Conclusions THE PARTIES resolved all disputed issues and executed a Settlement Agreement. The parties are directed to comply with the terms of the attached settlement agreement. Based on the foregoing, this file is CLOSED. DONE and ORDERED on this the ----3_ day of J--+Ni 1_c..y....,....,_-..._.{_· , 2014, m Tallahassee, Florida. /\ /' f ' .' C \ ).;'-(/ '((l /r- ELIZABETH DUDEK, SECRETARY (Agency for Health Care Admforstration 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. (OPPOSING COUNSEL) Peter A Lewis, Esquire 302 North Shannon Lakes Drive Suitel0l Tallahassee, Florida 32309 (Via U.S. Mail) Bureau of Health Quality Assurance 2727 Mahan Drive, Mail Station 9 Tallahassee, Florida 32308 (Interoffice Mail) Stuart Williams, General Counsel Agency for Health Care Administration 2727 Mahan Drive Building 3, Mail Station 3 Tallahassee, Florida 32308 (Interoffice Mail) Shena Grantham, Chief Medicaid FFS Counsel Agency for Health Care Administration 2727 Mahan Drive Building 3, Mail Station 3 Tallahassee, Florida 32308 (Interoffice Mail) Karen Chang, Bureau Chief Medicaid Program Analysis 2727 Mahan Drive Building 2, Mail Station 21 Tallahassee, Florida 32308 (Interoffice Mail) Agency for Health Care Administration Bureau of Finance and Accounting 2727 Mahan Drive Building 2, Mail Station 14 Tallahassee, Florida 32308 (Interoffice Mail) Zainab Day, Medicaid Audit Services Agency for Health Care Administration 2727 Mahan Drive, Mail Station 21 Tallahassee, Florida 32308 (Interoffice Mail) Kristin M. Bigham Office of the Attorney General The Capitol PL - 01 Tallahassee, FL 32399-1050 (Via US Mail) State of Florida, Division of Administrative Hearings The Desoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (Via U.S. Mail) CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished to the above named addressees by U.S. Mail on this the of -;,;;-D, 2014. Richard Shoop, Esquire Agency Clerk State of Florida Agency for Health Care Administration 2727 Mahan Drive, Building #3 Tallahassee, Florida 32308-5403
The Issue Whether Petitioner's stay at The Rehabilitation Center at Hollywood Hills LLC ("Rehab Center"), a skilled nursing facility, is a covered benefit pursuant to the State of Florida Employees' HMO Plan ("Plan") administered by AvMed.
Findings Of Fact Respondent is the state agency charged with administering the state employee health insurance program pursuant to section 110.123, Florida Statutes. At all times material hereto, Petitioner was a member of the Plan. AvMed is the third party administrator for the Plan at issue in this cause. As the third party administrator, AvMed provides utilization and benefit management services. On or about September 21, 2016, Petitioner suffered a hemorrhagic cerebral vascular accident, commonly referred to as a stroke, while in her home. Petitioner was transported to Jackson Memorial Hospital for treatment. Petitioner was discharged from Jackson Memorial Hospital on October 17, 2016. Upon discharge on October 17, 2016, Petitioner was admitted to the Rehab Center. On October 11, 2016, AvMed received a pre-authorization request for inpatient admission for rehabilitative services at the Rehab Center from Petitioner's medical provider. On the same day, AvMed denied the request for pre-authorization on the basis that an inpatient admission to the skilled nursing facility for the purpose of rehabilitation is not a covered benefit. A copy of the denial letter was sent to Petitioner, the physician that made the request for coverage, the Rehab Center, and was provided to the family at the hospital by a case manager. Despite notice of the denied pre-authorization by AvMed, six days later, on October 17, 2016, Petitioner was admitted into the Rehab Center. Petitioner remained at the facility until November 11, 2016. While at the facility, Petitioner experienced pain and swelling in her right leg and was transferred to Memorial Hospital on November 11, 2016, on an emergency basis. Petitioner had a deep vein thrombosis ("DVT") blood clot and had a DVT filter inserted. Petitioner remained at the hospital until November 15, 2016. Although Petitioner was not actually "discharged" from the Rehab Center prior to her emergency admission to Memorial Hospital, Memorial Hospital submitted a pre-authorization request to return Petitioner to the Rehab Center for the purpose of rehabilitation. On November 15, 2016, AvMed denied the request on the basis that inpatient stays for the purpose of rehabilitation are not a covered benefit. A copy of the denial letter was provided to Petitioner, the requesting physician, the Rehab Center, and was provided to the family by the case manager at the hospital. Despite being provided notice of the denial by AvMed, on November 15, 2016, Petitioner transferred back to the Rehab Center where she remained until discharge on January 14, 2017. On November 30, 2016, Petitioner, by and through her daughter, submitted a request for a Level I Appeal to AvMed. In the request for the Level I Appeal, Petitioner's daughter stated it is "very important that [Petitioner] gets proper rehabilitation care . . . [p]lease advise if rehab treatment will be covered." The Level I Appeal request only included an attachment of the denial of pre-authorization for the stay commencing in November 2016. There was no indication that Petitioner was appealing the pre-authorization denial from October. However, Petitioner referenced both denials in the Level II Appeal request; therefore, both stays were considered on the Level II Appeal, and both stays are being addressed in this action. Pursuant to the plan document, rehabilitative services is a covered benefit but is subject to certain restrictions. Specifically, the Plan states, in pertinent part: Rehabilitative services shall not be covered when: The Health Plan member was admitted to a Hospital or other facility primarily for the purpose of providing rehabilitative services; or The rehabilitative services maintain rather than improve a level of physical function, or where it has been determined that the services shall not result in significant improvement in the Health Plan Member's condition within a 60-day period. Resp. Ex. 1, at 46 (emphasis added). The Plan defines "Other Health Care Facility" as follows: Any licensed facility, other than acute care Hospitals and those facilities providing services to ventilator dependent patients, which provides inpatient services such as skilled nursing care and rehabilitative services. Resp. Ex. 1, at 9. The Rehab Center is an "other health care facility" pursuant to the terms of the Plan. The Rehab Center provides skilled care, including skilled nursing and rehabilitation services. Skilled nursing facilities provide two types of services. The first type of service is custodial care. Custodial care is when a person lives in the facility for reasons other than healthcare needs. The second type of service is skilled care. There are two types of skilled care: skilled nursing services and rehabilitation services. Skilled nursing is applicable when a patient needs the services of someone with medical licensure equal to or greater than a licensed registered nurse, and those services are needed on a daily basis. An example of skilled nursing services is administration of intravenous medication, wound care, tracheotomy care, and assistance with a ventilator. On the other hand, rehabilitation services do not require the services of a medical professional with a minimum licensure of registered nurse. Rather, rehabilitation services are comprised of physical therapy, occupational therapy, and speech therapy. Occupational therapy is a covered benefit per the Plan only if the therapy is provided as a home health service, a hospice service, or as treatment for Autism Spectrum Disorder. The occupational therapy services received by Petitioner were in a skilled nursing facility and were not for the purpose of treatment of Autism; therefore, the therapy would not be a covered service under the Plan. The Level I Appeal was reviewed by Edwin Rodriguez, M.D., a Medical Director at AvMed. Dr. Rodriguez specializes in internal medicine, the practice of medical care for the adult population. Approximately 60 to 65 percent of the practice of internal medicine is geriatric medicine, which is the specialty that focuses on medical care for the elderly. As a practicing physician, Dr. Rodriguez has worked in a skilled nursing facility. A primary function of Dr. Rodriguez's current position is utilization management. Utilization management includes the process of reviewing a request for coverage to determine whether the service is a covered benefit pursuant to the Plan and, if it is a covered benefit, reviewing the service for medical appropriateness. In Dr. Rodriguez's opinion, Petitioner's stays at the Rehab Center commencing in October and in November were primarily for the purpose of rehabilitation, and therefore, not a covered benefit. Dr. Rodriguez testified that the discharge summary from Jackson Memorial Hospital indicated that Petitioner needed rehabilitation services. Specifically, the discharge summary recommended a "protracted rehab course in the setting of a skilled nursing facility." The discharge summary also recommended physical therapy, occupational therapy, and speech therapy as follow-up care. Dr. Rodriguez testified that the Jackson Memorial Hospital discharge summary did not indicate any need for skilled nursing. The discharge summary indicated that at the time of discharge, Petitioner had a new onset of Atrial Fibrillation ("AFib"), a resolved urinary tract infection, and a Foley catheter. Dr. Rodriguez testified that none of these conditions required skilled nursing. Dr. Rodriguez testified that Petitioner's AFib was rate-controlled, meaning it was stabilized, and therefore, did not require skilled nursing care. The discharge summary indicated Petitioner had a urinary tract infection, which had resolved at the time of discharge. Dr. Rodriguez testified that a urinary tract infection does not require skilled nursing unless intravenous antibiotics are required. There was no evidence that Petitioner was taking any intravenous medications. All of the medications listed in the medical records from Jackson Memorial Hospital, Memorial Hospital, and the Rehab Center were oral medications that did not require any skilled care. Dr. Rodriguez further testified that although the discharge summary indicated that Petitioner had dysphagia, or difficulty swallowing, that Petitioner passed a swallow test prior to discharge from Jackson Memorial Hospital. Dr. Rodriguez testified that Petitioner's Foley catheter did not require skilled nursing. A Foley catheter is a thin tube that goes directly into the bladder through the urethra. A Foley catheter does not require skilled care, in fact, many people leave skilled nursing facilities with Foley catheters. Dr. Rodriguez testified that Petitioner's specific medical conditions and physical limitations did not require skilled care for the Foley catheter. Petitioner's catheter was to be changed once per month, and according to the Rehab Center records, the catheter was changed on an outpatient basis by a physician located outside of the Rehab Center. Furthermore, pursuant to the Plan, catheter care is considered "custodial care" and is excluded from coverage. Dr. Rodriguez testified that the records from the Rehab Center for the stay commencing in October indicate Petitioner's stay was for rehabilitation services, specifically occupational therapy, speech therapy, and physical therapy. The records include an occupational therapy care plan, occupational therapy progress notes, and a speech therapy plan for treatment. The records further include progress notes that include an "assessment and plan" to address the hemorrhagic cerebral vascular accident to include physical therapy and occupational therapy. Dr. Rodriguez testified that the records did not indicate any need for skilled nursing care. Dr. Rodriquez testified that the records from the Rehab Center for the stay commencing in November also evidence that Petitioner was primarily receiving rehabilitative services, specifically physical therapy and occupational therapy services. Petitioner presented to the Rehab Center with motor control deficits, right-side balance hemiplegia, balance deficits, impaired coordination, poor functional activity tolerance, and poor safety awareness. A physical therapy plan was completed in order to address these issues. Petitioner also presented with a decline in her functioning activities of daily living, such as self-feeding and functional mobility. An occupational therapy plan was completed in order to address these issues. Dr. Rodriguez testified that there was no documentation as to the need for skilled nursing care. The claim forms submitted by the Rehab Center to AvMed also indicate that Petitioner was primarily receiving rehabilitation services, specifically physical therapy, occupational therapy, and speech therapy. On December 1, 2016, AvMed denied the Level I Appeal on the basis that the inpatient stay commencing in November for the purpose of rehabilitation is not a covered benefit. By letter dated December 5, 2016, a request for a Level II Appeal was submitted by Petitioner's daughter, Marie Wright. The letter requests coverage for acute rehabilitation. The letter specifically alleged that AvMed refused to "grant [Petitioner] acute and skilled rehabilitation to put [Petitioner] on her feet again." Ms. Wright states that she wants Petitioner to "receive the Acute Rehabilitation [Petitioner] so desperately needs and deserves." As supportive documentation for the Level II Appeal request, Ms. Wright attached a physical therapy evaluation from Memorial Hospital. Kathy Flippo, a registered nurse and employee of Respondent, reviewed the Level II Appeal. Ms. Flippo's opinion was that the stays at the Rehab Center were primarily for purposes of rehabilitation. Ms. Flippo testified that the focus of the treatment at the Rehab Center for both stays was rehabilitation services to provide assistance and/or training with activities of daily living, such as moving in bed, getting out of bed, and feeding. Ms. Flippo testified that she reviewed the records from Jackson Memorial Hospital, the Rehab Center, and Memorial Hospital, and there was no indication that Petitioner needed skilled nursing services. Ms. Flippo testified that Petitioner's medications were all oral and the Foley catheter did not require skilled care. Ms. Flippo testified that the statements of Petitioner's representative, Ms. Wright, further confirmed that the intent was for Petitioner to receive rehabilitation at the Rehab Center. By letter dated December 21, 2016, Respondent notified Petitioner of the decision to deny the claim as a non-covered service. Ms. Wright testified that her mother needed total care for all of her needs and was not in need of rehabilitation services until after Petitioner's discharge from the Rehab Center on January 14, 2017. Ms. Wright testified that she did call PeopleFirst to request a change in Petitioner's health plan as rehabilitation services were not covered under the current AvMed plan. Ms. Wright stated that she did not recall the timeframe of the call but that she was asking about the possibility of changing the plan, not because Petitioner needed rehabilitation "right then and there," but that she was looking at "options for down the road." However, the call records from PeopleFirst evidence that Ms. Wright contacted PeopleFirst on October 19, 2016, in an effort to "upgrade" Petitioner's insurance to a plan that covers rehabilitation services. During the call, Ms. Wright was informed that any changes to the plan would not take effect until January 1, 2017. In response, Ms. Wright stated, "Ok, so that won't help us, I mean it could help us for her second step of rehab but it is not going to help us now. Right now we are you know stuck in the middle between acute rehab and Avmed and Medicare so I was hoping that I could just fix it by upgrading her plan if it was going to work immediately." Furthermore, Ms. Wright's own statements in the Level I Appeal request dated November 30, 2016, and the Level II Appeal request dated December 5, 2016, both indicate that Ms. Wright's intent was to secure coverage for rehabilitation services well before Petitioner's discharge on January 14, 2017. Petitioner's sister, Lorraine Simpson's, call to PeopleFirst also confirms that Petitioner was placed in the Rehab Center for the purpose of obtaining rehabilitation services. Ms. Simpson called PeopleFirst on December 27, 2016, in order to upgrade Petitioner's policy. Ms. Simpson stated Petitioner "needs rehab and no one is able to give it to her because she hasn't got the coverage." Additionally, the family placed calls to AvMed regarding coverage of inpatient rehabilitation at a Rehab Center. On October 8, 2016, three days prior to the pre-authorization denial and seven days prior to admission to the Rehab Center, Ms. Simpson was notified that inpatient rehabilitation services at a skilled nursing facility are not a covered benefit. On October 14, 2016, three days before Petitioner was admitted to the Rehab Center, Ms. Simpson again contacted AvMed and was notified that the Plan does not cover inpatient admissions for the purpose of rehabilitation. At no time was Petitioner or her family advised that either stay at the Rehab Center would be covered. While Ms. Wright and Ms. Simpson testified that Claudia Martinez with AvMed notified them that the stay commencing in October would be covered, Ms. Martinez testified that she did not tell Petitioner or her family that the stay would be covered and that, in fact, she told them that the request for pre-authorization was denied.2/ Ms. Martinez further testified that Ms. Wright asked her about changing the health plan since rehabilitation services were not covered, and Ms. Martinez informed Ms. Wright to contact member services. Ms. Martinez confirmed that AvMed does not have any authorizations on file for the stays in question. Ms. Wright testified that AvMed's approval of 100 days at the facility was documented in Petitioner's Exhibit 2. However, the form entitled "Insurance Co-Payment" is not a document generated or used by AvMed. The document itself has the name of the skilled nursing facility, The Rehabilitation Center at Hollywood Hills LLC, on the bottom. Furthermore, the document states that the policy covers up to 100 days at a skilled nursing facility, which corresponds with Medicare's maximum for coverage as opposed to the State of Florida coverage for skilled nursing which covers a maximum of 60 days in a skilled nursing facility. Due to Petitioner's age, she was eligible for Medicare. The Plan provides for coordination of benefits when a member is Medicare eligible. When the member is an active employee, the Plan is typically the primary payor while Medicare is the secondary payor.3/ In a case for which the Plan is a primary payor, and the medical claim at issue is not a covered benefit, Medicare is able to provide coverage for the claim. In this case, Medicare covered a portion of Petitioner's stay at the Rehab Center. Unlike the Plan at issue in this action, Medicare does not limit or exclude coverage for rehabilitation stays in a skilled nursing facility. Medicare covers up to 100 days in a skilled nursing facility. Medicare typically covers 100 percent of the inpatient stay for the first 20 days. For days 21 through 100, the member is responsible for a co-payment of $161.00 per day.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Management Services, Division of State Group Insurance, issue a final order denying Petitioner's claim for coverage of the stays at The Rehabilitation Center at Hollywood Hills LLC, and further, denying Petitioner's request for attorney's fees and costs. DONE AND ENTERED this 11th day of August, 2017, in Tallahassee, Leon County, Florida. S MARY LI CREASY 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 11th day of August, 2017.
The Issue The issues in this case are whether the statement contained in Respondent's letter dated September 9, 1997 (1997 Letter), establishing a $24.00 payment for hospital outpatient services billed as revenue code 451 constitutes a rule as defined by Subsection 120.52(15), Florida Statutes (2010),1 and, if so, whether Respondent violated Subsection 120.54(1), Florida Statutes, by not adopting the statement in accordance with applicable rulemaking procedures.
Findings Of Fact AHCA is the state agency responsible for the administration of the Florida Medicaid Program. § 409.902, Fla. Stat. Petitioners are acute care hospitals that are and were enrolled as Medicaid providers of outpatient services in Florida, at all times relevant to this proceeding. On September 9, 1997, AHCA issued a letter to hospital administrators, which provided the following: This letter is to inform you that Medicaid coverage for hospital emergency room screening and examination services is now in effect. Hospitals will be reimbursed a $24.00 flat fee for providing these services to Medipass and Medicaid fee-for-service recipients who do not require further treatment beyond the screening and examination services. This policy is retroactive to July 1, 1996. The letter further provides that the $24.00 reimbursement would be billed under the revenue code 451. The statement in the letter applies to hospitals which are Medicaid providers and, therefore, is a statement of general applicability. The statement meets the definition of a rule. AHCA concedes that the statement, which provides "payment of a $24 rate for Medicaid Hospital Outpatient Services billed under Revenue Code 451, constitutes a rule under s. 120.52(16), Fla. Stat." AHCA concedes that the statement has not been adopted as a rule by the rule adoption procedures provided in Section 120.54, Florida Statutes. AHCA has discontinued all reliance on the challenged statement.
Findings Of Fact Based upon the Stipulation and Joint Petition, the undersigned makes the following Findings of Fact: Petitioners are the natural parents of Onazjah Cutley (“Onazjah”) and are the “claimants,” as defined in section 766.302(3), Florida Statutes. 1 All references to the Florida Statutes are to the 2019 versions, none of which have materially changed since 2019. Onazjah suffered a “birth-related neurological injury” (“Injury”), as defined in section 766.302(2), on or about December 2, 2019. The Injury solely and proximately caused Onazjah’s medical condition, which resulted in her death on December 14, 2019. At birth, Onazjah weighed 3,165 grams. Stephen W. Tobia, M.D., rendered obstetrical services in the delivery of Onazjah and, at all material times, was a “participating physician,” as defined in section 766.302(7). Health First’s Holmes Regional Medical Center, in Melbourne, Florida, is the “hospital,” as defined in section 766.302(6), where Onazjah was born. On September 22, 2020, Petitioners filed a Petition seeking compensation from NICA, pursuant to section 766.305, Florida Statutes. The Petition is incorporated herein by reference in its entirety, including all attachments. Any reference to NICA made within that document encompasses, where appropriate, the Florida Birth-Related Neurological Injury Compensation Plan (“Plan”).
