The Issue The issues are whether Respondent violated Sections 458.331(1)(m) and/or 458.331(1)(t), Florida Statutes (2005), and if so, what penalty should be imposed.
Findings Of Fact Petitioner is the state agency responsible for regulating the practice of medicine. Respondent is a licensed Florida physician. He practices medicine as a board-certified surgeon in Niceville, Florida. His medical license number is ME 82923. At all times relevant here, Mark Schroeder, M.D. shared office space with Respondent in Niceville, Florida. Dr. Schroeder is a primary care physician. He has been board- certified in internal medicine since 1989. At all times relevant here, Patrick J. Anastasio, D.O., was a practicing physician in Fort Walton Beach, Florida. Dr. Anastasio is dual board-certified in internal medicine and infectious disease. In November 2005, Patient A.R. was a 35-year-old female. Her primary care physician was Dr. Schroeder. As part of her medical history, Patient A.R. reported to Dr. Schroeder that she was allergic to Amoxil/Amoxcillian. On November 2, 2005, Patient A.R. had an appointment with Dr. Schroeder. Patient A.R. complained that she suffered from constant nausea and stomach discomfort associated with her meals. On November 4, 2005, Patient A.R. underwent a gallbladder ultrasound to rule out her gallbladder as the cause of her nausea. The ultrasound indicated that Patient A.R.’s gallbladder was normal. On or about November 29, 2005, Patient A.R. had a blood test. The test results showed a positive result for Helicobacter pylori (H. pylori), which is a bacterium that infects the stomach. H. pylori causes gastritis, ulcers, and possibly even gastric cancer in some people. Other people infected with H. pylori may never have these symptoms or problems. On December 6, 2005, Dr. Schroeder prescribed a 14-day regimen of antibiotics to treat Patient A.R.’s gastritis and H. pylori infection. Specifically, Dr. Schroeder prescribed Tetracycline, Flagyl, and Nexium (a proton pump inhibitor). Patient A.R. took the medicine as prescribed for two days. She then called Dr. Schroeder’s office, requesting an alternative treatment plan due to severe nausea and sleeplessness. Before providing Patient A.R. with an alternative treatment plan, Dr. Schroeder consulted with Dr. Anastasio. Dr. Schroeder explained that Patient A.R. was allergic to Amoxil and that she had not been able to tolerate the regimen of Tetracycline and Flagyl. After this consultation, Dr. Schroeder prescribed a 7-day regimen of the following: (a) the antibiotic Biaxin to substitute for the Tetracylcine; (b) Tigan to help with Patient A.R.’s nausea; and (c) Xanax to relieve Patient A.R.’s anxiety. On December 13, 2005, Patient A.R. had a follow-up office visit with Dr. Schroeder. Dr. Schroeder understood that Patient A.R. was doing better overall on the Biaxin-based treatment regimen. On December 21, 2005, Patient A.R. reported to Dr. Schroeder that she had almost finished her antibiotics but was still not feeling well. Patient A.R. also reported that she might have oral thrush and needed a prescription to treat it. On December 27, 2005, Dr. Schroeder prescribed Nexium for Patient A.R. Despite missing some days of work, Patient A.R. completed the treatment therapy consisting of Biaxin, Flagyl, and Nexium. On January 3, 2006, Patient A.R. had another follow-up office visit with Dr. Schroeder. Dr. Schroeder’s records indicate that Patient A.R. was doing well and that her gastritis had resolved. Dr. Schroeder prescribed continued use of Nexium. On or about January 23, 2006, Patient A.R. called Dr. Schroeder’s office to report problems with persistent nausea and to request a referral for a “scope of her stomach.” She made the request based on prior discussions with Dr. Schroeder as to the next option if the Biaxin-based treatment regimen was not successful. Dr. Schroeder referred Patient A.R. to Respondent for a possible esophagogastroduodenoscopy (EGD or upper endoscopy). On February 13, 2006, Patient A.R. presented to Respondent with complaints of epigastric and abdominal pain and nausea. Respondent’s record of the visit indicates that Patient A.R. had a history of H. pylori infection in a post-treatment status. The record also indicates that Patient A.R. was allergic to Amoxil. On February 22, 2006, Respondent performed an EGD on Patient A.R. After the procedure, Respondent diagnosed Patient A.R. with moderate to severe gastritis. A pathology report dated February 23, 2006, confirmed that Patient A.R. was suffering from a H. pylori stomach infection. On February 28, 2006, Patient A.R. had an office visit with Respondent to discuss the pathology results. During this visit, Respondent inquired about Patient A.R.’s reported and documented allergy to Amoxil. Patient A.R. told Respondent that when she was 15 years old and suffering from mononucleosis, her family physician prescribed Amoxil for her. Patient A.R. took Amoxil for about a week with no indication of a reaction or sensitivity. When she began the second bottle of the antibiotic, Patient A.R. developed a head- to-toe rash and swelling. The delayed onset rash did not present an anaphylactic or life-threatening reaction. The symptoms resolved after cessation of the drug with no need for further medical intervention. There is a known interaction between ingestion of amoxicillin and mononucleosis. The reaction manifests itself in a delayed development of a rash occurring on the patient’s trunk and extremities. Children who take amoxicillin while infected with mononucleosis experience this symptomatic interaction in a great percentage, almost 100 percent, of cases. Respondent discussed Patient A.R.’s previous history of allergy to Amoxil with Dr. Schroeder. Respondent’s record states as follows: . . . She has an allergy to penicillin and failed other non-penicillin based drug regimens for H. pylori treatment, specifically, [T]etracycline/Flagyl and Biaxin/Flagyl both prescribed by Dr. Mark Schroeder. . . . * * * I immediately discussed this case with Dr. Schroeder. Ms. [R.] and her husband should both be treated with antibiotics for Heliocobacter pylori infection concurrently. After careful review of her previous history with Dr. Schroeder, there is a possibility that she is not allergic to amoxicillin, as she developed a rash while she had a mononucleosis infection, which is a common side effect. Dr. Schroeder recommended a trial of amoxicillin/Biaxin as she has exhausted all other H. pylori treatments that are not penicillin based. She will take her amoxicillin judiciously, and if she does develop any side effects will stop it immediately and report this to either myself or Dr. Schroeder. Otherwise, she will follow up with me in six months for consideration for repeat upper endoscopy. Based on the determination that Patient A.R. possibly was not allergic to Amoxil, Respondent prescribed her a 14-day treatment regimen of Amoxicillin and Clarithromycin (Biaxin), along with Nexium. As Patient A.R. left Respondent’s office, Respondent told Patient A.R. to take the treatment, assuring her that she absolutely was not truly allergic to Amoxcil. Patient A.R. did not begin taking the Amoxil treatment regimen until March 25, 2006. She delayed starting the treatment because she knew the treatment would be “rough.” She was concerned that she would miss work and be unable to enjoy a visit from out-of-town family. Patient A.R. began the treatment on a Saturday to give her body “a couple of days to adjust to the medication.” Within three hours of taking the Amoxil, Patient A.F. experienced a tingling and stinging sensation in her left middle finger. Because she had been working in the yard, Patient A.R. believed that a bee might have stung her. She did not suspect an allergic reaction because she had not had a localized reaction to Amoxil when she was fifteen years old. On Sunday, March 26, 2006, Patient A.R. continued to take the Amoxil. Her finger continued to tingle, so she soaked it in a saltwater solution. On Monday, March 27, 2006, Patient A.R.’s finger looked terrible; it was red and purple in color and swollen to twice its normal size. As previously instructed by Respondent, Patient A.R. called his office and spoke with a nurse. The nurse suggested that Patient A.R. call an immediate care facility because Respondent was in the operating room that morning and had a “room full of patients” to see in the afternoon. On March 27, 2006, Patient A.R. ultimately saw a physician or a physician assistant at Gulf Coast Immediate Care. She was diagnosed with cellulites in the finger and prescribed a cream to put on it twice a day. Patient A.R. was advised to continue taking the Amoxil. On March 28, 2006, Patient A.R.’s finger continued to get worse, turning “purplish black” in color. Patient A.R. continued to take the Amoxil-based treatment regimen because she did not have a head-to-toe rash or swelling like she did when she took the drug as a teenager. On Wednesday, March 29, 2006, Patient A.R. woke up with a head-to-toe rash, swelling, and tightness in her chest. Realizing that she was suffering from an allergic reaction to the Amoxil, Patient A.R. went to the emergency room of the Fort Walton Beach Medical Center around 7:00 a.m. The emergency room physician noted his clinical impression of Patient A.R. to be an acute allergic reaction and cellulites in her third left finger. He immediately treated her intravenously with Benadryl, Pepcid, and Solumedrol. After the trip to the emergency room, Patient A.R. stopped taking the Amoxil. Patient A.R.’s rash and the problem with her finger subsequently resolved. On or about March 31, 2006, Patient A.R. saw Leo Chen, M.D., an orthopaedic surgeon. Dr. Chen examined Patient A.R.’s finger on a referral from Respondent. On or about April 3, 2006, Patient A.R. presented to Respondent for the last time. Regarding that visit, Respondent’s notes state as follows: Again I discussed this case with Dr. Schroeder while the patient was in my office, and a phone consultation was obtained with Dr. Patrick Anastasio of Infectious Disease. The patient did have an allergic reaction to amoxicillin, and this has now been confirmed. She developed an allergic reaction to amoxicillin approximately twenty years ago while she had mononucleosis, and this was thought to be a side effect due to the combination of mononucleosis and amoxicillin, however this apparently is not the case. She did seek appropriate treatment at the emergency room and was placed on appropriate drug therapy, and seems to be resolving quite well at this time. The patient will be sent for an infectious disease consultation with Dr. Patrick Anastasio, who will take on treating the patient’s Helicobacter pylori infection, which will need to be some form of unconventional treatment or desensitization to penicillin. . . . On or about May 4, 2006, Patient A.R. presented to Dr. Anastasio at Emerald Coast Infectious Diseases. Dr. Anastasio prescribed “quadruple therapy” including the antibiotics Biaxin and Flagyl for 14 days, along with Nexium and Bismuth Subsalicylate, commonly known as Pepto Bismol. Patient A.R. completed the treatment prescribed by Dr. Anastasio. An August 2006 stool sample confirmed that the treatment had eradicated the H. pylori stomach infection. Subjecting Patient A.R. to Amoxil in 2006 was a challenge to her reported allergy. Her allergic reaction was more serious than when she was a teenager because it involved a localized reaction in her finger. This time the challenge to the allergy did not lead to anaphylaxis and death.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Petitioner enter a final order finding that Respondent violated the statutes as charged, issuing a letter of concern, imposing a $10,000 fine, and requiring five hours of continuing medical education. DONE AND ENTERED this 5th day of July, 2007, in Tallahassee, Leon County, Florida. S SUZANNE F. HOOD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 5th day of July, 2007. COPIES FURNISHED: Matthew Casey, Esquire Department of Health 4052 Bald Cypress Way Bin C-65 Tallahassee, Florida 32399-3265 Thomas F. Gonzalez, Esquire Beggs and Lane Post Office 12950 Pensacola, Florida 32591-2950 Larry McPherson, Executive Director Board of Medicine Department of Health 4052 Bald Cypress Way Tallahassee, Florida 32399-1701 Josefina M. Tamayo, General Counsel Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 Dr. Ana M. Viamonte Ros, Secretary Department of Health 4052 Bald Cypress Way, Bin A00 Tallahassee, Florida 32399-1701
The Issue Whether Respondent, Florida Hospital Orlando (Respondent or FHO), was overpaid by Medicaid for care provided to patients in the amount of $34,644.10, as alleged by Petitioner, Agency for Health Care Administration (Petitioner or AHCA); or, as Respondent maintains, such care was medically necessary and supported by the record presented in this cause. Petitioner also maintains an administrative fine in the amount of $2,000.00 is warranted in this matter and that it is entitled to recover costs associated with the case in the sum of $7,635.27.
Findings Of Fact Petitioner is the state agency charged with the responsibility of monitoring the Medicaid Program in Florida. Centers for Medicare and Medicaid Services (CMS) is the federal agency which administers Medicare, Medicaid, and the State Children's Health Insurance Program. CMS initiated an audit of Respondent’s Medicaid claims and contracted with Booz Allen Hamilton (BAH), a Medicaid Integrity Contractor, to perform the audit. At all times material to the instant audit, Respondent was enrolled as a Medicaid provider, governed by a Medicaid Provider Agreement, and subject to all pertinent Medicaid rules and regulations related to the provision of Medicaid goods and services to Medicaid recipients/patients. Respondent was required to retain records documenting goods and services billed to the Medicaid program for a period of not less than five years. All of the disputed claims occurred within that five-year period. BAH requested medical records pertinent to the claims and FHO produced medical records in response to BAH’s audit. Respondent intended to produce all of its medical records as requested by BAH. Respondent's Medicaid Provider No. was 0010129001. All services provided to Medicaid patients are billed and identified by patient name, date of service, and provider. For purposes of confidentiality, the names of patients are redacted in audit proceedings. All goods and services billed to Medicaid must be medically necessary. If an audit determines that goods or services billed to Medicaid were, in fact, not medically necessary, Petitioner is entitled to recover monies paid as an overpayment claim against the Medicaid provider. The amount of the alleged overpayment is the subject of this proceeding. Before a Medicaid provider is authorized to bill Medicaid for medical goods and services rendered to a patient, several checks are considered. First, the patient must be Medicaid-eligible. There is no dispute that all recipients of care in this case were Medicaid-eligible patients. Second, before an inpatient stay is reimbursable, a Medicaid provider must seek prior authorization. To do so, at all times material to this case, AHCA enlisted the assistance of, and contracted with, KePro South (KePro) to perform utilization management for inpatient hospital services for Medicaid recipients. This meant the Medicaid provider contacted KePro by e-mail through a system known as "I-Exchange." In this case, FHO followed the protocol and requested prior approval for all of the claims at issue that required prior approval. All claims at issue were either approved by KePro or were exempt from the authorization requirement. Petitioner agrees that Respondent followed all of the protocols for approval of claims through the KePro system. Respondent agrees that all claims at issue as identified in the final audit report (FAR) were billed and paid. KePro approval does not mean goods and services billed to Medicaid are, in fact, medically necessary. All patient records for the claims at issue have been re-visited in the course of this case and have been thoroughly debated by doctors for both parties. In summary, AHCA's expert, Dr. Ferdinand Richards, opined that the records for the disputed claims do not support the "medical necessity" for the claims paid by Medicaid. In contrast, Dr. John Busowski and Dr. Ross Edmundson opined that the disputed claims were accurately billed and all care rendered was medically necessary. Medicaid has a "pay and chase" policy of paying Medicaid claims submitted by providers. Audits performed after-the-fact reconcile the amounts paid to providers with the amounts that were payable under the Medicaid guidelines, pertinent rules, and law. The Medicaid provider agreement executed between the parties governs the contractual relationship between FHO and AHCA. The parties do not dispute that the provider agreement, together with the pertinent laws or regulations, control the billing and reimbursement of the claims that remain at issue. The provider agreement pertinent to this case was voluntarily entered into by the parties. Although Respondent claims it could not negotiate the terms of the agreement, it is undisputed that Respondent agreed to be bound by the agreement. Respondent was not obligated to become a Medicaid provider. Any Medicaid provider whose billing is not in compliance with the Medicaid billing policies may be subject to the recoupment of Medicaid overpayments. Medicaid providers are aware that they may be audited. Audits are to assure that providers bill and receive payment in accordance with applicable rules and regulations. Respondent does not dispute Petitioner's authority to perform audits. If services rendered in this case were medically necessary, Petitioner does not dispute the amount billed as accurately reflecting the services. There is no question that Respondent provided the services identified in the disputed claims. For billing purposes, this case centers on three types of billing practices dictated by the medical circumstances of the patient. A Medicaid patient may be treated in an emergency room setting and once the presenting condition is addressed the stay may be considered outpatient, observation, or inpatient depending on the nature of the patient’s illness. Outpatient services may also be appropriate when a patient presents for a scheduled test or procedure. Observation services may be appropriate when additional time is needed to evaluate a patient’s condition. Inpatient care is dictated when the patient requires medical services or treatments because the severity of an illness or condition dictates an intensity of care that could not be provided at a less acute level. The levels of care at issue in this case are defined and specified in the Medicaid Hospital Services Coverage and Limitation Handbook and by Florida Administrative Code Rule. In this case, the disputed claims center on whether the claims were billed at the appropriate level of care. That is, if billed at the inpatient level should the claim have been billed as observation or outpatient? If billed as observation, should the claim have been billed as outpatient? Each disputed claim is listed and explained below. Each claim is described and evaluated based upon the medical documentation available to the treating physician at the time the services were rendered. The expert opinions of the parties’ witnesses have been fully considered and weighed in reaching the findings noted. The first five claims, identified as Adventist-FL-3006, 6, 7, 8, 9 and 11, concerned a three-year-old patient with Acute Lymphocytic Leukemia. The child required five separate intravenous chemotherapy treatments. The five claims ($1,503.04 per day) were billed at an inpatient rate. For each of the claims, the patient’s hospital stay was for less than 24 hours, the patient had no significant complications from the treatments, and was able to return home at the conclusion of the treatment. Based upon the weight of the persuasive evidence in this case, it is determined that these claims should have been billed as scheduled outpatient services. Petitioner is entitled to recoup the difference between the inpatient rate and an outpatient rate for these five claims. The amount of the overpayment is $7,515.20. Claim Adventist-FL-3006-21 concerned a 40-year-old morbidly obese female who went to the hospital emergency room (ER) on July 28, 2007. This patient complained of shortness of breath and chest pains. By history, it was known this patient had bipolar disorder, sarcoidosis, hypertension, and a record of being non-compliant with medications. A pulmonary function test was administered by ER staff and it was discovered the patient was at 50 percent of the expected function level. Although the initial admission to inpatient status was well documented, the record in this case is deficient, and the physicians who reviewed the record could not indicate why a four-day admission was required for this patient. Once the patient was provided a treatment for asthma (including IV steroids) and the evaluation for congestive heart failure proved negative, the patient should have been discharged. Based upon the weight of the persuasive evidence in this case, it is determined that this claim should be discounted to only two days of inpatient stay and not the four days billed. The exact amount of the overpayment for this claim cannot be determined from the evidence but is less than the $5,723.60 claimed by Petitioner. Claim Adventist-FL-3006-22, involved the same patient as described in paragraph 14. Less than two months after the visit described above, the patient returned to the ER with mild wheezing, and the patient was admitted for three days as an inpatient. Given the history of this patient, and the lack of significant change to the presenting symptoms, it is determined that the weight of the persuasive evidence would require this claim to be reduced to two days of observation, not inpatient services. This patient did not have a medical condition to justify a three-day stay. It may have been that the patient needed a place to stay, and her shortness of breath was a convenient excuse for her to seek medical attention; in any event, she did not have a medical condition of the acuity requiring a multi-day inpatient stay. Respondent does not turn patients away. Nevertheless, Medicaid does not provide for housing of patients who need care other than to meet medical needs. It is undoubted Respondent provided a meaningful service to this patient, but the level of medical care is not supported by the record in this case. AHCA is entitled to recover $2,717.52 for this claim. The next disputed claim, Adventist-FL-3006-30, concerned a 31-year-old male who went to the ER after having thrown-up blood. The patient reported a history of blood in his stools and gastro-esophageal reflux disease. Although the patient’s vital signs were normal, and there was no evidence of bleeding in the ER, the patient was admitted to the intensive care inpatient unit (ICU) and monitored. After a period of time in the ICU, it was noted that the patient’s hemodynamic was stable and he was moved to a “step down” inpatient room. The weight of the persuasive evidence would require this claim to be reduced to two days of observation services not the two days of inpatient billed. The record does not support any acuity requiring intensive care services. Moreover, the endoscopy resulted in normal findings. Had the endoscopy been performed on admission, the normal findings could have ruled out the need for inpatient services. In this case, the treating physician did not think the patient’s condition required an emergency endoscopy. Based upon that determination and the patient’s normal hemoglobin and hematocrit, it was unlikely the patient required more than observation. Giving Respondent the benefit of the doubt with regard to this claim, and assuming this patient required more care than observation to rule out a more acute illness, that determination could have easily been concluded within a one-day inpatient stay. AHCA accepts a two-day observation stay for this patient thereby reducing the overpayment to $2,716.18 for this claim. Adventist-FL-48 claim was a 44-year-old male who, while working on a ladder, touched a live electrical wire. This patient was taken by rescue squad to the ER and presented with atrial fibrillation. The patient was admitted to inpatient status, and it was recommended he be given a full cardiac work- up. At some point during his ER stay, and prior to the cardiac testing, the patient returned to a normal cardiac rhythm. Against the recommendation of medical staff, the patient left the hospital. Approximately three days later this patient returned to the ER and requested the cardiac testing he had declined on his prior visit. When he returned, the patient had a normal heart rhythm, had no other symptoms to suggest a cardiac irregularity, and had normal vital signs. Instead of billing the cardiac testing as outpatient services, the patient was admitted for inpatient status and given the full complement of cardiac tests to rule out any adverse cardiac condition resulting from the electrical shock. The weight of persuasive evidence supports that the testing should have been given with this patient in an outpatient status. There was no medical instability supporting a more acute setting for the testing that was done. The overpayment for this claim is $1,503.04. The patient described in Adventist-FL-78 claim was a 63-year-old female who went to the ER with stomach discomfort, nausea, and headache. It was feared the patient was in a cardiac-related condition as the patient had multiple risk factors including atrial fibrillation. By history, the patient had suffered a heart attack in the recent past, and the ER physician rightly admitted the patient for inpatient care to perform a cardiac work-up and to rule out any cardiac event. The inpatient stay was for a 24-hour period so that the testing could be concluded. The weight of persuasive evidence supports this stay. Respondent has shown the medical necessity for the treatment provided for this patient. Adventist-FL-96 claim concerned a patient with a significant bone marrow disorder similar to leukemia. The patient had had a bone marrow transplant. Upon admission to the hospital he suffered nausea, vomiting, and abdominal pain. He was admitted for a one-day inpatient stay and treated for dehydration. He was given a white blood count test and once stabilized was discharged (within 24 hours) with the recommendation that the patient return to his regular provider in Tampa. The weight of persuasive evidence supports this stay. Respondent has shown the medical necessity for the treatment provided for this patient. The patient in Adventist-FL-98 claim was a 45-year-old male with a history of Chronic Obstructive Pulmonary Disease (COPD), smoking, and alcohol abuse. The patient had a history of hospitalizations related to COPD and upon admission complained of shortness of breath. At the time of admission, the patient had normal vital signs, acceptable oxygen saturation levels, no wheezing, and a chest x-ray that showed no acute abnormalities. The weight of persuasive evidence supports the finding that a level of care of observation, and not inpatient, was the correct level Respondent should have billed for this patient. The patient had no medical acuity to support a one-day inpatient stay. AHCA is entitled to recover the overpayment in the amount of $1,358.09. AHCA no longer disputes Adventist-FL-154 claim. Consequently, the overpayment associated with the audit must be reduced by $3,856.68. It is determined Respondent accurately billed for this claim. Similarly, Respondent no longer disputes claims Adventist-FL-155-156. These claims should have been billed as observation, not inpatient stays. Accordingly, Petitioner is entitled to recover the overpayment associated with these claims in the amount of $2,672.98. The patient associated with Adventist-FL-180 claim was a 53-year-old female with a history of breast cancer and metastatic disease. On the date of her admission, she had had radiation therapy. She suffered nausea and vomiting and presented to the ER. She received an IV of fluids and IV Zofran, felt better, and left the hospital against medical advice. In total, the patient was in the hospital approximately three hours or less. The claim billed her admission as inpatient. This claim should have been billed as observation. Accordingly, the weight of persuasive evidence supports that an overpayment occurred with regard to this claim. Petitioner is entitled to recover the difference between inpatient and observation for this patient. The amount of the overpayment is unknown. With regard to Adventist-FL-230 claim, this patient was a 58-year-old male complaining of shortness of breath with a history of atrial fibrillation. The patient was admitted for a five-day inpatient admission. Respondent was paid for a four-day inpatient stay because that length of stay was approved by KePro. Petitioner disputes that an inpatient stay was required. The weight of persuasive evidence supports an inpatient stay of three days. The patient had stabilized, testing had been completed, and there was no significant medical basis for an inpatient stay beyond that point. The amount of the overpayment is unknown as the audit sought reimbursement at an observation rate. Although not entitled to the four days of inpatient as billed for this patient, Respondent has established it was entitled to a three- day inpatient compensation based upon the medical necessity established for this patient. Respondent, and other providers may adjust Medicaid billings after-the-fact to conform to medical necessity for any claim filed. In this case, Respondent did not review its claims once KePro approval had been secured. That is to say, if the KePro approval was documented, Respondent did not question the claim for medical necessity once treatment was given. Billings were adjusted to conform to KePro approval, but were not questioned or re-visited as to whether the appropriate level of acuity was documented. Petitioner asserts that Respondent failed to submit the complete medical records for Adventist-FL-98 claim until after the audit was issued. Respondent’s response that it provided all medical records timely to the auditor, BAH, is accepted. It is unlikely the records of one claim would have been omitted from the hundreds of pages of records given to the auditor. BAH conducted their audit over an extensive period of time. The Interim Audit Report was issued on October 4, 2010. The overpayment at that time was alleged to be $42,848.29. That amount was also noted in the FAR dated November 16, 2010. Concurrent with the FAR, Petitioner announced its intention to impose sanctions against FHO. The July 20, 2011, audit report reduced the overpayment to $38,790.68, but again claimed Petitioner was entitled to impose sanctions. The June 12, 2012, audit report further reduced the overpayment to $38,500.78. Subsequent to the hearing, Petitioner acknowledged that the overpayment should be reduced another $3,856.68 to $34,644.10. Petitioner incurred investigative and legal costs in connection with this case in the amount of $7,635.27. Respondent has not challenged the reasonableness of that amount. Petitioner seeks sanctions against Respondent in the amount of $2,000.00. Respondent submitted records to BAH for 285 claims that had to be reviewed. Of that total, only those claims addressed above remain at issue. Ninety-four percent of the claims reviewed/audited by BAH were resolved without dispute.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency for Health Care Administration enter a Final Order adjusting the recoupment for the Medicaid overpayment as indicated in the foregoing findings of fact, imposing a sanction in the amount of $500.00, and recovering its costs in the amount of $7,635.27. DONE AND ENTERED this 4th day of September, 2013, in Tallahassee, Leon County, Florida. S J. D. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 4th day of September, 2013. COPIES FURNISHED: John D. Buchanan, Jr., Esquire Henry, Buchanan, Hudson, Suber, and Carter, P.A. Post Office Drawer 14079 2508 Barrington Circle (32308) Tallahassee, Florida 32317-4079 David W. Nam, Esquire Agency for Health Care Administration Fort Knox Building 3, Mail Stop 3 2727 Mahan Drive, Suite 3431 Tallahassee, Florida 32308 Richard Shoop, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308 Elizabeth Dudek, Secretary Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 1 Tallahassee, Florida 32308 Stuart Williams, General Counsel Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308
The Issue The issue in this case is whether the Respondent, Agency for Health Care Administration, is liable to Petitioner, Miriam Lara, M.D., for attorney's fees and costs pursuant to Section 57.111, Florida Statutes, and, if so, the amount of attorney's fees and costs Petitioner should be awarded.
Findings Of Fact Respondent, the Agency for Health Care Administration (hereinafter referred to as the "Agency"), is the agency of the State of Florida responsible for the administration of the Federal government's Medicaid program in Florida. Section 409.907, Florida Statutes. One of the duties imposed upon states in order to participate in the Medicaid program is the duty to terminate any approved Medicaid provider where the provider has been "convicted" of certain types of crimes. See Social Security Act, Section 1128(a)(1), 42 U.S.C. Section 1230a-7. In particular, 42 U.S.C. Section 1230a-7(a)(1) requires the mandatory exclusion from the Medicaid program of any individual or entity that has been "convicted" of a program- related crime: Any individual or entity that has been convicted of a criminal offense related to the delivery of any item or service under subchapter XVII of this chapter or under any State health care program. For this purpose, the term "convicted" is defined to include "participation in a . . . deferred adjudication, or other agreement or program where judgement of conviction has been withheld." 42 U.S.C. Section 1230a-7(i)(4). Petitioner, Dr. Miriam Lara, is a licensed medical doctor and an approved Medicaid provider in the State of Florida. On January 20, 1998, Dr. Lara was indicted for "Organized Fraud and Medicaid Fraud." A copy of the Arrest Warrant, Respondent's Exhibit 9, was provided to the Agency shortly after Dr. Lara's arrest putting the Agency on notice of the charges against her. On or about November 30, 1998,1 Dr. Lara entered into a "Deferred Prosecution Agreement and Speedy Trial Waiver" (hereinafter referred to as the "DPA") which was filed in the Circuit Court of the Eleventh Judicial Circuit of Florida, in and for Dade County. Dr. Lara agreed, in part, to the following in the DPA: I, [sic] understand that I have been tentatively accepted as a participant in the Pretrial Diversion Program, and that the charges against me will not be prosecuted so as [sic] long as I am a program participant in good standing and that my case will not come to trail during that time. While it is clear from the DPA that the charges against Dr. Lara were not to be prosecuted so long as she participated in the program, the DPA does not specifically state that the charges would be dropped if she completed the program. Although the DPA is not specific, the Office of the Statewide Prosecution and Dr. Lara intended, when they entered into the DPA that the charges would be completely dropped if Dr. Lara completed the Pretrial Diversion Program. On April 20, 1999, after Dr. Lara successfully completed the pretrial program,2 the Office of Statewide Prosecution nolle prossed all charges pending against her. In early 1999 the Agency became aware that Dr. Lara had entered into and completed some type of "pretrial program." Ellen Williams, a Medicaid/Healthcare Program Analyst for the Agency, was notified that Dr. Lara had completed what Ms. Williams understood to be a "pretrial intervention program." The Agency, through Ms. Williams, also became aware of the disposition of Dr. Lara's case some time during 1999. Ms. Williams was provided with a copy of a disposition record for Dr. Lara's case from the Clerk of the Circuit and County Court of the Eleventh Judicial Circuit of Florida. That disposition record, Respondent's Exhibit 11, states that the charges against Dr. Lara had been "NOLLE PROS . . ." on April 20, 1999. The Agency, through Ms. Williams, believed that all pretrial programs involved a program through which an individual charged with a crime could, by participating in the program, avoid being adjudicated "guilty" of the charged offense. Because the information contained on the disposition record provided to Ms. Williams indicated that the charges had been nolle prossed and, this appeared to be inconsistent with the Agency's belief that all pretrial programs result in adjudication being withheld, Ms. Williams attempted to find out precisely what had happened to the criminal charges against Dr. Lara. Ms. Williams first telephoned and spoke with Assistant Attorney General Hugo Acebo, whom she understood to be an attorney, about the matter. Ms. Williams was told by Mr. Acebo that Dr. Lara had entered into some type of pretrial program and that she had successfully completed the program. Ms. Williams did not recall being told by Mr. Acebo that the charges against Dr. Lara had been dropped. Nor did she recall being told that any plea had been entered by Dr. Lara or adjudication on the charges had been withheld. Consistent with the Agency's belief about the nature of pretrial programs, Ms. Williams assumed that Dr. Lara, by successfully completing the pretrial program, had merely avoided being adjudicated guilty of the offenses for which she had been charged. Ms. Williams did not understand that the charges against Dr. Lara had been dropped. On October 12, 1999, a Case Closing Report on Miriam Lara, M.D. (hereinafter referred to as the "Closing Report"), Case No. 04-96-03-0016, was issued by the Office of the Attorney General, Medicaid Fraud Control Unit, Fort Lauderdale Bureau. In pertinent part, the Closing Report states the following: According to Assistant Attorney General Hugo Acebo, Dr. Lara entered into a pretrial intervention (PTI) program, which she successfully completed in April 1998. The charges against her were then dropped. . . . (Emphasis added). Ms. Williams received a copy of the Closing Report. The Agency, therefore, had actual notice that the charges against Dr. Lara had been dropped, but Ms. Williams continued to incorrectly believe that, because the Closing Report indicated that Dr. Lara had entered into a "pretrial intervention (PTI) program, which she successfully completed . . . " she had been "convicted" of a criminal offense that is Medicaid program- related, consistent with the Agency's incorrect understanding of pretrial programs. Marie del Carmen Calzone, Esquire, who represented Dr. Lara at the time, spoke to Ms. Williams at least three times after the charges against Dr. Lara had been dropped. Ms. Calzone explained to Ms. Williams that the charges had been nolle prossed or dropped, that Dr. Lara had not entered any adverse plea to the charges, that "adjudication had not been withheld," and that Dr. Lara had not, therefore, been "convicted." Ms. Williams, however, incorrectly insisted that, because Dr. Lara had engaged in a pretrial program and successfully completed it, she had been "convicted" as that term is defined for Medicaid purposes. Based upon Ms Williams' understanding of the Agency's interpretation of the pertinent law, Ms. Williams drafted a letter notifying Dr. Lara that her participation in the Florida Medicaid program was being terminated (hereinafter referred to as the "Termination Letter"). The Termination Letter indicates that the decision to terminate Dr. Lara's participation in the Medicaid program was based upon the following: The Agency for Health Care Administration has received information from the Attorney General, Office of Statewide Prosecution that indicates the following: You were indicted on January 20, 1998, for Organized Fraud and Medicaid Fraud. On November 20, 1998, you entered into a pretrial intervention program, which resulted in a nolle prosequi of the charges. The Social Security Act at section 1128(a)(1) provides for the mandatory exclusion from participation in the Medicaid program of any individual or entity convicted of a criminal offense that is program-related. Section 1128(I)(4) defines convicted to include "when the individual or entity has entered into participation in a first offender, deferred adjudication, or other arrangement or program where judgment of conviction has been withheld." Section 1902(p)(1) of the Social Security Act provides for state authority to take action to exclude providers from the Medicaid program for the reasons cited in section 1128. The Termination Letter was signed on or about April 13, 2001, almost two years after the charges against Dr. Lara had been nolle prossed. The Termination Letter was provided to Dr. Lara. Dr. Lara disputed the Agency's proposed action to terminate her participation in the Medicaid program and filed a Petition for Formal Hearing Pursuant to Section 120.569, Fla. Stat. (2001) and Petition for Other Relief Under Fla. Stat. and F.A.C. (hereinafter referred to as the "Petition for Formal Hearing"). The Petition for Formal Hearing was filed with the Division of Administrative Hearing on July 13, 2001. The matter was styled Miriam Lara, M.D. vs. Agency for Health Care Administration, and designated DOAH Case No. 01-2789. On September 18, 2001, realizing that Dr. Lara had not been "convicted" of any charges, the Agency filed a Notice of Withdrawal of Final Agency Action in the Underlying Case. Consequently, an Order Closing File was entered the same day, canceling the scheduled final hearing of the Underlying Case and closing the file of the Division of Administrative Hearings. As stipulated to by the parties, the Agency is an "agency" as defined in Section 57.111, Florida Statutes; the Agency initiated an administrative proceeding against Dr. Lara; the Agency was not a nominal party; and Dr. Lara, a "small business party" as defined in Section 57.111, Florida Statutes, was the "prevailing party" in the Underlying Case by virtue of the filing of the Notice of Withdrawal of Final Agency Action. The amount of reasonable attorney's fees incurred by Dr. Lara in the Underlying Case exceed $15,000.00. On November 26, 2001, Dr. Lara filed a Renewed Petition to Determine Amount of Attorney Fees and Costs Pursuant to Section 57.111, Fla. Stat. (2001) and Other Relief Under Fla. Stat. and F.A.C. (hereinafter referred to as the "Renewed Petition"). An Attorney Fee Affidavit has been attached to the Renewed Petition in which it is represented that attorney's fees in the amount of $18,279.50 were reasonably incurred in the Underlying Case, but also recognizing that fees and costs are capped at $15,000.00 under Section 59.111(4)(d)2., Florida Statutes. The Renewed Petition was designated Case No. 01-4669F. The pertinent information available to the Agency at the time it sent the Termination Letter to Dr. Lara included the following: Dr. Lara had been charged with criminal offenses that are program related in January 1998; Dr. Lara entered into a "Deferred Prosecution Agreement" in November 1998; Dr. Lara successfully completed the pretrial diversion program. At no time did she enter any plea to the charges and, therefore, there was no adjudication on the charges; and As a consequence of having completed the pretrial diversion program, all charges against her were dropped in 1999. All information necessary to determine that Dr. Lara had not been "convicted" of charges related to the Medicaid program was available to the Agency before action was taken to terminate her participation in the Medicaid program.
The Issue The issues in this case are whether Respondent violated section 409.913 and applicable Medicaid rules by failing to document that three of its employees had all required trainings and by failing to provide daily resident attendance logs, as alleged in Petitioner's Sanction Notice, and, if so, the penalty that should be imposed.
Findings Of Fact The Parties Petitioner, Agency for Health Care Administration, is the state agency responsible for administering the Florida Medicaid Program pursuant to chapter 409. Petitioner's duties include operating a program to oversee the activities of Medicaid recipients, providers and their representatives, to ensure that fraudulent and abusive behavior and neglect of recipients occur to the minimum extent possible, and to recover overpayments and impose sanctions as appropriate. § 409.913(1), Fla. Stat. Respondent, Merry Star, Inc., is a Medicaid provider providing home-based and community-based services to the developmentally disabled in a residential rehabilitation setting. Respondent has been enrolled as a Medicaid provider since 2004. Currently, Respondent's facility has six clients. Petitioner's Inspection of Respondent's Facility On June 2, 2011, a team from Petitioner's Inspector General's Office, Bureau of Medicaid Program Integrity ("MPI"), consisting of Ms. Ribera, Ms. Solomon, and another employee, conducted an unannounced on-site inspection of Respondent's facility to review Respondent's employee records and resident files for compliance with applicable Medicaid program requirements. Specifically, the team reviewed the records of four of Respondent's employees to determine whether Respondent documented that the employees received trainings in Core Competency, HIV/AIDS, Infection Control, and Cardiopulmonary Resuscitation, as required by the Florida Medicaid Developmental Disabilities Waiver Coverage and Limitations Handbook, May 2010 ("Handbook").3/ The team also reviewed the employee records to determine whether Respondent documented that its employees had undergone the level 2 security background screening required for employment at Respondent's facility.4/ The team also reviewed Respondent's residents' files to determine whether Respondent complied with the Medicaid services rendition documentation requirements established in the Handbook. Employee Records The team determined that Respondent's records did not contain documentation showing that employee Sammy Bruton had undergone level 2 security background screening. Ms. Deravile testified that Mr. Bruton had undergone level 2 security background screening in 2009. She acknowledged that this documentation was not in Respondent's files when Petitioner conducted the inspection, and that Respondent did not provide the documentation to Petitioner at any time before the hearing. She provided documentation of this screening as a late-filed exhibit at the hearing.5/ The team also determined that the files lacked documentation showing that employee Aniece Guillaume was trained in Core Competency, HIV/AIDS, and Infection Control, and documentation showing that employee Willio Deravile was trained in First Aid, Health and Well-being, and Infection Control. Ms. Deravile disputed that the documentation showing Ms. Guillaume's HIV/AIDS training was not in the file, but conceded that at the time of the inspection, Ms. Guillaume's Core Competency Training was not current, and Mr. Deravile's First Aid Training and Infection Control Training were not current. Accordingly, Respondent's employee files did not contain the required documentation of these trainings.6/ Residents' Daily Attendance Logs The team inspected Respondent's residents' files to verify whether the residents were present at the facility each day to receive the services for which Respondent billed the Medicaid program. The team determined that Respondent's files did not contain any completed daily attendance logs showing that the residents actually had been present at the facility on the days for which Respondent had billed. Ms. Ribera testified, and Ms. Deravile confirmed, that Respondent subsequently provided the completed daily attendance logs to Petitioner. Ms. Deravile acknowledged that these logs were completed after the inspection, rather than contemporaneously with Respondent's rendition of the services. However, she testified that she did not realize that daily attendance logs were required to be completed for each resident, and that Respondent instead kept daily Medication Administration Records ("MARs") and Individual Daily Health and Safety Records ("IDHSRs") for each resident. MARs are forms on which Respondent records all medications given to its residents, at the time the medication is given, on a daily basis. IDHSRs are forms on which Respondent records specific information, such as liquid and food intake and other personal information, for each resident on a daily basis.7/ Ms. Deravile posited that because the MARs and IDHSRs were completed contemporaneously with rendition of services on a daily basis, they demonstrated that the residents were in attendance at Respondent's facility on a daily basis, and therefore functioned as daily attendance logs. Ms. Deravile testified that Respondent completed and submitted the daily attendance logs to Petitioner after the inspection because she had learned, during the inspection, that Petitioner required such logs to be kept. She used the information in the MARs and IDHSRs to complete the daily attendance logs provided to Petitioner. Ms. Deravile acknowledged that she did not provide the MARs or IDHSRs to Petitioner during the inspection or at any time prior to the hearing. Petitioner's rules, including the Handbook, do not prescribe a particular form that must be used as a daily attendance log. Petitioner does not provide a specific form to providers for use as a daily attendance log. The undisputed evidence established that Respondent had not previously been charged with, or been determined to have committed, any violation of Medicaid law.
Recommendation Based on the foregoing Findings of Fact and Conclusions of law, it is hereby RECOMMENDED that pursuant to Florida Administrative Code Rule 59G-9.070(7)(e), Respondent should be fined a total of $4000 for four first offense violations of Florida's Medicaid laws. DONE AND ENTERED this 26th day of January, 2012, in Tallahassee, Leon County, Florida. S Cathy M. Sellers Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 26th day of January, 2012.
The Issue Is the practice of Respondent, Agency for Health Care Administration (Agency), limiting Medicaid reimbursement for services provided to undocumented aliens determined by the Department of Children and Families (DCF) to be eligible for Medicaid services for the duration of a medical emergency an "agency statement of general applicability that implements, interprets, or prescribes law or policy or describes the procedure or practice requirements of an agency"1/ that section 120.54, Florida Statutes (2014),2/ requires the Agency to adopt as a rule? Are Agency rules 59G-4.160(2) and 59G-5.020 invalid because they exceed the Agency's delegated authority and contravene the statute which the rule implements?3/ & 4/
Findings Of Fact The Parties Title XIX of the Social Security Act establishes Medicaid as a collaborative federal-state program in which the state receives federal financial participation (FFP) from the federal government for services provided to Medicaid-eligible recipients in accordance with federal law. The state also provides funding for the Medicaid program. Section 409.902(1) designates the Agency to administer Florida's Medicaid program. The program provides medical care for indigent people in Florida. Federal and state laws, federal regulations, and state rules, including Medicaid handbooks incorporated by reference into the rules, govern eligibility for, participation in, and payment by the program. The Hospitals are acute care hospitals enrolled as providers in the Florida Medicaid program that provide emergency medical services. They have obtained, and intend to seek in the future, Medicaid compensation for emergency services provided to undocumented aliens. To participate in the Medicaid program, the Hospitals have agreed to a Medicaid Provider Agreement with the Agency. The agreement governs the terms under which the Medicaid program will compensate hospitals for services provided to individuals. Those terms include multiple state and federal statutes and rules discussed below. The Agency makes payments to Hospitals subject to its right to later audit the claims for payment and recoup payments if the Agency determines that they were not authorized. The Medicaid Program and Undocumented Aliens Until 2010 Federal law prohibits compensating a state through federal financial participation under the Medicaid program "for medical assistance furnished to an alien who is not lawfully admitted for permanent residence or otherwise permanently residing in the United States under color of law [undocumented aliens]." 42 U.S.C. § 1396b(v)(1). It permits federal financial participation for services provided to otherwise eligible undocumented aliens that "are necessary to treat an emergency medical condition as defined in paragraphs (b)(1) and (c)," if the individual otherwise meets the conditions for participation in the Medicaid program. 42 C.F.R. § 40.255(a). See also 42 U.S.C. § 1396b(v)(2). For purposes of eligibility of undocumented aliens, 42 U.S.C. § 1396b(v)(3) defines "emergency medical condition" as: medical condition (including emergency labor and delivery) manifesting itself by acute symptoms of sufficient severity (including severe pain) such that the absence of immediate medical attention could reasonably be expected to result in-- (A) placing the patient's health in serious jeopardy, (B) serious impairment to bodily functions, or (C) serious dysfunction of any bodily organ or part. Florida statutes and rules, with minor variations, incorporate the federal standards limiting the eligibility of undocumented aliens to treatment for emergency medical conditions. Federal laws and regulations do not impose a defined endpoint or quantitative limit on the duration of the eligibility due to the emergency medical condition. Sections 409.902 and 409.904 address Medicaid services for undocumented aliens. Section 409.904(4) establishes the criteria for the limited Medicaid eligibility of undocumented aliens. Section 409.902(1) designates the Agency "as the single state agency authorized to make payments for [Medicaid services]." Section 409.902(1) makes [DCF] "responsible for Medicaid eligibility determinations." Section 409.902(2) restricts Medicaid eligibility to United States citizens and lawfully admitted noncitizens who meet the Medicaid eligibility criteria for "qualified noncitizens" for temporary cash assistance.5/ Section 409.902(2)(b) limits use of state funds to provide medical services to individuals who do not meet the requirements of the subsection. It permits an exception for use of state funds to provide medical services that are necessary "to treat an emergency medical condition." The Florida Medicaid Hospital Services Coverage and Limitations Handbook, June 2011 (Hospital Handbook), incorporated by reference into the Agency's rule 59G-4.160(2), states on page 2-7 the limits on reimbursement for services provided undocumented aliens as follows: The Medicaid Hospital Services Program reimburses for emergency services provided to aliens who meet all Medicaid eligibility requirements except for citizenship or alien status. Eligibility can be authorized only for the duration of the emergency. Medicaid will not pay for continuous or episodic services after the emergency has been alleviated. The Florida Medicaid Provider General Handbook, 2012 (Provider Handbook), incorporated by rule 59G-5.020, repeats this limitation. Earlier versions of the Handbooks have essentially the same requirements and limitations. Section 409.904(4) authorizes DCF to find an undocumented alien eligible for Medicaid, but limits the duration of the eligibility for undocumented aliens. It states: A low-income person who meets all other requirements for Medicaid eligibility except citizenship and who is in need of emergency medical services. The eligibility of such a recipient is limited to the period of the emergency, in accordance with federal regulations. From 2005 to 2012, the definitions of section 409.901 for "emergency medical condition" and "emergency services and care" have remained unchanged, although the subsection numbering for them has changed. "Emergency medical condition" is defined as: A medical condition manifesting itself by acute symptoms of sufficient severity, which may include severe pain or other acute symptoms, such that the absence of immediate medical attention could reasonably be expected to result in any of the following: Serious jeopardy to the health of a patient, including a pregnant woman or a fetus. Serious impairment to bodily functions. Serious dysfunction of any bodily organ or part. With respect to a pregnant woman: That there is inadequate time to effect safe transfer to another hospital prior to delivery. That a transfer may pose a threat to the health and safety of the patient or fetus. That there is evidence of the onset and persistence of uterine contractions or rupture of the membranes. "Emergency services and care" are defined as: [M]edical screening, examination, and evaluation by a physician, or, to the extent permitted by applicable laws, by other appropriate personnel under the supervision of a physician, to determine whether an emergency medical condition exists and, if it does, the care, treatment, or surgery for a covered service by a physician which is necessary to relieve or eliminate the emergency medical condition, within the service capability of a hospital. DCF's Emergency Medical Services for Aliens, rule 65A-1.715, provides: Aliens who would be eligible for Medicaid but for their immigration status are eligible only for emergency medical services. Section 409.901(10), F.S., defines emergency medical conditions. The Utilization Review Committee (URC) or medical provider will determine if the medical condition warrants emergency medical services and, if so, the projected duration of the emergency medical condition. The projected duration of the emergency medical condition will be the eligibility period provided that all other criteria are continuously satisfied. Emergency services are limited to 30 consecutive days without prior approval. For continued coverage beginning with the 31st day prior authorization must be obtained from the Agency for Health Care Administration (Medicaid Program Office). DCF's rule 65A-1.702(2)(c), implementing Title XIX, in its provisions for establishing a patient's date of eligibility, states: "Coverage for individuals eligible for the Emergency Medicaid for Aliens program begins the first day of a covered emergency and ends the day following the last day of the emergency medical situation." Until July 1, 2010, neither DCF nor the Agency had a system, procedure, or practice for determining when the duration of an undocumented alien's emergency ended or when the emergency was alleviated, other than the initial determination of eligibility. DCF's consistent practice was to make its eligibility determination based upon a review of the information provided by healthcare providers on DCF Form 2039 after discharge of the patient. The providers usually provided additional information and documents, including information about the diagnosis and treatment and the projected or actual duration of the emergency. DCF's practice, since 2002, has been to routinely accept the information and documents submitted by the provider and base the eligibility determination on them. DCF's consistent practice was to not allow providers to submit any documentation until after the patient was discharged. Consequently, the information upon which DCF based its eligibility determination for undocumented aliens was actual, not projected. DCF notifies providers of the eligibility decision by sending a completed DCF Form 2039 or making the information available online. The information contains the specific period of eligibility for the undocumented alien, including the beginning and ending date of the eligibility period. This is the duration of the emergency medical condition. Until July 1, 2010, under previous administrations, the Agency did not make any consistent or meaningful effort to determine if the services for which a hospital billed Medicaid were for the emergency medical conditions that were the predicate for DCF's determination of emergency eligibility. The Agency's automatic process for reviewing Medicaid claims kicked out claims for services to undocumented aliens eligible because of an emergency medical condition. These claims were manually reviewed by just two nurses. The system allowed two choices, "approve" or "deny." Sometimes the nurses reviewed requests for Medicaid reimbursement from providers solely to determine if the services provided were medically necessary. This is the same standard used to determine if Medicaid will pay for services provided to citizens and documented aliens. The process and the number of claims overwhelmed the two nurses conducting the review. A huge claims backlog developed. This resulted in the review becoming more minimal and intermittent. Hospitals complained about the resulting payment delay. The Agency worried about it, too. On September 9, 2009, Dyke Snipes, deputy director of Medicaid, released all the backlogged claims for payment without review. Later, he sent the hospitals a memorandum stating the claims would be paid without further review subject to later audit and claims for recoupment. However, from July 1, 2005, through June 30, 2010, the Agency did not audit any of the claims for payment for hospital services provided to undocumented aliens. In 2002, as required by statute, the Agency began a prior authorization program for Medicaid inpatient hospital services. The purpose was to determine, before payment, if services were medically necessary. The Agency contracted with KePRO to perform the prior authorization reviews for medical necessity. In the case of services to undocumented aliens, the prior authorization review and medical necessity determination was not made, despite the name, until the patient was discharged. The Agency's Bureau of Medicaid Services performed a separate review of claims for payment of services to undocumented aliens to determine if the services were for the treatment of an emergency medical condition. The Bureau conducted this review after the Department had determined that the patients were eligible for Medicaid and after KePRO had authorized the services. Nurses employed by the Agency reviewed the claims and accompanying records to determine if the services were for treatment of an emergency medical condition. The review did not include judgments about the number of days appropriate for treatment, the relationship between services provided, and the emergency or the duration of the emergency. Before July 1, 2010, the Agency, to the extent that it did anything, implemented and applied the rule, statute, and regulation provisions permitting payment for emergency medical services to eligible undocumented aliens by paying claims for the period of eligibility determined by the Department for services that KePRO determined were medically necessary and that the Bureau had determined to be necessary for treatment of an emergency medical condition. The Agency did not conduct a targeted review to determine when the emergency ended or when the emergency was alleviated. Altogether, the Agency was just not enforcing the statutory and rule limitations upon payment for emergency medical services to persons that DCF determined eligible. Federal Audit Eventually, Florida's failure to enforce the limitations came to the attention of the federal government. On August 25, 2009, the federal Centers for Medicare and Medicaid Services (CMS) presented the Agency with the report of its Financial Management Review of Florida's Medicaid Payments for Emergency Services to Undocumented Aliens. The transmittal letter asked Florida "to retroactively review claims for emergency medical services provided to undocumented aliens for proper eligibility determinations. We will defer these claims until the State has reviewed the claims." The federal government said that payment of the FFP to Florida for emergency medical services for undocumented aliens was in question, but it would delay deciding while Florida conducted the requested review. In plainer words, the federal government said it would hold up on recouping FFP paid for services to undocumented aliens. CMS "determined that the Agency for Health Care Administration (AHCA) claimed Federal Financial Participation (FFP) for emergency services to beneficiaries that did not meet the Federal Definition of undocumented alien. In addition, AHCA claimed FFP for additional medical services that did not qualify as emergency care after the patient was stabilized." Finding number 2 of the report stated: "AHCA is claiming FFP for emergency medical services to undocumented aliens provided beyond what Federal statutes and regulations define to be an emergency." Recommendation number five stated: AHCA should review all emergency services for undocumented alien amounts claimed for FFP during Federal Fiscal Years 2005, 2006 and 2007 and re-determine allowability of these claims utilizing the required Federal criteria. Based on this review and re-determination, AHCA should revise previous FFP amounts claimed on the Form CMS-64 quarterly statement of expenditures report to reflect only emergency services to undocumented aliens (supported by SAVE and IVES research) up to the point of stabilization. Upon completion, please report the results of your review to CMS. Recommendation number 6 stated that: "AHCA [should] promptly implement the necessary system edits so that services provided as emergent care can be differentiated from services provided after the point the patients are stable, and then bill to the proper Federal programs."6/ The audit identified the Agency's electronic claims system's lack of system edits needed to account and separate claims for costs incurred "during emergent care and costs past stabilization" as a contributing factor. CMS concluded that it believed Florida's claims for payment for emergency medical services were "significantly overstated." The report stated: "During our review, we found that AHCA is claiming costs for emergency services for undocumented aliens, during the patients' entire hospital stay, and beyond the emergency or stabilization point as defined by Federal statutes and regulations." It asked Florida to conduct "re-reviews of claims for emergency medical services provided undocumented aliens." CMS did not recommend that Florida change its statutes or rules governing Medicaid eligibility of undocumented aliens. It only recommended that Florida enforce existing law. In September 2010, the Office of Inspector General for the United States Department of Health and Human Services released its "Review of Medicaid Funding for Emergency Services Provided to Nonqualified Aliens [by Florida]." This review observed that the Agency "relied upon two medical staff to review approximately 4,000 such claims per month, and this limited review was not sufficient to prevent some unallowable claims from being paid." The review also noted the problem with the system edits that the Agency was using. The system just identified claims for services to undocumented aliens and kicked them out for review by the two nurses who were not capable of properly reviewing the claims because of the overwhelming volume. The review observed that the system had an edit which could classify claims under five options: emergency, urgent, elective, newborn, and information not available. The review stated: "If active, this edit may have ensured that the State Agency properly claimed Federal reimbursements." The audit and the review, as well as the testimony of Johnnie Shepherd, the Agency administrator, convincingly establish that up to 2010, the Agency was not applying or enforcing federal or Florida statutory and rule requirements limiting medical services to undocumented aliens for emergency conditions. The Agency Reacts to the Audit and Review The Agency began working to implement the recommendations. KePRO presented a proposal to expand the scope of its services that it described in this fashion: It is our understanding that the Agency for Health Care Administration used internal resources to conduct such [emergency care for undocumented aliens] reviews. Previously, cases were authorized for payment using medical necessity criteria verses [sic] "point of stabilization." Approximately 12,000 cases dating back to 2006 fall into this category. This presents the Agency with an opportunity to recoup payments for hospital days that exceeded the "point of stabilization." The Agency amended its contract with KePRO to include review of claims for emergency services to undocumented aliens to determine if the services continued beyond the duration of the emergency. The Agency and KePRO began the review process. The requirements are included in the Agency's contracts with KePRO's successor, eqHealth Solutions. The Agency began advising providers of the coming changes in review and authorization of Medicaid services for undocumented aliens. The Agency's campaign incorporated use of "stabilization" from the CMS reviews. "Stabilization" did not appear in any pertinent Florida statutes or rules. A July 1, 2010, letter to all Medicaid providers from the chief of the Bureau of Medicaid Services advised of upcoming changes to the Agency's procedure and practice for reviewing claims for undocumented aliens. It is representative of the Agency's approach. The letter stated: Beginning July 1, 2010, the Keystone Peer Review Organization (KePRO), Medicaid's contractor for utilization management of inpatient services, will implement revised review processes for inpatient admissions for undocumented aliens. KePRO will review these requests to determine whether conditions requiring hospitalization are an emergency, defined in 42 CFR 440.255 as follows: The sudden onset of a medical condition (including emergency labor and delivery) manifesting itself by acute symptoms of sufficient severity (including severe pain) such that the absence of immediate medical attention could reasonably be expected to result in: Placing the patient's health in serious jeopardy; Serious impairment to bodily functions; or Serious dysfunction of any bodily organ or part. Medicaid will not pay for continuous or episodic care after the emergency has subsided and the patient is stabilized. The letter also stated: Professional services provided to an inpatient alien on or after the date that the patient has been stabilized will not be reimbursed by Medicaid. From the point of patient stabilization, the patient may continue to require medically necessary treatment; however, Medicaid cannot reimburse medically necessary treatment for aliens, only emergency treatment. Hospitals, including many of the challengers here, brought an action claiming the Agency was using a new "stabilization" standard that amounted to a rule that had not been adopted. They prevailed. That action was Bayfront I. The Final Order in Bayfront I found that "the 'point of stabilization' standard was an interpretation or an implementation of the existing statutes and rules and not merely a restatement of them." Bayfront I, DOAH Case No. 12-2757RU, at ¶ 54. It concluded that the "Agency's 'stabilization' standard for determining which services to un-documented aliens Medicaid will pay for is a statement of general applicability meeting the definition of a rule that has not been adopted pursuant to section 120.54(1)(a)." Bayfront I, DOAH Case No. 12-2757RU, at ¶ 74. The Final Order required the Agency to "immediately discontinue all reliance upon the 'stabilization' standard or any substantially similar statement as a basis for agency action." Since Bayfront I The Agency complied with the Final Order by discontinuing all reliance on a "stabilization standard" (or any other unadopted standard) as a basis for agency action. It did not abandon its efforts to review past, present, and future hospital claims for Medicaid payment for emergency services provided to undocumented aliens. The Agency developed new instructions for peer reviewers evaluating claims and amended affected contracts. It provided reviewers the language of the governing rules and statutes to use in evaluations. The material included the provisions of the Florida Medicaid Handbooks that have been incorporated by reference into the Agency's rules. The Agency emphasized, as Shevaun Harris, bureau chief, Bureau of Medicaid Services, testified: [Peer reviewers should] no longer use stabilize, to use--to use that terminology anymore, and that they should follow the policy. The policy--the handbook provides instruction to readers in terms of which words they need to go back to the glossary. And then words that are not defined are its plain--should be used--should be applied using its plain meaning. (Pet. Ex. 130, pp. 29 & 30). The Agency expected the reviewers to apply their education, clinical expertise, and experience to determine if services provided were "emergency services or treatment," as defined in section 409.901(11) for an "emergency medical condition," as defined in section 409.901(10). A January 28, 2013, memorandum to peer reviewers from Johnnie Shepherd, AHCA Administrator, Medicaid Program Integrity, is a representative example of the Agency's instructions to peer reviewers. It told the reader of the result of Bayfront I and stated that the Agency "will cease to rely upon the 'stabilization' standard or any substantially similar statement as a basis for determining the duration of the emergency." The Agency attached applicable excerpts from statutes and rules. It also advised the importance of reports "of sufficient detail and complexity to clearly support any claims payment adjustments based upon the medical determination and the application of Medicaid rules." (P. Ex. 130, AHCA Bates No. 463). Similarly, the Agency advised other "vendor[s] to make sure that they were using terminology as found in the rules that are promulgated and that their determinations are consistent with the rules as they are promulgated." (Pet. Ex. 130, p. 15). The vendors advised their employees and agents accordingly. Exhibit 2 to the desposition7/ of Carol Roberts, program manager for the Fee for Service Rules Unit, is a representative example of these instructions. The Power Point slides for a presentation reproduced the statutory definition for "emergency medical condition" and "emergency services and care." A March 7, 2013, internal eqHealth e-mail from Naveen Gande to Mary McPhee demonstrates that the vendors followed the instructions. It states that the "stabilization" standard should not be used and that reviewers should refer to the Agency handbooks. Likewise an e-mail exchange between Mr. Shepherd and Eileen Bechkes of Vendor Health Integrity demonstrates the Agency's reliance upon statutes and rules. Ms. Bechkes relayed a question from Winter Haven Hospital asked during an audit entrance conference. It asked to "explain the difference between the standard of 'stabilization of the emergency condition' and the standard of 'emergency condition is relieved or eliminated.'" (Pet. Ex. 119[B], p. 3).8/ Mr. Shepherd's response states the Agency position frankly. Thanks for this question. Our positon is to direct the provider to the Medicaid Provider's general Handbook and the other references mentioned in the audit letters. Since this question has been brought up prior to the other letters conveying the references to the provider, we should simply tell them to read the Medicaid policy reference for the limited coverage category that pertains to Medicaid for Aliens as found in the Medicaid Provider General Handbook. Also, the General Handbook includes definitions for Emergency Services and Care and Emergency Medical Condition. Finally, we are asking the peer reviewers to apply their education, experience and judgment in reviewing the respective medical records to determine if an emergency medical condition existed, and if it did at what point was the emergency medical condition alleviated or eliminated per the definitions found in the Medicaid references. The instructions to Agency or vendor employees reviewing the claims for payment for emergency medical services to undocumented aliens consistently emphasized that all participants were to apply only the applicable statutes and rules and that "stabilization" was not a criterion. The Hospitals rely heavily upon the wording of the post-Bayfront I amendment to the eqHealth contract (P. Ex. 89) and Ms. Harris's testimony about it. (P. Ex. 130, p. 117, ll. 19-22). These things, the hospitals argue, prove that the Agency is still attempting to determine the length of the period of eligibility and that this is a new interpretation of the rules and statutes. The existing language provided that the vendor would review the cases to time the point at which the emergency no longer existed and the patient's condition was stable. The amendment said: "The Vendor shall review these cases to determine the point at which the emergency no longer exists, in accordance with state and federal statutes." Ms. Harris's testimony on page 119 of Petitioner's Exhibit 30 clarifies that the amendment was referring to "the Agency's obligation to pay for services for undocumented aliens or individual who met all other requirements for Medicaid, except citizenship." The weight of the evidence, including training materials and written communications, proves that despite poor wording in the amendment, the parties to the contract stayed focused on determining whether the Agency was being asked to pay for services that state and federal law permitted it to, not determining the length of the emergency medical condition. The Agency was resolute in its commitment to only apply the standards and definitions of statutes and rules in the evaluation of claims for payment for emergency medical services to undocumented aliens. The Agency's resolve was tested in meetings with provider representatives, inquiries from vendors, and internal questions. Agency representatives repeatedly said that the rules and statutes determine the standards and people should apply the plain meaning of their words. Agency documents did the same. The Agency did not succumb to the temptation, as it did with "stabilization," to explain in different words the words of statute and rule. The weight of the evidence convincingly established that after entry of the Final Order in Bayfront I, the Agency's statements of general applicability implementing the law governing Medicaid reimbursement for emergency medical services to undocumented aliens were only quotes from or references to governing statutes and rules.
Findings Of Fact On February 4, 1980, the Office of Medicaid Quality Control advised Respondent that a review of his Medicaid claims revealed that he billed the Medicaid Program for psychiatric services and further advised him that only Board-certified or Board-eligible psychiatrists were entitled to bill the Program for such services. The letter further requested that Respondent provide Petitioner with a copy of his Board certification. (Although the letter admitted in evidence bears the date of February 4, 1979, it is obvious that the date contains a typographical error, since the letter pertains to services previously rendered in April of 1979, and refers to a rule which became effective January 1, 1980.) By letter dated February 8, 1980, Respondent replied, by advising Petitioner that he was neither Board-certified nor Board-eligible. Respondent included in his letter a recitation of his extensive experience and qualifications as a psychiatrist. In spite of Petitioner's failure to reply to his letter or to authorize him to do so, Respondent continued to bill Petitioner for psychiatric services rendered to Medicaid recipients, and Petitioner continued to pay Respondent's claims. During the summer of 1981, Petitioner determined that ineligible psychiatrists were billing the Medicaid Program for psychiatric services rendered to Medicaid recipients. In order to ascertain those qualified to bill the Program, form letters were sent to all providers of psychiatric services requesting documentation of Board eligibility or Board certification and further advising that only Board-certified or Board-eligible psychiatrists were entitled to bill the Program. On August 5, 1981, that form letter was sent to Respondent. On August 11, 1981, Respondent replied to the August 5 form letter by again advising Petitioner that he was not Board-certified or Board-eligible and his extensive background and qualifications as a psychiatrist. Although no reply was made to his August 1981 letter to Petitioner, Respondent continued to bill the Medicaid Program for psychiatric services, and Petitioner continued to pay Respondent's claims. Respondent is not presently, and has never been, a Board-certified psychiatrist or a candidate for Board certification. During the period from January 1, 1980, through February, 1982, Respondent billed for and was paid $38,252.75 by the Medicaid Program for providing psychiatric services to Medicaid recipients. Petitioner never advised Respondent that he was entitled to bill the Medicaid Program for providing psychiatric services to Medicaid recipients notwithstanding the fact that he was not a Board-certified psychiatrist or a candidate for Board certification.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered directing Respondent to reimburse to Petitioner the sum of $38,252.75 for payments received by him for psychiatric services rendered from January 1, 1980, through February, 1982. DONE and RECOMMENDED this 15th day of March, 1983, in Tallahassee, Leon County, Florida. LINDA M. RIGOT Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 15th day of March, 1983. COPIES FURNISHED: Robert A. Weiss, Esquire Medicaid Program Office Department of Health and Rehabilitative Services 1317 Winewood Boulevard, Suite 233 Tallahassee, Florida 32301 Bruce M. Boiko, Esquire 1000 Ponce de Leon Boulevard, Suite 212 Coral Gables, Florida 33134 David H. Pingree, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32301
