STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Petitioner, )

)

vs. ) CASE NO. 95-2130

)

LEONEL MEDEROS, d/b/a ) LAS AMERICAS SUPPORT SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its designated Administrative Law Judge, Joyous D. Parrish, held a formal hearing in the above-styled case on July 25 and 26, 1996, in Miami, Florida.

APPEARANCES

For Petitioner: Hilda A. Fluriach, Esquire

Department of Health and Rehabilitative Services

401 Northwest 2nd Avenue, N-1014 Miami, Florida 33128

For Respondent: Myron Gold, Esquire

FOX AND GOLD, P.A.

2900 South West 28th Terrace Miami, Florida 33133

STATEMENT OF THE ISSUE

Whether Respondent's certification as a support coordinator under the Medicaid waiver program should be renewed.

PRELIMINARY STATEMENT

This case began on March 1, 1995, when the Department of Health and Rehabilitative Services (Department) issued a letter advising Respondent, Leonel Mederos, whose company is Las Americas Support Services, that his certification as a provider of services under the home and community based services waiver

program was being discontinued. The allegations in support of that decision were: falsified billing (billing for support coordination services without documentation of billable activities, billing for services which were not support coordination services, and billing for services provided by unqualified support coordinators); failure to maintain a central record in accordance with Chapter 393, Florida Statutes, with insufficient documentation of support coordination; payment to providers for services not authorized by the Department; provision of services to 70 customers under one provider number when the maximum is 35; and failure to provide minimal services. Respondent filed a petition seeking a formal hearing in the matter on March 24, 1995, and the case was forwarded to the Division of Administrative Hearings for formal proceedings on May 4, 1995.

At the hearing, the Department presented the testimony of Karlene Peyton, the former program administrator for the developmental services program for the Department; and Kirk Ryon, the operations and management consultant in charge of the Medicaid waiver program for District 11. Its exhibits numbered 1 through 9, and 11 through 36 have been admitted into evidence.

Respondent offered the testimony of the following witnesses: Ileana Toledo, a social worker employed by the Department; Stephen Diehl, a human services program specialist for developmental services; Naomi Malandris, the parent of one for whom Respondent acted as support coordinator; Maria Elena Varela, a support coordinator who worked with Respondent at his agency; and Lorraine Molinari, a consultant for physicians and other health care providers regarding coding, reimbursement, and documentation guidelines. Respondent's exhibits numbered 1 through 6 were admitted into evidence.

Petitioner requested and official recognition has been taken of the following provisions: Chapter 393, Florida Statutes; Chapter 42, Code of Federal Regulations; and the final and recommended orders from DOAH case no. 95-1284.

The transcript of the proceeding was filed on August 5, 1996. The Respondent filed a motion for an extension of the time to file proposed recommended orders which was granted. Specific rulings on the parties' proposed findings of fact are included in the appendix at the conclusion of the this order.

FINDINGS OF FACT

1. The Department is the state agency charged with the responsibility of regulating persons to be certified as support coordinators under the home and community based services program.

2. At all times material to the allegations in this case, Respondent, Leonel Mederos, was certified as a support coordinator and did business through his company, Las Americas Support Services.

3. For the period 1992 through 1995, Karlene Peyton was the program administrator for the Department's developmental services program which was responsible for the support coordinators under the home and community based services program.

   
   

4. The developmental services program provides services to clients developmentally disabled, e.g., persons who are mentally retarded, have autism, cerebral palsy or spina bifida.

   
   

5. Developmentally disabled persons are entitled to receive benefits such as supportive living services, employment services, training services, residential services, and case management services.

   
   

6. The Department administers such services pursuant to Chapter 393, Florida Statutes, and Chapter 10F-13,Florida Administrative Code.

   
   

7. As part of the system to provide services to the developmentally disabled, the home and community based services program (HCBSP) was established under the Medicaid program.

   
   

8. This program adds a support coordinator who is not employed by the Department but who serves as a case manager for the client.

   
   

9. In order to qualify under the HCBSP, clients must be Medicaid eligible and have the specified range of disability.

   For example, a client who is mentally retarded would be evaluated based upon their IQ level and deficiencies in activities of daily living.

   
   

10. In the instant case, the persons providing assistance or case management to the developmentally disabled client are designated as waiver support coordinators. The waiver support coordinators are Medicaid providers.

    
    

11. When the Department established the waiver support coordinators program, it promulgated statewide policies and written guidelines to regulate the system. It also developed district specific guidelines or policies.

    
    

12. One policy, for example, is the limitation on the number of cases assigned to each support coordinator. A waiver support coordinator may not have more than thirty-five (35) clients.

    
    

13. Respondent had been an employee with the Department at the time the waiver support coordinators program was established in Dade County. He left the agency to become, and was certified

    as, a Medicaid waiver support coordinator under the home and community based services program.

    
    

14. Respondent qualified Las Americas Support Services as an entity through which waiver support coordinators might work.

    
    

15. In order to become certified Respondent was required to complete training requirements related to statewide and district training. Topics covered in the training included Department rules and policies related to the Medicaid waiver program, support plans, plan implementation, services, record keeping, documentation of services and billing, and the use of the Department's computer system.

    
    

16. As part of the application package completed on or about May 20, 1993, Respondent executed assurances which are part of the Medicaid provider agreement. The assurances are Respondent's representation to the Department that he will comply with specific conditions.

    
    

17. These assurances provided, in pertinent part:

    
    

    3. All individuals employed as support coordinators will meet the minimum require- ments of a bachelors degree in a human service field and two years of experience with individuals who have a developmental disability. Evidence of these qualifications will be maintained in each individual's employee personnel file.

    * * *

    6. The provider shall maintain financial records in accordance with a recognized system of accounting to accurately reflect the details of the business and shall undergo an annual financial audit of its support coordination program, which may be part of

    an agency-wide audit.

    * * *

    21. The provider assures that it will maintain the client central record in accordance with 393, F.S.

    * * *

    24. The provider assures compliance with requirements of Chapter 393, F.S. and the proposed DS/Home and Community Based Services Waiver Rule, 10F-13, F.A.C.

    * * *

    27. The provider assures that no more [than] thirty-five individuals will be assigned to

    a support coordinator who is serving Developmental Services HCBS waiver clients.

    * * *

    29. The provider understands that payment for independent support coordination services is made from state and federal funds and that

    any falsification or concealment of a material fact may be prosecuted under state and federal laws. The provider further understands that such falsification or concealment is a breach of the DS/HCBS certification and may result in cancellation of same by the department.

    * * *

    31. The provider agrees to return to the department any overpayments received that were disbursed to the provider by the depart- ment. In the event that the department discovers an overpayment has been made, the department will notify the provider of such

    a finding. Except for provided in No.32 below, the provider agrees to make repayment within thirty (30) days of recipt (sic) of such notification unless the parties are able to agree upon an alternative schedule.

    
    

18. Respondent attended and completed the statewide training portion for certification in June, 1993. He completed the district training (with information pertinent specifically to District 11) in July, 1993. He was fully certified to perform as a support coordinator from July 1, 1993 through July 1, 1994.

    
    

19. In June, 1994, as part of the recertification process, Respondent executed another assurances agreement. Subsequently, his certification was renewed for the period September 1, 1994 through February 28, 1995.

    
    

20. This second assurances agreement, while not identical to the first, in substance had the same provisions as those outlined above in paragraph 17 above.

    
    

21. For each client to be served by a waiver support coordinator, a support plan must be developed that identifies the specific services needed by the client. Such plan is developed with input from the client, the client's family, as well as the service providers who are to provide the needed services. The driving force to establish the support plan must be the client's individual needs.

    
    

22. Once the support plan is in place the services coordinator must verify that the services are properly and

    satisfactorily delivered to the client. The coordinator must keep accurate case notes reflecting the date, time, and description of all services provided to the client. The documentation maintained by the services coordinator serves to verify that the services were delivered.

    
    

23. As part of the process, the coordinator must also have a cost plan which identifies the expenses budgeted for each service the client is to receive. Every cost plan must be submitted to the Department for approval, and only services which have been approved may be billed by the service coordinator.

    
    

24. Every support coordinator is required to maintain case notes of all activities performed on behalf of a client. No activity may be billed to the Medicaid waiver program which is not supported by case notes reflecting the identity of the client, the date of the service, the time of the service and the description of the service.

    
    

25. At all times material to this case, the support coordinators billed time based upon quarter hour increments. For example, one through fifteen minutes was billed as one unit, sixteen through 30 minutes as two units, and so on for a total of

    4 units per hour.

    
    

26. Each support coordinator was responsible for logging their billing units directly into the Department's computer system.

    
    

27. Only services which have been approved may be billed and may not include administrative duties such as faxing, copying, transferring case records or other office functions which are included in the rate paid to support coordinators.

    
    

28. Each support coordinator is subject to a review wherein Department personnel audit client records to determine compliance with the Medicaid program policy requirements.

    
    

29. In November, 1994, Department personnel were reviewing the qualifications of two persons employed as support coordinators through Respondent's company. When Respondent could not produce either the original degrees or authenticated transcripts for the two coordinators (which would evidence the requisite degree required for the coordinators), Respondent was instructed to return all case records assigned to the two workers to the Department.

    
    

30. When the case records were returned, the Department discovered billing discrepancies. For example, it discovered Respondent had overbilled for certain clients and had billed for

    services not allowed. When this was uncovered, the Department elected to perform an in-depth review of the Respondent's business record keeping. The materials reviewed were from Respondent who was responsible for their origin and accuracy.

    
    

31. From November 1994 through February 1995, the Department attempted to reconcile Respondent's case records with the billing which had been submitted to the agency by the Respondent.

    
    

32. As a result of this audit, it is found the Respondent overbilled by billing more units that were documented.

    
    

33. The Respondent overbilled by billing for services which are not allowed and had not been approved.

    
    

34. The Respondent overbilled by billing for services provided by an unqualified services coordinators for whom appropriate documentation has not been provided.

    
    

35. The Respondent overbilled by exceeding the amount of an authorized payment thereby making a payment not approved by the Department.

    
    

36. In addition to the foregoing, the Respondent attempted to serve seventy (70) clients. Such number exceeds the number of clients a services coordinator is authorized to have.

    
    

37. Based upon the foregoing, the Department decided on March 1, 1995 not to renew Respondent's certification. Respondent timely challenged that decision.

    
    

38. The application and assurances executed by Respondent provided a notice that the failure to comply with the Medicaid waiver policies constitutes grounds for denying or cancelling certification in the program.

    
    

    CONCLUSIONS OF LAW

    
    

39. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings.

    
    

40. The Department bears the burden of proof in this cause to establish the allegations set forth in the agency action letter of March 1, 1995. It has met that burden.

    
    

41. The Medicaid waiver program is a federally-authorized program for developmentally disable clients which the Department

    must administer in accordance with federal guidelines and agency rules.

    
    

42. In this case, the Respondent did not comply with the assurances which he agreed to meet when he joined the program. Such assurances provided notice to Respondent that the failure to abide with the terms set forth would be grounds for cancellation of certification in the program.

    
    

43. The Respondent violated the billing requirements of the Department. Respondent's record keeping irregularities have not been adequately explained nor do the records support the billing and documentation improprieties. Respondent's attempt to serve seventy clients when the assurances clearly limit the number to thirty-five has also not been explained.

    
    

44. Given the inability to reconcile the Respondent's billing with the client records together with the lack of credible explanations for same, the Department had no option, and acted with good cause and appropriate justification, in determining to not renew Respondent's certification.

RECOMMENDATION

Based on the foregoing, it is, hereby, RECOMMENDED:

That the Department of Health and Rehabilitative Services enter a final order affirming the agency action letter of March 1, 1995, which determined not to renew the Respondent's certification.

DONE AND ENTERED in Tallahassee, Leon County, Florida, this 28th day of January, 1997.

JOYOUS D. PARRISH

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(904) 488-9675 SUNCOM 278-9675

Fax Filing (904) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 28th day of January, 1997.

APPENDIX

Rulings on the proposed findings of fact submitted by Petitioner:

1. Paragraphs 1 through 12, 14 through 23, 25 through 31, and 33 are accepted.

2. With regard to paragraph 13, the assurances contained, in substance, the same provisions but were not identical to the first ones executed by Respondent.

3. With regard to paragraph 24, it is accepted that Respondent received a warning regarding soliciting clients otherwise rejected as irrelevant or not supported by the record.

4. With regard to paragraph 32, it is accepted that Respondent was offered assistance for remediation purposes and was not singled-out for disparate treatment; otherwise rejected as irrelevant or argument or comment.

Rulings on the proposed findings of fact submitted by Respondent:

1. Paragraphs 1 and 2 are rejected as argument, comment, or contrary to the weight of the credible evidence.

COPIES FURNISHED:

Myron M. Gold, Esquire FOX AND GOLD, P.A.

2900 South West 28th Terrace Miami, Florida 33133

Hilda A. Fluriach, Esquire Department of Health and

Rehabilitative Services

401 Northwest 2nd Avenue, N-1014 Miami, Florida 33128

Gregory D. Venz, Agency Clerk Department of Children and Families Building 2, Room 204

1317 Winewood Boulevard

Tallahassee, Florida 32399-0700

Richard A. Doran, General Counsel Department of Children and Families Building 2, Room 204

1317 Winewood Boulevard

Tallahassee,Florida 32399-0700

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15 days from the date of this recommended order. Any exceptions to this recommended order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 95-002130

Orders for Case No: 95-002130