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
LOVING CARE, INC. APPELLEE
FROM FRANKLIN CIRCUIT COURT HONORABLE THOMAS D. WINGATE,
JUDGE ACTION NO. 17-CI-00240.
FOR APPELLANT: Matthew H. Kleinert Frankfort, Kentucky.
FOR APPELLEE: No brief filed.
BEFORE: COMBS, NICKELL AND K. THOMPSON, JUDGES.
THOMPSON, K., JUDGE.
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.
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.
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.
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.
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.
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
(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