STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

OSCAR SANSONI, )

)

Petitioner, )

)

vs. ) Case No. 97-1328

)

AGENCY FOR HEALTH CARE )

ADMINISTRATION, )

)

Respondent. )

)

RECOMMENDED ORDER

On October 6, 1997, a formal administrative hearing was held in this case by televideo before J. Lawrence Johnston, Administrative Law Judge, Division of Administrative Hearings. (The Administrative Law Judge and some of the hearing participants were in a specially-equipped hearing room in Tallahassee, while the other hearing participants were in a specially-equipped hearing room in Tampa, Florida. The two hearing rooms were connected by televideo.)

APPEARANCES

For Petitioner: Jack B. Pugh, Esquire

Pugh and Associates, P.A. United National Bank Tower

1645 Palm Beach Lakes Boulevard Suite 1080

West Palm Beach, Florida 33401

For Respondent: Gordon Scott, Esquire

Agency for Health Care Administration 2727 Mahan Drive

Tallahassee, Florida 32399

STATEMENT OF THE ISSUE

The issue in this case is whether the Agency for Health Care Administration (AHCA) should enroll the Petitioner, Oscar Sansoni, as a Medicaid provider of support coordination services.

PRELIMINARY STATEMENT

By letter dated January 9, 1997, AHCA's Medicaid Director notified the Petitioner that AHCA was denying the Petitioner's application for enrollment as a Medicaid provider of support coordination services. The Petitioner requested formal administrative proceedings, and the matter was referred to the Division of Administrative Hearings (DOAH).

Initially, the case was scheduled for final hearing on

June 5, 1997, but it was postponed until October 6, 1997, because counsel for the Petitioner did not receive the Notice of Hearing.

At final hearing, the Petitioner had documentation relating to DOAH Case Nos. 90-4332C and 96-3199 admitted in evidence as Petitioner's Exhibit 1. AHCA called two witnesses and had AHCA Exhibits 1, 2, and 3 admitted in evidence. In addition, at AHCA's request, the Final Order entered in DOAH Case No. 90-4332C was officially recognized. The Petitioner testified in rebuttal.

After presentation of evidence, AHCA ordered the preparation of a transcript of the final hearing, and the parties were given ten days after the filing of the transcript in which to file proposed recommended orders. The transcript was filed on

October 15, 1997, but an Agreed Motion for Extension of Time to File Proposed Recommended Orders was granted, and the time for

filing was extended until November 14, 1997. Only AHCA filed a proposed recommended order.

FINDINGS OF FACT

1. In 1990, the former Department of Health and Rehabilitative Services (HRS) preliminarily confirmed a report of abuse or neglect against the Petitioner, Oscar Sansoni (report No. 90-045389). The Petitioner asked that the report be expunged and asked for formal administrative proceedings when HRS denied his request (DOAH Case 90-4332C). Upon commencement of the hearing in DOAH Case 90-4332C, the Petitioner withdrew his request for expunction "upon condition that such withdrawal would not prejudice his right to request, at a later date, further proceeding on the issue of an exemption from disqualification for employment." A Recommended Order of Dismissal was entered in the case on October 26, 1990, on the basis of the Petitioner's withdrawal of his expunction request. On August 6, 1991, a Final Order was entered on the basis of the Recommended Order of Dismissal; it denied the expunction request and confirmed the report.

2. The Petitioner was initially certified by HRS to provide support coordination services under Florida's Medicaid waiver program in November 1993. He provided those services in District

   6 and in District 14, but not without some problems in both districts.

3. The first survey of the Petitioner conducted in District

   
   

   14 on September 21, 1994, revealed five major areas of concern:

   
   

   1. support plans did not authorize services; (2) cost plans (plans of care) did not authorize purchase of services; (3) case notes did not substantiate billing; (4) case notes were not in sufficient detail; and (5) planning prior to changing client support was inadequate. As a result, District 14 withdrew the Petitioner's ability to process billings for 90 days.

4. The first survey of the Petitioner conducted in District

   
   

   6 on October 21, 1994, revealed most of the same concerns as in District 14. (The exception was that the Petitioner was not criticized for inadequate planning.)

5. To the Petitioner's credit, he improved following the initial surveys. A follow-up survey conducted in District 14 on January 24, 1995, revealed that the Petitioner was in full compliance. A follow-up survey in District 6 also revealed progress, but the Petitioner was not considered to be providing better than adequate services there.

6. On December 29, 1994, the Petitioner signed a verification that he had obtained or would soon be obtaining a background screening, as required of all HRS Developmental Services Medicaid waiver support coordinators.

7. During a routine review on or about May 24, 1995, HRS

   discovered that the Petitioner had not yet obtained or even applied for a background screening. HRS conducted a background screening of the Petitioner which revealed the confirmed report of abuse or neglect, report No. 90-045389. As a result, HRS took action to revoke the Petitioner's Medicaid waiver certification.

8. The outcome of the revocation proceeding is not clear from the record, but it appears from the evidence that the Petitioner was required to relinquish 34 District 6 case files for handling by other support coordinators. Review of those files revealed that 15 of the 34 had no support plans or overdue support plans. Most of the case files had no case notes. The Petitioner asked for an extension of time until June 5, 1995, to submit missing case notes and support plans. On June 9, 1995, he submitted some but not all of the missing case notes and support plans. More missing case notes and support plans were submitted on July 27, 1995, along with billings for support services. Still more missing case notes and support plans with additional billings for support services were submitted on January 12, 1996.

   The Petitioner let it be known that he was spacing the submission of these documents to optimally serve his cash-flow needs.

9. District 6 reviewed the Petitioner's case notes and support plans after January 12, 1996, and found them to be extremely unprofessional, contrary to state statute and rule relative to confidentiality, and lacking in substance relative to the implementation of goals on the support plan. Many support

   plans were late. The Petitioner failed to comply with many of the assurances required of Medicaid waiver support coordinators.

10. At a later date, the Petitioner applied for Medicaid waiver certification on behalf of Dare to Dream, Inc. HRS denied the application, and the Petitioner requested formal administrative proceedings. The case was referred to DOAH, where it was given Case No. 96-3199.

11. Case No. 96-3199 was set for final hearing on September 20, 1996, but HRS filed a Motion for Suggestion of Mootness on September 17, 1996. In the motion, HRS conceded that the Petitioner met all of the certification criteria set out in Florida Administrative Code Rule 59G-8.200(12)(b)20 and that there was no valid, legal ground for denying certification. It gave assurance that HRS would issue the Medicaid waiver certification letter "within the next week."

12. The Petitioner initially opposed the motion "out of frustration" but withdrew his opposition at a telephone hearing held on the motion on September 18, 1996, and an Order Dismissing Proceeding, Relinquishing Jurisdiction, and Closing File was entered on September 19, 1996, returning jurisdiction to HRS for issuance of the Medicaid waiver certification. HRS issued a one- year Medicaid waiver certification to Dare to Dream, Inc., on September 18, 1996.

13. The letter transmitting the one-year certification to Petitioner explained that, effective January 1, 1995, all

    providers of Developmental Services/Home and Community Based Services of Support Coordination were required to have a Medicaid provider number. HRS agreed to forward the Petitioner's completed application for a provider number to the Agency for Health Care Administration (AHCA).

14. When HRS forwarded the Petitioner's application for enrollment as a Medicaid provider, HRS included its evaluation of the Petitioner's previous performance and a strong recommendation that the application be denied.

15. AHCA received the Petitioner's application on October 31, 1996. On January 9, 1997, AHCA advised the Petitioner that it intended to deny the application: (1) because, contrary to representations in the application, the

    Petitioner's Medicaid waiver certification had been revoked, not suspended, by HRS in May 1995; (2) because the Medicaid waiver certification had not been restored; (3) because the Petitioner had on his record a confirmed report of abuse or neglect; and (4) because, for the foregoing reasons, as well as the Petitioner's performance history as a provider of support coordination services for HRS, AHCA concurred with HRS' recommendation that the application be denied.

16. The Petitioner, in his rebuttal, explained: (1) that he understood his Medicaid waiver certification to have been suspended, not revoked; and (2) that, besides, it was restored by the time of his application. He also had admitted in evidence

    documentation relating to DOAH Case Nos. 90-4332C and 96-3199 (which provide some of the support for Findings 1 and 10-13, supra.) However, the Petitioner put on no evidence contrary to the other grounds for HRS' recommendation that the application be denied.

    CONCLUSIONS OF LAW

    
    

17. Section 409.907, Florida Statutes (Supp. 1996), provided in pertinent part:

    1. Upon receipt of a completed, signed, and dated application, and after any necessary investigation by the agency, which may include Florida Department of Law Enforcement background checks, the agency must either:

       1. Enroll the applicant as a Medicaid provider; or

       2. Deny the application if, based on the grounds listed in subsection (9) it is in the best interest of the Medicaid program to do so, specifying the reasons for denial.

          
          

    2. The agency may deny enrollment in the Medicaid program to a provider if the provider, or any officer, director, agent, managing employee, or affiliated person, or any partner or shareholder having an ownership interest equal to 5 percent or greater in the provider if the provider is a corporation, partnership, or other business entity, has:

       1. Made a false representation or omission of any material fact in making the application, including the submission of an application that conceals the controlling or ownership interest of any officer, director, agent, managing employee, affiliated person, or partner or shareholder who may not be eligible to participate;

       2. Been or is currently excluded, suspended, terminated from, or has involuntarily withdrawn from participation in, Florida's Medicaid program or any other state's Medicaid program, or from participation in any other governmental or private health care or health insurance program;

    * * *

    
    

    (j) Been previously found by a licensing, certifying,

    or professional standards board or agency to have violated the standards or conditions relating to licensure or certification or the quality of services provided . . . .

    
    

18. In this case, the evidence is clear that the Petitioner made a false representation or omission of a material fact when he indicated on his application for enrollment that his Medicaid waiver certification had been only suspended, not revoked. This is a ground for denial of the application under Section 409.907(9)(a), Florida Statutes (Supp. 1996).

19. It also is clear that the Petitioner is named as perpetrator in a confirmed report of abuse or neglect. The dismissal of DOAH Case No. 90-4332C, operated not to expunge the report, but to confirm it. Based on the confirmed report, as well as his unsatisfactory performance for HRS, the Petitioner was excluded, suspended, or terminated from participation in Florida's Medicaid program. Although AHCA was incorrect in thinking that the Petitioner still was excluded, suspended, or terminated at the time of the application, his having been excluded, suspended, or terminated was itself a ground for denial of the application under Section 409.907(9)(j), Florida Statutes (Supp. 1996).

20. Regardless whether the Petitioner ever had been excluded, suspended, or terminated, based on the revocation of his Medicaid waiver certification, his history of inadequate performance as a provider of support coordination services for HRS was itself a ground for denial of the application under

    Section 409.907(9)(j), Florida Statutes (Supp. 1996).

    
    

21. The Petitioner, as applicant for enrollment as a Medicaid provider, had the burden to prove his entitlement to enrollment. See Dept. of Transportation vs. J.W.C. Company, Inc., 396 So. 2d 778 (Fla. 1st DCA 1981); Balino vs. Department of Health and Rehabilitative Services, 348 So.2d 349 (Fla. 1st DCA 1977). This meant he had to prove that it was "in the best interest of the Medicaid program to" enroll him as a provider. The Petitioner's evidence was insufficient to support his entitlement to enrollment.

22. The Petitioner's case relied almost exclusively on the favorable disposition of DOAH Case No. 96-3199 and HRS' issuance of a one-year Medicaid waiver certification to Dare to Dream, Inc., on September 18, 1996. Those two things were based on HRS' concession that the Petitioner met the requirements of Florida Administrative Code Rule 59G-8.200(12)(b)20--i.e., that he had the requisite education and two years of professional experience in developmental disabilities, mental health, counseling, social work, guidance, or health and rehabilitative services. It was the Petitioner's position that those two things--the favorable disposition of Case No. 96-3199, and the issuance of the Medicaid waiver certification--required AHCA to enroll the Petitioner as a Medicaid provider. But HRS and AHCA were two separate and distinct state agencies, and the issuance of a Medicaid waiver certification under the criteria set out in Florida

Administrative Code Rule 59G-8.200(12)(b)20, is not the same thing as enrollment as a Medicaid provider under Section 409.907, Florida Statutes (Supp. 1996). Neither res judicata nor collateral estoppel apply. See Stogniew vs. McQueen, 656 So. 2d 917 (Fla. 1995).

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 Petitioner's application for enrollment as a Medicaid provider.

RECOMMENDED this 15th day of January, 1998, at Tallahassee, Leon County, Florida.

J. LAWRENCE JOHNSTON 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

Filed with the Clerk of the Division of Administrative Hearings this 15th day of January, 1998.

COPIES FURNISHED:

Jack B. Pugh, Esquire Suite 1080

1645 Palm Beach Lakes Boulevard West Palm Beach, Florida 33401

Gordon Scott, Esquire

Agency for Health Care Administration Building 3, Suite 3431

2727 Mahan Drive

Tallahassee, Florida 32308

Sam Power, Agency Clerk

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

2727 Mahan Drive

Tallahassee, Florida 32308

Jerome W. Hoffman, General Counsel Agency for Health Care Administration 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: 97-001328

Orders for Case No: 97-001328