The Issue The issue is whether FFVA Mutual Insurance Company (FFVA) should be required to pay an additional $4,169.00 (for a total of $13,155.60) to a health care provider for a pre-authorized scheduled outpatient surgery.
Findings Of Fact FFVA, an insurance company, is a "carrier" as defined in section 440.13(1)(c), Florida Statutes (2012).4/ Summerlin is a health care provider as defined in section 440.13(1)(h) and is located in Fort Myers, Florida. On March 1, 2012, the Patient, an insured of FFVA, underwent a pre-authorized arthroscopic knee surgery, which was performed at Summerlin. The surgery was performed by Fletcher A. Reynolds, III, M.D. Dr. Reynolds dictated an Operative Report wherein he described the "Procedures Performed" as: Right knee arthroscopy, subtotal medial meniscectomy of bucket-handle medical meniscus tear, major synovectomy, medial compartment chondroplasty, and abrasion chondroplasty of the inferior medial aspect of the trochlea down to bleeding bone.[5/] The Operative Report also contained a section, "Procedure in Detail," which explained the extent of the surgery performed on the Patient's knee. The Current Procedural Terminology (CPT) codes for use to bill for the Patient's procedures include: 29879 abrasion arthroplasty (includes chondroplasty where necessary) or multiple drilling or microfracture; 29881 with meniscetomy (medial OR lateral, including any meniscal shaving); and 29875 synovectomy, limited (eg, plica or shelf resection) (separate procedure). A modifier is a number added to a particular CPT code that explains the procedure and what, if anything, is unusual about it. The two modifiers at issue are "51" and "59." Modifier 51 is defined as: Multiple Procedures: When multiple procedures . . . are performed at the same session by the same provider, the primary procedure or service may be reported as listed. The additional procedure(s) or service(s) may be identified by appending modifier 51 to the additional procedure or service code(s). Note: This modifier should not be appended to designated "add- on" codes (see Appendix D). CPT 2010,® American Medical Association, Appendix A- Modifiers, page 529. Modifier 59 is defined as: Distinct Procedural Service: Under certain circumstances, it may be necessary to indicate that a procedure or service was distinct or independent from other non-E/M [evaluation and management] services performed on the same day. Modifier 59 is used to identify procedures/services, other than E/M services, that are not normally reported together, but are appropriate under the circumstances. Documentation must support a different session, different procedure or surgery, different site or organ system, separate incision/excision, separate lesion, or separate injury (or area of injury in extensive injuries) not ordinarily encountered or performed on the same day by the same individual. However, when another already established modifier is appropriate it should be used rather than modifier 59. Only if no more descriptive modifier is available, and the use of modifier 59 best explains the circumstances, should modifier 59 be used. Note: Modifier 59 should not be appended to an E/M service. To report a separate and distinct E/M service with a non-E/M service performed on the same date, see modifier 25. CPT 2010,® American Medical Association, Appendix A- Modifiers, page 530. Summerlin submitted a bill to FFVA identifying the following CPT codes and charges for each procedure done on the Patient's knee: 29879RT ($8,338.00); 29881RT ($8,338.00); and 2987551RT ($8,338.00). Summerlin's total bill was $25,014.00. FFVA paid Summerlin $8,986.60, $5,836.60 for the primary procedure (CPT code 29879RT) and $3,150.00 for the second procedure (CPT code 29881RT), but disallowed any payment for CPT code 2987551RT. FFVA issued an Explanation of Bill Review (EOBR) explaining that the total recommended allowance for reimbursement was $8,986.60. FFVA's "EOBR CODE DESCRIPTION" listed number "69" to justify its decision. As explained on the EOBR: 69 PAYMENT DISALLOWED: BILLING ERROR: CORRECT CODING INITIATIVE GUIDELINES INDICATE THIS CODE IS A COMPREHENSIVE COMPONENT OF CODE XXXXX BILLED FOR SERVICE(S) PROVIDED ON THE SAME DAY (29875 IS A COMPREHENSIVE COMPONENT OF 29879).[6/] Summerlin timely filed a "Petition for Resolution of Reimbursement Dispute," and FFVA timely filed a "Carrier Response to Petition for Resolution of Reimbursement Dispute," each pursuant to section 440.13(7). The Department issued its "Workers' Compensation Medical Services Reimbursement Dispute Determination" wherein it found that FFVA improperly adjusted the reimbursement, but only as to the charges billed for CPT code 2987551RT. The uncontroverted facts are that the Patient underwent a pre-authorized arthroscopic surgical procedure to the knee. Summerlin's invoice for billing provided to FFVA accurately reflected the multiple procedures performed by the surgeon, as did the Operative Report. Julie Dunn, FFVA's "medical compliance person," has worked for several insurance companies over her 25-year career. Her description of the process of reviewing medical bills and coding, a "complicated process because there's [sic] multiple resources that are adopted . . . ," is credible. However, in this instance, Ms. Dunn, who is not a professional coder (but is a member of a professional coder organization), did not review the EOBR until after Summerlin filed a reimbursement dispute. Although helpful, her testimony is not without doubt. Ms. Dunn never reviewed the Operative Report for the Patient. Further, FFVA only brought up the "59" modifier concern after the EOBR was issued, and the request for additional payment was made. Arlene Cotton, the Department's registered nurse consultant, is tasked with reviewing cases where a provider is disputing the reimbursement received. Ms. Cotton holds a bachelor's degree and a master's degree in nursing. Additionally, she is a certified professional coder who has reviewed hundreds of cases involving ambulatory surgical centers. Ms. Cotton reviewed Summerlin's petition for reimbursement by reviewing the CPT codes and the Operative Report for the Patient. Summerlin properly coded the Patient's three procedures. Ms. Cotton credibly explained the three procedures via the codes as follows: CPT code 29879, the primary procedure was an arthroplasty which was done in both the medial and the patellofemoral compartments of the knee; CPT code 29881 was a meniscectomy which was done in the medial compartment; and CPT code 29875 was a synovectomy which was done in the medial aspect, the intercondylar, the anterior lateral, and the patellofemoral. Further, Ms. Cotton described two additional synovectomies (for a total of four synovectomies) performed that were detailed in the Patient's Operative Report. However, Summerlin only billed for one synovectomy. FFVA's claim that Summerlin should have used modifier "59" instead of modifier "51" to "identify that procedure code 29875 was a . . . unique identifiable or a separately identifiable service" is misplaced. The Florida Workers' Compensation Reimbursement Manual for Ambulatory Surgical Centers, 2011 Edition (CRM ABS), requires that a surgical center use modifier 51. There was no credible evidence that Summerlin incorrectly billed for the three procedures. FFVA failed to appreciate the significance of modifier "51" and failed to appropriately reimburse Summerlin.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Financial Services, Division of Workers' Compensation, Office of Medical Services, enter a final order affirming the Reimbursement Dispute Determination issued April 24, 2012, wherein the Department directed FFVA Mutual Insurance Company to pay a total of $13,155.60 for the reimbursement claim filed by Summerlin. DONE AND ENTERED this 16th day of November, 2012, in Tallahassee, Leon County, Florida. S LYNNE A. QUIMBY-PENNOCK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 16th day of November, 2012.
The Issue The issue for determination in this case is whether Respondent’s application of a fair rental value system of property cost reimbursement to Petitioner under the Florida Title XIX Long-Term Care Medicaid Reimbursement Plan is appropriate.
Findings Of Fact Petitioner, CONSULTING MANAGEMENT AND EDUCATION, INC., d/b/a GULF COAST NURSING AND REHABILITATION CENTER (CME), is the licensed operator of a 103-bed nursing home in Clearwater, Florida, which is presently known as GULF COAST NURSING AND REHABILITATION CENTER (GULF COAST). CME participates in the Florida Medicaid Program as an enrolled provider. Respondent, AGENCY FOR HEALTH CARE ADMINISTRATION (AHCA), is the agency of the State of Florida authorized to implement and administer the Florida Medicaid Program, and is the successor agency to the former Department of Health and Rehabilitative Services, pursuant to Chapter 93-129, Laws of Florida. Stipulated Facts Prior to 1993, the GULF COAST nursing home facility was known as COUNTRY PLACE OF CLEARWATER (COUNTRY PLACE), and was owned and operated by the Clearwater Limited Partnership, a limited partnership which is not related to CME. In 1993 CME agreed to purchase, and did in fact purchase, COUNTRY PLACE from the Clearwater Limited Partnership. Simultaneous with the purchase of COUNTRY PLACE, CME entered into a Sale/Leaseback Agreement with LTC Properties, Inc., a Maryland real estate investment trust which engages in the financing of nursing homes. The Purchase and Sale Agreement between Clearwater Limited Partnership and CME was contingent upon the Sale/Leaseback Agreement and the proposed Lease between CME and LTC Properties, Inc. On September 1, 1993, CME simultaneously as a part of the same transaction purchased COUNTRY PLACE, conveyed the facility to LTC Properties, Inc., and leased the facility back from LTC Properties, Inc. As required, CME had notified AHCA of the proposed transaction. AHCA determined that the transaction included a change of ownership and, by lease, a change of provider. CME complied with AHCA's requirements and became the licensed operator and Medicaid provider for COUNTRY PLACE. Thereafter, CME changed the name of the facility to GULF COAST. After CME acquired the facility and became the licensed operator and Medicaid provider, AHCA continued to reimburse CME the same per diem reimbursement which had been paid to the previous provider (plus certain inflation factors) until CME filed its initial cost report, as required for new rate setting. In the normal course of business, CME in 1995 filed its initial Medicaid cost report after an initial period of actual operation by CME. Upon review of the cost report, AHCA contended that the cost report was inaccurate and engaged in certain "cost settlement" adjustments. During this review, AHCA took the position that CME's property reimbursement should be based on FRVS methodologies rather than "cost" due to the lease. In November of 1995, CME received from AHCA various documents which recalculated all components of Petitioner's Medicaid reimbursement rates for all periods subsequent to CME's acquisition of the facility. In effect, AHCA placed CME on FRVS property reimbursement. The practical effect of AHCA's action was to reduce CME's property reimbursement both retroactively and prospectively. The retroactive application would result in a liability of CME to AHCA, due to a claimed overpayment by AHCA. The prospective application would (and has) resulted in a reduction of revenues. CME is substantially affected by AHCA's proposed action and by Sections I.B., III.G.2.d.(1), V.E.1.h., and V.E.4. of the Florida Medicaid Plan. Additional Findings of Fact The Florida Medicaid Plan establishes methodologies for reimbursement of a nursing home's operating costs and patient care costs, as well as property costs. The dispute in this matter relates only to reimbursement of property costs. CME as the operator of the GULF COAST nursing home facility is entitled to reimbursement of property costs in accordance with the Florida Medicaid Plan. CME as the operator of the GULF COAST facility entered into a Florida Medicaid Program Provider Agreement, agreeing to abide by the provisions of the Florida Medicaid Plan. The Sale/Leaseback Agreement entered into by CME and LTC Properties Inc. (LTC) specifically provides for a distinct sale of the nursing home facility to LTC. LTC holds record fee title to GULF COAST. LTC, a Maryland corporation, is not related to CME, a Colorado corporation. The Florida Medicaid Plan is intended to provide reimbursement for reasonable costs incurred by economically and efficiently operated facilities. The Florida Medicaid Plan pays a single per diem rate for all levels of nursing care. After a nursing home facility's first year of operation, a cost settling process is conducted with AHCA which results in a final cost report. The final cost report serves as a baseline for reimbursement over the following years. Subsequent to the first year of operation, a facility files its cost report annually. AHCA normally adjusts a facility's reimbursement rate twice a year based upon the factors provided for in the Florida Medicaid Plan. The rate-setting process takes a provider through Section II of the Plan relating to cost finding and audits resulting in cost adjustments. CME submitted the appropriate cost reports after its first year of operation of the GULF COAST facility. Section III of the Florida Medicaid Plan specifies the areas of allowable costs. Under the Allowable Costs Section III.G.2.d.(1) in the Florida Title XIX Plan, a facility with a lease executed on or after October 1, 1985, shall be reimbursed for lease costs and other property costs under the Fair Rental Value System (FRVS). AHCA has treated all leases the same under FRVS since that time. AHCA does not distinguish between types of leases under the FRVS method. The method for the FRVS calculation is provided in Section V.E.1.a-g of the Florida Medicaid Plan. A “hold harmless” exception to application of the FRVS method is provided for at Section V.E.1.h of the Florida Medicaid Plan, and Section V.E.4 of the Plan provides that new owners shall receive the prior owner’s cost-based method when the prior owner was not on FRVS under the hold harmless provision. As a lessee and not the holder of record fee title to the facility, neither of those provisions apply to CME. At the time CME acquired the facility, there was an indication that the Sale/Leaseback transaction with LTC was between related parties, so that until the 1995 cost settlement, CME was receiving the prior owner’s cost-based property method of reimbursement. When AHCA determined that the Sale/Leaseback transaction between CME and LTC was not between related parties, AHCA set CME’s property reimbursement component under FRVS as a lessee. Property reimbursement based on the FRVS methodology does not depend on actual period property costs. Under the FRVS methodology, all leases after October 1985 are treated the same. For purposes of reimbursement, AHCA does not recognize any distinction between various types of leases. For accounting reporting purposes, the Sale/Leaseback transaction between CME and LTD is treated as a capital lease, or “virtual purchase” of the facility. This accounting treatment, however, is limited to a reporting function, with the underlying theory being merely that of providing a financing mechanism. Record fee ownership remains with LTC. CME, as the lease holder, may not encumber title. The Florida Medicaid Plan does not distinguish between a sale/leaseback transaction and other types of lease arrangements. Sections IV.D., V.E.1.h., and V.E.4., the “hold harmless” and “change of ownership” provisions which allow a new owner to receive the prior owner’s method of reimbursement if FRVS would produce a loss for the new owner, are limited within the Plan’s organizational context, and within the context of the Plan, to owner/operators of facilities, and grandfathered lessee/operators. These provisions do not apply to leases executed after October 1, 1985. Capital leases are an accounting construct for reporting purposes, which is inapplicable when the Florida Medicaid Plan specifically addresses this issue. The Florida Medicaid Plan specifically addresses the treatment of leases entered into after October 1985 and provides that reimbursement will be made pursuant to the FRVS method.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Petitioner be reimbursed for fiscal year 1979 and 1980 in accordance with the foregoing adjustments. DONE and ENTERED this 17th day of December, 1982, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 17th day of December, 1982.
The Issue Whether Respondent, Department of Financial Services, Division of Workers’ Compensation, Medical Services (the Department), correctly determined the amount of reimbursement Petitioner, Zenith Insurance Company (Zenith), owes to Lawnwood Regional Medical Center (Lawnwood) for medical services, pursuant to section 440.13(7), Florida Statutes (2018).1/ More specifically, the issues raised in this case are: whether Zenith properly adjusted or disallowed payment by paying what it believed were “reasonable” charges for the Workers’ Compensation medical services provided; whether the Department’s consideration of a “Stop-Loss” percentage-based methodology, as opposed to a per diem rate, may serve as a basis for reimbursement; and what, if any, is the additional amount Zenith owes to Lawnwood for reimbursement in this case.
Findings Of Fact Parties and Participants The Department is the state agency responsible for administration of the Florida’s Workers’ Compensation process set forth in chapter 440. As such, it has exclusive jurisdiction to decide any matters concerning reimbursement for medical services under this process. See § 440.13, Fla. Stat. Zenith is a carrier as defined by section 440.13(1)(c). Lawnwood, a non-party, is a health care facility as defined by section 440.13(1)(g). Lawnwood is part of a network known as East Florida Division, Inc. (East Florida), a division of HCA Inc. Parallon, a non-party, manages the billing, revenue cycle management, and reimbursement dispute process for certain hospitals, including Lawnwood. (Jt. Stip. Facts, ¶¶ 33 and 34). Parallon filed the Petition for Resolution of Reimbursement Dispute in this case on behalf of Lawnwood. Coventry Health Care Workers Compensation, Inc., and/or Coventry Life and Health Insurance Company on behalf of First Health Group Corp. (Coventry), serves as a “middleman” between insurance carriers and health care providers. As explained by Carol Brodie, Coventry offers carriers, such as Zenith, access to special rates it has negotiated with health care facilities and providers. Essentially, Zenith is a third-party beneficiary of the rates negotiated between East Florida and Coventry. Medical Services at Issue Lawnwood provided health services to a workers’ compensation patient (patient) from January 21 through 25, 2016. The patient was to be treated for a routine outpatient surgical procedure to release an extensor tendon of his index finger. According to the unrefuted testimony of Linda Joy (a Zenith employee), the surgeon inadvertently cut the patient’s digital nerve, artery, and vein. This resulted in more extensive treatment than originally contemplated. The patient was ultimately admitted to the hospital for inpatient care, and released four days later. Payment Dispute Lawnwood issued a bill to Zenith for $163,697.30 (Lawnwood bill) for the services and treatment it provided to patient. Zenith regularly audits bills it receives from health care providers and makes adjustments if necessary. These adjustments are provided to the health care provider along with the payment in the form of an Explanation of Bill Review (EOBR). The EOBR goes through each itemized line in a bill and explains to the provider what was reduced and why. In this case, Zenith sent the Lawnwood bill to Ms. Joy for review. She reviewed the patient’s relevant medical records, as well as billing documentation, and a coding summary sheet (containing codes for procedures, medications, and other services utilized by the health care and insurance industry) from Lawnwood. Ms. Joy opined the Lawnwood bill was very high for the services provided. Both of the Department’s witnesses also felt the amount billed by Lawnwood was unexpected. Andrew Sabolic (an assistant director at the Department) was surprised at Lawnwood’s bill, stating: “it was an amount that I didn’t anticipate a hospital would charge for those types of services.” Similarly, Lynne Metz (a Department employee) testified: “The charges were high compared to what I would expect.” The Department has not made any determination or review of whether the bills or charges submitted by the hospital are reasonable for the services provided. (Jt. Stip. Fact, ¶ 28). Ms. Joy and other Zenith staff compared the charges and the information on the coding summary sheet with payments of other similar providers through a medical revenue and billing database program, known as “OPTUM 360 Revenue Cycle Program” (OPTUM360). In making the comparison, Zenith also utilized databases and benchmarks that are accepted in the industry, including Medicare, the MediSpan Drug Database, Health Care Blue Book, Health Engine, other state’s workers’ compensation reimbursement formulas, usual and customary charges, and other hospitals’ charges in the same zip code as Lawnwood. Based on the OPTUM360 results and its own analysis, Zenith calculated the total reimbursement amount acceptable to other health care providers under Medicare for the same treatment and services would be $11,173.81. As a result, Zenith issued an EOBR that adjusted the Lawnwood bill and indicated, “THIS BILL HAS BEEN PRICED IN ACCORDANCE WITH THE TERMS OF YOUR CONTRACT WITH COVENTRY NATIONAL.” Along with the EOBR, Zenith provided benchmark data to Lawnwood to support its repricing, editing or adjustment of the bills at issue. (Jt. Stip. Facts, ¶¶ 36 and 37). In the EOBR, Zenith used four explanation codes: “47,” “81,” “92,” and “93,” as authorized by Florida Administrative Code Rule 69L-7.740(13)(a) and (b), to explain why payment was disallowed or adjusted. Code “47” (Payment disallowed: insufficient documentation: invoice or certification not submitted for implant) was used for the disallowance on a line item for an implant. Id. The parties agree that was appropriate. Code “81” (Payment adjusted: billing errors: payment modified pursuant to charge audit) was used for the line items other than the disallowed implant charge, based on Zenith’s review of the entire bill, line by line, and resulting adjustment. Id. Code “92” (Paid: no modification to information provided on the medical bill: payment made pursuant to workers’ compensation reimbursement manual for hospitals) was used because it is generally on all hospital bills. Id. Code “93” (Paid: no modification to information provided on the medical bill: payment made pursuant to written contractual arrangement) was used because Zenith had a contract with Coventry, and Coventry had an agreement with East Florida and Lawnwood. The Department has not adopted a rule establishing an EOBR code (or similar descriptive explanation) to be used by a carrier when the carrier identifies a bill or charge from a hospital that the carrier deems to be so excessively high so as to be an unreasonable basis for reimbursement under the Florida Worker’s Compensation Law. (Jt. Stip. Fact, ¶ 8). In other words, there is no code in rule 69L-7.740 for disputing a line item as being “unreasonable” or “too high.” Based on the repriced and adjusted bill, Zenith reimbursed Lawnwood $31,844.70 for the medical services provided. (Jt. Stip. Fact, ¶ 40). This amount was approximately three times the OPTUM360 amount of $11,173.81. When asked how Zenith made the decision to give three times the OPTUM360 amount, Ms. Brodie explained: We didn’t take the [OPTUM360] Medicare payment or even 120 or 140 percent of Medicare, which we thought was more than fair. . . . So because Florida -- I don't want to say they're problematic, but Florida bills, we're seeing such an increase in the amount of billed charges and we're seeing a lot of disputes when we don't pay to the penny of what the expected amount is, that we were trying to go above and beyond and try to make our payment more palatable, I guess, to the provider. So we wanted to be more than generous, so we came up with three times Medicare. Catherine Trotter (a Parallon employee) Parallon filed a request for reconsideration of the EOBR with Zenith after Lawnwood had reviewed it and determined $31,844.70 was insufficient. On April 18, 2016, Parallon, on behalf of Lawnwood, filed a Petition for Resolution of Reimbursement dispute with the Department challenging the EOBR and demanding additional payment. Based on Ms. Joy’s testimony, Zenith did not contest the medical necessity of the services provided by Lawnwood, nor was there evidence Zenith claimed overutilization (the appropriateness of the level and quality of health care provided to the patient). Rather, Zenith claimed, and still claims in these proceedings, it did not pay the billed amount because the individual charges were unreasonable. Contract Provisions Zenith and Parallon, on behalf of Lawnwood, agree that a reimbursement contract applies to this dispute. (Jt. Stip. Fact, ¶ 35). The Department also based the Third Determination on the contract provisions. The parties disagree, however, as to what contract provisions apply and how they should be applied. At the hearing, the parties also disputed whether the Department was provided with the applicable contractual provisions during the petition process. The undersigned need not determine who sent what to whom, because this is a de novo proceeding; and what matters is the evidence admitted at the hearing. See 120.57(1)(k), Fla. Stat.; Haines v. Dep’t of Child. & Fams., 983 So. 2d 602, 606 (Fla. 5th DCA 2008). No contract directly between Zenith and Lawnwood was presented at the hearing. The following documents, however, establish the agreement between Coventry and Lawnwood: (1) Amendment to Model Facility Agreement executed January 20, 2015 (MFA Amendment); Appendix A, “Payment Rate” (Appendix A); and Attachment 1, “Participating Facility List (Attachment 1); and (4) Amendment to Model Facility Agreement between Lawnwood and Coventry (also known as First Health), effective October 1, 2006 (Lawnwood Amendment). Parallon’s legal manager testified the MFA Amendment, Appendix A, Attachment 1, and the Lawnwood Amendment were the only contract provisions relevant to the reimbursement determination. These documents set the rates for Coventry (and its network clients such as Zenith), but do not provide definitions or terms that may have been included in the original “Model Facility Agreement.” Nonetheless, the Lawnwood Amendment defines the “Workers’ Compensation Contract Rate” as follows: “the amount payable under the terms of this Contract shall be the lesser of the Contract rate or a 5% discount from the amount payable under hospital guidelines established under any state law or regulations pertaining to health care services rendered to occupationally ill/injured employees.” Therefore, to make a determination of how much is owed, findings must be made as to what is the “Contact rate,” and what is the amount payable under “any state law or regulations” governing workplace injuries (State rate). Relevant to determining the “Contract rate,” Paragraph 3 of the MFA Amendment provides the following under “Rates”: The current rate reflected on Appendix A to the Agreement shall be increased by 3% for inpatient dates of admission and/or outpatient dates of service occurring on and after October 1, 2014. Appendix A contains a table depicting inpatient rates for Lawnwood as “35% Discount from Hospital’s Total Billed Charges.” (emphasis added). Because the services were provided after October 2014, the 35 percent discount reduced by the three percent discount results in Lawnwood’s expected contractual reimbursement rate to be 68 percent of the “Hospital’s Total Billed Charges,” from any of Coventry’s clients, including Zenith. Thus, the applicable Contract rate is 68 percent of the total bill submitted by Lawnwood. Zenith disputes the meaning of “Hospital’s Total Billed Charges” and argues for application of a “reasonableness” standard to this term. In support of this assertion, Zenith offers the following documents which relate to the agreement between Zenith and Coventry: (1) the Workers’ Compensation Network Services Agreement effective November 1, 2008, (Network Agreement); (2) Supplement A to the Network Agreement, titled “Network Access” (Supplement A); and (3) the Sixth Amendment to the Network Agreement executed November 24, 2015 (6th Amendment). The Network Agreement, Supplement A, and 6th Amendment are heavily redacted. Regardless, it is clear these documents classify Zenith as a “client,” who pays Coventry for access to a discounted rate for medical services with a “Contract Provider.” The Contract Provider and Coventry have a separate “provider agreement” setting this discounted rate. Although, the terms “contract rates,” “fee,” and “provider fee schedule,” are all defined in the Network Agreement Coventry has with Zenith, the definitions or explanation of these terms are redacted. Thus, there is no evidence these terms apply to the Lawnwood bill or the rate established between Coventry and Lawnwood. Similarly, Supplement A defines “Bill” but is also redacted. Regardless, based on the inclusion of these sections in the Network Agreement and attachments, Zenith and Coventry knew how to define special terms. If they intended to give a special meaning to the term “Hospital’s Total Billed Charges,” they could have done so. Section 2.2 of the 6th Amendment states, “[Zenith] agrees that the Contract Rate shall be applied to bills received from [Lawnwood] and further agrees that no other rates . . . shall be applied to such bills.” (emphasis added). Again, without any evidence to the contrary, “bills received” applies to the Lawnwood bill. Although Zenith argues the remaining language in section 2.2 allows it to “modify, edit or otherwise dispute any bill,” this modification must be done pursuant to the contract and workers’ compensation laws and regulations. As stated before, the EOBR regulations do not contemplate adjustments to be based on the reasonableness or fairness of prices or charges. More importantly, there is no basis in the contract provisions or state law and regulations allowing Zenith to reimburse Lawnwood in the amount of three times the OPTUM360 amount. As explained in the Conclusions of Law, the undersigned also cannot infer this as a basis for modification of the reimbursement amount. Zenith also cites to section 2.6 of Supplement A to justify its repricing based on the OPTUM360 results and other industry-used benchmark comparison data. That section, titled “Benchmarking Database,” states, “In the event [Zenith] . . . performs a bill review or repricing function on [Lawnwood’s] bills, Zenith shall . . . update at least twice annually and utilize a nationally accepted charge-benchmarking database to determine the proper percentile of charges in the applicable zip code as approved by Coventry and Client.” Granted this section contemplates that benchmark databases can be used by Zenith in repricing bills, but it speaks to the proper percentile of charges, not the reasonableness of the underlying prices or charges. There was no evidence Coventry approved a “proper percentile of charges” as required. The undersigned finds there is no language in the redacted versions of the Network Agreement, Supplement A, or 6th Amendment that changes Zenith’s requirement (as Coventry’s client) to pay the lesser of (1) 68 percent of the “Hospital’s Total Billed Charges” or (2) 5 percent less than the rate provided pursuant to applicable state laws and regulations. Finally, Zenith argues that the definition provided in a Coventry contract with an undisclosed health care provider, titled “Workers’ Compensation Product Addendum,” should be used to determine the meaning of the term “Hospital’s Total Billed Charges.” See Zenith’s PRO, p. 22-23 (“By implication, these are all in the same network and use the same contractual provisions.”). This document (Zenith’s Exhibit 39) provides definitions, if applicable, that could have been helpful in addressing Zenith’s arguments. For example, this document ties the amount owed by a Coventry client to an “allowable amount” and “eligible bill charges.” There is no evidence, however, that Zenith’s Exhibit 39 was executed by Lawnwood (or East Florida), or that the provisions in this document were part of any agreement between Coventry and Lawnwood, or Coventry and Zenith. As such, the undersigned finds it is not applicable to these proceedings. Applying the Contract rate--68 percent of the “Hospital’s Total Billed Charges” indicated in the Network Agreement and attachments--to the Lawnwood bill would require Zenith to provide a total amount of $110,859.24, or an additional amount of $79,014.54. The Workers’ Compensation System The analysis does not stop there. The next step is to determine how much would be owed at “a 5% discount from the amount payable under hospital guidelines established under any state law or regulation pertaining to health care services rendered to occupationally ill/injured employees.” The undersigned finds this provision refers to the laws and regulations under Florida’s workers’ compensation system set forth in chapter 440 and the Department’s rules. In making the determination decisions in this case, the Department used the Florida Workers’ Compensation Reimbursement Manual for Hospitals, 2014 Edition, and incorporated by reference in rule 69L-7.501 (HRM). The HRM generally provides for reimbursement based on either a per diem fee or the amount agreed upon by contract between the carrier and medical services provider. Under the section titled “Reported Charges,” the HRM provides: “charges for hospital inpatient services shall be reimbursed according to the Per Diem Fee Schedule provided in this chapter or according to a mutually agreed upon contract reimbursement agreement between the hospital and the insurer.” HRM at 15. “Per Diem” is defined as “a reimbursement allowance based on a fixed rate per calendar day which is inclusive of all services rather than on a charge by charge basis.” HRM at 35. In certain circumstances when provider bills are in excess of $59,891.34, a per diem rate is not used. Rather, the HRM provides that the reimbursement amount is calculated using a percentage methodology of 75 percent of the billed charges. This “Stop-Loss Reimbursement” is defined as “a reimbursement methodology based on billed charges once reaching a specified amount that is used in place of, and not in addition to, per diem reimbursement for an inpatient admission to an acute care hospital or a trauma center.” HRM at 17 and 35 (emphasis added). As explained below, the Stop-Loss methodology conflicts with section 440.13(12)(a), which specifically provides for establishment of a maximum reimbursement amount (MRA) based on a per diem rate for inpatient hospital care.5/ Applying the State rate--the per diem rate set forth in the HRM--Lawnwood would receive $3,850.33 per day, except for the day of discharge, which equals $11,550.99. HRM at 16. Applying the five percent discount, as set forth in the Lawnwood Amendment, to the $11,550.99 amount, the total amount payable by Zenith to Lawnwood equals $10,973.44. Because the State rate is less than the amount calculated using the Contract rate, the undersigned finds Zenith owed Lawnwood a total reimbursement amount of $10,973.44, which is less than the $31,844.70 already paid by Zenith.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Financial Services, Division of Workers' Compensation, enter a final order dismissing the petition of Lawnwood Regional Medical Center for resolution of a reimbursement dispute. DONE AND ENTERED this 8th day of May, 2019, in Tallahassee, Leon County, Florida. S HETAL DESAI 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 8th day of May, 2019.
The Issue Whether the proposed agency action challenged by Petitioner improperly relies on a rule that is an invalid exercise of delegated legislative authority; and whether Petitioner has met its burden to prove that it properly adjusted a hospital’s bill for implants used in connection with an injured worker’s scheduled outpatient surgery when judged by a lawful standard.
Findings Of Fact The Department is the state agency responsible for administration of the Workers’ Compensation Law. Ch. 440, Fla. Stat. The Department has exclusive jurisdiction to decide any matters concerning reimbursement under the Workers’ Compensation Law. See § 440.13(11)(c), Fla. Stat. Petitioner is a carrier as defined by section 440.13(1)(c). Florida Hospital, a non-party, is a health care provider as defined by section 440.13(1)(f) and (g). Under Florida’s statutory workers’ compensation system, injured workers report their injury to their employer and/or workers’ compensation insurance carrier. See Ch. 440, Fla. Stat. As a condition of eligibility for payment, a health care provider who renders services to an injured worker must receive authorization from the carrier before providing treatment. The only noted exception is emergency care, in which case, if a hospital admission occurs after emergency treatment, the carrier must be notified by the hospital within 24 hours as a condition to eligibility for payment. § 440.13(3), Fla. Stat. A health care provider providing necessary remedial treatment, care, or attendance to any injured worker must submit treatment reports to the carrier in a format prescribed by the Department. § 440.13(4)(a), Fla. Stat. In addition, after providing treatment, health care providers must submit their bills to the carriers. These bills include line items for various 4 Petitioner seeks a final order declaring a Department rule invalid. However, that can only be the result of a rule challenge under section 120.56, Florida Statutes. Here, the petition raised the invalidity of a rule as a defense to the proposed agency action which is challenged in this substantial interests proceeding. See § 120.57(1)(e)2., Fla. Stat. Proceedings initiated pursuant to section 120.57(1), including those in which defenses are raised under section 120.57(1)(e), are resolved by recommended order. health-care-related services and supplies, such as implants, pharmacy, and X-rays. The carrier may pay, adjust,5 or dispute line items in a bill on certain conditions: if a carrier finds that overutilization of medical services or a billing error has occurred, or there is a violation of the practice parameters and protocols of treatment established in accordance with chapter 440, it must disallow or adjust payment for such services or error. The disallowance or adjustment may only occur if the carrier, in making its determination, has complied with section 440.13 and the rules adopted by the Department. § 440.13(6), Fla. Stat. To adjust or disallow line items in a bill, the carrier must submit an Explanation of Bill Review (EOBR) to the health care provider. An EOBR is the “document used to provide notice of payment or notice of adjustment, disallowance or denial by a claim administrator, or any entity acting on behalf of an insurer to a health care provider containing code(s) and code descriptor(s), in conformance with subsection 69L-7.740(13), F.A.C.” Fla. Admin. Code R. 69L-7.710(1)(y). If a health care provider wants to contest a carrier’s disallowance or adjustment of payment, it must file a Petition for Resolution of Reimbursement Dispute Form (Petition for Resolution) with the Department within 45 days after receipt of the EOBR from the carrier. § 440.13(7)(a), Fla. Stat.; Fla. Admin. Code R. 69L-31.003. Coventry Health Care (Coventry) is a third-party entity that maintains a network of contracts with health care providers. Essentially, Petitioner is a third-party beneficiary of the rates negotiated between Florida Hospital and Coventry. 5 “Adjust” means payment is made with modification to the information provided on the bill. Fla. Admin. Code R. 69L-7.710(1)(b). At all times relevant to the facts of this case, Florida Hospital and Petitioner had a Coventry-negotiated PPO contract in place. The contract permitted a five percent discount for hospital outpatient services. Florida Hospital filed a Petition for Resolution with attachments, dated May 29, 2019, with the Department. Through that Petition for Resolution, Florida Hospital requested resolution of disputed carrier adjustments to a bill tendered to Petitioner for payment for services rendered to a workers’ compensation patient on December 26, 2018. Florida Hospital’s Petition for Resolution included its entire bill of charges for payment by Petitioner; however, the only items at issue are adjustments to two charges for implants that are designated on Florida Hospital’s bill as C1778 and C1767. Florida Hospital’s bill included charges of $45,961.00 for C1778 and $161,564.60 for C1767.6 The implant charges at issue were for implants used in connection with scheduled outpatient surgery for the injured worker. Petitioner does not dispute the medical necessity of the implants, nor does Petitioner dispute that the charges on the bill were Florida Hospital’s actual charges for these implants pursuant to its chargemaster. Instead, Petitioner asserts that the undersigned and the Department cannot use the implant reimbursement standard that was used by the Department in its proposed agency action, because that standard, promulgated as a rule, is an invalid exercise of delegated legislative authority. 6 The parties stipulate that C1767 was divided into two line items. In this Recommended Order, the amounts billed and/or paid for C1767 are referred to as a total of the two line items. Applicable Reimbursement Standard The Department contends that the applicable implant reimbursement standard is contained in chapter 6 of the 2014 edition of the Florida Workers’ Compensation Reimbursement Manual for Hospitals (Hospital Manual), promulgated as a rule and incorporated by reference in Florida Administrative Code Rule 69L-7.501. Chapter 6 contains the outpatient reimbursement schedules. The introduction to this chapter provides, in pertinent part: Pursuant to section 440.13(12)(a), F.S., all compensable charges for hospital outpatient care shall be reimbursed at 75 percent of usual and customary charges for medically necessary services and supplies, except as otherwise specified in this Chapter. The exception is for scheduled outpatient surgery, which shall be reimbursed at 60 percent of usual and customary charges. Usual and customary charges are reimbursed based on average charges of outpatient hospital bills, by CPT® code and HCPCS® Level II code, in a specific geographic area. Please see Appendix A of this Manual for the adopted geographic modifiers by county and Appendices B and C for a listing of the Base Rates by CPT® code and HCPCS® Level II code for non-scheduled outpatient services and scheduled surgical services. In the absence of a CPT® or HCPCS® Level II procedure code in the applicable Appendix or a mutually agreed upon contract between the hospital and the insurer/employer, reimbursement shall be made at the applicable percentage of the hospital’s usual and customary charge. (emphasis added). Specific to surgical implant reimbursement, the Hospital Manual provides at page 23 as follows: Reimbursement for surgical implant(s), also referred to as “other implant” by the National Uniform Billing Manual, and associated disposable instrumentation required during outpatient surgery billed under Revenue Code 278 shall be determined by one of the following methods: For those utilized during unscheduled surgeries, surgical implants and associated disposable instrumentation shall be reimbursed seventy-five percent (75%) of the hospital’s usual and customary charge; or For those utilized during scheduled surgeries, surgical implants and associated disposable instrumentation shall be reimbursed sixty percent (60%) of the hospital’s usual and customary charge; or According to a mutually agreed upon contract between the hospital and the insurer/employer. Note: Since there are no CPT or HCPCS level II codes for implants and associated disposable instrumentation incorporated into Appendices B or C, pursuant to the description of usual and customary charges provided in the Introduction of this chapter, these items are reimbursed at the applicable percentage of the hospital’s usual and customary charge. The Introduction section of chapter 6 properly sets forth the statutory reimbursement standard for hospitals providing scheduled outpatient surgery, “which shall be reimbursed at 60 percent of usual and customary charges.” (Hospital Manual, Ch. 6 Introduction, p. 21). Although the Hospital Manual correctly describes the statutory reimbursement standard as generally applicable to hospital scheduled outpatient surgery bills, the Hospital Manual nonetheless creates an exception to that reimbursement standard for implants. The Hospital Manual states that in the absence of a CPT or HCPCS Level II procedure code—the tools the Department chose to measure usual and customary charges—or a mutually agreed upon contract between the hospital and the insurer/employer, reimbursement shall be made at 60 percent of the hospital’s usual and customary charge. Because CPT or HCPCS Level II procedure codes do not exist for implants and the Coventry-negotiated PPO contract does not specifically address reimbursement for surgical implants utilized during hospital outpatient scheduled surgeries, the Department rule provides the reimbursement standard of 60 percent of the hospital’s usual and customary charge. Since the statutory reimbursement standard for all compensable charges for scheduled outpatient surgeries is “60 percent of usual and customary charges” as recognized by the Hospital Manual, then that is the applicable reimbursement standard for implants used by hospitals in scheduled outpatient surgery for injured workers. The portion of the Department’s rule, creating an exception to the applicable reimbursement standard for implants, solely because there are no CPT or HCPCS level II codes for implants, is contrary to the statute it purports to implement. Further, the substituted reimbursement standard for implants, allowing a hospital to be reimbursed at the hospital’s usual and customary charges, rather than the usual and customary charges by all hospitals in the same geographical area, is contrary to the statute it purports to implement. Petitioner’s Evidence Offered to Prove “Usual and Customary Charges” Both in the carrier response submitted to the Department for its Reimbursement Dispute Resolution and at the hearing in this case, Petitioner correctly contended that the appropriate reimbursement standard is “usual and customary charges” by hospitals in Florida Hospital’s community/area. However, neither in the carrier response nor at the hearing in this case did Petitioner offer evidence of the usual and customary charges of hospitals in Florida Hospital’s community or area for implants used in scheduled outpatient surgeries. Petitioner presented the testimony of its expert in medical billing, who testified that in her experience the usual and customary hospital markup for implants in Florida is 3.5 times the invoice cost of the implants. She referred to this as the “standard industry markup.” Using this standard—invoice cost times 3.5—Petitioner contends that it properly adjusted Florida Hospital’s bill for implants. The invoice cost for C1778 was $5,000.00 and the invoice cost for C1767 was $18,500.00. Petitioner’s adjustments cannot be found to be proper as it is based on a reimbursement standard that is not set forth in either the statute or the Department rule. If, as the Department’s rule specifies is generally true for scheduled outpatient surgery, the proper reimbursement standard is usual and customary charges by hospitals in the provider’s geographic area, then it was incumbent on Petitioner to prove it properly adjusted the charges based on the proper measure: the usual and customary charges by hospitals in the provider’s geographic area for implants used in scheduled outpatient surgery. Usual and customary charges are calculated based on the average charges of outpatient hospital bills in a specific geographic area. (See Hospital Manual, Ch. 6 Introduction, p. 21). Invoice cost times 3.5 is a different standard—a different measure—than usual and customary charges. As the Department recognized, charges for implants can vary greatly.7 The 7 The Department’s witness, Ms. Metz, testified that the Department is unable to use usual and customary charges in Florida Hospital’s geographical area when determining the amount of reimbursement for implants because it cannot determine a fixed reimbursement rate for something that has such a widely variable charge. Surgical implants, she testified, can range in cost from $25 to thousands of dollars and, as such, the Department cannot justify using a fixed rate for one particular implant. The difficulty in determining what the usual and customary charges in the community are does not relieve the Department of its responsibility to use that standard in determining the reimbursement amount. average charge, considering all hospital charges for implants (or specific types of implants) used in scheduled outpatient surgeries in the specific geographic area, would be the usual and customary charge. The Department does use a reimbursement standard that starts with the invoice cost and adds a markup for implants, but not in the context of hospital scheduled outpatient surgeries. A cost-plus reimbursement standard applies to implants used in connection with hospital inpatient surgeries.8 That reimbursement standard, codified in chapter 5 of the Hospital Manual, does not apply here. The Hospital Manual adopts a rule standard for defining a hospital’s community, which is considered the county in which the hospital is located. Petitioner offered no evidence under any reimbursement standard that was limited to Florida Hospital’s community. Instead, Petitioner’s expert only offered testimony regarding the “industry standard markup” for implants statewide. For this reason, too, Petitioner’s evidence fails to address the reimbursement standard it says is applicable.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Financial Services, Division of Workers’ Compensation, enter a final order dismissing the Petition for Administrative Hearing. DONE AND ENTERED this 18th day of September, 2020, in Tallahassee, Leon County, Florida. S JODI-ANN V. LIVINGSTONE 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 18th day of September, 2020. COPIES FURNISHED: Robert B. Bennett, Esquire Bennett, Jacobs and Adams, P.A. Post Office Box 3300 Tampa, Florida 33601 (eServed) John R. Darin, Esquire Bennett, Jacobs and Adams, P.A. 1925 East Second Avenue Post Office Box 3300 Tampa, Florida 33601 (eServed) Thomas Nemecek, Esquire Department of Financial Services Division of Workers’ Compensation 200 East Gaines Street Tallahassee, Florida 32399 (eServed) Keith C. Humphrey, Esquire Department of Financial Services Division of Workers’ Compensation 200 East Gaines Street Tallahassee, Florida 32399-4229 (eServed) Julie Jones, CP, FRP, Agency Clerk Division of Legal Services Department of Financial Services 200 East Gaines Street Tallahassee, Florida 32399-0390 (eServed)
Findings Of Fact Background Petitioner, United Health, Inc. (United), is the owner and operator of approximately one hundred and twenty-three nursing homes in thirteen states. In the State of Florida, it owns and operates sixteen nursing homes and one intermediate care facility for the mentally retarded that are licensed by respondent, Department of Health and Rehabilitative Services (HRS). At issue in this proceeding are the cost reports and supplemental schedules filed by thirteen nursing home facilities.1 In accordance with Medicaid guidelines, petitioner was required to annually submit cost reports to HRS reflecting its allowable costs in providing Medicaid services to its patients. HRS is designated as the state agency responsible for the administration of Medicaid funds under Title XIX of the Social Security Act. In order to be reimbursed for said costs, the facility was required to show that the costs were in conformity with Federal and State Medicaid reimbursement principles. Those principles are embodied in the Long Term Care Reimbursement Plan (Plan) adopted by the State.2 This document contains the reimbursement methodology to be used for nursing homes who provide Medicaid services. In addition, providers must comply with Health Insurance Manual 15 (HIM-15), a compendium of federal cost reimbursement guidelines utilized by HRS, and generally accepted accounting principles. By letter dated September 9, 1985 petitioner requested that HRS adjust its July 1, 1985 reimbursement rates for the thirteen facilities to reflect certain annualized costs incurred during the preceding fiscal year ending December 31, 1984. According to the letter, the adjustment was appropriate under Section V.B.I.b. of the September 1, 1984 Plan. On October 21, 1985, an HRS Medicaid cost reimbursement analyst issued a letter denying the request on the following grounds: Our review of the information submitted with the fiscal year end 12/31/84 cost reports revealed that the annualized operating and patient care costs were not documented to be new and expanded services or related to licensure and certification requirements. The annualized property cost appeared to be 1 2 various purchases, repairs and maintenance and was not documented to be capital improvements. The denial prompted the instant proceeding. B. Reimbursement Principles In General Under the Medicaid reimbursement plan adopted for use in Florida, nursing homes are reimbursed by HRS on a prospective basis for their allowable costs incurred in providing Medicaid services. This method is commonly referred to as the prospective plan, and has been in use since 1977. Under this concept, a nursing home files with HRS, within ninety days after the close of its fiscal year, a cost report reflecting its actual costs for the immediate preceding fiscal year. Within the next ninety days, the nursing home is given a per diem reimbursement rate (or ceiling) to be used during the following twelve months.3 For example, if a provider's fiscal year ended December 31, 1984, its cost report would be due by March 31, 1985. HRS would then provide estimated reimbursement rates to be used during the period from July 1, 1985 through June 30, 1986. As can be seen, there is a time lag between the end of a cost reporting year and the provider's receiving the new rate. The new reimbursement rate is based upon the provider's actual costs in the preceding fiscal year (reporting period) adjusted upward by an inflation factor that is intended to compensate the provider for cost increases caused by inflation. The prospective plan enables a provider to know in advance what rates it will be paid for Medicaid services during that year rather than being repaid on a retroactive basis. If a provider operates efficiently at a level below the ceiling, it is "rewarded" being allowed to keep a portion of the difference. Conversely, if it exceeds the caps, it is penalized to the extent that it receives only the rates previously authorized by HRS, and must absorb the shortfall. At the same time, it should be noted that the reimbursement rate is not intended to cover all costs incurred by a provider, but only those that are reasonable and necessary in an efficiently operated facility. These unreimbursed costs are covered through other provider resources, or by a future cut in services. When the events herein occurred, there were two types of adjustments allowed under the prospective plan. The first adjustment is the inflation factor, and as noted above, it 3 authorizes the provider to adjust certain reported costs by the projected rate of inflation to offset anticipated cost increases due to inflation. However, because the prospective plan (and the inflation factor) ignores other cost increases that occur during the given year, HRS devised a second type of adjustment for providers to use. This adjustment is known as the gross-up provision, and allows the annualization of certain costs incurred by a provider during a portion of the reporting period. The concept itself .s embodied in subparagraph B.1.b. of Part V of the September 1, 1984 Plan. Its use may be illustrated with the following example. A provider constructs an addition to its facility with an in-service date at the end of the sixth month of the reporting period. By reflecting only the depreciation associated with the addition during the last six months of the reporting period, the facility understates its actual costs, and is reimbursed for only one-half of the facility's depreciation during the following year. Under the gross-up provision the provider grosses up, or annualizes, the reported cost to give it a full year's effect, thereby ensuring that the next year's rates will be more realistic. Although the provision has application to this proceeding, over objection by the nursing home industry it was eliminated from the Plan on October 1, 1985 and is no longer available to providers. At hearing HRS contended the provision should have been eliminated in 1984, but through oversight remained in effect until 1985. However this contention is rejected as not being credible, and is contrary to the greater weight of evidence. Finally, neither party could recall if a request under this provision had ever been filed. They do acknowledge that HRS has never approved such a request during the more than two years when the provision was operative. In addition to the gross-up and inflation provisions, there exists an alternative means for additional rate reimbursement through what is known as the interim rate provision. Under this provision, a provider can request an interim rate increase from HRS during the period when its prospective rates are in effect to cover major unexpected costs. Assuming a request is valid and substantiated, a provider is eligible for immediate cash relief dating back to the date of the actual expense. However, because of HRS' concern that this provision was being "abused", only those costs which exceed $5,000 and cause a change of 1% or more in the total prospective per diem rate are now eligible for reimbursement. These monetary thresholds on interim rate requests became effective September 1, 1984. When these higher thresholds were imposed, HRS made representations to the nursing home industry that a provider could still utilize the gross-up provision to cover other unexpected costs. Finally, it is noted that unlike the prospective rate, an interim rate is cost settled. This means the provider's cost reports are later audited, and excess reimbursements must be repaid to HRS. This differs from the prospective plan where any "overpayments" are not subject to recoupment by HRS. Even so, a provider is limited by the reasonableness and prudent buyer concepts which serve as a check on potential abuse by a provider. The Gross-Up Feature In its relevant form, the gross-up provision was first adopted for use by HRS in its April 1, 1983 Plan.4 It required HRS to: Review and adjust each provider's cost report referred to in A. (1.) as follows: * * * b. to compensate for new and expanded or discontinued services, licensure and certification requirements, and capital improvements which occurred during the reporting year but were not included or totally accounted for in the cost report. This language was incorporated with only minor changes into the September 1, 1984 Plan and is applicable to the cost reports in issue. In its 1984 form, the provision required HRS to review and adjust each provider's cost report as follows: b. To compensate for new and expanded or discontinued services, licensure and certification requirements, and capital improvements not included or totally accounted for in the reporting year. For additional costs to be provided, the provider must furnish adequate supporting documentation. 4 Accordingly, if a cost fits within one of the three categories, HRS is required to adjust a provider's report to compensate it for the expenditure. The April 1, 1983 Plan was negotiated by the nursing home industry and HRS representatives at a meeting in Gainesville, Florida. For this reason, it is commonly referred to as the Gainesville Plan. Through testimony of negotiators who participated at the meeting, it was established that the Plan had three objectives: to give proper payment to nursing homes; to meet state and federal regulations; and to help upgrade care in the nursing homes. At the same time, the negotiators recognized that a prospective plan based on inFla.ion alone overlooked other cost increases that occurred during a given year. Therefore, the gross-up provision was added to the Plan to ensure that providers could estimate (and recoup) their future costs in as accurate a manner as possible, and to bring the plan into compliance with federal guidelines. It was also designed to ensure that a provider did not have to wait an extraordinarily long time for expenses to be recognized. In addition, HRS was hopeful that the gross-up provision would minimize the providers' reliance upon the interim rate feature (which was intended to cover only major items) thereby reducing the agency's overall workload. Indeed, the interim and gross-up features were intended to complement each other, in that one provided immediate relief on major unexpected items while the other provided a means to adjust partial year costs incurred during the reporting period. The implementation of thresholds on the interim rate provision in September, 1984 increased the importance of the gross-up provision to handle smaller items. Therefore, HRS' contention that the interim and gross-up provisions are in conflict is hereby rejected. In order for a cost to be eligible for annualization, it must fall within one of three categories: new or expanded service, a capital improvement, or a cost to meet HRS' licensure and certification requirements. The parties have stipulated that HRS' denial of United's request was based solely upon HRS' perception that the costs did not fall within any of the three categories. The three types of costs within the feature are not defined in the Plan. Testimony from the Plan's negotiators established that the language in the gross-up feature was meant to be construed broadly and to encompass many costs. For this reason, no limitations were written into the Plan. Even so, the provision was not intended to give carte blanche authority to the providers to annualize every partial cost. There is conflicting testimony regarding the meaning of the term "capital improvement" and what expenditures are included within this category. However, Sections 108.1 and 108.2 of HIM-15, of which the undersigned has taken official notice, define a capital item as follows: If a depreciable asset has, at the time of its acquisition, an estimated useful life of at least 2 years and a historical cost of at least $500, its cost must be capitalized, and written off ratably over the estimated useful life of the asset. . . * * * Betterments and improvements extend the life or increase the productivity of an asset as opposed to repairs and maintenance which either restore the asset to, or maintain it at, its normal or expected service life. Repairs and maintenance costs are always allowed in the current accounting period. With respect to the costs of betterments and improvements, the guidelines established in Section 108.1 must be followed, i.e., if the cost of a betterment or improvement to an asset is $500 or more and the estimated useful life of the asset is extended beyond its original estimated life by at least 2 years, or if the productivity of the asset is increased significantly over its original productivity, then the cost must be capitalized. The above guidelines are more credible and persuasive than the limited definition of capital item enunciated at final hearing by HRS personnel. Therefore, it is found that the HIM-15 definition is applicable to the gross-up feature and will be used to determine the validity of petitioner's claim to gross up certain expenditures. There is also conflicting testimony as to what the term "new and expanded or discontinued services" includes. Petitioner construes this item to include any costs that increase the volume of services to a resident. Therefore, petitioner posits that an increase in staffing which likewise increases services to residents is subject to annualization. Conversely, HRS construes the term to cover any costs for new or expanded services that enable a facility to provide patients with services not previously provided or to expand an existing service to more patients in the facility. The latter definition is more credible and persuasive and will be used by the undersigned in evaluating petitioner's request. Finally, petitioner interprets the term "licensure and certification requirements" to cover any costs incurred to meet staffing requirements that are required by HRS rules. According to petitioner, the category would include expenditures that are made for so-called preventive maintenance purposes and to avoid HRS sanctions. On the other hand, HRS construes the language to cover costs incurred by a provider to either meet a new licensure and certification requirement, or to correct a cited deficiency. It also points out that salary increases were intended to be covered by the inflation factor rather than through this feature of the plan. This construction of the term is more reasonable, and is hereby accepted as being the more credible and persuasive. Petitioner's Request Petitioner's fiscal year ends on December 31. According to HRS requirements its cost reports must be filed by the following March 31. In accordance with that requirement petitioner timely filed its December 31, 1984 cost reports for the thirteen facilities on or before March 31, 1985. The reports have been received into evidence as petitioner's composite exhibit 3. Attached to the reports were schedules supporting a request for gross-up of certain capital items, additions and deletions of various personnel, and union salary increases that exceeded the inflation rate. The parties have not identified the actual dollar value of the items since only the concepts are in issue. In preparing the supporting schedules, United's assistant director of research reviewed all so-called capital items purchased by the thirteen facilities during the fiscal year, and determined which were purchased after the beginning of the year.5 He then calculated the depreciation on those 5 expenditures made after the beginning of the year and has included those amounts on the supporting schedules to be annualized. Consistent with the definition contained in Sections 108.1 and 108.2 of HIM-15, those items that are in excess of $500 (after annualization), that extend the useful life of the asset for two years or more, or that increase or extend the productivity of the asset are subject to annualization. It should be noted that repairs and maintenance items, as defined in Sections 108.1 and 108.2, are excluded from this category. Petitioner next seeks to adjust its rates by grossing up the net increase in costs associated with additions and deletions of various staff during the reporting period. Any net staffing additions that provide patients with services not previously provided or that expand an existing service to more patients in a given facility are properly subject to the gross- up provision. All others should be denied. Petitioner also contends that these costs should be considered as a licensure and certification requirement since they satisfy staffing requirements under HRS rules. To the extent the filling of old positions occurred, such expenditures are appropriately covered by the gross-up provision. The remainder do not fall within the purview of the provision. Finally, petitioner seeks to adjust its rates to cover all salary increases over and above the inflation factor that were awarded to union employees pursuant to its union contract. Under petitioner's theory, if such costs were not paid, United stood to lose staff through a strike which in turn could result in licensure and certification problems. But these concerns are speculative in nature, and such an interpretation would result in automatic approval of any salary increase called for by a union contract, no matter how unreasonable it might be. Since the expenditures do not meet the previously cited criteria, they must be denied.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That petitioner's request to have its July 1, 1985 reimbursement rates adjusted for thirteen facilities to reflect annualized costs as submitted on supplemental schedules with its 1984 cost reports be approved in part, as set forth in the conclusions of law portion of this order. The remaining part of its request should be DENIED. DONE AND ORDERED this 31st day of October, 1986, in Tallahassee, Florida. DONALD R. ALEXANDER, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 31st day of October, 1986.
