STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Petitioner, )

)

vs. ) CASE NO. 83-3734

)

PINELLAS/PASCO DISTRICT ) MENTAL HEALTH BOARD V, INC., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, K. N. Ayers, held a public hearing in the above- styled case on May 31, 1984, at Clearwater, Florida.

APPEARANCES

For Petitioner: Claire D. Dryfuss, Esquire

Department of Health and Rehabilitative Services

1323 Winewood Boulevard

Tallahassee, Florida 32301

For Respondent: Jeffrey L. Myers, Esquire

Galleria Plaza, Suite 10 12551 Indian Rocks Road Largo, Florida 33544

Following an audit of Pinellas/Pasco District Mental Health Board V, Inc., the Department of Health and Rehabilitative Services (DHRS) disallowed as unauthorized expenditures and sought refund of more than $100,000 from the Mental Health Board; and the Board requested an administrative hearing to contest this claim. Since the Board initially requested a hearing, they were designated as petitioner by DHRS when the case was referred to the Division of Administrative Hearings. When this case was noticed for hearing the parties were realigned to show DHRS as Petitioner for the reason that it is the one seeking something (a refund) and has the ultimate burden of proof. Balino v.

Department of Health and Rehabilitative Services, 348 So.2d 349 (Fla. 1st DCA 1977). A prima facie case is established by DHRS submitting the audit report into evidence and thereby shifting the burden of proceeding to the Board; however, the ultimate burden remains with DHRS.

Prior to the hearing the parties reduced the issues to only one which remains in dispute. The parties stipulated that the sole issue remaining contested is the VA costs in the amount of $27,675. Thereafter, each party called one witness and two exhibits were admitted into evidence.

Proposed findings submitted by the parties, insofar as they are included herein, are adopted; otherwise, they are rejected as not supported by the evidence, irrelevant, or immaterial to the conclusions reached.

FINDINGS OF FACT

1. The amount in controversy following initial conferences between the parties was $108,028 district-wide.

   
   

2. The Mental Health Board acknowledges and admits liability as a result of the 1980-81 state audit of $41,955.

   
   

3. DHRS acknowledges that an audit adjustment of $38,296 is justified. This principally comprises the rental value of donated space which was initially disallowed.

   
   

4. The Board contracts with health care providers to provide services to residents of the area. One of these providers is the Pinellas Comprehensive Alcohol Services (PCAS) which the Board contracted to reimburse for the cost of providing alcohol treatment and services to the residents of Pinellas County. PCAS entered into a contract with the Veterans Administration to provide services to veterans of the area at a cost to the VA of $17 per day.

   
   

5. The difference in the actual cost of providing the services to the veterans for the period covered by this audit and the $17 per day per veteran reimbursed to PCAS amounts to $27,675. It is this sum that DHRS has disallowed and contends is owed to DHRS in addition to the $41,955 acknowledged as owed by the Board.

   
   

6. All persons receiving services pursuant to the VA contract would have qualified to receive services pursuant to PCAS contracts with the Board and the total cost of their treatment would have been allowable if they were financially unable to pay. No evidence was submitted regarding the financial ability of these VA patients to pay for the services had they not been entitled to veterans hospitalization. Absent the $17 per day contract with the VA, all of these veterans could have been treated at PCAS and the total cost of their treatment for which the patients were not financially able to pay would have been allowed as a cost for which DHRS would provide matching funds.

   
   

7. In reaching the sum $27,675 in disallowed costs, the auditor for DHRS found the total cost of providing these services by PCAS to be $95,695.

   Thirteen of the 25 beds were allocated to the VA patients and 12 were allocated to DHRS patients. Allocating 13/25 of the cost of $95,695 results in just under

   $50,000 costs allocated to the VA. Reimbursement from the VA was $22,530 which, when deducted from the costs for the VA patients, equals $27,675, the amount in dispute.

   
   

   CONCLUSIONS OF LAW

   
   

8. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings.

   
   

9. At the hearing DHRS' witness testified that the regulations he applied in disallowing the excess costs over reimbursements from the VA were contained in Rule 10E-4.12, Florida Administrative Code. It is noted that this rule was repealed effective January 23, 1983; however, it was in effect at the time of the audit. It is further noted that proposed recommended orders submitted by

   DHRS did not refer to this rule. The only authority cited by DHRS to support its position that this $27,675 charge is not allowable is Section 397.74, Florida Statutes, which deals with contracts the boards may enter into with providers. Subsection (2) thereof provides in part:

   
   

   Contracts shall include, but not be limited to, the following:

   * * *

   (c) A provision that every reasonable effort to collect appropriate reimbursement for the cost of providing alcohol and mental health services to persons able to pay for service, including first-party and third-party payments, shall be made by facilities providing services pursuant to this act.

   
   

10. This language does not support the conclusion that if the provider fails to collect the costs of providing services from one who is financially able to pay, the costs of providing these services will be disallowed.

    
    

11. Rule 10E-4.12, Florida Administrative Code, provides in pertinent part:

    
    

    1. The State's Share of Financial Participation:

       1. In determining the State's share of financial participation as described in Section 394.76(4) expenditures which are defined as non-reimbursable in Section (9)(b) are to be deducted in the formula specified in Section 394.76(4).

          
          

12. A review of Rule 10E-4.12(9)(b), Florida Administrative Code, which lists non-reimbursable expenditures fails to disclose that costs in excess of those reimbursed by the VA or other federal agency are non-reimbursable.

    
    

13. From the foregoing it is concluded that all of the VA patients treated by PCAS under their contract with the VA were residents of Pinellas County and eligible for treatment by PCAS; that, while the statute provides that diligent effort shall be made to recover the costs of providing services from those financially able to pay the statute does not compel the deductions here sought; nor do the rules cited by Petitioner's witness require that these costs be disallowed.

RECOMMENDATION

It is therefore RECOMMENDED that the expenditure of the disallowed $27,675 cost of providing services to VA patients be allowed and that a final order be entered directing the Pinellas/Pasco District Mental Health Board V, Inc., reimburse DHRS in the amount of $41,955 for disallowed expenditures for the 1980-81 fiscal year.

DONE AND ENTERED this 25th day of June 1984 at Tallahassee, Leon County, Florida.

K. N. AYERS Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 25th day of June 1984.

COPIES FURNISHED:

Claire D. Dryfuss, Esquire Department of Health and

Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, Florida 32301

Jeffrey L. Myers, Esquire Galleria Plaza, Suite 10 12551 Indian Rocks Road Largo, Florida 33544

David H. Pingree, Secretary Department of Health and

Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, Florida 32301

Docket for Case No: 83-003734

Orders for Case No: 83-003734