Opinion
C090618
10-07-2021
FAMILY HEALTH CENTERS OF SAN DIEGO, Plaintiff and Appellant, v. STATE DEPARTMENT OF HEALTH CARE SERVICES, Defendant and Respondent.
Murphy, Campbell, Alliston & Quinn, George E. Murphy, Sacramento; Douglas S. Cumming Law Office and Douglas S. Cumming, Folsom, for Plaintiff and Appellant. Rob Bonta, Attorney General, Matthew Rodriguez, Acting Attorney General, Cheryl L. Feiner, Assistant Attorney General, Gregory D. Brown and Kevin L. Quade, Deputy Attorneys General, for Defendant and Respondent.
Certified for Partial Publication.
For good cause it now appears that the opinion, with the exception of parts III through VI, should be published in the Official Reports, and it is so ordered.
Murphy, Campbell, Alliston & Quinn, George E. Murphy, Sacramento; Douglas S. Cumming Law Office and Douglas S. Cumming, Folsom, for Plaintiff and Appellant.
Rob Bonta, Attorney General, Matthew Rodriguez, Acting Attorney General, Cheryl L. Feiner, Assistant Attorney General, Gregory D. Brown and Kevin L. Quade, Deputy Attorneys General, for Defendant and Respondent.
KRAUSE, J.
This case concerns the determination of a reasonable reimbursement rate for a federally qualified health center (FQHC) participating in the Medi-Cal program.
As part of a request to receive a higher reimbursement rate, plaintiff Family Health Centers of San Diego (Family Health) submitted a cost report detailing the reimbursable costs incurred by its clinics in providing covered services to Medi-Cal patients. The cost report also identified certain nonallowable costs pertaining to inpatient obstetric (OB) services provided at outside hospitals, subcontracted medical services, and subcontracted homeless services. Because the costs were not allowable Medi-Cal costs, Family Health eliminated them from its cost report. As part of an audit, however, defendant State Department of Health Care Services (the Department) determined the costs should not have been eliminated from the cost report. Instead, the Department reclassified the costs to a nonreimbursable cost center, which had the effect of disallowing a proportionate share of the clinics’ administrative overhead costs. Family Health filed an administrative appeal to dispute the audit adjustments, but, after a formal hearing, its appeal was denied. Family Health then filed a petition for a writ of mandate challenging the administrative decision, which also was denied.
Family Health appeals the trial court's judgment denying its petition. Family Health contends that the Department did not establish a proper basis for reclassifying the costs to a nonreimbursable cost center, and that the decision to reclassify the costs was not supported by substantial evidence. Family Health separately argues that a significant subset of the costs should not have been included in the nonreimbursable cost center because they were not costs at all. We affirm the judgment denying the petition.
BACKGROUND
A. Legal background
The federal Medicaid program is a cooperative federal-state assistance program designed to expand access to medical care for low income persons. ( Department of Health Services v. Superior Court (1991) 232 Cal.App.3d 776, 778, 283 Cal.Rptr. 546 ; 42 U.S.C. § 1396 et seq. ) Through the program, the federal government provides financial assistance to states so that they may reimburse health care providers who furnish necessary medical services to qualified indigent persons. ( Robert F. Kennedy Medical Center v. Belshé (1996) 13 Cal.4th 748, 751, 55 Cal.Rptr.2d 107, 919 P.2d 721 ; Three Lower Counties Community Health Services, Inc. v. State of Maryland (4th Cir. 2007) 498 F.3d 294, 297 ( Three Lower Counties ).) California participates in the Medicaid program through its California Medical Assistance Program, or "Medi- Cal." (Welf. & Inst. Code, § 14000 et seq. ; Robert F. Kennedy Medical Center, supra , 13 Cal.4th at p. 751, 55 Cal.Rptr.2d 107, 919 P.2d 721.) The Department is the state agency responsible for administering California's Medi-Cal program in compliance with the state Medicaid plan and applicable federal and state Medicaid laws and regulations. ( Redding Medical Center v. Bontá (1999) 75 Cal.App.4th 478, 480, 89 Cal.Rptr.2d 348 ( Redding ); Welf. & Inst. Code, § 14203 ; Cal. Code Regs., tit. 22, § 50004 ; 42 U.S.C. § 1396a(a)(5) ; 42 C.F.R. §§ 431.1, 431.10 (2021).)
Among the services covered under the Medi-Cal program are those provided by FQHC's, community-based health care providers that receive federal grant funding for furnishing primary and specialty care services in medically underserved areas. ( Three Lower Counties, supra , 498 F.3d at p. 297 ; Welf. & Inst. Code, § 14132.100, subd. (a) ; 42 U.S.C. §§ 254b, 1396a(a)(15) & (bb), 1396d(a)(2)(C) & (l )(2).) The state is required to reimburse FQHC's for their covered Medi-Cal services. ( 42 U.S.C. § 1396a(bb).) Thus, FQHC's in California have two potential sources of compensation: federal grants for providing services not covered by Medi-Cal to medically underserved communities, and state reimbursements for providing covered services to qualified Medi-Cal beneficiaries. (See Legacy Cmty. Health Servs. v. Smith (5th Cir. 2018) 881 F.3d 358, 363 ; Cmty. Health Care Assn. of N.Y. v. Shah (2d Cir. 2014) 770 F.3d 129, 136 ; Alameda Health Sys. v. Ctrs. for Medicare & Medicaid Servs. (N.D.Cal. 2017) 287 F.Supp.3d 896, 902 ; 42 U.S.C. § 254b(k)(3)(F) ; 42 C.F.R. §§ 413.5, 413.9(b) (2021).) The Medi-Cal program uses a prospective "per-visit" rate to reimburse FQHC's for services provided to qualified Medi-Cal beneficiaries. ( Welf. & Inst. Code, § 14132.100, subd. (c).) An average "per-visit" rate is determined by dividing the FQHC's total "allowable" costs by the number of patient visits. ( Three Lower Counties, supra , 498 F.3d at p. 298 ; 42 U.S.C. § 1396a(bb).) The FQHC's reimbursement is then calculated by multiplying the actual number of patient "visits" by the fixed per-visit rate. ( Three Lower Counties , at p. 298 ; Welf. & Inst. Code, § 14132.100, subds. (c) & (g).)
Although the law contemplates alternative methods of calculating an FQHC's reimbursement rate, this is the method used by Family Health in connection with its change-in-scope-of-service request in this case. (Welf. & Inst. Code, § 14132.100, subd. (i).)
An FQHC's "allowable" costs are determined in accordance with applicable Medicare cost principles, as described in part 413 of title 42 of the Code of Federal Regulations, and as further interpreted by the Centers for Medicare & Medicaid Services Publication 15-1, The Provider Reimbursement Manual (hereafter, the "PRM"). ( Welf. & Inst. Code, § 14132.100, subds. (e)(1) & (i)(2)(B)(ii) ; Oroville Hospital v. Department of Health Services (2006) 146 Cal.App.4th 468, 472, 52 Cal.Rptr.3d 695 ; see also Community Care Foundation v. Thompson (D.D.C. 2006) 412 F.Supp.2d 18, 22-23 [PRM entitled to high degree of deference as interpretations of Medicare regulations].)
Medicare cost principles state that payments to providers must be based on the reasonable cost of covered services related to the care of beneficiaries. ( 42 C.F.R. §§ 413.9(a), (b) & (c)(3) (2021) ; PRM §§ 2100, 2102.1, 2102.2, 2102.3, 2103 (rev. 454, 09-12).) Reasonable cost includes all "necessary and proper" costs incurred in rendering services. ( 42 C.F.R. §§ 413.5(a), 413.9(a), (b) & (c)(3) (2021) ; PRM § 2100 (rev. 454, 09-12).) Necessary and proper costs are those "that are appropriate and helpful in developing and maintaining the operation of patient care facilities and activities," and are "usually ... common and accepted occurrences in the field of the provider's activity." ( 42 C.F.R. § 413.9(b)(2) (2021) ; PRM § 2102.2 (rev. 454, 09-12).) Reasonable cost takes into account both direct and indirect costs, including, without limitation, administrative overhead. ( 42 C.F.R. §§ 413.5(c), 413.9(c)(3), 413.102, 413.134, 413.153, 413.157 (2021) ; PRM §§ 2102.2 (rev. 454, 09-12), 2150 (rev. 315, 12-84), 2150.2 (rev. 315, 12-84).)
Cost reimbursement principles require providers to maintain and produce cost data, based on financial and statistical records that are current, accurate, and have sufficient detail to determine the costs payable under the program. ( 42 C.F.R. §§ 413.20, 413.24 (2021) ; PRM §§ 2300, 2304 (rev. 336, 08-86); Redding, supra , 75 Cal.App.4th at p. 481, 89 Cal.Rptr.2d 348.) Standard accounting principles and reporting practices must be followed. ( 42 C.F.R. § 413.20(a) (2021).)
It is the intent of the program to reimburse providers for all costs reasonably incurred in treating program beneficiaries—but only those costs. ( 42 U.S.C. § 1396a(bb)(2) ; see Three Lower Counties, supra , 498 F.3d at p. 298 ; Chase Brexton Health Services Inc. v. Maryland Dept. of Health & Mental Hygiene (D.Md. Dec. 15, 2006, No. MJG-03-1548) 2006 WL 6593814, at *2.) The regulations seek to avoid cost shifting between program beneficiaries and nonbeneficiaries. ( 42 C.F.R. §§ 413.5, 413.9(b)(1), 413.50(b) (2021) ; PRM § 2102.1 (rev. 454, 09-12); Charter Peachford Hospital, Inc. v. Bowen (11th Cir. 1986) 803 F.2d 1541, 1544.) Thus, after determining what costs are allowable, the regulations require the total allowable costs to be apportioned between program beneficiaries and other patients so that the share borne by the program is based upon the services received by program beneficiaries. ( Charter Peachford, supra , 803 F.2d at pp. 1544-1545 ; Visiting Nurse Assn. v. Thompson (E.D.N.Y. 2004) 378 F.Supp.2d 75, 81 ; 42 C.F.R. §§ 413.50, 413.53 (2021) ; PRM §§ 2200.1 (rev. 406, 08-98), 2202.3 (rev. 245, 01-81).)
In general, cost data must be based on an approved method of cost finding, the process used to determine the total costs of services rendered through the assignment of direct costs and apportionment of indirect costs. ( Redding, supra , 75 Cal.App.4th at p. 481, 89 Cal.Rptr.2d 348 ; 42 C.F.R. § 413.24(b)(1) (2021) ; PRM §§ 2300, 2302.7, 2306, 2307 (rev. 336, 08-86).) The federal regulations provide guidance on cost finding methods and principles. ( 42 C.F.R. § 413.24(d) (2021).)
In this case, the Department applied the cost finding methodology described in subdivision (d)(7) of part 413.24 of title 42 of the Code of Federal Regulations, which provides, in relevant part: "The costs that a provider incurs to furnish services to free-standing entities with which it is associated are not allowable costs of that provider. Any costs of services furnished to a free-standing entity must be identified and eliminated from the allowable costs of the servicing provider, to prevent ... payment to that provider for those costs. This may be done by including the free-standing entity on the cost report as a nonreimbursable cost center for the purpose of allocating overhead costs to that entity. If this method would not result in an accurate allocation of costs to the entity, the provider must develop detailed work papers showing how the cost of services furnished by the provider to the entity were determined. These costs are removed from the applicable cost centers of the servicing provider. ( 42 C.F.R. § 413.24(d)(7) (2021).) The PRM gives examples of how to allocate indirect costs associated with nonallowable cost centers, such as a gift or coffee shop. (PRM § 2328(D) (rev. 414, 05-00).) It provides: "Where cost centers are maintained for these functions ..., the cost should be carried forward for cost finding and receive an allocable share of general service costs. After the allocation is made, the total cost of these functions must be excluded in determining reimbursable costs.... Where the costs (direct and allowable share of general service costs) attributable to any nonallowable cost area are so insignificant as to not warrant establishment of a nonreimbursable cost center, these costs may be adjusted on the Adjustments to Expenses worksheet of the cost reporting forms." (PRM § 2328(D), (rev. 414, 05-00).)
The statutory scheme requires the Department to audit cost reports submitted in connection with a requested adjustment to a per-visit rate based on a change in the scope of services. ( Welf. & Inst. Code, §§ 14132.100, subd. (i)(2)(B)(i ), (i)(3)(C), 14170.) The purpose of the audit is to substantiate and adjust the FQHC's actual, allowable costs per visit based on the Medicare reasonable cost principles. ( Welf. & Inst. Code, §§ 14132.100, subd. (i)(2)(B)(i ), (ii ), (i)(3)(C) ; Cal. Code Regs., tit. 22, §§ 51016, subd. (a)(2), (6), 51021.)
If the FQHC disagrees with the audit findings, an administrative appeal procedure is available to review any disputes. ( Welf. & Inst. Code, § 14171 ; Cal. Code Regs., tit. 22, § 51017 et seq. ) At an appeal hearing, the Department has the burden of producing evidence sufficient to make a prima facie case that the audit findings were correctly made. Once the Department has presented such a prima facie case, the burden shifts to the provider to demonstrate, by a preponderance of the evidence, that its position regarding the disputed issues is correct. ( Cal. Code of Regs., tit. 22, § 51037, subd. (i).)
B. Factual and procedural background
On or about December 1, 2014, Family Health submitted a request to adjust its prospective per-visit reimbursement rate based on a change in the scope of services for the fiscal period ending June 30, 2014. Family Health included a consolidated cost report for eight FQHC clinics as well as a separate home office cost report.
Because the clinic sites are classified as a consolidated group, a single per-visit rate was calculated and applied to all the clinic sites.
In the clinic cost report, Family Health identified certain costs that were not allowable under Medi-Cal because they were associated with nonreimbursable services, namely: (1) $732,637 in physician salaries and benefits related to inpatient hospital OB services; (2) $2,766,253 in subcontracted medical services; and (3) $924,953 in subcontracted homeless services. Because these costs were not allowable, Family Health excluded them from its clinic cost report.
During its audit, however, the Department determined that excluding the nonallowable costs from the cost report was not the proper approach. Rather, because the costs had a substantive, material connection to clinic operations, the Department determined they should remain in the cost report in a nonreimbursable cost center, thereby absorbing a proportionate share of the clinics’ total overhead costs. The net effect of this change was to reduce Family Health's total allowable costs and reduce its adjusted per-visit reimbursement rate. Based on the audit, the Department set a per-visit rate of $207.55, an increase from the preexisting rate of $182.06, but lower than the rate of $221.52 sought by Family Health.
Family Health appealed the Department's cost adjustments, contending the disputed amounts were appropriately excluded from its clinic cost report. After a formal administrative hearing, the administrative law judge (ALJ) issued a proposed decision upholding the Department's audit findings. The Chief ALJ subsequently adopted the proposed decision as the final administrative decision.
Thereafter, Family Health filed a petition for writ of mandate seeking review of the administrative decision. The superior court denied the petition and entered judgment in favor of the Department. This appeal followed.
DISCUSSION
I
Standard of Review
"When reviewing the denial of a petition for writ of administrative mandate under Code of Civil Procedure section 1094.5, we ask whether the public agency committed a prejudicial abuse of discretion. ‘Abuse of discretion is established if the [public agency] has not proceeded in the manner required by law, the order or decision is not supported by the findings, or the findings are not supported by the evidence.’ [Citations.]" ( County of Kern v. State Dept. of Health Care Services (2009) 180 Cal.App.4th 1504, 1510, 104 Cal.Rptr.3d 43.)
In determining whether the administrative findings are supported by the evidence, the scope of our review is the same as the trial court. ( Hi-Desert Medical Center v. Douglas (2015) 239 Cal.App.4th 717, 730, 190 Cal.Rptr.3d 897.) We review the entire administrative record to determine whether the agency's findings are supported by substantial evidence. ( Ibid . ; Code Civ. Proc., § 1094.5, subd. (c).) " ‘We do not reweigh the evidence; we indulge all presumptions and resolve all conflicts in favor of the [agency's] decision. Its findings come before us "with a strong presumption as to their correctness and regularity." [Citation.] We do not substitute our own judgment if the [agency's] decision " ‘ "is one which could have been made by reasonable people...." [Citation.]’ " ’ [Citations.]" ( California Youth Authority v. State Personnel Bd. (2002) 104 Cal.App.4th 575, 584, 128 Cal.Rptr.2d 514 ; accord, Oak Valley Hospital Dist. v. State Dept. of Health Care Services (2020) 53 Cal.App.5th 212, 224, 266 Cal.Rptr.3d 870.) If a finding is supported by substantial evidence, we may not disregard or overturn it merely because a contrary finding would have been equally or more reasonable. ( Boreta Enterprises, Inc. v. Department of Alcoholic Beverage Control (1970) 2 Cal.3d 85, 94, 84 Cal.Rptr. 113, 465 P.2d 1 ; Boling v. Public Employment Relations Bd. (2018) 5 Cal.5th 898, 912, 236 Cal.Rptr.3d 109, 422 P.3d 552.)
The interpretation of a regulation or a statute is, of course, a question of law. While an administrative agency's interpretation of the laws it is charged with enforcing may be entitled to deference, the court is the ultimate arbiter of the interpretation of the law. ( Spanish Speaking Citizens’ Foundation, Inc. v. Low (2000) 85 Cal.App.4th 1179, 1214, 103 Cal.Rptr.2d 75 ; McCormick v. County of Alameda (2011) 193 Cal.App.4th 201, 207-208, 122 Cal.Rptr.3d 505 ; Yamaha Corp. of America v. State Bd. of Equalization (1998) 19 Cal.4th 1, 7-8, 12, 14, 78 Cal.Rptr.2d 1, 960 P.2d 1031 ; Villanueva v. Fidelity National Title Co. (2021) 11 Cal.5th 104, 122-123, 276 Cal.Rptr.3d 209, 482 P.3d 989.)
Family Health, as the party challenging the administrative decision, bears the burden of demonstrating there was a prejudicial abuse of discretion. ( Elizabeth D. v. Zolin (1993) 21 Cal.App.4th 347, 354, 25 Cal.Rptr.2d 852.) II
Use of "Materiality" Standard
This case involves the question of how costs of certain nonreimbursable services should be treated in the Family Health clinics’ Medi-Cal cost report, namely, whether the costs should be directly eliminated, as Family Health proposed in its cost report, or reclassified into a nonreimbursable cost center, as the Department determined in its audit. In the administrative decision, the ALJ concluded that the answer to this question turns on the strength, or materiality, of the connection between the nonreimbursable services and the clinics’ onsite operations. If the clinics provided "material" support for the nonreimbursable services, then, the ALJ concluded, a portion of the clinics’ indirect (overhead) costs properly should be allocated to such services by means of a nonreimbursable cost center.
On appeal, Family Health argues the ALJ erred by using a "materiality" standard, which it contends is both impermissibly subjective and legally unsupported.
As a preliminary matter, we conclude that Family Health has forfeited this argument by failing to raise it below. " ‘ "[I]t is fundamental that a reviewing court will ordinarily not consider claims made for the first time on appeal which could have been but were not presented to the trial court." ’ " ( Kashmiri v. Regents of University of California (2007) 156 Cal.App.4th 809, 830, 67 Cal.Rptr.3d 635.) " ‘Appellate courts are loath to reverse a judgment on grounds that the opposing party did not have an opportunity to argue and the trial court did not have an opportunity to consider. [Citation.] In our adversarial system, each party has the obligation to raise any issue or infirmity that might subject the ensuing judgment to attack. [Citation.] Bait and switch on appeal not only subjects the parties to avoidable expense, but also wreaks havoc on a judicial system too burdened to retry cases on theories that could have been raised earlier.’ [Citation.]" ( Ibid . ; accord, Fair Political Practices Com. v. Californians Against Corruption (2003) 109 Cal.App.4th 269, 281, 134 Cal.Rptr.2d 659.)
In this case, Family Health challenged the sufficiency of the evidence to support the materiality findings, but it did not raise any challenge to the materiality standard itself, and it offers no reason for its failure to do so. Accordingly, we conclude Family Health has forfeited the issue.
But even if the argument were not forfeited, we still would reject the claim on the merits. The ALJ did not err in using a "materiality" standard when assessing whether the nonreimbursable services bore a sufficient connection to clinic operations to require an allocation of overhead costs.
As discussed, payments to providers must be based on the reasonable cost of services related to the care of Medi-Cal beneficiaries. (Redding, supra , 75 Cal.App.4th at p. 481, 89 Cal.Rptr.2d 348.) Under the regulations, reasonable cost includes all necessary and proper expenses incurred in furnishing covered services to beneficiaries, including both direct and indirect costs. ( 42 C.F.R. §§ 413.5(a), 413.9(b) & (c)(3) (2021) ; PRM § 2102.2 (rev. 454, 09-12).) Although the regulations may not use the term "material," the objective of the regulations is to apportion the total allowable costs of a provider between program beneficiaries and other patients so that the costs with respect to individuals covered by the program will not be borne by individuals not so covered, and the costs with respect to individuals not so covered will not be borne by the program. ( Redding , at p. 481, 89 Cal.Rptr.2d 348 ; 42 C.F.R. §§ 413.9(b)(1), 413.50(b), 413.53(a) (2021) ; PRM §§ 2102.1 (rev. 454, 09-12), 2202.3 (rev. 245, 01-81).) Thus, the regulations are focused on the connection between a provider's costs and its reimbursable services.
Where a provider has engaged in both reimbursable and nonreimbursable services, the regulatory scheme requires the Department to determine how much of the provider's costs, both direct and indirect, should be allocated to the nonreimbursable services to avoid cost shifting between program beneficiaries and other patients. The ALJ's references to materiality simply carry out this inquiry, asking whether the nonreimbursable services bore a sufficient (i.e., significant or material) connection to the clinics’ onsite activities such that a portion of the clinics’ overhead costs properly should be allocated to them. We find this approach entirely consistent with the regulatory cost-finding methodology. (See, e.g., PRM § 2328(D) (rev. 414, 05-00) [where nonallowable costs are "insignificant," they need not be carried forward to a nonreimbursable cost center].) Indeed, Family Health's expert, Kelly Hohenbrink, used a materiality standard—or, more precisely, an immateriality standard—when opining that there was an insufficient basis to allocate a portion of the clinic overhead to the nonreimbursable subcontractor activities.
We do not find the concept of "materiality" to be impermissibly vague or subjective. It is a widely used and well understood term, especially in the context in which it was used. Thus, we conclude the ALJ's focus on materiality was not an abuse of discretion.
See footnote *, ante .
The judgment denying the petition for writ of mandate is affirmed. The Department shall recover its costs on appeal. ( Cal. Rules of Court, rule 8.278(a)(1) & (2).)
We concur:
MURRAY, Acting P. J.
HOCH, J.