The Issue Whether the Notice of Intent issued by the Commission for the Transportation Disadvantaged (Respondent) to award a contract for Medicaid Non-Emergency Transportation Services (Medicaid NET Services) to Medicaid beneficiaries in Broward County to LogistiCare Solutions, LLC (Intervenor) is contrary to Respondent's governing statutes, rules, or policies; Whether the bid or proposal specifications relating to the receipt and evaluation of the Responses to the Requests for Proposals RFP-DOT-04/05-9021-LG (RFP) was clearly erroneous, contrary to competition, arbitrary, or capricious; Whether an evaluator was improperly biased or legally unqualified to render a fair and impartial evaluation; and Whether the provisions of the RFP, Federal law, Chapters 286 and 287, Florida Statutes (2004), or agency policy were violated by the proposed award to Respondent concerning the provision of Medicaid NET Services in Broward County.
Findings Of Fact Respondent is an independent commission of the State of Florida created pursuant to Section 427.012, Florida Statutes (2004), and housed administratively and fiscally within FDOT. Respondent's address is 605 Suwannee Street, Mail Station 49, Tallahassee, Florida 32399-0450. The stated purpose of the Commission is "to accomplish the coordination of transportation services provided to the transportation disadvantaged." § 427.013, Fla. Stat. (2004). Respondent helps to provide quality, efficient transportation services for people who are transportation disadvantaged, including the elderly, disabled and those on low income. It provides transportation to doctors' offices, hospitals, and other kinds of health care services for people who cannot afford to purchase transportation or cannot drive, for whatever reason. In order to accomplish its purpose, Respondent obtained federal dollars from the United States Department of Health and Human Services to pay for the services described in the RFP. Respondent, through FDOT, issued an RFP for qualified Proposers to provide Medicaid NET Services to Medicaid beneficiaries in Broward County and other counties in Florida. Respondent is required to comply with FDOT's procurement rules, policies, and procedures. FDOT administered the procurement process for Respondent by issuing the solicitation and, otherwise, administratively handling the procurement for Respondent. The Notice of Solicitation for bids was issued, and responses were due on January 4, 2005. Neither party filed a challenge to the terms of the RFP within the 72-hour period after the posting pursuant to Subsection 120.57(3)(b), Florida Statutes (2004). Two entities timely submitted proposals in response to the RFP. Petitioner submitted a proposal in response to the RFP and is a corporation authorized to do business in Florida. Petitioner's business address is 16117 U.S. 19, Clearwater, Florida 33764. Intervenor submitted a proposal in response to the RFP and is a foreign, limited liability, for-profit corporation registered to do business in the State of Florida. Intervenor's principal business address is 1640 Phoenix Boulevard, Suite 200, College Park, Georgia 30349. Oral presentations took place on January 19, 2005, in Tallahassee. On January 25, 2005, FDOT, on behalf of Respondent, posted a Notice of Intent to Award Contract for Medicaid NET Services for Broward County to Intervenor. On January 25, 2005, Petitioner submitted to FDOT a notice indicating its intent to protest the proposed award and filed its timely Petition for Formal Administrative Hearing with FDOT on February 3, 2005. Following mediation, FDOT referred the matter to DOAH on March 10, 2005. The RFP FDOT assisted Respondent administratively in the procurement of Medicaid NET Services described in the RFP. FDOT policies and Chapter 287, Florida Statutes (2004), require written justification when an agency elects to use an RFP as a procurement method, rather than an Invitation to Bid (ITB). Respondent, however, failed to document the need for an RFP, rather than an ITB. However, no challenge was made as to the use of an RFP, rather than an ITB, within 72 hours of the release of the Notice of Solicitation. Respondent, nevertheless, requested written proposals from qualified Proposers to provide Medicaid NET Services to Medicaid beneficiaries in Broward County. According to the RFP, Respondent sought to enter into a one-year contract with providers in Brevard, Broward, and Hillsborough counties for the delivery of transportation services to the transportation disadvantaged. The contract price sheet states that "[t]his is a set price contract for each county, and price proposals are not required." No entity submitting a proposal for provision of Medicaid NET Services in Hillsborough, Brevard, or Broward Counties submitted any price other than the signed price page in each of their proposals. No Proposer filed any protest regarding the "set" price in the solicitation, and no challenges were made with regard to the contract price until the day of the hearing. The form contract, attached to and incorporated in the RFP, explicitly states that "[r]enewal of the contract shall be in writing and shall be subject to the same terms and conditions set forth in the initial contract." Respondent expected that the original contract would run for a one-year period and that the renewal period would not exceed an additional three years. The RFP further stated that the contract would be renewable "for up to 3 years or the term of the contract, whichever [was] longer." Respondent did not expect Proposers to submit renewal option prices. No Proposer for Hillsborough, Brevard, or Broward Counties submitted any option renewal prices, and all accepted the fact that renewals would be under the same terms and conditions subject to annual appropriation. No Proposer filed any protest regarding the lack of renewal option prices in the solicitation. Proposals The RFP anticipated that Proposers would submit written proposals in response to the request. The RFP defined "Proposer" as the "the prime vendor acting on their own behalf and those individuals, partnerships, firms, or corporations comprising the Proposer team." The Proposer team consisted of those persons and entities that were referenced in the proposal. Petitioner's Proposer team included various individuals and affiliates with experience providing Medicaid NET Services in Florida. These affiliates included MMG Transportation, Inc., Transportation Management Services of Brevard, Inc., Transportation Contract Services, Inc., and Greater Pinellas Transportation Management Services. Petitioner's Proposer team had good management credentials and experience in the provision of Medicaid NET Services in various parts of Florida. As demonstrated in its proposal and the signed letters of intent contained therein, Petitioner's Proposer team also included subcontractors with experience in providing Medicaid NET Services in Broward County. Intervenor's Proposer team included, among others, its parent company, Logisticare, Inc., and its proposed subcontractors, including AAA Wheelchair Wagon Service, Inc. ("AAA"). Intervenor claims it is the largest transportation management company in the United States and the first company to do transportation management brokerage services in association with the Georgia Medicaid Program in 1997. Intervenor operates in 11 states, has five primary operation centers, approximately 28 to 29 field offices, employs roughly 500 people, and serves approximately six million individual members around the United States. Intervenor provides the full continuum of all potential levels of services that a Medicaid recipient might require from a non-emergency transportation service. Intervenor was established to run transportation operations formerly run directly by Logisticare, Inc. Intervenor was formed as a limited liability company in 1998, as a function of capitalization of Logisticare, Inc. The direct corporate history of Intervenor can be traced back to 1989. The Logisticare companies have had the same management in place for over 15 years. Today, Intervenor is the only "Logisticare" company that has employees and is the sole operating entity. Logisticare, Inc., managed identical Medicaid NET Services for the Broward County program from 1996 through 1999 and substantially similar services to Broward County as early as approximately 1991. Intervenor currently provides Medicaid NET Services for the Miami-Dade area that have taken them to and through Broward County. When describing its past experience providing Medicaid NET Services, Intervenor's proposal simply referred to "Logisticare" and did not clearly distinguish which corporate entity, whether it be Logisticare, Inc., Logisticare Solutions LLC, or the prior company, Automated Dispatch Systems, which had the prior experience. This is true even though the Broward County experience listed in Intervenor's proposal was gained before Intervenor ever legally existed. In fact, the services were actually performed by a different corporate entity. Intervenor had no direct experience in providing Medicaid NET Services in Broward County. The financial documents in Intervenor's proposal were consolidated financials of several companies, not just the Proposer, but this distinction was not known to at least one of the evaluators because he did not read it. As a result, Intervenor was given full credit for all of the experience and financial capabilities described in its proposal, while the same was not done for Petitioner. Petitioner was a seven-week-old corporation at the time the proposals were evaluated. There was no evidence that Petitioner was a successor entity of any other company or that there was a continuous line of operation leading up to the creation of Petitioner. Petitioner listed some companies as being "in association with" and "affiliated with" them, but its meaning was not defined in its proposal or at the final hearing. No representative of Petitioner testified at the final hearing. Petitioner did not have any prior experience providing Medicaid NET Services in Broward County, nor did it have any prior experience in providing Medicaid NET Services in the State of Florida. Letters of Intent Both Petitioner and Intervenor listed several entities as potential subcontractors in their proposals through the inclusion of letters of intent to negotiate. Petitioner's proposal included letters of intent from Village Care Service, Inc. ("Village Care"), B&L Service, Inc. ("B&L Service"), and All Broward." Intervenor's proposal included letters of intent from AAA, Village Care, Allied Charter and Tours ("Allied"), and Handi-Van, Inc. ("Handi-Van"). The letters of intent state that the entities are interested in providing Medicaid NET Services under subcontract, but the letter of intent itself is not a subcontract. The letters only express intent to enter an agreement if rates and other accepted terms and conditions can be negotiated. It is a common practice for entities that have signed letters of intent with a Proposer to, ultimately, not sign a subcontract with a company. It is also common practice for entities that have not signed letters of intent with a Proposer to subsequently negotiate and sign additional subcontracts for the provision of transportation services. According to Respondent, letters of intent to negotiate could be changed. When establishing Medicaid NET Services in a new area, Intervenor, as a general practice, goes into the existing marketplace of providers to obtain letters of intent from those providers so as to ensure continuity of service so that the Medicaid recipients will not miss a trip. AAA is an existing provider of Medicaid NET Services of Broward County. The fact that AAA notified Intervenor after the Notice of Intent was issued that it will not participate in future provisions of Medicaid NET Services in Broward County and that its last day of providing such services will be May 16, 2005, is irrelevant to this proceeding. Evaluation Committee It was FDOT and Petitioner's intent to evaluate the proposals in a fair, open, and objective manner. In addition, both the RFP and FDOT policies require evaluation committee members to provide fair, open, objective, and uniformly-rated evaluations using the criteria established in the RFP. Respondent established an evaluation committee to review and evaluate the proposals submitted in response to the RFP. This committee consisted of Lisa Bacot, executive director of Respondent; Karen Somerset, assistant director of Programs Evaluation and Oversight of Respondent; and Robert Siedlecki, chairman of the Medicaid Committee of Respondent. Bacot had been involved with one other evaluation of an RFP. Siedlecki had been an evaluator on hundreds of requests for proposals. Siedlecki has been trained by the federal government as an investigator and evaluator of requests for proposals and grants and is a trainer of evaluators on a federal level. He has served on Respondent as a commissioner for nine years. He has served as the chair of the Fraud Prevention Committee and the Insurance Committee and is currently the chair of the Medicaid Committee. Siedlecki has a long, close, extensive, and on-going relationship with Karen Caputo, the owner of AAA and one of the prospective subcontractors identified in Intervenor's proposal at the time he evaluated the proposals. This relationship included: A business association that extends back to 1978, and periods as manager/owner and contractor/subcontractor; Siedlecki's use of free-storage space in a building owned by Caputo at the time of his evaluation; Siedlecki holding a promissory note and receiving payments from Caputo at the time of his evaluation; Co-ownership of a closely-held transportation services corporation, from which both received substantial compensation at the time of his evaluation; Jointly serving as directors for a non-profit corporation; Caputo's previous rentals and purchases of real property from Siedlecki worth hundreds of thousands of dollars; and e. Siedlecki's sharing office space and fax lines, free of any charge or expense, with AAA at the time of his evaluation. Siedlecki saw and communicated with Caputo on an almost daily basis at the time of his evaluation. These communications included discussions about Caputo's intended actions concerning the services requested in the RFP. Other than Siedlecki, no other evaluator had such information or based their evaluation on such information outside of that described in the proposals and at the Oral Presentations. As a result, Siedlecki knew that AAA was performing approximately 50 percent of the Medicaid NET Services in Broward County when he evaluated the proposals from Petitioner and Intervenor. Siedlecki actively considered these facts and information obtained outside of the RFP and the evaluation process when conducting his review of the submitted proposals. In view of Siedlecki's relationship with Caputo and AAA, there was an appearance of a conflict of interest. He should have recused himself from the evaluation committee when this information became known to him. Evaluation of Proposals The RFP provided a point break-down and a maximum score of 200 points for the evaluation of the proposals. The Technical Proposal points were divided into three categories. These categories were Executive Summary, worth 10 points; Management Plan, worth 60 points; and Technical Plan, worth 30 points. The Oral Presentation points were divided into two categories. These categories were Presentation, worth 70 points, and Questions, worth 30 points. In addition to the points outlined in the RFP, the evaluation committee, subsequently, added evaluation criteria and decided to assign various and previously undisclosed weights to sub-divide the Management Plan points into eight separate criteria which would be evaluated. These newly-weighted criteria were not provided to the Proposers. Nevertheless, the evaluators did not uniformly rate the Technical Proposals as some gave experience credit under the same criteria for all persons described in the Proposer team and others did not. More importantly, it is clear that Siedlecki applied the same criteria differently as to each proposal. The activities of the evaluation committee were also not "open" as some evaluator discussions were not publicly noticed at all and others did not have the required minutes taken to comply with Florida's Sunshine Law requirements. The same evaluation committee also evaluated the Oral Presentations. These evaluations were based on two general point categories as described in the RFP. No uniform or specific criteria were established for use in evaluating the Oral Presentations. The Oral Presentation evaluations were based solely on the subjective criteria of each individual evaluator. The RFP required the committee responsible for evaluating the proposals to "independently evaluate the oral presentations on the criteria established [in this section of the RFP] to assure that orals [were] uniformly rated." Oral Presentations by Petitioner and Intervenor took place on January 19, 2005. During its evaluation of the Oral Presentations, the evaluation committee did not ask the Proposers a uniform set of questions or, otherwise, use uniform criteria in conducting their evaluations. The evaluation committee did not consider cost as a criteria in the evaluation of the proposals submitted to perform Medicaid NET Services in Broward County, since the RFP called for a set price contract. Siedlecki never read the entire RFP before conducting his evaluations. Specifically, Siedlecki was unaware of the definition of "Proposer" as contained in the RFP and did not apply such definition to his evaluation of Petitioner's proposal. Had Siedlecki known of the definition of "Proposer" in the RFP, by his own testimony, he would have given Petitioner a much higher score. Siedlecki improperly performed the evaluation of Petitioner's and Intervenor's proposals. This resulted in an inconsistent application of the evaluation criteria. Examples of his faulty evaluation include: Failing to read the entire RFP before the evaluations; Failing to read the entire Proposals while conducting his evaluation; Incorrectly assuming Intervenor and Logisticare, Inc., were the same corporate entity; Failing to inquire about the existing legal relationship between Logisticare, Inc., and Intervenor and, yet, granted Intervenor full credit for past work experience it did not actually possess; Applying the same evaluation criteria differently to Petitioner and Intervenor as a result of his faulty assumptions and lack of inquiry; and Failing to consistently apply the term "Proposer" as defined in the RFP, when evaluating the proposals submitted by Petitioner and Intervenor. Siedlecki testified that because of the way that he evaluated Petitioner's proposal, he arrived at a lower score than Petitioner actually deserved. At the conclusion of the flawed evaluation process and out of a possible 200 points to be awarded, the evaluation committee arrived at the following scores for Petitioner and Intervenor: Ms. Bacot: Petitioner - 184 Intervenor - 171 Ms. Somerset: Petitioner - 170 Intervenor - 174 Mr. Siedlecki: Petitioner - 111 Intervenor - 200
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that Respondent, Commission for the Transportation Disadvantaged, reject the award to Intervenor, direct that this matter be re-bid or re-procured through a properly drafted ITB or RFP, and exclude as evaluators all persons with real or apparent conflicts of interest. DONE AND ENTERED this 20th day of May, 2005, in Tallahassee, Leon County, Florida. S DANIEL M. KILBRIDE 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 20th day of May, 2005. COPIES FURNISHED: Jeffrey D. Jones, Esquire Tom Barnhart, Esquire Department of Legal Affairs The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050 E. A. "Seth" Mills, Jr., Esquire Mills, Paskert, Divers, P.A. 100 North Tampa Street, Suite 2010 Tampa, Florida 33602 Geoffrey D. Smith, Esquire Kellie D. Scott, Esquire Blank, Meenan & Smith, P.A. 204 South Monroe Street Post Office Box 11068 Tallahassee, Florida 32302-3068 Lisa M. Bacot, Executive Director Commission for the Transportation Disadvantaged 605 Suwannee Street Rhynes Building, Mail Station 49 Tallahassee, Florida 32399-0450
The Issue The central issue in this case is whether B&L is the lowest responsive bidder to HRS Medicaid transportation services RFP for fiscal year 1988-89.
Findings Of Fact Based upon the testimony of the witnesses and the documentary evidence received at the hearing, I make the following findings of fact: On March 18, 1988, HRS issued a request for proposal (RFP) for contractual services, the Medicaid transportation services for fiscal year 1988- The proposals were to be opened April 15, 1988. The contract manager for the Medicaid Program Office was identified as Vera Sharitt. All questions pertaining to the provisions of the RFP were to be in writing addressed to Ms. Sharitt. The RFP identified seven categories of transportation which required response. In the instant case, NEMT, AAA, and B&L all submitted proposals for each of the categories. All proposals were first reviewed to determine whether or not they met the requirements set forth in the fatal items checklist. This review was performed by Vera Sharitt. All bid responses were deemed in compliance with the fatal items and were, therefore, submitted to the five member evaluation committee for further review. Committee members then used a ating sheet to determine which proposal was the most advantageous to the state. The evaluation committee weighed each proposal on the basis of five criteria: proposal requirements; response to statement of purpose/need project understanding; method of service provision; references; and rate analysis. The proposal receiving the highest total of points was deemed the most advantageous to the state. In each of the seven transportation categories, B&L received the highest total of points from the evaluation committee members. The evaluation committee met on May 16, 1988. Present at this meeting were: Kent Rice, Connie Klein, Magna Salas, Susan Pippitt, Urban Myers, Vera Sharitt, and Cathy N. D'Heron. In response to a suggestion made by Vera Sharitt, the committee members agreed to assign set points to the rate analysis portion of the rating sheet. Accordingly, the lowest rate was given 10 of the possible 10 points, the second lowest was given 5 of the possible 10 points, and the third lowest was given 1 of the possible 10 points. In the event of a tie, both proposals received the same points. The RFP had included a sample rating sheet which had specified that the rating analysis would be computed on a 0-10 scale. The committee determined that the proposed assignment of 10-5-1 was within the published range but that it would be unfair to give the highest rate 0 points. At no time during the evaluation committee meeting did Vera Sharitt improperly influence or attempt to influence the members' scoring of points. Ms. Sharitt did not interfere with the evaluation process nor did she attempt to favor one proposal over another. Further, there is no evidence which suggests that Ms. Sharitt improperly influenced or attempted to influence evaluation committee members outside of the meeting conducted on May 18, 1988. The fatal items checklist for the RFP asked six cuestions which related to information required to complete a proposal. The absence of any one of the required items would have resulted in the disqualification of the proposal. At issue in this case are the following provisions of the fatal items: Was the fatal items envelope received by the time and date specified in the RFP? Ambulatory Services: Did the proposer submit a copy(ies) of taxi and/or limousine permits? Did the proposer submit proof of registration from the Florida Division of Motor Vehicles? Wheelchair/Stretcher Van Services: Did the proposer submit a copy of county licensure? Did the proposer submit proof of vehicle liability insurance which included insurer name, address and phone number, policy number, vehicles covered as identified by vehicle identification number, liability limits and policy effective/expiration dates? Did the proposer submit a statement that the proposer agrees to all contract terms and conditions? Did the proposer submit the statement regarding no involvement? In reviewing the information submitted under the fatal items checklist, Vera Sharitt determined that if the information sought could be found in any of submitted materials, the proposer would be deemed qualified. Thus, in the case of B&L, Ms. Sharitt found that the insurance coverage for the vehicles, which named B&L as the insured, corresponded to the vehicles identified on the vehicle registrations submitted. Having made the connection to relate proposer to insurance and vehicles, the actual ownership of the vehicles (in this case in the name of a third or fourth entity) Ms. Sharitt deemed to be unimportant. The same approach was applied to the submittals made by AAA and NEMT. The RFP did not require that vehicles identified in a proposal be titled in the name of the proposer. No proposer challenged the terms of the RFP or the fatal items checklist. All three proposers, NEMT, AAA and B&L, complied with the fatal items requirements as consistently reviewed by Ms. Sharitt. Based upon the terms of the RFP and the fatal items checklist, Ms. Sharitt's review and finding that all proposers were qualified was reasonable.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That the Department of Health and Rehabilitative Services enter a final order awarding the contract for Medicaid transportation services, fiscal year 1988-89, to B & L Services, Inc. DONE and RECOMMENDED this 16th day of September, 1988, in Tallahassee, Florida. JOYOUS D. PARRISH Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 16th day of September, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NOS. 88-3157BID, 88-3158BID Rulings on Proposed Findings of Fact submitted by Petitioner, NEMT: Paragraph 1 is rejected as contrary to the weight of the evidence submitted, argumentative and a conclusion of law erroneous to the facts of this case. Paragraph 2 is rejected as contrary to the weight of the evidence submitted. Paragraph 3 is rejected as contrary to the weight of the evidence submitted. Paragraph 4 is rejected as irrelevant, immaterial or contrary to the relevant evidence submitted. Paragraph 5 is rejected as irrelevant, immaterial or contrary to the relevant evidence submitted. Paragraphs 6,7,8 and 9 (including all subportions therein) are rejected as irrelevant or contrary to the weight of the credible evidence submitted. Paragraph 10 is rejected as argument or conclusion of law erroneous to the facts of this case. Paragraph 11 is rejected. There is no evidence which would suggest B&L acted as a "front" for another entity or entities. Paragraph 12 is rejected as argument unsupported by the record in this cause. Paragraph 13 is rejected All parties waived any contest of the rating criteria by not timely challenging the terms of the RFP. Further, the terms as applied in this instance have not been arbitrarily or capriciously used to prejudice any proposer. Paragraph 14 is rejected as contrary to the weight of the evidence presented. Paragraph 15 is rejected as argument or a conclusion of law which, although correctly stated, is not applicable to the facts of this case. Paragraphs 16 and 17 are rejected as argument. Paragraph 18 is accepted to the extent it states Robert J. Siedlecki/NEMT Corp. was a qualified bidder; however, to the extent such paragraph concludes the bidder qualified was NEMT, the paragraph is rejected as contrary to the weight of the evidence presented. Rulings on NEMT's findings as to AAA: 1. Paragraphs 1-5 are rejected as contrary to the weight of the relevant and material evidence submitted. It should be further noted that NEMT does not have standing to contest the award to B&L given the finding that AAA did, in fact, comply with the fatal items checklist. Being a qualified proposer, AAA stood next in line to receive the contract not NEMT. The submissions made by NEMT with the proposed findings of fact have not been considered as evidence in this case. Rulings on the proposed findings of fact submitted by AAA: Inasmuch as this petitioner's proposed findings were not in numbered paragraphs, ruling has been made based upon the order of presentation. The first paragraph being considered paragraph 1. Paragraph is accepted as the applicable rule governing the fatal items checklist. Paragraph 2 is rejected as contrary to the weight of the evidence. Paragraph 3 is rejected as irrelevant, immaterial or contrary to the weight of the credible, relevant evidence. Paragraph 4 is rejected as irrelevant, immaterial or contrary to the weight of the evidence; additionally, such conclusion falls outside of the scope of this petitioner's contest. Paragraph 5 is rejected as contrary to the weight of the evidence. Ms. Sharitt also testified that the connection between B&L and the other entities was based upon insurance documentation submitted with the proposal. Paragraph 6 is rejected as a conclusion of law which, while correctly stately, is not a finding of fact and which has been erroneously applied. Paragraph 7 is rejected as irrelevant, immaterial or contrary to the evidence presented. The first five sentences of paragraph 8 are accepted. The balance of the paragraph is rejected as contrary to the weight of the credible evidence submitted. Paragraph 9 is rejected as unsupported by the record or contrary to the evidence submitted. Rulings on the proposed findings of fact submitted by HRS: Paragraphs 1-10 are accepted. To the extent paragraph 11 conforms with the findings made in paragraphs 5, 6, & 7 they are accepted. Otherwise the paragraph is rejected as contrary to the evidence presented. Paragraphs 12-14 are accepted. Rulings on the proposed findings of fact submitted by B&L: It is presumed the submittal reviewed below was from B&L; however, no identifying statement was included in the text of the proposal itself. The presumption is based on the fact that all other submittals were clearly identified by party name. Paragraphs 1-5 are accepted. Paragraph 6 is accepted see findings made in paragraph 8 as to the exact language of the fatal items checklist. Paragraph 7 is accepted. Paragraphs 8, 9, and 10 are accepted. The first two sentences of paragraph 11 are accepted; the balance of the paragraph is rejected as irrelevant or immaterial to the issues framed in this cause. COPIES FURNISHED: Robert J. Siedlecki 5890 Rodman Street Hollywood, Florida 33023 Brian M. Berman 2310 Hollywood Boulevard Hollywood, Florida 33020 Lawrence F. Kranert, Jr. Department of Health and Rehabilitative Services 201 West Broward Boulevard Fort Lauderdale, Florida 33301 John M. Camillo 301 Southeast 10th Court Fort Lauderdale, Florida 33316 Gregory L. Coler, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue Are the Medicaid payment claims of Respondent Alternative Care Staffing, Inc. (Alternative), for companion care services authorized by support plans and waiver support coordinators and provided in the community to recipients residing in group homes reimbursable services under the Home and Community-Based Wavier (HCB Waiver) program? Are Alternative’s Medicaid service claims for allegedly unauthorized activities reimbursable under the HCB Waiver program, or may the Agency for Health Care Administration (Agency) recoup payment for the claims? Did Alternative receive payment for services provided by ineligible staff? Are Alternative’s allegedly overlapping Medicaid service claims actually overlapping? Did the Agency meet: (1) its burden of proof for imposing fines, and (2) its statutory obligations before imposing fines? Whether or how much, due to mitigating factors, the Agency can fine Alternative for the items identified as overpayments in Agency’s Exhibit 6, Amended Final Audit Report dated May 25, 2011; subsequently, modified in Agency’s Exhibit 7, Current Overpayment Calculations and Agency Work Papers; and finally modified during the hearing as shown in Exhibit A to the proposed recommended orders and this Recommended Order.
Findings Of Fact Background The Medicaid program is a federal and state partnership that pays the costs of providing health care and related services to qualified individuals, including people with developmental disabilities. The Agency is the single state agency authorized to make payments for medical assistance and related services under Florida’s Medicaid program. § 409.902, Fla. Stat. (2013). The Legislature charged the Agency with overseeing the activities of Medicaid recipients and their providers and with recouping overpayments. §§ 409.913 and 409.913(1)(e), Fla. Stat. Florida law defines an “overpayment” as “any amount that is not authorized to be paid by the Medicaid program whether paid as a result of inaccurate or improper cost reporting, improper claiming, unacceptable practice, fraud, abuse, or mistake.” During the relevant time period, Florida law defined “abuse” as “provider practices that are inconsistent with generally accepted business or medical practices and that result in an unnecessary cost to the Medicaid program or in reimbursement for goods or services that are medically unnecessary, upcoded, or fail to meet professionally recognized standard of health care.” § 401.913(1)(a), Fla. Stat. “Abuse may also include a violation of state or federal law, rule or regulation.” (Pet. Ex. 11, Provider General Handbook (Jan. 2007), p. 1083; Pet. Ex. 11, Provider General Handbook (July 2008), p. 1092). This definition is much broader than the everyday definition of abuse as a “corrupt practice or custom.”1/ “Overpayment includes any amount that is not authorized to be paid by the Medicaid program whether paid as a result of inaccurate or improper cost reporting, improper claims, unacceptable practices, fraud, abuse or mistake.” (Pet. Ex. 11, Provider General Handbook (Jan. 2007), p. 1083; Pet. Ex. 11, Provider General Handbook (July 2008), p. 1092). As part of the Agency’s fulfillment of the statutory directive to investigate overpayments, the Bureau of Medicaid Program Integrity (MPI) in the Office of the Inspector General routinely conducts audits. A Medicaid provider is a person or entity that has voluntarily chosen to provide and be reimbursed for goods or services provided to eligible Medicaid recipients. A provider’s participation requires an agreement with the Agency to provide services. Alternative has been a Medicaid provider since 2004. Florida’s Medicaid program includes a program for people with developmental disabilities. It uses the state and federal Medicaid funds for home and community-based services. The program is known as the Home and Community-Based Waiver or HCB Waiver. Florida’s Agency for Persons with Disabilities (APD) administers the HCB Waiver pursuant to statute. APD is responsible for the day-to-day operation of the HCB Waiver. APD is the primary point of contact and source of information for HCB Waiver providers, such as Alternative. The Interagency Agreement (Agreement) between the Agency and APD establishes the relationship between the two agencies and their obligations and roles in this mutual undertaking. Alternative and other providers are not parties to the Agreement The Agreement’s Delegation of Authority for Waiver Operation, Section B(2) (R. Ex. B), states: Pursuant to the approved development disabilities home and community-based waivers, [the Agency] has authorized [APD] to operate the waivers on a day-to-day basis, in accordance with this agreement. This agreement memorializes an arrangement under which APD will operate and make appropriate decisions based upon approved policy on behalf of and under the oversight of [the Agency]. The Agreement obligates both agencies to operate the waiver in accordance with laws, rules, regulations, and handbooks. Section B(4)(c) of the Agreement requires the Agency to coordinate with APD “on all [waiver] administrative rules, amendments to rules, policies or regulations that pertain to the waiver.” Section B(4)(g) places responsibility for recouping overpayments to HCB Waiver providers on the Agency. Section B(4)(a) reserves to the Agency “final authority on all policies, procedures, rules, regulations, manuals, handbooks, and statewide quality assurance monitoring procedures pertaining to the development disabilities waivers.” Section B(5)(e) requires APD to advise the Agency in advance of any proposed regulations or manuals developed by APD. Section 5(g) obligates APD to assure payments to “providers are reconciled based upon individual cost plans in the DD [Developmental Disability] and F/SL [Family and Support Living] Waiver programs and are within the annual program budgets.” Under the HCB Waiver, recipients working with independent waiver service coordinators plan their services according to the recipient’s needs. The result is a detailed support or cost plan. The support plan articulates the services and the goals for each type of service needed. It is updated annually. A service authorization is developed from each support plan to specify the amount, by time and dollars, approved for each type of service. The service authorization documents also identify which Medicaid-contracted providers will provide each of the approved services. APD reviews and approves the support plans. The 2007 and 2008 versions of the Developmental Disabilities Services Coverage and Limitations Handbook (DD Handbook) specify in chapter 2-5 that in order for a recipient to receive a service, the service must be identified on the recipient’s support plan approved by APD. Providers, like Alternative, rely upon the support plans and service authorizations to determine what services to provide and if the services are authorized for payment. At all times material to this case, Alternative has been a provider of HCB Waiver services to Medicaid recipients, pursuant to a Medicaid provider contract with the Agency and a Medicaid Waiver Services Agreement with APD. Alternative provides most services through independent contractors. The complex requirements governing providers in the Medicaid program are explicated in rules of the Agency and in the Medicaid Provider General Handbook, adopted by rule. More requirements for providers in the HCB Waiver are imposed by rules of APD and the DD Handbook, developed by APD and the Agency, and adopted by Agency rule. For the time period in this case, the June 2007 and June 2008 versions of the Medicaid Provider General Handbook were in effect. For the time period of this case, the June 2007 and December 2008 versions of the DD Handbook were in effect. The Chase The Medicaid payment process differs from a typical commercial transaction. Robi Olmstead, administrator for the Agency’s Office of the Inspector General, Medicaid Program Integrity, described the process as “pay and chase.” The Agency accepts claims for payment at face value with very little review and promptly pays them. But the Agency has the authority to review claims long after payment and seek recoupment, “chase,” if it determines the claim was not proper. The Agency’s MPI office does the “chasing” by conducting provider audits. In 2011, the Agency audited Alternative’s claims for the period January 1, 2008, through June 30, 2009. Kristen Koelle, who conducted the audit, selected the time period to take into account the fact that Alternative was a relatively new provider and had a 12-month window of opportunity to submit new claims or void submitted claims. Typically, the Agency audits a two-to-three year period of payments for providers with a longer history. On November 4, 2010, the Agency sent a letter requesting records from Alternative and advising that it was conducting an audit. The letter sought records for 35 of Alternative’s 85 Medicaid recipients to use as a cluster sample. Alternative responded promptly and provided very organized records. The majority of issues identified in the audit involved documentation, not a failure to provide services. The Agency uses a statistical formula to extrapolate overpayments from the records and claims of the samples. The Agency issued a Preliminary Audit Report concluding that Alternative owed $719,680.09 for overpayments for wrongly made and paid claims. After a typical process of communication, supplementation of records, and review of documents, the Agency issued a Final Audit Report reducing the amount to $452,821.65. By the time the hearing started, the Agency had reduced the amount in an Amended Final Audit Report to $155,747.97 and had reduced the proposed fine from $90,564.33 to $31,149.59. By law, the Agency’s audit report creates prima facie proof of overpayments, which a provider has a right to dispute. In this case, there is no dispute about the acceptability or application of the Agency’s statistical formula for extrapolation. The disputes are about which representative claims are properly input into the extrapolation formula. During the hearing, Alternative agreed to several additional claims. The parties jointly prepared an Appendix to their proposed recommended orders identifying the remaining disputed claims. It is attached as Exhibit A to this Recommended Order and adopted by reference. These are the claims the Agency maintains should be used in the formula to determine the full amount of the asserted overpayments. Alternative disagrees. The remaining claims fall into four categories. They are: (1) companion services provided to recipients living in group homes; (2) unauthorized activities; (3) overlapping of support services; and (4) ineligible staff. Services are measured in “units of service” of 15 minutes each. Companion Services for Recipients Living In Group Homes During the time period when the June 2007 DD Handbook was in effect, Alternative collectively provided and was paid for 640 units of service to four waiver recipients who resided in licensed residential facilities or group homes. The recipients are identified in this record as Recipients 7, 13, 14, and 25. Companion services are non-medical care supervision and socialization activities provided to an adult individually. They may be activities such as assistance with grocery shopping, housekeeping, or visiting the library. (DD Handbook, 2007, Chap. 2-27). The June 2007 version of the DD Handbook states: “Recipient’s [sic] living in licensed residential settings, excluding foster homes, are not eligible to receive these [companion] services.” (DD Handbook, 2007, Chap. 2-28). The December 2008 version of the DD Handbook states that companion care services may be provided to residents of a licensed group or foster home. APD approved the support plans for Recipients 7, 13, 14, and 25. The plans plainly stated that each recipient lived in a residential living facility (group home). The support plans also plainly identified companion services among the services to be provided. (Pet. Ex. 8, pp. 491-501; 591-604; 628-636; and 857-864.) In addition, each recipient’s waiver support coordinator provided a service authorization for the companion services. Alternative provided companion services as indicated in the APD approved support plans and the service authorizations. Alternative’s consistent experience with providing companion services to residents in living facilities was that APD approved and paid for providing those services under the June 2007 DD Handbook. Because of the issues raised in the audit, in an e-mail dated May 19, 2011, Joyce Rowe, president of Alternative, wrote Denise Oetinger, regional program supervisor for APD, asking about authorized services during the period January 2008 to June 2009. Ms. Oetinger was an APD liaison to providers who Alternative relied upon to explain the many requirements and conditions of the DD Handbook. Ms. Rowe’s e-mail said: In our preliminary [Agency audit] review we had four individuals which Alt Care received services authorizations for that lived in a group home [stet]. We provided the services out in the community. Kristen Koelle with AHCA Audit Recovery stated in the handbook of limitations up to 12/3/2008 we were not allowed to provide companion services to any individual living in a licensed facility. Of course they wanted to recoup thousands of dollars from our company. Do we have any special provisions or documentation why we were getting these service authorizations sent to us and getting paid for a service which was unauthorized? I called one of the support coordinators because they are responsible in a sense for sending the authorizations. I was told to e-mail you in hope for some answers. Ms. Oetinger replied2/: Ms. Rowe, Companion can be provided to an individual living in a licensed facility, but it must be delivered in the community. So they must leave the home they live in and do something outside the home. This has not changed from handbook to handbook. I will ask that our inter-agency liaison communicate with Kristen Koelle. Thank you for bringing this to our attention and I will get back to you as I have more information. In light of the Agreement, the way in which the Agency and APD held themselves out to providers, the relationship between APD and providers, the practice of relying upon APD for guidance about the HCB Waiver, the approval of the support plans, and the subsequent issuance of service authorizations, Alternative reasonably relied upon APD-approved support plans and the waiver support coordinator-provided service authorizations when providing and obtaining payment for companion services to Recipients 7, 13, 14, and 25. In addition, the weight of the persuasive evidence establishes that Recipients 7, 13, 14, and 25 are the only recipients living in a licensed residential facility for which Alternative received payments for companion services provided during the audit period. Consequently, using those claims to extrapolate to a recipient-wide population is not factually supported. Ineligible Staff Alternative employee Ben Alvarez provided personal care assistance and companion services to Recipient 3. He also provided in-home support services to Recipient 15. For the time period during which Mr. Alvarez provided personal care assistance services, the December 2008 DD Handbook was in effect. Chapter 1-25 required individuals providing the service to “have at least one year of experience working in a medical, psychiatric, nursing or childcare setting or working with recipients who have a developmental disability.” It permitted substitution of specified educational achievements for the experience. Alternative did not have documentation that Mr. Alvarez had the specified alternative educational achievements. It did not have documentation that Mr. Alvarez had worked in a medical, psychiatric, nursing, or childcare setting. Alternative did have documentation that Mr. Alvarez had six years’ experience caring for an adult with developmental disabilities, providing services, including personal care, hygiene, grooming, bathing, and feeding. This individual was a relative of Mr. Alvarez. Nothing in the documentation establishes that the relative Mr. Alvarez was caring for was a Medicaid recipient. Deposition testimony establishes that the individual was a waiver recipient at the time of the deposition, February 13, 2014. But it does not establish that he was a recipient at the time Mr. Alvarez provided services. The deposition is also not part of the documentation maintained by Alternative. In sum, the weight of the persuasive evidence shows Alternative did not have documentation that Mr. Alvarez met the experience or substitute educational requirements of chapter 1-25. For the time period during which Mr. Alvarez provided companion services, the December 2008 DD Handbook was in effect. Chapter 1-18 required individuals providing the service to “have at least one year of experience working in a medical, psychiatric, nursing or childcare setting or working with recipients who have a developmental disability.” It also permitted substitution of specified educational achievements for the experience. The weight of the persuasive evidence shows that Alternative did not document that Mr. Alvarez met the experience or substitute educational requirements of chapter 1-18. Chapter 1-23 of the DD Handbook imposes the same experience and substitution education requirements for providers of in-home support services as required for companion and personal care services. As with them, the weight of the persuasive evidence shows that Mr. Alvarez did not meet the experience or substitute educational requirements. An Alternative employee, known as Ora or Paul Richmond, provided 16 units of companion services to Recipient 11 on March 2, 2009. At that time, the December 2008 DD Handbook was in effect. Chapter 1-18, above, established the experience and requirements for providers of the service. Alternative’s documentation establishes that Mr. Richmond lived with, and helped care for, his disabled father from 2006 to 2008. Among other things, he helped his father with cooking, cleaning, laundry, and bill paying. Alternative’s documentation does not identify what disability Mr. Richmond’s father had, and it does not indicate that Mr. Richmond’s father was a Medicaid recipient. The weight of the persuasive evidence shows Alternative did not document that Mr. Richmond met the experience or substitute educational requirements of chapter 1–18. The Agency paid Alternative for companion services provided by Christopher Rose to Recipients 13 and 14. Mr. Rose provided the services during a period governed by the 2007 DD Handbook. The companion provider requirements of chapter 1-18 of that DD Handbook are the same as those of chapter 1-18 of the 2008 version. Alternative’s documentation for Mr. Rose showed that he had worked as a private-duty companion for an individual with retardation for approximately three years. The documentation did not indicate who the individual was, whether the individual was a Medicaid recipient, or where the services were provided. The weight of the persuasive evidence shows Alternative did not document that Mr. Rose met the experience or substitute educational requirements of chapter 1-18. Documented Activity Support for Billing The Agency paid Alternative for 16 units of service for companion services provided to Recipient 6 on March 27, 2008. The sole documented description for the activity involved was “enjoyed attending alternative office party.” It does not document what the activities were or where the party was. Ms. Rowe testified that the party was not accurately described and that the office social was held in Bradenton, Florida, at Bayshore Gardens. But that is not what the documentation shows. The support plan for Recipient 6 provided that the companion provider “will help [the recipient] participate in activities outside of his home. [Recipient] will also explore volunteer opportunities available to him.” This is in support of the larger goal of teaching him to interact in the community. The documentation for the office party does not document a connection between the support plan and the activity. The Agency paid Alternative for 14 units of companion services provided to Recipient 12 on April 16, 2008. The support plan goals for Recipient 12 are to stay home, be active with his family, identify someone to care for him, go out into the community, be involved in community activities, maintain a healthy weight, and maintain good dental health. Alternative’s documentation for the services on April 16 reports only “[a]ss. with indoor activities.” It provides no other descriptions of the activities. The information is not sufficient to determine what relationship, if any, the activities had to the recipient’s goals. Ms. Rowe testified that the recipient had gone to his community clubhouse that day. But that is not what the entry says, in contrast to an April 17, 2008, entry which specified clubhouse activities. In addition, Ms. Rowe was not the service provider and did not provide information about how she knew what that individual did that day. Her testimony was not persuasive. The Agency paid Alternative for 14 units of service for companion services provided to Recipient 12 on April 30, 2008. Alternative’s documentation for the services on April 30, 2008, reports only “[a]ss. with activities at home.” It provides no other descriptions of the activities. The information is not sufficient to determine what relationship, if any, the activities had to the recipient’s community-oriented goals. The Agency paid Alternative for 20 units of service for companion services provided to Recipient 18 on January 7, 2008. The recipient’s support plan for companion services focuses on going out into the community to eat, visit parks, go to places of interest, and attend parties. Alternative’s documentation for the services describes the activities from 1:30 p.m. to 4:30 p.m., as “[p]repare lunch, ate 100%, change underwear, small walk, watch some TV by request, lie for a rest on sofa.” Lunch preparation and changing clothes are not companion services. They are personal care assistance services. The Agency reasonably deducted two units of service for these claims. Also on January 7, 2008, a different provider of companion services describes the activities from 4:30 p.m. to 6:30 p.m., as “watched t.v. [and] chilled out today.” These activities are not activities related to the companion services of the support plan. There is no documentation supporting the claim for payment for the time between 4:30 p.m. and 6:30 p.m. The Agency reasonably denied payment for two units of service for this time period. The Agency paid Alternative for 20 units of service for companion services provided to Recipient 18 on March 1, 2009. The documentation for those services states only: “We stayed in due to weather.” It provides no information about the weather, what activities the recipient engaged in while “in,” or why the weather precluded all community activities. The documentation does not support the claim for billing 20 units of service. Unauthorized Activities The Agency paid Alternative for 12 units of service for in-home support services provided to Recipient 15 on February 21, 2008. The recipient’s support plan described his goals to be advanced by in-home support services as “learn how to better take care of his apartment, cook for himself, clean his apartment, do his laundry, and learn to make independent life decision[s].” Alternative’s documentation describes the day’s activities as “[Recipient] and I went to the library. Then watch [sic] a little TV. I left early because he said he was tired.” Watching television is not an activity within the authorized in-home support services. It is reasonable to reduce the claimed units of service by one to adjust for the time spent providing an unauthorized service. The Agency paid Alternative for 20 units of service for in-home support services provided to Recipient 15 on April 2, 2008. Alternative’s documentation from the caregiver describing the services states: “[Recipient] and I went to the store to pick up several items. Then came back to his place and played dominos.” The weight of the persuasive evidence establishes that there is no connection between playing dominos and the services for which in-home support was authorized. Deducting one unit of service from the services paid for to account for time spent playing dominos is reasonable. The Agency paid Alternative for 20 units of service for in-home support services provided to Recipient 15 on June 25, 2009. The caregiver provided multiple services that day. The documented activities included watching two movies, Bolt and the Spiderwick Chronicles. The weight of the persuasive evidence establishes that there is no connection between watching the movies and the services for which in-home support was authorized. Deducting the claimed units of service to Recipient 15 by one, as the Agency recommends, is a reasonable accounting for the time spent watching the movies. On February 20, 2008, Alternative billed for 32 units of service for companion services for Recipient 26. The support plan for Recipient 26 identifies Alternative as providing the companion services for his goal to “want to do some volunteer work and learn how to socialize with others [sic] people that will not take advantage of me.” Alternative’s documentation for the companion services on February 26, 2008, includes “doing laundry at home and babysitting nephew.” These activities are not within the scope of the support plan for companion services or directed to a related goal. Deducting a unit of service for Recipient 26 on February 20, 2008, by one to account for the laundry and babysitting is reasonable. On January 22, 2008, Alternative billed for 24 units of service for companion services for Recipient 33. The recipient’s support plan lists the following goals that require companion services: “work on building practical skills, making choices, and verbally communicating opinions, wants and needs to others. I want to continue learning to be safe within [t]his community.” Alternative’s documentation to support payment describes the day’s activities as “[t]ook [Recipient] to the Library, [illegible] Target, Dollar, [illegible], watched a movie at his house.” Watching television at the recipient’s house does not fall within the scope of the Recipient’s companion services. Deducting a unit of service for that day by one to account for the time spent watching a movie is reasonable. Overlapping and Unsupported Claims The Agency paid Alternative for respite care to Recipient 16 from noon to 6:00 p.m., 34 units of service, on March 3, 2009. The narrative by Van Greenlaw for the respite care log entry on March 3, 2009, reports: “I arrived today got lunch ready, he went to the gym, came back, plays some of his games, after that he got ready to go to church with [illegible], day ends.” The work hours are changed by strike-throughs to 1:30 p.m. to 6:00 p.m. on another copy of the log. The log does not show the date of the change or who made the change. The personal care assistance service log for March 3 shows Mr. Greenlaw as working from noon to 6:00 p.m. Another copy of the personal care assistance log shows a struck-through revision indicating that personal care services were provided between noon and 1:30 p.m. The log does not show the date of the change or indicate who made the change. The revised service logs and the invoice for the week’s services by Mr. Greenlaw do not reconcile. The invoice shows a total of 2.5 hours (10 units of service) of companion services from 12:30 p.m. to 2:30 p.m. and 4.5 hours (18 units of service) respite care from 2:30 p.m. to 6:00 p.m. (Pet. Ex. 8, p. 752). There are no logs documenting provision of companion care services. Alternative billed for 18 units of respite service for March 3, 2009, and six units of service for companion services, not the personal care assistance services identified in the log. (Koelle, Tr. at 148-149, Pet. Ex. 752). In addition to the reconciliation inconsistency, the invoice has a math error. The actual amount of time between 2:30 p.m. and 6:00 p.m. is only 3.5 hours (14 units of service) for respite care, not the invoiced 4.5 hours. Alternative concedes one hour of overbilling. It offers no explanation for billing for companion services when the only record of services is for personal care and respite care. The documentation only supports billing for 14 units of respite care service on March 3, 2009, for Recipient 16. Therefore, the billable units of service for Recipient 16 on March 3, 2009, should be reduced by 20, from 34 to 14, when applying the Agency’s extrapolation formula. Training of Ora Richmond Alternative hired Ora (Paul) Richmond as a caregiver on February 7, 2009. The first date that there is a record of him providing recipient services is March 2, 2009. Mr. Richmond received his zero tolerance training on March 10, 2009. He received his “Core Competency” training on January 10, 2010. The Agency maintains that Mr. Richmond did not have the training required by the applicable DD Handbook when he provided services on March 2, 2009, and that the 16 units of service for that day should be disallowed. The Agency refers to the December 3, 2008, DD Handbook. The handbook took effect on December 3, 2008. The provision, section 2.1(H), imposing the new zero tolerance training requirement, provided: “All direct service providers hired after 90 days from the effective date of this rule are required to complete the Agency for Persons with Disabilities developed Zero Tolerance Training course prior to rendering direct care services (as a pre-service training activity).” Mr. Richmond was hired less than 90 days from the effective date of the requirement. Section 2.1(G) of the provision requiring “Core Competency” training stated: “All direct service providers are required to complete training in the APD’s Direct Care Core Competencies Training, or an equivalent curriculum approved by APD within 90 days of employment or enrollment to provide the service.” The 90th day after Mr. Richmond’s employment was May 8, 2009. Therefore, he was not in violation of the core competency requirement when he provided services to Recipient 11 on March 2, 2009. However, as determined in Findings of Fact 50 through 52, he did not have the experience required to serve as a caregiver.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency for Health Care Administration recalculate the amounts to be recouped applying the Procedure Codes, units of service, and amount per unit of service, as shown in the Appendix, with the following adjustments: The Agency will not include in recoupment calculations, for the reason that Alternative provided the services to residents of a licensed residential facility, any payments made for companion services provided to Recipients 7, 13, 14, and 25. The Agency will include in recoupment calculations the amounts and units of service paid to Alternative for Mr. Alvarez’s companion and personal care assistance services to Recipient 3 and his in-home support services to Recipient 15, as shown in the Appendix. The Agency will include in recoupment calculations the amounts and units of service paid to Alternative for Mr. Richmond’s services to Recipients 11, as shown in the Appendix. The Agency will include in recoupment calculations the amounts and units of service paid to Alternative for Mr. Rose’s companion services to Recipients 13 and 14, as shown in the Appendix. The Agency will include in recoupment calculations the amounts and units of service paid to Alternative for the 16 units of service shown in the Appendix, as provided to Recipient 6 on March 27, 2008. The Agency will include in recoupment calculations the amounts and units of service paid to Alternative for 14 units of companion service provided to Recipient 12 on April 16, 2008, as shown in the Appendix. The Agency will include in recoupment calculations the amounts and units of service paid to Alternative for 14 units of companion service provided to Recipient 12 on April 30, 2008, as shown in the Appendix. The Agency will include in recoupment calculations the amounts and units of service paid to Alternative for four units of service on January 7, 2008, to Recipient 18. The Agency will include in recoupment calculations the amounts and units of service paid to Alternative for 20 units of service on March 1, 2009, to Recipient 18, as shown in the Appendix. The Agency will include in the recoupment calculations the amounts and units of service paid to Alternative for one unit of in-home support service provided on February 21, 2008, to Recipient 15. The Agency will include in the recoupment calculations the amounts and units of service paid to Alternative for one unit of in-home support service provided on April 2, 2008, to Recipient 15. The Agency will include in the recoupment calculations the amounts and units of service paid to Alternative for one unit of service of in-home support services provided on June 25, 2009, to Recipient 15. (This should not be cumulative to the inclusion in the calculation of all 20 units of service that day due to an ineligible staff providing the services.) The Agency will include in the recoupment calculations the amounts and units of service paid to Alternative for one unit of companion service provided on February 20, 2008, to Recipient 26. The Agency will include in the recoupment calculations the amounts and units of service paid to Alternative for one unit of companion service provided on January 22, 2008, to Recipient 33. The Agency will include in the recoupment calculations the amounts and units of service paid to Alternative for 20 hours of service provided on March 3, 2009, for Recipient 16. The Agency will not impose a sanction upon Alternative. Jurisdiction is reserved to determine costs and interests, if the parties are not able to agree upon them and to consider a challenge, if any, to the extrapolation based upon the findings and conclusions of this Recommended Order. DONE AND ENTERED this 28th day of July, 2014, in Tallahassee, Leon County, Florida. S JOHN D. C. NEWTON, II Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 28th day of July, 2014.
The Issue The issue is whether Petitioner is eligible for the receipt of general revenue funds in the categories of homemaker services and equipment repair and replacement.
Findings Of Fact Petitioner was born on July 11, 1953. She suffers from cerebral palsy. She received special education for several years. For 11 years, she has worked two and one-half days weekly in the Dade County State Attorney's Office, where she mails out orders. Petitioner lives by herself in a home that she owns. Her disability interferes with walking. She entered the hearing room by placing her outstretched arms across her mother's shoulders, against which she placed her weight that her immobilized legs could not bear. Petitioner frequently falls. When walking without the assistance of another person or device, Petitioner presses her arms against a wall for the necessary support. For the last 12 years, Petitioner has used a three- wheeled scooter with a small electric motor to ambulate. This device has proved superior to crutches, which "get away from me." Petitioner has used the scooter to get to the physician's office, take out the garbage from her home, and perform her work in the State Attorney's Office. Seven months ago, the scooter broke. Petitioner has previously had the scooter repaired three times; her present scooter is four years old. The two batteries remain good, but the motor has become inoperative. No longer able to use the scooter at work, Petitioner sometimes falls down as she tries to walk along the walls. When this happens, a coworker brings her a chair so she can get back up. Recently, during a bomb threat, a coworker had to wheel Petitioner out of the building using an executive chair. In the past, Petitioner has obtained monetary support from her mother. However, her mother has recently retired and is now living on a pension of $800 monthly. Petitioner's disabilities prevent her from performing common housekeeping chores like mopping floors and putting clothes in the washer. Able to do a limited amount of these tasks, Petitioner has long relied on her daughter to perform the portion of these tasks that Petitioner cannot perform. However, her daughter is 19 years old and has moved out to attend college, so she is no longer available to perform these tasks. Petitioner's 65-year-old mother cannot do household chores due to an arthritic shoulder. More than anything else, Petitioner seeks limited assistance to achieve maximum independence. Unable to afford special transportation services and without her scooter, Petitioner now mostly watches television at home alone. During her one-hour lunch break, Petitioner is no longer able to leave the building. Petitioner became a client of Respondent in August 2001. As conceded by Respondent's sole witness, Petitioner is otherwise eligible for the services that she seeks, except that sufficient funds are not available. As reflected in the Developmental Disabilities Hearing Request, Petitioner has sought services funded by general revenue funds, not Medicaid Waiver funds. In support of its denial of services based on funding limitation, Respondent has relied upon spending-plan criteria contained in Respondent Exhibit 1. Respondent Exhibit 1 details a five-part prioritization schedule for the provision of services. In order, the following persons are served: persons who were clients as of July 1, 1999; members of the class action styled Cramer v. Bush; persons in crisis (estimated at 10 new clients monthly statewide); persons discharged from the Mentally Retarded Defendant Program; and persons who have become clients since July 1, 1999. Based on the present record, Respondent's reliance upon Respondent Exhibit 1 is misplaced. The present record suggests that the five-part prioritization schedule described in the preceding paragraph is for persons seeking Medicaid Waiver services, not General Revenue funds. For instance, immediately following the fifth priority, the document reveals that the schedule is for Medicaid Waiver clients when the document states: "In order to serve the estimated additional 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." The testimony of Respondent's sole witness relied on Respondent Exhibit 1, which appears on its face not to govern Petitioner's request for services. Thus, Respondent's evidence of insufficiency of funds is itself insufficient.
Recommendation It is RECOMMENDED that the Department of Children and Family Services enter a final order granting Petitioner's requests for homemaker and equipment repair and replacement services. DONE AND ENTERED this 3rd day of July, 2002, in Tallahassee, Leon County, Florida. ROBERT E. MEALE 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 3rd day of July, 2002. COPIES FURNISHED: 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 Veronica Roker 2282 Northwest 152nd Street Opa Locka, Florida 33054 Hilda Fluriach District 11 Legal Counsel Department of Children and Family Services 401 Northwest 2nd Avenue Suite N-1014 Miami, Florida 33128
The Issue Whether Respondent, a Medicaid provider, committed the violations alleged in the agency action letter dated March 14, 2011, and, if so, the penalties that should be imposed.
Findings Of Fact At all times relevant to this proceeding, Respondent has been a provider with the Florida Medicaid Program and has had a valid Medicaid Provider Agreement with Petitioner. Petitioner is the agency of the State of Florida charged with the responsibility of administering the Florida Medicaid Program. At all times relevant to this proceeding, Respondent was subject to all applicable federal and state laws, regulations, rules, and Medicaid Handbooks. Respondent is required to comply with the Florida Medicaid Provider General Handbook (the General Handbook). The General Handbook requires a provider to have medical documentation that justifies the necessity of services provided to a recipient. The General Handbook advises that sanctions may be imposed if appropriate documentation is not kept. Respondent is an "Assistive Care Services" provider under the Florida Medicaid Program and is required to comply with the "Assistive Care Services Coverage and Limitation Handbook" (ACS Handbook). The ACS Handbook requires that each recipient of Assistive Care Services from the Florida Medicaid Plan have a RSP, and provides, in relevant part (at Petitioner's Exhibit 7, page 39): Every [Assistive Care Services] recipient must have a service plan completed by the [Assistive Care Services] service provider. . . . The ALF [is] responsible for ensuring the service plan is developed and implemented. The ACS Handbook further requires (at Petitioner's Exhibit 7, page 40): The Resident Service Plan for Assistive Care Services (AHCA-Med Serv [sic] Form 036) must be completed within 15 days after the initial health assessment or annual assessment, be in writing, and based on information contained in the health assessment. . . . The ACS handbook further provides (at Petitioner's Exhibit 7, page 40), that both the recipient (or the recipient's guardian or designated representative) and the ALF administrator (or the person designated in writing by the administrator) must sign and date the RSP. The RSP is considered complete as of the last date signed by either party. The provider (in this case Respondent) is responsible for timely completing the RSP for each Medicaid recipient in its facility. Inspector Marie Josue conducted an on-site visit to Respondent's premises on February 1, 2011. At the time of that inspection, Respondent reviewed a sample of ten RSPs for ten residents who received Assistive Care Services from the Florida Medicaid Program. Two of those ten RSPs had been timely signed and dated by the resident (or the resident's guardian or designee) and by Respondent's administrator (or the administrator's designee). The remaining eight RSPs had been timely signed and dated by the resident (or the resident's guardian or designee), but each had not been signed or dated by Respondent's facility administrator (or the administrator's written designee). Each RSP pre-dated February 1, 2011, by more than 15 days. The respective health assessments that formed the basis for each RSP occurred between March 23 and December 25, 2010. Respondent subsequently provided Ms. Josue with certain records that she had requested, including copies of the eight RSPs at issue in this proceeding. When she reviewed those records, Ms. Josue discovered that Respondent's administrator had signed and dated each previously unsigned RSP on February 1, 2011. Those signings by the administrator were untimely. Ms. Josue forwarded the results of her investigation to Mr. Dozier with a recommendation that Respondent be sanctioned for violating the provisions of section 409.913(15)(e), Florida Statutes, by the imposition of a $1,000.00 fine for each of the eight violations pursuant to Florida Administrative Code Rule 59G-9.070(7)(e). When she made her recommendation, Ms. Josue understood that the cited rule required a minimum fine of $1,000.00 per violation. Mr. Dozier accepted that recommendation and prepared the agency action letter dated March 14, 2011. Mr. Dozier consulted with two of his fellow administrators before concluding that the fine recommended by Ms. Josue was appropriate. He testified that he could have charged Respondent with violating section violating section 409.913(15)(d), which could have resulted in an administrative fine in the amount of $20,000.001/ Mr. Dozier considered an administrative fine in the amount of $8,000.00 to be more appropriate. Based on services provided to Medicaid patients pursuant to approved RSPs, Respondent submits claims to the Florida totaling between $6,450.00 and $9,200.00 per month. Petitioner routinely pays those claims. Each RSP at issue in this proceeding complied with the ACS Handbook except for the failure of the facility administrator (or designee) to timely sign the eight RSPs. RSPS are the guides to the services that will be provided by Respondent and reimbursed by the Medicaid Program by Petitioner. The requirement that the administrator (or designee) sign each plan is an effort to combat fraud. There was no evidence that the failure to sign the eight plans at issue in this proceeding was more than an error. Specifically, there was no evidence of fraud. There was no allegation that the lack of the administrator's signature on the eight plans at issue had any effect on the care provided to the eight Medicaid patients. Ms. Pace has been Respondent's administrator for over 13 years. Ms. Pace is familiar with RSPs and the rules and regulations governing the Florida Medicaid Program. Ms. Pace knew that the RSPs must be completed within 15 days of the assessment by a physician. Ms. Pace knew that the patient (or designee) and the administrator (or designee) must sign the RSP for it to be complete. Ms. Pace acknowledged that the eight RSPs at issue in this proceeding were not signed by anyone on behalf of the provider until February 1, 2010. Ms. Pace had designated a subordinate to sign the eight PSAs at issue in this proceeding on behalf of the provider. She had no explanation why those RSPs were not timely signed by anyone on behalf of the provider.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Agency for Health Care Administration enter a final order finding La Hacienda Gardens, LLC, guilty of the eight violations of section 409.913(15)(e) alleged in the agency action letter dated March 14, 2011. It is further recommended that the final order impose administrative fines in the amount of $1,000.00 per violation for a total of $8,000.00. S DONE AND ENTERED this 1st day of February, 2012, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 1st day of February, 2012.
The Issue The issues in this case are whether Petitioner received Medicaid overpayments, and, if so, what is the aggregate amount of the overpayments.
Findings Of Fact The Parties Respondent, the Agency for Health Care Administration, is the single state agency charged with administration of the Medicaid program in Florida under Section 409.907, Florida Statutes. Petitioner, The Doctor's Office, was a Florida corporation approved by the Agency to provide group Medicaid services. At all times relevant to this matter, Petitioner was owned entirely by non-physicians who employed salaried physicians to provide Medicaid services. Petitioner, at all times relevant to this matter, offered physician services to Medicaid beneficiaries pursuant to a contract with the Agency under provider number 371236P-00. Petitioner, pursuant to the specific terms in the contract with the Agency, agreed to abide by the Florida Administrative Code, Florida Statutes, policies, procedures, manuals of the Florida Medicaid Program, and Federal laws and regulations. Petitioner, pursuant to its contract with the Agency, agreed to only seek reimbursement from the Medicaid program for services that were "medically necessary" and "Medicaid compensable." The Audit In mid-1996, the Agency, pursuant to its statutory responsibility, advised Petitioner that it intended to audit Petitioner's paid Medicaid claims for the alleged medical services it provided between July 1, 1994 and June 30, 1996. In September 1996, the Agency conducted an initial audit site visit, and randomly selected 61 patient files for review. The complete patient files, provided by Petitioner, were reviewed by Sharon Dewey, a registered nurse consultant and Agency employee, as well as Dr. Solenberger, a physician consultant and Agency employee. In accordance with its procedure, the Agency determined that Petitioner had submitted a total of 580 claims for reimbursement relating to the 61 patient files and had received full payment from the Medicaid program for each claim. On March 3, 1997, the Agency issued a Preliminary Agency Audit Report (PAAR), and advised Petitioner that it had over-billed Medicaid and received an overpayment from the program. Shortly thereafter, the Agency auditors, Dr. Solenberger and Ms. Dewey, met with Frank Colavecchio, Petitioner's Corporate Representative, and discussed the Medicaid violations alleged in the review. During the meeting, the Agency requested Mr. Colavecchio to instruct Petitioner's staff physicians to review their records and provide a written rebuttal to the Agency's initial determinations. Within days, and prior to any further action, the Agency placed the audit on indefinite hold. The Agency decided to delay the audit until certain proposed legislation relating to peer review and the integrity of the Medicaid reimbursement program was enacted. Two years later, Section 409.9131, Florida Statutes, was enacted during the 1999 legislative session and became law. Shortly thereafter, in 1999, the Agency hired Dr. Larry Deeb, a board-certified, practicing pediatrician, to perform a peer review of Petitioner's practices and procedures. Dr. Deeb has performed similar medical records reviews for the Medicaid program since 1981 and possesses a thorough understanding of CPT coding and the EPSDT requirements. Dr. Deeb received the medical files provided by Petitioner, and reviewed each patient file in the random sample, including the medical services and Medicaid-related claim records. On November 11, 1999, Dr. Deeb completed his peer review of 564 of the 580 claims provided in the random sample and forwarded his findings to the Agency. Dr. Deeb advised the Agency that 16 reimbursement claims involved adult patients and he therefore did not review them. Utilizing Dr. Deebs findings, the Agency employed appropriate and valid auditing and statistical methods, and calculated the total Medicaid overpayment that Petitioner received during the two year audit period. On July 17, 2000, approximately four years after the original audit notification, the Agency issued its Final Agency Audit Report (FAAR). The Agency advised Petitioner that, based upon its review of the random sample of 61 patients for whom Petitioner submitted 580 claims for payment between 1994 and 1996, Petitioner received $875,261.03 in total overpayment from the Medicaid program during the audit period. Petitioner denied the overpayment and requested a formal administrative hearing. Following the initial commencement of the final hearing in this matter in December 2001, Dr. Deeb, again, reviewed the disputed claims and modified his opinion relating to 6 claims. Thereafter, the Agency recalculated the alleged overpayment and demanded Petitioner to pay $870,748.31. The Allegations The Agency alleges that specific claims submitted by Petitioner, which were paid by the Medicaid program, fail to comply with specific Medicaid requirements and therefore must be reimbursed. Since its inception, the Medicaid program has required providers to meet the Medicaid program's policies and procedures as set forth in federal, state, and local law. To qualify for payment, it is the provider's duty to ensure that all claims "[a]re provided in accord with applicable provisions of all Medicaid rules, regulations, handbooks, and policies and in accordance with . . . state . . . law." Section 409.913(5)(e), Florida Statutes (1993). Medicaid manuals are available to all Providers. Petitioner, as a condition of providing Medicaid services pursuant to the Medicaid program, is bound by the requirements and restrictions specified in the manuals, and under the contract, is required to reimburse the Medicaid program for any paid claims found to be in violation of Medicaid policies and procedures. The evidence presented at hearing established that Petitioner frequently violated various Medicaid policies and procedures. First, Petitioner repeatedly failed to comply with Section 10.9 of the Medicaid Physician's Provider Handbook, (MPPH), and Sections 409.905(9), 409.913(5)(e), 409.913(7)(e), and 409.913(7)(f), (1993, 1994 Supp. 1995, and 1996), Florida Statutes, which require all medical services to be rendered by, or supervised by a physician, and attested to by the physician's signature. Medical records reflecting services for paid claims must be physician signature certified and dated, or the services are not defined as physician's services. In addition, Petitioner routinely failed to correctly document the provision of certain physician's assistant (P.A.) Medicaid services that require the personal supervision of a physician or osteopath. See Chapter 1 of the Physician Assistant Coverage and Limitations Handbook, March 1995, and Appendix D (Glossary) in the Medicaid Provider Reimbursement Handbook, HCFA-1500 (HCFA-1500). In addition, Petitioner failed to comply with Medicaid regulations that require an approved physician to be present in the facility when certain P.A. services are delivered and to attest to it by signature within twenty-four hours of service. See Section 11.1 of the MPPH, effective July 1994, and Sections 409.905, and 409.913 (1993, 1994 Supp., 1995, and 1996 Supp.), Florida Statutes. The evidence presented at hearing also demonstrates that Petitioner repeatedly violated specific record keeping requirements located in Section 10.9 of the MPPH, Sections 10.6 and 11.5 of the Medicaid EPSDT Provider Handbook (EPSDT), and Sections 409.913(5)(e), 409.913(7)(e), and 409.913(7)(f), (1993, 1994 Supp., 1995, and 1996), Florida Statutes. In addition, the Agency demonstrated that Petitioner occasionally failed to document support for the necessity of certain services or simply billed for services that were not medically necessary. As indicated, Medicaid policy limits a physician to bill only for services that are medically necessary and defines the circumstances and varying levels of care authorized. In fact, Section 11.1 of the MPPH, effective July 1994, provides in part: The physician services program pays for services performed by a licensed physician or osteopath within the scope of the practice of medicine or osteopathy as defined by state law . . . . The services in this program must be performed for medical necessity for diagnosis and treatment of an illness on an eligible Medicaid recipient. Delivery of all services in this handbook must be done by or under the personal supervision of a physician or osteopath . . . at any place of service . . . . Each service type listed has special policy requirements that apply specifically to it. These must be adhered to for payment. The manual further provides clear guidelines defining authorized services for reimbursement which Petitioner apparently overlooked. For example, the manual defines the four types of medical history exams that Medicaid providers may conduct, the nature of the problems presented, and the appropriate and authorized tests. The manual also identifies the varying degrees of medical decision-making complexity related to Medicaid services and provides instructions relating to the method of selecting the correct evaluation and management code for billing. Petitioner consistently violated coding restrictions. Moreover, the Medicaid policy manual also outlines the specific procedures and billing requirements necessary for seeking payment for medical services including the early periodic screening for diagnosis and treatment (EPSDT) services. Chapter 10 and 11 of the MPPH specifically state that services that do not include all listed components of the EPSDT are not defined as an EPSDT, and upon audit, the Agency re-calculated Petitioner's medical services at the appropriate procedure code. Stipulation Prior to the commencement of the hearing, the parties stipulated that certain paid claims were correctly determined by the Agency to be overpayments. Specifically, the parties agreed that portions of samples 1, 3, 14, 21, 28, 41, 46, 47, 51, 53, and 56 could not be claimed for reimbursement since lab services which are part of an office visit reimbursement and/or lab service fees performed by an independent outside lab are not permitted. In addition, the parties agreed that specific portions of samples 1, 13, 14, 27, 28, 33, 35, 43, 46, 47, 52, 53, and 55 could not be claimed since Modifier 26 billing, the professional component, is only appropriate when the service is rendered in a hospital and Petitioner's services were rendered in an office. Pediatric Sample With regard to the random sample of pediatric files, upon careful review, the evidence presented at hearing sufficiently demonstrates that Petitioner was overpaid the following amounts on the following paid claims for the following reasons: The prolonged physician's services billed to Medicaid were not documented as having been provided or medically necessary. Cluster Number Date of Service Procedure Code Billed and Paid Overpayment 1 1/18/1996 99354 $ 36.64 1 5/14/1996 99354 $ 36.64 13 9/25/1995 99354 $ 36.64 19 9/28/1994 99354 $ 39.50 21 12/18/1995 99354 $ 36.64 28 3/06/1995 99354 $ 36.64 42 6/04/1996 99354 $ 36.64 43 12/19/1994 99354 $ 36.64 47 9/28/1994 99354 $ 39.50 47 10/17/1995 99354 $ 36.64 51 4/05/1995 99354 $ 36.64 53 11/02/1995 99354 $ 36.64 56 5/01/1996 99354 $ 36.64 The level of care billed to and reimbursed by Medicaid at the 99215 office visit procedure code level was improper since the level of care provided was at the 99213 office visit procedure code level. Cluster Number Date of Service Overpayment 1 9/14/1995 $ 34.14 1 1/18/1996 $ 34.14 1 5/14/1996 $ 34.14 33 9/28/1994 $ 20.00 47 10/17/1995 $ 34.14 The level of care billed and paid at the 99215 office visit procedure code level was improper since the level of care that was provided was at the 99214 office visit procedure code level. Cluster Number Date of Service Overpayment 53 5/31/1995 $ 21.69 The level of care billed and paid at the 99205 office visit procedure code level was improper since the level of care that was provided was at the 99204 office visit procedure code level. Cluster Number Date of Service Overpayment 25 7/27/1994 $ 2.00 The level of care that was billed and paid at the 99205 office visit procedure code level was improper since the level of care that was provided was at the 99203 office visit procedure code level. Cluster Number Date of Service Overpayment 35 5/11/1995 $ 37.96 51 12/08/1994 $ 15.00 55 11/21/1995 $ 37.96 58 9/22/1995 $ 37.96 The level of care that was billed and paid at the 99215 office visit procedure code level was improper since the level of care that was provided was at the 99204 office visit procedure code level. Cluster Number Date of Service Overpayment 43 12/11/1994 ($ 3.00) credit The level of care that was billed and paid at the 99205 office visit procedure code level was improper since the medical services provided and documentation supported an EPSDT visit. Cluster Number Date of Service Overpayment 53 2/06/1995 $ 16.53 The required components of the EPSDT were not documented as being performed at the office visit that had been claimed and paid as an EPSDT and therefore, the difference between the EPSDT payment received and the value of the procedure code for the documented level of office visit that occurred (i.e., 99214, 99213, 99212, 99211, or 99203), is deemed an overpayment. Cluster Number Date of Service Level of Visit Overpayment 1 7/28/1995 99213 $ 39.82 3 6/28/1995 99213 $ 39.82 5 3/03/1995 99203 $ 21.43 6 7/07/1994 99213 $ 5.00 10 8/17/1995 99212 $ 43.82 12 1/31/1996 99204 $ 0.00 14 5/31/1995 99213 $ 39.82 18 10/04/1994 99213 $ 5.00 18 1/29/1996 99214 $ 27.37 20 8/25/1994 99213 $ 5.00 21 12/11/1995 99214 $ 27.37 29 8/17/1994 99212 $ 9.00 Cluster Number Date of Service Level of Visit Overpayment 29 9/06/1995 99213 $ 39.82 40 7/25/1994 99203 $ 0.00 41 5/06/1996 99214 $ 27.37 46 9/19/1994 99213 $ 5.00 46 10/19/1995 99213 $ 39.82 47 11/02/1994 99213 $ 5.00 51 9/07/1995 99213 $ 39.82 53 7/10/1995 99213 $ 39.82 53 1/19/1995 99213 $ 39.82 59 5/02/1996 99203 $ 43.39 Adult Samples At hearing, Petitioner disputed all of the Agency's findings relating to patients over the age of 21 and objected to Dr. Deeb, a pediatrician, performing any review of their files. While Dr. Deeb is not the appropriate peer to review adult patient files, the following adult claims did not require substantive peer review and resulted in overpayment due to the stated reason: There were not any medical records in existence to indicate that any medical services were performed. Cluster Number Date of Service Procedure Code Billed and Paid Overpayment 2 2/20/1995 99215 $ 53.00 2 7/11/1995 99215 $ 59.14 2 8/09/1995 99215 $ 57.14 2 9/07/1995 99213 $ 23.00 2 10/11/1995 99213 $ 23.00 2 1/02/1996 99213 $ 23.00 2 3/22/1996 73560/Rad.Ex. $ 16.36 2 4/01/1996 99215 $ 57.14 2 4/05/1996 99213 $ 23.00 2 4/23/1996 99213 $ 23.00 15 2/16/1996 99213 $ 23.00 15 2/19/1996 99215 $ 57.14 16 5/14/1996 Blood Count $ 8.00 Cluster Number Date of Service Procedure Code Billed and Paid Overpayment 16 5/14/1996 UA $ 3.00 16 5/14/1996 99215 $ 57.14 23 7/28/1994 99213 $ 23.00 23 5/09/1995 72069/26 Rad.Ex. $ 6.98 23 5/09/1995 72069/Rad.Ex. $ 17.45 23 10/20/1995 99213 $ 23.00 34 4/24/1996 99214 $ 35.45 57 11/17/1995 99215 $ 59.14 60 4/10/1996 99215 $ 57.14 61 5/22/1995 99213 $ 23.00 The medical records failed to contain the required physician's signature and date authenticating the fact that the services billed were performed by either P.A. Olsen or P.A. Avidon under physician supervision. The services provided by the non-physician employee were reviewed and down-coded by the Agency to the appropriate level physician's office visit code. Cluster Number Date of Service Proc. Code Pd./ P. Code Allowed Overpayment 2 6/30/1995 99215/99212 $ 36.14 2 7/20/1995 99215/99213 $ 34.14 2 7/28/1995 99215/99213 $ 34.14 2 9/05/1995 99215/99212 $ 36.14 8 4/17/1995 99205/99203 $ 35.96 17 3/27/1995 99205/99203 $ 35.96 23 5/09/1995 99215/99213 $ 32.14 23 6/09/1995 99215/99213 $ 32.14 34 4/23/1996 99205/99203 $ 35.96 The medical records failed to contain the required physician signature authenticating the fact that the services were provided by a physician. The services provided were reviewed and down-coded by the Agency to the appropriate level physician's office visit code. Procedure Code Cluster Number Date of Service Billed and Paid Overpayment 2 6/14/1995 99215/99211 $ 45.14 16 5/15/1996 99215/99211 $ 45.14 61 5/05/1995 99205/99204 $ 14.53 The provider improperly sought payment for lab services that were part of the office visit reimbursement and/or lab services performed by an independent outside lab. Cluster Number Date of Service Procedure Billed and Paid Overpayment 2 3/08/1996 UA $ 3.00 2 4/03/1996 UA $ 3.00 15 2/08/1996 UA $ 3.00 16 5/15/1996 Blood Count $ 8.50 16 5/15/1996 Blood Count $ 8.00 The provider improperly sought payment for Modifier 26 billings (professional component) which are only appropriate when the service is rendered in a hospital. Cluster Number Date of Service Procedure Billed and Paid Overpayment 2 2/17/1995 Radiologic exam $ 6.98 2 6/14/1995 Radiologic exam $ 7.20 8 4/17/1995 Tympanometry $ 9.00 16 5/13/1996 Radiologic exam $ 5.45 16 5/15/1996 Radiologic exam $ 6.98 In addition to the policy and procedural violations, Petitioner, in egregious violation of the Medicaid program, admittedly submitted Medicaid claims for the services of specialist physicians (such as an allergist, OB/GYN, podiatrist, psychologists, and ophthalmologists) not within its Provider group, collected Medicaid funds based on those claims, and reimbursed the respective specialist. While Petitioner's corporate representative, Mr. Colavecchio, was admittedly responsible for the coding and billing of the Medicaid services submitted for reimbursement, he was minimally aware of the Medicaid policy requirements and possessed limited working knowledge of CPT coding and EPSDT billing. In addition, Petitioner's employees, Dr. Keith Wintermeyer and Dr. Marcia Malcolm, were only moderately familiar with the CPT coding and EPSDT component requirements. They provided little input to Petitioner regarding CPT coding and the sufficiency of certain physician's services relating to EPSDT billing.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency re-calculate the overpayment consistent with the Findings of Fact, and include only those identified violations in the cluster samples of the adult patient files, and issue a Final Order requiring Petitioner to reimburse, within 60 days, the Agency for the Medicaid overpayments plus any interest that may accrue after entry of the Final Order. DONE AND ENTERED this 14th day of February, 2003, in Tallahassee, Leon County, Florida. WILLIAM R. PFEIFFER 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 14th day of February, 2003. COPIES FURNISHED: Susan Felker-Little, Esquire Agency for Health Care Administration 2727 Mahan Drive, Suite 3431 Fort Knox Building III Tallahassee, Florida 32308 Charles D. Jamieson, Esquire Ward, Damon & Posner, P.A. 4420 Beacon Circle West Palm Beach, Florida 33407 Lealand McCharen, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308 Valda Clark Christian, General Counsel Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building, Suite 3431 Tallahassee, Florida 32308 Rhonda M. Medows, M.D., Secretary Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building, Suite 3116 Tallahassee, Florida 32308
