Conclusions THE PARTIES resolved all disputed issues and executed a Stipulation and Agreement. The parties are directed to comply with the terms of the attached stipulation and agreement. Based on the foregoing, this file is CLOSED. DONE and ORDERED on this the 1i f- day of CJcfi>bA,y- , 2009, in Tallahassee, Florida. Filed October 12, 2009 11:38 AM Division of Administrative Hearings. DOAH Cases No. 09-0355MPI and 09-0359RU AHCA v. HEARTLAND and HEARTLAND v. AHCA Final Order w-JL H?LLY BENSON, sbARY Agency for Health Care Administration A PARTY WHO IS ADVERSELY AFFECTED BY THIS FINAL ORDER IS ENTITLED TO A JUDICIAL REVIEW WHICH SHALL BE INSTITUTED BY FILING ONE COPY OF A NOTICE OF APPEAL WITH THE AGENCY CLERK OF AHCA, AND A SECOND COPY ALONG WITH FILING FEE AS PRESCRIBED BY LAW, WITH THE DISTRICT COURT OF APPEAL IN THE APPELLATE DISTRICT WHERE THE AGENCY MAINTAINS ITS HEADQUARTERS OR WHERE A PARTY RESIDES. REVIEW PROCEEDINGS SHALL BE CONDUCTED IN ACCORDANCE WITH THE FLORIDA APPELLATE RULES. THE NOTICE OF APPEAL MUST BE FILED WITHIN 30 DAYS OF RENDITION OF THE ORDER TO BE REVIEWED. Copies furnished to: Debora E. Fridie, Esq. Agency for Health Care Administration (Interoffice Mail) William M. Furlow, III, Esquire Metzger, Grossman, Furlow & Bayo, LLC 1408 North Piedmont Way Tallahassee, Florida 32308 (U.S. Mail) The Honorable Daniel Manry Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (U.S. Mail) Kenneth Yon, Bureau Chief, MPI Agency for Health Care Administration (Interoffice Mail) Peter H. Williams, Inspector General Agency for Health Care Administration (Interoffice Mail) Finance and Accounting Agency for Health Care Administration Page 2 of3 DOAH Cases No. 09-0355MPI and 09-0359RU AHCA v. HEARTLAND and HEARTLAND v. AHCA Final Order CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished to the above named addressees by U.S. Mail and/or Interoffice Mail on this the / y of Richard Shoop, Esquire Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308-5403 Page 3 of3 7 /i 7 /2009 1::.a PH Fl\OM: 863-J8f,-8t44 Heartland Int •·n;,l Med TO: 1- ;.o-:,ss-1953 PAGE: 002 OF 011 STATE OF FLORIDA DIVISION PF ADMfN!STRATIVE 1-mARfNGS
The Issue Whether the Agency for Health Care Administration (AHCA) should take the final agency action it announced, in its July 18, 2001, letter to Petitioner, it intended to take with respect to certain Medicaid claims Petitioner had filed.
Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following findings of fact are made: The Medicaid program is a cooperative federal-state venture designed to provide health care to the needy. States participating in the program receive federal financial assistance for compensating enrolled providers for the goods and/or services they provide Medicaid recipients in accordance with the program's requirements. Florida is a participant in the Medicaid program. AHCA is the state agency responsible for making payments to enrolled Medicaid providers in Florida. In discharging this responsibility, it is assisted by a fiscal intermediary with whom it contracts. Florida has applied for, and been granted by the federal government, "waivers" in order to use Medicaid funds to pay for certain "home and community-based services" (HCBS), including, among others, adult day health care, to individuals who, if not provided these services, would require institutionalization. Among Florida's HCBS "waiver" programs is the Aged/Disabled Adult (ADA) "waiver" program, which targets needy individuals 65 years of age or older, as well as needy disabled adults aged 18 to 64, who qualify for nursing home placement. The Florida Department of Elder Affairs (DOEA), with the help of the 11 Area Agencies on Aging throughout the state and their contractors, coordinates the provision of services to these targeted individuals (which services AHCA pays for). At all times material to the instant case, the Alliance for Aging, Inc., has been the Area Agency on Aging serving Miami-Dade County. Before an individual may receive ADA "waiver" services, (s)he must undergo an assessment by DOEA or its designee to determine whether (s)he needs the required level of care to be eligible for such services. This assessment is referred to by the acronym "CARES," which stands for "Comprehensive Assessment and Review for Long Term Care Services." Individuals determined to be eligible to receive ADA "waiver" services must have a plan of care established for them by an authorized case management agency. Having such a plan of care is a prerequisite to their receiving any services (other than case management services from an authorized case management agency). They may receive only those services identified in the plan of care. At all times material to the instant case, the only two agencies authorized to provide case management services to ADA "waiver" recipients residing in Miami-Dade County were United Home Care Services, Inc. (United) and Miami-Dade County's Elderly Services unit (Miami-Dade Elderly Services). To be entitled to paid by AHCA for rendering ADA "waiver" services to eligible individuals with an authorized case management agency-developed plan of care, a provider must not only have a Medicaid provider number and be a party to a Medicaid provider agreement with AHCA enabling it to bill Medicaid for the type of services rendered, the provider must also have a referral agreement with the authorized case management agency that developed the recipient's plan of care and, in addition, the recipient must have been referred to the provider by the case management agency for purposes of receiving the services rendered (pursuant to the request of the recipient, who has the right to choose among enrolled providers qualified to provide the services). At all times material to the instant case, AHCA had in effect a rule describing Florida's HCBS "waiver" programs, including the ADA "waiver" program. The rule, Florida Administrative Code Rule 59G-8.200, provided as follows: Purpose. Under authority of Section 2176 of Public Law 97-35, Florida obtained waivers of federal Medicaid requirements to enable the provision of specified home and community-based (HCB) services to persons at risk of institutionalization. Through the administration of several different federal waivers, Medicaid reimburses enrolled providers for services that eligible recipients may need to avoid institutionalization. Waiver program participants must meet institutional level of care requirements. The HCB waiver services are designed to allow the recipients to remain at home or in a home- like setting. To meet federal requirements, Medicaid must demonstrate each waiver's cost-effectiveness. Definitions. General Medicaid definitions applicable to this program are located in Rule 59G-1.010, F.A.C. Additional descriptions of services available under this program are provided in subsection (3) of this rule. The following definitions apply: "Agency" means the Agency for Health Care Administration, the Florida state agency responsible for the administration of Medicaid waivers for home and community- based (HCB) services. "Department" means the Florida Department of Elderly Affairs (DOEA). Home and Community-Based (HCB) Waiver Services are those Medicaid services approved by the Health Care Financing Administration under the authority of Section 1915(c) of the Social Security Act. The definitions of the following services are provided in the respective HCB services waiver, as are specific provider qualifications. Since several similar services with different names may be provided in more than one waiver, this section lists them as a cluster. A general description of each service cluster is provided. Individuals eligible for the respective HCB services waiver programs may need and receive the following services: * * * (b) Adult Day Health Care and Day Health Care are services provided in an ambulatory care setting. They are directed toward meeting the supervisory, social, and health restoration and maintenance needs of adult recipients who, due to their functional impairments, are not capable of living independently. * * * (e) Case Management, Waiver Case Management, and Support Coordination are services that assist Medicaid eligible individuals in gaining access to needed medical, social, educational and other services, regardless of funding source. * * * (i) Counseling, Mental Health Services, Education and Support, and Behavioral Analysis are services provided for the diagnosis or treatment of mental, psychoneurotic, or personality disorders, or providing assistance to recipients in identifying feasible goals, providing emotional support and guidance, providing advice about community resources, or exploring possible alternative behavior patterns. * * * Respite Care is the provision of supervisory, supportive, and short-term emergency care necessary to maintain the health and safety of a recipient when the primary caregiver is not available to provide such care or requires relief from the stress and demands associated with daily care. Risk Reduction services provide care and guidance to caregivers, based on a plan of specific exercises for the recipient to increase physical capacity, strength, dexterity, and endurance to perform activities of daily living. This service also includes assessment and guidance for the recipient and caregiver to learn to prepare and eat nutritious meals and promote better health through improved nutrition. This service may include instructions on shopping for appropriate food, preparation, and monitoring of same. This service also provides guidance for budgeting and paying bills, which may include establishing checking accounts and direct deposits to lessen the risk of financial exploitation and abuse of the recipient. * * * Covered Services -- General. Services provided under the HCB services waivers include those described in paragraphs (3)(a) through (ff). The availability of these services to waiver program participants is subject to approval by the Medicaid office and is subject to the availability of the services under the specific waiver program for which a recipient has been determined eligible. Service Limitations -- General. The following general limitations and restrictions apply to all home and community-based services waiver programs: Covered services are available to eligible waiver program participants only if the services are part of a waiver plan of care ("care plan", "individual support plan", or "family support plan"). Care plan requirements are outlined in subsections (6) and (8) of this rule. The agency or its designee shall approve plans of care based on budgetary restrictions, the recipient's necessity for the services, and appropriateness of the service in relation to the recipient, prior to their implementation for any waiver recipient. Additional service limitations applicable to specific waiver programs are specified in subsections (10) through (14) of this rule. Program Requirements -- General. All HCB services waiver providers and their billing agents must comply with the provisions of the Florida Medicaid Provider Reimbursement Handbook, Non-Institutional 081, November 1996, which is incorporated by reference and available from the Medicaid fiscal agent. The following requirements are applicable to all HCB services waiver programs: The Medicaid program will deny an applicant's request if the proposed enrollment could cause the program to exceed the maximum enrollment level authorized by the Health Care Financing Administration in the applicable HCB services waiver. To be eligible to receive HCB waiver services, each applicant must receive case management services, plus at least one other HCB waiver service. * * * The Department or its designee will perform an evaluation of the level of care needed by an applicant for services when there is a reasonable indication that the applicant might need institutionalization in the near future, if the covered HCB services were not available. The Department or its designee will perform reevaluations of level of care at least annually, or as changes in the recipient's condition or community care setting may warrant. The plan of care will identify the type of services to be provided, the amount, frequency, and duration of each service, and the type provider to furnish each service. Reimbursement claims for the provision of Medicaid services not listed in the plan of care of HCB services waiver program participants are subject to denial or recoupment. In providing applicants or participants freedom of choice, the Agency or its designee must: Inform all prospective waiver program participants of the feasible alternatives available under the respective waiver program and afford recipients a freedom of choice to participate in the community program in lieu of institutional placement; Afford recipients the opportunity to choose from those enrolled providers capable of providing the covered services identified in the recipient's plan of care; and Afford all enrolled recipients the right to disenroll at any time. * * * Provider Qualifications and Provider Enrollment. To enroll and participate in the waiver programs, providers must comply with the provisions of Chapter 59G-5, F.A.C. Additional provider requirements are specified in subsections (10) through (14) of this rule. Case Management Requirements. Case managers advocate for recipients during the eligibility determination process and assist applicants in complying with requests for information, interviews, or activities required for a determination of Medicaid eligibility. Case managers will conduct a comprehensive needs assessment and identify areas in the person's life that require supports or services to reduce the risk of having to be placed in an institution. In addition, each case manager will: Begin the initial needs assessment before services are provided and complete it within 30 days of enrollment in the waiver program; Make a home visit as part of the needs assessment process; Prepare a written plan of care for each program participant and maintain the plan in the participant's case record; Reassess the plan of care at least every six months to review service goals, outcomes, and functional changes that may warrant the modification of the plan and reassessment of the recipient's level of care; After the needs assessment has been completed, maintain in each client's record case progress notes that document the provision of services; Make legible entries in the case progress notes in sufficient detail to document the case management service rendered and to allow an audit of the appropriateness of charges; Date and sign all written case record entries; Notify the Agency of all disenrollments by waiver program participants within 30 days after the effective date; and Maintain records in an accessible location for review by authorized federal and state representatives for monitoring and auditing purposes; ensure that recipient specific information is maintained as "confidential"; ensure that program, administrative, and financial information is maintained for a period of at least five years after termination of participation as a waiver service provider. If an audit has been initiated and audit findings have not been resolved at the end of five years, the records will be retained until resolution of the audit findings. Home and Community-Based Services Waiver Programs. The following are authorized HCB services waivers: (a) Aged and Disabled Waiver; * * * (c) Developmental Services Waiver; * * * Aged/Disabled Waiver. Program Summary. The aged/disabled waiver is a long-term care initiative providing HCB services to the aged and disabled as an alternative to institutional care. Services are available statewide to recipients who meet the eligibility requirements as specified in paragraph (10)(c) of this rule. Covered Services and Provider Qualifications. Providers must meet the criteria specified in Chapter 59G-5, F.A.C. In addition, providers must be under contract with the Department for the provision of HCB services available under this waiver. Provider qualifications for services are: 1. Adult Day Health Care providers must be licensed adult day health care centers in accordance with Rule 59A-16.003, F.A.C. * * * 4. Case Management providers must be CCE contractors, or community care for the disabled adults contractors, or staff of the Department who serve the community care for the disabled adults program, pursuant to Ch. 10A-10, F.A.C. * * * 7. Counseling providers must be licensed psychologists or mental health counselors pursuant to s. 490.001-490.015, F.S., licensed social workers pursuant to pursuant to s. 491.002-491.015, F.A.C., or licensed mental health centers, pursuant to s. 394.65-394.907, F.S. * * * Respite Care providers must be licensed Medicaid participating home health agencies, CCE agencies, or residential providers, pursuant to s. 400.011-400.332, F.S., s 400.401-400.454, and s. 400.616-400.629, F.S. Risk Reduction Services providers must be community care agencies, Medicaid participating home health agencies, or independent contractors, pursuant to Section 61F11-4, F.A.C. * * * Recipient Eligibility. Individuals must meet Medicaid eligibility requirements as defined by Chapter 409, F.S., and Florida's Title XIX State Plan; or be physically disabled or aged as defined by Chapter 10C-8, F.A.C., and 42 C.F.R. 435.217 and 435.726, as of October 1, 1994, the latter two hereby incorporated by reference. Recipients must be assessed as meeting level of care criteria for skilled or intermediate nursing home care as defined in Sections 59G-4.290 and 59G-4.180, F.A.C., and must be at risk for nursing facility placement without the provision of HCB services. Recipients must receive waiver case management and at least one other HCB service to be Medicaid eligible at the institutional care placement (I.C.P.) level. Program Operations. The HCB services program under this waiver shall comply with the provisions of Chapters 10A-4, 10A-5, 59A-16, 10A-8, 10A-10, 10A-11, and 10A-14, F.A.C. * * * (12) Developmental Services Waiver Program Summary. This program provides HCB waiver services to recipients with developmental disabilities who are clients of the Department of Health and Rehabilitative Serves (HRS) developmental services (DS) program, and who are eligible for admission to an intermediate care facility for the mentally retarded- developmentally disabled (ICF/MR-DD). The recipients have elected services in the community rather than in an ICF/MR-DD. Covered Services and Provider Qualifications. Providers of DS waiver services must be certified by the HRS DS program in each district where it applies to provide services. . . . * * * The Florida Medicaid Provider Reimbursement Handbook, Non-Institutional 081, November 1996, which was incorporated by reference in Florida Administrative Code Rule 59G-8.200, stated the following, among other things, in its first chapter, about Florida's HCBS "waiver" programs: Description: The Social Security Act allows states to obtain waivers to provide home and community-based services (HCBS) to target groups of recipients. These services are designed to help the recipient avoid placement in expensive and restrictive institutional settings. To receive waiver services, a recipient must be enrolled in the specific waiver program. HCBS Waiver Provider Enrollment: In order for a provider to be reimbursed for rendering a home and community-based service to an eligible recipient, the provider must be enrolled as a waiver-specific HCBS provider. All home and community-based services must be prior approved by a waiver case manager. Note: See the waiver specific Coverage and Limitations Handbook for additional information about HCBS provider enrollment. Florida HCBS Programs: Florida has seven HCBS waiver programs. They are: Aged/Disabled Adult Waiver * * * Developmental Services Waiver * * * Aged/Disabled Adult Waiver: The Aged/Disabled waiver serves frail elderly and adults with disabilities who are at risk of placement in a nursing facility. * * * Developmental Services Waiver: The Developmental Services waiver serves people who are at risk of placement in an intermediate care facility for the developmentally disabled (ICF/DD). * * * Chapter 2 of the Florida Medicaid Provider Reimbursement Handbook, Non-Institutional 081, November 1996, included the following information about "[p]rovider [e]nrollment": Introduction: Every facility, individual and group practice must submit an application and sign an agreement in order to provide Medicaid services. HCBS and Targeted Case Management: Home and community-based services (HCBS) and targeted case management providers must enroll through the state agency or state-contracted entity that administers the waiver or targeted case management service. Note: See the waiver-specific or Targeted Case Management Coverage and Limitations Handbook for the specific enrollment requirements. Chapter 3 of the Florida Medicaid Provider Reimbursement Handbook, Non-Institutional 081, November 1996, included the following information about "Medicaid [r]ecipient [e]ligibility": Eligibility Determination Eligibility Requirements: To qualify for Medicaid an individual must meet specific eligibility requirements such as age, citizenship or resident alien status, Florida residency, and either having a Social Security Number of proof of having applied for one Who Determines Eligibility: Eligibility for Medicaid is determined by the Florida Department of Health and Rehabilitative Services (HRS), or by the federal Social Security Administration (SSA) for certain categories of elderly and disabled individuals. In January 1997, HRS will be divided into two departments: The Department of Health and the Department of Children and Families. The Department of Children and Families will be responsible for HRS' recipient eligibility functions. * * * Eligibility for HCBS and Targeted Case Management: In addition to being eligible for Medicaid, recipients must meet specific eligibility criteria to enroll in a HCBS waiver or to receive targeted case management. Note: See the program-specific Coverage and Limitations Handbook for the additional eligibility criteria. Eligibility Periods: . . . . A provider must verify a recipient's eligibility prior to rendering a service. The Medicaid Computer System Introduction: The Florida Medicaid Management Information System (FMMIS) is the system that processes claims, makes payments to Medicaid providers, and issues Medicaid identification cards. Medicaid will not reimburse a claim unless FMMIS shows that a recipient is eligible on the date of service. * * * Program Codes: The Medicaid program for which a recipient is eligible is identified on the FMMIS by a unique alpha identifier called a program code. The provider needs to know a recipient's program code before providing services . . . . * * * Verifying Eligibility, HMO and MediPass Introduction: Information about the recipient's eligibility and Medicaid coverage is maintained on the Florida Medicaid Management Information System (FMMIS). The system is maintained by the state Medicaid fiscal agent. The provider verifies eligibility and obtains benefit information by accessing the system. This section discusses how a provider can access the system to obtain this information. Ways to Access Recipient Information: Eligibility and benefit information are available to providers via the following: Medicaid eligibility verification terminals (MEVS) Computer software that can be added to an office computer Automated fax response Automated voice response Human operator Information Available: The following recipient eligibility information is available for all the above sources: Denture limitations Drug caps and other service limitations HMO or MediPass membership Third party insurance coverage and policy number Medicare number Medicare part A & B coverage * * * Automated Fax Response -- FaxBack: This verification method requires a fax machine and a touch tone telephone. To obtain eligibility information, the provider enters the 9-digit provider number and one of the following: 10-digit recipient Medicaid ID number; 8-digit plastic card control number; or the recipient's social security number and date of birth. A voice response message will be received giving basic eligibility status, followed immediately by a hard copy report to the provider's fax location. The hard copy fax page serves as the provider's verification of eligibility. This method is available 24 hours a day, seven days a week. If a provider needs additional information on the recipient's eligibility for the service, he can call Unisys Provider Services at 1-800-289-7799. English and Spanish-speaking operators are available. * * * Human Operator Verification: A provider can verify eligibility and determine limitation by calling Unisys Provider Services at 1- 800-289-7799, Monday through Friday, 7:00 a.m. to 6:00 p.m., eastern standard time. This phone number is on the back of the Medicaid ID card. English and Spanish- speaking operators are available. The provider gives the Unisys operator the control number on the front of the recipient's Medicaid ID card or the recipient's ten-digit Medicaid ID number and requests information as needed. Providers are limited to two inquiries per phone call. The operator will tell the provider if the recipient is Medicaid eligible on the date of service, what the recipient's ten-digit Medicaid ID number is, and if the recipient has exceeded the Medicaid coverage limitations. The operator will not give the provider an audit number; therefore the provider will not have proof of the recipient's eligibility if a discrepancy arises. Chapter 6 of the Florida Medicaid Provider Reimbursement Handbook, Non-Institutional 081, November 1996, "describe[d] the Non-Institutional 081 claim form, the time limits for submission, and how to complete and submit the form for payment." It read, in pertinent part, as follows: Purpose and Description Purpose: This handbook is intended for use by providers who serve Medicaid recipients. It explains the procedures for obtaining reimbursement for services that are billed on the Non-Institutional 081 claim form. Coverage and Limitations Handbook: This handbook must be used in conjunction with the provider's program specific Coverage and Limitations Handbook, which contains policy information about the specific procedures that Medicaid will reimburse. Providers Who Bill on the Non Institutional 081: Targeted case management providers and the home and community based services providers must complete and submit Non- Institutional 081 claim forms to receive reimbursement from Medicaid. . . . Chapter 7 of the Florida Medicaid Provider Reimbursement Handbook, Non-Institutional 081, November 1996, described "[a]dditional filing requirements," including the following: Service Authorization Requirements Home and Community-Based Services: All home and community-based services (HCBS) must be service authorized by the recipient's case manager and be included in the recipient's plan of care. Medicaid may recoup reimbursement for services that were not service authorized or authorized in the recipient's plan of care. Note: See the waiver-specific Coverage and Limitations Handbook for additional information on the plan of care. * * * Appendix D of the Florida Medicaid Provider Reimbursement Handbook, Non-Institutional 081, November 1996, contained a glossary of terms used in the handbook, which read, in pertinent part, as follows: * * * Case Manager: A case manager for Home and Community-Based Waiver services is the person who writes a recipient's plan of care and authorizes, in advance, the services that will be provided to a recipient. * * * Home and Community-Based Services Waiver: A specific program and set of services authorized under Section 1915(c) of the Social Security Act that are designed to assist recipients to avoid institutionalization. * * * Recipient: A person who is eligible to receive services under Medicaid. Appendix E of the Florida Medicaid Provider Reimbursement Handbook, Non-Institutional 081, November 1996, listed "eligibility program codes." Of the codes listed, only two, MW A and MW C, were for "home and community based services." The Florida Medicaid Aged and Disabled Waiver Provider Handbook (first published in 1993) was the "waiver specific Coverage and Limitations Handbook" referred to in the Florida Medicaid Provider Reimbursement Handbook, Non-Institutional 081, November 1996, that provided additional information about Florida's ADA "waiver" program. Chapter 10 of the Florida Medicaid Aged and Disabled Waiver Provider Handbook discussed "[p]rovider [p]articipation" in the ADA "waiver" program. It read, in pertinent part, as follows: Becoming Enrolled as a Medicaid Provider: 10.4 To become a provider of Home and Community Based Aged/Disabled Waiver services in the Medicaid program you must: not be currently suspended from Medicare or Medicaid in any state; meet requirements described in Section 10C-7.0527, F.A.C.; maintain a contract with the Area Agency on Aging (AAA) or Lead Agency with standards for participation in the Community Care for the Elderly and/or the Community Care for the Adult Disabled Programs; and Maintain full compliance with Title VI of the Civil Rights Act of 1964 and the Rehabilitation Act of 1973. To request a provider enrollment package contact the Medicaid Waiver Specialist at the Area Agency on Aging located in your area. Refer to Chapter 13, Section 13-4 for the address and telephone number of the Area Agency on Aging offices. The enrollment package includes an application and a noninstitutional professional technical agreement. Complete and forward the completed application package to the Medicaid Waiver Specialist located at your local Area Agency on Aging. The Medicaid Waiver Specialist will sign the application and forward it to Consultec.[2] The specialist's signature verifies that the provider application information is complete and the criteria for enrollment have been met. Consultec will not accept any application that has not been signed by the Medicaid Waiver Specialist. After your application is approved, Consultec will send you a Medicaid provider number and a provider handbook for the Medicaid Aged/Disabled Waiver program. If you have a Medicaid provider number and request participation in this program, your 7-digit base number will remain the same; the 2-digit suffix will be different for each program. Use your provider number to bill Medicaid. Medicaid then pays you for covered services that you furnish to Medicaid eligible waiver recipients. Chapter 11 of the Florida Medicaid Aged and Disabled Waiver Provider Handbook described the "[c]overed [s]ervices and [l]imitations" of the ADA "waiver" program. It read, in pertinent part, as follows: * * * Program Purpose: 11.3 The purpose of the Aged/Disabled Home and Community Based Services Waiver program is to promote, maintain, and restore health, or minimize the effects of illness and disability in order to delay or prevent institutionalization. These services allow persons to remain at home or in a home-like setting Covered Services: 11.4 Individuals determined eligible for this program may be entitled to the following services: Adult Day Health Care Case Management Respite Care * * * Counseling * * * General Description of Covered Services: 11.5 There are specific problems experienced by the physically disabled or elderly who are at risk of nursing home placement. Supportive services which strengthen and foster their independence allow the elderly and disabled to remain at home or in a community setting. Waiver services are defined as follows: Adult Day Health Care: Adult Day Health Care (ADHC) is an organized day program of therapeutic, social, and health activities and services designed to restore or maintain the recipient's optimal capacity for self-care. These services are provided to persons who are at least 18 years of age and who have physical or mental functional impairments. Covered services under Adult Day Health Care include: Rehabilitation Services including: physical therapy occupational therapy speech therapy. Medical screening services, emphasizing prevention and continuity of care, which include routine blood pressure checks, diabetic maintenance checks, or rehabilitation therapies not covered under the regular Medicaid program and which are provided at the site. Nursing services which include periodic evaluation, medication supervision, and supervision of self-care services directed toward activities of daily living and personal hygiene. Nutritional services which include dietary and nutritional education. Social services to help with personal and family problems. Planned group therapeutic activities which are in accordance with the goals of the recipient's individual treatment plan. Transportation to and from Adult Day Health Care services. Meal services which provide at least one meal per day of suitable quality and quantity. Case Management Services: Case management is a way to identify an individual recipient's needs, develop intermediate and long term goals, and monitor the services provided to the individual. Case management provides specialized assistance to each individual who wants and needs help to choose and obtain resources and services. Case managers coordinate the delivery of the services in the best way to meet each individual's needs. The amount of assistance is adjusted for each individual recipient. The principle is to develop each individual's capability to negotiate and obtain needed and appropriate services on his/her own behalf. Essential components of effective case management services are: screening of services needs; referring to available resources; conducting a comprehensive needs assessment; developing an individual service plan development; developing a plan of implementation; accessing resources to meet needs identified in service plan; monitoring and following up to assure continued appropriateness of the services; assessing progress toward the original goals; and reassessing recipient need and determining of ongoing service needs. Respite Care: Respite care is a demand-response service to provide supervision and companionship to physically disabled persons or infirm elderly persons for a specified period of time. Respite care may include personal care. The purpose of respite care is to relieve the primary caregiver from the stress and demand associated with providing daily care. Providing the caregiver with relief helps to maintain a healthy living environment. * * * Counseling Services: Counseling involves exploring a recipient's interests and skills, problem solving, emotional support and guidance and encouragement for adopting new behaviors, and setting of realistic goals. It also may include diagnosis and structured treatment of psychological and psychosocial problems. This service is provided by a licensed psychologist, a licensed clinical social worker, or a licensed mental health counselor. * * * Recipient Eligibility: 11.6 To become eligible for this Medicaid program an individual must meet the following eligibility criteria: be aged (65 or older); or be a disabled adult (18 to 64); be Supplemental Security Income (SSI) eligible; or meet the income and assets limits for the Institutional Care Program (ICP); meet level of care requirements as described in Section 11.7; have a plan of care executed by the case manager as described in Section 11.8 below; and have a waiver identification number assigned by the Medicaid Waiver Specialist. Level of Care Determination: 11.7 To determine if an individual is at risk of needing the care provided in an institution, a client assessment must be completed. The assessment is used to identify the individual's social resources and supports and his physical and mental ability to carry out the activities of daily living. This helps to determine the individual's functional impairment and risk of institutionalization. The case manager uses this information to develop a client- centered plan of care. The assessment procedures are: SSI eligibles must have a completed HRS Form 1055 signed by a registered nurse or medical doctor which verifies that the applicant is at risk of institutionalization. ICP eligibles must have a level of care determination provided by the Aging and Adult CARES team using the Nursing Home Level of care for Pre-Admission Screening, HRS Form 3049. For more information regarding the assessment process, please refer to the Client Assessment Manual. Plan of Care: 11.8 A plan of care is a written document which describes the service needs of a recipient and specifies the services to be provided (type), how often the service is to be provided (frequency), and how long the services will continue to be provided (duration). The purpose of the care plan is to enable the case manager and the recipient to summarize the findings of the recipient's evaluation; to identify realistic goals for the recipient; to recognize the barriers to attaining the goals; and then, to work toward removing these barriers and achieving the stated goals. It is an extension of the client assessment and identifies services required to maintain the recipient in the community, reduce the functional limitations noted in the assessment and meet other identified needs. The case manager and recipient work together to develop a plan of care. The recipient's family may help in the development of the plan of care. To assure appropriate case planning, the case manager will consult with the physician, physician's assistant, nurse, other health care providers working with the recipient, and other specialized consultants as needed. The case manager must establish a plan of care before services are rendered and Medicaid is billed. It must be signed and dated by the case manager and the recipient. The plan of care must: specify the level of care, and the needs or problems to be resolved to avoid institutionalization; specify improved or resolved problems by recording the date that services were no longer necessary and were stopped; specify the effective date for the start of in-home service; specify the type of services to be provided and who will provide them; specify the probable duration and desired frequency of service provision; be signed (certified) and dated by the case manager and recipient and, if the plan of care is still appropriate, recertified every 90 days; be updated any time the recipient's condition changes or every six months at a minimum; and be kept on file by the agency and available for review for a period of five years after the termination of services. * * * Service Limitation and Exclusions: 11.12 The plan of care must describe the services to be provided (type), how often the service is to be provided (frequency), and how long it will continue to be provided (duration). Services provided beyond the frequency and duration indicated on the care plan are not allowable. If the type, duration or frequency need to be changed, the case manager must approve the new schedule and update to the plan of care. Medicaid reimbursement is limited to necessary services. Service Authorization: 11.13 Case managers authorize only services which are on the written plan of care. Chapter 12 of the Florida Medicaid Aged and Disabled Waiver Provider Handbook contained the following discussion on "[r]estrictions on [b]illing": You are required to bill your usual and customary fee. Medicaid will pay the maximum fee, or your usual and customary fee, whichever is lower. All services must be authorized by an enrolled Medicaid aged/disabled waiver case manager and must be on the recipient's written plan of care. Petitioner is now, and has been at all times material to the instant case, licensed by AHCA to operate an adult day care center (North Pointe) in Miami-Dade County. Nadine Proctor is now, and has been at all times material to the instant case, the owner and administrator of North Pointe. Ms. Proctor is college educated. She has taken at least one graduate-level course (in public administration at Florida International University). In or around 1997, Ms. Proctor contacted the Alliance for Aging, Inc. (Alliance), by telephone and spoke with Lynn Pollack, one of the Alliance's Medicaid Waiver Specialists, about Petitioner becoming enrolled as a Medicaid provider. Ms. Proctor indicated to Ms. Pollack that she wanted Petitioner enrolled as a provider of adult day health care services to recipients in the state's ADA "waiver" program. Petitioner was "qualified" to provide these services by virtue of its being licensed to operate North Pointe as an adult day care center. Ms. Pollack explained, accurately, to Ms. Proctor "how the [ADA] 'waiver' [program] worked," including its assessment, plan of care development, and referral features (that are described above).3 She emphasized to Ms. Proctor that, to participate in the program as an adult day health care service provider, Petitioner needed, not only to enroll as a Medicaid provider and obtain (from AHCA, through its fiscal intermediary) a Medicaid provider number, but also to enter into a referral agreement with United or Miami-Dade Elderly Services. Following her telephone conversation with Ms. Proctor, Ms. Pollack mailed Ms. Proctor a Florida Medicaid Provider Enrollment Application, along with written "instructions on how to complete the application." There were directions on the application that, upon completion, it be returned to the Alliance for approval (before the completed application was sent to AHCA's fiscal intermediary). Ms. Proctor completed the application and mailed it back to the Alliance. "[T]here were errors on the application," however. Ms. Pollack informed Ms. Proctor of these errors. Ms. Proctor made several unsuccessful attempts to submit an error-free application. Finally, in June of 1997, she paid a visit to the Alliance's offices and met with Ms. Pollack in person. Ms. Pollack "explained [to Ms. Proctor] step-by-step exactly how to do the application." Ms. Pollack also "went over . . . again" with Ms. Proctor the requirements of the state's ADA "waiver" program. In so doing, she reminded Ms. Proctor that having a referral agreement with United or Miami-Dade Elderly Services was an absolute condition precedent to Petitioner's participation in the program as an adult day health care service provider. With Ms. Pollack's help, Ms. Proctor correctly filled out the Florida Medicaid Provider Enrollment Application. Ms. Proctor indicated on the application that Petitioner was seeking to become an adult day health care service provider as part of the state's ADA "waiver" program. Ms. Pollack approved the completed application on June 13, 1997. She then sent it to AHCA's fiscal intermediary, Unisys Corporation (Unisys). Unisys sent Petitioner the following letter dated August 16, 1997: Welcome to the Florida Medicaid Program. Your Florida Medicaid provider number is 6754961 00. Please use you number whenever you bill Medicaid for the following services and invoice type beginning 06/11/97. Service: HOME AND COMM BASED SVCS Invoice Type: FMMIS Non-Institutional Claim Form. The enclosed handbooks explain how to bill Medicaid and how to order additional invoices (billing) forms. We supply invoices that are unique to Medicaid at a nominal charge. An initial supply is enclosed for your convenience. If you have any questions or problems about billing matters or claims, please telephone: Unisys Corporation Fiscal Agent Contractor Toll Free 1-800-289-7799 If Unisys cannot resolve your problems, call your AHCA area Medicaid office. A list of area offices and their telephone numbers is included in your reimbursement handbook. Thank you for participating in Medicaid. AHCA also sent Petitioner a letter dated August 16, 1997. It read as follows: We are pleased that you have chosen to join the Florida Medicaid program and serve the needs of our Medicaid eligible recipients. We are dedicated to making your participation in the program straightforward and productive. Enclosed are handbooks that explain how the Medicaid program operates and how to bill for services that you have agreed to provide. We feel that your enrollment in the Florida Medicaid program is a statement that you want to make a difference in the availability and quality of health care for every Florida citizen who qualifies for Medicaid and we will always try to meet your commitment with a willingness to serve your needs. Enclosed is a sheet that contains you unique Medicaid number. Please remember to always use your number when billing Medicaid. If you encounter a problem or have a question, call Unisys Provider services at 1-800-289- 7799 or if out-of-state 1-800-955-7799. For provider enrollment questions, call 1-800- 377-8216. The Unisys phone lines are staffed especially to assist you, but after contacting them if you still have a problem, call your Medicaid area office. The telephone numbers for area Medicaid offices are listed in Appendix C of your Medicaid Provider Reimbursement Handbook. The area offices are primary sources of information concerning Medicaid policy and covered services. The success of the Florida Medicaid program is dependent primarily on providers like you who furnish services directly to recipients. Thank you for your participation and your efforts to maintain and improve the health of Florida Medicaid recipients. Ms. Proctor "never received" the handbooks referenced in Unisys' and AHCA's August 16, 1997, letters to Petitioner. A few months after her June 1997 meeting with Ms. Pollack, Ms. Proctor telephoned Ms. Pollack and angrily complained that "nobody [was] giving her any referrals" and that she was being "discriminat[ed] against."4 Ms. Pollack asked Ms. Proctor if she had, on behalf of Petitioner, executed a referral agreement. Ms. Proctor responded that she had not because "the process took too long and [United and Miami-Dade Elderly Services] were giving her the runaround." Ms. Pollack told Ms. Proctor, as she had done previously, that Petitioner was "not going to get any referrals" unless it had a referral agreement with United or Miami-Dade Elderly Services. John Saxon, who was "working for" a Florida state senator, subsequently telephoned Ms. Pollack and indicated that the senator "wanted to find out what was going on" with Ms. Proctor. Ms. Pollack "explained the situation to [Mr. Saxon]" and "how the [ADA} 'waiver' program worked," pointing out, among other things, that Petitioner "need[ed] to have [referral] agreements [with United and Miami-Dade Elderly Services] in order to get referrals" from them. Mr. Saxon advised Ms. Pollack that "he would make sure that [Ms. Proctor] underst[ood] [this]." Thereafter, Mr. Saxon telephoned Ms. Pollack again and "assured [her] that [Ms. Proctor] understood." On or about December 17, 1997, Ms. Proctor sent Unisys a check in the amount of $30.00 to obtain the handbooks referenced in Unisys' and AHCA's August 16, 1997, letters to Petitioner. The check was received and cashed. In or around April of 1998, Ms. Proctor asked for and was granted a meeting with the Alliance's executive director, John Stokesberry. Ms. Proctor's pastor and Mr. Saxon accompanied Ms. Proctor to the meeting. Linda Levin, one of Mr. Stokesberry's subordinates, was also in attendance at the meeting. As she had done during her last telephone conversation with Ms. Pollack, Ms. Proctor complained to Mr. Stokesberry at the meeting that "no one was referring clients to her" and therefore "she wasn't receiving any [Medicaid] money." She wanted to know why there had been no referrals made. Mr. Stokesberry told Ms. Proctor, in response to her inquiry, that the Alliance was not involved in the referral process and that any questions she had regarding lack of referrals should be addressed to United and Miami-Dade Elderly Services. Mr. Stokesberry, during the meeting, "made it very clear" that Ms. Proctor "could not bill [Medicaid] if she did not have referrals" from United or Miami-Dade Elderly Services, an advisement Ms. Levin echoed. Ms. Levin added that Ms. Proctor could not receive any referrals if she did not have a referral agreement with one of these case management agencies. What Ms. Proctor had told Mr. Stokesberry at the meeting about her situation was only partially true. Petitioner indeed had not received any referrals from United or Miami-Dade Elderly Services; however, notwithstanding the absence of such referrals, Petitioner had been submitting Medicaid claims and receiving "[Medicaid] money." Petitioner continued to bill Medicaid and be reimbursed following the meeting. Petitioner received payments totaling $673,754.50 for Medicaid claims it had submitted for ADA "waiver" services assertedly rendered from June 12, 1997, to August 28, 1998 (Paid Claims). These Paid Claims were processed by Unisys. At the request of DOEA, an Alliance staff member reviewed one of these Paid Claims (that was randomly selected) and determined that it was not "an appropriate billing." A more extensive post-payment review of the Paid Claims was then conducted. By letter dated September 11, 1998, DOEA's Inspector General, Lisa Milton, advised the Chief of AHCA's Bureau of Medicaid Program Integrity, Edward Turner, of the results of this post-payment review. By memorandum dated September 16, 1998, Mr. Turner requested the Chief of AHCA's Bureau of Medicaid Contract Management to "have Unisys pend [Petitioner's] claims for prepayment review." By letter dated September 17, 1998, AHCA's Bureau of Medicaid Contract Management asked Unisys, until further notice, to "pend for prepayment review any claim" Petitioner submitted, a request with which Unisys complied. On September 22, 1998, Costas Miskis, Esquire, an attorney with AHCA, sent the following letter to Ms. Proctor: The Florida Department of Elder Affairs has advised the Office of Medicaid Program Integrity ("MPI") that certain claims totaling $673,754.50 were improperly submitted under your Medicaid Provider number 6754961-00 for the time period beginning January 1, 1998, though and including September 16, 1998. The information received indicates that the services were not provided pursuant to a written plan of care developed by a case management agency which meets certain standards, and the recipients were not pre- screened as meeting disability criteria as required by the Social Security Act, Federal Regulations, and Aged/Disabled Medicaid Waiver Program. Given this information, the agency is compelled to seek a resolution of this matter. In an effort to expedite and simplify this process, we will extend to you the opportunity to settle this matter. Any settlement at this juncture will save both you and this office the burden and expense of litigation, as well as minimize the public airing with regard to any improper claims. The final terms of any settlement will be incorporated into a written agreement, and will effectively bring this matter to a close. Please be advised however, that in resolving situations involving false Medicaid claims, this agency may seek interest, investigative costs, or penalties as part of any negotiated settlement. Finally, please be advised that should we be unable to settle this matter, this office will consider proceeding under the False Claims Act (section 68.081, Florida Statutes, et seq.). Successful prosecution of such a case for any false claims submitted on or after July 1, 1994, would result in full restitution of the moneys in question plus the award of treble damages (triple the amount paid) together with a mandatory minimum $5,000 penalty per false claim- the maximum penalty per false claim is $10,000. If an agreement is reached between the appropriate parties, however, this agency would forego filing an action. Should you wish to discuss settlement of this matter, please call me at . . . by October 4, 1998. If I do not hear from you, I will assume that you are not interested in discussing this matter and will pursue any and all remedies available. A settlement was not reached. Petitioner continued to bill Medicaid, but was not reimbursed. Petitioner submitted Medicaid claims totaling $1,135,932.96 for ADA "waiver" services assertedly rendered from June 12, 1998, to February 29, 2000, which have not been paid (Pended Claims). The record evidence is insufficient to establish that any AHCA employee or agent, including Mr. Miskis, ever guaranteed Ms. Proctor that these Pended Claims would be paid. None of the Paid or Pended Claims was for any service for which Petitioner was entitled to be reimbursed by Medicaid, as Ms. Proctor knew or should have known. At all times material to the instant case, each of the individuals identified as recipients in the Paid and Pended Claims was Medicaid-eligible, but none of them had undergone a CARES assessment and been deemed eligible for ADA "waiver" services5; none of them had a plan of care; and none of them had been referred to Petitioner by United or Miami-Dade Elderly Services to receive the services billed for. Indeed, Petitioner did not even have a referral agreement with either of these case management agencies. Furthermore, a substantial number of the Paid and Pending Claims were for ADA "waiver" services other than adult day health care (including case management, counseling, respite care, and risk reduction) that Petitioner, as an adult day health care provider, was not authorized to bill for. Ms. Proctor used the FaxBack service offered by Unisys before billing Medicaid. The record evidence is insufficient to establish that Unisys, in responding to Ms. Proctor's inquiries via the FaxBack service, ever advised her that any of the individuals she inquired about were eligible to receive ADA "waiver" services from Petitioner.6 In any event, even if Unisys had provided Ms. Proctor with such an advisement, given what she had been told during her dealings with Alliance staff concerning the requirements of the ADA "waiver" program, it would have been unreasonable for her to have blindly relied on this information without making any further inquiry. On July 18, 2001, AHCA issued its Final Agency Audit Report,7 finding that the monies totaling $673,754.50 Petitioner received for the Paid Claims constituted overpayments Petitioner had to return to AHCA and that the Pended Claims were for services "not covered by Medicaid" and thus should not be paid.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that AHCA enter a final order finding that the monies, totaling $673,754.50, Petitioner received for the Paid Claims constituted overpayments that Petitioner must return to AHCA and that the Pended Claims were for services "not covered by Medicaid" and should therefore be denied. DONE AND ENTERED this 22nd day of July, 2004, in Tallahassee, Leon County, Florida. STUART M. LERNER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 22nd day of July, 2004.
The Issue Whether the Respondent committed the violations alleged in the Administrative Complaint dated March 27, 2009, and, if so, the penalty that should be imposed.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made:1 At the times material to this proceeding, the Department was the state agency responsible for the investigation and prosecution of complaints involving physicians licensed to practice medicine in Florida. See § 456.072, Fla. Stat. (2004-2005). At the times material to this proceeding, the Board of Medicine ("Board") was the entity responsible for regulating the practice of medicine and for imposing penalties on physicians found to have violated the provisions of Section 458.331(1), Florida Statutes (2004-2005). See § 458.331(2), Fla. Stat. (2004-2005). At the times material to this proceeding, Dr. Genao was a physician licensed to practice medicine in Florida, having been issued license number ME 58604. Dr. Genao practiced in the field of pediatric medicine, and he was board-certified in pediatrics. His practice was located at 13059 Southwest 112th Street, Miami, Florida. In or about 2005, Dr. Genao became aware that so-called "infusion centers" were opening in Miami-Dade and Broward Counties, Florida, to treat patients who had been diagnosed with HIV/AIDS and who required injections and infusion treatments for HIV/AIDS-related conditions. Dr. Genao visited one such center and observed a physician, a Dr. Fauler, as he provided infusion treatments to HIV/AIDS patients. Dr. Genao believed that Dr. Fauler's treatment of the HIV/AIDS patients was appropriate. Dr. Genao had training in intravenous treatments, and, after observing Dr. Fauler and working for a time under Dr. Fauler's supervision, Dr. Genao considered himself ready to begin treating HIV/AIDS patients in an "infusion center" that he intended to operate out of the office housing his pediatric practice. By his own admission, Dr. Genao had no formal training or experience treating patients with HIV/AIDS. Dr. Genao's first patient was G.M., whom Dr. Genao treated for HIV/AIDS-related conditions between May 25, 2005, and June 20, 2005. At the end of July, Dr. Genao was approached by two men who offered to bring him HIV/AIDS patients for injections and infusion treatment for HIV/AIDS-related conditions. Dr. Genao felt he was competent to treat HIV/AIDS patients with infusion therapy, and he signed a contract with the two men in which he agreed to see HIV/AIDS patients in exchange for a salary. Dr. Genao assumed that the patients he would see also had primary care physicians who were treating the patients for HIV/AIDS. In mid-August, 2005, Dr. Genao began to see HIV/AIDS patients regularly at his office in the mornings, before his pediatric patients arrived. Between August 15, 2005, and October 14, 2005, Dr. Genao treated 11 HIV/AIDS patients. Dr. Genao diagnosed these patients as suffering from conditions associated with HIV/AIDS, such as neuropathy; neutropenia; thrombocytopenia; and diarrhea. Dr. Genao ordered various treatments for these patients, including intramuscular injections of drugs such as Sandostatin and infusion of such drugs as Rituxan, Neupogen, and Neumega. Shortly after he began treating these HIV/AIDS patients, Dr. Genao began to question the appropriateness of the modes of treatment he had observed at Dr. Fauler's infusion center and to feel uncomfortable about treating the HIV/AIDS patients. He sought training at Jackson Memorial Hospital in Miami, Florida, and attended training sessions during which he observed a physician who specialized in the treatment of HIV/AIDS patients and who ran the HIV/AIDS clinic at Jackson Memorial Hospital. Dr. Genao attended these training sessions three days per week for two weeks. Dr. Genao realized that the treatment given by the physician at Jackson Memorial Hospital was completely different from the treatment he was providing the HIV/AIDS patients in his office. Dr. Genao also realized that the patients he was treating for HIV/AIDS-related conditions were not being treated for the underlying HIV/AIDS by primary care doctors. Dr. Genao decided to stop treating the HIV/AIDS patients that he was seeing pursuant to the contract with the two men, who were not physicians. When he told the men that he wanted to renege on the agreement, they told Dr. Genao that he had to continue treating the HIV/AIDS patients until they could find another physician to provide them treatment. Dr. Genao felt threatened by the men, and he continued to treat the patients until on or about October 14, 2005. During the time that Dr. Genao treated the HIV/AIDS patients brought to him by the two men, the men prepared all of the bills to be submitted to Medicare and/or Medicaid. Dr. Genao signed each bill in the large stacks of bills presented to him without reviewing any of them. The Department's expert testified at length about the treatment that Dr. Genao provided to the 12 HIV/AIDS patients he had treated, and the expert enumerated the ways in which Dr. Genao had violated the standard of care in their diagnosis and treatment. In his responses to the Department's request for admissions, Dr. Genao admitted that he failed to diagnose and treat these patients properly.2 Furthermore, in his testimony at the final hearing, Dr. Genao admitted that his treatment of these patients fell below the standard of care, and he agreed with the Department's expert that he misused some of the drugs he prescribed for the patients, failed to follow through with necessary treatment for these patients, and neglected their care.3 Based on the patients' medical records, on testimony of the Department's expert, and on Dr. Genao's admissions and testimony, the ways in which Dr. Genao failed to meet the applicable standard of care in treating the 12 HIV/AIDS patients may be grouped into categories and summarized as follows: Dr. Genao treated patients S.B. and J.S. for diarrhea with intramuscular injections of Sandostatin; Sandostatin is a medication that is not appropriate for the treatment diarrhea but is used to treat the very rare disease, acromegaly. Dr. Genao treated patients S.B. and G.M. for thrombocytopenia with multiple intravenous infusions of Rituxan, a drug that is not appropriate for the treatment of thrombocytopenia, which is a bleeding disorder caused by an abnormally low level of platelets. Rituxan is used to treat lymphoma and rheumatoid arthritis, and it is a very expensive and dangerous drug that can sometimes cause death. Dr. Genao failed to follow-up with diagnoses and treatment for seriously abnormal values that showed up in the results of blood work ordered by Dr. Genao for patients S.B., S.E., L.G., G.M., J.S., and J.T. Dr. Genao failed to refer patients S.B., S.E., M.E., L.G., J.T., E.T., and J.T. 2 to specialists for evaluation when such evaluation was indicted by the patients' complaints and symptoms. Dr. Genao failed to notify patient M.E., whom Dr. Genao saw only once, of abnormal blood test results that should have been evaluated and treated. Dr. Genao failed to revise his treatment of patients S.E., L.G., J.T., and E.T. when it became clear that there had been no improvement in the conditions of the patients after Dr. Genao had treated them for a month or more. Dr. Genao administered Neupogen to patients E.T. and J.T. 2 when treatment with this drug, which is used primarily to treat patients with a critically low white blood cell count resulting from chemotherapy, was not indicated by the results of blood tests. Dr. Genao failed to diagnose accurately and/or timely conditions that were indicated by the complaints, symptoms, and results of blood tests for patients S.B., S.E., M.E., L.G., G.M. J.S., J.T., E.T. and J.T. 2. By his own admission, Dr. Genao failed to keep appropriate medical records of the treatment of these 12 patients. Dr. Genao's medical records were often illegible4; there were no medical records for patients M.C. and R.M., just billing records; and the medical records were incomplete and generally failed to justify the course of treatment for patients S.B., S.E., M.E., L.G., G.M., J.S., M.S., J.T., E.T., and J.T. 2. Summary and findings of ultimate fact The evidence presented by the Department, together with the admissions and testimony of Dr. Genao, is sufficient to support a finding that Dr. Genao committed medical malpractice because he did not provide to the 12 HIV/AIDS patients he treated the level of treatment, skill, and care that would be found acceptable by a reasonable prudent similar physician under similar circumstances. Even though the evidence presented by the Department, together with the admissions and testimony of Dr. Genao, is sufficient to support a finding that Dr. Genao prescribed and administered Rituxan, Sandostatin, and Neupogen inappropriately and in excessive quantities for some of his HIV/AIDS patients, the evidence is not sufficient to establish that this conduct occurred outside Dr. Genao's professional practice. The evidence presented by the Department, together with the admissions and testimony of Dr. Genao, is sufficient to support a finding that Dr. Genao failed to keep medical records that were legible and complete and that justified the treatment that he provided his HIV/AIDS patients.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Medicine enter a final order finding that Estaban Antonio Genao, M.D., violated Section 458.331(1)(m) and (t), Florida Statutes (2004 and 2005), and revoking the license of Estaban Antonio Genao, M.D., to practice medicine in the State of Florida. DONE AND ENTERED this 30th day of November, 2010, in Tallahassee, Leon County, Florida. S Patricia M. Hart Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of November, 2010.
