The Issue The issue in this case is whether proposed rules 65G-4.0210 through 65G-4.027 (the “Proposed Rules”) are an invalid exercise of delegated legislative authority as defined in section 120.52(8), Florida Statutes. (Unless specifically stated otherwise herein, all references to Florida Statutes shall be to the 2012 codification.) Specifically, Petitioners assert that the Proposed Rules (1) enlarge, modify, and contravene the specific provisions of the law they purport to implement; (2) contain vague and inadequate standards that vest unbridled discretion in the Agency for Persons with Disabilities (the “Agency” or “APD”); (3) are arbitrary and capricious; and (4) exceed the grant of rulemaking authority in section 393.0662(9), Florida Statutes. Petitioners further argue that, (5) APD failed to follow applicable rulemaking procedures required by sections 120.54(3) and 120.541, Florida Statutes, because APD failed to provide a Statement of Estimated Regulatory Costs (“SERC”) as a part of the rulemaking process.
Findings Of Fact Each of the Petitioners is a recipient of services under the DD Waiver Program. For example, Petitioner Z.L. is a 26- year-old male who was born with Cri-du-Chat syndrome, a fifth chromosome abnormality. As a result, Z.L. is low-functioning, with a non-measurable IQ level (but likely well below the level designating mental retardation). Z.L. speaks only a few words and communicates with some sign language. He is ambulatory, but he is totally dependent on others for all activities of daily living. Z.L. also has some extreme behavioral issues, including self-abuse and physical abuse of others. He lives in a private residence with two other developmentally disabled men. The home where they reside belongs to the family of K.L. (Z.L.’s father and legal guardian). K.L. rents the home for Z.L. and the other two men at less than its actual market value. (The home is a 1,500 square foot home located on 15 acres. K.L. pays about $600 per month rent; the home could rent for two or three times that much.) Z.L. receives the following services under the DD Waiver Program: 24-hour assistance with activities of daily living; behavioral analysis through a certified behavior analyst; and personal care assistance. The cost of his care plan for the previous year was $61,824.22 (i.e., that was the amount paid by the DD Waiver Program). Z.L.’s father and mother are unable to care for Z.L. in their home. The father is CEO of a bank and is involved in other businesses as well. The mother recently suffered closed head injuries as a result of a bicycle accident. She must be cautious about any further head injuries and fears that Z.L.’s aggression could result in physical harm to her. As a result of the implementation of the iBudget process, APD is proposing to reduce Z.L.’s care plan by the sum of $8,175.98. Under the iBudget process, Z.L. has the right to challenge the reduction of his care plan amount in a Fair Hearing before a Department of Children and Families Hearing Officer, which he has done. K.L. has expended about $6,000 in legal fees to contest the reduction of Z.L.’s care plan amount under the new iBudget system. He expects that if the matter goes to appeal, he will expend as much as $70,000 more in legal fees. K.L. has also hired a lawyer for one of Z.L.’s roommates.1/ APD is the state agency responsible for distributing funds from the DD Waiver Program. Prior to implementation of the iBudget process, APD used a four-tier system to provide the level of funds each client would receive.2/ The tier system was more rigid in its application than the iBudget system. Under the tier system, there were strict funding policies in place. For example, if dollars were allocated toward a specific service, e.g., transportation, those dollars could not be used for any other service, such as companion care or personal care. As will be discussed more fully below, the funds provided in the iBudget process are more flexible regarding services they can purchase. The DD Waiver funds administered by the Agency are the funds of last resort. If a service received by a client can be paid for by another agency or source of payment, those must be utilized before the Agency can allocate funds for the service. Development of the iBudget System The 2010 Florida Legislature mandated creation of an iBudget process for distributing funds from the DD Waiver Program. Section 393.0662(1) states in pertinent part: The agency shall establish an individual budget, referred to as an iBudget, for each individual served by the home and community- based services Medicaid waiver program. The funds appropriated to the agency shall be allocated through the iBudget system to eligible, Medicaid-enrolled clients . . . . In developing each client’s iBudget, the agency shall use an allocation algorithm and methodology. The algorithm shall use variables that have been determined by the agency to have a statistically validated relationship to the client’s level of need for services provided through the home and community-based services Medicaid waiver program . . . . The allocation methodology shall provide the algorithm that determines the amount of funds allocated to a client’s iBudget. The agency may approve an increase in the amount of funds allocated, as determined by the algorithm, based on the client having one or more of the following needs that cannot be accommodated within the funding as determined by the algorithm and having no other resources, supports, or services available to meet the need: An extraordinary need that would place the health and safety of the client . . . in immediate, serious jeopardy . . . . A significant need for one-time or temporary support or services . . . . A significant increase in the need for services after the beginning of the service plan year . . . . The agency shall reserve portions of the appropriation for the home and community- based services Medicaid waiver program for adjustments required pursuant to this paragraph . . . . A client’s iBudget shall be the total of the amount determined by the algorithm and any additional funding provided pursuant to paragraph (b). A client’s annual expenditures for home and community-based services Medicaid waiver services may not exceed the limits of his or her iBudget. The total of all clients’ projected annual iBudget expenditures may not exceed the agency appropriation for waiver services. In response to the statutory mandate, the Agency sought input from “stakeholders,” i.e., individuals and families receiving services, family care counsel groups, various provider groups, and organizations such as the Association of Retarded Citizens and the like. APD also looked at how other states had addressed the issue of fund distribution to developmentally disabled individuals. The Agency hired consultants to help make the process as equitable and fair as possible within the limits of its finite budget. One of the Agency’s hired consultants was Dr. Xufeng Niu, chair of the statistics department at Florida State University. Dr. Niu is a recognized expert in the field of statistics and had used his expertise in many areas, including transportation issues such as railroad crossing safety and environmental issues for the Department of Environmental Protection. Dr. Niu has been an academician and consultant since obtaining his Ph.D. in statistics from the University of Chicago in 1991. Dr. Niu’s testimony was extremely credible. APD hired Dr. Niu to develop an algorithm which would be the key feature to any individual budget calculation. APD’s goal in developing the algorithm was to create a formula fitting data patterns of past expenditures, then to mathematically replicate decisions that were made to establish a client’s prior budget amount. Dr. Niu, by way of statistical modeling techniques, developed certain factors which could be utilized by the Agency in determining which clients would receive funds for specific services. Using a catalogue of predictors or variables derived from information provided to him by the Agency, Dr. Niu built a tool to predict what each client’s cost for needed services would be. A Bell Curve was used to keep the application of the variables more symmetrical. In order to effectuate this desire, Dr. Niu utilized a form of “transformation” referred to as the Box-Cox Transformation Family. The Box-Cox Method involved raising data to a different mathematical power as a means of analyzing and applying the data. Dr. Jim McClave, who operates a statistical consulting firm, is an expert statistician and econometrician. His work involves regular stints as an expert in legal proceedings such as this rule challenge matter. His testimony was credible, but less persuasive than that of Dr. Niu.3/ Dr. McClave would have used a log transformation method rather than the Box-Cox method relied upon by Dr. Niu. However, while not discounting the log transformation method, Dr. Niu competently testified that the Box-Cox worked best in this particular case. After the transformation process, it was necessary to narrow down the number of variables to be used. Dr. Niu ultimately decided to use nine specific variables, including: the client’s living setting; whether the client is an adult; the client’s score on the six elements set forth in the Questionnaire for Situational Information (“QSI”) which was provided to all potential recipients of services; the client’s score on the 11 elements in the functional summary section of the QSI; and the client’s score on each of three specific elements in the QSI related to transfers (ability to transfer or change position), hygiene, and capacity for self-protection. Not all variables are necessarily useful and having too many variables causes over- fitting, i.e., trying to fit every situation into a perfect model, which simply is not possible. In fact, it is better to have fewer variables as long as sufficient data can be captured. A statistician must reach a balance on the number of variables in order to find the best model for each project. Dr. Niu’s affirmation of the variables he used is credible. Dr. Niu utilized the Generalized Information Criterion (“GIC”), a method of finding the best set of predictors when creating an algorithm. GIC is a criterion that tries to balance the model by carefully adding more variables without overpopulating the model with too many variables. GIC was used by Dr. Niu in conjunction with the concept of R-squared. That concept is a statistical measure of how well an algorithm fits the data in order to test how well the model predicts. The algorithm developed for use in the Proposed Rules has an R- squared value of .6757, meaning that it accounts for about 68 percent of the variation in the population of APD clients’ DD Waiver expenditures. By contrast to the GIC and R-squared approach, there is in the field of statistics a tool referred to as Residual Standard Error. This tool helps determine whether a model is predicting within two standard deviations and thus has a measure of certainty. The algorithm proposed by APD did not utilize the Residual Standard Error tool, relying instead on the combination of GIC and R-squared. Based upon Dr. Niu’s testimony, APD’s reliance on those tools is reasonable. Dr. Niu developed a number of models for possible use in the iBudget process, settling at last on Model 7b. The model was then applied to the pool of clients who would be affected by the new iBudget system. The client pool contained a large number of different situations and scenarios, as each client and client family is unique despite some similar developmental issues. As a result of these differences, there were cases in which a particular client -- because of his or her needs, or those of his or her family -- did not fit the model. These cases were called “outliers” and had to be treated differently by the Agency. Of the total group of some 26,000 clients, 9.37 percent, or about 2,400 clients, were deemed outliers. Dr. McClave criticized this percentage of outliers, but Dr. Niu's substantiation of the percentage is credible. Dr. Niu utilized actual expenditures by APD for DD Waiver Program clients during the 2007-2008 fiscal year as an indicator of what APD had faced in the past. Those data were recent enough in time to be linked to current assessment data for the clients and to be assigned scores from the QSI. APD also found that the 2007-2008 data more accurately reflected service needs compared to other recent years because the data pre-dated the implementation of the more restrictive Tier system. Dr. Niu did not use clients with less than one year of claims because they may not project the client’s actual annual expenditures. Dental services, environmental services, and durable medical equipment purchases were excluded because they are generally a once-a-year purchase. Four of Florida's 67 counties were excluded from the calculations because they had a much higher cost of living than the rest of the state. Mismatches and clerical errors in clients’ records were also taken into consideration. Age was used as a predictor, but after trial and error Dr. Niu decided upon a single division, i.e., persons under 21 years of age versus persons 21 or older. The rationale was that people under 21 receive services from other sources, like the public school system, for example. Persons over 21 begin to require more services as they age. Dr. Niu considered more factors than just the mathematical statistical accuracy. His extensive work resulted in the best model out of many possibilities. Transportation needs and costs were considered during the stakeholder meetings as a factor to be considered when discussing possible variables. Dr. Niu attempted to use a transportation index in his models, but that resulted in a negative coefficient which is less valid statistically. Applying the current year’s transportation costs did not work. It was also impossible to apply a portion of a year’s transportation costs as an indicator of the entire year’s transportation costs. And, because transportation costs constitute only about 1.5 percent of overall expenses, it was reasonably determined that such costs could be handled by way of an extra needs review. Upon completion of the iBudget system, it was implemented and introduced to all eligible DD Waiver clients. The program was introduced in “waves,” i.e., not all DD waiver clients being served by APD received their iBudgets at one time. Rather, the new system was phased in over time. How the iBudget System Is Employed APD sends an information packet to each client, i.e., each person seeking services to be paid for under the DD Waiver Program. This information packet, called a Welcome Guide, is meant to help the client understand the new system. The Welcome Guide provides a large amount of information, plus education and training possibilities as well. It is understandably difficult to absorb all of the information contained in the packet, but APD opted for completeness rather than over-simplifying the information. Z.L.’s father, who is a licensed attorney and CEO of a bank, expressed difficulty understanding the information contained in the Welcome Guide. However, he testified that he has "some kind of memory block" about DD Waiver services. It is understandable that this would be a difficult thing for a parent to review. The first step of the process for requesting funds for services under the iBudget system is to have the client complete a QSI form. After the QSI assessment is done, the second step of the process is for the Agency to run its algorithm using the previously discussed variables such as age, living arrangement, behavioral status, functional status, and the responses to various personal questions concerning the client. Running the algorithm then creates a dollar value for the services deemed appropriate for the client. The cost of the services is then related back to the appropriation of funds received by APD from the Legislature for providing all needed services. Each client’s sum for needed services is then given a pro rata reduction (or, theoretically, an increase) based on the total funds available to APD. There are then adjustments which can be made to the algorithm amount. For example, if the algorithm amount for a client was greater than the amount set forth in the client’s existing care plan, that client’s “algorithm amount” was reduced to the existing care plan amount, at least temporarily pending further possible actions under the iBudget process. There are specific services identified in the Proposed Rule (at 65G-4.0212(b)(2)), which are indicative of certain health and safety needs. If a client needs any of those services and the cost of those services is greater than the algorithm amount, the greater sum will be substituted. If the algorithm amount was less than the client’s care plan amount but within $1,000 of the existing care plan amount, then the care plan amount was used as the “algorithm amount.” This $1,000 buffer will necessarily mean that a client whose care plan amount is $999 more than the algorithm amount may be treated differently from a person whose care plan amount is $1,001 more than the algorithm amount. Still, the decision to employ a $1,000 threshold is generally reasonable as APD attempts to maintain a sufficient care plan allocation despite the change in systems. APD reasonably believes it would be more time-consuming and costly to deal with changes of $1,000 or less than to simply accept the prior care plan amount (which was based upon the client's needs). If the algorithm amount is less than the amount in the client’s existing care plan, then APD determines whether the reduction is greater than 50 percent of the existing care plan amount. If so, the algorithm amount is raised to an amount equal to at least 50 percent of the existing care plan amount. After application of the above-reference factors and -- if warranted -- adjustments are made, the client is provided an amount which is referred to as the “Target Allocation.” The fourth step in the process is for APD to provide the Target Allocation amount to the client and WSC. Step five of the process is a review to determine whether, notwithstanding the algorithm amount, a client has extra needs that warrant an increase in their ultimate allocation of funds for services. This is called the Extraordinary Needs Review. The first phase of this step is an allocation implementation meeting (AIM), wherein the client is advised about the changes --if any -- to his/her care plan. The client and his or her waiver support coordinator (WSC) are given information about how the reductions may be handled, e.g., that under the iBudget it might be possible to utilize funds to pay for one service even if they are allocated for another service. Or, there may be ways under the iBudget system to merge two or more services into one. One example of that is that in-home personal service caregivers may be allowed to perform other tasks, e.g., they may be able to provide services outside the home setting. After almost a full year of implementing the iBudget system, this portability of funds from one service to another has proven to be one of the most appreciated functions of the new process by waiver support coordinators. If the client and WSC agree that the service needs can be met by the Target Allocation, that amount becomes the client’s iBudget Allocation amount. If the client and WSC do not think the Target Allocation amount is sufficient to meet the service needs, the AIM form is completed and sent to APD for further review. If the health and safety of the client, client’s caregiver, or the public is placed in immediate jeopardy without an increase in the allocation, then an increase will be approved. APD then gives the client notice as to its decision and the final iBudget Allocation is provided. This constitutes step six of the process. Subsequent to setting and providing notice of the final iBudget Allocation, a client may seek supplemental funding for significant one-time or temporary needs. If a significant increase in need for services arises after the beginning of a plan year, a process exists for further consideration of the client’s needs. For new clients, i.e., those who do not have an existing care plan when the iBudget is applied to them, the process is slightly different. First there is an eligibility determination (which has already occurred for existing clients). The client then responds to the QSI. The algorithm is calculated to form the target allocation for the new client. An extra needs review is then performed to make sure that all health and safety needs are being met. It is possible that a new client with exactly the same condition, circumstances, and needs as an existing client (albeit an extremely unlikely occurrence), could receive a larger amount under the iBudget than the existing client. If both clients were assigned exactly the same score under the algorithm, but the existing client’s allocation amount were larger than the care plan amount under the Tier system, then the existing client’s allocation would be reduced. There would not be a concomitant reduction of the new client’s allocation. Although Petitioners pointed out this alleged flaw, no remedy was suggested that would make it possible for APD to make the treatment of two similarly situated clients more equal. The iBudget system is not flawless, but it is an admirable effort toward equality of application to all “clients.” The Agency did not set aside or reserve any portion of their allocation from the Legislature as a Reserve Fund, per se. Rather, APD uses the reserve fund concept as a management tool to be used when making adjustments to an individual client’s final allocation of funds. Thus, during the AIM process or the Supplemental Cost Funding phase, APD might raise a client’s allocation based on funds it has “reserved” under the algorithm calculation. Statement of Estimated Regulatory Costs APD published the initial proposed rule on August 3, 2012. The publication included a statement that the Agency had determined there would not be an adverse impact on small business nor would it increase regulatory costs in excess of $200,000 within one year. Petitioners’ contention that clients may have difficulty understanding the welcome packet information and may challenge iBudget Allocations by way of fair hearings does not establish the necessity for SERC.
Conclusions Having reviewed the administrative complaint dated August 17, 2009, attached hereto and incorporated herein (Exhibit 1), and all other matters of record, the Agency for Health Care Administration ("Agency") has entered into a Settlement Agreement (Exhibit 2) with the other party to these proceedings, and being otherwise well-advised in the premises, finds and concludes as follows: ORDERED: The attached Settlement Agreement is approved and adopted as part of this Final Order, and the parties are directed to comply with the terms of the Settlement Agreement. Filed February 12, 2010 12:46 PM Division of Administrative Hearings. Upon full execution of this Agreement, the parties agree to the following: The administrative complaint is deemed superseded by this Settlement Agreement. The Petitioner's request for a formal administrative hearing is withdrawn. Respondent will pay a fine of $500.00 for violating Rule 59A-8.003(10)(c), Florida Administrative Code. This fine is due and payable within thirty (30) days of the entry of the Final Order. A check should be made payable to the "Agency for Health Care Administration." The check, along with a reference to this case number, should be sent directly to: Agency for Health Care Administration Office of Finance and Accounting Revenue Management Unit 2727 Mahan Drive, MS # 14 Tallahassee, Florida 32308 Unpaid amounts pursuant to this Order will be subject to statutory interest and may be collected by all methods legally available. Respondent's petition for a formal administrative proceeding is hereby dismissed. Each party shall bear its own costs and attorney's fees. The above-styled case is hereby closed. DONE and ORDERED this _!}_day of , 2010, in Tallahassee, Leon County, Florida. I Ith Care Administratio A PARTY WHO IS ADVERSELY AFFECTED BY THIS FINAL ORDER IS ENTITLED TO JUDICIAL REVIEW WHICH SHALL BE INSTITUTED BY FILING ONE COPY OF A NOTICE OF APPEAL WITH THE AGENCY CLERK OF AHCA, AND A SECOND COPY, ALONG WITH FILING FEE AS PRESCRIBED BY LAW, WITH THE DISTRICT COURT OF APPEAL IN THE APPELLATE DISTRICT WHERE THE AGENCY MAINTAINS ITS HEADQUARTERS OR WHERE A PARTY RESIDES. REVIEW OF PROCEEDINGS SHALL BE CONDUCTED IN ACCORDANCE WITH THE FLORIDA APPELLATE RULES. THE NOTICE OF APPEAL MUST BE FILED WITHIN 30 DAYS OF RENDITION OF THE ORDER TO BE REVIEWED. Copies furnished to: Lawrence R. Metsch, Esq. The Metsch Law Firm, P.A. 20801 Biscayne Blvd. Suite 307 Aventura, Florida 33180 (U. S. Mail) Lourdes A. Naranjo, Esq. Assistant General Counsel Agency for Health Care Administration 8350 N. W. 52 Terrace - Suite 103 Miami, Florida 33166 (Interoffice Mail) Finance & Accounting Patricia M. Hart Agency for Health Care Administrative Law Judge Administration Division of Administrative Hearing 2727 Mahan Drive, MS # 14 1230 Apalachee Parkway Tallahassee, Florida 32308 Tallahassee, Florida 32399 (Interoffice Mail) Jan Mills Agency for Health Care Administration 2727 Mahan Drive, Bldg #3, MS #3 Tallahassee, Florida 32308 (Interoffice Mail) CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of this Final Order was served on the above-named person(s) and entities by U.S. Mail, or the method designated, on this the ay of rCLa.r Y" , 2010. 7 Richard J. Shoop Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Building #3 Tallahassee, Florida 32308 (850) 922-5873
The Issue The issue is whether Respondent properly denied Petitioner's request for immediate developmental disability services, placing him instead on a waiting list for those services due to the unavailability of funds.
Findings Of Fact There are three primary funding sources for persons with developmental disabilities: Individual and Family Supports (IFS program); Home and Community Based Waiver for Persons with Developmental Disabilities (HCBW or Medicaid Waiver program); and Intermediate Care Facility for Developmentally Disabled Clients (ICF/DD program). The IFS program is funded from the state's general revenue. Based upon available funds, this program can pay for summer camps and other services that are not available under the other two programs. The HCBW program provides a variety of services to individuals with developmental disabilities under Section 19.15 (c) of the Social Security Act. It is a federal matching dollar program with approximately 50 percent of the funds furnished by the state and 50 percent of the funds furnished by the federal Medicaid program. Unlike the IFS and ICF/DD programs, the HCBW program can pay for residential habilitation in a home or community setting. The ICF/DD program serves clients in an institutional setting under a Medicaid entitlement program. Unlike the IFS and HCBW programs, which are not entitlement programs, the funds for the ICF/DD program are not limited and do not have to be prioritized. The federal government's Health Care Finance Administration (HCFA) has to approve the state's HCBW program. HCFA's approval serves as a waiver of certain federal Medicaid requirements. The waiver allows the state to serve individuals in community-based settings instead of institutions. The approval process includes identification of the number of individuals to be served, as well as defining the services to be provided and setting forth provider qualifications. In 1998, HCFA approved Respondent's five-year plan for an HCBW program. Under the plan as amended each fiscal year, Respondent makes a commitment to serve the lesser of a target number of individuals or the number of persons authorized by the state legislature. The target number of persons was 15,302, 22,433, and 25,945 for the 1998-1999, 1999-2000, and 2000-2001 fiscal years, respectively. Any difference between the target number of individuals to be served and the actual number of individuals served is based on the funds appropriated by the state legislature. Historically, the state has not been able to serve all individuals identified as developmentally disabled. The persons who are not served are placed on a statewide waiting list. Traditionally, individuals are removed from the waiting list and begin receiving services as funds become available. Prior to the 1999 legislative session and after federal litigation, Respondent identified the number of developmentally disabled individuals who were under-served or receiving no services. Respondent made this effort in anticipation of receiving additional funding to begin eliminating the existing waiting list. At that time, Respondent identified 23,361 persons who were on the waiting list. In 1999, Respondent developed and submitted to the Legislature a two-year spending plan. The purpose of the plan was to eliminate the existing waiting list by addressing the needs of the 23,361 people over a two-year period. Respondent based the plan on data then available and the existing case load. The plan assumed that Respondent would prioritize populations and provide services in an organized manner. The two-year spending plan called for new funding in the amount of $98,167,008 for the 1999-2000 fiscal year. The plan provided for the delivery of additional services to 15,984 people in the first year (July 1, 1999 through June 30, 2000), with the remaining 7,377 people receiving services in the second year (July 1, 2000 through June 30, 2001). The two-year spending plan estimated that additional funding in the amount of $118,215,693 would be required for the 2000-2001 fiscal year to serve the 23,361 people on the waiting list. The two-year spending plan contained the following priorities: Identify those persons in crisis, both in need of residential or community-based care, and serve them in the first six months. [This goal assumed that Respondent would serve 1,590 persons identified as in crisis in the first six months of the 1999-2000 fiscal year.] Identify those persons who are eligible for ICF/DD [Intermediate Care Facilities/Developmental Disabled] (LON [Levels of Need] 3, 4, & 5) and are in need of additional services and provide services (DOE vs. Bush). [This goal assumed that Respondent would continue to serve 1,298 persons already participating in the Medicaid waiver program and begin serving 5,237 additional persons in that program by the end of the 1999-2000 fiscal year.] Provide home and community-based services to persons who wish to move from the private institutions to the community (Cramer vs. Bush). [This goal assumed that certain numbers of people would elect to move from a private ICF/DD or a nursing home to the community program in the 1999-2000 and 2000-2001 fiscal years.] Determine the unmet needs of persons living in residential care, or needing residential care (not crisis) and who are ICF/DD eligible and provide services. [This goal assumed that Respondent would provide enhanced residential care to some persons and new residential care for others.] Determine the unmet need of persons not eligible for ICF/DD (LON 1&2) and begin meeting their needs. [This goal assumed that Respondent would meet the needs of all people then on the Medicaid waiver program in the first year. It also assumed that Respondent would provide services to 25 percent of the population who were not on the Medicaid program in the 1999-2000 fiscal year with the remainder receiving services in the 2000-2001 fiscal year.] In the 1999 legislative season, the Legislature renewed funding for services provided to the existing clients of the HCBW, ICF/DD, and IFS programs. The Legislature also provided additional funding for developmentally disabled persons in the amount of $98,167,008, to meet the priorities, in order, as follows: (a) transitions for those requesting transfers from ICF/DD institutional placements into HCBW residential placements; and (b) meeting the needs of identified under-served participants in the HCBW program. The 1999 Legislature did not provide any additional funding for the IFS program that would allow Respondent to increase the number of persons served in the IFS program without decreasing services provided to existing clients. In a memorandum dated June 22, 1999, Respondent advised its district administrators that the 1999-2000 spending plan was approved. The memorandum described certain tasks that had to be completed, together with relevant time frames, before Respondent could spend the appropriated funds. These tasks included the following: (a) Serve persons in crisis; (b) Serve persons wishing to move from ICF/DD to community placements; (c) Serve persons on the waiver with unmet needs or who are under-served; (d) Serve persons eligible for ICF/DD or HCBS waiver with unmet needs; and (e) Serve persons with limited and minimal levels of need who are not enrolled in the waiver (not enrolled in HCBW and not eligible for ICF/DD or waiver.) The two-year spending plan developed by Respondent in 1999 did not take into consideration the needs of developmentally disabled persons who were not in crisis and who applied for and became entitled to services after July 1, 1999. Therefore, as non-crisis applicants qualified for services after July 1, 1999, Respondent placed their names on a second waiting list. The new waiting list grew at an unprecedented rate due to the redesigned system and the influx of additional funds. During the 2000 legislative session, Respondent requested and the Legislature appropriated sufficient funds to continue the services provided to persons in the 1999 General Appropriations Act and for an additional 7,377 persons to be served in the 2000-2001 fiscal year. Once again the new funds were earmarked as follows: (a) for clients requesting transfers from a ICF/DD program to a HCBW program; and (b) for under- served clients in the HCBW program. The Legislature earmarked all of the new funding for the HCBW program. The Conference Report on House Bill 2145, General Appropriation Act FY 2000- 2001, Section 3, Specific Appropriation No. 344, specifically stated: The Medicaid waiver services mix must be fully met for all eligible participants before funds are transferred to non-Medicaid covered services, with the exception of room and board payments. In accordance with the Legislature's appropriations and proviso language for the 1999-2000 and 2000-2001 fiscal years, Respondent implemented a policy to eliminate the existing waiting list for persons seeking developmental disability services. Respondent properly determined that persons with unmet needs, who were on the waiting list as of July 1, 1999, would be served before any one who applied for services after that date. According to Respondent's policy, the only exceptions would be individuals who were determined to be in crisis. Respondent's proposed budget for the 2001-2002 fiscal year calls for additional funding for clients who applied for services after July 1, 1999. Respondent projects that 6,774 additional persons would become clients or be waiting for services by the end of the 2001-2002 fiscal year--a net increase in the caseload of 2,258 people annually. Until funding becomes available, these additional people will remain on a waiting list. Under the spending plan in effect at the time of the hearing, some individuals who were on the wait list as of July 1, 1999, still are not receiving services for which they are eligible. These persons are in the process of obtaining services and must be served before persons who became or will become eligible after July 1, 1999. Petitioner became eligible for developmental services in November 1999. He does not presently qualify for services funded by the Legislature in fiscal year 2000-2001 for three reasons: (a) he became eligible after July 1, 1999; (b) he applied for IFS services, a funding category for which the Legislature did not appropriate any new funds for new clients; and (c) he is not in crisis. Additionally, Petitioner is currently having his residential training needs met through the Conklin Center, Division of Blind Services.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Respondent enter a final order affirming its decision that Petitioner remain on the list of clients waiting to receive developmental disability services. DONE AND ENTERED this 2nd day of February, 2001, in Tallahassee, Leon County, Florida. SUZANNE F. HOOD 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 2nd day of February, 2001. COPIES FURNISHED: Michael Raymond 5268 Isabelle Avenue Port Orange, Florida 32127 Cathy McAllister, Esquire Department of Children and Family Services 210 North Palmetto Avenue, Suite 412 Daytona Beach, Florida 32114 Virginia A. Daire, Agency Clerk Department of Children and Family Services Building 2, Room 204B 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Josie Tomayo, General Counsel Department of Children and Family Services 1317 Winewood Boulevard Building 2, Room 204 Tallahassee, Florida 32399-0700
The Issue The issue in this case is whether the Agency for Health Care Administration (AHCA) should enroll the Petitioner, Oscar Sansoni, as a Medicaid provider of support coordination services.
Findings Of Fact In 1990, the former Department of Health and Rehabilitative Services (HRS) preliminarily confirmed a report of abuse or neglect against the Petitioner, Oscar Sansoni (report No. 90-045389). The Petitioner asked that the report be expunged and asked for formal administrative proceedings when HRS denied his request (DOAH Case 90-4332C). Upon commencement of the hearing in DOAH Case 90-4332C, the Petitioner withdrew his request for expunction "upon condition that such withdrawal would not prejudice his right to request, at a later date, further proceeding on the issue of an exemption from disqualification for employment." A Recommended Order of Dismissal was entered in the case on October 26, 1990, on the basis of the Petitioner's withdrawal of his expunction request. On August 6, 1991, a Final Order was entered on the basis of the Recommended Order of Dismissal; it denied the expunction request and confirmed the report. The Petitioner was initially certified by HRS to provide support coordination services under Florida's Medicaid waiver program in November 1993. He provided those services in District 6 and in District 14, but not without some problems in both districts. The first survey of the Petitioner conducted in District 14 on September 21, 1994, revealed five major areas of concern: support plans did not authorize services; (2) cost plans (plans of care) did not authorize purchase of services; (3) case notes did not substantiate billing; (4) case notes were not in sufficient detail; and (5) planning prior to changing client support was inadequate. As a result, District 14 withdrew the Petitioner's ability to process billings for 90 days. The first survey of the Petitioner conducted in District 6 on October 21, 1994, revealed most of the same concerns as in District 14. (The exception was that the Petitioner was not criticized for inadequate planning.) To the Petitioner's credit, he improved following the initial surveys. A follow-up survey conducted in District 14 on January 24, 1995, revealed that the Petitioner was in full compliance. A follow-up survey in District 6 also revealed progress, but the Petitioner was not considered to be providing better than adequate services there. On December 29, 1994, the Petitioner signed a verification that he had obtained or would soon be obtaining a background screening, as required of all HRS Developmental Services Medicaid waiver support coordinators. During a routine review on or about May 24, 1995, HRS discovered that the Petitioner had not yet obtained or even applied for a background screening. HRS conducted a background screening of the Petitioner which revealed the confirmed report of abuse or neglect, report No. 90-045389. As a result, HRS took action to revoke the Petitioner's Medicaid waiver certification. The outcome of the revocation proceeding is not clear from the record, but it appears from the evidence that the Petitioner was required to relinquish 34 District 6 case files for handling by other support coordinators. Review of those files revealed that 15 of the 34 had no support plans or overdue support plans. Most of the case files had no case notes. The Petitioner asked for an extension of time until June 5, 1995, to submit missing case notes and support plans. On June 9, 1995, he submitted some but not all of the missing case notes and support plans. More missing case notes and support plans were submitted on July 27, 1995, along with billings for support services. Still more missing case notes and support plans with additional billings for support services were submitted on January 12, 1996. The Petitioner let it be known that he was spacing the submission of these documents to optimally serve his cash-flow needs. District 6 reviewed the Petitioner's case notes and support plans after January 12, 1996, and found them to be extremely unprofessional, contrary to state statute and rule relative to confidentiality, and lacking in substance relative to the implementation of goals on the support plan. Many support plans were late. The Petitioner failed to comply with many of the assurances required of Medicaid waiver support coordinators. At a later date, the Petitioner applied for Medicaid waiver certification on behalf of Dare to Dream, Inc. HRS denied the application, and the Petitioner requested formal administrative proceedings. The case was referred to DOAH, where it was given Case No. 96-3199. Case No. 96-3199 was set for final hearing on September 20, 1996, but HRS filed a Motion for Suggestion of Mootness on September 17, 1996. In the motion, HRS conceded that the Petitioner met all of the certification criteria set out in Florida Administrative Code Rule 59G-8.200(12)(b)20 and that there was no valid, legal ground for denying certification. It gave assurance that HRS would issue the Medicaid waiver certification letter "within the next week." The Petitioner initially opposed the motion "out of frustration" but withdrew his opposition at a telephone hearing held on the motion on September 18, 1996, and an Order Dismissing Proceeding, Relinquishing Jurisdiction, and Closing File was entered on September 19, 1996, returning jurisdiction to HRS for issuance of the Medicaid waiver certification. HRS issued a one- year Medicaid waiver certification to Dare to Dream, Inc., on September 18, 1996. The letter transmitting the one-year certification to Petitioner explained that, effective January 1, 1995, all providers of Developmental Services/Home and Community Based Services of Support Coordination were required to have a Medicaid provider number. HRS agreed to forward the Petitioner's completed application for a provider number to the Agency for Health Care Administration (AHCA). When HRS forwarded the Petitioner's application for enrollment as a Medicaid provider, HRS included its evaluation of the Petitioner's previous performance and a strong recommendation that the application be denied. AHCA received the Petitioner's application on October 31, 1996. On January 9, 1997, AHCA advised the Petitioner that it intended to deny the application: (1) because, contrary to representations in the application, the Petitioner's Medicaid waiver certification had been revoked, not suspended, by HRS in May 1995; (2) because the Medicaid waiver certification had not been restored; (3) because the Petitioner had on his record a confirmed report of abuse or neglect; and (4) because, for the foregoing reasons, as well as the Petitioner's performance history as a provider of support coordination services for HRS, AHCA concurred with HRS' recommendation that the application be denied. The Petitioner, in his rebuttal, explained: (1) that he understood his Medicaid waiver certification to have been suspended, not revoked; and (2) that, besides, it was restored by the time of his application. He also had admitted in evidence documentation relating to DOAH Case Nos. 90-4332C and 96-3199 (which provide some of the support for Findings 1 and 10-13, supra.) However, the Petitioner put on no evidence contrary to the other grounds for HRS' recommendation that the application be denied.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency for Health Care Administration enter a final order denying the Petitioner's application for enrollment as a Medicaid provider. RECOMMENDED this 15th day of January, 1998, at Tallahassee, Leon County, Florida. J. LAWRENCE JOHNSTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 15th day of January, 1998. COPIES FURNISHED: Jack B. Pugh, Esquire Suite 1080 1645 Palm Beach Lakes Boulevard West Palm Beach, Florida 33401 Gordon Scott, Esquire Agency for Health Care Administration Building 3, Suite 3431 2727 Mahan Drive Tallahassee, Florida 32308 Sam Power, Agency Clerk Agency for Health Care Administration Fort Knox Building 3, Suite 3431 2727 Mahan Drive Tallahassee, Florida 32308 Jerome W. Hoffman, General Counsel Agency for Health Care Administration 2727 Mahan Drive Tallahassee, Florida 32308
The Issue The issues in the case are whether Lynk Services, Inc. (Respondent), violated applicable provisions of the Florida Administrative Code, and, if so, what penalty should be imposed.
Findings Of Fact The Florida Medicaid Developmental Disabilities Waiver Program (Waiver) provides approved health and personal services to qualified recipients. The Agency for Persons with Disabilities (APD) administers the Waiver and conducts audits of participating health care providers. The time period relevant to this case (the "audit period") was April 1, 2006, through June 30, 2006. At all times material to this case, the Respondent was the Waiver Support Coordinator (WSC) for Waiver recipient R.M. At all times material to this case, Premier Health Care (Premier) was the personal care assistance provider assigned by the Respondent to R.M. On March 31, 2006, the Respondent filed with APD, an authorization for personal care services to be provided to R.M. by Premier for the one-year period commencing on April 1, 2006. Premier filed claims for the provision of personal care service to R.M. during at least part of the audit period. The Florida Medicaid program paid the claims. Premier did not provide personal care assistance to R.M. during the audit period. The only service provided to R.M. during the audit period by a Premier employee was supervision of oxygen usage, which is not a personal care service. The Respondent did not file any request to amend the service authorization to reflect the services actually provided by Premier to R.M. An overpayment of $2,006.00 occurred, based on payment by APD for personal care services that were not provided to R.M.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency for Health Care Administration enter a final order stating that the Respondent violated applicable requirements as set forth herein and assessing a fine of $1,000 and requiring the submission of an acceptable corrective action plan. DONE AND ENTERED this 6th day of April, 2010, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 6th day of April, 2010. COPIES FURNISHED: Lynne Ballou, CEO, WSC Lynk Services, Inc. 2189 Cleveland Street, Suite 207 Clearwater, Florida 33765 Andrew T. Sheeran, Esquire Agency for Health Care Administration Fort Knox Building, Mail Stop 3 2727 Mahan Drive, Suite 3431 Tallahassee, Florida 32308 Richard J. Shoop, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Mail Station 3 Tallahassee, Florida 32308 Justin Senior, General Counsel Agency for Health Care Administration Fort Knox Building, Suite 3431 2727 Mahan Drive, Mail Station 3 Tallahassee, Florida 32308 Thomas W. Arnold, Secretary Agency for Health Care Administration Fort Knox Building, Suite 3116 2727 Mahan Drive Tallahassee, Florida 32308
Conclusions THE PARTIES resolved all disputed issues and executed a settlement agreement. which is attached and incorporated by reference. The parties are directed to comply with the terms of the attached settlement agreement. Based on the foregoing. this file is hereby CLOSED. DONE AND ORDERED on this AS day of fick . 2014, in Tallahassee, Florida. lh. fall lizabeth Dudek, Gecretary, Agency for Health Care Administration Agency for Health Care Administration v. 2065, Inc, d/b/a Fort Lauderdale Retirement Home Final Order Page 1 of 3 Filed March 27, 2014 4:49 PM Division of Administrative Hearings A PARTY WHO IS ADVERSELY AFFECTED BY THIS FINAL ORDER IS ENTITLED TO A JUDICIAL REVIEW WHICH SHALL BE INSTITUTED BY FILING ONE COPY OF A NOTICE OF APPEAL WITH THE AGENCY CLERK OF AHCA, AND A SECOND COPY ALONG WITH FILING FEE AS PRESCRIBED BY LAW, WITH THE DISTRICT COURT OF APPEAL IN THE APPELLATE DISTRICT WHERE THE AGENCY MAINTAINS ITS HEADQUARTERS OR WHERE A PARTY RESIDES, REVIEW PROCEEDINGS SHALL BE CONDUCTED IN ACCORDANCE WITH THE FLORIDA APPELLATE RULES. THE NOTICE OF APPEAL MUST BE FILED WITHIN 30 DAYS OF RENDITION OF THE ORDER TO BE REVIEWED. Copies furnished to: Jason Klein, Esq. Bales Sommers & Klein, P.A. 2 South Biscayne Blvd. Suite 1881 Miami, Florida 33131 Telephone: (305) 372-1200 Facsimile: (305) 372-9008 Email: jklein@bsklawyers.com (Via Electronic Mail) Tracie L. Hardin, Esquire Agency for Health Care Administration 2727 Mahan Drive Building 3, Mail Station 3 Tallahassee, Florida 32308 (Via Electronic Mail) Agency for Health Care Administration Bureau of Financial Services 2727 Mahan Drive Building 2. Mail Station 14 Tallahassee, Florida 32308 (Via Electronic Mail) Richard Zenuch, Chief Medicaid Program Integrity 2727 Mahan Drive Building 2, Mail Station 6 Tallahassee, Florida 32308 (Via Electronic Mail) Division of Administrative Hearings The Desoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (Via Electronic Mail) Bureau of Health Quality Assurance 2727 Mahan Drive, Mail Stop 9 Tallahassee, Florida 32308 (Via Electronic Mail) Agency for Health Care Administration v. 2065, Inc. d/b/a Fort Lauderdale Retirement Home CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished to the above named addressees by Electronic Mail, or the method designated, on this the ao day of Lec 2014, Agency Clerk State of Florida Agency for Health Care Administration 2727 Mahan Drive, Building #3 Tallahassee, Florida 32308-5403 (850) 412-3630 Agency for Health Care Administration v. 2065, Inc. d/b/a Fort Lauderdale Retirement Home Final Order Page 3 of 3 STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS STATE OF FLORIDA, AGENCY FOR HEALTH CARE ADMINISTRATION, Petitioner, DOAH Case No.: 12-1252MPI ys. Provider No.: 140290100 C.L. No.: 12-1546-000 2065, INC. d/b/a FORT LAUDERDALE RETIREMENT HOME, Respondent. f SETTLEMENT AGREEMENT Petitioner, the STATE OF FLORIDA, AGENCY FOR HEALTH CARE ADMINISTRATION, (“AHCA” or “Agency”), and Respondent, 2065, INC. d/b/a FT. LAUDERDALE RETIREMENT HOME, (“PROVIDER”), by and through the undersigned, hereby stipulate and agree as follows: 1. The parties enter into this agreement for the purpose of memorializing the resolution to this matter. 2. PROVIDER is a Medicaid provider in the State of Florida, provider number — 140290100, and was a provider during the audit period. 3. In its Sanction Letter, dated Febmary 6, 2012, the Agency notified PROVIDER that it was being assessed fines in the amount of thirteen thousand dollars ($13,000.00), pursuant to Florida Administrative Cade Rule 59G-9.070(7)(e), for violations of Medicaid policies. 4. In response to the Sanction Letter, PROVIDER filed a Request for Formal Administrative Hearing. AHA v. 2065, Inc. d/p a Ft. Lauderdaie Retirement Home - Settlement Agreement CL No.: 12-1546-000; Case No.: 12-1252MPI Page 1 of 5 5. In order to resolve this matter without further administrative proceedings, PROVIDER and AHCA expressly agree as follows: 7. (1) (2) (3) 4) AHCA agrees to accept the payment set forth herein in settlement of the sanctions assessed by the Bureau of Medicaid Program Integrity. Within thirty (30) days of the date of execution of a Final Order adopting this Settlement Agreement, PROVIDER agrees to make a payment of the following: a fine in the amount of three thousand dollars ($3,000.00). PROVIDER and AHCA agree that such payments as set forth above will resolve and settle this case completely and release both parties from all liabilities arising from the findings in the audit referenced as C.I. Number 12-1546-000. PROVIDER agrees that it is required to comply with all requirements of the applicable Medicaid Handbooks, to include properly recording and maintaining service plans, health assessments, and medical observation records. Payment shall be made to: AGENCY FOR HEALTH CARE ADMINISTRATION Medicaid Accounts Receivable 2727 Mahan Drive MLS. #14 Tallahassee, Florida 32317-3749 PROVIDER agrees that failure to pay any monies due and owing under the terms of this Agreement shall constitute PROVIDER’S authorization for the Agency, without further notice, to withhold the total remaining amount due under the terms of this agreement from any monies due and owing to PROVIDER for any Medicaid claims. AHCA v. 2065, Inc. d/b aFt. Lauderdale Retirement Home - Settlement Agreement CL. No.: 12-1546-000; Case No.: 12-1252MPI Page 2 of 5 (¥ 8. AHCA reserves the right to enforce this Agreement under the laws of the State of Florida, the Rules of the Medicaid Program, and all other applicable rules and regulations. 9. This settlement does not constitute an admission of wrongdoing or error by either party with respect to this case or any other matter. 10. The signatories to this Agreement, acting in a representative capacity, represent that they are duly authorized to enter into this Agreement on behalf of the respective parties. 11. This Agreement shall be construed in accordance with the provisions of the laws of Florida. Venue for any action arising from this Agreement shall be in Leon County, Florida. 12. This Agreement constitutes the entire agreement between PROVIDER and AHCA, including anyone acting for, associated with or employed by them, concerning all _ Matters and supersedes any prior discussions, agreements or understandings; there are no. promises, representations or agreements between PROVIDER and AHCA other than as set forth herein. No modification or waiver of any provision shall be valid unless a written amendment to the Agreement is completed and properly executed by the parties. 13. This is an Agreement of Settlement and Compromise, made in recognition that the parties may have different or incorrect understandings, information and contentions, as to facts and law, and with each party compromising and settling any potential correctness or incorrectness of its understandings, information and contentions as to facts and law, so that no misunderstanding or misinformation shall be a ground for rescission hereof. 14. | PROVIDER expressly waives in this matter its right to any hearing pursuant to sections 120.569 or 120.57, Florida Statutes, the making of findings of fact and conclusions of law by the Agency, and all further and other proceedings to which it may be entitled by law or tules of the Agency regarding this proceeding and any and all issues raised herein. ARCA v. 2065, Inc. d/b a Ft. Lauderdale Retirement Home - Settlement Agreement C.I. No.: 12-1546-000; Case No.: 12-1252MPI Page 3 of 5 PROVIDER further agrees that it shall not challenge or contest any Final Order entered in this matter which is consistent with the terms of this settlement agreement in any forum now or in the future available to it, including the right to any administrative proceeding, circuit or federal court action or any appeal. 15. | PROVIDER does hereby discharge the State of Florida, Agency for Health Care Administration, and its agents, representatives, and attorneys of and from all claims, demands, actions, causes of action, suits, damages, losses and expenses, of any and every nature whatsoever, arising out of or in any way related to this matter, AHCA’s actions herein, including, but not limited to, any claims that were or may be asserted in any federal or state court or administrative forum, including any claims arising out of this agreement. 16. The parties agree to bear their own attorney’s fees and costs, if any. 17. This Agreement is and shall be deemed jointly drafted and written by all parties to it and shall not be construed or interpreted against the party originating or preparing it. 18. To the extent that any provision of this Agreement is prohibited by law for any reason, such provision shall be effective to the extent not so prohibited, and such prohibition shall not affect any other provision of this Agreement, 19. | This Agreement shall inure to the benefit of and be binding on each party’s successors, assigns, heirs, administrators, representatives and trustees. 20. All times stated herein are of the essence of this Agreement. 21. This Agreement shall be in full force and effect upon execution by the respective parties in counterpart. THE REMAINDER OF THIS PAGE IS INTENTIONALLY BLANK AHCA v. 2065, Inc. d/b a Ft. Lauderdale Retirement Home - Settlement Agreement Page 4 of 5 C.L. No.: 12-1546-000; Case No.: 12-1252MPI Z l ) 2065. INC. d/b/a FT. LAYDERDALE RETIREMENT HOME md LAS Dated: 02/0 # 2013 BY Dac eveui ne H. Henny 2o-Bad (Print name) AGENCY FOR HEALTH CARE ADMINISTRATION 2727 Mahan Drive, Bldg. 3, Mail Stop #3 Tallahassee, FL 32308-5403 A Inspector General a pace 3/22 ye? © General Counsel Kr Kell Dated: 5 30 oy im Kellum Chief Medicaid Counsel . - Dated: —Reehie—A-Wilson ~ Trav leaden Te? Assistant General Counsel Her don i fas AHCA v. 2065, Inc. d/b a Ft. Lauderdale Retirement Home - Settlement Agreement CL. No.: 12-1546-000; Case No.: 12-1252MPI Page 5 of 5 (Page 1 of 4) FLORIDA AGENCY FOR HEALTH CARE ADMINSTRATION. Sovenot Better Health Care for ail Floridians ELIZABETH DUD EK RICK SUUT I , ELIZABETH DUDEK GOVERNOR Better Health Care for ail Floridians SECRETARY CERTIFIED MAIL NO.:7004 2510 0005 6456 0072 February 6, 2012 C.L No: 121546000 Provider No: 140290100 Provider License No: AL6634 2065, Inc. 401 SE 12" Court Ft. Lauderdale, Florida 33316 In Reply Refer to: Sanction Dear Provider: In accordance with Section 409.913, Florida Statutes (F.S.), and Rule 59G-9.070, Florida Administrative Code (F.A.C.), the Agency for Health Care Administration (Agency), shall apply sanctions for violations of federal and state laws, including the following violations of Medicaid policy: © Seven (7) of eight (8) recipient records reviewed did not contain Service Plans (G.L: H.Z.5M.R.Z.; T.W.; C.W.; S.A.C.; P.A.A,) in the files. © One (1) of eight (8) recipient records reviewed did not contain a current Health Assessment and Service Plan in the file (M.H.). * A look at the Medication Observation Records (MORs) revealed five (5) residents sheet were pre-annotated and/or not annotated at all albeit medication already administered (MLR, 8.Q.; WAR: DLA: P.T)). This letter shall serve as notice of the following sanction(s): * A fine of $13,000.00 for violation(s) of 7(e) under Rule Section 59G-9.070, F.A.C. Furthermore, this letter serves as notice that the agency, upon entry of a final agency order, a judgment or order of a court of competent jurisdiction, or a stipulation or settlement, may collect the moneys owed by ali means allowable by law, including, but not limited to, notifying any fiscal intermediary of Medicare benefits that the state has a superior right of payment. Upon receipt of such written notification, the Medicare fiscal intermediary shall remit to the state the sum claimed. This is in accordance with Section 409.913, (25)(d) F.S. Visit AHCA online at http://ahca.myflorida.com 2727 Mahan Drive, MS# 6 Tallahassee, Florida 32308 (Page 2 of 4) 2065, Ine. PN 140290100 File # 80333 Page 2 of 4 (Ex.1) Please remit a certified check in the amount of $1 3,000.00. The check must be payable to the Florida Agency for Health Care Administration. Questions regarding procedures for submitting payment should be directed to Medicaid Accounts Receivable, (850) 412-3858. To ensure proper credit, be certain your provider number and the investigation case number (121546000) are shown on your check. Please mail payment to: Medicaid Accounts Receivable - MS # 14 Agency for Health Care Administration 2727 Mahan Drive Bldg. 2, Ste. 200 Tallahassee, FL 32308 If payment is not received, or arranged for, within 30 days of receipt of this letter, the Agency may withhold Medicaid payments or impose additional sanctions, which include, but are not limited to, fines, suspension and termination from the Medicaid Program. You have the right to request a formal or informal hearing pursuant to Section 120.569, F.S. Ifa request for a formal hearing is made, the petition must be made in compliance with Section 28- 106.201, F.A.C. and mediation may be available. If a request for an informal hearing is made, the petition must be made in compliance with rule Section 28-106.301, F.A.C. Additionally, you are hereby informed that if a request for a hearing is made, the petition must be received by the Agency within twenty-one (21) days of receipt of this letter. For more information regarding your hearing and mediation rights, please see the attached Notice of Administrative Hearing and Mediation Rights. Any questions you may have about this matter should be directed to: Maritza Perpina, Inspector Specialist, Agency for Health Care Administration, Medicaid Program Integrity, PO Box 52-2804, Miami, Florida 33152-2804, telephone (305) 718-5900, facsimile (305) 718- 5944, Sincerely, fee: Dozier Field Office Manager Office of Inspector General Medicaid Program Integrity Enclosures ce: = AHCA Bureau of Finance and Accounting Aita; Katrina Derico-Harris Health Quality Assurance (HQA) (Page 3 of 4) 2065, Inc. PN 140290100 File # 80333 Page 3 of 4 NOTICE OF ADMINISTRATIVE HEARING AND MEDIATION RIGHTS You have the right to request an administrative hearing | pursuant to Sections 120, 569 and 120. 57, wate Mtaet alae You have the right to request an ‘administrative hearing pursuant to Sections 130. 369 and 730. 37, Florida Statutes. If you disagree with the facts stated in the foregoing Final Audit Report (hereinafter FAR), you may request a formal administrative hearing pursuant to Section 120.57(1), Florida Statutes. If you do not dispute the facts stated in the FAR, but believe there are additional reasons to grant the relicf you seek, you may request an informal administrative hearing pursuant to Section 120.57(2), Florida Statutes. Additionally, pursuant to Section 120.573, Florida Statutes, mediation may be available if you have chosen a formal administrative hearing, as discussed more fully below. The written request for an administrative hearing must conform to the requirements of either Rule 28-106.201(2) or Rule 28-106,301(2), Florida Administrative Code, and must be received by the Agency for Health Care Administration, by 5:00 P.M. no later than 2] days after you received the FAR, The address for filing the written request for an administrative hearing is: Richard J. Shoop, Esquire Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Mail Stop #3 Tallahassee, Florida 32308 Fax: (850) 921-0158 The request must be legible, on 8 % 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; An explanation of how your substantial interests will be affected by the action described in the FAR; 3, A statement of when and how you received the FAR; 4. For a request for formal hearing, a statement of all disputed issues of material fact; 5. For a request for formal hearing, a concise statement of the ultimate facts alleged, as well as the tules and statutes which entitle you to relief; 6. For a 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. N A formal hearing will be held if there are disputed issues of material fact. Additionally, mediation may be available in conjunction with a formal hearing, Mediation is a way to use a neutral third party to assist the parties in a legal or administrative proceeding to reach a settlement of their case. If you and the Agency agree to mediation, it does not mean that you give up the right to a hearing. Rather, you and the Agency will try to settle your case first with mediation. If you request mediation, and the Agency agrees to it, you will be contacted by the Agency to set up 2 time for the mediation and to enter into a mediation agreement. If a mediation agreement is not reached within 10 days following the request for mediation, the matter will proceed without mediation. The mediation must be concluded within 60 days of having entered into the agreement, unless you and the Agency agree to a different time period. The mediation agreement between you and the Agency will include provisions for selecting the mediator, the allocation of costs and fees associated with the mediation, and the confidentiality of discussions and documents involved in the mediation, Mediators charge hourly fees that must be shared equally by you and the Agency. Ifa written request for an administrative hearing is not timely received you will have waived your right to have the intended action reviewed pursuant to Chapter 120, Florida Statutes, and the action set forth in the FAR shalt be conclusive and final. (Page 4 of 4) . 2065, Inc. PN 140290100 File # 80333 Page 4 of 4 Complete this form and send along with vour check to: Complete this form and send along with your check to: Agency for Health Care Administration Medicaid Accounts Receivable 2727 Mahan Drive, Mail Stop #14 Tallahassee, Florida 32308 CHECK MUST BE MADE PAYABLE TO: FLORIDA AGENCY FOR HEALTH CARE ADMINISTRATION Provider Name: 2065, Inc. Provider 1D: 140290100 MPI Case #: 121546000 Overpayment Amount: Fine Amount: $13,000.00 Total Amount Owed: $13,000.00 _ Check Number:
Conclusions This cause came before me for issuance of a Final Order. In a sanction letter dated November 9, 2011, Respondent, Jumerolis Home Care Corp. was informed the Agency was seeking to impose a fine in the amount of eight thousand dollars ($8,000.00). The letter was sent certified mail, return receipt requested to Jumerolis Home Care Corp. (hereinafter “PROVIDER”). The letter contained full disclosure and notice regarding the PROVIDER’S administrative hearing and due process rights. The PROVIDER filed a petition for hearing. Upon review of documents subsequently submitted by the PROVIDER to the Agency, it was determined the sanction should be recalculated and the fine was adjusted to one thousand dollars ($1,000.00). A copy of the correspondence reflecting the recalculated fine is attached hereto and incorporated by reference herein. The PROVIDER paid the fine of $1,000.00 to the Agency’s Finance and Accounting Department on February 21, 2012. Copies of the check(s) and final agency action report(s) are also incorporated by reference herein. The PROVIDER withdrew the Petition. AHCA v Jumerolis Home Care Corp. Page I of 3 Filed April 20, 2012 9:54 AM Division of Administrative Hearings The PROVIDER paid the fine of $1,000.00 to the Agency’s Finance and Accounting Department on February 21, 2012. Copies of the check(s) and final agency action report(s) are also incorporated by reference herein. The PROVIDER withdrew the Petition. Based on the foregoing, the sanction has been paid and the file is CLOSED. DONE AND ORDERED this ~Pba SL Pbay of April, 2012, in Tallahassee, Florida. fl Gh ll tary Agency for Health Care Administration A PARTY WHO IS ADVERSELY AFFECTED BY THIS FINAL ORDER IS ENTITLED TO A JUDICIAL REVIEW WHICH SHALL BE INSTITUTED BY FILING ONE COPY OF A NOTICE OF APPEAL WITH THE AGENCY CLERK OF AHCA, AND A SECOND COPY ALONG WITH FILING FEE AS PRESCRIBED BY LAW, WITH THE DISTRICT COURT OF APPEAL IN THE APPELLATE DISTRICT WHERE THE AGENCY MAINTAINS ITS HEADQUARTERS OR WHERE A PARTY RESIDES. REVIEW PROCEEDINGS SHALL BE CONDUCTED IN ACCORDANCE WITH THE FLORIDA APPELLATE RULES. THE NOTICE OF APPEAL MUST BE FILED WITHIN 30 DAYS OF RENDITION OF THE ORDER TO BE REVIEWED. Copies furnished to: Allan Cao Beverly H. Smith, Esquire Jumerolis Home Care Corp. Assistant General Counsel 956 Southwest 143 Place Agency for Health Care Administration Miami, Florida 33184 2727 Mahan Drive, MS #3 (U.S. Mail) Tallahassee, Florida 32308 (Interoffice Mail) Claude B. Arrington Mike Blackburn, Bureau Chief, Medicaid Administrative Law Judge Program Integrity Division of Administrative Hearings (Interoffice Mail) The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (U.S. Mail) Finance and Accounting Health Quality Assurance AHCA v Jumerolis Home Care Corp. Page 2 of 3 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished to the above named addresses by U.S. Mail on this the 70 Tay of April, 2012. Richard Shoop, Esquire Agency Clerk State of Florida Agency for Health Care Administration 2727 Mahan Drive, MS #3 Tallahassee, Florida 32308-5403 (850) 412-3630/FAX (850) 921-0158 AHCA v Jumerolis Home Care Corp. Page 3 of 3 , FLORIDA AGENCY FOR HEALTH CARE ADMINISTRATION, RICK SCOTT we ELIZABETH DUDEK GOVERNOR Better Health Care for all Floridians SECRETARY CERTIFIED MAIL RETURN RECEIPT NO. January 17, 2012 C.I. No: 120804000 Provider No: 142533100 Provider License No: 9687 Jumerolis Home Care Corporation 956 SW 143" Place Miami, Florida, 33184 In Reply Refer to: Sanction Dear Provider: In accordance with Section 409.913, Florida Statutes (F.S.), and Rule 59G-9.070, Florida Administrative Code (F.A.C.), the Agency for Health Care Administration (Agency), shall apply sanctions for violations of federal and state laws, including the following violation of Medicaid policy: e Failure to maintain a current Health Assessment and Service plan in one recipient record. . This letter shall serve as notice of the following sanction(s): e A fine of $1000.00 for violation(s) of 7(e) under Rule Section 59G-9.070, F.A.C. Furthermore, this letter serves as notice that the agency, upon entry of a final agency order, a judgment or order of a court of competent jurisdiction, or a stipulation or settlement, may collect the moneys owed by all means allowable by law, including, but not limited to, notifying any fiscal intermediary of Medicare benefits that the state has a superior right of payment. Upon receipt of such written notification, the Medicare fiscal intermediary shall remit to the state the sum claimed. This is in accordance with Section 409.913, (25) (d) FS. Please remit a certified check in the amount of $1000.00. The check must be payable to the Florida Agency for Health Care Administration. Questions regarding procedures for submitting payment should be directed to Medicaid Accounts Receivable, (850) 488-5869. To ensure proper credit, be certain your provider number and the investigation case number (120804000) are shown on your check. Please mail payment to: Medicaid Accounts Receivable - MS # 14 Agency for Health Care Administration 2727 Mahan Drive Bldg. 2, Ste. 200 Tallahassee, FL 32308 2727 Mahan Drive, MS# 6 Tallahassee, Florida 32308 Visit AHCA online at http://ahca.myflorida.com Jumerolis Home Care Corporation 142533100 File 78604 or Case 120804000 January 17, 2012 Page 2 of 4 If payment is not received, or arranged for, within 30 days of receipt of this letter, the Agency may withhold Medicaid payments or impose additional sanctions, which include, but are not limited to, fines, suspension and termination from the Medicaid Program. You have the right to request a formal or informal hearing pursuant to Section 120.569, F.S. Ifa request for a formal hearing is made, the petition must be made in compliance with Section 28- 106.201, F.A.C. and mediation may be available. If a request for an informal hearing is made, the petition must be made in compliance with rule Section 28-106.301, F.A.C. Additionally, you are hereby informed that if a request for a hearing is made, the petition must be received by the Agency within twenty-one (21) days of receipt of this letter. For more information regarding your hearing and mediation rights, please see the attached Notice of Administrative Hearing and Mediation Rights. Any questions you may have about this matter should be directed to: Heberto A. Blandino, Inspector; Agency for Health Care Administration, Medicaid Program Integrity, P.O. Box 52-2804, Miami, Florida 33152-2804, telephone (305) 718-5900, facsimile (305) 718-5944. Sincerely, Horace Dozier Field Office Manager Office of Inspector General Medicaid Program Integrity Enclosures ce: AHCA Bureau of Finance and Accounting Attn: Katrina Derico-Harris Health Quality Assurance (HQA) (Ex.1) Jumerolis Home Care Corporation 142533100 File 78604 or Case 120804000 January 17,2012 Page 3 of 4 NOTICE OF ADMINISTRATIVE HEARING AND MEDIATION RIGHTS You have the right to request an administrative hearing pursuant to Sections 120.569 and 120.57, Florida Statutes. If you disagree with the facts stated in the foregoing Final Audit Report (hereinafter FAR), you may request a formal administrative hearing pursuant to Section 120.57(1), Florida Statutes. If you do not dispute the facts stated in the FAR, but believe there are additional reasons to grant the relief you seek, you may request an informal administrative hearing pursuant to Section 120.57(2), Florida Statutes. Additionally, pursuant to Section 120.573, Florida Statutes, mediation may be available if you have chosen a formal administrative hearing, as discussed more fully below. The written request for an administrative hearing must conform to the requirements of either Rule 28-106.201(2) or Rule 28-106.301(2), Florida Administrative Code, and must be received by the Agency for Health Care Administration, by 5:00 P.M. no later than 21 days after you received the FAR. The address for filing the written request for an administrative hearing is: Richard J. Shoop, Esquire Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Mail Stop #3 Tallahassee, Florida 32308 Fax: (850) 921-0158 The request must be legible, on 8 4 by 11-inch white paper, and contain: 1. Your name, address, telephone number, any Agency identifying number on the FAR, if known, and name, address, and telephone number of your representative, if any; 2. An explanation of how your substantial interests will be affected by the action described in the FAR; 3. A statement of when and how you received the FAR; 4. For arequest for formal hearing, a statement of all disputed issues of material fact; 5. For a request for formal hearing, a concise statement of the ultimate facts alleged, as well as the rules and statutes which entitle you to relief; 6. For arequest for formal hearing, whether you request mediation, if it is available; 7. For a request for informal! hearing, what bases support an adjustment to the amount owed to the Agency; and 8. A demand for relief. A formal hearing will be held if there are disputed issues of material fact. Additionally, mediation may be available in conjunction with a formal hearing. Mediation is a way to use a neutral third party to assist the parties in a legal or administrative proceeding to reach a settlement of their case. If you and the Agency agree to mediation, it does not mean that you give up the right to a hearing. Rather, you and the Agency will try to settle your case first with mediation. If you request mediation, and the Agency agrees to it, you will be contacted by the Agency to set up a time for the mediation and to enter into a mediation agreement. If a mediation agreement is not reached within 10 days following the request for mediation, the matter will proceed without mediation. The mediation must be concluded within 60 days of having entered into the agreement, unless you and the Agency agree to a different time period. The mediation agreement between you and the Agency will include provisions for selecting the mediator, the allocation of costs and fees associated with the mediation, and the confidentiality of discussions and documents involved in the mediation. Mediators charge hourly fees that must be shared equally by you and the Agency. If a written request for an administrative hearing is not timely received you will have waived your right to have the intended action reviewed pursuant to Chapter 120, Florida Statutes, and the action set forth in the FAR shall be conclusive and final. Jumerolis Home Care Corporation 142533100 File 78604 or Case 120804000 January 17, 2012 Page 4 of 4 Complete this form and send along with your check to: Agency for Health Care Administration Medicaid Accounts Receivable 2727 Mahan Drive, Mail Stop #14 Tallahassee, Florida 32308 CHECK MUST BE MADE PAYABLE TO: FLORIDA AGENCY FOR HEALTH CARE ADMINISTRATION Provider Name: Jumerolis Home Care Provider ID: 142533100 MPI Case #: 120804000 Overpayment Amount: Fine Amount: $1000.00 Total Amount Owed: $1000.00 Check Number: Untitled Document Page 1 of 1 finw knfo] cross Ref [Activities] Contacts|Notes] Docs] Allegations] Payments Payments A Transactions Trans type |_—iDate_—|~——Totaltrans Amount] 0/P] Fine] interest] Misc| ouaij20i2 $3,000.01 _90.03| ¥3,000.00] 90-00] $0.00 BILL ADJUSTMENT 02/21/2012 ($0.01)] ($0.01) $0.00 $0.00} $0.00 COLLECTED 02/21/2012 ($1,000.00)] $0.00] ($1,000.00) $0.00] $0.00 [_eatances] | sono] ano] gaa] ¢0.00] go.00 Disclaimer: This batance should not be used to quote amount due by provider. Only F/A can verify amounts for this purpose. ©1994 infinity Software Development, Inc. User Documentation http://ahcanet/facts/payments_mar.asp 03/07/2012
The Issue 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.
