Blevins v. Div. of Med. Assistance Programs

291 Or.App. 669

422 P.3d 407

Laura BLEVINS, Petitioner,

v.DIVISION OF MEDICAL ASSISTANCE PROGRAMS, acting BY AND THROUGH the OREGON HEALTH AUTHORITY, Respondent.

A162466

Court of Appeals of Oregon.

Argued and submitted December 14, 2017.

May 9, 2018

Hermine Hayes-Klein argued the cause and filed the briefs for petitioner.

Jona J. Maukonen, Assistant Attorney General, argued the cause for respondent. With her on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

Before Ortega, Presiding Judge, and Garrett, Judge, and Powers, Judge.

GARRETT, J.

Petitioner seeks review of a final order of the Division of Medical Assistance Programs (DMAP), a division of the Oregon Health Authority, cancelling a contested case hearing regarding DMAP's denial of her request for prior authorization of an out-of-hospital birth. We conclude that DMAP's order cancelling the contested case hearing lacks substantial reason. See Hooper v. Division of Medical Assistance Programs , 273 Or. App. 73, 86, 356 P.3d 666 (2015) (a final administrative order "must demonstrate substantial reason, that is, the reasoning leading from the facts found to the conclusions drawn" (citing Drew v. PSRB , 322 Or. 491, 499-500, 909 P.2d 1211 (1996) )). Accordingly, we reverse and remand.

The facts pertinent to our resolution are not in dispute. Petitioner, who was covered by the Oregon Health Plan (OHP), became pregnant. She decided to have her baby delivered outside of a hospital setting, at the Klamath Women's Clinic birth center, by a nurse-midwife who was not enrolled as a provider in petitioner's coordinated care organization. Petitioner planned to give birth vaginally, despite having previously given birth via caesarean section (C-section). Petitioner submitted a prior-authorization request for a "vaginal birth after caesarean" (VBAC) to DMAP, which denied petitioner's request, stating that a "previous C-section is an automatic high-risk exclusion" for an out-of-hospital birth and that petitioner's provider had not submitted a "plan of care" addressing petitioner's particular needs in light of her previous C-section. Petitioner obtained private insurance to cover the costs of her out-of-hospital birth.

Petitioner sought to appeal the denial of coverage and requested a hearing for review of DMAP's denial of her prior-authorization request. DMAP referred the matter to the Office of Administrative Hearings (OAH) for a contested case hearing. While the matter was pending before OAH, petitioner gave birth to her child. DMAP then cancelled the contested case hearing, leading to this petition for judicial review.

In her first assignment of error, petitioner challenges DMAP's cancellation of the contested case hearing.

Petitioner's second, third, and fourth assignments of error address the substantive merits of DMAP's denial of petitioner's prior-authorization request. As explained below, we agree with petitioner that DMAP's order canceling the contested hearing lacks substantial reason, and we reverse and remand for that reason. We decline to address petitioner's remaining assignments of error, as one possible outcome on remand is a contested case hearing at which the merits of DMAP's denial of the prior-authorization request may be addressed in the first instance. Accordingly, our discussion that follows is limited to the narrow procedural issues concerning the cancellation of the hearing.

Petitioner's baby was due in March 2016. On February 6, petitioner received DMAP's letter denying her request for coverage for an out-of-hospital birth, dated January 28. Petitioner promptly sought review in a contested case hearing, and requested expedited consideration under former OAR 410-141-0265 (Oct. 31, 2013). On March 7, DMAP denied the request for an expedited hearing, and scheduled the matter for hearing before an administrative law judge on May 2, 2016. On March 19, petitioner gave birth at the birth center. The costs associated with the birth were paid by the private insurance that petitioner had obtained.

On April 28, 2016, petitioner submitted her hearing memorandum and related materials for the contested case hearing scheduled for May 2. Later that same day, petitioner received a letter from a DMAP official, Niño, stating that DMAP had cancelled the hearing and withdrawn the case from OAH pursuant to OAR 137-003-0515(4)(b) (providing that an agency may withdraw a case before hearing if "[a]ll of the issues in the case have been resolved without the need to hold a hearing"). By way of explanation for the cancellation and withdrawal, DMAP's letter stated:

"OHA has contacted the office of Klamath Women's Clinic Birth Center to establish whether or not a valid ‘OHP Client Agreement to Pay for Health Services’ form had been signed. April at Klamath Women's Clinic Birth Center confirmed that you did not sign this form. As a result, you cannot be billed for the above mentioned service (OAR) 410-120-1280(3)(h).

"This case has been dismissed from the Office of Administrative Hearings ( OAR 137-003-0515(4)(b) ) as the issue described by your Administrative Hearing Request is no longer hearable.

"If you should receive a bill for services, please contact OHA Client Services ***."

On judicial review, the parties appear to agree as to the meaning of that letter. DMAP apparently determined that petitioner could not be personally billed by the birth center for the costs associated with the childbirth because petitioner had not signed a particular form that is required in order for OHP patients to be charged for services. See OAR 410-120-1280(3)(h) (requiring that, before a provider may bill a person enrolled in OHP for a noncovered service, and before providing that service, "the client must sign the provider-completed Agreement to Pay (OHP 3165)"). Because petitioner could not be personally billed by the birth center for birth services, DMAP then determined that the "issue" for which petitioner had requested a hearing was "no longer hearable." According to the petitioner, the problem with DMAP's reasoning is that under ORS 414.635(3), persons covered by OHP "have the right to appeal decisions about care and services through the [A]uthority in an expedited manner and in accordance with the contested case procedures in ORS chapter 183." Thus, according to petitioner, when DMAP denied her request for prior authorization of the out-of-hospital birth, petitioner was statutorily entitled to a hearing on the propriety of that denial regardless of whether she could be personally billed for the medical services that she had received.

Following oral argument, we requested that petitioner submit a memorandum identifying any financial injury for which she seeks redress, or, in the alternative, if there is no such injury, the nonspeculative, practical effect of a decision from this court that the cancellation of the hearing was improper. In a supplemental memorandum, petitioner stated that she had "borrow[ed]" $375 from family members to pay the premium for the private insurance she obtained, but she did not state that she is seeking reimbursement from DMAP for that expense or any other medical expense. She described her "primary financial injury" as "the cost of attempting to exercise her rights *** through this legal action"—in other words, "the opportunity to recoup the legal fees for exercising her statutory rights" under ORS 183.497. We understand petitioner's cryptic response to mean, therefore, that she is seeking compensation only for attorney fees and costs. In her briefing, except for entitlement to a contested hearing, petitioner does not point to any other nonspeculative effect that reversal of DMAP's order would have on her rights at present. Accordingly, as explained below, we conclude that the petition for review is moot.

An action is moot if resolution thereof " ‘no longer will have a practical effect on or concerning the rights of the parties.’ " Eastern Oregon Mining Association v. DEQ , 360 Or. 10, 15, 376 P.3d 288 (2016) (quoting Brumnett v. PSRB , 315 Or. 402, 406, 848 P.2d 1194 (1993) ). In determining whether resolution of the petition for review will have a "practical effect" on or concerning petitioner's rights, our decision in Hooper is illustrative. In that case, the petitioner, who was covered by OHP, sought review of an order denying his request for a hearing after he was denied coverage for transportation to obtain a replacement wheelchair. 273 Or. App. at 75-76, 356 P.3d 666. The petitioner, who relied on a wheelchair for mobility, argued that, although he had already obtained a replacement wheelchair and no longer needed transportation for that purpose, the case was not moot "given his ongoing medical transportation needs and his ongoing relationship with DMAP and [the transportation provider]." Id. at 79, 356 P.3d 666. We concluded that the case was moot despite the fact that the "petitioner's hearing request is a disputed issue that has yet to be finally resolved and that might result in petitioner receiving a hearing to challenge the earlier transportation denial." Id. at 83, 356 P.3d 666. We so concluded because the "petitioner's need for transportation for a replacement wheelchair has been resolved," and the petitioner did not have a "current request or need for medical transportation." Id.¹

In this case, as far as we can determine, petitioner is not seeking reimbursement for her private-insurance expenses or any other injury suffered as a result of DMAP's denial of prior authorization except for attorney fees and costs that she incurred in challenging that denial.² She has already given birth, and, therefore, her need for OHP coverage for that particular birth "has been resolved." Cf. id. Although petitioner stated in an affidavit that she and her husband plan to have more children, there is no indication that she has a "current request or need" for birth services. Cf. id. Thus, as in Hooper , because conducting a...