STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

AGENCY FOR HEALTH CARE ADMINISTRATION,

Petitioner,

vs.

ALLCARE HEALTH AND HUMAN SERVICES, INC.,

Respondent.

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) Case No. 12-2594MPI

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RECOMMENDED ORDER

Pursuant to notice, a hearing was conducted in this case on October 18, 2012, by video teleconference between Port St. Lucie and Tallahassee, Florida, before Administrative Law Judge (ALJ) Claude B. Arrington of the Division of Administrative Hearings

(DOAH).

APPEARANCES

For Petitioner: William M. Blocker, Esquire

Assistant General Counsel

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

Tallahassee, Florida 32308-5403

For Respondent: J. Blayne Jennings, Esquire

Post Office Box 781599 Sebastian, Florida 32978-1599

STATEMENT OF THE ISSUE

Whether Allcare Health and Human Services, Inc. (Respondent), a Medicaid provider, was overpaid by the Florida

Medicaid Program as alleged in the Amended Final Audit Report (Amended FAR) dated August 31, 2012. Also at issue are the amounts of any overpayment, whether any penalty should be imposed (and the amount thereof), and whether the Agency for Health Care Administration (Petitioner) is entitled to recover its costs (and the amount thereof).

PRELIMINARY STATEMENT

Petitioner asserts that Respondent received an overpayment during the audit period at issue (December 4, 2008, through December 31, 2010) in the amount of $135,023.38. The payments at issue were based on billings from Respondent for Companion Services under the Medicaid Waiver Program. The details of the alleged overpayment will be set forth in the Findings of Fact section of this Recommended Order.

As part of the routine audit process, Petitioner prepared a Preliminary Audit Report (PAR). Respondent did not respond to the PAR. Petitioner thereafter prepared a Final Audit Report (FAR). Following the issuance of the FAR, Respondent timely requested a formal administrative hearing to challenge the determinations that an overpayment had been made and that Respondent would be assessed a fine and costs. The matter was referred to DOAH, and this proceeding followed. After the matter was referred to DOAH, Petitioner prepared an Amended FAR, which the undersigned permitted to be filed on the motion of

Petitioner and without objection from Respondent. The Amended FAR clarified the authority upon which Petitioner relied but did not change the amounts of the alleged overpayment, the penalty that was to be imposed, or the costs that were to be recovered.

At the final hearing, Petitioner presented the testimony of Susan Prater DeBeaugrine (Petitioner's Program Director for the Developmental Disabilities and Special Projects Unit) and David Posey (Petitioner's auditor). Without objection, Petitioner's Exhibit Notebook, Volume 1, consisting of 12 sequentially- numbered exhibits and Petitioner's Deposition Notebook, consisting of the deposition of Patricia Williams and the exhibits to the deposition, were admitted into evidence.

Without objection, official recognition was taken of the relevant handbooks, rules, and statutes, which are set forth in Petitioner's motion filed October 10, 2012.

Respondent presented the testimony of Patricia Williams, the owner and president of Respondent. Respondent offered no exhibits.

A Transcript of the hearing, consisting of one volume, was filed November 16, 2012. On Respondent's motion and without objection from Petitioner, the deadline for filing of proposed recommended orders was extended to December 20, 2012. Both parties timely filed a Proposed Recommended Order, which have

been duly considered by the undersigned in the preparation of this Recommended Order.

Unless otherwise noted, all statutory references are to Florida Statutes (2012).

FINDINGS OF FACT

1. At all times relevant to this proceeding, Respondent has been a provider with the Florida Medicaid Program and has had a valid Medicaid Provider Agreement with Petitioner.

2. Petitioner is the agency of the State of Florida charged with the responsibility of administering the Florida Medicaid Program. Among its duties, Petitioner is required to conduct audits and to recover "overpayments . . . as appropriate." Section 409.913(1)(e) defines "overpayment" 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."

3. Petitioner's Bureau of Medicaid Services has the responsibility for polices regarding Developmental Disabilities Waiver and Provider Reimbursement.

4. At all times relevant to this proceeding, Respondent was subject to all applicable federal and state laws, regulations, rules, and Medicaid Handbooks.

   
   

   
   

5. Respondent is required to comply with the Florida Medicaid Provider General Handbook, the Developmental Disabilities Waiver Services Coverage and Limitations Handbook, and the Provider Reimbursement Handbook.

6. Respondent is an experienced Medicaid provider that provides a variety of Medicaid services. Respondent's annual billings to the Medicaid program exceed $1,000,000.00.

7. Among the Medicaid services it provides, Respondent provides Companion Services (billing code S5135) to recipients under the Developmental Disabilities Home and Community Based Services Waiver Program.

8. There is coverage limitation for Companion Services. A recipient can receive no more than 24 quarter-hours (six hours) of Companion Services per day and no more than 30 hours of Companion Services per week. The alleged overpayments at issue were based on billings for days on which Companion Services exceeded six hours.

9. As part of a larger audit of Medicaid providers, Petitioner audited Respondent based on billings for Companion Services submitted by Respondent and paid by Petitioner. All of the services at issue in this proceeding were paid by Petitioner to Respondent based on Respondent's billings.

10. Taking information reflected by Respondent's billings

    
    

    for Companion Services to 46 recipients during the audit period, Petitioner generated a Preliminary Audit Report (PAR) on

    March 14, 2012. The PAR cited the Coverage Handbook, statues, and rules Petitioner relied upon. Petitioner attached to the PAR a detailed audit report that determined that Respondent was overpaid $135,023.38 for Companion Services during the audit period.

11. The PAR was not final agency action. Respondent was advised of the following options:

    1. Pay the identified overpayment in this notice within 15 days of the receipt of this letter and wait for the issuance of the final audit report.

       
       

    2. If you wish to submit documentation in support of the claims identified as overpayments, you must do so within 15 days of receipt of this letter. Documentation that appears to be altered, or in any other way appears not to be authentic, will not serve to reduce the overpayment. Documentation must clearly identify which discrepancy, as set forth in the attached audit findings, it purports to support. Any documentation received will be taken under consideration and you will be notified of the results of the review.

       
       

    3. If you choose not to respond, wait for the issuance of the final audit report.

       
       

12. The PAR also contained the following advice:

    
    

    A final audit report will be issued that will include the final identified overpayment, applied sanctions, and assessed costs, taking into consideration any information or documentation that you have

    
    

    already submitted. Any amount due will be offset by any amount already received by the Agency in this matter. The final audit report will inform you of any hearing rights that you may wish to exercise.

    
    

13. Respondent did not respond to the PAR. Ms. Williams testified, credibly, that she was out of the country because of her mother's death when the PAR was issued.

14. Petitioner generated a Final Audit Report (FAR) dated April 13, 2012, and subsequently an Amended FAR dated August 31, 2012, which assessed against Respondent the alleged overpayment in the amount of $135,023.38, a fine in the amount of

    $27,004.68, and costs in the amount of $49.22.1 Ms. Williams received the FAR.

15. The Amended FAR was filed after the matter had been referred to DOAH. The undersigned granted Petitioner's motion to file the Amended FAR without objection from Respondent. The amount of the alleged overpayment remained the same in the PAR, FAR, and Amended FAR. The amounts of the fine and costs remained the same in the FAR and Amended FAR.

16. Billings are submitted by providers using a form that is available, together with applicable billing guidelines, on the Medicaid Fiscal Agent Web Portal at "http://mymedicaid-

    florida.com."

    
    

17. Ms. Williams, who prepares all of the Medicaid billings for Respondent, routinely uses that website and is

    
    

    familiar with its contents. Ms. Williams knows how to access and complete billing forms. She also knows how to access handbooks, including information as to coverage limitations.

18. The billing form used by Medicaid providers has a "from date of service" column and a "to date of service" column. For Companion Services, the form will permit a provider to put only one date of service. For each of the challenged billings at issue in this proceeding, the same date was listed in these two columns.

19. As an example, Mr. Posey's audit analysis for recipient A.B.L. on Bates stamp page 56 of Petitioner's Exhibit

    3 reflects that the first "from date of service" was March 31, 2010, and the "to date of service" was also March 31, 2010. The number of units billed and paid for was 40 quarter-hours. Since the coverage limitation is 24 quarter-hours for a day,

    Mr. Posey determined that the provider was overpaid by 16 quarter-hour units for that billing day. Mr. Posey determined the reimbursement rate for each quarter-hour unit of service and multiplied that rate by the number of excess quarter-hour units. That product is the amount of the overpayment for that date.

    Using the same example for recipient A.B.L. on March 31, 2010, the auditor multiplied 16 quarter-hour units by $3.37 (the quarter hour reimbursement rate), and determined that the

    
    

    
    

    provider had been overpaid $53.92 for that date of service for that recipient.

20. Mr. Posey performed a similar analysis for each of Respondent's billings during the audit period and determined the overpayment for all days of service on which the billed amount for the recipient exceeded 16 quarter-hour units of service. The auditor then added the overpayments, with the resulting sum being $135,023.38, the amount of the claimed overpayment.

21. Respondent asserts that it did not receive any overpayment because it utilized "span" billing, i.e., it provided services over more than one day, but billed for those services under the last day the service was performed.

22. Some coverage limitations are based on time periods greater than one day. There are coverage limitations based on weekly, monthly, and annual periods. Span billing for those periods is acceptable in that the provider is to insert the date the service began in the "from date of service" column and the date the service ended in the "to date of service" column. While the billing form will not permit different dates in these two columns if the service has a one-day coverage limitation, the form will permit different dates if the coverage limitation for a service is based on more than a one-day period.

23. Ms. Williams testified that she provided Petitioner

    
    

    with time records of her employees who actually provided the subject services to the different recipients. According to Ms. Williams, those records substantiate her claim that there was no overpayment. Those records were provided to Petitioner

    after the issuance of the FAR. Petitioner did not analyze those records. Those time records were not introduced as evidence, and there was no other evidence to support Ms. Williams' testimony.2

24. Ms. Williams testified that she had not been trained that span billing was not permitted where there is a one-day coverage limitation.

25. Ms. Williams knew or should have known that Companion Services had a one-day coverage limitation.

26. Respondent's billings do not justify the payments it received.

27. Petitioner has recouped an overpayment from Respondent on one prior occasion.

28. Among other topics, the FAR advised Respondent of its right to request an administrative hearing pursuant to the provisions of chapter 120. Thereafter, Respondent requested a formal administrative hearing, the matter was referred to DOAH, and this proceeding followed.

    
    

29. The overpayments at issue are the result of Respondent's misinterpretation of Petitioner's billing requirements. No fraud or abuse is involved in this proceeding.

    CONCLUSIONS OF LAW

    
    

30. The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this proceeding pursuant to sections 120.569, 120.57(1), and 409.913(31).

31. Section 409.913(1)(d) defines the term "overpayment" to "include 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."

32. Section 409.913(7)(e) provides that a Medicaid provider is obligated to present claims that are "true and accurate" and reflect services that are provided in accordance with all Medicaid "rules, regulations, handbooks, and policies and in accordance with federal, state, and local law."

33. Section 409.913(2) requires Petitioner to conduct audits to detect overpayments. Section 409.913(11) requires Petitioner to require repayment of an overpayment.

34. The burden of proof is on Petitioner to prove the material allegations by a preponderance of the evidence. Southpointe Pharmacy v. Dep't of Health & Rehab. Servs., 596 So.

    
    

    2d 106, 109 (Fla. 1st DCA 1992). The sole exception is that the standard of proof is clear and convincing evidence for the fine that Petitioner seeks to impose. Dep't of Banking & Fin. v.

    Osborne Stern & Co., 670 So. 2d 932, 935 (Fla. 1996).

    
    

35. Section 409.913(21) provides that Petitioner shall prepare and issue audit reports when determining overpayments. Section 409.913(22) provides that the "audit report, supported by agency work papers, showing an overpayment to a provider constitutes evidence of the overpayment." Petitioner presented such evidence at the formal hearing. Respondent did not refute that evidence.

36. Petitioner has the authority to impose an administrative fine against Respondent based on the provisions of subsections 409.913(15), (16), and (17) and Florida Administrative Code Rule 59G-9.070. Petitioner seeks to impose an administrative fine in the amount of $27,004.68. The amount sought is less than the maximum permitted amount as set forth in Florida Administrative Code Rule 59G-9.070(4)(b). It is within Petitioner's discretion to impose a fine in the amount requested.

37. Section 409.913(23)(a) authorizes Petitioner to recover investigative costs if Petitioner prevails in this proceeding. Petitioner prevailed and is entitled to these costs in the amount of $49.22.

34. Petitioner has met its burden of proof in this

proceeding.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Agency for Health Care Administration enter a final order finding that Allcare Health and Human Services, Inc., was overpaid by the Florida Medicaid Program in the principal amount of $135,023.38. It is further recommended that the final order require Allcare Health and Human Services, Inc., to repay the Florida Medicaid the amount of $135,023.38 together with applicable interest and cost in the amount of $49.22. It is further recommended that the final order impose against Allcare Health and Human Services, Inc., an administrative fine in the amount of $27,004.68.

S

DONE AND ENTERED this 18th day of January, 2013, in Tallahassee, Leon County, Florida.

CLAUDE B. ARRINGTON

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 18th day of January, 2013.

ENDNOTES

1 The fine is equal to 20 per cent of the amount of the overpayment. Mr. Posey established that Petitioner incurred costs in the amount of $49.22.

2 Respondent offered no analysis of the time sheets Ms. Williams gave to Mr. Posey, and her uncorroborated testimony that the time sheets show that the billed services were provided is insufficient to refute Petitioner's evidence that Respondent received an overpayment based on its billings. Respondent has not requested that it be permitted to amend its billing to accurately reflect the dates each unit of service was provided. The undersigned knows of no authority for an administrative law judge to order Petitioner to permit Respondent to file an amended billing.

COPIES FURNISHED:

William Michael Blocker, II, Esquire Agency for Health Care Administration Fort Knox Building 3, Mail Stop 3 2727 Mahan Drive, Suite 3431

Tallahassee, Florida 32308

J. Blayne Jennings, Esquire Post Office Box 781599 Sebastian, Florida 32978-1599

Richard J. Shoop, Agency Clerk

Agency for Health Care Administration Fort Knox Building 3, Mail Stop 3 2727 Mahan Drive, Suite 3431

Tallahassee, Florida 32308

Elizabeth Dudek, Secretary

Agency for Health Care Administration Fort Knox Building 3, Mail Stop 1 2727 Mahan Drive, Suite 3431

Tallahassee, Florida 32308 Stuart Williams, General Counsel

Agency for Health Care Administration Fort Knox Building 3, Mail Stop 3 2727 Mahan Drive, Suite 3431

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: 12-002594MPI

Orders for Case No: 12-002594MPI