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Blevins v. Division of Medical Assistance Programs

Court of Appeals of Oregon

May 9, 2018

Laura BLEVINS, Petitioner,
v.
DIVISION OF MEDICAL ASSISTANCE PROGRAMS, acting by and through the Oregon Health Authority, Respondent.

          Argued and Submitted December 14, 2017

         Offce of Administrative Hearings 2016OHA00101.

          Hermine Hayes-Klein argued the cause and fled the briefs for petitioner.

          Jona J. Maukonen, Assistant Attorney General, argued the cause for respondent. With her on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

          Before Ortega, Presiding Judge, and Garrett, Judge, and Powers, Judge.

         Case Summary: Petitioner seeks review of a final order of the Division of Medical Assistance Programs (DMAP), cancelling a contested case hearing on whether DMAP properly denied petitioner coverage for an out-of-hospital birth. Petitioner, who was covered by the Oregon Health Plan, decided to have her baby delivered at a birth center by a nurse-midwife. DMAP denied petitioner's request to cover the delivery, and petitioner obtained private insurance to cover the costs of an out-of-hospital birth. Petitioner sought review of the coverage denial, and DMAP scheduled a contested case hearing several months after petitioner was expected to give birth. After petitioner's child was born, DMAP cancelled the contested case hearing, reasoning that petitioner's challenge was "no longer hear-able" under OAR 137-003-0515(4)(b) because petitioner had not signed a form agreeing to be personally billed by the birth center for non-covered services under OAR 410-120-1280(3)(h). On review, petitioner argues that the order cancelling the contested case hearing was not supported by substantial reason.

         Held: The petition for review is moot because resolution of the merits will no longer have a practical effect on petitioner's rights. The only redress that petitioner sought [291 Or.App. 670] was reimbursement for attorney's fees under ORS 183.497, which is insufficient to render the petition not moot. The petition for review is nevertheless justiciable under ORS 14.175 because a future challenge to the denial of coverage for birth services is capable of repetition and reasonably likely to evade judicial review. The Court of Appeals exercised its discretion to reach the merits of the petition, and, on the merits, concluded that DMAP's order was not supported by substantial reason. The fact that petitioner could not be personally billed by the birth center for medical expenses did not explain why the hearable issues as petitioner had articulated them have been resolved.

          [291 Or.App. 671]GARRETT, J.

         Petitioner seeks review of a final order of the Division of Medical Assistance Programs (DMAP), a division of the Oregon Health Authority, cancelling a contested case hearing regarding DMAP's denial of her request for prior authorization of an out-of-hospital birth. We conclude that DMAP's order cancelling the contested case hearing lacks substantial reason. See Hooper v. Division of Medical Assistance Programs, 273 Or.App. 73, 86, 356 P.3d 666 (2015) (a final administrative order "must demonstrate substantial reason, that is, the reasoning leading from the facts found to the conclusions drawn" (citing Drew v. PSRB, 322 Or. 491, 499-500, 909 P.2d 1211 (1996))). Accordingly, we reverse and remand.

         The facts pertinent to our resolution are not in dispute. Petitioner, who was covered by the Oregon Health Plan (OHP), became pregnant. She decided to have her baby delivered outside of a hospital setting, at the Klamath Women's Clinic birth center, by a nurse-midwife who was not enrolled as a provider in petitioner's coordinated care organization. Petitioner planned to give birth vaginally, despite having previously given birth via caesarean section (C-section). Petitioner submitted a prior-authorization request for a "vaginal birth after caesarean" (VBAC) to DMAP, which denied petitioner's request, stating that a "previous C-section is an automatic high-risk exclusion" for an out-of-hospital birth and that petitioner's provider had not submitted a "plan of care" addressing petitioner's particular needs in light of her previous C-section. Petitioner obtained private insurance to cover the costs of her out-of-hospital birth.

         Petitioner sought to appeal the denial of coverage and requested a hearing for review of DMAP's denial of her prior-authorization request. DMAP referred the matter to the Office of Administrative Hearings (OAH) for a contested case hearing. While the matter was pending before OAH, petitioner gave birth to her child. DMAP then cancelled the contested case hearing, leading to this petition for judicial review.

         In her first assignment of error, petitioner challenges DMAP's cancellation of the contested case hearing. [291 Or.App. 672] Petitioner's second, third, and fourth assignments of error address the substantive merits of DMAP's denial of petitioner's prior-authorization request. As explained below, we agree with petitioner that DMAP's order canceling the contested hearing lacks substantial reason, and we reverse and remand for that reason. We decline to address petitioner's remaining assignments of error, as one possible outcome on remand is a contested case hearing at which the merits of DMAP's denial of the prior-authorization request may be addressed in the first instance. Accordingly, our discussion that follows is limited to the narrow procedural issues concerning the cancellation of the hearing.

         Petitioner's baby was due in March 2016. On February 6, petitioner received DMAP's letter denying her request for coverage for an out-of-hospital birth, dated January 28. Petitioner promptly sought review in a contested case hearing, and requested expedited consideration under former OAR 410-141-0265 (Oct 31, 2013). On March 7, DMAP denied the request for an expedited hearing, and scheduled the matter for hearing before an administrative law judge on May 2, 2016. On March 19, petitioner gave birth at the birth center. The costs associated with the birth were paid by the private insurance that petitioner had obtained.

         On April 28, 2016, petitioner submitted her hearing memorandum and related materials for the contested case hearing scheduled for May 2. Later that same day, petitioner received a letter from a DMAP official, Nino, stating that DMAP had cancelled the hearing and withdrawn the case from OAH pursuant to OAR 137-003-0515(4)(b) (providing that an agency may withdraw a case before hearing if "[a]ll of issues in the case have been resolved without ...


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