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Athol Memorial Hospital v. Commissioner of the Division of Medical Assistance8/6/2002
unnecessary judicial intervention and the unhampered exercise of agency expertise on a well-developed factual record of its own making, do not apply. American Fed'n of Gov't Employees v. Acree, 475 F.2d 1289, 1292 (D.C. Cir. 1973). In the present circumstances, judicial intervention was inevitable because the board was not empowered to provide the relief (reimbursement at the outpatient rate), and additional agency expertise was irrelevant with respect to claims that it had already reviewed and concluded were for appropriate medical treatment rendered in the wrong setting.
Claims that would have been futile to pursue through the administrative appeals process would not, in my view, be barred by G.áL. c.á118E, §á38. Sectioná38 empowers the division to establish procedures for the appeal from denials of provider claims, and to set deadlines for the filing of such appeals. It also provides that " he provider's right to payment under this chapter shall be extinguished if the provider fails to file an appeal within the time prescribed by the division." I would interpret §á38 as extinguishing only claims to payment that could have been obtained through the appeals process that the division, by regulation, provided, and not claims for payment which could not have been obtained by the very terms of the division's regulations.
Claims for payment at the outpatient rate for the services at issue here only became viable when this court decided in Mass. Eyeá& Ear that the division's medical necessity regulations violated Federal Medicaid requirements, and that the division could not refuse (under those regulations) to pay anything for services that were medically appropriate but performed in the wrong setting. While the division is free, as we noted in Mass. Eye & Ear, supra at 817, to promulgate new regulations that deny all reimbursement to providers who provide treatment in the wrong setting, those rules must be clear and provide substantive criteria which can be understood and applied by providers charged with making good faith judgments about treatment requirements. Such regulations did not exist at the time these claims were denied.
Consequently, I would have allowed the case to proceed, as limited to claims for payment at the outpatient rate, had plaintiffs sought this relief. They did not.
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