Opinion
No. 86-385
Decided December 26, 1986.
Evidence — Administrative law — Presumption found in Ohio Adm. Code 5101:3-50-22(C) applicable, when.
O.Jur 2d Social Security § 9.
The presumption found in Ohio Adm. Code 5101:3-50-22(C) applies separately to each sample case contained in a valid report of examination.
APPEAL from the Court of Appeals for Franklin County.
The Ohio Department of Public Welfare, Division of Medical Assistance, Bureau of Surveillance and Utilization Review ("SUR"), examined appellant Clarence D. Cotterman's Medicaid records. The technique used by SUR was to randomly collect one hundred ninety sample cases, out of a total of over five thousand Medicaid cases, covering the period from April 1, 1976 through May 31, 1977. These sample cases were reviewed and a final report of examination of provided records ("ROE") was issued which concluded Dr. Cotterman had been overpaid $43,000 for Medicaid services rendered. A reevaluation conducted thereafter modified the alleged overpatment to approximately $27,000.
At Dr. Cotterman's request, a hearing was conducted before an Ohio Department of Public Welfare ("ODPW") hearing examiner. At the hearing evidence was presented with respect to seventeen of the one hundred twenty-three sample cases remaining after reevaluations. Of the seventeen cases, appellant prevailed on nine cases. An additional forty-two other cases were found in appellant's favor based upon the examiner's conclusion that the treatment of obesity was a Medicaid-covered service.
The cases that remained were treated pursuant to Ohio Adm. Code 5101:3-50-22(C) which reads, in pertinent part, as follows:
"Any * * * report of examination * * * issued by the department and entered into evidence shall be considered prima facie evidence of what it asserts."
Accordingly, the examiner issued her report which reflected her findings in favor of appellee on fifty-one of the sample cases, reducing the total amount of the alleged overpayment to roughly $15,000. The basis for these findings was the examiner's adoption of ODPW's contention that the presumption contained in Ohio Adm. Code 5101:3-50-22(C) applied individually to each sample case contained in the ROE. The examiner therefore reasoned that Dr. Cotterman had the burden of producing evidence sufficient to counterbalance the presumption as to each sample case.
Three reasons were advanced to support the examiner's conclusions:
"First, the construction placed upon the rule by provider would effectively render the rule useless. By merely producing evidence to rebut one of, many sample cases, a provider could obliterate ODPW's findings which are strongly supported by available evidence. Moreover by requiring provider to produce evidence to support his contentions, ODPW has placed the burden of production on the party who has superior access to the proof. As the treating physician, the provider would have more complete information concerning the nature of the office visits upon which disallowances or reductions were made. * * * Finally, the finding on one sample case has no relevance nor effect on any other sample case. Disallowances and reductions are made on a case by case basis; therefore, a finding on one sample case is independent of the finding in another sample case. * * *" (Emphasis sic.)
In those instances where the ODPW had evidence presented to support the sample cases, the examiner found that the presumption was inapplicable. Finally, the examiner concluded that even under appellant's construction of the rule, there was insufficient evidence presented by him to counterbalance the presumption.
Over Dr. Cotterman's objections, the ODPW adopted the examiner's report and issued an adjudication order requesting payment of $15,805.25. Appeal was made, pursuant to R.C. 119.12, to the court of common pleas which subsequently entered judgment in favor of Dr. Cotterman and vacated the adjudication order. The ODPW, in turn, appealed to the court of appeals, which reversed the order of the court of common pleas.
The cause is now before this court pursuant to the allowance of a motion to certify the record.
Wristen Ucker Co., L.P.A., David A. Ucker and Ellen L. Wristen, for appellant.
Anthony J. Celebrezze, Jr., attorney general, Sheila P. Cooley and Johnnie DeWilde, for appellee.
The issue presented for review is whether the presumption set forth by Ohio Adm. Code 5101:3-50-22(C) may be rebutted as to all sample cases based upon the successful rebuttal of a number of sample cases. For the reasons to follow, we reject appellant's arguments and hold that the presumption found in Ohio Adm. Code 5101:3-50-22(C) applies separately to each sample case contained in a valid report of examination.
Appellant contends that Ohio Adm. Code 5101:3-50-22(C) "* * * creates a rebuttable presumption that the contents of an ROE are valid, which presumption is rebutted if it is proven that the ROE contains any specific claim which is incorrect." (Emphasis added.) Thus, the operative concern is whether individual cases are severable and independent for the purposes of rebutting the presumption.
Appellant presents one case, Del Vecchio v. Bowers (1935),
296 U.S. 280, to buttress his position. Del Vecchio involved the presumption against suicide in the context of a workers' compensation claim for death benefits. Appellant asserts the relevance of language by the United States Supreme Court that "[o]nce the employer has carried his burden by offering testimony sufficient to justify a finding of suicide, the presumption falls out of the case. * * *" Id. at 286.
This assertion is neither novel nor startling and was recently reaffirmed, in a similar factual context, by this court in Evans v. National Life Acc. Ins. Co. (1986), 22 Ohio St.3d 87, paragraph one of the syllabus. This rule does not, however, support appellant's position. The uncontested issue of how a presumption may be rebutted as described in Del Vecchio with respect to one case does not address the issue today with regard to multiple cases. Del Vecchio is therefore factually and analytically irrelevant to the present cause.
In our evaluation of the provision in question, we recognize that Ohio Adm. Code 5101:3-50-22(C) places the burden of production, not the burden of proof, on appellant to rebut each sample case. To this end, each individual case may be reviewed and evidence presented to rebut the presumption, resulting in the provider's position being upheld. This is precisely what occurred with the fifty-one sample cases successfully appealed to the examiner by appellant. In other instances, where evidence is presented by the ODPW with respect to a case or cases, the presumption would ab initio be inapplicable. Ayers v. Woodard (1957), 166 Ohio St. 138 [1 O.O.2d 377], paragraph three of the syllabus. In still other cases, the ODPW may fail to carry its burden of proof if the examiner fails to find the existence of underlying facts to support the remaining sample cases even if the provider has not offered evidence to rebut the presumption. In short, the law appears both fair and clear. We must therefore decline to accept Dr. Cotterman's contention that the law is "in unacceptable disarray."
We find persuasive the policy rationales articulated by the examiner and court of appeals to support the administrative rule in question. The adoption of appellant's interpretation would render the rule useless and would remove the burden of production from the party who has superior access to the proof and who should have an incentive to maintain complete and detailed records. Because disallowances and reductions are rendered on an individual case-by-case basis, a finding in one sample case is generally independent of the findings in another sample case. Where the evidence or argument that effectively rebuts one sample case is relevant to other sample cases, however, such evidence or argument may be applied to other sample cases. This occurred, to appellant's benefit, in the instant cause when the hearing examiner concluded that treatment of obesity was a covered service and applied that finding to forty-two sample cases. This does not support appellant's contention that all sample cases should be automatically rebutted once one sample case is successfully rebutted.
We therefore hold today that the presumption found in Ohio Adm. Code 5101:3-50-22(C) applies separately to each sample case contained in a valid report of examination. Accordingly, we affirm the judgment of the court of appeals.
Judgment affirmed.
CELEBREZZE, C.J., SWEENEY, HOLMES, C. BROWN, DOUGLAS and WRIGHT, JJ., concur.