STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
AGENCY FOR HEALTH CARE ADMINISTRATION,
Petitioner,
vs.
LEE MEMORIAL HEALTH SYSTEM GULF COAST MEDICAL CENTER,
Respondent.
/
Case No. 15-3876MPI
RECOMMENDED ORDER
This case came before Administrative Law Judge John G. Van Laningham for final hearing on November 2, 2015, in Tallahassee, Florida.
APPEARANCES
For Petitioner: Joseph M. Goldstein, Esquire
Jacqueline Howe, Esquire Shutts and Bowen LLC
200 East Broward Boulevard, Suite 2100 Fort Lauderdale, Florida 33301
Daniel Elden Nordby, Esquire Shutts and Bowen LLP
215 South Monroe Street, Suite 804 Tallahassee, Florida 32301
For Respondent: Joanne Barbara Erde, Esquire
Donna Holshouser Stinson, Esquire Duane Morris LLP
200 South Biscayne Boulevard, Suite 3400 Miami, Florida 33131
STATEMENT OF THE ISSUE
The issue for determination is whether an amount of up to
$46,901.85, which Petitioner paid on behalf of eligible aliens for emergency hospital inpatient services that Respondent provided during the period from January 1, 2007, to
December 31, 2007, constitutes an overpayment that Respondent must return, on the grounds that the services are not covered by Medicaid, despite having been included in claims of Respondent's that were prior authorized by Petitioner before payment.
PRELIMINARY STATEMENT
Petitioner Agency for Health Care Administration ("AHCA" or the "Agency") is the state agency responsible for administering the Florida Medicaid Program. Respondent Lee Memorial Health System Gulf Coast Medical Center ("Gulf Coast"), a hospital, is a Medicaid provider.
AHCA conducted a retrospective review of Gulf Coast's claims for emergency services provided between January 1, 2007, and December 31, 2007, to illegal aliens who had been determined by the Department of Children and Families to be eligible, at all relevant times, for Medicaid assistance. The purpose of this review was to determine, with respect to each recipient, whether an emergency medical condition existed at any point during his or her treatment and, if so, the date on which the condition was "alleviated." AHCA's position was (and has
remained throughout this proceeding) that Medicaid is not authorized to make payments on behalf of eligible alien recipients for services necessary to treat an emergency medical condition beyond the date the emergency has been alleviated, even if the emergency condition continues to exist, because such services are excluded from coverage.
After completing its review, AHCA issued a Final Audit Report ("FAR") dated February 26, 2015. AHCA alleged in the FAR that Gulf Coast had been overpaid $75,709.09 for what AHCA alleged were either nonemergency services (not covered by Medicaid) or post-"alleviation" emergency services (excluded from coverage). AHCA later reduced the alleged overpayment to
$46,901.85.
On March 25, 2015, Gulf Coast filed a Petition for Formal Administrative Hearing with AHCA, whose title describes its purpose. By letter dated July 9, 2015, the Agency referred the matter to the Division of Administrative Hearings ("DOAH"), which opened a file on July 13, 2015.
At the final hearing, which took place as scheduled on November 2, 2015, with both parties present, the Agency called as a witness its employee Tracy Ryder, R.N., who testified as an agency spokesperson. AHCA also introduced the depositions of the following physician peer reviewers: Steve Beiser, Thomas Wells, Jocelyne David, Michael Phillips, and Naveen Gande.
Petitioner's Exhibits 1 through 34 were admitted into evidence. Gulf Coast offered Respondent's Exhibits 1 through 4, 7 through 18, 20 through 35, 41 through 47, 49 through 52, and 54 through 59, which were received in evidence.
The two-volume final hearing transcript was filed on November 17, 2015. The parties timely filed proposed recommended orders on December 21, 2015, the established deadline. These papers were carefully considered in the preparation of this Recommended Order.
Unless otherwise indicated, citations to the official statute law of the state of Florida 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 FACT1/
Gulf Coast was, at all relevant times, an enrolled Medicaid provider authorized to receive reimbursement for covered goods and services provided to Medicaid recipients.
Medicaid is a program "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
. . . to be eligible on the date of service for Medicaid assistance." § 409.901(16), Fla. Stat. To receive Medicaid
assistance, a person must first submit an application therefor to the Department of Children and Families ("DCF").
An "individual whose written application for medical assistance . . . has been submitted to [DCF] . . . , but has not received final action," is referred to as an "applicant."
§ 409.901(19), Fla. Stat. An applicant whom DCF has determined "is eligible, pursuant to federal and state law, to receive medical assistance and related services for which [AHCA] may make payments under the Medicaid program" is called a "recipient." § 409.901(19), Fla. Stat.
Medicaid is jointly funded by the federal government and the states that have elected to participate in the program, which include Florida. Federal payments to the states for a proportion of the cost of Medicaid are referred to as federal financial participation ("FFP"). AHCA is the agency responsible for administering Medicaid in the state of Florida.
Medicaid eligibility is restricted to U.S. citizens and lawfully admitted noncitizens, which means 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 usually be referred to herein simply as "aliens."
As an exception to the general rule, episodic eligibility is available to an alien who is either pregnant2/ 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.
Thus, 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" whose conclusion terminates the alien's eligibility.
The term "emergency medical condition" is defined, in relevant part, 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" serious jeopardy to the patient's well-being, bodily functions, body parts, or organs. § 409.901(10)(a), Fla. Stat.3/
The term "emergency services and care"——which is clearly synonymous with both "services [which] are necessary to treat an emergency medical condition"4/ and "emergency medical services"5/——is defined in section 409.901(11) as follows:
medical 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.
As briefly mentioned above, DCF is responsible "for [making] Medicaid eligibility determinations" and for promulgating Medicaid eligibility rules. § 409.902(1), Fla. Stat. DCF has adopted Florida Administrative Code Rule 65A- 1.715 addressing the subject of Medicaid eligibility for aliens, which provides as follows:
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)[6/] 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.
The rule's phrase "emergency medical situation" is plainly intended to be synonymous with the term "emergency medical condition" (hereafter, in places, "EMC") as defined in section 409.901(10).
When an alien applies for Medicaid assistance, DCF, following its rules, turns to the health care provider for an opinion as to whether an EMC exists and, if so, for an estimate regarding the length of time the EMC will last. DCF generally accepts the provider's judgement on these matters.
If DCF approves the alien's application, then the alien recipient will be eligible for Medicaid assistance for the duration of the EMC as determined by DCF in reliance upon the
medical provider's input. Every alleged overpayment at issue in this case involves a payment made on behalf of an alien whom DCF had determined was eligible for Medicaid assistance, for services provided on a date or dates within the period of the recipient's emergency as determined by DCF in its final agency action on the alien's application for medical assistance. Where appropriate in the discussion that follows, the individuals on whose behalf the disputed payments were made will be referred to as "alien recipients" or simply "recipients." Unless otherwise indicated, or a broader meaning is clearly implied, the term "recipients" as used below denotes alien recipients.
The temporal restriction on the eligibility of alien recipients, which as seen is limited by DCF to the period of each recipient's emergency, is mentioned in the Florida Hospital Services Coverage and Limitations Handbook ("Handbook"), a publication of AHCA, the current version of which is periodically incorporated by reference in a Florida Administrative Code rule as the Handbook's provisions are updated from time to time. The relevant Handbook provisions state as follows:
The Medicaid Hospital Services Program reimburses for the 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.
(Emphasis added). These provisions will be referred to as the "Statement on the Eligibility of Aliens for Services" or "SEAS" for short.
There is a dispute, to which this discussion will return, as to whether SEAS is descriptive (merely informative) or prescriptive (a separate mandate). It is undisputed, however, that SEAS, by virtue of its being located within incorporated reference material, had the status of a rule throughout calendar year 2007, within which the dates of service at issue fell, and that no meaningful amendments to SEAS have since occurred, as of this writing.
In 2002, exercising authority granted under section 409.905(5)(a), Florida Statutes, the Agency implemented a prior authorization program for hospital inpatient services, including emergency services provided to alien recipients. This program, which was put in place approximately five years before any of the services at issue were provided, requires hospitals to submit Medicaid claims to AHCA for review and approval before presenting the claims for payment. Only claims for hospital inpatient services that have received prior authorization may be presented for payment.
Prior authorization is an administrative adjudication by AHCA of the compensability of a claim, which determines the hospital's substantial interests. Denial or reduction of a claim entitles the hospital to a hearing which, if requested, results in a final order. Payment in full of a previously authorized claim is the equivalent of a final order because AHCA, signaling the consummation of its decision-making process, binds itself to a course of action, which, being neither tentative nor interlocutory, affords the hospital complete satisfaction, depriving the payee of any opportunity or reason to protect its substantial interests at a later date.7/
Pursuant to the prior authorization program, AHCA examined each claim at issue in this case and determined that it was authorized to be paid by the Medicaid program before the claim was presented for payment. Thereafter AHCA paid each pre- approved claim upon submission, on the dates, in the amounts, and for the days of hospitalization shown in the following table:
Claim No. | Length of Stay (Covered Days) | Date Billed | Date Paid | Amount Paid |
1 | 12 | 07/13/07 | 09/29/07 | $15,713.04 |
3 | 6 | 09/25/07 | 01/30/08 | $ 7,856.52 |
4 | 3 | 03/23/07 | 07/25/07 | $ 3,928.26 |
15 | 23 | 01/23/08 | 04/23/08 | $29,707.49 |
Claim No. | Length of Stay (Covered Days) | Date Billed | Date Paid | Amount Paid |
16 | 3 | 01/02/08 | 03/05/08 | $ 3,874.89 |
18 | 9 | 12/26/07 | 09/23/09 | $11,624.67 |
19 | 5 | 11/26/07 | 01/30/08 | $ 6,544.10 |
20 | 5 | 11/20/07 | 02/11/09 | $ 6,544.10 |
23 | 4 | 06/15/07 | 10/23/07 | $ 5,237.68 |
To recap, when an alien desires medical assistance under Medicaid, he makes a written application therefor to DCF, much like an application for licensure in other contexts, and DCF, after reviewing the application and supporting information, either grants or denies the applicant's request. DCF's final agency action, which determines the applicant's substantial interests, culminates an administrative process having two parties, i.e., DCF and the alien applicant. If the alien applicant is approved, he is an eligible Medicaid recipient for the length of time prescribed by DCF in its final action on the application.
An alien recipient is entitled to medical assistance for emergency care and services provided during the period of the emergency comprising the dates established by DCF in its final agency action, for the recipient is Medicaid-eligible on those dates of service, as a matter of Florida law. Medicaid providers who render services necessary to treat the EMC upon
which DCF based the recipient's eligibility may present a claim to AHCA for payment under the Medicaid program. AHCA is responsible for adjudicating whether the provider's claim is authorized to be paid by the Medicaid program, and AHCA takes final agency action determining the provider's substantial interests in this regard.
If the provider is a hospital, AHCA determines prospectively whether the claim is authorized to be paid, pursuant to the prior authorization program described above. For other providers not subject to prior authorization requirements, AHCA determines compensability retroactively, after conducting audits of previously paid claims. Whether the adjudication is prospective or retrospective, however, AHCA's final agency action culminates an administrative process having two parties, i.e., AHCA and the provider.
As mentioned above, the state of Florida receives federal funds known as FFP to cover a percentage of its Medicaid program expenditures. The U.S. government pays FFP to participating states on a quarterly basis. For their part, the states must submit quarterly expense reports to the U.S. government, in effect claiming FFP or, more loosely, "billing" the federal government for Medicaid costs. If the federal government believes that it has overpaid a state, it may disallow claims for FFP and recover the amount of overpayment
from the state. The state is entitled to pursue an administrative appeal, before the appropriate federal agency, of any disallowance which it disputes, and it may obtain judicial review of an adverse agency decision. See 42 U.S.C. § 1316(e).
In 2009, the U.S. Department of Health and Human Services, Centers for Medicare and Medicaid Services ("CMS"), conducted a review of AHCA's quarterly expense reports for periods in 2002, 2004, and 2005. "The purpose of the review," wrote CMS in a letter to AHCA dated August 25, 2009, "was to determine whether [the state]'s billing for [FFP to cover a percentage of the cost of providing] emergency medical services to undocumented aliens . . . complies with applicable Federal statutes and CMS's regulations."
The federal officials who conducted this review prepared a report which contained six "findings" and six "recommendations." One of the findings is noteworthy. CMS found:
AHCA is claiming FFP for emergency medical services to undocumented aliens beyond what Federal statutes and regulations define to be an emergency.
(To clarify, the undersigned is not finding that this statement is true; only that it was, in fact, made.)
Two of CMS's recommendations have some relevance here as well, inasmuch as they would lead, in time, to this case. CMS recommended that:
AHCA [should] re-determine the sampled claims' Medicaid eligibility status, as well as their immigrations status in order to determine if they qualify for Emergency Medicaid assistance.
* * *
AHCA should review all emergency services for undocumented alien amounts claimed for FFP during Fiscal Years 2005, 2006, and 2007 and re-determine the allowability of these claims utilizing the required Federal criteria. Based on this review and re- determination, AHCA should revise previous FFP amounts claimed on the Form CMS-64 quarterly statement of expenditures report to reflect only emergency services to undocumented aliens . . . up to the point of stabilization.
(Emphasis added).
Before proceeding, it is important to observe that CMS was investigating whether the federal government had made overpayments to the state of Florida, not whether AHCA had made overpayments to providers. CMS might have disallowed AHCA's claims for FFP and recovered the overpayments if it believed that Florida had overbilled the federal government for emergency services to alien recipients (although there is no evidence in the record that this ever happened), but it had (and has) no jurisdiction to determine whether a provider's services were
covered under the Florida Medicaid program, for that is a question of state law.
Moreover, CMS could not empower or direct AHCA to "re- determine" either the eligibility of any alien recipient or the compensability of any service provided to such a recipient for the purposes of recouping alleged overpayments to providers.
For one thing, AHCA had not determined the eligibility of any alien in the first place, as that is DCF's responsibility, and for another, eligibility decisions affect the substantial interests of the applicants themselves, whose rights in that regard are established when DCF takes final agency action. AHCA does not have the authority under state law to mount collateral challenges to the final actions of another agency such as DCF, and even if it did, the other agency and any persons whose substantial interests had been determined thereby would surely be considered indispensable parties to the collateral proceeding.
As for recouping overpayments from providers, while AHCA has the authority to determine whether claims are authorized to be paid by the Florida Medicaid program, the power to "re-determine" a previously adjudicated claim is another matter entirely, one which is a question of state law. And state law, as will be seen, does not casually permit "do-overs"
with respect to final agency actions which determine substantial interests.
To be fair to CMS, however, its recommendations to AHCA were for purposes of revising AHCA's claims for FFP, the "allowability" of which is a matter of federal law; further, AHCA may revise the state's FFP claims, if it so chooses, based on re-determinations of eligibility or compensability which it could not make in a proceeding to determine the substantial interests of a recipient or provider, because neither recipients nor providers are parties to the financial dealings between the state and federal government. In plain terms, to reduce the federal liability to Florida for FFP, CMS asked AHCA to reduce its (the state's) bill and suggested ways——none of which involved recouping alleged overpayments from providers——that AHCA might accomplish this objective in accordance with federal law governing FFP payments.
With CMS's report in hand, AHCA went to work, launching an Undocumented Alien Project whose goal was to audit all paid hospital inpatient claims for emergency services provided to alien recipients between July 1, 2005, and June 30, 2010. AHCA undertook this project, at least in part, to recoup alleged overpayments to providers such as Gulf Coast, which is not what CMS had recommended that AHCA do.
The Undocumented Alien Project is a program which entails the retrospective review of hospitals' Medicaid claims, in that the reason for carrying it out is to adjudicate the compensability of claims that have already been paid. Ex post facto audits of paid Medicaid claims are commonplace, to be sure, but unlike the typical retrospective review, this project involves the attempted re-adjudication of claims that were already authorized once before, on a prospective basis. The point has been made, but it bears repeating: Because of the prior authorization program for hospital inpatient services, the compensability of each claim selected for review pursuant to the Undocumented Alien Project, including every claim at issue in this case, had already been determined on the merits by AHCA, whose decision that the claim was payable became final agency action upon payment. In effect, then, the Undocumented Alien Project is AHCA's blueprint for revisiting its own prior decisions.
AHCA entered into a contract with eQHealth Solutions, Inc. ("eQHealth"), to perform the audit of claims for emergency services provided to alien recipients. eQHealth trained and managed the physician peer reviewers who examined the pertinent medical records. The peer reviewers were instructed to determine, with respect to each recipient, whether an emergency
medical condition existed and, if so, the date on which the condition was "alleviated."
The focus on "alleviation" as a critical moment in the course of an EMC was inspired by the Handbook provisions comprising the Statement on the Eligibility of Aliens for Services, or SEAS, introduced above. Under the Undocumented Alien Project, SEAS acquired a new, aggressively prescriptive quality, as AHCA conceived the theory that medical items or services furnished to an alien recipient after his EMC has been "alleviated" are not authorized to be paid under Medicaid. As support for this proposition, AHCA makes mention of sections 409.902(2)(b) and 409.904(4), but mainly it relies on SEAS.
AHCA is now fully invested in the notion that SEAS is an independent exclusionary provision, having the effect of law, enforceable against providers. AHCA made this clear in the FAR giving rise to the instant proceeding, which states in relevant part:
A medical record review was performed by a medical review team including a peer physician reviewer who determined the point at which the alien recipient's emergent complaint was alleviated. Medicaid policy does not allow payment of claims for services rendered beyond the date the emergency has been alleviated. Although medical necessity may continue to exist, Medicaid is not responsible for payment of those continuing services. Consequently, the inpatient services billed to and paid by Medicaid beyond the peer reviewer's
determined date of alleviation are identified as an overpayment and are subject to recoupment.
(Emphasis added).
AHCA has not publicly either defined the term "alleviation," or specified the criteria to be applied in determining the point at which a recipient's EMC was "alleviated," for the purposes of SEAS. To the contrary, AHCA has eschewed making a clear statement concerning its construction of this supposed exclusion, with the result that there is, in fact, no official agency interpretation to which a court could defer were it inclined to do so. According to AHCA, no authoritative interpretation is needed because the word "alleviation" is plain and unambiguous. Thus, AHCA claims that its peer reviewers are asked only to apply SEAS according to the common "dictionary definition" of the crucial term as they understand it.
AHCA's position does not withstand scrutiny. Of course the term "alleviate," as used in everyday discourse, has a plain meaning which can be found in any dictionary, but this is a triviality, for SEAS consists of more than one word. The ambiguity of SEAS, if any, arises not from uncertainty about the meaning of "alleviation" per se, but from its use in this particular context, where predictability, consistency,
reliability, and replicability are required, and none are provided by a word which is not a natural yardstick.
To explain, according to the Merriam-Webster Dictionary, "alleviate" is a transitive verb having the following definition:
: RELIEVE, LESSEN: as
a: to make (as suffering) more bearable
<her sympathy alleviated his distress>
b: to partially remove or correct <measures taken to alleviate a labor shortage>
"Alleviate," Merriam-Webster.com, http://www.merriam-webster.com (last visited Jan. 9, 2016). Webster's adds that the term "alleviate" "implies temporary or partial lessening of pain or distress <the lotion alleviated the itching>." Id. The Webster's definition captures the common meaning of the term "alleviate" as it is ordinarily used and understood.
Clearly, the state of alleviation, for any condition, is not absolute but relative. Which means, to say that a condition has been alleviated reflects a comparison of that condition to itself at different points in time, e.g., before and after some intervention. So, for example, if the condition were a labor shortage, then it might be said that measures which increased the percentage of jobs filled in the relevant sector alleviated the problem, i.e., improved the employment situation
to the point that the condition became more favorable than it had been.
Because the term "alleviation" literally means only that an unfavorable situation has been made less unfavorable, relative to what it was, the question of whether a situation has been alleviated, in the customary sense, is not determined according to an external or objective benchmark. Where the unfavorable condition is the result of illness, disease, or bodily injury, therefore, it would be accurate, according to the plain meaning of the term, to characterize the patient's condition as alleviated after each and every clinical improvement, for any such improvement makes the situation better than it was. Likewise, alleviation (without more) is not an end-point; it might not even be a milestone. In reference to a medical condition, alleviation signifies an improvement of some sort, but neither denotes nor implies that the change has overall or long-term significance for the patient.
Looking to capitalize on the term's elasticity, the Agency argues that the alleviation of an emergency condition can occur anytime, regardless of when, even including after, the EMC ends. This, clearly, goes too far. Logically, the point of alleviation must occur at or before the recipient's condition ceases to be an EMC meeting the statutory criteria, because once a medical condition has improved to the point that it stops
being an "emergency medical condition" within the statutory definition, it can no longer be alleviated as such.8/ Still, a term broad enough to describe something that literally can happen anytime, indeed multiple times, during the existence of an EMC is not a benchmark but a license.
To see this, imagine a person who suddenly collapses, loses consciousness, and stops breathing as the result of a cardiac arrest. Suppose an alert bystander, after calling 911, performs CPR on the victim, which revives him sufficiently that he starts breathing again. Upon their arrival minutes later, paramedics use a defibrillator to shock the victim's heart into a more regular rhythm, and they perform other emergency first aid in the ambulance on the way to the hospital. In the emergency room, doctors immediately start administering anti- arrhythmic drugs, further stabilizing the patient's condition.
Each step in this hypothetical process could be considered a point of "alleviation" under the dictionary definition of the term. CPR alleviated the symptoms of unconsciousness and inability to breath, improving by some degree the victim's chances of survival. Defibrillation alleviated the symptom of arrhythmia, further improving, by some degree, the patient's condition. Additional alleviation of the patient's symptoms, and of the patient's condition, occurred in the emergency room. If alleviation can occur at any time before
the emergency ceases to exist, then there is nothing to prevent a decision-maker from determining that this victim's emergency was alleviated as soon as the bystander successfully performed CPR, or upon the restoration of a regular heartbeat using defibrillation, or in the emergency room. By itself, the term "alleviation" fails to provide sufficient guidance to permit different decision-makers consistently to reach similar results in similar cases.
What this means is that, lacking a uniform foundation of neutral principles prescribing authoritatively for everyone affected precisely how much relief or what degree of lessening of the severity of an EMC constitutes "alleviation," the peer reviewers' opinions as to when the alleviation points were reached are necessarily based upon undisclosed subjective principles, making them the mere ipse dixits of credentialed witnesses, which AHCA expects will simply be accepted unconditionally as valid. The Agency's representative, Tracy Ryder, admitted as much when she testified at hearing as follows:
Q. Okay. How much was the emergency medical condition to be lessened to be——how much was it required to be lessened for it to be alleviated?
A. That would be for a peer reviewer to determine.
Tr. 191:3-7. To the undersigned, whose responsibility as the trier of fact in this de novo proceeding is to determine, where relevant, such facts as the "dates of alleviation," the peer reviewers' opinions are practically worthless because they rest almost entirely on the authority of the respective witnesses and cannot be independently verified or falsified.
If the point at which an emergency medical condition was "alleviated" is to be used as the basis for excluding from otherwise payable claims amounts for medically necessary emergency services, as AHCA urges, then the undersigned must find, for each recipient, the date upon which his or her EMC was alleviated, since that is a matter of ultimate fact. In this fact-finder's estimation, the dictionary definition of "alleviate" will not cut the mustard as a standard for decision. SEAS must be interpreted or at least explicated.
SEAS, remember, consists of three sentences. The first says that Medicaid pays "for the emergency services provided to aliens who meet all Medicaid eligibility requirements except for citizenship." The second states that "[e]ligibility can be authorized only for the duration of the emergency." Taken together, these two sentences clearly provide that Medicaid pays for emergency services provided to an alien recipient during the course of his qualifying emergency——no more, but no less. There is no other way to read them.
The third sentence cautions that "Medicaid will not pay for continuous or episodic services after the emergency has been alleviated." This sentence, which does not exist in a vacuum, needs to be construed together——and in harmony——with the preceding (and plainly related) provisions.9/ Having just been told that Medicaid pays for emergency care provided to an alien recipient for the "duration of the emergency," it must logically be concluded that an emergency which "has been alleviated" cannot also be an enduring emergency, because otherwise the third sentence would contradict the first two. Reinforcing this conclusion is the striking contrast between "emergency services" (fist sentence) and "continuous or episodic services" (third sentence), which are clearly meant to reference different things. Plainly, "continuous or episodic services" are nonemergency services, i.e., services provided to treat a medical condition that is no longer an emergency medical condition.10/ To maintain a logical cohesion between its constituent parts, therefore, SEAS must be understood as incompatible with the possibility that the point of alleviation could occur while the emergency is ongoing.
There is another reason why, pursuant to SEAS, the point of alleviation cannot be found to occur before the cessation of the EMC. It is because, to exclude from coverage services necessary to treat an EMC, which are provided while the
recipient continues to experience the emergency medical condition, is to deny medical assistance for medically necessary emergency services and care on behalf of an eligible alien recipient who is still in need of emergency medical services.
Yet, section 409.902(2)(b) provides that medical assistance is authorized for aliens "in accordance with 42 C.F.R. s. 440.255," which in turn states that aliens "must receive the services
necessary to treat [an emergency medical] condition." See 42
C.F.R. § 440.255(c)(emphasis added). Applying or implementing SEAS in a way that permits the discontinuation of Medicaid payments for medically necessary emergency medical services provided to alien recipients would violate federal law.
SEAS cannot be given such a construction without rendering it unconstitutional. This is because, when the state of Florida elected to participate in Medicaid, it became bound to follow the federal statutes and regulations that govern the program. See The Public Health Trust of Dade Cnty., Fla. v.
Dade Cnty. Sch. Bd., 693 So. 2d 562, 564 (Fla. 3d DCA 1996).
Consequently, a state administrative regulation which is in direct conflict with federal Medicaid law is invalid under the Supremacy Clause. Id. at 566. Where possible, statues and
rules must be given a construction that avoids a constitutional infirmity. See, e.g., Tyne v. Time Warner Entm't Co., 901 So.
2d 802, 810 (Fla. 2001); Cortes-Martinez v. Palmetto Vegetable
Co., LLC, 159 So. 3d 934, 936 (Fla. 1st DCA 2015).
In the end, there is only one permissible and reasonable interpretation of the phrase "after the emergency has been alleviated" for purposes of SEAS, which is: after the recipient's medical condition ceases to meet the criteria defining an "emergency medical condition" as set forth in section 409.901(10). In short, the point of alleviation occurs when the "emergency medical condition" has been reduced to a nonemergency medical condition.11/
This, actually, is what the Agency covertly understands SEAS to mean, as it occasionally reveals, although this truth is always well attended by a bodyguard of disclaimers. Ms. Ryder testified, for example, as follows:
Q. How would you get a uniform decision amongst peer reviewers if you're not telling them how much it has——an emergency medical condition has to be lessened for it to be alleviated?
A. Well, [to be alleviated,] the—— [emergency medical condition] would have to be lessened to the point that it wouldn't——I would assume it would no longer be considered an emergency condition. I mean, you know, what I'm saying is I really can't answer that question because I'm not a medically trained doctor.
Tr. 191:8-14 (emphasis added). Or, as AHCA's counsel put it: [W]e don't want to compare alleviate to the
end of an emergency medical condition
because that's not how our rule is written. The only reason why we're answering that question in as direct a way as possible is because you're asking us to . . . and I think as you read through these [deposition] transcripts, most of the peer reviewers when pressed on cross-examination [to answer the question:] ["I]s the alleviation point the same point as——that the emergency medical condition no longer exists[?,"] most of them, for the facts they're reviewing, that's what they——most of them eventually come to that point when pushed hard enough on cross-examination. But all of them, I think, along with the corporate——the Agency representative . . . , [a]ll we're trying to say is [that] that's not what we were doing because we're trying to apply the common, ordinary meaning of the terms in our rule.
Tr. 71:25-73:2 (emphasis added).
In truth, although they had to be "pushed hard" to say so, the peer reviewers did look for the end of the emergency medical condition in forming their opinions about when an emergency was alleviated, a fact which becomes reasonably clear upon reviewing their Case Detail Reports, and is evident notwithstanding the strong resistance all put up against admitting as much when questioned under oath. Given that, the question naturally arises: Why is the Agency so reluctant to acknowledge the obvious, namely that in this context "alleviated" means, as it can only mean, reduced to a nonemergency medical condition?
There is no direct evidence, of course. The undersigned presumes, however, that the strategy is to keep AHCA
from being caught between Scylla and Charybdis, i.e., from unambiguously having either to acknowledge that (in violation of federal law) it is denying medical assistance for medically necessary emergency medical services provided to eligible alien recipients or, alternatively, to concede that it is redefining the "period of the emergency" (which circumscribes a recipient's eligibility and thus is for DCF to determine once for all).
To thread the needle, AHCA's solution is to change the subject from "eligibility" to "compensability." This is canny, for the two concepts really are distinct, as AHCA observes, and the application of coverage provisions and exclusions is AHCA's responsibility, unlike the determination of eligibility, which is not. AHCA's position is summed up in the following paragraph from its Proposed Recommended Order:
18. Although DCF is initially responsible for deciding whether a person is eligible to enroll in Medicaid, only AHCA has statutory authority to determine the compensability of a Medicaid service (and, consequently, whether a Medicaid provider was entitled to receive Medicaid payment for a service). Those two roles may appear to overlap where undocumented aliens are involved due to the similarity of DCF's legal standard for enrollment eligibility to AHCA's legal standard for service payment compensability, however they are distinct processes: each are performed by different (and differently qualified) employees, who are reviewing different documentation, for different purposes, each applying separate and
distinct legal standards in light of the dissimilar role that they perform.
AHCA's PRO at 16.
This argument starts from premises which are true, in the abstract, but it quickly begs the question by assuming, rather than showing, that AHCA is merely determining the compensability of a service as opposed to the eligibility of a person. In fact, none of the claims at issue involves particular services which AHCA alleges were not medically necessary, for example, or were provided to treat some condition other than the recipient's emergency medical condition. Rather, for each claim, AHCA is denying payment, categorically, for all services rendered after the so-called "date of alleviation" on the grounds that all such services, whatever they were (for it does not matter), constituted nonemergency or post-"alleviation" care. To repeat for emphasis, AHCA has reached this conclusion, in every instance, not based upon a determination about any particular service, for the actual services truly are irrelevant to AHCA's argument; but based on a determination about the recipient, namely that this particular person's EMC, if he had one, ended——or was at least alleviated——on a particular date.
In this connection, AHCA asserts that it "has the authority and legal obligation to ensure that state funds are not used to provide medical services to undocumented aliens
'unless the services are necessary to treat an emergency [medical] condition.' See § 409.902(2)(b), Fla. Stat." AHCA's PRO at 16. Thus, on the authority of section 409.902(2)(b), AHCA claims the power to refuse medical assistance on behalf of alien recipients for both nonemergency services and services to treat alleviated emergencies, alike.
AHCA's reading of this statute, however, is clearly erroneous, which becomes apparent upon review of the whole subsection, whose meaning AHCA distorts by selective quotation. In its entirety, subsection (2) of section 409.902 provides as
follows:
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.
(Emphasis added). In its paraphrase of this subsection, AHCA substitutes the term "undocumented aliens" in place of "individuals who do not meet the requirements of this subsection." This switch subtly but materially alters the meaning of the statute because this subsection is subsection (2) of section 409.902, and subsection (2) is all about eligibility, not coverage. Thus, "individuals who do not meet the requirements of" subsection (2) are persons who are ineligible to receive Medicaid benefits. What paragraph (b) of subsection
says, therefore, when precisely paraphrased, is that medical assistance may not be provided to individuals who are ineligible for Medicaid due to their status as unlawfully admitted noncitizens. The exception to this categorical eligibility restriction is for aliens 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."
§ 409.904(4), Fla. Stat. (emphasis added).
This matters because DCF, not AHCA, is responsible for Medicaid eligibility determinations. § 409.902(1), Fla. Stat.12/ To determine the eligibility of an alien applicant, DCF must make several findings of ultimate fact, including whether the applicant has an emergency medical condition. If DCF determines that the applicant does not have an EMC, then the applicant is ineligible, and state funds may not be used to provide him
medical services. If, however, DCF determines that the applicant does, in fact, have an EMC, then he is eligible to receive medical assistance for all services necessary to treat that EMC (provided he meets the other eligibility criteria as well) for the duration of the EMC, which DCF must also determine. This obviously requires DCF to decide, as a matter of fact, when the EMC was reduced to a nonemergency condition, ending the period of the emergency——and with it, the recipient's eligibility.
There is no provision anywhere in chapter 409 that gives AHCA the authority to decide for itself whether the recipient had an EMC. AHCA has no more authority to do that than it does to determine for itself whether the recipient met all applicable technical (including residency) and financial requirements for a Medicaid coverage group or any other factor upon which eligibility rests. AHCA's assigned role is to determine the compensability of the services rendered to treat the EMC upon which DCF based the recipient's eligibility.
Consequently, it is appropriate for AHCA to determine whether, for example, the services for which payment is sought were medically necessary to treat the EMC. In carrying out this responsibility, however, AHCA must accept DCF's finding that the recipient's condition was an EMC, just as AHCA must accept all of DCF's other findings in support of eligibility, including the
duration of the EMC. It would be absurd if, after DCF determined an alien applicant was eligible on the basis of an EMC, AHCA could make a contrary finding of fact to reverse that determination and refuse all medical assistance.
It is important to recognize that when DCF approves an individual alien's application for medical assistance and issues that person a Medicaid card or other notice signifying that the person is a recipient, DCF is conferring a legal status upon that person which entitles him to receive benefits from providers for which Medicaid must pay. The application for medical assistance initiates a transaction between the applicant and DCF to which no one else is a party——not AHCA, not the providers. In this respect, the application for medical assistance is analogous to an application for licensure, and the issuance of a Medicaid card or other notice of approval is somewhat akin to the issuance of a license. The point is that once DCF confers recipient status on an applicant, AHCA (and the providers) must respect and accept that status, just as AHCA (and the providers) must respect and accept other legal credentials, such as professional licenses, which are conferred by governmental authorities having the power to issue them.
Indeed, this is such a basic proposition that it is set forth in the definition of the "Medicaid program" found in section 409.901(16), which, again, states:
(16) "Medicaid program" means the program
. . . 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
. . . to be eligible on the date of service for Medicaid assistance.
Every "service" that AHCA currently alleges resulted in an overpayment to Gulf Coast was rendered to a person whom DCF had determined to be eligible on the date of service for Medicaid assistance because DCF had found that the recipient had an EMC on that date and thus met the requirements of subsection (2) of section 409.902. AHCA is attempting to deny payment for these services, not because it has found any of them to have been excessive, medically unnecessary, or provided to treat some complaint other than the condition which DCF had found to be an EMC, but because it has determined that the recipient of such services, contrary to DCF's finding, did not have an EMC on the date of service and therefore, contrary to DCF's finding, did not meet the eligibility requirements of section 409.902(2) on the date of service.
Simply put, AHCA is shortening the period of the emergency for each recipient, relative to DCF's determination of that same period, to deny payment for medically necessary services provided to recipients who were in fact, by virtue of DCF's prior exercise of its exclusive power to grant Medicaid eligibility, legally entitled to receive Medicaid assistance on
the dates of service. There are no "separate and distinct legal standards" for deciding "service payment compensability" questions at work here, just the one and only definition of "emergency medical condition" as applied to the historical facts of each recipient's case to ascertain whether, as DCF found, the recipient had an EMC on the dates of service. Every alleged overpayment in this case reflects a disagreement with DCF as to the existence of an EMC on a particular date based upon a de novo review of the recipient's medical record.
As we have seen, an alien who does not have an EMC on a particular date is not eligible for Medicaid assistance on that date. AHCA's intended agency action here is tantamount to the retroactive revocation of each recipient's eligibility before the date his or her eligibility expired automatically pursuant to DCF's determination regarding the duration of the recipient's EMC.
This is a good place to pause for a review of the foregoing findings relating to the Undocumented Alien Project. Purportedly acting under the aegis of CMS, AHCA has undertaken a comprehensive audit of all previously adjudicated claims for emergency services received by alien recipients between mid-2005 and mid-2010, to make fresh findings as to (i) whether, as DCF found, each recipient had an EMC; and, for each one who in AHCA's judgment did, (ii) whether the emergency was "alleviated"
sometime during the DCF-determined "period of the emergency." The purpose of this retrospective review is to recoup, as overpayments, amounts disbursed for any and all services provided (i) to aliens who, in AHCA's view, never had an EMC or
(ii) after a recipient's AHCA-determined "date of alleviation."
AHCA relies upon SEAS as authority for disallowing payment for services after the date of alleviation, arguing that SEAS imposes an exclusion from coverage that resembles, but is distinct from, the eligibility restriction which limits alien recipient eligibility to the period of the emergency. AHCA's reliance upon SEAS is misplaced, however, because (i) the plain and unambiguous language of SEAS can reasonably be understood in only one sense, i.e., as a description of the requirements for, and the temporal limitation on, Medicaid eligibility for aliens; and, (ii) to the extent SEAS is susceptible of more than one reasonable interpretation and hence ambiguous, it must be construed as a description of the conditions of eligibility to avoid a conflict with federal law that would implicate the Supremacy Clause.
In substance and effect, AHCA is determining when a recipient's eligibility-enabling EMC was reduced to an eligibility-ending nonemergency medical condition, using the malleable term "alleviation" to create the plausible appearance that something else is going on. Nothing else is. AHCA's
insistence to the contrary notwithstanding, the Undocumented Alien Project is an effort to re-determine eligibility.
All of that having been said, we can turn our attention, at last, to the claims in dispute. The disputed claims relate to services provided to nine recipients who are identified by number for privacy's sake. The parties refer to them as Claim 1, Claim 3, etc. Here, going forward, they will be called R1, R3, R4, R15, R16, R18,13/ R19, R20, and R23.14/
AHCA's peer reviewers testified that R3, R16, R19, and R20 never had an emergency medical condition. Thus, AHCA seeks to deny assistance for all services rendered to these recipients. For R3 that would mean the denial of reimbursement for six days of hospitalization costing $7,856.52. For R16, a hospital bill of $3,874.89 for three days of services would be turned down. R19 and R20 had hospital stays of five days apiece, giving rise to two separate claims in the amount of
$6,544.10, both of which AHCA would refuse. In all, the total amount of alleged overpayments relating to this group of recipients, whom AHCA contends were not eligible for any medical assistance, is $24,819.61.
For R1, R4, R15, R18, and R23, the peers retained by AHCA determined that each recipient's EMC was "alleviated" before the date which DCF, in taking final action approving the recipient's application for Medicaid assistance, had found to be
the last day, in fact, of the period of the emergency that defined the duration of the recipient's eligibility. AHCA therefore seeks to deny assistance for all services provided post-"alleviation" to these eligible recipients. AHCA would deny payment of $5,237.68 on behalf of R1 for four days' hospitalization; $2,618.84 on behalf of R4 for two days' hospitalization; $9,041.41 on behalf of R15 for seven days' hospitalization; $3,874.89 on behalf of R18 for three days' hospitalization; and $1,309.42 on behalf of R23 for one day of hospitalization. In all, the total amount of alleged overpayments relating to this group of recipients, whom AHCA contends received post-"alleviation" care, is $22,082.24.
Determinations of Ultimate Fact
The opinions of the peer reviewers that R3, R16, R19, and R20 never had an emergency medical condition are rejected as irrelevant because DCF determined that each of these recipients did have an EMC that made it possible for him or her to be eligible for Medicaid assistance during the period of his or her emergency. Accordingly, each of these recipients met the requirements of section 409.902(2)(b), and state funds could be used to provide them medical services, as AHCA found when it
pre-authorized for payment all of Gulf Coast's claims for the services it rendered to these recipients. No overpayment was shown to have been made on behalf of R3, R16, R19, or R20.
The opinions of the peer reviewers that R1, R4, R15, R18, and R23 received post-"alleviation" treatment are rejected as irrelevant because (i) DCF determined that each of these recipients had an EMC that made it possible for him or her to be eligible for Medicaid assistance during the entire period of his or her emergency, which period in each case extended, by order of DCF, beyond the recipient's "date of alleviation" as identified much later by AHCA; and (ii) all of the alleged post- "alleviation" services were provided to a recipient who had been determined by DCF to be eligible on the date of service for Medicaid assistance.
Accordingly, R1, R4, R15, R18, and R23 met the requirements of sections 409.902(2)(b) and 409.904(4), and state funds could be used to provide them medical services, as AHCA found when it pre-authorized for payment all of Gulf Coast's claims for the services it rendered to these recipients. No overpayment was shown to have been made on behalf of R1, R4,
R15, R18, or R23.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has personal and subject matter jurisdiction in this proceeding pursuant to sections 120.569 and 120.57(1), Florida Statutes.
As the only state agency having the power to make payments for medical assistance under Medicaid, see section
409.902(1), AHCA must determine whether providers' claims are authorized to be paid. When it decides that a claim is payable (or not payable), AHCA is determining the substantial interests of the provider who submitted the claim.
It is not uncommon for the Agency to pay claims without first deciding on the merits whether the amounts disbursed are authorized to be paid by Medicaid. Such claims, having never been adjudicated, are subject to subsequent review, and if the Agency determines, after an audit of paid claims, that the provider received amounts not authorized to be paid, it can demand repayment.
The Agency is empowered to "recover overpayments and impose sanctions as appropriate." § 409.913, Fla. Stat. An "overpayment" includes "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. (emphasis added).
The provider may request a hearing if it disagrees with the Agency's demand for repayment of an alleged overpayment, and if there are disputed issues of material fact, a formal proceeding will be initiated at DOAH. The burden of establishing an alleged Medicaid overpayment by a preponderance of the evidence falls on the Agency. S. Medical Servs., Inc. v.
Ag. for Health Care Admin., 653 So. 2d 440, 441 (Fla. 3d DCA
1995); Southpointe Pharmacy v. Dep't of HRS, 596 So. 2d 106, 109 (Fla. 1st DCA 1992).
Typical recoupment proceedings of this nature eventually result in the entry of a final order requiring repayment, or concluding that there was no overpayment, depending on the particular findings of fact in the case. See,
e.g., Ag. for Health Care Admin. v. Viera, Case No. 14-1461MPI
(Fla. DOAH Apr. 10, 2015; AHCA May 5, 2015).
After appellate remedies have been exhausted or forgone, the final order resulting from the formal administrative proceeding to recoup an alleged overpayment is conclusive and binding as to the compensability of the claims involved. Thereafter, AHCA cannot institute a successive administrative proceeding to re-determine whether those same claims, if approved, were not authorized to be paid. S. Med.
Servs., 653 So. 2d at 441. Likewise, the provider cannot later
request a hearing to re-determine the compensability of claims that were denied by final agency action.
This is due to administrative finality, a doctrine which is analogous to res judicata and holds that "orders of administrative agencies must eventually pass out of the agency's control and become final and no longer subject to change or modification." Austin Tupler Trucking v. Hawkins, 377 So. 2d
679, 681 (Fla. 1979); Delray Med. Ctr. v. Ag. for Health Care
Admin., 5 So. 3d 26, 29 (Fla. 4th DCA 2009)("In the field of administrative law, the counterpart to res judicata is administrative finality."); see also Reedy Creek Utils. Co. v. Fla. Pub. Serv. Comm'n, 418 So. 2d 249, 254 (Fla. 1982)("An
underlying purpose of the doctrine of [administrative] finality is to protect those who rely on a judgment or ruling.").
As may be recalled, AHCA implemented a prior authorization program for hospital inpatient services in 2002 and, pursuant to that program, reviewed and determined the compensability of every claim at issue in this case prospectively, i.e., before it was presented for payment. As it happened, the Agency found on the merits, years before bringing this action, that all of the amounts for which Gulf Coast sought compensation were authorized to be paid by Medicaid. Each prior authorization of a claim constituted agency action. § 120.52(2), Fla. Stat. When the Agency actually paid the pre-approved claim, as it did every one of the claims at issue here, that agency action became final, because AHCA bound itself to a course of action which determined both parties' rights and obligations, consummating a free-form decision-making process.15/ See Save Our Creeks & Envtl. Confed'n of Sw. Fla. v. Fish & Wildlife Conser. Comm'n, 112 So.
3d 128, 130 (Fla. 1st DCA 2013); cf. Bennett v. Spear, 520 U.S.
154, 177-78, 117 S. Ct. 1154, 1168, 137 L. Ed. 2d 281, 305
(1997).
That AHCA might not have entered "proper orders" stating its final decisions with regard to the claims at issue is of no significance in this instance. Harris v. Fla. Real
Estate Comm'n, 358 So. 2d 1123, 1125 (Fla. 1st DCA 1978)(An agency "cannot be heard to assert that its own dispositive action was not taken with the formalities which are the agency's responsibility. [The] failure to enter a proper order, or to afford a hearing, is an occasion for judicial review, not an impediment of it."). There is no doubt whatsoever about AHCA's prior authorization and payment of the claims in question. See
Rice v. Dep't of HRS, 386 So. 2d 844, 847 (Fla. 1st DCA 1980). Further, because AHCA decided each of these claims in Gulf Coast's favor, the provider had no reason to request a hearing as to any determination; having gotten full satisfaction, there was no dispute, and nothing for Gulf Coast to gain.
AHCA makes two arguments against applying the doctrine of administrative finality as a bar to implementing its intended recoupment from Gulf Coast of the alleged overpayment at issue. First, it contends that the Agency's duty to maintain Medicaid program integrity would be seriously undermined if administrative finality prevented AHCA from auditing paid claims. Here, AHCA commits the Straw Man fallacy. Gulf Coast
does not suggest that administrative finality should bar the retrospective review of all paid claims; rather, it asserts that finality bars the reopening of all adjudicated paid claims, which were previously determined on the merits to be compensable. AHCA's critical oversight role is in no way diminished by holding it to one bite at the apple when it comes to taking final agency action on the question of whether a claim is authorized to be paid by Medicaid.
To be clear, though, when AHCA determines compensability for purposes of prior authorization, it is not expected simultaneously to investigate the provider for possible wrongdoing, such as fraud or misrepresentation, or to independently verify that all of the information submitted in support of the claim is fully accurate in every material respect. These matters, which are clearly distinguishable from the issues presented by the simple question of whether amounts claimed are authorized to be paid by Medicaid, are not fairly within the scope of AHCA's decision on prior authorization.
Gulf Coast does not contend, and the undersigned does not conclude, that prior authorization bars the Agency from investigating provider wrongdoing in connection with an adjudicated claim.
No such allegations, however, or anything remotely like them, have been made in this case, so it is not necessary
to identify every exception that might apply to the doctrine of finality as it relates to prior authorized Medicaid claims.
Instead, it is sufficient to point out that the conclusiveness of a prior authorization would not prevent the Agency from investigating and, if justified, prosecuting a provider for, e.g., fraud or misrepresentation in connection with the previously adjudicated claim. In arguing that application of the finality doctrine would cripple the Agency's ability to maintain program integrity, AHCA has attacked an exaggerated version of Gulf Coast's position.
Second, AHCA invokes the "changed circumstances" exception as grounds for escaping administrative finality. It is well established that "Florida courts do not apply the doctrine of administrative finality when there has been a significant change of circumstances or there is a demonstrated public interest." Delray Med. Ctr. v. Ag. for Health Care
Admin., 5 So. 3d 26, 29 (Fla. 4th DCA 2009). This exception,
however, is implicated most clearly, and typically applied, in situations involving a revised or updated application of some sort——such as for rezoning,16/ a certificate of need,17/ licensure,18/ or a permit19/——following an earlier failure to obtain agency approval. "Florida favors administrative hearings to develop and flesh out the differences between successive
administrative applications." Id. at 30. Needless to say, this
is not a case of successive applications.
AHCA argues that CMS's suggestion that AHCA should re- determine the eligibility of alien recipients to find grounds for making downward revisions to the state's FFP claims constitutes a change in circumstances precluding application of the finality doctrine. It does not. As found above, CMS's suggestion, intended to reduce the federal liability to the state for FFP, has nothing to do with whether amounts claimed by a provider are authorized to be paid by Florida Medicaid.
The facts relevant to a determination of the compensability of a Medicaid claim are historical facts relating to the past medical condition of an individual recipient and the services provided to treat that past condition, none of which can change. Furthermore, the compensability of such claims must be determined based on the law in effect at the time the services were provided, not on the law as it might subsequently have become. See Fla. Retail Fed'n v. Ag. for Health Care Admin., Case No. 04-1828RX, 2004 Fla. Div. Adm. Hear. LEXIS
2018, at 29 (Fla. DOAH July 19, 2004), per curiam aff'd, 903 So. 2d 939 (Fla. 1st DCA 2005)(table). In short, there can be no change of circumstances with regard to an adjudicated paid claim, for the facts and law are fixed in time.
Each prior authorization of the respective claims currently at issue amounted to a one-time adjudication of rights involving the application of the law that existed in 2007 (which governs these claims no matter what) to past facts (which remain static). In reality, the only thing that has changed is AHCA's newfound reliance on SEAS as a mandate for denying coverage for services provided after the "date of alleviation." As discussed at length above, however, SEAS merely describes what sections 409.902(2)(b) and 409.904(4) prescribe; it cannot reasonably be interpreted as a separate mandate. And even if SEAS were construable as a coverage exclusion (although it is not), SEAS was "in effect" in 2007 when the services at issue were provided, and therefore AHCA could have refused prior authorization based on SEAS; indeed, AHCA should have denied prior authorization if, as it now maintains, the amounts claimed were clearly not authorized under SEAS to be paid. If AHCA has belatedly discovered that, for whatever reasons, it had been misapplying, overlooking, or failing to use its own rule (SEAS), such a realization is not a changed circumstance that justifies reopening final decisions which the Agency now believes were incorrect.
It is concluded that the "changed circumstances" exception does not apply. Administrative finality operates as a bar to this attempt by the Agency to recover from Gulf Coast, as
an overpayment, amounts that AHCA previously determined, on the merits, were authorized to be paid, and then, taking action on these decisions, paid to Gulf Coast.
There is a related but separate basis for concluding that this proceeding to recoup prior authorized amounts is barred, which is found in section 409.905(5)(a), the statutory provision allowing AHCA to pre-approve hospitals' claims. The statute provides that "[u]pon implementing the prior authorization program for hospital inpatient services, the agency shall discontinue its hospital retrospective review program." As found, AHCA implemented a prior authorization program some years before the services at issue were provided. Further, the Undocumented Alien Project is clearly a retrospective review program. The plain language of the statute prohibits AHCA from retrospectively reviewing prior authorized claims to determine whether they were authorized to be paid, and therefore the Undocumented Alien Project is impermissible as a matter of law.
AHCA contends that the Undocumented Alien Project is not the hospital retrospective review program to which the statute refers. Because the Undocumented Alien Project had not yet come into being at the time section 409.905(5)(a) was enacted, and had yet to be devised when the prior authorization program was implemented, AHCA's assertion is literally true.
The statute, however, cannot reasonably be understood to refer only to the particular hospital retrospective review program that happened to be in place at the moment AHCA implemented its prior authorization program. That would be absurd. Under such a construction, AHCA could circumvent the statutory prohibition simply by discontinuing the hospital retrospective review program and starting up the next hospital retrospective review program.
Obviously, section 409.905(5)(a) directs the Agency to forgo any program whose purpose is to conduct retrospective reviews of claims for hospital inpatient services that were already approved pursuant to the prior authorization program. The Undocumented Alien Project is such a program.
AHCA argues, additionally, that section 409.905(5)(a) cannot be construed to prohibit the Undocumented Alien Project, which the Office of Medicaid Program Integrity administers, because such an interpretation of the statute would interfere with AHCA's ability to perform its responsibilities under section 409.913 to oversee the Medicaid program and recover overpayments. AHCA, however, again ignores the huge difference between (i) reviewing for the first time paid claims that were merely assumed, but never determined, to be compensable, in order to initially, albeit retrospectively, adjudicate the issue of compensability with respect to such claims; and
(ii) disregarding prior final agency actions that found paid claims to be compensable in order to re-review those same claims for the purpose of retrospectively re-adjudicating the issue of compensability with respect to them. Section 409.905(5)(a) unambiguously prohibits the latter, not the former, and applying the statue as written (in addition to being the only legally correct option) will not compromise the Agency's ability to oversee Medicaid program integrity.
It is concluded that section 409.905(5)(a) bars this proceeding to recoup prior authorized amounts from Gulf Coast.
Assuming, however, that neither administrative finality nor section 409.905(5)(a) operates as a bar to this action, there are alternate grounds for denying AHCA's demand for repayment, which arise from the fact that, in reality, AHCA is attempting to re-determine eligibility.
To begin with a brief review, the bottom line is that under to the Undocumented Alien Project, AHCA is determining for itself (i) whether each alien recipient actually had an eligibility-enabling EMC, and (ii) with respect to each such EMC recognized, the date upon which the recipient's complaint went from being an EMC to an eligibility-ending nonemergency medical condition. These very questions, as we have seen, were previously and conclusively resolved by DCF, the only agency having the authority to determine Medicaid eligibility. See
§ 409.902(1), Fla. Stat. DCF necessarily found as a matter of ultimate fact that each recipient had a qualifying EMC and that the EMC lasted for a specific period of time comprising the dates of the recipient's eligibility. These findings were part and parcel of the final agency action taken on each recipient's application for medical assistance. Under the doctrine of administrative finality, discussed above, DCF cannot revisit and re-determine its decisions respecting the eligibility of these recipients.
AHCA is now trying to do what DCF itself could not accomplish. Unlike DCF, however, AHCA does not even have jurisdiction to define or decide eligibility. Booker Creek
Pres., Inc. v. Sw. Fla. Water Mgmt. Dist., 534 So. 2d 419, 424 (Fla. 5th DCA 1988)(One agency may not exercise jurisdiction that has been delegated to another state agency). Such a lack of jurisdiction could not be cured by a rule, for AHCA cannot confer regulatory jurisdiction upon itself. See Saddlebrook
Resorts v. Wiregrass Ranch, 630 So. 2d 1123, 1128 (Fla. 2d DCA 1993)("An agency cannot enlarge, reduce, or modify its jurisdiction by its own action. . . . Since an agency cannot confer jurisdiction upon itself, the adoption of an agency rule should have no effect upon jurisdiction."), aff'd, 645 So. 2d
374 (Fla. 1994). AHCA does not have the authority, therefore, to recover as an overpayment amounts paid for medically
necessary emergency services provided to an alien recipient who, according to DCF, was eligible on the dates of service for Medicaid assistance.
That AHCA is attempting to exercise jurisdiction it does not possess is seen most easily in relation to R3, R16, R19, and R20, the recipients who, by AHCA's lights, never had an EMC. Having an emergency medical condition is a sine qua
non for alien eligibility. Therefore, AHCA's position that these recipients never had EMCs is in direct and irreconcilable conflict with DCF's eligibility determinations, which necessarily held that each of them did have an EMC.
Agreeing with AHCA would be tantamount to reversing DCF's eligibility determinations and retroactively deeming R3, R16, R19, and R20 ineligible for assistance. Clearly that cannot be done. The Agency's demand for repayment of the $24,819.61 paid to Gulf Coast for providing services to these recipients is patently ultra vires.
With respect to the remaining recipients, AHCA's re- determination of eligibility is somewhat more difficult to observe, due to the alleviation smokescreen. As explained above, however, when it comes to it, all AHCA is doing is re- defining these recipients' respective eligibility periods by deciding they had nonemergency conditions as of their "dates of alleviation." Agreeing with AHCA would not reverse DCF's
decisions that R1, R4, R15, R18, and R23 were eligible, but it would in effect retroactively revoke the eligibility of each of these recipients, leaving them with fewer days of eligibility than DCF had granted. That, too, would be ultra vires.
Viewing AHCA's proposed agency action from a slightly different angle, it can fairly be characterized as a collateral attack on the final actions taken by DCF in granting the recipients' applications for medical assistance. This is because AHCA's position necessarily implies that DCF erred
in determining that R3, R16, R19, and R20 had EMCs and
in determining that the periods of R1, R4, R15, R18, and R23's emergencies lasted as long as DCF found they did. Neither AHCA nor this Administrative Law Judge, however, has "collateral review power over final agency action taken after regular proceedings under other provisions of the [Administrative Procedure] Act." Dep't of HRS v. Barr, 359 So. 2d 503, 505
(Fla. 1st DCA 1978). Thus, AHCA's intended action cannot lawfully be implemented.
This common law arrest of collateral action is codified in section 409.907(5)(b), which states that AHCA is "prohibited from demanding repayment from the provider in any instance in which the Medicaid overpayment is attributable to agency error in the determination of eligibility of a recipient." Here, DCF determined that R1, R3, R4, R15, R16,
R18, R19, R20, and R23 were each eligible for Medicaid assistance on the dates that Gulf Coast treated them. Section 409.907(5)(b) assures providers such as Gulf Coast that they can rely upon DCF's eligibility determinations.
AHCA is demanding that Gulf Coast repay an alleged overpayment that would be, if AHCA's theory of the case were credited, attributable to findings establishing (retroactively) that R1, R3, R4, R15, R16, R18, R19, R20, and R23 were not eligible on the dates of service after all, contrary to DCF's determinations, which could only mean that DCF had erred. Section 409.907(5)(b) prohibits the Agency from recouping such an overpayment and thus forecloses this action.
If this proceeding were not doomed to fail for one or more of the multiple grounds set forth above, however, then the question for decision——presented de novo——would be whether the claims at issue were authorized to be paid by Medicaid. To arrive at an alternative ratio decidendi, the undersigned will examine this question.
The compensability of each claim can be determined according to a linear analysis, taking up several issues in sequence: (1) Was the alleged overpayment not only for a medical service, but also made on behalf of a person who had been determined by DCF to be eligible on the date of service for Medicaid assistance? (2) Did the alleged overpayment go toward
a medical service within Medicaid's coverage provisions?
Does the medical service for which the alleged overpayment was made fall within an exclusion from Medicaid's coverage provisions? If the answers-sequence is NO-N/A-N/A, YES-NO-N/A, or YES–YES-YES, then AHCA has proved the alleged overpayment. If, on the other hand, the answers are YES-YES-NO, then the amount in question was authorized to be paid by Medicaid, and AHCA has failed to prove the alleged overpayment.
The first question is easily answered YES for every claim. It is undisputed that each recipient was, according to DCF, eligible for Medicaid assistance on each date of service at issue, and that the alleged overpayments were for medical services.
As for the second question, "services [which] are necessary to treat an emergency medical condition" fall within the scope of Medicaid's coverage. § 409.902(2)(b), Fla. Stat. Having an "emergency medical condition" as that term is defined in section 409.901(10)(a) is a necessary condition of Medicaid eligibility for aliens. An alien can have an EMC and not be eligible, but he cannot be eligible and not have an EMC. Thus, the undisputed fact that each recipient was eligible on the date of each service conclusively establishes that each recipient had an emergency medical condition on the date of each service.
AHCA has neither alleged nor attempted to prove that any of the services in question were provided to treat a complaint other than the condition which DCF determined was sufficient to satisfy the EMC requirement for alien eligibility. AHCA concedes, moreover, that all of the services were medically necessary. Thus, all of the services at issue were necessary to treat an EMC. The second question must be answered YES.
Plainly, then, the services under consideration are covered unless they fall within an exclusion. AHCA contends that they do, based on SEAS, which, as AHCA reads it, excludes from coverage services necessary to treat an emergency medical condition if provided after the emergency has been alleviated. For reasons already discussed, the undersigned rejects AHCA's argument that SEAS is an independent exclusionary provision and concludes instead that SEAS merely describes the conditions of eligibility established elsewhere, in the statutes.
The undersigned finds additional support for this conclusion in the well-established principles, widely followed in construing insurance policies, that ambiguities are to be strictly construed against the insurer, and that "exclusionary clauses are to be construed even more strictly than coverage clauses." State Comprehensive Health Ass'n v. Carmichael, 706 So. 2d 319, 320 (Fla. 4th DCA 1997). "When an insurer fails to define a term in a policy," especially a term in an exclusion,
"the insurer cannot take the position that there should be a 'narrow, restrictive interpretation of the coverage provided.'" Id. at 320-21.
As the drafter of SEAS, AHCA had the ability to define "alleviated" and to include specifically within that definition emergency medical conditions which have been lessened or made more bearable but remain EMCs as defined in section 409.901(10)(a).20/ It did not do so. If SEAS were susceptible of more than one reasonable interpretation, AHCA's failure to draft a clear exclusion would be one more reason to reject AHCA's contention that SEAS excludes post-"alleviation" services necessary to treat an existing and ongoing emergency medical condition, in favor of an interpretation under which "alleviated" means "lessened to a nonemergency."
It is concluded that none of the services falls within an exclusion. The answer to question number three, therefore, is NO.
Because the sequence of answers is YES-YES-NO, it is concluded that the amounts in question were authorized to be paid by Medicaid, and AHCA has failed to prove the alleged overpayment.
Gulf Coast has urged several additional grounds for avoiding overpayment liability, but the undersigned finds it unnecessary to reach them. One, however, deserves mention, and
that is Gulf Coast's contention that this administrative proceeding to recoup an alleged Medicaid overpayment is time- barred under one of the statutes of limitations found in chapter 95, Florida Statutes.
This is an interesting and close question of first impression, and it would be useful to have an authoritative decision on the subject. The undersigned has elected to punt the issue this time, however, inasmuch as he would rather address the question in a case where there are not a half-dozen or so other, separate grounds for finding the provider not liable as alleged.
If it comes to pass that the only thing standing between AHCA and Gulf Coast's $46,901.85 is the statute of limitations, the court is better suited anyway to decide the purely legal questions of whether proceedings such as this one are subject to chapter 95, and if so, what the limitation period is. Although it might be necessary, in the event the statute were held to apply, to conduct a hearing on remand to resolve some specific factual dispute(s) for the purpose of determining whether the action was timely initiated, such a narrowly focused proceeding could be accomplished in relatively short order.
In sum, Gulf Coast's statute of limitations defense raises a legitimate issue, but because the undersigned believes he can add little value, if any, to this case by throwing in his
two cents' worth on the limitations question, it has been assumed, without deciding, that this proceeding is not time- barred.
Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that AHCA enter a final order adjudicating Gulf Coast not liable for the overpayment, or any part thereof, alleged in the Final Agency Audit Report dated February 26, 2015.
DONE AND ENTERED this 26th day of January, 2016, in Tallahassee, Leon County, Florida.
S
JOHN G. VAN LANINGHAM
Administrative Law Judge
Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-3060
(850) 488-9675 SUNCOM 278-9675
Fax Filing (850) 921-6847 www.doah.state.fl.us
Filed with the Clerk of the Division of Administrative Hearings this 26th day of January, 2016
ENDNOTES
1/ Some of the facts of this case are better understood when presented in the context of the legal environment which the
parties inhabit. As a result, there are findings herein that are difficult to classify as either strictly factual or strictly legal in nature. If the undersigned has breached the dichotomy between fact and law, it was only to organize the material in a way which, hopefully, improves readability and facilitates comprehension.
2/ None of the disputed claims involves prenatal or other pregnancy related services.
3/ Section 409.901(10)(b), Florida Statutes, describes the situations that constitute an emergency medical condition with respect to a pregnant woman.
4/ § 409.902(2)(b), Fla. Stat.
5/ § 409.904(4), Fla. Stat.
6/ As used by DCF here, the term URC refers to a group affiliated with a hospital that determines an individual's need for emergency treatment.
7/ In contrast, providers whose claims are paid without prior authorization, as most Medicaid claims are, must be prepared to protect their substantial interests in the future, in the event AHCA performs an audit to determine whether previously paid claims were for covered goods or services, at which time the question of compensability, having never been determined, is adjudicated retrospectively.
8/ Similarly, the point of alleviation logically must come after the EMC begins.
9/ Mann v. Goodyear Tire & Rubber Co., 300 So. 2d 666, 668 (Fla. 1974)(footnotes omitted); see also, e.g., Mehl v. State, 632 So. 2d 593, 595 (Fla. 1993)(separate statutory provisions that are in pari materia should be construed to express a unified legislative purpose); Lincoln v. Fla. Parole Comm'n, 643 So. 2d 668, 671 (Fla. 1st DCA 1994)(statutes on same subject and having same general purpose should be construed in pari materia).
10/ To remove any doubt about this, consider what the third sentence would say if the term "emergency services" were used in place of "continuous or episodic services." The implication of such an odd locution would be that the alleviation of an emergency does not necessarily obviate the need for emergency
services, which would force the reader to think of "alleviated emergencies" and "existing emergencies" as intersecting rather than disjoint sets. This imaginary sentence thus would convey an entirely different meaning from the actual third sentence. But if SEAS's drafters had intended to say that Medicaid will not pay for "emergency services" after the emergency has been alleviated, which is the policy AHCA seeks now to enforce, they would surely have written "emergency services" in the third sentence instead of the distinctive and dissimilar term "continuous or episodic services."
11/ It is probably worth noting that the cessation of an emergency medical condition is not the same as a full, substantial, or even partial recovery. All emergency medical conditions are medical conditions, but not all medical conditions are emergency medical conditions. A recipient whose EMC has ended is, by definition, no longer in need of immediate medical attention to avert the reasonable likelihood of suffering serious harm if untreated, but he is not necessarily, or even probably, sufficiently improved that no further medical care is required for his ongoing, yet no longer imminently dangerous, condition. To say that an EMC has terminated, therefore, is merely to say that the recipient's medical condition is not an emergency any more.
12/ It follows, therefore, that sections 409.902(2) and 409.904(4), which relate to Medicaid eligibility determinations, are within DCF's substantive jurisdiction for purposes of section 120.57(1)(l), Florida Statutes, not AHCA's.
13/ For reasons that are not important, the parties call this patient "Claim 17/18."
14/ Originally, the Agency alleged that overpayments had been made on behalf of R5 and R13, but at hearing reversed itself as to these recipients and retracted the allegations pertaining to them. Therefore, the claims involving services to R5 and R13 are not in dispute and need not be considered.
15/ Note the difference between, on the one hand, a prior authorized claim, where an agency decision on the merits is made regarding compensability before the claim is paid, and a "regular" claim, on the other hand, which is paid on the assumption of compensability, saving for later the merits decision on that issue.
16/ Miller v. Booth, 702 So. 2d 290, 291 (Fla. 3d DCA 1997).
17/ Delray Med. Ctr., 5 So. 3d at 30.
18/ Univ. Hosp. v. Ag. for Health Care Admin., 697 So. 2d 909, 912 (Fla. 1st DCA 1997).
19/ Thomson v. Dep't of Envtl. Reg., 511 So. 2d 989, 991 (Fla. 1987).
20/ By "ability" the undersigned means only to acknowledge the reality that AHCA controls the contents of the Handbook. No opinion is being expressed, one way or the other, as to whether AHCA has rulemaking authority to exclude coverage for medically necessary emergency services and care provided to an alien recipient who is suffering from an emergency medical condition.
COPIES FURNISHED:
Joseph M. Goldstein, Esquire Jacqueline Howe, Esquire Shutts and Bowen LLC
200 East Broward Boulevard, Suite 2100 Fort Lauderdale, Florida 33301 (eServed)
Daniel Elden Nordby, Esquire Shutts and Bowen LLP
215 South Monroe Street, Suite 804 Tallahassee, Florida 32301 (eServed)
Joanne Barbara Erde, Esquire Donna Holshouser Stinson, Esquire Duane Morris LLP
200 South Biscayne Boulevard, Suite 3400 Miami, Florida 33131
(eServed)
Richard J. Shoop, Agency Clerk
Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3
Tallahassee, Florida 32308 (eServed)
Stuart F. Williams, General Counsel Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3
Tallahassee, Florida 32308 (eServed)
Elizabeth Dudek, Secretary
Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 1
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 |
|---|---|---|
| Apr. 04, 2016 | Agency Final Order | |
| Jan. 26, 2016 | Recommended Order | Sums paid on behalf of eligible aliens for emergency services provided by Respondent did not constitute an overpayment because the services were covered by Medicaid, as Petitioner had determined originally when it gave prior authorization to the claims. |
