The Issue The issue is whether the Respondent is guilty of the allegations contained in the Administrative Complaints and, if so, what disciplinary actions should be taken against him, if any.
Findings Of Fact Petitioner, Department of Professional Regulation, is the state agency charged with regulating the practice of medicine pursuant to Section 20.30, Florida Statutes, and Chapters 455 and 458, Florida Statutes. Respondent, David M. Kenton, M.D., was and is at all times material a physician licensed in the State of Florida, having been issued license number ME 0037023. Dr. Kenton's office address is 1701 West Hillsborough Boulevard, Suite 101, Deerfield Beach, Florida. Mobile Health Corporation is a corporation organized pursuant to the laws of the State of Florida. Factual Background Mobile Health Corporation operates what is known as a multiphasic health testing center. This facility is licensed by the Florida Department of Health and Rehabilitative Services (HRS) pursuant to the Florida Multiphasic Health Testing Center Law, Section 483.28, et. seq., Florida Statutes (1989). A multiphasic health testing center is defined in the Florida Statutes as a fixed or mobile facility where specimens are taken from the human body for delivery to registered clinical laboratories for analysis and where certain measurements such as height and weight determinations, blood pressure determinations, limited audio and visual tests, and electrocardiograms are made, Section 483.288, Florida Statutes (1989). At all times material, Mobile Health Corporation (Mobile Health) was licensed by the Department of Health and Rehabilitative Services pursuant to License Number 00163, effective June 30, 1989. Pursuant to its license with HRS, Mobile Health was authorized to provide certain diagnostic tests which included carotid doppler blood flow analysis, heart echocardiography, ultrasounds, mammography, and clinical laboratory tests. The president of Mobile Health was Christine Byrum. As president, she had the responsibilities to provide for the day- to-day operations and management of the business, and the duties incident to management, marketing, and operations of the company. Dr. Kenton was at all times material the vice president and treasurer of Mobile Health Corporation, and had employment responsibilities as the medical director for the corporation. Dr. Kenton was responsible for assuring the proper clinical operation of Mobile Health. A copy of Dr. Kenton's job description was attached to the Amended Stipulated Facts as Exhibit A. It states: GENERAL STATEMENT With broad general direction, he/she will perform administrative duties for the mobile test unit. He/She is responsible for directing work methods, quality control of procedures performed and interpretation. DUTIES: Is responsible for quality of examination performed and the quality of interpretation of studies. Will keep abreast of new procedures, equipment, products and methods, will review and express an opinion of new equipment evaluation and applications. Evaluates site problems relating to quality control, staffing problems, work method procedures, safety and any medical and/or legal interests. Will mediate problems of the Physician staff, such as salary adjustments, discipline and medical/legal matters. Dr. Kenton, as part of his duties as medical director, signed all requests by Mobile Health for analysis to be conducted by clinical laboratories with respect to specimens collected at the center. Dr. Kenton reviewed the clinical laboratory analysis, together with the results of any measurements or other testing procedures performed at Mobile Health. Dr. Kenton read, interpreted, and signed all those results before they were sent by Mobile Health to its patients. Dr. Kenton was responsible to supervise the quality of laboratories used for clinical laboratory tests of patients of Mobile Health. During all times material, all such tests were analyzed by a clinical laboratory licensed by the Department of Health and Rehabilitative Services. As medical director, Dr. Kenton was also responsible for the quality of the studies performed at Mobile Health, and the quality of the interpretation of medical studies. Dr. Kenton is a cardiologist, and was personally responsible for interpreting the echocardiograms performed by Mobile Health. A radiologist was under contract to Mobile Health to interpret the mammogram and ultrasound studies. At all times material, these studies were interpreted by a board certified radiologist. Dr. Kenton performed his duties as Medical Director of Mobile Health in conformance with the provisions of Section 483.308, Florida Statutes (1989). Pursuant to its license with HRS, Mobile Health was authorized by Florida's Multiphasic Health Testing Center Law to perform all medical tests which were performed at Mobile Health Corporation. Florida's Multiphasic Health Testing Center Law permitted each of these tests to be conducted by Mobile Health without a prior order from a physician. The Department of Health and Rehabilitative Services was responsible to inspect at least annually the premises and operations of all multiphasic health testing centers. Mobile Health had been subject to inspections by HRS. Mobile Health was found to be in compliance with the Florida law applicable to multiphasic health testing centers during an inspection just prior to the incidents in question. A copy of the HRS recommendation for licensure pursuant to an HRS survey conducted on June 7, 1989, disclosing "no deficiencies" was attached to the Amended Stipulated Facts as Exhibit B. The Advertisements Which Are the Subject of the Administrative Complaint On July 9, 1989, Mobile Health Corporation published an advertisement in the Tallahassee Democrat newspaper marketing its services, and advising readers that Mobile Health would be providing medical testing services in Tallahassee on July 21, 1989. On August 28, 1989, Mobile Health Corporation published an advertisement in the Panama City New Herald marketing its services, and advising residents in Panama City, Florida, that Mobile Health would be providing medical testing in Panama City on September 1, 1989. Mobile Health hired a professional advertising agency for the purpose of creating these advertisements. Dr. Kenton did not select the advertising agency, and did not advise the advertising agency pertaining to the substance or contents of the published advertisements which are the subject of these Complaints. Both the July 9, 1989, advertisement in Tallahassee and the August 29, 1989, advertisement in Panama City contained medical claims that were false, deceptive or misleading. The advertisements state in part: Test 2 - Heart Echocardiography with Doppler THIS TEST DETECTS HEART OR VALVE MALFUNCTIONS THAT COULD LEAD TO HEART ATTACKS DUE TO FATTY BLOCKAGES IN THE CORONARY ARTERIES. It is a generally accepted principle of medical practice that echocardiography has a limited role in the screening of patients for coronary artery disease because this test cannot always evaluate the presence or absence of fatty blockages. Furthermore, patients with significant coronary artery disease who have not had a prior myocardial infarction can have a normal echocardiogram. The advertisements also state in part: Test 3 - Ultrasound Screen for Prostate Cancer. THIS TEST DETECTS THE FOURTH LEADING CAUSE OF CANCER IN MEN. This safe, painless and noninvasive tests take less than 20 minutes. Mobile Health used only Suprapubic Ultrasound in its screening of patients for prostate cancer; it did not utilize Transrectal Ultrasound. It is a generally accepted principle of medical practice that Suprapubic Ultrasound is not effective in the screening of patients for prostate cancer because this test can not detect anything but the largest, most advanced cases of prostate cancer. These advertisements identified Mobile Health by name and did not identify Dr. Kenton. The advertisements contained the toll free phone number of Mobile Health. This phone number was not the phone number of Dr. Kenton's office. Although Dr. Kenton was aware generally that advertisements were being placed by Mobile Health, he did not review the advertisements which were published by Mobile Health in the Tallahassee Democrat on July 9, 1989, in the Panama City News Herald on August 28, 1989, prior to their publication. The advertisements contained a legal disclaimer as required by Section 483.305, Florida Statutes, which stated: Health screening tests may or may not alert you and your doctor to serious medical problems and are not intended to be a substitute for a physician's examination. Rule 21M-24.001(2), Florida Administrative Code, provides that: No physician shall disseminate or cause the dissemination of any advertisement or adver- tising which is in any way false, deceptive, or misleading. Any advertisement shall be deemed by the Board to be false, deceptive, or misleading if it . . . [c]ontains a mis- representation of facts . . . [m]akes only a partial disclosure of relevant facts . . . [c]reates false or unjustified expectations of beneficial assistance . . . [or] . . . [a]ppeals primarily to a layperson's fears, ignorance, or anxieties regarding his state of well being . . . [or] . . . [f]ails to con- spicuously identify the physician by name in the advertisement. There were few responses by the public to both of these advertisements. No patient has indicated any harm as a result of the advertisements or complained to DPR. The advertisements were discontinued voluntarily by Mobile Health after the deceptive nature of the advertisements were brought to its attention. There is no evidence that Dr. Kenton participated in disseminating the advertisements. Dr. Kenton did not profit as a result of these advertisements. Soon after Petitioner began its investigation into this matter, Dr. Kenton resigned as the Medical Director of Mobile Health. Mobile Health soon thereafter concluded its business operations and allowed its license with HRS to lapse. Dr. Kenton received his medical degree in 1979 from the State University of New York, Buffalo School of Medicine. He completed his internship at Jackson Memorial Hospital/University of Miami School of Medicine in 1980, and then completed his residency at the same institution in June 1982. Dr. Kenton completed a fellowship in cardiology at the Georgetown University Medical School in June 1984. Dr. Kenton is a young physician with an unblemished record. He has never previously been the subject of a DPR investigation, and has never been sued for medical malpractice. Dr. Kenton has staff privileges at several hospitals which include North Broward Medical Center and North Ridge General Hospital in Fort Lauderdale; West Boca Medical Center in Boca Raton; and Delray Community Hospital and Pinecrest Hospital in Delray Beach. The issuance of sanctions such as a written reprimand, an order of probation, or a license suspension may affect Dr. Kenton in his renewal of staff privileges at his existing hospitals, and may have adverse consequences if Dr. Kenton should apply for staff privileges at hospitals to which he is not currently on staff. The stigma of a reprimand, probation, or suspension may also adversely effect his professional standing in the local medical community and may have significant financial consequences upon Dr. Kenton. Should Dr. Kenton be found to have violated Chapter 458, Florida Statutes (1989), appropriate discipline in this matter should not exceed the imposition of a $2,500 administrative fine, plus an order requiring Dr. Kenton to cease and desist from disseminating misleading advertisements in the future, and a restriction of his medical license to prohibit him from operating any type of multiphasic mobile testing service, as defined in Section 483.288, Florida Statutes (1991), for a period of five years from the date of final action in this matter.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding Dr. Kenton not guilty of the allegations found in the Administrative Complaints, and dismissing those Administrative Complaints. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 2nd day of June, 1992. WILLIAM R. DORSEY, JR. 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 2nd day of June 1992. 1/Subsequently an Amended Administrative Complaint was filed on February 7, 1990. The amendment only deleted a reference to Case No. 89-05880 which had been included in the caption of the original administrative complaint by mistake. COPIES FURNISHED: Randolph P. Collette, Esquire Department of Professional Regulation Suite 60 1940 North Monroe Street Tallahassee, Florida 32399-0792 Mark A. Dresnick, Esquire Grand Bay Plaza - Suite 201 2665 South Bayshore Drive Miami, Florida 33133 Dorothy Faircloth Executive Director Board of Medicine Department of Professional Regulation 1940 North Monroe Street Suite 60 Tallahassee, Florida 32399-0792 Jack McRay General Counsel Department of Professional Regulation 1940 North Monroe Street Suite 60 Tallahassee, Florida 32399-0792
Findings Of Fact On or about August 15, 1988, Respondent received a complaint from Walt Disney World questioning the "type[,] frequency and cost" of treatment that Petitioner was providing to a patient. Petitioner is employed as a physician by the Central Florida Health Center and was providing treatment to the patientin response to allergic-type complaints. As the letter acknowledges, Walt Disney World had denied the patient's claim for Workers Compensation benefits. By December 11, 1989, Respondent's investigator had completed an final investigative report on the matter. The cover sheet of the report notes that Petitioner had not responded to the charges as of December 4, 1989. The cover sheet also notes that the Social Security Administration had determined, by decision dated September 9, 1989, that the patient had suffered a "disability" since July 22, 1987. The cover sheet cites from the decision as follows: "the medical evidence establishes that the claimant has respiratory allergies, especially to molds . . ." and "the claimant's allegations of respiratory distress, nausea, anxiousness, rapid heartbeat, confusion, headaches, and loss of coordination and strength are supported by the objective and clinical laboratory findings of record and are credible." Summarizing an interview on October 26, 1989, with the manager of another allergy clinic in the Orlando area, the investigative report states that the manager stated that fee schedule for the Central Florida Health Center listed fees for patient evaluation that were "high" and for interdermal tests that were "excessive." The investigative file accompanying the investigative report contains numerous documents relating to the patient and his diagnoses and treatments. One document appears to be an independent medical examination referenced by WaltDisney World in its letter to Respondent dated August 15, 1988. By letter dated May 16, 1988, Richard F. Lockey, M.D., of the Allergy, Asthma and Immunology Associates of Tampa Bay, reported the results of his examination of the patient on April 5 and 22, 1988. Dr. Lockey found that the patient "does not have nor suffer from any allergic disease." Dr. Lockey found, among other diagnoses, "vasomotor rhinitis with possible allergic rhinitis." Expressly disagreeing with Petitioner's "impression that [the patient] has multiple problems secondary to his environment at Disneyworld," Dr. Lockey recommended that the patient could return to work without hazard to his health and needed psychiatric counselling to reassure him that he is physically healthy. Dr. Lockey's letter accompanies a complete history that he took of the patient. By letter dated December 1, 1989, and also contained in the investigative file, Diane S. Storey, D.O., employed with Petitioner at the Central Florida Health Center, explained why the only appropriate treatment for the patient was immunotherapy for long-term exposure to mold byproducts. The letter refers to the corroborating opinion of Douglas H. Sandberg, M.D. Dr. Sandberg's undated report, which is also contained in the investigative file, includes a comprehensive history. Dr. Sandberg, who is a Professor of Pediatrics and Director of the Division of Gastroenterology and Nutrition at the University of Miami Children's Hospital Center, concludes thatPetitioner has "an excellent grasp of [the patient's] overall problems and should be able to help him significantly and to have him back to work in a few weeks." The letter also states: "Testing and treatment with [Petitioner] has shown that [the patient] does have environmentally triggered illness or complex allergy." By memorandum to the probable cause panel dated February 23, 1990, Respondent noted the allegations that Petitioner violated Section 458.331(1)(t) and (n). The memorandum recommends that the case is "legally sufficient and should be reviewed by an expert to determine whether [Petitioner] operated within the standard of care, if there is a pattern of excessive and unnecessary testing and if he over-charged for his services." The probable cause panel agreed to refer the file to an expert. By letter dated June 18, 1990, Respondent requested Michael P. Pacin, M.D., to offer an expert opinion as to several questions concerning Petitioner's diagnosis and treatment of the patient. Respondent gave Dr. Pacin the entire investigative file to review. By letter dated September 13, 1990, Dr. Pacin, who is a board- certified internist and immunologist, noted the differing opinions of Drs. Lockey and Sandberg. The letter states: there can be more than one opinion regarding treating allergy patients. Dr. Lockey was trained in the same manner as I was, and I agree almost completely with everything thathe has said regarding [the patient's] treatment. On the other hand, Dr. Sandberg's views are quite contrary to mine, although they are along the lines of those which [Petitioner] has followed. [Petitioner] and Dr. Sandberg practice what is known as environmental medicine, a field which is quite controversial and not very well substantiated in the medical literature. I believe [the patient] is a very sick man; however, I do not believe, based upon the information given to me, that much of his problem is due to allergy. Most of the testing and treatment provided to him by [Petitioner] was probably unnecessary, but what surprises me is the fact that [Petitioner] is a psychiatrist who practices allergy and seems possibly to have misdiagnosed a patient with a psychiatric problem as having an allergy problem. The letter describes environmental medicine, which Petitioner practices, as a very unsubstantiated theory. These patients, as in the case of [the patient], have very subjective symptoms, some of which can be explained by other medical problems and some of which cannot be explained medically but are quite real to the patient and do, indeed, contribute to their disability. It is quite hard to define what makes them ill and to know how to treat them. Responding to the specific questions asked, the letter states: I do not feel that the [patient's] condition was adequately assessed. Based upon Dr. Lockey's assessment, I, too, feel that the [patient] is suffering from multiple psychiatric problems and that any allergy problems he has are minimal and not contributing to his overall problem. . . . I believe [Petitioner] did not treat the patient in an appropriate manner--i.e., all of the allergy testing and treatment was probably not necessary, and even if they were, they were far in excess of what would be appropriate for a patient who did haveallergy problems. . . . I do believe [the insurance company was] exploited for financial gain by [Petitioner]. Even though [Petitioner] has continued to provide medical care to the patient at no cost, I think this is only being done to cover up the exploitation that has preceded it. . . . I do not believe that [written medical records kept by Petitioner] justify the course of treatment of the patient. The test results were far from conclusive, especially based on the patient's history, to warrant such an extensive treatment regime for allergies. Dr. Pacin's letter responds to the concluding question posed by Respondent's letter as follows: [Petitioner] did not meet the "standard of care" as I and my colleagues practice allergy. I believe his diagnosis was wrong and the treatment, therefore, also was wrong. I believe the treatment would have been wrong even if the diagnosis had been correct, as it was overdone and the patient was being exploited for financial gain. This patient may have had some minimal allergy problems; however, he needs a complete psychiatric evaluation to better have an idea [sic] of what his true medical problems are. The fact that [Petitioner] is a psychiatrist tells me that this case should also be evaluated by a psychiatrist to see if he meets the "standard of care" in the field of psychiatry. It seems that [Petitioner] has missed the psychiatric diagnosis or possibly is treating the patient for allergies because that diagnosis gave him the opportunity to charge for services which would provide a greater cash flow. The only justification that I could find for [Petitioner's] deviating from the standard of care was the fact that another, rather eminent physician agreed with his diagnosis and treatment. However, as I stated above, this is due to the fact that Dr. Sandberg, as well as [Petitioner], seemed to be practicing in the very controversial field known as clinical ecology [also known as environmental medicine]. By letter dated January 30, 1991, Respondentrequested Dr. Pacin to elaborate upon: those factors which lead you to believe that the patient was suffering from multiple psychiatric problems and that any allergy problems were minimal[;] . . . which tests and treatment performed by [Petitioner] were either unnecessary or "far in excess of what would be appropriate for a patient who did have allergy problems"[;] . . . which medications were inappropriate for this patient and whether the quantities given were also inappropriate[; and] . . . what test results would have justified this treatment and . . . [what] tests not performed by [Petitioner] . . . could have definitely established if the patient was actually suffering from these allergies? By letter dated February 12, 1991, Dr. Pacin responded to these questions. The letter states that he could not say that the patient's symptoms were psychiatric and had thus recommended a psychiatric evaluation. Dr. Pacin explained that he had based his finding of "excess treatment" upon the billings and services that he had reviewed. The letter states that the patient did not suffer from sufficiently severe allergy problems to warrant immunotherapy. As to the last question, Dr. Pacin opined that "missing symptoms," not missing test results, failed to "warrant allergy testing and allergy immunotherapy." The case was considered by the probable cause panel on May 4, 1991, with a recommendation from Respondent that probable cause be found. Respondent's attorney adequately summarized Dr. Pacin's findings. Expressly relying upon Dr. Pacin's report, one panel member moved to find probable cause and file an Administrative Complaint alleging violations of 458.331(1)(t), (m), and (n). The panel approved the motionunanimously. Pursuant to the probable cause finding, Respondent filed an Administrative Complaint on May 16, 1991, in DOAH Case No. 91-4068. Corresponding to the violations cited by the probable cause panel, the Administrative Complaint alleges that Petitioner failed to practice medicine in accordance with a reasonable standard of care due to the misdiagnosis of a patient, failed to keep medical records justifying the course of treatment of a patient, and exploited a patient for financial gain. On November 6, 1991, Respondent filed a Notice of Voluntary Dismissal, and DOAH Case No. 91-4068 was closed by Order Closing File entered November 13, 1991. The opinion of Dr. Pacin adequately addressed the differing schools and training of Petitioner and Dr. Sandberg, on the one hand, and Drs. Lockey and Pacin, on the other hand. After doing so, Dr. Pacin identified clearly and unequivocally what he opined were deficiencies in Petitioner's diagnosis and, in particular, treatment of the patient. There was a reasonable basis for Dr. Pacin's opinions. Other evidence existed concerning the possible unreasonableness of the fee schedule. Although Respondent might anticipate some difficulty overcoming by clear and convincing evidence what may be a legitimate difference of professional opinion concerning diagnosis and treatment, Respondent had a reasonable basis in law and fact for filing the Administrative Complaint.
The Issue 1) Whether Petitioner is entitled to an award of attorney's fees and costs pursuant to Section 57.111, Florida Statutes (2002)1/; and 2) Whether Respondent is entitled to an award of attorney's fees and costs pursuant to Section 57.105, Florida Statutes.
Findings Of Fact The Agency is the state agency with legislative authority to perform Medicaid audits and collect overpayments pursuant to Section 409.913, Florida Statutes. The Agency conducted an audit of Petitioner’s business resulting in a Final Agency Audit Report dated October 16, 2002, which determined that Petitioner was liable for an overpayment of Medicaid claims for services provided by Petitioner to Medicaid recipients in the amount of $82,385.98 for the audit period of July 1, 1998, through May 31, 2000. In a joint prehearing stipulation, the parties stipulated that the $82,385.98 amount had been reduced to $70,470.56 as a result of documentation provided by Petitioner to Respondent. Petitioner timely challenged the Final Agency Audit Report and filed a Petition for Formal Hearing. Pursuant thereto, a formal hearing was held on March 3 and 4, 2003. The Recommended Order, which was issued on June 2, 2003, recommended that the Agency enter a final order sustaining the Final Agency Audit Report, in part, recalculating the amount of overpayment consistent with the Recommended Order and requiring Petitioner to repay overpayments in the amount determined by the recalculation. Petitioner prevailed on two of the three issues that were the subject matter of the case. On February 5, 2004, a Final Order was issued by the Agency adopting the findings of fact and conclusions of law set forth in the Recommended Order. On July 19, 2004, a Corrected Final Order was issued by the Agency.2/ On April 2, 2004, Petitioner filed a motion for award of attorney's fees and costs (Motion) with supporting affidavits. In the Motion, Petitioner sought relief under both the Florida Equal Access to Justice Act, Section 57.111, Florida Statutes, as well as pursuant to Section 57.105, Florida Statutes (2003). The Agency opposed the Motion and filed what is, in essence, a cross motion for attorney's fees and costs pursuant to Section 57.105, Florida Statutes (2003). During the telephone pre-hearing conference, Petitioner abandoned its argument regarding Section 57.105, Florida Statutes. Accordingly, Petitioner’s Motion is limited to Section 57.111, Florida Statutes (2003). Petitioner seeks attorney's fees in the amount of $21,759.17 and costs in the amount of $1,992.92. The attorney’s fees in the amount of $21,759.17 is the amount that represents the time spent on the two issues upon which Petitioner prevailed in the case. The Agency seeks fees pursuant to Section 57.105, Florida Statutes (2003), in the amount of $17,475 and costs in the amount of $1,849.97. Mobile Optical is a corporation with its principal office in Florida. At the time the underlying action was initiated by the Agency in October 2002, Mobile Optical had a net worth of less than $2 million. It had fewer then 25 employees. Accordingly, it is a small business party for purposes of Subsection 57.111(4)(a), Florida Statutes. On or about August 28, 2000, Petitioner was provided a Notice to Medicaid Provider Initiation of Audit. On April 18, 2002, Petitioner was sent a Preliminary Audit Report stating that the Agency preliminarily determined that he owed an estimated $90,693.06 in Medicaid overpayments. The Agency asserted three claims of overpayment against Petitioner: Code V2780 for oversized lenses, Code V2730 for special base curves, and Code V2219 for bifocals greater than 28 mm seg width. This letter informed Petitioner that it had 30 days to provide additional information or start making payments on the amount of overpayment determined by the Agency. On April 24, 2002, Petitioner again received an Amended Preliminary Audit Report for the same amount stating it had 30 days to pay the full amount or submit additional information. On May 14, 2002, before receiving the Final Agency Audit Report, Petitioner sent a letter providing an explanation for Medicaid charges examined by the audit. Regarding the denial of oversized lens charges, the letter stated, in pertinent part: In May 1999 we received the FHCA update to the Visual Services Handbook. This was the first publication stipulating 56 mm as the minimum eye size for billing an oversized lens. As of that date we adjusted our billing to reflect this guideline. Since there was no specified eye size prior to May 1999, I consulted with two independent lens laboratories that I purchased lenses from for some guidelines. The average eye size that caused the jump from the small blank size to the next larger blank size was 53 mm. Since there was no oversize stipulation prior to May 1999, I should not be penalized for adhering to the guidelines before and after the changes were made. Despite Petitioner’s written and verbal assertions, the Agency’s Final Audit Report of October 16, 2002, continued to assert overpayments for oversized lenses. Paragraphs 20 through 25 of the Recommended Order found that Petitioner was not notified until nearly ten months into the audit period that lenses under 56 mm would not be reimbursed as oversized lenses and that as soon as Petitioner received the 1999 version of the Medicaid Visual Services Handbook which contained the 56-mm standard, Petitioner began complying with that standard. Petitioner prevailed on the issue of oversized lens for precisely the reasons asserted by Petitioner to the Agency prior to the audit being finalized and prior to the hearing. Similarly, Petitioner’s May 14, 2002, letter addressed the Agency’s audit findings for special base curves: In April 1999 we received an FHCA newsletter update to the Visual Services Handbook. Previous to this time there were no published base curve limitations. This publication stated that a provider could only bill for a special base curve in the rare condition of Anisokonia. Since receiving that publication I have not billed for a special base curve. However, please understand, in the optical industry there is a normal base curve range. When a patient’s prescription is sufficiently strong to be outside of this range there is a special base curve. It was under those circumstances that I billed for special base curves. Despite Petitioner’s written and verbal assertions, the Agency’s Final Audit Report of October 16, 2002, continued to assert overpayments for special base curves. Paragraphs 32 through 35 of the Recommended Order found that the handbooks were silent as to special base curves and that Petitioner stopped billing for the special base curves after receiving a bulletin near the end of the audit period which instructed him that claims for special base curves would no longer be reimbursed by Medicaid.
Findings Of Fact Petitioner, South Beach Pharmacy, Inc., d/b/a Southpointe Pharmacy (Southpointe), was at all times material hereto, a pharmacy located in Dade County, Florida, and a provider under the Medicaid program. Respondent, Department of Health and Rehabilitative Services (DHRS), was and is the state agency responsible for regulating the Medicaid program in Florida. Pharmacies participating in the Medicaid program are subject to routine audits, which are coordinated by the DHRS Office of Program Integrity. In early 1989 a routine audit of Southpointe was conducted by the Professional Foundation for Health Care (PFHC) at the request of DHRS. Following that audit, DHRS reasonably determined that further investigation was warranted and asked PFHC to perform an audit referred to as an "aggregate analysis." PFHC performed the aggregate analysis audit as instructed and determined that an overpayment had been made to Southpointe. The PFHC audit was submitted to and reviewed for accuracy and correctness by the Office of Program Integrity. In August 1989, DHRS took proposed final agency action against Southpointe in the form of a letter which, among other things, demanded repayment of funds alleged to have been overpaid under the Medicaid program, assessed an administrative fine against Southpointe, and terminated Southpointe from the Medicaid program for two years. That letter was revised in September 1989 to change the amount of the alleged overpayment. The alleged overpayment was challenged by Southpointe. The matter was submitted to the Division of Administrative Hearings and assigned DOAH Case No. 89-6057. At the times pertinent to this proceeding DHRS had not adopted the "aggregate analysis" methodology by rule. Instead, DHRS relied on incipient, non-rule policy and attempted, without success, to explicate its reasons for relying on this methodology. The first time the "aggregate analysis" methodology was used in an effort to determine the overpayment by Medicaid to a pharmacy was in the case of David's Pharmacy v. Department of Health and Rehabilitative Services, DOAH Case No. 88-1668 (Final Order entered September 15, 1988). The Final Order entered in the David's Pharmacy case specifically recognized that DHRS was not entitled to rely on non-rule policy in imposing sanctions against a provider because of the wording of Section 409.266(11)(g), Florida Statutes (1989), which limits the imposition of sanctions against a Medicaid provider to situations where the provider is not in compliance with the Florida Administrative Code. Further, the Final Order in the David's Pharmacy case concluded that the aggregate analysis methodology was flawed and, consequently, could not be relied upon by DHRS in determining that an overpayment had been made. Although DHRS again attempted to rely on the aggregate analysis methodology in the audit of Southpointe, DHRS had not adopted the aggregate analysis methodology as a rule (even though there were no changes in the governing statute) and it did not cure all the defects in the methodology that were specifically raised by the Final Order in David's Pharmacy. The only material change in the aggregate analysis procedure between the time of the David's Pharmacy final order and the time it was used to audit Southpointe was the elimination of the use of a Medicaid percentage applied to the quantities of audited drugs. The Recommended Order submitted by the undersigned following the formal hearing in the underlying proceeding (DOAH Case No. 89-6057) found that DHRS had not adopted the "aggregate analysis" methodology as a rule and that DHRS had not explicated its policy in attempting to rely on this non-rule policy. The Recommended Order concluded that DHRS had failed to prove any overpayment to Southpointe. The Recommended Order also found that certain data relied on by PFHC in performing the aggregate analysis was unreliable, which resulted in the amount of claimed overpayment being overstated. While DHRS was not aware that this data was unreliable, this data merely affected the amount of the overpayment. It was DHRS's continued reliance on the aggregate analysis that led DHRS to the assertion that there had been an overpayment. DHRS, by its Final Order in DOAH Case No. 89-6057, rejected many of the facts and the conclusion contained in the Recommended Order. Instead, DHRS determined that there had been an overpayment to Southpointe, demanded repayment of the alleged overpayment, imposed an administrative fine in the amount of $250.00, and suspended Southpointe as a Medicaid provider for three months. Thereafter, Southpointe appealed DHRS's Final Order to the First District Court of Appeal. The First District Court of Appeal reversed DHRS and concluded, in pertinent part, as follows: . . . Therefore, as found by the hearing officer, the Department was proceeding not under any existing rule but rather under incipient policy. That finding was based upon competent and substantial evidence, and we hold it was a gross abuse of discretion for the Department to reject that finding of fact. * * * . . . [W]e agree with the hearing officer that HRS failed in its mission to support and defend the aggregate analysis with competent and substantial evidence. In an earlier final order issued by the Department, David's Pharmacy v. Department of Health and Rehabilitative Services, 11 FALR 2935 (HRS 1988), wherein aggregate analysis was utilized for the first time, the Department found HRS had not appropriately explicated this non-rule policy by its failing to produce evidence that would establish a rational, reasonable basis for the procedure. In the instant case, despite rather pat testimony to the effect that the aggregate analysis is indeed contemplated by the rule, it was shown that HRS had not checked a single Medicaid patient to determine if the medication had been dispensed, or a single physician to see if the medication had been prescribed. Robert Peirce testified that the only thing HRS had done since David's Pharmacy, was to delete the requirement of utilizing a "percentage of Medicaid sales" from the formula. As pointed out by Southpointe, none of the other shortcomings of aggregate analysis which were identified in the David's final order were remedied by HRS at the hearing below. For example, neither a beginning nor ending inventory had been taken into consideration, and no consideration was given to whether Southpointe had acquired additional drugs to augment its inventory by means other than direct purchase from its manufacturers 1/ DHRS has failed to establish that it was substantially justified in taking action against Southpointe based on the aggregate analysis methodology. There was no evidence to show that an award of fees and costs to Southpointe would be unjust in this case. Southpointe has become obligated to pay costs and attorney's fees in excess of $15,000.00, the maximum allowable recovery under the Equal Access to Justice Act. The parties stipulated that these costs and fees are reasonable. Petitioner is a prevailing small business within the meaning of Section 57.111, Florida Statutes, and has met all conditions precedent for such an award.
The Issue Whether five employees meet the required criteria to be eligible to provide behavior analysis services; and, if not, what is the Medicaid overpayment amount Respondent owes to Petitioner.
Findings Of Fact AHCA is designated as the single state agency authorized to make payments for medical assistance and related services under Title XIX of the Social Security Act, otherwise known as the Medicaid program. See § 409.902(1), Fla. Stat. As part of its duties, AHCA oversees and administers the Florida Medicaid Program and attempts to recover Medicaid overpayments from Medicaid providers. At all times material to this case, ABA was licensed to provide healthcare services to Medicaid recipients under a contract with AHCA as a Medicaid provider. As provider number 019514000, ABA participated in the Medicaid program from November 1, 2017, through July 31, 2018 ("audit period"). AHCA's Bureau of Medicaid Program Integrity ("MPI") is the unit within AHCA that oversees the activities of Florida Medicaid providers and recipients. MPI ensures that providers abide by Medicaid laws, policies, and rules. MPI is responsible for conducting audits, investigations, and reviews to determine possible fraud, abuse, overpayment, or neglect in the Medicaid program. See § 409.913, Fla. Stat. ABA signed a provider agreement and agreed to abide by the handbook and policies. As a Medicaid provider, ABA was subject to the enacted federal and state statutes, regulations, rules, policy guidelines, and Medicaid handbooks incorporated by reference into the rule, which were in effect during the audit period. Behavior analysis is a treatment that improves the lives of those individuals with mental health conditions such as developmental and intellectual disabilities. Up until approximately 2014, behavior analysis services had been covered under the developmental disabilities waiver program. In October 2017, the Florida Medicaid Behavior Analysis Services Coverage Policy ("Handbook") was promulgated, which placed the services under the state plan, expanded the population, and detailed the eligibility categories and criteria to provide behavior analysis services. This case arose when MPI decided to audit all the Medicaid behavior analysis service providers. AHCA reviewed the employee qualifications for every enrolled behavior analysis provider. After the review, approximately 600 audit cases were opened. The Preliminary Audit and Final Audit ABA was one of the providers MPI reviewed. On December 6, 2017, MPI issued ABA a request for records seeking supporting documentation about the qualifications of employees providing behavior analysis services. ABA submitted the first set of employees' records in response to AHCA's request the same month. Karen Kinzer ("Kinzer"), investigative analyst, was assigned to oversee and conduct ABA's employee eligibility determination audit. On or about September 14, 2018, Kinzer reviewed the billing logs and requested additional employee records, which ABA then submitted. Kinzer reviewed each ABA employee and their behavior assistant qualifications based on the requirements of the Handbook. Rules applicable to the claims reviewed in this case are enumerated in the Handbook and include the following requirements in policy 3.2: Behavior assistants working under the supervision of a lead analyst and who meet one of the following: -Have a bachelor's degree from an accredited university or college in a related human services field; are employed by or under contract with a group, billing provider, or agency that provides Behavior Analysis; and, agree to become a Registered Behavior Technician credentialed by the Behavior Analyst Certification Board by January 1, 2019. -Are 18 years or older with a high school diploma or equivalent; have at least two years of experience providing direct services to recipients with mental health disorder, developmental or intellectual disabilities; and, complete 20 hours of documented in- service trainings in the treatment of mental health, developmental or intellectual disabilities, recipient rights, crisis management strategies and confidentiality. Kinzer determined that overpayments were made to ABA because numerous behavior analysis services had been performed by ineligible employees, which were not covered by Medicaid. Kinzer prepared the Preliminary Audit Report ("PAR") after reviewing ABA's employee records and conducting an audit of paid Medicaid claims for behavior analysis services to Medicaid recipients. MPI issued the PAR dated November 26, 2018. The report detailed the Medicaid policy violations, overpayment amounts, and provided ABA the opportunity to submit additional documentation for consideration. The overpayment amount totaled $1,215,281.09, and the report also notified ABA that an FAR would be issued identifying the amount of overpayment due. Each time ABA supplied additional records, MPI reviewed the supporting documentation provided from the employment files to evaluate if the employees met the minimum qualifications to perform behavior analysis services pursuant to policy 3.2. On February 11, 2019, MPI issued an Amended Preliminary Audit Report ("APAR") that reduced ABA's overpayment amount to $977,539.52. Attached to the APAR was a list of specific employees who were ineligible to perform behavioral analysis services. The list also detailed how much billing was credited to each of the ineligible employees. The APAR allowed ABA the opportunity to submit additional documentation for consideration. On April 18, 2019, AHCA concluded the audit and issued an FAR on or about April 30, 2019, alleging that Respondent was overpaid $852,043.63 for behavior analysis services that were not covered by Medicaid. The overpayment was calculated based on the determination that 20 ABA employees were ineligible according to policy 3.2 of the Handbook. The FAR included employee overpayment and claim reports as well as claim bills by ABA for the 20 ineligible employees. Also listed was the total amount for the audit period. AHCA informed ABA by the FAR that it was seeking to impose a fine of $172,908.73 and costs in the amount of $461.50 for a total amount of $1,025,413.86. An additional fine of $2,500.00 as a sanction was also included. Additionally, the FAR detailed ABA's violations in Finding 1, which stated, in pertinent part: The Florida Medicaid Provider General Handbook, page 1-2, states that only health care providers that meet the conditions of participation and eligibility requirements and are enrolled in Medicaid Behavior Analysis Services Coverage Policy, Rule 59G- 4.125, F.A.C., Section 3.0, states that providers must meet the qualifications specified in this policy in order to be reimbursed for Florida Medicaid BA [behavior analysis] services. Payments for Florida Medicaid Behavior Analysis Services rendered by an individual determined not to meet the qualifications or for whom documentation was insufficient to determine eligibility are considered an overpayment. After the April 18, 2019, FAR was issued, 15 of ABA's employees obtained their registered behavior technician ("RBT") certifications, which made them eligible under policy 3.2. AHCA reduced the number of ineligible ABA employees from 20. After the reduction, MPI concluded that five ABA employees still did not meet the minimum legal requirements to perform behavior assistant services during the audit period under policy 3.2. Employee No. 1 MPI discovered ABA violated policy by billing Medicaid $3,803.28 for behavior analysis services conducted by Erica del Sodorro Lebron Diaz ("Lebron Diaz"). Lebron Diaz's computer engineering degree failed to be in the required human services field. Additionally, she neither had an RBT certificate nor had two years' experience providing direct services to recipients with mental health disorders, developmental or intellectual disabilities ("target population"). Instead, Lebron Diaz only had one month direct service experience in 2019 as a home health aide that could be verified. Employee No. 2 MPI discovered ABA violated policy by billing Medicaid $44,737.30 for behavior analysis services conducted by Herman Chavez ("Chavez"). Chavez lacks a bachelor's degree, does not have an RBT certificate, and his work history only had nine months' work experience with the required target population, which is 15 months short of the minimum requirements of the Handbook. Employee No. 3 MPI discovered ABA violated policy by billing Medicaid $79,551.14 for behavior analysis services conducted by Mairelis Gonzalez Rodriguez ("Rodriguez"). Rodriguez lacks a bachelor's degree and has a high school diploma, but does not have an RBT certificate and does not have the two years' work experience with the required target population. Employee No. 4 MPI discovered ABA violated policy by billing Medicaid $44,737.30 for behavior analysis services conducted by Nury Grela Dominguez ("Dominguez"). Dominguez lacks a bachelor's degree and has a high school diploma, but does not have an RBT certificate. She also does not have two years of work experience with the target population. Employee No. 5 MPI found ABA violated policy by billing Medicaid $48,272.40 for behavior analysis services conducted by Yoiset Orive ("Orive"). Orive neither has a bachelor's degree nor the RBT certificate that is required with a high school diploma. Additionally, she only has 19 months' direct work experience with the target population instead of the required 24 months. Hearing At the final hearing, the parties announced and stipulated that only five ABA employees', Lebron Diaz, Chavez, Rodriguez, Dominguez, and Orive's ("disputed employees"), eligibility is contested for the determination of Medicaid overpayment in this matter. AHCA is seeking an overpayment of $207,082.92 and sanctions and costs in the amount of $2,500.00 for the disputed employees. At hearing, Jennifer Ellingsen ("Ellingsen"), AHCA's Medicaid health program analyst, testified that she was assigned ABA's case after Kinzer retired. Ellingsen worked for AHCA as an analyst on audits of Medicaid providers for 12 years. Ellingsen reevaluated the eligibility of the disputed employees. During her review, Ellingsen assessed all the records supplied by ABA. She looked at the complete employment files of the disputed employees including applications, resumes, and references. She also attempted to verify credentials by calling references when the employee files did not contain the required information. During the review, Ellingsen researched previous employers listed on the resumes to confirm periods of employment and whether work duties were with the required target population. Some letters of reference were character references, which she was not able to use toward eligibility because the letters did not relate to work history. Ellingsen also faced challenges verifying backgrounds for the disputed employees when some phone numbers were not in service, she could not find current numbers or locations for the entity listed, or people did not return her calls. Several of the employee reference letters also failed to have any notation that Respondent attempted to verify the letters. Ellingsen made numerous attempts to verify that each of the disputed employees had previously worked with the target population, but was unable to confirm the two years' direct care service for all of the disputed employees. Ellingsen credibly summarized the verification process, background research results, and concluded that each of the disputed employees were ineligible to perform behavior analysis services because they did not meet the criteria in policy 3.2. She testified that the disputed employees' ineligibility was because all five lacked college degrees in a human services- related field, none had RBT certifications, and each lacked the verifiable two years of direct care services experience with the target population, which the Handbook required. Ellingsen added up ABA's Medicaid overpayments owed from the disputed employees for a total of $207,082.92. At hearing, Robi Olmstead ("Olmstead") explained that section 409.913, Florida Statutes, and Florida Administrative Code Rule 59G-9.070(7) require that sanctions be applied in the amount of $1,000.00 per claim, which would have been over approximately $3,000,000.00 in this case. However, Olmstead testified that, in this case, AHCA implemented the cap that reduced ABA's sanctions and costs to $2,500.00. Respondent, Varinia Cabrera ("Cabrera"), ABA owner, testified that she interviewed and checked the references of all of the disputed employees. Cabrera believed that each of the disputed employees met the requirements of policy 3.2 before she hired them to perform behavior analysis services at ABA. Cabrera also maintained that since AHCA provided each of the disputed employees in question with a Medicaid Provider ID number, she believed AHCA had also validated and approved the disputed employees to work for her performing behavior analysis services. A Medicaid Provider ID number is a number assigned to employees and contractors of Medicaid providers to track and bill for claims. The provision of a Medicaid Provider ID number does not substitute for any Medicaid provider ensuring that its employees or subcontractors have the required credentials to perform the services to which they are billing.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency for Health Care Administration enter a final order directing Advanced Behavioral Association, LLC, to repay $207,082.92 for the claims found to be overpayments and $2,500.00 in sanctions and costs. DONE AND ENTERED this 20th day of November, 2019, in Tallahassee, Leon County, Florida. S JUNE C. MCKINNEY 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 November, 2019. COPIES FURNISHED: Varinia F. Cabrera, Psy.D. Advanced Behavioral Association, LLC 7925 Northwest 12th Street, Suite 118 Doral, Florida 33216-1820 (eServed) Kimberly Murray, Esquire Ryan McNeill, Esquire Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308 (eServed) Richard J. Shoop, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308 (eServed) Stefan Grow, General Counsel Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308 (eServed) Mary C. Mayhew, Secretary Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 1 Tallahassee, Florida 32308 (eServed) Shena L. Grantham, Esquire Agency for Health Care Administration Building 3, Room 3407B 2727 Mahan Drive Tallahassee, Florida 32308 (eServed) Thomas M. Hoeler, Esquire Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308 (eServed)
Conclusions THE PARTIES resolved all disputed issues and executed a settlement agreement, which is attached and incorporated by reference. The parties are directed to comply with the terms of the attached settlement agreement. Based on the foregoing, this file is hereby CLOSED. DONE AND ORDERED on this al Ve say of ecomber , 2011, in Tallahassee, Leon County, Florida. t Elizabeth whee Secretary Agency for Health Care Administration Agency for Health Care Administration vs. Infinite Personal Possibilities, Inc. Final Order (C.I. #10-9595-000) Page 1 of 3 Filed January 5, 2012 1:16 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: Gary Clarke, Esquire STERNSTEIN, RAINER & CLARKE, P.A. 411 East College Avenue Tallahassee, Florida 32301 (Via Facsimile and U.S. Mail) Tracie L. Hardin, Esquire Agency for Health Care Administration 2727 Mahan Drive Building 3, Mail Station 3 Tallahassee, Florida 32308 (Interoffice Mail) Agency for Health Care Administration Bureau of Finance and Accounting 2727 Mahan Drive Building 2, Mail Station 14 Tallahassee, Florida 32308 (Interoffice Mail) Bureau of Health Quality Assurance 2727 Mahan Drive, Mail Stop 9 Tallahassee, Florida 32308 (Interoffice Mail) Mike Blackburn, Bureau Chief Medicaid Program Integrity 2727 Mahan Drive Building 2, Mail Station 6 Tallahassee, Florida 32308 (Interoffice Mail) Eric Miller, Inspector General Medicaid Program Integrity 2727 Mahan Drive Building 2, Mail Station 6 Tallahassee, Florida 32308 (Interoffice Mail) Division of Administrative Hearings The Desoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (Via U.S. Mail) Agency for Persons with Disabilities 4030 Esplanade, Suite 380 Tallahassee, Florida 32399-0950 (Via Email Only) Agency for Health Care Administration vs. Infinite Personal Possibilities, Inc. Final Order (C.1. #10-9595-000) CERTIFICATE OF SERVICE | HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished to the above named addressees by U.S. Mail, or the method designated, on this the day of LL. pee a4 , 2011. Richard Shoop, Esquire Agency Clerk State of Florida, Agency for Health Care Administration 2727 Mahan Drive, Building #3 Tallahassee, Florida 32308 Telephone: (850) 412-3630 Agency for Health Care Administration vs. Infinite Personal Possibilities, inc. Final Order (C.I. #10-9595-000) Page 3 of 3 STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS STATE OF FLORIDA, AGENCY FOR HEALTH CARE ADMINISTRATION, Petitioner, DOAH CASE NO.: 10-2415MPI vs. CASE NO.: 10-9595-000 PROVIDER NO.: 6745806-96 INFINITE PERSONAL POSSIBILITIES, INC., Respondent. / SETTLEMENT AGREEMENT Petitioner, the STATE OF FLORIDA, AGENCY FOR HEALTH CARE ADMINISTRATION, (“AHCA” or “Agency”), and Respondent, INFINITE PERSONAL POSSIBILITIES, INC., (‘PROVIDER’), by and through the undersigned, hereby stipulate and agree as follows: 1. The parties enter into this agreement for the purpose of memorializing the resolution to this matter. 2. PROVIDER is a Medicaid provider in the State of Florida, provider number 6745806-96, and was a provider during the audit period. 3. In its Final Audit Report, dated March 31, 2010, the Agency notified PROVIDER that a review of Medicaid claims performed by the Agency’s Office of the Inspector General, Bureau of Medicaid Program Integrity (“MPI”), indicated that certain claims, in whole or in part, were inappropriately paid by Medicaid. The Agency sought repayment of this overpayment, in the amount of two hundred sixty thousand, seven hundred thirty-one dollars and two cents ($260,731.02). Additionally, the Agency applied sanctions in accordance with Sections 409.913(15), (16), and (17), Florida Agency for Health Care Administration v. Infinite Personal Possibilities, Inc. Settlement Agreement for C.1. No.: 10-9595-000 Page 1 of 7 Statutes, and Rule 59G-9.070(7), Florida Administrative Code. Specifically, the Agency assessed the following sanctions against PROVIDER: a fine in the amount of one thousand dollars ($1,000.00) for violation(s) of Rule 59G-9.070(7)(c), Florida Administrative Code; a fine in the amount of two thousand dollars ($2,000.00) for violation(s) of Rule 59G-9.070(7)(e), Florida Administrative Code. The total amount due was two hundred sixty-three thousand, seven hundred thirty-one dollars and two cents ($263,731.02). 4. In response to the audit report dated March 31, 2010, PROVIDER filed a Petition for Formal Administrative Hearing. 5. Subsequent to the original audit that took place in this matter, and after further documentation review, the Agency determined that the overpayment amount should be adjusted to ninety-one thousand, two hundred ninety-nine dollars and eighty- one cents ($91,299.81). Additionally, the Agency assessed the following against PROVIDER: a fine in the amount of one thousand dollars ($1,000.00) for violation(s) of Rule 59G-9.070(7)(c), Florida Administrative Code; a fine in the amount of one thousand, five hundred dollars ($1,500.00) for violation(s) of Rule 59G-9.070(7)(e), Florida Administrative Code; and costs in the amount of eight hundred twenty-two dollars and forty-six cents ($822.46). The total amount due is ninety-four thousand, six hundred twenty-two dollars and twenty-seven cents ($94,622.27). 6. In order to resolve this matter without further administrative proceedings, PROVIDER and AHCA expressly agree as follows: (1) | AHCA agrees to accept the payment set forth herein in settlement of the overpayment issues arising from the MPI review. Agency for Health Care Administration v. Infinite Personal Possibilities, Inc. Settlement Agreement for C.1. No.: 10-9595-000 Page 2 of 7 (2) (3) (4) (5) Within thirty (30) days of the date of execution of a Final Order adopting this Settlement Agreement, PROVIDER agrees to make a payment of the following: an overpayment in the amount of ninety- one thousand, two hundred ninety-nine dollars and eighty-one cents ($91,299.81); sanctions in the amount of one thousand dollars ($1,000.00) for violation(s) of Rule 59G-9.070(7)(c), Florida Administrative Code; sanctions in the amount of one thousand, five hundred dollars ($1,500.00) for violation(s) of Rule 59G- 9.070(7)(e), Florida Administrative Code; and costs in the amount of eight hundred twenty-two dollars and forty-six cents ($822.46). The total amount due is ninety-four thousand, six hundred twenty- two dollars and twenty-seven cents ($94,622.27). The amount due will be offset by any amount already received by the Agency in this matter. PROVIDER and AHCA agree that such payments as set forth above will resolve and settle this case completely and release both parties from all liabilities arising from the findings in the audit referenced as C.I. Number 10-9595-000. PROVIDER agrees that it will not re-bill the Medicaid Program in any manner for claims that were not covered by Medicaid, which are the subject of the audit in this case. Payment shall be made to: AGENCY FOR HEALTH CARE ADMINISTRATION Medicaid Accounts Receivable 2727 Mahan Drive, Building 2, Suite 200 Agency for Health Care Administration v. Infinite Personal Possibilities, Inc. Settlement Agreement for C.1. No.: 10-9595-000 Page 3 of 7 Tallahassee, Florida 32308 8. Overpayments owed to the Agency bear interest at the rate of 10 percent per year from the date of determination of the overpayment by the Agency, and payment arrangements must be made at the conclusion of legal proceedings, pursuant to Section 409.913(25)(c), Florida Statutes. Q. 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. 10. 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. 11. This settlement does not constitute an admission of wrongdoing or error by either party with respect to this case or any other matter. 12. 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. 13. | 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. 14. 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 Agency for Health Care Administration v. Infinite Personal Possibilities, Inc. Settlement Agreement for C.1. No.: 10-9595-000 Page 4 of 7 PROVIDER and 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. 15. 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. 16. 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. 17. PROVIDER does hereby discharge the State of Florida, Agency for Health Care Administration, and its agents, representatives, and attorneys of and from all claims, demands, actions, causes of action, suits, damages, losses and expenses, of any and every nature whatsoever, arising out of or in any way related to this matter, AHCA’s actions herein, including, but not limited to, any claims that were or may be asserted in any federal or state court or administrative forum, including any claims arising out of this agreement. Agency for Health Care Administration v. Infinite Personal Possibilities, Inc. Settlement Agreement for C.1. No.: 10-9595-000 Page 5 of 7 18. The parties agree to bear their own attorney's fees and costs, if any. 19. 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. 20. 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. 21. This Agreement shall inure to the benefit of and be binding on each party's successors, assigns, heirs, administrators, representatives and trustees. 22. Alltimes stated herein are of the essence of this Agreement. 23. This Agreement shall be in full force and effect upon execution by the respective parties in counterpart. THE REMAINDER OF THIS PAGE !S INTENTIONALLY BLANK Agency for Health Care Administration v. Infinite Personal Possibilities, Inc. Settlement Agreement for C.1. No.: 10-9595-000 Page 6 of 7 INFINITE PERSONAL POSSIBILITIES, INC. By L a | Dated: @/) 2011 BY: Devore bec GLlto (Print name) STATE OF FLORIDA, AGENCY FOR HEALTH CARE ADMINISTRATION 2727 Mahan Drive Building 3, Mail Stop #3 Tallahassee, Florida 32308-5403 Dated: 12-490 2011 Inspector Genefal AY, _
