Albuquerque Journal
Ruling: HSD must give hearing;
Psychiatrist denied Medicaid payments
By Deborah Baker
September 5, 2013

Psychiatrist Babak Mirin

Psychiatrist Babak Mirin

SANTA FE – A state district judge ruled Wednesday that a behavioral health provider whose Medicaid payments were suspended by the Human Services Department in early 2012 is entitled to hear the fraud allegations against him and rebut them.

District Judge Raymond Ortiz ruled after a brief hearing that due process requires that Dr. Babak Mirin, a psychiatrist, be granted a hearing by HSD, especially because his payments have been suspended for a year and a half.

Ortiz said the core issue “is whether the payments can be suspended for an indefinite period of time and still pass constitutional muster.”

HSD General Counsel Raymond Mensack said after the hearing that HSD isn’t authorized to conduct administrative hearings on fraud and doesn’t have a mechanism for doing so, and that the matter is where it belongs: in the Attorney General’s Office, which is investigating.

Giving Mirin the information that HSD turned over to the attorney general would have “negative consequences on the criminal investigation,” Mensack told the Journal.

He said HSD is likely to appeal Ortiz’s ruling to the New Mexico Court of Appeals and ask that his order be stayed.

Mirin’s New Mexico Psychiatric Services is not one of the 15 providers suspended in late June after the HSD determined there were credible allegations of fraud against them, but there are parallels between Mirin’s case and the more recent events.

Mensack downplayed the significance of Ortiz’s ruling to the 15 providers, saying their suspensions are only 2 months old and state district court rulings don’t set precedent for other courts. Some of the 15 have a case pending in federal court in which they’re seeking hearings.

But Mirin’s lawyer, Bryan Davis, said he “would argue that this ruling affects every provider in this situation.”

“If I were any other provider in the state in the same circumstance, I would be asking for my hearing from HSD and citing Judge Ortiz’s … legal ruling that the hearing is required,” Davis told the Journal.

The HSD notified Mirin in February 2012 that there was a credible allegation of fraud against him and immediately suspended payments.

“We don’t know where it came from or who it came from or what it was,” Davis said in an interview.
The Medicaid funding was eventually resumed, but Davis told the court that between $400,000 and $600,000 in unpaid claims is still owed to Mirin for services his company provided.

Mirin told the Journal that New Mexico Psychiatric Services, which had five locations and which he described as a network of behavioral health professionals who were independent contractors, has been dismantled.

The HSD argued that it had done the administrative review called for in federal regulations when it decided whether to restore Mirin’s Medicaid funding. But Ortiz said that was not the provider hearing to which Mirin is entitled.