The Issue Whether Emergency Rule 10CER89-21 and an amendment of Rule 10C-7.0482, Florida Administrative Code, constitute an invalid exercise of delegated legislative authority?
Findings Of Fact The Parties and The Petitioners' Standing. The Petitioners, Hillhaven, United, Diversicare, HCRA, Americare and Waverly, are providers of long-term care services to elderly and disabled persons including Medicaid recipients. (S.F. 1). Petitioners have standing to raise their respective claims in this matter. (S.F. 38). The Department is an agency of the State of Florida. The Department is responsible for administering the Florida Medicaid program. (S.F. 3). The Federal Medicaid Program. General. Title XIX of the Social Security Act, codified at 42 U.S.C. 1396-1396s, and commonly referred to as the Medicaid Act, is a cooperative federal-state program. Under the Medicaid program, the federal government provides matching funds to states to help them provide their needy residents with necessary medical services. (S.F. 1). State Participation in the Program. State participation in the Medicaid program is not mandatory. A state which opts to participate, however, must submit to the Health Care Financing Administration (hereinafter referred to as "HCFA") of the Department of Health and Human Services (hereinafter referred to as "HHS") a "state plan for medical assistance" which meets all relevant federal requirements. 42 U.S.C. 1396a. (S.F. 2). Once HCFA approves a state's plan, that state is entitled to federal financial participation (hereinafter referred to as "FFP"), which means that HHS pays the state a certain percentage of amounts expended under the plan. 42 U.S.C. 1396b. The state must then administer the program in accordance with federal law, regulations and the approved state plan. 42 U.S.C. 1396c. (S.F. 2). Each state that participates in the Medicaid program must designate an agency to implement the Medicaid program in that state. 42 U.S.C. 1396(a)(5) and 42 C.F.R. 431.10. The state agency designated is not allowed to delegate its authority to administer or supervise the state plan. 42 C.F.R. 431.10(e). Amendment of a State Medicaid Plan. The mechanism for amending a state's Medicaid plan is set forth in 42 C.F.R. 447.256(c) and 430.20. (S.F. 10). In pertinent part, 42 C.F.R. 447.256(c), provides: A state plan amendment that is approved will become effective no earlier than the first day of the calendar quarter in which an approvable amendment is submitted in accordance with [42 C.F.R.] 430.20 and 447.253. In pertinent part, 42 C.F.R. 20(b)(2), provides that "[f]or a plan amendment that changes the State's payment method and standards, the [effective date] rules of [42 C.F.R.] 447.256 apply." The requirements for public notice of a proposed amendment to a state's Medicaid plan are set forth in 42 C.F.R. 447.205. (S.F. 11). The notice, pursuant to 42 C.F.R. 447.205(c), must include: Describe the proposed change in methods and standards; Give an estimate of any expected increase or decrease in annual aggregate expenditures; Explain why the agency is changing its methods and standards; Identify a local agency in each county (such as the social services agency or health department) where copies of the proposed changes are available for public review; Give an address where written comments may be sent and reviewed by the public; and If there are public hearings, give the location, date and time for hearings or tell how this information may be obtained. One of the requirements for federal approval of an amendment to a state plan is the requirement that the state provide payment rates in compliance with the "Boren Amendment", 42 U.S.C. 1396a(a)(13), and make findings and submit assurances to HCFA that: The Medicaid agency pays for . . . long-term care facility services through the use of rates that are reasonable and adequate to meet the costs that must be incurred by efficiently and economically operated providers to provide services in conformity with applicable State and Federal laws, regulations, and quality and safety standards. 42 C.F.R. 447.253(b)(1). The Medicaid Program in Florida. Florida's Participation. Florida participates in the Medicaid program pursuant to Section 409.266, Florida Statutes, and the Florida Title XIX Long-Term Care Reimbursement Plan (hereinafter referred to as the "Florida Medicaid Plan"). (S.F. 3). The Department is the agency responsible for administering the Florida Medicaid Plan. The Florida Medicaid Plan authorizes payments for nursing home services provided to eligible individuals in accordance with Medicaid regulations. (S.F. 3). Adoption and Approval of a Medicaid Plan. The Florida Medicaid Plan as revised January 1, 1988, was submitted by the Department to HCFA in accordance with 42 U.S.C. 1396A. The Department provided assurances to HCFA that Medicaid reimbursement rates under the January 1, 1988 Florida Medicaid Plan were reasonable and adequate to meet the costs which must be incurred by efficiently and economically operated facilities. See 42 U.S.C. 1396(a)(13)(A). (S.F. 4). HCFA approved the January 1, 1988, Florida Medicaid Plan effective January 1, 1988. (S.F. 4). The Florida Medicaid Plan. Under the January 1, 1988, Florida Medicaid Plan, long-term care providers such as the Petitioners are reimbursed under a prospective reimbursement methodology. Rates are set in advance of the rate semester based on historical cost data trended forward for inflation with no retroactive adjustment to account for actual costs for a cost reporting period (as opposed to actual reimbursement for the same period). (S.F. 5). Florida long-term care providers are divided into four classes based on geographic location and size. (S.F. 5). Each provider's rate consists of four components: (1) the property cost component; (2) the operating cost component; (3) the patient care cost component; and (4) a return on equity or use allowance. (S.F. 5). Reimbursement ceilings for patient care and operating cost components are established for each of the four classes. Ceilings are effective semiannually on January 1 and July 1. A statewide ceiling for the property cost component applies to providers who are reimbursed on the basis of depreciation and interest. Section 4B of the January 1, 1988 Florida Medicaid Plan. (S.F. 6). Providers that do not receive depreciation and interest for their property costs are reimbursed under the Fair Rental Value Systems (hereinafter referred to as "FRVS"). Under FRVS, reimbursement is based on the acquisition costs of a capital asset including capital additions and improvements subsequent to acquisition. These acquisition costs are indexed forward to October 1, 1985 by a portion of the rate of increase in the Dodge Construction Index. Id. Subsection V.E.I.a. (S.F. 7). The January 1, 1988 Florida Medicaid Plan also requires that the FRVS component of a provider's rate be adjusted semiannually using the change in the Dodge Index for the most recent six month period published prior to the rate semester. Id. Subsection V.E.I.a. The January 1, 1988 Florida Medicaid Plan requires semiannual inflationary adjustments, to become effective on July 1 and January 1 of each year. (S.F. 8). The January 1, 1988 Florida Medicaid Plan established Petitioners' Medicaid rates during the period January 1, 1988 through December 31, 1989. (S.F. 9). The Legislature's Appropriation of Funds for Medicaid. The appropriation for Florida's fiscal year 1989-1990 from the Florida Legislature included funds to reimburse Medicaid long-term care facility providers for the fiscal year July 1, 1989 through June 30, 1990 in accordance with the January 1, 1988 Florida Medicaid Plan. (S.F. 12). Florida's Budget Cuts and The Department's Response. During the fiscal year ending June 30, 1990, Florida experienced a shortfall in general revenue collections, and then-Governor Bob Martinez certified that a deficit would occur in the Florida state budget. (S.F. 13). In order to deal with the budget deficit, the Department was asked to provide cost containment alternatives to the Administration Commission (consisting of the Governor and the cabinet) which the Department did. (S.F. 13). Among the alternatives recommended by the Department was an amendment to the current Florida Medicaid Plan which would maintain Medicaid reimbursement rates for long-term care facilities at their December 31, 1989 level. This alternative was advocated by the Department as the most appropriate and fair of all the alternatives presented by the Department. (S.F. 13). In effect, the Department suggested that the Florida Medicaid Plan be amended to eliminate those provisions of the Florida Medicaid Plan providing for semiannual adjustments to the Medicaid reimbursement rate. Exhibit 2 is a true, correct and complete copy of an Impact Statement prepared by the Department and submitted to the Administration Commission concerning the proposed rate freeze that was accepted by the Administration Commission. This document was not submitted to HCFA. (S.F. 13). In the Impact Statement provided to the Administration Commission on November 21, 1989, the Department concluded that Florida nursing homes would receive 4% less than their anticipated costs due to the proposed freeze: Nursing Home Care ($13,131,931 GR) - This proposal will not allow nursing home per diem rates to increase based on their projected cost increases. The Medicaid Program will be reimbursing nursing homes 4.0% less than their anticipated costs. This price level reduction will impact on 489 participating nursing homes. There is no basis upon which to project the impact this will have on our clients [sic] ability to access those services of the quality of care received. This was the only analysis conducted by the Department prior to January 1, 1990, of Florida nursing home anticipated costs compared to the rates nursing homes would receive under the proposed rate freeze. On November 21, 1989, the Administration Commission, under the procedure outlined in Section 216.221, Florida Statutes, accepted the Department's proposal effective December 1, 1989 and reduced the Department's budget accordingly. (S.F. 13). The budget reductions ordered by the Administration Commission were taken from the Department's general revenue appropriation effective January 1, 1990, through mandatory reserves, or a holdback, of appropriations. The impact on the Department was that it had less authority to spend funds. The rate freeze approved by the Administration Commission allowed changes in rates due to licensure rating changes pursuant to Section V.D. of the January 1, 1988 Florida Medicaid Plan. (S.F. 13). A letter from the Department to nursing home administrators in Florida, including the Petitioners, dated January 29, 1990, was sent to Florida facilities affected by the rate freeze. The Department stated in the January 29, 1990, letter (exhibit 5), that the rate freeze would remain in effect until monies were appropriated by the Florida Legislature to recalculate new rates and ceilings. (S.F. 17). Promulgation of Rules Implementing the Rate Freeze. In order to effectuate the freeze, the Department caused to be published in the Florida Administrative Weekly on December 22, 1989, notice of Emergency Rule 10CER89-21 (10C-7.0482) (hereinafter referred to as the "Emergency Rule"). See exhibit 3. (S.F. 14). The Emergency Rule amended the Department's rules by providing that Florida Medicaid reimbursement would be in accordance with the January 1, 1988 Florida Medicaid Plan as revised January 1, 1990. See exhibit 4. (S.F. 14). The January 1, 1990 modifications to the January 1, 1988 Florida Medicaid Plan were attached to the notice of the Emergency Rule and were incorporated therein. (S.F. 14). The effect of the Emergency Rule was to eliminate the provisions of the January 1, 1988 Florida Medicaid Plan providing for recalculation of reimbursement rates, which recalculation would have included an inflationary adjustment, for the Petitioners' per diem Medicaid rates for the period beginning January 1, 1990. The Emergency Rule had the effect of maintaining the Petitioners' per diem Medicaid rates at the level in effect on December 31, 1989, excluding changes based on licensure rating reclassifications. The Emergency Rule did not limit the rate freeze to the period prior to June 30, 1990, and did not specify the date or approximate date on which the rate freeze would end. (S.F. 14). Emergency rules, however, are only effective for ninety days in Florida. Although the public notice of the Emergency Rule did not specify the anticipated increase or decrease in annual expenditures, notice of the general impact of the Emergency Rule was provided. On February 2, 1990, the Department caused to be published in the Florida Administrative Weekly notice of an amendment to Rule 10C-7.0482, Florida Administrative Code (hereinafter referred to as the "Permanent Rule"). See exhibit 6. (S.F. 15). The Permanent Rule eliminated the recalculation of reimbursement rates, which recalculation would have included an inflationary adjustment for Petitioners' per diem Medicaid rates for the period beginning January 1, 1990. The Permanent Rule maintained the Petitioners' per diem Medicaid rates at the level in effect on December 31, 1989, excluding changes based on licensure rating reclassifications. (S.F. 15). The Permanent Rule did not limit the rate freeze to the period prior to June 30, 1990 or specify the date or approximate date on which the rate freeze would end. The "purpose and effect" section of the Permanent Rule stated that the rate freeze would be in effect until sufficient funds were appropriated by the Legislature to recalculate rates and ceilings for Medicaid providers. (S.F. 15). By letter date March 15, 1990 (exhibit 8), a "Notice of Change" was filed by the Department with the Joint Administrative Procedures Committee. The Notice of Change modified the effective date of the Permanent Rule from March 22, 1990 to March 26, 1990. The Notice of Change was published in the Florida Administrative Weekly on March 23, 1990. Exhibit 27. (S.F. 19). No other public notices, or emergency or permanent rules, were published by the Department subsequent to February 2, 1990, which would have affected the Petitioners' Medicaid rates for the period January 1, 1990 through June 30, 1990. (S.F. 16). There are no documents which indicate that the Department enacted the Emergency Rule or the Permanent Rule for reasons other than those stated in the public notices for the Emergency Rule and the Permanent Rule and the January 29, 1990, letter. (S.F. 18). The Department enacted the Emergency and Permanent Rules solely due to the budgetary cuts ordered by the Administration Commission. The preamble to the Emergency Rule stated "[b]ased on a recent decision made by the Governor and Florida Cabinet, Medicaid rates were frozen at the December 31, 1989 levels for all providers of these institutions." The preamble to the Emergency Rule also stated that "a shortfall in general revenue requires the state to reduce or eliminate payment for needed services to medicaid recipients." Neither the preamble to the Emergency Rule nor the Permanent Rule indicated that Florida nursing homes had received excess reimbursement in relation to their costs under the 1988 Medicaid Plan. There was, however, no Florida law which required any other reason for the Emergency Rule or the Permanent Rule be provided by the Department. In a previous filing in this matter, the Department stated: "[i]n response to a shortfall in general revenue collections. . . , the Administration Commission (composed of the Governor and the cabinet) ordered the Department to "freeze" rates at the December 31, 1989 level. The amendment was made effective by [the Emergency Rule and the Permanent Rule]." See also Florida Nursing Home Association v. Department of Health and Rehabilitative Services, 12 FALR at 667 ("The Emergency Rule simply carries out the reductions ordered by the Administration Commission on November 21, 1989"). On January 29, 1990, Gary J. Clarke, Assistant Secretary for Medicaid of the Department, wrote to Nursing Home Administrators, including Petitioners, and stated that the rate freeze was enacted due to a decision made by the Administration Commission: Due to a projected general revenue deficit of $280 million for the State of Florida for fiscal year ending June 30, 1990, the Administration Commission met on November 21, 1989, to determine the appropriate budget reductions for all state programs. In order to reduce the Medicaid budget for its portion of the [DHRS] required reductions, yet avoid gross disruption of services, the Commission required that Medicaid reimbursement rates and ceilings for nursing home providers be frozen at their December 31, 1989 levels, beginning with the new rate Semester on January 1, 1990. . . There are no documents which include a representation contrary to the above quoted portion of the January 29, 1990 letter that the Department enacted the Emergency Rule or Permanent Rule for reasons other than the budgetary cuts ordered by the Administration Commission. The January 29, 1990 letter from the Department also indicated that the length of the rate freeze was indefinite: This policy shall remain in effect until such time that monies are appropriated by the Florida legislature to recalculate new rates and ceilings. Impact of the Emergency Rule and Permanent Rule on the Petitioners. The Petitioners received an inflationary adjustment in their Medicaid per diem rates on July 1, 1989 in accordance with the terms of the January 1, 1988 Florida Medicaid Plan. The Petitioners did not receive an inflationary adjustment in their per diem rates which would have been due on January 1, 1990 under the January 1, 1988 Florida Medicaid Plan for the period January 1, 1990 through June 30, 1990. Instead, Petitioners' rates calculated effective January 1, 1990 used the same cost reports and inflation adjustment that had already been included in their July 1, 1989 rates. (S.F. 36). The fact that the Petitioners did not receive an inflationary adjustment in their per diem rates for the period January 1, 1990 through June 30, 1990, was because the Emergency Rule and the Permanent Rule eliminated the rate increase provisions of the January 1, 1988 Florida Medicaid Plan. Notification to HCFA of the Rate Freeze. On March 30, 1990, HCFA received a letter dated March 22, 1990, from the Secretary of the Department submitting for consideration "a Title XIX state plan amendment to our state plan." (S.F. 20). The Secretary of the Department stated the following in the letter: This amendment TN 90-8 revises the plan by freezing the reimbursement rates and ceilings of all nursing home providers at the rates of reimbursement for services rendered on December 31, 1989. . . . . The assurances required by 42 CFR 447.253 and proof of public notice are attached. Exhibit 9. Attached to the Secretary's March 22, 1990, letter was a letter dated March 29, 1990, which along with State Plan Amendment Transmittal Number ("TN") 90-08 and proof of public notice, constituted all the documentation submitted by the Department to HCFA prior to July 1, 1990 concerning the rate freeze. (S.F. 20). TN 90-08, as submitted by the Department to HCFA on March 29, 1990, proposed to modify the Florida Medicaid Plan, as the Department had provided for in the Emergency Rule and the Permanent Rule, to eliminate the recalculation of rates, which recalculation would have included an inflationary adjustment for Petitioners' per diem Medicaid rates for the period beginning January 1, 1990. TN 90-08 proposed to maintain the Petitioners' per diem Medicaid rates at the level in effect on December 31, 1989, excluding changes based on licensure rating reclassifications. TN 90-08, as submitted on March 29, 1990, did 12not limit the rate freeze to the period prior to June 30, 1990. (S.F. 21). In the March 29, 1990 letter to HCFA, the Department referenced a telephone survey in which it had compared Florida Medicaid per diem rates to the per diem rates paid to long-term care facilities along the state borders between Florida and Georgia, and Florida and Alabama, under the Georgia and Alabama Medicaid programs. The Department estimated that this telephone survey was performed during the time period December, 1989 through February, 1990. In conducting the Georgia and Alabama telephone survey, the Department did not determine whether Georgia's or Alabama's long-term care facilities per diem rates were reasonable and adequate to cover the costs of efficiently and economically operating Georgia or Alabama facilities, and the Department did not determine whether Georgia or Alabama Medicaid programs covered the same or similar costs as the Florida Medicaid program. A copy of the survey materials was submitted as exhibit 10. Exhibit 10 was not provided to HCFA. (S.F. 22). In the March 29, 1990 letter, the Department referenced an analysis in which it stated that it had compared the increase in an inflationary index from 1989 to 1990 to the increase in the Medicaid rates paid to Florida long-term care facilities from 1989 to 1990. This analysis was performed during the period January, February, or March 1990. These materials were not submitted to HCFA. (S.F.23). The Georgia and Alabama telephone survey, the inflation analysis, and that portion of the data in Exhibit 15 generated prior to March 29, 1990 by the Department relating to Florida long-term care facility historical costs and prospective per diem rates were the only reports, surveys, analyses or studies performed by the Department (as of March 29, 1990) to support its assurances to HCFA that its rates for the period beginning January 1, 1990 were reasonable and adequate to cover the costs of efficiently and economically operated facilities in order to provide care and services in conformity with applicable state and federal laws, regulations, and quality and safety standards. (S.F.23). TN 90-08 was submitted to HCFA during the calendar quarter to which the Florida Medicaid Plan amendment was to be effective. TN 90-08 was reviewed by HCFA and a memorandum dated April 30, 1990, was written and circulated within HCFA concerning the proposed amendment. The memorandum indicates what the proposed amendment proposes, states that the review was conducted in accordance with Federal requirements and lists the assurances the State had given. The memorandum concludes, however, that "[a]fter review of the State's assurances and related information, HCFA does not yet have a reasonable basis upon which to accept the State's assurance that the proposed rates meet the 'reasonable and adequate' statutory standard of section 1902(a)(13)(A) of the Social Security Act " By letter dated May 9, 1990, HCFA notified the Department that: . . . we find that we cannot approve [the Plan amendment] as submitted. We are exercising our rights under section 1915(f) of the Social Security Act to request additional information and clarification as discussed below: . . . . Although HCFA did not deny or reject the Florida Medicaid Plan amendment submitted by the Department in the May 9, 1990, letter, HCFA did indicate that it could not approve the proposed amendment as submitted. It was recognized in the May 9, 1990, HCFA letter, as it was in the April 30, 1990, memorandum that a state may use budgetary considerations as one factor in establishing the rates to be paid providers as long as the rates are reasonable and adequate. It was also recognized in the May 9, 1990, HCFA letter that "the fact that rates in surrounding States are comparable to Florida's rates provides no justification whatsoever that its rates are reasonable and adequate. Rather, the HRS must compare its proposed rates with the costs that Florida facilities must incur in providing care and services." In the May 9, 1990, HCFA letter it is noted that the Department noted in its March 29, 1990, letter that rates are to be recalculated for the period beginning July 1, 1990, but that inconsistent language is included elsewhere in its proposal. Therefore, HCFA recommended that the Plan amendment be revised to limit the freeze to the six month period beginning January 1, 1990. The May 9, 1990, HCFA letter indicates that processing of the amendment would cease until the additional information and clarification were provided to HCFA. It is readily apparent from HCFA's April 30, 1990, memorandum and its letter of May 9, 1990, that HCFA was well aware of the requirements for amending a state Medicaid plan and the requirements that states must meet in setting Medicaid rates. The April 30, 1990, memorandum and the May 9, 1990, letter indicate that the original proposal submitted by the Department did not meet those requirements without further information being provided. HCFA did not, however, reject the Department's proposal or make any determination as to whether the proposed freeze was appropriate. HCFA merely indicated that more information was necessary and gave the Department an opportunity to provide it. On May 20, 1991, the Department submitted a letter to HCFA in response to the May 9, 1990, HCFA letter limiting the rate freeze to the six month period prior to July 1, 1990, and submitted a revised TN 90-08 to HCFA which included this change. Exhibit 18. (S.F. 30). In the May 20, 1991, Department letter the Department also referenced a second inflationary analysis. This inflationary analysis was performed by the Department in March or April, 1991. The inflationary analysis along with data generated by the Department relating to Florida long-term care facility historical costs and prospective per diem rates (exhibit 15) were the only reports, surveys, analyses or studies performed by the Department to support its May 20, 1991 assurances to HCFA that its rates for the period beginning January 1, 1990 were reasonable and adequate to cover the costs of efficiently and economically operated facilities in order to provide care and services in conformity with applicable State and Federal laws, regulations, and quality and safety standards. Exhibit 19 is a true, correct and complete copy of the written materials prepared by the Department in performing the inflationary analysis referenced in the May 20, 1991 letter. These documents were not submitted to HCFA. (S.F. 31). HCFA'S Approval of the Plan Amendment. By letter dated July 2, 1991, HCFA notified the Department that the Florida Medicaid Plan amendment TN 90-08 was approved with an effective date of March 26, 1990. By letter dated September 16, 1991, the Department advised HCFA that, as stated in the March 29, 1990, letter, the originally requested effective date of March 26, 1990, was an inadvertent error. It was pointed out that the correct effective date was January 1, 1990. By letter dated October 3, 1991, HCFA notified the Department that HCFA had approved the amendment to the Florida Medicaid Plan effective January 1, 1990. Elimination of the Rate Freeze. Effective July 1, 1990 the Florida Medicaid Plan was amended to remove the language of the Emergency Rule and Permanent Rule added effective January 1, 1990 which froze rates to their December 31, 1989 level. (S.F. 37). On August 7, 1991, HCFA approved the subsequent amendment, TN 90-13, with an effective date of July 1, 1990. This subsequent Florida Medicaid Plan amendment calculated the July 1, 1990 long-term care facility Medicaid reimbursement rates using the same inflation adjustment which would have been used on July 1, 1990 had the January 1, 1990 amendment never been implemented. No reimbursement relative to the January 1, 1990 amendment, however, was made retroactively to long-term care facilities for the period January 1, 1990 through June 30, 1990. (S.F. 37).
The Issue Whether Respondent engaged in an unlawful employment practice with regard to Petitioner because of Petitioner's asserted disability.
Findings Of Fact At the time of the hearing, Ms. Hays was 36 years of age and was unemployed. During times pertinent she lived in Chattahoochee, Florida. The Hospital in Chattahoochee, Florida, is a large residential mental health facility operated under the auspices of the Department. The Hospital also administratively supports employees of the Agency for Persons with Disabilities. The Hospital is an employer as that term is defined in Subsection 760.02(7), and thus subject to the Florida Civil Rights Act of 1992. Ms. Hays, prior to her employment with the Hospital, worked for various employers in clerical and secretarial positions. She began working at the Hospital in 2000. She was employed in a temporary position in Unit 25 as a Clerk Typist Specialist. After two weeks on the job, she was moved to Unit 14 and worked as a Human Service Worker I. This was also a temporary position. In this latter position, she took care of elderly residents. She bathed them, fed them, and otherwise helped them with their daily needs. She also escorted them to off-campus appointments. She received a "Review and Performance Planning" document signed by her on June 19, 2000, which indicated that she was performing in a satisfactory manner. She was hired in a full-time position as a Human Service Worker I in August 2000 in Unit 31/32. In this position her duties included assisting nurses in the medical unit of the Hospital. A "Review and Performance Planning" document signed by Ms. Hays on January 30, 2001, stated that she achieved standards and included some complimentary remarks. In July 2001, she was moved to Unit 29 as a Human Service Worker I. Unit 29 is also known as the Mentally Retarded Defendant Program (MRDP) or MRDP 29. She received a "Review and Performance Planning" document that she signed on March 29, 2002. She received an overall evaluation of "3.81." A performance rating of "4" means that she consistently met and often exceeded expectations. A "5" is the highest rating one can obtain at the Hospital. Her next rating for the period March 2002 until July 2002, resulted in a grade of "4." During the period July 20, 2002, until March 1, 2003, she did not receive a rating because she was not working at the Hospital during the evaluation period. Nevertheless, Annette Bates, Ms. Hays' supervisor, noted that she was a good worker and an asset to MRDP 29. Ms. Hays was injured on November 27, 2001, while exiting the "big blue bus." She slipped on wet steps, and her lower back and neck impacted the steps. A physician, Dr. K. W. Richardson of Chattahoochee, reported that the injury sustained was a broken tail bone. He noted this in a "First Report of Injury or Illness" dated November 28, 2001. Ultimately the diagnosis was changed to two bulging disks. Pain medication was prescribed, but she never required surgery. Wages paid to her, by the Hospital, $751.63 bi-weekly, terminated on December 4, 2001. Subsequently, she was paid workers' compensation benefits. She was informed she could work, but could not lift more than ten pounds and could not have contact with patients. She was authorized to work only at a desk job. Ms. Hays returned to work at the Hospital on January 18, 2002. She was placed on light duty and assigned to the Medical Records Section at MRDP. She filed documents and did other tasks as assigned. Her supervisor was a Ms. Lawrence. On July 18, 2002, her light-duty status expired and because the Hospital could not accommodate her restrictions, she was sent home and provided workers' compensation benefits. She continued to receive workers' compensation benefits until December 2004, when she reached maximum medical improvement. In December 2004, she was contacted by Tracy Wallace and as a result, Ms. Hays met with Margaret Forehand. Ms. Forehand, at that time, was the Hospital's Workers' Compensation Coordinator. She told Ms. Hays that a position was available in MRDP, Unit 29, and invited her to apply for it. Ms. Hays completed a State of Florida Employment Application. She was thereafter employed as a "clerk typist specialist - F/C" at a salary rate of $754.24, which was, on a bi-weekly basis, $39.70 less than she was receiving before her injury. (The designation F/C means forensic corrections.) Ms. Hays' Letter of Acceptance, dated December 7, 2004, and accepted by Ms. Hays on December 7, 2004, informed her that her position was probationary for 12 months. The letter was written on Department stationery, but was signed by David English, Program Operations Administrator, who worked for the Agency for People with Disabilities. He has the ultimate hiring authority for the employees of MRDP. Although termed a "demotion," the lower pay was actually the result of Hospital policy that was applied to all employees who returned from an absence subsequent to being placed on workers' compensation. This job was not preceded by an interview. The person who became her supervisor, Shellie Owens, was not involved in Ms. Hays' hiring process. Ms. Hays' ultimate employer was the Department. Ms. Hays' duties as a "clerk typist specialist- F/C" included filing, typing, and answering and referring calls. She filed ward charts, "thinned charts," and ensured that ward charts and central files were maintained in accordance with Hospital policies, among other tasks. Her duties were set forth in a "Career Service System Position Description." Her section was denoted "MRDP." She was physically able to perform these duties without an accommodation. Her daily work was not in the least affected by any injury or disability. The evidence indicates that both Ms. Hays and Ms. Owens' ultimate employer was the Agency for Persons with Disabilities. Ms. Owens was aware that Ms. Hays had been on workers' compensation for a time. Ms. Owens knew that Ms. Hays could not lift more than ten pounds and was aware that the job did not require lifting more than ten pounds. No evidence was adduced indicating that Ms. Owens perceived Ms. Hays as disabled. Because entries are frequently entered in patients' ward charts, they would grow quite large if not managed. It is necessary for some of the information to permanently remain in ward charts, but a substantial portion may be stored elsewhere. The portions of the charts that are not required to remain in the ward are permanently stored in the Medical Records Office. The process of removing designated matter from the ward charts is called "thinning." Thinning was an important part of Ms. Hays' job. She had to "thin" in accordance with a schedule. Some documents would be left in ward charts for three months, some would be kept if they were only the most recent of a type, and some were kept as long as needed. Some were permanent and, therefore, never removed. It was important also, as part of the process, that Ms. Hays ensure that documents in ward charts were arranged in the proper order. For the rating period December 7, 2004, until March 1, 2005, Ms. Owens evaluated Ms. Hays as a "3." In the written portion of the evaluation, Ms. Owens noted that Ms. Hays had a pleasant personality and was willing to assist others. Ms. Owens' job title is Health Information Specialist Supervisor. In addition to Ms. Hays, during times pertinent, Ms. Owens supervised from three to four other people. On April 19, 2005, approximately six weeks after receiving her evaluation, Ms. Hays was counseled by Ms. Owens. Ms. Owens told her she needed to improve in some areas and that her desk was not tidy. She provided Ms. Hays with a schedule of daily assignments designed to help Ms. Hays improve. Ms. Owens memorialized her discussion with Ms. Hays in a memorandum dated April 19, 2005. In the memorandum, she noted that Ms. Hays had been provided with the MRDP Worksite Orientation Requirement Worksheet on February 25, 2005, and that Ms. Hays understood her duties and acknowledged that by signing it. The memorandum recited that Ms. Hays' work was backed up and that her desk had food and drink on it that could have been spilled on documents which were on the desk. The memorandum also reminded Ms. Hays that she was a probationary employee. Ms. Owens also gave Ms. Hays a "daily schedule" that had an effective date of April 25, 2005. Ms. Hays and Ms. Owens both signed it. The "daily schedule" informed Ms. Hays exactly what she was to do every day of the week. In Ms. Hays' opinion, she followed "every word" of the schedule, and Ms. Owens did not indicate that there was any problem with her work immediately subsequent to the implementation of the "daily schedule." Ms. Owens conducted an audit of the charts maintained by Ms. Hays on May 20, 2005, and reduced the results to writing. The information developed in the audit caused Ms. Owens to conclude that Ms. Hays' work was not improving. Ms. Owens believes that medical records are extremely important and keeping them in good order is a necessity. Her audit found that Ms. Hays was not keeping them in good order. She found her work to be unacceptable. She discussed the matter with Les Smith, the Residential Services Director of Forensic Corrections. He was her immediate supervisor. Ms. Owens then talked to Amy Bryant the Hospital's Employee Relations Counselor with regard to procedures to be followed in terminating an employee. She wanted to comply with procedures. Ultimately a meeting occurred attended by Ms. Owens, Les Smith, David English, and an attorney for the hospital, Amy Tillman. During this process, the decision to offer Ms. Hays the opportunity to resign in lieu of being fired, was finalized. On May 24, 2005, Ms. Hays was ordered by Ms. Owens to report to Mr. Smith's office. Mr. Smith is Ms. Owens' supervisor. When she arrived, she was given the choice of resigning or being fired. If she had not resigned, she would have been fired immediately. Ms. Hays was surprised when she was informed of this choice. She resigned in a handwritten letter dated May 24, 2005. This was her last day of work at the Hospital. As a probationary employee, she had no right to appeal what amounted to a discharge. Bernice King worked at the Hospital with Ms. Hays. She was a Human Service Worker II in MRDP 29. She had an opportunity to observe Ms. Hays' work. Ms. King used the charts maintained by Ms. Hays, and she found them to be in good order. Danielle Rene Shaw worked at the Hospital with Ms. Hays. She was a Human Service Worker II in MRDP 29. She had an opportunity to observe Ms. Hays' work. Ms. Shaw used the charts maintained by Ms. Hays, and she found them to be in good order. She thought Ms. Hays was a hard worker. Mark Flodin, M.D., worked as a physician in MRDP 29 when Ms. Hays was working there, and he had an opportunity to observe her performance. He noted that she was a hard worker and had a professional attitude. He said she maintained the ward charts in an orderly fashion. He was surprised when she was terminated. Ms. Hays' position was filled by Ms. Ryan Smith, who came to the Hospital from another state agency. She was paid at the rate of $828.17 bi-weekly. Ms. Hays applied for over a hundred jobs with the State of Florida using the state's website, MyFlorida.com. She also sought employment with 15 private employees. She was interviewed twice, but received no job offers. She was never offered an interview at the Hospital. She received unemployment compensation for about six months after she left the Hospital. Subsequent to her departure from the Hospital, and her inability to secure other employment, she had to have her depression medicine, Zoloft, increased, but she still feels depressed and worthless. She is also taking Chlonzpam, an anti- anxiety drug, and Wellbutrin. Ms. Hays' mother works at the Hospital, as a licensed practical nurse, and her husband was once employed there also. Her father is retired from employment at the Hospital, and her grandmother and grandfather worked there.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations dismiss the Petition of Alicia Hays. DONE AND ENTERED this 25th day of July, 2007, in Tallahassee, Leon County, Florida. S HARRY L. HOOPER 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 25th day of July, 2007. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Carolyn Dudley, Assistant Staff Director Department of Children and Family Services 1317 Winewood Boulevard Building 1, Room 101F Tallahassee, Florida 32399-0700 Sharon L. Ray, Esquire Agency for Persons with Disabilities 3700 Williams Drive Marianna, Florida 32446 Erika E. Bush, Esquire Marie A. Mattox, P.A. 310 East Bradford Road Tallahassee, Florida 32303 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
Findings Of Fact At all times material hereto, Dr. Esteban Valdes-Castillo, a Board- certified psychiatrist, was the Medical Director of Progressive Health Center, Inc. Blanche Lear, a psychiatric social worker, was an employee of the Center. Between 1978 and August, 1981, Petitioner paid Respondent $45,627.16 in Medicaid payments for counseling ser- vices rendered by Blanche Lear. A two-way mirror was located in the common wall between Lear's and Valdes-Castillo's offices. Of the Medicaid recipients counseled by Lear, Valdes-Castillo did not meet, interview, counsel or even observe all of the patients for whom payments were made to the Center by Petitioner. Further, Valdes-Castillo only observed Lear's coun- seling sessions approximately once a month over the time period involved and then only upon the specific request of Lear to observe a specific patient for a specific reason.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered by Petitioner directing Respondent Progressive Health Center, Inc., to reimburse to Petitioner the amount of $45,627.16. DONE and RECOMMENDED this 14th day of March, 1983, in Tallahassee, Leon County, Florida. LINDA M. RIGOT 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 14th day of March, 1983. COPIES FURNISHED: Robert A. Weiss, Esquire Medicaid Program Office Department of Health and Rehabilitative Services 1317 Winewood Boulevard, Suite 233 Tallahassee, Florida 32301 J. Michael Sara, Esquire 2153 Coral Way, Suite 400 Miami, Florida 33145 David H. Pingree, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32301
The Issue The issue is whether the medical license of Ted G. Avner, M.D., should be revoked or otherwise penalized based on the acts alleged in the Administrative Complaint.
Findings Of Fact At all times material to his action, Dr. Avner has been licensed in the State of Florida, holding license ME 0014896. Dr. Avner was licensed to practice medicine in Colorado in 1974. The Colorado State Board of Medical Examiners is the licensing authority for the State of Colorado. On December 9, 1985, the Colorado Board of Medical Examiners summarily suspended Dr. Avner's license to practice medicine due to substance abuse involving his personal ingestion of cocaine. On February 14, 1986, the Colorado Board of Medical Examiners, by Stipulation and Order, granted a reinstatement of Dr. Avner's license to practice medicine with certain terms of probation, including the prohibition of his use of substances of abuse. Subsequently, Dr. Avner relapsed by again using cocaine. After testing positive for cocaine on a random urine test, Dr. Avner reported that fact to the Colorado Board. On January 23, 1987, he entered into an agreement with the Colorado Board of Medical Examiners that he would refrain from the practice of medicine until permitted to do so by order of the board. Thereafter he entered and completed an addiction treatment program and then moved to Virginia, a state in which he was not licensed to practice medicine. Effective March 11, 1988, the Colorado State Board of Medical Examiners accepted Dr. Avner's voluntary relinquishment of his medical license. The Stipulation which Dr. Avner signed clearly states that the relinquishment was permanent, but it also provides for the reinstatement of Dr. Avner's license to practice medicine if he submits "evidence satisfactory to the Board that he qualifies under all subsections of the Colorado Medical Practice Act." The terms of the Stipulation and Order of the Board make it clear that the relinquishment was called "permanent," but was in fact subject to reinstatement. After moving to Virginia, Dr. Avner contacted David G. Fluharty, M.D. Dr. Fluharty is the founder and present Chairman of the Physicians' Health and Effectiveness Committee of the Medical Society of Virginia. The purpose and function of that Committee in Virginia is the same as that of the Florida Physician's Recovery Network administered by Roger Goetz, M.D. Dr. Fluharty referred Dr. Avner to the Talbott Recovery Center in Atlanta, Georgia. Dr. Avner completed the addiction treatment program there and returned to Virginia in March, 1989. Since March 29, 1989, Dr. Avner has continued to reside in Virginia, has remained active in the recovery program of the Physicians' Health and Effectiveness Committee of the Medical Society of Virginia, and has complied with all the requirements of that program, including random drug testing, maintaining sobriety, and participating in required meetings. Between March 29, 1989, and July 25, 1991, Dr. Avner's urine has been tested numerous times and all tests have been negative. Dr. Avner is currently under contract with the Physicians' Health and Effectiveness Committee of the Medical Society of Virginia which is very similar to and consistent with the kind of contract used by the Physician's Recovery Network in Florida for chemically dependent physicians. While residing in Virginia, Dr. Avner has worked regularly as a volunteer as a counselor and facilitator of the aftercare group, Caduceus. He also regularly attends other aftercare groups such as A.A. and N.A. Beginning in October, 1989, Dr. Avner worked once or twice a week as a volunteer at the Bradley Free Clinic, first as a nurse assistant and later assuming more responsibilities consistent with his licensure status. Dr. Avner has abstained from the use of cocaine since January 25, 1987, and from alcohol since August 19, 1989. He applied for a medical license in Virginia and was denied by Order dated April 11, 1988. In 1989, Dr. Avner applied for his medical license in Colorado and was initially denied. On his request for reconsideration, the Colorado Board granted licensure. By Order dated January 18, 1991, the Colorado Board of Medical Examiners approved a Stipulation and Order granting Dr. Avner an "unrestricted license" to practice medicine in Colorado, subject to the terms of probation set forth in the Order. On Dr. Avner's return to Colorado he can commence the practice of medicine under the terms and conditions of a monitored three-year probation which require that he maintain sobriety and abstain from all addictive, habit forming drugs or controlled substances not prescribed by his personal physician or dentist; that his practice and sobriety be monitored by a physician approved by the Board; that he and his monitor provide quarterly reports to the Board regarding the status of his practice and sobriety; that he participate in a Board approved drug abuse treatment program; that he provide urine tests on a random basis; and that he obtain and provide periodic psychological reports. Dr. Avner again applied for a medical license in Virginia and was denied by Order dated April 5, 1990. He again applied and was finally granted an unrestricted license by Order of the Virginia Board dated February 13, 1991. The Virginia license contains no term of probation or other restriction. In July, 1991, Dr. Avner began a one-year surgical fellowship in pediatric otolaryngology at the University of Virginia Medical School.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Professional Regulation, Board of Medicine, enter a Final Order and therein: Reprimand Dr. Avner for violation of Section 458.331(1)(b). Restrict Dr. Avner's Florida license by requiring that Dr. Avner continue to remain in good standing in both Colorado and Virginia and that he comply with his contract in Virginia for its entire term. The Virginia Physicians' Health and Effectiveness Committee is to be asked to immediately notify the Florida Board of Medicine if Dr. Avner fails to remain in full compliance with that contract. Fine Dr. Avner in the amount of $1000.00. DONE and ENTERED this 8th day of October, 1991, in Tallahassee, Florida. DIANE K. KIESLING Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 8th day of October, 1991. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 89-5275 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the proposed findings of fact submitted by the parties in this case. Specific Rulings on Proposed Findings of Fact Submitted by Petitioner, Department of Professional Regulation, Board of Medicine Each of the following proposed findings of fact is adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1(1) and 3(3). Proposed finding of fact 2 is subordinate to the facts actually found in this Recommended Order. Specific Rulings on Proposed Findings of Fact Submitted by Respondent, Ted G. Avner, M.D. Each of the following proposed findings of fact is adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1-9(1-8); 10-15(10-15); 17-22(17- 21); and 23(22). Proposed finding of fact 24 is subordinate to the facts actually found in this Recommended Order Proposed finding of fact 16 is unsupported by the competent, substantial evidence. Dr. Falkinburg is not accepted as an expert qualified to render such an opinion, Dr. Fluharty's statements are hearsay and cannot support a finding of fact, and Dr. Goetz' testimony is entitled to little weight because it is based essentially on hearsay information. COPIES FURNISHED: Dorothy Faircloth, Executive Director Board of Medicine 1940 North Monroe Street Tallahassee, FL 32399-0750 Jack McRay General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792 Wilson Jerry Foster Attorney at Law 227 East Virginia Street Tallahassee, FL 32301-1263 Francesca Small Plendl Senior Attorney Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792
Findings Of Fact At all times relevant thereto, respondent, Manuel M. Maralit, held medical doctor license number ME 0033337 issued by petitioner, Department of Professional Regulation, Board of Medical Examiners. Maralit has been licensed as a medical doctor by the State of Florida since September 13, 1978. He has been a medical doctor since graduation from medical school in May, 1967. From January 1, 1983 through September 30, 1983, Maralit practiced medicine in Alachua County, Florida. During that period of time, he filed two unauthorized claims under the Florida Medicaid Program, each having an aggregate value of $200 or more in violation of Subsection 409.325(4)(a), Florida Statutes. He also received one unauthorized payment under the same program having an aggregate value of more than $200.00 in violation of Subsection 409.325(4)(c), Florida Statutes. After an information was filed by the State Attorney on December 13, 1983, Maralit pled guilty to the above three violations, and to a fourth charge of grand larceny. For this, he received twenty years probation, 2,000 hours of community service, a $15,000.00 fine to be paid within 12 months, and was required to make restitution of $2,398.51 to the Department of Health and Rehabilitative Services and $921.00 to the Florida National Bank. According to the official records of petitioner introduced into evidence, Dr. Maralit was subject to prior disciplinary action by the Medical Board in 1982 (DOAH Case No. 81-1367, Final Order entered January 4, 1982). At that time his license was suspended for thirty days, and was placed on probation for one year. The probationary period has long since expired. The violations in that proceeding are not similar in any respect to those charged in this case. There is no evidence as to any damage, physical or otherwise, to specific patients caused by respondent's conduct.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that respondent be found guilty as charged in Counts I and II of the administrative Complaint, and that his medical license be suspended for one year with six months' suspension stayed and his license be placed on three years probation. Count III should be dismissed. DONE and ORDERED this 4th day of December, 1985, 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 4th day of December, 1985.
The Issue Whether the Agency for Health Care Administration (Agency or Petitioner) is entitled to recover alleged Medicaid overpayments, administrative fines, and investigative, legal, and expert witness costs from Kenneth O. Harden, d/b/a Ken Care, Inc. (Respondent).1/
Findings Of Fact The Agency is the state agency responsible for administering the Florida Medicaid Program (Medicaid). Medicaid is a federally-funded state-administered program that provides health care services to certain qualified individuals. Respondent, Kenneth O. Harden, is an individual who was enrolled as a provider in both the Florida Medicaid Developmental Disabilities Waiver Program (DD Program) and the Florida Medicaid Family Supported Living Waiver Program (FSL Program) at all material times. By enrolling in the Medicaid programs, Respondent agreed to fully comply with all state and federal laws, policies, procedures, and handbooks pertaining to the Medicaid program. Respondent submitted bills to Medicaid while he was enrolled and these bills were processed and paid to Respondent through the Florida Medicaid automated payment system. Claimed services for which Respondent submitted bills and was paid by Medicaid include in-home support, personal care assistance, self-care/home management training, companion support, supported living coaching, and respite care. The Agency is authorized to recover Medicaid overpayments, as appropriate. § 409.913(1)(e), Fla. Stat.4/ One method the agency uses to discover Medicaid overpayments is by auditing billing and payment records of Medicaid providers. Such audits are performed by staff in the Agency's Bureau of Medicaid Program Integrity (MPI). Providers are identified as potential candidates for auditing by a combination of referrals from field offices, data processing offices, and the Agency?s fraud and abuse hotline, and a random audit process.5/ In 2011, Agency Administrator Robi Olmstead identified Respondent as a potential audit candidate through a field office referral. She opened two cases on Respondent, one for each provider number, and assigned the cases to Kristen Koelle, then Program Analyst, for full audits. Ms. Koelle completed the first steps of the audit process according to established protocols. She reviewed Respondent?s provider information and billing to determine what types of services he provided, what types of claims he had submitted, and how much had been paid by Medicaid. In consultation with Ms. Olmstead, Ms. Koelle selected January 1, 2008, through June 30, 2010, as the audit period. During that audit period, Respondent submitted 10,578 claims for 47 recipients alleged to have received services from Respondent through the DD Program, and 2,485 claims for 22 recipients alleged to have received services from Respondent through the FSL Program. When the Agency audits a Medicaid provider for possible overpayments it "must use accepted and valid auditing, accounting, analytical, statistical, or peer-review methods, or combinations thereof. Appropriate statistical methods may include, but are not limited to, sampling and extension to the population . . . and other generally accepted statistical methods." § 409.913(20), Fla. Stat. The audit method used by the Agency depends on the characteristics of the provider and of the claims. For example, where a provider serves thousands of Medicaid recipients during the audit period, but the number of claims for each recipient is small, then the Agency may use a single-stage cluster sampling methodology. Under this approach, a random sample of recipients is selected, and then all claims are examined for the recipient sample group. Alternatively, where there are so many claims per recipient that it would be impractical to review all claims for each recipient or all claims for a sample group of recipients, a two-stage cluster sample methodology may be used. Under this approach, a random sample of recipients is selected, followed by a random selection of sample claims for the recipients in the sample. As a general target, the Agency considers samples of between 5 and 15 claims per recipient to be reasonable sample sizes for the second stage of two-stage cluster sampling. However, if a given recipient has fewer than 15 claims, a smaller number of claims for that recipient will be selected. Because of the high volume of claims generated by Respondent during the audit period in this case, Ms. Koelle determined with her supervisor that a two-stage cluster sampling methodology would be used. In other words, it was not feasible to review all 13,063 claims generated by the recipients Respondent claimed to have served during the audit period. Using a computer program to carry out the random sampling, the Agency's two-stage cluster sampling software selected a random sample of Respondent?s recipients under both the DD Program and the FSL Program during the audit period. The software generated a list of 30 recipients in the DD Program and 21 recipients in the FSL Program. It then selected a random sample of between 5 and 15 claims for each recipient from Respondent?s paid-claims data in the Agency?s data warehouse for the audit period. For the DD Program, 344 sample claims for the 30 sample recipients were randomly selected from among the 10,578 claims submitted by Respondent during the audit period. For the FSL Program, 256 sample claims for the 21 sample recipients were randomly selected from among the 2,485 claims submitted by Respondent during the audit period. Thereafter, Ms. Koelle prepared a “demand letter” for each of the two programs, informing Respondent that audits had been initiated and requesting that Respondent provide Medicaid- related records to substantiate billing records of the identified recipients, as well as the employment/personnel records or files for any of Respondent?s staff who provided services to Medicaid recipients during the audit period. The letters gave Respondent the standard 21-day period to submit the requested records. Ms. Olmstead reviewed and signed the letters and they were mailed, along with a Provider Questionnaire and Certification of Completeness of Records, to Respondent on July 26, 2011. After requesting and receiving a series of extensions, Respondent complied with the demand letters on September 13, 2011. Respondent delivered to the Agency Medicaid-related records and employee documents, along with the Provider Questionnaires and signed Certificates of Completeness, which certified the accuracy, truthfulness, and completeness of the records submitted. Persons who provide Medicaid services must meet certain minimum qualifications and obtain certain trainings, otherwise the person is deemed “ineligible” or “disqualified” and Medicaid cannot reimburse for services provided by such persons. All persons who provide services directly to Medicaid recipients must also pass a Level 2 background screening. Training and screening requirements for staff of Medicaid providers during the audit period are set forth in the Medicaid Handbook and the DD Handbook. Upon receiving records sent by Respondent in response to the Agency's July 26, 2011, letters, Ms. Koelle first reviewed Respondent's staff files to determine whether each staff member met the necessary requirements to provide Medicaid or Medicaid waiver services. Respondent produced staff files for 30 of the 39 staff members who provided services to randomly-selected recipients during the audit period. Of those 30 files, 16 contained no documentation of core competency training, eight had incomplete or no background screening documentation, one had a disqualifying background screening, and 22 lacked documentation of required training in HIV/AIDS, Infection Control, Zero Tolerance, or CPR during the audit period. In addition, 13 staff files revealed the staff member did not meet the experience or educational requirements for the position held. Next, Ms. Koelle reviewed the documentation Respondent submitted for each recipient against the 344 DD Program claims and 256 FLS program claims in the random sample and recorded her findings on worksheets along with her descriptions of any deficiencies or noted violations of Medicaid law. Ms. Koelle noted numerous violations of Medicaid laws, including, but not limited to, the following: of the 344 DD Program sample claims, 127 were submitted without any supporting documentation, 67 were submitted without a service log to document services provided to the recipient, 36 were submitted for companion services provided to recipients who were ineligible because they either lived in a licensed residential setting or were receiving in-home support services, and 28 were submitted for unauthorized activities provided to recipients. The most common violation, services provided by unauthorized staff, appeared in 243 claims submitted by Respondent. Of the 256 FSL Program sample claims, 50 were submitted without supporting documentation, and 208 were submitted for services provided by unauthorized staff. Ms. Koelle also documented a handful of cases in which the unauthorized staff provided services outside the scope of the recipient?s service plan or overbilled for the services provided. Ms. Koelle found no claims that were allowed under the Medicaid law and, therefore, no claims that merited adjustment. Ms. Koelle completed her review and entered all amounts that she found to be disallowed into the computer program. The program added the figures to find the overpayment amount for the samples, and then extrapolated the overpayment to the entire universe of recipients, according to an established statistical methodology, which yielded the total overpayment amount. The computer program generated a printout showing the exact overpayment amount for each of the claims in the samples, and the total overpayment extended to the population. The figures on the printouts correspond to the figures on the worksheets. Utilizing this methodology, Ms. Koelle determined that Respondent had been overpaid by an amount of $568,250.01 for services in the DD Program, and $162,700.08 for services in the FSL Waiver program. Thereafter, she prepared the Preliminary Audit Reports (Preliminary Audits), describing the methodology applied to determine overpayment and the deficiencies that led to that determination. She attached to the Preliminary Audits the printouts, copies of her worksheets, and a copy of the spreadsheets with staff findings. A provision in the Preliminary Audits explains that Respondent may submit additional documentation to support the sample claims, although such submission may be deemed evidence of previous non- compliance. Ms. Olmstead reviewed, approved, and signed the Preliminary Audits, which were mailed with attachments to Respondent on October 18, 2011. After receiving the Preliminary Audits, Respondent again submitted records and a written response in an effort to further support the sample claims. However, Ms. Koelle determined that the records submitted were duplicates of records previously submitted by Respondent and did not support any change in her findings from the Preliminary Audits. In preparation of the Final Audit Reports, Ms. Koelle, in consultation with Ms. Olmstead, reviewed Respondent's documentation and found that there was insufficient documentation to support any of the sample claims in either the DD Program or the FSL Program. The deficiencies included incomplete or missing staff files, lack of documentation of services, no service authorization, no service logs or service logs that did not meet Medicaid handbook requirements, no monthly summary, and indications that ineligible staff members were providing services. In some instances, the service provided was ineligible as it did not further the recipient?s goals or was an unauthorized activity (e.g., watching a movie). Ms. Koelle recorded her findings in a separate spreadsheet for each audit. The spreadsheets, organized by recipient number, contain the following information for each of the claims in the samples: date of service (DOS), procedure code, procedure description, unit of service (UOS), cost per unit of service, amount paid to Respondent, claim determination (Allow, Adjust, or Deny), review determination, whether there was a document deficiency (Doc. Def.) or a billing amount issue, and the amount of the overpayment for the claim (O/P). Next, Ms. Koelle entered the disallowed amounts into the computer program, which added the amounts together, found the overpayment amount for the sample, and extended the overpayment to the entire population of 10,578 claims in the DD Program and 2,485 claims in the FSL Program. Ultimately, Ms. Koelle prepared the Final Audit Reports (Final Audits), which Ms. Olmstead signed and sent to Respondent on November 21, 2011. Because the records submitted by Respondent in response to the Preliminary Audits did not change the findings, the Final Audits reported the same overpayment amounts as the Preliminary Audits: $568,250.01 in the DD Program and $162,700.08 in the FSL Program. The Final Audits notified Respondent of the total overpayment calculations, described the types of non-compliance found in the sample claims, and explained the methodology employed to select the claims for review and extend the sample overpayment to arrive at the total overpayment amount. The Final Audits also advised Respondent that the Agency intended to recover fines in the amount of $113,650.00 for violations of requirements in the DD Program and $32,540.02 for violations of requirements of the FSL Program. Additionally, the Agency sought a total of $1,437.38 for costs of the two audits. Copies of the worksheets, as well as the two spreadsheets detailing the staff review findings, were attached. Respondent disputed the Final Audits and the Agency referred the matter to the Division. In preparation for the final hearing, the Agency consulted with Dr. Fred W. Huffer, a professor in the Department of Statistics at Florida State University with a B.S. in mathematics from the Massachusetts Institute of Technology and a Ph.D. in statistics from Stanford University. He has taught and researched statistics for more than 30 years at various institutions of higher learning. Dr. Huffer reviewed the Agency?s Preliminary and Final Audit findings and found one error in the analysis. In each audit, one randomly-selected recipient had submitted only one claim during the audit period. According to the Agency?s overpayment calculation methodology, the second-stage random sample may only be taken from those recipients with two or more claims during the audit period. Therefore, the Agency?s overpayment calculation included one incorrect variable. Dr. Huffer adjusted the formula and recalculated the overpayment with the correct variables for each audit. The result was a modest change to the final overpayment amounts -- a reduction of $8,368.36 for the DD Program and $818.44 for the FSL Program. The final adjusted total overpayments were $559,881.65 for the DD Program and $161,881.64 for the FSL Program. Respondent offered no witnesses and introduced no evidence at the final hearing. Instead of presenting contradictory expert testimony, Respondent attempted to undermine Dr. Huffer's opinions through cross-examination and argument. On cross-examination, Respondent attempted to challenge the reliability of the Agency?s sampling methodology and Dr. Huffer?s calculations. Respondent inquired as to the “authentication” of Dr. Huffer?s results and the requirements for determining when Dr. Huffer?s calculations were final, and insinuated that Dr. Huffer may have been biased because he has consulted with the Agency since 2004. Respondent was not effective in this regard. The methodology and description of two-stage cluster sampling were explained and confirmed at the final hearing by Dr. Huffer, who was accepted as an expert in statistical analysis and methodologies. In addition, the methodology comports with established law. See § 409.913, et seq., Fla. Stat.; Ag. for Health Care Admin v. Custom Mobility, Inc., 995 So. 2d 984 (Fla. 1st DCA 2008), cert. denied, 3 So. 3d 1246 (Fla. 2009). Dr. Huffer was familiar with the case at hand and with the science of random sampling of populations and the analysis of samples, including extension of results to the total population. Dr. Huffer analyzed the sampling method utilized by the Agency in this case with a program he personally developed for that purpose. Dr. Huffer repeated random simulation that recreated the audit circumstances many thousands of times, and found them to be accurate in this case. The software utilized by the Agency determined the amount of overpayments at a 95 percent confidence level. As explained by Dr. Huffer, if the entire procedure is repeated “many times, 95 percent of the time this value that they get to at the end would be less than the true amount” of the overpayment. In other words, the amount the Agency has asked Respondent to repay is most likely lower than the actual overpayment. In sum, Dr. Huffer credibly explained that the Agency?s cluster sampling method is appropriate and that it comports with the technical meaning of random sample and generally accepted statistical methods. Moreover, Dr. Huffer verified the adjusted overpayment amount through professionally accepted methodology. Dr. Huffer's opinions that the audits in this case utilized a correct and reasonable application of two-stage cluster sampling and that the sampling method used in this case was reasonable and comported with generally accepted statistical methods are accepted as credible and accurate.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Agency for Health Care Administration, enter a final order requiring Respondent, Kenneth O. Harden, d/b/a Ken Care, Inc., to: Repay the sum of $559,881.65 for claims in the Medicaid Development Disability Waiver Program that did not comply with the requirements of Medicaid laws, rules, and provider handbooks; Repay the sum of $161,881.64 as recoupment of claims in the Medicaid Family and Supported Living Waiver Program which did not comply with the requirements of Medicaid laws, rules, and provider handbooks; Pay interest on the sums of $559,881.65 and $161,881.64 at the rate of 10 percent (10%) per annum from the date of the overpayment determination; Pay a fine of $6,000 per agency action (for a total of $12,000) for violations of the requirements of Medicaid laws, rules, and provider handbooks; and Pay allowable costs of $3,405.71, pursuant to section 509.913(23), Florida Statutes. DONE AND ENTERED this 20th day of March, 2013, in Tallahassee, Leon County, Florida. S SUZANNE VAN WYK 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 20th day of March, 2013.
The Issue The issues in this cause concern whether disciplinary action should be taken against the Respondent's license to practice medicine, based upon alleged violations of Section 458.331(1)(b), Florida Statutes. Specifically, the disputed issue concerns whether his license to practice medicine was revoked, suspended or otherwise acted against by the licensing authority of another state.
Findings Of Fact The Respondent is and at all times material hereto, has been licensed as a physician in the State of Florida. He holds licensed number ME0028248 issued by the State of Florida, Board of Medical Examiners. Respondent is also licensed in the State of New York as a medical doctor. The Petitioner is an agency of the State of Florida charged with enforcing the medical practice standards contained in Chapter 458, Florida Statutes and related rules. Pertinent provisions of that chapter and Chapter 455, Florida statutes authorize the Petitioner to make investigations of physician's licenses in the State of Florida and, if probable cause exists to indicate that a physician has engaged in conduct proscribed by Chapter 458, to commence formal proceedings seeking disciplinary action against such physicians. The New York State Department of Education and its Board of Regents is the licensing authority for medical doctors for the State of New York, (Petitioner's Exhibit 3 is evidence.) On August 14, 1986, the Commissioner of Education of the State of New York, on behalf of the State Education Department and its Board of Regents entered an order wherein the Respondent'S license to practice medicine in the State of New York was suspended for one year. That suspension was stayed and the Respondent's license to practice medicine was placed in probationary status with the probation being subject to certain conditions. See Petitioner's Exhibit 3 in evidence. In that order, the Respondent, had been found guilty of professional misconduct by being convicted of committing crimes under the state law of New, York. Specifically, he was convicted of four counts of violations of Public Health Law 12.B(2), by being registered as a medicaid provider and leasing space for the practice of medicine at a dental office, a "shared health facility", the rental fee for which was calculated and paid as a percentage of the defendant's earnings for medical services rendered on the premises. The Respondent was also found guilty of falsely representing that he was certified by the American Board of Internal Medicine when in fact he was not so certified, and by the willful making and filing of a false report, which also constitutes unprofessional conduct within the meaning of the law of the State of New York, specifically 8NYCRR 29.1(b)(6), (1984), cited in Petitioner's Exhibit 3 in evidence.
Recommendation Accordingly, it is therefore RECOMMENDED that a Final Order be entered by the State of Florida, Board of Medical Examiners suspending the Respondent's license for one full year or until such time as the Respondent appears before the Board of Medicine and demonstrates that he is capable of practicing medicine with care, skill and safety to patients including a demonstration that his license to practice medicine in New York is reinstated and is unrestricted, whichever time period is less. DONE AND ENTERED this 3rd day of July, 1989, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of July, 1989. COPIES FURNISHED: Jonathan King, Esquire Department of Professional Regulation Suite 60 1940 North Monroe Street Tallahassee, Florida 32399-0729 Vijay Sakhuja, M.D. 120 Secor Drive Port Washington, New York 11050 Vijay Sakhuja, M.D. 90-10 Sutphin Boulevard Jamaica, New York 11435 Dorothy Faircloth, Executive Director Board of Medicine Department of Professional Regulation Suite 60 1940 North Monroe Street Tallahassee, Florida 32399-0729 Kenneth Easley, General Counsel Department of Professional Regulation Suite 60 1940 North Monroe Street Tallahassee, Florida 32399-0729 ================================================================= DISTRICT COURT OPINION ================================================================= IN THE DISTRICT COURT OF APPEAL FIRST DISTRICT, STATE OF FLORIDA VIJAY SAKHUJA, M.D., NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND Appellant, DISPOSITION THEREOF IF FILED. vs. CASE NO. 89-2296 DOAH CASE NO. 88-4658 DEPARTMENT OF PROFESSIONAL REGULATION, Appellee. / Opinion filed October 10, 1990. Appeal from an Order of the Department of Professional Regulation Walter D. Forehand, of Myers & Forehand, Tallahassee, for appellant. Lisa S. Nelson, Department of Professional Regulation, for appellee. WENTWORTH, J. Appellant seeks review of an administrative order by which appellee Department of Professional Regulation, through its Board of Medicine, suspended appellant's medical license. The duration of this suspension exceeds the penalty which the hearing officer had recommended. Although we find no error with regard to appellant's other contentions, we do find that the Board did not fully and adequately delineate the basis for increasing the recommended penalty. We therefore reverse the order appealed. Appellant was licensed to practice medicine in both Florida and New York, and the current proceeding ensued after disciplinary action was taken by the licensing authority in New York for violations which had occurred in that state. The New York licensing authority acted upon appellant's conviction for violating a public health law which prohibits calculating medical office rental fees on a percentage of earnings, and upon appellant's false reporting and false representation of a medical certification. The proceeding in Florida was based upon this New York action, as appellant was charged with violating section 458.331(1)(b), Florida Statutes, which specifies that disciplinary action may be taken in this state when a license has been "acted against" by the licensing authority of another jurisdiction. After an administrative hearing on this charge the hearing officer recommended that appellant's Florida license be suspended for one year or until such time as he satisfies certain conditions including the reinstatement of his New York license. The Board of Medicine adopted the hearing officer's recommended findings, but increased the penalty so as to suspend appellant's license in Florida for one year and until such time as the various other conditions are satisfied. The order increasing the recommended penalty recites that: Rule 21M-20.001(1)(b), F.A.C., provides for discipline for action taken in another jurisdiction to be the discipline which would have been imposed if the substantive violation had occurred in Florida. Although this explanation identifies a permissible basis for the Board's action, and it does not appear that the hearing officer considered the applicability of the cited rule, the order does not specify the asserted substantive Florida violation had appellant's conduct occurred in this state. While appellant's conduct in New York, as indicated by the substantive violations in that state, might be such as would also constitute substantive violations in Florida, the Board's failure to delineate a particular substantive Florida violation does not fully satisfy the Board's obligation, as mandated by section 120.57(1)(b)10, Florida Statutes, to provide a particularize statement of the reason for increasing the recommended penalty. Appellee concedes that the Board's order is deficient, but contends that it should be afforded the opportunity to enter a more thorough and explicit order on remand. Because the order now being appealed reflects a legally permissible basis for the challenged action, on remand the Board may address the matter with greater particularity should it again decide to increase the recommended penalty. See Van Ore v. Board of Medical Examiners, 489 So.2d 883 (Fla. 5th DCA 1986); see also, Pages v. Department of Professional Regulation, 542 So.2d 456 (Fla. 3d DCA 1989). The order appealed is reversed and the cause remanded. MINER and WOLF, JJ., CONCUR.
