Findings Of Fact The Department, a state agency, initiated the underlying proceeding when Redi-Care's request for payment as a Medicaid provider was denied on September 19, 1989. Redi-Care was required to seek review of this governmental action through an administrative proceeding on September 28, 1989. Petitioner, Redi-Care Home Services, Inc. is a corporation which has its principal office in this state. At the time the administrative proceeding was initiated, the corporation had less than 25 full-time employees and a net worth of less than two million dollars. The assets of Redi-Care were sold to Lorinda Crowley on July 31, 1990. The shares of corporate stock and the liability were not transferred. Redi-Care authorized its President, Ms. Ingeborg G. Mausch, Ph.D., to proceed with the corporation's attempts to collect the Medicare claims at issue in the underlying proceeding. A Final Order was entered by the Department in the underlying proceeding on October 4, 1991. This order resolved the dispute in Redi-Care's favor. The claim for reimbursement for services rendered as a Medicaid Provider were to be paid upon the resubmission of the claims. The time for seeking judicial review of that order has expired and the order has become final agency action as a matter of law. Redi-Care timely filed its Petition for Attorney's Fees in this proceeding. The Department disputes portions of the application for fees relating to entitlement and to requested amounts of reimbursement for fees and costs. The underlying proceedings were initiated when the Department denied Redi-Care's claims for reimbursement for home health care services rendered to Richard Mow and Claire Jester beginning February 8, 1989. The reason given by the Department for its denial of the claims on September 9, 1989, was that Redi- Care's "Medicaid Provider" number could be used only for services rendered on or after May 4, 1989 because its certification survey was not completed until then. Although the agency's determination of ineligibility for payment due to the lack of certification would be proper in most cases under Rule 10C- 7.044(3)(a), Florida Administrative Code, it is not appropriate in this case. The Department was supposed to complete the requested survey in November 1988. The survey was not actually completed until May 4, 1989 because the Department's representative confused this entity with a similarly named entity located next door in November 1988. When Redi-Care received the documentation from Consultec assigning it a "Medicaid Provider" number in December 1988, the applicant reasonably believed the certification process had been completed and eligibility granted. The Department has been aware of its error in failing to provide the survey since at least April 18, 1989. Yet, no attempt was made to address this error as it related to the pending reimbursement claims beginning on February 8, 1989. Instead, the agency's involvement in the series of events that operated to prevent the proper application processing was ignored and Redi-Care was expected to suffer the consequences of the confusion created by all of the parties. One very reasonable way the Department could have cured its error would have been to submit Redi-Care's application for certification to Consultec on the day it discovered the error. This would have allowed Consultec to process claims from 90 days prior to the application under the Medical Home Health Agency Services Manual in effect at that time. This action was not taken by agency personnel who knew or should have known of this potential solution to the certification and reimbursement issues. The Department's letter advising Redi-Care of the Medicaid Program's decision to deny payment for services provided before May 4, 1989 was unreasonable governmental action. The possible affect of the agency's errors and the unrelated errors of its successive Medicaid agents for the Florida Medicaid Program on Redi-Care's pending claims were never addressed in spite of the Department's awareness of their existence. Redi-Care was required to pursue its claims through administrative proceeding's in order to prevent the denial of the reimbursement request.
Findings Of Fact The parties have stipulated that the only statutory criteria at issue are those related to need and long term financial feasibility as it relates to need, specifically Subsections 381 494(6)(c~ 1,2,9, and 12, Florida Statutes and Rule 10-5.011(1 (b)l. and 3. Florida Administrative Code. Nurse World, Inc. is an existing non-Medicare home health care agency and is a provider of temporary nursing services in District VII. The five biggest home health agencies in District VII are Nurse World, Visiting Nurse Association (VNA), Upjohn, PRN (no full name ever given), and Norrell. Nurse World is the largest of these as far as active staff, but is the only one of these that is not Medicare-certified. HRS is the agency responsible for certification and licensure of home health agencies. A home health agency in Florida must obtain a CON from HRS before it can be licensed and become eligible to receive Medicare reimbursement. Medicare is a federally funded health program for the elderly and certain disabled persons. Medicare reimbursement is limited to reimbursement for skilled nursing, physical therapy, speech therapy, occupational therapy, home health aid services, and medical social services. The Medicare program reimburses home health agencies on a cost reimbursement basis with a cap for each discipline. Home health agency costs in excess of Medicare caps must be absorbed by the agency. Consequently, traditional concepts of price competition have no applicability to home health agencies providing Medicare reimbursable services. Individuals become Medicare eligible for home health agencies' services in two ways. First, age makes an individual eligible when a person is over 65 and has paid a sufficient number of quarters to social security. Another way is for an individual under 65 to be declared disabled. The 1985 State Health Plan is the most current plan. The only portion of the 1985 State Health Plan which is applicable to home health agency applications is that access to home health services should be improved, specifically access for Medicaid and indigent patients. Nurse World's application satisfies this requirement. Only certain portions of the District VII local health plan are applicable to Nurse World's application. The methodology employed in the local plan was derived from a rule which was declared invalid. See infra on the inapplicability of these portions of the plans. The portions of the local plan which are applicable are the priorities that a home health agency provide a full range of service, improve access for underserved groups, and have interrelationships with the existing health care facilities and community. Since Nurse World, Inc.'s inception in August of 1981, it has grown from a staff of approximately 50-75 nurses to a current staff of close to 700 active field employees including registered nurses (R.N.s), licensed practical nurses (LPNs), nurse aides, and ancillary personnel. Nurse World's growth is due in part to quality patient care and effective and efficient employee management. A background check is done on personnel prior to hiring. Some of Nurse World's employees are screened by competency examinations. Ninety percent of its staff is made up of LPNs, Emergency Medical Technicians (EMTs) or Physician Aides (PAs). All receive additional training by Nurse World. Other home health agencies in District VII often call Nurse World to obtain nurses to fill out their shifts whereas Nurse World has never had that problem. In line with HRS' position that applicants must demonstrate that existing agencies cannot meet existing need, Nurse World submitted considerable reputation-type testimony. Upon proper predicate and under certain circumstances, evidence of character reputation and evidence of modus operandi, are admissible. "Character is distinct from reputation; reputation is evidence of character," Ehrhardt, Florida Evidence, Subsection 405.1 (2d Ed. 1984). See same text, Subsection 404.11 on modus operandi. Indeed, CON applicants traditionally try much of a contested case upon evidence of their own professional reputations, and the reputation of their competitors, privy to the case or not. This entire line of inquiry was prompted by HRS' negative burden of proof concept and upon authority of Balsam v. Department of Health and Rehabilitative Services, 486 So. 2d (Fla. 1st DCA 1986). In these contexts, reputation evidence, a hearsay exception, was admitted in evidence. Nurse World's reputation as reported from all sources in the community (District VII) is excellent, particularly for quality of care, reliability, and speed of response. This type of reputation evidence was also supplemented by opinion evidence from various witnesses' personal on-going experience. Nurse World also presented testimony that Upjohn does not have a good reputation, that VNA has an unfavorable attitude towards indigent patients, and that UpJohn and VNA nurses will contact a doctor less appropriately than Norrell or Nurse World when there is a change in the patient's condition. There was a modicum of evidence that a better nurse knows when to call a doctor and when not to. Nurse World is a continuing education unit (CEU) provider, offering seminars covering state of the art nursing skills twice monthly. This service naturally increases the proficiency and quality of Nurse World's own employees who attend, but additionally, its continuing medical education seminars serve the community as a whole, since every two years LPNs and R.N.s, must each complete 24 hours of additional training so as to be eligible to renew their professional licenses. Nurse World is the only home health agency in Central Florida that has a CEU provider number. Unlike most hospital CEUs in the area, its continuing medical education services are free of charge and it maintains a suggestion box for topics to be addressed. Its use of video tape instruction both in-house and for seminars is an advanced technique. Nurse World has the exclusive contract to provide nursing services to Hospice of Central Florida. Hospice of Central Florida is a Medicare-certified home health agency, which has no nursing staff of its own. It has only support staff. Nurse World provides all its nurses. After switching to VNA, Hospice switched back to Nurse World. Nurse World has guaranteed in its application that if the CON is issued, it will provide 3 percent of its patient visits to indigents and 3 percent of its patient visits to Medicaid-eligible patients. It is satisfied for any CON grant to be conditioned on such a requirement. Nurse World's proposal to devote 6 percent of its patient visits to the traditionally medically underserved is relatively high for a home health agency. Nurse World presently provides $8,000 in indigent care through its Hospice contract and provides one free patient visit for every five patient visits at Brookwood AMI Hospital. It also has an indigent volunteer services program which provides basic nursing skills training to families so that they can care for their loved ones at home. Nurse World is a "full service" agency. It is considered "high-tech", providing in the home C-pap, IV therapy, respirator, feeding through a chest tube catheter, hyperalimentation, passive motion and other services previously available only in hospitals. This element of its services is particularly significant because of Nurse World's availability to handle difficult cases such as AIDS victims, infants, and multiply-afflicted elderly patients on a 24 hour a day, 7 days a week basis. Nurse World proposes to offer and does offer a full range of services. No other home health agency in District VII provides the full range of services to the degree and over the 24 hour a day period as Nurse World does. These types of difficult cases appear to be underserved in District VII. Nurse World is the only home health agency in the District that effectively staffs its office seven days a week, 24 hours a day. Nurse World has done so ever since it took its first critical care patient and entered into high tech nursing. This relates directly to quality of care and being responsive to patients' needs with no endangering delay as discussed below in relation to high tech protocols. Among health care providers generally and among home health care agencies particularly, Nurse World has a unique approach to insure immediate access and responsiveness to its patients: it mans its telephones with live dispatchers with immediate access to professionals on call. No other Central Florida home health agency does this. At all times there is at least a registered nurse available by phone when a patient reaches Nurse World. There is always a second professional backup behind the professional on the phone, often the Director Ms. Denner, herself. Nurse World has adopted this approach because it feels there is not enough time for turnaround response with other systems when a critical care high tech patient or confused elderly patient gets in trouble or has an emergency. Answering services hold calls; beepers require the professional on call to find a phone and return a call to the answering service, receive the emergency message, and then, finally, call the patient. Nurse World's method allows for the professional who receives the call at any hour of the day or night, even on a weekend, to respond to most situations immediately over the phone, and if necessary to contact the 911 emergency number and the patient's own regular nurse within minutes. Nurse World was the first nursing service in the Central Florida area to render home health services to an AIDS patient, includes AIDS nursing in its continuing medical education efforts, and now gets referrals for Medicare on that basis. No other home health agency is dealing with AIDS patients to the extent that Nurse World is. Nurse World also has an agreement with Centaur, the AIDS support group for Central Florida, through which Nurse World will provide nurses at cost or at its "break even indigent rate". Nurse World has provided health care services to AIDS patients for a very minimal charge since this area of home health care-has been identified and has accelerated numerically. There are approximately 80-100 identifiable AIDS cases in the area. Nurse World has provided the bulk of care for these approximately 80- 100 diagnosed AIDS cases. Other agencies are reluctant to provide this care. Bona fide AIDS patients are eligible for Medicare. The Medicare bureaucracy is processing AIDS case applicants quickly, in 3 to 6 months, basically because there is that necessity. Dr. Robbins, a physician practicing in the Brevard, Seminole, and Orange County area in infectious diseases and internal medicine specializes in the treatment of AIDS. He sees a need for Nurse World to become Medicare certified to render services to the Medicare eligible AIDS patients, because in his experience, Nurse orld renders the best services qualitatively to these types of patients. Any number of AIDS patients (either on or off Medicare) above the number actually served by Nurse World or treated by Dr. Robbins has not been statistically demonstrated, but all testimony on the subject supports the 80-100 existing case figure and the concept that the AIDS numbers are escalating in both Medicare-certified and uncertified categories. One problem situation arising with increasing AIDS patients qualifying for Medicare is basically the same problem for all patients so qualifying. Once qualified, patients naturally must utilize one of the Medicare-certified home health agencies. The continuity of care of a patient is interrupted when Nurse World can no longer render nursing services to a former patient due to that patient becoming Medicare eligible. A break in the continuity of care unfavorably affects the quality of care rendered any patient. The patient and staff often develop a rapport and a break in care can emotionally depress the patient, leading to medical (physical) setbacks. Quality of care is likewise negatively impacted by switches in car givers because the more often a nurse sees a given patient over a period of time, the more that nurse is able to monitor the quality and progress of that patient. There is modest evidence that Nurse World is proficient in scheduling the right nurse for the right patient. Nurse World is the only home health agency that actually video tapes some cases and then trains specific nurses before ever sending them into the patient's home. There is presently a tendency to get people out of hospitals sooner than before due to the new diagnostic related grouping (DRG) regulations. Physicians then routinely refer these patients for home health care visits. As a result, in the last few years, there has been a quantifiable increase in the number of home health care visits requested in District VII. As a result of the increased demand and the inability of the Medicare-certified home health agencies to answer that demand (need), patients referred for Medicare home health services frequently will be seen only once or twice a week rather than three weekly visits as requested by their physicians. This is a significant deficiency in appropriate care for high tech critical care cases, including but not limited to the multiply- afflicted elderly. Also, nursing homes in the area are now experiencing sicker patients due to individuals getting out of the hospitals earlier through DRGs. The scope of nursing home care has increased. The patients released from hospitals cannot go directly home if their case is too complicated. Thus, many patients first go into nursing homes before going to their own homes. Nurse World provides temporary staff relief for the Americana Health Care Center, a skilled nursing home facility in-Winter Park, Florida. According to the testimony of Jill Miller, R.N., Director of Nurses for Americana, Nurse World's staff meets the high standards set at Americana whereas the other home health care agencies she has sometimes used have not. Nurse World personnel, however, are unable to follow the Medicare eligible patients home after release from Americana because Nurse World has no Medicare certificate. This breaks the continuity of care for Americana Medicare patients and can result in all the unfavorable physical and emotional setbacks set out above. Although the break in this continuity of Nurse World care is pronounced and more easily demonstrated using the Americana facility, and although it may be inferred that continuity of care is extremely important especially for the predominantly elderly population that uses Medicare regardless of which nursing home they exit, the continuity of exclusive care by Nurse World personnel specifically, falls short of representing a "special need" as that phrase has come to be understood in CON practice. This is also true for newly qualifying AIDS patients and hospital releases. Nurse World has provided high-tech in-service training at Americana free of charge. Nurse World is the only home health agency that staffs hospitals, nursing homes, and private duty visits. This sharpens the nurses' skills, especially their critical skills. Generally the existing Medicare-certified home health agencies still do not take home high-tech patients. It is advantageous to professional health care providers, the individual patients, and the community at large to encourage home care for high-tech patients. Caring for high- tech patients at home rather than in the hospital results in a cost savings to the community and for the individual patients as it is obviously much cheaper to care for patients at home. Also, the patients tend to get better quicker in their home environment. Examples of Nurse World's expertise in this area are that Nurse World was the first agency in the southeast United States to take home a baby on C-pap, a very sophisticated involved respirator. Nurse World is still the only agency located in District VII to have provided the C-pap at home. There is still no C-pap patient within District VII. Nurse World took home the first critical care, high tech patient in the Central Florida area four years ago. It is also the only agency that provides continuous passive motion care at home. Continuous passive motion care is a "state of the art" physical therapy device that provides continuous physical therapy. Nurse World has averaged three to four of these patients a week over the last year. Caring for high-tech critical care patients at home even when a "mini-intensive care unit" is necessary, costs the community much less than hospital care which can total $716 per day for a non-critical patient. Nurse World employs the largest number of critical care nurses in the area of any provider. Nurse World was the first agency that did blood gases on a patient at home, the first to take home a patient on a ventillator, the first to do home hyperalimentation, and the first to do a home I.V. patient. Two other agencies in the Orlando area now render high-tech services but not to the extent that Nurse World does. They began these services on a limited basis about a year after Nurse World began. Nurse World's "firsts" in these areas are significant because being in the vanguard of opening up these areas of practice has caused it to establish its own written in-home high tech policy and procedure (protocols) which the industry may voluntarily adopt since there is no HRS rule covering the subject matter. Most important about the protocols as developed and maintained by Nurse World are fail-safe techniques for dealing with malfunction of high tech machinery, power failure, isolation techniques for AIDS patients (sometimes considered "high tech"), and direct and immediate telephone contact with professional staff in any emergency. HRS does not presently have any methodology pursuant to rule or policy for projecting need for a home health agency. The methodology that HRS employed in reviewing the Nurse World application was contained in the District VII local health plan. That plan had adopted an HRS proposed rule which was subsequently declared invalid in Home Health Services v. Department of Health and Rehabilitative Services, 8 FALR 1510 (March 12, 1986). Sharon Gordon-Girvin, an expert in health planning, testified on behalf of Nurse World. She presented two methodologies for projecting the need for a home health agency in District VII. After the proposed rule was declared invalid, HRS developed a policy for determining the need for additional home health agencies, reflected in Petitioner's Exhibit 78, which was employed between March and August of 1986. That policy was actually used in reviewing home health agency applications, and in making decisions. HRS issued certificates of need for home health agencies based on that policy. Applying that HRS policy, which Gordon-Girvin considers "reasonable," there is a need for 35.3 home health agencies in District VII in 1986. 1986 is the planning horizon year applicable to the Nurse World application. There are 16 existing Medicare home health agencies in District VII. Direct, competent and substantial evidence supports the 16 figure which includes newly certified Profile Medical Services. HRS documentation confirms this. Uncorroborated hearsay evidence of an additional home health agency in District VII was struck. Therefore, the net need is for 19.3 home health agencies in District VII in 1986. HRS, when using this methodology, had a policy of giving out only one/third of the net need in each of three consecutive years. Gordon-Girvin would not term this latter policy nreasonable" and no one offered any acceptable justification for it. No reasonableness of this "award only 1/3 of need" policy was demonstrated and it has since been abandoned, but even by such a system, the net need in 1986 would be for 6.4 additional home health agencies in District VII in 1986. The gross need and the net need continue to increase through 1989. The methodology reflected in Exhibit 7B basically has two constants, the home health use rate and the optimal size visits. They act as constants. The increase in the number of agencies needed is attributable to the growth of the population. Ms. Gordon-Girvin also employed a methodology employed by District III as a point of comparison to see how the number of agencies needed in District VII could be affected by using a very conservative methodology. District III's methodology was selected as a conservative comparison to the former state health policy. Also, no other local health council has a need methodology. Employing the methodology reflected in Petitioner's Exhibit 7A, there is a need for 17 home health agencies in District VII or a net need for 1 additional home health agency. (Gross need minus 16 existing certified agencies). This is a very conservative methodology because it changes very slowly over time. In fact, the net need remains at 1 through 1989. Ms. Gordon-Girvin opined that this methodology employed in Petitioner's Exhibit 7A, is also a reasonable methodology but is very conservative and relies on hospital discharge rates in contrast to the discredited and abandoned HRS policy which is a use-based methodology. There are no other methodologies being employed by planners in Florida and no other methodologies were put forth by either party. Presently, HRS has no rule or policy designating a numeric methodology to determine the need for new medicare home health agencies in any given district. HRS review of CON applications for home health agencies is based solely on statutory criteria, the merits of the proposal, and the district need for the agency as demonstrated by the individual applicant. 80th need methodologies employed by Ms. Gordon Girvin contemplate the need for home heath agencies at the District level. That is, agencies operating in all four of District VII's counties. In reality, the existing home health agencies operate in only one or two mounties. For example, Profile Medical Services, the only successful applicant in the current batch, was recently issued a certificate of need under the HRS policy since discredited and abandoned, but its CON is limited so that it can operate only in 8revard county, so that actually only one-fourth the district need is being met. At the time the Nurse World application was reviewed, there were 11 licensed and approved CON home health agencies in District VII. Six of these agencies only operate in one county and five operate in only two counties. HRS is not aware of any Medicare-certified home health agency that operates in all four counties in District VII under a single certificate of need. Because HRS' policy has been invalidated as a rule and since it has been subsequently abandoned by HRS, it would be invalid to employ it in these proceedings. Even if the District III methodology determined a net need of one is reasonable, it would be unreasonable and unjustified to apply it as modified by HRS' uncodified award only 1/3 of need per year" policy, apparently also abandoned prior to hearing. Therefore, by the only reasonable need methodology presented (that of District III) there is room for one home health agency, not limited by county and not limited by the "award only 1/3 of need per year" policy. The 1/3 limitation should not apply in any case because it has no current application by HRS and because its effect varies the horizon year. Since HRS had no need methodology or policy in place at date of hearing, it took the-position that an applicant must demonstrate need by finding people who are not getting the service. Ms. Gordon-Girvin, Petitioner's expert who had been employed at HRS in health planning for 11 years, opined that there is no adequate quantifiable technique available as a health planning methodology that will allow a health planner to make use of a negative demonstration of need. She suggested use of responses to a newspaper advertisement and then demolished that method of proof as "impractical". Another difficulty with this type of negative demonstration approach is that existing agencies can deal with increased need demands by simply continuing to add staff. Gordon-Girvin knew of no applicant that had acquired a CON by proving lack of access. Additionally, a similar agency position (the Rule of 300) has been struck down by the courts. This negative burden of proof concept has been given short shrift by the courts and is rejected here as well. See Department of Health and Rehabilitative Services v. Johnson and Johnson Home Health Care, Inc., 447 So. 2d 361 (Fla. 1st DCA 1984). Richard Gramming, an expert in health planning, testified on behalf of Nurse World. He presented Petitioner's Exhibit 6 which demonstrated that there is a capacity for other agencies in District VII and that if one of those agencies were to be Nurse World, the impact would not be very significant on the available number of visits. The multiplication of the Medicare home health use rate by the 65+ population for District VII produces the potential number of Medicare home health visits for District VII which for 1986 is 317,304. The total number of home health agency visits, Medicare and non-Medicare, for 1984 in District VII was 309,920. Of these visits, 266,531 were Medicare visits. When the actual number of Medicare visits is subtracted from the potential number of Medicare visits, there are 50,773 Medicare visits available for current and existing providers. When Nurse World's projected number of visits from year two (5,625) are subtracted there are still 45,148 Medicare visits available for current providers. Nurse World's approval should have no serious impact on the short or long term financial positions of the existing Medicare providers with the possible exception of Hospice, which may have to hire its nurses elsewhere. An interest such as Hospice's is not one which Chapter 381 is designed to protect. Mr. Gramming's projections are very conservative and the untapped market is probably larger, since the Medicare eligible due to disability were not factored into his formulas and the use rate in the formula was kept constant, whereas it has been increasing over time. A review of Nurse World's past growth rate and conservatively projected growth rate reveals that Nurse World is financially secure for a long-term position. In light of the potential market as demonstrated by the foregoing findings of fact, a long-term financial feasibility of Nurse World will be assured. Home health agencies are labor intensive rather than capital intensive, with few fixed costs. The entry of Nurse World into the market will tend to keep costs as they are or perhaps lower costs through increased competition. Medicare costs caps are more effective in preventing cost inflation. Nurse World has met its minimal burden of proof to establish there will be no significant adverse impact on cost if the Nurse World application is approved; HRS has not gone forward to demonstrate there will be any adverse impact on costs if the application is approved. Nurse World has demonstrated that access to health care by the underserved population will be improved and that the opportunity for specialization within the existing market place will be enhanced by their entry into the market. Nurse World's actual growth rate from 1984 to 1985 and from 1985 to 1986 has been 20 percent per year in gross revenues. Twenty percent growth is logically anticipated for the current year despite a more conservative 12 percent calculation.
Recommendation Upon consideration of the foregoing findings of fact and conclusions of law, it is, RECOMMENDED that a Final Order be entered granting Petitioner Nurse World a CON to establish and operate a home health agency in District VII (Orange, Osceola, Brevard, and Seminole counties), conditioned upon its providing 3 percent indigent and 3 percent Medicaid qualified services. DONE and RECOMMENDED this 20th day of May, 1987, at Tallahassee, Florida. ELLA JANE P. DAVIS, 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 20th day of May, 1987. COPIES FURNISHED: Gregory L. Coler, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Eric J. Haugdahl, Esquire 1363 East Lafayette Street Suite C Tallahassee, Florida 32302 John Rodriguez, Esquire Department of Health and 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 APPENDIX The following constitute rulings pursuant to Section 120.59(2), Florida Statutes, upon the parties proposed findings of fact (FOF): Petitioners proposed findings of fact: 1-4 To the extent not covered under "Background and Procedure," these are subordinate and unnecessary. Covered in FOF 2. Covered in FOF 8. Covered in FOF 9. Covered in FOF 3 & 10. Covered in FOF 3. Covered in FOF 10. Covered in FOF 10. Covered in FOF 12. 13-15 Covered in FOF 13. 16 Covered in FOF 16. 17-20 Covered in FOF 7. Covered in FOF 14. Covered in FOF 16-17. Rejected as a conclusion of law; see FOF 13 and conclusions of law. Accepted but subordinate to the facts as found. 25-26 Accepted but subordinate to the facts as found, cumulative FOF 7. 27-28 Rejected as unnecessary, as mere "puffing" and as subordinate to the facts as found. See FOF 10 and 18 on proposal 28. 29. Rejected as unnecessary and subordinate to the facts as found. See FOF 25.l 30-34 To the extent supported by the admissible direct competent substantial record evidence, these are covered in FOF 16; otherwise rejected. 35. Covered in FOF 6.l 36-37 To the extent supported by the record, covered in FOF 16, otherwise rejected. 38 Covered in FOF 10 and 15. 39-40 To the extent supported by the record and to the extent necessary to a determination of this cause, covered in FOF 17- 21, otherwise rejected. 41-42 Covered in FOF 19. 43-44 Covered in FOF 20-21. Covered in FOF 22. To the extent not covered in FOF 8 and 11 rejected as cumulative. Unnecessary, as mere "puffing", and as subordinate to the facts as found in FOF 14 and 25. Covered in FOF 23. Covered in FOF 24. Covered in FOF 14-16, and 25. Covered in FOF 25. Covered in FOF 25 but cumulative. Accepted as true, but rejected as subordinate and unnecessary. Except as covered as to capability of Nurse World in FOF 14 and 25, it is also largely immaterial to these proceedings in that Mrs. WiIdermuth's child is not eligible for Medicare, cannot become eligible for Medicare and resides outside District VII in Volusia County. 54-56 Covered in FOF 25. 57 Covered in FOF 3 and 8. 58-50 Covered in FOF 25. 61-62 Subordinate to the facts as found. See FOF 39 and 42. Cumulative, see FOF 23. Covered in FOF 15. 65-73 and 75-78 Except as covered in FOF 11 and 16 these proposals are rejected as subordinate, unnecessary or cumulative to the facts as found. 74 Covered in FOF 11 and 18. Covered in FOF 27-34. Rejected as a conclusion of law. 81-89 Covered in FOF 26-35 and conclusions of law. 90 Accepted for the reasons set out in the transcript reference, but as a FOF it is subordinate and unnecessary. 91-95 Covered in FOF 26-35. 96 Rejected as irrelevant since no such out of state methodology was offered. See FOF 28. 97-105 Covered in FOF 30-35. Rejected as a conclusion of law. Covered in FOF 36. Covered in FOF 37. 109-110 Accepted but unnecessary. 111-119 Covered in FOF 36-42. 120 Accepted but rejected as unnecessary. Respondent's proposed findings of fact: 1 Covered in background and procedure. 2 Covered in FOF 2, 8, 14 and 15. 3 Covered in FOF 13. 4 Covered in FOF 11. 5 Covered in FOF 10. 6 Covered in FOF 14 and 25. 7 Covered in FOF 8 and 23 (among others). 8 Covered in FOF 4. 9 Covered in FOF 5. 10 Covered in FOF 6. 11-12 Covered in FOF 26-35.
The Issue Whether the license of Santos Home Health Care Agency to operate as a home health agency should be revoked on the basis of deficiencies cited during an annual survey conducted March 8, 1993, and on subsequent follow-up surveys.
Findings Of Fact Petitioner is the agency of the State of Florida with the responsibility to license and regulate home health care agencies. At all times pertinent to this proceeding, Respondent was licensed by Petitioner as a home health agency in the State of Florida. Sections 400.461 - 400.515, Florida Statutes, constitute the "Home Health Services Act." Section 400.462(4), Florida Statutes, defines a home health agency as being ". . . an organization that provides home health services and staffing services for health care facilities." Section 400.464(1), Florida Statutes, requires that home health agencies be licensed by the Agency for Health Care Administration. This licensure expires one year after its issuance and the home health agency is required to renew its licensure on an annual basis. Home health agencies are subject to federal and state regulation. Petitioner has adopted many of the federal regulations as its own rules. Pursuant to the provisions of Section 400.474, Petitioner has the authority to deny, revoke, or suspend a home health care license if the licensee violates any provision of the Home Health Services Act or any applicable rule. On March 8, 1993, Annette Cassuto conducted a licensure and certification survey of the Respondent's operations. Ms. Cassuto is a registered nurse specialist and is employed by Petitioner as a health care and facilities consultant. This was a routine, annual survey conducted to ensure that the licensee was in compliance with the myriad of state and federal rules. Ms. Cassuto found that Respondent was not in compliance with over one hundred federal regulations. Each of these federal regulations has also been adopted as a state regulation. Ms. Cassuto thereafter compiled a report that detailed each of these deficiencies. Respondent was provided a copy of this report and was given a period of thirty days within which to come into compliance by correcting the cited deficiencies. A copy of Ms. Cassuto's report is included as part of Petitioner's Composite Exhibit 1. Ms. Cassuto's report accurately reflects her findings on March 8, 1993. On April 27, 1993, a follow-up inspection was conducted to determine whether the violations cited in Ms. Cassuto's report had been corrected. This inspection was conducted by Mary Anne Usher, who did not testify at the formal hearing. Following her inspection, Ms. Usher prepared a detailed report that found that Respondent had not corrected any of the deficiencies that had been noted by Ms. Cassuto following her inspection on March 8, 1993. There was no evidence that contradicted the findings contained in Ms. Usher's report. On August 8, 1994, another licensure and certification survey was conducted by Pauline Agostinelli, a registered nurse specialist who has conducted hundreds of licensure and certification surveys for Petitioner. Following this survey, Ms. Agostinelli found that Respondent was not in compliance with rules pertaining to record keeping, treatment plans, and quality assurance. Ms. Agostinelli thereafter compiled a report that detailed each of these deficiencies. A copy of Ms. Agostinelli's report is included as part of Petitioner's Composite Exhibit 3. Respondent was provided a copy of this report and was given a period of thirty days within which to come into compliance by correcting the cited deficiencies. Many of the deficiencies were cited by the reports filed by Ms. Cassuto and Ms. Usher. On September 12, 1994, Ms. Agostinelli returned for a follow-up survey and determined that Respondent had only corrected one minor deficiency and that it remained out of compliance with rules pertaining to record keeping, treatment plans, and quality assurance. Petitioner established that Respondent is not in compliance with pertinent rules pertaining to record keeping, treatment plans, and quality assurance.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order that adopts the findings of fact and conclusions of law contained herein and that revokes the home health agency license of Santos Home Health Care Agency. DONE AND ENTERED this 24th day of January, 1995, 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 24th day of January, 1995. COPIES FURNISHED: Fredericka Sands, Esquire Agency for Health Care Administration 401 Northwest 2nd Avenue, N-526 Miami, Florida 33128 Esmin Santos Santos Home Health Care Agency 221 South State Road 7 Plantation, Florida 33317 Sam Power, Agency Clerk Agency for Health Care Administration 325 John Knox Road, Suite 301 Tallahassee, Florida 32303-4131 Harold D. Lewis, General Counsel Agency for Health Care Administration 325 John Knox Road, Suite 301 Tallahassee, Florida 32303-4131
The Issue Whether Nursing Quality Services, Inc. (Respondent), a Medicaid provider, was overpaid by the Florida Medicaid Program in the amount of $8,154.02, and, if so, whether Respondent must pay to the Agency for Health Care Administration (Petitioner) the amount of the alleged overpayment, a penalty in the amount of $1,630.80, costs in the amount of $43.94, and any applicable interest.
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. Relevant to this proceeding, Respondent is a home health services provider, providing nursing services to residents of assisted living facilities (ALFs). 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. Respondent is also required to comply with the Home Health Services Coverage and Limitations Handbook (Coverage Handbook). Home health services are billed in units of service. Each unit of service has a billing code that generates a specified Medicare payment to the provider. The two billing codes at issue in this proceeding are T1030 and T1031. A billable unit of service is generated under these codes when either a registered nurse or a licensed practical nurse goes to an ALF and provides a qualified service to a resident of the ALF. Tab 6 in Petitioner's exhibit book contains relevant excerpts of the Coverage Handbook, which was last revised in July 2008. Relevant to this proceeding, the Coverage Handbook reflects the following reimbursement information under the bulletin heading "Home Health Visits for Multiple Recipients at One Location" with emphasis added by the undersigned: Home health visit services provided to two or more recipients with individual residences at a single location are reimbursed as one visit for each individual receiving a home health service at that location (for example, visits at an assisted living facility). Home health visit services provided to two or more recipients sharing a residence at a single location (for example, visits at a group home) are reimbursed as follows: For the first recipient, Medicaid reimburses the service at the established Medicaid visit rate; For the second recipient, Medicaid reimburses the service at 50 percent of the established Medicaid visit rate; and For any additional recipients, Medicaid reimburses the services at 50 percent of the established Medicaid visit rate. The Bureau of Medicaid Program Integrity (MPI) has generated a memorandum that reflects its understanding of the coverage and limitations set forth in the Coverage Handbook. Key to this proceeding, the memorandum states the following as to services provided to a resident of an ALF with emphasis added by the undersigned: MPI further understands that residence in an assisted living facility would not justify an automatic authorization for a 100 percent reimbursement of the established Medicaid reimbursement rated for home health services. Providers will be given the opportunity to submit documentation demonstrating individual residence at a single location for MPI review and subsequent decision-making as to applicable reimbursement policy. Should the documentation substantiate an individual residence at a single location for the recipient(s) in question, the reimbursement for home health services would be allowed at 100 percent of the established Medicaid reimbursement rate appropriate for the date of service. As part of a larger audit of Medicaid providers, Petitioner audited Respondent based on billings submitted by Respondent and paid by Petitioner. Taking information reflected by Respondent's billings, Petitioner prepared a PAR, which was dated January 23, 2012, and signed by Ms. Fante. The PAR cited the Coverage Handbook, statues, and rules Petitioner relied upon and attached a detailed audit report reflecting that Respondent was overpaid $8,154.02. All of the services at issue in this proceeding were billed and paid at 100 percent of the established Medicaid visit rate for identical units of service (either T1030 or T1031) generated at the same facility location on the same date whether or not it was the first recipient (the so-called anchor recipient), a second recipient, or an additional recipient. Respondent's billings provided the respective address for each of the three ALFs at which these recipients resided, but the billings do not document that each recipient maintained an individual residence in that ALF. Consequently, after payment for the anchor recipient at 100 percent of the Medicaid reimbursement rate, Respondent should have been paid at 50 percent of the reimbursement rate for identical units of service to the other recipients at the same address on the same day. The payments at 100 percent of the billing rate for units of service that should have been reduced to 50 percent of the billing rate constituted overpayments. Petitioner established that the amount of the overpayment totaled $8,154.02. The PAR was not final agency action. Respondent was advised of the following options: Pay the identified overpayment in this notice within 15 days of the receipt of this letter. Under this option, amnesty will be granted, sanctions will not be applied and costs will not be assessed. If you wish to submit further documentation in support of the claims identified as overpayments, you must do so within 15 days of receipt of this letter. Any additional documentation received will be taken under consideration and you will be notified of the results of the audit in a final audit report. Under this option, a final audit report will be issued and will include application of sanctions, the assessment of costs, and hearing rights. If you chose not to respond, wait for the issuance of the final audit report. Under this option, a final audit report will include the application of sanctions, the assessment of costs, and inform you of any hearing rights that you may wish to exercise. The PAR was sent to Respondent via Federal Express using the following address: 8300 SW 8 Street, Suite 107, Miami, FL 33144. Ms. Creel testified, credibly, that the foregoing was the address of record for Respondent at the time the PAR was sent to Respondent. The Federal Express receipt reflects that the PAR was delivered on January 25, 2012 at 9:41 a.m., and signed for by someone named "M. Mejia." The receipt reflects that the PAR had been delivered to "Receptionist/Front Desk." Mr. Fernandez testified, credibly, that he never received the PAR because Respondent had moved its offices from Suite 107 to Suite 103 in the same building. While that evidence is accepted, Ms. Creel established that Respondent's office of record with Petitioner had not been updated at the time the PAR was sent to Respondent. Respondent did not respond to the PAR. Petitioner prepared a "Final Audit Report" (FAR), which was dated March 2, 2012, and signed by Ms. Fante. The FAR asserted that Respondent owed $8,154.02 as the overpayment, a fine in the amount of $1,630.80, and costs in the amount of $43.94, for a total of $9,828.76, plus applicable interest. The FAR was sent to Respondent by Federal Express at the same addressed that had been used for the PAR. The Federal Express receipt reflects that the FAR was delivered on March 8 at 9:28 a.m. and signed for by "M. Mejia." The receipt reflects that the PAR had been delivered to "Receptionist/Front Desk." The FAR advised as follows: Pursuant to section 409.913(25)(d), F.S., the Agency may collect money owed by all means allowable by law, including, but not limited to, exercising the option to collect money from Medicare that is payable to the provider. Pursuant to section 409.913(27), F.S., if within 30 days following this notice you have not either repaid the alleged overpayment amount or entered into a satisfactory repayment agreement with the Agency, your Medicaid reimbursements will be withheld; they will continue to be withheld, even during the pendency of an administrative hearing, until such time as the overpayment amount is satisfied. Pursuant to section 409.913(30), F.S., the Agency shall terminate your participation in the Medicaid program if you fail to repay an overpayment or enter into a satisfactory repayment agreement with the Agency, within 35 days after the date of a final order which is no longer subject to further appeal. Pursuant to sections 409.913(15)(q) and 409.913(25)(c), F.S., a provider that does not adhere to the terms of a repayment agreement is subject to termination from the Medicaid program. Finally, failure to comply with all sanctions applied or due dates may result in additional sanctions being imposed. The FAR provided Respondent an explanation of its right to request an administrative hearing pursuant to the provisions of chapter 120. Mr. Fernandez received the FAR. Promptly thereafter, Mr. Fernandez called Ms. Creel to discuss the assessed overpayment, fine, and costs. Mr. Fernandez told her that he had not receive the PAR, and asserted that there was no overpayment because each recipient of the payments at issue lived in an ALF. Ms. Creel answered his questions as to the type documentation Respondent could submit to document there was no overpayment, but she explained to him that she had no authority to extend any of the deadlines set forth in the FAR. Respondent thereafter requested a formal administrative hearing, the matter was referred to DOAH, and this proceeding followed. As noted above in the Preliminary Section, Respondent offered no exhibits at the formal hearing. While Mr. Fernandez had visited each of the three ALFs at issue in this proceeding, he knew nothing about the living quarters of any of the recipients. The term "individual residence" is not defined in the Coverage Handbook, by rule, or by statute. Consequently, the plain meaning of the phrase is used in finding that there was no evidence that any of the recipients maintained an individual residence at the location of his or her ALF.
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 that Nursing Quality Services, Inc., was overpaid by the Florida Medicaid Program in the principal amount of $8,154.02. It is further recommended that the final order require Nursing Quality Services, Inc., to repay the Florida Medicaid the amount of $8,154.02, together with applicable interest and cost in the amount of $43.94. It is further recommended that no administrative fine be imposed. S DONE AND ENTERED this 13th day of September 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 13th day of September, 2012.
Findings Of Fact MPP presently provides home health services to residents of Hillsborough and Polk Counties from its offices located in Tampa and Lakeland. Without these certificates of need herein requested MPP is not authorized to provide home health services to Medicare and Medicaid eligible persons. MPP is qualified to provide the proposed services. Walker is a non-profit 122-bed acute care community hospital located in Avon Park, Highlands County, Florida. Walker has provided health care services to residents of Highlands County since 1947. Although Walker does not currently provide home health services in Highlands County, it is fully qualified to provide the proposed services. Home health agencies (HHA) differ significantly from other health care providers chiefly in the fact that they are labor intensive and not capital intensive services. Most home health agencies contract with nurses, therapists, and other personnel to provide the services on an as-needed basis. Once an office is established with the necessary communications and accounting facilities, expansion of the agency is accomplished merely by signing up as many nurses, therapists, etc., as is needed to provide home health services as required. Theoretically, one home health agency could provide all of the services required in a district, subject only to the travel time needed for the in-home provider to reach the patient and the accessibility of the agency office to the hospital or doctor prescribed in the home health treatment. A proposed rule prevents this from occurring by the rule formula which limits the divisor in the formula (number of expected medical care visits per agency per year) to 21,000 expected visits per agency, which is then multiplied by a constant. Thus, if there were only one home health agency in a district and it was providing 65,000 home Medicare visits per year, use of the proposed rule methodology would show a need for additional HHAs. Although both Petitioners challenged DHRS' non-rule policy in determining the need for HHAs in District VI, all of the need calculations they submitted are predicated upon the need methodology as contained in proposed Rule 10-5.11(14), F.A.C., modified by the Petitioners using 1983 use rates and disregarding the "crossover" agencies. No need calculations based on any other methodology were presented. The methodology in the proposed rule provides [N]eed equals the [G]ross number of HHAs to be allocated in the district less the number of [L]icensed and approved HHAs in the district, or N = G - L. "G" is itself expressed by the formula MV x (A+B)/S where: MV = The 1982 statewide mean number of visits per Medicare home health care service user across age groups (31.5) A = The projected district population of persons 65 years or older times the Medicare home health services utilization rate standard for that population group [POPA x .0506]; B = The projected district population of persons less than 65 years of age who are estimated to be disabled times the Florida home health services utilization rate standard for disabled medical beneficiaries [POPB x .01755 x .0297]; S = The number of expected Medicare visits per agency per year. This number is obtained by adding to the base agency size of 9,000 visits per year an additional number of visits equal to the total number of Medicare visits in the projected year, divided by the base agency size, multiplied by a factor denoted as C. C is a standard which is set at 270 for applications timely filed in calendar years 1984 and 1985; 225 for applications timely filed in calendar years 1986 and 1987 and 180 for applications timely filed in calendar year 1988 or beyond. However, if the result of the calculation of S exceeds 21,000 visits projected, S shall be assigned a value of 21,000. The methodology employed in need calculation is based on a number of factors. MV (31.5) is a standard which is based on information obtained from the Health Care Finance Administration (HCFA) for Florida in 1982. If this standard is recomputed using 1983 HCFA data, MV is 33.3. The second, the Medicare home health care utilization rate standard (.0506), is also based on information reported by HCFA for Florida for 1982. The estimate for the proportion of the Florida population which is disabled (.01755) was also derived from the 1982 data for Florida, as was the factor which specifies the home health services utilization standard for disabled Medicare beneficiaries (.0297). The base agency size (9,000 visits annually), which is used in determining "S", the number of expected Medicare visits per agency per year, was developed by the HRS Office of Comprehensive Health Planning, based on a statistical analysis of data related to agency size, relative efficiency in terms of cost, and economies of scale. That analysis revealed that, in the range of about 9,000 visits, the first reasonable economies of scale begin to accrue in the operation of a home health agency. Therefore, this level of service provision was selected as the agency standard. The maximum level "S" can reach (21,000 visits annually) was found to be the point at which the major economies of scale appear to have been achieved. Thus, this level was selected as the maximum for the agency standard. The values as selected for "C" represent 3.0 percent, 2.5 percent, and 2.0 percent of the base agency size standard (9,000 visits annually). This factor is used to adjust "S" over time, its effect is that of increasing the number of home health agencies, which are projected as needed, gradually over a three-year period. It was selected as a standard based upon HRS' policy to encourage the development of health care markets in an orderly manner and to avoid the disruptive impact of a flood of new service providers immediately. The "C" factor changes over a time, which means that "S" will grow smaller and thus the gross number of agencies will increase. Thus, even MPP's expert witness agrees that the rule is not frozen. Rather, it is dynamic, though conservative, in effect. In fact, the result of the calculations of "G" (gross number of agencies) approximates the current, existing inventory of home health care agencies in Florida. The Local Health Plan for District VI makes no provision for establishing subdivisions within the district. Accordingly, an HHA located in any county in District VI can serve the entire district subject only to geographical limitations. There are 16 HHAs domiciled in District VI and six HHAs domiciled in adjacent districts but licensed to serve a contiguous county in District VI. These so-called crossover agencies presently serve or are licensed to serve Medicare patients in District VI. Counting these crossover agencies and the number of existing agencies, there are 22 licensed and approved HHAs in District VI. Using the proposed rule methodology and applying the estimated population for 1987 (two years from date of hearing) gives a calculated gross need of 19. Under the proposed rule methodology, there is presently a surplus of three HHAs in District VI. Under the proposed rule, these crossover agencies would have to apply for expedited review of an application to establish an office in the county in which they are licensed but not domiciled. Exactly what this review will consist of is subject to some dispute. However, until the proposed rule goes into effect, there is no occasion for these crossover agencies to seek a certificate to do that for which they are currently licensed. If the 1983 data from HCFA, which was the latest usage data available at the time of the hearing, is substituted for the 1982 data prescribed by the proposed methodology, and the overall district need is recomputed, an overall need of 21.63 is arrived at for District VI in 1987. This rounds off to 22 and is the same as the present number of licensed and approved HHAs in District VI. Both Petitioners contend that the six crossover agencies should not be counted in the total number of licensed and approved HHAs in District VI because there is no guarantee they now serve or will ever serve patients in District VI. If these agencies are excluded, there is a clear need under the proposed rule methodology for the three HHAs here being applied for. Under the proposed rule, each of these crossover agencies must apply within a time certain (60 days) following the effective date of the proposed rule for certificates of need to open an office in the county for which they are licensed. These crossover agencies may have grandfather rights to serve Medicare patients in those counties in which they are licensed and, if so, these rights cannot arbitrarily be abrogated. Petitioners especially contest counting the three Gulf Coast Home Health Services corporations as three crossover agencies because each of them is licensed to serve only Hillsborough County in District VI; because they have the same directors, corporate officers and owners; and because all of them would be unlikely to open additional offices in Hillsborough County. Nevertheless, each is a separate and distinct entity with its own corporate identity. As such, each has the same right to serve Medicare patients in Hillsborough County as does Total Professional Care, Inc., another crossover agency so licensed. The services provided by these crossover agencies, insofar as they provided services to Medicare patients in the counties in District VI in which they are licensed, are included in the usage data obtained from HCFA. This usage data, mean number of visits (MV), is a principal factor in the numerator of the methodology formula above discussed. Thus, the district usage includes those services provided by these crossover agencies. No evidence was presented regarding the actual number of visits provided to District VI patients by these crossover agencies. Accordingly, it is inconsistent to accept the proposed rule methodology and exclude the crossover agencies in the count of existing agencies to determine the gross number of HHAs needed. Respondent's contention that these crossover agencies are akin to health care providers who have been issued a CON but are not yet licensed and in operation is not fully concurred with. Those providers issued a CON are counted in the number of authorized and licensed beds before their facilities commence operations those facilities are usually capital intensive rather than labor intensive as are HHAs and a longer delay in commencing operations is required for those types of facilities than for an HHA due simply to the time needed to construct those facilities. In other respects, those approved but not yet licensed facilities are similar to these crossover agencies in that some of these crossover agencies may have grandfather rights to open an office in the county in District VI in which they are presently licensed. In this respect they are like the applicant who has been issued a CON to operate a nursing home but subsequently decides to forego construction because of unexpected costs or other reasons. Each would lose its right to operate the health care facility by reason of failure to timely comply with rule requirements. However, until such time as those rights are forfeited they should be counted in determining the number of beds or other health care facilities that are needed in, the district in the year those facilities are programmed to be in operation. Changes in Medicare reimbursement to health care providers, principally hospitals, by the advent of the DRG (Diagnostic Related Group) has led to an increase in demand for the services provided by home health agencies. This is especially true for surgery patients who can be released from a hospital sooner if dressing changes and nursing care can be provided at the patient's home. Under the DRG method of reimbursement, the hospital is paid a Flat fee for Medicare patients for a specific diagnosis and treatment. The sooner the patient can be released from the hospital, the less will be the cost to the hospital for providing treatment. If, for example, the cost for a hospital bed is $400 per day and the DRG for the patient's ailment is $2,000, if the patient is kept in the hospital for five days, the total payment received will exactly cover the cost of the room. If the patient is kept in the hospital more than five days the hospital will lose money, while if he is discharged before the five days the hospital will make a profit Walker's primary contention is that it should be allowed to operate an HHA so it can discharge surgical patients sooner and provide the needed care at the patient's home by persons supervised by the hospital doctors. This would allow Walker to make more profit and thereby have more funds available to take care of indigent patients. Walker presented several witnesses who averred that a hospital-associated HHA provides better care than does a free- standing HHA. All these witnesses are employees of Walker and this self-serving testimony is given little weight. Both the hospital-run HHA and the free-standing HHA will employ part-time workers to provide the home health care prescribed. There is no logical reason to assume the hospital-affiliated HHA will employ better qualified nurses, etc. to provide the home health services needed than will the free-standing HHA. Medicare reimburses hospital-based home health agencies at a higher level than free- standing HHAs. This is an add-on of approximately 13 percent over the reimbursement received by free-standing HHAs. This is based on the cost of providing services which is generally higher for hospital-based HHAs. Walker also raised the issue of availability of occupational therapy, respiratory therapy, and medical-social workers. One of the two agencies operating in Highlands County, Highlands County HHA, does not provide these services. The other, Upjohn, is newly authorized to provide home health services in Highlands County. In other counties in Florida in which Upjohn is authorized to provide home health services it provides a broad range of services to home health patients including occupational therapy, respiratory therapy, and medical, social workers. Respondent's expert witness opined that such services were now available in Highlands County. This opinion was based in part on hearsay evidence that the witness received from an Upjohn representative that such services are provided. No direct testimony was presented that Upjohn did, or did not, provide the services not presently provided by Highlands County HHA. Accordingly, there was no credible evidence to rebut the opinion of HRS witnesses that these services are available in Highlands County. MPP's offices are currently available on a 24-hour per day basis and this will continue if the application is granted. Walker is also available 24 hours per day and access to home health personnel will also be available. MPP has committed to allocate 2 percent of its gross annual visits from each office to Medicare patients. In addition, one totally uncompensated visit will be provided to an indigent for every 20 Medicare visits. MMP presented no evidence that it is currently providing uncompensated services. Walker, which is a church owned and backed non-profit hospital, projects that 7.5 percent of its home health agency visits will be to indigent persons. This mirrors the current hospital-provided services to Medicaid patients. Walker's primary contention, that because hospital- based HHAs provide better care or better supervised care doctors will be more willing to release patients sooner than they.: otherwise would if there is no hospital-based HHA available, is not supported by credible evidence. It is simply not credible that a nurse employed by a hospital-based HHA is more competent, trustworthy, or capable than is the same nurse when employed by free-standing HHA. The chance of losing hospital records when a patient is transferred to a free-standing HHA would appear no greater than when the patient is transferred to a hospital-based released from the hospital whether home health services is thereafter provided or not. In view of the confidentiality of patient records, it would be expected that these records be retained in the hospital files. Absent a rule or policy to provide a methodology to determine need for additional HHAs, new applicants for certificates have a nearly impossible task of proving need if there are existing HHAs which oppose the application. This is so because of the nature of HHAs that they can expand to cover all needs simply by engaging more part-time personnel to provide the home health services needed in the community, county, or even district.
Findings Of Fact On December 18, 1978, the Petitioner, using the name "Upjohn Healthcare Services, Inc." filed its application for certificate of need with the Florida Panhandle Health Systems Agency, Inc. This application was deemed complete on April 20, 1979. The application as originally filed indicated that healthcare services were to be made available on a 24 hour a day basis, seven days a week, with an admission criteria based on the patient's need for home health care, his ability to make available financial resources and the Petitioner's ability to provide the services required. Services were to be provided from a central location in Pensacola, Florida, which is in Escambia County, Florida; to serve Escambia, Santa Rosa and Okaloosa Counties, Florida. The application was subsequently amended to indicate the willingness of the Petitioner to aid Medicare and Medicaid patients in the named counties. The Petitioner, hereinafter referred to as "Upjohn", operating as Upjohn Healthcare Services, Inc., is a subsidiary of the Upjohn company, having forty-Seven certified home health agencies in the United States. The organization has twenty-one offices in the State of Florida and one of those offices is located in Pensacola, Florida. The State of Florida, Department of Health and Rehabilitative Services, is an agency of the State of Florida charged with the duty to evaluate the applications for certificate of need and to issue such certificates as would be appropriate under the terms of Chapter 381, Florida Statutes, and Rule 10-5, Florida Administrative Cede. This application for certificate of need and that of the companion case of Personnel Pool of Pensacola, Inc., d/b/a Medical Personnel Pool, hereinafter referred to "Personnel Pool", are also considered in accordance with the Health Systems plan for the Florida Panhandle effective December 15, 1978. A copy of that document may be found as the Joint Exhibit No. 2 admitted into evidence. The project review committee of the Northwest Florida District recommended to the Northwest Florida Subdistrict Advisory Council that the certificate of need be granted and this action was taken on May 2, 1979. A public hearing was held on May 8, 1979, and on Nay, 17, 1979, the Northwest Florida Subdistrict recommended the disapproval of the project. This disapproval followed a staff report by the staff of the Florida Panhandle Health Systems Agency which suggested that the certificate of need be denied. The application was then presented to the Regional Council, Florida panhandle Health Systems Agency, Inc., and on May 25, 1979, the Regional Council recommended the approval of the certificate of need to serve Escambia, Santa Rosa and Okaloosa Counties, Florida, with the proviso that services be offered Medicare and Medicaid patients. On June 29, 1979, the Respondent in the person of Art Forehand, Administrator of the Office of Community Medical Facilities, attempted to apprise the Petitioner that the request for a certificate of need had been denied; however, this correspondence was misaddressed and it was not until July 9, 1979, that a letter was forwarded to an official of Petitioner's organization and received by that official. On July 31, 1979, the Petitioner appealed the decision of denial of the certificate of need and the case was later assigned to the Division of Administrative Hearings for consideration which resulted in the hearing which is the subject of this Recommended Order. (The details of the various items discussed in developing the chronology of this application may be found in the Joint Composite Exhibit No. 1 admitted into evidence.) In offering its proof to demonstrate the entitlement to a certificate of need, the Petitioner essentially attempted to refute the Department of Health and Rehabilitative Services', hereinafter referred to as "Department", letter of notification of denial. That letter gave five reasons for denying the certificate of need, those reasons being: The proposed project is inconsistent with the Florida Panhandle Health Systems Agency 1979 Health Systems Plan policy guide regarding physical location of a home health agency in the area it intends to serve. The proposal is not consistent with standards and criteria established in Chapter 10-5.11(14), Rules of the Department of Health and Rehabilitative Services. Extenuating and mitigating circumstances which may be considered in approving a certificate of need for a new home health agency have not been adequately demonstrated. There are other available and adequate home health care service providers in the proposed service area which could serve as an alternative to the proposed project and prevent unnecessary duplication of resources. Financial feasibility data do not clearly reflect the inclusion of Medicare and Medicaid resources. The initial reason for denial deals with the claim that the Health Systems Plan for the Florida Panhandle, adopted December 15, 1978, does not allow service of three counties from one central office in Pensacola, Florida. The disputed language in that document is found in Chapter IV at page 216, and it states: No home health agency may be issued a license to operate in a Florida county without having applied for and been granted a certificate of need. The Office of Community Medical Facilities of the Department of Health and Rehabilitative Services considers the recommendation of the Health Systems Agency and established criteria in determining need. Certificates are now issued for a single-county service area, but prior to legislation passed in 1977, an agency could obtain a certificate for several counties. This inconsistency has created considerable confusion in determining need. Although the comment in the document is reluctantly made, it does establish the necessity for the issuance of certificates of need for single-county service areas. This determination is reached, notwithstanding the Petitioner's argument that there is existing precedence for serving more than one county out of a single office. Although there are circumstances in Florida where this approach has been utilized, such service of a multi-county area from a single office would not be allowed on the occasion of the current application. The second reason for denying the certificate of need involves Rule 10- 5.11(14), Florida Administrative Code, which states: (14)(a) A Certificate of Need for a proposed new home health agency or subunit shall not be issued until the daily census of each of the existing home health agencies or subunits providing services within the health service area of the proposed new home health agency or subunit has reached an average of 300 patients for the immediate preceding calendar quarter unless the need for the proposed new home health agency or subunit can be demonstrated by application of the mitigating and extenuating circumstances in rule 10-5.11(14)(b) herein. (b) Mitigating and extenuating circumstances which must be met for the department to issue a certificate of need for a proposed new home health agency or subunit even though the previously described need determination procedure does not clearly indicate need are: Documentation that the population of the proposed service are is being denied access to home health care services in that existing home health agencies or subunits within the proposed service area are unable to provide service to all persons in need of home health care, or Documentation that approval of such proposed new home health agency or subunit would foster cost containment for all providers in the health service area. The Petitioner, in the course of this presentation, took issue with the survey method used by the employee who conducted the staff review of the application. Upjohn claimed that the data gathered on the question of the requirement for a 300 average daily patient census was incomplete and inaccurate. The Petitioner also questioned whether the rule as cited above could be followed in this hearing or should the prior rule which spoke in terms of the daily census of the aggregate of the existing home health agencies or subunits in determining the count of 300 patients be used. The current rule became effective on June 5, 1979, and that rule has application because it was effective at the time of this hearing. Turning again to the question of the formula in deriving the number of patients in the census of the proposed service area, even assuming incompleteness or inaccuracies in the staff evaluation performed by the Health System Agency, the proof offered by the Petitioner in the bearing does not show utilization in excess of the 300-patient census. There are two health agencies now delivering home health care in Escambia County. Northwest Florida Home Health Agency, Inc., is one of those agencies and in its last complete reporting quarter prior to the hearing, there is an indicated patient census for April, which was 71; for May it was 77; and for June it was 73, totaling 221 patients, thereby constituting an average census of 74. This statement of census was established through the testimony of Arthur Long, Executive Director of Northwest Florida Home Health Agency, Inc. (His organization serves only patients who are enrolled with his service group.) Ms. Marian Humphrey, a public health nursing supervisor for the Escambia County Health Department, established the census in Escambia County for that Health Department as serviced by the Visiting Nurses Association, Inc. Beginning in January, 1979, the census was 101 Medicare patients; 14 Medicaid patients; 2 CHAD-PUS patients; 9 private patients and 71 free patients, the latter category being patients who do not pay for services. In February, 1979, there were 164 Medicare patients; 16 Medicaid patients; 2 CHAMPUS patients; 7 private patients and 72 free patients. In March, 1979, there were 128 Medicare patients; 9 Medicaid patients; 2 CHAMPUS patients and 11 private patients. In April, 1979, there were 147 Medicare patients; 13 Medicaid patients; 2 CHAMPUS patients and 9 private patients. In May, 1979, there were 165 Medicare patients; 12 Medicaid patients; 3 CHAMPUS patients; 7 private patients and 88 free patients. In June, 1979, there were 148 Medicare patients; 10 Medicaid patients; 2 CHAMPUS patients; 10 private patients and 61 free patients. In July, 1979, there were 150 Medicare patients; 10 Medicaid patients; 2 CHAMPUS patients; 10 private patients and 77 free patients. In August, 1979, there were 134 Medicare patients; 11 Medicaid patients; 2 CHAMPUS patients; 14 private patients and 96 free patients. The above-cited statistics demonstrate that the two current servicing agencies in Escambia County, Florida, in the preceding full quarter of 1979 which would have been April, May and June, considered separately do not exceed the average of 300 patients for that calendar quarter, nor did the statistics show excess of 300 in other reported quarters. By its Exhibit No. 8, the Petitioner presented statistics on the patient census in Okaloosa County and Santa Rosa County. These statistics were gathered by Blue Cross of Florida. The statistics of the Blue Cross survey show the patient Census services rendered by the Okaloosa County Health Department. These statistics only deal with the years 1977 and 1978 and are, therefore, not current. The most recent quarter in the report on Okaloosa County Health Department shows that in the last quarter of 1978, in-October the patient census was 9; November, the patient census was 14, and in December the patient census was 21. There is a provision in the Blue Cross report which deals with the Northwest Florida Home Health Agency, Inc.; however, these findings of fact defer to the testimony of Mr. Long which showed that in 1979, there was a patient census in April of 36; in May, a patient census of 38 and in June, a patient census of 40, for an average census of 38. The Blue Cross report shows that Santa Rosa County Health Department is the only home health care provider in that county. The most recent census reflected in that report is for January, February and March of 1979. In January the patient census was 41, in February the patient census was 35, and in March the patient census was 33. Analyzing this statistical data provided dealing with Okaloosa and Santa Rosa Counties, although some of the information is not current, it does demonstrate that the census did not exceed the average of 300 patients for the quarters that were reported in either county. In closing out an examination of the discussion of point 2 of the reasons for denial, it is noted that the Blue Cross report deals with the patient census of the Escambia County Health Department but this report is not as current as the presentation by Ms. Humphrey and the Humphrey report is accepted in lieu of the Blue Cross report. Reason 3 for denying the certificate of need talks about the failure of the Petitioner to demonstrate extenuating and mitigating circum stances which would allow a certificate to be issued, notwithstanding the fact that the current service agencies do not exceed the average census of 300 patients for the calendar quarter. Again, that provision of Rule 10-5.11(14)(b), Florida Statutes, states: Mitigating and extenuating circumstances which must be met for the department to issue a certificate of need for a proposed new home health agency or subunit even though the previously described need determination procedure does not clearly indicate need are: Documentation that the population of the proposed service area is being denied access to home health care services in that existing home health agencies or subunits within the proposed service area are unable to provide service to all persons in need of home health care, or Documentation that approval of such proposed new home health agency or subunit would foster cost containment for all providers in the health service area. The first provision under that subsection deals with the inability of the existing health agency to provide services to persons in need of home health care. In examining the question of the ability of the current organizations to provide the necessary health care, Escambia County will be reviewed first. In Escambia County, the Northwest Florida Home Health Agency, Inc., requires that their patients be registered with the organization and their office is open Monday through Friday from 8:00 a.m. to 4:00 p.m. After 4:00 p.m. on weekdays and on the weekends, a registered nurse is on call through the utilization of a "beeper" system. These services only apply to Medicare patients enrolled with the organization. To be enrolled it is necessary for the enrollment to have been achieved through a request by a physician. The Escambia County Health Department is open from 8:00 a.m. to 4:30 p.m. Monday through Friday and serves all classes of patients. There are on- call nurses who work on weekends. The nurses are called by the utilization of the Nurses Directory for Escambia County. The exception to these statements is that two days a year the services of the Escambia County Health Department are not available due to holidays. At night during the week those persons who are patients of the Escambia County Health Department are instructed to arrange for emergency treatment in the Emergency Room or ambulatory care at West Florida Hospital, assuming those patients cannot wait until the following morning for attention. Northwest Florida Home Health Agency, Inc., services Okaloosa County from an office in Fort Walton Beach, Florida. The exact nature of those services is as set out in the discussion of the services provided to patients in Escambia County. The exact details of other current services offered in Okaloosa County and Santa Rosa County were not presented by the Petitioner. Consequently, it was not possible to determine whether those services are adequate. The only evidence that touched on the issue of adequacy of services was testimony offered by one Ruby Savage, who is a volunteer member of the Regional Board of the Northwest Florida Subdistrict Council and a participant in project reviews. She stated that in her opinion there was a need for 24-hour service in Santa Rosa County. This testimony standing alone was insufficient to identify the need for further home health care services. The Petitioner has asserted that the services spoken of in the preceding paragraphs are not sufficient and examples of the lack of available services, according to the Petitioner, are shown on pages 65 through 68 of the transcript of the hearing. Therein are cited several examples of persons unable to receive necessary care of the type which the Petitioner desires to deliver. These examples are accounts given by Ms. Krumel from information purportedly given to her on the subject of the lack of service. Ms. Krumel in the course of the hearing made further comments to the effect that the individuals involved in the project review felt that the services in the question area were insufficient. Those opinions, while they may be true, are not the quality of evidence needed to sustain the Petitioner's contention that there is a need for further health care service in the area in question. The Petitioner made no further presentation on the question of lack of service and on balance the Petitioner has failed to show lack of service. The Petitioner offered testimony on the possibility of the utilization of population increases in the area as a criterion for increasing home health care services. While this criterion formerly appeared in Rule 10-5.11(14)(b), Florida Administrative Code, under the provisions of extenuating and mitigating circumstances, it is not found in the current statement of that rule and may not be used as a criterion for gaining the certificate of need. In discussing the issue of cost containment as outlined in the above- cited rule, the Petitioner made a general comment that if further services are not provided, patients will be required to receive services at emergency rooms, thereby voiding the possibility of cost containment which could be offered by granting the certificate of need to this Petitioner, who is willing to provide 24-hour home health care services. This statement standing alone is insufficient to show that the granting of the certificate of need to the Petitioner will foster cost containment. Finally, the fifth reason for denying the certificate of need was premised upon the failure of the Petitioner to provide financial feasibility data reflecting the inclusion of Medicare and Medicaid resources. The requirement for such data is found in Rule 10-5.09(5), Florida Administrative Code, which states: (5) Documentation showing that the project is financially feasible and can be accommodated without unreasonable charges for services rendered to include a projection of income and expense on a pro forma basis for the first two years of operation after completion of the project. Petitioner claimed at the hearing that it has failed to include this data because the inclusion of Medicare and Medicaid patients in its proposed services was a last minute item and no one in the evaluation process told them that they had to comply with this provision. At the time of the hearing the data was yet to be provided. Upjohn and Personnel Pool were afforded an opportunity to offer their testimony to establish in what respects they might be superior to the other applicant for a certificate of need, assuming that only one certificate of need was to be granted. The two Petitioners did not wish to make any direct attack on the special qualifications of the collateral Petitioner. Both parties proceeded on the basis of offering their remarks to be available for comparison if the contingency were realized which required that only one certificate of need be issued. It is not necessary to detail the special qualifications of these Petitioners, because no certificate of need will be recommended for issuance in Escambia County, Florida, the location in which Upjohn and Personnel Pool are potential competitors for a sole certificate of need. Nonetheless, the facts offered in support of the special qualifications of Upjohn may be found in the transcript of record, pages 187 through 190. The testimony on Personnel Pool's special qualifications may be found in the transcript of the hearing on pages 228 and 251 through 256.
Recommendation This recommendation is being entered in view of the Facts and Conclusions of Law in this case and those Facts and Conclusions of Law in the companion case, D.O.A.H. No. 79-1748, Personnel Pool of Pensacola, Inc. d/b/a Medical Personnel Pool v. State of Florida, Department of Health and Rehabilitative Services. Upon consideration of the Facts herein and the Conclusions of Law, it is recommended that the Petitioner, Upjohn Healthcare Home Health Agency be denied its request for a certificate of need to serve Escambia, Okaloosa and Santa Rosa Counties, Florida. It is further recommended that the agency in entering its final order do so by a process of simultaneous review of this Recommended Order and the Recommended Order entered in D.O.A.H. Case No. 79- 1748, Personnel Pool of Pensacola, Inc. d/b/a Medical Personnel Pool v. State of Florida, Department of Health and Rehabilitative Services, and that final orders be entered on the same date with copies to be served on the representatives of each applicant in this case and in the companion case mentioned above. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Vivian Krumel, R.N. Mr. Art Forchand, Administrator Service Director Office of Community Medical Facil. Upjohn Healthcare Services Department of Health and 15 West Strong Street Rehabilitative Services Old Townhouse Square 1323 Winewood Boulevard Pensacola, Florida 32501 Tallahassee, Florida 32301 Mr. John Owens Mr. Joe Dowless Zone Manager, West Florida Office of Licensure and Cert. Upjohn Health Care Services Department of Health and 3118 Gulf to Bay Blvd. Rehabilitative Services Clearwater, Florida 33519 Post Office Box 210 Jacksonville, Florida 32202 Charles T. Collette, Esquire Departnt of Health and Mr. Herbert E. Straughn Rehabilitative Services Office of Cozmunity Medical Facil. 1323 Winewood Boulevard Department of Health and Tallahassee, Florida 32301 Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32301 Sherrill E. Phelps Governmental Affairs Representative Personnel Pool of America, Inc. 303 Southeast 17th Street Fort Lauderdale, Florida 33316 Mr. Thomas S. Siler Owner/Administrator Personnel Pool of Pensacola, Inc. 1800 North Palafox Street Pensacola, Florida 32501
The Issue At issue in this proceeding is whether Respondent committed the offense set forth in the Administrative Complaint and, if so, what penalty should be imposed.
Findings Of Fact The parties Petitioner, Department of Health, Division of Medical Quality Assurance, Board of Medicine (Department), is a state agency charged with the duty and responsibility for regulating the practice of medicine pursuant to Section 20.43 and Chapters 455 and 458, Florida Statutes. Respondent, Pedro Rene Benitez, M.D., is, and was at all times material hereto, a licensed physician in the State of Florida, having been issued license number ME 53453. On or about November 12, 1997, a true bill was returned by a grand jury in the United States District Court, Southern District of Florida, Case Number 97-574-Cr-LENARD, which charged Respondent, as well as numerous co-defendants, with, inter alia, conspiracy to defraud the United States by making false claims to the United States Department of Health and Human Services in its administration of the Medicare program, contrary to the provisions of 18 U.S.C. § 371.1 Pertinent to this case, Count I of the Superseding Indictment charged Respondent, together with eighteen other persons or organizations, as follows: COUNT I (CONSPIRACY: 18 U.S.C. § 371) From in or about January 1991, the exact date being unknown to the Grand Jury, and continuing through in or about October 1993, in Dade County, in the Southern District of Florida and elsewhere, the defendants . . . did knowingly and willfully combine, conspire, confederate, agree, and reach a tacit understanding with each other and with persons known and unknown to the Grand Jury, to commit offenses against the United States, as follows: (a) to defraud the United States by impeding, impairing, obstructing, and defeating, through deceitful and dishonest means, the lawful government functions of the United States Department of Health and Human Services (HHS) in its administration of the Medicare program, in violation of Title 18, Unites States Code, Section 371. . . . GENERAL ALLEGATIONS At all times material to this Indictment: THE MEDICARE PART A PROGRAM AND REGULATIONS The Medicare program was a Federal program that helped pay for health care for the aged, blind and disabled. The Medicare program was administered by HHS, through its agency, the Health Care Financing Administration ("HCFA"). Medicare, through the Medicare "Part A" program, covered certain eligible home health care costs for medical services provided by "home health agencies", commonly referred to as "providers", to persons who qualified for Medicare and who required home health services because of an illness or disability that caused them to be homebound. . . . HCFA contracted with private insurance companies to administer the Medicare Part A program throughout the United States. In the State of Florida, HCFA contracted with Aetna Medicare Administration of Clearwater ("AETNA"). As administrator, AETNA was to receive, adjudicate and pay claims submitted by home health agencies and providers under the Part A program. * * * Under the Medicare Part A program, home health agencies possessing the required CON were reimbursed for reasonable costs and overhead expenses incurred for direct patient care. The Medicare Part A program reimbursed 100% of the allowable charges for participating agencies providing home health care services only if the patient: (a) was confined to the home; (b) was under the care of a physician who determined the need for home health care and set up a written home health plan, known as a Home Health Certification and Plan of Treatment; and (c) was in need of skilled nursing care on an intermittent basis, required physical or speech therapy, or had a continuing need for occupational therapy. Medicare Part A regulations further required home health agencies providing services to Medicare patients to maintain complete and accurate medical records reflecting the medical assessment and diagnoses of their patients, as well as records documenting actual treatment of the patients to whom services were provided and for whom claims for reimbursement were submitted by the home health agency. These medical records were required to be sufficiently complete to permit Medicare, through AETNA, to review the appropriateness of Medicare payments made to the home health agency under the Part A program. Among the written records necessary to document the appropriateness of home health care claims submitted under Part A of Medicare was a Home Health Certification and Plan of Treatment (HCFA Form 485) (hereinafter referred to as "POT"), signed by an attending physician certifying that the patient was confined to his or her home and was in need of the planned home health services. Moreover, any substantial changes to the POT, or the provision of any home health services beyond a two-month (62 days) period from the date of the original certification, required a re-certification by the attending physician of the need for these changed or additional home health services. Additionally, Medicare Part A regulations required home health agencies to maintain medical records of each visit made by a nurse or home health aide to a patient. The record of a nurse's visit was required to describe, among other things, any observed significant signs or symptoms, any treatment and drugs administered, any reactions by the patient, and any changes in the patient's physical or emotional condition. These written medical records generally were created and maintained in the form of "skilled nursing notes" and "home health aide observations." * * * HOME HEALTH AGENCIES INVOLVED Defendant MEDERI OF DADE COUNTY, INC. ("MEDERI DADE COUNTY") was a home health care provider, incorporated in the State of Florida ("Florida") and certified by the Florida Agency for Health Care Administration (AHCA). Defendant MEDERI DADE COUNTY was located in Coral Gables, Florida and possessed Medicare Provider Number 10-7087. Mederi of Miami Lakes, Inc. ("Mederi Miami Lakes") was a home health care provider, certified by the Florida Division of Health and Quality Assurance. Mederi Miami Lakes, which was a branch of defendant MEDERI DADE COUNTY, was located in the Miami Lakes area of Dade County, Florida and possessed Medicare Provider Number 10-7380. THE DEFENDANTS * * * * * * 43. Defendant PEDRO RENE BENITEZ was a resident of Dade County, Florida and a licensed physician. * * * PURPOSE OF THE CONSPIRACY 53. It was the purpose and object of the conspiracy for the defendants to enrich themselves by fraudulently inducing HHS to pay defendant MEDERI DADE COUNTY and Mederi Miami Lakes millions of dollars in Medicare Part A reimbursements for purportedly legitimate home health care claims and expenses, which claims and expenses the defendants knew to be false, fictitious, fraudulent and otherwise non-reimbursable in that, as the defendants well knew, the services were not actually provided or were provided to persons who the defendants knew were not qualified to receive Medicare home health care benefits. MANNER AND MEANS OF THE CONSPIRACY The manner and means by which the defendants sought to accomplish the purpose and object of the conspiracy included the following: * * * . . . defendants SUSAN REGUEIRO, LEOPOLDO PEREZ, JORGE PEREZ, MANUEL DIAZ, NORA COSTA, JESUS RODRIGUEZ, ERNESTO MONTANER, NILDA MIRANDA and RAUL CABRERA participated in the recruitment of licensed physicians, including defendants EDUARDO CUNI, PEDRO RENE BENITEZ, AGUSTIN GRANDA, JESUS OLIVA and JORGE MORENO, to sign fabricated and fictitious POT forms in exchange for cash and other financial benefits. In addition to directing the fabrication of POT forms, defendants SUSAN REGUEIRO and LEOPOLDO PEREZ, with the knowledge and concurrence of defendants JORGE PEREZ, MANUEL DIAZ, NORA COSTA, JESUS RODRIGUEZ, ERNESTO MONTANER, EDUARDO CUINI, PEDRO RENE BENITEZ, AGUSTIN GRANDA, JESUS OLIVA and JORGE MORENO, used employees of defendant MEDERI DADE COUNTY and Mederi Miami Lakes to generate the following fictitious supporting documentation, including: (a) records necessary to support the payments made to the nursing groups by defendant MEDERI DADE COUNTY and Mederi Miami Lakes for the claimed visits, including billing sheets, final matched itinerary/bill reports, and group batch worksheets; and (b) records necessary to support defendant MEDERI DADE COUNTY's and Mederi Miami Lakes' billing of those visits to Medicare. * * * 68. Defendants SUSAN REGUEIRO and LEOPOLDO PEREZ, with the knowledge and concurrence of defendants JORGE PEREZ, MANUEL DIAZ, NORA COSTA, JESUS RODRIGUEZ, ERNESTO MONTANER, EDUARDO CUNI, PEDRO RENE BENITEZ, AGUSTIN GRANDA, JESUS OLIVA, JORGE MORENO, JESUS PUNALES, ELISA GAVILLA, LYDIA GUADALUPE, JULIA GARCIA and NILDA MIRANDA, used employees of defendant MEDERI DADE COUNTY and Mederi Miami Lakes to process and submit to Medicare the false claims for home health visits originating from the nursing groups. * * * OVERT ACTS In furtherance of the conspiracy, and to accomplish its objects, at least one of the co-conspirators committed or caused to be committed, in the Southern District of Florida, and elsewhere, at least one of the following overt acts, among others: * * * CREATION OF FALSE DOCUMENTATION BY MEDERI EMPLOYEES * * * 48. On or about June 4, 1992, defendant PEDRO RENE BENITEZ caused his signature to be affixed on a POT form for a patient identified by the initials N.J. * * * On or about December 14, 1992, defendants SUSAN REGUEIRO, LEOPOLDO PEREZ, JESUS RODRIGUEZ and PEDRO RENE BENITEZ caused an employee of Mederi Miami Lakes to create a POT for a patient identified by the initials F.D. On or about December 14, 1992, defendants SUSAN REGUEIRO, LEOPOLDO PEREZ, JESUS RODRIGUEZ and PEDRO RENE BENITEZ, caused the signature of a licensed physician, defendant PEDRO RENE BENITEZ, to be affixed to a POT form for F.D. On or about December 14, 1992, defendants SUSAN REGUEIRO, LEOPOLDO PEREZ, JESUS RODRIGUEZ and PEDRO RENE BENITEZ caused employees of Mederi Miami Lakes to complete nineteen (19) false "skilled nursing notes" pertaining to F.D. * * * SUBMISSION OF FALSE CLAIMS * * * 93. On or about October 14, 1992, defendants SUSAN REGUEIRO, LEOPOLDO PEREZ, PEDRO RENE BENITEZ and LYDIA GUADALUPE caused an employee of Mederi Miami Lakes to submit a false home health claim in the amount of $2,700.00 to Medicare, through Aetna, pertaining to a patient identified by the initials M.G. (Emphasis added.) The false documentation Respondent made, presented and filed, or caused to be made, presented and filed, with the United States Department of Health and Human Services, through AETNA, for Medicare reimbursement for home health care visits resulted in a loss to the government with regard to patient N. J. of $500.00, with regard to patient F. D. of $4,600.00, and with regard to patient M. G. of $2,700.00, for a total loss of $7,800.00. For the creation of such false documentation, Respondent averred, at hearing, that he was paid "75.00 per beneficiary." (Transcript, page 22.) On April 27, 1998, consistent with a plea agreement Respondent had entered into with the United States Attorney for the Southern District of Florida (Petitioner's Exhibit 3), Respondent entered a plea of guilty to Count I of the Superseding Indictment ("Conspiracy to Defraud the United States, by making false claims to the [United States Department of] Health and Human Services in its administration of the Medicare program," contrary to 18 U.S.C. § 371), and on April 19, 1999, Respondent was adjudicated guilty of such offense. (Petitioner's Exhibit 4.) For such offense, given his cooperation with the United States attorney, discussed infra, Respondent was given a split sentence of 14 months, consisting of a term of imprisonment of 7 months, followed by 7 months of participation in the Home Detention Electronic Monitoring Program. Upon release from imprisonment, Respondent was to serve a term of 2 years on supervised release. Special conditions of supervision imposed by the judgement of conviction included the following: Effective immediately, the defendant shall surrender his medical license to the U.S. Probation Office. The U.S. Probation Office shall submit the license to the appropriate regulatory agency. The defendant shall not serve as a doctor or be employed or act in any capacity at any type of medical services, whether it be as a doctor, physician assistant or an administrator. The defendant shall not have any interest, directly or indirectly, in any medical businesses, whether it be medical services or medical supplies. The defendant shall notify the State Board of Medicine of his conviction and sentence in this case, and of the fact that his medical license has been taken by this Court. The defendant shall not participate in any Medicare/Medicaid billing procedures for any medical facility or program. Respondent was also ordered to pay, individually, restitution in the amount of $150,000.00 to the Palmetto Government Benefits Administration.2 The remaining charges (counts) against Respondent were dismissed (consistent with the plea agreement) on motion of the United States Attorney. On May 17, 1999, Respondent surrendered to the United States Marshal for the Southern District of Florida for commitment to the United States Bureau of Prisons to be imprisoned for a term of 7 months. Respondent apparently completed that term in or about December 1999, and as of the date of hearing (February 8, 2000) was serving his 7-month period of participation in the Home Detention Electronic Monitoring Program. According to Respondent, his term of supervised release (probation) is scheduled to end December 12, 2001. Circumstances related to aggravation or mitigation of any penalty Respondent has been actively engaged in the practice of medicine in the State of Florida from his initial licensure on June 22, 1988, until the Department suspended his license (on an emergency basis, as a consequence of the pending federal charges) on April 6, 1999.3 During such period, in addition to his active practice, Respondent volunteered his services (from 1998 until his license was suspended) two or three days a month to the Dade County Chapter of the American Red Cross; volunteered his services for 5 or 6 years as a member of the medical staff of "Camilla's House," an organization serving the homeless; and volunteered his services to the American Red Cross for treatment of the victims of Hurricane Andrew. Respondent has never previously been disciplined by the Board of Medicine, and notwithstanding his conviction, continues to enjoy the support of former patients and colleagues. With regard to the Mederi case, Respondent cooperated with the United States attorney and the Federal Bureau of Investigation, albeit not until investigators discovered (3 years after the events) his participation in the conspiracy, and confronted him with their findings; it appeared in his best interest to cooperate. Notwithstanding, consistent with the terms of his plea agreement, Respondent provided truthful information, testified on behalf of the government at trial, and proved to be a key witness in resolving the case favorably for the government. With regard to the strictures placed on his conduct under the terms of conviction, the proof demonstrates Respondent has complied with the Special Conditions of Supervision. Indeed, during the term of his imprisonment, Respondent was formally excluded from eligibility to participate in the Medicare, Medicaid, and all Federal health care programs; was barred from receiving payment, directly or indirectly, from the Federal Employees Health Benefit Program; and, surrendered his controlled substances privileges (Drug Enforcement Administration Certificate of Registration). As for restitution, there is no proof of record that Respondent has made any payment toward satisfaction of such obligation; however, it is also noted that Respondent was imprisoned from May 17, 1999, to on or about December 12, 1999, and, consequently, unemployed. As for his future plans, Respondent, given his training and experience, desires to resume the practice of medicine upon completion of his term of supervised release (December 12, 2001), provided the Department does not further restrict his licensure status.4 Such practice will, according to Respondent, allow him an opportunity to properly support his family,5 and it would also appear likely that such employment would accord Respondent an opportunity to satisfy, in whole or part, his obligation to pay restitution for his criminal offense.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be rendered adopting the foregoing Findings of Fact and Conclusions of Law, and which, for the violation found, imposes an administrative fine of $10,000.00; orders compliance with all terms of the judgment of conviction; and continues the suspension of Respondent's license for a term of 2 years following successful completion of his term of supervised release, followed by a 2-year period of probation on such terms and conditions as the Board may deem appropriate. DONE AND ENTERED this 25th day of May, 2000, in Tallahassee, Leon County, Florida. WILLIAM J. KENDRICK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 25th day of May, 2000.
Findings Of Fact Background At all times material to this proceeding, Redi-Care was a corporation doing business as a home health care agency in Florida and was duly licensed in that capacity by the Department. Prior to May 4, 1989, Redi-Care was not certified to receive payment for services provided to Medicaid recipients under the Florida Medicaid Program. At times, however, Redi-Care did provide services to Medicaid recipients under a waiver program involving "Home and Community Based Services." This program receives funding from a separate appropriation than the one administered by the Department for the Florida Medicaid Program. Since the sale of some of the corporate assets on July 31, 1990, Ms. Ingeborg G. Mausch, Ph.D., has been authorized by the corporation to proceed with the collection of the accounts receivable that remained with the corporation. This proceeding involves Redi-Care's request for payment from the Department for medical services provided to two Medicaid eligible recipients, Richard Mow and Claire Jester. The Florida Medicaid Program is jointly funded by the federal and state governments. The Department is the state agency responsible for the administration of Medicaid funds from both funding sources. To the extent monies are appropriated, the Department is authorized to provide payment for medical services given to Medicaid eligible recipients through certified home health care agencies. Consultec was awarded the contract to replace EDS as the provider of fiscal agent services and the Medicaid agent for the Florida Medicaid Program in 1988. Pursuant to the agreement, Consultec was to become responsible for the enrollment of new providers and the processing of claims on December 15, 1988. Prior to the assumption of the fiscal agent duties, Consultec was responsible for the re-enrollment of all existing Florida Medicaid Providers into the Florida Medicaid Management System as it had been redesigned by Consultec. Current enrollees were given new provider numbers to be used on all submissions made on or after the December 15, 1988 date. Any claims submitted prior to December 15, 1988 would be processed by Electronic Data Systems Corporation (EDS) under the provider numbers previously issued by that entity. As part of the re-enrollment program, Consultec also created vendor numbers for those home health care agencies involved in the waiver program. These vendor numbers are used within the Department's Developmental Services and Aging Adult Services operations. In the past, home health care providers have not had access to these numbers. Consultec sent Vendor Information Sheets to all providers within the HRS Developmental Services and Aging Adult Services Waiver Program for "Home and Community Based Services" on October 7, 1988. Redi-Care was listed as a provider with the waiver program at the time the vendor re-enrollment occurred. Upon receipt of the Vendor Information Sheet, Redi-Care certified that the information on the sheet prepared by Consultec was correct. The document was returned to Consultec, as requested on the form, on October 19, 1988. Unbeknownst to those providers who completed the form, Consultec was planning on issuing them vendor numbers. Although each of the providers had such vendor numbers in the past, these numbers were never specifically issued to them because the Department undertook the responsibility to complete that portion of the waiver program's documentation. Application Process Originally, Redi-Care applied for enrollment as a "Medicaid Provider" in 1987. This original application was abandoned by Redi-Care when it learned that a provider had to be Medicare eligible as well. Instead, Redi-Care became a provider of "Medicaid Home and Community Based Services" in the waiver program. In July of 1988, "Medicaid Providers" were no longer required to be Medicare eligible. Based upon this policy change, Redi-Care reapplied to the Department for enrollment as a "Medicaid Provider" who provides medical services to recipients of the Florida Medicaid Program. The enrollment application, known as a "Request for Certification," was completed by Redi-Care on September 7, 1988. Assurance of Compliance with Title VI of the Civil Rights Act of 1964 was attached to the application. The Ownership and Control of Interest Statement was completed by Redi-Care, but the evidence presented reveals that it may not have been included in the application documents sent to the Department's Office of Licensure and Certification on September 7, 1988, or shortly thereafter. Pursuant to the agreement still in effect between the Department and EDS on the date of the submission of the application, EDS was the Medicaid Agent responsible for the review and processing of Redi-Care's application to become a Florida "Medicaid Provider" once it was received by EDS from the Department's Office of Licensure and Certification. Because Redi-Care was already licensed as a home health agency, the Department's Office of Licensure and Certification was not required to grant a license prior to the transfer of this enrollment application to EDS. All that was required was a certification survey from this branch of the Department and a copy of Redi-Care's active license. When the Office of Licensure and Certification went to complete the survey, the representative of the Department confused this Redi-Care entity with an entity next door known as Redi-Care, Inc. Consequently, the Redi-Care corporation seeking certification as a "Medicaid Provider" was not surveyed as it had requested via all of the proper channels. As the Office of Licensure and Certification was unaware of its mistake regarding the Redi-Care entities, this Redi-Care application package was sent on to EDS for review and processing of the application without the documentation required from the Department. After a few weeks, because Redi-Care was generally familiar with the application process from its prior experience, the Department was contacted and the follow-up package was requested. Redi-Care was sent a copy of the Medicaid Provider Agreement, which was signed and returned to the Office of Licensure and Certification on or about November 18, 1988. Within a day or two after Redi-Care mailed the Medicaid Provider Agreement, a letter was received from Consultec which referred to Redi-Care as a "Medicaid Provider." Redi-Care was thanked for re-enrolling in the program and was issued a Florida Medicaid Provider number for Home and Community Based Services. In actuality, the letter from Consultec was providing Redi-Care with the vendor number described previously in these Findings of Fact for use in the waiver program. Redi-Care was unaware that such a number was to be issued because it had not received such a number in the past, nor was it advised that one was forthcoming. When Ms. Mausch read the letter on behalf of Redi-Care, she assumed it related to the recent reapplication for Medicaid certification submitted in September 1988. The first sentence of the letter thanking Redi- Care for "re-enrollment" was interpreted as an acknowledgement of the first application for enrollment which had been abandoned, and an appreciation of the facility's current decision to assist in the provision of home health care to Medicaid recipients. Because the body of the letter appeared to be tailor made to Redi-Care's recent decision to participate as a "Medicaid Provider", Redi- Care believed its pending application for enrollment had been approved. When the letter was read and interpreted by Ms. Mausch, she failed to notice that the letter was issued four days prior to Redi-Care's submission of the Medicaid Provider Agreement, and specifically referred to "Home and Community Based Services." This mistake does not dissuade the Hearing Officer from finding Redi-Care's interpretation of the document was reasonable in light of all of the surrounding circumstances under which it was read. The references to Redi-Care as a "Medicaid Provider" in this letter issued by Consultec was ambiguous. The technical term "Medicaid Provider" was misused in a generic sense. Although the more casual use of the term might not have been misleading to most providers in the waiver program, it was very misleading to Redi-Care, who was awaiting the issuance of a "Medicaid Provider" number from the Medicaid Program. At the time the Consultec letter of November 14, 1988 was issued, EDS was the Department's Medicaid agent responsible for the review and processing of Florida's "Medicaid Provider" applications. On December 5, 1988, EDS acknowledged its receipt of Redi-Care's application to become a Florida "Medicaid Provider." The application packet was returned to Redi-Care, who was advised that additional items needed to be available with the application for processing to occur. Redi-Care was required to submit a copy of the Ownership and Control of Interest Statement. The Office of Licensure and Certification was required to complete its certification survey and submit this, along with a copy of Redi-Care's active license. The requests made by EDS were questioned by Redi-Care for the following reasons: Consultec's letter of November 11, 1988, appeared to have already approved the Medicaid enrollment, and the Office of Licensure and Certification had already been notified by Redi-Care two months earlier, and should have sent a copy of the license and survey to EDS. Instead of calling EDS, Ms. Mausch contacted Consultec, who had recently issued the "Medicaid Provider" number. During the conversation with "Deborah" of Consultec, who represented she was able to speak to Ms. Mausch's concerns, Redi-Care was advised that it need not complete the directions issued by EDS because a "Medicaid Provider" number had already been assigned by Consultec. It is unknown what exactly was said by Ms. Mausch to "Deborah" which resulted in this reply. However, the advice from "Deborah" was accepted and relied upon by Redi-Care because it was very compatible with what Redi-Care was willing to do under the known circumstances and what it reasonably believed the facts to be. Neither Redi-Care nor EDS were advised of the Department's failure to conduct the certification survey. It is also unknown whether the Department was aware of its confusion of the two Redi-Care entities at this point in time. Shortly after the re-application was returned to Redi-Care by EDS, this Department agent was relieved of its responsibility to review and process Florida "Medicaid Provider" applications. This responsibility was transferred to Consultec, the new Medicaid agent. At the time of the transfer, Consultec interpreted the return of Redi-Care's application for further attachments as a rejection of the application by EDS. Therefore, no further action was taken by Consultec on the application because it was considered to be a resolved matter. It should be noted however, that Redi-Care had not been advised that its application had been rejected, nor was any completion deadline given before rejection would occur. Redi-Care heard nothing more about the application after the discussion with "Deborah", so it continued to rely upon the representation that the new Florida "Medicaid Provider" number had been properly issued by the new Medicaid agent, and that nothing more was currently required of Redi-Care prior to its acceptance of Medicaid eligible recipients. The Acceptance and Care of Medicaid Eligible Recipients Once Redi-Care began to hold itself out as a home health agency who could accept Medicaid eligible recipients under the Medicaid Program, Richard Mow and Claire Jester were referred by their physicians and accepted as clients. There is no dispute in these proceedings about the Medicaid eligibility of either Richard Mow or Claire Jester. Further, there is no dispute regarding the quality of medical care, the dates of services, the necessity for the services and the reasonableness of the amount of the bills submitted for claims review and processing under the Medicaid Program. Richard Mow and Claire Jester were accepted as clients and services were performed based upon Redi-Care's reliance upon the representation that Redi-Care had a valid "Medicaid Provider" number that would allow it to receive payment from Medicaid appropriations for the medical care of these two clients. The Department was aware of the acceptance of these two Medicaid eligible recipients as clients by Redi-Care. The Department was also aware that they were being provided medical services for which Redi-Care expected to be reimbursed by the Medicaid Program. The two clients also relied upon this method of payment for the medical services provided by Redi-Care as third-party beneficiaries to the purported agreement between Redi-Care and the Medicaid Program. The amount of the claim submitted for services provided to Richard Mow from February 8, 1989 through April 16, 1989 was $7,411.45. The amount of the claim submitted for services provided to Claire Jester from February 12, 1989 through April 30, 1989 was $753.83. The Submission of Claims and Claims Denial Redi-Care first submitted billings and notes for the claims involving Richard Mow and Claire Jester to Consultec on March 29, 1989. On April 11, 1989, Redi-Care contacted Elizabeth Campbell, a Human Services Program Specialist with the HRS Medicaid Program Office in Fort Myers, Florida. At the time Ms. Campbell was contacted, her job duties included claims resolution for providers in the home health and nursing home areas. The purpose of the phone call from Redi-Care was to ask Ms. Campbell to find out why it had not received word on its claim submission to Consultec for Richard Mow and Claire Jester. After Ms. Campbell researched the issue, she discovered that Redi-Care was not listed as a "Medicaid Provider" on the rolls maintained by Consultec. Redi-Care was ineligible for payment through Medicaid. Payment could be received only as a provider of "Home and Community Based Services" under the waiver program. When Redi-Care was advised that it did not have a "Medicaid Provider" number on April 11, 1989, the Department was told about the information given to Ms. Mausch by Consultec's letter and her follow-up conversation with "Deborah". Ms. Campbell, as a representative of the Department, assured Redi-Care that the matter would be pursued further. In the meantime, through its employees, the Department allowed Redi-Care to continue to rely on the representation that it would be paid at the Medicaid rates for the continuing care provided to Richard Mow and Claire Jester. On April 12, 1989, Ms. Campbell recorded in her field notes that she did not make any assurances to Redi-Care that it would be paid for providing services for the two clients. However, there is no evidence to show that she affirmatively advised Redi-Care that they might not get paid for past or continuing services. Redi-Care was allowed to continue to care for the clients under the the assumption that Medicaid would provide payment. On April 18, 1989, it was clear to Department employees involved in this factual scenario that the Office of Licensure and Certification had confused this Redi-Care entity with Redi-Care, Inc. when the survey and certification was scheduled to occur in November 1988. This mistake had never been corrected. On April 26, 1989, Consultec completed its review of the claims submitted by Redi-Care and denied the claims because Redi-Care did not have a "Medicaid Provider" number. Attempts to Cure Certification Issue The Office of Licensure and Certification completed its survey on May 4, 1989. Redi-Care's enrollment application was complete, and contained all of the required information on this date. Although no deficiencies were noted during the survey, the Department did not send a copy of the letter stating Redi-Care met its requirements until June 27, 1989. On that date, the letter was sent to Redi-Care, who was required to forward it to Consultec, along with the application Redi-Care had previously submitted with the attachments requested in December 1988 by EDS. Once Redi-Care received the letter in early July 1989, the information was immediately forwarded to Consultec. Consultec reviewed the application and issued Redi-Care a "Medicaid Provider" number on August 6, 1989. When Redi-Care received its "Medicaid Provider" number, it was advised by Consultec that it could use this number to submit billings to the Medicaid Program for eligible services provided since September 1988. Apparently, Consultect relied on the date EDS acknowledged receipt of the application and related the eligibility date to the 90 day period prior to the application receipt. On September 19, 1989, the Department issued a letter through the Program Administrator, Medicaid Program Office, advising Redi-Care that the Medicaid billings for Richard Mow and Claire Jester would not be paid by the Medicaid Program, even though these services were provided after the effective date of eligibility given to Redi-Care by Consultec in its letter of August 6, 1989. The Department's letter advising Redi-Care of the Medicaid Program's decision to deny payment for the services provided to the two Medicaid eligible recipients also told Redi-Care that its "Medicaid Provider" number could be used only for services rendered on or after May 4, 1989.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended: Redi-Care's application for enrollment as a "Medicaid Provider" be deemed complete on May 4, 1989. Redi-Care's eligibility period to submit claims as a "Medicaid Provider" should be listed as February 4, 1989, based upon the eligibility period set forth in the "Medicaid Provider Handbook, Home Health Care Services" in effect on the date the application was completed. The Department waive time limits for claims received beyond the usual 12 month period, as allowed in Rule 10C-7.030(6), Florida Administrative Code, based upon the unusual circumstances of this case because the circumstances pose an undue hardship on the provider or recipients. That the claims for services provided to Richard Mow and Claire Jester be re-submitted to Consultec for claims processing once the 12-month deadline is waived by the Department. That the amount of the reimbursement allowed to Redi-Care should be provided at the rates in effect at the time the services were rendered. RECOMMENDED this 11th day of June, 1991, in Tallahassee, Leon County, Florida. VERONICA E. DONNELLY 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 11th day of June, 1991. APPENDIX TO RECOMMENDED ORDER, CASE NO. 89-6923 Redi-Care's proposed findings of fact are addressed as follows: Accepted. See HO number 4. Accepted. See HO number 5. Accepted. Accepted. Accepted. Accepted. See HO number 15. Accepted. Accepted. Accepted. Accepted. Accepted. See HO number 40. Accepted. Accepted. See HO number 42. Accepted. See HO number 14 - number 27. Accepted. Accepted. Accepted. Accepted. Accepted. See HO number 45. Accepted. See HO number 29. Accepted. See HO number 38. Accepted. See HO number 35. Rejected. Contrary to fact. See HO number 5 - number 7 and number 16. Rejected. Contrary to fact and Redi-Care Exh. number 9. Rejected. See HO number 35 - number 38. Accepted. See HO number 39. Accepted. Rejected. Contrary to fact. Accepted. Rejected. Improper conclusion of law. Accepted. See HO number 32. Accepted. See HO number 33. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. See HO number 8. Accepted. Accepted. See HO number 8. Accepted. See HO number 9. Reject due to use of technical term "Medicaid Provider." See HO number 18. Otherwise, accepted. See HO number 15. Accepted. Accepted. See HO number 28. Accepted. See HO number 30 - number 31. Accepted. See HO number 34. Accepted. Accepted. Accepted. Accepted. Accepted. See HO number 5. Accepted. Accepted. Accepted. Accepted. See HO number 2. Accepted. See HO number 2. The Department's proposed findings of fact are addressed as follows: Accepted. See HO number 2. Accepted. See HO number 3. Rejected. Contrary to fact. See HO number 5. Accepted. See HO number 1. Accepted. See HO number 1. Accepted. See HO number 5, number 15 and number 16. Accepted. See HO number 6 and number 7. Accepted. See HO number 7. Accepted. Accepted. See HO number 15 and number 16. Accepted. See HO number 45. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Rejected. Irrelevant. Rejected. Conclusion of Law, not fact. Accepted. Accepted. Rejected. Contrary to fact. Accepted. See HO number 5. Accepted. Accepted. Accepted. Accepted. Accepted. See HO number 9. Accepted. See HO number 40. Accepted. Accepted. See HO number 43 - number 45. Rejected. Improper conclusion. Accepted. Accepted. See HO number 20. Accepted. See HO number 22 - number 24. Rejected. Contrary to fact. See HO number 27. Rejected. Irrelevant to this proceeding. Consultec's proposed findings of fact are addressed as follows: Accepted. See HO number 1 - number 2. Accepted. See HO number 3. Accepted. See HO number 3. Generally accepted, except for the dates of enrollment and claims processing. See HO number 4 and number 5. Accepted. See HO number 5 - number 7. Rejected. Conclusionary and contrary to fact. See HO number 15 - number 17. Accepted. See HO number 15 - number 17. Accepted. Rejected. Contrary to fact. See HO number 20. Accepted, except for the conclusion that this was a rejection letter. See HO number 20 and number 26. Reject the classification as rejection letter. Improper conclusion. See HO number 20. The rest of the paragraph is factually correct. See HO number 22 - number 24. Rejected. Irrelevant. Rejected. Improper definition of hearsay. Accepted. Accepted. See HO number 45. Accepted. See HO number 40. Accepted. See HO number 40. Rejected. Contrary to fact. See HO number 16, number 17 and number 27. COPIES FURNISHED: Karel Baarslag, Esquire Senior Attorney Department of Health and Rehabilitative Services 1317 Winewood Boulevard Building Six, Room 233 Tallahassee, Florida 32399-0700 Barry Roth, Esquire COHEN AND ROTH, P.A. 1375 Jackson Street, Number 201 Post Office Drawer 2650 Fort Myers, Florida 33902-2650 Ken Syler CONSULTEC, INC. 2002 A1 Old St. Augustine Road Post Office Box 5497 Tallahassee, Florida 32314-5497 R. S. Power, Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Linda K. Harris, Esquire General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700
