Most of you are aware that the Minnesota Department of Human Services (DHS) filed a notice of their intent to amend the rules regarding random sample extrapolation in monetary recovery (Minnesota Rules, Part 9505.2220) late last year. I wrote about the proposed changes in this very blog, and asked you to join me in requesting a public hearing. Twenty-five valid requests were required in order for a public hearing to proceed, and you all helped reach that threshold – and then some! DHS received 147 total requests, and I personally know at least 25 of them came from ARRM members. Great job!
Well, the hearing was held as scheduled on Thursday, January 28 before Administrative Law Judge Jessica Palmer-Denig. ARRM engaged our friend Sam Orbovich, an attorney with Fredrickson and Byron, to prepare a written response and testify on our behalf. The hearing was held virtually, as is the norm these days, and there were 70 total participants during the course of the nearly 2-hour hearing. I counted at least 22 ARRM members and staff on the call.
Sam was the first to testify and prepared a very detailed and thorough analysis of the concerns we have with the proposed changes. He was able to draw on legal precedent and case law to support his arguments, not to mention several cases where he has represented providers of long-term services and supports and successfully fought large payment recoveries. Some of the key arguments raised by Sam were:
- DHS lacks authority to use random sample extrapolations, because it was never granted by the Legislature
- The proposed changes grant unreasonable subjective authority to DHS that would result in less reliability and validity in calculating monetary recoveries
- An existing requirement to notify providers of the sampling methodology BEFORE samples are drawn would be removed, which would make the process less transparent and appeals more difficult for providers
- An existing requirement to adhere to rigorous statistical methods would be loosened, potentially giving DHS and its auditors great latitude in sample extrapolation
- The proposed changes would result in more ambiguity in the payment recovery process, which would lead to more, and more expensive, appeals
There were a few other testifiers who spoke at the hearing, all in opposition to the proposed changes, as well as over 80 written comments submitted during the initial comment period that closed on December 31.
So what comes next? Following the hearing, a new period for public comment will be opened on the DHS rulemaking page (it is not open as of this writing), and comments will be accepted until 4:30 pm on Wednesday, February 17, 2021. Judge Palmer-Denig will then take all the testimony, comments and legal reasoning into consideration in reaching a verdict at some time in the future.
Please feel free to contact me with any questions.
-- Ken Bence, Director of Research, Analysis and Policy