The Issue Whether Respondent's certification as a support coordinator under the Medicaid waiver program should be renewed.
Findings Of Fact The Department is the state agency charged with the responsibility of regulating persons to be certified as support coordinators under the home and community based services program. At all times material to the allegations in this case, Respondent, Leonel Mederos, was certified as a support coordinator and did business through his company, Las Americas Support Services. For the period 1992 through 1995, Karlene Peyton was the program administrator for the Department's developmental services program which was responsible for the support coordinators under the home and community based services program. The developmental services program provides services to clients developmentally disabled, e.g., persons who are mentally retarded, have autism, cerebral palsy or spina bifida. Developmentally disabled persons are entitled to receive benefits such as supportive living services, employment services, training services, residential services, and case management services. The Department administers such services pursuant to Chapter 393, Florida Statutes, and Chapter 10F-13,Florida Administrative Code. As part of the system to provide services to the developmentally disabled, the home and community based services program (HCBSP) was established under the Medicaid program. This program adds a support coordinator who is not employed by the Department but who serves as a case manager for the client. In order to qualify under the HCBSP, clients must be Medicaid eligible and have the specified range of disability. For example, a client who is mentally retarded would be evaluated based upon their IQ level and deficiencies in activities of daily living. In the instant case, the persons providing assistance or case management to the developmentally disabled client are designated as waiver support coordinators. The waiver support coordinators are Medicaid providers. When the Department established the waiver support coordinators program, it promulgated statewide policies and written guidelines to regulate the system. It also developed district specific guidelines or policies. One policy, for example, is the limitation on the number of cases assigned to each support coordinator. A waiver support coordinator may not have more than thirty-five (35) clients. Respondent had been an employee with the Department at the time the waiver support coordinators program was established in Dade County. He left the agency to become, and was certified as, a Medicaid waiver support coordinator under the home and community based services program. Respondent qualified Las Americas Support Services as an entity through which waiver support coordinators might work. In order to become certified Respondent was required to complete training requirements related to statewide and district training. Topics covered in the training included Department rules and policies related to the Medicaid waiver program, support plans, plan implementation, services, record keeping, documentation of services and billing, and the use of the Department's computer system. As part of the application package completed on or about May 20, 1993, Respondent executed assurances which are part of the Medicaid provider agreement. The assurances are Respondent's representation to the Department that he will comply with specific conditions. These assurances provided, in pertinent part: 3. All individuals employed as support coordinators will meet the minimum require- ments of a bachelors degree in a human service field and two years of experience with individuals who have a developmental disability. Evidence of these qualifications will be maintained in each individual's employee personnel file. * * * 6. The provider shall maintain financial records in accordance with a recognized system of accounting to accurately reflect the details of the business and shall undergo an annual financial audit of its support coordination program, which may be part of an agency-wide audit. * * * 21. The provider assures that it will maintain the client central record in accordance with 393, F.S. * * * 24. The provider assures compliance with requirements of Chapter 393, F.S. and the proposed DS/Home and Community Based Services Waiver Rule, 10F-13, F.A.C. * * * 27. The provider assures that no more [than] thirty-five individuals will be assigned to a support coordinator who is serving Developmental Services HCBS waiver clients. * * * 29. The provider understands that payment for independent support coordination services is made from state and federal funds and that any falsification or concealment of a material fact may be prosecuted under state and federal laws. The provider further understands that such falsification or concealment is a breach of the DS/HCBS certification and may result in cancellation of same by the department. * * * 31. The provider agrees to return to the department any overpayments received that were disbursed to the provider by the depart- ment. In the event that the department discovers an overpayment has been made, the department will notify the provider of such a finding. Except for provided in No.32 below, the provider agrees to make repayment within thirty (30) days of recipt (sic) of such notification unless the parties are able to agree upon an alternative schedule. Respondent attended and completed the statewide training portion for certification in June, 1993. He completed the district training (with information pertinent specifically to District 11) in July, 1993. He was fully certified to perform as a support coordinator from July 1, 1993 through July 1, 1994. In June, 1994, as part of the recertification process, Respondent executed another assurances agreement. Subsequently, his certification was renewed for the period September 1, 1994 through February 28, 1995. This second assurances agreement, while not identical to the first, in substance had the same provisions as those outlined above in paragraph 17 above. For each client to be served by a waiver support coordinator, a support plan must be developed that identifies the specific services needed by the client. Such plan is developed with input from the client, the client's family, as well as the service providers who are to provide the needed services. The driving force to establish the support plan must be the client's individual needs. Once the support plan is in place the services coordinator must verify that the services are properly and satisfactorily delivered to the client. The coordinator must keep accurate case notes reflecting the date, time, and description of all services provided to the client. The documentation maintained by the services coordinator serves to verify that the services were delivered. As part of the process, the coordinator must also have a cost plan which identifies the expenses budgeted for each service the client is to receive. Every cost plan must be submitted to the Department for approval, and only services which have been approved may be billed by the service coordinator. Every support coordinator is required to maintain case notes of all activities performed on behalf of a client. No activity may be billed to the Medicaid waiver program which is not supported by case notes reflecting the identity of the client, the date of the service, the time of the service and the description of the service. At all times material to this case, the support coordinators billed time based upon quarter hour increments. For example, one through fifteen minutes was billed as one unit, sixteen through 30 minutes as two units, and so on for a total of 4 units per hour. Each support coordinator was responsible for logging their billing units directly into the Department's computer system. Only services which have been approved may be billed and may not include administrative duties such as faxing, copying, transferring case records or other office functions which are included in the rate paid to support coordinators. Each support coordinator is subject to a review wherein Department personnel audit client records to determine compliance with the Medicaid program policy requirements. In November, 1994, Department personnel were reviewing the qualifications of two persons employed as support coordinators through Respondent's company. When Respondent could not produce either the original degrees or authenticated transcripts for the two coordinators (which would evidence the requisite degree required for the coordinators), Respondent was instructed to return all case records assigned to the two workers to the Department. When the case records were returned, the Department discovered billing discrepancies. For example, it discovered Respondent had overbilled for certain clients and had billed for services not allowed. When this was uncovered, the Department elected to perform an in-depth review of the Respondent's business record keeping. The materials reviewed were from Respondent who was responsible for their origin and accuracy. From November 1994 through February 1995, the Department attempted to reconcile Respondent's case records with the billing which had been submitted to the agency by the Respondent. As a result of this audit, it is found the Respondent overbilled by billing more units that were documented. The Respondent overbilled by billing for services which are not allowed and had not been approved. The Respondent overbilled by billing for services provided by an unqualified services coordinators for whom appropriate documentation has not been provided. The Respondent overbilled by exceeding the amount of an authorized payment thereby making a payment not approved by the Department. In addition to the foregoing, the Respondent attempted to serve seventy (70) clients. Such number exceeds the number of clients a services coordinator is authorized to have. Based upon the foregoing, the Department decided on March 1, 1995 not to renew Respondent's certification. Respondent timely challenged that decision. The application and assurances executed by Respondent provided a notice that the failure to comply with the Medicaid waiver policies constitutes grounds for denying or cancelling certification in the program.
Recommendation Based on the foregoing, it is, hereby, RECOMMENDED: That the Department of Health and Rehabilitative Services enter a final order affirming the agency action letter of March 1, 1995, which determined not to renew the Respondent's certification. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 28th day of January, 1997. JOYOUS D. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 28th day of January, 1997. APPENDIX Rulings on the proposed findings of fact submitted by Petitioner: Paragraphs 1 through 12, 14 through 23, 25 through 31, and 33 are accepted. With regard to paragraph 13, the assurances contained, in substance, the same provisions but were not identical to the first ones executed by Respondent. With regard to paragraph 24, it is accepted that Respondent received a warning regarding soliciting clients otherwise rejected as irrelevant or not supported by the record. With regard to paragraph 32, it is accepted that Respondent was offered assistance for remediation purposes and was not singled-out for disparate treatment; otherwise rejected as irrelevant or argument or comment. Rulings on the proposed findings of fact submitted by Respondent: 1. Paragraphs 1 and 2 are rejected as argument, comment, or contrary to the weight of the credible evidence. COPIES FURNISHED: Myron M. Gold, Esquire FOX AND GOLD, P.A. 2900 South West 28th Terrace Miami, Florida 33133 Hilda A. Fluriach, Esquire Department of Health and Rehabilitative Services 401 Northwest 2nd Avenue, N-1014 Miami, Florida 33128 Gregory D. Venz, Agency Clerk Department of Children and Families Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Richard A. Doran, General Counsel Department of Children and Families Building 2, Room 204 1317 Winewood Boulevard Tallahassee,Florida 32399-0700
The Issue Whether or not Petitioner's application for certification as an Independent Waiver Support Coordinator should be approved.
Findings Of Fact Respondent is the state agency that implements programs and services for persons who are developmentally disabled. In this capacity, Respondent certifies and enrolls qualified individuals, private businesses, not-for-profit organizations, and units of local government to provide services to developmentally disabled persons under the Developmental Disabilities Program Developmental Services Home and Community- based Services waiver program. In so doing, Respondent must ensure that all federal requirements are met and that the health and welfare of developmentally disabled persons are protected. Respondent has established reasonable academic, training and experience criteria for individuals seeking to be enrolled and certified as Independent Waiver Support Coordinators as a part of the Developmental Disabilities Program Developmental Services Home and Community-based Services waiver program. For example, these minimum qualifications include a bachelor's degree and three years of professional experience in developmental disabilities, special education, or related fields. In addition to the academic, training and experience criteria, Respondent conducts background screening in an attempt to assess the suitability of individuals seeking to be enrolled and certified as Independent Waiver Support Coordinators. Part of the background screening involves a review of the work product, performance appraisals, and achieved outcomes of any applicant who has rendered services to individuals receiving developmental disabilities services. Respondent may deny certification to an applicant if it receives evidence of an adverse history with Respondent or the Agency for Health Care Administration as a result of background screening. Prior to Petitioner's application to be certified as an Independent Waiver Support Coordinator, she was employed by an institutional services provider which provided services to individuals with developmental disabilities; her job with the institutional services provider had essentially the same responsibilities as she would have if she became an Independent Waiver Support Coordinator. Respondent solicited and received an evaluation of Petitioner's work performance with the independent services provider. Petitioner's supervisor indicated that Petitioner's work was not satisfactory and that she would not rehire her. Respondent determined this negative evaluation as evidence of an adverse history sufficient to disqualify Petitioner and deny her certification.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a final order denying Petitioner's application for certification as an Independent Waiver Support Coordinator. DONE AND ENTERED this 12th day of September, 2002, in Tallahassee, Leon County, Florida. JEFF B. CLARK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 12th day of September, 2002. COPIES FURNISHED: Joseph K. Birch 34 East Pine Street Orlando, Florida 32802 Chelsea Predue-Washington Post Office Box 1117 Clarcona, Florida 32710-1117 Beryl Thompson-McClary, Esquire Department of Children and Family Services 400 West Robinson Street, Suite S-1106 Orlando, Florida 32801 Paul F. Flounlacker, Jr., Agency Clerk Department of Children and Family Services 1317 Winewood Boulevard Building 2, Room 204B Tallahassee, Florida 32399-0700 Josie Tomayo, General Counsel Department of Children and Family Services 1317 Winewood Boulevard Building 2, Room 204 Tallahassee, Florida 32399-0700
Findings Of Fact Petitioner, Dr. Juan C. Costa, is a physician who is currently retired because of a physical disability involving emphysema and arthritis. Before retiring, he- worked for a period of time as a physician at the Department of Corrections' Marion Correctional Institution near Ocala, Florida. His last day of actual work was December 15, 1984, but he remained on the payroll after that time because of vacation and sick leave time accrued. His actual termfnation date was some time in January, 1985. Dr. Costa is disabled. His disability is classified as a regular disability - not "in line of duty." Feeling that the provisions of the disability and survivor benefit program of the Florida Retirement System applied to him, on March 5, 1985, he applied to the State of Florida for disability retirement. Submitted with his application were statements from his employer and two physician reports indicating that he was, in fact, disabled. His application and the supporting documents submitted therewith were prepared in accordance with the terms of a letter Dr. Costa received from the State of Florida, Division of Retirement, which told him what must be submitted. In addition to the above, he also submitted a copy of a form submitted to the Social Security Administration for completion by that agency and return to the Division of Retirement which was a "Report of Confidential Social Security Benefit Information." This form, when filled out, was submitted to the Division of Retirement as support for Petitioner's application for retirement benefits. In addition to the above, Dr. Costa also submitted a letter which he received from Teresa Bender, Medical Examiner for Respondent's Disability Determination Section which indicates that it is unable to process his application because of an insufficiency of information regarding his social security credits. Dr. Costa was born on May 12, 1912. When he terminated his service with the Department of Corrections, he was 72 years old. He had been receiving Social Security Retirement benefits since age 70. However, he never applied for nor received Social Security Disability Benefits and would not have been awarded them had he applied for them after attaining age 65. Once an individual has reached age 65, he is no longer eligible for disability retirement benefits under the Social Security program. He may continue to earn money without limit at age 70, regardless of whether he is disabled or not. The issue of disability goes not to the issue of earnings but to the issue of the ability to work. If an individual under the age of 65, who is retired on disability benefits, goes back to work, those disability benefits may be lost. However, an individual who is disabled, but is age 70 or beyond, would not lose benefits because benefits after age 65 are based not on disability but on retirement and at age 70, the limitation on amount earned is removed. His Social Security Retirement Benefits checks began arriving in January, 1983. Because of his age, he continued to work without penalty after his benefits began. By deposition, Waymen D. Sewell, the District Manager for the Social Security Administration in Tallahassee, Florida indicated that the benefits received by an individual on the basis of disability will, upon that individual's reaching the age of "retirement," age 65, be converted automatically from disability benefits to retirement benefits. There will be no reduction in the amount of benefit received. The only change will be that the money forming the source of the payment will stop coming from the Disability Trust Fund and start coming from the Retirement Trust Fund. As far as the recipient is concerned, nothing changes. There is an additional qualification for disability retirement. An individual, in order to claim and receive disability retirement under social security, in addition to being fully insured, must have 20 quarters of work credit out of the 10 year period up to the quarter in which the onset of disability was established. Here, Petitioner is retired and receiving retirement benefits from Social Security. He initially filed for retirement benefits in January of 1981 and was paid retroactively to April, 1980. At the time, he had 24 quarters of credit. Since based on his birth date, he needed 24 quarters of enrollment, he had exactly what he needed and retired at the earliest possible time. Had Dr. Costa been under 65 at the time he retired, he would have needed 20 quarters within the last 10 year period prior to retirement in order to qualify for disability. According to the records on Petitioner, he did not have 20 quarters of credit during that period. The 24 quarters he had was over a period greater than 10 years and a part of it was earned after he became age 65. The quarters he earned after age 65 did not count toward the 20 quarter retirement because once an applicant turns 65, he is paid strictly on the basis of retirement and not disability. In substance, Dr. Costa was never eligible for disability retirement under Social Security until after he became age 65 at which point he became eligible for retirement benefits which would eliminate any entitlement to disability benefits. According to David Ragsdale, who works with Division of Retirement, under the Florida Retirement System statute there are two types of disability retirement (1) "in line of duty," and (2) "regular" retirement." "In line of duty" does not require more than one day service. "Regular" retirement initially required five years service prior to July 1, 1980. However, in July, 1980, the law was amended to add an alternative 10 year total service criteria as well as an exception from these criteria for those not drawing or eligible to draw Social Security disability. It is the policy of the Division of Retirement, as to the Social Security exception, that if an individual can get a Social Security benefit, he cannot secure retirement benefits from the State under the Social Security exemption. This is interpreted by the Division of Retirement to mean either Social Security type benefit - either retirement or disability and the receipt of either one disqualifies an individual from State disability retirement eligibility under the Social Security exception. Though some people receive State disability retirement while drawing Social Security benefits, they were not qualified for their State retirement under the Social Security exception. They had either worked more than five years as of July 1, 1980 or had 10 years total service. Dr. Costa's application was received by the Division of Retirement, but no determination as to his qualification for disability retirement from a medical standpoint was made. His application was not accepted because, on the face of it, he did not meet the service requirement in that he had neither 5 years service by July 1, 1980, nor 10 years service overall. He was also disqualified because he was receiving a Social Security benefit, albeit the benefit was the retirement benefit and not the disability benefit.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore RECOMMENDED that the Respondent, Department of Administration, Division of Retirement, accept and process Petitioner's application for regular disability retirement benefits. RECOMMENDED this 1st day of November,1985, in Tallahassee, Florida. ARNOLD H. POLLOCK Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 1st day of November,1985. COPIES FURNISHED: James M. Donohoe, Jr., Esq. P. O. Box 906 Gainesville, FL 32602 Stanley M. Danek, Esq. Assistant Division Attorney Division of Retirement Cedars Executive Center 2639 N. Monroe Street Suite 207 - Building C Tallahassee, FL 32303 Gilda Lambert Secretary Department of Administration 435 Carlton Building Tallahassee, FL 32301 ================================================================ =
The Issue The issue is whether Petitioner and her family are entitled to services on account of her developmental disability.
Findings Of Fact Petitioner was born on September 8, 1981. Seven years ago, she suffered a severe brain injury as a result of five hours of diabetes-induced seizures resulting from low blood sugar. The incident left Petitioner in an entirely dependent state. Presently, at 20 years old, Petitioner has the intellectual development of a two-year-old and requires constant care, seven days a week, 24 hours a day. Petitioner's present condition actually represents a marked improvement from her condition immediately after the seizures and brain injury. Declining to institutionalize Petitioner, her parents have provided the care that Petitioner has needed to regain her abilities to walk and talk (with considerable difficulty) and to use her arms and hands. Despite these dramatic developments, Petitioner still requires as much care as she required immediately after the injury; she cannot, for example, feed herself or maintain continence. Behaviorally, Petitioner presents a considerable challenge due to her nonexistent impulse control and tendency toward explosive outbursts. At 5 feet, seven inches tall and 200 pounds, Petitioner is strong, and she is capable of attacking with unmediated force. Petitioner's father, who is 48 years old, is six feet, one inch tall and weighs 350 pounds. Her mother, who is 42 years old, is at least the size of Petitioner. When infuriated, Petitioner can physically overpower her parents, as well as her 18-year-old and 22-year- old siblings--all of whom have suffered injuries from Petitioner's attacks. Petitioner's father has suffered cellulitis at the site of an injury that he sustained from one of his daughter's attacks. Petitioner has a very limited attention span and frustrates easily. She does not like being closed in, and, when upset, she strikes out. In addition to attacking her caregivers, Petitioner has damaged property in her outbursts. Her father estimates that Petitioner has broken seven motor vehicle windshields--sometimes while the vehicle was in operation. Several times a day Petitioner becomes agitated and engages in physical outbursts. Managing Petitioner's unpredictable and dangerous behavior has placed considerable demands on her parents. Petitioner's father is the senior pastor of North Palm Baptist Church in Miami. Petitioner's mother is an administrative assistant to the Director of Missions of the Miami Baptist Association. Each weekday during the school year, Petitioner leaves home at 6:00 a.m. to ride a bus to her special school, and she returns by bus at 3:30 p.m. Her father must cut short his workday to meet the school bus each afternoon. For respite care, Petitioner's parents seek the assistance of a person capable medically of supervising Petitioner's severe diabetes, such as administering her injections, and capable physically of handling Petitioner's disruptive behavior. Petitioner's father normally sleeps near Petitioner, who wakes up every time her covers come off, which may happen 75 times a night. The intensive, unending care that Petitioner's parents have had to provide their daughter has caused them great stress. For speech therapy, Petitioner's parents seek assistance to remediate Petitioner's extensive verbal deficits. For two years after the incident, Petitioner was nonverbal. Her ability to articulate has slowly improved, but she remains nonverbal at school. For personal services, Petitioner's parents seek the assistance of a person to meet Petitioner when she gets off the bus from school, give her a snack, bathe her, and attend her until her parents come home from work. This person must have the physical capability of ensuring that Petitioner does not injure herself or others during one of her frequent and unpredictable outbursts. Petitioner and her parents moved to Florida from South Carolina in July 2000. Within a month, Petitioner had applied for developmental disability services. However, Petitioner has not been able to obtain general revenue-funded services or Home and Community-Based Waiver services funded by Medicaid. In rejecting Petitioner's request for services, Respondent has relied on two documents: "Developmental Disabilities Home and Community Based Services Waiver Fiscal Year 2001-2002 Spending Plan Instructions" (Spending Plan) and "Developmental Disabilities Program Crisis Identification Tool-- revised 9/2001" (Crisis Identification Tool). Respondent also relies on testimony that Petitioner lacks the funds to provide developmental disability services to all applicants. Although Respondent does not dispute that Petitioner otherwise qualifies for the developmental disability services that she seeks--from both programs--Respondent contends that she does not qualify under the Spending Plan and related documents, which Respondent contends it must apply due to the lack of funds. The Spending Plan states in part: By June 30, 2001, [Respondent] expects to serve 25,002 persons through the Developmental Disabilities Home and Community Based Services Waiver (Waiver). . . . In order to be able to serve the greatest number of persons possible within the legislative appropriation for Waiver services, [Respondent] will implement a number of strategies to ensure that appropriate Waiver services are provided in the most cost-effective manner. . . . * * * Spending Plan priority for FY 01-02: Remaining persons from July 1, 1999 waiting list--350 persons who will be served during July and August 2001. Cramer v. Bush class members--estimated 20 persons who will be served upon request, throughout the fiscal year. Persons who are determined to be [in] crisis who were not on the original waiting list--estimated at 10 persons per month and to be served throughout the fiscal year. Persons discharged from the Mentally Retarded Defendant Program. Persons who have become clients since July 1, 1999, in date order (new waiting list)--projected to be approximately 6,284 persons remaining to be phased in between March 2002 and June 2002, subject to vacancies on the Waiver and available funding. The list of such individuals will be developed at the central office; persons will be served in date order, based on the date the individual became a client. In order to serve the estimated 6,774 individuals who are projected to want and need Waiver serves during FY 01-02, enrollment on the Waiver will be phased in as described above. Compliance with the Spending Plan Compliance with the approved Spending Plan for FY 2001-2002 is required of all Department employees. The Central Office will monitor all enrollment activity and notify districts when an individual has been enrolled on the Waiver, and to proceed with the provision of services. The Central Office of the Developmental Disabilities Program will review and process District requests for assignment of a Waiver slot, based on the District's "crisis" determination. Upon completion of the Central Office review, where the Central Office has confirmed a determination of "crisis", the District will be notified when the individual is enrolled on the Waiver, and to proceed with the provision of services. The use of non-Waiver funds (Individual and Family Supports (IFS) budget category) to fund services for additional persons who are awaiting enrollment on the Waiver is prohibited. Personal Care Assistance Services As required by Medicaid regulations, [Respondent] must require the use of regular Medicaid State Plan services when the individual is eligible to receive the services through the Medicaid State Plan. Provision of Waiver services must also comply with federally approved service definitions. Developmental Disabilities currently provides personal care assistance services to 1,232 children. Some of these children may be eligible under regular Medicaid EPSDT (Early, Periodic Screening, Diagnosis & Treatment) coverage. Medicaid state plan covers Personal Care Assistance for children who are eligible to receive nursing services. Children eligible for personal care assistance under Medicaid state plan must receive the service through this funding. [The ensuing five paragraphs continue to discuss children, the Medicaid state plan, and the Waiver.] New requests for personal care assistance will be assessed first to determine whether Medicaid state plan is appropriate. If this is not appropriate, the need for coverage under the Waiver will be made according to the federally approved service description. * * * Require Use of Waiver Funding, where available Because of limited funding and the need to maximize the use of General Revenue funds by obtaining federally matching funds wherever possible, Individual and Family Supports (IFS) funding is no longer available for persons who are eligible to receive Waiver- funded services, but who have refused services funded through the Waiver. Some people who are eligible have rejected services funded through the Waiver. [Respondent] will offer Waiver services to those individuals. For those who continue to refuse services funded through the Waiver, IFS expenditures will be discontinued due to lack of funding, with appropriate due process notice. Maximize Federal Funding Similarly, effective immediately, all covered Waiver services must be provided through Waiver funding. The purchase of Waiver billable services through the IFS budget category is no longer allowable, unless the Central Office has approved an exception. * * * The legislative proviso language supplied after the hearing by Respondent consists of selections of "Conference Report on SB 2000: General Appropriations for 2001-02--May 1, 2001." The relevant portion states: Funds in Specific Appropriations 374 and 377 are intended to provide Home and Community-Based Services Waiver Services in accordance with a spending plan developed by [Respondent] and submitted to the Executive Office of the Governor for approval by November 1, 2001. Such plan shall include a financially feasible timeframe for providing services to persons who are on waiting lists for fiscal years 1999-2000 and 2000-2001 and those eligible persons who apply for services during fiscal year 2001-2002. Such persons shall be enrolled in the waiver in accordance with [Respondent's] policy for serving persons on the waiting list. Two other, related documents are relevant. The Crisis Identification Tool identifies several categories of crisis. The first category is a criminal court order. The second category is a danger to self or others, which requires a current exhibition of "behaviors that": result in harm to the person or others that, in turn, creates a life-threatening situation for the person or others or will result in bodily harm to the person or others that will require emergency medical care from a physician if services are not provided immediately. The other categories are "confirmed abuse/neglect," "homeless[ness]," "caregiver unable to give care," and "health issues." Under the unable-caregiver category, the Crisis Identification Tool adds: The individual's current caregiver is expressing extreme duress, is no longer safely able to provide care for the individual due to advanced age, illness or injury and the individual is in immediate need of services in order to remain living with the caregiver or to locate an alternative living arrangement. . . . The remainder of the Crisis Identification Tool warns applicants that there is a waiting list for services in the Waiver program, even for those applicants classified as in crisis. Developmental Disabilities Program Policy Directive PD#01-07, issued September 25, 2001 (Policy Directive), confirms this warning when it warns: With 2001-02 appropriations and the Spending Plan, "[Respondent] will have funding to enroll up to a total of ten persons per month statewide on the Waiver, who are in crisis." Noting that the Crisis Identification Tool will remain in effect until June 30, 2002, the Policy Directive emphasizes that "[t]his policy will clarify the procedures used in determining the ten crisis cases per month statewide in accordance with the 2001-2002 Spending Plan." The Policy Directive describes the procedures for completing and examining a Crisis Identification Tool. The Policy Directive notes that, for applicants posing a danger to self or others, the District's behavioral analyst, local review committee chair, or other appropriate behavior analysis professional must review the Crisis Identification Tool and make a recommendation. After completing its tasks, the District committee sends the Crisis Identification Tool to the Developmental Disabilities central office in Tallahassee. The central office meets one week monthly, through June 2002, to "determine individuals in most critical need." The Policy Directive adds that the "[i]ndividuals who were not selected . . . will be carried forward and reconsidered each month until they are determined to be one of the ten crisis cases for a month or they are served in accordance with the spending plan." In the alternative, the central office may also find that the individual is "not . . . in need of immediate waiver services" and inform the individual of its finding. As noted in the Preliminary Statement, Petitioner seeks developmental disability services in DOAH Case No. 02-1238 and in DOAH Case No. 02-1241. The Developmental Disabilities Hearing Request described in the Preliminary Statement distinguishes between two programs based on funding sources: Medicaid waiver and general revenue. DOAH Case No. 02-1241 requests services under the Home and Community-Based Services Waiver program, in which the federal government has provided Florida with funds, under a waiver of institutionalization requirements, for certain developmental disability services to eligible persons. DOAH Case No. 02-1238 requests services under a state program in which Respondent uses largely, if not exclusively, general revenue funds to purchase certain developmental disability services for eligible persons. The focus of both these cases has not been on Petitioner's general eligibility, but on Respondent's limited funds and Petitioner's eligibility based on spending-prioritization policies that Respondent has adopted and the Legislature has approved. The Spending Plan, Crisis Identification Tool and legislative proviso language approving the Spending Plan all expressly pertain to the Waiver program. The Spending Plan addresses the relationship between the Waiver program with the general revenue-funded program, which is identified at least partly as Individual and Family Supports funding, by warning that persons who have refused Medicaid Waiver-funded services or who are even "awaiting enrollment" in the Waiver program may no longer obtain general revenue-funded services. Under the Spending Plan, Crisis Identification Tool and legislative proviso language, Petitioner is properly denied developmental disability services under the Medicaid Waiver-funded program. In addition to confirming the insufficiency of funds in the Waiver program, these documents demonstrate that Petitioner fails to satisfy a prioritization criterion that could gain her earlier funding. Arguably, Petitioner was entitled to classification as an individual in crisis, either due to her posing a danger to her self or others or due to the "extreme duress" suffered by her parents as caregivers. However, the record permits no basis to overturn the decision of Respondent's central office that, for each month, other crisis applications posed greater urgency. Although the central office should have maintained Petitioner's Crisis Identification Tool for reconsideration each month, the record permits no basis to revisit any of the central office's decisions during the ensuing months, and the term of the procedures governing the use of the Crisis Identification Tool expired at the end of last month. However, the Spending Plan, Crisis Identification Tool, and legislative proviso language do not address the general revenue-funded program. Petitioner is eligible for developmental disability services covered by this program. Respondent's proof of lack of funds in this program is itself insufficient, unsupported by the documentation that accompanies Respondent's same claim as to Medicaid Waiver-funded services.
Recommendation It is RECOMMENDED that the Department of Children and Family Services enter a final order granting Petitioner's application for covered developmental disability services in DOAH Case No. 02-1238 and denying Petitioner's application for developmental disability services in DOAH Case No. 02-1241. DONE AND ENTERED this 10th day of July, 2002, in Tallahassee, Leon County, Florida. ROBERT E. MEALE 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 10th day of July, 2002. COPIES FURNISHED: Paul F. Flounlacker, Jr., Agency Clerk Department of Children and Family Services 1317 Winewood Boulevard Building 2, Room 204B Tallahassee, Florida 32399-0700 Josie Tomayo, General Counsel Department of Children and Family Services 1317 Winewood Boulevard Building 2, Room 204 Tallahassee, Florida 32399-0700 Reverend Ronald Satterwhite Qualified Representative 8260 Northwest 172nd Street Hialeah, Florida 33015 Hilda Fluriach District 11 Legal Counsel Department of Children and Family Services 401 Northwest Second Avenue Suite N-1020 Miami, Florida 33128
The Issue The issue in this proceeding is whether Petitioner Monroe Lee Kelly, the minor son of his personal representative and mother, Kimberly Maffei Kelly, should immediately receive developmental services or remain on a waiting list for such services.
Findings Of Fact Monroe Lee Kelly is three years old and displays verbal apraxia. Verbal apraxia is delayed speech development. He became a client of Developmental Services on July 28, 2000, after a legislatively designated funding cut-off date of July 1, 1999. Monroe Kelly was receiving speech therapy through Children's Medical Services. However, because he turned three years old he no longer qualifies for services under the medical program even though his apraxia is still a problem. Therefore, the medical program referred Monroe Kelly to Developmental Services for evaluation. Petitioner's mother was also informed by the Department that her son could receive speech therapy to ameliorate this condition from the school system. Verbal apraxia puts Monroe Lee Kelly at risk of having a developmental disability, but is not itself a developmental disability. Testing at a later date will ascertain whether he actually has a developmental disability. Until such testing can be accomplished, however, pursuant to federal law and long-standing policy, the Department regards Monroe Lee Kelly as a client because of his risk status. His mother, for personal reasons, did not apply for benefits through the Medicaid Waiver program. Thus Monroe Lee Kelly is a client of the Developmental Services Program of the Department and is therefore eligible to receive developmental services from that program. The only question is whether Monroe Lee Kelly should receive those services for which he is eligible immediately or remain on the waiting list. Currently there are approximately eight thousand persons who became clients of the Developmental Services Program after July 1, 2000. A long and complex chain of events and circumstances led to the situation faced by Monroe Lee Kelly. Prior to the 1999 legislative session and after federal litigation, the Department identified 23,361 Developmental Services clients who were enrolled in the developmental services program but were receiving inadequate services. The Governor, members of the Legislature, and the Department met to address this problem and jointly proposed to the Legislature for fiscal year 1999-2000, a plan to address the underserved clients over a two-year period. Under this plan, 15,984 of the identified 23,361 clients would be served during fiscal year 1999-2000, with the remaining 7377 clients to be added to the group in fiscal year 2000-2001. The Legislature elected to route the new moneys into the Medicaid Waiver program, because that program provided for a 45/55 State/Federal match, under which fifty-five cents of federal moneys would be provided for every forty-five cents contributed by the Florida Legislature. Since most of these clients resided in the community and not in institutions, the program utilized under this plan was not the Institutional Medicaid program, but the Home Community Based Waiver program. The Home Community Based Waiver program, also called the Medicaid Waiver program, differs from the Institutional Medicaid program. The Institutional Medicaid program is an entitlement program. The Medicaid Waiver program is not. Consequently, the moneys which fund the Medicaid Waiver program are limited and claims on them must be prioritized. The Legislature directed the Department to prioritize these limited funds by requiring that they be spent first on providing full services to the 23,361 clients already known to the Department as of July 1, 2000. The Department implemented this mandate by implementing policy that, except for crisis situations, only persons who were clients on July 1, 2000, would receive services. All others would be put on a waiting list. The Department is currently working on a Legislative Budget Request for the coming year which will address the needs of clients, such as Monroe Lee Kelly who came into the system after July 1, 2000. Even so, Monroe Lee Kelly is not eligible for the Medicaid Waiver since Ms. Kelly has declined to apply for Medicaid. The funds she seeks come from another source, the Individual and Family Support appropriation. Nevertheless, for the reasons set forth below, the result in this case is the same as if her child had been on the Medicaid Waiver. In order to consistently apply the legislative intent behind this appropriation scheme to all Developmental Services clients, the Department has applied the prioritization described in paragraph 7, not only to the appropriations made through the Medicaid Waiver program, but also to those relating to the Individual and Family Support appropriation. The prioritization is required because, in the past two years, the Legislature has not appropriated any new funds under the Individual and Family Support Program. Thus, since the existing client base in Developmental Services remained stable, the new client base has increased by approximately 8,000 clients since July 1, 1999, and the Department can only provide funds to new clients by withholding services from existing clients who received these services in past years. An untenable result. Moreover, the interests of fairness require that the allocation of Developmental Services money be made on a consistent basis. This is particularly true inasmuch as many of the clients who receive Medicaid Waiver funds also receive Individual and Family Support funds. Finally, the Department's prioritization puts at the top of the list those clients who are in crisis. Under these circumstances, the Department's decision to allocate the Individual and Family Support moneys entrusted to it by the Legislature in the same manner as the Medicaid Waiver moneys is not unreasonable or unfair. Because Monroe Lee Kelly became a client after July 1, 1999, he can only receive services if he is in crisis. The Department has identified six conditions which, if present, constitute a crisis which would permit it to provide services to persons who became clients after July 1, 1999. These are: A court order from a criminal proceeding requires the Department to provide services. The client is highly dangerous to himself or others, and danger will continue if services are not provided immediately. The client is living in a high risk situation in which abuse and/or neglect is occurring or likely to occur. The client is homeless, living either in a homeless shelter or on the street. The caregiver is unable to provide care for the client, no alternative arrangements are possible, and without the provision of services, the client cannot safely remain with the caregiver. Other circumstances exist which will present a danger to the client's safety and/or security if services are not provided. Monroe Lee Kelly met none of the foregoing criteria. Consequently, the Department could not provide him the services his mother sought on his behalf.
Recommendation Based upon the findings of fact and conclusions of law, it is RECOMMENDED: That the Department of Children and Family Services enter a Final Order leaving Monroe Lee Kelly on the waiting list of clients to be served by the Department's Developmental Services Program. DONE AND ENTERED this 19th day of December, 2000, in Tallahassee, Leon County, Florida. DIANE CLEAVINGER 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 19th day of December, 2000. COPIES FURNISHED: Kimberly Maffei Kelly 9127 Foxwood Drive Tallahassee, Florida 32308 John R. Perry, Esquire Department of Children and Family Services 2639 North Monroe Street, Suite 100A Tallahassee, Florida 32399-2949 Virginia A. Daire, Agency Clerk Department of Children and Family Services Building 2, Room 204B 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Josie Tomayo, General Counsel Department of Children and Family Services 1317 Winewood Boulevard Building 2, Room 204 Tallahassee, Florida 32399-0700
The Issue The principal issue in this case is whether the Petitioner is entitled to reimbursement under the State of Florida Group Health Insurance Plan for certain health care expenses she has incurred since she became a State employee and enrolled in the Plan. The Petitioner contends that she is entitled to reimbursement and to attorney's fees. The Respondent contends that the Petitioner is entitled to neither. The central factual dispute is whether the Petitioner's claim for benefits is barred by the provision in the Plan which excludes benefits for pre-existing conditions during the first 365 days of participation in the Plan. At the formal hearing in this case, the Petitioner testified on her own behalf and also presented the testimony of Donald M. Whitley, II, Ph.D. The Respondent presented the testimony of Mr. William Seaton. Both parties offered exhibits. Also, the parties stipulated to the filing of the transcript of the deposition of F. A. Munasifi, M.D., as a late-filed exhibit. Subsequent to the hearing both parties filed proposed recommended orders, which have been carefully considered during the preparation of this recommended order. Specific rulings on the findings of fact proposed by both parties are contained in the Appendix which is attached to and incorporated into this recommended order.
Findings Of Fact Based on the stipulations and admissions of the parties, on the exhibits received in evidence, and on the testimony of the witnesses at hearing, I make the following findings of fact. Findings based on admissions Petitioner, Terri J. Ganson, (hereinafter "Petitioner" or "Ganson") enrolled in the State of Florida Group Health Insurance Plan (hereinafter "Plan") in January, 1986, and has been validly enrolled as a member in good standing since said date. The pre-existing condition exclusion appears as Subsection VIII.C. of the State Employees Group Self-Insurance Document and provides: For any accident or illness for which an insured received diagnostic treatment or received services within three hundred and sixty-five (365) consecutive days prior to the effective date of coverage, no payment will be allowed for services related to such accident or illness which are received during the three hundred and sixty-five (365) conse- cutive days subsequent to the effective date of coverage; however covered services related to such accident or illness which are received after three hundred and sixty-five (365) consecutive days of coverage are cover- ed by the plan. The Plan, at Subsection I.AE., defines "illness" as follows: "Illness" means physical sickness or disease, pregnancy, bodily injury, congenital anomaly or mental or nervous disorder. Illness for the purposes of this Plan shall entitle an insured to benefits for any medically nece- ssary services related to elective surgical procedures performed by a physician for the purpose of sterilization. By the terms of the Plan, the pre-existing condition paragraph of the Plan applied to claims filed by Petitioner for treatments received during the period from February 1, 1986, until January 31, 1987. Those claims submitted by Petitioner or on Petitioner's behalf for reimbursement under the Plan which were denied on the basis of the pre-existing condition exclusion and which are the subject of this dispute amount to a total of $5,682.15 for services provided by the following providers in the respective amounts shown: a. TMRMC $2,352.65 b. Dr. Shamis $225.50 c. Dr. Munasifi $50.00 d. Biomedical Ref. $50.00 e. Dr. Whitley $3,000.00 The services received by Petitioner for which reimbursement is in dispute were services actually received by Petitioner, Petitioner was charged for such services in the aggregate amounts specified, such services were medically necessary treatments, such services were rendered for the treatment of bipolar disorder, and such services were otherwise covered by the Plan. Petitioner is entitled to reimbursement for the amount of the charges for such services, without limitation or exclusion, if said condition for which services were rendered did not constitute a pre-existing condition (i.e., an "accident or illness" for which Petitioner "received diagnostic treatment or received services within three hundred and sixty-five days prior to . . ." her enrollment in the Plan. Findings based on the testimony and the exhibits Prior to her enrollment in the Plan, the Petitioner had been diagnosed as having situational depression, for which she had received treatment prior to her enrollment in the Plan. Part of that treatment occurred within three hundred sixty-five days immediately preceding Petitioner's enrollment in the Plan. Prior to her enrollment in the Plan, the Petitioner had never been diagnosed as having bipolar affective disorder. Prior to her enrollment in the Plan, the Petitioner had never been treated for bipolar affective disorder. Bipolar affective disorder is believed to be caused by a deregulation of the chemical neurotransmitters in the brain. The primary treatment modality for bipolar affective disorder is the administration of lithium carbonate. The administration of lithium carbonate is specific for bipolar affective disorder and the use of lithium carbonate is one of the main differences between treatment for bipolar affective disorder and the type of depression for which Petitioner was treated prior to her enrollment in the Plan. Behavioral therapy may also be of assistance in the treatment of the symptoms of bipolar affective disorder, as it is in the treatment of the symptoms of other conditions which cause depression. Situational depression and bipolar affective disorder are separate and distinct conditions; they are not the same condition. Specifically, the former is not an earlier stage of the latter. The fact that both conditions have certain common symptoms (i.e., periods of depression) does not mean that they are the same condition.
Recommendation Based on all of the foregoing, I recommend the entry of a Final Order to the following effect: Reimbursing the Petitioner for her medical expenses in the amounts stipulated to by the parties, namely, $5,682.15; and Denying the Petitioner's claim for attorney's fees in this proceeding. DONE AND ENTERED this 30th day of November, 1987, at Tallahassee, Florida. MICHAEL M. PARRISH, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of November, 1987. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 87-1654 The following are my specific rulings on all of the findings of the findings of fact proposed by the parties: Findings proposed by Petitioner: Paragraph 1 (including subparts [a] through [f]): Accepted. Paragraphs 2 and 3: Rejected as unnecessary details in light of admitted facts. Paragraphs 4 and 5: Accepted in substance with most details omitted as unnecessary. Paragraph 6: First sentence accepted. Second sentence rejected as unnecessary details. Paragraphs 7, 8, 9, 10, 11, 12, 13, and 14: Rejected as unnecessary details in light of admitted facts. Paragraphs 15, 16, 17, and 18: Rejected as subordinate and unnecessary details. Paragraph 19: First sentence accepted. Second sentence rejected as subordinate and unnecessary details. Paragraphs 20 and 21: Accepted. Paragraphs 22, 23, 24, 25, 26, 27, and 28: Rejected as subordinate and unnecessary details. Paragraph 29: First sentence accepted in substance. Remainder of this paragraph rejected as subordinate and unnecessary details. Paragraphs 30, 31 and 32: Accepted in substance. Paragraphs 33, 34, and 35: Rejected as unnecessary details in light of admitted facts. Paragraphs 36, 37, 38, 39, 40, 41, 42, 43, 44, 45, and 46: Rejected as subordinate and unnecessary details. Paragraphs 47, 48, 49, 50, and 51: Rejected as consti-tuting summaries of argument rather than proposed findings of fact. Findings proposed by Respondent: Paragraphs 1, 2, and 3: Rejected as unnecessary details in light of admitted facts, with exception of proposed finding regarding effective date of coverage. Paragraphs 4, 5, and 6: Accepted in substance. Paragraph 7: Accepted in substance with unnecesary details deleted. Paragraph 8: Rejected as subordinate and unnecessary details. Paragraphs 9 and 10: Rejected as unnecessary details in light of the admitted facts and also as not entirely consistent with the greater weight of the evidence. Paragraph 11: Rejected as subordinate and unnecessary details. Paragraph 12: Accepted in substance as to date of first diagnosis. Rejected insofar as it suggests that Dr. Munasifi "refused" to make a particular statement. Paragraph 13: Rejected as subordinate and unnecessary details. Paragraph 14: Accepted as to nature of diagnosis. The remainder is rejected as subordinate and unnecessary details. Paragraph 15: First sentence is accepted. Second sentence is rejected as contrary to the greater weight of the evidence. Third and fourth sentences are rejected as irrelevant or as subordinate and unnecessary details. Paragraphs 16 and 17: Rejected as subordinate and unnecessary details. Paragraph 18: Rejected as irrelevant and as an over- simplification which suggests an inference not warranted by the greater weight of the evidence. Final unnumbered summary paragraph: Rejected as constituting a summary of testimony rather than proposed findings of fact and, in any event, as subordinate and unnecessary details. COPIES FURNISHED: Kenneth D. Kranz, Esquire Eric B. Tilton, P.A. P. O. Drawer 550 Tallahassee, Florida 32302 Augustus D. Aikens, Jr., Esquire General Counsel Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 Adis Vila, Secretary Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 =================================================================
The Issue Whether Allcare Health and Human Services, Inc. (Respondent), a Medicaid provider, was overpaid by the Florida Medicaid Program as alleged in the Amended Final Audit Report (Amended FAR) dated August 31, 2012. Also at issue are the amounts of any overpayment, whether any penalty should be imposed (and the amount thereof), and whether the Agency for Health Care Administration (Petitioner) is entitled to recover its costs (and the amount thereof).
Findings Of Fact At all times relevant to this proceeding, Respondent has been a provider with the Florida Medicaid Program and has had a valid Medicaid Provider Agreement with Petitioner. Petitioner is the agency of the State of Florida charged with the responsibility of administering the Florida Medicaid Program. Among its duties, Petitioner is required to conduct audits and to recover "overpayments . . . as appropriate." Section 409.913(1)(e) 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." Petitioner's Bureau of Medicaid Services has the responsibility for polices regarding Developmental Disabilities Waiver and Provider Reimbursement. At all times relevant to this proceeding, Respondent was subject to all applicable federal and state laws, regulations, rules, and Medicaid Handbooks. Respondent is required to comply with the Florida Medicaid Provider General Handbook, the Developmental Disabilities Waiver Services Coverage and Limitations Handbook, and the Provider Reimbursement Handbook. Respondent is an experienced Medicaid provider that provides a variety of Medicaid services. Respondent's annual billings to the Medicaid program exceed $1,000,000.00. Among the Medicaid services it provides, Respondent provides Companion Services (billing code S5135) to recipients under the Developmental Disabilities Home and Community Based Services Waiver Program. There is coverage limitation for Companion Services. A recipient can receive no more than 24 quarter-hours (six hours) of Companion Services per day and no more than 30 hours of Companion Services per week. The alleged overpayments at issue were based on billings for days on which Companion Services exceeded six hours. As part of a larger audit of Medicaid providers, Petitioner audited Respondent based on billings for Companion Services submitted by Respondent and paid by Petitioner. All of the services at issue in this proceeding were paid by Petitioner to Respondent based on Respondent's billings. Taking information reflected by Respondent's billings for Companion Services to 46 recipients during the audit period, Petitioner generated a Preliminary Audit Report (PAR) on March 14, 2012. The PAR cited the Coverage Handbook, statues, and rules Petitioner relied upon. Petitioner attached to the PAR a detailed audit report that determined that Respondent was overpaid $135,023.38 for Companion Services during the audit period. The PAR was not final agency action. Respondent was advised of the following options: Pay the identified overpayment in this notice within 15 days of the receipt of this letter and wait for the issuance of the final audit report. If you wish to submit documentation in support of the claims identified as overpayments, you must do so within 15 days of receipt of this letter. Documentation that appears to be altered, or in any other way appears not to be authentic, will not serve to reduce the overpayment. Documentation must clearly identify which discrepancy, as set forth in the attached audit findings, it purports to support. Any documentation received will be taken under consideration and you will be notified of the results of the review. If you choose not to respond, wait for the issuance of the final audit report. The PAR also contained the following advice: A final audit report will be issued that will include the final identified overpayment, applied sanctions, and assessed costs, taking into consideration any information or documentation that you have already submitted. Any amount due will be offset by any amount already received by the Agency in this matter. The final audit report will inform you of any hearing rights that you may wish to exercise. Respondent did not respond to the PAR. Ms. Williams testified, credibly, that she was out of the country because of her mother's death when the PAR was issued. Petitioner generated a Final Audit Report (FAR) dated April 13, 2012, and subsequently an Amended FAR dated August 31, 2012, which assessed against Respondent the alleged overpayment in the amount of $135,023.38, a fine in the amount of $27,004.68, and costs in the amount of $49.22.1 Ms. Williams received the FAR. The Amended FAR was filed after the matter had been referred to DOAH. The undersigned granted Petitioner's motion to file the Amended FAR without objection from Respondent. The amount of the alleged overpayment remained the same in the PAR, FAR, and Amended FAR. The amounts of the fine and costs remained the same in the FAR and Amended FAR. Billings are submitted by providers using a form that is available, together with applicable billing guidelines, on the Medicaid Fiscal Agent Web Portal at "http://mymedicaid- florida.com." Ms. Williams, who prepares all of the Medicaid billings for Respondent, routinely uses that website and is familiar with its contents. Ms. Williams knows how to access and complete billing forms. She also knows how to access handbooks, including information as to coverage limitations. The billing form used by Medicaid providers has a "from date of service" column and a "to date of service" column. For Companion Services, the form will permit a provider to put only one date of service. For each of the challenged billings at issue in this proceeding, the same date was listed in these two columns. As an example, Mr. Posey's audit analysis for recipient A.B.L. on Bates stamp page 56 of Petitioner's Exhibit 3 reflects that the first "from date of service" was March 31, 2010, and the "to date of service" was also March 31, 2010. The number of units billed and paid for was 40 quarter-hours. Since the coverage limitation is 24 quarter-hours for a day, Mr. Posey determined that the provider was overpaid by 16 quarter-hour units for that billing day. Mr. Posey determined the reimbursement rate for each quarter-hour unit of service and multiplied that rate by the number of excess quarter-hour units. That product is the amount of the overpayment for that date. Using the same example for recipient A.B.L. on March 31, 2010, the auditor multiplied 16 quarter-hour units by $3.37 (the quarter hour reimbursement rate), and determined that the provider had been overpaid $53.92 for that date of service for that recipient. Mr. Posey performed a similar analysis for each of Respondent's billings during the audit period and determined the overpayment for all days of service on which the billed amount for the recipient exceeded 16 quarter-hour units of service. The auditor then added the overpayments, with the resulting sum being $135,023.38, the amount of the claimed overpayment. Respondent asserts that it did not receive any overpayment because it utilized "span" billing, i.e., it provided services over more than one day, but billed for those services under the last day the service was performed. Some coverage limitations are based on time periods greater than one day. There are coverage limitations based on weekly, monthly, and annual periods. Span billing for those periods is acceptable in that the provider is to insert the date the service began in the "from date of service" column and the date the service ended in the "to date of service" column. While the billing form will not permit different dates in these two columns if the service has a one-day coverage limitation, the form will permit different dates if the coverage limitation for a service is based on more than a one-day period. Ms. Williams testified that she provided Petitioner with time records of her employees who actually provided the subject services to the different recipients. According to Ms. Williams, those records substantiate her claim that there was no overpayment. Those records were provided to Petitioner after the issuance of the FAR. Petitioner did not analyze those records. Those time records were not introduced as evidence, and there was no other evidence to support Ms. Williams' testimony.2 Ms. Williams testified that she had not been trained that span billing was not permitted where there is a one-day coverage limitation. Ms. Williams knew or should have known that Companion Services had a one-day coverage limitation. Respondent's billings do not justify the payments it received. Petitioner has recouped an overpayment from Respondent on one prior occasion. Among other topics, the FAR advised Respondent of its right to request an administrative hearing pursuant to the provisions of chapter 120. Thereafter, Respondent requested a formal administrative hearing, the matter was referred to DOAH, and this proceeding followed. The overpayments at issue are the result of Respondent's misinterpretation of Petitioner's billing requirements. No fraud or abuse is involved in this proceeding.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Agency for Health Care Administration enter a final order finding that Allcare Health and Human Services, Inc., was overpaid by the Florida Medicaid Program in the principal amount of $135,023.38. It is further recommended that the final order require Allcare Health and Human Services, Inc., to repay the Florida Medicaid the amount of $135,023.38 together with applicable interest and cost in the amount of $49.22. It is further recommended that the final order impose against Allcare Health and Human Services, Inc., an administrative fine in the amount of $27,004.68. S DONE AND ENTERED this 18th day of January, 2013, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON 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 18th day of January, 2013.
The Issue Whether Petitioner's application for disability retirement benefits should be reinstated.
Findings Of Fact Petitioner Joyce Layton is a member of the Florida Retirement System. In November 2002, Ms. Layton submitted an application for disability retirement benefits to the Division. The application was not notarized and was incomplete. Several documents were needed to process the application. By letter dated December 10, 2002, the Division wrote Ms. Layton acknowledging receipt of the disability application and requesting additional information. Enclosed with the letter were two blank FR-13b forms (Physician's Statement Forms), which were necessary to complete the application. Ms. Layton did not respond to the December 10, 2002, letter. The Division mailed another request on January 13, 2003, again, including two blank FR-13b forms with the letter. Ms. Layton did not respond to the January 13, 2003, letter. On February 17, 2003, the Division mailed a third request for information to Ms. Layton. Blank FR-13b forms were also included with this letter. Ms. Layton did not respond to the February 17, 2003, letter. The Division mailed a fourth request to Ms. Layton on March 24, 2003, again, requesting information necessary to complete her application for disability retirement benefits. After the Division did not receive a response to its previous letters, it sent a letter dated April 15, 2003, by certified mail, to Ms. Layton advising her that she had 21 days from the date of the letter to submit the necessary information or her application would be cancelled. Ms. Layton did not respond to this letter. Finally, the Division sent a letter dated June 3, 2003, by certified mail, to Ms. Layton notifying her that her disability application was cancelled and giving her 21 days to request a hearing. She did receive this letter, and this timely appeal followed. The applicant is responsible for ensuring the Division receives the information necessary to process an application for disability retirement benefits. Ms. Layton did not provide the necessary information.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That the Department of Management Services, Division of Retirement, issue a final order denying the request of Petitioner, Joyce E. Layton, to reinstate her disability retirement application. DONE AND ENTERED this 16th day of June, 2004, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON 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 16th day of June, 2004. COPIES FURNISHED: Thomas E. Wright, Esquire Division of Retirement Department of Management Services Cedars Executive Center, Building C 2639 North Monroe Street Tallahassee, Florida 32399-1560 Joyce E. Layton 5980 Boyette Road Wesley Chapel, Florida 33544 Sarabeth Snuggs, Interim Director Division of Retirement Department of Management Services 2639 North Monroe Street Tallahassee, Florida 32399-1560 Alberto Dominquez, General Counsel Department of Management Services 2639 North Monroe Street Tallahassee, Florida 32399-1560
The Issue The issue is whether Respondent is entitled to recovery of overpayments of disability benefits resulting from the alleged failure to reduce such payments by offsetting social security benefits.
Findings Of Fact From March 1, 2007, until February 26, 2010, Petitioner was employed by the Department of Health as a Dental Consultant for the Prosecution Services Unit. During the period of his employment, Petitioner was a Select Exempt Service employee. Respondent is responsible for the administration of the state group insurance program. As authorized by law, Respondent has contracted with NorthGate Arinso to provide human resources management services, including the administration of employee health insurance benefits. The electronic portal for state employees to access personnel information is the “People First” system. During his employment with the Department of Health, Petitioner participated in the Florida state group insurance program, and was enrolled as a member of the State Employees PPO Plan. At the time of his enrollment in the state group insurance program, Respondent was provided with the Senior Management and Select Exempt Service Employees' State Group Disability Insurance Program benefits booklet. The booklet provides, under the heading "Benefit Reduction Provisions," that: Benefits payable under this insurance will be reduced by the amount of: Any disability or retirement Social Security Benefits for which the employee is eligible, and benefits for which the employee's spouse or children are eligible as a result of the employee's eligibility for Social Security benefits. DSGI reserves the right to estimate the amounts of any Social Security benefits until the employee has applied for such benefits and the Social Security Administration has made a final determination, and to reduce the plan benefits as if these Social Security benefits were paid. Benefit payments made by DSGI will be adjusted when a determination is made by the Social Security Administration. If such a determination reveals an overpayment by the Plan, DSGI has the right to recover any such overpayment. Petitioner has a supplemental disability life insurance policy with the Cigna insurance company. The supplemental policy is not administered by Respondent, and did not affect the state disability insurance benefits. While employed at the Department of Health, Petitioner began to experience debilitating health problems. By October, 2009, his condition had advanced to the degree that he could no longer work. Petitioner began to contemplate going on disability. He was uncertain as to whether he would be allowed to resign from state employment and still qualify for disability benefits. Petitioner?s daughter, Karen Halperin Cyphers, researched the issue and discovered that it had been resolved by judicial decision in a manner that would allow Petitioner to retire from state employment, but maintain his disability benefits for the full term allowed by law. Ms. Cyphers sought confirmation from Respondent that Petitioner would qualify for disability benefits if he resigned his position. On January 29, 2010, Respondent e-mailed a letter to Ms. Cyphers confirming that “benefits will not terminate solely because an insured terminates employment with the state. To be eligible for these benefits, all other requirements must be satisfied.” On February 17, 2010, Petitioner filed his claim for benefits under the state disability plan, and the required Attending Physician?s Statement. The Attending Physician?s Statement confirmed that Petitioner was not able to work. Petitioner thereafter went on leave-without-pay status on February 18, 2010. His last day of employment with the Department of Health was February 27, 2010. Petitioner was eligible for state disability benefits for 364 days, or into February, 2011. At all times pertinent to this proceeding, Petitioner?s wife, Dr. Gail Halperin,1/ was responsible for handling the family?s finances. Petitioner consulted with Mrs. Halperin when he was able. However, the severity of Petitioner?s medical condition, which necessitated a stay of almost five weeks at the Mayo Clinic, often made communications regarding finances impractical. Mrs. Halperin used electronic banking services, and frequently checked the family account to ensure that the bi- weekly state disability benefit payments had been deposited. On March 12, 2010, Mrs. Halperin wrote to Respondent to object to an underpayment in one of the first disability benefit payments to Petitioner. The underpayment amount resulted from an issue regarding four days of available leave, which would have made Petitioner ineligible for benefits for the period of March 1 through March 4, 2010. In her e-mail, Mrs. Halperin acknowledged having read the "Benefit Reduction Provisions" of the benefits booklet regarding reduction of state benefits by Social Security benefits, but as to any such reductions of Petitioner?s state benefits, noted that Petitioner “did apply of [sic] social security, but he does not expect to hear from them for quite some time.” The underpayment issue was resolved, and Petitioner was ultimately paid for the disputed four days. By a Notice of Award from the Social Security Administration dated September 3, 2010, Petitioner was notified that he had been determined to be entitled to Social Security Disability benefits in the amount of $1,818.00 per month. He received his regular monthly payment for September, 2010, and a lump-sum payment of $5,454.00, for the months of June-August, 2010. As was her practice regarding state disability payments, Mrs. Halperin regularly checked her bank accounts to ensure that the payments were deposited, and knew that Social Security Disability Income benefits were being paid to Petitioner. Petitioner did not inform Respondent when he became eligible for Social Security Disability Income benefits, or when he began receiving those payments. During his period of disability, Petitioner had a dispute with Cigna regarding its denial of a waiver of his supplemental disability policy premium. On November 14, 2010, Mrs. Halperin sent an appeal of the denial to Rhonda Whethers, an employee of Cigna. The appeal, sent by e-mail, consisted of roughly nine pages of printed text and eight exhibits. Mrs. Halperin described Petitioner's medical condition in detail, and requested that Cigna waive the premium to keep the policy in effect. Mrs. Halperin sent copies of the appeal to Cigna's manager of Specialty Lines Administration, to the Director of Cabinet Affairs for the Florida Attorney General, to the Insurance Consumer Advocate for the Department of Financial Services, and to Michele Robletto, the DSGI Division Director. In the description of Petitioner's medical condition, Mrs. Halperin stated that "[i]ndeed, Minnesota Life, the State of Florida through the State Group Health Plan, and the U.S. Social Security Disability Insurance (SSDI) program have fully approved [Petitioner's] claim of total disability from ANY and ALL work." That statement is the only time in which mention of Petitioner's Social Security benefits was made to Respondent. The reference, which was not directed to Respondent, is too indirect to constitute notice to Respondent of Petitioner's Social Security benefits. On February 1, 2011, Respondent sent Petitioner a notice that his Attending Physician?s Statement had not been updated. On February 6, 2011, in response to the previous notice, Mrs. Halperin sent a copy of the September 3, 2010, Notice of Award from the Social Security Administration to Respondent. That letter was the first disclosure to Respondent of Petitioner's eligibility for, and receipt of, payments of Social Security disability benefits. Based on the September 3, 2010 letter, Respondent determined that Petitioner had been receiving state disability benefits without the reduction of Social Security benefits as provided for by rule. Thereafter, Respondent calculated that Petitioner was overpaid in the amount of $13,925.82. On February 21, 2011, Respondent notified Petitioner that it had overpaid him $13,925.82, in State Group Disability Income benefits. That figure is found to accurately reflect the amount of state benefits that were not reduced by corresponding payments of Social Security benefits. Petitioner argues that neither rule 60P-9.005 nor the the Senior Management and Select Exempt Service Employees' State Group Disability Insurance Program benefits booklet contains a requirement that a recipient of state disability benefits notify Respondent of eligibility for or receipt of Social Security disability benefits, and that as a result, Respondent should be estopped from recovering any overpayments. Rule 60P-9.005 and the Senior Management and Select Exempt Service Employees' State Group Disability Insurance Program benefits booklet are both clear and unequivocal that state disability benefits are to be reduced by Social Security disability benefits. Respondent receives no information directly from the federal government regarding disability benefits. Thus, it is the responsibility of recipients of state disability income to understand and comply with the law. Petitioner testified that neither he nor his family had any intent to mislead the state. The undersigned accepts that as true. Nonetheless, Petitioner received state disability benefits after he became eligible for and began receiving Social Security benefits, without the reduction required by law. Thus, Respondent is entitled to recovery of the overpayments.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Department of Management Services enter a final order finding that Respondent is entitled to recovery of overpayments of disability benefits in the amount of $13,925.82. DONE AND ENTERED this 19th day of April, 2012, in Tallahassee, Leon County, Florida. S E. GARY EARLY 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 19th day of April, 2012.
