Samantha Burgess, Alyssa Skeens, George Grover, Jessica Halstead, and Sunshine Holstein v. West Virginia Department of Human Services, Bureau of Medical Services, and Holistic, Inc. v. West Virginia Department of Human Services, Bureau for Medical Services

No. 23-ICA-11 Samantha Burgess, Alyssa Skeens, George Grover, Jessica Halstead, and
Sunshine Holstein v. West Virginia Department of Human Services, Bureau of Medical
Services, and
No. 23-ICA-39 Holistic, Inc. v. West Virginia Department of Human Services, Bureau for
Medical Services FILED
SCARR, C.J., concurring, in part, and dissenting, in part: June 12, 2024
released at 3:00 p.m.
ASHLEY N. DEEM, DEPUTY CLERK
INTERMEDIATE COURT OF APPEALS
OF WEST VIRGINIA

I write separately from the majority to concur in part and dissent in part. I

concur with the analysis and all findings and conclusions of the majority opinion as to

jurisdiction, part of the first assignment of error and the second assignment of error. I agree

with the majority opinion that this Court has jurisdiction over this appeal. I also agree that

the decision of BMS to suspend Medicaid payments to Petitioners was anything but

arbitrary and capricious and that BMS did consider and did not abuse its discretion in

concluding that good cause did not exist to prevent the mandatory suspension of payments.

I further concur with the majority’s conclusion as to the adequacy of the specific detail of

the allegations in BMS’ pre-suspension notice which was subsequently supplemented with

additional information. And, finally despite my dissent, I concur with the ultimate holding

in the case.

My dissent is limited to the conclusion that payments for services already

provided, described as “earned funds,” do not constitute a property interest under the

State’s Medicaid program triggering due process concerns and protections. I distinguish

the status of “earned funds” from the alleged right or interest in continued participation in

the Medicaid program which I agree, in these circumstances, is not a constitutionally

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protected property interest. However, I believe that uninterrupted payment of “earned

funds” under the State’s Medicaid program constitutes a property interest protected by the

due process clause of the Fourteenth Amendment of the United States Constitution and

Section 10 of the West Virginia Constitution. The majority opinion notes that there is law

going both ways on this issue and specifically references the holding of the Fourth Circuit

Court of Appeals in Ram v. Heckler, 792 F.2d 444 (4th Cir. 1986), which actually

concluded that there is a constitutionally protected property interest in federal healthcare

programs such as Medicaid and Medicare. While I do not agree that continued participation

in such programs by healthcare providers is a constitutionally protected property interest,

I do believe that payment of “earned funds” is such a property interest requiring due process

protections. I am particularly uncomfortable with the logic and conclusion that the simple

initiation of a fraud investigation, which may or may not ultimately result in findings of

fault, somehow vitiates constitutionally protected property interests. This conclusion is ripe

for abuse. Despite my dissent on the issue of constitutionally protected property interests

in payment of “earned funds,” like the majority, I am satisfied that under the circumstances

in this case, adequate due process protections were provided to the Petitioners, although

the delays in the process and provision of detailed information as to the alleged fraud,

resulting in lengthy suspensions, are troubling, particularly as it relates to the individual

Petitioners.

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