STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

INTERNATIONAL HUMANITY HEALTH ) SERVICES, INC., )

)

Petitioner, )

)

vs. ) CASE NO. 92-3698

)

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to written notice, a formal hearing was conducted in this case on October 23, 1992, at Miami, Florida, before Michael M. Parrish, a duly designated Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Dr. Imo J. Akpaeti

International Humanity Health Services, Inc.

561 Northeast 79th Street Suite 233

Miami, Florida 33138

For Respondent: Gordon B. Scott, Esquire

Senior Attorney

HRS Medicaid Office 1317 Winewood Boulevard

Building 6, Room 234

Tallahassee, Florida 32399-0700 STATEMENT OF THE ISSUES

The issue in this case is whether the Department of Health and Rehabilitative Services should grant or deny the Petitioner's application for reinstatement as an active Medicaid provider.

PRELIMINARY STATEMENT

At the formal hearing the Petitioner presented the testimony of Dr. Imo J. Akpaeti and Ms. Joan Saldamando. The Petitioner also offered the following exhibits which were pre-numbered prior to the hearing: 1, 4, 5, 6, 7, 8, 10, 13,

15, 20, 21, 22, and 23. Petitioner's exhibits 4 and 21 were received in evidence without objection. The Hearing Officer reserved ruling on the admissibility of the other exhibits offered by the Petitioner. Those exhibits are discussed and ruled on below.

The Respondent did not call any witnesses, but did offer five exhibits.

The Respondent's exhibits 1, 3, 4, and 5 were received in evidence. The Hearing Officer reserved ruling on the admissibility of the Respondent's exhibit 2.

That exhibit is discussed and ruled on below.

The Petitioner has attempted to expand the issues in this case to include some form of review of, or collateral attack upon, the emergency order of May 31, 1990, that terminated the Petitioner's participation in the Medicaid program. Most of the exhibits offered by the Petitioner are addressed to these proposed expanded issues. This proceeding is not an appropriate vehicle for review of, or collateral attack upon, the underlying emergency order.

Accordingly, many of the Petitioner's exhibits are irrelevant to the issues presented in this case. Directing attention to the specific exhibits, the Petitioner's exhibits numbered 1, 5, 7, 8, 10, 13, and 23 are all irrelevant; the objections to those exhibits are sustained and they will be treated as rejected exhibits. The Petitioner's exhibits numbered 6, 15, 20, and 22 each contain at least some material that is arguably relevant to the issue in this case. Accordingly, the objections to those exhibits are overruled and they have been received in evidence. Upon further consideration of the Respondent's exhibit number 2, it appears to be relevant to the issues in this case.

Accordingly, the objection to that exhibit is overruled and it has been received in evidence.

Official recognition was taken of Sections 409.901 through 409.920, Florida Statutes, and of Rule 10C-7.060, Florida Administrative Code. The Petitioner's responses to the Respondent's Request for Admissions were also included in the record at the formal hearing.

A transcript of the proceedings at the formal hearing was filed with the Hearing Officer on November 9, 1992. The parties were allowed until November 23, 1992, within which to file their proposed recommended orders. Both parties filed timely proposed recommended orders containing proposed findings of fact and conclusions of law. Specific rulings on all proposed findings of fact submitted by the parties are contained in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. The Petitioner, International Humanity Health Services, Inc., is a former Florida Medicaid provider, having been previously issued provider number 0270687-00. Dr. Imo John Akpaeti is the owner of International Humanity Health Services, Inc., and has been the owner at all material times.

   
   

2. At all material times, Dr. Imo John Akpaeti has also had an ownership interest in Our Lady Health Care Services, which is another former Florida Medicaid provider, having been previously issued provider number 0278564.

   
   

3. The Respondent, the Department of Health and Rehabilitative Services, is the state agency which administers the Florida Medicaid program pursuant to Sections 409.901 through 409.920, Florida Statutes (1991). Gary J. Clark, the Assistant Secretary for Medicaid, is responsible for the overall direction and administration of the Medicaid program in the State of Florida. The Medicaid Fraud Control Unit of the Auditor General's Office is the agency charged with the responsibilty for investigating fraud in the Florida Medicaid program pursuant to Section 409.920, Florida Statutes (1991).

4. By emergency order issued on May 31, 1990, the Petitioner, International Humanity Health Services, Inc., was terminated for cause from participation in the Medicaid program "for violation of federal and state laws and regulations respecting the Medicaid program." The violations cited in the emergency order included billing for services that were not provided, submitting false billings for unperformed services, and receiving payments the provider was not entitled to receive. The emergency order of May 31, 1990, was never appealed or set aside and it continues to be in effect.

   
   

5. By letter dated May 7, 1992, Dr. Imo John Akpaeti requested that International Humanity Health Services, Inc., be reinstated as a Medicaid provider. By letter dated June 3, 1992, Mr. Gary J. Clarke advised Dr. Akpaeti that the Department of Health and Rehabilitative Services intended to deny the request for reinstatement of International Humanity Health Services, Inc. The denial letter of June 3, 1992, included the following reasons:

   
   

   This office has been advised that International Humanity Health Services, Inc., as well as yourself, are under criminal investigation. In addition, this office is also aware that a number of investigations and administrative reviews are ongoing regarding various home health care agencies with which you are associated.

   In view of these circumstances, it would not be prudent for this office to allow your participation in the Medicaid program until these matters have been resolved.

   
   

6. Prior to issuance of the denial letter, the Department of Health and Rehabilitative Services had been notified by the Director of the Medicaid Fraud Control Unit that a criminal investigation was being conducted into the activities of Our Lady Health Care Services, provider number 0278564.

   
   

7. Records of International Humanity Health Services, Inc., were seized by agents of the Medicaid Fraud Control Unit in 1990, pursuant to warrant. Those records have since been forwarded to a U.S. Attorney and are now being considered by a federal grand jury. Records of Our Lady Health Care Services were also seized by agents of the Medicaid Fraud Control Unit pursuant to warrant. None of the seized records have been returned to either of the entitites from which they were originally seized. Both International Humanity Health Services, Inc., and Our Lady Health Care Services are the subjects of criminal investigations.

   
   

   CONCLUSIONS OF LAW

   
   

8. The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this proceeding. Section 120.57, Florida Statutes.

   
   

9. The Department of Health and Rehabilitative Services is the single state agency responsible for the administration of Medicaid funds under Title XIX of the Social Security Act. Section 409.901, Florida Statutes.

   
   

10. In a case of this nature the applicant bears the burden of demonstrating entitlement to the relief sought. See Rule 28-6.008(3), Florida Administrative Code, and Florida Dept. of Transportation v. J.W.C. Company,

    Inc., 396 So.2d 778 (Fla. 1st DCA 1981). If the proof is insufficient to demonstrate entitlement, the relief sought must be denied.

    
    

11. Section 409.913, Florida Statutes, provides, inter alia, that the Department of Health and Rehabilitative Services

    
    

    shall operate a program to oversee the activities of Medicaid recipients, and providers and their representatives, to ensure that fraudulent and abusive behavior

    and neglect of recipients occur to the minimum extent possible.

    
    

    Acting pursuant to the duty imposed by Section 409.913, Florida Statutes, the Department of Health and Rehabilitative Services issued an emergency order which terminated the Petitioner's participation in the Medicaid program for cause.

    The alleged violations that formed the basis for the emergency order included billing for services that were not provided, submitting false billings for unperformed services, and receiving payments the provider was not entitled to receive.

    
    

12. With regard to former Medicaid providers who have been terminated for cause, Rule 10C-7.060(6)(b), Florida Administrative Code, contains the following language regarding reinstatement:

    
    

    (6) The following sanctions shall be imposed on a provider who violates the provisions of Subsection 10C-7.060(4), F.A.C.:

    * * *

    (b) Termination from the program, with reinstatement based on submission of a new application and departmental approval. The department shall grant reinstatement only if it is reasonably certain that the violation or violations that led to termination will not be repeated. In making this determination, the department will consider, among other factors:

    1. Whether the party has been convicted in a federal, state, or local court of other offenses related to participation in the Medicare or Medicaid program which were not considered during the development of the termination; and

    2. Whether the state or local licensing authorities have taken any adverse action against the party for offenses related to participation in the Medicare or Medicaid program which were not considered during the development of the termination. (Emphasis added.)

    
    

13. As noted in the findings of fact, above, the Petitioner's records and the records of another former Medicaid provider owned by Dr. Akpaeti were seized by warrant and both business entities are the subjects of criminal investigations. Under these circumstances the Department of Health and Rehabilitative Services cannot be "reasonably certain that the violation or violations that led to termination will not be repeated." To the contrary, the

continuing criminal investigations raise serious cause for concern as to the possibility of repeat violations, which concerns are not resolved by the evidence presented by the Petitioner.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Health and Rehabilitative Services issue a Final Order in this case denying the Petitioner's application for reinstatement as an active Medicaid provider and denying all other relief requested by the Petitioner.

DONE AND ENTERED this 9th day of February, 1993, in Tallahassee, Leon County, Florida.

MICHAEL M. PARRISH

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 9th day of February, 1993.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-3698

The following are my specific rulings on all proposed findings of fact submitted by both parties.

Proposed findings submitted by Petitioner:

The Petitioner's proposed recommended order consists of a one-page document in which it asserts, in paragraphs identified as A, B, C, and D, four things it believes the Petitioner established at the hearing. Those four paragraphs are addressed first.

Paragraph A: This is rejected as constituting a proposed conclusion of law, rather than a proposed finding of fact. Further, the proposed conclusion relates to a matter which is not at issue in this case.

Paragraph B: This is rejected as constituting a proposed conclusion of law, rather than a proposed finding of fact. Further, the proposed conclusion relates to a matter which is not at issue in this case.

Paragraph C: This is rejected as constituting a proposed conclusion of law, rather than a proposed finding of fact. Further, the proposed conclusion relates to a matter which is not at issue in this case.

Paragraph D: This paragraph is a mixed assertion of fact and conclusion of law. To the extent it is intended as an assertion of fact, it is rejected as contrary to the greater weight of the evidence.

In the second portion of its proposed recommended order, the Petitioner asserts, in paragraphs identified as A, B, and C, three things it believes the Respondent failed to establish. Those three paragraphs are addressed as follows:

Paragraph A: This is rejected as contrary to the greater weight of the evidence.

Paragraph B: This paragraph is literally correct, but it should be noted that the greater weight of the evidence establishes that as of the time of the formal hearing, a criminal investigation was in progress regarding the billing practices of Our Lady Health Care Services, provider number 0278564.

Paragraph C: This paragraph is literally correct, but is irrelevant to the disposition of this case.

Proposed findings submitted by Respondent:

Paragraphs 1 through 9: Accepted in Substance.

Paragraphs 10 and 11: Accepted that at all relevant times Dr. Akpaeti had an ownership interest in Our Lady Health Care Services. The remainder of these paragraphs is rejected as subordinate and unnecessary evidentiary details.

Paragraphs 12 through 15: Accepted in substance.

COPIES FURNISHED:

Dr. Imo John Akpaeti International Humanity Health

Services, Inc.

561 Northeast 79th Street Suite 233

Miami, Florida 33138

Gordon B. Scott, Esquire Senior Attorney

HRS Medicaid Office 1317 Winewood Boulevard

Building 6, Room 234

Tallahassee, Florida 32399-0700

Robert L. Powell, Agency Clerk Department of Health and

Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, Florida 32399-0700

John Slye, General Counsel Department of Health and

Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, Florida 32399-0700

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this recommended order. All agencies allow each party at least ten days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to 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: 92-003698

Orders for Case No: 92-003698