STATE OF FLORIDA

AGENCY FOR HEALTH CARE ADMINISTRATION

STATE OF FLORIDA, AGENCY FOR HEALTH CARE ADMINIST RATION,

FILED

AliCA

AGft-lCY CLERK

2111 NOV 13 A IO 0-.

Petitioner,

V.

DOAH CASE NO. 17-0598MPI MPI CASE ID: 2015-0003178 PROVIDER NO. 052154000

RENDITION NO.: AHCA-\q_ -o'690 -FOF-MDO

ALLEN A. LENOIR, M.D.,

Respondent.

I

FINAL ORDER

This case was referred to the Division of Administrative Hearings ("DOAH") where the assigned Administrative Law Judge ("ALJ"), Robert E. Meale, issued a Recommended Order after conducting a formal hearing. At issue in this proceeding is whether the Agency for Health Care Administration ("Agency" ) is entitled to recover alleged Medicaid overpayments it made to Respondent for paid claims covering the period from July 1, 2011 to December 31, 2014, and whether the Agency should impose costs and a fine on Respondent. The Recommended Order dated September 24, 2019, is attached to this Final Order and incorporated herein by reference,

except where noted infra.

RULING ON EXCEPTIONS

Petitioner filed exceptions to the Recommended Order.1 In determining how to rule upon Petitioner' s exceptions and whether to adopt the ALJ's Recommended Order in whole

1 Respondent filed exceptions to the Recommended Order 28 days after the deadline for filing exceptions had passed. In accordance with Hamilton County Board of County Commissioners v. State Department of Environmental Regulation, 587 So. 2d 1378, 1390 (Fla. 2d DCA 1998), the Agency Clerk entered an Order to Show Cause Why Respondent' s Exceptions Should Not Be Stricken Due to Not Being Time Filed with the Agency. Respondent filed a response to the Order to Show Cause, but his response failed to demonstrate he untimely filed his exceptions due to inadvertence, mistake, or excusable neglect. Thus, the Agency Clerk entered an Order Striking Respondent's Exceptions as Untimely Filed. Therefore, the Agency will not consider and rule upon the merits of Respondent's exceptions in the Final Order.

Filed November 19, 2019 4:04 PM Division of Administrative Hearings

or in part, the Agency must follow section 120.57(1)(1), Florida Statutes, which provides in pertinent part:

The agency may adopt the recommended order as the final order of the agency. The agency in its final order may reject or modify the conclusions of law over which it has substantive jurisdiction and interpretation of administrative rules over which it has substantive jurisdiction. When rejecting or modifying such conclusion of law or interpretation of administrative rule, the agency must state with particularity its reasons for rejecting or modifying such conclusion of law or interpretation of administrative rule and must make a finding that its substituted conclusion of law or interpretation of administrative rule is as or more reasonable than that which was rejected or modified. Rejection or modification of conclusions of law may not form the basis for rejection or modification of findings of fact. The agency may not reject or modify the findings of fact unless the agency first determines from a review of the entire record, and states with particularity in the order, that the findings of fact were not based upon competent substantial evidence or that the proceedings on which the findings were based did not comply with essential requirements oflaw....

§120.57(1)(1), Fla. Stat. Additionally, "[t]he final order shall include an explicit ruling on each exception, but an agency need not rule on an exception that does not clearly identify the disputed portion of the recommended order by page number or paragraph, that does not identify the legal basis for the exception, or that does not include appropriate and specific citations to the record."

§ 120.57(1)(k), Fla. Stat. In accordance with these legal standards, the Agency makes the following rulings on Petitioner's exceptions:

In its first exception, Petitioner takes exception to the ALJ's conclusions of law in

Paragraph 1986 of the Recommended Order, arguing it is a finding of fact that is not based on competent, substantial evidence because it contains an obvious math error. The Agency will treat Petitioner's first exception as a motion to correct a scrivener's error, which it will grant. Therefore, the Agency modifies Paragraph 1986 of the Recommended Order as follows:

1986. Petitioner also seeks a fine equal to 20% of the total overpayment, after extension. In this case, based on its final prehearing determination of overpayments totaling $177,578.68, Petitioner has sought a fine of $35,515.73, which is 20% of the total overpayments.

In its second exception, Petitioner takes exception to Paragraph 1991 of the Recommended Order, arguing it contains findings of fact that are not supported by competent, substantial record evidence and conclusions of law that are unreasonable or incorrect. The Agency agrees.

Section 409.913(16), Florida Statutes, states the Agency "shall impose" a "fine of up to

$5,000 for each violation." Likewise, rule 59G-9.070(7), Florida Administrative Code, states that "sanctions shall be imposed" for failing to comply with the laws and rules that govern Florida's Medicaid program. Thus, the Agency is required to impose a fine of up to $5,000 for each violation.

Section 409.913(17), Florida Statutes, sets forth the factors the Agency "shall consider" "[i]n determining the appropriate administrative sanction to be applied." Thus, the Agency is required to consider all these factors in determining the fine to be imposed. The statutory language does not require the Agency to consider any specific evidence in considering the factors, nor does it require the Agency to give certain factors more weight in making its determination. Rather, the Legislature has left those decisions to the Agency's discretion.

Here, there is competent, substantial record evidence the Agency considered all the factors in section 409.913(17), Florida Statutes, in determining the amount of the fine to impose on Respondent. See January 8, 2018 Hearing Transcript, Pages 86-87; Petitioner's Exhibit 15. Thus, the Agency has complied with section 409.913(17), Florida Statutes.

The ALJ is correct that section 409.913(17)(a) requires the Agency to consider "[t]he seriousness and extent of the violation or violations." However, the ALJ's conclusion that such consideration necessarily requires provider comparisons and/or specific types of provider comparisons is contrary to the plain statutory language. Further, the ALJ's findings/conclusions regarding those comparisons are entirely speculative and not based on competent and substantial record evidence.

For these reasons, the Agency finds that it has substantive jurisdiction over the conclusions of law in Paragraph 1991 of the Recommended Order, and that it can substitute conclusions of law that are as or more reasonable than those of the ALJ. Therefore, the Agency grants Petitioner's second exception and modifies Paragraph 1991 of the Recommended Order as follows:

1991. Howe•rer, tihe record is de•,roid ofcontains evidence te that the Agency has assessed the seriousness and extent of the violations, as required by section 409.913(17)(a). Due to the requirement of documentation, the potential for fraud is slight, and nothing suggests that Respondent manufactured any patient encounter. Bffi-The ALJ would have preferred that the Agency's consideration of the seriousness and extent of Respondent's violations necessitateshave included a comparison with similar providers. Similar providers surely v,rould include pediatric infectious disease consultants seeing hospitalized neonates with similarly se11ere presenting problems, possibly during the same general timeframe, although perhaps a broader segment of providers would also qualify as similar providers. Perhaps, similarly situated pro:viders miscode $1000 of e>ref)' $50,000, and Respondent might be found to have miscoded $10,000 of every

$50,000 that would be serious and e:x:tensi•re. But perhaps Respondent's miscodings are not egregious.

In its third exception, Petitioner takes exception to Paragraph 1992 of the Recommended Order, arguing the ALJ's conclusions of law in that paragraph are unreasonable. The Agency agrees.

The ALJ's factual finding regarding the data available to Petitioner in making its determination is speculative and not supported by competent and substantial record evidence.

And, as explained in on the ruling on Petitioner's second exception, supra, which is hereby incorporated by reference, the Agency considered rule 59G-9.070(4)(a)-(c), Florida Administrative Code, in conjunction with the factors set forth at section 409.913(17), Florida Statutes, to determine the appropriate fine. See January 8, 2018 Hearing Transcript, Pages 86- 87; Petitioner's Exhibit 15. Thus, to the extent Paragraph 1992 contains findings of fact, the Agency finds they are not supported by competent, substantial record evidence. To the extent it contains conclusions of law, the Agency finds that it has substantive jurisdiction over the conclusions of law in Paragraph 1992 of the Recommended Order and can substitute conclusions of law that are as or more reasonable than those of the ALJ. Therefore, the Agency grants Petitioner's third exception and modifies Paragraph 1992 to state:

1992. Undoootedly, Petitioner has this data. Regardless of whether it analy2ed it, Petitioner has eleeted not to introduee the data into the present reeord and instead has relied on its rule that, regardless of the seriousness and e'K:tent of their violations, punishes all violators on the basis of the number of times they have been found guilty of having violated their eoding responsibilities.The Agency also properly considered Rule 59G-9.070(4){a)-{c) in determining the appropriate amount of the fine to be imposed in this case.

In its fourth exception, Petitioner takes exception to Paragraph 1993 of the Recommended Order, arguing the ALJ's conclusions of law that the Agency's application of rule 590-9.070, Florida Administrative Code, is invalid as applied is unreasonable. After reviewing the entire record of this case, the Agency determines the ALJ's conclusions oflaw in Paragraph 1993 of the Recommended Order are clearly erroneous and do not comply with the essential requirements of law. As stated in the ruling on Petitioner's second exception supra, which is hereby incorporated by reference, the Agency gave due consideration to all the factors

enumerated in section 409.913(17), Florida Statutes, before imposing a fine on Respondent in

this matter. See January 8, 2018 Hearing Transcript, Pages 86-87; Petitioner's Exhibit 15. The ALJ is clearly wrong in concluding the Agency "fail[ed] to introduce evidence to permit findings

as to the seriousness and extent of Respondent's violations" and thus breached its "statutory to impose a penalty based on the statutory criteria." Furthermore, the ALJ's interpretation of the

word "consider" in section 409.913(17), Florida Statutes, places additional requirements on the Agency that are not contemplated by the statute itself. Webster's Dictionary defines "consider" as "to think carefully about" or "to take into account". Merriam-Webster Dictionary, http://www.merriam-webster.com/dictionary/consider (last visited October 9, 2019). The term does not, by its plain and ordinary meaning, require the Agency to undergo an elaborate analysis of claims data from other providers in order to determine the seriousness of Respondent's violations as the ALJ concludes before it can impose a fine. Therefore, the Agency grants Petitioner's fourth exception and rejects the conclusions of law in Paragraph 1993 of the Recommended Order in their entirety.

FINDINGS OF FACT

The Agency adopts the findings of fact set forth in the Recommended Order, except

where noted supra.

CONCLUSIONS OF LAW

The Agency adopts the conclusions of law set forth in the Recommended Order, except

where noted supra.

IT IS THEREFORE ADJUDGED THAT:

Respondent is hereby required to repay the Agency $176,144.40 in overpayments, plus interest at a rate of ten (10) percent per annum as required by Section 409.913(25)(c), Florida

Statutes, to the Agency. Additionally, the Agency hereby imposes a fine of $35,228.88 on Respondent pursuant to rule 59G-9.070(7)(e), Florida Administrative Code. Respondent shall make full payment of the overpayment and fine to the Agency for Health Care Administration within 30 days of the rendition date of this Final Order unless other payment arrangements have been agreed to by the parties. Respondent shall pay by check payable to the Agency for Health Care Administration and mailed to the Agency for Health Care Administration, Office of Finance and Accounting, 2727 Mahan Drive, Mail Stop 14, Tallahassee, Florida 32308.

Additionally, since the Agency has prevailed in this matter, it is entitled to recover the investigative, legal and expert witness costs it incurred in this matter. § 409.913(23), F.S. The parties shall attempt to agree to amount of investigative, legal, and expert witness costs for this matter. If the parties are unable to reach such agreement, either party may file a request for hearing with the Division of Administrative Hearings under this case style within 30 days of the date of rendition of this Final Order, and the Administrative Law Judge who presided over this

matter shall determine the amount of such costs.

DONE and ORDERED this & day of

Florida.

J..., 2019, in Tallahassee,

'

MARY C. AYHEW, SEC ARY

AGENCY FOR HEALTH CARE ADMINISTRATION

NOTICE OF RIGHT TO JUDICIAL REVIEW

A PARTY WHO IS ADVERSELY AFFECTED BY THIS FINAL ORDER IS ENTITLED TO JUDICIAL REVIEW, WHICH SHALL BE INSTITUTED BY FILING THE ORIGINAL NOTICE OF APPEAL WITH THE AGENCY CLERK OF AHCA, AND A COPY ALONG WITH THE FILING FEE 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 THE RENDITION OF THE ORDER TO BE REVIEWED.

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing Final Order has been furnished to the persons named below by the method designated on this /J day of

-

, ency Clerk Agency for Health Care Administration 2727 Mahan Drive, MS #3

Tallahassee, Florida 32308

(850) 412-3630

COPIES FURNISHED TO:

Honorable Robert E. Meaf'e' · Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060 (via electronic filing)

...

Tom Barnhart, Esquire

Robert Antonie Milne, Esquire Assistant Attorneys General Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050

(via electronic mail to tom.barnhart@myfloridalegal.com and robert.milne@myfloridalegal.com)

William J. Sanchez, Esquire William J. Sanchez, P.A.

13590 Southwest 134th Avenue, Suite 209

Miami, Florida 33186

(via electronic mail to william@wsanchezlaw.com)

Allen Lenoir, M.D. Post Office Box 561823 Miami, Florida 33256

(via electronic mail to fort.lauderdale.breeze@gmail.com)

Medicaid Program Integrity Office of the Inspector General (via electronic mail)

Medicaid Accounts Receivable Finance & Accounting

(via electronic mail)

Docket for Case No: 17-000598MPI

Orders for Case No: 17-000598MPI