhibits. {Ibid.Y' Again, petitioner has not met his burden. 13 CONCLUSION 14 In light of the above, the Department respectfully requests that the writ of mandate be 15 denied in its entirety because petitioner has failed to demonstrate that the ALJ's decision is 16 "contrary to the weight ofthe evidence." {Fukuda v. City of Los Angeles, supra, 20 Cal.4th at 17 817;CodeofCiv.PrOc.,§ 1094.5, subd. (c).) 18 Dated: September 8, 2015 Respectfully Submitted, 19 KAMALA D . HARRIS 20 Attomey General of Califomia NiROMi W. PFEIFFER Supervising! Deputy Attomey General 21 22 . ^ K A R L I ElSENBERG 23 Deputy Attomey General Attorneys for Respondent California Department of Health Care Services 24 25 SA2015101927 n894923.doc 26 27 Notably, the ALJ did not rely on exhibit 49 in rendering his decision. (AR Vol. 1 [Tab 4], at pp. 25:20-35:5 [concluding that the Department's time study data, including exhibit 49, was not persuasive].) 28 29 Respondent's Opposition to Petition for Writ of Mandate (34-2015-80002018) DECLARATION OF SERVICE BY U.S. MAIL Case Name: Howard Oliver, D.O. v. Department of Health Care Services No.: 34-2015-80002018 I declare: I am employed in the Office of the Attomey General, which is the office of a member of the Califomia State Bar, at which member's direction this service is made. I am 18 years of age or older and not a party to this matter. I am familiar with the business practice at the Office of the Attomey General for collection and processing of correspondence for mailing with the United States Postal Service. In accordance with that practice, correspondence placed in the intemal mail collection system at the Office of the Attomey General is deposited with the United States Postal Service with postage thereon fully prepaid that same day in the ordinary course of business. On September 8. 2015.1 served the attached RESPONDENT'S OPPOSITION TO PETITION FOR WRIT OF ADMINISTRATIVE MANDAMUS by placing a tme copy thereof enclosed in a sealed envelope in the intemal mail collection system at the Office ofthe Attomey General at 1300 1 Street,.Suite 125, P.O. Box 944255, Sacramento, CA 94244-2550, addressed as follows: Raymond J. McMahon Doyle Schafer McMahon, LLP 100 Spectrum Center Drive, Suite 520 Irvine, CA 92618 Attorneys for Petitioner I declare under penalty of perjury under the laws of the State of Califomia the foregoing is tme and correct and that this declaration was executed on September 8,2015, at Sacramento, Califomia. Francina M. Stevenson Declarant SA2015101927 11983395.doc Signature