The Issue The issue in this case is whether Petitioner’s application for licensure as a registered nurse should be granted.
Findings Of Fact On or about December 6, 1988, Ms. Melegrito was convicted of two counts of fraud in violation of 42 U.S.C. Section 1395 and 18 U.S.C. Section 1341 in the United States District Court for the Western District of Virginia. On or about January 6, 1989, Ms. Melegrito was convicted of four counts of Medicaid fraud in violation of Sections 32.1-314 and 18.2-95 of the Code of Virginia. Both convictions involved the same set of facts. On or about August 3, 1989, the Florida Department of Professional Regulation and/or the Board filed an Administrative Complaint, Case No. 0107472 against Ms. Melegrito’s license as a registered nurse, charging a violation of Subsection 464.018(1)(c), Florida Statutes (1988), for the convictions set forth in paragraph one above. On or about October 27, 1989, the Virginia Board of Nursing revoked Ms. Melegrito’s nursing license as a result of the convictions set forth in paragraph 1 above. On or about December 21, 1990, the Board filed its Final Order in Case No. 0107472, placing Ms. Melegrito’s license on probation for a term concurrent with the probation imposed by the federal court and requiring her to comply with the terms of her federal probation. On or about June 25, 1993, Ms. Melegrito’s license to practice nursing in New York was revoked. On or about July 19, 1994, the Florida Department of Business and Professional Regulation and/or the Board filed an Administrative Complaint against Ms. Melegrito’s license in Case No. 92-11440, alleging a violation of Subsection 464.018(1)(h), Florida Statutes (1994), for unprofessional conduct including a departure from or failure to conform to the minimal standards of acceptable nursing practice. On or about September 14, 1994, Ms. Melegrito was found guilty of violating federal probation and sentenced to four years in the custody of the Federal Bureau of Prisons. Ms. Melegrito failed to make restitution as required by the terms of her probation. On or about November 28, 1995, the Division of Administrative Hearings issued a Recommended Order in Case No. 92-11440, finding that Ms. Melegrito violated Subsection 464.018(1)(h), Florida Statutes, and recommending suspension for three years followed by three years of probation and a $1,000.00 fine. On or about April 30, 1996, the Board filed a Final Order in Case No. 92-11440, imposing suspension for three years followed by three years of probation and a $1,000.00 fine. On or about December 13, 1996, the Agency for Health Care Administration and/or the Board filed an Administrative Complaint, Case No. 95-00886, against Ms. Melegrito’s license, charging Ms. Melegrito with a violation of Subsection 464.018(1)(l), Florida Statutes, for violating the Final Order in Case No. 0107472 by violating the terms of the federal probation. On or about September 4, 1998, the Board filed a Final Order in Case No. 95-00886, revoking Ms. Melegrito’s license for seven years. If Ms. Melegrito desired to reapply for licensure at the end of her revocation period, she was required to demonstrate her safety to practice as well as proof of completing continuing education courses and paying a $250.00 fine and $251.12 in costs. On or about February 24, 1999, Ms. Melegrito was convicted of felony criminal mischief and trespass in the Eighteenth Judicial Circuit in Broward County, Florida. On or about August 18, 2000; July 27, 2001; and December 9, 2004, the Virginia Board of Nursing denied Ms. Melegrito’s petitions for reinstatement of her nursing license. The denial by the Virginia Board of Nursing in 2004 was based in part on Ms. Melegrito’s misrepresentations concerning her licensure status at two job interviews, engaging in the unlicensed practice of nursing in 2003, and misrepresentations on her application for reinstatement by failing to disclose her previous disciplinary history and criminal history.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered denying Ms. Melegrito’s application for licensure as a registered nurse. DONE AND ENTERED this 18th day of March, 2008, in Tallahassee, Leon County, Florida. S SUSAN B. HARRELL 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 18th day of March, 2008. COPIES FURNISHED: Gerald D. Siebens, Esquire Office of the Attorney General One Mack Center 501 East Kennedy Boulevard Tampa, Florida 33602 Lee Ann Gustafson, Esquire Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050 Maria C. Melegrito 3137 Honeymoon Lane Holiday, Florida 34691 Josefina M. Tamayo, General Counsel Department of Health 4052 Bald Cypress Way, Bin A-02 Tallahassee, Florida 32399-1701 Rick Garcia, MS, RN, CCM, Executive Director Board of Nursing Department of Health 4052 Bald Cypress Way, Bin C-02 Tallahassee, Florida 32399-1701 Patricia Dittman, Ph.D(C), RN, CDE, Board Chair Board of Nursing Department of Health 4052 Bald Cypress Way Tallahassee, Florida 32399-1701
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following facts are found: By an administrative complaint dated December 15, 1978, respondent was charged with unprofessional conduct in violation of Florida Statutes, Section 464.21(1)(b). The respondent timely requested an administrative hearing which was granted. The envelope which contained the request for hearing was mailed from Buffalo, New York, but the return address was 717 Breakers Avenue #3, Ft. Lauderdale, Florida, with the notation "Note: Address Change." All future correspondence was sent to this address, including the notice of hearing dated May 16, 1979. The hearing was scheduled to commence at 9:30 a.m. At approximately 9:50 a.m., the hearing proceeded without the appearance of the respondent. On July 20 and 21, 1978, the respondent Miller was employed as a registered nurse on the 11:00 p.m. to 7:00 a.m. shift at Cypress Community Hospital in Pompano Beach, Florida. At 3:55 a.m. on July 21, 1978, respondent signed out for 75 milligrams of injectable Meperidine (Demerol), a Class II controlled substance, for patient Frank Mantovi, and then walked into the patient's room with the substance. Another registered nurse on duty, Oletta Jones, observed that the patient was sleeping at the time. Nurse Jones called her supervisor, Anita Johnston, and they awakened the patient and inquired whether he had requested or received any medication for pain. He replied in the negative. The patient appeared oriented and alert, and his vital signs were stable and not indicative of receiving 75 milligrams of Demerol. The administration of Demerol was not charted on the patient's medication record, as it should have been had it been administered. Nurses Jones and Johnston then confronted respondent Miller in the nurses' lounge. At first respondent told them that she had administered the Demerol intermuscularly, but then said she had given it by I.V. push. The doctor's order sheet for patient Mantovi contained a notation for 75 milligrams of Demerol administered intermuscularly as needed for pain every three hours. There is nothing to authorize an I.V. introduction of this medication. It is not acceptable or prevailing nursing practice for a nurse to alter the mode of administration prescribed by the physician. After talking with respondent, patient Mantovi's vital signs were again checked. There was no indication that he had received Demerol. Respondent was then asked to leave the hospital. The pupils of her eyes were observed by Nurse Johnston to be of pinpoint size.
Recommendation Based upon the findings of fact and conclusions of law recited above, it is RECOMMENDED that the Board of Nursing find respondent guilty of unprofessional conduct within the meaning of Florida Statutes, 464.21(1)(b), and suspend her registered nursing license for a period of three (3) months. Respectfully submitted and entered this 14th day of August, 1979, in Tallahassee, Florida. DIANE D. TREMOR, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Jane M. Miller 717 Breakers Avenue #3 Ft. Lauderdale, Florida 33304 Julius Finegold Esquire 1107 Blackstone Building Jacksonville, Florida 32202 Geraldine Johnson, R.N. Coordinator of Investigation and Licensing 111 East Coastline Drive Suite 504 Jacksonville, Florida 32304 ================================================================= AGENCY FINAL ORDER ================================================================= BEFORE THE FLORIDA BOARD OF NURSING IN THE MATTER OF: Jane Marie Miller 717 Breakers Avenue No. 3 Ft. Lauderdale, Florida 33304 CASE NO. 79-212 As Registered Nurse License Number 66021-2 /
The Issue The issue in this case is whether Petitioner, Latrice J. Walker’s application for certification as a certified nursing assistant should be granted.
Findings Of Fact Petitioner is a 31-year old woman. She is currently employed as a key-holder at Church’s Chicken, where she is a de facto assistant manager. Her duties include handling customers’ credit cards and cash, as well as making drop deposits at a local bank. On or about March 4, 2013, Petitioner completed and submitted a Florida Certified Nursing Assistant Application. The application was received by the Board on March 12, 2013. On page 4 of the application, there is a section entitled “Criminal History.” That section asks of the applicant: “Have you ever been convicted of, or entered a plea of guilty, nolo contender, or no contest to, a crime in any jurisdiction other than a minor traffic offense? You must include all misdemeanors and felonies, even if adjudication was withheld. Driving under the influence (DUI), driving while impaired (DWI) and driving while license suspended (DWLS) are not minor traffic offenses for the purposes of this question.” Petitioner answered, “No”, to the criminal history question. In fact, she had three relevant arrests on her record, to wit: 1) In January 2003, Petitioner was arrested and charged with a violation of section 832.05(2), Florida Statutes (2002), relating to the issuance of a bad check; 2) in April of the same year, Petitioner was arrested and charged with violation of section 812.014(3)(a), Florida Statutes (2002), relating to petit larceny, and section 831.09, Florida Statutes (2002), relating to passing a forged instrument; and 3) on August 8, 2004, Petitioner was arrested and charged with leaving the scene of an accident in violation of section 316.061(1), Florida Statutes (2004), and possession of less than 20 grams of marijuana, a violation of section 893.13(6) (2004). Petitioner entered a plea on the 2002 charges and adjudication was withheld. She was found guilty of the 2004 charges. Petitioner provided two reasons for answering, “No”, to the criminal history question: First, she believed that because adjudication had been withheld she did not need to disclose the arrests. Second, she was holding her six month-old child while preparing the application and may have hit the wrong box on the application form. The testimony concerning her child affecting her typing of the application was not persuasive. Whatever the reason for her response on the application, it is clear Petitioner did not try to hide her criminal past. As early as October 2013, she had requested from the Levy County Clerk of Court information about her convictions so that she could provide that information to the Board. On February 24, 2014, almost one year after submitting her application, the Board sent Petitioner a letter indicating her application was not complete. The letter advised Petitioner that incomplete applications would expire after one year from the “received date.” The letter then identified information that was missing from Petitioner’s application, including the following items: Proof of completion of probation or parole; Proof of completion of fines, restitution, or court-ordered sanctions for each offense; Certificates, counselor letters, and proof of treatment or rehabilitation; Proof of completion of community service; and Proof of completion of pre-trial intervention. It is clear from the Board’s letter to Petitioner that the Board was aware of her criminal convictions as the omissions letter had asked for explanations as to completion of sanctions for each offense. Petitioner went to the Levy County Courthouse and obtained the requested information. She provided the information to the Board as requested. On March 4, 2014, the Board notified Petitioner that additional explanations about each of the offenses were required. Again, Petitioner provided the requested information. On or about June 30, 2015, the Board notified Petitioner that her application for certification was being denied. No one from the Board testified concerning the basis for the denial, but the Notice of Intent to Deny set out the following bases for the denial: That Petitioner was convicted of or entered pleas to a charge of no driver’s license in 2000, worthless checks, petit theft and uttering a forged instrument in 2003, and leaving the scene, resisting arrest, possession of marijuana and petit theft in 2004. The application includes the following question: Have you ever been convicted of, or entered a plea of guilty, nolo contender, or no contest to, a crime in any jurisdiction other than a minor traffic offense? You must include all misdemeanors and felonies, even if adjudication was withheld. Driving under the influence (DUI, driving while impaired (DWI) and driving while license suspended (DWLS) are not minor traffic offenses for the purposes of this question. The applicant answered the question, “NO”. The applicant is in violation of Sections 464.204(1)(a), 464.018(1)(a)(c) and (o), and 456.072(1)(c) and (h), Florida Statutes, by being convicted or found guilty of, or entering a plea of nolo contendere to, regardless of adjudication, a crime in any jurisdiction which directly relates to the practice of nursing assistance or to the ability to practice nursing, and by attempting to obtain a nursing license by bribery, misrepresentation or deceit. No further explanation for denial of Petitioner’s application for certification was stated in the Notice of Intent to Deny or by way of testimony or other evidence at final hearing in this matter. However, one may surmise that the basis for the Board’s denial of the application was: 1) that Petitioner had been found guilty or pled nolo contendere to the enumerated crimes, and 2) that Petitioner attempted to mislead the Board in her application for certification. Petitioner provided evidence as to each of the issues raised in the Board’s Notice of Intent to Deny. Although her memory was clouded as to specifics about each of the incidents due to the passage of time, she admitted each offense and tried to explain the circumstances surrounding them. As to the charges of leaving the scene of the accident, resisting arrest without violence and possession of marijuana, Petitioner explained as follows: She was helping her sister move to a new home. Petitioner was driving the rental vehicle and hit a car in the parking lot of a business. She drove away from the scene. When the police came to her home, Petitioner went into her house. At some point marijuana was found, but Petitioner-–who says she has never done drugs–- claimed it to be her sister’s drugs. Petitioner was arrested. However, she satisfied all of the conditions of probation and made all payments for costs. As to the insufficient funds charge, Petitioner stated that at the time she wrote the check to pay rent for the mobile home she was living in, she had funds in the bank. However, by the time the check was submitted for payment, she had used the existing funds. She admitted the violation and made all payments of restitution and costs. The uttering offense came when she agreed to sign a money order that did not belong to her. She yielded to the influence of nefarious friends with whom she no longer associates. Again, she admitted her culpability and made all necessary restitution to the victim. Petitioner filed her application for certification as a nursing assistant to fulfill a long-time dream of working in health care. She has “changed her ways” and is very desirous of doing positive things in her life. Petitioner’s demeanor and candor at final hearing gave credence to her promise to do better in the future, if given the opportunity. Her testimony was persuasive. However, it is troublesome that Petitioner chose to blame her application errors on the fact that she was holding her child while typing the application. That “excuse” does not ring true and seems an unnecessary reason for not disclosing the crimes. Nonetheless, absent further elucidation by the Board as to exactly why Petitioner’s application was denied, there is no way for Petitioner to further support her challenge to the denial other than as she did at final hearing. The Board did not challenge her reasons; it merely stood by its denial letter without further support or justification.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by Respondent, Department of Health, Board of Nursing, granting Petitioner, Latrice J. Walker’s, application for certification as a certified nursing assistant, with appropriate sanctions. DONE AND ENTERED this 16th day of March, 2016, in Tallahassee, Leon County, Florida. S R. BRUCE MCKIBBEN 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 16th day of March, 2016. COPIES FURNISHED: Latrice J. Walker 454 Southwest 10th Circle Chiefland, Florida 32626 Deborah B. Loucks, Esquire Lynette Norr, Esquire Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050 (eServed) Joe Baker, Jr., Executive Director Board of Nursing Department of Health 4052 Bald Cypress Way, Bin C02 Tallahassee, Florida 32399-3252 (eServed) Ann-Lynn Denker, PhD, ARNP Chair Board of Nursing Department of Health 4052 Bald Cypress Way, Bin C02 Tallahassee, Florida 32399-3252 Nichole C. Geary, General Counsel Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 (eServed)
The Issue At issue in this proceeding is whether respondent committed the offenses set forth in the administrative complaint and, if so, what disciplinary action should be taken.
Findings Of Fact At all times material hereto, Respondent, Carmalita Thomas, was licensed as a registered nurse in the State of Florida, license number RN 1329552. From November 11, 1987, to September 1988, respondent was employed as an independent contractor by Hi-Tech Medical Services, Inc., (the Agency), a comprehensive health maintenance organization. Pursuant to the terms of her employment, respondent was responsible for the Agency's pediatric program, and was to provide skilled nursing visits in homes where ill or disabled persons were receiving care from the Agency. Regarding compensation, their agreement provided: The Contractor will be paid for Agency authorized visits. The Agency will not pay nor be responsible for visits rendered or expense incurred due to the Contractor's execution of unauthorized visits. The Agency will pay the Contractor 30 days after receipt of a statement reflecting number of authorized visits rendered during the previous period at the prevailing rate of 22/27 per visit. The Contractor will prepare and submit a written clinical report for each visit in keeping with Agency policy and requirements. The Agency's written policy regarding the preparation and submittal of written clinical reports required, for verification of visits and billing purposes, that respondent, for each visit, prepare and sign a written nurses progress report. Respondent was aware of this policy, but did not consistently present such reports with her billing form by which she received her compensation. Notwithstanding such failures the Agency routinely paid respondent upon presentation of her billing form. During the period of May 23, 1988, through June 17, 1988, respondent prepared and signed four progress notes reflecting nursing care rendered to pediatric patient Jessica Metzel, and submitted a billing form to the Agency for payment at $27.00 per visit. Respondent was compensated by the Agency, who in turn billed the patient's insurance carrier for the services. While requesting and receiving payment for four visits, the proof demonstrates that respondent was only at the Metzel residence on two occasions. The first occasion was to have Jessica's father sign some paper work, and the occasion was to insure that the family was satisfied with the respiratory therapist that was treating Jessica. At no time did respondent examine or otherwise treat Jessica, and the progress notes prepared by respondent were a fabrication. Respondent also submitted billing forms to the Agency on at least two occasions, which resulted in her being compensated twice for the same working hours. More particularly, respondent billed the agency in December 1987, and was paid, for having worked from 10 a.m. to 1 p.m. (3 hours) on December 21, 1987, and from 10 a.m. to 3 p.m. (4 1/2 hours) on December 24, 1987. Thereafter, by separate billing, she also billed the Agency, and was paid, for services purportedly rendered from 9:30 a.m. to 1:00 p.m. (3 1/2 hours) on December 21, 1987, and from 10:30 a.m. to 2:00 p.m. (3 1/2 hours) on December 24, 1987.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that respondent be found guilty of having violated the provisions of Section 464.018(1)(d) and (f), Florida Statutes, as heretofore found in the conclusions of law, and that respondent's license be suspended for 90 days, followed by a two (2) year term of probation upon such terms and conditions as the Board of Nursing deems appropriate. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 25th day of February 1991. WILLIAM J. KENDRICK 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 25th day of February 1991.
The Issue Whether the Agency for Health Care Administration (Agency) is entitled to recover alleged Medicaid overpayments, sanctions, and investigative, legal and expert witness costs from Angels Unaware, Inc. (Respondent).
Findings Of Fact PRELIMINARY The Agency is the state agency responsible for administering the Florida Medicaid Program (Medicaid). Medicaid is a joint federal/state partnership to provide health care and sometimes related services to certain qualified individuals (disabled or indigents). Among its duties, the Agency is required to conduct audits and to recover "overpayments . . . as appropriate." Section 409.913(1)(e), Florida Statutes, defines "overpayment" to mean "any amount that is not authorized to be paid by the Medicaid program whether paid as a result of inaccurate or improper cost reporting, improper claiming, unacceptable practices, fraud, abuse, or mistake." As found in section 409.913(1)(a)1., "abuse" includes "[p]rovider practices that are inconsistent with generally accepted business or medical practices and that result in an unnecessary cost to the Medicaid program or in reimbursement for goods or services that are not medically necessary or that fail to meet professionally recognized standards of health care." The Agency's Bureau of Medicaid Services has the responsibility for implementing the rules and policies regarding the Developmental Disabilities (DD) Waiver and Provider Reimbursement Programs. One method the Agency uses to discover Medicaid overpayments is by auditing billing and payment records of Medicaid providers. Such audits are performed by staff in the Agency's MPI. MPI is responsible for reviewing providers to assure that the services rendered were done in accordance with the applicable rules, regulations and handbook(s). MPI looks to ensure that the provider is enrolled, the recipient is eligible, the service billed is covered, and the service is billed appropriately. In order to participate in the voluntary Medicaid program, providers have to enroll in a fee-for-service program. The provider submits an application to the Agency and undergoes a background screening check to ensure they meet the qualifications for enrollment and are not listed on a federal exclusion roster. Once accepted they are issued a provider number, and they receive handbooks and instructions on how to bill for the services they provide. Those providers who provide DD waiver services must also have a contract with the Agency for Persons With Disabilities (APD), as well as a Medicaid Services Agreement with APD. Every individual recipient has a support plan (SP), which identifies the supports and services designed to meet the needs of that recipient. A physician determines the medical necessity for each recipient. Each SP is to include the most appropriate, least restrictive and most cost-beneficial environment for the recipient to accomplish SP's objectives and a specification of all services authorized. The SP delineates who is to provide the services. Once the SP is approved, the support coordinator will develop a cost plan to determine how payment for those needed supports will be made. A cost plan is "a document used by the waiver support coordinator that lists all waiver services requested by the recipient on the support plan and the anticipated cost of each waiver service. The cost plan is updated annually based on the results of the support planning process to reflect current needs and situations." Although a cost plan usually lasts for a year at a time, it may be amended "only if there is a documented significant change in the recipient's condition or circumstance that affects the recipient's health or welfare." When the Agency audits a Medicaid provider for possible overpayments, it "must use accepted and valid auditing, accounting, analytical, statistical, or peer-review methods, or a combination thereof." See § 409.913(20), Fla. Stat. The parties stipulated to the statistical analysis that was performed, thus, no additional testimony or evidence was received on it, and the amount of overpayments is not at issue, other than Respondent's position that there were no overpayments. In the DD program, once an entity is selected for the review, an Agency investigator develops a request for records and sends it to the entity with a list of the recipients to be reviewed along with the applicable review period. The entity then sends in the records. In a DD program review, the investigator reviews the records and then, if necessary, a qualified nurse reviews any nursing services records. The qualifications of the entity's staff who are providing the service(s) are reviewed first. If the staff is ineligible, then the services provided are disallowed. Once the staff is validated, the review continues to the individual recipients, their SP, including any prescriptions, the cost plan and the documentation for the services provided. The service authorization authorizes a provider to provide a service and bill for that service at a specific rate. If a provider does not have a service authorization, it cannot provide the service, and it cannot submit a claim or be reimbursed for the service. In-home support services are provided to recipients as long as they are authorized and required. In-home support services may include: companionship; personal care or hygiene; and help with different things around the home, including housekeeping, grocery shopping and/or cooking. In-home support is billed in either a unit of service (UOS), which is 15 minutes at a time or at a daily live-in rate, which is eight hours or more. In-home support rates are roughly $3.00 per UOS, and may go up to $120 for a daily live-in rate for 24 hours. Supported living coaching (SLC) is more involved. SLC is limited to adults who rent or own their residence and cannot exceed six hours or 24 quarter hours of service each day. SLC provides one-on-one assistance which may include: locating housing; acquiring, retaining or improving skills related to the activities of daily living (ADLs), which may include household chores; meal preparation; shopping; personal finances; and social and adaptive skills necessary to stay in the residence. SLC rates are roughly $8.00 for a UOS. It may be necessary for a recipient to have SLC and in-home support; however, providers must coordinate their activities to avoid duplicate billing for the two services. After an Agency investigator reviews the submitted records, an Agency nurse consultant reviews all the nursing records for the recipients to determine whether the care plan has been serviced adequately for the claims billed. This review includes any prescriptions, the nursing service log(s), and the nursing daily assessment or notes. After the Agency's staff completes the review of the records, a preliminary audit report (PAR) is prepared and sent to the provider along with the Agency's worksheets and overpayment calculations. The provider is given the opportunity to submit any additional documentation it may have, and the provider usually does so. Once all the additional records have been received and reviewed, the Agency issues the FAR, along with the Agency's work papers. ANGELS UNAWARE, INC. Respondent is a 501(c)3 not-for-profit corporation that has been in operation for 40 years, specializing in assisting the severe, profound and/or moderately developmentally disabled population. Respondent's expressed goal and purpose is to provide quality residential living options and services to the developmentally disabled population in the Tampa Bay area. Respondent provides residential habitation, transportation, nursing, behavioral services, as well as supportive living, in- home supports and other non-remunerative services. Respondent is (and was at all times relevant to this action) enrolled as an authorized provider in the Florida Medicaid Developmental Disabilities Waiver Program (DD Program), having been issued Medicaid provider no. 024115696. Respondent, as an enrolled provider, is required to comply with the Florida Medicaid Provider General Handbook, the Developmental Disabilities Waiver Services Coverage and Limitations Handbook, the Provider Reimbursement Handbook, and the applicable laws and rules. Respondent acknowledged that it used the Medicaid Provider General Handbook, the Developmental Disabilities Waiver Services Coverage and Limitations Handbook, and the Provider Reimbursement Handbook in providing services to and billing for those services on behalf of the recipients. Florida Medicaid providers are required by their agreements with the state to comply with the requisite handbooks, laws and regulations. The handbooks outline the requirements for record-keeping, as well as other pertinent information to assist providers. Additionally, the Agency staff is available should providers have questions. Respondent submitted bills which were processed and paid through the Florida Medicaid payment system. The Medicaid billing services in question include in-home support, home and community based services under the DD waiver, supported living coaching, residential habitation, skilled nursing, and residential nursing. SETTING In May 2011, the Agency notified Respondent that MPI was "in the process of completing a review of claims billed to Medicaid during the period January 1, 2008 through December 31, 2009, to determine whether the claims were billed and paid in accordance with Medicaid policy." In July 2011, Respondent provided over 13,000 pages of the "Medicaid-related records requested by the Agency." Investigator Koelle, an experienced MPI investigator, completed the steps of the audit process according to established Agency protocols. She reviewed Respondent's provider information and billing (excluding the nursing records, which were reviewed by an Agency nurse) to determine the staff qualifications, the types of services that were provided, the claims that were submitted, and how much was paid by Medicaid. The Agency identified 20 recipients (or "consumers," as Respondent calls them) who received services from Respondent for which there were billing issues. Following a preliminary review and notification by the Agency, Respondent provided more records to the Agency for its consideration. A PAR was sent to Respondent in May 2012. Thereafter, Respondent provided additional records for the Agency's consideration. Investigator Koelle reviewed the supported living services and coaching services provided to the consumers. An Agency nurse consultant initially reviewed the nursing records and provided Investigator Koelle with those findings. In those instances when the SP provided for the in-home support services, only the in-home support provider could properly bill for services. When SLC occurred, but was not authorized by the SP, the coach could not bill for the coach's time. Further, neither the in-home support provider nor the coach could bill for certain activities. Mr. Epperson conceded several billing errors in that "unauthorized activities," such as watching TV and/or coloring, are not billable activities and should not have been billed. On December 11, 2012, after reviewing the additional records, Investigator Koelle prepared the FAR, which CMU manager Olmstead executed and sent to Respondent. In the FAR, the Agency notified Respondent of the completion of its review of claims for Medicaid reimbursement for the audit period. Included with the FAR were: the overpayment calculations; a listing of the billing claims by recipient name; and the staff file review findings. The FAR contained an overpayment amount (which was approximately $103,100.00 less than the PAR), sanctions (which were less than the PAR), and costs. The FAR was attached to the request for hearing that was submitted by Respondent. The overpayment amount and the sanction amount were revised (downward to $48,191.35 and $9,638.27, respectively) at the start of the hearing.6/ These amounts have not been repaid to the Agency. RN Riley provided an additional review of the nursing services records, including the billing records, in preparation for the hearing.7/ In those instances where RN Riley determined there were no adjustments to the billing, he would write "no change" and initial the work papers. However, in those instances where RN Riley found an adjustment was necessary, he would make that notation to the side of the entry and sign or initial the adjustment. RN Riley found numerous instances of the nursing services billing more units than were prescribed. Examples of the types of prescriptions issued to various consumers (during the audit period) included the following: Residential Nursing One hour per Day Residential Nursing 1 1/2 hours per Day Medically Necessary Residential Nursing 1 hour (one) per day Residential Nursing 3 hours/day Residential Nursing 1 hr per day Residential nursing x 1 hr per day Residential Nursing 2 hours per week Residential Nursing Care 4 hours per week Residential Nursing 6 hours per month Only prescriptions for nursing care per week or month allow the nursing staff flexibility to vary daily when those nursing services can be provided. Respondent's theory, that the nurse on duty can provide excess nursing units on any "per day" basis as long as they do not exceed the cost plan or service authorization, is rejected. A prescription is a physician's directive as to how to treat a patient/consumer and is not subject to change without that physician's authorization. (This is not to mean that emergent care should not be rendered when necessary, but that if additional nursing/medical services are necessary in addition to what was prescribed, the attending physician must be notified and a prescription, or authorization, obtained. As to the cost associated with the increased nursing services, that would require another cost plan adjustment.) Respondent's nursing staff provided services to one consumer after that consumer's prescription lapsed. Respondent's staff acknowledged that the Agency's adjustments for this billing were correct. Respondent's consumers are complex. It is understandable that some consumers may require more nursing services than are prescribed. However, the nursing staff has a method to communicate with each consumer's physician to secure an appropriate prescription for the requisite services. The fact that Respondent did not exceed the overall cost plan, in instances where nursing services exceeded the "per day" prescription, is of no consequence because the actual prescription controlled what nursing services were available for each consumer on each day. Respondent's staff communicates with the consumer's physicians "every couple of months, if not monthly, according to LPN Seabrook." In an emergency, Respondent's staff, whether it is a nurse, support staff or coach, would contact the appropriate emergency services. Respondent's thought, that providing nursing services beyond that which was prescribed but was within the cost plan, is incorrect. According to Respondent's residential nursing staff, if the SP has a prescription for nursing services, the cost for that prescribed nursing service is usually determined after the cost plan is made. This is not an accurate description of the process, as the DD handbook provides that the cost plan "lists all waiver services requested by the recipient on the support plan and the anticipated cost of each waiver service." Respondent did not dispute that it was a provider. Respondent did not dispute it was subject to the handbooks and pertinent guidelines. Respondent did not dispute it was required to maintain records to support the claims. Respondent did not dispute it was paid for the claims submitted to the Agency. Respondent disputed that there was overbilling; however, the audit report and work papers proved otherwise.
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 sustaining the Medicaid overpayment in the amount of $48,191.35. Further, jurisdiction is retained to determine the amount of sanctions, costs and attorney's fees, if the parties are unable to agree to the amount, and either party may file a request for a hearing within 30 days after entry of the final order to determine the appropriate amounts. DONE AND ENTERED this 2nd day of April, 2014, in Tallahassee, Leon County, Florida. S LYNNE A. QUIMBY-PENNOCK 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 2nd day of April, 2014.
The Issue The issue in the case is whether the allegations of the Administrative Complaint filed by the Petitioner are correct and, if so, what penalty should be imposed against the Respondent.
Findings Of Fact The Petitioner is the state agency charged with regulation of the practice of nursing in State of Florida. At all times material to this case, the Respondent has been licensed as a practical nurse in the State of Florida, holding license number PN 0741801. At all times material to this case, the Respondent was employed as a practical nurse at the Harborside Health Care facility in Naples, Florida. At all times material to this case, Patient F. D. was a resident of Harborside Health Care. On or about August 17, 1998, at approximately 11:00 a.m., the Respondent initialed a medication administration record indicating that the Respondent had provided a nutritional supplement to F. D. According to the medication administration record, F. D. was to receive the nutritional supplement at approximately 2:00 p.m. At the time the Respondent placed her initials on the medication administration record, she had not provided the nutritional supplement to F. D. At all times material to this case, Patient L. G. was a resident of Harborside Health Care. On or about August 17, 1998, at approximately 11:00 a.m., the Respondent initialed a medication administration record indicating that the Respondent had provided a nutritional supplement to L. G. According to the medication administration record, L. G. was to receive the nutritional supplement at approximately 2:00 p.m. At the time the Respondent placed her initials on the medication administration record, she had not provided the nutritional supplement to L. G. At all times material to this case, Patient R. T. was a resident of Harborside Health Care. On or about August 17, 1998, at approximately 11:00 a.m., the Respondent initialed a medication administration record indicating that the Respondent had provided a nutritional supplement to R. T. According to the medication administration record, R. T. was to receive the nutritional supplement at approximately 2:00 p.m. At the time the Respondent placed her initials on the medication administration record, she had not provided the nutritional supplement to R. T. Minimal acceptable standards of prevailing nursing practice require that nurses accurately document the provision of supplements and nourishment to nursing home patients. Minimal acceptable standards of prevailing nursing practice require that documentation of care provided to patients be recorded contemporaneously with the provision of the care. The Respondent's documentation of care provided to the patients identified herein fails to meet minimally acceptable standards of prevailing nursing practice. The placing of a care provider's initials on a medication administration record indicates that medication has been administered to patients. "Pre-initialing" of medication administration records poses a risk of confusion to other care providers working in the facility and is not an acceptable practice. The Respondent acknowledges that she initialed each medication administration record at about 11:00 a.m., several hours prior to the actual administration of the supplement's to the patients. She asserts that she did not record the amounts of supplement each patient consumed (100 percent in all three cases assuming the records are accurate) until after the patient had consumed the supplement. The rationale for the Respondent's practice is unclear. The Respondent suggests that she had "a few moments" at about 11:00 a.m. and so she went ahead and initialed the documents, knowing that she could complete the charting at a later time. The Respondent's suggestion is the intent of the practice is to save time; however, any time saved is at best minimal. If the Respondent's testimony regarding post- administration record completion is credited, the practice requires that each record be handled twice to complete a single task. The Respondent suggests that she returns to each individual record after administering the supplement and charts the amount of supplement consumed by writing in a space approximately one-quarter inch beneath the "pre-initialed" space. In reality, "pre-initialization" doubles the time required to complete the documentation and increases the potential for confusing other care providers involved in patient care and charting. The Respondent continues to assert that the "pre- initialization" practice is acceptable. The assertion is clearly contrary to minimally acceptable standards of nursing practice, and to common sense.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Petitioner enter a final order against the Respondent, imposing a fine of $500, requiring completion of appropriate continuing education in nursing records documentation in addition to any existing continuing education requirement, and placing the Respondent on probation for a period of one year under such conditions as the Board of Nursing determines are warranted. DONE AND ENTERED this 30th day of August, 2000, in Tallahassee, Leon County, Florida. WILLIAM F. QUATTLEBAUM 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 30th day of August, 2000. COPIES FURNISHED: Reginald D. Dixon, Esquire Agency for Health Care Administration 2727 Mahan Drive Post Office Box 14229 Tallahassee, Florida 32317-4229 Harry A. Blair, Esquire Harry A. Blair, P.A. 2180 West First Street, Suite 401 Ft. Myers, Florida 33901 Ruth R. Stiehl, Ph.D., R.N., Executive Director Board of Nursing Department of Health 4080 Woodcock Drive, Suite 202 Jacksonville, Florida 32207-2714 Angela T. Hall, Agency Clerk Department of Health 4052 Bald Cypress Way Bin A02 Tallahassee, Florida 32399-1703 William W. Large, General Counsel Department of Health 4052 Bald Cypress Way Bin A02 Tallahassee, Florida 32399-1703
