STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

AGENCY FOR HEALTH CARE )

ADMINISTRATION, MEDICAID )

PROGRAM INTEGRITY, )

)

Petitioner, )

)

vs. ) CASE NO. 95-4961

) A COMMUNITY HOME HEALTH, INC., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal administrative hearing was held in this case before Patricia Hart Malono, Administrative Law Judge of the Division of Administrative Hearings, on June 18, 1996, in Miami, Florida.

APPEARANCES

The parties were represented at hearing as follows: For Petitioner: Gordon B. Scott, Esquire

Agency for Health Care Administration 2727 Mahan Drive, Fort Knox Number 3 Tallahassee, Florida 32308-5403

For Respondent: No appearance was made.

STATEMENT OF THE ISSUE

The issue presented is whether the respondent committed the violations alleged in the Final Agency Audit Report, and, if so, the penalty which should be imposed.

PRELIMINARY STATEMENT

In a Final Agency Audit Report dated September 1, 1995, the Agency for Health Care Administration, Office of Inspector General, Medicaid Program Integrity (Agency), notified the respondent, A Community Home Health (Community), that it intended to deny Community's Medicaid claims that had been in suspense status and terminate Community from participation in the Medicaid program for a period of 10 years. The basis for the proposed actions was the alleged failure of Community to make records available to the Agency for a prepayment review of the Medicaid claims and its alleged failure to comply with the provisions of the Agency's manual or handbooks or with the provider agreement or with certifications or the claim forms it submitted.

Community timely filed a Petition for Formal Hearing in which it denied the allegations in the Final Agency Audit Report and requested a formal hearing.

The case was referred to the Division of Administrative Hearings for assignment of a hearing officer, and the final hearing was scheduled for January 31 and February 1, 1996. Two attorneys filed Community's Petition for Formal Hearing; both filed motions to withdraw as counsel for Community, and the motions were granted in orders entered January 5 and February 2, 1996.

The January 31 hearing was cancelled and the case held in abeyance in an order entered February 2, 1996; the order of abeyance was vacated and the case rescheduled for hearing in an order dated April 5, 1996. A copy of the Order Vacating Abeyance and Rescheduling Hearing was sent to Douglas Nalls, M.D., as a principal and representative of Community; the notice was returned to the Division with the notation that "Nalls c/o Ideal Country, Moved Left No Address, Unable to Forward, Return to Sender." The final hearing was conducted as scheduled on June 18, 1996. No appearance was made on behalf of Community.

At hearing, the Agency offered the testimony of Charles G. Ginn, Program Administrator for the Agency's Medicaid Program Integrity office. Respondent's Exhibits 1 through 4 were offered and received into evidence.

No transcript of the hearing was filed with the Division, but the Agency timely filed its Proposed Recommended Order.

FINDINGS OF FACT

Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made:

1. The Agency for Health Care Administration is the state agency responsible for administering Florida's Medicaid Program. Section 409.902, Fla. Stat. (1995).

   
   

2. At all times material to this proceeding, Community was a Medicaid provider, having been assigned provider number 0277738-00.

   
   

3. In a letter dated February 17, 1994, the Agency notified Douglas Nalls, M.D., that staff from its Medicaid Program Integrity office would arrive at his office on February 23, 1994, to collect and copy documents supporting certain Medicaid clams submitted by Community. The letter informed Dr. Nalls that the Agency would use the documents to conduct a prepayment review of Community's pending unpaid Medicaid claims.

   
   

4. A second letter, dated April 21, 1994, was sent to Dr. Nalls, in which the Agency notified him that its staff was ready to make arrangements to retrieve copies of the records supporting Community's pending unpaid Medicaid claims.

   
   

5. Both the February 17 and April 21 letters were sent by certified mail, and receipts were received by the Agency showing that the letters had been accepted at the address to which they were sent.

   
   

6. Because Community failed to provide the records requested by the Agency, the Agency was unable to complete its prepayment review of the pending unpaid Medicaid claims.

   
   

7. In the Final Agency Audit Report, the Agency indicated that, based on the violations alleged, Community should be terminated from the Medicaid program

   for a period of 10 years. Although the Agency had considered imposing a lesser penalty, the Agency's determination that a 10-year termination was warranted was based on a review of its authority under section 409.913, Florida Statutes (1993), the Agency's files, the seriousness of Community's offense, and Community's regulatory history.

   
   

   CONCLUSIONS OF LAW

   
   

8. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of these proceedings. 120.57(1), Fla. Stat.

   
   

9. The Final Agency Audit Report in this case raises two issues which must be considered separately. First, the Agency stated its intent to deny the pending unpaid Medicaid claims because Community failed to provide the documentation requested by the Agency to conduct a prepayment audit. 1/ Community has the burden of proving by a preponderance of the evidence its entitlement to payment for the Medicaid claims submitted to the Agency. See Florida Department of Transportation v. J.W.C. Co., Inc., 396 So. 2d 778, 788 (Fla. 1st DCA 1981); Florida Department of Health and Rehabilitative Services, Division of Health v. Career Service Commission, 289 So. 2d 412, 414-15 (Fla. 4th DCA 1974). Because Community did not produce any of the requested records, the Agency was unable to determine the validity of the claims and the amounts, if any, which should be paid. In addition, Community did not appear at the hearing and did not otherwise present any evidence of its entitlement to payment of the subject claims.

   
   

10. The second issue raised in the Final Agency Audit Report is the Agency's intent to impose sanctions on Community for violations of section 409.913((8)(g) and (h), Florida Statutes (1993), which provide:

    
    

    1. The provider has not furnished, upon reasonable notice, such Medicaid-related records as the department found necessary to determine whether Medicaid payments are or were due and the amounts thereof;

    2. The provider is not in compliance

       with provisions of departmental policy manuals or handbooks which have been adopted by reference as rules in the Florida Admin- istrative Code, state laws, federal rules and regulations, a provider agreement between the department and the provider, or certifi- cations found on claim forms submitted by the provider or authorized representative as such provisions apply to the Medicaid program.

       
       

11. The Agency is authorized in section 409.913(9) to impose sanctions on Medicaid providers who violate any of the provisions of section 409.913(8). These sanctions include suspension from the program, termination from the program, and imposition of an administrative fine of $1,000 per violation, not to exceed $25,000 for one audit or investigation.

    
    

12. When the Agency seeks to impose administrative sanctions on a Medicaid provider, it has the burden of proving the allegations stated in its charging document by clear and convincing evidence. See Department of Banking and Finance, Division of Securities and Investor Protection v. Osborne Stern and Co., 670 So. 2d 932, 935 (Fla. 1996). The Agency has met its burden with regard

    to the failure of Community to furnish the requested Medicaid records. The Agency has not, however, met its burden of proving that Community was not in compliance with the provisions of the Agency's manual or handbooks or with the provider agreement or with certifications on the claim forms it submitted.

    
    

13. In section 409.913(10), certain factors are listed which the Agency is required to consider in determining the appropriate sanctions to be imposed for any of the violations identified in section 409.913(8):

    
    

    1. The seriousness and extent of the violation or violations.

    2. Any prior history of violations by the provider.

    3. Evidence of continued violation within the provider's management control of Medicaid statutes, rules, regulations, or policies after written notification to the provider of improper practice or instance of violation.

    4. Any pain and suffering inflicted by the provider on a recipient.

    5. Any action by a licensing agency respecting the provider in any state in which the provider operates.

    6. The extent to which a lesser sanction is sufficient to remedy the violation by the provider, in the best judgment of the department.

    7. The apparent impact on access by recipients to Medicaid services if the provider is suspended or terminated, in the best judgment of the department.

    
    

14. The Agency considered the factors relevant in this case, and the sanction it suggested, termination from the Medicaid program for a period of 10 years, is appropriate under the circumstances.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency for Health Care Administration enter a final order denying the pending unpaid Medicaid claims submitted for payment by A Community Home Health, Inc.; finding A Community Home Health, Inc., guilty of failing to furnish Medicaid-related records necessary to determine which Medicaid payments were due and the amount thereof; and terminating Community Home Health, Inc., from the Medicaid program for a period of 10 years.

DONE AND ENTERED this 31st day of October, 1996, in Tallahassee, Florida.

PATRICIA HART MALONO

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(904) 488-9675 SUMCOM 278-9675

Fax Filing (904) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 31st day of October, 1996.

ENDNOTE

1/ Section 409.913(2), Florida Statutes (1993), provides:

The department may conduct, or may contract for, prepayment review of provider claims to ensure cost-effective purchasing, billing, and provision of care to Medicaid recipients. Such prepayment reviews may be conducted as determined appropriate by the department, without any suspicion or allegation of fraud, abuse, or neglect.

COPIES FURNISHED:

Douglas Nalls, M.D.

A Community Home Health, Inc. Suite 302-B

155 North West 167th Street North Miami, Florida 33169

Gordon B. Scott, Esquire Agency for Health Care

Administration 2727 Mahan Drive Fort Knox Number 3

Tallahassee, Florida 32308-5403

Sam Power, Agency Clerk

Fort Knox Building 3, Suite 3431

2727 Mahan Drive

Tallahassee, Florida 32308

Jerome W. Hoffman General Counsel 2727 Mahan Drive

Tallahassee, Florida 32308

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: 95-004961

Orders for Case No: 95-004961