STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

AGENCY FOR HEALTH CARE ADMINISTRATION,

Petitioner,

vs.

SHIBOR GROUP, INC.,

Respondent.

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) Case No. 12-0860MPI

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RECOMMENDED ORDER

Pursuant to notice, a hearing was conducted in this case pursuant to sections 120.569 and 120.57(1), Florida Statutes,1/ before Cathy M. Sellers, an Administrative Law Judge of the Division of Administrative Hearings ("DOAH"), on June 22, 2012, by video teleconference at sites in Miami and Tallahassee,

Florida.

APPEARANCES

For Petitioner: Jamie L. Jackson, Esquire

Assistant General Counsel

Agency for Health Care Administration 2727 Mahan Drive, Building 3

Tallahassee, Florida 32399-5403

For Respondent: Abimbola Orukotan, pro se

Shibor Group, Inc. 5717 Mayo Street

Hollywood, Florida 33023

STATEMENT OF THE ISSUES

The issues in this case are: (1) Whether Respondent violated sections 409.913, Florida Statutes, as alleged in the Sanction Letter dated January 18, 2012, by failing to have documentation evidencing the receipt of Core Assurances training in six employees' files; failing to have documentation evidencing the receipt of required HIPAA training in one employee file; and failing to have documentation evidencing the receipt of Zero Tolerance training in one employee file2/; and

(2) if so, the penalty that should be imposed.

PRELIMINARY STATEMENT

On January 18, 2012, Petitioner issued a Sanction Letter charging Respondent with violating section 409.913 by failing to have certain required documentation in its employee and consumer files, and seeking to impose a fine pursuant to Florida Administrative Code Rule 59G-9.070. On February 10, 2012, Respondent timely filed a Petition for Formal Administrative Proceeding of Agency Notice of Action, challenging the violations alleged and fine sought in the Sanction Letter. On February 17, 2012, Petitioner entered an Order of Dismissal Without Prejudice, dismissing the petition as legally insufficient, and granting Respondent 15 days to file a sufficient request for hearing. Respondent timely filed an Amended Petition for Formal Administrative Proceeding of Agency

Notice of Action on March 1, 2012, and the matter was referred to the Division of Administrative Hearings for assignment of an Administrative Law Judge and conduct of a hearing pursuant to sections 120.569 and 120.57(1).

The final hearing initially was set for May 23 and May 24, 2012, in Fort Lauderdale, Florida; at Petitioner's request, the final hearing was rescheduled to June 22, 2012, and was held in Tallahassee and Miami, Florida. Petitioner's Exhibits 1 through

17 were admitted into evidence without objection, and Respondent's Exhibits 1 through 5 were admitted into evidence without objection. Petitioner presented the testimony of

Mr. Jesus Rossello and Ms. Gina Selwitz. Mr. Abimbola Orukotan testified on behalf of Respondent. At the conclusion of the hearing, Petitioner requested that the evidentiary record remain open to file supplemental exhibits; Respondent did not object and the request was granted. Petitioner filed Exhibits 18, 19, and 20 on June 29, 2012, and these exhibits were included in the evidentiary record.

The one-volume hearing Transcript was filed on July 11, 2012, and the parties initially were given ten days to file proposed recommended orders. Pursuant to an Order granting the parties' Joint Motion for Extension of Time to accommodate settlement discussions, the time for filing proposed recommended orders was extended to August 6, 2012. Petitioner timely filed

its Proposed Recommended Order on August 6, 2012. On August 8, 2012, Respondent filed a Motion for Extension of Time, seeking additional time, due to computer issues, in which to file its Proposed Recommended Order. On August 9, 2012, the undersigned issued an Order granting Respondent's request and extending the time until August 17, 2012, for Respondent to file its Proposed Recommended Order; the Order also granted Petitioner leave to file a Reply to Respondent's Proposed Recommended Order, since Respondent had the advantage of having reviewed Petitioner's Proposed Recommended Order before preparing its own.

Respondent's Proposed Recommended Order was late-filed on August 21, 2012. Petitioner moved to strike Respondent's Proposed Recommended Order, or, alternatively, to be granted additional time to file its Reply. The Motion to Strike was denied and Petitioner was granted an extension of time until August 30, 2012, to file its Reply. Petitioner timely filed Agency's Response to Respondent's Proposed Recommended Order on August 30, 2012. On September 13, 2012, Respondent filed a Motion to File Response/Respondent's Response to Agency's Proposed Recommended Order. On September 14, 2012, Petitioner filed Agency's Response to Respondent's Motion to File Response and Agency's Motion to Strike Respondent's Response. On September 17, 2012, the undersigned issued an Order Denying Respondent's Motion to File Response to Recommended Order and

Granting Motion to Strike Response. The parties' proposed recommended orders and Petitioner's Response to Respondent's Proposed Recommended Order were considered in preparing this Recommended Order.

FINDINGS OF FACT

1. The Parties

   
   

   1. Petitioner is the state agency responsible for administering the Florida Medicaid Program pursuant to chapter

      409. Petitioner's duties include operating 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, and to recover overpayments and impose sanctions as appropriate.

      § 409.913(1), Fla. Stat. To that end, Petitioner is authorized to conduct investigations of Medicaid providers to determine compliance with the Medicaid program. § 409.913(2), Fla. Stat.

      1. Respondent is an enrolled Medicaid provider providing home-based and community-based services to the developmentally disabled in a residential habilitation setting.3/ Respondent became an enrolled Medicaid provider in April 2004, and has been an enrolled Medicaid provider at all times pertinent to this proceeding.

         
         

2. Medicaid Provider Agreement

   
   

   1. To become enrolled as a Medicaid provider for the developmentally disabled in Florida, a provider applies with Petitioner and the Agency for Persons with Disabilities ("APD"). If the provider is approved for enrollment in the Medicaid program, it enters into a Medicaid Provider Agreement ("MPA") with Petitioner.

   2. The MPA establishes the terms and conditions of the provider's participation in the Medicaid program. A key condition is that the provider agrees to comply with all federal, state, and local laws, including rules, regulations, and statements of policy applicable to the Medicaid program, including the applicable Medicaid Handbooks. The Florida Medicaid Development Disabilities Waiver Services Coverage and Limitations Handbook, dated November 2010 ("DD Handbook"), and the Florida Medicaid Provider General Handbook, dated July 2008 ("General Handbook"), are applicable to this proceeding.

3. Petitioner's Inspection of Respondent's Facility

   
   

   1. On September 28, 2011, Ms. Gina Selwitz, an Inspector Specialist with Petitioner's Bureau of Medicaid Program Integrity, conducted an unannounced site inspection at Respondent's facility to review Respondent's employee records

      
      

      and recipient files for compliance with applicable Medicaid program requirements.

   2. As part of the inspection, Ms. Selwitz reviewed the records of six employees for documentation that they had received required training in a range of areas, including Core Competency, Health Insurance Portability and Accountability Act ("HIPAA") compliance, and Zero Tolerance Training, as required under state and federal law and rules and the General Handbook and DD Handbook.

   3. Ms. Selwitz determined that required documentation showing Core Assurances training was missing from six of Respondent's employees' files.

   4. She also determined that required documentation showing HIPAA training was missing from the file of one of Respondent's employees.

   5. Additionally, she determined that required documentation showing Zero Tolerance training was missing from the file of one of Respondent's employees.

4. Demand Letter Regarding Submittal of Missing Information

   
   

   1. While conducting the compliance inspection,

      
      

      Ms. Selwitz hand-delivered to Respondent a demand letter dated September 28, 2011. The demand letter stated in pertinent part:

      Pursuant to Section 409.913, Florida Statutes (F.S.), this is official notice that the Agency requests the documentation

      
      

      for services paid by the Florida Medicaid program to the above provider number. The Medicaid-related records to substantiate billing for the recipients identified on the enclosed printout are due within fifteen

      (15) calendar days of your receipt of this notification. In addition, please complete the attached questionnaire and submit it along with the copies of the Medicaid- related records. Please submit the documentation and the attached Certificate of Completeness of Records to the Agency within this timeframe, or other mutually agreed upon timeframe.

      
      

   2. The referenced questionnaire and printout were not attached to the demand letter. Ms. Selwitz provided Respondent a handwritten list of items that she determined were missing from its files and that needed to be submitted in response to the demand letter.

5. Respondent's Responses to Demand Letter and Sanction Letter

   
   

   1. On October 12, 2011, Respondent's representative, Mr. Orukotan, sent Ms. Selwitz electronic mail requesting that she send the editable Developmental Services Medicaid Provider

      Questionnaire form so Respondent could complete and submit it by October 14, 2011. After further electronic mail exchange,

      Ms. Selwitz provided the form to Mr. Orukotan on October 18, 2011.

   2. Respondent submitted the completed Questionnaire on November 3, 2011. In addition, Respondent submitted its Certificate of Completeness of Records and the other items that

      
      

      were requested in Ms. Selwitz's handwritten list provided with the demand letter.

   3. The handwritten list did not identify employee training documentation for Core Assurances, HIPAA, and Zero Tolerance as missing from Respondent's files; accordingly, Respondent did not provide that documentation as part of its November 3, 2011, submittal.

   4. Subsequently, Petitioner issued a Sanction Letter, dated January 18, 2012, which in part alleged that Respondent failed to have documentation in its files evidencing the receipt of employee training in Core Assurances, HIPAA, and Zero Tolerance.

   5. After receiving the Sanction Letter, Respondent submitted documentation of employee training in Core Assurances, HIPAA, and Zero Tolerance to demonstrate its compliance with the Medicaid program documentation requirements.

   6. Ms. Selwitz claimed that in addition to the handwritten list, she had given Respondent a typewritten list that identified other specific information, including the employee training documentation, that she determined missing from Respondent's files and needed to be provided pursuant to the demand letter. Respondent credibly testified that he never received this typewritten list of additional requested items.

      
      

   7. In support of Ms. Selwitz's testimony, Petitioner provided, as a supplemental exhibit, a typewritten form entitled "Residential Rehabilitation Provider." At the top of the form were three spaces to be filled in with the facility's name and the date and time of inspection; however, no information regarding Respondent's facility or its inspection was filled in the spaces, which were left blank. The form generally requested a range of items, including "[a]ll employee records (include Level II (FDLE and FBI) background check information)[4/]" but did not specifically request that Core Assurances, HIPAA, or Zero Tolerance employee training documentation be provided. The form further stated: "please provide the following records so that they may be reviewed on-site . . ."; This statement was followed by a list of items. However, Petitioner's facility inspection checklist and notes did not identify these items as missing from Respondent's files.5/

   8. Rather than comprising an additional list of information that Ms. Selwitz prepared and provided to Respondent to specifically identify missing information to be submitted pursuant to the demand letter, the Residential Rehabilitation Provider list instead appears to be a general form list that Petitioner provides before or at the time of facility inspection. Under any circumstances, the form's lack of specificity regarding employee training documentation for Core

      
      

      Assurances, HIPAA, and Zero Tolerance would not have given Respondent notice that Petitioner had determined such documentation was missing from its files and needed to be provided as part of its response to the demand letter.

   9. The credible evidence establishes that Respondent was not given this typewritten form or otherwise notified that Petitioner had determined that employee training documentation for Core Assurances, HIPAA, and Zero Tolerance was missing from its files and needed to be provided pursuant to the demand letter.

6. Respondent's Compliance With Record-Keeping Requirements

1. Section 409.913, Petitioner's rules, the DD and General Handbooks, and federal law require that providers keep and produce as required, specified employee records, including records demonstrating training in a range of areas, including Core Assurances, HIPAA, and Zero Tolerance.

2. Ms. Selwitz testified that if information determined to be missing from a provider's files during a compliance inspection is timely submitted pursuant to the demand letter, the provider is deemed to be in compliance with the applicable record-keeping and document production requirements in state and federal Medicaid law.

3. Here, Petitioner did not notify Respondent that it had determined that certain employee training documentation was

   
   

   missing from its files. Thus, Respondent was not given the opportunity to establish compliance with the record-keeping and document production requirements by timely submitting this documentation in accordance with Petitioner's demand letter.

   Mr. Orukotan testified that Respondent kept the requested documentation in its employee files and would have provided it, had Petitioner notified Respondent that its inspection determined the documentation was missing. His testimony, which is bolstered by the fact that Respondent did timely submit all information pursuant to the handwritten list provided with the demand letter, is deemed credible and persuasive.

4. As previously noted, Respondent submitted the employee training documentation upon being informed, pursuant to the Sanction Letter, that Petitioner had determined such documentation was missing from its files.6/

5. Under the present circumstances——where Petitioner failed to afford Respondent an opportunity to demonstrate compliance by timely responding to its demand letter, and where Respondent, when informed of the deficiencies, submitted the requested documentation——the undersigned determines, as a matter of ultimate fact, that Petitioner failed to demonstrate that Respondent violated chapter 409, Petitioner's applicable rules, the DD Handbook, the General Handbook, and federal law, as charged in the January 18, 2012, Sanction Letter.7/

   
   

   CONCLUSIONS OF LAW

   
   

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

7. In this proceeding, Petitioner alleges that Respondent violated federal and state Medicaid laws, rules, and policies, and seeks to impose administrative fines for these violations. To prevail, Petitioner must prove the alleged violations by clear and convincing evidence. Dep't of Banking & Fin., Div. of Secs. & Investor Prot. v. Osborne Stern, Inc., 670 So. 2d 932, 935 (Fla. 1996); Ferris v. Turlington, 510 So. 2d 292, 294 (Fla. 1987). Clear and convincing evidence requires that:

   the evidence must be found to be credible; the facts to which the witnesses testify must be distinctly remembered; the testimony must be precise and explicit and the witnesses must be lacking in confusion as to the facts in issue. The evidence must be of such weight that it produces in the mind of the trier of fact a firm belief or conviction, without hesitancy, as to the truth of the allegations sought to be established.

   
   

   Slomowitz v. Walker, 429 So. 2d 797, 800 (Fla. 4th DCA 1983).

   
   

8. Section 409.913(9) provides in pertinent part:

   
   

   A Medicaid provider shall retain medical, professional, financial, and business records pertaining to services and goods furnished to a Medicaid recipient and billed to Medicaid for a period of 5 years after the date of furnishing such services or goods. The agency may investigate, review, or analyze such records, which must be made available during normal business hours....

   The provider is responsible for furnishing to the agency, and keeping the agency informed of the location of, the provider's Medicaid-related records.

   
   

9. Section 409.913(15), in pertinent part, authorizes Petitioner to seek remedies provided by law if:

   1. The provider has failed to make available or has refused access to Medicaid- related records to an auditor, investigator, or other authorized employee or agent of the agency, the Attorney General, a state attorney, or the Federal Government;

   2. The provider has not furnished or has failed to make available such Medicaid- related records as the agency has found necessary to determine whether Medicaid payments are or were due and the amounts thereof;

      * * *

      (e) The provider is not in compliance with provisions of Medicaid provider publications that have been adopted by reference as rules in the Florida Administrative Code; with provisions of state or federal laws, rules, or regulations; with provisions of the provider agreement between the agency and the provider; or with certifications found on claim forms or on transmittal forms for electronically submitted claims that are submitted by the provider or authorized representative, as such provisions apply to the Medicaid program.

      
      

10. Section 409.913(16)(c) authorizes Petitioner to impose a fine of up to $5,000 for each violation described in section 409.913(15).

11. Florida Administrative Code Rule 59G-9.070(3)(q) defines a "violation" as any "omission or act" contrary to the Medicaid laws. Rule 59G-9.070(7)(e) provides a fine of $1000 per violation, if a first offense, for a failure to comply with Medicaid laws. Rule 59G-9.070(3)(h) defines an "[o]ffense" as all of the violations contained in an audit report. Rule 59G- 9.070(4)(d) limits the cumulative fine to $20,000 resulting from a case that involves only "violations" that constitute a first offense and does not involve an alleged overpayment.

12. Florida Administrative Code Rule 59G-5.020(1) incorporates the General Handbook and requires compliance by all enrolled Medicaid providers. The General Handbook, page 2-55, requires providers to retain all business records as defined in Florida Administrative Code Rule 59G-1.010(30). Rule 59G- 1.010(30) defines "business records" in pertinent part as:

    documents related to the administrative or commercial activities of a provider, as contrasted with medical or professional activities. Business records made available to Medicaid must be dated and legible.

    Business records include, as applicable... personnel...documents, all administrative or commercial records that are customarily prepared or acquired and are customarily retained by the provider, and administrative or commercial records that are required by

    
    

    statute or rule to be prepared or acquired and retained by the provider. Records may be on paper, magnetic material, film or other media.

    
    

13. Florida Administrative Code Rule 59G-1.010(154) defines "Medicaid-related records" as:

    records that relate to the provider's business or profession and to a Medicaid recipient. Medicaid-related records include records related to non-Medicaid customers, clients, or patients, to the extent that the documentation is shown by the department to be necessary to determine a provider's entitlement to payments under the Medicaid program.

    
    

14. The DD Waiver Handbook, Appendix A, page A-1, requires Petitioner and APD to establish performance standards for all contracted recipient services and service provision quality in the delivery of contracted Medicaid waiver services. The terms and conditions by which developmentally disabled services providers are bound are based, in part, on the Core Assurances. The DD Waiver Handbook, Appendix A, page A-2, defines the Core Assurances as the "document that specifies administrative and programmatic requirements for the Developmental Disabilities Home and Community-Based Services Waiver and Developmental Disability Program waiver providers." The DD Waiver Handbook, Appendix A, page A-10, requires providers and their employees to receive training in Core Assurances topics, to document this

    
    

    training, and to keep proof of training on file and accessible available for compliance monitoring and review.

15. The DD Waiver Handbook, page 1-14, in the section entitled "Provider Responsibility Regarding HIPAA Requirements," states that the Florida Medicaid program has implemented all of the requirements contained in HIPAA. Federal regulations implementing HIPAA require entities who deliver health-related services to train all employees regarding protecting health information, and further require that proof of the training be maintained. See 42 C.F.R. § 164.530(2)(b)1; 42 C.F.R. § 164.530(2)(C)ii.

16. The DD Waiver Handbook, Appendix A, page A-10, section 2.1(H), requires Medicaid direct service providers to complete the APD-developed Zero Tolerance Training course before providing direct care services, and to complete further training at least once every three years. Providers and their employees must receive training in Zero Tolerance, document this training, and keep proof of training on file and accessible available for compliance monitoring and review.

17. The MPA states in section (5), entitled "Provider Responsibilities," that the Medicaid provider must: "(b) Keep, maintain, and make available in a systematic and orderly manner all medical and Medicaid-related records as AHCA requires for a period of at least five (5) years." Additionally, section (3)

    
    

    of the MPA, entitled "Compliance," requires Medicaid providers to comply with local, state, and federal laws, rules, regulations, and policy statements applicable to the Medicaid program, including the Medicaid Provider handbooks issued by Petitioner.

18. For the reasons set forth in the Findings of Fact, Petitioner failed to demonstrate, by clear and convincing evidence, that Respondent violated these statutes, rules, regulations, Medicaid Handbook provisions, and MPA provisions. Accordingly, Petitioner failed to demonstrate, by clear and convincing evidence, that Respondent violated federal and state Medicaid laws as charged in the Sanction Letter dated January 18, 2012.

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 determining that Respondent did not violate federal and state Medicaid laws as charged in the

January 18, 2012 Sanction Letter.

DONE AND ENTERED this 2nd day of October, 2012, in Tallahassee, Leon County, Florida.

S

CATHY M. SELLERS

Administrative Law Judge

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 2nd day of October, 2012.

ENDNOTES

1/ All references are to 2011 Florida Statutes, which were in effect at the time the conduct at issue in this proceeding is alleged to have occurred.

2/ In its Proposed Recommended Order, Petitioner stated that it no longer is pursuing the other violations charged in the Administrative Complaint, even though those charges were tried in the final hearing. Accordingly, this Recommended Order does not make findings of fact or conclusions of law or provide a recommendation regarding those charges, which Petitioner has abandoned.

3/ Respondent's Florida Medicaid provider identification number is 141600699.

4/ This omission is noteworthy, given that Petitioner's inspection checklist and other inspection notes did not identify employee enforcement background check information as missing from the employees' files; yet the Residential Habilitation

Provider form list identified that information as needing to be provided.

5/ See Petitioner's Exhibit 20 (emphasis added).

6/ In its Proposed Recommended Order, Petitioner proposes to sanction Respondent for alleged substantive deficiencies in employee training based on the documentation that Respondent ultimately provided once it was placed on notice, by the Sanction Letter, of alleged employee training documentation deficiencies. However, the Sanction Letter did not charge Respondent with substantive deficiencies in the training itself, and Petitioner did not amend its Sanction Letter to include that alleged violation——which it could have done once it received Respondent's employee training documentation submitted in response to the Sanction Letter. It is well-established that an agency cannot take disciplinary action against a licensee based on conduct not alleged in an administrative complaint or comparable pleading. Cottrill v. Dep't of Ins., 685 So. 2d 1371, 1372 (Fla. 1st DCA 1996)("Predicating disciplinary action against a licensee on conduct not alleged in an administrative complaint or comparable pleading violates the Administrative Procedure Act."). Moreover, under any circumstances, Ms.

Selwitz's testimony in this regard was non-specific; it was neither precise nor explicit with respect to specific employees or specific training deficiencies, which is required for Petitioner to meet the "clear and convincing evidence" standard necessary to sanction Respondent in this proceeding.

7/ See Langston v. Jamerson, 653 So. 2d 489, 491 (Fla. 1st DCA 1995)(whether conduct violates a statute or rule is a question of ultimate fact). See also Gross v. Dep't of Health, 819 So. 2d 997, 1003 (Fla. 5th DCA 2002); Bush v. Brogan, 725 So. 2d

1237, 1240 (Fla. 2d DCA 1999).

COPIES FURNISHED

Jamie Lauren Jackson, Esquire Mail Stop 3

2727 Mahan Drive

Tallahassee, Florida 32308 jamie.jackson@ahca.myflorida.com

Sherifat Orukotan Shibor Group, Inc. 5717 Mayo Street

Hollywood, Florida 33023

Abimbola Orukotan, Manager Shibor Group, Inc.

5717 Mayo Street

Hollywood, Florida 33023 shiborgroup@aol.com

Richard J. Shoop, Agency Clerk

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

Tallahassee, Florida 32308

Stuart Williams, General Counsel Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3

Tallahassee, Florida 32308

Elizabeth Dudek, Secretary

Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 1

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: 12-000860MPI

Orders for Case No: 12-000860MPI