### I N THE 

### I NTERMEDIATE 

### C OURT OF 

### A PPEALS OF 

### W EST 

### V IRGINIA Spring 2024 Term

_____________________ No. 23

- ICA

- 11 No. 23

- ICA

- 39

_____________________ SAMANTHA BURGESS, ALYSSA SKEENS, GEORGE GROVER, JESSICA HALSTEAD, and SUNSHINE HOLSTEIN ,

Petitioners Below, Petitioner s ,

v. WEST VIRGINIA DEPARTMENT OF HUMAN SERVICES ,

BUREAU FOR MEDICAL SERVICES , Respondent Below, Respondent

.

And HOLISTIC, INC., Petitioner Below, Petitioner,

v. WEST VIRGINIA DEPARTMENT OF HUMAN SERVICES,

BUREAU FOR MEDICAL SERVICES, Defendant Below, Respondent.

_______________________ ____________________________________ Appeal from the West Virginia Department of H uman Services ,

Bureau for Medical Services
AFFIRMED , in part , and REMAND ED , in part , with INSTRUCTIONS

_________________________________________________________

Submitted: February 7, 2024 Filed: June 12, 2024 

### FILED June 12, 2024 released at 3:00 p.m. ASHLEY N. DEEM, DEPUTY CLERK INTERMEDIATE COURT OF APPEALS

OF WEST VIRGINIAWilliam D. Wilmoth , Esq.

Justin M. Wilson, Esq. Steptoe & Johnson , PLLC Wheeling , West Virginia Counsel for Individual Petitioner s J. Zak Ritchie, Esq. Isaac R. Forman, Esq. Skyler A. Matthews, Esq. Hissam Forman Donovan Ritchie PLLC Charleston, West Virginia Counsel for Petitioner, Holistic Patrick Morrisey, Esq. Attorney General Brent Wolfinbarger , Esq

. Senior Deputy Attorney General Gary L. Michels, Esq. Assistant Attor ney General Michael R. Williams , Esq. Principal Deputy Solicitor General Spencer J. Davenport , Esq. Assistant Solicitor General Charleston , West Virginia Counsel for Respondent

J U DGE GREEAR delivered the Opinion of the Court. CHIEF JUDGE SCARR concurs, in part, and dissents, in part, and reserves the right to file a separate opinion

.1

GREEAR , JUDGE:

Petitioner s Samantha Burgess, Alyssa Skeens, George Grover, Jessica Halstead, Sunshine Holstein, (“ Individual Petitioners ” ) and Holistic, Inc. (“Holistic” ) 1 (collectively referred to as “Petitioners”) appeal the December 7, 2022, decision of the West Virginia Department of Human Service s 2 (“DHS”), Bureau for Medi cal Services (“BMS”) denying P etitioners’ request to rescind or suspend, in whole or in part, the suspension of all Medicaid payments to Holistic and the Individual Petitioners pending completion of a fraud investigation by the Medicaid Fraud Control Unit (“MFCU”). On appeal, P etitioners argue that BMS’ decision to suspend Medicaid payments was arbitrary and capricious in that BMS did not consider whether good cause existed, under 42 C.F.R. § 455.23(e), to not suspend said payments , in whole or in part . Fur ther, P etitioners allege that BMS acted arbitrarily and capriciously in failing to provide “adequate specific detail of the allegations in its pre

- suspension notices” to P etitioners.

1 By order dated January 19, 2024, this Court , on its own motion, consolidated the appeal filed collectively by the I ndividual Petitioners (Case No. 23

- ICA

- 11) with the appeal filed by Holistic (Case No. 23

- ICA

- 39) for argument, consideration, and decision.

2 Pursuant to West Virginia Code § 5F

- 2

- 1a (2024) , the agency formerly known as the West Virginia Department of Health and Human Resources was terminated. That agency is now three separate agencies: the Department of Health Facilities, the Department of Health, and the Department of Human Services. See West Virginia Code § 5F

- 1

- 2. The West Virginia Department of Health and Human Resources , Bureau for Medical Services is now known as the Department of Human Services , Bu reau for Medical Services.2 After our review of the record and consideration of the oral and writte n arguments of counsel, we find no merit in P etitioners ’ claims . Here, P etitioners received adequate notice of the suspension of the ir Medicaid payments , as required under 42 C.F.R. § 455.23 (b)

. We also find no error in BMS’ discretionary determination that good cause did not exist for the lifting of the suspension of Petitioner s’ Medicaid payments, in whole or in part , except as to Individual Petitioner Sunshine Holstein

. As expressly noted by BMS in its Supplemental Brief to this Court, “ MFCU’s investigation [of Holistic and the
Individual Petitioners ] did not yield sufficient evidence to warrant pursuing civil remedies against Sunshine Holstein.” BMS therein noted its plan to restore Ms. Holstein’s “ability to bill Medicaid.” To the exten t that such action has not already been taken by BMS, we hereby direct BMS to lift its suspension of Ms. Holstein’s Medicaid payments forthwith. Accordingly, we affirm BMS’ December 7, 2022, decision, and remand this matter for further proceedings only as it pertains to the lifting of the suspension of Medicaid payment s of Sunshine Holstein

.

I. FACTUAL AND PROCEDURAL BACKGROUND We begin our factual recitation with a brief discussion of the Medicaid program in West Virginia and the general proces ses in that program for identifying, investigating, and, if necessary, prosecuting Medicaid fraud or abuse. Authorized under Title XIX of the Social Security Act, Medicaid is a n entitlement program financed by the state and federal governments and administered individ ually by each state. See 42 U.S.C. § 1396

- 1

. In Forloine v. Persily , No. CV 3:23

- 0450, 2024 WL 1316237, at *1 (S.D.W. Va.3

Mar. 27, 2024) (memorandum decision) , the United States District C ourt for the Southern District of West Virginia described Medicaid as a “cooperative federal

- state program.” See Douglas v. Indep. Living Ctr. of S. Cal., Inc. , 565 U.S. 606, 610 (2012). Thus, in exchange for federal funds, states agree to follow “congressionally imposed conditions” in the Medicaid program. See Ar mstr ong v. Exceptional Child Ctr., Inc. , 575 U.S. 320, 323 (2015).

In West Virginia, BMS is the agency responsible for administering the Medicaid p rogram. See Your Guide to Medicaid 2023 , effective April 1, 2023, at page 2. 3 It is the mission statement of BMS to, in part, administer the Medicaid program, “while
maintaini ng accountability for the use of resources , in a way that assures access to appropriate, medically necessary, and quality health care services for all members.” Id

.

Within BMS is the Office of Program Integrity (“OPI”). The OPI was formed in July of 1995 , as a res ult of funding by the West Virginia Legislature, to monitor the utilization of Medicaid s ervices in West Virginia to ensure compliance with federal Medicaid requirements. In that regard, OPI conducts post

- payment reviews and is responsible for id entifying potential fraud, waste, and abuse cases . OPI uses a combination of processes to identify potential fraud cases, including referrals , data analysis, and data

3 The West Virginia Legislature has identified BMS as the “State Medicaid agency” charged with administration and supervision of the state Medicaid program. See West Virginia Code § 9

- 1

- 2 (2024).4

mining ( which uses algorithms that sort Medicaid claims data for further review and ident if ies program outliers ).

OPI ’s functions also include oversight of the Medicaid Managed Care Special Investigation Unit (“SIU”), which is tasked with managing policies and procedures for Medicaid Managed Care Organizations (“MCO”) to detect and deter frau d, waste, and abuse in the Medicaid program . The SIU must notify OPI of all incidents of fraud, waste, and abuse it discovers, and must work with BMS and MFCU to administer effective prevention, detection, and resolution of fraud, waste, and abuse.

For the purpose of investigating and further controlling fraud and abuse in medical programs in West Virginia , the West Virginia Legislature created the MFCU ( previously established within the West Virginia DHS, but now part of the West Virginia Office of the Attorney General )

. As to the necessity for MFCU, i n West Virginia Code §
9

- 7

- 1 ( 2019 ) , the Legislature expressly stated the following:

It is the finding of the Legislature that substantial sums of money have been lost to the state and federal government in the operation of the medical programs of the state due to the overpayment of moneys to medical providers. Such overpayments have been the result of both the abuse of and fraud in the reimbursement process. West Virginia’s MFCU has the responsibility fo r the investigation and referral for prosecution of all violations of applicable state and federal laws pertaining to5

the provision of goods or services under the medical programs of the state, including the Medicaid program. MFCU receives referrals from B MS.

We now turn our attention to the specific facts relevant to our analysis of the instant case. In 2018, Holistic , a company that provided primary medical care , counseling services (including substance abuse counseling ) , and medically assisted treatmen t for substance use disorde r, operated two facilities in Kanawha County, West Virginia

. 4 As part of its services, Holistic had an in

- house laboratory where it processed urine drug tests and pregnancy tests. In July of 2018, Holistic entered into a contract with Uni C are (a West Virginia Medicaid MCO ) to accept payments for medical services provided to West Virginia Medicaid recipi ents

.

In 2018

- 2019 , as a result of data mining , Holistic was identified by the SIU

as a n outlier for Medicaid billing and was found to have “aberrant billing practices that appeared to be unjustifiable based upon normal business practices.” These practic es include “ high ” billing of several current procedural terminology (“CPT”) codes

. 5 As part of SIU ’s investigation,

4 Holistic was i ncorporated in W est Virginia on January 4, 2018 , and opened for business in West Virginia in April of 2018

.

5 CPT codes have been used for more than fifty years and have been described as the “primary medical language to communicate across health care.” CPT codes provide a “uniform nomenclature for coding medical procedures and services

. ” CPT Codes,6 [e]ight, (8) medical records [of Holistic patients] with eight hundred and sixty two, (862) dates of services were reviewed. The results of the review found a potential overutilization, and/or unbundling of CPT codes 80307, 81025, 82075, 99212, 99213, 99214, 99401, 99402, 99406 and 99407. 6 The data show[ed] a consistent trend of billing patients [for] a drug screen test , ([CPT] 803 07) [;] alcohol breath screen test, ([CPT] 82075)[;] E & M [established medical patient office visits] ([CPT] 99213, 99214)[;] preventive medicine counseling ([CPT] 99401, 99402)[;] and tobacco cessation counseling ([CPT] 99406, 99407). The codes [were] rep eated weekly for these eight patients. In addition, there appears to be a trend of high daily volume for time

- based codes and potential for impossible day billing. The data show[ed] a consistent pattern of billing timed preventative medicine counseling cod es, with tobacco use cessation codes and obesity screening/weight loss counseling. These codes represent a unit of time and must be documented showing that time. In all of the [eight] record s reviewed with the dates of service for these specific codes, the re is no time documented[,] and the provider lists the dates on a common template sheet.

In September of 2019, an SIU investigator conducted a telephone interview with Holistic ’ s president , Shawn Blankenship. 7 During this interview, Mr. Blankenship

American Medical Association Catalog of Topics, http://ama

- assn.org/topics/cpt

- codes (last visited June 10 , 2024).

6 CPT code 80307 is presumptive drug screening test ; CPT code 81025 is urine pregnancy test ; CPT code 82075 is alcohol breath test ; CPT code 99212 is established patient office or other outpatient visit of 10

- 19 minutes ; CPT code 99213 is established patient office or oth er outpatient visit of 20

- 29 minutes ; CPT code 99214 is established patient office or other outpatient visit of 30

- 39 minutes ; CPT code 99401 is preventive medicine counseling of approximately 15 minutes ; CPT code 99402 is preventive medicine counseling of approximately 30 minutes ; CPT code 99406 is smoking cessation counseling from 3

- 10 minutes; and CPT 99407 is smoking cessation counseling in excess of 10 minutes.

7 Mr. Blankenship is a nurse practitioner and co

- incorporator of Holistic, along with his wife Julie Blankenship , who serves as the vice president and business manager of7

was asked questions regarding Holistic ’ s counseling staff, billing of CPT codes 81025 and 82075 for urine drug screens and pregnancy tests (including billing for pregnancy tests for several women who had no possibilit y of pregnancy) , medical record keeping (specific to CPT codes 99401, 99402, 99406, and 99407), and Holistic’s relationship with Dr. Ghali
Ibrahim

- Bacha. 8 The SIU investigator’s findings were contained in a Report of Investigation Case Summary t hat identified several instances of fraud and/or abuse committed by Petitioner s , which w ere reported to BMS on January 24, 2020 . Thereafter, on March 23, 2020, BMS referred the matter, via a Medicaid Fraud Referral Form (“ Form ”) , to MFCU. In the Factual Explan ation of the Allegation part of the Form , BMS noted : [t]he provider [Holistic] was identified as an outlier for

utilizing high level [ E/M ] services in the UniCare market, specifically CPT codes (99213, 99214). As well as CPT codes, alcohol breath, (82075) , preventative medicine counseling, (99401, 99402), smoking/tobacco cessation counseling, (99406, 99407), and presumptive drug screening, 80307.

The Form further classified the referral as “a credible allegation of fraud”
referral. Credible allegation of fraud is defined in 42 C.F.R. § 455.2 as “. . . an allegation,

Holistic. The record reflects that Mr. Blankenship provided all records and documentation requested by the SIU during its investigation and that he “fully cooperat[ed] wit h the government’s inquiry.”

8 Dr. Bacha was identified as a medical director of Holistic. During his SIU interview, Mr. Blankenship stated that Dr. Bacha does not see patients at Holistic but comes into Holistic ’s office once a week to review and authoriz e records. Mr. Blankenship had no explanation as to how Holistic’s billing records (submitted for payment through Medicaid) indicated that Dr. Bacha saw forty (40) patients at Holistic, other than simply claiming a billing error.8

which has been verified by the State from any source, including . . . (2) [c]laims data mining .” By letter dated May 2, 2022, BMS notified Holistic that BMS intended to

suspend [ Medicaid ] payments to Holistic, Inc. in whole effective May 16, 2022. This suspension applie s to all of your Medicaid claims and the entirety of the organization(s). Federal law requires that Medicaid pa yments be suspended pending the investigation of a “credible allegation of fraud” against any individual or entity, unless the state determines that there is good cause not to suspend payments. 42 U.S.C. § 1396b(i)(2)(C); 42 C.F.R §§ 455.2, 455.23. This su spension is due to an ongoing investigation by the West Virginia [MFCU]. Further, the letter stated :

[p]ursuant to federal law, the suspension of payments based on a credible allegation of fraud is temporary and will end upon the determination that ther e is insufficient evidence of fraud, or on the completion of legal proceeding(s) related to the alleged fraud by Holistic, Inc. 42 C.F.R. § 455.23(c)(1).
Similar letters were sent that same day from BMS to the Individual Petitioners , for whom Holistic had billed services, notifying each of them that their Medicaid payments would also be suspended on May 16, 2022 . In response to the May 2, 2022, letter , counsel for Holistic, via a May 3, 2022, e

- mail and a May 6, 2022, letter, requested an administrativ e hearing and additional information regarding the specific findings against Petitioner s . BMS responded to the e

- mail from Holistic’s counsel via e

mail on May 4, 2022, which acknowledged receipt of the May 3, 2022, e

- mail and indicated that a response wou ld be forthcoming, “as soon as possible.”9 By letter dated May 16, 2022, BMS again wrote to Holistic to advise that suspension of Medicaid payments, in whole, would become effective on May 23, 2022. The May 16, 2022, letter contained the same language a s the May 2, 2022, letter (cited above) , but with the addition of two sentence s , which indicated that

BMS reviewed all good cause exceptions to payment suspension allowed by statute and determined none are applicable in this instance. . . This investiga tion concerns allegations of knowingly billing for services never rendered. 9

On May 19, 2022, Holistic filed a Verified Petition for Writ of Prohibition in the Circuit Court of Kanawha County seeking an order prohibiting BMS from implementing the suspension of Medicaid payments. 10 A join d er of the Individual Petitioners in the petition for writ of prohibition was filed on May 20, 2022. In response to Petitioner s’ petition, BMS provided copies of both the SIU Report of Investigation Case Summary and the Medicaid Fraud Referral Form and noted that the suspension of

9 The record does not con tain a copy of a second letter sent by BMS to the Individual Petitioners extending the deadline for suspension of Medicaid payments and indicating that no good cause existed to stop suspension of payments, similar to the May 16, 2022, letter sent to Holist ic . While no letters to the Individual Petitioners dated May 16, 2022, are contained in the record, the record does reflect that Medicaid payments for the Individual Petitioners were not suspended until May 23, 2022, the extended deadline set forth in the May 16, 2022, letter

. Further, during the oral arguments held before this Court, counsel for the Individual Petitioners made reference to two letters received from BMS regarding the suspension of Medicaid payments.

10 That case was styled Holistic, Inc. v. West Virginia Department of Health and Human Resources, Bureau for Medical Services , Civil Action No. 22

- P

- 184 and was assigned to Judge L ouis H. Bloom.10

Petitioner s’ Medicaid payments was proper under federal law

. By Final Order dated July 7, 2022, the writ of prohibition was denied. Specifically, the circuit court determin ed that a writ of prohibition was inappropriate as Petitioner s had “another adequate remedy in the form of an administrative appeal , ” and , further , those Petitioner s “failed to demonstrate any legal error committed” by BMS.

Despite their filing of the writ of prohibition, Petitioner s appeal of the BMS suspension of their Medicaid payments continued without delay and, on July 1, 2022, an expedited Document/Desk Review (“DDR”) Decision was completed by General Counsel for BMS. This DDR D ecis ion upheld suspension of Medicaid payments to all Petitioner s effective May 23, 2022 , noting the finding of a credible allegation of fraud against
Petitioner s and no good cause for exception to the payment suspension requirement , in whole or in part , found

.

Petitioner s appealed the DDR Decision and requested an administrative hearing, which was held before H earing E xaminer Lewis Brewer on August 18, 2022. By decision dated September 7, 2022, the hearing examiner found no error on the part of BMS. Specifically, he noted that by “accepting federal appropriations [BMS] has assented to the conditions imposed by applicable federal laws, rule and regulations.” Further, he found that “[w]here there is a credible allegation of fraud, [BMS] is required to suspend Medicaid payments, unless one of the ‘ good cause ’ exceptions in 42 C.F.R. § 455.23 is found to exist.” Here, the hearing examiner determined that “ P etitioners failed to demonstrate that11

[BMS’] determination that a credib le allegation of fraud existed in this matter resulted from arbitrary and capricious decision making.” As to good cause, the hearing examiner concluded that determination of good cause is left to the discretion of the state. Additionally, he found that Pet itioner s had no constitutional right to receive Medicaid payments and that nothing in the applicable state and federal law entitled Petitioner s to Medicaid payments during a pending fraud investigation. By letter dated December 7, 2022, BMS accepted, witho ut modification, the hearing examiner’s September 7, 2022,
recommended decision.

In January and early February of 2023, Petitioner s filed their underlying appeals before this Court, challenging BMS’ December 7, 2022, decision. Thereafter, on May 17, 2023 , Holistic filed in the Circuit Court of Kanawha County a Petition for Writ of Certiorari seeking additional and similar relief from BMS’ order suspending their Medicaid payments. 11 A hearing was held before the circuit court on August 30, 2023. By order

e ntered September 6, 2023, the circuit court gave BMS sixty days from the date of the August 30, 2023, hearing to provide Petitioners the claims and dollar amounts for all alleged fraudulent activity. Once those dollar amounts were identified, BMS was order ed to pay the outstanding balance of Petitioner s’ Medicaid payments that were not under

11 The Petition for Writ of Certiorari filed by P etitioners below was filed in the existing case of Holistic, Inc. v. West Virginia Department of Health and Human Resources, Bureau for Medical Services , Civil Action No. 22

- P

- 184 and remained assigned to Judge L ouis H. Bloom.12

investigation, less the amount being investigated. As to the remainder of the issues raised by Holistic in its Petition for Writ of Cert io rari , the circuit court held those issues in abeyance pending resolution of the appeal before this Court.

In late November of 2023, results of a Federal Bureau of Investigation (“FBI”) investigation 12 revealed that Holistic allegedly submitted Medicaid claim s for drug testing services purportedly rendered on dates when no patients or staff were present at the Holistic facility where the service supposedly occurred. Holistic was further believed to have “ broke n up ” services rendered on a given day and billed t hose services as though they were provided on different days purportedly because of an assumption that this would improve the probability of reimbursement. Additionally, b illin g records were allegedly submitted by Holistic for October 24

- 31, 2020, while th e employees who purportedly performed the services were on a retreat in Hilton Head , South Carolina , and not seeing patients. It was also alleged that Holistic billed seemingly fraudulent pregnancy testing (given to women who were incapable of being pregna nt).

In December of 2023, Holistic filed a Motion for Contempt against BMS in the Writ of Cert io r a ri case pending in circuit court for its failure to abide by the circuit

12 The results of the FBI in vestigation were revealed following a November 30, 2023, order by United States Magistrate Judge Dwane L. Tinsley, directing the United States Attorney to provide redacted copies of search warrant affidavits to Mr. Blankenship , related to the underlying cl aims of Medicaid fraud in the United States District Court for the Southern District of West Virginia in Charleston.13

court’s September 6, 2023, order . On January 10, 2024, the circuit court 13 issued a Rule to Show Cause against BMS and set the matter for hearing on February 14, 2024.

On January 24, 2024, DHS filed a civil complaint in the Circuit Court of Kanawha County against Holistic , Shawn Blankenshi p, Julie Blankenship, Samantha Burgess, Dr. Ghali Bacha, George Grover, Alyssa Skeens, and Jessica Halstead alleging Medicaid fraud and overpayments totaling , at a collective minimum , $3,852,343.98

. 14 In th e Complaint , DHS allege d that these parties “willf ully made, attempted to make, and/or caused to be made, certain claims for benefits, payments, or allowances ” under the Medicaid program when they “knew, or reasonably should have known, such claims were false, fictitious or fraudulent , and thereby obtaine d payments which were ineligible for payment, constituting fraud under West Virginia Code § 9

- 7

- 6.” 15

13 With the retirement of Judge L ouis H. Bloom on June 20, 2023, the matter is now assigned to Judge Stephanie Abraham.

14 Th e case wa s sty led West Virginia Department of Human Services v. Holistic, Inc., Shawn Blankenship, Julie Blankenship, Samantha Burgess (aka Samantha Shawver), Dr. Ghali Bacha (aka Dr Ghali Ibrahim

- Bacha), George Grover, Alyssa Skeens, and Jessica Halstead , Civil Action No. 24

- C

- 60 , and wa s assigned to Judge Tera Salango.

15 DHS further alleges fraud in billing for services not rendered (Counts Two and Three); Causing submission of claims for fraudulent prescriptions (Cou n t Four); Billing for obesity and tobacco

- related services not rendered and/or not medically necessary (Count Five); Billing for urine drug screen (UDS) services not rendered and/or not medically necessary (Count Six); Duplicate billing (Count Seven); Billing for UDS services without requi red prior authorization (Count Eight); Billing for services not rendered and/or not medically necessary in conjunction with COVID

- 19 tests (Count Nine); Billing for services not rendered by Samantha Burgess (Count Ten); Billing for14 Oral arguments in the instant case were held before this Court on February
7 , 2024. Following those arguments, in a February 12, 2024, order, the parties were ordered to file supplemental briefing to address “whether the payments for services and/or rights to bill for services under the West Virginia Medicaid [p]rogram that were suspended in this action due to the pending fraud investigation constitute a property interest triggering due process concerns.” Supplemental briefing on this issue was submitted by all parties. In the February 12, 2024, order, this Court determined that it had appellate jurisdiction over th is matter but noted that “a detailed opinion . . . would follow.”

II. STANDARD OF REVIEW West Virginia Code § 16

- 1

- 22A(c) (2023) 16 provides for judicial review of contested cases and states that any party affected or aggrieved by a final decision of the
agency (BMS) may seek judicial review of said decision by appealing to this Court, as provided by West Virginia Code § 29A

- 5

- 4, known as the State Administrative Procedure s Act.

services not rendered by , and non

- reimbursable services allegedly rendered by George Grover, Alyssa Skeens, and Jessica Halstead (Counts Eleven, Twelve, and Thirteen )

.

16 West Virginia Code § 16

- 1

- 22A (2023) replaced West Virginia Code § 9

- 2

- 13 (2015) , which was repealed by the We st Virginia Legislature in 2023. West Virginia Code § 9

- 2

- 13(c) and (d) permitted judicial review of contested cases involving BMS by the filing of a petition in the Circuit Court of Kanawha County. West Virginia Code § 9

- 2

- 13(j) further allowed for the re versal, vacation, or modification of an agency decision only as outlined in W est Virginia Code § 29A

- 5

- 4(g) of the Administrative Procedures Act.15 T he State Adm inistrative Procedures Act provides : The court may affirm the order or decision of the agency or remand the case for further proceedings. It shall reverse, vacate, or modify the order or decision of the agency if the substantial rights of the petitioner or petitioners have been prejudiced because the administrative findings, inferences, conclusions, decision, or order are: (1) In violation of constitutional or statutory provisions; (2) In excess of the statutory authority or jurisdiction of the agency; (3) Made upon unlawful procedures; (4) Affected by other error of law; (5) Clearly wrong 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 unwarr anted exercise of discretion.

W est Virginia Code § 29A

- 5

- 4(g) (2021) ; accord West Virginia Code § 16

- 1

- 22a (2023) (stating that the exclusive remedy for judicial review of Board decisions is governed by West Virginia Code § 29A

- 5

- 4(g))

.

Recently in W

est Virginia HCR Manorcare Facilities v. W est Virginia Dep't of Health & Hum. Res., Bureau for Med. Servs. , No. 23

- ICA

- 207, 2024 WL 2381903, at *6 (W. Va. Ct. App. May 23, 2024 ) (memorandum decision) , this Court spoke regarding administrative decisions iss ued by BMS . In HCR , we stated that in reviewing decisions by
BMS , “[t]he ‘clearly wrong’ and the ‘arbitrary and capricious’ standards of review are deferential ones which presume an agency ’ s actions are valid as long the decision is supported by substantia l evidence or by a rational basis

. ” Id. ( citing Syl. Pt. 3, In re Queen , 196 W. Va. 442, 444, 473 S.E.2d 483, 485 (1996) )

.16 Because we must decide whether the hearing examiner was correct in its interpretation of the federal law at issue , our review is further guided by the S upreme C ourt of A ppeals of W est V irginia ’s (“SCAWV”) recognition in syllabus point one of Chrystal R.M. v. Charlie A.L. , 194 W. Va. 138, 459 S.E.2d 415 (1995), that “[w]here the issue on

an appeal

. . . is clearly a question of law or involving an interpretation of a statute, we apply a de novo standard of review.” See also Young v. State , 241 W. Va. 489, 491, 826 S.E.2d 3 46, 348 (2019). With these standards in mind, we now consider the issues raised on appeal.

III. DISCUSSION

As a preliminary matter, we must dispense of Holistic’s contention that this Court lacks jurisdiction to hear Petitioner s’ appeal

. We disagree with Ho listic , and, as noted in our February 12, 2024, order, we find that this Court has jurisdiction over the instant

case . As cited above, West Virginia Code § 16

- 1

- 22A(c) provides that any party aggrieved by a BMS final decision or order may seek judicial review of that decision by filing an appeal with this Court. Accordingly, we find that this Court has jurisdiction to hear the instant case. 17

17 Likewise, in accordance with the statements made by counsel for Holistic during the February 7, 2024, oral argument, we acknowledge that if this Court has jurisdiction over the appeal of BMS’ decisions, then the Circuit Court of Kanawha County lacks such jurisdiction.17 On appeal, Petitioner s raise two assignments of error. First, they argue that BMS’ decision to suspend Medicaid payments to Petitioner s was arbitrary and capricious in that BMS did not consider whether good cause existed, under 42 C.F.R. § 455.23(e), to not suspend said payments , in whol e or in part . In order to properly address Petitioner s’ claim s , we must look to 42 U.S.C. § 1396 ( a ) (37)(B), which provides that state Medicaid programs must

provide for procedures of prepayment and [ post payment ] claims review, including review of appropr iate data with respect to the recipient and provider of a service and the nature of the service for which payment is claimed, to ensure the proper and efficient payment of claims and management of the program . To further expound upon the requirements of a ppropriate procedures for review of Medicaid claims, we look to 42 C.F.R. § 455, which generally address es the program integrity of Medicaid. Section 455.23 deals with the suspension of Medicaid payments to providers in cases of fraud. In section 455.23(a)(1), it is required that

[t]he State Medicaid agency must suspend all Medicaid payments to a provider after the agency determines there is a credible allegation of fraud for which an investigation is pending under t he Medicaid program against an individual or entity unless the agency has good cause to not suspend payments or to suspend payment only in part. ( e mphasis added).

Good cause is addressed in section 455.23(e), which provides that18 [a] State may find that good cause exists not to suspend payments, or not to continue a payment suspension . . . against which there is an investigation of a credible allegation of fraud if any of the following are applicable: (1) Law enforcement officials have specifically request ed that a payment suspension not be imposed because such a payment suspension may compromise or jeopardize an investigation

. (2) Other available remedies implemented by the State more effectively or quickly protect Medicaid funds

. (3) The State determines, based upon the submission of written evidence by the individual or entity that is the subject of the payment suspension, that the suspension should be removed. (4) Beneficiary access to items or services would be jeopardized by a payment suspension . . . (5) Law enforcement declines to certify that a matter continues to be under investigation . . . ; and (6) The State determines that payment suspension is not in the best interests of the Medicaid program. ( e mphasis added).
Generally, as t o statutory construction, the SCAWV has held that “. . . significance and effect must, if possible, be given to every section, clause, word or part of the statute.” Syl. Pt. 3, in part, Meadows v. Wal

- Mart Stores, Inc. , 207 W. Va. 203, 530 S.E.2d 676 (1999). In Nicewarner v. City of Mo rgantown , 249 W. Va. 120, 894 S.E.2d 902 (2023) , the SCAWV found that “ [w] hen a statute is clear and unambiguous and the legislative intent is plain, the statute should not be interpreted by the courts, and in such case it is the duty of the courts not to construe but to apply the statute .” Id. at Syl. Pt. 3, citing Syl. Pt. 5, State v. Gen. Daniel Morgan Post No. 548, Veterans of Foreign Wars , 144 W. Va. 137, 107 S.E.2d 353 (1959). Moreover, it has long been the precedent of West Virginia that “[w]here the language of a statute is free from ambiguity, its plain meaning19

is to be accepted and applied without resort to interpretation.” Syl. Pt. 2, Crockett v. Andrews , 153 W. Va. 714, 172 S.E.2d 384 (1970).

Applying those principles to the instant case, we find that the language of 42 C.F.R. § 455.23(a)(1) requires, by use of the word “ must, ” that the suspension of Medicaid payments is necessary upon a credible allegation of fraud, unless BMS finds “good cause” to either postpone the suspension in w hole or in part. A ccord , VTCC, LLC v. Kimsey , 477 F.Supp.3d 457, 465 (E.D. Va. 2020) (§ 455.23 require [s] the suspension of Medicaid payments, unless one of the regulatory good cause exceptions is found to exist. “ A State

may find that good cause exists no t to suspend payments . . . .” ) See also Border Area Mental Health Servs., Inc. v. Squier , 2013 WL 12140453, at *2 (D.N.M. 2013) (noting that “good cause” is determined “at the discretion” of the state agency). Here, w e find that section 455.23(a) is unamb iguous and must be applied without interpretation.

BMS identif

ies that the current language of section 42 C.F.R. § 455.23(a) states that BMS ha s a mandatory legal obligation to suspend payments to Petitioner s after determining that there was a “credible allegation of fraud” against them. However, section 455.23(a) was amended in February of 201 1 as part of the Affordable Care Act (“ACA”) (passed in March of 2010). In its Final Rule related to this amendment, th e Office of the Inspector General for the Federal DHS (“OIG”) noted “[w]e proposed to implement [§] 6402(h ) (2) of the ACA by modifying the existing §455.23(a) to make payment suspensions mandatory where an investigation of a credible allegation of fraud und er the20

Medicaid program exists.” Medicare, Medicaid, and Children’s Health Insurance Programs , Additional Screening Requirements, Application Fees, Temporary Enrollment Moratoria, Payment Suspensions and Compliance Plans for Providers and Suppliers , 76
FR 5862

- 01, 5932 (February 2, 2011). The OIG further stated, again in discussing its Final Rule and amendments to § 455.23 , that “[c]onsistent with the new ACA provision, we also proposed to create several ‘ good cause ’ exceptions by which States may determine good cause exists not to suspend payments or to suspend payments only in part.” Id. at 5933 (emphasis added)

.

Here, in its May 16, 2022, letters to Petitioner s, BMS noted that it had received a credible allegation of fraud concerning Petitioner s in that they knowingly bill ed for services never rendered. Further, the May 16, 2022, letter advised Petitioner s that BMS “reviewed all good cause exceptions to payment suspension allowed by statute and determined none are applicable in this instance.” E ve n though justification of a decision for no good cause is not required under 42 C.F.R. § 455.23 , Andrew Pack, the Director of
OPI (part of BM S) provided an Affidavit to Petitioner s on August 25, 2022, detailing BMS’ decision that no good cause existed. 18

18 In his Affidavit, Mr. Pack examined each of the six good cause exceptions set forth in § 455 .23(e). As to the first exception, Mr. Pack noted that it was not applicable as MFCU lifted the request not to proceed with payment suspension. Like wise, the second and third exceptions are not applicable as, given the credible allegation of fraud against P etitioners, BMS determined that there are no other remedies (aside from payment suspension) to “effectively protect Medicaid funds” and because P etitioners had the opportunity to contest the suspension via a DDR and administrative hearing (both of which21 In its brief, Holistic acknowledges , and the Individual Petitioners concur, that while the decision not to suspend “might be discretionary[,]” the actual performance of the evaluation of whether good cause exists is mandatory. We agree and find that 42 C.F.R. § 455.23 requires that BMS must suspend payments on a credible allegation of fraud unless the agency has good cause to not suspend payments. However, no matter how it is characterized by Petitioner s , the record clearly establishes that BMS completed a good cause analysis and noted the same in its May 16, 2022, letters to Petitioner s. Simply because Petitioner s disagree with BMS’ discretionary determination does not itself provide grounds for a finding that BMS’ decision was arbitrary or capricious. H ere, Petitioner s simply do not meet their burden of establishing that BMS’ determination of no good cause
was an abuse of discretion.

Petitioner s are critical of BMS for failing to include in its May 2, 2022, letter

to Petitioner s a statement that BMS found no good cause not to grant a suspension of Petitioner s’ Medicaid payments . However, such oversight was corrected in advance of the actual susp ension of Petitioner s’ Medicaid payments . The record reflects that prior to

u pheld the suspension). As to the fourth exception, it also is not applicable as BMS’ Behavioral Health and Long

- Term Care Services Program Director, Cynthia Parson, determined member access to care would not be jeopardized by suspending payments to P etitio ners. The fifth exception is not applicable because law enforcement has certified that the investigation is “open and ongoing.” Lastly, the sixth exception is also not applicable as BMS has determined that payment suspension is in the best interest of the Medicaid program given that credible allegations of fraud exist as to P etitioners.22

suspension of Petitioner s’ Medicaid payments, BMS sent a second lette r, dated May 16,
2022 , to Petitioners . In the May 16, 2022 , letter, Petitioner s were specifically advised that BMS “ reviewed all good cause exceptions to payment suspension allowed by statute and determined none are applicable in this instance.”

Petitioner s , citing Alexandre v. Illinois Dep’t of Healthcare & Fam. Servs. , No. 20 C 6745, 2021 WL 4206792, at *9 (N.D.Ill. Sept. 15, 2021) (memorandum opinion and order) , argue that Holistic’s uninterrupted payment of earned funds under, and its continued participation in , the state’s Medicaid program constitute property in terests protected by the D ue P rocess clause of the West Virginia Constitution. The Due Process clause of the Fourteenth Amendment provides that “[n]o state shall . . . deprive any person of life, liberty or property without due process of law.” However, to establish a due process viola tion, a plaintiff must actually have been deprived of a liberty or property interest entitled to constitutional protections. See generally Paul v. Davis , 424 U.S. 693, 710

- 11 (1976).

In Alexandre , the United States District Court for the Northern Distri ct of Illinois found that a doctor had a due process right for prospective injunctive relief to challenge the suspension of her Medicaid payments for alleged fraud. In their briefs before this Court , Petitioner s contend that the instant case is analogous t o Alexandre . Like Dr. Alexandre, Petitioner s suggest that they lacked detail of the allegations against them to23

preclude a proper defense, which affected their due process. We disagree and find that the instant case is distinguishable from Alexandre for se veral reasons.

Dr. Alexandre’s case involved suspension of her Medicaid payments for up to three years (capped by an Illinois statute providing a maximum of three years suspension of Medicaid payments while investigation continues) and she was provided n o administrative hearing and was not provided with details of the particular billing irregularities supporting the suspension. Conversely, in the instant case, BMS suspended Petitioner s’ Medicaid payments on May 23, 2022, and, by November of 2023, BMS had filed a civil complaint against Petitioner s specifically detailing their particular billing irregularities and had provided detailed information related to the investigation to
Petitioner s.

Here, again unlike Alexandre , Petitioners exercised their oppor tunity to appeal the BMS’ suspension and were involved in an administrative appellate hearing related to their suspension in August of 2022, just four months following their suspension. Further, unlike Illinois in the Alexandre case, West Virginia does not have any statutes establishing a maximum time for suspension of Medicaid payments. With these distinctions we find Alexandre unpersuasive.

As to property rights , we find, with respect to payments for services already rendered, there is no property right implicated when the payments are the subject of a fraud24

investigation. See Pers. Care Prods. Inc. v . Hawkins , 635 F.3d 155 , 159 ( 5th C ir. 2011). Here, as Petition er s’ payments were subject to a fraud investigation, we find no property right implicated. Similarly, e ven if we were to assume that continued participation in the Medicaid program constitutes a property interest for providers, the parties herein cannot

es tablish that the y were not afforded due process. 19 Below, the parties were provided with significant information related to the “credible allegation of fraud” against them

. Petitioner s herein were able to pursue a DDR review and an administrative hearing , in which Petitioner s were provided the opportunity to state their case for BMS’ alleged arbitrary and capricious suspension of their Medicaid payments , to no avail.

Before moving on to Petitioner s’ second assignment of error, we want to
address the Indi vidual Petitioners ’ statement, at page seven of their brief, that “four of the five [ Individual Petitioners ] were not even employed by Holistic during the time of the billing noted in the” SIU Report of Investigation Case Summary . While this statement may be true (the record is unclear), the same is not “literally impossible” (as alleged by the

19 The Fourth Circuit recognizes a property interest in a provider’s expectation of continued participation in the federal healthcare programs such as Medicare and Medicaid

. See Ram v. Heckler , 792 F.2d 444 (4 th Cir. 1986). However, the majority of jurisdictions (the First, Second, Fifth, Sixth, Ninth and Tenth Federal Circuit Courts) do not recognize such a property right, as providers are not the intended beneficiaries of the medical programs. As to the determination of P etitioners’ property right for continued participation in the Medicaid program, we decline to address the same in this appeal as determination of this issue is not necessary to disposition of this appeal. Under the limited facts and circumstances of this case, even if we were to find that P etitioners had a property right in continued participation in the Medic aid program, we find that they were afforded sufficient and meaningful due process.25

Individual Petit ioners ) and such fact is not dispositive of this matter . Here, both MFCU and BMS found and referenced fraudulent billing charges made by four out of the five Petitioner s (excluding Sunshine Holstein) in its civil complaint filed in November of 2023. The SU I Report of Investigation Case Summary is but one of many sources relied upon by
MFCU and BMS. 20

Further, we must address Petitioner s ’ infer ence in their arguments that the suspension of their Medicaid payments was permanent in nature

. Such an assertion is simply not true. In the May 16, 2022, letter sent to Petitioner s, BMS expressly notes that the suspension is temporary in nature and “will end upon the determination that there is insufficient evidence of fraud, or on the completion of legal proceeding( s) related to the alleged fraud by” Petitioner s (the civil complaint filed by BMS against Petitioner s in November of 2023 )

. Moreover , we note that in 42 C.F.R. § 455.23(d)(3)(ii), it is required that “[o]n a quarterly basis, the State must request a certif ication from the [MFCU] or other law enforcement agency that any matter accepted on the basis of referral continues to be under investigation thus warranting continued suspension.” BMS is not permitted to permanently suspend a provider’s Medicaid payments, without the check of certification of a continued investigation. Here, under the facts and circumstances of this case, w e find

20 In the civil complaint against P etitioners, BMS alleges as follows: Samantha Burgess’ fraud occurred in late October of 2020; George Grover’s fraud occurred on early Nov ember of 2020 and December of 2021; Alyssa Skeens fraud occurred between March 13, 2020, and November 5, 2020; and Jessica Halstead’s fraud occurred between of August 29, 2018, and October 6, 2020.26

the same sufficient to protect the interests of Petitioner s from unlimited permanent suspension of payments.

Also, in reviewing the claims at issue, we do not agree that Holistic had little or no information regarding the allegations of fraud against it. The record reflects that Shawn Blankenship, the president of Holistic, was aware of SIU’s investigation into
H olistic and its individual providers’ billing practices in at least September of 2018

. Mr. Blankenship participated in an interview with an SIU investigator and was ask ed pointed questions about the allegations of fraud at issue herein.

In addressing this assignment of error, i t is the duty of this Court to consider the total implications of BMS’ decisions, including implication on those who are served by the Medicaid program. We must temper the rights of those suspended with Medicaid’s

stat ed intent to decrease fraud rampant within the program. See West Virginia Code § 9

- 7

- 1 (Legislature notation of substantial sums of money having been lost due to overpayment of moneys to medical providers through abuse and fraud of reimbursement process). As Petitioner s did not substantiate their argument that BMS was arbitrary and capricious in suspending Petitioner s’ Medicaid payments upon a credible allegation of fraud , we find no

error.

In its second assignment of error, Petitioner s argue that BMS act ed arbitrarily and capriciously in failing to provide “adequate specific detail of the allegations in its pre

-27

suspension notices” to Petitioner s. We again turn to 42 C.F.R. § 455.23(b)(2) for a description of what notices of suspension of Medicaid payments must include. Per this provision, the notice must include or address all of the following:

(i) State that payments are being suspended in accordance with this provision. (ii) Set forth the general allegations as to the nature of the suspension action, but need no t disclose any specific information concerning an ongoing investigation. (iii) State that the suspension is for a temporary period . . . and cite the circumstances under which the suspension will be terminated. (iv) Specify, when applicable, to which type or types of Medicaid claim s or business units of a provider suspension is effective. (v) Inform the provider of the right to submit written evidence for consideration by State Medicaid Agency. (vi) Set forth the appliable State administrative appeals process and correspo nding citations to State law.

Here, based on our review, we find that the May 16, 2022, suspension letter

to Petitioner s meets each of the six requirements of a notice of suspension of Medicaid payments. The May 16, 2022, letter identifie s that payments are being suspended in conjunction by 42 C.F.R. § 455.23(c)(1) providing a general description of the allegations as an investigation of a credible allegation of fraud and concerning allegations of knowingly billing for services never render ed. Further, the May 16, 2022, letter advise s that the suspension is temporary and will end upon determination of insufficient evidence of fraud or the completion of a legal proceeding (s) related to alleged fraud. Lastly, the May 16, 2022, letter contains information regarding which type of Medicaid payments are being suspended (Medicaid payments in whole) and provides information regarding the28

administrative appeals process and the ability to submit written evidence to the State Medicaid Agency.

With adh erence to the explicit requirements of 42 C.F.R. § 455.23(c)(1) completed by BMS in its May 16, 2022, letter, we find allegations set forth in this letter sufficient to put Holistic on notice. Further, we note that since this May 16, 2022, letter, Petition er s have received additional information from BMS including the SIU Report of Investigation Case Summary (identifying particular CPT codes and identifying improper billing procedures), a FBI search warrant application which specifically identifies the inst ances of Medicaid fraud perpetrated by Petitioner s, and a civil Complaint that has been filed against Petitioner s (excluding Sunshine Holstein) that details each allegation of fraud against each of the Petitioner s (again, excluding Sunshine Holstein) . Acco rdingly, we find

no error.

We further note the decision of the Court of Appeals of Mississippi in NSCH Rural Health Clinic v. Snyder , 321 So.3d 565 (2020), in which that c ourt found that a notice of suspension of medical payments including only general a llegations and no specific allegations concerning the ongoing investigation was sufficient under 42 C.F.R. § 455.23(b). The Snyder court recognized, as this Court does, that to find otherwise would potentially undermine the ongoing criminal investigation a gainst the provider.29 IV. CONCLUSION For the foregoing reasons, we affirm BMS’ December 7, 2022, decision, and remand this matter for further proceedings only as it pertains to the lifting of the suspension of Medicaid payments of Sunshine Holstein.

Af f irmed , in part , and r emanded , in part, with instructions

.