STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

AGENCY FOR HEALTH CARE ADMINISTRATION,

Petitioner,

vs.

IZQUIERDO HOME CARE, INC.,

Respondent.

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) Case No. 12-2189MPI

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RECOMMENDED ORDER

On August 20, 2012, Robert E. Meale, Administrative Law Judge of the Division of Administrative Hearings, conducted the final hearing by videoconference in Tallahassee and Lauderdale Lakes, Florida.

APPEARANCES

Petitioner: Jeffries H. Duvall, Esquire

Office of the General Counsel

Agency for Health Care Administration Fort Knox Executive Center, Building 3 2727 Mahan Drive, Mail Station 3

Tallahassee, Florida 32308-5403

Respondent: Julia Arrendell, Qualified Representative 13899 Biscayne Boulevard

North Miami Beach, Florida 33181 STATEMENT OF THE ISSUE

The issue is whether Respondent failed to maintain a service plan for each of four residents, in violation of the Florida Medicaid Assistive Care Services Coverage and

Limitations Handbook. If so, an additional issue is the sanctions that should be imposed.

PRELIMINARY STATEMENT

By letter dated April 13, 2012, Petitioner advised Respondent that it had committed four violations of Medicaid policy. As the ground for liability, the letter states in its entirety: "Four (4) of four (4) residents' files did not contain service plans." The letter states that, pursuant to Florida Administrative Code Rule 59G-9.070, Petitioner intended to impose a fine of $4000.

By letter dated May 27, 2012, Respondent requested a formal hearing.

At the hearing, Petitioner called one witness and offered into evidence 11 exhibits: Petitioner Exhibits A-K. Respondent called no witnesses and offered into evidence no exhibits.

The court reporter filed the transcript on September 6, 2012. The parties filed proposed findings by September 18, 2012.

FINDINGS OF FACT

1. Respondent owns and operates an assisted living facility known as Izquierdo Home Care I. At all material times, Respondent was enrolled in the Medicaid program as a provider authorized to supply assistive living services to Medicaid recipients at Izquierdo Home Care I.

   
   

2. At all material times, Respondent was subject to the Florida Medicaid Assistive Care Services Coverage and Limitations Handbook. The handbook imposed upon Respondent the duty to develop a service plan for each Medicaid recipient not less often than annually.

3. On March 27, 2012, Petitioner's inspector conducted a site visit of Izquierdo Home Care I. At the time of the site visit, the facility had six beds, but only four residents. According to a letter from Petitioner dated March 27, 2012, and delivered to Respondent's representative at the time of the inspection, the following four residents were Medicaid recipients: E. C., R. R., J. H., and A. R. However, according to the questionnaire completed by Respondent's representative at the time of the inspection, only two of the four current residents were Medicaid recipients, although the questionnaire does not identify these residents.

4. In fact, A. R. had been discharged from Izquierdo Home Care I in September 2011. At the hearing, Petitioner's inspector confirmed that Respondent had not billed Medicaid for services for A. R. after the date of discharge.

5. The second resident whose Medicaid status is in question was identified, in Respondent's proposed recommended order, as E. C. Respondent contends in its proposed recommended

   
   

   order that E. C. was not receiving Medicaid at the time of the inspection.

6. If the Proposed Recommended Order were the only notice to Petitioner of Respondent's claim that a second resident was not a Medicaid recipient, the Administrative Law Judge would ignore this assertion because it is not evidence, and, as a defense, it was raised too late. However, the questionnaire, which was admitted as one of Petitioner's exhibits, is evidence that two of the four residents were not receiving Medicaid at the time of the inspection.

7. In assessing the evidentiary record in terms of whether it establishes a third Medicaid recipient, the Administrative Law Judge notes: a) Petitioner has alleged a violation concerning A. R., even though A. R. was no longer a Medicaid recipient at the time of the inspection; b) at hearing, Petitioner's inspector was readily able to read the "query" to confirm that Respondent had not submitted a Medicaid billing on account of A. R. after September 2011 (Transcript 49); and c) as discussed in the Conclusions of Law, Petitioner bears the burden of proof by clear and convincing evidence. Under these circumstances, Petitioner has proved only that two residents of the facility were Medicaid recipients at the time of the inspection.

   
   

8. There is no dispute that current service plans for two Medicaid recipients did not exist at the time of the March 2012

   inspection.

   
   

   CONCLUSIONS OF LAW

   
   

9. The Division of Administrative Hearings has jurisdiction over the subject matter. §§ 120.569, 120.57(1), and 409.913(31), Fla. Stat.

10. Florida Administrative Code Rule 59G-4.025(2) requires Medicaid providers of assistive care services to comply with the Florida Medicaid Assistive Care Services Coverage and Limitations Handbook.

11. As Petitioner acknowledges in its Proposed Recommended Order, it has the burden of proof. Compare South Medical

    Services, Inc. v. Agency for Health Care Admin., 653 So. 2d 440,

    
    

    441 (Fla. 3d DCA 1995); Southpoint Pharmacy v. Dep't of Health & Rehabilitative Services, 596 So. 2d 106, 109 (Fla. 1st DCA 1992).

12. Because Petitioner is seeking to impose a fine, the standard of proof is clear and convincing evidence. Dep't of Banking & Finance v. Osborne Stern, Inc., 670 So. 2d 932, 935 (Fla. 1996).

13. As stated above, Petitioner has proved by clear and convincing evidence only that two of the residents of Respondent's facility were Medicaid recipients at the time of

    
    

    the inspection. Petitioner has proved that Respondent had failed to develop current resident service plans for each of these two residents.

14. In its Proposed Recommended Order, Petitioner tried to predicate liability as to A. R. based on Respondent's failure to maintain Medicaid records for the required period of time. However, as the Administrative Law Judge ruled at the hearing, Petitioner never alleged this as a basis for liability, and the Administrative Law Judge declined to allow Petitioner to amend its pleadings at the hearing. See Trevisani v. Dep't of Health, 908 So. 2d 1108 (Fla. 1st DCA 2005).

15. Rule 59G-9.070(7)(e) provides:

    
    

    SANCTIONS: In addition to the recoupment of the overpayment, if any, the Agency will impose sanctions as outlined in this subsection. Except when the Secretary of the Agency determines not to impose a sanction, pursuant to Section 409.913(16)(j), F.S., sanctions shall be imposed as follows:

    (e) For failure to comply with the provisions of the Medicaid laws: For a first offense, $1,000 fine per claim found to be in violation. For a second offense,

    $2,500 fine per claim found to be in violation. For a third or subsequent offense, $5,000 fine per claim found to be in violation. [Section 409.913(15)(e), F.S.][.]

    
    

16. Absent evidence of past offenses, the rule calls for a fine of $1000 per violation. Petitioner has proved two violations, so the fine is $2000.

RECOMMENDATION

It is RECOMMENDED that the Agency for Health Care Administration enter a final order imposing a fine of $2000 against Respondent.

DONE AND ENTERED this 26th day of October, 2012, in Tallahassee, Leon County, Florida.

S

ROBERT E. MEALE

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 26th day of October, 2012.

COPIES FURNISHED:

Jeffries H. Duvall, Esquire Office of the General Counsel

Agency for Health Care Administration Fort Knox Executive Center, Building 3 2727 Mahan Drive, Mail Station 3

Tallahassee, Florida 32308-5403

Julia Arrendell, Qualified Representative 13899 Biscayne Boulevard

North Miami Beach, Florida 33181

Elizabeth Dudek, Secretary Office of the General Counsel

Agency for Health Care Administration Fort Knox Executive Center, Building 3 2727 Mahan Drive, Mail Station 3

Tallahassee, Florida 32308-5403

Stuart Williams, General Counsel Office of the General Counsel

Agency for Health Care Administration Fort Knox Executive Center, Building 3 2727 Mahan Drive, Mail Station 3

Tallahassee, Florida 32308-5403

Richard J. Shoop, Agency Clerk Office of the General Counsel

Agency for Health Care Administration Fort Knox Executive Center, Building 3 2727 Mahan Drive, Mail Station 3

Tallahassee, Florida 32308-5403

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: 12-002189MPI

Orders for Case No: 12-002189MPI