Conclusions THE PARTIES resolved all disputed issues and executed a Settlement Agreement. The parties are directed to comply with the terms of the attached settlement agreement. Based on the foregoing, this file is CLOSED. DONE and ORDERED on this the a l ah, of fiderd , 2012, in Tallahassee, Leon County, Florida. 4% ‘ CA kh fo ELIZABETH DUDEK, SECRETARY Agency for Health Care Administration 1 Filed June 26, 2012 2:18 PM Division of Administrative Hearings 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: Jeffries H. Duvall Assistant General Counsel Agency for Health Care Administration Office of the General Counsel (Interoffice) CYNTHIA A. MIKOS, ESQ. Allen Dell, P.A. 202 S. Rome Ave. - Suite 100 Tampa, FL 33606 cmikos@allendell.com (Electronic Mail) J.D. Parrish Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 Mike Blackburn, Bureau Chief, Medicaid Program Integrity Finance and Accounting Health Quality Assurance (via email) 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, Laserfiche or electronic mail on this the ZS" day of c JA » 2012. Richard Shoop, Esquire Agency Clerk State of Florida Agency for Health Care Administration 2727 Mahan Drive, MS #3 Tallahassee, Florida 32308-5403 (850) 412-3630/FAX (850) 921-0158 STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS STATE OF FLORIDA, AGENCY FOR HEALTH CARE ADMINISTRATION, Petitioner, vs. CASE NO. 11-5089MPI CI. NO. 11-1553-000 HILLSBOROUGH ASSOCIATION FOR RETARDED CITIZENS, INC., Respondent. / SETTLEMENT AGREEMENT STATE OF FLORIDA, AGENCY FOR HEALTH CARE ADMINISTRATION (‘AHCA” or “the Agency”), and Hillsborough Association for Retarded Citizens, Inc. (“PROVIDER”), by and through the undersigned, hereby stipulate and agree as follows: 1. The two parties enter into this agreement to memorialize the resolution of this matter. 2. PROVIDER is a Florida Medicaid provider, provider number 024102498 and was a provider during the audit period, January 1, 2009 to December 31, 2009. 3. In its Final Agency Audit Report (constituting final agency action) dated September 2, 2011, AHCA notified PROVIDER that review of Medicaid claims by the Division of Medicaid, Office of the Deputy Secretary, and Medicaid Program Integrity (MPI), Office of the AHCA Inspector General, indicated certain claims, in whole or in part, had been inappropriately paid. The Agency sought recoupment of this overpayment in the amount of $34,317.55. In response, PROVIDER filed a petition for formal administrative hearing. It was assigned DOAH Case No. 11-5089MPI. Hillsborough Association for Retarded Citizens, Inc. C.l. 11-1553-000 - Settlement Agreement 4. Subsequent to the original audit, in preparation for trial, AHCA re-reviewed the PROVIDER’s claims and evaluated additional documentation submitted by the PROVIDER. As a result of the additional review, AHCA determined the overpayment should be adjusted to $27,078.51, plus $5,415.70 in fines and $674.38 in costs for a total due of $33,168.59. 5. In order to resolve this matter without further administrative proceedings, PROVIDER and the AHCA agree as follows: (1) —AHCA agrees to accept the payment set forth herein in settlement of the overpayment issues arising from the captioned audit. (2) The amount in dispute that is now being resolved is twenty-seven thousand seventy eight dollars and fifty-one cents ($27,078.51) on the indebtedness, five thousand four hundred fifteen dollars and seventy cents ($5,415.70) in fines, plus six hundred seventy four dollars and thirty-eight cents ($674.38) in investigative costs for a total of thirty three thousand one hundred sixty eight dollars and fifty- nine cents ($33,168.59). PROVIDER will make an initial payment of eight thousand dollars ($8,000) and the remaining balance to be paid in 6 equal monthly installments. This amount due will be offset by any amount already received by the Agency in this matter. Furthermore, PROVIDER is advised that pursuant to Section 409.913, Florida Statutes, failure to pay in full, or enter into and abide by the terms of any repayment schedule set forth by the Agency may result in termination from the Medicaid program, withholding of future Medicaid payments, or other such remedies as provided by law. Any outstanding balance accrues at 10% interest per year. Full payment will fully and completely settle all claims in these proceedings before the Division of Administrative Hearings Hillsborough Association for Retarded Citizens, Inc. C.1. 11-1553-000 - Settlement Agreement 6. (DOAH Case No. 11-5089MPI). Should the provider’s enrollment with Medicaid be terminated, the full amount owed will be due within 30 days of termination. (3) In the event any interim payments are received or withheld, by whatever means, prior to the entry of the Final Order, Medicaid Accounts Receivable shall make the adjustment to credit such amounts, dollar for dollar, as quickly as is practicable. (4) Compliance with this repayment agreement fully and completely settles all claims in these proceedings before the Division of Administrative Hearings (DOAH Case No. 11-5089MPI). Should the provider’s enrollment with Medicaid be terminated, the full amount owed will be due within 30 days of termination. (5) PROVIDER and AHCA agree that full payment, as set forth above, resolves and settles this case completely. It will release both parties from any administrative or civil liabilities or claims arising from the findings in audit C.I. 11-1553-000. (6) PROVIDER agrees that it will not rebill the Medicaid Program in any manner for claims that were not covered by Medicaid, which are the subject of the audit in this case. Questions regarding procedures for submitting payment should be directed to Medicaid Accounts Receivable, (850) 412-3901. The C.I. number listed on the first page of this agreement must be legibly entered on the check to assure proper credit. Please mail payment to: AGENCY FOR HEALTHCARE ADMINISTRATION Medicaid Accounts Receivable — MS # 14 2727 Mahan Drive, Bldg. 2, Suite 200 Tallahassee, Florida 32308 Hillsborough Association for Retarded Citizens, Inc. C.1. 11-1553-000 - Settlement Agreement 7. PROVIDER agrees that failure to pay any monies due and owing under the terms of this Agreement shall constitute PROVIDER’S authorization for the Agency, without further notice, to withhold the total remaining amount due under the terms of this agreement from any monies due and owing to PROVIDER for any Medicaid claims. 8. AHCA reserves the right to enforce this Agreement under the laws of the State of Florida, the Rules of the Medicaid Program, and all other applicable rules and regulations. 9. This settlement does not constitute an admission of wrongdoing or error by either party with respect to this case or any other matter. 10. Each party shall bear its own attorneys’ fees and costs, with the exception that the Respondent shall reimburse, as part of this settlement, $674.38 in Agency costs and $5,415.70 in fines. This amount is included in the calculations and demand of paragraph 5(2). 11. The signatories to this Agreement, acting in a representative capacity, represent that they are duly authorized to enter into this Agreement on behalf of the respective parties. 12. This Agreement shall be construed in accordance with the provisions of the laws of Florida. Venue for any action arising from this Agreement shall be in Leon County, Florida. 13. This Agreement constitutes the entire agreement between PROVIDER and AHCA, including anyone acting for, associated with or employed by them, concerning all matters and supersedes any prior discussions, agreements or understandings; there are no promises, representations or agreements between PROVIDER and the AHCA other than as set forth herein. No modification or waiver of any provision shall be valid unless a written amendment to the Agreement is completed and properly executed by the parties. Hillsborough Association for Retarded Citizens, Inc. C.1. 11-1553-000 - Settlement Agreement 14. This is an Agreement of settlement and compromise, made in recognition that the parties may have different or incorrect understandings, information and contentions, as to facts and law, and with each party compromising and settling any potential correctness or incorrectness of its understandings, information and contentions as to facts and law, so that no misunderstanding or misinformation shall be a ground for rescission hereof. 15. | PROVIDER expressly waives in this matter its right to any hearing pursuant to sections 120.569 or 120.57, Florida Statutes, the making of findings of fact and conclusions of law by the Agency, and all further and other proceedings to which it may be entitled by law or rules of the Agency regarding this proceeding and any and all issues raised herein. PROVIDER further agrees that it shall not challenge or contest any Final Order entered in this matter which is consistent with the terms of this settlement agreement in any forum now or in the future available to it, including the right to any administrative proceeding, circuit or federal court action or any appeal. 16. This Agreement is and shall be deemed jointly drafted and written by all parties to it and shall not be construed or interpreted against the party originating or preparing it. 17. To the extent that any provision of this. Agreement is prohibited by law for any reason, such provision shall be effective to the extent not so prohibited, and such prohibition shall not affect any other provision of this Agreement. 18. This Agreement shall inure to the benefit of and be binding on each party’s successors, assigns, heirs, administrators, representatives and trustees. 19. All times stated herein are of the essence of this Agreement. Hillsborough Association for Retarded Citizens, Inc. C.|. 11-1553-000 - Settlement Agreement 20. This Agreement shall be in full force and effect upon execution by the respective parties in counterpart. ROUGH ASSOCIATION FOR RETARDED CITIZENS, INC. Dated: “A727 L ZZ 2012 py. UO CW “CCL FECL (Print name) ITS: SP OPC B22 20 Revi OLN 7 AGENCY FOR HEALTH CARE ADMINISTRATION 2727 Mahan Drive, Mail Stop #3 Tallahassee, FL 32308-5403 ‘ Dated: G/al 2012 Miller Inspector General Dated: bl f .2012 William H. Roberts Dated: Z f_,2012
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
Findings Of Fact At all times pertinent to this proceeding, Petitioner was a medicaid provider in the State of Florida. At all times pertinent to this proceeding John Whiddon was the Chief of Florida's Medicaid Program Integrity. Florida's Medicaid Program Integrity is charged with the oversight of the Medicaid program in Florida. The parties stipulated that Mr. Whiddon would have testified that the responsibility is ". . . basically to see that the Medicaid program gets what it pays for." The Florida Medicaid Program Integrity has the responsibility to protect Medicaid funds should an investigation reveal there is fraud or willful misrepresentation. Section 409.913(3), Florida Statutes, provides as follows: (3) Any suspected criminal violation or fraudulent activity by a provider, or by the representative or agent of a provider, identified by the department shall be referred to the Medicaid fraud control unit of the Office of the Auditor General for investigation. The Medicaid Fraud Control Unit (MFCU) is the agency with the statutory responsibility for criminal investigations in the Medicaid program. The Medicaid Program Integrity is a part of the Florida Department of Health and Rehabilitative Services. The MFCU is a part of the Office of the Auditor General, which is an agency of the legislative branch of government. On occasions, the MFCU advises Medicaid Program Integrity of a criminal investigation into a particular provider's activities. However, Medicaid Program Integrity is not told of the specific facts of the criminal investigation until after the case is prosecuted or until after the case is closed. The parties stipulated that Mr. Whiddon would testify that he is of the opinion that Section 409.913(7), Florida Statutes, prohibits MFCU from revealing anything about its investigation while the investigation is ongoing. Mr. Whiddon received a letter dated April 6, 1993, from John G. Morris, Jr., the Director of the Medicaid Fraud Control Unit, which referenced Petitioner as the provider, and which stated as follows: Pursuant to provisions of 42 CFR 455.23, this is to advise you that there is reliable evidence that the above referenced provider billed for home health care services that were not provided and this investigation will be referred for criminal prosecution. No specific facts of this criminal investigation were given to the Medicaid Program Integrity by the MFCU. The parties stipulated that Mr. Whiddon would testify that Program Integrity believes that the Petitioner will be prosecuted based upon the MFCU investigation as stated in the April letter, but that Mr. Whiddon concedes that any decision to prosecute is solely the decision of the prosecutor and may be declined. During the months of April, May, and June of 1993, the Petitioner continued to receive substantial Medicaid payments. These payments amounted to approximately $28,906 every week. Mr. Whiddon decided it was necessary to withhold Medicaid payments to the Petitioner until the MFCU investigation was completed. This decision was based solely on the MFCU letter of April 6, 1993, and his interpretation of his responsibility under 42 CFR 455.23. Mr. Whiddon directed Mike Morton to sign the Agency's letter to Petitioner dated June 29, 1993, because Mr. Whiddon was unavailable because of an unrelated special assignment. The letter dated June 29, 1993 provided, in pertinent part, as follows: PLEASE TAKE NOTICE that the undersigned has directed Consultec, the fiscal agent for the Department of Health and Rehabilitative Services, to withhold Medicaid payments to A-Community Home Health, Inc. in accordance with the provisions of 42 CFR 455.23. This action is being taken because of receipt of reliable evidence that the circumstances giving rise to the need for a withholding of payment involves fraud or willful misrepresentation. The withholding of payment will be temporary and will not continue after: The Department or prosecuting authorities determine that there is insufficient evidence of fraud or willful misrepresentation by A-Community Home Health, Inc., or Legal proceedings related to A-Community Home Health, Inc., alleged fraud or willful misrepresentation are completed. The type of Medicaid claims withheld are home health claims.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a Final Order which terminates the withholding of Medicaid payments from Petitioner and which reimburses Petitioner for payments that have been withheld. DONE AND ENTERED this 3rd day of November 1993, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON 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 November 1993.
The Issue Whether Respondent, a Medicaid provider, committed the violations alleged in the agency action letter dated March 14, 2011, and, if so, the penalties that should be imposed.
Findings Of Fact At all times relevant to this proceeding, Respondent has been a provider with the Florida Medicaid Program and has had a valid Medicaid Provider Agreement with Petitioner. Petitioner is the agency of the State of Florida charged with the responsibility of administering the Florida Medicaid Program. At all times relevant to this proceeding, Respondent was subject to all applicable federal and state laws, regulations, rules, and Medicaid Handbooks. Respondent is required to comply with the Florida Medicaid Provider General Handbook (the General Handbook). The General Handbook requires a provider to have medical documentation that justifies the necessity of services provided to a recipient. The General Handbook advises that sanctions may be imposed if appropriate documentation is not kept. Respondent is an "Assistive Care Services" provider under the Florida Medicaid Program and is required to comply with the "Assistive Care Services Coverage and Limitation Handbook" (ACS Handbook). The ACS Handbook requires that each recipient of Assistive Care Services from the Florida Medicaid Plan have a RSP, and provides, in relevant part (at Petitioner's Exhibit 7, page 39): Every [Assistive Care Services] recipient must have a service plan completed by the [Assistive Care Services] service provider. . . . The ALF [is] responsible for ensuring the service plan is developed and implemented. The ACS Handbook further requires (at Petitioner's Exhibit 7, page 40): The Resident Service Plan for Assistive Care Services (AHCA-Med Serv [sic] Form 036) must be completed within 15 days after the initial health assessment or annual assessment, be in writing, and based on information contained in the health assessment. . . . The ACS handbook further provides (at Petitioner's Exhibit 7, page 40), that both the recipient (or the recipient's guardian or designated representative) and the ALF administrator (or the person designated in writing by the administrator) must sign and date the RSP. The RSP is considered complete as of the last date signed by either party. The provider (in this case Respondent) is responsible for timely completing the RSP for each Medicaid recipient in its facility. Inspector Marie Josue conducted an on-site visit to Respondent's premises on February 1, 2011. At the time of that inspection, Respondent reviewed a sample of ten RSPs for ten residents who received Assistive Care Services from the Florida Medicaid Program. Two of those ten RSPs had been timely signed and dated by the resident (or the resident's guardian or designee) and by Respondent's administrator (or the administrator's designee). The remaining eight RSPs had been timely signed and dated by the resident (or the resident's guardian or designee), but each had not been signed or dated by Respondent's facility administrator (or the administrator's written designee). Each RSP pre-dated February 1, 2011, by more than 15 days. The respective health assessments that formed the basis for each RSP occurred between March 23 and December 25, 2010. Respondent subsequently provided Ms. Josue with certain records that she had requested, including copies of the eight RSPs at issue in this proceeding. When she reviewed those records, Ms. Josue discovered that Respondent's administrator had signed and dated each previously unsigned RSP on February 1, 2011. Those signings by the administrator were untimely. Ms. Josue forwarded the results of her investigation to Mr. Dozier with a recommendation that Respondent be sanctioned for violating the provisions of section 409.913(15)(e), Florida Statutes, by the imposition of a $1,000.00 fine for each of the eight violations pursuant to Florida Administrative Code Rule 59G-9.070(7)(e). When she made her recommendation, Ms. Josue understood that the cited rule required a minimum fine of $1,000.00 per violation. Mr. Dozier accepted that recommendation and prepared the agency action letter dated March 14, 2011. Mr. Dozier consulted with two of his fellow administrators before concluding that the fine recommended by Ms. Josue was appropriate. He testified that he could have charged Respondent with violating section violating section 409.913(15)(d), which could have resulted in an administrative fine in the amount of $20,000.001/ Mr. Dozier considered an administrative fine in the amount of $8,000.00 to be more appropriate. Based on services provided to Medicaid patients pursuant to approved RSPs, Respondent submits claims to the Florida totaling between $6,450.00 and $9,200.00 per month. Petitioner routinely pays those claims. Each RSP at issue in this proceeding complied with the ACS Handbook except for the failure of the facility administrator (or designee) to timely sign the eight RSPs. RSPS are the guides to the services that will be provided by Respondent and reimbursed by the Medicaid Program by Petitioner. The requirement that the administrator (or designee) sign each plan is an effort to combat fraud. There was no evidence that the failure to sign the eight plans at issue in this proceeding was more than an error. Specifically, there was no evidence of fraud. There was no allegation that the lack of the administrator's signature on the eight plans at issue had any effect on the care provided to the eight Medicaid patients. Ms. Pace has been Respondent's administrator for over 13 years. Ms. Pace is familiar with RSPs and the rules and regulations governing the Florida Medicaid Program. Ms. Pace knew that the RSPs must be completed within 15 days of the assessment by a physician. Ms. Pace knew that the patient (or designee) and the administrator (or designee) must sign the RSP for it to be complete. Ms. Pace acknowledged that the eight RSPs at issue in this proceeding were not signed by anyone on behalf of the provider until February 1, 2010. Ms. Pace had designated a subordinate to sign the eight PSAs at issue in this proceeding on behalf of the provider. She had no explanation why those RSPs were not timely signed by anyone on behalf of the provider.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Agency for Health Care Administration enter a final order finding La Hacienda Gardens, LLC, guilty of the eight violations of section 409.913(15)(e) alleged in the agency action letter dated March 14, 2011. It is further recommended that the final order impose administrative fines in the amount of $1,000.00 per violation for a total of $8,000.00. S DONE AND ENTERED this 1st day of February, 2012, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON 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 1st day of February, 2012.
The Issue Whether Respondent failed to comply with several requirements set forth in the Florida Medicaid Assistive Care Services Coverage and Limitations Handbook, thereby incurring a $15,000 fine according to Florida Administrative Code Rule 59G- 9.070(7)(e).
Findings Of Fact Embassy is an assisted living facility that provides assistive care services, and was enrolled as a provider in the Florida Medicaid program at all times pertinent to the instant case. AHCA is the state agency charged with the administration of the Medicaid program in Florida. Within AHCA is the Bureau of Medicaid Program Integrity (MPI), whose duty is to ensure the integrity of the Medicaid program by conducting audits of claims and by investigating providers to ensure compliance with all requirements of the Medicaid program. At all relevant times, Embassy has been subject to a Medicaid Provider Agreement. Pursuant to the agreement, Embassy agreed to comply with all federal, state, and local laws, including rules, regulations, and statements of policy applicable to the Medicaid program. Embassy also agreed to comply with AHCA's Medicaid handbooks. The Medicaid Provider Agreement includes the requirement that providers keep, maintain, and make available in a systemic and orderly manner all medical and Medicaid-related records as AHCA requires. On December 6, 2011, AHCA conducted a site visit at Embassy's facility. In a letter dated February 8, 2012, Embassy was notified that a fine of $15,000 was being assessed. The letter read as follows: In accordance with Section 409.913, Florida Statutes (F.S.), and Rule 59G-9.070, Florida Administrative Code (F.A.C.), the Agency for Health Care Administration (Agency), shall apply sanctions for violations of federal and state laws, including the failure to maintain a Resident Service Plan for Assistive Care Services within fifteen (15) days of a Resident Health Assessment for Assisted Living Facilities for Medicaid consumers P.A., D.B., D.D., R.E., M.G., F.G., P.N., K.T., E.V., and G.W., the failure to maintain a complete Resident Health Assessment for Assisted Living Facilities for Medicaid consumers D.B., M.G., and F.G., the failure to maintain a physician statement indicating that employee M.J.D. is free of communicable diseases, the failure to maintain current tuberculosis skin test results for employees M.J.D., E.J., and B.R., and failure to maintain current Level II background screening results for employees E.D., M.J.D., J.R., and B.R. A review of the recipient files revealed that service plans were missing in ten files. Service plans are required for each recipient, and they must be signed or provided within 15 days of the annual health assessment, or within 15 days of an assessment that causes a significant change in the recipient's condition. Embassy admitted at the final hearing that ten recipient files did not contain service plans. The documentation provided also did not contain a Level II Background Screening for four Embassy employees; these screenings must be conducted every five years. Embassy admitted that the required background screenings were conducted on December 16, 2011-- after the site visit, and after they had expired. Lastly, the documentation provided during the site visit did not contain tuberculosis screening results for three employees. Two of those employee files also did not contain the Level II Background Screenings as noted above; one employee file was only missing the tuberculosis screening. The Agency properly imposed sanctions for each of the fifteen violations of Medicaid policy; that is: ten recipient files that did not contain service plans, four employee files that did not contain a Level II background screening and therefore were not maintained properly for inspection, and one employee file that did not contain a tuberculosis screening. There is no evidence establishing that Embassy has been previously charged with, or been determined to have committed, any violation of Medicaid law.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that pursuant to Florida Administrative Code Rule 59G-9.070(7)(e), Respondent should be fined a total of $15,000 for 15 violations of Florida's Medicaid laws. DONE AND ENTERED this 31st day of January, 2013, in Tallahassee, Leon County, Florida. S JESSICA E. VARN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 31st day of January, 2013.
The Issue Whether Petitioner is entitled to an award of attorney's fees against Respondent pursuant to Section 57.111, Florida Statutes.
Findings Of Fact Petitioner was a prevailing small business party in DOAH Case 93-4194. Petitioner timely applied for an award of attorney's fees and costs pursuant to Section 57.111, Florida Statutes. The statutory cap of $15,000 is a reasonable amount for the award should it be concluded that Petitioner is entitled to fees and costs. In DOAH Case 93-4194, the Petitioner successfully challenged the Respondent's action in temporarily withholding all of Petitioner's payments under the medicaid program. John Whiddon, the Chief of the Florida Medicaid Program Integrity at that time, made the decision to withhold the payments to Petitioner. The information which triggered Mr. Whiddon's decision was a letter from John G. Morris, Jr., who was director of the Medicaid Fraud Control Unit. Mr. Morris advised that ". . . there is reliable evidence that the [Petitioner] billed for home health care services that were not provided and this investigation will be referred for criminal prosecution". The provisions of 42 CFR 455.23 authorize a State Medicaid agency such as the Respondent to withhold Medicaid payments, in whole or in part, upon receipt of the State agency of ". . . reliable evidence that the circumstances giving rise to the need for a withholding of payments involve fraud or willful misrepresentation under the Medicaid program." In DOAH Case 93-4194, it was concluded that Respondent had failed to establish that it had "reliable evidence" to withhold Petitioner's Medicaid payments. It was further found that even if Respondent had such reliable evidence, it could not withhold all of Petitioner's payments unless it proceeded pursuant to Section 120.59(3), Florida Statutes. Absent such emergency order pursuant to Section 120.59(3), Florida Statutes, it was concluded that any withholding would be subject to the following limitations on the withholding of Medicaid payments contained in Section 409.913(17), Florida Statutes: (17) The department may withhold Medicaid payments to a provider, up to the amount of the alleged overpayment, pending completion of an investigation under this section if it has reasonable cause to believe that the provider has committed one or more violations in relation to such payments. With the exception of providers terminated under the provisions of s. 120.59(3), in which case all payments shall be immediately terminated, the department may withhold payments under this provision, the monthly Medicaid payment may not be reduced by more than 10 percent, and the payments withheld must be paid to the provider within 60 days with interest at the rate of 10 percent a year upon determining that no such violation has occurred. If the amount of the alleged overpayment is in excess of $75,000, the department may reduce the Medicaid payments up to $25,000 per month. The Recommended Order in DOAH Case 93-4194 was adopted in toto by Respondent as a Final Order on January 28, 1994. The Medicaid Program Integrity is responsible for the oversight and regulatory aspect of the Florida Medicaid Program. Program Integrity is a part of the Agency for Health Care Administration and was formerly a part of the Department of Health and Rehabilitative Services. The Medicaid Fraud Control Unit (MFCU) is a part of the Office of the Auditor General. The MFCU is responsible for investigating abuse and criminal fraud pertaining to the medicaid program. Federal regulations require that Program Integrity and MFCU be totally separate and apart from each other. MFCU and Program Integrity operate under a memorandum of agreement which allows them to conduct separate investigations. When MFCU advises Program Integrity that it is investigating a Medicaid provider, Program Integrity routinely stops any investigation it may have started so as not to jeopardize the criminal investigation by the MFCU. Program Integrity is not provided any information about MFCU's criminal investigation until certain kinds of actions have occurred or when MFCU desires certain support. Mr. Whiddon testified that Program Integrity routinely takes administrative action against a Medicaid provider when it learns that MFCU is conducting a criminal investigation against that provider. Mr. Whiddon also testified that information received by Program Integrity from MFCU has historically proven to reliable. Mr. Whiddon did not testify as to the nature of the administrative action that is routinely taken when Program Integrity learns that MFCU is conducting a criminal investigation. There was no evidence as to the rules or statutes, other than a reference to 42 CFR 455.23, upon which Program Integrity bases such administrative actions. Based upon information from the Medicaid claims processing subsystem and the information from MFCU, Mr. Whiddon had reason to suspect that substantial sums were being paid to Petitioner for services for which there was no entitlement. The Petitioner was receiving approximately $28,900 per week from Medicaid when it was decided to temporarily withhold Medicaid payments. After the receipt of the MFCU letter, Mr. Whiddon believed something had to be done and began to review the options that he believed were available to him. Mr. Whiddon concluded that the most appropriate remedy was to withhold Medicaid payments pursuant to 42 CFR 455.23, which provides for a hearing at which the Petitioner could submit information that would justify its billings. Mr. Whiddon did not believe at the time he decided to temporarily withhold Petitioner's Medicaid payments that the issue was one of an overpayment. He also did not believe that it would be appropriate to issue an immediate final order pursuant to Section 120.59(3), Florida Statutes, because of the limited information available to him. Respondent failed to establish that it had reliable evidence to temporarily withhold all of Petitioner's Medicaid payments.
The Issue Whether the Agency for Health Care Administration (Agency or Petitioner) is entitled to recover from Ideal Pugh, Sr., d/b/a Services on Time, LLC (Respondent), alleged Medicaid overpayments, administrative fines, and investigative, legal, and expert witness costs.
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, Ideal Pugh, Sr., d/b/a Services on Time, LLC: To repay the sum of $563,073.76, for overpayments on claims that did not comply with the requirements of Medicaid laws, rules, and provider handbooks; To pay interest on the sum of $563,073.76 at the rate of ten percent per annum from the date of the overpayment determination; To pay a fine of $1,000 for failure to furnish all Medicaid-related records within the requested timeframe; To pay a fine of $1,500 for violations of the requirements of Medicaid laws, rules, and provider handbooks; and To pay allowable costs pursuant to subsection 409.913(23)(a), Florida Statutes. If a disputed issue of material fact arises regarding the appropriate amount of those costs, the matter may be referred back to DOAH for a further recommendation regarding costs. DONE AND ENTERED this 31st day of May, 2012, in Tallahassee, Leon County, Florida. S JAMES H. PETERSON, III Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 31st day of May, 2012.
