Conclusions THE PARTIES resolved all disputed issues and executed a Settlement Agreement. The parties are directed to comply with the terms of the attached settlement agreement. Based on the foregoing, this file is CLOSED. DONE and ORDERED on this the QIhay of Qucenater > 201\, in Tallahassee, Florida. bd WM fer ELIZABETH DUDEK, SECRETARY Agency for Health Care Administration 1 Filed January 5, 2012 11:44 AM Division of Administrative Hearings A PARTY WHO IS ADVERSELY AFFECTED BY THIS FINAL ORDER IS ENTITLED TO A JUDICIAL REVIEW WHICH SHALL BE INSTITUTED BY FILING ONE COPY OF A NOTICE OF APPEAL WITH THE AGENCY CLERK OF AHCA, AND A SECOND COPY ALONG WITH FILING FEE AS PRESCRIBED BY LAW, WITH THE DISTRICT COURT OF APPEAL IN THE APPELLATE DISTRICT WHERE THE AGENCY MAINTAINS ITS HEADQUARTERS OR WHERE A PARTY RESIDES. REVIEW PROCEEDINGS SHALL BE CONDUCTED IN ACCORDANCE WITH THE FLORIDA APPELLATE RULES. THE NOTICE OF APPEAL MUST BE FILED WITHIN 30 DAYS OF RENDITION OF THE ORDER TO BE REVIEWED. Copies furnished to: L. William Porter Assistant General Counsel Agency for Health Care Administration Office of the General Counsel (Interoffice) Carlos Muniz Deputy Attorney General/Chief of Staff Office of the Attorney General Department of Legal Affairs (electronic mail) Michael Verbitsky, President 2024 Hollywood Boulevard Hollywood, Florida 33020 (U.S. Mail) Eleanor M. Hunter Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 Mike Blackburn, Bureau Chief, Medicaid Program Integrity Finance and Accounting Health Quality Assurance Department of Health CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished to the above named addressees by U.S. Mail, Laserfiche or electronic mail on this the fay of denne 2012. Agency Clerk State of Florida Agency for Health Care Administration 2727 Mahan Drive, MS #3 Tallahassee, Florida 32308-5403 (850) 412-3630/FAX (850) 921-0158 SETTLEMENT AGREEMENT THIS SETTLEMENT AGREEMENT (hereinafter referred to as “ Agreement”) is entered between the STATE OF FLORIDA, acting through its MEDICAID FRAUD CONTROL UNIT (hereinafter referred to as “MFCU”) of the OFFICE OF THE ATTORNEY GENERAL (hereinafter referred to as “OAG”) and WELLSCRIPTS, LLC (hereinafter referred to as “WELLSCRIPTS”) and MICHAEL VERBITSKY (bereinafter referred to as “VERBITSKY”), acting through its authorized representative. As a preamble to this Agreement, the MFCU, WELLSCRIPTS, and VERBITSKY agree to the following: A. “WELLSCRIPTS,” “VERBITSKY,” and “Parties” Defined: As used in this Agreement, the term “WELLSCRIPTS” is defined as WELLSCRIPTS, LLC, an inactive Florida for Limited Liability Company, its current and former parent entities, predecessors, successors, and assigns, including the agents, employees, officers, and directors, and independent contractors of WELLSCRIPTS, their successors and assigns, to the extent such agerits and independent contractors were acting for or on behalf of WELLSCRIPTS. WELLSCRIPTS was dissolved on September 26, 2008. VERBITSKY was the president and owner of WELLSCRIPTS during the Covered Conduct. Collectively, WELLSCRIPTS, VERBITSKY, and MFCU are the “Parties,” as used herein. B. “Investigation” of the “Covered Conduct”: The MFCU conducted an investigation of WELLSCRIPTS concerning WELLSCRIPTS’ alleged improper claims for and receipt of Medicaid payments from Florida’s Agency for Health Care Administration (hereinafter Page 1 of 11 referred to as “AHCA”). As used herein, the term “Investigation” shall mean MFCU’s investigation into WELLSCRIPTS. As a result of this investigation, the MFCU alleges that WELLSCRIPTS improperly billed the Florida Medicaid program $346,887.88 for certain drugs. This calculation was based on an audit of the top seven (7) drugs billed by Wellscripts. Also, the MFCU alleges that WELLSCRIPTS was improperly reimbursed for medications billed to two assisted living facilities totaling $17,139.16. WELLSCRIPTS submitted these claims through Medicaid Provider Number 0268208-00. The MFCU alleges that the total amount improperly billed by WELLSCRIPTS to Florida’s Medicaid program is $364,027.04. This MFCU-investigated conduct is the “Covered Conduct,” as used hereafter. The “Covered Conduct” does not include any conduct or potential claims that WELLSCRIPTS may have administratively against AHCA or any other entity for billed services which have not yet been paid that are outside the scope and/or time frame of the conduct detailed above. . MFCU’s Claims: MFCU contends it has certain statutory and common-law civil claims against WELLSCRIPTS as a result of the Covered Conduct. . Motivation to Resolve Claims: The Parties desire to conclude the aforementioned Investigation into the Covered Conduct and to settle and compromise on all claims, including, but not limited to, any claims pursuant to Sections 68.081 through 68.092 Florida Statutes, against WELLSCRIPTS arising out of the Investigation that the MFCU either asserted or maintained against WELLSCRIPTS or could have asserted or maintained against WELLSCRIPTS. The Parties enter into this full and final Agreement Page 2 of 11 to avoid the delay, uncertainty, inconvenience, and expense of protracted litigation of these claims. NOW, THEREFORE, in consideration of the premises and the mutual promises, agreements, obligations, and covenants set forth, and for good and valuable consideration as stated herein, the Parties agree as follows: 1, Settlement Terms: a. Settlement Amount: WELLSCRIPTS’ relinquishment of all rights and interests in the monies previously seized from Bank of America Account Number 003738055311 totaling $219,193.66 plus interest. The monies previously seized are currently being held in the OAG’s Trust Account. b. Return of Funds Seized: The OAG agrees to abandon the claim for forfeiture of the seized currency from Bank of America Account Numbers 003671024535 and 003672757995 in the names of Michael Verbitsky and Ricki R. Kaneti totaling $22,253.27 and will return the funds to Michael Verbitsky and Ricki R. Kaneti. The funds will be returned to Michael Verbitsky and Ricki R. Kaneti’s counsel via check to Nason, Yeager, Gerson, White & Lioce P.A.’s trust account at Sabadell United Bank, Account Number 0215000258. c, Upon the signing of this Agreement by both parties, the MFCU will transfer to AHCA, $219,193.66 plus interest to satisfy the Medicaid program loss. d. Upon the signing of this Agreement by both parties, OAG agrees to voluntarily dismiss the Civil Action case number 2010 CA 015157 (09), which was filed in the Seventeenth Judicial Circuit of Broward County, FL on April 6, 2010. OAG also agrees to voluntarily dismiss the Civil Forfeiture Action case number 2007 Page 3 of 11 CA 000765 (14), which was filed in the Seventeenth Judicial Circuit of Broward County, FL on January 11, 2007. 2. MFCU’s Release: Subject to the exceptions in Paragraph 3 (“Scope of Release”) and Paragraph 4 (“Bankruptcy Provisions”), upon full execution of this Agreement by all Parties and WELLSCRIPTS’ simultaneous remittance to the MFCU of the settlement amount as provided in Paragraph 1, the MFCU agrees to release WELLSCRIPTS from any and all civil and administrative actions, causes of action, obligations, liabilities, claims, or demands for compensatory, special, punitive, exemplary, or treble damages, or demand whatsoever in law or in equity, which were asserted or maintained or could have been asserted or maintained, against WELLSCRIPTS based upon or arising out of the Investigation of the Covered Conduct specifically as defined in Preamble Paragraph B. However, the Agreement will have no actual or intended effect until executed by MFCU’s authorized representative. In the event WELLSCRIPTS makes payment of the Settlement Amount prior to full execution of this Agreement, MFCU may deposit the Settlement Amount in an escrow account pending execution and such deposit shall not be construed as acceptance of the terms of this Agreement. 3. Scope of Release: Notwithstanding any term of this Agreement, the following are specifically reserved and excluded from the scope and terms of this Agreement as to any entity or person, including WELLSCRIPTS: a. MFCU, AHCA, or other appropriate law enforcement or regulatory agency or private party suit against WELLSCRIPTS or any predecessor, successor, director, officer, employee, assign or agent of WELLSCRIPTS for: Page 4 of 11 i. Any administrative or civil cause of action for any violation of law arising out of the covered conduct and not encompassed within the Investigation as defined in Preamble Paragraph B; or ii. Any criminal liability. Accordingly, WELLSCRIPTS agrees not to assert the defenses of res judicata, collateral estoppel, excessive fines, or double jeopardy as to actions described in subparagraphs (a)(1) and (a)(2) of this Paragraph 3. b. Any actions or matters involving the exclusion of WELLSCRIPTS or other entities or persons from Federal or State, including Florida, health care programs; c. Any administrative action(s) relating to professional licensure or adjudication of claims by persons or entities who are not parties to this Agreement; d. Any claims based upon such obligations as are created by this Agreement, e. Any liability to the State of Florida, including MFCU and OAG, for any conduct other than the Covered Conduct; f. Any express or implied warranty claims or other claims for defective or deficient products or services, including quality of goods and services, provided by WELLSCRIPTS; g. Any claims for personal injury or property damage or for other consequential | damages arising from the Covered Conduct; ! h. Any claims based on a failure to deliver items or services due; and i. Any action against a healthcare professional, including WELLSCRIPTS and any of its employees or agents, for practicing without the necessary license or certification. Page S$ of 11 . Bankruptcy Provisions: The Parties warrant and agree to the following bankruptcy provisions: a. WELLSCRIPTS warran ts that it has reviewed its own financial position and WELLSCRIPTS is solvent within the meaning of Title 11 of the United States Code §§547(b)(3) and 548 (a)(1)(B)Gi)@, and will remain solvent following its payment to the MFCU of the Settlement Amount. _ No Admission of Fault: This Agreement, any exhibit or document referenced herein, any action taken to reach, effectuate, or further this Agreement, and the terms set forth herein, shall not be construed as, or used as, an admission by or against any of the Parties of any fault, wrongdoing, or liability whatsoever. Entering into or carrying out this Agreement, or any negotiations or proceedings related thereto, shall not in any event be construed as, or deemed to be evidence of, an admission or concession by any of the Parties, or to be a waiver of any applicable defense. However, with the exception of certain bankruptcy provisions in Paragraph 4, nothing in this Agreement, including this Paragraph 5, shall be construed to limit or to restrict WELLSCRIPTS’ right to utilize this Agreement, or payments made hereunder, to assert and maintain the defenses of res judicata, collateral estoppel, payment, compromise and settlement, accord and satisfaction, or any legal or equitable defenses in any pending or future legal or administrative action or proceeding arising out of the specific subject matter of the Investigation, as defined in Preamble Paragraph B. WELLSCRIPTS does not admit MFCU’s contentions that arise from its Investigation of the Covered Conduct, set forth in Preamble Paragraph B, and specifically denies WELLSCRIPTS knowingly submitted any claims in Page 6 of 11 violation of state or federal law. This Agreement, and the payment, promises, and release provided hereunder, are not and shall not be construed to be an admission of liability or any acknowledgment of the validity of any of the claims that were or that could have been asserted by the MFCU against WELLSCRIPTS, arising out of the: Investigation, which liability or validity is hereby expressly denied by WELLSCRIPTS. . Denied Medical Claims: The Settlement Amount shall not be decreased as a result of the denial of claims for payment now being withheld from payment by AHCA or its intermediary agents related to the Covered Conduct. WELLSCRIPTS agrees not to resubmit to Medicare, Medicaid, or any State or Federal payer any previously denied claims related to the Covered Conduct and agrees not to appeal any such denials of claims. However, WELLSCRIPTS reserves the right to appeal and/or resubmit previously denied claims or seek administrative remedies with AHCA of those claims which are outside the scope of the Covered Conduct. . Complete Resolution: The Parties have agreed that the terms of this Agreement constitute a complete resolution and settlement of the claims asserted against WELLSCRIPTS by the MFCU, as well as the claims that could have been asserted against WELLSCRIPTS by the MFCU arising out of or as a result of the Investigation described in Preamble Paragraph B. Upon WELLSCRIPTS’ continued fulfillment of its obligations under this Agreement, and relinquishment of all rights and interests in the monies seized provided in Paragraph 1, the Investigation, as defined in Preamble Paragraph B, shall be concluded. Page 7 of 11 10. il. 12. 13, 14, Survival: This Agreement shal! be binding upon and inure to the benefit of the Parties and their successors, transferees, heirs, and assigns. Merger: This Agreement constitutes the entire agreement between the Parties with regard to the subject matter contained herein and all prior negotiations and understandings between the Parties shall be deemed merged into this Agreement. No External Representations: No representations, warranties, or inducements have been made by the MFCU concerning this Agreement other than those representations, warranties, and covenants contained in this Agreement. No Oral Modifications or Waivers: No waiver, modification, or amendment of the terms of this Agreement shall be valid or binding unless in writing, signed by the Party to be charged, and then only to the extent set forth in such written waiver, modification, or amendment. Failure of Strict Performance: Any failure by any Party to the Agreement to insist upon the strict performance by any other Party of any of the provisions of this Agreement shall not be deemed a waiver of any of the provisions of this Agreement, and such Party, notwithstanding such failure, shall have the right thereafter to insist upon the specific performance of any and all of the provisions of this Agreement. Choice of Law: This Agreement shall be governed by, and construed and enforced in accordance with the laws of the State of Florida, without regard to its conflict of law principles. Release of Florida; WELLSCRIPTS fully and finally releases the MFCU, the OAG, and the State of Florida, its agencies, employees, servants, and agents from any claims (including attorney’s fees and costs of any kind) that WELLSCRIPTS has Page 8 of 11 15. 16. 17. 18. asserted, could have asserted, or may assert in the future against the MEFCU, the OAG, or the State of Florida, its agencies, employees, and agents arising out of or resulting from the Investigation as defined in Preamble Paragraph B. Contract Beneficiaries: This Agreement is intended to be for the benefit of the Parties only and by this instrument the Parties do not release any claims against any other person or entity, except to the extent provided in the immediately preceding Paragraph 14. Contribution from Medical Beneficiaries: WELLSCRIPTS waives and shall not seek payment for any of the health care billings covered by this Agreement from any health care beneficiaries or their parents, sponsors, legally responsible individuals, or third party payers based upon the claims defined as Covered Conduct. Litigation Costs: With exception of investigative costs and litigation costs, which may be specifically provided for in Paragraph 1, each party to this Agreement shall bear its own legal and other costs incurred in connection with this matter, including the preparation and performance of this Agreement. Unenforceable Clause: Neither Party shall challenge the legality or enforceability of this Agreement. If any clause, provision, or section of this Agreement shall, for any reason, be held illegal, invalid, or unenforceable, such illegality, invalidity, or unenforceability shall not affect any other clause, provision, or section of this Agreement, and this Agreement shall be construed and enforced as if such illegal, invalid, or unenforceable clause, section, or other provision had not been contained herein. Page 9 of 11 19. 20. 21. 22. 23. 24. 25. Arm’s Length Negotiations: The Parties executed this Agreement after arm’s length negotiations and it reflects the conclusion of the Parties that this Agreement is in the best interest of all the Parties. Each Party is satisfied with the Agreement’s language and construction, and therefore the interpretation of the terms of this Agreement shall not be construed against any of the Parties. Each Party represents that this Agreement is freely and voluntarily entered into without any degree of duress or compulsion whatsoever. Authority to Execute Agreement: The undersigned individuals signing this Agreement on behalf of WELLSCRIPTS represent and warrant that they are authorized to execute this Agreement. The undersigned MFCU signatories represent that they are signing this Agreement in their official capacities and that they are authorized to execute this Agreement. Effective Date: This Agreement is effective on the date of signature of the last signatory to the Agreement (hereinafter referred to as the “Effective Date”). Non-Punitive Effect: The Parties agree that this Settlement is not punitive in purpose or effect. IRS Characterization: Nothing in this Agreement constitutes an agreement or representation characterizing the Settlement Amount for the purposes of the Internal Revenue Code, Title 26 of the United States Code. Public Disclosure: All Parties consent to the MFCU’s disclosure of this Agreement, and information about this Agreement, to the public. Introductory Signals: The introductory paragraph signals are for subject identification only and do not affect the meaning or become part of the Agreement. Page 10 of 11 WELLSCRIPTS, LLC FOR FLORIDA'S OFFICE OF THE ATTORNEY GENERAL, DEPARTMENT OF LEGAL AFFAIRS PAM BONDI ATTORNEY GENERAL AY C. A oa * 3 ™ Carlos Muniz “ ie . J f- Deputy Attorney General/Chief of Staff Position: f , eal 4h vali Date: Date: Page 1! of Il (Page 1 of 48) POROA AGENCY FOR HESLIA CARE ADMINSTRATION: JEB BUSH, GOVERNOR CHRISTA CALAMAS, SECRETARY CERTIFIED MAIL. — 91 7108 2133 3932 8581 4299 September 7, 2006 Provider No: 026820800 License No: PH20057 Mr. Michael Verbitsky Wellscripts LLC 2024 Hollywood Boulevard Hollywood, Florida 33020 In Reply Refer to FINAL AUDIT REPORT CL No. 06-4308-000/P/AAE Dear Mr. Verbitsky: The Agency for Health Care Administration (the Agency), Bureau of Medicaid Program Integrity, has completed a review of claims for Medicaid reimbursement for dates of service during the period of December 1, 2004 through November 30, 2005. A preliminary audit report dated July 25, 2006 was sent to you indicating that we had determined you were overpaid $347,963.94. Based upon a review of all documentation submitted, we have determined that you were overpaid $347,963.94 for services that in whole or in part are not covered by Medicaid. A fine of $5,000.00 has been applied. The total amount due is $352,963.94. . Be advised of the following: (1) Pursuant to Section 409.913(23)(a), Florida Statutes (F.S.), the Agency is entitled to recover all investigative, legal, and expert witness costs. (2) In accordance with Sections 409.913(15), (16), and (17), F.S., and Rule 59G-9.070, Florida Administrative Code (F.A.C.), the Agency shall apply sanctions for violations of federal and state laws, including Medicaid policy. This letter shall serve as notice of the following sanction(s): ° A fine of $5,000.00 for violation of Rule Section 59G-9.070(7)(n), F.A.C. 2727 Mahan Drive « Mail Stop #4 Vallahassee, FL 32308 Visit AHCA online at www fdhe. state flus APPENDIX A (Page 2 of 48) Wellseripts LLC Page 2 of 4 This review and the determination of Overpayment were made in accordance with the provisions of Section 409.913, F.S. In determining the appropriateness of Medicaid payment pursuant to Medicaid policy, the Medicaid program utilizes procedure codes, descriptions, policies, limitations and requirements found in the Medicaid provider handbooks and Section 409.913, F.S, In applying for Medicaid reimbursement, providers are required to follow the guidelines set forth in the applicable tules and Medicaid fee schedules, as promulgated in the Medicaid policy handbooks, billing bulletins, and the Medicaid provider agreement. Medicaid cannot pay for services that do not meet these guidelines. Below is a discussion of the particular guidelines related to the review of your claims, and an explanation of why these claims do not meet Medicaid requirements. The audit work Papers are attached, listing the claims that are affected by this determination. REVIEW DETERMINATION(S) The audit included a comparison of your lawful documented product acquisitions with your paid Medicaid claims. Only product acquisitions from Florida licensed wholesalers were included in the review. The audit period for this review was from December 1, 2004 through November 30, 2005. The drug quantity paid for by Medicaid, in some instances, exceeded the quantity available to dispense to Medicaid recipients. This review identified an overpayment of $347,963.94. Enclosed for this revicw are the overpayment calculations which include the summary sheet(s), the paid claims data, and acquisition data. If you are currently involved in a bankruptcy, you should notify your attorney immediately and provide a copy of this letter for them. Please advise your attorney that we nced the following information immediately: (1) the date of filing of the bankruptcy petition; (2) the case number; (3) the court name and the division in which the petition was filed (e.g., Northern District of Florida, Tallahassee Division). If you are not in bankruptcy and you concur with our findings, remit by certified check in the amount of $352,963.94, which includes the Overpayment amount as well as any fines imposed. The check must be payable to the Florida Agency for Health Care Administration. Questions regarding procedures for submitting payment should be directed to Medicaid Accounts Receivable, (850) 488- 5869. ‘To ensure proper credit, be certain you legibly record on your check your Medicaid provider number and the C.I. number listed on the first page of this audit report. Please mail payment to: Agency for Health Care Administration Medicaid Accounts Receivable P.O. Box 13749 Tallahassee, Florida 32317-3749 If payment is not received, or arranged for, within 30 days of receipt of this letter, the Agency may withhold Medicaid payments in accordance with the provisions of Chapter 409.913(27), F.S. Furthermore, pursuant to Sections 409.913(25) and 409.913(15), F.S., failure to pay in full, or enter into and abide by the terms of any repayment schedule set forth by the Agency may result in termination from the Medicaid Program. Likewise, failure to comply with all sanctions applied or due dates may result in additional sanctions being imposed. (Page 3 of 48) Wellscripts LLC Page 3 of 4 You have the right to request a formal or informal hearing pursuant to Section 120.569, F.S. Ifa request for a formal hearing is made, the petition must be made in compliance with Section 28- 106.201, F.A.C. and mediation may be available. Ifa request for an informal hearing is made, the petition must be made in compliance with rule Section 28-106.301, F.A.C. Additionally, you are hereby informed that if'a request for a hearing is made, the petition must be received by the Agency within twenty-one (21) days of receipt of this letter. For more information regarding your hearing and mediation rights, please see the attached Notice of Administrative Hearing and Mediation Rights. Any questions you may have about this matter should be directed to: Arlenc Elliott, Senior Pharmacist, Agency for Health Care Administration, Medicaid Program Integrity, 2727 Mahan Drive, Mail Stop #6, Tallahassee, Florida 32308-5403, telephone (850) 921-1802, facsimile (850) 410-1972, Sincerely, @. katy D. Kenneth Yon AHCA Administrator aae Enclosure(s) cc: Christopher Parrella, J.D., CHC Health Law Offices of Anthony C. Vitale, P.A. 799 Brickell Plaza Suite 700 Miami, Florida 33131 Medicaid Accounts Receivable Arlene Elliott (Page 4 of 48) Wellsenpts 110 Page suf NOTICE OF ADMINISTRATIVE HEARING AND MEDIATION RIGHTS You have the tight to request an administrative hearing pursuant to Sections 120.569 and 120.57, Florida Statutes. If you disagree with the facts stated in the foregoing Final Audit Report (hereinafter FAR), you may request a formal administrative hearing pursuant to Section 120.57{L), Florida Statutes. If you do not dispute the facts stated in the FAR, but believe there are additional .feasons to grant the relief you seek, you may request an informal administrative hearing pursuant to Section 120.57(2), Florida Statutes. Additionally, pursuant to Section 120.573, Florida Statutes, mediation may be available if you have chosen a formal administrative hearing, as discussed more fully below. The wnitten request for an administrative hearing must conform to the requirements of either Rule 28-106.201(2) or Rule 28-106.301(2), Florida Administrative Code, and must be received by the Assistant Bureau Chief by 5:00 P.M. no later than 21 days after you received the FAR. The address for filing the written request for an administrative hearing is: Assistant Bureau Chief Medicaid Program Integrity Agency for Health Care Administration 2727 Mahan Drive, Mail Stop #6 Tallahassee, Florida 32308 The request must be legible, on 8 % by 11-inch white paper, and contain: 1. Your name, address, telephone number, any Agency identifying number on the FAR, if known, and name, address, and telephone number of your representative, if any; 2. An explanation of how your substantial intcrests will be affected by the action described in the FAR; 3. A statement of when and how you received the F. AR; 4. Fora request for formal hearing, a statement of all disputed issues of material fact; 5. Fora request for formal hearing, a concise statement of the ultimate facts alleged, as well as the rules and statutes which entitle you to Telief; : 6. Fora request for formal hearing, whether you request mediation, if it is available; 7. For a request for informal hearing, what bases support an adjustment to the amount owed to the Agency; and 8. A demand for relief. A formal hearing will be held if there are disputed issues of material fact. Additionally, mediation may be available in conjunction with a formal hearing. Mediation is a way to use a neutral third party to assist the parties in a legal or administrative proceeding to reach a settlement of their case. If you and the Agency agree to mediation, it does not mean that you give up the right to a hearing. Rather, you and the Agency will try to settle your case first with mediation. Tf you request mediation, and the Agency agrees to it, you will be contacted by the Agency to set up a time for the mediation and to enter into a mediation agreement. If a mediation agreement is not reached within 10 days following the request for mediation, the matter -will proceed without mediation. The mediation must be concluded within 60 days of having entered into the agreement, unless you and the Agency agree to a different time period. The mediation agreement between you and the Agency will include provisions for sclecting the mediator, the allocation of costs and fees associated with the mediation, and the confidentiality of discussions and documents involved in the mediation. Mediators charge hourly fees that must be shared equally by you and the Agency. (fa 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 sct forth in the FAR shall be conclusive and final. ‘(s)ezis oBeyoed ajqeyene ye pue aava6 pue aweu puelq sapnjour b6'e96'sPe$ *WLOL BL 'E28'SL 98°81$ €20r 6rr'9 0S0'8 zt08°0 tLO'EL SLv'Ol LZ O2S'261$ (eucezueio) sqey Bugg exaidAZ SLEPPLE Sore L022 seg'9 ogs'Z £2180 Zrg'8 06 820'9Z1$ {eudezueo) sqe; Bug, exaidAZ| 9B LAL'P ores bee 0oL's 62990 6822'S 249961 'bS$ (sudezueio) sqey Bug, exaidkz 08 092'2 cL tS StOL O8r'ez 21960 22}€z__|90'Ss0'e9s 3H eurevas) sqe) Bugg! yoioz 09'265'6 rAPaS eer OLZel 0gg'eL 44560 EvS'bl 99 PEZ'POLS piewns audenand) sqe; BUDE Janbosag 9e'9S2'9S orcs 4S€01_ |SZ0'0€ o0g'ze S2z6'0 Zev'or [2+ B68'LZZ$ _frewng oudenano) sei Bwiggz janbolag Se Se'9 Sy et 284'9 oge's 6260 066'9 $8'940'6S$ (euopuadsyy) sqe) Busy epsadsiy 09'2S6'02 ge S$ 6e0'2% 086'22 9960 6r6'0E [42 p8t'9919 (suopuadsiy) sqe} Buz jepradsiy 092966 Ov'rs 6ziz_ [roz'6z —ifoog’ce _—| oes le |zeziz Orig (aozeidesuey) sdeo BWOE poenaig SP 0zb's tL 6$ S6S 2£8'% zZy'e€ [bE SPO'LES Gaevoiny) sdeo BUIQO| JON ¥Z819'8r es pes gor vel ZPS'L GBOS7'ES$ — Jopuadorey) jw/Bwi9g| “9aq jopuedojeH 8b'002'8 LL vt zal bee's esZ'2 79'£S0'2€$ {idH auopiseidiz) sdeo Buigg Uopoad 8p 626'8L Lees g8cSe gsg'ir 26260 2££6'€9 QPL'0S —JOO'PZL'LILS |v xaeudienq) sqey u009 D3 aioxedaq SE€7Z0'7Z £2 4$ Seal S2O'Zb 0f760 78202 OZL'SL fer BZ0'E7$ —_|Nxoodiena) sqey Buiggz 93 ajoyedag 00'r22'6z GO'rLS 0802 zes'y £2860 269'9 z19'9 GLZ16'76$ OO Z'Zb St els 768 Oze'L S960 z9e'% ZbeZ $5 27S Le$ 2 99S'b 80'OL$ esr agz'e '69E6 0 €96'€ Slee $8 sey Le$ aBieyssaag uunpied | eBeyous | saseyoing | paseysing [E30], Adeueyd | presipay | preaipay Aq yyBuajs ; ewey 6nug eyo, aBeiaay |aseysing| payerolg | swup je}o1 | yo yese | Aq-dsiq | fq preg | pied sseyog —___ | i syun jeiol| sun + SHNSEY SISh|eUY ad/OAU| payesolg AVV/d/000-80¢t-90 $002 ‘Of JaqUIaAON - ¥00Z ‘| aquiacagq 008079920 O77 sidysasyay, ON TO [POlag MalAay USQWAN JaplAcig ‘OWEN JapiAoig (gp jo g abed) OZL M3IABY SSIOANT (4 L L + L L b t (4 5 L 1 b t L L b cA z L cf t L (4 (4 z [4 b L L c L t t b L t L L cA L I id L b L L L t Z SVL OWS! AsNiav Savi OWS! AsmMeY S8Vl OWS! ASIIEV SBVL OWS! ASINBV SEVL OWS, ASNIBv Sevl OWSE AsNaVv Savi OWS?) ASINGV SaVl OWSL ASE SEV1L OWSL ASMIGV SVL OWS! AsNAV SaV1l OWS! AsiUSEV Seavl Owst Asay Savi OWS! AsITIAV SVL OWS! AANav SaVL OWS! ASITIAV SEV OWS! AZIeV Savi OWS! Asay S8VL OWS) ASNISV SVL OWS Asay SVL OWS AsIeV SEVi OWS! AANISY SEV OWS) ASIIGV Savi OWst Asniav Savi OWS! AsMeav Savi OWS! Asay SaVL OWS! Asay SAV OWS? ASIIAV SAV OWS! AXNIEV SAV. OWS! AdNav S8V1 OWS! ASITIEV SaVl OWS! AANIEV Savl OWS! Asay SVL SIWNSL Adiav Sv. OWS) AsIEV Sevl OWS! AseV SVL OWSL AMIS sav OWS! AdTmaV sav OWS! Asilav SaVL OWS! ASI Savi OWS! ASIEV Sav. OWS! ASIIaV SVL OWS AJigv SAVL OWS! ASNISV SVL OWS) AFMEV SEV OWS! AdTaVv S8V1 OWS! ASNISV Sevl OWS! ASITIEV Savi OWS! ASNIav Sav1 OWS! Asay av 206082 SLOL02 L8P969 Lesg69 S86189 060E29 06999 ZLEGSS poRsssg bobver9o 6249829 6921429 682b29 89LLZ9 tZ-209 SCELIG cOSOby 289606 b6LS6r6 40L02E SOLOLE bZZ0vE 6PL6ZL 66LbcL 88956 BSbcSr6 tSL6Eb6 8210666 LOvr2e6 vLS6P86 bye 2956 CLBbbS6 SOerhSE E€660ES6 SOEB0ES 90E60E6 6SZE626 4SZE6CE LSLESZE O8Lzezé b8L2ec6 S6LELLE 89rBE06 8E2SZ06 er9SZ06 9r8le6e L6Lp968 6er2cse 2065228 So0e/z1/8 SOOZ/Er8 sooz/ee soocizig SOOZ/L/8 SOOZ/62/L SOOZ/B2/2 soogLese SOOC/L2/L so0z/sere SOOC/S2L S00z/e2ie SO0e¢zzz SOOz/eZeit SOOT EL SDOZ/L EL SOOZ/0E/9 sooze7s SO00Z/Z7/9 Sodz/ee/9 so0z/ez9 s00z/0z/9 SO0Z/L/9 soozse/s Sooz/eers SOOzETz/s SOOC/ELIS SOOZ/OL/S SOOZ Ziv SO0d/Sc/p sodese/e SOOZ/IEZ/E SOOC/ECIE SOOeZz/E gooe/s7e so0d/Se/e S00c/re/e SOO0e¢/P2/e SOC Zz SO0z/ez/z SOOZLLIZ SO0z/v/z SOO0c/22/L So0e/se/t soozeert SOO?/Le/L SOOC/E L/L SOOc/r/L poozecet leurpseg IEUIPIED leulped leulpses jeulprea jeuipses, jeulpleg reulpses jeulpieg IEUIPIED leuipseg leuIpyeg leUIPIeED IEUIPIED leulpses IEUIPJED feulpies on8g oo}1eg leulpse jeuipses jeulpseg reuipies jeulpieg [BUIPIED oo|jag ooi9g reulpies jeulpseg leurpreg feUIpIED reuipreg, jeulpses jeuped FEUIPIED eulpseg jeurpeg jeulpseg eulpseo, jeuipeg eulpled UIPIED eulpleg feuipes, feUlpueD BUIPIeED reUIpIED {EUIDJED leUlpleD leUIpleg OD807289Z0 # JapiAcig O11 SIduOS}aAA fan im tee (Page 7 of 48) Weliscnpts LLC INVOICE REVIEW Provider # 026820800 . Shipp Cardinal 8/15/2005 791058 1 Cardinal 8/25/2005 881593 ABILIFY 15MG TABS 1 30 30 Cardinal 8/25/2005 881597 ABILIFY 1S5MG TABS 2 30 60 Cardinal 8/29/2005 902946 ABILIFY 15MG TABS 1 30 30 Cardinal 8/29/2005 902948 ABILIFY 1SMG TABS 2 30 60 Cardinal 8/29/2005 902956 ABILIFY 15MG TABS 1 30 30 Cardinal 8/30/2005 912207 ABILIFY 15MG TABS 3 30 90 Cardinal 9/12/2005 999712 ABILIFY 15MG TABS 4 30 30 Cardinal 9/12/2005 $99717 ABILIFY 15MG TABS 4 30 30 Cardinal 9/14/2005 1024276 ABILIFY 15MG TABS 1 30 30 Cardinal 9/15/2005 1034422 ABILIFY 15MG TABS 1 30 30 Cardinal 9/26/2005 1108713 ABILIFY 1SMG TABS 1 30 30 Cardinal 9/28/2005 1108714 ABILIFY 15MG TABS 1 30 30 Cardinal 9/27/2005 1124704 ABILIFY 15MG TABS 2 30 60 Cardinal 9/27/2005 1124731 ABILIFY 15MG TABS 1 30 30 Cardinat 9/29/2005 1146258 ABILIFY 15MG TABS 1 30 30 Cardina 9/29/2005 1146262 ABILIFY 15MG TABS 3 30 90 Cardinal 10/5/2005 1192557 ABILIFY 15MG TABS 1 30 30 Cardina 10/10/2005 1217189 ABILIFY 15MG TABS 1 30 30 Cardina 10/14/2005 1257074 ABILIFY 15MG TABS 1 30 30 Cardinal 10/17/2005 1272799 ABILIFY 15MG TABS 1 30 30 Cardinal 10/19/2005 1298947 ABILIFY 15MG TABS 1 30. 30 Cardinal 10/27/2005 1353780 ABILIFY 15MG TABS 3 30 90 Cardinal 10/27/2005 1353777 ABILIFY 15MG TABS 4 30 30 Cardina 10/31/2005 1370709 ABILIFY 15MG TABS 2 30 60 Cardinal 10/31/2005 1370806 ABILIFY 15MG TABS 2 30 60 Cardinal 14/2/2005 1398925 ABILIFY 15MG TABS 1 30 30 Cardinal 11/11/2005 1480110 ABILIFY 15MG TABS 1 30 30 Cardinal 11/18/2005 1538685 ABILIFY 15MG TABS 1 30 30 Cardinal 11/22/2005 1556873 ABILIFY 15MG TABS 1 30 30 Cardinal 11/22/2005 1556878 ABILIFY 15SMG TABS 2 30 60 Cardinal 11/23/2005 1573553 ABILIFY 15MG TABS 3 30 90 Cardinal 11/25/2005 1584639 ABILIFY 15MG TABS 1 30 30 Cardinal 11/28/2005 1596696 ABILIFY 15MG TABS 3 30 90 116 3480 Cardinal 12/1/2004 8554332 ABILIFY 20MG TABS 2 30 60 Cardinal 1/19/2005 8964791 ABILIFY 20MG TABS 2 30 60 Cardinal 4/5/2005 9660446 ABILIFY 20MG TABS 1 30 30 Cardinal 4/8/2005 9701773 ABILIFY 20MG TABS 1 30 30 Cardinal 4/15/2005 9769768 ABILIFY 20MG TABS 1 30 30 Cardinat 4/22/2005 9834433 ABILIFY 20MG TABS 4 30 30 Cardinal 4/28/2005 9886981 ABILIFY 20MG TABS 1 30 30 Bellco §/3/2005 9424853 ABILIFY 20MG TABS 2 30 60 Belico §/13/2005 9439751 ABILIFY 20MG TABS 2 30 60 Cardinal 6/6/2005 214635 ABILIFY 20MG TABS 1 30 30 Cardinal 7/6I2005 = 480967 ABILIFY 20MG TABS 4 30 30 Cardinal 7/20/2005 596573 ABILIFY 20MG TABS 1 30 30 Cardinal 7/27/2005 = 655812 ABILIFY ZOMG TABS 1 30 30 Cardinal 7/28/2005 666494 ABILIFY 20MG TABS 1 30 30 (Page 8 of 48) Wellseripts LLC INVOICE REVIEW Prowider # 026820800 ABILIFY 20MG TABS Cardinai 4 Cardinal 8/3/2005 707078 = ABILIFY 20MG TABS 1 Cardinal 8/4/2005 716272 ABILIFY 20MG TABS 2 Cardinal 8/5/2005 727080 ABILIFY 20MG TABS 1 Cardinal 8/9/2005 752202 ABILIFY 20MG TABS 1 Cardinal 8/18/2005 823986 ABILIFY 20MG TABS 1 Cardinal 8/18/2005 823979 ABILIFY 20MG TABS 1 Cardinal 8/19/2005 837948 ABILIFY 20MG TABS 1 Cardinal 8/24/2005 869158 ABILIFY 20MG TABS 1 Cardinal 8/29/2005 902946 ABILIFY 20MG TABS 1 Cardinal 8/29/2005 902957 ABILIFY 20MG TABS 1 Cardinal 9/7/2005 968721 ABILIFY 20MG TABS 4 Cardinal 9/19/2005 1054543 ABILIFY 20MG TABS 4 Cardinal 9/20/2005 1067199 ABILIFY 20MG TABS 1 Cardinal 9/29/2005 1146260 ABILIFY 20MG TABS 2 Cardinal 10/6/2005 1202484 ABILIFY 20MG TABS 3 Cardinal 10/18/2005 1287251 ABILIFY 20MG TABS 1 Cardinal 10/20/2005 1311217 ABILIFY 20MG TABS 1 Cardinal 10/27/2005 1353780 ABILIFY 20MG TABS 1 Cardinal 11/7/2005 1437858 ABILIFY 20MG TABS 2 Cardinal 41/47/2005 1524077 ABILIFY 20MG TABS 1 47 1410 Cardinal 12/2/2004 8562529 ABILIFY 30MG TABS 2 30 60 Cardinal 12/15/2004 8675501 ABILIFY 30MG TABS 1 30 30 Cardina 12/17/2004 8698886 ABILIFY 30MG TABS 2 30 60 Cardinal 12/20/2004 8710356 ABILIFY 30MG TABS 1 30 30 Cardina 12/21/2004 8724586 ABILIFY 30MG TABS 1 30 30 Cardinal 12/21/2004 8724595 ABILIFY 30MG TABS 1 30 30 Cardina 12/23/2004 8747265 ABILIFY 30MG TABS 2 30 60 Cardina 12/28/2004 8775907 ABILIFY 30MG TABS 1 30 30 Cardinal 1/3/2005 8812583 ABILIFY 30MG TABS 4 30 30 Cardinal 1/4/2005 8827487 ABILIFY 30MG TABS 1 30 30 Cardinal 1/11/2005 8892068 ABILIFY 30MG TABS 2 30 60 Cardina 18/2005 8956215 ABILIFY 30MG TABS 1 30 30 Cardina. 1/18/2005 8986222 ABILIFY 30MG TABS 2 30 60 Cardinal 1/19/2005 8964791 ABILIFY 30MG TABS 2 30 60 Cardinal 1/20/2005 8976487 ABILIFY 30MG TABS 1 30 30 Cardinal 1/20/2005 8976494 ABILIFY 30MG TABS 1 30 30 Cardinal 1/26/2005 9025642 ABILIFY 30MG TABS 1 30 30 Cardinal 1/26/2005 9025744 ABILIFY 30MG TABS 4 30 30 Cardinal 1/26/2005 9025739 ABILIFY 30MG TABS 4 30 30 Cardinal 2/1/2005 9079101 ABILIFY 30MG TABS 1 30 30 Cardinal 2/8/2005 9138551 ABILIFY 30MG TABS 3 30 90 Cardinai 2/9/2006 9152356 ABILIFY 30MG TABS 4 30 30 Cardinal 2/11/2005 9177628 ABILIFY 30MG TABS 1 30 30 Cardinal 2/18/2005 9240012 ABILIFY 30MG TABS 1 30 30 Cardinal 2/21/2005 9250274 ABILIFY 30MG TABS 1 30 30 Cardinai 2/24/2005 9293161 ABILIFY 30MG TABS 2 30 60 Cardinal 2/24/2008 9293259 ABILIFY 30MG TABS 4 30 30 (Page 9 of 48) Weilscripts LLC INVOICE REVIEW Provider # 026820800 ‘ oem nae
Findings Of Fact The PROVIDER received the Final Audit Report that gave notice of PROVIDER'S right to an administrative hearing regarding the alleged Medicaid overpayment. The PROVIDER filed a petition requesting an administrative hearing, and then caused that petition to be WITHDRAWN and the administrative hearing case to be CLOSED. PROVIDER chose not to dispute the facts set forth in the Final Audit Report dated August 15, 2013. The facts alleged in the FAR are hereby deemed admitted, including the total amount of $14,569.69, which includes a fine sanction of $2,419.26. The Agency hereby adopts the facts as set forth in the FAR including the amount of $14,569.69 which is now due and owing, from PROVIDER to the Agency.
Conclusions THIS CAUSE came before me for issuance of a Final Order on a Final Audit Report (“FAR”) dated August 15, 2013 (C.1. No. 13-1386-000). By the Final Audit Report, the Agency for Health Care Administration (“AHCA” or “Agency”), informed the Respondent, Amwill Assisted Living, Inc., (hereinafter “PROVIDER’), that the Agency was seeking to recover Medicaid overpayments in the amount of $12,096.28, and impose a fine sanction of $2,419.26 pursuant to Sections 409.913(15), (16), and (17), Florida Statutes, and Rule 59G- 9.070(7)(e), Florida Administrative Code, and costs of $54.15 for a total amount of $14,569.69. The Final Audit Report provided full disclosure and notice to the PROVIDER of procedures for requesting an administrative hearing to contest the alleged overpayment. The PROVIDER filed a petition with the Agency requesting a formal administrative hearing on or about September 5, 2013. The Agency forwarded PROVIDER'S hearing request to the Division of Administrative Hearings (Division) for a formal administrative hearing. The Division scheduled a formal hearing for November 22, 2013. On November 12, 2013, the PROVIDER filed a Motion with the Administrative Law Judge, requesting AHCA vs. Amwill Assisted Living, Inc. (AHCA C.I, No.: 13-1386-000) Final Order Page 1 of 4 Filed January 2, 2014 10:59 AM Division of Administrative Hearings withdrawal of their Petition for Formal Hearing, and the Administrative Law Judge issued an Order Closing File on November 12, 2013, relinquishing jurisdiction of the case to the Agency.
The Issue 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
The Issue Whether Medicaid overpayments were made to Petitioner and, if so, what is the total amount of those overpayments.
Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, including the parties' Joint Prehearing Stipulation, the following findings s of fact are made: Petitioner and his Practice Petitioner is a general practice physician. He has been licensed to practice medicine in Florida for the past ten years. He is now, and has been at all times material to the instant case, in private practice in Miami-Dade County, Florida Petitioner's Participation in the Medicaid Program During the Audit Period, Petitioner was authorized to provide physician services to eligible Medicaid patients. Petitioner provided such services pursuant to a valid provider agreement with AHCA.4 Petitioner's Medicaid provider number was, and remains, 3759873 00 Petitioner billed all of the Medicaid claims that are the subject of the instant controversy under this (individual) provider number. Handbook Provisions As a prerequisite to his entitlement to Medicaid payment for services rendered during the Audit Period, Petitioner was required to comply with, among other things, the provisions of the Physician Coverage and Limitations Handbook (PCL Handbook) then in effect. Medical Necessity Chapter 2 of the PCL Handbook provided that the Medicaid program would reimburse physician providers for services "determined [to be] medically necessary" and not duplicative of another provider's service, and it went on to state as follows: In addition, the services must meet the following criteria: the services must be individualized, specific, consistent with symptoms or confirmed diagnosis of the illness or injury under treatment, and not in excess of the recipient's needs; the services cannot be experimental or investigational; the services must reflect the level of services that can be safely furnished and for which no equally effective and more conservative or less costly treatment is available statewide; and the service must be furnished in a manner not primarily intended for the convenience of the recipient, the recipient's caretaker, or the provider. The fact that a provider has prescribed, recommended, or approved medical or allied care, goods, or services does not, in itself, make such care, goods or services medically necessary or a covered services. Radiology Services Chapter 2 of the PCL Handbook further provided that, "[t]o be reimbursed the maximum fee [or 'global fee'] for a radiology service, the physician must provide both the technical and professional components." A physician provider billing the "global fee" was not authorized, pursuant Chapter 2 of the PCL Handbook, to also seek additional payment for the "professional component" of that fee. Doing so amounted to impermissible "double-billing." Coding Chapter 3 of the PCL Handbook "describe[d] the procedure codes for the services reimbursable by Medicaid that [had to be] used by physicians providing services to eligible recipients." As explained on the first page of this chapter of the handbook: The procedure codes listed in this chapter [were] Health Care Financing Administration Common Procedure Coding System (HCPCS) Levels 1, 2 and 3. These [were] based on the Physician[]s['] Current Procedural Terminology (CPT) book. The CPT include[d] HCPCS descriptive terms and numeric identifying codes and modifiers for reporting services and procedures. . . . The Physicians' Current Procedural Terminology At all times material to the instant case, the American Medical Association's Physicians' Current Procedural Terminology (or the "CPT") referred to in Chapter 3 of the PCL Handbook contained an "[i]ntroduction," which read, in pertinent part, as follows: Current Procedural Terminology, Fourth Edition (CPT) is a systematic listing and coding of procedures and services performed by physicians. Each procedure or service is identified by a five digit code. . . . Inclusion of a descriptor and its associated specific five-digit identifying code number in CPT is generally based upon the procedure being consistent with contemporary medical practice and being performed by many physicians in clinical practice in multiple locations. . . . * * * Section Numbers and Their Sequences Evaluation and Management 99201 to 99499 * * * Surgery 10040 to 69979 Radiology (Including Nuclear Medicine and Diagnostic Ultrasound) 70010 to 79999 Pathology and Laboratory 80002 to 89399 Medicine (except Anesthesiology) 90701 to 99199 * * * The CPT had "[e]valuation and [m]anagement (E/M) [s]ervice [g]uidelines" (E/M Guidelines). It was noted on the first page of the E/M Guidelines that: The E/M section is divided into broad categories such as office visits, hospital visits, and consultations. Most of the categories are further divided into two or more subcategories of E/M services. For example, there are two subcategories of office visits (new patient and established patient) and there are two subcategories of hospital visits (initial and subsequent). The subcategories of the E/M services are further classified into levels of E/M services that are identified by specific codes. . . . "New and [e]stablished patient[s]" were described in the E/M Guidelines as follows: A new patient is one who has not received any professional services from the physician or another physician of the same specialty who belongs to the same group practice, within the past three years. An established patient is one who has received professional services from the physician or another physician of the same specialty who belongs to the same group practice, within the past three years. The concept of "[l]evels of E/M [s]ervices" was described, in pertinent part, as follows in the E/M Guidelines: Within each category or subcategory of E/M service, there are three to five levels of E/M services available for reporting purposes. Levels of E/M services are not interchangeable among the different categories of service. For example, the first level of E/M services in the subcategory of office visit, new patient, does not have the same definition as the first level of E/M services in the subcategory of office visit, established patient. The levels of E/M services include examinations, evaluations, treatments, conferences with or concerning patients, preventative pediatric and adult health supervision, and similar medical services, such as the determination of the need and/or location for appropriate care. Medical screening includes the history, examination, and medical decision-making required to determine the need and/or location for appropriate care and treatment of the patient (e.g., office and other outpatient setting, emergency department, nursing facility, etc.). The levels of E/M services encompass the wide variations in skill, effort, time, responsibility and medical knowledge required for the prevention or diagnosis and treatment of illness or injury and the promotion of optimal health. Each level of E/M services may be used by all physicians. The descriptors for the levels of E/M services recognize seven components, six of which are used in defining the levels of E/M services. These components are: history; examination; medical decision making; counseling; coordination of care; nature of presenting problem; and time. The first three of these components (history, examination and medical decision making) are considered the key components in selecting a level of E/M services. . . . The next three components (counseling, coordination of care, and the nature of the presenting problem) are considered contributory factors in the majority of encounters. . . . * * * The actual performance and/or interpretation of diagnostic tests/studies ordered during a patient encounter are not included in the levels of E/M services. Physician performance of diagnostic tests for which specific CPT codes are available may be reported separately, in addition to the appropriate E/M code. The physician's interpretation of the results or diagnostic tests/studies (i.e., professional component) with preparation of a separate distinctly identifiable signed written report may also be reported separately, using the appropriate CPT code with the modifier -26 appended. * * * Time . . . . The inclusion of time as an explicit factor beginning in CPT 1992 is done to assist physicians in selecting the most appropriate level of E/M services. It should be recognized that the specific times expressed in the visit code descriptors are averages, and therefore represent a range of times which may be higher or lower depending on actual clinical circumstances. * * * The E/M Guidelines contained "[i]nstructions for [s]electing a [l]evel of E/M [s]ervice," which read, in pertinent part, as follows: * * * Review of Level of E/M Service Descriptors and Examples in the Selected Category or Subcategory The descriptors for the levels of E/M services recognize seven components, six of which are used in defining the levels of E/M services. These components are: history; examination; medical decision making; counseling; coordination of care; nature of presenting problem; and time. The first three or these components (i.e., history, examination and medical decision making) are considered the key components in selecting a level of E/M services. An exception to this rule is in the case of visits which consist predominantly of counseling or coordination of care. . . . The nature of the presenting problem and time are provided in some levels to assist the physician in determining the appropriate level of E/M service. Determine the Extent of History Obtained The extent of history is dependent upon clinical judgment and on the nature of the presenting problem(s). The levels of E/M services recognize four types of history that are defined as followed: Problem Focused: chief complaint; brief history of present illness or problem. Expanded Problem Focused: chief complaint; brief history of present illness; problem pertinent system review. Detailed: chief complaint; extended history of present illness; problem pertinent system review extended to include a review of a limited number of additional systems; pertinent past, family and/or social history directly related to the patient's problems. Comprehensive: chief complaint; extended history of present illness; review of systems which is directly related to the problem(s) identified in the history of the present illness plus a review of all additional body systems; complete past, family and social history. * * * Determine the Extent of Examination Performed The extent of the examination performed is dependent on clinical judgment and on the nature of the presenting problem(s). The levels of E/M services recognize four types of examinations that are defined as follows: Problem Focused: a limited examination of the affected body area or organ system. Expanded Problem Focused: a limited examination of the affected body area or organ system and other symptomatic or related organ system(s). Detailed: an extended examination of the affected body area(s) and other symptomatic or related organ system(s). Comprehensive: a general multi-system examination or a complete examination of a single organ system. . . . For the purposes of these CPT definitions, the following body areas are recognized Head, including the face Neck Chest, including breasts and axilla Abdomen Genitalia, groin, buttocks Back Each extremity For the purposes of these CPT definitions, the following organ systems are recognized Eyes Ears, Nose, Mouth and Throat Cardiovascular Respiratory Gastrointestinal Genitourinary Musculoskeletal Skin Neurologic Psychiatric Hematologic/Lymphatic/Immunologic Determine the Complexity of Medical Decision Making Medical decision making refers to the complexity of establishing a diagnosis and/or selecting a management option as measured by: the number of possible diagnoses and/or the number of management options that must be considered; the amount and/or complexity of medical records, diagnostic tests, and/or other information that must be obtained, reviewed and analyzed; and -The risk of significant complications, morbidity and/or mortality, as well as comorbidities, associated with the patient's presenting problem(s), the diagnostic procedure(s) and/or the possible management options. Four types of medical decision making are recognized: straightforward; low complexity; moderate complexity; and high complexity. To qualify for a given type of decision making, two of the three elements [shown below] must be met or exceeded. Type of Decision Making: straightforward; Number of Diagnoses or Management Options: minimal; Amount and/or Complexity of Data to be Reviewed: minimal or none; Risk of Complications and/or Morbidity or Mortality: minimal Type of Decision Making: low complexity; Number of Diagnoses or Management Options: limited; Amount and/or Complexity of Data to be Reviewed: limited; Risk of Complications and/or Morbidity or Mortality: low Type of Decision making: moderate complexity; Number of Diagnoses or Management Options: multiple; Amount and/or Complexity of Data to be Reviewed: moderate; Risk of Complications and/or Morbidity or Mortality: moderate Type of Decision Making: High complexity; Number of Diagnoses or Management Options: extensive; Amount and/or Complexity of Data to be Reviewed: extensive; Risk of Complications and/or Morbidity or Mortality: high Comorbidities/underlying diseases, in and of themselves, are not considered in selecting a level of E/M services unless their presence significantly increases the complexity of the medical decision making. Select the Appropriate Level of E/M Services Based on the Following For the following categories/ subcategories, all of the key components, i.e., history, examination, and medical decision making, must meet or exceed the stated requirements to qualify for a particular level of E/M service: office, new patient; hospital observation services; initial hospital care; office consultations; initial inpatient consultations; confirmatory consultations; emergency department services; comprehensive nursing facility assessments; domiciliary care, new patient; and home, new patient. . . For the following categories/ subcategories, two of the three key components, (i.e., history, examination, and medical decision making) must meet or exceed the stated requirements to qualify for a particular level of E/M service: office, established patient; subsequent hospital care; follow-up inpatient consultations; subsequent nursing facility care; domiciliary care, established patient; and home, established patient. In the case where counseling and/or coordination of care dominates (more than 50%) of the physician/patient and/or family encounter (face-to-face time in the office or other outpatient setting or floor/unit time in the hospital or nursing facility) then time is considered the key or controlling factor to qualify for a particular level of E/M services. The extent of counseling and/or coordination of care must be documented in the medical record.[5] The CPT contained the following codes and code descriptions for "E/M" office and other outpatient services: New Patient 99201 Office or other outpatient visit for the evaluation and management of a new patient, which requires these three key components: a problem focused history; a problem focused examination; and straightforward medical decision making. Counseling and/or coordination of care with other providers or agencies are provided consistent with the nature of the problem(s) and the patient's and/or family's needs. Usually, the presenting problems are self- limited or minor. Physicians typically spend 10 minutes face-to-face with the patient and/or family. * * * 99202 Office or other outpatient visit for the evaluation and management of a new patient which requires these three key components: an expanded problem focused history; an expanded problem focused examination; and straightforward medical decision making. Counseling and/or coordination of care with other providers or agencies are provided consistent with the nature of the problem(s) and the patient's and/or family's needs. Usually, the presenting problem(s) are of low to moderate severity. Physicians typically spend 20 minutes face-to-face with the patient and/or family. * * * 99203 Office or other outpatient visit for the evaluation and management of a new patient which requires these three key components: a detailed history; a detailed examination; and medical decision making of low complexity. Counseling and/or coordination of care with other providers or agencies are provided consistent with the nature of the problem(s) and the patient's and/or family's needs. Usually, the presenting problem(s) are of moderate severity. Physicians typically spend 30 minutes face-to-face with the patient and/or family. * * * 99204 Office or other outpatient visit for the evaluation and management of a new patient which requires these three key components: a comprehensive history; a comprehensive examination; and medical decision making of moderate complexity. Counseling and/or coordination of care with other providers or agencies are provided consistent with the nature of the problem(s) and the patient's and/or family's needs. Usually, the presenting problem(s) are of moderate to high severity. Physicians typically spend 45 minutes face-to-face with the patient and/or family. * * * 99205 Office or other outpatient visit for the evaluation and management of a new patient which requires these three key components: a comprehensive history; a comprehensive examination; and medical decision making of high complexity. Counseling and/or coordination of care with other providers or agencies are provided consistent with the nature of the problem(s) and the patient's and/or family's needs. Usually, the presenting problems are of moderate to high severity. Physicians typically spend 60 minutes face-to-face with the patient and/or family. * * * Established Patient 99211 Office or other outpatient visit for the evaluation and management of an established patient that may not require the presence of a physician. Usually, the presenting problem(s) are minimal. Typically, 5 minutes are spent performing or supervising these services. * * * 99212 Office or other outpatient visit for the evaluation and management of an established patient, which requires at least two of these three key components: a problem focused history; a problem focused examination; straightforward medical decision making. Counseling and/or coordination of care with other providers or agencies are provided consistent with the nature of the problem(s) and the patient's and/or family's needs. Usually, the presenting problem(s) are self- limited or minor. Physicians typically spend 10 minutes face-to-face with the patient and/or family. * * * 99213 Office or other outpatient visit for the evaluation and management of an established patient, which requires at least two of these three key components: an expanded problem focused history; an expanded problem focused examination; medical decision making of low complexity. Counseling and coordination of care with other providers or agencies are provided consistent with the nature of the problem(s) and the patient's and/or family's needs. Usually, the presenting problem(s) are of low to moderate severity. Physicians typically spend 15 minutes face-to-face with the patient and/or family. * * * 99214 Office or other outpatient visit for the evaluation and management of an established patient, which requires at least two of these three key components: a detailed history; a detailed examination; medical decision making of moderate complexity. Counseling and/or coordination of care with other providers or agencies are provided consistent with the nature of the problem(s) and the patient's and/or family's needs. Usually, the presenting problem(s) are of moderate to high severity. Physicians typically spend 25 minutes face-to-face with the patient and/or family. * * * 99215 Office or other outpatient visit for the evaluation and management of an established patient, which requires at least two of these three key components: a comprehensive history; a comprehensive examination; medical decision making of high complexity. Counseling and/or coordination of care with other providers or agencies are provided consistent with the nature of the problem(s) and the patient's and/or family's needs. Usually, the presenting problem(s) are of moderate to high severity. Physicians typically spend 40 minutes face-to-face with the patient and/or family. The CPT provided separate codes for "prolonged physician service with direct (face-to-face) patient contact" and contained the following explanation as to when these codes were to be used: Codes 99354-99357 are used when a physician provides prolonged service involving direct (face-to-face) patient contact that is beyond the usual service in either the inpatient or outpatient setting. This service is reported in addition to other physician service, including evaluation and management service at any level. Appropriate codes should be selected for supplies or procedures performed in the care of the patient during this period. Codes 99354-99357 are used to report the total duration of face-to-face time spent by a physician on a given date providing prolonged service, even if the time spent by the physician on that date is not continuous. Code 99354 or 99356 is used to report the first hour of prolonged service on a given date, depending on the place of service. Either code also may be used to report a total duration of prolonged service of 30-60 minutes on a given date. Either code should be used only once per date, even if the time spent by the physician is not continuous on that date. Prolonged service of less than 30 minutes total duration on a given date is not separately reported because the work involved is included in the total work of the evaluation and management codes. Code 99355 or 99357 is used to report each additional 30 minutes beyond the first hour, depending on the place of service. Either code may also be used to report the final 15-30 minutes of prolonged service on a given date. Prolonged service of less than 15 minutes beyond the first hour or less than 15 minutes beyond the final 30 minutes is not reported separately. * * * The Audit and Aftermath Commencing in or around August 2000, AHCA conducted an audit of paid Medicaid claims submitted by Petitioner for services assertedly rendered from May 22, 1998, through May 22, 2000.6 Petitioner had submitted 4,574 Medicaid claims for services assertedly rendered during the Audit Period to 492 patients, for which he had received payments totaling $156,903.14. From the 492 Medicaid patients to whom Petitioner had assertedly provided services during the Audit Period, AHCA randomly selected a "cluster sample" of 41, and obtained from Petitioner medical records he had on file for these 41 patients. Petitioner had submitted a total of 325 claims for services assertedly rendered to the 41 patients in the "cluster sample" during the Audit Period and had received a total of $11,562.14 in Medicaid payments for these services.7 Each of these claims was reviewed to determine whether it was supported by information contained in the medical records obtained from Petitioner. Based on a preliminary review, AHCA determined that Petitioner had been overpaid a total $58,157.96 for the Medicaid claims he had submitted for services assertedly rendered during the Audit Period. By letter dated September 10, 2002, AHCA advised Petitioner of this preliminary determination and "encourage[d] [him] to submit any additional information or documentation" in his possession that he believed would "serve to reduce the overpayment." The antepenultimate and penultimate paragraphs of the letter read as follows: Since you have a choice of accepting the above overpayment or submitting additional information, this is not a final action by the Agency for Health Care Administration. If you have not made payment within thirty (30) days, we will prepare and send to you the final agency determination, taking into consideration any information or documentation that you submit within that time period. Petitioner did not "ma[k]e payment within thirty (30) days" of AHCA's September 10, 2002, letter. As promised, following another review conducted after the expiration of this 30-day period, AHCA "prepare[d] and sen[t] to [Petitioner]" its Final Agency Audit Report showing the calculation of overpayments made to Petitioner during the Audit Period.8 AHCA's Final Agency Audit Report was dated January 28, 2003, and in the form of a letter to Petitioner, which read, in pertinent part, as follows: Medicaid Integrity has completed the review of your Medicaid claims for the procedures specified below for dates of service during the period May 22, 1998 through May 22, 2000. A Provisional Agency Audit Report, dated September 10, 2002, was sent to you indicating that we had determined you were overpaid $58,157.96. Based upon a review of all documentation submitted, we have determined that you were overpaid $58,157.96 for services that in whole or in part are not covered by Medicaid. Pursuant to Section 409.913, Florida Statutes (F.S.), this letter shall serve as notice of the following sanction(s): The provider is subject to comprehensive follow-up review in six months. In determining the appropriateness of Medicaid payment pursuant to Medicaid policy, the Medicaid program utilizes procedure codes, descriptions, policies, limitations and requirements found in the Medicaid provider handbooks and Section 409.913, F.S. In applying for Medicaid reimbursement providers are required to follow the guidelines set forth in the applicable rules[9] and Medicaid fee schedules, as promulgated in the Medicaid policy handbooks, billing bulletins, and the Medicaid provider agreement. Medicaid cannot pay for services that do not meet these guidelines. The following is our assessment of why certain claims paid to your provider number do not meet Medicaid requirements. The audit work papers detailing the claims affected by this assessment are attached. REVIEW DETERMINATION(S) Medicaid policy specifies how medical records must be maintained. A review of your medical records revealed that some services for which you billed and received payment were not documented. Medicaid requires documentation of the services and considers payments made for services not appropriately documented an overpayment. Medicaid policy defines the varying levels of care and expertise required for the evaluation and management procedure codes for office visits. The documentation you provided supports a lower level of office visit than the one for which you billed and received payment. The difference between the amounts you were paid and the correct payment for the appropriate level of service is considered an overpayment. Medicaid policy requires services performed be medically necessary for the diagnosis and treatment of an illness. You billed and received payments for services for which the medical records, when reviewed by a Medicaid physician consultant, indicated that the services provided did not meet the Medicaid criteria for medical necessity. The claims, which were considered medically unnecessary, were disallowed and the money you were paid for these procedures is considered an overpayment. Medicaid policy addresses specific billing requirements and procedures. In some instances, you billed a procedure code as global and also billed the professional when the professional component was incorporated in the global fee. The difference between the amounts you were paid and the appropriate fee is considered an overpayment. The overpayment was calculated as follows: A random sample of 41 recipients respecting whom you submitted 325 claims was reviewed. For those claims in the sample which have dates of service from May 22, 1998, through May 22, 2000, an overpayment of $5,004.04 or $15.39704606 per claim was found, as indicated on the accompanying schedule. Since you were paid for a total (population) of 4,574 claims for that period, the point estimate of the total overpayment is $15.39704606 x 4,574=$70,426.09. There is a 50 percent probability that the overpayment to you is that amount or more. There was then an explanation of the "statistical formula for cluster sampling" that AHCA used and how it "calculated that the overpayment to [Petitioner was] $58,157.96 with a ninety-five percent (95%) probability that it is that amount or more." The concluding portions of the letter advised Petitioner of his right to "request an administrative hearing [on this overpayment determination] pursuant to Sections 120.569 and 120.57, Florida Statutes." The "Medicaid physician consultant" referred to in AHCA's January 28, 2003, letter was Lisa Kohler, M.D., a Florida-licensed "family physician," who is certified by the American Board of Family Practice and is a fellow of the American Academy of Family Physicians. Dr. Kohler received her medical education at the University of South Florida College of Medicine, from which she graduated in 1985. After graduation, she did her internship and residency at Tallahassee Memorial Regional Medical Center's Family Practice Residency program. In 1988, following the completion of her residency, she entered private practice. She currently serves as the Associate Director of the Tallahassee Memorial Regional Medical Center's Family Practice Residency program. In addition, she is a Clinical Assistant Professor in the Department of Family Medicine at the University of South Florida College of Medicine and the Volunteer Medical Director of the Neighborhood Health Services in Tallahassee, Florida, a health clinic that provides free medical care to indigent patients. In accordance with the "peer review" provisions of Section 409.9131, Florida Statutes, which became effective July 1, 1999, AHCA had Dr. Kohler review all of the records that Petitioner had provided regarding the 41 patients in the "cluster sample"10 to determine whether there was documentation to support the Medicaid claims relating to these patients that Petitioner had submitted for services assertedly rendered during the Audit Period. In conducting her "peer review," Dr. Kohler did not interview any of the 41 patients in the "cluster sample," nor did she take any other steps to supplement the information contained in the records she examined. Her assessment of the propriety of Petitioner's billing was based exclusively on what was in those records and no other information. On February 19, 2003, Petitioner requested an administrative hearing on the overpayment determination (announced in AHCA's January 28, 2003, letter to Petitioner). On or about August 20, 2003, following a meeting between the parties, AHCA made a downward revision in its overpayment calculation, to $47,931.79. AHCA has made no additional revisions to its overpayment calculation in the instant case. It maintains that Petitioner received $47,931.79 in Medicaid overpayments for services claimed to have been provided during the Audit Period. In making this final overpayment calculation, AHCA determined, correctly, that Petitioner was overpaid a total of $3,867.62, or $11.90036931 per claim, for the 325 claims he had submitted seeking reimbursement from Medicaid for services assertedly rendered during the Audit Period to the 41 patients in the "cluster sample." Using a statistical formula the validity of which Petitioner has not disputed, AHCA extended these results to the total "population" of 4,574 Medicaid claims that Petitioner had submitted for services assertedly rendered during the Audit Period, and it correctly calculated that Petitioner had been overpaid a total of $47,931.79. Simple Mistake or Fraud? There has been no allegation made, nor proof submitted, that any of Petitioner's overbillings was the product of anything other than simple mistake or inadvertence on Petitioner's part.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that AHCA enter a final order finding that Petitioner received $47,931.79 in Medicaid overpayments for paid claims covering the period from May 22, 1998, through May 22, 2000, and requiring Petitioner to repay this amount to AHCA. DONE AND ENTERED this 15th day of June, 2004, in Tallahassee, Leon County, Florida. S STUART M. LERNER 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 15th day of June, 2004.
