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 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
The Issue Whether the Respondent has sufficient general revenue funds to provide the Petitioner with services under the Respondent's Developmental Disabilities Program.
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 is the state agency charged with administering and determining eligibility for services to developmentally disabled individuals pursuant to Florida's Developmental Disabilities Prevention and Community Services Act, Chapter 393, Florida Statutes. Section 393.065, Florida Statutes. The program developed by the Department is known as the Developmental Disabilities Program. Jake is a resident of Miami, Florida, and is four and one-half years of age, having been born October 6, 1997. On October 24, 2000, Jake's parents submitted on his behalf an application requesting that the Department enroll him in its Developmental Disabilities Program and provide him with physical, occupational, and speech therapy services as a developmentally disabled individual.2 The parties stipulated to the following facts: Jake has a rare genetic disorder called "Williams Syndrome," which causes significant developmental delays. Jake also has a significant hearing impairment, which exasperates his developmental delays. Among other developmental delays, Jake cannot walk on his own, is unable to talk, and is unable to respond to verbal requests. Jake requires regular and frequent physical, occupational, and speech therapies, and Jake is eligible to receive these services under the Department's Developmental Disabilities Program. A social worker employed by the Department advised Jake's mother on October 25, 2000, that Jake was eligible for the requested services. The social worker developed a family support plan, which Jake's mother signed on January 12, 2001. Pursuant to the Department's policies, the Department considered Jake a "client" of the Department and eligible for services on the date the family support plan was signed. According to the Department's witness, the funding category at issue in this case is state general revenue funds appropriated by the Florida Legislature and not federal funds. Upon receiving Jake's application for services under the Department's Developmental Disabilities Program, the Department reviewed the request and implemented a prioritization schedule set forth in a Department memorandum dated June 1, 2001. The subject matter of the memorandum is identified as "State Fiscal Year 2001-2002 Spending Plan Implementation Instructions ("Spending Plan")."3 The Spending Plan was developed in accordance with the following directive of the Legislature, which is found in the Conference Report on SB 2000: General Appropriations for 2001-02, May 1, 2001 ("Conference Report"): Funds in Specific Appropriations 374 and 377 are intended to provide Home and Community- Based Services Waiver Services in accordance with a spending plan developed by the Department of Children and Family Services and submitted to the Executive Office of the Governor for approval by November 1, 2001. Such plan shall include a financially feasible timeframe for providing services to persons who are on waiting lists for fiscal years 1999-2000 and 2000-2001 and those eligible persons who apply for services during fiscal year 2001-2002. Such persons shall be enrolled in the waiver in accordance with the department's policy for serving persons on the waiting list. The Spending Plan relates to the distribution of funds to persons served through the Home and Community-Based Waiver Services program ("Waiver Program"), which is co-funded by the federal government as part of the Medicaid program.4 The Spending Plan establishes five "priority" categories for providing services through the Waiver Program: Persons who were clients as of July 1, 1999; members of the class in the case of Cramer v. Bush; persons not on the original waiting list who are in crisis (an estimated ten new clients monthly, statewide); persons discharged from the Mentally Retarded Defendant Program; and "[p]ersons who have become clients since July 1, 1999, in date order (new waiting list) -- projected to be approximately 6,284 persons remaining to be phased in between March 2002 and June 2002, subject to vacancies on the Waiver and available funding." The Spending Plan further provides that "[i]n order to serve the estimated additional 6,774 individuals who are projected to want and need Waiver services during FY 01-02, enrollment on the Waiver will be phased in as described above." According to the procedure specified in the Spending Plan, a waiting list for Waiver Program services is maintained by the Department's Central Office of the Developmental Disabilities Program, and that office advises the various districts when they may begin providing services to a person on the list. According to the Spending Plan, services are to be provided to individuals on the waiting list "subject to vacancies on the Waiver and available funding." Upon review of his application for services, the Department classified Jake in the fifth category of the Spending Plan as a person who become a client after July 1, 1999, and his name was placed on the waiting list to receive services provided through Waiver Program funding. Although no evidence was presented on this point, it is apparent from the text of the Spending Plan that, in addition to the Waiver Program funding for services to the developmentally disabled, there is a second source of funding for services to these individuals, Individual and Family Supports ("IFS") funding.5 The Department did not provide any indication in its denial letter and it did not present any evidence at the final hearing to establish that the "general revenue funds" at issue were IFS funds. It has been necessary to infer from the record that such is the case.6 Although the Department presented no evidence with respect to Jake's eligibility for services from IFS funds or with respect to the availability of IFS funds to provide Jake with the services for which he is eligible, the Spending Plan provides: "The use of non-Waiver funds (Individual and Family Supports (IFS) budget category) to fund services for additional persons who are awaiting enrollment on the Waiver is prohibited." The only possible inference from the evidence presented by the Department and from the record as a whole is that, notwithstanding the reasons stated in the Department's denial letter in this case, Jake was denied services from IFS funds because he was placed on the Medicaid Waiver Program waiting list.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Children and Family Services enter a final order finding that Jake Cheskin shall remain on the waiting list for Home and Community-Based Waiver Services under the Developmental Disabilities Program and ordering that Jake Cheskin shall be provided with the physical, occupational, and speech therapy services for which he is eligible as soon as a vacancy occurs or additional funding is available under the Department's Developmental Disabilities Program.8 DONE AND ENTERED this 31st day of July, 2002, 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 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 31st day of July, 2002.
Conclusions any 212 Poe ap, AS 1g DOAH No. 12-2633 AHCA No. 2012003965 RENDITION NO.: AHCA-12- {tF 27S Ole DOAH No. 12-2865 AHCA No. 2012008077 License No. 11870 File No. 11967907 Provider Type: Assisted Living Facility DOAH No. 12-2866 AHCA No. 2012003189 THIS CAUSE came on for consideration before the Agency for Health Care Administration (“the Agency”), which finds and concludes as follows: 1 The applicant’s fictitious names on the settlement agreement are reversed. 1 Filed December 7, 2012 4:54 PM Division of Administrative Hearings 1. The Agency has jurisdiction over the above-named Provider pursuant to Chapter 408, Part II, Florida Statutes, and the applicable authorizing statutes and administrative code provisions. 2. The Agency issued the attached Administrative Complaint and Notices of Intent to Deny and Election of Rights forms to the Provider. (Composite Ex. 1) The Election of Rights form advised of the right to an administrative hearing. 3. The parties have since entered into the attached Settlement Agreement. (Ex. 2) 4. The Settlement Agreement is adopted and incorporated by reference into this Final Order. The parties shall comply with the terms of the Settlement Agreement. 5. The Provider’s renewal application for Cooper’s Retirement Home and initial application for Cooper’s Residential Home are withdrawn without prejudice to the Provider reapplying for such licensure in the future. The corresponding Notices of Intent to Deny these applications are moot and are thus withdrawn. 6. In accordance with Florida law, the expiration date of the existing license for Cooper’s Retirement Home is extended 30 days for the sole purpose of allowing the safe and orderly discharge of clients. At the conclusion of 30 days or upon the discontinuance of operations, whichever is first in time, the Petitioner shall immediately return the license certificate for the license which is the subject of this action to the appropriate licensure unit in Tallahassee, Florida. 7. The Provider shall pay the Agency $2,500.00. If full payment has been made, the cancelled check acts as receipt of payment and no further payment is required. If full payment has not been made, payment is due within 30 days of the Final Order. Overdue amounts are subject to statutory interest and may be referred to collections. A check made payable to the “Agency for Health Care Administration” and containing the AHCA ten-digit case number should be sent to: Office of Finance and Accounting Revenue Management Unit Agency for Health Care Administration 2727 Mahan Drive, MS 14 Tallahassee, Florida 32308 8. Any requests for an administrative hearing are withdrawn. The parties shall bear their own costs and attorney’s fees. This matter is closed. ORDERED in Tallahassee, Florida, on this (“4 day of Qeaertlee.. 52012.
Other Judicial Opinions A party that is adversely affected by this Final Order is entitled to seek 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. CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy ofthis Final we was served on the below- named persons/entities by the method designated on this 6 day of , 2012. Richard Shoop, Agency Cler Agency for Health Care Administration 2727 Mahan Drive, Mail Stop #3 Tallahassee, Florida 32308-5403 Telephone (850) 412-3630 Jan Mills Shaddrick Haston, Unit Manager Facilities Intake Unit Assisted Living Unit Agency for Health Care Administration Agency for Health Care Administration (Electronic Mail) (Electronic Mail) Finance and Accounting Theresa DeCanio, Field Office Manager Revenue Management Unit Area 7 Agency for Health Care Administration Agency for Health Care Administration (Electronic Mail) (Electronic Mail) Katrina Derico-Harris Medicaid Accounts Receivable Agency for Health Care Administration (Electronic Mail) Edwin D. Selby, Senior Attorney Office of the General Counsel Agency for Health Care Administration (Electronic Mail) Shawn McCauley Medicaid Contract Management Agency for Health Care Administration Harvey M. Alper, Esquire Post Office Box 162967 Altamonte Springs, Florida 32716-2967 (U.S. Mail) | Electronic Mail) Lynne A. Quimby-Pennock Administrative Law Judge Division of Administrative Hearings (Electronic Mail) NOTICE OF FLORIDA LAW 408.804 License required; display.-- (1) It is unlawful to provide services that require licensure, or operate or maintain a provider that offers or provides services that require licensure, without first obtaining from the agency a license authorizing the provision of such services or the operation or maintenance of such provider. (2) A license must be displayed in a conspicuous place readily visible to clients who enter at the address that appears on the license and is valid only in the hands of the licensee to whom it is issued and may not be sold, assigned, or otherwise transferred, voluntarily or involuntarily. The license is valid only for the licensee, provider, and location for which the license is issued. 408.812 Unlicensed activity.-- (1) A person or entity may not offer or advertise services that require licensure as defined by this part, authorizing statutes, or applicable rules to the public without obtaining a valid license from the agency. A licenseholder may not advertise or hold out to the public that he or she holds a license for other than that for which he or she actually holds the license. (2) The operation or maintenance of an unlicensed provider or the performance of any services that require licensure without proper licensure is a violation of this part and authorizing statutes. Unlicensed activity constitutes harm that materially affects the health, safety, and welfare of clients. The agency or any state attorney may, in addition to other remedies provided in this part, bring an action for an injunction to restrain such violation, or to enjoin the future operation or maintenance of the unlicensed provider or the performance of any services in violation of this part and authorizing statutes, until compliance with this part, authorizing statutes, and agency rules has been demonstrated to the satisfaction of the agency. (3) It is unlawful for any person or entity to own, operate, or maintain an unlicensed provider. If after receiving notification from the agency, such person or entity fails to cease operation and apply for a license under this part and authorizing statutes, the person or entity shall be subject to penalties as prescribed by authorizing statutes and applicable rules. Each day of continued operation is a separate offense. (4) Any person or entity that fails to cease operation after agency notification may be fined $1,000 for each day of noncompliance. (5) When a controlling interest or licensee has an interest in more than one provider and fails to license a provider rendering services that require licensure, the agency may revoke all licenses and impose actions under s. 408.814 and a fine of $1,000 per day, unless otherwise specified by authorizing statutes, against each licensee until such time as the appropriate license is obtained for the unlicensed operation. (6) In addition to granting injunctive relief pursuant to subsection (2), if the agency determines that a person or entity is operating or maintaining a provider without obtaining a license and determines that a condition exists that poses a threat to the health, safety, or welfare of a client of the provider, the person or entity is subject to the same actions and fines imposed against a licensee as specified in this part, authorizing statutes, and agency rules. (7) Any person aware of the operation of an unlicensed provider must report that provider to the agency.
The Issue The issue in this proceeding is whether Petitioner Ryan Flint, the minor son of his personal representative and mother, Madeline Flint, should immediately receive developmental services or remain on a waiting list for such services until funding is available.
Findings Of Fact At the time of the hearing, Ryan Flint was three years old and has been identified as being on the "autism spectrum." Autism spectrum puts Ryan at risk of having a developmental disability, but is not itself a developmental disability. Testing at a later date will ascertain whether he actually has a developmental disability. Until such testing can be accomplished, however, pursuant to federal law and long-standing policy, the Department regards Ryan Flint as a client because of his risk status. The parties stipulated that Ryan is eligible for services of the Developmental Services Program. Ryan became a client of Developmental Services on June 20, 2000. Despite the rejection language of the notice of denial letter, Ryan was placed on a waiting list and may ultimately be provided the requested services from Respondent. Currently, there are approximately eight thousand persons who became clients of the Developmental Services Program after July 1, 1999. Ryan was receiving services through Children's Home Society. However, because he turned three years old he no longer qualifies for services under that program. Children's Home Society referred him to Developmental Services for evaluation. Mrs. Flint recalls that the "intake" for services was done May 11, 2000. It was Mrs. Flint's impression from the intake interview that Ryan would receive the requested services. This continued to be her impression when Ryan's service plan was written in June of 2000. Ryan currently receives some occupational therapy services through the local school board. However, these occupational services are limited to those which are only educationally necessary such as writing skills and do not extend to other non-educational skills such as running. A long and complex chain of events and circumstances led to the situation faced by Ryan Flint. Prior to the 1999 legislative session, the Department identified 23,361 Developmental Services clients who were either not getting services from the developmental services program or who were not receiving adequate services. The Department's Legislative Budget Request for fiscal year 1999-2000, included a plan to address the underserved clients over a two-year period. Under this plan, 15,984 of the identified 23,361 clients would be served during fiscal year 1999-2000, with the remaining 7377 clients to be added to the group in fiscal year 2000-2001. The Legislature elected to route the new moneys into the Medicaid Waiver program. That program provided for a 45/55 State/Federal match, under which fifty-five cents of federal moneys would be provided for every forty-five cents contributed by the Florida Legislature. Since most of these clients resided in the community and not in institutions, the program utilized under this plan was not the Institutional Medicaid program, but the Home Community Based Waiver program. The Home Community Based Waiver program, also called the Medicaid Waiver program, differs from the Institutional Medicaid program. The Institutional Medicaid program is an entitlement program. The Medicaid Waiver program is not. Consequently, the moneys which fund the Medicaid Waiver program are limited and claims on such programs must be prioritized. The Legislature directed the Department to prioritize these limited funds in proviso language of the 1999-2000 Appropriations Act: . . . Priorities for this funding, in order, are as follows: 1) Transitions for those requesting transfers from Intermediate Care Facilities for the Developmentally Disabled (ICF/DD) institutional placements into Home and Community Based Waiver residential placements, and 2) Meeting the needs of identified under-served participants in the Home and Community Based Waiver Services after accurately assessing the actual costs of each person's support plan. The 2000 Appropriations Act contained proviso language identical to that found in the 1999 Appropriations Act referenced in paragraph 9. The Department implemented this legislative mandate by implementing policy that, except for crisis situations, only persons who were clients on July 1, 1999, would receive services. All others would be put on a waiting list. Ryan Flint is not eligible for the Medicaid Waiver Program. The funds Mrs. Flint seeks come from another source, the Individual and Family Support appropriation. However, as a matter of policy, the Department has applied the prioritization described in paragraph 11, not only to the appropriations made through the Medicaid Waiver program, but also to those relating to the Individual and Family Support appropriation. This policy was communicated to the Department's District Administrators and Developmental Services Program Administrators in a memorandum dated May 22, 2000. Utilizing this policy, the result in this case is the same as if Ryan had been on the Medicaid waiver. Jo Ann Braun, a Human Services Counselor with the Department, was not aware of the new policy until August of 2000. Thus, she could not have been aware of the new policy at the time she wrote Ryan's service plan which was in June 2000. According to Ms. Braun, as this policy was in the process of being disseminated through the Department, there may have been some clients who did not meet the crisis criteria and who entered the system after July 1, 1999, who received services. However, once the Department staff received and began implementing the policy, new clients were put on the waiting list and did not begin to receive services. In the past two years, the Legislature has not appropriated any new funds under the Individual and Family Support Program. Thus, since the existing client base in Developmental Services remained static, the new client base has increased by approximately 8,000 clients since July 1, 1999. Since the client base increased by 8,000 but the funding did not increase, the Department was faced with a decision as to how to fairly and consistently use the funding that was available. The Department determined that the only way it could provide funds to new clients would be by withholding services from existing clients who already received these services. However, it is not the policy of the Department to take money from someone who already is receiving services and give it to someone new. Faced with two choices, neither of which was desirable, the Department implemented a policy which requires that the allocation of Developmental Services moneys be made on a consistent basis. That is, the Department elected to apply these moneys in a manner consistent with the Medicaid Waiver appropriation. Moreover, many of the clients who receive Medicaid Waiver funds also receive Individual and Family Support funds. Additionally, the Department's prioritization puts at the top of the list those clients who are in crisis. Under these circumstances, the Department's decision to allocate the Individual and Family Support moneys in the same manner as the Medicaid Waiver moneys is not unreasonable or arbitrary. Applying the Department's policy, Ryan can only receive services if he is in crisis because he became a client after July 1, 1999. The Department has identified six conditions which, if present, constitute a crisis which would permit it to provide services to persons who became clients after July 1, 1999. These are: A court order from a criminal proceeding requires the Department to provide services. The client is highly dangerous to himself or others, and danger will continue if services are not provided immediately. The client is living in a high risk situation in which abuse and/or neglect is occurring or likely to occur. The client is homeless, living either in a homeless shelter or on the street. The caregiver is unable to provide care for the client, no alternative arrangements are possible, and without the provision of services, the client cannot safely remain with the caregiver. Other circumstances exist which will present a danger to the client's safety and/or security if services are not provided. The parties stipulated that Ryan Flint met none of the foregoing criteria. Consequently, the Department did not provide him the services his mother sought on his behalf.
Recommendation Based upon the findings of fact and conclusions of law, it is RECOMMENDED: That the Department of Children and Family Services enter a Final Order leaving Ryan Flint on the waiting list of clients to be served by the Department's Developmental Services Program, and providing those services to him as soon as funds become available to do so. DONE AND ENTERED this 12th day of January, 2001, in Tallahassee, Leon County, Florida. BARBARA J. STAROS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 12th day of January, 2001. COPIES FURNISHED: Madeline Flint 1327 Conservancy Drive Tallahassee, Florida 32312 John R. Perry, Esquire Department of Children and Family Services 2639 North Monroe Street, Suite 100A Tallahassee, Florida 32399-2949 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 issues to be resolved in this proceeding concern whether the Respondent, Department of Health and Rehabilitative Services (HRS), acted pursuant to proper legal authority in terminating the Petitioner's certification as an "independent support coordinator" (ISC) under the program known as the Developmental Services Home and Community-Based Services Waiver (Medicaid Waiver Program).
Findings Of Fact The Petitioner was a resident of Havana, Florida, and maintained her office at her home at times pertinent hereto. She has a degree from Florida A&M University and a number of years of occupational experience in developmental and social services. After receiving the required training, she was certified as an ISC under contract with HRS in the Medicaid Waiver Program. HRS is an agency of the State of Florida. It is charged, as pertinent hereto, with administering and regulating the delivery of services to developmentally-disabled persons through the Medicaid Waiver Program, including the contracting with ISC's, such as the Petitioner, who provide such services to developmentally-disabled clients under this program. ISC's are independent contractors who are certified by HRS on an annual basis to provide coordination services for developmentally-disabled clients, which means that they insure that appropriate medical and social services are located, obtained and delivered to such clients. The ISC's have access to HRS computer terminals at their work sites so that they can record the number of time units (quarter hours, etc.) for which they serve clients and the amount of monies due for the services and time units provided to clients. They directly bill HRS for these services, simply by entering the billing information into the HRS medicaid computer system. Thus, great reliance is placed by HRS on the honesty and accuracy of the ISC's billings, subject to HRS' authority to audit billings and obtain recoupment for excessive billing. HRS administers the Medicaid Waiver Program for clients who are qualified for medicaid benefits and properly enrolled. Under this program, they are permitted to live at home or in some other community/residential facility and are provided social services through a network of care providers. This is done pursuant to a "support plan" which is developed and implemented according to the clients' psychological, emotional, medical and social needs. It is the function of an ISC to manage and coordinate the delivery of services to the client. In doing so, the ISC interacts with and communicates with the client's family, social worker, and care providers to determine the appropriate network of services that would best serve him. The ISC assists the client in securing the needed services, sees that those services are properly and satisfactorily delivered and that they conform to the support plan. Each ISC is required to maintain contemporaneous case notes, which reflect the actual date, time and description of all services performed for a client. An integral part of the support plan is the "cost plan" which contains a budget allocated to each client for the purpose of needed services. All services must be provided for in that cost plan. Any services not provided for in the cost plan are not normally permitted, although they may be if an amendment to the cost plan is approved by HRS. Each cost plan contains an allocation of 240 "quarter hours" budgeted annually for the services of an ISC for clients. Each ISC bills time based upon quarter hour increments. Time is billed by the ISC based upon the daily accrual of quarter hours. For instance, if an ISC provides ten minutes of service during a particular day for a given client, the ISC is permitted to bill one quarter hour of time to the client's account. If an ISC provides services at three different times during the same day, for five minutes each time, the daily accrual is one quarter hour. If an ISC provides services at two different times during the day, for ten minutes each time, the daily accrual of time billable is two quarter hours. Every ISC is responsible for billing his or her time and any charges for vendor services directly into the medicaid computer billing system. Each ISC receives a security clearance for access to the client accounts. Persons without a clearance are prevented from entering time or charges to the client account. Only services which have been approved in the support plan may be billed. The ISC's time involved in administrative duties, such as preparing case notes and billing information, undergoing computer training or conducting meetings with supervisors concerning administrative matters and training is not billable to the client's medicaid account. "Double billing" is not permitted. That is to say that different clients may not be billed for services for the same time period. For instance, if an ISC makes a single house call to interview a client and briefly speaks with another client at the same residence during the course of that interview, the ISC is not permitted to bill one quarter hour to each client during the time period involved. Neither is "multiple billing" permitted. That is, different clients may not be billed for a single service, even during different time periods. This would occur, for instance, if an ISC contacts a transportation service vendor to obtain transportation for one client for a quarter hour period and the same vendor for the following quarter hour on behalf of another client and bills a separate quarter hour and the cost of the service also to the second client. In reality, one transportation trip and service was involved with the same vendor during a one-half hour period in this example. Each ISC is required to maintain case notes of all activities performed. No activity may be billed to the Medicaid Waiver Program which is not supported by case notes which show the identify of the client, the date of the service, the time of the service, and the description of the service. Billing without this supporting documentation, contemporaneously recorded, is not permitted. Case notes must reflect truly contemporaneous time and activity. It is not permissible, for instance, to "make up" time spent, but unbilled, for whatever reason, during a prior billing cycle by entering that time hypothetically during a subsequent billing cycle. If such is done, it amounts to falsification of the ISC's case notes, and, of course, it is not appropriate to bill for activities which did not occur. The policy of the Medicaid Waiver Program, as shown by witness Trejo, who helped formulate the policy over the last two and one-half years, and witness Brown, is to promote a client's free and unfettered choice of an ISC. This is done by providing each client with certain information and promotional materials about all of the ISC's available. The ISC is required by HRS to provide HRS with the written materials containing information about that ISC. HRS then insures that these materials are delivered to clients by mail. Each client is provided with a designation form for the written selection of an ISC. HRS undertakes no solicitation or promotion on behalf of particular ISC's and does not try to influence client choices of ISC's. Certification Training ISC's must successfully complete certain training before they are certified and allowed to perform services. They are required to complete 34 hours of Statewide training known as "living everyday lives". They must also complete 24 hours of district-specific training, called simply "ISC training", which covers many topics, including Medicaid Waiver administration, values defining proper roles, planning, plan implementation, resource development, client eligibility, care providers, services provided, billing, client satisfaction, client rights issues, and residential placement. They are also required to be trained in HRS rules and policies concerning the Medicaid Waiver Program, the maintaining of records, relevant law, the documentation of their services, coordination with sub-district contracts, the confidentiality requirements, billing requirements, training in the use of the ABC computer system, and proper invoicing. During the course of the ISC training, the Petitioner was provided with a copy of proposed Rule 10F-13, Florida Administrative Code, and the related policy clarifications of the policy expressed in that rule. That rule, while not yet adopted, constitutes the agency policy for the conduct and administration of the Medicaid Waiver Program, as established by the HRS witnesses, particularly witness Trejo, who was the key person in developing that policy. (See Respondent's Exhibit 36 in evidence). The Petitioner made an application to be certified as an ISC on December 27, 1994. As a part of that application, the Petitioner executed certain "assurances", as part of a medicaid provider agreement. The Petitioner then attended and completed the above-referenced ISC training. In addition, the Petitioner received additional individual training from Ms. Hall and Ms. Brown of HRS, as well as numerous consultations with Ms. Brown concerning various administrative matters and the proper use and operation of the computer record and billing system. The Petitioner was then certified as an ISC for District 2, effective July 1, 1994. That certification lasted until the subject termination on January 4, 1995. During the time of her service as an ISC contractor, the Petitioner provided services to 15 clients, including J.S., M.E., A.W., S.E.Jr., W.M., W.R., G.T., J.R., R.S., H.M., R.M., W.O., M.C., and M.C. In cases where an ISC has deviated from a client's support or cost plan, the ISC is permitted an opportunity to propose a "corrective action plan". The corrective action plan provides a guide for how the ISC can remedy identified problems, within an acceptable time period, concerning the ISC's performance or billing operations. Failure to undertake and satisfy a corrective action plan is a basis for termination under HRS' regularly-followed policy. In the past, ISC's with identified billing problems have undertaken corrective action plans, and as part of those plans, among other requirements, have immediately reimbursed the amounts improperly billed. In one case, an ISC was required to terminate an employee, who was the source of many billing and documentation problems. In one case, an ISC was placed on a conditional, probationary certification status due to billing and documentation problems. Within 90 days after an ISC is certified, each ISC undergoes a monitoring review, in which district developmental services personnel audit the ISC's client records to determine compliance with program requirements. If the review is successful, ISC's are thereafter monitored annually for compliance. Should problems be detected in the initial monitoring review, or otherwise come to the attention of HRS through client or care provider information, additional reviews or audits may be undertaken as necessary to insure that the ISC is in compliance with the Medicaid Waiver Program policy requirements. After the Petitioner was certified, HRS, through Ms. Mary Brown circulated the written promotional materials and information provided to her concerning the services offered by the Petitioner as an ISC, in accordance with HRS policy. Ms. Brown delayed her normal mailing date in order to accommodate the late receipt of the Petitioner's promotional materials. Soon thereafter, Ms. Brown received a complaint from another ISC and calls from certain clients concerning solicitation of clients by the Petitioner, which is contrary to HRS policy. ISC's are not allowed to solicit clients. In order to address the complaint and obviate the effects of any improper solicitation of clients, Ms. Brown accompanied the Petitioner and the complaining ISC to the homes of various clients in order to conduct interviews with them. Ms. Brown provided the clients with designation forms to be completed at that time; and several clients then chose the Petitioner as their ISC. Several clients did not choose the Petitioner. Ms. Brown, however, made no attempt to influence a client concerning which ISC the client chose. Billing and Record Irregularities Beginning in September of 1994, while reviewing certain records concerning the Petitioner's ISC operations, Mr. Trejo, the Management Review Specialist for the District 2 Developmental Services Program Office, in charge of management review of the Medicaid Waiver Program, discovered certain billing irregularities. Particularly, he discovered that the Petitioner had entered excessive billing requests for certain clients. Because of this initial inquiry and the results of it, he decided to conduct a more in-depth audit of the Petitioner's ISC operations, billings, and other records. During the next few weeks, he undertook a complete review of the billing and client records of the Petitioner. Additionally, the customary 90-day monitor review of the Petitioner's client files was conducted on December 6, 1994. Mr. Trejo's review revealed the following problems with the Petitioner's billing and records concerning her clients and their services. These were described in Mr. Trejo's testimony, corroborated by other HRS witnesses. That version of events is accepted as credible and reliable: Alteration of Case Notes to Increase Time Billed. R.Exhs. 6 and 7. Unauthorized Expenditures: Exceeding Cost Plan: ME: 332 quarter hours billed in 3 months; $782 overpayment as of 11/94. R.Exh. 8. JS: 185 quarter hours billed in 2 months; projected budget depletion in one month. R.Exh. 9. JR: 176 quarter hours billed in 3 months; projected budget depletion in 2 months. R.Exh. 10. MC: 131 quarter hours billed in 2 months; projected budget depletion in 3 months. R.Exh. 11. MC: 134 quarter hours billed in 2 months; projected budget depletion in 2 months. R.Exh. 12. RS: 177 quarter hours billed in 3 months; projected budget depletion in 1 month. R.Exh. 13. Non-Billable Services: JS: date 9/10/94; 12 units billed for training. R.Exhs. 31 and 39. c. Double Billing: JS/SR: date 11/01/94. R.Exh. 14. ME/MC: date 11/15/94. R.Exh. 15. ME/WO: date 10/12/94. R.Exh. 16. ME/JS: date 10/19/94. R.Exh. 17. AW/RM: date 10/12/94. R.Exh. 18. AW/HM: date 10/03/94. R.Exh. 19. AW/ME: date 09/14/94. R.Exh. 20. JS/JR: date 09/15/94. R.Exh. 21. d. Undocumented Billing: SR: date 11/1/94; 18 units worked, 30 units billed. R.Exh. 22. JR: date 8/30/94; 5 units worked, 15 units billed. R.Exh. 23. HM: date 9/8/94; 3 units worked, 4 units billed. R.Exh. 24. HM: date 9/28/94; 1 unit worked, 2 units billed. R.Exh. 24. HM: date 9/19/94; 0 units worked, 3 units billed. R.Exh. 25. HM: date 9/28/94; 1 unit worked, 2 units billed. R.Exh. 25. MC: date 10/17/94; 0 units worked, 4 units billed. R.Exh. 26. JR: date 9/17/94; 0 units worked, 3 units billed. R.Exh. 27. MC: date 10/6/94; 0 units worked, 4 units billed. R.Exh. 28. RJ: date 9/30/94; 0 units worked, 3 units billed. R.Exh. 29. RM: date 9/28/94; 1 unit worked, 2 units billed. R.Exh. 30. WO: date 11/6/94; 2 units worked, 3 units billed. R.Exh. 31. Multiple Billing: HM/RM: date 9/30/94. SM/HM: date 10/3/94. HM/HM: date 11/25/94. HM/HM/SM/RM: dates 10/1/94 and 10/2/94. SM: dates 9/14/94 and 10/3/94. SM: dates 9/14/94, 9/15/94 and 9/16/94. R.Exh. 34. Falsification of Case Notes: MC: date 11/2/94; 24 units, including meeting with Lynn Daw that did not occur. R.Exh. 32; Tmny. Daw JR: date 9/2/94; 23 units, including meeting with Arlene Walker that did not occur because Ms. Walker was out of town. R.Exh. 33; Tmny. Walker. Because of the problems found by Mr. Trejo, a meeting was called between the Petitioner and Mr. Trejo and others of HRS to discuss these problems and the need for correction. On December 2, 1994, Mr. Trejo wrote to the Petitioner, confirming the November 22, 1994 meeting, its subject matter and advising her that a corrective action plan concerning the over-expenditure of funds allocated to her clients needed to be submitted no later than December 19, 1994. No formal plan of corrective measures or actions was submitted by the Petitioner, although on December 15, 1994, she submitted a memorandum to Ms. Mary Brown of the District 2 Developmental Services Community Services Office (agency liaison for the Medicaid Waiver Program), concerning the over- expenditures, which simply listed the total amount of support coordination units (quarter hours) that were used to provide support to each client since November 30, 1994 and showed that there were insufficient hours available to transfer from the seven clients which the Petitioner showed as having some possibly transferable quarter hour units left at the time. Therefore, the Petitioner simply requested that additional units be approved. Only one of the four performance and billing problems discussed at the earlier meeting between the Petitioner and Mr. Trejo and other HRS personnel was addressed. (Respondent's Exhibit 4 in evidence, the Petitioner's memorandum of December 15, 1994). The Petitioner merely advised Ms. Brown in that memorandum of the lack of availability of funds within her overall budget to adjust for the over-expenditures already made, which HRS already knew. She did not actually submit a plan for corrective action to alleviate the over-expenditure mode of operation she had engaged in. No plan of action of any sort was proposed to HRS to correct the other billing and documentation problems identified by HRS, through Mr. Trejo. These include the potential conflict-of-interest posed by the Petitioner's son, working as a vendor provider, authorized by the Petitioner as the ISC. This situation includes the problem that Mr. Richardson, her son, was providing services to at least one client which were not authorized as part of that client's services plan (transportation to the movies and other destinations being provided, when dental hygiene training was the service authorized in the support plan). Through the certification process and upon certification, the Petitioner had been provided complete notice of the HRS Medicaid Waiver policy concerning billing and documentation requirements. This was part of the "assurances" on the application form and in the agreement entered into between the Petitioner and HRS. That application, the assurances contained therein, and the provisions of the agreement constituted notice to the Petitioner that failure to comply with the Medicaid Waiver policy embodied in the proposed rule and Policy Clarifications 1-8, as described in detail in Mr. Trejo's testimony, were grounds for termination, as was the fraudulent billing and documentation of records concerning clients. HRS, at no time, treated the Petitioner differently from any other ISC similarly situated, with respect to the Medicaid Waiver Program and policy. In fact, Ms. Brown and Ms. Hall spent a disportionate amount of time instructing and attempting to assist and support the Petitioner in the performance of her services, in proper record-keeping and computer billing methods. In view of the Petitioner's failure to conform to the policies described above, in terms of the billing and documentation violations referenced in the above Findings of Fact, and her failure to propose a meaningful plan of corrective action with regard thereto, HRS terminated her certification as an ISC on or about January 4, 1995.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is RECOMMENDED that a Final Order be entered by the Department of Health and Rehabilitative Services revoking the certification of Brenda J. Ogden as an Independent Support Coordinator, effective January 4, 1995. DONE AND ENTERED this 23rd day of January, 1996, in Tallahassee, Florida. P. MICHAEL RUFF, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of January, 1996. APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-1284 Petitioner's Proposed Findings of Fact 1-4. Accepted. 5. Accepted, but not itself materially dispositive of the issues presented. 6-10. Accepted. Accepted, but immaterial. Accepted. Rejected, as contrary to the greater weight of the competent, credible testimony and evidence. Accepted, in a general sense, but not materially dispositive. These reasons were not the reasons for the Petitioner's violations of policies and her agreement. Rejected, as contrary to the weight of the evidence based upon the Hearing Officer's determinations of the candor and credibility of witnesses. Even though the Petitioner had some difficulties learning to use the relevant computer system, these were not shown to be the reasons for the improprieties in billing and record-keeping. Accepted. Accepted, except as to the date, but not materially dispositive. Accepted, but not materially dispositive. The referenced date should be November 22, 1994. Accepted. 20-21. Accepted, but not materially dispositive. Accepted, only in terms of the dates she made the written response referenced. It is not found to be a detailed plan of corrective action/support coordination, and this context of the proposed finding is rejected as subordinate to the Hearing Officer's findings of fact on this subject matter. Accepted, but not itself materially dispositive. Accepted, but not materially dispositive, and subordinate to the Hearing Officer's findings of fact on this subject matter. Accepted, but not materially dispositive, and subordinate to the Hearing Officer's findings of fact on this subject matter. Rejected, as constituting a conclusion of law and not a proposed finding of fact and as legally incorrect. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter and as not materially dispositive. Even if she never altered client records, that does not obviate the violations found. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter. Accepted, but not itself materially dispositive. Accepted, in part, but only as to the date the formal written notification of the overpayment was accorded the Petitioner. She had earlier been informed verbally of the problem. Even if she were terminated 28 days instead of 30 days after notification of the overpayment, the Petitioner never before then or since has made any effort of record in this proceeding to make reimbursement for the overpayments. The other reasons referenced and found above are adequate cause for termination, in any event. 31-32. Rejected, as immaterial. The other ISC's referenced in these proposed findings of fact were in different circumstances and differently situated in terms of overpayment/overbilling problems involved (for instance, repayments were made). 33. Rejected, as not in accord with the competent, credible evidence. The fact was that Mr. Sutton determined that there was insufficient evidence to go forward with prosecution in his opinion; however, the matter was referred to the Office of the State Attorney, who, in fact, elected not to institute prosecution for unknown, discretionary reasons. 34-35. Accepted, but immaterial. Respondent's Proposed Findings of Fact 1-28. Accepted, but subordinate to the Hearing Officer's findings of fact on this subject matter. COPIES FURNISHED: Anthony L. Bajoczky, Esquire Scott A. Snavely, Esquire BAJOCZKY & FOURNIER 125 North Franklin Boulevard Tallahassee, FL 32301 Tommy E. Roberts, Jr., Esquire Charles A. Finkel, Esquire Department of Health and Rehabilitative Services 2639 North Monroe Street, Suite 252-A Tallahassee, FL 32399-2949 Robert L. Powell, Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, FL 32399-0700 Kim Tucker General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, FL 32399-0700
Conclusions Having reviewed the administrative complaint dated May 21, 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: 1. 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. 2. Respondent shall pay an administrative fine in the amount of $17,500.00, of which $3,038.29 constitutes the reimbursement of costs for actual litigation expenses. The administrative fine is due and payable within thirty (30) days of the date of rendition of this Order. The payment shall not be considered an administrative sanction under Section 400.471(10), Florida Statutes (2009). 3. 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 4. Unpaid amounts pursuant to this Order will be subject to statutory interest and may be collected by all methods legally available. 5. Each party shall! bear its own costs and attorney’s fees. 6. The above-styled case is hereby closed. DONE and ORDERED this Y day of MOLLY, 2010, in Tallahassee, Leon County, Florida. Agency for Health Care Administration 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: Christopher Parrella, ].D., CHC, CPC | Lourdes A. Naranjo, Esq. The Health Law Offices of Assistant General Counsel Anthony C. Vitale, P.A. Agency for Health Care 2333 Brickell Avenue Administration Suite A-1 8350 N. W. 52 Terrace — Suite 103 Miami, Florida 33129 : Miami, Florida 33166 (U. S. Mail) (Interoffice Mail) Finance & Accounting . Stuart M. Lerner Agency for Health Care Administrative Law Judge Administration Division of Administrative Hearings 2727 Mahan Drive, MS #14 1230 Apalachee Parkway Tallahassee, Florida 32308 Tallahassee, Florida 32399 (Interoffice Mail) (U.S. 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 _{f ” day of Petcas ye , 2010. Richard J. Shoop Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Building #3 Tallahassee, Florida 32308 (850) 922-5873
