Rizkallah v. Attorney Gen.

• Decision Date: 03 December 2021
• Docket Number: 20-P-927
• Citation: 100 Mass.App.Ct. 533,181 N.E.3d 517
• Parties: Mouhab Z. RIZKALLAH v. ATTORNEY GENERAL.
• Court: Appeals Court of Massachusetts

100 Mass.App.Ct. 533

181 N.E.3d 517

Mouhab Z. RIZKALLAH

v.ATTORNEY GENERAL.

No. 20-P-927

Appeals Court of Massachusetts, Essex.

Argued September 9, 2021.

Decided December 3, 2021.

Joel Rosen, Andover, for the plaintiff.

David R. Marks, Assistant Attorney General (Stephany G. Collamore, Assistant Attorney General, also present) for the Attorney General.

Present: Vuono, Blake, & Englander, JJ.

ENGLANDER, J.

This case involves an investigation by the Massachusetts Attorney General's office (AGO) into allegedly fraudulent Medicaid claims made by the plaintiff, Mouhab Rizkallah, DDS,¹ who runs several orthodontic practices in the Commonwealth. The case raises issues regarding how the subject of such an investigation might challenge the Commonwealth's positions before the investigation has run its course, where in the meantime the Commonwealth is withholding the subject's Medicaid reimbursements.

In April 2019, the Commonwealth's agency that administers the Massachusetts Medicaid program, MassHealth, began withholding certain payments that ordinarily would have been due to Rizkallah for orthodontic services rendered. In January 2020 the Attorney General issued a civil investigative demand (CID) to Rizkallah, pursuant to G. L. c. 12, § 5N, seeking the orthodontic files of 220 of Rizkallah's patients. Rizkallah responded in February 2020 by (1) filing an emergency motion to set aside the CID or to issue a protective order (motion for protective order), and (2) filing a declaratory judgment lawsuit (declaratory judgment complaint), seeking among other things a declaration of "Dr. Rizkallah's right to bill" the charges under investigation. A Superior Court judge denied the motion for protective order. Thereafter, a different Superior Court judge dismissed the declaratory judgment complaint, reasoning among other things that the court lacked jurisdiction to interfere as requested with the AGO's ongoing investigation. We find no error in the denial of the motion for protective order, but we vacate the dismissal of the declaratory judgment complaint, as the court was not without jurisdiction to decide that claim.

Background.² Rizkallah and MassHealth had been sparring over various issues for several years prior to MassHealth's April 2019 decision to withhold certain payments from Rizkallah. Rizkallah runs orthodontic practices at six locations in Massachusetts, which serve thousands of MassHealth patients. Most of Rizkallah's patients are children insured through Medicaid.³

In March 2017, the AGO sent Rizkallah a CID seeking thirty-one patient files and documents related to Rizkallah's provision of athletic mouthguards. Rizkallah complied with this request, without objection. In August 2017, the AGO sent additional requests for documents, and Rizkallah again complied with the request. No further action occurred for almost two years, when in April 2019 MassHealth served notice that it was withholding payments from Rizkallah with respect to billing code D9941 -- the code applicable to athletic mouthguards. Rizkallah alleged that under the applicable statutes and regulations, he was required to continue to provide mouthguards to covered patients if he wished to remain a MassHealth provider, even though he was not being paid. Rizkallah did so.

In January 2020 the Attorney General issued a second CID to Rizkallah, this time seeking 220 additional patient files. The CID stated in pertinent part that the AGO was:

"in the course of an investigation to determine whether there is, has been, or may be a violation of G. L. c. 12, § 5B [the False Claims Act] by conduct of the following nature:

"Submission of claims for payment to the Massachusetts Medicaid Program (‘MassHealth’) using Current Dental Terminology (CDT) code D9941 in a way that violates 130 C.M.R. § 420.456(E) ; and

"Submission of orthodontic claims for payment from MassHealth in violation of 130 C.M.R. § 420.421(A)."

After receipt of the CID, Rizkallah's counsel sought further detail regarding the conduct under investigation relating to the second issue referenced -- 130 Code Mass. Regs. § 420.421(A) (2017). In response, an Assistant Attorney General wrote in an e-mail that "we are investigating the medical necessity of the length of time orthodontic patients of the Rizkallah Practices are in braces."

Thereafter, Rizkallah filed the two pleadings that are the subject of this appeal. The first was the motion for protective order as to the CID, in which he argued (1) that the AGO had not met the requirement of G. L. c. 12, § 5N (3) (ii), that it state "the nature of the conduct ... under investigation," and (2) that the request was in any event unduly burdensome. At the same time, Rizkallah also filed the declaratory judgment complaint naming as the defendant the Attorney General. The declaratory judgment complaint set forth many of the above facts, and, among other things, requested: "a binding declaration of Dr. Rizkallah's right to bill the mouthguards as he has always done and to bill patients directly for any service that is not covered by MassHealth."

On February 14, 2020, a Superior Court judge denied the motion for protective order and allowed the AGO's cross motion to compel (CID production order), reasoning that the AGO had "informed [Rizkallah] of the specific [r]egulations that relate to this investigation [and] referenced the specific billing codes[,] i.e., the type of procedures being investigated." The judge also concluded that a request for 220 patient files was not unduly burdensome. A few months later, on May 26, 2020, a different Superior Court judge allowed the AGO's motion to dismiss the declaratory judgment complaint. The judge stated several grounds for dismissal, including "the absence of an actual controversy at present," and "the intrusiveness of this action on the AGO's investigative discretion." The judge declined Rizkallah's suggestion that the judge should stay the action rather than dismiss it, stating among other things that he lacked "jurisdiction to adjudicate the declaratory judgment claim."

Rizkallah noticed an appeal on June 24, 2020. Importantly, in June 2020 Rizkallah also complied with the CID, produced the requested documents, and submitted a certification to the AGO that the production was complete. Some eight months later, on February 25, 2021, the AGO filed a complaint in Superior Court against Rizkallah under the False Claims Act, alleging among other things that Rizkallah has been improperly billing MassHealth for mouthguards. That action is pending.

Discussion. 1. The CID production order. Rizkallah's effort to overturn the CID production order fails for multiple reasons. First, the appeal is moot as to that order. Rizkallah produced the documents over one year ago. The AGO has since instituted a civil proceeding. A case is moot if a court can order "no further effective relief" (citation omitted). Branch v. Commonwealth Employment Relations Bd., 481 Mass. 810, 817, 120 N.E.3d 1163 (2019), cert. denied, ––– U.S. ––––, 140 S. Ct. 858, 205 L.Ed.2d 456 (2020). Here, there does not appear to be meaningful relief that can now be granted with respect to the documents, even if Rizkallah were correct that the CID production order was issued in error.⁴

Even were we to reach the merits, however, Rizkallah's complaints about the CID are not well taken. General Laws c. 12, § 5N (3) (ii), requires the AGO to advise the CID recipient of the "nature of the conduct constituting the alleged violation." The AGO's CID met this requirement -- the AGO identified by billing code the charges it was concerned about, and specified the regulation that might be violated. When asked, the AGO provided further detail regarding the conduct at issue for a second type of violation. From this information, Rizkallah knew that the AGO was looking at particular conduct -- his practices in providing and billing for mouthguards, and in maintaining patients in braces. He also knew what law the AGO was relying upon. No more was required. G. L. c. 12, § 5N (3).

Nor was the request unduly burdensome. A request for 220 specific files was appropriately targeted, particularly for practices the size of Rizkallah's. Cf. Exxon Mobil Corp. v. Attorney Gen., 479 Mass. 312, 326, 94 N.E.3d 786 (2018), cert. denied, ––– U.S. ––––, 139 S. Ct. 794, 202 L.Ed.2d 570 (2019) (CID requesting records spanning forty years not unduly burdensome under the circumstances). Moreover, and more fundamentally, there is no merit in any event to Rizkallah's complaint about having to turn over documents in response to a tailored request regarding the basis for his billings to MassHealth. By law, Rizkallah must create and maintain such records, and he is required by regulation to turn over such records to MassHealth or the AGO "on request." 130 Code Mass. Regs. §§ 450.205(A), 450.223(C)(3) (2017). It should come as no surprise that MassHealth or the AGO may, from time to time, conduct a review of a provider's files to evaluate whether the Commonwealth is being properly billed for services. That is in essence what the AGO's investigation seeks to do.⁵ Accordingly, there was no error in the denial of the motion for protective order.

2. The declaratory judgment action. While Rizkallah's objection to the CID was properly rejected, we reach a different conclusion as to the dismissal of the declaratory judgment complaint. On its face, the declaratory judgment complaint not only requested relief with respect to the pending CID, but also requested relief that went to the heart of a pending dispute -- that is, Rizkallah sought a declaration that he had a right to bill for mouthguards "as he has always done." MassHealth was withholding reimbursement for mouthguards from Rizkallah at the time. Under those circumstances a suit for a declaratory judgment -- or indeed, a suit seeking payment of monies owed (which was not requested in the complaint) -- would seem to be an entirely appropriate means to resolve such a dispute.

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