Conclusions THE PARTIES resolved all disputed issues and executed a Settlement Agreement. The parties are directed to comply with the terms of the attached settlement agreement. Based on the foregoing, this file is CLOSED. DONE and ORDERED on this the QIhay of Qucenater > 201\, in Tallahassee, Florida. bd WM fer ELIZABETH DUDEK, SECRETARY Agency for Health Care Administration 1 Filed January 5, 2012 11:44 AM Division of Administrative Hearings A PARTY WHO IS ADVERSELY AFFECTED BY THIS FINAL ORDER IS ENTITLED TO A JUDICIAL REVIEW WHICH SHALL BE INSTITUTED BY FILING ONE COPY OF A NOTICE OF APPEAL WITH THE AGENCY CLERK OF AHCA, AND A SECOND COPY ALONG WITH FILING FEE AS PRESCRIBED BY LAW, WITH THE DISTRICT COURT OF APPEAL IN THE APPELLATE DISTRICT WHERE THE AGENCY MAINTAINS ITS HEADQUARTERS OR WHERE A PARTY RESIDES. REVIEW PROCEEDINGS SHALL BE CONDUCTED IN ACCORDANCE WITH THE FLORIDA APPELLATE RULES. THE NOTICE OF APPEAL MUST BE FILED WITHIN 30 DAYS OF RENDITION OF THE ORDER TO BE REVIEWED. Copies furnished to: L. William Porter Assistant General Counsel Agency for Health Care Administration Office of the General Counsel (Interoffice) Carlos Muniz Deputy Attorney General/Chief of Staff Office of the Attorney General Department of Legal Affairs (electronic mail) Michael Verbitsky, President 2024 Hollywood Boulevard Hollywood, Florida 33020 (U.S. Mail) Eleanor M. Hunter Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 Mike Blackburn, Bureau Chief, Medicaid Program Integrity Finance and Accounting Health Quality Assurance Department of Health CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished to the above named addressees by U.S. Mail, Laserfiche or electronic mail on this the fay of denne 2012. Agency Clerk State of Florida Agency for Health Care Administration 2727 Mahan Drive, MS #3 Tallahassee, Florida 32308-5403 (850) 412-3630/FAX (850) 921-0158 SETTLEMENT AGREEMENT THIS SETTLEMENT AGREEMENT (hereinafter referred to as “ Agreement”) is entered between the STATE OF FLORIDA, acting through its MEDICAID FRAUD CONTROL UNIT (hereinafter referred to as “MFCU”) of the OFFICE OF THE ATTORNEY GENERAL (hereinafter referred to as “OAG”) and WELLSCRIPTS, LLC (hereinafter referred to as “WELLSCRIPTS”) and MICHAEL VERBITSKY (bereinafter referred to as “VERBITSKY”), acting through its authorized representative. As a preamble to this Agreement, the MFCU, WELLSCRIPTS, and VERBITSKY agree to the following: A. “WELLSCRIPTS,” “VERBITSKY,” and “Parties” Defined: As used in this Agreement, the term “WELLSCRIPTS” is defined as WELLSCRIPTS, LLC, an inactive Florida for Limited Liability Company, its current and former parent entities, predecessors, successors, and assigns, including the agents, employees, officers, and directors, and independent contractors of WELLSCRIPTS, their successors and assigns, to the extent such agerits and independent contractors were acting for or on behalf of WELLSCRIPTS. WELLSCRIPTS was dissolved on September 26, 2008. VERBITSKY was the president and owner of WELLSCRIPTS during the Covered Conduct. Collectively, WELLSCRIPTS, VERBITSKY, and MFCU are the “Parties,” as used herein. B. “Investigation” of the “Covered Conduct”: The MFCU conducted an investigation of WELLSCRIPTS concerning WELLSCRIPTS’ alleged improper claims for and receipt of Medicaid payments from Florida’s Agency for Health Care Administration (hereinafter Page 1 of 11 referred to as “AHCA”). As used herein, the term “Investigation” shall mean MFCU’s investigation into WELLSCRIPTS. As a result of this investigation, the MFCU alleges that WELLSCRIPTS improperly billed the Florida Medicaid program $346,887.88 for certain drugs. This calculation was based on an audit of the top seven (7) drugs billed by Wellscripts. Also, the MFCU alleges that WELLSCRIPTS was improperly reimbursed for medications billed to two assisted living facilities totaling $17,139.16. WELLSCRIPTS submitted these claims through Medicaid Provider Number 0268208-00. The MFCU alleges that the total amount improperly billed by WELLSCRIPTS to Florida’s Medicaid program is $364,027.04. This MFCU-investigated conduct is the “Covered Conduct,” as used hereafter. The “Covered Conduct” does not include any conduct or potential claims that WELLSCRIPTS may have administratively against AHCA or any other entity for billed services which have not yet been paid that are outside the scope and/or time frame of the conduct detailed above. . MFCU’s Claims: MFCU contends it has certain statutory and common-law civil claims against WELLSCRIPTS as a result of the Covered Conduct. . Motivation to Resolve Claims: The Parties desire to conclude the aforementioned Investigation into the Covered Conduct and to settle and compromise on all claims, including, but not limited to, any claims pursuant to Sections 68.081 through 68.092 Florida Statutes, against WELLSCRIPTS arising out of the Investigation that the MFCU either asserted or maintained against WELLSCRIPTS or could have asserted or maintained against WELLSCRIPTS. The Parties enter into this full and final Agreement Page 2 of 11 to avoid the delay, uncertainty, inconvenience, and expense of protracted litigation of these claims. NOW, THEREFORE, in consideration of the premises and the mutual promises, agreements, obligations, and covenants set forth, and for good and valuable consideration as stated herein, the Parties agree as follows: 1, Settlement Terms: a. Settlement Amount: WELLSCRIPTS’ relinquishment of all rights and interests in the monies previously seized from Bank of America Account Number 003738055311 totaling $219,193.66 plus interest. The monies previously seized are currently being held in the OAG’s Trust Account. b. Return of Funds Seized: The OAG agrees to abandon the claim for forfeiture of the seized currency from Bank of America Account Numbers 003671024535 and 003672757995 in the names of Michael Verbitsky and Ricki R. Kaneti totaling $22,253.27 and will return the funds to Michael Verbitsky and Ricki R. Kaneti. The funds will be returned to Michael Verbitsky and Ricki R. Kaneti’s counsel via check to Nason, Yeager, Gerson, White & Lioce P.A.’s trust account at Sabadell United Bank, Account Number 0215000258. c, Upon the signing of this Agreement by both parties, the MFCU will transfer to AHCA, $219,193.66 plus interest to satisfy the Medicaid program loss. d. Upon the signing of this Agreement by both parties, OAG agrees to voluntarily dismiss the Civil Action case number 2010 CA 015157 (09), which was filed in the Seventeenth Judicial Circuit of Broward County, FL on April 6, 2010. OAG also agrees to voluntarily dismiss the Civil Forfeiture Action case number 2007 Page 3 of 11 CA 000765 (14), which was filed in the Seventeenth Judicial Circuit of Broward County, FL on January 11, 2007. 2. MFCU’s Release: Subject to the exceptions in Paragraph 3 (“Scope of Release”) and Paragraph 4 (“Bankruptcy Provisions”), upon full execution of this Agreement by all Parties and WELLSCRIPTS’ simultaneous remittance to the MFCU of the settlement amount as provided in Paragraph 1, the MFCU agrees to release WELLSCRIPTS from any and all civil and administrative actions, causes of action, obligations, liabilities, claims, or demands for compensatory, special, punitive, exemplary, or treble damages, or demand whatsoever in law or in equity, which were asserted or maintained or could have been asserted or maintained, against WELLSCRIPTS based upon or arising out of the Investigation of the Covered Conduct specifically as defined in Preamble Paragraph B. However, the Agreement will have no actual or intended effect until executed by MFCU’s authorized representative. In the event WELLSCRIPTS makes payment of the Settlement Amount prior to full execution of this Agreement, MFCU may deposit the Settlement Amount in an escrow account pending execution and such deposit shall not be construed as acceptance of the terms of this Agreement. 3. Scope of Release: Notwithstanding any term of this Agreement, the following are specifically reserved and excluded from the scope and terms of this Agreement as to any entity or person, including WELLSCRIPTS: a. MFCU, AHCA, or other appropriate law enforcement or regulatory agency or private party suit against WELLSCRIPTS or any predecessor, successor, director, officer, employee, assign or agent of WELLSCRIPTS for: Page 4 of 11 i. Any administrative or civil cause of action for any violation of law arising out of the covered conduct and not encompassed within the Investigation as defined in Preamble Paragraph B; or ii. Any criminal liability. Accordingly, WELLSCRIPTS agrees not to assert the defenses of res judicata, collateral estoppel, excessive fines, or double jeopardy as to actions described in subparagraphs (a)(1) and (a)(2) of this Paragraph 3. b. Any actions or matters involving the exclusion of WELLSCRIPTS or other entities or persons from Federal or State, including Florida, health care programs; c. Any administrative action(s) relating to professional licensure or adjudication of claims by persons or entities who are not parties to this Agreement; d. Any claims based upon such obligations as are created by this Agreement, e. Any liability to the State of Florida, including MFCU and OAG, for any conduct other than the Covered Conduct; f. Any express or implied warranty claims or other claims for defective or deficient products or services, including quality of goods and services, provided by WELLSCRIPTS; g. Any claims for personal injury or property damage or for other consequential | damages arising from the Covered Conduct; ! h. Any claims based on a failure to deliver items or services due; and i. Any action against a healthcare professional, including WELLSCRIPTS and any of its employees or agents, for practicing without the necessary license or certification. Page S$ of 11 . Bankruptcy Provisions: The Parties warrant and agree to the following bankruptcy provisions: a. WELLSCRIPTS warran ts that it has reviewed its own financial position and WELLSCRIPTS is solvent within the meaning of Title 11 of the United States Code §§547(b)(3) and 548 (a)(1)(B)Gi)@, and will remain solvent following its payment to the MFCU of the Settlement Amount. _ No Admission of Fault: This Agreement, any exhibit or document referenced herein, any action taken to reach, effectuate, or further this Agreement, and the terms set forth herein, shall not be construed as, or used as, an admission by or against any of the Parties of any fault, wrongdoing, or liability whatsoever. Entering into or carrying out this Agreement, or any negotiations or proceedings related thereto, shall not in any event be construed as, or deemed to be evidence of, an admission or concession by any of the Parties, or to be a waiver of any applicable defense. However, with the exception of certain bankruptcy provisions in Paragraph 4, nothing in this Agreement, including this Paragraph 5, shall be construed to limit or to restrict WELLSCRIPTS’ right to utilize this Agreement, or payments made hereunder, to assert and maintain the defenses of res judicata, collateral estoppel, payment, compromise and settlement, accord and satisfaction, or any legal or equitable defenses in any pending or future legal or administrative action or proceeding arising out of the specific subject matter of the Investigation, as defined in Preamble Paragraph B. WELLSCRIPTS does not admit MFCU’s contentions that arise from its Investigation of the Covered Conduct, set forth in Preamble Paragraph B, and specifically denies WELLSCRIPTS knowingly submitted any claims in Page 6 of 11 violation of state or federal law. This Agreement, and the payment, promises, and release provided hereunder, are not and shall not be construed to be an admission of liability or any acknowledgment of the validity of any of the claims that were or that could have been asserted by the MFCU against WELLSCRIPTS, arising out of the: Investigation, which liability or validity is hereby expressly denied by WELLSCRIPTS. . Denied Medical Claims: The Settlement Amount shall not be decreased as a result of the denial of claims for payment now being withheld from payment by AHCA or its intermediary agents related to the Covered Conduct. WELLSCRIPTS agrees not to resubmit to Medicare, Medicaid, or any State or Federal payer any previously denied claims related to the Covered Conduct and agrees not to appeal any such denials of claims. However, WELLSCRIPTS reserves the right to appeal and/or resubmit previously denied claims or seek administrative remedies with AHCA of those claims which are outside the scope of the Covered Conduct. . Complete Resolution: The Parties have agreed that the terms of this Agreement constitute a complete resolution and settlement of the claims asserted against WELLSCRIPTS by the MFCU, as well as the claims that could have been asserted against WELLSCRIPTS by the MFCU arising out of or as a result of the Investigation described in Preamble Paragraph B. Upon WELLSCRIPTS’ continued fulfillment of its obligations under this Agreement, and relinquishment of all rights and interests in the monies seized provided in Paragraph 1, the Investigation, as defined in Preamble Paragraph B, shall be concluded. Page 7 of 11 10. il. 12. 13, 14, Survival: This Agreement shal! be binding upon and inure to the benefit of the Parties and their successors, transferees, heirs, and assigns. Merger: This Agreement constitutes the entire agreement between the Parties with regard to the subject matter contained herein and all prior negotiations and understandings between the Parties shall be deemed merged into this Agreement. No External Representations: No representations, warranties, or inducements have been made by the MFCU concerning this Agreement other than those representations, warranties, and covenants contained in this Agreement. No Oral Modifications or Waivers: No waiver, modification, or amendment of the terms of this Agreement shall be valid or binding unless in writing, signed by the Party to be charged, and then only to the extent set forth in such written waiver, modification, or amendment. Failure of Strict Performance: Any failure by any Party to the Agreement to insist upon the strict performance by any other Party of any of the provisions of this Agreement shall not be deemed a waiver of any of the provisions of this Agreement, and such Party, notwithstanding such failure, shall have the right thereafter to insist upon the specific performance of any and all of the provisions of this Agreement. Choice of Law: This Agreement shall be governed by, and construed and enforced in accordance with the laws of the State of Florida, without regard to its conflict of law principles. Release of Florida; WELLSCRIPTS fully and finally releases the MFCU, the OAG, and the State of Florida, its agencies, employees, servants, and agents from any claims (including attorney’s fees and costs of any kind) that WELLSCRIPTS has Page 8 of 11 15. 16. 17. 18. asserted, could have asserted, or may assert in the future against the MEFCU, the OAG, or the State of Florida, its agencies, employees, and agents arising out of or resulting from the Investigation as defined in Preamble Paragraph B. Contract Beneficiaries: This Agreement is intended to be for the benefit of the Parties only and by this instrument the Parties do not release any claims against any other person or entity, except to the extent provided in the immediately preceding Paragraph 14. Contribution from Medical Beneficiaries: WELLSCRIPTS waives and shall not seek payment for any of the health care billings covered by this Agreement from any health care beneficiaries or their parents, sponsors, legally responsible individuals, or third party payers based upon the claims defined as Covered Conduct. Litigation Costs: With exception of investigative costs and litigation costs, which may be specifically provided for in Paragraph 1, each party to this Agreement shall bear its own legal and other costs incurred in connection with this matter, including the preparation and performance of this Agreement. Unenforceable Clause: Neither Party shall challenge the legality or enforceability of this Agreement. If any clause, provision, or section of this Agreement shall, for any reason, be held illegal, invalid, or unenforceable, such illegality, invalidity, or unenforceability shall not affect any other clause, provision, or section of this Agreement, and this Agreement shall be construed and enforced as if such illegal, invalid, or unenforceable clause, section, or other provision had not been contained herein. Page 9 of 11 19. 20. 21. 22. 23. 24. 25. Arm’s Length Negotiations: The Parties executed this Agreement after arm’s length negotiations and it reflects the conclusion of the Parties that this Agreement is in the best interest of all the Parties. Each Party is satisfied with the Agreement’s language and construction, and therefore the interpretation of the terms of this Agreement shall not be construed against any of the Parties. Each Party represents that this Agreement is freely and voluntarily entered into without any degree of duress or compulsion whatsoever. Authority to Execute Agreement: The undersigned individuals signing this Agreement on behalf of WELLSCRIPTS represent and warrant that they are authorized to execute this Agreement. The undersigned MFCU signatories represent that they are signing this Agreement in their official capacities and that they are authorized to execute this Agreement. Effective Date: This Agreement is effective on the date of signature of the last signatory to the Agreement (hereinafter referred to as the “Effective Date”). Non-Punitive Effect: The Parties agree that this Settlement is not punitive in purpose or effect. IRS Characterization: Nothing in this Agreement constitutes an agreement or representation characterizing the Settlement Amount for the purposes of the Internal Revenue Code, Title 26 of the United States Code. Public Disclosure: All Parties consent to the MFCU’s disclosure of this Agreement, and information about this Agreement, to the public. Introductory Signals: The introductory paragraph signals are for subject identification only and do not affect the meaning or become part of the Agreement. Page 10 of 11 WELLSCRIPTS, LLC FOR FLORIDA'S OFFICE OF THE ATTORNEY GENERAL, DEPARTMENT OF LEGAL AFFAIRS PAM BONDI ATTORNEY GENERAL AY C. A oa * 3 ™ Carlos Muniz “ ie . J f- Deputy Attorney General/Chief of Staff Position: f , eal 4h vali Date: Date: Page 1! of Il (Page 1 of 48) POROA AGENCY FOR HESLIA CARE ADMINSTRATION: JEB BUSH, GOVERNOR CHRISTA CALAMAS, SECRETARY CERTIFIED MAIL. — 91 7108 2133 3932 8581 4299 September 7, 2006 Provider No: 026820800 License No: PH20057 Mr. Michael Verbitsky Wellscripts LLC 2024 Hollywood Boulevard Hollywood, Florida 33020 In Reply Refer to FINAL AUDIT REPORT CL No. 06-4308-000/P/AAE Dear Mr. Verbitsky: The Agency for Health Care Administration (the Agency), Bureau of Medicaid Program Integrity, has completed a review of claims for Medicaid reimbursement for dates of service during the period of December 1, 2004 through November 30, 2005. A preliminary audit report dated July 25, 2006 was sent to you indicating that we had determined you were overpaid $347,963.94. Based upon a review of all documentation submitted, we have determined that you were overpaid $347,963.94 for services that in whole or in part are not covered by Medicaid. A fine of $5,000.00 has been applied. The total amount due is $352,963.94. . Be advised of the following: (1) Pursuant to Section 409.913(23)(a), Florida Statutes (F.S.), the Agency is entitled to recover all investigative, legal, and expert witness costs. (2) In accordance with Sections 409.913(15), (16), and (17), F.S., and Rule 59G-9.070, Florida Administrative Code (F.A.C.), the Agency shall apply sanctions for violations of federal and state laws, including Medicaid policy. This letter shall serve as notice of the following sanction(s): ° A fine of $5,000.00 for violation of Rule Section 59G-9.070(7)(n), F.A.C. 2727 Mahan Drive « Mail Stop #4 Vallahassee, FL 32308 Visit AHCA online at www fdhe. state flus APPENDIX A (Page 2 of 48) Wellseripts LLC Page 2 of 4 This review and the determination of Overpayment were made in accordance with the provisions of Section 409.913, F.S. In determining the appropriateness of Medicaid payment pursuant to Medicaid policy, the Medicaid program utilizes procedure codes, descriptions, policies, limitations and requirements found in the Medicaid provider handbooks and Section 409.913, F.S, In applying for Medicaid reimbursement, providers are required to follow the guidelines set forth in the applicable tules and Medicaid fee schedules, as promulgated in the Medicaid policy handbooks, billing bulletins, and the Medicaid provider agreement. Medicaid cannot pay for services that do not meet these guidelines. Below is a discussion of the particular guidelines related to the review of your claims, and an explanation of why these claims do not meet Medicaid requirements. The audit work Papers are attached, listing the claims that are affected by this determination. REVIEW DETERMINATION(S) The audit included a comparison of your lawful documented product acquisitions with your paid Medicaid claims. Only product acquisitions from Florida licensed wholesalers were included in the review. The audit period for this review was from December 1, 2004 through November 30, 2005. The drug quantity paid for by Medicaid, in some instances, exceeded the quantity available to dispense to Medicaid recipients. This review identified an overpayment of $347,963.94. Enclosed for this revicw are the overpayment calculations which include the summary sheet(s), the paid claims data, and acquisition data. If you are currently involved in a bankruptcy, you should notify your attorney immediately and provide a copy of this letter for them. Please advise your attorney that we nced the following information immediately: (1) the date of filing of the bankruptcy petition; (2) the case number; (3) the court name and the division in which the petition was filed (e.g., Northern District of Florida, Tallahassee Division). If you are not in bankruptcy and you concur with our findings, remit by certified check in the amount of $352,963.94, which includes the Overpayment amount as well as any fines imposed. The check must be payable to the Florida Agency for Health Care Administration. Questions regarding procedures for submitting payment should be directed to Medicaid Accounts Receivable, (850) 488- 5869. ‘To ensure proper credit, be certain you legibly record on your check your Medicaid provider number and the C.I. number listed on the first page of this audit report. Please mail payment to: Agency for Health Care Administration Medicaid Accounts Receivable P.O. Box 13749 Tallahassee, Florida 32317-3749 If payment is not received, or arranged for, within 30 days of receipt of this letter, the Agency may withhold Medicaid payments in accordance with the provisions of Chapter 409.913(27), F.S. Furthermore, pursuant to Sections 409.913(25) and 409.913(15), F.S., failure to pay in full, or enter into and abide by the terms of any repayment schedule set forth by the Agency may result in termination from the Medicaid Program. Likewise, failure to comply with all sanctions applied or due dates may result in additional sanctions being imposed. (Page 3 of 48) Wellscripts LLC Page 3 of 4 You have the right to request a formal or informal hearing pursuant to Section 120.569, F.S. Ifa request for a formal hearing is made, the petition must be made in compliance with Section 28- 106.201, F.A.C. and mediation may be available. Ifa request for an informal hearing is made, the petition must be made in compliance with rule Section 28-106.301, F.A.C. Additionally, you are hereby informed that if'a request for a hearing is made, the petition must be received by the Agency within twenty-one (21) days of receipt of this letter. For more information regarding your hearing and mediation rights, please see the attached Notice of Administrative Hearing and Mediation Rights. Any questions you may have about this matter should be directed to: Arlenc Elliott, Senior Pharmacist, Agency for Health Care Administration, Medicaid Program Integrity, 2727 Mahan Drive, Mail Stop #6, Tallahassee, Florida 32308-5403, telephone (850) 921-1802, facsimile (850) 410-1972, Sincerely, @. katy D. Kenneth Yon AHCA Administrator aae Enclosure(s) cc: Christopher Parrella, J.D., CHC Health Law Offices of Anthony C. Vitale, P.A. 799 Brickell Plaza Suite 700 Miami, Florida 33131 Medicaid Accounts Receivable Arlene Elliott (Page 4 of 48) Wellsenpts 110 Page suf NOTICE OF ADMINISTRATIVE HEARING AND MEDIATION RIGHTS You have the tight to request an administrative hearing pursuant to Sections 120.569 and 120.57, Florida Statutes. If you disagree with the facts stated in the foregoing Final Audit Report (hereinafter FAR), you may request a formal administrative hearing pursuant to Section 120.57{L), Florida Statutes. If you do not dispute the facts stated in the FAR, but believe there are additional .feasons to grant the relief you seek, you may request an informal administrative hearing pursuant to Section 120.57(2), Florida Statutes. Additionally, pursuant to Section 120.573, Florida Statutes, mediation may be available if you have chosen a formal administrative hearing, as discussed more fully below. The wnitten request for an administrative hearing must conform to the requirements of either Rule 28-106.201(2) or Rule 28-106.301(2), Florida Administrative Code, and must be received by the Assistant Bureau Chief by 5:00 P.M. no later than 21 days after you received the FAR. The address for filing the written request for an administrative hearing is: Assistant Bureau Chief Medicaid Program Integrity Agency for Health Care Administration 2727 Mahan Drive, Mail Stop #6 Tallahassee, Florida 32308 The request must be legible, on 8 % by 11-inch white paper, and contain: 1. Your name, address, telephone number, any Agency identifying number on the FAR, if known, and name, address, and telephone number of your representative, if any; 2. An explanation of how your substantial intcrests will be affected by the action described in the FAR; 3. A statement of when and how you received the F. AR; 4. Fora request for formal hearing, a statement of all disputed issues of material fact; 5. Fora request for formal hearing, a concise statement of the ultimate facts alleged, as well as the rules and statutes which entitle you to Telief; : 6. Fora request for formal hearing, whether you request mediation, if it is available; 7. For a request for informal hearing, what bases support an adjustment to the amount owed to the Agency; and 8. A demand for relief. A formal hearing will be held if there are disputed issues of material fact. Additionally, mediation may be available in conjunction with a formal hearing. Mediation is a way to use a neutral third party to assist the parties in a legal or administrative proceeding to reach a settlement of their case. If you and the Agency agree to mediation, it does not mean that you give up the right to a hearing. Rather, you and the Agency will try to settle your case first with mediation. Tf you request mediation, and the Agency agrees to it, you will be contacted by the Agency to set up a time for the mediation and to enter into a mediation agreement. If a mediation agreement is not reached within 10 days following the request for mediation, the matter -will proceed without mediation. The mediation must be concluded within 60 days of having entered into the agreement, unless you and the Agency agree to a different time period. The mediation agreement between you and the Agency will include provisions for sclecting the mediator, the allocation of costs and fees associated with the mediation, and the confidentiality of discussions and documents involved in the mediation. Mediators charge hourly fees that must be shared equally by you and the Agency. 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Shipp Cardinal 8/15/2005 791058 1 Cardinal 8/25/2005 881593 ABILIFY 15MG TABS 1 30 30 Cardinal 8/25/2005 881597 ABILIFY 1S5MG TABS 2 30 60 Cardinal 8/29/2005 902946 ABILIFY 15MG TABS 1 30 30 Cardinal 8/29/2005 902948 ABILIFY 1SMG TABS 2 30 60 Cardinal 8/29/2005 902956 ABILIFY 15MG TABS 1 30 30 Cardinal 8/30/2005 912207 ABILIFY 15MG TABS 3 30 90 Cardinal 9/12/2005 999712 ABILIFY 15MG TABS 4 30 30 Cardinal 9/12/2005 $99717 ABILIFY 15MG TABS 4 30 30 Cardinal 9/14/2005 1024276 ABILIFY 15MG TABS 1 30 30 Cardinal 9/15/2005 1034422 ABILIFY 15MG TABS 1 30 30 Cardinal 9/26/2005 1108713 ABILIFY 1SMG TABS 1 30 30 Cardinal 9/28/2005 1108714 ABILIFY 15MG TABS 1 30 30 Cardinal 9/27/2005 1124704 ABILIFY 15MG TABS 2 30 60 Cardinal 9/27/2005 1124731 ABILIFY 15MG TABS 1 30 30 Cardinat 9/29/2005 1146258 ABILIFY 15MG TABS 1 30 30 Cardina 9/29/2005 1146262 ABILIFY 15MG TABS 3 30 90 Cardinal 10/5/2005 1192557 ABILIFY 15MG TABS 1 30 30 Cardina 10/10/2005 1217189 ABILIFY 15MG TABS 1 30 30 Cardina 10/14/2005 1257074 ABILIFY 15MG TABS 1 30 30 Cardinal 10/17/2005 1272799 ABILIFY 15MG TABS 1 30 30 Cardinal 10/19/2005 1298947 ABILIFY 15MG TABS 1 30. 30 Cardinal 10/27/2005 1353780 ABILIFY 15MG TABS 3 30 90 Cardinal 10/27/2005 1353777 ABILIFY 15MG TABS 4 30 30 Cardina 10/31/2005 1370709 ABILIFY 15MG TABS 2 30 60 Cardinal 10/31/2005 1370806 ABILIFY 15MG TABS 2 30 60 Cardinal 14/2/2005 1398925 ABILIFY 15MG TABS 1 30 30 Cardinal 11/11/2005 1480110 ABILIFY 15MG TABS 1 30 30 Cardinal 11/18/2005 1538685 ABILIFY 15MG TABS 1 30 30 Cardinal 11/22/2005 1556873 ABILIFY 15MG TABS 1 30 30 Cardinal 11/22/2005 1556878 ABILIFY 15SMG TABS 2 30 60 Cardinal 11/23/2005 1573553 ABILIFY 15MG TABS 3 30 90 Cardinal 11/25/2005 1584639 ABILIFY 15MG TABS 1 30 30 Cardinal 11/28/2005 1596696 ABILIFY 15MG TABS 3 30 90 116 3480 Cardinal 12/1/2004 8554332 ABILIFY 20MG TABS 2 30 60 Cardinal 1/19/2005 8964791 ABILIFY 20MG TABS 2 30 60 Cardinal 4/5/2005 9660446 ABILIFY 20MG TABS 1 30 30 Cardinal 4/8/2005 9701773 ABILIFY 20MG TABS 1 30 30 Cardinal 4/15/2005 9769768 ABILIFY 20MG TABS 1 30 30 Cardinat 4/22/2005 9834433 ABILIFY 20MG TABS 4 30 30 Cardinal 4/28/2005 9886981 ABILIFY 20MG TABS 1 30 30 Bellco §/3/2005 9424853 ABILIFY 20MG TABS 2 30 60 Belico §/13/2005 9439751 ABILIFY 20MG TABS 2 30 60 Cardinal 6/6/2005 214635 ABILIFY 20MG TABS 1 30 30 Cardinal 7/6I2005 = 480967 ABILIFY 20MG TABS 4 30 30 Cardinal 7/20/2005 596573 ABILIFY 20MG TABS 1 30 30 Cardinal 7/27/2005 = 655812 ABILIFY ZOMG TABS 1 30 30 Cardinal 7/28/2005 666494 ABILIFY 20MG TABS 1 30 30 (Page 8 of 48) Wellseripts LLC INVOICE REVIEW Prowider # 026820800 ABILIFY 20MG TABS Cardinai 4 Cardinal 8/3/2005 707078 = ABILIFY 20MG TABS 1 Cardinal 8/4/2005 716272 ABILIFY 20MG TABS 2 Cardinal 8/5/2005 727080 ABILIFY 20MG TABS 1 Cardinal 8/9/2005 752202 ABILIFY 20MG TABS 1 Cardinal 8/18/2005 823986 ABILIFY 20MG TABS 1 Cardinal 8/18/2005 823979 ABILIFY 20MG TABS 1 Cardinal 8/19/2005 837948 ABILIFY 20MG TABS 1 Cardinal 8/24/2005 869158 ABILIFY 20MG TABS 1 Cardinal 8/29/2005 902946 ABILIFY 20MG TABS 1 Cardinal 8/29/2005 902957 ABILIFY 20MG TABS 1 Cardinal 9/7/2005 968721 ABILIFY 20MG TABS 4 Cardinal 9/19/2005 1054543 ABILIFY 20MG TABS 4 Cardinal 9/20/2005 1067199 ABILIFY 20MG TABS 1 Cardinal 9/29/2005 1146260 ABILIFY 20MG TABS 2 Cardinal 10/6/2005 1202484 ABILIFY 20MG TABS 3 Cardinal 10/18/2005 1287251 ABILIFY 20MG TABS 1 Cardinal 10/20/2005 1311217 ABILIFY 20MG TABS 1 Cardinal 10/27/2005 1353780 ABILIFY 20MG TABS 1 Cardinal 11/7/2005 1437858 ABILIFY 20MG TABS 2 Cardinal 41/47/2005 1524077 ABILIFY 20MG TABS 1 47 1410 Cardinal 12/2/2004 8562529 ABILIFY 30MG TABS 2 30 60 Cardinal 12/15/2004 8675501 ABILIFY 30MG TABS 1 30 30 Cardina 12/17/2004 8698886 ABILIFY 30MG TABS 2 30 60 Cardinal 12/20/2004 8710356 ABILIFY 30MG TABS 1 30 30 Cardina 12/21/2004 8724586 ABILIFY 30MG TABS 1 30 30 Cardinal 12/21/2004 8724595 ABILIFY 30MG TABS 1 30 30 Cardina 12/23/2004 8747265 ABILIFY 30MG TABS 2 30 60 Cardina 12/28/2004 8775907 ABILIFY 30MG TABS 1 30 30 Cardinal 1/3/2005 8812583 ABILIFY 30MG TABS 4 30 30 Cardinal 1/4/2005 8827487 ABILIFY 30MG TABS 1 30 30 Cardinal 1/11/2005 8892068 ABILIFY 30MG TABS 2 30 60 Cardina 18/2005 8956215 ABILIFY 30MG TABS 1 30 30 Cardina. 1/18/2005 8986222 ABILIFY 30MG TABS 2 30 60 Cardinal 1/19/2005 8964791 ABILIFY 30MG TABS 2 30 60 Cardinal 1/20/2005 8976487 ABILIFY 30MG TABS 1 30 30 Cardinal 1/20/2005 8976494 ABILIFY 30MG TABS 1 30 30 Cardinal 1/26/2005 9025642 ABILIFY 30MG TABS 1 30 30 Cardinal 1/26/2005 9025744 ABILIFY 30MG TABS 4 30 30 Cardinal 1/26/2005 9025739 ABILIFY 30MG TABS 4 30 30 Cardinal 2/1/2005 9079101 ABILIFY 30MG TABS 1 30 30 Cardinal 2/8/2005 9138551 ABILIFY 30MG TABS 3 30 90 Cardinai 2/9/2006 9152356 ABILIFY 30MG TABS 4 30 30 Cardinal 2/11/2005 9177628 ABILIFY 30MG TABS 1 30 30 Cardinal 2/18/2005 9240012 ABILIFY 30MG TABS 1 30 30 Cardinal 2/21/2005 9250274 ABILIFY 30MG TABS 1 30 30 Cardinai 2/24/2005 9293161 ABILIFY 30MG TABS 2 30 60 Cardinal 2/24/2008 9293259 ABILIFY 30MG TABS 4 30 30 (Page 9 of 48) Weilscripts LLC INVOICE REVIEW Provider # 026820800 ‘ oem nae
The Issue The issue for consideration in this hearing was whether the Agency for Health Care Administration should cancel Petitioner's Medicaid provider number for the reasons set out in its letter of October 1, 1995, as amended.
Findings Of Fact Petitioner, Alpha House of Tampa, Inc., is a provider of community mental health services. Its programs deal with all pregnant women and include several which pertain to drugs, alcohol and mental health. These services provided to pregnant woman at Alpha are unique to Hillsborough County because of Alpha's ability to provide residential programs as opposed to merely the day treatment programs offered at other facilities. In March, 1993, Alpha started billing Medicaid for the services it provided to Medicaid qualified patients. At the time, Francis C. Powers, Alpha's Executive Director, telephonically contacted the Medicaid fiscal agent's office and asked what she needed to do in order for Alpha to be declared eligible for Medicaid reimbursements. She was never told it was necessary for Alpha to have a written contract with the ADM, (alcohol, drug and mental health), office. Because of that, Ms. Powers concluded the routine provider agreement Alpha had with Medicaid, entered into on March 13, 1993, was enough. In that regard, Alpha received two letters, both dated March 13, 1993, from the Department of Health and Rehabilitative Services. One was from Gary Clarke, Assistant Secretary for Medicaid, and the other was from Consultec, Inc., the Medicaid fiscal agent for the Department. Both letters welcomed Alpha House to the Florida Medicaid program and neither indicated any need for additional contracts with ADM in order to bill Medicaid for services rendered. As a result of the income derived from Medicaid services Alpha has provided and for which it has been reimbursed, Alpha was able to employ additional staff to provide more comprehensive programs. In 1995 Alpha received $133,918 in reimbursement funds, which equals approximately 18 percent of its annual budget. As a result of the loss of Medicaid funds proposed as a result of the termination of the instant reimbursement, Alpha will have to eliminate the drug and alcohol residential treatment program for 33 residents who will now have to get their drug and alcohol treatment at day treatment centers. Alpha personnel anticipate that because this treatment may not be sought and received, these residents will have low weight babies with potential medical problems, all at an added dollar cost to the community. Paragraphs 8 and 9 of the Medicaid Provider Agreement Alpha signed on March 13, 1993 provide: The provider and the Department agree to abide by the Florida Administrative Code, Florida Statutes, policies, procedures, manuals of the Florida Medicaid Program and Federal laws and regulations. The agreement may be terminated upon thirty days written notice by either party. The Department may terminate this agreement in accordance with Chapter 120, Florida Statutes. Petitioner has, in the past, billed Medicaid for mental health services provided and has been paid in response to those billings. It does not now have, nor has it had in the past, a contract with the Department of Health and Rehabilitative Services' Alcohol, Drug Abuse and Mental Health office to provide ADM services to its residents.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency for Health Care Administration enter a Final Order in this case cancelling Alpha House of Tampa, Inc.'s Medicaid provider number 0299588-00. DONE and ENTERED this 26th day of April, 1996, in Tallahassee, Florida. ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 26th day of April, 1996. COPIES FURNISHED: Lynette M. Wenner, Esquire Gillick & Wenner 100 North Tampa Street, Suite 2675 Tampa, Florida 33602 Gordon B. Scott, Esquire Agency for Health Care Administration 2727 Mahan Drive Ft. Knox Building Number 3 Tallahassee, Florida 32308-5403 Sam Power Agency Clerk Agency for Health Care Administration Ft. Knox Building Number 3, Suite 3431 2727 Mahan Drive Tallahassee, Florida 32308 Jerome W. Hoffman General Counsel Agency for Health Care Administration Ft. Knox Building Number 3 Tallahassee, Florida 32308
The Issue The issue for determination is whether Petitioner must reimburse Respondent for payments totaling $1,140,763.88 that Petitioner received from the Medicaid Program in compensation for the provision of prescription drugs between late-August and November of 1998. Respondent contends that Petitioner is not entitled to retain the payments in question because Petitioner allegedly has failed to demonstrate that it had available during the pertinent period a sufficient quantity of the prescription drugs in question.
Findings Of Fact The parties' Joint Stipulation of Facts and the evidence presented at final hearing established the facts that follow. The Parties The Agency for Health Care Administration (the “Agency”) is responsible for administering the Florida Medicaid Program. As one of its duties, the Agency must recover "overpayments . . . as appropriate," the term "overpayment" being statutorily defined to mean "any amount that is not authorized to be paid by the Medicaid program whether paid as a result of inaccurate or improper cost reporting, improper claiming, unacceptable practices, fraud, abuse, or mistake." See Section 409.913(1)(d), Florida Statutes. Palm Beach Pharmacy, Inc. (“PBPI”), d/b/a Eddie’s Drug (“Eddie’s”) was, at all times material hereto, a duly contracted Medicaid provider, having entered into a Medicaid Provider Agreement with the Agency and been assigned a Medicaid Provider Number: 106343000. Eddie’s is a Florida licensed pharmacy.1 As an enrolled Medicaid provider, Eddie’s is authorized to dispense drugs and supplies to Medicaid recipients. In return, Eddie’s has agreed to comply with all governing statutes, rules, and policies, including those policies set forth in the Florida Medicaid Prescribed Drug Services Coverage, Limitations and Reimbursement Handbook (the “Handbook”). The Agency, which prepared the Handbook and furnishes it to Medicaid providers, has incorporated the Handbook by reference into Rule 59G-4.250(2), Florida Administrative Code. PBPI, which owned and operated a number of pharmacies (including Eddie’s), maintained its corporate headquarters in West Palm Beach, Florida. Eddie’s was located in Miami, Florida. On July 1, 1998, PBPI acquired a drug store known as Jay’s Drugs (“Jay’s”). Jay’s was located in Miami, Florida, across the street from Eddie’s. Thus, before both stores came under common ownership, they had been competitors. This case arises out of the Agency's attempt to recover alleged overpayments on Medicaid claims for which Eddie’s was paid several years ago. The "audit period" that is the subject of the Agency's recoupment effort is April 1, 1998 to July 31, 1999, although the actual period in controversy is much shorter. From July 1, 1998, until the end of the audit period, PBPI owned and operated both Eddie’s and Jay’s. The Underlying Facts The transactions at the heart of this case occurred between late-August and November of 1998, during which period (the “Focal Period”) Medicaid reimbursed Eddie’s more than $1 million for prescription drugs including Neupogen and Epogen/Procrit (collectively, the “Drugs”). The Drugs are used to treat AIDS patients and persons infected with HIV. Prior to the Focal Period, Eddie’s had not dispensed $1 million worth of the Drugs——or any figure approaching that amount——in three or four months’ time. The reason for the dramatic spike in Eddie’s business is that Eddie’s was dispensing the Drugs to customers of Jay’s pursuant to an arrangement designed to manipulate PBPI’s contractual obligations to the former owner of Jay’s under the purchase and sale agreement by which PBPI had acquired Jay’s. Essentially, the arrangement was this. Jay’s was dispensing the Drugs to a large number (approximately 150) of Medicaid beneficiaries who were receiving treatment at a nearby clinic. Because the Drugs were administered to the patients via intravenous infusion, the clinic typically obtained the Drugs from Jay’s in bulk. To fill these prescriptions, Jay’s ordered the Drugs from a wholesale supplier, which usually delivered the Drugs to Jay’s the next day. At some point before the Focal Period, arrangements were made to have the clinic present its prescriptions for the Drugs to Eddie’s rather than Jay’s.2 The evidence does not show, exactly, how this was accomplished, but whatever the means, the clinic abruptly began bringing prescriptions for the Drugs to Eddie’s.3 This diversion of Jay’s’ business to Eddie’s was intended to deprive Jay’s of Medicaid reimbursements to which Jay’s’ former owner had access as a source of funds for paying down a note that PBPI had given for the purchase of Jay’s. By having Eddie’s dispense the Drugs and submit the Medicaid claims, Medicaid money flowed into Eddie’s’ bank account (rather than Jay’s’ bank account) and hence was not immediately available to the former owner of Jay’s to reduce PBPI’s debt. During the Focal Period, Eddie’s did not purchase the Drugs from a wholesaler but instead acquired them from Jay’s. The process by which this was accomplished involved a pharmacy technician named Wright, who was employed at Eddie’s, and a pharmacist named Shafor, who worked at Jay’s. Wright (at Eddie’s) accepted the prescriptions for the Drugs as the clinic brought them in Then, she called Shafor (at Jay’s) and told him the quantities needed to fill the prescriptions. Shafor ordered the Drugs from a wholesaler, which delivered them in bulk to Jay’s, usually the next day. Upon receiving the Drugs, Shafor personally delivered them to Wright, who, recall, was across the street at Eddie’s. Wright labeled and dispensed the Drugs. Eddie’s submitted a claim for the Drugs to Medicaid, and Medicaid paid Eddie’s. PBPI maintained separate accounting ledgers for Eddie’s and Jay’s, respectively. The company’s accountants recorded the subject transactions in these ledgers so that Jay’s——not Eddie’s——would “recognize” the sales of the Drugs. In a nutshell, this was done through “inter-company” transfers whereby all of the money that Eddie’s received from Medicaid for the Drugs was moved, on the books, into an account of Jay’s. In this way, any profit from the sales of the Drugs (the difference between the wholesale cost of the Drugs and the Medicaid reimbursement therefor, less overhead) was realized on Jay’s’ books.4 The Medicaid payments to Eddie’s that the Agency seeks to recoup were included in four remittance vouchers dated September 2, 1998; September 30, 1998; October 28, 1998; and November 25, 1998, respectively. The September 2 payment to Eddie’s totaled $287,205.52. Of this amount, $276,033.23 reimbursed Eddie’s for dispensing the Drugs. Eddie’s’ accounting ledger reflects that, as of September 30, 1998, the sum of $276,033.23 had been transferred from an account of Eddie’s to an account of Jay’s. The September 30 payment to Eddie’s totaled $439,175.77, of which $432,700.36 was paid in consideration of the Drugs. The October 28 Medicaid payment was $431,753.82, of which total the Drugs accounted for $424,202.76. Eddie’s’ accounting ledger reflects that, as of October 31, 1998, the sum of $870,929.59 (439,175.77 + 431,753.82) had been transferred from an account of Eddie’s to an account of Jay’s. The November 25 payment to Eddie’s totaled $407,088.00. Of this amount, $393,063.00 reimbursed Eddie’s for dispensing the Drugs. Eddie’s’ accounting ledger reflects that, as of November 30, 1998, the sum of $407,088.00 had been transferred from an account of Eddie’s to an account of Jay’s. The Agency’s Allegations On October 31, 2000, the Agency issued its Final Agency Audit Report (“Audit”) in which Eddie’s was alleged to have received $1,143,612.68 in overpayments relating to the Drugs. In the Audit, the Agency spelled out its theory of the case; indeed, the Audit is the only document in the record that does so. The Agency cited several statutory provisions. First, Section 409.913(7)(e), Florida Statutes, was referenced. This section states: When presenting a claim for payment under the Medicaid program, a provider has an affirmative duty to supervise the provision of, and be responsible for, goods and services claimed to have been provided, to supervise and be responsible for preparation and submission of the claim, and to present a claim that is true and accurate and that is for goods and services that: * * * (e) Are provided in accord with applicable provisions of all Medicaid rules, regulations, handbooks, and policies and in accordance with federal, state, and local law. Section 409.913(7)(e), Florida Statutes. The Agency did not allege (or prove), however, that Eddie’s had violated Section 409.913(7)(e), Florida Statutes.5 Put another way, the Agency did not plead or prove lack of supervision, submission of a false claim, or that the Drugs were not provided in accordance with applicable law. Next, the Agency cited Section 409.913(8), Florida Statutes, which provides: A Medicaid provider shall retain medical, professional, financial, and business records pertaining to services and goods furnished to a Medicaid recipient and billed to Medicaid for a period of 5 years after the date of furnishing such services or goods. The agency may investigate, review, or analyze such records, which must be made available during normal business hours. However, 24-hour notice must be provided if patient treatment would be disrupted. The provider is responsible for furnishing to the agency, and keeping the agency informed of the location of, the provider's Medicaid- related records. The authority of the agency to obtain Medicaid-related records from a provider is neither curtailed nor limited during a period of litigation between the agency and the provider. The Agency further alleged, as fact, that Eddie’s had failed, upon request, “to submit invoices from [its] suppliers to substantiate the availability of drugs that [were] billed to Medicaid” and thus had not “fully substantiated such availability.” The Agency, however, did not invoke any of the available remedial provisions as authority to impose a sanction for this alleged failure to turn over Medicaid-related records. See, e.g., Sections 409.913(14)(b), (c), and (d), Florida Statutes. The Agency cited Section 409.913(10), Florida Statutes, which authorizes the Agency to “require repayment for inappropriate, medically unnecessary, or excessive goods or services from the person furnishing them, the person under whose supervision they were furnished, or the person causing them to be furnished.” There was no allegation (or proof), however, that the Drugs which Eddie’s had purported to dispense (i.e. the Drugs for which it had submitted Medicaid claims) were “inappropriate, medically unnecessary, or excessive.” Thus, Eddie’s was not alleged (or shown) to have violated Section 409.913(10), Florida Statutes. Finally, the Agency relied upon Section 409.913(14)(n), Florida Statutes, which is the basis of the Agency’s legal theory. This section provides: The agency may seek any remedy provided by law, including, but not limited to, the remedies provided in subsections (12) and (15) and s. 812.035, if: * * * (n) The provider fails to demonstrate that it had available during a specific audit or review period sufficient quantities of goods, or sufficient time in the case of services, to support the provider's billings to the Medicaid program[.] The Agency contended, additionally, that “[b]illing Medicaid for drugs that have not been demonstrated as available for dispensing is a violation of the Medicaid laws and regulations and has resulted in the finding that [Eddie’s] ha[s] been overpaid by the Medicaid program.” (Emphasis added). The Agency explained, “Medicaid payments that have been substantiated by documented inventory are assumed to be valid; and payments in excess of that amount are regarded to be invalid.” Thus, the Agency’s theory of recovery is that Eddie’s must forfeit “overpayments” arising from its failure to demonstrate the availability, in inventory, of a sufficient quantity of the Drugs for which claims were submitted, as required by Section 409.913(14)(n), Florida Statutes. After the Audit was issued, the Agency accepted a handwritten note regarding the transfer of a small quantity of Drugs from Jay’s to Eddie’s as sufficient to demonstrate the availability of such amount. This resulted in a slight reduction of the amount of the alleged overpayment, to $1,140,763.88. The Separate Audit of Jay’s The Agency conducted a separate audit of Jay’s, concerning which some evidence was introduced at hearing. Without getting into unnecessary detail, the audit of Jay’s revealed that Jay’s had purchased, during and around the Focal Period, a quantity of the Drugs that exceeded the number of units that Jay’s had billed to Medicaid. It was Eddie’s theory that this “excess inventory” of Jay’s matched, more or less, the alleged inventory shortfall at Eddie’s, thereby corroborating the testimony concerning the transfer of these Drugs from Jay’s to Eddie’s for dispensation. At hearing, the parties sharply disputed whether, in fact, Jay’s had transferred the Drugs to Eddie’s. The Agency, of course, maintained that such transfers were not properly documented; Eddie’s argued that the documents and other evidence, including testimony about the transactions in question, adequately demonstrated that the transfers had, in fact, occurred. There was no dispute, however, that if it were found that such transfers had occurred, and if, further, the documents (and other evidence) pertaining to the inventory of Jay’s were accepted as proof of the quantities of Drugs so transferred, then all but $176,078.30 worth of the Drugs could be accounted for. Thus, as counsel for Eddie’s conceded at hearing, the Agency is entitled to recoup some sum of money. The question is whether that sum is $1,140,763.88 or $176,078.30. Ultimate Factual Determination Based on all of the evidence in the record, including the deposition testimony received through the parties’ joint stipulation, it is determined that, more likely than not, Eddie’s had available during the Focal Period a sufficient quantity of the Drugs to support all but $176,078.30 worth of the claims in dispute.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency enter a final order requiring Eddie’s to repay the Agency the principal amount of $176,078.30. DONE AND ENTERED this 12th day of March, 2002, in Tallahassee, Leon County, Florida. JOHN G. VAN LANINGHAM 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 12th day of March, 2002.
Findings Of Fact Petitioner GLADES HEALTH PLAN, INC., (GLADES) is a for-profit corporation with offices in Belle Glade, Florida. GLADES was formed for the purpose of applying for and obtaining a contract with the State of Florida for a Medicaid Prepaid Health Plan. Respondent, AGENCY FOR HEALTH CARE ADMINISTRATION, (AHCA), is the agency of the State of Florida statutorily responsible for the administration of the Florida Medicaid prepaid health plan program. On October 5, 1994, GLADES filed a Medicaid prepaid health plan contract application with AHCA. In December of 1994, a series of newspaper articles were published which raised concerns regarding the quality of health care and service provided by Medicaid prepaid health plans in Florida. In response to these concerns, AHCA, beginning in the latter part of December of 1994, implemented a number of administrative changes, and also undertook a comprehensive review to assess the quality of health care and service provided by existing Medicaid prepaid health plans. In order to accomplish this comprehensive review, AHCA redirected all of the agency's managed care staff to conduct a survey of the assessment of the quality of health care and services provided by the existing Medicaid prepaid health plans. Because AHCA's managed care staff was redirected to conduct this comprehensive review of the existing Medicaid prepaid health plans, there were insufficient staff available to review Medicaid prepaid health plan contract applications. AHCA was also concerned with contracting with additional health plans until the assessment of the existing plans was completed. AHCA accordingly placed a temporary moratorium on the consideration of applications for Medicaid prepaid health plan contracts until the completion of the comprehensive review. The purpose of the agency's comprehensive review of existing health plans and imposition of a temporary moratorium on pending contract applications for new health plans was to assess the quality of care and service of the existing Florida Medicaid prepaid health plan program, and to develop in-house agency policies to address problems identified by agency staff conducting the comprehensive review. On December 30, 1994, James M. Barclay, vice-president of GLADES, received a letter from AHCA relating to another organization with which he is affiliated, Heartland Healthcare, Inc., which like GLADES, had filed a Medicaid prepaid health plan contract application that was pending with AHCA. The December 30, 1994 letter from AHCA to Barclay recited AHCA's concern with the quality of health care and service provided by existing Medicaid prepaid health plans. The letter further stated that due to the implementation of administrative changes, and the need for agency staff to be committed to the comprehensive review of existing Medicaid prepaid health plans, AHCA had imposed a moratorium on the consideration of Medicaid Prepaid Health Plan contract applications to last approximately sixty to ninety days. GLADES did not receive a letter, or other communication from AHCA notifying GLADES of AHCA's imposition of a temporary moratorium on the consideration of its Medicaid prepaid health plan contract application, and no action was taken by AHCA with regard to the GLADES' contract application during this period. Upon completion of the agency's comprehensive review of existing Medicaid prepaid health plans, AHCA, in the spring of 1995, discontinued the moratorium on consideration of Medicaid prepaid health plan contract applications. In processing Medicaid prepaid health plan contract applications subsequent to the discontinuation of the moratorium, AHCA determined not to contract with any prepaid health plan unless the plan was a public entity, or commercially #licensed under the provisions of Chapter 641, Florida Statutes. The basis for AHCA's decision in this regard was that the agency's comprehensive review of Medicaid prepaid health plans indicated that the existing commercially licensed Medicaid prepaid health plans provided a better quality of care to Medicaid recipients than the health plans that were not commerically licensed. On September 13, 1995, AHCA filed with the Department of State, Bureau of Administrative Code, proposed rules amending Rule 59G-8.100, Florida Administrative Code. The proposed rule amendments set out criteria for AHCA's consideration of Medicaid prepaid health plan contract applications. The criteria include commercial licensure under Chapter 641, Florida Statutes, managed care accreditation, prior health care experience, and need for managed care services. Under the proposed rule amendments, failure to meet such criteria, including commercial licensure, is grounds for denial of a Medicaid prepaid health plan contract application. AHCA has not promulgated or instituted proceedings to promulgate rules regarding the temporary moratorum imposed in this case. GLADES is not commercially licensed under the provisions of Chapter 641, Florida Statutes. Subsequent to the discontinuation of the moratorium, AHCA has taken no action with regard to GLADES' Medicaid prepaid health plan contract application. Because GLADES is not commercially licensed, AHCA presently considers the GLADES' Medicaid prepaid health plan contract application inactive. AHCA has not written, published or otherwise made a formal statement of agency policy to the effect that Medicaid prepaid health plan contracts are not licenses as that term is defined in Section 120.52(9), Florida Statutes. AHCA has not promulgated or instituted proceedings to promulgate rules to the effect that Medicaid prepaid health plan contracts are not licenses.
The Issue The issue for determination is whether Petitioner received Medicaid overpayments and, if so, the total amount of the overpayments. Petitioner agreed at the onset of the hearing not to contest the findings of the Agency that Petitioner received Medicaid monies to which he was not entitled. Therefore, the issue remaining for determination is: Whether Respondent calculated the overpayment amount of $52,850.82 using a valid statistical formula and a valid sample of recipients and claims during the audit period of March 1, 2000, through March 1, 2002.
Findings Of Fact Based upon observation of the witnesses while testifying, the documentary materials received in evidence, official recognition granted, evidentiary rulings made, and the entire record compiled herein, the following relevant and material facts are established. The Agency is charged with administration of the Medicaid program in Florida pursuant to Sections 409.907 and 409.913, Florida Statutes (2003). Among its administrative duties, the Agency operates a program to oversee the activities of Florida Medicaid providers to ensure that fraudulent and abusive behavior and neglect occur to the minimum extent possible and to recover overpayments and impose sanctions as appropriate. "Overpayment" is statutorily defined to mean "any amount that is not authorized to be paid by the Medicaid Program, whether paid as a result of inaccurate or improper cost reporting, improper claiming, unacceptable practices, fraud, abuse or mistake." § 409.913(1)(d), Fla. Stat. (2000). The FAAR, covering the audit period of March 1, 2000, through March 1, 2002, together with the Agency's work papers, set out a Medicaid overpayment amount of $52,850.82 that the Agency seeks to recoup from Petitioner. Petitioner is a physician enrolled in the Medicaid program under provider number 0580091-00, who operated under his provider number during the audit period of March 1, 2000, through March 1, 2002, under the auspices of a standard Medicaid provider agreement. As a part of the Medicaid provider agreement, the provider agrees to comply with all local, state and federal laws, rules, regulations, licensure laws, Medicaid bulletins, and statements of policy. Petitioner participated in the Medicaid program during the FAAR period of March 1, 2000, through March 1, 2002, and received payment for the services that the Agency now questions and are the subject of the audit. During the above audit period, the applicable statutes, rules, and Medicaid handbooks required Petitioner to retain all medical, fiscal, professional, and business records on all services provided to a Medicaid recipient. Petitioner had to retain these records for at least five years from the date of services. The Florida Medicaid program prepares and furnishes handbooks to all enrolled Medicaid providers, including Petitioner. These handbooks set forth the Medicaid policies with regard to services rendered and billed by providers. Petitioner had a duty to make sure that each claim submitted was true and accurate and was for goods and services that were provided, by an enrolled Medicaid provider, in accordance with the requirements of Medicaid rules, handbooks, and policies, and in accordance with federal and state law. Medicaid providers who do not comply with the Medicaid documentation and record retention policies hereinabove may be subject to administrative sanctions and/or recoupment of Medicaid payments. Medicaid payments for services that lack required documentation and/or appropriate signatures will be recouped. Mr. Hector Tapining (Mr. Tapining) and Phyllis Stiver (Nurse Stiver), registered nurse consultant for Medicaid Program Integrity, conducted an on-site visit to Petitioner's office and requested records. From the files of Petitioner, Mr. Tapining generated a random list of 30 Medicaid recipients (the cluster sample) who had received services by Petitioner during the two- year audit period of March 1, 2000, through March 1, 2002. The Agency thereafter generated worksheets reflecting: (1) the total number of Medicaid recipients during the audit period; (2) total number of claims made by Petitioner, with dates of medical services provided; (3) the total amount of money paid Petitioner during the audit period; and (4) the analyst's worksheets representing his review of each recipient's claim(s) for the audit period. Additional Agency-generated worksheets reflected: (1) the total number of Medicaid recipients during the audit period; (2) the total number of claims of Petitioner, with dates of service; (3) the total amount of money paid to Petitioner during the audit period; and (4) the analyst's worksheets representing his review of each recipient's claim(s) for the audit period. Mr. Tapining provided the worksheets to Nurse Stiver for her review of compliance with Medicaid enrollment and documentation. Mr. Tapining provided the worksheets to E. Rawson Griffin, III, M.D. (Dr. Griffin), the medical records consultant, for his review and evaluation of appropriate billing codes. The formula used by the Agency is a valid statistical formula, the random sample used by the Agency was statistically significant, the cluster sample was random, and the algebraic formula and the statistical formula used by the Agency are valid formulas. Dr. Griffin, after review of 30 patient records, concluded that Petitioner engaged in a general pattern of over coding at the highest level of code (99205) for services rendered that appeared to be rather straight-forward and simple for the medical services rendered at the time of each visit. Over coding is the term employed when supporting documentation for medical billing does not support the billing code chosen and assigned by the provider. In his review, Dr. Griffin saw no middle codes (99213s and/or 99214s) billed by Petitioner. Dr. Griffin opined that it was extraordinary that Petitioner would see and service 30 patients on their first visits, who at that time presented a complaint necessitating a medical necessity level code 99205, the highest level of Medicaid service. Continuing, Dr. Griffin explained that over coding is entering in the patient's billing statement a code higher than the patient's medical complaint and the Patient's recorded medical necessity warranted for the visit or visits (1st, 2nd, 3rd, etc.) on the date those services were provided by Petitioner. In Dr. Griffin's opinion, Medicaid billing codes are to be determined by consideration of the following medical factors: (1) the patient's particular medical complaint and the degree of complexity of that complaint at the time of the initial visit, (2) the type of and the complexity of medical examinations and the tests necessarily required to be administered based upon the type and complexity of the initial complaint, and (3) the resulting interpretations of the tests and the examinations administered for treatment of the complaint. It is only after completion of the above analysis and documentation in the patient's medical records, would a code 22915 billing be appropriate. Dr. Griffin's analysis of the cluster sample of 30 Medicaid records of patients serviced by Petitioner resulted in his down coding Petitioner’s billing as shown below.2 I.D. Number Service Date Code Billed Adjustment B.K. 1 03-29-2000 215 (5) 214 B.K. 1 07-19-2000 214 213 1 08-17-2000 214 213 1 12-11-2000 215 214 1 02-22-2001 215 214 1 05-23-2001 214 213 1 06-24-2001 214 212 J.A.C. 4 No date 215 214 J.R. 5 10-02-2000 215 213 B.F. 6 07-25-2000 215 213 F.H. 8 04-10-2000 215 213 F.H. 8 05-04-2000 214 213 (2 visits) D.C. 9 01-23-2000 215 213 T.M. 10 06-07-2000 215 213 T.M. 10 06-28-2000 214 213 D.W. 13 01-12-2000 215 213 P.L. 14 01-10-2000 214 213 I.H. 15 12-18-2000 215 213 M.V. 17 04-10-2000 215 213 R.R. 21 04-17-2001 214 213 S.K. 25 11-20-2000 212 211 A.H. 26 12-19-2000 215 212 T.P. 27 02-20-2000 215 213 M.R. 28 11-14-2002 215 214 E.C. 29 04-28-2000 214 213 E.C. 07-03-2000 214 213 12-28-2000 214 212 01-02-2000 214 212 01-23-2000 214 212 02-06-2000 214 212 04-03-2000 214 212 (6 visits) R.S. 30 04-16-2001 215 213 Nurse Stiver reviewed the cluster sample of 30 Medicaid records of patients serviced by Petitioner for compliance with Medicaid policy(s) to ensure that services billed are the services for which Medicaid pays and are services that meet all aspects of the Medicaid policy(s) as specified in the Medicaid Handbook. Medicaid policy, regarding provider enrollment, requires (all) providers who services Medicaid patients to be (individually) enrolled in the Medicaid program as providers before providing service and billing Medicaid for those services. The Agency verifies the education, credentials, and criminal background of each enrollee to ensure the safety of Medicaid recipients. The individual provider enrollment is required as a condition precedent for providers to bill Medicaid for services and to be paid by Medicaid for those services. The enrollment requirement includes PAs and ARNPs. Nurse Stiver's review of Petitioner's documents sought to ascertain whether each provider who actually rendered services had executed a voluntary enrollment contract agreement between the Agency and that provider. In these contract agreements, the provider agrees to comply with all laws and rules pertaining to the Medicaid program when furnishing a service or goods to a Medicaid recipient, and the Agency agrees to pay a sum, determined by a fee schedule, payment methodology, or other manner, for the service or goods provided to the Medicaid recipient. The Medicaid Handbook requires separate and/or individual enrollment of each and every entity that provides Medicaid service(s) to Medicaid recipients. The mandatory enrollment includes a provider(s) who makes written entries on and/or signs Medicaid documents. Should the medical service provider and the provider documenting the Medicaid recipient's medical files and the provider billing Medicaid for services rendered be different providers, each provider must be individually enrolled in the Medicaid program. Within a chain of provider entities, the failure of one provider entity to be enrolled entitles the Agency to full recoupment of all Medicaid payments made to the enrolled Provider. Nurse Stiver applied the above analysis to the cluster sample of 30 Medicaid recipients' records recovered from Petitioner's files and to the Agency's worksheets. Nurse Stiver's review and her investigation revealed specific instances in which the paid billing claims evidenced that Petitioner's non-enrolled PAs and/or Petitioner's non-enrolled ARNP either provided the medical services or documented the medical services provided to the Medicaid recipients as shown below: Patient Service Date(s) Services and/or documentation 1. B.K. Serviced 9 times Signature-not enrolled 2. E.J. 08-14-01 Records written and signed by PA not enrolled and (not countersigned by Petitioner) 3. E.T. Serviced 4 times Services provided not entitled to Medicaid payment (unauthorized) J.A. (stipulation) Stipulation3 B.F. 11 visits-serviced Provider not enrolled M.R. 7 visits-serviced Provider not enrolled F.H. 11 visits-serviced Provider not enrolled through 12. Stipulations 13. D.W. 2 visits-serviced Provider not enrolled 14. through 17. Stipulations 18. L.A. 5 visits-serviced Provider not enrolled 19. and 20. Stipulations 21. R.R. 3 visits-serviced Provider not enrolled 22. and 23. Stipulations 24. L.S. 1 visit-serviced Provider not enrolled 25. S.K. 3 visits-serviced Provider not enrolled 26. through 28. Stipulations 29. E.C. 12 visits-serviced Provider not enrolled 30. Stipulation After the review and examination of the claims submitted within the cluster sample, Nurse Stiver concluded the above services billed to the Agency were not performed by Petitioner. She opined that either or both of Petitioner's employees, Justo Lugo and Phillip Nguyen (PAs) and/or Andrea McDonald (ARNP) provided or assisted in providing services. As non-enrolled providers in the Medicaid program, the PAs and the ARNP’s participation in providing services to Medicaid recipients and/or participation in assisting Petitioner in providing medical services and/or participation in Petitioner's billing Medicaid for medical services to Medicaid recipients violated Medicaid policy. Respondent established that the Medicaid program payments for services provided by an individual not enrolled as a provider in the Medicaid program are overpayments of which the Agency is entitled to full recoupment. After the reviews and the analysis by Nurse Stiver and Dr. Griffin, using the Agency's formula for calculating the extrapolated overpayments, the Agency determined overpayment in the amount of $64,453.74 to have occurred. Based upon these findings, the Agency issued a Preliminary Agency Audit Report (PAAR) letter setting out the overpayment amount of $64,453.74 and inviting Petitioner to submit additional documentation. Petitioner's additional documentation submittals were reviewed by the Agency. The post-PAAR review resulted in a reduction of overpayment to $52,850.82 as the total overpayment for all claims considered, and sought to be recovered from Petitioner by the Agency. The Agency's worksheets resulting in the $52,850.82 overpayment included: (1) the medical record review summary; (2) a spreadsheet setting out the names of the recipients, the dates of service, the procedure billed, the amount paid by the Agency, the amount allowed by the Agency, and the resulting overpayment; (3) the overpayment calculation using cluster sampling; (4) the patient worksheets, or claims; and (5) the procedure code summary of the claims in the universe, as defined in Section 409.913, Florida Statutes (2000). The formula used by the Agency is a valid statistical formula, the random sample used by the Agency was statistically significant, the cluster sample was random, and the algebraic formula and the statistical formula used by the Agency are valid formulas. The Agency's data and calculations were reviewed by Ian McKeague, Ph.D. (Dr. McKeague). He reproduced the calculations and concluded that $52,850.82 is the correct overpayment amount made by Medicaid to Petitioner. Petitioner produced neither written authority nor expert testimony contesting the validity of the statistical formula and Dr. McKeague's resulting calculation of overpayment. Nurse Stiver, with over 14 years employment with the Agency, worked with the Medicaid policies and handbooks. She worked with Mr. Tapining on the audit of Petitioner documents. Specifically, she reviewed Petitioner's records for compliance with Medicaid policy, to ensure that the services billed are the services Medicaid paid for and that those services met all aspects of Medicaid policy. Nurse Stiver's investigation and review revealed specific instances in which the paid claims show that the PAs and/or the ARNP, not Petitioner himself, provided the services to Medicaid patients. In each case where the Agency determined Petitioner was not entitled to payment, Nurse Stiver reviewed the medical records and determined that the ARNP or one of the PAs, who were not enrolled in the Medicaid program, actually rendered services to Medicaid recipients. Her determination was based upon her many years of nursing experience that the person rendering the services is the person who documents the services rendered. From her review, it appeared that the ARNP or a PA (not enrolled), not Petitioner, documented the service billed to and paid by Medicaid. Services rendered by an ARNP or a PA who is not enrolled as a provider in the Medicaid program cannot be compensated by the Medicaid program. Petitioner argued that he provided all Medicaid services billed to Medicaid and, on those rare occasions reviewed by Nurse Stiver, his employees (either the ARNP or the PAs), who by happenstance would be present in the treatment room, aided him by merely documenting services he himself rendered to the Medicaid patients. Petitioner presented an alternative argument that on other of those rare occasions reviewed by Nurse Stiver, his employees would be in the room when Petitioner actually provided services to Medicaid patients, and, while he was providing those services, he would simultaneously dictate to his employee who would transcribe his dictations on the Medicaid forms. Petitioner elected not to compel attendance by subpoena of his employees, even though the final hearing was continued to provide Petitioner an opportunity to do so. Petitioner's argument, that the proposed testimony by his employees would have been sufficient to challenge the Agency determination that Petitioner's billing was for services performed by a provider who was not enrolled in the Medicaid program, is without a foundation in fact and rejected. The Medicaid Provider Reimbursement Handbook provides, in part, that "Records must be retained for a period of at least five years from the date of service." The handbook goes on to provide in pertinent part: PAs must meet the general Medicaid provider enrollment that are contained in Chapter 2 of the Medicaid Provider Reimbursement Handbook, HFCA-1500 and Child Health Check- Up 221. In addition, PAs must follow the specific enrollment requirements that are listed in this section. * * * PAs must meet the provider requirements and qualification and their practice must be fully operational before they can be enrolled as Medicaid providers. * * * If a PA is employed by or contracts with a physician who can enroll as a Medicaid provider, the physician must enroll as a group provider and the PA must enroll as a treating provider within the group. * * * Services provided by a PA under the direct supervision of a physician may be billed using the physician's provider number instead of the PA's provider number. Direct physician supervision means the physician: (*) Is on the premises when the services are rendered, and (**) reviews, signs, and dates the medical record. * * * Medical records must state the necessity for and the extent of services provided. The following minimum requirements may vary according to the services rendered: * * * Note: See the service-specific Coverage and Limitations Handbook for record keeping requirements that are specific to a particular service. Providers who are not in compliance with the Medicaid documentation and record retention policies described in this chapter may be subject to administrative sanctions and recoupment of Medicaid Payments. Medicaid payments for services that lack required documentation or appropriate signatures will be recouped. Note: See Chapter 5 in this handbook for information on administrative sanctions and Medicaid payment recoupment. Petitioner, by signing a Medicaid provider agreement, agreed that all submissions for payment of claims for services will constitute a certification that the services were provided in accordance with local, state, and federal laws, as well as rules and regulations applicable to the Medicaid program, including the Medical Provider Handbooks issued by the Agency.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent, Agency for Health Care Administration, enter a final order requiring Petitioner, Mazhar G. Nawaz, M.D., to repay Respondent the principal amount of $52,850.82 plus interest as provided in Section 409.913, Florida Statutes (2002). DONE AND ENTERED this 19th day of February, 2004, in Tallahassee, Leon County, Florida. S FRED L. BUCKINE 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 19th day of February, 2004.
The Issue Whether the Department of Health and Rehabilitative Services improperly determined the Petitioners' rate of Medicaid reimbursement for the period January 1, 1990, through June 30, 1990?
Findings Of Fact The Emergency Rule and the Permanent Rule have been determined to be valid in a Final Order entered simultaneously with this Recommended Order. The Department's action in freezing the Medicaid reimbursement rate of the Petitioners in these cases was taken pursuant to the Emergency Rule and the Permanent Rule.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department enter a Final Order in these cases dismissing the Petitioners' amended petitions. DONE and ENTERED this 26 day of May, 1992, in Tallahassee, Florida. LARRY J. SARTIN Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this day of May, 1992. APPENDIX Case Numbers 91-4893, 91-4894, 91-4895, 91-4914, 91-4929, 91-5837 and 91-6191 The parties have submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. The Petitioners' Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection 1 1 and 4. 2 5-6. 3 13. 4 7. 5 3 and 13-14. 6 15. 7 17-19. 8 20. 9 21. 10 22. 11 23. 12 8. 13 12. 14 11. 15 24. 16 25-27. 17 28-29. 18 29. 19 30-32. 20 34-37. See 39. The last three sentences are not relevant. The determination of compliance with specific federal requirements for the Department's action was the responsibility of HCFA. HCFA presumably determined that the Department complied with all federal requirements since it approved the Department's plan amendment. 39. The last two sentences are not relevant. The determination of compliance with specific federal requirements for the Department's action was the responsibility of HCFA. HCFA presumably determined that the Department complied with all federal requirements since it approved the Department's plan amendment. 23 40-41. 24 43. 25 45. 26 46. 27 47. 28 48. The last two sentences are argument. 29 49. 30 42. 31 29 and 32. The weight of the evidence failed to prove the Department's motive for providing assurances to HCFA were anything other than to meet federal requirements. 32 28. 33 55. 34 34-35. See 59-60 and 63. The detailed findings of fact concerning the nature of the Department's inflationary analysis are not necessary. HCFA rejected this analysis and based its decision on other information provided by the Department. Additionally, the determination of compliance with specific federal requirements for the Department's action was the responsibility of HCFA. HCFA presumably determined that the Department complied with all federal requirements since it approved the Department's plan amendment. 35 See 60-63. 36 52-54. 37 54. 38 55 and hereby accepted. 39 59 and hereby accepted. 40 See 60-65. HCFA did not "reject" the Department's proposed plan amendment. 41 See 63. 42-43 See 60-66. 44-46, 50-54 Although the proposed findings of fact concerning what the Department told HCFA are generally correct, these proposed findings of fact are not relevant to this proceeding. As previously stated, the determination of compliance with specific federal requirements for the Department's action was the responsibility of HCFA. HCFA presumably determined that the Department complied with all federal requirements since it approved the Department's plan amendment. 47 Hereby accepted. 48-49 Hereby accepted except for the proposed findings that the Department "misled", "misrepresented" or provided "inaccurate and misleading information." The last sentence of proposed finding of fact 49 is not relevant. 55 67. 56 Hereby accepted. 57 Not relevant. 58 69. 59 70. 60 71. 61 50 and 73. The Department's Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection 1 1. 2 4. 3 5. 4 6. 5 3 and 13-14. 6 15. 7 17-19. 8 20. 9 21. 10 22. 11 23. 12 8. 13 11. 14 24. 15 25-26. 16 Hereby accepted. 17 27 and 29-32. 18 34-37. 19 39-41. 20 41. 21 43. 22 33. 23 42. 24 52-53 and 58. 25 54. 26 55. 27 56. 28 57. 29 60-65. 30 67. 31 68. 32 69. 33 70. 34 71. 35 50 and 73. 36 72. 37 73. 38 Hereby accepted. COPIES FURNISHED: Sam Power Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Building One, Room 407 Tallahassee, Florida 32399-0700 John Slye General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Building One, Room 407 Tallahassee, Florida 32399-0700 Thomas C. Fox, Esquire Michael D. Smith, Esquire 1200 18th Street, N.W. Washington, D.C. 20036 Alfred W. Clark, Esquire Post Office Box 623 Tallahassee, Florida 32302 W. David Watkins, Esquire Post Office Box 6507 Tallahassee, Florida 32314-6507 David Pius Medicaid Counsel Department of Health and Rehabilitative Services 1317 Winewood Boulevard Building 6, Room 230 Tallahassee, Florida 32399-0700
