Bridgeport Dental, LLC v. Commissioner of Social Services ( 2016 )

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BRIDGEPORT DENTAL, LLC v. COMMISSIONER
OF SOCIAL SERVICES
(AC 37328)
Beach, Sheldon and Harper, Js.
Argued December 7, 2015—officially released May 24, 2016
(Appeal from Superior Court, judicial district of New
Britain, Schuman, J.)
Jonathan J. Klein, for the appellant (plaintiff).
Robert B. Teitelman, assistant attorney general, with
whom, on the brief, was George Jepsen, attorney gen-
eral, for the appellee (defendant).
Jeffrey R. Babbin filed a brief for the Connecticut
State Dental Association et al. as amici curiae.
Opinion
BEACH, J. The Commissioner of Social Services is
authorized to pay providers of dental services for ser-
vices rendered to beneficiaries of various assistance
programs; the payments are subject to audits. See Gen-
eral Statutes § 17b-99 (d). This case involves the process
by which a provider may contest the results of the audit,
and the scope of review by the Superior Court.
The plaintiff, Bridgeport Dental, LLC, appeals from
the trial court’s dismissal of its appeal from the final
decision of the defendant, the Commissioner of Social
Services. The defendant’s final decision substantially
upheld the conclusions of an audit that had determined
that the plaintiff, a provider of dental services, had
received $106,851 in overpayments from the defendant.
On appeal, the plaintiff claims that the court (1) improp-
erly found that the record contained substantial evi-
dence to support the defendant’s finding of
overpayments, (2) committed plain error in determining
that the plaintiff’s failure to include certain claims in
its statement of aggrievement at the administrative level
barred the plaintiff from raising the claims at trial, and
(3) erred in determining that ‘‘the manner in which
extrapolation projection methodology was applied by
the [auditor] to calculate the amount of the overpay-
ment . . . was supported by substantial evidence
. . . .’’1 We affirm the judgment of the trial court.
In order to place the claims in context, it is useful to
summarize the statutory process. Pursuant to General
Statutes (Rev. to 2013) § 17b-99 (d) (1),2 the defendant
or his delegate, with some exceptions not relevant here,
must notify the provider prior to conducting an audit.
Findings may be based on extrapolation from samples
if, inter alia, the value of claims subject to the audit
exceeds $150,000 on an annual basis. General Statutes
(Rev. to 2013) § 17b-99 (d) (3). If the auditor discovers
discrepancies and notifies the provider, the provider is
allowed thirty days in which to provide documentation
to rebut the discrepancies. General Statutes (Rev. to
2013) § 17b-99 (d) (4). The auditor is to issue a prelimi-
nary written report and provide a copy of the report to
the provider not later than sixty days after the conclu-
sion of the audit. General Statutes (Rev. to 2013) § 17b-
99 (d) (5). An ‘‘exit conference’’ shall then be held.3
General Statutes (Rev. to 2013) § 17b-99 (d) (6). Follow-
ing the exit conference, the defendant shall produce a
final written report, which, with some exceptions, is to
be given to the provider within sixty days of the exit
conference. General Statutes (Rev. to 2013) § 17b-99
(d) (7).
Any provider aggrieved by a decision in the final
written report may request a review ‘‘of all items of
aggrievement’’ before an impartial designee of the
defendant (review official). The request for review shall
contain a ‘‘detailed written description of each specific
item of aggrievement . . . .’’ General Statutes (Rev. to
2013) § 17b-99 (d) (8). The review official is then to
issue a ‘‘final decision.’’ General Statutes (Rev. to 2013)
§ 17b-99 (d) (8). Pursuant to § 17b-99 (d) (9) the pro-
vider may appeal from the final decision to the Superior
Court ‘‘in accordance with the provisions of Chapter
54,’’ the Uniform Administrative Procedure Act (UAPA),
General Statutes § 4-166 et seq.4
Within this framework, the court recounted the fol-
lowing facts, which are relevant to our resolution of
the plaintiff’s claims. ‘‘The plaintiff is a dental practice
providing eligible patients services that the Department
of Social Services (department) paid for pursuant to the
Medicaid program.5 On March 12, 2013, the department
issued a final report on an audit it conducted. The report
concluded that, for the period from July 1, 2008 through
June 30, 2010, the plaintiff received $873,744 in Medic-
aid payments, of which $106,851 constituted overpay-
ments. The department proposed that it deduct the
$106,851 from future payments to the plaintiff. . . .6
‘‘[James Caserta, a dentist employed by the plaintiff,
submitted, on behalf of the plaintiff] a statement of
aggrievement seeking review of the audit. . . . No
hearing took place,7 but the record contains numerous
letters and e-mails that the plaintiff subsequently sent
to or received from state officials concerning the audit.
. . . During this time period, the [defendant] desig-
nated an attorney from [the department] to conduct a
review of the audit. On March 21, 2014, the review
official issued a nine page final decision with exhibits.
. . . In the . . . [‘Audit Review Final Decision’], the
review official noted that the department agreed to
approximately $1700 of additional payments to the
plaintiff. . . . In all other respects, the review official
concluded that he would order no changes to the final
audit.’’ (Citations omitted; footnotes added.)
The plaintiff appealed to the Superior Court from the
Audit Review Final Decision on May 5, 2014, pursuant
to § 17b-99 (d) (9).8 After oral argument was heard by
the court, it determined, in a written memorandum of
decision, that the review official’s conclusions were
supported by substantial evidence and that the plaintiff
had not established that the department acted unrea-
sonably, arbitrarily, illegally, or in abuse of its discre-
tion. The court declined to review two of the plaintiff’s
claims because it had not raised the claims in its state-
ment of aggrievement to the review official. This
appeal followed.
We agree with the parties that principles underlying
the substantial evidence standard inform our review.
General Statutes § 4-183 (j) provides in relevant part
that a reviewing court ‘‘shall affirm the decision of the
agency unless the court finds that substantial rights of
the person appealing have been prejudiced because
the administrative findings, inferences, conclusions, or
decisions are: (1) In violation of constitutional or statu-
tory provisions; (2) in excess of the statutory authority
of the agency; (3) made upon unlawful procedure; (4)
affected by other error of law; (5) clearly erroneous in
view of the reliable, probative, and substantial evidence
on the whole record; or (6) arbitrary or capricious or
characterized by abuse of discretion or clearly unwar-
ranted exercise of discretion . . . .’’
‘‘The substantial evidence rule9 imposes an important
limitation on the power of the courts to overturn a
decision of an administrative agency . . . and . . .
provide[s] a more restrictive standard of review than
standards embodying review of weight of the evidence
or clearly erroneous action. . . . [I]t is something less
than the weight of the evidence, and the possibility of
drawing two inconsistent conclusions from the evi-
dence does not prevent an administrative agency’s find-
ing from being supported by substantial evidence. . . .
[A]s to questions of law, [t]he court’s ultimate duty is
only to decide whether, in light of the evidence, the
[agency] has acted unreasonably, arbitrarily, illegally,
or in abuse of its discretion. . . . Conclusions of law
reached by the administrative agency must stand if the
court determines that they resulted from a correct appli-
cation of the law to the facts found and could reasonably
and logically follow from such facts.’’ (Footnote added;
internal quotation marks omitted.) Eagen v. Commis-
sion on Human Rights & Opportunities, 135 Conn.
App. 563, 572–73, 42 A.3d 478 (2012).
The substantial evidence standard requires that the
plaintiff ‘‘do more than simply show that another deci-
sion maker, such as the [Superior Court], might have
reached a different conclusion. Rather than asking the
reviewing court to retry the case de novo . . . the
plaintiff must establish that substantial evidence does
not exist in the record as a whole to support the agency’s
decision.’’ (Citation omitted.) Samperi v. Inland Wet-
lands Agency, 226 Conn. 579, 587–88, 628 A.2d 1286
(1993). With this limitation upon our review, we will
consider each of the plaintiff’s claims in turn.
I
The plaintiff first claims that the court improperly
found that the record contained substantial evidence
in support of the review official’s conclusions. The
plaintiff argues that the record, as presented to the
court, contained determinations of fact, but it did not
include evidence itself, such as treatment or billing
records. As such, the plaintiff reasons, the court had
no evidence to examine in the course of concluding
whether the substantial evidence rule was satisfied.
We disagree.
We begin by stressing the plaintiff’s burden when
appealing an agency decision to the Superior Court.
Our Supreme Court has stated that a plaintiff who chal-
lenges an agency decision has the ‘‘heavy burden of
demonstrating that the department’s factual conclusion
lacks substantial support on the whole record.’’ Office
of Consumer Counsel v. Dept. of Public Utility Control,
246 Conn. 18, 36–37, 716 A.2d 78 (1998); see New
England Cable Television Assn., Inc. v. Dept. of Public
Utility Control, 247 Conn. 95, 118, 717 A.2d 1276 (1998).
When the audit in this case occurred, § 17b-99 (d) (8),
the portion of the statute that governed the review
process for Medicaid audits, prescribed in relevant part
that ‘‘[a]ny provider aggrieved by a decision contained
in a final written report . . . may . . . request, in writ-
ing, a review on all items of aggrievement. Such request
shall contain a detailed written description of each spe-
cific item of aggrievement. . . .’’
In the statement of aggrievement, the plaintiff chal-
lenged four audit findings10 pertaining to (1) inadequate
documentation, (2) incorrect procedure codes, (3) the
enrollment status of performing providers, and (4) third
party coverage. The review official adjusted several dis-
allowances such that the plaintiff obtained some relief,
but ultimately concluded that the information provided
in the statement of aggrievement and other materials
submitted by the plaintiff did not require any significant
change to the final audit report. The Superior Court’s
review was limited to those issues included in the state-
ment of aggrievement, and to determining whether the
review official’s conclusions passed legal muster.
The first challenged audit finding—that there was
inadequate documentation to support certain Medicaid
claims in some of the samples which were randomly
picked for review—involved X-rays that the auditor had
concluded were either missing from patient records or
not of sufficient diagnostic quality to warrant reim-
bursement. In the statement of aggrievement, the plain-
tiff disagreed that the X-rays for the samples listed by
the auditor were missing or of poor quality; it insisted
that adequate X-rays had in fact been in the patient
charts. In a letter sent to the review official, in an effort
to counter the department’s positions, the plaintiff
included patient X-rays for ‘‘Sample 55.’’ In this same
letter, the plaintiff attributed the auditor’s conclusion
that certain X-rays were missing to the department’s
‘‘mismanagement and chaos.’’ The plaintiff also pro-
vided two one-page documents that confirmed that the
department had ‘‘picked up’’ X-rays from the plaintiff
during the audit, but the documents did not specify
which X-rays had been provided or whether the
included X-rays rebutted the auditor’s finding that some
X-rays were missing from sample charts.
The review official concluded that, with the excep-
tion of Sample 55, the samples that the plaintiff had
challenged in the statement of aggrievement did not
contain X-rays. The review official revised the adjust-
ment amount for Sample 55 because the plaintiff had
provided those X-rays in subsequent correspondence.
The review official also consulted with Steven Lepow-
sky, a dentist and Senior Associate Dean at the Univer-
sity of Connecticut Health Center School of Dental
Medicine, who concluded that one of the X-rays pro-
vided was not of diagnostic quality; as a result of Lepow-
sky’s conclusion, the review official upheld the
department’s disallowance for that particular sample.
The review official also considered the second item
listed in the statement of aggrievement in which the
plaintiff disputed disallowances resulting from the use
of incorrect procedure codes. According to sample
patient charts, hygienists had placed dentists’ initials
in the charts to indicate that a particular procedure
had been performed. Section 17b-262-526 (7) of the
Regulations of Connecticut State Agencies provides
that for each Medicaid eligible client, a Medicaid pro-
vider must maintain a record that contains ‘‘pertinent
treatment notes signed by the provider . . . .’’ When
submitting claims for payment for the procedures, the
plaintiff used procedure codes that indicated a dentist
had provided the services, yet the charts did not contain
the treatment notes signed by the dentist, as required
by § 17b-262-526 (7). In the statement of aggrievement,
the plaintiff did not claim that this conclusion was incor-
rect, but merely argued that a dentist had seen those
sample patients, and that the requirement that dentists
sign treatment notes is not ‘‘known by dentists,’’ nor
was it ‘‘promulgated by the American Dental Associa-
tion [or] the Connecticut State Dental Association.’’
The review official concluded that ‘‘to support [this]
billing code . . . a dentist is required to enter pertinent
treatment notes in the patient’s chart and is required
to sign the treatment notes.’’ Because the plaintiff did
not dispute the audit’s finding that the treatment notes
were not signed by a provider, the review official con-
cluded that no adjustment to those findings was war-
ranted.
The plaintiff challenged the audit’s finding that incor-
rect procedure codes had been used in samples where
periapical films had been taken on the same day as
bitewings, panoramic, or lateral jaw films. The review
official stated that, according to the Connecticut Medi-
cal Assistance Program provider manual, the depart-
ment does not reimburse providers for periapical films
taken on the same dates as the other, aforementioned
films. The plaintiff did not claim or provide evidence
to show that those films had not been taken on the
same day, but rather stressed that the additional X-
rays had been necessary. The review official upheld
this adjustment.
As to the third finding that the plaintiff challenged
regarding the auditor’s conclusion that a performing
provider was not enrolled properly with the depart-
ment, the review official determined that one of the
dentists within the practice should not have billed Med-
icaid for services that he had performed because, at
the time the claim was submitted, he had not been
enrolled as a Medicaid provider. Until he had received
notification that he had been enrolled as a Medicaid
provider, the claims that this dentist had filed were
ineligible for Medicaid reimbursement. A copy of the
letter notifying the dentist that he had been successfully
enrolled after provision of the services in issue was
included in the report to the plaintiff. The review official
declined to make any adjustment on this challenged
ground.
The fourth challenged finding—that the plaintiff had
failed to post private insurance payments when billing
Medicaid for services rendered—was, according to the
plaintiff, the result of confusion over how to handle
third party payees. The review official responded: ‘‘Con-
fusion regarding how to handle third party coverage
does not excuse non-compliance with the rules con-
cerning third party coverage. The auditor’s findings will
not be disturbed.’’
At the Superior Court hearing, the plaintiff did not
point to any part of the record to demonstrate that the
review official’s conclusions regarding the four items
listed in the statement of aggrievement were unsubstan-
tiated by the record that he had reviewed. On appeal
to this court, the plaintiff similarly does not argue spe-
cifically in what ways the contested findings were not
supported by substantial evidence but, rather, generally
posits that ‘‘the record contains no evidence on the
basis of which the trial court could reach a conclusion
that the defendant had satisfied the substantial evidence
rule.’’ It further argues that the record is ‘‘bereft of
evidence, direct or circumstantial’’ and that the Audit
Review Final Decision contains only inferences and
conclusions drawn by the review official, not actual
evidence. This argument misses the point: the plaintiff
had the opportunity to provide the documentation that,
it claimed, disproved the audit’s disallowances when
the plaintiff submitted its statement of aggrievement.
The statement of aggrievement contained assertions
that the findings were erroneous, but, with several
exceptions that resulted in adjustments, did not provide
any evidence of mistake committed by the department.
For example, the plaintiff wrote, ‘‘There are many refer-
ences to ‘no documentation’ as a justification for deny-
ing payment, and ALL the work performed was
disallowed based upon this erroneous assumption. In
NO instance was there ever ‘no documentation.’ ALL
work performed on EVERY patient was dated and
entered into the patient’s record.’’ Yet, the plaintiff pro-
vided X-rays only for Sample 55 and did not, at any
point in these proceedings, submit the X-rays that the
auditor had found to be missing. If, as the plaintiff
claims, its requests for payment which were disallowed
by the audit had indeed been adequately supported by
documentation, it had the opportunity to present the
documentation at several stages.
As to the other challenged findings—the use of incor-
rect procedure codes, an unenrolled provider, and the
failure to seek reimbursement from private insurance
companies—the plaintiff’s statement of aggrievement
contained no documentation showing that the auditor
had erred, and, rather, suggested that the plaintiff’s
dentists had been confused by the regulations and
requirements of participating in the Medicaid program.
Without evidence of mistake by the department, the
review official did not alter the results of the final
audit report.11
The plaintiff did not satisfy its burden of showing
that the review official’s decision—which was, in part,
based upon the lack of proof that certain procedures
were performed by an enrolled provider or performed
at all—was erroneous. Unlike the traditional review of
a contested case, here the basis of the administrative
action was the audit. The audit was derived from infor-
mation peculiarly within the plaintiff’s knowledge. At
several points the plaintiff had the opportunity to con-
test conclusions stated in the audit; to a limited degree,
it was successful. There was no obligation on the part
of the defendant to justify in the review process those
portions which were not contested. It, and the review
official, did have the obligation to consider the docu-
mentation submitted by the plaintiff fairly. We find noth-
ing in the record to suggest that the review official
acted arbitrarily or abused his discretion in his issuance
of the Audit Review Final Decision. The court properly
concluded that the review official’s conclusions were
not erroneous.
II
The plaintiff next claims that the court committed
plain error by declining to review two issues that the
plaintiff had not raised before the defendant in the
review process.12 We disagree.
It is well established that a court ‘‘will not set aside an
agency’s determination upon a ground not theretofore
fairly presented for its consideration . . . .’’ (Internal
quotation marks omitted.) Pet v. Dept. of Health Ser-
vices, 228 Conn. 651, 674, 638 A.2d 6 (1994). Neverthe-
less, ‘‘[t]he well-recognized limitations on judicial
review do not require courts to abstain entirely from
entertaining questions that might have been, but were
not, raised before the [agency]. Reviewing courts retain
considerable latitude, in ordinary legal proceedings, to
consider matters not raised in the trial court. . . . The
standard for review of administrative proceedings simi-
larly must allow for judicial scrutiny of claims such as
constitutional error . . . jurisdictional error . . . or
error in the construction of the administrative agency’s
authorizing statute.’’ (Internal quotation marks omit-
ted.) Ogden v. Zoning Board of Appeals, 157 Conn. App.
656, 665–66, 117 A.3d 986, cert. denied, 319 Conn. 927,
125 A.3d 202 (2015). Additionally, ‘‘the leniency tradi-
tionally afforded to inexperienced pro se parties may
justify belated consideration of claims not fully
explored in earlier proceedings.’’ Burnham v. Adminis-
trator, 184 Conn. 317, 322–23, 439 A.2d 1008 (1981).
The plain error doctrine ‘‘is an extraordinary remedy
used by appellate courts to rectify errors committed at
trial that, although unpreserved, are of such monumen-
tal proportion that they threaten to erode our system
of justice and work a serious and manifest injustice on
the aggrieved party. [T]he plain error doctrine . . . is
not . . . a rule of reviewability. It is a rule of reversibil-
ity. That is, it is a doctrine that this court invokes in
order to rectify a trial court ruling that, although either
not properly preserved or never raised at all in the trial
court, nonetheless requires reversal of the trial court’s
judgment, for reasons of policy. . . . In addition, the
plain error doctrine is reserved for truly extraordinary
situations [in which] the existence of the error is so
obvious that it affects the fairness and integrity of and
public confidence in the judicial proceedings. . . .
Plain error is a doctrine that should be invoked spar-
ingly.’’ Reville v. Reville, 312 Conn. 428, 467–68, 93 A.3d
1076 (2014).
We do not find plain error in the circumstances of
this case. In its appeal to the Superior Court, the plaintiff
claimed, for the first time, that (1) the financial audit
was improper because the department had not enacted
procedural regulations for audits despite a statutory
mandate to do so,13 and (2) some audit adjustments
should have been classified as clerical errors and disre-
garded pursuant to § 17b-99 (d) (2).14 The court con-
cluded that ‘‘[t]he plaintiff’s failure to raise this matter
before the department is particularly significant
because the absence of regulations is clearly something
that the department had the ability to rectify during
the pendency of the audit proceedings. Although the
department’s continued noncompliance with the 2010
statutory mandate to enact regulations concerning the
audit process is of significant concern to the court, the
court will not reverse the department’s decision on a
ground that the plaintiff never gave the department an
opportunity to address.’’ The court reached a similar
conclusion with respect to the claim regarding clerical
errors. The plaintiff did not show that the court’s deci-
sion not to review the two claims—on the basis of the
record and the arguments presented at the hearing—
was an extraordinary event amounting to plain error.
First, the plaintiff’s claim that the department failed
to enact regulations15 does not challenge the review
official’s findings. The purpose of the appeal to the trial
court was to seek judicial review of the review official’s
decision. Because the review official did not have an
opportunity to respond to this claim, the court correctly
decided not to review the review official’s conclusions
on this matter. There was no legislative directive not
to conduct audits until regulations were enacted, and
we have no way of knowing what regulations hypotheti-
cally may have been enacted.
Second, the plaintiff’s argument that it was plain error
for the court not to address its claim that certain finan-
cial disallowances were based on clerical errors, simi-
larly, does not challenge the review official’s findings.
In its brief, the plaintiff argues the substance of this
particular claim, but fails to persuade us that the court
committed plain error by declining to review an issue
that had not been raised to the review official. The
plaintiff adds that ‘‘[w]ith the glaring absence of any-
thing but conclusory statements in the record, and with
no testimonial or documentary evidence which can be
reviewed, the substantial evidence rule is not satisfied
. . . .’’ The review official did not examine the issue
of clerical errors in the plaintiff’s records, therefore,
the trial court did not, and indeed could not, find that
the review official’s conclusions were supported by sub-
stantial evidence as to this claim.16
III
The plaintiff claims that the court ‘‘erred in determin-
ing that the manner in which extrapolation projection
methodology was applied by the [auditor] to calculate
the amount of the overpayment assessed against the
plaintiff was supported by substantial evidence in the
record.’’ We disagree.
In the statement of aggrievement, the plaintiff chal-
lenged the auditor’s use of extrapolation methodology,
stating in relevant part: ‘‘To make matters worse, the
principles of extrapolation are being used during this
review process. The principles of extrapolation, while
a fairly valid mathematical concept in predicting trends
in certain situations, series of numbers, etc., is not appli-
cable to the actual rendering of care in a dental practice
as there are simply too many variables to consider.
Extrapolation works until it doesn’t work. . . . These
. . . principles of extrapolation that are being applied
in such a ruthless way to deny me the fruits of my labor
and impugning my integrity by utilizing irrational and
unfounded assumptions can be utilized to prove exactly
the opposite. . . . To attempt to apply the principles
of extrapolation to the rendering of patient care is to
go down a slippery slope.’’ The plaintiff also pointed
out specific examples17 of the ways in which the use
of extrapolation produced ‘‘ludicrous, absurd, and pat-
ently false’’ results. In a follow-up letter to the review
official, Caserta added: ‘‘My purpose here is not to
debate the legality of the use of extrapolation to recoup
public funds as [Public Acts 2005, No. 05-195] cited
above clearly authorizes it. On the contrary, it is to
solely point out the abuses of the [department] and the
role that it, the [department], is playing in defrauding
the dentists in Connecticut.’’
The Audit Review Final Decision concluded: ‘‘The
provider attacks the [d]epartment’s use of extrapolation
. . . . Although the Connecticut General Assembly has
limited the [d]epartment’s ability to use extrapolation
in audits, see Conn. Gen. Stat. § 17b-99 (d) (3), the
General Assembly has not excluded audits of dental
providers (or any other provider groups) from extrapo-
lation. I have considered the [plaintiff’s] other argu-
ments regarding the [d]epartment’s use of extrapolation
and find them to be without merit.’’
In its memorandum of decision, the court examined
the method of extrapolation described by the original
audit document.18 It found that the methodology
employed was ‘‘almost exactly the same method used
and approved by our Supreme Court in the Medicaid
context in Goldstar Medical Services, Inc. v. Dept. of
Social Services, 288 Conn. 790, 813–18, 955 A.2d 15
(2008).’’19 Consequently, the court concluded that the
plaintiff had not established that the department acted
unreasonably, arbitrarily, illegally, or in abuse of its dis-
cretion.
The challenge to the use of extrapolation presented
in the statement of aggrievement was legal, rather than
factual, in nature. At that stage of the proceedings, the
plaintiff had not questioned whether extrapolation was
properly applied in the specific circumstances of the
department’s audit but appeared to challenge the use
of extrapolation as a general principle. Although, in
its follow-up letter to the review official, the plaintiff
claimed that it did not dispute the legality of extrapola-
tion, it did claim that by alleging that the department
was ‘‘defrauding the dentists in Connecticut,’’ presum-
ably by using extrapolation in its audits. The question
before the court, then, was not whether the specific
mechanics of extrapolation were used properly in this
case, but whether the department was correct in its
decision to use the methodology of extrapolation at all.
‘‘[F]or conclusions of law, [t]he court’s ultimate duty
is only to decide whether, in light of the evidence, the
[agency] has acted unreasonably, arbitrarily, illegally,
or in abuse of its discretion. . . . [Thus] [c]onclusions
of law reached by the administrative agency must stand
if the court determines that they resulted from a correct
application of the law to the facts found and could
reasonably and logically follow from such facts. . . .
Cases that present pure questions of law, however,
invoke a broader standard of review than is . . .
involved in deciding whether, in light of the evidence,
the agency has acted unreasonably, arbitrarily, illegally
or in abuse of its discretion. . . . Furthermore, when
a state agency’s determination of a question of law has
not previously been subject to judicial scrutiny . . .
the agency is not entitled to special deference.’’ (Inter-
nal quotation marks omitted.) Commission on Human
Rights & Opportunities v. Echo Hose Ambulance, 156
Conn. App. 239, 245, 113 A.3d 463, cert. granted on
other grounds, 317 Conn. 911, 116 A.3d 309 (2015).
The use of extrapolation in general to determine over-
payment is authorized both by statute and by case law.
General Statutes (Rev. to 2013) § 17b-99 (d) (3) provides
in relevant part that a finding of overpayment to a Med-
icaid provider ‘‘shall not be based upon extrapolated
projections unless . . . (C) the value of the claims in
aggregate exceeds one hundred fifty thousand dollars
on an annual basis.’’ The plaintiff’s Medicaid claims in
this case amounted to $873,744 over two years,
exceeding the statutory minimum necessary for extrap-
olation to be appropriate. The auditor, then, was author-
ized by the legislature to use extrapolation in its audit.
Our Supreme Court addressed the use of extrapola-
tion in Goldstar Medical Services, Inc. v. Dept. of Social
Services, supra, 288 Conn. 813–19. In that case, the
department used the following procedure: ‘‘Errors
found in the sample were extrapolated to the universe
using a mean per unit estimate. The amount of error
was calculated for each sample claim. The average error
per sample was then calculated. The average error was
multiplied by the total number of paid claims to deter-
mine the extrapolated error amount.’’ (Internal quota-
tion marks omitted.) Id., 814. Our Supreme Court upheld
the use of the extrapolation methodology, concluding
that ‘‘[f]ederal regulatory authority . . . requires states
to ensure that [M]edicaid funds are allocated appropri-
ately and simultaneously recognizes the impracticality
of discrete assessment of claims in an effort to recoup
overpayments where a multitude of claims is involved.
Given the nature of the [M]edicaid program as a state
and federal cooperative regime, it would be incongru-
ous to interpret our statutory scheme to disallow a
practice that is recognized at the federal level as the
only feasible method of recouping funds that improp-
erly have been procured. . . . Accordingly, we con-
clude that the trial court properly concluded that the
department’s use of the extrapolation method was
appropriate.’’ (Citation omitted.) Id., 817–18.
On appeal to this court, the plaintiff claims a lack of
evidence about the manner in which the extrapolation
methodology was applied in the audit, reasoning that
the court erred in finding that substantial evidence sup-
ported its use. The court, however, made no such find-
ing. The issue that had been raised in the plaintiff’s
statement of aggrievement was a general attack on the
use of extrapolation with specific examples as to why
any extrapolation, in the plaintiff’s view, produced odd
results in its audit. The review official responded to
that issue by emphasizing the legal propriety of the use
of extrapolation. Thereafter, the claim presented to the
court essentially was that the plaintiff had not been
provided with a record of the precise statistical method-
ology which was used by the auditor. Because this was
not the issue raised before the review official, the court
responded to the legal attack on the use of extrapolation
that had been raised in the statement of aggrievement
and to which the review official responded, rather than
the historical, factual argument presented, for the first
time, to the Superior Court in the plaintiff’s brief. Once
again, the plaintiff mistakenly seems to assume that the
department was obligated to voluntarily provide the
details of its statistical analysis, where the details had
not been attacked by the plaintiff.
The court, in responding to a legal issue, correctly
applied the standard of review when it concluded that,
‘‘[a]lthough the plaintiff suggests that the department
could have used other types of extrapolation methods,
the plaintiff has not established, in view of the statutory
and case law authority, that the department’s extrapola-
tion methods in this case reveal the department to have
acted unreasonably, arbitrarily, illegally or in abuse of
its discretion.’’ The court appropriately reviewed this
claim for unreasonableness, arbitrariness, illegality, and
abuse of discretion and properly found, in the circum-
stances of this case, that the plaintiff has not demon-
strated any injustice in the use of extrapolation by
the auditor.
The judgment is affirmed.
In this opinion the other judges concurred.
1
The plaintiff also claims that the court erred in determining that it bore
the burden of production and persuasion at the administrative level, but
that this conclusion did not affect the court’s ultimate finding that the agency
decision was supported by substantial evidence. Therefore, we decline to
address this specific claim as a separate issue. We address the issue of the
plaintiff’s burden at the trial court level within the context of the first claim.
See part I of this opinion.
2
We refer in this opinion to General Statutes (Rev. to 2013) § 17b-99 (d)
unless otherwise indicated, which is the revision of the statute as it existed
at the time of the events in issue, prior to the enactment of No. 14-162 of
the 2014 Public Acts. Also, there are in the statute provisions relevant to
fraudulent billings. Because fraud is not an issue in the present case, we
do not discuss provisions relating to fraudulent billings.
3
Number 14-162, § 1, of the 2014 Public Acts, effective after the events
in question in the present case, expressly provides for the opportunity of
the provider to present evidence refuting findings at the exit conference.
4
Although the final decision of the review official does not have all the
characteristics of a ‘‘contested case’’; General Statutes §§ 4-166 (4) and 4-
177 et seq.; the procedural requirements of General Statutes § 4-183 are
applicable.
5
‘‘[Medicaid] is a federal-state cooperative program designed to provide
medical assistance to persons whose income and resources are insufficient
to meet the costs of medical care. . . . General Statutes § 17b-2 (8) desig-
nates the department as the state agency responsible for administering the
state’s [M]edicaid program.’’ (Citations omitted; internal quotation marks
omitted.) Goldstar Medical Services, Inc. v. Dept. of Social Services, 288
Conn. 790, 794 n.2, 955 A.2d 15 (2008).
6
The audit report described the extrapolation methodology used to calcu-
late the overpayment as follows: ‘‘A sample of 100 client claim histories
paid during the audit period was reviewed. This sample was chosen by
computer using a random sampling method from a total universe of 1,295
paid clients. Each sample client history was reviewed in accordance with
the objective of the audit. Errors found in the sample client history that
resulted in a financial disallowance were extrapolated to the universe of
paid clients. The average financial disallowance per sample client history
was multiplied by the total number of clients in the universe to determine
the extrapolated audit adjustment.’’ This description from the audit report
is the only exposition in the record of the statistical methodology governing
the selection of samples and extrapolation from those samples.
7
Section 17b-99 (d) has since been amended to provide for an administra-
tive hearing. Public Acts, Spec. Sess., June, 2015, No. 15-5, § 400.
8
General Statutes (Rev. to 2013) § 17b-99 (d) (9), which was repealed and
replaced in 2015; see Public Acts 2015, Spec. Sess., June, 2015, No. 15-5,
§ 400; stated that ‘‘[a] provider may appeal a final decision issued pursuant
to subdivision (8) of this subsection to the Superior Court in accordance
with the provisions of [the UAPA].’’ Although this was not a contested case,
§ 17b-99 (d) (9) provided the plaintiff with a mechanism by which to obtain
judicial review.
9
Because the present case was not a contested case and there was no
formal hearing, not all of the language of the substantial evidence rule is
specifically applicable. We nonetheless recognize and adhere to the princi-
ples of deference to the agency as well as insistence upon the protection
of substantial rights of the individual. See generally Beizer v. Dept. of Labor,
56 Conn. App. 347, 355, 357, 742 A.2d 821, cert. denied, 252 Conn. 937, 747
A.2d 1 (2000).
10
These four audit findings are the only items that the plaintiff raised in
the statement of aggrievement submitted to the review official, and, as such,
are the only items that we will address on appeal. See Dickman v. Office
of State Ethics, Citizen’s Ethics Advisory Board, 140 Conn. App. 754, 764,
60 A.3d 297 (‘‘‘[f]or this court to . . . consider [a] claim on the basis of a
specific legal ground not raised during trial would amount to trial by ambus-
cade, unfair both to the [court] and to the opposing party’ ’’), cert. denied,
308 Conn. 934, 66 A.3d 497 (2013).
11
In its brief, the plaintiff argues that the review official did not request
additional copies of the missing X-rays, ‘‘[y]et, in his Audit Review Final
Decision, [the review official] faulted the plaintiff for not providing additional
copies . . . .’’ Because the auditor calculated an overpayment based on the
absence or inadequacy of documentation, the plaintiff, who requested review
of that decision, had at least the initial burden of producing the missing
documentation. Although the plaintiff claims that it ‘‘could not have divined
that [the review official] would consider the submission of additional X-
rays to be a requirement’’ and that it ‘‘did not know who bore the burden
of proof in the final audit review process,’’ the only party that could have
provided the documentation was the plaintiff.
12
In its reply brief, the plaintiff urges us, in the event that we do not
conclude the plain error doctrine is applicable, to address the two issues
it did not raise before the defendant under our supervisory power. ‘‘[O]ur
supervisory powers are invoked only in the rare circumstance where [the]
traditional protections are inadequate to ensure the fair and just administra-
tion of the courts . . . .’’ (Internal quotation marks omitted.) Somers v.
Chan, 110 Conn. App. 511, 533, 955 A.2d 667 (2008). The plaintiff had the
opportunity to seek review of these issues at the agency level of these
proceedings, thus, the court’s decision not to hear the unraised claims cannot
be characterized as ‘‘inadequate to ensure the fair and just administration
of the courts . . . .’’ (Internal quotation marks omitted.) Id. The use of our
supervisory power, then, is not warranted in this situation.
13
General Statutes (Rev. to 2013) § 17b-99 (d) (11) provides: ‘‘The commis-
sioner shall adopt regulations, in accordance with the provisions of chapter
54, to carry out the provisions of this subsection and to ensure the fairness of
the audit process, including, but not limited to, the sampling methodologies
associated with the process.’’
14
General Statutes (Rev. to 2013) § 17b-99 (d) (2) provides that ‘‘[a]ny
clerical error, including, but not limited to, recordkeeping, typographical,
scrivener’s or computer error, discovered in a record or document produced
for any such audit shall not of itself constitute a wilful violation of program
rules unless proof of intent to commit fraud or otherwise violate program
rules is established.’’
15
The mandate to enact regulations has since been repealed. Public Acts,
Spec. Sess., June, 2015, No. 15-5, § 400. We note, however, that more detailed
standards governing audits were enacted in the same public act.
16
We note that where the plaintiff produced documentation which refuted
a disallowance by the auditor, adjustments were made. Thus, the plaintiff
had the opportunity, in effect, to address and to correct ‘‘clerical errors’’ in
any event.
17
In one such example, Caserta attacked the auditor’s use of extrapolation
in the audit on the basis that extrapolation produced results that were
inconsistent with the work actually completed by the plaintiff. ‘‘There are
many references to ‘no documentation’ as a justification for denying payment
. . . . Sample 55 in the patient pool . . . is a classic example of the total
disregard for . . . facts by your committee. As can be readily seen from
the patient’s chart ALL work has been dated and properly documented. The
lone exception would be [the code used for partial dentures]. Here too, you
have applied the principle of extrapolation and have come up with the
invalid conclusion that—this based on extrapolation—13 patients did not
receive their partial dentures. Insofar as I only performed this procedure
27 times in the entire time period that [was audited], it would mean that
50% of my patients did not get their dentures! Once again, this is NOT
supported by facts. . . . There is no justification for such denial, and I will
not accept it.’’
The plaintiff is correct that statistical sampling may produce results in
certain circumstances that do not reflect with complete accuracy the work
providers perform. Imperfect though it may be, statistical sampling, never-
theless, has been recognized by courts, and approved by the legislature, as
a valid approach to conducting Medicaid audits. The plaintiff did not indicate
in its statement of aggrievement that the exact method of extrapolation
used by the auditor was flawed, and that, perhaps, a different method might
have produced more accurate results. The plaintiff also did not suggest that
the auditor had made a mistake in applying the statistical principles of
extrapolation or miscalculated the overpayments. Rather, the plaintiff levied
a broad attack against the use of statistical sampling at all.
18
See footnote 5 of this opinion.
19
The plaintiff argues that Goldstar Medical Services, Inc., is not disposi-
tive, claiming that ‘‘Goldstar approved the use of extrapolation methodology
in a Medicaid audit conceptually, but it did not adopt or endorse a specific
extrapolation methodology, and it did not approve the use of any and every
conceivable methodology. The full scope of the exact extrapolation method-
ology which was used by the defendant in its audit of the plaintiff cannot
be discerned from the four sentence description of the methodology con-
tained in the [Audit Review Final Decision], and the record sheds no light
on whether that methodology, whatever it was, was properly employed
and implemented.’’
The record does not contain more specific evidence about the manner
in which the extrapolation methodology was applied in this case because
the plaintiff did not raise this claim regarding the precise statistical methodol-
ogy to be applied before the review official. Instead, the plaintiff raised a
legal argument about the use of extrapolation as a general principle at all.
The use of extrapolation was generally accepted by our Supreme Court in
Goldstar Medical Services, Inc.; therefore, the plaintiff’s argument that our
Supreme Court approves the use of extrapolation only ‘‘conceptually,’’ but
does not ‘‘approve’’ the use of extrapolation as applied in this case is not
a persuasive rationale for reversal.