STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF CHILDREN AND ) FAMILY SERVICES )

)

Petitioner, )

)

vs. ) Case No. 97-1669

)

TIMOTHY ROBINSON, )

)

Respondent.1 )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case on July 9, 1997, and August 11, 1997, via video teleconference, with the Petitioner and the Respondent appearing in Miami, Florida, before Patricia Hart Malono, a duly-designated Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Caridad Planas, Esquire

Department of Children and Families

401 Northwest 2nd Avenue, N-812 Miami, Florida 33128

For Respondent: William H. (Timothy) Robinson, pro se

1771 Southwest 83rd Avenue Miramar, Florida 33025

STATEMENT OF THE ISSUES

Whether the Respondent's certification under the Home and Community Based Services Medicaid Waiver Program should be suspended.

PRELIMINARY STATEMENT

In a letter dated February 5, 1997, the Department of Children and Families ("Department") notified Timothy Robinson that it was suspending his certification in District 11 to provide services under the Home and Community Based Services Medicaid Waiver for Developmental Services. The reasons for this action were stated as follows:

On December 17, 1996, we forwarded to you, via certified mail, a request for back up documentation in order to validate billing for ten customers (attached). We had requested that this information be provided to our office within 14 days. To date, 49 days have elapsed and we have not received a response to our request.

At this time we are suspending your certification in District 11 to provide services under the HCBS Medicaid Waiver for Developmental Services. We have not been able to confirm that services for which you submitted invoices have been provided.

You must immediately cease any and all work currently authorized and notify the appropriate support coordinator of your termination of assignments.

(Emphasis in original.) Mr. Robinson timely requested a formal hearing, and the Department transmitted this case to the Division of Administrative Hearings for assignment of an Administrative Law Judge. The hearing was initially scheduled for June 12, 1997, but was rescheduled for July 9, 1997. It was not possible to complete the hearing on that date, and the hearing was completed on August 11, 1997.

At the hearing, the Department presented the testimony of two witnesses, Kirk Ryon, the Medicaid Waiver Coordinator for District 11, and Timothy Robinson. The Department's Exhibits 1 through 15 were offered and received into evidence.2

Mr. Robinson testified in his own behalf and presented the testimony of four additional witnesses: Debra Kahn; Willie Mary Myers; Jerry Ramirez; and Dr. Michael Wesolowski, Senior Psychologist for District 11 Developmental Services.

Mr. Robinson offered into evidence Respondent's Exhibits 1 through 17.3 Respondent's Exhibits 1; 5 through 8; 10; 12; 14; and 16 were received into evidence without objection. The Department objected on the grounds of relevance to Respondent's Exhibits 2 through 4; 9; 11; 13; 13A; 13B; 15, pages 302, 303, and 304; and 17, and rulings on the admissibility of these exhibits were withheld pending entry of this Recommended Order. Having considered the record in this case, including the charges against Mr. Robinson, the transcript of the proceedings, and the contents of the Department's Proposed Recommended Order, the specified exhibits are received into evidence.

At the hearing, the Department requested that official recognition be taken of Chapter 393, Florida Statutes (1995 and Supp. 1996); of Rules 10F-4.023-.031, Florida Administrative Code; and of Title 42, Sections 441.300-.404, Code of Federal Regulations (1994). Although these documents were given official recognition at the hearing, the Department's request that

official recognition be taken of what it identified as "Rules 10F-4.021-.031, Florida Administrative Code," has been reconsidered and is rejected. A review of the Florida Administrative Code reveals that these rules first became effective September 23, 1996, and were transferred to Rule Chapter 65B-4 and renumbered Rules 65B-4.023-.31. Section 90.202(9), Florida Statutes, provides that official recognition may be taken of "[r]ules promulgated by governmental agencies of the state which are published in the Florida Administrative Code or in bound written copies." Since the document that the

Department submitted for official recognition is not published in the Florida Administrative Code and since it cannot be discerned from the copy provided whether this document is published in "bound written copies," official recognition is not appropriate. However, official recognition is taken of Rules 65B-4.023-.031, Florida Administrative Code.

The transcript of the proceedings was filed with the Division of Administrative Hearings, and the parties timely filed proposed recommended orders, which have been duly considered.4

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 Department of Children and Family Services is the state agency responsible for administering what is known as the

   Home and Community Based Services Medicaid Waiver Program ("Waiver Program") for the developmentally disabled. Chapter 393, Florida Statutes. The Department is specifically charged with the responsibility for establishing by rule procedures for carrying out the mandates of Sections 393.001-.501. Section 393.501(1), Florida Statutes.

2. William L. "Timothy" Robinson is certified by the Department as a behavior analyst, which means he is qualified to "design[] and implement[] . . . behavioral programs for persons who are developmentally disabled." Section 393.165. Only persons who are certified behavior analysts may be certified to provide services to clients in the Waiver Program.

3. As part of its procedure for certifying behavior analysts to provide services under the Waiver Program, the Department requires that applicants execute a contract consisting of several parts. Part III of the contract is entitled Assurances, and, by his or her signature, the applicant agrees to comply with state and federal laws, rules, and policies.

4. On July 19, 1995, Mr. Robinson applied in his individual capacity for certification to provide behavior analyst services to clients in the Waiver Program administered in the Department's District 11. He signed Part III of the application, and, at some point after July 19, 1995, Mr. Robinson was certified to provide services to clients in the Waiver Program.

5. Subsequently, Mr. Robinson incorporated his business, and, on November 18, 1996, as Executive Director of Behavior Management Training Systems, Inc., he again executed Part III of the application, which contains the same provisions as the document Mr. Robinson signed as an individual on July 19, 1995.

6. On November 17, 1996, as part of the application process, Mr. Robinson executed on behalf of Behavior Management Training Systems, Inc., a document entitled "Agency for Health Care Administration, Electronic Claims Submission Agreement." Paragraph 8 of this document states that "[p]rovider shall abide by all Federal and State statutes, rules, regulations and manuals governing the Florida Medicaid Program and those conditions as set out in the Medical Assistance Provider Agreement entered into previously."

7. Mr. Robinson was retained by several support coordinators5 to provide behavior analyst services to clients in the Waiver Program. He submitted his monthly invoices and reports to the support coordinators, who forwarded them to Unisys, the Department's billing agent, for payment.

8. During the fall of 1996, Kirk Ryon, the Medicaid Waiver Coordinator for District 11, received complaints from at least one support coordinator alleging that Mr. Robinson's documentation was not adequate to support his invoices for services.6 On December 17, 1996, Mr. Robinson met with Mr. Ryon and several other individuals employed by the Department to

   discuss the complaints that had been made regarding

   
   

   Mr. Robinson's billing practices and the behavior analyst services he provided to clients paid both through the Waiver Program and through general revenue.7 During this meeting,

   Mr. Robinson was asked to provide backup documentation to support his invoices for services.

9. On December 17, after the meeting, Mr. Ryon wrote a letter to Mr. Robinson following up on the discussion at the meeting and requesting backup documentation for services provided to ten clients, four of whom received services under the Waiver Program. The remaining six clients received services from

   Mr. Robinson that were paid from general revenue.

   
   

10. Although Mr. Robinson may not have received the December 17 letter,8 he wrote a letter that he dated January 14, 1996, 9 to Dr. Michael Wesolowski, an employee of the Department who attended the December 17 meeting. Mr. Robinson sent with the letter to Dr. Wesolowski monthly reports for June, July, August, and September 1996 for Felicia's House, one of the facilities at which he provided behavioral analyst services.

11. Mr. Robinson acknowledged in the January 14 letter that he sent these documents in response to the Department's request for backup documentation for his billings and that the Department's request was made in response to complaints received by the Department and discussed at the December 17 meeting.

    Dr. Wesolowski did not provide Mr. Ryon with a copy of this letter or the attached documentation.10

12. Mr. Robinson provided no other documentation to the Department prior to February 5, 1997, when Mr. Ryon notified Mr. Robinson that his certification to provide services under District 11's Waiver Program was suspended.

13. After he requested a formal hearing to contest the allegations in the February 5 letter, Mr. Robinson provided the Department during the course of discovery all of the documents in his possession relating to the services provided to the four clients in the Waiver Program. These documents, together with the documents provided by Mr. Robinson to Dr. Wesolowski in January 1997, were provided to Mr. Ryon by the Department's counsel two days before the formal hearing in this case commenced. Mr. Ryon reconciled the documents with the invoices Mr. Robinson had submitted and found that the documentation provided did not support many of the units11 of service for which Mr. Robinson had been paid.

    CONCLUSIONS OF LAW

    
    

14. The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding and of the parties thereto pursuant to section 120.57(1), Florida Statutes (1997).

15. Based on the facts found herein, Mr. Robinson did provide documents to the Department prior to February 5, 1997, in

    response to the Department's request of December 17, 1996. However, the Department has proven clearly and convincingly that these documents, together with the documents that Mr. Robinson provided the Department during discovery in this administrative proceeding, fail to support the units of service for which he billed and was paid under the Waiver Program.

16. The Department has the authority to take disciplinary action against Mr. Robinson pursuant to the provisions of Section 409.913, Florida Statutes. In the Electronic Claims Submission Agreement executed by Mr. Robinson, he agreed to "abide by all Federal and State statutes, . . . governing the Florida Medicaid Program." Section 409.913 provides in pertinent part:

    (8) A Medicaid provider shall retain medical, professional, financial, and business records pertaining to services and goods furnished to a Medicaid recipient and billed to Medicaid for a period of 5 years after the date of furnishing such services or goods. The agency may investigate, review, or analyze such records, which must be made available during normal business hours. However, 24-hour notice must be provided if patient treatment would be disrupted. The provider is responsible for furnishing to the agency, and keeping the agency informed of the location of, the provider's Medicaid- related records. The authority of the agency to obtain Medicaid-related records from a provider is neither curtailed nor limited during a period of litigation between the agency and the provider.

    ***

    
    

    (14) The agency may seek any remedy provided by law, including, but not limited to, the remedies provided in subsections (12) and (15) and s. 812.035, if:

    ***

    
    

    (c) The provider has not furnished or has failed to make available such Medicaid- related records as the agency has found necessary to determine whether Medicaid payments are or were due and the amounts thereof;

    
    

17. Among the penalties provided in Section 409.913(15) is "[s]uspension for a period of time of not more than 1 year." Section 409.913(15)(a).

18. In its Proposed Recommended Order, the Department has recommended that Mr. Robinson's certification to provide services under the Waiver Program be discontinued. This proposed penalty is rejected because it was not the penalty identified in the letter of February 5, 1997. Williams v. Turlington, 498 So. 2d

468 (Fla. 3d DCA 1986)(penalty imposed on respondent in license disciplinary proceeding cannot be more severe than most severe potential penalty of which respondent had notice).

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the certification of William L. "Timothy" Robinson to provide services under the Home and Community Based Services Medicaid Waiver Program be suspended until February 5, 1998, one (1) year from the effective date of his suspension on February 5, 1997.

DONE AND ENTERED this 22nd day of January, 1998, in Tallahassee, Leon County, Florida.

PATRICIA HART MALONO

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 22nd day of January, 1998.

ENDNOTES

1/ The parties in this case were realigned at the hearing to reflect both the order and the burden of proof. Neither of the parties acknowledge this in their proposed recommended orders.

2/ The Department's exhibits were identified as Petitioner's Exhibits to reflect the realignment of the parties. Nonetheless, in its Proposed Recommended Order, the Department refers to its exhibits as Respondent's Exhibits and to Mr. Robinson's exhibits as Petitioner's Exhibits.

3/ Mr. Robinson's exhibits were identified as Respondent's Exhibits to reflect the realignment of the parties.

4/ Those documents which Mr. Robinson attached to his Proposed Recommended Order which were not received into evidence at the formal hearing or which were not approved late-filed exhibits are not a part of the record of this proceeding and have not been considered in preparing this Recommended Order.

5/ The services provided to clients in the Waiver Program are identified and coordinated by "support coordinators," who are certified by the Department and work with it as independent contractors. A support coordinator is chosen by the developmentally disabled individual and his or her family, and the role of the support coordinator is to arrange for necessary services to be provided to the client. The support coordinator retains a service provider who is certified to provide the particular service and is certified to provide such services to clients in the Waiver Program. The support coordinator requests Department approval of the services and authorization for the funds to provide the service. Once the service is approved and the funds allocated, the support coordinator is responsible for supervising service providers, and such providers submit their monthly invoices and supporting documentation to the support coordinator. The support coordinator reviews the quality and quantity of the service provided and submits the service provider's bills directly to the Department's billing agent for payment.

6/ The Department also received complaints that persons employed by Mr. Robinson did not have the required certification to provide behavior analyst services. This issue was not mentioned in the letter dated February 5, 1997, advising Mr. Robinson that his certification was suspended and, therefore, is not an issue in this case. See Cottrill v. Department of Insurance, 685 So. 2d 1371 (Fla. 1st DCA 1996); Kinney v. Department of State, 501 So. 2d 129, 133 (Fla. 5th DCA 1987)(disciplinary action may be taken against a licensee based only upon the offenses specifically alleged in the administrative complaint); Wray v.

Department of Professional Regulation, Board of Medical Examiners, 435 So. 2d 312 (Fla. 1st DCA 983).

7/ Some developmentally disabled clients receive services which are paid by the Department from general revenue, rather than Medicaid, funds.

8/ Mr. Robinson claimed that he never received the December 17 letter. Mr. Ryon testified that the letter was sent via certified mail, return receipt requested, but the Department did not introduce into evidence a copy of the return receipt showing that the letter had been delivered to Mr. Robinson.

9/ The letter was actually written on January 14, 1997.

10/ Dr. Wesolowski and Mr. Ryon work in separate units of the Department. Although both units apparently arrange for and authorize payment for services provided to the developmentally disabled, the funding source for the program Dr. Wesolowski supervises is general revenue, while the funding source for the program Mr. Ryon supervises is Medicaid.

11/ A unit is a fifteen-minute block of time which provides the basis for billing for services provided to a particular client.

COPIES FURNISHED:

Caridad Planas, Esquire

Department of Children and Families

401 Northwest 2nd Avenue, Suite N812 Miami, Florida 33128

William H. Robinson, pro se 1771 Southwest 83rd Avenue Miramar, Florida 33025

Gregory D. Venz, Agency Clerk

Department of Children and Family Services 1317 Winewood Boulevard

Building Two, Room 204 Tallahassee, Florida 32399-0700

Richard Doran, General Counsel

Department of Children and Family Services 1317 Winewood Boulevard

Building Two, Room 204 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: 97-001669

Orders for Case No: 97-001669