as

?war" 5' 2017 A - SERVICES

Team Builders Counseling Services, Inc. Susana Martinez, Governor
26 Kahoa Street Bren; Earnest, ISecgetary
. I .
H110, HI 96720-2205 an? 

Re: 

HEARING DECISION

On November 2, 2016, the Medical Assistance Division issued a hearing decision letter after
considering the record of the Fair Hearing held on August 15?, 2nd and 3rd, 2016, as well as the
enclosed report and recommendation of the Administrative Law Judge (ALI). That decision letter
directed the Department ?to perform a new extrapolation re?ecting adjustments to the referenced
claims identified by the 

However, the Department had already performed a new extrapolation that was included in the
hearing documents as an updated version of Exhibit 137. That revised document cited 11 claims
which were used to determine the oveIpayment amount of $2,057,715.00, the amount described
under the heading in the ALJ ?s recommendation.

The 11 claims are those listed by the ALJ under OF numbers 1 through 
While I adopt the ALIS ?ndings of fact, I note that the remaining claims in the findings of fact
through number 36 were not used to calculate the over payment amount of $2,057,715.00.

Therefore, with this hearing decision letter, I conclude that my original statement of the value of the
extrapolation not being accurate is incorrect and find that the Department does NOT have to
perform a new extrapolation because it had already been completed. The 11 claims were referenced
by the ALJ, under number 1, as follows:

?In light of the extremely rigorous standards set forth in policy which are applicable
to the 11 claims at issue and in light of the standard of proof to be met by HSD, the
undersigned determines that with respect to those 11 claims, the evidence goes in favor of
HSD. Therefore, the conclusion reached on this record is that HSD, via a preponderance of
the evidence, has established that these 11 claims were properly failed by it.?

I do not adopt the conclusions 2 and 3. Conclusion 2 incorrectly states that the extrapolation
is not valid. Conclusion 3 provides a recalculation of the overpayment by the ALJ which fails to
use the extrapolation method. Therefore, I also do not adopt the recommendation.

The combination of the testimony and documentary evidence presented at the Fair Hearing were
suf?cient for the Department to meet its evidentiary burden, as set forth in (2) 
NMAC, that a billing overpayment amount of $2,057,715.00 was made to Team Builders
Counseling Services, Inc., and is subject to recoupment by the Department.

MEDICAL ASSISTANCE DIVISION BOX 2348 - SANTA FE, NM 87504  PHONE: (505) 827-3103 FAX: (305) 827-3185

The Federal and State laws and regulations that are relevant to this decision are included in
the Hearing Of?cer?s report and are incorporated herein by reference.

If you do not agree with the decision, you may seek judicial review by ?ling a notice of
appeal within thirty (30) days from the date of this decision with the First Judicial District Court or
in the state district court having jurisdiction over the of?ce in which the hearing was conducted by
telephone. An appeal may result in reversal of the decision. The Department will not pay for any
fees or costs that you might incur as a result of an appeal.

Sincerely, 


icy Sn ith-Leslie, Direct0r

Medical Assistance Division

Enclosures

xc: Chester Boyett, HSD Fair Hearings Bureau
Knicole C. Emanuel, Esq., and Dorothy H. Murphy, Esq., Gordon Rees, LLP
John R. Emery, Deputy General Counsel, OGC


RECOMMENDATION OF THE ADMINISTRATIVE LAW JUDGE

TeamBuilders Counseling Services, Inc.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Represented by: Gordon Category: FH Case No: County: MAD
Rees, LLP Medicaid 
Program: Action in Question:
Medicaid Provider Overpayment
Hearing Hearing Original Scheduled/*Rescheduled *Number Report Decision
Request Request Due Hearing Dates: of Slippage Date: Due
Received Received Date: June 1, 2016 (Pre- Days Oct. 3, Date:
at ISD: at FHB: Aug. 22, Hearing Conference) Allowed: 2016 Oct. 28,
April 22, 2016 2016, as
2016 August 1 3, 2016 agreed to
(Hearing on the merits) by the
parties
*if applicable
RECOMMENDATION:

 

I recommend in part for HSD and in part for the Provider. Please refer to the attached Report
and Recommendation.



Chester Boyett 
Administrative Law Judge

10/3/2016

Knicole C. Emanuel, Esq. and Dorothy H. Murphy, Esq., Gordon Rees, LLP, 421 Fayetteville St.,
Suite 330, Raleigh, NC. 27601-1388

TeamBuilders, 26 Kahoa Street, Hilo, HI 96720-2205

Lisa C. Hahn-Cordes, Assistant General Counsel, and John R. Emery, Deputy General Counsel,
HSD Office of General Counsel, PO Box 2348, Santa Fe, NM 87504-2348

Medical Assistance Division, PO. Box 2348, Santa Fe, NM 87504?2348

 

TeamBuilders Counseling Services, Inc.
Case No. 16-PO-10012

RECOMMENDATION
ISSUE:

This matter arises out of the challenge by TeamBuilders Counseling Services (TBCS) to the Medicaid
billing overpayment alleged by the Human Services Department (HSD) as of August 2, 2016 in the amount
of $2,057,715.00. The applicable law and policies are contained and/or referenced in the hearing record and
include, at a minimum, the following (titles, chapters, and parts) from the New Mexico Administrative
Code: 7.20.2, 7.20.11, 7.20.12, 8302.1, 8302.2, 8305.1, 8305.17, 8310.8, 8310.13, 8315.3, 8315.6,
8321.2, 8321.4, 8322.2, 8.3223, 8322.5, 8351.2, and 8352.3.

RELEVANT HISTORY:

On April 18, 2016, TBCS requested a hearing in response to April 13, 2016 notice of overpayment
claim. A pre-hearing teleconference was held on June 1, 2016 and a Scheduling Order was entered later
that day. A Pre-Hearing Order was entered on July 27, 2016. A telephonic status conference was held on
July 29, 2016. The parties entered into a stipulated agreement and the Stipulated Agreement was ?led
herein on August 1, 2016. The Order on Proposed Exhibits was entered on August 1, 2016. The in-person
hearing took place on August 1 through 3, 2016. The parties agreed to a ?nal decision deadline of October
28, 2016. The burden of proving the case, via a preponderance of the evidence, was with HSD.

Chester Boyett, Administrative Law Judge, conducted the in~person hearing in Albuquerque, New Mexico.
Consuelo Lowe, Fair Hearings Bureau Chief, and David Sedillo, HSD's Fair Hearings Assistant
Bureau Chief, attended part of the in-person hearing. TBCS was represented at the hearing by attorneys
Knicole Emanuel and Dorothy Murphy. HSD was represented at the hearing by its Assistant General
Counsel Lisa Hahn-Cordes. The proceedings of the hearing were reported by the of?ce of Paul Baca
Professional Court Reporters. The following individuals, after being duly sworn, provided testimony under
oath:

Larry Heyeck (HSD witness);

Stasia Marzan (HSD witness);
Lorraine Freedle (TBCS witness);
Shannon Freedle (TBCS witness); and
Sun Vega (TBCS witness).



Both sides provided various proposed exhibits, with being marked alphabetically and being
marked numerically. These were dealt with via the August 1, 2016 Order on Proposed Exhibits, which is
incorporated herein by reference. The objection by TBCS to the undersigned? exclusion of certain portions
of its Exhibit 110 was overruled. Following the undersigned? receipt and review of 5 Exhibit MM
and 5 Exhibit 136, both were admitted into the record.

STATUTE OF LIIVIITATIONS ISSUE:

Both sides were asked to brief the statute of limitations issued raised by TBCS. This issue is addressed as
follows:

TeamBuilders Counseling Services, Inc.
Case No. 16-P0-10012
Page 2 of 12

Both TBCS and HSD noted in their respective briefs that Article 4 32 of the New Mexico Constitution
states:

No obligation or liability of any person, association or corporation held or owned by or
owing to the state, or any municipal corporation therein, shall ever be exchanged,
transferred, remitted, released, postponed or in any way diminished by the legislature, nor
shall such obligation or liability be extinguished except by the payment thereof into the
proper treasury, or by proper proceeding in court. ..

argument is that this:

constitutional provision prohibits the state legislature from taking any action that would in
any way extinguish an obligation owing to the state or restrict the state's right to pursue it. A
statute of limitations is, by de?nition, a legislative creation, the purpose of which is to
extinguish a party?s otherwise meritorious claim due to the passage of a speci?ed period of
time.

This comports with what appears to be a plain reading of the language in the New Mexico Constitution, to
the effect that no obligation or liability owing to the State shall ever in any way be diminished by the
legislature. Such a reading is reasonable given that, under the facts of this case, public funds are involved.
This is further buttressed by the language in NMAC, which mandates that records
required by Medical Assistance Division must be maintained by providers for at least six years from
the date of creation or until ongoing audits are settled, whichever is longer. If in fact HSD were to be found
to be constrained by the ?statute of limitations? time limits outlined in Chapter 37 of the New Mexico
statutes, the language in NMAC would be unnecessary, with respect to ?nalizations of
ongoing audits and any ensuing overpayment claims.

TBCS asserts that it should be granted relief based on the language in Chapter 37 of the New Mexico
statutes, citing to 37-1?4 and 37-1-3. The thrust of its argument is that HSD is bound by the ?statute of
limitations" language in Chapter 37 regarding its efforts to collect from TBCS the overpayment at issue.
TBCS has not pointed to any speci?c language in Chapter 37 that HSD, as an agency of the State, comes
within the ambit of Chapter 37 in its role as having initiated the process of alleged overpayment.

Both sides cited in their respective briefs to the New Mexico Supreme Court?s opinion in State ex rel.
Public Employees Retirement Association v. Longacre, 133 NM. 20. In Longacre, the
Court held that ?Section 10-] is a constitutional exercise of the legislature's power to enact a statute
of repose made speci?cally applicable to the state or its agencies.? Longacre involved the question of
whether an agency of the State could pursue beyond more than one year of allegedly overpaid retirement
bene?ts against not the original bene?ciary/recipient of the retirement bene?ts, but against the contingent
bene?ciary who had become, by operation of law, the recipient of the retirement bene?ts at issue.

view of the Court?s holding in Longacre is that the above?cited language in New Mexico?s
Constitution allows for the Legislature to create a statute of repose as long as any such statute minimally
permits the State some form of recovery against existing obligations or liabilities. view of the
Court?s holding in Longacre is narrower, to the effect that while the above-cited language in New Mexico?s
Constitution does not prevent the Legislature from creating ?statutes of repose" that limit the State?s period

TeamBuilders Counseling Services, Inc.
Case No. 16-P0-10012
Page 3 of 12

within which to seek recovery, this is true only where the statute is speci?cally directed at the State and
does not extinguish existing liabilities.

In light of the language in Article 4 32 of New Mexico?s Constitution and the lack of language in Chapter
37 that speci?cally places HSD (in terms of its role as having initiated the process of alleged overpayment)
within the ambit of Chapter 37, HSD's view of the Court?s holding in Longacre is the better argument.

As another of its arguments, TBCS stated in its brief (with respect to its assertion that HSD could be held to
certain federal limitations in its attempt to recover alleged overpaid claims) that cannot circumvent
the statute of limitations imposed on a RAC [Recovery Audit Contractor] entity merely by claiming it was
not acting as a RAC entity.? brief thereafter states that:

Pursuant to 42 C.F.R. 455.5086), a Medicaid RAC ?must not review claims that are older
than 3 years from the date of the claim, unless it receives approval from the State.? In order
to approve a request from its RAC to review claims that are greater than three years from the
date of the claim, a State must ?rst obtain an exception from the three year statute of
limitation from the Centers for Medicare Medicaid Services through the State
Plan amendment process, as provided under 42 C.F.R. 455.516.

Based on this language, HSD is the principal and not the Recovery Audit Contractor agent) and thus
could not be acting as the RAC entity in this matter. Accordingly, the conclusion reached is that those
certain federal limitations referenced by TBCS are not applicable to HSD in its role as having initiated the
process of alleged overpayment. In other words, 42 C.F.R. 455.508(f) appears to be speci?cally aimed at
not State Medicaid agencies HSD).

In light of the above, the conclusion reached is that HSD has the more persuasive argument on the ?statute
of limitations" issue. Therefore, the undersigned concludes that all of the claims connected with this appeal
(whether or not an individual claim has been alleged as having been overpaid) were properly within the
scope of this overpayment hearing.

After all reasonably available evidence was obtained and having been considered and in light of the
conclusion reached on the statute of limitations issue, the Administrative Law Judge adopts the parties?
uncontroverted facts (as outlined below) and makes the following Findings of Fact (as outlined below):

UNCONTROVERTED FACTS:

1. TBCS is a behavioral health provider with 52 locations in 17 counties in New Mexico, through
contracts with HSD to provide mental health services to Medicaid eligible New Mexico residents.

2. On June 24, 2013, HSD noti?ed TBCS that HSD would suspend Medicaid payments to TBCS
immediately based on a ?credible allegation of fraud? pursuant to 42 C.F.R. 

3. On June 26, 2013, TBCS submitted a Good Cause Request to release the Medicaid Payment hold.

4. The Attorney General's of?ce determined that there was insuf?cient evidence of fraud as stated in
its corre3pondence of April 5, 2016.

TeamBuilders Counseling Services, Inc.
Case No. 16-P0-10012
Page 4 of 12

5. On April 13, 2016, HSD issued a notice of its overpayment claim to TBCS.

6. On April 18, 2016, TBCS timely requested a Fair Hearing.

FINDINGS OF FACT:

1.

On October 7, 2011, client B. 8-, born on was seen by her therapist, Jani
Drewfs, LPCC. During the session, the client was note to involve herself in various play activities
dealing with make-believe characters. The therapist noted her impression of the client's actions
during the session (which involved the client?s story regarding the make-believe characters, with a
?resolution? reached), with the therapist indicating that the client?s presentation could have been
based on a situation involving the client?s parents. The therapist listed the results of a mental status
examination and outlined various steps in terms of a therapy plan. Expected length of treatment was
anticipated to take up to 12 months or longer. This session was billed under procedure code 90806
in the amount of $66.93. A treatment plan, listing the primary problem as oppositional de?ant
disorder, was signed on October 14, 2011 by the client?s mother. The treatment plan listed several
short-term objectives/therapeutic interventions, with ?entry? dates of October 7, 2011 and ?target"
dates of January 7, 2012. The documentation regarding the October 7, 2011 session demonstrated
some supportive interaction by the therapist, but the documentation did not demonstrate
interventions regarding therapeutic change or behavior modi?cation. (Exhibit R, p. 8 9 and 10 
Therapy Note dated October 7, 2011; Exhibit N, PCG 150 Random Review claims, p. 1, second
row; testimony of Ms. Marzan, Day 1, p. 52, lines 3 6)

Procedure code 90806 is for 45 50 minutes of face-to-face interactive interventions which are
focused and time-limited. Interventions are designed to improve functioning and increase
independence. Interventions are relevant to the needs of the recipient and relate directly to the
individualized goals and objectives speci?ed in the recipient?s treatment plan. This service includes
individual (child or adult), family, and group counseling. (Exhibit AA, p. 2, NM Behavioral Health
Design Service List By HIPAA Code and De?nition)

On November 25, 2009, client J. S- was seen by his therapist. The therapy note
regarding this session lists the starting time, but the ending time was not included on the therapy
note. This session was billed under procedure code 90806 in the amount of $69.00. Provider
records must be sufficiently detailed to substantiate (among other details) the date, time, and length
of the session which is billed. (Exhibit R, p. 41, Therapy Note; Exhibit N, PCG 150 Random
Review claims, p. 3, thirteenth row; testimony of Ms. Marzan, Day 1, p. 53, line 22 p. 54, line 3,
and p. 55, lines 1 6)

On March 20, 2010, client K. B- was seen by her therapist. This session was billed under
procedure code 90846 in the amount of $66.93. During the hearing in this matter, this claim was
conceded by TBCS. (Exhibit R, p. 157, Therapy Note dated March 20, 2010; Exhibit N, PCG 150
Random Review claims, p. 3, thirteenth row from the bottom; concession by counsel for TBCS, Day
2, p. 5, lines 19 22)

On August 20, 2009, client C. A- was seen by her therapist. The therapy note regarding this
session lists the starting time, but the ending time was not included on the therapy note. This

TeamBuilders Counseling Services, Inc.
Case No. 16-PO-10012
Page 5 of 12

session was billed under procedure code 90846 in the amount of $69.00. Provider records must be
suf?ciently detailed to substantiate (among other details) the date, time, and length of the session
which is billed. (Exhibit R, p. 96, Therapy Note; Exhibit N, PCG 150 Random Review claims, p. l,
seventh row; testimony of Ms. Marzan, Day 1, p. 55, lines 22 24 and lines I 6)

6. On September 12, 2011, client J. 0-, born on and his family members

were seen by his therapist in the client?s home. The therapy note regarding this session reflected
that the therapist used ?touch to bring mom awarene[ss] to child [client] when child was trying to
get mom[?s] [attention].? This session was billed under procedure code 90846 in the amount of
$66.93. The service de?nition for procedure code 90846 is for those situations where family
members are present but the client is absent from the therapy session. (Exhibit R, p. 130, Therapy
Note; Exhibit N, PCG 150 Random Review claims, p. 1, third row from bottom; testimony of Ms.
Marzan, Day 1, p. 56, line 17 p. 57, line 9; Exhibit AA, p. 4, NM Behavioral Health Design
Service List By HIPAA Code and De?nition)

7. On January 12, 2011, client D. R- underwent a evaluation and a mental health
screening. The plan outlined in the evaluation report included maintaining his current
mediations while re-adapting to home/community schooling, with a recommendation for BMS
[Behavior Management Services]. The preliminary treatment plan outlined in the mental health
screening, in connection with an estimated length of service of ?long term,? was that he was to be
considered for various services, including but not limited to ?Family Services/CCSS? and
Assessment.? On March 17, 2011, a claim regarding procedure code H2015HN
[Comprehensive Community Support Services or in the amount of $64.80 was submitted. A
comprehensive assessment of each client?s clinical needs is to be completed prior to writing the
client?s comprehensive treatment plan. The lack of a comprehensive assessment was the basis for
the failure of this claim. (Exhibit R, p. 218, Evaluation, p. 225, Mental Health
Screening; Exhibit N, PCG 150 Random Review claims, p. 4, ?fth row; Exhibit V, p. 54 55,
testimony of Ms. Marzan, Day 1, p. 60, line 25 p. 61, line 25)

8. As of June 23, 2009, client R. N- (aka R. age I, had undergone a 
assessment. Among other issues, the client reported a one-year period of alcohol use as a teenager,
but her current status as an occasional social drinker. The diagnostic impressions included Axis I,
311 Depressive Disorder, not otherwise speci?ed, and Axis V, 50. On July 1, 2009, a claim
regarding procedure code H2017HQ rehabilitation services] in the amount of $136.50
was submitted. As of July 30, 2009, the client had undergone a substance abuse evaluation. The
diagnostic impressions resulting from the substance abuse evaluation included Axis 1, 296.05
Bipolar I Disorder, Single Manic Episode, In Partial Remission, and Axis V, 49. The Serious
Mental Illness Criteria Checklist (February, 2009) speci?es that adult clients must have one of the
qualifying diagnoses contained therein and which had been determined within the prior 12 months
in order to be eligible. In terms of the client, her June 23, 2009 diagnosis of 311 Depressive
Disorder, not otherwise speci?ed, is not qualifying, with respect to the July 1, 2009 claim. (Exhibit
R, p. 445 451, Assessment dated June 23, 2009, Exhibit N, PCG 150 Random
Review claims, p. l, eleventh row; Exhibit R, p. 459 462, Substance Abuse Evaluation dated July

 

The date of birth and the Medicaid member number for R. M-(Exhibit N, PCG
150 Random Review claims, p. I, eleventh row) match the date of birth and the Medicaid
member number for R. N-(Exhibit R, p. 491, clinical records).

TeamBuilders Counseling Services, Inc.
Case No. 16-P0-10012
Page 6 of 12

30, 2009; Exhibit 54, Serious Mental Illness Criteria Checklist; testimony of Ms. Marzan, Day 1, p.
67, line 17 p. 68, line 14)

9. On October 14, 2009, the client, A. G-, underwent a evaluation. Thereafter, on
November 4, 2011, the client underwent an assessment regarding her functional and needs
and also signed a safety plan/no-harrn contract. On November 12, 2011, the client participated in
the development of a plan of care and then signed the Plan of Care document. A claim was billed
regarding the client concerning a date of service of November 17, 2011 under procedure code
H2017HQ rehabilitation services] in the amount of $101.80. The regulation
regarding the requisite treatment plan indicates that the Treatment Plan (or the documents used in
the development of the treatment plan) must include the following:

a. A statement of the nature of the speci?c problem and speci?c needs of the client;

b. A detailed description (involving 8 types of assessment to be performed) of the
functional level and status of the client;

c. A description of the recipient?s intermediate and long-range goals and approaches for
the least restrictive conditions necessary to achieve the purposes of treatment with a
projected timetable for their attainment;

d. A statement of the duration, frequency, and rationale for services included in the
treatment plan for achieving these intermediate and long-range goals, including
provisions for review and modi?cation of the plan;

6. A statement of speci?c staff responsibilities, proposed staff involvement and orders for
medication(s), treatments, restorative and rehabilitative services, activities, therapies,
social services, diet and special procedures recommended for the health and safety of the
client;

f. A statement of the criteria for the discontinuation of services and the projected date for
discontinuation of services; and

g. An acknowledgement regarding regular, periodic review of the plan to determine
effectiveness of treatment and for modi?cation of the plan as indicated.

The documents comprising the client?s ?le contain various elements referenced in the applicable
regulation, but there is no formal treatment plan for rehabilitation services. Most, but
not all, of the elements2 referenced in the applicable regulation are present in the documents
comprising the client?s ?le.

(Exhibit R, p. 506 508, TM Evaluation dated October 14, 2009, p. 515 - 518,
Functional and Needs Assessment dated November 4, 2011, p. 519 - 520, Safety Plan and
?No Harm Contract? dated November 4, 2011, p. 524 535, Plan of Care dated November 12,
2011; Exhibit N, FCC 150 Random Review claims, p. 4, nineteenth row; Exhibit V. p. 179 180,
8.315816 testimony of Ms. Marzan, Day 1, p. 68, line 16 - p. 70, line 7; Exhibit R,
client?s ?le)

 

2 While one goal in the November 4, 2011 initial plan of care was listed as the
targeting of daily/functional living skills within the next 30 days (with the stated ?outcome?
as the client was still struggling with skills development), one of her in terms of
?daily and independent living skills? was that she was helpful in this area. However, she was
concurrently noted as ?lacks [activities of daily living]? and ?needs life skills."
Therefore, based on this inconsistency, the undersigned is unable to conclude that a proper
ADL assessment could be considered to have been conducted.

'll?earnBuilders Counseling Services, Inc.
Case No. 16-PO-10012
Page 7 of 12

10. On January 7, 2011, a claim regarding procedure code Q3014 [tele-health services] in the amount of

11.

12.

13.

$22.47 was submitted regarding the client, I. V. and the claim had no indication that the service
had occurred via telemedicine. This was in connection with the concurrent claim regarding the
client involving procedure code 90801GT. The associated clinical record, 9080] 
Evaluation (MD) dated January 7, 2011, signed by Tuvia Breuer, DO, and listing the 
of?ce address in Santa Fe, New Mexico, makes no mention of these claims involving the provision
of tele-health services, but does note that the client had moved to Santa Fe, New Mexico within the
past year. The modi?er (regarding the concurrent claim 90801GT) denotes ?video interactive
audio and video telecommunications systems.? [Dre-Appointment Information Form lists
the client?s address in Santa Fe, New Mexico, indicates that he ?has been seen with Teambuilders
since 2006," and was seen ?in May at Zia Dr. Bruer January 7, 2011 Informed
Consent for Treatment form lists the client?s name, ?Team-Builders Zia Behavioral Health Clinic
(hereafter and is an acknowledgement that Zia ?also provides health services via telehealth.?
Other TBCS clinical records involving other TBCS clients, both pre?dating and post-dating January
7, 201 l, have a designation of in the title of each such clinical record. In looking at the 9080]
Evaluation (MD) clinical record dated January 7, 2011, there was no indication that
this service occurred via telemedicine, while other clinical records for other clients regarding similar
services did have a delineation regarding telemedicine being involved. (Exhibit N, PCG 150
Random Review claims, p. 4, seventh row; Exhibit R, p. 551, Practima (Billing and Claims) screen
print-out; Exhibit R, p. 538 540, 90801 Evaluation (MD) dated January 7, 2011;
Exhibit B, p. 55, Clinic/Group Reimbursement Schedule effective July 1, 2009; Exhibit R, p. 543 
545 and p. 557 561, individual TM Evaluation or TM Note clinical records
regarding other clients; testimony of Ms. Marzan, Day 1, p. 70, line 22 p. 71, line 25)

On November 30, 2011, a claim regarding procedure code H2015HM in the amount of $121.05
regarding 9 units was submitted concerning the client, E. G-. This was in connection with the
November 30, 2011 treatment session which began at 10:48 am. and ended at 12:24 for a total
of one hour and 36 minutes, which is the equivalent of six units. (Exhibit N, PCG 150 Random
Review claims, p. 4, sixteenth row from the bottom; Exhibit R, p. 184, TeamBuilders CCSS Activity
Note dated November 30, 2011; testimony of Ms. Marzan, Day 1, p. 59, lines 1 14)

A provider is responsible for all claims submitted under its national provider identi?er (NPI) or
other provider number including responsibility for accurate coding that represents the services
provided. Services billed on the basis of time units spent with an eligible recipient must be
suf?ciently detailed to document the actual time spent with the eligible recipient. The provider is
responsible for submitting the claim timely, for tracking the status of the claim, and determining the
need to resubmit the claim. If a provider does not submit a corrected claim timely, the amount of
money paid on the original claim is subject to recoupment, even if a corrected claim would have
resulted in a higher payment amount. Providers are required to self-audit and whether a claim is
underbilled or overbilled, providers can correct only within 365 days. Once that deadline has
passed, then the entire amount of an erroneous claim is to be recouped. (Exhibit V, p. 136,
NMAC, p. 137, NMAC, p. 147, testimony of
Mr. Heyeck, Day 1, p. 16, line 19 p. 17, line 3, p. 33, lines 15 - 21)-

On June 16, 2010, a claim regarding procedure code H2015HO in the amount of $110.94 was
submitted regarding the client, D. M- This claim was failed in connection with the June 16,
2010 treatment session having been conducted by therapist G. ?Dubbyf? Harcharik, whose ?Master

TeamBuildei-s Counseling Services, Inc.
Case No. 16-P0-10012
Page Social Wor degree was not awarded to her until May 14, 2012. Billing for procedure code
H2015HO requires that the service provider have at least a master?s degree or higher in a human
services?related ?eld. (Exhibit N, PCG 150 Random Review claims, p. 1, ?fteenth row from the
bottom; Exhibit R, p. 352, eamBuilders CCSS Activity Note dated June 16, 2010; testimony of Ms.
Marzan, Day 1, p. 63, line 3 p. 64, line 5; Exhibit R, New Mexico Highlands University transcript,
p. 386; Exhibit 67, Comprehensive Community Support Services H2015 (15 minute unit),
revised November 20, 2007, p. 1)

Since prior to the dates of service regarding the 11 claims at issue, providers have been mandated to
maintain all documentation (with suf?cient detail, including but not limited to that which will
substantiate the length of a session of service billed) necessary to fully disclose the nature, quality,
amount, and medical necessity of each such service. This includes the requirement that provider
records must be suf?ciently detailed to substantiate the codes used on each claim submitted.
(Exhibit V, p. 136 137, NMAC)

The reimbursement schedule for value-added services lists a service code of T1005 and indicates
that this code is for a ?value added" service. The reimbursement schedule was effective July 1,
2009 and revised April 12, 2010. (Exhibit B, p. 97, ?Value Added Svcs.? reimbursement schedule)

The "value?added codes and services? document lists a service code of T1005 and indicates that this
code is for a ?value added" service. The document notes that value added services are not included
in the managed care Medicaid bene?t package and shall not be construed as Medicaid?funded
services, bene?ts, or entitlements under the New Mexico Public Assistance Act. (Exhibit BB, p. 35,
?Value Added Codes and Services" document)

The ?service requirements and utilization guidelines? document concerning respite care services
indicates that the sole source of funding regarding the speci?ed target population in connection with
respite care (T1005) is CYFD [Children, Youth Families Department]. The document notes that
T1005 may not be billed in conjunction with certain other services (foster care and speci?ed in-
patient treatment settings). TBCS had state contracts through CYFD to deliver behavioral re5pite
care. (Exhibit X, p. 13 l6, Respite Care Services T1005, revised September 28, 2010;
testimony of Dr. Freedle, Day 2, p. 67, lines 17 18)

The respective expert statistician witnesses of TBCS and HSD were provided with the same set of
written questions previously agreed to by all counsel, to which each such expert witness responded
in writing under oath. One of the questions was set forth as:

Non-Medicaid funded services3 [original footnote to the question displayed below]
were included in the sample and thus assumed to have been included in the sampled
universe. Given the inclusion of non-Medicaid services in this Medicaid audit, what
is the effect on the universe, sample, and extrapolation?

 

3 These non-Medicaid funded services were billed to and paid from either capitated
State general fund allocations or Value Added Services funds
which are for services not included in the State Medicaid plan and paid from the payer?s
pro?t line.

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Case No. 16-PO-10012
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19.

20.

21.

22.

23.

24.

25.

expert witness responded, in part, as follows:

[S]ince the universe and the sample are contaminated with claims (non-Medicaid
claims)??which are outside of the target population parameters and are not
representative of the target population comprising the universe (Medicaid claims
from 1 July 2009 through 31 January 2013), then one cannot trust any resulting
extrapolation. This raises the question ?To what universe does the extrapolation
pertain??

l-lSD?s expert witness responded, in part, as follows:

The proper (and mathematically correct) way to handle this situation is to leave the
claims with non?Medicaid funded services in the sample and in the universe but to
assign an error value (overpayment) of zero for any of these claims that appeared in
the sample. It is my understanding that this is precisely the methodology used in
the Tearnbuilders audit.

(Exhibit 136, TBCS Expert Statistician Witness Witmer Responses, and Exhibit MM, HSD Expert
Statistician Witness Kvanli Responses)

The universe of TBCS claims includes a code of T1005, a paid amount of $40.00, a notation of 8
units, and a date of service of September 17, 2012 for client A. 11-. (Exhibit 137, PCG
Universe and Sample, Universe tab, line number 211639)

The sample of TBCS claims includes a code of T1005, a recoupment amount of $40.00, a notation
of 3 units, and a date of service of September 17, 2012 for client A. 11-. (Exhibit 137, PCG
Universe and Sample, Random Sample tab, line 48)

The universe of TBCS claims includes a code of T1005, a paid amount of $40.00, a notation of 8
units, and a date of service of September 5, 2012 for client 11-. (Exhibit 137, PCG Universe
and Sample, Universe tab, line number 93823)

The sample of TBCS claims includes a code of T1005, a recoupment amount of $40.00, a notation
of 8 units, and a date of service of September 5, 2012 for client T. H-. (Exhibit 137, PCG
Universe and Sample, Random Sample tab, line 21)

The universe of TBCS claims includes a code of T1005, a paid amount of $80.00, a notation of 16
units, and a date of service of July 6, 2012 for client H. R-. (Exhibit 137, PCG Universe and
Sample, Universe tab, line number 196911)

The sample of TBCS claims includes a code of T1005, 3 recoupment amount of $80.00, a notation
of 16 units, and a date of service of July 6, 2012 for client H. R-. (Exhibit 137, PCG Universe
and Sample, Random Sample tab, line 42)

The universe of TBCS claims includes a code of T1005, a paid amount of $40.00, a notation of 8
units, and a date of service of September 19, 2012 for client F. G-. (Exhibit 137, PCG
Universe and Sample, Universe tab, line number 211708)

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26.

27.

28.

29.

30.

31.

32.

33.

34.

35.

36.

The sample of TBCS claims includes a code of T1005, 21 recoupment amount of $40.00, a notation
of 8 units, and a date of service of September 19, 2012 for client F. . (Exhibit 137, PCG
Universe and Sample, Random Sample tab, line 49)

 

The universe of TBCS claims includes a code of T1005, .31 paid amount of $45.00, a notation of 9
units, and a date of service of January 11, 2012 for client M. M-. (Exhibit 137, PCG Universe
and Sample, Universe tab, line number 377746)

The sample of TBCS claims includes a code of T1005, 3 recoupment amount of $45.00, a notation
of 9 units, and a date of service of January 11, 2012 for client M. (Exhibit 137, PCG
Universe and Sample, Random Sample tab, line 84)

The universe of TBCS claims includes a code of T1005, a paid amount of $40.00, a notation of 8
units, and a date of service of September 15, 2011 for client 0. A-L-. (Exhibit 137, PCG
Universe and Sample, Universe tab, line number 451227)

The sample of TBCS claims includes a code of T1005, a recoupment amount of $40.00, a notation
of 8 units, and a date of service of September 15, 2011 for client 0. (Exhibit 137,
PCG Universe and Sample, Random Sample tab, line 97)

The universe of TBCS claims includes a code of T1005, a paid amount of $80.00, a notation of 16
units, and a date of service of July 6,2010 for client C. (Exhibit 137, PCG Universe and
Sample, Universe tab, line number 551412)

The sample of TBCS claims includes a code of T1005, 3 recoupment amount of $80.00, a notation
of 16 units, and a date of service of July 6, 2010 for client C. LI. (Exhibit 137, PCG Universe
and Sample, Random Sample tab, line 115)

The universe of TBCS claims includes a code of T1005, a paid amount of $30.00, a notation of 6
units, and a date of service of June 5, 2012 for client N. T-. (Exhibit 137, PCG Universe and
Sample, Universe tab, line number 616244)

The sample of TBCS claims includes a code of T1005, a recou ment amount of $30.00, a notation
of 6 units, and a date of service of June 5, 2012 for client N. (Exhibit 137, PCG Universe
and Sample, Random Sample tab, line 130)

The universe of TBCS claims includes a code of T1005, a aid amount of $40.00, a notation of 8
units, and a date of service of July 27, 2012 for client P. . (Exhibit 137, PCG Universe and
Sample, Universe tab, line number 663303)

The sample of TBCS claims includes a code of T1005, a recoupment amount of $40.00, a notation
of 8 units, and a date of service of July 27, 2012 for client P. VI. (Exhibit 137, PCG Universe
and Sample, Random Sample tab, line 142)

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APPLICABLE LAW:

The overarching applicable law regarding recoupment and Provider hearings includes, but is not limited to,
8351.2 (Sanctions and Remedies) and 8352.3 (Provider Hearings) NMAC. The applicable regulations (as
listed above), billing/coding instructions, and related directives and guidelines are those listed and/or
referenced in the August 1, 2016 Order on Proposed Exhibits which were admitted into the hearing record.
The undersigned also takes notice of 42 CFR which mandates that a provider must maintain all
the records necessary to fully disclose the nature, quality, amount, and medical necessity of services
furnished to eligible recipients.

CONCLUSION:

1.

Under the applicable regulations, TBCS was required to maintain all the records necessary to fully
disclose the nature, quality, amount, and medical necessity of services furnished to eligible
recipients who have received services. Records must be suf?ciently detailed to substantiate Speci?c
details of services, including but not limited to the appropriateness of the services provided.
Services billed but not substantiated in the eligible recipient's clinical records are subject to
recoupment. It was the responsibility of TBCS to access, understand, and comply with the
requirements set forth in all Medicaid billing policies and related materials. TBCS had the duty to
contact HSD or its authorized agents to obtain answers to questions related to or not covered by
these materials.

It cannot be disputed that these are extremely rigorous standards, both as to scope and as to detail.
This is only appropriate, given that the expenditure of public funds is involved. The conclusion
reached is that the proper reading of these requirements and standards is that the payor
(HSD/Medicaid), as Opposed to an individual provider, must be satis?ed as to the suf?ciency of the
records to ensure the correct administration of the Medicaid program. Otherwise, the related
language in policy (to the effect that providers must contact HSD if there are questions by providers
about billing policies and materials) would be superfluous. TBCS put forward several points in this
case in support of its claim of compliance4, which were taken into consideration in connection with
what HSD had presented as its case. In light of the extremely rigorous standards set forth in policy
which are applicable to the 11 claims at issue and in light of the standard of proof to be met by
HSD, the undersigned determines that with respect to those 11 claims, the evidence goes in favor of
HSD. Therefore, the conclusion reached on this record is that HSD, via a preponderance of the
evidence, has established that these ll claims were properly failed by it.

expert statistician witness indicated his understanding to the effect that the necessary
corrective action had been taken regarding the universe of claims and the associated sample
containing both Medicaid and non-Medicaid paid claims (gt; Finding of Fact Since the
universe and the sample on which the extrapolation was based contain at least nine instances of non-
Medicaid paid claims which were r_10_t assigned a value of zero (the corrective action which 
expert statistician witness indicated would be necessary in order for the audit to be valid), the

 

4 One of contentions was, in effect, that billing records could be used to
substantiate submitted claims. This point was not persuasive, as it is the clinical/medical
records which must be the substantiation for the billing/coding of claims.

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extrapolation is not valid. Since the extrapolation is not valid, HSD's claimed extrapolated
overpayment amount should not be upheld.

3. The total dollar amount of the 11 claims at issue, listed in the ?rst half of the Findings of Fact
section above, equals $896.35.

Based on all of the above, the undersigned determines that the evidence regarding the 11 individual claims

goes in favor of HSD, but further determines that the evidence regarding the resulting extrapolation and
ensuing alleged overpayment amount does not go in favor of HSD and therefore makes the following:

RECOMMENDATION:

The Administrative Law Judge hereby recommends to the Director of the Medical Assistance Division of
HSD that she uphold the overpayment, but only in the amount of $89635.

October 3, 2016

Chester Boyett, Admiri-i?strative Law Judge