STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
AGENCY FOR HEALTH CARE ADMINISTRATION,
Petitioner,
vs.
HOSPICE OF THE FLORIDA SUNCOAST, d/b/a SUNCOAST HOSPICE,
Respondent.
/
Case No. 18-0492MPI
RECOMMENDED ORDER
Administrative Law Judge D. R. Alexander conducted a final hearing in this matter on July 9 through 13 and July 30 through August 3, 2018, in Tallahassee, Florida.
APPEARANCES
For Petitioner: Joseph G. Hern, Jr., Esquire
Kevin D. Dewar, Esquire Gregory Warner, Esquire Kimberly S. Murray, Esquire
Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3
Tallahassee, Florida 32308-5407
For Respondent: Bryan K. Nowicki, Esquire
Joshua D. Taggatz, Esquire Reinhart Boerner Van Deuren S.C. Suite 600
22 East Mifflin Street Madison, Wisconsin 53701-2018
STATEMENT OF THE ISSUES
The issues are (1) whether the Agency for Health Care Administration (AHCA) is entitled to recover certain Medicaid payments that it made to Respondent, Hospice of the Florida Suncoast, Inc., d/b/a Suncoast Hospice (Suncoast), pursuant to section 409.913(11), Florida Statutes, for hospice services provided during the audit period, September 1, 2009, through December 31, 2012; and (2) if overpayments were made, the amount of sanctions, if any, that should be imposed against Suncoast pursuant to section 409.913(15) through (17).
PRELIMINARY STATEMENT
On December 14, 2017, AHCA issued a Final Audit Report (FAR) in which it asserted that Suncoast, a Medicaid provider, had been overpaid $1,768,952.79 for services performed from September 1, 2009, through December 31, 2012, that in whole or in part are not covered by Medicaid. The FAR also sought to impose an administrative fine of $353,790.56 as a sanction for violating Florida Administrative Code Rule 59G-9.070(7)(e) and to recoup investigative, legal, and expert witness costs. Suncoast timely requested a hearing and the matter was referred by AHCA to the Division of Administrative Hearings to resolve the dispute.
At the hearing, AHCA presented the testimony of five witnesses, including one who testified by video teleconference at a site in Lauderdale Lakes. Suncoast presented the testimony of
two witnesses. Joint Exhibits 1 through 239 were accepted in evidence.
A 20-volume Transcript of the hearing was filed on February 18, 2019. The final versions of proposed recommended orders were filed on April 10, 2019, and they have been considered in the preparation of this Recommended Order.
FINDINGS OF FACT
The Parties
AHCA is designated as the state agency responsible for administering the Florida Medicaid Program. § 409.902, Fla. Stat. Medicaid is a joint federal/state program to provide health care and related services to certain qualified individuals.
Suncoast is a non-profit provider of hospice and end-of- life services in Pinellas County and is headquartered in Clearwater.1/ During the audit period, September 1, 2009, through December 31, 2012, Suncoast was enrolled as a Medicaid provider and had a valid Medicaid provider agreement with AHCA.
The Medicaid Audit Process
AHCA is authorized to recover Medicaid overpayments, as deemed appropriate. § 409.913, Fla. Stat. In this case, AHCA is defending a review conducted by federal government contractors and acting on behalf of the federal government.
The United States Department of Health & Human Services, Centers for Medicare and Medicaid Services (CMS), contracted with Health Integrity, LLC, a private vendor, now known as Qlarant, to perform an audit of Suncoast, along with 31 other hospices in Florida. The audit used Generally Accepted Government Auditing Standards. Qlarant in turn retained a peer review organization, Advanced Medical Reviews (AMR), to provide physician peer reviews of claims in order to determine whether an audited claim was eligible for payment.
The purpose of the audit was to determine whether recipients met eligibility requirements for hospice services during the period September 1, 2009, through December 31, 2012. To further define the scope of the audit, Qlarant selected recipients who had received hospice services in excess of
182 days. Qlarant also excluded any recipients with at least one malignancy (cancer) primary diagnosis with a date of death less than one year from the first date of service by Suncoast, and recipients who were eligible for both Medicare and Medicaid.
When these limitations were applied, Qlarant identified
96 Suncoast recipients for review.
The recipients' medical records first were reviewed by a Qlarant claims analyst, who is a registered nurse. If the analyst determined that a recipient clearly was eligible for
Medicaid hospice services, the analyst would approve the file and remove it from further consideration.
If the analyst had questions or concerns about a particular file, it would be set aside for peer review by a qualified physician who would make the ultimate determination with regard to the medical necessity of the hospice services provided. In this case, 45 recipient files were selected for review by an AMR peer review physician who made a determination with regard to medical necessity.
After the peer review physicians reviewed the 45 files, they determined that 26 recipients were ineligible for Medicaid hospice services and 19 recipients were partially ineligible.
Qlarant prepared a Draft Audit Report (DAR), which identified overpayments of Medicaid claims totaling
$2,129,479.65, relating to the 45 recipients.
On November 4, 2016, Qlarant forwarded the DAR to Suncoast for comment and response. Suncoast contested the entire amount. Its response was forwarded to the peer physicians, who then revised their opinions and reduced the number of recipients in dispute to 38.
Qlarant prepared and issued an FAR, which upheld the overpayments as to the 38 recipients. The FAR sets forth the peer review physicians' basis for determining why each of the
38 recipients at issue was not eligible for Medicaid hospice
services. The FAR was provided to CMS, who submitted it to AHCA with instructions for AHCA to initiate the state recovery process and to furnish a copy to Suncoast. During the hearing, AHCA withdrew its objection to recipients 7 and 14. Therefore,
36 recipients are at issue.
The Florida Medicaid Hospice Services Coverage and Limitations Handbook, the January 2007 edition (Handbook), as incorporated by reference in rule 59G-4.140, governs whether a service is medically necessary and meets the certification requirements for hospice services. AHCA, through Qlarant, instructed each peer review physician to review the criteria set forth in the Handbook to determine whether services provided to a recipient are eligible for Medicaid coverage.
To qualify for the Medicaid hospice program, all recipients must:
Be eligible for Medicaid hospice;
Be certified by a physician as terminally ill with a life expectancy of six months or less if the disease runs its normal course;
Voluntarily elect hospice care for the terminal illness;
Sign and date a statement electing hospice care;
Disenroll as a participant in a Medicaid or Medicare health maintenance organization (HMO), MediPass, Provider Service Network (PSN), Medicaid Exclusive Provider
Organization, MediPass Pilot Programs or the Children's Medical Services Network;
Disenroll as a participant in Project AIDS Care; and
Disenroll as a participant in the Nursing Home Diversion Waiver.
Further, the Handbook requires that:
For each period of hospice coverage, the hospice must obtain written certification from a physician indicating that the recipient is terminally ill and has a life expectancy of six months or less if the terminal illness progresses at its normal course.
The initial certification must be signed by the medical director of the hospice or a physician member of the hospice team and the recipient's attending physician (if the recipient has an attending physician).
For the second and subsequent election periods, the certification is required to be signed by either the hospice medical director or the physician member of the hospice team.
Certification documentation requirements used by the peer review physicians are as follows:
Documentation to support the terminal prognosis must accompany the initial certification of terminal illness. This documentation must be on file in the recipient's hospice record. The documentation must include, where applicable, the following:
Terminal diagnosis with life expectancy of six months or less if the terminal illness progresses at its normal course;
Serial physician assessments, laboratory, radiological, or other studies;
Clinical progression of the terminal disease;
Recent impaired nutritional status related to the terminal process;
Recent decline in functional status; and
Specific documentation that indicates that the recipient has entered an end-stage of a chronic disease.
The Medicaid hospice provider must provide a written certification of eligibility for hospice services for each recipient. The certification also is required for each election period. A recipient may elect to receive hospice services for one or more of the election periods. The election periods include: an initial 90-day period; a subsequent 90-day period; and subsequent 60-day time periods.
The Handbook also explains:
The first 90 days of hospice care is considered the initial hospice election period.
For the initial period, the hospice must obtain written certification statements from a hospice physician and the recipient's attending physician, if the recipient has an attending physician, no later than two calendar days after the period begins. An exception is if the hospice is unable to obtain written certification, the hospice must obtain verbal certification within two days following initiation of hospice care, with a written certification obtained before billing for hospice care.
If these requirements are not met, Medicaid will not reimburse for the days prior to the certification. Instead, reimbursement will begin with the date verbal certification is obtained.
. . . and . . .
For the subsequent election periods, written certification from the hospice medical director or physician member of the interdisciplinary group is required.
If written certification is not obtained before the new election period begins, the hospice must obtain a verbal certification statement no later than two calendar days after the first day of each period from the hospice medical director or physician member of the hospice's interdisciplinary group.
A written certification must be on file in the recipient's record prior to billing hospice services.
Supporting medical documentation must be maintained by the hospice in the recipient's medical record.
Peer Review Physicians
The three peer reviewers assigned to review claims in this matter were Florida licensed physicians, in active practice, who were matched to "the maximum extent possible, of the same specialty or subspecialty" of Suncoast's physicians.
§ 409.9131(2)(c), Fla. Stat.
Dr. Todd Eisner is an expert in internal medicine and gastroenterology. He treats patients with liver disease daily as part of his practice and has seen thousands of patients with
liver disease during his career. Dr. Eisner understands what factors properly are considered when estimating a recipient's life expectancy. He reviewed and rendered an opinion as to the hospice eligibility of four recipients.
Dr. Ibrahim Saad is an expert in internal medicine and is board-certified in that field. He treats recipients with a variety of illnesses including, but not limited to, cancer, heart disease, AIDS/HIV, chronic liver disease, and respiratory disease. He routinely makes prognoses related to whether a recipient has a terminal disease. He reviewed and rendered an opinion as to the eligibility of 15 recipients.
Dr. Patrick Weston is an expert in internal medicine and cardiology. He evaluates and treats recipients with a variety of illnesses including, but not limited to, cancer, heart disease, AIDS/HIV, chronic liver disease, and respiratory disease. He routinely makes prognoses related to whether a recipient has a terminal disease. Dr. Weston reviewed and rendered an opinion as to 19 recipients.
In performing their peer reviews, the doctors used their clinical experience, generally accepted medical standards, and the eligibility standards in the Handbook.
Suncoast contends the AHCA peers were not qualified because they were not board-certified in hospice and palliative medicine. However, the record shows that many of the Suncoast
physicians who certified, recertified, or treated the recipients in dispute likewise were not certified in that specialty. Also, the majority of the hospice physicians who treated the recipients were internists and family medicine physicians. The undersigned finds that each peer review physician was qualified to render an opinion on the eligibility of the respective recipients.2/
Suncoast Medical Witness
Suncoast offered one expert at hearing, Dr. Wehr. She has been employed by Suncoast continuously since 2006 and treated some of the recipients during their time in hospice care at Suncoast. Dr. Wehr is board-certified in hospice and palliative medicine and internal medicine. In 2015, she was promoted to Suncoast's medical director. Currently, she works part-time for Suncoast and no longer is seeing patients.
Over her long career, Dr. Wehr has assessed thousands of patients to determine whether they have a six-month life expectancy and whether they qualify for hospice care.
Specific Patient Review
The hospice service claims relate to 36 patients, who are identified as recipients 2, 3, 4, 5, 6, 8, 9, 10, 11, 12, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 26, 27, 29, 30, 33, 34, 35, 36, 37, 38, 39, 40, 42, 43, 44, and 45. The parties' experts
offered sharply conflicting testimony concerning the eligibility of each recipient. Except where noted below, these conflicts have been resolved in AHCA's favor.
Recipient 2
BJ was a 19-year-old female with an assigned diagnosis of HIV. The dates in dispute are March 11, 2010, to June 7, 2010, and June 9, 2010, to November 23, 2010.
Laboratory studies that physicians regularly will review to assess a recipient with HIV/AIDS include a CD4 count and a viral load. At the time of her admission to hospice, BJ had a viral load of 49,000 and a history of non-compliance with her antiretroviral medications. She had a normal
nutritional status as evidenced by her albumin level of 3.0 and above during the relevant period.
BJ also had a relatively high Palliative Performance Score (PPS) of 70 percent, which showed that she was mobile and able to complete her Activities of Daily Living (ADLs). (A PPS score of 100 percent would mean the patient is fully ambulatory and healthy, while every decrease in the score would represent a decrease in physical function.) Additionally, she was able to live alone which is indicative of her high functioning status. As a result of her functional status and nutritional status,
BJ was not terminal and was not appropriate for hospice during this period.
The greater weight of the evidence supports a finding that BJ was not eligible for hospice services for the period of March 11, 2010, to June 7, 2010, and June 9, 2010, to
November 23, 2010. Therefore, AHCA is entitled to recover an overpayment amount of $44,190.69.
Recipient 3
AK was a 51-year-old female at the time she was admitted to hospice on August 31, 2011. Suncoast assigned a terminal diagnosis of alcoholic cirrhosis. The period in dispute is August 31, 2011, through June 22, 2012.
The laboratory reports for AK do not support a terminal prognosis. Her albumin level, a protein made by the liver and a valuable tool in assessing the function of the liver, was 3.0 on August 29, 2011, just prior to the beginning of the hospice stay. This is a low level, but not an uncommon one for someone with liver disease. By the end of the hospice stay, her albumin was reported at a normal level of 3.5. In addition, while other liver function tests, such as amylase and lipases, initially were somewhat elevated, they soon moved into the normal range. Some other tests for anemia, very common in liver disease patients, were only mildly abnormal. AK also had a normal ammonia level and no signs of hepatic encephalopathy. That condition is very common in end-stage liver disease and was absent here.
AK weighed 120 pounds at the time of admission. Her weight remained relatively stable throughout the admission period. There was no evidence of impaired nutritional status related to a terminal process and no decline in functional status. In fact, her PPS and Karnofsky scores steadily increased.3/ In addition, the record showed that AK was ambulatory, could go shopping, walk her dog, go fishing, and was independent in all of the ADLs.
Taken as a whole, the evidence fails to show that AK had end-stage liver disease either at initial admission or at any point during the hospice stay. In fact, near the end of the benefit period, Suncoast discharged her for extended prognosis.
The greater weight of the evidence supports a finding that AK was not eligible for hospice services for the period of August 31, 2011, through June 22, 2012. Therefore, AHCA is entitled to recover an overpayment amount of $42,365.81.
Recipient 4
GC was a 55-year-old male at the time of first admission to Suncoast in September 2009, with a terminal diagnosis of malignant neoplasm of prostate (metastatic prostate cancer). The dates in dispute are September 3, 2009, through August 30, 2010.
GC's laboratory reports document an improvement in his tumor markers. His prostate cancer was being treated with
chemotherapy when he was admitted to hospice, and he continued receiving chemotherapy during his hospice admission until late May or June 2010. Chemotherapy can slow down the normal progression of metastatic prostate cancer.
GC's weight remained stable and actually increased throughout the disputed hospice period. This demonstrates he did not have an impaired nutritional status related to a terminal process.
GC's functional status also was stable throughout the disputed hospice period. The medical record reflects that he helped his son in the son's roofing business, including working with tar on the ground, maintained a boat in his backyard and went out on his boat, and planted and maintained a garden in his backyard. GC's functional status scores/measures and his daily activities throughout the disputed hospice period demonstrate his functional status was stable.
The greater weight of the evidence supports a finding that GC was not eligible for hospice services for the period of September 3, 2009, through August 30, 2010. Therefore, AHCA is entitled to recover an overpayment amount of $52,292.31.
Recipient 5
HM was a 60-year-old male upon admission to Suncoast on August 16, 2007, prior to the audit period, with a terminal diagnosis of HIV. He had been HIV positive for 20 years. The
period in dispute is September 1, 2009 (the first day the audit applied) through March 21, 2010. HM was in hospice care for two years before the audit period began.
In August 2009, just prior to the review period, HM had an undetectable viral load, which is a solid indication that his virus was being controlled by antiretroviral medication. While his CD4 count at that time was low, it had been lower in the pre- audit period and therefore was improving. CD4 counts also are positively impacted by antiretroviral medication.
There was no clinical progression of the condition during the period under review. It was not until HM suffered a fall in the spring of 2010 that his condition deteriorated greatly. During this period, which was approved by the auditors, his CD4 count was extremely low; he suffered and was treated for upper respiratory infection; he became non-compliant with his medication; and he was cachexic (losing weight). Only after 27 years of the condition and three years of hospice care did he enter the terminal phase of the disease.
There was no impairment of HM's nutritional status in the disallowed period. His functional capacity also was improved during the benefit period under review when compared with the two years of hospice care preceding the audit period. Likewise, there was dramatic improvement in HM's ability to handle ADLs.
By September 2009, HM was able to move from hospice inpatient care to a private residence.
Although HM suffered from a chronic illness, the medical records fail to show that he entered into the end-stage of HIV/AIDS prior to the last benefit period.
The greater weight of the evidence supports a finding that HM was not eligible for hospice services for the period of September 1, 2009, through March 21, 2010. Therefore, AHCA is entitled to recover an overpayment amount of $27,597.90.
Recipient 6
LH was a 52-year-old female at the time she was admitted to hospice. Suncoast assigned a diagnosis of end-stage lung cancer. The period in dispute is July 29, 2011, through March 16, 2012.
LH had a good appetite, and although she experienced some weight loss, her nutritional status during her hospice stay improved as evidenced by her rising albumin level. The medical records do not document incidences of difficulty breathing, which would be an expected occurrence in a terminal lung cancer recipient.
LH's breathing capacity negated a terminal diagnosis.
The medical records noted that she worked as a hairdresser. A terminal cancer recipient likely would be unable to manage that
kind of work. LH was able to perform her ADLs and even work throughout the audit period and had a stable PPS score.
The medical records did not evidence progression of the disease. On March 16, 2012, LH was discharged from hospice care in order to seek aggressive cancer treatment.
The greater weight of the evidence supports a finding that LH was not eligible for hospice services for the period of July 29, 2011, through March 16, 2012. Therefore, AHCA is entitled to recover an overpayment amount of $33,255.19.
Recipient 7
The dispute concerning RM was withdrawn by AHCA during the hearing. Therefore, AHCA is not entitled to the alleged overpayment of $49,193.46.
Recipient 8
LM was a 43-year-old female at the time she was admitted to hospice on November 8, 2006 (pre-audit period). She was assigned a diagnosis of debility, unspecified. The period in dispute is September 1, 2009, to June 18, 2010. In total, she received three and one-half years of hospice care for her illness.
A diagnosis of debility means that a recipient experiences weakness that is so severe that he/she cannot feed themselves or complete their own ADLs. Although LM had a number of comorbid conditions, they were stable. LM had a history of
infection but always was treatable with oral antibiotics. She did not have any hospitalizations during the relevant period.
LM's nutritional status was not impaired; her weight varied from 206 to 242 pounds; and her albumin level ranged from
2.4 to 3.6, the latter reading within the normal range.
The greater weight of the evidence supports a finding that LM was not eligible for hospice services for the period of September 1, 2009, to June 18, 2010. Therefore, AHCA is entitled to recover an overpayment amount of $39,759.75.
Recipient 9
MK was a 25-year-old female when she was admitted to Suncoast on April 7, 2011, with a terminal diagnosis of alcoholic cirrhosis of the liver. The dates in dispute are June 8, 2011, through November 4, 2011.
At the first approved hospice period, and immediately preceding it, MK had an International Normalized Ratio of 2.6. By June 2011, and the next period, a disallowed period, she had improved to 1.3. The lower score signifies improvement in liver function.
Likewise, MK's albumin level steadily improved from 1.9 pre-hospice to 2.4 in the approved initial period and then to 2.6 in June of 2011. While still an abnormal score, the higher albumin score denotes improved liver function. Her weight was stable during the final disallowed period. There also was
evidence in these periods that MK no longer suffered from ascites, a build-up of fluid in the abdomen, and that she had stopped drinking. This action towards sobriety improved her prognosis. A nurse's note for June 14, 2011, one week into the disallowed period, states that "nutrition is adequate."
MK's functional status continued to improve throughout her hospice admission. By the beginning of the disallowed periods, she began to feel stronger. By June 13, 2011, she only needed some help with mobility but was otherwise independent in her ADLs. By July 2011, she was well enough to perform yard work and was soon walking her dog and riding a bicycle.
During the disallowed periods there was no evidence that MK had entered the end-stage of liver disease. In fact, near the end of the benefit period, Suncoast discharged her for extended prognosis.
The greater weight of the evidence supports a finding that MK was not eligible for hospice services for the period from June 8, 2011, through November 4, 2011. Therefore, AHCA is entitled to recover an overpayment amount of $21,241.55.
Recipient 10
CD was a 52-year-old male upon admission to hospice with a diagnosis of malignant neoplasm of the kidney. The contested dates of service are August 25, 2010, to February 15, 2012.
CD's medical records did not evidence progression of the disease. The computed tomography (CT) scans reflect that from January 2010 to June 2010 the mass in his kidney had not changed in size. A scan in December 2011 reflects that there were "no significant changes to the renal mass." CD never had a biopsy to confirm the diagnosis.
CD's weight was stable. There was no impairment to the nutritional status. In addition, CD was functioning so well he was able to ride his bicycle and even attend a wedding on the beach. After seven recertifications, Suncoast finally discharged him as stabilized and with an extended prognosis on February 15, 2012.
The greater weight of the evidence supports a finding that CD was not eligible for hospice services for the period of August 25, 2010, to February 15, 2012. Therefore, AHCA is entitled to recover an overpayment amount of $76,855.33.
Recipient 11
SR was a 62-year-old female at the time of her admission to Suncoast on January 15, 2010, with a diagnosis of malignant neoplasm of the anus. Only one benefit period, from January 15, 2010, through April 14, 2010, is in dispute.
SR continued to have chemotherapy and radiation therapy throughout this benefit period. Aggressive radiation therapy and surgery are not palliative care. After only four days into the
benefit period, Suncoast's hospice physician could not state that her condition mandated a terminal prognosis, labeling it instead as "uncertain."
There was no clinical progression of the terminal disease. SR never entered the end-stage of a chronic disease and she was discharged from hospice for extended prognosis on
April 14, 2010.
The greater weight of the evidence supports a finding that SR was not eligible for hospice services for the period of January 15, 2010, through April 14, 2010. Therefore, AHCA is entitled to recover an overpayment amount of $12,298.50.
Recipient 12
SC was a 60-year-old female at the time of her admission to hospice. She was given a diagnosis of Chronic Obstructive Pulmonary Disease (COPD). The benefit period in dispute is December 7, 2009, through August 27, 2010.
The severity of COPD depends on the patient. Some patients may live 15 to 20 years with this diagnosis.
SC continued to be responsive to treatment. Her functional capacity was stable as evidenced by her PPS score of
50 to 60 percent. Her nutritional status was stable as evidenced by her weight and ability to eat a normal diet. She was alert and oriented; there was no progression of her oxygen requirements; and her oxygen saturation rate improved. The
recipient was finally discharged as stabilized with an extended prognosis on August 27, 2010.
The greater weight of the evidence supports a finding that SC was not eligible for hospice services for the period of December 7, 2009, through August 27, 2010. Therefore, AHCA is entitled to recover an overpayment amount of $36,075.60.
Recipient 14
The overpayment dispute as to recipient 14 was withdrawn by AHCA at the hearing. Therefore, AHCA is not entitled to the alleged overpayment of $24,898.50.
Recipient 15
MBH was a 51-year-old female at the time of her admission to Suncoast on November 9, 2010, with a terminal diagnosis of alcoholic cirrhosis of the liver. The period in dispute is November 9, 2010, through June 30, 2011.
The laboratory reports for MBH do not support a terminal prognosis. Her laboratory results were only "mildly abnormal" and "moderate," but not terminal.
There was no evidence supporting an impaired nutritional status related to the terminal process or functional decline. MBH lived at her home alone and was able to handle her medications. Even with a previous head injury in her medical history, there was no evidence of a decline in mentation. She was independent in the five ADLs. And while there was some
evidence of hepatic encephalopathy pre-admission, a typical symptom of end-stage liver disease, the initial hospice summary upon admission stated that it was "improving."
The medical records fail to show that MBH had entered the end-stage of liver disease. There was no variceal bleeding, another typical symptom of end-stage liver disease. Whatever minor symptoms of hepatic encephalopathy existed preadmission had resolved, and her mentation and levels of consciousness were fine. She had stopped drinking alcohol.
MBH never entered the end-stage of a chronic disease, and she was discharged from hospice for extended prognosis on June 30, 2010.
The greater weight of the evidence supports a finding that MBH was not eligible for hospice services for the period of November 9, 2010, through June 30, 2011. Therefore, AHCA is entitled to recover an overpayment amount of $32,916.78.
Recipient 16
DD was a 55-year-old female at the time of her admission to Suncoast on May 3, 2012, with a diagnosis of COPD. The denied dates at issue are May 3, 2012, through December 31, 2012, the end of the audit period.
A review of DD's medical record, including assessment, laboratory, and radiological studies, does not support the terminal prognosis. On April 12, 2012, immediately prior to the
admission to hospice, a chest x-ray revealed that her COPD was stable and there was no evidence of infection or other abnormalities. Near the end of her stay, DD had a normal blood gas reading, which is an unusually healthy rating for someone alleged to have end-stage COPD. She had no shortness of breath on admission. Any shortness of breath issues during her stay were being easily controlled with medication.
There was no clinical progression of the disease. Her respiratory function was stable. DD did not suffer from any impaired nutritional status. Her weight was stable throughout the periods under review and she was able to eat without difficulty. DD's functional status also remained stable. She was able to ambulate independently. She was able to get out of her home to go shopping and for meals.
The greater weight of the evidence supports a finding that DD was not eligible for hospice services for the period of May 3, 2012, through December 31, 2012. Therefore, AHCA is entitled to recover an overpayment amount of $36,324.28.
Recipient 17
TS was a 45-year-old female at the time of her admission to Suncoast on September 28, 2011, with a diagnosis of alcoholic cirrhosis of the liver. The denied dates at issue are October 16, 2011, through September 6, 2012.
The first several weeks of the hospice period were approved by the auditors. Thereafter, TS's condition began to stabilize. Although TS was initially provided a high level of care at the hospice, she soon returned home and was independent in her ADLs.
The laboratory and other studies in the medical records do not support the terminal prognosis or a clinical progression of a terminal disease. There was no sign of variceal bleeding, bacterial peritonitis, or jaundice, all symptoms associated with end-stage liver disease.
There is no evidence to support a finding that TS had an impaired nutritional status related to a terminal illness. There was no recent decline in functional status. In addition, by October 18, 2011, TS was independent in her ADLs, and she had no difficulty with walking, shopping, or even in sweeping her front steps.
The evidence supports a finding that TS was seeking more aggressive care, and not palliative hospice care. TS never entered the end-stage of the disease after October 2011. Suncoast was well aware of her positive progress and stability. On July 11, 2012, Suncoast was planning her discharge notwithstanding the recertification on July 24, 2012. She was discharged for extended prognosis on September 6, 2012.
The greater weight of the evidence supports a finding that TS was not eligible for hospice services for the period of October 16, 2011, through September 6, 2012. Therefore, AHCA is entitled to recover an overpayment amount of $47,316.90.
Recipient 18
CC was a 62-year-old female at the time of her admission to Suncoast on September 3, 2009, with a diagnosis of pancytopenia. The diagnosis was changed on April 1, 2010, to alcoholic cirrhosis of the liver. The dates in dispute are from September 3, 2009, through September 28, 2010.
The laboratory results and other medical studies in the record do not support a terminal prognosis. There was no proof of clinical progression of the disease. Indeed, Suncoast's own records reflect otherwise. For example, a report from CC's Interdisciplinary Team on March 2, 2010, reflects that Suncoast was already planning a "possible discharge." A clinical note by a hospice physician dated April 1, 2010, stated that the "patient has improved significantly and may be approaching a time where she no longer needs hospice." A summary report on June 28, 2010, stated that the "patient appears to be stabilized in her disease progression."
The record as a whole does not warrant a finding of functional decline. CC had an active social life, including participation in line dancing. An activity such as line dancing
is not consistent with someone suffering from hepatic encephalopathy.
The greater weight of the evidence supports a finding that CC was not hospice-eligible for the period of September 3, 2009, through September 28, 2010. Therefore, AHCA is entitled to recover an overpayment amount of $46,955.78.
Recipient 19
SP was a 48-year-old male at the time of his admission to hospice on February 6, 2009, prior to the audit period. He was given a diagnosis of chronic airway obstruction (the same as COPD). The contested dates of admission are September 1, 2009, to September 28, 2010. He was in hospice care in excess of
18 months.
COPD is a chronic illness. There are different classifications of COPD: mild, moderate, severe, and very severe. Even though SP was classified as having moderate COPD disease, he was able to achieve 97 percent oxygen saturation without any supplementation. An end-stage COPD patient would have increased oxygen needs.
SP had a Body Mass Index (BMI) in the normal range throughout the period. Therefore, there was no impaired nutritional status attributable to a terminal process. There were no hospitalizations or ongoing infections in the medical record during the disputed period.
SP was able to live on his own, an indication of his high functional status, and to perform such tasks as ambulating, moving, shopping, and preparing meals. An end-stage COPD patient would experience difficulty ambulating or doing these simple tasks.
There was no clinical progression of SP's symptoms in the medical records.
The greater weight of the evidence supports a finding that SP was not eligible for hospice services for the period of September 1, 2009, to September 28, 2010. Therefore, AHCA is entitled to recover an overpayment amount of $49,598.55.
Recipient 20
DG was a 59-year-old female upon admission to hospice.
She was given the diagnosis of liver cirrhosis. The contested periods of hospice admission are from April 22, 2011, to January 22, 2012, when the recipient died.
DG was able to complete some ADLs. Her weight was stable and her nutritional status was adequate.
DG suffered a hip fracture shortly before she died on January 22, 2012. While AHCA contends that being bed-bound increased her mortality rate, and is the cause of death, it is more likely that DG died from her end-stage liver disease than the hip fracture.
There is less than a preponderance of the evidence to support a finding that DG was not eligible for hospice services for the period of April 22, 2011, until January 22, 2012. Therefore, AHCA is not entitled to recover an overpayment amount of $48,188.68.
Recipient 21
RM was a 46-year-old male when he was admitted to Suncoast on February 2, 2012, with the diagnosis of HIV disease. The period in dispute is the entire hospice stay from February 2, 2012, through October 4, 2012.
There is a lack of physician assessments and laboratory, radiological, or other studies to support a terminal prognosis. RM was HIV-positive since 1986, but he was non- compliant with the antiretroviral therapy recommended for HIV/AIDS patients. He had psychological and substance abuse issues that contributed to the poor control of the disease, but these issues did not cause terminality.
There is no credible evidence that RM had an impaired nutritional status related to the disease. He tolerated oral intake. There was no recent decline in functional status. RM was independent in his ADLs in February 2012 and August 2012 and his PPS numbers steadily increased.
The medical record fails to show specific documentation that RM had entered the end-stage of AIDS. He
continued to use and abuse illegal substances. Hospice care ended when RM decided to relocate to Fort Lauderdale, Florida.
The greater weight of the evidence supports a finding that RM was not eligible for hospice services for the period of February 2, 2012, through October 4, 2012. Therefore, AHCA is entitled to recover an overpayment amount of $46,624.85.
Recipient 22
DJ was a 59-year-old male when he was first admitted to Suncoast on September 6, 2011, with the diagnosis of malignant neoplasm of intrahepatic bile ducts. Three separate periods of admission are in dispute: September 6, 2011, to September 23, 2011; October 10, 2011, to January 20, 2012; and February 9, 2012, to December 31, 2012 (end of audit period).
The medical records support a finding that DJ's cancer was stable. His oncologist's report of October 11, 2011 (at the beginning of his second admission following a trip to Kentucky) reflects that his CT scan from August 2011 "reveals stable disease." By April 2012, the pathology reports "revealed no evidence of malignancy."
His weight, while low, fluctuated between the mid-90s and 110 pounds during the entire 16-month period of hospice admissions.
All of the objective signs for this patient point to stability of the disease. There was no showing of nutritional
impairment. Just before his initial admission, his albumin reading was normal at 3.6. There was an improvement in his functional status over time, reaching 80 to 90 percent in January 2012. DJ lived alone the entire period and was independent in his ADLs. DJ never entered the end-stage of a terminal disease. In January 2012, he was discharged for extended prognosis.
On February 8, 2012, DJ visited his oncologist who stated that he "need[s] to be readmitted, needs pain management ASAP," and that "[w]e will re-enroll him back at hospice." The readmission occurred the next day. Long-term management of pain in a chronic disease is inconsistent with the purpose of hospice. This improper admission was compounded by recertifications in May, August, October, and December 2012. The audit period ended December 31, 2012, and DJ was finally discharged on February 9, 2013.
The greater weight of the evidence supports a finding that DJ was not eligible for hospice services for the periods of September 6, 2011, to September 23, 2011; October 10, 2011, to January 20, 2012; and February 9, 2012, to December 31, 2012. Therefore, AHCA is entitled to recover an overpayment amount of
$64,914.98.
Recipient 23
VH was a 48-year-old female when she was admitted to Suncoast on June 9, 2009, prior to the start of the audit period, with the diagnosis of alcoholic liver cirrhosis. There are three separate periods of admission, but only the periods December 22, 2010, through January 4, 2011; and August 31, 2011, through August 21, 2012, are in dispute.
There is no support in the record for the very brief, two-week admission that began on December 22, 2010. In fact, Suncoast recognized its error and discharged her. The Discharge Summary and Order states that VH "[d]oes not want EOL [end of life] support, care," and "[p]atient desires aggressive treatment not consistent with palliative care."
The medical records do not support a terminal illness in the other disputed period. There is no record of a continued progression of end-stage liver disease. There are indications in the record that VH had quit drinking and was seeing improvement. Her liver disease was managed properly.
There was no showing of a recently impaired nutritional status or a decline in VH's functional abilities. She never entered a true end-stage to her liver disease. Although she was recertified four more times in February, April, June, and August 2012, VH finally was discharged as not meeting hospice criteria on August 21, 2012. The evidence supports a
finding that Suncoast engaged in the provision of long-term care for a chronic illness as opposed to providing Medicaid approved end-of-life care.
The greater weight of the evidence supports a finding that VH was not eligible for hospice services for the periods of December 22, 2010, to January 4, 2011; and August 31, 2011, to August 21, 2012. Therefore, AHCA is entitled to recover an overpayment amount of $57,644.89.
Recipient 24
TF was a 62-year-old male when he was admitted to Suncoast on January 17, 2011, with the diagnosis of renal failure. The disputed period is January 17, 2011, through August 5, 2011.
There was no clinical progression of end-stage renal failure. TF continued to improve throughout the hospice period. His functional status steadily improved. There is no documentation in the medical record to show that he had an impaired nutritional status due to his kidney problems.
Nothing in TF's medical record supports a finding that he had entered the end-stage of renal failure. Although TF was recertified twice, notwithstanding the documented improvement, he finally was discharged as stabilized and with an extended prognosis on August 5, 2011.
The greater weight of the evidence supports a finding that TF was not eligible for hospice services for the period January 17, 2011, through August 5, 2011. Therefore, AHCA is entitled to recover an overpayment amount of $28,274.67.
Recipient 26
NP was a 56-year-old female at the time she first was admitted to hospice on August 21, 2009. Suncoast assigned an end-stage diagnosis of metastatic lung cancer, including a mass in the adrenal gland. The periods in dispute are April 5, 2010, to June 7, 2010; August 10, 2010, to November 10, 2010; and December 2, 2010, to July 31, 2011.
Follow-up imaging did not show growth of the mass in the adrenal gland. The medical records also failed to show any active evidence of the disease. On November 21, 2010, her tibial lesion had no evidence of disease. Another bone scan showed there was no active metastasis. A CT scan showed there was no active metastasis in the brain.
Due to the lack of metastasis in the head, brain, and pelvis, there was no evidence of the metastasis of the cancer. Metastatic cancer is aggressive, but, according to hospice records, NP did not require oxygen supplementation and was able to breathe room air. Respiratory compromise would be an expected symptom in a recipient with aggressive lung cancer.
NP's nutritional status was not compromised as her weight ranged from 210 to 225 pounds. For most of the period, NP was able to live alone, drive her car, and run errands. NP had a dyspnea score of zero, and with lung cancer, one would expect to see the clinical effects of the disease affecting her ability to breathe, which was not present here.
The greater weight of the evidence supports a finding that NP was not eligible for hospice services for the periods April 5, 2010, to June 7, 2010; August 10, 2010, to November 10, 2010; and December 2, 2010, to July 31, 2011. Therefore, AHCA is entitled to recover an overpayment amount of $77,524.36.
Recipient 27
RH was a 49-year-old male at the time of first admission to Suncoast in October 2010, with a terminal diagnosis of alcohol cirrhosis of liver. Hepatitis C was a comorbid condition. The audit period dates in dispute are October 4, 2010, through May 8, 2011.
During the disputed hospice period, there was no clinical progression of RH's chronic liver disease, he did not experience an impaired nutritional status or decline in functional status, and there was no documentation to demonstrate that he entered the end-stage of a chronic disease. RH was independent in his activities of daily living, and he ran errands. Likewise, the medical records document many leaves of
absence (LOA), where RH left the hospice residential facility, often overnight, for recreational and entertainment purposes, including LOAs on April 2, 3, 9-10, 11, 16-17, 22-23, 29, and 30,
2011, and May 13-15 and 18, 2011.
Taken as a whole, the medical evidence fails to show, either at admission or during the disputed hospice period, that RH had a terminal illness with a prognosis of six months or less if the illness were to progress at a normal course. Near the end of the benefit period, Suncoast decided the patient should be discharged for extended prognosis.
The greater weight of the evidence supports a finding that RH was not eligible for hospice services for the period of October 4, 2010, through May 18, 2011. Therefore, AHCA is entitled to recover an overpayment amount of $40,196.30.
Recipient 29
MJ was a 59-year-old female when she was admitted to Suncoast on June 2, 2011, with malignant neoplasm of the colon. Two separate periods, June 2, 2011, through April 18, 2012; and June 11, 2012, through July 5, 2012, are in dispute.
A CT scan taken on October 9, 2011, showed that MJ's tumor had been reduced in size and was not indicative of a progression in a terminal illness. The same scan showed that "there were other nodular densities which were indicative of the
malignancy [and] were either unchanged or appeared to be stable compared to a prior study."
There was no clinical progression of the disease, and the medical record as a whole reflected stability. When MJ was discharged after the first admission period, the Discharge Summary stated that she was stabilized. In addition, MJ was seeking a reversal of her colostomy, which Suncoast recognized as an aggressive treatment. This procedure was aggressive and not palliative care and thus incompatible with hospice care.
There is nothing in the medical records to show recent impaired nutritional status related to a terminal process. MJ was at all times able to tolerate nutrition. Likewise, there was no decline in functional status. The medical records also reflect improvement in her functional capacity. MJ was independent in ADLs, worked in a craft booth at a flea market and then at a thrift store, and was able to do her laundry.
MJ voluntarily left the hospice to pursue aggressive treatment for her disease. She eventually was discharged from the second admission when she moved to Missouri. The Discharge Summary noted that MJ "is not transferring to a hospice there due to her plan to continue chemotherapy which is not allowed under Missouri hospice protocol."
The greater weight of the evidence supports a finding that MJ was not eligible for hospice services for the period
June 2, 2011, through April 18, 2012, and June 11, 2012, through July 5, 2012. Therefore, AHCA is entitled to recover an overpayment amount of $52,223.92.
Recipient 30
VG was a 52-year-old male at the time of first admission to Suncoast in July 2011, with a terminal diagnosis of malignant neoplasm of right tonsil (tonsillar cancer). The dates of July 21, 2011, through May 15, 2012; and July 18, 2012, through December 31, 2012, are in dispute.
VG's medical records reflect he was diagnosed with cancer of his right tonsil in January 2011; he did not receive treatment for his tonsil cancer until at least March 2011; and by then, the cancer had spread to a single lymph node. By the time he was first admitted to hospice on July 21, 2011, he had been receiving laser/radiation treatments for his tonsillar cancer for several months. VG was scheduled to continue receiving laser/radiation treatments for at least one more week; and following the completion of the laser/radiation treatments, he was scheduled to start receiving chemotherapy to treat his cancer.
Previously homeless, VG moved in with his friend, Linda, who was a certified nurse's assistant. Linda was VG's primary caregiver and support person. As his primary caregiver,
Linda performed activities for VG like disconnecting and flushing the lines/tubes used to administer medications to him.
An oncologist treated VG's tonsillar cancer. The record reflects his cancer treatments before and during the first hospice admission caused his cancer to be undetectable or eliminated. With the tonsillar cancer and cancer of the single lymph node resolved, a new area of concern at the base of VG's tongue, which turned out to be cancer, was seen on a positron emission tomography scan. He was discharged from hospice to have the lesion/tumor at the base of his tongue surgically removed. Suncoast discharged him to have the cancer surgery because it was considered aggressive care, and Suncoast could not pay for it under palliative care.
Suncoast readmitted VG on July 18, 2012, after he had surgery to remove the lesion from his tongue. VG's admitting terminal diagnosis was malignant neoplasm of tonsil with comorbidities of malignant neoplasm of tongue, unspecified, and adult failure to thrive.
Taken as a whole, the evidence fails to show VG had a terminal condition because he was being monitored closely by an oncologist and ear/nose/throat surgeon who provided aggressive treatments, including laser/radiation, chemotherapy, and surgery, that changed the trajectory or normal course of his illness by improving his prognosis. While this aggressive treatment likely
saved VG's life, it undermines the purpose of hospice and precludes hospice admission for the recipient.
The greater weight of the evidence supports a finding that VG was not eligible for hospice services for the periods July 21, 2011, through May 15, 2012; and July 18, 2012, through December 31, 2012. Therefore, AHCA is entitled to recover an overpayment amount of $77,949.39.
Recipient 33
AA was a four-year-old male who was admitted to the hospice with a terminal diagnosis of Ohtahara Syndrome (a seizure disorder). The audit period dates in dispute are September 1, 2009, through October 9, 2009; April 12, 2010, through June 23, 2010; and June 28, 2010, through September 25, 2010.
AA's albumin level, recorded on one date, June 28, 2010, was in the low to normal range at 3.2. His weight, recorded only on two occasions, April 12, 2010, at 35 pounds, and June 28, 2010, at 33 pounds, also was stable. AA's PPS remained between 30 and 40 percent when it was recorded on April 12, 2010, and June 28, 2010. He regularly attended a special school except when he had acute episodes of seizures or aspiration pneumonia.
AA's functional capacity remained low, and he was fed with a feeding tube, except during acute episodes when he experienced aspiration pneumonia. Patients with minimal or no functional capacity, such as stroke patients and brain-dead
patients, can live for years with feeding tubes. When AA experienced acute episodes of seizures, aspiration (pneumonia), and acid reflux, he was treated aggressively each time and stabilized, rather than just left to progress to death. AA utilized the Medicaid hospice benefit as a rehabilitation program to help him get stronger after acute episodes. This utilization of hospice for rehabilitation purposes is not consistent with the spirit of hospice.
Taken as a whole, the medical records fail to show that he had a terminal illness with a life expectancy of six months or less if the illness were to progress at a normal course at the beginning of the disputed hospice dates or at any point during the hospice stay. Near the end of the benefit period, Suncoast discharged him for extended prognosis.
The greater weight of the evidence supports a finding that AA was not eligible for hospice services for the periods of September 1, 2009, through October 9, 2009; April 12, 2010, through June 23, 2010; and June 28, 2010, through September 25, 2010. Therefore, AHCA is entitled to recover an overpayment amount of $27,597.90.
Recipient 34
NI was a 78-year-old female upon admission to hospice.
Suncoast assigned the diagnosis of congestive heart failure. The
contested dates of service are May 14, 2012, to November 27, 2012.
NI was given a New York Heart Association (NYHA) classification III during the contested dates of service. There are four stages in the NYHA classification system for congestive heart failure, ranked I to IV, with I being the mildest and IV being the most severe. She had an ejection fraction of
52 percent, slightly below a normal score of 55 percent. Her BMI was 21.5, which showed her nutritional status was adequate. Her weight ranged from 121 to 143 pounds during the relevant period. Any pains NI experienced were controlled by medications. By contrast, a terminal recipient often experiences pains so severe as to be untreatable with medications.
As time progressed, NI was complaining of shortness of breath, but this was treated with oxygen. At other times, her oxygen saturation level was 97 or 98 percent on room air. NI also had a relatively high PPS of 50 percent and an albumin level of 3. She was able to complete her ADLs and eventually was discharged from hospice because of her improved condition.
The greater weight of the evidence supports a finding that NI was not eligible for hospice services for the period of May 14, 2012, to November 27, 2012. Therefore, AHCA is entitled to recover an overpayment amount of $28,020.38.
Recipient 35
SE was a 51-year-old male when he was admitted to Suncoast on July 31, 2009 (pre-audit), with a diagnosis of unspecified chronic liver disease. The periods September 1, 2009, through January 15, 2010; and July 5, 2011, through August 21, 2012, are in dispute.
In SE's first admission in 2009, the serial assessments and laboratory studies relate primarily to nutritional values. His albumin rates all generally were considered to be low, but they do not denote a terminal prognosis.
There was no clinical progression to a terminal disease. SE never entered the end-stage of liver disease. Suncoast finally discharged SE as stabilized and with an extended prognosis on January 15, 2010.
The second admission period also fails to satisfy the requirements for Medicaid hospice care. There was no clinical progression. As early as September 6, 2011, SE's records note he was "stable." His condition was "status quo" at the next recertification on September 28, 2011. On August 21, 2012, after five recertifications, SE was discharged as stabilized and with an extended prognosis.
The greater weight of the evidence supports a finding that SE was not eligible for hospice services for the period
September 1, 2009, through January 15, 2010; and July 5, 2011, through August 21, 2012. Therefore, AHCA is entitled to recover an overpayment amount of $83,122.26.
Recipient 36
JS was a 61-year-old male during the relevant admission to hospice. He was assigned a diagnosis of neoplasm of the liver. The contested hospice admission is November 19, 2009, to May 11, 2010.
A biopsy was not administered on this patient before he was diagnosed with terminal liver cancer. Without that information, it would be difficult to decide if a recipient was terminal. Although JS had an elevated carcinoembryonic antigen level, this also may be found in benign forms of cancer, so that a single elevated laboratory value alone is not a sufficient indication of terminality.
According to the hospice records, JS was able to ambulate to the beach and find a girlfriend, and he even considered joining a gym. His ability to ambulate shows his ability to function. JS had an adequate nutritional status and his weight was approximately 217 pounds. During the relevant period, he gained eight pounds.
The greater weight of the evidence supports a finding that JS was not eligible for hospice services for the period of
November 19, 2009, to May 11, 2010. Therefore, AHCA is entitled to recover an overpayment amount of $23,777.10.
Recipient 37
JF was a 61-year-old male at the time of first admission to Suncoast in January 2010, with a terminal diagnosis of congestive heart failure. The audit period dates of
January 16, 2010, through November 1, 2010, are in dispute.
During the April 16, 2010, through July 14, 2010, benefit period, and the July 15, 2010, through September 12, 2010, benefit period, Suncoast records reflected JF was NYHA class IV. A patient with class IV symptoms would have severe physical limitations, with symptoms of being uncomfortable and in pain occurring even at rest. However, during these periods, JF had outings, including trips on a handicap-equipped sailboat, which he was able to steer. Suncoast records do not reflect a NYHA classification of less than class III for this recipient. A person suffering from either NYHA class III or IV symptoms would not be able to perform the activities JF performed. Further, at the time of his discharge from hospice, his last functional capacity was measured at NYHA class IV, which is inconsistent with his much higher level of functioning and inconsistent with a discharge from hospice.
Taken as a whole, the evidence fails to show that JF had a terminal diagnosis with a life expectancy of six months or
less if the illness were to progress at a normal course at admission or at any point during the hospice stay. Near the end of the benefit period, Suncoast discharged him for extended prognosis after he was evaluated by a cardiologist for the first time during his hospice admission.
The greater weight of the evidence supports a finding that JF was not eligible for hospice services for the period of January 16, 2010, through November 1, 2010. Therefore, AHCA is entitled to recover an overpayment amount of $37,756.35.
Recipient 38
JM was a 44-year-old male at the time of first admission to Suncoast in February 2010, with a terminal diagnosis of HIV. The dates in dispute are February 17, 2010, through August 15, 2010.
JM's medical records reflect he was admitted to Morton Plant Hospital (MPH) on February 4, 2010, with anorexia, weight loss, depression, and confusion, and that during this admission, he was diagnosed with HIV/AIDS. An MRI of his brain showed abnormalities that suggested HIV encephalitis. The MPH doctors decided to continue to treat this condition with Highly Active Antiretroviral Therapy (HAART), which already was being used to treat his newly diagnosed HIV/AIDS.
At the beginning of his admission to Suncoast, JM made it clear to the hospice doctors that he wished to pursue
"aggressive treatment no matter what the circumstances" for his HIV/AIDS and HIV encephalitis. He was seen and treated by an AIDS specialist.
HAART is the standard of care for treatment of HIV and AIDS for patients who are not in hospice. It is common for individuals with HIV receiving HAART therapy to live for many years. JM's treatment with HAART was not palliative, and hospice was inappropriate for this recipient.
The record reflects JM's laboratory studies, functional status, and mentation/orientation improved after he started HAART therapy. By June 24, 2010, it was noted JM was more talkative, ate an entire sandwich during a visit, and that he had been going out to stores with his significant other. On June 30, 2010, it was noted JM had been working with a physical therapist to stretch his hamstrings and straighten his neck, and that he wanted more independence from his significant other. On July 15, 2010, it was noted JM had been out on his scooter, he was going to make an effort to know his neighbors, and that he was thinking of getting a job.
The greater weight of the evidence supports a finding that JM was not eligible for hospice services for the period February 17, 2010, through August 15, 2010. Therefore, AHCA is entitled to recover an overpayment of $30,738.07.
Recipient 39
LR was a 60-year-old male at the time of admission to Suncoast in September 2010, with a terminal diagnosis of cryptococcal meningitis. The audit period dates reviewed were September 22, 2010, through December 31, 2012. These dates are in dispute.
LR had been admitted to Suncoast for two years and three months when the audit period ended and he remained in hospice care. His cryptococcal meningitis was diagnosed in February or March 2010. By the time he was admitted to hospice, he had been taking antifungal medications to treat this condition for seven months, and he continued taking antifungal medications throughout his hospice admission.
The antifungal medications LR received before and throughout his hospice admission were aggressive treatments that stabilized his disease, improved his prognosis, and prolonged his life. This was consistent with LR's desire "to keep the fungus at a stable point to keep the symptoms down." Serial physician assessments and laboratory and radiological studies confirm that LR's disease was stabilized.
Taken as a whole, the evidence fails to show LR had a terminal condition because he was treated and followed by an infectious disease doctor who provided an aggressive antifungal treatment regimen (not palliative) that changed the trajectory or
normal course of his illness, improved his prognosis, and stabilized or improved his condition. While this aggressive therapy likely saved his life, it undermines the purpose of hospice and precludes hospice admission.
The greater weight of the evidence supports a finding that LH was not eligible for hospice services for the period of September 22, 2010, through December 31, 2012. Therefore, AHCA is entitled to recover an overpayment amount of $119,008.92.
Recipient 40
DH was a 60-year-old female at the time of her most recent admission to Suncoast in June 2009, with a terminal diagnosis of heart disease. The audit period dates reviewed were September 1, 2009, through January 27, 2012. This period of service is in dispute.
DH's medical record reflects she had been living with heart disease for more than ten years when she was admitted to hospice shortly before the beginning of the audit period. During the period of almost ten years preceding the end of the disputed hospice period, DH was admitted to Suncoast for her conditions at least four times and later was discharged. By the time she was discharged from hospice on January 27, 2012, with an extended prognosis, after more than a two and one-half year hospice admission, she had been in Suncoast for her heart disease for approximately eight of the last ten years.
While Suncoast records showed DH was functioning at NYHA class III and IV throughout the disputed hospice period, meaning that either she was comfortable only at rest or she was uncomfortable even at rest, her activities demonstrate she had a much greater functional status than class III and IV. For example, the record reflects that she was active and independent in her ADLs throughout most of the disputed hospice stay, including going to the grocery store and shopping for a wedding dress with her granddaughter; she went on overnight and out-of- state trips, homeschooled a grandchild, prepared meals for her family and cleaned her home; she did in-home office work related to her husband's window business; and she organized and helped prepare her home for sale.
Taken as a whole, the evidence fails to show she had a terminal condition with a life expectancy of six months or less if the illness were to progress at a normal course. Near the end of the benefit period, Suncoast decided DH should be discharged for extended prognosis.
The greater weight of the evidence supports a finding that DH was not eligible for hospice services for the period of September 1, 2009, through January 27, 2012. Therefore, AHCA is entitled to recover an overpayment amount of $122,535.20.
Recipient 42
LL was a 58-year-old male at the time of his second admission to Suncoast in November 2011, with a terminal diagnosis of malignant carcinoid tumor of the jejunum (cancer of the intestine). Liver disease was a comorbid condition. The audit period dates reviewed were November 26, 2010, through August 12, 2011; and November 10, 2011, through February 7, 2012. AHCA peers approved the dates of the first admission, but the second admission remains in dispute.
LL was discharged from hospice during the first admission because his liver disease was responsive to treatment, resulting in an extended prognosis.
Suncoast records reflect that between his first and second admissions, LL was hospitalized for abdominal pain and an exacerbation of his chronic liver disease. However, Suncoast did not provide any medical records from this hospitalization or from LL's doctors and medical providers during the disputed hospice period. The information concerning his hospitalization and related treatment comes from Suncoast's records, which simply recount what the missing records purportedly depict.
LL's medical history preceding his second hospice admission reflects his chronic liver disease was responsive to treatment and was not a terminal condition with a life expectancy of six months or less if the disease were to progress at a normal
course. Also, during his second hospice period, LL's chronic liver disease was not considered a terminal condition. Instead, the cancerous tumor in the intestine was the admitting terminal diagnosis, and alcoholic cirrhosis of liver was listed as a co- existing or comorbid diagnosis/condition.
Taken as a whole, the evidence fails to show that LL had a terminal illness with a prognosis of six months or less if the illness were to progress at a normal course. Near the end of the benefit period, less than three months after his second hospice admission, Suncoast decided LL should be discharged for extended prognosis.
The greater weight of the evidence supports a finding that LL was not eligible for hospice services for the period of November 10, 2011, through February 7, 2012. Therefore, AHCA is entitled to recover an overpayment amount of $14,023.26.
Recipient 43
TGM was a 49-year-old female at the time of her admission to Suncoast in March 2011, with a terminal diagnosis of alcoholic liver damage. The audit period dates reviewed were March 18, 2011, through January 11, 2012. This period of service is in dispute.
TGM was acutely ill when she was hospitalized on January 31, 2011 (before she was admitted to hospice). However, her physician assessments and laboratory studies did not indicate
a terminal process or progression of a terminal disease; her weight remained stable and even increased; and her functional status remained stable and actually improved.
The record reflects that during the disputed hospice period, TGM did things like reschedule a hospice visit because she was going out to lunch, take a walk around a park, go out to get her hair done, and attend one of her son's basketball games. On June 8, 2011, within three months of her hospice admission, hospice staff discussed not recertifying the patient (and discharging her) because her condition was stable. These discussions continued throughout the remainder of the year. Suncoast eventually discharged TGM on January 11, 2012, for extended prognosis.
The greater weight of the evidence supports a finding that TGM was not eligible for hospice services for the period March 18, 2011, through January 11, 2012. Therefore, AHCA is entitled to recover an overpayment amount of $42,616.09.
Recipient 44
TEM was a 52-year-old male at the time of first admission to Suncoast in August 2011, with a terminal diagnosis of alcoholic cirrhosis of liver. Malignant neoplasm of the anus (anal cancer) was a comorbid condition. The audit period dates reviewed were August 23, 2011, through April 15, 2012. The dates in dispute are August 23, 2011, through February 8, 2012.
While TEM had abnormal laboratory values, appeared to be malnourished, and was anemic, these are common findings in patients with liver disease or liver cirrhosis, but they do not indicate the liver disease is terminal. Further, hospital records from two and one-half weeks before TEM's hospice admission describe his medical history, including that he had chronic liver disease that was responsive to treatment. A patient's liver disease that is responsive to treatment is not a terminal condition within a six-month period if the illness were to progress at a normal course.
The greater weight of the evidence supports a finding that TEM was not eligible for hospice services for the period August 23, 2011, through February 8, 2012. Therefore, AHCA is entitled to recover an overpayment amount of $24,441.83.
Recipient 45
JA was a 61-year-old female at the time of first admission to Suncoast in February 2012, with a terminal diagnosis of malignant neoplasm of breast (breast cancer). The audit dates reviewed were February 1, 2012, through December 31, 2012. These dates are in dispute.
During the disputed hospice period, physician assessments and laboratory and radiological studies showed JA's cancer was stable with no significant changes or signs of
progression; she did not have an impaired nutritional status; and there was no decline in functional status.
Serial physician assessments by JA's treating oncologist showed that her cancer was stable during the disputed hospice period. JA did not experience a decline in her functional status during the disputed hospice period. She remained physically active throughout the disputed hospice period. Her activities during this hospice period included swimming regularly, going on two cruises with her husband, going to see the Lipizzaner Stallions, and taking frequent outings. She remained independent in performing her ADLs.
The greater weight of the evidence supports a finding that JA was not eligible for hospice services for the period February 1, 2012, through December 31, 2012. Therefore, AHCA is entitled to recover an overpayment amount of $48,636.42.
Summary of Recipients and Total Overpayment Due to AHCA
After removing the time periods related to recipients 7 and 14, which were resolved in Suncoast's favor during the hearing, and based on the findings regarding the disputed or partially disputed recipients above, Suncoast owes
$1,646,672.10 for the 35 recipients with identified overpayments.
Fine Calculation
When calculating the appropriate fine to impose against a provider, the program uses a formula based on the
number of claims that are in violation of rule 59G-9.070(7)(e), which was in effect during the audit period. Specifically, the formula involves multiplying the number of claims in violation of the rule by $1,000.00 to calculate the total fine. Each month of hospice care is a separate claim. The final total may not exceed
20 percent of the total overpayment.
CONCLUSIONS OF LAW
AHCA has the burden of establishing an alleged Medicaid overpayment by a preponderance of the evidence. See, e.g., S. Med. Servs., Inc. v. Ag. for Health Care Admin.,
653 So. 2d 440, 441 (Fla. 3d DCA 1995); Southpointe Pharm. v. Dep't of Health & Rehab. Servs., 596 So. 2d 106, 109 (Fla. 1st
DCA 1992). However, clear and convincing evidence is required in order to impose a monetary fine. Dep't of Banking & Fin. v.
Osborne Stern & Co., 670 So. 2d 932, 935 (Fla. 1996).
To meet its burden of proof, AHCA may rely on the audit records and report. § 409.913(21) and (22), Fla. Stat. Section 409.913(22) provides that "[t]he audit report, supported by agency papers, showing an overpayment to a provider constitutes evidence of the overpayment." Thus, AHCA can make a prima facie case by proffering a properly supported audit report, which must be received in evidence. See Maz Pharm., Inc. v. Ag. for Health Care Admin., Case No. 97-3791 (Fla. DOAH Mar. 20,
1998; Fla. AHCA June 26, 1998).
In this case, AHCA seeks reimbursement of alleged overpayments based on the lack of eligibility, in whole or in part, of the 36 patient claims remaining at issue.
Although none of the peer review physicians were board-certified in the subspecialty of hospice and palliative medicine, they are board-certified in other specialties and regularly deal with recipients outside of their subspecialty.
Contrary to Suncoast's assertion, the peer review physicians retained by AHCA were qualified fully to perform the reviews and render their respective opinions on the eligibility of 36 recipients.
The Handbook provides that eligibility, for Medicaid hospice purposes, cannot be met if there is no terminal diagnosis with life expectancy of six months or less if the terminal disease progresses at its normal course.
For the reasons described above, patient-by-patient, AHCA should recover the overpayments for 35 recipients, as they do not meet the eligibility requirements of the Handbook.
AHCA may impose an administrative fine on Suncoast for each violation of any Medicaid-related law. § 409.913(15), Fla. Stat.; Fla. Admin. Code R. 59G-9.070(7)(e). In this case, the application of the statute and rule to 35 recipients results in a slightly lower administrative fine than sought by AHCA. However, discretion is reposed in the agency head to reduce or not impose
the fine on the ground a sanction is not in the best interest of the Medicaid program. See § 409.913(16), Fla. Stat.
AHCA is entitled to recoup its investigative, legal, and expert witness costs. See § 409.913(22), Fla. Stat. AHCA reserved its right to amend its cost worksheet in this case and, pursuant to section 409.913(23), to file a request with the undersigned to seek all investigative and legal costs, if it prevailed. Because AHCA prevailed, the undersigned reserves jurisdiction to enter an order on costs. Within 30 days of the date of the Final Order, AHCA shall serve Suncoast and the undersigned with its evidence of the investigative, legal, and expert witness costs it incurred in this proceeding. If Suncoast disputes this evidence, it shall have 10 days thereafter to file a response to contest AHCA's claim.
Finally, Suncoast's Motion to Dismiss this proceeding on the ground AHCA's audit is barred by the statute of limitations is denied. See Lee Mem'l Health Sys. Gulf Coast Med.
Ctr. v. State, Ag. for Health Care Admin., 44 Fla. L. Weekly D564 (Fla. 1st DCA Feb. 27, 2019)(the statute of limitations does not apply to audits for Medicaid overpayments); AHCA v. Lifepath Hospice, Inc., Case No. 18-2879MPI (Order Denying Motion to
Dismiss, Nov. 2, 2018); AHCA v. HCR Manor Care Servs. of Fla., LLC, Case No. 18-1848MPI (Order Denying Motion to Dismiss,
Nov. 15, 2018).
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 directing Suncoast to pay $1,646,672.10 for the claims found to be overpayments; and imposing a fine calculated pursuant to the formula, unless the Secretary determines the imposition of a fine is not in the best interest of the Medicaid program. The undersigned reserves jurisdiction to award investigative, legal, and expert costs to the prevailing party.
DONE AND ENTERED this 31st day of May, 2019, in Tallahassee,
Leon County, Florida.
S
D. R. ALEXANDER 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 31st day of May, 2019.
ENDNOTES
1/ A hospice provides palliative care services to terminally ill recipients who no longer choose to pursue curative medicine. They are among the sickest patients.
2/ Suncoast attempted to criticize the work experience of Dr. Saad by asserting that he used some of his residency time to reach five years of experience as per AMR guidelines. This argument was recently rejected in another MPI case. See AHCA v. HCR Manor Care Servs. of Fla., LLC, Case No. 18-1848MPI (Fla. DOAH Mar. 7, 2019)(final order pending), wherein ALJ Green stated that it had "no bearing on whether Dr. Saad met the criteria for a peer reviewer under Florida Law" and that he was indeed qualified under Florida Statutes.
3/ The lower the Karnofsky score, the less likelihood of the patient's survival.
COPIES FURNISHED:
Richard J. Shoop, Agency Clerk
Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3
Tallahassee, Florida 32308-5407 (eServed)
Joseph G. Hern, Jr., Esquire
Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3
Tallahassee, Florida 32308-5407 (eServed)
Kimberly S. Murray, Esquire
Agency for Health Care Administration Mail Stop 3
2727 Mahan Drive
Tallahassee, Florida 32308-5407 (eServed)
Gregory Warner, Esquire
Agency for Health Care Administration Mail Stop 3
2727 Mahan Drive
Tallahassee, Florida 32308-5407 (eServed)
Kevin D. Dewar, Esquire
Agency for Health Care Administration Mail Stop 3
2727 Mahan Drive
Tallahassee, Florida 32308-5407 (eServed)
Mary C. Mayhew, Secretary
Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 1
Tallahassee, Florida 32308-5407 (eServed)
Bryan K. Nowicki, Esquire Reinhart Boerner Van Deuren S.C. Suite 600
22 East Mifflin Street Madison, Wisconsin 53701-2018 (eServed)
Joshua D. Taggatz, Esquire Reinhart Boerner Van Deuren S.C. Suite 600
22 East Mifflin Street Madison, Wisconsin 53701-2018 (eServed)
Martin R. Dix, Esquire Akerman LLP
Suite 1200
106 East College Avenue Tallahassee, Florida 32301-7741 (eServed)
Steven Alfons Grigas, Esquire Akerman LLP
Suite 1200
106 East College Avenue Tallahassee, Florida 32301-7741 (eServed)
Stefan Grow, General Counsel
Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3
Tallahassee, Florida 32308-5407 (eServed)
Kim Kellum, Esquire
Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3
Tallahassee, Florida 32308-5407 (eServed)
Thomas M. Hoeler, Esquire
Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3
Tallahassee, Florida 32308-5407 (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 |
|---|---|---|
| Jul. 23, 2019 | Agency Final Order | |
| May 31, 2019 | Recommended Order | AHCA established that 36 patients not qualified for hospice care. Provider required to repay overpayments and fine imposed. |
