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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Smart v. State, Dept of Health & Social Services (8/20/2010) sp-6502
Notice: This opinion is subject to correction before
publication in the Pacific Reporter. Readers are
requested to bring errors to the attention of the Clerk
of the Appellate Courts, 303 K Street, Anchorage,
Alaska 99501, phone (907) 264-0608, fax (907) 264-0878,
e-mail corrections@appellate.courts.state.ak.us.
THE SUPREME COURT OF THE STATE OF ALASKA
| KEIRSTEN SMART, on behalf of | ) |
| herself and all those similarly situated, | ) Supreme Court No. S-13438 |
| ) | |
| Appellant, | ) Superior Court No. 3AN-07-09827 CI |
| ) | |
| v. | ) O P I N I O N |
| ) | |
| STATE OF ALASKA, | ) No. 6502 August 20, 2010 |
| DEPARTMENT OF HEALTH AND | ) |
| SOCIAL SERVICES, KARLEEN | ) |
| JACKSON, in her official capacity as | ) |
| Commissioner of the Department, | ) |
| DIVISION OF HEALTH CARE | ) |
| SERVICES, and WILLIAM STREUR, | ) |
| in his official capacity as Deputy | ) |
| Commissioner of the Division, | ) |
| ) | |
| Appellees. | ) |
| ) | |
Appeal from the
Superior Court of the State of Alaska, Third
Judicial District, Anchorage, Sen K. Tan,
Judge.
Appearances: James J. Davis, Jr., Goriune
Dudukgian, and Ryan Fortson, Northern Justice
Project, Anchorage, for Appellant. Megan R.
Webb, Assistant Attorney General, Anchorage,
and Daniel S. Sullivan, Attorney General,
Juneau, for Appellees.
Before: Carpeneti, Chief Justice, Fabe,
Winfree, Christen, and Stowers, Justices.
FABE, Justice.
I. INTRODUCTION
The State of Alaska Department of Health and Social
Services (DHSS) is authorized by regulation to use statistically
valid sampling methodologies to calculate overpayments made to
providers of Medicaid services who are subject to audit. DHSS
created a protocol that details its auditing methodology, and an
independent auditor used this protocol in the audit of Medicaid
provider Keirsten Smart. At the conclusion of the audit process,
DHSS sought to recoup overpayments made to Smart. Smart did not
appeal the final audit results or recoupment decision to DHSS but
instead brought a lawsuit in superior court, alleging that DHSS
violated her due process rights and that the protocol used in her
audit should have been promulgated as a regulation under the
Alaska Administrative Procedure Act (APA). The superior court
dismissed the lawsuit, concluding that Smarts due process
challenges were barred because she had failed to exhaust her
administrative remedies and that the protocol did not constitute
a regulation under the APA.
Because DHSS failed as a matter of law to provide Smart
with adequate notice of its recoupment decision and her right to
appeal, we remand the case with instructions that the superior
court order DHSS to provide Smart an opportunity to request
administrative review of DHSSs recoupment decision. We also take
this opportunity to affirm the superior courts holding that the
protocol does not constitute a regulation and therefore need not
have been promulgated under the APA.
II. FACTS AND PROCEEDINGS
A. Medicaid Auditing Procedures
As we recently explained:
The Medicaid program is a cooperative federal-
state partnership under which participating
states provide federally-funded medical
services to needy individuals. A states
participation in the Medicaid program is
voluntary, but once a state decides to
participate, it must comply with federal
statutory and regulatory requirements.
Alaska participates in the Medicaid program,
and DHSS promulgated regulations in 7 Alaska
Administrative Code (AAC) 43 to implement and
administer it.[1]
Federal law requires that states receiving Medicaid
funds audit payments to Medicaid providers.2 The Alaska
Legislature enacted a law in 2003 requiring DHSS to annually
contract for independent audits of a statewide sample of all
medical assistance providers in order to identify overpayments
and violations of criminal statutes.3 When overpayments are
identified, DHSS must begin procedures to recoup the overpayment
amount.4 A Medicaid provider that fails to refund overpayments
to DHSS is subject to sanctions, including termination from
participation in the Medicaid program.5
In 2006 DHSS passed a regulation providing that it may
use statistically valid sampling methodologies to select Medicaid
claims for review or audit and to calculate overpayment amounts
to providers.6 In promulgating this regulation under the APA,
DHSS received several comments asking it to elaborate on the
meaning of statistically valid sampling methodologies. In
response, DHSS stated that the methodology is always open for
inspection and conforms to industry standards. Providers are
made aware of this at the beginning of the [auditing] process.
During discovery, DHSS provided Smart with a protocol
governing audits (the Protocol). The Protocol details how
auditors are to determine the universe of a Medicaid providers
claims; select sample claims from that universe; determine
overall overpayments to the provider based on overpayments in the
sample claims (a process known as extrapolation); and validate
their procedures.
B. Audit of Keirsten Smart
Smart is a self-employed care coordinator who provides
medical assistance to Medicaid-eligible individuals through a
program that allows individuals who would otherwise be
institutionalized to remain in their communities or their homes.
In order to receive Medicaid payments from DHSS, Smart was
required to sign an enrollment form in which she agreed to comply
with all applicable review and audit regulations and regulations
relating to recoupment/recovery of overpayment. In March 2006
DHSS informed Smart that she would be subject to an audit by the
independent auditor Myers and Stauffer LC, who communicated
directly with Smart the following month. Neither letter discussed
how Smart was selected for an audit or the statistical
methodology to be used. The audit, covering the period of
April 1, 2004 through March 31, 2005, included 474 Medicaid
claims resulting in payments by DHSS of $102,310.
In May 2007, based on documents that Smart submitted,
Myers and Stauffer issued preliminary findings identifying
overpayments in the amount of $1,040 among the sample claims it
reviewed. Smart sent further documentation to Myers and Stauffer
explaining the Medicaid claims identified as overpayments within
30 days of receiving this letter. The firm then withdrew all but
one finding of overpayment in the amount of $240. Smart had
refunded the $240 payment in September 2006, early in the audit
process.
On June 28, 2007, DHSS sent Smart a letter attaching a
final audit report that identified the period audited, the total
number of claims submitted during that period, and the total
payment by DHSS; however, the letter did not explicitly state the
overpayment amount that DHSS intended to recoup or even that DHSS
intended to recoup money. The letter informed Smart that she
could appeal the results of the final audit by submitting a
written request to the commissioner of DHSS identifying the
challenged audit and the basis for the challenge and including
any documentation she wished the commissioner to consider. Smart
did not appeal.
The attached final audit report, prepared by Myers and
Stauffer, found that based on a statistically valid extrapolation
of estimated Medicaid overpayments [in the amount of $240] . . .
[the t]otal extrapolated overpayments for the provider for the
time period April 1, 2004 to March 31, 2005 are $2,370.00. The
DHSS letter and final audit report did not include a copy of the
Protocol used by Myers and Stauffer.7 Rather, the report stated
that the audit was conducted in accordance with attestation
standards set forth in Government Auditing Standards (2003
Revision) . . . [and t]he full text of the procedures are
contained in the [DHSS] Medicaid Provider Payment Audit Program.
The report also included a Statistical Report as an appendix that
provided raw numbers from the audit and showed the basic
calculations that resulted in the extrapolated overpayment amount
multiplying the sample average overpayment per claim by the total
number of claims.
On August 6, 2007, DHSS sent Smart a letter demanding
payment of $2,370 within 30 days of receipt of the letter. The
letter stated that the assessment constituted a final agency
decision and provided no opportunity for administrative review of
the recoupment decision.
C. Proceedings
Smart filed a putative class action complaint against
DHSS on September 7, 2007, which she amended several months
later. She asserted two claims. First, she alleged that DHSS
violated the APA by failing to promulgate its method for
conducting audits of Medicaid providers as a regulation and that
the use of that method is therefore invalid. Second, she alleged
that DHSS violates the due process rights of Medicaid providers
by issuing notices of recoupment decisions that do not provide
the factual and legal bases for the proposed recoupment and by
failing to afford providers a right to a hearing. Among other
forms of relief, Smart sought disgorgement of any funds DHSS had
recouped from Medicaid providers pursuant to the challenged
methodology.
DHSS moved to dismiss Smarts complaint, or in the
alternative for summary judgment, arguing that: (1) the lawsuit
is barred by Smarts failure to exhaust her administrative
remedies; (2) DHSS complied with the APA because its methodology
is not a regulation subject to the APA; and (3) DHSS did not
violate Smarts due process rights because it provided her with
notice of its audit procedures and regulations and would have
provided her with a hearing had she appealed her audit results.
Smart filed an opposition to the motion to dismiss and cross-
moved for summary judgment on her claims.
The superior court granted DHSSs motion to dismiss and
denied Smarts cross-motion for summary judgment. It found that
DHSSs auditing methodology did not constitute a regulation under
the APA and that, despite there being genuine questions regarding
the adequacy of DHSSs notice and appeals process, Smart waived
her right to raise these issues by failing to exhaust her
administrative remedies. Smart appeals.
III. STANDARD OF REVIEW
Whether a type of claim generally requires exhaustion
of administrative remedies is a legal question that we review de
novo.8 We review for abuse of discretion a determination of
whether a plaintiff exhausted those remedies or whether the
failure to exhaust should be excused.9 If a court finds no
effective remedy is available, it will generally be an abuse of
discretion to require exhaustion of remedies.10
We review de novo questions of statutory and
constitutional construction . . . , adopting the rule of law that
is most persuasive in light of precedent, reason, and policy.11
This includes whether an agencys notice and hearing procedures
comply with due process12 and whether an agency action constitutes
a regulation that must be promulgated in compliance with the APA.13
IV. DISCUSSION
A. DHSS Provided Defective Notice To Smart And Therefore
Must Provide Her A New Opportunity To Challenge Its
Recoupment Decision.
Pursuant to 7 AAC 43.1490,14 Medicaid providers such as
Smart were able to appeal the findings of a final audit and a
determination of overpayment. A two-paragraph notice DHSS sent
to Smart referenced this regulation and informed Smart that she
had 30 days in which to appeal the results of the attached final
audit report. Smart did not file an appeal. Instead, after
receiving a letter from DHSS more than 30 days later demanding
repayment of $2,370, she filed a lawsuit in superior court.
DHSS moved to dismiss Smarts complaint on the ground
that, by failing to file an appeal to the agency, she had not
properly exhausted her administrative remedies. The superior
court agreed in part, concluding that Smart was required to first
exhaust her administrative remedies before filing an independent
[due process] claim against DHSS. It found that she had failed
to do so and that the failure was not excused, and therefore
declined to address the merits of her due process claims,
although it ruled on her APA claim.
Where, as here, a regulation provides for
administrative review of an agency decision, a person ordinarily
must exhaust such administrative remedies before bringing an
action in superior court challenging the decision.15 We have
noted that the basic purpose of the doctrine of exhaustion of
administrative remedies is to allow an administrative agency to
perform functions within its special competence to make a
factual record, to apply its expertise, and to correct its own
errors so as to moot judicial controversies. 16 By permitting an
agency to correct its errors and a complainant to obtain relief
without judicial intervention, the administrative exhaustion
requirement promotes both administrative autonomy and judicial
economy.17
The period during which a party may seek administrative
review of an agency decision, and thereby exhaust administrative
remedies, commences once the party has sufficient notice to
challenge the decision. To be adequate for this purpose, notice
must clearly identify the proposed agency action and the partys
right to seek administrative relief.18 But to comply with due
process, notice must also be reasonably calculated, under all the
circumstances, to inform interested parties of action affecting
their property rights.19 As we have held in the similar context
of recoupment of overpayment to foster parents, due process
requires notice of recoupment of overpayment to include specific
factual reasons and legal authority for the recoupment and []
also inform the [recipients] of their right to contest the
decision.20
Smart argues that DHSSs notice failed even to apprise
her of how much DHSS sought to recoup and was constitutionally
defective. She contends that DHSSs notice violated her due
process rights by failing to inform her of: (1) why she was
selected for the audit; (2) the methodology that was used for the
audit; and (3) how DHSS calculated its repayment demand.
Smart received a total of six separate communications
from DHSS and Myers and Stauffer. These communications failed to
provide Smart with adequate and timely notice of DHSSs proposed
recoupment decision before Smarts right to appeal this decision
had expired. The June 28, 2007 letter informed Smart of her
right to appeal within 30 days the results of the attached final
audit report, but did not state that DHSS had reached a
recoupment decision and intended to recoup an extrapolated
overpayment amount of $2,370. The five-page audit report
referenced this extrapolated amount on its final page, but
nowhere in the audit report, accompanying letter, or any prior
communication, did DHSS or Myers and Stauffer inform Smart that
she would be responsible for an extrapolated rather than
overpayment amount.21 DHSSs first clear statement that it
intended to recoup $2,370 from Smart came in a letter dated
August 6, 2007, after 30 days had passed. The letter, titled
NOTICE OF MEDICAID OVERPAYMENT RECOUPMENT, explained that because
Smart had failed to timely appeal her audit findings, the
recoupment decision constituted a final agency decision. Thus,
Smart was not clearly informed of DHSSs proposed recoupment of
$2,370 before her right to seek administrative relief had
expired.
Moreover, none of the communications included the
statistical methodology used by the auditor and described in the
Protocol. For example, the communications did not explain how
the auditor defined the universe of claims, determined the sample
size, verified the sampling procedures, or extrapolated
overpayments to the universe. The final audit report included an
appendix disclosing the raw numbers and basic calculations used
to determine the total extrapolated overpayment amount but did
not explain these calculations in simple language.
When reviewed in their totality, the communications
were insufficient to permit Smart to challenge DHSSs recoupment
decision. DHSS failed to communicate to Smart in a timely manner
the amount it sought to recoup and whether this determination was
based on statistically valid sampling methodologies. As a
result, Smart was unable to challenge DHSSs overpayment
determination. The burden on DHSS of correcting this defective
notice and complying with due process is minimal: DHSS must
clearly state the calculated overpayment amount and the right to
appeal in the same notice and attach the Protocol to the notice.22
By doing so, Medicaid providers will be able to more easily
understand whether the recoupment is justified, identify the
specific facts in dispute, and resolve potential errors.23
For the foregoing reasons, we hold that DHSSs notice to
Smart did not comply with due process and did not provide even
the minimal information necessary to commence the period during
which Smart could seek administrative review. Smart now has the
information to which she was entitled: she has been informed of
the intended recoupment amount in the final DHSS notice and has
obtained the Protocol through discovery.24 Now that she has
received this information, DHSS must provide her with an
opportunity to challenge its recoupment decision. We therefore
remand this case to the superior court with instructions to
direct DHSS to provide Smart 30 days in which to request
administrative review of DHSSs recoupment decision.25
B. The Protocol Is Not A Regulation That Needed To Be
Promulgated Pursuant To The APA.
We address one additional issue that can be determined
as a matter of law and would not benefit from further development
at the administrative level. Smart argues that the Protocol is a
regulation and that DHSS was required to comply with the APA
process for adopting new regulations. The APA lays out the
minimum procedural requirements for the adoption, amendment, or
repeal of administrative regulations, including notice and an
opportunity for public comment on the proposed agency action.26
The APA is meant to reduce the risk of arbitrary application and
to inform the public of regulations.27 It is undisputed that DHSS
did not promulgate the Protocol in compliance with the APA. The
only question is whether the Protocol constitutes a regulation
under the APA such that compliance was required. If it does
constitute a regulation, as Smart argues, then the failure of
DHSS to satisfy the procedural requirements of the APA would
render its implementation of the Protocol invalid.28
Smart argues that the Protocol is a regulation because
it is not a common- sense interpretation of the term
statistically valid sampling methodologies, but rather involve[d]
a number of unpublicized, result-driving policy decisions that
should have received public input and were unforeseeable even by
a highly trained statistician. DHSS responds that the Protocol
is merely the implementation of a policy decision and a formulaic
tool used by the auditor to calculate a Medicaid providers
overpayment. DHSS also argues that the Protocol does not create
any new substantive requirements, as Medicaid providers are
already required to retain and submit documentation upon request
and return overpayments. We believe that DHSS has the better
argument.
[T]he legislature intended for the term regulation to
encompass a variety of statements made by agencies.29 Alaska
Statute 44.62.640(a)(3) defines regulation broadly as:
every rule, regulation, order, or standard of
general application . . . adopted by a state
agency to implement, interpret, or make
specific the law enforced or administered by
it, . . . includ[ing] manuals, policies,
instructions, guides to enforcement,
interpretive bulletins, interpretations, and
the like, that have the effect of rules,
orders, regulations, or standards of general
application . . . ; whether a regulation,
regardless of name, is covered by this
chapter depends in part on whether it affects
the public or is used by the agency in
dealing with the public[.]
Although the definition of regulation is broad, it does
not encompass every routine, predictable interpretation of a
statute by an agency.30 Because [n]early every agency action is
based, implicitly or explicitly, on an interpretation of a
statute or regulation, subjecting every interpretation to the
procedural requirements of the APA would result in complete
ossification of the regulatory state.31 Thus, in Alaska Center
for the Environment v. State, we rejected a plaintiffs
characterization of the Office of Management and Budgets
interpretation of the term major energy facility as a regulation
that should have been promulgated pursuant to the APA.32 We held
that it was not an APA regulation but merely a common sense
interpretation of a regulation according to its own terms that
imposed no new substantive requirements nor made existing ones
any more specific.33
DHSSs interpretation of statistically valid sampling
methodologies, like the Office of Management and Budgets
interpretation of the term major energy facility, is a common
sense interpretation of a regulation. While formulation of the
Protocol may have involved policy decisions, Smarts expert
conceded that the Protocol uses a formula [that] appears in all
statistics books to calculate the appropriate sample size.
Furthermore, the method of calculating overpayments outlined in
the Protocol does not impose any new substantive requirements.34
Pursuant to statute and DHSS regulations, Medicaid providers are
required to keep records, provide them to auditors, and reimburse
overpayments identified in audits.35 Finally, given the
requirement that DHSS use audit methods that are statistically
valid, we do not believe there is a meaningful risk that DHSS
will vary its audit requirements at whim or based on improper
influences.36 Any such risk is mitigated by the disclosure of the
audit methodology to Medicaid providers subject to audit, as
required by this opinion.
We therefore hold that the Protocol is not a regulation
that must be promulgated pursuant to the APA. DHSSs properly
promulgated regulation authorizing the use of statistically valid
sampling methodologies is sufficient.
V. CONCLUSION
For the foregoing reasons, we REVERSE the superior
courts dismissal of Smarts due process claims for failure to
exhaust administrative remedies and REMAND this case to the
superior court with instructions to direct DHSS to provide Smart
30 days in which to request review of DHSSs recoupment decision.
We AFFIRM the superior courts dismissal of Smarts APA claim.
_______________________________
1 Hidden Heights Assisted Living, Inc. v. State, Dept of
Health & Soc. Servs., 222 P.3d 258, 261 (Alaska 2009) (quoting
Garner v. State, Dept of Health & Soc. Servs., Div. of Med.
Assistance, 63 P.3d 264, 268 (Alaska 2003)).
2 See 42 U.S.C. 1396a(a)(42) (2009); 42 C.F.R. 447.202
(2010).
3 AS 47.05.200(a), adopted by ch. 66, 3, SLA 2003.
Audit is defined by regulation as the process of obtaining
competent evidentiary material about a provider through
inspection, observation, inquiry, and confirmation sufficient to
support a reasonable basis for determining the providers
compliance with the legal requirements of the Medicaid program.
7 AAC 160.110(i)(1).
4 See AS 47.05.200(b).
5 See 7 AAC 105.400(21); 7 AAC 105.410(a)(1).
6 7 AAC 43.1470 (repealed 2010). In February 2010 this
regulation was replaced by a nearly identical regulation found at
7 AAC 160.120.
7 The final line of the Protocol provided to Smart during
discovery states: All of the above is provided to the provider in
the final audit report so that the math and assumptions can be
tested. This was not true in Smarts case.
8 State, Dept of Revenue v. Andrade, 23 P.3d 58, 65
(Alaska 2001).
9 Id.
10 Hymes v. DeRamus, 222 P.3d 874, 883 (Alaska 2010).
11 Pepper v. Routh Crabtree, APC, 219 P.3d 1017, 1020
(Alaska 2009).
12 Heitz v. State, Dept of Health & Soc. Servs., 215 P.3d
302, 305 (Alaska 2009).
13 Alaska Ctr. for the Envt v. State, 80 P.3d 231, 243
(Alaska 2003).
14 In February 2010 this regulation was replaced by a
nearly identical regulation found at 7 AAC 160.130.
15 Matanuska Elec. Assn, Inc. v. Chugach Elec. Assn, Inc.,
99 P.3d 553, 560 (Alaska 2004) (A party must generally exhaust
administrative remedies before bringing an action challenging an
agency decision; this allows the agency to apply its expertise
and correct its own errors.); Mount Juneau Enters. v. City &
Borough of Juneau, 923 P.2d 768, 777 (Alaska 1996) (Since an
administrative appeal is clearly provided for, exhaustion of
remedies is required in this case.).
16 Mount Juneau Enters., 923 P.2d at 776-77 (quoting Ben
Lomond, Inc. v. Municipality of Anchorage, 761 P.2d 119, 122
(Alaska 1988)).
17 See State, Dept of Labor, Wage & Hour Div. v. Univ. of
Alaska, 664 P.2d 575, 581 (Alaska 1983) (The doctrine of
exhaustion of administrative remedies is an expression of
administrative autonomy and a rule of sound judicial
administration. (citing B. Schwartz, Administrative Law 172, at
498 (1976))); Eidelson v. Archer, 645 P.2d 171, 176 (Alaska 1982)
(A complaining party may be successful in vindicating his rights
in the administrative process. If he is required to pursue his
administrative remedies, the courts may never have to intervene.
(quoting McKart v. United States, 395 U.S. 185, 194-95 (1969))).
18 Cf. Alaska R. App. P. 602(a)(2) (stating that the 30-
day time limit for appealing agency decisions to superior court
does not begin to run until the agency has issued a decision that
clearly states that it is a final decision and that the claimant
has [30] days to appeal); 7 AAC 105.260(d), (f)(3) (requiring
recoupment notice for overpayments other than those identified in
audits to include: (1) the reason for the recoupment; (2) the
amount of the overpayment that the department will recoup; and
(3) notice of the providers right to an appeal).
19 City of Homer v. Campbell, 719 P.2d 683, 686 (Alaska
1986) (citing Mullane v. Cent. Hanover Bank & Trust, 339 U.S.
306, 314 (1950)).
20 Heitz v. State, Dept of Health & Soc. Servs., 215 P.3d
302, 308 (Alaska 2009); see also Baker v. State, Dept of Health &
Soc. Servs., 191 P.3d 1005, 1009-13 (Alaska 2008).
21 Smart had already refunded the one actual overpayment
identified by the audit, in the amount of $240, long before
receiving this letter from DHSS and thus had little incentive to
challenge the final audit report.
22 See Baker, 191 P.3d at 1009-13 (holding that due
process required notice of reduction of authorized hours of
personal care attendant services to include the form that
provided the basis for calculating benefits).
23 Heitz, 215 P.3d at 307; see also Allen v. State, Dept
of Health & Soc. Servs., Div. of Pub. Assistance, 203 P.3d 1155,
1167-68 (Alaska 2009) (holding that adequate notice should allow
its recipient to assess whether or not the agencys calculations
are accurate and to detect and challenge mistakes).
24 It would thus serve little purpose to order DHSS to
reissue due process-compliant notice to Smart and we decline to
do so. Cf. Allen, 203 P.3d at 1169-70 (ordering agency, if it
wished to pursue recoupment claim, to issue adequate notice
showing how the claim was calculated).
25 Smart also contends that DHSSs failure to afford
audited Medicaid providers with a right to a pre-deprivation
hearing violates due process. According to DHSS, it has provided
such hearings since 2008, when a superior court determined that
pre-deprivation hearings were required by due process. See
Muhlenbruch v. State, Dept of Health & Soc. Servs., Div. of
Health Care Servs., No. 3AN-06-12098 CI (Alaska Super., Feb. 12,
2008). DHSS did not appeal that ruling and concedes in its brief
that it is legally bound by the ruling. DHSS further suggests
that Smarts audit would have been held in abeyance had she filed
an appeal of the final audit report and that she would eventually
have been provided a hearing before the Office of Administrative
Hearing under DHSSs new procedures. Because Smart did not appeal
her final audit report, we do not know what process Smart would
have been accorded and whether it would have satisfied due
process. As counsel for Smart conceded at oral argument, we need
not address the hearing issue given DHSSs representations. If
Smart on remand requests review of DHSSs recoupment decision,
DHSS represents that she will be entitled to a hearing.
26 AS 44.62.280. Specifically, an agency must provide
notice of the proposed regulation, AS 44.62.190, hold a public
hearing at which interested persons may submit comments regarding
the proposed regulation, AS 44.62.210, and file any adopted
regulation with the lieutenant governor, AS 44.62.040; the
lieutenant governor must then publish the regulation in the
Alaska Administrative Register, AS 44.62.130.
27 Squires v. Alaska Bd. of Architects, Engrs & Land
Surveyors, 205 P.3d 326, 335 (Alaska 2009).
28 See Jerrel v. State, Dept of Natural Res., 999 P.2d
138, 144 (Alaska 2000).
29 Id. at 143 (citing Messerli v. Dept of Natural Res.,
768 P.2d 1112, 1117 (Alaska 1989)).
30 Alyeska Pipeline Serv. Co. v. State, Dept of Envtl.
Conservation, 145 P.3d 561, 573 (Alaska 2006).
31 Id.
32 80 P.3d 231, 243-44 (Alaska 2003).
33 Id.
34 Cf. Agency for Health Care Admin. v. Custom Mobility,
Inc., 995 So. 2d 984, 986 (Fla. Dist. App. 2008) (The formula
[for calculating overpayment] does not by its own effect create
rights, require compliance, or have the direct and consistent
effect of law, because it is a mere formula and does not give the
service provider any rights, or require compliance.).
35 See AS 47.05.200; 7 AAC 105.220-.240.
36 Jerrel v. State, Dept of Natural Res., 999 P.2d 138,
144 (Alaska 2000).
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