              IN THE SUPREME COURT OF MISSISSIPPI

                       NO. 2018-SA-01263-SCT

MISSISSIPPI DIVISION OF MEDICAID AND
DREW SNYDER, IN HIS OFFICIAL CAPACITY
AS DIRECTOR OF MISSISSIPPI DIVISION OF
MEDICAID

v.

WINDSOR PLACE NURSING CENTER, INC. d/b/a
WINDSOR PLACE NURSING & REHAB CENTER,
BILLDORA SENIOR CARE, LLC, LEXINGTON
MANOR SENIOR CARE, LLC AND MAGNOLIA
SENIOR CARE, LLC


DATE OF JUDGMENT:              08/06/2018
TRIAL JUDGE:                   HON. PATRICIA D. WISE
TRIAL COURT ATTORNEYS:         RANDALL ELLIOTT DAY, III
                               JANET McMURTRAY
                               DION JEFFERY SHANLEY
                               JULIE BOWMAN MITCHELL
                               PHILIP JOSEPH CHAPMAN
                               STEPHEN DEAN STAMBOULIEH
                               CHARLES PALMER QUARTERMAN
                               ABBIE EASON KOONCE
                               GEORGE H. RITTER
                               P. SCOTT PHILLIPS
COURT FROM WHICH APPEALED:     HINDS COUNTY CHANCERY COURT
ATTORNEYS FOR APPELLANTS:      OFFICE OF THE ATTORNEY GENERAL
                               BY: LAURA L. GIBBES
                               JANET McMURTRAY
                               SAMUEL PHILIP GOFF
                                T. HUNT COLE, JR.
                                DION JEFFERY SHANLEY
ATTORNEYS FOR APPELLEES:       RANDALL ELLIOTT DAY, III
                               JULIE BOWMAN MITCHELL
                               ELLEN PATTON ROBB
                               PHILIP JOSEPH CHAPMAN
NATURE OF THE CASE:            CIVIL - STATE BOARDS AND AGENCIES
DISPOSITION:                                 REVERSED AND RENDERED - 05/14/2020
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

       BEFORE RANDOLPH, C.J., MAXWELL AND BEAM, JJ.

       BEAM, JUSTICE, FOR THE COURT:

¶1.    The Mississippi Division of Medicaid (DOM) appeals the Hinds County Chancery

Court’s judgment ordering the DOM to reverse the adjustments for “Legend Drug”1 costs

reported by Windsor Place Nursing Center, Inc., d/b/a Windsor Place Nursing & Rehab

Center (Windsor) and Billdora Senior Care, Lexington Manor Senior Care, and Magnolia

Senior Care (collectively Senior Care).2 The chancery court found that the legend drug

expenses incurred by these providers were properly reported on each of their Long Term

Care (LTC) cost reports as an allowable cost and should have been taken into account the by

DOM in determining the per diem rates for each provider.

¶2.    The DOM contends that its decision to disallow the legend drug expenses claimed by

the providers in their required cost report for reporting years 2005, 2007, and 2008 was

supported by substantial evidence, was not arbitrary or capricious, and was within its




       1
          Legend drugs are drugs that require a prescription from a duly-authorized
practitioner. Miss. Code Ann. 73-21-73(gg) (Supp. 2019). This opinion uses the terms
interchangeably.
       2
         Referred to collectively as the “providers.” By order dated August 28, 2017, in
chancery court, the appeals asserted in that court by five additional facilities (all consolidated
with this case and referred to as “Vanguard”) were stayed pursuant to the automatic stay
provisions of the United States Bankruptcy Code. An agreed order was entered by the
chancery court lifting the stay for Windsor and Senior Care.

                                                2
authority to decide. Therefore, the chancery court’s order must be reversed and the DOM’s

decision must be reinstated. We agree with the DOM.

                      FACTS AND PROCEDURAL HISTORY

¶3.   In 2008, the DOM contracted Clifton Gunderson, LLP (Gunderson), an independent

audit/accounting firm to perform audit reviews of LTC annual cost reports submitted by LTC

providers. Gunderson informed the DOM that certain providers were claiming legend drug

costs on their cost reports for per diem reimbursement.

¶4.   Following a “desk review process,” the DOM adjusted the cost reports filed by

Windsor for 2005, 2007, and 2008 and the cost reports filed by Senior Care in 2007. The

DOM adjustments disallowed the prescription-drug costs that Windsor and Senior Care had

claimed they incurred in providing resident care.         As stipulated by the parties, the

prescription-drug-adjustment-dollar amounts for Windsor and Senior Care costs were as

follows:

             1.     Windsor 2005 ($177,446); 2007 ($249,810);
                    2008 ($241,997)

             2.     Senior Care: Billdora 2007 ($31,238);

             3.     Magnolia 2007 ($11,003);

             4.     Lexington Manor 2007 ($19,369).

¶5.   Following these adjustments, the DOM sought to recoup the amounts from Windsor

and Senior Care that, according to DOM, were “overcharged initially by virtue of the

provider’s interpretation of the cost reporting requirements.” The providers filed an

administrative appeal of these adjustments.


                                              3
¶6.    They claimed that the plain language of the Medicaid State Plan and the applicable

cost report instructions require that all prescription drug costs “not covered by the Medicaid

Drug Program (i.e., not paid for by Medicaid)” are an allowable cost. They argued that such

costs were incurred by the providers as a necessary expense in caring for the residents and

that their interpretation of the state plan and cost report instructions as applied to the costs

reports at issue was correct and consistent with the DOM’s practice.

¶7.    Following multiple administrative hearings, two separate Medicaid hearing officers

issued factual findings and legal conclusions that the DOM had correctly disallowed the

prescription drug costs. The DOM said that the only prescription drugs that could be claimed

as an allowable cost on a provider’s cost report were those drugs “not covered” by Medicaid.

¶8.    In summary, both hearing officers found that: (1) the prescription drugs that are

“covered” by Medicaid are listed in a formulary; (2) Medicaid reimbursement for the costs

of prescription drugs on the formulary is to be made directly to dispensing pharmacists under

a computer point-of-sale program - not by the inclusion of any such claimed expenses on a

per diem cost report; (3) the Medicaid State Plan provides that the amount paid for any item

which is “subject to direct reimbursement” is a non-allowable cost; (4) Provider Policy

Manual (PPM) section 36.07 (2/04) provides that services that could be billed directly to

Medicaid, which include lab services, x-rays, and drugs covered by the Medicaid drug

program, are non-allowable costs; (5) PPM section 31.07 (2/04) defines the drug costs that

could be allowed on an LTC per diem cost report as mostly over-the-counter drugs; (6) the

LTC Cost Report Instructions (3/05) in effect at all relevant times for the 2005, 2007, and



                                               4
2008 reporting years advised that only the cost of drugs “not covered by the Medicaid Drug

Program” could properly be claimed; (7) the amended cost report instructions that became

effective in May 2009 were not a substantive change to previous instructions or policy and

were not applied retroactively by the DOM to the subject cost reports and actually were not

applied at all; and (8) the DOM is permitted to correct errors in LTC cost reports and to make

appropriate adjustments for overcharges and doing so is not a change in rate methodology.

¶9.    The executive director of the DOM adopted the findings, report, and

recommendations of the hearing officers. The providers appealed the DOM’s decision to the

chancery court, and the appeals were consolidated into one.

¶10.   The providers claimed in the chancery court that the evidence and testimony

presented at the administrative hearings showed that the DOM had never disallowed

prescription drug costs incurred by a provider from the provider’s cost report until

Gunderson’s audit review in 2008. They claimed that numerous witnesses testified at the

hearings that it was not until Gunderson’s audit that the DOM made a decision to change its

practice and policy for allowing prescription-drug costs.

¶11.   The providers acknowledged that the DOM properly amended the cost report

instructions, effective May 12, 2009, and the state plan, effective March 18, 2010. But they

contended that the DOM’s adjustments to the cost reports before the effective dates of these

amendments violated the law because the DOM retroactively applied new rules.

¶12.   The chancery court agreed with the providers. According to the chancery court, no

substantial evidence was presented by the DOM to support a finding that the legend drug



                                              5
costs at issue were not an allowable cost before 2008. The DOM had argued and the hearing

officers had found that it was simply an error that the providers’ cost reports had never been

adjusted to disallow legend drug costs and that the error was caught by the DOM in 2008,

before the amendments.

¶13.   But, according to the chancery court, the DOM failed to present substantial evidence

to support this determination. The chancery court found that the change in policy in 2008

was a substantial change that resulted in decreasing the per diem reimbursement rate to the

providers. The court said that “[t]his change resulted in an about-face by DOM and made

Legend Drug costs which were once allowable by the Medicaid program no longer

allowable.” Accordingly, the chancery court found that the DOM arbitrarily changed its

policy without properly amending the state plan and cost-report instructions.

                                       DISCUSSION

¶14.   This Court employs the same standard of review that our lower courts are bound to

follow when reviewing agency decisions. Crossgates River Oaks Hosp. v. Miss. Div. of

Medicaid, 240 So. 3d 385, 387 (Miss. 2018) (citing Miss. Comm’n on Envtl. Quality v.

Chickasaw Cty. Bd. of Supervisors, 621 So. 2d 1211, 1216 (Miss. 1993)). “Our courts are

not permitted to make administrative decisions and perform the functions of an

administrative agency. Administrative agencies must perform the functions required of them

by law.” Miss. State Bd. of Nursing v. Wilson, 624 So. 2d 485, 489 (Miss.1993) (quoting

State Farm Ins. Co. v. Gay, 526 So. 2d 534, 535 (Miss. 1988)). An administrative decision

may be reversed if the decision “(1) was not supported by substantial evidence, (2) is



                                              6
arbitrary or capricious, (3) was beyond DOM’s power to adopt, or (4) violates a

constitutional or statutory provision.” Id. (citing Town of Enterprise v. Miss. Pub. Serv.

Comm’n, 782 So. 2d 733, 735 (Miss. 2001)).

¶15.    Interpretation of a rule or regulation governing the agency concerns a matter of law,

which is reviewed de novo, with great deference afforded to the agency’s interpretation of

the rule. Sierra Club v. Miss. Envtl. Quality Permit Bd., 943 So. 2d 673, 678 (Miss. 2006)

(quoting McDerment v. Miss. Real Estate Comm’n, 748 So. 2d 114, 118 (Miss. 1999)).

This deference, however, does not extend to an agency’s interpretation of a statute, “which

is properly reserved to the courts of this state.” King v. Miss. Military Dep’t, 245 So. 3d 404,

408 (Miss. 2018).

¶16.    Medicaid is a cooperative federal-state program that provides medical assistance to

medicaid-eligible individuals. Jones v. Howell, 827 So. 2d 691, 693 (Miss. 2002). To

qualify for federal funds, a state must submit a Medicaid plan to the secretary of the

Department of Health and Human Services for approval. Cent. Miss. Med. Ctr. v. Miss. Div.

of Medicaid, No. 2018-SA-01410-SCT, 2020 WL 728806, *1 (Miss. Feb. 13, 2020) (citing

42 U.S.C. § 1396 (2012)), reh’g denied (Miss. May 7, 2020). The DOM “is bound to follow

the plan and cannot deviate from it.” Id. (citing Crossgates River Oaks Hosp., 240 So. 3d

385).

¶17.    Attachment 4.19-D of the state plan, “Guidelines for the Reimbursement for Medical

Assistance Recipients of Long Term Care Facilities,” in effect for the cost-reporting periods

at issue, reads in part as follows:



                                               7
       Each long-term care facility which has contractually agreed to participate in
       the Title XIX Medical Assistance Program will adopt the procedures set forth
       in this manual; each must file the required cost reports and will be paid for the
       services rendered on a rate related to the allowable and reasonable costs
       incurred for care and services provided to Medicaid recipients. Payments for
       services will be on a prospective basis.

       ....

       While it is recognized that some providers will incur costs in excess of the
       reimbursement rate, the objective of this plan is to reimburse providers at a
       rate that is reasonable and adequate to meet the costs that must be incurred by
       efficiently operated nursing facilities that comply with all requirements of
       participation in the Medicaid program.

¶18.   Attachment 4.19-D also contains the following provision:

       Non-Allowable Costs.

       Certain expenses are considered non-allowable for Medicaid purposes because
       they are not normally incurred in providing patient care. These non-allowable
       costs include, but are not limited to, the following types of expenses.

       ....

       (9) Other Non-Allowable Costs.

       The cost of any services provided for which residents are charged a fee is a
       non-allowable cost. In addition, the amount paid for any item subject to direct
       reimbursement by the Division of Medicaid is a non-allowable cost.

¶19.   The DOM’s Medicaid PPM section 36.07, “Nursing Facility, Per Diem Covered

Services,” provides in pertinent part

       Services and Items Covered by the Medicaid Per Diem Rate

       Any services or supplies that may be billed directly to Medicaid for nursing
       facility residents are non-allowable costs on the cost report and must be billed
       directly. These providers must have a separate provider number from that of
       the nursing facility.



                                              8
                These include:

                Laboratory services
                X-ray services
                Drugs covered by the Medicaid drug program

¶20.   Medicaid PPM section 31.17, “Pharmacy, Subject: Long Term Care Facilities” also

provides that

       Long-term care (LTC) residents may receive prescription, if the medication
       orders, signed by the prescribing provider, are documented in the individual
       patient record at the LTC. The pharmacist must maintain all transcribed
       documentation in his/her own prescription files.

       ....

       The cost of any drug supplied to residents in opposition to Medicaid policy
       and/or prior authorization requirements are not allowable on the facilities’ cost
       reports.

¶21.   Based on a plain reading of the state plan and the Medicaid PPM, in effect at the times

at issue, LTC providers are not entitled to Medicaid reimbursement for the costs of a legend

drug subject to direct reimbursement by the Division of Medicaid. The language contained

in attachment 4.19 D of the state plan is clear: “the amount paid for any item subject to direct

reimbursement by the Division of Medicaid is a non-allowable cost.” Pursuant to Medicaid

policy, drugs covered by the Medicaid drug program must be billed directly to Medicaid and

are non-allowable costs on a provider’s cost report. See Medicaid PPM section 36.07.

¶22.   This is in compliance with the controlling statutes. “It is the intent of the Legislature

that the pharmacists providers be reimbursed for the reasonable costs of filling and

dispensing prescriptions for Medicaid beneficiaries.”       Miss. Code Ann. § 43-13-117(9)

(Supp. 2019). The DOM is required to establish reasonable fees, charges, and rates for

                                               9
drugs. Miss. Code Ann. § 43-13-121 (Rev. 2015). The DOM “shall fix . . . those rates at the

minimum levels absolutely necessary to provide the medical assistance authorized by this

article, and shall not change any of those fees, charges or rates except as may be authorized

by [Mississippi Code] Section 43-13-117.” Miss. Code Ann. § 43-13-121.

¶23.   In Jones, this Court provided a brief overview of Medicaid’s drug reimbursement

program for pharmacists:

              To become a Medicaid provider, a pharmacist must submit an
       application and execute a Medical Assistance Participation Agreement . . .
       with the Division of Medicaid. Pursuant to the participation agreement, the
       pharmacist fills prescriptions for Medicaid recipients and submits claims for
       reimbursement to the Division of Medicaid. The Division of Medicaid
       reimburses each provider at the end of each month according to a specific
       formula.

Jones, 827 So. 2d at 694 (construing Miss. Code Ann. § 43-13-117(9) (Supp. 2011)).

¶24.   No where in the controlling statutes, the state plan, or Medicaid’s policy do we see

language that lends itself to a construction taken by the providers that all prescription drug

costs “not covered” by the Medicaid drug program means drug costs “not paid for” by

Medicaid. Were such an interpretation accepted, all of the aforementioned provisions above

and the intent behind them would be rendered nugatory.

¶25.   While the DOM may have failed to catch this in the past, legend drugs covered by

Medicaid’s Drug Program are subject to direct reimbursement from Medicaid to the

dispensing pharmacist, and constitute a non-allowable cost for the provider’s pier diem

reimbursement report. And any action taken to the contrary by Medicaid is a violation of its

rules and regulations.



                                             10
¶26.   Accordingly, we find that the chancery court erred reversing the DOM’s decision.

                                      CONCLUSION

¶27.   We find that the DOM’s decision to disallow the legend drug costs claimed by the

providers in their per diem cost reports for the reporting years 2005, 2007, and 2008 was

supported by substantial evidence, was not arbitrary and capricious, and was within the

DOM’s authority. We reverse the chancery court’s order and reinstate the DOM’s decision.

¶28.   REVERSED AND RENDERED.

       RANDOLPH, C.J., MAXWELL, CHAMBERLIN AND ISHEE, JJ., CONCUR.
COLEMAN, J., SPECIALLY CONCURS WITH SEPARATE WRITTEN OPINION
JOINED BY KING, P.J.; GRIFFIS, J., JOINS IN PART. KING, P.J., CONCURS IN
PART AND IN RESULT WITHOUT SEPARATE WRITTEN OPINION. GRIFFIS,
J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY KITCHENS,
P.J.

       COLEMAN, JUSTICE, SPECIALLY CONCURRING:

¶29.   I concur with the majority’s analysis in the case sub judice with the exception that I

am of the opinion that the practice of extending judicial deference to an executive agency’s

interpretation of its own rules and regulations should end. However, even under a de novo

standard of review, I agree with the result reached by the majority. The plain language of the

Medicaid State Plan and the Department of Medicaid Provider Policy Manual provides that

drugs that are subject to direct reimbursement from Medicaid to the dispensing pharmacist

constitute a non-allowable cost for the provider’s per diem reimbursement report.

I.     The Court should no longer defer to executive agency interpretations of
       rules or regulations.




                                             11
¶30.   The standard of review proposed by the majority for interpretation of agency-

promulgated rules and regulations is as follows:

              This Court employs the same standard of review that our lower courts
       are bound to follow when reviewing agency decisions. Crossgates River Oaks
       Hosp. v. Miss. Div. of Medicaid, 240 So. 3d 385, 387 (Miss. 2018) (citing
       Miss. Comm’n on Envtl. Quality v. Chickasaw Cty. Bd. of Supervisors, 621
       So. 2d 1211, 1216 (Miss. 1993)). . . .

              Interpretation of a rule or regulation governing the agency concerns a
       matter of law, which is reviewed de novo, with great deference afforded to the
       agency’s interpretation of the rule. Sierra Club v. Miss. Envtl. Quality Permit
       Bd., 943 So.2d 673, 678 (Miss. 2006) (quoting McDerment v. Miss. Real
       Estate Comm’n, 748 So. 2d 114, 118 (¶ 9) (Miss. 1999)).

Maj. Op. ¶¶ 14, 15.

¶31.   The de-novo-but-with-deference standard is confusing and has been applied

inconsistently in recent years. In fact, the majority cites two cases in the standard-of-review

section in the case sub judice which are inherently contradictory. The Court in Crossgates,

citing Sierra Club, stated that “[a]n agency’s interpretation of a rule governing the agency’s

operation is a matter of law that is reviewed de novo, but with great deference to the agency’s

interpretation.” Crossgates River Oaks Hosp. v. Miss. Div. of Medicaid, 240 So. 3d 385,

387 (¶ 7) (Miss. 2018) (citing Sierra Club v. Miss. Envtl. Quality Permit Bd., 943 So. 2d

673, 679 (¶ 17) (Miss. 2006)). In the very next sentence, the Court in Crossgates stated,

“[h]owever, an agency’s interpretation will not be upheld if it is ‘so plainly erroneous or so

inconsistent with either the underlying regulation or statute as to be arbitrary, capricious, an

abuse of discretion or otherwise not in accordance with the law.’” Id. (quoting Div. of

Medicaid v. Miss. Indep. Pharmacies Ass’n, 20 So. 3d 1236, 1238 (¶ 6) (Miss. 2009)). That



                                              12
sentence in Crossgates contradicted what was said in Sierra Club: “However, where an

administrative agency’s interpretation is contrary to the unambiguous terms or best reading

of a statutory provision, the agency is not entitled to deference.” Sierra Club, 943 So. 2d at

679 (¶ 17) (citing Miss. Gaming Comm’n v. Imperial Palace of Miss., Inc., 751 So. 2d

1025, 1029 (¶ 16) (Miss. 1999)).

¶32.   The language in Crossgates only obviates agency deference if the agency’s

interpretation is “plainly erroneous” or “an abuse of discretion,” Crossgates, 240 So. 3d 387

(quoting Div. of Medicaid v. Mississippi Indep. Pharmacies Ass’n, 20 So. 3d 1236, 1238

(¶ 6) (Miss. 2009)), while the language in Sierra Club obviates agency deference if their

interpretation is repugnant to the “best reading of [the] statutory provision,.” Sierra Club,

943 So. 2d at 679 (¶ 17) (quoting Imperial Palace of Miss., Inc., 751 So. 2d 1025, 1029 (¶

16) (Miss. 1999)). The Sierra Club standard of review gives far less deference than the

standard in Crossgates, and both cases were cited in the case sub judice.                Having

contradictory standards of review creates inconsistency in results.

¶33.   Further, the unanimous Court in King ended the practice of giving deference to state

agencies’ interpretations of statutes. King v. Miss. Military Dep’t, 245 So. 3d 404, 408 (¶

10) (Miss. 2018). The King Court held that granting deference to an agency’s interpretation

of statutes ran afoul of the Mississippi Constitution. Id. Similarly, granting deference to an

agency’s interpretation of rules and regulations runs afoul of the Mississippi Constitution:

       No person or collection of persons, being one or belonging to one of these
       departments, shall exercise any power properly belonging to either of the
       others. The acceptance of an office in either of said departments shall, of itself,



                                               13
       and at once, vacate any and all offices held by the person so accepting in either
       of the other departments.

Miss. Const. art. 1, § 2.

¶34.   Granting deference to an agency’s interpretation of rules and regulations puts all or

part of the three functions of government into one branch, something the Mississippi

Constitution explicitly prohibits. When it comes to pure questions of law, the Court should

review agency interpretations of rules and regulations de novo.

    KING, P.J., JOINS THIS OPINION. GRIFFIS, J., JOINS THIS OPINION IN
PART.

       GRIFFIS, JUSTICE, DISSENTING:

¶35.   I disagree with the majority for two reasons.

¶36.   First, I disagree with the majority’s characterization that the “DOM may have failed

to catch this in the past . . . .” Maj. Op. ¶ 25. This implies that the providers here were

without any reason or justification to include legend drug costs in its per diem

reimbursement-cost reports. In fact, the DOM presented no evidence that it had ever taken

the position that legend drugs were not an allowable cost.

¶37.   This is supported by the DOM’s own employees. Brian Smith, the DOM’s accounting

auditing bureau director, was offered as an expert witness in interpretation and application

of the Medicaid State Plan and cost reporting and reimbursement for long-term-care (LTC)

facilities for drugs. Smith had been employed in the auditing department since 1994 and

testified he had no knowledge that legend drug costs had ever been adjusted to non-allowable

before 2008. Smith estimated that he had participated in over two hundred audits. Smith



                                              14
testified that he first became aware of an issue related to the cost of legend drugs during the

2008 Clifton Gunderson audits.

¶38.   Eric Everett was an accountant auditor professional 3 in the DOM Reimbursement

Bureau. He was responsible for conducting desk reviews of cost reports for all nursing

homes and was tendered as an expert regarding cost reports, desk reviews, and interpretation

and application of the state plan and Medicaid policy as it relates to LTC facilities. Everett

testified that a group within the DOM first began discussing legend drug costs sometime in

2008. Before that, he had never been instructed to nor had he made an adjustment to

disallow legend drug costs.

¶39.   T. J. Walker was employed by the DOM Bureau of Reimbursement as an accountant

auditor professional 3. He conducted the secondary review of the initial desk review by

Everett of all cost reports. Walker had been employed with Medicaid since 2001 and worked

within the Bureau of Reimbursements since 2002. Walker was offered as an expert in the

interpretation and application of the state plan, cost reporting, and reimbursement of LTC

facilities for drugs. Walker testified that his department first began to review drug costs after

Clifton Gunderson conducted audits in 2008. Before that, the Bureau of Reimbursement had

never questioned that costs for over-the-counter and legend drugs were allowable.

¶40.   Based on the testimony of the DOM’s own employees, there was simply no evidence

that would support the majority’s claim that the “DOM may have failed to catch this in the

past . . . .” Maj. Op. ¶ 25.




                                               15
¶41.   Further, on May 7, 2008, the DOM Bureau of Reimbursement sent an email “Notice

to Nursing Facility Cost Report Preparers.” This notice included the following:

       DIRECT CARE COSTS FOR DRUGS: OVER-THE-COUNTER AND
       LEGEND
       The Division has become aware of a major reporting problem related to Form
       6, Line 1-14 for over-the-counter and legend drugs reported as allowable costs.
       These costs should be minimal for all providers. The reported costs by nursing
       facilities for this line item are just short of $8,000,000 in 2006. Reported costs
       range from $0.00 to $321,633 and reach up to 14% of total direct care costs.
       It is imperative that facilities reclassify all non-allowable drug costs to Form
       6, Line 6-13 of the cost report. Facilities must classify expenses for all
       residents the same, regardless of their pay source.

¶42.   The majority’s characterization of this is contrary the DOM’s memorandum of May

7, 2008, sent to cost-report preparers. This memorandum clearly established that the DOM’s

past practice included legend drug costs. In this memorandum, the reported costs for all

nursing facilities was “just short of $8 million in 2006” and “reach up to 14% of total direct

care costs.” The chancellor properly considered this memorandum as evidence that many,

if not all, providers interpreted the DOM’s instructions and state plan just as the providers

did in this case. Certainly, contrary to the majority’s characterization, it may not be said that

the “DOM may have failed to catch this in the past . . . .” Maj. Op. ¶ 25. As the DOM

argued and the hearing officers concluded, these providers did not just slip through the cracks

due to an error.

¶43.   Second, I disagree with the majority’s reading of the state plan and the DOM’s

instructions. The majority would have us believe that there was no reason or justification for

the providers to include legend drug costs in its per diem reimbursement-cost reports.




                                               16
¶44.    The state plan provides that “the amount paid for any item subject to direct

reimbursement by the Division of Medicaid is a non-allowable cost.” In fact, pursuant to

Medicaid policy, drugs covered by the Medicaid drug program must be billed directly to

Medicaid and are non-allowable costs on a provider’s cost report. See Medicaid PPM section

36.07. I agree.

        1.      The State Plan

¶45.    The State Plan identifies two categories of drugs—Legend and over-the-counter

(OTC). In fact, the “Allowable Costs” section of the state plan has two provisions that apply

to drugs. “In order for a cost to be an allowable cost for Medicaid reimbursement purposes,

it must be reasonable and necessary in the normal conduct of operations related to providing

patient care . . . :”

        14.     Personal Hygiene Items. The cost of routine personal hygiene items
                and services as required to meet the needs of the residents, including,
                but not limited to, . . . over-the-counter drugs that are not covered by
                the Mississippi Medicaid drug program . . . .

        17.     Supplies and Materials. This includes, but it not limited to, medical
                supplies, legend drugs that are not covered by the Mississippi Medicaid
                drug program, . . . Medical supplies necessary for the provision of care
                in order to attain or maintain the highest practical physical, mental, and
                psychosocial well-being of each resident, as determined by resident
                assessments and individual plans of care are allowable costs. Any
                supplies or equipment ordered by a resident’s attending physician must
                be provided by the facility and will be an allowable cost as a supply
                expense . . . .

(Emphasis added.)

¶46.    According to the state plan, as written from 1994 to 2010, “legend drugs that are not

covered by the Mississippi Medicaid drug program” were considered “medical supplies.”

                                               17
In fact, if legend drugs were ordered by the resident’s physician, the provider was required

by law to pay for and to provide legend drugs for its residents. Thus, the providers were

instructed that the cost for OTC and legend drugs “will be allowable costs” on the provider’s

cost report as long as they are “not covered by the Mississippi Medicaid drug program.”

       2.     Cost Report Instructions

¶47.   The DOM’s Cost Report Instructions provide guidance as to the allowable costs for

the years at issue:

       Line 1 Direct Care Expenses

       Cost of direct care of medical services must be included in Section 1 lines 1-01
       through 1-18. Lines 1-05 to 1-10 are for employee benefits for the direct care
       employees.

       Line 1-14, Drugs Over-the-Counter and Legend

       Cost of over-the-counter and Legend Drugs provided by the facility to its
       residents. This is for drugs not covered by the Medicaid Drug Program.

The cost report instructions are consistent with and follow the language of the state plan

quoted above.

       3.     Cost Report and Medicaid-Reimbursement Program

¶48.   It is important to note that nursing facilities are not directly reimbursed by Medicaid

for costs they incur in care of residents enrolled in Medicaid. Instead, each facility is

“reimbursed” for reasonable costs incurred in caring for residents through a prospective

method of payment, by which a per diem rate is established for each resident.3 The per diem



       3
         The per diem rate established by the DOM based on costs allowed from a 2005
report would be the rate paid to the provider during 2007.

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rate is calculated, in part, based upon allowable costs disclosed on a provider’s cost report.

The DOM adjustments that disallowed legend drug costs actually incurred in providing

resident care resulted in a substantial reduction to the per diem rate for each of these

providers.

¶49.   The providers involved here, just like all privately operated nursing facilities, must

submit cost reports following the close of each calendar reporting year of January 1 through

December 31. Cost reports must be prepared in accordance with the state plan for

reimbursement of long-term-care facilities. Providers are obligated to report all expenses

correctly when signing the cost report.

       4.      Pharmacy Program

¶50.   There is a Pharmacy Program in Medicaid. LTC providers are not authorized to

directly bill Medicaid for legend drugs ordered by a physician for LTC residents. To bill

Medicaid directly for drug costs, the provider must be a pharmacy with a Medicaid

pharmacy-provider number (agreement). Typically, the physician prescribes the drug and the

prescription is submitted to a pharmacist who fills the prescription and bills Medicaid or any

other payor source for the drug. This process is referred to by the DOM as the point-of-sale

(POS) program. Under the POS program, the providers relied upon the pharmacists to follow

this procedure.

¶51.   But the LTC providers are not involved in the POS program. As the providers and

their experts testified, if the pharmacy did not get reimbursed for the cost of the drug, it billed




                                                19
the provider, and the provider is required by the state plan to pay for the drugs. This is why

these providers incurred the cost of the drugs in dispute.

       5.     The providers followed the state plan and instructions

¶52.   The chancellor held that the plain language of the state plan and the applicable

instructions required that all legend drug costs “not covered by the Medicaid Drug Program,”

i.e., not paid for by Medicaid, are an allowable cost. Such costs were incurred by the

providers as a necessary expense in caring for the residents. The provider’s interpretation of

the state plan and instructions were not only reasonable but were consistent with the DOM’s

practice before 2008.

¶53.   The evidence presented supports the chancellor’s decision.

¶54.   A number of experts testified about the Medicaid cost reports and the meaning of

certain terms. They testified that the term “not covered” means “not paid for.” They

explained that because Medicaid did not pay for the drugs, the provider was required to do

so. They concluded that, under the state plan, such costs paid by the provider were allowable

on the cost report.

¶55.   Certified Public Accountant David Stewart was offered as an expert witness in the

preparation of cost reports. He testified that he prepared cost reports for approximately

twenty skilled nursing facilities and that he had been preparing cost reports for approximately

fifteen years. Stewart testified that he always included legend drugs and OTC drug costs not

paid for by the DOM as an allowable cost on his clients’ cost reports. Stewart explained that

he interpreted the state plan and instructions to mean that if a drug was “covered” by the



                                              20
DOM, it was paid for. He also testified that the DOM had never reclassified legend or OTC

drugs on any of his clients’ cost reports before 2008. Stewart also presented a summary that

indicated that senior-care facilities’ legend drug costs had not been questioned dating as far

back as 2001.

¶56.   As discussed above, the DOM employees who testified did not contradict Stewart or

any of the other financial experts offered by the providers. In fact, the DOM admitted that

the DOM had never reclassified legend drug costs to non-allowable before the Clifton

Gunderson audit or the desk reviews that occurred after 2008.

¶57.   The majority finds no significance that the DOM determined it was necessary to

amend the state plan and the instructions. The DOM followed the Administrative Procedures

Act, Mississippi Code Section 25-43-1.101 (Rev. 2018), and the amendments to the state

plan and the instructions became effective on May 12, 2009. The DOM also amended the

state plan effective March 18, 2010. These amendments changed the way legend drug costs

paid by all providers were treated and those costs are no longer allowable.

¶58.   Frankly, this case demonstrates the error of this Court’s granting an administrative

agency deference in its interpretations. Before the Gunderson audit, the DOM’s own

employees did not question the providers’ inclusion of legend drugs in the cost reports. The

DOM asks this Court to give it deference after it concluded that it believed the legend drugs

should not be included in the cost reports. The DOM apparently, at some point, changed its

interpretation of its own state plan and instructions. The DOM’s interpretation is entitled to

no deference by this Court.



                                             21
¶59.   I am of the opinion that the chancellor’s judgment should be affirmed. The chancellor

properly held that there was a lack of evidence to support the decision that legend drug costs

had never been accepted by the DOM as an allowable cost.

¶60.   For these reasons, I respectfully dissent.

       KITCHENS, P.J., JOINS THIS OPINION.




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