STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

STATE OF FLORIDA, AGENCY FOR HEALTH CARE ADMINISTRATION,

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AHCA

AGENCY CLERK

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Petitioner,

vs.

MERCY PROFESSIONAL PHARMACY,

CASE NO. 08-6381MPI Audit No.: CI 09-8061-000

Provider No.: 103854100

RENDITION NO.: AHCA-09- 5 i2 -5-MDO

Respondent.

I

FINAL ORDER

THE PARTIES resolved all disputed issues and executed a Settlement Agreement. The parties are directed to comply with the terms of the attached settlement agreement. Based on the

foregoing, this file is CLOSED.

DONE and ORDERED on this the£ day of 1=4f=-----·' 2009, m

Tallahassee, Florida.

r Agency for Health Care Administration

1

Filed July 7, 2009 1:19 PM Division of Administrative Hearings.

A PARTY WHO IS ADVERSELY AFFECTED BY THIS FINAL ORDER IS ENTITLED TO A JUDICIAL REVIEW WHICH SHALL BE INSTITUTED BY FILING ONE COPY OF A NOTICE OF APPEAL WITH THE AGENCY CLERK OF AHCA, AND A SECOND COPY ALONG WITH FILING FEE AS PRESCRIBED BY LAW, WITH THE DISTRICT COURT OF APPEAL IN THE APPELLATE DISTRICT WHERE THE AGENCY MAINTAINS ITS HEADQUARTERS OR WHERE A PARTY RESIDES. REVIEW PROCEEDINGS SHALL BE CONDUCTED IN ACCORDANCE WITH THE FLORIDA APPELLATE RULES. THE NOTICE OF APPEAL MUST BE FILED WITHIN 30 DAYS OF RENDITION OF THE ORDER TO BE REVIEWED.

Copies furnished to:

L. William Porter II, Esquire Agency for Health Care Administration

(Laserfiche)

Lewis W. Fishman, Esquire

2 Datran Center

9130 S. Dadeland Boulevard, Suite 1121

Miami, Florida 33156-7848 (U.S. Mail)

June C. McKinney Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

Ken Yon, Bureau Chief, Medicaid Program Integrity Diana Coumbe, Medicaid Program Integrity

Finance and Accounting

2

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished to

Richard Shoop, Esquire Agency Clerk

State of Florida

Agency for Health Care Administration 2727 Mahan Drive, Building #3

Tallahassee, Florida 32308-5403

(850) 922-5873

3

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

AGENCY FOR HEALTH CARE ADMINISTRATION,

Petitioner,

vs. Case No. 08-6381MPI

MERCY PROFESSION.1 .L PHARMACY,

Respondent.

/

SETTLEMENT AGREEMENT

STATE OF FLORIDA, AGENCY FOR HEALTH CARE ADMINISTRATION

("AHCA" or ''the Agency"), and Mercy Professional Pharmacy ("PROVIDER"), by and through the undersigned, hereby stipulate and agree as follows:

1. The two parties enter into this agreement to memorialize the resolution to this

   
   

   matter.

   
   

2. PROVIDER is a Florida Medicaid provider, provider number 103854100 and was a provider during the audit period, January 1, 2005 to December 31, 2005.

3. In its Final Agency Audit Report (constituting final agency action) dated November 17, 2008, AHCA notified PROVIDER that review of Medicaid claims by Medicaid Program Integrity (MPI), Office of the AHCA Inspector General, indicated. certain claims, in whole or in part, had been inappropriately paid. The Agency sought recoupment of this overpayment in the amount of $37,574.54. In response, PROVIDER filed a petition for formal administrative hearing. It was assigned DOAH Case No. 08-6381MPI.

   
   

   Mercy Professional Pharmacy

   Settlement Agreement

   
   

4. In order to resolve this matter without further administrative proceedings, PROVIDER and the AHCA agree as follows:

   1. AHCA agrees to accept the payment set forth herein in settlement of the overpayment issues arising from the captioned audit.

   2. Within thirty days of entry of the final order, PROVIDER agrees to make a lump sum payment of thirty seven thousand five hundred seventy four dollars and fifty-four cents ($37,574.54) in overpayment plus five thousand dollars ($5,000) in fines for a total of forty two thousand five hundred seventy four dollars and fifty-four cents ($42,574.54). This fully and completely settles all claims in these proceedings before the Division of Administrative Hearings (DOAH Case No. 08-6381MPI).

   3. PROVIDER and AHCA agree that full payment, as set forth above, resolves and settles this case completely. It will release both parties from any administrative or civil liabilities or claims arising from the findings in audit C.I. 09-8061-000.

   4. PROVIDER agrees that it will not rebilJ the Medicaid Program in any manner for claims that were determined not covered by Medicaid, which · are the subject of the audit in this case.

5. Payment shall be made to:

   
   

   AGENCY FOR HEALTHCARE ADMINISTRATION

   Medicaid Accounts Receivable Post Office Box 13749 Tallahassee, Florida 32317-3749

   
   

   2

   ---------------------------------------1---

   Mercy Professional Pharmacy Settlement Agreement

6. PROVIDER agrees that failure to pay any monies due and owing under the terms of this Agreement shall constitute PROVIDER'S authorization for the Agency, without further notice, to withhold the total remaining amount due under the tenns of this agreement from any monies due and owing to PROVIDER for any Medicaid claims.

7. AHCA reserves the right to enforce this Agreement under the laws of the State of Florida, the Rules of the Medicaid Program, and all other applicable rules and regulations.

8. PROVIDER acknowledges their obligation to adhere to state and federal Medicaid laws, rules, provisions, handbooks and policies.

9. This settlement does not constitute an admission of wrongdoing or error by either

   
   

   party with respect to this case or any other matter.

   
   

10. Each party shall bear its own attorneys' fees and costs, if any.

I1. The signatories to this Agreement, acting in a representative capacity, represent that they are duly authorized to enter into this Agreement on behalf of the respective parties.

1. This Agreement shall be construed in accordance with the provisions of the laws of Florida. Venue for any action arising from this Agreement shall be in Circuit Court, Leon County, Florida.

2. This Agreement constitutes the entire agreement between PROVIDER and AHCA, including anyone acting for, associated with or employed by them, concerning all matters and supersedes any prior discussions, agreements or · understandings; there are no promises, representations or agreements between PROVIDER and the AHCA other than as set forth herein. No modification or waiver of any provision shall be valid unless a written amendment to the Agreement is completed and properly executed by the parties.

   
   

   3

   
   

   Mercy Professional Pharmacy Settlement Agreement

   
   

3. This is an Agreement of settlement and compromise, made in recognition that the

   
   

   . parties may have different or incorrect understandings, information and contentions, as to facts and law, and with each party compromising and settling any potential correctness or incorrectness of its understandings, information and contentions as to facts and law, so that no misunderstanding or misinformation shall be a ground for rescission hereof.

4. PROVIDER expressly waives in this matter its right to any hearing pursuant to sections 120.569 or 120.57, Florida Statutes, the making of findings of fact and conclusions of law by the Agency, and all further and other proceedings to which it may be entitled by law or rules of the Agency regarding this proceeding and any and all issues raised herein. PROVIDER further agrees that it shall not challenge or contest any Final Order entered in this matter which is consistent with the terms of this settlement agreement in any forum now or in the future available to it, including the right to any administrative proceeding, circuit or federal court action or any appeal.

5. This Agreement is and shall be deemed jointly drafted and written by all parties to it and shall not be construed or interpreted against the party originating or preparing it.

6. To the extent that any provision of this Agreement is prohibited by law for any reason, such provision shall be effective to the extent not so prohibited, and such prohibition shall not affect any other provision of this Agreement.

7. This Agreement shall inure to the benefit of and be binding on each party's successors, assigns, heirs, administrators, representatives and trustees.

8. · All times stated herein are of the essence of this Agreement. ·

   
   

9. This Agreement shall be in full force and effect upon execution by the respective parties in counterpart.

4

Mercy Professional Pharmacy Settlement Agreement

MERCY PROFESSIONAL PHARMACY

Dated: _H._a.._.; •2009

I

BY: _L_e_LIA_s_LJ

(Print name)

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ITS:

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AGENCY FOR HEALTH CARE

ADMINISTRATION

2727 Mahan Drive, Mail Stop #3

Pmertl

Tallahassee, FL 32308-5403

Inspector General

Dated:

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, 2009

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Geneml Counsel .

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_,, 2009

L.•

Assistant General Counsel

Dated: -"hf--""---..;._/'-/--•2009

5

ICA

Fl.ORJOAAGcNCV FOR HEAHH CARE ADMINISTRMION

CHARLIE CRIST GOVERNOR

CERTIFIED MAIL - RETURN RECEIPT No. 700-t 2510 0001 4-U3 8050

November 17, 2008

ProviderNo.: 103854100 License No.: PH6824

Isabel Vasquez, Pharmacy Manager Mercy Professional Pharmacy

3661 S. Miami Avenue, Suite 110

Miami, FL 33133

In Reply Refer to

FINAL AUDIT REPORT

C.I. No. 09-8061-000/P/DSC

Dear Ms. Vasquez:

The Agency for Health Care Administration (Agency). Ol'ficc of Inspector General, Bureau of

!Vledicaid Program Integrity, has completed a rcviev,: of claims for Medicaid reimbursement for dates of service during the period January 1, 2005 through December 31, 2005. A preliminary audit report dated October 1, 2008 was sent to you indicating that we had determined you were oYerpaid $15 I ,217.38. Based upon a review of all documentation submitted. we have determined that you were overpaid $37,574.54 for services that in whole or in part are not covered by Medicaid. A fine of $5,000.00 has been applied. The total amount due is

$42,574.54.

Be advised of the following:

1. Pursuant to Section 409.913(23) (a), Florida Statutes (F.S.), the Agency is entitled to recover all investigative, legal. and expert ,vitness costs.

   
   

2. In accordance with Sections 409.913(15), (16), and (17), F.S., and Rule 590-9.070, Florida Administrative Code (F.A.C.), the Agency shall apply sanctions for violations of federal and state laws, including Medicaid policy. This letter shall serve as notice of the following sanction(s):

   
   

   •

   • A fine of $5,000.00 for violation(s) of Rule Section 59G-9.070(7)(n), F.A.C., for failure to demonstrate a sufficient quantity of goods available to support billings made to Medicaid

   
   

   2727 Mahan Drive, MS# 6

   Tallahassee, Florida 32308

   Visit AHCA online at http://ahca.myflorida.com

   
   

   . Me'rc:;r Professional Pharmacv Page 2 of 4

   
   

   This review and the determination of overpayment were made in accordance \Vith the provisions of Section 409.913, F.S. In determining the appropriateness of Medicaid payment pursuant to Medicaid policy, the Medicaid program utilizes procedure codes, descriptions, policies, limitations and requirements found in the Medicaid provider handbooks and Section 409.913,

   F.S. In applying for Medicaid reimbursement, providers are required to follo,v the guidelines set forth in the applicable rules and Medicaid fee schedules, as promulgated in the Medicaid policy handbooks, billing bulletins, and the Medicaid provider agreement. Medicaid cannot pay for services that do not meet these guidelines.

   
   

   Below is a discussion of the particular guidelines related to the review of your claims, and an explanation of why these claims do not meet Medicaid requirements. The audit work papers are enclosed, listing the claims that are affected by this determination.

   
   

   REVIEW DETERMINATION(S)

   
   

   The audit included a comparison of your lawful documented product acquisitions with your paid Medicaid claims. Only product acquisitions from Florida licensed wholesalers were included in the audit. The audit period for this review was from January 1, 2005 through December 31, 2005. The drug quantity paid for by Medicaid for the drugs reviewed exceeded the quantity available to dispense to Medicaid recipients. This review identified an overpayment of

   $37,574.54. Enclosed for this review are the overpayment calculations which include the summary sheet(s), the paid claims data, and acquisition data.

   
   

   If you are currently involved in a bankruptcy, you should notify your attorney immediately and pro\'ide a copy of this letter for them. Please advise your attorney that we need the following information immediately: ( 1) the date of filing of the bankruptcy petition; (2) the case number;

3. the court name and the division in which the petition was filed (e.g., Northern District of Florida, Tallahassee Division); and, (4) the name, address, and tf'lcphone number of your attorney.

If you are not in bankruptcy and you concur with our findings, remit by c.ertified check in the amount of $42,574.54 which includes the overpayment amount as well as any fines imposed. The check must be payable to the Florida Agency for Health Care Administration. Questions regarding procedures for submitting payment should be directed to Medicaid Accounts Receivable, (850) 488-5869. To ensure proper credit, be certain you legibly record on your check your Medicaid provider number and the C.I. number listed on the first page of this audit report. Please mail payment to:

Agency for Health Care Administration

Medicaid Accounts Receivable

P.O. Box 13749

Tallahassee, Florida 32317-3749

• Mercy Professional Pharmacy

. _Page, of 4

If payment is not received, or arranged for, within thirty (30) days of receipt of this letter, the Agency may withhold Medicaid payments in accordance with the provisions of Section 409.913(27), F.S. Furthermore, pursuant to Sections 409.913(25) and 409.913(15), F.S., failure to pay in full, or enter into and abide by the terms of any repayment schedule set forth by the Agency may result in termination from the Medicaid Program. Likewise, failure to comply with all sanctions applied or due dates may result in additional sanctions being imposed.

You have the right to request a fom1al or informal hearing pursuant to Section 120.569, F.S. If a request for a formal hearing is made, the petition must be made in compliance with Section 28-

106.20 I, F.A.C. and mediation may be available. If a request for an infonnal hearing is made, the petition must be made in compliance with rule Section 28-106.301, F.A.C. Additionally, you are hereby informed that if a request for a hearing is made, the petition must be received by the Agency within twenty-one (21) days of receipt of this letter. For more information regarding your hearing and mediation rights, please see the attached Notice of Administrative Hearing and Mediation Rights.

Any questions you may have about this matter should be directed to: Diana Coumbe, Senior Pharmacist, Agency for Health Care Administration, Office of Inspector General, Medicaid Program Integrity, 2727 Mahan Drive, Mail Stop #6, Tallahassee, Florida 32308-5403, telephone (850) 921-1802, facsimile (850) 410-1972.

Sincerely,

Ramona D. Stewart, RPh AHCA Administrator Office of Inspector General Medicaid Program Integrity

RDS/ DSC

Enclosure(s)

cc: Medicaid Accounts Receivable Diana Coumbe

Lewis W. Fishman, Attorney and Counselors At Law, Two Datran Center, Suite 1121, 9130 South Dadeland Boulevard, Miami, FL 33156

Provider Name: Mercy Professional Pharmacy Provider Number: 103854100

Review Period: 1/1/05-12/31/05

Invoice Analysis Results*

TOTAL $ 37,574.54

Does not include any 340B purchases or 340B DUR Includes Purchases/Claims from December, 2004

B,C data from Florida Medicaid Information System D,F data from provider

E=D/C G=F-C

l=B/C J=IH

• Mercy Professional Pharmar.v Page,4 of 4

NOTICE OF ADMINISTRATIVE HEARING AND MEDIATION RIGHTS

You have the right to request an administrative hearing pursuant to Sections 120.569 and 120.57, Florida Statutes. If you disagree with the facts stated in the foregoing Final Audit Report (hereinafter FAR), you may request a formal administrative hearing pursuant to Section 120.57( I), Florida Statutes. If you do not dispute the facts stated in the FAR, but believe there arc additional reasons to grant the relief you seek, you may request an informal administrative hearing pursuant to Section I 20.57(2), Florida Statutes. Additionally, pursuant to Section 120.573, Florida Statutes, mediation may be available if you have chosen a formal administrative hearing, as discussed more fully below.

The written request for an administrative hearing must confom1 to the requirements of either Rule 28-106.201 (2) or Rule 28-106.301 (2), Florida Administrative Code, and must be received by the Case Management Manager by 5:00 P.M. no later than 21 days after you received the FAR. The address for filing the written request for an administrative hearing is:

Case Management Manager Office of Inspector General Medicaid Program Integrity

Agency for Health.Care Administration 2727 Mahan Drive, Mail Stop #6

Tallahassee, Florida 32308 - 5403

The request must be legible, on 8 ½ by I I-inch white paper, and contain:

1. Your name, address, telephone number, any Agency identifying number on the FAR, if

krnrnn, and name. nddress, and telephone number of your representative, if any;

An explanation of how your substantial interests will be affected by the action described in the FAR;

1. A statement of when and hovv you received the FAR;

2. for a request for formal hearing, a statement of all disputed issues of material fact;

3. For a request for formal hearing. a concise statement of the ultimate facts alleged, as well as the rules and statutes which entitle vou to relief;

4. 1·"r ! request for fomial hearing, \Vhether you request mediation, if it is available;

5. For a request for informal hearing. what bases support.an adjustment to the amount owed to the Agency: and

6. A demand for relief.

A formal hearing will be held if there are disputed issues of material fact. Additionally, mediation may be available in conjunction with a formal hearing. :rviediation is a way to use a neutral third party to assist the parties in a legal or administratiYe proceeding to reach a settlement of their case. If you and the Agency agree to mediation, it does not mean that you give up the right to a hearing. Rather, you and the Agency will try to settle your case first with mediation.

If you request mediation, and the Agency agrees to it, you will be contacted by the Agency to set up a time for the mediation and to enter into a mediation agreement. If a mediation agreement is not reached within 10 days following the request for mediation, the matter will proceed without mediation. The mediation must be concluded within 60 days of having entered into the agreement, unless you and the Agency agree to a different time period. The mediation agreement between you and the Agency will include provisions for selecting the mediator, the allocation of costs and fees associated with the. mediation, and the confidentiality of discussions and documents involved in the mediation. Mediators charge hourly fees that must be shared equally by you and the Agency.

If a written request for an administrative hearing is not timely received you will have waived your right to have the intended action reviewed pursuant to Chapter 120, Florida Statutes, and the action set forth in the FAR shall be conclusive and final.

Docket for Case No: 08-006381MPI

Orders for Case No: 08-006381MPI