Opinion
No. COA15-1391
08-16-2016
DORA P. BULLOCK, Petitioner, v. NORTH CAROLINA DEPARTMENT OF HEALTH AND HUMAN SERVICES, DIVISION OF MEDICAL ASSISTANCE, Respondent.
Attorney General Roy Cooper, by Assistant Attorney General Rajeev K. Premakumar, for the State. Dora P. Bullock, petitioner-appellant, pro se.
An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure. Granville County, No. 15 CVS 238 Appeal by petitioner from order entered 7 October 2015 by Judge Kendra D. Hill in Granville County Superior Court. Heard in the Court of Appeals 11 May 2016. Attorney General Roy Cooper, by Assistant Attorney General Rajeev K. Premakumar, for the State. Dora P. Bullock, petitioner-appellant, pro se. McCULLOUGH, Judge.
Dora P. Bullock ("petitioner") appeals from an order granting the North Carolina Department of Health and Human Services', Division of Medical Assistance, ("respondent") motion to dismiss. For the reasons stated herein, we affirm the order of the trial court.
I. Background
On 11 August 2014, petitioner filed a "Petition for a Contested Case Hearing" in the Office of Administrative Hearings ("OAH") asserting that respondent had "refused to authorize all prior approvals of N.C. Medicaid clients served by me through my counseling agency in Vance County."
Petitioner's case was heard on 17 December 2014. On 12 March 2015, Administrative Law Judge Donald W. Overby ("ALJ Overby") entered a "Final Decision" in favor of respondent. The issue before ALJ Overby was:
Whether the Respondent substantially prejudiced Petitioner's rights and acted erroneously, failed to use proper procedure, and failed to act as required by law or rule when it denied payment for certain Medicaid claims billed through the Respondent's Medicaid Managed Information System ("NC Tracks") instead of through the appropriate Local Management Entity - Managed Care Organization ("LME-MCO").The following findings of fact were entered, in pertinent part:
1. Petitioner . . . is a Licensed Professional Counselor residing in Granville County, North Carolina.
2. The term "1915(b)/(c) Waiver" (hereinafter "Waiver") refers to two sections of the Social Security Act that allow states to apply for waivers from federal Medicaid policy. Specifically, the (b) Waiver allows Medicaid beneficiaries to enroll in managed care plans and allows states to limit the Medicaid provider network based upon needs of recipients.
. . . .
4. Respondent published a Medical Special Bulletin in February 2012 that detailed the changes to providers
resulting from Waiver expansion. The Special Bulletin has been posted on Respondent's website since its publication in February 2012. (Resp. Ex. 1).
5. The bulletin states: "During a transition process over the next year, Medicaid-funded mental health, substance abuse, and intellectual/developmental disability services (MH/SA/IDD) will be administered by one of eleven Local Management Entities (LMEs) operation Medicaid Managed Care Organizations (MCOs) as DMA vendors. Medicaid recipients will be mandatorily enrolled into each LME-MCO's benefit plan based upon county of Medicaid eligibility." (Resp. Ex. 1, p. 2).
6. The bulletin further states that "[e]ach LME-MCO will be responsible for enrolling providers into the LME-MCO network, providing prior authorization, and processing claims" for certain services, including "Outpatient Behavioral Health Services . . . (DMA Clinical Coverage Policy 8C)[.]" (Resp. Ex. 1, p. 2).
7. Providers, such as Petitioner, were instructed that each LME-MCO would assume responsibility for then-current mental health services authorizations and that providers would "need to send all new and concurrent authorization requests to their LME-MCO once the LME-MCO begins Medicaid operations" and once then-current authorizations ended. (Resp. Ex. 1, p. 3).
8. Providers, such as Petitioner, were further instructed that they were "required to enroll in the LME-MCO provider network to ensure that Medicaid services are authorized and that corresponding Medicaid claims are processed by the LME-MCO. After the transitional dates listed below, providers will no longer be able to seek prior authorization from a [utilization review] vendor or bill Medicaid directly for behavioral health services." (Resp. Ex. 1, p. 4).
. . . .
10. Regarding payment for services, providers were instructed as follows: Providers should continue to bill Medicaid for all dates of service prior to the effective start date of the LME-MCO operations. After the start-date of LME-MCO operations (listed below), all behavioral health claims for services listed above should be billed to the appropriate LME-MCO." (Emphasis added) (Resp. Ex. 1, p. 5).
11. PBH, now known and operating as Cardinal Innovations Healthcare Solutions (hereinafter "Cardinal Innovations"), was the LME-MCO originally comprised of Union, Stanly, Cabarrus, Rowan, and Davidson Counties. On January 1, 2012, Five County LME was added to the PBH network and expanded the PBH LME-MCO to include Franklin, Vance, Granville, Warren, and Halifax counties. (Resp. [Ex.] 1, p. 5).
. . . .
14. [Petitioner] availed herself of the opportunity to submit an application and was informed by a letter dated December 6, 2013 that her credentials were approved and that, after a Health and Safety Review of her place of business, she would be sent a Provider Contract for her signature. (Resp. Ex. 5, p. 73).
15. The December 6, 2013 letter further stated that "Once [petitioner returned] the Contract to Cardinal Innovations for our CEO's signature, the Contract will become active." (Resp. Ex. 5, p. 73).
16. On January 10, 2014, Cardinal Innovations sent [petitioner] a letter stating: "Thank you for contracting with Cardinal Innovations Healthcare Solutions. Cardinal Innovations is dedicated to offering our consumers the best possible services. Enclosed, please find the Contract that has been entered into the Cardinal Innovations System and is fully executed and active. " (Emphasis in
original) (Resp. Ex. 5, p. 74).
17. The January 10, 2014 letter went on to describe the process for accessing the Cardinal Innovations electronic billing system and included a link to http://www.cardinalinnovations.org/tpa: "The link above is for Cardinal Innovations' Trading Partner Agreement (TPA). This form works in conjunction with the Cardinal Innovation[s] Provider Direct Electronic Billing System. It is required that providers submit a TPA in order to receive log in rights into the system." (Resp. Ex. 5, p. 74).
18. The fully executed and active contract between Cardinal Innovations and [petitioner] states that: "The term of this Contract shall begin on December 10 , 2013 and shall remain in effect until terminated as provided in the Contract and General Conditions for Provision of Services for Procurement Contract - Licensed Independent Practitioner. (Emphasis in original) (Resp. Ex. 5, p. 29).
19. Under Specific Contract Element #7 for Medicaid Waiver Services, the contract requires that the: "CONTRACTOR must biU CARDINAL INNOVATIONS for all Medicaid Waiver Services for Clients whose county of Medicaid as designated by the Department of Social Services is from a county within the CARDINAL INNOVATIONS catchment area." (Resp. Ex. 5, p. 33).
. . . .
32. [Petitioner] did not comply with the requirements of the Waiver, the contract with Cardinal Innovations, or the policies and bulletins issued by the Respondent in billing for outpatient behavioral health services through NC Tracks rather than through the appropriate LME-MCO.
33. The preponderance of the evidence showed that the Respondent did not act erroneously, fail to use proper procedure, and fail to act as required by law or rule when it denied payment for certain Medicaid claims billed
through NC Tracks instead of through the appropriate LME-MCO.
ALJ Overby then entered the following conclusions of law, in pertinent part:
12. Petitioner and Cardinal Innovations entered into a valid and enforceable contract pursuant to N.C. Gen. Stat. [§§] 122C-141 and 122C-142.
13. Both the Waiver and the contract required Petitioner to bill the appropriate LME-MCO, in this case Cardinal Innovations, for outpatient behavioral health services. Petitioner did not abide by these legal and contractual requirements when she billed for these services through NC Tracks.
14. Under N.C. Gen. Stat. § 150B-34, based upon the preponderance of the evidence, Respondent properly denied claims for outpatient behavioral health services when they were billed through NC Tracks rather than through Cardinal Innovations.
15. Petitioner did not meet her burden in showing that Respondent substantially prejudiced Petitioner's rights and acted erroneously, failed to use proper procedure, and failed to act as required by law or rule[.]
On 17 March 2015, petitioner filed a "Petition for Judicial Review of Case" in Granville County Superior Court seeking review of ALJ Overby's 12 March 2015 "Final Decision." On the same date, petitioner served the "Petition for Judicial Review of Case" on counsel for respondent, Rajeev K. Premakumar. Petitioner then filed an "Amendment to Certificate of Service" on 25 March 2015. The amendment was again addressed to counsel for respondent.
On 16 April 2015, respondent filed a "Motion to Dismiss and Response to Petition for Judicial Review" based on lack of personal jurisdiction through proper service and insufficiency of process.
On 14 July 2015, petitioner filed a "Second Amendment to Certificate of Service," which was addressed to "an unspecified agent of the Respondent at the N.C. Division of Medical Assistance[.]"
On 8 September 2015, a hearing was held on respondent's motion to dismiss. On 7 October 2015, the trial court entered an order granting respondent's motion to dismiss for the following reasons:
1. The Petitioner filed a Petition for Judicial Review on March 17, 2015, seeking to overturn a Final Decision of the Honorable Donald W. Overby, Administrative Law Judge, which found in favor of DHHS.
2. The Petitioner initially served the Petition for Judicial Review upon the Counsel of Record for DHHS, but not upon a person at DHHS as required by N.C.G.S. § 150B-46.
3. The Petitioner did not serve the Petition for Judicial Review upon DHHS until July 17, 2015.
4. The North Carolina Court of Appeals has held that a petitioner seeking judicial review of an agency decision must comply with N.C.G.S. § 150B-46 and serve his petition for judicial review upon all parties of record to the administrative proceedings within ten days of filing said petition with the trial court. Follum v. N.C. State Univ., 198 N.C. App. 389, 392, 679 S.E.2d 420, 423 (2009).
5. Follum held that in order to satisfy N.C.G.S § 150B-46, "at the very least, petitioner did have to serve said petition upon a 'person at the agency[,]' i.e., a person at the agency that was a party to the administrative proceedings." Id. at 394, 679 S.E.2d at 423 (citing Davis v. N.C. Dept. of Human Resources, 126 N.C. App. 383, 388, 485 S.E.2d 342, 345 (1997)).
6. In Follum, as in the present case, Petitioner served the counsel of record, who was "an employee of the Department of Justice and a member of the Attorney General's staff." Id. The Court held that the counsel of record "does not qualify as a 'person at the agency[,]" and service of the Petition for Judicial Review upon her does not comply with section 150B-46." Id. (citing Davis at 388, 485 S.E.2d at 345).
7. Pursuant to N.C.G.S. § 150B-46, and in accordance with the holding in Follum, the Petitioner had until March 27, 2015 to serve DHHS; Petitioner did not serve DHHS until July 17, 2015 or 112 days beyond the statutory deadline.
8. Petitioner's service of her Petition for Judicial Review upon Respondent DHHS on July 17, 2015 did not comply with N.C.G.S. § 150B-46 as it was served well outside of the ten-day window mandated by the statute.
On 12 October 2015, petitioner entered notice of appeal.
II. Discussion
The sole issue on appeal is whether the trial court erred by granting respondent's motion to dismiss petitioner's 17 March 2015 "Petition for Judicial Review of Case."
After careful review, we find that this Court's opinion in Follum v. NC State Univ., 198 N.C. App. 389, 679 S.E.2d 420 (2009), controls the issue before us. In Follum, the petitioner filed a "Petition for Contested Case Hearing" in the OAH asserting violations of the State Personnel Act on 26 November 2007. Id. at 390, 679 S.E.2d at 421. The respondent filed a motion to dismiss on 19 December 2007 based on lack of personal jurisdiction, lack of subject matter jurisdiction, and failure to state a claim. Id. at 391, 679 S.E.2d at 421. An ALJ entered a final decision on 26 February 2008, dismissing the petitioner's "Petition for Contested Case Hearing" with prejudice on the grounds set forth in the respondent's motion to dismiss. Id. On 11 March 2008, the petitioner filed a petition for judicial review in Wake County Superior Court, seeking review of the ALJ's final decision. On that same date, the petitioner served the petition for judicial review and a civil summons on the respondent's attorney of record. The petitioner did not serve the respondent's process agent nor any other individual employed by the respondent. Id. On 1 April 2008, the respondent filed a motion to dismiss the petition for judicial review for insufficiency of process pursuant to N.C. Gen. Stat. § 1A-1, Rule 12(b)(4) (2007), "asserting that [the] petitioner had failed to properly serve the Petition for Judicial Review." Id. On 2 April 2008, the petitioner served the petition for judicial review, the civil summons, and a "General Civil Action Cover Sheet" on the respondent's process agent. Id. at 391, 679 S.E.2d at 421-22. Following a hearing, the trial court held that N.C. Gen. Stat. § 150B-46 "controlled the issue of what constitutes proper service of a petition for judicial review of a final administrative/agency decision" and that pursuant to N.C. Gen. Stat. § 150B-46, the respondent's attorney of record "was not an individual who could properly receive service" and that the 2 April 2008 service upon the respondent's process agent was untimely. Id. at 391-92, 679 S.E.2d at 422. The petitioner appealed to our Court and our Court affirmed the trial court's holding, dismissing the petitioner's petition for judicial review:
In sum, we hold that [the] petitioner's service of his Petition for Judicial Review upon [the respondent's counsel of record] on 11 March 2008 did not comply with the mandates of section 150B-46 because [the respondent's counsel of record] is not a party of record to the administrative proceedings, and that his 2 April 2008 service of said petition upon [the respondent's process agent] did not comply with section 150B-46 as it was served outside of the ten-day window mandated by the statute.Id. at 395, 679 S.E.2d at 424.
N.C. Gen. Stat. § 150B-46, which deals with the service of a petition for judicial review of an agency decision provides, in pertinent part that "[w]ithin 10 days after the petition is filed with the court, the party seeking the review shall serve copies of the petition by personal service or by certified mail upon all who were parties of record to the administrative proceedings." N.C. Gen. Stat. § 150B-46 (2015).
In the case before us, petitioner filed the "Petition for Judicial Review of Case" on 17 March 2015. On the same date, the certificate of service, filed with this petition, was addressed to respondent's counsel of record. Petitioner then filed an "Amendment to Certificate of Service" on 25 March 2015 which was also addressed to respondent's counsel of record. It was not until 14 July 2015, well beyond the ten-day window mandated by N.C. Gen. Stat. § 150B-46 that petitioner filed a "Second Amendment to Certificate of Service" addressed to an agent of respondent, a party of record to the administrative proceedings. In line with our holding in Follum, because petitioner's service of his "Petition for Judicial Review of Case" did not follow the mandates of N.C. Gen. Stat. § 150B-46, we affirm the order of the trial court, granting respondent's motion to dismiss petitioner's "Petition for Judicial Review of Case."
III. Conclusion
The 7 October 2015 order of the trial court, granting respondent's motion to dismiss petitioner's "Petition for Judicial Review" is affirmed.
AFFIRMED.
Judges ELMORE and INMAN concur.
Report per Rule 30(e).