Findings Of Fact At all times pertinent to this proceeding, Petitioner was a medicaid provider in the State of Florida. At all times pertinent to this proceeding John Whiddon was the Chief of Florida's Medicaid Program Integrity. Florida's Medicaid Program Integrity is charged with the oversight of the Medicaid program in Florida. The parties stipulated that Mr. Whiddon would have testified that the responsibility is ". . . basically to see that the Medicaid program gets what it pays for." The Florida Medicaid Program Integrity has the responsibility to protect Medicaid funds should an investigation reveal there is fraud or willful misrepresentation. Section 409.913(3), Florida Statutes, provides as follows: (3) Any suspected criminal violation or fraudulent activity by a provider, or by the representative or agent of a provider, identified by the department shall be referred to the Medicaid fraud control unit of the Office of the Auditor General for investigation. The Medicaid Fraud Control Unit (MFCU) is the agency with the statutory responsibility for criminal investigations in the Medicaid program. The Medicaid Program Integrity is a part of the Florida Department of Health and Rehabilitative Services. The MFCU is a part of the Office of the Auditor General, which is an agency of the legislative branch of government. On occasions, the MFCU advises Medicaid Program Integrity of a criminal investigation into a particular provider's activities. However, Medicaid Program Integrity is not told of the specific facts of the criminal investigation until after the case is prosecuted or until after the case is closed. The parties stipulated that Mr. Whiddon would testify that he is of the opinion that Section 409.913(7), Florida Statutes, prohibits MFCU from revealing anything about its investigation while the investigation is ongoing. Mr. Whiddon received a letter dated April 6, 1993, from John G. Morris, Jr., the Director of the Medicaid Fraud Control Unit, which referenced Petitioner as the provider, and which stated as follows: Pursuant to provisions of 42 CFR 455.23, this is to advise you that there is reliable evidence that the above referenced provider billed for home health care services that were not provided and this investigation will be referred for criminal prosecution. No specific facts of this criminal investigation were given to the Medicaid Program Integrity by the MFCU. The parties stipulated that Mr. Whiddon would testify that Program Integrity believes that the Petitioner will be prosecuted based upon the MFCU investigation as stated in the April letter, but that Mr. Whiddon concedes that any decision to prosecute is solely the decision of the prosecutor and may be declined. During the months of April, May, and June of 1993, the Petitioner continued to receive substantial Medicaid payments. These payments amounted to approximately $28,906 every week. Mr. Whiddon decided it was necessary to withhold Medicaid payments to the Petitioner until the MFCU investigation was completed. This decision was based solely on the MFCU letter of April 6, 1993, and his interpretation of his responsibility under 42 CFR 455.23. Mr. Whiddon directed Mike Morton to sign the Agency's letter to Petitioner dated June 29, 1993, because Mr. Whiddon was unavailable because of an unrelated special assignment. The letter dated June 29, 1993 provided, in pertinent part, as follows: PLEASE TAKE NOTICE that the undersigned has directed Consultec, the fiscal agent for the Department of Health and Rehabilitative Services, to withhold Medicaid payments to A-Community Home Health, Inc. in accordance with the provisions of 42 CFR 455.23. This action is being taken because of receipt of reliable evidence that the circumstances giving rise to the need for a withholding of payment involves fraud or willful misrepresentation. The withholding of payment will be temporary and will not continue after: The Department or prosecuting authorities determine that there is insufficient evidence of fraud or willful misrepresentation by A-Community Home Health, Inc., or Legal proceedings related to A-Community Home Health, Inc., alleged fraud or willful misrepresentation are completed. The type of Medicaid claims withheld are home health claims.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a Final Order which terminates the withholding of Medicaid payments from Petitioner and which reimburses Petitioner for payments that have been withheld. DONE AND ENTERED this 3rd day of November 1993, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON 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 3rd day of November 1993.
The Issue Whether the petitions for formal administrative hearing filed by Petitioner in these consolidated cases should be dismissed as contended by Respondent? If not, whether Petitioner should be granted the relief sought in these petitions?
Findings Of Fact Based upon the record evidence and the factual stipulations entered into by the parties, the following Findings of Fact are made: Petitioner is a Florida Medicaid provider. Its provider number is 027856400. Paragraph 8 of the provider agreement that it entered into with the Department provides that it and "the Department agree to abide by the Florida Administrative Code, Florida Statutes, policies, procedures, manuals of the Florida Medicaid Program and Federal laws and regulations." The Department is the state agency that administers the Florida Medicaid program. The Department's Medicaid Program Integrity Unit audits and investigates claims for reimbursement submitted by Florida Medicaid providers. John M. Whiddon is Chief of the Unit. Ellen Williams is one of his subordinates. In November, 1991, Whiddon received a letter from the Director of the Auditor General's Fraud Control Unit. The body of the letter read as follows: The Florida Medicaid Fraud Control Unit is currently in the process of conducting a criminal investigation of [Petitioner]. Our investigation has established that there is a basis for criminal prosecution for the billing of services not rendered and for providing treatment that was not prescribed (there were no treatment plans). As of today's date the provider's YTD earnings are in excess of $444,000. I believe that a review of the claims submitted the last 90-120 days will indicate a high volume of the claims being false and that you may want to proceed administratively to stop the improper claims. Shortly after receiving this letter, Whiddon ordered that each of Petitioner's claims be subjected to prepayment review. On February 17, 1992, Petitioner filed with the Department his petition requesting an award of "damages in excess of $10,000.00." The petition contains four counts. Count I of the petition alleges that "[i]n refusing to reimburse [Petitioner] for services rendered, [the Department] has violated Section 409.266, et seq., Fla. Stat." Count II of the petition alleges that "[i]n refusing to reimburse [Petitioner] for services rendered and failing to notify [Petitioner] of [the Department's] intent to withhold any payment due [Petitioner], [the Department] has violated Rule 10C-7.060, et seq., Fla. [Admin. Code]." Count III of the petition alleges that "[b]y withholding monies due and owing to [Petitioner] for services rendered without prior notice to [Petitioner], in violation of its own rules and regulations, and failing to provide for any procedure for a post-deprivation hearing, [the Department] violated [Petitioner's] due process rights." Count IV of the petition alleges that "[the Department] has breached its agreement to reimburse [Petitioner] for services rendered." Each of the foregoing counts contained the following prayer for relief: WHEREFORE, Our Lady requests this Court enter judgment against HRS for compensatory damages, attorneys' fees, costs and interest and such other relief as the Court deems just and proper. On March 7, 1992, Petitioner received a letter from Whiddon, dated January 28, 1992. The body of the letter read in part as follows: In accordance with 42 CFR 455.23, the Department of Health and Rehabilitative Services is withholding payments for Medicaid claims submitted by Our Lady Health Care Services. Based on our review of a sample of your home health records for the period February 1, 1991-November 30, 1991, we find evidence of willful misrepresentation on your part. Your home health records revealed that: You billed for services for which there was not a valid treatment plan, and You billed for nursing and aide services that were not documented as having been provided. As stated in 42 CFR 455.23, this action is temporary and will not continue after: the department determines that there is insufficient evidence of willful misrepresentation by the provider; or legal proceedings related to the provider's alleged willful misrepresentation are completed. In accordance with 42 CFR 455.23, you have the right to submit written evidence for consideration by the department. If you have such evidence, please send it to Ms. Ellen D. Williams, 2002 Old St. Augustine Road, Suite B-10, Tallahassee, Florida 32301. Pursuant to Section 120.57, Florida Statutes (F.S.) and Rule Section 10- 2.056, Florida Administrative Code (F.A.C.) you may request either a formal or informal hearing on the department's action. Your request for such hearing must be received by the department within 30 days of the date you received this letter. A request for informal hearing must be in writing and a request for formal hearing must be in the form of a petition in compliance with Rule Section 28-5.201, F.A.C. Either request must be substantive and state clearly the specific actions to which you object and why you object to them. . . . The purpose of either a formal or informal hearing is to determine whether the action taken in this letter is within the authority of the Department of Health and Rehabilitative Services and in accordance with the department's applicable rules and policies. . . . If a hearing request is not received within 30 days from the date of receipt of this letter, the right to such hearing is waived. On March 19, 1992, Petitioner filed a petition with the Department requesting a formal hearing on the matter. On June 4, 1992, Whiddon sent Petitioner a letter. The body of the letter read as follows: Please be advised that this office has concluded its investigation of Our Lady Health Services, pursuant to 42 CFR 455.23. Based upon this investigation, your claims are now pended for medical review pursuant to Section 409.913(2), Florida Statutes. Please forward copies of all supporting documentation for those claims which are now in pend status. Attached hereto are the claims which are the subject of this review. The supporting documentation must be received by this office within 30 days of receipt of this letter. If you have any questions, please contact Ms. Ellen Williams at (904) 488- 3588. As of June 8, 1992, the date of the final hearing in these cases, the Department had not made any official determination regarding overpayments made to Petitioner, nor had it decided to pay or deny the pended claims. These matters were still under review and investigation.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Department of Health and Rehabilitative Services enter a final order dismissing the petitions filed by Petitioner in these consolidated cases. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 4 day of August, 1992. STUART M. LERNER 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 4 day August, 1992.
The Issue The issue in this case is whether the provider, Orietta Medical Equipment, Inc., d/b/a Pharmco Pharmacy (Respondent or Provider) should repay an alleged Medicaid overpayment and, if so, in what amount. The Petitioner’s Final Agency Audit Report (FAAR) claims the Provider must repay $486,879.06.
Findings Of Fact The Petitioner is the state agency charged with the responsibility of administering the Medicaid Program in Florida. As such, the Petitioner monitors payments to Medicaid providers and seeks to recover reimbursements when an overpayment is claimed. At all times material to the allegations of this case, the Respondent was a licensed pharmacy and was designated a “provider” of Medicaid pharmacy services pursuant to its provider agreement with the Petitioner. As a provider of Medicaid pharmacy services, the Respondent was authorized to dispense drugs to Medicaid recipients and to bill the Medicaid Program for the expenses associated with such pharmacy services. The Petitioner may, after-the-fact, seek to verify the claims paid for Medicaid recipients. This “pay and chase” methodology presumes that the Provider will maintain appropriate documentation to support the paid claims. When the Agency audits a provider, records supporting the claims paid must be produced. In this case, the Petitioner elected to perform an “invoice audit” for the audit period June 2, 2003 through May 28, 2004. The Agency sought to review the Provider’s drug acquisition records for the same drugs that were dispensed to Medicaid recipients. The paid claims should compare to the drugs acquired and held in inventory for the subject period of time. After performing a Provisional Agency Audit Report (PAAR) detailing an alleged overpayment, the Provider was notified of the audit results and was provided a spreadsheet of the work papers that detailed the overpayment claim. The Provider was given an opportunity to provide additional documentation to support the Medicaid claims and to establish the inventory to support its claims. After an additional review of the Provider's information, the Agency issued its FAAR dated February 2, 2005, which claimed a Medicaid overpayment in the amount of $486,879.06. This amount has not been repaid to the Petitioner. Instead, the Provider disputed the amount of the overpayment and requested an administrative proceeding. That request was timely submitted. All of the audit results were provided to the Provider at the time of the issuance of the FAAR and were, in fact, attached to the request for hearing submitted by the Provider on or about February 7, 2005. Florida Medicaid providers are required by their agreements with the state to comply with the Florida Medicaid Prescribed Drug Services Coverage, Limitations, and Reimbursement Handbook (the handbook). The handbook is furnished to providers and is also available on-line. The handbook outlines requirements for record keeping, as well as other pertinent information to assist providers. In this case, the Provider was obligated to maintain records to support the Medicaid claims paid by the State. The Agency contracted with Heritage Information Systems, Inc., to conduct the audit in this case. Auditors went to the Provider’s business location in Hialeah, Florida, to analyze the Respondent’s business records. More specifically, the auditors sought the records from the Provider to show that it had acquired sufficient inventory of the specific drugs for which claims had been paid during the audit period. It stands to reason that the drug inventory on hand for the Provider had to exceed the drugs dispensed during the audit period (presumably some of the Provider’s patients were not Medicaid recipients). In fact, in this case, the Provider could not produce inventory records to support the claims paid for the audit period. As the records did not support the claims, the Agency deemed the claims to be overpayments. As such, the Agency maintains the Provider was, under the terms of the guidelines set forth in the handbook, required to reimburse the Petitioner for the overpayment. To compute the overpayment the Agency used a methodology that established the use rate of the product for the audit period. For example, for the drug Acetylcysteine the Medicaid recipient use rate for the audit period was 97.27 percent. Applying this percentage to the units purchased for the audit period would establish the expected claims. Therefore, since the Respondent purchased 16,890 units of this drug, the number of units billed would be expected to be 97.27 percent (the Medicaid use rate) of that amount. Instead, the claims for this drug for the audit period totaled 96,120-- a difference of 79,691 units. The difference (79,691) must then be multiplied by the drug's $.56 cost to show an apparent overcharge in the amount of $44,626.96 for this drug. The Agency applied the same methodology described above for 20 different drugs that were billed during the audit period. The total overcharge for these drugs was $486,879.06. The Respondent presented no evidence to refute the audit findings. No acquisition records were produced to reduce the calculated overpayment. That is to say, no purchase records could demonstrate that the Provider had on hand the number of units of the drugs billed to Medicaid. The Respondent has not disputed that the pharmacy was a provider, was subject to the handbook and pertinent guidelines, was required to maintain records to support the claims, and was paid for claims submitted to the Agency. Moreover, the Respondent does not dispute that the audit, the audit work papers, and the spreadsheets describing the methodology used to compute the overpayment were provided to the Provider more than 14 days prior to the hearing. It claims the trial book of exhibits was not provided 14 days prior to the hearing date. The hearing in this cause was originally scheduled for two days, to commence on August 15, 2006. The Agency provided a trial book of its exhibits to the Respondent on or about 4:00 p.m., August 1, 2006. The Respondent maintains that all evidence presented by the Agency in this cause must be excluded pursuant to Section 409.913(22), Florida Statutes (2005).
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 $486,879.06. DONE AND ENTERED this 1st day of December, 2006, 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 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 1st day of December, 2006. COPIES FURNISHED: Richard J. Shoop, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308 William Roberts, Acting General Counsel Agency for Health Care Administration Fort Knox Building, Suite 3431 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308 Christa Calamas, Secretary Agency for Health Care Administration Fort Knox Building, Suite 3116 2727 Mahan Drive Tallahassee, Florida 32308 David W. Nam, Esquire Agency for Health Care Administration Fort Knox Building, Mail Station 3 2727 Mahan Drive, Suite 3431 Tallahassee, Florida 32308 William M. Furlow, III, Esquire Akerman Senterfitt Highpoint Center, Suite 1200 106 East College Avenue Tallahassee, Florida 32301
The Issue The issue in this matter concerns the amount of monetary sanctions that the Agency for Health Care Administration may impose on Respondent pursuant to section 409.913, Florida Statutes, and Florida Administrative Code Rule 59G-9.070(7)(e) based on the overpayment of Medicaid reimbursements made to Respondent.
Findings Of Fact AHCA is designated as the single state agency authorized to make payments for medical assistance and related services under Title XIX of the Social Security Act, otherwise known as the Medicaid program. See § 409.902(1), Fla. Stat. AHCA is responsible for administering and overseeing the Medicaid program in the State of Florida. See § 409.913, Fla. Stat. AHCA's Bureau of Medicaid Program Integrity (“MPI”) is the unit within AHCA that oversees the activities of Florida Medicaid providers and recipients. MPI ensures that providers abide by Medicaid laws, policies, and rules. MPI is responsible for conducting audits, investigations, and reviews to determine possible fraud, abuse, overpayment, or neglect in the Medicaid program. See §409.913, Fla. Stat. At all times relevant to this proceeding, Respondent was an enrolled Medicaid provider authorized to receive reimbursement for covered services rendered to Medicaid recipients. Respondent had a valid Medicaid provider agreement with AHCA, Medicaid Provider No. 0742236-00. The Medicaid provider agreement is a voluntary contract between AHCA and the provider. As an enrolled Medicaid provider, Respondent was subject to the duly-enacted federal and state statutes, regulations, rules, policy guidelines, and Medicaid handbooks incorporated by reference into rule, which were in effect during the audit period. Pursuant to its statutory authority to oversee the integrity of the Medicaid program, MPI conducted an audit of Respondent's paid claims for Medicaid reimbursement for the period from April 1, 2011, through October 31, 2013. The audit’s purpose was to verify that claims AHCA paid to Respondent under the Medicaid program did not exceed the amount authorized by Medicaid laws, policies, and applicable rules. As a result of the audit, AHCA determined that Respondent was overpaid in the amount of $177,717.69 for services that, in whole or in part, were not covered under the Medicaid program. AHCA also sought to impose sanctions upon Respondent consisting of an administrative fine of $34,192.30,2/ as well as investigative, legal, and expert witness costs of $1,127.66. Respondent is a dentist specializing in pediatric dentistry. He has practiced for over 43 years. He maintains offices in both Clearwater and Jacksonville, Florida. Respondent’s dental practice serves almost exclusively developmentally disabled children. Many of his patients suffer from severe behavioral, emotional, mental, physical, or social handicaps or other medical issues. Respondent’s practice is primarily based on referrals of special needs patients who other pediatric and general dentists send to him for treatment. Approximately, 95 percent of Respondent’s patients are Medicaid recipients. At the final hearing, AHCA presented the testimony of Robi Olmstead, an AHCA administrator with MPI. Ms. Olmstead's responsibilities include overseeing MPI investigations and supervising AHCA staff’s performance of Medicaid audits. With over 10 years of experience in her position, Ms. Olmstead is very familiar with and knowledgeable about how MPI conducts Medicaid audits. Specifically related to this matter, Ms. Olmstead, in her official capacity with AHCA, signed the FAR that MPI presented to Respondent on April 8, 2015. Ms. Olmstead described MPI’s Medicaid audit of Respondent’s Medicaid claims.3/ Using AHCA's data support system, MPI investigators accessed the complete universe of Respondent’s Medicaid claims. MPI selected the period from April 1, 2011, through October 31, 2013, as the audit period. MPI calculated the amount of overpayment based on its review of a random sample of 35 recipients for whom Respondent submitted 507 claims during the audit period. AHCA then contacted Respondent and requested that he submit documents to substantiate his Medicaid claims for the 35 recipients. In response to AHCA’s request for documents, Respondent provided his records of service and billing for each of the 507 claims for the 35 recipients. AHCA, upon receiving Respondent’s records, forwarded them for a peer review. The peer reviewer evaluated the records and prepared worksheets reflecting a determination regarding the nature of the dental services rendered for each claim, and whether such claim was eligible for payment under the Medicaid program. Based on the peer reviewer’s determination, MPI calculated that Respondent had been overpaid for all claims he presented within the audit period by a total of $177,717.69. After determining that Respondent had been overpaid, AHCA prepared and sent to Respondent a Preliminary Audit Report (“PAR”), dated February 12, 2015. The PAR notified Respondent that the audit revealed that he had been overpaid by $177,717.69. On April 8, 2015, AHCA issued the FAR. The FAR served as AHCA’s final determination that Medicaid had overpaid Respondent. The FAR set forth the following bases for AHCA’s determination that Respondent was overpaid: Documentation Supported a Lower Level of Service (“LL”): The peer review of Respondent’s records revealed that the documentation Respondent submitted for payment did not support level of service for some claims. These claims may involve an established patient that Respondent coded as a new patient (which is billed at a higher level). AHCA believed that Respondent should have used a different code for the service he provided. AHCA considered the Medicaid payments made to Respondent for these services in excess of the appropriate amount an overpayment.4/ No Documentation (“No Doc”): Respondent’s records revealed that some medical services for which Respondent billed and received payment were incomplete or lacked sufficient documentation. AHCA considered the Medicaid payments for these services an overpayment.5/ Not Medically Necessary (“NMN”): The peer review of Respondent’s claims revealed that the documentation did not support the medical necessity of some of the claims Respondent presented for payment. (Respondent explained that this category of claims related to occlusal x-rays he obtained from dental patients for whom he also had taken panorex x-rays. The peer review considered these charges duplicative.) Therefore, AHCA considered the Medicaid payments made to Respondent for these claims an overpayment.6/ Erroneous Coding (“EC”): The peer review of Respondent’s claims revealed that some services rendered were erroneously coded on the submitted claim. These services documented one activity, but another billing code was identified. Consequently, AHCA considered Medicaid payments made to Respondent for claims in excess of the appropriate service an overpayment.7/ Behavioral Management (“BM”) Services Not Reimbursable: The peer review of Respondent’s claims revealed that Respondent did not adequately explain his claims for BM services. Respondent should not have requested payment for BM without explaining why BM was used or the specific type of BM techniques utilized for treatment. Furthermore, the peer review determined that Respondent should not have included BM in his claim if he also billed for either sedation or analgesia on the same date of service. AHCA considered Medicaid payments made to Respondent for these BM claims an overpayment.8/ The FAR also notified Respondent that AHCA had calculated and was seeking to assess a fine of $35,543.54 (since lowered to $34,192.30). Ms. Olmstead explained that, in accordance with section 409.913(15), (16), and (17) and rule 59G- 9.070, AHCA must apply sanctions for violations of federal and state laws, including Medicaid policy. AHCA determined to sanction Respondent in the form of an administrative fine. After determining that Respondent had been overpaid for Medicaid claims, AHCA prepared a Documentation Worksheet for Imposing Administrative Sanctions (“Worksheet”). The Worksheet was signed on April 7, 2015, by an AHCA investigator. Ms. Olmstead also signed the Worksheet after she reviewed and approved the form. The Worksheet specified how AHCA calculated the fine it sought to impose on Respondent for the Medicaid claims violations listed above. As noted on the Worksheet, AHCA found a total of 58 claims violated Medicaid laws, policies, and rules. The specific number of claims in violation were: lower level of service 38; no documentation, 9; not medically necessary, 8; error in coding, 2; and behavior management/illegal documentation, 1. The Worksheet also contained a section that read: Confirm that you have considered the following via checking the box: I have considered the serious & extent of the violation. I have considered whether there is evidence that the violation is continuing after written notice. I have considered whether the violation impacted the quality of medical care provided to Medicaid recipients. I have considered whether the licensing agency in any state in which the provider operates or has operated has taken any action against the provider. If the sanction to be imposed is suspension or termination, I have considered whether the sanction will impact access by recipients to Medicaid services. The AHCA investigator placed a checkmark by each consideration. AHCA did not use any additional forms or methods to document its consideration of these factors. AHCA did not provide the Worksheet to Respondent with the FAR. The Worksheet is an internal AHCA document the investigator and administrator use to calculate the amount of a fine. However, AHCA did include in the FAR the final monetary sanction which AHCA calculated on the Worksheet ($35,543.54). Ms. Olmstead stated that AHCA considered Respondent’s failure to comply with Medicaid laws a “first offense.” Pursuant to rule 59G-9.070(7)(e), AHCA shall impose a $1,000 fine per claim found to be in violation for a first offense. Accordingly, based on the 58 claims reviewed for the audit, AHCA calculated a fine of $58,000.00. Thereafter, rule 59G-9.070(4)(a) instructs AHCA to limit the monetary sanction for a “first offense” violation of Medicaid laws under rule 59G-9.070(7)(e) to twenty percent of the amount of the overpayment. Thus, AHCA reduced the amount of the fine it seeks to impose on Respondent to $34,192.30. Finally, Ms. Olmstead testified that the FAR cited to several documents that AHCA distributes to guide and inform providers of the types of services that the Medicaid program covers and how to correctly bill Medicaid for these services. The documents applicable to this matter are: the 2007 Florida Medicaid Dental Services Coverages and Limitations Handbook; the 2008 Florida Medicaid Provider General Handbook; the 2011 Florida Medicaid Dental Services Coverages and Limitations Handbook; and the 2012 Florida Medicaid Provider General Handbook. Respondent testified on his own behalf. Respondent testified that this Medicaid audit was the first he has experienced. Prior to this matter, he has never been fined or sanctioned for any violations of the Medicaid program. Respondent also emphasized that this Medicaid audit did not show that he ever rendered sub-quality dental care to any of his patients. Respondent acknowledged that he currently receives the Medicaid Handbooks electronically. Respondent conceded that he is bound to adhere to the Medicaid guidelines in the Handbooks. Respondent offered the following explanations for the claims he submitted which resulted in the overpayments: Not Medically Necessary: Respondent understood that AHCA determined that his claims for occlusal x-rays were considered duplicative. Respondent explained that the occlusal x-rays reveal tooth decay and disease that panorex x-rays do not. Furthermore, Respondent’s use of the occlusal x-rays did not result in any harm to his patients. On the contrary, Respondent expressed that these x-rays only enhanced the services and treatment he provided to his patients. Behavioral Management (“BM”) Services: The BM fee compensates the provider for the effort and time it takes to prepare a patient for dental treatment or control the patient during treatment. In many cases, if Respondent cannot employ BM techniques, he cannot render effective dental treatment. Respondent charges approximately $35 for BM services. Insufficient Records: Respondent stated that the medical notes and records that his office maintains meet or exceed Florida standards. However, certain of his records apparently did not comply with Medicaid program requirements. Respondent further asserted that AHCA never alleged that he sought payment for services he never delivered or were not completed. Sabrina Blake is the office manager for Respondent’s dental practice. As part of her responsibilities, she handles billing practice inquiries. Regarding AHCA’s claim of insufficient records to support the BM charges, Ms. Blake explained that Respondent marked “BM” on the patients’ records to indicate that a behavior management technique was used. The error was that Respondent did not write out exactly what behavior management technique was used during the treatment. Medicaid rules required additional information or documentation. Therefore, while Respondent’s practice did not provide the requisite notation to support a Medicaid payment for BM charges, Respondent did actually provide the service claimed. Respondent stated that AHCA never provided him the opportunity to correct any alleged violations or billing errors. Respondent claims that none of the disallowed charges or medical services were submitted to intentionally obtain an unauthorized payment from the Medicaid program. AHCA did not produce evidence to contradict Respondent’s assertion. Prior to the final hearing, the parties entered into an agreement wherein Respondent agreed to repay to AHCA the full amount of the overpayment Respondent received from the Medicaid program.9/ Based on the overpayment, AHCA seeks to impose on Respondent an administrative fine of $34,192.30. Accordingly, the primary issue for the undersigned to consider is whether AHCA is authorized under the applicable law to impose on Respondent an administrative sanction in the form of a fine as a result of his violation of Medicaid laws, rules, or policy. Based on the evidence presented at the final hearing, AHCA proved by clear and convincing evidence that Respondent failed to comply with provisions of the Medicaid laws.10/ As detailed below, section 409.913 and rule 59G-9.070 authorize AHCA to impose a fine on Respondent in the amount of $34,192.30 based on his violations of the Medicaid program. Consequently, a fine of $34,192.30 should be assessed against Respondent.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that AHCA issue a final order imposing an administrative fine of $34,192.30 for Respondent’s first offense of violating provisions of Medicaid provider publications adopted by AHCA rules, Florida or federal laws or regulations governing the Medicaid program, or the provider’s Medicaid agreement with AHCA. DONE AND ENTERED this 10th day of March, 2016, in Tallahassee, Leon County, Florida. S J. BRUCE CULPEPPER 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 10th day of March, 2016.
The Issue Whether Petitioner is entitled to an award of attorney's fees against Respondent pursuant to Section 57.111, Florida Statutes.
Findings Of Fact Petitioner was a prevailing small business party in DOAH Case 93-4194. Petitioner timely applied for an award of attorney's fees and costs pursuant to Section 57.111, Florida Statutes. The statutory cap of $15,000 is a reasonable amount for the award should it be concluded that Petitioner is entitled to fees and costs. In DOAH Case 93-4194, the Petitioner successfully challenged the Respondent's action in temporarily withholding all of Petitioner's payments under the medicaid program. John Whiddon, the Chief of the Florida Medicaid Program Integrity at that time, made the decision to withhold the payments to Petitioner. The information which triggered Mr. Whiddon's decision was a letter from John G. Morris, Jr., who was director of the Medicaid Fraud Control Unit. Mr. Morris advised that ". . . there is reliable evidence that the [Petitioner] billed for home health care services that were not provided and this investigation will be referred for criminal prosecution". The provisions of 42 CFR 455.23 authorize a State Medicaid agency such as the Respondent to withhold Medicaid payments, in whole or in part, upon receipt of the State agency of ". . . reliable evidence that the circumstances giving rise to the need for a withholding of payments involve fraud or willful misrepresentation under the Medicaid program." In DOAH Case 93-4194, it was concluded that Respondent had failed to establish that it had "reliable evidence" to withhold Petitioner's Medicaid payments. It was further found that even if Respondent had such reliable evidence, it could not withhold all of Petitioner's payments unless it proceeded pursuant to Section 120.59(3), Florida Statutes. Absent such emergency order pursuant to Section 120.59(3), Florida Statutes, it was concluded that any withholding would be subject to the following limitations on the withholding of Medicaid payments contained in Section 409.913(17), Florida Statutes: (17) The department may withhold Medicaid payments to a provider, up to the amount of the alleged overpayment, pending completion of an investigation under this section if it has reasonable cause to believe that the provider has committed one or more violations in relation to such payments. With the exception of providers terminated under the provisions of s. 120.59(3), in which case all payments shall be immediately terminated, the department may withhold payments under this provision, the monthly Medicaid payment may not be reduced by more than 10 percent, and the payments withheld must be paid to the provider within 60 days with interest at the rate of 10 percent a year upon determining that no such violation has occurred. If the amount of the alleged overpayment is in excess of $75,000, the department may reduce the Medicaid payments up to $25,000 per month. The Recommended Order in DOAH Case 93-4194 was adopted in toto by Respondent as a Final Order on January 28, 1994. The Medicaid Program Integrity is responsible for the oversight and regulatory aspect of the Florida Medicaid Program. Program Integrity is a part of the Agency for Health Care Administration and was formerly a part of the Department of Health and Rehabilitative Services. The Medicaid Fraud Control Unit (MFCU) is a part of the Office of the Auditor General. The MFCU is responsible for investigating abuse and criminal fraud pertaining to the medicaid program. Federal regulations require that Program Integrity and MFCU be totally separate and apart from each other. MFCU and Program Integrity operate under a memorandum of agreement which allows them to conduct separate investigations. When MFCU advises Program Integrity that it is investigating a Medicaid provider, Program Integrity routinely stops any investigation it may have started so as not to jeopardize the criminal investigation by the MFCU. Program Integrity is not provided any information about MFCU's criminal investigation until certain kinds of actions have occurred or when MFCU desires certain support. Mr. Whiddon testified that Program Integrity routinely takes administrative action against a Medicaid provider when it learns that MFCU is conducting a criminal investigation against that provider. Mr. Whiddon also testified that information received by Program Integrity from MFCU has historically proven to reliable. Mr. Whiddon did not testify as to the nature of the administrative action that is routinely taken when Program Integrity learns that MFCU is conducting a criminal investigation. There was no evidence as to the rules or statutes, other than a reference to 42 CFR 455.23, upon which Program Integrity bases such administrative actions. Based upon information from the Medicaid claims processing subsystem and the information from MFCU, Mr. Whiddon had reason to suspect that substantial sums were being paid to Petitioner for services for which there was no entitlement. The Petitioner was receiving approximately $28,900 per week from Medicaid when it was decided to temporarily withhold Medicaid payments. After the receipt of the MFCU letter, Mr. Whiddon believed something had to be done and began to review the options that he believed were available to him. Mr. Whiddon concluded that the most appropriate remedy was to withhold Medicaid payments pursuant to 42 CFR 455.23, which provides for a hearing at which the Petitioner could submit information that would justify its billings. Mr. Whiddon did not believe at the time he decided to temporarily withhold Petitioner's Medicaid payments that the issue was one of an overpayment. He also did not believe that it would be appropriate to issue an immediate final order pursuant to Section 120.59(3), Florida Statutes, because of the limited information available to him. Respondent failed to establish that it had reliable evidence to temporarily withhold all of Petitioner's Medicaid payments.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Petitioner, Stadtlander Drug Company, Inc. (SDC), is a provider of pharmacy services located at 600 Penn Center Boulevard, Pittsburgh, Pennsylvania. It is licensed by respondent, Agency for Health Care Administration (AHCA), as a special non-resident mail order pharmacy having been issued License No. PH 0013072. Petitioner is now enrolled as a Medicaid provider in twenty-three states around the country and provides mail-order drugs in all those states. In addition, it holds at least forty pharmacy licenses in various states, as well as thirty-five drug wholesale licenses. Petitioner's specialty is to target certain "disease states" and provide expensive, "high-tech" drugs to persons with serious, chronic illnesses such as cancer and AIDS. On November 7, 1995, petitioner submitted an application to respondent for enrollment as an out-of-state Medicaid provider. If the application is approved, petitioner would be assigned a Medicaid provider number and be able to provide prescription drugs by mail to Florida residents who reside within the State of Florida. It would then be reimbursed under the state's Medicaid program. After reviewing the application, including a supplemental submission by SDC, on February 28, 1996, AHCA denied the application on the following grounds: (Y)ou have failed to demonstrate that SDC meet the requirements for enrollment of out-of-state providers as outlined in Rule 59G-5.050, Florida Administrative Code (F.A.C.) Furthermore, SDC's locality would create an undo hardship on AHCA for meeting the requirments and oversight duties set forth in applicable federal laws, state statutes, administrative rules, regulations and manuals. For example, conducting on site audit reviews of your pharmacy operations, which requires (that) our field auditors take a physical inventory of the pharmacy department, and enforcing the oversight provisions cited in Section 409.913, Florida Statutes (F.S.), would be difficult and create an unwarranted expense. After receiving this advice, SDC filed a petition for hearing claiming that it had satisfied all pertinent requirements for enrollment. The parties have stipulated that there are no federal laws, administrative rules or manuals that would preclude SDC's enrollment as a Florida Medicaid provider and prevent it from providing prescribed drug services to qualified Medicaid beneficiaries who reside in the State of Florida. Under both federal and state law, AHCA is authorized to conduct audits of Medicaid pharmacy providers. The manner in which such audits are to be performed is set forth in the "Florida Medicaid/Unisys, Inc. Pharmacy Audit Program" manual. As a ground for denial, AHCA contends that, if the application is approved, an undue burden would be placed on the agency in auditing petitioner's records in Pittsburg. SDC acknowledges that there could be some hardship to AHCA in performing its audit responsibilities. SDC has, however, made accommodations to other states in attempting to address their concerns about the need to audit Medicaid pharmacy providers. For example, for the State of California, SDC maintains certified copies of all documents within that state to permit on-site inspection and comparison of records in California by the auditor. SDC has proposed to make the same kind of accommodation for AHCA. In addition to this accommodation, SDC is willing to answer by telephone any questions raised by Medicaid auditors and provide documentation for specific patients. Alternatively, if a Florida auditor found it necessary to make an audit of petitioner's offices in Pittsburg, SDC would willingly allow an on-site inspection. Other than the ground cited in its letter of denial, respondent offered no evidence to rebut SDT's showing that the accommodations are reasonable and adequate. Further, given these accommodations, there is no evidence that AHCA would suffer "an undue hardship" or that it would be unable to perform its auditing responsibilities under the Medicaid manual. Finally, since no Medicaid auditors from any of the twenty-three states in which SDC is certified as a Medicaid provider have found it necessary to make an audit in SDC's home office during the last four years, it is fair to draw an inference that the proffered accommodations would be satisfactory. AHCA has also denied the application on the ground petitioner does not meet any of the four criteria in Rule 59G-5.050(1), Florida Administrative Code. That rule specifies the circumstances under which an out-of-state provider may enroll in the Florida Medicaid program. Those criteria apply, however, when out-of-state providers intend to provide services to Florida recipients who purchase drugs while out of the State of Florida. In this case, petitioner intends to provide services by mail to recipients who reside within the State of Florida. Therefore, the rule does not apply. Because SDC has completed a provider agreement, is not under suspension in Florida or any other state, and has a current pharmacy license from AHCA, and its locality will not create an undue auditing hardship on AHCA, its application for enrollment as an out-of-state Medicaid provider should be approved.
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 granting petitioner's application for enrollment as an out-of-state Medicaid provider. DONE AND ENTERED this 16th day of August, 1996, in Tallahassee, Florida. DONALD R. ALEXANDER, 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 16th day of August, 1996. APPENDIX TO RECOMMENDED
Conclusions THE PARTIES resolved all disputed issues and executed a Settlement Agreement. The parties are directed to comply with the terms of the attached settlement agreement. Based on the foregoing, this file is CLOSED. DONE and ORDERED on this the a l ah, of fiderd , 2012, in Tallahassee, Leon County, Florida. 4% ‘ CA kh fo ELIZABETH DUDEK, SECRETARY Agency for Health Care Administration 1 Filed June 26, 2012 2:18 PM Division of Administrative Hearings A PARTY WHO IS ADVERSELY AFFECTED BY THIS FINAL ORDER IS ENTITLED TO A JUDICIAL REVIEW WHICH SHALL BE INSTITUTED BY FILING ONE COPY OF A NOTICE OF APPEAL WITH THE AGENCY CLERK OF AHCA, AND A SECOND COPY ALONG WITH FILING FEE AS PRESCRIBED BY LAW, WITH THE DISTRICT COURT OF APPEAL IN THE APPELLATE DISTRICT WHERE THE AGENCY MAINTAINS ITS HEADQUARTERS OR WHERE A PARTY RESIDES. REVIEW PROCEEDINGS SHALL BE CONDUCTED IN ACCORDANCE WITH THE FLORIDA APPELLATE RULES. THE NOTICE OF APPEAL MUST BE FILED WITHIN 30 DAYS OF RENDITION OF THE ORDER TO BE REVIEWED. Copies furnished to: Jeffries H. Duvall Assistant General Counsel Agency for Health Care Administration Office of the General Counsel (Interoffice) CYNTHIA A. MIKOS, ESQ. Allen Dell, P.A. 202 S. Rome Ave. - Suite 100 Tampa, FL 33606 cmikos@allendell.com (Electronic Mail) J.D. Parrish Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 Mike Blackburn, Bureau Chief, Medicaid Program Integrity Finance and Accounting Health Quality Assurance (via email) CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished to the above named addressees by U.S. Mail, Laserfiche or electronic mail on this the ZS" day of c JA » 2012. Richard Shoop, Esquire Agency Clerk State of Florida Agency for Health Care Administration 2727 Mahan Drive, MS #3 Tallahassee, Florida 32308-5403 (850) 412-3630/FAX (850) 921-0158 STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS STATE OF FLORIDA, AGENCY FOR HEALTH CARE ADMINISTRATION, Petitioner, vs. CASE NO. 11-5089MPI CI. NO. 11-1553-000 HILLSBOROUGH ASSOCIATION FOR RETARDED CITIZENS, INC., Respondent. / SETTLEMENT AGREEMENT STATE OF FLORIDA, AGENCY FOR HEALTH CARE ADMINISTRATION (‘AHCA” or “the Agency”), and Hillsborough Association for Retarded Citizens, Inc. (“PROVIDER”), by and through the undersigned, hereby stipulate and agree as follows: 1. The two parties enter into this agreement to memorialize the resolution of this matter. 2. PROVIDER is a Florida Medicaid provider, provider number 024102498 and was a provider during the audit period, January 1, 2009 to December 31, 2009. 3. In its Final Agency Audit Report (constituting final agency action) dated September 2, 2011, AHCA notified PROVIDER that review of Medicaid claims by the Division of Medicaid, Office of the Deputy Secretary, and Medicaid Program Integrity (MPI), Office of the AHCA Inspector General, indicated certain claims, in whole or in part, had been inappropriately paid. The Agency sought recoupment of this overpayment in the amount of $34,317.55. In response, PROVIDER filed a petition for formal administrative hearing. It was assigned DOAH Case No. 11-5089MPI. Hillsborough Association for Retarded Citizens, Inc. C.l. 11-1553-000 - Settlement Agreement 4. Subsequent to the original audit, in preparation for trial, AHCA re-reviewed the PROVIDER’s claims and evaluated additional documentation submitted by the PROVIDER. As a result of the additional review, AHCA determined the overpayment should be adjusted to $27,078.51, plus $5,415.70 in fines and $674.38 in costs for a total due of $33,168.59. 5. In order to resolve this matter without further administrative proceedings, PROVIDER and the AHCA agree as follows: (1) —AHCA agrees to accept the payment set forth herein in settlement of the overpayment issues arising from the captioned audit. (2) The amount in dispute that is now being resolved is twenty-seven thousand seventy eight dollars and fifty-one cents ($27,078.51) on the indebtedness, five thousand four hundred fifteen dollars and seventy cents ($5,415.70) in fines, plus six hundred seventy four dollars and thirty-eight cents ($674.38) in investigative costs for a total of thirty three thousand one hundred sixty eight dollars and fifty- nine cents ($33,168.59). PROVIDER will make an initial payment of eight thousand dollars ($8,000) and the remaining balance to be paid in 6 equal monthly installments. This amount due will be offset by any amount already received by the Agency in this matter. Furthermore, PROVIDER is advised that pursuant to Section 409.913, Florida Statutes, failure to pay in full, or enter into and abide by the terms of any repayment schedule set forth by the Agency may result in termination from the Medicaid program, withholding of future Medicaid payments, or other such remedies as provided by law. Any outstanding balance accrues at 10% interest per year. Full payment will fully and completely settle all claims in these proceedings before the Division of Administrative Hearings Hillsborough Association for Retarded Citizens, Inc. C.1. 11-1553-000 - Settlement Agreement 6. (DOAH Case No. 11-5089MPI). Should the provider’s enrollment with Medicaid be terminated, the full amount owed will be due within 30 days of termination. (3) In the event any interim payments are received or withheld, by whatever means, prior to the entry of the Final Order, Medicaid Accounts Receivable shall make the adjustment to credit such amounts, dollar for dollar, as quickly as is practicable. (4) Compliance with this repayment agreement fully and completely settles all claims in these proceedings before the Division of Administrative Hearings (DOAH Case No. 11-5089MPI). Should the provider’s enrollment with Medicaid be terminated, the full amount owed will be due within 30 days of termination. (5) PROVIDER and AHCA agree that full payment, as set forth above, resolves and settles this case completely. It will release both parties from any administrative or civil liabilities or claims arising from the findings in audit C.I. 11-1553-000. (6) PROVIDER agrees that it will not rebill the Medicaid Program in any manner for claims that were not covered by Medicaid, which are the subject of the audit in this case. Questions regarding procedures for submitting payment should be directed to Medicaid Accounts Receivable, (850) 412-3901. The C.I. number listed on the first page of this agreement must be legibly entered on the check to assure proper credit. Please mail payment to: AGENCY FOR HEALTHCARE ADMINISTRATION Medicaid Accounts Receivable — MS # 14 2727 Mahan Drive, Bldg. 2, Suite 200 Tallahassee, Florida 32308 Hillsborough Association for Retarded Citizens, Inc. C.1. 11-1553-000 - Settlement Agreement 7. PROVIDER agrees that failure to pay any monies due and owing under the terms of this Agreement shall constitute PROVIDER’S authorization for the Agency, without further notice, to withhold the total remaining amount due under the terms of this agreement from any monies due and owing to PROVIDER for any Medicaid claims. 8. AHCA reserves the right to enforce this Agreement under the laws of the State of Florida, the Rules of the Medicaid Program, and all other applicable rules and regulations. 9. This settlement does not constitute an admission of wrongdoing or error by either party with respect to this case or any other matter. 10. Each party shall bear its own attorneys’ fees and costs, with the exception that the Respondent shall reimburse, as part of this settlement, $674.38 in Agency costs and $5,415.70 in fines. This amount is included in the calculations and demand of paragraph 5(2). 11. The signatories to this Agreement, acting in a representative capacity, represent that they are duly authorized to enter into this Agreement on behalf of the respective parties. 12. This Agreement shall be construed in accordance with the provisions of the laws of Florida. Venue for any action arising from this Agreement shall be in Leon County, Florida. 13. This Agreement constitutes the entire agreement between PROVIDER and AHCA, including anyone acting for, associated with or employed by them, concerning all matters and supersedes any prior discussions, agreements or understandings; there are no promises, representations or agreements between PROVIDER and the AHCA other than as set forth herein. No modification or waiver of any provision shall be valid unless a written amendment to the Agreement is completed and properly executed by the parties. Hillsborough Association for Retarded Citizens, Inc. C.1. 11-1553-000 - Settlement Agreement 14. This is an Agreement of settlement and compromise, made in recognition that the parties may have different or incorrect understandings, information and contentions, as to facts and law, and with each party compromising and settling any potential correctness or incorrectness of its understandings, information and contentions as to facts and law, so that no misunderstanding or misinformation shall be a ground for rescission hereof. 15. | PROVIDER expressly waives in this matter its right to any hearing pursuant to sections 120.569 or 120.57, Florida Statutes, the making of findings of fact and conclusions of law by the Agency, and all further and other proceedings to which it may be entitled by law or rules of the Agency regarding this proceeding and any and all issues raised herein. PROVIDER further agrees that it shall not challenge or contest any Final Order entered in this matter which is consistent with the terms of this settlement agreement in any forum now or in the future available to it, including the right to any administrative proceeding, circuit or federal court action or any appeal. 16. This Agreement is and shall be deemed jointly drafted and written by all parties to it and shall not be construed or interpreted against the party originating or preparing it. 17. To the extent that any provision of this. Agreement is prohibited by law for any reason, such provision shall be effective to the extent not so prohibited, and such prohibition shall not affect any other provision of this Agreement. 18. This Agreement shall inure to the benefit of and be binding on each party’s successors, assigns, heirs, administrators, representatives and trustees. 19. All times stated herein are of the essence of this Agreement. Hillsborough Association for Retarded Citizens, Inc. C.|. 11-1553-000 - Settlement Agreement 20. This Agreement shall be in full force and effect upon execution by the respective parties in counterpart. ROUGH ASSOCIATION FOR RETARDED CITIZENS, INC. Dated: “A727 L ZZ 2012 py. UO CW “CCL FECL (Print name) ITS: SP OPC B22 20 Revi OLN 7 AGENCY FOR HEALTH CARE ADMINISTRATION 2727 Mahan Drive, Mail Stop #3 Tallahassee, FL 32308-5403 ‘ Dated: G/al 2012 Miller Inspector General Dated: bl f .2012 William H. Roberts Dated: Z f_,2012
The Issue The issue is whether Respondent failed to maintain a service plan for each of four residents, in violation of the Florida Medicaid Assistive Care Services Coverage and Limitations Handbook. If so, an additional issue is the sanctions that should be imposed.
Findings Of Fact Respondent owns and operates an assisted living facility known as Izquierdo Home Care I. At all material times, Respondent was enrolled in the Medicaid program as a provider authorized to supply assistive living services to Medicaid recipients at Izquierdo Home Care I. At all material times, Respondent was subject to the Florida Medicaid Assistive Care Services Coverage and Limitations Handbook. The handbook imposed upon Respondent the duty to develop a service plan for each Medicaid recipient not less often than annually. On March 27, 2012, Petitioner's inspector conducted a site visit of Izquierdo Home Care I. At the time of the site visit, the facility had six beds, but only four residents. According to a letter from Petitioner dated March 27, 2012, and delivered to Respondent's representative at the time of the inspection, the following four residents were Medicaid recipients: E. C., R. R., J. H., and A. R. However, according to the questionnaire completed by Respondent's representative at the time of the inspection, only two of the four current residents were Medicaid recipients, although the questionnaire does not identify these residents. In fact, A. R. had been discharged from Izquierdo Home Care I in September 2011. At the hearing, Petitioner's inspector confirmed that Respondent had not billed Medicaid for services for A. R. after the date of discharge. The second resident whose Medicaid status is in question was identified, in Respondent's proposed recommended order, as E. C. Respondent contends in its proposed recommended order that E. C. was not receiving Medicaid at the time of the inspection. If the Proposed Recommended Order were the only notice to Petitioner of Respondent's claim that a second resident was not a Medicaid recipient, the Administrative Law Judge would ignore this assertion because it is not evidence, and, as a defense, it was raised too late. However, the questionnaire, which was admitted as one of Petitioner's exhibits, is evidence that two of the four residents were not receiving Medicaid at the time of the inspection. In assessing the evidentiary record in terms of whether it establishes a third Medicaid recipient, the Administrative Law Judge notes: a) Petitioner has alleged a violation concerning A. R., even though A. R. was no longer a Medicaid recipient at the time of the inspection; b) at hearing, Petitioner's inspector was readily able to read the "query" to confirm that Respondent had not submitted a Medicaid billing on account of A. R. after September 2011 (Transcript 49); and c) as discussed in the Conclusions of Law, Petitioner bears the burden of proof by clear and convincing evidence. Under these circumstances, Petitioner has proved only that two residents of the facility were Medicaid recipients at the time of the inspection. There is no dispute that current service plans for two Medicaid recipients did not exist at the time of the March 2012 inspection.
Recommendation It is RECOMMENDED that the Agency for Health Care Administration enter a final order imposing a fine of $2000 against Respondent. DONE AND ENTERED this 26th day of October, 2012, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE 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 October, 2012. COPIES FURNISHED: Jeffries H. Duvall, Esquire Office of the General Counsel Agency for Health Care Administration Fort Knox Executive Center, Building 3 2727 Mahan Drive, Mail Station 3 Tallahassee, Florida 32308-5403 Julia Arrendell, Qualified Representative 13899 Biscayne Boulevard North Miami Beach, Florida 33181 Elizabeth Dudek, Secretary Office of the General Counsel Agency for Health Care Administration Fort Knox Executive Center, Building 3 2727 Mahan Drive, Mail Station 3 Tallahassee, Florida 32308-5403 Stuart Williams, General Counsel Office of the General Counsel Agency for Health Care Administration Fort Knox Executive Center, Building 3 2727 Mahan Drive, Mail Station 3 Tallahassee, Florida 32308-5403 Richard J. Shoop, Agency Clerk Office of the General Counsel Agency for Health Care Administration Fort Knox Executive Center, Building 3 2727 Mahan Drive, Mail Station 3 Tallahassee, Florida 32308-5403
The Issue Whether the Petitioner must reimburse the Respondent for Medicaid overpayments as set out in the Amended Final Agency Audit Report dated November 13, 2000, and, if so, the amount to be repaid.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: The Agency is the state agency responsible for the administration of the Medicaid program in Florida, and, as one of its duties, the Agency is charged with recovering overpayments made to Medicaid providers. Section 409.913, Florida Statutes (2000). At all times material to this proceeding, Peripheral Medical Services provided durable medical equipment and home health services to Medicaid recipients in Florida pursuant to a contract with the Agency, and it was assigned Medicaid provider number 950348000.2 The Medicaid Provider Agreement entered into by Peripheral Medical Services provides in pertinent part: The Provider agrees to participate in the Florida Medicaid program under the following terms and conditions: * * * (5) The Medicaid provider shall: * * * (b) Keep and maintain in a systematic and orderly manner all medical and Medicaid related records as the Agency may require and as it determines necessary; make available for state and federal audits for five years, complete and accurate medical, business, and fiscal records that fully justify and disclose the extent of the goods and services rendered and billings made under the Medicaid program. The provider agrees that only contemporaneously made records of goods and services provided will be admissible in evidence in any proceeding relating to payment for or provision of services for the purpose of supporting any claim submitted to or paid by the Medicaid program. After the Agency received a routine report from its Medicaid Program Office located in Miami, Florida, the Agency conducted an audit of the claims submitted by Peripheral Medical Services for the 27 Medicaid recipients to whom it provided oxygen durable medical equipment and services during the audit period extending from August 5, 1996, to July 6, 1998. Pursuant to certificates of medical necessity, Peripheral Medical Services provided each of the 27 Medicaid recipients with an oxygen concentrator during the audit period, and it submitted Medicaid claims for monthly visits to each of these patients. During the period of time covered by the audit, Peripheral Medical Services received payments for services provided to the 27 Medicaid recipients in an amount totaling $76,926.74. Peripheral Medical Services maintained patient records for these 27 Medicaid recipients, and, during the audit, it provided the Agency with the patient records as documentation to support the claims. At the times material to this proceeding, the DME/Medical Supply Services Coverage and Limitations Handbook governing "Oxygen and Oxygen Related Equipment" provided in pertinent part: "Monthly Home Visit Requirements: When the CRTT, RRT or RN conducts a home visit, the following information about the recipient's condition and the condition of the equipment must be documented in the recipient's record: . . . the monthly checks of the operation and safety of the equipment." The Agency's inspector compared the patient records to the list of claims submitted by Peripheral Medical Services for which it received payment from Medicaid, and he reached the following conclusions, which were memorialized in the audit work papers and the summary report he prepared: Peripheral Medical Services made 21 claims for payment for monthly visits to patient M.C., but it failed to provide documentation establishing that checks of the operation and safety of the oxygen concentrators were performed at 14 of the visits; $3,639.90 of the $6,106.80 paid by Medicaid was not supported by documentation. Peripheral Medical Services made 12 claims for payment for monthly visits to patient C.M., but it failed to provide documentation establishing that checks of the operation and safety of the oxygen concentrators were performed at eight of the visits; $2,498.20 of the $3,747.30 paid by Medicaid was not supported by documentation. Peripheral Medical Services made 14 claims for payment for monthly visits to patient J.P-O., but it failed to provide documentation establishing that checks of the operation and safety of the oxygen concentrators were performed at eight of the visits; $2,498.20 of the $4,340.55 paid by Medicaid was not supported by documentation. Peripheral Medical Services made 13 claims for payment for monthly visits to patient F.A., but it failed to provide documentation establishing that checks of the operation and safety of the oxygen concentrators were performed at eight of the visits; $2,361.63 of the $3,915.18 paid by Medicaid was not supported by documentation. Peripheral Medical Services made 20 claims for payment for monthly visits to patient N.V., but it failed to provide documentation establishing that checks of the operation and safety of the oxygen concentrators were performed at 12 of the visits; $3,595.18 of the $6,061.98 paid by Medicaid was not supported by documentation. Peripheral Medical Services made ten claims for payment for monthly visits to patient M.P., but it failed to provide documentation establishing that checks of the operation and safety of the oxygen concentrators were performed at six of the visits; $1,325.22 of the $2,270.36 paid by Medicaid was not supported by documentation. Peripheral Medical Services made one claim for payment for a monthly visit to patient M.A., and it provided documentation establishing that a check of the operation and safety of the oxygen concentrators was performed at this visit; the payment made by Medicaid was supported by documentation. Peripheral Medical Services made one claim for payment for a monthly visit to patient M.B., and it provided documentation establishing that a check of the operation and safety of the oxygen concentrators was performed at this visit; the payment made by Medicaid was supported by documentation. Peripheral Medical Services made 21 claims for payment for monthly visits to patient R.Q., but it failed to provide documentation establishing that checks of the operation and safety of the oxygen concentrators were performed at 15 of the visits; $4,172.69 of the $6,015.04 paid by Medicaid was not supported by documentation. Peripheral Medical Services made 19 claims for payment for monthly visits to patient M.P., but it failed to provide documentation establishing that checks of the operation and safety of the oxygen concentrators were performed at 12 of the visits; $3,975.64 of the $5,833.64 paid by Medicaid was not supported by documentation. Peripheral Medical Services made 11 claims for payment for monthly visits to patient E.D., but it failed to provide documentation establishing that checks of the operation and safety of the oxygen concentrators were performed at six of the visits; $1,813.19 of the $3,366.74 paid by Medicaid was not supported by documentation. Peripheral Medical Services made 15 claims for payment for monthly visits to patient I.S., but it failed to provide documentation establishing that checks of the operation and safety of the oxygen concentrators were performed at ten of the visits; $2,679.60 of the $4,233.15 paid by Medicaid was not supported by documentation. Peripheral Medical Services made five claims for payment for monthly visits to patient R.G., but it failed to provide documentation establishing that checks of the operation and safety of the oxygen concentrators were performed at any of the visits; the entire $1,522.25 paid by Medicaid was not supported by documentation. Peripheral Medical Services made one claim for payment for a monthly visit to patient R.B., and it provided documentation establishing that a check of the operation and safety of the oxygen concentrators was performed at this visit; the payment made by Medicaid was supported by documentation. Peripheral Medical Services made two claims for payment for monthly visits to patient A.A., but it failed to provide documentation establishing that a check of the operation and safety of the oxygen concentrators was performed at one of the visits; $320.10 of the $640.20 paid by Medicaid was not supported by documentation. Peripheral Medical Services made one claim for payment for a monthly visit to patient L.B., and it provided documentation establishing that a check of the operation and safety of the oxygen concentrators was performed at this visit; the payment made by Medicaid was supported by documentation. Peripheral Medical Services made 20 claims for payment for monthly visits to patient D.C., but it failed to provide documentation establishing that checks of the operation and safety of the oxygen concentrators were performed at 14 of the visits; $3,868.24 of the $5,726.24 paid by Medicaid was not supported by documentation. Peripheral Medical Services made one claim for payment for a monthly visit to patient D.M., and it provided documentation establishing that a check of the operation and safety of the oxygen concentrators was performed at this visit; the payment made by Medicaid was supported by documentation. Peripheral Medical Services made one claim for payment for a monthly visit to patient K.R., and it provided documentation establishing that a check of the operation and safety of the oxygen concentrators was performed at this visit; the payment made by Medicaid was supported by documentation. Peripheral Medical Services made 16 claims for payment for monthly visits to patient D.G., but it failed to provide documentation establishing that checks of the operation and safety of the oxygen concentrators were performed at ten of the visits; $2,954.88 of the $4,812.88 paid by Medicaid was not supported by documentation. Peripheral Medical Services made 23 claims for payment for monthly visits to patient M.V., but it failed to provide documentation establishing that checks of the operation and safety of the oxygen concentrators were performed at 15 of the visits; $4,172.69 of the $6,639.59 paid by Medicaid was not supported by documentation. Peripheral Medical Services made one claim for payment for a monthly visit to patient L.F., and it provided documentation establishing that a check of the operation and safety of the oxygen concentrators was performed at this visit; the payment made by Medicaid was supported by documentation. Peripheral Medical Services made six claims for payment for monthly visits to patient R.N., but it failed to provide documentation establishing that checks of the operation and safety of the oxygen concentrators were performed at any of the visits; the entire $1,920.60 paid by Medicaid was not supported by documentation. Peripheral Medical Services made 22 claims for payment for monthly visits to patient T.P., but it failed to provide documentation establishing that checks of the operation and safety of the oxygen concentrators were performed at 15 of the visits; $4,172.69 of the $6,335.14 paid by Medicaid was not supported by documentation. Peripheral Medical Services made nine claims for payment for monthly visits to patient A.V., but it failed to provide documentation establishing that checks of the operation and safety of the oxygen concentrators were performed at eight of the visits; $1,889.30 of the $2,102.70 paid by Medicaid was not supported by documentation. Peripheral Medical Services made two claims for payment for monthly visits to patient R.P., and it provided documentation establishing that checks of the operation and safety of the oxygen concentrators were performed at these visits; the payments made by Medicaid were supported by documentation. aa. Peripheral Medical Services made one claim for payment for a monthly visit to patient E.R., and it provided documentation establishing that a check of the operation and safety of the oxygen concentrators was performed at this visit; the payment made by Medicaid was supported by documentation. The patient records provided by Peripheral Medical Services do not contain documentation that the required operation and safety checks were performed in the months identified by the Agency in its audit work papers, and the Agency's calculations of the amounts paid by Medicaid that are subject to recoupment are supported by the summary report prepared by the Agency's inspector, as well as by the Agency's summary report. Peripheral Medical Services received payments totalling $49,380.20 from Medicaid on claims not supported by documentation.
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 finding that Peripheral Medical Services, Inc., was overpaid for services provided to Medicaid recipients for the audit period extending from August 5, 1996, to July 6, 1998, and requiring Peripheral Medical Services, Inc., to repay the Agency for Health Care Administration the principal amount of $49,380.20. DONE AND ENTERED this 8th day of November, 2001, in Tallahassee, Leon County, Florida. PATRICIA HART MALONO Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 8th day of November, 2001.
