STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BRENDA J. OGDEN, )

)

Petitioner, )

)

vs. ) CASE NO. 95-1284

) DEPARTMENT OF HEALTH AND ) REHABILITATIVE SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, this cause came on for formal hearing before P. Michael Ruff, duly-designated Hearing Officer of the Division of Administrative Hearings, on July 18, 1995 and August 25, 1995, in Tallahassee, Florida.

APPEARANCES

For Petitioner: Anthony L. Bajoczky, Esquire

Scott A. Snavely, Esquire BAJOCZKY & FOURNIER

125 North Franklin Boulevard Tallahassee, Florida 32301

For Respondent: Tommy E. Roberts, Jr., Esquire

Charles A. Finkel, Esquire Department of Health and

Rehabilitative Services

2639 North Monroe Street, Suite 252-A Tallahassee, Florida 32399-2949

STATEMENT OF THE ISSUES

The issues to be resolved in this proceeding concern whether the Respondent, Department of Health and Rehabilitative Services (HRS), acted pursuant to proper legal authority in terminating the Petitioner's certification as an "independent support coordinator" (ISC) under the program known as the Developmental Services Home and Community-Based Services Waiver (Medicaid Waiver Program).

PRELIMINARY STATEMENT

This cause arose upon the notification to the Petitioner, Brenda J. Ogden, by letter of January 3, 1995, that HRS was terminating her certification as an ISC. On January 30, 1995, the Petitioner filed a request for hearing contesting the determination to decertify her as an ISC. HRS had indicated in the termination letter that the action was due to improprieties regarding the Petitioner's billing, maintenance of client records, and failure to follow

policies, as disclosed by an audit and monitoring of her operations and activities in the following particulars:

1. Unauthorized expenditure of funds.

2. Billing multiple clients for the same activity.

3. Billing for services not documented and/or not billable.

4. Altering client records.

5. Billing for multiple clients during this same time period.

Upon receipt of the Petitioner's hearing request, the matter was referred to the Division of Administrative Hearings and the undersigned Hearing Officer for adjudication. The cause came on for hearing as noticed, at which HRS presented the testimony of five witnesses and had 37 exhibits admitted into evidence. The Petitioner testified on her own behalf and presented the testimony of seven witnesses and introduced two exhibits into evidence. Upon conclusion of the proceeding, the parties requested an extended briefing schedule for preparation of proposed recommended orders and by stipulation, later extended the due date for those pleadings. Consequently, pursuant to the Hearing Officer's ruling and the parties' stipulation, proposed findings of fact and conclusions of law have been timely received. The proposed findings of fact are addressed in this Recommended Order and again in the Appendix attached hereto and incorporated by reference herein.

FINDINGS OF FACT

1. The Petitioner was a resident of Havana, Florida, and maintained her office at her home at times pertinent hereto. She has a degree from Florida A&M University and a number of years of occupational experience in developmental and social services. After receiving the required training, she was certified as an ISC under contract with HRS in the Medicaid Waiver Program.

   
   

2. HRS is an agency of the State of Florida. It is charged, as pertinent hereto, with administering and regulating the delivery of services to developmentally-disabled persons through the Medicaid Waiver Program, including the contracting with ISC's, such as the Petitioner, who provide such services to developmentally-disabled clients under this program. ISC's are independent contractors who are certified by HRS on an annual basis to provide coordination services for developmentally-disabled clients, which means that they insure that appropriate medical and social services are located, obtained and delivered to such clients.

   
   

3. The ISC's have access to HRS computer terminals at their work sites so that they can record the number of time units (quarter hours, etc.) for which they serve clients and the amount of monies due for the services and time units provided to clients. They directly bill HRS for these services, simply by entering the billing information into the HRS medicaid computer system. Thus, great reliance is placed by HRS on the honesty and accuracy of the ISC's billings, subject to HRS' authority to audit billings and obtain recoupment for excessive billing.

   
   

4. HRS administers the Medicaid Waiver Program for clients who are qualified for medicaid benefits and properly enrolled. Under this program, they are permitted to live at home or in some other community/residential facility and are provided social services through a network of care providers. This is done pursuant to a "support plan" which is developed and implemented according

   to the clients' psychological, emotional, medical and social needs. It is the function of an ISC to manage and coordinate the delivery of services to the client. In doing so, the ISC interacts with and communicates with the client's family, social worker, and care providers to determine the appropriate network of services that would best serve him. The ISC assists the client in securing the needed services, sees that those services are properly and satisfactorily delivered and that they conform to the support plan. Each ISC is required to maintain contemporaneous case notes, which reflect the actual date, time and description of all services performed for a client.

   
   

5. An integral part of the support plan is the "cost plan" which contains a budget allocated to each client for the purpose of needed services. All services must be provided for in that cost plan. Any services not provided for in the cost plan are not normally permitted, although they may be if an amendment to the cost plan is approved by HRS. Each cost plan contains an allocation of 240 "quarter hours" budgeted annually for the services of an ISC for clients. Each ISC bills time based upon quarter hour increments. Time is billed by the ISC based upon the daily accrual of quarter hours. For instance, if an ISC provides ten minutes of service during a particular day for a given client, the ISC is permitted to bill one quarter hour of time to the client's account. If an ISC provides services at three different times during the same day, for five minutes each time, the daily accrual is one quarter hour. If an ISC provides services at two different times during the day, for ten minutes each time, the daily accrual of time billable is two quarter hours. Every ISC is responsible for billing his or her time and any charges for vendor services directly into the medicaid computer billing system. Each ISC receives a security clearance for access to the client accounts. Persons without a clearance are prevented from entering time or charges to the client account.

   
   

6. Only services which have been approved in the support plan may be billed. The ISC's time involved in administrative duties, such as preparing case notes and billing information, undergoing computer training or conducting meetings with supervisors concerning administrative matters and training is not billable to the client's medicaid account.

   
   

7. "Double billing" is not permitted. That is to say that different clients may not be billed for services for the same time period. For instance, if an ISC makes a single house call to interview a client and briefly speaks with another client at the same residence during the course of that interview, the ISC is not permitted to bill one quarter hour to each client during the time period involved. Neither is "multiple billing" permitted. That is, different clients may not be billed for a single service, even during different time periods. This would occur, for instance, if an ISC contacts a transportation service vendor to obtain transportation for one client for a quarter hour period and the same vendor for the following quarter hour on behalf of another client and bills a separate quarter hour and the cost of the service also to the second client. In reality, one transportation trip and service was involved with the same vendor during a one-half hour period in this example.

   
   

8. Each ISC is required to maintain case notes of all activities performed. No activity may be billed to the Medicaid Waiver Program which is not supported by case notes which show the identify of the client, the date of the service, the time of the service, and the description of the service. Billing without this supporting documentation, contemporaneously recorded, is not permitted. Case notes must reflect truly contemporaneous time and activity. It is not permissible, for instance, to "make up" time spent, but unbilled, for whatever reason, during a prior billing cycle by entering that time

   hypothetically during a subsequent billing cycle. If such is done, it amounts to falsification of the ISC's case notes, and, of course, it is not appropriate to bill for activities which did not occur.

   
   

9. The policy of the Medicaid Waiver Program, as shown by witness Trejo, who helped formulate the policy over the last two and one-half years, and witness Brown, is to promote a client's free and unfettered choice of an ISC. This is done by providing each client with certain information and promotional materials about all of the ISC's available. The ISC is required by HRS to provide HRS with the written materials containing information about that ISC. HRS then insures that these materials are delivered to clients by mail. Each client is provided with a designation form for the written selection of an ISC. HRS undertakes no solicitation or promotion on behalf of particular ISC's and does not try to influence client choices of ISC's.

   
   

   Certification Training

   
   

10. ISC's must successfully complete certain training before they are certified and allowed to perform services. They are required to complete 34 hours of Statewide training known as "living everyday lives". They must also complete 24 hours of district-specific training, called simply "ISC training", which covers many topics, including Medicaid Waiver administration, values defining proper roles, planning, plan implementation, resource development, client eligibility, care providers, services provided, billing, client satisfaction, client rights issues, and residential placement. They are also required to be trained in HRS rules and policies concerning the Medicaid Waiver Program, the maintaining of records, relevant law, the documentation of their services, coordination with sub-district contracts, the confidentiality requirements, billing requirements, training in the use of the ABC computer system, and proper invoicing. During the course of the ISC training, the Petitioner was provided with a copy of proposed Rule 10F-13, Florida Administrative Code, and the related policy clarifications of the policy expressed in that rule. That rule, while not yet adopted, constitutes the agency policy for the conduct and administration of the Medicaid Waiver Program, as established by the HRS witnesses, particularly witness Trejo, who was the key person in developing that policy. (See Respondent's Exhibit 36 in evidence).

    
    

11. The Petitioner made an application to be certified as an ISC on December 27, 1994. As a part of that application, the Petitioner executed certain "assurances", as part of a medicaid provider agreement. The Petitioner then attended and completed the above-referenced ISC training. In addition, the Petitioner received additional individual training from Ms. Hall and Ms. Brown of HRS, as well as numerous consultations with Ms. Brown concerning various administrative matters and the proper use and operation of the computer record and billing system. The Petitioner was then certified as an ISC for District 2, effective July 1, 1994. That certification lasted until the subject termination on January 4, 1995. During the time of her service as an ISC contractor, the Petitioner provided services to 15 clients, including J.S., M.E., A.W., S.E.Jr., W.M., W.R., G.T., J.R., R.S., H.M., R.M., W.O., M.C., and M.C.

    
    

12. In cases where an ISC has deviated from a client's support or cost plan, the ISC is permitted an opportunity to propose a "corrective action plan". The corrective action plan provides a guide for how the ISC can remedy identified problems, within an acceptable time period, concerning the ISC's performance or billing operations. Failure to undertake and satisfy a corrective action plan is a basis for termination under HRS' regularly-followed policy. In the past, ISC's with identified billing problems have undertaken

    corrective action plans, and as part of those plans, among other requirements, have immediately reimbursed the amounts improperly billed. In one case, an ISC was required to terminate an employee, who was the source of many billing and documentation problems. In one case, an ISC was placed on a conditional, probationary certification status due to billing and documentation problems.

    
    

13. Within 90 days after an ISC is certified, each ISC undergoes a monitoring review, in which district developmental services personnel audit the ISC's client records to determine compliance with program requirements. If the review is successful, ISC's are thereafter monitored annually for compliance. Should problems be detected in the initial monitoring review, or otherwise come to the attention of HRS through client or care provider information, additional reviews or audits may be undertaken as necessary to insure that the ISC is in compliance with the Medicaid Waiver Program policy requirements.

    
    

14. After the Petitioner was certified, HRS, through Ms. Mary Brown circulated the written promotional materials and information provided to her concerning the services offered by the Petitioner as an ISC, in accordance with HRS policy. Ms. Brown delayed her normal mailing date in order to accommodate the late receipt of the Petitioner's promotional materials. Soon thereafter, Ms. Brown received a complaint from another ISC and calls from certain clients concerning solicitation of clients by the Petitioner, which is contrary to HRS policy. ISC's are not allowed to solicit clients. In order to address the complaint and obviate the effects of any improper solicitation of clients, Ms. Brown accompanied the Petitioner and the complaining ISC to the homes of various clients in order to conduct interviews with them. Ms. Brown provided the clients with designation forms to be completed at that time; and several clients then chose the Petitioner as their ISC. Several clients did not choose the Petitioner. Ms. Brown, however, made no attempt to influence a client concerning which ISC the client chose.

    
    

    Billing and Record Irregularities

    
    

15. Beginning in September of 1994, while reviewing certain records concerning the Petitioner's ISC operations, Mr. Trejo, the Management Review Specialist for the District 2 Developmental Services Program Office, in charge of management review of the Medicaid Waiver Program, discovered certain billing irregularities. Particularly, he discovered that the Petitioner had entered excessive billing requests for certain clients. Because of this initial inquiry and the results of it, he decided to conduct a more in-depth audit of the Petitioner's ISC operations, billings, and other records. During the next few weeks, he undertook a complete review of the billing and client records of the Petitioner. Additionally, the customary 90-day monitor review of the Petitioner's client files was conducted on December 6, 1994. Mr. Trejo's review revealed the following problems with the Petitioner's billing and records concerning her clients and their services. These were described in Mr. Trejo's testimony, corroborated by other HRS witnesses. That version of events is accepted as credible and reliable:

    
    

    1. Alteration of Case Notes to Increase Time Billed. R.Exhs. 6 and 7.

       
       

    2. Unauthorized Expenditures:

       
       

       1. Exceeding Cost Plan:

          ME: 332 quarter hours billed in 3 months;

          $782 overpayment as of 11/94. R.Exh. 8.

          JS: 185 quarter hours billed in 2 months; projected budget depletion in one month. R.Exh. 9.

          JR: 176 quarter hours billed in 3 months; projected budget depletion in 2 months. R.Exh. 10.

          MC: 131 quarter hours billed in 2 months; projected budget depletion in 3 months. R.Exh. 11.

          MC: 134 quarter hours billed in 2 months; projected budget depletion in 2 months. R.Exh. 12.

          RS: 177 quarter hours billed in 3 months; projected budget depletion in 1 month. R.Exh. 13.

          
          

       2. Non-Billable Services:

          JS: date 9/10/94; 12 units billed for training.

          R.Exhs. 31 and 39.

          
          

          c.	Double	Billing:
          	JS/SR:	date 11/01/94. R.Exh. 14.
          	ME/MC:	date 11/15/94. R.Exh. 15.
          	ME/WO:	date 10/12/94. R.Exh. 16.
          	ME/JS:	date 10/19/94. R.Exh. 17.
          	AW/RM:	date 10/12/94. R.Exh. 18.
          	AW/HM:	date 10/03/94. R.Exh. 19.
          	AW/ME:	date 09/14/94. R.Exh. 20.
          	JS/JR:	date 09/15/94. R.Exh. 21.

          
          

          d. Undocumented Billing:

          
          

          SR: date 11/1/94; 18 units worked, 30 units billed. R.Exh. 22.

          JR: date 8/30/94; 5 units worked, 15 units billed. R.Exh. 23.

          HM: date 9/8/94; 3 units worked, 4 units billed. R.Exh. 24.

          HM: date 9/28/94; 1 unit worked, 2 units billed. R.Exh. 24.

          HM: date 9/19/94; 0 units worked, 3 units billed. R.Exh. 25.

          HM: date 9/28/94; 1 unit worked, 2 units billed. R.Exh. 25.

          MC: date 10/17/94; 0 units worked, 4 units billed. R.Exh. 26.

          JR: date 9/17/94; 0 units worked, 3 units billed. R.Exh. 27.

          MC: date 10/6/94; 0 units worked, 4 units billed. R.Exh. 28.

          RJ: date 9/30/94; 0 units worked, 3 units billed. R.Exh. 29.

          RM: date 9/28/94; 1 unit worked, 2 units billed. R.Exh. 30.

          WO: date 11/6/94; 2 units worked, 3 units billed. R.Exh. 31.

          
          

          1. Multiple Billing:

             
             

             HM/RM: date 9/30/94.

             SM/HM: date 10/3/94.

             HM/HM: date 11/25/94.

             HM/HM/SM/RM: dates 10/1/94 and 10/2/94. SM: dates 9/14/94 and 10/3/94.

             SM: dates 9/14/94, 9/15/94 and 9/16/94.

             R.Exh. 34.

             
             

          2. Falsification of Case Notes:

          MC: date 11/2/94; 24 units, including meeting with Lynn Daw that did not occur. R.Exh. 32; Tmny. Daw

          JR: date 9/2/94; 23 units, including meeting with Arlene Walker that did not occur because Ms. Walker was out of town. R.Exh. 33; Tmny. Walker.

          
          

16. Because of the problems found by Mr. Trejo, a meeting was called between the Petitioner and Mr. Trejo and others of HRS to discuss these problems and the need for correction. On December 2, 1994, Mr. Trejo wrote to the Petitioner, confirming the November 22, 1994 meeting, its subject matter and advising her that a corrective action plan concerning the over-expenditure of funds allocated to her clients needed to be submitted no later than December 19, 1994.

    
    

17. No formal plan of corrective measures or actions was submitted by the Petitioner, although on December 15, 1994, she submitted a memorandum to Ms. Mary Brown of the District 2 Developmental Services Community Services Office (agency liaison for the Medicaid Waiver Program), concerning the over- expenditures, which simply listed the total amount of support coordination units (quarter hours) that were used to provide support to each client since November 30, 1994 and showed that there were insufficient hours available to transfer from the seven clients which the Petitioner showed as having some possibly transferable quarter hour units left at the time. Therefore, the Petitioner simply requested that additional units be approved.

    
    

18. Only one of the four performance and billing problems discussed at the earlier meeting between the Petitioner and Mr. Trejo and other HRS personnel was addressed. (Respondent's Exhibit 4 in evidence, the Petitioner's memorandum of December 15, 1994). The Petitioner merely advised Ms. Brown in that memorandum of the lack of availability of funds within her overall budget to adjust for the over-expenditures already made, which HRS already knew. She did not actually submit a plan for corrective action to alleviate the over-expenditure mode of operation she had engaged in. No plan of action of any sort was proposed to HRS to correct the other billing and documentation problems identified by HRS, through Mr. Trejo. These include the potential conflict-of-interest posed by the Petitioner's son, working as a vendor provider, authorized by the Petitioner as the ISC. This situation includes the problem that Mr. Richardson, her son, was providing services to at least one client which were not authorized as part of that client's services plan (transportation to the movies and other destinations being provided, when dental hygiene training was the service authorized in the support plan).

    
    

19. Through the certification process and upon certification, the Petitioner had been provided complete notice of the HRS Medicaid Waiver policy concerning billing and documentation requirements. This was part of the "assurances" on the application form and in the agreement entered into between the Petitioner and HRS. That application, the assurances contained therein, and the provisions of the agreement constituted notice to the Petitioner that failure to comply with the Medicaid Waiver policy embodied in the proposed rule

    and Policy Clarifications 1-8, as described in detail in Mr. Trejo's testimony, were grounds for termination, as was the fraudulent billing and documentation of records concerning clients.

    
    

20. HRS, at no time, treated the Petitioner differently from any other ISC similarly situated, with respect to the Medicaid Waiver Program and policy. In fact, Ms. Brown and Ms. Hall spent a disportionate amount of time instructing and attempting to assist and support the Petitioner in the performance of her services, in proper record-keeping and computer billing methods.

    
    

21. In view of the Petitioner's failure to conform to the policies described above, in terms of the billing and documentation violations referenced in the above Findings of Fact, and her failure to propose a meaningful plan of corrective action with regard thereto, HRS terminated her certification as an ISC on or about January 4, 1995.

    
    

    CONCLUSIONS OF LAW

    
    

22. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties hereto pursuant to Section 120.57(1), Florida Statutes.

    
    

23. The Medicaid Waiver Program is a federally-authorized program for developmentally-disabled clients, in accordance with 42 C.F.R. S. 441.300, et seq. HRS is mandated by statute to provide developmental services to clients in Florida and to administer the Medicaid Waiver Program, in accordance with Section 393.061, et seq., Florida Statutes, including Section 393.066, Florida Statutes. HRS has the authority to contract under those statutory provisions, specifically Section 393.066(3), Florida Statutes, for ISC services by private contractors, situated as the Petitioner.

    
    

24. Moreover, HRS has express authority to adopt rules to implement the Medicaid Waiver Program, pursuant to Section 393.501(1), Florida Statutes. HRS has embarked on the rule-making process to implement and adopt proposed Rule 10F-13, Florida Administrative Code, which has not yet completed the adoption process. However, it was established in this record that HRS is using the proposed rule and the policy clarifications referenced above, 1-8, as the HRS incipient agency policy concerning the Medicaid Waiver Program and the subject matters covered therein. The Petitioner, in her certification and training process, was informed of and trained in those policies.

    
    

25. The application and its constituent parts represents the agreement of the parties concerning the Petitioner's certification, service as an ISC, and the requirements of that service. It constitutes a legal and binding contract between the Petitioner and HRS.

    
    

26. The application provides that should the provider fail to comply with the assurances and conditions that it agreed to in the certification and application process, as well as applicable statutes, rules and policies, the medicaid provider agreement related to that ISC will be terminated. Paragraph

    24 of the assurances, executed by the Petitioner upon her certification, provides that the Petitioner "assures compliance with requirements of Chapter 393, F.S., and the DS/Home and Community Based Services Waiver Rule, 10F-13, F.A.C.". See Respondent's Exhibit 1, page 12, in evidence. Paragraph 29 of the assurances executed by the Petitioner provides that "falsification or concealment is a breach of the DS/HCBS certification and may result in cancellation of same by the department". Paragraph 31 of the assurances

    provides that the Petitioner agrees to return to the Department any overpayments received within 30 days of receipt of notification thereof.

    
    

27. Paragraph 8 of the medicaid provider agreement provides that the parties will "abide by the Florida Administrative Code, Florida Statutes, policies, procedures, manuals of the Florida Medicaid Program, and federal laws and regulations". The Petitioner was, of course, a party to that agreement.

    
    

28. The Petitioner was provided and completed the required ISC training, including the relevant policies, and met the certification requirements to be an ISC. She knew HRS' policy concerning the Medicaid Waiver Program and is bound by the terms of proposed Rule 10F-13, Florida Administrative Code, and the policy clarifications as the Department policy in these matters, of which she had been informed in the certification process. She executed and delivered the application and is bound by the terms of it, including the assurances and medicaid provider agreement incorporated therein.

    
    

29. The Petitioner has been proven to have been in violation of HRS' policy, as expressly set forth in the above policy description, proposed Rule 10F-13, Florida Administrative Code, and the policy clarifications with respect to the billing and documentation irregularities and improprieties referenced in the above Findings of Fact. She is in breach of the provisions of the application assurances and medicaid provider agreement.

    
    

30. HRS' policy, as shown in proposed Rule 10F-13.013(1)(a), Florida Administrative Code, is to immediately terminate any service provider who submits a fraudulent invoice. HRS' policy, reflected in that proposed rule, the clarifications and Mr. Trejo's testimony is that any service provider who fails to uphold the conditions of certification may be terminated. It is also HRS' policy to provide written notification of termination of certification, stating the reasons for termination, which was done in this instance.

    
    

31. The Petitioner's billing and documentary improprieties evidence of an intentional pattern of overcharging and justify immediate termination of her ISC certification for fraud, in accordance with the above-referenced policies. Further, even if the improprieties are not considered fraudulent, they constitute a regular pattern of violation of HRS' policy concerning administration of the Medicaid Waiver Program, a violation of the conditions of the Petitioner's certification which she agreed to comply with and, therefore, a breach of her contractual obligations under the above-referenced elements of the agreement.

    
    

32. Thus, HRS had good cause and was justified in terminating her ISC certification, in accordance with its regularly-followed policies referenced above. HRS properly notified the Petitioner of her termination in conformance with its policy, and the fact remains that the Petitioner did not submit a meaningful corrective action plan by the time she was required to submit it. This fact is not changed by the fact that in late December, the Petitioner requested assistance with the corrective action plan of the one of HRS' personnel. The request for assistance came too late, and even had a corrective action plan been submitted in a meaningful way, HRS was still not bound to have accepted it and could still have terminated the Petitioner under the above-found circumstances.

RECOMMENDATION

Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is

RECOMMENDED that a Final Order be entered by the Department of Health and Rehabilitative Services revoking the certification of Brenda J. Ogden as an Independent Support Coordinator, effective January 4, 1995.

DONE AND ENTERED this 23rd day of January, 1996, in Tallahassee, Florida.

P. MICHAEL RUFF, Hearing Officer Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 23rd day of January, 1996.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-1284

Petitioner's Proposed Findings of Fact 1-4. Accepted.

5. Accepted, but not itself materially dispositive of the issues presented.

6-10. Accepted.

1. Accepted, but immaterial.

2. Accepted.

3. Rejected, as contrary to the greater weight of the competent, credible testimony and evidence.

4. Accepted, in a general sense, but not materially dispositive. These reasons were not the reasons for the Petitioner's violations of policies and her agreement.

5. Rejected, as contrary to the weight of the evidence based upon the Hearing Officer's determinations of the candor and credibility of witnesses. Even though the Petitioner had some difficulties learning to use the relevant computer system, these were not shown to be the reasons for the improprieties in billing and record-keeping.

6. Accepted.

7. Accepted, except as to the date, but not materially dispositive.

8. Accepted, but not materially dispositive. The referenced date should be November 22, 1994.

9. Accepted.

20-21. Accepted, but not materially dispositive.

1. Accepted, only in terms of the dates she made the written response referenced. It is not found to be a detailed plan of corrective action/support coordination, and this context of the proposed finding is rejected as subordinate to the Hearing Officer's findings of fact on this subject matter.

2. Accepted, but not itself materially dispositive.

3. Accepted, but not materially dispositive, and subordinate to the Hearing Officer's findings of fact on this subject matter.

4. Accepted, but not materially dispositive, and subordinate to the Hearing Officer's findings of fact on this subject matter.

5. Rejected, as constituting a conclusion of law and not a proposed finding of fact and as legally incorrect.

6. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter and as not materially dispositive. Even if she never altered client records, that does not obviate the violations found.

7. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter.

8. Accepted, but not itself materially dispositive.

9. Accepted, in part, but only as to the date the formal written notification of the overpayment was accorded the Petitioner. She had earlier been informed verbally of the problem. Even if she were terminated 28 days instead of 30 days after notification of the overpayment, the Petitioner never before then or since has made any effort of record in this proceeding to make reimbursement for the overpayments. The other reasons referenced and found above are adequate cause for termination, in any event.

31-32. Rejected, as immaterial. The other ISC's referenced in these proposed findings of fact were in different circumstances and differently situated in terms of overpayment/overbilling problems involved (for instance, repayments were made).

33. Rejected, as not in accord with the competent, credible evidence. The fact was that Mr. Sutton determined that there was insufficient evidence to go forward with prosecution in his opinion; however, the matter was referred to the Office of the State Attorney, who, in fact, elected not to institute prosecution for unknown, discretionary reasons.

34-35. Accepted, but immaterial.

Respondent's Proposed Findings of Fact

1-28. Accepted, but subordinate to the Hearing Officer's findings of fact on this subject matter.

COPIES FURNISHED:

Anthony L. Bajoczky, Esquire Scott A. Snavely, Esquire BAJOCZKY & FOURNIER

125 North Franklin Boulevard Tallahassee, FL 32301

Tommy E. Roberts, Jr., Esquire Charles A. Finkel, Esquire Department of Health and

Rehabilitative Services

2639 North Monroe Street, Suite 252-A Tallahassee, FL 32399-2949

Robert L. Powell, Agency Clerk Department of Health and

Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, FL 32399-0700

Kim Tucker General Counsel

Department of Health and Rehabilitative Services

1323 Winewood Boulevard

Tallahassee, FL 32399-0700

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit to the agency written exceptions to this Recommended Order. All agencies allow each party at least ten days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the Final Order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the Final Order in this case.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BRENDA J. OGDEN, )

)

Petitioner, )

)

vs. ) CASE NO. 95-1284

) DEPARTMENT OF HEALTH AND ) REHABILITATIVE SERVICES, )

)

Respondent. )

)

ORDER

THIS CAUSE comes before the undersigned Hearing Officer, sua sponte. It has come to the undersigned's attention that the Recommended Order entered on January 23, 1996 contains an error on page 19, in the last sentence of the "RECOMMENDED" paragraph. Accordingly, it is

ORDERED that the Recommended Order is hereby corrected to read "January 4, 1995", instead of "January 6, 1996", as reflected on the corrected page attached hereto and incorporated by reference herein.

DONE AND ORDERED this 25th day of January, 1996, at Tallahassee, Leon County, Florida.

P. MICHAEL RUFF, Hearing Officer Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 25th day of January, 1996.

COPIES FURNISHED:

Robert L. Powell, Agency Clerk Department of Health and

Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, FL 32399-0700

Kim Tucker, General Counsel Department of Health and

Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, FL 32399-0700

Anthony L. Bajoczky, Esquire Scott A. Snavely, Esquire BAJOCZKY & FOURNIER

125 North Franklin Boulevard Tallahassee, FL 32301

Tommy E. Roberts, Jr., Esquire Charles A. Finkel, Esquire Department of Health and

Rehabilitative Services 2639 N. Monroe St., Ste. 252-A Tallahassee, FL 32399-2949

Docket for Case No: 95-001284

Orders for Case No: 95-001284