Country Meadows Convalescent Center V. Utah Department of Health : Reply Brief Utah Court of Appeals

Brigham Young University Law School BYU Law Digital Commons Utah Court of Appeals Briefs 1992 Country Meadows Convalescent Center v. Utah Department of Health : Reply Brief Utah Court of Appeals Follow this and additional works at: https://digitalcommons.law.byu.edu/byu_ca1 Part of the Law Commons Original Brief Submitted to the Utah Court of Appeals; digitized by the Howard W. Hunter Law Library, J. Reuben Clark Law School, Brigham Young University, Provo, Utah; machine-generated OCR, may contain errors. Dale E. Stratford; Attorney at Law. R. Paul Van Dam; Attorney General; J. Stephen Mikita; Assistant Attorney General. Recommended Citation Reply Brief, Country Meadows Convalescent Center v. Utah Department of Health, No. 920302 (Utah Court of Appeals, 1992). https://digitalcommons.law.byu.edu/byu_ca1/4232 This Reply Brief is brought to you for free and open access by BYU Law Digital Commons. It has been accepted for inclusion in Utah Court of Appeals Briefs by an authorized administrator of BYU Law Digital Commons. Policies regarding these Utah briefs are available at http://digitalcommons.law.byu.edu/utah_court_briefs/policies.html. Please contact the Repository Manager at [email protected] with questions or feedback. IN THE UTAH COURT OF APPEALS, STATE OF UTAH COUNTRY MEADOWS CONVALESCENT CENTER, a Delaware Corporation, Petitioner-Appellant, Case No. 920302-CA - vs - UTAH DEPARTMENT OF HEALTH, Priority 16 DIVISION OF HEALTH CARE FINANCING, Respondent-Appellee. REPLY BRIEF OF APPELLANT APPEAL FROM THE DISMISSAL ORDER OF THE HONORABLE J. DENNIS FREDERICK, THIRD JUDICIAL CIRCUIT COURT, STATE OF UTAH UTAH COURT OF APPEALS DALE E. STRATFORD BRIEF Attorney at Law UTAH 1218 First Security Bank DOCUMENT Ogden, Utah 84401 KFU (801) 393-7085 50 .A10 "c^O^'O DOCKET NO. R. PAUL VAN DAM Attorney General J. STEPHEN MIKITA OECU01S92 Assistant Attorney General UTAH ATTORNEY GENERAL'S OFFICE 2 36 State Capitol k Salt Lake City, Utah 84414 .Vffiry f i 400a:cc (SCI) 538-1019 IN THE UTAH COURT OF APPEALS, STATE OF UTAH COUNTRY MEADOWS CONVALESCENT CENTER, a Delaware Corporation, Petitioner-Appellant, Case No. 920302-CA - vs - UTAH DEPARTMENT OF HEALTH, Priority 16 DIVISION OF HEALTH CARE FINANCING, Respondent-Appellee. REPLY BRIEF OF APPELLANT APPEAL FROM THE DISMISSAL ORDER OF THE HONORABLE J. DENNIS FREDERICK, THIRD JUDICIAL CIRCUIT COURT, STATE OF UTAH DALE E. STRATFORD Attorney at Law 1218 First Security Bank Ogden, Utah 84401 (801) 393-7085 R. PAUL VAN DAM Attorney General J. STEPHEN MIKITA Assistant Attorney General UTAH ATTORNEY GENERAL'S OFFICE 236 State Capitol Salt Lake City, Utah 84414 (801) 538-1019 TABLE OF CONTENTS Page Title Page Determinative Statutes and Rules 1 Summary of Argument 2 Argument 3 Conclusion 4 TABLE OF AUTHORITIES Page Utah Code Ann. 26-23-2 (3) 1,3 Utah Rules of Civil Procedure, 41 (b) 3 Utah Rules of Civil Procedure, 81 (d) 1,3 42 C.F.R. Sec. 405.427 (d) 2 IN THE UTAH COURT OF APPEALS, STATE OF UTAH COUNTRY MEADOWS CONVALESCENT } CENTER, a Delaware Corporation } Petitioner and Appellant, > v. REPLY BRIEF OF } APPELLANT UTAH DEPARTMENT OF HEALTH, DIVISION OF HEALTH CARE FINANCING, } Case No. 920302-CA Respondent and Appellee. } Determinative Rules. Rule 81 (d), Utah Rules of Civil Procedure On appeal from or review of a ruling or order of an adminstrative board or agency. These rules shall apply to the practice and procedure in appealing from or obtaining a review of any order, ruling or other action of an administrative board or agency, except insofar as the specific statutory procedure in connection with any such appeal or review is in conflict or inconsistent with these rules. Title 26-23-2, Utah Code Ann. (1984) (in part). (2) Judicial review of a final determination of the executive director may be secured by the aggrieved party by filing a petition in the district court within 30 days after receipt of notice of the executive director's final determination. The petition, which shall be served on the executive director, shall state the grounds upon which review is sought. With his answer, the executive director shall certify and file with 1 the court all documents and papers and a transcript of all testimony taken in the matter, together with the recommended findings of fact and conclusions of law of the hearing officer, and the final determination of the executive director. (3) If the final determination of the executive director is consistent with the findings of fact and conclusions of law recommended by the hearing officer, the court shall review the record and may alter the final determination only upon a finding that the final determination is capricious, or not supported by the evidence. 42 C.F.R. 405.427(d). (d) Exception. An exception is provided to this general principle if the provider demonstrates by convincing evidence to the satisfaction of the fiscal intermediary that the supplying organization is a bonafide separate organization; that a substantial part of its business activity of the type carried on with the provider is transacted with others than the provider and organizations related to the supplier by common ownership or control and there is an open competitive market for the type of services, facilities, or supplies furnished by the organization, that the services, facilities, or supplies, are those which commonly are obtained by institutions such as the provider from other organizations and are not a basis element of patient care ordinarily funished directly to patients by such institution; and that the charge to the provider is in line with the charge for such services, facilities, or supplies in the open market and no more than the charge made under cmparable circumstances to others by the organization for such services, facilities, or supplies. In such case, the charge by the supplier to the provider for such services, facilities, or supplies shall be allowable as cost. SUMMARY OF ARGUMENT Costs incurred by health care providers for services, facilities, or supplies furnished by related entities are allowable for reimbursement under 42 C.F.R. 405.427(d) under certain circumstances. 2 In its ruling, the administrative agency has ignored the evidence presented at the hearing as to these circumstances. In its review of the administrative record or appeal, the district court has confused its review which is in the nature of certiorari with a supposed dicretion to dismiss the appeal under Rule 41(b), Utah Rules of Civil Procedure. Rule 41(b) is inconsistent with the statute charging the court with conducting a review of the agency record. The rule does not apply at such proceedings under the terms of Rule 81(d), Utah Rules of Civil Procedure. ARGUMENT Respondents' brief in oppostion argues (as part of it's statement of facts), on page 9, note 5, that costs to a related organization will only be allowed where they are actually incurred, and where they do not exceed the price of comparable services, facilities, or supplies from alternative entities. Country Meadows introduced evidence before the administrative hearing officer on these questions. The evidence was not rebutted, and it was not considered in the final determination. The agency was capricious, and the evidence does not support the final determination of the Division of Health Care Financing. The application of Rule 41 (b) of the rule of procedure is inconsistent with the comprehensive set of principles and the coverage of the specific procedure of the statute providing for review of administrative orders by the district court. Under Rule 81(d), Utah Rules of Civil Procedure, Rule 41(b) of the rules is inapplicable to the appeal process as it is in conflict with 26-23-2(3), Utah Code Ann. (1984). It is not in agreement or in harmony with the conduct or practice of judicial review of the proceedings before an inferior tribunal. 3 CONCLUSION The district court was within it's jurisdiction to review the record of the administrative agency, and it now becomes the duty of the Court of Appeals to review that record on appeal from the order of the district court. DATED this day of December, 1992. Dale E. Stratford Attorney for Country Meadows Convalescent Center. CERTIFICATE OF SERVICE I hereby certify that I mailed four (4) copies of the foregoing Reply Brief, postage prepaid, on this day of December, 1992, to the following: R. PAUL VAN DAM Attorney General J. STEPHAN MIKITA Assistant Attorney General 236 State Capitol Salt Lake City, Utah 84114 4 .

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