Administrative Law: Judgments:
Appeal and Error. A judgment or final order rendered
by a district court in a judicial review pursuant to the
Administrative Procedure Act may be reversed, vacated, or
modified by an appellate court for errors appearing on the
___: ___ . When reviewing an order of a district court under
the Administrative Procedure Act for errors appearing on the
record, the inquiry is whether the decision conforms to the
law, is supported by competent evidence, and is neither
arbitrary, capricious, nor unreasonable.
Judgments: Appeal and Error. An appellate
court, in reviewing a district court's judgment for
errors appearing on the record, will not substitute its
factual findings for those of the district court where
competent evidence supports those findings.
Statutes. Agency regulations properly
adopted and filed with the Secretary of State of Nebraska
have the effect of statutory law.
Statutes: Appeal and Error. Statutory
language is to be given its plain and ordinary meaning, and
an appellate court will not resort to interpretation to
ascertain the meaning of statutory words which are plain,
direct, and unambiguous.
Administrative Law: Presumptions: Proof.
When challenging the decision of an administrative agency,
the presumption under Nebraska law is that the agency's
decision was correct, with the burden of proof upon the party
challenging the agency's actions.
Administrative Law: Medical Assistance. The
Department of Health and Human Services may impose sanctions
against a Medicaid service provider for (1) presenting any
false claim for services for payment, [303 Neb. 2] (2)
failing to make available to the department records of
services provided to Medicaid clients when requested, and (3)
breaching the terms of the Medicaid provider agreement.
___ . Sanctions available to the Department of Health and
Human Services for a Medicaid service provider violation
include termination from the Medicaid program, suspension or
withholding of payments, recoupment from future payments, or
___ . The decision of the sanction to be imposed for a
Medicaid service provider violation is left to the discretion
of the director of the Department of Health and Human
___: ___ . The director of the Department of Health and Human
Services considers the following factors in determining an
appropriate sanction for a Medicaid service provider
violation: (1) seriousness of the offenses, (2) extent of
violations, (3) history of prior violations, (4) prior
imposition of sanctions, (5) prior provision of provider
education, (6) provider willingness to comply with program
rules, (7) whether a lesser sanction will be sufficient to
remedy the problem, and (8) actions taken or recommended by
peer review groups and licensing boards.
Administrative Law: Courts: Appeal and
Error. In a de novo review by a district court of
the decision of an administrative agency, the level of
discipline imposed by the agency is subject to the district
court's power to affirm, reverse, or modify the decision
of the agency or to remand the case for further proceedings.
from the District Court for Lancaster County: John A.
Colborn, Judge. Affirmed.
A. Jorgensen, of Morrow, Willnauer & Church, L.L.C., for
Douglas J. Peterson, Attorney General, and Ryan C. Gilbride
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, Papik,
and Freudenberg, JJ.
Tran appeals the order of the district court for Lancaster
County affirming the decision of the Nebraska Department of
Health and Human Services (DHHS) to terminate her status as a
Medicaid service provider. We affirm.
Neb. 3] BACKGROUND
immigrated to the United States from Vietnam in 2002. In 2015
and 2016, Tran provided personal assistance services (PAS) to
Nebraska Medicaid clients. Tran fulfilled a need for service
providers for elderly Vietnamese individuals, especially due
to her ability to speak Vietnamese.
October 7, 2016, DHHS issued a letter to Tran indicating that
DHHS was conducting a review of Tran's claims for payment
due to overlapping services and that her payments under the
Nebraska Medical Assistance Program, also known as Medicaid,
had been suspended pending the outcome of the review. The
letter stated that the review would be performed "to
ensure that funds are only spent on medically necessary and
appropriate services." As part of the review, DHHS asked
Tran to submit documents, including service needs assessments
and authorizations for each client, monthly or weekly work
logs, and required billing forms. DHHS advised Tran to
conduct a self-audit on all services she provided from May
2015 through October 7, 2016.
conclusion of its investigation, DHHS determined that Tran
had overlapped services between clients and had failed to
provide DHHS documentation of her services. Based on these
failures to adhere to the standards for participation in
Medicaid, DHHS terminated Tran's provider agreements for
good cause. On November 23, 2016, DHHS issued a letter to
Tran informing her of her permanent exclusion from the
Medicaid program, effective immediately.
timely appealed to DHHS. In her appeal request, Tran admitted
she may have overlapped services because of emergency
situations. She indicated that her work schedule required
flexibility in order to accommodate the special needs of her
clientele. Tran further admitted that she did not retain
copies of her weekly timesheets. Tran apologized and said
that the audit was a learning experience for her.
administrative hearing was held on March 15, 2017, after
which the DHHS director of the Division of Medicaid [303 Neb.
4] and Long-Term Care (Director) issued a written order
affirming DHHS' action. The Director found that Tran
"billed for overlapping services and when requested to
present documents to support billing admitted that she does
not keep documentation." The Director found that
Tran's actions were contrary to the Medicaid regulations
and that DHHS' action was proper. Tran timely filed a
petition for review in district court pursuant to the
Administrative Procedure Act (APA), Neb. Rev. Stat.
§§ 84-901 to 84-920 (Reissue 2014 & Cum. Supp.
November 28, 2017, the district court entered an order
affirming DHHS' decision to terminate Tran as a Medicaid
service provider. The court found that DHHS' decision was
supported by the evidence and applicable authority. The court
rejected Tran's argument that she was never informed that
she was required to retain records of the services she
provided. The court found that Tran's (1) presentment of
false claims for payment, (2) failure to make available to
DHHS her records of services, and (3) breach of the terms of
her provider agreements each constituted grounds for
sanctions, and that the sanction imposed of permanent
exclusion from the Medicaid program was within the
Director's discretion. Tran timely appealed from the
adverse decision of the district court. We moved the appeal
to our docket pursuant to our statutory authority to regulate
the caseloads of the appellate courts of this
assigns, restated and consolidated, that the district court
erred in (1) finding that Tran billed for overlapping
services and (2) affirming DHHS' excessive ...