STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
AGENCY FOR HEALTH CARE ADMINISTRATION,
Petitioner,
vs.
LEE MEMORIAL HEALTH SYSTEM, d/b/a LEE MEMORIAL HOSPITAL,
Respondent.
/
Case Nos. 14-4171MPI
15-3271MPI
RECOMMENDED ORDER
Pursuant to notice, an administrative hearing was conducted in this case on January 26, 2016, in Tallahassee, Florida, before Lynne A. Quimby-Pennock, an Administrative Law Judge with the Division of Administrative Hearings (DOAH).
APPEARANCES
For Petitioner: Daniel Elden Nordby, Esquire
Shutts and Bowen LLP Suite 804
215 South Monroe Street Tallahassee, Florida 32301
For Respondent: Joanne Barbara Erde, Esquire
Duane Morris LLP Suite 3400
200 South Biscayne Boulevard Miami, Florida 33131
STATEMENT OF THE ISSUE
Whether the Agency for Health Care Administration (Agency or AHCA) is entitled to recover certain Medicaid funds paid to
Lee Memorial Health System, d/b/a Lee Memorial Hospital (Respondent or Lee Memorial), for services provided to undocumented aliens: between January 1 through December 31, 2006, as alleged in AHCA’s Amended Final Audit Report, dated July 25, 2014 (DOAH Case 14-4171); and January 1 through December 31, 2007, as alleged in AHCA’s Final Audit Report, dated March 12, 2015 (DOAH Case 15-3271).
PRELIMINARY STATEMENT
This is a Medicaid overpayment recoupment case based upon alleged overpayments made to Respondent for 29 claims. There are two audit periods: January 1, 2006, through December 31, 2007; and January 1 through December 31, 2007. Petitioner maintains that Medicaid payments for medical services rendered to aliens may only be paid for services rendered during the period of emergency for the patient. The services may have been medically necessary or appropriate treatment; however, Medicaid is not responsible for the treatment if the emergency condition has been alleviated.
Respondent argues that all treatment rendered was medically necessary, was approved for eligible aliens, and has been untimely challenged. Respondent avers that to use hindsight as the standard for review is inappropriate.
DOAH CASE NO. 14-4171
On August 14, 2012, the Agency issued to Lee Memorial a Final Audit Report (FAR) following the Agency’s review of claims for Medicaid reimbursement for services rendered by Lee Memorial between January 1 and December 31, 2006. Lee Memorial submitted a petition for hearing to AHCA and the matter was referred to DOAH on September 10, 2012. On a joint request, the DOAH matter was closed and jurisdiction was relinquished to AHCA on
January 23, 2013. The Agency issued an Amended Final Audit Report (AFAR) to Respondent on July 25, 2014. At the time the AFAR was issued, jurisdiction of the matter remained with the Agency.1/ The AFAR sought reimbursement of: $62,567.992/ in alleged Medicaid overpayments; $2,500 in an administrative fine; and $2,062.04 in costs. Following receipt of the AFAR, Respondent again requested a hearing, and the matter was referred to DOAH. This case was originally scheduled to be heard in December 2014.
DOAH CASE NO. 15-3271
On March 12, 2015, the Agency issued to Lee Memorial a FAR following the Agency’s review of claims for Medicaid reimbursement for services rendered between January 1 and December 31, 2007. The FAR sought reimbursement of:
$102,712.15 in alleged Medicaid overpayments; $2,500 in an administrative fine; and $3,528.41 in costs. Respondent
requested a hearing, and the matter was referred to DOAH. This case was originally scheduled to be heard in November 2015.
Respondent’s Unopposed Motion to Consolidate the two DOAH cases was granted on October 22, 2015. On December 22, 2015, Respondent’s Motion to File a Consolidated Amended Petition (motion) was filed. This motion requested the opportunity to set forth additional legal issues. The motion was denied.
Prior to the hearing, the parties submitted a Joint Prehearing Stipulation. To the extent appropriate, the stipulations appear below.
At the final hearing, Tracy Ryder, a registered nurse (RN) consultant and investigator in the Agency’s Bureau of Medicaid Program Integrity, was called to testify. The Agency offered Exhibits 1 through 67, which were received into evidence without objection. Respondent offered Exhibits 1 through 46, which were received into evidence without objection. Both sets of exhibits included, among other documents, the depositions of physician peer reviewers.
At the close of the hearing, Respondent requested 30 days from the filing of the transcript to file proposed recommended orders (PROs). The request was granted. Following the hearing, each party designated specific admitted deposition transcripts and prior hearing transcripts for review.
The one-volume Transcript was filed on February 16, 2016. The parties timely filed PROs on March 16, 2016,3/ and each PRO has been duly considered by the undersigned in the preparation of this Recommended Order.
Unless otherwise indicated, citations to the Florida Statutes refer to Florida Statutes 2015, except that all references to statutes or rules relating to Medicaid eligibility or coverage are to the versions that were in effect on the dates of service giving rise to the alleged overpayments.
FINDINGS OF FACT
THE PARTICIPANTS
Lee Memorial was, at all relevant times, an enrolled Medicaid provider authorized to receive reimbursement for covered goods and services provided to Medicaid recipients. As an enrolled provider, Lee Memorial’s participation in the Florida Medicaid Program is subject to the terms of the Medicaid Provider Agreement. The Florida Medicaid Program requires compliance with all state and federal laws governing the Medicaid program, including the state and federal laws limiting Medicaid payments for services provided to aliens.
As indicated, the Agency is the single state agency responsible for administering or supervising the administration of the Florida Medicaid Program (Medicaid). § 409.901(15), Fla. Stat.
PRELIMINARY: FLORIDA MEDICAID PROGRAM
Section 409.901(16), Florida Statutes, provides that the Medicaid program is “authorized under Title XIX of the federal Social Security Act which provides for payments for medical items or services, or both, on behalf of any person who is determined by the Department of Children and Families, or, for Supplemental Security Income, by the Social Security Administration, to be eligible on the date of service for Medicaid assistance.” The Medicaid program is jointly funded by the federal government and the individual states that have elected to participate in the program, of which Florida is one. Federal payments to the states for a portion of the cost of Medicaid are referred to as federal financial participation (FFP).
AHCA administers the Medicaid program. AHCA is authorized to make payments to Medicaid providers for medical assistance and related services under Title XIX of the Social Security Act. However, in order to receive Medicaid assistance, the Department of Children and Families (DCF) must determine the eligibility of applicants for that assistance.
Pursuant to section 409.902(1), DCF has adopted Florida Administrative Code Rule 65A-1.715 which addresses Medicaid eligibility for aliens. This rule provides:
Aliens who would be eligible for Medicaid but for their immigration status are eligible only for emergency medical services. Section 409.901(10) F.S., defines emergency medical conditions.
The Utilization Review Committee (URC) or medical provider will determine if the medical condition warrants emergency medical services and, if so, the projected duration of the emergency medical condition. The projected duration of the emergency medical condition will be the eligibility period provided that all other criteria are continuously satisfied.
Emergency services are limited to 30 consecutive days without prior approval. For continued coverage beginning with the 31st day prior authorization must be obtained from the Agency for Health Care Administration (Medicaid Program Office). [Emphasis added].
The eligibility period for alien recipients is also described in rule 65A-1.702, which states:
(2) Date of Eligibility. The date eligibility for Medicaid begins. This was formerly called the date of entitlement. The date of eligibility includes the three months immediately preceding the month of application (called the retroactive period).
Eligibility for Medicaid begins the first day of a month if an individual was eligible any time during the month, with the following exceptions:
* * *
(c) Coverage for individuals eligible for the Emergency Medicaid for Aliens program begins the first day of a covered emergency and ends the day following the last day of the emergency medical situation.
[Emphasis added].
DCF is performing an administrative function, solely to determine if the alien is eligible to receive medical assistance. DCF does not determine the duration of the emergency medical condition. DCF does not make a clinical medical determination regarding any patient because it does not have medical professionals to verify the information received. DCF has the dates of eligibility, but AHCA determines which bills are paid. AHCA relies on licensed medical physicians to determine the duration of the emergency medical services.
Undocumented aliens do not qualify to receive full Medicaid benefits. As detailed in Agency handbooks, the aid is limited to the treatment of an emergency medical condition up to the point that condition has been alleviated.
According to section 409.902(2), Medicaid eligibility is restricted to U.S. citizens and lawfully admitted noncitizens who meet the criteria provided in section 414.095(3), Florida Statute.4/ The criteria mean that undocumented or illegal aliens are generally not eligible for Medicaid assistance. All of the claims in dispute in this case involve payments on behalf of undocumented noncitizens who will be referred to herein as "aliens."
As an exception to the general rule, episodic eligibility is available to an alien who is either pregnant or seeking "services [which] are necessary to treat an emergency
medical condition." § 409.902(2)(b), Fla. Stat. "The eligibility of . . . a recipient [who meets all other requirements for Medicaid eligibility except citizenship and who is in need of emergency medical services] is limited to the period of the emergency, in accordance with federal
regulations." § 409.904(4), Fla. Stat. (emphasis added).
An alien is eligible for medical assistance only if he has an "emergency medical condition" requiring "emergency medical services"--and then only for those services "necessary to treat [the] emergency medical condition" that are provided during the "period of the emergency," the conclusion of which terminates the alien's eligibility.
The term "emergency medical condition" (EMC) is defined in section 409.901(10)(a) as:
A medical condition manifesting itself by acute symptoms of sufficient severity, which may include severe pain or other acute symptoms, such that the absence of immediate medical attention could reasonably be expected to result in any of the following:
Serious jeopardy to the health of a patient, including a pregnant woman or a fetus.
Serious impairment to bodily functions.
Serious dysfunction of any bodily organ or part.
Section 409.901(11) provides the following definition of “emergency services and care”:
[M]edical screening, examination, and evaluation by a physician, or, to the extent permitted by applicable laws, by other appropriate personnel under the supervision of a physician, to determine whether an emergency medical condition exists and, if it does, the care, treatment, or surgery for a covered service by a physician which is necessary to relieve or eliminate the emergency medical condition, within the service capability of a hospital.
Section 409.904(4) provides:
A low-income person who meets all other requirements for Medicaid eligibility except citizenship and who is in need of emergency medical services. The eligibility of such a recipient is limited to the period of the emergency, in accordance with federal regulations.
Section 409.905(5) has, since 2005, consistently provided that AHCA shall pay for “all covered services provided for the medical care and treatment of a recipient” admitted as an inpatient by a licensed physician to a licensed hospital. However, covered payments can be determined by the patients’ physical condition.
AHCA is authorized to “conduct or cause to be conducted . . . reviews, investigation, analyses, audits, or any combination thereof, to determine possible fraud, abuse, overpayment, . . . in the Medicaid program and shall report the findings of any overpayments in audit reports as appropriate
. . . . Medical necessity determination requires that service be consistent with symptoms or confirmed diagnosis of illness or
injury under treatment and not in excess of the patient’s needs.” § 409.913(2), Fla. Stat.
Section 409.913(1)(e) defines “overpayment” to mean “any amount that is not authorized to be paid by the Medicaid program whether paid as a result of inaccurate or improper cost reporting, improper claiming, unacceptable practices, fraud, abuse, or mistake.”
As found in section 409.913(1)(a)1, “abuse” means “[p]rovider practices that are inconsistent with generally accepted business or medical practices and that result in an unnecessary cost to the Medicaid program or in reimbursement for goods or services that are not medically necessary or that fail to meet professionally recognized standards of health care.”
Further, under section 409.913(5), a Medicaid provider “is subject to having goods and services that are paid for by the Medicaid program reviewed by an appropriate peer-review organization designated by the agency. The written findings of the applicable peer-review organization are admissible in any court or administrative proceeding as evidence of medical necessity or the lack thereof.”
AHCA has authority to “adopt any rules necessary to comply with or administer ss. 409.901-409.920 and all rules necessary to comply with federal requirements.” § 409.919, Fla. Stat.
Florida Administrative Code Rule 59G-4.160 provides that all enrolled hospital providers must comply with the provisions of the Florida Medicaid Hospital Services Coverage and Limitations Handbook. As found on page 2 through 7 of this handbook:
The Medicaid Hospital Services Program reimburses for emergency services provided to aliens who meet all Medicaid eligibility requirements except for citizenship or alien status.
Eligibility can be authorized only for the duration of the emergency. Medicaid will not pay for continuous or episodic services after the emergency has been alleviated. Dialysis is considered an emergency service. [Emphasis added].
Rule 59G-5.020 provided for the use of the Florida Medicaid Provider Handbook. On page 3 through 22 under the heading, “Emergency: Medicaid for Aliens,” it provides:
Eligibility can be authorized only for the duration of the emergency. Medicaid will not pay for continuous or episodic services after the emergency has been alleviated.
All claims must be accompanied by documentation of the emergency nature of the service. Exceptions are labor, delivery, and dialysis services. These are considered emergencies and are payable without documentation when the emergency indicator is entered on the claim form. [Emphasis added].
CURRENT DEVELOPMENTS
In 2009, the Department of Health and Human Services, Centers for Medicare and Medicaid Services (CMS), conducted a “Review of Florida’s Medicaid Payments for Emergency Services to Undocumented Aliens” (review). The review was directed to AHCA for the purpose of determining “whether AHCA’s billing for emergency medical services to undocumented aliens in the State of Florida complies with applicable Federal statutes and CMS’ regulations.” One of the review’s findings was that “AHCA is claiming FFP for emergency medical services to undocumented aliens provided beyond what Federal statutes and regulations define to be an emergency.” CMS recommended that “AHCA should review all emergency services for undocumented alien amounts claimed for FFP during Federal Fiscal Years 2005, 2006, and 2007 and re-determine allowability of these claims utilizing the required Federal criteria” and that AHCA “promptly implement the necessary system edits so that services provided as emergent care [could] be differentiated from services provided after the point the patients are stable, and then bill to the proper Federal programs.”
In September 2010, the Department of Health and Human Services, Office of Inspector General, published its “Review of Medicaid Funding for Emergency Services Provided to Nonqualified Aliens” (report). The report described existing internal
controls at AHCA that needed to be improved in order to assure that “all claims for services provided to undocumented aliens are for conditions that the State agency defines as emergency services.”
RN Ryder explained that AHCA’s internal controls, mainly the computer program, prevented the reviewers from adjusting a claim’s length of stay to the point where the emergency condition had been alleviated. Rather, the computer would only allow for the approval or denial of a claim. AHCA’s response to the report provided:
The Agency’s contracted quality improvement organization began reviewing all requests for Medicaid reimbursement of inpatient emergency services for undocumented aliens on July 1, 2010. These reviews determine the point at which the emergency no longer exists, consistent with federal regulations and deny Medicaid reimbursement for the remainder of the inpatient stay.
The Agency is also undertaking a retrospective review of all inpatient alien claims from July 2005 through June 30, 2010, to determine point of stabilization. Any payments made in error will be recouped, and the federal share will be adjusted on the Form CMS-64. The retrospective reviews will begin October 1, 2010.
In August 2012, health care providers, including Lee Memorial, filed a Petition for Determination of Invalidity of Non-Rule Policy. This rule challenge, known as Bayfront I, ended with the December 12, 2012, Final Order that AHCA’s use of
“the ‘point of stabilization’ standard was an interpretation or an implementation of the existing statutes and rules and not merely a restatement of them.” As such, AHCA discontinued reliance on the “stabilization standard.”
In October 2014, health care providers, including Lee Memorial, filed a second Petition for Determination of Invalidity of Non-Rule Policy or In the Alternative for Determination of the Invalidity of a Rule. This rule challenge, known as Bayfront II, ended with the April 20, 2015, Final Order5/ that AHCA, having provided notice that it was going to start enforcing it statutes and rules, did not change “an interpretation or way of applying a statute or its rules. It is just starting to enforce them, as they are written, after years of neglecting to enforce them.” See Bayfront Med. Ctr., et al.
v. AHCA, Case No. 14-4758, FO at 69 (Fla. DOAH Apr. 20, 2015).
PROCESS
One method the Agency uses to discover Medicaid overpayments is by auditing billing and payment records of Medicaid providers. Such audits are performed by staff in the Agency's MPI. MPI is responsible for reviewing providers to assure that paid claims for services rendered were in accordance with the applicable rules, regulations and handbook(s). MPI looks to ensure that the provider is enrolled, the recipient is
eligible, the service billed is covered, and the service is billed appropriately.
As an example: An alien is in need of medical care, emergent or otherwise. The alien applies through DCF to become eligible for medical services, and is deemed eligible. An EMC arises, and the alien immediately presents to a duly enrolled Medicaid Provider, a health care facility of some type.6/ The alien is admitted as an inpatient on day one, and emergency health care services are provided. The EMC is alleviated as of day three, yet the alien remains in the health care facility for ten more days, receiving medical services, but not of the emergent type. The alien is discharged from the facility on day
The facility bills the Medicaid program for 13 days of service. It is not uncommon for the alien’s eligibility to be determined after the hospitalization has ended, and the provider is seeking to cover its costs.
PEER REVIEW
When a claim was presented for peer review, the peer reviewers were directed to base the review on the standards governing emergency Medicaid for Aliens under state and federal laws, rules, and regulations. The peer reviewers had three issues to determine: whether an EMC existed, the length or duration of the emergency services (when the EMC was alleviated), and whether there were sufficient medical
documentation/records to perform a medical review of the rendered services.
The peer reviewers were all Florida-licensed physicians, either allopathic or osteopathic, who were matched by specialty or subspecialty to the claims they were reviewing. Each physician testified as to his or her medical or osteopathic education, background and training. Petitioner offered each physician as an expert, and each was accepted as such. The physicians were trained by their peer review organization on the statutes and rules regarding emergency Medicaid for aliens.
The physicians then applied the standards contained in the statutes and rules with their education, training and experience to determine whether an EMC existed, the date on which the EMC was alleviated, and whether there were sufficient medical records upon which to make those determinations.
SPECIFIC CLAIMS TO DOAH CASE NO. 14-4171
Adam Berko, D.O, a Board-certified family practitioner (a/k/a general practitioner), credibly testified regarding the following claim: Claim (Patient) 3, an 18-year-old male, presented to Lee Memorial’s emergency room on December 5, 2006, complaining of shortness of breath, chest pain, body aches and abdominal pain. He was diagnosed with acute renal failure and leukocytosis with bandermia. Patient 3 was discharged from the
hospital on December 14, 2006. Dr. Berko credibly testified that Patient 3’s EMC had been alleviated as of December 9, 2006.
Mark Kanarek, M.D., a Board-certified pediatric physician credibly testified regarding the following claims:
Claim (Patient) 4, an 11-year-old female, presented to Lee Memorial’s emergency room on December 6, 2006, with abdominal pain and emesis (vomiting). It was medically necessary to admit Patient 4. An x-ray was taken which showed a subacute intestinal obstruction secondary to adhesions. A follow-up x-ray on December 7, showed there was a resolution of the small bowel distention. By December 8, Patient 4 was having regular bowel movements, which signified no further obstruction. She remained in the hospital until December 10, 2016; however, when Patient 4’s bowel obstruction was alleviated on the 8th, the EMC was alleviated.
Claim (Patient) 21, a four-year-old male with Down’s syndrome presented to Lee Memorial’s emergency room on July 18, 2006, with a fever following a diagnosis of leukemia. It was an emergent condition for which hospitalization was necessary. Patient 21 continued to have fever spikes through July 23, 2006, which placed the child at a continued risk for life-threatening sepsis. The blood cultures returned as negative and the child was fever-free. Patient 21 remained in the hospital until
July 26, 2006, however when the patient’s fever broke, on the
23rd, and the blood cultures returned as negative, the EMC was alleviated.
Michael Phillips, M.D., a Board-certified internist credibly testified regarding the following claims:
Claim (Patient) 5, an 86-year-old female, presented to Lee Memorial’s emergency room on April 11, 2006, with nausea, vomiting and dehydration. Given Patient 5’s age and condition, it was medically necessary to admit her. Patient 5 received
IV fluids, which were stopped on April 12, 2006. As such, on April 12, Patient 5’s EMC was alleviated, and she was discharged on April 13, 2006.
Claim (Patient) 8, a 31-year-old male presented to Lee Memorial’s emergency room on October 6, 2006, complaining of weakness and dizziness since that morning. Patient 8 was found to have new onset diabetes, after having lost approximately 47 pounds in the preceding four or five months. The admitting diagnosis was “syncope and collapse,” but without mention of a loss of consciousness. There was discussion regarding the signs of the significant weight loss. Patient 8 was discharged on October 12, following his receipt of insulin,7/ oral hypoglycemics8/ and education for his diabetic condition. Patient 8 had “a chronic medical condition that required treatment, but again, it wasn’t something that required immediate emergency care.” There was no EMC.
Claim (Patient) 11, a 26-year-old male with a history of testicular cancer, presented to Lee Memorial’s emergency room on August 29, 2006, for his fifth cycle of chemotherapy.
Patient 11 was admitted to a regular nursing floor for his scheduled chemotherapy treatment. Patient 11 was discharged on September 4, 2006. Patient 11 did not have an EMC nor did he receive any emergency services; rather, he had a scheduled medical treatment.
Claim (Patient) 27, a 43-year-old female presented to Lee Memorial’s emergency room on July 9, 2006, with complaints of nausea, vomiting, diarrhea and chills. She had a two-month history of abdominal pain, nausea, vomiting, and diarrhea, and was diagnosed as having colitis. Patient 27 was admitted to Lee Memorial, had an abdominal scan and was treated with IV infusions. She did not require immediate surgery or any emergency services during the admission. Patient 27 did not receive any emergency services. She was discharged on
September 4, 2006.
Steve Beiser, M.D., a Board-certified internist credibly testified regarding the following claim:
a. Claim (Patient) 13, a 28-year-old male was admitted to Lee Memorial on October 9, 2006, for an elective surgery. Patient 13 underwent an anterior mediastinal germ cell tumor
resection and was discharged on October 14, 2006. Patient 13 did not receive any emergency services.
Bruce Shephard, M.D., a Board-certified obstetrician and gynecologist, credibly testified regarding the following claim: Claim (Patient) 18, a 23–year-old female, presented to Lee Memorial’s emergency room on March 3, 2006, with complaints of being unable to void or have a bowel movement, abdominal pain, and pelvic pain. She was admitted on March 3, and her EMC presented on March 8, when she underwent surgery. Patient 13 was discharged on March 9. The EMC was alleviated on March 8, 2006.
SPECIFIC CLAIMS TO DOAH CASE NO. 15-3271
Dr. Berko credibly testified regarding the following claim:
a. Claim (Patient) 7, a 52-year-old male, presented to Lee Memorial’s emergency room on November 30, 2007, with complaints of epigastric pain, anemia and alcohol abuse. During his December 1, 2015, deposition (Petitioner’s Exhibit 21),
Dr. Berko testified there was insufficient documentation to properly review the claim. At the hearing, the parties agreed that Respondent was able to provide the medical records.
Dr. Berko was able to review the material and render his opinion via a January 23, 2016, Case Detail Report (CDR). Although Respondent did not object to the admission of Petitioner’s
Exhibit 66, the CDR which contained Dr. Berko’s peer review is hearsay. There was no direct credible testimony regarding Patient 7, and no finding of fact is made with respect to Patient 7.
Dr. Kanarek credibly testified regarding the following claims:
Claim (Patient) 4, an eight-year-old female, presented to Lee Memorial with bone pain, fever and a refusal to walk on December 26, 2007. During his January 11, 2016, deposition (Petitioner’s Exhibit 19), Dr. Kanarek testified that there was insufficient documentation to properly review the claim. At the hearing, the parties agreed that Respondent was able to provide the medical records and Dr. Kanarek was able to review the material and render his opinion via a January 21, 2016, CDR. Although Respondent did not object to the admission of Petitioner’s Exhibit 65, the CDR which contained Dr. Kanarek’s peer review is hearsay. There was no direct credible testimony regarding Patient 4, and no finding of fact is made with respect to Patient 4.
Claim (Patient) 12, a 17-year-old male, was admitted to Lee Memorial on January 17, 2007, for a mediport placement, bone marrow biopsy on January 18, and the initiation of chemotherapy. (Patient 12 had been diagnosed with undifferentiated sarcoma with metastasis to the lungs.) There was no EMC for Patient 12,
but rather a planned hospitalization for his cancer treatment. Following his chemotherapy, Patient 12 was discharged on January 22, 2007.
Claim (Patient) 24, a six-year-old Down’s syndrome male with leukemia, was admitted to Lee Memorial on October 11, 2007, with fever and pancytopenia. He was discharged on October 15, 2007, after he had been fever-free for 48 hours on October 14. Dr. Kanarek determined that Patient 24’s EMC was alleviated on October 14.
Claim (Patient) 27, a two-year-old male, was presented to Lee Memorial’s emergency room on August 5, 2007, following a near drowning event which required cardiopulmonary resuscitation. During his January 11, 2016, deposition (Petitioner’s Exhibit 19), Dr. Kanarek testified that there was insufficient documentation to properly review the claim. At the hearing, the parties stipulated that Respondent was able to provide the medical records. Dr. Kanarek was able to review the material and render his opinion via a January 21, 2016, CDR. Although Respondent did not object to the admission of Petitioner’s Exhibit 67, the CDR which contained Dr. Kanarek’s peer review is hearsay. There was no direct credible testimony regarding Patient 27, and no finding of fact is made with respect to Patient 27.
Claim (Patient) 40, a seven-year-old male, presented to Lee Memorial’s emergency room on November 26, 2007, with a one- week history of left-sided facial swelling, following a tooth extraction. Although the child had been given oral antibiotics following the tooth extraction, that course of treatment failed, and his facial swelling and pain increased. When hospitalized, Patient 40 was started on IV antibiotics, and by November 28, 2007, his blood culture was negative, he remained afebrile, and his facial swelling had subsided. The EMC was alleviated on November 28, 2007. Patient 40 was discharged on December 10, 2007.
Claim (Patient) 44, a 13-year-old male, presented to Lee Memorial’s emergency room on August 13, 2007, with a two and one-half month history of weight loss, increased thirst and urination, and a blood glucose of 534. He was admitted to the hospital, given IV normal saline bolus, started on insulin, and received diabetic instruction. Patient 44 did not present with an EMC; he presented with new onset diabetes. Dr. Kanarek credibly testified that Patient 44 never exhibited any signs of diabetic ketoacidosis, an imminently life-threatening condition, and he never required intensive or emergent care. Patient 44 was discharged on August 17, 2007.
Thomas Wells, M.D., a Board-certified surgeon and family practitioner, who engages in emergency medicine, family
practice and surgery, credibly testified regarding the following claims:
Claim (Patient) 6, a 26-year-old female, was admitted to Lee Memorial on May 14, 2007, for a scheduled gastric cancer surgery. This patient had a medical condition, but there was no evidence that she presented with an EMC. Patient 6 was discharged on May 21, 2007.
Claim (Patient) 46, a 20-year-old male, presented to Lee Memorial’s emergency room on June 10, 2007, following a motor vehicle crash. Patient 46 was admitted to the hospital with a traumatic brain injury, bilateral chest trauma, blunt abdominal trauma with liver injury, and multiple bone fractures complicated by cocaine use. His hospital stay was complicated by the surgically repaired wounds opening, and he required additional surgeries. By July 2, 2007, Patient 46’s cardiology workup was completed, his arrhythmia was resolved, his abdominal wound was improving, and he was tolerating food by mouth.
Dr. Wells determined that his EMC was alleviated by July 2. Patient 46 was discharged from the hospital on July 7, 2007.
Claim (Patient) 50, a 33-year-old male, presented to Lee Memorial’s emergency room on July 13, 2007, with upper quadrant abdominal pain radiating to his back. Patient 50 was admitted and underwent testing protocol. By July 20, 2007, Patient 50’s white blood count had improved, his temperature was
improved and his condition was no longer emergent. Dr. Wells determined that the EMC was alleviated on July 20, 2007.
Patient 50 was discharged from the hospital on July 21, 2007.
Dr. Beiser credibly testified regarding the following claims:
Claim (Patient) 9, a 54-year-old male, presented to Lee Memorial’s emergency room and was admitted on September 4, 2007. Prior to the admission, Patient 9 had been non-compliant with his health care provider’s instructions, and he was told to “go to the ER.” Although he came in through the emergency department, there was no EMC to address, or to be alleviated. Rather, Patient 9 was a non-compliant patient who needed to comply with his physician’s directions. Patient 54 was discharged on September 8, 2007.
Claim (Patient) 11, a 33-year-old female, presented to Lee Memorial’s emergency room on April 6, 2007, with a recurrent deep vein thrombosis of her left lower extremity. Her condition was an EMC, and she was admitted. Her physician promptly administered anticoagulation medication and her condition improved, so much so that she was walking well and without chest pain or shortness of breath the following day, April 7. She was discharged on April 9, 2007. Dr. Beiser determined her EMC was alleviated on April 8, 2007.
Claim (Patient) 15, a 35–year-old male, presented to Lee Memorial’s emergency room on April 7, 2007, following a motor vehicle accident involving alcohol intoxication. Patient
15 had a left ankle contusion and a closed head injury, which on imaging identified a large brain mass. The mass was determined to be a cyst and no emergent intervention was indicated. The following day, April 8, Patient 15 was alert and oriented with no apparent alcohol withdrawal symptoms. Dr. Beiser determined that his EMC was alleviated on April 8, 2007.
Claims 17 and 18 involve the same patient over two different hospitalizations. Patient 17/18, a 51–year-old female, presented to Lee Memorial’s emergency room on September 5, 2007, with complaint of abdominal pain after gastric bypass surgery. She was admitted to the hospital and noted to have ascites, jaundice and diabetes. Patient 17/18 was found to have liver failure and bacterial peritonitis. Dr. Beiser determined that the EMC was alleviated by
September 11, when Patient 17/18’s abdominal pain had resolved and there was significant improvement in her overall condition.
On October 13, Patient 17/18 again presented to Lee Memorial with complaints of abdominal pain for four days’ duration. She was known to have severe liver disease. Her abdominal pain was suspected to be bacterial peritonitis and this EMC was treated. By October 15, Patient 17/18 was found to
be afebrile with no abdominal tenderness. Dr. Beiser determined that the EMC was alleviated on October 15, and the patient was discharged on October 21, 2007.
Claim (Patient) 31, a 25-year-old male with a history of meningitis, neurosyphilis and underlying human immunodeficiency virus (HIV), presented to Lee Memorial’s emergency room on June 14, 2007, with an acute febrile illness and neck mass. He was admitted to the hospital and started on IV antibiotics, and a neck biopsy was performed. Patient 31 had a complicated hospital stay as he had persistent fevers, headaches, episodes of hypotension, and sepsis. Through treatment, his condition improved and he was discharged on
July 3, 2007. Dr. Beiser determined that the EMC was alleviated on June 27, 2007.
Claims 33 and 34 involve the same patient over two different hospitalizations. Patient 33/34 is a 67-year-old female who presented to Lee Memorial’s emergency room on May 21, 2007, with an active gastrointestinal bleed and blood loss anemia. She underwent blood transfusions and the anemia was alleviated by May 22. Patient 33/34 was discharged on May 23, 2007. Dr. Beiser determined that the EMC was alleviated on
May 22, 2007.
Patient 33/34 presented to Lee Memorial on July 5, 2007, with an active gastrointestinal bleed and blood loss
anemia. Patient 33/34 underwent blood transfusions and the anemia was alleviated on July 6. Patient 33/34 refused any further medical procedures, and she was discharged on July 8, 2007. Dr. Beiser determined that the EMC was alleviated on July 6, 2007.
Claim (Patient) 37, a 27–year-old female, presented to Lee Memorial’s emergency room on October 12, 2007, with complaints of severe abdominal pain. On October 14, her condition was “improved,” and she denied any abdominal pain, nausea or vomiting. Dr. Beiser determined her EMC was alleviated on October 14. Patient 37 was discharged on
October 15, 2007.
Claim (Patient) 38, a 32-year-old male, presented to Lee Memorial’s emergency room on September 28, 2007, with complaints of excessive thirst and urination, with some slight weight loss and weakness. He was admitted to the hospital for uncontrolled diabetes. Although Dr. Beiser determined that uncontrolled diabetes is not an EMC, Patient 38’s records demonstrated that he had diabetic ketoacidosis, which is an EMC. With insulin, Patient 38’s EMC was alleviated on September 29, 2007. He was discharged on October 1, 2007.
Claim (Patient) 49, a 33-year-old male, presented to Lee Memorial’s emergency room on April 30, 2007, with complaints of right mid-lower quadrant abdominal pain with nausea, vomiting
and diarrhea for two days prior to presentation. Patient 49 was admitted to rule out appendicitis. Patient 49 was taken to surgery on May 2, 2007, where an appendectomy was successfully performed. He had an uneventful recovery, and Dr. Beiser determined that the EMC was alleviated on May 2, 2007. Patient
49 was discharged on May 4, 2007.
Dr. Shephard credibly testified regarding the following claim:
a. Claim (Patient) 36, an 18-year–old female, presented to, and was admitted to Lee Memorial on July 14, 2007, at 31 weeks gestation with a heart condition and mild pre-eclampsia. Her medical condition became emergent on July 26, when she experienced congestive heart failure and decreased oxygen levels. She was transferred to the intensive care unit, and she delivered by emergency C-section on July 28, 2007. Patient 36 was extubated on July 29, and her cardiopulmonary status continued to improve. She was discharged on August 3, 2007.
Dr. Shephard determined that Patient 36’s EMC started on July 26 and was alleviated on August 2, 2007.
RECOUPMENT OF MEDICAID OVERPAYMENTS
Based upon the foregoing findings, and the persuasive weight of the evidence presented by the parties, it is determined:
As to Patient 3, EMC was not required for this patient subsequent to December 9, 2006;
As to Patient 4, EMC was not required for this patient subsequent to December 8, 2006;
As to Patient 21, EMC was not required for this patient subsequent to July 25, 2006;
As to Patient 5, EMC was not required for this patient subsequent to April 12, 2006;
As to Patient 8, none of this patient’s care was required as emergency medical care;
As to Patient 11, none of this patient’s care was required as emergency medical care;
As to Patient 27, none of this patient’s care was required as emergency medical care;
As to Patient 13, none of this patient’s care was required as emergency medical care;
As to Patient 18, although admitted on March 3, 2006, the EMC presented on March 8, and Patient 13 was discharged on March 9, 2006;
(The following patients were seen in 2007.)
As to Patient 7, no finding of fact was made with respect to the care provided;
As to Patient 4, no finding of fact was made with respect to the care provided;
As to Patient 12, none of this patient’s care was required as emergency medical care;
As to Patient 24, emergency medical care was not required for this patient subsequent to October 14, 2007;
As to Patient 27, no finding of fact was made with respect to the care provided;
As to Patient 40, emergency medical care was not required for this patient subsequent to November 28, 2007;
As to Patient 44, none of this patient’s care was required as emergency medical care;
As to Patient 6, none of this patient’s care was required as emergency medical care;
As to Patient 46, emergency medical care was not required for this patient subsequent to July 2, 2007;
As to Patient 50, emergency medical care was not required for this patient subsequent to July 20, 2007;
As to Patient 11, emergency medical care was not required for this patient subsequent to April 8, 2007;
As to Patient 15, emergency medical care was not required for this patient subsequent to April 9, 2007;
As to Patient 17, emergency medical care was not required for this patient subsequent to September 11, 2007;
As to Patient 18, emergency medical care was not required for this patient subsequent to October 15, 2007;
As to Patient 33, emergency medical care was not required for this patient subsequent to May 22, 2007;
As to Patient 34, emergency medical care was not required for this patient subsequent to July 6, 2007;
As to Patient 37, emergency medical care was not required for this patient subsequent to October 14, 2007;
AA. As to Patient 38, emergency medical care was not required for this patient subsequent to September 29, 2007;
BB. As to Patient 49, emergency medical care was not required for this patient subsequent to May 2, 2007;
CC. As to Patient 36, emergency medical care was not required for this patient subsequent to August 2, 2007.
With respect to both DOAH case numbers, Respondent offered no testimony or evidence to dispute or rebut the testimony on any of the claims presented above. Each expert credibly testified as to when each EMC presented and the date on which each EMC was alleviated. The experts provided the requisite support to both the AFAR and FAR.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this proceeding pursuant to sections 120.569, 120.57(1), and 409.913(31), Florida Statutes.
The burden of proof is on the Agency to prove the material allegations by a preponderance of the evidence.
S. Med. Servs., Inc. v. Ag. for Health Care Admin, 653 So. 2d
440 (Fla. 3d DCA 1995); Southpoint Pharmacy v. Dep’t of HRS, 596 So. 2d 106, 109 (Fla. 1st DCA 1992). The sole exception regarding the standard of proof is that clear and convincing evidence is required for fines. Dep’t of Banking & Fin. v.
Osborne Stern & Co., 670 So. 2d 932, 935 (Fla. 1996).
Section 409.902 provides in pertinent part:
The Agency for Health Care Administration is designated as the single state agency authorized to make payments for medical assistance and related services under Title XIX of the Social Security Act. These payments shall be made, subject to any limitations or directions provided for in the General Appropriations Act, only for services included in the program, shall be made only on behalf of eligible individuals, and shall be made only to qualified providers in accordance with federal requirements for Title XIX of the Social Security Act and the provisions of state law. This program of medical assistance is designated the “Medicaid program.” The Department of Children and Families is responsible for Medicaid eligibility determinations, including, but not limited to, policy, rules, and the agreement with the Social Security Administration for Medicaid eligibility determinations for Supplemental Security Income recipients, as well as the actual determination of eligibility. As a condition of Medicaid eligibility, subject to federal approval, the Agency for Health Care Administration and the Department of Children and Families shall ensure that each recipient of Medicaid
consents to the release of her or his medical records to the Agency for Health Care Administration and the Medicaid Fraud Control Unit of the Department of Legal Affairs.
Eligibility is restricted to United States citizens and to lawfully admitted noncitizens who meet the criteria provided in s. 414.095(3).
Citizenship or immigration status must be verified. For noncitizens, this includes verification of the validity of documents with the United States Citizenship and Immigration Services using the federal SAVE verification process.
State funds may not be used to provide medical services to individuals who do not meet the requirements of this subsection unless the services are necessary to treat an emergency medical condition or are for pregnant women. Such services are authorized only to the extent provided under federal law and in accordance with federal regulations as provided in 42 C.F.R.
s. 440.255.
To the extent that funds are appropriated, the department shall collaborate with the Agency for Health Care Administration to develop an Internet-based system that is modular, interoperable, and scalable for eligibility determination for Medicaid and the Children’s Health Insurance Program (CHIP) that complies with all applicable federal and state laws and requirements.
To meet its burden of proof, the Agency may rely on the audit records and report. Sections 409.913(21) and (22) provide:
When making a determination that an overpayment has occurred, the agency shall prepare and issue an audit report to the provider showing the calculation of overpayments. The agency’s determination must be based solely upon information available to it before issuance of the audit report and, in the case of documentation obtained to substantiate claims for Medicaid reimbursement, based solely upon contemporaneous records. The agency may consider addenda or modifications to a note that was made contemporaneously with the patient care episode if the addenda or modifications are germane to the note.
The audit report, supported by agency work papers, showing an overpayment to a provider constitutes evidence of the overpayment. A provider may not present or elicit testimony on direct examination or cross-examination in any court or administrative proceeding, regarding the purchase or acquisition by any means of drugs, goods, or supplies; sales or divestment by any means of drugs, goods, or supplies; or inventory of drugs, goods, or supplies, unless such acquisition, sales, divestment, or inventory is documented by written invoices, written inventory records, or other competent written documentary evidence maintained in the normal course of the provider’s business. A provider may not present records to contest an overpayment or sanction unless such records are contemporaneous and, if requested during the audit process, were furnished to the agency or its agent upon request. This limitation does not apply to Medicaid cost report audits. This limitation does not preclude consideration by the agency of addenda or modifications to a note if the addenda or modifications are made before notification of the audit, the addenda or modifications are germane to the note, and the note was made contemporaneously with a patient care episode. Notwithstanding the applicable
rules of discovery, all documentation to be offered as evidence at an administrative hearing on a Medicaid overpayment or an administrative sanction must be exchanged by all parties at least 14 days before the administrative hearing or be excluded from consideration.
The term “overpayment” is defined as “any amount that is not authorized to be paid by the Medicaid program, whether paid as a result of inaccurate or improper cost reporting, improper claiming, unacceptable practices, fraud, abuse, or mistake.” § 409.913(1)(e), Fla. Stat.
A claim presented under the Medicaid program imposes on the provider an affirmative duty to be responsible for and to assure that each claim is true and accurate and that the service for which payment is claimed has been provided to the Medicaid recipient prior to the submission of the claim. § 409.913(7), Fla. Stat.
The Agency is the state agency designated to administer the Medicaid program in accordance with federal and Florida law. Further, the Agency is required to conduct, or cause to be conducted by contract or otherwise, reviews, investigations, analyses, audits, or any combination thereof, to determine possible fraud, abuse, overpayment, or recipient neglect in the Medicaid program and to report the findings of any overpayments in audit reports as appropriate, section 409.913(2), and to prepare and issue audit reports documenting
overpayments, section 409.913(21). Respondent's assertion that AHCA does not have authority to recoup any overpayment because the claims had prior authorization is misplaced.
The AFAR issued in DOAH Case No. 14-4171 and FAR issued in DOAH Case No. 15-3271 support and constitute evidence of the overpayments claimed. In light of the totality of all the evidence presented in this case, AHCA should recover the overpayment as modified herein.
The assertion that administrative finality estops the Agency from reviewing Medicaid claims is misplaced. Section 409.913 clearly provides that AHCA is to “recover overpayments and impose sanctions as appropriate” and to provide detailed reports to the Legislature on its actions. The only way to determine whether such overpayment has occurred is to review the claims once submitted. The administrative process then allows the provider the hearing which has been conducted.
DCF is the entity that determines an alien’s eligibility. The testimony and statutory authority clearly establishes that DCF does not have the medical expertise to determine the duration of an emergency medical condition. As such, placing DCF in a position to determine the duration is inappropriate.
The Agency met its prima facie burden to establish the overpayment. The overpayments have been determined through Petitioner’s exhibits and the testimony presented.
Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency for Health Care Administration enter a final order sustaining the Medicaid overpayment in DOAH Case No. 14-4171 as $57,337.71, plus sanctions of $2,500, and costs of $2,062.04. With respect to DOAH Case No. 15-3271, the amount due should be recalculated based on only those claims that were found to be overpayments,9/ and costs of $3,528.41. Based on the oral stipulation announced at the hearing (found on Transcript, page 106), AHCA “remove[d] the claim for sanctions as to the 2007 case[s].”
DONE AND ENTERED this 27th day of April, 2016, in Tallahassee, Leon County, Florida.
S
LYNNE A. QUIMBY-PENNOCK
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 27th day of April, 2016
ENDNOTES
1/ On July 30, 2014, Respondent filed a Motion to Reopen Proceedings (DOAH Case No. 12-2929) and Consolidate with DOAH Case No. 12-3596. DOAH Case No. 12-2929 was reopened on September 9, 2014, and assigned DOAH Case No. 14-4171; however, the request to consolidate was denied. On September 15, 2014, AHCA filed a Motion for Leave to Amend Final Audit Report, which was granted. Respondent was allowed to file an Amended Petition to the AFAR.
2/ The alleged overpayment amount was reduced by $31,831.83, from the original FAR amount of $94,399.82.
3/ Respondent’s PRO exceeded the 40-page limit established in Florida Administrative Code Rule 28-106.215.
4/ Section 414.095(3):
(3) ELIGIBILITY FOR NONCITIZENS. A “qualified noncitizen” is an individual who is admitted to the United States as a refugee under s. 207 of the Immigration and Nationality Act or who is granted asylum under s. 208 of the Immigration and Nationality Act; a noncitizen whose deportation is withheld under s. 243(h) or
s. 241(b)(3) of the Immigration and Nationality Act; a noncitizen who is paroled into the United States under s. 212(d)(5) of the Immigration and Nationality Act, for at least 1 year; a noncitizen who is granted conditional entry pursuant to s. 203(a)(7) of the Immigration and Nationality Act as in effect prior to April 1, 1980; a Cuban or Haitian entrant; or a noncitizen who has been admitted as a permanent resident. In addition, a “qualified noncitizen” includes an individual who, or an individual whose child or parent, has been battered or subject to extreme cruelty in the United States by a spouse, a parent, or other
household member under certain circumstances, and has applied for or received protection under the federal Violence Against Women Act of 1994, Pub. L. No. 103-322, if the need for benefits is related to the abuse and the batterer no longer lives in the household. A “nonqualified noncitizen” is a nonimmigrant noncitizen, including a tourist, business visitor, foreign student, exchange visitor, temporary worker, or diplomat. In addition, a “nonqualified noncitizen” includes an individual paroled into the United States for less than 1 year. A qualified noncitizen who is otherwise eligible may receive temporary cash assistance to the extent permitted by federal law. The income or resources of a sponsor and the sponsor’s spouse shall be included in determining eligibility to the maximum extent permitted by federal law.
A child who is a qualified noncitizen or who was born in the United States to an illegal or ineligible noncitizen is eligible for temporary cash assistance under this chapter if the family meets all eligibility requirements.
If the parent may legally work in this country, the parent must participate in the work activity requirements provided in
s. 445.024, to the extent permitted under federal law.
The department shall participate in the Systematic Alien Verification for Entitlements Program (SAVE) established by the United States Bureau of Citizenship and Immigration Services in order to verify the validity of documents provided by noncitizens and to verify a noncitizen’s eligibility.
The income of an illegal noncitizen or ineligible noncitizen who is a mandatory member of a family, less a pro rata share
for the illegal noncitizen or ineligible noncitizen, counts in determining a family’s eligibility to participate in the program.
The entire assets of an ineligible noncitizen or a disqualified individual who is a mandatory member of a family shall be included in determining the family’s eligibility.
5/ The Final Order is on appeal at the First District Court of Appeal.
6/ In the event an EMC manifests itself and the alien has not already been deemed eligible, that application process can take place during the hospital stay.
7/ A hormone made by the pancreas that allows your body to use sugar from carbohydrates in food for energy or to store for future use.
8/ An anti-diabetic drug designed to help people with type-2 diabetes.
9/ AHCA must recalculate this amount to delete the overpayment for claims 4, 7, and 27.
COPIES FURNISHED:
Joanne Barbara Erde, Esquire Duane Morris LLP
Suite 3400
200 South Biscayne Boulevard Miami, Florida 33131 (eServed)
Diana R. Esposito, Esquire Office of the Attorney General Suite 1100
501 East Kennedy Boulevard Tampa, Florida 33602 (eServed)
Daniel Elden Nordby, Esquire Shutts and Bowen LLP
Suite 804
215 South Monroe Street Tallahassee, Florida 32301 (eServed)
Donald C. Freeman, Esquire
Agency for Healthcare Administration Office of the General Counsel
2727 Mahan Drive, Mail Stop 3
Tallahassee, Florida 32308 (eServed)
Joseph M. Goldstein, Esquire Shutts and Bowen LLP
Suite 2100
200 East Broward Boulevard Fort Lauderdale, Florida 33301 (eServed)
Richard J. Shoop, Agency Clerk Agency for Healthcare Administration 2727 Mahan Drive, Mail Stop 3
Tallahassee, Florida 32308 (eServed)
Elizabeth Dudek, Secretary
Agency for Healthcare Administration 2727 Mahan Drive, Mail Stop 1
Tallahassee, Florida 32308 (eServed)
Stuart Williams, General Counsel Agency for Healthcare Administration 2727 Mahan Drive, Mail Stop 3
Tallahassee, Florida 32308 (eServed)
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.
| Issue Date | Document | Summary |
|---|---|---|
| May 12, 2020 | Agency Final Order | |
| May 12, 2020 | Agency Final Order | |
| Aug. 04, 2016 | Agency Final Order | |
| Apr. 27, 2016 | Recommended Order | Petitioner presented evidence to support overpayment to Respondent. |
