The Issue The issues for determination in this case are: 1) whether Respondent failed to provide Petitioner proper notice of continuation health care coverage under the Florida Employees Group Insurance Program; and, 2) whether Petitioner is entitled to reimbursement for medical expenses incurred subsequent to termination of his employment.
Findings Of Fact Petitioner, EDWARD HERNANDEZ, is a former employee of the University of South Florida (USF) in Tampa, Florida. Respondent, DIVISION OF STATE EMPLOYEES INSURANCE, is the agency of the State of Florida responsible for the administration of the Florida Employees Group Insurance Program. On July 7, 1994, Petitioner was terminated from his employment as a library technical assistant with the University of South Florida in Tampa, Florida. Petitioner's employment termination resulted from a poor performance appraisal, and did not result from gross misconduct. While employed with the University of South Florida, Petitioner participated in the Florida Employees Group Insurance Program, which participation included individual health care coverage provided by a Health Maintenance Organization (HMO). As an employee, Petitioner's contribution to the cost of such individual health care coverage was $26.02 per month which was automatically deducted from his compensation by his employer. As an employment benefit, Petitioner's employer, the University of South Florida, was responsible for, and paid the remaining cost associated with Petitioner’s health care coverage. On July 27, 1994, Respondent DIVISION OF STATE EMPLOYEES INSURANCE, received notification of Petitioner's termination of employment from USF. On August 10, 1994, Respondent initially mailed a notice to Petitioner informing him of his eligibility for continuation coverage. The initial notice of continuing coverage was mailed to Petitioner at PO Box 17803, Tampa, Florida, 33682, which at that time was the address listed for Petitioner in the Employees Group Insurance Program system. In April of 1994, however, Petitioner had relocated, and Petitioner's mailing address in August of 1994 was 12741 North 17th Street. Petitioner had informed the University of South Florida as to his change of address; however, for reasons unknown, Petitioner's change of address was not entered into the Employees Group Insurance Program system. Petitioner, accordingly, did not receive the initial notice of continuation coverage mailed by Respondent on August 10, 1994, nor was the initial notice returned to Respondent. Almost eighteen months later, on March 11, 1996, Respondent received a letter of inquiry from Petitioner dated March 8, 1996, stating that Petitioner had significant medical needs and was awaiting notification from Respondent of his eligibility for continuing coverage. Respondent's staff reviewed Petitioner's letter dated March 8, 1996 to determine whether receipt of the initial notice of continuation coverage could be verified. Because Respondent's 1994 records had already been archived, there was a question at that time regarding verification that the initial notice of continuation coverage had been properly mailed to Petitioner. Accordingly, on June 6, 1996, Respondent in good faith mailed a second notice of continuation coverage to Petitioner which provided for retroactivity back to the date of Petitioner's termination of employment. Petitioner received the second notice of continuation coverage. The second notice of continuation coverage stated that Petitioner was eligible for individual continued coverage for the eighteen consecutive months after termination of his employment with USF. The notice stated that the group coverage in effect for Petitioner at the time of his termination was a Health Maintenance Organization (HMO). The notice specifically stated in bold print that the cost of the premium for individual continuation coverage was $162.61 per month. This amount represents the cost of the premium of $158 plus a two percent (2%) administrative fee. This amount does not exceed 102% of the applicable premium cost for such period. The notice further stated that the application and premium must be postmarked no later than August 6, 1996. Under the terms of the notice of continuation coverage, if implemented, Petitioner's continuation coverage would begin on September 1, 1994, and would be reinstated for the eligibility period of eighteen consecutive months from that date. On June 16, 1996, Petitioner executed the application for continuation coverage, and enclosed a premium payment in the amount of $26.02, which represented Petitioner's cost for coverage while employed with the University of South Florida. Petitioner also enclosed a letter dated June 22, 1996, stating his position to Respondent regarding the retroactivity of coverage and the basis for his contention that he should not be required to pay a premium in excess of his cost prior to termination of employment. Petitioner further requested reimbursement from Respondent in the amount of $272.27 for medical expenses incurred by Petitioner during the period between termination and receipt of the second notice of continuation coverage. Respondent received Petitioner's application, payment and letter on June 25, 1996. On July 10, 1996, Respondent sent Petitioner a notice stating that Petitioner's premium payment would not be accepted, and further stating that " your letter has been forwarded to the Director's Office for further review, they will be corresponding with you on this matter shortly." On September 5, 1996, Petitioner filed a Petition for Declaratory Statement with Respondent which as indicated above, instituted these proceedings.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Respondent enter a Final Order denying the petition. DONE and ORDERED this 25th day of February, 1997, in Tallahassee, Florida. RICHARD HIXSON Administrative Law Judge Division of Administrative Hearings DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 25th day of February, 1997. COPIES FURNISHED: Edward Hernandez, Esquire Post Office Box 173265 Tampa, Florida 32672-1265 Cindy Horne, Assistant General Counsel Department of Management Services 4050 Esplanade Way, Suite 260 Tallahassee, Florida 32399-0950 A. J. McMullian, III, Director Division of Retirement Cedars Executive Center, Building C 2639 North Monroe Street Tallahassee, Florida 32399-1560
The Issue Whether Respondent violated various provisions of Chapter 641, Florida Statutes, as more specifically alleged in Order to Show Cause dated September 29, 1989.
Findings Of Fact Amerimed Insurance Plan, Inc. (Amerimed), is a licensed health care services plan, domiciled in the State of Florida and subject to the jurisdiction and regulation of the Florida Department of Insurance (Department) pursuant to Chapter 461, Part I, Florida Statutes. The Notice to Show Cause was initiated following the filing of Amerimed's Annual Statement, the March 31, 1989 quarterly statement and other information. Section 641.01, Florida Statutes, states five or more persons may form a corporation for the purpose of establishing, maintaining and operating a nonprofit health care services plan in the State of Florida. Although Amerimed was incorporated on November 22, 1977, its annual statements since that date indicate the plan has never written a policy or contract of health care services and, therefore, has never commenced business within the meaning of s. 641.01, Florida Statutes. In fact, the plan has never written a policy or contract to provide health services. The majority of the existing directors of Amerimed are not representatives of the general public as required by s. 641.02, Florida Statutes. Amerimed has, over the past twelve years, amended its Articles of Incorporation without first having submitted these amendments to the Department for approval as required by s. 641.05, Florida Statutes. Amerimed has on file with the Department a Certificate of Deposit for $125,000, in trust, held by the Department for the protection of policy holders and/or subscribers which deposit may not be used as working capital to operate the plan. The only income reported by Amerimed is the interest on the Certificate of Deposit in the approximate amount of $1000 per month. Amerimed has no salaried employees, and such records as are maintained by Amerimed are maintained at the offices of Melvin S. Jacobson who is the beneficial owner of the Certificate of Deposit held by the Department. Although s. 641.01, Florida Statutes, authorizes the formation of a nonprofit corporation to sell health insurance plans, and Jacobson testified the corporation is owned by the Board of Directors, it is clear that Jacobson, as President, Chairman of the Board and the source of the $125,000 Certificate of Deposit, controls Amerimed with his power to appoint and dismiss directors. As a nonprofit corporation, Amerimed was incorporated in 1977 as Sunshine State Health Care, changed its name to Medical Centers in 1981, and in 1984 the name was changed to Amerimed Insurance Plan, Inc. Amerimed Health Centers, Inc., a corporation formed to operate walk-in medical facilities, had common directors with Amerimed until 1986 when the former commenced liquidation. Jacobson was President and Chairman of the Board of Amerimed Health Centers at the time of its liquidation and the sale of its assets which were completed in 1988 when Amerimed Health Centers, Inc., was involuntarily dissolved. From this dissolution, Amerimed remained with Jacobson as President and Chairman of the Board and other directors named by Jacobson. A former shareholder of Amerimed Health Plans, Inc., contended that he owned a part of Amerimed; in correspondence to the Department in 1984 it was alleged that Amerimed was a wholly owned subsidiary of Amerimed Health Plans, Inc.; and the issuance of 100 shares of stock to Jacobson clearly raised the question of the ownership of Amerimed. Amerimed is the only health insurance plan incorporated in Florida under Part 1 of Chapter 641, Florida Statutes. In 1985, the Legislature abolished the authority of the Department to issue a certificate of authority to operate a nonprofit health care services plan pursuant to this part. (s. 641.155, Florida Statutes 1989). In 1986, the Department brought charges similar, if not identical, to the charges brought in these proceedings. Department officials thereafter conferred with Jacobson in an attempt to settle the dispute. Pursuant to those negotiations, the Department agreed to allow Jacobson several months to locate a buyer of this "nonprofit" corporation who could meet the Department's financial requirements. Jacobson, on the other hand, agreed to surrender his certificate on its expiration date, if he could not find a qualified buyer (Exhibit 7). No qualified buyer was found, yet Jacobson filed his application for renewal of Amerimed's certificate in 1987 and, since the issuing of a renewal certificate is a ministerial act, the Department renewed Amerimed's certification. In 1988, Amerimed located a prospective buyer and issued 100 shares of stock to Jacobson with which to transfer ownership of Amerimed. This buyer could not meet the Department's requirements for qualification, and Amerimed now contends the stock was never delivered to Jacobson, and Amerimed remains a nonstock, nonprofit corporation. Nevertheless, Jacobson is still looking for a purchaser of Amerimed to whom he can sell the certificate for $50,000-$75,000 to recompense him for the time and expense he has incurred in Amerimed. Respondent contends that it has sufficient working capital to cover acquisition costs and operating expenses for at least three months. The only capital available for this purpose is the interest on the Certificate of Deposit which Respondent contends is adequate since there are presently no operating expenses or acquisition costs. However, the sale of one policy would result in Respondent not meeting the financial requirements for health insurance plans and put Amerimed in further violation of statutory provisions.
Recommendation It is recommended that the certificate of Amerimed Insurance Plan, Inc., to operate a nonprofit health service plan pursuant to Chapter 641, Part I, Florida Statutes, be revoked. ENTERED this 23rd day of March 1990, in Tallahassee, Florida. K. N. AYERS 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 23rd day of March 1990. APPENDIX Treatment Accorded Respondent's Proposed Findings: Included in H.O. #1. Included in H.O. #13. Accepted. Included in H.O. #10. Included in H.O. #6. Accepted. Included in H.O. #10 and #15. Accepted in part only. So far as this record shows (Tr. p. 97), three proffered members of the board of directors consist of a man owning a video training company, a realtor, and a man who was in real estate, but is now buying a clothing business. No evidence was submitted that the board included "physicians contracting with the plan, and administrators or trustees of hospitals contracting with the plan. No evidence was presented that Amerimed ever entered into such contracts so as to qualify the physicians and/or hospital administrators presently on the board of directors as board members. Accepted only insofar as consistent with H.O. #7-#11 and #16, otherwise rejected. Rejected insofar as reissuance of the certificate is classified as giving Amerimed a "clean bill of health." Accepted insofar as included in H.O. #7 and #8. Accepted insofar as finding the Department withheld disciplinary proceedings to allow Jacobson to find a qualified transferee. Accepted. The Department renewed Amerimed's certificate as a ministerial act which they could refuse to do only upon showing grounds for revocation. Rejected insofar as in conflict with H.O. #14. Rejected insofar as inconsistent with H.O. #15, otherwise accepted. Treatment Accorded petitioner's Proposed Findings: Included in H.O. #1. Included in H.O. #2. Rejected as opinion. Potentially Amerimed constituted a danger to the public because its certificate authorized the sale of health insurance policies to the public. Included in H.O. #4. Accepted. Included in H.O. #6. 7-8. Included in H.O. #12. 9. Included in H.O. #7. 10-11. Included in H.O. #8. 12. Accepted COPIES FURNISHED: Michael C. Godwin, Esquire Department of Insurance 412 Larson Building Tallahassee, Florida 32399-0300 Bruce Culpepper, Esquire Post Office Box 10095 Tallahassee, Florida 32302 Don Dowdell General Counsel Department of Insurance and Treasurer The Capitol, Plaza Level Tallahassee, Florida 32399-0300 Honorable Tom Gallagher State Treasurer and Insurance Commissioner The Capitol, Plaza Level Tallahassee, Florida 32399-0300
The Issue The issues in this case are whether Respondent received Medicaid overpayments that Petitioner is entitled to recoup, and whether fines should be imposed against Respondent.
Findings Of Fact AHCA is the single state agency responsible for administering the Medicaid program in Florida. The Medicaid program is a federal and state partnership to cover the costs of providing health care and related services to persons meeting certain criteria, such as persons with very low income or persons with certain developmental disabilities. For persons with developmental disabilities, Florida developed a program designed to identify those who could receive needed services in their homes and communities, instead of in institutional settings. To use the state-federal Medicaid funds for home and community-based services, instead of institutional care, Florida was required to obtain a waiver from the federal government by demonstrating that its program presented a less- costly and more-effective alternative to institutionalization. This program, approved for certain developmentally disabled Medicaid recipients, is known as the Home and Community-Based Waiver (HCB waiver). Under the HCB waiver, services are planned for each developmentally disabled recipient according to the recipient's particular needs and described in a detailed support plan. The support plan articulates the goals for each type of needed service and is updated annually. A service authorization is developed from each support plan to specify the amount, by time and dollars, approved for each type of service. The support plan and service authorization documents also identify which Medicaid- contracted providers will be providing each of the approved services. At all times material to this case, Access Road has been a provider of HCB waiver services to Medicaid recipients, pursuant to a Medicaid provider contract with AHCA. Access Road's Medicaid provider number is 681213996. Between January 1, 2007, and December 31, 2008, Access Road provided HCB waiver services to a total of 16 Medicaid recipients. Fourteen recipients received services throughout the two-year period. Two recipients received services for only a short period of time near the end of the two-year period. During this two-year time period, Access Road provided four types of HCB waiver services: personal care assistance; companion care; respite care; and non-residential support. Each of these services is billed in quarter-hour units of service provided on a single day so that a claim for 16 units of service would represent that the service was provided for four hours that day. For the two-year period at issue, Access Road submitted a total of 12,927 claims for reimbursement for services provided to the 16 Medicaid recipients. For those claims, Access Road billed Medicaid and was reimbursed a total of $809,374.42. By entering into Medicaid provider agreements with AHCA, providers such as Respondent agree to "maintain and make available in a systematic and orderly manner," as AHCA requires, all Medicaid-related records for a period of at least five years. In addition, providers agree to send "at the provider's expense, legible copies of all Medicaid-related information" to authorized state and federal employees. These contractual agreements are also requirements of Florida's Medicaid laws and rules, including the Medicaid provider handbooks that are promulgated as rules. AHCA is responsible for conducting investigations and audits to determine possible fraud, abuse, overpayment, or neglect, and must report any findings of overpayment in audit reports. AHCA need not have any particular reason or cause for initiating investigations and audits of Medicaid providers. AHCA is not only authorized to conduct random audits; AHCA is required to conduct at least five percent of its audits on a random basis. In this instance, in early 2010, some question about Respondent's billings arose from a cursory review by the AHCA field office in Respondent's area. The nature of the field office's review or question about Respondent's billings was not established, but is not material, as it is only germane as background explanation of how this matter arose. The result of the area office's question about Access Road's billings was that the MPI Bureau decided to conduct an audit investigation of Respondent, as it is authorized to do, and a referral was made to MPI investigator Kristin Koelle. The purpose of the Medicaid audit was to verify that claims for which Respondent has already been paid by the Medicaid program were for services that were provided, billed, and documented in accordance with Medicaid statutes, rules, and provider handbooks. While Respondent certifies with each claim submission that the claim is proper and that all records required to be maintained in support of each claim are in fact being maintained, the audit goes behind that certification by actually reviewing those records. In setting the audit period, AHCA has up to a four-year range. The end point is set by going back at least one year, since providers have one year to submit and adjust claims. The beginning point is set no more than five years back, which is the record retention period. In this case, within the allowable four-year range, AHCA chose two years, January 1, 2007, through December 31, 2008. The next step in the audit process is to determine the population of recipients and claims for which records will be requested for review. When AHCA audits a Medicaid provider for possible overpayments, it "must use accepted and valid auditing, accounting, analytical, statistical, or peer-review methods, or combinations thereof. Appropriate statistical methods may include, but are not limited to, sampling and extension to the population, . . . and other generally accepted statistical methods." § 409.913(20), Fla. Stat. (2007).3/ The audit methods used depend on the characteristics of the provider and of the claims. For example, where a provider serves thousands of Medicaid recipients during the audit period, but for each recipient, there are not many claims, such as might be the case for a hospital provider, then AHCA may use a single- stage cluster sampling methodology. Under this approach, a random sample of recipients is selected, and then all claims are examined for the recipient sample group. Alternatively, where there are too many claims to review all of the claims for each recipient or to review all claims for a sample group of recipients, a two-stage cluster sample methodology may be used, whereby a random sample of recipients is first selected and then random samples of the claims for the sample group of recipients are selected. Because of the extremely high volume of claims generated by Respondent during the audit period, Ms. Koelle determined with her supervisor that a two-stage cluster sampling methodology would be used. AHCA utilizes a computer program to carry out the random sampling selection once the method is chosen, so Ms. Koelle was able to select the two-stage cluster sampling method and, with the provider number and audit period, the computer drew from the claims database to make the random selection of the samples to be reviewed. As a general target, AHCA considers 30 recipients to be a reasonable sample size for the first stage of two-stage cluster sampling. This target sample size assumes that there are many more than 30 recipients. Since Access Road only served 16 recipients over two years, the computer selected all 16 recipients for review. AHCA's expert credibly explained that while a selection of all recipients is an unusual application of the concept of random sampling, it is an appropriate result that comports with the technical meaning of random sample: a sample chosen whereby all possible samples of the same size are equally likely to have been chosen. Thus, AHCA's expert opined that this audit involved an entirely correct and reasonable, albeit atypical, application of two-stage cluster sampling.4/ Given that AHCA's standard rule of thumb is to include 30 recipients in the "sample" group, it is apparent that what is atypical here is that the provider served only 16 Medicaid recipients over the audit period. Given the small number of recipients served, review of all 16 recipients was feasible and could only increase the reliability of AHCA's review, as AHCA's expert confirmed.5/ It was not feasible, however, to review all 12,927 claims generated by those 16 recipients, nor, presumably, would Access Road want to have been burdened with producing all records to support its 12,927 claims. As a general target, AHCA considers samples of between five and 15 claims, per recipient, to be reasonable sample sizes for the second stage of two-stage cluster sampling. Accordingly, the computer selected 219 claims, representing between five and 15 claims for each recipient in accordance with AHCA's standard. AHCA's expert opined that the sampling method used in this case was reasonable and comported with generally accepted statistical methods. His opinions and explanation were credible, were unrebutted, and are accepted. Respondent's attempt to undermine the expert's opinions, through cross-examination and argument in Respondent's PRO, was ineffective and lacked the support of contradictory expert testimony regarding generally accepted statistical methods. By letter to Access Road dated May 11, 2010, AHCA requested copies of all documentation supporting the 219 claims that were the sample group of claims for the 16 recipients. Access Road also was asked to produce specified staff records, to document that the individuals providing the services represented by the 219 claims were qualified to do so and had met background screening requirements. With its production, Access Road was required to execute a certificate of completeness attesting that all supporting documentation for the 219 claims had been produced. The May 11, 2010, letter stated that the documentation was due within 21 days from the letter's receipt, but added that Access Road should submit the documentation and certificate of completeness "within the requested timeframe, or other mutually agreed upon timeframe." Respondent did not request a different deadline. Instead, Respondent sought clarification of the documentation that had to be produced and then sent a package with documentation and a certificate of completeness, by which Respondent certified to AHCA that all documentation to support the specified billings was included. Ms. Koelle contacted Access Road after reviewing the documentation, because she was unable to determine from what was submitted that all staff were qualified or had undergone background screening. Ms. Koelle allowed Access Road additional time to submit any further documentation to address the omissions she had identified. After the additional time for staff-related documentation, Ms. Koelle conducted her audit of the 219 claims. Ms. Koelle assessed the documentation for each claim by reference to the requirements in Medicaid provider handbooks, as well as the specific service authorizations and support plan goals for each recipient. Each of the 219 claims was either allowed, denied, or adjusted to reduce the amount of the claim for reasons set forth in detailed audit work papers. Ms. Koelle input the audit results on the 219 claims-- approved, denied, or adjusted--into the computer that was programmed to carry out the two-stage cluster sampling methodology by extending the results of the claims sample reviewed to the entire claims population. The result was a preliminary audit determination that Respondent had been overpaid $219,810.12. The results of Ms. Koelle's review were summarized in a Preliminary Audit Report (PAR). The reasons for the denied and adjusted claims were grouped in two broad categories: incorrect, illegible, or insufficient documentation; and overbilling leading to overpayment. The first category included claims for services provided by ineligible or unqualified staff, claims for services with no documentation, and claims for services for which no activities were documented on a service log. The second category included claims for which the number of units of service billed was not supported by the documented activities, claims that billed for more units of service than were documented, and claims for services and activities beyond the scope of services authorized in the recipient's support plan or service authorization. The PAR and the audit work papers were sent to Respondent on June 22, 2010. Respondent was advised that additional documentation could be submitted by a specified deadline in support of claims identified as overpayments. However, in bold print, the PAR warned Respondent that while any additional submittals would be reviewed and could change the treatment of claims, "additional documentation may be deemed evidence of non-compliance with the Agency's initial request for documentation in which [Respondent was] required to provide all Medicaid-related records. Sanctions for this non-compliance will be imposed." Respondent submitted additional documentation by the specified deadline. Ms. Koelle repeated the process of reviewing the new submittals, and in some instances, approving claims that were preliminarily denied. Ms. Koelle repeated the process of inputting the revised determinations into the computer, which repeated the extension of the overpayments within the sampled claims to the entire claims population for the 16 recipients. The result was a reduced overpayment determination, which was set forth in the FAR, of $159,741.86. The reasons for the denied and adjusted claims were grouped in the same two categories and included the same problem areas that had been summarized in the PAR. The FAR determined that a total of 55 claims, representing 25.11 percent of the sample group of claims, were denied, in whole or in part, for documentation deficiency reasons (the first category); and an additional 16 claims, representing 7.31 percent of the sample claims reviewed, were denied, in whole or in part, due to overbilling (the second category). In total, nearly one-third-- 71 of the 219 claims reviewed--were found in the FAR to involve overpayments. As Respondent was warned, the production of additional documentation after the PAR resulted in the FAR's imposition of a $1,000 fine for failing to provide all Medicaid-related records within the timeframe requested in the May 10, 2010, records request. The FAR also imposed a fine of $2,500 for Respondent's failure to follow Medicaid laws, rules, and provider handbooks. Petitioner submitted in evidence the FAR and the audit work papers standing behind the FAR's determinations, including Ms. Koelle's worksheets stating the reasons for denying or adjusting specific claims and the provider documentation that was submitted and available for review of the claims that were adjusted or denied. At hearing, Respondent did not offer any evidence or testimony to refute or impeach the audit findings or to supplement the documentation relevant to the denied or adjusted claims beyond what was provided in Petitioner's audit work paper exhibits. In its PRO, Respondent presented argument disputing the findings on 15 claims for eight recipients. Thus, Respondent presented no evidence and no argument to refute AHCA's overpayment determinations for 56 of the 219 claims reviewed. The disputed claims, audit findings, and Respondent's argument are summarized below. Recipient No. 1, Claim 5: This claim was for 20 units of service (5 hours) for personal care assistance on December 10, 2007. The claim was denied based on insufficient documentation, "no activities documented on service log." Respondent's PRO argues that the audit work papers only include a service log for the week that included December 10, 2008, whereas the documentation for this claim would have been on a different service log for December 10, 2007. However, Respondent failed to offer in evidence a service log covering December 10, 2007, which Respondent claims would have documented that personal care assistance was provided on December 10, 2007, as would be necessary to rebut Petitioner's audit findings of insufficient documentation. It is possible that the service log in the audit work papers was dated incorrectly, or it may be that there was no other service log with an entry for December 10, 2007. Regardless, there is no evidence of sufficient documentation for this claim. Recipient No. 1, Claim 6: This claim was for four units of respite care service on January 7, 2008. The claim was denied because there was no service log. Ironically (juxtaposed with the last challenge), Respondent asserts that a service log in the audit work papers for the week ending January 13, 2007, is the correct service log, but that it was dated incorrectly. Even if Respondent's assertion (not supported by any testimony or evidence) is correct, Respondent overlooks the fact that the misdated service log would support Petitioner's denial of Claim 6, because that service log has no respite care entry on January 7, 2007. Therefore, either because there is no service log at all for January 7, 2008, or because the service log for January 7, 2007, contains no respite care hours, Claim 6 was properly denied. Recipient No. 1, Claim 7: Claim 7 was for four units of respite care service on January 25, 2008. The claim was denied, again because there was no service log. A service log in the work papers for the week including January 25, 2008, shows zero hours of respite care on January 25, 2008, but four hours of respite care each on January 26 and 27, 2008, which was all the respite care authorized for the week. Respondent claims in its PRO, with no supporting documentation or testimony, that there was a clerical error. According to Respondent's PRO assertion, respite care was provided to Recipient No. 1 on Friday, January 25, 2008, as billed, but was incorrectly recorded on January 26, 2008. But Respondent's PRO assertion is not evidence and cannot be the basis for a finding of fact. The fact remains that Respondent billed Medicaid for respite care services provided on January 25, 2008, and was paid for those services, but there is no documentation that the services were provided. Moreover, no evidence was offered to show that Respondent was not paid for all of the documented respite care hours on January 26, 2008, which Respondent now claims were not all provided that day. Recipient No. 2, Claim 8: Respondent billed Medicaid for 28 units (seven hours) of companion care services on February 10, 2008. The claim was adjusted by disallowing 14 units of service, based on the finding that the documentation does not support the number of units of service billed. The only documentation describing the companion care services provided was the following statement signed by the provider: "Today we went to the Library. She was very happy looking at different magazines and to [sic] different books. She was seating [sic] for a while watching the books." Respondent argues in its PRO that Petitioner arbitrarily reduced the claimed units, because the documentation is sufficient to establish the activity, even if all things done at the library were not listed. However, AHCA reasonably found excessive a claim for seven hours at a library to look at magazines and books, absent more detail and more information, which Respondent failed to provide by way of testimony or documentary evidence. Respondent's arguments that the documentation was "sufficient to establish the activity" and the reduction was "arbitrary," are not evidence to refute the contrary finding that the units billed were excessive. Recipient No. 2, Claim 15: This claim was for eight units of personal care assistance on October 16, 2008. The claim was denied due to lack of a service log. Respondent points out that there is a service log, showing two hours (eight units) of personal care assistance on October 16, 2008. However, there is an unexplained anomaly on this service log. The service log is filled out, in part, by typewriting and, in part, by handwriting. Typewritten in the blank for the total number of personal care assistance hours for the week was ten hours, but in handwriting, the "0" was changed to a "2," changing the total to 12 hours. The daily entries, all typewritten, add up to 12 hours. Therefore, AHCA could reasonably question this claim, without explanation of the service log anomaly. If the total hours of personal care assistance that week was actually ten, it may be that the entry of two hours for October 16, 2008, was not done contemporaneously with the service, but, rather, at the end of the week when the document was signed, and it became apparent that there was a shortage of personal care assistance hours that week. While bad motives are not attributed to Respondent or to the individual caregiver who completed the form, the anomaly on the form is sufficient to support Petitioner's audit finding, and Respondent has failed to rebut that finding with evidence explaining the anomaly in the documentation. Recipient No. 3, Claim 12: This claim was for 20 units (five hours) of respite care service on June 20, 2008. The claim was denied based on a finding of no documentation to support the billing. The service log for that week shows zero hours of respite care on June 20, 2008, a Friday. Five hours of respite care was provided on each weekend day, for a total of ten hours, which was all that was authorized. Respondent argued in its PRO that this was another clerical error, and the amount billed is documented under June 21 and June 22, 2008. Once again, however, Respondent provided no testimony or evidence to support this assertion. Once again, the fact remains that Respondent billed Medicaid for respite care services provided on June 20, 2008, and was paid for those services, but there is no documentation that they were provided. And once again, Respondent failed to prove that it was not reimbursed for the claimed respite care on the days on which Respondent now claims the service was not actually provided. Recipient No. 6, Claim 5: Respondent billed Medicaid for four units of companion care service on May 15, 2008. This claim was denied because the documented activities billed under companion care--meal preparation and washing dishes--were unauthorized by the support plan for companion care services. Respondent argued in its PRO that teaching a recipient meal preparation is a "meaningful activity." However, the issue is not whether it is "meaningful," but whether it is an authorized activity as part of the companion care service authorization. According to the support plan, the recipient was also authorized to receive personal care assistance. Personal care assistance was authorized to maintain the recipient's hygiene and help with his personal care needs. Companion care was authorized to give the recipient meaningful days to visit places and make new friends. Meal preparation and washing dishes fall within the personal care assistance category and not within the authorized companion care, as described in the support plan. This claim was properly denied. Recipient No. 9, Claim 12: This claim was for 24 units of companion care service on May 14, 2008. The claim was adjusted, allowing three hours instead of the six hours claimed, based on a finding that the documentation did not support the number of units billed. The only documentation describing what was done in this six-hour period was "parks," with no additional detail or information to justify the amount of time claimed. With the absence of detail, AHCA reasonably found that a six-hour claim for "parks" was excessive. Respondent argued in its PRO that the activity is appropriate, and the number of units billed is in line with the service. Respondent presented no evidence to establish the facts or opinions argued in its PRO. Respondent's unsupported assertions are not evidence to refute the contrary finding that the claim was excessive. Recipient No. 14, Claim 1: This claim was for 16 units of non-residential support services on January 2, 2007. The claim was denied on the basis of insufficient documentation, as there was no daily progress note. Respondent argues that the weekly service log is sufficient documentation. The service log for the week including January 2, 2007, shows that non- residential support services were provided from 8:00 a.m. to 12 noon on three consecutive days--January 1, 2, and 3, 2007. No information is provided regarding the activities done each day. Instead, a single-block description is provided, presumably of all activities done over the three-day, 12-hour period. The description was: Get in order all of his money Get in order gift certificates [Illegible]ing money The support plan goals for non-residential support services for this recipient were to help the recipient learn the value of money, learn to make purchases, and pay for them. Respondent argues in its PRO that the activities summarized above for the three-day period are "geared toward the recipient's stated goals[.]" While that is apparently true, the summary is inadequate to justify the claim for four hours each day for a three-day period. As Petitioner notes in the audit, there should be daily progress notes specifying what was done each day. Indeed, daily progress notes are required by the Developmental Disability Waiver Services Coverage and Limitations Handbook (Waiver Handbook). See Waiver Handbook, Ch. 2-55, Non- Residential Support Services, Documentation Requirements, No. 5 ("Daily progress notes for each day services were provided."). Recipient No. 15, Claim 9: Respondent billed Medicaid for 32 units (eight hours) of companion care services on May 10, 2008. AHCA adjusted the claim to allow 14 units of service. AHCA denied 16 units of service because the documentation did not support the amount billed. Two units of service were denied for time spent doing laundry, an unauthorized activity for companion care. The service log showed that on May 10, 2008, companion care was recorded from 11 a.m. until 7 p.m., a total of eight hours. In addition, another four hours were logged for personal care services, described as shampoo, bathroom cleaning, bedroom cleaning, and laundry. The description of the companion care services for that day was "restaurant" and "laundry." Respondent argued in its PRO that the claim was directly connected to the goals for recipient no. 15, which include activities to reduce depression and avoid suicidal tendencies. However, Respondent failed to address the points made in the audit--that the documentation does not support the number of units of service claimed and that laundry is an authorized activity for personal care assistance, not companion care. Petitioner's auditor reasonably found that eight hours for "restaurant and laundry" were excessive, and, indeed, Petitioner was generous in allowing three and one-half hours for "restaurant," while disallowing only one-half hour billed as companion care for doing laundry. The claim was properly adjusted; Respondent offered no evidence or argument to the contrary. Recipient No. 16, Claims 3, 4, 5, 7, and 8: These claims were each for 12 units of companion care services on different days. Each of these claims was adjusted by subtracting one unit of service from the 12 units claimed, because the documentation showed that an unauthorized activity--feeding--was included. The applicable support plan authorized companion care services for the following goals: "Wants to have meaningful days and socialize as well as buy things of his interests; Wants to go to the library to get videos." The recipient was also authorized for personal care assistance provided by a different provider (not Respondent) to meet the following goal: "Wants to be helped with his personal care needs." Respondent argued in its PRO that the recipient needs to be fed through a bag and learn how to perform personal care, so these are activities for which he needs assistance. Respondent's argument, unsupported by any testimony or documentary evidence, misses the point. The recipient was indeed authorized to receive "help with his personal care needs," but the authorized service for that activity was personal care assistance, not companion care, to be provided by a different provider, not Respondent. Respondent failed to refute the finding that the claims included an unauthorized activity. Petitioner reasonably adjusted these claims by deducting one unit of service from each claim. Petitioner's Costs Petitioner presented an exhibit at hearing, updated after the hearing, setting forth its investigative and expert witness costs. Respondent did not object to or dispute the reasonableness of Petitioner's documented costs. Through the final hearing, Petitioner's total investigative and expert witness costs were $4,087.19. Respondent took the opportunity offered to respond or object to Petitioner's updated cost submittal, but Respondent's response did not actually respond or object to Petitioner's updated costs. Instead, Respondent asserted that an offset should be applied to reduce any award of Petitioner's costs by what would be, in effect, a discovery sanction. Respondent's request for an offset is based on the apparent fact that in pre-hearing discovery, counsel for Petitioner agreed to make AHCA's expert witness available for deposition in Tallahassee. Although the expert witness appeared for his deposition, he had not yet reviewed the case material because the file had not yet made its way into his hands. Counsel for Respondent traveled to Tallahassee for the deposition and for business of other clients. After the deposition, counsel for AHCA expressed his apologies, and although he could not commit, he stated he would attempt to get some cost reimbursement for Respondent. Apparently, that never happened. Respondent now seeks recovery of costs for attending a deposition that had to be rescheduled after AHCA's expert witness was better prepared. Even if Respondent had timely filed a motion shortly after this occurrence for costs imposed as a discovery sanction, Respondent offers no authority for ordering reimbursement of costs under these circumstances. Respondent could have subpoenaed the expert and the necessary documents for deposition; Respondent could have asked for entry of an order of pre-hearing instructions to impose requirements on expert witness discovery; Respondent took none of these steps. No subpoena was violated; no pre-hearing order was violated; no rule of civil procedure for discovery was violated.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Agency for Health Care Administration, enter a final order requiring Juana Rodriguez, d/b/a Access Road, Inc.: To repay the sum of $159,741.86, for overpayments on claims that did not comply with the requirements of Medicaid laws, rules, and provider handbooks; To pay interest on the sum of $159,741.86 at the rate of ten percent per annum from the date of the overpayment determination; To pay a fine of $1,000 for failure to furnish all Medicaid-related records within the requested timeframe; To pay a fine of $2,500 for the patterned violations of the requirements of Medicaid laws, rules, and provider handbooks; and To pay $4,087.19 to reimburse Petitioner for its costs. DONE AND ENTERED this 26th day of March, 2012, in Tallahassee, Leon County, Florida. S ELIZABETH W. MCARTHUR 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 26th day of March, 2012.
