The Issue Whether proposed amendments to Florida Administrative Code Rule 59G-8.200 are invalid exercises of delegated legislative authority.
Findings Of Fact AHCA is designated as the single state agency for administering the Federal/State Medicaid Program pursuant to Section 409.902, Florida Statutes (2003).2 The Florida Medicaid Developmental Services Home and Community-Based Services Waiver Program (HCBS or DS waiver services) is one of several Medicaid waiver programs. HCBS is designed to provide services to individuals with developmental disabilities to allow them to remain in the community and avoid placement in institutions. AHCA and DCF have entered into an agreement, by which DCF has agreed to implement the HCBS program. AHCA retains the authority and responsibility to issue policy, rules, and regulations concerning the HCBS program, and DCF is required to operate the program in accordance with those policies, rules, and regulations. The Florida Association of Rehabilitation Facilities, Inc. (FARF), is a not-for-profit 501(c)3 corporation, and a state-wide association of corporate organizations providing services to handicapped and developmentally disabled persons. Of the 61 members of FARF, 51 are Medicaid home and community- based waiver providers who provide services to developmentally disabled persons, who are recipients of the Florida Medicaid program and are enrolled under the HCBS waiver program. The Association for Retarded Citizens of Florida, Inc. (ARC), a not-for-profit corporation, is a state-wide association which works through advocacy, education, and training to reduce the incidence of mental retardation and other developmental disabilities. It has 43 affiliate chapters located throughout the state. Of those affiliate chapters, 40 are Medicaid providers, which provide Medicaid services to developmentally disabled persons who are recipients of the Florida Medicaid program and are enrolled under the HCBS waiver program. ARC also has approximately 1,500 individual members. Between 25 to 50 percent of the individual members are either self-advocate recipients of services from the HCBS waiver program or family members or guardians of HCBS waiver program recipients. On January 17, 2003, AHCA published a Notice of Rule Development concerning proposed amendments to Florida Administrative Code Rule 59G-8.200. The proposed amendments incorporated by reference changes to a handbook entitled "Developmental Services Waiver Services and Coverage and Limitations Handbook" (Handbook). AHCA published its Notice of Proposed Rule on July 25, 2003. A First Notice of Change was published on October 17, 2003, and a Second Notice of Change was published on November 26, 2003. A Notice of Additional Hearing was published on November 26, 2003, and a final public hearing on the proposed amendments was held on January 6, 2004. The Handbook's purpose is stated in the Handbook as follows: The purpose of the Medicaid handbooks is to furnish the Medicaid provider with the policies and procedures needed to receive reimbursement for covered services provided to eligible Florida Medicaid recipients. The Handbook provides that a provider must have a signed DS Waiver Services Agreement with DCF in order to be eligible to provide DS waiver services. The Developmental Disabilities Program Medicaid Waiver Services Agreement (DS Waiver Services Agreement) requires the provider to comply with all the terms and conditions contained in the Handbook for specific services rendered by the provider. During the rulemaking process, AHCA involved stakeholders in the development of the amendments to Florida Administrative Code Rule 59G-8.200, including changes to the Handbook. A stakeholder is an organization or individual who has a primary interest in the HCBS waiver program or is directly affected by changes in the program. At the final hearing, Shelly Brantley, former bureau chief of AHCA's Medicaid Program Development, correctly described ARC and FARF as stakeholders for the HCBS waiver program. Petitioners conducted surveys of their membership to determine whether the proposed changes to the Handbook would adversely affect their members. Surveys were also conducted to determine whether any of the members were small businesses as that term is defined in Section 288.703, Florida Statutes. Of the 51 provider members in FARF, 15 qualified as small businesses having less than 200 employees and less than $5 million in total assets. Of ARC's 40 provider members, 38 met the small business definition of Section 288.703, Florida Statutes. Such surveys by associations provide the type of information that would be commonly relied upon by reasonably prudent persons in the conduct of their affairs. AHCA acknowledged that small businesses would be impacted by the changes to the Handbook, and the impact to small businesses was discussed and considered in developing the proposed rules. As of the date of the final hearing, AHCA had not sent a copy of the proposed rules to the small business ombudsman of the Office of Tourism, Trade, and Economic Development as required by Subsection 120.54(3)(b)2.b., Florida Statutes. Petitioners have alleged that AHCA failed to follow applicable rulemaking procedures by not having the Handbook available at the time of the publication of the notice of rulemaking on July 25, 2003, and the notices of changes published on October 17, 2003, and November 21, 2003. Although the Handbook was incorporated by reference as an amendment to Florida Administrative Code Rule 59G-8.200(12), the major purpose of the amendment was to make changes in the Handbook. The Notice of Rulemaking published on July 25, 2003, provided that the Handbook was available from the Medicaid fiscal agent. However, the revised Handbook was not generally available until August 2003. Further revisions to the Handbook were not readily available at the time the notices of changes were published. The lack of availability of the Handbook on the dates of the publication of the notices did not impair the fairness of the rulemaking proceedings or the substantial interests of Petitioners. Petitioners had an opportunity to review the handbook and to give input to AHCA concerning the proposed changes. Petitioners did get copies of the revised Handbook in time to meaningfully participate in the two public hearings which were held on the proposed rules, and Petitioners had an opportunity to provide written comments on the revisions to the Handbook. At the final public hearing held on January 6, 2004, AHCA provided the participants with a "clean copy" of the Handbook, meaning a copy in which the underlines and strike- throughs had been deleted and the text read as it would read when published in the Florida Administrative Code. This caused confusion among the attendees at the public hearing because "clean copy" Handbooks had not been available to the public prior to the final hearing. With one exception concerning residential habilitation services for children, which is discussed below, the "clean copy" of the Handbook was essentially the same as the version which had been available to the public, in which added language was underlined and deleted language was struck-through. The interests of Petitioners and the fairness of the rulemaking proceedings were not impaired by the use of a "clean copy" of the Handbook at the January 2004 final public hearing. A state Medicaid Agency is required to provide notice to a recipient ten days before the agency takes action to reduce a benefit pursuant to 42 CFR Section 431.200. The evidence did not establish whether AHCA provided notice to HCBS waiver recipients that the proposed changes to the rule would reduce certain benefits. Some of Petitioners' witnesses did not think that any of their individual members received notice, but there was no direct evidence to establish that no notice was provided. Petitioners challenged the following provision of the Handbook: Providers wishing to expand their status from a solo provider to an agency provider, or a provider desiring to obtain certification in additional waiver services must be approved by the district in order to expand. A provider must have attained an overall score of at least 85% on their last quality assurance monitoring conducted by the Agency, the Department, or an authorized agent of the Agency or Department in order to be considered for expansion. Petitioners argue that the language in this portion of the Handbook is vague and gives AHCA unbridled discretion when "considering" a provider for expansion. The language is not vague and does not give AHCA unbridled discretion when a provider is considered for expansion. In order for a provider to be considered for expansion, the provider must have scored at least 85 percent on their last quality assurance monitoring. The 85-percent score is a threshold which the provider must meet before AHCA will determine whether the provider meets other criteria for expansion, which are set out in the Handbook, statutes, and rules. Recipients have a freedom of choice in selecting their service providers from among enrolled, qualified service providers. Recipients may change service providers to meet the goals and objectives set out in the their support plans. Petitioners have challenged the following provision, which AHCA proposes to add to the freedom of choice section of the Handbook: Freedom of choice includes recipient responsibility for selection of the most cost beneficial environment and combination of services and supports to accomplish the recipient's goals. Petitioners contend that the language is vague, arbitrary, and capricious, fails to establish adequate standards for agency discretion, and vests unbridled discretion in AHCA. The term "cost beneficial" is defined in the Handbook to mean "economical in terms of the goods or services received and the money spent." The Handbook also contains the following definition for a support plan: Support plan is an individualized plan of supports and services designed to meet the needs of an enrolled recipient. This plan is based upon the preferences, interests, talents, attributes and needs of a recipient. The recipient or parent, legal guardian advocate, as appropriate, shall be consulted in the development of the plan and shall be receive a copy of the plan and any revisions made to the plan. Each plan shall include the most appropriate, least restrictive, and most cost-beneficial environment for accomplishment of the objectives and a specification of all services authorized. The plan shall include provisions for the most appropriate level of care for the recipient. The ultimate goal of each plan, whenever possible, shall be to enable the recipient to live a dignified life in the least restrictive setting, appropriate to the recipient's needs. The support plan must be completed according to the instructions provided by the Department. (emphasis supplied) The "most cost-beneficial" language is not new. It already exists in the current Handbook, which is incorporated by reference in Florida Administrative Code Rule 59G-8.200. The proposed amendment does not impose a new requirement on recipients, and it is not vague, arbitrary, or capricious. The "most cost beneficial" language is consistent with the Handbook provision defining the terms "medical necessity" or "medically necessary" as they relate to the determination of the need and appropriateness of Medicaid services for a recipient. One of the conditions needed for a determination that a service is a medical necessity is that the service "be reflective of the level of service that can be safely furnished, and for which no equally effective and more conservative or less costly treatment is available, statewide." Petitioners have challenged the following provision of the Handbook: All direct service providers are required to complete training in the Department Direct Care Core Competencies Training, or an equivalent curriculum approved by the Department within 120 days from the effective date of this rule. Said training may be completed using the Department's web- based instruction, self-paced instruction, or classroom instruction. Providers are expected to have direct care staff who are competent in a set of direct care core areas. A curriculum has been developed to provide assistance to the providers in training their direct staff to become competent in these direct care areas. The training curriculum consists of two modules, with three different training formats. Petitioners contend that the curriculum was not completely developed, and would not be in existence at the time the rules are adopted. The Web-based format was completed in the fall of 2003, and the other two formats were completed in the spring of 2004. Thus, the Department's Direct Care Core Competencies Training is available. Petitioners have challenged the following provision of the Handbook: The current Department approved assessment, entitled Individual Cost Guidelines (ICG), is a tool designed to determine the recipients' resource allocations of waiver(s) funds for recipients receiving supports from the State of Florida, Department of Children and Families, Developmental Disabilities Program (DDP). The ICG is a validated tool that provides a rational basis for the allocation of the waiver funds to individuals with developmental disabilities. Waiver(s) funds refers to funds allocated through the Developmental Services HCBS waiver, the Supported Living Wavier, and the Consumer- Directed Care Plus waiver (CDC+). The instructions for the completion of this assessment is provided by the Department and is completed at least every three years or as determined necessary by the recipient and the waiver support coordinator, due to changing needs of the recipients. It is Petitioners' contention that the ICG, like the Direct Care Core Competencies Training, was not completed and would not be available to the providers prior to the adoption of the proposed rules. The ICG was completed in the fall of 2003. Its validity and reliability as an assessment tool for assessing needs of individual recipients has been tested. During September and October 2003, a three-day workshop was held in every district of DCF for the purpose of training workers to administer the ICG. The first day of the workshop provided an overview for interested persons. Hardcopies of the ICG were handed out for review by the participants, including providers. Petitioners have challenged the portion of the Handbook which provides, "[t]he primary live in support worker shall be named on the lease along with all other recipients." It is Petitioners' position that the proposed language is in conflict with unchallenged language in the proposed Handbook and is contrary to the guidelines in the State Medicaid Manual. The unchallenged portion of the Handbook at page 2-77 provides: The in-home support provider or the provider's immediate family shall not be the recipient's landlord of have any interest in the ownership of the housing unit as stated in Chapter 65B-11.005(2)(c), F.A.C.[3] If renting, the name of the recipient receiving in-home support services must appear on the lease singularly or as a guarantor. The State Medicaid Manual provides at page 4-450, subsection 12, that "FFP for live-in care givers is not available in situations in which the recipient lives in a caregiver's home or a residence owned or leased by the provider of Medicaid services." AHCA contends that the purpose for requiring the live- in support worker to sign the lease is to prevent the live-in home support worker (worker) from taking advantage of the recipient by failing to contribute anything to the normal living expenses. Having the worker named on the lease does not guarantee that the worker will pay his or her portion of the rent. The recipient is still liable to the landlord whether the worker pays, and the worker would be liable whether the recipient paid. The unchallenged portion of the proposed changes to the Handbook provides that the worker must pay an equal share of the room and board for the home. Having the worker on the lease poses problems when the worker is no longer providing services. The landlord may not be willing to renegotiate the lease by substituting another worker on the lease. Additionally, the worker may not wish to vacate the premises just because he or she is no longer providing services, and, since the worker is a lessee of the property, the recipient may have to find new quarters if the recipient does not desire to share the home with the worker. Petitioners have challenged the portion of the Handbook which provides that "[t]he amount of respite services are determined individually and limited to no more than thirty (30) days per year, (720 hours) per recipient." Respite care is defined in the Handbook as "a service that provides supportive care and supervision to a recipient when the primary caregiver is unable to perform these duties due to a planned brief absence, an emergency absence or when the caregiver is available, but temporarily unable to care for or supervise the recipient for a brief period of time." Respite care services are designed to be provided for a short time. In determining the amount of time to limit respite care, AHCA reviewed historical data and did not find that many individuals used respite care service for more than two weeks. Stakeholders, family members of recipients, and recipients were involved in discussions with AHCA concerning the time limitation to 30 days. AHCA reviewed other waiver state agencies and found that waivers for individuals with developmental disabilities have similar limits on respite care. Individuals whose primary caregiver may become unavailable for a period of greater than 30 days may receive other types of services to assist them while their caregivers are absent. The types of services that may be available are determined on a case-by-case basis. Petitioners have challenged the portion of the Handbook which provides: III. FINES AND PENALTIES In accordance with the provisions of Section 402.73(7), Florida Statutes, and Section 65-29.001, Florida Administrative Code, penalties may be imposed for failure to implement or to make acceptable progress on such quality improvement plans as specified in Section II.A of this Agreement. The increments of penalty imposition that shall apply, unless the Department determines that extenuating circumstances exist, shall be based upon the severity of the non-compliance, non-performance or unacceptable performance that generated the need for a quality improvement plan. The penalty, if imposed, shall not exceed ten percent (10%) of the total billed by the provider for services during the period in which the quality improvement plan has not been implemented, or in which acceptable progress toward implementation has not been made. This period is defined, as the time period from receipt of the report of findings to the time of the follow-up determination that correction or progress toward improvement has not been made. Non-compliance that is determined to have a direct effect on individual health and safety shall result in the imposition of a ten percent (10%) penalty of the total payments billed by the provider during the period in which the quality improvement plan has not been implemented or in which acceptable progress toward implementation has not been made. Non-compliance involving the provision of training responsibilities or direct service to the individual not having a direct effect on individual health and safety shall result in the imposition of a five percent (5%) penalty. Non-compliance as a result of unacceptable performance of administrative tasks, such as policy and procedure development, shall result in the imposition of a two percent(2%) penalty. In the event of nonpayment, the Department will request the Agency for Health Care Administration deduct the amount of the penalty from claims submitted by the provider for the covered time period. This penalty provision is contained in the DS Waiver Services Agreement contained in Appendix B of the Handbook. The providers are required to complete the agreement to provide services to recipients and are required to comply with the terms and conditions of the agreement. Although the agreement is between the Developmental Disabilities Program of DCF and the providers, DCF is entering into the agreement pursuant to an interagency agreement between DCF and AHCA that DCF will operate the waiver program on behalf of AHCA. AHCA establishes the rules, policies, procedures, regulations, manuals, and handbooks under which DCF operates the program. The inclusion of the penalties provision in the agreement is done based on the authority of Subsection 402.73(7), Florida Statutes, and Florida Administrative Code Rule 65-29.001, which govern the authority of DCF, not AHCA. If AHCA seeks to impose penalties on providers relating to the waiver program, it can do so only based on its statutory authority. DCF merely stands in the shoes of AHCA and has only the authority for the operation of the waiver program that AHCA would have if AHCA were operating the program itself. Petitioners have challenged the portion of the Handbook which reduces the maximum limits of residential habilitation services from 365 days to 350 days. AHCA contends that the reduction of days is merely a reduction in the maximum number of days that a provider can bill for residential habilitation services. The rate at which the provider is being compensated includes a 15-day vacancy factor. The State Medicaid Manual from the Center for Medicare and Medicaid allows for this type of reimbursement and provides: FFP [federal financial participation] is not available to facilities providing services in residential settings on days when waiver recipients are temporarily absent and are not receiving covered waiver services (sometimes called reserve bed days). Medicaid payment may be made only for waiver services actually provided to an eligible recipient. Since providers incur fixed costs such as rent, staff salaries, insurance, etc., even when a waiver recipient is temporarily absent, you may account for such continuing costs when developing payment rates for these providers. For example, rent is generally paid for a period of 1 month. However, day habilitation services are generally furnished only 5 days per week. You may take the entire month's rental cost into consideration in setting the rate paid for services furnished on the days the recipient is present. Similarly, if data shows that a recipient is served in residential habilitation an average of 325 days per year and the slot is held open when the recipient is on a leave of absence, you may consider the entire yearly cost to the provider when establishing its rate of payment. However, in the rate setting process, it must be assumed that a facility will not have a 100 percent utilization rate every day of the year. Consequently, payment rates are established by dividing the provider's total allowable costs by the number of Medicaid patient days you estimate recipients will actually utilize. The change from 365 days to 350 days is not a reduction in service, it is a reimbursement method which utilizes a 15-day vacancy factor. The number of days chosen was based on information furnished by the providers to AHCA during a survey completed in July 2003. Based on the survey, it was concluded that the providers billed for services for 345 to 350 days per year. Contrary to its present position, Petitioner FARF took the position early in the rulemaking procedure that billing on a 365-day year would be harmful to the providers. In a letter to AHCA dated February 4, 2003, Terry Farmer, CEO of FARF, advised: Attached is a compilation of written comments from Florida ARF members on the proposed rule #59G-8.200, titled "the Home and Community Based Services Waiver." * * * Going to the 365 day billing schedule will create hardships for consumers, families and providers because it discourages weekly home visits and doesn't address frequent hospitalizations or vacations. The 15 day down factor is very low for consumers who want to go home 2-3 times a month and would also like a yearly vacation. Recommendation: Increase the down factor to 5 days per month (60 days per year) to accommodate for absences in order to reduce the negative impact of home visits and vacations upon both the consumer and group home provider. This is particularly important when the focus is on meeting Personal Outcomes that may result in the consumer being away from the group home. Petitioners have challenged the portion of the Handbook which deleted the following provision: Residential habilitation services may be provided to children residing in a licensed facility or children with severe behavioral issues living in their family home. The child must have a written behavior analysis service plan that is written and monitored by a certified behavior analyst, in order for the services by a behavior assistant to be reimbursed under residential habilitation. The focus of the service is to assist the parents in training and implementing the behavior analysis services plan. At the final hearing, AHCA conceded that it was in error when it deleted the language relating to the provision of residential habilitation services to children and stated that the language would be reinstated. Section 409.908, Florida Statutes, provides: Subject to specific appropriations, the agency shall reimburse Medicaid providers, in accordance with state and federal law, according to methodologies set forth in the rules of the agency and in policy manuals and handbooks incorporated by reference therein. AHCA set out its rate methodology for Developmental Services Home and Community Based Services rate reimbursement in Appendix A of the Handbook. Petitioners have challenged the rate methodology, stating that it was vague, failed to establish standards for agency discretion and vested unbridled discretion in AHCA's determination of rate reimbursement. The rate of reimbursement cannot be determined based on rate methodology. However, based on a reading of the introductory language to the rate methodology, it does not appear that it was the intent of AHCA to be able to determine the rates by using the rate methodology in Appendix A, and staff of AHCA readily admit that a specific rate for a specific service cannot be determined using the language in the methodology alone. The first paragraph of the methodology states: The following section describes key aspects of the Developmental Services (DS) Home and Community Based Services (HCBS) rate reimbursement structure. Specifically the cost items for each rate component are listed, agency and independent contract status is defined, and the rate structure for various services is described. It appears that the methodology set out in Appendix A is an overview of the process that was used in determining the rates. AHCA is in the process of developing rules that set out the actual rates that will be used. Petitioners have challenged the portion of the Handbook which provides that the maximum limit for adult day training is 240 days, a reduction from 260 days. The reduction of adult day training days is a limitation on services and a limitation on billing. The rate for providing adult day training contains a similar vacancy factor as contained in the rate for residential habilitation services. The purpose of adult day training is to provide training for skills acquisition. Adult day training is provided five days a week, meaning that the maximum time any recipient could spend in adult day training is 260 days a week. However, adult day training is not provided 260 days a year. No training is provided on holidays such as Christmas, Thanksgiving, Memorial Day, Labor Day, and other normal holidays. Generally, individuals do not attend training 260 days a year for other reasons such as hospitalizations. In determining that 240 days would be sufficient in amount, duration, and scope, AHCA contacted providers and learned that recipients generally do not receive adult day training more than 240 days per year.
The Issue Whether the Agency for Health Care Administration (AHCA) should take the final agency action it announced, in its July 18, 2001, letter to Petitioner, it intended to take with respect to certain Medicaid claims Petitioner had filed.
Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following findings of fact are made: The Medicaid program is a cooperative federal-state venture designed to provide health care to the needy. States participating in the program receive federal financial assistance for compensating enrolled providers for the goods and/or services they provide Medicaid recipients in accordance with the program's requirements. Florida is a participant in the Medicaid program. AHCA is the state agency responsible for making payments to enrolled Medicaid providers in Florida. In discharging this responsibility, it is assisted by a fiscal intermediary with whom it contracts. Florida has applied for, and been granted by the federal government, "waivers" in order to use Medicaid funds to pay for certain "home and community-based services" (HCBS), including, among others, adult day health care, to individuals who, if not provided these services, would require institutionalization. Among Florida's HCBS "waiver" programs is the Aged/Disabled Adult (ADA) "waiver" program, which targets needy individuals 65 years of age or older, as well as needy disabled adults aged 18 to 64, who qualify for nursing home placement. The Florida Department of Elder Affairs (DOEA), with the help of the 11 Area Agencies on Aging throughout the state and their contractors, coordinates the provision of services to these targeted individuals (which services AHCA pays for). At all times material to the instant case, the Alliance for Aging, Inc., has been the Area Agency on Aging serving Miami-Dade County. Before an individual may receive ADA "waiver" services, (s)he must undergo an assessment by DOEA or its designee to determine whether (s)he needs the required level of care to be eligible for such services. This assessment is referred to by the acronym "CARES," which stands for "Comprehensive Assessment and Review for Long Term Care Services." Individuals determined to be eligible to receive ADA "waiver" services must have a plan of care established for them by an authorized case management agency. Having such a plan of care is a prerequisite to their receiving any services (other than case management services from an authorized case management agency). They may receive only those services identified in the plan of care. At all times material to the instant case, the only two agencies authorized to provide case management services to ADA "waiver" recipients residing in Miami-Dade County were United Home Care Services, Inc. (United) and Miami-Dade County's Elderly Services unit (Miami-Dade Elderly Services). To be entitled to paid by AHCA for rendering ADA "waiver" services to eligible individuals with an authorized case management agency-developed plan of care, a provider must not only have a Medicaid provider number and be a party to a Medicaid provider agreement with AHCA enabling it to bill Medicaid for the type of services rendered, the provider must also have a referral agreement with the authorized case management agency that developed the recipient's plan of care and, in addition, the recipient must have been referred to the provider by the case management agency for purposes of receiving the services rendered (pursuant to the request of the recipient, who has the right to choose among enrolled providers qualified to provide the services). At all times material to the instant case, AHCA had in effect a rule describing Florida's HCBS "waiver" programs, including the ADA "waiver" program. The rule, Florida Administrative Code Rule 59G-8.200, provided as follows: Purpose. Under authority of Section 2176 of Public Law 97-35, Florida obtained waivers of federal Medicaid requirements to enable the provision of specified home and community-based (HCB) services to persons at risk of institutionalization. Through the administration of several different federal waivers, Medicaid reimburses enrolled providers for services that eligible recipients may need to avoid institutionalization. Waiver program participants must meet institutional level of care requirements. The HCB waiver services are designed to allow the recipients to remain at home or in a home- like setting. To meet federal requirements, Medicaid must demonstrate each waiver's cost-effectiveness. Definitions. General Medicaid definitions applicable to this program are located in Rule 59G-1.010, F.A.C. Additional descriptions of services available under this program are provided in subsection (3) of this rule. The following definitions apply: "Agency" means the Agency for Health Care Administration, the Florida state agency responsible for the administration of Medicaid waivers for home and community- based (HCB) services. "Department" means the Florida Department of Elderly Affairs (DOEA). Home and Community-Based (HCB) Waiver Services are those Medicaid services approved by the Health Care Financing Administration under the authority of Section 1915(c) of the Social Security Act. The definitions of the following services are provided in the respective HCB services waiver, as are specific provider qualifications. Since several similar services with different names may be provided in more than one waiver, this section lists them as a cluster. A general description of each service cluster is provided. Individuals eligible for the respective HCB services waiver programs may need and receive the following services: * * * (b) Adult Day Health Care and Day Health Care are services provided in an ambulatory care setting. They are directed toward meeting the supervisory, social, and health restoration and maintenance needs of adult recipients who, due to their functional impairments, are not capable of living independently. * * * (e) Case Management, Waiver Case Management, and Support Coordination are services that assist Medicaid eligible individuals in gaining access to needed medical, social, educational and other services, regardless of funding source. * * * (i) Counseling, Mental Health Services, Education and Support, and Behavioral Analysis are services provided for the diagnosis or treatment of mental, psychoneurotic, or personality disorders, or providing assistance to recipients in identifying feasible goals, providing emotional support and guidance, providing advice about community resources, or exploring possible alternative behavior patterns. * * * Respite Care is the provision of supervisory, supportive, and short-term emergency care necessary to maintain the health and safety of a recipient when the primary caregiver is not available to provide such care or requires relief from the stress and demands associated with daily care. Risk Reduction services provide care and guidance to caregivers, based on a plan of specific exercises for the recipient to increase physical capacity, strength, dexterity, and endurance to perform activities of daily living. This service also includes assessment and guidance for the recipient and caregiver to learn to prepare and eat nutritious meals and promote better health through improved nutrition. This service may include instructions on shopping for appropriate food, preparation, and monitoring of same. This service also provides guidance for budgeting and paying bills, which may include establishing checking accounts and direct deposits to lessen the risk of financial exploitation and abuse of the recipient. * * * Covered Services -- General. Services provided under the HCB services waivers include those described in paragraphs (3)(a) through (ff). The availability of these services to waiver program participants is subject to approval by the Medicaid office and is subject to the availability of the services under the specific waiver program for which a recipient has been determined eligible. Service Limitations -- General. The following general limitations and restrictions apply to all home and community-based services waiver programs: Covered services are available to eligible waiver program participants only if the services are part of a waiver plan of care ("care plan", "individual support plan", or "family support plan"). Care plan requirements are outlined in subsections (6) and (8) of this rule. The agency or its designee shall approve plans of care based on budgetary restrictions, the recipient's necessity for the services, and appropriateness of the service in relation to the recipient, prior to their implementation for any waiver recipient. Additional service limitations applicable to specific waiver programs are specified in subsections (10) through (14) of this rule. Program Requirements -- General. All HCB services waiver providers and their billing agents must comply with the provisions of the Florida Medicaid Provider Reimbursement Handbook, Non-Institutional 081, November 1996, which is incorporated by reference and available from the Medicaid fiscal agent. The following requirements are applicable to all HCB services waiver programs: The Medicaid program will deny an applicant's request if the proposed enrollment could cause the program to exceed the maximum enrollment level authorized by the Health Care Financing Administration in the applicable HCB services waiver. To be eligible to receive HCB waiver services, each applicant must receive case management services, plus at least one other HCB waiver service. * * * The Department or its designee will perform an evaluation of the level of care needed by an applicant for services when there is a reasonable indication that the applicant might need institutionalization in the near future, if the covered HCB services were not available. The Department or its designee will perform reevaluations of level of care at least annually, or as changes in the recipient's condition or community care setting may warrant. The plan of care will identify the type of services to be provided, the amount, frequency, and duration of each service, and the type provider to furnish each service. Reimbursement claims for the provision of Medicaid services not listed in the plan of care of HCB services waiver program participants are subject to denial or recoupment. In providing applicants or participants freedom of choice, the Agency or its designee must: Inform all prospective waiver program participants of the feasible alternatives available under the respective waiver program and afford recipients a freedom of choice to participate in the community program in lieu of institutional placement; Afford recipients the opportunity to choose from those enrolled providers capable of providing the covered services identified in the recipient's plan of care; and Afford all enrolled recipients the right to disenroll at any time. * * * Provider Qualifications and Provider Enrollment. To enroll and participate in the waiver programs, providers must comply with the provisions of Chapter 59G-5, F.A.C. Additional provider requirements are specified in subsections (10) through (14) of this rule. Case Management Requirements. Case managers advocate for recipients during the eligibility determination process and assist applicants in complying with requests for information, interviews, or activities required for a determination of Medicaid eligibility. Case managers will conduct a comprehensive needs assessment and identify areas in the person's life that require supports or services to reduce the risk of having to be placed in an institution. In addition, each case manager will: Begin the initial needs assessment before services are provided and complete it within 30 days of enrollment in the waiver program; Make a home visit as part of the needs assessment process; Prepare a written plan of care for each program participant and maintain the plan in the participant's case record; Reassess the plan of care at least every six months to review service goals, outcomes, and functional changes that may warrant the modification of the plan and reassessment of the recipient's level of care; After the needs assessment has been completed, maintain in each client's record case progress notes that document the provision of services; Make legible entries in the case progress notes in sufficient detail to document the case management service rendered and to allow an audit of the appropriateness of charges; Date and sign all written case record entries; Notify the Agency of all disenrollments by waiver program participants within 30 days after the effective date; and Maintain records in an accessible location for review by authorized federal and state representatives for monitoring and auditing purposes; ensure that recipient specific information is maintained as "confidential"; ensure that program, administrative, and financial information is maintained for a period of at least five years after termination of participation as a waiver service provider. If an audit has been initiated and audit findings have not been resolved at the end of five years, the records will be retained until resolution of the audit findings. Home and Community-Based Services Waiver Programs. The following are authorized HCB services waivers: (a) Aged and Disabled Waiver; * * * (c) Developmental Services Waiver; * * * Aged/Disabled Waiver. Program Summary. The aged/disabled waiver is a long-term care initiative providing HCB services to the aged and disabled as an alternative to institutional care. Services are available statewide to recipients who meet the eligibility requirements as specified in paragraph (10)(c) of this rule. Covered Services and Provider Qualifications. Providers must meet the criteria specified in Chapter 59G-5, F.A.C. In addition, providers must be under contract with the Department for the provision of HCB services available under this waiver. Provider qualifications for services are: 1. Adult Day Health Care providers must be licensed adult day health care centers in accordance with Rule 59A-16.003, F.A.C. * * * 4. Case Management providers must be CCE contractors, or community care for the disabled adults contractors, or staff of the Department who serve the community care for the disabled adults program, pursuant to Ch. 10A-10, F.A.C. * * * 7. Counseling providers must be licensed psychologists or mental health counselors pursuant to s. 490.001-490.015, F.S., licensed social workers pursuant to pursuant to s. 491.002-491.015, F.A.C., or licensed mental health centers, pursuant to s. 394.65-394.907, F.S. * * * Respite Care providers must be licensed Medicaid participating home health agencies, CCE agencies, or residential providers, pursuant to s. 400.011-400.332, F.S., s 400.401-400.454, and s. 400.616-400.629, F.S. Risk Reduction Services providers must be community care agencies, Medicaid participating home health agencies, or independent contractors, pursuant to Section 61F11-4, F.A.C. * * * Recipient Eligibility. Individuals must meet Medicaid eligibility requirements as defined by Chapter 409, F.S., and Florida's Title XIX State Plan; or be physically disabled or aged as defined by Chapter 10C-8, F.A.C., and 42 C.F.R. 435.217 and 435.726, as of October 1, 1994, the latter two hereby incorporated by reference. Recipients must be assessed as meeting level of care criteria for skilled or intermediate nursing home care as defined in Sections 59G-4.290 and 59G-4.180, F.A.C., and must be at risk for nursing facility placement without the provision of HCB services. Recipients must receive waiver case management and at least one other HCB service to be Medicaid eligible at the institutional care placement (I.C.P.) level. Program Operations. The HCB services program under this waiver shall comply with the provisions of Chapters 10A-4, 10A-5, 59A-16, 10A-8, 10A-10, 10A-11, and 10A-14, F.A.C. * * * (12) Developmental Services Waiver Program Summary. This program provides HCB waiver services to recipients with developmental disabilities who are clients of the Department of Health and Rehabilitative Serves (HRS) developmental services (DS) program, and who are eligible for admission to an intermediate care facility for the mentally retarded- developmentally disabled (ICF/MR-DD). The recipients have elected services in the community rather than in an ICF/MR-DD. Covered Services and Provider Qualifications. Providers of DS waiver services must be certified by the HRS DS program in each district where it applies to provide services. . . . * * * The Florida Medicaid Provider Reimbursement Handbook, Non-Institutional 081, November 1996, which was incorporated by reference in Florida Administrative Code Rule 59G-8.200, stated the following, among other things, in its first chapter, about Florida's HCBS "waiver" programs: Description: The Social Security Act allows states to obtain waivers to provide home and community-based services (HCBS) to target groups of recipients. These services are designed to help the recipient avoid placement in expensive and restrictive institutional settings. To receive waiver services, a recipient must be enrolled in the specific waiver program. HCBS Waiver Provider Enrollment: In order for a provider to be reimbursed for rendering a home and community-based service to an eligible recipient, the provider must be enrolled as a waiver-specific HCBS provider. All home and community-based services must be prior approved by a waiver case manager. Note: See the waiver specific Coverage and Limitations Handbook for additional information about HCBS provider enrollment. Florida HCBS Programs: Florida has seven HCBS waiver programs. They are: Aged/Disabled Adult Waiver * * * Developmental Services Waiver * * * Aged/Disabled Adult Waiver: The Aged/Disabled waiver serves frail elderly and adults with disabilities who are at risk of placement in a nursing facility. * * * Developmental Services Waiver: The Developmental Services waiver serves people who are at risk of placement in an intermediate care facility for the developmentally disabled (ICF/DD). * * * Chapter 2 of the Florida Medicaid Provider Reimbursement Handbook, Non-Institutional 081, November 1996, included the following information about "[p]rovider [e]nrollment": Introduction: Every facility, individual and group practice must submit an application and sign an agreement in order to provide Medicaid services. HCBS and Targeted Case Management: Home and community-based services (HCBS) and targeted case management providers must enroll through the state agency or state-contracted entity that administers the waiver or targeted case management service. Note: See the waiver-specific or Targeted Case Management Coverage and Limitations Handbook for the specific enrollment requirements. Chapter 3 of the Florida Medicaid Provider Reimbursement Handbook, Non-Institutional 081, November 1996, included the following information about "Medicaid [r]ecipient [e]ligibility": Eligibility Determination Eligibility Requirements: To qualify for Medicaid an individual must meet specific eligibility requirements such as age, citizenship or resident alien status, Florida residency, and either having a Social Security Number of proof of having applied for one Who Determines Eligibility: Eligibility for Medicaid is determined by the Florida Department of Health and Rehabilitative Services (HRS), or by the federal Social Security Administration (SSA) for certain categories of elderly and disabled individuals. In January 1997, HRS will be divided into two departments: The Department of Health and the Department of Children and Families. The Department of Children and Families will be responsible for HRS' recipient eligibility functions. * * * Eligibility for HCBS and Targeted Case Management: In addition to being eligible for Medicaid, recipients must meet specific eligibility criteria to enroll in a HCBS waiver or to receive targeted case management. Note: See the program-specific Coverage and Limitations Handbook for the additional eligibility criteria. Eligibility Periods: . . . . A provider must verify a recipient's eligibility prior to rendering a service. The Medicaid Computer System Introduction: The Florida Medicaid Management Information System (FMMIS) is the system that processes claims, makes payments to Medicaid providers, and issues Medicaid identification cards. Medicaid will not reimburse a claim unless FMMIS shows that a recipient is eligible on the date of service. * * * Program Codes: The Medicaid program for which a recipient is eligible is identified on the FMMIS by a unique alpha identifier called a program code. The provider needs to know a recipient's program code before providing services . . . . * * * Verifying Eligibility, HMO and MediPass Introduction: Information about the recipient's eligibility and Medicaid coverage is maintained on the Florida Medicaid Management Information System (FMMIS). The system is maintained by the state Medicaid fiscal agent. The provider verifies eligibility and obtains benefit information by accessing the system. This section discusses how a provider can access the system to obtain this information. Ways to Access Recipient Information: Eligibility and benefit information are available to providers via the following: Medicaid eligibility verification terminals (MEVS) Computer software that can be added to an office computer Automated fax response Automated voice response Human operator Information Available: The following recipient eligibility information is available for all the above sources: Denture limitations Drug caps and other service limitations HMO or MediPass membership Third party insurance coverage and policy number Medicare number Medicare part A & B coverage * * * Automated Fax Response -- FaxBack: This verification method requires a fax machine and a touch tone telephone. To obtain eligibility information, the provider enters the 9-digit provider number and one of the following: 10-digit recipient Medicaid ID number; 8-digit plastic card control number; or the recipient's social security number and date of birth. A voice response message will be received giving basic eligibility status, followed immediately by a hard copy report to the provider's fax location. The hard copy fax page serves as the provider's verification of eligibility. This method is available 24 hours a day, seven days a week. If a provider needs additional information on the recipient's eligibility for the service, he can call Unisys Provider Services at 1-800-289-7799. English and Spanish-speaking operators are available. * * * Human Operator Verification: A provider can verify eligibility and determine limitation by calling Unisys Provider Services at 1- 800-289-7799, Monday through Friday, 7:00 a.m. to 6:00 p.m., eastern standard time. This phone number is on the back of the Medicaid ID card. English and Spanish- speaking operators are available. The provider gives the Unisys operator the control number on the front of the recipient's Medicaid ID card or the recipient's ten-digit Medicaid ID number and requests information as needed. Providers are limited to two inquiries per phone call. The operator will tell the provider if the recipient is Medicaid eligible on the date of service, what the recipient's ten-digit Medicaid ID number is, and if the recipient has exceeded the Medicaid coverage limitations. The operator will not give the provider an audit number; therefore the provider will not have proof of the recipient's eligibility if a discrepancy arises. Chapter 6 of the Florida Medicaid Provider Reimbursement Handbook, Non-Institutional 081, November 1996, "describe[d] the Non-Institutional 081 claim form, the time limits for submission, and how to complete and submit the form for payment." It read, in pertinent part, as follows: Purpose and Description Purpose: This handbook is intended for use by providers who serve Medicaid recipients. It explains the procedures for obtaining reimbursement for services that are billed on the Non-Institutional 081 claim form. Coverage and Limitations Handbook: This handbook must be used in conjunction with the provider's program specific Coverage and Limitations Handbook, which contains policy information about the specific procedures that Medicaid will reimburse. Providers Who Bill on the Non Institutional 081: Targeted case management providers and the home and community based services providers must complete and submit Non- Institutional 081 claim forms to receive reimbursement from Medicaid. . . . Chapter 7 of the Florida Medicaid Provider Reimbursement Handbook, Non-Institutional 081, November 1996, described "[a]dditional filing requirements," including the following: Service Authorization Requirements Home and Community-Based Services: All home and community-based services (HCBS) must be service authorized by the recipient's case manager and be included in the recipient's plan of care. Medicaid may recoup reimbursement for services that were not service authorized or authorized in the recipient's plan of care. Note: See the waiver-specific Coverage and Limitations Handbook for additional information on the plan of care. * * * Appendix D of the Florida Medicaid Provider Reimbursement Handbook, Non-Institutional 081, November 1996, contained a glossary of terms used in the handbook, which read, in pertinent part, as follows: * * * Case Manager: A case manager for Home and Community-Based Waiver services is the person who writes a recipient's plan of care and authorizes, in advance, the services that will be provided to a recipient. * * * Home and Community-Based Services Waiver: A specific program and set of services authorized under Section 1915(c) of the Social Security Act that are designed to assist recipients to avoid institutionalization. * * * Recipient: A person who is eligible to receive services under Medicaid. Appendix E of the Florida Medicaid Provider Reimbursement Handbook, Non-Institutional 081, November 1996, listed "eligibility program codes." Of the codes listed, only two, MW A and MW C, were for "home and community based services." The Florida Medicaid Aged and Disabled Waiver Provider Handbook (first published in 1993) was the "waiver specific Coverage and Limitations Handbook" referred to in the Florida Medicaid Provider Reimbursement Handbook, Non-Institutional 081, November 1996, that provided additional information about Florida's ADA "waiver" program. Chapter 10 of the Florida Medicaid Aged and Disabled Waiver Provider Handbook discussed "[p]rovider [p]articipation" in the ADA "waiver" program. It read, in pertinent part, as follows: Becoming Enrolled as a Medicaid Provider: 10.4 To become a provider of Home and Community Based Aged/Disabled Waiver services in the Medicaid program you must: not be currently suspended from Medicare or Medicaid in any state; meet requirements described in Section 10C-7.0527, F.A.C.; maintain a contract with the Area Agency on Aging (AAA) or Lead Agency with standards for participation in the Community Care for the Elderly and/or the Community Care for the Adult Disabled Programs; and Maintain full compliance with Title VI of the Civil Rights Act of 1964 and the Rehabilitation Act of 1973. To request a provider enrollment package contact the Medicaid Waiver Specialist at the Area Agency on Aging located in your area. Refer to Chapter 13, Section 13-4 for the address and telephone number of the Area Agency on Aging offices. The enrollment package includes an application and a noninstitutional professional technical agreement. Complete and forward the completed application package to the Medicaid Waiver Specialist located at your local Area Agency on Aging. The Medicaid Waiver Specialist will sign the application and forward it to Consultec.[2] The specialist's signature verifies that the provider application information is complete and the criteria for enrollment have been met. Consultec will not accept any application that has not been signed by the Medicaid Waiver Specialist. After your application is approved, Consultec will send you a Medicaid provider number and a provider handbook for the Medicaid Aged/Disabled Waiver program. If you have a Medicaid provider number and request participation in this program, your 7-digit base number will remain the same; the 2-digit suffix will be different for each program. Use your provider number to bill Medicaid. Medicaid then pays you for covered services that you furnish to Medicaid eligible waiver recipients. Chapter 11 of the Florida Medicaid Aged and Disabled Waiver Provider Handbook described the "[c]overed [s]ervices and [l]imitations" of the ADA "waiver" program. It read, in pertinent part, as follows: * * * Program Purpose: 11.3 The purpose of the Aged/Disabled Home and Community Based Services Waiver program is to promote, maintain, and restore health, or minimize the effects of illness and disability in order to delay or prevent institutionalization. These services allow persons to remain at home or in a home-like setting Covered Services: 11.4 Individuals determined eligible for this program may be entitled to the following services: Adult Day Health Care Case Management Respite Care * * * Counseling * * * General Description of Covered Services: 11.5 There are specific problems experienced by the physically disabled or elderly who are at risk of nursing home placement. Supportive services which strengthen and foster their independence allow the elderly and disabled to remain at home or in a community setting. Waiver services are defined as follows: Adult Day Health Care: Adult Day Health Care (ADHC) is an organized day program of therapeutic, social, and health activities and services designed to restore or maintain the recipient's optimal capacity for self-care. These services are provided to persons who are at least 18 years of age and who have physical or mental functional impairments. Covered services under Adult Day Health Care include: Rehabilitation Services including: physical therapy occupational therapy speech therapy. Medical screening services, emphasizing prevention and continuity of care, which include routine blood pressure checks, diabetic maintenance checks, or rehabilitation therapies not covered under the regular Medicaid program and which are provided at the site. Nursing services which include periodic evaluation, medication supervision, and supervision of self-care services directed toward activities of daily living and personal hygiene. Nutritional services which include dietary and nutritional education. Social services to help with personal and family problems. Planned group therapeutic activities which are in accordance with the goals of the recipient's individual treatment plan. Transportation to and from Adult Day Health Care services. Meal services which provide at least one meal per day of suitable quality and quantity. Case Management Services: Case management is a way to identify an individual recipient's needs, develop intermediate and long term goals, and monitor the services provided to the individual. Case management provides specialized assistance to each individual who wants and needs help to choose and obtain resources and services. Case managers coordinate the delivery of the services in the best way to meet each individual's needs. The amount of assistance is adjusted for each individual recipient. The principle is to develop each individual's capability to negotiate and obtain needed and appropriate services on his/her own behalf. Essential components of effective case management services are: screening of services needs; referring to available resources; conducting a comprehensive needs assessment; developing an individual service plan development; developing a plan of implementation; accessing resources to meet needs identified in service plan; monitoring and following up to assure continued appropriateness of the services; assessing progress toward the original goals; and reassessing recipient need and determining of ongoing service needs. Respite Care: Respite care is a demand-response service to provide supervision and companionship to physically disabled persons or infirm elderly persons for a specified period of time. Respite care may include personal care. The purpose of respite care is to relieve the primary caregiver from the stress and demand associated with providing daily care. Providing the caregiver with relief helps to maintain a healthy living environment. * * * Counseling Services: Counseling involves exploring a recipient's interests and skills, problem solving, emotional support and guidance and encouragement for adopting new behaviors, and setting of realistic goals. It also may include diagnosis and structured treatment of psychological and psychosocial problems. This service is provided by a licensed psychologist, a licensed clinical social worker, or a licensed mental health counselor. * * * Recipient Eligibility: 11.6 To become eligible for this Medicaid program an individual must meet the following eligibility criteria: be aged (65 or older); or be a disabled adult (18 to 64); be Supplemental Security Income (SSI) eligible; or meet the income and assets limits for the Institutional Care Program (ICP); meet level of care requirements as described in Section 11.7; have a plan of care executed by the case manager as described in Section 11.8 below; and have a waiver identification number assigned by the Medicaid Waiver Specialist. Level of Care Determination: 11.7 To determine if an individual is at risk of needing the care provided in an institution, a client assessment must be completed. The assessment is used to identify the individual's social resources and supports and his physical and mental ability to carry out the activities of daily living. This helps to determine the individual's functional impairment and risk of institutionalization. The case manager uses this information to develop a client- centered plan of care. The assessment procedures are: SSI eligibles must have a completed HRS Form 1055 signed by a registered nurse or medical doctor which verifies that the applicant is at risk of institutionalization. ICP eligibles must have a level of care determination provided by the Aging and Adult CARES team using the Nursing Home Level of care for Pre-Admission Screening, HRS Form 3049. For more information regarding the assessment process, please refer to the Client Assessment Manual. Plan of Care: 11.8 A plan of care is a written document which describes the service needs of a recipient and specifies the services to be provided (type), how often the service is to be provided (frequency), and how long the services will continue to be provided (duration). The purpose of the care plan is to enable the case manager and the recipient to summarize the findings of the recipient's evaluation; to identify realistic goals for the recipient; to recognize the barriers to attaining the goals; and then, to work toward removing these barriers and achieving the stated goals. It is an extension of the client assessment and identifies services required to maintain the recipient in the community, reduce the functional limitations noted in the assessment and meet other identified needs. The case manager and recipient work together to develop a plan of care. The recipient's family may help in the development of the plan of care. To assure appropriate case planning, the case manager will consult with the physician, physician's assistant, nurse, other health care providers working with the recipient, and other specialized consultants as needed. The case manager must establish a plan of care before services are rendered and Medicaid is billed. It must be signed and dated by the case manager and the recipient. The plan of care must: specify the level of care, and the needs or problems to be resolved to avoid institutionalization; specify improved or resolved problems by recording the date that services were no longer necessary and were stopped; specify the effective date for the start of in-home service; specify the type of services to be provided and who will provide them; specify the probable duration and desired frequency of service provision; be signed (certified) and dated by the case manager and recipient and, if the plan of care is still appropriate, recertified every 90 days; be updated any time the recipient's condition changes or every six months at a minimum; and be kept on file by the agency and available for review for a period of five years after the termination of services. * * * Service Limitation and Exclusions: 11.12 The plan of care must describe the services to be provided (type), how often the service is to be provided (frequency), and how long it will continue to be provided (duration). Services provided beyond the frequency and duration indicated on the care plan are not allowable. If the type, duration or frequency need to be changed, the case manager must approve the new schedule and update to the plan of care. Medicaid reimbursement is limited to necessary services. Service Authorization: 11.13 Case managers authorize only services which are on the written plan of care. Chapter 12 of the Florida Medicaid Aged and Disabled Waiver Provider Handbook contained the following discussion on "[r]estrictions on [b]illing": You are required to bill your usual and customary fee. Medicaid will pay the maximum fee, or your usual and customary fee, whichever is lower. All services must be authorized by an enrolled Medicaid aged/disabled waiver case manager and must be on the recipient's written plan of care. Petitioner is now, and has been at all times material to the instant case, licensed by AHCA to operate an adult day care center (North Pointe) in Miami-Dade County. Nadine Proctor is now, and has been at all times material to the instant case, the owner and administrator of North Pointe. Ms. Proctor is college educated. She has taken at least one graduate-level course (in public administration at Florida International University). In or around 1997, Ms. Proctor contacted the Alliance for Aging, Inc. (Alliance), by telephone and spoke with Lynn Pollack, one of the Alliance's Medicaid Waiver Specialists, about Petitioner becoming enrolled as a Medicaid provider. Ms. Proctor indicated to Ms. Pollack that she wanted Petitioner enrolled as a provider of adult day health care services to recipients in the state's ADA "waiver" program. Petitioner was "qualified" to provide these services by virtue of its being licensed to operate North Pointe as an adult day care center. Ms. Pollack explained, accurately, to Ms. Proctor "how the [ADA] 'waiver' [program] worked," including its assessment, plan of care development, and referral features (that are described above).3 She emphasized to Ms. Proctor that, to participate in the program as an adult day health care service provider, Petitioner needed, not only to enroll as a Medicaid provider and obtain (from AHCA, through its fiscal intermediary) a Medicaid provider number, but also to enter into a referral agreement with United or Miami-Dade Elderly Services. Following her telephone conversation with Ms. Proctor, Ms. Pollack mailed Ms. Proctor a Florida Medicaid Provider Enrollment Application, along with written "instructions on how to complete the application." There were directions on the application that, upon completion, it be returned to the Alliance for approval (before the completed application was sent to AHCA's fiscal intermediary). Ms. Proctor completed the application and mailed it back to the Alliance. "[T]here were errors on the application," however. Ms. Pollack informed Ms. Proctor of these errors. Ms. Proctor made several unsuccessful attempts to submit an error-free application. Finally, in June of 1997, she paid a visit to the Alliance's offices and met with Ms. Pollack in person. Ms. Pollack "explained [to Ms. Proctor] step-by-step exactly how to do the application." Ms. Pollack also "went over . . . again" with Ms. Proctor the requirements of the state's ADA "waiver" program. In so doing, she reminded Ms. Proctor that having a referral agreement with United or Miami-Dade Elderly Services was an absolute condition precedent to Petitioner's participation in the program as an adult day health care service provider. With Ms. Pollack's help, Ms. Proctor correctly filled out the Florida Medicaid Provider Enrollment Application. Ms. Proctor indicated on the application that Petitioner was seeking to become an adult day health care service provider as part of the state's ADA "waiver" program. Ms. Pollack approved the completed application on June 13, 1997. She then sent it to AHCA's fiscal intermediary, Unisys Corporation (Unisys). Unisys sent Petitioner the following letter dated August 16, 1997: Welcome to the Florida Medicaid Program. Your Florida Medicaid provider number is 6754961 00. Please use you number whenever you bill Medicaid for the following services and invoice type beginning 06/11/97. Service: HOME AND COMM BASED SVCS Invoice Type: FMMIS Non-Institutional Claim Form. The enclosed handbooks explain how to bill Medicaid and how to order additional invoices (billing) forms. We supply invoices that are unique to Medicaid at a nominal charge. An initial supply is enclosed for your convenience. If you have any questions or problems about billing matters or claims, please telephone: Unisys Corporation Fiscal Agent Contractor Toll Free 1-800-289-7799 If Unisys cannot resolve your problems, call your AHCA area Medicaid office. A list of area offices and their telephone numbers is included in your reimbursement handbook. Thank you for participating in Medicaid. AHCA also sent Petitioner a letter dated August 16, 1997. It read as follows: We are pleased that you have chosen to join the Florida Medicaid program and serve the needs of our Medicaid eligible recipients. We are dedicated to making your participation in the program straightforward and productive. Enclosed are handbooks that explain how the Medicaid program operates and how to bill for services that you have agreed to provide. We feel that your enrollment in the Florida Medicaid program is a statement that you want to make a difference in the availability and quality of health care for every Florida citizen who qualifies for Medicaid and we will always try to meet your commitment with a willingness to serve your needs. Enclosed is a sheet that contains you unique Medicaid number. Please remember to always use your number when billing Medicaid. If you encounter a problem or have a question, call Unisys Provider services at 1-800-289- 7799 or if out-of-state 1-800-955-7799. For provider enrollment questions, call 1-800- 377-8216. The Unisys phone lines are staffed especially to assist you, but after contacting them if you still have a problem, call your Medicaid area office. The telephone numbers for area Medicaid offices are listed in Appendix C of your Medicaid Provider Reimbursement Handbook. The area offices are primary sources of information concerning Medicaid policy and covered services. The success of the Florida Medicaid program is dependent primarily on providers like you who furnish services directly to recipients. Thank you for your participation and your efforts to maintain and improve the health of Florida Medicaid recipients. Ms. Proctor "never received" the handbooks referenced in Unisys' and AHCA's August 16, 1997, letters to Petitioner. A few months after her June 1997 meeting with Ms. Pollack, Ms. Proctor telephoned Ms. Pollack and angrily complained that "nobody [was] giving her any referrals" and that she was being "discriminat[ed] against."4 Ms. Pollack asked Ms. Proctor if she had, on behalf of Petitioner, executed a referral agreement. Ms. Proctor responded that she had not because "the process took too long and [United and Miami-Dade Elderly Services] were giving her the runaround." Ms. Pollack told Ms. Proctor, as she had done previously, that Petitioner was "not going to get any referrals" unless it had a referral agreement with United or Miami-Dade Elderly Services. John Saxon, who was "working for" a Florida state senator, subsequently telephoned Ms. Pollack and indicated that the senator "wanted to find out what was going on" with Ms. Proctor. Ms. Pollack "explained the situation to [Mr. Saxon]" and "how the [ADA} 'waiver' program worked," pointing out, among other things, that Petitioner "need[ed] to have [referral] agreements [with United and Miami-Dade Elderly Services] in order to get referrals" from them. Mr. Saxon advised Ms. Pollack that "he would make sure that [Ms. Proctor] underst[ood] [this]." Thereafter, Mr. Saxon telephoned Ms. Pollack again and "assured [her] that [Ms. Proctor] understood." On or about December 17, 1997, Ms. Proctor sent Unisys a check in the amount of $30.00 to obtain the handbooks referenced in Unisys' and AHCA's August 16, 1997, letters to Petitioner. The check was received and cashed. In or around April of 1998, Ms. Proctor asked for and was granted a meeting with the Alliance's executive director, John Stokesberry. Ms. Proctor's pastor and Mr. Saxon accompanied Ms. Proctor to the meeting. Linda Levin, one of Mr. Stokesberry's subordinates, was also in attendance at the meeting. As she had done during her last telephone conversation with Ms. Pollack, Ms. Proctor complained to Mr. Stokesberry at the meeting that "no one was referring clients to her" and therefore "she wasn't receiving any [Medicaid] money." She wanted to know why there had been no referrals made. Mr. Stokesberry told Ms. Proctor, in response to her inquiry, that the Alliance was not involved in the referral process and that any questions she had regarding lack of referrals should be addressed to United and Miami-Dade Elderly Services. Mr. Stokesberry, during the meeting, "made it very clear" that Ms. Proctor "could not bill [Medicaid] if she did not have referrals" from United or Miami-Dade Elderly Services, an advisement Ms. Levin echoed. Ms. Levin added that Ms. Proctor could not receive any referrals if she did not have a referral agreement with one of these case management agencies. What Ms. Proctor had told Mr. Stokesberry at the meeting about her situation was only partially true. Petitioner indeed had not received any referrals from United or Miami-Dade Elderly Services; however, notwithstanding the absence of such referrals, Petitioner had been submitting Medicaid claims and receiving "[Medicaid] money." Petitioner continued to bill Medicaid and be reimbursed following the meeting. Petitioner received payments totaling $673,754.50 for Medicaid claims it had submitted for ADA "waiver" services assertedly rendered from June 12, 1997, to August 28, 1998 (Paid Claims). These Paid Claims were processed by Unisys. At the request of DOEA, an Alliance staff member reviewed one of these Paid Claims (that was randomly selected) and determined that it was not "an appropriate billing." A more extensive post-payment review of the Paid Claims was then conducted. By letter dated September 11, 1998, DOEA's Inspector General, Lisa Milton, advised the Chief of AHCA's Bureau of Medicaid Program Integrity, Edward Turner, of the results of this post-payment review. By memorandum dated September 16, 1998, Mr. Turner requested the Chief of AHCA's Bureau of Medicaid Contract Management to "have Unisys pend [Petitioner's] claims for prepayment review." By letter dated September 17, 1998, AHCA's Bureau of Medicaid Contract Management asked Unisys, until further notice, to "pend for prepayment review any claim" Petitioner submitted, a request with which Unisys complied. On September 22, 1998, Costas Miskis, Esquire, an attorney with AHCA, sent the following letter to Ms. Proctor: The Florida Department of Elder Affairs has advised the Office of Medicaid Program Integrity ("MPI") that certain claims totaling $673,754.50 were improperly submitted under your Medicaid Provider number 6754961-00 for the time period beginning January 1, 1998, though and including September 16, 1998. The information received indicates that the services were not provided pursuant to a written plan of care developed by a case management agency which meets certain standards, and the recipients were not pre- screened as meeting disability criteria as required by the Social Security Act, Federal Regulations, and Aged/Disabled Medicaid Waiver Program. Given this information, the agency is compelled to seek a resolution of this matter. In an effort to expedite and simplify this process, we will extend to you the opportunity to settle this matter. Any settlement at this juncture will save both you and this office the burden and expense of litigation, as well as minimize the public airing with regard to any improper claims. The final terms of any settlement will be incorporated into a written agreement, and will effectively bring this matter to a close. Please be advised however, that in resolving situations involving false Medicaid claims, this agency may seek interest, investigative costs, or penalties as part of any negotiated settlement. Finally, please be advised that should we be unable to settle this matter, this office will consider proceeding under the False Claims Act (section 68.081, Florida Statutes, et seq.). Successful prosecution of such a case for any false claims submitted on or after July 1, 1994, would result in full restitution of the moneys in question plus the award of treble damages (triple the amount paid) together with a mandatory minimum $5,000 penalty per false claim- the maximum penalty per false claim is $10,000. If an agreement is reached between the appropriate parties, however, this agency would forego filing an action. Should you wish to discuss settlement of this matter, please call me at . . . by October 4, 1998. If I do not hear from you, I will assume that you are not interested in discussing this matter and will pursue any and all remedies available. A settlement was not reached. Petitioner continued to bill Medicaid, but was not reimbursed. Petitioner submitted Medicaid claims totaling $1,135,932.96 for ADA "waiver" services assertedly rendered from June 12, 1998, to February 29, 2000, which have not been paid (Pended Claims). The record evidence is insufficient to establish that any AHCA employee or agent, including Mr. Miskis, ever guaranteed Ms. Proctor that these Pended Claims would be paid. None of the Paid or Pended Claims was for any service for which Petitioner was entitled to be reimbursed by Medicaid, as Ms. Proctor knew or should have known. At all times material to the instant case, each of the individuals identified as recipients in the Paid and Pended Claims was Medicaid-eligible, but none of them had undergone a CARES assessment and been deemed eligible for ADA "waiver" services5; none of them had a plan of care; and none of them had been referred to Petitioner by United or Miami-Dade Elderly Services to receive the services billed for. Indeed, Petitioner did not even have a referral agreement with either of these case management agencies. Furthermore, a substantial number of the Paid and Pending Claims were for ADA "waiver" services other than adult day health care (including case management, counseling, respite care, and risk reduction) that Petitioner, as an adult day health care provider, was not authorized to bill for. Ms. Proctor used the FaxBack service offered by Unisys before billing Medicaid. The record evidence is insufficient to establish that Unisys, in responding to Ms. Proctor's inquiries via the FaxBack service, ever advised her that any of the individuals she inquired about were eligible to receive ADA "waiver" services from Petitioner.6 In any event, even if Unisys had provided Ms. Proctor with such an advisement, given what she had been told during her dealings with Alliance staff concerning the requirements of the ADA "waiver" program, it would have been unreasonable for her to have blindly relied on this information without making any further inquiry. On July 18, 2001, AHCA issued its Final Agency Audit Report,7 finding that the monies totaling $673,754.50 Petitioner received for the Paid Claims constituted overpayments Petitioner had to return to AHCA and that the Pended Claims were for services "not covered by Medicaid" and thus should not be paid.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that AHCA enter a final order finding that the monies, totaling $673,754.50, Petitioner received for the Paid Claims constituted overpayments that Petitioner must return to AHCA and that the Pended Claims were for services "not covered by Medicaid" and should therefore be denied. DONE AND ENTERED this 22nd day of July, 2004, in Tallahassee, Leon County, Florida. STUART M. LERNER 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 22nd day of July, 2004.
The Issue Whether Petitioner should continue to receive services of incontinence supplies from Respondent.
Findings Of Fact William suffers from Spina Bifida (SB), having been born with SB, and is confined to a wheelchair. Among other things, SB affects his bladder and urinary tract system. William is now 17 years of age. William must catheterize each day. If he does not, bladder infections will occur, which in turn will lead to kidney problems. William is in need of diapers, which assist in preventing infections. As a result of SB, William also suffers from incontinence. He is in need of diapers. In addition to helping his medical condition, the diapers help to maintain William’s self-esteem when he is around his classmates and others. There is no dispute that William has a disability, that he needs diapers, and that he is eligible for the service. As of November 1, 2001, the Department terminated the services of providing diapers to William because there were “insufficient funds with which to continue funding the service,” with such service being “funded solely through the Department’s Individual Family Supports [IFS] or General Revenue.” The Department provided written notification of the termination by letter dated March 15, 2002. Ms. St. Pierre was orally notified by William's Support Coordinator on November 15, 2001; shortly thereafter, a letter was to be sent to Ms. St. Pierre from the Department explaining the reason for the termination. No evidence was presented to show that the letter was sent. IFS is funded by general revenue dollars. The providing of William's service--providing diapers-- is through general revenue. William is continuing to receive the service pending the outcome of the instant case. Only recently, in or around July 2002, Ms. St. Pierre became re-employed after having been unemployed for approximately three months. The focus of the instant matter is not on William’s eligibility for services but on the Department’s limited funds and on the spending-prioritization policies adopted by the Department and approved by the Florida Legislature. One of the documents that the Department relies upon for the termination of William’s service is the “Developmental Disabilities Home and Community Based Services Waiver Fiscal Year 2001-2002 Spending Plan Instructions” (Spending Plan). The Spending Plan states in pertinent part: By June 30, 2001, the Department of Children and Families expects to serve 25,002 persons through the Developmental Disabilities Home and Community Based Services Waiver (Waiver). . . . In order to be able to serve the greatest number of persons possible within the legislative appropriation for Waiver services, the Department will implement a number of strategies to ensure that appropriate Waiver services are provided in the most cost-effective manner. . . . * * * Spending Plan priority for FY 01-02: Remaining persons from July 1, 1999 waiting list--350 persons who will be served during July and August 2001. Cramer v. Bush class members--estimated 20 persons who will be served upon request, throughout the fiscal year. Persons who are determined to be [in] crisis who were not on the original waiting list--estimated at 10 persons per month and to be served throughout the fiscal year. Persons discharged from the Mentally Retarded Defendant Program. Persons who have become clients since July 1, 1999, in date order (new waiting list)--projected to be approximately 6,284 persons remaining to be phased in between March 2002 and June 2002, subject to vacancies on the Waiver and available funding. The list of such individuals will be developed at the central office; persons will be served in date order, based on the date the individual became a client. In order to serve the estimated 6,774 individuals who are projected to want and need Waiver services during FY 01-02, enrollment on the Waiver will be phased in as described above. Compliance with the Spending Plan Compliance with the approved Spending Plan for FY 2001-2002 is required of all Department employees. The Central Office will monitor all enrollment activity and notify districts when an individual has been enrolled on the Waiver, and to proceed with the provision of services. The Central Office of the Developmental Disabilities Program will review and process District requests for assignment of a Waiver slot, based on the District's "crisis" determination. Upon completion of the Central Office review, where the Central Office has confirmed a determination of "crisis", the District will be notified when the individual is enrolled on the Waiver, and to proceed with the provision of services. The use of non-Waiver funds (Individual and Family Supports (IFS) budget category) to fund services for additional persons who are awaiting enrollment on the Waiver is prohibited. Personal Care Assistance Services As required by Medicaid regulations, the Department must require the use of regular Medicaid State Plan services when the individual is eligible to receive the services through the Medicaid State Plan. Provision of Waiver services must also comply with federally approved service definitions. Developmental Disabilities currently provides personal care assistance services to 1,232 children. Some of these children may be eligible under regular Medicaid EPSDT (Early, Periodic Screening, Diagnosis & Treatment) coverage. Medicaid state plan covers Personal Care Assistance for children who are eligible to receive nursing services. Children eligible for personal care assistance under Medicaid state plan must receive the service through this funding. [The ensuing five paragraphs continue to discuss children, the Medicaid state plan, and the Waiver.] New requests for personal care assistance will be assessed first to determine whether [the] Medicaid state plan is appropriate. If this is not appropriate, the need for coverage under the Waiver will be made according to the federally approved service description. * * * Require Use of Waiver Funding, where available Because of limited funding and the need to maximize the use of General Revenue funds by obtaining federally matching funds wherever possible, Individual and Family Supports (IFS) funding is no longer available for persons who are eligible to receive Waiver-funded services, but who have refused services funded through the Waiver. Some people who are eligible have rejected services funded through the Waiver. The Department will offer Waiver services to those individuals. For those who continue to refuse services funded through the Waiver, IFS expenditures will be discontinued due to lack of funding, with appropriate due process notice. Maximize Federal Funding Similarly, effective immediately, all covered Waiver services must be provided through Waiver funding. The purchase of Waiver billable services through the IFS budget category is no longer allowable, unless the Central Office has approved an exception. As to the Spending Plan, as it relates to spending at the local level, the Department's local districts submit their needs to the Department and the Department determines the allocations. The Department determines how the dollars will be spent. The Department also relies upon the following document: "Developmental Disabilities Program Fiscal Year 2001-2002 Spending Plan, Interim Notice To Individuals Seeking Services From The Florida Developmental Disabilities Program"--Revised September 2001--hereinafter, Interim Notice. The Interim Notice addresses the Waiver program and provides in pertinent part: The Agency for Health Care Administration, the State Medicaid Agency, and the Department of Children and Family Services have requested permission from the Department of Health and Human Services, Health Care Financing Administration (HCFA), to add 450 additional persons to the Florida Developmental Services Home and Community- Based Services Waiver (Waiver) between now and March 1, 2002. At this point, with the funding appropriated by the Florida Legislature for fiscal year 2001-2002, the Department anticipates that it will enroll no more than 450 persons on the Waiver before March 1, 2002. The persons who will be enrolled on the Waiver out of these available slots or vacancies are as follows: No more than 350 persons who became clients of the Developmental Disabilities Program prior to July 1, 1999, and who wish to be enrolled on the Waiver. No more than 80 persons who have become clients of the Developmental Disabilities Program after July 1, 1999, who are determined to be in a life-threatening crisis. . . . All individuals currently residing in private ICF/DDs who, after choice counseling, request community-based placement and are determined by the state's treatment professionals to be appropriate for community-based placement. You may have heard that the Florida Legislature appropriated $78,000,000 in additional funding to community-based services individuals with developmental disabilities. However, only about $20,000,000 of this appropriation will be available to enroll new individuals on the Waiver. About $58,000,000 of the appropriated amount for community-based services for fiscal year 2001-2002 is needed to continue funding services for individuals who were enrolled on the Waiver last year. . . . William's mother did not receive a copy of the Interim Notice. Additionally, the Department relies upon the following document: "Developmental Services Home and Community-Based Services Waiver Services Directory." This document too addresses the Waiver program. Further, the Department relies upon two legislative conference reports for fiscal year 1999-2000 and 2000-2001. The two conference reports are instructive. The "Conference Report on Senate Bill 2500: General Appropriations for 1999-2000" provides in pertinent part: From the funds in Specific Appropriation 381, $20,000,000 in recurring Tobacco Settlement Trust Fund and $25,259,108 in Operations and Maintenance Trust Funds are provided to meet the needs of developmental services participants based on the individuals' most recent support plans. This lump sum is a continuation of the 1998-99 appropriation based on a redesigned system. Priorities for this funding, in order, are as follows: 1) Transitions for those requesting transfers from Intermediate Care Facilities for the Developmentally Disabled (ECF/DD) institutional placements into Home and Community Based Waiver residential placements, and 2) Meeting the needs of identified under-served participants in the Home and Community Based Waiver Services . . . A budget amendment for the release of all or a portion of this lump sum is contingent upon accurately reporting the needs of those persons who are under-served waiver participants to the legislature. The "Conference Report on House Bill 2500: General Appropriations Act FY 2000-2001" provides in pertinent part: Funds in Specific Appropriation 344 and 339 are provided to meet the needs of developmental services Medicaid Waiver participants based on the individuals' most recent support plans. Priorities for this funding, in order, are as follows: 1) Transitions for those requesting transfers from Intermediate Care Facilities for the Developmentally Disabled (ECF/DD) institutional placements into Home and Community Based Waiver residential placements or other community waiver services, and 2) Meeting the needs of identified under served participants in the Home and Community Based Waiver Services . . . The Medicaid waiver services mix must be fully met for all eligible participants before funds are transferred to non-Medicaid covered services with the exception of room and board payment. . . . No conference report for the fiscal year 2001-2002 was presented by the Department. The Department relies upon several other documents that pertain to the Developmental Services Home and Community-Based Services waiver. The testimony of the Department's witness, as to the Department's funding, focused primarily on the Waiver program, not general revenue. The focus of Department's documents is the Waiver program, not general revenue. The Department's evidence of lack of general revenue funds is insufficient.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Children and Family Services enter a final order reinstating the providing of diaper services to William Alaire. DONE AND ENTERED this 26th day of November, 2002, in Tallahassee, Leon County, Florida. ERROL H. POWELL 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 26th day of November, 2002. COPIES FURNISHED: Wendy St. Pierre Qualified Representative 1295 Savoyard Way Royal Palm Beach, Florida 33411 Colleen Farnsworth, Esquire Department of Children and Family Services 111 South Sapodilla Avenue, Suite 201 West Palm Beach, Florida 33401 Paul F. Flounlacker, Jr., Agency Clerk Department of Children and Family Services 1317 Winewood Boulevard Building 2, Room 204B Tallahassee, Florida 32399-0700 Josie Tomayo, General Counsel Department of Children and Family Services 1317 Winewood Boulevard Building 2, Room 204 Tallahassee, Florida 32399-0700
The Issue The issues in the case are whether Lynk Services, Inc. (Respondent), violated applicable provisions of the Florida Administrative Code, and, if so, what penalty should be imposed.
Findings Of Fact The Florida Medicaid Developmental Disabilities Waiver Program (Waiver) provides approved health and personal services to qualified recipients. The Agency for Persons with Disabilities (APD) administers the Waiver and conducts audits of participating health care providers. The time period relevant to this case (the "audit period") was April 1, 2006, through June 30, 2006. At all times material to this case, the Respondent was the Waiver Support Coordinator (WSC) for Waiver recipient R.M. At all times material to this case, Premier Health Care (Premier) was the personal care assistance provider assigned by the Respondent to R.M. On March 31, 2006, the Respondent filed with APD, an authorization for personal care services to be provided to R.M. by Premier for the one-year period commencing on April 1, 2006. Premier filed claims for the provision of personal care service to R.M. during at least part of the audit period. The Florida Medicaid program paid the claims. Premier did not provide personal care assistance to R.M. during the audit period. The only service provided to R.M. during the audit period by a Premier employee was supervision of oxygen usage, which is not a personal care service. The Respondent did not file any request to amend the service authorization to reflect the services actually provided by Premier to R.M. An overpayment of $2,006.00 occurred, based on payment by APD for personal care services that were not provided to R.M.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency for Health Care Administration enter a final order stating that the Respondent violated applicable requirements as set forth herein and assessing a fine of $1,000 and requiring the submission of an acceptable corrective action plan. DONE AND ENTERED this 6th day of April, 2010, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 6th day of April, 2010. COPIES FURNISHED: Lynne Ballou, CEO, WSC Lynk Services, Inc. 2189 Cleveland Street, Suite 207 Clearwater, Florida 33765 Andrew T. Sheeran, Esquire Agency for Health Care Administration Fort Knox Building, Mail Stop 3 2727 Mahan Drive, Suite 3431 Tallahassee, Florida 32308 Richard J. Shoop, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Mail Station 3 Tallahassee, Florida 32308 Justin Senior, General Counsel Agency for Health Care Administration Fort Knox Building, Suite 3431 2727 Mahan Drive, Mail Station 3 Tallahassee, Florida 32308 Thomas W. Arnold, Secretary Agency for Health Care Administration Fort Knox Building, Suite 3116 2727 Mahan Drive Tallahassee, Florida 32308
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.
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 G05 day of Wark . 2014, in Tallahassee, Florida. : Aa Lhe 7 Agency for Health Care Administration Agency for Health Care Administration v. Gulfside Regional Hospice, Inc. C.1. No.: 13-0812-000; Case No.: 13-1571MPI Final Order Page 1 of 3 Filed March 27, 2014 4:51 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: Karl D. Acuff, Esquire 1615 Village Square Boulevard, Suite 2 Tallahassee, Florida 32309-2770 Telephone: (850) 671-2644 Fax: (850) 671-2732 Email: kd_acuff@floridacourts.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) Bureau of Health Quality Assurance 2727 Mahan Drive, Mail Stop 9 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) Eric W. Miller, Inspector General Medicaid Program Integrity 2727 Mahan Drive Building 3, Mail Station 4 Tallahassee, Florida 32308 (Via Electronic Mail) Division of Administrative Hearings The Desoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (Via Electronic Mail) Agency for Health Care Administration v. Gulfside Regional Hospice, Inc. C.1. No.: 13-0812-000; Case No.: 13-1571MPI 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 th day of J tore , 2014. Richard Shoop, Esquire Agency Clerk State of Florida Agency for Health Care Administration 2727 Mahan Drive, Building 43 Tallahassee, Florida 32308-5403 (850) 412-3630 Agency for Health Care Administration v. Gulfside Regional Hospice, Inc. C.1, No.: 13-0812-000; Case No.: 13-1571MPI Final Order Page 3 of 3 STATE OF FLORIDA AGENCY FOR HEALTH CARE ADMINISTRATION STATE OF FLORIDA, AGENCY FOR HEALTH CARE ADMINISTRATION, Petitioner, Case No.: 13-1571MP1 vs. CL. No.: 13-0812-000 Provider No.: 087570800 License No.: 5005096 NPI No.: 1144328881 GULFSIDE REGIONAL HOSPICE, INC., Respondent. / SETTLEMENT AGREEMENT Petitioner, the STATE OF FLORIDA, AGENCY FOR HEALTH CARE ADMINISTRATION, (“AHCA” or “Agency” or “Petitioner), and Respondent, GULFSIDE REGIONAL HOSPICE, INC., (“PROVIDER”), by and through the undersigned, hereby stipulate and agree as follows: 1. The parties enter into this agreement for the purpose of memorializing the resolution to this matter. 2. PROVIDER is a Medicaid provider in the State of Florida, provider number 087570800, and was a provider during the audit period. 3. In its Final Audit Report, dated March 18, 2013, the Agency notified PROVIDER that a review of Medicaid claims performed by Medicaid Program Integrity (“MPI”), Office of the AHCA Inspector General, during the period of January 1, 2008, through December 31, 2011, indicated that certain claims, in whole or in part, were inappropriately paid by Medicaid. The Agency for Health Care Administration v, Gulfside Regional Hospice, Inc. (C.1. No.: 13-0812-000) Settlement Agreement Page 1 of 7 Agency sought repayment of this overpayment, in the amount of forty-four thousand, eight hundred seventy dollars and thirty-five cents ($44,870.35). Additionally, the Agency applied sanctions in accordance with Sections 409.913(15), (16), and (17) Florida Statutes, and Rule 59G-9.070(7)(e) Florida Administrative Code. Specifically, the Agency assessed the following sanctions against PROVIDER: a fine in the amount of eight thousand, nine hundred seventy- four dollars and seven cents ($8,974.07) and costs in the amount of fifty-four dollars and sixteen cents ($54.16). The total amount due was fifty-three thousand, eight hundred ninety-eight dollars and fifty-eight cents ($53,898.58). 4. In response to the audit report dated March 18, 2013, PROVIDER filed a Petition for Formal Administrative Hearing. 5. Subsequent to the original audit that took place in this matter, the Agency agreed to relinquish the fine. The overpayment remains in the amount of forty-four thousand, eight hundred seventy dollars and thirty-five cents ($44,870.35). Additionally, the Agency assessed the following against the PROVIDER: costs in the amount of fifty-four dollars and sixteen cents ($54.16) pursuant to Section 409.913(23)(a), Florida Statutes. The total amount due is forty-four thousand, nine hundred twenty-four dollars and fifty-one cents ($44,924.51). 6. In order to resolve this matter without further administrative proceedings, PROVIDER and AHCA agree as follows: (1) | AHCA agrees to accept the payment set forth herein in settlement of the overpayment, fine, and costs arising from the above-referenced audit. Agency for Health Care Administration v. Gulfside Regional Hospice, Inc. (C.1. No.: 13-0812-000) Settlement Agreement Page 2 of 7 (2) Within thirty (30) days from the date of the execution of a Final Order adopting this Settlement Agreement, PROVIDER agrees to pay the Agency the sum of forty-four thousand, nine hundred twenty-four dollars and fifty-one cents ($44,924.51). (3) The amount due will be offset by any amount already received by the Agency in this matter. (4) | PROVIDER and AHCA agree that such payment as set forth above will resolve and settle this case completely and release both parties from all liabilities arising from the findings relating to the claims determined to have been overpaid in the audit referenced as C.1. Number 13-0812-000. (5) PROVIDER agrees that it will not rebill the Medicaid Program in any manner for claims that were not covered by Medicaid, which are the subject of the audit in this case. Payment shall be made to: AGENCY FOR HEALTH CARE ADMINISTRATION Medicaid Accounts Receivable 2727 Mahan Drive M.S. #14 Tallahassee, Florida 32308-5403 7. Payment shall clearly indicate it is pursuant to a settlement agreement and shall reference the audit number. 8. Overpayments owed to the Agency bear interest at the rate of 10 percent per year from the date of determination of the overpayment by the Agency; and payment arrangements must be made at the conclusion of legal proceedings, pursuant to Section 409.913(25)(c), Florida Statutes. Agency for Health Care Administration v. Gulfside Regional Hospice, inc. (C1. No.: 13-0812-000) Settlement Agreement Page 3 of 7 9. PROVIDER agrees that failure to pay any monies due and owing under the terms of this Agreement shall constitute PROVIDER’S authorization for the Agency, without further notice, to withhold the total remaining amount due under the terms of this agreement from any monies due and owing to PROVIDER for any Medicaid claims. 10. | AHCA reserves the right to enforce this Agreement under the laws of the State of Florida, the Rules of the Medicaid Program, and all other applicable rules and regulations. 11. This settlement does not constitute an admission of wrongdoing or error by either party with respect to this case or any other matter. 12. The signatories to this Agreement, acting in a representative capacity, represent that they are duly authorized to enter into this Agreement on behalf of the respective parties. 13. This Settlement Agreement shall be construed in accordance with the provisions of the laws of Florida. 14. Venue for any action arising from this Settlement Agreement shall be in Leon County, Florida. 15. 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. 16. 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 Agency for Health Care Administration v. Gulfside Regional Hospice, Inc. (C.I. No: 13-0812-000) Settlement Agreement Page 4 of 7 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. 17, | PROVIDER expressly waives in this matter its right to any hearing pursuant to sections 120.569 or 120.57, Florida Statutes, the making of findings of fact and conclusions of law by the Agency, and all further and other proceedings to which it may be entitled by law or rules of the Agency regarding this proceeding and any and all issues raised herein. PROVIDER further agrees that it shall not challenge or contest any Final Order entered in this matter which is consistent with the terms of this settlement agreement in any forum now or in the future available to it, including the right to any administrative proceeding, circuit or federal court action or any appeal. 18. | 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 10, 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. 19. | This Agreement is and shall be deemed jointly drafted and written by all parties to it and shall not be construed or interpreted against the party originating or preparing it. 20. To the extent that any provision of this Agreement is prohibited by law for any reason, such provision shall be effective to the extent not so prohibited, and such prohibition shall not affect any other provision of this Agreement. 21. This Agreement shall inure to the benefit of and be binding on cach party’s successors, assigns, heirs, administrators, representatives and trustees. Agency for Health Care Administration v. Gulfside Regional Hospice, Inc. (C.1. No.: 13-0812-000) Settlement Agreement Page 5 of 7 22. All times stated herein are of the essence of this Agreement. 23. This Agreement shall be in full force and effect upon execution by the respective parties in counterpart. 24. The parties agree to bear their own attorney’s fees and costs, if any. THE REMAINDER OF THIS PAGE IS INTENTIONALLY BLANK. Agency for Health Care Administration v. Gulfside Regional Hospice, Inc. (C.L No.: 13-0812-000) Settlement Agreement Page 6 of 7 GULFSIDE REGIONAL HOSPICE, INC. Yemf ¢ § Provider’s Representative KZ Couns. rovider STATE OF FLORIDA, AGENCY FOR HEALTH CARE ADMINISTRATION 2727 Mahan Drive, Mail Stop #3 Tallahassee, Florida 32308-5403 tuakt Williams General Counsel Kron Ow Kim Kellum Chief Medicaid Counsel ws ater bh: A aden Tracie L. Hardin Assistant General Counsel Dated: U/r ¥ , 2014 Dated: 2; 28 214 Dated: 2014 Dated: Ss 20 , 2014 F Dated: , 2014 Dated: ,2014 i Agency for Health Care Administration y. Gulfside Regional Hospice, Inc. (C.1. No.: 13-0812-000) Settlement Agreement Page 7 of 7 FLORIDA AGENCY FOR HEALTH CARE ADMINISTRATION RICK SCOTT a ELIZABETH DUDEK GOVERNOR Better Health Care for all Floridians SECRETARY FEDERAL EXPRESS MAIL No.: 8027 0367 2785 March 18, 2013 Provider No: 087570800 NPINo: 1144328881 License No.: 5005096 GULFSIDE REGIONAL HOSPICE, INC. 6117 TROUBLE CREEK RD NEW PORT RICHEY, FL 34653-5240 In Reply Refer to FINAL AUDIT REPORT C.I.No.: 13-0812-000 Dear Provider: The Agency for Health Care Administration (Agency), Office of Inspector General, Bureau of Medicaid Program Integrity, has completed a review of claims for Medicaid reimbursement for dates of service during the period January 1, 2008 through December 31, 2011. A preliminary audit report dated January 18, 2013 was sent to you indicating that we had determined you were overpaid $44,870.35. Since no documentation was produced to refute these billings, all the claims are considered overpayments. We have determined that you were overpaid $44,870.35 for services that in whole or in part are not covered by Medicaid. A fine of $8,974.07 has been applied. The cost assessed for this audit is $54.16. The total amount due is $53,898.58. Be advised of the following: (1) In accordance with Sections 409.913(15), (16), and (17), Florida Statutes (F.S.), and Rule 59G-9.070, Florida Administrative Code (F.A.C.), the Agency shall apply sanctions for violations of federal and state laws, including Medicaid policy. This letter shall serve as notice of the following sanction(s): e A fine of $8,974.07 for violation(s) of Rule Section 59G-9.070(7) (e), F.A.C. (2) Pursuant to Section 409.913(23) (a), F.S., the Agency is entitled to recover all investigative, legal, and expert witness costs. 2727 Mahan Drive, MS# 6 Tallahassee, Florida 32308 Visit AHCA online at http://ahca.myfiorida.com Nursing Home Diversion Waiver — Fee for Service Match Page 2 The Medicaid program is authorized by Title XIX of the Social Security Act and Title 42 of the Code of Federal Regulations. The Florida Medicaid Program is authorized by Chapter 409, F.S., and Chapter 59G, F.A.C. This review and the determination of overpayment were made in accordance with the provisions of Section 409.913, F.S. In determining the appropriateness of Medicaid payment pursuant to Medicaid policy, the Medicaid program utilizes procedure codes, descriptions, policies, limitations and requirements found in the Medicaid provider handbooks and Section 409.913, F.S. In applying for Medicaid reimbursement, providers are required to follow the guidelines set forth in the applicable rules and Medicaid fee schedules, as promulgated in the Medicaid policy handbooks (in accordance with Chapter 59G, F.A.C.), billing bulletins, and the Medicaid provider agreement. Medicaid cannot pay for services that do not meet these guidelines. Below is a discussion of the particular guidelines related to the review of your claims, and an explanation of why these claims do not meet Medicaid requirements. The audit work papers are attached, listing the claims that are affected by this determination. REVIEW DETERMINATION(S) A Medicaid Provider is required to comply with Medicaid policy requirements (e.g. laws, rules, regulations, handbooks, policy). These requirements include, but are not limited to, providing goods and services in accordance with provisions of Medicaid policy and retaining medical, financial, and business records pertaining to the goods and services furnished. This review included a review of your claims reimbursed to you by Medicaid for goods and services to determine compliance with Medicaid policy. Payments for goods or services that are not documented and/or not billed in accordance to Medicaid policy are deemed to be overpayments. Our review has determined that you have failed to comply with Medicaid policy as outlined below. e Medicaid fee-for-service payments have been identified for recipients while they were enrolled in the Medicaid Nursing Home Diversion Waiver Program. Medicaid providers are required to verify Medicaid recipient eligibility prior to rendering Medicaid services. The fee-for-service payments, shown on the attached work papers, were for services that were to be covered by the recipient’s Nursing Home Diversion Waiver Provider. The total amount reimbursed to you for these fee-for-service payments has been identified as an overpayment. If you are currently involved in a bankruptcy, you should notify your attorney immediately and provide a copy of this letter for them. Please advise your attorney that we need the following information immediately: (1) the date of filing of the bankruptcy petition; (2) the case number; (3) the court name and the division in which the petition was filed (e.g., Northern District of Florida, Tallahassee Division); and, (4) the name, address, and telephone number of your attorney. If you are not in bankruptcy and you concur with our findings, remit by certified check the total amount reflected on page one, paragraph one, of this letter which includes the overpayment amount as well as any fines imposed and assessed costs. 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) 412-3901. To ensure proper credit, be certain you legibly record on your check your Medicaid provider number and the C.I. number listed on the first page of this audit report. Please mail payment to: Nursing Home Diversion Waiver — Fee for Service Match Page 3 Medicaid Accounts Receivable - MS # 14 Agency for Health Care Administration 2727 Mahan Drive Bldg. 2, Ste. 200 Tallahassee, FL 32308 Pursuant to section 409.913(25)(d), F.S., the Agency may collect money owed by all means allowable by law, including, but not limited to, exercising the option to collect money from Medicare that is payable to the provider. Pursuant to section 409.913(27), F.S., if within 30 days following this notice you have not either repaid the alleged overpayment amount or entered into a satisfactory repayment agreement with the Agency, your Medicaid reimbursements will be withheld; they will continue to be withheld, even during the pendency of an administrative hearing, until such time as the overpayment amount is satisfied. Pursuant to section 409.913(30), F.S., the Agency shall terminate your participation in the Medicaid program if you fail to repay an overpayment or enter into a satisfactory repayment agreement with the Agency, within 35 days after the date of a final order which is no longer subject to further appeal. Pursuant to sections 409.913(15)(q) and 409.913(25)(c), F.S., a provider that does not adhere to the terms of a repayment agreement is subject to termination from the Medicaid program. Finally, failure to comply with all sanctions applied or due dates may result in additional sanctions being imposed. You have the right to request a formal or informal hearing pursuant to Section 120.569, F.S. If a 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: Sheri Creel, Auditor, Agency for Health Care Administration, Medicaid Program Integrity, 2727 Mahan Drive, Mail Stop #6, Tallahassee, Florida 32308-5403, telephone (850) 412-4600, facsimile (850) 410-1972. Sincerely, Pamela Fante Program Administrator Office of Inspector General Medicaid Program Integrity PF/SC/SG Enclosure(s) Copies furnished to: Finance & Accounting Health Quality Assurance (Interoffice mail) (E-mail) Nursing Home Diversion Waiver — Fee for Service Match Page 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 }20.573, 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 Sater 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 Phone: (850) 412-3630 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; 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 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 rules and statutes which entitle you to relief; For a request for formal hearing, whether you request mediation, if it is available; 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. Nursing Home Diversion Waiver — Fee for Service Match Page 5 If you are in agreement with this audit and wish to make payment, please return this form along with your check. 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 GULFSIDE REGIONAL HOSPICE, INC. Provider ID 087570800 MPI Case Number 13-0812-000 Overpayment Amount $ 44,870.35 Fine Amount $ 8,974.07 Costs Assessed L $ 54.16 Total Amount Due $ 53,898.58 Check Number Payment for Medicaid Program Integrity Audit
Conclusions Having reviewed the administrative complaint dated August 17, 2009, attached hereto and incorporated herein (Exhibit 1), and all other matters of record, the Agency for Health Care Administration ("Agency") has entered into a Settlement Agreement (Exhibit 2) with the other party to these proceedings, and being otherwise well-advised in the premises, finds and concludes as follows: ORDERED: The attached Settlement Agreement is approved and adopted as part of this Final Order, and the parties are directed to comply with the terms of the Settlement Agreement. Filed February 12, 2010 12:46 PM Division of Administrative Hearings. Upon full execution of this Agreement, the parties agree to the following: The administrative complaint is deemed superseded by this Settlement Agreement. The Petitioner's request for a formal administrative hearing is withdrawn. Respondent will pay a fine of $500.00 for violating Rule 59A-8.003(10)(c), Florida Administrative Code. This fine is due and payable within thirty (30) days of the entry of the Final Order. A check should be made payable to the "Agency for Health Care Administration." The check, along with a reference to this case number, should be sent directly to: Agency for Health Care Administration Office of Finance and Accounting Revenue Management Unit 2727 Mahan Drive, MS # 14 Tallahassee, Florida 32308 Unpaid amounts pursuant to this Order will be subject to statutory interest and may be collected by all methods legally available. Respondent's petition for a formal administrative proceeding is hereby dismissed. Each party shall bear its own costs and attorney's fees. The above-styled case is hereby closed. DONE and ORDERED this _!}_day of , 2010, in Tallahassee, Leon County, Florida. I Ith Care Administratio 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. Copies furnished to: Lawrence R. Metsch, Esq. The Metsch Law Firm, P.A. 20801 Biscayne Blvd. Suite 307 Aventura, Florida 33180 (U. S. Mail) Lourdes A. Naranjo, Esq. Assistant General Counsel Agency for Health Care Administration 8350 N. W. 52 Terrace - Suite 103 Miami, Florida 33166 (Interoffice Mail) Finance & Accounting Patricia M. Hart Agency for Health Care Administrative Law Judge Administration Division of Administrative Hearing 2727 Mahan Drive, MS # 14 1230 Apalachee Parkway Tallahassee, Florida 32308 Tallahassee, Florida 32399 (Interoffice Mail) Jan Mills Agency for Health Care Administration 2727 Mahan Drive, Bldg #3, MS #3 Tallahassee, Florida 32308 (Interoffice Mail) CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of this Final Order was served on the above-named person(s) and entities by U.S. Mail, or the method designated, on this the ay of rCLa.r Y" , 2010. 7 Richard J. Shoop Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Building #3 Tallahassee, Florida 32308 (850) 922-5873
The Issue The issue in this case is whether the Agency for Health Care Administration (AHCA) should enroll the Petitioner, Oscar Sansoni, as a Medicaid provider of support coordination services.
Findings Of Fact In 1990, the former Department of Health and Rehabilitative Services (HRS) preliminarily confirmed a report of abuse or neglect against the Petitioner, Oscar Sansoni (report No. 90-045389). The Petitioner asked that the report be expunged and asked for formal administrative proceedings when HRS denied his request (DOAH Case 90-4332C). Upon commencement of the hearing in DOAH Case 90-4332C, the Petitioner withdrew his request for expunction "upon condition that such withdrawal would not prejudice his right to request, at a later date, further proceeding on the issue of an exemption from disqualification for employment." A Recommended Order of Dismissal was entered in the case on October 26, 1990, on the basis of the Petitioner's withdrawal of his expunction request. On August 6, 1991, a Final Order was entered on the basis of the Recommended Order of Dismissal; it denied the expunction request and confirmed the report. The Petitioner was initially certified by HRS to provide support coordination services under Florida's Medicaid waiver program in November 1993. He provided those services in District 6 and in District 14, but not without some problems in both districts. The first survey of the Petitioner conducted in District 14 on September 21, 1994, revealed five major areas of concern: support plans did not authorize services; (2) cost plans (plans of care) did not authorize purchase of services; (3) case notes did not substantiate billing; (4) case notes were not in sufficient detail; and (5) planning prior to changing client support was inadequate. As a result, District 14 withdrew the Petitioner's ability to process billings for 90 days. The first survey of the Petitioner conducted in District 6 on October 21, 1994, revealed most of the same concerns as in District 14. (The exception was that the Petitioner was not criticized for inadequate planning.) To the Petitioner's credit, he improved following the initial surveys. A follow-up survey conducted in District 14 on January 24, 1995, revealed that the Petitioner was in full compliance. A follow-up survey in District 6 also revealed progress, but the Petitioner was not considered to be providing better than adequate services there. On December 29, 1994, the Petitioner signed a verification that he had obtained or would soon be obtaining a background screening, as required of all HRS Developmental Services Medicaid waiver support coordinators. During a routine review on or about May 24, 1995, HRS discovered that the Petitioner had not yet obtained or even applied for a background screening. HRS conducted a background screening of the Petitioner which revealed the confirmed report of abuse or neglect, report No. 90-045389. As a result, HRS took action to revoke the Petitioner's Medicaid waiver certification. The outcome of the revocation proceeding is not clear from the record, but it appears from the evidence that the Petitioner was required to relinquish 34 District 6 case files for handling by other support coordinators. Review of those files revealed that 15 of the 34 had no support plans or overdue support plans. Most of the case files had no case notes. The Petitioner asked for an extension of time until June 5, 1995, to submit missing case notes and support plans. On June 9, 1995, he submitted some but not all of the missing case notes and support plans. More missing case notes and support plans were submitted on July 27, 1995, along with billings for support services. Still more missing case notes and support plans with additional billings for support services were submitted on January 12, 1996. The Petitioner let it be known that he was spacing the submission of these documents to optimally serve his cash-flow needs. District 6 reviewed the Petitioner's case notes and support plans after January 12, 1996, and found them to be extremely unprofessional, contrary to state statute and rule relative to confidentiality, and lacking in substance relative to the implementation of goals on the support plan. Many support plans were late. The Petitioner failed to comply with many of the assurances required of Medicaid waiver support coordinators. At a later date, the Petitioner applied for Medicaid waiver certification on behalf of Dare to Dream, Inc. HRS denied the application, and the Petitioner requested formal administrative proceedings. The case was referred to DOAH, where it was given Case No. 96-3199. Case No. 96-3199 was set for final hearing on September 20, 1996, but HRS filed a Motion for Suggestion of Mootness on September 17, 1996. In the motion, HRS conceded that the Petitioner met all of the certification criteria set out in Florida Administrative Code Rule 59G-8.200(12)(b)20 and that there was no valid, legal ground for denying certification. It gave assurance that HRS would issue the Medicaid waiver certification letter "within the next week." The Petitioner initially opposed the motion "out of frustration" but withdrew his opposition at a telephone hearing held on the motion on September 18, 1996, and an Order Dismissing Proceeding, Relinquishing Jurisdiction, and Closing File was entered on September 19, 1996, returning jurisdiction to HRS for issuance of the Medicaid waiver certification. HRS issued a one- year Medicaid waiver certification to Dare to Dream, Inc., on September 18, 1996. The letter transmitting the one-year certification to Petitioner explained that, effective January 1, 1995, all providers of Developmental Services/Home and Community Based Services of Support Coordination were required to have a Medicaid provider number. HRS agreed to forward the Petitioner's completed application for a provider number to the Agency for Health Care Administration (AHCA). When HRS forwarded the Petitioner's application for enrollment as a Medicaid provider, HRS included its evaluation of the Petitioner's previous performance and a strong recommendation that the application be denied. AHCA received the Petitioner's application on October 31, 1996. On January 9, 1997, AHCA advised the Petitioner that it intended to deny the application: (1) because, contrary to representations in the application, the Petitioner's Medicaid waiver certification had been revoked, not suspended, by HRS in May 1995; (2) because the Medicaid waiver certification had not been restored; (3) because the Petitioner had on his record a confirmed report of abuse or neglect; and (4) because, for the foregoing reasons, as well as the Petitioner's performance history as a provider of support coordination services for HRS, AHCA concurred with HRS' recommendation that the application be denied. The Petitioner, in his rebuttal, explained: (1) that he understood his Medicaid waiver certification to have been suspended, not revoked; and (2) that, besides, it was restored by the time of his application. He also had admitted in evidence documentation relating to DOAH Case Nos. 90-4332C and 96-3199 (which provide some of the support for Findings 1 and 10-13, supra.) However, the Petitioner put on no evidence contrary to the other grounds for HRS' recommendation that the application be denied.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency for Health Care Administration enter a final order denying the Petitioner's application for enrollment as a Medicaid provider. RECOMMENDED this 15th day of January, 1998, at Tallahassee, Leon County, Florida. J. LAWRENCE JOHNSTON 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 Filed with the Clerk of the Division of Administrative Hearings this 15th day of January, 1998. COPIES FURNISHED: Jack B. Pugh, Esquire Suite 1080 1645 Palm Beach Lakes Boulevard West Palm Beach, Florida 33401 Gordon Scott, Esquire Agency for Health Care Administration Building 3, Suite 3431 2727 Mahan Drive Tallahassee, Florida 32308 Sam Power, Agency Clerk Agency for Health Care Administration Fort Knox Building 3, Suite 3431 2727 Mahan Drive Tallahassee, Florida 32308 Jerome W. Hoffman, General Counsel Agency for Health Care Administration 2727 Mahan Drive Tallahassee, Florida 32308
The Issue Whether the Petitioner is required to repay $2,269.00 to the Respondent?
Findings Of Fact The Petitioner entered into a "Noninstitutional Professional and Technical Medicaid Provider Agreement" (hereinafter referred to as the "Medicaid Provider Agreement") with the Respondent. Pursuant to the Medicaid Provider Agreement, the Petitioner agreed to participate in the Florida Medicaid Program. Pursuant to paragraph 2 of the Medicaid Provider Agreement, the Petitioner agreed to the following: The provider agrees to keep such records as are necessary to fully disclose the extent of services provided to individuals receiving assistance under the State Plan and agrees to furnish the State agency upon request such information regarding any payments claimed for providing these services. Access to these pertinent records and facilities by authorized Medicaid Program representatives will be permitted upon a reasonable request. The Petitioner also agreed in the Medicaid Provider Agreement to submit claims under the Medicaid Provider Agreement in accordance with the Florida Medicaid Program and applicable "Florida Administrative Rules, Florida Statutes, policies, procedures, manuals of the Florida Medicaid Program and Federal laws and regulations." Paragraphs 3 and 7 of the Medicaid Provider Agreement. Medicaid is essentially a mechanism by which the federal government provides funds for the payment of a part of certain medical service costs to the State of Florida. It is a federal grant under Title XIX of the Social Security Act. In Florida, community mental health services provided to persons eligible for Medicaid coverage can be paid for under the Medicaid program. Generally, the federal government provides 56 percent of the costs of Medicaid services and the State is responsible for 44 percent. As eligible services are rendered federal Medicaid funds are received and deposited in the Medical Care Trust Fund. In order for services to constitute "eligible services" they must have been rendered in compliance with Chapter 10C-7, Florida Administrative Code. If services are not "eligible services" (they do not comply with Chapter 10C-7), the State is not entitled to receive federal Medicaid funds. In order to insure that providers of Medicaid services are providing "eligible services" the Respondent conducts compliance audits. The purpose of compliance audits is to determine if federal Medicaid funds have been properly received. On June 27, 1985, the Respondent's Medicaid Program auditors conducted a compliance audit of the records of the Petitioner pertaining to Medicaid clients of the Petitioner's Bristol office. As a result of the June 27, 1985 audit, the Respondent determined that the Petitioner had improperly submitted claims for Medicaid care and that such claims had been improperly paid by the Respondent. The parties stipulated that the Petitioner was paid $2,269.00 for claims for which there was insufficient documentation to warrant payment under Chapter 10C-7, Florida Administrative Code. Petitioner claimed $2,269.00 as an amount due for Medicaid "eligible services" and was so paid by the Respondent. In fact, however, the services were not Medicaid "eligible services." The State was not entitled to federal Medicaid funds for these services. The Petitioner improperly received the amount in controversy because the Petitioner did not comply with Chapter 10C-7, Florida Administrative Code, as it was required to do pursuant to the Medicaid Provider Agreement. On May 21, 1985, the Petitioner executed an "Alcohol, Drug Abuse and Mental Health Services Contract Between State of Florida Department of Health and Rehabilitative Services and Apalachee Community Mental Health Services, Inc." (hereinafter referred to as the "Provider Contract"). The Provider Contract was executed by the Respondent on June 11, 1985. Pursuant to the Provider Contract, the Petitioner agreed to provide alcohol, drug abuse and mental health services in eight designated counties. In paragraph IC4 of the Provider Contract, the Petitioner was required to comply with Chapters 394, 396 and 397, Florida Statutes, and Chapters 10E-13 and 10E-14, Florida Administrative Code, "as appropriate." 15. Paragraph IC5 of the Provider Contract also required the Petitioner to "comply with all other applicable state standards, provided they are specified in Florida Statutes or Administrative Rules established by the department or made known in writing to the contractor." Paragraph IE1 and 2 of the Provider Contract required that the Petitioner "participate in the Community Mental Health/Alcohol Services Program as defined in Section 10C-7.525, F.A.C." and that the Petitioner "pursue and submit vouchers on all Medicaid eligible clients for Medicaid eligible services." [Emphasis added]. Paragraph IG1 of the Provider Contract required the Petitioner to provide an annual audit report by an independent certified public accountant to the Respondent. Paragraph IH of the Provider Contract required the Petitioner to permit monitoring for compliance with state and federal rules and regulations. Paragraph IIA1 of the Provider Contract provided that the Respondent will pay up to 75 percent of approved costs as determined under Chapters 394 and 397, Florida Statutes, and Chapter 10E-14, Florida Administrative Code, in an amount not to exceed $4,096,175.00. Paragraph IO of the Provider Contract required that the Petitioner secure "local match." Pursuant to the Provider Contract the Petitioner is entitled to receive payment for eligible expenditures" up to the amount of the Provider Contract and subject to the availability of funds. Services to be paid for pursuant to the Provider Contract include Medicaid eligible services and non-Medicaid services. Even though the Petitioner did not provide "eligible services" the amount in controversy may have been an "eligible expenditure" for which it may receive payment at a later date. Whether the Petitioner is entitled to payment of the amount in controversy will be determined at a later date as a result of the financial audit required by paragraph IGI of the Provider Agreement and will depend on the availability of funds and whether the Petitioner has already received the maximum amount specified in the Provider Contract. Whether the Petitioner is entitled to ultimate payment of the amount in controversy at a later date is governed by Chapters 394 and 397, Florida Statutes, and Chapters 10E-13 and 10E-14, Florida Administrative Code. A dispute arose between certain medical health providers and the Respondent over whether Medicaid funds are considered "state funds" for which local match is required pursuant to Chapter 394, Florida Statutes. The Department took the position that Medicaid funds are considered state funds and thus require local match and are subject to audit pursuant to Chapter 10E-13, Florida Administrative Code. When the dispute arose, the Respondent developed an "Issue Paper" (Petitioner's exhibit 2). The Respondent adopted one of the alternatives recommended in the Issue Paper to treat Medicaid funds as state funds for which local match is required. The Respondent also took the position that Medicaid eligible services were subject to the provisions of Chapter 394, Florida Statutes, and Chapter 10E, Florida Administrative Code. The Respondent's decision to treat Medicaid funds as state funds subject to local match was challenged by the Florida Council for Community Mental Health, Inc. Florida Council for Community Mental Health, Inc. v. Department of Health and Rehabilitative Services, 8 FALR 756 (Feb. 6, 1986). The issue in that case was whether the position of the Respondent taken in the Issue Paper was a rule.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Petitioner repay the Respondent $2,269.00 for services improperly billed. DONE and ENTERED this 17th day of March, 1987, in Tallahassee, Florida. LARRY J. SARTIN Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1500 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 17th day of March, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-1381 The parties have submitted proposed findings of fact. It has been generally noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. Paragraph numbers in the Recommended Order are referred to as "RO ." Petitioner's Proposed Findings of Fact: Proposed Finding RO Number of Acceptance of Fact Number or Reason for Rejection 1 RO 15-16. RO 17-19. The first and second sentences incorrectly refer to Paragraph I(C)(6) of the Medicaid Provider Agreement. The correct paragraphs are 1(0)4 (first sentence) and 1(0)5 (second sentence). The following portion of the second sentence is not supported by the weight of the evidence: "or incorporated as part of the contract. The following portion of the third sentence is not supported by the weight of the evidence: "and HRS Manual 230-31. The first sentence is accepted in RO 28. The rest of this proposed finding of fact is generally accepted in RO 28. 4-5 These proposed findings of fact are too broad and are not supported by the weight of the evidence. Irrelevant and not supported by the weight of the evidence. Too broad and not supported by the weight of the evidence. See RO 28. Too broad and not supported by the weight of the evidence. See RO 30. 9-17 These proposed findings of fact are irrelevant. Additionally, the third and fourth sentences of paragraph 16 are not supported by the weight of the evidence. RO 6. RO 9. The last sentence is irrelevant. Not supported by the weight of the evidence. Irrelevant. Respondent's Proposed Findings of Fact: 1 RO 1-3. 2 RO 10. 3 RO 11. 4 RO 12-13 5 Hereby accepted. COPIES FURNISHED: Sam Power, Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Gregory L. Coler, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Theodore E. Mack, Esquire Department of Health and Rehabilitative Services 1323 Winewood Boulevard Building 1, Room 407 Tallahassee, Florida 32399-0700 Ronald W. Brooks, Esquire Brooks, LeBoeuf & LeBoeuf 863 East Park Avenue Tallahassee, Florida 32301
