STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

AGENCY FOR HEALTH CARE ADMINISTRATION,

Petitioner,

vs.

AMWIL ASSISTED LIVING, INC.,

Respondent.

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) Case No. 12-1217MPI

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RECOMMENDED ORDER

A hearing was conducted in this case pursuant to sections

120.569 and 120.57(1), Florida Statutes1 before Administrative Law Judge Jessica Varn of the Division of Administrative Hearings (DOAH). The hearing was held on June 25, 2012, by video teleconference at sites in Orlando and Tallahassee, Florida.

APPEARANCES

For Petitioner: Shena L. Grantham, Esquire

Agency for Health Care Administration Mail Stop 3

2727 Mahan Drive

Tallahassee, Florida 32308

For Respondent: William R. Robinson, Esquire

Robinson Law Firm, P.A. 816 West Smith Street Orlando, Florida 32804

STATEMENT OF THE ISSUE

Whether Respondent violated section 409.913, Florida Statutes, by failing to comply with certain Medicaid record

keeping requirements, thereby incurring an $11,000 fine according to Florida Administrative Code Rule 59G-9.070.

PRELIMINARY STATEMENT

By letter dated March 5, 2012, the Agency for Health Care Administration (AHCA) advised Respondent of its intent to apply sanctions for violations of federal and state laws, including the failure to retain proper service plan records in the files of nine Medicaid recipients; the failure to retain documentation of a current Level II background screening for one employee; and the failure to retain documentation of the Communicable Disease Status for one employee. Each of the 11 violations resulted in a total sanction amount of $11,000.

Respondent timely requested a hearing on the Agency's imposition of the sanction. The matter was referred to DOAH for the assignment of an administrative law judge to conduct a formal hearing and to submit a recommended order to the Agency.

Pursuant to notice, the final hearing in this case was conducted on June 25, 2012. At the hearing, the Agency presented the testimony of Horace Dozier, an AHCA Administrator; and Magdalena Olsson, an AHCA Investigator. Agency's Exhibits 1-6 were offered and received into evidence. Agency Exhibits 7-10 were officially recognized without objection. Respondent presented the testimony of Antoinetta Llanes, owner of Amwil

Assisted Living, Inc. (Amwil); Respondent's Composite Exhibit A was offered and admitted into evidence.

The one-volume Transcript of the proceedings was filed with DOAH on July 30, 2012. The parties agreed to a short extension of time in which to file Proposed Recommended Orders. On August 14, 2012, both parties timely filed Proposed Recommended Orders, which have been considered in the preparation of this Recommended Order.

FINDINGS OF FACT

1. Amwil is an assisted living facility that provides assistive care services, and was enrolled as a provider in the Florida Medicaid program at all times pertinent to the instant case. Amwil's provider number is 142583800.

2. AHCA is the state agency charged with the administration of the Medicaid program in Florida. Within AHCA is the Bureau of Medicaid Program Integrity (MPI), whose duty is to ensure the integrity of the Medicaid program by conducting audits of claims and by investigating providers to ensure compliance with all requirements of the Medicaid program.

3. At all relevant times, Amwil has been subject to a Medicaid Provider Agreement. Pursuant to the agreement, Amwil agreed to comply with all federal, state, and local laws, including rules, regulations, and statements of policy applicable

   
   

   to the Medicaid program. Amwil also agreed to comply with AHCA's Medicaid handbooks.

4. The Medicaid Provider Agreement includes the requirement that providers keep, maintain, and make available in a systemic and orderly manner all medical and Medicaid-related records as AHCA requires.

5. A compliance site visit was conducted by AHCA at Amwil's facility on December 5, 2011. Ms. Magdalena Olsson, an AHCA Investigator, was a member of the team performing the site inspection.

6. The three-member team requested records from January 2011 to October 2011. On the day of the site visit, the team noticed that there were some service authorizations missing from the files, and there were some problems with background screenings and communicable disease statements. The team made no formal findings; instead, the team issued a demand letter, requesting specific documentation for the audit time period to be forwarded to AHCA within 15 days.

7. Amwil verbally requested an extension of the deadline for submitting the requested documentation, which Ms. Olsson agreed to. The parties agreed that Amwil would have until December 30, 2011, to produce the records.

8. Antoinetta Llanes, the owner of Amwil, and Gail Peters, an Amwil employee, gathered all the records requested by AHCA.

   
   

   Ms. Peters also signed and submitted a Certificate of Completeness of Records, certifying that "these are all of the Medicaid-related records requested by the Agency for Health Care Administration, Office of the Inspector General, Bureau of Medicaid Program Integrity." The records and Certificate were submitted timely.

9. Investigator Olsson performed a desk review of the documentation provided, to ensure compliance with the documentation requirements contained within applicable Medicaid statutes, rules, and provider handbooks.

10. A review of the recipient files revealed that service plans were missing in nine files. Service plans are required for each recipient, and they must be signed or provided within 15 days of the annual assessment, or within 15 days of an assessment that causes a significant change in the recipient's condition.

11. The documentation provided on December 30, 2011, also did not contain a Level II Background Screening for one Amwil employee, M.E., which must be conducted every five years.

12. The documentation provided on December 30, 2012, also did not contain a statement of freedom from communicable disease for R.C., an Amwil employee. The statements are required for all employees, and must be dated within 30 days of the date of hire.

13. On March 21, 2012, after the sanction letter was sent to Amwil by AHCA, Amwil submitted more documentation, which

    
    

    included service plans for the nine recipients. The service plans, however, were not dated within 15 days of the health assessments.

14. Also included in the March 2012 submission was a Level II background screening for Amwil employee M.E., which was conducted in 2011. M.E. had been hired in 2004, and there was no documentation of a Level II screening having been conducted in 2004.

15. Lastly, the March 2012 submission included a statement of freedom from communicable disease for Amwil employee R.C., dated May 22, 2011. This statement did not comply with the requirement that the statement be completed within 30 days of hire, because R.C. had been hired in 2005.

16. The Agency properly imposed sanctions for each of the eleven violations of Medicaid policy; that is: nine recipient files that did not contain service plans, one employee file that did not contain a Level II background screening and therefore was not maintained properly for inspection, and one employee file that did not contain a statement of freedom from communicable diseases dated within 30 days of hire.

17. There is no evidence establishing that Amwil has been previously charged with, or been determined to have committed, any violation of Medicaid law.

    
    

    CONCLUSIONS OF LAW

    
    

18. DOAH has jurisdiction over the parties and subject matter of this proceeding, pursuant to section 120.57(1), Florida Statutes.

19. AHCA seeks to sanction Amwil by imposing administrative fines for alleged violations of Medicaid laws. Accordingly, AHCA must prove the allegations by clear and convincing evidence. Dep't of Banking & Fin., Div. of Secs. & Investor Prot. v. Osborne Stern, Inc., 670 So. 2d 932, 935 (Fla. 1996); Ferris v.

    Turlington, 510 So. 2d 292, 294 (Fla. 1987).

    
    

20. Regarding the standard of proof, in Slomowitz v.

    
    

    Walker, 429 So. 2d 797, 800 (Fla. 4th DCA 1983), the court held that:

    clear and convincing evidence requires that the evidence must be found to be credible; the facts to which the witnesses testify must be distinctly remembered; the testimony must be precise and explicit and the witnesses must be lacking confusion as to the facts in issue. The evidence must be of such weight that it produces in the mind of the trier of fact a firm belief or conviction, without hesitancy, as to the truth of the allegations sought to be established.

    
    

    Id. The Florida Supreme Court later adopted the Slomowitz

    
    

    court's description of clear and convincing evidence. See In re Davey, 645 So. 2d 398, 404 (Fla. 1994). The First District Court of Appeal also has followed the Slomowitz test, adding that "[a]lthough this standard of proof may be met where the evidence

    
    

    is in conflict, . . . it seems to preclude evidence that is ambiguous." Westinghouse Elec. Corp. v. Shuler Bros., Inc., 590 So. 2d 986, 988 (Fla. 1st DCA 1991), rev. denied, 599 So. 2d 1279 (Fla. 1992)(citation omitted).

21. Section 409.913(9) requires Medicaid providers to retain medical, professional, financial, and business records pertaining to services and goods furnished to a Medicaid recipient and billed to Medicaid. The provider is responsible for furnishing to the Agency, and keeping the Agency informed of the location of, the Medicaid-related records. Florida Administrative Code Rule 59G-9.070(7)(e) provides that the Agency may sanction a provider with a $1,000 fine per claim found to be in violation of the Medicaid rules, if it is a first offense.

22. Section 409.913(15) provides in pertinent part:

    
    

    * * *

    
    

    The agency shall seek a remedy provided by law, including, but not limited to, any remedy provided in subsections (13) and (16) and s. 812.035, if:

    
    

    1. 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;

       
       

    2. The provider has failed to maintain medical records made at the time of service, or prior to service if prior authorization is required, demonstrating the necessity and

       
       

       appropriateness of the goods or services rendered;

       
       

23. The Provider General Handbook, at 2-55, also requires that providers retain all business records as defined in Florida Administrative Code Rule 59G-1.010(30). This rule, in turn, defines such business records as including patient activity records, as well as personnel records.

24. Additionally, the Provider Agreement, in section (5), requires that the Medicaid provider shall keep, maintain, and make available in a systematic and orderly manner all medical and Medicaid-related records required by AHCA for a period of at least five years.

25. As to Medicaid's requirement of service plans, the Handbook provides, at 2-9, that service plans must be completed within 15 days after the initial health assessment or annual assessment. The service plan must be in writing, and must be based upon information contained in the health assessment.

26. Section 408.809 requires that a Level II background screening be conducted every five years on each employee who provides personal care services to clients such as those living in assisted living facilities.

27. Rule 58A-5.019 requires that assisted living facilities have newly hired staff submit a statement within 30 days of hire,

    
    

    signed by a health care provider, stating that the person is free of any signs or symptoms of a communicable disease.

28. Here, the evidence establishes that on the date of AHCA's inspection, Amwil's files did not contain documentation of one employee's Level II Background Screening, and of another employee's communicable disease statement. In addition, nine recipient files did not contain the required service plans.

29. After the compliance review had been completed, and a sanction letter had been issued to Amwil, Amwil provided more records to AHCA. Contained in these records were service plans for all nine recipients, but none of those service plans had been completed within 15 days of the health assessments, as required by Medicaid. As to the personnel records, Amwil also provided documentation of M.E.'s Level II background screening, and a communicable disease statement for R.C., but neither had been conducted timely, as required by relevant statutes and rules.

30. The evidence establishes that the violations that are the subject of this proceeding are Respondent's first violations of Florida's Medicaid laws. Florida Administrative Code Rule 59G-9.070(7)(e) imposes a $1,000 fine per violation for a first offense. Here, AHCA established, by clear and convincing evidence, that Amwil committed 11 violations, each subject to a

$1,000 fine.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that pursuant to Florida Administrative Code Rule 59G-9.070(7)(e), Respondent should be fined a total of

$11,000 for 11 violations of Florida's Medicaid laws.

DONE AND ENTERED this 14th day of September, 2012, in Tallahassee, Leon County, Florida.

S

JESSICA E. VARN

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 14th day of September, 2012.

ENDNOTE

1/ Unless otherwise noted, all references in this Recommended Order to Florida Statutes are to the 2011 codification.

COPIES FURNISHED:

Shena L. Grantham, Esquire

Agency for Health Care Administration Mail Stop 3

2727 Mahan Drive

Tallahassee, Florida 32308 shena.grantham@ahca.myflorida.com

William R. Robinson, Esquire Robinson Law Firm, P.A.

816 West Smith Street Orlando, Florida 32804 bill.robinson@amicuslegis.com

Richard J. Shoop, Agency Clerk

Agency for Health Care Administration Mail Stop 3

2727 Mahan Drive

Tallahassee, Florida 32308

Elizabeth Dudek, Secretary

Agency for Health Care Administration Mail Stop 1

2727 Mahan Drive

Tallahassee, Florida 32308

Stuart Williams, General Counsel Agency for Health Care Administration Mail Stop 3

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: 12-001217MPI

Orders for Case No: 12-001217MPI