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No. 23-ICA-11 Samantha Burgess, Alyssa Skeens, George Grover, Jessica Halstead, and 

Sunshine Holstein v. West Virginia Department of Human Services, Bureau of Medical 

Services, and

No. 23-ICA-39 Holistic, Inc. v. West Virginia Department of Human Services, Bureau for

Medical Services

SCARR, C.J., concurring, in part, and dissenting, in part: 

I write separately from the majority to concur in part and dissent in part. I 

concur with the analysis and all findings and conclusions of the majority opinion as to 

jurisdiction, part of the first assignment of error and the second assignment of error. I agree 

with the majority opinion that this Court has jurisdiction over this appeal. I also agree that 

the decision of BMS to suspend Medicaid payments to Petitioners was anything but 

arbitrary and capricious and that BMS did consider and did not abuse its discretion in 

concluding that good cause did not exist to prevent the mandatory suspension of payments. 

I further concur with the majority’s conclusion as to the adequacy of the specific detail of 

the allegations in BMS’ pre-suspension notice which was subsequently supplemented with 

additional information. And, finally despite my dissent, I concur with the ultimate holding 

in the case. 

My dissent is limited to the conclusion that payments for services already 

provided, described as “earned funds,” do not constitute a property interest under the 

State’s Medicaid program triggering due process concerns and protections. I distinguish 

the status of “earned funds” from the alleged right or interest in continued participation in 

the Medicaid program which I agree, in these circumstances, is not a constitutionally 

FILED

June 12, 2024

released at 3:00 p.m.

ASHLEY N. DEEM, DEPUTY CLERK

INTERMEDIATE COURT OF APPEALS

OF WEST VIRGINIA
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protected property interest. However, I believe that uninterrupted payment of “earned 

funds” under the State’s Medicaid program constitutes a property interest protected by the 

due process clause of the Fourteenth Amendment of the United States Constitution and 

Section 10 of the West Virginia Constitution. The majority opinion notes that there is law 

going both ways on this issue and specifically references the holding of the Fourth Circuit 

Court of Appeals in Ram v. Heckler, 792 F.2d 444 (4th Cir. 1986), which actually 

concluded that there is a constitutionally protected property interest in federal healthcare 

programs such as Medicaid and Medicare. While I do not agree that continued participation 

in such programs by healthcare providers is a constitutionally protected property interest, 

I do believe that payment of “earned funds” is such a property interest requiring due process 

protections. I am particularly uncomfortable with the logic and conclusion that the simple 

initiation of a fraud investigation, which may or may not ultimately result in findings of 

fault, somehow vitiates constitutionally protected property interests. This conclusion is ripe 

for abuse. Despite my dissent on the issue of constitutionally protected property interests 

in payment of “earned funds,” like the majority, I am satisfied that under the circumstances 

in this case, adequate due process protections were provided to the Petitioners, although 

the delays in the process and provision of detailed information as to the alleged fraud, 

resulting in lengthy suspensions, are troubling, particularly as it relates to the individual 

Petitioners.