MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                               FILED
regarded as precedent or cited before any                                    Feb 10 2020, 10:44 am
court except for the purpose of establishing
the defense of res judicata, collateral                                             CLERK
                                                                              Indiana Supreme Court
                                                                                 Court of Appeals
estoppel, or the law of the case.                                                  and Tax Court




ATTORNEYS FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Norris Cunningham                                        Curtis T. Hill, Jr.
Kathryn Elias Cordell                                    Attorney General of Indiana
Katz Korin Cunningham PC
                                                         Benjamin M. L. Jones
Indianapolis, Indiana                                    Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Golden Gate National Senior                              February 10, 2020
Care, LLC d/b/a Golden Living,                           Court of Appeals Case No.
Appellant-Petitioner,                                    19A-PL-1269
                                                         Appeal from the Marion Superior
        v.                                               Court
                                                         The Honorable Cynthia J. Ayers,
Indiana Family and Social                                Judge
Services Administration,                                 Trial Court Cause No.
Appellee-Respondent.                                     49D04-1802-PL-5532




Bailey, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-PL-1269 | February 10, 2020                 Page 1 of 19
                                            Case Summary
[1]   Golden Gate National Senior Care, LLC d/b/a Golden Living (“Golden”)

      submitted Nursing Facility Financial Reports (to be used in accordance with

      405 IAC 1-14.6)1 to the Office of Medicaid Policy and Planning (“OMPP”), a

      division of the Indiana Family and Social Services Administration (“FSSA”).

      After OMPP auditors made changes to the entries ultimately reducing

      reimbursement, Golden pursued an administrative appeal of the revisions. An

      Administrative Law Judge (“ALJ”) denied Golden relief; a designee of ultimate

      authority for the FSSA adopted the ALJ decision without modification; Golden

      petitioned the Marion County Superior Court for judicial review; the trial court

      upheld the agency decision; and Golden now appeals. We affirm.



                                                      Issues
[2]   Golden presents two issues for review:


               I.       Whether Golden was denied due process in the hearing
                        before the ALJ; and


               II.      Whether the order on petition for judicial review is
                        contrary to law.




      1
       This section of the Indiana Administrative Code sets forth payment procedures and rate setting criteria for
      nursing facilities.

      Court of Appeals of Indiana | Memorandum Decision 19A-PL-1269 | February 10, 2020                Page 2 of 19
                              Facts and Procedural History
[3]   Golden owns and operates multiple long-term care facilities throughout the

      State of Indiana. As an authorized provider of Medicaid-covered services,

      Golden is required to submit for each facility and year of operation a form titled

      Nursing Facility Financial Report. The forms are to be used in accordance with

      the provisions of 405 IAC 1-14.6 and an instruction booklet is provided to

      promote compliance. The reports are audited by Myers & Stauffer, accountants

      contracted by the OMPP (“Auditors”). This case involves disputes between the

      care provider and Auditors as to proper categorization of cost items reported on

      the forms for rate years 2011 and 2014.


[4]   When the Auditors reviewed Golden’s cost reports for those years, they

      determined that certain items on twenty-two reports should be reclassified or

      disallowed. Specifically, costs reported as direct care costs incurred by 360

      Healthcare and Clinical Services, two entities related to Golden,2 were

      reclassified as if they had been incurred directly by Golden (by placement into

      subcategories of capital, plant operations, and administration). A software-

      related item was moved from amortization of a capitalized cost to a category

      for depreciation of building and fixtures. Reported costs for software

      maintenance and software license fees were moved from a “repairs and




      2
        Pursuant to IAC 1-14.6-2(ff), a party is a related party when the provider is associated or affiliated with or
      has the ability to control or be controlled by the organization furnishing the service, facilities, or supplies,
      regardless of whether control is actually exercised.

      Court of Appeals of Indiana | Memorandum Decision 19A-PL-1269 | February 10, 2020                    Page 3 of 19
      maintenance” category to “other administrative costs.” Appealed Order at 2.

      A reported cost for medical equipment rental was moved from a “direct care”

      category to an “equipment lease/rent” category. Id. The changes ultimately

      resulted in a reduced reimbursement to Golden, estimated to be approximately

      one million dollars.


[5]   Golden asked for reconsideration from the Auditors, but on July 16, 2013, the

      Auditors issued a reconsideration response letter without making any further

      adjustment. On September 13, 2013, Golden filed a Petition for Review and

      Request for Hearing with the OMPP. Golden articulated five issues for review,

      specifically, whether the Auditors improperly reclassified: (1) expenses reported

      as direct care costs of Clinical Services for clinical and dietary consulting

      services; (2) expenses reported as direct care costs of 360 Healthcare, a

      temporary staffing agency; (3) software development amortization, reported as

      a capital component; (4) software maintenance; and (5) costs for durable

      medical equipment. Golden alleged that the Auditors failed to identify

      applicable administrative rules justifying their changes.


[6]   The ALJ conducted a telephonic appeal hearing on September 7, 2016. Golden

      presented two witnesses to explain the bases for Golden’s reporting and OMPP

      presented the testimony of an accountant. Golden conceded that 360

      Healthcare and Clinical Services Argument were entities related to Golden but

      argued that the reported costs reflected no profit margin and there were no

      inflated costs.



      Court of Appeals of Indiana | Memorandum Decision 19A-PL-1269 | February 10, 2020   Page 4 of 19
[7]   As for the treatment of software costs, Golden argued that the Auditors’

      decisions lacked specificity and were not supported by appropriate authority.

      By the time of the hearing, OMPP had issued a bulletin changing its position on

      treatment of durable medical equipment. Prospectively, OMPP allowed

      specified rental equipment to be included as a direct care cost. To provide some

      retroactive relief, OMPP had created a settlement pool; however, claimants

      were able to claim additional compensation retroactive only to October 1, 2011.

      Golden argued that reimbursement should have been retroactive to July 1,

      2011, the beginning of the administrative agency fiscal year.


[8]   OMPP’s witness conceded that former auditors may have treated certain items

      differently, and that the Auditors made some changes in light of revised

      research. However, he maintained that the Auditors attempted to discern the

      most appropriate category and all providers were treated uniformly. As for

      durable medical equipment reimbursement, OMPP took the position that it was

      not required by law to utilize the fiscal year start preferred by Golden.


[9]   On September 28, 2016, the ALJ issued a ruling denying Golden relief. In

      relevant part, the findings and conclusions thereon provide:


                                                  [Findings]


              I find that Clinical and 360 are related companies to Golden
              Living.




      Court of Appeals of Indiana | Memorandum Decision 19A-PL-1269 | February 10, 2020   Page 5 of 19
        I find that as related companies the costs incurred relative to
        Clinical and 360 must be reported in the same way as if the costs
        had been incurred by Golden Living itself.


        Golden Living is required to report its costs on the specific lines
        relative to those costs, i.e. benefit, capital, plant and
        administration and not to simply lump its costs together as
        services provided. Therefore, the costs from Clinical and 360
        were also required to be broken down into benefit, capital, plant
        and administration.


        I find that the decision by M & S to reclassify software
        depreciation costs from other capital expenses (line 377) to
        depreciation building and fixtures (line 362) must be broken
        down into two issues: was it correct to reclassify the software
        amortization costs from line 377; and was it correct to reclassify
        those costs to line 362.


        I find that insufficient evidence was presented by either party to
        convince me of the proper categorization of the software
        amortization costs. I find that M & S was correct in reclassifying
        the costs from line 377 because intangible software costs cannot
        logically be considered a capital expense.


        I find that M & S was incorrect in reclassifying the costs to line
        362 because software development costs involve an intangible
        item that, unless it controls the HVAC or security of the plant, is
        clearly not a fixture or facility cost.


        I find that some distinction can be made between software
        support and software maintenance. Support is generally
        understood to include the provision of expertise in operating the
        existing software, whereas software maintenance is generally
        considered to include the modification of the core software to
        change or improve it.

Court of Appeals of Indiana | Memorandum Decision 19A-PL-1269 | February 10, 2020   Page 6 of 19
        I find that the distinctions described above do not rise to the level
        of separating support and maintenance into two utterly different
        sorts of endeavor. The position taken by Petitioner that they are
        two completely different types of endeavor that should be
        report[ed] on different lines in the cost report is not supported by
        the evidence. M & S acted reasonably in reclassifying those costs
        to line 353.


        I find that the decision to provide additional reimbursement
        related to the rental costs for low air loss mattresses, pressure
        support surfaces and oxygen concentrators was a change in
        Medicaid policy, not a correction of a previously incorrect policy.
        Therefore, OMPP’s decision to wait for confirmed authorization
        from CMS to provide such reimbursements, thereby causing the
        reimbursements to be retroactive to October 1, 2011 rather than
        July 1, 2011, was reasonable.


                                CONCLUSIONS OF LAW


        Issue 1 – Reclassification of fees for Clinical and 360


        1. Pursuant to 405 IAC 1-14.6-11(a), costs applicable to services
           provided by a related organization must be included in the
           allowable cost in the unit of service of the provider at the cost to the
           related organization.


        2. Clinical and 360 are organizations related to Golden Living
           through mutual ownership.


        3. To the same extent that Golden Living could not simply state
           a cost as “services performed,” neither can Clinical or 360. M
           & S was correct in reclassifying the costs for the services
           performed by Clinical and 360 into separate classifications for
           benefit, capital, plant and administration.

Court of Appeals of Indiana | Memorandum Decision 19A-PL-1269 | February 10, 2020   Page 7 of 19
        Issue 2 – Reclassification of software development amortization


        4. There is no clear-cut cost line for the costs related to the
           amortization of the expenses in development of software.
           Any of several could be used.


        5. Pursuant to IC 4-21.5-3-14(c), the agency or other person
           requesting that an agency take action or asserting an
           affirmative defense specified by law has the burden of
           persuasion and the burden of going forward with the proof of
           the request or affirmative defense.


        6. Petitioner has failed to provide sufficient evidence that
           reporting the software development costs on Line 377 – other
           capital expenses, is any more appropriate than reporting it on
           Line 362 – maintenance of facility and fixtures.


        Issue 3 – Determination that Software Maintenance and Support
        are one item and reclassifying that item as an administrative cost


        7. Petitioner’s argument that software maintenance and software
           support are clearly understood to be distinctly different
           services is not supported by the evidence. While some have
           differentiated them by saying that support is the provision of
           assistance in navigating the processes of an existing software
           installation, while maintenance is the provision of technical
           services to modify, correct or update a software installation,
           this is not a definition universally accepted. Petitioner has
           failed to carry the burden of proof here.


        8. There is evidence that what Petitioner labels as support and as
           maintenance can both be classified as aspects of the more
           generic definition of software support.



Court of Appeals of Indiana | Memorandum Decision 19A-PL-1269 | February 10, 2020   Page 8 of 19
               9. Petitioner has also failed to carry the burden of proof that
                  classification of software support (including the maintenance
                  aspect of support) as a facility maintenance item is clearly
                  correct, but that M & S’s classification as an administrative
                  expense is not.


               Issue 4 – Determination to provide increased reimbursement for
               certain durable medical equipment retroactive to July 1, 2011
               rather than October 1, 2011


               10. The determination to increase reimbursement for certain
                   items of durable medical equipment was an amendment to
                   Medicaid policy, not a correction to a prior incorrect policy.


               11. OMPP was under no obligation to set the date for
                   (retroactive) reimbursement to begin at any particular date. It
                   was within its authority to wait for concurrence from CMS
                   and set the date for reimbursement at the higher rate at
                   October 1, 2011.


       (App. Vol. II, pgs. 28-30.) Ultimately, the ALJ was not convinced that “the

       Agency [actions] were improper or incorrect.” Id. at 30. On January 12, 2018,

       the Designee of the Ultimate Authority for the FSSA entered the final agency

       order, affirming the ALJ findings and conclusions without modification.


[10]   Golden filed a petition for judicial review and, on March 14, 2019, the parties

       appeared for a hearing in the Marion Superior Court. Golden argued that the

       final FSSA order was arbitrary, capricious, an abuse of discretion, or otherwise

       not in accordance with law “because it conflicts with its own regulations, its

       own provisions and its longstanding practice.” (Tr. at 7.) FSSA defended its


       Court of Appeals of Indiana | Memorandum Decision 19A-PL-1269 | February 10, 2020   Page 9 of 19
       final decision, arguing that reclassifications made by the OMPP auditors were

       reasonable, notwithstanding divergence from practices of past auditors.


[11]   On May 9, 2019, the trial court issued its Order on Petition for Judicial Review.

       The trial court concluded that Golden had shown no violation of law in the

       expense classifications imposed by the Auditors and that “FSSA was under no

       legal requirement to extend the retroactive period [for durable medical

       equipment] to July 1, 2011.” Appealed Order at 5. Golden now appeals.



                                   Discussion and Decision
                                         Standard of Review
[12]   The applicable standard of review is well-settled:


               We review an administrative action using the guideposts set forth
               in Indiana’s Administrative Orders and Procedures Act, under
               which we may set aside an agency’s action if it is: “(1) arbitrary,
               capricious, an abuse of discretion, or otherwise not in accordance
               with law; (2) contrary to constitutional right, power, privilege, or
               immunity; (3) in excess of statutory jurisdiction, authority, or
               limitations, or short of statutory right; (4) without observance of
               procedure required by law; or (5) unsupported by substantial
               evidence.” Ind. Code § 4-21.5-5-14(d).


               A party seeking judicial review bears the burden of proving the
               agency action is invalid for one of the above reasons. Ind. Code
               § 4-21.5-5-14(a). “Our review of agency action is intentionally
               limited, as we recognize an agency has expertise in its field and
               the public relies on its authority to govern in that area.” West v.
               Office of Indiana Sec’y of State, 54 N.E.3d 349, 352-53 (Ind. 2016)
               (citing Ind. Wholesale Wine & Liquor Co. v. State ex rel. Ind. Alcoholic
       Court of Appeals of Indiana | Memorandum Decision 19A-PL-1269 | February 10, 2020   Page 10 of 19
               Beverage Comm’n, 695 N.E.2d 99, 105 (Ind. 1998)). When
               reviewing a challenge to an administrative agency’s decision, we
               will not try the facts de novo, nor substitute our own judgment for
               that of the agency. Jay Classroom Teachers Ass’n v. Jay Sch. Corp.,
               55 N.E.3d 813, 816 (Ind. 2016) (internal citations and quotations
               omitted). Rather, we defer to the agency’s findings if they are
               supported by substantial evidence. Id. (citing Ind. Dep’t of Envtl.
               Mgmt. v. West, 838 N.E.2d 408, 415 (Ind. 2005)). On the other
               hand, an agency’s conclusions of law are ordinarily reviewed de
               novo. Id. (citing Nat. Res. Def. Council v. Poet Biorefining – N.
               Manchester, LLC, 15 N.E.3d 555, 561 (Ind. 2014)).


       Ind. Alcohol and Tobacco v. Spirited Sales, 79 N.E.3d 371, 375 (Ind. 2017). “The

       action of an administrative agency is arbitrary and capricious only where there

       is no reasonable basis for that action.” Bd. of Trustees of Public Employees

       Retirement Fund v. Baughman, 450 N.E.2d 95, 97 (Ind. Ct. App. 1983).


                                     Procedural Due Process
[13]   Golden argues that it was denied procedural due process at the ALJ hearing, in

       particular, that Golden was deprived of the opportunity to question one or more

       persons with whom the sole OMPP witness conferred during his testimony.

       “While wide latitude is allowed an administrative body in the conduct of its

       hearings, due process of law must be accorded to those whose rights are

       affected.” Ladd v. Rev. Bd., 150 Ind. App. 632, 637, 276 N.E.2d 871, 873

       (1971).


[14]   The OMPP responds that Golden acquiesced to the manner in which the ALJ

       proceedings were conducted and raised no due process challenge in the


       Court of Appeals of Indiana | Memorandum Decision 19A-PL-1269 | February 10, 2020   Page 11 of 19
       administrative or trial court proceedings. “In order to properly preserve an

       issue on appeal, a party must, at a minimum, show that it gave the trial court a

       bona fide opportunity to pass upon the merits of the claim before seeking an

       opinion on appeal.” Endres v. Ind. State Police, 809 N.E.2d 320, 322 (Ind. 2004).


[15]   At the September 7, 2016 telephonic hearing, the OMPP called as its witness

       Adam Langford, CPA (“Langford”). During Langford’s testimony, the

       following exchange took place between the ALJ and Golden’s counsel:


               Judge: I just wanted to let you know, several people from Myers
               and Stauffer are here, and sometimes they confer before Mr.
               Langford answers. Whether that makes any difference in the
               world, I just want you to know that’s gone on.


               Counsel: Well, I appreciate that, Your Honor, and I’m going to
               ask, sir, that if whoever provides that information to Mr.
               Langford, I’ll ask that information – that I be allowed to question
               them as well.


               Judge: Well, they’re just conferring.


               Counsel: Okay.


               Judge: The person is not testifying, they’re just – I just – I’m not
               sure about that, no, but I did want you to know that. You know,
               Mr. Langford is the one stating this for the record.


               Counsel: Okay.




       Court of Appeals of Indiana | Memorandum Decision 19A-PL-1269 | February 10, 2020   Page 12 of 19
               Judge: But regardless of whether that’s important, I don’t think
               it’s up to me to decide whether it’s important that they’re
               conferring. I wanted you to know.


               Counsel: I appreciate that, sir.


       (App. Vol. III, pgs. 76-77.) Thereafter, no additional witnesses were called, and

       the matter was not addressed again. Arguably, counsel’s response to learning

       of Langford’s conferring with colleagues could be construed as a request for

       additional witnesses. Arguably, the ALJ’s language – vacillating from “not

       sure” to “no” – could be construed as a denial. But even assuming the ALJ

       affirmatively denied a request from Golden for additional witnesses, Golden

       did not question Langford as to the nature or substance of the conferences.

       Golden made no offer of proof. Simply, Golden did not develop a record from

       which the trial court or this Court could discern any harm to Golden. See, e.g.,

       Ladd, 150 Ind. App. at 637, 276 N.E.2d at 874 (observing that, had a claimant

       not been permitted to answer questions on availability for employment, a

       central issue in the matter, “a denial of due process would have occurred,” but

       the record must substantiate more than a “naked allegation.”)


                                     OMPP Reimbursements
[16]   Golden contends that “OMPP’s reclassification was fundamentally

       unsupported by the statutory authority cited by OMPP” and thus the FSSA

       decision allowing the reclassification was arbitrary, capricious, and not in

       accordance with law. Appellant’s Brief at 9. Golden’s attack is two-pronged;

       according to Golden, Auditors should not deviate from practices or
       Court of Appeals of Indiana | Memorandum Decision 19A-PL-1269 | February 10, 2020   Page 13 of 19
       interpretations of prior auditors upon which a provider has relied and Auditors

       should not deviate from an initial and specific citation to legal authority used to

       justify a reclassification.


[17]   Golden first addresses the change made as to “related parties” and claims that

       “OMPP unreasonably interpreted the definition of related parties and how the

       related parties were to be treated in determining Medicaid reimbursement.” Id.

       at 14. Golden reiterates that prior auditors accepted reporting of costs for

       Clinical Services and 360 Healthcare as direct care costs and argues that “the

       testimony shows that the reclassifications performed by [Auditors] were in

       direct conflict with OMPP’s prior treatment of related parties.” Id. at 15.

       Golden observes that Auditors first identified a regulation pertaining to

       management consulting agreements, but later admitted that costs for Clinical

       Services and 360 Healthcare were not incurred as part of a management

       consulting agreement, looked at regulations in more detail, and “began to rely

       upon [US Centers for Medicare & Medicaid Services] CMS Publication 15-1 §

       1005.” Id. at 17. According to Golden, “the litany of the changes in the basis

       of reclassification” show the “arbitrariness and capriciousness of the agency

       decision.” Id.


[18]   Langford testified that the CMS publication addressed related party

       applications with more specificity than did the Indiana Administrative Code.

       At that time, Section 1005 of CMS Publication 15-1 provided:


               The related organization’s costs include all reasonable costs,
               direct and indirect, incurred in the furnishing of services,
       Court of Appeals of Indiana | Memorandum Decision 19A-PL-1269 | February 10, 2020   Page 14 of 19
                facilities, and supplies to the provider. The intent is to treat the
                costs incurred by the supplier as if they were incurred by the
                provider itself. Therefore, if a cost would be unallowable if
                incurred by the provider itself, it would be similarly unallowable
                to the related organization. The principles of reimbursement of
                provider costs described elsewhere in this manual will generally
                be followed in determining the reasonableness and allow ability
                of the related organization’s costs, except where application of a
                principle in a nonprovider entity would be clearly inappropriate.


[19]   Golden does not deny the applicability of the provision or challenge the factual

       determination that Clinical Services and 360 Healthcare were “related parties”

       to Golden. Rather, Golden faults Auditors’ late discovery of the provision

       (allegedly only in response to Golden’s persistent questions) and the “reliance

       upon a single line” (the language addressing intent). Appellant’s Brief at 18.


[20]   Apparently, past auditors did not question Golden’s reporting of some related

       party costs as direct care costs. Golden also points to the testimony of its

       witness that, although Golden reported related party costs as direct costs, there

       was no profit included and no artificially inflated costs.3 Golden assumes that

       the fact-finder was obliged to credit the testimony of its witness as to inclusion

       of profit. At bottom, Golden’s arguments fail to comport with the standard of




       3
         Golden asserted that it had complied with CMS Publication 15-1 § 1000, providing: “Costs applicable to
       services, facilities, and supplies furnished to the provider by organizations related to the provider by common
       ownership or control are includable in the allowable cost of the provider at the cost to the related
       organization. However, such cost must not exceed the price of comparable services, facilities, or supplies
       that could be purchased elsewhere. The purpose of this principle is two-fold: (1) to avoid the payment of a
       profit factor to the provider through the related organization (whether related by common ownership or
       control), and (2) to avoid payment of artificially inflated costs which may be generated from less than arm’s-
       length bargaining.”

       Court of Appeals of Indiana | Memorandum Decision 19A-PL-1269 | February 10, 2020                 Page 15 of 19
       review. Golden had to support its allegations that an agency action was not in

       accordance with law or was arbitrary or capricious. The agency did not have to

       demonstrate to the trial court that its action was in conformity with prior

       auditors’ practices or based solely upon its initial legal research.


[21]   Rather, a review concerns reasonableness of agency interpretation. Appellate

       review of an agency action is intentionally limited, in recognition that an

       agency has expertise in its field and the public relies on its authority to govern

       in that area. Moriarity v. Ind. Dep’t of Nat. Resources, 113 N.E.3d 614, 619 (Ind.

       2019). The Moriarity Court reiterated, “In fact, if the agency’s interpretation is

       reasonable, we stop our analysis and need not move forward with any other

       proposed interpretation.” Id. (citation omitted). Such is the case here, where

       costs of related party suppliers were to be reported as if incurred by the

       provider.


[22]   Similarly, with respect to the treatment of amortization of purchased software

       and the allocation of software support and maintenance costs, the ultimate

       agency interpretation need only be a reasonable one. Golden reported software

       amortization as if it were the amortization of a capital investment item. The

       Auditors disagreed with this selection, and initially identified a category for

       depreciation of fixtures and facilities as more appropriate. In light of the

       testimony that this was also not a perfect-fit category, Golden argues that the

       Auditors should be bound to accept Golden’s categorization. Too, Golden

       insists that the OMPP classifications pertaining to software were inadequate,

       and software support must be categorized separately from software

       Court of Appeals of Indiana | Memorandum Decision 19A-PL-1269 | February 10, 2020   Page 16 of 19
       maintenance, such that only some of the costs are considered administrative

       costs.4 Golden essentially asked the ALJ, the trial court, and now this Court to

       determine the best accounting practices.


[23]   Neither the mandatory form nor accompanying instructions, however lengthy,

       would likely include a precise designation for each and every type of expense

       incurred in the operation of a nursing facility. Predictably, there could be some

       room for disagreement among accounting professionals when selection

       decisions must be made. But administrative review does not necessarily

       achieve perfection in reporting standards where there can be some disagreement

       among accounting professionals. The ALJ said as much when he discussed the

       lack of an obvious fit for software amortization costs and the lumping together

       of similar, but not identical, costs related to functionality of the software. One

       certified public accountant testified; no other individual was presented as an

       accounting expert witness. Notwithstanding Golden’s quest for added

       specificity, Golden has not persuaded us that the agency interpretation was

       unreasonable or that there was an action taken contrary to law.


[24]   Golden’s final contention is that, when the OMPP discovered error in the rate

       of reimbursement for durable medical equipment, it should have taken remedial




       4
        Administrative costs are not reimbursed at the same rate as direct care costs. In 2013, the Medicaid form
       was revised to include an option to separate direct care software costs from administrative software costs.

       Court of Appeals of Indiana | Memorandum Decision 19A-PL-1269 | February 10, 2020               Page 17 of 19
       measures retroactive to July 1, 2011 as opposed to October 1, 2011, and its

       failure to do so is contrary to law.


[25]   Golden employee Pamela Orsini (“Orsini”) testified that the FSSA issued “a

       bulletin addressing [Durable Medical Expenses] and changes of the facility

       reimbursement rules because there’s been a lot of pushback from the provider

       community.” (App. Vol. III, pg. 39.) The bulletin advised that, effective

       October 1, 2011, OMPP would add seventy-five cents per day to the Medicaid

       rate and the equipment cost would be a direct cost no longer reimbursed as part

       of a fair rental rate.5 Orsini considered the bulletin to constitute an agency

       admission that error had caused past inadequate reimbursement and she

       deemed the settlement pool – allowing for claims effective October 1, 2011 – to

       be an inadequate recompense for the error. According to Orsini, “if [the

       agency] is not wrong, why is there reimbursement all of a sudden after provider

       pushback?” Id. at 46. The OMPP took the position that there had merely been

       a change in reimbursement policy, and it was under no legal obligation to allow

       settlement pool claims at an earlier date.


[26]   Again, we regard the agency interpretation of its obligation as reasonable.

       Although Golden suggests that a lack of agency diligence caused undue delay

       in getting changes approved by the Center for Medicare and Medicaid and the




       5
           Effective July 1, 2012, the reimbursement rate was raised to $1.50 per day.


       Court of Appeals of Indiana | Memorandum Decision 19A-PL-1269 | February 10, 2020   Page 18 of 19
       establishment of the settlement, Golden points to no legal authority requiring

       the OMPP to provide for reimbursement as of the date requested by Golden.



                                               Conclusion
[27]   The reviewing court’s decision affirming the final order of the FSSA is not

       contrary to law.


[28]   Affirmed.


       Kirsch, J., and Mathias, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-PL-1269 | February 10, 2020   Page 19 of 19
