STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LE JEUNE PHARMACY, )

)

Petitioner, )

)

vs. ) Case No. 95-3509

)

AGENCY FOR HEALTH CARE )

ADMINISTRATION, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case by video teleconference on April 13, 1999, with the Petitioner appearing from Miami, Florida, before J. D. Parrish, a designated Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Dolores Wade

1420 Brickell Bay Drive Number 306

Miami, Florida 33131

For Respondent: Moses E. Williams, Esquire

Agency for Health Care Administration Fort Knox Building 3 Suite 3406-D 2727 Mahan Drive

Tallahassee, Florida 32308-5403

STATEMENT OF THE ISSUE

Whether the Petitioner violated provisions of the Medicaid laws and regulations and, if so, what penalty should be imposed.

PRELIMINARY STATEMENT

This case began on April 21, 1995, when the Agency for Health Care Administration, Medicaid Program Integrity Office (Agency), issued a final agency audit report that sought to impose an administrative fine in the amount of $10,000 against Petitioner, Le Jeune Pharmacy, a Medicaid provider. More specifically, the audit notice claimed Petitioner had been paid by the Florida Medicaid program for services that were unauthorized in whole or in part. The discrepancies in service were later identified by the Agency and related to fourteen Medicaid recipients.

The Petitioner timely challenged the overpayment claim and requested an administrative hearing on the allegations. The case was forwarded to the Division of Administrative Hearings for formal proceedings on July 7, 1995. Thereafter, the hearing was scheduled for December 14, 1995.

On December 1, 1995, Respondent filed a Motion for Continuance which was not granted. At the hearing on

December 14, 1995, the Agency failed to appear. Consequently, a Recommended Order was entered that concluded the Respondent had failed to meet its burden of proof such that the audit claims against the Petitioner must fail. This Recommended Order was issued on January 12, 1996.

The Agency did not enter a final order. Instead, by Order of Remand entered February 13, 1996, but not provided to the

Division of Administrative Hearings until June 22, 1998, the Agency remanded the case back to the Division of Administrative Hearings for further proceedings, including an evidentiary hearing on the merits. In effect, such remand sought to reverse the denial of the Agency's request for continuance of the original hearing and to afford the Agency a second opportunity to litigate its audit in this matter. In accordance with the remand, the case was reopened on June 22, 1998.

The matter was then rescheduled for final hearing for April 13, 1999. At the hearing, the Agency presented testimony from Kathryn N. Holland, a pharmacist employed by the Medicaid

Program Integrity Office who conducted the audit of records; and Kenneth Yon, also a pharmacist who is the Medicaid Program Integrity Office administrator. The Agency's Exhibits numbered 1 through 19, 21, 22, and 23 were admitted into evidence. The Request for Admissions to Petitioner have not been deemed admitted and Respondent's Exhibit 20 was not received into evidence.

Petitioner presented testimony from Marion Catrina, a friend of Dolores Wade. Petitioner did not present documentary evidence.

A transcript of the proceedings has not been filed. The parties requested and were granted twenty days leave from the hearing date within which to file proposed recommended orders.

Proposals submitted have been reviewed in the preparation of this Recommended Order.

FINDINGS OF FACT

1. The Agency is the state agency responsible for administering the Medicaid program in Florida.

2. The Agency makes payments for pharmacy services to qualified providers for pharmacy services to eligible persons in accordance with federal regulations.

   
   

3. At all times material to the allegations of this case, Petitioner was a qualified provider with a Medicaid Provider Agreement to abide by all applicable regulations.

4. At issue in this matter are payments made to Petitioner related to fourteen Medicaid recipients. It is not disputed that the individuals were eligible persons for services. The disputed matters pertain to the dispensing of drugs and the records documenting such actions.

5. In determining its assessment of Petitioner's records, the Agency did not review the Petitioner's original records. Moreover, the Agency did not verify that the copies of the records it did review were accurate as to the originals.

6. None of the physicians identified on the copies of prescription records reviewed by the Agency were contacted to verify the appropriate prescriptions for the named recipients.

7. None of the prescription records relied on by the Agency were in the possession or control of Petitioner at the time the copies were reportedly made for Agency review.

8. Petitioner has not admitted wrongdoing in this cause. Criminal charges of wrongdoing against Petitioner or Dolores Wade based upon allegations similar to those at issue were not prosecuted.

9. Disciplinary action against Petitioner and Dolores Wade by the Board of Pharmacy was wholly unrelated to the allegations of this case.

10. The Agency made no independent assessment of Petitioner's actual records to assert the claims of the audit.

    CONCLUSIONS OF LAW

    
    

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

12. The Agency bears the burden of proof in this cause to establish the allegations asserted in the Medicaid audit. It seeks to impose an administrative fine based upon the alleged records for Le Jeune Pharmacy. It has failed to meet its burden of proof.

13. In this case, the Agency has asserted that pharmacy records were not kept as required by law and therefore resulted in an overpayment of Medicaid to the provider. The basis for this assertion was the Agency's review of copies of records which

    were obtained from a third party, not a party to these proceedings. Petitioner consistently objected to such documents as they were not the originals of her records and were inaccurate. The Agency did not establish with any certainty that the records relied on were accurate copies of Petitioner's records. Moreover, the Agency did not contact any physicians to verify the accuracy of prescription records.

14. Finally, at the time of hearing and well before, the Agency knew that Petitioner's records had been seized and were not in the possession of Dolores Wade. The Agency knew that criminal action based on such records had not resulted in any finding of wrongdoing. Three and one-half years after the initial action in this case, the Agency remanded the matter to the Division of Administrative Hearings for an evidentiary hearing on copies of records which dated back to 1990. There is no competent evidence to support a conclusion that Petitioner failed to maintain appropriate medical records at the time of service. Further there is no competent evidence to support a conclusion that Petitioner failed to abide by Medicaid provider requirements. The copies of records not established as true and correct records maintained by the Petitioner are wholly inadequate to confirm the findings of the disputed audit. It is concluded the Agency has failed to meet its burden of proof.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency for Health Care Administration enter a final order amending its final agency audit report to delete any finding of a violation of the Medicaid laws and regulations, and to reverse the assessment of an administrative fine.

DONE AND ENTERED this 25th day of June, 1999, in Tallahassee, Leon County, Florida.

COPIES FURNISHED:

Sam Power, Agency Clerk

J. D. PARRISH Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 25th day of June, 1999.

Agency for Health Care Administration Fort Knox Building 3, Suite 3431

2727 Mahan Drive

Tallahassee, Florida 32308

Julie Gallagher, General Counsel Agency for Health Care Administration Fort Knox Building 3, Suite 3431

2727 Mahan Drive

Tallahassee, Florida 32308

Moses E. Williams, Esquire

Agency for Health Care Administration Fort Knox Building 3, Suite 3431

2727 Mahan Drive

Tallahassee, Florida 32308-5403

Dolores P. Wade

1420 Brickell Bay Drive Apartment 306

Miami, Florida 33131

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: 95-003509

Orders for Case No: 95-003509