STATE OF FLORIDA

AGENCY FOR HEALTH CARE ADMINISTRATION

STATE OF FLORIDA, AGENCY FOR HEALTH CARE ADMINISTRATION,

CASE NO.: 94-3537

Petitioner, PROGRAM INTEGRITY NO.: 94 -0025000-G

vs. RENDITION NO.: AHCA-97-411-FOF-MDO SANTA ROSA MEDICAL CENTER,

Respondent.

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FINAL ORDER

This cause came on before me for the purpose of issuing a final agency order. The Administrative Law Judge assigned by the Division of Administrative Hearings (DOAH) in the above- styled case submitted Recommended Order to the Agency for Health Care Administration (AHCA). The Recommended Order entered January 27, 1997, by Administrative Law Judge Robert E. Meale is incorporated by reference.

RULING ON EXCEPTIONS

The Petitioner, a provider of physician services, challenges the agency's determination that it is obligated to refund overpayments received for services provided to Medicaid covered patients. Also at issue are whether a $5,000 fine should be imposed and whether the Petitioner's provider status should be terminated for five years. The overpayment determination is based on an audit of randomly selected patient files and statistical extrapolation to determine a dollar amount for the audited time period. Per agreement of the parties the hearing process has been bifurcated with the audit findings from the selected files to be resolved in the first phase of the proceedings. If requested by the Petitioner, the second phase will address the reliability of the statistical methodology, calculation of the total amount of the overpayment liability, and sanctions to be imposed. With some adjustments, the hearing officer concurs with the agency's audit of the selected files.

This Order concludes the first phase of the proceedings by adopting the Recommended Order.

In timely filed exceptions, the Petitioner requests that this case be remanded to the Division of Administrative Hearings. The Petitioner alleges that the ALJ failed to address certain issues. The ALJ is no longer required to explicitly address proposed findings. Lifecare Centers vs. Sawgrass Care Cenfel, 683 So. 2d 6(19 (Fla. 1st DCA 1996). The Petitioner has asserted the issues before the ALJ and has not prevailed. The ALJ has implicitly rejected the positions taken by the Petitioner on the issues. I concur with the ALJ. The exceptions are denied.

FINDINGS OF FACT

The agency hereby adopts and incorporates by reference the findings of fact set forth in the Recommended Order.

CONCLUSIONS OF LAW

The agency hereby adopts and incorporates by reference the conclusions of law set forth in the Recommended Order. A brief clarification is made regarding the standard of proof. To be entitled to a refund of Medicaid payments, the agency must show by a preponderance of the evidence that the provider was overpaid. See Southpointe Pharmacy vs. Department of Health and Rehabilitative Services, 596 So. 2d 106, 109 (Fla. 1st DCA 1992) Richard vs. Triester 409 So. 2d 111 (Fla. 3rd DCA 1982). The Supreme Court has recently held that the "clear and convincing" standard is applicable when an executive agency seeks to impose an administrative fine. Department of Banking vs. Osborne, 670 So2d 932 (Fla. 1996). Thus, to support a fine or other penal sanctions, the factual basis for violations of rule or statute must be established by "clear and convincing" evidence.

Based upon the foregoing, it is

ADJUDGED, that audit adjustments and overpayments confirmed by the ALJ are now final. The issues to be resolved at the second phase of this proceeding are the statistical extrapolation and penalties. This order concludes the first phase of this proceeding.

DONE and ORDERED this 14th day of April, 1997, in Tallahassee, Florida.

STATE OF FLORIDA, AGENCY FOR HEALTH CARE ADMINISTRATION

Douglas M. Cook, Director

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

Copies furnished to:

Karel Baarslag, Esquire Senior Attorney, Agency for

Health Care Administration 2727 Mahan Drive, Suite 3431 Fort Knox Building III Tallahassee, Florida 32308-5403

Anthony C. Vitale, Esquire 799 Brickell Plaza

Suite 700

Miami, Florida 33131

Robert E. Meale Administrative Law Judge DOAH, The DeSoto Building 1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished to the above named addresses by

U.S. Mail this 15th day of April, 1997.

R.S. Power, Agency Clerk State of Florida, Agency for

Health Care Administration 2727 Mahan Drive, Suite 3431 Fort Knox Building III Tallahassee, Florida 32308-5403

(904) 922-3808

Docket for Case No: 94-003537

Orders for Case No: 94-003537