Frazier v. California Dept. of Health Services

Filed 6/18/07 Frazier v. California Dept. of Health Services CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

APPEAL from a judgment of the Superior Court of Los Angeles County, David P. Yaffe, Judge. Affirmed.

Law Offices of Greer & Associates and C. Keith Greer for Petitioner and Appellant.

Edmund G. Brown, Jr., Attorney General, Thomas R. Yanger, Senior Assistant Attorney General, Richard T. Waldow, Supervising Deputy Attorney General, Janet E. Burns, Deputy Attorney General, for Respondent and Respondent.

INTRODUCTION

Petitioner and appellant Michael J. Frazier, D.P.M, (Dr. Frazier) appeals from the denial of a petition for writ of mandate that sought to overturn respondent California Department of Health Services (Department) determination that he received an overpayment for orthopedic shoes he dispensed to Medi-Cal beneficiaries. Dr. Frazier, a podiatrist, contends that the statutory requirement that such shoes be attached to a prosthesis or brace before Medi-Cal will pay for them does not apply to podiatrists, and the Department did not meet its burden of proving that the shoes were not attached to a prosthesis or brace after he dispensed them. We affirm.

BACKGROUND

The State Controllers Office, on behalf of the Department, reviewed Dr. Fraziers billings for services rendered to Medi-Cal beneficiaries for the period of August 3, 2000, through February 16, 2001. On December 31, 2002, the Department sent Dr. Frazier a letter stating that he had received a Medi-Cal overpayment in the amount of $117,599, and that the Department demanded recovery of that amount. On April 3, 2003, Dr. Frazier filed a Statement of Disputed Issues with the Departments Office of Administrative Hearings and Appeals challenging the Departments recovery demand. In lieu of a hearing, the parties agreed to submit the matter to an administrative law judge from the Department upon stipulations and written briefs. For the hearing, the parties stipulated:

1. All testimony of Cynthia Smith, D.P.M. given in the matter of Gregory Tilley, Appeal No. SR3-0203-393-DN, relating to the criteria for reimbursement of filling prescriptions for orthopedic shoes is deemed incorporated into the record of these proceedings.

2. [Dr. Frazier] filled prescriptions for orthopedic shoes that were written by other doctors who were Medi-Cal providers. [Dr. Frazier] did not attach any orthosis or brace to the shoes, and does not know what, if anything, was added to the shoes after [he] dispensed them.

On June 24, 2004, the administrative law judge issued a Proposed Decision denying Dr. Fraziers appeal of the Departments demand for recovery of the overpayment. On July 8, 2004, the Departments Director adopted the Proposed Decision. On December 17, 2004, Dr. Frazier filed a petition for writ of mandate seeking to overturn the Departments demand for reimbursement. The trial court denied the petition for writ of mandate and entered judgment for the Department.

DISCUSSION

I. Standard of Review

On appeal from the denial of a petition for writ of mandate concerning an administrative agencys decision, we review the agencys findings for substantial evidence. (Intercommunity Medical Center v. Belsh (1995) 32 Cal.App.4th 1708, 1711.) Where no challenge to the factual findings is made, we need only determine whether the Departments ruling was so arbitrary and capricious as to amount to an abuse of discretion. [Citation.] (Ibid.)

In determining the proper interpretation of a statute and the validity of an administrative regulation, the administrative agencys construction is entitled to great weight, and if there appears to be a reasonable basis for it, a court will not substitute its judgment for that of the administrative body. [Citations.] . . . [A]n administrative ruling comes before the court with a presumption of correctness and regularity, which places the burden of demonstrating invalidity upon the assailant[ ]. [Citations.] [Citations.] (Family Planning Associates Medical Group, Inc. v. Belsh (1998) 62 Cal.App.4th 999, 1004.)
The interpretation of a regulation, like the interpretation of a statute, is, of course, a question of law [citations], and while an administrative agencys interpretation of its own regulation obviously deserves great weight [citations], the ultimate resolution of such legal questions rests with the courts. [Citations.] (Carmona v. Division of Industrial Safety (1975) 13 Cal.3d 303, 310.) However, we generally will not depart from the agencys interpretation unless it is clearly erroneous or unauthorized. [Citation.] (Physician & Surgeons Laboratories, Inc. v. Department of Health Services (1992) 6 Cal.App.4th 968, 986-987.)

II. The Department Did Not Abuse Its Discretion in Determining That It

Overpaid Dr. Frazier for Orthopedic Shoes He Dispensed

Dr. Frazier contends that he did not receive an overpayment for the orthopedic shoes he dispensed because California Code of Regulations, title 22, section 51315, subdivision (e) (section 51315(e)) grants broad authority to podiatrists to furnish and bill for orthotics, with no limitations. The Department did not abuse its discretion in determining that it overpaid Dr. Frazier for orthopedic shoes he dispensed.

Section 51315(e), provides, in pertinent part, that [t]he only provider types authorized to furnish and bill for prosthetic and orthotic appliances are orthotists . . . , prosthetists . . . , physicians . . . , dentists . . . , and podiatrists . . . acting within the scope of their practice. That section describes who may furnish and bill for prosthetic and orthotic appliances, not what prosthetic and orthotic appliances may be furnished and billed for.

Welfare and Institutions Code section 14132, subdivision (k) (section 14132(k)) lists orthopedic shoes as a scheduled benefit and places limits on the orthopedic shoes for which payment can be received. Section 14132(k) provides, in pertinent part, Orthopedic and conventional shoes are covered when provided by a prosthetic and orthotic supplier on the prescription of a physician and when at least one of the shoes will be attached to a prosthesis or brace, subject to utilization controls. The administrative law judge denied Dr. Fraziers appeal, finding that [t]here is no evidence in this matter that any braces or orthesis were ever permanently attached to any of the shoe[s] dispensed.[1]

The administrative law judge did not abuse his discretion. In dispensing orthopedic shoes, Dr. Frazier was a supplier within the meaning of section 14132(k). As such, he was entitled to payment for the orthopedic shoes he dispensed only insofar as one of the shoes was attached to a prosthesis or brace. Dr. Frazier contends that the term supplier under section 14132(k) must be different from the term provider types under section 51315(e) and cannot include podiatrists because such an interpretation would void the authority to prescribe, provide, and bill for orthopedic shoes granted to podiatrists under section 51315(e). A plain reading of section 14132(k) does not void podiatrists authority under section 51315(e). Instead, the statute simply limits payments to suppliers of orthopedic shoeswhether podiatrists or other provider typesto those shoes at least one of which is attached to a prosthesis or brace.

Dr. Frazier contends that even if podiatrists are considered suppliers and section 14132(k) applies to them, he did not dispense the shoes at issue in this case based upon a prescription from a physician and, accordingly, section 14132(k) does not apply to him in this case. According to Dr. Frazier, the parties agreed to submit one sample prescription in the trial court that was representative of all the prescriptions at issue. Because that prescription was written by a doctor of podiatric medicine and not a physician, Dr. Frazier argues, section 14132(k) does not apply to him.

The parties did not agree that the one prescription lodged in the trial court was representative of all the prescriptions at issue. Instead, the parties stipulated that the administrative record, Dr. Smiths testimony in the Tilley matter, and two pages of an exhibit that included the prescription encompass the entire record necessary for these proceedings. One of the requirements for coverage under section 14132(k) is that orthopedic shoes must be provided on the prescription of a physician. To the extent that Dr. Frazier dispensed shoes without a physicians prescription, he failed to meet the coverage requirements of section 14132(k). This fact is another justification for the Departments recovery of the claimed overpayment.

III. The Department Met Its Burden of Proof

Dr. Frazier contends that the Department did not meet its burden of proving that none of the orthopedic shoes he dispensed was ever attached to a prosthesis or brace. Dr. Frazier does not claim that he is entitled to payment because he met all the requirements for paymenthe does not claim that he attached the orthopedic shoes to anything that would entitle him to payment and freely admits that he does not know if a prosthesis or brace was attached to the shoes after he dispensed them. Instead, Dr. Frazier claims that the shoes could have been attached to a prosthesis or brace after he dispensed them and that the Department could have presented evidence from the prescribing doctors on this issue. Failing to have presented such evidence, Dr. Frazier asserts, the Department did not meet its burden of proof. The Department met its burden of proof.

At an administrative hearing, the Department has the burden of proof to justify an audit exception. (Cal. Code Regs., tit. 22, 51037, subd. (i)[2]; RinaldiConvalescentHospital v. Department of Health Services (1998) 62 Cal.App.4th 373, 377.) It met its burden in this case through the parties stipulation. In that stipulation, Dr. Frazier admitted that he did not attach an orthosis[3]or brace to the shoes and that he was unable to claim that any other person attached such a device to the shoes after he dispensed them. As discussed above, orthopedic shoes are a covered benefit only if at least one of the shoes will be attached to a prosthesis or brace. (Welf. & Inst. Code, 14132, subd. (k); Cal. Code Regs., tit. 22, 51315, subd. (d).) Because the Department showed that Dr. Frazier had not presented a claim for which he was entitled to paymentby claiming that he attached at least one of the orthopedic shoes to a prosthesis or brace or that after he dispensed the shoes they were so attachedit met its burden of proof.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

MOSK, J.

We concur:

TURNER, P. J.

ARMSTRONG, J.

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[1] California Code of Regulations, title 22, section 51315, subdivision (d) provides, in pertinent part:

Stock conventional and stock orthopedic shoes are covered when provided by a prosthetist or orthotist on the prescription of a physician or podiatrist and when at least one of the shoes will be attached to a prosthesis or brace.

[2] California Code of Regulations, title 22, section 51037, subdivision (i) provides: The Department shall present its audit findings and evidence first at the hearing. The Department has the burden of proof of demonstrating, by a preponderance of the evidence, that the audit findings were correctly made. Once the Department has presented such a prima facie case, the burden of proof shifts to the provider to demonstrate, by a preponderance of the evidence, that the providers position regarding disputed issues is correct.

[3] The parties stipulation concerns the failure of Dr. Frazier to attach an orthosis or brace to the shoes and not a prosthesis or brace as referred to in section 14132(k) or California Code of Regulations, title 22, section 51315, subdivision (d). Dr. Frazier did not contend below, however, and does not contend on appeal that he attached a prosthesis to any of the shoes at issue. There is no indication that the parties treated an orthosis differently from a prosthesis or that Dr. Frazier ever made a claim for shoes attached to a prosthesis.