The Issue The issue for determination is whether Petitioner must reimburse Respondent for payments totaling $193,232.50 that Petitioner admittedly received between January 1, 1999, and June 15, 2000, under the Medicaid Program for the provision of universal precaution kits to AIDS patients, where the supplies in question allegedly were not specifically listed in the patients’ respective plans of care.
Findings Of Fact The evidence presented at final hearing established the facts that follow. The Parties and the Stake 1. The Agency is responsible for administering the Florida Medicaid Program. As one of its duties, the Agency must recover "overpayments . . . as appropriate," the term "overpayment" being statutorily defined to mean "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." See Section 409.913 (1) (d), Florida Statutes. 2. This case arises out of the Agency's attempt to recover alleged overpayments from Full Health, a Florida-licensed home health agency. As an enrolled Medicaid provider, Full Health is authorized, under a provider agreement with the Agency, to provide services and supplies to Medicaid recipients. 3. It is undisputed that, at all times material to this proceeding, Full Health was authorized to provide home and community-based ("HCB") services and supplies to Medicaid recipients eligible for assistance under a program—more about which below—called the Project AIDS Care Waiver ("PAC Waiver"). 4. The "audit period" that is the subject of the Agency's recoupment effort is January 1, 1999 to June 15, 2000. It is undisputed that, during this audit period, the Medicaid Program reimbursed Full Health a total of $193,232.50 for "universal precaution kits" (packages containing disposable protective gear such as latex gloves, surgical masks and gowns, and eye shields) that Full Health had delivered to 57 clients in the PAC Waiver program. The Agency contends that the entire $193,232.50 is subject to recoupment because, under the PAC Waiver program, case manager approval is a necessary precondition to Medicaid reimbursement, and none had been given for the universal precaution kits at issue. PAC Waiver Program Basics 5. Broadly speaking, the State of Florida has obtained waivers from certain federal Medicaid requirements to allow for the provision of specified HCB services to patients at risk of institutionalization. See Rule 59G-8.200(1), Florida Administrative Code. The PAC Waiver program is one of six authorized HCB services waiver programs. Rule 59G-8.200(9), Florida Administrative Code.* 6. The PAC Waiver program "provides a range of HCB services designed to meet the needs of people living with AIDS related conditions." Rule 59G-8.200(14) (a), Florida Administrative Code. To be eligible for benefits under the PAC Waiver program, a recipient must satisfy a number of criteria, including having been diagnosed with AIDS. Rule 59G- 8.200(14) (c)2, Florida Administrative Code. 7. The Florida Medicaid office has prepared and furnishes to authorized Medicaid providers a manual entitled Project AIDS Care (PAC) Waiver Services Coverage and Limitations Handbook (the "Handbook"). In their joint Prehearing Stipulation, the parties agreed that the April 1999 version of the Handbook was in effect during the audit period, and this stipulation is accepted as fact. 8. The Handbook does not appear to have been incorporated by reference into the Florida Administrative Code as an Agency rule.?. Full Health, however, has not challenged the Agency's reliance on the Handbook as an authoritative source of the policies and procedures relating to reimbursement for services provided under the PAC Waiver program. To the contrary, not only did Full Health stipulate that the April 1999 Handbook was win effect" during the relevant period, but also it introduced the entire April 1999 Handbook into evidence as Petitioner's Exhibit 1. 9. In addition, Full Health's President, Ms. Gonzalez, credibly described Petitioner's Exhibit 1 as the place "where you find all of the rules and regulations that you have to follow when it comes to this kind of patients [sic] [meaning PAC Waiver recipients}]." Transcript of Final Hearing at 461. The trier believes Ms. Gonzalez‘s testimony on this point and adopts it as a fact. For purposes of this case at least, the Handbook sets forth pertinent, applicable Medicaid policies and claims processing requirements. See Rule 59G-8.200(14) (£), Florida administrative Code ("Medicaid will make payment for services provided to Project AIDS Care recipients in accordance with applicable Medicaid claims processing requirements.") .° 10. As the Handbook explains, "[e]very PAC waiver recipient must have a case manager who is employed by a Medicaid-enrolled PAC waiver case management agency." Handbook at 2-1.4 See also Rule 59G-8.200(14) (c)6., Florida Administrative Code (patient must have a case manager to be eligible under this waiver). 11. Among the case manager's responsibilities is the development of a "plan of care" for each PAC Waiver patient. "A plan of care is a written document that describes the service needs of a recipient, specifies the services to be provided, the provider of services, how frequently the services are to be provided, the duration of the services, and their estimated cost." Handbook at 2-7. The case manager is required to "review plans of care on an ongoing basis, but no less frequently than every six months." Rule 59G-8.200(14) (e)1.d., Florida Administrative Code. 12. Significantly, the "plan of care and the services specified in the plan of care are considered authorized when [the plan of care] is signed by the case manager." Handbook at 2-9. The case managers, however, do not have carte blanche to approve services. Rather, their discretionary approval authority is capped at $2,000 per month per patient, and "Medicaid must approve plans of care exceeding a cost of $2,000 per month before services are considered authorized." Handbook at 2-9. Indeed, "[i]f the total estimated cost of the Project BIDS Care services exceeds [this monthly limit], prior approval must be obtained from Medicaid before the service authorizations can be made." Rule 59G-8.200(14) (e)1.d., Florida Administrative Code. 13. Case manager approval, as manifested in a signed plan of care for the individual patient, is essential. Without it, HCB services rendered to a PAC Waiver patient are not Medicaid compensable, regardless of medical necessity, efficacy, the provider's competence or good intentions, or any other compelling justification. The Handbook is blunt and unambiguous about this: "Services not specified in the plan of care are not considered approved or authorized. Medicaid reimbursement for services furnished, but not specified in the plan of care for that specific time period are subject to recoupment." Handbook 2-9 (emphasis added); see also Rule 59G-8.200(6) (g), Florida Administrative Code. 14. The Handbook further informs providers: PAC waiver services are based on individual recipient needs and must be in the recipient’s plan of care. All recipients enrolled in the PAC waiver must receive case management and at least one other waiver service. Medicaid will reimburse only waiver services that are specifically identified in the approved plan of care by service type, frequency and duration. Handbook at 2-12 (emphasis added). 15. The case manager performs another crucial function in the delivery of services to PAC Waiver recipients: he or she instructs participating providers (such as Full Health) to commence furnishing an approved service or services to a particular patient. The case manager's instructions to the provider must be in writing on an instrument known as "service authorization." The applicable administrative rule directs: The case manager shall develop written service authorizations for all services except case management. These authorizations will provide sufficient information to allow the provider to bill for services with a minimum of assistance. The authorizations will parallel the plans of care in terms of specificity of the service, the duration of the service, frequency of service, and the total authorized amount to be spent. If a case manager authorizes a service orally, he will send a written authorization to the provider 10 within five working days as confirmation of the oral authorization. Rule 59G-8.200(14) (e)1.e., Florida Administrative Code. 16. ‘he Handbook amplifies the foregoing rule provision, explaining that {[iln order to implement services authorized on a plan of care, the case manager must transmit service authorizations to specific providers of PAC waiver services included in the plan of care. Service authorizations must be sent to PAC waiver services providers within five working days of services being authorized on the recipient's written plan of care. Handbook at 2-10. 17. Included with the Handbook, in Appendix Cc, is a Service Authorization form that case managers are encouraged to use. The instructions for use of this form state, in pertinent part, as follows: The case manager should notify providers that services have been authorized by using “the PAC Service Authorization form. Each enrolled Medicaid PAC program service provider must receive authorization before providing services to the PAC client. The authorization form includes the following: Make sure that all authorized services are contained in the current plan of care and that the services are based on needs identified in the needs assessment and that the level of service is justified in_the case narrative. Handbook, Appendix C (boldface in original). 11 18. The Service Authorization form reminds the provider that “[slervices beyond the amount, duration, and scope authorized [hereby] will not _be reimbursed.” Handbook, Appendix C (boldface in original). 19. Individuals eligible for assistance under the PAC Waiver program may receive a number of covered services, including the provision of “consumable medical supplies.” See Rule 59G-8.200(14) (b)4., Florida Administrative Code (setting forth qualifications needed to provide consumable medical supplies under PAC Waiver program). 20. The term "consumable medical supplies" is defined by rule to mean "expendable, disposable, and non-durable items used for the treatment of specific injuries or diseases or for persons who have chronic medical or disabling conditions. These supplies exceed those routinely furnished by the provider in conjunction with skilled care and home health aide visits." Rule 59G-8.200(2) (h), Florida Administrative Code (emphasis added). 21. The Handbook defines “consumable medical supplies” somewhat differently, incorporating several elements of the rule (expendable, disposable, non-durable) and adding to them a gloss that affords a fuller description of the covered items: Consumable medical supplies are medically- necessary medical or surgical items that are consumable, expendable, disposable or non- 12 durable, and appropriate for use in the recipient’s home. Medicaid only reimburses consumable medical supplies that if not provided could reasonably cause the recipient to require emergency treatment, become hospitalized, or be placed in a long- term care facility. Consumable medical supplies must not exceed one month’s usage. Handbook at 2-35 (emphasis added). 22. Consumable medical supplies fall within a Medicaid billing category called “Specialized Medical Equipment and Supplies” that is denoted by the procedure code W9994. Also included in this category of services is durable medical and adaptive equipment which “is medically-necessary . . . and can withstand repeated use . . . in the recipient’s home.” Handbook at 2-34. Examples of the latter are mattresses, humidifiers, and wheelchairs. 23. Medicaid will reimburse a provider of specialized medical equipment and supplies only for items furnished that are (1) “[slpecifically identified in the recipient's plan of care” and (2) “[p]lrescribed by a licensed physician, advanced registered nurse practitioner, or physician assistant designee.” Handbook at 2-34. 24. All Medicaid providers, including case managers and home health agencies such as Full Health, must “retain medical, professional, financial, and business records pertaining to 13 services and goods furnished to a Medicaid recipient and billed to Medicaid for a period of 5 years after the date of furnishing such services or goods. The agency may investigate, review, or analyze such records, which must be made available during normal business hours.” Section 409.913(8), Florida Statutes; see also Section 409.907(3)(c), (e), Florida Statutes (prescribing provisions respecting records retention and review for inclusion in Medicaid provider agreements) . 25. By rule, the Agency specifically requires that case managers retain plans of care and service authorizations, among other documents, in their files. Rule 59G-8.200(14) (e)2.f£., g., Florida Administrative Code. The files of other participating provider agencies, such as Full Health, must contain at least the service authorizations, provider eligibility documents, and provider enrollment documents. Rule 59G-8.200(14) (e)3., Florida Administrative Code. Full Health's Provision of Universal Precaution Kits During the Audit Period 26. Full Health delivered the universal precaution kits at issue to 57 PAC Waiver recipients between the dates of November 15, 1999, and May 10, 2000——a period of about six months (the "Focal Period") that comprises a subset of the audit period. Ms. Gonzalez has been employed by Full Health since October 1999 as the company's President, a position she held, 14 therefore, during the entire Focal Period. Her extensive testimony on Full Health's business practices regarding the provision of universal precaution kits was believable and forms the primary basis of the fact findings set forth in this section of the Recommended Order. 27. During the Focal Period, Full Health automatically furnished universal precaution kits to all PAC Waiver recipients in the ordinary course of its business. Full Health followed this routine in part to comply with doctors’ orders that were communicated directly to Full Health verbally but never reduced to writing, and also because Ms. Gonzalez understood that the routine provision of universal precaution kits to AIDS patients was a generally accepted, standard practice in the medical community, one that home health agencies customarily observed. 28. As a matter of course, then, Full Health delivered universal precaution kits to each patient once a week, and a week's supply for each patient might consist of multiple universal precaution kits. Full Health thereafter would submit claims to Medicaid for payment on each individual universal precaution kit delivered, at a cost of $55.00 apiece, reporting a separate date of service for every single one. For example, during the month of January 2000, Full Health delivered 27 universal precaution kits to a patient named J.G. Full Health's subsequent Medicaid claims showed that J.G. had received this 15 $55.00 service on each day of the month (including New Year's Day) except January 9, 16, 23, and 30—all Sundays. 29. Full Health received not one service authorization for any of the universal precaution kits it delivered to PAC Waiver patients during the Focal Period. Indeed, these 57 patients’ case managers neither authorized, nor had any involvement whatsoever in, Full Health's provision of the universal precaution kits at issue. 30. Although Ms. Gonzalez credibly denied having seen any plans of care for the 57 patients who received universal precaution kits from Full Health during the Focal Period, her testimony nevertheless establishes that, more likely than not, the pertinent plans of care failed to identify universal precaution kits specifically as an authorized service. This crucial fact may be (and has been) reasonably inferred from Ms. Gonzalez's unequivocal and unambiguous testimony that none of the case managers involved had authorized any of the universal precaution kits that were delivered during the Focal Period, and none had sent Full Health a service authorization approving the provision of universal precaution kits.°* 31. The relevant plans of care (Respondent's Exhibits 13 through 69)° corroborate Ms. Gonzalez's testimony that the case managers were not involved with, and did not authorize, the provision of universal precaution kits during the Focal Period. 16 To the point, these documents—in which universal precaution kits are not specifically identified—supplement Ms. Gonzalez's testimony, in the sense of completing the picture that she herself had painted rather vividly; and, moreover, they confirm the accuracy of her perception and the acuity of her recollection of the historical facts. But, it must be stressed, the finding in the immediately preceding paragraph was not based on Respondent's Exhibits 13 through 69; the fact-finder could have and would have made the same finding without these documents, which have been considered as secondary evidence only—and then largely because to have ignored them completely would have violated the evidentiary principles that govern administrative proceedings.’ Ultimate Factual Determinations 32. The greater weight of evidence establishes—indeed, it is undisputed—that the universal precaution kits at issue were routinely furnished by Full Health in conjunction with home health aide visits.® Moreover, Rule 59G-8.200(2) (h), Florida Administrative Code, affirmatively and unambiguously places such routinely furnished items outside the boundaries which delimit "consumable medical supplies." Thus, as a matter of fact, the universal precaution kits at issue are not Medicaid-compensable “consumable medical supplies" as the rule defines that term. 17 33. Additionally, a preponderance of evidence demonstrates that none of the universal precaution kits that Full Health furnished to 57 patients during the Focal Period was specified in any patient's plan of care for the Focal Period. Therefore, the entire $193,232.50 that Medicaid indisputably paid to Full Health in reimbursement for these universal precaution kits was an "overpayment" as defined in Section 409.913(1) (d), Florida Statutes. This amount is subject to recoupment. See Rule 59G- 8.200(6) (g), Florida Administrative Code.
Conclusions J. Everett Wilson, Esquire Michael Gennett, Esquire Wilson, Suarez & Lopez Union Planters Bank Building 2151 LeJeune Road, Mezzanine Coral Gables, Florida 33134-4200 L. William Porter, II, Esquire Agency for Health Care Administration 2727 Mahan Drive, Suite 3431 Fort Knox Executive Center III Tallahassee, Florida 32308-5403
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency enter a final order requiring Full Health to repay the Agency the principal amount of $193,232.50. DONE AND ENTERED this 25% day of dune, 2001, in Tallahassee, Leon County, 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 25% day of June, 2001.
Conclusions THIS CAUSE came on for consideration before the Agency for Health Care Administration, which finds and concludes as follows: 1. The Agency issued the above-named Respondent the attached Administrative Complaint. (Ex. 1) 2. The Respondent requested an administrative hearing, but subsequently withdrew the request for hearing. (Ex. 2) Based upon the foregoing, it is ORDERED: 3. The findings of fact and conclusions of law set forth in the Administrative Complaint are adopted and incorporated by reference into this Final Order. 4. The Respondent’s license is REVOKED. 5. In accordance with Florida law, the Respondent is responsible for retaining and appropriately distributing all client records within the timeframes prescribed in the authorizing statutes and applicable administrative code provisions. The Respondent is advised of Section 408.810, Florida Statutes. 6. In accordance with Florida law, the Respondent is responsible for any refunds that may have to be made to the clients. 7. The Respondent is given notice of Florida law regarding unlicensed activity. The Respondent is advised of Section 408.804 and Section 408.812, Florida Statutes. The Respondent should also consult the applicable authorizing statutes and administrative code provisions. The Respondent is notified that the cancellation of an Agency license may have ramifications potentially affecting accrediting, third party billing including but not limited to the Florida Medicaid program, and private contracts. Filed December 17, 2013 10:36 AM Division of Adnhinistrative Hearings ORDERED at Tallahassee, Florida, on this le day of Meeenher. 2013. Elizabeth Dudek, Secretary Agency for Heglth Care Administration
Other Judicial Opinions A party who is adversely affected by this Final Order is entitled to 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 of 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. CERTIFICATE OF SERVICE I CERTIFY that a true and correct copy of the foregs cing was furnished to the the peso named. below by electronic mail or the method designated on this {2 ay of > 2013. Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308-5403 Telephone: (850) 412-3630 Jan Mills Shaddrick Haston Facilities Intake Unit Assisted Living Unit Manager Agency for Health Care Administration Agency for Health Care Administration (Electronic Mail) (Electronic Mail) Katrina Derico-Harris Medicaid Accounts Receivable Agency for Health Care Administration (Electronic Mail) Donah Heiberg, Field Office Manager Local Field Office Agency for Health Care Administration (Electronic Mail) Shawn McCauley Medicaid Contract Management Agency for Health Care Administration (Electronic Mail) Sharon Jones, Assistant General Counsel Office of the General Counsel Agency for Health Care Administration (Electronic Mail) Thomas J. Walsh IJ, Esquire Clay B. Adkinson, Esquire Presiding Officer Adkinson Law Firm Agency for Health Care Administration Post Office Box 1207 (Electronic Mail) DeFuniak Springs, FL 32435 ee ee (U.S. Mail) NOTICE OF FLORIDA LAW 408.804 License required; display.-- (1) It is unlawful to provide services that require licensure, or operate or maintain a provider that offers or provides services that require licensure, without first obtaining from the agency a license authorizing the provision of such services or the operation or maintenance of such provider. (2) A license must be displayed in a conspicuous place readily visible to clients who enter at the address that appears on the license and is valid only in the hands of the licensee to whom it is issued and may not be sold, assigned, or otherwise transferred, voluntarily or involuntarily. The license is valid only for the licensee, provider, and location for which the license is issued. 408.812 Unlicensed activity. -- (1) A person or entity may not offer or advertise services that require licensure as defined by this part, authorizing statutes, or applicable rules to the public without obtaining a valid license from the agency. A licenseholder may not advertise or hold out to the public that he or she holds a license for other than that for which he or she actually holds the license. (2) The operation or maintenance of an unlicensed provider or the performance of any services that require licensure without proper licensure is a violation of this part and authorizing statutes. Unlicensed activity constitutes harm that materially affects the health, safety, and welfare of clients. The agency or any state attorney may, in addition to other remedies provided in this part, bring an action for an injunction to restrain such violation, or to enjoin the future operation or maintenance of the unlicensed provider or the performance of any services in violation of this part and authorizing statutes, until compliance with this part, authorizing statutes, and agency rules has been demonstrated to the satisfaction of the agency. (3) It is unlawful for any person or entity to own, operate, or maintain an unlicensed provider. If after receiving notification from the agency, such person or entity fails to cease operation and apply for a license under this part and authorizing statutes, the person or entity shall be subject to penalties as prescribed by authorizing statutes and applicable rules. Each day of continued operation is a separate offense. (4) Any person or entity that fails to cease operation after agency notification may be fined $1,000 for each day of noncompliance. (5) When a controlling interest or licensee has an interest in more than one provider and fails to license a provider rendering services that require licensure, the agency may revoke all licenses and impose actions under s. 408.814 and a fine of $1,000 per day, unless otherwise specified by authorizing statutes, against each licensee until such time as the appropriate license is obtained for the unlicensed operation. 3 (6) In addition to granting injunctive relief pursuant to subsection (2), if the agency determines that a person or entity is operating or maintaining a provider without obtaining a license and determines that a condition exists that poses a threat to the health, safety, or welfare of a client of the provider, the person or entity is subject to the same actions and fines imposed against a licensee as specified in this part, authorizing statutes, and agency rules. (7) Any person aware of the operation of an unlicensed provider must report that provider to the agency.
The Issue Are the Medicaid payment claims of Respondent Alternative Care Staffing, Inc. (Alternative), for companion care services authorized by support plans and waiver support coordinators and provided in the community to recipients residing in group homes reimbursable services under the Home and Community-Based Wavier (HCB Waiver) program? Are Alternative’s Medicaid service claims for allegedly unauthorized activities reimbursable under the HCB Waiver program, or may the Agency for Health Care Administration (Agency) recoup payment for the claims? Did Alternative receive payment for services provided by ineligible staff? Are Alternative’s allegedly overlapping Medicaid service claims actually overlapping? Did the Agency meet: (1) its burden of proof for imposing fines, and (2) its statutory obligations before imposing fines? Whether or how much, due to mitigating factors, the Agency can fine Alternative for the items identified as overpayments in Agency’s Exhibit 6, Amended Final Audit Report dated May 25, 2011; subsequently, modified in Agency’s Exhibit 7, Current Overpayment Calculations and Agency Work Papers; and finally modified during the hearing as shown in Exhibit A to the proposed recommended orders and this Recommended Order.
Findings Of Fact Background The Medicaid program is a federal and state partnership that pays the costs of providing health care and related services to qualified individuals, including people with developmental disabilities. The Agency is the single state agency authorized to make payments for medical assistance and related services under Florida’s Medicaid program. § 409.902, Fla. Stat. (2013). The Legislature charged the Agency with overseeing the activities of Medicaid recipients and their providers and with recouping overpayments. §§ 409.913 and 409.913(1)(e), Fla. Stat. Florida law defines an “overpayment” as “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 practice, fraud, abuse, or mistake.” During the relevant time period, Florida law defined “abuse” as “provider practices that are inconsistent with generally accepted business or medical practices and that result in an unnecessary cost to the Medicaid program or in reimbursement for goods or services that are medically unnecessary, upcoded, or fail to meet professionally recognized standard of health care.” § 401.913(1)(a), Fla. Stat. “Abuse may also include a violation of state or federal law, rule or regulation.” (Pet. Ex. 11, Provider General Handbook (Jan. 2007), p. 1083; Pet. Ex. 11, Provider General Handbook (July 2008), p. 1092). This definition is much broader than the everyday definition of abuse as a “corrupt practice or custom.”1/ “Overpayment includes 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 claims, unacceptable practices, fraud, abuse or mistake.” (Pet. Ex. 11, Provider General Handbook (Jan. 2007), p. 1083; Pet. Ex. 11, Provider General Handbook (July 2008), p. 1092). As part of the Agency’s fulfillment of the statutory directive to investigate overpayments, the Bureau of Medicaid Program Integrity (MPI) in the Office of the Inspector General routinely conducts audits. A Medicaid provider is a person or entity that has voluntarily chosen to provide and be reimbursed for goods or services provided to eligible Medicaid recipients. A provider’s participation requires an agreement with the Agency to provide services. Alternative has been a Medicaid provider since 2004. Florida’s Medicaid program includes a program for people with developmental disabilities. It uses the state and federal Medicaid funds for home and community-based services. The program is known as the Home and Community-Based Waiver or HCB Waiver. Florida’s Agency for Persons with Disabilities (APD) administers the HCB Waiver pursuant to statute. APD is responsible for the day-to-day operation of the HCB Waiver. APD is the primary point of contact and source of information for HCB Waiver providers, such as Alternative. The Interagency Agreement (Agreement) between the Agency and APD establishes the relationship between the two agencies and their obligations and roles in this mutual undertaking. Alternative and other providers are not parties to the Agreement The Agreement’s Delegation of Authority for Waiver Operation, Section B(2) (R. Ex. B), states: Pursuant to the approved development disabilities home and community-based waivers, [the Agency] has authorized [APD] to operate the waivers on a day-to-day basis, in accordance with this agreement. This agreement memorializes an arrangement under which APD will operate and make appropriate decisions based upon approved policy on behalf of and under the oversight of [the Agency]. The Agreement obligates both agencies to operate the waiver in accordance with laws, rules, regulations, and handbooks. Section B(4)(c) of the Agreement requires the Agency to coordinate with APD “on all [waiver] administrative rules, amendments to rules, policies or regulations that pertain to the waiver.” Section B(4)(g) places responsibility for recouping overpayments to HCB Waiver providers on the Agency. Section B(4)(a) reserves to the Agency “final authority on all policies, procedures, rules, regulations, manuals, handbooks, and statewide quality assurance monitoring procedures pertaining to the development disabilities waivers.” Section B(5)(e) requires APD to advise the Agency in advance of any proposed regulations or manuals developed by APD. Section 5(g) obligates APD to assure payments to “providers are reconciled based upon individual cost plans in the DD [Developmental Disability] and F/SL [Family and Support Living] Waiver programs and are within the annual program budgets.” Under the HCB Waiver, recipients working with independent waiver service coordinators plan their services according to the recipient’s needs. The result is a detailed support or cost plan. The support plan articulates the services and the goals for each type of service needed. It 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 service authorization documents also identify which Medicaid-contracted providers will provide each of the approved services. APD reviews and approves the support plans. The 2007 and 2008 versions of the Developmental Disabilities Services Coverage and Limitations Handbook (DD Handbook) specify in chapter 2-5 that in order for a recipient to receive a service, the service must be identified on the recipient’s support plan approved by APD. Providers, like Alternative, rely upon the support plans and service authorizations to determine what services to provide and if the services are authorized for payment. At all times material to this case, Alternative has been a provider of HCB Waiver services to Medicaid recipients, pursuant to a Medicaid provider contract with the Agency and a Medicaid Waiver Services Agreement with APD. Alternative provides most services through independent contractors. The complex requirements governing providers in the Medicaid program are explicated in rules of the Agency and in the Medicaid Provider General Handbook, adopted by rule. More requirements for providers in the HCB Waiver are imposed by rules of APD and the DD Handbook, developed by APD and the Agency, and adopted by Agency rule. For the time period in this case, the June 2007 and June 2008 versions of the Medicaid Provider General Handbook were in effect. For the time period of this case, the June 2007 and December 2008 versions of the DD Handbook were in effect. The Chase The Medicaid payment process differs from a typical commercial transaction. Robi Olmstead, administrator for the Agency’s Office of the Inspector General, Medicaid Program Integrity, described the process as “pay and chase.” The Agency accepts claims for payment at face value with very little review and promptly pays them. But the Agency has the authority to review claims long after payment and seek recoupment, “chase,” if it determines the claim was not proper. The Agency’s MPI office does the “chasing” by conducting provider audits. In 2011, the Agency audited Alternative’s claims for the period January 1, 2008, through June 30, 2009. Kristen Koelle, who conducted the audit, selected the time period to take into account the fact that Alternative was a relatively new provider and had a 12-month window of opportunity to submit new claims or void submitted claims. Typically, the Agency audits a two-to-three year period of payments for providers with a longer history. On November 4, 2010, the Agency sent a letter requesting records from Alternative and advising that it was conducting an audit. The letter sought records for 35 of Alternative’s 85 Medicaid recipients to use as a cluster sample. Alternative responded promptly and provided very organized records. The majority of issues identified in the audit involved documentation, not a failure to provide services. The Agency uses a statistical formula to extrapolate overpayments from the records and claims of the samples. The Agency issued a Preliminary Audit Report concluding that Alternative owed $719,680.09 for overpayments for wrongly made and paid claims. After a typical process of communication, supplementation of records, and review of documents, the Agency issued a Final Audit Report reducing the amount to $452,821.65. By the time the hearing started, the Agency had reduced the amount in an Amended Final Audit Report to $155,747.97 and had reduced the proposed fine from $90,564.33 to $31,149.59. By law, the Agency’s audit report creates prima facie proof of overpayments, which a provider has a right to dispute. In this case, there is no dispute about the acceptability or application of the Agency’s statistical formula for extrapolation. The disputes are about which representative claims are properly input into the extrapolation formula. During the hearing, Alternative agreed to several additional claims. The parties jointly prepared an Appendix to their proposed recommended orders identifying the remaining disputed claims. It is attached as Exhibit A to this Recommended Order and adopted by reference. These are the claims the Agency maintains should be used in the formula to determine the full amount of the asserted overpayments. Alternative disagrees. The remaining claims fall into four categories. They are: (1) companion services provided to recipients living in group homes; (2) unauthorized activities; (3) overlapping of support services; and (4) ineligible staff. Services are measured in “units of service” of 15 minutes each. Companion Services for Recipients Living In Group Homes During the time period when the June 2007 DD Handbook was in effect, Alternative collectively provided and was paid for 640 units of service to four waiver recipients who resided in licensed residential facilities or group homes. The recipients are identified in this record as Recipients 7, 13, 14, and 25. Companion services are non-medical care supervision and socialization activities provided to an adult individually. They may be activities such as assistance with grocery shopping, housekeeping, or visiting the library. (DD Handbook, 2007, Chap. 2-27). The June 2007 version of the DD Handbook states: “Recipient’s [sic] living in licensed residential settings, excluding foster homes, are not eligible to receive these [companion] services.” (DD Handbook, 2007, Chap. 2-28). The December 2008 version of the DD Handbook states that companion care services may be provided to residents of a licensed group or foster home. APD approved the support plans for Recipients 7, 13, 14, and 25. The plans plainly stated that each recipient lived in a residential living facility (group home). The support plans also plainly identified companion services among the services to be provided. (Pet. Ex. 8, pp. 491-501; 591-604; 628-636; and 857-864.) In addition, each recipient’s waiver support coordinator provided a service authorization for the companion services. Alternative provided companion services as indicated in the APD approved support plans and the service authorizations. Alternative’s consistent experience with providing companion services to residents in living facilities was that APD approved and paid for providing those services under the June 2007 DD Handbook. Because of the issues raised in the audit, in an e-mail dated May 19, 2011, Joyce Rowe, president of Alternative, wrote Denise Oetinger, regional program supervisor for APD, asking about authorized services during the period January 2008 to June 2009. Ms. Oetinger was an APD liaison to providers who Alternative relied upon to explain the many requirements and conditions of the DD Handbook. Ms. Rowe’s e-mail said: In our preliminary [Agency audit] review we had four individuals which Alt Care received services authorizations for that lived in a group home [stet]. We provided the services out in the community. Kristen Koelle with AHCA Audit Recovery stated in the handbook of limitations up to 12/3/2008 we were not allowed to provide companion services to any individual living in a licensed facility. Of course they wanted to recoup thousands of dollars from our company. Do we have any special provisions or documentation why we were getting these service authorizations sent to us and getting paid for a service which was unauthorized? I called one of the support coordinators because they are responsible in a sense for sending the authorizations. I was told to e-mail you in hope for some answers. Ms. Oetinger replied2/: Ms. Rowe, Companion can be provided to an individual living in a licensed facility, but it must be delivered in the community. So they must leave the home they live in and do something outside the home. This has not changed from handbook to handbook. I will ask that our inter-agency liaison communicate with Kristen Koelle. Thank you for bringing this to our attention and I will get back to you as I have more information. In light of the Agreement, the way in which the Agency and APD held themselves out to providers, the relationship between APD and providers, the practice of relying upon APD for guidance about the HCB Waiver, the approval of the support plans, and the subsequent issuance of service authorizations, Alternative reasonably relied upon APD-approved support plans and the waiver support coordinator-provided service authorizations when providing and obtaining payment for companion services to Recipients 7, 13, 14, and 25. In addition, the weight of the persuasive evidence establishes that Recipients 7, 13, 14, and 25 are the only recipients living in a licensed residential facility for which Alternative received payments for companion services provided during the audit period. Consequently, using those claims to extrapolate to a recipient-wide population is not factually supported. Ineligible Staff Alternative employee Ben Alvarez provided personal care assistance and companion services to Recipient 3. He also provided in-home support services to Recipient 15. For the time period during which Mr. Alvarez provided personal care assistance services, the December 2008 DD Handbook was in effect. Chapter 1-25 required individuals providing the service to “have at least one year of experience working in a medical, psychiatric, nursing or childcare setting or working with recipients who have a developmental disability.” It permitted substitution of specified educational achievements for the experience. Alternative did not have documentation that Mr. Alvarez had the specified alternative educational achievements. It did not have documentation that Mr. Alvarez had worked in a medical, psychiatric, nursing, or childcare setting. Alternative did have documentation that Mr. Alvarez had six years’ experience caring for an adult with developmental disabilities, providing services, including personal care, hygiene, grooming, bathing, and feeding. This individual was a relative of Mr. Alvarez. Nothing in the documentation establishes that the relative Mr. Alvarez was caring for was a Medicaid recipient. Deposition testimony establishes that the individual was a waiver recipient at the time of the deposition, February 13, 2014. But it does not establish that he was a recipient at the time Mr. Alvarez provided services. The deposition is also not part of the documentation maintained by Alternative. In sum, the weight of the persuasive evidence shows Alternative did not have documentation that Mr. Alvarez met the experience or substitute educational requirements of chapter 1-25. For the time period during which Mr. Alvarez provided companion services, the December 2008 DD Handbook was in effect. Chapter 1-18 required individuals providing the service to “have at least one year of experience working in a medical, psychiatric, nursing or childcare setting or working with recipients who have a developmental disability.” It also permitted substitution of specified educational achievements for the experience. The weight of the persuasive evidence shows that Alternative did not document that Mr. Alvarez met the experience or substitute educational requirements of chapter 1-18. Chapter 1-23 of the DD Handbook imposes the same experience and substitution education requirements for providers of in-home support services as required for companion and personal care services. As with them, the weight of the persuasive evidence shows that Mr. Alvarez did not meet the experience or substitute educational requirements. An Alternative employee, known as Ora or Paul Richmond, provided 16 units of companion services to Recipient 11 on March 2, 2009. At that time, the December 2008 DD Handbook was in effect. Chapter 1-18, above, established the experience and requirements for providers of the service. Alternative’s documentation establishes that Mr. Richmond lived with, and helped care for, his disabled father from 2006 to 2008. Among other things, he helped his father with cooking, cleaning, laundry, and bill paying. Alternative’s documentation does not identify what disability Mr. Richmond’s father had, and it does not indicate that Mr. Richmond’s father was a Medicaid recipient. The weight of the persuasive evidence shows Alternative did not document that Mr. Richmond met the experience or substitute educational requirements of chapter 1–18. The Agency paid Alternative for companion services provided by Christopher Rose to Recipients 13 and 14. Mr. Rose provided the services during a period governed by the 2007 DD Handbook. The companion provider requirements of chapter 1-18 of that DD Handbook are the same as those of chapter 1-18 of the 2008 version. Alternative’s documentation for Mr. Rose showed that he had worked as a private-duty companion for an individual with retardation for approximately three years. The documentation did not indicate who the individual was, whether the individual was a Medicaid recipient, or where the services were provided. The weight of the persuasive evidence shows Alternative did not document that Mr. Rose met the experience or substitute educational requirements of chapter 1-18. Documented Activity Support for Billing The Agency paid Alternative for 16 units of service for companion services provided to Recipient 6 on March 27, 2008. The sole documented description for the activity involved was “enjoyed attending alternative office party.” It does not document what the activities were or where the party was. Ms. Rowe testified that the party was not accurately described and that the office social was held in Bradenton, Florida, at Bayshore Gardens. But that is not what the documentation shows. The support plan for Recipient 6 provided that the companion provider “will help [the recipient] participate in activities outside of his home. [Recipient] will also explore volunteer opportunities available to him.” This is in support of the larger goal of teaching him to interact in the community. The documentation for the office party does not document a connection between the support plan and the activity. The Agency paid Alternative for 14 units of companion services provided to Recipient 12 on April 16, 2008. The support plan goals for Recipient 12 are to stay home, be active with his family, identify someone to care for him, go out into the community, be involved in community activities, maintain a healthy weight, and maintain good dental health. Alternative’s documentation for the services on April 16 reports only “[a]ss. with indoor activities.” It provides no other descriptions of the activities. The information is not sufficient to determine what relationship, if any, the activities had to the recipient’s goals. Ms. Rowe testified that the recipient had gone to his community clubhouse that day. But that is not what the entry says, in contrast to an April 17, 2008, entry which specified clubhouse activities. In addition, Ms. Rowe was not the service provider and did not provide information about how she knew what that individual did that day. Her testimony was not persuasive. The Agency paid Alternative for 14 units of service for companion services provided to Recipient 12 on April 30, 2008. Alternative’s documentation for the services on April 30, 2008, reports only “[a]ss. with activities at home.” It provides no other descriptions of the activities. The information is not sufficient to determine what relationship, if any, the activities had to the recipient’s community-oriented goals. The Agency paid Alternative for 20 units of service for companion services provided to Recipient 18 on January 7, 2008. The recipient’s support plan for companion services focuses on going out into the community to eat, visit parks, go to places of interest, and attend parties. Alternative’s documentation for the services describes the activities from 1:30 p.m. to 4:30 p.m., as “[p]repare lunch, ate 100%, change underwear, small walk, watch some TV by request, lie for a rest on sofa.” Lunch preparation and changing clothes are not companion services. They are personal care assistance services. The Agency reasonably deducted two units of service for these claims. Also on January 7, 2008, a different provider of companion services describes the activities from 4:30 p.m. to 6:30 p.m., as “watched t.v. [and] chilled out today.” These activities are not activities related to the companion services of the support plan. There is no documentation supporting the claim for payment for the time between 4:30 p.m. and 6:30 p.m. The Agency reasonably denied payment for two units of service for this time period. The Agency paid Alternative for 20 units of service for companion services provided to Recipient 18 on March 1, 2009. The documentation for those services states only: “We stayed in due to weather.” It provides no information about the weather, what activities the recipient engaged in while “in,” or why the weather precluded all community activities. The documentation does not support the claim for billing 20 units of service. Unauthorized Activities The Agency paid Alternative for 12 units of service for in-home support services provided to Recipient 15 on February 21, 2008. The recipient’s support plan described his goals to be advanced by in-home support services as “learn how to better take care of his apartment, cook for himself, clean his apartment, do his laundry, and learn to make independent life decision[s].” Alternative’s documentation describes the day’s activities as “[Recipient] and I went to the library. Then watch [sic] a little TV. I left early because he said he was tired.” Watching television is not an activity within the authorized in-home support services. It is reasonable to reduce the claimed units of service by one to adjust for the time spent providing an unauthorized service. The Agency paid Alternative for 20 units of service for in-home support services provided to Recipient 15 on April 2, 2008. Alternative’s documentation from the caregiver describing the services states: “[Recipient] and I went to the store to pick up several items. Then came back to his place and played dominos.” The weight of the persuasive evidence establishes that there is no connection between playing dominos and the services for which in-home support was authorized. Deducting one unit of service from the services paid for to account for time spent playing dominos is reasonable. The Agency paid Alternative for 20 units of service for in-home support services provided to Recipient 15 on June 25, 2009. The caregiver provided multiple services that day. The documented activities included watching two movies, Bolt and the Spiderwick Chronicles. The weight of the persuasive evidence establishes that there is no connection between watching the movies and the services for which in-home support was authorized. Deducting the claimed units of service to Recipient 15 by one, as the Agency recommends, is a reasonable accounting for the time spent watching the movies. On February 20, 2008, Alternative billed for 32 units of service for companion services for Recipient 26. The support plan for Recipient 26 identifies Alternative as providing the companion services for his goal to “want to do some volunteer work and learn how to socialize with others [sic] people that will not take advantage of me.” Alternative’s documentation for the companion services on February 26, 2008, includes “doing laundry at home and babysitting nephew.” These activities are not within the scope of the support plan for companion services or directed to a related goal. Deducting a unit of service for Recipient 26 on February 20, 2008, by one to account for the laundry and babysitting is reasonable. On January 22, 2008, Alternative billed for 24 units of service for companion services for Recipient 33. The recipient’s support plan lists the following goals that require companion services: “work on building practical skills, making choices, and verbally communicating opinions, wants and needs to others. I want to continue learning to be safe within [t]his community.” Alternative’s documentation to support payment describes the day’s activities as “[t]ook [Recipient] to the Library, [illegible] Target, Dollar, [illegible], watched a movie at his house.” Watching television at the recipient’s house does not fall within the scope of the Recipient’s companion services. Deducting a unit of service for that day by one to account for the time spent watching a movie is reasonable. Overlapping and Unsupported Claims The Agency paid Alternative for respite care to Recipient 16 from noon to 6:00 p.m., 34 units of service, on March 3, 2009. The narrative by Van Greenlaw for the respite care log entry on March 3, 2009, reports: “I arrived today got lunch ready, he went to the gym, came back, plays some of his games, after that he got ready to go to church with [illegible], day ends.” The work hours are changed by strike-throughs to 1:30 p.m. to 6:00 p.m. on another copy of the log. The log does not show the date of the change or who made the change. The personal care assistance service log for March 3 shows Mr. Greenlaw as working from noon to 6:00 p.m. Another copy of the personal care assistance log shows a struck-through revision indicating that personal care services were provided between noon and 1:30 p.m. The log does not show the date of the change or indicate who made the change. The revised service logs and the invoice for the week’s services by Mr. Greenlaw do not reconcile. The invoice shows a total of 2.5 hours (10 units of service) of companion services from 12:30 p.m. to 2:30 p.m. and 4.5 hours (18 units of service) respite care from 2:30 p.m. to 6:00 p.m. (Pet. Ex. 8, p. 752). There are no logs documenting provision of companion care services. Alternative billed for 18 units of respite service for March 3, 2009, and six units of service for companion services, not the personal care assistance services identified in the log. (Koelle, Tr. at 148-149, Pet. Ex. 752). In addition to the reconciliation inconsistency, the invoice has a math error. The actual amount of time between 2:30 p.m. and 6:00 p.m. is only 3.5 hours (14 units of service) for respite care, not the invoiced 4.5 hours. Alternative concedes one hour of overbilling. It offers no explanation for billing for companion services when the only record of services is for personal care and respite care. The documentation only supports billing for 14 units of respite care service on March 3, 2009, for Recipient 16. Therefore, the billable units of service for Recipient 16 on March 3, 2009, should be reduced by 20, from 34 to 14, when applying the Agency’s extrapolation formula. Training of Ora Richmond Alternative hired Ora (Paul) Richmond as a caregiver on February 7, 2009. The first date that there is a record of him providing recipient services is March 2, 2009. Mr. Richmond received his zero tolerance training on March 10, 2009. He received his “Core Competency” training on January 10, 2010. The Agency maintains that Mr. Richmond did not have the training required by the applicable DD Handbook when he provided services on March 2, 2009, and that the 16 units of service for that day should be disallowed. The Agency refers to the December 3, 2008, DD Handbook. The handbook took effect on December 3, 2008. The provision, section 2.1(H), imposing the new zero tolerance training requirement, provided: “All direct service providers hired after 90 days from the effective date of this rule are required to complete the Agency for Persons with Disabilities developed Zero Tolerance Training course prior to rendering direct care services (as a pre-service training activity).” Mr. Richmond was hired less than 90 days from the effective date of the requirement. Section 2.1(G) of the provision requiring “Core Competency” training stated: “All direct service providers are required to complete training in the APD’s Direct Care Core Competencies Training, or an equivalent curriculum approved by APD within 90 days of employment or enrollment to provide the service.” The 90th day after Mr. Richmond’s employment was May 8, 2009. Therefore, he was not in violation of the core competency requirement when he provided services to Recipient 11 on March 2, 2009. However, as determined in Findings of Fact 50 through 52, he did not have the experience required to serve as a caregiver.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency for Health Care Administration recalculate the amounts to be recouped applying the Procedure Codes, units of service, and amount per unit of service, as shown in the Appendix, with the following adjustments: The Agency will not include in recoupment calculations, for the reason that Alternative provided the services to residents of a licensed residential facility, any payments made for companion services provided to Recipients 7, 13, 14, and 25. The Agency will include in recoupment calculations the amounts and units of service paid to Alternative for Mr. Alvarez’s companion and personal care assistance services to Recipient 3 and his in-home support services to Recipient 15, as shown in the Appendix. The Agency will include in recoupment calculations the amounts and units of service paid to Alternative for Mr. Richmond’s services to Recipients 11, as shown in the Appendix. The Agency will include in recoupment calculations the amounts and units of service paid to Alternative for Mr. Rose’s companion services to Recipients 13 and 14, as shown in the Appendix. The Agency will include in recoupment calculations the amounts and units of service paid to Alternative for the 16 units of service shown in the Appendix, as provided to Recipient 6 on March 27, 2008. The Agency will include in recoupment calculations the amounts and units of service paid to Alternative for 14 units of companion service provided to Recipient 12 on April 16, 2008, as shown in the Appendix. The Agency will include in recoupment calculations the amounts and units of service paid to Alternative for 14 units of companion service provided to Recipient 12 on April 30, 2008, as shown in the Appendix. The Agency will include in recoupment calculations the amounts and units of service paid to Alternative for four units of service on January 7, 2008, to Recipient 18. The Agency will include in recoupment calculations the amounts and units of service paid to Alternative for 20 units of service on March 1, 2009, to Recipient 18, as shown in the Appendix. The Agency will include in the recoupment calculations the amounts and units of service paid to Alternative for one unit of in-home support service provided on February 21, 2008, to Recipient 15. The Agency will include in the recoupment calculations the amounts and units of service paid to Alternative for one unit of in-home support service provided on April 2, 2008, to Recipient 15. The Agency will include in the recoupment calculations the amounts and units of service paid to Alternative for one unit of service of in-home support services provided on June 25, 2009, to Recipient 15. (This should not be cumulative to the inclusion in the calculation of all 20 units of service that day due to an ineligible staff providing the services.) The Agency will include in the recoupment calculations the amounts and units of service paid to Alternative for one unit of companion service provided on February 20, 2008, to Recipient 26. The Agency will include in the recoupment calculations the amounts and units of service paid to Alternative for one unit of companion service provided on January 22, 2008, to Recipient 33. The Agency will include in the recoupment calculations the amounts and units of service paid to Alternative for 20 hours of service provided on March 3, 2009, for Recipient 16. The Agency will not impose a sanction upon Alternative. Jurisdiction is reserved to determine costs and interests, if the parties are not able to agree upon them and to consider a challenge, if any, to the extrapolation based upon the findings and conclusions of this Recommended Order. DONE AND ENTERED this 28th day of July, 2014, in Tallahassee, Leon County, Florida. S JOHN D. C. NEWTON, II 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 28th day of July, 2014.
The Issue The issue in this case is whether proposed rules 65G-4.0210 through 65G-4.027 (the “Proposed Rules”) are an invalid exercise of delegated legislative authority as defined in section 120.52(8), Florida Statutes. (Unless specifically stated otherwise herein, all references to Florida Statutes shall be to the 2012 codification.) Specifically, Petitioners assert that the Proposed Rules (1) enlarge, modify, and contravene the specific provisions of the law they purport to implement; (2) contain vague and inadequate standards that vest unbridled discretion in the Agency for Persons with Disabilities (the “Agency” or “APD”); (3) are arbitrary and capricious; and (4) exceed the grant of rulemaking authority in section 393.0662(9), Florida Statutes. Petitioners further argue that, (5) APD failed to follow applicable rulemaking procedures required by sections 120.54(3) and 120.541, Florida Statutes, because APD failed to provide a Statement of Estimated Regulatory Costs (“SERC”) as a part of the rulemaking process.
Findings Of Fact Each of the Petitioners is a recipient of services under the DD Waiver Program. For example, Petitioner Z.L. is a 26- year-old male who was born with Cri-du-Chat syndrome, a fifth chromosome abnormality. As a result, Z.L. is low-functioning, with a non-measurable IQ level (but likely well below the level designating mental retardation). Z.L. speaks only a few words and communicates with some sign language. He is ambulatory, but he is totally dependent on others for all activities of daily living. Z.L. also has some extreme behavioral issues, including self-abuse and physical abuse of others. He lives in a private residence with two other developmentally disabled men. The home where they reside belongs to the family of K.L. (Z.L.’s father and legal guardian). K.L. rents the home for Z.L. and the other two men at less than its actual market value. (The home is a 1,500 square foot home located on 15 acres. K.L. pays about $600 per month rent; the home could rent for two or three times that much.) Z.L. receives the following services under the DD Waiver Program: 24-hour assistance with activities of daily living; behavioral analysis through a certified behavior analyst; and personal care assistance. The cost of his care plan for the previous year was $61,824.22 (i.e., that was the amount paid by the DD Waiver Program). Z.L.’s father and mother are unable to care for Z.L. in their home. The father is CEO of a bank and is involved in other businesses as well. The mother recently suffered closed head injuries as a result of a bicycle accident. She must be cautious about any further head injuries and fears that Z.L.’s aggression could result in physical harm to her. As a result of the implementation of the iBudget process, APD is proposing to reduce Z.L.’s care plan by the sum of $8,175.98. Under the iBudget process, Z.L. has the right to challenge the reduction of his care plan amount in a Fair Hearing before a Department of Children and Families Hearing Officer, which he has done. K.L. has expended about $6,000 in legal fees to contest the reduction of Z.L.’s care plan amount under the new iBudget system. He expects that if the matter goes to appeal, he will expend as much as $70,000 more in legal fees. K.L. has also hired a lawyer for one of Z.L.’s roommates.1/ APD is the state agency responsible for distributing funds from the DD Waiver Program. Prior to implementation of the iBudget process, APD used a four-tier system to provide the level of funds each client would receive.2/ The tier system was more rigid in its application than the iBudget system. Under the tier system, there were strict funding policies in place. For example, if dollars were allocated toward a specific service, e.g., transportation, those dollars could not be used for any other service, such as companion care or personal care. As will be discussed more fully below, the funds provided in the iBudget process are more flexible regarding services they can purchase. The DD Waiver funds administered by the Agency are the funds of last resort. If a service received by a client can be paid for by another agency or source of payment, those must be utilized before the Agency can allocate funds for the service. Development of the iBudget System The 2010 Florida Legislature mandated creation of an iBudget process for distributing funds from the DD Waiver Program. Section 393.0662(1) states in pertinent part: The agency shall establish an individual budget, referred to as an iBudget, for each individual served by the home and community- based services Medicaid waiver program. The funds appropriated to the agency shall be allocated through the iBudget system to eligible, Medicaid-enrolled clients . . . . In developing each client’s iBudget, the agency shall use an allocation algorithm and methodology. The algorithm shall use variables that have been determined by the agency to have a statistically validated relationship to the client’s level of need for services provided through the home and community-based services Medicaid waiver program . . . . The allocation methodology shall provide the algorithm that determines the amount of funds allocated to a client’s iBudget. The agency may approve an increase in the amount of funds allocated, as determined by the algorithm, based on the client having one or more of the following needs that cannot be accommodated within the funding as determined by the algorithm and having no other resources, supports, or services available to meet the need: An extraordinary need that would place the health and safety of the client . . . in immediate, serious jeopardy . . . . A significant need for one-time or temporary support or services . . . . A significant increase in the need for services after the beginning of the service plan year . . . . The agency shall reserve portions of the appropriation for the home and community- based services Medicaid waiver program for adjustments required pursuant to this paragraph . . . . A client’s iBudget shall be the total of the amount determined by the algorithm and any additional funding provided pursuant to paragraph (b). A client’s annual expenditures for home and community-based services Medicaid waiver services may not exceed the limits of his or her iBudget. The total of all clients’ projected annual iBudget expenditures may not exceed the agency appropriation for waiver services. In response to the statutory mandate, the Agency sought input from “stakeholders,” i.e., individuals and families receiving services, family care counsel groups, various provider groups, and organizations such as the Association of Retarded Citizens and the like. APD also looked at how other states had addressed the issue of fund distribution to developmentally disabled individuals. The Agency hired consultants to help make the process as equitable and fair as possible within the limits of its finite budget. One of the Agency’s hired consultants was Dr. Xufeng Niu, chair of the statistics department at Florida State University. Dr. Niu is a recognized expert in the field of statistics and had used his expertise in many areas, including transportation issues such as railroad crossing safety and environmental issues for the Department of Environmental Protection. Dr. Niu has been an academician and consultant since obtaining his Ph.D. in statistics from the University of Chicago in 1991. Dr. Niu’s testimony was extremely credible. APD hired Dr. Niu to develop an algorithm which would be the key feature to any individual budget calculation. APD’s goal in developing the algorithm was to create a formula fitting data patterns of past expenditures, then to mathematically replicate decisions that were made to establish a client’s prior budget amount. Dr. Niu, by way of statistical modeling techniques, developed certain factors which could be utilized by the Agency in determining which clients would receive funds for specific services. Using a catalogue of predictors or variables derived from information provided to him by the Agency, Dr. Niu built a tool to predict what each client’s cost for needed services would be. A Bell Curve was used to keep the application of the variables more symmetrical. In order to effectuate this desire, Dr. Niu utilized a form of “transformation” referred to as the Box-Cox Transformation Family. The Box-Cox Method involved raising data to a different mathematical power as a means of analyzing and applying the data. Dr. Jim McClave, who operates a statistical consulting firm, is an expert statistician and econometrician. His work involves regular stints as an expert in legal proceedings such as this rule challenge matter. His testimony was credible, but less persuasive than that of Dr. Niu.3/ Dr. McClave would have used a log transformation method rather than the Box-Cox method relied upon by Dr. Niu. However, while not discounting the log transformation method, Dr. Niu competently testified that the Box-Cox worked best in this particular case. After the transformation process, it was necessary to narrow down the number of variables to be used. Dr. Niu ultimately decided to use nine specific variables, including: the client’s living setting; whether the client is an adult; the client’s score on the six elements set forth in the Questionnaire for Situational Information (“QSI”) which was provided to all potential recipients of services; the client’s score on the 11 elements in the functional summary section of the QSI; and the client’s score on each of three specific elements in the QSI related to transfers (ability to transfer or change position), hygiene, and capacity for self-protection. Not all variables are necessarily useful and having too many variables causes over- fitting, i.e., trying to fit every situation into a perfect model, which simply is not possible. In fact, it is better to have fewer variables as long as sufficient data can be captured. A statistician must reach a balance on the number of variables in order to find the best model for each project. Dr. Niu’s affirmation of the variables he used is credible. Dr. Niu utilized the Generalized Information Criterion (“GIC”), a method of finding the best set of predictors when creating an algorithm. GIC is a criterion that tries to balance the model by carefully adding more variables without overpopulating the model with too many variables. GIC was used by Dr. Niu in conjunction with the concept of R-squared. That concept is a statistical measure of how well an algorithm fits the data in order to test how well the model predicts. The algorithm developed for use in the Proposed Rules has an R- squared value of .6757, meaning that it accounts for about 68 percent of the variation in the population of APD clients’ DD Waiver expenditures. By contrast to the GIC and R-squared approach, there is in the field of statistics a tool referred to as Residual Standard Error. This tool helps determine whether a model is predicting within two standard deviations and thus has a measure of certainty. The algorithm proposed by APD did not utilize the Residual Standard Error tool, relying instead on the combination of GIC and R-squared. Based upon Dr. Niu’s testimony, APD’s reliance on those tools is reasonable. Dr. Niu developed a number of models for possible use in the iBudget process, settling at last on Model 7b. The model was then applied to the pool of clients who would be affected by the new iBudget system. The client pool contained a large number of different situations and scenarios, as each client and client family is unique despite some similar developmental issues. As a result of these differences, there were cases in which a particular client -- because of his or her needs, or those of his or her family -- did not fit the model. These cases were called “outliers” and had to be treated differently by the Agency. Of the total group of some 26,000 clients, 9.37 percent, or about 2,400 clients, were deemed outliers. Dr. McClave criticized this percentage of outliers, but Dr. Niu's substantiation of the percentage is credible. Dr. Niu utilized actual expenditures by APD for DD Waiver Program clients during the 2007-2008 fiscal year as an indicator of what APD had faced in the past. Those data were recent enough in time to be linked to current assessment data for the clients and to be assigned scores from the QSI. APD also found that the 2007-2008 data more accurately reflected service needs compared to other recent years because the data pre-dated the implementation of the more restrictive Tier system. Dr. Niu did not use clients with less than one year of claims because they may not project the client’s actual annual expenditures. Dental services, environmental services, and durable medical equipment purchases were excluded because they are generally a once-a-year purchase. Four of Florida's 67 counties were excluded from the calculations because they had a much higher cost of living than the rest of the state. Mismatches and clerical errors in clients’ records were also taken into consideration. Age was used as a predictor, but after trial and error Dr. Niu decided upon a single division, i.e., persons under 21 years of age versus persons 21 or older. The rationale was that people under 21 receive services from other sources, like the public school system, for example. Persons over 21 begin to require more services as they age. Dr. Niu considered more factors than just the mathematical statistical accuracy. His extensive work resulted in the best model out of many possibilities. Transportation needs and costs were considered during the stakeholder meetings as a factor to be considered when discussing possible variables. Dr. Niu attempted to use a transportation index in his models, but that resulted in a negative coefficient which is less valid statistically. Applying the current year’s transportation costs did not work. It was also impossible to apply a portion of a year’s transportation costs as an indicator of the entire year’s transportation costs. And, because transportation costs constitute only about 1.5 percent of overall expenses, it was reasonably determined that such costs could be handled by way of an extra needs review. Upon completion of the iBudget system, it was implemented and introduced to all eligible DD Waiver clients. The program was introduced in “waves,” i.e., not all DD waiver clients being served by APD received their iBudgets at one time. Rather, the new system was phased in over time. How the iBudget System Is Employed APD sends an information packet to each client, i.e., each person seeking services to be paid for under the DD Waiver Program. This information packet, called a Welcome Guide, is meant to help the client understand the new system. The Welcome Guide provides a large amount of information, plus education and training possibilities as well. It is understandably difficult to absorb all of the information contained in the packet, but APD opted for completeness rather than over-simplifying the information. Z.L.’s father, who is a licensed attorney and CEO of a bank, expressed difficulty understanding the information contained in the Welcome Guide. However, he testified that he has "some kind of memory block" about DD Waiver services. It is understandable that this would be a difficult thing for a parent to review. The first step of the process for requesting funds for services under the iBudget system is to have the client complete a QSI form. After the QSI assessment is done, the second step of the process is for the Agency to run its algorithm using the previously discussed variables such as age, living arrangement, behavioral status, functional status, and the responses to various personal questions concerning the client. Running the algorithm then creates a dollar value for the services deemed appropriate for the client. The cost of the services is then related back to the appropriation of funds received by APD from the Legislature for providing all needed services. Each client’s sum for needed services is then given a pro rata reduction (or, theoretically, an increase) based on the total funds available to APD. There are then adjustments which can be made to the algorithm amount. For example, if the algorithm amount for a client was greater than the amount set forth in the client’s existing care plan, that client’s “algorithm amount” was reduced to the existing care plan amount, at least temporarily pending further possible actions under the iBudget process. There are specific services identified in the Proposed Rule (at 65G-4.0212(b)(2)), which are indicative of certain health and safety needs. If a client needs any of those services and the cost of those services is greater than the algorithm amount, the greater sum will be substituted. If the algorithm amount was less than the client’s care plan amount but within $1,000 of the existing care plan amount, then the care plan amount was used as the “algorithm amount.” This $1,000 buffer will necessarily mean that a client whose care plan amount is $999 more than the algorithm amount may be treated differently from a person whose care plan amount is $1,001 more than the algorithm amount. Still, the decision to employ a $1,000 threshold is generally reasonable as APD attempts to maintain a sufficient care plan allocation despite the change in systems. APD reasonably believes it would be more time-consuming and costly to deal with changes of $1,000 or less than to simply accept the prior care plan amount (which was based upon the client's needs). If the algorithm amount is less than the amount in the client’s existing care plan, then APD determines whether the reduction is greater than 50 percent of the existing care plan amount. If so, the algorithm amount is raised to an amount equal to at least 50 percent of the existing care plan amount. After application of the above-reference factors and -- if warranted -- adjustments are made, the client is provided an amount which is referred to as the “Target Allocation.” The fourth step in the process is for APD to provide the Target Allocation amount to the client and WSC. Step five of the process is a review to determine whether, notwithstanding the algorithm amount, a client has extra needs that warrant an increase in their ultimate allocation of funds for services. This is called the Extraordinary Needs Review. The first phase of this step is an allocation implementation meeting (AIM), wherein the client is advised about the changes --if any -- to his/her care plan. The client and his or her waiver support coordinator (WSC) are given information about how the reductions may be handled, e.g., that under the iBudget it might be possible to utilize funds to pay for one service even if they are allocated for another service. Or, there may be ways under the iBudget system to merge two or more services into one. One example of that is that in-home personal service caregivers may be allowed to perform other tasks, e.g., they may be able to provide services outside the home setting. After almost a full year of implementing the iBudget system, this portability of funds from one service to another has proven to be one of the most appreciated functions of the new process by waiver support coordinators. If the client and WSC agree that the service needs can be met by the Target Allocation, that amount becomes the client’s iBudget Allocation amount. If the client and WSC do not think the Target Allocation amount is sufficient to meet the service needs, the AIM form is completed and sent to APD for further review. If the health and safety of the client, client’s caregiver, or the public is placed in immediate jeopardy without an increase in the allocation, then an increase will be approved. APD then gives the client notice as to its decision and the final iBudget Allocation is provided. This constitutes step six of the process. Subsequent to setting and providing notice of the final iBudget Allocation, a client may seek supplemental funding for significant one-time or temporary needs. If a significant increase in need for services arises after the beginning of a plan year, a process exists for further consideration of the client’s needs. For new clients, i.e., those who do not have an existing care plan when the iBudget is applied to them, the process is slightly different. First there is an eligibility determination (which has already occurred for existing clients). The client then responds to the QSI. The algorithm is calculated to form the target allocation for the new client. An extra needs review is then performed to make sure that all health and safety needs are being met. It is possible that a new client with exactly the same condition, circumstances, and needs as an existing client (albeit an extremely unlikely occurrence), could receive a larger amount under the iBudget than the existing client. If both clients were assigned exactly the same score under the algorithm, but the existing client’s allocation amount were larger than the care plan amount under the Tier system, then the existing client’s allocation would be reduced. There would not be a concomitant reduction of the new client’s allocation. Although Petitioners pointed out this alleged flaw, no remedy was suggested that would make it possible for APD to make the treatment of two similarly situated clients more equal. The iBudget system is not flawless, but it is an admirable effort toward equality of application to all “clients.” The Agency did not set aside or reserve any portion of their allocation from the Legislature as a Reserve Fund, per se. Rather, APD uses the reserve fund concept as a management tool to be used when making adjustments to an individual client’s final allocation of funds. Thus, during the AIM process or the Supplemental Cost Funding phase, APD might raise a client’s allocation based on funds it has “reserved” under the algorithm calculation. Statement of Estimated Regulatory Costs APD published the initial proposed rule on August 3, 2012. The publication included a statement that the Agency had determined there would not be an adverse impact on small business nor would it increase regulatory costs in excess of $200,000 within one year. Petitioners’ contention that clients may have difficulty understanding the welcome packet information and may challenge iBudget Allocations by way of fair hearings does not establish the necessity for SERC.
Conclusions THE PARTIES resolved all disputed issues and executed a settlement agreement. which is attached and incorporated by reference. The parties are directed to comply with the terms of the attached settlement agreement. Based on the foregoing. this file is hereby CLOSED. DONE AND ORDERED on this AS day of fick . 2014, in Tallahassee, Florida. lh. fall lizabeth Dudek, Gecretary, Agency for Health Care Administration Agency for Health Care Administration v. 2065, Inc, d/b/a Fort Lauderdale Retirement Home Final Order Page 1 of 3 Filed March 27, 2014 4:49 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: Jason Klein, Esq. Bales Sommers & Klein, P.A. 2 South Biscayne Blvd. Suite 1881 Miami, Florida 33131 Telephone: (305) 372-1200 Facsimile: (305) 372-9008 Email: jklein@bsklawyers.com (Via Electronic Mail) Tracie L. Hardin, Esquire Agency for Health Care Administration 2727 Mahan Drive Building 3, Mail Station 3 Tallahassee, Florida 32308 (Via Electronic Mail) Agency for Health Care Administration Bureau of Financial Services 2727 Mahan Drive Building 2. Mail Station 14 Tallahassee, Florida 32308 (Via Electronic Mail) Richard Zenuch, Chief Medicaid Program Integrity 2727 Mahan Drive Building 2, Mail Station 6 Tallahassee, Florida 32308 (Via Electronic Mail) Division of Administrative Hearings The Desoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (Via Electronic Mail) Bureau of Health Quality Assurance 2727 Mahan Drive, Mail Stop 9 Tallahassee, Florida 32308 (Via Electronic Mail) Agency for Health Care Administration v. 2065, Inc. d/b/a Fort Lauderdale Retirement Home CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished to the above named addressees by Electronic Mail, or the method designated, on this the ao day of Lec 2014, Agency Clerk State of Florida Agency for Health Care Administration 2727 Mahan Drive, Building #3 Tallahassee, Florida 32308-5403 (850) 412-3630 Agency for Health Care Administration v. 2065, Inc. d/b/a Fort Lauderdale Retirement Home Final Order Page 3 of 3 STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS STATE OF FLORIDA, AGENCY FOR HEALTH CARE ADMINISTRATION, Petitioner, DOAH Case No.: 12-1252MPI ys. Provider No.: 140290100 C.L. No.: 12-1546-000 2065, INC. d/b/a FORT LAUDERDALE RETIREMENT HOME, Respondent. f SETTLEMENT AGREEMENT Petitioner, the STATE OF FLORIDA, AGENCY FOR HEALTH CARE ADMINISTRATION, (“AHCA” or “Agency”), and Respondent, 2065, INC. d/b/a FT. LAUDERDALE RETIREMENT HOME, (“PROVIDER”), by and through the undersigned, hereby stipulate and agree as follows: 1. The parties enter into this agreement for the purpose of memorializing the resolution to this matter. 2. PROVIDER is a Medicaid provider in the State of Florida, provider number — 140290100, and was a provider during the audit period. 3. In its Sanction Letter, dated Febmary 6, 2012, the Agency notified PROVIDER that it was being assessed fines in the amount of thirteen thousand dollars ($13,000.00), pursuant to Florida Administrative Cade Rule 59G-9.070(7)(e), for violations of Medicaid policies. 4. In response to the Sanction Letter, PROVIDER filed a Request for Formal Administrative Hearing. AHA v. 2065, Inc. d/p a Ft. Lauderdaie Retirement Home - Settlement Agreement CL No.: 12-1546-000; Case No.: 12-1252MPI Page 1 of 5 5. In order to resolve this matter without further administrative proceedings, PROVIDER and AHCA expressly agree as follows: 7. (1) (2) (3) 4) AHCA agrees to accept the payment set forth herein in settlement of the sanctions assessed by the Bureau of Medicaid Program Integrity. Within thirty (30) days of the date of execution of a Final Order adopting this Settlement Agreement, PROVIDER agrees to make a payment of the following: a fine in the amount of three thousand dollars ($3,000.00). PROVIDER and AHCA agree that such payments as set forth above will resolve and settle this case completely and release both parties from all liabilities arising from the findings in the audit referenced as C.I. Number 12-1546-000. PROVIDER agrees that it is required to comply with all requirements of the applicable Medicaid Handbooks, to include properly recording and maintaining service plans, health assessments, and medical observation records. Payment shall be made to: AGENCY FOR HEALTH CARE ADMINISTRATION Medicaid Accounts Receivable 2727 Mahan Drive MLS. #14 Tallahassee, Florida 32317-3749 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. AHCA v. 2065, Inc. d/b aFt. Lauderdale Retirement Home - Settlement Agreement CL. No.: 12-1546-000; Case No.: 12-1252MPI Page 2 of 5 (¥ 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. 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. 11. 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. 12. 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 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. 13. 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. 14. | 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 tules of the Agency regarding this proceeding and any and all issues raised herein. ARCA v. 2065, Inc. d/b a Ft. Lauderdale Retirement Home - Settlement Agreement C.I. No.: 12-1546-000; Case No.: 12-1252MPI Page 3 of 5 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. 15. | PROVIDER does hereby discharge the State of Florida, Agency for Health Care Administration, and its agents, representatives, and attorneys of and from all claims, demands, actions, causes of action, suits, damages, losses and expenses, of any and every nature whatsoever, arising out of or in any way related to this matter, AHCA’s actions herein, including, but not limited to, any claims that were or may be asserted in any federal or state court or administrative forum, including any claims arising out of this agreement. 16. The parties agree to bear their own attorney’s fees and costs, if any. 17. 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. 18. 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, 19. | This Agreement shall inure to the benefit of and be binding on each party’s successors, assigns, heirs, administrators, representatives and trustees. 20. All times stated herein are of the essence of this Agreement. 21. This Agreement shall be in full force and effect upon execution by the respective parties in counterpart. THE REMAINDER OF THIS PAGE IS INTENTIONALLY BLANK AHCA v. 2065, Inc. d/b a Ft. Lauderdale Retirement Home - Settlement Agreement Page 4 of 5 C.L. No.: 12-1546-000; Case No.: 12-1252MPI Z l ) 2065. INC. d/b/a FT. LAYDERDALE RETIREMENT HOME md LAS Dated: 02/0 # 2013 BY Dac eveui ne H. Henny 2o-Bad (Print name) AGENCY FOR HEALTH CARE ADMINISTRATION 2727 Mahan Drive, Bldg. 3, Mail Stop #3 Tallahassee, FL 32308-5403 A Inspector General a pace 3/22 ye? © General Counsel Kr Kell Dated: 5 30 oy im Kellum Chief Medicaid Counsel . - Dated: —Reehie—A-Wilson ~ Trav leaden Te? Assistant General Counsel Her don i fas AHCA v. 2065, Inc. d/b a Ft. Lauderdale Retirement Home - Settlement Agreement CL. No.: 12-1546-000; Case No.: 12-1252MPI Page 5 of 5 (Page 1 of 4) FLORIDA AGENCY FOR HEALTH CARE ADMINSTRATION. Sovenot Better Health Care for ail Floridians ELIZABETH DUD EK RICK SUUT I , ELIZABETH DUDEK GOVERNOR Better Health Care for ail Floridians SECRETARY CERTIFIED MAIL NO.:7004 2510 0005 6456 0072 February 6, 2012 C.L No: 121546000 Provider No: 140290100 Provider License No: AL6634 2065, Inc. 401 SE 12" Court Ft. Lauderdale, Florida 33316 In Reply Refer to: Sanction Dear Provider: In accordance with Section 409.913, Florida Statutes (F.S.), and Rule 59G-9.070, Florida Administrative Code (F.A.C.), the Agency for Health Care Administration (Agency), shall apply sanctions for violations of federal and state laws, including the following violations of Medicaid policy: © Seven (7) of eight (8) recipient records reviewed did not contain Service Plans (G.L: H.Z.5M.R.Z.; T.W.; C.W.; S.A.C.; P.A.A,) in the files. © One (1) of eight (8) recipient records reviewed did not contain a current Health Assessment and Service Plan in the file (M.H.). * A look at the Medication Observation Records (MORs) revealed five (5) residents sheet were pre-annotated and/or not annotated at all albeit medication already administered (MLR, 8.Q.; WAR: DLA: P.T)). This letter shall serve as notice of the following sanction(s): * A fine of $13,000.00 for violation(s) of 7(e) under Rule Section 59G-9.070, F.A.C. Furthermore, this letter serves as notice that the agency, upon entry of a final agency order, a judgment or order of a court of competent jurisdiction, or a stipulation or settlement, may collect the moneys owed by ali means allowable by law, including, but not limited to, notifying any fiscal intermediary of Medicare benefits that the state has a superior right of payment. Upon receipt of such written notification, the Medicare fiscal intermediary shall remit to the state the sum claimed. This is in accordance with Section 409.913, (25)(d) F.S. Visit AHCA online at http://ahca.myflorida.com 2727 Mahan Drive, MS# 6 Tallahassee, Florida 32308 (Page 2 of 4) 2065, Ine. PN 140290100 File # 80333 Page 2 of 4 (Ex.1) Please remit a certified check in the amount of $1 3,000.00. The check must be payable to the Florida Agency for Health Care Administration. Questions regarding procedures for submitting payment should be directed to Medicaid Accounts Receivable, (850) 412-3858. To ensure proper credit, be certain your provider number and the investigation case number (121546000) are shown on your check. Please mail payment to: Medicaid Accounts Receivable - MS # 14 Agency for Health Care Administration 2727 Mahan Drive Bldg. 2, Ste. 200 Tallahassee, FL 32308 If payment is not received, or arranged for, within 30 days of receipt of this letter, the Agency may withhold Medicaid payments or impose additional sanctions, which include, but are not limited to, fines, suspension and termination from the Medicaid Program. You have the right to request a formal or informal hearing pursuant to Section 120.569, F.S. Ifa request for a formal hearing is made, the petition must be made in compliance with Section 28- 106.201, F.A.C. and mediation may be available. If a request for an informal hearing is made, the petition must be made in compliance with rule Section 28-106.301, F.A.C. Additionally, you are hereby informed that if a request for a hearing is made, the petition must be received by the Agency within twenty-one (21) days of receipt of this letter. For more information regarding your hearing and mediation rights, please see the attached Notice of Administrative Hearing and Mediation Rights. Any questions you may have about this matter should be directed to: Maritza Perpina, Inspector Specialist, Agency for Health Care Administration, Medicaid Program Integrity, PO Box 52-2804, Miami, Florida 33152-2804, telephone (305) 718-5900, facsimile (305) 718- 5944, Sincerely, fee: Dozier Field Office Manager Office of Inspector General Medicaid Program Integrity Enclosures ce: = AHCA Bureau of Finance and Accounting Aita; Katrina Derico-Harris Health Quality Assurance (HQA) (Page 3 of 4) 2065, Inc. PN 140290100 File # 80333 Page 3 of 4 NOTICE OF ADMINISTRATIVE HEARING AND MEDIATION RIGHTS You have the right to request an administrative hearing | pursuant to Sections 120, 569 and 120. 57, wate Mtaet alae You have the right to request an ‘administrative hearing pursuant to Sections 130. 369 and 730. 37, Florida Statutes. If you disagree with the facts stated in the foregoing Final Audit Report (hereinafter FAR), you may request a formal administrative hearing pursuant to Section 120.57(1), Florida Statutes. If you do not dispute the facts stated in the FAR, but believe there are additional reasons to grant the relicf you seek, you may request an informal administrative hearing pursuant to Section 120.57(2), Florida Statutes. Additionally, pursuant to Section 120.573, Florida Statutes, mediation may be available if you have chosen a formal administrative hearing, as discussed more fully below. The written request for an administrative hearing must conform to the requirements of either Rule 28-106.201(2) or Rule 28-106,301(2), Florida Administrative Code, and must be received by the Agency for Health Care Administration, by 5:00 P.M. no later than 2] days after you received the FAR, The address for filing the written request for an administrative hearing is: Richard J. Shoop, Esquire Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Mail Stop #3 Tallahassee, Florida 32308 Fax: (850) 921-0158 The request must be legible, on 8 % by 11-inch white paper, and contain: 1. Your name, address, telephone number, any Agency identifying number on the FAR, if known, and name, address, and telephone number of your representative, if any; An explanation of how your substantial interests will be affected by the action described in the FAR; 3, A statement of when and how you received the FAR; 4. For a request for formal hearing, a statement of all disputed issues of material fact; 5. For a request for formal hearing, a concise statement of the ultimate facts alleged, as well as the tules and statutes which entitle you to relief; 6. For a request for formal hearing, whether you request mediation, if it is available, 7. For a request for informal hearing, what bases support an adjustment to the amount owed to the Agency; and 8. A demand for relief. N A formal hearing will be held if there are disputed issues of material fact. Additionally, mediation may be available in conjunction with a formal hearing, Mediation is a way to use a neutral third party to assist the parties in a legal or administrative proceeding to reach a settlement of their case. If you and the Agency agree to mediation, it does not mean that you give up the right to a hearing. Rather, you and the Agency will try to settle your case first with mediation. If you request mediation, and the Agency agrees to it, you will be contacted by the Agency to set up 2 time for the mediation and to enter into a mediation agreement. If a mediation agreement is not reached within 10 days following the request for mediation, the matter will proceed without mediation. The mediation must be concluded within 60 days of having entered into the agreement, unless you and the Agency agree to a different time period. The mediation agreement between you and the Agency will include provisions for selecting the mediator, the allocation of costs and fees associated with the mediation, and the confidentiality of discussions and documents involved in the mediation, Mediators charge hourly fees that must be shared equally by you and the Agency. Ifa written request for an administrative hearing is not timely received you will have waived your right to have the intended action reviewed pursuant to Chapter 120, Florida Statutes, and the action set forth in the FAR shalt be conclusive and final. (Page 4 of 4) . 2065, Inc. PN 140290100 File # 80333 Page 4 of 4 Complete this form and send along with vour check to: Complete this form and send along with your check to: Agency for Health Care Administration Medicaid Accounts Receivable 2727 Mahan Drive, Mail Stop #14 Tallahassee, Florida 32308 CHECK MUST BE MADE PAYABLE TO: FLORIDA AGENCY FOR HEALTH CARE ADMINISTRATION Provider Name: 2065, Inc. Provider 1D: 140290100 MPI Case #: 121546000 Overpayment Amount: Fine Amount: $13,000.00 Total Amount Owed: $13,000.00 _ Check Number:
Conclusions any 212 Poe ap, AS 1g DOAH No. 12-2633 AHCA No. 2012003965 RENDITION NO.: AHCA-12- {tF 27S Ole DOAH No. 12-2865 AHCA No. 2012008077 License No. 11870 File No. 11967907 Provider Type: Assisted Living Facility DOAH No. 12-2866 AHCA No. 2012003189 THIS CAUSE came on for consideration before the Agency for Health Care Administration (“the Agency”), which finds and concludes as follows: 1 The applicant’s fictitious names on the settlement agreement are reversed. 1 Filed December 7, 2012 4:54 PM Division of Administrative Hearings 1. The Agency has jurisdiction over the above-named Provider pursuant to Chapter 408, Part II, Florida Statutes, and the applicable authorizing statutes and administrative code provisions. 2. The Agency issued the attached Administrative Complaint and Notices of Intent to Deny and Election of Rights forms to the Provider. (Composite Ex. 1) The Election of Rights form advised of the right to an administrative hearing. 3. The parties have since entered into the attached Settlement Agreement. (Ex. 2) 4. The Settlement Agreement is adopted and incorporated by reference into this Final Order. The parties shall comply with the terms of the Settlement Agreement. 5. The Provider’s renewal application for Cooper’s Retirement Home and initial application for Cooper’s Residential Home are withdrawn without prejudice to the Provider reapplying for such licensure in the future. The corresponding Notices of Intent to Deny these applications are moot and are thus withdrawn. 6. In accordance with Florida law, the expiration date of the existing license for Cooper’s Retirement Home is extended 30 days for the sole purpose of allowing the safe and orderly discharge of clients. At the conclusion of 30 days or upon the discontinuance of operations, whichever is first in time, the Petitioner shall immediately return the license certificate for the license which is the subject of this action to the appropriate licensure unit in Tallahassee, Florida. 7. The Provider shall pay the Agency $2,500.00. If full payment has been made, the cancelled check acts as receipt of payment and no further payment is required. If full payment has not been made, payment is due within 30 days of the Final Order. Overdue amounts are subject to statutory interest and may be referred to collections. A check made payable to the “Agency for Health Care Administration” and containing the AHCA ten-digit case number should be sent to: Office of Finance and Accounting Revenue Management Unit Agency for Health Care Administration 2727 Mahan Drive, MS 14 Tallahassee, Florida 32308 8. Any requests for an administrative hearing are withdrawn. The parties shall bear their own costs and attorney’s fees. This matter is closed. ORDERED in Tallahassee, Florida, on this (“4 day of Qeaertlee.. 52012.
Other Judicial Opinions A party that is adversely affected by this Final Order is entitled to seek 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 of 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. CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy ofthis Final we was served on the below- named persons/entities by the method designated on this 6 day of , 2012. Richard Shoop, Agency Cler Agency for Health Care Administration 2727 Mahan Drive, Mail Stop #3 Tallahassee, Florida 32308-5403 Telephone (850) 412-3630 Jan Mills Shaddrick Haston, Unit Manager Facilities Intake Unit Assisted Living Unit Agency for Health Care Administration Agency for Health Care Administration (Electronic Mail) (Electronic Mail) Finance and Accounting Theresa DeCanio, Field Office Manager Revenue Management Unit Area 7 Agency for Health Care Administration Agency for Health Care Administration (Electronic Mail) (Electronic Mail) Katrina Derico-Harris Medicaid Accounts Receivable Agency for Health Care Administration (Electronic Mail) Edwin D. Selby, Senior Attorney Office of the General Counsel Agency for Health Care Administration (Electronic Mail) Shawn McCauley Medicaid Contract Management Agency for Health Care Administration Harvey M. Alper, Esquire Post Office Box 162967 Altamonte Springs, Florida 32716-2967 (U.S. Mail) | Electronic Mail) Lynne A. Quimby-Pennock Administrative Law Judge Division of Administrative Hearings (Electronic Mail) NOTICE OF FLORIDA LAW 408.804 License required; display.-- (1) It is unlawful to provide services that require licensure, or operate or maintain a provider that offers or provides services that require licensure, without first obtaining from the agency a license authorizing the provision of such services or the operation or maintenance of such provider. (2) A license must be displayed in a conspicuous place readily visible to clients who enter at the address that appears on the license and is valid only in the hands of the licensee to whom it is issued and may not be sold, assigned, or otherwise transferred, voluntarily or involuntarily. The license is valid only for the licensee, provider, and location for which the license is issued. 408.812 Unlicensed activity.-- (1) A person or entity may not offer or advertise services that require licensure as defined by this part, authorizing statutes, or applicable rules to the public without obtaining a valid license from the agency. A licenseholder may not advertise or hold out to the public that he or she holds a license for other than that for which he or she actually holds the license. (2) The operation or maintenance of an unlicensed provider or the performance of any services that require licensure without proper licensure is a violation of this part and authorizing statutes. Unlicensed activity constitutes harm that materially affects the health, safety, and welfare of clients. The agency or any state attorney may, in addition to other remedies provided in this part, bring an action for an injunction to restrain such violation, or to enjoin the future operation or maintenance of the unlicensed provider or the performance of any services in violation of this part and authorizing statutes, until compliance with this part, authorizing statutes, and agency rules has been demonstrated to the satisfaction of the agency. (3) It is unlawful for any person or entity to own, operate, or maintain an unlicensed provider. If after receiving notification from the agency, such person or entity fails to cease operation and apply for a license under this part and authorizing statutes, the person or entity shall be subject to penalties as prescribed by authorizing statutes and applicable rules. Each day of continued operation is a separate offense. (4) Any person or entity that fails to cease operation after agency notification may be fined $1,000 for each day of noncompliance. (5) When a controlling interest or licensee has an interest in more than one provider and fails to license a provider rendering services that require licensure, the agency may revoke all licenses and impose actions under s. 408.814 and a fine of $1,000 per day, unless otherwise specified by authorizing statutes, against each licensee until such time as the appropriate license is obtained for the unlicensed operation. (6) In addition to granting injunctive relief pursuant to subsection (2), if the agency determines that a person or entity is operating or maintaining a provider without obtaining a license and determines that a condition exists that poses a threat to the health, safety, or welfare of a client of the provider, the person or entity is subject to the same actions and fines imposed against a licensee as specified in this part, authorizing statutes, and agency rules. (7) Any person aware of the operation of an unlicensed provider must report that provider to the agency.
The Issue Whether Respondent, Agency for Health Care Administration (“Respondent” or “AHCA”), has relied on any statements of general applicability regarding reimbursement of Medicaid expenses which are agency rules, as defined in section 120.52(16), Florida Statutes,1/ but have not been adopted as rules in accordance with section 120.54(1)(a), Florida Statutes.
Findings Of Fact Based on the evidence presented at the final hearing and the record in this matter, the following Findings of Fact are made. Parties Covenant is a provider of hospice and end-of-life services and at all times relevant to this matter, the program was an authorized provider of Medicaid services pursuant to a valid Medicaid provider agreement with AHCA. AHCA is the state agency responsible for administering the Florida Medicaid Program. Medicaid is a joint federal/state program to provide health care and related services to qualified individuals, including hospice services. AHCA is authorized to recover Medicaid overpayments, as deemed appropriate. § 409.913, Fla. Stat. Medicaid Audit Process The U.S. Department of Health & Human Services, Centers for Medicare and Medicaid Services (“CMS”), contracted with Health Integrity, a private vendor, to perform an audit of Covenant. Health Integrity retained a company called Advanced Medical Reviews (“AMR”) to provide peer physician reviews of claims to determine whether an overpayment occurred. On or about December 3, 2013, Health Integrity commenced the audit of Covenant. The scope of the audit was limited to Medicaid recipients that received hospice services from Covenant during the period of January 1, 2011, through December 31, 2012. Generally speaking, the files were identified for review using the following criteria: a) the recipient was not dually eligible (eligible for both Medicaid and Medicare); and b) Covenant provided hospice services for 182 days or longer, based on the recipient’s first and last day of service within the Audit Period. Thus, the objective of the audit was to determine whether certain Medicaid patients were eligible for hospice benefits provided by Covenant. When Health Integrity applied the audit criteria to the Medicaid claims paid by AHCA to Covenant, Health Integrity determined that Covenant had provided hospice services to 62 Medicaid recipients for 182 days or longer during the Audit Period. Covenant provided Health Integrity with medical and related financial records (“Covenant’s Records”) in order to support the eligibility of these 62 patients for Medicaid benefits paid by AHCA. To qualify for the Medicaid hospice program, all recipients must, among other things: a) be certified by a physician as terminally ill with a life expectancy of six months or less if the disease runs its normal course; and b) voluntarily elect hospice care for the terminal illness. See Florida Medicaid Hospice Services Coverage and Limitations Handbook, (January 2007 edition) (“Handbook”) at page 2-3, as adopted by Fla. Admin. Code. R. 59G-4.140 (effective Dec. 24, 2007); see also § 400.6095(2), Fla. Stat., (2010-2012). Health Integrity employs claims analysts who performed an initial review of Covenant’s medical records to determine if the recipients were eligible for Medicaid hospice benefits. All Health Integrity claims analysts are registered nurses. If the Health Integrity claims analyst is able to assess that the patient’s file contains sufficient documentation to justify eligibility for hospice benefits for the entire length of stay under review in the audit, there was no imposition of an overpayment for that file and, thus, the claim is not evaluated further. If the Health Integrity claims analyst is unable to assess whether the patient’s file contains sufficient documentation to determine eligibility for hospice benefits, or if only a portion of the patient’s stay could be justified by the Health Integrity claims analyst, the file is then forwarded to an AMR physician to make the ultimate determination as to eligibility for Medicaid hospice benefits and whether an overpayment is due the Florida Medicaid program. With respect to the Covenant audit, the Health Integrity claims analysts reviewed Covenant’s medical files for the 62 initially identified recipients and determined that no further action was warranted with respect to 10 recipients. As a result, 52 files were referred for physician peer review by AMR. AMR maintains a secure portal (“AMR Portal”) that Health Integrity personnel access to transmit all received provider files to AMR. AMR’s peer review physicians, in turn, use the AMR Portal to review the totality of the provider’s submitted documentation, including all medical case records, and provide their comments. As required by section 409.9131, AHCA referred Petitioner’s records for peer review to determine whether there was a medical necessity for a hospice program. Section 409.9131(2), Florida Statutes, sets forth the following definitions: “Medical necessity” or “medically necessary” means any goods or services necessary to palliate the effects of a terminal condition or to prevent, diagnose, correct, cure, alleviate, or preclude deterioration of a condition that threatens life, causes pain or suffering, or results in illness or infirmity, which goods or services are provided in accordance with generally accepted standards of medical practice. For purposes of determining Medicaid reimbursement, the agency is the final arbiter of medical necessity. In making determinations of medical necessity, the agency must, to the maximum extent possible, use a physician in active practice, either employed by or under contract with the agency, of the same specialty or subspecialty as the physician under review. Such determination must be based upon the information available at the time the goods or services were provided. “Peer” means a Florida licensed physician who is, to the maximum extent possible, of the same specialty or subspecialty, licensed under the same chapter, and in active practice. “Peer review” means an evaluation of the professional practices of a Medicaid physician provider by a peer or peers in order to assess the medical necessity, appropriateness, and quality of care provided, as such care is compared to that customarily furnished by the physician’s peers and to recognized health care standards, and, in cases involving determination of medical necessity, to determine whether the documentation in the physician’s records is adequate. Peer Review Each AMR peer reviewer retained to review the respective recipient’s patient records prepared a written report, which was based on the reviewer’s opinion regarding whether the patient had a terminal diagnosis, with a life expectancy of six months or less to live if the recipient’s terminal illness followed its natural course. The peer reviewers formulated their opinions based on their own training, experience, and the generally accepted standards in the medical community within the respective specialty. The factors for formulating an opinion include the terminal diagnosis, comorbidities, and any other factors that provide a complete picture in evaluating the eligibility for the hospice program. After the AMR peer review physicians reviewed the 52 Covenant recipient files loaded into the AMR Portal, the AMR physicians determined that 23 recipients were eligible for Medicaid hospice services and 29 patients were ineligible. On February 12, 2016, Health Integrity presented the Draft Audit Report (“DAR”) to Covenant for comment and response. Covenant provided a response to the DAR, and contested the overpayments for each of the 29 recipients. Covenant’s response was provided to the AMR peer review physicians, who, after reviewing the response, revised their opinions for four recipients. Therefore, the number of recipients in dispute was reduced to 25 patients. Health Integrity then prepared a Revised Draft Audit Report (“RDAR”), which assessed an overpayment amount of $714,518.14, relating to the 25 recipients. Health Integrity presented the RDAR to CMS and AHCA for approval. After the RDAR was approved by CMS and AHCA, Health Integrity prepared and issued the Final Audit Report (“FAR”), upholding the overpayments identified in the RDAR, and submitted it to CMS. CMS provided the FAR to AHCA with instructions for AHCA to initiate the state recovery process and to furnish the FAR to Covenant. The FAR contains the peer review physicians’ basis for determining why each of the 25 recipients at issue was not eligible for Medicaid hospice services. The FAR determined that Petitioner was overpaid $714,518.14 for services provided to the 25 recipients during the Audit Period. The FAR also imposed a fine of $142,903.63 and assessed costs of $131.38. However, the parties have since reduced the number of disputed patients from 25 to 17 patients. As a result, AHCA is seeking a revised amount of overpayment in the total amount of $677,023.44, with a corresponding revised fine amount of $135,404.68, for the remaining files in dispute. At the heart of Petitioner’s rule challenge are allegations that AHCA relied on agency statements of general applicability regarding a patient’s eligibility for hospice services. To be eligible for Florida Medicaid hospice services, a recipient must be certified by a physician as terminally ill with a life expectancy of six months or less, if the disease runs its normal course. The Handbook also requires: Documentation to support the terminal prognosis must accompany the initial certification of terminal illness. This documentation must be on file in the recipient’s hospice record. The documentation must include, where applicable, the following: Terminal diagnosis with life expect- ancy of six months or less if the terminal illness progresses at its normal course; Serial physician assessments, laboratory, radiological, or other studies; Clinical progression of the terminal disease; Recent impaired nutritional status related to the terminal process; Recent decline in functional status; and Specific documentation that indicates that the recipient has entered an endstage of a chronic disease. Unadopted Rule Challenge Covenant alleged that AHCA relied on the following three types of statements and alleges that those statements are unadopted rules: 1) certain observations included in the peer review physicians’ reports; 2) anticipated findings in the Audit Test Plan; and 3) the inconsistent application of the phrase “where applicable” as found in the Handbook. Covenant’s Exhibit “A” to its Petition identified what it alleges are the statements relied upon by Covenant peer reviewers when determining whether the disputed patients were eligible for hospice. Covenant alleges the statements are “rules” as defined in section 120.52(16). The statements referenced by Covenant in Exhibit “A” include observations regarding the medical condition of the patients referenced. Based on the medical records for each recipient, the statements made by the peer reviewers were opinions formulated based on their medical expertise and experience. The opinion of a peer reviewer is not a standard used to determine the eligibility of a patient, but rather an opinion based on expertise and experience. Based on the testimony, live or by deposition, of AHCA’s peer review physicians, the peer reviewers use the six criteria set forth in the Handbook to determine the respective patient’s eligibility for hospice services. The observations and comments made by the peer reviewers in their reports were based on the medical records for each terminally diagnosed patient. Petitioner argues that AHCA has not engaged in rulemaking to adopt the expert’s opinions based on medical standards. The documented statements in the peer review physician’s opinions were medical determinations made by AHCA’s peer review physicians. They are not standards used to determine the eligibility of each recipient. The peer review physicians evaluated the presence of disease progression, decline in status, increased symptom burden, or severity of the patient’s illness to determine whether the progression of illness would lead to death within six months. Although Covenant challenged statements offered by peer reviewer, Dr. Ankush Bansal, Dr. Bansal’s claims were re-reviewed and AHCA offered the testimony of the new peer review physician to support its claim of overpayment. Thus, the alleged statements documented by Dr. Bansal are not properly before the undersigned for consideration. Anticipated Findings Health Integrity claims analysts reviewed Covenant’s claims and determined whether the claims should also be reviewed by a peer review physician. If the claims analyst determined that a claim needed further review, they were required to have that claim forwarded to a qualified peer review physician who would make a final determination of eligibility. None of the overpayment claims in the DAR or the FAR, as amended, was the result of any decision made by any Health Integrity claims analyst nurse. There was no evidence offered at hearing to demonstrate that the peer review physicians relied on the anticipated findings in the audit process or thereafter. The peer review physician, not the claims analyst, made the determination regarding eligibility, which was based on the criteria in the Handbook. Covenant offered no evidence at hearing that the observations or comments listed in its Petition were the determinative factor for any peer reviewer’s determination that a patient was ineligible for Medicaid hospice services. AHCA’s peer reviewers relied on factors within the patient’s records to make a determination of eligibility for hospice services. Their reliance on their experience and expertise to evaluate eligibility of each patient does not transform their respective statements into a rule. The statements were specific to the individual patient, not general statements of general applicability. Application of “Where Applicable” Language The third and final type of statement challenged by Covenant is the alleged inconsistent application by the peer review physicians of the phrase “where applicable,” which is found in the Handbook. The evidence offered at hearing demonstrates that each peer review physician applied the criteria from the Handbook to determine a patient’s eligibility for hospice services. According to the record, the peer reviewers applied the six criteria in the Handbook based on the patient records, including medical history and diagnosis.
Conclusions This cause came before me for issuance of a Final Order. In a sanction letter dated November 9, 2011, Respondent, Jumerolis Home Care Corp. was informed the Agency was seeking to impose a fine in the amount of eight thousand dollars ($8,000.00). The letter was sent certified mail, return receipt requested to Jumerolis Home Care Corp. (hereinafter “PROVIDER”). The letter contained full disclosure and notice regarding the PROVIDER’S administrative hearing and due process rights. The PROVIDER filed a petition for hearing. Upon review of documents subsequently submitted by the PROVIDER to the Agency, it was determined the sanction should be recalculated and the fine was adjusted to one thousand dollars ($1,000.00). A copy of the correspondence reflecting the recalculated fine is attached hereto and incorporated by reference herein. The PROVIDER paid the fine of $1,000.00 to the Agency’s Finance and Accounting Department on February 21, 2012. Copies of the check(s) and final agency action report(s) are also incorporated by reference herein. The PROVIDER withdrew the Petition. AHCA v Jumerolis Home Care Corp. Page I of 3 Filed April 20, 2012 9:54 AM Division of Administrative Hearings The PROVIDER paid the fine of $1,000.00 to the Agency’s Finance and Accounting Department on February 21, 2012. Copies of the check(s) and final agency action report(s) are also incorporated by reference herein. The PROVIDER withdrew the Petition. Based on the foregoing, the sanction has been paid and the file is CLOSED. DONE AND ORDERED this ~Pba SL Pbay of April, 2012, in Tallahassee, Florida. fl Gh ll tary Agency for Health Care Administration 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: Allan Cao Beverly H. Smith, Esquire Jumerolis Home Care Corp. Assistant General Counsel 956 Southwest 143 Place Agency for Health Care Administration Miami, Florida 33184 2727 Mahan Drive, MS #3 (U.S. Mail) Tallahassee, Florida 32308 (Interoffice Mail) Claude B. Arrington Mike Blackburn, Bureau Chief, Medicaid Administrative Law Judge Program Integrity Division of Administrative Hearings (Interoffice Mail) The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (U.S. Mail) Finance and Accounting Health Quality Assurance AHCA v Jumerolis Home Care Corp. Page 2 of 3 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished to the above named addresses by U.S. Mail on this the 70 Tay of April, 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 AHCA v Jumerolis Home Care Corp. Page 3 of 3 , FLORIDA AGENCY FOR HEALTH CARE ADMINISTRATION, RICK SCOTT we ELIZABETH DUDEK GOVERNOR Better Health Care for all Floridians SECRETARY CERTIFIED MAIL RETURN RECEIPT NO. January 17, 2012 C.I. No: 120804000 Provider No: 142533100 Provider License No: 9687 Jumerolis Home Care Corporation 956 SW 143" Place Miami, Florida, 33184 In Reply Refer to: Sanction Dear Provider: In accordance with Section 409.913, Florida Statutes (F.S.), and Rule 59G-9.070, Florida Administrative Code (F.A.C.), the Agency for Health Care Administration (Agency), shall apply sanctions for violations of federal and state laws, including the following violation of Medicaid policy: e Failure to maintain a current Health Assessment and Service plan in one recipient record. . This letter shall serve as notice of the following sanction(s): e A fine of $1000.00 for violation(s) of 7(e) under Rule Section 59G-9.070, F.A.C. Furthermore, this letter serves as notice that the agency, upon entry of a final agency order, a judgment or order of a court of competent jurisdiction, or a stipulation or settlement, may collect the moneys owed by all means allowable by law, including, but not limited to, notifying any fiscal intermediary of Medicare benefits that the state has a superior right of payment. Upon receipt of such written notification, the Medicare fiscal intermediary shall remit to the state the sum claimed. This is in accordance with Section 409.913, (25) (d) FS. Please remit a certified check in the amount of $1000.00. The check must be payable to the Florida Agency for Health Care Administration. Questions regarding procedures for submitting payment should be directed to Medicaid Accounts Receivable, (850) 488-5869. To ensure proper credit, be certain your provider number and the investigation case number (120804000) are shown on your check. Please mail payment to: Medicaid Accounts Receivable - MS # 14 Agency for Health Care Administration 2727 Mahan Drive Bldg. 2, Ste. 200 Tallahassee, FL 32308 2727 Mahan Drive, MS# 6 Tallahassee, Florida 32308 Visit AHCA online at http://ahca.myflorida.com Jumerolis Home Care Corporation 142533100 File 78604 or Case 120804000 January 17, 2012 Page 2 of 4 If payment is not received, or arranged for, within 30 days of receipt of this letter, the Agency may withhold Medicaid payments or impose additional sanctions, which include, but are not limited to, fines, suspension and termination from the Medicaid Program. You have the right to request a formal or informal hearing pursuant to Section 120.569, F.S. Ifa request for a formal hearing is made, the petition must be made in compliance with Section 28- 106.201, F.A.C. and mediation may be available. If a request for an informal hearing is made, the petition must be made in compliance with rule Section 28-106.301, F.A.C. Additionally, you are hereby informed that if a request for a hearing is made, the petition must be received by the Agency within twenty-one (21) days of receipt of this letter. For more information regarding your hearing and mediation rights, please see the attached Notice of Administrative Hearing and Mediation Rights. Any questions you may have about this matter should be directed to: Heberto A. Blandino, Inspector; Agency for Health Care Administration, Medicaid Program Integrity, P.O. Box 52-2804, Miami, Florida 33152-2804, telephone (305) 718-5900, facsimile (305) 718-5944. Sincerely, Horace Dozier Field Office Manager Office of Inspector General Medicaid Program Integrity Enclosures ce: AHCA Bureau of Finance and Accounting Attn: Katrina Derico-Harris Health Quality Assurance (HQA) (Ex.1) Jumerolis Home Care Corporation 142533100 File 78604 or Case 120804000 January 17,2012 Page 3 of 4 NOTICE OF ADMINISTRATIVE HEARING AND MEDIATION RIGHTS You have the right to request an administrative hearing pursuant to Sections 120.569 and 120.57, Florida Statutes. If you disagree with the facts stated in the foregoing Final Audit Report (hereinafter FAR), you may request a formal administrative hearing pursuant to Section 120.57(1), Florida Statutes. If you do not dispute the facts stated in the FAR, but believe there are additional reasons to grant the relief you seek, you may request an informal administrative hearing pursuant to Section 120.57(2), Florida Statutes. Additionally, pursuant to Section 120.573, Florida Statutes, mediation may be available if you have chosen a formal administrative hearing, as discussed more fully below. The written request for an administrative hearing must conform to the requirements of either Rule 28-106.201(2) or Rule 28-106.301(2), Florida Administrative Code, and must be received by the Agency for Health Care Administration, by 5:00 P.M. no later than 21 days after you received the FAR. The address for filing the written request for an administrative hearing is: Richard J. Shoop, Esquire Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Mail Stop #3 Tallahassee, Florida 32308 Fax: (850) 921-0158 The request must be legible, on 8 4 by 11-inch white paper, and contain: 1. Your name, address, telephone number, any Agency identifying number on the FAR, if known, and name, address, and telephone number of your representative, if any; 2. An explanation of how your substantial interests will be affected by the action described in the FAR; 3. A statement of when and how you received the FAR; 4. For arequest for formal hearing, a statement of all disputed issues of material fact; 5. For a request for formal hearing, a concise statement of the ultimate facts alleged, as well as the rules and statutes which entitle you to relief; 6. For arequest for formal hearing, whether you request mediation, if it is available; 7. For a request for informal! hearing, what bases support an adjustment to the amount owed to the Agency; and 8. A demand for relief. A formal hearing will be held if there are disputed issues of material fact. Additionally, mediation may be available in conjunction with a formal hearing. Mediation is a way to use a neutral third party to assist the parties in a legal or administrative proceeding to reach a settlement of their case. If you and the Agency agree to mediation, it does not mean that you give up the right to a hearing. Rather, you and the Agency will try to settle your case first with mediation. If you request mediation, and the Agency agrees to it, you will be contacted by the Agency to set up a time for the mediation and to enter into a mediation agreement. If a mediation agreement is not reached within 10 days following the request for mediation, the matter will proceed without mediation. The mediation must be concluded within 60 days of having entered into the agreement, unless you and the Agency agree to a different time period. The mediation agreement between you and the Agency will include provisions for selecting the mediator, the allocation of costs and fees associated with the mediation, and the confidentiality of discussions and documents involved in the mediation. Mediators charge hourly fees that must be shared equally by you and the Agency. If a written request for an administrative hearing is not timely received you will have waived your right to have the intended action reviewed pursuant to Chapter 120, Florida Statutes, and the action set forth in the FAR shall be conclusive and final. Jumerolis Home Care Corporation 142533100 File 78604 or Case 120804000 January 17, 2012 Page 4 of 4 Complete this form and send along with your check to: Agency for Health Care Administration Medicaid Accounts Receivable 2727 Mahan Drive, Mail Stop #14 Tallahassee, Florida 32308 CHECK MUST BE MADE PAYABLE TO: FLORIDA AGENCY FOR HEALTH CARE ADMINISTRATION Provider Name: Jumerolis Home Care Provider ID: 142533100 MPI Case #: 120804000 Overpayment Amount: Fine Amount: $1000.00 Total Amount Owed: $1000.00 Check Number: Untitled Document Page 1 of 1 finw knfo] cross Ref [Activities] Contacts|Notes] Docs] Allegations] Payments Payments A Transactions Trans type |_—iDate_—|~——Totaltrans Amount] 0/P] Fine] interest] Misc| ouaij20i2 $3,000.01 _90.03| ¥3,000.00] 90-00] $0.00 BILL ADJUSTMENT 02/21/2012 ($0.01)] ($0.01) $0.00 $0.00} $0.00 COLLECTED 02/21/2012 ($1,000.00)] $0.00] ($1,000.00) $0.00] $0.00 [_eatances] | sono] ano] gaa] ¢0.00] go.00 Disclaimer: This batance should not be used to quote amount due by provider. Only F/A can verify amounts for this purpose. ©1994 infinity Software Development, Inc. User Documentation http://ahcanet/facts/payments_mar.asp 03/07/2012
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.
