If you are reading this, you are probably an owner of a PCA agency who now realizes that DHS is serious about extracting a large overpayment from you. In part 1, I explained what this means for you and your agency. Below, I address what you can do about it.
An Appeal vs. “the Right to Provide Evidence.”
The key information you will need to know about how to respond should be on the second or third page of the notice of overpayment.
Under the caption “Appeal Rights,” DHS tells you that you can challenge the overpayment and stipulated provider agreement in two ways: (1) appeal to DHS in writing—which must be received by DHS no later than 30 days after the date that DHS mailed the notice to you;[1] and (2) “provide evidence to DHS disputing DHS’ determination.”[2]
Anything You Say Can be Used Against You? Yes!
As I tell anyone who will listen, I’ve represented both DHS (at the Attorney General’s Office) and PCA agencies (here at Hellmuth & Johnson), and my takeaway is the same: in response to a notice, PCA agencies rarely get in trouble for what they don’t say; but they often regret what they do say. Everyone knows the part of the Miranda Warning we hear on cop shows: “…anything you say can be used against you in a court of law.” Well, it’s true here too.
I can’t count how many times I’ve seen a PCA agency provide information, or an explanation, or throw itself at the mercy of DHS…and it sinks their case. As I briefly explain in the next section (and explain in greater detail in part 3 of this article), what you say to challenge the overpayment is often treated as a confession—of guilt.
Fraud, Theft, Abuse? Is DHS Saying We Are Violating Criminal Laws?
So you’ve read the notice, you’ve reviewed the stipulated provider agreement, and now you’re looking at the attachment describing the bases for the overpayment. I bet you’re thinking: “I have a reasonable explanation for this…yes, we made some mistakes, but surely they don’t expect me to pay them six figures based on a mistake?” You think that you should start with a mea culpa, explain what went wrong, maybe even send DHS “corrected” provider records. Not so fast.
DHS is charged with the authority to identify and investigate “fraud, theft, abuse, or error.”[3] “Abuse” includes “a pattern of practices that are inconsistent with sound fiscal, business, or health service practices…”[4] And DHS will seek an overpayment from you for errors.[5] Here are just some of the ways that DHS will use your statements to both reject your response and make the overpayment appeal-proof:
- An admission of minor timesheet mistakes. This means you “submitt[ed] repeated claims, or cause[ed] claims to be submitted, from which required information [was] missing or incorrect;”[6]
- An admission of missing components in care plans. This means you “fail[ed] to develop and maintain health service records as required;”[7] and
- An admission that you sent the wrong records when DHS requested them, or failed to send records to DHS when requested. This means you “fail[ed] to disclose or make available to [DHS] the recipient’s health service records…as required.”[8]
Even worse, if you respond to the notice by providing DHS with corrected health-service records, they reply with a too-little-too-late rejection, and suggest you are trying to fraudulently alter the records.
If you think I’m trying to persuade you not to take a self-help approach to responding to the overpayment notice, you’re right. And if you think I’m arguing that admitting fault and then trying to get DHS to see reason is a fool’s errand even if you have a fantastic attorney, you’re mostly right. That said, I have one notable exception.
Building a Record of Due-Process Denial.
No matter what DHS says, there is one duty it cannot shirk: providing you with due process. At its core, due process means “the conduct of legal proceedings according to established rules and principles for the protection and enforcement of private rights…”[9] During the overpayment process, DHS must “comp[ly] with all procedural requirements of rule and law,”[10] and “assist [PCA agencies and individual] in complying with statutory and regulatory requirements.”[11] So if DHS failed to provide you with due process during its overpayment investigation (and you could have offered a defense if it had provided you due process) your response to the overpayment would be a good time to make this argument.
Here are a few examples of due-process deprivations that are probably worth highlighting in your response:
- DHS’ records request to you provides only five business days to respond;
- Records request to you is voluminous, ambiguously written, and requires that you fax the records to DHS; and
- DHS loses the records you sent them, or at least cannot prove that it has them.
Even so, the most your response will likely do is provide a better record for your administrative appeal.
Final Thoughts
Make no mistake, DHS will not give you the benefit of the doubt. And DHS takes little to no account of human error in its overpayment calculations. Please contact my assistant Tiffany Horne at (952) 746-2150 or thorne@hjlawfirm.com if you would like to discuss any issues surrounding overpayments and other aspects of the MHCP.
Stay tuned for part 3 in this series, which addresses how to challenge PCA overpayments in an administrative hearing.
[1] Minn. Stat. § 256B.064, subd. 2(a). You must follow these statutory instructions, or your appeal will be denied as untimely. I cover these administrative deadlines in more detail in Administrative Appeal Deadlines: A Trap for Unwary Minnesota Business Owners and Licensees. [2] Providing evidence disputing DHS’ determination is not the same as a written appeal, and the notice typically contains this warning: “This informal process does not replace an appeal and does not change the timeline for sending an appeal request.” [3] Minn. R. 9505.0180; .2160, subp. 1; .2200, subp. 1. [4] Minn. R. 9505.2165, subp. 2A(1). [5] See Minn. Stat. § 256B.064, subds. 1a(a)(1), 1c(a); Minn. R. 9505.0465, .2215, subp. 1A. [6] See Minn. R. 9505.2165, subp. 2A(1). [7] Id. at subp. 2A(7). [8] Id. at subp. 2A(9). [9] Black’s Law Dictionary, due process, 516 (7th ed. 1999). [10] In the Matter of the Sirs Appeal By Comfort Keepers, 2021 WL 4268366, at *11 (Sept. 9, 2021). [11] Sleepy Eye Care Ctr. v. Comm’r. Human Serv., 572 N.W.2d 766, 770 (Minn. Ct. App. 1998) (reversing administrative-law judge’s affirmance of DHS’ disallowance of reimbursements under the MHCP when DHS did not assist provider in complying with administrative requirements).
