STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CHOICES IN SUPPORT AND )

SERVICES, INC., )

)

Petitioner, )

)

vs. ) Case No. 01-1977MPI

)

AGENCY FOR HEALTH CARE )

ADMINISTRATION, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a final hearing was conducted in this case on January 16, and 17, 2002, at Miami, Florida, before Administrative Law Judge Michael M. Parrish of the Division of Administrative Hearings

APPEARANCES

For Petitioner: Steven M. Weinger, Esquire1

Helena Tetzeli, Esquire

Kurzban, Kurzban, Weinger & Tetzeli, P.A. 2650 Southwest 27th Avenue

Miami, Florida 33133

For Respondent: Kelly Bennett, Esquire

L. William Porter II, Esquire

Agency for Health Care Administration 2727 Mahan Drive, Suite 3431

Tallahassee, Florida 32308-5403 STATEMENT OF THE ISSUE

The issue in this case concerns whether the Petitioner, Choices in Support and Services, Inc., (“Petitioner” or

"Choices") is obligated to repay $603,895.68 to the Respondent, Agency for Health Care Administration ("Respondent" or "AHCA") for Medicaid monies that were paid to the Petitioner for services allegedly rendered by non-certified support coordinators who were not enrolled as Medicaid Providers.

PRELIMINARY STATEMENT

During the relevant audit period (January 1, 1998 through April 30, 2000) the Petitioner was an authorized Medicaid provider, providing support coordination services to Medicaid recipients. The Petitioner billed for and received payments for services, some of which the AHCA now asserts were overpayments. The AHCA assertions are based primarily on allegations that ten of the Petitioner's employees rendered services in violation of Medicaid rules, regulations, and policies because at the time of providing services those ten employees were neither certified by the Department of Children and Families (“DCF”) as support coordinators, nor were they enrolled by the AHCA in the Medicaid Program as Medicaid Providers, both of which are requirements of the Medicaid Program. Additionally, the AHCA asserts that there were a number of instances of Medicaid claims by the Petitioner for which the documentation was inadequate or for which there was no documentation at all to support the Medicaid claims.

The AHCA is responsible for administering the Florida Medicaid Program. As one of its duties, the AHCA must recover

"overpayments . . . as appropriate," the term "overpayment" being statutorily defined to mean "any amount that is not authorized to be paid by the Medicaid program whether paid as a result of inaccurate or improper cost reporting, improper claiming, unacceptable practices, fraud, abuse, or mistake." See Section 409.913(1)(d), Florida Statutes. This case arises out of the AHCA's attempt to recover alleged overpayments from Petitioner, a Developmental Services Support Coordination Agency.

At the final hearing the AHCA presented the testimony of Effie Stephan, the auditor who investigated this matter. The AHCA also had 16 exhibits marked for identification. One of the exhibits was withdrawn, two were not offered in evidence, official recognition was taken of one exhibit, objections to two of the exhibits were sustained, and ten of the AHCA's exhibits were received in evidence, some only for a limited purpose. The Petitioner did not present the testimony of any additional witnesses. The Petitioner did have four exhibits marked for identification, but did not offer any of those exhibits into evidence. After the post-hearing ruling on some evidentiary matters on which ruling had been reserved at the hearing, the parties were advised of the rulings and were also advised of the deadline for filing their respective proposed recommended orders.2 The Respondent filed a timely proposed recommended

order. As of the date of this Recommended Order, the Petitioner has filed neither a proposed recommended order nor any similar

document.

FINDINGS OF FACT

1. As an enrolled Medicaid provider, Petitioner is authorized, under a provider agreement with AHCA, to provide support coordination services to Medicaid recipients.

2. At all times material to this proceeding, Petitioner was authorized to provide support coordination services to Medicaid recipients eligible for assistance under a program called the Developmental Services Waiver ("DS Waiver"), a home and community-based ("HCB") waiver program.

3. The "audit period" that is the subject of the AHCA's recoupment effort is January 1, 1998, to April 30, 2000. During this audit period, the Medicaid Program paid the Petitioner

   $603,895.68 for the support coordination services that are at issue in this proceeding. The AHCA contends that the entire

   $603,895.68 is subject to recoupment because, under the DS Waiver program, support coordinators are (a) required to be certified by DCF, (b) required to be enrolled in the Medicaid Program as Medicaid Providers, and (c) required to make legible case notes in sufficient detail to document the services rendered and to allow an audit of the appropriateness of the

   services. The case notes are required to be maintained for five years.3

4. Broadly speaking, the State of Florida has obtained waivers from certain federal Medicaid requirements to allow for the provision of specified HCB services to patients at risk of institutionalization. The DS Waiver program is one of the authorized HCB services waiver programs.4

5. The DS Waiver program provides a range of HCB services designed to meet the needs of people with developmental disabilities who are clients of DCF’s Developmental Services (“DS”) Program.

6. DCF’s DS Program has prepared and furnishes to authorized Medicaid providers manuals entitled Developmental Services Directory (the "DS Directory"), Support Coordination Guidebook (the “Guidebook”), Developmental Services Support Coordination Process Monitoring Instrument (the “Monitoring Instrument”), Assurances for Support Coordination Providers under the Developmental Services Home and Community-Based Services Waiver (the “Assurances”), and District 11, Developmental Disabilities Operating Procedure (the “Operating Procedure”). The DS Directory, Guidebook, Monitoring Instrument, Assurances, and Operating Procedure do not appear to have been incorporated by reference into the Florida

   Administrative Code as an AHCA or DCF rule during the audit period.

7. “Support coordination” are services that assist Medicaid eligible individuals in gaining access to needed medical, social, educational, and other services. Support Coordinators, as with all HCB services waiver providers and their billing agents must comply with the provisions of the Florida Medicaid Provider Reimbursement Handbook and the provisions of Chapter 59G-5, Florida Administrative Code.5

8. Support Coordinators are required to make legible case progress notes in sufficient detail to document the services rendered and to allow an audit of the appropriateness of the charges. Support Coordinators must date and sign all written case note entries and maintain the records for 5 years.

9. The DS Waiver Program allows HCB services to recipients who are developmentally disabled, who are clients of DCF’s DS Program, and who are eligible for institutional care and would otherwise be precluded from obtaining the services in a home or community setting.

10. All providers and billing agents are required to enroll in the Medicaid Program and submit a completed Florida Medicaid Provider Enrollment Application.

11. The DS Directory describes the DS Waiver Program. The directory specifies that service provider applicants must meet

    specific qualifications and requirements before they can be certified to provide waiver services, and that an applicant must submit a completed application packet to the District DS Program office.

12. The DS Directory further provides that if the applicant submits a completed application and is found by the district to meet the qualifications for enrollment as a waiver provider, the district issues a provisional certificate to the provider and forwards the remainder of the Medicaid Provider application to the DS Program office in Tallahassee for further processing, including mandatory background screening.

13. All DS Waiver services must be properly documented prior to requesting reimbursement. Case notes and summaries are to be signed by the Medicaid enrolled individual rendering the services in order for the bill to be paid by Medicaid.

14. The DS Directory reiterates that the Medicaid Provider Reimbursement Handbook, Non-Institutional 081, governs reimbursement and defines Support Coordination and sets forth Provider Qualifications.

15. The Guidebook sets forth the requirements and responsibilities for Support Coordinators and requires DS Support Coordinators to meet the requirements of the “Assurances for Providers of Developmental Services Home and Community-Based Services (DS/HCBS) Waiver Support Coordination Services.” Among

    the Support Coordinator responsibilities is to legibly and clearly document all support coordination activities and maintain each individual’s central record in accordance with departmental and district DS program office procedures.

    Additionally, provisions of law require documentation for all Medicaid billing, require all goods and services billed to Medicaid to be properly documented.

16. The Guidebook sets forth requirements for supervision of Support Coordinators and on-going training requirements. Prior to assuming job duties, a Support Coordinator must complete several types of required training specified in the Guidebook. The Guidebook reiterates that documentation must clearly describe the activities provided and document that services are being provided in accordance with the support plan and must be signed by the support coordinator.

17. Effie Stephan is an employee of AHCA working as an auditor in the Office of Medicaid Program Integrity (“MPI”). MPI is the bureau within AHCA charged with the investigation of Medicaid fraud and abuse, and is a federally mandated program. Ms. Stephan initiated the subject audit after receipt of a referral from the DCF. Referrals from other state agencies are common and this referral was handled in the same manner as other such referrals.

18. Ms. Stephan confirmed that the claims at issue were in fact billed to Medicaid and paid to Petitioner. The claims were billed in a manner that indicated a properly certified and enrolled Support Coordinator rendered the services, which, in fact, was not the case in most of the claims at issue here.6

19. With the exception of the claims with no documentation or with insufficient documentation, Ms. Stephan confirmed that the documentation Petitioner has maintained to support the claims at issue establishes that the services were rendered by Patricia Garcia-Montes, Jenny Espejo, Fred Jaime, Diane Gonzalez, Sylvia Espejo, Isabella Garcia, Maria Gross, Mayra Ortiz, Raul Vega, and Ivette Sotomayor.

20. The audit period is the time period from January 1, 1998, to April 30, 2000. Petitioner was an authorized Medicaid provider during the audit period, and had been issued the following Medicaid provider number: 671259296. During the audit period, Petitioner had valid Medicaid provider agreements with AHCA. During the audit period, Petitioner was subject to all of the duly enacted statutes, laws, rules, and policy guidelines that generally govern Medicaid providers, was required to follow the Medicaid Coverage and Limitation Handbooks in effect, and was required to follow all Medicaid Reimbursement Handbooks in effect.

21. During the audit period, the applicable statutes, laws, rules, and policy guidelines in effect required Petitioner to maintain all “Medicaid-related records” and information that supported any and all Medicaid invoices or claims made by Petitioner during the audit period. During the audit period, the applicable statutes, laws, rules, and policy guidelines in effect required Petitioner at AHCA’s request, to provide AHCA (or AHCA’s authorized representatives), all Medicaid-related records and other information that supported all the Medicaid- related invoices or claims that Petitioner made during the audit period.

22. The documentation that Petitioner provided to AHCA that supported the claims Petitioner made during the audit period indicate that the great majority of the 4,599 claims at issue here are for services rendered by Patricia Garcia-Montes, Jenny Espejo, Fred Jaime, Diane Gonzalez, Sylvia Espejo, Isabella Garcia, Maria Gross, Mayra Ortiz, Raul Vega, and Ivette Sotomayor. The remaining claims at issue here are claims where the Petitioner submitted no documentation or where the documentation was otherwise insufficient to show entitlement to payment from the Medicaid Program. The audit report, supported by agency work papers, shows an overpayment to the Petitioner on the subject 4,599 claims in the total amount of $603,895.68.

23. Petitioner submitted an application for Support Coordination and Medicaid enrollment for Patricia Garcia Montes to DCF. The application had been signed on January 31, 2000, and was presumably submitted sometime after that date. On April 27, 2000, DCF informed Petitioner that the aforementioned application for Ms. Montes was incomplete. A complete and accurate application, with all required attachments, for Support Coordination and Medicaid enrollment, was submitted for Patricia Garcia Montes on July 14, 2000, after the audit period. Patricia Garcia Montes became certified as a Support Coordinator on June 30, 2000, and became enrolled in the Medicaid program as a Medicaid provider on July 19, 2000, effective June 30, 2000, after the audit period.

24. Petitioner submitted an application for Support Coordination and Medicaid enrollment for Jenny Espejo to DCF. The application had been signed on November 10, 1999, and was presumably submitted sometime after that date. On both February 7, 2000, and April 27, 2000, DCF informed Petitioner that the aforementioned application for Jenny Espejo was incomplete. A complete and accurate application, with all required attachments, for Support Coordination and Medicaid enrollment, was submitted for Jenny Espejo on July 14, 2000, after the audit period. Jenny Espejo became certified as a Support Coordinator on June 30, 2000, and became enrolled in the

    Medicaid program as a Medicaid provider on July 19, 2000, effective June 30, 2000, after the audit period.

25. Petitioner submitted an application for Support Coordination and Medicaid enrollment for Fred Jaime. The application had been signed on November 15, 1999, and presumably submitted sometime after that date. On February 4, 2000, and April 27, 2000, DCF informed Petitioner that the aforementioned application for Mr. Jaime was incomplete. A complete and accurate application, with all required attachments, for Support Coordination and Medicaid enrollment, was submitted for Fred Jaime on July 14, 2000, after the audit period. Mr. Jaime became certified as a Support Coordinator on June 30, 2000, and became enrolled in the Medicaid program as a Medicaid provider on July 14, 2000, effective June 30, 2000, after the audit period.

26. Petitioner submitted an application for Support Coordination and Medicaid enrollment for Diane Gonzalez. The application had been signed on January 31, 2000, and presumably submitted sometime after that date. On April 27, 2000, DCF informed Petitioner that the aforementioned application for

    Ms. Gonzalez was incomplete. A complete and accurate application, with all required attachments, for Support Coordination and Medicaid enrollment, was submitted for Diane Gonzalez on July 14, 2000, after the audit period. Diane

    Gonzalez became certified as a Support Coordinator on June 30, 2000, and became enrolled in the Medicaid program as a Medicaid Provider on July 19, 2000, effective June 30, 2000, after the audit period.

27. Petitioner submitted an application for Support Coordination and Medicaid enrollment for Sylvia Espejo. The application had been signed on November 10, 1999, and again on May 22, 2000. On February 7, 2000, and April 26, 2000, DCF informed Petitioner that the aforementioned application for Sylvia Espejo was incomplete. A complete and accurate application, with all required attachments, for Support Coordination and Medicaid enrollment, was submitted for Sylvia Espejo on July 14, 2000, after the audit period. Sylvia Espejo became certified as a Support Coordinator on June 30, 2000, and became enrolled in the Medicaid program as a Medicaid provider on June 30, 2000, after the audit period.

28. Petitioner submitted an application for Support Coordination and Medicaid enrollment for Isabel Garcia. The application had been signed on May 15, 2000, and presumably submitted sometime after that date. A complete and accurate application, with all required attachments, for Support Coordination and Medicaid enrollment, was submitted for Isabel Garcia on July 28, 2000, after the audit period. Isabel Garcia became certified as a Support Coordinator on June 30, 2000, and

    became enrolled in the Medicaid program as a Medicaid provider on August 2, 2000, effective June 30, 2000, after the audit period.

29. Petitioner submitted an application for Support Coordination and Medicaid enrollment for Maria Gross. The application had been signed on June 14, 2000, and presumably submitted sometime after that date. A complete and accurate application, with all required attachments, for Support Coordination and Medicaid enrollment, was submitted for Maria Gross on July 28, 2000, after the audit period. Maria Gross became certified as a Support Coordinator on June 30, 2000, and became enrolled in the Medicaid program as a Medicaid provider on August 4, 2000, effective June 30, 2000, after the audit period.

30. Petitioner submitted an application for Support Coordination and Medicaid enrollment for Mayra Ortiz. The application was signed on March 20, 1998, and again on both June 14th and 15th, 2000. Mayra Ortiz became certified as a

    Support Coordinator on June 30, 2000, and became enrolled in the Medicaid program as a Medicaid provider on January 9, 2001, effective June 30, 2000, after the audit period.

31. Petitioner submitted an application for Support Coordination and Medicaid enrollment for Raul Vega. The application was denied and to date Raul Vega has not been

    certified as a Support Coordinator or enrolled as a Medicaid provider.

32. Petitioner submitted an application for Support Coordination and Medicaid enrollment for Ivette Sotomayor. The application was signed on August 17, 1998, and again on July 3, 2001. A complete and accurate application, with all required attachments, for Support Coordination and Medicaid enrollment, was submitted for Ivette Sotomayor on September 18, 2001, after the audit period. Ivette Sotomayor became certified as a Support Coordinator on September 18, 2001, and became enrolled in the Medicaid program as a Medicaid provider on September 28, 2001, effective September 18, 2001, after the audit period.

33. None of the individuals listed in paragraphs 19 and 22, above, were enrolled as Medicaid providers at any time during the audit period at issue here.

    CONCLUSIONS OF LAW

    
    

34. Pursuant to Sections 120.569 and 120.57(1), Florida Statutes, the Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding.

35. The AHCA bears the burden of establishing a Medicaid overpayment by a preponderance of the evidence. South Medical

    Services, Inc. v. Agency for Health Care Administration, 653 So. 2d 440, 441 (Fla. 3d DCA 1995); Southpointe Pharmacy v.

    Department of Health and Rehabilitative Services, 596 So. 2d 106, 109 (Fla. 1st DCA 1992). The AHCA must present sufficient evidence to make out a prima facie case before the provider is required to respond. In cases of this nature the Legislature has to some extent lightened the agency's burden by specifying what evidence is sufficient to make out a prima facie case.

    Section 409.913(21), Florida Statutes, provides that "[t]he audit report, supported by agency work papers, showing an overpayment to a provider constitutes evidence of the overpayment." Thus, the AHCA can make a prima facie case by a properly supported audit report. See Maz Pharmaceuticals, Inc. vs. AHCA for Health Care Administration, DOAH Case No. 97-3791, 1998 WL 870139, (Recommended Order issued March 20, 1998), which includes the following in the conclusions of law:

    1. Petitioner argues that the Agency has primarily relied upon hearsay evidence and that the Agency, therefore, has failed to meet its burden of proof by presenting sufficient evidence upon which findings of fact can be made. Section 120.57(1)(c), Florida Statutes. Petitioner is correct in that the Agency's evidence is replete with hearsay and was based primarily on other hearsay. Indeed, the Agency did not attempt to qualify any of its exhibits as an exception to the hearsay rule.

       
       

    2. However, Section 409.913(21), Florida Statutes, provides, in part, that: "The audit report, supported by agency work papers, showing an overpayment to a provider constitutes evidence of the overpayment." Petitioner argues that this provision means

       the documents relied on for all of the agency's testimony may be admitted in evidence but then must be ignored. Such a construction would render meaningless the language contained in Section 409.913(21) and would be contrary to the normal rules of statutory construction. Since the Legislature determined that the audit report and work papers constitute evidence which must be considered, the Agency presented a prima facie case, which Petitioner chose not to rebut. The agency has, accordingly, proven the overpayment.

       
       

36. The conclusion quoted immediately above must also be reached here. The evidence submitted by the agency, with the benefit of the provisions of Section 409.913(21), Florida Statutes, is sufficient to present a prima facie case. The Petitioner chose not to rebut it. The agency has, therefore, proven the overpayment.

37. In sum: During the audit period, ten persons employed by Petitioner rendered support coordination services to Medicaid recipients without having been enrolled as Medicaid providers. Such enrollment is a mandatory prerequisite to eligibility to receive payment from the Medicaid program for services provided to Medicaid recipients. The services provided by these ten individuals were not rendered in accordance with all Medicaid regulations, rules, and policies. The amounts paid for the Medicaid services performed by unauthorized individuals are subject to recoupment. Similarly, amounts paid for Medicaid

services that are not supported by Provider documentation are subject to recoupment.

RECOMMENDATION

On the basis of all of the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a Final Order be issued in this case concluding that the Petitioner, Choices in Support and Services, Inc., has been overpaid for services to Medicaid recipients, which services were rendered in violation of Medicaid rules, regulations, and policies; concluding that the extent of the overpayment is $603,895.68; and, finally, concluding that the Petitioner is obligated to repay the sum of

$603,895.68 to the Agency for Health Care Administration for reimbursement of the Medicaid Program.

DONE AND ENTERED this 13th day of March, 2003, in Tallahassee, Leon County, Florida.

MICHAEL M. 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 13th day of March, 2003.

ENDNOTES

1/ After the final hearing, but before the date on which the parties' proposed recommended orders were due to be filed, legal counsel for the Petitioner were granted leave to withdraw as counsel.

2/ The deadline established for the filing of the parties' proposed recommended orders was February 28, 2003.

3/ See Rules 59G-8.200 and 59G-5.010, Florida Administrative Code, and Section 409.913, Florida Statutes.

4/ See Rules 59G-8.200(1) and 59G-8.200(9), Florida Administrative Code.

5/ See Rule 59G-8.200, Florida Administrative Code.

6/ With regard to a few of the claims at issue here, there was no documentation at all to support the claim, or the documentation was insufficient to show entitlement to payment from the Medicaid Program.

COPIES FURNISHED:

Kelly Bennett, Esquire

L. William Porter, II, Esquire

Agency for Health Care Administration 2727 Mahan Drive, Suite 3431

Tallahassee, Florida 32308-5403

Teresita Preston

Choices in Support and Services, Inc. Killian Professional Village

10717 Southwest 104th Street Miami, Florida 33176

Leland McCharen, Agency Clerk

Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3

Tallahassee, Florida 32308

Valda Clark Christian, General Counsel Agency for Health Care Administration 2727 Mahan Drive, Suite 3431

Fort Knox Executive Center III Tallahassee, Florida 32308

Rhonda M. Medows, M.D., Secretary Agency for Health Care Administration 2727 Mahan Drive, Suite 3116

Fort Knox Executive Center III 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: 01-001977MPI

Orders for Case No: 01-001977MPI