Findings Of Fact On February 4, 1980, the Office of Medicaid Quality Control advised Respondent that a review of his Medicaid claims revealed that he billed the Medicaid Program for psychiatric services and further advised him that only Board-certified or Board-eligible psychiatrists were entitled to bill the Program for such services. The letter further requested that Respondent provide Petitioner with a copy of his Board certification. (Although the letter admitted in evidence bears the date of February 4, 1979, it is obvious that the date contains a typographical error, since the letter pertains to services previously rendered in April of 1979, and refers to a rule which became effective January 1, 1980.) By letter dated February 8, 1980, Respondent replied, by advising Petitioner that he was neither Board-certified nor Board-eligible. Respondent included in his letter a recitation of his extensive experience and qualifications as a psychiatrist. In spite of Petitioner's failure to reply to his letter or to authorize him to do so, Respondent continued to bill Petitioner for psychiatric services rendered to Medicaid recipients, and Petitioner continued to pay Respondent's claims. During the summer of 1981, Petitioner determined that ineligible psychiatrists were billing the Medicaid Program for psychiatric services rendered to Medicaid recipients. In order to ascertain those qualified to bill the Program, form letters were sent to all providers of psychiatric services requesting documentation of Board eligibility or Board certification and further advising that only Board-certified or Board-eligible psychiatrists were entitled to bill the Program. On August 5, 1981, that form letter was sent to Respondent. On August 11, 1981, Respondent replied to the August 5 form letter by again advising Petitioner that he was not Board-certified or Board-eligible and his extensive background and qualifications as a psychiatrist. Although no reply was made to his August 1981 letter to Petitioner, Respondent continued to bill the Medicaid Program for psychiatric services, and Petitioner continued to pay Respondent's claims. Respondent is not presently, and has never been, a Board-certified psychiatrist or a candidate for Board certification. During the period from January 1, 1980, through February, 1982, Respondent billed for and was paid $38,252.75 by the Medicaid Program for providing psychiatric services to Medicaid recipients. Petitioner never advised Respondent that he was entitled to bill the Medicaid Program for providing psychiatric services to Medicaid recipients notwithstanding the fact that he was not a Board-certified psychiatrist or a candidate for Board certification.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered directing Respondent to reimburse to Petitioner the sum of $38,252.75 for payments received by him for psychiatric services rendered from January 1, 1980, through February, 1982. DONE and RECOMMENDED this 15th day of March, 1983, in Tallahassee, Leon County, Florida. LINDA M. RIGOT Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 15th day of March, 1983. COPIES FURNISHED: Robert A. Weiss, Esquire Medicaid Program Office Department of Health and Rehabilitative Services 1317 Winewood Boulevard, Suite 233 Tallahassee, Florida 32301 Bruce M. Boiko, Esquire 1000 Ponce de Leon Boulevard, Suite 212 Coral Gables, Florida 33134 David H. Pingree, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32301
The Issue Whether the Agency for Health Care Administration (Petitioner) is entitled to recover certain Medicaid payments made to Cape Memorial Hospital, Inc., d/b/a Cape Coral Hospital (Respondent).
Findings Of Fact Title XIX of the Social Security Act establishes Medicaid as a collaborative federal-state program in which the state receives federal funding (also known as “federal financial participation” or “FFP") for services provided to Medicaid- eligible recipients in accordance with federal law. The Florida statutes and rules relevant to this proceeding essentially incorporate federal Medicaid standards. The Petitioner is the state agency charged with administering the Medicaid provisions relevant to this proceeding. Section 409.902, Florida Statutes (2015)1/, states that the Petitioner is the “single state agency authorized to make payments” under the Medicaid program. The referenced statute limits such payments to “services included in the program” and only on “behalf of eligible individuals.” The Respondent is enrolled in the Florida Medicaid Program as a Medicaid Hospital Provider. The Respondent's participation in the Florida Medicaid Program is subject to the terms of a Medicaid Provider Agreement. The Respondent's Medicaid Provider Agreement requires compliance with all state and federal laws governing the Medicaid program, including the state and federal laws limiting Medicaid payments for services provided to undocumented aliens. Eligibility for Medicaid services is restricted to United States citizens, and to specified non-citizens who have been lawfully admitted into the United States. Pursuant to section 409.902(2)(b), Medicaid funds cannot be used to provide medical services to individuals who do not meet the statutory eligibility criteria "unless the services are necessary to treat an emergency medical condition" or are for pregnant women. The cited statute further provides that such services are “authorized only to the extent provided under federal law.” The relevant federal law (42 U.S.C. section 1396b(v)(3)) defines an "emergency medical condition" as: medical condition (including emergency labor and delivery) manifesting itself by acute symptoms of sufficient severity (including severe pain) such that the absence of immediate medical attention could reasonably be expected to result in-(A) placing the patient's health in serious jeopardy, (B) serious impairment to bodily functions, or (C) serious dysfunction of any bodily organ or part. The Florida definition of “emergency medical condition” set forth at section 409.901(10)(a) mirrors the federal definition. Pursuant to section 409.904(4), the Petitioner can make payments to a Medicaid provider on behalf of "a low-income person who meets all other requirements for Medicaid eligibility except citizenship and who is in need of emergency medical services" for “the period of the emergency, in accordance with federal regulations." The Florida Medicaid program requirements relevant to this proceeding were identified in the Florida Hospital Services Coverage and Limitations Handbook (incorporated by reference in Florida Administrative Code Rule 59G-4.160(2),), and in the Florida Medicaid Provider General Handbook (incorporated by reference in Florida Administrative Code Rule 59G-5.020.) The applicable Florida Hospital Services Coverage and Limitations Handbook provided as follows: The Medicaid Hospital Services Program reimburses for emergency services provided to aliens who meet all Medicaid eligibility requirements except for citizenship or alien status. Eligibility can be authorized only for the duration of the emergency. Medicaid will not pay for continuous or episodic services after the emergency has been alleviated. Similar provisions were contained in the Florida Medicaid Provider General Handbook. Section 409.913 requires that the Petitioner monitor the activities of Medicaid providers and to “recover overpayments.” The Petitioner’s Bureau of Medicaid Program Integrity (BMPI) routinely conducts audits to monitor Medicaid providers. Section 409.913(1)(e) defines “overpayment” to include “any amount that is not authorized to be paid by the Medicaid program whether paid as a result of inaccurate or improper cost reporting, improper claiming, unacceptable practices, fraud, abuse, or mistake.” The BMPI conducted a review of the Respondent's claims for services rendered to undocumented aliens during the period January 1 through December 31, 2006. The Respondent provided all documentation requested by the Petitioner necessary to review the claims addressed herein. As to each claim, the designated reviewing physician made a determination, based on the medical records, as to whether the claim was related to an emergency medical condition, and, if so, when the emergency medical condition was alleviated. Based on the evidence, and on the testimony of the physicians identified herein, the determinations of the physicians are fully credited as to the existence of emergency medical conditions and as to when such conditions were alleviated. CLAIM #1 Dr. Thomas Wells reviewed Claim #1, which involved a length of stay from March 31 through April 10, 2006. Based upon his review of the medical records, Dr. Wells determined that an emergency medical condition existed on March 31, 2006, and that it had been alleviated as of April 6, 2006. CLAIM #3 Dr. Michael Phillips reviewed Claim #3, which involved a length of stay from May 27 through June 12, 2006. Based upon his review of the medical records, Dr. Phillips determined that an emergency medical condition existed on May 27, 2006, and that it had been alleviated as of May 28, 2006. CLAIM #4 Dr. Michael Phillips reviewed Claim #4, which involved a length of stay from January 15 through January 20, 2006. Based upon his review of the medical records, Dr. Phillips determined that an emergency medical condition existed on January 15, 2006, and that it had been alleviated as of January 17, 2006. CLAIM #5 Dr. Michael Phillips reviewed Claim #5, which involved a length of stay from March 4 through April 10, 2006. Based upon his review of the medical records, Dr. Phillips determined that an emergency medical condition existed on March 4, 2006, and that it had been alleviated as of March 7, 2006. CLAIM #6 Dr. Steve Beiser reviewed Claim #6, which involved a length of stay from June 15 through June 18, 2006. Based upon his review of the medical records, Dr. Beiser determined that an emergency medical condition existed on June 15, 2006, and that it had been alleviated as of June 16, 2006. CLAIM #7 Dr. Thomas Wells reviewed Claim #7, which involved a length of stay from June 15 through July 6, 2006. Based upon his review of the medical records, Dr. Wells determined that the emergency medical condition existed on June 15, 2006, and that it had been alleviated as of June 28, 2006.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency for Health Care Administration enter a final order finding a Medicaid overpayment of $57,350.67 related to the six claims identified herein. Pursuant to section 409.913(23), Florida Statutes, the Petitioner is entitled to recover certain investigative, legal, and expert witness costs. Jurisdiction is retained to determine the amount of appropriate costs if the parties are unable to agree. Within 30 days after entry of the final order, either party may file a request for a hearing on the amount. Failure to request a hearing within 30 days after entry of the final order shall be deemed to indicate that the issue of costs has been resolved. DONE AND ENTERED this 27th day of July, 2016, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 27th day of July, 2016.
Conclusions THE PARTIES resolved all disputed issues and executed a Settlement Agreement. The parties are directed to comply with the terms of the attached settlement agreement. Based on the foregoing, this file is CLOSED. DONE and ORDERED on this the a l ah, of fiderd , 2012, in Tallahassee, Leon County, Florida. 4% ‘ CA kh fo ELIZABETH DUDEK, SECRETARY Agency for Health Care Administration 1 Filed June 26, 2012 2:18 PM Division of Administrative Hearings A PARTY WHO IS ADVERSELY AFFECTED BY THIS FINAL ORDER IS ENTITLED TO A JUDICIAL REVIEW WHICH SHALL BE INSTITUTED BY FILING ONE COPY OF A NOTICE OF APPEAL WITH THE AGENCY CLERK OF AHCA, AND A SECOND COPY ALONG WITH FILING FEE AS PRESCRIBED BY LAW, WITH THE DISTRICT COURT OF APPEAL IN THE APPELLATE DISTRICT WHERE THE AGENCY MAINTAINS ITS HEADQUARTERS OR WHERE A PARTY RESIDES. REVIEW PROCEEDINGS SHALL BE CONDUCTED IN ACCORDANCE WITH THE FLORIDA APPELLATE RULES. THE NOTICE OF APPEAL MUST BE FILED WITHIN 30 DAYS OF RENDITION OF THE ORDER TO BE REVIEWED. Copies furnished to: Jeffries H. Duvall Assistant General Counsel Agency for Health Care Administration Office of the General Counsel (Interoffice) CYNTHIA A. MIKOS, ESQ. Allen Dell, P.A. 202 S. Rome Ave. - Suite 100 Tampa, FL 33606 cmikos@allendell.com (Electronic Mail) J.D. Parrish Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 Mike Blackburn, Bureau Chief, Medicaid Program Integrity Finance and Accounting Health Quality Assurance (via email) CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished to the above named addressees by U.S. Mail, Laserfiche or electronic mail on this the ZS" day of c JA » 2012. Richard Shoop, Esquire Agency Clerk State of Florida Agency for Health Care Administration 2727 Mahan Drive, MS #3 Tallahassee, Florida 32308-5403 (850) 412-3630/FAX (850) 921-0158 STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS STATE OF FLORIDA, AGENCY FOR HEALTH CARE ADMINISTRATION, Petitioner, vs. CASE NO. 11-5089MPI CI. NO. 11-1553-000 HILLSBOROUGH ASSOCIATION FOR RETARDED CITIZENS, INC., Respondent. / SETTLEMENT AGREEMENT STATE OF FLORIDA, AGENCY FOR HEALTH CARE ADMINISTRATION (‘AHCA” or “the Agency”), and Hillsborough Association for Retarded Citizens, Inc. (“PROVIDER”), by and through the undersigned, hereby stipulate and agree as follows: 1. The two parties enter into this agreement to memorialize the resolution of this matter. 2. PROVIDER is a Florida Medicaid provider, provider number 024102498 and was a provider during the audit period, January 1, 2009 to December 31, 2009. 3. In its Final Agency Audit Report (constituting final agency action) dated September 2, 2011, AHCA notified PROVIDER that review of Medicaid claims by the Division of Medicaid, Office of the Deputy Secretary, and Medicaid Program Integrity (MPI), Office of the AHCA Inspector General, indicated certain claims, in whole or in part, had been inappropriately paid. The Agency sought recoupment of this overpayment in the amount of $34,317.55. In response, PROVIDER filed a petition for formal administrative hearing. It was assigned DOAH Case No. 11-5089MPI. Hillsborough Association for Retarded Citizens, Inc. C.l. 11-1553-000 - Settlement Agreement 4. Subsequent to the original audit, in preparation for trial, AHCA re-reviewed the PROVIDER’s claims and evaluated additional documentation submitted by the PROVIDER. As a result of the additional review, AHCA determined the overpayment should be adjusted to $27,078.51, plus $5,415.70 in fines and $674.38 in costs for a total due of $33,168.59. 5. In order to resolve this matter without further administrative proceedings, PROVIDER and the AHCA agree as follows: (1) —AHCA agrees to accept the payment set forth herein in settlement of the overpayment issues arising from the captioned audit. (2) The amount in dispute that is now being resolved is twenty-seven thousand seventy eight dollars and fifty-one cents ($27,078.51) on the indebtedness, five thousand four hundred fifteen dollars and seventy cents ($5,415.70) in fines, plus six hundred seventy four dollars and thirty-eight cents ($674.38) in investigative costs for a total of thirty three thousand one hundred sixty eight dollars and fifty- nine cents ($33,168.59). PROVIDER will make an initial payment of eight thousand dollars ($8,000) and the remaining balance to be paid in 6 equal monthly installments. This amount due will be offset by any amount already received by the Agency in this matter. Furthermore, PROVIDER is advised that pursuant to Section 409.913, Florida Statutes, failure to pay in full, or enter into and abide by the terms of any repayment schedule set forth by the Agency may result in termination from the Medicaid program, withholding of future Medicaid payments, or other such remedies as provided by law. Any outstanding balance accrues at 10% interest per year. Full payment will fully and completely settle all claims in these proceedings before the Division of Administrative Hearings Hillsborough Association for Retarded Citizens, Inc. C.1. 11-1553-000 - Settlement Agreement 6. (DOAH Case No. 11-5089MPI). Should the provider’s enrollment with Medicaid be terminated, the full amount owed will be due within 30 days of termination. (3) In the event any interim payments are received or withheld, by whatever means, prior to the entry of the Final Order, Medicaid Accounts Receivable shall make the adjustment to credit such amounts, dollar for dollar, as quickly as is practicable. (4) Compliance with this repayment agreement fully and completely settles all claims in these proceedings before the Division of Administrative Hearings (DOAH Case No. 11-5089MPI). Should the provider’s enrollment with Medicaid be terminated, the full amount owed will be due within 30 days of termination. (5) PROVIDER and AHCA agree that full payment, as set forth above, resolves and settles this case completely. It will release both parties from any administrative or civil liabilities or claims arising from the findings in audit C.I. 11-1553-000. (6) PROVIDER agrees that it will not rebill the Medicaid Program in any manner for claims that were not covered by Medicaid, which are the subject of the audit in this case. Questions regarding procedures for submitting payment should be directed to Medicaid Accounts Receivable, (850) 412-3901. The C.I. number listed on the first page of this agreement must be legibly entered on the check to assure proper credit. Please mail payment to: AGENCY FOR HEALTHCARE ADMINISTRATION Medicaid Accounts Receivable — MS # 14 2727 Mahan Drive, Bldg. 2, Suite 200 Tallahassee, Florida 32308 Hillsborough Association for Retarded Citizens, Inc. C.1. 11-1553-000 - Settlement Agreement 7. PROVIDER agrees that failure to pay any monies due and owing under the terms of this Agreement shall constitute PROVIDER’S authorization for the Agency, without further notice, to withhold the total remaining amount due under the terms of this agreement from any monies due and owing to PROVIDER for any Medicaid claims. 8. AHCA reserves the right to enforce this Agreement under the laws of the State of Florida, the Rules of the Medicaid Program, and all other applicable rules and regulations. 9. This settlement does not constitute an admission of wrongdoing or error by either party with respect to this case or any other matter. 10. Each party shall bear its own attorneys’ fees and costs, with the exception that the Respondent shall reimburse, as part of this settlement, $674.38 in Agency costs and $5,415.70 in fines. This amount is included in the calculations and demand of paragraph 5(2). 11. The signatories to this Agreement, acting in a representative capacity, represent that they are duly authorized to enter into this Agreement on behalf of the respective parties. 12. This Agreement shall be construed in accordance with the provisions of the laws of Florida. Venue for any action arising from this Agreement shall be in Leon County, Florida. 13. This Agreement constitutes the entire agreement between PROVIDER and AHCA, including anyone acting for, associated with or employed by them, concerning all matters and supersedes any prior discussions, agreements or understandings; there are no promises, representations or agreements between PROVIDER and the AHCA other than as set forth herein. No modification or waiver of any provision shall be valid unless a written amendment to the Agreement is completed and properly executed by the parties. Hillsborough Association for Retarded Citizens, Inc. C.1. 11-1553-000 - Settlement Agreement 14. This is an Agreement of settlement and compromise, made in recognition that the parties may have different or incorrect understandings, information and contentions, as to facts and law, and with each party compromising and settling any potential correctness or incorrectness of its understandings, information and contentions as to facts and law, so that no misunderstanding or misinformation shall be a ground for rescission hereof. 15. | PROVIDER expressly waives in this matter its right to any hearing pursuant to sections 120.569 or 120.57, Florida Statutes, the making of findings of fact and conclusions of law by the Agency, and all further and other proceedings to which it may be entitled by law or rules of the Agency regarding this proceeding and any and all issues raised herein. PROVIDER further agrees that it shall not challenge or contest any Final Order entered in this matter which is consistent with the terms of this settlement agreement in any forum now or in the future available to it, including the right to any administrative proceeding, circuit or federal court action or any appeal. 16. This Agreement is and shall be deemed jointly drafted and written by all parties to it and shall not be construed or interpreted against the party originating or preparing it. 17. To the extent that any provision of this. Agreement is prohibited by law for any reason, such provision shall be effective to the extent not so prohibited, and such prohibition shall not affect any other provision of this Agreement. 18. This Agreement shall inure to the benefit of and be binding on each party’s successors, assigns, heirs, administrators, representatives and trustees. 19. All times stated herein are of the essence of this Agreement. Hillsborough Association for Retarded Citizens, Inc. C.|. 11-1553-000 - Settlement Agreement 20. This Agreement shall be in full force and effect upon execution by the respective parties in counterpart. ROUGH ASSOCIATION FOR RETARDED CITIZENS, INC. Dated: “A727 L ZZ 2012 py. UO CW “CCL FECL (Print name) ITS: SP OPC B22 20 Revi OLN 7 AGENCY FOR HEALTH CARE ADMINISTRATION 2727 Mahan Drive, Mail Stop #3 Tallahassee, FL 32308-5403 ‘ Dated: G/al 2012 Miller Inspector General Dated: bl f .2012 William H. Roberts Dated: Z f_,2012
Findings Of Fact Petitioner is a Florida Medicaid provider; provider number 100412. Respondent is the state agency responsible for administering the Florida Medicaid program pursuant to Section 409.901-409.920, Florida Statutes. Respondent reimburses hospitals for inpatient services supplied to Medicaid eligible recipients if the services are medically necessary. Services are medically necessary if: ". . . provided in a hospital on an inpatient basis [and cannot], consistent with the provisions of appropriate medical care, be effectively furnished more economically on an outpatient basis or in an inpatient facility of a different type." Florida Administrative Code Rule 10C-7.039. Respondent utilizes the 1986 Interqual ISD criteria to determine the medical necessity of services rendered by Medicaid providers. ISD is an acronym for severity of illness, intensity of service, and discharge screens. Severity of illness indicates the severity of the patient's condition on admission. Intensity of service relates to the diagnostic and therapeutic services the patient receives while hospitalized. Discharge screens indicate the patient's readiness for discharge. Petitioner had actual notice of the applicable ISD criteria to be used in determining Medicaid coverage for inpatient services. The amount of Medicaid benefits at issue in this proceeding, the patients, and the dates of hospitalization to which the benefits apply are as follows: (a) Laura Lakatos, 10/17/89 to 11/9/89, $13,351.27; Jeannette Moore, 3/19/90 to 3/24/90, $2,324.26; Catherine Rosa, 3/16/90 to 3/20/90, $580.49; Cheyenne Williams, 1/20/90 to 2/1/90, $3,482.94; Kimberly Williams, 2/20/90 to 3/6/90, $8,126.86; and (f) Gail Woodley, 8/28/89 to 9/28/89, $17,995.19 Ms. Laura Lakatos was admitted clinically intoxicated. Her drug screens showed cocaine metabolites. The ISD criteria in effect at the time of her admission required the patient to be comatose or in an impending comatose condition prior to any clinical findings and the presence of one of the following clinical findings: delirium and/or mania; impending delirium tremens; or seizures (withdrawal or toxic). Ms. Lakatos' condition upon admission satisfied none of the applicable ISD criteria. She was confused, delusional, and had slurred speech but was neither comatose nor suffering from an impending comatose condition. She did not suffer from impending delirium tremens or seizures. No evidence was introduced that she suffered from delirium and/or mania or was otherwise not in actual contact with reality. Ms. Lakatos could have been treated in more economical setting. Ms. Jeannette Moore's chief complaint on admission was pain in both thighs. The ISD criteria applicable to Ms. Moore at the time of admission required one of the following findings to be present in order to continue inpatient hospitalization for Medicaid reimbursement purposes: monitoring (at least every 2 hours); intravenous medications; or treatments of radioactive materials or plasma, surgery. Ms. Moore satisfied the ISD criteria for one day of inpatient services. On the second day, she did not meet the ISD criteria for intensity of service and should have been released. Ms. Catherine Rosa was admitted on March 16, 1990, to deliver her baby. She had a normal vaginal delivery for which Medicaid covers two days of hospitalization. Ms. Rosa did not satisfy the ISD criteria for continued hospitalization after March 17, 1990, and should have been released on March 18, 1990. Ms. Cheyenne Williams was admitted on January 20, 1990, and placed on a detoxification program with seizure precautions. She was given both oral and intramuscular medication for seizure prevention. While Ms. Williams satisfied applicable ISD criteria upon admission, none of the requisite clinical findings were present after January 24, 1990, and Ms. Williams should have been released from the hospital on January 25, 1990. Ms. Kimberly Williams was admitted on February 20, 1990, for drug addiction. She was agitated, depressed, had delusions of grandeur, a tremor, and an irregular gait. Her toxicology screen showed nicotine and cocaine metabolites. Mr. Williams did not meet the ISD criteria for admission. She was neither comatose nor suffering from an impending comatose condition. She did not meet ISD criteria of delirium and/or mania, impending delirium tremens, or seizures to warrant hospital admission. She could have been treated in a more economical setting. Ms. Gail Woodley was admitted on August 28, 1989, for drug addiction. She had slurred speech and tremors. Her toxicology screen showed cocaine metabolites. The uncontroverted evidence established that Ms. Woodley failed to meet the ISD criteria for inpatient services.
Recommendation Based upon the foregoing Findings RECOMMENDED that a Final Order be Respondent the following amounts: of Fact and Conclusions of Law, it is issued requiring Petitioner to reimburse Laura Lakatos $13,351.27 Jennette Moore $ 2,324.26 Catherine Rosa $ 580.49 Cheyenne Williams $ 3,482.94 Kimberly Williams $ 8,126.86 Gail Woodley $17,995.19 TOTAL $45,861.01 RECOMMENDED this 12th day of January 1993, at Tallahassee, Florida. DANIEL MANRY 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 12th day of January, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-1065 Petitioner's Proposed Findings of Fact 1.-2. Accepted in finding 1. 3. Accepted in finding 4. 4. Accepted in finding 5. 5. Accepted in finding 6. 6. Accepted in finding 4. 7. Accepted in finding 7. 8. Accepted in finding 8. 9. Accepted in finding 4. 10. Accepted in finding 9. 11. Accepted in finding 4. Rejected as irrelevant. Accepted in finding 9. Accepted in finding 4. Accepted in finding 11. Accepted in finding 12. Accepted in finding 4. 18.-19. Accepted in finding 13. Respondent's Proposed Findings of Fact 1.-2. Accepted in finding 1. 3.-5. Accepted in finding 2. 6. Rejected as irrelevant and immaterial. 7.-8. Accepted in finding 3. 9.-10. Rejected as irrelevnat and immaterial. 11. Accepted in finding 17. 12.-13. Accepted in finding 18. 14.-16. Rejected as irrelevant and immaterial. 17. Accepted in finding 4. 18. Accepted in finding 3. 19.-20. Rejected as irrelevant and immaterial. 21. Accepted in findings 5, 12-13. 22.-25. Acceepted in finding 5. 26.-28. Accepted in finding 7. 29. Accepted in finding 8. 30.-31. Accepted in finding 9. 32.-35. Accepted in finding 10. 36.-37. Accepted in finding 11. 38.-39. Accepted in finding 12. 40.-42. Accepted in finding 13. COPIES FURNISHED: Deborah A. Rogers, R.N. Administrative Director Utilization Management Hialeah Hospital 651 East 25 Street Hialeah, Florida 33013 Gordon B. Scott, Esquire Department of Health and Rehabilitative Services HRS Medicaid Office 1317 Winewood Boulevard Building 6, Room 234A Tallahassee, Florida 32399-0700 Robert L. Powell, Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Building One, Suite 407 Tallahassee, Florida 32399-0700 John Slye, General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Building One, Suite 407 Tallahassee, Florida 32399-0700
The Issue The issue in this case is whether the Respondent, Agency for Health Care Administration, is liable to Petitioner, Miriam Lara, M.D., for attorney's fees and costs pursuant to Section 57.111, Florida Statutes, and, if so, the amount of attorney's fees and costs Petitioner should be awarded.
Findings Of Fact Respondent, the Agency for Health Care Administration (hereinafter referred to as the "Agency"), is the agency of the State of Florida responsible for the administration of the Federal government's Medicaid program in Florida. Section 409.907, Florida Statutes. One of the duties imposed upon states in order to participate in the Medicaid program is the duty to terminate any approved Medicaid provider where the provider has been "convicted" of certain types of crimes. See Social Security Act, Section 1128(a)(1), 42 U.S.C. Section 1230a-7. In particular, 42 U.S.C. Section 1230a-7(a)(1) requires the mandatory exclusion from the Medicaid program of any individual or entity that has been "convicted" of a program- related crime: Any individual or entity that has been convicted of a criminal offense related to the delivery of any item or service under subchapter XVII of this chapter or under any State health care program. For this purpose, the term "convicted" is defined to include "participation in a . . . deferred adjudication, or other agreement or program where judgement of conviction has been withheld." 42 U.S.C. Section 1230a-7(i)(4). Petitioner, Dr. Miriam Lara, is a licensed medical doctor and an approved Medicaid provider in the State of Florida. On January 20, 1998, Dr. Lara was indicted for "Organized Fraud and Medicaid Fraud." A copy of the Arrest Warrant, Respondent's Exhibit 9, was provided to the Agency shortly after Dr. Lara's arrest putting the Agency on notice of the charges against her. On or about November 30, 1998,1 Dr. Lara entered into a "Deferred Prosecution Agreement and Speedy Trial Waiver" (hereinafter referred to as the "DPA") which was filed in the Circuit Court of the Eleventh Judicial Circuit of Florida, in and for Dade County. Dr. Lara agreed, in part, to the following in the DPA: I, [sic] understand that I have been tentatively accepted as a participant in the Pretrial Diversion Program, and that the charges against me will not be prosecuted so as [sic] long as I am a program participant in good standing and that my case will not come to trail during that time. While it is clear from the DPA that the charges against Dr. Lara were not to be prosecuted so long as she participated in the program, the DPA does not specifically state that the charges would be dropped if she completed the program. Although the DPA is not specific, the Office of the Statewide Prosecution and Dr. Lara intended, when they entered into the DPA that the charges would be completely dropped if Dr. Lara completed the Pretrial Diversion Program. On April 20, 1999, after Dr. Lara successfully completed the pretrial program,2 the Office of Statewide Prosecution nolle prossed all charges pending against her. In early 1999 the Agency became aware that Dr. Lara had entered into and completed some type of "pretrial program." Ellen Williams, a Medicaid/Healthcare Program Analyst for the Agency, was notified that Dr. Lara had completed what Ms. Williams understood to be a "pretrial intervention program." The Agency, through Ms. Williams, also became aware of the disposition of Dr. Lara's case some time during 1999. Ms. Williams was provided with a copy of a disposition record for Dr. Lara's case from the Clerk of the Circuit and County Court of the Eleventh Judicial Circuit of Florida. That disposition record, Respondent's Exhibit 11, states that the charges against Dr. Lara had been "NOLLE PROS . . ." on April 20, 1999. The Agency, through Ms. Williams, believed that all pretrial programs involved a program through which an individual charged with a crime could, by participating in the program, avoid being adjudicated "guilty" of the charged offense. Because the information contained on the disposition record provided to Ms. Williams indicated that the charges had been nolle prossed and, this appeared to be inconsistent with the Agency's belief that all pretrial programs result in adjudication being withheld, Ms. Williams attempted to find out precisely what had happened to the criminal charges against Dr. Lara. Ms. Williams first telephoned and spoke with Assistant Attorney General Hugo Acebo, whom she understood to be an attorney, about the matter. Ms. Williams was told by Mr. Acebo that Dr. Lara had entered into some type of pretrial program and that she had successfully completed the program. Ms. Williams did not recall being told by Mr. Acebo that the charges against Dr. Lara had been dropped. Nor did she recall being told that any plea had been entered by Dr. Lara or adjudication on the charges had been withheld. Consistent with the Agency's belief about the nature of pretrial programs, Ms. Williams assumed that Dr. Lara, by successfully completing the pretrial program, had merely avoided being adjudicated guilty of the offenses for which she had been charged. Ms. Williams did not understand that the charges against Dr. Lara had been dropped. On October 12, 1999, a Case Closing Report on Miriam Lara, M.D. (hereinafter referred to as the "Closing Report"), Case No. 04-96-03-0016, was issued by the Office of the Attorney General, Medicaid Fraud Control Unit, Fort Lauderdale Bureau. In pertinent part, the Closing Report states the following: According to Assistant Attorney General Hugo Acebo, Dr. Lara entered into a pretrial intervention (PTI) program, which she successfully completed in April 1998. The charges against her were then dropped. . . . (Emphasis added). Ms. Williams received a copy of the Closing Report. The Agency, therefore, had actual notice that the charges against Dr. Lara had been dropped, but Ms. Williams continued to incorrectly believe that, because the Closing Report indicated that Dr. Lara had entered into a "pretrial intervention (PTI) program, which she successfully completed . . . " she had been "convicted" of a criminal offense that is Medicaid program- related, consistent with the Agency's incorrect understanding of pretrial programs. Marie del Carmen Calzone, Esquire, who represented Dr. Lara at the time, spoke to Ms. Williams at least three times after the charges against Dr. Lara had been dropped. Ms. Calzone explained to Ms. Williams that the charges had been nolle prossed or dropped, that Dr. Lara had not entered any adverse plea to the charges, that "adjudication had not been withheld," and that Dr. Lara had not, therefore, been "convicted." Ms. Williams, however, incorrectly insisted that, because Dr. Lara had engaged in a pretrial program and successfully completed it, she had been "convicted" as that term is defined for Medicaid purposes. Based upon Ms Williams' understanding of the Agency's interpretation of the pertinent law, Ms. Williams drafted a letter notifying Dr. Lara that her participation in the Florida Medicaid program was being terminated (hereinafter referred to as the "Termination Letter"). The Termination Letter indicates that the decision to terminate Dr. Lara's participation in the Medicaid program was based upon the following: The Agency for Health Care Administration has received information from the Attorney General, Office of Statewide Prosecution that indicates the following: You were indicted on January 20, 1998, for Organized Fraud and Medicaid Fraud. On November 20, 1998, you entered into a pretrial intervention program, which resulted in a nolle prosequi of the charges. The Social Security Act at section 1128(a)(1) provides for the mandatory exclusion from participation in the Medicaid program of any individual or entity convicted of a criminal offense that is program-related. Section 1128(I)(4) defines convicted to include "when the individual or entity has entered into participation in a first offender, deferred adjudication, or other arrangement or program where judgment of conviction has been withheld." Section 1902(p)(1) of the Social Security Act provides for state authority to take action to exclude providers from the Medicaid program for the reasons cited in section 1128. The Termination Letter was signed on or about April 13, 2001, almost two years after the charges against Dr. Lara had been nolle prossed. The Termination Letter was provided to Dr. Lara. Dr. Lara disputed the Agency's proposed action to terminate her participation in the Medicaid program and filed a Petition for Formal Hearing Pursuant to Section 120.569, Fla. Stat. (2001) and Petition for Other Relief Under Fla. Stat. and F.A.C. (hereinafter referred to as the "Petition for Formal Hearing"). The Petition for Formal Hearing was filed with the Division of Administrative Hearing on July 13, 2001. The matter was styled Miriam Lara, M.D. vs. Agency for Health Care Administration, and designated DOAH Case No. 01-2789. On September 18, 2001, realizing that Dr. Lara had not been "convicted" of any charges, the Agency filed a Notice of Withdrawal of Final Agency Action in the Underlying Case. Consequently, an Order Closing File was entered the same day, canceling the scheduled final hearing of the Underlying Case and closing the file of the Division of Administrative Hearings. As stipulated to by the parties, the Agency is an "agency" as defined in Section 57.111, Florida Statutes; the Agency initiated an administrative proceeding against Dr. Lara; the Agency was not a nominal party; and Dr. Lara, a "small business party" as defined in Section 57.111, Florida Statutes, was the "prevailing party" in the Underlying Case by virtue of the filing of the Notice of Withdrawal of Final Agency Action. The amount of reasonable attorney's fees incurred by Dr. Lara in the Underlying Case exceed $15,000.00. On November 26, 2001, Dr. Lara filed a Renewed Petition to Determine Amount of Attorney Fees and Costs Pursuant to Section 57.111, Fla. Stat. (2001) and Other Relief Under Fla. Stat. and F.A.C. (hereinafter referred to as the "Renewed Petition"). An Attorney Fee Affidavit has been attached to the Renewed Petition in which it is represented that attorney's fees in the amount of $18,279.50 were reasonably incurred in the Underlying Case, but also recognizing that fees and costs are capped at $15,000.00 under Section 59.111(4)(d)2., Florida Statutes. The Renewed Petition was designated Case No. 01-4669F. The pertinent information available to the Agency at the time it sent the Termination Letter to Dr. Lara included the following: Dr. Lara had been charged with criminal offenses that are program related in January 1998; Dr. Lara entered into a "Deferred Prosecution Agreement" in November 1998; Dr. Lara successfully completed the pretrial diversion program. At no time did she enter any plea to the charges and, therefore, there was no adjudication on the charges; and As a consequence of having completed the pretrial diversion program, all charges against her were dropped in 1999. All information necessary to determine that Dr. Lara had not been "convicted" of charges related to the Medicaid program was available to the Agency before action was taken to terminate her participation in the Medicaid program.
The Issue The issues in the case are whether certain provisions of the Florida Medicaid Hospital Services Coverage and Limitations Handbook (Handbook) that exclude non-emergent services rendered in the emergency room from covered Medicaid outpatient services and require revenue Code 451 to be billed with CPT Code 99281 constitute an invalid exercise of delegated legislative authority within the meaning of Subsection 120.56(3), Florida Statutes (2010).1
Findings Of Fact AHCA is the Medicaid agency for the State of Florida as provided under federal law. § 409.901(2), Fla. Stat. “'Medicaid agency' . . . means the single state agency that administers or supervises the administration of the state Medicaid plan under federal law." § 409.901(15), Fla. Stat. AHCA must administer the Medicaid program pursuant to a state plan that is approved by the Center for Medicare and Medicaid Services (CMS). 42 U.S.C. §§ 1396 and 1396a(a). AHCA reimburses Medicaid providers in accordance with state and federal law, according to methodologies set forth in rules promulgated by AHCA and in policy manuals and handbooks incorporated by reference in the rules. AHCA has adopted Florida Administrative Code Rule 59G-6.030, which incorporates by reference the Florida Title XIX Outpatient Hospital Reimbursement Plan, Version XIX (the Outpatient Plan), with an effective date of July 1, 2009. Reimbursement to participating outpatient hospitals, such as Petitioners, is to be provided in accordance with the Outpatient Plan. AHCA has issued the Florida Medicaid Hospital Services Coverage and Limitations Handbook. The Handbook is incorporated by reference in Florida Administrative Code Rule 59G-4.160. The Outpatient Plan and the Handbook identify those outpatient hospital services that are covered by the Medicaid program by revenue code. Only those revenue codes listed in Appendix A of the Outpatient Plan (Appendix A) and Appendix B of the Handbook (Appendix B) are covered outpatient services. Petitioners have challenged the following provisions of the Handbook: Handbook at page 2-7: EMTALA Medical Screening Exam The federal Emergency Medical Treatment and Labor Act (EMTALA) requires emergency rooms to conduct a medical screening exam on any patient presenting to the emergency room for medical services . . . . If the medical screening exam determines that no emergency medical condition exists, Florida Medicaid reimburses only for the screening and the ancillary services required to make the determination (e.g., lab work or x-rays). Medicaid policy does not provide for reimbursement of non-emergency services beyond the medical screening exam required by EMTALA. Handbook at page 2-40: Non-Emergency Care in the Emergency Room Medicaid policy does not provide for reimbursement of non-emergency services beyond the medical screening exam required by Emergency Medical Treatment and Labor Act (EMTALA). EMTALA requires emergency rooms to conduct a medical screening exam on any patient presenting to the emergency room for medical services. The purpose of the medical screening exam is to determine if an emergency medical condition exists. If the screening determines that an emergency medical condition exists, the provider must either stabilize the condition or appropriately transfer the patient to a facility that can stabilize the condition. If the medical screening determines that no emergency medical condition exists, Florida Medicaid reimburses only for the screening and the ancillary services required to make the determination (e.g., lab work or x-rays). Recipients are responsible for a coinsurance on such claims. Handbook, Appendix B at pages B-6 and B-7: EMERGENCY ROOM 0450 General Classification Use General Classification code 0450 when recipients require emergency room care beyond the EMTALA emergency medical screening services. Code 0450 cannot be used in conjunction with 0451 (99281). All other appropriate and covered outpatient revenue codes can be billed with 0450 to reflect services rendered to the patient during the course of emergency room treatment. No MediPass authorization is required when billing 0450, if the type of admission in Form Locator 19 on the claims is "1" (Emergency). MediPass authorization is required when the condition of the patient is not an emergency. 0451(99281) EMTALA Emergency Medical Screening Services (Effective 7/1/96) Report the EMTALA Medical Screening code 0451 (99281) when, following the screening and exam, no further emergency room care or treatment is necessary. If ancillary services are not necessary to determine whether or not emergency or further treatment is required, report the ancillary charges using the appropriate revenue center codes in conjunction with code 0451 (99281). Note that 0451 (99281) cannot be used in conjunction with 0450. Effective 10/16/03, HCPCs code 99281 replaces code W1700, used prior to 10/16/03, when billing revenue code 0451. Florida Administrative Code Rule 59G-4.160 provides that the specific authority for the promulgation of the rule is Section 409.919, Florida Statutes, and the law implemented is Sections 409.905, 409.908, and 409.9081, Florida Statutes. Petitioners are acute care hospitals that are and were enrolled as Medicaid providers of outpatient service in Florida at all times material to this proceeding.
The Issue Whether Respondent, a Medicaid provider, committed the violations alleged in the agency action letter dated March 14, 2011, and, if so, the penalties that should be imposed.
Findings Of Fact At all times relevant to this proceeding, Respondent has been a provider with the Florida Medicaid Program and has had a valid Medicaid Provider Agreement with Petitioner. Petitioner is the agency of the State of Florida charged with the responsibility of administering the Florida Medicaid Program. At all times relevant to this proceeding, Respondent was subject to all applicable federal and state laws, regulations, rules, and Medicaid Handbooks. Respondent is required to comply with the Florida Medicaid Provider General Handbook (the General Handbook). The General Handbook requires a provider to have medical documentation that justifies the necessity of services provided to a recipient. The General Handbook advises that sanctions may be imposed if appropriate documentation is not kept. Respondent is an "Assistive Care Services" provider under the Florida Medicaid Program and is required to comply with the "Assistive Care Services Coverage and Limitation Handbook" (ACS Handbook). The ACS Handbook requires that each recipient of Assistive Care Services from the Florida Medicaid Plan have a RSP, and provides, in relevant part (at Petitioner's Exhibit 7, page 39): Every [Assistive Care Services] recipient must have a service plan completed by the [Assistive Care Services] service provider. . . . The ALF [is] responsible for ensuring the service plan is developed and implemented. The ACS Handbook further requires (at Petitioner's Exhibit 7, page 40): The Resident Service Plan for Assistive Care Services (AHCA-Med Serv [sic] Form 036) must be completed within 15 days after the initial health assessment or annual assessment, be in writing, and based on information contained in the health assessment. . . . The ACS handbook further provides (at Petitioner's Exhibit 7, page 40), that both the recipient (or the recipient's guardian or designated representative) and the ALF administrator (or the person designated in writing by the administrator) must sign and date the RSP. The RSP is considered complete as of the last date signed by either party. The provider (in this case Respondent) is responsible for timely completing the RSP for each Medicaid recipient in its facility. Inspector Marie Josue conducted an on-site visit to Respondent's premises on February 1, 2011. At the time of that inspection, Respondent reviewed a sample of ten RSPs for ten residents who received Assistive Care Services from the Florida Medicaid Program. Two of those ten RSPs had been timely signed and dated by the resident (or the resident's guardian or designee) and by Respondent's administrator (or the administrator's designee). The remaining eight RSPs had been timely signed and dated by the resident (or the resident's guardian or designee), but each had not been signed or dated by Respondent's facility administrator (or the administrator's written designee). Each RSP pre-dated February 1, 2011, by more than 15 days. The respective health assessments that formed the basis for each RSP occurred between March 23 and December 25, 2010. Respondent subsequently provided Ms. Josue with certain records that she had requested, including copies of the eight RSPs at issue in this proceeding. When she reviewed those records, Ms. Josue discovered that Respondent's administrator had signed and dated each previously unsigned RSP on February 1, 2011. Those signings by the administrator were untimely. Ms. Josue forwarded the results of her investigation to Mr. Dozier with a recommendation that Respondent be sanctioned for violating the provisions of section 409.913(15)(e), Florida Statutes, by the imposition of a $1,000.00 fine for each of the eight violations pursuant to Florida Administrative Code Rule 59G-9.070(7)(e). When she made her recommendation, Ms. Josue understood that the cited rule required a minimum fine of $1,000.00 per violation. Mr. Dozier accepted that recommendation and prepared the agency action letter dated March 14, 2011. Mr. Dozier consulted with two of his fellow administrators before concluding that the fine recommended by Ms. Josue was appropriate. He testified that he could have charged Respondent with violating section violating section 409.913(15)(d), which could have resulted in an administrative fine in the amount of $20,000.001/ Mr. Dozier considered an administrative fine in the amount of $8,000.00 to be more appropriate. Based on services provided to Medicaid patients pursuant to approved RSPs, Respondent submits claims to the Florida totaling between $6,450.00 and $9,200.00 per month. Petitioner routinely pays those claims. Each RSP at issue in this proceeding complied with the ACS Handbook except for the failure of the facility administrator (or designee) to timely sign the eight RSPs. RSPS are the guides to the services that will be provided by Respondent and reimbursed by the Medicaid Program by Petitioner. The requirement that the administrator (or designee) sign each plan is an effort to combat fraud. There was no evidence that the failure to sign the eight plans at issue in this proceeding was more than an error. Specifically, there was no evidence of fraud. There was no allegation that the lack of the administrator's signature on the eight plans at issue had any effect on the care provided to the eight Medicaid patients. Ms. Pace has been Respondent's administrator for over 13 years. Ms. Pace is familiar with RSPs and the rules and regulations governing the Florida Medicaid Program. Ms. Pace knew that the RSPs must be completed within 15 days of the assessment by a physician. Ms. Pace knew that the patient (or designee) and the administrator (or designee) must sign the RSP for it to be complete. Ms. Pace acknowledged that the eight RSPs at issue in this proceeding were not signed by anyone on behalf of the provider until February 1, 2010. Ms. Pace had designated a subordinate to sign the eight PSAs at issue in this proceeding on behalf of the provider. She had no explanation why those RSPs were not timely signed by anyone on behalf of the provider.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Agency for Health Care Administration enter a final order finding La Hacienda Gardens, LLC, guilty of the eight violations of section 409.913(15)(e) alleged in the agency action letter dated March 14, 2011. It is further recommended that the final order impose administrative fines in the amount of $1,000.00 per violation for a total of $8,000.00. S DONE AND ENTERED this 1st day of February, 2012, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 1st day of February, 2012.
Findings Of Fact At all times pertinent to this proceeding, Petitioner was a medicaid provider in the State of Florida. At all times pertinent to this proceeding John Whiddon was the Chief of Florida's Medicaid Program Integrity. Florida's Medicaid Program Integrity is charged with the oversight of the Medicaid program in Florida. The parties stipulated that Mr. Whiddon would have testified that the responsibility is ". . . basically to see that the Medicaid program gets what it pays for." The Florida Medicaid Program Integrity has the responsibility to protect Medicaid funds should an investigation reveal there is fraud or willful misrepresentation. Section 409.913(3), Florida Statutes, provides as follows: (3) Any suspected criminal violation or fraudulent activity by a provider, or by the representative or agent of a provider, identified by the department shall be referred to the Medicaid fraud control unit of the Office of the Auditor General for investigation. The Medicaid Fraud Control Unit (MFCU) is the agency with the statutory responsibility for criminal investigations in the Medicaid program. The Medicaid Program Integrity is a part of the Florida Department of Health and Rehabilitative Services. The MFCU is a part of the Office of the Auditor General, which is an agency of the legislative branch of government. On occasions, the MFCU advises Medicaid Program Integrity of a criminal investigation into a particular provider's activities. However, Medicaid Program Integrity is not told of the specific facts of the criminal investigation until after the case is prosecuted or until after the case is closed. The parties stipulated that Mr. Whiddon would testify that he is of the opinion that Section 409.913(7), Florida Statutes, prohibits MFCU from revealing anything about its investigation while the investigation is ongoing. Mr. Whiddon received a letter dated April 6, 1993, from John G. Morris, Jr., the Director of the Medicaid Fraud Control Unit, which referenced Petitioner as the provider, and which stated as follows: Pursuant to provisions of 42 CFR 455.23, this is to advise you that there is reliable evidence that the above referenced provider billed for home health care services that were not provided and this investigation will be referred for criminal prosecution. No specific facts of this criminal investigation were given to the Medicaid Program Integrity by the MFCU. The parties stipulated that Mr. Whiddon would testify that Program Integrity believes that the Petitioner will be prosecuted based upon the MFCU investigation as stated in the April letter, but that Mr. Whiddon concedes that any decision to prosecute is solely the decision of the prosecutor and may be declined. During the months of April, May, and June of 1993, the Petitioner continued to receive substantial Medicaid payments. These payments amounted to approximately $28,906 every week. Mr. Whiddon decided it was necessary to withhold Medicaid payments to the Petitioner until the MFCU investigation was completed. This decision was based solely on the MFCU letter of April 6, 1993, and his interpretation of his responsibility under 42 CFR 455.23. Mr. Whiddon directed Mike Morton to sign the Agency's letter to Petitioner dated June 29, 1993, because Mr. Whiddon was unavailable because of an unrelated special assignment. The letter dated June 29, 1993 provided, in pertinent part, as follows: PLEASE TAKE NOTICE that the undersigned has directed Consultec, the fiscal agent for the Department of Health and Rehabilitative Services, to withhold Medicaid payments to A-Community Home Health, Inc. in accordance with the provisions of 42 CFR 455.23. This action is being taken because of receipt of reliable evidence that the circumstances giving rise to the need for a withholding of payment involves fraud or willful misrepresentation. The withholding of payment will be temporary and will not continue after: The Department or prosecuting authorities determine that there is insufficient evidence of fraud or willful misrepresentation by A-Community Home Health, Inc., or Legal proceedings related to A-Community Home Health, Inc., alleged fraud or willful misrepresentation are completed. The type of Medicaid claims withheld are home health claims.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a Final Order which terminates the withholding of Medicaid payments from Petitioner and which reimburses Petitioner for payments that have been withheld. DONE AND ENTERED this 3rd day of November 1993, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of November 1993.
The Issue The issue for determination is whether Respondent was overpaid $312,773.67 for claims which, according to Petitioner, did not comply with Medicaid requirements.
Findings Of Fact Petitioner Agency for Health Care Administration ("AHCA") is the state agency responsible for administering the Florida Medicaid Program ("Medicaid"). At all relevant times, Respondent has been a Home and Community Based (HCB) Medicaid provider that is authorized to receive reimbursement for covered services rendered to Medicaid recipients. Developmental Disability Home and Community Based Services Waiver Program The alleged overpayment in this case relates to services Respondent provided through the Medicaid Developmental Disability Home and Community Based Waiver Program ("the Program"). As explained during Ms. Olmstead's final hearing testimony, the Program was established to help developmentally- disabled individuals remain in their homes or home-like settings within the community, as opposed to institutions such as nursing homes or intermediate care facilities. Medicaid recipients that desire to receive services through the Program undergo an initial evaluation performed by a waiver support coordinator. The support coordinator is a Medicaid provider that is selected by the Medicaid recipient or his or her guardian. To determine the services needed by the recipient to remain in the home, the support coordinator assesses the recipient by conducting an in-home visit. Upon completion of this initial assessment, the support coordinator formulates a "support plan," a document which describes the recipient's personality, likes, dislikes, strengths, and weaknesses, as well as the recipient's existing support system, such as family, friends, and neighbors. In addition, the support plan details the services the recipient needs to stay in the home and identifies who will provide the services. The expected costs of the proposed services are described on a form titled "cost plan," which, combined with the support plan, comprise the plan of care for the recipient. The support coordinator is required to submit the plan of care, as detailed in the support plan and cost plan, to the Department of Children and Families ("DCF"). If the plan of care is approved, DCF staff will create a "service authorization form." This form, which the support coordinator forwards to the service provider, describes the services to be rendered, as well as the duration and frequency of each service. Without the service authorization form, a provider cannot be assured payment from Medicaid. At least one time per year, the support coordinator must assess the recipient's needs, complete updated support and cost plans, and submit the updated plans for approval. If the updated plan of care is approved, DCF will draft a new service authorization form, which is forwarded to the provider by the support coordinator, along with copy of pertinent support plan information. Should the recipient's services or support require modification, the support coordinator is required to update the cost report and submit it for approval. Communication between the support coordinator and providers such as Respondent is encouraged, as the support coordinator reviews with the provider the goals to be achieved for the recipient. A service provider is expected to assist in establishing support plan outcomes for a recipient's goals and participate in the personal outcome process. Moreover, a service provider expressly consents to such communication by virtue of the provider's contract with Medicaid, which includes an agreement to participate in discussions with the support coordinator on matters such as a recipient's progress, the extent to which a recipient's needs are being met, and modifications to the recipient's support plan. The Preliminary Audit and Final Audit Exercising its statutory authority to oversee the integrity of Medicaid, Petitioner conducted a review or audit of Respondent's records to verify that claims paid by Medicaid during the period from January 1, 2003, through December 31, 2004 (the "audit period"), were billed and paid in accordance with Medicaid statutes, rules, and policies. As the average number of claims per recipient during the audit period was substantial, Petitioner utilized "two stage cluster sampling." This first stage involved a random selection of 34 receipts for whom Respondent submitted claims during the audit period. Next, from those 34 recipients, a total of 255 claims was randomly selected. On October 7, 2005, AHCA requested that Respondent provide "the documentation for services paid by the Florida Medicaid Program" in connection with the 255 claims that comprised the random sample. On or about October 21, 2005, Respondent submitted 37 packages of documents in response to Petitioner's request. Respondent also executed an affidavit which alleged that the documents were true and correct copies, and that the records were made at or near the time that the services were rendered. The documents submitted by Respondent were initially examined by Ms. Effie Green, a program analyst employed by Petitioner. Ms. Green immediately noticed that the records from at least some of the packages were covered in dust with a crystal-like appearance. Law enforcement officers called to the scene ultimately determined that the substance was harmless. There is no evidence that any of the records were tampered with or removed from Petitioner's offices during the investigation. On the contrary, the evidence demonstrates that the documents remained in Ms. Green's office until the dust was analyzed. Following the events described above, the audit of Respondent's records was delayed for approximately one year while an appeal, which involved a different Medicaid provider, was completed. The appeal, which was resolved in AHCA's favor, concerned the validity of the statistical formula utilized in calculating probable Medicaid overpayments.4 The responsibility of reviewing the documents provided by Respondent was later transferred to Ms. Robin Satchell, an investigator employed by Petitioner in the Bureau of Program Integrity. Prior to her employment with AHCA, Ms. Satchell worked for eight years as an HCB Medicaid provider. Ms. Satchell fully reviewed the records previously submitted on October 20, 2005, and also examined additional records subsequently provided by Respondent to verify that the claims paid during the audit period were billed and paid in accordance with Medicaid statutes, rules, and policies. Rules applicable to the claims reviewed in this case are enumerated in the Florida Medicaid Developmental Services Waiver Services Coverage and Limitations Handbook, and include: Only those services that have been identified in a recipient's plan of care and which have been approved and authorized prior to delivery are covered. Providers are limited to the amount, duration, and scope of the services described on the recipient's support plan and current approved cost plan. Only those services that are medically necessary are covered. Services furnished through the developmental disability waiver program are deemed to be medically necessary only if certain elements are present, including but not limited to the following: the service is not in excess of the recipient's needs; and, the service is furnished in a manner not primarily intended for the convenience of the recipient, the recipient's caregiver, or the provider. In order to receive payment for services, the provider must document the service appropriately. Documentation is a written record that supports the fact that a service has been rendered. Depending upon the particular service provided (e.g., Personal Care Assistance, Homemaker Services, Chore Services), the documentation requirements may vary and are detailed in the Florida Medicaid Developmental Services Waiver Services Coverage and Limitations Handbook. On May 24, 2007, AHCA issued a Final Agency Audit Report, which alleged that Respondent was overpaid $1,647,960.81 during the audit period for services that were not covered by Medicaid. Following the issuance of the Final Agency Audit Report, and as announced at the outset of the final hearing in his matter, Petitioner now alleges that Respondent was overpaid $312,773.26. The manner in which AHCA reached the alleged overpayment of $312,773.67 is as follows: of the 255 claims examined by Ms. Satchell, 197 were allowed.5 Ms. Satchell made downward adjustments to 52 claims, and 6 were denied outright. Based upon the adjustments and denials, Ms. Satchell concluded that Respondent had received $1,287.26 in reimbursement of claims in the sample for services not covered by Medicaid, either in whole or in part. Having discovered this "empirical overpayment" of $1,287.26, AHCA employed a statistical formula to ascertain the "probable total overpayment" that Respondent received from Medicaid in connection with the total number of claims made during the Audit Period.6 As noted above, Petitioner contends that the "probable total overpayment" is $312,773.67. In her Proposed Recommended Order, Respondent asserts that with respect to the entire sample of claims, only one instance of incorrect billing occurred. In particular, Respondent concedes that that services provided to Recipient number 24 on September 2, 2003, were inadvertently overbilled in the amount of $0.96. Respondent disputes the remaining 51 downward adjustments and six outright denials, which are discussed separately below by recipient.7 Recipient No. 1 The support plan for this recipient authorized Personal Care Assistance, which is described in the Florida Medicaid Developmental Services Waiver Services Coverage and Limitations Handbook as follows: service that assists a beneficiary with eating and meal preparation, bathing, dressing, personal hygiene, and activities of daily living. The service also includes activities such as assistance with meal preparation, bed marking and vacuuming when these activities are essential to the health and welfare of the beneficiary and when no one else is available to perform them . . . . Personal Care Assistance is limited to the amount, duration and scope of the services described in the beneficiaries [sic] support plan and current approved cost plan.[8] (Emphasis added). The support plan indicates that this recipient lived with his mother and three siblings, all but one of whom were capable of completing homemaker tasks. AHCA alleges that of the five claims examined during the audit, one is problematic. In particular, AHCA contends that six of the activities performed on November 12, 2004, constituted unauthorized homemaker tasks, and therefore overbilling occurred in the amount of $12.90. According to AHCA, the unauthorized activities included organizing clothes, cleaning the kitchen, washing dishes, cleaning tables, cleaning the living room, and washing laundry. The undersigned finds that four of the six activities were unauthorized homemaker tasks: organizing clothes, cleaning the living room, washing laundry, and cleaning tables. The undersigned cannot agree, however, that Respondent inappropriately billed for washing dishes and cleaning the kitchen. Notably, and as demonstrated by the service log, meal preparation was one of the services provided to the recipient on November 12, 2004. There is no allegation that meal preparation was unauthorized, and the various exhibits submitted by AHCA plainly reveal that the service was appropriate (i.e., meal preparation was not included in AHCA's list of unauthorized activities for that date). In the undersigned's judgment, if a service provider is authorized to cook a meal for a beneficiary, it necessarily follows that the provider be permitted, and indeed expected, to wash the dishes and clean the kitchen. The undersigned's conclusion that Respondent appropriately billed for cleaning the kitchen and washing dishes is supported by the notes made by Ms. Satchell in one of AHCA's exhibits. In particular, page 3 of Petitioner's Exhibit H indicates that with respect to the October 17, 2004, services provided to Recipient No. 6 (who likewise received Personal Care Assistance), one unit of service was deducted for cleaning the kitchen because there was "no meal prep that day." The obvious implication of this notation is that cleaning the kitchen would not have been considered improper if a meal had been prepared. As Respondent was authorized to prepare a meal for the recipient on November 12, 2004, Respondent properly billed for the services of washing the dishes and cleaning the kitchen. Accordingly, the $12.90 alleged overpayment should be adjusted, as only four unauthorized activities (organizing clothes, cleaning the living room, washing laundry, and cleaning tables) were billed. Recipient No. 3 The service authorization for Recipient No. 3 provided for four hours of Homemaker Services per week. The service authorization further indicated that the Homemaker Services were intended to achieve the support plan goal of providing "the beneficiary with [a] clean environment. General household activities, such meal [sic] preparation, vacuuming, and routine cleaning." It appears from the support plan that the Homemaker Services were authorized due to the poor health of the recipient's mother. Homemaker Services are defined in the Florida Medicaid Developmental Services Waiver Services Coverage and Limitations Handbook as follows: Homemaker services are those general household activities such as meal preparation, laundry, vacuuming and routine household cleaning provided by a trained homemaker, when the person who usually handles these tasks is unable to perform them. The intent of this service is to ensure that the beneficiary's home environment remains clean, safe, and sanitary. Homemaker services are provided only when there is no one else capable of accomplishing the household tasks . . . . * * * Homemaker services shall be provided in the beneficiary's own home or family home. This service is available in the family home only when there is documentation as to why the family cannot provide the support If approved, homemaker services will be limited to the beneficiary's primary living areas such as bedroom and bathroom. This includes the kitchen and a common area, if regularly utilized by the beneficiary. (Emphasis added). On December 11, 2004, Respondent provided four hours of Homemaker Services, which were billed in the amount of $59.20. AHCA concedes that nine of the services provided on December 11, 2004, were authorized and therefore appropriately billed: making the bed; changing the bed sheets; throwing garbage away; cleaning the room; organizing the room; organizing the clothes; cleaning the bathroom; changing the towels; organizing the bathroom; vacuuming; cleaning the rugs; and meal preparation. However, AHCA contends that ten other activities provided on December 11, 2004, were unauthorized: cleaning the kitchen; washing the dishes; cleaning the tables; cleaning / organizing the cabinets; cleaning the stove; cleaning the refrigerator; cleaning the living room; washing laundry; ironing; and cleaning windows. It is evident from Ms. Satchell's notes (in the "MPI worksheet") that she found these tasks unnecessary because they occurred "outside of recipient's bedroom / bathroom."9 As a consequence, Ms. Satchell concluded that Respondent was overpaid for one hour of services in the amount of $14.80 Once again, the undersigned cannot agree that Respondent inappropriately billed for cleaning the kitchen, washing dishes, and cleaning the stove. Cooking was permitted by the service authorization, and there is no allegation that Respondent should not have billed for the meal that was prepared for the recipient on December 11, 2004. If a provider is authorized to prepare a meal, it is only logical that he or she clean up afterward and bill for the time. Nor can the undersigned agree that Respondent should not have billed for cleaning the living room, tables, windows, and refrigerator. These four activities plainly fall within the services contemplated by the service authorization, which directed Respondent to provide "the beneficiary with [a] clean environment" and carry out "general household activities . . . such as routine cleaning." Moreover, these activities are comparable to "cleaning rugs," an activity performed on the same date that was not alleged to be improper. Although, as AHCA point out, these activities may have occurred outside of the recipient's bedroom and bathroom, that fact is not controlling, as the Florida Medicaid Developmental Services Waiver Services Coverage and Limitations Handbook provides that Homemaker Services extend to "the kitchen and a common area, if regularly utilized by the beneficiary."10 The undersigned also finds that washing laundry was not an unauthorized activity, as it falls within the definition homemaker services. Further, in light of the recipient's incontinence, washing laundry is obviously essential to achieving the support plan goal of providing "the beneficiary with [a] clean environment." The undersigned does agree with AHCA that ironing and "cleaning / organizing cabinets" were unauthorized because these activities were not related to the support plan goals. Based on the findings herein that only two of the activities were unauthorized (ironing and "cleaning / organizing" cabinets), an adjustment should be made to the alleged overpayment of $14.80. Recipient No. 6 This recipient was authorized to receive six hours of Personal Care Assistance per day. Pursuant to the support plan, Respondent was authorized to provide bathing, dressing and eating assistance to the recipient. On October 17, 2004, Respondent provided six hours of services to the recipient, at a cost of $120.96. AHCA alleges, correctly, that one of the services provided on that date, cleaning the kitchen, was unauthorized because the service documentation provided by Respondent reflects that no meal was prepared. Accordingly, the undersigned finds that Respondent was overpaid $5.04. Although Respondent has suggested that cleaning the kitchen may have been necessary due to the recipient (who is incontinent) defecating on the kitchen floor, no documentation has been provided that would support such a finding. In the absence of appropriate documentation, AHCA appropriately found that an adjustment of one unit was required for the October 17, 2004, services. Respondent also provided six hours of services to the recipient on November 26, 2004, at a cost of $120.96. With respect to this date, AHCA contends, and the undersigned agrees, that overbilling for one unit in the amount of $5.04 occurred, as one of the activities performed, "organizing clothes," constituted an unauthorized homemaker service. For the reasons expressed above, AHCA demonstrated by a preponderance of the evidence overbilling totaling $10.08 with respect to this recipient. Recipient No. 7 This recipient was authorized to receive Personal Care Assistance. Significantly, the recipient's support plan clearly indicated that her mother prepared meals for her. The service logs indicate that Respondent provided four hours of services to the recipient on the following dates: September 4 and November 25, 2003, and February 10 and April 26, 2004. AHCA contends that on each of the four dates listed above, Respondent provided the unauthorized service of meal preparation, and as a result, Respondent was overpaid a total of $18.68. As the recipient's support plan clearly indicated that meals were prepared by a parent, AHCA has demonstrated an overpayment of $18.68 by a preponderance of the evidence. Recipient No. 8 Recipient No. 8 was authorized to receive Personal Care Assistance and Companion Services, both of which were provided by Respondent. AHCA alleges that of the eleven claims reviewed pursuant to the audit, two were problematic. Specifically, AHCA contends the service logs associated with the personal care assistance provided on October 26 and November 19, 2004, were obvious photocopies of Respondent's service log from March of 2004 for the same recipient. Accordingly, AHCA asserts that the records submitted by Respondent in connection with the October 26 and November 19 services were not contemporaneous and therefore inadequate. As no contemporaneous records document the services provided on October 26 and November 19, 2004, AHCA contends that Respondent was overpaid $275.20 ($137.60 for each of the dates). The undersigned has examined the service logs for October and November 2004 for this recipient and finds that they do not constitute contemporaneous records. As such, Respondent was overpaid in the amount alleged by AHCA. Recipient No. 9 This recipient was authorized to receive Homemaker Services. AHCA alleges, and the undersigned agrees, that of the five claims audited, two involved overpayments. In particular, Respondent's service log reveals that on April 29, 2003, the unauthorized activity of "shopping" was performed. As such, Respondent was overpaid in the amount of $3.70. Further, Respondent's service log indicates that on January 7, 2004, homemaker activities were provided from 9:00 a.m. through 11:00 a.m., which included shopping and meal preparation. As noted above, shopping is an unauthorized activity. In addition, the support plan indicates that the recipient's mother was responsible for preparing meals. Accordingly, an overpayment of $3.70 occurred with respect to this date of service. For these reasons, AHCA has demonstrated a total overpayment of $7.40 in connection with this recipient. Recipient No. 10 Recipient No. 10 was authorized to receive Companion Services, which, pursuant to the support plan, were intended to help the recipient "continue to be exposed to different options in the community." AHCA contends that two of the five claims examined during the audit are problematic. First, with respect to the July 29, 2003, claim, Respondent provided no documentation to support the $49.44 billed for the four hours of service. As such, AHCA correctly determined that Respondent was overpaid in that amount. In addition, AHCA properly found that Respondent was overpaid $3.70 in connection with the September 26, 2003, services. Specifically, the service log indicates that a meal was prepared, which is an activity unrelated to the specific goals identified in the support plan. Based on the above findings, Respondent was overpaid a total of $53.14 with respect to this recipient. Recipient No. 12 Recipient No. 12 was authorized to receive eight hours of Companion Services per week. Pursuant to the support plan and service authorization, the services were intended to help the recipient be "socially active in the community." The support plan further indicated that the recipient was able to "clean her room, clean the bathroom . . . wash dishes and help her mother with chores." AHCA correctly alleges that of the five claims examined, three involved overpayments. First, for the 32 units of service provided on December 28, 2003, Respondent was overpaid $3.70 because the service log indicates that dishwashing was provided. This was obviously inappropriate because, as noted above, the support plan expressly provided that the recipient was capable of washing dishes. Next, Respondent's service log indicates that dishwashing was performed for the recipient on April 24, 2004. As such, Respondent was overpaid $3.70. An overpayment of $3.70 was also proven in connection with the July 3, 2004, services, as the service log demonstrates that the unauthorized activities of dishwashing and "organizing the bathroom" were performed. For these reasons, AHCA appropriately determined that Respondent was overpaid in the total amount of $11.10 for the services provided to this recipient during the audit period. Recipient No. 17 This recipient was authorized to receive Personal Care Assistance and Homemaker Services. Of the twelve claims reviewed concerning this recipient, AHCA alleges that only the November 11, 2004, services are problematic. In particular, a review of the service logs demonstrates that seven activities billed as homemaker services for November 11, 2004, were also provided and billed as personal care assistance for the same date. Based upon this unauthorized duplication of services, AHCA has proven that an overpayment of $14.80 occurred. Recipient No. 18 This recipient was authorized to receive forty hours of Personal Care Assistance per week. According to the support plan, the recipient lived alone with her father (who worked full time) and had little contact with her mother, who lived "far away" and visited only occasionally on weekends. The support plan further provided that the personal care assistance was intended to provide assistance with "bathing, dressing, grooming, food preparation, feeding, and transportation to . . . therapy." AHCA determined, following a review of the service logs and other documentation, that Respondent was overpaid in connection with two of the seven claims reviewed during the audit. First, AHCA alleges that Respondent was overpaid $7.72 by performing unauthorized homemaker tasks on September 19, 2003, which included shopping, washing dishes (although no meal was prepared), and assisting with household activities that would not typically be completed by an eight-year-old child. The undersigned agrees that the activities identified by AHCA in connection with the services rendered on September 19, 2003, were unauthorized, and that Respondent was overpaid in the amount of $7.72. AHCA also contends that Respondent was overpaid $7.72 in connection with the services provided on February 27, 2004. Specifically, AHCA asserts that three of the activities (shopping, laundry, and washing dishes) were unauthorized homemaker tasks. It is critical to note that in contrast to the services provided on September 19, 2003, the provider prepared a meal (as authorized by the support plan) for the recipient on February 27, 2004. As such, and for the reasons expressed previously in this Recommended Order, dishwashing should not be deemed an unauthorized activity. However, the undersigned concludes that shopping and laundry, the other two questionable activities performed on February 27, 2004, were indeed unauthorized. In light of the undersigned's finding that meal preparation was not an unauthorized activity, AHCA should make an appropriate adjustment to the February 27, 2004, overpayment. Recipient No. 19 Of the eight claims examined for Recipient No. 19, who was authorized to receive Companion Services, AHCA found fault with only one. In particular, AHCA determined that of the $59.20 billed on November 26, 2004, Respondent was overpaid $3.70 by performing the unauthorized homemaker activity of "organizing bathroom." The undersigned agrees with AHCA's finding, as organizing the recipient's bathroom is a homemaker activity that does not fall within the ambit of companion services. As such, an overpayment of $3.70 occurred. Recipient No. 20 This recipient was authorized to receive twenty hours of Companion Services per week, which were typically provided in four hour blocks from 1:00 p.m. to 5:00 p.m. Companion Services are defined in the Florida Medicaid Developmental Services Waiver Services Coverage and Limitations Handbook as follows: Companion services consist of non-medical care, supervision, and socialization activities provided to an adult on a one-on- one basis. This service must be provided in direct relation to the achievement of the beneficiary's goals per his or her support plan. A companion provider may also assist the beneficiary with such tasks as meal preparation, laundry and shopping . . . . Providers may also perform light housekeeping tasks, incidental to the care and supervision of the beneficiary. (Emphasis added). Significantly, the support plan expressly provided that the recipient "receive[d] assistance from her companion in some house chores, like cleaning the kitchen and meal preparation to avoid risky situations in the kitchen." (Emphasis added). AHCA contends that overpayments occurred with respect to four of the five claims audited. First, AHCA alleges that with regard to the November 11, 2003, services, Respondent was overpaid $3.70 by performing the unauthorized activity of "light housekeeping." The undersigned cannot agree, as the support plan plainly allowed the provider to assist the recipient with "some house chores," which is indistinguishable from "light housekeeping." Further, and as noted above, companion services may include "light housekeeping tasks, incidental to the care and supervision of the beneficiary." The service log for November 11, 2003, demonstrates that supervision was provided to the recipient. Accordingly, Respondent did not overbill in the amount of $3.70 for this date of service. Next, AHCA contends that with respect to the services provided on December 10, 2003 (which included non-medical care, supervision, shopping, and "goals and support plan assistant"), one activity was unauthorized: meal preparation. As such, AHCA alleges that an overpayment of $3.70 occurred. The undersigned concludes, based on the unambiguous language of the support plan, that meal preparation was authorized. As detailed above, the recipient "receive[d] assistance from her companion in some house chores, like cleaning the kitchen and meal preparation to avoid risky situations in the kitchen." (Emphasis added). Accordingly, an overpayment of $3.70 did not occur with respect to the December 10, 2003, services. Turning to the services provided on May 6, 2004, AHCA contends that the unauthorized activity of washing laundry resulted in an overbilling of $3.70. As referenced in the definition of companion services previously quoted, laundry may only be performed "in direct relation to the achievement of the beneficiary's goals per his or her support plan." In this instance, the documentation submitted by Respondent fails to make such a showing. As a result, AHCA correctly found that $3.70 was overbilled for this date. Finally, with respect to the May 12, 2004, services, AHCA alleges that Respondent was overpaid $3.70 for the unauthorized activity of "dishwashing." The undersigned does not agree that dishwashing was unauthorized, since the support plan contemplated that the recipient would receive assistance from a "companion in some house chores, like cleaning the kitchen." As washing dishes is integral to the process of cleaning a kitchen, Respondent was not overpaid in connection with this date of service. Based on the above findings, the total overbilling for this recipient was $3.70, which related to the May 6, 2004, services. Respondent was not overpaid in connection with the services provided on November 11 and December 10, 2003, and May 12, 2004. Recipient No. 21 This recipient was authorized to receive 20 hours of Personal Care Assistance per week, which was typically provided from 2:00 p.m. through 6:00 p.m. The support plan for this recipient, who is incontinent, reads in relevant part as follows: Food requires modification. Food needs to be blend [sic] or puree [sic] at all times to avoid choking . . . . [Recipient] arrives home around 2:00 p.m. Personal Care service changes her diaper. Then she prepares her a snack. She is [sic] assists with eating. AHCA contends that Respondent was overpaid in connection with three of the four dates of service examined during the audit. First, with respect to the services provided on April 14, 2004, AHCA asserts that two unauthorized activities were performed (organizing clothes and performing a massage), which resulted in overbilling of $3.86. Having reviewed the support plan carefully, the undersigned agrees that these activities were unauthorized and that an overpayment occurred in the amount alleged. Turning to the services provided on October 14, 2004, AHCA alleges that five unauthorized activities (providing a massage, washing dishes, changing sheets, organizing the bathroom, and cleaning a table) resulted in overbilling of $11.58. The undersigned concurs with AHCA's assertion that the activities of "massage," change sheets, organize bathroom, and clean table were unauthorized. However, overbilling did not occur for washing dishes, as the service log reveals that a meal was prepared for the recipient on October 14, 2004, an activity that was expressly authorized by the support plan. As meal preparation was permitted, washing the dishes constituted a permissible activity. In light of the above findings, AHCA should make an appropriate adjustment to the overpayment associated with the October 14, 2004, services. Finally, AHCA contends that with regard to the December 24, 2004, services, Respondent was overpaid $7.72 by providing four unauthorized activities: performing a massage, making the bed, changing towels, and cleaning the living room. The undersigned agrees that these activities were not approved and that an overpayment occurred in the amount alleged. Recipient No. 23 Recipient No. 23 was authorized to receive Personal Care Assistance, which was typically provided multiple times each week for eight hours. AHCA contends that Respondent was overpaid in connection with eight of the nine claims examined during the audit. Six of the claims involve identical issues. In particular, with respect to the services provided on August 29, 2003, and February 2, February 17, April 5, May 28, and September 13, 2004, AHCA asserts that the unauthorized activities of "make bed, meal prep, [and] clean table" resulted in overbilling totaling $60.48 (i.e., $10.08 for each of the six dates). As it appears from a review of the support plan that the recipient's mother was able to complete these activities, the undersigned agrees that overbilling occurred in the amount alleged. AHCA also alleges, and has demonstrated by a preponderance of the evidence, that $10.08 was overbilled in connection with the services provided on August 8, 2003. In particular, the activities of "played outside, played with castle set, and lunch" are beyond the scope of the services contemplated by the support plan. Finally, AHCA has met its burden with respect to the alleged $5.04 in overbilling associated with the September 10, 2003, services, as "went to pool" and "watered deck flowers before dinner" plainly constitute unauthorized activities. Recipient No. 24 As noted previously, Respondent concedes that an overpayment of $0.96 occurred with respect to this recipient. Recipient No. 25 Recipient No. 25 was authorized to receive 16 hours of Companion Services each week to assist with socialization and supervision. Of the six claims examined during the audit, AHCA contends that two are problematic. First, with regard to the services provided on January 29, 2003, AHCA contends that the entire billing for that date ($24.72) should be denied due to inadequate documentation. In particular, AHCA notes that the service log provided during the preliminary audit and final audit was different than a log submitted by Respondent in April of 2009. Further, the earlier log is vague (it merely indicates "assist household, escort activities, other") and fails to address any specific support plan activities. AHCA also points out that the later log was incomplete and failed to indicate the date of the activities. AHCA has demonstrated by a preponderance of the evidence that the services provided on January 29, 2003, were not adequately documented, and therefore Respondent was overpaid in the amount of $24.72. Next, AHCA alleges that the services provided on March 25, 2004, were not adequately documented, and therefore the entire billing of $44.40 should be denied for that date. Specifically, AHCA points out that the service log only reads "supervision" and "escort activities" and failed to address any of the activities enumerated in the support plan. Although a later service log was submitted, it was incomplete, vague, and failed to delineate which activities were performed on March 25, 2004, as opposed to the other nine dates of service during that month. For the reasons detailed above, AHCA demonstrated by a preponderance of the evidence that the March 25, 2004, services were not properly documented, and therefore the $44.40 payment should be denied. Recipient No. 26 AHCA contends that of the nine claims examined during the audit concerning this recipient, one should be fully denied due to the lack of proper documentation. Specifically, AHCA alleges that the $74.00 payment for the services rendered on May 31, 2004, should be denied outright, as the service log for May of 2004 was created by photocopying the service log for the previous month and changing the date. The undersigned has examined the documents11 and concludes that the May 2004 service log was not contemporaneously prepared. As a result, AHCA has demonstrated by a preponderance of the evidence that the $74.00 payment associated with the May 31, 2004, services should be denied. Recipient No. 28 This recipient was authorized to receive Personal Care Assistance to address daily needs such as grooming and dressing. Significantly, the support plan also indicates that meal preparation was authorized. AHCA contends that with respect to the services provided on May 15, 2003, four unauthorized homemaker activities were performed: cleaning the bathroom, washing laundry, cleaning the kitchen, and washing dishes. As a result, AHCA alleges an overpayment of $12.00, which represents four units of service. AHCA has demonstrated by a preponderance of the evidence that cleaning the bathroom and washing laundry were unauthorized. However, AHCA has failed to prove that dishwashing and cleaning the kitchen were unauthorized, as the provider prepared a meal (as indicated by the service log) for the recipient on May 15, 2003, an activity that was authorized by the support plan. As explained previously in this Recommended Order, if a provider is authorized to prepare a meal, then it is entirely reasonable for the provider to wash the dishes and clean the kitchen afterward. This is particularly true with respect to this recipient, who lived alone with her stepfather (who, according to the support plan, worked "intensive hours"), and was incapable of performing basic tasks (e.g., grooming and dressing) without assistance. Accordingly, AHCA should make an appropriate adjustment to the alleged $12.00 overpayment based on the above findings that cleaning the kitchen and washing dishes were not unauthorized. Recipient No. 29 Recipient No. 29 was authorized to receive Personal Care Assistance in the amount of two hours each weekday and five hours on weekends. Pursuant to the support plan, the recipient required assistance with basic activities such as dressing, bathing, brushing teeth, and preparing meals. AHCA contends that overbilling occurred with respect to four of the eight dates of service examined during the audit. First, AHCA alleges, and has demonstrated by a preponderance of the evidence that $10.08 was overbilled for the October 6, 2004, services, as the following unauthorized homemaker activities were performed: cleaning the recipient's room, cleaning the bathroom, organizing the room, organizing the bathroom, and changing towels. In addition, AHCA has proven an overpayment of $10.08 in connection with the November 24, 2004, services, where the service log demonstrates that unauthorized homemaker activities (identical to the services identified in the previous paragraph) were performed on that date. With regard to the services rendered on December 14, 2004, AHCA has demonstrated overbilling of $10.08 for the unauthorized homemaker services of cleaning the room and changing towels. Finally, AHCA alleges, and has demonstrated by a preponderance of the evidence, a $5.04 overpayment in connection with the December 29, 2004, services. In particular, the service logs demonstrate that the unauthorized homemaker activities of vacuuming, organizing the bathroom, and taking out garbage were performed. Recipient No. 31 This recipient was authorized to receive Personal Care Assistance, which was provided eight hours per day, Monday through Friday, and ten hours on both Saturday and Sunday. As the recipient is a quadriplegic, personal care assistance was obviously necessary for feeding and maintaining personal hygiene. Of the nine claims examined during the audit concerning this recipient, AHCA alleges that overbilling occurred with respect to two. First, with regard to the October 27, 2003, services, AHCA contends that insufficient documentation was provided by Respondent to support ten hours of billing. In particular, AHCA asserts that "ate well" is the only activity described in the contemporaneous service log.12 As a result, AHCA argues that one hour of billing should be permitted for meal prep, and that the remaining billing in the amount of $181.44 should be disallowed. Contrary to AHCA's contention, "ate well" is not the only event described in the contemporaneous service log. Significantly, the log also reads, "Incontinent B & B." Given the recipient's physical condition, this notation obviously means that the service provider was required to address at least one episode of bladder and bowel incontinence during the ten hours of service. As such, billing should be permitted for toileting. Based on the above finding that services were documented for toileting, AHCA should make an appropriate adjustment to the October 27, 2003, overpayment. Next, AHCA contends that that due to inadequate documentation, overbilling of $161.28 occurred with regard to the ten hours of services provided on February 16, 2004. In particular, AHCA contends that the documentation submitted by Respondent supports only two hours of billing, as bathing was the only activity described in the contemporaneous service log. Once again, however, the contemporaneous service log also indicates that the service provider was required to address the recipient's bladder and bowel incontinence. Accordingly, additional billing should be permitted for toileting, and AHCA should make an appropriate adjustment to the February 16, 2004, overpayment. Recipient No. 32 Recipient No. 32 was authorized to receive Personal Care Assistance and Companion Services. AHCA contends that Respondent was overpaid in connection with eight of the fifteen claims examined pursuant to the audit. With respect to the services provided on March 21 and 23, 2003, AHCA has demonstrated by a preponderance of the evidence that Respondent was overpaid $61.80 in connection with each of the two dates (totaling $123.60) where the documentation does not support the units of service billed. Next, AHCA contends, and the undersigned agrees, that Respondent inappropriately billed for recreational activities in connection with the personal care assistance services provided on August 13, 2003, and December 1, 2003. As a result, $3.86 was overbilled for each date, for a total of $7.72. AHCA also alleges, and has demonstrated by a preponderance of the evidence, that unauthorized homemaker activities were billed in connection with the companion services rendered on October 7 and 11, 2003, and December 2, 2003, which resulted in overbilling of $11.10, $11.10, and $7.40, respectively. In particular, the service logs indicate that meal prep, laundry, and housekeeping were performed on October 7 and 11, 2003, and that laundry and housekeeping were provided on December 2, 2003. Finally, AHCA has proven an overpayment of $15.44 with respect to the personal care assistance services provided on March 25, 2004. Specifically, the service log indicates that the service provider "walked the dog" and "checked live bait," tasks which do not fall within the scope of personal care assistance. Based on the above findings, AHCA demonstrated a total overpayment of $176.36 with respect to this recipient. Recipient No. 33 This recipient was authorized to receive three hours per week of Companion Services, which were intended to "increase awareness of community resources and increase community integration skills." AHCA alleges that Respondent was overpaid in connection with one of the two claims examined during the audit. Specifically, with respect to the services provided on July 15, 2003, the only activities described in the service log are "shopping" and "exercise." AHCA contends, and the undersigned agrees, that neither shopping nor exercise constitute goal oriented activities in under the circumstances of this recipient. Accordingly, AHCA has demonstrated an overpayment of $15.44, which represents one hour of billing. Recipient No. 34 This recipient was authorized to receive Personal Care Assistance. Pursuant to the support plan, the recipient lived with her able-bodied mother and older brother. Of the five claims examined during the audit, AHCA contends that Respondent was overpaid with respect to two. First, AHCA alleges that $5.29 was overpaid in connection with the August 4, 2004, services, where the service log suggested that the provider took the recipient to the park. The undersigned has examined the monthly summary, and agrees with AHCA's assessment of the documentation. Accordingly, AHCA has demonstrated an overpayment in the amount alleged. Turning to the services provided on December 9, 2004, AHCA has demonstrated an overpayment of $5.29 by a preponderance of the evidence, as "cleaning the living room" is an activity that could have been performed by the recipient's mother.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is Recommended that AHCA: Make appropriate adjustments to the empirical overpayment; Recalculate the probable total overpayment using the adjusted empirical overpayment and the statistical formula previously employed, and enter a final order requiring Respondent to repay AHCA the amount determined through such recalculation; The final order should further require Respondent to pay interest at the rate of 10 percent per annum on the recalculated total overpayment. DONE AND ENTERED this 23rd day of November, 2010, in Tallahassee, Leon County, Florida. S Edward T. Bauer 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 23rd day of November, 2010.
