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Commonwealth v. Loving Care, Inc.

Court of Appeals of Kentucky

November 15, 2019

COMMONWEALTH OF KENTUCKY, CABINET FOR HEALTH AND FAMILY SERVICES; AND VICKIE YATES BROWN GLISSON, IN HER OFFICIAL CAPACITY AS SECRETARY OF COMMONWEALTH OF KENTUCKY, CABINET FOR HEALTH AND FAMILY SERVICES APPELLANTS
v.
LOVING CARE, INC. APPELLEE

          APPEAL FROM FRANKLIN CIRCUIT COURT HONORABLE THOMAS D. WINGATE, JUDGE ACTION NO. 17-CI-00240.

          BRIEF FOR APPELLANT: Matthew H. Kleinert Frankfort, Kentucky.

          BRIEF FOR APPELLEE: No brief filed.

          BEFORE: COMBS, NICKELL AND K. THOMPSON, JUDGES.

          OPINION

          THOMPSON, K., JUDGE.

         The Commonwealth of Kentucky, Cabinet for Health and Family Services, and Vickie Yates Brown Glisson, in her official capacity as Secretary of Commonwealth of Kentucky, Cabinet for Health and Family Services (collectively the Cabinet) appeal from an order of the Franklin Circuit Court remanding this case to the Cabinet for an administrative hearing to determine whether the Cabinet is entitled to reimbursement of Medicaid payments paid to Loving Care, Inc. We conclude the Franklin Circuit Court properly determined that Loving Care preserved its arguments in opposition to the Cabinet's claim for reimbursement and affirm.

         We begin by noting that Loving Care has not filed an appellee brief. If an appellee brief has not been filed within the time allowed, the court may:

(i) accept the appellant's statement of the facts and issues as correct; (ii) reverse the judgment if appellant's brief reasonably appears to sustain such action; or (iii) regard the appellee's failure as a confession of error and reverse the judgment without considering the merits of the case.

         Kentucky Rules of Civil Procedure (CR) 76.12 (8)(c). "The decision as to how to proceed in imposing such penalties is a matter committed to our discretion." Roberts v. Bucci, 218 S.W.3d 395, 396 (Ky.App. 2007). Because the issues and facts are straightforward, we choose not to penalize Loving Care for its failure to file a brief.

         The Cabinet is the executive branch administrative agency charged with the administration of Kentucky's Medical Assistance Program (the Medicaid program). Kentucky Revised Statutes (KRS) 194A.010 and KRS 12.020. Under federal law, all states that participate in the Medicaid program must have a federally approved medical assistance plan (the Plan). Commonwealth, Cabinet for Health and Family Services v. Owensboro Medical Health System, Inc., 500 S.W.3d 225, 226 (Ky.App. 2016). The Cabinet's Plan outlines how Medicaid services will be reimbursed in Kentucky and has been approved by the Federal Center for Medicare and Medicaid Services. Kentucky's receipt of federal funding for its Medicaid program is contingent upon following the terms and conditions of the Plan. Id. at 227.

         Loving Care is a Kentucky Medicaid provider as defined in KRS 205.8451(7) and enrolled with the Department for Medicaid Services as a Supports for Community Living (SCL) Medicaid waiver provider. In the present matter, Loving Care agreed to provide Medicaid waiver services to a Medicaid member, "T.W.," as part of the Money Follows the Person Program, (MFP), a program that provides enhanced federal medical assistance to individuals with disabilities who formerly resided in an institutional environment.

         A Medicaid provider's payment for services rendered to a Medicaid member is dependent on compliance with applicable regulations including maintaining appropriate documentation. 907 Kentucky Administrative Regulations (KAR) 1:672 Section 2(6) provides that "[b]y enrolling in the Medicaid Program, a provider, the provider's officers, directors, agents, employees, and subcontractors agree to: (a) Maintain the documentation for claims as required by Section 4 of this administrative regulation[.]" Section 4(1) of 907 KAR 1:672 provides that the provider shall document:

(a) Care, services, benefits, or supplies provided to an eligible recipient;
(b) The recipient's medical record or other provider file, as appropriate, which shall demonstrate that the care, services, benefits, or supplies for which the provider ...

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