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.
Findings Of Fact The PROVIDER received the Final Audit Report that gave notice of PROVIDER'S right to an administrative hearing regarding the alleged Medicaid overpayment. The PROVIDER filed a petition requesting an administrative hearing, and then caused that petition to be WITHDRAWN and the administrative hearing case to be CLOSED. PROVIDER chose not to dispute the facts set forth in the Final Audit Report dated August 15, 2013. The facts alleged in the FAR are hereby deemed admitted, including the total amount of $14,569.69, which includes a fine sanction of $2,419.26. The Agency hereby adopts the facts as set forth in the FAR including the amount of $14,569.69 which is now due and owing, from PROVIDER to the Agency.
Conclusions THIS CAUSE came before me for issuance of a Final Order on a Final Audit Report (“FAR”) dated August 15, 2013 (C.1. No. 13-1386-000). By the Final Audit Report, the Agency for Health Care Administration (“AHCA” or “Agency”), informed the Respondent, Amwill Assisted Living, Inc., (hereinafter “PROVIDER’), that the Agency was seeking to recover Medicaid overpayments in the amount of $12,096.28, and impose a fine sanction of $2,419.26 pursuant to Sections 409.913(15), (16), and (17), Florida Statutes, and Rule 59G- 9.070(7)(e), Florida Administrative Code, and costs of $54.15 for a total amount of $14,569.69. The Final Audit Report provided full disclosure and notice to the PROVIDER of procedures for requesting an administrative hearing to contest the alleged overpayment. The PROVIDER filed a petition with the Agency requesting a formal administrative hearing on or about September 5, 2013. The Agency forwarded PROVIDER'S hearing request to the Division of Administrative Hearings (Division) for a formal administrative hearing. The Division scheduled a formal hearing for November 22, 2013. On November 12, 2013, the PROVIDER filed a Motion with the Administrative Law Judge, requesting AHCA vs. Amwill Assisted Living, Inc. (AHCA C.I, No.: 13-1386-000) Final Order Page 1 of 4 Filed January 2, 2014 10:59 AM Division of Administrative Hearings withdrawal of their Petition for Formal Hearing, and the Administrative Law Judge issued an Order Closing File on November 12, 2013, relinquishing jurisdiction of the case to the Agency.
The Issue Whether the Respondent's certification under the Home and Community Based Services Medicaid Waiver Program should be suspended.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: The Department of Children and Family Services is the state agency responsible for administering what is known as the Home and Community Based Services Medicaid Waiver Program ("Waiver Program") for the developmentally disabled. Chapter 393, Florida Statutes. The Department is specifically charged with the responsibility for establishing by rule procedures for carrying out the mandates of Sections 393.001-.501. Section 393.501(1), Florida Statutes. William L. "Timothy" Robinson is certified by the Department as a behavior analyst, which means he is qualified to "design[] and implement[] . . . behavioral programs for persons who are developmentally disabled." Section 393.165. Only persons who are certified behavior analysts may be certified to provide services to clients in the Waiver Program. As part of its procedure for certifying behavior analysts to provide services under the Waiver Program, the Department requires that applicants execute a contract consisting of several parts. Part III of the contract is entitled Assurances, and, by his or her signature, the applicant agrees to comply with state and federal laws, rules, and policies. On July 19, 1995, Mr. Robinson applied in his individual capacity for certification to provide behavior analyst services to clients in the Waiver Program administered in the Department's District 11. He signed Part III of the application, and, at some point after July 19, 1995, Mr. Robinson was certified to provide services to clients in the Waiver Program. Subsequently, Mr. Robinson incorporated his business, and, on November 18, 1996, as Executive Director of Behavior Management Training Systems, Inc., he again executed Part III of the application, which contains the same provisions as the document Mr. Robinson signed as an individual on July 19, 1995. On November 17, 1996, as part of the application process, Mr. Robinson executed on behalf of Behavior Management Training Systems, Inc., a document entitled "Agency for Health Care Administration, Electronic Claims Submission Agreement." Paragraph 8 of this document states that "[p]rovider shall abide by all Federal and State statutes, rules, regulations and manuals governing the Florida Medicaid Program and those conditions as set out in the Medical Assistance Provider Agreement entered into previously." Mr. Robinson was retained by several support coordinators5 to provide behavior analyst services to clients in the Waiver Program. He submitted his monthly invoices and reports to the support coordinators, who forwarded them to Unisys, the Department's billing agent, for payment. During the fall of 1996, Kirk Ryon, the Medicaid Waiver Coordinator for District 11, received complaints from at least one support coordinator alleging that Mr. Robinson's documentation was not adequate to support his invoices for services.6 On December 17, 1996, Mr. Robinson met with Mr. Ryon and several other individuals employed by the Department to discuss the complaints that had been made regarding Mr. Robinson's billing practices and the behavior analyst services he provided to clients paid both through the Waiver Program and through general revenue.7 During this meeting, Mr. Robinson was asked to provide backup documentation to support his invoices for services. On December 17, after the meeting, Mr. Ryon wrote a letter to Mr. Robinson following up on the discussion at the meeting and requesting backup documentation for services provided to ten clients, four of whom received services under the Waiver Program. The remaining six clients received services from Mr. Robinson that were paid from general revenue. Although Mr. Robinson may not have received the December 17 letter,8 he wrote a letter that he dated January 14, 1996, 9 to Dr. Michael Wesolowski, an employee of the Department who attended the December 17 meeting. Mr. Robinson sent with the letter to Dr. Wesolowski monthly reports for June, July, August, and September 1996 for Felicia's House, one of the facilities at which he provided behavioral analyst services. Mr. Robinson acknowledged in the January 14 letter that he sent these documents in response to the Department's request for backup documentation for his billings and that the Department's request was made in response to complaints received by the Department and discussed at the December 17 meeting. Dr. Wesolowski did not provide Mr. Ryon with a copy of this letter or the attached documentation.10 Mr. Robinson provided no other documentation to the Department prior to February 5, 1997, when Mr. Ryon notified Mr. Robinson that his certification to provide services under District 11's Waiver Program was suspended. After he requested a formal hearing to contest the allegations in the February 5 letter, Mr. Robinson provided the Department during the course of discovery all of the documents in his possession relating to the services provided to the four clients in the Waiver Program. These documents, together with the documents provided by Mr. Robinson to Dr. Wesolowski in January 1997, were provided to Mr. Ryon by the Department's counsel two days before the formal hearing in this case commenced. Mr. Ryon reconciled the documents with the invoices Mr. Robinson had submitted and found that the documentation provided did not support many of the units11 of service for which Mr. Robinson had been paid.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the certification of William L. "Timothy" Robinson to provide services under the Home and Community Based Services Medicaid Waiver Program be suspended until February 5, 1998, one (1) year from the effective date of his suspension on February 5, 1997. DONE AND ENTERED this 22nd day of January, 1998, in Tallahassee, Leon County, Florida. PATRICIA HART MALONO Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of January, 1998.
The Issue Whether Petitioner's Medicaid provider number should be cancelled for the reason stated in Respondent's October 1, 1995, letter to Petitioner?
Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following Findings of Fact are made: Petitioner is a provider of community mental health services. It provides these services to residents of Palm Beach County and the surrounding areas. Some of the services it provides are unique to the area it serves. Petitioner provides services to Medicaid recipients pursuant to a Medicaid provider agreement dated September 6, 1994, paragraphs 8 and 9 of which provide as follows: 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 Depart- ment may terminate this agreement in accordance with Chapter 120, Florida Statutes. Petitioner has attempted to enter into a contract with the Department of Health and Rehabilitative Services' Alcohol, Drug Abuse and Mental Health office (hereinafter referred to as "ADM"), but to date has been unable to do so because ADM has not had the money to fund such a contract.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered terminating Petitioner's provider agreement and cancelling its provider number on the grounds that it "does not have a contract with the [Department of Health and Rehabilitative Services] ADM [Alcohol, Drug Abuse and Mental Health] office." DONE and ENTERED this 26th day of February, 1996, at Tallahassee, Leon County, Florida. STUART M. LERNER, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 SC 278-9675 Filed with the Clerk of the Division of Administrative Hearings this 26th day of February, 1996. COPIES FURNISHED: Darlene Silvernail, Esquire Forest Hill Counseling Center 2624 Forest Hill Boulevard West Palm Beach, Florida 33406 Gordon B. Scott, Esquire Agency for Health Care Administration 2727 Mahan Drive, Fort Knox Number 3 Tallahassee, Florida 32308-5403 Jerome W. Hoffman, General Counsel Agency for Health Care Administration 2727 Mahan Drive, Fort Knox Number 3 Tallahassee, Florida 32308-5403 Sam Power, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Fort Knox Number 3 Tallahassee, Florida 32308-5403
