STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
STACEY HEALTH CARE CENTERS, INC. ) d/b/a RIVERSIDE CARE CENTER, )
)
Petitioner, )
vs. ) CASE NO. 87-0924
)
DEPARTMENT OF HEALTH AND )
REHABILITATIVE SERVICES, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, the above matter was heard before the Division of Administrative Hearings by its duly designated Hearing Officer, Donald R. Alexander, on August 3, 1987 in Miami, Florida.
APPEARANCES
For Petitioner: Kenneth S. Handmaker, Esquire
2500 Brown & Williamson Tower Louisville, Kentucky 40202-3410
For Respondent: Theodore E. Mack, Jr., Esquire
Building One, Room 407 1323 Winewood Boulevard
Tallahassee, Florida 32399-0700 BACKGROUND
This Proceeding began when respondent, Department of Health and Rehabilitative Services, issued a letter, audit report and management letter on January 7, 1987, advising petitioner, Stacey Health Care Centers, Inc. d/b/a Riverside Care Center, that petitioner's reimbursable Medicaid costs for the fiscal year ending December 31, 1984, would be adjusted as the result of an agency audit of petitioner's cost report.
By letter dated February 6, 1987, petitioner requested a formal hearing pursuant to Subsection 120.57(1), Florida Statutes (Supp. 1986), to contest eleven of the proposed audit adjustments. As later narrowed by the parties, these included the proposed disallowance of certain lodging and travel expenses incurred by the facility and its home office (items 3, 5, 6 and 15), and the proposed disallowance of certain minor expenses because of a lack of supporting documentation (items 2, 7 and 12). The matter was referred to the Division of Administrative Hearings on March 2, 1987, with a request that a hearing officer be assigned to conduct a formal hearing.
By notice of hearing dated March 23, 1987, a final hearing was scheduled for May 13, 1987 in Miami, Florida. At the request of petitioner, and without objection by respondent, the matter was rescheduled to August 3, 1987 at the
same location. At final hearing petitioner presented the testimony of John T. Donaldson, an HRS audit evaluation and review analyst, and its president and administrator, Ralph L. Stacey, Jr., and offered petitioner's exhibits 1-3. All were received in evidence. Respondent presented the testimony of John T. Donaldson and offered respondent's exhibits 1-3 which were received in evidence. In addition, hearing officer exhibit 1 was received in evidence. Finally, the undersigned took official notice of a document known as HIM-15, and certain federal regulations.
The transcript of hearing was filed on August 24, 1987. Proposed findings of fact and conclusions of law were filed by the parties on September 8, 1987. A ruling on each proposed finding of fact is made in the Appendix attached to this Recommended Order.
The parties have stipulated that the question of adequacy of documentation to support the expenditures need not be addressed, and that only the concepts for approving or disapproving the expenditures are in issue./1 Within this broad framework, then, the issue is whether petitioner's reimbursable costs for participation in the Medicaid program in fiscal year ending December 31, 1984, should be reduced as proposed in respondent's audit report.
Based upon all of the evidence, the following findings of fact are determined:
FINDINGS OF FACT
Introduction
Petitioner, Stacey Health Care Centers, Inc. d/b/a Riverside Care Center (RCC or petitioner), operates an eighty bed nursing home at 899 Northwest Fourth Street, Miami, Florida. The facility is licensed by respondent, Department of Health and Rehabilitative Services (HRS). At all times relevant hereto, RCC was a participant in the Florida Medicaid Program. The facility has been in operation since March, 1983, and has always attained a superior rating. In July, 1984 it filled all eighty beds and has remained full since that time.
As a Medicaid participant, RCC was required to submit to HRS a cost report for the fiscal year ending December 31, 1984. This was filed in the latter part of March, 1985. The report sets forth those costs which RCC claims it incurred in providing Medicaid services during the fiscal year.
In 1985, HRS contracted with Grant Thornton, an independent accounting firm, to perform a field audit of RCC's books and records to verify whether RCC's reported costs for fiscal year 1984 were proper expenditures and therefore reimbursable. On May 7, 1986 an audit report and management letter were issued by Grant Thornton proposing that RCC's cost report be adjusted in nineteen respects. The report and letter were later forwarded by HRS to RCC on January 7, 1987. Contending that seven of the adjustments (2, 3, 5, 6, 7, 12 and 15) were not appropriate or justified, RCC requested a formal hearing to contest the report. This resulted in the instant proceeding.
Audit Principles and Guidelines
Under the Medicaid contract entered into by RCC and HRS, the provider agreed to conform with all pertinent rules and regulations governing Medicaid providers. These include, in order of importance, (a) relevant agency rules codified in the Florida Administrative Code, (b) the Florida Title XIX Long-Term
Care Reimbursement Plan (Long Term Plan) then in effect, (c) the Health Insurance Manual (HIM-15), which is a compendium of federal cost reimbursement principles for nursing homes, and (d) where applicable, generally accepted accounting principles (GAAP).
Of particular relevance to this proceeding is Subsection III.G.1. of the September 1, 1984 Long Term Plan which provides that "the 0wner administrator . . . compensation will be limited to reasonable levels determined in accordance with HIM-15." The latter document utilizes Bureau of Health Insurance (BHI)/2 data to determine reasonable compensation for owner- administrators in other similar sized institutions in the same geographic area. From this data, a cap or limitation is derived, and any owner compensation above this cap is disallowed and not reimbursed. The theory behind this cap is that an owner- administrator should receive no more compensation than does a non- owner administrator. Also relevant is the so-called prudent buyer concept embodied in section 2103 of HIM-15. Paragraph A of that section provides in part that "the prudent and cost- conscious buyer not only refuses to pay more than the going price for an item or service, he also seeks to economize by minimizing cost." Put another way, the buyer will pay no more than is necessary to procure a supply or service and if he does not, the expense is disallowed.
The Concept of Hateriality (Items 2, 7 and 12)
The audit report proposes to disallow items 2, 7 and 12 on the ground RCC did not provide adequate documentation to support the expenditures. In sum, the three items total $145. The parties have stipulated that the issue of adequate documentation is not yet ripe. Even so, petitioner suggests the expenses should be allowed since they are "immaterial to the overall cost report." However, the testimony herein reflects that even though an item is immaterial, it may still be disallowed if not in compliance with pertinent regulations. Put another way, there is no regulation or rule which requires an expenditure to be automatically approved simply because it is immaterial. Therefore, the proposed adjustments are proper.
Owner's Compensation (Items 3, 5, 6 and 15)
Corporate structure
The majority (95 percent) of the capital stock of RCC is owned by Stacey Enterprises, Inc. (SEI) located in Cincinnati, Ohio. SEI also owns and operates a 63-bed skilled nursing facility, Gerrard Convalescent Home (GCH), in Covington, Kentucky which is subject to that state's regulatory jurisdiction. Under this corporate structure, which is called a "chain organization" in federal bureaucratese, SEI is considered to be a "home office" providing certain administrative and support functions to RCC. In theory, a home office managing more than one facility should be more efficient than a nursing home that provides its own administrative functions. This is because a home office should reduce costs through economy of scale. In the health care industry, a home office may provide such services as purchasing, personnel, payroll, accounting, computer, and the like.
Ralph L. Stacey, Jr. (Stacey), who resides in Covington, Kentucky, is the president and sole stockholder of SEI. He is licensed as a nursing home administrator in Florida and Kentucky, and serves in that capacity at both RCC and GCH. However, in 1984 he had another full-time licensed administrator at RCC and consequently did not claim reimbursement for a full- time salary at either facility. Stacey is also the sole employee of the home office. As such,
his duties for the three entities (RCC, GCH and SEI) overlap, and coupled with his place of residence, constitute the source of this controversy.
Filing requirements
Because of the chain organizational setup, HRS required the provider to file two annual cost reports, one in the name of RCC and the other by SEI as the home office. Both purported to reflect those costs which were properly allocated to Florida operations and were therefore reimbursable under the Florida Medicaid program. However, since the RCC report contains Florida's allocated portion of home office costs, the HRS audit refers only to RCC's 1984 Medicaid cost report.
Content of two reports
Since SEI claims it provided services in 1984 to both RCC and GCH, an allocation of its regulatory expenses ($7,504) was necessary in order to determine what portion applied to Florida operations. To do this, and for purposes of filing the home office report, SEI developed a ratio based on total patient days of the two facilities, an accepted method for making such an allocation. After removing $139 in non-regulatory expenses, SEI then allocated
54.4 percent of the remaining home office expenses to RCC, or a total of $4,007. Of that amount, over ninety-seven percent fell within the category of "travel." Included within this category are $2,103 in airline tickets, while the make up of the remaining expenses has not been identified. However, the parties have suggested they include primarily "living" expenses incurred by Stacey while living part- time in Miami in 1984. All were ostensibly incurred while Stacey served in the role of a home office employee. The home office charges are referred to on the audit report as adjustment number 5.
In addition to the home office charges, RCC's cost report claims reimbursement for a pro rate portion of expenses incurred by Stacey while serving as administrator for both RCC and GCH in 1984. To allocate these costs, Stacey determined the amount of time devoted to each facility, and then assigned appropriate portions of his total expenses to each operation. The precise factor used is not of record. It is noted that the audit report classifies these expenses into three categories (gas and electric, other travel and rent) while the witnesses referred to them as rent, meals, utilities, motor vehicle expenses, supplies, salary, and other miscellaneous items. Whatever their nature, they are reflected on the audit report as adjustment numbers 3, 6 and 15.
The controversy and HRS' Proposed action
The principal controversy herein centers around Stacey's claimed expenses while commuting to and living in Florida in 1984, and which were charged to RCC as administrative costs or as indirect home office charges. The commuting was necessary since Stacey's primary residence was Covington, Kentucky, and he was also required to tend to duties as an administrator in Kentucky and a home office employee in Ohio. In its audit report, the agency has proposed to disallow all such costs on the general ground they were not related to patient care, relying principally on Sections 2102.3 and 2304 of HIM-
15 as authority for such action. As clarified at hearing, HRS then relied upon the prudent buyer concept and owner's compensation rule to combine Stacey's travel and lodging expenses and certain other minor items with his salary and treat them as part of owner's compensation. These items are characterized in the audit report as gas and electric charges ($2,114), "other" travel ($9,243),
and rent expense ($5,910), and, as noted above, are identified as adjustments 3,
and 15, respectively.2/ In addition, HRS concluded that all of the home office expenses ($4,007) were violative of the prudent buyer concept since none would be needed if RCC had used a Florida resident as administrator. Accordingly, it reclassified them as owner's compensation on the theory the expenditures benefited the owner and therefore constituted personal compensation to Stacey. These charges (both home office and administrative) collectively totaled
$37,082/4 The agency then utilized what it perceived to be the proper cap under then-applicable BHI guidelines ($33,830) for owner's compensation, and applied a
55.9 percent factor to that amount./5 This produced a cap for RCC in the amount of $18,911. All expenses ($21,274) above that cap were disallowed.
An analysis of the services provided
During 1984, and as reflected in petitioner's exhibit 1, Stacey made numerous trips by airline between Cincinnati and Miami while visiting the RCC facility. Each month Stacey spent between nine and eighteen days in Miami. This is confirmed by his personal calendar introduced in evidence as petitioner's exhibit 1. He also executed a one-year lease on an apartment in Miami on February 1, 1984 at a cost of $465 per month. He did so on the theory it was cheaper to rent than to pay nightly motel charges. However, Stacey acknowledges that if he had elected to spend $50 per day on lodging, he would have spent $7,040, or $984 less than that amount claimed on the cost report for apartment rent and utilities.
While in Miami, Stacey utilized the RCC station wagon to transport patients between the hospital and the facility, for screening purposes, and for errands to purchase supplies. This was not controverted. However, the vehicle was also used by Stacey to carry him from his apartment to the facility and return, a use considered personal by HRS. To separate the two functions, Stacey should have kept a record (e.g. a trip log) to show what part of the usage was personal, and what part was related to patient care. Here no such records were apparently maintained, and consequently a precise allocation cannot be made. But, since documentation is not in issue, this point is not now germane.
In his role as administrator and home office employee, Stacey's duties included staffing the facility, dealing with governmental agencies, developing and implementing policies and procedures, handling payroll and purchasing, and approving vouchers for both reasonableness and payment. The duties and functions, if prudent and necessary, are clearly within the scope of those performed by an administrator and home office employee. However, the record is less than clear as to which duties were performed when and in what capacity.
Reconciling what happened with HRS rules - A cost difficult task
There is no rule or regulation that prohibits a Florida nursing home from employing a nonresident administrator. /6 Moreover, it is not uncommon for an administrator to serve in that capacity at more than one facility. At the same time HRS routinely reimburses a provider for legitimate, reasonable home office expenses such as travel, lodging and administrative functions that are incurred while performing necessary support.
Notwithstanding the lack of a rule that prohibits Stacey from being administrator, his position must be viewed in light of the prudent buyer concept. Under this concept, Stacey must show that it is more efficient and economical to utilize his services as administrator than to hire one who lives
in the Miami area. In this regard, the proof is lacking. More Specifically, other than self-serving statements that this type of setup was more economical and efficient, Stacey did not provide any concrete evidence that contradicted the testimony of HRS witness Donaldson./7 This is especially true since Stacey already had a full-time licensed administrator (Tim Newren) on RCC's payroll who was able to run RCC's day-to-day operations in Stacey's absence. Indeed, their functions seemed to be duplicative in nature, and Stacey, when asked to describe Newren's duties when both were in Miami, indicated that Newren "consults with me." There was also no evidence to show that Stacey performed special services that Newren could not, or that it was necessary he be in Florida around twelve days each month, particularly since Stacey acknowledged he was in daily telephonic contact with Newren when in Ohio and Kentucky. Therefore, with one exception noted hereinafter, the expenditures in adjustments 3, 6 and 15 were not prudent and were properly disallowed.
As noted earlier, the RCC station wagon was used to transport and screen patients, and for errands related to patient care. Such usage would have occurred even if Stacey had not come to Florida. Because their reasonableness has not been questioned, and the expenses relate to patient care, they should be allowed subject to the provision by RCC of proper documentation.
HRS regulations and acknowledged prior audit policy allow reimbursement for reasonable travel expenses associated with the provision of home office services. However, to prove their legitimacy, they must be shown to be necessary, and to ef- fectuate savings to the provider. In this case, the charges to Florida operations were principally airline tickets for periodic trips to Florida, and living expenses for Stacey while in Miami. Although the record is not altogether clear, these charges were incurred by Stacey to come to Florida where he presumably then performed certain tasks that would normally be provided by a home office. Here again, the provider did not show that it was essential to perform the services in Florida, or that they could not have been performed by Newren. As such, they were not prudent, and should be disallowed.
Finally, HRS utilized the wrong BHI cap in computing compensation to be allowed the owner. Instead of using $35,824, HRS erroneously used the figure of $33,830. The former limitation is the correct amount, and results in an increase in owner's compensation of $1,131.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has juris- diction of the subject matter and the parties thereto pursuant to Subsection 120.57(1), Florida Statutes (Supp. 1986).
Section (1) of Rule 10C-7.0481, Florida Administrative Code (1987), provides that "annual cost reports submitted by providers of nursing home care .
. . are subject to audit at the discretion of the Department." Section (6) of the same rule provides that:
The audit report shall constitute prima facie evidence of the propriety of the adjustments contained therein. The burden of proof is upon the provider to affirmatively demon- strate its entitlement to the Medicaid reimbursement. (Emphasis added)
With this in mind, the evidence and applicable regulations will be reviewed to determine which, if any, of the proposed adjustments should be made.
Seven adjustments are contested by petitioner. Taking adjustments 2,
and 12 first, RCC contends that they should not be made because of their immateriality. However, it has cited no authority to support this proposition other than an oblique reference in its post-hearing memorandum to the truisms of "the statistical review and analysis of internal controls and accounts" under generally accepted accounting principles. However, there has been no cited provision, either conceptually or governmentally imposed, that prohibits the disallowance of expenditures that do not meet Medicaid criteria, no matter how small they might be. Therefore, adjustments 2, 7 and 12 should be made.
Under applicable Medicaid reimbursement rules and regulations, several broad principles apply to this controversy. First, costs must be related to patient care (Section III, Long Term Plan), and they "should not exceed what a prudent and cost- conscious buyer pays for a given service or item." (Section III.C., Long Term Plan; s. 2103, HIM-15). Secondly, where an owner also serves as an administrator or provides administrative support, his "compensation will be limited to reasonable levels determined in accordance with HIM-15." (Section III.G.1., Long Term Plan; s 905.2, HIM-15). Finally, the parties have stipulated that the question of adequacy of supporting documentation is not in issue at this time.
The evidence supports a conclusion that the expenditure of moneys for an out-of-state administrator was not prudent, and therefore violated the prudent buyer concept in the Long Term Plan and HIM-15. However, the motor vehicle expenditures were a necessary expense, and would have been incurred whether Stacey or Newren served as administrator. This is because Stacey's description of its use was not contradicted, and all activities appeared to relate to patient use. Whether such activities are adequately documented is not in issue, and need not be addressed. Therefore, with the one exception, the administrative costs in adjustments 3, 6 and 15 should be disallowed.
As to home office expenses in adjustment 5, the evidence supports a similar conclusion that they too are not prudent expenditures. Although some benefits were provided to RCC by the home office, there was no showing that Newren could not have done this, or that they could not have been provided from Cincinnati. Moreover, most, if not all, of the expenses are directly attributable to Stacey's visits to Florida, something not shown to be necessary. Therefore, home office expenses in adjustment 5 should be disallowed./8
The next issue is whether, after finding the expenditures were not prudent, HRS could then properly reclassify the expenses as a part of owner's compensation. To support this action HRS contends that since the costs are impermissible under HIM-15 and the Long Term Plan, they must be included as owner's compensation pursuant to Part I of Section 906.1, HIM-15. That section provides in part:
There may be instances in which an owner is receiving compensation in a form that without close scrutiny might not be recognized as compensation (e.g., fringe benefits).
Compensation to an owner may include: (1) supplies and services used for the personal use of the owner, (2) special merchandise - ordered from wholesalers for the owner's
personal use, (3) wages of a domestic or other employee who works in the home of the owner, (4) personal use of a car owned by the business, (5) personal insurance premiums paid for the owner, and other fringe benefits as described in s. 2144 of this manual.
Any of the above payments must be included in the owner's total compensation to determine its reasonableness when such payments meet the requirements for being categorized as fringe benefits under the definition given in
2144.1. If the requirements of that section are not met, these types of payments cannot be considered compensation.
Also having relevance to this issue is Section 906 which provides as follows:
As indicated in s. 902.2, compensation for the necessary services of a stockholder- employee or an individual described in s. 901 (other than sole proprietors and partners) includes:
Salary amounts paid for managerial, administrative, professional, and other services.
Amounts paid by the institution for the personal benefit of the owner.
The costs of assets and services which the owner receives from the institution.
Deferred compensation.
Any payments to an owner in excess of a reasonable level do not constitute compensation or any other allowable cost.
Since the compensation as administrator was in return for Stacey providing "managerial, administrative, professional, and other services" to RCC, those amounts could properly be reclassified as owner's compensation under the foregoing section. Further, the agency's interpretation of the regulation to permit home office compensation to be similarly classified is a permissible one, and is not inconsistent with the plain meaning of the rule. Therefore, HRS' decision to classify certain expenses as owner's compensation was proper, as was its subsequent reference to BHI limitations. However, the evidence reflects HRS used the incorrect cap ($33,830), and should have used $35,824 instead.
Therefore, with the exception of motor vehicle expenses all administrative and home office expenses in excess of 55.9 percent of the proper cap should be disallowed.
Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that petitioner's cost report be adjusted and reimbursement
accordingly made in a manner consistent with this Recommended Order subject to
the furnishing of proper documentation by the provider where necessary.
DONE AND ORDERED this 17th day of September, 1987, in Tallahassee, Leon County, Florida.
DONALD R. ALEXANDER
Hearing Officer
Division of Administrative Hearings The Oakland Building
2009 Apalachee Parkway
Tallahassee, Florida 32399-1550
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 17th day of September, 1987.
ENDNOTES
1/ This stipulation was not particularly helpful in simplifying the case. This is because the parties then glossed over the numbers and make up of each adjustment leaving the record in a less than clear state. To fully understand the concepts and when they should apply, a clear understanding of the adjustments is also necessary. This is especially true here since the numbers on the proposed adjustments and the cost report are not the same. See footnote 3, infra.
/2 The BHI guidelines have been Superseded by guidelines published in a document referred to by one witness as "HCFA." However, the BHI guidelines were applicable to 1984 cost reports.
3/ What complicates this matter to some degree is the fact that, except as to adjustment 5, the disputed adjustments in the audit report do not coincide numerically with the figures used in the cost reports, and the work papers which presumably might reconcile the two are not of record.
4/ The partial make up of this balance is as follows: rent ($5,019), operations ($788), airfare ($2,103), utilities ($2,114), meals ($3,742), gasoline ($2,619), VISA interest charges ($72), and salary ($19,744). The remainder of the balance was not disclosed.
5/ The 55.9 percent factor represents RCC's percentage of total beds in SEI's two facilities.
/6 Even so, out of 450 licensed nursing homes in Florida, HRS personnel were unaware of any except RCC using an
7/ Even though RCC may have operated below the reimbursement ceiling in 1984, a sign of efficiency, this does not legitimize and immunize its expenditures from HRS scrutiny. Out-of-state administrator.
/8 While at first blush this conclusion might arguably appear to be inconsistent with the rationale used to allow motor vehicle expenses, it is not. Home office charges consist almost wholly of airline travel and living expenses, which could have been avoided altogether had the services been provided from Cincinnati or by the full-time administrator in Miami.
APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-0924
Petitioner:
Covered in finding of fact 1.
Covered in finding of fact 7.
Covered in finding of fact 1.
Covered in finding of fact 8.
Covered in finding of fact 16.
Covered in findings of fact 15 and 16.
Covered in finding of fact 13.
Covered in findings of fact 10 and 11.
Covered in finding of fact 10.
Rejected as being contrary to the evidence. See also conclusion of law 7.
Partially used in finding of fact 13. The remainder is irrelevant since such charges were shown to be unnecessary.
Partially accepted as to automobile expenses. The remainder was shown to be either imprudent or to beowner's compensation.
Rejected as being contrary to the more persuasive evidence.
Partially covered in finding of fact 13. The remainder is rejected as being contrary to the more persuasive evidence.
Covered in finding of fact 6 except as to the conclusionary portion of the finding which is contrary to the more persuasive evidence.
Covered in finding of fact 20.
Covered in footnote 7.
Respondent: *
Covered in findings of fact 7, 8, 10 and 11.
Covered in findings of fact 8, 10 and 11.
Partially covered in findings of fact 8 and 10. The remainder is unnecessary.
Covered in findings of fact 10 and 11.
Covered in finding of fact 12.
Covered in finding of fact 12.
Covered in findings of fact 12 and 20 except that the proper BHI cap has been used.
Covered in finding of fact 6.
* Respondent submitted eight lengthy unnumbered paragraphs of proposed findings. They will be ruled upon in sequential order.
COPIES FURNISHED:
Kenneth S. Handmaker, Esquire 2500 Brown & Williamson Tower Louisville, Kentucky 40202-3410
Theodore E. Mack, Jr., Esquire Building One, Room 407
1323 Winewood Boulevard
Tallahassee, Florida 32399-0700
Gregory L. Coler, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard
Tallahassee, Florida 32399-0700
R. S. Power, Esquire Agency Clerk
Department of Health and Rehabilitative Services Building One, Room 407 1323 Winewood Boulevard
Tallahassee, Florida 32399-0700
| Issue Date | Proceedings |
|---|---|
| Sep. 17, 1987 | Recommended Order (hearing held , 2013). CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Sep. 17, 1987 | Recommended Order | Medicaid cost reports of nursing home adjusted to disallow certain imdirect home office expenses to Florida provider. |
